Kamboj v Police
[2019] NZHC 2652
•17 October 2019
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] As a result of the approach to him, on 21 March 2018, Mr Kamboj opened a new account with Westpac Bank, receiving an eftpos card and a corresponding PIN number. On 22 March 2018, the victim had his Westpac account hacked by unknown persons and $25,388.40 was transferred into five different mule accounts. Mr Kamboj’s bank account was one of those mule accounts. $10,000 of the
$25,388.40 was transferred to Mr Kamboj’s account.
[6] On the evening of 22 March 2018, $6,030 was withdrawn from Mr Kamboj’s account by a further individual who used his eftpos card at various ATMs at the Sky City Casino. There is no suggestion this was Mr Kamboj.
[7]For his role in this scheme, Mr Kamboj received $500.
[8] As noted, Mr Kamboj pleaded guilty to one charge of money laundering and sought a discharge without conviction pursuant to 106 of the Sentencing Act 2002 (the Act).
[9] On 1 January 2019, Mr Kamboj was served with a deportation order from Immigration New Zealand and is now residing in New Zealand unlawfully.
District Court decision
[10] In his decision dated 27 May 2019, Judge E M Thomas declined to grant Mr Kamboj a discharge without conviction.3 Mr Kamboj was convicted on the single charge of money laundering, sentenced to 100 hours community work and ordered to pay $5,500 in reparations.
[11] In assessing whether a discharge without conviction ought to be granted, the Judge had regard to the gravity of the offending, the consequences of a conviction and whether or not the consequences would be out of all proportion to the gravity of the
3 Police v Kamboj, above n 2.
offending.4 The Judge found that although Mr Kamboj was not aware of all the details of the scheme, he still deliberately engaged in the offending and carried some responsibility for the harm caused. The Judge assessed the level of harm to be high, noting that it was twofold; the offending had caused the victim to lose confidence in the security and safety of his money, and it had undermined international confidence in the New Zealand market. In light of this, the offending was said to be serious. The gravity of the offending was, however, reduced on account of Mr Kamboj’s age, his decision to plead guilty and his lack of prior offending. Ultimately, the Judge considered the offending to be toward the higher end of moderate.5
[12] Turning to the consequences of a conviction, Mr Kamboj identified those to be a loss of a significant investment made by his parents into his education in New Zealand, the loss of any further opportunity to study in New Zealand, and the reduced likelihood that he would be able to obtain a student visa if convicted.6 The Judge rejected the first of these consequences, stating that the investment made by Mr Kamboj’s parents had already materialised in the form of a diploma qualification, and a conviction would not result in this investment being lost. The second consequence was also considered inadequate, as Mr Kamboj had been offered the opportunity of further study and to date no fees had been paid and would not be lost if the opportunity did not materialise.7
[13] In relation to the final of the three consequences, Judge Thomas noted that it was not certain that if Mr Kamboj was not convicted, Immigration New Zealand would nevertheless re-issue his student visa. However, the Judge did acknowledge that a discharge without conviction would make the case for re-issue of his visa stronger. Despite this, the Judge went on to say that, although a visa may not be re-issued, that is what Parliament intended to occur; in effect, Parliament intended that if a person offends they must show Immigration New Zealand that they are a person of good character who should still be given a visa.8
4 No issue is taken on appeal with the Judge’s approach in this regard.
5 Police v Kamboj, above n 2, at [4] – [8].
6 At [9].
7 At [10].
8 At [11] – [13].
[14] The consequence of having to explain his good character to Immigration New Zealand was not considered by Judge Thomas to be out of all proportion to the gravity of the offending.9 As a result, the application for a discharge without conviction was declined. As noted, Mr Kamboj was also ordered to pay reparations of $5,500. This order was less than the amount withdrawn from his account on the evening of 22 March 2018, as he had already started paying reparations prior to sentencing.10
Submissions
Appellant
[15] Mr Heaslip, counsel for Mr Kamboj on the appeal, submits that Judge Thomas made a number or errors in declining to grant a discharge without conviction.
[16] First, Mr Heaslip submits that the Judge erred in stating that “Parliament intended that if you offend, you get a conviction, you have to deal with it…”. Mr Heaslip says that had Parliament intended all persons be convicted, then s 106 of the Act, the section allowing for a discharge without conviction, would not have been enacted.
[17] Mr Heaslip challenges the Judge’s finding that the gravity of Mr Kamboj’s offending was at the higher end of moderate. He says that given Mr Kamboj’s minor role, the offending ought to be categorised at a low level of gravity.
[18] Mr Heaslip also contends that Judge Thomas erred by failing to refer to Vohra v Police, where an appeal against conviction was allowed in similar circumstances, and failed to adequately consider similar cases, including Police v Singh and R v Tang.11 Mr Heaslip says that R v Tang is an example of where a discharge without conviction was granted in the face of more serious offending, and that Singh represents a case where a discharge was granted in circumstances indistinguishable from Mr Kamboj’s, also involving a money mule scheme. Mr Heaslip says it flows from
9 Police v Kamboj, above n 2, at [14] – [16].
10 At [17] – [18].
11 Vohra v Police [2018] NZHC 3192; Police v Singh [2019] NZDC 5231; R v Tang [2019] NZHC 2056.
these cases that had Judge Thomas had adequate regard to each of them, Mr Kamboj ought also to have been granted a discharge without conviction.
[19] Lastly, Mr Heaslip says that Judge Thomas failed to make reference to the affidavits of Mr Kamboj and of David Fisher, an immigration lawyer, and that these documents provide an outline of the likely consequences of a conviction and supported a s 106 discharge. Mr Heaslip contends that had Judge Thomas had regard to these documents, a discharge without conviction would have been granted.
Respondent
[20] Ms Magrath, for the respondent, submits that Judge Thomas undertook the appropriate assessment when determining whether to grant a s 106 discharge, and was correct in declining to do so. With respect to the gravity of the offending, Ms Magrath says that having regard to the substantial sum of money withdrawn from the victim’s account, the deliberateness of the offending and the mitigating factors personal to Mr Kamboj, Judge Thomas correctly assessed the gravity of the offending to be at the high end of moderate.
[21] The respondent also submits that Judge appropriately considered the consequences of a conviction. Even though the Judge did not specifically mention the affidavit evidence outlining the suggested consequences, his sentencing notes demonstrate that he turned his mind to all the evidence before him. Moreover, Ms Magrath says that it was open to the Judge to find that the immigration consequences were insufficient to grant a discharge without conviction, as this was not a case where the immigration consequences were unique or unduly severe. In Tang, for example, the consequences of deportation were unique and severe (the defendant being separated from her four year old child), and it cannot be said that Mr Kamboj will be subject to the same severe type of consequences.
[22] Ms Magrath further says that Judge Thomas did not make an error in his assessment of like cases, as there are a number of dissimilarities between Mr Kamboj and Singh. In Singh, the sum of money deposited into Mr Singh’s bank account was much smaller, Mr Singh had no inkling of what the main offender intended to do with his bank account, and thus the gravity of Mr Singh’s offending was accordingly much
lower. Further, the consequences were more severe for Mr Singh, as a conviction would have inhibited him from completing his education (which he was then part-way through). As such, there was no failure to apply like cases.
[23] Ms Magrath also says Judge Thomas made no error in stating that Parliament intended that a conviction be the consequence for offending. Rather, it is submitted that Mr Heaslip has taken the Judge’s comments out of context, as Judge Thomas went on to say that a conviction will be the consequence of offending, unless the consequences of a conviction are out of all proportion to the gravity of the offending. Counsel says that if the statements are considered together, the Judge has correctly represented the law.12
[24] Overall, having regard to all the evidence, the law and the relevant cases, Ms Magrath says Judge Thomas was correct in finding that the consequences of a conviction were not out of all proportion to the gravity of the offending.
[25] If the Court proceeds to deal with the sentence appeal, Ms Magrath submits that the Judge imposed the least restrictive sentence possible and that neither community work nor the reparation order are manifestly excessive. As such, the sentence appeal should not succeed.
Approach
[26] The legal principles relevant to an application for a discharge without conviction are well settled. The Court must consider whether the threshold under s 107 of the Sentencing Act has been met. That requires the Court to undertake a three- step analysis assessing:13
(a)the gravity of the offence taking into account all aggravating and mitigating factors of the offending and offender;
(b)the direct and indirect consequences of a conviction (there must be a
“real and appreciable” risk that any given consequence will happen);
12 I note that this is a correct reading of the Judge’s sentencing notes. I accordingly do not address this particular matter any further in this judgment.
13 See R v Taulapapa [2018] NZCA 414 at [22].
and
(c)whether those consequences are out of all proportion to the gravity of the offence.
[27] If the offender meets the s 107 threshold, then the Court may go on to consider whether to exercise the residual discretion under s 106.
[28] An appeal against a refusal to grant a discharge is an appeal against conviction and sentence.14 The proportionality test under s 107 is a question of fact requiring judicial assessment.15 If the appellant can show that the first instance decision was wrong, the evaluation of the s 107 factors is considered afresh.16
Analysis
Gravity of offending
[29] When assessing the gravity of offending, the Court is to consider the aggravating and mitigating factors of both the offending and the offender.17
[30] Money laundering is a serious charge and carries a hefty maximum penalty. Judge Thomas, when assessing the gravity of the offending, placed significant emphasis on the harm that was caused by the offending, noting that it had harmed not only the victim, but it had also harmed international confidence in the New Zealand market.
[31] There is no doubt that the extent of harm or loss resulting from the offence is an aggravating factor to be taken into account. But these factors are to be considered in light of Mr Kamboj’s very limited role in the overall scheme. Mr Kamboj opened a new bank account knowing what he was doing was likely to be wrong, but there is no suggestion he was aware of the details of the scheme. Although Mr Kamboj had a
14 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [8]–[9] and [16].
15 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
16 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].
17 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27]–[28].
“gut instinct” that what he was doing was wrong, he was perhaps naively optimistic in the face of an offer for effectively “easy money”.
[32] There is also no suggestion the particular scheme in which Mr Kamboj became involved caused losses of $1 million. Nor can it be said that Mr Kamboj’s own offending harmed confidence in the New Zealand market, rather than the presence and nature of these schemes overall. Other relevant matters, as the Judge identified, are Mr Kamboj’s youth, lack of prior convictions and considerable reparations to date.
[33] In distinguishing the outcome in Singh, it is likely the Judge took into account the very small sums of money placed into Mr Singh’s account; only a few hundred dollars in that case, as opposed to $10,000 in this case. But given the nature of the schemes overall, and Mr Kamboj and Mr Singh’s role in them, the amount of money transferred into a mule’s account is out of their control. Whether it is $10,000 or $100 is determined by another person. For this reason, I do not consider the amount of money transferred through Mr Kamboj’s account to be reflective of his personal blameworthiness or culpability, or a materially distinguishing factor from Singh.
[34] At the hearing before me, Ms Magrath, while not conceding the point, acknowledged that the Judge may have placed too much weight on the amount of money involved and the harm these schemes generally cause, rather than focussing on Mr Kamboj’s personal culpability. I consider Ms Magrath’s acknowledgement to be a proper one. Taking into account those matters discussed at [31] to [33] above, I consider the Judge erred in viewing the gravity of the offending as the higher end of moderate. I consider the gravity of Mr Kamboj’s offending was low.
Consequences of a conviction
[35] Mr Kamboj’s affidavit in support of the s 106 application indicates that a conviction would result in various negative consequences, including the suggested loss of a significant investment made by his parents into his education. With regard to this consequence, I agree with Judge Thomas. Mr Kamboj’s parents have invested substantially in his education, but this investment has already materialised and resulted in Mr Kamboj’s Diploma in Information Technology. A conviction cannot detract from, or eliminate, that.
[36] Mr Kamboj also says that a conviction will result in the loss of any further opportunity to study in New Zealand, and will reduce the likelihood of his student visa being re-issued. Mr Kamboj has been accepted to study for a Bachelor of Software Engineering at the Media Design School, but is unable to start the course as Immigration New Zealand has declined to re-issue his student visa due to the money laundering charge (and has subsequently issued Mr Kamboj with a deportation order). David Fisher, Mr Kamboj’s immigration lawyer, has sworn an affidavit affirming that if a discharge without conviction is granted, this will assist Mr Kamboj’s visa application, but does point out that a discharge without conviction does not guarantee that a visa will be granted.
[37] It is clear that if Mr Kamboj is convicted he will be deported back to India. The deportation order has been issued and Mr Kamboj currently resides in New Zealand unlawfully. Mr Kamboj has sworn that a conviction and deportation will bring shame to his family and will likely inhibit his ability to gain employment. I am satisfied that this is likely to be true. I am also satisfied that a conviction will result in an inability to carry out further study in New Zealand. And although Mr Kamboj has completed some study, further study was intended to springboard him into a successful career in information technology. While a discharge will not guarantee his ability to complete this course, as the Judge acknowledged, it would inevitably assist.
[38] Ms Magrath also accepted at the hearing before me that a conviction for money laundering does carry with it connotations that many other offences do not. It no doubt conveys to a lay person, serious offending involving a lack of trust and honesty. It would also no doubt give rise to concern on the part of future potential employers as to Mr Kamboj’s honesty and trustworthiness. It would no doubt require some significant explanation by him to convey his very limited role in what a lay person might otherwise consider to be “money laundering”. I therefore accept that a conviction on that charge will likely taint Mr Kamboj’s good standing going forward, and will hinder his employment prospects.
Proportionality
[39] As noted, I have found the gravity of Mr Kamboj’s offending to be low, and I am satisfied the consequences of a conviction are reasonably serious. The question now, is whether those consequences are out of all proportion to Mr Kamboj’s offending?
[40] On balance, I am satisfied that the consequences of a conviction in this case are out of all proportion to the gravity of Mr Kamboj’s offending. In a sense, the offending was a serious mistake made by a young man, in return for a very small amount of money, in circumstances where he knew what he was doing was likely to involve something wrong. Through Mr Kamboj’s ongoing reparations, the immediate financial harm of his offending will be remedied. Conversely, the consequences of a conviction for what on the face of it implies very serious offending, are in my view out of all proportion to the gravity of the offending. While a discharge without conviction will not necessarily ensure Mr Kamboj will be able to complete his proposed studies in this country, a conviction will almost certainly lead to his deportation. Further, but importantly in my view, the very stigma which attaches to a charge such as money laundering, and the long term negative effects it is likely to have in connection with future employment opportunities, also suggests a conviction is out of all proportion to the offending.
[41] I am accordingly satisfied that the s 107 threshold is met. Having reached this conclusion, there is no basis to exercise the residual discretion against granting a discharge.
[42] I am therefore satisfied the Judge erred in declining to grant a discharge without conviction.
Result
[43]The appeal is allowed.
[44] The application for a discharge without conviction is granted. Mr Kamboj’s conviction and sentence are quashed. Pursuant to s 106(3)(b) of the Act, I make an
order that Mr Kamboj is to pay the sum of $5,500 by way of compensation. In other words, the reparations ordered by Judge Thomas are effectively maintained, given payment of such reparation/compensation is a not insignificant reason why the gravity of Mr Kamboj’s offending is low.18
Fitzgerald J
18 Ongoing payments made by Mr Kamboj since sentencing may obviously be off-set against the total amount payable.
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