R v Kurisi - [2017] NZHC 62

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 Kurisi

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kurisi

Details

AGLC: R v Kurisi [2017] NZHC 62
Case: [2017] NZHC 62
Decision Date: 2 February 2017

CaseChat Overview and Summary

Jafar Kurisi was sentenced for his involvement in exploiting foreign workers in New Zealand. He pleaded guilty to charges involving aiding and abetting people to breach visa conditions, aiding and abetting unlawful presence in New Zealand, and exploiting employees by failing to pay wages and minimum wage. The court had to determine the appropriate sentence, taking into account the objectives of denunciation, accountability, and deterrence, as well as various aggravating and mitigating factors. The court established a starting point of three years and six months imprisonment, considering factors such as inhumane treatment of victims, the commercial nature of the offending, and breaches of immigration law. The court then applied various mitigating factors, such as an offer of reparation, the defendant's medical condition, and his prior good character, which resulted in a total credit of one year and six months. The defendant also received a credit of six months for his early guilty pleas. Considering the reparation offer and the defendant's medical condition, the court commuted the sentence to 12 months of home detention, to be served concurrently on each charge.

The final orders included a term of home detention of 12 months for each charge, to be served concurrently, and a suppression of the defendant's address. The defendant was also ordered to pay reparation in the sum of $55,000 to the victims, with a deadline of 31 March 2017. The reparation amount would be adjusted if the defendant could provide evidence of a $10,000 payment made to one of the victims. The court also imposed various conditions on the defendant during and after the home detention period, including restrictions on contact with the victims and reporting requirements to a probation officer.

Orders