S v Commonwealth of Australia
[2019] NZHC 1635
•16 July 2019
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2019-425-000007
[2019] NZHC 1635
BETWEEN S
Appellant
AND
THE COMMONWEALTH OF AUSTRALIA
Respondent
Hearing: 2 July 2019 Appearances:
S Vidal for the Appellant
S McKenzie for the Respondent
Judgment:
16 July 2019
JUDGMENT OF NATION J
To avoid identification of the victim, certain information has been redacted.
[1] The appellant appeals a District Court decision that he be extradited to Australia to answer 12 charges relating to sexual offending against B […].1 He appeals on the basis that he has already been punished in New Zealand for what he submits is the same offending.
1 Commonwealth of Australia v S […].
S v THE COMMONWEALTH OF AUSTRALIA [2019] NZHC 1635 [16 July 2019]
Background
[2] The appellant is a New Zealand citizen. He settled in Australia where he married and had a son. During his marriage, the appellant suffered a significant head injury at work and was not able to work for some years. […]
[3] The appellant, […], moved from Australia to New Zealand in October 2014. The appellant was later charged with several sexual offences against B that were allegedly committed in New Zealand in November 2014. After plea negotiations, the appellant pleaded guilty to one charge of unlawful sexual connection and one charge of indecent assault. These charges related to one instance of offending on 21 November 2014, where B […] sat on his lap. She touched his penis which he allowed to continue for some minutes before moving her so he could touch her in the vaginal area and inserted his finger into her vagina.
[4] In B’s Police interview, she described the appellant offending against her in Australia in the months before the appellant moved to New Zealand. The appellant admitted that was the case in his Police interview. The alleged offending in Australia, as he described it, was more serious than the offending in New Zealand. There were about 20 occasions where he used his fingers in and around her vagina and clitoris area, and sometimes B touched his penis. He also said in Australia he had used a vibrator against B’s clitoris whilst he rubbed her vagina, and that they were watching pornographic videos at that time (the Australian offending).
[5] How to treat the Australian offending was an ongoing issue in the proceedings against the appellant. The Crown made a pre-trial application for the admission of the appellant’s admitted Australian offending as propensity evidence in the trial of the New Zealand charges. Judge Phillips held that the Australian offending would be admissible in the forthcoming Judge-alone trial.
[6] At sentencing on 22 March 2016, the Crown submitted that the Australian offending should be treated as an aggravating factor to be taken into account when fixing a starting point and said it would be artificial for the sentencing Judge to
disregard it. Judge Callaghan recorded that he was conscious that the appellant was for sentence only on the two New Zealand charges, but said:2
[32] I consider the incidents that occurred in Australia are aggravating factors, in effect, a grooming-type behaviour. They also show there was some premeditation in the type of offending you were prepared to conduct, and the victim was very vulnerable in respect of what was occurring.
[7] Judge Callaghan sentenced the appellant to three years and nine months’ imprisonment.
[8] On 14 July 2016, an arrest warrant was issued by Magistrate Brian Charles Gluestein sitting at the Magistrates’ Court of Western Australia against the appellant in relation to:
(a) five charges of indecent dealing with a child […];
(b) five charges of sexual penetration of a child […];
(c) one charge of encouraging a child to engage in sexual behaviour […]; and
(d) one charge of persistent sexual conduct with a child under 16 years.
[9] The charges arise from the appellant’s alleged sexual offending against B in Perth between 1 June 2014 and 30 September 2014. The arrest warrant was endorsed by Judge Farish on 21 July 2017. Australia sought the appellant’s extradition for him to answer those charges. The appellant opposed extradition.
Extradition law
[10] This application for extradition to Australia is governed by pt 4 of the Extradition Act 1999 (the Act). As set out by Judge Farnan in the decision under appeal, the following steps are required:
(a) A warrant to arrest being issued by the Australian authorities (as was done on 14 July 2016);
2 R v S [2016] NZDC 4803.
(b) Endorsement of the arrest warrant (s 41(1) of the Act);
(c) Determination of eligibility for surrender (s 45 of the Act);
(d) Consideration as to whether the case should be referred to the Minister (s 48(4));
(e) Issue of a warrant of detention, if the Court is satisfied that the person is eligible for surrender (s 46) and a referral to the Minister is not granted; and
(f) The making of a surrender order.
[11] The arrest warrant was endorsed by Judge Farish in July 2017 as her Honour considered the statutory conditions under s 41(1) were satisfied, namely:
(a) The appellant was, or was suspected to be, in New Zealand; and
(b) There were reasonable grounds to believe that:
(i)the appellant was an “extraditable person” in relation to Australia, having been accused of committing an extradition offence against Australian law;3 and
(ii)the offences the appellant was accused of committing are “extradition offences”, as they are punishable under Australian law by a maximum penalty of over 12 months’ imprisonment, and the alleged conduct would have amounted to an offence in New Zealand punishable by a maximum penalty of over 12 months’ imprisonment.4
[12] As permitted by s 41(2), the police arrested the appellant and he was bailed under s 44(3).
3 Extradition Act 1999, s 3.
4 Extradition Act, s 4.
[13] The steps after endorsement of the warrant, above at [10](c) to (f), were the subject of Judge Farnan’s decision under appeal. The main issue was determining the appellant’s eligibility for surrender under s 45 of the Act.
[14]Under s 45(2), a person is eligible for surrender if:
(a) They are the subject of an endorsed warrant (which the appellant was); and
(b) The Court is satisfied (as opposed to the “there are reasonable grounds to believe” under s 41(1)) that:
(i)they are an extraditable person in relation to the extradition country; and
(ii)the offences are extradition offences.
[15]The appellant did not dispute that he satisfies these criteria.
[16] A person is not eligible for surrender if they satisfy the Court under s 45(3) that a “mandatory restriction” applies under s 7. The appellant submitted that a mandatory restriction on surrender applies to him, namely s 7(e) which prevents a person being eligible for surrender if they have “undergone punishment provided by the law of… New Zealand, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence”.
[17] The Court can also decide that a person is not to be surrendered if a “discretionary restriction” applies under s 8. In the District Court, the appellant submitted that s 8(1)(b) applies to him, which provides that:
A discretionary restriction on surrender exists if, because of –
…
(b) the person is accused of an offence, the fact that the accusation against the person was not made in good faith in the interests of justice; …
and having regard to all the circumstances of the case, it would be unjust or oppressive to surrender the person.
[18] As such, the appellant was eligible for surrender unless he could demonstrate on the balance of probabilities, pursuant to either s 7(e) or s 8(1)(b), that a restriction on his surrender existed. Otherwise the surrender order had to be made,5 unless the Court determined the case should be referred to the Minister under s 48(4)(a)(ii), because:
… it appears to the court in any proceedings under section 45 that… because of compelling or extraordinary circumstances of the person, including, without limitation, those relating to the age or health of the person, it would be unjust or oppressive to surrender the person before the expiration of a particular period …
District Court judgment
Discretionary restriction under s 8(1)(b)
[19] Judge Farnan rejected the appellant’s argument that the charges had not been brought in good faith, saying “during the course of this hearing there was no attack on the honesty of the Australian authorities or their intention to deal fairly with” the appellant.
[20] Judge Farnan considered his personal circumstances, referring to a detailed report provided for the appellant from a psychologist with information as to the appellant’s personal circumstances, in particular an asserted possible risk of suicide. She held his personal circumstances could not be taken into account in considering the application of s 8(1)(b) and that, in any event, those circumstances would not render surrender unjust or oppressive.
Referral to the Minister under s 48(4)(a)(ii)
[21] The Judge, for similar reasons, also decided not to refer the appellant’s case to the Minister. The Judge did not find there were compelling or extraordinary circumstances that would make extradition unjust or oppressive. While the appellant’s personal circumstances were more properly to be considered under this section, the Judge decided there would be no oppression or injustice to the appellant so as to require a referral to the Minister.
5 Extradition Act, s 47(1).
Mandatory restriction on surrender under s 7(e)
[22] Judge Farnan rejected the appellant’s argument that the sentencing Judge punished him for the Australian offending. In Judge Farnan’s view, the sentencing Judge:
… simply put the Australian allegations – which were accepted, in any event, by [the appellant] – in context, as part of the background to the New Zealand offending. While he did refer to the Australian offending as an aggravating factor in the nature of grooming, he also put to one side those allegations when he was considering what appropriate discounts [the appellant] should have the benefit of. In giving the [appellant] a 10 percent discount for no prior record, the Judge was not accepting the Crown submission that, because of the Australian offending, no discount should be given.
[23] Judge Farnan noted the differences between the New Zealand offending and the Australian offending, both in time and in type. The Australian offending was between June and September 2014, with a clear delineation from the New Zealand offending in November 2014. Judge Farnan called the Australian offending “clearly separate and discrete offending, for which Judge Callaghan did not punish” the appellant. The Australian charges also involved allegations about use of a vibrator and exposure to pornography which distinguish them from the New Zealand offending. The Judge noted too that the starting point of five years’ imprisonment for just the New Zealand offending “was clearly open to” the sentencing Judge.
[24] As such, the Judge did not accept that the appellant had “undergone punishment provided by the law of… New Zealand, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence” as provided by s 7(e), and thus the submitted mandatory restriction on surrender did not apply.
[25] Judge Farnan issued a warrant of detention and made a surrender order. The Judge released the appellant on bail.
Submissions
[26] Ms Vidal’s submissions for the appellant focused on s 7(e), submitting that the mandatory restriction applied because he had already been punished in New Zealand for the offending. She submitted that the extradition process the appellant is subject
to involves “the ultimate violation of an individual’s right by the State, the power to remove the individual, against their wish and surrender that person to a foreign state”. The legislation prevents a New Zealand court from hearing evidence about the allegations when it is Australia seeking extradition, which is not the case for several other countries. Ms Vidal submitted that this process “removes the individual’s rights to know the case against them, to challenge that case, the right of freedom of movement and the right not to be arbitrarily arrested or detained”. As the process is contrary to the civil and political rights of the individual set out in the New Zealand Bill of Rights Act 1990, she submitted a narrow and conservative interpretation to s 45 should be taken, and a liberal broad interpretation taken to the restriction on surrender provisions in s 7.
[27] In her written submissions, Ms Vidal also submitted that the seeking of the order for surrender was an abuse of court process because the Crown in New Zealand sought to have the Australian offending taken into account at sentencing, and still went on to advise the Australian authorities and seek extradition. That submission was not developed orally before me. It was not suggested that this meant the Judge was in error in the determination she reached on her consideration of either s 8(1)(b) or s 48(4)(a)(ii). I note the arrest warrant was issued by a Magistrate against the appellant on 14 July 2016, only four months after the appellant was sentenced for the New Zealand offending.
[28] In summary, Ms Vidal submitted “the complainant is the same, the offending is the same and the appellant has been punished for that offending… to apply s 7(e) in such a way as to determine that this is not the case would be inconsistent with the New Zealand Bill of Rights Act”.
[29] Ms Vidal stressed that, for s 7(e) to apply, the appellant does not have to show he was “sentenced” for the same offending. What he has to show is that he was “punished” for the same offending. Ms Vidal submitted that whether he was punished for the same offending is not to be determined by an assessment as to whether the sentence imposed for the New Zealand offending was within the available range of sentence for that offending. It should be determined by considering what the Judge said as to how he arrived at his eventual sentence. She submitted that it was apparent
from para [32] of the Judge’s sentencing remarks6 that he had taken the Australian offending into account as an aggravating factor which thus meant the starting point he adopted for the appellant’s New Zealand offending of five years’ imprisonment was higher than it would otherwise have been if there was no punishment for the Australian offending.
[30]The submissions for the Crown are reflected in my analysis as set out below.
The legal context
[31] The appellant has jurisdiction to appeal the determination that he is eligible for surrender only on an erroneous point of law.7
[32]The powers of the Court on appeal are set out in s 72 Extradition Act as follows:
72 Powers of court on appeal
(1)The High Court must hear and determine the question or questions of law arising on any case transmitted to it, and do 1 or more of the following things:
(a)reverse, confirm, or amend the determination in respect of which the case has been stated:
(b)remit the determination to the District Court for reconsideration together with the opinion of the High Court on the determination:
(c)remit the determination to the District Court with a direction that the proceedings to determine whether the person is eligible for surrender be reheard:
(d)make any other order in relation to the determination that it thinks fit.
(2)In hearing and determining the question or questions of law arising on any case transmitted to it, the court—
(a)must not have regard to any evidence of a fact or opinion that was not before the District Court when it made the determination appealed against; and
(b)may in the same proceeding hear and determine any application for a writ of habeas corpus made in respect of the detention of the person whose surrender is sought.
6 Reproduced above at [6].
7 Extradition Act, s 68.
[33] In Tukaki v District Court at Tauranga, Moore J heard an appeal against a District Court decision making an order for surrender under the Extradition Act.8 As was noted there, the guiding principles for the appeal are those contained in the Court of Appeal judgment in Brown v R where the Court held that, in order to constitute a question of law, the question must raise one or more of the following errors:9
(a) misdirection of law apparent in the decision;
(b) failure to take into account a relevant matter, or taking into account an irrelevant matter; or
(c) a factual finding unsupported by any evidence or an omission to draw an inference of fact that is the only inference reasonably possible on the evidence.
[34] In neither the notice of appeal nor submissions of counsel did the appellant here identify the point of law on which it was submitted the District Court Judge had been in error. With the way the appeal proceeded, I find the only errors of law that could be advanced were:
(a) did the Judge fail to take into account that the appellant had been punished in New Zealand for the Australian offending with which he is now being charged; and
(b) in finding the appellant had not been punished for the Australian offending, did the Judge make a finding which was not supported by any evidence?
Analysis
[35] Judge Callaghan began his sentencing remarks by saying that the appellant was appearing on two charges, one of unlawful sexual connection which involved digital penetration of the victim on 21 November 2014, and a charge of indecent assault which occurred at the same time. In referring to the summary of facts for the offending for
8 Tukaki v District Court at Tauranga [2017] NZHC 843.
9 Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at [16].
which the appellant was being sentenced, the Judge referred to the offending occurring when she was alone with the appellant […] in New Zealand […]. The charges the appellant faces in Australia relate to alleged offending between 1 June 2014 and 30 September 2014, so the offending in Australia was distinct in time and place from the offending in New Zealand for which Judge Callaghan was sentencing him.
[36] The Judge referred to the aggravating features of the offending being abuse of trust, victim vulnerability and the premeditation in the offending. He then said “[t]hat is evidenced from what had occurred in Australia in the lead up to what occurred in New Zealand, for which you are for sentence today”.10 In the latter part of the sentencing remarks, the Judge indicated that what happened in Australia was only background and it was what occurred in New Zealand for which the appellant was to be sentenced. He did refer to the background conduct involving indecencies in Australia and said that could be seen as “grooming the behaviour” of the victim but then went on to say “having said that, I am conscious of the fact you are for sentence only on the charges” as to the New Zealand offending.
[37] With the way the Judge took the Australian conduct into account as grooming- type behaviour, indicative of premeditation of the New Zealand offending, the Judge was careful not to find there had been criminal offending in Australia. To the extent the Judge referred to the Australian incidents as “grooming-type behaviour” he was not dealing with that Australian conduct as the criminal offending the appellant is now charged with.
[38] The charges the appellant faces as to the Australian offending include five charges of sexual penetration of a child and five charges of indecent dealing with a child. The Australian offending is distinct in nature and extent from the offending for which the appellant was sentenced in New Zealand. As charged, the alleged Australian offending is not just “grooming”. Although the Judge referred to that grooming conduct as being an aggravating feature of the New Zealand offending, I consider this was taken into account only through the way the Judge treated the New Zealand offending as being premeditated.
10 R v S, above n 2, at [28].
[39] I am also not satisfied that the Judge’s reference to the appellant’s grooming conduct in Australia resulted in any real uplift in the starting point for the offending to an extent it could be said the ultimate sentence imposed included punishment for the Australian offending.
[40] In its submissions on sentencing, the Crown had put the Court of Appeal’s judgment in D v R at the forefront of its submission that a starting point of five years was appropriate.11 In D v R, the Court was concerned with an offender who had been convicted of one charge of unlawful sexual connection involving digital penetration of his daughter who was aged around five or six. The end sentence of five years, arrived at, after adopting a five year starting point, was upheld on appeal. That was the starting point which Judge Callaghan adopted when he sentenced the appellant.
[41] In considering adjustments to the starting point, the Judge discussed a possible discount in ways that indicated he was not bringing the Australian offending into account. He said that if the appellant was being sentenced for all matters then he would have been entitled to seek a discount for his prior good character. He went on to say that:
If you are to face the charges that are alleged to have occurred in Australia, then similarly you would be entitled to claim a discount for good character because [the offending for which he was sentencing the appellant] post dates the offences for which you would be sentenced in Australia.
[42] Taking those factors into account, the Judge allowed a 10 per cent discount for good character. He could not have decided on that discount if he was intending to punish the appellant for the Australian offending.
[43] Analysing the way in which the appellant was sentenced, I cannot be satisfied that the appellant has been punished in New Zealand for the offending with which he is charged in Australia. There was thus no error in Judge Farnan’s decision when she reached the same conclusion.
11 D v R [2014] NZCA 373.
[44] I thus find that Judge Farnan took proper account of s 7(e) Extradition Act, and the conclusion she reached with regard to s 7(e) was a finding that was supported by the evidence before her. There was thus no error of law in the decision she made.
[45] The appeal is dismissed. The appellant remains subject to the surrender order made in the District Court and the warrant for his detention in a penal institution pending surrender to Australia.
Solicitors:
Southern Law, Invercargill
Preston Russell Law, Invercargill.