The Queen v Victor Chechelnitski

Court of Appeal, Wellington CA160/04
2 August 2004; 1 September 2004
McGrath, Glazebrook and O'Regan JJ

Smuggling migrants - sentence - factors to be taken into account - whether appropriate to impose severe deterrent sentences - Crimes Act 1961, s 98C(1) - Transnational Organised Crime Bill 2002; UN Convention against Transnational Organised Crime - Protocol against the Smuggling of Migrants by Land, Sea and Air

Sentencing - smuggling migrants - sentence - factors to be taken into account - whether appropriate to impose severe deterrent sentences

Trafficking in persons - smuggling migrants - sentence - factors to be taken into account - whether appropriate to impose severe deterrent sentences

Treaties - interpretation of domestic legislation to be consistent with international obligations - UN Convention against Transnational Organised Crime - Protocol against the Smuggling of Migrants by Land, Sea and Air

The appellant pleaded guilty to three charges brought under s 98C(1) of the Crimes Act 1961 dealing with the smuggling of migrants. He was sentenced on 6 April 2004 to three years six months imprisonment on each charge, to be served concurrently. The offence carries a penalty of a maximum term of imprisonment of 20 years or a fine not exceeding NZ$500,000 or both. In the High Court the sentencing judge had taken a starting point of somewhere between five and seven years imprisonment.

The Ukrainians received sentences of four and a half months imprisonment for two of them and five months three weeks imprisonment for the other. They were charged with different offences from the appellant.

1 The starting point taken by the judge was entirely appropriate. Migrant smuggling must be seen as serious offending. It concerns conduct that the international community has declared requires effective action to prevent and combat, and for which New Zealand is obliged to provide sanctions that take into account its gravity. It involves, at its core, the deliberate or reckless circumvention of States' immigration laws for commercial gain. It is that commercial element of the offending that renders it appropriate to impose severe deterrent sentences on those convicted of it (see para [51]).

2 The judge was correct to treat the primary sentencing consideration as being the need for deterrence and was also correct in assessing the starting point for an organiser of an enterprise, such as was involved in this case, would be at least seven or eight years. The starting point could even be seen as generous (see paras [53] & [54]).

R v Feng Lin (2001) 119 A Crim R 194 (CA NSW) and R v Mallia (CA308/91, 29 November 1991) referred to.

3 The discount of eighteen months was entirely appropriate for the mitigating factors of the guilty plea (in the face of a strong Crown case), the previous good character, the remorse (such as it was) and the assistance provided to the authorities (see para [57]).

4 The Ukrainians were sentenced for a different offence and one with a seven year maximum term of imprisonment as against a 20 year maximum. They were also, perhaps taking a rather generous view of the facts, sentenced on the basis that they were duped into the offending by the appellant. There was no basis for a disparity argument (see para [58]).

GLAZEBROOK J

Introduction

[1] Mr Chechelnitski pleaded guilty to three charges brought under s98C(1) of the Crimes Act 1961 dealing with the smuggling of migrants. He was sentenced on 6 April 2004 by Paterson J to three years six months imprisonment on each charge, to be served concurrently. The offence carries a penalty of a maximum term of imprisonment of 20 years or a fine not exceeding $500,000 or both.

[2] Mr Chechelnitski appeals against his sentence. He also applied for an order requiring the attendance and examination of witnesses at the hearing of the appeal. The evidence that he wished to call was contained in an affidavit sworn by him, explaining the circumstances of the offending. His application was refused and we give the reasons for that ruling later in this judgment. A letter from three of his friends in support of his appeal was, however, admitted by consent.

The legislation

[3] Sections 98B to 98F were introduced into the Crimes Act by the Crimes Amendment Act 2002. This amendment incorporated two new offences into the principal Act, one of smuggling migrants (s98C) and one of trafficking in people by means of coercion or deception (s98D). The offence of smuggling migrants is concerned with persons who, for material benefit, arrange for illegal migrants to enter or be brought to New Zealand, knowing, or being reckless as to whether, the migrant is unauthorised. Trafficking, conversely, is concerned with the situation where the migrant’s entry into New Zealand has been procured by acts of coercion or deception. Both offences are punishable by imprisonment for a term not exceeding 20 years, a fine not exceeding $500,000, or both. Section 98E provides that, when sentencing a person for an offence against either ss98C or 98D, the court must take into account certain factors, including the number of migrants involved, whether the migrants were subjected to inhuman or degrading treatment, whether bodily harm or death occurred and whether the offence was part of the activities of an organised criminal group as defined in s98A. The sections referred to are set out in full in an appendix to this judgment.

[4] The Crimes Amendment Act 2002 was designed to fulfil New Zealand’s obligations under the United Nations Convention Against Transnational Organised Crime and two of its three protocols, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Trafficking Protocol), and the Protocol against the Smuggling of Migrants by Land, Sea and Air (the Migrant Protocol). Specifically, s98C implements article 6(1) of the Migrant Protocol which requires State parties to establish the smuggling of migrants as a criminal offence. Smuggling of migrants is defined in article 3(a) of the Migrant Protocol as procuring the illegal entry of migrants into a State in order to obtain a financial or other material benefit. Section 98D implements article 5 of the Trafficking Protocol, which requires similar steps to be taken by State parties to criminalise trafficking in people.

[5] Article 6(3) of the Migrant Protocol also requires State parties to establish certain circumstances relating to the treatment of the migrants as aggravating factors to the offences created in accordance with article 6. This requirement is fulfilled in the Crimes Act by s98E, although the list of aggravating factors in the Crimes Act is broader. There is no corresponding requirement to provide for aggravating factors in the Trafficking Protocol.

[6] The Transnational Organised Crime Convention and the Trafficking and Migrant Protocols are the result of work done by an intergovernmental ad hoc committee established by the General Assembly of the United Nations in December 1998 (A/RES/53/111). The origins of the Ad Hoc Committee may be traced to the Naples Political Declaration and Global Action Plan against Organized Transnational Crime, adopted by the General Assembly on 23 December 1994 (A/RES/49/159). The Declaration represented a recognition by the international community that the growing threat of organised crime, with its highly destabilising and corrupting influence on fundamental social, economic and political institutions, represented a challenge demanding increased and more effective international co-operation. (For a general history of the Ad Hoc Committee see the Report of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crimes on the work of its first to eleventh sessions (2000) A/55/383.)

[7] Although the primary purpose of the Ad Hoc Committee was the elaboration of a convention dealing with transnational organised crime, incorporated into its mandate was the elaboration of further instruments to address the illicit trafficking in women and children, the illicit manufacturing and trafficking in firearms and illegal trafficking in and transporting of migrants. This reflected the conclusion of the Commission on Crime Prevention and Criminal Justice, which proposed the formation of the Ad Hoc Committee, that illegal trafficking in and/or transporting of migrants are normally carried out by organisations as part of their transnational criminal operations (Report on the Seventh Session (21-30 April 1998) (1998) E/CN.15/1998/11). This link between transnational organised criminal and migrant smuggling was emphasised in the preamble to the Migrant Protocol, the State parties recording that they are

Concerned at the significant increase in the activities of organized criminal groups in smuggling of migrants and other related criminal activities set forth in this Protocol, which bring great harm to the States concerned.

[8] Despite this background, the purpose of the Migrant Protocol is broadly stated in article 2 of the Protocol: to prevent and combat the smuggling of migrants. This is to be related back to the definition of “smuggling of migrants” in article 3(a) which, as noted above, indicates that the core of the offence is the commercial element of the activity. The offence created under article 6 is also not limited to migrant smuggling by organised criminal groups (although under article 4, the Protocol only applies to the prevention, investigation and prosecution of the article 6 offences where they are transnational in nature and involve an organised criminal group).

[9] The offences established in accordance with article 6 of the Migrants Protocol are, by virtue of article 1(3) of the Protocol, to be regarded as if they were offences established in accordance with the Transnational Organised Crime Convention. Although not entirely clear on the wording, it is likely, therefore, that States are accordingly obliged to ensure that persons held liable for the offences are subject to effective, proportionate and dissuasive criminal sanctions (article 10(4) of the Convention), that take into account the grave nature of the offence (article 11(1)).

[10] The origins of the Crimes Amendment Act, then the Transnational Organised Crime Bill, were adverted to by the Hon George Hawkins, the Minister of Police on its introduction to the House ((28 February 2002) 598 NZPD 14755). After noting the need for a concerted and co-ordinated international effort to counter the globalisation of crime, the Minister said (at 14755)

One significant aspect of this international effort is to target those people who profit from the smuggling and trafficking of people. People smuggling and trafficking have become lucrative international activities for organised crime. Fifty percent of all illegal immigrants globally are assisted by such smugglers. Estimated profits from the trade amount to US$10 billion annually. New Zealand, even with its relative geographic isolation, is not immune from this trade.

[11] In the debates on the readings of the Bill in the House, emphasis was placed on the severe nature of the penalties proposed for the new offences. The speeches of
the Minister of Justice on the second and third readings indicate that the maximum penalty was purposefully set high to act as a deterrent to those who make the rational
decision to become involved with migrant smuggling or trafficking ((30 May 2002) 601 NZPD 16726; (11 June 2002) 601 NZPD 16860). The Minister of Police on
introducing the Bill said that the severe penalty would send a clear message to those who might be involved in organising or transporting illegal migrants to New Zealand
that this country was not a “soft target” ((28 February 2002) 598 NZPD 14756).

[12] The Select Committee considering the Bill noted that, while the maximum penalites elevated the offending to a high level, other offences similarly motivated by profit have high maximum penalties, and referred in particular to the maximum penalty for drug trafficking (Foreign Affairs, Defence and Trade Committee Report on Transnational Organised Crime Bill, p9). The Committee also emphasised that both Australia and Canada have high penalties for people smuggling, and that it was important that parity with other countries be maintained.

Background facts

[13] At sentencing Mr Chechelnitski’s then counsel accepted the summary of facts and therefore Mr Chechelnitski was sentenced on that basis.

[14] According to the summary of facts, in 2003 three Ukraine nationals made arrangements with an associate of Mr Chechelnitski to migrate to New Zealand. They each paid US$7,800 to that associate and were provided with false Israeli passports. The three Ukrainians were advised that they could not obtain a visa to enter New Zealand using their own genuine Ukrainian passports but that Israeli passport holders do not require entry visas. They were also promised a guide to take them to New Zealand and to provide assistance to obtain accommodation and work in New Zealand. Mr Chechelnitski was to fulfil that role. Mr Chechelnitski is a citizen of Israel and holds an Israeli passport.

[15] Mr Chelchelnitski’s associate introduced him to the Ukrainians in January 2004 in Kiev, Ukraine. They were told that he would meet them in a hotel in Thailand in a few days and would act as their guide. The travel to and within Thailand was organised for the Ukrainians by the associate who provided them with instructions on what to do in Thailand on their arrival and US$700 cash to be given to Mr Chechelnitski to purchase tickets from Bangkok to New Zealand. The Ukrainians were contacted by Mr Chechelnitski upon their arrival in Thailand and he then travelled with them to Pattaya where they were to go as part of a tour purchased by the associate. Mr Chechelnitski requested that the three Ukrainians give their passports to him, the US$700 and an extra US$150 each. Mr Chechelnitski then used the cash to purchase airline tickets for himself and the three Ukrainians to Auckland via Australia.

[16] While in Thailand, Mr Chechelnitski “schooled up” the Ukrainians on Jewish phrases and customs, provided them with Jewish magazines and advised them on what to say if they were questioned by the New Zealand authorities.

[17] When, on 3 February 2004, Mr Chechelnitski and the three Ukrainians attempted to board the flight to New Zealand via Australia from Bangkok they were told that they did not have the required visa to transit through Australia. They were accordingly not allowed to board. Mr Chechelnitski then obtained a further US$127 from two of the Ukrainians, returned to Pattaya and changed the airline tickets to travel via Hong Kong.

[18] Mr Chechelnitski and the three Ukrainians then travelled to Auckland via Hong Kong. On arrival in Auckland it was ascertained that the three Israeli passports were false and made from a series of 377 blank passports that had been stolen in Israel in 2003.

Sentencing remarks

[19] When outlining the sentencing considerations to be taken into account, the Judge began by stating that this appeared to be the first time that an offender has been sentenced under the provisions of s98C of the Crimes Act. He then went on to discuss the history of the legislation, which showed the seriousness with these offences are to be regarded.

[20] The Judge said that the primary sentencing consideration in a case of this kind must be deterrence, particularly general deterrence to those outside New Zealand who seek to circumvent New Zealand’s immigration laws. This would normally require a prison sentence to be imposed.

[21] The Judge had been referred to a number of overseas authorities but considered them to be of limited assistance on the basis that the maximum penalties were different and the sentencing considerations and parole regimes were likely different too. The most useful overseas authority in his view was R v Feng Lin (2001) 119 A Crim R 194 (CA NSW). In that case, the offender received US$3,000 for three migrants to be smuggled into Australia on the container boat on which he was an officer. The sentencing Judge had taken a starting point of seven years imprisonment and reduced that by three years imprisonment for mitigating factors, including an early guilty plea. We note that, on appeal, the sentence was reduced (by majority decision) to one of three years on the basis of inadequate weight having been given to the “exceptional subjective circumstances” of the appellant.

[22] The Judge noted the Crown submission that a starting point for offending of this kind should be between six and eight years imprisonment before consideration of mitigating features: in this case the only mitigating factor being the guilty plea. He also recorded the submission of Mr Chechelnitski’s then counsel that Mr Chechelnitski had not been the prime mover in the smuggling and that the migrants had never been in any danger. Counsel also stressed the very harsh effect a substantial sentence would have on Mr Chechelnitski and his remorse. The latter was acknowledged by the Crown as having been present, albeit at a late stage.

[23] Paterson J noted Mr Chechelnitski’s offer to pay a fine of $10,000 in lieu of a sentence of imprisonment. He said that, if the information before the Court were correct as to Mr Chechelnitski’s poor financial circumstances, then neither he nor his family would be in a position to make such a payment. He considered therefore that the payment could only come from a supporter or perhaps from other members of the smuggling organisation. It would be completely inappropriate and exceptional for a people smuggler to be able to pay a fine as the only penalty. That fine could then be seen by potential offenders as no more than a business expense to be taken into account when people smuggling and one to be passed onto the potential migrants.

[24] With regard to the aggravating factors set out in s98E of the Crimes Act, the Judge noted that there was no evidence before the Court that more than one other person was involved in the smuggling operation. Mr Chechelnitski was therefore not sentenced as a member of an organised criminal group. There was no bodily harm inflicted on the migrants and they were not treated in an inhuman or degrading manner. The Judge noted that the offending did not, given the means of transportation, raise the same humanitarian concerns that had been raised in overseas’ jurisdictions of crowded boats, fuel containers, motor vehicles and on trains. Only the last of the s98E aggravating factors was applicable in that the current offending involved two or more people. This was, however, at a fairly low level given that there were only three migrants involved.

[25] The Judge remarked that he had some difficulty in characterising the Ukrainians as victims rather than as co-offenders and willing participants. He said, however, that the conduct which the Migrant Protocol addresses is profiteering in such a situation. He considered that an appropriate sentence for the organiser of a venture of the kind at issue here would be at least seven or eight years, increased upwards depending upon the number of migrants.

[26] Mr Chechelnitski was, however, not sentenced as the organiser but on the basis that his role was more akin to that of a courier in drug offending. The Judge acknowledged that he did not know what Mr Chechelnitski’s share of the payment was or whether he had even received it. He had, however, obviously participated for monetary gain and should be sentenced on that basis. The fact that the passports had been stolen in Israel and that Mr Chechelnitski made monthly visits to the Ukraine were said to be suspicious but were not taken into account in the sentencing.

[27] The Judge considered, however, that Mr Chechelnitski’s role was not minimal. He had travelled to Kiev to meet the Ukrainians, played a prominent part in the guiding of the three, had spent time schooling them in the Jewish language and in what to say to the immigration authorities in New Zealand and had undertaken the re-routing once it was realised that the proposed route would lead to visa problems in Australia. The Judge thought that a starting point of somewhere between five and seven years imprisonment would be appropriate for this level of involvement. He chose five years in this case.

[28] The Judge then considered the mitigating factors being the guilty plea, the fact that Mr Chechelnitski appeared to have an unblemished record and that he had been quite frank with the police in naming the organiser. The Judge did not, however, take into account the fact that Mr Chechelnitski would need to serve his sentence in a foreign prison away from his family as he saw himself precluded from doing so on the basis of this Court’s comments in drug courier cases. He gave an 18 month discount for mitigating factors.

The application to adduce further evidence

[29] The affidavit that Mr Chechelnitski sought to file gave a lengthy explanation of the offending and Mr Chechelnitski’s part in that offending. Mr Hart indicated that Mr Chechelnitski did not wish to withdraw his guilty plea but that he wanted the true facts of the offending to be put before the Court. It was recorded in the pre-sentence report that Mr Chechelnitski did not agree with aspects of the summary of facts and Mr Hart’s instructions are that Mr Chechelnitski did not instruct his then counsel that the summary was agreed to. In these circumstances, Mr Hart submitted that we should grant the application to adduce fresh evidence. This would enable us to consider the appeal with Mr Chechelnitski’s full version of the facts before us.

[30] In reply, the Crown submitted that there are two difficulties facing Mr Chechelnitski in his application to adduce further evidence. The first is that his counsel at sentencing had accepted the statement of facts and there is no allegation in Mr Chechelnitski’s affidavit that counsel acted against his explicit instructions in so doing. It was made clear at the sentencing that the summary of facts was accepted as the basis of sentencing and Mr Chechelnitski does not depose that he was unaware of this. The Crown would be disadvantaged if Mr Chechelnitski was allowed at this late stage to change his mind as there would be difficulties now in conducting further investigations. For example, the Ukrainians have now completed their own sentences and left the country.

[31] The second difficulty facing Mr Chechelnitski, in the Crown’s submission, is that much of the affidavit is effectively denying elements of the offence to which Mr Chechelnitski has pleaded guilty and he cannot do this. In particular, in his affidavit, Mr Chechelnitski sought to present himself as an unknowing dupe when knowledge that the migrants were unauthorised was an element of the charge to which he pleaded guilty.

[32] We accept the Crown’s submission that there are two problems with this application. The first is that it is not possible for Mr Chechelnitski to deny elements of the charge to which he pleaded guilty and his affidavit attempted to do this. The second is that, where the affidavit did not attempt to deny elements of the charge, it introduced matters that were at odds with the account in the summary of facts. Mr Chechelnitski’s counsel agreed at sentencing that he should be sentenced on the basis of the summary of facts, even though the pre-sentence report recorded that Mr Chechelnitski did not agree with all of it.

[33] We also accept the Crown’s submission that there is nothing in Mr Chechelnitski’s affidavit to indicate that the acceptance of the summary of facts by his then counsel at the time of sentencing was against his explicit instructions or without his knowledge. We have no evidence before us at all as to what had transpired with his previous counsel. Nor has any waiver of privilege been provided to the Crown. Mr Chechelnitski does say in his affidavit that he had not seen the summary of facts at the time the pleas of guilty were entered. He clearly had, however, seen it by the time of sentencing as it was discussed with the probation officer.

[34] In these circumstances, the application to adduce further evidence had to be and was refused.

Submissions of Mr Chechelnitski on the appeal

[35] Mr Chechelnitski put forward three grounds of appeal. The first was that Paterson J erred in imposing sentence without determining the disputed facts. The second ground was that the sentence imposed was manifestly excessive in that the starting point of five years imprisonment was too high and there was insufficient weight given to the mitigating factors. The third ground was that the sentence imposed was disparate with those imposed on the Ukrainians.

[36] On the first ground Mr Hart pointed to the fact that it was clear from the pre-sentence report that there remained a dispute as to the facts and this, in his submission, should have been resolved before sentencing took place. He said that there is no evidence that the differences between the summary of facts and the pre-sentence report were addressed at the time of sentencing.

[37] On the second ground it was submitted that Paterson J had erred in determining that the involvement of Mr Chechelnitski was “certainly not minimal” and that he “played a prominent part in the guiding of the three migrants”. It was also submitted that there was no evidence that Mr Chechelnitski had received any financial reward and that in fact he had never even been reimbursed for his airline ticket to New Zealand. In Mr Hart’s submission, the offending involved a low degree of criminality.

[38] It was clear, Mr Hart said, that Mr Chechelnitski was not the organiser and that all the travel arrangements had been made by a third party who had also received the payment from the Ukrainians. The Ukrainians were also educated and knowingly purchased passports to which they were not entitled. It was acknowledged that Mr Chechelnitski was a guide but the sole arrangements made by him involved purchasing airline tickets when the third party had failed to do so and changing those tickets when the trip through Australia proved impossible.

[39] It was also submitted that the specified aggravating factors in s98E were not present, other than the number of migrants involved. There was the absence of any form of bodily harm to the migrants or risk of such harm, no involvement of an organised criminal group and no inhuman or degrading treatment. It was also noted that any “schooling up” of the Ukrainians was, on the statements taken from the three Ukrainians, limited and only related to the female Ukrainian, and in any event could only have arisen as a result of a request or willingness on their part.

[40] The reliance placed by the judge on Feng Lin was also criticised as the situation in that case did involve possible harm to the migrants and showed a higher level of organisation. A number of other authorities from other jurisdictions were referred to but Mr Hart acknowledged that the different statutory schemes and sentencing philosophy in those other jurisdictions meant that they were of limited assistance.

[41] Mr Hart submitted further that the Judge erred in failing to have proper regard to mitigating factors. These included the offer of the sum of $10,000 by way of a fine. The letter provided by the three friends of Mr Chechelnitski confirmed that the sum of $10,000 remained available. The Judge also had erred in minimising the assistance provided by Mr Chechelnitski to the authorities and he had failed to take into account the remorse shown by him.

[42] On the third ground of appeal, it was submitted that the sentence imposed was disparate with those imposed on the Ukrainians, being sentences of four and a half months imprisonment for two of them and of five months three weeks imprisonment for the other. The role of the Ukrainians could not, in his submission, be characterised as that of victims. Although the Ukrainians were charged with different offences from Mr Chechelnitski, Mr Hart submitted that there is no significant difference in culpability; the present offending was akin to a “common enterprise”. It was submitted, therefore, that the disparity in this case was such that a reasonably minded independent observer would consider that something had gone wrong with the administration of justice.

The Crown’s submissions on the appeal

[43] With regard to the first ground of appeal, the Crown submitted that Mr Chechelnitski had pleaded guilty to the charge in full knowledge of the case against him, including the statements made by the three illegal migrants. At sentencing, his counsel had accepted the summary of facts and it is not open to him on a sentence appeal to seek to cast his involvement in a different light.

[44] With regard to the second ground of appeal and the starting point taken by the Judge, it was acknowledged that the offending lacks many of the worst features of this type of activity, given that the migrants seem to have been willing participants and were not ill treated. On the other hand, in the Crown’s submission, it was by no means spur of the moment offending. In this regard, the Crown pointed to the acquisition of false passports, chosen to exploit the visa status of Israel. The scale of the enterprise was also sufficient to support a person travelling with the illegal migrants.

[45] It was also submitted that deterrence was plainly a key factor, given that people smuggling is a large scale worldwide commercial enterprise. Offending even towards the lesser end of the continuum still reflects the illegal immigration of people for commercial gain and this is reflected by the choice of the 20 year maximum for the offence. It was therefore submitted that the Judge’s indication of a starting point of between six and eight years for an organiser of such activity was not out of the range but indeed an appropriate starting point for this type of offending.

[46] The starting point of five years for Mr Chechelnitski represented an appropriate reduction to reflect his level of involvement. Indeed, it was submitted that it could even be seen as generous. Mr Chechelnitski had been there at the outset, meeting the three Ukrainians in Kiev. He had met them again in Bangkok and purchased tickets for them to travel via Australia and then had purchased tickets via Hong Kong when re-routing became necessary. He had also taught them Jewish phrases and customs to assist them in their travel on false Israeli passports. In the Crown’s submission, Mr Chechelnitski was engaged in active management and, as regards the three Ukrainians, it is difficult to see his role as other than as an organiser. In the Crown’s submission, his role was by no means a peripheral one.

[47] In terms of mitigating factors, it was submitted that Paterson J was right to query the availability of money in circumstances where Mr Chechelnitski had filed material that emphasised the financial hardship his family was suffering. The Judge was also right to reject the idea that smugglers could include a fine for being caught as an expense item. It was also submitted that no credit above the guilty plea should be given for remorse in circumstances where Mr Chechelnitski is effectively denying his guilt and where the only real remorse is for his own circumstances. It was submitted that the 18 months discount was a more than adequate deduction for the guilty plea in circumstances where Mr Chechelnitski was effectively caught red-handed and was faced with statements by the three illegal immigrants detailing
his involvement.

[48] With regard to the third ground of appeal, it was submitted that it is notoriously difficult to mount disparity arguments by comparing sentences imposed at a different time for different offending. In the Crown’s submission, there has been an increasing recognition that many illegal migrants caught up in people smuggling can rightly be seen as victims rather than offenders and this has meant that the focus has shifted onto those who organise such activities. In a particular case, this different focus may work to the advantage of the illegal migrants who may not be victims in any real sense. At their sentencing the migrants claimed to have been duped by Mr Chechelnitski. If in fact this was not so and they were not victims in any real sense, they were fortunate in being treated as such, but this is, in the Crown’s submission, no basis for a disparity claim.

Discussion

[49] The first ground of appeal is that the Judge should not have sentenced while the facts remained in dispute. Under s24(2) of the Sentencing Act 2002 a disputed fact hearing must occur where a fact that is relevant to the determination of the sentence or other disposition of the case is asserted by one party and disputed by the other. In this case, the summary of facts was accepted at sentencing on behalf of Mr Chechelnitski. It is not uncommon for a defendant to change his stance on the facts between the pre-sentence report and the sentencing or to make a tactical decision that it is not appropriate to dispute the facts at the sentencing. A judge is entitled to accept counsel’s statement at face value. As indicated above, there is no evidence before us that Mr Chechelnitski’s then counsel had been instructed to contest any aspect of the statement of facts. Nor is there any assertion in his affidavit that Mr Chechelnitski was unaware that his counsel had made that concession at sentencing.

[50] In any event, according to the pre-sentence report, Mr Chechelnitski “partially agreed” with the police summary of facts. He disagreed that he was organiser. He said that he was the “guide and assisted the three (illegal migrants)”. This is exactly the basis on which he was sentenced. Mr Chechelnitski then went on to paint himself as an unknowing dupe. As already indicated, however, one of the elements of the charge to which he pleaded guilty was that he knew that the migrants were unauthorised migrants. He could not therefore deny this element was present. This ground of appeal must fail.

[51] Moving to the second ground of appeal, we consider the starting point taken by the Judge to be entirely appropriate. Migrant smuggling must be seen as serious offending. It concerns conduct that the international community has declared requires effective action to prevent and combat, and for which New Zealand is obliged to provide sanctions that take into account its gravity. It involves, at its core, the deliberate or reckless circumvention of States’ immigration laws for commercial gain. It is that commercial element of the offending that renders it appropriate to impose severe deterrent sentences on those convicted of it.

[52] It is true that the Ukrainians appeared to be willing participants and that they were not victims in the sense that they were at risk of harm or inhuman or degrading treatment but that is not a necessary ingredient of the offence. There was also no evidence to conclude Mr Chechelnitski was a member of an organised criminal group. It is clear, however, from the 20 year maximum for the offence and the legislative history that migrant smuggling is to be seen as a serious offence, whether the aggravating factors in s98E are present or not.

[53] It follows from what we have said that we also consider that the Judge was quite correct to treat the primary sentencing consideration as being the need for deterrence. We agree with the Judge’s assessment that the starting point for an organiser of an enterprise, such as was involved in this case, would be at least seven or eight years.

[54] We also accept the Crown submission that the starting point of five years taken by the Judge in Mr Chechelnitski’s case could even be seen as generous. In Feng Lin the sentencing Judge took a starting point of seven years imprisonment (a starting point apparently not disturbed on appeal) for offending which, in our view, is relatively similar to the offending in this case. We note in particular that the fact that the offender was not the organiser of the enterprise does not significantly reduce the need for deterrence. As this Court said in R v Mallia CA308/91, 29 November 1991,

Crime by proxy is always a serious matter. It enables the instigator to plan and carry out a crime without himself being directly exposed to detection. For this reason it is important that where the person hired to commit the crime is apprehended the sentence should be such as to discourage others from being tempted to accept similar assignments in return for payment.

[55] We consider that Paterson J assessed the level of Mr Chechelnitski’s involvement entirely appropriately based on the information that was before the Court. Mr Chechelnitski was not sentenced on the basis that he was the organiser but merely on the basis that he was the guide. This, even on his own account, was the role that he was to play and, indeed, did play in Thailand and en route to New Zealand. He also, in Thailand, played a major role in relation to the travel arrangements, including the re-routing when that became necessary. He was involved in some schooling of at least one of the Ukrainians. We note further that, although he was not sentenced on the basis that he had arranged the false Israeli passports, he must have known, from the necessity for schooling, that the Ukrainians were not entitled to such passports.

[56] With regard to mitigating factors, we consider that the Judge quite rightly refused to contemplate imposing a fine in lieu of imprisonment and we agree with the reasons that he gave for that. Section 19(1) of the Sentencing Act 2002 prohibits imposing a fine additional to a sentence of imprisonment unless a particular enactment expressly provides otherwise, which s98C(3) does. In such a case however, the sentencing Judge must still follow the hierarchical structure of penalties set out in the Sentencing Act. Accordingly, where a sentence of imprisonment is imposed, it will be because a fine does not fulfil the purposes of sentencing. We remark too that it would only be in extremely rare cases that the imposition of a fine for offences of this nature would result in a reduced term of imprisonment. We would see a fine as being, in most cases, additional to the sentence of imprisonment.

[57] In our view, the discount of 18 months was entirely appropriate for the mitigating factors of the guilty plea (in the face of a strong Crown case), the previous good character, the remorse (such as it was) and the assistance provided to the authorities. This ground for appeal also fails.

[58] With regard to the third ground of appeal, the Ukrainians were sentenced for a different offence and one with a seven year maximum term of imprisonment as against a 20 year maximum. They were also, perhaps taking a rather generous view of the facts, sentenced on the basis that they were duped into the offending by Mr Chechelnitski. In these circumstances, we accept the Crown submission that there is no basis for a disparity argument.

Result

[59] For the reasons given, Mr Chechelnitski’s appeal against sentence is dismissed.

98B Terms used in sections 98C to 98F

In sections 98C to 98F, unless the context otherwise requires,—
act of coercion against the person includes—
(a) abducting the person:
(b) using force in respect of the person:
(c) harming the person:
(d) threatening the person (expressly or by implication) with the use of force in respect of, or the harming of, the person or some other person
act of deception includes fraudulent action
arranges for an unauthorised migrant to be brought to a state includes—
(a) organises or procures the bringing to a state:
(b) recruits for bringing to a state:
(c) carries to a state
arranges for an unauthorised migrant to enter a state includes—
(a) organises or procures the entry into a state:
(b) recruits for entry into a state:
(c) carries into a state
document includes a thing that is or is intended to be—
(a) attached to a document; or
(b) stamped or otherwise signified on a document
for a material benefit, in relation to doing a thing, means—
(a) after having obtained a material benefit for doing the thing; or
(b) intending to obtain a material benefit for doing the thing
harming of a person means causing harm of any kind to the person; and (in particular) includes—
(a) causing physical, psychological, or financial harm to the person:
(b) sexually mistreating the person:
(c) causing harm to the person's reputation, status, or prospects
unauthorised migrant, in relation to a state, means a person who is neither a citizen of the state nor in possession of all the documents required by or under the law of the
state for the person's lawful entry into the state.

(1) Every one is liable to the penalty stated in subsection (3) who arranges for an unauthorised migrant to enter New Zealand or any other state, if he or she—
(a) does so for a material benefit; and
(b) either knows that the person is, or is reckless as to whether the person is, an unauthorised migrant.
(2) Every one is liable to the penalty stated in subsection (3) who arranges for an unauthorised migrant to be brought to New Zealand or any other state, if he or she—
(a) does so for a material benefit; and
(b) either knows that the person is, or is reckless as to whether the person is, an unauthorised migrant; and
(c) either—

(i) knows that the person intends to try to enter the state; or
(ii) is reckless as to whether the person intends to try to enter the state.

(3) The penalty is imprisonment for a term not exceeding 20 years, a fine not exceeding $500,000, or both.
(4) Proceedings may be brought under subsection (1) even if the unauthorised migrant did not in fact enter the state concerned.
(5) Proceedings may be brought under subsection (2) even if the unauthorised migrant was not in fact brought to the state concerned.

98D Trafficking in people by means of coercion or deception

(1) Every one is liable to the penalty stated in subsection (2) who—
(a) arranges the entry of a person into New Zealand or any other state by one or more acts of coercion against the person, one or more acts of deception of the
person, or both; or
(b) arranges, organises, or procures the reception, concealment, or harbouring in New Zealand or any other state of a person, knowing that the person's
entry into New Zealand or that state was arranged by one or more acts of coercion against the person, one or more acts of deception of the person, or both.
(2) The penalty is imprisonment for a term not exceeding 20 years, a fine not exceeding $500,000, or both.
(3) Proceedings may be brought under this section even if the person coerced or deceived—
(a) did not in fact enter the state concerned; or (as the case may be)
(b) was not in fact received, concealed, or harboured in the state concerned.
(4) Proceedings may be brought under this section even if parts of the process by which the person coerced or deceived was brought or came to or towards the state
concerned were accomplished without an act of coercion or deception.]

98E Aggravating factors

(1) When determining the sentence to be imposed on, or other way of dealing with, a person convicted of an offence against section 98C or section 98D, a court
must take into account—
(a) whether bodily harm or death (whether to or of a person in respect of whom the offence was committed or some other person) occurred during the commission of the offence:
(b) whether the offence was committed for the benefit of, at the direction of, or in association with, an organised criminal group (within the meaning of section 98A(2)):
(c) whether a person in respect of whom the offence was committed was subjected to inhuman or degrading treatment as a result of the commission of the offence:
(d) if during the proceedings concerned the person was convicted of the same offence in respect of 2 or more people, the number of people in respect of whom the offence was committed.
(2) When determining the sentence to be imposed on, or other way of dealing with, a person convicted of an offence against section 98D, a court must also take
into account—
(a) whether a person in respect of whom the offence was committed was subjected to exploitation (for example, sexual exploitation, a requirement to
undertake forced labour, or the removal of organs) as a result of the commission of the offence:
(b) the age of the person in respect of whom the offence was committed and, in particular, whether the person was under the age of 18 years:
(c) whether the person convicted committed the offence, or took actions that were part of it, for a material benefit.
(3) The examples in paragraph (a) of subsection (2) do not limit the generality of that paragraph.
(4) This section does not limit the matters that a court may take into account when determining the sentence to be imposed on, or other way of dealing with, a person
convicted of an offence against section 98C or section 98D.