R v Sangha
[2016] NZHC 37
•29 January 2016
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2014-042-001878 [2016] NZHC 37
THE QUEEN
v
JASWINDER SINGH SANGHA KULWANT SINGH
Hearing 29 January 2016 Counsel:
M A O’Donoghue and E J Riddell for Crown
R M Mansfield for J S Sangha
S J Zindel and S M Barclay for K SinghSentence:
29 January 2016
SENTENCING NOTES OF DOBSON J
[1] Kulwant Singh and Jaswinder Singh Sangha, I now have to sentence you both on your 11 convictions for your parts in supplying false information to a refugee status officer. I have to do so on a view of the facts that is consistent with the jury’s verdicts at the end of your trial. Having reflected carefully on all the evidence we heard during the trial, I have a clear view on the factual circumstances that I consider to be relevant to assessing the seriousness of your offending by each of you.
[2] Mr Singh Sangha, I am satisfied that you became involved at the outset of the arrangements to bring the workers from the Punjab to New Zealand, at least in material part because of the prospects for your family to make money from it. With your brothers, Satnam and Jetpal, I am satisfied that you charged the Punjabi
workers substantial amounts of money to get them contracts of employment and
R v SANGHA AND SINGH [2016] NZHC 37 [29 January 2016]
New Zealand work visas. I have reflected on your evidence that you were involved only to help friends and extended family take up an opportunity to come to New Zealand, and that you would never charge for such arrangements. Mr Mansfield has urged that view on me in his present submissions. He has argued that claims of payment of money in India were so closely linked to the claims by the workers that they were deceived about the length of the visas that rejection of the latter proposition by the jury must be taken also to mean rejection of the former. I cannot accept that, and I do accept the essential thrust of many of the complainants that they paid you or members of your immediate family substantial sums in India.
[3] In my view, the jury’s verdicts acquitting you of the people-smuggling charges were correct because the Crown was unable to prove that the workers were deceived into coming to New Zealand by promises that you would get them one and a half to two year work visas. I find the reality to be that many Sikhs of working age in the Punjab are so determined, if not desperate, to obtain lawful entry into western countries that they would pay money and travel, whatever the length of an initial visa was that they had been promised. It follows that the claimed assurances of one and a half to two year work visas were not a material inducement. So, just because you were found not guilty of the people-smuggling charges does not mean that I have to reject the evidence of those workers about you and your family’s demands that they pay substantial amounts for the arrangements made for them.
[4] After the unexpectedly long delay in getting the workers to New Zealand, and their arrival coinciding with the hasty departure of Mana Corp’s then director, Mr Chunduri, the absence of work for the workers left you with a problem. They could only work legitimately if the narrow terms of their work visas were relaxed. Having charged them large amounts for arranging visas, you had to do what you could to enable them to get paid work.
[5] I am satisfied you initiated attempts for all of them to claim refugee status. From your involvement in making the arrangements for the workers to come, and your knowledge of the family circumstances of some of them, it must have been obvious to you that none of them had fled the Punjab fearing of persecution if they
returned. So it must also have been obvious that there was no basis for claiming refugee status when a genuinely held fear of persecution had to exist.
[6] You arranged for the involvement of Kulwant Singh, flying him down from Auckland to Blenheim to draft the personal histories on which the claims for refugee status were to be based. You had previous dealings with Kulwant Singh, including in the context of applications to claim refugee status. Once Kulwant Singh was introduced to the workers, he was the one primarily involved in preparing the individual claims for the workers. That involved creating histories of persecution by the police in the Punjab in a variety of circumstances for each of the workers to justify claims of fears for their safety if they returned to the Punjab.
[7] Kulwant Singh, I am satisfied that you would have been fully aware throughout your involvement that the claimed circumstances of persecution were entirely untrue. Your role was critical in lending a veneer of credibility to those claims, however incredible it was that so many should have arrived together for work purposes and all spontaneously claim on-going persecution.
[8] I am also satisfied that your involvement was motivated by monetary gain. I cannot make a specific finding as to the amount. However, I am satisfied that you demanded amounts from the workers and were paid significant sums, and that you accounted for only part of those sums to Mr Roger Chambers, the Auckland immigration lawyer whom you arranged to represent them.
[9] You were intimately involved in writing up the personal histories for each of the men in the course of your three days’ work during your visit to Blenheim. Some of the men claimed not to have read or understood what you had written in their names, and others accepted that they understood, at least in outline, that you were making false claims for them that they would use as a way of trying to stay in New Zealand.
[10] For sentencing purposes, I treat your involvement as taking the initiative in cooking up those stories, but that the men were happy to go along with the false claims made in their names because they thought it was their best chance of being
able to stay in New Zealand and work for employers other than Mana Corp. I also take into account that, in general terms, the workers would have appreciated that it bought them time, if nothing else, by making the claims for refugee status.
[11] Having completed all the personal statements and filled in the appropriate forms which you provided for all of the men, you collated that paperwork, took it back to Auckland and passed it on to Mr Chambers for his office to file with Immigration New Zealand. After that, you acted as an interpreter in the dealings between Mr Chambers and each of the men when they presented themselves for interviews with officers in the Refugee Status Branch in Auckland, and also when they pursued appeals to the Refugee Status Appeals Authority after all their claims were rejected.
[12] In comparing the parts each of you have played in this fraud, what each of you did was complementary with the other’s role, and they are interdependent. I am mindful that Kulwant Singh has been convicted as a principal, and Mr Singh Sangha as a party to Kulwant Singh’s offending. However, that is not the only indicator of the relative seriousness of the offending by each of you.
[13] Mr Singh Sangha, I treat you as the initiator and I am satisfied you were in a position to influence the workers to participate in preparing and presenting false claims in their names. You brought Kulwant Singh to Blenheim, knowing of his expertise in preparing such claims, and introduced him to the workers, inevitably knowing that the detailed work he would undertake involved creating false claims of persecution of the men in the Punjab. You were in and around the motel in Blenheim for at least part of the time when the stories were created. Some of the workers claimed you contributed. You may not have contributed meaningfully to what was being written, but you clearly knew what was going on.
[14] Kulwant Singh, you were pivotal in drafting and completing the documents that enabled the false claims to be lodged and pursued. Not only were you in a position to compare the made up tales as they were being written with the demeanour and circumstances of the workers sitting next to you, but you wrote the accounts and filled in the forms having experience of the process for seeking refugee
status. You are therefore fixed with knowledge of the circumstances in which the statements would be relied on by a refugee status officer considering them in good faith and undertaking the analysis necessary to process each application. Once all the papers were completed, you provided them to Mr Chambers knowing that his office would forward them to Immigration New Zealand, and the circumstances in which they would then be relied on. I do not accept Mr Zindel’s submission that the seriousness of your conduct was reduced by each of the workers being able to expand on the lies during the subsequent interviews at the Refugee Status Branch and the Refugee Status Appeals Authority.
[15] The relevant features of the involvement of each of you means that Kulwant Singh is to be treated as the more culpable of the two by a measure that will be reflected in the starting points for the sentences that I propose.
[16] In sentencing both of you, I have to have regard to the purposes of sentencing in s 7 of the Sentencing Act 2002 and take into account the principles of sentencing in s 8 of that Act. I am guided by sentences imposed in other cases of immigration fraud that are more or less comparable, particularly where the appropriateness of sentences has been reconsidered on appeal.
[17] Immigration fraud in its various forms is treated very seriously by the courts, and the Court of Appeal has acknowledged that, among the purposes in s 7 of the Sentencing Act, deterring others from committing such crimes is an important consideration in such sentencings.1
[18] The Crown has submitted that a starting point for both of you should be in the range between three and three and a half years’ imprisonment. That is based on the comparison Mr O’Donoghue has drawn with other immigration fraud sentencings, and bearing in mind that the maximum penalty is seven years’ imprisonment or a fine not exceeding $100,000, or both.
[19] On your behalf Kulwant Singh, Mr Zindel contends for a starting point of
20 months’ imprisonment, and Mr Mansfield, for Mr Singh Sangha, for a starting
1 R v Hassan [2008] NZCA 402 at [27].
point of no more than two years’ imprisonment. Both defence counsel have argued for those starting points so that, after deductions they urge should be made for mitigating circumstances, the length of the prison term would be within the range where the Court has the power to transform it into a sentence of home detention.
[20] The Crown resists any reduction that would get below the two year upper limit for transforming a prison sentence into one of home detention, and Mr O’Donoghue submits that, in any event, the less punitive nature of a home detention sentence would be an insufficient deterrent signal for others minded to offend in a similar way.
[21] Of the numerous cases cited to me, I find those of Liao and Elliott to be among the most useful as comparisons.2 In Liao, the defendant had been convicted of 17 offences involving forgery and supplying false information to an Immigration officer. Mr Liao was the agent for a language school that had not been approved by the New Zealand Qualifications Authority. He assisted seven students to apply for a different language school that was approved on the understanding that they would then actually attend his school. In some cases he signed applications on behalf of the students, which gave rise to forgery convictions. He made a modest benefit out of
the unlawful activity, estimated at no more than $3,500. In the District Court, a
sentence of 300 hours’ community service was imposed, but the Crown appealed.
[22] The High Court found that a starting point of two years would have been appropriate. A co-offender who had received substantially more money from the illegal activity was sentenced from a starting point of two years and nine months, which the Court on appeal found to be within the appropriate range. That case has similarities in that the false information presented was about others, and not the defendant himself, and the motive was financial, albeit not direct or for very significant amounts. Bearing in mind that the appropriate sentence set by the High Court was on a Crown appeal, and that the circumstances appear somewhat less serious than the present, I consider starting points for both of you should be
higher than set on appeal in that case.
2 Department of Labour v Liao HC Auckland CRI-2004-404-499, 14 April 2005; Elliott v R
[2010] NZCA 611.
[23] In the case of Elliott, the convictions were for conspiring to aid or abet a person to remain in New Zealand unlawfully, for financial gain. The defendants there employed illegal workers, both through a legitimate subcontractor who they knew was employing illegal workers, and also through fictitious subcontractors used to disguise the illegal status of the workers. A relatively complex scheme was involved that was well-planned and carried out over a significant period of time. It was pursued for commercial benefit including diversion of tax obligations. In that case, the Court of Appeal upheld a starting point of four years. In terms of sophistication, the scale of commercial gain and period of time over which it was undertaken, that case is more serious than the present.
[24] The Crown has not submitted victim impact statements from any of the workers, but has produced a victim impact statement completed by the manager of Refugee Status Branch at the Ministry of Business Innovation and Employment. It is written as if the Refugee Status Branch was a victim of your offending. With respect, I do not consider that was appropriate. Institutionally, the Refugee Status Branch is a part of the government agency empowered under the Act to prosecute offences under it. Acting as a prosecuting agency involves it in prosecutions in a capacity quite distinct from that of a victim.
[25] However, the points made in the victim impact statement are still relevant as indications of the relative seriousness of the offending and its impact. All those who claim refugee status in New Zealand are considered in good faith and thoroughly. No precise cost is suggested on behalf of the Refugee Status Branch to process each claim, but clearly those costs are significant. The resources available to deal with claims are limited, so that the diversion of resources to research and deal with false claims compromises the quality of the service that is available on behalf of all New Zealand citizens to consider those claims that are advanced on genuine terms. The integrity of the system is threatened every time false claims are made, and it is by no means victimless crime. The Refugee Status Branch is sensitive to the criticism that false claims can attract along the lines that asylum seekers are queue jumpers or economic migrants, and that the refugee convention which New Zealand respects and upholds should be re-evaluated. Crimes such as yours add material pressure to the efficient processing of genuine refugee claims.
[26] Having regard to the other cases I have mentioned and the serious consequences of the offending, I consider the appropriate starting point here is three years for Kulwant Singh and two and a half years for Jaswinder Singh Sangha.3
[27] In arriving at those starting points, I have also considered all of the cases suggested by each counsel as comparisons. To the extent they reveal a pattern in the level of sentences relative to the seriousness of offending in the area of immigration fraud, the starting points I have fixed sit comfortably within that range. However, the features that are relevant to the seriousness of the offending in each of those cases vary so much that there is limited help in attempting a detailed ranking of your criminality compared with what was involved in those other cases.
[28] Having set that starting point, I have next to consider whether there are any aggravating circumstances in relation to either of you that make the circumstances in which you offended any worse. Each of you have a single, unrelated conviction from many years ago. In both cases those are irrelevant and I am satisfied that there are no aggravating circumstances that would justify an increase from the starting point.
[29] The next consideration is mitigating circumstances that can appropriately be taken into account to your credit, to reduce the appropriate sentence from the starting point.
[30] Kulwant Singh, you have produced an impressive number of very supportive references from family, friends, business associates and others in the Sikh community. A recurring theme is the perception of those who know you well that you are honest, trustworthy and very caring of others. In particular, Mr Chambers, who appeared as a witness for the Crown in the case and is aware of the nature of the convictions, has spoken very highly of you. He sees you as an exemplary husband and father, a man of enormous charity and without peer as an interpreter assisting him in his immigration work. The number and nature of those positive references justify the submission that the present convictions reflect a tragic departure from
commendable standards in your work and in your personal life.
3 As stated in error, and corrected after questioning from Mr O’Donoghue: see after [44] below.
[31] In terms of family, you remain supported by your wife who does not enjoy good health and she is very concerned at the prospect of losing your support if you were sent to prison.
[32] In terms of your own health, a medical report from September 2014 advises that you have severe ischaemic heart disease, having had bypass surgery in 2001 and you are on constant medication for your heart disease.
[33] The provision of advice to the Court from the Department of Corrections assesses you at low risk of re-offending and low risk of harm to others. The recommendation is for a sentence of home detention, although the assessment is that your medical issues would not be a barrier to your completing any sentence the Court might impose.
[34] The observation by the report-writer that you attempted to minimise your own part in the offending coincides with the view I took after observing your evidence at trial. In doing your best to blame others for the harm caused to the workers and immigration system, you have a blind spot about the significance of your own part in their sad experiences and the difficulties created for the Ministry.
[35] Mr Zindel submitted that your previous good character and your good standing in the community ought to entitle you to a discount of 15 per cent. Taking all matters in the round, I accept that that is appropriate. From a starting point of two and a half years or 30 months, a 15 per cent discount would leave a term of 25 and a half months. That outcome is important in that any other mitigating factors entitling you to a larger discount could bring you down to 24 months or less that would qualify you for home detention. However, I can find none.
[36] Turning to consider Jaswinder Singh Sangha, you have provided letters of support from two horticultural enterprises that use your business for the supply of labour, and who continue to support your business, despite knowing of your convictions. You also have expressions of support from a Sikh sports club, that comes from a cousin of yours, and a Sikh community organisation that both speak highly of your work for them. Like Kulwant Singh, the picture I have of your
character apart from this offending is a very positive one. You are a committed family man and supporter of the Motueka community and the employees you use in your own business. You are therefore entitled to credit for previous good character in the same way as I have acknowledged for Kulwant Singh.
[37] The pre-sentence report-writer assesses you as being at low risk of re-offending. Community detention and community work and a fine are recommended as the appropriate penalty. I infer that one factor in not making home detention a primary recommendation may have been concerns at the difficulties in monitoring your whereabouts if, as anticipated, you were given permission to move about over the quite wide area where your business does work in the course of a sentence of home detention. I am not persuaded that the possible difficulties in monitoring make home detention an unsuitable sentence, and consider that, given all your circumstances and your commitment to family and your business, adequate monitoring arrangements could be made.
[38] Mr Mansfield urges that I should consider home detention. He says that I get well below two years. Now, given the starting point in your case of two years or
24 months, a similar discount of 15 per cent for the mitigating factors would reduce the notional length of prison sentence to a little more than 20 months, which does bring you within the sentences of short duration where home detention can be considered as an alternative.
[39] Mr Mansfield urged that for a range of reasons. First, because your business would be likely to fail if you cannot personally attend to it, whereas it would be possible to keep it going with appropriate conditions imposed on a home detention sentence. Secondly, because you are effectively the only breadwinner for your wife and your three children, severe hardship would be caused to them if they were left to fend for themselves without income whilst you were in prison. I must say that is often a sad consequence of offending and it cannot carry substantial weight.
[40] Further, I am asked to consider the likely loss of work for those employed by your company who may not be able to transfer themselves as workers for the orchards you work for without your organisational skill in place.
[41] In addition, I am asked to treat your health difficulties as sufficient to make a sentence of imprisonment disproportionately harsh for you. Mr Mansfield advises that since removal of a tumour in 2000 you have lived with chronic pain and that medical tests, including some undertaken during the trial, have identified a benign growth in your kidney that may well need to be removed. On the information I have, that level of adverse medical condition might not be enough to mean that a sentence of imprisonment would be disproportionately severe for you, but it is a factor I take into account in support of transforming what would otherwise be a prison sentence into one of home detention.
[42] I am mindful of the Crown’s concern that a sentence of home detention for your offending would send an insufficient deterrent signal. Given the relatively less serious culpability of your offending, and all the personal circumstances, I am satisfied that an appropriate deterrent signal is sent by a sentence of home detention and that is what I intend to impose, coupled with a sentence of community work.
[43] Before imposing the final sentences that I have decided are appropriate, I acknowledge the consideration I have given to the relativity between them. The outcome will be for Kulwant Singh that you are sentenced to two years and one month’s imprisonment. For Mr Singh Sangha, the sentence will be one of
10 months’ home detention, together with a sentence of 300 hours’ community work. I am satisfied that the relativity between these two outcomes is appropriate. Kulwant Singh, yours was the primary part in presenting 11 forms and 11 supporting personal statements that were utterly and, in some respects, incredibly false but were received and considered in good faith. The relative seriousness of that and the need for a deterrent signal means that a prison sentence of that length is necessary.
[44] It may be thought that Mr Singh Sangha is fortunate to have fallen on the other side of the line dividing prison from home detention. I am satisfied that the difference is justified. His part in the offending was less and I have rejected the Crown’s argument that offending at his relatively less serious level also requires the deterrent signal sent by a prison sentence. Once the appropriate length of a prison sentence is within the range where home detention is available, his personal circumstances make home detention the more appropriate sentence.
[Mr O’Donoghue, have you got a concern?
Mr O’Donoghue: I do. You said that the – earlier on in your sentencing comments you said that the appropriate starting point for Kulwant Singh was three years and you said that the appropriate starting point for Jaswinder Singh Sangha was two and a half years. When you’ve come to take the 15 per cent reduction off, you have applied that to two and a half years for Kulwant Singh and to two years for Jaswinder Singh Sangha. You haven’t used your starting point.
Judge: Well …
Mr O’Donoghue: Fifteen per cent off three years is 30.5 months and 15 per cent of two and a half years is 25 months, which would take it outside home detention for Jaswinder Sangha. I just felt I should draw that to your attention.
Judge: Thank you for drawing that to my attention. The numbers I have ended at are those which I intend. I must have misstated those initial – my intention was certainly to have starting points of two years for the party and two and a half years.
Mr Mansfield: Sir, that’s what you said in the body of your decision but I think at the start my learned friend is quite right, you put it the other way. But when it came to the reasoning and the calculations, you started with a starting point for Kulwant Singh of two and a half years and for my client two years and made the reduction from there. So it seemed …
Judge: Well, the outcome is as I intended. Thank you for drawing it to my attention Mr O’Donoghue. I will – when I’ve got it typed back …
Mr O’Donoghue: Well, can I just get you to confirm what you first said that the starting point you consider for Kulwant Singh is three years, which is what you said originally, and the starting point for Jaswinder Sangha is two and a half years?
Judge: If I did say that I didn’t intend to. I see how it’s happened. Yep. Yes.
You heard me correctly but I did not intend to put the starting points there. It was
two and a half and two. Not three and two and a half. But thank you. It is entirely appropriate that you raise it.
Mr O’Donoghue: Well, I had two ways of dealing with that Your Honour. I could have just left it and then tried to appeal it, saying that the maths doesn’t add up. But I’ve got you now to do that and we’ll have to consider what we think of your starting points.
Judge: Of course that’s your liberty Mr O’Donoghue, and I don’t mind the intrusion. Before I formally pass sentence, I should acknowledge Mr O’Donoghue’s concern at an inconsistency between the starting points and the subsequent calculations. It was my intention and I now confirm that the starting point for Kulwant Singh is two and a half years and that for Jaswinder Singh Sangha two years.]
[45] Accordingly:
(a) Kulwant Singh, you are sentenced to a term of two years and one
month’s imprisonment.
(b)Jaswinder Singh Sangha, you are sentenced to a term of 10 months’ home detention and a sentence of 300 hours’ community work. The conditions applying to your home detention sentence are as follows:
(i)You are to go directly from the Court to the address at which the home detention sentence is to be served and await installation of monitoring equipment.
(ii)You are thereafter to remain at the home detention address for the duration of the sentence except for absences for work or medical reasons that are approved in advance by those supervising your sentence.
(c) You are also to report for your sentence of community work as directed by the Department of Corrections.
[46] You may stand down.
Dobson J
Solicitors:
Crown Solicitor, Nelson
Zindels, Nelson
Counsel:
R M Mansfield, Auckland
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