Khan v Ministry of Business, Innovation and Employment [2014] NZHC 2947 (24 November 2014)

Last Updated: 23 February 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-404-000343 [2014] NZHC 2947

BETWEEN	IMRAAN KHAN Appellant
AND	MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent

Hearing:	24 November 2014
Appearances:	J L Holden for Appellant L M Mills for Respondent
Judgment:	24 November 2014

(ORAL) JUDGMENT OF ANDREWS J [Appeal against sentence]

KHAN v R [2014] NZHC 2947 [24 November 2014]

Introduction

[1] On 1 October 2014, the appellant, Mr Imraan Khan, was sentenced in the District Court at Auckland to imprisonment for 20 months having earlier pleaded guilty following a sentence indication given on 13 August 2014, to one charge of producing an identity document as relating to himself knowing it related to someone else, and six charges of knowingly supplying false or misleading information to an immigration officer. He now appeals against his sentence.

Background

[2] Mr Khan is a Fijian national. He arrived lawfully in New Zealand on

25 May 2001. He visited a number of times on visitor’s permits and also on student permits. In October 2008 he applied for a work visa which was granted on his arrival in New Zealand on 14 March 2009. He applied for another work permit on

25 September 2009 on the basis of his relationship with a New Zealand citizen, Ms Mafoe. He applied for another work permit on 20 August 2010 on the basis of that same relationship and it was granted. The information supplied for that application was the basis for a charge of supplying information to an immigration officer knowing it to be false or misleading.

[3] On 23 June 2011, Mr Khan lodged a residency application, again on the basis of his relationship with Ms Mafoe. The information supplied for that application was the basis for a further charge of supplying information to an immigration officer knowing it to be false or misleading in a material respect. While his residency application was being processed Mr Khan applied for a further two work visas on the basis of his relationship with Ms Mafoe. That formed the basis for two further charges of supplying information to an immigration officer knowing it to be false or misleading.

[4] Ms Mafoe was interviewed. She said that although she was married to Mr Khan she was not in a relationship with him and their marriage was one of convenience, for immigration purposes. As a result of this information Mr Khan’s residency application was declined.

[5] Mr Khan departed from New Zealand on 5 January 2012. He was prohibited from returning to New Zealand for five years.

[6] On 26 February 2012, Mr Khan applied to visit New Zealand in the name Zalman Emran Acraman. Immigration New Zealand Fiji branch discovered that Mr Khan had changed his name by way of deed poll. His application to visit was declined.

[7] On 8 April 2014, Immigration New Zealand received information that Mr Khan was in New Zealand living with his partner, Ms Williams. A search warrant was executed at the address. Mr Khan stated that he was Alyaiz Jerome Mallam. Inquiries revealed that Mr Khan had applied for a visa under that name and had arrived in New Zealand and presented a passport in that name. The presentation of the passport formed the basis of a charge of producing an identity document as relating to himself when he knew it related to another person.

[8] Mr Khan then applied for a visitor visa and a student visa under the name of Mr Mallam. This formed the basis of two further charges of supplying information to an immigration officer knowing it to be false or misleading in a material respect.

Sentencing

[9] Mr Khan sought a sentence indication from Judge Andrée Wiltens on

13 August 2014. His Honour indicated that he would adopt a starting point of three years’ imprisonment. He indicated he would take into account Mr Khan’s personal circumstances and youth as mitigating factors, and would apply a 25 per cent guilty plea discount. He indicated that the end sentence would be less than two years’ imprisonment but said home detention was inappropriate. Mr Khan accepted the indication.

[10] As noted earlier, Mr Khan was sentenced to imprisonment for 20 months. While a discount was clearly applied for his guilty plea, it is not clear what other discount was applied in reaching the end sentence. In particular, the Judge noted that he had erred in indicating a discount for Mr Khan’s youth as he was not as young as

he thought.¹ The maximum 25 per cent discount for the guilty pleas would have led to an end sentence of two years three months’ imprisonment. Mrs Holden submitted this morning that the other discounts were for Mr Khan’s previous good character and his remorse.

[11] The Judge declined to impose home detention. In doing so he said that offending against New Zealand’s immigration system was required to be met by denunciation and deterrence. He also said that there were “ample statements” in judgments of New Zealand Courts to the effect that offending of this type (that is, immigration offending) is not appropriate for home detention.

Submissions on appeal

[12] Mr Khan appeals his sentence on the grounds that the starting point was too high; the end sentence was manifestly excessive; and the Judge erred by stating that home detention is generally not appropriate and would only be given in exceptional cases.

[13] For the appellant, Mrs Holden submitted that the appropriate starting point was between two years and two years six months’ imprisonment. She noted that the Judge had not referred to any sentencing authorities. She annexed sentencing judgments on immigration cases and referred, in particular, to two cases. She submitted that the appellant’s offending is at a lower level than cases such as Ismail v R² where a three year starting point was taken and where the offender had assisted in bringing others into New Zealand. The second case Mrs Holden referred to was R v Vhavha³ where a two year six months’ starting point was taken. Mr Vhavha had used a fraudulently obtained passport to enter New Zealand. He had used the false passport to obtain work permits and had also assisted a third party to enter New Zealand using a false passport.

[14] In the present case Mr Khan had not assisted anybody else as a result of gaining entry into New Zealand, and had initially come to New Zealand lawfully.

1. At the sentencing indication hearing, the Judge was under the impression Mr Khan was almost 22. He was in fact 30.

² _{Ismail v R [2011] NZCA 444.}

³ R v Vhavha [2009] NZCA 588.

Mrs Holden acknowledged that Mr Khan’s offending was aggravated by the factors of his having entered into a marriage of convenience and having returned to New Zealand on a false passport, but submitted that those matters did not justify a starting point of three years. Mrs Holden also submitted that the overall duration of Mr Khan’s offending was not as extended as might appear at first sight. She submitted that Mr Khan had been in New Zealand between September 2009 and January 2012 and then from March 2013 until April 2014.

[15] On the matter of home detention Mrs Holden submitted that the Judge was wrong to say that home detention is not generally appropriate and can only be given in exceptional cases where there are convictions of immigration fraud. She noted that the Court of Appeal has confirmed that a sentence of home detention is a real alternative to imprisonment. She submitted that the Judge had failed to consider the purposes and principles of sentencing and had failed to consider whether home detention would be an appropriate sentence. Mrs Holden submitted that home detention is appropriate in this case and is the least restrictive sentence appropriate in the circumstances.

[16] For the respondent, Mr Mills submitted that Mr Khan’s offending is similar to that in the case of Sin Zhe Lee v Department of Labour⁴ where on appeal the High Court considered that a two year six months starting point could have been adopted. I must point out that in that case the Court said that 24 months could have been adopted. Mr Mills also referred to the case of R v Subuncuoglu⁵ where on appeal the Court of Appeal said that the starting point of two years and nine months was well within the range available to the Judge.

[17] Mr Mills submitted that Mr Khan’s offending was in the mid-range of seriousness because it involved repeated persistent immigration fraud over a five year period. He acknowledged that this was over two distinct periods of being in New Zealand. Mr Mills further submitted the offending also involved premeditation by way of arranging a sham marriage in order to obtain visas to enter New Zealand, and by going to the trouble of changing his name by deed poll in order to obtain

access to New Zealand, and subsequently applying for visas to remain in New

Zealand using a new identity.

[18] Mr Mills submitted that policy considerations support taking a stern approach to immigration offending. In this respect he referred to comments by Stevens J in Lee⁶ as to the need for deterrence and denunciation in cases of immigration fraud. Mr Mills submitted that while Mr Khan’s offending was perhaps less serious than that in Ismail, the starting point of three years was within the available range.

[19] Mr Mills acknowledged that home detention is available for cases of immigration fraud but submitted that while another Judge may have imposed home detention, the imposition of imprisonment in this case was not outside the sentencing Judge’s discretion. He submitted that imprisonment is an “ordinary” disposition of cases of immigration fraud and the Judge was entitled to conclude that imprisonment was the least restrictive sentence appropriate for Mr Khan’s offending.

Analysis

(a) Sentence

[20] An appeal against sentence is a general appeal by way of rehearing. Section 121(3)(b) of the Summary Proceedings Act 1957 provides that the High Court may quash or vary a sentence where it is clearly excessive or inadequate or inappropriate, or if the Court is satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the Court imposing sentence. The High Court will not intervene when no error in sentencing has been identified and the sentence is within the range that can properly be justified by accepted sentencing principles.

[21] As to the starting point, in the case of Pitts v Department of Labour⁷ Mr Pitts appealed against his sentence of 18 months’ imprisonment for two charges of producing a passport knowing it to have been fraudulently obtained, and five charges of supplying false or misleading information to an immigration officer. Mr Pitts had

entered New Zealand twice using his deceased’s brother’s passport. He used a false passport because he was wanted by American authorities. He applied for work permits and residence giving false details. The sentencing Judge took a starting point of two years six months’ imprisonment and declined to order home detention rather than imprisonment. Mr Pitts’s appeal to the High Court was dismissed.

[22] In Ismail v R,⁸ Ms Ismail had appealed her sentence on 15 counts of immigration fraud by using a document with intent to defraud, using forged documents, and conspiring to commit an offence. Her co-defendant, Mr Abdi, appealed his sentence on 17 counts. They had falsely claimed refugee status in New Zealand. Ms Ismail successfully applied for residence and was able to bring seven relatives to New Zealand who were also granted residents’ permits. Mr Abdi sought to do the same with 11 people but was unsuccessful. In relation to Ms Ismail, the sentencing Judge had taken a starting point of three years’ imprisonment. The starting point for Mr Abdi was two years nine months’ imprisonment, as he did not help with the illegal entry of other people into New Zealand. The Court of Appeal upheld both starting points. Of particular relevance was the prolonged and planned nature of the offending. In that case the Court noted that there is no presumption against home detention in cases of immigration offending.

[23] In Lee,⁹ Mr Lee appealed his sentence on two charges of giving false information to an immigration officer. He had been removed from New Zealand by Immigration New Zealand and he returned under a different identity. The District Court Judge had taken a starting point of 21 months’ imprisonment. The High Court dismissed his appeal noting that a starting point of 24 months could have been justified.

[24] In R v Subuncuoglu,¹⁰ the appellant appealed his sentence on two counts of using documents with intent to defraud and three counts of supplying information to an immigration officer, knowing it to be false. He had completed applications to work in New Zealand using a different name and completed a false application for

_{refugee status. The District Court Judge took a starting point of two years nine}

⁸ _{Ismail v R, above n 2.}

⁹ Sin Zhe Lee v Department of Labour, above n 4.

months’ imprisonment. The Court of Appeal commented that this was well within the range available to the Judge.

[25] Mr Khan’s offending was less serious than that in Ismail. In terms of the number of charges he pleaded guilty to his offending was more serious than that in Lee. It has some similarity to that in Pitts and was more serious than the offending in Subuncuoglu. The ranges of starting points in those cases was two years, taking the starting point the Court of Appeal considered available in Lee, to three years.

[26] While the starting point adopted here was at the top end of the range, I am not persuaded that it was outside any available range. This is particularly so, in the light of the Court of Appeal’s comments in Subuncuoglu that two years nine months’ imprisonment was well within range for less serious offending. While the starting point was stern, I am not satisfied that the Judge erred in adopting a starting point of three years’ imprisonment.

[27] In any event, generous discounts were applied to reach the end sentence of 20 months. While Mr Khan was entitled to a discount of 25 percent for his guilty plea, the discount that must have been applied for his remorse and previous good character is, in my view, very generous. In fact, given the nature of the offending, when Mr Khan on more than one occasion entered New Zealand under false documentation, it is difficult to see any justification for a discount for previous good character.

[28] I do not accept that the end sentence of 20 months’ imprisonment was manifestly excessive.

(b) Home detention

[29] That brings me to the issue as to whether the Judge should have imposed a sentence of home detention. As Mr Mills acknowledged, home detention is available in cases of immigration fraud and it is not limited to exceptional cases. The Judge did err in his approach to home detention by saying that “this type of offending is seen as so serious that imprisonment is really the only option” and that it would only be available in “exceptional cases”.

[30] I have, therefore, reconsidered the appellant’s sentencing. As noted earlier, I am not persuaded that the starting point of three years’ imprisonment was outside the available range, and I consider that the discounts applied to arrive at the end sentence of 20 months’ imprisonment were generous. However, on reconsidering the sentence I am not persuaded that home detention is, in this case, an appropriate sentence.

[31] Mr Khan’s persistent offending over two distinct periods, and indeed the particular manner of his offending in obtaining false identities in order to enter New Zealand when he had been removed and prohibited from re-entry, cannot, in my view, be met with a sentence that is any less restrictive than home detention. I accept the comments made by Stevens J in Lee that a stern approach must be taken, and in this case the principles of deterrence and denunciation that must be applied make home detention an inappropriate sentence. It means that the sentence of 20 months’ imprisonment is the least restrictive appropriate sentence.

_{[32] Accordingly, the appeal against sentence is dismissed.}

Andrews J