Court of Appeal Cases
Court of Appeal,
Wellington
CA298/2008;
[2008] NZCA 448
15 September 2008; 30 October 2008
Robertson, Wild and Cooper
JJ
Sentencing - false
declaration in support of refugee application - factors to be taken
into account - Crimes Act 1961, s 229A - Immigration Act 1987, s
142(1)(c)
Mr Sabuncuoglu is a
citizen of Turkey and the holder of a Turkish passport. He is also a
citizen of Iraq, having been born in that country. He was granted a
visitor's visa to New Zealand on 4 April 2001 and arrived on 16 April
2001, with the intention of staying. To that end he disposed of his
legitimate Turkish passport and on entry to New Zealand passed himself
off as a refugee coming from a different destination, giving a
different name and identity to the New Zealand immigration authorities.
On 30 October 2001 and 2 April 2002 he completed
applications to work in New Zealand in the name of "Jahad". In each of
those applications he failed to declare that he was known by another
name and that he held Turkish citizenship. Further false work
applications were tendered by him on 14 November 2002, 9 May 2003, 21
October 2003 and 27 June 2005. Within the same period he completed a
false claim for refugee status in New Zealand. When interviewed by a
refugee status officer he maintained that he was "Jahad" and again
failed
to disclose both his true name and his Turkish nationality.
Charges were laid on 29
November 2006. There were two counts of using documents with intent to
defraud under s 229A of the Crimes Act 1961 and three counts alleging
that he supplied information to an immigration officer and refugee
status officers knowing that it was false or misleading in material
respects. The charges under the Crimes Act carried maximum penalties of
seven years' imprisonment. The other three charges laid under s
142(1)(c) of the Immigration Act 1987 were punishable by a maximum term
of seven years' imprisonment and/or a fine not exceeding $100,000. The
appellant was committed for trial on 12 July 2007. He pleaded guilty on
28 February 2008.
On 9 May 2008 the
appellant was sentenced by a District Court Judge to an effective term
of two years' imprisonment. The Judge noted that the relevant maximum
penalty in relation to the Immigration Act offences had been very
significantly increased (from three months to seven years) in June 2002
and referred to various High Court authorities emphasising the
importance of deterrence in sentencing for breaches of immigration
laws. He noted that since his arrival in New Zealand, the appellant had
met and married his wife and that they had an infant child together.
The appellant's wife was a person who came to New Zealand from Iraq
with her family and has been granted New Zealand citizenship. The Judge
concluded that the appropriate starting point for the offending was a
sentence in the order of two years and nine months' imprisonment.
Applying a substantial discount for the guilty plea, he reduced the
sentence to two years. He rejected a defence plea for home detention,
on the basis that it would not result in an adequate deterrent to
others who might be minded to try to enter the country illegally. Such
an approach would not be fair to those who presented themselves
"honestly at the border", nor would it uphold the integrity of the
immigration system.
On appeal to the Court
of Appeal the appellant
did not challenge the starting point adopted by the Judge. He
submitted, however, that the final sentence was clearly excessive. In
particular he alleged that the sentencing judge gave an inadequate
discount for the guilty pleas, failed to make allowance for the fact
that he suffered from post traumatic stress disorder and gave
insufficient weight to the consequences of a sentence of imprisonment
of more than twelve months. The most relevant consequence was the fact
that, given such a sentence, the appellant would be subject to the
provisions of s 7(1)(b) of the Immigration Act and consequently
ineligible for an exemption or permit under that Act for a period of
ten years.
Held:
1 There was
nothing to the ground of appeal which asserted that a defendant can
delay the entry of a guilty plea while pre-trial issues are advanced
and still expect to obtain full credit for a relatively late guilty
plea. While it is common for a discount of one-third to be given in
respect of guilty pleas entered at the first reasonable opportunity,
the extent of the discount properly diminishes as the trial approaches.
It is not correct that there is a well established sentencing practice
that a defendant can delay the entry of a guilty plea whilst pre-trial
issues are advanced and still expect to obtain full credit in respect
of a relatively late guilty plea. In the present case the sentencing
judge justifiably described the guilty plea as one that was entered
somewhat belatedly yet he still gave a substantial discount for the
guilty plea, a discount of about twenty-seven percent. There was no
room for a suggestion that any greater discount should have been
granted (see paras [17] & [18]).
2 As to the
submission that the sentencing judge had failed to take into account
evidence that the appellant suffers from symptoms and behaviours
consistent with Post Traumatic Stress Disorder, the medical evidence
did not create a sufficient nexus between that condition and the
offending for which he had been convicted. That offending was neither
compulsive nor spontaneous. On the contrary, it was prolonged and
sustained. It could not be said that the disorder reduced the
appellant's moral culpability for the offending. Any link between the
offending and the disorder was too weak to be influential on the
sentencing outcome (see para [27]).
3 As to the
submission that insufficient weight had been given by the sentencing
judge to the consequences of a sentence of imprisonment of more than
twelve months (10 year period during which appellant statutorily barred
from obtaining a permit), it has been emphasised that the function of
the Courts in their criminal jurisdiction is to impose sentences which
are appropriate to the particular offending, which should not be
adjusted so as to take account of other processes which have their own
bases and established regime. The Courts must also maintain
consistency of sentencing and not differentiate between convicted
persons according to their country of origin or the consequences
which would flow following their release (see para [34]).
R v Zhang
(CA56/05, 24 May 2005) followed and applied.
4 While the
present appeal arose in a somewhat different setting, it must be
approached on the same basis. Although cases such as the present do not
give rise to issues of consistency with other sentences, there is an
analogous consideration, which was recognised by the sentencing judge.
That analogy is to persons who present themselves legally at the
border, and comply with New Zealand's immigration laws. It would send a
very wrong message if persons making false claims to refugee status and
committing various offences for the purpose of advancing such claims
were then given reduced sentences so as to avoid what Parliament has
stipulated the consequences of an appropriate sentence should be under
s 7(1)(b) of the Immigration Act 1987 (see para [35]).
5 The
starting point adopted in this case of two years and nine months was
well within the range available to the sentencing judge (see para [37]).
Counsel
A G V Rogers and R P McLeod for appellantThe appeal is dismissed.
[1] This is an appeal against
an effective sentence of 24 months’
imprisonment imposed by Judge Gittos when the appellant pleaded guilty
to two counts
of using documents with intent to defraud under s 229A of the Crimes
Act 1961
and three counts alleging that he supplied information to an
immigration officer
and refugee status officers knowing that it was false or misleading in
material
respects.
[2] The former charges have maximum penalties of seven years’ imprisonment. The other three charges, laid under s 142(1)(c) of the Immigration Act 1987 were p unishable by a maximum term of seven years’ imprisonment and/or a fine not exceeding $100,000.
[3] The appellant is a citizen of Turkey and the holder of a Turkish passport. He is also an Iraqi citizen, having been born in that country. He was granted a visitor’s visa to New Zealand on 4 April 2001 and arrived here on 16 April, with the intention of staying.
[4] Judge Gittos found that in
order to further his intent of entering
New Zealand permanently, the appellant had disposed of his legitimate
Turkish
passport and on entry to New Zealand had passed himself off as a
refugee coming from a
different destination, giving a different name and identity to the New
Zealand
immigration authorities. The Judge observed:
[5] On 30 October 2001 and 2 April 2002 the appellant completed applications to work in New Zealand in the name of “Jahad”. In each of those applications he failed to declare that he is known by another name and that he holds Turkish citizenship. Further false work applications were tendered by him on 14 November 2002, 9 May and 21 October 2003, and 27 June 2005. Within the same time period he completed the false claim for refugee status in New Zealand. He was interviewed by a refugee status officer, maintained that he was Raed Jahad and again failed to disclose both his true name and his Turkish nationality.
[6] Charges were laid against the appellant in the Auckland District Court on 29 November 2006. He was committed for trial on 12 July 2007. He pleaded guilty on 28 February 2008 and on 9 May 2008 the Judge sentenced him to an effective term of two years’ imprisonment.
[7] The appellant does not challenge
the starting point adopted by the
Judge. However, he says that the final sentence was clearly excessive.
He
alleges in particular that the sentencing Judge gave an inadequate
discount for
his guilty pleas, failed to make allowance for the fact that he suffers
from post
traumatic stress disorder and gave insufficient weight to the
consequences of a sentence
of imprisonment of more than 12 months. The most relevant consequence
is
the fact that, given such a sentence, the appellant will be subject to
the
provisions of s 7(1)(b) of the Immigration Act and consequently
ineligible for an exemption or
permit under that Act for a period of ten years.
The sentence
[8] Judge Gittos noted that the relevant maximum penalty in
relation to
the Immigration Act offences had been very significantly increased
(from
three months to seven years) in June 2002, and referred to various High
Court
authorities emphasising the importance of deterrence in sentencing for
breaches of
immigration laws. He noted that since his arrival in New Zealand, the
appellant had
met and married his wife and that they have an infant child together.
The
appellant’s wife is a person who came here from Iraq, with her family,
and has been granted
New Zealand citizenship.
[9] The Judge noted submissions
advanced on the appellant’s behalf that
for humanitarian reasons, sentences of home detention and community
work
should be imposed. The Judge recorded at [17] that the appellant’s
application
for refugee status had been finally determined against him, and that
the issue for
the immigration authorities concerned what country he should be removed
to. At [18] he
observed:
[10] The Court’s decision could not influence execution of the removal warrant or the place to which the appellant might be removed.
[11] The Judge articulated the
dilemma of sentencing judges in this
area, it being necessary to balance what he described as the “court’s
humanitarian
instincts” to be
generous to the appellant and his family, with the need, which the
Crown emphasised, to apply proper sentencing principles and to sentence
in
accordance with established precedents.
[12] At [21] – [23] he said:
[13] The Judge concluded that the
appropriate starting point for the
offending wasa sentence in the order of two years and nine months’
imprisonment.
Applying a substantial discount for the appellant’s guilty plea, he
reduced the
sentence to two years. He rejected a defence plea for home detention,
on the basis that
it would not result in an adequate deterrent to others who might be
minded to try to
enter the country illegally. Such an approach would not be fair to
those who
presented themselves “honestly at the border”, nor would it uphold the
integrity
of the immigration system.
Discount for guilty plea
[14] In support of the
first ground of the appeal, Mr Rogers submitted
that the Judge should have given a full discount of one-third from the
starting
point of two years nine months, instead of the nine months that the
Judge allowed.
The appellant was charged at the end of November 2006, committed for
trial in July
2007 and entered guilty pleas at the end of February 2008. Mr Rogers
pointed out
that there had been negotiations on the counts to be laid in the
indictment, and
an application under s 344A of the Crimes Act had been dealt with.
After a change of
counsel, when Mr Rogers was instructed, a brief of evidence was
prepared and
signed on 19 January 2008. Having obtained that brief of evidence Mr
Rogers then
obtained instructions from the appellant to plead guilty. The guilty
plea was
entered on 26 February 2008.
[15] Mr Rogers claimed to rely on a “well established sentencing practice” that a defendant is entitled to have matters of law, such as those that were dealt with in the s 344A application, resolved before entering guilty pleas, without forfeiting any part of a reduction in sentence for a guilty plea, particularly where one of the matters raised goes to jurisdiction to hear the evidence proposed to be adduced by the Crown.
[16] For the Crown, Ms Epati
contested the existence of any sentencing
practice that defendants could await admissibility determinations
before
entering guilty pleas
without forfeiting any reduction in sentence. Referring to R v Fonotia
[2007] 3 NZLR 338 and R v Hannigan
CA 396/04, 18 July 2005, she submitted that
the proper approach was simply to allow for a discount of up to
one-third
for a guilty plea at the first reasonable opportunity, with the
deduction
diminishing when a guilty plea is entered at the door of the Court or
after a trial had begun.
[17] We are satisfied that there is nothing in this ground of appeal. While it is now common for a discount of one-third to be given in respect of guilty pleas entered at the first reasonable opportunity, the extent of the discount properly diminishes as the trial approaches. It is not correct that there is a well established sentencing practice that a defendant can delay the entry of a guilty plea whilst pretrial issues are advanced and still expect to obtain full credit in respect of a relatively late guilty plea.
[18] In the present case, Judge
Gittos described the guilty plea as one
that was entered “somewhat belatedly”. That description was justified
having
regard to the chronology that we have earlier set out. Yet the Judge
gave a
substantial discount for the guilty plea, a discount of about 27 per
cent. There is no room
for a suggestion that any greater discount should have been granted. We
consider that what the Judge allowed was very generous in the
circumstances. The
first ground of appeal must fail.
Post Traumatic Stress Disorder
[19] On the second
issue, Mr Rogers noted that a consultant
psychiatrist, Dr Russell Wyness had conducted an assessment of the
appellant and has
provided a report dated 10 April 2008. This assessment was that the
appellant
suffers from symptoms and behaviours that are consistent with Post
Traumatic Stress
Disorder. Mr Rogers submitted that the disorder was a mitigating factor
with
regard to offending and was critical of the Judge for failing to refer
to that
issue in sentencing. He referred to the decision in R v Tapueluelu CA 172/99, 29 July
1999
in which reference was made to a decision of the Supreme Court of
Victoria in R
v Tsiaras [1966] 1 VR 398 at 400. In discussing that case, the
Court of Appeal
said:
[20] Mr Rogers also referred to R v Mohamed [2007] NZCA 170. That
case actually concerned an appellant who suffered from Post Traumatic
Stress
Disorder, including homicidal fantasies. The doctor who assessed him
considered
that his historical experiences contributed to his offending behaviour.
The
Court said at [20]:
[21] In the result, the Court
reduced the sentence on account of that
consideration to one of six years’ imprisonment. Mr Rogers argued that
there should
have been a
reduction in the sentence to take account of the appellant’s mental
state in the present case.
[22] Ms Epati submitted that the appellant was not entitled to any allowance on account of Post Traumatic Stress Disorder. She argued that the propriety of a sentencing discount for a mental condition should be dependant on a clear causal link between the condition and the offence. That could not be shown here where the offending had not been spontaneous, but rather, prolonged and sustained.
[23] Apart from recording of the
fact that the appellant suffers from
that disorder, Mr Rogers did not articulate a basis upon which it
should have been
relevant to the
sentencing exercise. In R v Clarke
CA 225/98, 3 September 1998 the
appellant suffered from a condition known as dysthyma, which is a
depressive
disorder. He was also described as having an anti-social personality
disorder. The
Court observed that the psychiatric reports were “inconclusive as to
the connection
between the appellant’s conditions and his offending and the outlook
for
modification of his behaviour” (p 7). At page 8, the Court observed:
[24] We have already set out the summary which the Court in R v Tapueluelu gave of the Supreme Court of Victoria’s decsision in Tsiaras. The emphasis was on mental illness considered to be capable of reducing moral culpability for the offending.
[25] In the present case, the
psychiatrist who saw the appellant, Dr
Wyness, wrote:
[26] Later in his report, Dr Wyness
said:
[27] These observations do not create a sufficient nexus between the Post Traumatic Stress Disorder from which the appellant evidently suffers and the offending for which he has been convicted. The point made by Ms Epati was that the offending was neither impulsive nor spontaneous. On the contrary, it was prolonged and sustained. It may be that the appellant acted on the basis of a strong desire to escape the circumstances in which he was living in Turkey. His claim to refugee status, however, has been rejected. We do not consider that it can be said in this case that the Post Traumatic Stress Disorder reduced the appellant’s moral culpability for the offending. Further, we are satisfied that any link between the offending and the disorder is too weak to be influential on the sentencing outcome. Consequently, the second ground of appeal also fails.
Consequences of imprisonment for 12 months
or more
[28] In relation to the
third ground of appeal, Mr Rogers noted that
Judge Gittos had not referred to the obligation to impose the least
restrictive
sentencing outcome (s 8(g) of the Sentencing Act 2002). Nor had the
Judge referred to the
obligation under s 16(1) of the Sentencing Act to have regard to the
desirability
of keeping offenders in the community as far as that is practicable and
consonant
with its safety. Mr Rogers also mentioned the rule in s 16(2) that the
Court must not
impose a sentence of imprisonment unless it is satisfied that such a
sentence is
being imposed for all or any of the purposes in ss 7(1)(a) to (c), (e),
(f), or (g),
that those purposes cannot be achieved by a sentence other than
imprisonment and that no
other sentence would be consistent with the application of the
principles in s 8.
[29] Mr Rogers referred to a number
of District Court decisions in
which those two considerations had been emphasised as well as
observations made by
this Court in R v Aurora CA
428/02, 27 March 2003 at [13]:
[30] We also heard from Mr McLeod
who, in a further submission for the appellant, acknowledged that an
alternative sentence of less than 12
months’ imprisonment, or of 12 months’ home detention would not prevent
the
appellant’s removal from New Zealand under s 59 of the Immigration Act,
but would,
however, reduce the period of time that the appellant would be barred
from
lawfully reentering New Zealand from any removal. The reduction would
be from ten years to five years in the event that removal was effected
following completion
of the sentence. Mr McLeod argued that that consequence was properly a
matter
to be weighed in sentencing the appellant.
[31] Ms Epati relied, by analogy, on
what was said in R v Zhang CA
56/05, 24 May 2005, at [16]:
[32] She also pointed out that the penalty for the offences of which the appellant was convicted was increased to a maximum of 7 years’ imprisonment from 18 June 2002 by s 16 of the Immigration Amendment Act 2002. That change must have been made in full knowledge of the consequences under s 7 of the Immigration Act.
[33] We see no reason to depart
from the approach that was taken by
this Court in R v Zhang. In
that case, the sentencing Judge took into account the
fact that the
offender would be deported immediately on the expiration of the
sentence, reducing the sentence by 12 months on that account.
[34] On appeal this Court held that the Judge had been in error in making the reduction. Its reasoning was encapsulated at paragraphs [12] to [16]. In brief, the Court relied on R v Appitu CA 31/98,29 April 1998 and R v Ahlquist [1989] 2 NZLR 177 to emphasise that the function of the Courts in their criminal jurisdiction is to impose sentences which are appropriate to the particular offending, which should not be adjusted so as to take account of other processes which have their own bases and established regime. The Courts must also maintain consistency of sentencing and not differentiate between convicted persons or according to their country of origin or the consequences which would flow following their release.
[35] This appeal arises in a
somewhat different setting, but must be
approached on the same basis. Although cases such as the present do not
give rise to
issues of
consistency with other sentences, there is an analogous consideration,
which was recognised by Judge Gittos. That analogy is to persons who
present
themselves legally at the border, and comply with New Zealand’s
immigration laws.
It would send a very wrong message if persons making false claims to
refugee
status and committing various offences for the purpose of advancing
such claims
were then given reduced sentences so as to avoid what Parliament has
stipulated
the consequences of an appropriate sentence should be under s 7(1)(b)
of the Immigration Act.
[36] While we acknowledge that Mr
Rogers was able to refer to some
sentences imposed in the District Court where that approach appears to
have been
taken, it is wrong in principle and should not be continued. In our
view, the
approach taken by Judge Gittos was entirely correct.
Conclusion
[37] In our view, a starting point adopted in this case of two
years
and nine months was well within the range available to the Judge. He
then gave a
very generous discount for a comparatively late guilty plea. We have
not
been persuaded that any of the grounds of appeal has merit. The appeal
is dismissed.
Solicitors:
McLeod & Associates (Auckland)
for
Appellant
Crown
Law Office (Wellington)