Lin v New Zealand Customs Service [2013] NZHC 3499 (18 December 2013)

Last Updated: 9 May 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000249 [2013] NZHC 3499

BETWEEN	JIARONG LIN Appellant
AND	NEW ZEALAND CUSTOMS SERVICE Respondent

Hearing:	8 October 2013
Appearances:	S Tait for Appellant L M Mills for Respondent
Judgment:	18 December 2013

_{JUDGMENT OF KEANE J}

This judgment was delivered by on 18 December 2013 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Crown Solicitor, Auckland

LIN v NEW ZEALAND CUSTOMS SERVICE [2013] NZHC 3499 [18 December 2013]

[1] On 24 April 2013, Jiarong Lin pleaded guilty in the District Court, Manukau, to knowingly importing objectionable material, files on his laptop computer and mobile telephone depicting adult women subjected to forced sexual activity and rape. He applied to be discharged without conviction.

[2] On 23 July 2013 Judge Winter heard that application. He reserved his decision and, in the note he made on the charge sheet, said he would deliver it on 16

August 2013. He remanded Mr Lin to 22 August 2013. On the latter date the Judge declined Mr Lin’s discharge application, convicted him and sentenced him to three months community detention, 100 hours community work and six months intensive supervision.

[3] Mr Lin appeals both his conviction and sentence. As to the conviction entered, he contends, the Judge failed to take sufficient account of the threat that would pose to his application for permanent residence in New Zealand, and the impact on his partner. That consequence is out of all proportion to the gravity of his offence. The sentence, he contends, is manifestly excessive.

[4] When I heard the appeal on 8 October 2013 Mr Lin’s counsel told me that on

23 July 2013, as he then recalled, he had confined his submissions to Mr Lin’s discharge application, though the Department’s counsel then went further and invited the Judge to convict Mr Lin and fine him. I directed the Registrar to obtain a transcript of that hearing and invited further submissions, once it was received.

[5] The transcript confirmed Mr Lin’s counsel’s account. The focus of the 23

July 2013 hearing was Mr Lin’s application for discharge. His counsel went no further. Had the Judge given his decision on 16 August 2013, as noted on the charge sheet, his counsel could have made submissions before the Judge imposed sentence on 22 August 2013. As it was, Mr Lin was on that latter date faced with a fait accompli.

[6] As I said to counsel, when I heard this appeal, if the Judge did sentence Mr Lin without having heard submissions on his behalf, the sentence would have to be set aside as imposed in breach of natural justice. But the Judge’s decision to decline

the discharge application was made with the benefit of Mr Lin’s counsel’s

submissions. His conviction appeal had to be resolved on its merit.

Offence

[7] On 17 June 2012, Mr Lin arrived at Auckland airport after a flight from

Singapore. He is a temporary resident of New Zealand, and was returning from an

18 day trip to China. On his New Zealand Passenger Arrival Card, he answered "No" to the question:

Are you bringing into New Zealand: Goods that may be prohibited or restricted, for example medicines, weapons, indecent publications, endangered species of flora or fauna, illicit drugs or drug paraphernalia?

[8] The fact summary describes Mr Lin as having been ‘profiled’ for ‘Customs interaction’, and that led to his luggage being searched; and that was when the video files were discovered on Mr Lin’s laptop and iPhone and he and the officer then had this exchange:

Officer: are the publications for your own use?

Mr Lin: yeah, I just downloaded from the internet. Officer: did you buy them?

Mr Lin: I just downloaded them from the internet and friends transferred some from USB.

Officer: had you watched them before coming to New Zealand? Mr Lin: yes.

Officer: what is your understanding of objectionable material? Mr Lin: I don't understand actually.

Officer: what is your understanding of rape?

Mr Lin: I think it's like you have sex and the girl don't want it.

Officer: do you have videos depicting sex with girls who don't want it?

Mr Lin: I think they are acting. I'm not sure. There are some videos I'm not really sure about. I'm not really understand [sic] about it.

Officer: have you watched any of your videos where the girls are acting like they don't want to have sex?

Mr Lin: yeah, maybe one or two.

[9] Mr Lin's laptop computer, iPhone, wireless data card and USB stick were detained by Customs. It was later established, as Mr Lin does not contest, that his computer and iPhone did contain files that, in the words of the statute, promoted or supported or tended to promote or support the use of violence or coercion to compel any person to participate or submit to sexual conduct.

[10] On 19 July 2012 Mr Lin was re-interviewed. He said that he had purchased the computer in 2012, second hand, and a friend from China must have downloaded the videos. Had he known they had been downloaded he would have deleted them. He explained the fact that the files had been accessed after he got the computer, by attributing that to a family member in China. He said that the files on his iPhone must have been put there by a friend.

[11] Later, as the Judge said on sentence, Mr Lin ‘got over his embarrassment ... [and] co-operated fully with the authorities’. He entered a guilty plea at his first appearance.

Decision under appeal

[12] The Judge declined Mr Lin’s application for discharge without conviction, having regard to Z (CA447112) v R.¹ He held that the videos were ‘at the higher end of objectionable material as each of the seven movies imported displayed force being used in the salacious rape or forced sexual activity upon adult women’. The number of times they had been accessed either by Mr Lin or by his friends was aggravating.

[13] The Judge did not consider that it made any difference that the videos might have contained simulations and not real events. He held that even if they were simulated, that ‘cannot excuse the knowing importation of objectionable publications into New Zealand’; and, whether or not they were simulated, he said:²

These are images of adult females who are forcibly restrained, undressed and then some form of sexual activity is carried out upon them in a violent

¹ _{Z (CA447112) v R [2012] NZCA 599, [2013] NZAR 142.}

² New Zealand Customs Service v Lin DC Manukau CRI-2013-92-3289, 5 August 2013 at [14].

manner. Most of them depict rape. It is apparent to the viewer that the victims do not consent to the events.

[14] The Judge held that the women filmed had suffered directly and indirectly through the production, collection and dissemination of the images;³ and that in downloading the videos Mr Lin had acted in a premeditated way. Then, speaking more generally, the Judge said this:⁴

... while the offending is not the worst of its type, the seriousness of the exploitation of females depicted, the harm of this objectionable material and persistence of access to the images describes their offending as moderately serious and moderately grave offending.

[15] A conviction, the Judge accepted, might put Mr Lin at risk of losing his job, of being deported, and of being separated from his fiancée, who does not wish to return to China. Applying R v Foox and Liang v Police, he held that the fact that a conviction might pose a risk to Mr Lin’s New Zealand residence was not of itself a

reason for discharge.⁵ The risk that he might lose his job was a natural consequence

of a conviction, proportionate to his offence.⁶

[16] The Judge rejected home detention as disproportionate to the moderate gravity of Mr Lin’s offence⁷ and the fact that he was a first offender. Though both the Department and Mr Lin’s counsel contended for a fine, the Judge imposed the sentence under appeal.

New evidence on appeal

[17] On this appeal, the Department seeks, under s 119 of the Summary Proceedings Act 1957 to rely on an affidavit from a senior immigration officer, Bruce Jenkins, whose opinion is, having reviewed Mr Lin’s offence, that a conviction will not necessarily be fatal to his residence application. It will mean that he must apply for a character waiver. Mr Jenkins also notes that Mr Lin’s fiancée has now been approved for permanent residence in New Zealand. I receive that

_{evidence unopposed.}

³ _{At [15].}

⁴ _{At [17].}

⁵ _{R v Foox [2000] NZCA 354; [2001] NZLR 641 (CA); Liang v Police HC Wellington AP38/2, 16 April 2003.}

⁶ _{New Zealand Customs Service v Lin , above n 2, at [23].}

⁷ At [28].

Discharge without conviction

[18] Section 106(1) of the Sentencing Act 2002 allows the Court to discharge an offender without conviction:

If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

[19] Section 107 limits that power in this way:

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.

[20] In Z v R⁸ the Court of Appeal held that proportionality must be assessed by a three phase process:

(a) The gravity of the offending must be identified by the reference to the facts of the case.

(b) The direct and indirect consequences must then be identified.

(c) Whether they are out of all proportion to the gravity of the offending must only then be assessed.

[21] Mr Lin carried no onus to establish that the disproportionality test had been met.⁹ It was for the Judge to decide whether it had and any persuasive onus resting on Mr Lin was only to ensure the Judge had complete information.¹⁰ Equally, in the assessment he made, the Judge needed only to be ‘satisfied’ one way or the other on reasonable grounds. He did not require proof beyond reasonable doubt.¹¹

[22] Finally, as the Court of Appeal said in Z v R, when the Judge came to assess the aggravating and mitigating factors relating to Mr Lin and his offence, he was

⁸ _{Z v R, above n 1.}

⁹ _{Brown v R [2012] NZCA 197.}

¹⁰ _{At [28].}

¹¹ Adams on Criminal Law (online looseleaf ed, Brookers) at [SA12.03].

entitled to do that at either the first or third step of the analysis.¹² Also as Asher J said in Alshami v Police, when assessing the ‘direct and indirect consequences of conviction’, the Judge did not need to conclude they would ‘inevitably or probably occur’. He had only to assess whether there was a ‘real and appreciable risk’ that they might.¹³

Grounds for discharge

[23] Mr Lin submits that the Judge erred by wrongly categorising Mr Lin's offending as moderately grave or serious, given:

(a) that the videos were of simulated rape, not actual rape;

(b) that the downloading of the files cannot have been an aggravating feature of the offence when that was an element;

(c) that Mr Lin cooperated fully with the authorities and not just as the

Judge held to a ‘certain extent’;

(d) that Mr Lin had a previously unblemished record to which the Judge accorded little or no weight.

[24] Mr Lin accepts that the issue whether following conviction he might be deported was for the Immigration Service to decide, but contends that the Judge failed to take into account the consequences if he were deported, not just for him but for his fiancée of three years, who now has permanent residence.

Conviction proper

[25] The Judge was right, I consider, to decline Mr Lin’s application for a discharge and to enter a conviction. The nature of the images Mr Lin downloaded and then accessed, standing alone, placed his offence in the moderately serious or

_{grave category.}

¹² _{Z v R, above n 1.}

¹³ Alshami v Police HC Auckland CRI-2007-404-000062 at [20].

[26] The only consequence of a conviction that might make it out of all proportion to Mr Lin’s offence was the effect it might have on his residency status, more especially now that his fiancée has residence. But a conviction will only mean that he must apply for a character waiver and, as Asher J said in Zhang v Ministry of Economic Development, ‘the Courts must assume that immigration authorities will

behave fairly and rationally’.¹⁴

[27] Mr Jenkins’ affidavit suggests that Mr Lin will be assessed as to his character in just that way. No doubt also the effect on him and on his partner if he were deported will be taken into account. I cannot then say that there is a real and appreciable risk that a conviction will lead to Mr Lin being deported. As to this issue the Judge made no error. I decline Mr Lin’s appeal against conviction.

Sentence

[28] I must, as I have said, grant Mr Lin’s sentence appeal because the Judge sentenced him without the benefit of submissions for Mr Lin. And the sentence the Judge imposed, community detention, community work and intensive supervision, has only normally been imposed for this form of offending where there are aggravating features.

[29] In New Zealand Police v Kessell,¹⁵ for example, community work and intensive supervision were imposed, where there was more considerable objectionable material and where, seven years before, the offender had been imprisoned for indecencies with young persons. In a case much closer to this, New Zealand Customs Service v Di Yang a fine was imposed.¹⁶ That is the more usual response.

[30] On sentence the Department sought a fine equivalent to that imposed in

Yang; a fine with a $1,000 starting point for each downloaded file, $7,000, reduced by 25 per cent to allow Mr Lin the full benefit of his early plea. That seems to me a

14. Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [24].

¹⁵ New Zealand Police v Kessell DC Manukau CRI-2010-092-016568, 22 November 2011.

¹⁶ _{New Zealand Customs Service v Yang DC Auckland CRI-2006-92-7202, 22 August 2007.}

proper and sufficient penalty. I quash Mr Lin’s present sentence and impose on him

_{a fine of $5,250.}

P.J. Keane J