Balajadia v R [2018] NZCA 483 (8 November 2018)

Last Updated: 3 December 2018

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA117/2018 [2018] NZCA 483

	BETWEEN	VIRGIL BALAJADIA Appellant
	AND	THE QUEEN Respondent

CA183/2018
	BETWEEN	LUISITO BALAJADIA Appellant
	AND	THE QUEEN Respondent

Hearing:	25 July 2018
Court:	Asher, Courtney and Moore JJ
Counsel:	P E Dacre QC for Appellants R M A McCoubrey and J T Parry for Respondent
Judgment:	8 November 2018 at 10 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal in CA183/2018 is granted.
B The appeal against sentence in CA117/2018 is dismissed.
C The appeal against sentence in CA183/2018 is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Moore J)

Introduction

[1] Following a five-day jury in the District Court at Auckland, Mrs Virgil Balajadia and Mr Luisito Balajadia were found guilty of multiple offences under the Immigration Act 2009. Mrs Balajadia was convicted of two charges of exploitation of a temporary worker, relating to a serious default under the Holidays Act 2003 and the failure to pay wages under the Minimum Wage Act 1983,^[1] and five charges of providing false or misleading information, in the form of individual employment agreements, to Immigration New Zealand (INZ).^[2] Mr Balajadia was convicted of two charges of exploitation of a temporary worker and two charges of providing false or misleading information to INZ.
[2] On 8 February 2018 Judge Dawson sentenced Mrs Balajadia to two years and two months’ imprisonment and Mr Balajadia to eight months’ home detention.^[3] They both appeal their sentences on the grounds that the Judge erred in fixing a manifestly excessive starting point and failed to give sufficient credit for remorse.^[4]
[3] Mr Balajadia’s notice of appeal was filed 26 days out of time and thus requires leave. The Crown did not oppose the application. We are satisfied that Mr Balajadia’s appeal, both in respect of the starting point and the failure to consider a settlement agreement, is arguable and accordingly grant leave.

Factual background^[5]

[4] Mr and Mrs Balajadia are husband and wife. They immigrated from the Philippines in 2001 and are now New Zealand citizens. Mrs Balajadia is the sole

shareholder and director of 3 Kings Food Distributors Ltd (3 Kings), which trades as 3 Kings Restaurant (the Restaurant).^[6]

[5] Since 23 July 2011, the appellants have, on nine occasions, engaged Filipino nationals to come to New Zealand to work in their business. Five are the victims in this matter: Edgar Malig, Alejandro Eligo, Norman Vasquez, Resnie Presente and Joanne Sison. They are victims because Mr and Mrs Balajadia failed to comply with various conditions imposed by New Zealand employment law on employers of foreign nationals, and in doing so caused them loss. These rules require the provision of documentation including an employment agreement accompanying any application for a work visa to demonstrate that the employer will comply with the relevant employment laws. In each case, the victims’ working conditions were substantially worse than was contracted for in the employment agreements provided to INZ.
[6] Mr and Mrs Balajadia’s treatment of the five men followed a similar pattern. Each was contacted when they were working as chefs in the Philippines or elsewhere overseas. Each was informed there was a job available working as a chef at the Restaurant. Mr and Mrs Balajadia, either themselves or through an agent, arranged to interview the candidates. The prospective workers were told they would be paid $16 an hour, payable fortnightly. An individual employment agreement was sent to each. It was signed by Mrs Balajadia and included a job description, letter of support and job offer. The agreements typically provided that the employee would work for a minimum of 30 hours per week. Mr Vasquez was told he would work approximately 6 hours a day, 6 days a week. Mr Malig was told he would not be working more than 44 hours per week. The appellants sent the documents, including the employment agreements, to INZ in support of the workers’ visa applications.
[7] Once the applications were approved, the workers flew to New Zealand. They were collected at the airport and in all cases were immediately taken to the Restaurant to start work. While there were some differences between victims, typically each working week actually involved 12 hours per day, six days a week. The workers were required to undertake various restaurant duties including food preparation, cleaning the restaurant, cooking meals and washing dishes. But they were also required to assist in Mr and Mrs Balajadia’s home. Contrary to the express terms of their employment agreements they worked approximately 60 to 70 hours a week but were paid for only 40 hours.
[8] Mr Vasquez worked for approximately seven months before returning to the Philippines on 28 December 2013. Mr Sison only worked for three days, spending 12 hours a day at work over that period. He received no pay before he was told by Mrs Balajadia not to come to work anymore. Mr Eligio’s employment conditions were similar. On his days off he cleaned the appellants’ home and the Restaurant. He worked in the appellants’ employment for approximately 19 days before returning to the Philippines.
[9] Mr Presente worked similar hours to the others over an eight-month period. When the Restaurant hosted functions his hours were even longer. He also worked on public holidays without receiving time and a half. He was not paid for the last two weeks of his employment. Before he received his first pay he was required to repay the appellants the costs of his airline ticket and visa application. Contrary to the terms of his employment agreement he was paid monthly.
[10] It was Mr Malig who received the worst treatment at the appellants’ hands. He was employed for 15 months between 17 April 2014 and 6 July 2015. During this period he worked six days a week for at least 10 hours a day with no breaks. He was paid for only 40 hours a week. Sometimes the appellants withheld his wages, particularly after he indicated he wished to leave their employment. This affected his ability to remit funds back to his family who he was supporting. In total he was underpaid approximately $15,108 in wages. He was not paid any holiday pay and was owed approximately $5,085 on that account.
[11] While employed by the appellants he was required to live with Mr and Mrs Balajadia in a converted garage at their home. This he shared with another chef. He paid the appellants $150 per week in rent. Mr Malig was required to abide by a series of prescriptive house rules. He was prohibited from socialising with others, particularly other Filipinos, and was not permitted visitors. He was allowed only to leave the house for periods not exceeding 30 minutes. Where he was permitted to go was prescribed, and when away he was required at all times to be accompanied by one or more of the appellants’ children. In addition to his restaurant tasks he was required to clean the appellants’ house on Mondays when the Restaurant was closed. He was threatened that if he did not perform his duties to his employers’ satisfaction he would be reported to the police and sent back to the Philippines.
[12] Mr Malig’s employment agreement provided for two weeks’ termination by either party. In September 2014 he told Mr and Mrs Balajadia that he wanted to return to the Philippines. Mrs Balajadia told him that if he left he would be reported to the police and would go to jail. Over the following months Mr Malig made numerous attempts to leave but was told that he could not until he had found a replacement. Mr Malig eventually resigned on 13 June 2015. That day his internet access was cut off. He eventually left on 6 July 2015 and reported his experiences to the Philippines Consulate.

Were the starting points too high?

[13] Having observed that any sentence imposed needed to send “[a] very clear message ... that this type of deception to a Government department and the flagrant abuse of workers’ rights cannot be countenanced”, the Judge identified three aggravating factors: the extent of harm, the abuse of trust and premeditation.^[7] For Mrs Balajadia he fixed a starting point of 30 months’ imprisonment. Acknowledging Mr Balajadia was not the lead offender, the Judge fixed a starting point of 20 months’ imprisonment.
[14] The Judge’s sentencing notes are relatively brief. For example, a lead charge to which the starting point relates is not identified. However, that was not the focus of the submissions made by Mr Dacre QC for the appellants, and we are satisfied it does

not amount to an independent error. Mr Dacre instead submitted that the starting points were excessive as a result of the Judge:

(a) focusing on the working and living conditions of the victims, which he submitted assumed only limited relevance given the appellants were only convicted of exploitation in respect of Mr Malig, but nevertheless appear to have influenced the starting point; and
(b) following Ministry of Business, Innovation and Employment v Jain,^[8] R v Kurisi^[9] and Ministry of Business, Innovation and Employment v Bal^[10] which involved “multiple exploitation” and “significant aggravating factors” not present in Mrs Balajadia’s offending.
[15] In setting the seven-year maximum penalty for the exploitation charges Parliament plainly intended that the exploitation of vulnerable workers for commercial gain warranted denunciation. As the Minister of Immigration told Parliament during the first reading of the Immigration Amendment Bill (No 2),^[11] which introduced the exploitation charges into the Immigration Act, the provisions “demonstrate that this Government is taking the issue seriously and will come down hard on employers who take advantage of vulnerable workers” so that employers who exploit lawful migrant workers “face hefty sanctions”.^[12] We consider it is no coincidence that the maximum penalty for this offending, seven years’ imprisonment, matches that for providing false and misleading information.

Were the workers other than Mr Malig “victims”?

[16] The Judge treated the extent of the harm to the workers generally as an aggravating factor, referring to them all as “victims”.^[13] He commented that they worked very long hours, were underpaid, and at times some were not paid at all. This was undoubtedly an aggravating factor. The charges for misleading INZ do not explicitly mention the treatment of the workers, but effectively featured two classes of victim: INZ, and the workers. Although not expressly covered in argument we are satisfied that the workers are victims in terms of s 4 of the Victims’ Rights Act 2002; they are persons who have suffered loss or damage to property as a consequence of Mr and Mrs Balajadia’s misleading of INZ. This is because the definition of victim includes a person who “through, or by means of” an offence committed by another person, suffers loss of, or damage to, property.
[17] This definition mirrors the equivalent part of the definition of victim in the Sentencing Act 2002.^[14] It is also substantially similar to the threshold for persons who may benefit from an order for reparation under s 32 of the Sentencing Act.^[15]
[18] We consider the loss of wages or the loss of entitlement to wages amounts to a loss of property within the meaning of s 4 of the Victims’ Rights Act. Property is not defined in the Victims’ Rights Act. However, in the context of reparation Holland J in Jane v Police concluded that property must include a chose in action and a right to recover a debt.^[16] There is no indication that the legislature intended to depart from the approach in Jane in enacting the Sentencing Act and the Victims’ Rights Act. Moreover, a liberal interpretation accords with the United Nations Declaration of Basic Principles for Victims of Crime and Abuse of Power 1985, which defines victims as including people who have suffered “economic loss”.^[17] Adopting the Jane approach, each worker appears to have a chose in action for non-payment of wages in accordance with their employment agreements which provided they would be paid an hourly rate of $16 an hour.
[19] In R v Donaldson this Court considered the meaning of “through or by means of an offence” under s 32 of the Sentencing Act.^[18] Preferring the “broad commonsense” approach to the section taken by the English Courts,^[19] the Court took the retention of the phrase in the Sentencing Act as “an endorsement of the liberal and non-technical interpretation” of the phrase under predecessor sections.^[20] It explained the phrase “through or by means of an offence” in the following way:

[37] The statutory phrase is in two disjunctive parts. The first is damage or harm caused “through” an offence. And the second is damage or harm caused “by means of” an offence. “Through” conveys a more direct connection between the offence and the damage or harm. In the present case, for example, damage to the premises in obtaining entry, or loss arising from the theft of items, would be caused through the offence itself.

[38] By contrast, the words “by means of” the offence contemplate a less direct association with the burglary. They capture damage or harm closely associated with the offence, although not necessarily arising from the very acts which constitute the definition of the offence. For example, a receiver who takes possession of a stolen car, and proceeds to dismantle it, causes damage or loss by means of the offence, albeit through actions committed when the offence was completed. Likewise in this case the fire damage was caused in close connection with the burglary and therefore, by means of it.

(Emphasis added.)

[20] Adopting this approach it is not necessary that the damage or harm arises from the very acts which constitute the definition of the offence. That includes the loss of entitlement to wages suffered by the victims in this case. Their loss does not arise directly from the elements of the offending, that is the provision by Mr and Mrs Balajadia of false and misleading information to INZ. However, this offending was part of their overarching scheme to bring workers into this country, exercise control over them, and subject them to inhumane and substandard working and living conditions. The provision of false and misleading information enabled the appellants to cause the victims’ loss; indeed the offending and subsequent mistreatment of the victims appear to be part of the same scheme and intended consequence of the offending.
[21] For these reasons we are satisfied the Judge was entitled to take into account the loss of or damage to property suffered by the victims as well as the effects of the offending on them.
[22] The other victim was INZ. What was at stake was the integrity of this country’s immigration processes and the need to prevent persons from being brought into this country under false pretences. The Judge went on to specifically refer to Mrs Balajadia having “abused the trust of the New Zealand Immigration Service who are responsible [for maintaining] the integrity of the New Zealand system of immigration”.^[21] The deliberate and repetitive nature of the offending over a sustained period of time, and the high degree of premeditation, were also aggravating factors.
[23] There is no rigid approach the Judge was required to adopt when assessing the seriousness of the offending. As Mr Dacre responsibly accepted, the treatment of all the victims is an intrinsic part of the context of the offending. It was the appellants’ misleading of INZ which allowed them to bring the victims into this country and subject them to substantial mistreatment. However, we accept that the Judge may have gone too far when, in relation to the charges of misleading INZ, he referred to an “abuse of trust in relation to the victims”.^[22] Only Mr Malig fell into the category of exploitation.
[24] Overall, however, this was only one of the aggravating factors taken into account by the Judge. And given our finding that the starting points could have been higher, if the Judge did fall into error by placing excessive weight on the extent of exploitation of all workers, it was not significant in terms of the end sentences arrived at.

Are the starting points consistent with comparable authorities?

[25] There is no appellate sentencing authority for this type of offending, though comparable offending has been considered in seven cases where starting points have ranged from three years and six months’ imprisonment to 15 months’ imprisonment. The cases that we refer to do not necessarily involve the same charges as were laid here. However, given the maximum sentence for providing false and misleading information to INZ is the same as the maximum sentence for exploitation, the decisions have value for comparative purposes.
[26] The sternest starting point was adopted in Kurisi.^[23] There were 13 victims. The offending occurred over a three-year period. An associate of Mr Kurisi advertised overseas for fruit pickers, offering inducements that included an hourly rate of NZ$17, hotel accommodation on the first night, food and accommodation for the first week and work which involved kiwifruit picking. Although he was not directly involved in enticing the workers to New Zealand, Mr Kurisi had a significant role in arranging their work once they arrived. He also arranged work for tourists seeking employment in New Zealand. The workers were in fact required to undertake kiwifruit vine pruning, a task considerably more physically demanding than picking fruit. The accommodation was described by Heath J as “shamefully poor”.^[24] The workers were required to pay for their accommodation and transport to and from the orchard with these costs being deducted from their wages. Rather than being calculated on an hourly basis, payment was made according to the area pruned. As a consequence, the workers received paltry rewards for their efforts. Heath J fixed the starting point at three years and six months’ imprisonment.^[25]
[27] In Jain Judge Kiernan set a starting point of three years and four months for the main offender, Ms Jain, where the offending involved four victims over a period of approximately 18 months.^[26] The charges related to the treatment of four workers at the Masala chain of restaurants which Ms Jain managed. The workers were required to work for long hours for less than the minimum wage. Starting points of 18 months and 15 months were adopted for Mr Grewel and Mr Chahill^[27] respectively, two of Ms Jain’s co-defendants whose culpability was lower and who faced fewer charges.
[28] Bal involved the mistreatment of six victims over a period of 14 months.^[28] The detail of the offending is not apparent from the sentencing notes but the Judge took a starting point of three years’ imprisonment, observing that the legislation is designed to prevent the very vulnerable from being exploited.^[29]
[29] In R v Sriphet Judge Andrée Wiltens sentenced Ms Sriphet for offending involving two victims, who Ms Sriphet recruited from offshore.^[30] A 30-month starting point was adopted.
[30] In Ministry of Business, Innovation and Employment v Imai Japanese Food Services Ltd Ms Imai pleaded guilty to charges involving seven workers, who the Judge considered were vulnerable and were exploited for commercial gain.^[31] A starting point of 18 months’ imprisonment was set. Although the Judge referred to the starting point in Sriphet, he did not give reasons for why he adopted a significantly lower starting point.^[32]

Mrs Balajadia’s starting point

[31] We see Ms Jain’s offending as on par with Mrs Balajadia’s. Although Mrs Balajadia was convicted of fewer charges, in Jain there were fewer victims and the duration of the offending was shorter. Furthermore, both Ms Jain’s and Mrs Balajadia’s offending involved the misleading of INZ and consequent exploitation of vulnerable workers in the context of a commercial enterprise which they owned and operated.
[32] We accept the scale of Mr Kurisi’s offending places the culpability in that case higher. He pleaded guilty to representative charges of exploitation and breach of visa conditions. The nature of the work, the degrading and substandard accommodation and associated indignities suffered by all victims elevated the culpability. However we do not accept that the differences are as significant or so readily distinguishable from the present case as Mr Dacre submitted.
[33] To the extent it is possible to derive much assistance from Bal and Sriphet, the scale of the offending in those cases appears to be at a lower level than the present. And as previously noted, it is difficult to understand how the Judge in Imai found a starting point of 18 months’ imprisonment appropriate. Finally, the cases of Mr Grewel^[33] and Mr Chahill^[34] simply reinforce the proposition that starting points of between 15 to 18 months’ imprisonment remain appropriate for less serious or accessory offending.
[34] Here the Judge fixed a starting point of 30 months, or 35 per cent of the statutory maximum, for the lead offender in a serious case of deception and exploitation. The workers recruited by Mr and Mrs Balajadia were induced to come to New Zealand by false promises of a new and better life in this country. They were recruited primarily from the Pampanga District in the Philippines, a poor area where work opportunities are scarce. Most were supporting their families in the Philippines. In their victim impact statements they described Mrs Balajadia as extremely abusive and controlling.
[35] Having lived in New Zealand for 17 years and gained citizenship, Mr and Mrs Balajadia knew and understood this country’s societal norms. Mrs Balajadia cynically exploited her workers’ lack of familiarity with local processes and rights. An example of this was when she threatened Mr Malig with police action in the event he contravened the rules she set. Indeed, the rules imposed by the appellants were plainly designed to isolate and disempower their workers. The Judge, who had the advantage of hearing the evidence and seeing the witnesses, described the workers as working and living in conditions not far removed from a modern day form of slavery.^[35] In our view those comments were apt, insofar as they related to the exploitation charges.
[36] Additionally, Mr and Mrs Balajadia abused the trust of INZ which relies on the honesty of those it deals with to maintain the integrity of New Zealand’s immigration processes. Moreover they did so to achieve commercial gain.
[37] In terms of aggravating factors, as we have noted, there was a very high level of premeditation: this was deliberate and repetitive offending over a sustained period; and this conduct was undertaken for the appellants’ commercial advantage. Taking these factors into account we are satisfied that the 30-month starting point for Mrs Balajadia was well within the available range. Indeed, the starting point was lenient in the circumstances and could easily have been as high as 40 months.

Mr Balajadia’s starting point

[38] In adopting a 20-month starting point for Mr Balajadia the Judge expressly referred to his lower level of culpability, noting he had essentially gone along with his wife’s offending.^[36] He was convicted of only four charges against two victims over a period of 18 months.
[39] In respect of Mr Balajadia’s offending the most comparable cases are those of Mr Chahill and Mr Grewel where starting points of 15 and 18 months’ imprisonment respectively were fixed. While sterner than the starting points adopted in those decisions, we are satisfied a starting point of 20 months’ imprisonment was justified having regard to the level of exploitation of Mr Malig. Mr Balajadia, with his wife, misrepresented to Mr Malig the nature of his employment in New Zealand. He also misled INZ by providing an employment agreement recording those terms. For 15 months Mr Malig was grossly overworked and underpaid. He was subjected to indignities, threats and his freedom to go where he wished and associate with whomever he wished was wrongly and arbitrarily curtailed. Additionally, as we have observed, Mr Balajadia and his wife stood to gain commercially from this offending.

Were adequate discounts applied for personal circumstances?

[40] The Judge gave Mrs Balajadia a two-month deduction for good character and a further deduction of two months for her offer to pay reparation.
[41] While we agree with Mr Dacre that an allowance for Mrs Balajadia’s previous good character may well have justified greater credit, any such benefit is more than subsumed by the starting point which favoured Mrs Balajadia.
[42] Neither are we convinced that a separate and discrete discount for remorse was available. While Mrs Balajadia made some payments to Mr Malig on account of wages not paid in accordance with his employment agreement, the overtime component (which formed the basis of the charges Mrs Balajadia was convicted on) remained unpaid prior to sentencing. Furthermore, the pre-sentence report described Mrs Balajadia as not expressing clear remorse; she offered rationalisations for her actions and presented herself as the victim of tough financial circumstances with a struggling business which she now operates without any other staff.
[43] We do not regard the discounts for Mr Balajadia’s previous good character and remorse as inadequate. Combined, they amounted to a 20 per cent discount.

Result

[44] The application for an extension of time to appeal in CA183/2018 is granted.
[45] The appeal against sentence in CA117/2018 is dismissed.
[46] The appeal against sentence in CA183/2018 is dismissed.

Solicitor:
Meredith Connell, Auckland for Respondent

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^[1] Immigration Act 2009, s 351(1)(a)(i) and (ii). The maximum penalty is seven years’ imprisonment and/or a fine not exceeding $100,000.

^[2] Section 342(1). The maximum penalty is seven years’ imprisonment and/or a fine not exceeding $100,000.

^[3] Police v 3 Kings Food Distributors Ltd [2018] NZDC 2173. Both were also ordered to pay reparation of $7,200 each.

^[4] Mrs Balajadia’s notice of appeal stated that she also wished to appeal her convictions. However, the submissions filed on her behalf address sentence only. We therefore treat the appeal against conviction as abandoned.

^[5] For the purposes of the appeal the appellants were content to rely on the summary of facts.

^[6] 3 Kings was found guilty of two charges of exploitation of a temporary worker. It reached a settlement with the victim, Mr Malig, and was subsequently convicted and discharged.

^[7] Police v 3 Kings Food Distributors Ltd, above n 3, at [7]–[10].

^[8] Ministry of Business, Innovation and Employment v Jain [2015] NZDC 21123.

^[9] R v Kurisi [2017] NZHC 62.

^[10] Ministry of Business, Innovation and Employment v Bal [2016] NZDC 1389.

^[11] Immigration Amendment Bill (No 2) 2013 (16-1).

^[12] (19 November 2013) 695 NZPD 15077–15078.

^[13] Police v 3 Kings Food Distributors Ltd, above n 3, at [8]–[9].

^[14] Sentencing Act 2002, s 4.

^[15] The Supreme Court has confirmed that these definitions are “the same or substantially the same”: Kapa v R [2012] NZSC 119, [2013] 3 NZLR 1 at [27] and [90].

^[16] Jane v Police HC Christchurch AP243/87, 9 March 1988 at 9.

^[17] Kapa v R, above n 15, at [92]–[93], citing United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power A/Res/40/34 (1985), annex at [1].

^[18] R v Donaldson CA227/06, 2 October 2006.

^[19] At [29] and [36], citing Bond v Chief Constable of Kent [1983] 1 WLR 40 (QB) at 44.

^[20] At [32].

^[21] Police v 3 Kings Food Distributors Ltd, above n 3, at [8].

^[22] At [9].

^[23] R v Kurisi, above n 9.

^[24] At [14].

^[25] At [32].

^[26] Ministry of Business, Innovation and Employment v Jain, above n 8.

^[27] R v Chahill [2016] NZDC 21477.

^[28] Ministry of Business, Innovation and Employment v Bal, above n 10.

^[29] At [2] and [5].

^[30] R v Sriphet [2015] NZDC 6154.

^[31] Ministry of Business, Innovation and Employment v Imai Japanese Food Services Ltd [2016] NZDC 26637 at [7].

^[32] At [6].

^[33] Ministry of Business, Innovation and Employment v Jain, above n 8.

^[34] R v Chahill, above n 27.

^[35] Police v 3 Kings Food Distributors Ltd, above n 3, at [14].

^[36] At [16].