Department of Labour v Ioasa HC Auckland CRI-2008-404-000145

[2008] NZHC 2492

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-404-000145

DEPARTMENT OF LABOUR

Appellant

v

TAPU IOASA

Respondent

Hearing:         11 August 2008

Appearances: D G Johnstone and M R Harborow for the Appellant

J J Milo for the Respondent

Judgment:      11 August 2008

(ORAL) JUDGMENT OF PRIESTLEY J

Solicitors:   Meredith Connell P O Box 2213 Downtown Auckland 1140 for the Appellant

Sapolu Law P O Box 75420 Manurewa Auckland 1702 for the Respondent

DEPARTMENT OF LABOUR V TAPU IOASA HC AK CRI-2008-404-000145  11 August 2008

Scope of appeal

[1]      On 23 April 2008, Judge Singh sentenced the respondent to a term of nine months home detention, coupled with 380 hours of community work.   Those sentences were imposed in respect of five charges laid under the Immigration Act

1987, to which I shall return.

[2]      The appellant obtained the consent of the Solicitor-General under s 115A of the Summary Proceedings Act 1957 to appeal against that sentence on the grounds that it was manifestly inadequate.

[3]      The   appellant   clearly   considers   that   the   Judge’s   sentence   was   an inappropriate response to the charges the respondent faced.  Matters of public policy and sentencing precedent are involved.  Hence the appeal.

[4]      Nonetheless, the appellant has been cognisant of the principles relating to

Crown appeals enunciated by the Court of Appeal in R v Donaldson (1997) 14

CRNZ 537.  In particular, at 550 the Court said:

The enactment of s 382(2) of the Crimes Act 1961, however, makes it plain that the Legislature expects this Court to intervene and grant leave to the Solicitor-General to appeal in appropriate cases. At times, certainly, any deficiency or discrepancy in the sentence under appeal may be met by the Court indicating what the appropriate term of imprisonment would have been but nevertheless declining to reverse  a non-custodial  sentence. We would consider such a course appropriate where the minimum custodial term which would otherwise be substituted would be 2 years’ imprisonment or less.

[5]      Because the appellant submits that a custodial sentence, but one of under two years would have been appropriate, it does not seek by its appeal a substituted sentence.  Instead, what it seeks, in terms of Donaldson, is a clear indication of an appropriate sentence, but without interference with the sentence actually imposed.

[6]      The Court is obliged to Mr Milo, who appeared for the respondent.  On the basis of the appellant’s indication, Mr Milo did not have to defend the sentence imposed in the District Court.   Nonetheless, he has been of assistance to me.   I

record the Court’s gratitude for the courtesy of Mr Milo’s appearance and for the helpful submissions he has made.

The sentence

[7]      The   respondent   initially   faced   some   eight   charges   laid   under   the Immigration Act 1987.   The informations were sworn in 2006, resulting in a first appearance on 2 October of that year.  There were a number of appearances.  A two day defended hearing before Judge Singh started in July 2007.  At the outset of the second day (24 July), as a result of negotiations between counsel, the respondent pleaded guilty to five of the charges he faced.   The remaining charges were not pursued.

[8]     There then followed an extraordinarily long remand pending sentence. Sentencing did not take place until 23 April 2008, over nine months later.

[9]      The agreed summary of facts states that the respondent, who is a citizen of Samoa, first arrived in New Zealand in 1997 on a three month visitor’s permit.  This was extended to February 1998.  Although the respondent made further applications to the Immigration Service, these were refused.   Following the expiration of his permit, the respondent stayed illegally in New Zealand for approximately five years. He was undetected.  However, in April 2003 he left New Zealand voluntarily.

[10]     He  returned  to  New  Zealand  two  months  thereafter  with  a  fraudulently obtained visitor’s visa in the name of Tapu Sione.  The summary of facts does not indicate  whether  that  name  was  a  loose  combination  of  names  to  which  the respondent may have been culturally entitled, or whether  it  was  the  identity of another person.  Probably on the basis of what counsel have told me from the Bar, the former.   Clearly, however, the name was deployed by the respondent to disassociate himself from his previous period of illegal residence in New Zealand.

[11]     An initial one month visitor’s permit was granted.  Again, the respondent left New  Zealand  for  Samoa,  returning six  months  later  with  a  further  fraudulently obtained visitor’s visa in the name of Tapu Sione.

[12]     In August 2004, the respondent in the name of Tapu Sione, successfully applied for a 12 month work permit.  During the currency of that permit, in February

2005, again using the name Tapu Sione and based on previous permits issued to him, the respondent applied for permanent residence.

[13]     In respect of all these permits the respondent made false declarations to the effect that the information being supplied was true and correct.

[14]   A further work permit was obtained in July 2005 on the same basis. Disturbingly, on 21 December 2005, as a result of his February application, the respondent was granted permanent resident status under the identity of Tapu Sione.

[15]     His offending was subsequently detected.  He was interviewed in September

2006  by  an  Immigration  fraud  investigator.     He  admitted  the  facts  which subsequently appeared in the agreed summary of facts.

[16]     During the period of these various sojourns in New Zealand, the respondent had understandably put down roots, married, and, as I understand it, now has four children.

[17]     Despite his September 2006 admission, the respondent initially entered pleas of not guilty.  His guilty pleas did not arrive until over nine months after his initial appearance.

[18]     The challenge is to the final result, rather than the sentencing methodology. The Judge’s approach was as follows.  His sentencing notes are succinct and well- structured.  He noted that two of the charges to which the respondent pleaded guilty were laid under s 142(1)(d)(ii) of the Immigration Act and the other three under s 142(1)(c), all of which carried a maximum penalty of seven years’ imprisonment and/or $100,000 in fines (s 144(1)).

[19]     The Judge referred to the respondent’s steady work record and supportive references obtained from his employer and his landlord.  He correctly categorised the charges as being serious, and classified the offending as “identity fraud”.

[20]     He referred to the competing submissions, the informant’s being focused on denunciation and  deterrence,  and  the  respondent’s  being  on  a  community-based sentence.  Clearly the Judge had turned his mind to a sentence of home detention at an earlier stage since, when the matter was called before him on 25 February 2008, he sought the relevant appendix from the Probation Service.

[21]     The Judge then referred to six District Court judgments to which counsel had referred him, all but one of which resulted in home detention being declined.  The Judge also referred at the end of his sentencing notes to my judgment of Markevich v R (2004) 21 CRNZ 41, which made reference to the need to deter insidious threats to New Zealand’s border security and immigration controls through elaborate and premeditated deceptions.

[22]     Prior to that, however, the Judge, on the traditional sentencing route, referred to the respondent’s family situation.  He listed as “serious aggravating features” the number of charges and the offending spanning a period of approximately 15 months. The mitigating factors he identified were, for some reason, the respondent’s age of

37,  the  fact  that  he  had  no  known  previous  criminal  history,  particularly  in New Zealand, and his guilty pleas “albeit at somewhat late stage”.  He referred to the respondent’s good work record and his skill.

[23]     The   Judge   then   reminded   himself   that,   with   amendments   to   the Sentencing Act 2002, home detention was available as a stand-alone sentence, an option not previously available.  The Judge then said:

[34]      It is the Court’s view, in most cases of identity fraud, imprisonment would still be the most appropriate sentence.   I have regard to the distinguishing features in this case in coming to the view that the purposes and principles of sentencing can be made in the particular circumstances of this case by a sentence of Home Detention combined with community work and reparation.

…

[37]      In   this   case,   I   have   taken   a   starting   point   of   18   months imprisonment.   For your remorse, offer to make reparation and otherwise good character, as well as your personal circumstances, I conclude that, in all the circumstances of this case, a final sentence of 12 months imprisonment would have been appropriate.

[38]      Given a sentence of 12 months imprisonment constitutes a short term of imprisonment within the meaning of the Sentencing Act, the Court has  a  discretion  to  consider  whether  the  purposes  and  principles  of sentencing can be met by a sentence other than imprisonment.

[39]     In the particular circumstances of this case, I am of the view that a sentence of Home Detention, together with community work and an order for reparation, would meet the purposes and principles of sentencing.

[24]     Reparation  of  $2,500  was  ordered,  this  being  a  volunteered  contribution towards the NZIS’s investigation costs.

[25]     Although not spelled out with clarity, on the first chronological charge, the Judge, in addition to reparation, imposed a 380 hour community work sentence.  On the remaining four charges, he imposed a nine month home detention sentence, together with concurrent community work.

Discussion

[26]     As is clear from a number of High Court decisions, in 2002 Parliament amended the Immigration Act, lifting the maximum penalty for these offences from three months imprisonment to one of seven years and the permissible fine from a maximum of $5,000 to one of $100,000.   These significant increases are a clear unambiguous expression of Parliamentary intention about the need to preserve the integrity of New Zealand’s borders and the country’s linked immigration controls.

[27]     A number of High Court decisions have commented on and reflected that

Parliamentary policy:  see R v Chechelnitski HC AK CRI-2004-092-001239 6 April

2004, Paterson J; Markevich v R (2004) 21 CRNZ 41; Asamoah v Department of Labour  HC  AK  CRI-2004-004-006892  10  June  2005,  Frater  J;  Department  of Labour v Liao HC AK CRI-2004-404-000499 14 April 2005, Keane J; and Lee v Department of Labour HC AK CRI 2007-404-0126 9 July 2007, Stevens J.

[28]     In R v Zanzoul CA297/06 6 December 2006, the Court of Appeal at [83]

stated that deterrence was an important factor in cases of immigration fraud.

[29]     These  authorities  are  clear  indicators  of  judicial  response  to  the  2002

Parliamentary  policy,  relating  to  immigration  controls  and  travel  documents,  to which I have referred.

[30]     With respect to the Judge, although the District Court decisions to which he referred all pointed the same way so far as the home detention sentencing option was concerned, the Judge has not given any clear reason why he, for his part, did not reject home detention.  Rather, he has used the traditional approach of arriving at a

12 month “short” sentence, which, in terms of the Sentencing Act and R v Hill

[2008] NZCA 41 would have entitled him to consider home detention.

[31]     The appellant’s submissions in this area are compelling.  Although accepting that community-based sentences such as home detention and community work can properly be used to encourage reintegration and rehabilitation, in immigration fraud cases the overriding s 7(1) purposes must be deterrence and denunciation.

[32]     Outside  the  immigration   fraud   area,   there  are  decisions   which   alert sentencing Judges to the obvious proposition that home detention can in some cases undermine deterrence: R v Papuni CA124/03 11 August 2003; and R v Salanoa [2008] NZCA 185.

[33]     There is nothing in the recent amendments to the Sentencing Act which detracts from the obligation of courts to arrive at end sentences which appropriately balance not only the circumstances of the case, but the relevant purposes and principles which come into play.   It is quite clear from the authorities I have mentioned that the deterrence and denunciation purposes for immigration fraud cases have been clearly articulated since 2002.  The recent amendments permitting home detention as a stand-alone sentence do not undercut or alter the clear policy in the immigration area.

[34]     Other  submissions  advanced  by  the  appellant  were  that  the  Judge  had wrongly  taken  into  account  the  prospect  of  the  respondent’s  removal  from New Zealand.  In that regard, the Judge said:

[22]      I have given very careful consideration to each one of these cases.  I note that in most cases following a term of imprisonment, prisoners face inevitable deportation to their home countries.  In this case, I note that whilst revocation of your permanent residence may eventuate, however it would be presumptuous to conclude that following a term of imprisonment it is inevitable that you will be deported forthwith.

[35]     Exactly what the Judge had in mind by mentioning this is not apparent.  He does  not  return  to  it  when  reaching  his  end  sentence,  although  there  is  an intermediate comment (at [24]) that many people committing offending of this type remain in custody until their removal or have already been in custody.

[36]     If the Judge was signalling that when a person’s eventual removal from New Zealand was problematic this was a factor that he should call into aid to justify a community-based sentence, then he was wrong to do so.

[37]     The  appellant  further  submitted  that  the  Judge  had  given  the  respondent credit for mitigating factors which should not have occurred.   I disagree with that submission, which Mr Harborow re-cast during the course of dialogue between the Bench and Bar.  The modified submission was that the Judge had given excessive weight to mitigating factors.

[38]     I agree with that.   The guilty plea came during the middle of a defended hearing.   Although initially co-operative with NZIS investigations, the respondent maintained his not guilty pleas, as he is entitled to do, for a considerable period of time.  His good character and his remorse, however, I consider justified some credit. The 33⅓% credit the Judge factored in to reduce his 18 month start period was, in my judgment, too high in the circumstances.

[39]   The appellant in a submission, which weaved through its others, also commented that the community-based sentences of home detention and community work effectively rewarded the respondent by allowing him to remain in a community in which he had been living illegally for some years.   I accept the force of that submission.  Doubtless the Judge had in mind the respondent’s steady employment and the fact that he had an established home with a wife and four children.  These would in many cases point towards a home detention sentence.   However, in this

particular case it was not the rehabilitation and reintegration purposes which need to be applied.  The deterrence and denunciation purposes needed to be prioritised.

[40]     At a human level, of course, the plight of the respondent and his family is severe.   It is quite simply a product of the respondent remaining undetected in New Zealand between 1998 and 2003 and not being removed.  That personal plight, however, has been aggravated by the respondent’s deliberate and calculated deceptions,  which  clearly  were  designed  to  produce  the  result  of  permanent residence in New Zealand to which he was not entitled.

Decision

[41]     I  would  for  my  part  regard  the  charge  relating  to  the  false  information submitted by the respondent to NZIS in February 2005 to support an application for permanent residence as being the most culpable charge and the one which should have attracted a lead sentence.   Mr Harborow is correct when he observed that charge was the culmination of previous offending (the earlier visitor’s and work permits).  Nonetheless, permanent residence in New Zealand is a tightly controlled and highly sought after status.   Any false information submitted in support of a permanent  residence  application  constitutes,  in  my  judgment,  serious  offending which should attract a significant penalty.   It is similar in kind, although falling somewhat short of, a false application for a New Zealand passport.

[42]   The appellant’s submission suggested an end sentence of 15 months imprisonment by adopting, uncritically, the Judge’s 18 month start point and discounting by approximately 17%.

[43]     Were I to have been imposing sentence in this particular case, I would for my part have arrived at a start point of two years.   That start point would reflect the overall culpability of both the false permanent residence application and the four other false identity charges.

[44]     In some circumstances, a higher start point might well have been justified.  In this case, the respondent’s culpability would, I suspect, in part have been motivated

by his desire to achieve regularity so far as his immigration status was concerned for the benefit of his family.  Were this type of offending motivated by monetary gain or assisting others attempting to avoid New Zealand immigration controls, a sterner start point would probably be justified.

[45]     From a two year start point, I would have discounted in the region of 20-25% to reflect the mitigating factors of the late guilty plea, remorse and the offer of reparation.  An end sentence in the order of 18 months in my judgment would not have been untoward.

[46]     Clearly, for the reasons I have stated, the sentences imposed by the Judge of home detention and community work should not have been imposed.

[47]     Having given those indications, however, for the reasons stated at the outset of this judgment (supra [4]-[5]), the appeal is dismissed.

[48]     These indications are not to be treated as tariffs or inflexible guidelines. Each case must be treated on its own facts, with close scrutiny of the culpability involved and Parliament’s policy.

..........................................

Priestley J