He v Police HC Auckland CRI-2011-404-366
[2011] NZHC 1830
•21 November 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-366
BETWEEN HAO HE Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 21 November 2011
Counsel: F Deliu for Appellant
R E Savage for Respondent
Judgment: 21 November 2011
JUDGMENT OF BREWER J
SOLICITORS/COUNSEL
FC Deliu (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent
HAO HE V POLICE HC AK CRI-2011-404-366 21 November 2011
Introduction
[1] The appellant appeals against his convictions and sentences on two charges of breaching provisions of the Customs and Excise Act 1996.
[2] Essentially, the appellant’s case is that he should have been discharged without conviction on both charges, either because a District Court Judge had given a binding sentence indication that such would be the outcome or because any other outcome is clearly excessive in the circumstances.
Factual background
[3] On 5 May 2010, a consignment of five cartons containing 150 GPS units was imported by the appellant. Customs Inspections Officers requested payment and invoice details from the appellant for the purpose of ascertaining their true value. The appellant forwarded a document that purported to be an invoice. On subsequent interview the appellant admitted that the invoice was false and had been made to evade the payment of full GST on the goods. The declared value of the goods was
$2,143 and the correct value of the goods was $7,995. The amount that the appellant attempted to evade payment on was, therefore, $731.
[4] On 12 October 2010, the appellant was charged with:
(a) Being knowingly concerned in the making of an import entry which was erroneous or false in a material particular, contrary to s 203(4) of the Customs and Excise Act 1996; and
(b) Defrauding the Revenue of Customs, contrary to s 211(1) of the
Customs and Excise Act 1996.
[5] The maximum penalty for each charge is six months’ imprisonment or a fine
not exceeding three times the value of the goods or $10,000.
[6] On 15 December 2010, the appellant requested a sentence indication. The sentence indication hearing was held on 16 February 2011 before District Court Judge LH Moore. The thrust of the submissions of Mr Deliu for the appellant was that the District Court Judge should indicate that if the appellant pleaded guilty to the charges he would be discharged without conviction pursuant to s 106 of the Sentencing Act 2002. Judge Moore reserved his decision. He gave judgment on
19 April 2011 and held that a s 106 discharge could not be indicated. Instead, the indication was that a fine would be the appropriate outcome.
[7] On 8 June 2011, the appellant appeared in the District Court at Manukau before Judge A Swaran Singh. Judge Singh was unaware of the earlier judgment of Judge Moore. However, it seems clear from the transcript of that hearing that Judge Singh, having read the submissions for both parties, had reached a preliminary view that a s 106 discharge without conviction was appropriate.
[8] The District Court Judge began the hearing by advising counsel that he had read the submissions and asked:1
I have read everything that needs to be read. Is there anything new other than what is in the submissions?
[9] The transcript then continues:
MR DELIU:
I just wanted to highlight about five points for you sir but if you can give me—
THE COURT:
You don’t need to. Don’t need to, please. I have read everything you have
written.
MR DELIU:
Can I have an indication sir as to the—
THE COURT:
Yes, I am persuaded to grant a 106 and that is my decision.
[10] Counsel then advised the District Court Judge of the existence and outcome
of Judge Moore’s decision. Following this, counsel for the Crown advised:2
1 Legal discussion before Judge A Swaran Singh, 8 June 2011, p 1.
MS BROWN:
And today was for entering of pleas and for sentences that can be dealt with today.
MR DELIU: Yes.
MS BROWN:
I can provide a copy of the – there should be one on file.
MR DELIU:
Yes he declined an indication sir. My instructions are to plead guilty to both counts. You are free to sentence de novo.
[11] The transcript shows that Judge Singh began to grapple with the fact that he was dealing with a sentencing in which a sentence indication had already been given. Mr Deliu, no doubt having heard what was in the Judge’s mind as to the sentencing outcome, tried to keep the sentencing before Judge Singh:3
MR DELIU:
Well sir if the sentencing can be brought back before you I am still of the view that you are free to do what you want. You are not bound by the decision.
[12] Judge Singh thought that would be difficult because he was unable to roster himself into a departmental court sitting day, to which Mr Deliu responded:
MR DELIU:
No fair enough. Well in that case sir the discussions that were had with
Customs this morning, we’re both in agreement that a fine is appropriate. That is what Judge Moore indicated. It is simply a matter of quantum. Customs is asking for between 500 to 750.
[13] In the event, Judge Singh decided to retain the case himself but to adjourn the
sentencing to enable him to study Judge Moore’s decision.
[14] The matter came back before the Judge on 16 September 2011. Judge Singh advised counsel that he could not disagree with the indication given by Judge Moore. However, Mr Deliu submitted that the indication given by Judge Singh of his decision to grant a s 106 discharge at the earlier hearing was now binding on the Judge and he could not depart from that indication. Judge Singh differed but offered the appellant the opportunity to withdraw the pleas of guilty which had been entered
during the previous hearing on 8 June 2011. Mr Deliu, for the appellant, declined that offer but made it clear that he was not abandoning his point.
[15] Judge Singh then proceeded to sentencing. On the charge of doing an act for the purpose of evading payment of duty on goods4 the appellant was convicted, fined
$500 and ordered to pay court costs of $132.89.
[16] On the other charge, the appellant was convicted and discharged.
Role of the Court on appeal
[17] An appeal against conviction and sentence from the District Court to this Court proceeds by way of rehearing.5 Section 121(1) of the Summary Proceedings Act 1957 provides:
The High Court shall hear and determine every general appeal and make such order in relation to it as the Court thinks fit, and, without limiting the generality of the power conferred by this subsection, may exercise any of the powers referred to in the succeeding provisions of this section.
[18] On an appeal against conviction the Court may confirm it, set it aside or amend it. Similarly with an appeal against sentence, the Court may confirm the sentence or change it. The Court will do the latter if it decides that the District Court had no jurisdiction to impose the sentence or if it is one which is clearly excessive or (in this case) inappropriate.
[19] In considering this appeal, I must come to my own decision on the issues before me. I can take into account the views of the Judges in the District Court but if I consider that they erred in any material respect then I have an obligation to act on
that decision.
4 CRN 10092505868.
5 Summary Proceedings Act 1957, s 121; Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
Whether Judge Singh was bound by his statement that he had decided to give a s 106 discharge
[20] Mr Deliu has made careful submissions to the effect that Judge Singh was bound. He refers to case law to the effect that Judges cannot deviate from sentence indications once given unless there is a proper basis generally related to fresh matters of fact coming into play.
[21] However, I am of the view that Judge Singh did not give a sentence indication in the sense that that term is now understood to mean. Judge Moore gave a sentence indication. It had been requested by Defence counsel, both parties had filed submissions, the submissions were argued and the Judge gave his decision. The indication was that a fine was in order. Counsel for both the appellant and the respondent expected to address Judge Singh on the appropriate level of fine when they appeared on 8 June 2011.
[22] However, Judge Singh had reached the preliminary view that a s 106 discharge was appropriate. He had reached that view having read the sentencing submissions of the parties. Of course, he asked counsel whether they had anything to add to their submissions and when Mr Deliu said that he wished to highlight about five matters, Judge Singh interrupted him to let Mr Deliu know what he was contemplating doing. I do not take his phrase ―that is my decision‖ to mean that that was his formal determination of the sentencing hearing. That would have been entirely premature and out of step with normal procedure. Certainly, neither counsel took that as being the Judge’s meaning. Mr Deliu confirms that pleas of guilty were entered on behalf of the appellant later in that hearing, as shown in the transcript on p 7.
[23] Accordingly, I am satisfied that there was no sentence indication of the sort referred to in the authorities cited to me. There has been no misuse of the District Court Judge’s discretion. He was not exercising a discretion. He came to a sentence hearing with a view as to what his sentence would be, communicated that to counsel, was advised of a material matter which he had been unaware of, adjourned the hearing to consider that matter and then resumed the sentence hearing, ultimately
coming to a different conclusion from the one he had presaged. Crucially, the appellant did not enter his guilty pleas on a promise of a s 106 discharge. There has been no change of position by him which was later used to his disadvantage.
Discharge without conviction
[24] Section 106 of the Sentencing Act 2002 gives a Court the power to discharge an offender without conviction. However, the Court cannot do so unless the test set out in s 107 of that Act is met. The Court must be ―... satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence‖.
[25] The leading cases are the decisions of the Court of Appeal in R v Hughes6 and R v Blythe.7 In terms of these cases, it is convenient to adopt a three-step process to ensure that the statutory criteria are considered properly:
(a) Identify the gravity of the offending by reference to the particular facts of the case;
(b) Identify the direct and indirect consequences of a conviction; and
(c) Determine whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.
The Defence contentions
[26] Mr Deliu submits that the gravity of the offending is low. The amount of
GST in question was $731. In fact, the appellant paid to Customs the sum of
$1,456.25, with the difference being in respect of an earlier importation which, as I understand the submissions, Customs was treating as a civil debt. In any event, Mr Deliu submits that the amount which was in shortfall was paid in full and
accordingly there was no loss to the Revenue. He submits that it is open to the Court
6 R v Hughes [2008] NZCA 546.
7 R v Blythe [2011] 2 NZLR 620 (CA).
on a s 106 discharge to direct the payment of costs, so that is not a factor which I
should take into account.
[27] Mr Deliu points out that although there are two charges, they relate to only one importation and the criminality alleged in them overlaps substantially. The District Court Judge properly felt that both charges could be dealt with by one fine. That was a relatively trivial fine and that in itself shows that on a full culpability basis the appellant’s offending was at the lower end of the scale.
[28] Mr Deliu submits that one of the major consequences of a conviction for the appellant is that it will affect his immigration status. The appellant has been in New Zealand since 2002 for the purposes of studying and building a life here. It is submitted that he has spent nearly nine years and over $250,000 gaining a New Zealand education, renting accommodation and living here. He has finished his studies and has graduated in business, finance and accounting from Massey University. He would like to begin his career in business and he is applying for jobs. A conviction, submits Mr Deliu, will substantially disadvantage him in this endeavour.
[29] The appellant is a Chinese National and is on a temporary visa in New Zealand. He would like to apply for residency. A conviction will cause him serious problems in obtaining residency status as Immigration New Zealand has strict character requirements which a conviction would breach.
[30] Even more seriously, Mr Deliu submits there is a real risk that the appellant could face deportation if the criminal convictions stand. Reference is made to s 157 of the Immigration Act 2009.
[31] In short, Mr Deliu submits that the direct and indirect consequences of a conviction for this appellant are identified as inhibiting him in obtaining a job commensurate with his new qualifications, having a real possibility of affecting his ability to gain residency status, and bringing a substantial risk of deportation.
[32] So far as proportionality is concerned, Mr Deliu quotes the dicta of Wild J in Blythe that the correct focus for a Judge at this stage is to bear in mind the consequences of a conviction when deciding whether they are out of all proportion to the gravity of the offence as first assessed.
[33] Mr Deliu submits that a dishonesty offence at the lower end of the scale (punished only by a $500 fine) when balanced against consequences which, as he puts it, would deprive the appellant of nearly a decade of hard work and ruin his future, must be out of all proportion.
[34] When considering the relevant factors set out in ss 7 and 8 of the Sentencing Act 2002, it is submitted that the appellant has been held accountable and has accepted responsibility for his actions by pleading guilty to them when a fine was indicated, has paid the GST and has lost the goods themselves. Thus, there has been reparation for the harm done by the offending and the appellant’s conduct has been denounced. There is nothing to show that the appellant is a threat to the community.
The Crown’s response
(a) Gravity
[35] The Crown submits that the gravity of the offending is serious in that it involved a deliberate attempt to mislead Customs. Denunciation and deterrence are of particular importance. It is easy to import goods from overseas and providing misleading information about the value of the goods undermines Customs’ ability to carry out its function of protecting New Zealand’s borders and gathering revenue.
[36] The offending was premeditated; the appellant admitted that he had imported goods on a similar basis twice previously. The appellant, of course, cannot be penalised for matters which are not the subject of charges, but that admission does go to credit for character.
[37] The respondent accepts that the fine of $500 and court costs ―was entirely within the appropriate range available‖.
(b) Consequences
[38] As to the impact of convictions on the appellant’s immigration status, the
respondent relies on affidavits from Immigration Officer Bruce Jenkins sworn on
1 March 2011 for the purpose of the District Court proceedings and a supplementary affidavit sworn on 16 November 2011 for the purpose of this hearing. These show that the appellant was granted a graduate work visa on 2 April 2011 which will expire on 2 April 2012. Convictions will not make the appellant ineligible for a graduate work visa and he does not require a character waiver in order to obtain one. He is entitled to lodge an expression of interest for a residence visa under the skilled migrant category. He would have to disclose not only convictions, but whether he has been investigated or charged with any offence in any country. Therefore, regardless of whether convictions are maintained, the appellant will have to disclose his offending and the way in which it has been dealt with. Applicants who are convicted of an offence involving dishonesty will not normally be granted a residence class visa unless granted a character waiver.
[39] Presumably, when the appellant applied for a graduate work visa on
23 February 2011 he declared that he had been charged with these offences, but he was nevertheless granted the visa. If he applies for a residence visa then he will again have to declare not only whether he has been convicted of the current offences but the fact that he has been charged with them. Under these circumstances, he would be required to obtain a character waiver regardless of the existence of the convictions. There would be no automatic declining of the application. The immigration officer concerned would have to assess the whole of the situation.
[40] The respondent submits that in situations where the purpose of a discharge without conviction is to deprive responsible organs of the State, or professional bodies, of information which would be relevant to their appointed duties, then the Courts will be reluctant to grant a discharge without conviction. However, I note that according to the respondent’s submissions that would not be the case here. The Immigration Service would still be apprised of the factual situation and the effect of a discharge without conviction would be to lower the hurdle required to obtain a
residence visa in that it would indicate to the Immigration Service that the Court felt it was not appropriate to enter convictions in all the circumstances.
[41] The respondent notes that any liability for deportation under s 157 of the Immigration Act 2009 is appealable to the Immigration and Protection Tribunal on humanitarian grounds. The respondent cites Zhang v Ministry of Economic Development8 in which Asher J was not satisfied that there was a real and appreciable risk that the appellant in that case would lose her attempt to reside permanently in New Zealand solely because of her convictions. His view was that
because the factual basis would be before the immigration authorities anyway, they should be allowed to do their job.
[42] So far as employment prospects are concerned, the respondent submits that this is not exceptional. However, whether there is a real or appreciable risk of the detriment submitted on the appellant’s behalf is questionable.
(c) Proportionality
[43] The respondent submits that, on its analysis, this is a type of offending which requires deterrence and denunciation and is serious in itself. Given that the immigration consequences will exist regardless of conviction and that employment consequences are nebulous, the respondent submits that it cannot be concluded that the consequences of conviction for the appellant would be out of all proportion to the gravity of the offending.
Decision
(a) Gravity
[44] In my view, the offending was at the lower end of the scale of dishonest offending, but it was of a kind which is serious. I accept the Crown’s submissions
8 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011.
about the role of Customs and that it is important not to undermine it. I also find that the offending was premeditated and against a background of previous importations.
(b) Consequences
[45] I find that the consequences of the convictions so far as the appellant’s immigration status is concerned are limited. The facts to which the appellant has pleaded guilty will be made known to the immigration authorities in any event and they will have to weigh them in the balance of their decision. Technically, convictions could trigger deportation action. But a specialist tribunal exists to ensure that any such action is done on proper grounds.
[46] I accept there is a real and appreciable risk that the appellant’s employment options will be adversely affected by convictions, particularly if he applies for positions of trust. But it is impossible to go beyond that and, in any event, consequences of this sort invariably attach to convictions for dishonesty.
(c) Proportionality
[47] In my view, being subject to the possibility of adverse immigration action and finding it more difficult to obtain employment is not out of all proportion to offending of this sort.
[48] Accordingly, I dismiss the appeal.
Brewer J
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