Elliott v The Queen - [2010] NZCA 611

IN THE COURT OF APPEAL OF NEW ZEALAND
CA519/2010
[2010] NZCA 611
BETWEENMILES GAISFORD ELLIOTT

Appellant

ANDTHE QUEEN

Respondent

Hearing:8 November 2010

Court:Ellen France, Gendall and Cooper JJ
Counsel:M J Phelps for Appellant

N P Chisnall for Respondent

Judgment:14 December 2010 at 10.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooper J)
Introduction
[1]        On the third day of a trial scheduled to run for six weeks, the appellant and three co-accused pleaded guilty to a charge that between 30 September 2004 and 5 December 2006 they conspired for a material benefit to aid or abet persons to remain in New Zealand unlawfully, or to breach a condition of a permit granted to them.
[2]        The charge was laid under s 142(1)(ea) of the Immigration Act 1987 and s 310 of the Crimes Act 1961. The appellant and two co-accused were directors of Contract Labour Services (NZ) Ltd (the Company) and were each sentenced to three years’ imprisonment. The fourth accused was employed by the Company as a pay clerk and he was sentenced to nine months’ home detention.
[3]        The appellant now appeals against the sentence.
Background facts
[4]        According to the agreed summary of facts, the Company provided seasonal labour in the horticulture and viticulture industries, operating primarily in Hawkes Bay where it was the largest labour supply company of its type, but also in Marlborough, Tasman, Christchurch and Pukekohe. It had an annual turnover of $4.9 million for the six months from 30 September 2004 to 31 March 2005, of approximately $7.4 million for the year ending 31 March 2006 and approximately $5.3 million for the period from 1 April to 22 December 2006.
[5]        The industries serviced by the Company had experienced labour shortages for a number of years. In response, the directors of the Company supplemented the labour force with illegal workers. Their illegal status arose because they were either over-stayers, persons who had jumped ship or were working in breach of visitor or student permits. There was a direct financial benefit for the company in using these workers and its turnover was increased as a consequence. The directors of the Company attempted to distance themselves from the use of the illegal labour by the use of sub-contractors who were either legitimate or fictitious. They engaged legitimate sub-contractors knowing that many of the workers that they employed were illegal. They also used fictitious sub-contractors so as to disguise the use of illegal workers who were in fact employed by the Company but not recorded on its payroll.
[6]        The workers used fell into three categories. Those in fact employed by the Company (referred to as the “A” list of workers), those employed by the company but attributed to false sub-contractors (known as the “B” list of workers), and those employed by legitimate sub-contractors. It was accepted that most on the “B” list were illegal.
[7]        The false sub-contractors were used to provide false invoices…

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 Elliott v The Queen

Details

AGLC: Elliott v The Queen [2010] NZCA 611
Case: [2010] NZCA 611
Decision Date: 14 December 2010

CaseChat Overview and Summary

Miles Gaisford Elliott has appealed against his sentence for a conspiracy to aid and abet people to remain in New Zealand unlawfully. He and his co-accused were directors of Contract Labour Services (NZ) Ltd, which provided seasonal labour in the horticulture and viticulture industries. They supplemented the workforce with illegal workers, either over-stayers, persons who had jumped ship, or those working in breach of visitor or student permits. The directors attempted to distance themselves from the illegal workers by employing sub-contractors, either legitimate or fictitious, to employ the illegal workers. The appellant was one of the directors and owners of the company, and was a central figure in the overall scheme. The District Court Judge considered the offending to be of such seriousness that a term of imprisonment was required and fixed the starting point of four years’ imprisonment. The appellant’s appeal against his sentence has been dismissed by the Court of Appeal. The Court of Appeal found that the starting point adopted by the Judge was not too high. The offending was carried out for a commercial purpose and the scheme was sophisticated and dishonest. The appellant was a principal offender and was one of the directors and owners of the Company. The Court of Appeal rejected the appellant's contention that he did not benefit personally from the "bush money". The Court of Appeal also found that the allowance made in respect of the appellant’s previous good character and the discount for the guilty plea could not be criticised. The discount allowed for the guilty plea of 15 per cent was generous having regard to the lateness of the plea. The Court of Appeal was satisfied that there is no merit in the submission that the Judge should have imposed a less severe sentence than imprisonment. Given the seriousness of the offending, imprisonment was the appropriate response.

The appeal is dismissed.

Orders