IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2020-404-54
[2020] NZHC 1231	

BETWEEN	AHMED AYAD NAZAR AL QAYSI
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	19 May 2020	
Appearances:	J Yi for the Appellant
E Rangamuwa for the Respondent	
Supplementary submissions completed:	25 May 2020	
Judgment:	8 June 2020	

JUDGMENT OF POWELL J

This judgment was delivered by me on 8 June 2020 at 3.30 pm Registrar/Deputy Registrar
Date:

AL QAYSI v NEW ZEALAND POLICE [2020] NZHC 1231 [8 June 2020]

[1]	The appellant, Ahmed Al Qaysi, appeals against his conviction and sentence on one charge of assault on a person in a family relationship. Mr Al Qaysi had sought a discharge without conviction pursuant to s 106 of the Sentencing Act 2002 but this was  rejected  by  Judge  Fitzgerald  who  concluded   that  the  consequences  of   Mr Al Qaysi’s offending were not out of proportion to the gravity of the offending.1 Instead Mr Al Qaysi was convicted and sentenced to 80 hours community work.2

[2]	Section 106 provides that a court may discharge an offender without conviction. Section 107 then provides that a discharge without conviction must not be granted unless the court is satisfied that the direct and indirect consequences of a conviction would be out of proportion to the gravity of the offence. Three main factors are to be considered in this determination:3

(a)	The gravity of the offence; and

(b)	The direct and indirect consequences of a conviction; and

(c)	Whether those consequences are out of all proportion to the gravity of the offence.

[3]	If a judge is satisfied that the jurisdictional threshold in s 107 is met the judge can then move to considering whether to exercise the residual discretion to discharge without conviction pursuant to s 106.

[4]	An appeal against a refusal to grant a discharge without conviction is an appeal against both conviction and sentence.4 The test under s 107 requires an evaluative judgment and is not a matter of discretion so the appeal court must reach its own decision on the merits.5 Consequently the court must first consider whether the s 107 disproportionality test has been met before exercising its residual discretion under     s 106(1).

1	Police v Al Qaysi [2020] NZDC 2625 at [12].
2	At [14].
3	Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [8].
4	Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [16].
5	Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [12]-[13].

[5]	In support of the appeal Mr Al Qaysi relies  upon  evidence  not  before  Judge Fitzgerald; an affidavit from the victim supporting the appeal, a letter from the New Zealand Transport Agency (“NZTA”) proposing to remove Mr Al Qaysi’s passenger endorsement, and information regarding his contract as a driver with Uber. There is no opposition to receipt of this material and it has been admitted.

The offending

[6]	Mr Al  Qaysi  is  the  younger  brother  of  the  victim.  On  the  evening  of 15 April 2019 Mr Al Qaysi was at home, where he lives with his mother and sister. On Mr Al Qaysi’s account he had got very drunk after getting home from work and took issue with his sister after finding her cat’s feeding plates in the kitchen, as he was severely allergic to cats. A verbal argument ensued between Mr Al Qaysi and his sister which ultimately resulted in Mr Al Qaysi grabbing his sister’s hair and punching her in the back of the head and neck five times with a closed fist, with at least one of the blows hitting his sister’s hand as she sought to protect herself.

[7]	The victim suffered a swollen right hand and swelling at the back of her head.

The case for Mr Al Qaysi

[8]	Mr  Yi,  for  Mr  Al  Qaysi,  relying  upon  Mathieson   v   R6   submitted Judge Fitzgerald erred in his assessment of the gravity of the offending, in concluding the offending fell into “the low end of the middle range” for the purposes of the s 106 application.7 Mr Yi lists several mitigating factors that he submits mean the  gravity of the offending should have been assessed as low including:

(a)	the rehabilitative efforts made by Mr Al Qaysi including a 20-week anger management course;

(b)	attendance at eight weeks of alcohol counselling;

(c)	the fact the assault was brief and between siblings;

6	Mathieson v R [2019] NZCA 406.
7	Police v Al Qaysi [2020] NZDC 2625 at [5].

(d)	the fact the victim kicked the defendant first;

(e)	Mr Al Qaysi’s apology and reconciliation efforts;

(f)	the lack of ongoing injuries; and

(g)	the unlikelihood of Mr Al Qaysi returning to court.

[9]	Mr Yi also submitted that Judge Fitzgerald overstated the Court of Appeal’s position in R v Taulapapa8 when he reasoned that “courts should be reluctant to usurp the role of employers or others who, for good reasons, are entitled, perhaps even required to know about all matters they consider relevant when deciding a person’s fitness and suitability for work or some other purpose”.9 Mr Yi submitted the Judge did not appreciate that the passage he referred to was one of many differing points about the consequences of conviction, in the context of young people.

[10]	Finally, Mr Yi submitted that the letter  from  NZTA proposing  to  remove Mr Al Qaysi’s passenger endorsement is evidence that the consequence of a conviction is severe. If the passenger endorsement is removed the appellant will not be able to drive as an Uber driver for the immediate future and will not be able to reapply for the endorsement for a period of 18 months. Mr Yi submits this will cause considerable financial stress on Mr Al Qaysi and his household. He also submits that his second job as a storeman is also likely to be negatively impacted should his employer be notified of this conviction.

Discussion

[11]	I begin my analysis by considering whether there was any error in the assessment of the gravity of the offending. On this first issue there is some force in Mr Yi’s submission and I accept the situation appears to be analogous to the position in Mathieson v R.

8	R v Taulapapa [2018] NZCA 414.
9	Police v Al Qaysi [2020] NZDC 2625 at [11].

[12]	In that case the Court of Appeal considered that the lower courts had not applied the correct approach in their assessment of gravity because the overall assessment failed to take into account positive mitigating factors, which were however subsequently taken into account when the defendant in that case was sentenced.10

[13]	A similar approach appears to have been followed in this case. In particular, while the sentencing Judge clearly took into account the mitigating factors, His Honour’s conclusion that the overall gravity of the offending “comes down to the lower end of the middle range” is in fact somewhat irreconcilable with the ultimate sentence imposed on Mr Al Qaysi. On the contrary 80 hours of community work is a clear indication that after taking into account the same mitigating features raised in respect of the s 106 application Judge Fitzgerald regarded the offending as being at the lower end, an assessment not challenged by the Police on appeal and which was clearly open to His Honour on the material available in the District Court.

[14]	Given that position I now turn to consider whether there was any error with His Honour’s assessment of the direct and indirect consequences of a conviction on Mr Al Qaysi.

[15]	As noted, the consequences of conviction Mr Al Qaysi claims are disproportionate relative to the effect on his employment. For such consequences to be considered, a court must be satisfied that there is a real and appreciable risk they will eventuate.11  The approach to be taken was spelt out by the Court of Appeal in   R v Taulapapa in the following terms:12

When determining the effects of conviction on employment the Court must identify the consequence, assess the evidence offered for it, evaluate the risk that the consequence will happen to the particular applicant, and form an overall assessment of seriousness. These are matters of judicial judgement.

[16]	The material before the Court shows that Mr Al Qaysi in fact works three jobs; as a barber, as a storeman and as an Uber driver. No information has been provided

10	Mathieson v R [2019] NZCA 406 at [17].
11	R v Taulapapa [2018] NZCA 414 at [22]; Mathieson v R [2019] NZCA 406 at [18].
12	R v Taulapapa [2018] NZCA 414 at [46].

as to the financial consequences of the loss of any of the jobs to either Mr Al Qaysi or his family.

[17]	As Mr Yi accepted there is no suggestion a conviction will in any way affect Mr Al Qaysi’s work as a barber.

[18]	With regard to Mr Al Qaysi’s position as a storeman it appears that his employer is not currently aware of the conviction. His employment contract gives his employer the ability to dismiss him for serious misconduct, including specifically “violent behaviour” and/or where there has been a:

conviction for a criminal offence, that in the Company’s opinion may affect its reputation or relationships with its staff, customers or the public, or otherwise affects your suitability to continue to work for the Company.

[19]	As Ms Rangamuwa submitted for the Police, these provisions do not suggest that a criminal conviction will automatically result in a loss of employment. On the contrary, Mr Al Qaysi’s employment agreement makes it clear that when an employee is accused of serious misconduct, the employee is to be given a reasonable opportunity to provide an explanation and the company will consider the seriousness of the allegations amongst other factors before considering the appropriate action to take.

[20]	Similar considerations apply to the possible loss of Mr Al Qaysi’s passenger endorsement. While I have reservations as to whether the documents provided by  Mr Al Qaysi accurately represent his contract with Uber,13 it is clear that Mr Al Qaysi would not be able to carry passengers legally without the necessary passenger endorsement. The letter from NZTA (which was not before Judge Fitzgerald) indicates a provisional decision to remove Mr Al Qaysi’s passenger endorsement with particular reference to the present conviction. The letter makes it clear however that his passenger endorsement had been issued on what is described as a “without prejudice” basis as a result of previous traffic infringements and the provisional decision to terminate refers not only to the present conviction, but a further traffic infringement

13 As Ms Rangamuwa noted, the agreement is unsigned and otherwise non-specific to Mr Al Qaysi, and refers to the requirements and expectations for Uber drivers in Australia. There is nothing contained within the agreement provided by Mr Al Qaysi to suggest that it extends to New Zealand drivers or more specifically, Mr Al Qaysi.

incurred when Mr Al Qaysi used his cell phone while driving. The letter makes it clear that:

Violence-related behaviour is directly relevant to fitness and property [sic] of passenger endorsement holders, and to public safety pursuant to ss 30C and 30 D of the Land Transport Act 1998… Your conviction above shows capacity to be violent in a serious manner when in heated situations. This is especially concerning if you were to be driving passengers.

Those who hold endorsements to drive vehicles used for passenger service are expected by the transport agency to observe the highest standards of public safety. Holding a passenger endorsement is a privilege and by virtue of your position you are placed in a position of trust. Your offending is not consistent with this requirement.

Based on the matters I have set out above, I am satisfied that you are not a fit and proper person to hold a passenger endorsement.

[21]	Despite this, the letter goes on to note “this is not a final determination and [Mr Al Qaysi is] given the right to make submissions” pending a final determination, following which he has the right of appeal to the District Court pursuant to s 106 of the Land Transport Act 1998. At the hearing Mr Yi confirmed that the submissions process is currently on hold pending the outcome of this appeal.

[22]	It is therefore clear that in respect of Mr Al Qaysi’s jobs as a storeman and as an Uber driver that there is no inevitability that Mr Al Qaysi will lose either job and it is clear that the matters raised in mitigation before Judge Fitzgerald will be relevant, as will the affidavit sworn by the victim in support of Mr Al Qaysi’s appeal.

[23]	The issues are strikingly similar to those considered in Elmeleh v Police.14 In that case this Court on appeal allowed a discharge without conviction on what was apparently a less serious charge of common assault, albeit with significantly less mitigating factors than the present, including the fact that the appellant in that case was found guilty at a judge alone trial. As in the present case Mr Elmeleh, a taxi driver, had received notification from the NZTA that he was no longer a fit and proper person to hold a passenger endorsement taking into account his conviction and a range

14	Elmeleh v Police [2019] NZHC 3371.

of traffic infringements, and notwithstanding the submission and appeal process the consequences of a conviction were disproportionate.

[24]	With respect the approach followed in Elmeleh does not reflect well settled principle that the courts will not interfere with matters that employers and/or professional bodies are required to consider. As Wylie J noted in Solicitor-General v Mohib:15
The approach the Courts have taken to the issue of immigration consequences is consistent with the approach taken to employment consequences where there is an independent body charged with determining the suitability of individuals for particular employment. In this context,16 Hammond J noted as follows:

Whether a conviction will form an occupational barrier is a relevant consideration in determining whether to grant a discharge without conviction. Where the conviction will result in an absolute bar to the occupation that may carry extra weight with the Court. I do not think there is any such suggestion in this case. If there is an independent body charged with determining the suitability of individuals for particular employment, the Court may be more ready to enter a conviction, it being of the view that it is in the public interest that that body is best able to make a decision with the benefit of full disclosure of the fact. The fact that the conviction may act as a barrier to graining entrance to an occupation is not a determinative factor – it is merely a factor to be considered in the balancing exercise.

Similarly, in R v Rollo,17 the Court of Appeal accepted a submission “that the Court should take care not to usurp the function of registration bodies, such as the Council, by routinely providing discharges in cases of this kind”.18

(footnotes in original)

[25]	This was in fact the approach taken by Judge Fitzgerald in this case in which he referred to the following passage in R v Taulapapa:19

15	Solicitor-General v Mohib [2016] NZHC 1908 at [51].
16	Liang v Police HC Wellington AP38/02, 16 April 2003 at [17].
17	R v Rollo CA 1/04, 9 October 2004; Maraj v Police [2016] NZCA 279 at [28].
18	At [6]-[7].
19 R v Taulapapa [2018] NZCA 414 at [42](a). The quotation in the Sentencing Notes in fact appears to be an amalgam of the quote from Taulapapa and the following from Mitchell v Police [2020] NZHC 440 which reads “the Court must also consider the employer's right to know and should be hesitant to usurp the role of a particular employer or registration authority to decide the significance of a particular conviction. The employer's right to know carries particular weight where there is an independent statutory or other registration agency charged with assessing a person's character or suitability for a particular career.” (citations omitted).

[A conviction] may affect the person’s career, but that consequence must normally yield to the employer’s right to know. This principle extends to independent bodies charged with assessing the character or suitability for a particular career. It applies to all offenders for whom convictions are recorded, including the young.

(footnotes omitted)

[26]	This type of approach is relevant to both occupations at issue in this case.   Mr Al Qaysi’s employer in his storeman role is concerned about the presence of a criminal conviction where that affects the employer’s reputation or relationships with its staff, customers or the public, or otherwise affects Mr Al Qaysi’s suitability to continue to work and granting a discharge without conviction would clearly prevent the company from undertaking this assessment.

[27]	It is also particularly important with regard to the decision to be made by NZTA. This is because it is clear that the NZTA decision involves specific consideration of public safety issues, as identified by NZTA in the letter. Importantly, to the extent the documentation from Uber provided by Mr Al Qaysi reflects his own contractual arrangements, it would seem that Uber relies upon NZTA doing its job effectively to ensure that Uber drivers are fit and proper people to safely carry passengers. In addition, as a discharge without conviction has the effect of an acquittal,20 granting a discharge in this case would lead to the artificial position that the NZTA is aware of the domestic violence at issue in this appeal and to which     Mr Al Qaysi has pleaded guilty, but is effectively required not to take it into account notwithstanding the criteria for determining what a fit and proper person may be has formed absolutely no part of the analysis required in this appeal. Such an approach clearly fails to allow the NZTA to properly perform its function. Given that position I concur with Judge Fitzgerald’s conclusion that a court should be reluctant to “usurp the role of a particular employer … to decide the significance of a particular conviction”,21 particularly where, as here, Mr Al Qaysi was already on notice with issues regarding his passenger endorsement and the present conviction is not the only matter being considered by the NZTA.

20	Sentencing Act 2002, s 106(2).
21	Police v Al Qaysi [2020] NZDC 2625 at [11]. See Mitchell v Police [2020] NZHC 440 at [18].

[28]	In the circumstances and allowing for the fact that the gravity of the offending was as noted objectively less than allowed for by the sentencing Judge, I nonetheless agree with Judge Fitzgerald’s ultimate conclusion that the consequences of a conviction for Mr Al Qaysi are not disproportionate to the gravity of the offending. As a result, the appeal must be dismissed.

Decision

[29]	The appeal is dismissed.

Powell J