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Commonwealth of Australia v Sarker [2019] NZDC 1119 (22 January 2019)

Last Updated: 21 August 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]


NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.


NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.


IN THE DISTRICT COURT AT INVERCARGILL

I TE KŌTI-Ā-ROHE KI WAIHŌPAI
CRI-2017-009-006587

COMMONWEALTH OF AUSTRALIA
Applicant

v

[DECLAN SARKER]
Defendant

Hearing:
22 January 2019
Appearances:
S N McKenzie for the Applicant S Vidal for the Respondent
Judgment:
22 January 2019

ORAL JUDGMENT OF JUDGE B A FARNAN

[Extradition]


[1] I have before me today, an application for endorsement of a warrant to arrest in relation to charges faced by the respondent, [Declan Sarker], in Australia.

COMMONWEALTH OF AUSTRALIA v [SARKER] [2019] NZDC 1119 [22 January 2019]

[2] Such application for extradition to Australia is governed by Part 4 Extradition Act 1999 (the Act).

[3] The proceedings were filed with the New Zealand authorities in 2016 by the Commonwealth of Australia, by way of an application to extradite Mr [Sarker] from New Zealand to Western Australia to answer the following charges:

[4] These charges are all in respect of alleged offending in Perth, Western Australia, against [the victim] The offending is alleged to have occurred between the period [date deleted] 2014 and [date deleted] 2014.

[5] The details of the alleged offending are set out in the affidavit of [Detective Sergeant 1] of the Western Australian Police.

[6] The respondent opposes the making of the surrender order.

Procedure under Part 4 of the Act


[7] The following steps are required where extradition to Australia is sought:
[8] In this case the endorsement of the arrest warrant, under s 41 of the Act, was undertaken by Her Honour Judge Farish on 21 July 2017.

[9] A Judge may endorse the warrant if he or she is satisfied (under s 41(1)) that:

[10] In this case that is what occurred and the respondent was subsequently bailed, subject to conditions the Court thought was appropriate (under s 44(3)).

Determination of eligibility for surrender

1 A person is an ‘extraditable person’ if they (i) are accused of having committed an extraditable offence in a country covered by the Act, or (ii) the person has been convicted of an extradition offence, and the country wishes to impose a sentence, or a sentence imposed is yet to be served (s3). Australia is an extradition country.

2 An extradition offence is one with a maximum penalty of at least 12 months imprisonment (subject to other conditions (s4)

[11] When a respondent is brought before the Court, the Court must determine (under s45(1)) whether the person is eligible for surrender to the country seeking extradition.

[12] The respondent is eligible for surrender if under s45(2):

[13] However, a person is not eligible for surrender if they satisfy the Court under s 45(3) that:

3 The mandatory restrictions are:

[14] Additionally, the Court can also decide that the respondent not be surrendered if there is a ‘discretionary restriction’ under s 8 4.

[15] There is no requirement that the extraditing country provide evidence supporting the allegations/charges against a respondent. In determining eligibility for surrender, the Court is unable to consider evidence that the respondent has not committed the acts that the extradition is sought for (under s 45(5)). In any event, that is not argued in this case on behalf of the respondent.

[16] It is not in dispute that a warrant for the arrest of Mr [Sarker] was made in Australia, and endorsed in New Zealand by Judge Farish. Nor is it in dispute that Mr [Sarker] is an extradited person in relation to an extradition country (in this case Australia), or that the charges are extraditable offences.

[17] On that basis, Mr [Sarker] is eligible for surrender, unless he can demonstrate on the balance of probabilities, pursuant to either ss 7 and 8, that there exists a mandatory or discretionary restriction on his extradition. Otherwise the surrender order must be made, unless the Court determines there should be a referral to the Minister which is provided for under s 48(4)(a)(ii).

Background


[18] The respondent is a New Zealand citizen, being born and raised in [New Zealand location deleted]. After leaving school he worked as a [employment details deleted] before travelling overseas.

[19] Mr [Sarker] settled in Australia, [locations deleted].

4 A discretionary restriction exists if, having regard to all circumstances of the case, it would be unjust or oppressive to surrender, because of:

A discretionary restriction also exists if the respondent has been accused of an offence in New Zealand, and the proceedings have yet to be disposed of.

[20] In [year deleted] Mr [Sarker] entered into a relationship with a woman who became his first wife. They lived in [Australia] and had a [child] together. In [year deleted] Mr [Sarker] suffered a significant head injury while at work and he was not able to work for some years. That first marriage/relationship ended in [year deleted].

[21] [Details deleted] one of whom was the child against whom Mr [Sarker] has offended.

[22] While in New Zealand, Mr [Sarker] was charged and sentenced in respect of offending against that child in New Zealand, which I will discuss in more detail later in this judgment.

Psychologist’s report


[23] Mr [Sarker] engaged a clinical psychologist, Mr Craig Prince, to assist him with his opposition to the extradition application. Mr Prince has given evidence in other cases known to this Court and is well respected for his work.

[24] Mr [Sarker] told Mr Prince that after his brain injury he suffered several effects, including having a change of personality and depression, for which he was prescribed anti-depressant medication, without reported benefits. This all caused issues in Mr [Sarker]’s relationship with his first wife and they separated. It was in this context that he reported to Mr Prince that he was going to [kill himself]. Clearly, he did not do so.

[25] Mr [Sarker] was then prescribed the antidepressant, Venlafaxine, and this was reported as being a life-saving medication. He was also prescribed Testosterone, all of which had a significant positive change on his personality, mood, and level of energy. Things mostly went well for the respondent until 2014 when, with his antidepressant medication reduced, Mr [Sarker] was facing work stressors and again became depressed. It was in this context that Mr [Sarker] told Mr Prince the index offending occurred.
[26] However, at no time did Mr [Sarker] again experience suicidal ideation, not even when he was remanded in custody. Mr [Sarker] has not been admitted to any psychiatric units, nor undergone any counselling, apart from offence-specific treatment at Rolleston Prison.

[27] In his report, Mr Prince discussed that Mr [Sarker]’s main concerns against extradition were not wanting to put his victim through any legal matters again, nor wanting to go through such a process again himself. Mr [Sarker] described (now) being disheartened, after initially feeling positive about his release.

[28] Mr [Sarker] claims he would commit suicide if he were to be extradited, although he did not tell Mr Prince how he might achieve that. He said he had no fear of dying.

[29] Mr [Sarker] confirmed his belief to Mr Prince that he had already been convicted and sentenced for all of his offending.

[30] Mr [Sarker]’s father was also interviewed by Mr Prince and confirmed what the respondent told Mr Prince about his [brain injury], other life events, and the threat of suicide.

[31] Mr Prince also spoke to Mr [Sarker]’s [mental health nurse], who confirmed he remained on antidepressant medication while in prison; and although it was Mr Trimmer’s opinion that Mr [Sarker] did not want to die, one could not discount him doing such an action out of spite.

[32] Mr Prince, at para 31 in his report, confirmed that the strongest predictor of future suicide is past attempts and how dangerous or significant such events were.

[33] Mr Prince noted that Mr [Sarker]’s past behaviour appears to have occurred in the context of depression and significant life changes, and that Mr [Sarker]’s current circumstances differ (now) to those of that time.

[34] Mr Prince also noted Mr [Sarker] does not currently have symptoms associated with a major depressive disorder or other co-morbid psychiatric disorders, especially

that of substance abuse or major mental illness. Mr [Sarker] is not suffering chronic physical or emotional pain or distress. His thinking pertains only to his legal predicament.


[35] Mr Prince commented on warning signs of suicide and noted Mr [Sarker] was not thinking about this often. He has not reported or displayed a sense of hopelessness or other symptoms. There is no family history of suicide.

[36] While he has minimal social support, Mr [Sarker] has some positive outlook for the future and is capable of reality testing, Mr Prince said in his report. In Mr Prince’s opinion (at paras 36 to 42 of his report) he noted it is very difficult to assess a person’s risk of committing suicide but it is easy to feel (in this case) that Mr [Sarker] is holding the Court to ransom. Mr Prince noted Mr [Sarker] did not appear to endorse many of the common variables associated with those contemplating suicide, such as suffering from active symptoms of major depression, psychosis, chronic pain, and/or substance abuse.

[37] Mr Prince is of the view that rather than protecting his victim, he wants to avoid further sanctions for himself. Mr Prince says Mr [Sarker] is making suicide threats in the presence of a sound mind, not influenced by active symptoms of a mental disorder. In Mr Prince’s opinion, Mr [Sarker]’s risk of committing suicide if extradited should be considered to be in the moderate range. “Moderate” is defined in the Collins English Dictionary as “not extreme, temperate and is average.”

Respondent’s position


[38] As the onus of proof is on the respondent, I will deal with his position first.

[39] Mr [Sarker] opposes extradition on the basis of the specific mandatory restriction set out in s 7(e), which is the main plank of his opposition, and the discretionary restriction under s 8(b).
[40] Finally, if the Court determines the grounds are not made out to oppose the surrender order being made, the respondent seeks to have his case referred to the Minister under s 48(4)(a)(ii), as follows:

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.


[41] On 22 March 2016 the respondent was sentenced to a total of three years and nine months’ imprisonment, in respect of one charge of unlawful sexual connection by digital penetration and one charge of indecent assault. Mr [Sarker] completed this sentence without issue and undertook programmes to assist with his rehabilitation. He considered, when he was sentenced, that the Court was also sentencing him for the conduct that was alleged to have occurred in Australia.

[42] The respondent’s case under s 7(e) is that if he is extradited he will end up being punished in Australia for the same conduct he has already been punished for in New Zealand. The respondent submits that s 7(e), which refers to “the same conduct as constitutes the extradition offence,” does not limit the restriction to a person facing the same offences.

[43] The respondent submits that while the New Zealand sentencing Judge did refer to only sentencing him in respect of the New Zealand offences, the actual reality of the punishment imposed made it clear that His Honour Judge Callaghan did take into account the Australian offending when establishing a starting point and, ultimately, an end sentence.

[44] Judge Callaghan, in referring to premeditated grooming behaviour in Australia, the respondent says, did consider that conduct an aggravating feature, as set out at para 32 of His Honour’s sentencing remarks dated 22 March 2016.

[45] The respondent also submits the conduct in Australia was relied upon by the New Zealand Court to determine the nature and extent of the New Zealand offending, such that the respondent’s explanation that the offending was not skin-on-skin was rejected. Skin-on-skin offending is alleged to have occurred in Australia.
[46] Further, the respondent submits that the sentencing Judge relied upon authorities where there was an extensive history of offending by an offender, compared with this respondent who has no prior record of such offending.

[47] In respect to the s 8(1)(b) discretionary restriction, the respondent submits the surrender application sought was not made in good faith, and that in the interests of justice and having regard to all of the circumstances of Mr [Sarker]’s case, it would be unjust and oppressive to surrender him.

[48] The respondent submits that when he was sentenced the Crown referred to - and the Court heard and relied upon - conduct that occurred in Australia to convict him and sentence him.

[49] Further, the respondent relies on his suicidal ideation, which should lead the Court to conclude a discretionary ground is made out.

Applicant’s position


[50] The applicant accepts that the Australian offending which forms the basis of the Australian charges was referred to in the Crown’s submissions at the time of sentencing, but that the Crown did not specifically seek an uplift for the Australian offending because the respondent’s admissions regarding this offending had not been tested by the Court.

[51] The applicant accepts the Crown did seek to have the Australian offending counterbalance any otherwise entitlement to Mr [Sarker]’s prior good character. Nevertheless, this Crown submission was rejected, Ms McKenzie has said today, by Judge Callaghan who, in fact, gave Mr [Sarker] a 10 percent discount for good character, as well as a further discount for personal factors. Therefore, the applicant submits, the level of sentence imposed by Judge Callaghan was not elevated as a result of the Australian charges and the respondent was not punished in New Zealand for the alleged offending or conduct now the subject of the Australian charges.
[52] With respect to the s 8 restrictions, the applicant submits that the allegations in respect of the Australian offending were made in good faith; these charges are based on the respondent’s own admissions made in his DVD interview; and the respondent has neither been tried nor sentenced in respect of those admissions in New Zealand.

[53] The applicant submits the respondent’s personal circumstances are only relevant as to whether I should refer this case to the Minister under s 48(4)(ii).

[54] The applicant submits that Courts should not make such a referral to the Minister as Mr Prince concluded that the respondent did not appear to endorse many of the common variables associated with those contemplating suicide. The threats were made with a sound mind not influenced by active symptoms of mental disorder.

[55] The applicant’s counsel also refers to Mr Prince’s comment regarding Mr [Sarker] holding the Court to ransom. She submits that the respondent’s circumstances are not so compelling or extraordinary so as to render it unjust or oppressive to not surrender the respondent, as sought by the applicant.

Discussion


[56] The issue for determination by this Court is whether the respondent has shown, on the balance of probabilities, that he should not be surrendered due to either the mandatory restrictions under s 7(e), or the discretionary restriction under s 8(1)(b).

[57] If I find he should be surrendered, I need to consider a referral to the Minister.

Section 7(e)


[58] The main plank of the respondent’s case is that when he was sentenced by Judge Callaghan, the Judge penalised him for his Australian offending ([details deleted]) and thus determined an end sentence which resulted in a penalty which was excessive for the standalone New Zealand charges.

[59] However, I do not accept that Judge Callaghan, when sentencing Mr [Sarker], increased the penalty due to the Australian allegations. In my view, he simply put the

Australian allegations - [details deleted] - 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 Mr [Sarker] should have the benefit of. In giving the respondent 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.


[60] The respondent has submitted the Court should closely consider the conduct that was being punished in New Zealand and align that with the Australian allegations.

[61] I do not accept the respondent’s general proposition regarding the Australian conduct also being punished in New Zealand. A close analysis of the Australian charges (as set out in para 12 of the applicant's submissions) confirms my view.

[62] In New Zealand, the respondent was sentenced in respect of one charge of digital penetration and one representative charge of indecent assault. The Australian charges cover a raft of offending, similar in some instances (charges 3, 5 and 10) but different in others (the use of a vibrator and exposure to pornography).

[63] I also note the New Zealand offending occurred during the period October/November 2014, compared with the Australian offending which is for the period June/September 2014. This is all clearly separate and discrete offending, for which Judge Callaghan did not punish the respondent.

[64] The Judge’s starting point of five years was clearly open to him on the evidence that he heard during the course of the respondent’s Judge alone trial.

[65] Therefore, I find the respondent has not shown, on the balance of probabilities, that a mandatory restriction exists which prevents the making of the surrender order.

Section 8(1)(b)


[66] When I consider the wording of s 8(1)(b) with reference to the accusations against the person (being Mr [Sarker]) not being made in good faith, that would appear

to import a consideration of the actions of the applicant who is prosecuting the case against the respondent.


[67] There is nothing before me to suggest that these charges have been brought against Mr [Sarker] in other than in good faith. 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 respondent.

[68] I therefore agree with Ms McKenzie that the respondent’s personal circumstances, as set out in Mr Prince’s report, have little relevance to the s 8(1)(b) restriction.

[69] When I go on to consider the further provision of s 8(1), which requires the Court to have regard to all of the circumstances of the case and whether it would be unjust or oppressive to surrender Mr [Sarker], I note an earlier decision of Potter J, as detailed in the decision of Judge Farish in R v Schaapveld where Potter J noted that oppression implies very harsh, or grossly unfair conduct, crushing or trampling down another person, in derogation of that person’s rights5.

[70] I cannot conclude that is the case here, particularly in light of my findings in respect of s 7(e), but also in the light of Mr Prince concluding that Mr [Sarker]’s risk of committing suicide is in the moderate range, and the threats are made by a person of sound mind and with no active symptoms of a mental disorder, as well as Mr Prince’s comments about Mr [Sarker] holding the Court to ransom.

[71] Likewise, on the facts of this case, I cannot conclude it would be unjust to make the surrender order. That view is confirmed by the extent of the alleged Australian offending (based on the respondent’s own admissions) being much more extensive than the New Zealand offending.

[72] Like the applicant, I am of the view that the respondent’s personal circumstances have limited relevance to my assessment of the s 8(1)(b) argument. But if I am wrong, then my comments regarding whether a surrender order would be

5 R v Schaapveld [2016] NZDC 15560 at paragraph [16].

unjust or oppressive, in any event support my conclusion that the respondent has not shown, on the balance of probabilities, that his claim for a discretionary restriction is made out.


[73] In reaching this conclusion, I do not accept the respondent’s further claim that the accusations against him are an abuse of process, for all of the reasons I have already discussed.

Referral to Minister


[74] Having therefore concluded that there are no restrictions on making the surrender order as sought, I finally need to consider if there should be a referral to the Minister under s 48(4)(a)(ii), because of compelling or extraordinary circumstances of the respondent, it would be unjust or oppressive.

[75] This is essentially the same argument promoted by the respondent under s 8(1)(b) but more properly for consideration under this section.

[76] Having considered Mr Prince’s report regarding the respondent’s risk of suicide, and my consideration of whether there has been oppression or injustice to the respondent in this case, based on my earlier findings and for the same reasons, I cannot conclude there should be a referral to the Minister.

[77] Therefore, the request for a referral by the respondent is declined.

Orders


[78] Mr [Sarker], please stand. Therefore, having found that you are eligible for surrender, Mr [Sarker], I make the following orders:
[79] I now also have to inform you, Mr [Sarker], that:

[80] Having heard from Ms Vidal, who is seeking bail on behalf of the respondent, and also having heard from Ms McKenzie, I am going to grant Mr [Sarker] bail pending any determination of his rights which I have referred to. I understand that he is likely to file an appeal. Therefore, I intend to grant Mr [Sarker] bail on the following basis:

B A Farnan

District Court Judge

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