Ministry of Business Innovation and Employment v Li [2016] NZDC 3831 (3 March 2016)

Last Updated: 4 November 2016

IN THE DISTRICT COURT AT CHRISTCHURCH

CRI-2015-009-008111 [2016] NZDC 3831

MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT

Prosecutor

v

BAO LI

_Defendant

Hearing:	3 March 2016
Appearances:	C Milnes for the Prosecutor A Riches for the Defendant
Judgment:	3 March 2016

_{NOTES OF JUDGE S J O'DRISCOLL ON SENTENCING}

[1] Mr Li you appear before me today for sentence on some five charges. There are three charges under the Immigration Act 1987 and two charges under the Immigration Act 2009. The charges relate to you producing or passing off a passport knowing that it had been forged or obtained fraudulently.

[2] There is a summary of facts before me which sets out the background to your offending. It appears that your mother had been deported from New Zealand. She attempted to get back into New Zealand and it was declined. Your mother then changed your date of birth and I take it to some extent anyway your identity and obtained new passports for you and for her. Your age was also changed the summary says from an 18 year old to a 15 year old. In October 2004 your mother successfully applied for a student visa for you to study at an English language school in

_{Christchurch and then to study as a student at Burnside High School. Between}

MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT v BAO LI [2016] NZDC 3831 [3 March

2016]

October 2004 and the present day you remained in New Zealand under numerous student visas and a subsequent residence visa. At all times during this period you were aware about the false information that had been provided. On five occasions you left New Zealand and returned and used the passport which you knew to be false in order to get back into New Zealand.

[3] In terms of the aggravating factors there are the five charges which reflect entry into New Zealand on some five occasions between 2004 and 2014. The charges obviously reflect a course of conduct on your part. While the offending may not have been premeditated by you in the first instance, you were clearly aware later on what was happening by your entry and exit into New Zealand. It is clear also that as a result you received a number of benefits in New Zealand. It is unclear and no one would really know what would have happened had the changes not been made.

[4] In terms of the mitigating factors I take into account your plea of guilty. I also take into account that you have no previous convictions. I also take into account that you have established yourself in New Zealand and have not got into any other trouble. I also think that it is fair to say that initially you took and followed your mother’s lead and I think that reduces your culpability to some extent and I think that that is also reflected in the submissions that the prosecutor has filed.

[5] There is a pre-sentence report before me setting out your background and personal circumstances. You are now aged 30. You regret what has occurred. You have taken full responsibility for your actions now. The writer of the pre-sentence report has indicated that it has made an assessment that you are unlikely to re-offend.

[6] In terms of the purposes of sentencing, the general purposes of sentencing that are set out in the cases say that where it comes to issues of forgery and fraudulent passports under the Immigration Act or the passport legislation, the principle purposes of sentencing is that of denunciation and deterrence. The Courts have said that is the over-riding purpose of sentencing in these types of cases.

[7] One of the principles of sentencing is that of consistency and the Ministry of

Business Innovation and Employment have given me a number of cases where

Courts have said that appropriate starting points are imprisonment and in some cases there have been starting points of up to three years’ imprisonment upheld. The prosecutor accepts that there are factors in your case which take your case out of the ordinary. I can tell you quite clearly that if it was not for the involvement of your mother in this offending and your diminished culpability at the beginning when the false information was given, and taking the reality of it of the situation that initially it would have been very difficult for you to have put your hand up and indicated to the authorities that your mother had provided false information. If it was not for those factors, I would clearly have been looking at a sentence of imprisonment for you. But I think those matters that I have mentioned are matters that can take on a humanitarian and practical aspect to sentencing.

[8] For that reason I am going to step back from a sentence of imprisonment. I certainly think that community work is appropriate. You have heard me have discussions with the prosecutor as to whether or not community detention would achieve the purposes and principles of sentencing. I think that when I reflect on the matter that community detention is something which is in the sentencing hierarchy above a sentence of community work. It is a restrictive type sentence and I think that a sentence of community detention would in part mark the seriousness of the offending.

[9] What I intend to do on each of the charges Mr Li is to sentence you to three months’ community detention. The community detention will be served at the address set out in the appendix. I intend to impose a curfew from 7.00 pm to

7.00 am on weekends only. That is on Saturdays and Sundays. Again, it reflects your diminished culpability. I am however going to impose community work on you. The community work will reflect the gravity of the offending and my view the appropriate amount of community work for you to carry out looking at the totality of the five charges before me, your plea of guilty and the other matters that have been mentioned, the sentence of community work on each charge will be 300 hours.

S J O’Driscoll

District Court Judge