Pitts (aka Engram) v Department of Labour HC Christchurch CRI-2011-409-000104

[2011] NZHC 1825

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000104

SHAWN DEL PITTS

(AKA DANA ENNIS ENGRAM)

v

DEPARTMENT OF LABOUR

Hearing:         16 November 2011

Appearances: S Clay for Appellant

M Zintl for Respondent

Judgment:      16 November 2011

ORAL JUDGMENT OF HON JUSTICE FRENCH

Introduction

[1]      Following pleas of guilty, the appellant, Sean Del Pitts, was convicted of seven charges laid  under  the  Immigration  Act  1987,  namely two  charges of producing a passport knowing it to have been fraudulently obtained and five charges of supplying false or misleading information to an immigration officer.

[2]      He was sentenced to a term of imprisonment of 18 months.

[3]      He now appeals that sentence.

PITTS V DEPARTMENT OF LABOUR HC CHCH CRI-2011-409-000104 16 November 2011

Facts of the offending

[4]      Mr Pitts is a national of the United States.  In 2004 he entered New Zealand on two separate occasions using a fraudulent passport he had obtained in the name of his deceased step-brother.  The reason he used a false passport was to avoid arrest by the American authorities.  He is wanted in the United States on several charges of alleged benefit fraud.  The indictment was apparently issued in 2000.

[5]      In July 2004 Mr Pitts applied for a work permit in New Zealand.  He failed to declare his true  name  and  failed to  declare he was under  investigation for  alleged criminal offending in the United States.  As part of his application, he also supplied two false work references.  He claimed to have worked for particular employers when in fact he had never done so.

[6]      The New Zealand authorities issued a work permit.

[7]      In November the following year, he submitted a further application for a work permit with the same false details.  A further work permit was again duly issued.

[8]      Then, in 2006, Mr Pitts applied for residence, once again perpetuating the same fraud.  He was granted residence.

[9]      The offending only came to light after an alert from the United States.  In July

2011  the  Hawaiian  authorities  issued  a  warrant  against  him  on  charges  of  falsely applying for a passport (offence date 2001) and use of a passport by reason of a false statement (offence date 2004, which is when he used his passport to enter New Zealand).

Sentencing in the District Court

[10]     The information before the sentencing Judge included a pre-sentence report.  It told the Judge that Mr Pitts is 52 years of age, employed and in a stable relationship with a New Zealand woman from whom he had concealed his true identity.  He was said to have expressed genuine remorse and motivation to make amends for the harm he had done not only to the New Zealand immigration system but also towards his partner and current employer.

[11]     At the time of writing the report, the probation officer was not sure whether Mr Pitts did have previous convictions in the United States.  However, on the assumption he did not have any, the writer assessed him as being at very low risk of reoffending.  The report recommended home detention combined with community work.

[12]     In addition to the pre-sentence report, the Judge was provided with a number of references.  These were very positive, and spoke highly of Mr Pitts.

[13]     The sentencing notes identify five discrete offences: the two passport offences and the 2004 and 2005 applications.  The Judge said that, having reviewed the relevant authorities, he considered an appropriate starting point was a term of imprisonment of two and a half years.  The Judge declined to give Mr Pitts any credit for being a first offender, on account of the outstanding issues in the United States, in particular, the Hawaii charges.  The Judge was, however, prepared to give a discount of two months for remorse, and a 25 per cent reduction for the early guilty plea.  That reduced the sentence to 21 months.  The Judge reduced it by a further three months, on account of totality, and also, he said, to avoid any suggestion of double-counting, because of the discrete offences.

[14]     Having arrived at an end sentence of 18 months’ imprisonment, the Judge then went on to consider home detention.  The Judge noted, following R v Osman,[1] that home detention was potentially available.   However, in his view it was not an appropriate sentence, in the circumstances:

[1] R v Osman [2010] NZCA 199

[20]      The issue is can denunciation, deterrence (that is general deterrence to others who would want to infringe the immigration rules) and accountability be met by home detention.  I do not think there is any issue of personal deterrence because I think you have learnt your lesson.

[21]     As  I  have  said,  earlier  cases  would  have  suggested  that  home detention may not be appropriate but in light of the Court of Appeal decision I have referred to I need to consider it.  I need to consider all aspects of the Sentencing Act and not only the ones I have mentioned but rehabilitation, for example.

[22]     This is extraordinary offending in my view involving someone who not only has duped the New Zealand Immigration Authorities but that of another country.  In my view, notwithstanding that the home is suitable, in my view I cannot conceive of a situation where home detention is more inappropriate  than  this  case  given  the  extent  of  the  offending  and  the

seriousness of it.  I do not think denunciation, deterrence and accountability can be met by the imposition of a sentence of home detention and I refuse you home detention.

Grounds of appeal

[15]     On appeal, Mr Clay argues that the Judge was wrong not to impose  home detention.  In Mr Clay’s submission, home detention was the appropriate sentence.

[16]     In support of that argument, Mr Clay made the following points:

i)        Mr Pitts has already served two months of his sentence.

ii)       He is at no risk of reoffending and poses no risk of harm to the community.

iii)      Imprisonment is a cost to the taxpayer, whereas if he was on home detention he would be a productive member of the community.

iv)      There is work available for him.

v)        The Judge erred in not allowing a discount on account of the absence of any previous convictions.

vi)      Home detention does have a sufficient deterrent aspect.

Discussion

[17]     It is well established that the decision whether or not to impose a sentence of home detention is a matter of discretion.[2]   That means on appeal, it is not a case of my substituting my judgment for that of the sentencing Judge, but rather for the appellant to point to some identifiable error.

[2] James v R [2010] NZCA 206.

[18]     The essence of this appeal, however, is an attempt to re-argue the merits of the Judge’s decision, rather than point to any identifiable error.   Essentially, Mr Clay is arguing weight.

[19]     The only error of principle which has been advanced is the Judge’s decision not to allow a discount for the absence of previous convictions.   However, all that the Sentencing Act 2002 requires is that the Judge take that matter into account, which he clearly has done.   In my view, the Judge’s reasoning on that point is sustainable.   It could also have been argued that because this offending spanned a long period of time, the appellant was not entitled to a credit for good character for that reason alone.  In any event, I am not satisfied that, even if the Judge has made an error, it is of any significance.   If a discount had been allowed, it would have reduced the term of imprisonment by only a modest amount, and would not have had an impact on the issue of home detention.  It also does not have an impact on the issue of whether 18 months’ imprisonment is manifestly excessive.

[20]     The Judge was not saying that the sentence of home detention does not have a deterrent aspect, but simply that in this case the particular circumstances required more. That was a view that was clearly open to him.   As recent Court of Appeal decisions make clear,[3] there is no prevailing presumption as such in favour of home detention, and in cases where denunciation, individual and general deterrence are of particular significance, the Court will seldom interfere in the sentencing Judge’s assessment of home detention as a realistic alternative.

[3] See for example R v Stacey [2008] NZCA 465.

[21]     I am mindful, too, of what was said in R v D,[4]  where the Court talks about affording greater weight to the views of the sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried.  As the Court of Appeal said, the sentencing Judge from those jurisdictions will be in a much better position that an appellate Court to determine which type of offending falls on one side of the line or another.

[4] R v D [2008] NZCA 254.

[22]     In summary, I consider that the decision the Judge reached in this case was one that was open to him.  I can find no error of reasoning, no relevant factors ignored and

no irrelevant factors taken into account.  I must be true to my appellate role.  There is no basis on which it would be proper for me to interfere.

[23]     Accordingly, I have come to the clear conclusion that the prison sentence must be confirmed.  The appeal is accordingly dismissed.

Solicitors:

Lane Neave, Christchurch
Crown Solicitor’s Office, Christchurch