Qureshi-Hayat v The Queen
[2012] NZCA 46
•28 February 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA683/2011 [2012] NZCA 46 |
| BETWEEN YOUSUF QURESHI-HAYAT |
| AND THE QUEEN |
| Hearing: 21 February 2012 |
| Court: Randerson, Potter and Simon France JJ |
| Counsel: R M Mansfield for Appellant |
| Judgment: 28 February 2012 at 2.30 p.m. |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by Randerson J)
Introduction
The appellant pleaded guilty in the District Court to three counts relating to two Pakistani men who were seeking to emigrate to New Zealand. The charges related to events in 2002 and 2003 but the appellant went overseas for a period and was not spoken to by the police until he returned to New Zealand in August 2009.
The three charges upon which the appellant was convicted were:
(a)A representative count under s 377 of the Companies Act 1993 that, between August 2002 and October 2003, he knowingly made false statements in documents required for the purposes of the Companies Act.
(b)One count under s 246 of the Crimes Act 1961 that, on or about 10 January 2003, with intent to defraud by false pretence, he obtained money from the two Pakistani men.
(c)One count under s 266 of the Crimes Act that, between 4 and 23 April 2003 he knowingly used forged documents in support of an application for a motor vehicle dealer’s licence.
The appellant was sentenced on 13 October 2011 by Judge Gibson[1] to two years imprisonment. In addition, he was required to pay reparation of $350,000. We record that, despite the reparation order, the reparation had not been paid when this appeal was called last week before a different panel of this Court. The appeal was adjourned until this week by which time the reparation had been paid along with interest thereon amounting to $2,520.11.[2] By consent, we varied the reparation order on 21 February 2012 to add the interest.
[1] R v Qureshi-Hayat DC Auckland CRI-2009-4-17860, 13 October 2011.
[2] The interest only covered the period from the date of the order to the date of payment.
For reasons which it is unnecessary to relate, the appeal was heard afresh before a panel comprising the present members. The sole ground of appeal is that the Judge erred in failing to impose a sentence of home detention. The appellant accepts that there is no other basis upon which the sentence could properly be challenged.
The facts
The appellant pleaded guilty about one week prior to his trial. He did so on the basis of a summary of facts which he accepted was correct save for an issue about the quantum of the money which he admitted obtaining from the complainants by false pretences. The summary of facts shows that the complainants first contacted the appellant in June 2002. They were then residing in Pakistan and wished to establish a business in Auckland selling second-hand cars and used car parts. The appellant was a New Zealand immigration consultant and the complainants sought his advice with a view to obtaining long term business visas into New Zealand. The appellant required the complainants to deposit USD5,000 into a nominated bank account for his services and also advised them to lodge NZD450,000 into a New Zealand bank account to support an application for the business visas.
With the knowledge and agreement of the complainants, the appellant established a company in New Zealand. The complainants understood they would be the sole directors and shareholders of the company. However, without their knowledge, the company was established with three directors and three equal shareholders (the complainants and the appellant respectively). To achieve this, the appellant submitted forms to the Companies Office giving particulars of the directors of the company. The complainants’ signatures on these forms were forged by the appellant.
Shortly afterwards, the appellant submitted further forms to the Companies Office in which he and the complainants purported to resign as directors with the appellant’s wife being appointed as sole director in their place. Again, the complainants’ signatures on the relevant forms were forged without their knowledge.
There were further deceptions in relation to a bank account which the appellant was able to establish for the company in September 2002 with the assistance of his wife as the company’s sole director. After the account was established, the appellant arranged for the complainants to be reappointed as directors, again without their knowledge.
The appellant took active steps to mislead the complainants about the ownership of the company, its directors and the identity of the authorised signatories for the bank account. He sent documents to the complainants showing they were the sole directors and shareholders of the company and he also sent them a cheque book in the company’s name specifying that they (the complainants) were the holders of the account.
Between 10 and 30 January 2003, the complainants transferred a total of NZD449,381.44 to the company’s bank account in three tranches. In March and April 2003, the appellant established a place from which to operate the car sales business and applied for a motor vehicle dealer’s licence. He produced a number of documents to the Motor Vehicle Dealers Licensing Board in which the signatures of the complainants had been forged.
Between January and September 2003, all of the funds deposited by the complainants in the company’s bank account were utilised by the appellant. Some were used to pay expenses of the car sales business which the appellant managed while other funds were used by the appellant to pay himself a salary or otherwise for his own benefit. Some was used by the appellant in gambling at the casino. The car sales business was unsuccessful and collapsed in September 2003. It is accepted that the business failed due to the appellant’s lack of experience.
Concerned about the lack of information being supplied to them by the appellant, the complainants decided to come to New Zealand. They were granted visitor’s visas on 3 October 2003. However, on 14 October 2003, the appellant wrote to the New Zealand Immigration Service advising against allowing the complainants into New Zealand. In the letter, the appellant made various allegations about the complainants and urged the Immigration Service to be “wary” of the complainants. He advised that, under the circumstances, he might withdraw his support for the application and added that the information was provided “in strictest confidence”. As a result of this letter, the complainants’ visitor’s visas were cancelled.
When matters came to light some six years after the collapse of the business, the appellant reconstructed the accounts of the business as best he could from those records which were still available. On his calculations, $205,937.59 was used to set up and operate the car sales yard. He calculated that the amount to be repaid to the complainants was $243,443.81 (the $449,381.44 they deposited less the car yard expenses as assessed by the appellant). By the time of his sentencing, the appellant had agreed to pay reparation to the complainants of $350,000 after negotiation with the Crown on their behalf. He proposed to do this by raising a mortgage on a property he owns in Auckland.
The Judge’s sentencing approach
The Judge noted that the appellant had used the monies (or at least a substantial part of them) for his own ends. He had not kept the complainants informed about what he was doing with their funds. The Judge regarded the appellant’s letter to the Immigration Service of 14 October 2003 as a further aggravating feature. He considered the offending to be serious: it involved a significant abuse of trust; a substantial degree of premeditation; the appellant had the use of the money for a long period of time; and he had acted in the knowledge that he was not entitled to do so. The Judge added that there was substantial loss and damage suffered by the complainants, noting that one of them had been placed in serious financial difficulties. He had been obliged to sell his home and other assets and had suffered stress-related health problems.
The mitigating factors identified by the Judge included the appellant’s long and distinguished career as an academic; the offer of reparation (which the Judge considered did not, in any sense, represent the full extent of the complainants’ losses); the guilty plea; and his previous good character.
From a starting point of four years imprisonment, the Judge allowed total discounts of 50 per cent to arrive at the final sentence of two years imprisonment. The discounts comprised 15 per cent for the guilty plea, nine months for the appellant’s previous good character and 12 months for the offer to pay reparation.
The Judge accepted that, on the authority of this Court’s decision in R v Hill[3] home detention was an available sentence. However, he declined to impose home detention giving as his reasons:
[16] The purposes of sentencing that seem to me to be relevant here are the need to hold the prisoner accountable for the harm he did to the victims, to provide for their interests, to make reparation, to denounce his conduct and to also impose a sentence that amounts to a deterrent sentence, more properly in this situation for other persons in the community who hold monies on trust and who have unfettered access to that money. Home detention can be imposed if those features of the purposes of sentencing can be met by a sentence of home detention, and it is well recognised on the authority of various Court of Appeal decisions that home detention can be regarded as a deterrent sentence, but nevertheless, the most deterrent sentence, in terms of its place in the hierarchy of sentencing, is imprisonment. The question is, is imprisonment appropriate in this case, given the prisoner’s age, my obligation to impose the least restrictive outcome on him, and what I accept is the unlikelihood of him offending again in this way in the future.
[17] Overall, commercial morality is an important principle, and the fact that I have found it was an aggravating feature that the prisoner took active steps to prevent the complainants, who were living a great distance away, from finding out what had happened to a very substantial sum of money placed in his trust, and which caused the complainants a great deal of personal hardship in raising it, persuades me that it is not appropriate to allow the defendant to be sentenced to home detention, and accordingly he is sentenced to two years imprisonment.
The case for the appellant
[3] R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
Mr Mansfield submitted that the Judge had erred by placing excessive weight on the seriousness of the offending and the identified aggravating features. While acknowledging that the offending was serious, he submitted that the appellant’s culpability was reduced because the complainants were aware that their funds, or a significant part of them, were to be applied to establishing the car sales business with the attendant risk of business failure. He submitted that some of the funds had been legitimately applied as the complainants intended.
We do not accept that submission. From the beginning, the appellant set out on a calculated course of deception with regard to the ownership and control of the company and its bank account. On the basis of the appellant’s false assurances that they would control the company and the expenditure of their funds, the complainants transferred very substantial sums of money to New Zealand. Given that they were resident in Pakistan, the complainants were obliged to place their trust in the appellant.
Contrary to his representations, the appellant himself had complete control of their funds, all of which were lost as a result of his activities over a period of nine months. It may be that the appellant hoped or believed the business would be successful, but we do not accept he acted honestly. If he had no dishonest intent, there would have been no need for him to mislead the complainants as he did from the outset. It is also reasonable to infer that the complainants would not have transferred their funds to New Zealand if they had been aware of the true position.
We agree with the Judge that the appellant’s conduct in writing to the Immigration Service in October 2003 was a further serious aggravating factor. The plain inference from the letter is that the appellant was attempting to prevent the complainants coming to New Zealand and discovering what had happened. He was successful in that endeavour.
Mr Mansfield submitted there were a number of factors favouring the imposition of home detention: the appellant has now served some four months in prison since his sentence; he has no previous convictions; he is a person of previous good character as indicated by a number of references provided to the Court; there is no need for personal deterrence since it was accepted that the appellant had only a low risk of reoffending; he has paid substantial reparation; he is genuinely remorseful for the offending; he was aged 51 years at the commencement of the offending; and he has a stable address in New Zealand.
Conclusions
The decision as to whether to impose a sentence of home detention was finely balanced. The Judge carefully weighed the competing considerations. We accept Ms Bicknell’s submission for the Crown that the appellant has not demonstrated any error in the discretionary exercise the Judge undertook. He was entitled to give weight to the substantial breach of trust; the significant degree of planning; the appellant’s deliberate deceptions to mislead the complainants into believing they would have control of their funds; the scale of the fraudulently obtained funds; and the serious effects on the complainants.
There were strong personal mitigating factors in this case, but we consider that the seriousness of the offending outweighed the factors favouring a non-custodial sentence. We note that the payment of reparation did not come until some nine years after the funds were falsely obtained and that the amount paid does not fully compensate the complainants for their losses.
The Judge referred to the importance of commercial morality and also placed weight on the abuse of trust involved. Those seeking to emigrate to this country are obliged to place their trust in immigration consultants such as the appellant. They are often vulnerable in the sense that they lack adequate information as to immigration processes and the way in which business operates in this country. There is an important public interest in ensuring that consultants in this field act with honesty and integrity. Those who mislead prospective immigrants and obtain their money by false pretences for their personal benefit can expect a firm response from the courts.
We are satisfied that the circumstances of this case required a term of imprisonment which would denounce the appellant’s conduct and act as a general deterrent to those who may be like-minded.
Result
For these reasons, the appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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