IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2019-004-008058
[2021] NZHC 750	

BETWEEN	MEHDI MEHRABI

Appellant	
AND	NEW ZEALAND POLICE

Respondent	

Hearing:	22 March 2021	
Counsel:	S J Mitchell for appellant R Morrison for respondent	
Judgment:	8 April 2021	

JUDGMENT OF KATZ J
[Appeal against refusal to grant a discharge without conviction]

This judgment was delivered by me on 8 April 2021 at 11:30 am

Registrar/Deputy Registrar

Solicitors:	Meredith Connell, Office of the Crown Solicitor, Auckland Counsel:	S J Mitchell, Barrister, Auckland

MEHRABI v NEW ZEALAND POLICE [2021] NZHC 750 [8 April 2021]

Introduction

[1]	Mehdi Mehrabi pleaded guilty to one charge of assault1 and two charges of behaving threateningly.2 He applied to be discharged without conviction, but his application was declined by Judge P J Sinclair.3 Mr Mehrabi now appeals that decision. The issue on appeal is whether the Judge erred in finding that the consequences of Mr Mehrabi’s convictions were not out of all proportion to the gravity of his offending.

Facts

[2]	Mr Mehrabi has family members who live next door to the two victims of his offending (whom I will refer to as “AB” and “CD”). The two properties share a common driveway.

[3]	On the morning of Saturday 24 August 2019, AB was walking up his driveway. Mr Mehrabi parked his vehicle in the driveway and said sternly to AB “I need to speak to you”. Mr Mehrabi then got out of his car and approached AB saying, “You owe me fifteen hundred bucks for my son’s tail light that you hit”. AB asked, “What are you on about?” to which Mr Mehrabi replied, “Are you gonna pay me or are we gonna have trouble?” AB responded, “Are you serious?” to which Mr Mehrabi replied “Yeah, I am. Are you gonna pay me or is there going to be trouble?” While he was saying this, Mr Mehrabi stepped towards AB. AB asked, “Are you threatening me?” to which Mr Mehrabi replied, “I’m more than threatening you”. AB felt threatened and started backing away, towards the street.

[4]	Mr Mehrabi then exclaimed: “If you’re not going to pay, I’ll take my money”. He began walking towards AB’s house, and AB followed behind him. Mr Mehrabi responded by thrusting an open palm into AB’s throat. This caused AB to stumble back a few steps. He suffered some throat pain but had no lasting injuries.

[5]	The second victim (“CD”) heard the commotion in the driveway and came out

1	Crimes Act 1961, s 196. Maximum penalty of 1 years’ imprisonment.
2	Summary Offences Act 1981, s 21(1)(a). Maximum penalty of 3 months’ imprisonment or a fine of $2000.
3	Police v Mehrabi [2020] NZDC 23281.

to see what was happening. She saw Mr Mehrabi walking in her direction. AB yelled at her to “get inside”. CD felt threatened and turned to run back inside. In her haste, CD fell over, injuring her knee. She was five months’ pregnant at the time.

[6]	Mr Mehrabi then returned to his vehicle and left the scene after telling AB: “Trust me, this isn’t over”.

[7]	When spoken to by police, Mr Mehrabi denied the offending and claimed it was a “set up”. As previously noted, however, he later entered guilty pleas to the charges.

Relevant law

[8]	Section 106 of the Sentencing Act 2002 (the “Act”) provides that if a person pleads guilty to an offence, the Court may, instead of imposing a sentence, direct that the offender be discharged. The Court must not discharge an offender without conviction unless the Court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.4

[9]	In Z v R, the Court of Appeal set out a three-stage test to be applied by the courts when considering applications for a discharge without conviction:5

That is: when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).

District Court decision

[10]	Judge Sinclair refused Mr Mehrabi’s application for a discharge without conviction.6 Applying the three-stage test set out above, her Honour first considered

4	Sentencing Act 2002, s 107.
5	Z v R [2012] NZCA 599, [2013] NZAR 142 (CA) at [27] citing Blythe v R [2011] NZCA 190,
[2011] 2 NZLR 620 (CA). See also A (CA747/10) v R [2011] NZCA 328.
6	Police v Mehrabi [2020] NZDC 23281.

the gravity of the offending. The fact that Mr Mehrabi had previously received a discharge without conviction for assault was found to be an aggravating factor of the offending.7 No credit for rehabilitative efforts was given as Mr Mehrabi had not taken steps to address the underlying causes of his offending.8 Factoring in Mr Mehrabi’s guilty plea, the gravity of the offending was assessed as being between low and moderate.9

[11]	The Judge then considered the direct and indirect consequences of entering convictions. The first consequence relied upon by Mr Mehrabi was that if he were convicted, he may struggle to obtain a liquor license for a restaurant he was planning to open. The Judge expressed concern at the paucity of information before her on this issue, which made it difficult for her to verify the genuineness of Mr Mehrabi’s stated intention to open a business. This was not her critical concern, however. Rather:10
…more importantly, there is no information before the Court verifying how a conviction could impact your ability to obtain a liquor licence with convictions for assault and behaving threateningly. In Graves v Police, the Court held that the loss of an offender’s liquor licence was not an automatic consequence of conviction. Rather, the conviction would be one factor that the liquor licensing authority would take into account when reviewing the offender’s licence. The authority would also have the benefit of the Court’s judgment to aid its decision.

(Footnote omitted)

[12]	Her Honour concluded that the decision whether to grant Mr Mehrabi a liquor licence should be made by the liquor licensing authority, with all the relevant information before it. The Court should not usurp that authority. She noted that higher courts have frequently held that where there is an independent body charged with determining the suitability of an individual for a licence, that body is best placed to make the decision.11

[13]	The second consequence relied on by Mr Mehrabi was that he was hoping to marry an Iranian woman and sponsor her to enter New Zealand. He was concerned that a conviction would be detrimental to his chances of successfully doing so. The

7	At [9]-[13].
8	At [13]-[14].
9	At [15]-[16].
10	At [19].
11	At [20].

Judge found this concern to be speculative.12 Further, the appropriate body to consider and determine any spousal sponsorship application from Mr Mehrabi is Immigration New Zealand, not the Court.13 Again, the Court should not usurp the processes of that body.

[14]	The Judge then applied the third stage of the test, balancing the low to moderate gravity of offending with the consequences of the offending. She concluded that the consequences of the conviction were not out of proportion to the offending, and therefore a discharge without conviction should not be granted.14

Approach on appeal

[15]	An appeal against the refusal to grant a  discharge without conviction under   s 106 of the Act is an appeal against both conviction and sentence.15 In Jackson v R, the Court of Appeal commented that:16

… the principled basis for determining an appeal against a discharge without conviction is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction. That is because a trial includes a proceeding in which the appellant has pleaded guilty. Alternatively, it can be said that a miscarriage of justice has occurred “for any reason” if the Judge has erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act.

[16]	The threshold test in s 107 is not a matter of discretion, but a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles.17 The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the court is satisfied that the s 107 threshold has been met.18

12	At [21].
13	At [22]-[23].
14	At [24].
15	Jackson v R [2016] NZCA 627 at [7].
16	At [12].
17	R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 (CA) at [11].
18	At [11].

Did the Judge err in finding that the consequences of Mr Mehrabi’s convictions were not out of all proportion to the gravity of his offending?

[17]	Mr Mitchell, counsel for Mr Mehrabi, submitted that the Judge had overstated the gravity of Mr Mehrabi’s offending and had understated the consequences of his convictions. This had necessarily impacted on the final stage of the process – the balancing exercise.

Did the Judge overstate the gravity of Mr Mehrabi’s offending?

[18]	Mr Mitchell submitted that the Judge made two key errors when assessing the gravity of Mr Mehrabi’s offending:

(a)	she took into account that he had previously received a discharge without conviction; and

(b)	she should have adjourned sentencing and ordered Mr Mehrabi to attend a publicly funded anti-violence programme, which would have improved his prospects of being able to secure a discharge at sentencing.

[19]	Mr Mehrabi’s earlier discharge without conviction related to a common assault on his then wife. During an argument, Mr Mehrabi slapped the victim once with an open palm, connecting with her ear and causing her to lose partial hearing for about five seconds. The impact site was red and tender. In explanation, Mr Mehrabi admitted that he had slapped the victim with an open palm, but said he could not explain why, as he was drunk at the time.

[20]	The Judge did not err in taking into account Mr Mehrabi’s prior discharge without conviction in assessing the gravity of his offending. Hore v Police,19

19	Hore v Police [2015] NZHC 2313.

MacDonald v R,20 and Sena v Police21 all provide clear authority that doing so is permissible. In MacDonald v R, the Court of Appeal observed that:22

… even in cases where the previous discharge relates to a different type of offending, the fact an applicant has already had the benefit of a discharge is still a relevant factor that weighs against the grant of another discharge.

[21]	In Sena v Police, Downs J noted, in relation to the defendant’s prior conduct (which had resulted in a discharge without conviction) that the fact that “convictions were not entered in connection with this conduct does not render it immune from analysis”.23 Downs J observed that although the fact of an earlier discharge sits more logically at the final, discretionary, stage, the earlier conduct that underpinned the discharge may aggravate the severity of latter offending of the same type. “This is not to engage in double-counting; the two aspects are conceptually distinct.”24

[22]	Here, the violent aspect of the prior offending is similar to the violence inflicted in the present offending. The Judge was correct to consider the earlier conduct to be an aggravating feature.

[23]	Nor do I find the submission that the Judge should have ordered Mr Mehrabi to attend a publicly funded anti-violence programme (as this might have improved his prospects of obtaining a discharge) to be persuasive.

[24]	Mr Mitchell advised that Mr Mehrabi is unable to afford to pay for an anti-violence programme himself, as the cheapest private one he could find cost $800. If  the  Court  ordered  that  he  attend  a  publicly  funded  programme,  however,  Mr Mehrabi would be willing to do so. Mr Mitchell submitted that this Court should order Mr Mehrabi to attend such a programme and then either re-sentence him, having regard to his attendance, or remit the matter back to the District Court for re-sentencing.

20	MacDonald v R [2019] NZCA 91.
21	Sena v Police [2017] NZHC 2319.
22	MacDonald v R [2019] NZCA 91 at [28].
23	Sena v Police [2017] NZHC 2319 at [88].
24	At [106].

[25]	Judge Sinclair was not persuaded that Mr Mehrabi’s sentencing should be adjourned to enable Mr Mehrabi to undertake an anti-violence programme and/or attend a restorative justice conference, in order to enhance his application for a discharge. She observed that it was not clear why he had not engaged in these processes earlier. The charges were laid in August 2019. Mr Mehrabi pleaded guilty a year later, in August 2020. He failed to attend sentencing in October 2020 and was eventually sentenced on 11 November 2020. Her Honour concluded that:25
There is no reason why you could not have engaged in a programme, even if you had not completed the programme by sentencing, to illustrate your commitment. In any event, while this may have reduced the gravity of your offending, in my view it would not have been sufficient to outweigh the direct and indirect consequences, given the aggravating features I have just discussed.

[26]	Judge Sinclair’s analysis of this issue cannot be faulted. There is no evidence that Mr Mehrabi took any rehabilitative steps following his assault on his then wife in 2014. In relation to the current offending, Mr Mehrabi has now had 19 months to demonstrate that he is seriously committed to rehabilitation. He has not done so. It seems inherently unlikely that in such a lengthy period he would have been unable to save, borrow, or otherwise find $800 to attend an anti-violence programme had he been genuinely motivated to do so. Indeed, I note that on 9 October 2020 he borrowed
$40,000 from a finance company, which he is using to set up his business. If attending an anti-violence programme had been a priority for Mr Mehrabi, he would have found a way to do so. Little turns on his non-attendance, however, as I share the Judge’s view that such attendance would not have been sufficient to tip the balance in favour of a discharge without conviction.

[27]	In conclusion, the Judge did not overstate the gravity of Mr Mehrabi’s offending.

Did the Judge understate the direct and indirect consequences of a conviction?

[28]	I now turn to consider Mr Mitchell’s submission that the Judge understated the direct and indirect consequences of a conviction.

25	Police v Mehrabi [2020] NZDC 23281 at [14].

[29]	Mr Mehrabi filed an affidavit in support of his appeal to address the Judge’s concern at the paucity of information before her regarding Mr Mehrabi’s intention to set up a restaurant business. Based on the documents annexed to that affidavit, I accept that Mr Mehrabi is taking steps to set up such a business. Counsel advised that the business is in the nature of a burger bar.

[30]	The provision of this new information, however, does not undermine the two key strands of the Judge’s reasoning in relation to this issue. Specifically, she stated that:

(a)	There was no information before the Court verifying how the entry of convictions would impact Mr Mehrabi’s ability to obtain a liquor licence. It appeared, however, that convictions would simply be one factor that the liquor licensing authority (“Authority”) would take into account.

(b)	It was not for the Court to usurp the role of the Authority.

[31]	I agree with the Judge on both matters. When considering applications for discharge without conviction, courts have generally been reluctant to undermine the role of statutory authorities. As Wylie J observed Roberts v Police:26
Where… Parliament has seen fit to establish a statutory authority with the task of selecting or screening applicants for admission to whatever trade or profession may be involved then clearly Parliament has contemplated that those bodies should exercise a discretion as to admission in the light of the expertise that those bodies will build up over a period of time and with the knowledge of the kind of qualities that are appropriate for the particular trade or profession and those which render admission to that trade or profession inappropriate. It seems to me… that it would be inappropriate, at any rate in all but the most exceptional case, for this Court to substitute its discretion as to what may or may not be relevant on the seeking of admission to a particular profession for the discretion which Parliament has seen fit to vest in a statutory body. Indeed, it is not perhaps going too far to say that to do so the Court would be actively concealing from the statutory body information which ought properly to come before that body.

26	Roberts v Police (1989) 5 CRNZ 34 (HC) at 36-37.

[32]	In Graves v Police, Lang J commented (in relation to the prospective loss of a manager’s license granted by the Authority) that:27

Had the conviction meant that Mr Graves would automatically lose his manager's licence, it is likely that I would have determined that the consequences of the conviction would be disproportionate to the gravity of the offending. I am satisfied, however, that that is not the case. The conviction, and the circumstances that led to it being  entered,  are just one  aspect of  Mr Graves' circumstances that the Authority will need to take into account. The Authority will also have the benefit of Judge McGuire's decision and my two judgments, and it will no doubt be able to gauge the nature and culpability of Mr Graves' offending from them. For that reason I do not accept that the conviction will automatically mean that Mr Graves will lose his manager's licence.

[33]	Here, there is no evidence that Mr Mehrabi’s convictions will automatically prevent him from obtaining a liquor licence. Rather, they will be one factor for the Authority to consider. Further, his offending is clearly relevant to an assessment of Mr Mehrabi’s suitability to hold a liquor licence. It would therefore be inappropriate for this Court to (in effect) conceal Mr Mehrabi’s convictions from the Authority, thereby preventing it from making a fully informed assessment of Mr Mehrabi’s suitability as a licensee.

[34]	Similarly, it is for the relevant immigration authorities, not this Court, to assess Mr Mehrabi’s suitability to sponsor the entry into New Zealand of his potential future wife. His convictions will be relevant to that assessment, although not determinative. In Singh v R, the Court of Appeal noted that the Courts have been reluctant to consider immigration consequences in discharge without conviction applications.28 Rather, the usual approach has been to leave immigration matters to the immigration authorities.29 The Judge was clearly correct to take that approach here.

[35]	In conclusion, the Judge did not err in her analysis of the consequences of entering convictions in respect of the charges.

Proportionality test

[36]	It follows that the Judge did not err in finding that the consequences of a

27	Graves v Police HC Rotorua CRI-2010-463-57 at [25].
28	Singh v R [2020] NZCA 411 at [14].
29	At [14].

conviction were not out of all proportion to the gravity of the offending. The Judge correctly determined that the gravity of Mr Mehrabi’s offending was low to moderate. The consequences of a conviction proffered by Mr Mehrabi were by no means certain and, in any event, whether or not those consequences eventuate are matters appropriately left to the determination of the relevant statutory bodies. Their roles should not be usurped or undermined by the Court. The Judge therefore did not err in refusing to discharge Mr Mehrabi without conviction.

Result

[37]	The appeal is dismissed.

Katz J