Balajadia v The Queen - [2018] NZCA 483

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA117/2018
[2018] NZCA 483

BETWEEN	VIRGIL BALAJADIA Appellant
AND	THE QUEEN Respondent

CA183/2018
BETWEEN	LUISITO BALAJADIA Appellant
AND	THE QUEEN Respondent

Hearing:	25 July 2018
Court:	Asher, Courtney and Moore JJ
Counsel:	P E Dacre QC for Appellants R M A McCoubrey and J T Parry for Respondent
Judgment:	8 November 2018 at 10 am

JUDGMENT OF THE COURT

A    The application for an extension of time to appeal in CA183/2018 is granted.
B    The appeal against sentence in CA117/2018 is dismissed.
C    The appeal against sentence in CA183/2018 is dismissed.

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REASONS OF THE COURT

(Given by Moore J)

Introduction

Following a five-day jury in the District Court at Auckland, Mrs Virgil Balajadia and Mr Luisito Balajadia were found guilty of multiple offences under the Immigration Act 2009. Mrs Balajadia was convicted of two charges of exploitation of a temporary worker, relating to a serious default under the Holidays Act 2003 and the failure to pay wages under the Minimum Wage Act 1983,[1] and five charges of providing false or misleading information, in the form of individual employment agreements, to Immigration New Zealand (INZ).[2] Mr Balajadia was convicted of two charges of exploitation of a temporary worker and two charges of providing false or misleading information to INZ.
[1]Immigration Act 2009, s 351(1)(a)(i) and (ii). The maximum penalty is seven years’ imprisonment and/or a fine not exceeding $100,000.
[2]Section 342(1). The maximum penalty is seven years’ imprisonment and/or a fine not exceeding $100,000.
On 8 February 2018 Judge Dawson sentenced Mrs Balajadia to two years and two months’ imprisonment and Mr Balajadia to eight months’ home detention.[3] They both appeal their sentences on the grounds that the Judge erred in fixing a manifestly excessive starting point and failed to give sufficient credit for remorse.[4]
[3]Police v 3 Kings Food Distributors Ltd [2018] NZDC 2173. Both were also ordered to pay reparation of $7,200 each.
[4]Mrs Balajadia’s notice of appeal stated that she also wished to appeal her convictions. However, the submissions filed on her behalf address sentence only. We therefore treat the appeal against conviction as abandoned.
Mr Balajadia’s notice of appeal was filed 26 days out of time and thus requires leave. The Crown did not oppose the application. We are satisfied that Mr Balajadia’s appeal, both in respect of the starting point and the failure to consider a settlement agreement, is arguable and accordingly grant leave.

Factual background[5]

[5]For the purposes of the appeal the appellants were content to rely on the summary of facts.

Mr and Mrs Balajadia are husband and wife. They immigrated from the Philippines in 2001 and are now New Zealand citizens. Mrs Balajadia is the sole

shareholder and director of 3 Kings Food Distributors Ltd (3 Kings), which trades as 3 Kings Restaurant (the Restaurant).[6]

[6]3 Kings was found guilty of two charges of exploitation of a temporary worker. It reached a settlement with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Balajadia v The Queen

Details

AGLC: Balajadia v The Queen [2018] NZCA 483
Case: [2018] NZCA 483
Decision Date: 8 November 2018

CaseChat Overview and Summary

The case of Balajadia v The Queen involved appeals by Virgil Balajadia and Luisito Balajadia against their respective sentences imposed by the District Court at Auckland. The couple were found guilty of multiple offences under the Immigration Act 2009, including exploitation of temporary workers and providing false or misleading information to Immigration New Zealand (INZ). The appeals centred on the contention that the sentencing judge had erred in setting excessively high starting points and failed to adequately consider the appellants' remorse.

The Court of Appeal examined whether the starting points for the sentences were too high, considering the nature and extent of the offending. It was noted that the appellants had exploited five Filipino workers, subjecting them to poor working conditions and underpayment, which the Court found to be a very serious form of offending. The Court concluded that the starting points were not manifestly excessive, given the level of exploitation and abuse of trust involved.

The Court also considered whether the appellants' remorse had been properly taken into account. While Mrs Balajadia had made some payments to one of the victims, the Court found that her expressions of remorse were not clear and were accompanied by rationalisations for her actions. For Mr Balajadia, the Court was satisfied that the discounts for his good character and remorse were adequate.

Ultimately, the Court dismissed both appeals against sentence, finding that the starting points and discounts applied were appropriate in the circumstances. The application for an extension of time to appeal in one of the cases was granted.

Orders