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Appiah v New Zealand Police

High Court Auckland AP97/97
10 June 1997
Elias J (oral judgment)

Application of Refugee Convention prior to determination of refugee status - Illegal entry to New Zealand - Use of false passport - Article 31

Criminal sentencing - Pre-sentence report - Whether the fact that the appellant had applied for refugee status should have been taken into account as a mitigating factor in sentencing for an offence under the Passports Act 1992

On arrival at Auckland International Airport from the Netherlands, the appellant applied for refugee status. She was found to be in possession of a false Dutch passport. She pleaded guilty in the District Court to a charge under the Passports Act 1992, s 31 alleging possession of a false passport, and was sentenced to three months imprisonment. The sentencing judge did not have a pre-sentence report, nor was the fact that the appellant had applied for refugee status taken into account as a mitigating factor. The appellant submitted that those omissions constituted an error on the part of the sentencing judge, and further submitted that the sentence of imprisonment was inappropriate and unnecessary for a first offence with no aggravating factors.

Held:

1    While normally a court will not impose a sentence of imprisonment without the benefit of a pre-sentence report, the Criminal Justice Act 1985 does not make the obtaining of such report a pre-requisite to a sentence of imprisonment. The sentencing judge was not wrong in deciding on the facts that she could proceed without a report (see para [6]).

2    However, whether the appellant was granted refugee status was a substantial fact which ought properly to have been before the Court imposing sentence. The sentencing judge was not in a position to exercise an informed judgment on the sentencing options available to her without the question of the appellant's refugee status being determined. That does not mean that the appellant, if granted refugee status, would not be subject to penalty under the Passports Act 1992. Nor does it mean that the imposition of such penalty would place New Zealand in breach of Article 31 of the Refugee Convention. However the granting of refugee status would be relevant to the penalty to be imposed which will no doubt be considered in the light of the policy evident in Article 31. The administrative inconvenience of deferring sentencing should not have outweighed the need for the Court to be properly informed in order to exercise the sentencing discretion (see paras [7] & [9]).

Khaboka v Secretary of State for the Home Department [1993] Imm AR 484 (CA) and R v Secretary of State for the Home Department, ex parte Jahangeer [1993] Imm AR 564 (QBD) considered.

Observation:

If the appellant was granted refugee status in New Zealand it may be that a sentence of imprisonment would be unduly harsh.

Refugee Appeal No. 371/92 Re ZJ (9 May 1994) 9 noted

Appeal allowed: question of sentence remitted back to District Court for determination after the question of the appellant's refugee status determined.

Other cases mentioned in judgment

Singh v Police (High Court, Auckland, AP43/92, 6 March 1992, Barker J)

Counsel
S Laurent for the appellant
K Williams for the respondent

[Editorial note: The application of Article 31 of the Refugee Convention is briefly considered in RPG Haines, The Legal Condition of Refugees in New Zealand (Legal Research Foundation 1995) at 26-30.

It is recorded in the High Court judgment that the learned District Court judge regarded it has a "seriously aggravating" feature of the crime that the appellant acknowledged she had known the passport to be false and had obtained it after being denied a visa for entry to New Zealand. The judge said:

These observations must be tempered by the fact that for the genuine refugee, possession of a passport, whether valid or forged, is an essential modern-day prerequisite for flight from persecution: Refugee Appeal No. 67/92 Re BR (10 November 1992). If a false passport is used, it is almost inevitably knowingly used. Whether a defence of necessity is open or not, surely the exigency of the circumstances facing the bona fide refugee is a relevant consideration in determining whether a prosecution should be brought at all, or if brought, prosecuted to a conclusion. That is, whether the defendant is subsequently recognized as a refugee must be relevant not only in the sentencing situation, but also in the logically prior process of bringing and pursuing the prosecution. Because refugee status is declaratory, not constitutive, any person who claims to be a Convention refugee is presumptively entitled to receive the provisional benefit of certain provisions of the Refugee Convention, in particular the non-refoulement obligation and the no penalties obligation contained in Article 31. This is the point made in Khaboka and Jahangeer.  Article 31 should receive a generous and purposive interpretation. See further the brief discussion by James C Hathaway and R Alexander Neve, "Making International Refugee Law Relevant Again : A Proposal for Collectivized and Solution-Orientated Protection" (1997) 10 Harvard Human Rights Journal 115, 161 and by Rodger Haines, "International Law and Refugees in New Zealand" [1999] New Zealand Law Review 119, 128-130.

In R v Uxbridge Magistrates' Court; ex parte Adimi [1999] 4 All ER 520 (Simon Brown LJ and Newman J)  (QBD) important statements were made as to the application of Article 31 in the context of challenges to the convictions entered against a number of asylum-seekers for possessing false passports.  In the Divisional Court is was not disputed that the protection of Article 31 extended not merely to those ultimately accorded refugee status, but also to those claiming asylum in good faith.  Simon Brown LJ held (Newman J agreeing) that:

Simon Brown LJ expressed the hope that decisions to prosecute will be made only in the clearest of cases and where the offence itself appears manifestly unrelated to a genuine quest for asylum.  For a commentary on the case see Clare Dyer, "Asylum-seekers wrongly jailed", Guardian Weekly, August 5-11, 1999, p 9.]

ELIAS J [1] The appellant pleaded guilty in the District Court at Otahuhu to possessing a false passport, an offence under s 31 of the Passport Act 1992.  On her arrival at Auckland Airport she indicated her wish to apply for refugee status and completed an application form to that effect shortly afterwards.  She has now lodged a formal application with the NZ Immigration Service.  I am told in the normal course the application will be processed by the Immigration Service within 6-8 weeks.  If declined, she will have a right of appeal to the Refugee Status Appeals Authority.  Altogether determination of the appellant's refugee status is likely to take approximately nine months.

[2] When the appellant arrived at the Airport she was found to be in possession of a false Dutch passport.  She had been living in the Netherlands, which is a signatory to the 1951 UN Convention on the Status of Refugees, for two years.  The possession of a false passport constituted the offence under the Passports Act 1992.  The maximum penalty provided for is a term of two years imprisonment.

[3] When the appellant appeared for sentence in the Otahuhu District Court on 1 May, she was sentenced to imprisonment for three months.  The Judge regarded it as a "seriously aggravating" feature of the crime that the appellant acknowledged she had known the passport to be false and had obtained it after being denied a visa for entry to New Zealand.  The Judge said:

[4] Given what she described as the serious nature of the offence, the Judge was unwilling to accede to the suggestion that the appropriate penalty would be a fine together with some form of community based sanction. She commented: [5] The Judge did not have available to her a pre-sentence report.  On appeal it is submitted that in not obtaining a pre-sentence report the Judge erred.  The circumstances are said not to have been so "rare and exceptional" as to justify departure from the usual procedure provided for in s 15 of the Criminal Justice Act 1985.  (The reference is to Bryham v Police Thomas J High Court Auckland AP 156/95, 16 September 1995).  Secondly it is submitted that the sentence of imprisonment was inappropriate and unnecessary for a first offender with no aggravating factors.  Finally it is submitted that the fact the appellant had applied for refugee status should have been a mitigating factor in sentencing.  It is also submitted in reliance upon Singh v Police (Barker J, High Court Auckland AP 43/92 6 March 1992) that there seems to be no consistent approach to treatment of offenders who use false documents to enter New Zealand.

[6] While normally a Court will not impose a sentence of imprisonment without the benefit of a pre-sentence report, the Criminal Justice Act 1985 does not make the obtaining of such a report a prerequisite to such a sentence.  I am not prepared to accept that the Judge was wrong in taking the view in the circumstances of an offence under the Passport Act 1992 where the offender had recently arrived in New Zealand and where verification of information able to be given by her directly to the Court would not be practicable by pre-sentence report, that she could proceed without such report.

[7] I am, however, concerned that the information relevant to the offence and the circumstances of the offender in this case was not able to be properly assessed by the Judge until the question of the appellant's refugee status was determined.  My concerns are both general and specifically related to the circumstances of refugee entry.  I am able to allow an appeal against sentence where satisfied that "substantial facts relating to the offence or to the offender's character or personal history were not before the court imposing sentence" Summary Proceedings Act s 121(3)(b).  Whether the appellant is granted refugee status seems to me to be a substantial fact which ought properly to have been before the court imposing sentence.  I do not consider that the Judge was in a position to exercise an informed judgment on the sentencing options available to her without the question of refugee status having been determined.  That does not mean that the appellant, if granted refugee status, would not be subject to penalty under the Passports Act 1992.  Nor does it mean that the imposition of such penalty would place New Zealand in breach of Article 31 of the UN Convention which applies in its terms only where someone claiming refugee status arrives directly from:

[8] Here the appellant arrived from the Netherlands, where she had lived for two years.  But if refugee status is granted to the applicant, it must be relevant to the penalty to be imposed which will no doubt be considered in the light of the policy evident in Article 31.  The cases of Jahangeer [1993] Imm AR 564 and Khaboka [1993] Imm AR 484 cited to me by counsel for the appellant indicate that an applicant for refugee status should be treated in a manner consistent with the policies of the UN Convention until the question of refugee status is resolved.  If the appellant here is eventually granted refugee status it may well be the case that a sentence of imprisonment would be unduly harsh.  As was noted in Refugee Appeal 371/92 Re ZJ (9 May 1994) p 9: [9] For these reasons I am of the view that the sentencing Judge ought not to have imposed the sentence of imprisonment because she did not have before her the significant fact of refugee status which in my view was directly relevant to the appropriateness of the sentence imposed.  Although the exasperation indicated by the Judge sitting in the Court which perforce has to deal with such matters may be understandable, I do not consider that the administrative inconvenience of deferring sentencing should have out-weighed the need for the Court to be properly informed in order to exercise the sentencing discretion.

[10] The appeal is allowed pursuant to s 131 of the Summary Proceedings Act 1957.  The question of sentence is remitted to the District Court at Otahuhu for determination after the question of the appellant's refugee status has been resolved.  Bail is to continue on the same terms.

Solicitor for the appellant: S Laurent (Auckland)
Solicitors for the respondent: Crown Solicitor (Auckland)