Claudius v Ministry of Business, Innovation and Employment
[2016] NZHC 2586
•28 October 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2016-409-85 [2016] NZHC 2586
BETWEEN RAYMOND CLAUDIUS
Appellant
AND
MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent
Hearing: 27 September and 19 October 2016 Counsel:
A M S Williams and S Teki-Clark for Appellant
N A Pointer for RespondentJudgment:
28 October 2016
JUDGMENT OF HEATH J
This judgment was delivered by me on 28 October 2016 at 4.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Public Defence Service, Christchurch
Crown Solicitor’s Office, Christchurch
CLAUDIUS v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2016] NZHC 2586 [28
October 2016]
Introduction
[1] Mr Claudius appeals against a sentence imposed by Judge Gilbert, in the District Court at Christchurch, on 22 July 2016.1 Mr Claudius had pleaded guilty to two charges under the Immigration Act 1987 and one under the Immigration Act
2009.2 Judge Gilbert imposed a sentence of two years and six months’
imprisonment.
[2] The appeal came before me on 27 September 2016. On that day, another point assumed prominence. That was whether the sentence imposed remained appropriate. This issue arose because, on the morning of the appeal hearing, Mr Claudius was undergoing heart surgery. It was necessary to obtain further evidence about his likely prognosis and the post-operative care he would require to recover. A second aspect of further evidence concerned the question whether home detention was a suitable alternative, if the end sentence were otherwise to be reduced to one of two years imprisonment, or less.
[3] I gave leave for further evidence to be provided to the Court,3 along with memoranda from counsel. They were provided. On 19 October 2016, a telephone conference took place at which I heard further from counsel. At that time, I was advised that the parties were content for me to deal with the appeal based on the oral argument advanced at the 27 September 2016 hearing and the additional materials filed before the 19 October 2016 telephone conference. Judgment was reserved following that conference.
Background
[4] Mr Claudius is currently 52 years old. He is a Fijian National who entered New Zealand on 10 August 2005. At that time, he held a permit which allowed him to work as a builder.
[5] In September 2007, Mr Claudius sought, and was granted, New Zealand
residence under the “Skilled Migrant” category. A permanent residence visa was
1 Ministry of Business, Innovation and Employment v Claudius [2016] NZDC 13801.
2 See paras [14] and [15] below.
3 Criminal Procedure Act 2011, s 334(3).
granted in July 2011. At that time, Mr Claudius lived and worked as a builder in
Wellington. In late 2014, he moved to Christchurch.
[6] In September 2011, Immigration New Zealand learnt, through anonymous information supplied in the first instance to Fijian authorities, of an earlier decision of the (Australian) Migration Review Tribunal which cast doubt on information previously disclosed to immigration authorities in New Zealand.
[7] In summary, the new information revealed:
(a) Mr Claudius’ given name was “Bal Krishna”.
(b)Mr Claudius’ parents moved to Australia while he was young. He was raised by relatives in Fiji. His father is known by Australian authorities as “Alfred Claudius”. He still lives in Australia.
(c) In 1981, Mr Claudius, under the name of “Bal Krishna”, travelled from Fiji to Australia. He was deported in January 1984. In September 1985, he attempted to re-enter Australia using a Fijian passport under the name of “Ramlu Bala”. He was declined entry and returned to Fiji. On his return Mr Claudius was prosecuted in Fiji and found guilty on a charge involving passport fraud.
(d)In 1986, in Fiji, under the name of “Bal Krishna”, Mr Claudius was convicted on two charges of obtaining credit by false pretences and two of larceny. He was also ordered to forfeit a bail bond.
(e) In 1998, while still in Fiji, Mr Claudius changed his name by Deed Poll to Raymond Claudius. Under that name, between June 2005 and July 2011, he made four separate applications to immigration New Zealand in relation to requests for work visas, residency under the skilled migrant category and permanent residence. Mr Claudius did not disclose his previous identity as “Bal Krishna”. Nor did he
disclose the criminal convictions entered against him in Fiji under his birth name.
[8] When interviewed about these revelations, Mr Claudius admitted the facts as outlined. He made it clear that he wished to put his past behind him. He knew that if he had disclosed his background he was unlikely to have been allowed to stay in New Zealand.
[9] Mr Claudius has a wife who accompanied him when he travelled to New Zealand. Initially, while Mr Claudius worked as a building supervisor in the Christchurch residential rebuild, his wife remained in Wellington. Subsequently, they reunited. Up to the point at which he was sentenced, they lived together in a flat in Christchurch. On appeal, a psychiatric assessment of his wife has been made available. She is said to have been so shocked by her husband’s incarceration, she was referred for psychiatric assessment immediately after the sentencing hearing. An updating report from a registered psycho-therapist dated 16 September 2016 has also been prepared.
New evidence
[10] A number of medical reports were before the sentencing Judge. The additional information provides assistance on what health concerns exist post- sentence. It is clear that Mr Claudius’ health has deteriorated whilst in custody.
[11] I have received a report from a cardiologist, Mr Lainchbury. He has supervised the care of Mr Claudius while he has been in Christchurch Hospital in relation to the heart surgery. Mr Lainchbury chronicles a number of difficulties under which Mr Claudius has laboured since first undergoing bypass surgery for severe coronary artery disease in 2008.
[12] On 24 September, while in custody, Mr Claudius was admitted to hospital with chest pains. Following a coronary angiogram, it was discovered that he was suffering from what Mr Lainchbury describes as a “severe narrowing on his native coronary disease”, as a result of which it was likely that he was suffering “ongoing
chest pain from a reduction in blood flow down one of his coronary arteries that has
not previously grafted and has significantly narrowed”.
[13] At the time that Mr Lainchbury prepared his report, Mr Claudius remained in
Christchurch Hospital. Mr Lainchbury reported:
Mr Claudius is on appropriate medication. He will require a further visit to the hospital for the myocardial perfusion scan, then a follow up visit to discuss the results of this test and his current clinical situation once the perfusion scan has been reported. If he then requires further intervention with another cardiac catheter test and possible stenting to the coronary artery, this will require a further admission to hospital. Given the way his symptoms have behaved, it is likely he will continue to have ongoing symptoms in the meantime.
It would be hoped that Mr Claudius’ longer term prognosis is still quite good but clearly he needs ongoing care and assessment which will involve a number of visits to the hospital and likely at least one further planned hospital admission and possibly further admissions if symptoms are particularly troublesome.
As it is likely that, certainly in the interim Mr Claudius will continue to have troublesome symptoms and has a plan in place for further cardiological assessment and possible treatment, he requires close care and supervision which would be best provided in his home environment with family input.
(Emphasis added)
The charges
[14] Mr Claudius pleaded guilty to three charges. Two were brought under the Immigration Act 1987, in respect of events that occurred in the periods between 26 and 30 May 2007 and 28 August and 15 September 2007 respectively. Both concerned the supply of false or misleading information to an immigration officer. The single charge under the Immigration Act 2009 arose out of an application for permanent residence made on or about 15 July 2011.
[15] The charges were brought under s 142(1)(c) of the Immigration Act 1987 and s 342(1)(b) of the Immigration Act 2009. Both carry a maximum term of imprisonment of seven years. Relevantly, they provide:
142 Offences
(1) Every person commits an offence against this Act who—
…
(c) without reasonable excuse, produces or surrenders any document or supplies any information to an immigration officer or visa officer or refugee status officer knowing that it is false or misleading in any material respect; or
….
342 Provision of false or misleading information
(1) Every person commits an offence against this Act who—
…
(b) produces or surrenders any document or supplies any information to an immigration officer or a refugee and protection officer knowing that it is false or misleading in any material respect; or
….
[16] The two charges involving events in 2007 were directed at false information provided by Mr Claudius in two documents; namely, an “Application to Work in New Zealand” and a “Skilled Migrant Application for Residence”, both in his name. The charge brought under the 2009 Act concerned false information provided in a “Permanent Residence Application” made by Mr Claudius on or about 15 July 2011.
[17] The aim of both s 142(1)(c) of the 1987 Act and s 342(1)(a) of the 2009 Act is to criminalise conduct by a person wishing to enter or remain in New Zealand when an application for official permission to do so is knowingly made on the basis of false or misleading information of a material nature. The seriousness with which offending of this type is treated is evident from the maximum penalty of seven years’ imprisonment that can be imposed.
[18] Since, at least, the terrorist attacks in New York in September 2001, the need to safeguard the border has assumed particular importance. The maximum penalty for offending of this type was increased to seven years’ imprisonment from 18 June
2002, by s 16 of the Immigration Amendment Act 2002. Previously, the maximum
penalty had been three months’ imprisonment.4
[19] The seriousness of offending of this type can also be seen from the way in which the purpose of the 2009 Act is expressed. Section 3(1) of that Act states:
3 Purpose
(1) The purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals.
….
[20] In addition, I make the point that the integrity of the immigration system is, at least in the first instance, dependent upon the honest disclosure of material information from those who seek entry into this country, or the right to remain here.
Sentencing in the District Court
[21] After reciting the relevant background facts, Judge Gilbert expressed his view that the primary sentencing goals were denunciation and deterrence. The Judge was particularly concerned with the integrity of New Zealand’s immigration system and considered that deterrent sentences were required for those who entered New Zealand on the basis of false representations.
[22] Judge Gilbert said:
[24] Mr Teki-Clark in written submissions [on behalf of Mr Claudius] suggested that a starting point in the range of two years to two years and three months is appropriate in your case. Ms Milne for the prosecution submitted in her written material that a starting point in the range of two years, six months to two years, nine months is appropriate. But in her oral submissions today she says that in light of all of the information that we now know about you, a starting point in the range of three to three and a half years could be justified.
[25] In setting the starting point I need to consider aggravating and mitigating features of the offending. In my view, there are a number of aggravating features. First, there is the nature and duration over which the offending occurred. There were a number of instances of dishonesty over a number of years. The level of dishonesty was high in that it encompassed
4 Generally, see R v Sabuncuoglu [2008] NZCA 448, at paras [8] and [32].
your entire identity along with false statements as to your prior conviction history and your deportation history.
[26] Next, and related in a sense, there is the fact that the offending occurred once you had already been deported from New Zealand in circumstances where you had immigrated here illegally. That sits on top of your prior deportation from Australia.
[27] Finally, and again this is related in some way to what I have already mentioned, there is the extremely high level of premeditation. You have spent a good part of your life trying to defeat the immigration requirements of Australia and more latterly, New Zealand.
[28] In my opinion, there is nothing at all mitigating your actual offending. Overall, I consider that this offending, set against your personal background, is a very serious instance of immigration fraud.
[29] I have carefully considered the cases referred to me in submissions. No two cases are exactly alike and I have to set a starting point based on my assessment of overall culpability which, as I have said, I think is high in your case. In my view, a starting point in this case of at least three years’ imprisonment is appropriate. In setting that starting point I have taken into account your past dishonest course of conduct in relation to immigration officials. I make that clear so that you realise that I am not double counting that aspect of your circumstances later on. To my mind your history of on- going and premeditated attempts to defraud the immigration system is a stand out feature of your case.
[23] The sentencing Judge considered that an uplift was required to reflect a number of convictions in New Zealand that had been entered within the previous five years. They involved driving with an excess blood alcohol concentration, intimidation and theft. A “modest uplift” of two months imprisonment was applied. The Judge declined to give any credit for prior good character.
[24] Judge Gilbert regarded the offending as “a very serious instance of immigration fraud”.5 Having regard to aggravating factors relating to the offence, he took a starting point of three years imprisonment. The Judge included within that assessment what he termed as Mr Claudius’ “history of on-going and premeditated attempts to defraud the immigration system”.6 An uplift of two months imprisonment was applied to reflect the prior offending.
[25] In addressing personal mitigating circumstances, the Judge turned to consider those based on health. He said:7
[34] I bear in mind your health related issues. It has not escaped me that by virtue of your unlawful existence here in New Zealand you have in the past drawn upon our social welfare system (which incidentally you admitted in 1989 was by way of fraud), you have also drawn upon our publicly funded health system, against something permitted by virtue of your fraudulent entry to New Zealand. Indeed Mr Claudius, it is features like those – a solid social welfare system and an excellent public health system – which makes immigration here into New Zealand such a prized commodity.
[35] Whilst I accept that you have legitimate health issues you are only
51 and are in sufficiently good health to work full-time as a builder in the construction industry. You were also assessed as being capable of undertaking community work. The reality is that a great many people appearing before the Courts for sentence have all manner of physical and mental health problems so in that respect you are no different. The correctional system is also able to deal with people like you who have specific health requirements.
[26] The Judge applied a credit of 20 percent for a guilty plea that was not entered at the first available opportunity. Applying that credit, the Judge imposed an end sentence of two years and six months imprisonment. The Judge indicated that, even if home detention had been an available option, he would not have imposed it
because of the need for a sentence of imprisonment to mark the offending.8
Competing submissions
[27] At the 27 September hearing, Mr Williams submitted that the sentence imposed was manifestly excessive because:
(a) The District Court Judge adopted a starting point that was too high.
That error is said to be based on an incorrect assessment of the gravity of the offending.
(b)The sentence is excessive when compared with sentences imposed in like cases.
(c) Insufficient credit was given for Mr Claudius’ current health
condition.
[28] After receipt of the additional evidence to which I have referred,9 Mr Williams submitted that the credit for health related factors should be increased significantly. He invited me, if the end sentence reached were one of two years or less, to commute the term of imprisonment to home detention. On present evidence, Mr Williams submitted that was now the most appropriate sentence.
[29] Ms Pointer, for the prosecutor, supported the sentence imposed in the District Court, for the reasons given by the Judge. While, in light of the additional information, Ms Pointer abided the Court’s decision on whether home detention was a more appropriate sentence, she submitted that the Court should confirm that the sentence imposed by the Judge, without the benefit of that information, was within range. Plainly, in enforcing the provisions of the immigration legislation, that is an important consideration from the prosecutor’s perspective.
Analysis
[30] The powers of this Court on a first appeal against sentence are set out in s 250 of the Criminal Procedure Act 2011. Section 250(2) states that the “Court must allow the appeal if for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed”. For there to be error, it must be established that the sentence was manifestly excessive or inappropriate. It is the end sentence that is under consideration, not the methodology by which it is
reached.10
[31] In my view, given the nature of the offending, Judge Gilbert was right to focus on the sentencing goals of denunciation and deterrence. Reflecting the policy points to which I have referred, the sentencing Judge said:11
[22] … It is clear that in sentencing you today the primary purposes are
denunciation and deterrence. Immigration into New Zealand is a precious
9 See para [10]–[13] above.
10 Tutakangahau v R [2014] 3 NZLR 482(CA) at para [36].
commodity and as the Courts have made clear in a number of cases, the integrity of the country’s immigration system is vital to its integrity as a state in deciding who may live within its borders. Those who dishonestly challenge the immigration system can expect deterrent sentences and in usual circumstances can expect to be sent to prison.
[32] I have already set out the aggravating and mitigating factors relating to the offending to which Judge Gilbert referred. The Judge considered there were no mitigating factors, other than the guilty pleas.
[33] No separate credit was given for remorse. A credit of 20 percent was given in respect of the guilty pleas, which were not entered at the earliest available time.12
Rounding that credit to one of six months, the Judge reached an end sentence of two years and six months imprisonment. He did not consider that home detention was an available option. Rather, he took the view that imprisonment was necessary to mark the offending.
[34] In Khan v Ministry of Business, Innovation and Employment,13 Andrews J embarked upon a helpful survey of a number of sentencing decisions in respect of similar immigration offences involving dishonesty.14 For the purposes of establishing a general principle, the Court of Appeal’s judgment in R v Sabuncuoglu15 assumes primary importance.
[35] Mr Sabuncuoglu had pleaded guilty to three charges of knowingly supplying false information to an immigration officer under s 142(1)(c) of the 1987 Act and using two other documents with intent to defraud, under s 229A of the Crimes Act
1961. He was sentenced to an effective term of imprisonment of two years.16 Mr
Sauncuoglu appealed on the grounds that the end sentence was manifestly excessive.
12 Ibid, at paras [36]–[38]. The Judge appears to have applied correctly the Supreme Court’s
decision in Hessell v R [2011] 1 NZLR 607 (SC).
13 Khan v Ministry of Business, Innovation and Employment [2014] NZHC 2947.
14 The authorities to which the Judge referred included Pitts v Department of Labour HC Christchurch CRI-2011-409-104, 16 November 2011, Ismail v R [2011] NZCA 444, R v Sabuncuoglu [2008] NZCA 448 and Lee v Department of Labour HC Auckland CRI-2007-404-
126, 9 July 2007.
15 R v Sabuncuoglu [2008] NZCA 448.
16 Ibid, at para [6] and [7].
[36] Mr Sabuncuoglu was a citizen of both Turkey and Iraq. He held a Turkish
passport. Mr Sabuncuoglu received a visitor’s visa to enter New Zealand on 4 April
2001. He arrived on 16 April 2016 with the intention of staying in New Zealand indefinitely. Subsequently, Mr Sabuncuoglu disposed of his Turkish passport and passed himself off as a refugee from a different country, using a false name and identity to do so. In applications to work in New Zealand, he failed to declare his real name and the fact that he held Turkish citizenship. In the District Court, a starting point for the offending of two years’ and nine months’ imprisonment was taken. The Court of Appeal expressly observed that it was “well within the range
available” to the sentencing Judge.17
[37] It is unnecessary to review Khan, or the other decisions to which Andrews J referred in that case. The seriousness with which offending involving the deliberate provision to immigration officers of false or misleading information of a material character is well accepted and provides a sound basis on which to base a sentence.
[38] Having regard to the comparator cases and the general remarks made by the Court of Appeal in Sabuncuoglu, a starting point of three years’ imprisonment for the offending in which Mr Claudius was involved, while stern, was within range.
[39] I take into account the following features of the offending in reaching that conclusion:
(a) Mr Claudius knew that he was unlikely to be allowed to enter New Zealand or to remain here if he made truthful disclosures of his background.18
(b)Between June 2005 and July 2011, Mr Claudius made four separate applications to Immigration New Zealand in which he gave a false identity. Nor did he disclose the fact that criminal convictions had
been entered against him under his birth name.
17 Ibid, at para [37].
18 See in particular para [7] above.
(c) No disclosure was made of the decision of the (Australian) Migration
Review Tribunal to deport Mr Claudius from Australia.
[40] Mr Claudius’ conduct was premeditated. He engaged persistently in the provision of false information to attain a status to which he knew he was not entitled. The subterfuge that he practised extended over a period of some six years. In those circumstances, the starting point taken by the District Court Judge is not one with which this Court should interfere on appeal.
[41] My only concern with Judge Gilbert’s construction of the sentence is with the uplift to reflect criminal behaviour in New Zealand. This was taken into account as a personal aggravating factor. The Judge had already factored into the starting point prior dishonest conduct with immigration officials. While the Judge was alert to the
possibility of double counting in relation to aggravating factors,19 there is a risk that
was done inadvertently. To avoid what I consider might have been an inadvertent double counting in relation to an aggravating factor, I consider that this uplift should not remain.
[42] The allowance to be given to mitigating factors requires reassessment in light of the new evidence. Subject to the point about the uplift, nothing I say should be taken as a criticism of the way in which the District Court Judge approached the sentencing exercise. Indeed, on the information before him, it is difficult to see how the end sentence might have been gainsaid.
[43] I agree with the credit for guilty pleas given by the Judge. My concern is with the medical evidence and whether a credit ought to be given having regard to Mr Claudius’ current condition.
[44] There are two aspects of the Court’s sentencing functions that come into play. The first involves appreciation of one of the principles of sentencing. Section 8(h) of the Sentencing Act requires a sentence “to take into account any particular
circumstances of the offender that mean that a sentence … that would otherwise be
19 Ministry of Business, Innovation and Employment v Claudius [2016] NZDC 13801, at paras
[29]–[32].
appropriate would, in the particular instance, be disproportionately severe”. The second is the general prerogative of the Court as to mercy, particularly where there are humanitarian concerns involved.
[45] As to the former, I refer to R v Verschaffelt.20 The appellant suffered from an unusual medical condition. While it was manageable through a special needs unit based at Mt Eden Prison, it was clear that the nature of the sentence would impact more severely on him than on other prisoners. As a result of further information provided to the Court of Appeal after sentencing, that Court reduced the effective end sentence from one of four years’ imprisonment to three years’, a reduction of 25
percent.21
[46] The second category is more general in nature and can take account of a broader range of considerations. The extent to which humanitarian considerations can be brought to account was explained by the Supreme Court in R v Jarden.22 In that case, Mr Jarden had been sentenced to a term of three years’ imprisonment following a guilty verdict on one count of conspiring to supply methamphetamine. It was argued that personal circumstances arising out of a family tragedy ought to have been taken into account, notwithstanding the principle that such circumstances are not usually relevant to drug offending.23
[47] Delivering the judgment of the Supreme Court in Jarden, Wilson J said that a credit of six months ought to have been made to reflect the loss of Mr Jarden’s partner and unborn child shortly before his trial was to commence. She had taken her own life and that of the unborn child. A credit of six months amounted to a reduction of the end sentence by almost 17 percent.
[48] Taking into account the medical condition under which Mr Claudius suffers,
his prognosis and his need for “close care and supervision”,24 I consider that, on humanitarian grounds, an overall credit of 15 percent is justified.
20 R v Verschaffelt [2002] 3 NZLR 772 (CA).
21 Ibid, at paras [22]–[32]. See also R v Smith (1987) 44 SASR 587 at 589, to which the Court of
Appeal referred at para [24] of its judgment.
22 R v Jarden [2008] 3 NZLR 612 (SC).
23 Ibid, at para [12].
24 See the extract from Mr Lainchbury’s report, set out at para [13] above.
[49] That leaves a starting point of three years’ imprisonment. From that I deduct
15 percent to reflect the medical concerns. I round that to six months’ imprisonment. From that I deduct the 20 percent credit for guilty pleas. That amount to a further six months. As a result, the end sentence, if imprisonment were ordered would be one of two years imprisonment.
[50] At the time of sentencing in the District Court, there were concerns about inter-personal relationships that militated against imposition of home detention as a sentence, even if that had otherwise been considered appropriate. As a result of submissions made following the first hearing, I am satisfied that no such concerns remain. In that situation, I consider that the sentence should be commuted to one of home detention.25 Having regard to the fact that Mr Claudius has been in custody since 22 July 2016, I fix the term of home detention at nine months.
Result
[51] The appeal is allowed. The sentences imposed in the District Court are set aside. In substitution, a sentence of nine months’ home detention is imposed on each charge. Those sentences are to be served concurrently. I understand that it is likely that Mr Claudius will be deported on completion of his sentence.
[52] Home detention shall be served at the address identified at page 4 of the “Provision of Advice to Courts” dated 14 March 2016. Standard conditions apply. No special conditions have been sought. The sentence shall not commence until
10am on Tuesday 1 November 2016, when Mr Claudius shall meet a probation officer at the property. He shall be released from prison at 9am on that day, and shall go directly to the home detention address, unless (for medical reasons) other
arrangements are necessary.
25 Although Mr Claudius is in New Zealand unlawfully, home detention remains an available sentence: see R v Ondra [2009] NZCA 489, at para [15].
[53] I thank counsel for their assistance.
P R Heath J
Delivered at 4.00pm on 28 October 2016
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