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High Court Auckland CRI 2004 404 287; (2004) 21 CRNZ 41
21 July 2004; 13 August 2004
Priestley J

Article 31 - penalties - illegal entry to New Zealand - use of false passport - Article 31

Passport - offences - sentence - possession of false passport - whether sentence manifestly excessive - factors to be taken into account - Passports Act 1992, s 31(1)(f)(i) - Transnational Organised Crime Bill 2002; UN Convention against Transnational Organized Crime - UN Security Council Resolution 1373

Sentencing - passport - offences - sentence - possession of false passport - whether sentence manifestly excessive - factors to be taken into account - Passports Act 1992, s 31(1)(f)(i) - Transnational Organised Crime Bill 2002; UN Convention against Transnational Organized Crime - UN Security Council Resolution 1373

The appellant, a citizen of the Ukraine, used a false Israeli passport to enter New Zealand illegally on 4 March 2004. He also had in his possession a dishonestly obtained false Israeli driver's licence. When the false passport and driver's licence were detected on his arrival at Auckland International Airport, he claimed he had used them to come to New Zealand to escape persecution in the Ukraine. He made a claim to refugee status. The appellant subsequently withdrew his refugee claim and in the District Court pleaded guilty to a charge under s 31(1)(f)(i) of the Passports Act 1992 of being in possession of a falsified passport and to a second charge laid under s 228(a) of the Crimes Act 1961 of dishonestly obtaining a false driver's licence. He was sentenced to eighteen months imprisonment on each charge. He appealed to the High Court.

1. The sentence of eighteen months imprisonment imposed for the Passports Act offence was not manifestly excessive and the appeal in respect of that conviction was dismissed (see para [45]).

R v Chechelnitski (High Court Auckland, CRI2004-092-001239, 6 April 2004, Paterson J) and Lillandt v The Crown (High Court Christchurch, A69/01, 9 August 2001, William Young J) referred to.

2. In the current world security climate courts have a clear obligation to impose deterrent sentences for the use of false passports to cross frontiers with fictitious identities. So too is deterrence legitimate to underpin New Zealand's immigration controls and discourage illegal entry by fraud and deception. It is abundantly clear that Parliament by the 2002 amendments introduced by the Transnational Organised Crime Bill increased five-fold the maximum penalty for offences under s 31 of the Passports Act 1992. It clearly did so against the background of the need to prevent the movement of terrorists or terrorist groups by the means set out in Resolution 2(g) of the United Nations Security Council Resolution 1373. But it is also clear it resolved to increase the penalty as a matter of general policy (see paras [20] & [30]).

3. In the particular circumstances of the case, the imposition of a significant penalty was justified. The elaborateness of the deception, its premeditation, and the insidious threat which offending of this type presents to New Zealand's border security and immigration controls, clearly merited the District Judge's stipulated start point of two years. Indeed, the brazenness of the offending and in particular its premeditated nature might have justified a higher start point of between two and three years. However, had such a higher start point been deployed a slightly greater weight could be expected to be given to some mitigating factors (see para [43]).

4. The concurrent sentence imposed for the lesser Crimes Act offence was excessive and a term of six months imprisonment should be substituted, to be served concurrent with the eighteen month term imposed for the Passports Act offence (see para [46]).

1. It was not desirable to indicate a tariff for sentencing under s 31 of the Passports Act 1992. It is to be noted that the same maximum sentence is stipulated for a number of offences which are qualitatively different. In addition, on a case by case basis, the circumstances of the offending in the case under appeal will never be exactly replicated. Degrees of culpability will vary. So too will the personal circumstances of the offender and his or her motivation. The sophistication of the false passport may vary. The more sophisticated the falsification and the more elaborate the deception, the greater the culpability and the need to deter (see para [47]).

2. In general terms unremarkable offending under s31(1)(f) of the Passports Act 2002 motivated by a desire to enter New Zealand illegally, could justifiably attract sentences with start points ranging from fifteen months to three years. The relevant criteria of the Sentencing Act 2002 will obviously vary on a case by case basis as will the weighing exercise. Factors which might justify leniency would include an early confession of guilt; immediate or early abandonment of refugee claims which are false or manifestly unfounded; a willingness to provide cogent information leading to the detection of co-offenders and people smugglers; and an acceptance of and co-operation with a speedy return to the offender's country of origin. Those factors should not minimise the need for deterrence but could in appropriate cases temper it (see para [48]).

3. Offenders who do not meet the above criteria; whose motivation is sinister or unexplained; or who deliberately and cynically endeavour to exploit New Zealand's comparatively liberal refugee determination procedures could well merit more severe treatment (see para [49]).

Ghuman v Registrar of the Auckland District Court [2004] NZAR 440 (Baragwanath J)
R v Uxbridge Magistrates' Court; Ex parte Adimi [2001] QB 667
Singh v Police (High Court Auckland, AP43/92, 6 March 1992, Barker J)

The issue

[1] There are many ways of entering New Zealand illegally. One way is to obtain a false passport purportedly issued by a State whose nationals can visit New Zealand without a visa. Approximately one foreigner is detected each week by Customs and Immigration staff at Auckland International Airport attempting to enter New Zealand this way. There are doubtless attempts made at other points of entry. Almost certainly there will be significant numbers of illegal immigrants who have used this method and remain undetected.

[2] This appeal throws up as an issue what sentence should appropriately be imposed on foreigners convicted of this type of offending. Often (but not invariably) the charges are laid under s31(1)(f) of the Passports Act 1992 (infra) which, since June 2002, has carried a maximum penalty of ten years imprisonment and/or a fine of $250,000. Prior to June 2002 the maximum penalty was two years imprisonment.

Background to appeal

[3] The appellant pleaded guilty to two charges laid in the Manukau District Court. The first was under s31(1)(f)(i) of the Passports Act 1992 of being in possession of a falsified passport. The second charge, laid under s228(a) of the Crimes Act 1961, was of dishonestly obtaining a false driver's licence. On 18 June 2004, the appellant was sentenced by Harvey DCJ to a term of 18 months imprisonment on each charge. The appellant challenges that sentence.

[4] There is no contest over the background facts. The appellant was a foreign national (from the Ukraine) who acquired and deliberately used a false passport (purportedly issued by Israel) to enter New Zealand illegally. He also had in his possession a dishonestly obtained false Israeli driver's licence.

[5] During the first two months of 2004 the appellant obtained these two false Israeli documents from a travel agent in Kiev, the capital of the Ukraine. For the "package", which included the price of airline tickets to New Zealand and the false documentation, he paid US $5,000.

[6] On 28 February 2004 the appellant flew from Kiev to Bangkok. On this sector of his journey he destroyed his Ukrainian passport and disposed of it. He entered Thailand on his false Israeli passport.

[7] Whilst in Bangkok the appellant used his false passport to acquire an onward air ticket to Auckland via Singapore. He left Thailand on 3 March 2004. He arrived at Auckland the next day. He attempted to enter New Zealand saying that he was the bearer of the passport and was visiting New Zealand for a holiday.

[8] Travelling on the same flights as the appellant were at least two other Ukrainian nationals similarly equipped. Whether or not the appellant knew these people is problematic.

[9] It was accepted by both counsel that the appellant was not the architect of the scheme whereby he attempted to enter New Zealand. He was a user of it, having purchased the false documents from a people smuggling organisation.

[10] False documents were not all that was supplied. Almost certainly the appellant was accompanied to New Zealand by an agent or a guide. He was undisputedly given assistance and training which included advice on how to dress like an Israeli, familiarity with Hebrew phrases, and Israeli magazines, all of which were clearly designed to bolster the deception that the appellant was an Israeli citizen.

[11] The appellant's false passport and Israeli driver's licence were detected by Customs and Immigration officers on his arrival at Auckland International Airport. When taxed with his use of these documents, the appellant claimed that he had used them to come to New Zealand to escape persecution in the Ukraine. He claimed refugee status and invoked the provisions of the 1951 Convention Relating to the Status of Refugees and its Protocols.

[12] Two weeks before being convicted, the appellant, having sought advice on the topic, withdrew his refugee claim, thereby dropping the shield with which New Zealand's international law obligations provided him pending the determination of a refugee claim.

The offence

[13] The appellant was prosecuted and convicted of an offence under s31(1)(f) of the Passports Act 1992. Significantly that provision creates a number of discrete offences. It provides :

31 Other offences

(1) Every person commits a crime who -

(a)    For purposes of travel and without reasonable excuse, uses a New Zealand passport, certificate of identity, or emergency travel document that he or she knows or has reasonable cause to suspect has expired or has been cancelled; or

(b)    For purposes of travel or identification and without reasonable excuse, uses a New Zealand passport, certificate of identity, or emergency travel document that he or she knows or has reasonable cause to suspect was issued to or in respect of another person; or

(c)    Being a person to whom a New Zealand passport, certificate of identity, or emergency travel document has been issued, without reasonable excuse permits another person to have possession of that document in circumstances where he or she knows or has reasonable cause to suspect that the person intends to use it for purposes of travel or identification; or

(d)    Without lawful authority or reasonable excuse, takes or retains in his or her possession or under his or her control a New Zealand passport, certificate of identity, or emergency travel document against the will of the holder; or

(e)     Repealed.

(f)    Without reasonable excuse, has in his or her possession or under his or her control within New Zealand

(i) A passport issued by or on behalf of the Government of any country other than New Zealand, being a passport that he or she knows or has reason to suspect has been falsified or has been obtained by false representation; or

(ii) A document purporting to be a passport issued by or on behalf of the Government of any country other than New Zealand that he or she knows or has reason to suspect is not such a passport.

(2)    Every person commits a crime who intentionally defaces or destroys a New Zealand passport, certificate of identity, or emergency travel document.

(3)    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.

(4)    Every person who commits an offence against subsection (2) is liable on conviction on indictment to imprisonment for a term not exceeding 2 years.]

[14] The section was amended by the Passports Amendment Act 2002. The amending legislation created an extensive range of offences focused on New Zealand passports, including their use, acquisition, forging, falsifying, and alteration (ss 29A, 30 and 32). The legislation also substantially increased the penalty from a two year maximum term of imprisonment to the current ten years and added the maximum fine of $250,000.

[15] The specific offence relating to possession of a falsified or falsely obtained foreign passport created by s31(f) thus sits in the same provision, and is subject to the same penalty, as five other offences which, in broad terms, cover the improper use of New Zealand passports.

[16] The information to which the appellant pleaded guilty straddles uneasily both offences stipulated in ss(f). It alleges an offence against s31(1)(f)(i) specified as being :

District Court sentence

[17] Harvey DCJ in reaching the imposed sentence of 18 months adopted a start point of two years. He placed considerable emphasis on the need to deter offending of this type, particularly in the context of a world where national frontiers present no significant obstacle to organised crime and terrorism.

[20]    Of course the passport issue involves the integrity of international borders. It may well be that there has been a practice that has developed by those who choose to seek refugee status, to enter this country by dishonest means. The fact that their presence in this country is predicated upon a criminal act, is an extraordinary feature and one which seems to have gone unremarked and indeed is offered rather as a mitigating factor than an aggravating one. I consider it to be a significantly aggravating factor.

[21]    There was a time Mr Markevich and it was not so long ago, that it appeared that no longer would one need to be too concerned about international boundaries, the development of homogenous groupings of nation states such as the European Union with flexible controls over borders, and perhaps what one might describe as the disintegration of 1648 Westphalian concepts of Sovereignty have all been put to one side following the tragic events of the 11 September 2001.

[22]    That particular incident and subsequent incidents have demonstrated that the sanctity of international borders is something that has to be carefully maintained, carefully policed, and those who wish to assault the integrity of borders for whatever purpose, be it a refugee status, be it acts of terrorism or be it for any other dishonest or criminal activities, must know that there is no [sic] going to be any country whose borders will be soft, who will be spongy and where a soft result will follow where that integrity is compromised.

[23]    It is a matter of grave concern in the interests of international security that this type of activity takes place, and that you have so easily been able to obtain the documents that have enabled you to cross the border. For that reason I consider that denunciation of conduct and deterrence must be the principal features of this sentencing exercise.

Discussion

[19] Many historians, I suspect, might dispute the Judge's assessment of the 1648 Treaty of Westphalia as a significant marker in the development of the nation state and frontier controls. But that does not detract from the Judge's observations, particularly on criminal and terrorist acts, as a policy factor underlying s31. With those observations I agree.

[20] In the current world security climate courts have a clear obligation to impose deterrent sentences for the use of false passports to cross frontiers with fictitious identities. So too is deterrence legitimate to underpin New Zealand's immigration controls and discourage illegal entry by fraud and deception.

[21] Counsel for the respondent for his part invited this Court to set something in the nature of a tariff to guide District Courts in this area. In Mr Johnstone's submission deterrence was an important factor. If the New Zealand Courts declined to impose significant sentences then this country would become an even more attractive destination for bearers of false passports than it currently is.

[22] The level of a sentence is of some importance in this case. Two Ukrainian nationals O Bolotov and O Prodan, who arrived in Auckland on the same flight as the appellant, were sentenced to four months imprisonment each by Taumaunu DCJ in the Manukau District Court on 30 April 2004. A third Ukrainian, A Hushall, was sentenced by Singh DCJ to five months three weeks imprisonment in the same court on 27 April 2004.

[23] Counsel for the appellant submitted with considerable vigour that there was a marked disparity between those sentences and the 18 month sentence imposed in this case, which resulted in the appellant's sentence being inequitable, unjust, and excessive.

[24] The first two of those earlier sentences were specifically considered by Harvey DCJ. He clearly disagreed with them and did not consider them to represent "appropriate sentencing levels" for the purpose of s8(e) of the Sentencing Act 2002.

[25] The mischief of using false passports to cross international frontiers and the risks which such offending represents to the integrity of New Zealand's frontier, were clearly expressed by the responsible Minister who introduced the Bill which led to the Passports Amendment Act 2002 into Parliament (Transnational Organised Crime Bill) on 28 February 2002.

[26] A number of threads seem to have been woven into the amending legislation. These include the signature by New Zealand (14 December 2000) of the United Nations Convention Against Transnational Organized Crime and its two protocols against the smuggling of migrants and trafficking in persons. (New Zealand ratified the Convention on 19 July 2002).

[27] The UN Security Council Resolution 1373, another thread, was passed on 28 September 2001, 17 days after the terrorist attacks in Manhattan and Washington DC and decided that all the States should:

[28] This judgment need not examine New Zealand's relevant international law obligations in this area. Nor do I need to unravel the various threads and policy factors which led to the Transnational Organised Crime Bill. A brief mention suffices. For instance, Article 6 of the protocol against the smuggling of migrants (supplementing the UN Convention Against Transnational Organized Crime) requires States to criminalise the smuggling of migrants including (Article 6(1)(b)), the production, procuring, provision and possession of travel or identity documents. Yet Article 5 provides that migrants:

[29] The position of refugee claimants is another factor. The Minister emphasised that New Zealand's obligations under the 1951 Convention were not altered by the amending legislation. (Ibid 14756). There are clear tensions between Article 31(1) of the Refugee Convention, which prohibits States from imposing penalties "on account of their illegal entry or presence" of refugees, and New Zealand's domestic criminal law. (See generally Ghuman v Registrar of Auckland District Court (HC Auckland, 2003-404-4373, 16 December 2003, Baragwanath J); R v Uxbridge Magistrate's Court, ex parte Adimi, [2001] QB 667)).

[30] It is abundantly clear, however, that Parliament by the 2002 amending legislation increased five-fold the maximum penalty for s31 offences. It clearly did so against the background of the need to prevent the movement of terrorists or terrorist groups by the means set out in Resolution 2(g) of the UN Security Council Resolution 1373. But, as is clear from the Minister's remarks (supra paragraph [25]) it also resolved to increase the penalty as a matter of general policy.

[31] The same Transnational Organised Crime Bill 2002 led to the enactment of s98C(1) of the Crimes Act 1961 headed, "Smuggling migrants". The thread which led to that provision was the UN Convention Against Transnational Organized Crime and the smuggling of migrants protocol.

[32] In R v Chechelnitski (HC Auckland, CRI 2004-092-001239, 6 April 2004), Paterson J imposed a term of three and a half years imprisonment (adopting a five year start point with an offence carrying a maximum of 20 years) on the man who appears to have been the guide for the appellant and his Ukrainian co-nationals. He accompanied them to Auckland from Kiev via Bangkok and helped them with instructions. Mr Amery (who was also counsel in that case) informed me the sentence was subject to an appeal lodged by different counsel.

[33] Be that as it may, and noting also that the offence and maximum penalty differ, I adopt, with respect, Paterson J's general policy observations:

[11] In moving the Trans-National Organised Crime Bill 2002, which brought in this amendment to the Crimes Act, the Hon Mr Hawkins, Minister of Police, noted that it was aimed to counter the globalisation of crime. One significant aspect was "to target those people who profit from the smuggling and trafficking of people." Such smuggling and trafficking has become a lucrative international activity for organised crime. The Minister of Police noted that smuggling and trafficking of people into New Zealand was to be subject to severe penalties, and "the severity of the maximum penalty sends a clear message to those who might be involved in organising or transporting illegal immigrants to New Zealand that this country cannot be regarded as a soft target.". Evidently 50% of all illegal immigrants globally are assisted by smugglers.

...

[34] In addition to stressing the need for a deterrent sentence, Mr Johnstone submitted that the 18 month sentence imposed could not be classified as manifestly excessive.

[35] He referred me to Singh v Police (HC Auckland, AP 43/92, 6 March 1992, Barker J) where a two month sentence was considered appropriate for a Sikh who attempted to travel to Canada via Singapore with a false New Zealand passport. The maximum penalty and relevant policy considerations were different 12 years ago.

[36] I was also referred to the more recent High Court decision of William Young J, Lillandt v The Crown, (HC Chch, A69/01, 9 August 2001) which involved a scheme to obtain a false New Zealand passport to sell for financial gain. A 21 month sentence with leave to apply for home detention was considered appropriate.

[37] Mr Amery for the appellant, in addition to his disparity argument, submitted that a sentence of approximately nine months would have been appropriate, which, given time spent in custody on remand, would lead to the appellant's immediate release.

[38] It is apparent from the informations on the file that the charge relating to a false Israeli driver's licence laid under s228(a) of the Crimes Act also attracted an 18 month sentence. Counsel agreed that the Passports Act offence was the more serious, justifying the lead sentence, and that, although imposed concurrently, an 18 month sentence relating to a false foreign driver's licence was difficult to uphold in isolation.

Decision

[39] The sole issue before me is whether, from a stipulated two year start point, the 18 month sentence the Judge imposed is manifestly excessive.

[40] An assessment of the sentence must obviously involve a consideration of the relevant circumstances against ss7 and 8 Sentencing Act 2002 purposes and principles.

[41] There can be no quarrel with the aggravating and mitigating factors weighed by the Judge and indeed counsel do not attack these. Denunciation and deterrence are legitimate and potent factors with offending of this type. The significant increase in 2002 of the prescribed maximum penalty from two years to ten years reflects underlying parliamentary policy to which the courts must obviously give weight. The sentence, including its start point, must fit appropriately on the ten year continuum. (Section 8(d) Sentencing Act 2002).

[42] The following circumstances of the appellant's offending are important factors to weigh:

[43] Those circumstances (with the exception of the last), in my judgment justify the imposition of a significant penalty. The elaborateness of the deception, its premeditation, and the insidious threat which offending of this type presents to New Zealand's border security and immigration controls, clearly merit the Judge's stipulated start point of two years. Indeed, the brazenness of the offending and in particular its premeditated nature might have justified a higher start point of between two and three years. Had such a higher start point been deployed I would have expected slightly greater weight to be given to some mitigating factors.

[44] In my judgment Harvey DCJ was correct in his refusal to sentence in conformity with the much lower levels adopted in R v Prodan, R v Bolotov and R v Hushal (supra). The sentences imposed in those cases, as must be apparent from the policy considerations I have outlined in this judgment, were manifestly inadequate. With that perspective Mr Amery's submissions relating to sentencing parity must founder.

[45] For these reasons I do not consider the sentence imposed to be manifestly excessive. The lead sentence of 18 months, particularly having regard to the relevant circumstances of the offending, was appropriate.

[46] I do, however, consider the concurrent 18 month sentence imposed for the lesser Crimes Act offence to be excessive. Although no change of substance will result, I allow the appeal against that particular sentence and substitute a term of six months imprisonment, to be served concurrently with the 18 month term imposed for the Passports Act conviction.

[47] I do not consider it desirable to indicate a tariff for sentencing under s31 of the Passports Act 1992. I note that the same maximum sentence is stipulated for a number of offences which are qualitatively different (supra para [15]). I am also conscious that, on a case by case basis, the circumstances of the offending in the case under appeal (supra para [42]) will never be exactly replicated. Degrees of culpability will vary. So too will the personal circumstances of the offender and his or her motivation. The sophistication of the false passport may vary. The more sophisticated the falsification and the more elaborate the deception, the greater in my view the culpability and the need to deter.

[48] In general terms unremarkable offending under s31(1)(f) of the Passports Act 2002 motivated by a desire to enter New Zealand illegally, could justifiably attract sentences with start points ranging from fifteen months to three years. The relevant criteria of the Sentencing Act 2002 will obviously vary on a case by case basis as will the weighing exercise. Factors which might justify leniency would include an early confession of guilt; immediate or early abandonment of refugee claims which are false or manifestly unfounded; a willingness to provide cogent information leading to the detection of co-offenders and people smugglers; and an acceptance of and co-operation with a speedy return to the offender's country of origin. Those factors should not minimise the need for deterrence but could in appropriate cases temper it.

[49] Offenders who do not meet the above criteria; whose motivation is sinister or unexplained; or who deliberately and cynically endeavour to exploit New Zealand's comparatively liberal refugee determination procedures could well merit more severe treatment.

[50] These obiter observations are designed to assist District Courts faced with comparable offending under the Passports Act 2002. They fall well short, however, of stipulating a tariff.

Result

[51] The appeal against the 18 month sentence imposed in the Manukau District Court on 18 June 2004 in respect of the conviction under s32(1)(f) of the Passports Act 1992 is dismissed.

[52] The appeal against the concurrent 18 month term of imprisonment imposed at the same time in respect of the conviction under s228(a) of the Crimes Act 1961 is allowed. A six month sentence is substituted to be served concurrently with the confirmed 18 month sentence.

Solicitors for the appellant: C Amery (Auckland)
Solicitor for the respondent: Meredith Connell & Co (Auckland)