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High Court Cases
R v Zanzoul
High Court Auckland
CRI 2004-092-007694
4 August 2006; 4 August
2006
Winkelmann J
Article 31 -
penalties - illegal entry to New Zealand - use of false passport -
Article 31
Passport - offences
- sentence - possession of false passport - factors to be taken into
account - Passports Act 1992, s 31(1)(f)(ii)
Sentencing -
passport - offences - sentence - possession of false passport - factors
to be taken into account - Passports Act 1992, s 31(1)(f)(ii)
The prisoner, a citizen of
Syria, arrived in New Zealand in March 2004 travelling on a Syrian
passport. When spoken to by officials he handed over a false Australian
passport stating that he used that passport as he could not easily
travel on his Syrian passport. He made an unsuccessful application for
refugee status and at the time of sentencing was the subject of
proceedings before the Deportation Review Tribunal which would
determine whether he would be permitted to remain in New Zealand. A
pre-sentence report disclosed that he was married to an Australian
citizen whom he met when he travelled to Australia in 1994. He had
three children who were aged ten, eight and seven. In 2001 he applied
for residence in Australia after being in Australia unlawfully for some
time. After initial detention in Villawood he was released under bond
and accepted a proposal by the Australian authorities that he leave
Australia with his family and apply for residence from overseas. In
2001 he travelled to Syria with his family. His wife and two daughters
returned to Australia, allegedly fearing for their safety. He and his
son remained in Syria before coming to New Zealand where he intended to
meet with his wife and daughters.
After failing in his appeal to the Refugee Status Appeals Authority he
pleaded guilty to one charge, laid indictably, of having in his
possession a document purporting to be a passport issued by the
Government of Australia, contrary to s 31(1)(f)(ii) of the Passports
Act 1992. The maximum penalty for that offence upon conviction and
indictment is ten years imprisonment, a fine not exceeding $250,000, or
both.
Held:
1. A
starting point of two years imprisonment would be adopted. However the
prisoner was entitled to a significant discount in respect of the
guilty plea and also on account of the fact that he suffered from
clinical depression. The period of two years imprisonment would be
reduced by nine months, giving an effective term of imprisonment of
fifteen months with leave to apply for home detention (see paras [44]
& [47]).
Observations:
1. It is
common practice for passport charges to be withdrawn if refugee status
is granted. Therefore an accused seeking refugee status would be well
advised by counsel to withhold a plea on that basis. If the individual
is not recognised as a refugee and subsequently pleads guilty, the
individual is entitled to reduction in sentence (see para [41].
2. On the
material before the Court it was not satisfied that the refugee claim
was false or manifestly unfounded. The fact that the refugee claim was
ultimately not successful did not necessarily permit the inference that
the claim to refugee status was false or manifestly unfounded (see para
[43]).
Markevich v R (2004) 21 CRNZ 41
(Priestley J) distinguished.
3. A
sentence of community service is not an appropriate response to
offending of this nature, particularly having regard to the need for
deterrence in sentencing (see para [43]).
Result - prisoner
sentenced to a term of imprisonment of fifteen months with leave to
apply for home detention
Other cases
mentioned
in judgment:
R v Ahlquist [1989] 2 NZLR 177
(CA)
R v Webber
(1998) 16 CRNZ 252 (CA)
R v Zhang (CA56/05, 24
May 2005)
Counsel
MR Harborow for the
Crown
AJ Trenwith for
the prisoner
[Editorial note: On 6 December 2006
an appeal to the Court of Appeal was dismissed. See R v Zanzoul
(CA297/06 (6 December 2006)). 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). Both judgments are available on the Case Search page of this
website.]
WINKELMANN J
Offence
[1] Mr Zanzoul, you have
pleaded guilty and appear for sentence on one charge, laid indictably,
of having in your possession a document purporting to be a passport
issued by the Government of Australia, contrary to s 31(1)(f) (ii) of
the Passports Act 1992. The maximum penalty for that offence upon
conviction on indictment is 10 years imprisonment, a fine not exceeding
$250,000, or both.
Background
[2] You arrived in New
Zealand in March 2004 on a flight from Bangkok. You were travelling on
a Syrian passport. You were spoken to at Customs and referred to New
Zealand Immigration Services. When spoken to, you handed over a
false Australian passport. When spoken to by the Police you
stated that you used the Australian passport as you could not easily
travel on your Syrian one.
[3] After arriving in New
Zealand, you made an application for refugee status. That was declined.
An appeal to the Refugee Status Appeals Authority was also
unsuccessful. It was at this point that you entered your guilty
plea. At present you are the subject of proceedings before the
Deportation Review Authority which is considering whether you may,
regardless of your refugee status, be permitted to stay in this
country.
[4] Following your guilty plea,
various remands were sought, firstly for the purposes of obtaining a
psychological assessment and secondly so that some jurisdictional
issues that you have heard us talk about today could be sorted out
before the Court.
[5] The psychological
assessment was requested because you have been suffering from
significant depression stemming from your separation from your family
and unsuccessful application for refugee status.
[6] Sentencing was due to take
place in the District Court on 19 July 2006. A jurisdictional issue was
raised by your counsel at that time, namely the maximum penalty
available in respect of the offending under the Passports Act said to
arise because you had pleaded guilty pursuant to s 153A of the Summary
Proceedings Act. The District Court Judge concluded that if the
District Court were to proceed to sentence you, you would be summarily
convicted and therefore the penalties in s 31(3) of the Passports Act,
which are expressed to apply only in respect of conviction on
indictment, would not apply. The District Court Judge decided to commit
you to this Court for sentence so that s 31(3) could have its full
effect.
Pre sentence report
[7] I have had made
available to me a pre-sentence report. That was issued in January 2006,
but there is no indication on the file that your circumstances have
changed since the issuing of that report. The report tells me that you
were born in Syria and you are 41 years old. You say that your father
and eight siblings remain there and that you fear for their safety
because you have travelled outside of Syria. Your mother died in August
2005.
[8] You are married to an
Australian citizen, whom you met when you travelled to Australia on a
visitor’s permit in 1994. You have three children, who at the time the
report was written were aged 10, eight and seven. In 2001 you
applied for residency in Australia. It seems that you had been in
Australia unlawfully for some time at that stage. You were detained in
a detention centre in Villawood before being released under bond. You
accepted a proposal by Australian authorities that you leave the
country with your family and for you and your family to apply for
residency from overseas.
[9] In 2001 you travelled to
Syria with your family. You report that upon arrival in Syria you were
locked up, interrogated and tortured. Your wife and two daughters
returned back to Australia, fearing for their safety. You and your son
remained in Syria before coming to New Zealand, where you intended to
meet with your wife and daughters. Since your initial arrest your wife
has cared for all three children.
[10] As a result of the
uncertainty of your refugee status and difficult circumstances, you
were referred to Mental Health Services to manage on-going depression.
The pre-sentence report, citing a report from a consultant
psychiatrist, notes that you were assessed has having a high risk of
suicide should you lose access to your children through deportation.
[11] You have engaged in short
term casual employment through friends in the Islamic community and you
say that they have provided emotional and financial support for you
during this difficult time. I see from having read the file that there
are many letters of support of you from members of that community.
Offending
[12] You accept the
offending, but you deny ever telling Customs that you travelled on an
Australian passport because it was easier to do so than on a Syrian
passport. You say that you obtained the false passport with the
intention of immediately seeking refugee status upon arrival and that
you paid US$500 for the passport and that your offending was driven by
fears for your safety.
Previous convictions
[13] There are no
previous convictions in New Zealand in relation to criminal and traffic
history.
Submissions
[14] As to what counsel
have said to me today and in their written submissions, in terms of
sentence, while the Crown does not contest the summary of facts, it
draws attention to the fact that between 2001 and 2004 you entered and
exited Syria a number of times, which it submits casts doubt on the
veracity of your account of political persecution.
[15] The Crown refers generally
to recent High Court authorities in which the Court has emphasised the
strong need for denunciation and deterrence in the context of passport
offending and immigration matters, especially in the current global
security environment. The Crown also draws attention to the change in
maximum penalty for the present offence, which is indicative of
Parliament’s strict policy. It recognises there is no tariff
judgment but refers to Markevich v R
(2004) 21 CRNZ 41, Priestley J, as being of assistance and you have
heard counsel talk to me about that case today.
[16] In respect of the present
offending, the Crown emphasises that it involved a high level of
premeditation; that the offending was sophisticated (it says you had
two passports with you when you entered the country, which it says is
indicative of an elaborate plan), and that offending of this nature
promotes a market for forged travel documents. The Crown seeks a
starting point of approximately 2–3 years imprisonment.
[17] In relation to you, the
Crown submits that I can take into account as an aggravating feature
that you had a history of dishonesty in your dealings with Australian
immigration authorities. I say now that I do not take that into
account. It is based on material in the pre-sentence report and
although from the factual account it seems likely that you were in
Australia illegally for some time, that in itself is not evidence of
dishonesty in your dealings, and I am prepared to give you the benefit
of the doubt for sentencing purposes.
[18] While the Crown accepts
that recognition must be given for your guilty plea, it submits that no
weight should be given to your personal, family, community and cultural
background. It contends that hard time away from your family in
difficult circumstances is not a mitigating factor. This is on the
basis that it is often the case with such offending that offenders will
be foreign nationals separated from their families. The Crown refers me
to some cases which say that offenders should not be dealt with
differently by the Courts depending upon whether or not they will be
away from their family during a sentence of imprisonment. (R v Ahlquist [1989] 2 NZLR 177
(CA); R v Zhang CA56/05, 24
May 2005).
[19] The Crown submits that a
final sentence of 15 months to 2 years imprisonment is appropriate. It
opposes leave to apply for home detention. It argues that there is a
real need for a deterrent sentence and granting leave is said to be
inconsistent with this. Further, the particular nature of the offending
in this case to obtain unlawful entry into New Zealand (use of a false
passport) is said to make such a sentence inappropriate. In the Crown’s
written submissions it referred to risk of flight, but before me today
Mr Harborow does not place any weight on that submission because as he
acknowledges, you have been on bail in the community for some time and
you have abided by conditions attaching to bail.
Submissions for Mr Zanzoul
[20] Mr Trenwith has
submitted that the Markevich
case does not assist this Court because the Judge there did not
consider the significance of s 38 of the Passports Act and even if that
is not correct, he says it is distinguishable because the Judge in that
case clearly took the view that there was deliberate and quite
sophisticated deceit, whereas in this case you were honestly attempting
to avoid persecution. He also submits that it is therefore
understandable that you withheld your guilty plea for as long as
possible, because you were pursuing a claim for refugee status. In
those circumstances it is common, if refugee status is allowed, for the
Crown to withdraw such charges.
[21] Mr Trenwith submits that a
distinction needs to be drawn between cases where there was a
calculated attempt to deceive border authorities and those where a
person is genuinely attempting to achieve personal safety. In that
latter category Mr Trenwith says that considerations of deterrence are
a less potent consideration. He submits that a sentence of community
work is appropriate. He refers to the fact that you are a skilled
tradesman and would be willing to engage in meaningful work in the
community.
[22] If a custodial sentence is
imposed, Mr Trenwith asks that you be granted leave to apply for home
detention and seeks a deferment of your sentence while that application
is processed.
Jurisdictional issues
[23] Before I proceed to
sentence you, as I made clear during discussions, I intend to address
the jurisdictional points raised by the District Court Judge, because
these are relevant to some of the matters relied upon by your counsel.
[24] In the District Court Mr
Trenwith argued that the powers of the District Court to sentence a
person who has pleaded guilty pursuant to s 153A of the Summary
Proceedings Act are restricted to the penalties provided in s 38(1) of
the Passports Act 1992
(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.
[25] Mr Trenwith’s argument before
the District Court focused on s 38(1)(b). He submitted that the plea of
guilty pursuant to s 153A of the Summary Proceedings Act to the charge
under s 31 of the Passports Act could only be entered as a summary
conviction. He argued that in taking the plea, the Court would be
exercising summary jurisdiction and proceeding in a summary way.
Therefore, the limits set out in s 38 of the Passports Act would apply
as to penalty.
[26] In response, Mr Harborow
for the Crown submitted that a guilty plea under s 153A to an
indictably laid information does not transform the proceeding to one
which is taken in a summary way so as to engage s 38(1)(b). The Crown
drew a distinction between how the proceedings are commenced and how
the proceedings are disposed of, which distinction is recognised in
cases such as R v McLeod
[1988] 2 NZLR 65, a case also referred to by the District Court Judge.
The Crown submitted that the phrase “taken in a summary way” in s
38(1)(b) refers to how proceedings are commenced, whether summarily or
indictably and reflects the discretion of the prosecuting authority to
proceed in the manner it sees fit.
[27] With respect to s 38(1)(a)
Mr Harborow submitted before the District Court that a penalty is
provided elsewhere than in s 38, citing s 7 of the Summary Proceedings
Act.
[28] The District Court Judge
agreed with the Crown that s 38(1)(b) had not been triggered and
accepted the Crown’s argument on that point. The Judge was satisfied
that there was no penalty provided elsewhere in the Passport Act than
in s 38 for a summary conviction for the offence and therefore s
38(1)(a) applied.
[29] The issue that now arises
is whether s 38(1)(a) of the Passports Act 1992 has been triggered, and
that turns upon whether there is a penalty provided elsewhere than in s
38 of the Passports Act for a summary conviction of an offence under s
31 of the Passports Act.
[30] I am satisfied that Judge
Blackie’s analysis of the application of s 38(1)(b) was correct. The
reasons given being in essence those set out above when describing the
Crown’s argument on the point.
[31] However, as to the
application of s 38(1)(a) I am satisfied that Judge Blackie fell into
error. There is no wording in s 38(1)(a) that suggests that the
remedies must only be provided within the Passports Act. Section 7(1)
of the Summary Proceedings Act is therefore relevant. It provides:
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.
[32] Section 6 sets out the
offences in respect of which s 7 applies, and it provides in s 6(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 the
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.
[33] An offence under s 31(1) is
included in Schedule 1 of the Summary Proceedings Act. Taken together,
these provisions make clear that a District Court Judge has
jurisdiction to deal with an offence under s 31(1) of the Passports Act
1982 summarily. Should the Judge decide to do so, then he or she
is restricted by a maximum penalty of 5 years imprisonment, or to a
fine not exceeding $10,000, or to both.
[34] As Mr Harborow submits, s
38(1)(a) is not triggered. Section 38(1)(a) is, as submitted by the
Crown, directed to those provisions of the Passports Act that are
completely silent on the maximum penalty applicable and not included in
Schedule 1 to the Summary Proceedings Act. Examples include 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 demands of officers.
These offences are clearly minor offences to which a maximum penalty of
3 months imprisonment appears appropriate.
[35] This interpretation is
also suggested by the authors of Laws of New Zealand, (Citizenship and
Nationality) at [87]) and is consistent with the comments of the Court
of Appeal in R v Webber
(1998) 16 CRNZ 252, 257-258 as to the effect of a summary conviction in
respect of a charge laid indictably.
Sentencing principles
[36] I consider that in
sentencing you I must have regard to the need to denounce your conduct
but particularly to deter you and others from committing the same or a
similar offence. Deterrence has been accepted by both counsel as the
primary consideration.
[37] I take into the account
the gravity of the offending and your culpability and the seriousness
of the type of offence in comparison with other offences. The maximum
penalty for this offence signifies that it is regarded by our society
as serious offending. Proper control of our borders is a fundamental
requirement for a secure and safe nation.
[38] I also must take into
account the general desirability of consistency in sentencing, and that
is why you have heard counsel refer me to some cases today. I also must
impose the least restrictive outcome that is appropriate in the
circumstances and therefore I have to consider whether a sentence of
imprisonment is appropriate and also if that is imposed, whether I
should grant leave to you to apply for home detention.
[39] Finally, I have to take
into account your particular circumstances if they mean that a way of
dealing with you as an offender, which would otherwise be appropriate,
would in the particular circumstances be disproportionately severe.
Aggravating and mitigating factors
[40] In terms of the
gravity of the offending, I do not accept the Crown’s submission that
there are any aggravating factors relevant to the offending that are
not already inherent in the nature of the charge. I am not persuaded by
the Crown that this is particularly premeditated offending, and of
course a degree of premeditation will be inevitable in such offending.
Nor am I persuaded that the possession of two passports is particularly
indicative of sophistication. While your offending may support the
trade in illegal documents, that is already accounted for in the
maximum penalty.
[41] In terms of mitigating
factors, there is your guilty plea. The Crown submits that you
persisted with refugee proceedings and delayed your guilty plea and
that the lateness of your guilty plea means that the discount in
respect of that should be slight. However, it is not disputed by the
Crown that it is common practice for charges to be withdrawn if refugee
status is granted. Therefore an accused seeking refugee status would be
well advised by counsel to withhold a plea on that basis. I am
satisfied that you are entitled to reduction in sentence in light of
the guilty plea.
[42] I also accept that your
mental health is a mitigating factor that will make a sentence of
imprisonment a more severe punishment than it might otherwise be. As to
separation from your family and the circumstances under which you say
you left Syria, I accept the Crown submission that with offending such
as this, the fact that you will be away from home for some time and
that you will be serving any term of imprisonment in a country which is
culturally distant from what you are familiar with and that you will be
away from your family is not a mitigating factor.
[43] Counsel referred me to Markevich. That case involved a
level of sophistication which is not apparent in this case. While
I do not propose to go through the facts, I am satisfied that the level
of offending there was more serious than in this case. In Markevich the Judge was of the
view that the application for refugee status was not legitimately
brought, that the offender played “the refugee claim card.” I am not
satisfied on the material before me that your refugee claim is false or
manifestly unfounded. That is not a necessary inference to be
taken from the fact that it was ultimately not successful. Priestley J
considered the facts in Markevich
could have attracted a starting point in the range of 2-3 years. On the
evidence in respect of you, I consider that your offending is less
serious than Markevich.
However, I also consider that a sentence of community service is simply
not an appropriate response to offending of this nature, particularly
having regard to the need for deterrence in sentencing.
Result
[44] I therefore adopt a
starting point of two years imprisonment. I consider that you are
entitled to a significant discount from that in respect of your guilty
plea and also on account of the fact that you suffer from clinical
depression. I therefore reduce that by a period of nine months, giving
an effective term of imprisonment 15 months.
Home detention
[45] Having imposed a
term of imprisonment of two years or less, I must then consider whether
it is appropriate to grant you leave to apply for home detention.
Because this offending pre-dated the amendment to the Sentencing Act,
the pre-amendment s 97(3) applied. That provides:
(3) The
court must grant the offender leave to apply to the New Zealand Parole
Board under section 33 of the Parole Act 2002 for home detention unless
the court is satisfied that it would be inappropriate to grant leave
taking into account
(a)
the nature and seriousness of the offence; and
(b)
the circumstances and background of the offender; and
(c)
any relevant matters in the victim impact statement in the case; and
(d)
any other factor that the court considers relevant.
[46] The Crown submits that it
is not appropriate that you be granted leave to apply for home
detention because this is inconsistent with the need for deterrence in
offending of a serious nature such as this. However, I am satisfied
that deterrence is still achieved by a sentence of imprisonment for 15
months with leave to apply for home detention.
[47] I am not satisfied that
there is any demonstrable risk of flight in respect of you, such that I
should decline leave. You have been on bail and have not absconded for
almost two years. In those circumstances I am satisfied that it is
appropriate to grant you leave.
[48] The next issue is whether
I should defer the commencement of your sentence of imprisonment. I may
do so for a specified period of up to two months on humanitarian
grounds, or if satisfied that there are special reasons such as
retention of employment why the sentence should not commence
immediately.
[49] Your counsel has submitted
that the special reasons for deferring commencement of the sentence of
imprisonment are your depressed state, your difficult background and
your family situation which he says all satisfy the special reasons
test for deferment more than adequately.
[50] However, from the material
in the pre-sentence report it seems that you have received assistance
for your mental health and prison authorities are able to continue to
provide such medication as necessary. Imprisonment is necessarily
a dislocating experience for all who are subject to it, involving
separation from family and community. In these circumstances I am
not satisfied that there are special reasons for deferment.
Accordingly, the application for deferment of the commencement of the
period of imprisonment is declined.
[51] Mr Zanzoul please stand.
You are sentenced to a term of imprisonment of 15 months, with leave to
apply for home detention. Stand down.
Solicitors
for the
plaintiff: Crown Solicitor (Auckland)
Solicitors for the
defendants: Anthony Trenwith,
Barrister
(Auckland)