R v Singh
[2014] NZHC 209
•19 February 2014
ORDER PROHIBITING PUBLICATION OF IDENTIFYING PARTICULARS OF THE ELECTORS THAT WILL BE REFERRED TO IN THESE SENTENCING REMARKS.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-092-015641 [2014] NZHC 209
THE QUEEN
v
DALJIT SINGH GURINDER ATWAL MANDEEP SINGH VIRENDER SINGH PARAMJIT SINGH MALKEET SINGH
Hearing: 19 February 2014
Appearances: R M A McCoubrey and F M T Culliney for the Crown
R M Mansfield for the Defendant, Daljit Singh
S J Bonnar for the Defendant, Gurinder Atwal
A J Maxwell-Scott for the Defendant, Mandeep SinghB L Sellars for the Defendant, Virender Singh
M I Koya for the Defendant, Paramjit Singh
J F Mather for the Defendant, Malkeet Singh
Judgment: 19 February 2014
SENTENCING REMARKS OF WOOLFORD J
R v SINGH & ORS [2014] NZHC 209 [19 February 2014]
REMINDER:
Before I commence, members of the press who are present, could I remind you that there are suppression orders in place in respect of the names of the electors I will be referring to during the course of my sentencing remarks.
[1] Mr Daljit Singh, Mr Gurinder Atwal, Mr Mandeep Singh, Mr Virender Singh, Mr Paramjit Singh and Mr Malkeet Singh, you appear for sentence today having each been convicted of charges of causing other people to use, deal with, or act upon forged documents as if they were genuine when you each knew they were forged. That is an offence against s 257(1)(c) of the Crimes Act 1961. The maximum
sentence is 10 years imprisonment.1
[2] Mr Daljit Singh, you were convicted of two counts. Mr Atwal, you were convicted of 13 counts. Mr Virender Singh, you were convicted of one count. Mr Paramjit Singh, you were convicted of one count. Mr Mandeep Singh, you were convicted of one count and Mr Malkeet Singh, you were convicted of six counts.
Facts
[3] The offending occurred from July to August 2010. Mr Daljit Singh was running for election as a board member on the Otara - Papatoetoe Local Board – Papatoetoe sub-division. In August 2010, the Electoral Enrolment Centre (EEC) received information relating to irregularities in relation to enrolments to vote in the Papatoetoe ward. The EEC’s audit of new enrolments and change of address applications revealed that multiple persons were residing at the same addresses. Some voters had more than one Enrolment to Vote Application (ROE1) form with each showing different addresses.
[4] To complete an ROE1 form online, an elector registers on the EEC website and must complete personal details including date of birth, residential address, and optional postal address and contact phone details. Once the details are completed the ROE1 form is downloaded and printed out by the elector. Alternatively, the completed ROE1 form can be printed out by the EEC and sent by post to the elector. In either case the elector must then sign and date the form and send it to the EEC. On receipt of the form, the EEC staff check the details, process the form, date stamp it and enter it into their database. In addition to the ability to complete the form online, blank ROE1 forms are distributed throughout the community to individuals
and groups and are available from Postshops and libraries for completion and return
1 Crimes Act 1961, s 257(1).
in a similar manner to forms completed online. Upon receipt of completed forms, the EEC then generates a further form (an ROE2) which is sent to the residential or postal address listed for confirmation of details and for return if incorrect. If this form is not returned by post, it is deemed to be correct. The elector is then enrolled to vote. Their voting papers are posted to the postal address given and his/her vote is completed by the elector and returned to the Returning Officer for the ward.
[5] I will discuss the facts relating to your individual convictions later, but broadly, the offending involved you each playing a part in obtaining details of electors who did not reside in the Papatoetoe ward and completing ROE1 forms in their names or completing ROE2 forms which had already had some details entered, and providing addresses for them in the Papatoetoe ward and then sending forms back to the EEC with altered details and forged signatures.
[6] The EEC conducted an audit of new enrolments and change of address applications and noticed large numbers of electors being registered as living at the same address. The EEC also noticed that large numbers of ROE forms had been downloaded or requested from the same IP addresses. The audit also showed that some electors had more than one ROE1 form but showing different addresses. The EEC complained to the New Zealand Police. Investigation and prosecution followed.
Sentencing approach
[7] I will now discuss the approach I will adopt in sentencing each of you today. The accepted approach to sentencing involves considering the circumstances and seriousness of the offending you committed and setting a starting point with the aid of comparable cases.2 Aggravating and mitigating factors of your offending are taken into account in setting the starting point. I then need to consider whether there are any relevant aggravating or mitigating features personal to you which might
increase or reduce the sentence from that starting point.
2 R v Taueki [2005] 3 NZLR 372 (CA); R v Clifford [2012] 1 NZLR 23 (CA).
[8] When sentencing an offender for multiple offences, a Judge must decide whether to impose separate sentences for each offence, which the offender will serve cumulatively, or whether to take one charge as the lead offence and increase the sentence to reflect the other charges if necessary. When the offences are similar in kind and are a connected series of offences, concurrent sentences are generally
appropriate.3 I will be sentencing each of you concurrently today, which means that
I will not set a separate sentence for each offence. If I am imposing sentences of imprisonment for more than one offence, I must step back and consider whether the total sentence is proportionate to the totality of the offending.4
[9] I intend to discuss the purposes and principles of sentencing as they relate to the offending overall. I will outline the Crown’s submissions relating to the overall offending and the common threads from your lawyers’ submissions. I will then discuss relevant case law. I will draw on this discussion when I come to sentence each of you. In sentencing each of you, I will discuss the facts relating to your individual convictions and I will highlight any comments made by the Crown which are specific to you, as well as specific comments made by your lawyer.
Purposes and Principles of Sentencing
[10] In sentencing each of you today, I have taken into account a number of sentencing purposes and principles as set out in the Sentencing Act 2002. The relevant purposes I have taken into account are:
(a) Holding each of you accountable for harm done to the community by your offending;
(b) Promoting in each of you a sense of responsibility for, and an acknowledgement of, that harm;
(c) To denounce your conduct; and
3 Sentencing Act 2002, s 84(2).
4 Sentencing Act 2002, s 85.
(d) Deterring each of you and other persons from committing similar offending.
[11] I note that the most important of these is denunciation and deterrence. I have also taken into account the principles of sentencing set out in s 8 of the Sentencing Act.
[12] I will make some general comments about the overall offending. First, this was not victimless offending. The victims are the public at large who have faith in the democratic process. Your actions have undermined one of the most important principles of our society. Although the six of you have been convicted of a number of offences, I acknowledge that this was not a conspiracy, but rather each of you acting in some way individually to assist electors to be fraudulently enrolled in the Papatoetoe ward, inferentially after discussions with others.
[13] You, Mr Atwal gave evidence that you thought you were not acting fraudulently and referred to the wording on the ROE1 forms. In finding you guilty, the jury rejected your evidence. I do note, however, that the instructions on the enrolling to vote form are not entirely clear. The form states that the elector’s residential address is the address “where you choose to make your home”. The explanation for what “reside” means states “you “reside” at the place where you choose to make your home because of family or personal relations or for other domestic or personal reasons.” The jury obviously rejected your interpretation of this wording as allowing you to “choose” an address that may not have been the elector’s address. Nonetheless, I think it advisable for the form to be reworded to eliminate any doubt.
[14] I also wish to make reference to the context of your offending. Your offending cannot be divorced from your culture and community. From the pre- sentence reports for each of you, it is clear that it is common within your community to help others with filling out forms and it is even common for members of your community to sign forms for others. Our law does allow for other persons to sign ROE1 or ROE2 forms for electors, but only in well defined circumstances that are not applicable here. Our society places a very high value on individual autonomy.
Decisions on enrolling and voting are for the individual elector, not members of their family or community.
Crown submissions – an overview
[15] Counsel for the Crown notes that this offending is largely without New Zealand precedent and submits that this is serious offending, which did not arise from cultural misunderstandings. It says that because of the way the jury was directed, you must be taken to have known that the documents in question were created to mislead.
[16] They submit that the consequences of your offending are the undermining of the public’s trust in the integrity of the electoral system and undermining of the public’s confidence that the Electoral Commission has systems in place to protect the security of personal information. The Crown submits that your offending undermines New Zealand’s high rank on international surveys relating to corruption.
[17] The Crown submits that the important sentencing purposes are holding you each accountable for harm done to the community, promoting in each of you a sense of responsibility and acknowledgement for that harm, denouncing your conduct and deterring others from similar offending.
Defence submissions – an overview
[18] There are some common threads in the submissions of each of your lawyers. They all submit there is no tariff or guideline judgment, and that the Crown’s starting points are manifestly excessive. They submit that the comparisons with the cases of R v Field5 and Ismail v R6 (which I will come to shortly) are inapt. The offending must be seen in context. A common submission was that this was the lowest possible level of political involvement. There were no substantive consequences
caused by your offending as the EEC investigation meant that no invalid votes were cast. Another common thread in the submissions is that none of you received
financial or personal gain out of your offending. Your offending is characterised as
5 R v Field HC Auckland CRI-2007-092-18132, 6 October 2009.
6 Ismail v R [2011] NZCA 444.
arising from misguided loyalty and a misguided desire to support and improve your community.
[19] The majority of your lawyers submit that an appropriate starting point is a community based sentence. Three of you, Mr Daljit Singh, Mr Paramjit Singh and Mr Virender Singh, seek discharges without conviction, your lawyers submitting that the consequences of conviction would be out of proportion to the gravity of your offending.
[20] Section 106 of the Sentencing Act allows me to discharge you without conviction, but I must not do so unless I am satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of your offending.7 To come to a conclusion on proportionality, I must identify the gravity of the offending by reference to the facts; identify the indirect and direct consequences of a conviction; and determine whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.8 The assessment of the gravity of the offending should take into account
aggravating and mitigating factors of both the offending and offender.9 It is not
necessary to be satisfied that the identified consequences of conviction will inevitably occur. It is sufficient if I am satisfied that there is a real and appreciable risk that such consequences would occur.10
[21] I note that where an independent body is charged with the responsibility of assessing applications for things such as career admission and licensing, the courts have been inclined to enter convictions and allow that body to make its own decision
with knowledge of all the facts.11
7 Sentencing Act 2002, s 107.
8 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142; Balfour v R [2013] NZCA 429.
9 Z (CA447/12) v R at [27].
10 Humphrey v Police HC Dunedin CRI-2010-412-41, 19 February 2011 at [7].
11 Whitehouse v Police HC Auckland CRI-2010-404-263, 8 June 2011. Taking this into account is not a fetter on my discretion as this is a relevant factor to take into account: Franks v Police [2013] NZHC 3556 at [20].
Relevant case law
[22] There are no recorded cases of electoral fraud in New Zealand. I will however refer to New Zealand cases involving other types of fraud and I will refer to comparable electoral fraud cases from overseas.
New Zealand
[23] As far as New Zealand cases are concerned, in R v Field, Mr Field was found guilty of 11 counts of corruptly accepting benefits in connection with acts carried out by him in his role as a Member of Parliament and on 15 counts of attempting to pervert the course of justice.12 On the charges of accepting benefits, the Judge adopted a starting point of five years imprisonment. I consider that Mr Field’s case is much more serious than your offending. Mr Field received tangible benefits in exchange for something he was elected and paid to do as an MP.
[24] In the case of R v Friedlander, Mr Friedlander placed false information before his creditors which suggested that he owed money under a sale and purchase agreement when he did not.13 Had his offending not been discovered, he would have put this false information before the High Court when seeking relief from bankruptcy. Mr Friedlander was charged with forgery, using a document with intent to defraud and attempting to pervert the course of justice. Priestley J adopted a starting point of three years imprisonment. Mr Friedlander’s co-offender, Mr Vuletic, assisted in the forgery.14 He derived no personal gain from his part in the offending, but Gilbert J adopted a starting point of two and a half years imprisonment. The offending of Mr Friedlander and Mr Vuletic is not, however, directly comparable to yours.
[25] In the case of White v Ministry of Social Development, Ms White pleaded guilty to 12 counts of dishonestly using documents to obtain social security benefits and one of misleading a Social Welfare officer.15 She told the Ministry she was not
living with a spouse when she in fact was. She received benefits totalling
12 R v Field, above n 5.
13 R v Friedlander [2012] NZHC 3443.
14 R v Vuletic [2012] NZHC 3198.
15 White v Ministry of Social Development HC Gisbourne CRI-2011-416-28, 4 November 2011.
$150,516.81. The starting point adopted was three years imprisonment. However, you did not receive any financial or any other gain from your dishonest use of documents.
England
[26] Turning then to English case law, in R v Phillips, Ms Phillips was sentenced to two months imprisonment on two counts of personating an elector at a parliamentary election.16 She obtained postal ballot papers for two electors and signed them in the electors’ names before sending them off. The English Court of Appeal commented that it must be in very rare circumstances that a person who uses fraud to cast an improper vote should not receive a custodial sentence. Your
offending however did not involve the actual casting of votes.
[27] In another English case, R v Khan, Mr Mohammed Khan was sentenced to three years and four months imprisonment for conspiracy to defraud and conspiracy to pervert the course of justice.17 His offending could be seen as similar to your own. Mr Khan falsified registration and election documents to increase the postal votes cast for a Mr Raja Khan. Multiple people were registered at the same addresses. I will read out the poignant comments of the English Court of Appeal to impress on you and your co-offenders the seriousness of your offending:
We live in a democratic society. The vote is at the very heart of the democratic process. At the moment when each citizen places his vote into the ballot box or casts his vote by post, that is a moment when the right of each and every citizen is absolutely equal. We all have one vote: no more, no less. That is the essence of our democratic process.
[28] In another English case, R v Hussain, Mr Hussain was sentenced to three years and seven months imprisonment for one count of conspiracy to defraud.18
Mr Hussain stood as a candidate in a local election, as you did, Mr Daljit Singh. He and his supporters visited homes of postal voters and persuaded householders to hand over incomplete forms which were then completed by or on behalf of
Mr Hussain. Mr Hussain took advantage of voters who had limited English to
16 R v Phillips (1984) 6 Cr App R (S) 293 (CA).
17 R v Khan [2009] EWCA Crim 2483.
18 R v Hussain [2005] EWCA Crim 1866.
submit 223 votes. The English Court of Appeal commented that this sort of conduct undermines the democratic system and cannot be tolerated.
[29] Whilst the English cases display a strong preference for imprisonment in cases of electoral fraud, I pause here to note that that does not necessarily mean that such an approach is appropriate in New Zealand. The context of our country, where electoral fraud is extremely rare, must be used as the backdrop in sentencing each of you.
Australia
[30] In the Australian case of the R v Ehrmann, Ms Ehrmann, an elected councillor and secretary of her local branch of the Australian Labour Party, was sentenced to three years imprisonment on 24 counts of forgery and 23 counts of uttering.19 She forged applications for enrolment by either filling in details which those who had signed the forms had left blank, or filling out entire forms and signing them herself.
Sentencing exercise
[31] I will now discuss in greater detail the counts each of you were found guilty of and conduct the sentencing exercise for each of you. I will start with you, Mr Daljit Singh, as you were one of the candidates for election and stood to benefit in some way from the fraud. I will then move to Mr Gurinder Atwal, followed by Mr Malkeet Singh, Mr Paramjit Singh and then Mr Mandeep Singh. I will finish with you, Mr Virender Singh.
[32] However, before I do so, I want to make some general comments about starting points. I have given much thought to an appropriate starting point for this offending both in terms of electoral fraud itself and in relation to other offending. At the outset, let me say that I am not persuaded that a substantial term of imprisonment is the appropriate starting point notwithstanding the approach taken in England and
Australia. I take into account the following factors:
19 R v Ehrmann [2001] QCA 50.
(a) The offending was detected well before the election, which was unaffected. Only 19 suspect voting packs were sent out and no improper votes were cast. Whilst this was fortunate for you, this is an appropriate matter to take into account given that the effects of the offending are relevant in determining the appropriate level of punitive response.
(b) The offending was bound to be detected. As the Chief Electoral Officer states in his Victim Impact Statement “This case demonstrates that the enrolment system in New Zealand is robust and that incidences of enrolment fraud will be detected and prosecuted.”
(c) The lack of any previous cases of electoral fraud means that arguments relating to the prevalence of the offending are not open.
(d) The lack of clarity on the wording on the ROE1 forms when it states that reside means where you choose to make your home.
(e) The Crown chose to prosecute this offending under s 257 of the Crimes Act 1961, which carries a maximum sentence of ten years imprisonment. This can be compared with specific summary offences under ss 118 and 119 of the Electoral Act, which carry maximum sentences of three months imprisonment and a fine of $2,000 respectively. This specifically includes an offence of signing the name of any person, whether requested to do so or not, or any false or fictitious name to any form.
(f) Any gain by Mr Daljit Singh, if he was elected as a Board member, would have been minimal. There was no gain to any of the other defendants.
(g) The offending can be characterised as naive. I think it arose out of genuine, but misguided enthusiasm by Mr Daljit Singh and his supporters to represent his community for its betterment.
Mr Daljit Singh
[33] Mr Daljit Singh, you were found guilty of Counts 3 and 13A. Count 3 related to the forms for six people who lived in Timaru, but who were enrolled to vote in the Papatoetoe ward. On 20 July 2010, you contacted one of them by text message and then answered a phone call from him before you say you passed the phone to an associate. He gave his own details and the details of five family members to the person to whom he spoke. Immediately following the phone call, registration forms were completed and downloaded from your house. After another phone call the next day, a sixth form was downloaded from your work address and completed. Someone other than the family members signed the forms and sent them to the Electoral Enrolment Centre.
[34] Count 13A related to three other persons, family members of Mr Virender Singh, who had lived with him in Papatoetoe when they first came to New Zealand. At the time of the election however they lived in Katikati. One of them gave evidence that he registered to vote in Katikati, and never registered anywhere else. He did not complete the form in his name and did not know anything about it. On 27
July 2010, Mr Virender Singh sent you a text message with the family’s details. Registration forms for the three family members were downloaded at your house that night. Someone other than the named electors signed the forms and sent them off to the Electoral Enrolment Centre.
Personal circumstances
[35] You are a 43 year old man. You were born and raised in India and immigrated to New Zealand in 1989 due to civil unrest in India. Within your community you have had the roles of immigration adviser, marriage celebrant and Justice of the Peace. You worked as a real estate agent. You are widely known for your charity work. You are married with two sons.
Pre-sentence report
[36] I have before me a pre-sentence report prepared by the Probation Service. The report writer states that initially you did not want to run for the Board but were
pressured by your peers to represent the Indian community. You accept in hindsight that as you accepted the responsibility of running, you should have taken a more active role in your campaign.
[37] With regard to the two charges of which you have been convicted, your knowledge relates to the signing of the forms. You say that it is a common practice within your culture for the significant male in a family to sign on behalf of his wife and children. You are remorseful for your failure to oversee those running your campaign. However you recognise that responsibility remains with you.
[38] The writer has identified your offending supportive associates as being the main factor which contributed to your offending. You are determined to distance yourself from politics and not place yourself in such a vulnerable position again. You have no rehabilitative needs. You are assessed as being at a low risk of re- offending and as having a low risk of harm to others.
[39] The report writer recommends a sentence of home detention to reflect the gravity of your offending.
Submissions
Crown submissions
[40] The Crown submits that you are of similar culpability to Mr Atwal, who was convicted of many more offences than just two. The Crown submits that the fact that you have been found guilty of fraud in relation to an election in which you were a candidate aggravates your offending. The Crown submits that an appropriate starting point would be between three to four years imprisonment.
Submission for Mr Daljit Singh
[41] Your lawyer submits that your offending does not merit a starting point of imprisonment and an appropriate starting point is a community based sentence. Your lawyer also submits that the consequences of conviction far outweigh the gravity of your offending, and I should discharge you without conviction.
[42] He says you are very remorseful and will not re-offend. You are committed to working with your community to educate and develop strategies to ensure that the community is aware of the legal requirements of voting.
[43] Your lawyer submits that whilst the nature of the offending considered out of context is serious, your role was limited and it cannot be assumed that you were involved in the full extent of the fraud. It would be unfair to assess the gravity of the offending with respect to the wider fraudulent activity. He says that your offending arose out of a sense of altruism and desire to improve the community. You were not motivated by financial or personal gain. Your lawyer seeks to mitigate your offending by submitting that the position you were running for is perhaps the least powerful position available in elected office and such elections have not normally been well supported or considered important. He submits no real substantive harm was caused. You are regarded by those who know you as honest and trustworthy and you are very remorseful. Your lawyer submits that the overall gravity of your offending is low.
[44] If you are convicted, you face losing your licence as a real estate agent, immigration adviser, marriage celebrant and Justice of the Peace. Your lawyer says that if you lose your real estate agent licence, you will be unable to retrain due to your age. Damage to your reputation may affect your ability to fundraise in your community. The test is whether this Court is satisfied that there is a real and appreciable risk that such consequences will occur. You offer to make a payment of reparation to contribute toward the costs of prosecution and have already made a payment to a programme for educating members of your community. Such remedial action or offer of amends must result in a reduction in your sentence.
Mr Daljit Singh’s affidavit
[45] You have also filed an affidavit in support of a discharge without conviction. You say that you are deeply ashamed at being found guilty of an offence of dishonesty and that the verdicts have been hard to accept. You say that the public concern about conduct during the election, the police investigation, the long period before trial and the extensive nature of the trial have been understandably difficult on
you and your family. You are aware of the importance of our democratic process, and regard New Zealand’s democratic system highly. You are a committed community member and have undertaken significant charity work. It was your commitment to your community which led you to stand in the local ward. You say you had not intended to offend.
[46] You say that if you are convicted, you will suffer the consequences of having your real estate agent licence revoked, your licence as an immigration adviser revoked, your appointment as a marriage celebrant revoked, you will be removed as a Justice of the Peace, and you will lose your standing and reputation as a community leader. Having a conviction for dishonesty will mean that you are prohibited from holding a licence to be a real estate agent. It will be ten years before you are eligible for a new licence. With regard to your immigration adviser’s licence, the Registrar must not license you unless he or she is satisfied that the nature of your offending is unlikely to adversely affect your fitness to provide immigration advice. The Immigration Advisers Authority is currently considering declining renewal of your licence. You say that the consequences of a conviction are out of all proportion to the gravity of your offending.
[47] You say that the offending came from a misunderstanding, genuine confusion, and lack of education as to what was permissible. However, you yourself were aware of the legal requirements. You offer to pay a portion of the costs incurred by the prosecution as part of any sentence that may be imposed. You also intend to organise an education programme for the Sikh and Punjabi communities to ensure that the communities are properly informed of the laws and requirements of elections in New Zealand. You have donated $5,000 to the Supreme Sikh Society for this purpose.
[48] I note that you have also provided me with a number of character references and certificates which I take into account. You are clearly very highly regarded in your community.
Setting the starting point
Discharge without conviction
[49] Earlier, I referred to the approach to take for deciding whether to exercise the discretion to grant a discharge without conviction.20 Your offending was serious. You committed electoral fraud in an election in which you were a candidate. This is an aggravating factor of your offending. Whilst I accept that it was a local body election rather than a national election, I do not consider that this lessens the seriousness of your offending. The same principles are at stake in a local body
election as in a national election. The community, or the nation, is entitled to have its say in electing representatives. Yours and your co-offenders’ actions were undertaken in order to increase the chances that your chosen representative be elected. By artificially increasing the number of voters in the Papatoetoe ward who would support you, you and your co-offenders qualitatively harmed the democratic integrity of the election process. You admit that you did not oversee your campaign as you should have done and you conducted your affairs in a reckless and naive manner.
[50] I note that you express genuine remorse and have made an offer of amends and taken remedial action in relation to the circumstances of the offending which mitigates the gravity of your offending.21 You also have previous good character and no relevant previous convictions.22 Despite these mitigating factors which I take into
account following Z (CA447/12) v R,23 I cannot view the gravity of your offending as
anything other than moderately high.
[51] A direct consequence of your convictions is that you have ceased to be eligible for a real estate licence for at least ten years. Your name has been removed from the Register of Licencees pursuant to s 37(1)(a) Real Estate Agents Act 2008. This will have a direct impact on your ability to derive income, will affect your family and will have an impact on your ability to retain your home. Another
consequence of your convictions is that the Immigration Advisers Authority is
20 At [20] – [21].
21 Sentencing Act 2002, ss 9(2)(f) and 10.
22 Sentencing Act 2002, s 9(2)(g).
23 Z (CA447/12) v R, above n 8.
considering declining your application to renew your immigration adviser licence. In considering your renewal application, the Registrar must be satisfied that you are a fit person to be licensed.24 You must not be licensed unless the Registrar is satisfied that the nature of the relevant offence is unlikely to adversely affect your fitness to provide immigration advice.25 If your licence is not renewed, this will also directly impact your ability to derive income. Revocation of your licence will obviously mean that you will no longer be able to help your community by providing immigration assistance. I do not however accept your lawyer’s submissions that you will be unable to retrain at age 43.
[52] Another direct consequence of your conviction is that you may also be removed as a marriage celebrant. This will impact your ability to help your community. You preside over weddings in your community and donate any fee you receive to the temple for community projects. An indirect consequence is therefore that the temple may stop receiving these donations. A further direct consequence is that you may be removed as a Justice of the Peace. Additionally, you assist the Department of Corrections by organising placements for people who are required to complete community work and you may lose this responsibility if you are convicted. Other consequences are the impact on your reputation, ability to secure loans, and the stigma that attaches to a conviction.
[53] I must now determine whether these consequences are out of all proportion to the gravity of your offending. After giving the matter anxious consideration, I do not consider that the consequences of the loss of your real estate agent licence, the possibility that renewal of your immigration adviser licence will be declined and possible removal of you as a marriage celebrant and Justice of the Peace and the other consequences mentioned earlier are out of all proportion to your offending. I consider this to be the case even though you definitely will lose your real estate agent licence, and in fact already have lost it, whereas the other consequences are more speculative. It was held in R v Yang that the fact that a conviction may have
the consequences claimed by the offender is not a reason for a discharge where the
24 Immigration Advisers Licensing Act 2007, s 19(1)(b).
25 Immigration Advisers Licensing Act 2007, s 16(a).
circumstances of the case do not otherwise justify a discharge.26 I therefore decline your application for discharge without conviction.
[54] I do accept however that the consequences of your offending have already been far reaching and I would ask the Immigration Advisers Authority to look carefully whether the nature of your offending is likely to adversely affect your fitness to provide immigration advice, especially in light of the character evidence given on your behalf by Mr Bob McIntyre, a former Immigration New Zealand official in New Delhi, and by Mr Matt Robson, a former Minister of the Crown.
Starting point
[55] I come now to fix the starting point for your offending. The benefit that you would have gained if your offending had not been discovered is that you might have been elected. By enrolling voters in Papatoetoe, you and your co-offenders were increasing the pool that you could draw on for support in the election. You knew what the legal requirements were for enrolling to vote, but failed to ensure that those who volunteered for you were aware of the requirements and their importance. You accept that if you had had further input and exercised greater control, the fraudulent conduct could have been prevented.
[56] Your offending may be seen as is similar to Ms Ehrmann’s offending. I referred to Ms Ehrmann’s case earlier.27 She was also running for election, and like you, held a position of trust in the community. She was secretary of her local Labour Party and was an elected councillor. You were a member of the Labour Party, a Justice of the Peace and an immigration adviser. I do not mean to punish you for your prior good character. I mention these things only to make the point that you
were able to take advantage of your standing in the community in order to offend.
[57] In my view, an appropriate starting point is 18 months imprisonment. This starting point reflects the fact that you were convicted of only two counts, but also reflects the aggravating factor of your offending that you were running for election
and did not exercise sufficient control over your volunteers who were in your charge.
26 R v Yang CA51/04 18 August 2004 at [54].
27 At [30].
Adjusting the starting point
[58] I must now adjust this starting point to take account of any aggravating or mitigating factors which are relevant to you personally.
Aggravating factors
[59] There are no relevant aggravating factors.
Mitigating factors
[60] I consider you should receive a 10 per cent discount for your genuine remorse and a further 10 per cent discount for your good character. I consider the measures you have taken to make good the harm that has occurred to be genuine and capable of fulfilment. As the victim here is the community at large, I cannot determine whether your offer has been accepted by the victim as mitigating the wrong, but I do not consider that that should be a bar to your following through, or my taking your
offer of amends into account.28 I cannot order you to pay reparation to the Crown
for its prosecution costs as the Crown is not a “victim” for the purposes of s 4 of the Sentencing Act 2002.29 However, I consider you should receive a further 10 per cent discount for your plan to make good the harm within the community. This results in an end sentence of 12 months imprisonment.
[61] As I have reached a short term sentence, I am entitled to sentence you to home detention. A sentence of 24 months imprisonment or less is considered a “short term sentence” for the purposes of the Sentencing Act, which means that I am entitled to sentence you to a sentence of home detention if I consider that your proposed home detention address is suitable, the occupants of the address understand the conditions of home detention and consent to you serving such a sentence in the residence and you have been made aware of and understand the conditions that will
apply during home detention and agree to comply with them.30 A sentence of home
28 Sentencing Act 2002, s 10(2).
29 Sentencing Act 2002, s 32.
30 Sentencing Act 2002, s 80A.
detention carries with it “in considerable measures, the principles of deterrence and denunciation.”31 As I say, it is an alternative to a short sentence of imprisonment.
[62] Although a short sentence of imprisonment or a term of home detention is an otherwise appropriate sentence, the investigation and prosecution of a number of prominent members of the Sikh community in Auckland has caused great damage to the community. A large number of the Sikh community gave evidence and it was obvious to me that many witnesses were emotionally distressed and that the trial had lead to deep divisions in the community and even in individual families. The community’s suffering would only be compounded by the imposition by this Court of sentences that would further harm the ability of the community to overcome the problems caused by your offending. Though criminal offending will almost always inevitably lead to stress, anxiety and emotional harm for the affected community, I consider that in this case, given the nature of the offending, a rehabilitative approach is appropriate. It is for that reason that I am not going to sentence you to imprisonment or home detention. The least restrictive sentence that is appropriate in
those circumstances is a sentence of community detention.32 You have much work to
do to repair and rehabilitate your community.
[63] A community based sentence of community detention falls below home detention in the hierarchy of sentences.33 I may impose a sentence of community detention if I am satisfied that it would hold you accountable for harm done to the community, and/or promote in you a sense of responsibility and acknowledgement of that harm, and/or denounce your conduct, and/or deter you and others from committing similar offending.34 I am satisfied that a sentence of community detention would meet all these purposes.
[64] I also consider that a sentence of community work is appropriate as well as the nature of your offending makes it appropriate for you to be held accountable to
the community by making compensation to it in the form of work.35
31 R v Iosefa [2008] NZCA 453 at [41].
32 Sentencing Act 2002, s 9(g).
33 Sentencing Act 2002, s 10A(2)(d).
34 Sentencing Act 2002, s 69C(1)(a)(ii)
35 Sentencing Act 2002, s 56(1)(a).
[65] I therefore consider an appropriate sentence is community detention and community work. I am satisfied that such a sentence will meet the purposes set out in s 7 of the Sentencing Act.
[66] I accordingly sentence you to five months community detention and
200 hours community work on each charge on which you were found guilty, to be served concurrently. I consider this sentence to be proportionate to the totality of your offending.
Mr Gurinder Atwal
[67] Mr Atwal, you were found guilty of Counts 1, 7A, 7B, 8A, 8B, 8C, 8F, 9A,
9B, 9D, 9E, 9G and 9H, which were all offences against s 257 of the Crimes Act
1961.
[68] Count 1 related to an individual from Tauranga, and six others. A text message was sent from your phone on 18 July 2010 asking one of them for their family’s details “for making votes.” You say it was sent by someone using your phone. A number of phone calls also took place. The details were entered onto registration forms the next evening. Someone other than the family members signed the forms and sent them to the Electoral Enrolment Centre.
[69] You were also found guilty of Count 7A, relating to forms of four other persons. On 17 July 2010, registration forms were completed online using a computer at your store, Indospice World, and ordered from the EEC. The forms were sent out to the persons named on them for signature and were signed by persons other than those named. The address entered on the forms relating to Count
7A was that of your employee.
[70] You were also found guilty of Count 7B, relating to forms completed in the names of three other persons. You completed the name, address and date of birth of each person by hand. The persons whose details were entered denied signing the forms and said they knew nothing about them.
[71] You were also found guilty of Count 8A, relating to the form of another person, who lived in Papakura with his family. He gave evidence that he discussed transferring his family’s votes from Papakura to Papatoetoe with you and then gave his family’s details to you. He told us that you did not tell him that his address would change nor did he sign the form that was sent to the EEC.
[72] You were also found guilty of Count 8B, relating to three other persons, whose forms were completed on 17 July 2010 at Indospice World. They did not complete or sign the forms.
[73] You were also found guilty of Count 8C, relating to forms completed in the names of two others. The forms were completed and ordered on 17 July 2010 at Indospice World.
[74] You were also found guilty of Count 8F, relating to registration forms for two other persons. Their forms were two of the 40 ordered at Indospice World on 17 July
2010. Neither person knew of the forms completed in their names, nor did they sign them.
[75] You were also found guilty of Count 9A, relating to registration forms of two other electors. You say that one of them asked you to enrol members of his family in Papatoetoe. You also say that you used your sister’s address for the forms. You filled out the forms by hand at Indospice World in the presence of another who took the forms away unsigned. He told us that he did not sign the forms.
[76] You were also found guilty of Count 9B, relating to forms completed in two other names. Their ROE2 forms were posted to their address. You wrote a Papatoetoe address of a family member on the back of the forms which were then sent back to the EEC with false signatures.
[77] You were found guilty of Count 9D, relating to another person. On 1 August
2010, he sent you a text message with his mother’s name and date of birth. His form was filled out in your handwriting and the address given was your family member’s address.
[78] You were also found guilty of Count 9E, relating to two other persons. Their forms were sent to their residential address. You wrote an address of your family member on the back of both forms and acknowledged completing both forms. They did not sign the forms.
[79] You were also found guilty of Count 9G, relating to forms filled out for two other persons. Your handwriting is on both forms and the address given is one of your family members. Neither person signed the forms. You said your cousin told you to put that address on the forms as her family wanted to support Punjabi candidates.
[80] Lastly, you were also found guilty of Count 9H, relating to a form filled out in another person’s name. The form was completed and downloaded at Indospice World on 21 July 2010, signed and dated that day, and sent to the EEC. That person did not complete the form or sign it. That person’s brother sent a text to you containing various names and dates of birth, including those of his brother. He told you that he wanted to enrol his family in Papatoetoe.
Personal circumstances
[81] As to your personal circumstances, you are a 40 year old man of Indian descent. You live with your wife and two children, your parents, your brother, your sister in law, and your brother and sister in law’s three children. You were born and raised in India in a supportive family environment. You graduated with a Bachelor of Arts and came to New Zealand in 1998. Your parents and brother followed you to New Zealand. In 2006 you were in a serious car accident from which you still suffer headaches. You are a director of Indospice World and typically work seven days a week from 9.00 am to 9.00 pm. You run a Western Union agency through your business. You are a community leader and are called on to assist with filling in forms, and used as an interpreter and an advocate in the community. You have undertaken charity work in the community through your business. You have no previous convictions.
Pre-sentence report
[82] I have received a pre-sentence report from the Probation Service. The report writer states that in explanation for your offending, you say that you thought you were helping your associate and did not think your actions were illegal at the time. You express remorse and say that you feel shame in regard to your offending and standing in the community.
[83] You are assessed as being at low risk of re-offending and at a low risk of harm to others. Factors which contributed to your offending were your offending supportive attitudes and sense of entitlement. Despite your denial of your offending you have acknowledged that you downloaded the forms and filled them in, for the purpose of increasing votes for a Punjabi candidate. Your motivation to change is assessed as low.
[84] You have consented to an electronically monitored sentence. Again, the pre- sentence report writer recommends a sentence of home detention.
Submissions
Crown submissions
[85] I have already referred to the Crown’s submissions in general terms. In relation to you specifically, the Crown considers that you are one of the two most culpable offenders as your offending related to a total of 32 electors. It considers that any electoral fraud is an attack on the democratic process and must be viewed seriously. The Crown argues that an appropriate starting point for you would be between three and four years imprisonment.
Submission for Mr Atwal
[86] Your lawyer submits that an appropriate final sentence is community work, or a combined sentence of community work and community detention. He characterises your offending as a misguided effort to support Sikh candidates who were standing as local board members for the Papatoetoe ward. He submits that I can conclude that there was a degree of naïveté about your offending.
[87] Your lawyer submits that there are a number of factual matters that are relevant in sentencing. The first is that this was the first “supercity” local body election. The evidence was clear that there was a concerted effort by the EEC to “target” the Sikh/Punjabi community to encourage members to enrol. He points out that the offending involved an election at the local level rather than national, and in fact this was the lowest possible level of local political involvement which can be considered. He says you received no personal benefit from your offending. You were motivated by a desire to support your community and ensure that the Sikh/Punjabi community gained a voice in your local community. There was a belief among your community that as long as a person enrolled in only one ward and voted once, they could “choose” to enrol in a different ward from where they resided and it is not clear on what basis the jury convicted you, according to your lawyer. The way the Crown presented its case is not inconsistent with the position that you genuinely believed that an elector could choose to enrol in a different ward from the one where he or she resided. There was also evidence that it is not unusual in the community for family members to make decisions for other family members and sign documents on behalf of them. Members of the community regularly approached you for help with completing forms. Your lawyer says that this helps to place your offending in context. Your lawyer also says there were no substantive consequences in relation to the validity of the eventual election. The electoral enrolment system worked as it should – only 19 voting packs were actually sent to suspect addresses. There is also no evidence to suggest that it was ever your intention to actually vote on behalf of others. The Police found unopened voting packs at your workplace, with no attempt having been made to open them and cast votes.
[88] Your lawyer submits that in the context of fraud offending generally, the Courts have recognised that the imposition of sentences of imprisonment serve no useful purpose. He suggests that comparison between the Crown’s starting points and R v Field suggests that the Crown’s starting points are manifestly excessive.
[89] Your lawyer submits that you are entitled to a discount for remorse, previous good character and the significant personal consequences you have suffered and will continue to suffer. He submits that if I consider that some custodial element is necessary in sentencing you, then a sentence of community detention will have the
advantage of enabling you to continue to actively participate in running your business and contributing to the community.
[90] I note that I have received a number of character references on your behalf which I take into account. You are clearly highly regarded in your community and have made a number of charitable donations.
Setting the starting point
[91] I come now to fix the starting point for your offending. The cases I referred to earlier suggest that an appropriate starting point for your offending is around
18 months imprisonment.
Adjusting the starting point
[92] I must now adjust this starting point to take account of any aggravating or mitigating factors which are relevant to you personally.
Aggravating factors
[93] There are no relevant aggravating factors.
Mitigating factors
[94] A guilty plea discount is not applicable. I consider that a discount of 10 per cent is appropriate for the genuine remorse you have displayed. I also consider that a discount is appropriate to reflect your good character. For that I will discount a further 10 per cent giving a total discount of 20 per cent. This results in an end sentence of 14 months imprisonment. As I have reached a short term sentence, I am entitled to sentence you to home detention.
[95] Under the Sentencing Act, however, I must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences contained in the Act.36 I also take into account the desirability of
consistency between co-offenders. I therefore consider an appropriate sentence is
36 Sentencing Act 2002, s 8(g).
community detention and community work, for the same reasons as in the case of
Mr Daljit Singh.
[96] You are therefore sentenced to six months community detention and
200 hours community work on each charge on which you were found guilty, to be served concurrently. This sentence is proportionate to the totality of your offending.
Mr Malkeet Singh
[97] Mr Malkeet Singh, you were found guilty of Count 12A, relating to enrolment forms for three persons. They initially filled out forms giving their correct address and sent them away, but heard nothing from the EEC. You provided further forms for the family. One of them told you his correct address and post box number. You wrote on the forms. When shown the form with a different address and post box number written on it, he said he did not sign it. Another accepted that she may have filled out her name and date of birth and signed her form, leaving the other sections blank.
[98] You were also found guilty of Count 12D, relating to two other persons. One person did not complete forms, did not sign them and did not recognise the address used.
[99] You were also found guilty of count 15A, relating to three other persons. Their forms were completed and downloaded on 29 July 2010. One of them gave evidence that he did not know how his family’s details ended up on the forms in issue. The address on the forms was your address.
[100] You were also found guilty of Count 15B, relating to five other persons. Their forms were completed and downloaded 10 minutes after the forms in count
15A. One of those persons gave his family’s details to you after you persistently asked for them.
[101] You were also found guilty of Count 16B, relating to two persons. One of those said that she did not fill out the form or give her details and neither had the other. Your thumbprint was on one of their forms.
[102] You were also found guilty of Count 16C, relating to two persons. One of those said he did not know how their details ended up on registration forms, but recalled receiving a telephone call from you while he was at work. He gave you his and his wife’s details.
Personal circumstances
[103] You are a 36 year old man. A pre-sentence report has not been completed for you has you did not return from India until 16 February this year, leaving insufficient time for an interview and completion of the report.
Submissions
Crown submissions
[104] The Crown submits that you are the second most culpable, after Mr Daljit Singh and Mr Atwal, as you were responsible for the use of 17 forged ROE forms. The Crown says that it appears from the evidence that you were proactive in changing electors’ addresses. It submits that an appropriate starting point is between two and three years imprisonment.
Submission for Mr Malkeet Singh
[105] Your lawyer submits that whilst the democratic process must be protected, it is important to separate out the ideal from the reality and to guard against rhetoric, especially when the Commission’s primary concern is about the impact that the offending can have on public trust in the enrolment system. Whilst a pre-sentence report did not eventuate, a Probation Officer commented that you had no convictions and no issues with compliance. Your lawyer submits that imprisonment is not an appropriate starting point and that an appropriate sentence is community work.
Setting the starting point
[106] I come now to fix the starting point for your offending. I consider an appropriate starting point to be 12 months imprisonment. Your offending was less serious than Mr Daljit Singh’s and Mr Atwal’s, even though your offending involved
a greater number of ROE forms than Mr Daljit Singh. This is because unlike Mr Daljit Singh, you were not running for election and did not have the ability to assert control over the campaign volunteers.
Adjusting the starting point
[107] I must now adjust this starting point to take account of any aggravating or mitigating factors which are relevant to you personally.
Aggravating factors
[108] There are no relevant aggravating factors.
Mitigating factors
[109] I give you a 10 per cent discount for good character as you have no prior history or issues with compliance. Unfortunately I am unable to assess whether you are remorseful in the absence of a pre-sentence report. I reach a sentence of
11 months imprisonment. It should be clear to you from what I have said to Mr Daljit Singh and Mr Atwal that I do not intend to sentence you to imprisonment or home detention, for the same reasons that I gave when I was discussing the sentences for Mr Daljit Singh and Mr Atwal. A sentence of community detention will meet the purposes in s 7 of the Sentencing Act.
[110] I therefore sentence you to three months community detention and 200 hours community work. I am satisfied that this sentence is proportionate to the totality of your offending.
Mr Paramjit Singh
[111] Mr Paramjit Singh, you were found guilty of Count 14, relating to two family members. According to Immigration New Zealand records, they departed New Zealand on 19 March 2009, 18 months before the elections and had not returned at the time that inquiry was made. The address on their forms was given as Mr Virender Singh’s. You took the forms to Mr Daljit Singh and gave him their details. When you were first spoken to by the Police you said a third person, who
you would not name, took the forms to your parents in India to be completed and signed. You did not give evidence, but you now acknowledge, through counsel, that that is untrue.
Personal circumstances
[112] I turn now to your personal circumstances. You are 51 years of age. You have two children. You own three businesses with your brother and work seven days a week in your liquor store. You have prior convictions, but they are irrelevant to the current offending.
Pre-sentence report
[113] I have received a pre-sentence report prepared by the Probation Service. Your sense of entitlement and your associates were identified as contributing factors to your offending. You have not demonstrated any remorse and maintain your innocence. You are assessed as being a low risk of re-offending and a low risk of harm to others. You do not consent to a sentence of home detention and are not willing to do community work, although your counsel advises me that you do now. You did consent to community detention. You have agreed to curfew hours of Monday to Sunday 2.00 am to 8.00 am because your work hours are from 10.00 am to 11.00 pm Sunday to Wednesday and 10.00 am to 1.00 am Thursday to Saturday. Community Probation does not recommend this curfew and would prefer you to be home by 8pm each night. The pre-sentence report writer recommends a short term of imprisonment.
Submissions
Crown submissions
[114] The Crown submits that you are less culpable than Mr Malkeet Singh, but more culpable than Mr Mandeep Singh. The Crown argues that a starting point of between 12 and 18 months imprisonment is appropriate.
Submission for Mr Paramjit Singh
[115] Your counsel submits that whilst your offending was serious, your case is unusual and merits consideration for a discharge without conviction. Your lawyer submits that the seriousness of your offending is mitigated by the fact that the decision to get involved with the registration to vote was a family decision, and you had your family’s mandate to obtain the forms and have them filled out. Your family wanted to help a Punjabi candidate win the election. You are not competent in the English language and your lawyer submits it can be inferred that you did not know the law relating to the registration forms or what was stated in the forms. You only knew that the forms had to be filled out and signed.
[116] Your lawyer submits that the livelihood of 11 people depend on the income from your family business, and most of the daily income from your Manurewa liquor store is generated between 8.00 pm and 11.00 pm, making it difficult for you to comply with curfew restrictions. Other members of your family are not willing to work in the Manurewa store after an attempted robbery. If you are convicted you will likely lose your manager’s certificate, as Mr Virender Singh’s manager’s certificate was not renewed merely on the information that he been charged. If you lose your certificate, your family will have to stop selling liquor in Manurewa. This will have an impact on your ability to service your mortgages and have an impact on other family businesses.
[117] Your lawyer submits that when considering the motivation and circumstances of your offending, the consequences of a conviction will outweigh the gravity of the offending in this case.
[118] If I do not discharge you without conviction, your lawyer submits that an appropriate sentence is community service despite your initial refusal to consent to such a sentence when interviewed by the Probation Service. Your lawyer says that he has explained the requirements of such a sentence to you and you accepted that it was an appropriate sentence in your circumstances.
Mr Paramjit Singh’s affidavit
[119] You have filed an affidavit in support of your application for discharge without conviction. You explain how your family operates three businesses, one of which is the liquor shop in Manurewa. You say the weekly turnover at the Manurewa shop is around double that of the other liquor shop, and double that of the dairy. You say you are certain your manager’s certificate will be revoked if you are convicted.
Setting the starting point
Discharge without conviction
[120] Whilst you were only convicted of one offence, the gravity of your offending was moderately high due to the impact such offending has on society as a whole. As I have already mentioned, this was serious offending. Whilst I have sympathy for your English language difficulties and appreciate that the language of the registration form is not entirely clear, the fact of your conviction means that the jury rejected your explanation for your offending.
[121] A possible consequence of a conviction is that you will lose your manager’s certificate. There will at least be an inquiry into it. If you do lose your manager’s certificate, you will have to stop selling alcohol in Manurewa, or hire another manager. Your family will suffer financially as a result. However, I as I mentioned earlier, where an independent body is charged with the responsibility of assessing applications for things such as career admission and licensing, the courts have been inclined to enter convictions and allow that body to make its own decision with
knowledge of all the facts.37
[122] In determining whether the consequences of conviction would be out of all proportion with the gravity of your offending, the proper focus is on whether an inquiry into your manager’s certificate as a result of your conviction would be so disproportionate as to support a discharge. I am not required to anticipate or
determine the outcome of the inquiry. Rather, if I am in a position to say that the
37 Whitehouse v Police HC Auckland CRI-2010-404-263, 8 June 2011.
nature of the offending is such that “it would not be a proportionate response for there to be any jeopardy at all”, I should grant a discharge.38 Having carefully considered the issue, I do not consider that an inquiry into your manager’s certificate is out of all proportion with the gravity of your offending and thus I decline to grant you a discharge without conviction.
Starting point
[123] I come now to fixing the starting point for your offending.
[124] I do not consider that your offending merits a sentence of imprisonment. The purposes of holding you accountable for the harm done to the community, promoting in you a sense of responsibility and acknowledgement for that harm and denouncing and deterring your conduct can be met by a community based sentence of community work.39 This is the least restrictive outcome that is appropriate in the
circumstances.40 The nature of your offending makes it appropriate for you to be
held accountable to the community by making compensation to it in the form of work.41 I take a starting point of 300 hours community work.
Adjusting the starting point
[125] I must now adjust this starting point to take account of any aggravating or mitigating factors which are relevant to you personally.
Aggravating factors
[126] There are no relevant aggravating factors.
Mitigating factors
[127] You are, however, not entitled to a guilty plea discount. You have not expressed genuine remorse. I do not consider that there are any relevant mitigating
factors.
38 R v Ranchhod [2009] NZCA 340 at [23].
39 Sentencing Act 2002, s 16(2)(b).
40 Sentencing Act 2002, s 8(g).
41 Sentencing Act 2002, s 56(1)(a).
[128] I therefore sentence you to 300 hours community work.
Mr Mandeep Singh
[129] Mr Mandeep Singh, you were found guilty of Count 12B, relating to the form of one person. The address on that form is your address. That person stayed at your address for approximately five weeks. You told him to make his vote at your house. He did not sign his form, but knew that you would sign it. You later sent him a text message saying that he should say that he signed the form himself, which would appear to be an acknowledgement that you knew you should not sign the form as him.
Personal circumstances
[130] You are a 28 year old man. You were born in India and moved to New Zealand in 2006. You are married with one daughter who is one year old. You work as a freelance truck driver.
[131] I have not received a pre-sentence report for you as you have been in India and the Probation Service had insufficient time to interview and write a report. A memorandum from the Probation Service notes that you were a minor player in the offending and this Court may wish to sentence you to a substantial amount of community work.
Submissions
Crown submissions
[132] In relation to you, the Crown submits that you are the least culpable of the accused as you were responsible for only one forged document. The Crown submits that a community based sentence is appropriate.
Submission for Mr Mandeep Singh
[133] Your counsel submits that your offending was a case of misguided loyalty rather than any well thought out intention to undermine the democratic process, which is borne out by your limited involvement and the fact that you only
approached two friends. Your counsel agrees with the Crown that a community based sentence is appropriate.
[134] Your counsel submits that you have lost the chance of fulfilling your ambition to become a Police Officer through your offending and your family has had to deal with a great deal of anxiety and stress. Your counsel has submitted that in this context your sentence should be to come up for sentence if called upon, otherwise a sentence of community work may be appropriate.
Setting the starting point
[135] I come now to fix the starting point for your offending. I consider a sentence of 200 hours community work to be an appropriate starting point. This starting point reflects the fact that I consider your culpability to be less than that of Mr Paramjit Singh.
Adjusting the starting point
[136] I must now adjust this starting point to take account of any aggravating or mitigating factors which are relevant to you personally.
Aggravating factors
[137] In my view, there are no relevant aggravating factors.
Mitigating factors
[138] There are no relevant mitigating factors.
[139] I accordingly sentence you to 200 hours community work.
Mr Virender Singh
[140] Mr Virender Singh, you were found guilty of Count 13A, relating to three persons. Registration forms were downloaded for all individuals. One of those gave evidence that he registered to vote in Katikati, and never registered anywhere else.
He did not complete the ROE form and did not know anything about it. On 27 July
2010, you sent a text message with their details to Mr Daljit Singh.
Personal circumstances
[141] You are a 45 year old man and have three daughters. I do not have a pre- sentence report before me in relation to you as the Probation Officer became ill while completing the report and there has been insufficient time for another staff member to complete it. You are happy to proceed without a pre-sentence report.
Submissions
Crown submissions
[142] The Crown submits that by their verdict, the jury must be taken to have rejected your submission that you were only following your brother’s wishes. The Crown submits that an appropriate starting point is between 12 and 18 months imprisonment.
Submission for Mr Virender Singh
[143] Your lawyer submits that your conduct was limited to the sending of one text message containing your family’s details to Mr Daljit Singh. Your offending involved no planning or premeditation, and you received no financial or personal gain. Your lawyer says that the Crown’s starting point is manifestly excessive. An appropriate starting point is a community based sentence.
[144] Your lawyer submits that I should discharge you without conviction as your role was limited; you have shown remorse and accepted the gravity of the offending by standing down as the president of the New Zealand Kabbadi Federation; there is no likelihood of re-offending; you have prior good character; you have already suffered the consequence of not having your General Manager’s certificate renewed resulting in the forced sale of your liquor store; if you are convicted a consequence may be having your contract terminated for your courier business and impact on travel prospects.
Mr Virender Singh’s affidavit
[145] You say that as a consequence of being charged with this offending your application for renewal of your General Managers’ certificate was declined. You had to sell your business as a result. You then attempted to resume taxi driving. You were told if you were found guilty your taxi identification would be taken off you. You purchased a courier business instead. The contract to operate the business contains a clause enabling the company to terminate its agreement with you if you are convicted of any offence likely to adversely affect the business or the company’s standing. If your contract is terminated you may lose the money you have invested in the business. You will have no means of supporting your family.
[146] You resigned as President of the New Zealand Kabbadi Federation as a result of your conviction. A conviction may impact your ability to travel to attend Kabbadi tournaments. You say it will add complexity to travelling to Australia and you will not be able to enter Canada and if travel becomes too difficult you will need to reconsider your participation in the sport.
Setting the starting point
Discharge without conviction
[147] I remind you that I discussed the law relating to discharge with convictions earlier and I remind you that Mr Daljit Singh also sought a discharge without conviction and I declined to grant him one.42 However, I must still consider whether a conviction would be out of all proportion to the gravity of your offending and give your case independent consideration.
[148] The gravity of your offending is lower than Mr Daljit Singh’s offending because you were not a candidate in the election. However, electoral fraud is still relatively serious. I therefore class the gravity of your offending as being moderate.
[149] The consequences of a conviction are an inquiry into your conviction by the courier company, who will decide whether to terminate your contract. If your
42 See [29] – [53].
contract is terminated, this will have financial consequences for you and your family. Another consequence of conviction is that you may be prevented from entering Canada and may not be able to attend the Kabaddi tournament there. Travel to Australia may also be more difficult. You have already been forced to sell your liquor business.
[150] However, I consider that the consequence of an inquiry into your conviction by the courier company is not disproportionate to the gravity of your offending. I also do not consider that impacts on your travel prospects are disproportionate to the gravity of your offending. Unfortunately as your business has already been sold, I am not going to take that into account at this point as it was a consequence of you being charged, not of you being convicted. I therefore decline to grant you a discharge without conviction.
[151] I come now to fix the starting point for your offending. Like Mr Paramjit
Singh, I adopt a starting point of 300 hours community work.
Adjusting the starting point
[152] I must now adjust this starting point to take account of any aggravating or mitigating factors which are relevant to you personally.
Aggravating factors
[153] There are no relevant aggravating factors.
Mitigating factors
[154] I consider the fact that you had to sell your liquor shop to be a mitigating factor. I am prepared to give you a discount of 100 hours to recognise this.
[155] I accordingly sentence you to 200 hours community work.
Result
[156] Each of you please stand.
[157] Mr Daljit Singh, I sentence you to five months community detention and
200 hours community work. You are to report to your closest Probation Service
Centre at Otara, within 24 hours of sentencing. On the day of installation,
26 February 2014, you are to be present at the specified address, and await the arrival of the Probation Officer. You are to remain at that address during the curfew period from Monday to Sunday, from 10.00 pm until 7.00 am.
[158] Mr Gurinder Atwal, I sentence you to six months community detention and
200 hours community work. You are to report to Community Probation Services at
Otara, within 24 hours of being sentenced. On the day of electronic installation,
26 February 2014, you are to be present at the specified address and await the arrival of Probation Staff. You are to remain at the address specified from Monday to Sunday, 10.00 pm to 7.00 am.
[159] Mr Malkeet Singh, I sentence you to three months community detention and
200 hours community work. As I have not received a completed pre-sentence report for you, your sentence is to commence on a date to be specified by a Probation Officer following receipt of the information required by s 26A(2) of the Sentencing Act 2002. The Probation Officer is also to specify your community detention address. You are to remain at the address specified from Monday to Sunday,
10.00 pm to 7.00 am.
[160] Mr Paramjit Singh, I sentence you to 300 hours community work. [161] Mr Mandeep Singh, I sentence you to 200 hours community work. [162] Mr Virender Singh, I sentence you to 200 hours community work.
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Woolford J
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