R v Kurisi
[2017] NZHC 62
•2 February 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2015-092-6886 [2017] NZHC 62
THE QUEEN
v
JAFAR KURISI
Hearing: 2 February 2017 (at Tauranga) Counsel:
L Clancy for Crown
M S Sahu Khan for Mr KurisiJudgment:
2 February 2017
SENTENCING NOTES OF HEATH J
Solicitors:
Crown Solicitor, Manukau
Counsel:M S Sahu Khan, Auckland
R v KURISI [2017] NZHC 62 [2 February 2017]
Introduction
[1] Mr Kurisi may remain seated until I ask him to stand. Madam interpreter, if you could indicate to Mr Kurisi that what I am about to say will be transcribed and will be made available to him as soon as possible after sentencing this morning.
[2] Jafar Kurisi, you appear for sentence on charges involving the exploitation of foreign workers, in New Zealand. You pleaded guilty to the charges after a sentencing indication given on 15 July 2016.1 You will be sentenced on the basis of the summary of facts on which those pleas were entered.
[3] You pleaded guilty to four representative charges involving aiding and abetting people to breach conditions of their visas;2 aiding and abetting people to remain unlawfully in New Zealand;3 exploitation of employees by failing to pay moneys due to them under the Holidays Act 2003;4 and exploitation of employees by failing to pay the minimum wage due under the Minimum Wage Act 1993.5
[4] The maximum penalty for each of the charges to which you pleaded guilty is one of seven years imprisonment, and/or a fine of $100,000. I take the exploitation charges as the lead offences for sentencing purposes.
Background
[5] Your offending is directly linked to that of Mr Faroz Ali, who was found guilty after a jury trial in Auckland in October 2016, of trafficking foreign workers from Fiji and exploiting them in New Zealand. Mr Ali was sentenced on 15
December 2016, having pleaded guilty or found guilty by a jury on 57 charges.
[6] Primarily because of the extent of his involvement in trafficking, Mr Ali was sentenced to an effective term of imprisonment of nine years and six months. Your
situation is different. I emphasise that you have no criminal culpability in Mr Ali’s
1 R v Kurisi [2016] NZHC 1605.
2 Immigration Act 2009, s 343(1)(a).
3 Ibid.
4 Ibid, s 351(1)(a)(i).
5 Ibid, s 351(1)(a)(ii).
involvement in trafficking human beings. Your crime is limited to the exploitation of those people who were trafficked, and others.
[7] Until your guilty pleas were entered, it was intended that you stand trial together with Mr Ali. Your sentencing was deferred from July 2016 to await the outcome of Mr Ali’s trial. You too were to be sentenced on 15 December 2016. However, you were admitted to hospital in Tauranga earlier that day, as a result of problems arising out of a pre-existing heart condition. That is why your sentencing was deferred until today, in Tauranga. In some ways, this city is a more appropriate place for me to pass sentence on you, as your offending occurred in the Bay of Plenty.
[8] I do not need to explain the circumstances in which some of the victims of your offending were trafficked from Fiji. For anyone interested by way of background, they are set out fully in the remarks that I made in open Court when sentencing Mr Ali.6
Facts
[9] At material times, you operated a business as a fruit farm labour contractor based in Tauranga. Your company employed workers to carry out manual work in the horticulture industry. It would then contract with individual orchard owners to supply that labour force to them, particularly for seasonal work in the kiwifruit industry.
[10] Between December 2011 and November 2014, you employed a number of workers whom you knew were not lawfully entitled to work in New Zealand. They were not paid minimum entitlements under either the Holidays Act 2003 or the Minimum Wage Act 1983. The accommodation and food that you provided was of a very poor standard. An example is the accommodation in which three women and
one man from Fiji stayed, near Pye’s Pa.
6 R v Ali [2016] NZHC 3077.
[11] Suliana Vetanivula was one of the victims who stayed in the Pye’s Pa accommodation, and who worked in the Bay of Plenty area on a kiwifruit orchard. It is important that I explain the circumstances in which she came to work for you, and her conditions of employment. In doing so, I emphasise again that you were not complicit in the trafficking arrangements.
[12] Ms Vetanivula saw an advertisement in the Fijian Sun newspaper for a fruit picking job. She went to the travel agency that placed the advertisement, and over the course of her interaction with a principal of that firm, paid up to $FJD3,000 in order to travel to New Zealand. She was promised that she would be paid $NZD17 per hour in wages; that when she arrived in New Zealand there would be accommodation at a hotel on the first night, with dinner provided and then the first week of food and rent would be met; the work would be picking kiwifruit, and that she would get a work permit when she arrived in New Zealand. To provide some context to the amount offered to Ms Vetanivula by way of wages in New Zealand, her husband earned around $FJD200 per week.
[13] On arrival Ms Vetanivula and three fellow travellers were met by Mr Ali and an associate at the airport. She stayed at the Budget Travellers’ Inn, near Auckland Airport, with three other victims, two females and one male. They were there for one night before travelling to Tauranga.
[14] You arranged for Ms Vetanivula and her co-workers to undertake kiwifruit vine pruning near Te Puke. A much more physically demanding task than picking fruit. You arranged for them to stay at the Pye’s Pa property. The accommodation arrangements were shamefully poor. Ms Vetanivula and her two female companions were married women. They were told that they would be staying in the basement of the Pye’s Pa property with other people. There was no bedding to speak of, and only one mattress was available. This, in July 2014, in the midst of a New Zealand winter, must have been extremely cold for people travelling from the tropical warmth of Fiji.
[15] In another indignity, the three married Fijian women were required to sleep in the same room as the male. There was little in the way of privacy. The evidence I
heard at Mr Ali’s trial was that the man turned towards the wall of the room when asked, if one or more of the females were dressing or undressing to give them as much privacy as possible. The need for the three women to sleep in the same room as the male was embarrassing and stressful, as well as culturally inappropriate.
[16] Ms Vetanivula had to pay for her own meals. She was also required to pay for accommodation and her transport to and from the orchard. These costs were deducted from her wages. Further, the wages were calculated not on an hourly basis but according to the number of bays that she had pruned at the orchard.
[17] Indeed, on your calculations, Ms Vetanivula owed you money. During the entire period she worked she was paid approximately $NZD75 in cash in total. That was for about three weeks work.
[18] Ms Vetanivula spoke to a lady from Tauranga at a church one Sunday. She informed her of their circumstances. Police and immigration officials became involved as a result.
[19] Ms Vetanivula stated in her victim impact statement that the whole situation had put a lot of pressure on her and her family, and had been a “nightmare”. She is extremely embarrassed as her whole village believes she has been very foolhardy with money she borrowed from family and friends.
[20] Overall, six of the workers whom you employed had been recruited from Fiji. You were aware that they had paid money to arrange travel to New Zealand. You were aware of Mr Ali’s involvement in the recruitment scheme.
[21] The Fijian nationals whom you employed through Mr Ali can be divided into two groups:
(a) The first consists of four workers. These are the three women and one man to whom I have already referred. They worked for between three and five weeks.
(b)The second group consisted of two females who had also paid significant sums in Fiji. You arranged for them to work in Tauranga, on the same basis as the first group.
[22] The third and fourth groups were not associated with the enterprise in which
Mr Ali was involved.
[23] The third group consisted of two females from Argentina and two males from Brazil, each of whom were travelling in New Zealand on visitor’s visas. The four of them met while travelling on a bus to Te Puke in early 2014. The Argentine tourists advised they were going to try and find work picking fruit. The Brazilian tourists decided to join them. You were aware that all were in New Zealand unlawfully, yet found them work picking kiwifruit in orchards.
[24] This group was also accommodated at the Pye’s Pa property. Each paid
$NZD90 for accommodation, was required to buy his or her own food, worked picking kiwifruit for two to three days a week totalling 18 to 20 hours, for about
$NZD200 in cash each Friday. The rent of $NZD90 was paid to the landlord of the Pye’s Pa property out of that money, as was $NZD5 each per day for transport to and from the kiwifruit farms. That was paid to you.
[25] The fourth group consisted of three people, two from India and one from Sri Lanka. They were all employed in the horticulture industry for various periods between November 2011 and November 2014. You knew that each of them was either unlawfully in New Zealand, or held a visa that did not entitle him or her to work. They were exploited in the same manner as the other employees to whom I have referred.
Analysis
[26] In sentencing you, I have regard to the sentencing goals identified in the Sentencing Act 2002. Undoubtedly, in the context of this case, the most significant objectives are denunciation of your conduct, holding you accountable for your actions and deterring others from offending in this way. Deterrence is particularly important for crimes of this type.
[27] My approach is to determine a starting point that reflects the culpability of your offending, in light of the maximum penalties available for each offence. I shall then identify and provide an uplift for aggravating factors personal to you, and then deduct a credit for mitigating factors.
[28] As I said earlier, the maximum penalty for each of the charges to which you pleaded guilty is one of seven years imprisonment and/or a fine of $100,000. The most serious of the offences is that involving exploitation of workers.
[29] You are a New Zealand citizen. At the relevant time, you were responsible for the management of the company that contracted with orchard owners to provide services from labourers. You organised for people to undertake such tasks as picking fruit and pruning vines.
[30] You have not previously appeared before the Court. You are in a position to pay some reparation. I discuss the extent of that later.
[31] Detailed victim impact statements have been provided from each of the victims. I am satisfied that each suffered significant financial and emotional harm, including embarrassment, shame and humiliation in their local villages, in the case of the Fijians. Some find themselves in substantial debt to families and local communities.
[32] At the sentence indication, I indicated that a starting point would fall between three years and four years imprisonment. I based that view on aggravating factors that included inhumane and degrading treatment to which the victims were subjected, the organised and commercial nature of the offending, and blatant breaches of New Zealand immigration law. Having gained a better appreciation of the context of your role from the evidence given at Mr Ali’s trial, I fix the starting point for sentence at three years and six months imprisonment. I consider that starting point reflects the need for parity in sentencing co-offenders.
[33] You made an offer of reparation. The offer was made shortly after the sentence indication in July 2016. It confirmed in the reparation report I received of 7
September 2016. The amount was $55,000 to be paid in monthly instalments of
$7,000 with the balance to follow. That, in context, is a significant offer for which you are entitled to some credit.
[34] The other mitigating factor of substance is your medical condition. At the time of the sentence indication, I received a certificate that recorded you had had a recent heart operation involving four artery bypasses and the insertion of a stent for others. You had been in hospital with complications from initial surgery, including a chest infection and fluid on the lungs. You needed and, continue to need, a caregiver for 24 hours a day. Your continued need for such care is reflected in a more recent medical report made available for today’s hearing. Those medical problems would undoubtedly make it harder for you to serve a sentence of imprisonment, when compared with able bodied prisoners. Indeed, the extent of your health concerns were emphasised by your admission to hospital in Tauranga on the morning in December when you were scheduled to be sentenced in Auckland.
[35] The two mitigating factors relating to reparation and your medical condition justify a total credit of one year.
[36] You are also entitled to some credit for prior good character. I allow three months for that.
[37] When providing the sentence indication, I said that I would give a credit of
15% for the guilty pleas. I round that to six months imprisonment.
[38] Those calculations mean that the end period of imprisonment would come to one year and nine months. That means that you are eligible to be sentenced to home detention. Ordinarily, this type of offending would demand a sentence of imprisonment, but having regard to the reparation you are to pay and your medical condition, I am prepared to commute that sentence to home detention.
[39] Having said that, I wish to make one thing very clear. My decision to commute to home detention has been made on the basis that the reparation will be paid in accordance with the order that I am about to make. If there were default in
payment of reparation, it would be open to the Crown to seek permission to appeal out of time against the sentence of home detention. Were that to occur, the Court of Appeal will be aware of my own view that, in the absence of reparation a sentence of imprisonment would have been required. In other words, if you do not pay reparation, you are at risk of going to jail.
Result
[40] Mr Kurisi please stand. On each of the four charges you are sentenced to a term of home detention of 12 months. Those terms shall be served concurrently. They shall be served at [suppressed]. I make an order suppressing publication of that address.
[41] After Court, you shall go directly to that address and await the arrival of a probation officer. You shall report to a probation officer as directed. You are not to associate or contact directly, or indirectly, any of the victims of your offending without the prior written approval of a probation officer. Otherwise standard conditions of home detention apply. There will be standard post-detention conditions for six months.
[42] You are ordered to pay reparation in the sum of $55,000. Given the time that has elapsed since the sentence indication, that sum shall be paid in full to the Registrar of the High Court at Auckland on or before 31 March 2017. The reparation payments shall be paid in proportion to the losses that have been suffered by the two Indian and one Sri Lankan victims and, in full in respect of all of the Fijian victims.7
I consider that is an appropriate result given the outcome of reparation orders in
respect of your co-offender, Mr Ali.
[43] Before I set out the basis on which the Registrar shall distribute those
reparation payments, I wish to refer to your counsel’s advice today that a sum of
$10,000 has already been paid to one of the victims, Mr Nausuad Ali, who is in
India.
7 The Crown advised me that there are no losses in respect to which an order should be made for the victims from Argentina and Brazil.
[44] I am surprised that that sum was paid without reference to the Crown or to the Court. It suggests a degree of favouritism that is inappropriate in circumstances such as this. I direct that you file an affidavit on or before 3 March 2017 which outlines the circumstances in which you made the decision to pay the sum of
$10,000, evidence that the sum has in fact been paid and whether it was accepted in full and final settlement of any moneys payable by you. The Crown has leave to respond to that affidavit by memorandum, to be filed and served no less than seven days after receipt of the affidavit. If the Crown agree to reduce the amount of reparation to $45,000 to reflect that, I will be prepared to make that order. If not, a telephone conference should be requested so that I can resolve the precise amount of reparation to be paid. In the absence of the type of evidence to which I have alluded, the reparation sum will remain at $55,000.
[45] Reparation shall be paid by the Registrar to the following victims and in the following sums:
(a) Suliana Vetanivula $5,709.07 (b) Losalini Bisavakauca $4,019.23 (c) Akanisi Qalataki $5,153.64 (d) Ginesh Prasad $5,366.91 (e) Timaima Seru $5,176.21 (f) Alumita Bole $4,163.79
[46] That means that the amount payable to the Fijian victims is $20,588.85. An amount which reflects their actual financial losses.
[47] As to the balance, the sum of $17,785.85 shall be paid to Nausuad Ali;
$4,574 to Raueem Mohammed; and $3,049.00 to Asoku Wijesinghage. In the event that there is proof that $10,000 has been paid to Nausuad Ali, the sum payable to him will reduce to $7,785.85 and the total amount of reparation will be $45,000.
[48] As I did with Mr Ali’s sentencing, I wish to conclude my remarks by offering the community’s thanks to the immigration officials for the quality of the investigation which led to apprehension of both Mr Ali and Mr Kurisi.
[49] Mr Kurisi, the exploitation in which you were engaged was shameful and you are fortunate not to be going to prison.
[50] The charges which were shown on the original Crown Notice are withdrawn, as they have been superseded by the four representative charges to which Mr Kurisi entered guilty pleas.
[51] Mr Kurisi, you may stand down.
P R Heath J