Director of Public Prosecutions v Shaik
[2020] VCC 909
•22 June 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-02226
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FAROK SHAIK |
---
| JUDGE: | HIS HONOUR JUDGE CAHILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 June 2020 |
| DATE OF SENTENCE: | 22 June 2020 |
| CASE MAY BE CITED AS: | DPP v Shaik |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 909 |
REASONS FOR SENTENCE
---Subject: causing a person to remain in forced labour contrary to s 270.6 of the Criminal Code (Cth)
Catchwords: guilty plea – restaurant owner employed migrant worker – refused to pay her wages – offending over a period of 7 months – serious offending – 7 year delay in prosecution – 1st offender – rehabilitation well advanced
Legislation Cited:
Cases Cited:
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Breckweg | Office of Public Prosecutions |
| For the Accused | Mr C. Morgan |
HIS HONOUR:
1Farok Shaik, you have pleaded guilty to one charge of causing a person to remain in forced labour.
2This is Ramandeep Mangat is an Indian national who came to Australia from India on a Higher Education visa in 2007. A year later her husband joined her here on a similar visa.
3In 2010, they obtained bridging visas and intended to apply for permanent residency. In May 2012, you had advertised to sponsor migrant workers under the Regional Support Migration Scheme for persons to work at your country restaurants. Ms Mangat and her husband responded.
4They both started working for you in August 2012 at your restaurant at Yarrawonga. You agreed to pay each of them a wage and provide them with food and accommodation. Ms Mangat was employed as a food and beverage attendant. You employed her husband as a cook. You agreed to sponsor her, but not him.
5Under the Migration Scheme, a sponsored worker was able to transition to a permanent visa once she or he had lived for two years in a specified regional area. You agreed to pay Ms Mangan an annual salary of $42,000 plus superannuation to work at your regional restaurants. While she worked for you, you refused to pay her any wages.
6After her first week of work, she made weekly requests to you for payment. Initially, you told her the restaurant was not running well so she needed to wait. After a month, she and her husband met with you. The restaurant was running well and she asked for her wages. You told her she should think of her visa, not her wages, and you said you had police friends.
7On 6 September 2012, you submitted her sponsor nomination to the Immigration Department. In October, Ms Mangat inquired with local police about your refusal to pay her wages. They suggested she contact Fair Work Australia. She did not because she thought she might not have sufficient proof of your failure to pay her.
8Around the same time, using abusive language, you told her you were unhappy with her cleaning at the restaurant, that it was not easy to get sponsorship so she needed to give her best and then you would send the required documents to Immigration.
9In late October 2012, because without her wages she and her husband were struggling financially, she asked for your permission to obtain additional paid work elsewhere. With their assurance they would both continue working at your restaurants, you gave your permission. She agreed to continue to work because she felt if she did not, you could send her home or say she had never worked for you. Her husband continued to work voluntarily and was paid wages.
10Ms Mangat got work at a local motor inn and also continued to work for you at your Beechworth, Yarrawonga and Bendigo restaurants without pay despite repeated requests.
11In May 2013, you told her you were arranging medicals and a police clearance for her sponsorship. Later in that month, when Ms Mangat and her husband met with you, she asked you how you would prove her employment to Immigration if you were not paying her. You told her you knew what you were doing. You said you had previously sponsored others and you threatened to harm her if she continued to ask about money.
12You used an ambiguous Punjabi term which could mean your threat was either to kill or hit her. She felt intimidated and agreed she would not ask again. She did make subsequent requests for her wages by telephone and email but never in person.
13Around September 2013, you asked her for her tax file number so you could pay her tax, notwithstanding you had not paid her any wages. Relying on your assurance you knew what you were doing, she sent you her tax file number.
14Around the same time, she asked you for pay slips to show her family who were visiting from India, she was working. The fact was, she wanted them to support a rental application. You provided her with six false payslips.
15Ms Mangat got a paid job in a nursing home in September 2013 because, without wages from you, she and her husband were struggling financially and borrowing from friends to pay bills. It was only when she obtained that other job that she felt she was able to leave her job with you.
16Until that point, she felt forced to work for you because her application for a permanent residence visa was contingent upon you continuing to sponsor her under the Migration Scheme.
17On 4 October 2013, she quit her job with you.
18Early in 2014, the Immigration Department notified Ms Mangat her visa application had been refused, because you had failed to lodge required documents. She notified you by SMS messages. Your response was you could not speak to her.
19In March 2014, she lodged a complaint with the Fair Work Ombudsmen in relation to your failure to pay her wages. You conceded to the Ombudsman that you had failed to pay her and her husband proper wages. You were prosecuted for breaches of the Fair Work Act in the Federal Circuit Court.
20Anti-Slavery Australia reported your wrongdoing to police. In May 2015, Federal Police spoke to Ms Mangat. On 9 August 2016, they executed a search warrant at your Wangaratta restaurant. There they found Ms Mangat's employment contract, 32 false payslips, from 4 July 2012 to 29 September 2013, for her, and five petty cash vouchers which recorded false payments to her.
21You told police, under caution, that Ms Mangat had worked for you, but at first you did not pay her until it became clear she would remain and that you then did pay her. You told them that she took her wages from the restaurant's takings and recorded them on petty cash vouchers and you told them that when she asked for a group certificate, you completed one for $36,498. You denied you would ever threaten her with cancellation of her visa or harming her if she continued to ask you for wages.
22On 25 July 2017, you were charged with this and other offences arising out of your employment of Ms Mangat and her husband. After a contested committal which proceeded on 25 November 2019, you pleaded guilty to the charge on the indictment before me.
23The Forced Labour provisions which criminalised your behaviour, came into effect on 8 March 2013. Ms Mangat left her employment with you on 4 October 2013. Accordingly, the period of your offending was nearly 7 months.
24By your guilty plea you have admitted between those dates, you engaged in conduct which caused her to continue to work for you as forced labour. The maximum penalty for the offence is nine years' imprisonment.
25I have read Ms Mangat's victim impact statement. Before she met you, she was living a good life and happy. Because you forced her to work without wages, she was in a constant state of stress, insecurity and worry. She struggled financially and you made her feel hopeless and useless. She was a migrant worker. You abused the power you had over her and exploited her on threat of deportation for your own financial gain. You told her no-one would catch you out because you are an Australian citizen. By your crime, you caused her great hardship and uncertainty about her future.
26You were born on 31 October 1972. You were 40 years old when you offended and you are now 47.
27You have no previous convictions and nothing subsequent to this offending.
28In 1996, you arrived in Australia from India. In 1999, you obtained a Master's in Information Technology and for the next six years you worked in a number of IT positions in Melbourne.
29In 2002, you married and you have two children, now aged 13 and 11 years. Your wife supported you in court.
30In 2006, with your family, you moved to Wangaratta to take up a position as the Infrastructure Director at North East Wangaratta Hospital where you worked for three years. From 2005, you began operating restaurants in North Eastern Victoria.
31By 2014, you were running six restaurants. As a result of the Fair Work investigation into this offending, you stopped working in the industry. Indeed, you have not worked since.
32Your wife is the family breadwinner. She runs the restaurant in Wangaratta and she also works part time at the local hospital.
33You took over the role of homemaker. When these proceedings are concluded, you hope to resume work in the IT area. To that end, you currently work as a volunteer at the local community radio station. The radio station president has known you for eight years. He described you as a “gentle, kind and accessible community member”. He confirmed you are providing technical support to upgrade the station's website. He wrote you, 'have been limited in what you can offer prospective employers while you wait the outcome of these proceedings.'
34He is also a psychologist and you consulted him professionally three years ago. You told him the ongoing court proceedings had taken a great toll on your family and you financially and emotionally.
35On 20 February 2019, when he tested you psychologically, he identified you had extremely severe levels of depression and anxiety, along with severe levels of stressful thoughts. He is aware you were to plead guilty to a forced labour charge. He said you are very sorry for what had occurred and you are doing your best to redeem yourself from your past indiscretion.
36In his opinion, the proceedings have taken a considerable toll on your personal life and you have suffered intensive emotional and mental health issues as a result.
37In letters to the court, four of your friends who live locally wrote you have for many years before and since your offending, helped others in your community, assisting newcomers with accommodation and introducing them into the community, opening your home for weekly prayer meetings and during the recent summer bushfires, providing hundreds of meals to firefighters and bushfire victims.
38According to them, you had enjoyed high standing as a community leader until the disclosure of your wrongdoing. You have since been shamed, and many extended family members and friends have disowned you.
39Your friends describe you as an otherwise kind and generous man whose offending is greatly out of character to the person they know. To them, you have expressed regret for your actions.
40A long-time close friend who lives in Melbourne, but sees you regularly, described you as “a decent person at the core”.
41Mr Morgan, who appeared for you, in written and oral submissions, told me when you employed Ms Mangat you had around 30 employees, nearly half of whom were visa applicants and by the time she started work, there was a downturn in business and you told her you could not and would not pay her wages.
42He acknowledged you caused Ms Mangat to fear you could have her deported if she did not continue to work for you. He submitted there was an absence of some of the aggravating features often attendant to this type of offending. For example, you did not take Ms Mangat's passport from her or restrict her physical movement.
43He submitted Ms Mangat was well educated and, while vulnerable to your coercion, less helpless than someone without a passport and living unlawfully in Australia. He submitted the gravity of your offending was at the lower end of the range for an offence of the type.
44He told me, in the Federal Circuit Court proceedings, you were ordered to pay $50,872.50 in fines for failing to pay proper wages to Ms Mangat and her husband. The fines are to be paid to them as part restitution.
45You have been making monthly instalment payments of $100 and, recently, on 3 June, you paid a lump sum of $7872.50. You still owe approximately $25,000. He told me while you had a number of migrant employees, Ms Mangat was the only victim of forced labour.
46In mitigation of penalty, he relied on your plea of guilty for its' utilitarian value but also, with your expressions of contrition, as demonstration of your remorse; your good character, this crime is your first and only offending, and you have a history of service to your community, the shame you have endured in your community, the penalty of the Federal Circuit Court fines, your excellent prospects of rehabilitation, you have skills for employment and strong family and community support and you have not reoffended since, hardship to your family, particularly your children for the loss of their main carer if you are imprisoned, and the delay in the prosecution of the case.
47He acknowledged general deterrence is a significant sentencing factor. He submitted specific deterrence has been largely affected by the Fair Work proceedings and the loss of your businesses. He submitted a non-custodial disposition would be within sentencing range.
48Ms Breckweg, who appeared for the prosecution, submitted your offending was objectively serious, taking into account:
49Firstly, to advance your own financial interests you exploited the power imbalance between Ms Mangat and you, as you were her employer, and her vulnerability, as she was relying on you for sponsorship for her permanent residency application, to force her to work for you without wages and you deceived her with false promises to pay when business improved, and at times, made threats to take steps to cancel her visa and on one occasion, to harm her.
50Secondly, you knew your conduct was causing her to remain in forced labour and thirdly, you also prepared false wages documents to conceal the fact you were not paying her.
51She submitted your guilty plea was not entered at the earliest opportunity, nor does it evince remorse. She submitted your expressions of remorse to friends are indications of regret for your predicament and not for your wrongdoing.
52Ms Breckweg helpfully referred me to a Queensland Supreme Court Court of Appeal decision of R v Pulini [2019] QCA 258 for assistance as to the sentencing principles applicable to slavery-like cases.
53She submitted, given the seriousness of your offending and the absence of any compelling mitigatory circumstances, a term of imprisonment with a component of that term to be served immediately is required.
54For the reasons the prosecutor advanced, your offending was objectively serious. Parliament legislated the anti-slavery provisions including s.270.6A to accord with Australia's International legal obligations to protect the right to freedom from slavery and forced labour.
55The gravamen of your offending was your misuse and abuse of power to force Ms Mangat to work for you. You were a businessman and an Australian citizen. She was a migrant worker who aspired to permanent residence. You exploited her on threat of deportation for your own financial gain.
56I have read Judge Wilson's decision in the fair work proceedings against you, reported as Fair Work Ombudsman and Shaik [2016] FCCA 2345. He described your conduct as deliberate and well thought out, and I agree. (at [147])
57He noted you confessed your mistakes and did not contest the evidence you had failed to pay Ms Mangat and her husband proper wages. However, His Honour foun, d considering you had not made any attempt to make reimbursement, your apologies were hollow and your contrition was not genuine. (at [135].)
58While you have since pleaded guilty to the criminal offence, expressed your regret and made some reparation, you maintained a false position of innocence when police questioned you and your repayment of the fines has been slow.
59On the material before me, I am prepared to find that you have shown some limited remorse. I accept, to the extent you have made some reparation, you have not profited from your crime.
60I accept there would be hardship to your family if you are imprisoned. Such adverse consequences are a commonplace incident of sentencing. Family hardship warrants mitigation only in exceptional circumstances. Mr Morgan was not heard to contend the hardship would be exceptional.
61I accept you have been shamed in your community and your loss of reputation has been an additional punishment, however it does not loom large in the sentencing synthesis.
62I accept, as the prosecutor submitted, because of the importance of general deterrence, your personal factors are to be given less weight.
63However, I must consider the lengthy delay in the prosecution of this case.
64While Mr Morgan did not contend the delay was caused by the prosecutorial process or the administration of the courts, it was common ground the delay was not attributable to you. It is seven years since you offended. You have not re-offended subsequently and have therefore gone a long way towards rehabilitating yourself. It is four years since the police searched your home and questioned you, and three years since you were charged. For that considerable time, you have been in a state of uncertain suspense as to what might happen to you.
65In R v Cockerell [2001] VSCA 139 where there was a five year delay in prosecution, Chernov JA, with the President and Buchanan JA agreeing, said at [10]:
'The Courts have recognised that such delay, which, as here, cannot be attributed to the offender, constitutes a powerful, mitigating factor at a number of levels. First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentencing should not jeopardise the continued development of this process, but should be tailored to ensure as much as possible, that the offender has the opportunity to complete the process of rehabilitation.
Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her.'
66In my opinion, delay is a very significant factor in this case and both considerations, rehabilitation and fairness, call for a tempering of the punitive purposes of punishment. (See Fattah v The Queen [2016] VSCA 43 at [37] - [48]) referring to the Western Australian decision of Duncan and also Hicks v The Queen [2016] VSCA 162.
67I have derived some guidance from the decision in R v Pulini. In that case, a husband and wife were convicted after trial of two counts of trafficking in persons and two counts of causing a person to enter into or remain in forced labour. They also pleaded guilty to four counts of harbouring an unlawful non-citizen.
68Their conviction appeals and appeals against total effective sentences of, in the case of the husband, five years and the wife, six years, each with a minimum non-parole period of two years, were dismissed.
69Morrison JA with McMurdo JA and Bradley J agreeing, described their offending at paragraph 112, as follows:
'Ms RM was brought into Australia under a plan to effectively force her to remain on as a poorly paid servant of the Pulini family by making her overstay her temporary visa and with her passport confiscated. She was kept in that position, paid at a rate which Mr Pulini described as nowhere near a normal wage but merely a token of appreciation, for a period of eight years.
During the vast bulk of that time she was unlawful non-citizen, acutely aware of her position and vulnerability, and fearful of what might follow if she was discovered. Those fears were fed by the Pulinis telling her to lie about her status, on other occasion, to keep secret while they were absent...'
70As Ms Breckweg fairly conceded, their offending was much more serious than yours. Nevertheless, taking into account the differences in the offending, I have used the case as a guidepost to the sentence I must impose on you.
71As a Federal offender, you are to be sentenced in accordance with the relevant provisions of Part 1B of the Commonwealth Crimes Act and in particular, the provisions of s.16A.
72Pursuant to sub-s.16A(1) of the Crimes Act, I am required to impose a sentence which is of severity appropriate in all the circumstances of the offence.
73In determining the appropriate sentence, I am required to take account of the matters listed in sub-s.16A(2) and any other relevant matters insofar as they are relevant and known to me.
74Sub-s.17A(1) provides that I shall not pass a sentence of imprisonment on you, unless, having considered all of the available sentences, I am satisfied no other sentence is appropriate in the circumstances.
75Having considered all other available sentences, I am of the opinion that the only appropriate sentence necessary to achieve the purposes of sentencing is a period of imprisonment.
76Please stand Mr Shaik.
77By the sentence I impose, I must denounce your conduct, I must punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
78Taking into account the circumstances of your offending and its affects, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of causing a person to remain in forced labour, you are convicted and sentenced to a term of imprisonment of 18 months. That sentence is to commence today.
79I have decided, taking into account the objective gravity of your offending, and the interests of the community, which includes your continued rehabilitation, it is appropriate to order your immediate release.
80Accordingly, I direct that you are to be released forthwith upon entering into a recognisance pursuant to paragraph s.21B of the Crimes Act in the sum of $5000 to be of good behaviour for 3 years.
81Mr Shaik, you will not be required to serve the term of imprisonment provided you do not commit an offence, for which you could be jailed, during the next 3 years
82If you do commit such an offence, you will be brought before me and liable to have to serve the term of 18 months imprisonment imposed for this offending. You are not required to pay the recognisance of $5000 now, but you would be liable to pay it in the event you breached the good behaviour condition.
83As the law requires, I have imposed a less severe sentence for your guilty plea. Accordingly, I am required to state the notional sentence I would have imposed otherwise.
84But for your plea of guilty, I would have sentenced you to two years, three months' imprisonment and ordered your release after serving nine months.
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