De Souza v The King
[2024] NZCA 637
•4 December 2024 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA559/2024 |
| BETWEEN | MARISTELA DE SOUZA |
| AND | THE KING |
| Hearing: | 4 November 2024 |
Court: | Katz, Dunningham and Powell JJ |
Counsel: | A G Speed for Appellant |
Judgment: | 4 December 2024 at 10.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Dunningham J)
Introduction
The appellant, Ms De Souza, is a Brazilian national who was granted a permanent resident visa by Immigration New Zealand in December 2016.
In late 2019, she was charged, along with her then husband, Mr Sloan, with 16 charges of aiding and abetting persons on temporary entry class visas to breach conditions of their visas by providing commercial sexual services. Specifically, it was alleged that, from November 2016, the defendants acted as booking agents for female Brazilian nationals who were in New Zealand on temporary visas, arranging for them to undertake sex work through a website known as New Zealand Girls Escort Directory. Income generated by the sex workers was shared 50/50 between the sex worker and the defendants.
The charges did not have a straightforward history through the Courts. While a trial was scheduled on the charges in August 2021, the defendants sought and obtained an adjournment of the trial while they pursued an appeal from a District Court decision admitting evidence obtained from Ms De Souza’s cell phone. That appeal was unsuccessful.[1]
[1]De Souza v R [2021] NZCA 682.
The defendants subsequently claimed that further disclosure provided affected the admissibility of the cell phone evidence. The defendants’ further applications challenging the admissibility of this evidence were dismissed in the District Court on 3 March 2023,[2] and were the subject of an unsuccessful application for leave to appeal to this Court.[3]
[2]R v De Souza [2023] NZDC 3852.
[3]De Souza v R [2023] NZCA 371.
The defendants then sought a sentence indication which was given on 11 October 2023. Following receipt of that indication, Ms De Souza pleaded guilty on 24 October 2023 to a representative charge of aiding and abetting breaches of visa conditions pursuant to ss 343(1)(a) and 355(1) of the Immigration Act 2009 (the Act), covering all the alleged offending.
At sentencing, Ms De Souza applied for a discharge without conviction. Judge Bergseng declined that application.[4] Instead, the Judge convicted Ms De Souza and sentenced her to 10 months’ home detention.[5] Ms De Souza now appeals the Judge’s refusal to grant a discharge without conviction.
[4]R v De Souza [2024] NZDC 14904 [sentencing notes] at [37].
[5]At [42].
She does not appeal the sentence in the event the appeal against conviction is unsuccessful.
Discharge without conviction
Section 106(1) of the Sentencing Act 2002 provides that a Court may discharge an offender without conviction following a plea or a finding of guilt. In order to grant a discharge without conviction, the Judge must be satisfied that “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”.[6]
[6]Sentencing Act 2002, s 107.
That proportionality assessment is to be made in accordance with the three‑step approach set out in the decision Z (CA447/12) v R. That requires the Court to assess:[7]
(a)the gravity of the offending, taking into account all aggravating and mitigating factors of the offending and the offender;
(b)the direct and indirect consequences of a conviction for the offender; and
(c)whether those consequences are “out of all proportion” to the gravity of the offending.
[7]Z (CA447/12) v The Queen [2012] NZCA 599, [2013] NZAR 142 at [8], citing R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8]. See also Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.
Even if a Court determines that the consequences are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although it would be rare for the Court to refuse a discharge in such circumstances).[8]
Approach on appeal
[8]Z (CA447/12) v R, above n 7, at [27].
As Ms De Souza’s appeal is against the refusal to discharge without conviction, and does not seek to appeal her sentence in the event that is unsuccessful, it is purely against conviction alone.[9] To the extent this relates to the Court’s weighing of consequences against gravity, it proceeds by way of a rehearing whereby the appellate Court makes its own assessment of whether the criteria for discharge without conviction are met.[10]
[9]Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [8]–[9] and [15]. See also Charteris v R [2024] NZCA 556 at [9].
[10]H (CA680/11) v R [2012] NZCA 198 at [30]–[35], referring to the standard of review prescribed in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
This Court must dismiss the appeal unless it is satisfied that a miscarriage of justice has occurred.[11] In the context of a discharge without conviction, a miscarriage of justice encompasses cases where the Judge “erred in applying the principles for discharging an offender without conviction”.[12]
District Court decision
[11]Criminal Procedure Act 2011, ss 232(2)(c).
[12]Jackson v R, above n 9, at [12].
The Judge dealt with the application for a discharge without conviction in his sentencing decision. He referred to the requirement under s 107 of the Sentencing Act that the direct or indirect consequences of a conviction needed to be out of all proportion to the gravity of the offence before a discharge without conviction could be granted. He correctly noted that the primary issue in Ms De Souza’s case was the “[i]mmigration consequences that would arise for you”.[13]
[13]Sentencing notes, above n 4, at [26].
In assessing the gravity of the offence, the Judge observed, at the outset, that in the first Court of Appeal decision relating to her case, the offences were described as “relatively serious”.[14] The Judge then referred back to the aggravating features of the offending, noting it was planned and premediated, and it involved 15 individual workers and a significant amount of money, although acknowledging that the total earned of $641,450 was split between Ms De Souza, the workers and Mr Sloan. He also noted the duration of the offending was two years and nine months.[15] He commented that “deterrence will always be significant in cases of commercially motivated breaches of the Immigration Act”, citing Elliot v R.[16]
[14]At [25], quoting De Souza v R, above n 1, at [70].
[15]Sentencing notes, above n 4, at [29].
[16]At [30], citing Elliot v R [2010] NZCA 611.
He then turned to the mitigating factors, which in Ms De Souza’s case included her previous good character, noting she had no convictions from Brazil or in New Zealand up until this point. He also noted that she had good support from her family and her new partner.[17] While Ms De Souza had submitted information about a recent diagnosis of ADHD, the Judge discounted that as a mitigating factor as he did not consider there was any nexus between that condition and the offending.[18] In summary, taking into account the aggravating and mitigating factors of the offence and the offender, he concluded that this was “moderately serious offending”.[19]
[17]Sentencing notes, above n 4, at [31].
[18]At [32].
[19]At [33].
He then turned to the consequences of a conviction and referred to the affidavit evidence of Ms Fleming, an experienced immigration lawyer, saying he considered it in “some detail”.[20] He recognised that Ms Fleming identified the “possibility of deportation” but concluded that that risk was not out of all proportion to the moderately serious offending and declined the application to be discharged without conviction.[21]
Appellant’s submissions
[20]At [34].
[21]At [34].
Mr Speed, for Ms De Souza, says when identifying the gravity of the offending, the Judge did not properly discount for the “numerous mitigating factors”. Had he done so, the offending should have been categorised as moderate offending as opposed to moderately serious.
While he acknowledged the Judge was correct to take account of the need for deterrence, he claimed that the Judge did not consider:
(a)the absence of evidence to show prior planning and premeditation before the sex workers arrived in the country;
(b)the fact there was no element of exploitation in this case; and
(c)the offending was sporadic, involving 15 workers over a two-and-a-half-year period.
At the second stage, Mr Speed said the Judge did not properly evaluate the consequences when weighed against the moderate level of offending. In his view, the risk of deportation as identified by Ms Fleming’s affidavit was “so compelling it should have meant [that a] discharge without conviction should have been granted … in this case”.
Discussion
Gravity of the offending
The Judge began by observing that this Court described the offences as being “relatively serious”.[22] However, he also came to his own conclusion on that issue, noting the extensive time period over which the offending occurred and the significant amount Ms De Souza and her co-offender earned, at least in gross earnings (being $320,000 between them). Thus, the offending was clearly for monetary gain. He also concluded that this was planned and premeditated offending.[23]
[22]At [25].
[23]At [29].
While Mr Speed took issue with this last conclusion, we are satisfied it was supported on the evidence. In Ms De Souza’s affidavit she says she met Mr Sloan and it was “his idea that we recruit sex workers from Brazil”, saying “there was clearly a high demand for these kind of services in New Zealand”. Thus, this was seen by the couple as a business opportunity they could exploit. Furthermore, it is an obvious inference that the offending was a planned operation given the number of young women involved (15), and the fact that 11 of the 15 had advertisements placed, advertising them as sex workers, within five days of their arrival. The Judge was correct to identify this as planned and premeditated offending.
While Mr Speed said, in oral submissions, that this was a “victimless” crime and there was no evidence of exploitation, we accept the respondent’s submission that we simply do not know whether this was victimless offending. In any event, one of the reasons for the Immigration Act prohibiting assisting visitors to New Zealand to work in breach of their entry visas is because of the enhanced risk of exploitation in such cases.[24] If there is exploitation, it is less likely to be reported given the potential immigration consequences for the worker.
[24]See United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW): Ninth Periodic Report by the Government of Aotearoa New Zealand (Ministry for Women, July 2023); and Prostitution Reform Act 2003, ss 3(a) and 19.
In our view, we cannot assume that this is a victimless offence and it does not modify the Judge’s assessment that this was moderately serious offending, given it was sustained, premeditated offending for commercial gain.
The next submission made by Mr Speed is that the Judge gave no discount for the numerous mitigating factors saying that the Judge “seemed to start from moderately serious and gave no actual discount” and in effect started and finished on the same point.
The Judge started from the position that this was “relatively serious” offending, but, taking into account the mitigating factors, (being Ms De Souza’s lack of convictions, her previous good character, the support she had from her wider family and from her current partner, Mr Apostolakis, and her guilty plea), found it was “moderately serious offending.”[25] He clearly did take into account the mitigating factors raised and we see no error in his conclusion.
Consequences of conviction
[25]Sentencing notes, above n 4, at [35].
The primary focus of Mr Speed’s submissions was on the consequences of the offending and in particular, the risk that Ms De Souza would be deported. In terms of these consequences this was fully covered in the helpful affidavit by Elina Fleming, a lawyer specialising in immigration law.
It is relevant to summarise her evidence as this provides the factual basis for the submissions on the immigration consequences of offending. The key points are:
(a)Ms De Souza was granted a residence class visa under the Act in September 2014. The offending in question was committed in the period from November 2016 to August 2019, that is, within five years of Ms De Souza first holding a residence class visa. As a consequence, her circumstances fall within s 161(1)(b) of the Act and the deportation liability process would ensue following sentencing.
(b)Deportation liability does not automatically result in an actual deportation. A number of further legal and procedural steps are required. This includes the Minister or Delegated Decision Maker determining whether to direct the service of a deportation liability notice or whether to cancel or suspend deportation liability under s 172 of the Act.
(c)As part of that process, the affected residence visa holder will be “given an opportunity to make submissions and to document any mitigating circumstances they wish to be considered as part of the process”.
(d)The decision on whether to direct service of a deportation liability notice or to cancel or suspend it, will consider the seriousness of the offending “as indicated by the maximum penalty as well as the actual sentence imposed”. It will also take into account the interests of any New Zealand family members of the resident visa holder, and they will place particular weight on the interests of any minor New Zealand citizen or resident children of the resident visa holder.
Ms Fleming’s conclusion, based on her experience, is that:
… the Minister or Delegated Decision Maker is likely to direct the service of a deportation liability notice, but then order the deportation liability to be suspended for a period of five years under section 172 of the Act in response to a first conviction, which already crosses the threshold of section 161. That said, since this is a discretionary process the inherent risk of deportation liability not being cancelled or suspended remains. For Ms De Souza, in particular, this risk is very high since the nature of her offending is highly likely to be considered as very serious …
Ms Fleming’s evidence also covers the following issues:
(a)the likelihood of Ms De Souza being able to get a visa to enter Australia to visit her adult son there, concluding that Ms De Souza’s conviction “would pose a risk of Australian visa refusal”;
(b)the effect of a conviction on Ms De Souza’s ability to obtain New Zealand citizenship even if she was able to stay in New Zealand, noting that as her conviction did not involve a sentence of imprisonment, she would need to delay her citizen application for a period of three years, as s 9A(1)(c) of the Citizenship Act 1977 states that citizenship cannot be given to someone who in the preceding three years, has been convicted of an offence that did not involve a sentence of imprisonment unless there are exceptional circumstances relating to the conviction.
Ms De Souza and Mr Apostolakis, her partner, and the father of their six‑year‑old child, both filed affidavits and other evidence to explain the consequences for them if Ms De Souza were to be deported. Mr Apostolakis has criminal convictions, albeit relatively dated, including one incurred in 2011 for importing ecstasy. He states: “I believe I would stand no chance of being allowed to live in Brazil permanently”. He notes also that he has significant health difficulties, suffering from a “debilitating skin condition called Hidradenitis Suppurativa”. That said, he works 40 to 60 hours a week full time as a supervisor in a kiwifruit orchard.
Ms De Souza says, if she had to return to Brazil she would have to leave her son in New Zealand because she does not believe Mr Apostolakis would let the child leave New Zealand. She says she would find it difficult to go back to Brazil given it is a “much more dangerous country to live in than New Zealand” and it would be difficult to obtain employment. She also notes there is no social welfare support in Brazil.
Proportionality
Mr Speed submits that the Judge simply failed to properly consider the risk of deportation described in Ms Fleming’s affidavit and the consequences that there would be for this family if that risk eventuated. He argues that this is a “compelling” consequence of conviction and meant that the application for a discharge without conviction should have been granted in all the circumstances of the case.
The recent Supreme Court judgment in Bolea v R provides guidance on how a Court should consider the risk that a defendant will be deported when considering an application for a discharge without conviction.[26] The Court concluded that where there is “unchallenged evidence” that the issue of a deportation liability notice will “almost certainly” occur, then (in the absence of other evidence), both the liability for deportation and the risk of actual deportation should be treated as a consequence of conviction under s 107.[27] As outlined in Ms Fleming’s evidence, under s 161 of the Act, a conviction will mean that Ms De Souza is liable for deportation. However, she also notes that the likely outcome is that the deportation notice will be suspended for a period of five years, albeit subject to conditions imposed under s 172(2)(b) of the Act, including a condition not to incur any further convictions (whether in New Zealand or elsewhere).
[26]Bolea v R [2024] NZSC 46, [2024] 1 NZLR 205.
[27]At [41].
There can be little doubt, in our view, that if a deportation notice is issued but suspended on such conditions, that would be an entirely proportionate consequence to the seriousness of Ms De Souza’s offending.
However, Ms Fleming cannot rule out the possibility that Ms De Souza would be deported. Indeed, her uncontested evidence says there is a “real and appreciable risk” that her deportation liability would not be cancelled or suspended. We therefore have to consider whether the possibility of that risk eventuating is out of all proportion to the gravity of her offending. In our view, it is not.
As already discussed, Ms De Souza’s offending involved planned and premeditated offending over a significant period of time for commercial gain. It was offending which commenced not long after she had been granted permanent residence status in New Zealand. As the respondent noted, there is a certain irony in the fact that Ms De Souza deliberately offended against the Act and she now wishes to avoid the consequences which follow under that Act, in seeking her discharge without conviction.
The primary concern about being deported to Brazil is the risk that one or the other parent would be separated from their child. On one scenario, this is because Mr Apostolakis would choose not to move or allow his child to go there. On another it is because Mr Apostolakis could not live with Ms De Souza in Brazil because of his convictions. However, we note the question of whether Mr Apostolakis would be able to reside in Brazil is not the subject of expert evidence. The only evidence is of his and Ms De Souza’s belief that he would not be permitted to live there. If that was the legal position, it would have assisted to have evidence on it. If it is indeed the case that Mr Apostolakis could not follow Ms De Souza, and the child would be separated from one or other parent, that is clearly a matter which Ms Fleming’s evidence says the Minister or delegated decision maker would take into account in deciding whether to suspend deportation liability.
The balance of the concerns about Ms De Souza being deported to Brazil relate to the social and economic circumstances in that country. However, again, those concerns (noting that is the environment Ms De Souza lived in for the majority of her life), do not elevate the consequences to being out of all proportion to the gravity of the offending. She is returning to a familiar, albeit less desirable, country to live in where she has family connections.
The balance of the likely consequences, including:
(a)the risk she would not get a visa to visit her adult son in Australia;
(b)a delay in being eligible to obtain citizenship; and
(c)incurring costs in navigating the immigration system
strike us as neither individually, or in totality, consequences which are out of all proportion to the gravity of the offending.
In particular, no evidence was given as to why Ms De Souza’s adult son could not visit her in New Zealand or elsewhere, and it seems to us entirely appropriate that the ability to apply for citizenship should be deferred and require Ms De Souza to demonstrate a lengthy period of law-abiding behaviour before eligibility. The costs incurred in navigating the immigration system are simply a natural and proportionate consequence of breaking the law.
In summary, we are satisfied that the real and appreciable risk of deportation, (albeit not the most likely outcome) is not out of all proportion to the gravity of the offending.
Conclusion
The appeal is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent
3
7
0