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R v Zanzoul (No. 2)
Court of Appeal,
Wellington CA297/06
13 November 2006; 6
December 2006
O'Regan, Potter &
Miller JJ
Article 31 - coming
directly from - whether directly - Article 31
Passport -
reasonable excuse - what would constitute - Passports Act 1992, s
31(1)(f)(ii)
Sentencing -
passport - possession of false passport - factors
to be taken into account - Passports Act 1992, s 31(1)(f)(ii)
This was an appeal
against the decision in R v Zanzoul
(High Court Auckland, CRI 2004-092-007694, 4 August 2006, Winkelmann J)
which imposed a sentence of fifteen months imprisonment with leave to
apply for home detention.
The appellant, a
citizen of Syria, travelled to New Zealand from Bangkok on a Syrian
passport. When interviewed during immigration processing he surrendered
a false Australian passport which he explained allowed him to travel
more freely. A charge of possessing a false
passport was adjourned pending the outcome of the appellant's New
Zealand
refugee claim. In determining that claim the Refugee Status Appeals
Authority found that the appellant left Syria in 1987 and thereafter
travelled extensively, re-entering Syria many times. He had arrived in
New Zealand with the intention of reuniting with his wife, an
Australian citizen, whom he had married in Australia in 1994, having
entered Australia on a visitor's permit. He had subsequently been
obliged to leave Australia after unsuccessfully seeking
recognition as a refugee in that country. After returning to Syria he
travelled to New Zealand via a number of other countries, apparently
using false travel documentation.
After his appeal to the
Authority had been dismissed the appellant pleaded guilty to a charge
under s 31 of the Passports Act 1992 and was sentenced to fifteen
months imprisonment with leave to apply for home detention.
On appeal the appellant
submitted
that even though his claim to refugee status had been ultimately
declined, if at the relevant time he had held a genuine belief that he
would qualify for refugee status, then that would constitute a
reasonable excuse within the meaning of s 31(1)(f) of the Passports Act
1992. It was also submitted that the sentence of fifteen months
imprisonment imposed in the High Court was manifestly excessive.
Held:
1 There was
nothing which linked the possession by the appellant in New Zealand of
a false Australian passport with his claim for refugee status. He had
had a valid Syrian passport on which he could and had travelled
extensively and on which he had entered New Zealand in March 2004. He
was not in the situation of many refugee claimants who were obliged to
travel on false documentation because their country of origin would not
issue passports. On the facts, his possession in New Zealand of a false
Australian passport was completely irrelevant to any genuine belief he
may have had in a claim to refugee status. There was simply no nexus.
He could not plead any such belief as a basis for "a reasonable excuse"
for possession of the false passport (see paras [28] & [29]).
2 Nor could
the appellant seek to call in aid Article 31 of the Refugee Convention
for he did not come to New Zealand "directly" from Syria, the country
where he claimed his life or freedom were threatened. Assuming for the
present purposes that Adimi correctly
stated the law on this point, the appellant, having decided to come to
New Zealand and having applied for a visitor's visa in Bangkok, had
returned to Syria, exited and re-entered Syria legally on a number of
occasions and had then travelled via a number of other countries on
false travel documentation before arriving in New Zealand. On the
facts, he clearly fell outside the extended meaning of "coming
directly" given to those words in Adimi
(see para [30]).
R v Uxbridge Magistrates' Court; Ex parte
Adimi [2001] QB 667 applied.
3 The
deception in possessing the false passport was deliberate. The
appellant was not in a class of persons whose involvement in deception
was unavoidable, and the use of the false passport was unconnected with
the claim he subsequently brought for refugee status. Deterrence was a
relevant and important factor in cases of passport fraud. The starting
point taken by the Judge was well available to her, if not generous to
the appellant, and the resulting sentence could not be regarded as
manifestly excessive notwithstanding the mitigating factors, for which
the Judge had made appropriate allowance (see para [83]).
Appeal dismissed.
Other cases
mentioned in
the Judgment
AHK v Police [2002]
NZAR 531
Markevich v R (2004) 21 CRNZ 41
R v Dowling (1989) 88
Cr App R 88 (CA)
R v Hoe [2001] 2
NZLR 633 (CA)
R v McLeod [1988] 2 NZLR 65
(CA)
R v Ramstead (CA428/96, 12 May
1997) (CA)
R v Ripia [1985] 1 NZLR 122 (CA)
R v Smith [2003] 3 NZLR 617 (CA)
R v Stretch [1982] 1 NZLR 225 (CA)
R v Webber [1999] 1
NZLR 656 (CA)
Udy v Police [1964]
NZLR 235
Counsel
A Shaw and A K
Edgler for appellant
A M Powell and J L
Verbiesen for Crown
[Editorial note: On 10 June
2008 an application for leave to appeal was dismissed by the Supreme
Court of New Zealand. See Zanzoul v R
[2008] NZSC 44 (10 June 2008). This judgment is available on the Case
Search page of this website.]
Judgment of the
Court
A
Leave to appeal against conviction out of time is granted.
B The conviction entered in the District Court on 7
December 2005 in CRN 4092040651 is set aside.
C The appeal against conviction is dismissed.
D The appeal against sentence is dismissed.
Reasons of the Court
(Given by Potter J)
Table of Contents
Introduction
Background
Appeal against conviction
Appeal against sentence
“Conviction” in the
District Court
Conviction
on indictment
District Court’s
jurisdiction to sentence
Judge’s decision to
commit for sentence in the High Court
Was the sentence manifestly excessive?
Observation
Result
Introduction
[1] The appellant Ahmad Zanzoul
appeals against conviction and sentence.
[2] On 7 December 2005 the appellant
pleaded guilty pursuant to s 153A of the Summary Proceedings Act 1957
on an information laid indictably to a charge under s 31(1)(f)(ii) of
the Passports Act 1992, that without reasonable cause he was in
possession of a passport issued on behalf of the Australian Government
that he knew or had reason to suspect had been falsified.
[3] The appellant was sentenced in
the High Court by Winkelmann J on 4 August 2006 to 15 months
imprisonment with leave to apply for home detention.
Background
[4] The summary of facts records
that on Friday 12 March 2004 Mr Zanzoul arrived at Auckland
International Airport from Bangkok, Thailand. He was travelling on a
Syrian passport No 4696510. As he proceeded through immigration and
customs control he was spoken to by New Zealand Customs and referred to
New Zealand Immigration Services. He handed to Immigration
Services a false Australian passport No L7017978. When spoken to by
Police he stated that he had the passport because he could not travel
as easily on a Syrian passport and could travel more freely on an
Australian passport. (According to the sentencing notes of Winkelmann
J, at sentencing the appellant denied making this statement, but
nothing turns on this point.)
[5] The appellant sought refugee
status in New Zealand. This was finally declined on 28 June 2005 when
his appeal to the Refugee Status Appeals Authority (“RSAA”) was
dismissed.
[6] The appellant initially entered
a not guilty plea to the charge under s 31 of the Passports Act. The
matter was adjourned on several occasions pending the outcome of his
application for refugee status. After his appeal was dismissed by the
RSAA he indicated a wish to change his plea to guilty, prior to the
preliminary hearing.
[7] On 7 December 2005 the
appellant’s guilty plea was received in the District Court under s 153A
of the Summary Proceedings Act. The entry on the Record Hearing Sheet
records the guilty plea, and under the signature of District Court
Judge Rushton:
Conv and RBTC 3.2.06
10 am.
PORS
psychological assessment.
[8] It was not in dispute, that this
entry in unabbreviated form would read:
Convicted and
remanded with bail to continue until 10 am on 3.2.06. Pre-sentence
report and psychological assessment.
[9] On 19 July 2006 the appellant
came before District Court Judge Blackie for sentence under s 28F of
the District Courts Act 1947. Judge Blackie held that he had
jurisdiction to sentence the appellant only under s 38 of the Passports
Act which would have meant a maximum penalty of three months
imprisonment. He found that he could not impose a sentence under s
31(3) which provides for a maximum term of imprisonment of ten years or
a fine not exceeding $250,000 or both, because the appellant had not
been convicted on indictment. He exercised his power under s 28G of the
District Courts Act and declined to convict and sentence the appellant,
instead committing him to the High Court for sentence.
[10] In an addendum to his ruling
Judge Blackie noted that a conviction was entered on the record but
that the District Court did not have jurisdiction to enter a conviction
until it decided whether or not to deal with the matter “in a summary
sense” or to refer the matter to the High Court for sentence. He
considered that the conviction entered would need to be set aside by
the High Court.
Appeal against conviction
[11] By s 383 of the Crimes Act 1961
any person “convicted on indictment” may appeal to this Court against
conviction and sentence.
[12] Somewhat ironically, since the
appellant’s argument on his appeal against sentence is premised on his
having been convicted summarily on 7 December 2005, the appellant has
filed an appeal against conviction under s 383. The Notice of Appeal
dated and filed on 13 November 2006 records the date of conviction as 4
August 2006 in the High Court at Auckland. When sentence was
passed on 4 August 2006, the High Court did not enter a conviction, so
in order to found the appeal against conviction the appellant must be
presumed to accept that he was deemed to have been convicted on
indictment under s 3 of the Crimes Act.
[13] The appeal against conviction
was filed only on the date of hearing and was out of time by more than
two months. The appellant states in the Notice of Appeal that
while he filed his appeal against sentence in time he was advised by
his counsel only on 9 November 2006 that he had grounds for an appeal
against conviction based on a mistake of law.
[14] Mr Powell, counsel for the
Crown, responsibly acknowledged that the delay in filing the appeal
against conviction had not caused prejudice and of itself the delay was
not so lengthy as to be a decisive factor. Therefore the Crown did not
oppose leave to appeal being granted, and helpfully prepared and filed
at very short notice, submissions on the appeal against conviction.
[15] Because the appellant entered a
guilty plea to the charge under s 31 of the Passports Act, only if
there are exceptional circumstances can his appeal against conviction
succeed: Udy v Police [1964]
NZLR 235, R v Stretch [1982]
1 NZLR 225, R v Ripia [1985]
1 NZLR 122.
[16] The appeal against conviction
is said to be based on the reasoning of William Young J (as he then
was) in AHK v Police [2002]
NZAR 531. No affidavits have been filed by the appellant or by
counsel Mr Trenwith, who represented him at the time his plea was
entered, in order to place before this Court evidence of the
circumstances in which the plea of guilty was entered. Mr Shaw, counsel
for Mr Zanzoul on appeal, has stated in an addendum to his submissions
on the sentence appeal, that the judgment of William Young J only came
to notice after the sentencing submissions were prepared. It is
unsatisfactory that this Court is asked to accept the reasons for the
guilty plea in the absence of any evidence.
[17] However, because we have
reached a clear conclusion that the appellant’s argument must fail on
the facts, we do not propose to consider further the potential
jurisdictional and evidential complexities and inadequacies of the
appeal against conviction.
[18] In AHK v Police the appellant, a 21
year old Iranian student, arrived in Christchurch on a flight from
Japan. He presented a false French passport. He applied for refugee
status in New Zealand. He was charged with possessing a falsified
passport without reasonable excuse under s 31(1)(f) of the Passports
Act 1992. He pleaded guilty and was sentenced to 12 months
imprisonment. At the time he entered the guilty plea his claim for
refugee status was still being processed. The appellant’s appeal
against conviction was allowed. The conviction was quashed and a
re-hearing ordered on the grounds that the plea of guilty was made on
the basis of a material mistake as, if the appellant was a true
refugee, then possession of the falsified passport might well
constitute a reasonable excuse within the terms of s 31(1)(f).
[19] William Young J stated at [12]:
If it is, indeed, the
case that he is found to be a true refugee then the probabilities are
that the charge will be withdrawn. In any event, his claim to refugee
status may well result in a reasonable excuse defence being successful
if the case proceeds to trial.
[20] Counsel for the appellant in
this case focused on this statement, and submitted that even when, as
here, the appellant’s claim to refugee status has been ultimately
declined, if the appellant at the relevant time had a genuine belief
that he would qualify for refugee status, then that could constitute a
reasonable excuse within the meaning of s 31(1)(f). In support of
this argument counsel drew on Article 31 of the 1951 Convention
relating to the Status of Refugees (the Refugee Convention) which
provides that Contracting States shall not impose penalties, on account
of their illegal entry or presence, on refugees, who “coming directly
from a territory where their life or freedom was threatened”, enter the
territory without authorisation.
[21] Counsel also claimed
support from the observation of Winkelmann J on sentencing, that she
was not satisfied on the material before her that the appellant’s
refugee claim was “false or manifestly unfounded” which, she said, was
not a necessary inference to be taken from the fact that it was
ultimately not successful.
[22] We have had the
opportunity of perusing the decision of the RSAA in Refugee Appeal
75429 dated 28 June 2005 which found that the appellant was not a
refugee under the Refugee Convention and dismissed his appeal from the
decision of the Refugee Status Officer of the New Zealand Immigration
Service which declined him refugee status. It appears that this
decision may not have been before Winkelmann J and it is clear from our
reading of the decision that the RSAA did not share her view of the
appellant’s application for refugee status.
[23] The RSAA decision records that
the appellant left his country of origin, Syria, in 1987. Since
then he has many times entered and exited Syria and has travelled
elsewhere on a Syrian passport although he claims that his current
Syrian passport issued in 2002, was issued only after a large bribe was
paid to an official by his brother. He arrived in New Zealand on 12
March 2004 from Bangkok on a Syrian passport (summary of facts).
[24] He intended to reunite in New
Zealand with his wife, an Australian citizen whom he married in
Australia in 1994, having entered Australia on a visitor’s
permit. (He was obliged to later depart Australia because he had
no legal right to remain having made an unsuccessful application for
refugee status.)
[25] From New Zealand he planned to
apply for residence in Australia on the grounds of his marriage to an
Australian citizen. However, he and his wife separated in July 2004,
following which there have been extensive proceedings in the New
Zealand Family Court in relation to custody and access of the two
children of the marriage.
[26] Before he decided in early 2004
to travel to New Zealand from Thailand he returned to Syria (the
country from which he sought refuge in New Zealand on the grounds that
he would be imprisoned and tortured), and he entered and exited Syria
on several occasions without encountering any difficulties. He
then came to New Zealand via a number of other countries where he
apparently used false travel documentation.
[27] The RSAA found a number of
inconsistencies in the appellant’s account of events. The Authority
found that the Syrian authorities had shown no real interest in the
appellant from 2002, notwithstanding his numerous trips in and out of
Syria and rejected the appellant’s claim of their continuing interest
in him. The Authority concluded that there was not a real chance the
appellant would suffer persecution if he returned to Syria.
[28] The significant point in
relation to the appeal against conviction, that arises from this
history of events, is that there is nothing that links the possession
by the appellant in New Zealand of a false Australian passport with his
claim for refugee status. He had a valid Syrian passport on which he
could, and had travelled extensively, and on which he entered New
Zealand in March 2004. He was not in the situation of many
refugee claimants who are obliged to travel on false documentation
because their country of origin will not issue passports. But in New
Zealand, where he proposed to seek refuge and subsequently applied for
refugee status, he handed over a false Australian passport (possibly
because this avoided meeting visa requirements for entry into New
Zealand).
[29] On the facts, the appellant’s
possession in New Zealand of a false Australian passport was completely
irrelevant to any genuine belief he may have had in a claim to refugee
status. There is simply no nexus. He cannot plead any such belief as a
basis for “a reasonable excuse” for possession of the false Australian
passport.
[30] Nor can the appellant seek to
call in aid Article 31 of the Refugee Convention for he did not come to
New Zealand “directly” from Syria, the country where he claimed his
life or freedom were threatened. Mr Shaw referred to R v Uxbridge Magistrates’ Court and
another, ex parte Adimi [2001] QB 667 (QB) for authority that
Article 31 does not require refugees to claim asylum in the first
country they can reasonably do so. In that case the Court held that a
mere short-term stopover en route to the intended sanctuary cannot
forfeit the protection of the article, and that the “touchstones” for
determining whether the protection is excluded will include the reasons
for the stopover or stay in the intermediate country. We shall assume
for present purposes, that Adimi
correctly states the law on this point. Mr Zanzoul, having decided to
come to New Zealand and having applied for a visitor’s visa in Bangkok,
had returned to Syria, exited and re-entered Syria legally on a number
of occasions, and then travelled via a number of other countries on
false travel documentation, before arriving in New Zealand on 12 March
2004 (RSAA decision). On the facts, he clearly falls outside the
extended meaning of “coming directly” given to those words in Adimi.
[31] We conclude therefore that on
the facts the appellant’s appeal against conviction cannot succeed.
There are no exceptional circumstances which would justify this case
being reopened following his guilty plea to the charge under s
31(1)(f).
[32] Our finding leaves open whether
a claim to refugee status which is ultimately dismissed could, in some
circumstances, nevertheless provide a basis for a reasonable excuse
defence to a charge under s 31(1)(f).
[33] The appeal against conviction
is dismissed.
Appeal against sentence
[34] The appellant contends that
the maximum lawful sentence of imprisonment that could be imposed on
him was three months pursuant to s 38 of the Passports Act and that
therefore the sentence of 15 months imposed exceeded the jurisdiction
of the Court and was manifestly excessive.
[35] It was submitted:
(a)
That the conviction entered in the District Court on 7 December
2005 was a summary conviction and accordingly the appellant was not
convicted on indictment within the meaning of s 31(3) of the Passports
Act and was not susceptible to the penalties prescribed by s 31(3).
(b)
Having been summarily convicted the maximum sentence of
imprisonment that could be lawfully imposed upon the appellant was
three months pursuant to s 38(1) of the Passports Act.
(c)
Conviction having already been entered on 7 December 2005 there
was no jurisdiction for Judge Blackie to decline to sentence the
appellant and commit his case for sentence in the High Court.
(d)
Alternatively, even if the High Court had jurisdiction to
sentence the appellant, the maximum sentence of three months
imprisonment under s 38(1) of the Passports Act still applied.
(e)
Alternatively, the sentence of 15 months imprisonment in any
event is manifestly excessive as Winkelmann J erred in according
particular regard to the need for deterrence. Having found that
the appellant’s refugee claim was neither “false nor manifestly
unfounded”, a sentence of community service was the appropriate
response.
“Conviction”
in the
District Court
[36] Counsel for the appellant
relied significantly on the entry of conviction by Judge Rushton in the
Record Hearing Sheet on 7 December 2005 after the appellant’s guilty
plea to the charge under s 31(1)(f) of the Passports Act was received
under s 153A of the Summary Proceedings Act. It was submitted that this
being a summary conviction, the Court was limited to penalties which
follow a “summary conviction” and that the proceeding against the
appellant was “taken in a summary way” in terms of s 38 Passports Act.
[37] Section 153A of the Summary
Proceedings Act relevantly provides:
Defendant may plead
guilty before or during preliminary hearing
(1)
If a defendant is represented by a barrister or solicitor …, he
may, at any time before or during the preliminary hearing of any
information, request that he be brought before the Court (or if he is
at that time before the Court, that he be permitted) to plead guilty to
the offence with which he is charged.
. . .
(6)
If the defendant pleads guilty, then, subject to section 66(6) of
this Act,
(a) Where –
(i)
The offence is an indictable offence referred to in section 6(2)
of this Act; or
(ii)
The offence is an indictable offence described in any of the
enactments referred to in Schedule 1 to this Act; or
(iii)
The defendant elected under section 66 of this Act to be tried by
a jury; or
(iv)
The offence is an indictable offence referred to in Part 1 of
Schedule 1A to the District Courts Act 1947; or
(v)
The offence is an indictable offence referred to in Part 2 of
Schedule 1A to the District Courts Act 1947,
the Court
shall record the plea and adjourn the proceedings for the sentencing of
the defendant in accordance with section 28F of the District Courts Act
1947, and section 47 of this Act [and section 50 of the Bail Act 2000]
shall apply on every such adjournment; or
(b) In any other
case, the Court shall commit the defendant to the High Court for
sentence.
[38] A parallel process is provided
by s 168 Summary Proceedings Act where the guilty plea is entered after the preliminary hearing.
[39] Section 31(1) Passports Act 1992 is an indictable offence
described in Part 2 of Schedule 1 to the Summary Proceedings Act and is
therefore included in s 153A(6) under subsection (6)(a)(ii).
[40] Once a guilty plea has been
received, by subsection (6) of s 153A the Court shall record the plea and adjourn
the proceedings for sentencing under s 28F of the District Courts Act
1947. The remand must be to
the District Court if the offence meets the criteria in subsection (6)
as was the case here. Otherwise the committal must be to the High
Court.
[41] The Court’s jurisdiction under
s 153A is limited to receiving the plea and adjourning the proceedings
for sentencing. There is no jurisdiction to convict.
[42] Once a guilty plea has
been received, by operation of s 28F(3) and (4) the District Court may
sentence an offender on an indictable offence described in Schedule 1
to the Summary Proceedings Act. Alternatively, the Judge may
decline to sentence and instead commit the offender for sentence in the
High Court under s 28G of the District Courts Act.
[43] In this case the notation on
the Record Hearing Sheet indicates that Judge Rushton purported to
enter a conviction and remanded the appellant for sentence. This was no
doubt one of many matters she had to attend to that day, and it is
likely that she overlooked that under s 153A her role was limited to
receiving the guilty plea and remanding for sentence. She had no
jurisdiction to convict. The Judge made no election to either sentence
the appellant or to commit him to the High Court for sentence.
Thus, when Judge Blackie became seized of the matter it was open to him to make the
election. Judge Blackie elected under s 28G to commit the appellant to the High
Court for sentence. He therefore did not convict the appellant and he did not
sentence, and explicitly stated so. Had he elected jurisdiction and convicted and
sentenced, it would have been a “summary conviction”: R v McLeod [1988] 2 NZLR 65
(CA); R v Webber [1999] 1
NZLR 656 (CA). But once he made the election to
commit to the High Court, conviction and sentence came within the jurisdiction of that
Court.
[44] In Webber Richardson P
explained the process at 661:
In short, ss 153A and
168 provide a two-stream process. Where s 153A(6)(b) (or s
168(1)(b)(ii)) applies, the defendant is immediately committed to the
High Court for sentence. Where s 153A(6)(a) (or s 168(1)(b)(i))
applies, the proceedings are adjourned for s 28F to operate. The result
of that process will be either the acceptance of jurisdiction to
sentence and sentencing in the District Court or the declining of that
jurisdiction and the committal of the defendant to the High Court for
sentence.
As an integral part
of the s 28F process applied through s 153A and s 168 the District
Court has the option to transfer the matter to the High Court for
sentencing. Where it exercises that option the defendant has not
during the course of the process up to that point been convicted. He or
she is then deemed to be convicted on indictment in terms of s 3(c) of
the Crimes Act, having been committed for sentence under s 153A (or s
168) incorporating ss 28F and 28G.
This conclusion is
reinforced by considering the expression “summarily convicted” in s
6(3) of the Misuse of Drugs Act and how it fits with s 153A and s 28F.
A defendant who pleads guilty under s 153A cannot be described as
summarily convicted. The plea is recorded and the proceedings are
adjourned for the s 28F process to follow. The District Court is not
obliged to accept jurisdiction to sentence. On the contrary, the
District Court Judge may decline to sentence the offender under s 28F
and instead commit him or her to the High Court for sentence.
Where that course is taken the defendant is never summarily convicted
and must be deemed to be convicted on indictment (s 3 (c) of the Crimes
Act).
[45] In Webber the District Court file had
been noted “convicted” when guilty pleas to cannabis
dealing were entered under s 153A. Richardson P continued at 662:
We are satisfied that
the District Court Judge’s initial notation must be regarded as
erroneous. He had no jurisdiction under s 153A to enter a
conviction. He was limited to recording the guilty plea and
adjourning the proceedings for sentencing following the s 28F
processes.
[46] It is clear, as explained in Webber, that the “conviction”
notation of Judge Rushton on the Record Hearing Sheet on 7 December
2005 was made without jurisdiction and in error.
[47] Mr Shaw submitted that Webber
should not be followed because of the decision in R v Smith [2003] 3 NZLR 617 where
this Court stated at [46]:
Unless a judgment of
a Court is set aside on further appeal or otherwise set aside or
amended according to law, it is conclusive as to the legal consequences
it decides. If it were not so, the principle of legality would be
undermined. The record of the Court of Appeal dismissing the
appellant’s appeal is accordingly conclusive as to disposition of the
appeal until set aside or amended. The suggestions that the
determination can be ignored without being formally set aside and that
the appeal can be heard despite the record of its dismissal, are
contrary to principle.
[48] We consider the situation in Smith differed from the situation
in this case. There the Court had done what it had jurisdiction to do,
but in a manner later found by a superior court to be deficient. Here,
Judge Rushton purported to take a step for which she did not have
jurisdiction, that is, to enter a conviction before the District Court
had elected jurisdiction. Judge Blackie correctly approached his
task as required by s 28F as if the appropriate steps had been taken
under s 153A (receipt of the guilty plea and remand for
sentence). The conviction was treated as having no legal
consequence for the appellant.
[49] If, on the basis of the
judgment in Smith, a formal
step is required to bring about the outcome mandated by Webber, then it is appropriate that
we take it, because had this aspect been drawn to the attention of
Winkelmann J when she sentenced the appellant after the matter was
committed to the High Court she could, and no doubt would, in the
exercise of the High Court’s supervisory jurisdiction, have set aside
the conviction entered in error in the District Court.
[50] Accordingly we set aside
the conviction entered on the Record Hearing Sheet of the District
Court on 7 December 2005 in respect of the appellant in CRN 4092040651.
Conviction on indictment
[51] Neither a guilty plea nor a guilty verdict operates as a
conviction: R v Ramstead CA428/96
12 May 1997. The operative
conviction in any case is the pronouncement of that conviction in open
Court: R v Dowling (1989) 88
Cr App R 88, at 91 (CA).
[52] However, s 3 of the Crimes
Act 1961 provides an extended meaning of “convicted on indictment”:
Meaning of “convicted
on indictment”
For the purposes of
this Act, a person shall be deemed to be convicted on indictment if
(a)
He pleads guilty on indictment; or
(b)
He is found guilty on indictment; or
(c)
He is committed to the [High Court] for sentence
under section 44 or section [153A or section] 168 of the Summary
Proceedings Act 1957; or
(d)
After having been committed … for trial, he pleads
guilty under section 321 of this Act.
[53] Subsections (a) and (b) apply
only where there is an indictment. Prior to committal, the
charges are set out only in the information laid in the District Court
to commence
the process though, as in this case, the charge may be laid indictably.
[54] Section 3 does not expressly
refer to s 28G which provides a further route to committal to the High
Court for sentence. However, s 28G provides that ss 169-171 Summary Proceedings
Act apply when committal to the High Court is pursuant to that provision.
Section 170 of the Summary Proceedings Act provides:
Defendant committed
for sentence to be brought before High Court
A defendant who is
committed for sentence shall as soon as practicable be brought before
the [High Court] for sentence, and any Judge of that Court shall have
the same powers of sentencing or otherwise dealing with the defendant,
and of finally disposing of the charge and of all incidental matters,
as he would have had if the defendant on arraignment at any criminal
sittings of the [High Court] had pleaded guilty to the offence charged
on an indictment [duly presented].
[55] Richardson P summarised the
effect of these interrelated provisions in Webber at 661 as follows:
As an integral part
of the s 28F process applied through s 153A and s 168 the District
Court has the option to transfer the matter to the High Court for
sentencing. Where it exercises that option the defendant has not
during the course of the process up to that point been convicted. He or
she is then deemed to be convicted on indictment in terms of s 3(c) of
the Crimes Act, having been committed for sentence under s 153A (or s
168) incorporating ss 28F and 28G.
[56] Thus when Judge Blackie
committed the appellant for sentence in the High Court there was no
need, nor would it have been appropriate, for Winkelmann J to pronounce
the conviction, for the appellant was deemed convicted when he was
committed to the High Court for sentence.
[57] It is that conviction on
indictment which provides the basis for the appellant’s right of appeal
to this Court pursuant to s 383 of the Crimes Act.
District Court’s
jurisdiction to sentence
[58] Judge Blackie declined to
accept jurisdiction to sentence the appellant in the District Court
because he was not satisfied that he had jurisdiction to impose a
sentence at the appropriate level. He reached the conclusion that
if he accepted jurisdiction he would be convicting the appellant
summarily: R v Hoe [2001] 2
NZLR 633 (CA). He reasoned that because the penalties under s 31(3)
would apply only if the appellant was convicted on indictment, he would
be limited by the penalties prescribed by s 38 of the Passports Act for
a person liable on summary conviction, being imprisonment for a term
not exceeding three months or a fine not exceeding $2,000. He therefore
declined jurisdiction and committed the appellant to the High Court for
sentence.
[59] There is no doubt that the
Judge was correct that if he had entered a conviction it would have
been a summary conviction. McLeod
affirmed by Webber holds that
whether a person has been summarily convicted or convicted on
indictment depends on the disposition of the charges and not on the
manner in which the prosecution was commenced and Hoe is clear authority that a
conviction upon a plea entered under s 153A before committal to trial,
is a summary conviction. Section 3 of the Crimes Act comes into play to
effect a deemed conviction on indictment only when a person is
committed to the High Court.
[60] However, it is s 28F District
Courts Act which provides the maximum sentences when sentencing is to
be in a District Court pursuant to s 153A(6) after a guilty plea has
been received. Section 28F relevantly provides:
Maximum sentences
. . .
(3)
This subsection applies to any case where –
(a)
A person pleads guilty under section 153A or section 168 of the
Summary Proceedings Act 1957, before or during the preliminary hearing,
to
(i)
Any indictable offence triable summarily described in section
6(2) of that Act; or
(ii)
Any indictable offence triable summarily described in Schedule 1
to that Act; or
(iii)
Any offence for which the accused elects trial by jury under
section 66 of that Act; or
(iv)
Any indictable offence referred to in Part 1 of Schedule 1A to
this Act; or
(v)
Any indictable offence referred to in Part 2 of Schedule 1A to
this Act; and
(b)
The Court accepts jurisdiction.
(4)
In any case to which subsection (3) of this section applies,
(a)
Any trial Judge may sentence the person to imprisonment or a fine
or both, not exceeding,
(ii)
In the case of imprisonment, the maximum term prescribed by law;
or
(iii)
In the case of a fine, the maximum amount prescribed by law or,
if no maximum amount is so prescribed, $10,000:
(b)
Any Judge who is not a trial Judge may sentence the person to
imprisonment or a fine or both, not exceeding the maximum term or
amount prescribed by section 7 of the Summary Proceedings Act 1957.
[61] In this case the appellant
entered a guilty plea under s 153A to an indictable offence in Schedule
1 to the Summary Proceedings Act (s 31 of the Passports Act) and
accordingly subsection (3)(a) applied. If the District Court had
accepted jurisdiction as provided in subsection (3)(b), then the
District Court Judge could have imposed a sentence within the limits
prescribed by subsection (4).
[62] Pursuant to subsection (4)(a)
the maximum term of imprisonment and maximum fine prescribed by law are
those prescribed by s 31(3) of the Passports Act:
Every person who
commits an offence against subsection (1) is liable on conviction on
indictment to imprisonment for a term not exceeding 10 years, a fine
not exceeding $250,000, or both.
[63] By s 28F(4)(b) a further
limitation is imposed by s 7 of the Summary Proceedings Act if the
appellant had been summarily convicted of the offence. Section 7
provides:
Maximum penalty on summary conviction for indictable offence
(1) Subject to subsection (2) of this section, where
any person is summarily convicted of an offence mentioned in section 6
of this Act, the Court may sentence that person
(a)
To imprisonment for a term not exceeding 5 years; or
(b)
to a fine not exceeding,
(i)
The maximum amount prescribed by law; or
(ii)
If no maximum amount is so prescribed, $10,000,
or to both.
[64] The Summary Proceedings Act
allows for the possibility that a proceeding commenced indictably might
be directed back to the summary jurisdiction and expressly preserves by
s 28F the maximum terms of imprisonment, subject to the jurisdictional
limitations prescribed by s 7. The words “is liable on conviction
on indictment” do not have the effect of excluding summary
jurisdiction. They have the effect of establishing indictable
jurisdiction for penalty purposes.
[65] Section 31(3) does not restrict
the penalties it prescribes to persons convicted on indictment. It
provides the level of penalties for persons liable to conviction on indictment
(whether convicted on indictment or summarily convicted).
[66] As the Crown analysed in its
submissions, “is liable” is a shorthand device used throughout the
Crimes Act. It is defined in s 2 of the Crimes Act:
Is liable means is liable on
conviction on indictment.
[67] The expression in s 31(3) of
the Passports Act (“… liable to conviction on indictment …”), is thus
identical to that used to describe the penalty for indictable offences
in the Crimes Act. The Crown noted that this is consistent with s 11 of
the Crimes Act which provides that all indictable crimes under other
enactments are subject to the generic provisions of the Crimes Act
dealing with crimes.
[68] By way of example, s 231 of
the Crimes Act provides:
Burglary
(1)
Everyone commits burglary and is liable to imprisonment for a
term not exceeding 10 years who –
[69] By the definition of “is
liable” in the Crimes Act that provision means “… liable on conviction
on indictment for a term not exceeding 10 years …”.
[70] Persons charged indictably
with burglary who exercise their right to plead guilty under s 153A
prior to committal, must be sent to the District Court for sentence
because burglary is a Schedule 1 offence. But they must then be
sentenced in the District Court to a penalty in accordance with s 231.
There is no summary equivalent for the offence of burglary so if the
imposition of the penalty prescribed by s 231 required conviction on
indictment, there would be no provision under which to sentence
following the guilty plea. Plainly, as the Crown pointed out,
that cannot be correct.
[71] In s 31(3) of the
Passports Act the shorthand expression available under the Crimes Act
is not used, and the full description “liable to conviction on
indictment” is stated. However, that provision applies in the
same way as provisions such as s 231 of the Crimes Act, to prescribe
the level of penalties for a person liable to conviction on indictment
under s 31.
[72] Once the correct interpretation
of s 31(3) is understood, s 38 follows logically. Section 38
provides penalties for offences under the Passports Act and relevantly
provides:
Penalties
(1)
Every person who commits an offence under this Act in respect of
which either
(a)
No penalty is provided elsewhere than in this section; or
(b)
Proceedings in respect of that offence have been taken in a
summary way in accordance with the Summary Proceedings Act 1957,
is liable
on summary conviction to imprisonment for a term not exceeding 3 months
or a fine not exceeding $2,000.
[73] Section 38 applies in two
situations:
(a)
As the fallback if there is no applicable penalty provision in
the Act; or
(b)
Where proceedings are “taken in a summary way”.
[74] There are numerous examples in
the Passports Act where the fallback provision in s 38(1)(a) comes into
play including ss 11(1), 12(4), 15(2), 22(1), 27(1) and 42(2) which are
all offences involving a failure without reasonable excuse to comply
with the demands of Customs Officers. No penalty is provided
elsewhere in the Act, and it is appropriate that the maximum penalties
in s 38 should be applied to these clearly minor offences.
[75] In relation to s 38(1)(b), s 6
of the Summary Proceedings Act provides for summary jurisdiction in
respect of indictable offences. Section 6(1) provides:
Summary jurisdiction
in respect of indictable offences
(1)
A Court presided over by a [District Court Judge] shall have
summary jurisdiction in respect of the indictable offences described in
the enactments specified in Schedule 1 to this Act, and proceedings in
respect of any such offence may accordingly be taken in a summary way
in accordance with this Act.
[76] Thus, proceedings in respect of
an offence under s 31(1) of the Passport Act may be “taken in a summary way”.
This simply reflects the discretion of the prosecuting authority to
proceed in the manner it sees fit. If proceedings are taken
summarily, then the lesser penalties prescribed by s 38 apply.
That is not the case here. The appellant was charged indictably.
Section 38(1)(b) can be contrasted with a provision such as s 9(3) of
the Misuse of Drugs Act 1975 which was in issue in Hoe. It provides a lesser penalty
where the person is “summarily convicted”. The reliance of the
appellant on the authority of Hoe
is misplaced.
[77] In this case, Judge Blackie
could have elected to summarily convict the appellant and to sentence
him to a penalty under s 31(3) of the Passports Act, subject to the
limits imposed by s 7 of the Summary Proceedings Act. Indeed, the Judge
could have imposed the same sentence as did Winkelmann J, of 15 months
imprisonment.
[78] The Crown acknowledged in
submissions that the argument advanced by the Crown to Winkelmann J on
sentencing that s 7 of the Summary Proceedings Act supplies a penalty
of five years imprisonment for the purpose of s 38(1)(a) cannot be
supported. We agree. Section 7 does not provide the penalty for any
offence. Its sole purpose and effect is, as set out in [63] and
[64], to limit the jurisdiction of the District Court in sentencing
following summary conviction.
Judge’s decision to
commit for sentence in the High Court
[79] While Judge Blackie had
the jurisdiction to sentence the appellant in the District Court in
accordance with the penalty provision in s 31(3) of the Passports Act,
and could have done so on a summary conviction, he also had a
discretion under s 28G to elect to decline jurisdiction and commit the
appellant for sentencing in the High Court. Section 28G provides:
Judge may decline to
sentence
Notwithstanding
section 28F of this Act, in any case to which that section would
otherwise apply, the Judge may decline to sentence the offender under
that section and instead commit him to the High Court for sentence; and
sections 169 to 171 of the Summary Proceedings Act 1957, with any
necessary modifications, shall apply.
[80] When the Judge made that
election to commit the appellant to the High Court for sentence, the
High Court became properly seized of the matter.
Was the sentence
manifestly excessive?
[81] The High Court Judge had
jurisdiction to impose a penalty in accordance with s 31(3) of the
Passports Act on committal by Judge Blackie pursuant to s 28G.
Winkelmann J referred to the judgment in Markevich v R (2004) 21 CRNZ 41 and
having determined that the facts of this case were less serious than
those in Markevich, adopted a
starting point at the lower end of the range of two to three years
adopted by Priestley J in Markevich.
>From the starting point of two years she allowed a discount for the
appellant’s guilty plea and also on account of his suffering from
clinical depression. She granted leave to apply for home
detention. In finding that the facts of this case were less
serious than those in Markevich
the Judge observed that she was not satisfied the appellant’s refugee
claim was false or manifestly unfounded on the material before her,
which we have noted, did not appear to include the decision of the RSAA
dated 28 June 2005.
[82] For the appellant, issue
was taken with the starting point adopted by the Judge and that she
considered deterrence to be a relevant factor in sentencing . Mr Shaw
submitted that where an individual has claimed refugee status and that
claim cannot be said to be either abusive or manifestly unfounded,
there was no room for any notion of deterrence.
[83] The appellant’s deception in
possessing a false passport was deliberate. As we have observed at
[28], the appellant was not in a class of persons whose involvement in
deception was unavoidable, and the use of the false passport was
unconnected with the claim he subsequently brought for refugee status.
Deterrence is a relevant and important factor in cases of passport
fraud. We consider the starting point taken by the Judge was well
available to her, if not generous to the appellant, and the resulting
sentence cannot be regarded as manifestly excessive notwithstanding the
mitigating factors, for which the Judge made appropriate allowance.
[84] The sentence appeal is dismissed.
Observation
[85] The provisions dealing with the
indictable and summary jurisdiction that are exposed by this appeal and
which we have been obliged to address in considerable detail have been
strongly criticised for their complexity. In the judgment of this
Court in Webber in 1998 the
Court recorded at 662:
… our continuing
strong concern that unnecessarily complex and confusing procedural
provisions of the criminal legislation are causing difficulties for
those engaged in the busy work of the criminal courts.
The Court
recommended very early legislative consideration.
[86] Nothing has changed.
The Criminal Procedure Bill currently before Parliament does not
address these provisions. The Courts and counsel involved in the
criminal jurisdiction continue to wrestle with the complexities of
these procedural provisions, as this judgment demonstrates. Nearly a
decade after this Court expressed its concern in Webber, we reiterate that
concern. The need for legislative consideration is obvious and
urgent.
Result
[87] We set aside the conviction
entered by Judge Rushton in the District Court on 7 December 2005 in
CRN 4092040651.
[88] We grant leave to appeal
against conviction but dismiss the appeals against conviction and
sentence.
Solicitors: Crown
Law Office (Wellington)