R v Kaur DC Auckland CRI-2010-004-1813 [2011] NZDC 1599 (29 September 2011)

Last Updated: 3 October 2016

IN THE DISTRICT COURT AT AUCKLAND

_{CRI-2010-004-001813}

THE QUEEN

v

PARAMJIT KAUR SHINDER KAUR JAGROOP SINGH MANPREET SINGH

Hearing: 29 September 2011

Appearances: S Waalkens for the Crown

M Dixon for the Prisoner P Kaur

P Le'Au'Anae for the Prisoner S Kaur

G Bradford for accused J Singh

G Bradford (on behalf of C Robertson) for accused M Singh

Judgment: 29 September 2011

_{NOTES OF JUDGE M-E SHARP ON SENTENCING}

Introduction

[1] I have before me for sentencing the following people: Manpreet Singh, Shinder Kaur, Paramjit Kaur and Jagroop Singh. They all pleaded guilty on the first and second mornings respectively of a trial for immigration fraud.

[2] Whilst there was not a sentence indication as such given, there was a discussion between the Court and counsel as to what possible sentence or range of sentences might be imposed, and guilty pleas were entered on the basis of my participation in that discussion and an indication that in principle, I would not,

_{perhaps, be averse to home detention.}

R V PARAMJIT KAUR DC AK CRI-2010-004-001813 29 September 2011

The offending

[3] The charges that these four people face were all brought under the

Crimes Act 1961, Immigration Act 2009 and the Citizenship Act 1997.

[4] Jagroop Singh pleaded guilty to knowingly producing a false passport obtained fraudulently, a representative charge with a maximum penalty of seven years’ imprisonment. He also pleaded guilty to a representative count of supplying false information to an immigration officer in a residency application, maximum penalty seven years’ imprisonment.

[5] Manpreet Singh pleaded guilty to supplying false information to an immigration officer in a residence application on a representative basis, seven years’ maximum penalty. He also pleaded guilty on a representative basis knowingly producing a residence visa obtained fraudulently, seven years’ imprisonment maximum penalty.

[6] Paramjit Kaur pleaded guilty to using a document for a benefit, that is an application for residency and knowingly producing a false passport obtained fraudulently, again a representative count, as well as knowingly making a false statement in a New Zealand application form, five years’ imprisonment maximum fine, and supplying false information to an immigration officer in a residency application, maximum penalty, seven years’ imprisonment.

[7] Shinder Kaur pleaded guilty to knowingly producing a false passport obtained fraudulently on a representative basis, seven years’ imprisonment, and supplying false information to an immigration officer in a residency application, that too was a representative count, seven years’ imprisonment was the maximum penalty.

[8] I do not propose to set out the facts involved in this offending, but because they are so important I intend the summaries of facts upon which they pleaded guilty to be attached to these sentencing notes. Suffice for the purposes of this sentencing

exercise to say that all four defendants are Indian nationals who either entered the country illegally on the basis of false information:- names, or entered the country legitimately but later applied for residency on a false basis.

[9] The facts are detailed and complex. There is quite a connection amongst the four which is evident when one reads the summaries of fact, and I should also say that this is serious offending which must be marked by penalties which satisfy the necessity for deterrence which I consider to be the most important feature of this type of offending.

The aggravating and mitigating features of the offending

[10] The Crown names the following and I do not understand defence counsel to contest any of these:

The sustained deception

[11] Paramjit Kaur was able to remain in New Zealand unlawfully from 2002 and used her immigration status to obtain a work visa. She also used her immigration status to bring the other prisoners into New Zealand.

The harm of the offending

[12] As the Crown says, and I concur completely, the use of false identities has severe consequences for the integrity of our immigration system which to a large extent does rely on the honesty of the people making applications to travel to and from New Zealand and obtain both visas and citizenship.

Mitigating features of the offending

[13] Shinder Kaur and Jagroop Singh are very elderly and have poor health. The

Crown accepts, as do I, that they are the least culpable of the four offenders.

[14] I consider it to be a mitigating feature of the offending of all defendants that there was involved another Indian national who purports to be an immigration agent

and who has quite clearly defrauded these four people and, if not caused, certainly contributed to their offending in such a way as to make him legally culpable. His name is Bajitar Singh. It is to be hoped that Immigration will catch up with him eventually. Had it not been for his dishonesty and greed, I am quite sure that none of these defendants would have offended. As it is, all four defendants appear to have had blind faith in Mr Bajitar Sing. They trusted him implicitly. They did whatever he asked of them. They accepted all of his assurances and whilst all of them, I am satisfied, realised that there were falsehoods being perpetrated upon the New Zealand Immigration Service in the various applications that they made and the various names given to them in their passports and the like, I am satisfied that they did so in reliance on Mr Singh who was, quite frankly, not to be trusted. Their turning a blind eye, because of their blind faith in him, a fraudster, is what has brought them to this pass.

Personal mitigating features

[15] All pleaded guilty and although guilty pleas were entered the first and second mornings of a scheduled seven day trial, the Crown accepts that very considerable resources were saved by the guilty pleas, and there were negotiations over a long, long period of time between the Crown and defence. These culminated ultimately in the guilty pleas, so notwithstanding R v Hessell [2010] NZSC 135; [2011] 1 NZLR

607, I am prepared to consider that they should be given some discount for their entry of guilty pleas.

[16] I have already mentioned the age of Jagroop Singh and Shinder Kaur which I consider a mitigating feature of their offending. They were particularly duped by Bajitar Singh and to an extent by Paramjit Kaur, but this is also a personal mitigating feature.

[17] The previous good character of all the prisoners is something for which they are entitled to credit. They have no previous convictions and I am perfectly prepared to accept in every other way, have been good and law-abiding citizens.

[18] The Crown accepts, as do I, that this offending would not have taken place without Mr Bajitar Singh’s offices. I considered that to be a mitigating feature of the offending. The Crown places it within the personal mitigating features category. It matters not which category is appropriate so long as credit is given.

The sentence – discussion

[19] It has been said many times by higher Courts than this that the central feature of immigration fraud sentencing must be deterrence. I concur with that; that means, of course, that the starting point for offending such as this must be imprisonment. Before I can sentence them to home detention which will be the obvious outcome and one agreed between counsel for the Crown and counsel for the defendants, I must be satisfied that a short term sentence of imprisonment, as that term is explained in the Sentencing Act, is appropriate for this offending. I am so satisfied.

[20] Taking account of the gravity of the offending including the degree of culpability of all of the offenders, the seriousness of the types of offence and the desirability of consistency as well as the least restrictive outcome that is appropriate, it seems to me that the band of imprisonment suggested by the Crown as starting points are roughly appropriate. They are as follows:

[21] For Paramjit Kaur who is the most culpable of all of the defendants, a suggested starting point is 27 to 30 months’ imprisonment. That is perhaps a little higher than I would set it so I am prepared with Paramjit Kaur to start at a 24 month sentence of imprisonment.

[22] For Manpreet Singh who is considered by the Crown to be the second most culpable and who was 18 at the beginning of his offending, the Crown seeks a starting point of 18 to 24 months’ imprisonment. In his case I am perfectly prepared to put that at 18 months.

[23] For Shinder Kaur and Jagroop Singh who are the least culpable, who are elderly, who were badly duped and who are unwell, I consider that the starting point for terms of imprisonment should be no more than 10 months.

Home detention

[24] There is no dissention that sentences of home detention are appropriate as end sentences for all these defendants. Bearing in mind that in respect to all defendants there are sufficient personal mitigating features and, indeed, mitigating features of the offending to give them discounts that bring each of them well within what would otherwise be an end sentence of imprisonment of less than two years, the necessary parameters for the imposition of sentences of home detention are met.

[25] In the case of all four defendants, a sentence of home detention will provide an effective option so that they may remain in the community but still suffer the necessary punitive element of sentencing. I am satisfied that the purposes of sentencing the defendants cannot be achieved by a less restrictive sentence or combination of sentences than home detention, and the only discussion of a real nature that has taken place before me today is as to the length of sentence.

[26] Additionally, Mr Bradford who acts for Mr Manpreet Singh, has discussed with the Court whether community detention could be imposed rather than home detention upon his client. Although Mr Manpreet Singh has purchased a lawn mowing contracting business or a franchise and with home detention is unlikely to be able to work in it, I still consider that the punitive elements of sentencing can only be met by a more restrictive sentence than community detention. Therefore I am not prepared to exceed to his request. Frankly, Mr Manpreet Singh must have known when he purchased that lawn mowing contracting business that he would quite possibly end up in a position where he would be unable to work at it.

[27] The end home detention sentences that I consider are appropriate are as follows:

(a) For Paramjit Kaur who is, as I have said, the most culpable defendant, a ten month period of home detention. I do not intend to couple this with any other sentence such as community work because despite her culpability, I accept that Paramjit Kaur has been very badly treated in this country by Mr Bajitar Singh and was, effectively, for some years

the victim of his artifices in that she effectively gave him slave labour. I also accept that she is in something of a caregiver position to the elderly Shinder Kaur and Jagroop Singh. Thus her responsibilities are many and varied and I do not think that the purposes and principles of sentencing her require that she should spread herself even more thinly than she is at present.

(b) For Mr Manpreet Singh, less culpable but nevertheless culpable. I consider that an eight month home detention sentence should be served with no additional sentence.

(c) For Shinder Kaur and Jagroop Singh, the least culpable, both should

be sentenced to four months’ home detention.

[28] The conditions of the sentences of home detention are as follows:

(a) All are to live at 30A Sturdee Road, Manurewa. It is unusual for co-offenders to reside together under home detention but this is a special circumstance where they must.

(b) They are to return to their home immediately after the conclusion of this sentencing and to remain there until met by a probation officer for the installation of the electronic bracelet.

[29] Thus in summary:

(a) Paramjit Kaur, you are sentenced to a term of 10 months’ home

detention.

(b) Manpreet Singh, you are sentenced to a term of eight months’

home detention.

(c) Shinder Kaur and Jagroop Singh, you are sentenced to four months’

home detention.

[30] I consider that these sentences best reflect the purposes and principles of the

Sentencing Act.

M-E Sharp

District Court Judge