Yang v Ministry of Business, Innovation and Employment
[2015] NZHC 1307
•10 June 2015
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF PROCEEDING. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-000262
[2015] NZHC 1307
BETWEEN ALISON YANG
Appellant
AND
MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Respondent
Hearing: 10 March 2015 Appearances:
P E Dacre QC for Appellant
A R Longdill and O M Klaassen for Respondent
Judgment:
10 June 2015
JUDGMENT OF COURTNEY J
YANG v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2015] NZHC 1307 [10 June 2015]
Introduction
[1] Between 4 July and 14 November 2011 Alison Yang, who is neither a licensed immigration adviser nor exempt from being licensed, participated in a radio broadcast programme that focused on immigration issues. The programme was conducted in Mandarin and obviously directed towards the local Chinese community. Each programme included a general discussion about a particular topic and then an opportunity for callers to telephone the programme with questions. Ms Yang conducted both aspects of the programme, occasionally referring questions to her son, a licensed immigration adviser, who was present throughout the broadcasts.
[2] Following a defended hearing in the Auckland District Court Judge EM Aitken found that Ms Yang had held herself out as a person who provided immigration advice contrary to s 64(1) of the Immigration Advisers Licensing Act 2007 (IALA) and had provided immigration advice contrary to s 63(1)(a) when she was neither licensed to provide advice nor exempt from holding a licence and knowing that she was required to be licensed or exempt.1 Ms Yang appeals this decision on the ground that her actions did not fall within the meaning of “immigration advice” in the IALA.
[3] Judge Aitken refused Ms Yang’s application for discharge without conviction, convicting and fining her $5,000 on each charge.2 Ms Yang appeals the refusal to grant a discharge without conviction on the grounds that the Judge wrongly rejected her assertion of genuine belief that she was entitled to undertake the programme the way she did and proceeded to sentence without giving her the opportunity for a disputed facts hearing. She appeals the fine on the ground that it is manifestly excessive.3 Finally, Ms Yang also appeals the Judge’s refusal to grant permanent name suppression.4
Immigration Advisers Licensing Act 2007
[4]Section 63 of IALA relevantly provides:
1 Immigration Advisers Authority v Yang DC Auckland CRI-2013-004-2413, 5 March 2014.
2 New Zealand Police v Yang DC Auckland CRI-2013-004-2413, 16 July 2014.
3 The maximum penalty for an offence under s 63(1)(a) is imprisonment for seven years or a fine of $100,000 or both (s 63(4)); for an offence under s 64(1) the maximum is imprisonment for two years or a fine of $10,000 or both (s 64(4)).
4 Interim name suppression was granted pending disposition of this appeal.
(1)A person commits an offence if the person—
(a)provides immigration advice without being licensed to do so under this Act or exempt from the requirement to be so licensed, knowing that he or she is required to be licensed or exempt; or
…
(2) For the purposes of subsection (1)(a), a person is deemed to know that he or she is required to be licensed or exempt if, at any time within the 12 months preceding the date of the alleged offence, that person had been informed of that fact in writing by the Registrar or a person appointed to the Authority.
[5]Section 64 of IALA relevantly provides:
(1) A person commits an offence who holds out that any person (including the person himself or herself) who is neither licensed under this Act to provide immigration advice, nor exempt from the requirement to be licensed to do so, provides immigration advice, knowing that the person is neither licensed nor exempt.
(2) For the purposes of subsection (1), a person charged with an offence under this section is deemed to know that the person held out as providing immigration advice was neither licensed nor exempt if, at any time within the 12 months preceding the date of the alleged offence, the person charged had been informed of that fact in writing by the Registrar or a person appointed to the Authority.
(3) A person does not commit an offence under subsection (1) by holding out that the person provides immigration advice if the person is a body corporate or other entity that is in the business of providing immigration advice through persons who are licensed or exempt from the requirement to be licensed.
[6]“Immigration advice” is defined:5
(a)Means using, or purporting to use, knowledge of or experience in immigration to advise, direct, assist, or represent another person in regard to an immigration matter relating to New Zealand, whether directly or indirectly and whether or not for gain or reward; but
(b)Does not include –
(i)providing information that is publicly available, or that is prepared or made available by the Department; or
(ii)directing a person to the Minister or the Department, or to an immigration officer or a refugee and protection officer (within the meaning of the Immigration Act 2009), or to a list of licensed immigration advisers; or
5 Section 7.
(iii)carrying out clerical work, translation or interpreting services or settlement services.
[7]“Immigration matter” is also defined:6
… any matter arising under or concerning the application of the Immigration Act 2009 (including any regulations or instructions made under that Act); and includes
(a)an application or potential application for a residence class visa, temporary entry class visa, or transit visa;
(b)a request or potential request for a special direction;
(c)a claim for recognition as a refugee or a protected person, and any related appeal or matter;
(d)a matter relating to immigration sponsorship;
(e)a matter relating to an immigration obligation;
(f)an appeal in relation to an immigration matter.
Appeal against Judge Aitken’s finding that Ms Yang was guilty
[8] Although the appeal against conviction was treated in argument as relating to Judge Aitken’s decision of 5 March 2014 (and, clearly, the conviction was entered on the basis of the findings in that judgment), the conviction was in fact entered following the refusal to discharge Ms Yang without conviction. At this stage I address only the conclusions that the Judge reached in her decision and consider the issue of conviction later, in relation to the appeal against the refusal to discharge without conviction.
The District Court hearing
[9] The events giving rise to the charges were not in dispute. Ms Yang is a director of Sea Consultants & Investment Ltd, which provides immigration advice. She agreed on behalf of the company to produce a radio programme to promote and advertise Sea Consultants’ services. Senior management at the radio station told her that a licensed immigration adviser had to be present during each broadcast.
6 Section 5.
[10] The broadcasts ran on a Monday evening between 7 and 8 pm. Four of the broadcasts were recorded, these being on 5, 19 and 26 September and 3 October 2011. Transcripts were provided for those programmes. Each began with a promotion of Sea Consultants and a statement that “Miss Fan” had returned to the programme at “audience request”. Ms Yang was Miss Fan. There was a general discussion about an immigration topic after which callers were invited to phone Miss Fan with questions which she answered.
[11] Judge Aitken referred to the definition of “immigration matter” and the dictionary definitions of the words “advise, direct, assist, or represent” (which are not defined in the IALA). She noted Ms Yang’s assertion that she was merely providing general publicly available information about immigration law and policies and concluded that:7
Section 5 in its definition of immigration matters also invites a broad interpretation including as it does a non-exhaustive list of, effectively, examples of what might be included under the definition. However, it is a broad definition meaning “any matter arising under or concerning the application of the Immigration Act …”
Adopting the common usage of the terms “advise” and “assist”, the question might be rephrased as “Did the defendant, using her knowledge and experience of immigration matters, offer suggestions about the best course of action to someone, or help someone with any matter, concerning the application of the Immigration Act?”
Without any doubt I am satisfied that she did. The unchallenged context of the four radio programmes put this, in my view, beyond doubt.
[12]On the charge under s 63(1)(a) the Judge concluded that:8
There can be no doubt at all that on numerous occasions during the relevant period, the defendant is providing immigration advice and assistance using her knowledge and experience of immigration matters. That is self-evident from the transcript as set out in the examples above.
Her son is present with her. As noted, he is a licensed immigration adviser. But he does not give advice, except infrequently when asked. The defendant does not ask him for advice before responding to callers. She does not seek his assistance at all in the examples given above. The fact of his presence alone does not assist the defendant in avoiding criminal liability.
7 At [43]-[45].
8 At [74]-[76].
The evidence before me is overwhelming. I am satisfied that the informant has proved the charge beyond reasonable doubt.
[13]The Judge then dealt with the charge under s 64(1):9
I am also satisfied that this charge is proved beyond reasonable doubt. Each programme commenced with the company’s advertisement, as noted previously. Miss Fan, the defendant, is described as “co-hosting” the programme with “licensed immigration consultant Jerry”.
She refers frequently to her experience in the course of the programmes and in the course of giving advice. While on occasion she suggested a caller follow up with further inquiry at the company offices (the programmes is, after all, an advertising slot) she frequently gives immigration advice to callers.
Again, I am left in no doubt that given the way the company is described, the defendant’s role in the company, her role in the broadcasts, the nature of the advice she provides over a range of topics and the fact that she is accompanied by her son who is, on each occasion, described as a licensed immigration adviser, that the defendant both held herself out and intended to hold herself out as a person providing immigration advice.
Section s 63: Did Ms Yang advise or assist?
[14] Ms Yang does not dispute that she used or purported to use knowledge of or experience in immigration in conducting the broadcasts. She does not dispute that the information she gave in the broadcasts was given in regards to an immigration matter relating to New Zealand. The sole ground of appeal is that Ms Yang did not provide immigration advice because she did not “advise, direct, assist or represent another person”.
[15] Mr Dacre QC, for Ms Yang, submitted that the Judge adopted too broad an interpretation of those words. His starting point was the general purposive approach to statutory interpretation, which applies to all statutes including criminal ones. He relied particularly on the observations made by Elias CJ in Morse v Police:10
The meaning of s 4(1)(a) [of the Summary Offences Act 1981] is to be ascertained from its text and purpose (as s 5 of the Interpretation Act 1999 directs), and consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act (as s 6 of that Act requires wherever an enactment can be given such a meaning). Since s 4(1)(a) describes a criminal offence, its interpretation should conform to the principle that criminal law must be certain. As with all enactments, it is also necessary for the meaning of s
9 At [77]-[79].
10 Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1at [12].
4(1)(a) to be consistent with developing community attitudes, so that the provision may apply to “circumstances as they arise”, as s 6 of the Interpretation Act requires. Other aids to interpretation include the legislative history of the provision …
[16] Ms Longdill, for the Ministry of Business, Innovation and Employment, acknowledged that this was the correct approach, noting, too, that if there is a genuine doubt as to the meaning and purpose of the provision the defendant is to be given the benefit of that doubt.11 However, she argued that there could not be any doubt as to the intended width of the wording in this case.
[17]The purpose of the Act is set out in s 3:
The purpose of this Act is to promote and protect the interests of consumers receiving immigration advice, and to enhance the reputation of New Zealand as a migration destination, by providing for the regulation of persons who give immigration advice.
[18] The explanatory note to the Immigration Advisers Licensing Bill shows that the IALA was intended to provide better protection for those using immigration advisers than was conferred by the voluntary self-regulation that then existed.12 Particular concern was expressed during parliamentary debates regarding some immigration agents who had wrongly confiscated passports, received large sums of money without providing any or adequate service and failed to follow instructions.
[19] Mr Dacre submitted that the IALA was directed at unqualified advisers advancing applications through the immigration system. He provided dictionary definitions for the words “advise, direct, assist, or represent” and submitted that, if read in the context of the Immigration Act 2009 and the regime surrounding immigration matters:
(a)“advice” would cover the giving of a formal opinion or an opinion which is given on the understanding that a person would act upon it, but it would not cover the situation where background or general information was given;
11 Transport Ministsry v Quirke [1977] 2 NZLR 497 (CA).
12 Immigration Advisers Licensing Bill (270-1) explanatory note) at 12-13.
(b)“direct” would involve an instruction to take a particular course of action;
(c)“assist” would mean to take positive steps to enable an application to be made rather than simply providing information;
(d)“represent” would cover the situation where a person held herself out to act for or represent an applicant.
[20]Mr Dacre submitted that there were a number of circumstances indicating that
Ms Yang’s actions should not be regarded as falling within s 63(1)(a). These included:
(a)the programme was designed to encourage callers and listeners to instruct Sea Consultants;
(b)the company itself operated within the Act;
(c)it was a public broadcast;
(d)callers did not identify themselves;
(e)there was no attempt to take full instructions, with calls lasting only a few minutes;
(f)Ms Yang never claimed to be an adviser;
(g)the programme clearly distinguished between Ms Yang’s role, her son’s status as an immigration adviser and the role of the company;
(h)callers were invited to contact the company;
(i)immigration applications can only be filed either in person or by a representative such as a solicitor or qualified immigration adviser;
(j)although Ms Yang discussed individual cases her comments were not sufficient to provide the basis of an application to Immigration New Zealand. Rather, the purpose of the broadcast was to encourage the use of licensed immigration advisers.
[21] It is evident from [44] of her judgment that the Judge considered that Ms Yang had advised and assisted rather than directed or represented. I therefore do not need to consider the meaning of the latter terms.
[22] The relevant dictionary definitions of advise (to offer counsel, to give advice) and advice (opinion given or offered as to action) do not in themselves suggest actions that are limited in the way Mr Dacre suggested. Nor could the words properly be read in such a restrictive manner having regard to the evident purpose of s 63(1)(a) or of the Act. Section 63(1)(a) is cast in extremely wide terms. In particular, it captures advice given directly or indirectly and whether or not for reward. This suggests that advice given informally will fall within the scope of s 63(1)(a).
[23] Likewise, the relevant dictionary definition of assist (to aid or help) does not carry any connotation of taking actual steps to enable an application to be made. The same point as I made in relation to “advise” applies; the fact that indirect assistance given for no reward falls within the scope of s 63(1)(a) strongly indicates that the word is not to be given a restrictive meaning and is not to be confined to conduct of a formal nature.
[24] Whilst it is undoubtedly true that during the general part of the broadcast Ms Yang discussed issues that were unrelated to any particular case and, as a result, could not properly be viewed as advising or assisting another person in relation to an immigration matter, the latter half of the programmes, in which she fielded enquiries and questions from individual callers, is an entirely different matter. It is apparent from the transcript of those calls that very specific enquiries were made of Ms Yang about individuals and their circumstances or those of their friends and family. These calls were directed to immigration matters and the information that Ms Yang imparted was plainly intended to and did have the effect of advising and/or assisting the callers. I do not consider that the Judge made any error in her interpretation of s 63(1)(a).
[25] Even if Ms Yang did advise or assist in relation to an immigration matter, she would not have contravened the Act if she gave only information that was publicly available.13 Mr Dacre submitted that the programme was essentially an infomercial with its purpose being to attract business for Sea Consultants and that Ms Yang did no more than convey what was publicly available.
[26] The IALA does not provide any guidance as to what constitutes publicly available information and this issue was identified during parliamentary debates by Kate Wilkinson MP:14
The Bill says that immigration advice does not include providing information that is publicly available or that is prepared or made available by the Department. But the entire operations manual is available to the public, and the entire legislation is available to the public. The appeal and the other case decisions are available to the public. So what exactly is not available to the public? What exactly is the immigration advice that one must be licensed or exempt to provide?
[27] Mr Dacre put before me an extract from the Immigration Advisers Authority website which states:
Giving immigration advice is more than providing information. It means giving guidance or direction that is tailored specifically for another person’s circumstances using your knowledge and/or experience of immigration. It involves providing a range of options and evaluating those options based on the person’s circumstances. It could include giving the person direction on the best way to fill in forms and answering questions to achieve an immigration outcome.
[28] Mr Dacre pointed out that the programme was a public forum at which individuals were not identified and submitted that nothing Ms Yang said could have actually resulted in steps being taken; if any individual wished to take matters further they would have to seek advice from a licensed immigration adviser who could prepare the necessary documents. The programme did no more than facilitate a conversation about immigration matters and provide general information. He also submitted that there was a clear distinction between the roles that Ms Yang and her son took in the programme.
13 Section 7(b).
14 (13 December 2005) 628 NZPD 1013.
[29] I do not see any error in the Judge’s conclusion that Ms Yang gave advice on an immigration matter. Whilst much of what she said was publicly available information, it is evident from the transcript that she also gave some advice that was directed towards the caller’s specific circumstances and upon which the caller could act. For example, in the transcript of the 5 September 2011 programme Ms Yang is recorded as telling a caller who is in New Zealand on a nine-month visa that she must return to China if she wants to apply for an 18-month visa. In the programme on 19 September 2011 the transcript shows that Ms Yang responded to a caller’s inquiry about whether their parents who were coming for a visit could extend their visas for up to 12 months by advising that the caller should get her parents to have x-rays done in order to obtain a visa extension.
[30] There was no suggestion that any of the advice Ms Yang gave was incorrect. But it was certainly advice upon which the callers could have acted without any further reference to an immigration adviser.
Section 64: Did Ms Yang hold herself out as a licensed immigration adviser?
[31] It is evident from my discussion to date that the Judge was also correct in her conclusion regarding s 64. The transcripts clearly show that Ms Yang, as Miss Fan, did hold herself out as being a licensed immigration adviser. It is true that there was reference in the programmes to “Miss Fan and licensed adviser Jerry” and that “Miss Fan” was not, herself, described as a licensed immigration adviser. However, the overall impression was clearly that Miss Fan was a licensed immigration adviser; “licensed adviser Jerry” was referred to only occasionally15 and there was also reference to the fact that “Miss Fan has a large team”.16 It is significant that Ms Yang dominated the discussions, answering virtually all of the specific questions that were put.
15 E.g. the transcript from the broadcast on 5 September 2011.
16 Broadcast 5 September 2011.
Appeal against refusal to discharge without conviction
[32] In determining Ms Yang’s application for a discharge without conviction the Judge followed the test set out in s 107 of the Sentencing Act 2002. She considered the gravity of the offending, the consequences of a conviction and whether those consequences would be out of all proportion to the gravity of the offence.
Gravity of the offending
[33] The Judge noted the scale of the offending although this was, to some extent, uncertain. The programmes ran for four months but only the four recorded broadcasts provided specific evidence of breaches of ss 63 and 64. There was no clear evidence as to the probable number of listeners. The Judge also noted that the programme functioned, in part, as a promotion for Sea Consultants.
[34] The Judge identified a number of aggravating factors. She did not accept (for the reasons already canvassed) that no one in the audience could have changed their position on the basis of Ms Yang’s advice and regarded as aggravating the fact that Ms Yang suggested to at least one caller that he or she remain in New Zealand by applying for a student visa to study English when there was no suggestion that the caller had any genuine interest in doing so.
[35] More significantly, the Judge rejected Ms Yang’s claim that she took steps to stay within the law, describing the offending as blatant and premeditated. The basis for the Judge’s view was as follows. Ms Yang had participated in similar programmes several years ago. In 2009 she had received a letter advising her of the requirements of the new immigration licensing regime and in May of that year was interviewed by the Immigration Advisers Authority regarding the radio programme. The Authority then wrote to Ms Yang reiterating that she had been giving advice on the radio while neither licensed to do so or exempt from holding a licence and that it was an offence to do so. Apparently a further letter was sent in October 2010 reminding Ms Yang of the need to be licensed in order to provide immigration advice. It was this history that led the Judge to conclude that Ms Yang’s conduct was moderate to highly culpable. In addition, the Judge did not accept Ms Yang’s claim of remorse.
Consequences of conviction
[36] The Judge then turned to consider Ms Yang’s personal circumstances. Ms Yang had clearly had some difficult times since arriving in New Zealand in 1995. She initially came without her son and, though he has now joined her in New Zealand, most of her family remain in China. The Judge accepted that Ms Yang had worked hard, was at low risk of re-offending and had contributed substantially to her wider community.
[37] The specific consequences Ms Yang advanced were the damage to her reputation, the effect on her mental health and the impact on future travel. Whilst the Judge accepted that the fact of a conviction would become known within Ms Yang’s community, including those who might seek immigration advice, she was satisfied that the charges were already known to influential members of her community and, to the extent that they were not, those seeking immigration advice were entitled to be aware of her conduct. As a result, the Judge did not place significant weight on this consequence.
[38] There was evidence before the Court regarding Ms Yang’s mental health and it was evident that she had suffered significant stress and associated health problems as a result of the proceedings. The Judge accepted, too, that if a conviction was entered that may increase the stress on her and adversely impact her mental health.
[39] The Judge did not consider that the impact on Ms Yang’s ability to travel would be significant. Although she has previously travelled with ease as a New Zealand citizen, the use of her New Zealand passport to return to China to visit family would be complicated by the need to apply for a visa. However, that did not create an absolute bar to returning and, in any event, Ms Yang holds a Chinese passport valid until 2020.
[40] Finally, the Judge accepted that there could well be an adverse financial impact on Sea Consultants Ltd if a conviction were entered and that information became public, but she found that this was not disproportionate to the offending.
Proportionality
[41]On the issue of proportionality the Judge concluded that:17
… I am not persuaded that the defendant will be significantly damaged in terms of her reputation by this offending … It is not the sort of offending that carries any adverse moral inferences, it is offending but of a much more straightforward type. In short, if convictions are entered it will be for giving immigration advice without a licence. The defendant has a reputation as being someone who gives advice and support in her community and has done for a good many years. On the one hand she claims that she will lose face but on the other hand in light of her reputation I have reached the view that there is a very good chance that her community will regard this offending as simply an extension of her efforts to assist others in the absence of there being any evidence of fraudulent or dishonest behaviour.
It follows from that that if there is a disproportionate consequence of entry of a conviction it is the claim of an adverse impact on this defendant’s mental health. I acknowledge her son’s affidavit, he worries that there is a risk to his mother’s life if she is convicted and certainly in the evidence from her general practitioner he or she stresses that the proceedings have had an enormous effect on her such that she has in the past contemplated suicide …
It is not an easy factor for a Judge to weigh up but on the evidence before me I have reached the view that if the entry of a conviction does cause this defendant to suffer further significant distress then she has access to health care and there is no reason to conclude and no evidence before me from which I could conclude that she will not both have access to and get appropriate care in all of the circumstances. In short, I am not persuaded that the consequences of these convictions would be out of all proportion to the gravity of this offending.
The offending was in breach of the immigration licensing regime. The purpose of introducing the need for immigration advisers to be licensed was to ensure both a standard of advice and protection for the public who seek advice, that public being generally regarded as vulnerable. In that context this was blatant, premeditated offending. She knew the conduct had been deemed to be unlawful and that she knew she was not licensed and ignored the warnings of prosecution. If the defendant suffers social consequences because she deliberately flouted the law, and I am not persuaded that she will, they are not disproportionate. If her business suffers financial consequences they are not disproportionate. If her personal reaction to the conviction causes further anxiety she has a lot of personal support, she did access the health services in the past and there is no reason to conclude she will not be able to do so again. She has chosen in the past not to accept their advice in terms of medication or consultations but that is a matter for her. The medical evidence before me falls short of satisfying me that she currently suffers from any mental health issues that are so profound that she would be unable to access treatment should she choose to do so. In all of the circumstances I have reached the view that a conviction must be entered.
(emphasis added)
17 At [21]-[24].
Appeal against refusal to grant discharge without conviction
[42] Mr Dacre submitted that the Judge wrongly assessed Ms Yang’s culpability as being high when, in fact, it should have been regarded as low because of Ms Yang’s genuine belief that she was entitled to conduct the programme as she did. In particular, he referred to the Judge’s statement at [7] that she was not persuaded that Ms Yang had taken sufficient or, indeed, any steps to remain within the law, referring to the various communications from Immigration New Zealand that I outlined earlier. Mr Dacre submitted that if the Judge considered that this was a matter that would affect sentencing she should have advised counsel so that the possibility of a disputed facts hearing could have been considered.18
[43] Section 24(2)(c) of the Sentencing Act 2002 requires that, where a fact relevant to sentencing or other disposition of the case is disputed by the defence, the prosecution must prove the existence of the fact beyond reasonable doubt. It is evident that the Judge regarded Ms Yang’s deliberate flouting of the law as an aggravating factor. I have concerns over the basis for this assessment. Ms Yang did not give evidence at the hearing. A sales executive for the company that broadcast the programme gave evidence of a conversation with Ms Yang following the change to licensing rules in 2009. The sales executive knew that Ms Yang did not hold a licence and said “but my company knew their company had a licensed adviser. My requirement was the licensed adviser must be on the programme.”
[44] Ms Yang’s son, Jerry Cheung, also gave evidence. He holds a law degree and was the licensed immigration adviser who participated in the programme with Ms Yang. He gave evidence of discussions he had with his mother in 2011 about how the programme would be conducted following the change to the immigration advisers licensing requirements. He said:
A:I believe eventually it was agreed that we may start the programme again with the condition that I came along or a licensed immigration adviser came along before they will allow the open calling session to be permitted. So it was agreed that I will come along for every session and as long as I was there the open calling session will be available that night.
18 Sentencing Act 2002, s 24.
Q: To the best of [your] knowledge did you go along to all the sessions? A: Yes I did.
Q: Did you give your mother any instructions?
A: Yes I specifically told her that under the Immigration Advisers Act she cannot provide immigration advice as defined under s 7 of the Act.
Q: Did you have any interest in the situation regarding her and yourself?
A:Yes of course. I mean I have a personal interest to make sure she doesn’t commit any offences under the Act because I was aware of the punishments. Also there is the interests of the company as well. We want to make sure that our reputation is kept as professional as possible.
Q: What was the purpose of the programme?
A:It was a commercial advertisement. I mean we paid for the segment with a contra obviously and essentially what we want is to get recognition of our company’s name so that people who have actual immigration matters will come to our company and then we will have a business.
[45] This evidence did not provide a sufficient basis on which to find beyond reasonable doubt that Ms Yang did not genuinely believe she was entitled to conduct the programme the way she did. To the contrary, it tended to suggest that there was a basis on which Ms Yang might genuinely have believed that she could conduct the programme as she did provided she had a licensed immigration consultant present.
[46] Ms Yang’s belief was plainly an issue relevant to sentencing which would influence both the application for discharge without conviction and any fine ultimately imposed; given the medical evidence regarding Ms Yang’s mental health, the assessment of her culpability had the potential to significantly affect the sentencing outcome. It therefore fell within s 24(2) of the Sentencing Act and the Court was required to indicate to the parties the weight likely to attach to this disputed fact and its significance to the sentence.
[47] The courses open to me are to either attempt to resolve the disputed fact myself or remit it to the District Court for a further hearing. Previous cases, with which I agree, have concluded that on an appeal against sentence this Court may hold a disputed facts hearing under s 24 of the Sentencing Act by virtue of the combined
effect of s 121(1) and s 119(3) of the Summary Proceedings Act 1957.19 However, the disadvantage in that course is that no general right of appeal lies from a finding made in such a hearing.20 The alternative is remission of the matter to the District Court for rehearing under s 131 of the Summary Proceedings Act. I consider this to be the appropriate course in this case.
[48] This conclusion will result in the setting aside of the Judge’s refusal to discharge without conviction and, consequently, there is no need to separately consider the appeal against sentence.
Result
[49] The appeal against the findings in Judge Aitken’s decision dated 5 March 2014 is dismissed.
[50] The decision refusing the application for discharge without conviction is set aside and the conviction quashed. The matter is remitted to the District Court for a disputed facts hearing under s 24 of the Sentencing Act.
[51] The order for name suppression will continue until final disposition of the matter.
P Courtney J
19 See e.g. Hook v NZ Police HC Wellington CRI-2005-485-60, 15 June 2005; see also, under the Criminal Procedure Act 2011 Sione Tuato v Police [2014] NZHC 626; Ostler v R [2012] NZHC 1656.
20 E H Cochrane Ltd v Ministry of Transport [1997] 1 NZLR 146, 154.
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