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De Souza v The King

De Souza v The King

Case [2024] NZCA 637 4 December 2024

Deportation

Aggravating Factors

Mitigating Factors

Consequences of Conviction

Judicial Review

Immigration & Refugee Law

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA559/2024
[2024] NZCA 637

BETWEEN	MARISTELA DE SOUZA Appellant
AND	THE KING Respondent

Hearing:	4 November 2024
Court:	Katz, Dunningham and Powell JJ
Counsel:	A G Speed for Appellant R M A McCoubrey and D B Dow for Respondent
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading De Souza v The King

Details

AGLC: De Souza v The King [2024] NZCA 637
Case: [2024] NZCA 637
Decision Date: 4 December 2024 at 10.30 am

CaseChat Overview and Summary

Maristela De Souza appeals against the refusal by Judge Bergseng of the District Court to grant her a discharge without conviction, following her guilty plea to charges of aiding and abetting breaches of visa conditions. The appeal does not seek to challenge the sentence of 10 months’ home detention. The Court of Appeal dismissed the appeal, finding that the Judge was correct to conclude that the consequences of a conviction were not out of all proportion to the gravity of the offending. The Court considered the factors relevant to determining the gravity of the offending, including the planned and premeditated nature of the offending, the fact that it was for commercial gain, and the absence of any evidence of exploitation. The Court also considered the mitigating factors, such as Ms De Souza’s good character and support from her family. The Court found that the consequences of a conviction, including the risk of deportation, were proportionate to the offending, and there was no miscarriage of justice in the Judge’s refusal to grant a discharge without conviction. The appeal was dismissed.

Orders