Extradition to the United States upheld: Court of Appeal rejects Kim Dotcom’s challenge to surrender decision
[OMISSIS] v MINISTER OF JUSTICE [2026] NZCA 284 [1 July 2026]
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA643/2025
[2026] NZCA 284
BETWEEN [OMISSIS]
Appellant
AND MINISTER OF JUSTICE
First Respondent
AND COMMISSIONER OF POLICE
Second Respondent
Hearing: 21 April 2026
Court: French P, Campbell and Edwards JJ
Counsel: R M Mansfield KC for Appellant
J E Hodder KC, S J Leslie and S L W Fowler for First Respondent
F R J Sinclair and G M Taylor for Second Respondent
Judgment: 1 July 2026 at 3.30 pm
JUDGMENT OF THE COURT
A The appeal is dismissed.
B The appellant must pay each of the respondents costs for a standard
appeal on a band A basis, together with usual disbursements. We certify
for two counsel.
C The appellant must pay one set of costs to the respondents in relation to
the adjournment application on the basis of a standard application, band
A with a 50 per cent increase.
____________________________________________________________________
Table of Contents
Para No.
Introduction [1]
Factual background [9]
The decision not to prosecute Mr [OMISSIS] [33]
The claim [33]
The High Court [35]
Arguments on appeal [36]
Our view [41]
The Minister’s decision to surrender Mr [OMISSIS] (the surrender decision) [52]
The legal framework [52]
The grounds of review in relation to the surrender decision [65]
The correct comparator for the purpose of the first pathway [69]
The assessment of the likely US sentence [72]
Did the Judge misapply the s 9 gross disproportionality test under
NZBORA? [81]
Is Mr [OMISSIS] at risk of an irreducible prison sentence? [93]
Costs [105]
Costs on the appeal [105]
Costs on the application for an adjournment [106]
Outcome [123]
REASONS OF THE COURT
(Given by French P)
Introduction
[1] The United States of America (US) wishes to extradite Mr [OMISSIS] from
New Zealand where he is a resident to stand trial in the US on charges of criminal
copyright infringement, racketeering and wire fraud. The request was made pursuant
to the provisions of the Extradition Act 1999 and an extradition treaty (the Treaty) that
exists between the US and New Zealand.[n. 1 Extradition (United States of America) Order 1970 [the Treaty].] The extradition request was made in 2012.
[2] Following the 2012 request, there was extensive litigation in the New Zealand
courts as to whether Mr [OMISSIS] was eligible for surrender.[n. 2 See, for example, United States of America v [OMISSIS] DC North Shore CRI-2012-092-1647, 23 December 2015; Ortmann v United States of America [2017] NZHC 189; and Ortmann v United States of America [2018] NZCA 233, [2018] 3 NZLR 475 [Court of Appeal eligibility judgment].] Finally, in 2020, the
Supreme Court determined he was eligible for surrender to face trial in the US on
12 charges.[n. 3 Ortmann v United States of America [2020] NZSC 120, [2020] 1 NZLR 475 [Supreme Court eligibility judgment] at [434] and [496]. Mr [OMISSIS] was initially charged by the US with 13 charges but the Supreme Court held he was not eligible in respect of one of them, being a count of conspiracy to commit money laundering: see [594] and [599(b)].]
That finding meant it was then over to the Minister of Justice
(the Minister) to decide under s 30 of the Extradition Act whether or not Mr [OMISSIS]
should be surrendered.[n. 4 At [11]-[12].]
[3] After hearing from Mr [OMISSIS] and receiving advice from officials, the
Minister determined that Mr [OMISSIS] should be surrendered. The surrender decision
was made on 12 August 2024. In the course of reaching his decision, the Minister
considered, but rejected, Mr [OMISSIS]’s contention that in breach of the right under s 9
of the New Zealand Bill of Rights Act 1990 (NZBORA) he would receive a
disproportionately severe sentence in the US were he to be extradited for trial there
and convicted. The protected right under s 9 is the right not to be subjected to torture
or to cruel, degrading or disproportionately severe treatment or punishment.
[4] Execution of the surrender order was deferred for four weeks to enable
Mr [OMISSIS] to take legal advice and issue proceedings if he wished to challenge the
Minister’s decision.
[5] Mr [OMISSIS] subsequently filed an application in the High Court seeking
judicial review of the Minister’s decision. The proceeding also sought judicial review
of a decision made by the New Zealand Commissioner of Police (the Commissioner)
to decline to charge Mr [OMISSIS] with New Zealand offences equivalent to the charges
laid against him by the US authorities.[n. 5 The making of the decision was delegated by the Commissioner to an Assistant Commissioner Investigations of the New Zealand Police but for the purpose of this proceeding is treated as the Commissioner’s decision.]
[6] In a judgment issued on 10 September 2025, Grice J dismissed the application
for judicial review in its entirety,[n. 6 [OMISSIS] v Minister of Justice [2025] NZHC 2634, [2025] 3 NZLR 486 [High Court judgment under appeal] at [184]-[186].] prompting Mr [OMISSIS] to appeal to this Court.
[7] The notice of appeal contained several grounds of appeal. At the hearing
before us, Mr Mansfield KC however confirmed on behalf of Mr [OMISSIS] that the
appeal grounds were limited to matters raised in submissions. For their part, counsel
for the Minister contended that Mr [OMISSIS]’s submissions significantly reframe the
arguments advanced in the High Court and also depart from the review grounds
pleaded in the statement of claim. To the extent that they do, that is certainly irregular,
but we are satisfied the respondents have not been prejudiced as a result. We have
therefore considered all the arguments raised by Mr Mansfield in his written and oral
submissions.
[8] Those submissions focused on the sentence Mr [OMISSIS] would likely receive
in the US if found guilty and the disparity of treatment as between him and two of his
alleged co-conspirators, Mr Ortmann and Mr van der Kolk. According to
Mr Mansfield, both decision makers (the Commissioner and the Minister) led
themselves into error by prioritising the interests of an extradition treaty partner over
the proper application of New Zealand law.
Factual background
[9] The details of the 12 charges against Mr [OMISSIS] which have been filed in a
US federal court are as follows:[n. 7 As noted above at n 3, Mr [OMISSIS] was also initially charged with a 13th count of conspiracy to commit money laundering, but surrender is not available for that charge following the Supreme Court eligibility judgment.]
(a) one count of conspiracy to commit racketeering (maximum penalty of
20 years’ imprisonment), racketeering being a term used in the US Code
to denote seeking to make a profit from organised crime;[n. 8 Crimes and Criminal Procedure 18 USC §§ 1962(d)-1963(a).]
(b) one count of conspiracy to commit copyright infringement (maximum
penalty of five years’ imprisonment);[n. 9 Section 371.]
(c) one count of criminal copyright infringement by distributing a
copyright work being prepared for commercial distribution on a
computer network and aiding and abetting of criminal copyright
infringement (maximum penalty of five years’ imprisonment);[n. 10 Sections 2 and 2319(d)(2); and Copyrights 17 USC § 506(a)(1)(C).]
(d) four counts of criminal copyright infringement by electronic means and
aiding and abetting of criminal copyright infringement (each charge
carrying a maximum penalty of five years’ imprisonment);[n. 11 Crimes and Criminal Procedure 18 USC § 2319(b)(1); and Copyrights 17 USC § 506(a)(1)(A).] and
(e) five counts of fraud by wire and aiding and abetting fraud by wire
(fraud by wire being fraud that involves some form of
telecommunications or the internet, each charge carrying a maximum
penalty of twenty years’ imprisonment).[n. 12 Crimes and Criminal Procedure 18 USC §§ 2 and 1343.]
[10] The charges arise from the activities of a business providing cloud storage and
file sharing facilities for internet users.[n. 13 Supreme Court eligibility judgment, above n 3, at [13] and [200].] This business, described by the US in the
superseding indictment as the “Mega Conspiracy”,[n. 14 In January 2012, a Grand Jury in a US federal court returned a federal indictment — a formal written accusation charging a person with a particular crime — containing five charges against Mr [OMISSIS] (and other related co-defendants). In February 2012, the Grand Jury returned a superseding indictment which replaced the original January 2012 indictment. The superseding indictment contained the 12 counts against Mr [OMISSIS] (and other related co-defendants) as outlined above at [9], as well as a 13th count of conspiracy to commit money laundering which cannot be pursued following the Supreme Court eligibility judgment, above n 3. The superseding indictment has been discussed and relied on throughout Mr [OMISSIS]’s extradition proceedings in New Zealand. Accordingly, we rely on the superseding indictment here as well.] had a number of companies and
websites. Megaupload Ltd was the registered owner of Megaupload.com,[n. 15 This is according to the superseding indictment.] which was
the business’ primary storage site.[n. 16 See Supreme Court eligibility judgment, above n 3, at [13].] Megaupload.com is alleged to have been
deliberately designed and operated to facilitate the large-scale sharing of commercial
files such as films and music in breach of copyright.[n. 17 At [320].] It was a highly lucrative
business.
[11] Mr [OMISSIS] was one of the founders of Megaupload Ltd, its Chief Executive
Officer from 2005 until 2011, and then its Chief Innovation Officer.[n. 18 At [14]. See also the superseding indictment.] According to
the superseding indictment, Mr [OMISSIS], through a related company,[n. 19 The related company is Vestor Ltd. According to the superseding indictment, Mr [OMISSIS] is the sole shareholder and director of Vestor Ltd.] owned
68 per cent of Megaupload Ltd, Megaupload.com, Megaclick.com and Megapix.com,
and 100 per cent of the registered companies behind Megavideo.com, Megaporn.com
and Megapay.com.[n. 20 See also Supreme Court eligibility judgment, above n 3, at [14], n 27.]
[12] As noted in a previous decision of this Court,[n. 21 Court of Appeal eligibility judgment, above n 2, at [13].] Megaupload experienced
enormous growth from 2008. The business is claimed at one point to have accounted
for four per cent of global internet traffic,[n. 22 See R v Ortmann [2023] NZHC 1504 [High Court sentencing notes] at [23].]
and is said to have earned revenue of more
than USD 175,000,000.[n. 23 At [40].]
The US attributes this to the systematic infringement of
copyright. It claims the resulting losses to copyright owners exceeded
USD 500,000,000.[n. 24 At [12].]
[13] Originally, the US sought extradition of three other individuals as well as
Mr [OMISSIS].[n. 25 The US also sought the provisional arrest of another three alleged co-conspirators pending a formal extradition request, but they were not in New Zealand at the relevant time. One of those three offshore alleged co-conspirators, a Mr Andrus Nomm, was arrested in the Netherlands in January 2012. Mr Nomm agreed to be surrendered to the US where he pleaded guilty and was sentenced to a year and a day in federal prison.] All three were alleged to have been actively involved in the business
with Mr [OMISSIS]. Along with Mr [OMISSIS], they too were held eligible for surrender
by the New Zealand Supreme Court.[n. 26 Supreme Court eligibility judgment, above n 3.]
[14] One of the three, a Mr Batato, fell ill with a terminal illness.[n. 27 Mr Batato had been the Chief Marketing and Sales Officer for Megaupload.com and the business’ other websites.] In 2021, the
US was granted leave to withdraw its application for his extradition.[n. 28 United States of America v [OMISSIS] DC Auckland CRI-2012-092-1647, 10 June 2021.] Mr Batato died
in 2022. The other two alleged co-conspirators were a Mr Ortmann and a
Mr van der Kolk. Mr Ortmann had oversight of the software programmers who
developed the business’ websites and was also the Chief Technical Officer of
Megaupload Ltd.[n. 29 High Court sentencing notes, above n 22, at [16].] Through a company of which Mr Ortmann was the sole director
and shareholder, he owned 25 per cent of Megaupload Ltd.[n. 30 This is based on the superseding indictment but see also High Court sentencing notes at [16].]
Mr van der Kolk was
the Programmer-in-Charge for Megaupload Ltd and Megamedia Ltd.[n. 31 High Court sentencing notes, above n 22, at [17]. According to the superseding indictment, Megamedia Ltd is the parent company and sole shareholder of Megavideo Ltd (which is the registered owner of Megavideo.com), Megarotic Ltd (which is the registered owner of Megaporn.com), and Megapay Ltd.] Through a
company controlled by him, he owned 2.5 per cent of Megaupload Ltd.[n. 32 This is based on the superseding indictment. See also High Court sentencing notes, above n 22, at [17].]
[15] In 2022, Mr Ortmann and Mr van der Kolk approached the New Zealand
authorities offering to plead guilty to equivalent New Zealand offences (that is,
equivalent to the US charges) in a New Zealand court.[n. 33 High Court sentencing notes, above n 22, at [3].] They also offered to provide
assistance to the US in its prosecution against Mr [OMISSIS] whom the US regards as
the ringleader.[n. 34 At [100]. Although Mr Mansfield KC contended it was never a feature of the extradition proceeding up until now who was the primary offender, he accepted that the US case is advanced on the basis that the ringleader was Mr [OMISSIS].]
[16] After the US authorities had signalled their willingness to forgo their right to
seek extradition of Mr Ortmann and Mr van der Kolk, the New Zealand police
commenced a domestic prosecution in the Auckland High Court against the two men.
Both duly pleaded guilty on agreed facts to the equivalent New Zealand offences.[n. 35 Two charges of participating in an organised criminal group, one charge of conspiring to cause loss by deception and one charge of conspiring to dishonestly obtain documents: see Crimes Act 1961, ss 98A, 310, 240 and 228.]
The application for their extradition was withdrawn and they were each sentenced on
15 June 2023 to terms of imprisonment in New Zealand.[n. 36 High Court sentencing notes, above n 22.]
[17] In the case of Mr Ortmann, the prison term imposed was two years and seven
months and in the case of Mr van der Kolk two years and six months.[n. 37 At [125].] Reparation
orders were also made, both men having consented to surrender all funds that remained
in their names in overseas accounts.[n. 38 At [126].] Counsel advised the sentencing Judge that this
would exceed a total of NZD 10,000,000.[n. 39 At [110].]
[18] In arriving at end sentences of under three years’ imprisonment, the Judge first
adopted a starting point of ten years’ imprisonment for Mr van der Kolk, and ten and
a half years in the case of Mr Ortmann.[n. 40 At [91].] The starting points were then each reduced
by 75 per cent on account of mitigating personal factors which included the guilty
pleas, the assistance to the US authorities, the reparation, and prospects for
rehabilitation.[n. 41 At [97]-[124].]
[19] The assistance provided to the US authorities appears to have been significant
and is considered by those authorities to have strengthened the prosecution against
Mr [OMISSIS].[n. 42 At [100] and [106].]
[20] The assistance provided included consenting to the transfer of computers and
other electronic items seized from the two men in 2012. Up until that point, US efforts
to obtain and analyse those items had been frustrated by litigation and encryption.
Mr van der Kolk and Mr Ortmann further promised to assist in the investigation and
prosecution of Mr [OMISSIS]. To that end, they agreed to swear on oath to the truth of
the summary of facts. That meant sworn verification of allegations that:
Megaupload had been designed, and operated, as a sophisticated mechanism
for defrauding copyright owners for commercial gain, and that their cover
story — that Megaupload was a neutral cyberlocker, which acted responsibly
when notified of infringements — was part of the deception.
[21] It is common ground that the sentence likely to be imposed on Mr [OMISSIS] in
the US were he to be found guilty would be substantially greater than the sentences
imposed on Mr Ortmann and Mr van der Kolk in New Zealand. That would be so,
even putting to one side the personal discounts given the two men by the sentencing
Judge.
[22] The month following the sentencing of his co-conspirators, Mr [OMISSIS] invited
the Commissioner of Police on 5 July 2023 to confer with Crown Law and consider
whether the Crown and the US would agree to charge him in New Zealand too.
Mr [OMISSIS] said he would submit to the New Zealand jurisdiction and any charges
laid could be determined domestically under New Zealand law.
[23] The Commissioner tasked the Assistant Commissioner Investigations with
considering the request which was subsequently declined in a letter dated
18 July 2023.
[24] Then, as already mentioned, on 12 August 2024 the Minister issued his
decision that Mr [OMISSIS] was to be surrendered to the US.
[25] Before making his surrender decision, the Minister sought advice from a US
legal expert regarding the sentence Mr [OMISSIS] was likely to receive in the US in the
event of his being found guilty and convicted. The report from the expert, a
Mr Debold, was that the range of possible sentences was from 30 to 150 years’
imprisonment. Mr Debold also advised that early release on parole is not a feature of
the US federal system although a reduction of up to approximately one seventh of the
sentence for good behaviour is possible. In his opinion, although Mr [OMISSIS] might
avoid a sentence as long as 150 years, there was a significant chance he would receive
a sentence of at least 30 years.
[26] We pause here to interpolate that at the hearing before us, Mr Sinclair (counsel
for the Commissioner) drew our attention to recent sentencing decisions in the US that
postdate the Debold report and which appear to suggest a more lenient approach to
sentencing on copyright-related charges.[n. 43 US Attorney’s Office, Eastern District of Pennsylvania “Leader of Illegal Copyright Infringement Scheme Sentenced to 5 ½ Years’ Imprisonment” (press release, 8 March 2023) in respect of a Mr Carrasquillo; and Office of Public Affairs “Five Defendants Sentenced in Connection with Operating One of the Largest Illegal Television Show Streaming Services in the United States” (press release, 22 July 2025) in respect of a Mr Dallmann and a Mr Polo. In all of these cases, it appears that the US Sentencing Guidelines suggested each defendant should receive a sentence range of 24-30 years. Mr Carrasquillo was ultimately sentenced to five years and six months’ imprisonment. He was also ordered to pay restitution of more than USD 15,000,000 and to forfeit over USD 30,000,000 in proceeds that he reaped from the scheme. Mr Dallmann was sentenced to seven years’ imprisonment. Mr Polo was sentenced to four years and nine months’ imprisonment.] In a judicial review context however, the
consideration should generally be limited to the information that was before the
decision-maker. Further, without any expert assistance as to the significance of these
decisions in US sentencing jurisprudence, it is difficult for us to know with any
certainty what significance to ascribe to them.
[27] In the surrender decision, the Minister noted that the uncertainty of the US
sentence — anywhere from 30 to 150 years — was a complicating factor in assessing
disproportionality as between the sentence Mr [OMISSIS] was likely to receive in the US
and the sentence likely to be imposed in New Zealand for equivalent New Zealand
offences. The latter was considered by the Minister to be in the range of 12 to 15 years’
imprisonment.
[28] In the Minister’s view, notwithstanding the uncertainty of the US sentences,
the practical reality was that whether the US sentence was a 30 or 150 year prison
term, it was likely to be for the rest of Mr [OMISSIS]’s natural life. He was aged 50 at
the time of the surrender decision made in 2024 . Rather than focus on the number of
years, the Minister therefore proceeded on the basis of a likely sentence of at least
30 years, and which likely would result in a 50 year old spending the rest of their
natural life in prison.
[29] The Minister accepted that the difference between the likely US outcome and
the notional equivalent New Zealand outcome was “clearly substantial”. He went on
to say:
… However, that does not necessarily make the US sentence
disproportionately severe. Significant differences in sentences between
jurisdictions are permissible, and need not necessarily prevent extradition.
The alleged offending, if proven, would amount to fraud on a massive scale.
A conviction in the US will likely lead to a sentence that effectively means
Mr [OMISSIS] would probably spend the rest of his natural life in prison.
I have weighed these various factors carefully. On balance, in my view, in the
context of the circumstances of this case (including the scale of the alleged
offending), surrendering a 50 year old person to a country where, if convicted,
they are likely to spend the rest of their natural life in prison would not “shock
the conscience” of properly informed New Zealanders. Accordingly, I do not
consider that the likely US sentence would be disproportionately severe.
[30] The Minister then considered whether the likely US sentence involved an
irreducible life sentence, that is to say a life sentence without any possibility of an
early release. He found it did not because of the possibility of compassionate release
and executive clemency.
[31] Following receipt of the Minister’s surrender decision, Mr [OMISSIS] filed a
55 page statement of claim in the High Court raising several grounds of review against
both the Commissioner and the Minister. Then followed the unsuccessful High Court
judicial review and now this appeal.
[32] We begin our analysis by considering the appeal relating to the Commissioner.
The decision not to prosecute Mr [OMISSIS]
The claim
[33] The statement of claim alleged that the Commissioner’s decision to refuse to
charge Mr [OMISSIS] in New Zealand despite having charged Mr Ortmann and
Mr van der Kolk in respect of substantially the same facts was:
(a) biased and for an improper purpose in that it was for the purpose of
appeasing the US and making an example of Mr [OMISSIS] rather than in
accordance with the test for prosecution under the Solicitor-General’s
Prosecution Guidelines 2013 (the Prosecution Guidelines);[n. 44 Crown Law Office Solicitor-General’s Prosecution Guidelines (1 July 2013).]
(b) unreasonable because of the different treatment afforded Mr Ortmann
and Mr van der Kolk and the fact that if Mr [OMISSIS] is found guilty, he
will be subjected to grossly disproportionate punishment relative to his
co-conspirators;
(c) contrary to ss 9, 25, and 27 of NZBORA;[n. 45 Section 9 is the right not to be subjected to torture or to cruel, degrading or disproportionately severe treatment or punishment, s 25 establishes the minimum rights of everyone who is charged with an offence, and s 27 provides for the right to justice.] and
(d) contrary to arts 9 and 14 of the International Covenant on Civil and
Political Rights.[n. 46 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976) [ICCPR]. Article 9 recognises and protects both liberty of person and security of person, and art 14 is the right to equality before courts and tribunals and to a fair trial.]
[34] The relief sought was a declaration that the Commissioner’s decision not to
charge Mr [OMISSIS] in New Zealand was invalid as well as orders quashing the decision
and directing the Commissioner to charge Mr [OMISSIS] in New Zealand.
The High Court
[35] The Judge rejected all the grounds of review and held there was no basis to
interfere with the decision not to prosecute. In particular, she was not persuaded that
the decision was unreasonable.[n. 47 High Court judgment under appeal, above n 6, at [74] and [184(d)].] Nor in her view was there any evidential basis for
the allegations of improper conduct.[n. 48 At [70] and [74].] In her view, the Commissioner had properly
exercised his discretion whether to prosecute and had not taken into account any
irrelevant considerations.[n. 49 At [184(d)].]
Arguments on appeal
[36] The central focus of the submissions made on behalf of Mr [OMISSIS] was the
Prosecution Guidelines. Mr Mansfield argued that the Commissioner’s decision was
erroneous in law for failing to comply with the Prosecution Guidelines and that the
High Court had erred in finding to the contrary. Mr Mansfield also challenged the
correctness of the High Court finding that the Commissioner’s decision was
reasonable.
[37] As regards the Prosecution Guidelines, Mr Mansfield contended they required
the Commissioner to consider first whether the evidential threshold for a prosecution
had been met and secondly whether a prosecution was in the public interest. In making
his decision to prosecute Mr Ortmann and Mr van der Kolk, the Commissioner must,
Mr Mansfield argued, have been satisfied that both elements were present and if so,
given their cases were indistinguishable from Mr [OMISSIS]’s case, the Commissioner
should have decided to initiate a prosecution against him as well. If the Commissioner
was not so satisfied in the cases of the other two, then he should have declined the deal
they had made with the US.
[38] In short, according to Mr Mansfield, either all three should have been
prosecuted in New Zealand or none of them.
[39] Developing these submissions, Mr Mansfield further argued that parity of
treatment was required under the Prosecution Guidelines. Defendants involved in the
same alleged offending should be prosecuted together, tried together and sentenced
accordingly. In being prepared to entertain whether the other two should be prosecuted
in New Zealand, it was therefore incumbent on the Commissioner to have considered
whether the same opportunity should be afforded to Mr [OMISSIS]. The failure to do so
led to the irresistible inference that the Commissioner had not acted independently but
was doing the bidding of the US. At worst for Mr [OMISSIS], he could expect in
New Zealand to receive a 12 to 15 year prison sentence which stood in stark contrast
to the likely sentences in the US.
[40] Responding to arguments raised on behalf of the Commissioner, Mr Mansfield
conceded that Mr [OMISSIS] had been identified as the primary offender. However, he
argued the role each man had played in the business was only relevant to sentencing,
not prosecution. As for the extradition context, Mr Mansfield said while that was a
relevant factor for the Commissioner to take into account, it was a factor common to
all three and not a basis for distinguishing between them. All three had been found
liable to surrender. The only difference, in Mr Mansfield’s submission, was that the
other two did a deal behind the scenes.
Our view
[41] We begin our analysis with the preliminary observation that although
prosecution decisions are amenable to judicial review, it is well established that the
scope for review is limited.[n. 50 Osborne v Worksafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513 at [35], citing Polynesia Spa Ltd v Osborne [2005] NZAR 408 (HC) at [69]. See also Attorney-General of New Zealand v Fitzgerald [2024] NZCA 419, [2024] 3 NZLR 817 at [94], referring to Osborne v Worksafe New Zealand.]
That is because of constitutional constraints and the high
content of judgment and discretion involved in such decisions.[n. 51 Osborne v Worksafe New Zealand, above n 50, at [34]. See also Attorney-General v Fitzgerald, above n 50, at [92], citing Osborne v Worksafe New Zealand at [34].] Even if that were not
so, on the facts of this case, we consider it clearcut that there was a rational and proper
basis for distinguishing between Mr [OMISSIS] and the other two men.
[42] As noted in the Commissioner’s decision letter dated 18 July 2023,
Mr [OMISSIS]’s position differed from that of Mr Ortmann and Mr van der Kolk in
fundamental respects. Not only was Mr [OMISSIS] the primary offender in terms of role
and financial gain, but he was also not offering to plead guilty on agreed facts, and
most critically of all, the US was not prepared to withdraw its request for extradition
of him.[n. 52 We also note that, unlike Mr Ortmann and Mr van der Kolk, Mr [OMISSIS] has previous convictions.]
[43] The fact Mr [OMISSIS] was not offering to plead guilty meant his proposal
involved having a trial in New Zealand. And that was something the New Zealand
police did not consider feasible. The Commissioner’s decision letter stated that the
New Zealand police were not in a position to prosecute the case through to trial,
pointing out that it was a US investigation not a New Zealand one and that it involved
a vast volume of complex evidence, with investigating agents and witnesses located
in the US.
[44] Mr Mansfield suggested these concerns were overstated, citing the use of
remote technology for giving evidence and noting that at least two key witnesses
(Mr Ortmann and Mr van der Kolk) were in New Zealand. However, in our view, it
is not for the courts to minutely scrutinise police decisions about the allocation of their
finite resources, not least of all in circumstances where the likely scale of the
investigation, the disclosure process and the trial itself is self-evident. We note too
that the only evidence before us as to the feasibility of a prosecution was an affidavit
from the Assistant Commissioner Investigations.
[45] The Commissioner’s decision letter also answers a further criticism made by
Mr Mansfield, namely that it is not a proper policy to prosecute only those who are
prepared to plead guilty and that in any event, for all the Commissioner knew,
Mr Ortmann and Mr van der Kolk could have changed their minds about pleading
guilty once the New Zealand charges were laid and the High Court seized of the matter.
However, what the decision letter states is that because of the logistical issues, had
Mr van der Kolk and Mr Ortmann sought to withdraw their guilty pleas, it is likely the
New Zealand charges would have been immediately withdrawn and the request for
their extradition renewed.
[46] As indicated in [42], we consider the most telling argument against
Mr Mansfield’s submissions is the fact that the US maintains its request for
Mr [OMISSIS]’s extradition to face trial in the US and is not prepared to withdraw it as it
was in the case of Mr Ortmann and Mr van der Kolk.
[47] Neither the Treaty nor the Extradition Act contemplate a domestic prosecution
as an alternative to an extant extradition proceeding. Unlike some jurisdictions,
New Zealand does not have what is known as a “forum bar”, namely an express
statutory restriction preventing extradition to another nation where the alleged
offending could be prosecuted domestically.[n. 53 For example, in 2013, the United Kingdom introduced a forum bar: see Extradition Act 2003 (UK), ss 19B, 79(1)(e), 79(1A), and 83A-83E. The forum bar can only operate if a substantial measure of the requested person’s relevant activity was performed in the United Kingdom and a judge decides the specified matters relating to the interests of justice mean that the extradition should not take place. See also Extradition Act 1988 (Cth), s 45. Section 45 allows for domestic prosecution as an alternative to extradition for offences arising extra-territorially if the Attorney-General consents and has determined under ss 15B or 22 that the person is not to be surrendered to the requesting country.] That means, as Ms Taylor for the
Commissioner submitted, were the New Zealand police unilaterally to acquiesce to
Mr [OMISSIS]’s request, that would be inconsistent with both the scheme of the
Extradition Act and the Treaty.[n. 54 See, for example, Regina (Bermingham) v Director of the Serious Fraud Office [2006] EWHC 200 (Admin), [2007] QB 727 at [65]; and R (Ahsan) v Director of Public Prosecutions [2008] EWHC 666 (Admin) at [38], citing Regina (Bermingham) v Director of the Serious Fraud Office. We note these cases were decided in the United Kingdom prior to the enactment of the statutory forum bar under the Extradition Act (UK).]
[48] In contrast, the decision to prosecute Mr Ortmann and Mr van der Kolk was
consistent with New Zealand’s obligations under the Treaty, because the requesting
country consented to that course of action and was substantially assisted by it.
The decision thus accorded with the objectives of international cooperation and
comity,[n. 55 Comity in the extradition context is generally understood as denoting respect for the laws of other countries despite the fact they may differ from the laws of New Zealand. The term reciprocity is also often used in the authorities as a synonym for cooperation, referencing the reciprocal obligations on states to facilitate extradition to each other. See also the Treaty, above n 1: The Treaty expressly records that it is the product of a desire on the part of both countries to make more effective the cooperation of the two countries for the reciprocal extradition of offenders.] which are central to extradition.
[49] It follows given the existence of an ongoing extradition proceeding that it was
unnecessary for the Commissioner to consider the Prosecution Guidelines.
Mr Mansfield’s argument would require the Commissioner to assess the evidential
sufficiency of a case that the New Zealand police had not even started investigating
and which it could not prosecute without acting contrary to the Extradition Act and
putting New Zealand in breach of its Treaty obligations. The decision to prosecute the
other two was only legally possible because they were removed from the extradition
track.
[50] Mr Mansfield sought to overcome these formidable difficulties by calling in
aid NZBORA, and in particular, the protected right not to be subjected to torture or to
cruel, degrading, or disproportionately severe treatment or punishment.[n. 56 New Zealand Bill of Rights Act 1990, s 9.] However,
the Commissioner’s decision was simply a decision not to prosecute Mr [OMISSIS] in
New Zealand. It was not a decision imposing a punishment or treatment.
And although the decision in one sense placed him “at risk” of punishment in the US,
we consider that any sentence the US courts might impose were Mr [OMISSIS] to be
extradited and found guilty is too remote from the Commissioner’s decision to amount
to “treatment” or “punishment” for the purposes of s 9 of NZBORA.
[51] For the reasons discussed above, we are satisfied that the decision to prosecute
the other two men and the decision declining to prosecute Mr [OMISSIS] were both
lawful and rational decisions. The High Court was correct to reject the claims against
the Commissioner.
The Minister’s decision to surrender Mr [OMISSIS] (the surrender decision)
The legal framework
[52] The issue of whether Mr [OMISSIS] is likely to receive a disproportionately
severe punishment in the US was identified as a key issue in the surrender decision, in
the High Court,[n. 57 High Court judgment under appeal, above n 6, at [94]-[132].] and now in this appeal.
[53] In order to understand the arguments advanced by counsel, it is necessary at
this juncture to provide a brief explanation of the relevant legal framework.
[54] Liability to disproportionately severe punishment is not expressly listed among
the restrictions on surrender set out in s 30 of the Extradition Act. However, as noted
in the briefing paper provided to the Minister, it was still possible for him to consider
the issue under s 30. That was because, in addition to the express restrictions,
s 30(3)(e) empowers the Minister to determine a person is not to be surrendered for
“any other reason”.
[55] As the briefing paper further explained, while s 30(3)(e) would only render
“liability to severely disproportionate punishment” a discretionary restriction as
opposed to a mandatory restriction under the Extradition Act, the issue of
disproportionately severe sentences also engages the protected right under s 9 of
NZBORA. It will be recalled that s 9 provides that everyone has the right not to be
subjected to torture or to cruel, degrading, or disproportionately severe treatment or
punishment. Given that the issue engaged a fundamental protected right, the Minister
was advised it would be effectively mandatory to refuse surrender if the likely sentence
Mr [OMISSIS] would receive in the US would amount to disproportionately severe
punishment.
[56] The Minister clearly accepted that advice because the surrender decision states,
“Mr [OMISSIS] should not be surrendered if he is likely to be subjected to a
disproportionately severe punishment”. It is common ground on appeal as it was in
the High Court that the Minister was correct to take that position and that it required
him to examine the foreseeable consequences of sending Mr [OMISSIS] to the US.
[57] The Minister also accepted the advice in the briefing paper regarding what test
should be applied in determining whether Mr [OMISSIS] would be subjected in the US
to a disproportionately severe sentence. The relevant test was identified as being
whether the likely sentence was so excessive it would shock the conscience of properly
informed New Zealanders. The “shocked conscience test” is derived from Canadian
human rights jurisprudence.[n. 58 See, for example, Miller v The Queen [1977] 2 SCR 680 at 688 per Laskin CJ, where the question was whether the criminal punishment prescribed was “so excessive as to outrage standards of decency”. See also R v Smith (Edward Dewey) [1987] 1 SCR 1045 at 1072 per Lamer J, at 1089 per McIntyre J, and at 1109 per Wilson J.] It is now part of New Zealand law following the
decisions of our Supreme Court in Taunoa v R and Fitzgerald v R where the test was
held to apply to s 9 of NZBORA.[n. 59 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [92] per Elias CJ, at [172] per Blanchard J, and at [289] per Tipping J; and Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 at [79] per Winkelmann CJ, at [163]-[165] and [167] per O’Regan and Arnold JJ, and at [239] per Glazebrook J.]
[58] Although Taunoa and Fitzgerald involved the application of s 9 of NZBORA
in a domestic setting and not an extradition setting,[n. 60 In Taunoa v Attorney-General, the Supreme Court, by majority, held that the treatment of prison inmates who had been subjected to a behaviour modification regime did not amount to a breach of s 9 of the New Zealand Bill of Rights Act. In Fitzgerald v R, the Supreme Court held the shocked conscience test was satisfied in the case of a man experiencing mental health problems who received a prison sentence of seven years for kissing a woman who was a stranger to him on the cheek. We also note that this Court has considered whether humanitarian considerations were relevant to a decision made under s 30 of the Extradition Act in Bujak v Minister of Justice [2009] NZCA 570.] the same shocked conscience test
has been consistently adopted in extradition cases by Canadian courts,[n. 61 See, for example, Canada v Schmidt [1987] 1 SCR 500 at 522; Kindler v Canada (Minister of Justice) [1991] 2 SCR 779; Gwynne v Canada (Minister of Justice) (1998) 103 BCAC 1, 37 WCB (2d) 355; United States v Burns 2001 SCC 7, [2001] 1 SCR 283; Lake v Canada (Minister of Justice) 2008 SCC 23, [2008] 1 SCR 761; United States of America v UAS 2013 BCCA 483; United States of America v Wilcox 2015 BCCA 39; Canada (Attorney General) (United States of America) v Hillis 2021 ONCA 447, 156 OR (3d) 525; and United States of America v Ferguson 2023 BCCA 186. We note that the relevant human rights provisions in Canada are ss 7 and 12 of the Canadian Charter of Rights and Freedoms, pt 1 of the Constitution Act 1982, being sch B to the Canada Act 1982 (UK).] the European
Court of Human Rights (ECHR),[n. 62 See, for example, Ahmad v United Kingdom (2013) 56 EHRR 1 (ECHR).] and United Kingdom courts.[n. 63 See, for example, R (on the application of Wellington) v Secretary of State for the Home Department [2007] EWHC 1109 (Admin); and Inzunza v Government of the United States of America [2011] EWHC 920 (Admin). We note that the relevant human rights provision in the United Kingdom is art 3 of European Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221(opened for signature 4 November 1950, entered into force 3 September 1953) [the Convention] as incorporated in the Human Rights Act 1998 (UK).]
A significant
number of these cases involve extradition to the US.
[59] In the present case, the parties all agree the Minister was correct to adopt the
shocked conscience test. And although the application of the test both by the Minister
and the Judge is challenged, it is also agreed that their respective formulations of it
were correct.
[60] To summarise, the application of s 9 of NZBORA in this case required the
Minister to first identify the sentence likely to be imposed in the US. As pointed out
in Sanchez-Sanchez v United Kingdom, unlike the domestic setting where human
rights are being considered in relation to a sentence that has actually been imposed, in
the extradition context where the person has not yet been convicted, a complex risk
assessment as to the likely sentence is required.[n. 64 Sanchez-Sanchez v United Kingdom (2022) 54 BHRC 347 (Grand Chamber) at 369.] The ECHR in Sanchez described
the assessment as “a tentative prognosis that will inevitably be characterised by a very
different level of uncertainty when compared to the domestic context”.[n. 65 At 369.]
It went on
to say that this called “as a matter of principle, but also out of practical concerns” for
caution in applying domestic-setting cases to their fullest extent in the extradition
context.[n. 66 At 369.] Some of the overseas cases also use the language of requiring satisfaction
that there is a “real risk” or likelihood of a particular sentence in the requesting
country.[n. 67 At 371. See also Balahan v Sweden ECHR 9839/22, 29 June 2023; and Singler v Government of the United States of America [2025] EWHC 3555 (Admin).]
[61] Having identified the likely sentence, the Minister was then required to
determine whether it was “grossly disproportionate” for the purposes of s 9 of
NZBORA by applying the shocked conscience test.
[62] Finally, as mentioned, the Minister also considered that another alternative way
a sentence might be disproportionately severe for the purposes of s 9 of NZBORA was
if it amounted to an irreducible life sentence, that is to say a life sentence without any
prospect of release at all.
[63] The existence of this alternative pathway to a finding of disproportionately
severe punishment in the extradition context has been adopted in comparable
jurisdictions including countries subject to the European Convention on Human Rights
(the Convention).[n. 68 The Convention, above n 63.] It has been consistently held that if a sentence is an irreducible
life sentence it may breach art 3 of the Convention which provides a right to freedom
from inhuman or degrading treatment or punishment.[n. 69 As per our discussion below at [99], the courts have indicated that it is not enough to show there is a real risk of a sentence of life imprisonment without parole. It must also be ascertained whether, from the moment of sentencing, there is a review mechanism in place allowing the requesting country to consider whether any changes in the prisoner’s life or steps towards rehabilitation are so significant as to mean that continued detention can no longer be justified on legitimate grounds: see Sanchez-Sanchez v United Kingdom, above n 64, at 371; and Balahan v Sweden, above n 67, at [54]. See also Regina (Wellington) v Secretary of State for the Home Department [2008] UKHL 72, [2009] AC 335.] A similar position has been
adopted in Canada.[n. 70 See, for example, R v Bissonnette 2022 SCC 23, [2022] 1 SCR 597 at [81], [97], and [111]: the Supreme Court held, albeit in the domestic context, that a sentence of imprisonment without a realistic possibility of parole was intrinsically incompatible with human dignity and s 12 of the Canadian Charter of Rights and Freedoms.]
[64] As noted by Mr Hodder KC for the Minister, New Zealand courts have yet to
address the question of an irreducible life sentence either in the domestic setting or the
extradition context.[n. 71 We note the question of whether the imposition of a whole of life sentence of imprisonment without parole would be in breach of art 7 of the ICCPR was raised in Kim v Minister of Justice [2019] NZCA 209, [2019] 3 NZLR 173 at [268]. However, the argument was only raised in passing in the appellant’s written submissions. The Court did not address the argument because it was not referred to any evidence as to whether or not a sentence of life imprisonment without parole in the People’s Republic of China was, as a matter of law and fact, irreducible. Mr Kim did not pursue the point on appeal: see Minister of Justice v Kim [2021] NZSC 57, [2021] 1 NZLR 338, at [432], n 520. We also note that, as observed in the briefing paper, R v Tarrant [2020] NZHC 2192, [2020] 3 NZLR 15 is still the only case in New Zealand where a life sentence without parole has been imposed.] However, for the purposes of this case, there is no dispute about
the existence of this alternative pathway as a matter of law. What is very much in
dispute is whether the pathway is available to Mr [OMISSIS] on the facts.
The grounds of review in relation to the surrender decision
[65] The grounds of review were summarised in the submissions filed by
Mr Mansfield in this Court as being that the surrender decision was:
(a) in breach of s 9 of NZBORA and/or s 30(3)(e) of the Extradition Act,[n. 72 As noted above at [54], s 30(3)(e) allows the Minister to determine that the person is not to be surrendered “for any other reason”.]
as it resulted in disproportionately severe treatment of Mr [OMISSIS]
relative to Mr Ortmann and Mr van der Kolk that would shock the
conscience of properly informed ordinary New Zealanders;
(b) unreasonable, if not perverse, in that it resulted in two members of the
same alleged conspiracy with no stronger ties to New Zealand than
Mr [OMISSIS] being charged in New Zealand after a decade of being
sought for extradition jointly;
(c) erroneous in law because the Minister misdirected himself by
characterising the argument put to him about disparity in treatment as
requesting him to review or interfere with the Commissioner’s exercise
of prosecutorial discretion;
(d) erroneous in fact because the Minister’s analysis of likely sentencing
outcomes in the US was inconsistent with the Debold report he had
commissioned;
(e) erroneous in law by failing to have regard to a relevant consideration,
namely the terms of the plea agreements between the US and
Mr Ortmann and Mr van der Kolk and the negotiations leading up to it;
and
(f) erroneous in law by having regard to an irrelevant factor, namely the
self-serving evidence of Mr Ortmann and Mr van der Kolk that
Mr [OMISSIS] was the leader of the alleged conspiracy and thereby
purporting to reduce the degree of disparity between the respective
sentences.
[66] The relief sought in the statement of claim was a declaration that the surrender
decision was invalid together with orders quashing the surrender decision and
discharging Mr [OMISSIS].
[67] The High Court did not uphold any of the grounds of review. After traversing
a number of authorities, the Judge found that the Minister’s decision was based on
relevant considerations and was in no sense unreasonable or unfair.[n. 73 High Court judgment under appeal, above n 6, at [132], and [184(a)-(c)].]
[68] We now address each of the grounds of appeal advanced by Mr Mansfield in
his written and oral submissions. These were to the general effect that the Judge erred
by failing to identify that the surrender decision was based on errors of law as to the
applicable test, as well as errors of fact regarding the sentencing position in the US.
Further, that the Judge erred in finding that the disproportionality was not so severe as
to shock the conscience and erred in finding the surrender decision was not
unreasonable.
The correct comparator for the purpose of the first pathway
[69] At one point of his submissions, Mr Mansfield appeared to suggest that the
comparison that should have been undertaken was a comparison between the sentence
Mr [OMISSIS] was likely to receive in the US and the actual sentences imposed on
Mr Ortmann and Mr van der Kolk.
[70] That however is not consistent with Fitzgerald and its focus on the individual
offender and the circumstances of the offending.[n. 74 Fitzgerald v R, above n 59.] Nor is it consistent with any of the
extradition authorities where the comparison undertaken is always between the
sentence the person is likely to receive in the requested country and the likely sentence
in the requesting country. Of course, the sentences imposed on Mr Ortmann and
Mr van der Kolk may be used — as it was by the Minister — to inform an assessment
of the likely New Zealand sentence but, in our view, that is the extent to which they
are relevant.
[71] It follows from the above, that we also reject a related submission made by
Mr Mansfield that it was a reviewable error for the Minister not to take the effect of
the Commissioner’s decision declining to prosecute Mr [OMISSIS] into account.
The assessment of the likely US sentence
[72] Mr Mansfield submitted that the Minister proceeded on a factually incorrect
assumption in his risk assessment of the likely sentencing outcomes in the US, an error
which the High Court Judge failed to identify. The sentence of at least 30 years
without parole adopted by the Minister was, Mr Mansfield argued, a best case
scenario. In his submission, the more likely sentence was at the end of the range, that
is to say nearer 150 years.
[73] In order to understand what appears to New Zealand eyes to be an
extraordinarily wide sentencing range of 30 to 150 years, it is necessary to consider
the Debold report in more detail.
[74] The first point to note is that none of the offences charged against Mr [OMISSIS]
carry mandatory minimum sentences. Nor do any of them carry a life sentence.
The 150 year figure represents the combined total of the maximum penalties on the
12 counts.[n. 75 See the charges and the sentences they carry in our discussion above at [9].]
[75] As the Debold report explains, within the maximum prison-term boundaries,
sentencing judges must consider various factors specified by statute and further
refined in the US Federal Sentencing Guidelines. The Guidelines (described by
Mr Debold as a score-keeping exercise) have been promulgated by a federal agency
called the Sentencing Commission. They are designed to yield a single sentencing
range for the totality of the convictions in any given case. They do so by setting out a
base offence level for each federal offence which may be adjusted upwards or
downwards by the sentencing judge on account of factors relating to the offence and
the offender. Once the court arrives at a total offence level, a sentencing table dictates
the offender’s sentencing range.
[76] As Mr Debold also explains, the sentencing judge has a residual discretion to
depart from the sentencing range. The Guidelines have been held to be advisory only.
If however the judge does not identify any basis to depart or vary below the sentencing
range, the judge is then required to impose consecutive sentences.
[77] In endeavouring to predict the sentence Mr [OMISSIS] might receive in the US,
it is evident from the Debold report that any prediction is necessarily subject to a
number of contingencies and assumptions.[n. 76 As an example of the uncertainty in predicting the likely US sentence, Mr Hodder KC referred to a case cited in the Minister’s briefing paper involving the extradition of an alleged computer hacker accused of causing losses of USD 59,000,000 in a cyber-attack where the prosecutors had indicated a sentence of 27 to 35 years would be sought. The courts upheld the extradition on the basis of this estimate, but the offender ultimately only received an end sentence of eight years’ imprisonment: see Findikoglu v Germany ECHR 20672/15, 30 June 2016.] Unknown factors causing uncertainty
arise, for example, from whether Mr [OMISSIS] pleads guilty to all or any of the counts,
whether the judge is prepared to depart from the range and whether Mr [OMISSIS] is
convicted on all 12 counts.
[78] A further unknown identified by Mr Debold was the application of new
amendments to the US Sentencing Guidelines. Mr Debold explained that the
amendments allowed prisoners to apply to the sentencing judge for a reduced sentence
based on extraordinary and compelling reasons, such as serious deterioration in health.
Mr Debold did not factor the amendments into his advice because he considered it was
“highly uncertain whether, or to what extent, an extraordinary and compelling reason
will materialize after sentence is imposed” and he could not predict how a judge
considering the motion would assess it or exercise their broad discretion.
[79] Importantly the opinion also expressly acknowledges that it is difficult to
predict how a judge would approach Mr [OMISSIS]’s case because cases of this type are
said to occur “so infrequently”. However, clearly doing the best he can and subject to
the qualifications he identifies, Mr Debold predicts that Mr [OMISSIS] would face a
“significant challenge” in receiving a downward adjustment that would bring his
sentence below 30 years. He concludes that a sentence of at least 30 years is
“very likely”. In another passage of the report, he says that he believes that “although
Mr [OMISSIS] may avoid a sentence as long as 150 years, there is a significant chance
he will receive a sentence of at least 30 years”.
[80] In the circumstances, we are not persuaded there was any error factual or legal
in the Minister’s approach which while adopting a 30 year prison term did so on the
basis that it was an effective life sentence. It was an approach that took into account
the expert opinion. And it was in our view a reasonable approach to take.
Did the Judge misapply the s 9 gross disproportionality test under NZBORA?
[81] Mr Mansfield acknowledged that the Judge identified the correct standard —
whether the sentence would shock the conscience of properly informed
New Zealanders. However, in his submission, she then displaced it with an assessment
tied to the US context by holding that it is not an assessment of whether
New Zealanders would be shocked if the sentence were imposed in New Zealand but
their reaction if imposed in the US context.
[82] In adopting that approach, the Judge is said to have substituted foreign
sentencing norms, improperly read down domestic human rights protections, ignored
art IX of the Treaty which requires the application of New Zealand law and overlooked
s 11(1) of the Extradition Act. Section 11(1) states the provisions of the Extradition
Act must be construed to give effect to any extradition treaty in force between
New Zealand and the extradition country.
[83] A further submission made by Mr Mansfield was that in applying the shocked
conscience test the Minister was also required to have regard to what he described
as the gross disparity of outcomes as between Mr [OMISSIS] and the other two
co-conspirators.
[84] In our view, these criticisms of the High Court judgment are misplaced. They
are also inconsistent with well-established extradition caselaw from jurisdictions with
similar human rights instruments to s 9 of NZBORA.
[85] Significantly, these authorities from comparable jurisdictions make it clear that
the test of “disproportionately severe” or “grossly severe” involves a high threshold.
For example, in a 2023 decision of the ECHR, it was said the test of “grossly
disproportionate” would only be met “in very exceptional cases”, on “rare and unique
occasions”.[n. 77 Balahan v Sweden, above n 67, at [53].] The reason it has consistently been held to be a high threshold in the
extradition context is because variations in sentencing practices — even “great”
variations — between different nations are common.[n. 78 At [53]. See also Ahmad v United Kingdom, above n 62, at 70.] As the briefing paper in this
case put it: “Another country should not be expected to hold the same views and
standards about criminal punishment as [New Zealand], otherwise extradition would
be impossible.”
[86] These sentiments echo a constant theme in the overseas authorities that an
effective extradition process is founded upon respect for sovereignty and differences
in the judicial systems among various nations.[n. 79 See, for example, Lobban v Minister for Justice [2015] FCA 1361 at [71] and [76].] By entering into an extradition treaty
with another country, a nation displays confidence in the fairness of that treaty
partner’s system.[n. 80 See, for example, Canada (Attorney General) (United States of America) v Hillis, above n 61, at [101].] If countries are to be assured of cooperation when they seek
extradition from states whose laws may not conform exactly to their own, they must
be prepared to reciprocate.[n. 81 See, for example, United States v Burns, above n 61, at 328.] Further, a failure to adhere to these international norms
means countries run the risk of becoming safe havens for fugitive offenders.[n. 82 See, for example, Bujak v Minister of Justice, above n 60, at [56]; Gomes v Government of the Republic of Trinidad and Tobago [2009] UKHL 21, [2009] 1 WLR 1038 at [36]; and Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin), [2016] 1 WLR 551 at [9].]
[87] It follows as these authorities demonstrate, that contrary to Mr Mansfield’s
submission, the shocked conscience test is inextricably tied to the US context. It is
not enough for Mr [OMISSIS] to assert that simply because he will likely receive a much
longer prison term than he would if sentenced in New Zealand, that means neither the
Minister nor the High Court applied New Zealand law. The question is not whether
the likely sentence would shock the national conscience if imposed at home but rather
whether it would shock the national conscience for a person to face such a sentence in
another country after an extradition request and surrender. The difference in potential
jeopardy is required to be balanced with a myriad of factors including comity and
reciprocity which underpin the extradition regime and regarding which the properly
informed national conscience is taken to be aware.
[88] As a result, it has been said to be “well settled” and “clear” that:[n. 83 United States of America v Wilcox, above n 61. See also United States of America v Ferguson, above n 61, at [103]; and Canada (Attorney General) (United States of America) v Hillis, above n 61, at [104].]
[41] … absent sentences that would invoke behaviours of a nature like
torture, the death penalty, the excising of limbs, for example, the sentencing
regimes of other nations, no matter how much more severe than our own, will
not generally “shock the conscience” of the community. …
[89] The mere fact of a disparity in the length of imprisonment as between
respective countries, even a very significant disparity rendering what the local court
would consider a harsh sentence,[n. 84 See, for example, United States of America v UAS, above n 61, at [70]: the Canadian sentence range of one to 10 years contrasted with US range of 25 years to 99 years. See also in Gwynne v Canada (Minister of Justice), above n 61, at [27]-[28], where the majority noted that although the likely US sentence was harsh, severity alone was not enough and it was difficult to establish that the severity of a sentence in a foreign jurisdiction was a breach of the relevant human right.] is thus not in itself enough.[n. 85 United States of America v Ferguson, above n 61, at [102].] In Canada
for example, the courts have upheld surrender decisions involving significant differences
between the likely sentence in Canada as opposed to likely US sentence.
[90] In one case, United States of America v Wilcox, the Canadian sentence range
was 45 days to 10 years per count, compared with the US total sentence range of
26 years to 108 years.[n. 86 United States of America v Wilcox, above n 61, at [23]-[24]. Mr Wilcox was charged with four counts of sexual conduct with a minor. He was convicted by a jury of two charges, but the jury could not reach a verdict in respect of the other two. For his two convictions, Mr Wilcox faced a likely minimum sentence of 26 years. However, if his two convictions were overturned on appeal, the US reserved the right to conduct a new trial on all four counts. If he was convicted of all four counts in the new trial, he would face a minimum sentence of 52 years and a maximum sentence of 108 years.] In another, Canada (Attorney General) (United States of
America) v Hillis, the applicant faced a likely sentence of 90 days to three years’
imprisonment in Canada if convicted, whereas the likely range in the US was 30 years’
to life imprisonment.[n. 87 Canada (Attorney General) (United States of America) v Hillis, above n 61, at [28] and [40].] Similarly in United States of America v Ferguson, the
applicant faced a likely sentence in the range of three to four years’ imprisonment if
convicted at trial in Canada, but 15 to 19.5 years’ imprisonment if convicted at trial in
the US.[n. 88 United States of America v Ferguson, above n 61, at [97]-[98]. We also note that, in another Canadian case, Gwynne v Canada (Minister of Justice), above n 61, a decision surrendering a fugitive to the US to resume the remaining 110 years of his sentence of 120 years for extortion was upheld.]
[91] If Mr Mansfield’s criticism of the High Court judgment was intended to
suggest the Judge had held that the test involved consideration of the conscience of a
US national rather than the conscience of a New Zealander, we consider that also to
be an incorrect interpretation of the judgment. The judgment is clear that it is the
conscience of a New Zealander that is the operative conscience. But we repeat, it is a
New Zealander who is aware there are differences between foreign criminal justice
systems and our own systems and who understands the imperatives of comity and
reciprocity.
[92] As will be apparent, the High Court decision in this case regarding the
application of the shocked conscience test was entirely consistent with the overseas
authorities. We see no reason why those authorities should not be applied in
New Zealand and none was advanced on behalf of Mr [OMISSIS], other than a bare
assertion at one point of the submissions that s 9 of NZBORA does not require the
Minister to have regard to the extradition context. Given that the Minister is exercising
powers under the Extradition Act, we consider that proposition to be untenable.
We thus agree with the submission made on behalf of the Minister that there is no basis
for saying that the relevant law of New Zealand is materially different from overseas
jurisdictions, including of course the Canadian jurisdiction, which was the source of
the shocked conscience test that New Zealand has adopted.
Is Mr [OMISSIS] at risk of an irreducible prison sentence?
[93] As mentioned, it was common ground that as a matter of law it would be a
breach of s 9 of NZBORA if there is a real risk of Mr [OMISSIS] receiving an irreducible
life sentence, meaning no prospect at all of release.
[94] As also mentioned, none of the offences with which Mr [OMISSIS] has been
charged carry a life sentence. The Minister accepted however that the practical effect
of the long finite prison sentence that was likely to be imposed meant Mr [OMISSIS] was
at risk of spending the rest of his natural life in prison.
[95] Mr Mansfield contends that having accepted that and in the knowledge that
parole is not a feature of US federal law, the Minister erred by nevertheless going on
to find a sentence of 30 years would not be an irreducible life sentence for the purposes
of s 9 of NZBORA due to the availability of executive clemency and compassionate
release.
[96] As explained in the 2020 decision of Hafeez v Government of the United States
of America, compassionate release in the US requires a prisoner to persuade the court
that extraordinary and compelling reasons exist which would warrant a reduction of
the sentence.[n. 89 Hafeez v Government of the United States of America [2020] EWHC 155 (Admin), [2020] 1 WLR 1296 at [44].] The US Sentencing Commission has identified four scenarios which
would fulfil the definition of extraordinary and compelling: terminal illness, prisoner
is aged over 65 and experiencing a serious deterioration in health due to ageing, a
change in family circumstances resulting in the prisoner being the only caregiver and
a fourth undefined scenario.[n. 90 At [44].] Executive clemency for a federal offence is a
constitutional power vested solely in the President allowing them to pardon the
offender or commute the sentence. There is no legal limit on the number of
applications that a prisoner may make for executive clemency.[n. 91 At [45] and [58].]
[97] As also explained in Hafeez:
[45] … The basis for commutation of sentence pursuant to executive
clemency is set out in guidance published by the US Department of Justice.
It is as follows:
“Commutation of sentence is an extraordinary remedy. Appropriate
grounds for considering commutation have traditionally included
disparity or undue severity of sentence, critical illness or old age, and
meritorious service rendered to the government by the petitioner eg,
co-operation with investigative or prosecutive efforts that has not been
adequately rewarded by other official action. A combination of these
and/or other equitable factors (such as demonstrated rehabilitation
whilst in custody or exigent circumstances unforeseen by the court at
the time of sentencing) may also provide a basis for recommending
commutation in the context of a particular case.”
[98] In Mr Mansfield’s submission, neither compassionate release nor executive
clemency is anything more than a theoretical possibility for Mr [OMISSIS] and “the grim
reality” is that he will serve the rest of his natural life in prison with the only real hope
being a terminal illness which might see him released for weeks, perhaps even months,
before he actually dies.
[99] However, that is not the settled approach taken in the authorities. What has
been consistently held to make a life sentence (even a life sentence without parole)
reducible and hence rights consistent is the existence of a genuine review mechanism,
not the likelihood of it being applied for the benefit of the particular individual whose
extradition is sought.[n. 92 Singler v Government of the United States of America, above n 67, at [56]-[63].] The only requirement is that the review mechanism be in
existence at the time of sentencing.[n. 93 See, for example, Sanchez-Sanchez v United Kingdom, above n 64, at 371; Balahan v Sweden, above n 67, at [54]; and Hayes v United Kingdom ECHR 56532/22, 1 July 2025 at [94].] Thus, for example, whole of life sentences
imposed in the domestic English context have been held not to amount to irreducible
life sentences because the Secretary of State has discretion to release on compassionate
grounds.[n. 94 See, for example, R v Bieber [2008] EWCA Crim 1601, [2009] 1 WLR 223 at [48]-[50], where the Court held that the Secretary of State’s power of release under s 30(1) of the Crime (Sentences) Act 1997 meant that a whole life order was not irreducible and therefore not in violation of art 3 of the Convention. We note that in Vinter v United Kingdom (2013) BHRC 605 (Grand Chamber) at [125]-[130] a whole life order was deemed irreducible because the Grand Chamber considered there was a lack of clarity as to whether the Secretary of State’s power under s 30 provided prisoners an appropriate and adequate avenue of redress. The English Court of Appeal addressed the Grand Chamber’s uncertainty in Regina v McLoughlin [2014] EWCA Crim 188, [2014] 1 WLR 3964 at [28]-[36] and held that the s 30 power did provide a sufficient avenue of redress. The Grand Chamber has since confirmed that Regina v McLoughlin has clarified the domestic law and that a whole life sentence is consistent with art 3 of the Convention and reducible due to the Secretary of State’s s 30 power: see Hutchinson v United Kingdom (2017) 43 BHRC 667 (Grand Chamber) at [70]-[72].] Whether the Secretary of State is unlikely to exercise the discretion in the
circumstances of the particular case at hand is considered irrelevant.[n. 95 In New Zealand, the equivalent mechanism would be the royal prerogative of mercy: see Letters Patent Constituting the Office of the Governor-General of New Zealand 1983, cl 11. Under s 41 of the Parole Act 2002, the Parole Board also has power to grant compassionate release.]
[100] In a 2025 English decision, this approach was confirmed in the context of a
request to extradite a person indicted in Colorado for the murder of two children and
one of attempted murder of another child.[n. 96 Singler v Government of the United States of America, above n 67.]
Under Colorado state law, if convicted
the person would face a mandatory sentence of life imprisonment without parole.[n. 97 At [9].]
That was held not to be an irreducible life sentence because Colorado has a mechanism
for executive clemency. It was the availability of the system that was held to be
relevant, not whether given the seriousness of the alleged offending the State Governor
was unlikely to grant it.[n. 98 At [56]-[63].] The Court also held it was not necessary for the requesting
state to be able to point to cases where offenders in a similar position had secured
releases,[n. 99 At [49] and [59].] and concurred with the District Judge’s reliance on the following passage
from Amnott v Lord Advocate:[n. 100 Amnott v Lord Advocate [2022] HCJAC 6 at [38], cited with approval in Singler v Government of the United States of America, above n 67, at [54].]
The existence of compassionate release and executive clemency within the US
criminal justice system is sufficient to meet the requirements of Article 3 in
the extradition context, even if it may not be likely that the appellants will be
afforded either remedy over time.
[101] To similar effect is the following statement in Kafkaris v Cyprus:[n. 101 Kafkaris v Cyprus (2008) 49 EHRR 35 (Grand Chamber).]
98 In determining whether a life sentence in a given case can be regarded
as irreducible, the Court has sought to ascertain whether a life prisoner can be
said to have any prospect of release. An analysis of the Court’s case-law on
the subject discloses that where national law affords the possibility of review
of a life sentence with a view to its commutation, remission, termination or
the conditional release of the prisoner, this will be sufficient to satisfy art 3 …
It follows that a life sentence does not become “irreducible” by the mere fact
that in practice it may be served in full. It is enough for the purposes of art 3
that a life sentence is de jure and de facto reducible.
[102] This statement from Kafkaris v Cyprus was endorsed in the English extradition
decisions of Singler,[n. 102 Singler v Government of the United States of America, above n 67, at [11] referring to the District Judge’s summary. See also at [19] for Foster J’s approval of the District Judge’s summary.] and Hafeez where in the latter case it was also said that no
subsequent authority in the ECHR has cast doubt on the fundamental principles
articulated in Kafkaris.[n. 103 Hafeez v Government of the United States of America, above n 89, at [48].]
[103] In light of these authorities, we agree with the High Court that it was open to
the Minister to find that Mr [OMISSIS] was not facing an irreducible life sentence.[n. 104 High Court judgment under appeal, above n 6, at [132].] The
Minister did not err either in law or fact and the decision was reasonable.
[104] None of the grounds of appeal having succeeded, it follows the appeal should
be dismissed.
Costs
Costs on the appeal
[105] The appeal having failed, we make an award of costs in favour of each
respondent against Mr [OMISSIS]. The costs are to be calculated for a standard appeal
on a band A basis together with usual disbursements. In each case, we certify for two
counsel.
Costs on the application for an adjournment
[106] At the commencement of the hearing, we declined an application made on
behalf of Mr [OMISSIS] for an adjournment and awarded one set of costs to the
respondents with a 50 per cent increase.
[107] The background is as follows.
[108] In November 2025, this appeal was allocated the fixture date of 21 April 2026.
[109] At 7.30 pm on 20 April 2026, counsel for Mr [OMISSIS] filed and served a
memorandum seeking an adjournment of the hearing. The memorandum was
accompanied by an affidavit and a large volume of papers totalling some 130 pages.
The material included medical reports relating to Mr [OMISSIS] (the most recent of the
reports being dated 29 January 2026) and a legal opinion from Mr [OMISSIS]’s US-based
lawyer. The legal opinion was to the effect that a US Supreme Court decision issued
on 25 March 2026, Cox Communications Inc v Sony Music Entertainment,[n. 105 Cox Communications Inc v Sony Music Entertainment 607 US ____ (2026), 146 S Ct 959 (2026).] meant
the US charges against Mr [OMISSIS] could no longer be sustained.
[110] The memorandum also advised that Mr [OMISSIS] was awaiting the Minister’s
decision on the further medical evidence which had been presented to him
on 30 January 2026. It acknowledged that the medical evidence had been the subject
of a previous application for an adjournment of the High Court hearing before
Grice J.[n. 106 See High Court judgment under appeal, above n 6, at [161].] An argument raised in support of that application was the risk of multiple
additional review proceedings.[n. 107 At [167].] Grice J declined to grant an adjournment.[n. 108 At [5] and [161].]
The memorandum submitted however that the recent US Cox decision now increased
that risk of multiple additional judicial review proceedings and hence the desirability
of an adjournment.
[111] In a joint memorandum, the respondents strongly opposed any adjournment
and suggested it was an obvious attempt by Mr [OMISSIS] to delay surrender to the US.
Their counsel told us that although they had recently been in contact on a daily basis
multiple times with Mr [OMISSIS]’s counsel regarding hearing length and the list of
issues, there had been no indication of any possible request for an adjournment.
A letter attaching the legal opinion from the US based lawyer and the Cox decision
was only provided to the respondents at 3 pm on 20 April 2026. Even then
Mr [OMISSIS]’s counsel did not indicate an adjournment would be sought. That did not
eventuate until 7.30 pm.
[112] The respondents submitted that the health information had been the basis of
four unsuccessful attempts in the High Court to adjourn the proceeding. On each
occasion, in declining an adjournment, that Court had emphasised the need for prompt
and expeditious resolution of extradition matters. The respondents further pointed out
that when discussing timetabling in November 2025 for the hearing of this appeal,
Cooke J was aware of the possibility of an application to the Minister regarding health
information but clearly contemplated that even if that happened it would not prevent
this appeal from proceeding.
[113] As regards the US legal opinion, the respondents noted that the Cox decision
appears to approve an earlier US decision,[n. 109 Cox Communications Inc v Sony Music Entertainment, above n 105, at 7, citing Metro Goldwyn-Mayer Studios Inc v Grokster Ltd 545 US 913 (2005).] which was discussed by our Supreme
Court when finding Mr [OMISSIS] was eligible for surrender in 2020.[n. 110 Supreme Court eligibility judgment, above n 3, at [318]-[320], discussing Metro Goldwyn-Mayer Studios Inc v Grokster Ltd.] The respondents
also observed that neither the affidavit nor the memorandum filed in support of the
adjournment specify when Mr [OMISSIS] or his counsel first learnt of the Cox decision.
All that was said in the memorandum filed on behalf of Mr [OMISSIS] was that
“the timing of this application for adjournment is unfortunate but regrettably this is
simply a function of when the Cox decision was issued”. The respondents however
provided the Court with screenshots of five tweets made by Mr [OMISSIS] between
27 and 31 March 2026 about the Cox decision and its effect on his case, including
comments that it meant a dismissal or rehearing of the proceedings against him was
now “unavoidable”.
[114] The respondents submitted that the application for an adjournment should be
declined with increased costs given the repetitive nature of the application, the
proximity to the hearing and the apparent attempt to mislead the court.
[115] At the commencement of the hearing before us, we asked Mr Mansfield if he
wanted to say anything more in support of the application for an adjournment. We also
stated that in particular we would like him to address the suggestion in the respondents’
memorandum about the Court being misled, given it appeared that despite Mr [OMISSIS]
knowing about the Cox decision back in March, the adjournment application was filed
at the last minute.
[116] In response, Mr Mansfield said his instructions had been to advance an
application for an adjournment but that as the memorandum had indicated he
considered it was unlikely to be granted. He did not accept the Court had been misled
or that increased costs were justified. He said the Cox decision had only come out at
the end of March and given it was not that far through April he did not consider delay
was a concern. He also stated the intention was only to appraise the Court of the Cox
decision so as to avoid being criticised by the US or the Crown for belatedly raising it
later.
[117] After hearing from Mr Mansfield, the panel briefly conferred and as mentioned
declined the application for an adjournment with increased costs.
[118] However, during reply submissions, Mr Mansfield took the opportunity to
return to the subject of the adjournment application. He said at the beginning of the
hearing, he had been surprised by the Court asking him to respond to the suggestion
Mr [OMISSIS] had misled the Court, not having had an opportunity to consider the
respondents’ memorandum. He said he had not anticipated the respondents would file
a memorandum because in his own memorandum it had been made “as clear as we
could do” that counsel did not expect the Court would entertain an application for an
adjournment and would likely proceed with a hearing. In his submission, given the
date of the Cox decision and the fact the legal opinion was only received on 17 April
2026, it was not misleading to describe it as a recent development.
[119] Mr Mansfield further submitted that if the Court considers this late request for
an adjournment really warranted increased costs, then “so be it”, but the real likelihood
was that if Mr [OMISSIS] is surrendered to the US the costs will not be paid and the
respondents will have to wait until he has served his sentence of up to 150 years or
until his estate reaches probate.
[120] We understood Mr Mansfield’s submission to be a request that we revisit the
increased costs award.
[121] In our view, whatever the intentions were in seeking an adjournment, the fact
remains it was sought. The respondents could not just ignore the application which
was sprung on them at the very last minute. They were put to unnecessary expense in
having to review the material and then respond to it literally overnight under urgency.
To suggest that the eleventh-hour timing was simply a function of when the Cox
decision was released was a misleading explanation in so far as Mr [OMISSIS] was
suggesting he had only just become aware of the decision. The tweets indicated he
had in fact been aware of it and its claimed effect on his own case back on 27 March.
In short, the respondents were unreasonably taken by surprise.
[122] We therefore confirm the decision to award increased costs on the basis of a
50 per cent increase in the amount of the costs payable under the scale rules.
Outcome
[123] The appeal is dismissed.
[124] The appellant must pay each of the respondents costs for a standard appeal on
a band A basis, together with usual disbursements. We certify for two counsel.
[125] The appellant must pay one set of costs to the respondents in relation to the
adjournment application on the basis of a standard application, band A with a
50 per cent increase.
Solicitors:
Holland Beckett, Tauranga for Appellant
Luke Cunningham Clere, Wellington for First Respondent
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Second Respondent