R v Goel
[2023] NZHC 585
•22 March 2023
REDACTED VERSION OF JUDGMENT
SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011: SEE PARAGRAPH [163].
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-018-632
[2023] NZHC 585
THE KING v
VIVEK GOEL AMAR SINGH
Hearing: 22 March 2023 Appearances:
A M Toohey for Crown
J R Rapley KC and D M Kirby for Defendant Goel C J Lange for Defendant Singh
Sentencing:
22 March 2023
SENTENCING NOTES OF OSBORNE J
Introduction
[1] Mr Goel and Mr Singh, you may remain seated while I explain my sentences to you. At the end I will I ask you to stand.
[2] These sentencing remarks will be transcribed and a copy of them will be made available later today.
R v GOEL [2023] NZHC 585 [22 March 2023]
[3] Mr Goel and Mr Singh, you appear for sentence today having each been found guilty of 14 charges of corruption and bribery of an official pursuant to s 105 of the Crimes Act 1961. I will be calling that “the Act”, I will be referring to other Acts as well. A jury found you, Mr Singh, guilty of paying bribes to Mr Goel. The jury found you, Mr Goel, guilty of receiving those bribes from Mr Singh.
[4] Additionally, you Mr Goel were found guilty of four charges of corrupt use of official information under s 105A of the Act and two charges of obtaining by deception under s 240 of the Act.
[5] You, Mr Singh, were additionally found guilty of one charge of obtaining by deception under s 240 of the Act.
[6] In your case, Mr Singh, you were also found guilty of nine charges of obstructing a Serious Fraud Office (SFO) investigation pursuant to s 45 Serious Fraud Office Act 1990 — that is, that you gave false or misleading information to the SFO when required by the SFO to provide information.
[7] As you will be aware, the maximum penalty for each of the Crimes Act charges is seven years’ imprisonment. The maximum penalty in relation to the SFO Act charges is 12 months’ imprisonment or a fine not exceeding $15,000.
[8] In these sentencing remarks, I will first summarise the factual background involved in your offending. Some factual matters are clear from the jury’s verdicts. Other matters I refer to reflect my conclusion of the factual background, putting myself effectively in the place of a 13th juror at your trial. Those present in court today and the wider public have a right to know the basis upon which I am sentencing you both today.
[9] After addressing these matters, I will come to the sentencing purposes and principles. I will then consider your sentence, Mr Goel, and then Mr Singh’s.
Background to the charges
Introduction
[10] The corruption and dishonesty offending occurred within an 18-month period between August 2015 and February 2017. Mr Singh’s obstruction offences occurred during the period January to March 2018.
Background to the charges
[11] Mr Goel, you, with an engineering background, had occupied senior management positions at the Westland District Council since 2010. Throughout the period of your offending you were employed as Group Manager, District Assets. You reported directly to the Chief Executive and your areas of responsibility covered some two-thirds of the Council’s spending.
[12] You, Mr Singh, also from an engineering background, had particular expertise in the asset management area and provided services through your company, ANA Group Ltd (ANA).
[13] The two of you met through your professional circles and you, Mr Singh, began in early 2015 to provide consultancy services to the Council.
[14] Part of your role, Mr Goel, was to oversee the procurement processes applying to the Council’s assets. Council policies distinguished between larger projects and requirements (generally over $200,000), for which competitive processes were required, and smaller contracts, in relation to which the responsible manager could make direct appointments.
[15] I will shortly come to refer also to Techno Economic Services Ltd (TES), an Indian water services company controlled by a Mr Pawan Bansil, who has subsequently died. TES and Mr Bansil were involved in those aspects of your offending that I will refer to as the Franz Josef Contract and the Upgrade Contract. You, Mr Goel, had connections with Mr Bansil and his family, including his daughter Neha Bubna who lived in Auckland. A New Zealand company, TES New Zealand Ltd, (TES (NZ)), was formed with a view to obtaining the Franz Josef and Upgrade
Contracts. Ms Bubna, without relevant experience, became its sole director and shareholder. She has subsequently pleaded guilty to a charge, in relation to the Upgrade Contract, of being a party (with the two of you and Mr Bansil) to obtaining by deception the benefit of the Upgrade Contract.
[16] Ms Bubna was recently sentenced on that charge to a term of ten months’ home detention (based on an indicated period of imprisonment of 20 months).1
[17] You, Mr Singh, were introduced to Mr Bansil and TES through your dealings with Mr Goel.
The bribery offending
[18] ANA’s first work for the Council had been carried out on a short-form agreement entered into in January 2015.
[19] The bribery convictions relate to the period between August 2015 and September 2016 when 10 short-form agreements were entered into between the Council and ANA, all but three of which were directly awarded by Mr Goel to ANA. You, Mr Goel, were also responsible for approving the Council’s payment of the majority of ANA’s invoices.
[20] I make clear at this point that there is no suggestion that any of the required work by ANA was performed other than satisfactorily.
[21] The jury found the two of you guilty respectively of making and receiving bribes totalling $70,690. These, in relation to $248,183 invoiced ANA contract work, represented 16.9 per cent of ANA’s total billings to the Council. There was an obvious relationship between the amounts in question and records kept privately by Mr Singh in relation to what he recorded as “project management”.
[22] The arrangements for funding and payment of bribes were made carefully so as to hide their existence. The payments were funded by cash withdrawals by
1 R v Bubna [2023] NZHC 158.
Mr Singh and handed over directly when the two of you were in the same location. You, Mr Goel, almost entirely avoided lodging the cash in traceable ways, but with rare exceptions in relation to credit card payments.
[23] The jury found you both not guilty in relation to one charge — given the withdrawals allegedly involved in relation to that charge, and the timing of the alleged payment, the jury could not be sure those withdrawals related to a bribe.2
[24] In your case, Mr Singh, the reason you were prepared to pay bribes clearly related to the value of the ongoing contract work for ANA— the revenue received from Council contracts for the March 2016 year was 36 per cent of ANA’s total revenue and for March 2017 was 45 per cent of the total revenue. The benefit for you, Mr Goel, was obvious. You pocketed the $70,690. That was wrong in terms of criminal law and as a matter of trust law it is money to which the Council is entitled but has not been paid.3
The RFQ contract
[25] There arose an opportunity to contract out Council asset management work following the December 2015 resignation of the Council staff member who had been attending to asset management. This gave rise to a contract which was to be awarded through a request for quotation process — what was referred to throughout the trial as the RFQ contract. By this time Mr Singh’s payment of bribes to Mr Goel had been underway for some months.
[26] Mr Singh and ANA obtained an advantage in the RFQ process (not criminal in itself) through being asked by Mr Goel to assist in the preparation of the procurement documents. Mr Singh was also one of the two decision-makers on the Council’s panel in relation to the RFQ contract. The process by which four invited companies were to submit quotations was a closed procurement process with agreed requirements as to the confidentiality of all responses. You, Mr Goel, disclosed confidential details to Mr Singh of the quotation of Opus International Consultants Ltd (Opus). This was
2 Charge 14 (Mr Goel); and Charge 29 (Mr Singh) — alleging payment in the period between 26 and 27 January 2017.
3 Attorney-General for Hong Kong v Reid [1994] 1 NZLR 1 (PC) at 3.
done in a series of messages sent by you, Mr Goel, from your private cell-phone to Mr Singh during the course of Mr Goel’s evaluation session with Mr Borg. While in your defence it was accepted Mr Goel’s release of communication of the Opus details was inappropriate, the jury clearly rejected the proposition that it was foolish rather than criminal behaviour. A further defence, based on the proposition that ANA was being awarded the RFQ contract before Mr Goel’s inappropriate disclosure was made, was also rejected.
[27]As a result of this conduct, ANA was awarded the RFQ contract, initially for
$100,500 but with ANA subsequently obtaining a significantly greater level of payment through that contract.
The Franz Josef Contract
[28] The Council’s wastewater treatment facilities at Franz Josef needed to be upgraded or replaced urgently and at substantial expense.
[29] The focus of three charges against Mr Goel in relation to the Franz Josef Contract was on your dealings, Mr Goel, with Mr Bansil. But for his death he would have been a co-defendant in these charges.
[30] You, Mr Goel, were convicted of three charges in relation to the procurement of the Franz Josef Contract, namely:
(a)failing to disclose your conflict of interest and provision of assistance to Mr Bansil and/or TES;4 and
(b)two charges of corruptly using or disclosing information to obtain an advantage for Mr Bansil and/or TES.5
[31] Mr Bansil had travelled to New Zealand and you had arranged for him to provide a report on a possible solution to the Franz Josef issues. It was clear on the
4 Charge 33 —Crimes Act 1961, s 240.
5 Charge 34 (course of conduct) and Charge 35 (discrete use/disclosure of information from Filtec’s document for Franz Josef —Crimes Act, s 105A).
evidence that TES (India) was a significant company that had been involved both in its own country and internationally in major projects of the sort the Council needed attended to.
[32] As matters moved forward between you and Mr Bansil, you Mr Goel failed to disclose to the Council your conflict of interest arising from your relationship with Mr Bansil. You also failed to disclose to the Council the fact that you had contributed to the drafting of the TES report and you were subsequently assisting TES in relation to its proposal documents when the Council entered a Request for Proposal process. You had arranged for the Council to appoint a probity auditor for this process, a step clearly intended to provide an appearance of legitimacy to a tender process in which you were providing concealed assistance to one tenderer. That assistance (in relation to Charge 35) involved your disclosure and use of methodology provided by Filtec in support of its tender and other service you provided to TES by drafting letters and creating and contributing to TES documents.
[33] In relation to your conflict, Mr Goel, the jury rejected the proposition that you had obtained some sort of agreement from the Council’s Chief Executive for the type and level of assistance and the nature of disclosures you were giving to TES.
The Upgrade Contract
[34] The Upgrade Contract related to the Council’s need to upgrade two water treatment plants (Kumara and Whataroa). It was to be offered on an open tender basis.
[35] You, Mr Goel, set out to assist Mr Bansil to obtain the Upgrade Contract for TES. Others had to be involved to ensure the TES tender was acceptable to the Council. Neha Bubna, Mr Bansil’s daughter, with no relevant experience, was brought in to front the New Zealand company, with steps subsequently taken by you, Mr Goel, to conceal your relationship with her from Council staff. Secondly, you Mr Singh and ANA were brought in to assist in relation to putting the tender submission documents together in particular in relation to the insurance content. You, Mr Goel, orchestrated the activity of all those involved. Your assistance, Mr Singh, enabled Mr Goel to keep secret his involvement in TES’s tendering activities. The use of a private gmail account to which those involved had access and through which you, Mr Goel, created
communications in the name of Mr Bansil, enabled the group to create a false impression of distance between you and the others including Mr Bansil, Ms Bubna and you, Mr Singh. As it was, Mr Goel, you did not merely assist in TES’s process, you ran the process.
[36] As it transpired, TES (NZ) was selected by the Council as the preferred tenderer and subsequently offered the Upgrade Contract. The contract however was not ultimately fulfilled as a result of the SFO investigation commencing. Later in 2017, the Council awarded the Upgrade Contract at greater cost to another of the tenderers, Southwater.
The funding background
[37] It is a feature of all the Council’s intended contracts involved in this case that the Council had a heavy reliance on central government funding for its projects. While the Council maintained in any event its own requirement to ensure the probity of Council dealings, including through the declaration of conflicts of interest and written commitments of confidentiality, the evidence at trial established that such matters were equally required, and well known to be required, by government agencies administering such funds.
The obstruction offending
[38] You, Mr Singh, were also convicted of nine charges of obstructing an SFO investigation. Those relate to the false explanations you gave for nine of the cash withdrawals that funded bribes.
[39] You gave a range of explanations. The most common was that you had been making cash payments in relation to building projects carried out by Sunrise Construction Ltd in Auckland. In one instance you said the withdrawal was to fund a cash advance to a motor vehicle retailer for company vehicle expenses. In each case, following an exhaustive review by and evidence from the SFO investigator, Joanne Macduff, it was demonstrated that your explanations were false. It is also clear to me from the documents (in the form of invoices) provided to the SFO by you in support
of your explanations that they were created after the event to (falsely) support your explanations.
[40] Very substantial investigation and analysis was necessarily undertaken by the SFO to work through and rebut each of your explanations, as reflected in the lengthy evidence at trial.
Summary of outcomes — Mr Goel
[41] You, Mr Goel, personally obtained the following benefit through receiving bribes (Charges 1–13 and 15) — $70,690.
[42] There would have been potential further (unquantifiable) benefits had an SFO investigation not commenced.
Summary of benefits obtained — Mr Singh
[43]You, Mr Singh (for ANA and/or yourself), obtained the following benefits:
(a)obtaining a commercial advantage in the RFQ contract tender process (the contract sum being $100,500); and
(b)the potential (unquantifiable) benefits that might have accrued as a subcontractor on the Upgrade Contract (TES (NZ)), with a total contract sum of $459,000.
Summary of benefits obtained — TES
[44] TES and TES (NZ) as the intended beneficiaries of criminal assistance provided by both of you obtained benefits:
(a)on the Franz Josef Contract, an advantage in the tender process, through being named the preferred proposer; and
(b)a commercial advantage in the Upgrade Contract process through being awarded the Upgrade Contract.
Impact of offending
Victim impact of offending
[45] It needs to be stated in the clearest terms — offending such as yours is far from being victimless. Responsibly, neither Mr Rapley nor Mr Lange has suggested otherwise.
[46] Your offending has impacted in at least three different areas. Without intending disrespect to those who gave victim impact statements, I will not be naming them today. In most cases, their association with you has affected them in their professional lives and I do not intend by my remarks to cause that association to be reinforced in any way.
The Westland District Council
[47] The current Chief Executive of the Council has provided a victim impact statement identifying the impact of your offending on the Council. His informed and detailed observations on the impact on the Council are beyond adequate summary here but I identify particularly the following:
·the offending, of you in particular Mr Goel, has tarnished the image of the Council and eroded the trust the community and contractors placed in the Council: some members of the public still no longer trust the Council to manage their public funds appropriately;
·business relationships of the Council have failed through the resulting lack of trust in the Council’s procurement processes;
·external parties are now suspicious that other staff in the organisation are involved in or open to corruption;
·the Council has been significantly burdened both in cost and delay through investigating and addressing the consequences of the offending and in having projects and initiatives commenced and completed;
·the delay in completing projects has led either to the increase in costs or the downsizing of the necessary projects; and
·the Chief Executive and individual staff members have experienced varying degrees of anxiety due to reputational damage.
Individual Council staff members
[48] The Council engineer who dealt with the Council’s water services in 2016 and 2017, and gave evidence at your trial, has since moved to another council. She refers to the impact of your offending on the Council as a body but also identifies the personal impact on her as an individual. As the investigation into your activities proceeded, she found focusing difficult, she avoided interactions outside work and she spent evenings upset and confused as she tried to process mentally what had happened. The toll of this has impacted on her confidence, her career decisions and her professional development. She has had to endure hearing professional conversations as to how stupid the Council staff must have been not to have realised what was going on. Significantly, she views the most seriously let-down people as the Westland community rather than herself personally.
[49] In considering those two victim impact statements I have not overlooked the reference provided for you, Mr Goel, by a former elected member, the mayor of the district at the time of your offending. He speaks very favourably of your attitude and your work for the Council at a time when the Council was under significant regulatory and financial pressure. For his part, he expresses great surprise to hear you had been found guilty. He, of course, did not hear the evidence the jury and I heard. His particular reference reflects a tragic aspect of your offending — your offending, Mr Goel, was carried out by a person who was deserving of esteem for the service you had rendered and were capable of rendering to this Council. Yet it was precisely the regard and trust in which you were held (which apparently endures to this day in the eyes of some) that enabled your offending to remain undetected for a lengthy period.
Representatives of contracting companies
[50] I have received victim impact statements from both professionals who provided support services to the Council in relation to tendering processes and from professional employees of companies who competed unsuccessfully for the Franz Josef and Upgrade Contracts. One senior engineer speaks graphically of the stress he suffered as a result of his innocent association with corrupt commercial dealings, understanding that he was a suspect for part of the investigation and later having to give evidence. He also refers to the potential loss of Council work his former employer suffered.
[51] Two other statements have been provided by senior staff in companies whose bids were rejected in the course of the corrupt processes. Between them they speak of the direct losses incurred in money invested into bid processes (one refers to tender costs of $50,000), the impact on their company relationships with bid-partners, the impact on staff income and staff retention as project targets were missed, the concerns that arise in relation to misuse of intellectual property, and the resulting distrust of local government procurement processes and those involved in such processes. The impact has been severe and enduring.
Summary
[52] I acknowledge the harm and losses identified in each of the victim impact statements. They provide important information about the effect of your crimes on the victims from their perspective, and they provide balance in relation to the other information before the Court in relation to each of you.
[53]I turn now to your personal circumstances.
Personal circumstances
Mr Goel’s personal circumstances
[54] In your case, Mr Goel, I have a number of reports and documents which have informed me of your personal circumstances:
(a)a report of Natalie Ridler under s 27 Sentencing Act;
(b)the report of Dr Yvette Ahmad, a clinical psychologist;
(c)12 character references from family members, friends, former colleagues and professional contacts; and
(d)a brief pre-sentence report from the Department of Corrections.
[55]The reports tell me these things about you.
[56] You are now 46 years old. You were born and schooled in India and trained as a civil engineer, undertaking work with your father on public works.
[57] You came to New Zealand on a job search visa in 2000 and initially worked in humble occupations.
[58] You married for the first time —a traditional arranged marriage — in 2001. You became involved in the liquor retail industry, a venture that failed. You then obtained employment in Taranaki as a Council Operations Manager, where you did well.
[59] Three children were born to your first marriage, now aged 20, 16 and 13. [REDACTED] You obtained a divorce in 2015 after [your wife] left New Zealand and returned to India.
[60] In 2012 you obtained a senior manager’s role at the Westland District Council and moved to Hokitika. It was in 2012 that your first wife left New Zealand, leaving you and the children behind.
[61] Your life in Hokitika became hectic, with days split between long hours looking after your children and attending to Council work.
[62]You remarried in 2016, the marriage lasting only 19 weeks. [REDACTED].
[63][REDACTED].
[64] You refer to having a good relationship with the Chief Executive Officer who was at the Council at the time of your arrival, and a generous remuneration package. You suffered a disappointment at not being offered the Chief Executive position when the CEO resigned and you report difficulties in your working relationship with the new CEO who introduced a restructuring which saw you end up in your subsequent role as Group Manager - District Assets.
[65] You report working in very stressful circumstances in the period that followed, and I accept they were stressful. The Council had a number of serious problems with its water facilities and was working under both time and financial restraints including due to regulatory and court sanctions. You felt a pressure to save money for the Council on its projects and to find economical solutions. The Council has a small rate-payer base with responsibility for a disproportionately-sized region to maintain.
[66] You through this time were also heavily engaged in looking for employment elsewhere, making repeated trips around New Zealand for job interviews.
[67] The reports I have received emphasise the stress you were living under as a solo father looking after the needs of your children and in a locality where you felt culturally isolated. Dr Ahmad refers to medical reports from 2016 and 2017 (and subsequently) when you were having difficulty sleeping and were prescribed sleeping pills and anti-anxiety medication. I note, however, that your offending had commenced in September 2015.
[68] It is clear from the reports and references received, including interviews of your family members, that you have enjoyed a close and supportive relationship with your parents and that you have been, in difficult circumstances, an excellent father and caregiver for your children. The quality of your close, caring relationship with your children has been detrimentally affected by the lengthy period in which, first, your activities were investigated by the SFO and then subsequently you were before the court, and finally you have served a period in prison.
[69] You now have many stresses in your life. From 2016, you have been repeatedly seen in relation to high stress and treated for depression with anxiety.
[70] You have understandable concerns for your elderly parents who have, due to your imprisonment, become the caregivers for your children. Your parents have their own physical issues.
[71] Your children, in varying degrees but particularly in the case of your daughter, are understandably upset and extremely stressed at your situation and their separation from you. Language limitations between your children and their grandparents add to the difficulties and cut across any normal family life.
[72] In Indian cultural terms, there is a fundamental concern for you in not being able to meet the expectation that the eldest son of a family looks after all the family members including their elders.
[73] The friends and acquaintances who know you closely and who have provided references speak consistently of your decent, hard-working and trustworthy manner, and your dedication for the support of your children and your parents. Others recognise the particular skills of risk and asset management that you brought to the Council and the negotiating skills that added value to Council initiatives.
Mr Singh’s personal circumstances
[74] In your case, Mr Singh, I also have documents in relation to your personal circumstances:
(a)four written character references from professional contacts;
(b)a printout of your medical history while you have been in prison since December 2022; and
(c)a brief pre-sentence report from the Department of Corrections.
[75] You are now 63 years old. You were born and schooled in India. You married your wife (to whom you remain married) some 40 years ago. You and your wife have two adult sons and four grandchildren, all of whom reside in New Zealand.
[76] I infer that you gained your initial engineering qualifications while still in India. In 1995 you moved to New Zealand and gained citizenship in 2001. You earned a post-graduate qualification in engineering at Auckland and you hold professional qualifications in engineering, including as a chartered professional engineer. You have held roles as lead assessor of applicants applying to be registered.
[77] Your career has also involved qualifications in asset management, and you have been a frequent contributor to professional conferences including in other jurisdictions. The Probation Officer informed me that you have been employed at high levels of asset management with over 450 international projects completed.
[78] The positions you have held and the references that have been provided reflect the substantial contribution you have made to your chosen professions, the good standing you have held in those professions and the extensive voluntary contribution you have made to professional bodies.
[79] Your wife has reported to the Probation Officer that you have been a positive role model for your sons and have been a caring husband. In the period leading up to trial you remained living with your wife while on bail conditions for three years.
[80] Your medical notes while in prison refer to you reporting you suffer from claustrophobia, a matter that was also raised with me by counsel with me during your trial. I have not been provided with a medical report that contains a confirming diagnosis, but I do note Mr Lange’s statement to me in his submissions. He reports from your discussion with Corrections that you have been advised that Christchurch Men’s Prison will be the most appropriate facility for you if you are to serve a prison sentence in light of the fact you suffer from claustrophobia. Given that you do not have family or friends in the South Island, that would increase your separation and isolation.
The period of SFO investigation and prosecution
[81] I note the SFO investigation commenced in February 2017, with both of you soon thereafter being aware that you were under investigation. Initial charges were not laid until September 2019. Your trial was adjourned when the Crown laid the additional bribery charges. The trial ultimately commenced in October 2022, concluding in December 2022.
Approach to sentencing
[82] The Sentencing Act 2002 sets out the purposes and principles of sentencing that must be considered by the Court.6 A starting point is based on the offending and is adjusted to reflect aggravating or mitigating features personal to the offender.7
Bribery charges
[83] I will take the bribery charges as the leading charges when considering your sentencing.
[84] There is no tariff case for bribery or other corrupt offending of that nature. That said, a range of relevant factors has been identified in sentencing decisions dealing with corruption. In relation to bribery, I refer in particular to the cases of Borlase v R,
Field v R; R v Nua; R v George and Serious Fraud Office v Hossu.8
[85] From those cases, it can be seen that significant factors relevant to sentencing have included:
(a)the extent of damage to the organisation whose employee has been corrupt, with consequences to the organisation’s business. That includes both direct and indirect financial loss, impact on morale within
6 Sentencing Act 2002, ss 7 and 8.
7 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
8 R v Borlase [2017] NZHC 236; Borlase v R [2017] NZCA 514; Field v R [2011] NZSC 129, [2012] 3 NZLR 1; R v Nua [2001] 3 NZLR 483; R v George [2016] NZHC 2067; Serious Fraud Office v Hossu [2022] NZDC 11114. See also R v George [2016] NZHC 1730 (sentence indication).
the organisation and reputational damage in the media and among the public;9
(b)the harm occasioned to employees within the organisation, both in terms of association with an organisation that employed an individual engaging in corrupt practices and/or contracted with outsiders who were engaging in corrupt practices, particularly where that continues apparently undetected for a lengthy period and, secondly, the potential damage to the career prospects of innocent employees;10
(c)the impact upon entities that have or would otherwise have dealt with the organisation but which, through the bribery, suffer commercial disadvantage in dealing with the organisation and/or suffer financial loss through believing they were dealing in a process that had not been corrupted;
(d)broader considerations relating to New Zealand’s international reputation as a country where public corruption is virtually non-existent;11 and
(e)the insidious nature of corruption acting as encouragement for others to participate or copy.12
[86] A further consideration relevant here is that yours was multiple offending over a prolonged period that may warrant the imposition of terms of imprisonment at the upper end of the sentencing scale.13
9 R v Borlase, above n 8 at [37]–[38].
10 R v George, above n 8 at [19]–[20] (sentence indication); R v Borlase, above n 8 at [39].
11 R v Borlase, above n 8 at [39].
12 R v Nua, above n 8 at 484.
13 Borlase v R, above n 8 at [30]–[31] — Mr Borlase convicted on eight separate charges relating to provision of payments and benefits to two public officials; Mr Noone convicted on six charges. The Court of Appeal observed at [31]: “the cumulative pattern demonstrates criminality on a serious scale”.
[87] Mr Rapley directly addressed the issues of deterrence and denunciation. He referred to a number of cases in which the courts have expressed reservations or doubts as to the deterrent effect of long finite sentences.14
[88] Having regard to the line of authority in relation to deterrence for corruption, I view deterrence as one matter properly to be taken into account particularly in relation to the appropriateness of imposing a prison sentence at all. The approach I will take in relation to both of you is that the principle of deterrence favours in your cases a sentence of imprisonment and it is mainly other principles, particularly denunciation, that should most inform the length of sentence.
[89] On the approach for sentencing to bribery in particular, I lastly turn to the difference identified by Mr Rapley between the acceptance of payments where there is a preceding promise or bargain and those where, as described by Ms Toohey for the Crown, the person being bribed may be regarded as “on the payroll”, not necessarily doing anything wrong in particular in the management of the relationship. Having regard to the way in which the Crown put its case at trial, I consider it appropriate to regard the bribery here as relating to an “on the payroll” situation.
Other corruption convictions (Mr Goel only)
[90] The other corruption convictions (other than in relation to bribery) relate to the corrupt use of official information.15 Similar considerations apply to those convictions.
Deception charges (both of you)
[91] In relation to the convictions for deception, occurring in the context of the Council’s dealings with potential tenderers, many of the considerations that arise in relation to bribery cases also arise in relation to cases of deception. That is reflected in the judgment of the Court of Appeal in Ross v R, where the Court recognises as categories of harm: the quantifiable actual loss; any quantifiable intended loss that did
14 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [91]; Berkland v R [2022] NZSC 143 at [53];
R v Wellington [2018] NZHC 2196 at [8]. See also R v Ross [2018] NZHC 2552 at [81]–[84].
15 Above n 4, s 105A.
not materialise; any quantifiable potential losses that may not have been intended; and broader harm such as reputational loss.16
[92] Against that background, it has been recognised by this Court that the amount of money lost in fraud cases is not singularly determinative of the seriousness of the offending.17
Obstruction (Mr Singh only)
[93] The deliberate provision of a false or misleading explanation to the SFO is offending that may properly be regarded as distinct from any offending that preceded it and to which the SFO investigation relates.18
[94] Similar considerations of deterrence and denunciation arise to those I have already discussed — the sentence imposed should not be so low as to incentivise defendants to provide false explanations to the SFO.19
The structure of my sentencing
[95] In assessing the appropriate sentencing for each of you, I identify deterrence and denunciation as the most relevant principles. I accept, as both counsel have submitted, that it is very unlikely, given your previous histories and these convictions, and the limits that will be placed upon your careers due to your convictions, that you will reoffend.
[96] The aspects of this case that are particularly important are the need to reflect the gravity of your offending, including by reference to your individual degrees of culpability; the need for consistency in sentencing; and consideration of the effects of your offending. I must impose the least restrictive outcome appropriate in the circumstances.
16 Ross v R [2019] NZCA 455 at [49].
17 Cole v Police HC Wellington, AP 132/00, 7 February 2001 at [21].
18 R v Child HC Auckland T 0007/08, 21 June 2002 at [48]; Serious Fraud Office v Hewitt DC Auckland CRI 2004-098-5317, 21 December 2005 at [38].
19 Serious Fraud Office v West DC Auckland CRI 2003-004-44116, 7 April 2005 at [9].
[97]To fix the appropriate sentences, I am required to consider:
(a)first, a starting point:- that is the sentence that I consider reflects the seriousness and culpability of your crimes by reference to the aggravating factors of your offending;
(b)secondly, any circumstances personal to you that make your offending worse; and
(c)thirdly, any circumstances personal to you that reduce your level of responsibility.
Mr Goel
Starting point — bribery
[98] I begin with the lead offence of bribery. As I have said, there is no tariff case for this type of offending.
[99] In assessing culpability for your acceptance of bribes, the Court of Appeal’s guidance in fraud-related cases, including R v Varjan, is of assistance.20 The matters I take particular account of are the nature of the offending; its magnitude and sophistication; the type and circumstance of the victim; the motivation for the offending; the amounts involved; the losses caused; the period over which the offending occurred; the seriousness of any breaches of trust involved; and the impact on victims.
[100] I will start with the harm and loss. I have already referred to the information before me as to the substantial harm caused to the Council, those working within the Council and those providing or seeking to provide services to the Council, and to the broader community. The total amount involved in the bribes — around $70,000 — was, as noted by Ms Toohey, effectively funded by the Council. There then flowed the indirect losses to the Council as it had to investigate and work through the consequences of your offending. The financial impact on unsuccessful tenderers falls
20 R v Varjan (CA) 97/03, 26 June 2003 at [22].
more appropriately to be considered in relation to the deception charges and I do not bring that into account as an aggravating factor of your bribery.
[101] The bribery arrangements continued for a 16-month period from September 2015. It is clear payments would have continued but for investigation commencing. There was sophistication to the arrangements, with such careful concealment of the payments that reliable evidence was not obtained for some considerable time after investigations commenced into the different issue of the tendering conduct.
[102] As the official involved, Mr Goel, yours was a serious breach of trust. Your very senior position in the organisation meant that those around you placed, and were entitled to place, great reliance on your integrity.
[103] As I have said, your area of responsibility covered 67 per cent of total Council spending — and much of that which related to ANA and Mr Singh could be awarded on direct contracts by you, without competitive bidding.
[104] The motivation for your offending, Mr Goel, was clearly personal gain. It is not suggested for you that your offending was driven by personal financial constraints. It may have been greed. It may have been a view on your part that you were being underpaid by the organisation and that you would address that by taking payments from Mr Singh. Whatever explanation is correct, the motivation lay in substantial, personal gain.
[105] Responsibly, Mr Rapley has not suggested there are any mitigating features relevant to your offending that should be brought into account in the starting point.
[106] To ensure consistency with other sentencing, I have referred to each of the cases identified by counsel.21
21 Borlase v R, above n 8; R v Nua, above n 8; R v George, above n 8; Field v R, above n 8; R v Rasila [2020] NZHC 964.
[107] As you have heard, the Crown invites me to view your bribery offending as similar to that of Mr Noone in Borlase and the defendant in Nua.22 In Nua, the Court of Appeal observed that a starting point in excess of five years’ imprisonment could have been justified. In Borlase, Fitzgerald J adopted a starting point of five years and six months’ imprisonment.
[108] While there is significant overlap between the features of your case and those two cases, including particularly in relation to the gross breach of trust, I consider there are significant differences that impact on your culpability, including in relation to the shorter period of your offending, significantly smaller sums involved, and in the case of Mr Nua his taking payment for the carrying out of improper acts.
[109] That said, your offending continued throughout the time of Mr Singh’s provision of services to the Council and clearly would have continued but for the commencement of the investigation.
[110] On your behalf, Mr Rapley invited me to place more emphasis upon R v George for comparison.23 In that case, a starting point of three years and nine months’ imprisonment was adopted in relation to a council employee who took $103,580 worth of gifts over a seven-year period across two councils.
[111] Mr Rapley referred also to R v Rasila.24 There, the defendant had accepted a bribe of $15,000 to facilitate the award of a contract to an associate (causing the employer council loss of $27,000 and creating profit for the associate’s company). A starting point of 18 months’ imprisonment was adopted in what Mr Rapley correctly describes as a transactional bribery case.
[112] Mr Rapley submitted that the starting point for you should be 16 months’ imprisonment contrasted with the five years’ imprisonment suggested by the Crown.
[113] In my view, the gravity of the corruption involved in the George case comes closest of the cases mentioned to your case, Mr Goel. I also consider your bribery was
22 Borlase v R, above n 8; R v Nua, above n 8.
23 R v George, above n 8 (sentence indication).
24 R v Rasila, above n 21.
at least as culpable as that in George when all the circumstances are taken into account. Mr George’s offending had developed in an environment when a more senior officer at the council had adopted what was described as a “collaborative” approach to independent contractors, with socialisation frequently occurring and gifts such as travel vouchers and entertainment flowing. In your case, there is no similar background to that which confronted Mr George. There is also the fact that, but for the commencement of the SFO investigation in your case, your taking of bribes would have continued. Mr George’s offending was brought to an end by Mr George himself through raising issues with the council.
[114] I find that the appropriate starting point for your bribery convictions is, slightly adjusted from George, three years and six months’ imprisonment.
Starting point — obtaining by deception
[115] I have already referred to the guidance given by the Court of Appeal in Varjan on the assessment of culpability in fraud cases.25 That guidance is also helpful in relation to the obtaining by deception. Benefits were obtained on the Upgrade and Franz Josef Contracts through your failure to disclose your conflict of interest to the Council. That was both your close relationship to the Bansil family and your assisting them to get their bids accepted.
[116] Mr Rapley has referred to three cases for the purpose of comparison, they are R v Palmer, Sarah v R and R v Pakau.26 Each case involved officials exploiting official information. In Palmer the official was engaged in insider trading for his personal benefit (a range of three to four years’ starting point was identified) and in Sarah and Pakau the disclosure was for the benefit of criminals (a three years six months’ starting point was adopted).
[117] Mr Rapley has described your offending as less serious than the offending in those three cases. He submitted that there was no “clear and significant benefit” to you in relation to the Upgrade and Franz Josef Contracts and that the disclosure of
25 R v Varjan, above n 20.
26 R v Palmer CA 332/04, 31 March 2004; Sarah v R [2013] NZCA 446; R v Pakau [2014] NZHC 3020.
confidential information to criminals is inherently more serious than the disclosure of commercially sensitive information to tenderers.
[118] In your case, Mr Goel, it was clear to me from the evidence at trial that you did expect something out of your association with Mr Bansil and TES in relation to the Franz Josef and Upgrade Contracts. The secret exchanges that occurred between you indicated both a team collaboration and an expectation of further business opportunities together.
[119] The fact that your deception offending occurred across two contracts distinguishes it from the one-off situation in Palmer. That said, the fact that the offending was focused on purely commercial outcomes and gains, and did not involve the release of information to criminals, is a matter properly to be taken into account and I do so.
[120] Finally, I also have regard to the starting point adopted in relation to your co-offender Ms Bubna, convicted on a single deception charge relating to the Upgrade Contract, namely two years and eight months’ imprisonment.27 What most distinguishes your case from that of hers is your experience, seniority, your central position of trust, your orchestration of matters in breaching that trust, your greater involvement in the premeditated steps, and your number of offences.
[121] I conclude that a starting point of three years’ imprisonment is appropriate in relation to the deception charges.
Starting point — s 105A (corrupt use of official information)
[122] You, Mr Goel, were found guilty of four charges of corrupt use of official information under s 105A of the Act. One of those related to the RFQ Contract, two to the Franz Josef Contract and one to the Upgrade Contract.
[123] I accept, as Ms Toohey has submitted, that the cases of most assistance in relation to the s 105A charges are Palmer, Nua and Sarah (with starting points of three
27 R v Bubna, above n 1; R v Bubna [2022] NZHC 2525 (sentence indication) at [35].
and a half to over five years).28 The considerations that inform the assessment of your culpability on the corruption charges involving bribery are equally relevant to the corrupt use of official information. In the context of the corrupt use of information in the Council’s tender exercises, account must also be taken of the fact that it was in the tender exercises that serious and continuing harm was caused to other tenderers.
[124] I consider the appropriate starting point for the s 105A charges is three years’ imprisonment.
Totality
[125] The reality is that from the time you began your offending in September 2015 to the last events in February 2017 there was a close relationship between all your offending.
[126] Counsel have responsibly accepted different aspects of your offending call for additional periods of imprisonment. But I am required then to not impose a total period of imprisonment wholly out of proportion to the gravity of the overall offending.29
[127] I will approach the additional periods of imprisonment, that is additional to the bribery charges, by uplifting from the bribery sentence.
[128] I find the appropriate uplift to the starting point on my assessment is an uplift of five months’ imprisonment in relation to the s 105A charges and an uplift of five months’ imprisonment in relation to the deception charges.
Adjusted starting point
[129] The adjusted starting point is accordingly four years and four months’ imprisonment.
28 R v Palmer, above n 26; Sarah v R, above n 26; R v Nua, above n 8.
29 Above n 6, s 85.
Personal aggravating
[130]The Crown does not suggest there are any aggravating features personal to you.
Personal mitigating features
[131] Mr Rapley has submitted that I should discount the starting point sentence for you, Mr Goel, in the following ways:
(a)for your previous good character — 15 per cent;
(b)for your personal circumstances, identified in the s 27 report, Dr Ahmad’s report and your character references — 15 per cent;
(c)your dependant children (to mitigate the effect of sentencing on your children) — 15 per cent;
(d)undue delay in the investigation and prosecution — one to two months’ imprisonment; and
(e)the disproportionately severe impact of imprisonment — five per cent.
[132] Mr Rapley based those matters on the reports and materials to which I have referred and have considered in all their detail. Mr Rapley referred also to instances where similar discounts have been found warranted.
[133] For her part, Ms Toohey addressed particularly the submission that there should be a discount for previous good character. She referred to the Court of Appeal’s observation in R v Zhang:30
Any concession to be gained by reason of a previously unblemished record … was dispelled by the prolonged and premeditated nature of the offending in this case.
Those observations apply to you.
30 R v Zhang [2004] BCL 624, (2004) 20 CRNZ 915 at [26].
[134] My conclusion on the appropriate discounts for mitigating personal factors is as follows:
(a)you are entitled to some credit for your previous good character. That entitlement for previous good character is significantly diminished on account of the extended nature of your offending — I will allow a credit of five per cent;
(b)Mr Rapley has referred, by way of your personal circumstances, to the pressures you were under in your personal life in Hokitika, isolated culturally, suggesting you may have been more vulnerable to sophisticated business people such as Mr Bansil. I have no basis on the evidence for treating you as other than an independently-minded participant in all your offending — I allow no discount for what Mr Rapley has called the “personal circumstances”. I do not find anything in the cultural report that establishes the degree of causal link between your background and the offending as would justify a discount on that basis;
(c)the situation of your dependant children requires addressing by way of limiting the impact of your imprisonment upon them. The observations of the Supreme Court in Philip v R in relation to mitigating the effect of sentencing on children apply here31 — I will allow a 10 per cent discount in this regard;
(d)the investigation of this case and the subsequent prosecution which have taken place over an extended period. To a great extent that is a product of the secrecy and care with which the bribery was carried out, but you do not bear responsibility for a significant portion of the time taken to trial. In any event, the focus of the Supreme Court’s decision in Williams v R, to which Mr Rapley referred, is on undue delay (emphasis added).32 As I do not consider this case has reached that
31 Philip v R [2022] NZSC 149.
32 Williams v R [2009] NZSC 41; [2009] 2 NZLR 750.
threshold, I will not provide an additional discount for that period of delay;
(e)Mr Rapley sought a further discount on the basis that imprisonment will be disproportionately severe for you, having regard to your health issues, your separation from your children and your indication that you have already been bullied in jail by gang members and abused with racial slurs. You have said, Mr Goel, that Corrections’ staff have indicated they cannot offer programmes or courses for your type of offending. As I view it, the difficulty with the concept of rehabilitation in your case stems largely from the fact that you continue to deny you have committed any crimes. In relation to the other matters raised, your separation from your children is properly to be taken into account in the discount I am providing. The other matters do not reach a threshold to justify further discount.
Outcome
[135] From the starting point of four years and four months’ imprisonment, I am therefore providing a discount of a total of 15 per cent (five per cent for previous good character and 10 per cent on account of your children’s situation). That equals eight months. That produces an end sentence of three years and eight months’ imprisonment.
Mr Singh
Starting point – bribery
[136] Mr Lange has not submitted that a distinction should be drawn between you and Mr Goel by reference to the fact that Mr Goel was the official who received the bribes. Such a distinction was considered by the Court of Appeal in Borlase.33 That was because the trial Judge had drawn a “marginal” difference (of six months) between
33 R v Borlase, above n 8 at [38].
Mr Borlase and Mr Noone. The Court of Appeal, however, observed that “there was little to distinguish between them”.34
[137] Having heard the evidence, I am not satisfied that there is a proper distinction to be drawn between you and Mr Goel in terms of culpability on the bribery charges.
[138] In my discussion of Mr Goel’s sentence, I had taken into account the cases referred to and submissions made by Mr Lange on your behalf. Mr Lange submitted that your offending should not be viewed as an “on the payroll” case on the basis that your acquittal of one charge of bribery indicated the jury did not consider there was a promise or bargain in place. I do not interpret the jury’s verdict in that way — rather, the verdict reflects the fact that for one particular month (January 2017), the evidence of cash withdrawals and travel timing did not clearly establish that the payment was made.
[139] The appropriate starting point in relation to your bribery convictions is the same as Mr Goel’s, three years and six months’ imprisonment.
Starting point – obtaining by deception
[140] Your single conviction for obtaining by deception related solely to the Upgrade Contract where you were assisting TES with otherwise legitimate activities such as the arrangement of insurance. Your conviction arose because in doing so you assisted Mr Goel to omit to disclose his conflict of interest. I agree with Mr Lange’s understanding of the verdict, that the jury must have found that in some instances you were aware you were dealing with Mr Goel and not Mr Bansil.
[141] I have regard for consistency to the sentencing of your co-offender, Ms Bubna, whose starting point was two years and eight months’ imprisonment. While you had different roles in the TES bid for the Upgrade Contract and Ms Bubna became integral to the prospect of TES succeeding, you came to those events from late 2016 against a background where you were continuing to pay bribes to Mr Goel as a corrupt official.
34 At [38].
[142] I view the level of culpability of yourself and Ms Bubna as equivalent. The appropriate starting point for your single deception conviction is two years and eight months’ imprisonment.
Totality
[143] On a totality basis, I consider the additional deception conviction requires a three-month uplift on the starting point of three years and six months. The total adjusted starting point in relation to your bribery and deception charges is therefore three years and nine months’ imprisonment.
Starting point — obstruction
[144] Mr Lange did not suggest a starting point sentence in relation to your nine obstruction convictions. He noted that once the jury found you guilty of bribery, it followed the jury would reject your explanation for the cash withdrawals. Mr Lange submitted, given the interconnection between the bribery and obstruction charges, I should simply impose a concurrent sentence on the two sets.
[145] For the reasons I have earlier touched on, the distinct nature of the charges of obstruction requires a distinct, cumulative sentence. Your false explanations were carefully assembled and put to the SFO in what must have been your deliberate endeavour to escape accountability for your earlier offending.
[146]With the maximum penalty of 12 months’ imprisonment or a fine not exceeding
$15,000 on each charge, the appropriate (cumulative) sentence for your obstruction offending is five months’ imprisonment.
Personal aggravating features
[147] The Crown in your case, Mr Singh, accepted there were no aggravating features personal to you to be taken into account.
Personal mitigating features
[148] Mr Lange submitted there are three matters that should lead to a reduction of your starting point sentence, namely:
(a)your previous good character (referring to cases in which three months’ credit has been given for good character);35
(b)the delays through the investigation and prosecution of the charges against you; and
(c)the disproportionate severity of imprisonment.
[149] As with Mr Goel, I recognise that a discount on account of your previous good character is appropriate. You are now 62 years of age and your references speak to a significant level of voluntary contribution made in your professional life. I recognise that your career — as with Mr Goel’s — especially in the public sector is almost certainly over. Having regard to the period over which your offending occurred, I consider a discount of 7.5 per cent appropriate on account of your previous good character.
[150] As with Mr Goel, I do not consider a discount appropriate on account of the delay in the investigation and the prosecution. Your own discrete criminal behaviour, after the bribery offending had finished, significantly contributed to the time of the investigation.
[151] The final point of discount suggested by Mr Lange relates to the effect of imprisonment upon you. Mr Lange referred first to the likely distance between you and your family in Auckland. He referred secondly to the claustrophobia you report suffering. While those might be considered marginal matters in terms of discount, I am satisfied it is appropriate that there be a further discount of five per cent in that regard.
35 R v Rose [2016] NZHC 1109 (three months or 11.5 per cent); R v Borlase, above n 8 (three months).
Outcome
[152] From the starting point sentence of three years and nine months’ imprisonment on the bribery and deception charges, I therefore deduct six months (representing a discount of 12.5 per cent) to arrive at a sentence of three years and three months’ imprisonment. I similarly discount the starting point sentence of five months on the obstruction charges by 12.5 per cent to arrive at a sentence of four months’ imprisonment.
[153] In your case, for the reasons I have stated, the sentence on the obstruction charges will be served in addition to the sentence on the other charges.
[154] The total sentence will therefore be one of three years and seven months’ imprisonment.
Sentence
[155]Mr Goel and Mr Singh, would you please now stand.
[156]Mr Goel:
(a)in respect of Charges 1 to 13 and Charge 15, I sentence you to three years and eight months’ imprisonment;
(b)in respect of Charges 31, 34, 35 and 37, I sentence you to two years and five months’ imprisonment; and
(c)in respect of Charges 33 and 36, I sentence you to two years and five months’ imprisonment.
[157] All of the above sentences are to be served concurrently. In other words, the total sentence I have imposed on you is three years and eight months’ imprisonment.
[158]Mr Singh:
(a)in respect of Charges 16 to 28 and 30, I sentence you to three years and three months’ imprisonment; and
(b)in respect of Charge 38, I sentence you to two years and four months’ imprisonment.
[159] Those sentences are to be served concurrently. In other words, the total sentence on those charges is one of three years and three months’ imprisonment.
[160] In addition, I sentence you in respect of Charges 40 to 48 to four months’ imprisonment.
[161] The sentence of four months’ imprisonment is to be served cumulatively, that is on top of the sentence of three years and three months’ imprisonment, meaning that your total sentence is one of three years and seven months’ imprisonment.
[162]You may be seated for a moment.
[163] To the extent I have referred in the course of these sentencing remarks to matters relating to the health or personal qualities of Mr Goel’s former wives, there is an order permanently suppressing that information. The relevant aspects of that information will be redacted in my sentencing notes when they issue.
Osborne J
Counsel:
A M Toohey and S J O’Brien for Crown J R Rapley KC, Christchurch
C J Lange, Barrister, Christchurch
Copy to: Serious Fraud Office, Auckland
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