R v Siddiqui [2017] NZDC 21063 (18 September 2017)

Last Updated: 27 March 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT HAMILTON

CRI-2015-019-004158

[2017] NZDC 21063

THE QUEEN

v

MOHAMMED SHAKEEL SIDDIQUI

Hearing:	18 September 2017
Appearances:	T Clark for the Crown G Bradford for the Defendant
Judgment:	18 September 2017

NOTES OF JUDGE R G MARSHALL ON SENTENCING

[1] Mr Siddiqui appears for sentence today on four charges: using a document, which carries a maximum penalty of 10 years' imprisonment; two charges of obtaining by deception, which carry maximums of seven years' imprisonment and also, being an unqualified person, claiming to be a health practitioner which is subject to a fine-only maximum of $10,000. The first three charges are laid under the Crimes Act 1961 and the latter under s 7 Health Practitioners Competence Assurance Act 2003.

[2] At the outset of this sentencing this morning, just to over the background to the sentencing, Mr Bradford applied for an adjournment of the sentencing. There are a number of other matters that I dealt with and gave decisions on prior to that. His submission was that the matter was not ready for sentence today. He did not have sentencing submissions prepared.

R v MOHAMMED SHAKEEL SIDDIQUI [2017] NZDC 21063 [18 September 2017]

[3] I took the view that on 28 August, when I remanded the matter to today’s date, after having heard an application to vacate pleas of guilty that the remand through to today’s date was for the purposes of callover if Mr Siddiqui’s application was successful or sentencing in the event that his application was dismissed.

[4] By reserve decision I dismissed that on 7 September and indicated sentencing would proceed today. I was not prepared to adjourn sentencing further, in the interests of justice which not only includes Mr Siddiqui’s interest but also those victims present in Court today. The Crown have identified presence from the Waikato District Health Board, representatives from there, and the New Zealand Medical Council. The interests of victims are very important interests and go into the balance of the interests of justice and in my view sentencing was to proceed on 6 April initially and here we are, some months later, and Mr Bradford being the third lawyer and sentencing is still outstanding. In my view, finality is important. It allows victims to move on and it also, as I say, brings finality to proceedings where Mr Siddiqui himself has now been in custody, I estimate, certainly when the pre-sentence report was prepared in April, he will have been in custody now some 21 months or so, a considerable period of time.

[5] I did stand sentencing down from quarter to 12pm to 3.30pm to allow Mr Bradford to engage with Mr Siddiqui over the sentencing as his instructions at that point were to take no further part and make no submissions. I am grateful to Mr Bradford’s efforts and he has advanced submissions in respect of aspects of the Crown submissions, which were filed on 3 April 2017, and I have allowed Mr Siddiqui to make submissions on his personal circumstances.

[6] I start with the summary of facts in relation to the four charges. It also deals with general matters as well. The Crown summary of facts, which was noted on 14 March 2017 as being agreed before the pleas of guilty were entered, deal with the allegations in brief. Essentially, they are that Mr Siddiqui used forged and other falsely altered documents in order to obtain employment as a psychiatrist in New Zealand.

[7] I say now, though it is not in the summary of facts, the Crown accept that Mr Siddiqui does have medical qualifications, qualifying him as a general practitioner or doctor from the United States. However, the position the Crown maintain and what

is accepted now is that Mr Siddiqui does not have specialist qualifications as a psychiatrist. The documents provided by him to a number of different organisations, including an international medical recruitment firm based in Australia, to the Waikato District Health Board and the Medical Council of New Zealand, were relied on for him to get recruitment, employment and registration. He also obtained and improperly used a work visa and obtained a Medical Council of New Zealand locum tenens and vocational registration licences and practicing certificates by deception.

[8] Of particular note, he used forged documentation relating to another qualified psychiatrist in the United States, having [a similar name to him]. Mr Siddiqui adopted details of [the victim’s] qualifications by falsely claiming in his CV that he had obtained specialist qualifications from the Brookdale University Hospital and Medical Centre in 2012, also falsely claimed to have worked in a number of hospitals in the United States, together with named referees.

[9] He arrived in New Zealand from the United States on 15 January 2015, travelling on an Indian passport. He took up a position with the Waikato DHB as a consultant psychiatrist within the Crisis Assessment and Home Based Treatment Service on 19 January 2015. Later in January he was granted locum tenens, registration from the Medical Council of New Zealand and a practicing certificate was issued which allowed him to commence his employment. He worked at the Waikato DHB until 24 July 2015 when he was suspended due to concerns about his competence. He was subsequently dismissed.

[10] By way of background, the Waikato DHB had used the international medical recruitment firm in Australia to recruit Mr Siddiqui. They carried out all the necessary background checks and on or about 28 July 2014, Mr Siddiqui applied to that firm for employment as a psychiatrist. That firm at the time did not realise he had already made approaches to the organisation in 2012 and been told his work experience and qualifications would not meet the New Zealand registration requirements.

[11] A number of deliberate deceptions were included in his CV. Of significance were those relating to the American Board of Psychiatry and Neurology certification, specialist qualifications and specialist work experience. He was also required to

provide three references. Those references were unable to be validated. In order to convince the various organisations of the validity of the references, Mr Siddiqui used false email addresses to liaise with the organisations so that they would think they were corresponding directly with the nominated referees. Further police and FBI checks revealed the referees nominated by Mr Siddiqui were not employed at the hospitals named in the references.

[12] The first charge, using a forged document, relates to documentation that was provided to the Australia employment firm and forwarded to the Waikato DHB and the Medical Council of New Zealand. That included a State of Illinois Department of Financial and Professional Regulation certificate licence and an American Board of Psychiatry and Neuropathology certificate. Those documents were later found to be forged from the legitimate documents which belong to [the victim], who I had referred to earlier. Mr Siddiqui adopted [the victim’s] qualifications by claiming he had obtained those specialist qualifications from the Brookdale University Hospital and Medical Centre in 2012. He had also falsely claimed to have worked at a number of hospitals in the United States together with his named referees.

[13] On about 27 August 2014, as a result of using the forged or altered false documents, Mr Siddiqui was offered a role of consultant psychologist at Waikato DHB. That employment was due to commence on 19 January 2015. Further, Mr Siddiqui required a work visa and submitted various forms to New Zealand Immigration but for the alleged deception to obtain employment with the Waikato DHB, he would not have been eligible to receive a work visa.

[14] Charge 5, an obtaining by deception charge, relates to the Medical Council of New Zealand vocational licence. On 25 September 2014, the Council received a registration application and that was necessary to allow Mr Siddiqui to work in New Zealand as a psychiatrist. Included in the application were three references provided by Mr Siddiqui. When those references could not be found on the American Board of Psychiatry and Neuropathology database, he was required to provide further references. This led to the falsities I have described earlier but he acquired the necessary licence.

[15] The next charge, charges 8 and 10, which is obtaining by deception and being an unqualified person, 19 January 2015 Mr Siddiqui commenced employment at the Waikato DHB as a consultant psychiatrist. His salary was to be $165,250 per annum in addition to various allowances and also he was entitled to various expense claims. As part of his duties, Mr Siddiqui assessed and interacted with mental health patients including sectioning some under the Mental Health (Compulsory Assessment and Treatment) Act 1992 to secure facilities and also the prescription of various forms of medication.

[16] [Mr Siddiqui’s supervisor] expressed concern to the Medical Council of New Zealand regarding Mr Siddiqui and his competence and officially withdrew his agreement to provide the required supervision on 17 July 2015. That meant that Mr Siddiqui was no longer able to carry out his employment and he was stood down from that employment. The hospital began conducting checks on his identity. It was then discovered that his identity was very much called into question and he was subsequently dismissed. The matter was then referred to the police for their investigation.

[17] The Crown have, as I say, filed written submissions. They have identified, in my view, the appropriate sentencing purposes to hold Mr Siddiqui accountable for the harm done to victims in the community, to promote in him a sense of responsibility for and acknowledgment of that harm, to denounce the conduct in which he was involved and to deter him and other persons from committing similar offending.

[18] The Crown have also identified a number of aggravating features to do with the offending, the extent of the loss or harm caused. Here the Crown correctly identified that there are no real similar cases involving this type offending that have come before the Court. The extent of the harm involves both financial harm, risk to patients, harm to the Waikato District Health Board, Medical Council of New Zealand as far as loss of confidence in those organisations brought about by Mr Siddiqui’s deception and also the financial consequences.

[19] I have had a number of victim impact statements handed to me as obviously the aggravating features also deal with the impact on victims and here also vulnerable victims amongst the other victims.

[20] One victim is [the victim] in the United States. He also, like Mr Siddiqui, has two children. How it has affected him in the last couple of years has been to place him under great stress. Most doctors and patients, he says, Google his name. They then run into links for the web search fake psychiatrist because they share a common name or similar first and surnames and it has been very frustrating for him because that has impacted directly on his medical practice.

[21] The American Board and Psychiatry and Neurology have spent considerable amounts of labour costs, $US2100 in the US and outside legal costs of $16,000 in investigating and responding to Mr Siddiqui’s offending. In addition, there is harm to that Board’s reputation and intellectual property rights.

[22] With the Waikato District Health Board, there is not only the $130,000 in salary expenses and the like but also the cost to its reputation and, more importantly, the impact on service users and their whānau. There has been a gross abuse of trust of some of the most vulnerable people in society, those mentally unwell patients who are seeking assistance or who need assistance. Mr Siddiqui was part of the Crisis Assessment and Home Based Treatment Service and as stated in the Waikato District Health Board’s victim impact statement, those individuals often present in their most vulnerable states mentally, emotionally, physically, socially and spiritually. It can cause immeasurable harm where those who are not qualified effectively then go about fraudulent using statutory authority available under the Mental Health (Compulsory Assessment and Treatment) Act for health professionals that are qualified to deal with those vulnerable members of society.

[23] Five individuals were progressed by Mr Siddiqui needing further assessment, some 32 were admitted to hospital for further assessment and treatment and two were placed on compulsory treatment orders that forced them to have treatment against their will for up to six months. Those particulars are set out in the victim impact statement.

[24] There are victim impact statements from the Medical Council of New Zealand which refers not only to the personal impact on member of the council but also the reputational impact and the resultant lack in confidence of the medical council to ensure that someone with the appropriate qualifications is appointed to the appropriate position.

[25] The abuse of trust aggravating feature I have already referred to and then there was the high level of premeditation, evidenced by the fraud and deceit utilised by Mr Siddiqui.

[26] The Crown have pointed to the fact that there are no tariff decisions in this case or in cases of fraud such as this. They have referred to the case of R v Varjan.1 and that deals with fraudulent offending. In R v Varjan the Court of Appeal offered some guidance as to assessing culpability in fraud cases and said the following:

Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved and the impact on victims.

[27] Here, the nature of the offending involved using forged documents and also obtaining by deception. The magnitude and sophistication of that offending involved fooling the American Board of Psychiatry and Neurology, the New Zealand Medical Council, the Waikato District Health Board and also the employment firm in Australia.

[28] The victims were the New Zealand Medical Council and Waikato District Health Board that were affected in a reputational and certainly the Health Board impacted in a financial way but more importantly were those vulnerable patients who seek and are sometimes voluntarily and other times involuntarily required to be given assistance by a duly qualified psychiatrist. Here, they did not receive that treatment by a duly qualified psychiatrist.

1 R v Varjan CA97/03, 26 June 2003

[29] The motivation, here, the motivation of the offending can only have been to obtain a reasonable salary but also to acquire the status that goes with being a consultant psychiatrist.

[30] The amount of loss is, as I said, at approximately $130,000 to the Waikato District Health Board, $25,000 to the American Board of Psychiatry and Neurology, but there were serious potential risks to the health of very vulnerable member of the community too presenting with mental health issues.

[31] The period of time was six months which, mercifully, was reasonably short but it did involve a serious breach of trust and impact on the victims that I have referred to.

[32] The Crown submit that on charge 1, using a forged document, the appropriate starting point is two years and nine months to three years; on charges 5 and 8, uplifts of two years six months and two years nine months; and charge 10 a conviction without further penalty. The Crown have identified charge 1 as the lead charge. The Crown also seek an uplift of six to nine months for a previous conviction of Mr Siddiqui in 1997 in the United States which was a conviction, the Crown say, for dishonesty, making a fraud and false statement, illegitimately attempting to obtain a research grant to the value of $US500,000. The Crown also refer to the continued dishonesty, or further altering documents whilst Mr Siddiqui was on bail although he did not face any further charges as a result of that and has not been convicted of any matters as a result of that. The Crown’s submission that is an overall end sentence in the range of five to five years six months' imprisonment would be appropriate, plus an order for reparation.

[33] Mr Bradford addressed me and in respect of the charges on a basis that he was instructed to by Mr Siddiqui and addressed those technical legal issues relating to the sentencing. Mr Bradford considered that charge 1 should be the lead charge, but uplifts on charges on 5 and 8 on a totality basis should not virtually equate with the same or similar length of sentence for charge 1. In other words, Mr Bradford argues that that would offend against the totality principle and amount to imposing cumulative sentences without recognising that principle. Further, Mr Bradford

submits that the Crown now accept Mr Siddiqui has a medical degree, that these charges have been hanging over his head for two years and that it has cost him his medical career.

[34] As to personal aggravating factors, Mr Bradford submits that the previous conviction is a long time ago and, in any event, it is not accepted by Mr Siddiqui and the alleged continued dishonesty on bail is not subject to charges and is not what Mr Siddiqui is here to be sentenced on.

[35] Mr Bradford indicated that Mr Siddiqui wished to address me personally and although it was unusual, because of the way that this sentencing has unfolded I allowed that provided Mr Siddiqui did not re-litigate matters concerning the application to vacate pleas or the like and that he confined it to his personal circumstances. He advised me that he is still paying off his medical fees for obtaining his qualification in the United States, that he has status as a visiting professor. His children in the United States still come under his care, they are freshmen aged 16 and 18, that since he has been in custody in New Zealand or faced these charges, his children’s performance at their education has slipped, that all his family now live in the United States.

[36] It is important that he go back to his children but if his sentence is 12 months' imprisonment or less he stands a good chance of being able to appeal to get back into the United States, if it is one year to two year he has a 50 percent chance of being able to go back to the United States and if it is greater than two years he has no chance.

[37] I invited Mr Bradford to talk to and obtain instructions from Mr Siddiqui on the issue of remorse and any acknowledgment by him of the offending and acceptance of the offending. Mr Bradford said Mr Siddiqui was, and I quote, “Sorry so many people involved have had to go through this process.” Mr Siddiqui, according to Mr Bradford, did not want to waive any of his rights.

[38] That accords with what he told the probation officer on 4 April this year in the pre-sentence report. He still maintained his innocence. He entered guilty pleas for purely pragmatic reasons and although he took responsibility for the use of two forged documents and offered his apologies to the Court for that, he advised it as simply an

error on his part and a continued maintenance of innocence was maintained and the probation officer assessed that that was indicative of a lack of remorse. Mr Siddiqui’s risk of re-offending, however, was seen as low. His potential of harm to others by unqualified diagnosis and treatment was assessed as high.

[39] It appears that from the pre-sentence report, whilst Mr Siddiqui was living in the United States for some 30 years he was in possession of a green card but his absence from the USA for over 12 months meant that would have lapsed. It was anticipated that, following Mr Siddiqui’s release from custody, he would be deported to India which is also what was confirmed to me today.

[40] Having regard to the matters I referred to in R v Varjan, I am of the view that an appropriate starting point on the lead charge of using a forged document is one of three years' imprisonment. I have tempered that because the period of time was six months. Having regard to the other two charges, which I have dealt with at the same time, they potentially could have those starting points on a standalone basis that the Crown indicate of two years six months and two years nine months but, in my view, bearing in mind the totality principle, the uplift is one year and six months. That brings me to an end starting point of four years and six months. As to the personal aggravating features, I consider that matters going back to 1997 in the United States have been spent over the course of time and I would not apply any uplift for that, nor of any alleged unconvicted offending that occurred whilst Mr Siddiqui was on bail. That would require further charges and further assessment.

[41] I am left with that end starting point now of four years and six months. The Crown accept that some residual credit is due for the guilty plea. I have considered those matters also that Mr Siddiqui has talked to me of, but they are part of the direct consequences of his offending, that is the fact that he cannot return to the United States easily, if at all, that he is separated from his children and family. It is unfortunate but as I say it is part and parcel of the consequences of his offending. He has not been able to show me any further credit by way of remorse, acceptance of responsibility for his offending and therefore, strangely as a medical doctor, no empathy for those vulnerable patients that he treated when he knew full well he was unqualified to do so.

It was only the vigilance of the Waikato District Health Board that eventually was able to terminate his involvement in treating patients at an early stage.

[42] Returning to mitigating features, that leaves really the credit for the guilty plea. As I say, the Crown urge five percent. Mr Bradford urges something closer to 10 as being usual in those circumstances. In my view, five percent is closer to the mark but I will round that to three months.

[43] Mr Siddiqui, the sentence I impose on charge 1 is a sentence of four years and three months’ imprisonment. On charges 5 and 8 the sentence is one year and six months’ imprisonment. On charge 10 you are convicted and discharged.

[44] I have considered the issue of reparation. Realistically Mr Siddiqui you have been in custody for two years. You face on release from your custodial status deportation to India. In my view reparation is unrealistic in the circumstances as it merged through the course of the hearing and the application to vacate your pleas of guilty that your financial resources seemed exhausted so no reparation as I say will be imposed.

[45] Normally, following sentence, charges that remained in the Crown charge list would be discharged pursuant to s 147 Criminal Procedure Act 2011 however here the Crown ask for them to remain on foot pending whether an appeal is filed or not. That relates to charges 2, 3, 4, 6, 7, 9, 11, 12 and 13. Depending on events, Ms Clark is to liaise with Mr Bradford and those charges can be discharged at some future date, if appropriate. In those circumstances, as a discharge would be favourable to Mr Siddiqui, I do not see that he need be present at such a discharge.

[46] The final end sentence, Mr Siddiqui, is four years and three months. All other sentences are concurrent.

R G Marshall District Court Judge