Meyer v Police
[2018] NZHC 3434
•20 December 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-352
[2018] NZHC 3434
BETWEEN VINCENT MEYER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 December 2018 Appearances:
M N Pecotic for Appellant
Y H Olsen & B C L Charmley for Appellant
Judgment:
20 December 2018
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 20 December 2018 at 3:00 pm Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Kayes Fletcher Walker, Auckland
MEYER v POLICE [2018] NZHC 3434 [20 December 2018]
Introduction
[1] Vincent Meyer pleaded guilty to one charge of possessing a false New Zealand passport1 and on 12 September 2018 he was sentenced by Judge Harvey in the Manukau District Court to 18 months’ imprisonment.2
[2] Mr Meyer now appeals against his sentence on the grounds that it is manifestly excessive, in that the starting point adopted by Judge Harvey was too high and insufficient credit was given for remorse and other personal factors.
[3] The appeal was filed out of time, and Ms Pecotic has explained that communication between Mr Meyer and herself proved difficult following his custodial relocation following sentencing. The Police do not oppose the extension of time for filing and I extend time accordingly.3
The offending
[4] Mr Meyer is 28 years old and holds dual Australian and New Zealand citizenship. On 24 July 2017, he pleaded guilty to one charge of wounding with intent to cause grievous bodily harm in Australia. He was given one day to get his affairs in order before being imprisoned. The following day, on 25 July 2017, he left Australia using a passport that had been issued on 7 July 2017 in the name of Asola Salapo. Asola Salapo is an Australian-based individual whose relationship to Mr Meyer is unknown.
[5] Approximately a year later, on 14 June 2018, Mr Meyer arrived at Auckland International Airport on a flight from Bali. He presented the passport in the name of Asola Salapo to New Zealand Customs for the purposes of gaining entry to New Zealand, but was arrested before he was able to leave the airport. In explanation, he admitted he was Vincent Meyer and was using a false passport in the name of Asola Salapo. However, he declined to offer an explanation as to how and when he obtained the passport.
1 Passport Act 1992, s 29A(1)(c); maximum penalty 10 years’ imprisonment.
2 Police v Meyer [2018] NZDC 19585.
3 Criminal Procedure Act 2011, s 284(4).
Mr Meyer’s personal circumstances
[6] Mr Meyer is 28 years old and has no criminal convictions in New Zealand, although the police advise that he has a criminal history in Australia which includes convictions for violence. No further details have been provided regarding his Australian history.
[7] In his interview with the author of the pre-sentence report, Mr Meyer disclosed an affiliation with the Comancheros gang, and said that the offending in Australia to which he pleaded guilty was gang-related. He says that he was in fear of his life and therefore purchased a false passport to leave the country.
[8] Mr Meyer’s immediate family, including his partner and two daughters aged three and five, reside in Australia. His partner has provided a letter of support, saying that Mr Meyer has a close relationship with his daughters and that his incarceration in New Zealand has been very difficult for them. She also says that Mr Meyer constantly expresses his remorse for his offending. Mr Meyer’s uncle has also provided a letter of reference, in which he expresses the view that Mr Meyer is dependable, trust-worthy and family-oriented. Mr Meyer himself has written a letter of apology to the Court in which he accepts responsibility and expresses remorse for his offending.
Sentencing in the District Court
[9] Judge Harvey observed that Mr Meyer had “quite blatantly used a New Zealand passport in the name of someone other than [himself]” and that this was identity theft.4 His Honour noted that Mr Meyer had obtained the false passport in advance, and that this involved a high level of dishonesty and premeditation. He observed that the “black market exacts a high price for this type of activity”.5
[10]The Judge drew the following observations from the case law:
4 At [4] and [5].
5 At [5].
(a)A passport is an important document which confers significant rights upon the lawful holder.6 A New Zealand passport is prima facie evidence of New Zealand citizenship and allows the holder rights of entry to 52 other countries without a visa.7 It is therefore essential that the integrity of the New Zealand passport system is protected.
(b)Denunciation and deterrence are important sentencing considerations in this context.8
(c)Offences that are unremarkable and motivated by a desire to enter New Zealand illegally could justifiably attract starting points ranging from 15 months to three years.9
(d)A starting point of 18 months was adopted in Chilcott v Police and Markevich v R, while in Burns v Police a starting point of two years was adopted.10
[11] The Judge noted that Mr Meyer used the false passport to facilitate his swift exit from Australia to avoid facing the consequences of his actions there, as well as to facilitate entry into various other jurisdictions. He noted that the seriousness of Mr Meyer’s offending in Australia, to which he pleaded guilty, was marked by the fact his co-offender received a sentence of six months’ imprisonment. He adopted a starting point of two years.
[12] The Judge then gave Mr Meyer the full 25 per cent credit for his guilty plea, and arrived at an end sentence of 18 months’ imprisonment. He was not prepared to give Mr Meyer any credit for remorse. The Judge noted that an electronically monitored sentence was not sought.
6 Chilcott v Police HC Dunedin CRI-2011-412-32, 1 December 2011.
7 Lillandt v R HC Christchurch A69/01, 9 August 2001.
8 Markevich v R (2004) 21 CRNZ 41 (HC).
9 Markevich v R (2004) 21 CRNZ 41 (HC).
10 Chilcott v Police HC Dunedin CRI-2011-412-32, 1 December 2011; Markevich v R (2004) 21 CRNZ 41 (HC); Burns v Police HC Wellington CRI-2005-485-125, 25 October 2005.
Grounds of appeal
[13] First, Ms Pecotic for Mr Meyer submits that the starting point was too high. She says that the Judge elevated the offending to a level greater than that described in the summary of facts to which Mr Meyer had pleaded guilty. In her submission, Mr Meyer’s offending was unsophisticated and not as serious as those cases cited by the Judge. She says that Mr Meyer’s offending should have attracted a starting point at the lower end of 12 to 18 months.
[14] Secondly, Ms Pecotic says that the Judge gave insufficient credit for personal mitigating factors. In particular, she says credit should have been given for remorse, the fact that this was Mr Meyer’s first conviction in New Zealand, and the added difficulty of spending time in custody in New Zealand when his family lives overseas.
Approach on appeal
[15] Section 250 of the Criminal Procedure Act provides that the Court must allow an appeal against sentence if satisfied that for any reason there is an error in the sentence imposed, and that a different sentence should be imposed. In any other case, the Court must dismiss the appeal.
[16] In deciding whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.11 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.12 Ordinarily the Court will not intervene when the sentence is within the range that can be properly justified by accepted sentencing principles.13 The focus is on the end result rather than the process by which the sentence was reached.14
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
12 Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
Discussion
Starting point
[17] There is no tariff sentencing case for the offence to which Mr Meyer pleaded guilty. It carries a maximum penalty of 10 years. Before addressing the relevant case law, I will deal first with a number of points made by Ms Pecotic which are relevant to assessing the seriousness of the offending.
[18] First, Ms Pecotic says the Judge was wrong to describe the offending as “identity theft”: Mr Meyer simply used a name and date of birth that was not his, and Asola Salapo’s identity is unknown. She says Mr Salapo could be entirely fictitious. However as Ms Olsen for the Police points out, Mr Salapo is described in the summary of facts as “an Australian-based individual whose relationship to the Defendant is not known”. It therefore appears that Mr Salapo is a real person whose identity Mr Meyer has used, and identity theft is not an inappropriate description of what occurred. I accept, however, that there was no evidence to indicate how Mr Meyer came to use that particular identity or how he obtained the passport. The Judge was therefore wrong to assume that he had obtained it on “the black market”.
[19] Ms Pecotic then says that the Judge referred to a number of aggravating factors that are not included in the summary of facts to which Mr Meyer pleaded guilty. For example, the Judge says that Mr Meyer used the passport to travel to “various countries” before arriving in New Zealand.15 I accept that this reference was in error: it appears from the summary that Mr Meyer used the passport to leave Australia and to enter at least one other country, given that he arrived in New Zealand from Indonesia around one year after leaving Australia. There is no evidence he travelled to various other countries before coming to New Zealand.
[20] Ms Pecotic then says the summary of facts did not state that Mr Meyer had pleaded guilty to the wounding charge in Australia and been given a day’s grace, in which he left the country on a false passport. She says that the Judge’s consideration of this point gives the impression that Mr Meyer was being sentenced for breaching
15 At [5].
court bail in Australia, which is unfair. I accept that these matters are not included in the summary of facts; the Judge took them from the Police submissions. However, Ms Pecotic does not deny that this is in fact the background context to Mr Meyer’s offending.16 Rather, she appears to dispute its relevance as an aggravating factor of the offending. In my view, however, it is plainly aggravating that Mr Meyer’s motivation for obtaining and using the false passport was to escape the legal consequences of his actions in Australia. Palmer J viewed similar conduct in Brown v Police as an aggravating factor, describing Mr Brown’s actions in returning to New Zealand on a false passport while facing charges in Spain as “an affront to the system of justice in both countries”.17
[21] Ms Pecotic further notes that Mr Meyer is a New Zealand citizen and able to come here legally; he was unable to on this occasion because he had surrendered his New Zealand passport to Australian authorities. She says his actions were “foolish rather than sinister”. In my view Mr Meyer’s status as a citizen of New Zealand does not mitigate the seriousness of his offending, the effect of which is to subvert the integrity of the New Zealand passport system. As has been recognised in other cases, use of a false passport damages the international reputation of our country’s passports and jeopardises New Zealand’s visa-free access to many countries.18
[22] Ms Pecotic also submits that Mr Meyer’s offending was unsophisticated, particularly given that the birth date on the false passport means Mr Salapo is 40 years old, whereas Mr Meyer is only 28 and looks his age. She says his offending was therefore easily detectable on his attempted entry to New Zealand. However, this submission overlooks the fact that Mr Meyer successfully used the passport to leave Australia and to gain entry to at least one other country: his use of a false travel document was not immediately detected. Moreover, I consider that Mr Meyer’s offending was premeditated. The false passport was issued on 7 July 2017, and Mr Meyer left Australia on 25 July 2017. The clear inference is that Mr Meyer
16 If Ms Pecotic denied that Mr Meyer had in fact pleaded guilty to the offence of wounding with intent to cause grievous bodily harm and fled Australia the following day using the false passport, a disputed facts hearing would have been necessary; see Sentencing Act, s 24(2)(c). However, I do not take her submissions as a denial that this is what occurred.
17 Brown v Police [2017] NZHC 2079 at [18].
18 See Chilcott v Police HC Dunedin CRI-2011-412-32, 1 December 2011 at [38], citing Markevich v R (2004) 21 CRNZ 41 (HC) at [25].
deliberately sought the false passport some time in advance, before taking advantage of an opportunity to leave the country.
[23] Turning to the cases cited by the District Court Judge, Ms Pecotic submits that the offending in Chilcott and Markevich was more serious than the present case. She says that a starting point at the lower end of 12 to 18 months would have been appropriate for Mr Meyer’s offending. I note that the District Court Judge erred in his reference to Chilcott and Markevich, saying that starting points of 18 months were adopted in both cases. In Chilcott, however, a starting point of four years was adopted on all charges and in Markevich a starting point of two years was adopted. I accept that the offending in Chilcott was more serious than Mr Meyer’s offending, as it involved the use of false passports to pass through New Zealand’s border control approximately 40 times over a period of 11 years. The four-year starting point in Chilcott reflected the gravity of the offending. That does not inform my assessment of the appropriate starting point in this case. The offending in Markevich was also factually distinct from the present case, and does not provide a useful comparator. The distinguishing feature of Markevich was the sophistication of the commercial enterprise of which the defendant was a customer, whereas the primary aggravating factor in the present case is the use of the false passport to escape the consequences of a criminal conviction in Australia.
[24] I have had regard to the three cases cited by Ms Olsen which involve application for and use of a false New Zealand passport to leave a country while facing active criminal charges in that jurisdiction.19 In R v Kirkland and Brown v Police, a starting point of two years was upheld on appeal. In Farley v R, a starting point of three years was adopted to reflect a breach of home detention conditions as well as the passport charges. In light of these cases, I consider that the starting point of two years adopted by Judge Harvey was within range.
19 R v Kirkland HC Rotorua CRI-2006-092-8020, 3 August 2006; Farley v R [2017] NZCA 97;
Brown v Police [2017] NZHC 2079.
Personal mitigating factors
[25] Ms Pecotic then says that the Judge gave insufficient credit for personal mitigating factors. She refers to the principles of sentencing and says the Judge gave excessive weight to the purposes of denunciation and deterrence. She notes that Mr Meyer’s immediate family is overseas and that separation has been difficult for them. She further says that Mr Meyer has expressed his remorse by writing a letter to the Court. In her submission, credit should have been given for remorse, the fact that this was Mr Meyer’s first conviction in New Zealand, and the added burden of spending time in custody in New Zealand when his family lives overseas.
[26] Section 8(h) of the Sentencing Act 2002 requires the Court to take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe. In the present case I do not consider that the fact Mr Meyer’s immediate family is overseas means that a prison sentence in New Zealand would be disproportionately severe. There was no error by the sentencing Judge in refusing to give a discount for this factor. I also note that the Judge was correct to place weight on the sentencing purposes of denunciation and deterrence, which are accepted in the case law as relevant and important in sentencing for this type of offending.20
[27] Judge Harvey referred to Mr Meyer’s remorse but declined to give a discrete discount for it. The Judge commented:21
Although I have read your remorse letters, and Ms Pecotic suggests that I should perhaps factor remorse into the sentence, I cannot overlook the fact that the reason for obtaining the passport and its use was to avoid the detection and the consequences of your criminal actions in Australia. I am not prepared to grant any further reductions of sentence.
[28] As Lang J has observed, it is open to a sentencing Judge to apply a discount to reflect genuine remorse because remorse is listed as a mitigating factor in s 9(2) of the Sentencing Act 2002.22 Whether or not the Judge does so, however, is very much
20 Chilcott v Police HC Dunedin CRI-2011-412-32, 1 December 2011 at [40]; Markevich v R (2004) 21 CRNZ 41 (HC) at [41]; and Brown v Police [2017] NZHC 2079 at [20].
21 At [18].
22 Renata v Police [2018] NZHC 2673 at [18].
a matter of discretion. The exercise of the discretion will depend on the nature of the offending, the offender's background and the nature of the remorse as determined by the Judge.
[29] In the present case I consider it to be clear that Mr Meyer has expressed genuine remorse. Although Ms Olsen submits that Mr Meyer is primarily concerned with the impact of the offending on himself and his family, I note that in his letter to the Court he accepts full responsibility for his actions and expresses regret for his offending, saying he knows his conduct was wrong and constituted a serious crime. In these circumstances, I consider that the Judge was wrong to treat Mr Meyer’s motivation for offending as effectively negating any credit to be given for his remorse. Mr Meyer had not committed the same or a similar offence previously and in these circumstances I do not consider that his expressions of remorse should have been entirely discounted.23
[30] However, although I find that the Judge erred by declining to give a discount for remorse, I nevertheless consider that a discount of no more than one to two months would have been warranted and necessary to recognise this factor, meaning that the final sentence would not differ to any significant degree. Accordingly I find that the end sentence imposed by the Judge of 18 months’ imprisonment cannot be described as manifestly excessive such as to warrant interference by the Court on appeal. It was within the range that can be properly justified by accepted sentencing principles.
Result
[31] Although the Judge erred in declining to give a discount for remorse, I do not consider that a different sentence should be imposed. The appeal is dismissed.
Paul Davison J
23 Compare Howlett v Police [2018] NZHC 1850 at [22]; and Renata v Police [2018] NZHC 2673 at [18], where the Judge concluded that the offender’s remorse was not genuine, or that evidence of remorse should be given less weight because of the offender’s multiple previous convictions for the same offending in the past.
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