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The Queen v Khan [2006] NZCA 47 (4 April 2006)

Last Updated: 21 April 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA312/05

THE QUEEN

v

MOHAMMED AZAM KHAN

Hearing: 23 February 2006

Court: Robertson, Randerson and Panckhurst JJ

Counsel: C J Robertson for Appellant
A R Burns for Crown

Judgment: 4 April 2006

JUDGMENT N0 2 OF THE COURT

A Appeal against sentence allowed.

B Financial penalties imposed in the District Court are quashed.

C Appellant is fined $500.00 and ordered to pay reparation $1,500.00. The total sum of $2,000.00 is to be paid at the rate of $167.00 per month for the first eleven months with a final payment of $163.00, the first payment to be made on 1 May 2006 and thereafter on the first day of each month.

REASONS

(Given by Robertson J)

[1] On 7 March 2006, this Court dismissed the appellant’s appeal against conviction and called for further submissions on the issue of sentence: see R v Khan CA312/05 7 March 2006.
[2] Submissions have now been received from both the appellant and the Crown.
[3] The circumstances of Mr Khan’s offending were comprehensively considered in [6]-[9] of our first judgment.
[4] The sentence appeal was advanced on two grounds. First, that Mr Khan was penalised for electing trial by jury, and secondly, the level of financial penalty was unsustainable given Mr Khan’s actual financial circumstances.
[5] We have already commented on the first at [36]-[38].
[6] On the second we noted that, although there was no legal obligation to obtain a declaration as to financial capacity under s 41(3) of the Sentencing Act 2002, or to order a reparation report under s 33(1) of that Act, there must be accurate information if a monetary penalty is to be imposed.
[7] We now have an affidavit from Mr Khan outlining his financial position. The Crown has also filed a submission with an affidavit from Constable Powley, the officer in charge of the case.
[8] Mr Khan’s affidavit (which is not contradicted) sets out the following details. Mr Khan is married and has four children. He is a sickness beneficiary who is unable to work because of an accident that occurred in 1996. He receives a sickness benefit of $430.00 per week. He owns a house with a 1994 Government Valuation of $140,000 which is subject to a mortgage of $90,000 and a modest motor vehicle. Mr Khan’s father services the mortgage and pays all the outgoings on the house. In return Mr Khan pays his father $250 per week. The remaining $180 per week of his income is spent on living expenses to support his family.
[9] Mr Robertson, for the appellant, submitted that the pecuniary penalty must be determined so as to reflect not only the harm done to the complainant but also the financial circumstances of the appellant.
[10] Constable Powley’s affidavit outlines his observations of the discussions between Judge Gittos and the appellant at the time of sentencing. In his affidavit he states:

7. It is my recollection that Judge Gittos told Khan and his defence counsel that a monetary penalty was going to be imposed on the defendant.
8. I recall the defence lawyer having a brief discussion with Khan, and then addressing Judge Gittos that (words to the effect) a monetary penalty would be unsuitable.
9. Judge Gittos replied (words to the effect) that a term of imprisonment may be appropriate.
10. After another brief discussion between Khan and his lawyer they agreed that a monetary fine imposed would be accepted.

Conclusion

[11] It is clear from Constable Powley’s affidavit that Mr Khan did not have any real choice in terms of the imposition of the pecuniary penalties. His apparent acquiescence cannot in the circumstances be treated as conclusive. The level of financial imposition was not mentioned until after the Judge had made it clear he was going to impose a sentence of imprisonment if he could not impose a fine. In such circumstances it is unrealistic to assume that Mr Khan would complain about the level of fine/reparation. The Judge had clearly indicated his displeasure at the election of trial by jury and his negative assessment of the appellant.
[12] Of further import is the fact that Mr Khan is confined to a wheelchair.
[13] We have concluded that the total financial impost which could realistically be imposed (having regard to Mr Khan’s financial position and his medical condition) was $2000.00.
[14] In this case the victim suffered an injury to her arm that required ongoing medical treatment. It is necessary that the interests of the victim be recognised in making appropriate reparation. Section 12(1) requires the Court to impose a sentence of reparation unless it is satisfied that the sentence would result in undue hardship for the offender, his dependants or that any other special circumstances would make it inappropriate. We are satisfied that a sentence of reparation would not result in undue hardship or that there are other special circumstances which would make it inappropriate. Judge Gittos set the level of reparation at $1,500.00 and we see no reason for interfering with this figure.
[15] Given the totality of offending, we are of the opinion that a fine should also be imposed. We note that the imposition of a fine is the only realistic sentence as community work is not appropriate given Mr Khan’s confinement to a wheelchair and, although his behaviour was reprehensible, a sentence of imprisonment is not justified. We therefore impose a fine of $500.

Result

[16] The appeal against sentence is allowed. The orders made in the District Court relating to financial penalty are quashed. Mr Khan is fined $500.00 and ordered to pay reparation of $1,500.00. The total sum of $2,000.00 is to be paid at the rate of $167.00 per month for the first eleven months with a final payment of $163.00, the first payment to be made on the first day of May 2006 and thereafter on the first day of each month.

Solicitors:
Crown Law Office, Wellington

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[1]	On 7 March 2006, this Court dismissed the appellant’s appeal against conviction and called for further submissions on the issue of sentence: see R v Khan CA312/05 7 March 2006.
[2]	Submissions have now been received from both the appellant and the Crown.
[3]	The circumstances of Mr Khan’s offending were comprehensively considered in [6]-[9] of our first judgment.
[4]	The sentence appeal was advanced on two grounds. First, that Mr Khan was penalised for electing trial by jury, and secondly, the level of financial penalty was unsustainable given Mr Khan’s actual financial circumstances.
[5]	We have already commented on the first at [36]-[38].
[6]	On the second we noted that, although there was no legal obligation to obtain a declaration as to financial capacity under s 41(3) of the Sentencing Act 2002, or to order a reparation report under s 33(1) of that Act, there must be accurate information if a monetary penalty is to be imposed.
[7]	We now have an affidavit from Mr Khan outlining his financial position. The Crown has also filed a submission with an affidavit from Constable Powley, the officer in charge of the case.
[8]	Mr Khan’s affidavit (which is not contradicted) sets out the following details. Mr Khan is married and has four children. He is a sickness beneficiary who is unable to work because of an accident that occurred in 1996. He receives a sickness benefit of $430.00 per week. He owns a house with a 1994 Government Valuation of $140,000 which is subject to a mortgage of $90,000 and a modest motor vehicle. Mr Khan’s father services the mortgage and pays all the outgoings on the house. In return Mr Khan pays his father $250 per week. The remaining $180 per week of his income is spent on living expenses to support his family.
[9]	Mr Robertson, for the appellant, submitted that the pecuniary penalty must be determined so as to reflect not only the harm done to the complainant but also the financial circumstances of the appellant.
[10]	Constable Powley’s affidavit outlines his observations of the discussions between Judge Gittos and the appellant at the time of sentencing. In his affidavit he states:

[11]	It is clear from Constable Powley’s affidavit that Mr Khan did not have any real choice in terms of the imposition of the pecuniary penalties. His apparent acquiescence cannot in the circumstances be treated as conclusive. The level of financial imposition was not mentioned until after the Judge had made it clear he was going to impose a sentence of imprisonment if he could not impose a fine. In such circumstances it is unrealistic to assume that Mr Khan would complain about the level of fine/reparation. The Judge had clearly indicated his displeasure at the election of trial by jury and his negative assessment of the appellant.
[12]	Of further import is the fact that Mr Khan is confined to a wheelchair.
[13]	We have concluded that the total financial impost which could realistically be imposed (having regard to Mr Khan’s financial position and his medical condition) was $2000.00.
[14]	In this case the victim suffered an injury to her arm that required ongoing medical treatment. It is necessary that the interests of the victim be recognised in making appropriate reparation. Section 12(1) requires the Court to impose a sentence of reparation unless it is satisfied that the sentence would result in undue hardship for the offender, his dependants or that any other special circumstances would make it inappropriate. We are satisfied that a sentence of reparation would not result in undue hardship or that there are other special circumstances which would make it inappropriate. Judge Gittos set the level of reparation at $1,500.00 and we see no reason for interfering with this figure.
[15]	Given the totality of offending, we are of the opinion that a fine should also be imposed. We note that the imposition of a fine is the only realistic sentence as community work is not appropriate given Mr Khan’s confinement to a wheelchair and, although his behaviour was reprehensible, a sentence of imprisonment is not justified. We therefore impose a fine of $500.