Singh v Ministry of Business, Innovation and Employment
[2023] NZHC 2139
•10 August 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000159
[2023] NZHC 2139
BETWEEN RAJVINDER SINGH
Appellant
AND
MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Respondent
Hearing: 24 July 2023 Appearances:
L Cordwell for Appellant H Watts for Respondent
Judgment:
10 August 2023
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 10 August 2023 at 4pm.
Registrar/ Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Auckland
Lester Cordwell, Barrister, Auckland
SINGH v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2023] NZHC 2139 [10 August 2023]
Introduction
[1] Mr Rajvinder Singh (the appellant) pleaded guilty to a representative charge of providing false or misleading information to an immigration officer, being an offence against s 342(1)(b) of the Immigration Act 2009, having a maximum penalty of seven years imprisonment and/or a fine not exceeding $100,000.1 At his sentencing in the Manukau District Court on 31 March 2023 the appellant applied to be discharged without conviction pursuant to s 106 of the Sentencing Act 2002. His application was declined by Judge S Moala,2 and he was convicted and sentenced to 80 hours’ community work.3 He now appeals the Judge’s decision declining his s 106 application.
Offending
[2] The representative charge to which the appellant pleaded guilty alleged that between 2013 and 2017 he had provided sponsorship forms and supporting documentation in support of a series of work and residence visa applications submitted to Immigration New Zealand (INZ), knowing that the information he provided in the forms and documents contained the false name and details of the sponsored applicant.
Background
[3] The appellant is a 51-year-old Indian born male with New Zealand citizenship. For approximately 14 years he was the manager of the Nanaksar Thath Isher Darbar, a Sikh temple in Manurewa (the Temple). The organisation is a global charitable organisation devoted to serving and promoting the Sikh faith.
[4] The prosecution Summary of Facts outlines the two relevant types of visa involved in the appellant’s offending: student visas and work visas. Any person who is not a New Zealand citizen or residence visa holder who wishes to enter New Zealand is required to apply for a visa from offshore and apply for entry permission at the border, before being permitted to enter New Zealand under a visa waiver. The stated purpose of the student visa scheme is to contribute to New Zealand’s sustainable
1 Immigration Act 2009, s 355(1).
2 Ministry of Business, Innovation and Employment v Singh [2023] NZDC 6830.
3 Ministry of Business, Innovation and Employment v Singh [2023] NZDC 12362.
economic development by facilitating the entry of genuine students with a focus on attracting and developing students who have the skills and talent New Zealand needs. In relation to work visas, the objective of INZ’s work visa instructions is to contribute to developing New Zealand’s human capability base by facilitating the access of New Zealand employers and industry to global skills and knowledge. This complements the government’s education, training, employment and economic development policies but also ensures that employment in New Zealand of non-New Zealand citizens and residence class visa holders does not undermine the wages and conditions of New Zealand workers.
[5] The religious worker scheme comes within the work visa scheme. The scheme’s objective is to provide New Zealand communities with the opportunity to practise, maintain and advance their religious beliefs. To apply for a religious worker visa, an applicant must complete an application form, provide evidence of at least two years of training and/or experience relevant to the religious work, and be sponsored by a religious organisation that has the financial ability to meet all sponsorship undertakings. An applicant must also meet the health and character requirements of INZ.
The sponsored applicant
[6] The person sponsored by the appellant is Tarsem Singh, a 32-year-old Indian born male who was associated with the Temple whilst in New Zealand on a student visa from 2010 to 2011. He arrived in New Zealand on 2 March 2010. His student visa conditions stated that he was to study a diploma of information technology at Computer Power Institute New Zealand (CPI). However, Tarsem Singh did not attend any course at CPI and instead spent approximately eight hours per day at the Temple between March 2010 and July 2011. He volunteered to assist with the building of a retaining wall at the back of the Temple, and on Sundays he would work as part of the working bee group along with around 20 other volunteers. Through his involvement in this work he and the appellant became friends, and he would contact the appellant daily and assisted with any work required around the Temple as well as on the appellant’s own properties, as directed by the appellant.
[7] On 6 April 2011, Tarsem Singh submitted another student visa application to INZ. However information obtained by INZ from CPI revealed that Tarsem Singh had not attended any courses at the institute. Accordingly, on 7 June 2011 INZ declined the application on the basis that he was not a genuine student and his presence in New Zealand was unlawful. Tarsem Singh then departed New Zealand on 9 July 2011.
[8] On 30 August 2012, Tarsem Singh submitted a work visa application to INZ this time under the religious worker category, stating that he had received training in India as to religious duties. His application was sponsored by the Temple. In his application Tarsem Singh declared that he was working as an assistant priest with the Temple’s organisation in Delhi. The appellant completed the sponsorship form on behalf of the Temple in Auckland. Due to INZ concerns regarding Tarsem Singh’s immigration history in New Zealand, INZ declined his application.
The appellant’s offending
[9] Between September 2012 and February 2013, Tarsem Singh obtained a fraudulent birth certificate in the name of Simranjit Singh, born 13 September 1987, and by using the fraudulent birth certificate, Tarsem Singh then obtained a genuine Indian passport in the name of Simranjit Singh. On 5 February 2013, Tarsem Singh submitted another application to INZ for a religious worker visa under the false name of Simranjit Singh.
[10] The appellant sponsored the application on behalf of the Temple. INZ approved the religious worker visa application on 4 March 2013. Tarsem Singh, posing as Simranjit Singh, arrived in New Zealand on 1 April 2013 and was granted entry by INZ. Following his arrival he lived at the Temple and resumed assisting with daily work around the temple under the appellant’s supervision.
[11] On six occasions the appellant, on behalf of the Temple, sponsored applications by Tarsem Singh for a religious worker visa under the false name of Simranjit Singh, knowing that the information provided to INZ in the applications was false.
[12] On 10 July 2013 INZ received an application for a religious worker visa from Tarsem Singh using the false name of Simranjit Singh. The sponsorship form required
the appellant as the applicant’s sponsor, to provide and confirm the accuracy of personal information regarding the applicant. The sponsorship form stated the applicant’s name as being Simranjit Singh and his date of birth 13 September 1987. The form included a declaration signed by the appellant stating that the information supplied in the form was true and correct. The appellant’s declaration had been made and signed on 2 July 2013 before a Justice of the Peace who had witnessed his declaration. The sponsorship form also attached a letter signed by the appellant dated 9 July 2013, naming the sponsored person as Simranjit Singh. The appellant knew that the information contained in the sponsorship form and the sponsorship letter was false. INZ granted the application and issued the visa on 22 July 2013. It remained valid until 25 March 2014.
[13] The appellant subsequently provided four further false declarations and sponsorship letters to INZ in support of applications in the name of Simranjit Singh for further religious worker visas. They were submitted to INZ on: 20 February 2014; 5 March 2015; 15 February 2016; and 17 March 2017. In each case the appellant supported the visa applications with declarations and sponsorship letters to confirm that the personal details of the applicant were true and correct and that he was being sponsored by the appellant on behalf of the Temple. The appellant made the declarations and provided them and the sponsorship supporting letters which he signed, knowing that the information in the documents was false and the person named as Simranjit Singh in the visa applications and supporting documents, was in fact Tarsem Singh. In each case INZ granted the visa applications thereby permitting the named applicant to remain in New Zealand for a further period of 12 months.
[14] On 29 March 2017 Tarsem Singh under the false name Simranjit Singh made an application to INZ for New Zealand residency under the religious worker category. Once again the appellant sponsored this application on behalf of the Temple. In the sponsorship form the appellant provided false personal information regarding the applicant, and again provided a signed declaration stating that the information was true and correct. The appellant once again provided a sponsorship letter naming the sponsored person as Simranjit Singh. INZ granted the residency application on 17 June 2017 with conditions stipulating that Simranjit Singh was permitted to work as an assistant priest for the Temple in Auckland until 2022.
[15] The appellant’s offending was discovered when INZ undertook an investigation into Tarsem Singh. Prior to the INZ investigation, in April 2018 the appellant had resigned from the temple.
District Court decision
[16] Judge Moala commenced her s 106 decision by noting that the appellant had pleaded guilty to a representative charge of providing false or misleading information to an immigration officer, being an offence carrying a maximum penalty of seven years’ imprisonment and/or a $100,000 fine. She then referred to the written submissions filed in support and in opposition to the appellant’s s 106 application, and to the oral evidence she had heard from four witnesses who had provided affidavits in support of the appellant’s s 106 application.
[17] Having set out the facts of the appellant’s offending, the Judge then addressed the gravity of the offending. She considered the high level of premeditation to be a significant aggravating feature, together with the sustained conduct of the appellant encompassing seven fraudulent sponsorship forms which had been completed between July 2013 and March 2017.4 She described the offending as involving a direct challenge to the integrity of the immigration system of New Zealand, and undermining New Zealand’s sovereign control of its borders and ability to determine who should be granted a particular immigration status.5
[18] The Judge disagreed with the submission that the appellant did not obtain an advantage from his offending. She said:
[28] You have outlined in the affidavits filed that you did not obtain an advantage, but I agree with the prosecutor that there was an advantage in that you had the service of Tarsem Singh to undertake labour at the temple when you were in charge at the temple, as he had previously done in 2010 and 2011. This offending enabled Tarsem Singh to continue to provide unpaid labour at the temple and to assist and support you. This was given, it can be said, in exchange for you supporting his fraudulent applications.
[29] I take into account that this offending only came to light when Immigration New Zealand did an investigation in relation to Tarsem Singh. You have provided evidence to the Court that you resigned from the temple in
4 Singh v Ministry of Business, Innovation and Employment, above n 3, at [26].
5 At [27].
April 2018 and that you left the influence of your spiritual leader at that time. But you took no steps to draw this fraud to the attention of the authorities and it was not until you were charged that this offending came to light.
[19] The Judge then addressed the evidence of the appellant and three of his supporters to the effect that he had committed the offending because his spiritual leader and chairman of the Nanaksar Trust worldwide, Baba Amar Singh (referred to by the appellant as “Baba Ji”) had told or instructed him to do it. The Judge said:
[30] … You say that you were following his orders, that you were under his control and influence and manipulation. That you were scared of him because he had been violent towards you and you did what he told you to do because he was in charge. He was the kind of person who micromanaged every decision that was taken at the temple. There was no documentation to prove this but you and the other witnesses say that the way that this would happen is that he would call or one of his messengers would call constantly with instructions. You say that because he was like a god on earth, or your spiritual leader, you were under his control and this is why you completed and signed these forms, knowing that the information was false.
[20]The Judge then said:
[31] As I said to you when I questioned you when you gave evidence, it is difficult to accept that someone who was not even present in New Zealand often, who was in his seventies and eighties, would engender such fear in you that you would commit a crime in this country. I find it difficult to accept that he was micromanaging your every move, as well as all the other temples that he was in charge of all over the world. The concept of faith and belief and following a religious leader is not unique to the Sikh faith. Many of us have cultural and religious leaders that we hold in high regard. Our faith or faith in our leaders or in a church is not justification for breaking our law.
[32] The other witnesses who gave evidence supported your evidence that you were acting under his orders or control and that he could be aggressive and violent. I do not accept that this evidence reduces your culpability. You are a grown man who held a number of leadership roles at the temple. You are not a young person being influenced by a violent leader of a local gang. You helped set up the childcare service. You served on the Trust both for the temple and for that daycare centre. You were a leader and administrator at the temple. You handled all the financial information that was to be given over to the accountant. You dealt with community leaders, with the local council, with government departments. You were dealing with legal processes and rules all of the time. You knew you were breaking the law, but you did it anyway. Over and over. This is not a one-off mistake, as you describe it. This is a course of conduct over a number of years. Even if I were to accept that you were acting under instruction, it was clearly open to you to refuse an instruction to commit fraud.
[21] The Judge then turned to consider the personal mitigating factors of the appellant, noting that the appellant has no previous convictions and that he had
provided multiple letters of support written by friends and associates and by people from the community who all speak very highly of him and the work that he has done at the Temple and in the community. The Judge also noted that the information from the appellant’s family describing his as being a good husband and father. The Judge also noted and took into account that the appellant had pleaded guilty to the charge.
[22] The Judge said that having read the appellant’s affidavit and having heard him give his evidence she had concluded that he has limited remorse. The Judge noted that the appellant had sought to deflect blame for what he had done and what had happened onto his spiritual leader, Baba Ji. She further noted that the appellant had told the probation officer who interviewed him for the pre-sentence report, that he had signed the documents submitted to INZ “blindly”, and said he had not known the name had been changed.6 The Judge said that explanation to the probation officer clearly displayed his lack of acceptance or remorse for the offending. The Judge considered that taking all those factors into account, the seriousness of the gravity of the offending was appropriately assessed as moderate to serious for offending of its type.7
[23] The Judge then proceeded to consider the direct and indirect consequences of a conviction advanced by the appellant. These being that: the appellant would be ostracised by his community; his financial advisor’s license would be revoked with the consequence that would have to cease working as a financial advisor; and he would lose his employment position with the Police as a file management support officer.
[24] Addressing each of these matters, the Judge found that the appellant had failed to show there was a real and appreciable risk that any of the claimed consequences will ensue and that they are linked to the fact of conviction. She found that the matters relied on by the appellant are consequences of the offending he had pleaded guilty to rather than consequences of the entering of convictions.8
[25] Then turning to the disproportionality test in s 107 of the Sentencing Act, the Judge said that she was not satisfied that if the appellant was convicted of the offence,
6 At [35].
7 At [37].
8 At [43].
the direct and indirect consequences of a conviction would be out of all proportion to the gravity of his offending,9 and she therefore declined the application.10
[26] The Judge sentenced the appellant on the same day. She adopted a starting point of around 18 months’ imprisonment for the offending;11 allowed a discount of 25 per cent for his guilty plea; and a further discount of 20 per cent to take account of the appellant’s lack of any previous convictions, and his previous good character. Having regard to the good work the appellant has done in the past, and what he has given to the community, together with his potential, the Judge concluded that the principles and purposes of the Sentencing Act would be served by imposing a community-based sentence, and as I have noted above she entered a conviction and sentenced the appellant to 80 hours’ community work.12
Fresh evidence on appeal
[27] The appellant applies to adduce fresh evidence contained in two affidavits in support of his appeal. The first is an affidavit by appellant himself dated 6 July 2023 to which is exhibited correspondence from the New Zealand Police Association, the New Zealand Financial Services Group and the appellant’s insurance company referring to the consequences of his conviction. The second affidavit is by Professor Paul Morris, dated 6 July 2023. Professor Morris is a professor of religious studies in the school of social and cultural studies at the Victoria University of Wellington. In his affidavit he explains the nature of Sikh sectarian groups set within the wider context of Sikhism, and comments on the likely impact of a conviction on the appellant within and beyond the Nanaksar and Sikh communities in terms of Sikh notions of ethics and propriety within the framework of minority, migrant diaspora communities.
[28] Ms Watts for the respondent does not oppose the admission of the exhibits annexed to the appellant’s affidavit. However, although she accepts that they are fresh evidence in terms of the appeal she submits they are not particularly relevant. Ms Watts opposes the admission of the Professor Morris’ affidavit. She says that as
9 At [44].
10 At [45].
11 Singh v Ministry of Business, Innovation and Employment, above n 2.
12 At [5].
Professor Morris’ evidence could have been produced before the District Court it is not fresh evidence. Ms Watts submits that the significance of the appellant’s failure to produce Professor Morris’ evidence in the District Court is well illustrated by the oral evidence adduced before Judge Moala. She submits that in any event, Professor Morris’ evidence is not sufficiently relevant as this appeal turns on the consequences of conviction, and Professor Morris’ evidence does not assist with that. Ms Watts further submits that the Professor’s evidence goes beyond what is appropriate for expert evidence in criminal proceedings, by making assertions as to the appellant’s state of mind.
[29] The test for the admission of fresh evidence on appeal is settled. The overriding test is whether it is in the interests of justice to admit the evidence. The evidence must be sufficiently fresh, credible and cogent in the sense that it might reasonably have led to a different verdict.13
[30] The appellant accepts that Professor Morris’ evidence is not fresh in that it could have been obtained and filed prior to the hearing of the appellant’s s 106 application. However, Mr Cordwell submits that Professor Morris’ evidence is clearly credible as it provides this Court with expert opinion from a world-renowned authority in religious studies. He submits that the evidence provides the Court with objective expert evidence regarding the influence that the leader of the Nanaksar Sikh Temple, Baba Ji, can have on someone such as the appellant. He submits that is especially important given the remarks made by the Judge in the course of her questioning of the appellant, and her comment that she found it was hard to believe that the appellant was influenced. Mr Cordwell says Professor Morris’ evidence bridges the understanding divide that he says is evident from the Judge’s remarks.
[31] I consider that the evidence set out in the appellant’s affidavit and in the annexed exhibits is evidence that is fresh, credible and relevant to the Court’s assessment of the consequences of a conviction. And I admit the appellant’s affidavit and the exhibits as fresh evidence for the appeal.
13 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [116]–[126].
[32] While I agree with the respondent that Professor Morris’ evidence is not fresh as it is evidence that could have been obtained and produced to the District Court when the s 106 application was heard, I also consider that it is cogent and relevant as it provides the Court with information about Sikhism and addresses the existence of coercive control as alleged by the appellant and rejected by the Judge. Ms Watts also submits that the Court of Appeal’s observation in Carroll v R in relation to s 27 cultural reports is also relevant in the present context.14 The Court in Carroll commented that “such reports should not be produced for the first time on appeal. The questions whether a cultural report justifies any allowance in the sentence, and if so how much, are best answered by the trial judge.”15 The Court of Appeal said the proper course may be to remit the matter to the trial judge for re-sentencing.16 Ms Watts submits that rather than admitting Professor Morris’ affidavit evidence the matter the Court should remit the s106 application back to the District Court for re-hearing.
[33] I consider that it is in the interests of justice for the Professor’s evidence to be admitted for the purposes of this appeal. Although it does not provide substantively new information, it nevertheless provides relevant and supporting information to that provided by the appellant to the District Court Judge, and it does provide additional and authoritative evidence regarding those relevant issues. I therefore consider that it is in the interests of justice for Professor Morris’ affidavit to be admitted as fresh evidence for the purposes of the appeal. Leave is accordingly granted for both affidavits to be admitted as fresh evidence on appeal.
Law
[34] An appeal against a refusal to grant a discharge without conviction is a composite appeal against conviction and sentence.17 The appellant must show that a miscarriage of justice has occurred as a result of a material error by the Judge in entering a conviction, or that a miscarriage of justice has occurred as a result of an
14 Carroll v R [2019] NZCA 172.
15 At [8].
16 At [8].
17 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [6]–[16].
error by the Judge applying the correct principles found in s 107 of the Sentencing Act.18
[35] A discharge without conviction is governed by ss 106 and 107 of the Sentencing Act:
106Discharge without conviction
(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2)A discharge under this section is deemed to be an acquittal.
…
107Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[36] Section 107 is a “gateway through which any discharge without conviction must pass”.19 Section 106 is an evaluative judgment and is not a matter of discretion.20 The Court is required to consider: the gravity of the offence; the direct and indirect consequences of a conviction; and whether the consequences are out of all proportion to the gravity of the offence.21 The ordinary principles governing general appeals apply and this Court must reach its own conclusion on the merits.22
Submissions
Appellant’s submissions
[37] Mr Cordwell submits that the Judge erred in her assessment of the gravity of the offending as being of a moderate to serious level. He submits that the offending is properly assessed as being of a low level of seriousness. He submits the Judge’s reliance on the premeditation and period of the offending ignored the evidence that
18 at [12].
19 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].
20 At [11]; and Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [12]–[13].
21 Blythe v R, above n 23.
22 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
Baba Ji had an overriding influence on the appellant who when carrying out the offending was following Baba Ji’s instructions because he considered him to his spiritual leader. Mr Cordwell submits that the appellant’s admitted knowledge that the information he was providing to INZ was misleading and false, should have been mitigated by recognition of the pressure that had been brought to bear on him by his spiritual leader who had instructed him to sign the documents on behalf of the Temple.
[38] Mr Cordwell says there was no evidential basis for the Judge’s finding that Tarsem Singh provided unpaid labour in exchange for the appellant supporting his fraudulent applications. He says that Tarsem Singh worked full-time at the Educational trust and volunteered for the Temple trust, therefore he was a religious worker of the Temple and was not working for the appellant as the Judge found he was. Furthermore says Mr Cordwell, there is no evidence that the appellant received any direct or indirect advantage from his offending. Mr Cordwell says by characterising Tarsem Singh’s work contributions as unpaid labour, the Judge failed to fully acknowledge the concept of seva.
[39] Mr Cordwell further submits that the appellant’s conduct of not drawing Tarsem Singh’s fraud to the attention of authorities, and his failure to co-operate with INZ investigators, was the exercise of a fundamental human right of silence, which should not have been a factor in the Judge’s assessment of the gravity of the offending. And Mr Cordwell submits there was significant evidence of the appellant’s genuine remorse for the harm his offending has caused.
[40] Mr Cordwell submits that the influence of Baba Ji on the appellant was improperly characterised by the Judge as being an excuse whereas it should properly have been treated as being an explanation for the appellant’s offending.23 He says that there was evidence before the District Court of the emotional and mental manipulation of the appellant, as well as physical assaults at times, and that it was almost impossible for the appellant to question directions he was given by Baba Ji, let alone refuse to follow them. Mr Cordwell says the Judge failed to appreciate that Baba Ji could exert
23 Since the hearing in this Court Mr Cordwell has filed further submissions having received the evidential transcript of the District Court hearing before Judge Moala. I have considered both Mr Cordwell’s further submissions regarding the approach taken by the Judge during the hearing and the transcript of evidence provided.
such power over someone like the appellant to an extent where they would follow the instructions without question. He refers to Professor Morris’ evidence that Baba Ji’s influence over the appellant for decades is a most plausible and reasonable account of why the appellant considered himself as being without agency and having no choice but to follow the instructions of his god, which he repeatedly did, in spite of knowing his immigration declarations were untrue.
[41] Regarding the Judge’s assessment of the consequences of a conviction, Mr Cordwell says that the Judge should have accepted that a conviction would affect the appellant’s standing in the Indian community. He says the Judge also failed to appreciate the real risk that the Police Association would terminate the appellant’s position and his financial advisor’s license would be revoked. These consequences are described in the appellant’s further affidavit in which he confirms that as a direct result of the conviction being entered, he no longer has paid employment. Mr Cordwell also says that the appellant’s ability to obtain any form of insurance has now been affected by the entering into of a conviction.
[42] Mr Cordwell therefore submits that having regard to the matters set out in the appellant’s affidavit regarding the actual consequences of the conviction and having regard to the matters set out in Professor Morris’ affidavit, this Court can be satisfied that the consequences of the conviction wholly outweigh the gravity of the offending. And, that consequently the District Court Judge erred in her decision dismissing the appellant’s application for a discharge without conviction under s 106.
Respondent’s submissions
[43] Ms Watts submits that the Judge was correct to decline the appellant’s application. She says the Judge did not err in her assessment of the gravity of the offending and she was correct to find that the asserted consequences flowed from the offending, rather than the conviction she would impose.
[44] Regarding the issue of Baba Ji’s influence, Ms Watts submits that religious practices which contravene law are not a mitigating factor in sentencing,24 and she
24 R v Anderson (CA27/04), 23 June 2004 at [9].
notes that this Court has recently held ‘religious extremism’ to be an aggravating feature.25 Ms Watts submits that as a matter of public policy, religious influences that fall significantly short of compulsion should not amount to a substantially mitigating feature in sentencing, and she notes the appellant acknowledges that Baba Ji’s influence was not such as to give rise to a defence of duress.
[45] Ms Watts submits that the Judge accurately noted: the period of offending spanned over almost four years; the appellant is a person who is clearly capable and held positions of authority himself; Baba Ji was aged and largely not physically present in New Zealand; and the appellant was able to free himself of Baba Ji’s influence by leaving the Temple in 2018. Ms Watts says these factors all weigh against a finding that the appellant was controlled by Baba Ji to such an extent that it warranted being treated as a mitigating feature of the offending.
[46] Ms Watts submits that reductions for remorse are a matter of fact and judgment, and the Judge was entitled to consider the appellant’s blaming of Baba Ji as a reflection of his lack of substantial remorse for his actions. Ms Watts responds to the appellant’s submission that there was no evidence of Tarsem Singh providing unpaid labour, by noting that the agreed summary of facts states that he was engaged in a volunteering role at the Temple eight hours a day for 14 months.
[47] Ms Watts submits that the consequences of the conviction relied on by the appellant are consequences that arise because of his conduct, being significant dishonesty offending against a government entity. Both his positions with Police and as a financial advisor require a high level of trust and integrity and his offending is a breach of their code of conduct irrespective of whether the appellant is convicted.
Discussion
Professor Morris’ expert evidence
[48] The fresh evidence on appeal, including Professor Morris’ expert opinion that was not before the District Court Judge, does provides this Court with a helpful and
25 R v Singh [2022] NZHC 1188 at [35].
detailed explanation of the nature of the monitoring and control exerted by the spiritual leader Baba Amar Singh Ji (Baba Ji) over the activities of the Temple and the pressure that would have put on the appellant to comply with his instructions and carry out his wishes. Professor Morris explains:
Baba Amar Singh Ji (Babji), the spiritual leader and sant of the Nanaksar group in Auckland and beyond, exhibits characteristics of a Sikh sectarian sant, that is, absolute authority, being an embodiment of the truth and a conduit or gateway to God and his blessings, inhabiting a space between daily and divine life that blurs the distinction between sacred/religious and everyday decisions, and who is held to have a superhuman grasp of realities unavailable to normal beings. The sant is dedicated to the glory of God and uses his divine powers and authority to further the projects he deems necessary for such glory.
The history of Sikh sants includes a number of most volatile personalities and the affidavits fild (sic) in the District Court indicate that Baba Amar Singh Ji’s personality includes a short temper and being prone to physical and verbal outbursts, in person and on the telephone. And further that he has a controlling personality and micromanages all his ventures and that this was exerted as huge and sustained pressure on his chosen devotees via his close disciples.
The combination of extreme volatility and total control coupled with the unbridled authority of the sectarian Sikh sant would prove very hard to resist or challenge especially by a devotee like [the appellant].
…
In conclusion, it is my considered opinion that Babaji’s “undue influence” over [the appellant] for decades is a most plausible and reasonable account of why the [appellant] understood himself to have been without agency in having no choice but to follow the personal instructions of his God(man), and he repeatedly did so, in spite of being aware of the untruth of his immigration declarations as he faithfully followed Babaji’s hukam. While this would be a rare occurrence in modern post-Christian societies, this is less so in religious cultures and diaspora religio-cultural enclaves where such influences, while selective, are more evident.
[49] In his affidavit filed in the District Court in support of his s 106 application the appellant describes the strict and demanding manner in which Baba Ji exercised control over the Temple, its leaders, and its activities. He says:
The spiritual leader controlled the daily affairs of the Temple and micro- managed the routines. Being the head of the Trust, he would set the daily routines and practices to be followed. He micro-managed all the aspects of the Trust including operations, religious stage, religious workers, immigration and financial matters. I had to take his approval before carrying out any task at the Temple Trust.
…
I accept the summary of facts before the court. I pleaded guilty on 29 June 2022 in the Manukau District Court.
…..
I signed the immigration documents in question under the instructions and under the trust and reverence of the Spiritual Leader. I do, however, accept that I signed the sponsor documents on behalf of the Temple knowing that they were under another name of someone who I knew had previously been deported and was applying under another name. In my heart of hearts I knew the applications were misleading but I was so scared of the spiritual leader I signed them when he directed me to. I did not question him because I still believed anything he said or did was correct. I only wish I had had the strength to challenge him but at the time but [sic] I thought it was impossible especially after all the ways he had belittled me in the past either physically, emotionally or [financially] when I had tried to challenge him in the past.
I did not receive any direct or indirect benefit from signing the documents in question.
[50] I accept the expert evidence of Professor Morris and his helpful explanation of the context and the effect of the religious authority exerted by Baba Ji over the appellant regarding his work and activities at the Temple. I also accept the appellant’s evidence when he says he was directed by Baba Ji to provide support for Tarsem Singh’s applications to INZ for work visa and a residence visa to enable him to enter and live in New Zealand. However, while the coercive nature of Baba Ji’s authority and directions to an extent explains the appellant’s offending and thereby mitigate the gravity of the offending to a limited degree, it cannot and does not, justify or excuse it.
The gravity of the offending
[51] As the appellant acknowledges, he was well aware that the information he was providing to INZ in support of the visa applications made in the name of Simranjit Singh were false, and that the information was being provided with the intention of misleading INZ into believing the information was true and correct and in order to obtain work visas that would not be issued to Tarsem Singh had he been correctly identified as the real applicant. In my view it is important when assessing the gravity of the appellant’s offending to note that it involved repeated offending spread over a period of approximately four years. The appellant’s offending was carefully premeditated and involved not only the provision of false information regarding the true identity of the person applying for the visas, but also the creation of
a series of false sponsorship letters, and making a series of false declarations to Justices of the Peace. The appellant acted deliberately and dishonestly on multiple occasions each time knowing that the information and the documents he was providing was false and he did so intending to mislead the INZ officials responsible for considering and determining the visa applications.
[52] Offending of that kind is very serious because it subverts the integrity of New Zealand’s immigration controls and ability to determine, who is permitted to enter this country, for what purposes, and for how long. Being granted permission to enter New Zealand is a significant privilege, and conduct intended to mislead INZ and circumvent the immigration processes amounts to serious offending. The serious nature of this type of offending is evident from Parliament’s provision of the maximum penalty of seven years imprisonment and/or a $100,000 fine.
[53] The appellant was obviously well aware of the importance and value placed on New Zealand’s immigration controls, and he chose to disregard the law and to succumb to his spiritual leader’s wishes and directions. While the spiritual authority and coercive influence of Baba Ji by directing him to break the law in order to assist Tarsem Singh to gain illegal entry to New Zealand was the appellant’s apparent motivation, such considerations, irrespective of the religious significance to individuals, cannot displace or override their primary responsibility of complying with New Zealand’s laws, and any notion to that effect would be contrary to and undermine the rule of law.
[54] It is clear from the Judge’s decision regarding the s 107 analysis that the effect of the appellant having been influenced by others to offend, did not reduce the gravity of his offending to such a degree as to favour his discharge. The Judge commented that the appellant was a mature adult and an active participant in the offending.26 I respectfully agree. The appellant was well able to decide that he would not do what Baba Ji wanted him to do if it involved dishonesty and breaking the law. By resigning from the Temple Trust and terminating his connection with the Temple in April 2018, after concerns following Baba Ji appointing one of his relatives as a new trustee of the
26 R v Singh, above n 27, at [35].
Temple Trust, and because he was not prepared to tolerate what he considered to be Baba Ji’s “divide and rule” policy, the appellant demonstrated that he was well able to act independently of Baba Ji’s wishes and influence.
[55] While I accept that the religious context was no doubt a factor contributing to and mitigating the gravity of the appellant’s offending, I consider that the appellant always retained agency and an ability to act independently and in his own interests when he chose to. I consider that the influence and any instructions he received from Baba Ji or his messengers acting on his behalf, is a factor that reduces what I would otherwise consider serious offending to be moderately serious offending.
The direct and indirect consequences of a conviction
[56] In his affidavit sworn in support of his appeal the appellant says that since the District Court declined his s 106 application and entered a conviction on the charge, the financial advisor’s licence which he held in the name of his company V XL Ltd has been cancelled by NZ Financial Services Group Ltd, so that his ability to work and earn income as a financial advisor has been terminated. In relation to his employment with the New Zealand Police as a file manager, the appellant has exhibited a letter dated 25 May 2023 addressed to the Court from the Senior Legal Officer of the New Zealand Police Association regarding the consequences of a conviction on the appellant’s employment. The Police Association Legal Officer says:
… Following his guilty plea, Police moved to suspend [the appellant] and exclude him from the workplace. He has remained suspended throughout the Court process. He has not been able to return to work, even on restricted or alternative duties. This indicates to me that Police are looking at this matter as likely serious misconduct and that dismissal may result.
New Zealand Police, like any other employer, is required to take into account all of the circumstances when determining an appropriate employment outcome (Section 103A, Employment Relations Act 2000). While it is not determinative, the presence or absence of a conviction necessarily forms part of the relevant circumstances that must be considered by the Commissioner.
Where the offending is dishonesty related and a conviction is entered, it seems very likely that dismissal will follow. A discharge without conviction would, if granted, indicate the weight the Court has given the entirety of the circumstances. This may have some influence on the employment outcome for [the appellant].
[57] The appellant also explains that since advising his insurance company, AMI Insurance, of his conviction for providing false and misleading information to INZ, AMI has cancelled his insurance policies with the company.
[58] The appellant says that his work as a financial advisor and his employment as a file manager with the New Zealand Police were his only sources of income, and if his employment with the Police is terminated, he will be unemployed and unable to meet the majority of his financial obligations. The appellant says:
Since the conviction I have not socialised with anyone from the Sikh or wider Indian community. I have only spent time with my family. I feel that I have lost the respect of the community because I now have a criminal conviction that has been well publicised.
I know my community and they can be very judgmental about an issue like this. In the Punjabi community it takes a long time to build up respect, but a single wrong move can mean that it is gone in a minute. I think that such a reaction can be attributed to the orthodox and class culture which is deeply ingrained in the Punjabi community and to a certain extent the wider Indian community.
[59] In relation to the consequences of a conviction on the appellant it is important to recognise that the nature and responsibilities of his work as a financial advisor and also his work as a file manager with the New Zealand Police require integrity and honesty. The appellant has admitted the offending and that he acted dishonestly in relation to the provision of multiple visa applications over an extended period of four years. The significance of that admission does not change as result of the imposition of a conviction. The decision by NZ Financial Services Group Ltd to terminate the appellant’s financial advisors licence is the natural and expected consequence of his admission of offending involving dishonesty. Similarly, the decision taken by the appellant’s insurer to terminate his insurance policies.
[60] The adverse effects of the conviction on the appellant’s reputation and standing within the Sikh and Indian communities is the expected consequence of his admission of dishonesty and being convicted of offending against the provisions of the Immigration Act, they are certainly not disproportionate consequences due to the entering of a conviction.
[61] As is clear from the letter written on behalf of the New Zealand Police Association the New Zealand Police, as the appellant’s employer, is yet to determine whether or not the appellant will be retained or dismissed from his employment. That decision will no doubt be informed by an assessment of the nature and gravity of the appellant’s admitted offending as detailed in the agreed summary of facts and as referred to in the appellant’s affidavit. The sustained and repeated acts of dishonesty on the part of the appellant will obviously be relevant to any such assessment and the imposition of a conviction or absence of a conviction will not alter the nature and extent of the appellant’s admitted dishonesty.
The s 107 assessment
[62] Having regard to my assessment of the gravity of the appellant’s offending which I have found was moderately serious, and my finding that the termination of his financial advisors licence and insurance policies are the commonly expected consequences of his admission of dishonesty in relation to the provision of information to INZ, and also noting that the question of whether his continued employment with the New Zealand Police will be similarly informed by his admissions of dishonesty, I find that the consequences identified and relied on by the appellant are consequences of his dishonesty rather than consequences of the imposition of the conviction on the charge. I accordingly find that the adverse consequences of a conviction being entered are not out of all proportion to the gravity of the offending.
Conclusion
[63] The appellant has failed to show that a miscarriage of justice has occurred as a result of a material error by the Judge in declining to grant the appellant’s application for a discharge pursuant to s 106 of the Sentencing Act and entering a conviction on the charge of providing false or misleading information to an immigration officer, being an offence against ss 342(1)(b) of the Immigration Act. The appellant has also failed to show that a miscarriage of justice has occurred as a result of an error by the Judge applying s 107 of the Sentencing Act. As this is the pre-requisite to considering the Judge’s decision pursuant to s 106 of the Act, the appellant’s appeal necessarily fails.
Result
[64]Mr Singh’s appeal against conviction and sentence is dismissed.
Davison J
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