R v Tang

[2019] NZHC 2056

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-307

[2019] NZHC 2056

THE QUEEN

v

QIANNAN TANG

Hearing:	21 August 2019
Appearances:	S T L Teppett for Crown G J Newell for Defendant
Sentence:	21 August 2019

SENTENCING NOTES OF WALKER J

R v TANG [2019] NZHC 2056 [21 August 2019]

Introduction

[1]                 Ms Qiannan (Christine) Tang, you appear before me today for sentencing. A jury has found you guilty of one charge of money laundering.1 The verdict relates to your receipt of NZD $54,000 from a client while working at a money remitting company. After converting those proceeds to USD, you remitted those proceeds overseas to two payees, Mr Ryszard Wilks and Mr Ralph Wilks. This was carried out at the request of the client, Mr Khan. It transpired that the money you received from Mr Khan was the proceeds of cocaine sales made by parties to a drug operation. The jury found that you were reckless as to whether that money was the proceeds of an offence.

[2]                 A conviction was not entered on delivery of the jury verdict at the request of your counsel, Mr Newell.  You  now apply for a discharge without conviction under  s 106 of the Sentencing Act 2002 (the Act). A discharge under s 106 is deemed to be an acquittal.2

[3]                 The principal ground relied on is the consequence to your immigration status. Mr Newell, on your behalf, submits there is a real and appreciable risk that a conviction will result in your deportation. He submits that this is a consequence which is out of all proportion to the gravity of the offending because of the impact on your relationship with your four-year-old son who is a New Zealand born citizen. You share custody of your son with your estranged husband who has permanent residency status.

[4]                 The Crown today advises the Court that its position is one of neutrality on the application.

Summary of result

[5]                 I begin with a summary of the result I have reached. For the reasons I will shortly set out, overall, I am satisfied that the adverse consequences of a conviction for you are out of all proportion to the gravity of your offending. The disproportion is

1      Crimes Act 1961, s 243. The maximum penalty is seven years’ imprisonment.

2      Sentencing Act 2002, s 106(2).

significant in that the impact would be devastating, in my view, to you and your son; and attributable to conviction, rather than just to the offending.

[6]  Having satisfied myself that I have jurisdiction to exercise my discretion to discharge without conviction, I determine that there are no factors which would persuade me not to exercise my discretion.

[7]                 Ms Tang, the result is now I discharge you without conviction under s 106 of the Sentencing Act. You may be seated while I deliver my full reasons for this outcome.

Factual background

[8]                 In November 2016, the National Organised Crime Group commenced an investigation into the importation and supply of cocaine in New Zealand. During the electronic surveillance phase, a Polish father and son, Ryszard Wilk and Ralph Wilk were monitored. Ryszard Wilk was in regular contact with Mr Khan. Mr Khan became involved in the offending at the behest of a Mr Andy He. Mr Khan’s role in the operation was to collect quantities of cash which he delivered to foreign exchange companies with a direction to remit the funds to overseas bank accounts. One of the three foreign exchange companies used by Mr Khan to remit funds was your employer. Mr Wilk, Mr Khan and others pleaded guilty in respect of their offending.

[9]                 You are a 26-year-old Chinese national. You came to New Zealand in 2014 on a study visa to take up post-graduate study at the University of Auckland. You graduated with a master's degree in Management in 2016. Your first job after graduation was with the money remitting firm.

[10]                  At that time, you were on a one-year open work visa and at some stage an essential skill work visa. According to advice from your immigration advisor, you had worked your way towards eligibility for a visa as a skilled migrant. I infer from your affidavit, affirmed on 8 August 2019, that your ultimate goal is permanent residency in New Zealand.

[11]                You are estranged from your husband. He lives in Auckland and, according to your affidavit, is unemployed. He is apparently a permanent New Zealand resident. You both share the care arrangements for your son on what appears to be an informal basis. Your evidence is that since your son turned four, you care for him approximately 70 percent of the time, while also holding down a full-time job. According to the pre- sentence report, dated 18 July 2019, you work from 10 am to 5 pm, five days a week. Your son attends day-care. Your employment is with an importation and distribution company importing food items from China. It involves site visits to supermarkets around Auckland. You assert that you share one-half of the childcare contribution, paying the Inland Revenue Department $80 a week for child support despite the arrangements which see you taking on the care role more than 50 percent of the time.

[12]              Your estranged husband has not provided evidence in support of this application. According to you, his support is conditional on you agreeing to give him full custody of your son.

The discretion to discharge: the law

[13]              I only have discretion to discharge an offender without conviction if the gateway test in s 107 of the Sentencing Act is met.3 Section 107 provides:

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[14]              I am required to undertake a three-step analysis to determine whether this jurisdictional threshold is met.4 I accept that there is no onus on you to establish that the consequences are disproportionate, as demanded by s 107 of the Act.

[15]                First, I must consider the gravity of the offending. In accordance with the guidance provided by the Court of Appeal, gravity is to be assessed by considering all the aggravating and mitigating factors relating to the offending and you personally.5 I am directed not to focus in isolation on the type of offence which in this case is a

3      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].

4      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]; Prasad v R [2018] NZCA 537 at [11].

5      Rahim v R [2018] NZCA 182 at [15]; Z v R [2012] NZCA 599 at [27].

serious one, as evidenced by the maximum available penalty. There is no doubt that Class A drugs cause significant harm to individuals, families and society in general. Without a means to extract commercial gains, those who deal in and import illicit drugs have no incentive to ply their trade. However, I must focus on the circumstances of your particular offending and your situation.

[16]              Secondly, I must consider the direct and indirect consequences of a conviction. I do not have to be satisfied that the given consequences – or identified consequences, would inevitably occur; it is sufficient if I am satisfied that there is a real and appreciable risk that they will happen.6

[17]              Third, I must determine whether those consequences are out of all proportion to the gravity of the offending. In regarding this third step, the Court of Appeal has said:7

It is not enough that the consequences of a conviction outweigh the gravity of the offending. Significantly more is required. The consequences must be out of all proportion to the gravity of the offending before the court has jurisdiction to grant a discharge without conviction.

[18]              Provided this threshold is met, it would be only in a rare circumstance that a Court would not exercise its discretion to grant a discharge.8

Step one: gravity of the offence

[19]              Turning to that first step, the Crown submits that your offending cannot be considered minor. The reasons given are that it involved a large sum of money and the effect was to assist serious drug offending. I note that subsequently, in discussing proportionality, the Crown has described your offending as serious although ultimately accepts that a community-based sentence is available if I am not minded to discharge you.

6      Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]; applied in DC (CA47/2013) v R [2013] NZCA 255 at [43].

7      R v Smyth [2017] NZCA 530 at [12].

8      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [12].

[20]              Your counsel, Mr Newell, describes your offending as a misguided attempt to impress your employer at your first job since graduation. He describes the gravity of this offending as moderate and the amount of money laundered as moderate relative to the overall operation. Importantly, in your affidavit you accept responsibility for your ill judgment. You say:

I accept the jury’s verdict. I should have been more careful. I was trying to impress my employer with my sales results and I put this consideration first. I did not receive any financial benefit from my offence.

[21]              I acknowledge the charge on which you were convicted did not require the Crown to establish knowledge on your part that funds you were arranging to transfer were the proceeds of crime. Rather, the charge was that you were reckless as to whether that was the case.

[22]              The assessment of gravity is an evaluative exercise that is heavily fact dependent.9 I had the benefit of presiding over the trial and hearing the evidence of your working environment, the pressures and expectations of your entry level role at the company and what was, in my view with the benefit of hindsight, insufficient supervision. Your academic qualifications do not suggest, however, that you are an easily manipulated person. You had some notice of the AML regime and multiple interactions with Mr Khan, which ought to have been sufficient to build up a picture of him and his dealings. I have balanced these factors against what may have been your reasonable expectation that your employer had safeguards in place to manage risk so that salespeople such as yourself fully understood the potential risks. Overall, I am satisfied that your offending was at the moderate end of the scale of seriousness. The fact that you did not receive any significant financial benefit from these dealings supports my conclusion.

Step two: consequences of conviction

[23]              Mr Newell submits that a conviction would impact your ability to continue working and make use of your master's degree. I am not inclined to place much weight on this consequence in isolation, although I acknowledge that the impact of a

9      Rahim v R [2018] NZCA 182 at [16].

conviction is a significant consequence on an otherwise clean record.10 It would impact future employment. I accept Mr Teppett’s submission that the likely effects on your work opportunities flow from the natural consequences of a conviction. I also consider that, in your chosen field, your involvement with the offending rather than the conviction itself is relevant, since a future employer would have a legitimate interest in your previous work history.

[24]                The impact on future employment takes on more significance, however, when seen in the context of the immigration issues that will be caused by a conviction. These are the issues which are the most important and weighty. Mr Newell’s submission is that a conviction would expose you to a real and appreciable risk of deportation and subsequent separation from your four-year-old son. The Crown responsibly acknowledges that consequences of deportation are serious concerns.

[25]              The evidence is that you have been in New Zealand on a work visa that was valid until 10 August 2019. You applied for residence under the skilled migrant category and must obtain a temporary visa to validly remain in New Zealand while your residence visa is processed.

[26]              Mr Newell has provided the Court with an affidavit from Mr Peter Moses, a specialist in immigration law. Mr Moses sets out the process that you would need to go through in order to be granted residency and a temporary work visa. I accept that Mr Moses is qualified to provide the expert opinion in his affidavit.

[27]In summary, Mr Moses expresses the opinion that if you are convicted:

(a)You would only be granted residence or a temporary visa if an exception was made (a character waiver).

(b)Based on how immigration officers typically exercise their discretion, you would have a “well below 50 percent” chance of being granted either residency or a temporary work visa.

10     Gaunt v NZ Police [2017] NZCA 590 at [15]; DC v R [2013] NZCA 255 at [44].

(c)If your residence application is declined, you can appeal to the Immigration Protection Tribunal, and also seek consideration from the Minister of Immigration for the grant of residence as an exception to immigration instructions based on ‘special circumstances’. It is unlikely that either of these options would be successful. Appeals currently take up to nine months to be determined by the Tribunal; in the interim, Mr Moses says you may have to leave New Zealand unless granted further temporary visas.

(d)He further says, that if you are not granted a temporary visa you can appeal to the Tribunal, claiming exceptional humanitarian circumstances that would make it unjust or unduly harsh for you to be deported. That test has a high threshold and because of your offending it may be considered contrary to the public interest for you to remain in New Zealand. He adds that humanitarian appeals can take months, during which time you would be in New Zealand unlawfully and not be able to work.

(e)If you are granted a discharge, Mr Moses says it would not be necessary for you to be granted a character waiver and you are unlikely to encounter any difficulties in remaining in New Zealand.

[28]                Mr Newell submits that if you have to return to China, you would be separated from your son. This would be a traumatic event for both of you, and one which could severely affect his development. Your affidavit and the affidavits from your friends suggest that you are a hardworking and dedicated mother. Your relationship with your estranged husband, with whom you share custody, appears to be difficult. Your husband holds a permanent resident visa and your son is a citizen by birth. You depose that if you are convicted and must leave New Zealand, your former husband will assert full custody of your son and would not be likely to bring him to see you in China.

[29]              The courts are not always persuaded to ‘usurp’ the authority of immigration decision-makers by taking deportation risks into account in the proportionality test.11

11     See Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011

However, it is clear that risk of deportation is a factor that the Court can take into account in special cases.12 For example, if a person’s deportation affects their spouse and children.13

[30]              More recently, the Court of Appeal has noted, and I respectfully agree, that the courts’ reluctance to intervene in immigration cases is most evident where the outcome cannot reasonably be predicted.14 I consider that it is appropriate to take into account the loss of immigration status and adverse consequences for family members, where these predicted outcomes are based on reliable evidence, focused on the particular circumstances. The unchallenged expert evidence before the Court is that it is more likely than not that you will have to leave New Zealand if convicted and, in these circumstances, there is a "real and appreciable risk" that you would be separated from your four-year-old son. Even if you were permitted to remove your son, the likely consequence is that he would then be separated from his other parent. Neither outcome is satisfactory, in my view. It is a matter of common sense that, other than in rare instances, forced parent-child separation is detrimental to a child’s mental and emotional development.

Step three: disproportionality

[31]              As I have stated, I am satisfied that the adverse consequences of a conviction for you and your dependent son are out of all proportion to the gravity of your offending. The disproportion is significant in that the impact would be devastating and attributable to conviction, rather than just to the offending.

[32]                Finally, being satisfied that I have jurisdiction to exercise my discretion to discharge without conviction, I turn to that exercise. There are no factors which would persuade me not to exercise my discretion in this case.

at [15]; A v R [2011] NZCA 328 at [30]; Ji v R [2015] NZCA 308 at [43]-[45]; Ho v R [2016]

NZCA 229 at [15].

12     George v Police [2014] NZHC 1725 at [46].

13     See Jeon v Police [2014] NZHC 66; Kumar v New Zealand Police [2015] NZHC 3293; Chand v Police [2017] NZHC 2188; Rahim v R [2018] NZCA 182 at [32].

14     Rahim v R [2018] NZCA 182 at [29].

Result

[33]              Ms Tang, these are the reasons why I have discharged you without conviction under s 106 of the Sentencing Act, today.

Observations

[34]              I now make some observations. These are not part of my sentencing decision. I acknowledge that this experience must have been very stressful for you, not least because of the uncertain impact on your son. You are obviously well educated and well qualified. You now have an opportunity to build a successful life for you and for your son. I hope that you can learn from this experience, that you will exercise better judgment in future and never again put yourself at risk of offending.

[35]I wish you and your son well. You may be seated.

[36]              Finally, I thank both counsel for their assistance and, in particular, the responsible and helpful stance of the Crown in respect of this sentencing today.

……………………………………….

Walker J