MOHAMMED ATIQUL ISLAM v R [2020] NZCA 140

MOHAMMED ATIQUL ISLAM v R [2020] NZCA 140 [4 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA227/2019[2020] NZCA 140BETWEEN MOHAMMED ATIQUL ISLAMAppellantAND THE QUEENRespondentHearing: 26 February 2020Court: Miller, Dobson and Moore JJCounsel: P F Wicks QC for AppellantB D Tantrum for RespondentJudgment: 4 May 2020 at 11.30amJUDGMENT OF THE COURTAppeal against sentence dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Introduction[1] After a three week trial in the District Court at Auckland a jury found Mr Islamand his wife guilty of 20 charges laid under the Immigration Act 2009 ("the Act") andthe Crimes Act 1961.[2] On 10 May 2019 the trial judge, Judge B A Gibson, sentenced Mr Islam to fouryears and five months' imprisonment.1 He appeals his sentence on the ground that itis manifestly excessive.The charges[3] The 20 charges may be divided into four tranches:(a) 10 charges of exploitation of temporary workers ("exploitationcharges");2(b) two charges of aiding and abetting a person to breach a condition oftheir visa ("aiding and abetting charges");3(c) five charges of providing false or misleading information to animmigration officer ("false and misleading information charges");4 and(d) three charges of attempting to pervert the course of justice ("pervertingcharges").5[4] Each of the charges laid under the Act carries a maximum penalty of sevenyears' imprisonment and/or a fine not exceeding $100,000. The charges of attemptingto pervert the course of justice carry a maximum penalty of seven years' imprisonment.Factual background[5] The sentencing Judge set out the circumstances of the offending in some detail.The account which follows is drawn from his sentencing remarks, the evidence at trial,the victim impact statements and the PAC report.1 R v Islam [2019] NZDC 8802. Mr Islam's wife was sentenced to two years and six months'imprisonment. She does not appeal her sentence.2 Immigration Act 2009, s 351(1)(a)(i) and (ii) and s 351(1)(b)(i).3 Immigration Act, s 343(1)(a).4 Immigration Act, s 342.5 Crimes Act 1961, s 117(e).[6] Between July 2014 and August 2015 Mr Islam and his wife, Ms Ahmed,employed five staff at their Bengali sweet shop in Sandringham, Auckland.[7] The specialist sweets were made by two chefs who worked at the shop.They had been recruited from Bangladesh. The recruitment process involvedMr Islam and Ms Ahmed advertising in local Bangladeshi newspapers. Interestedcandidates were identified following which Mr Islam and Ms Ahmed flew toBangladesh to interview them.[8] Two potential chefs were offered and accepted employment. These wereMr Sikander and Mr Sarder. Neither could read nor speak English. Mr Islam andMs Ahmed assisted them in obtaining visas and facilitated the travel of both men toNew Zealand. Once here, they provided accommodation.Exploitation charges[9] Prior to the chefs arriving in New Zealand, Mr Islam and Ms Ahmed completedand submitted to Immigration New Zealand ("INZ") work visa applications, andsupporting documents for both men. The applications recorded that the chefs wouldbe employed for 40 hours per week, Monday to Sunday. They would be paid $17 perhour. INZ approved the work visa applications and visas were issued.[10] However, the chefs' conditions of employment were starkly different fromwhat Mr Islam had represented to them. From the beginning of their employment,Mr Sikander and Mr Sarder were required to work hours which grossly exceeded thosethey had been told. Over the two year period represented by the charges their effectivenet hourly rate, as later calculated by INZ, was $7.97 and $7.08 respectively. Althoughthe two chefs were the primary employees, three others were recruited from the localBangladeshi community and employed at hourly rates of around $6 to $7.[11] In respect of the five employees Mr Islam's actions included his serious andsustained failure to pay the statutory minimum wage under the Minimum WageAct 1983. In respect of three of the employees, including the chefs, he was alsoresponsible for failures under the Holidays Act 2003 to pay entitlements such as annualleave and for work on statutory and alternative holidays.[12] The Ministry of Business, Innovation and Employment has calculated the totalunpaid wages and entitlements for the five employees. This totals $260,089.58, afigure described by the Crown as very conservative. The total in respect ofMr Sikander is estimated at $98,920.54; for Mr Sarder it is $98,499.78.[13] When they complained about their work conditions or told Mr Islam they weretoo exhausted to work, he would tell them if they did not work the hours required theshop would close and they would have to return to Bangladesh. On occasions, afterfinishing a long shift, they would be called back to the shop for further work.Sometimes, particularly during festivals, they worked especially long hours includingup to 36 hours in a single shift.[14] Immediately on their arrival in New Zealand Mr Islam took possession ofthe men's passports. Despite requests for their return he withheld them for virtuallythe whole period of their employment. When the men required their passports forparticular reasons Mr Islam would either provide them with a photocopy or wouldaccompany them to their appointment, present the passports as necessary, and retainthem afterwards.[15] The passports were not returned to either man until after the intervention ofthe Police. When questioned by the police Mr Islam advised that the passports werebeing held by his lawyer. Two of the 10 charges of exploitation ("the passportcharges") cover this conduct.6 At trial, Mr Islam's lawyer gave evidence that hereceived the passports by post the day after Mr Islam had been spoken to by the police.To support his false account Mr Islam drafted letters which he had the chefs signpurporting to evince a request that he hold the passports on their account. Given thatneither man was competent in reading or writing English it is very probable they didnot understand the contents or effect of what they were signing.Aiding and abetting charges[16] The aiding and abetting charges arise from Mr Islam's employment of staff onstudent visas. A condition of the visas was that they were not permitted to work for6 Immigration Act, s 351(1)(b)(i).more than 20 hours per week. Despite this, and aware of this limitation, Mr Islam hadthem working well in excess of the maximum limit.False or misleading information charges[17] The false or misleading information charges relate to various documents whichMr Islam submitted to INZ. These included false statements as to the rates whichworkers would be paid. They also included false representations to INZ that the chefswere being paid at a higher rate than Mr Islam, himself. Other false statementsincluded earning summaries for Inland Revenue with visa applications for the chefsshowing them to be earning considerably more than they were. This included a letterfrom one of the chefs to the effect that he had been paid over $3,000 a month whenthis was plainly false. As before, the letter had been written by Mr Islam but signedby the chef.The perverting charges[18] The perverting charges arise from Mr Islam's conduct after INZ commencedits inquiry. Aware of the investigation he created a number of false documents in anattempt to retrospectively characterise the employment relationships more favourably.He backdated employment agreements. He wrongly stated that some employees werebeing paid the minimum wage. In respect of one employee, who was not paid at allfor their work, Mr Islam retrospectively created a "volunteer agreement" with a coverletter from the employee purporting to seek work on a voluntary basis.Sentencing decision[19] In setting the starting point the Judge observed that while there were nomitigating factors in relation to the offending there were many factors of aggravation.These included the deliberate, sustained, and calculated practice of Mr Islamunderpaying his workers. The Judge pointed to the duration of the offending, beingjust over two years. He noted the vulnerability of the victims; all drawn fromthe Indian subcontinent and dependent on wages at higher rates than Mr Islam paidthem. In respect of the chefs, the Judge noted that they were specifically recruitedfrom jobs they held in Bangladesh. He noted that Mr Islam had taken their passportsand worked them extremely hard such that they had limited opportunity to findalternative employment.[20] The Judge also determined that the offending was driven by a commercialimperative for personal gain, adding that not only were the workers hurt by thisconduct but that revenue was lost to the Crown in the form of taxation which wouldnormally have been paid.[21] He then referred to Balajadia v R where this Court, in broadly comparablecircumstances, upheld a starting point of 30 months but noted that given the statutorymaximum, a starting point of 40 months might easily have been set.7 The Judgereferred to other cases involving worker exploitation and charges brought under thesame provisions of the Act.8[22] The Judge settled on a starting point of three years and four months' (or40 months') imprisonment for the exploitation charges.9 It would appear that theaiding and abetting charges were also included in setting the starting point.10 He thenuplifted this by two years on account of the two passport charges, the five false andmisleading information charges and the three perverting charges.11 This led to aninitial starting point of five years and four months. This he reduced to five years fortotality.[23] For personal factors, the Judge gave a 10 per cent discount for previous goodcharacter, an allowance he described as generous.12 This led to a final sentence of fouryears and five months' imprisonment.7 Balajadia v R [2018] NZCA 483.8 R v Kurisi [2017] NZHC 62; Ministry of Business, Innovation and Employment v Jain [2015]NZDC 21123; R v Chahill [2016] NZDC 21477.9 R v Islam, above n 1, at [25].10 These did not include the two passport charges which were taken into account in the uplift.11 At [28].12 At [33].SubmissionsAppellant[24] In his oral submissions before us, Mr Wicks QC, for Mr Islam, accepted thatthe Judge's starting point of three years and four months' imprisonment could not bechallenged. His focus was on the uplift which, taking into account the totalityadjustment, was effectively 20 months.[25] While submitting that each set of remaining charges if considered separatelywould lead to a cumulative total of around four years' imprisonment, his complaintwas that the Judge failed to take into account that this additional offending wasessentially part of the same continuum of criminal conduct. He also submitted thatthere was a degree of double counting in that the passport charges appeared to havebeen included in setting both the starting point and the uplift.[26] Considering the additional charges as a whole, Mr Wicks submitted thatthe total appropriate uplift should have been no more than 15 months' imprisonment.Crown[27] For the Crown, Mr Tantrum submitted that the Judge correctly characterisedthe exploitation charges as the lead offences with the balance of the charges beingdealt with by way of an uplift. The aggravating factors included premeditation,vulnerability, harm to the victims and commerciality. He submitted there were nomitigating factors engaged.[28] Mr Tantrum submitted that the extent of Mr Islam's offending made it mostcomparable to the cases of Balajadia13 and R v Kurisi.14 He thus submitted that thestarting point was well within the available range.[29] He further submitted that when the passport charges, the aiding and abetting,the false and misleading information and the perverting charges are included,13 Balajadia v R, above n 7.14 R v Kurisi, above n 8.a cumulative unadjusted uplift in the range of four-and-a-half to five-and-a-half years'imprisonment is reached. When totality considerations are factored in, the Judge'sadjusted 20 month uplift falls well within the available range.[30] Finally, Mr Tantrum submitted that the 10 per cent discount for personal factorswas, as the Judge himself observed, generous.[31] He thus submitted that the end sentence cannot be characterised as manifestlyexcessive.Discussion[32] In order to succeed on this appeal Mr Islam must satisfy us that not only didthe sentencing Judge err but that a different sentence should be imposed.15 The focusis on the end sentence, rather than the process by which it is reached.16 This Courtwill not ordinarily interfere unless the end sentence is outside the available range.17[33] As Mr Wicks properly accepted, it was open to the Judge to structurethe sentence in the fashion he did, that is setting a starting point for the lead offendingand adjusting that upwards, either in the form of a discrete uplift or as a cumulativesentence to account for the additional and separate offending.[34] As this Court said in Balajadia, in setting the seven year maximum penaltyParliament plainly intended to denounce the exploitation of vulnerable workers forcommercial gain.18 That purpose was reflected in the comments of the Minister ofImmigration during the first reading of the Bill which introduced the exploitationcharges, when he said the Courts would "come down hard on employers who takeadvantage of vulnerable workers".1915 Criminal Procedure Act 2011, s 250(2).16 D (CA197/2014) v R [2014] NZCA 373 at [18].17 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].18 Balajadia v R, above n 7, at [15].19 (19 November 2013) 695 NZPD 15077.[35] In Balajadia, this Court said that under these circumstances, a starting point of30 months or 35 per cent of the statutory maximum was lenient and could easily havebeen as high as 40 months.20[36] The lead charges in the present case justified a starting point of at least thatorder. The offending was sustained, deliberate and repeated. Five workers wereexploited. Mr Islam was well aware of the minimum standards of pay in this country.Not only did he remunerate his employees at levels grossly below the minimumstatutory standards, he actively took steps to keep them in his service through threatsand other actions.[37] There can be no doubt that his employees were vulnerable, particularlythe chefs who relied on their employment to remain in New Zealand. They had littleopportunity to form friendships or connections outside their work. Their ability tocommunicate with others was very limited. They were geographically and culturallyisolated. They were reliant on Mr Islam and Ms Ahmed to support them in everysense. In their victim impact statements, they described their sense of utterhelplessness. In contrast, Mr Islam is highly educated. He has both a Bachelor ofCommerce and a Postgraduate Diploma in Business. He has held positions withthe ANZ, Baycorp, Bank of New Zealand, Watercare and Spark. He is completelyfamiliar with modern New Zealand society and its commercial setting.[38] The level of harm the workers were subjected to went well beyondthe underpayments, substantial as they were. They were forced to work extreme hourswell in excess of the representations made to them at the time of their engagement.They were estranged from their families. Some had borrowed money from relativesand friends to pay for the move to New Zealand. With no effective income they havebeen unable to repay the loans. In Mr Sarder's case, his wife and children had to moveback to their village because they could no longer afford to stay in Dhaka where thechildren were being educated. Mr Sikander sold his father's farm in the expectationthat he would be able to buy it back once he was earning good money in New Zealand.20 Balajadia v R, above n 7, at [37].[39] That this offending was driven by commerciality is a particularly aggravatingfactor. Mr Islam and his business were direct beneficiaries of the deprivation andexploitation of his workers. It is no hyperbole to condemn Mr Islam's conduct aseconomic and social slavery.[40] In the absence of any mitigating factors it is unsurprising that Mr Wicksaccepted that the starting point was within range. There is no tariff decision in thisarea and sentencing proceeds on ordinary Sentencing Act 2002 principles, withcomparable sentences serving as a helpful check for sentencing judges rather than anappellate guide to an available range. In this case the offending encompassed by thestarting point featured a number of serious aggravating factors; duration and degree ofexploitation, extensive deceit of immigration authorities, unlawful gain and,importantly, uncompensated loss to victims.[41] The central question here, however, is whether the effective 20 month upliftwas justified. In calculating the standalone cumulative uplift before any totalityadjustment, it is noteworthy that Mr Wicks and the Crown are not far apart. On the twopassport charges, Mr Wicks submitted a starting point of 12 months' imprisonmentwould be appropriate. Mr Tantrum suggested 12 to 18 months' imprisonment.On the aiding and abetting charges Mr Wicks said these could attract a starting pointof 12 months' imprisonment. Mr Tantrum agreed. On the provision of false ormisleading information Mr Wicks suggested a starting point of 12 months'imprisonment. Mr Tantrum submitted it should be in the range of 12 to 18 months.On the perverting charges Mr Wicks suggested a starting point of no more than12 months' imprisonment. Mr Tantrum suggested 18 months' imprisonment.[42] Thus, Mr Wicks submitted that on a total, unadjusted cumulative basis thefurther charges would result in an uplift of four years with a totality adjustment backto no more than 15 months' imprisonment. Mr Tantrum's range was four-and-a-halfyears to five-and-a-half years. That is why he submitted the 20 month uplift was wellwithin range.[43] A comparative analysis of the authorities supports the Crown's position.For example, in Kurisi there were six victims.21 The offending spanned three years.There were representative charges of exploitation and aiding and abetting. A 42 monthstarting point was adopted. In MBIE v Jain, four victims were exploited over an18 month period.22 Ms Jain was sentenced on four exploitation charges, 15 providingfalse or misleading information charges and six aiding and abetting charges.The starting point was 40 months. Two of Ms Jain's co-defendants, whose culpabilitywas lower and who faced fewer charges, were given starting points of 18 months.23In Balajadia five victims were exploited over a two year period.24 The defendantfaced two charges of exploitation and five charges of providing false information.This Court upheld the starting point of 30 months but, as earlier noted, observed itcould easily have been 40 months.[44] In our view, absent the perverting charges, the present offending is at least asserious as Jain, Kurisi and Balajadia.[45] However, the present case is materially different in a significant way. And thisrelates to the perverting charges. That offending represents a separate and seriouscourse of deceptive conduct. After Mr Islam learned that he was being investigatedby the authorities, he embarked on a course of deception. He falsified documents andpersuaded one of his victims to create false documents for him to misleadinvestigators. The Courts often impose cumulative sentences where an offence wascommitted to avoid the consequences of earlier offending.25 The Judge could wellhave imposed a cumulative sentence for this offending in the range of 12 to 18 months'imprisonment.26[46] There is a second factor which must also be relevant to an assessment ofculpability. Mr Sikander and Mr Sarder are each owed a little under $100,000.The other employees are estimated to be owed $52,253, $6,745 and $1,67021 R v Kurisi, above n 8.22 MBIE v Jain, above n 8.23 At [31] and [39].24 Balajadia v R, above n 7.25 R v Uon CA108/05, 27 June 2005 at [24].26 R v Churchward CA439/05, 2 March 2006; and M(CA469/2013) v R [2013] NZCA 385 at [9].respectively. None of these arrears have been paid and there seems little prospect theyever will be.[47] Finally, we agree that the discount given for Mr Islam's previous goodcharacter was generous. The particular nature of his offending involvedthe exploitation of vulnerable fellow countrymen. That, combined with Mr Islam'sinsistence to the author of the PAC report that he did nothing wrong and paid hisemployees what he believed he owed them, reveals a startling lack of remorse andinsight into the effect his offending has had on others. This could easily have justifiedthe Judge making no allowance for good character. For these reasons we are satisfiedthat the appeal should be dismissed.Result[48] The appeal against sentence is dismissed.Solicitor:Crown Solicitor, Auckland for Respondent