R v Perera
[2024] NZHC 3779
•10 December 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2022-085-002285
[2024] NZHC 3779
THE KING v
JANIK SHAYAN JEROME PERERA
Hearing: 10 December 2024 Counsel:
M Story for Crown
O Cross for Defendant
Sentencing:
10 December 2024
SENTENCING REMARKS OF GRAU J
[1] Janik Perera appears for sentencing today, having pleaded guilty to one representative charge of receiving (over $1,000).1
[2] Mr Perera is aged 32 and has no previous convictions. He applies for a discharge without conviction under ss 106 and 107 of the Sentencing Act 2002 on the basis that the consequences of a conviction for him, to his employment and to his immigration status, are out of all proportion to the gravity of his offending.
[3] The Crown opposes a discharge, arguing that the disproportionality test in s 107 is not met. The Crown says Mr Perera should be convicted and sentenced to community detention and community work for his role in the offending.
1 Crimes Act 1961, ss 246 and 247(a), maximum penalty seven years’ imprisonment.
R v PERERA (SENTENCING) [2024] NZHC 3779 [10 December 2024]
The offending
[4] Mr Perera’s offending was detected as a result of a Police operation in 2022 that targeted a very large-scale receiving operation in the Wellington area. This criminal enterprise was run by Mr Soon. Mr Soon was Mr Perera’s landlord. Last month Mr Soon was sentenced to three years and 10 months’ imprisonment for his leading role.2
[5] Police obtained Mr Soon’s telecommunications information and conducted surveillance on him. The operation ended after multiple search warrants were executed at properties Mr Soon and his wife owned and at storage units at different locations. Six defendants were charged.
[6] Mr Soon would be contacted by people offering him stolen goods. He would also give people lists of goods that he wanted, so those items might be stolen or shoplifted to order. The participants would sell illegally obtained property on Mr Soon’s behalf. Police recovered property to a value of just short of $3 million.
[7] Mr Perera and his partner lived at the house of Mr Soon and Mr Soon’s wife, Ms Eng, during this operation. Mr Perera’s involvement included renting two storage facilities in his own name. Storage facilities were needed because of the volume of stolen property that Mr Soon was receiving. The garage at Mr Soon’s address was also used for the storage of stolen property and a large quantity of stolen property was found there when the Police searched Mr Soon’s property.
[8] Mr Perera sold stolen property on behalf of Mr Soon on Facebook Marketplace. He was given items to be on-sold. Items were stored in his bedroom. Mr Perera used his own Facebook account to sell four nail guns, one tool set, one gaming keyboard, four sets of headphones, and a gaming console. The retail price of these items is said to be $10,155.
[9] When Police searched Mr Soon’s address, they found three stolen cameras in Mr Perera’s bedroom valued at $5,829.
2 R v Soon [2024] NZHC 3393.
[10] The communications that Police obtained between Mr Perera and Mr Soon set out discussions about storage needs, and the sale of property.
Sentence starting point
[11] There is no guideline decision for the charge of receiving because circumstances can vary so widely. In assessing culpability, the Court considers the value of the stolen goods, the duration of the offending, the number of charges, whether there is a commercial element to the offending, and the closeness of the relationship between the person who stole the goods and the receiver.3
[12] The Crown has referred the Court to a number of decisions for the sentence indications of co-defendants. Starting points have ranged from two-and-a-half to six- and-a-half years’ imprisonment.
[13] Another co-defendant who has had a sentence indication that he has accepted, is Mr Dutt. His starting point was assessed at two years and five months’ imprisonment. There is Ms Toki who I will sentence this morning as well. She accepted a sentence indication with a starting point of four years’ imprisonment. Mr Youkhana, another defendant in this operation, was sentenced on the basis of his role as one of the most significant providers of stolen property to Mr Soon. He sold property or provided property with a retail value over $100,000, and his starting point was four years and three months’ imprisonment.
[14] The Crown says here that there are similarities between Mr Perera’s role and Mr Dutt’s role. Both were living at the hub of Mr Soon’s operation, and each sold stolen property on Mr Soon’s behalf. Neither directly benefitted from the sales they made.
[15] Justice Radich assessed Mr Dutt’s culpability as being mid-range, acting as an assistant or worker for Mr Soon. Mr Dutt sold roughly $15,000 worth of property online. He also advised Mr Soon about the re-sale value of stolen property, and he transported stolen items to storage locations.
3 R v Tua [2014] NZHC 3049, at [15].
[16] The Crown accepts Mr Perera’s culpability is lower than Mr Dutt’s, when Mr Dutt faced more charges relating to transporting the property. But the Crown says Mr Perera’s culpability is also mid-range because he directly facilitated the receiving operation to make a profit and he had ongoing involvement between July and October 2022. The Crown says that a starting point in the region of two years’ imprisonment is appropriate to reflect Mr Perera’s role.
[17] I agree with the Crown that Mr Perera’s role was similar to Mr Dutt’s but slightly lesser. He sold a lower value of property and was not involved in the transportation. He was nevertheless an active participant. His role was ongoing for around three months in a significant commercial operation, ensuring that Mr Soon could financially benefit from the sale of stolen property.
[18] I say here that I am unable to accept Mr Perera’s explanation that he did not know the property was stolen, and he was just helping an older person with technology. It is said for him that he was trusting and naïve, and that he was only reckless at best. But I have to say I consider Mr Perera’s explanation is simply implausible—even fanciful—given the nature of the communications I have seen. They demonstrate his knowledge of stolen goods, his knowledge of the wider receiving operation, and even including a lie by way of an explanation to a potential online purchaser about the reason for a lack of a receipt for a stolen PlayStation he was selling, which he explained away as a birthday gift.
[19] There is also a text message between Mr Dutt and Mr Perera where they are discussing items of stolen property, asking where they are and referring to the garage. Clearly Mr Perera knew there was stolen property all over the house. The house and the garage was full of it. Mr Dutt, the co-offender, was also living there, also dealing in stolen property.
[20] When I assess those matters and compare Mr Perera’s offending with Mr Dutt’s, I would set a starting point for sentence of 22 months’ imprisonment.
Application for discharge
[21] First, I need to consider the application for a discharge without conviction. It is a well settled three-step process. The Court determines the gravity of the offending by considering all of the aggravating and mitigating features of the offence and the offender.
[22] Next, the Court identifies the direct and indirect consequences of conviction. There must be a real and appreciable risk that the identified consequences will occur. The nature, seriousness and degree of likelihood of the identified consequences is material.
[23] The third step is to evaluate whether these consequences are out of all proportion to the gravity of the offending. If the Court decides they are out of all proportion then the Court must still consider whether to grant a discharge without conviction.4
[24] Turning to the first step. I have already set out the aggravating factors that apply to Mr Perera’s offending, and it is acknowledged for Mr Perera that at first glance the gravity is moderate to high, given the large scale of the operation, and when a receiver forms a crucial part in the chain of criminal activity involving stolen goods.
[25] As I have said, this offending was ongoing over three months and I consider Mr Perera provided significant assistance to Mr Soon to enable him to sell stolen goods and profit by that. I do not accept he was unaware the goods were stolen. As I have already said, that is simply implausible.
[26] There are personal mitigating factors that reduce the gravity of the offending. The first is that Mr Perera promptly pleaded guilty. Even though it was close to trial, it was when the Crown offered a plea arrangement. The second is that Mr Perera has no previous criminal convictions.
4 Prasad v R [2018] NZCA 537, at [11], R v Hughes [2008] NZCA 546, at [82], and D v R [2024]
NZCA 297, at [9].
[27] I would accept that Mr Perera has been a hardworking immigrant to New Zealand during which time he has gained residency here. It is submitted for him that he has made a positive impact on New Zealand society. I have seen no evidence to support that however, beyond Mr Perera’s self-report. And I need to take into account that this was ongoing offending over around three months. Nor have I seen any post-guilty plea conduct by Mr Perera such as Courts regularly see in support of such applications, for example, by undertaking voluntary community work and giving something back to the community to put things right as far as can be done.
[28] As I have said, I am not able to accept Mr Perera was just helping out his landlord. Nor do I accept that Mr Perera has shown genuine remorse beyond being regretful for the situation he has found himself in.
[29] I would agree with the Crown that the mitigating factors that apply to Mr Perera do not mitigate his offending to the extent that is submitted on his behalf. I agree with the Crown that the gravity of the offending is at the moderately serious level.
[30] Turning to assess the consequences of a conviction, the two consequences to Mr Perera are first to his employment, and secondly, to his immigration status.
[31] In terms of employment, Mr Perera has explained that he is currently employed as a customer service banker and has passed promotional requirements to become a lending banker. Beyond that, I have no information about what either job entails. Mr Perera has not told his employer about his charge because he does not want to put his employment at risk. I consider Mr Perera’s concern that the offending, and the conviction, could jeopardise his employment. It is a reasonable concern, in my view, for a person in a banking role. I would assume that there is a level of trust involved in his job, for example, by access to customer accounts, or at least to personal financial information. And I can readily imagine a major bank would be concerned about a person with a dishonesty conviction in a role that involves a relationship with customers who are entrusting their finances to the bank.
[32] But I have no information whatsoever that would tell me whether Mr Perera would possibly lose his current job, or not get promoted as he would like to do, or whether there would be a certainty of loss of employment. I do not have information that would enable me to conclude it would bar him from working in this industry, particularly if, as he says, he has worked hard to establish himself. I also note here that in the evitable event this sentencing is reported in the media, and his employer becomes aware of the offending, then any consequence to his employment will be more as a result of the offending itself rather than whether Mr Perera receives a conviction or not. The short point is that I accept there is a real and appreciable risk of an adverse consequence to employment, but beyond that I do have any information as to what those likely consequences may be.
[33] The second consequence to Mr Perera is to his immigration status. He is a permanent resident of New Zealand since his permanent resident visa was granted in 2019. Because he had been a permanent resident for less than five years at the time of the offending, a conviction makes him liable for deportation, pursuant to s 161 of the Immigration Act 2009.
[34] An affidavit from an immigration lawyer, Mr Huang, has been filed in support of Mr Perera’s application for a discharge. Mr Huang considers there is a good chance that Mr Perera’s potential liability for deportation will be raised. He considers there are positive factors for Mr Perera, given that he has lived in New Zealand since first approval in 2015, has seven years of work experience, is married to a permanent resident visa holder, and, as Mr Huang understands, has met the requirement to apply for citizenship. He also says that the negative factors would be considered, including the seriousness of the conviction which includes the sentence actually imposed, as well as any information that would indicate any likelihood of reoffending.
[35] Mr Huang says that, considering both positive and negative factors, a conviction would lead to what he calls a “balanced probability” that Mr Perera’s circumstances would be considered sufficiently compelling to stop the deportation process. He does go on to say that this is a highly discretionary consideration and it is by no means certain a decision of this nature would be reached. Based on that,
Mr Cross, for Mr Perera, says that this shows there is a very real and appreciable risk of deportation for Mr Perera.
[36] Mr Huang, though, goes on to say that, even if the deportation process did not continue, it would be rare to cancel deportation liability. Instead the result would most likely be a suspension of deportation liability for a period not exceeding five years. Mr Huang outlines the process of appeals against the issue of a deportation liability notice. He considers it would be less likely for Mr Perera to be able to successfully demonstrate circumstances that would meet a threshold of exceptional circumstances of a humanitarian nature that would make deportation unjust or unduly harsh.
[37] The Crown has also filed evidence about immigration consequences from an employee of MBIE involved in the Immigrations Resolutions team. That team provides decision-makers with information and analysis to help inform their decisions about deportation liability. It is similar information to the affidavit filed for Mr Perera.
[38] This affidavit makes the point that there is no automatic deportation that flows from a conviction for an offence. Mr Perera will become liable for deportation on conviction, but that does not mean he will be deported.
[39] It is also said that consideration will always be given as to whether a residence class visa holder will be deported. There is an absolute discretion for the decision- maker to decide whether deportation will proceed and whether to sign a liability notice, or whether to suspend deportation liability for up to five years subject to conditions such as not committing any further offences, or to cancel deportation liability.
[40]The Supreme Court considered this issue in the leading case Bolea v R.5
[41] Our view is that where, as here, there is unchallenged evidence that the issue of a deportation liability notice will “almost certainly” occur, then (in the absence of other evidence) both the liability for deportation and the risk of actual deportation should be treated as consequences of conviction under s 107. It follows that we do not agree that, for persons in Ms Bolea’s position, the process followed by the immigration authorities means that the “usual”
5 Bolea v R [2024] NZSC 46, at [41].
position is that the prospect of deportation will be a consequence of the offending rather than the conviction.
[41] The Court did not agree with the Court below that the prospect of deportation will be a consequence of the offender rather than conviction. It considered that a risk of deportation was a consequence of conviction.
[42] The Court of Appeal has only last week considered immigration consequences for an offender who appealed against a decision to decline a discharge. The offending in that case was likewise moderately serious, and like Mr Perera the appellant had a resident visa and faced the prospect of a deportation liability notice. Deportation would have potentially resulted in the appellant’s family unit being split up, with her partner and young son staying in New Zealand, and her returning to Brazil which she had said she would find difficult.6
[43] The Court noted the liability for deportation, but also that there was a potential for suspension for five years. The Court said that would be an entirely proportionate consequence. There was insufficient information to assess the effects if deportation occurred, and the Court discounted the balance of concerns about the appellant returning to her home country. It was a return to a familiar country, although less desirable, but where there were family connections.
[44] I find in this case the evidence does establish that a risk of deportation will arise. But it is also the case that the evidence suggests Mr Perera’s positive circumstances have a good likelihood of stopping or suspending the deportation process, and on suspension of deportation, Mr Perera would have a lengthy opportunity to demonstrate that he is a person who should not be deported. I consider that would be a proportionate response.
[45] I note too that the circumstances for Mr Perera as to the consequences of deportation are less compelling than the cases I have referred to. For example, in the Bolea case, deportation would result in the separation of family and inability to meet
6 De Souza v R [2024] NZCA 637.
in another country because both the appellant and the father of her child have convictions.
[46] As in the Court of Appeal case I have referred to, if Mr Perera was eventually deported, he would be returning to a familiar country. Although it is where he would rather not be, he has family connections there and I have seen no evidence of any particular hardship that would be caused.
[47] Accordingly, I do not find that the immigration consequences in this case are out of all proportion to the gravity of the offending. The short point is that deportation is a possibility, but I consider it is far from inevitable.
[48] My assessment is therefore that, while there is a real and appreciable risk of adverse immigration consequences, and potentially of employment consequences, both consequences, on the current information, are still somewhat at a speculative level. When the gravity of the offending is moderately serious, or at best reduced to moderate, I do not consider that exposure to these risks can be said to be out of all proportion to the gravity of the offending.
[49] Therefore, I decline the application for discharge, and I turn to consider sentence.
Sentence
[50] I have seen the pre-sentence report. It recommends community work, on the basis of holding Mr Perera to account for his offending and to allow him to give back to the community. Community detention is also available.
[51] The pre-sentence report assesses Mr Perera as a low risk of reoffending due to not having any previous criminal history and his remorse. As I have said, I do not accept Mr Perera shows significant remorse, and I am not impressed by his efforts to downplay his role in this offending.
[52] I have assessed a starting point of 22 months’ imprisonment. Mr Perera would be entitled to a reduction of 25 per cent for pleading guilty. I consider a further
reduction of 10 per cent is available to reflect Mr Perera’s lack of previous convictions. I decline to apply a discount for remorse. Those reductions take eight months (which is rounded up) off the starting point, leading to an end sentence of 14 months’ imprisonment, which is at a level where alternatives to imprisonment can be considered.
[53] In my view, a sentence of community detention and community work, as recommended in the pre-sentence report, is the appropriate sentence in this case. It will hold Mr Perera to account for his offending. He will also be able to give something back to the community—a significant number of whom have been harmed by the wider offending in this case, and a number who have been harmed by Mr Perera’s involvement in it. In my view, this is the least restrictive outcome that is appropriate in the circumstances.
[54]The sentence will therefore be:
(a)three months of community detention with a curfew from 8pm to 6am daily, to be served at the address set out in the pre-sentence report. The first curfew will be today; and
(b)50 hours of community work.
Grau J
Solicitors:
Crown Solicitor, Wellington
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