Kamboj v Police - [2019] NZHC 2652

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-213

[2019] NZHC 2652

IN THE MATTER of an appeal against a failure to grant discharge without conviction

BETWEEN

NAVJOT KAMBOJ

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 October 2019

Counsel:

PTR Heaslip for appellant

JJ-Y Magrath for respondent

Judgment:

17 October 2019

JUDGMENT OF FITZGERALD J

[As to appeal against failure to grant discharge without conviction]

This judgment was delivered by me on 17 October 2019 at 4pm.

Registrar/Deputy Registrar

Date……………

Solicitors: Meredith Connell, Auckland (N Webby) To: P Heaslip, Auckland

Kamboj v New Zealand Police [2019] NZHC 2652 [17 October 2019]

Introduction

[1] Before the District Court, Mr Navjot Kamboj pleaded guilty to and sought a discharge without conviction on one charge of money laundering.1 Judge EM Thomas declined to grant a discharge, convicted Mr Kamboj on the single charge, sentenced him to 100 hours community work and ordered that he pay reparations to the value of
$5,5000.2 Mr Kamboj now appeals from that decision.

Background

[2] From January 2018, the New Zealand Police began receiving complaints regarding a sophisticated money laundering scam involving “money mules”. A money mule is an individual who is recruited to facilitate the transfer of the proceeds of crime between bank accounts. This form of scheme involves an unknown person hacking a victim’s bank account and transferring money from the victim’s account into a mule’s (or a number of mules’) bank account(s).

[3] The Police currently believe that banks have suffered a total loss of $1 million as a result of such schemes. It is relevant to note, however, that the summary of facts to which Mr Kamboj pleaded guilty does not suggest that the particular scheme in which Mr Kamboj became involved caused this total loss of $1 million. Rather, that loss is presented in the summary of facts as being the total loss to banks since 2018 as reported in the numerous complaints regarding money mules.

[4] At the time of his offending, Mr Kamboj was a student at the Newton College of Business and Technology. In an affidavit sworn in support of his application for a discharge without conviction, Mr Kamboj explained that he was approached by a fellow foreign student, who told him he could make some money if he opened a bank account. Mr Kamboj said that the fellow student said he did not have to put any money into the bank account. Mr Kamboj said that as he did not have a job and was studying, he needed money and thought this was a means of making a little bit of money. He states in his affidavit that “I had a gut instinct that this was wrong somehow, but I

1 Crimes Act 1961, ss 243 – 245. Maximum penalty 7 years’ imprisonment.
2 Police v Kamboj [2019] NZDC 14678.

needed to get some money. I was told there would be no trouble with Immigration and Police”.

[5]…

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 Kamboj v Police

Details

AGLC: Kamboj v Police [2019] NZHC 2652
Case: [2019] NZHC 2652
Decision Date: 17 October 2019

CaseChat Overview and Summary

Navjot Kamboj appealed against a decision of the District Court to decline a discharge without conviction on a charge of money laundering. The District Court had convicted Mr Kamboj and sentenced him to 100 hours community work and ordered him to pay reparations of $5,500. Mr Kamboj sought a discharge without conviction pursuant to s 106 of the Sentencing Act 2002. The appeal was heard by Fitzgerald J, who found that the appeal succeeded. The appeal was against the refusal to grant a discharge without conviction and sentence. The legal principles to be applied were those set out in s 107 of the Act, which require consideration of the gravity of the offence, the consequences of a conviction and whether those consequences are out of all proportion to the gravity of the offence. The appeal court found that the District Court erred in assessing the gravity of the offending as the higher end of moderate. The offending was found to be of low gravity. The consequences of a conviction were found to be reasonably serious. Deportation, loss of opportunity to further study in New Zealand, the stigma of a conviction and the impact on future employment opportunities were considered significant. On balance, the consequences of a conviction were found to be out of all proportion to the gravity of the offending. The appeal was accordingly allowed. The conviction and sentence were quashed and the application for a discharge without conviction was granted. The order for reparations was maintained.

Orders