R v Bubna
[2023] NZHC 158
•9 February 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-018-632
[2023] NZHC 158
THE KING v
NEHA BUBNA
Hearing: 9 February 2023 Appearances:
A M Toohey and S J O’Brien for Crown
V J Feyen for Defendant
Judgment:
9 February 2023
SENTENCING NOTES OF OSBORNE J
Introduction
[1] Ms Bubna, I am going to ask you to stand please. Neha Bubna, you appear for sentence on a charge of obtaining by deception. You pleaded guilty to that charge in October 2022, shortly before the commencement of your trial with the co-defendants. The charge arose because, with others, you were involved in arrangements to deceive the Westland District Council in order to enable a company you had established to obtain a contract to upgrade Council water treatment facilities.
[2] As counsel have mentioned, I provided you with a sentence indication on 3 October 2022, following which you entered your guilty plea. In response to the submissions received, I found that a sentence of 24 months’ imprisonment was indicated and that you would be eligible for a sentence of home detention should you
THE KING v BUBNA [2023] NZHC 158 [9 February 2023]
have a suitable address for that purpose. I will be attaching to the typed version of these remarks my Sentencing Indication. The Department of Corrections reports that you do have a suitable address for an electronically monitored sentence. As a result, this sentencing hearing would normally focus on the length of your detention.
[3] However, you have in the meantime applied for an order that you be discharged without conviction. As you have heard, I therefore have now received submissions both in relation to the possibility of a discharge without conviction and as to a period of detention.
[4] I am shortly going to ask you to sit again while I explain the decision I am reaching. Should you be discharged without conviction or should you be convicted and subject to a period of home detention? My explanation will take some time and I will indicate to you towards the end when you need to stand again.
[5]So, please be seated for now.
The charge
[6] The charge was brought under ss 240(1)(a) and 240(2)(b) Crimes Act 1961. Because the value of the contract was $459,000 plus GST, the charge carries a maximum term of imprisonment of seven years.1
Your offending
[7] Through counsel, at your sentence indication hearing, you accepted facts as set out in the summary of facts. I note that this morning I received a supplementary affidavit from you in which you dispute one paragraph of the summary of facts. I am going to put to one side the proposition that you were involved with what has been called the “gangayamana email account”. That particular matter does not significantly alter the overall picture.
[8] I will only briefly refer to the lengthy summary of facts which I have fully taken into account in the observations which follow. These are some key points:
1 Crimes Act 1961, s 241(a).
(a)it was the Westland District Council (Council) that was awarding the Upgrade Contract, a contract to upgrade water treatment facilities. Your co-defendant, Vivek Goel, was an employee of the Council employed as Group Manager – District Assets. He oversaw the Council’s procurement process for assets. Among his responsibilities was to conduct a fair and transparent procurement process;
(b)you were 33 years old at the time of the offending. You operated a cake-baking business in Auckland. You had no experience in engineering or water treatment plants, the subject-matter of the Upgrade Contract;
(c)you became connected to the offending through the involvement of your late father, Pawan Bansil, with Vivek Goel. Your father operated a water treatment business in India called Techno Economic Services (TES India). You were in regular contact with your father after you migrated to New Zealand some seven years earlier. You also had close personal relationships with the Goel family including Vivek Goel and his father, Suresh Goel. You were a regular guest of the Goel family;
(d)one of your co-defendants, Amar Singh, owns and operates an asset management company called ANA Group Ltd (ANA). He has a background in engineering. He was associated with Vivek Goel through their professions. In 2015, Vivek Goel engaged Amar Singh to carry out asset management work for the Council through short-term contracts. Amar Singh was then introduced to your father through his dealings with Mr Goel;
(e)your co-defendant, Ashish Sevta, is the son of Amar Singh. He works for ANA and is linked to Vivek Goel through his father’s work with the Council;
(f)in early-2016, your father and Vivek Goel worked together to successfully obtain a contract with the Council for TES India, a project which did not in fact proceed;
(g)when the Upgrade Contract came up, Vivek Goel took it upon himself to secure that contract for TES New Zealand;
(h)he, (with two employees from his team) was to be on the Panel Evaluation Team for the procurement process. The contract was offered as a Request For Tender (RFT) with the RFT documents released on 10 November 2016;
(i)Vivek Goel assumed the role of putting together for TES the tender submission documents. Because of his conflicting roles, he was unable to carry out that aim by himself and required the assistance of people who would not arouse suspicion in relation to his involvement. It was you, Amar Singh and Ashish Sevta who provided that assistance. At Vivek Goel’s direction, you made the necessary enquiries in order to put the tender submission documents together, working as a team with different roles in the process. You knew of Vivek Goel’s role at the Council. You were aware that there was a requirement to maintain secrecy in relation to his involvement in order to ultimately obtain the Upgrade Contract;
(j)by maintaining secrecy, you assisted Mr Goel to act contrary to his lawful duties as an official. The agreement to maintain silence was evidenced by your covert actions in relation to the procurement process. On 13 November 2016, your father texted you as to discussions with Mr Goel and steps being taken in relation to the Upgrade Contract;
(k)the following day, 14 November, a New Zealand company was registered with the TES name, you becoming its sole director and sole shareholder. A flow of information followed between Vivek Goel and your father in relation to the Upgrade Contract, the two of them
discussing how they were going to cost the tender. A generic email address was set up to stop others detecting the deception. Vivek Goel had access to the email account. Ashish Sevta and Amar Singh assisted Vivek Goel by providing a “legitimate face” to carry out his instructions and arrange sub-contractors. Ashish Sevta became the named project- manager. Vivek Goel would use the email account to send documents and instructions to Ashish Sevta and Amar Singh, signing off his emails as “Pawan Bansil” to avoid detection. Other communications were by phone and text message;
(l)Vivek Goel never disclosed to the Council or the Panel Evaluation Team his involvement with the TES tender documents or that he had drafted the documents;
(m)on 23 November 2016, you opened a bank account for TES New Zealand, transferring into it $10,000 from your personal account. Shortly afterwards you signed insurance documentation for TES New Zealand and paid operating costs for TES New Zealand;
(n)you worked together with your co-defendants to ensure Vivek Goel’s assistance was kept secret from the Council and the Panel Evaluation Team. You and the others used numerous covert mechanisms to avoid raising suspicion of Vivek Goel’s involvement with TES. You encouraged and/or assisted Vivek Goel by agreeing to keep his corrupt assistance a secret from the Council and the Panel Evaluation Team. By that you enabled Vivek Goel to maintain his corrupt activities;
(o)the TES tender documents were submitted to the Council on 7 December 2016 purportedly signed by your father but bearing your electronic signature;
(p)four other companies also submitted tenders. None of the other four companies had any assistance from a member of the Panel Evaluation
Team, nor would they have expected such assistance was being given to TES as it was against the rules of probity;
(q)TES made the lowest tender ($459,000 plus GST) and was offered the contract. You were involved in steps in late-January in setting up accounts and communications which again enabled you and Vivek Goel to conceal an existing close relationship. The summary of facts which I was advised you accepted says that at a meeting with the Council on 1 February 2017 you introduced yourself to Mr Goel in front of his Council colleagues. In her submissions, at the sentence indication hearing, your counsel then, Ms Pointer, said that you in fact denied that. But she accepted that your conduct could have indicated that you and Mr Goel did not know each other. Whatever your precise conduct was, it is clear that it was part of the continued concealment of your pre- existing relationship with Mr Goel;
(r)the contract was signed by you 1 February 2017 that day (for TES New Zealand) by you and by Mr Goel (for the Council);
(s)soon afterwards, congratulations were sent backwards and forwards, from your father to you and Mr Goel and from Mr Goel to you and your co-defendants. Mr Goel in his communications set out mechanisms for you and your co-defendants to communicate with each other;
(t)that Upgrade Contract was not ultimately fulfilled as the Council withdrew following the commencement of an investigation by the Serious Fraud Office; and
(u)and, finally, later in 2017 the Council instead offered the contract to another tenderer who accepted and delivered the contract.
[9] As I have already noted, what I have just recited are the facts which were accepted when you pleaded guilty to the charge.
[10] Since that time, the trial of your co-defendants has taken place before a jury. Both Vivek Goel and Amar Singh were found guilty of the same offence as you, together with other offences. Ashish Sevta was found not guilty. Accordingly, the references to Mr Sevta that I have made arising from your summary of facts apply only to your case — those references do not represent findings of this Court against Mr Sevta, as he has been acquitted.
Your application for a discharge without conviction
[11] You have applied for an order that you be discharged without conviction pursuant to s 106 Sentencing Act 2002. As you will know, a court must not discharge an offender without conviction unless it is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.2
[12]I will consider your application in four steps:3
(a)I will identify the gravity of your offence, including the aggravating and mitigating factors of the offending and of yourself;
(b)I will identify the direct and indirect consequences of conviction for you;
(c)I will consider whether those consequences are out of all proportion to the gravity of the offending; and
(d)I will finally determine whether to exercise my discretion under s 106 of the Sentencing Act.
The gravity and seriousness of your offending
[13] I first note that the maximum punishment of seven years’ imprisonment for obtaining by deception applies wherever the value of what is obtained exceeds $1,000.
2 Sentencing Act 2002, s 107.
3 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222. See also Geoffrey Hall Hall’s Sentencing
(online looseleaf ed, LexisNexis) at SA106.1(a).
The contract sum involved in your offending — $459,000 (exclusive of GST) — vastly exceeds that trigger point. I infer that the profit you expected to obtain would also have very substantially have exceeded $1,000.
[14] At the heart of your offending was the willingness of you and your father to be involved with a Council official, Mr Goel, in the deception of the Council whose assets he managed.
[15] On your behalf Ms Feyen has responsibly acknowledged the three aggravating features of your offending, which I discussed in my Sentencing Indication. I will therefore only identify those matters briefly:
(a)first, the loss and harm caused to the Council, including the substantial internal and external cost as the Council completed a tender process which ultimately had to be aborted and then retendered together with, perhaps more significantly, the reputational cost to the Council, evidenced by the unwillingness of at least one tenderer to be involved again in tendering with this Council. With the Council as part of New Zealand’s local government arrangements, there is also harm to the national reputation;
(b)secondly, the abuse of a position of trust, through your failure to disclose the conflict of interest with Mr Goel, reflecting how integral you were to the success of the scheme;
(c)thirdly, the premeditation involved over some two to three months, whereby you adopted the earlier scheming of others and by establishing of your New Zealand company you provided the appearance of a legitimate business front with no apparent connection between yourself and Mr Goel;
(d)fourthly, an element of personal gain — as a matter of New Zealand company law, you controlled the benefit of the contract obtained. Even were your father to have derived some of the benefit, or indeed, in
practical terms controlled all of the benefit, I am left in no doubt that through the nature of his regard for you he would have ensured that you in your limited financial situation in New Zealand, would have shared in the benefits.
Mitigating factors
[16] As I have noted, I am to assess the seriousness of your offending also in the light of the factors which render less serious the nature of your offending or are personal to you.
[17] Ms Feyen has provided me with a cultural report written by Anjeet Singh. She is an experienced lawyer with a substantial connection to and involvement with Indian communities in Fiji and New Zealand and familiarity with the Punjab (the birthplace of your parents) and New Delhi (your birthplace). I have carefully read Ms Singh’s report, including the references attached to that report. It is a helpful report.
[18] Additionally, I have read your affidavit filed in support of your application together with the remaining references and documents provided with your affidavit.
[19]I also have the helpful pre-sentence report provided by the Probation Officer.
[20] I now state my conclusions with regard to the matters raised in those various documents by reference to the factors identified by Ms Feyen in her submissions as to mitigation.
The influence of your father
[21] It is clear, as Ms Feyen submitted, that you became involved in this offending at the behest of your father, with your actions directed for the most part by him in accordance with Mr Goel’s planning. This all occurred at a time when you were finalising your divorce. That situation for cultural reasons placed you in a situation of emotional vulnerability. I note the expected cultural regard a daughter in your position should have for her father’s wishes. Those cultural matters recognised, it is nevertheless clear from a February 2016 text you sent to your father when you felt it
necessary, you had the confidence to stand up for yourself in communications with your father. I take the cultural matters into account as mitigating factors, but they only go so far. You have in some of your writing referred to your “negligent behaviour” and your references include suggestions such as that you had become “unwittingly involved in something that you never wanted to be part of”. These feelings on your part fail to acknowledge that you have pleaded guilty to participation in a concerted criminal deception.
[22] I recognise, as Ms Feyen has submitted, it is correct to identify your father as a key person who should have been held to account. But it does not follow that you should not be held to account.
[23] Closely related to the cultural vulnerability to which Ms Feyen has referred is your state of health at the time of the offending. Ms Feyen submitted that added to your sense of vulnerability. I accept that. It is clear that for over a year from January 2015 you were treated by a clinical psychologist for depression, emanating mainly from what was initially your troubled marriage. I accept on the information before me that you continued thereafter to suffer significant levels of anxiety.
[24] These circumstances contributed to the vulnerability you experienced at the time of your offending.
Previous good character
[25] Given that you were 33 years old at the time of your offending, it is to your credit that you appear for the first time before a court. It also indicates, as Ms Feyen submitted, that the offending was out of character, as clearly indicated by the references filed. These are matters of personal mitigation.
Remorse
[26] Ms Feyen has submitted that you have fully acknowledged the seriousness of the harm caused by your actions and have demonstrated insight into your offending, showing genuine remorse and regret on multiple occasions including, for instance, in your communications with the Council and with the media.
[27] You will recall that in my Sentencing Indication to you I indicated, on the basis of the information then before me, that I saw little prospect of a further discount (should you be convicted and sentenced). That comment was closely related to the very late timing of your guilty plea and the inference that your plea was therefore unlikely to be driven by any full sense of acceptance of the level of criminality in your conduct and genuine remorse.
[28] I still do not see evidence of unreserved remorse that would warrant significant recognition in the context of mitigation additional to recognition implicit in a discount for a guilty plea. Your references to your conduct having been “negligent” are not consistent with realistic insight into your offending. Equally, you need to accept that Ms Feyen’s description of your offending as “misguided” is far from a complete description of your conduct. Put simply, it was intentional and criminal.
Your guilty plea
[29] Your guilty plea is a mitigating factor properly to be taken into account, but with proper regard to its lateness before trial.
Efforts at rehabilitation and prospects of further rehabilitation
[30] I acknowledge, as emphasised by Ms Feyen, that you do not appear to hold any entrenched views that would support further offending of this nature, or indeed, of any nature. This aspect of your make-up is closely related to your good character and I take it into account under that heading.
[31] Ms Feyen also emphasised the evidence you have provided as to the significant steps you have taken, particularly in terms of counselling, to address the difficulties you have experienced and to acquire the skills necessary to make independent decisions in your life.
[32] Ms Feyen correctly identifies from the pre-sentence report that you are assessed as presenting a low risk of reoffending and a low risk of harm to others, an assessment which I accept.
My assessment of the gravity of your offending.
[33] Ms Feyen has submitted that the nature and gravity of your role in the offending was moderate. In my view, and after allowing for all mitigating factors, your offending must more properly regarded as serious offending.
The direct and indirect consequences of a conviction upon you
Grounds advanced by Ms Feyen
[34] Ms Feyen submitted that the consequences I should take into account are the risk of deportation, the deterioration of your mental health and the consequences for your employment prospects.
The risk of deportation
[35] I have been referred to the relevant statutory provisions in relation to deportation liability.4 I have also had the benefit of the expert opinion of Mr Moses in relation to immigration law and practice.
[36]You will automatically become liable to deportation if a conviction is entered.
[37] There is a real and appreciable risk that your deportation liability will not be suspended by the Minister.
[38] I have regard to Mr Moses’ opinion that, in that event, the prospects of your succeeding on an appeal against deportation would be less than 50 per cent.5
[39] Notwithstanding the Crown’s observations as to the difference between deportation liability and actual deportation, I proceed on the basis that there is a real and appreciable risk that you will be deported if convicted.
[40] I also accept that the complexities of your marriage background mean you would find yourself, if deported, living in the United Kingdom rather than in India,
4 Especially Immigration Act 2009, s 161.
5 I do not accept Mr Moses’ separate statement that prospects of a successful appeal would be “very weak”, as that is inconsistent with his other, more measured, reference to probability.
because of decisions previously made in relation to your nationality. You have no support structure in the United Kingdom. You would be very isolated.
[41]These are all consequences which I bring into account in a balancing exercise.
Impact on your mental health
[42] I recognise, from the reports received, the continued mental health support you are needing. But it is clear your mental health difficulties are longstanding and, in recent years, have resulted from the consequences of your offending and your involvement in a potential trial. I recognise that conviction, if followed by deportation, is likely to exacerbate your mental health condition but the evidence before me indicates that your fundamental mental health issues were fully established whether or not you were convicted.
Employment prospects
[43] I note your concern that your employment prospects have already been harmed by the outcome of this proceeding. A recent rejection by one organisation has been identified. That said, the nature of the organisation that did not offer you a relationship is such that any assessment of the dishonesty involved in your offending, for which you are only now being dealt with by the court, was likely to result in your rejection whether or not you were convicted. (I note also that evidence that an earlier loss of an established employment position flowed not from an employer’s concern over your offending but from your own decision not to be vaccinated.) I view the consequences to your employment prospects in this case as primarily flowing from your involvement in this serious offending itself rather than from any conviction that may be imposed.
Would the consequences of conviction be disproportionate to the gravity of your offending?
[44] Any assessment of the proportionality of a conviction must turn on the facts of the specific case. That said, I have had regard to cases in which proportionality has
been considered and referred to by counsel here.6
[45] The test I must apply to your case is whether the consequences of conviction are out of all proportion to the gravity of your offending. The test is not whether the consequences are simply disproportionate.
[46] I have concluded that your offending is properly categorised as serious in its gravity. It can properly be referred to as grave offending. That assessment derives not only from the planning involved but particularly from the impact on those affected, the Council and other tenderers, and on matters of public authority administration generally.
[47] I recognise that the consequence of a conviction, if it were to lead to deportation, might be considered “disproportionate” but it falls appreciably short of being a consequence that is “out of all proportion”. The statutory regime means that, in the context of the entry of a conviction, serious consequences will often flow from offending of serious gravity.
My discretion
[48] I find no residual reasons cutting across the appropriateness of entering a conviction.
[49] Your application for a discharge without conviction will be dismissed. You will be convicted.
6 Bullock v Police [2012] NZHC 1374 at [14]; Police v Bhandari [2020] NZDC 24409 at [17]; Malapaka v Police [2020] NZHC 1121; R v Chand [2020] NZHC 1077; Alnatour v Police HC Auckland CRI-2004-404-400, 8 November 2004; R v Dufresne [2017] NZHC 1082; R v Singh [2014] NZHC 209.
The sentence upon your conviction
Background
[50] As I have indicated, you previously accepted a sentence indication that, based on a sentence of 24 months’ imprisonment, a sentence of home detention would be imposed should you have a suitable address for that purpose.
[51] In my Sentencing Indication I explained to you the process by which I reached an indicated sentence of 24 months’ imprisonment, after identifying a starting point of 32 months. Those reasons are fully set out in my Sentencing Indication and I have already touched on them in my earlier comments. That leaves for consideration any additional matters of mitigation.
[52] As you know, in my Sentencing Indication I allowed you a 12.5 per cent discount for your guilty plea and a further 10 per cent on account of your previous good character. Ms Feyen has asked me to recognise further matters in mitigation.
[53] First, there are your efforts at rehabilitation. Another way of putting this consideration is to factor into a sentence some recognition that encourages rehabilitation. I recognise in the ample material that has been provided that you have made real efforts at rehabilitation since you were charged. A further factor of five per cent is appropriate.
[54] Secondly, Ms Feyen refers to your level of remorse, combined with your exemplary community service. For the reasons already indicated, I do not consider a significant discount for remorse would be appropriate. That said, your commendable contribution by way of community service is a matter that speaks to a level of genuine remorse and I will allow a discount of five per cent on that account.
[55] Thirdly and finally, there is the cultural background I have received from Ms Singh. It clearly identifies why you were susceptible for several reasons to becoming involved in the scheme orchestrated by your late father and Mr Goel. However, that has to be weighed against the fact that you decided to become involved
as a key part of an orchestrated criminal plan. I will allow a discount of five per cent for what might be referred to as cultural conditioning and disadvantage.
[56] From a starting point sentence of 32 months’ imprisonment the indicated period of imprisonment becomes 20 months. The period of home detention you should serve will therefore be set at 10 months.
[57] Ms Bubna, I wish to add some personal words before I sentence you. This decision is not a decision as to whether you are a fit person to remain living in New Zealand — that decision will be made by others under the relevant provisions and consideration of the Immigration Act. Nothing in this decision is a rejection of the many letters of commendation that have been provided to me. You have given great service to your community and particularly in your voluntary work, you have done more than most people. I do regard your criminal conduct as an aberration — my decision is about the penalty appropriate for your serious offending. The evidence before me indicates that, but for that four month period in late 2016/early 2017, you have been and have since continued to be a person of very good, straightforward and reliable character. I would expect a copy of these sentencing remarks to be provided to the immigration authorities in the context of any steps being taken under the Immigration Act.
Conclusion
[58]I must now ask you to stand, Ms Bubna.
[59]Neha Bubna, I convict you on the charge of obtaining by deception.
[60]I sentence you to a term of 10 months’ home detention.
[61] The detention is to be served at the address identified in the pre-sentence report (the home detention address). Following sentencing you are to fly without delay to Auckland Airport and thence to go directly to the home detention address, to await the arrival of the Probation Officer and a representative of the electronic monitoring company.
[62] You are to reside at the home detention address unless you have the prior written permission of the Probation Officer to change address.
[63] You are to undertake and complete appropriate assessment, treatment and/or counselling as directed by and to the satisfaction of a Probation Officer.
[64]Please stand down.
ADDENDUM
[65] For the avoidance of doubt, I make an order that there is no continuing suppression of Ms Bubna’s name.
Osborne J
Solicitors:
Serious Fraud Office, Auckland
Counsel:
V Feyen, Auckland
NOTE: PUBLICATION OF THE JUDGMENT ANIi OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWii MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCES*'IBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTEN'CED OR THE CHARGE DISMISSED. SEE
THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KÖTI MATUA O AOTEAROA ÔTAUTAHI ROHE
CRI-2019-018-632 [2022] NZHC 2525
THE KING
NEHA BUBNA
Hearing: 3 October 2022
Appearances: A M Toohey and S J O’Brien for Cr.own
N A Pointer (written submissions) ated D I Matthews (oral submissions) for Defendant
Judgment: 3 October 2022
JUDGMENT OF OSBORNI' J
(sentence indication)
[1) Neha Bubna, you have requested that a Judge provide an indication of the sentence you may receive if you plead guilty to the change of obtaining by deception which will otherwise be the subject of the trial of yourself and three others scheduled to commence on 17 October 2022.
THE KING v R UBN A [2022] Nul IC 2525 [3 October 2U 22J
[2] The charge is brought under ss 240(1)(a) and (2)(b) and 241(a) Crimes Act 1961. The charge reads that you, together with Vivek Goel, Amar Singh, Ashish Sevta and Pawan Bansil between or ahout 31 October 2016 to I’m February 2017 at Hokltika, by deception, with intent to deceive and without claim off right, omitted to disclose a material particular in circumstances where there was a duty to disclose it, namely Vivek Goel’s conflict of interest with and provision of assistance to you and/or Techno Economic Services (NZ) Ltd (TES New Zealand) in relation to TES New Zealand’s tender submission for the contract to upgrade the Kumara and Whataroa Water Treatment Plants (the Upgrade Contract), indirectly obtained control over a benefit.
[3] The benefit is identified as being that you and/or TES New Zealand were awarded the Upgrade Contract.
[4]The maximum sentence for your offending is sew:n years’ imprisonment.
[5] The Crown has prepared a summary of facts in relation to the charge. Through counsel, you have accepted that summary for the purpose', of this indication. It is upon the basis of that summary of facts that you would be sentenced should you accept the sentence indication I give. The facts I recite will of course be admitted only as between the Crown and you — nothing in these remarks reflects any finding as between the Crown and other defendants.
[6] I will only briefly refer to the lengthy summary of facts which I have fully taken into account in the observations wh ich follow. "the following are some key points:
(a)it was the Westland District Council (Council) that was awarding the Upgrade Contract. Your co-defendant, Vi /ek Goel was an employee of the Council employed as Group Manager -- District Assets. He oversaw the Council’s procurement process for assets. Among his responsibilities was to conduct a fair and transparent procurement process;
(b)you were 33 years old at the time of the alleged offending. You operated a cake-baking business in Auckland. You had no experience in engineering or water treatment plants, the subject-matter of the Upgrade Contract;
(c)you became connected to the offending through the involvement of your late father, Pawan Bansil, with Vivek Goel. Your father operated a water treatment business in India called Techno Economic Services (TES India). You were in regular contact with your father after you migrated to New Zealand some seven years ago. You also had close personal relationships with the GoeI family including Vivek Goel and his father, Suresh GoeI. You were a regular guest of the Goel family;
(d)one of your co-defendants, Amar Singh, owns and operates an asset management company called ANA Group Ltd (ANA). He has a background in engineering. He was associated to Vivek Goel through their professions. In 2015, Vivek Goel engaged Amar Singh to carry out asset management work for the Council through short-term contracts. Amar Singh was then introduced to your father through his dealings with Mr Goel;
(e)your co-defendant, Ashish Sevta, is the son of Amar Singh. He works for ANA and is linked to Vivek Goe1 through his father’s work with the Council;
(
(8)
in early-2016, your father and Vivek Goel worked together to successfully obtain a contract with the Council for TES India, a project which did not in fact proceed;
when a contract relating to water treatment (which became the Upgrade Contract) came up, Vivek Goel took it upon himself to secure that contract for TES New Zealand ;
(h) Vivek Goel (with two employees from his team) was to be on the Panel Evaluation Team for the procurement p'rocess. The contract was offered as a Request For Tender (RFT) with the RFT documents released on 10 November 2016);
(!)
Vivek Goel assumed the role of putting I:ogether for TES the tender submission documents. Because of his conflicting roles, he was unable to carry out that aim by himself and required the assistance of people who would not arouse suspicion in relation to his involvement. lt was you, Amar Singh and Ashish Sevta who provided that assistance. At Vivek Goel’s direction, you made the nec.essary enquiries in order to put the tender submission documents together, working as a team with different roles in the process. You knew of Vivek Goel's role at the Council and were aware that there was a requirement to maintain secrecy in relation to Vivek Goel’s involvement in order to ultimately obtain the Upgrade Contract;
by maintaining secrecy, you assisted Mr Goel to act contrary to his lawful duties as an official. The agreement to mainta in silence was evidenced by your covert actions in relation to the procurement process. On 13 November 2016, your father texte‹i you as to discussions with Mr Goel and steps being taken in relation 'to the Upgrade Contract;
(k)the following day, 14 November, a New Zealand company was registered with the TES name, you becoming its sole director and sole shareholder. A flow of information fol1ov/ed between Vivek Goe1 and your father in relation to the Upgrade Contract, the two of them discussing how they were going to cost I:he tender. A generic gmail address was set up to stop others detecting; the deception in which you were all involved. Vivek Goel had access to the ema il account. Ashish Sevta and Amar Singh assisted Vivek Got:1 by providing a “legitimate face” to carry out his instructions and arrange sub-contractors. Ash ish Sevta became the named project-manager. Vivek Goe1 would use the gmail account to send documents and instructions to Ashish Sevta and
Amar Singh, signing off his emails as “Pawan Bansil” to avoid detection. Other communications were by phone and text message;
(1)Vivek Goe1 never disclosed to the Council or the Panel Evaluation Team his involvement with the TES tender documents or that he had drafted the documents;
(m)on 23 November 2016, you opened a bank account for TES New Zealand, transferring into it $10,000 from your personal account. Shortly afterwards you signed insurance documentation for TES New Zealand and paid operating costs for TES New Zealand ;
(n)you worked together with your co-defendants to ensure Vivek Goel’s assistance was kept secret from the Council and the Panel Evaluation Team. You and the others used numerous covert mechanisms to avoid raising suspicion of Vivek Goel’s involvement with TES. You encouraged and/or assisted Vivek Goel by agreeing to keep his corrupt assistance a secret from the Council and the Panel Evaluation Team. By that you enabled Vivek Goel to maintain his cornipt activities;
(0)the TES tender documents were submitted to the Council on 7 December 2016 purportedly signed by your father but bearing your electronic signature;
(p)four other companies also submitted tenders. None of the other four companies had any assistance from a member of the Panel Evaluation Team. None would have expected such assistance was being given to TES as it was against the rules of probity;
(q)TES made the lowest tender ($459,000 plus GST) and was offered the contract. You were involved in steps in late-January in setting up accounts and communications which again enabled you and Vivek Goel to conceal an existing close relationship. the summary of facts which I was advised you accepted says that at a meeting with the Council on
I February 2017 you introduced yourself to Mr Goel in front of his Council colleagues. In su bmissions, Ms Pointer has said you in fact deny that. But she accepts that your conduct could have indicated that you and Mr Goel did not know each other. Whatever your precise conduct was, it is clear that it was part of the continued concealment of your pre-existing relationsh ip with Mr Got:1;
(r)the contract was signed that day by you (fcir TES New Zealand) and by Mr Goel (for the Council);
(s)soon afterwards, congratulations were seiat backwards and forwards, from your father to you and Mr Goel and from Mr Goel to you and your co-defendants. Mr Goe1 in his communications set out mechanisms for you and your co-defendants to communic‹tte with each other;
that Upgrade Contract was not u1timatc!ly tulfi lled as the Council withdrew following the commencement of an investigation by the Serious Fraud Office; and
later in 2017 the Council instead offered the contract to another tenderer who accepted and delivered the project.
Personal history
[7]The Crown accepts that you have no previous convictions.
The Court’s approach to sentencing
[8] After considering the submissions made for the (Brown and on your behalf, it is my task to establish a starting point sentence which will be a period of imprisonment that has regard to any aggravating and mitigating aspects of your offending. The next step is to adjust that starting point for any aggravating or mitigating features personal to you. Your potential entry of a guilty plea and your previous good character are two such mitigating factors that I will come to. Ms Point.er says there may be other mitigating factors such as remorse and issues arising frcim your cultural background
which may entitle you to further discount but would require further information and
support before they can be taken into account.
[9] Finally, you will wish to know if my end calculation of a period of imprisonment stands at around two years, with the possibility that the end sentence will be two years or less. You will wish to know whether the Court would be prepared to consider home detention an appropriate alternative to imprisonment in your case.
Crown submissions
[10] The Crown relies on the purposes and principles of sentencing. Ms Toohey refers to the primary importance of the principles of deterrence and denunciation in cases where the deception undermines confidence in public bodies.
[11] For the assessment of culpability, Ms Toohey reI‘erred to the observations of the Court of Appeal in fi v Fe/yaii: '
[22] Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the
offending; the amounts ihvolved; the losses; the period over which the offendins occurred; the seriousness ot breaches of trust involved; and the impact on victims.
[12] Ms Toohey recognised that there was no guideline judgment in respect of offending under s 240 Crimes Act. She therefore referred to a number of cases in which the Courts in the course of sentencing have assessed a starting point for similar offending.’
[13] The maximum sentence is seven years’ imprisonment. Unsurprisingly, the starting points in the cases identified by Ms Toohey have varied from as short as two years and two months’ imprisonment to as long as five years and six months’ imprisonment.
' fi v Rai an CA97/03, 26 June 2003 at [22]. See also £ v No.ie (2016) NZHC 1109 at [20].
ñ v 0 Bi ien {2019] NZCA 83, (2019) 29 CRNZ 75, Borlase v R [2017] NZCA 514; R v yose,
above n 1 ; fi v George [20 16] NZHC 2067; Sei’ious Ft-mid C'jfice v In.r.s« [2022] NZDC 11114.
[14] Ms Toohey submitted the only feature of your offending that might be considered mitigating is that you were not the primary c'ffender (although you were integral to the success of the deception).
[4 5] Ms Toohey submitted that the aggravating features of your offending involve:
(a)the er tent o L loss and harm resulting from the offend Ing;
(b)a degree of breach of trust (not of the !,ame degree as Mr Goel’s) stemming from your responsibilities as a cc›mpany director dealing with the Council;
(c)the high degree of coordination and planning; and
(d)the personal benefit to your company, with the offending motif ated by personal gain.
[16] You heard Ms Toohey identify a starting point of i:hree years’ imprisonment as appropriate to reflect your overall culpability.
[ l7] The Crown noted it is unaware of any aggravating; features personal to you.
[18] ln terms of mitigating features personal to you, Ms foohey submitted a discount of five to ten percent for an guilty plea would be appropriate and a discount for previous good character would be available. Any other discounts would depend on information yet to come to hand.
Submissions on your behalf
[19] You have heard Ms Pointer identify an appropriate starting point as lying between two years two months’ and two years six months' imprisonment.
[20] Ms Pointed recognised that, central to this senteni:ing exercise are the needs to denounce your offending, to deter you and others from offending in a similar manner, to hold you accountable for the harm your offending has caused the community and
to promote in you a sense of responsibility for that harm. She emphasises nonetheless that the sentence must also be the least restrictive sentence available in the circumstances and should be one which assists your rehal›ilitation and reintegration.
[21]Of the aggravating features of your offending iclentified by the Crown, Ms
Pointer took issue particularly with the extent or loss of harm and the extent of gain.
[22] Ms Pointer noted that your offending may be distinguished ftom a case such as Serious Fraud Office v Hos.en. In Hossu, bogus invoices were created and the work was never to be undertaken. Here, Ms Pointer observi°s that, although TES New Zealand may have obtained an unta ir advantage in the procurement process, this was never a situation where the work would not have been undertaken. She further observes that no payments were ever made by the Council to TES New Zealand because of the cancellation. She nonetheless recognises that there would have been reputational loss to the Council. However, in relation to other losses incurred by the Council (such as having a review conducted into its tender processes) those she says arose from Mr Goel’s conduct as an employee and should not be attributed to Ms Bu bna “in her limited role”.
[23] Ms Pointer referred to the categories of harm recognised by the Court of Appeal in Ross v R, where loss flows from fraud, those being:4
(a)quantifiable actual loss;
(b)quantifiable intended loss that does not m‹iterialise;
(c)quantifiable potential loss which may not the intended ; and
(d)broader harm such as reputational loss.
[24] ln terms of personal gain, Ms Pointer submits that, because Ms Bubna’s assistance in setting up the New Zealand company was “as a front only”, and because
Serious Fi’oiid Office v Hossu , zbove n 2. Ross v p [20 l9] NZCA 45s at [49).
of her lack of relevant skills and experience, the Court should view her father, Mr Bansil, as the person who would be benefiting from the Upgrade Contract and not Ms Bubna.
[25] Finally, Ms Pointer identified as a mitigating feature of your offending that you had a lesser role than others and that your actual involvement can be limited to the period between incorporation of the company (17 November 2016) and the signing of the Upgrade Contract (I February 2017). Therefore, to the extent that others may have been involved in pre-meditation and planning, your pre-meditation should be viewed
Factors personal to you
[26] Ms Pointer has submitted that there are no personal aggravating features relating to you.
[27]In terms of mitigating features, she submitted that:
(a)for previous good character, you should receive a credit in the range of 15 per cent; and
(b)for your guilty plea, you should receive a ‹:red it of 15 per cent.
[28] She has also indicated to me that submissions may later be made in favour of further discounts on the basis of remorse and/or strong cultural factors relevant to the relationship between you and your father. I see little prospect of a further discount for remorse and also am doubtful that cultural aspects relating to your relationship with your father can count significantly in relation to the deliberate dishonesty in which you engaged.
[29] Finally, Ms Pointer submitted that with credits taken into account, the appropriate sentence would be within the range (that is, two years’ imprisonment or less) to justify the Court commuting the sentence to home detention, if not lower.
My assessment
[30] The nature of your offending — agreeing to and tiecoming an integral part of a scheme to unlawfully obtain a local government contras:t — distinguishes your case from many other instances of obtaining by deception. The consequences of your conduct inevitably went well beyond the loss or gain of money. The charge was appropriately framed in terms of the benefit you and your ‹:o-defendants obtained. The way you obtained that benefit and the nature of the benefit itself — a valuable local government contract — increases the relevance in your c:ise of some of the principles of sentencing — those include, first, the denunciation of your conduct and, secondly, the deterrence, particularly of others, from committing the same or similar offences.
[31] I substantially accept the Crown’s view of the aggravating features of your offending.
(a)Lo.uses
There have been quantifiable actual losses that. have predictably accrued, particularly once the criminality involved in the tender process was discovered. The fact that those have not all been quantified by reason of the urgency of this sentence indication does not alter their existence. They are real. The Council has incurred real costs in terms of management time, the investigation it needed to undertake and the costs of re-tendering i:he contract. Other tenderers lost all the costs associated with their tender exi•rcises that were doomed to failure by the conduct of you and your co-defendants. It is realistic to anticipate the total losses in that regard may well exceed the profit you and your co-defendants expected to achieve through the ill-gotten contract.
All that said, what distinguishes your case from most instances of obtaining by deception is the impact on this particular Council, the procurement industry more generally, and our society as a whole if it becomes known in this country that public officials are assisting their friends or family to obtain contracts from public bodies. As Ms Toohey said, we have the: example of one significant tenderer who, because of the conduct of yourself and your co-defendants, will no longer tender for work with the Westland District Council. That was an
entirely predictable loss for the district and broader economy of your disregard of the integrity of the tender process. The significance of such harm was identified by the Court of Appeal in Ross where Collins J, delivering the judgment, stated:’
[51] Of significance in this case was the broader harm to ANZ caused by the deceptions perpetrated by Mr Ross and his co-offenders. The banking industry is an integral component of the New Zealand economy and this country's reputation as a place where business and banking take place in an environment of honesty and integrity. That broader reputation of ANZ was placed at risk by Mr Ross and his co- offenders.
The reputational loss to the Council was predictable and significant.
(b)Abuse of position of trust
I do not approach this matter in the same way as Ms Toohey. You were not in a position of trust, in the legal sense, vis-à-vis the Council. But you were involved in this scheme precisely to set up a New Zealand entity that appeared to have the standing and presence needed to win the contract. You had with the Council reciprocal obligations of disclosure. Your failure to disclose the conflict of interest with Vivek Goel is worsened by the deceit which was a key part of your involvement with the establishment of TES New Zealand. That reflects how integral you were to the initial success of the scheme.
(c)Premeditation
Whether the specific steps of your of involvement lasted either three months or two months, you chose to become involved in a scheme that was already well thought out. You essentially adopted that earlier planning. Your pre- meditation was significant.
(d)Personal gain
Ro.s.s v F, above ri 4.
As a matter of law, in the way TES New Zealand was formed, you were the sole director and the sole shareholder with control over its operations and distributions. It is not for this Court on sentencing you to speculate that you may have chosen to distribute funds to others or may even have had existing side-agreements with your eo-defendants as to the sharing of gains. If you had such arrangements, you have chosen not to put evidence of them before me, and I therefore disregard that possibility.
[32] Fot all these reasons, while it is correct that your involvement should not be equated with that of Messrs Goel and Singh, who will if convicted be sentenced on the basis of their primary roles, your lesser role still has to be viewed in the context of offending with numerous aggravating features.
[33] In terms of the case law, I have considered each of the cases that Ms Toohey and Ms Pointer have referred me to.‘ The cases which I found most helpful are those I am listing in the footnotes to these remarks when they are typed up.
[34] The role of Mr Coffey in O’Brien v fi has distinct similarities to your role in this case. On the other hand, the offending of you and your co-defendants had the potential for significantly greater reputational harm to those affected, including even through to the national level.
[35] In the circumstances I have reached the view that a starting point of two years and eight months’ imprisonment would be appropriate in the absence of any mitigating factors personal to you.
[36]I accept there are two mitigating circumstances before me.
[37] Upon this sentencing indication, I would allow for your guilty plea a discount of 12.5 percent, representing one half the discount that would have been available for a prompt guilty plea.
Above fn 2. I have also had regard to he.Her v fi {20 12] NZCA 47.
[38] For your good record as a person aged 33 years at the time of your offending (now 38 years) I would allow a further discount of 10 per' cent.
[39] On rounding, those discounts deducted from the starting point of 32 months’ imprisonment produce a figure of two years or 24 months’ imprisonment. I do not view your offending as of such a nature as to demand a st:ntence imprisonment rather than of home detention. Should you have a suitable address for that purpose and a supporting report it is a sentence of home detention that I would impose.
[40] Having discussed with Mr Matthews the timing of Ms Bubna's response to this indication, I will give you, Ms Bubna, until 4.45 pm this Wednesday, that is the 5“ of October 2022 to accept this indication.
Osborne J
A M Toohey for Crown
Counsel: N A Pointer and D Matthews, Barristers, Christchurch for 19 Bu bna
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