IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA312/2020
 [2020] NZCA 398

	
BETWEEN	
RAHLA ALMARZOUQI
Applicant	
	
AND	
NEW ZEALAND POLICE
Respondent	

Court:	
Courtney, Wylie and Muir JJ	

Counsel:	
Applicant in person
BCL Charmley and ZWQ Andrew for Respondent	

Judgment:
(On the papers)	
7 September 2020 at 3.30 pm	

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Muir J)
Introduction
[1]	Ms Almarzouqi applies for leave to bring a second appeal from concurrent decisions of the District and High Courts rejecting her application for a discharge without conviction on a charge of making a false complaint to the police.  On that charge the District Court convicted and discharged her.  She was simultaneously discharged without conviction on a charge of breaching a protection order.  Her appeal against sentence on the former charge was unsuccessful.
The test
[2]	Leave to bring a second appeal must not be granted unless the Court is satisfied that:
(a)	the appeal involves a matter of general or public importance; or
(b)	a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
Submissions
[3]	Ms Almarzouqi does not specifically address these criteria in her submissions which are substantially a repeat of her arguments before the High Court.
[4]	In particular, she argues in respect of the gravity of the offending that:
(a)	it was wrong in principle for the sentencing Judge to proceed on the basis that the false complaint was the more serious charge having regard to the significantly greater maximum penalty prescribed by Parliament for the breach of the protection order offence; and
(b)	insufficient regard was had to the fact that the offending took place within the context of prolonged domestic abuse.
[5]	In respect of the consequences of conviction she argues that:
(a)	there was no adequate recognition of the discrimination that the conviction would result in for her as a Muslim woman, both in the United Arab Emirates (UAE) (if she was deported) or within the Muslim community of New Zealand (if not); and
(b)	the risk of deportation was underestimated.
[6]	In support of alleged discrimination in New Zealand she now submits a letter dated 13 July 2020 from her local Member of Parliament suggesting that within the Muslim community “the shame and social and cultural stigma that come with a conviction will be amplified”.
[7]	In response, the Police submit that Ms Almarzouqi’s complaints are factual in nature and their significance is confined to the circumstances of her case.  They say the appeal neither engages any matter of general or public importance nor is it a case where any miscarriage may have occurred.
Discussion
[8]	We are not satisfied that the criteria in s 237(2) of the Criminal Procedure Act 2011 are made out.  Accordingly, we are not satisfied that leave should be granted.
[9]	The finding that offending with a higher maximum penalty was, on the facts of a particular case, less serious than proximate offending which attracted a lower potential sentence is unexceptional.  As Grice J said:
While any comparison of seriousness between offences will take into account the maximum penalties what is necessary here is an analysis based on the actual offending before the Court. 
[10]	Both the District and High Courts concluded that the false complaint charge (involving a written statement to the police that her former husband had threatened to kill her) was, on the facts, more serious than the breach of protection order charge (involving a vitriol-laden phone call, albeit with a legitimate initial purpose).
[11]	In assessing whether an issue of general and public importance arises on an intended appeal this Court may legitimately consider the strength of any issue which may be raised on the appeal.  We regard the “higher maximum penalty” argument as so weak as not to engage the threshold test.
[12]	As to the context of the offending, this was again fully traversed in the High Court decision.  Grice J cited the District Court Judge’s finding that although there was “a substantial body of evidence that [Ms Almarzouqi] was in an abusive relationship, there [was] also a strong body of evidence that she abused her position by misleading and lying statements, to get what she wanted”.  Her Honour clearly regarded that as an accurate assessment of the position.  These were all matters of fact confined to the circumstances of Ms Almarzouqi’s case.
[13]	In terms of the direct and indirect consequences of the conviction, Grice J noted that the District Court Judge had been provided with a letter from the International Muslim Association of New Zealand indicating that if Ms Almarzouqi was deported her conviction would lead to a “life sentence” in the UAE, but that there was no evidence of similar stigmatisation in New Zealand.  Ms Almarzouqi now tries to fill that evidential lacuna with a letter from her MP.  There is no application to admit further evidence which we would, in any event, have declined on the basis that it lacked both cogency (the MP is not a cultural expert) and more particularly “freshness”.
[14]	Finally, in respect of the risks of deportation, there is no basis to suggest that these were not properly considered by both the District Court and High Court Judges.  As Grice J observed, potential deportation for criminal offending is not conviction‑dependent.  Nor does the conviction of itself make Ms Almarzouqi liable for deportation.  It may be that she is now required to obtain a character waiver in respect of any application for a residence class visa.  Both the High Court and this Court have routinely cautioned against the courts usurping the role of immigration officials.  The objection is based in notions of institutional competence and comity.  We identify no issue of general or public importance, or potential miscarriage on this account.
Result
[15]	The application for leave to bring a second appeal is declined.

Solicitors: 
Crown Law Office, Wellington for Respondent