MOHAMMED V NEW ZEALAND CUSTOMS SERVICE HC AK CRI 2009-404-56 [2009] NZHC 651 (29 May 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                         CRI 2009-404-56



              BETWEEN                      AMIR MOHAMMED
                                           Appellant

              AND
                         NEW ZEALAND CUSTOMS SERVICE
                                           Respondent


Hearing:      26 May
2009

Appearances: A A Rasheed for the appellant
             L Farmer for the respondent

Judgment:     29 May 2009 at 2.30 p.m.


                          JUDGMENT OF POTTER J
                    on appeal against conviction and sentence




             
          In accordance with r 11.5 High Court Rules
                       I direct the Registrar to endorse this judgment
    
                with a delivery time of 2.30 p.m. on 29 May 2009.




Solicitors:   Crown Solicitor, P O Box 2213, Auckland 1140

Copy to:      A A Rasheed, P O Box 97-057, Manukau City, Auckland 2241




MOHAMMED V NEW ZEALAND CUSTOMS SERVICE HC AK CRI 2009-404-56
29 May 2009
Introduction


[1]    The appellant entered a guilty plea in the District Court to a single charge that
he was knowingly
concerned in the importation into New Zealand of a good the
importation of which is prohibited under s 54 of the Customs & Excise
Act 1996.
The charge was brought under s 209(1A) of that Act and related to computer movie
files of bestiality being an objectionable
publication within the meaning of the Films,
Videos & Publications Classification Act 1993.


[2]    Section 209(5) of the Customs
& Excise Act provides a penalty of
imprisonment for a term not exceeding five years in the case of an individual who
commits an offence
against subsection (1A).


[3]    The appellant was charged on 30 May 2008. He entered a guilty plea on 8
September 2008. He was
sentenced by Judge Radford in the District Court at
Manukau on 28 January 2009 to a fine of $2,000 together with Court costs of $130.
The Judge declined an application for discharge without conviction under s 106 of
the Sentencing Act 2002 ("the Act").


[4]    The
appellant now appeals and seeks a discharge without conviction.


Appeal against conviction and sentence


[5]    The notice of appeal
filed by the appellant is against sentence. The Crown
noted in submissions that this Court has held an appeal against a refusal to
discharge
an offender pursuant to s 106 is an appeal against conviction and sentence:
Rutherford v Papakura District Council HC AK
CRI 2005-404-162 20 September
2005, Allan J.


[6]    As Allan J noted at [11] of his judgment, under s 115 of the Summary
Proceedings
Act 1957 a party has a right of appeal to this Court against conviction
and/or sentence. In that case, where there was an appeal
against a decision of the
District Court declining to discharge without conviction, Allan J treated the appeal
against sentence
as an appeal against both conviction and sentence. He referred to
this procedure being followed in the interests of justice in Dickey
v Police HC AK
A112/02 3 September 2002 and Gascoigne v Police HC AK AP304/93 11 February
1994.


[7]     Without opposition from
the Crown, I propose to follow the same procedure
in this case. It is inconsistent for an appellant, who is seeking on appeal a discharge
without conviction, to not appeal against the conviction entered in the lower court.


[8]     I accordingly amend the notice of
appeal to incorporate an appeal against
conviction. There is no prejudice to the respondent in adopting this course, as Mr
Farmer
properly acknowledged.


The offending


[9]     The summary of facts on the basis of which the appellant entered the guilty
plea
records that on 14 March 2008 the appellant arrived at Auckland International
Airport on a flight from Australia. His baggage was
searched by Customs. The
search revealed an external hard-drive, a USB drive, a mobile phone and a CD wallet
containing 21 optical
disks. The external hard-drive was found to contain movie
files which depicted adult males and females having sex with dogs and horses.


[10]    In an affidavit filed
in the District Court proceedings and confirmed in an
affidavit filed in this Court, the appellant explains the circumstances in
which this
offending arose. He deposes that he has lived in New Zealand since 1985 when he
arrived here as a one year old. In 2008
he went to Pakistan for a holiday with family,
and to get married. In his home town of Mardan he met with a group of male
friends.
He says that "some of the boys" had been asking him to do "silly things"
because he was about to get married and he would not be
able to do "anything silly"
after that.


[11]    A friend suggested they go to the website which contained the videos and
images
found on the appellant's hard-drive at Auckland Airport. He had his external
hard-drive connected because of other ("normal") videos
and photographs from New
Zealand they had been watching that day. He said he went to that site, that he found
it disgusting, and
was "a bit freaked out". He says that others present were also
disgusted, but curious at the same time. They did not watch the videos
for very long
and most walked away from the computer. He felt unsure what to do and a bit
pressured because he "wanted to fit in
with the local boys". He says that the friend
whose idea it was to access the videos then turned the computer off and the group
left.
He claims he did not think much of it afterwards because he was engaged in
other things. Essentially he forgot about the videos on
his hard-drive and was
"totally embarrassed" when the files were pointed out to him at Auckland Airport.
He says that when he was
charged he was shocked and that he was not aware what
he did was illegal, "... but that sounds stupid to me now that I know it is".


The District Court judgment


[12]   In describing the offending at [2], the Judge said the files involved "people
interacting
with animals in possibly the most disgusting fashion it is possible to
imagine".


[13]   He identified the purposes of sentencing
as being to hold the appellant
accountable for his offending; to promote a sense of responsibility for and
acknowledgement of the
harm done; to denounce the conduct; and to deter the
appellant and others from committing similar offences in future.


[14]   The
Judge did not identify any aggravating factors of the offending. He
referred to relevant mitigating factors as including the appellant's
guilty plea and his
co-operation. He noted the appellant has no previous convictions.


[15]   In relation to the appellant's application
for a discharge under s 106 of the
Act, the Judge referred to the provisions of s 107:

       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.
[16]   Dealing first with the gravity of the offence, he said that the importation
into
New Zealand of exploitive material is very serious indeed and noted that Parliament
has seen fit to provide a maximum penalty
of five years' imprisonment for what is:

       ... a serious and grave offence, and one which is not to be brushed under the
 
     carpet or regarded as a modest offence. (at [11])

[17]   The Judge next considered the direct and indirect consequences of
a
conviction for the appellant. He noted that every conviction or plea of guilty has
consequences. He accepted the appellant was
obviously a man of good character
apart from this conviction and that he was studying to be a pilot with the hope in the
future to
undertake commercial pilot activities which would involve travelling in
New Zealand and flying planes overseas. He said:

      
... if you intended to be an international pilot and that was your ambition,
       you might have been more careful about the way
in which you travel with
       material of this kind, or indeed any other incriminating material. You ...
       appear to have been singularly careless about safeguarding your reputation.
       (at [15])

[18]   He distinguished between a situation where a conviction may constitute a
barrier to the commencement or
continuation of a particular occupation and when a
conviction would result in an absolute bar, being a factor which carries extra
weight.
He said that where an independent body is charged with determining the suitability
of individuals for particular employment
that decision is best left and appropriately
left to that body. He said it would be:

       ... nonsense for this court to hide
material which might have a significant
       bearing on whether you are a fit and proper person. (at [17])

[19]   As to questions
of overseas travel, he said that was much for the future,
which he regarded as less significant in this particular case.


[20] 
 In deciding whether the consequences of a conviction were out of all
proportion to the gravity of the offending. The Judge referred
to the decision of the
Court of Appeal, in R v Hughes  [2008] NZCA 546, that the ordinary meaning of the
words in s 107 is to be applied. He considered the gravity of the offence to be "very
high indeed"
and that the consequences of a conviction would not necessarily
exclude the appellant from undertaking his chosen career, which he
had not yet taken
up. He concluded that the consequences would not be out of all proportion to the
gravity of the offending, and
accordingly declined the appellant's application for
discharge without conviction.


Grounds of appeal


[21]   The appellant appeals
against the decision of the District Court Judge in
refusing to discharge him without conviction on the grounds that the Judge erred
in:


       a)     Fixing the gravity of the offence as serious in the circumstances of
              this offending;


       b)
    Failing to give proper consideration to the consequences of conviction
              for the appellant; and


       c)     Failing
to give proper consideration to the appellant's personal
              circumstances.


Sections 106 and 107 Sentencing Act 2002


[22]   Before turning to consider the grounds of appeal it is necessary to examine
the provisions of ss 106 and 107 of the Act.


[23]   Section 106 of the Act confers on the Court a discretion to discharge an
offender without conviction unless any enactment
applicable to the offence requires
the imposition of a minimum sentence. A discharge under s 106 is deemed to be an
acquittal.


[24]   Section 107 provides:

       Guidance for discharge without conviction

       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.
[25]   The Court of Appeal stated in R v Hughes at [8]:

       Although the heading
in s 107 refers to "Guidance for discharge without
       conviction", it is clear from the words of the section that the requirement
in
       s 107 is mandatory. Before a court may exercise its discretion under s 106 to
       discharge without conviction, the
court must be satisfied that the
       consequences of a conviction would be out of all proportion to the gravity of
       the
offence. Section 107 thus provides a gateway through which any
       discharge without conviction must pass. It stipulates a pre-condition
to
       exercise of the discretion under s 106.

[26]   The Court determined at [41] that application of the disproportionality
test
under s 107 requires consideration of all relevant circumstances of the offence, the
offending and the offender, and the wider
interests of the community, including the
factors required by the Act to be taken into account under ss 7, 8, 9 and 10. Having
taken
account of those factors the Judge must determine whether the s 107 test is met
and whether it is appropriate for an order to be
made under s 106 to deal with the
offender.


Onus of proof


[27]   The judgment in Hughes also confirms there is no onus on the
offender to
establish that the disproportionality test has been met.          In terms of s 107 the
requirement is that "the Court
is satisfied" it has been met. Section 107 imports no
onus of proof. The sentencing Judge can assess all information that is relevant
to the
disproportionality analysis. The requirement is simply for the Court to be satisfied
that the disproportionality test has
been met. However, the Court said it could be
expected in the normal run of things that an offender seeking a s 106 discharge
would
put before the Court information, which if accepted, would provide a basis for
the Judge to be satisfied that the s 107 test is met
and that a decision in the offender's
favour under s 106 is appropriate (at [53]).


Approach on appeal


[28]   The Court of Appeal
also clarified in Hughes that whether the Court is
satisfied the s 107 threshold has been met is a matter requiring judicial assessment
which can be subject to appeal on normal appellate principles: R v Rajamani  [2008]
1 NZLR 723 (SC) at [5]. The Court's discretion arises under s 106 only when the
Court is satisfied that the disproportionality test under s
107 has been met.


[29]   Accordingly in terms of Austin, Nichols & Co Inc v Stichting Lodestar [2008]
2 NZLR 141 (SC) at [16]:

       Those exercising general rights of appeal are entitled to judgment in
       accordance with the opinion of the appellate
court, even where that opinion
       is an assessment of fact and degree and entails a value judgment. If the
       appellate court's
opinion is different from the conclusion of the tribunal
       appealed from, then the decision under appeal is wrong in the only
sense that
       matters, even if it was a conclusion on which minds might reasonably differ.
       In such circumstances it is
an error for the High Court to defer to the lower
       Court's assessment of the acceptability and weight to be accorded to the
       evidence, rather than forming its own opinion.

[30]   Thus, I turn to the disproportionality test under s 107, to reach my
own
conclusion as to whether it is satisfied so that the Court's discretion to discharge
without conviction under s 106 may be invoked.
A three step approach was set out
by Richardson J in Fisheries Inspector v Turner  [1978] 2 NZLR 233 (CA) as further
explained in Police v Roberts  [1991] 1 NZLR 205 (CA), and is now provided in
s 107. The Court is to consider first, the gravity of the offending; second, the direct
and indirect
consequences of conviction; third, whether the consequences would be
"out of all proportion" to the gravity of the offending. This
was the approach applied
by Judge Radford in the District Court. But, in accordance with Austin, Nichols, I
approach afresh the assessment
of the disproportionality test in this case.


Gravity of the offending


[31]   There can be no doubt that the offence of which
the appellant was convicted
is a serious one, indicated by the maximum penalty of five years' imprisonment
fixed by Parliament, as
Judge Radford observed.


[32]   However, in having regard to the gravity of the offence the Court must
consider not only the nature
of the offence and the gravity with which it is viewed by
Parliament, but also the seriousness of the particular offending, the circumstances
of
the particular offender and anything that may affect the Court's assessment of overall
culpability. In Delaney & Ors v Police
HC WN CRI 2005-485-2228 22 April 2005,
Miller J said at [29]:

       ... I consider that "the gravity of the offence" should be
read as including
       not only the offence itself but also anything that may affect the Court's
       subsequent assessment of
overall culpability. That includes guilty pleas,
       expressions of remorse and the Court's assessment of how likely it is that
the
       offender will reoffend, the victim's perspective and any consequences
       already suffered by way of reparation, community
work, or publicity.

[33]   In Hughes at [38] the Court of Appeal said the approach taken by Miller J in
Delaney and in a subsequent
case, Montgomery v Police HC PN CRI 2005-454-70
11 April 2006, is supported by the application of the factors in s 8, 9 and 10 of
the
Sentencing Act. Further, that the inclusion within the concept of "gravity of the
offence" of matters affecting overall culpability
is also supported by similar wording
in s 8(1) where "gravity of the offending" is said to be inclusive of "the degree of
culpability
of the offender".


[34]   The offending in this case arose out of a situation where the appellant was on
a visit to Pakistan and,
prior to his marriage, was involved in a social gathering with
his peer group which may be likened to a "stag party" in New Zealand.
It was in this
environment that the objectionable material was downloaded to his hard-drive and
was left there when the friend who
had proposed viewing the material, turned off the
computer, and the group left. It reflects very poorly on the appellant that he
allowed
himself to be involved in the activity. Further, he was careless to the extent he left
the images on his hard-drive. But
it is clear that he now has no illusions about the
inappropriateness of his conduct, and is disgusted by it. He has provided a report
from a registered psychologist S G Sullivan, dated 18 May 2009, in which the
psychologist in concluding remarks says of the appellant:

       His anger and shame expressed towards his mistake and to the casualness
       with which he risked his intended career,
and attitude towards continued use
       of pornography, all appear genuine. Pornography addiction is often
       associated with
stressful lives, low self esteem, poor socialisation skills
       (especially with the other gender), and poor coping skills. These
don't
       appear to apply to Mr Mohammed, whereas the explanation of unthinking
       and risky viewing by his cousins in a Muslim
setting that conflicted with
       strictures that appeared to be often flouted by young men, appears possible.
[35]   The appellant
is aged 25. He has been married for over a year. Since the
hearing in the District Court he has completed his Commercial Pilot examinations
and has filed an affidavit dated 21 May 2009 exhibiting his exam results. He
explains in an earlier affidavit that he had to stop
studying for his exams for a period
to help in his father's grocery store because the family ran short of money for fees.
However, he worked to
save enough money to resume his studies at the Ardmore
Flying School and complete the examinations to obtain his qualification.


[36]   I accept the appellant is extremely remorseful for his offending. He states:

       I have been as ashamed as anyone could
be since the time of the incident at
       the airport.

[37]   He acknowledges concern for the animals involved in the images depicted
in
the pornographic videos and has made a donation of $100 to the SPCA. He has also
made a donation to his local mosque and a letter
from the secretary/trustee of the
Mount Roskill Islamic Trust confirms his involvement with the mosque and his
voluntary assistance
with young people in the community.


[38]   The appellant entered a guilty plea which while not at the earliest
opportunity, was
an early plea pre-depositions.             He has clearly accepted
responsibility for his offending and has shown his willingness
to be accountable for
it. He has no previous convictions and I accept it is unlikely he will re-offend. The
shame and humiliation
he has experienced since his arrest, and particularly with his
family, I believe have been very salutary for him.


[39]   The Crown
stressed the knowledge element in s 209(1A), contrasting it with
s 209(1)(a) which does not require a knowledge element. It is an
absolute liability
offence carrying a maximum penalty of a fine not exceeding $5,000: s 209(3)
Customs & Excise Act.       The Crown
submitted that the element of knowledge
contributes to the gravity of the offence. The appellant accepts he had knowledge of
the
objectionable material on the hard-drive of his computer, but there is no evidence
or suggestion his knowledge was coupled with any
intention to use the imported
material for commercial advantage or to exploit it in any way. His explanation is
that he forgot it
was there.       All the circumstances of the offending indicate
regrettable stupidity and carelessness rather than criminal intent.


[40]   Thus, while the offence under s 209(1A) is a undoubtedly a serious offence, I
consider the appellant's culpability in the
offending to be at a lower level of
seriousness than did the District Court Judge. I disagree that the gravity of the
offending is
"very high indeed".


Direct and indirect consequences of a conviction


[41]   Mr Rasheed submitted that the consequences of any
conviction are of real
significance given the appellant's career path, he having now completed all of his
commercial pilot examinations.
He said the offence not only involves contravening
law at border entry but in circumstances where such offending could be considered
morally repugnant. He submitted these factors would inevitably impact on decision-
making where issues of visa and travel-related
applications are in issue, and the
reality is that authorities or parties taking those decisions will not have the wealth of
information
presently before the Court which explains the background and
circumstances of the offending.


[42]   He submitted the conviction
was likely to have consequences at all stages and
in all aspects of the appellant's future career including, but not limited to:


       a)      On application for a Commercial Pilot's licence;


       b)      On application for an Airline Transport Pilot's
licence;


       c)      On application for employment as a pilot;


       d)      On application for employment as a Captain (in
future); and


       e)      In connection with criminal and/or aviation security clearances for
               airlines, boarder
security agencies and other checks required at
               international ports.
[43]     While acknowledging the entry of a conviction
would be of "some
consequence" in terms of the appellant's future employment, the Crown submitted
the entry of a conviction would
not appear, on the available evidence, to preclude the
appellant's ability to obtain employment as a commercial pilot.


[44]     The Crown also submitted that a discharge
without conviction would not
place the appellant in a position of being able to meet the requirements for entry to
foreign states
likely to be in contemplation in his capacity as a commercial airline
pilot.


[45]     Counsel referred to the example given by
the appellant in relation to security
checks preparatory to a visa waiver being granted to facilitate travel for air crew
members,
where the relevant guidelines designate that if a "Person is arrested, tried,
and acquitted", the situation is not considered as
a conviction for the purpose of
criminal history records checks. The Crown noted that procedure is directed at
security clearance
within airports. By comparison, the visa waiver scheme for the
United States renders inadmissible "any alien convicted of, or who
admits having
committed, or who admits committing acts which constitute the essential elements of
... a crime involving moral turpitude
...".


[46]     The appellant's future career as a commercial pilot is likely to be inextricably
associated with the requirement
to travel overseas and to gain access to foreign
jurisdictions. From the information provided, it is clear that a discharge without
conviction will not exonerate the appellant from the necessity to disclose and explain
to some relevant authorities the fact of this
criminal offending and the circumstances
of it. However, under s 106(2) of the Act, a discharge from conviction is deemed to
be an
acquittal which I accept would prove significant for the appellant in relation to
a career as a commercial pilot. While I accept
the impediment of a conviction for
the appellant in that career would constitute barriers rather than an absolute bar, the
barriers
would be significant.
Are the direct and indirect consequences of a conviction out of all proportion to
the gravity of the offence?


[47]   I turn to the balancing exercise which is necessary to address the third step of
the test under s 107.


[48]   In relation
to the first step I have assessed that while the offence to which the
appellant pleaded guilty is undoubtedly very serious, taking
into account the
circumstances of the offending and all the circumstances relating to the offender, the
overall culpability of the
offending is less grave.


[49]   On the other hand, the nature and seriousness of the consequences of a
conviction and the likelihood
of these occurring given the prospective career of the
appellant as a commercial pilot, I assess as significant. I approach the assessment
of
the nature and seriousness of the direct and indirect consequences not on the basis
that they would inevitably or even probably
occur but rather that there is a real and
appreciable risk that such consequences would occur; Iosefa v Police HC CHCH
CIV 2005-409-64
21 April 2005, Randerson J; Alshamsi v Police HC AK CRI 2007-
404-62 15 June 2007, Asher J.


[50]   The requirements for entry to
foreign jurisdictions and travel are inevitably
linked with the career for which Mr Mohammed has recently qualified and which he
is intent on pursuing. There is a real and appreciable risk that the consequences of a
conviction for border offending in respect
of an objectionable publication would
impact on the appellant's ability to meet those requirements in a singular way, and I
consider,
to a disproportionate extent.


[51]   I therefore conclude that the direct and indirect consequences of a conviction
on the charge
under s 209(1A) of the Customs & Excise Act 1996 to which the
appellant has pleaded guilty would be out of all proportion to the
gravity of that
offence.
Result


[52]     I am satisfied the test under s 107 of the Act is met in the circumstances of
this case.


[53]     For the same reasons as have satisfied me the s 107 test is met in this case. I
consider it is appropriate that the Court's
discretion be exercised to discharge the
appellant without conviction.


[54]     The appeal is allowed. The appellant is discharged without conviction under
s 106 of the Act.