Kamboj v New Zealand Police [2019] NZHC 2652

Kamboj v New Zealand Police [2019] NZHC 2652 [17 October 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-213[2019] NZHC 2652IN THE MATTER of an appeal against a failure to grantdischarge without convictionBETWEEN NAVJOT KAMBOJAppellantAND NEW ZEALAND POLICERespondentHearing: 15 October 2019Counsel: PTR Heaslip for appellantJJ-Y Magrath for respondentJudgment: 17 October 2019JUDGMENT OF FITZGERALD J[As to appeal against failure to grant discharge without conviction]This judgment was delivered by me on 17 October 2019 at 4pm.Registrar/Deputy RegistrarDateSolicitors: Meredith Connell, Auckland (N Webby)To: P Heaslip, AucklandIntroduction[1] Before the District Court, Mr Navjot Kamboj pleaded guilty to and sought adischarge without conviction on one charge of money laundering.1 Judge EM Thomasdeclined to grant a discharge, convicted Mr Kamboj on the single charge, sentencedhim to 100 hours community work and ordered that he pay reparations to the value of$5,5000.2 Mr Kamboj now appeals from that decision.Background[2] From January 2018, the New Zealand Police began receiving complaintsregarding a sophisticated money laundering scam involving "money mules". A moneymule is an individual who is recruited to facilitate the transfer of the proceeds of crimebetween bank accounts. This form of scheme involves an unknown person hacking avictim's bank account and transferring money from the victim's account into a mule's(or a number of mules') bank account(s).[3] The Police currently believe that banks have suffered a total loss of $1 millionas a result of such schemes. It is relevant to note, however, that the summary of factsto which Mr Kamboj pleaded guilty does not suggest that the particular scheme inwhich Mr Kamboj became involved caused this total loss of $1 million. Rather, thatloss is presented in the summary of facts as being the total loss to banks since 2018 asreported in the numerous complaints regarding money mules.[4] At the time of his offending, Mr Kamboj was a student at the Newton Collegeof Business and Technology. In an affidavit sworn in support of his application for adischarge without conviction, Mr Kamboj explained that he was approached by afellow foreign student, who told him he could make some money if he opened a bankaccount. Mr Kamboj said that the fellow student said he did not have to put any moneyinto the bank account. Mr Kamboj said that as he did not have a job and was studying,he needed money and thought this was a means of making a little bit of money. Hestates in his affidavit that "I had a gut instinct that this was wrong somehow, but I1 Crimes Act 1961, ss 243 – 245. Maximum penalty 7 years' imprisonment.2 Police v Kamboj [2019] NZDC 14678.needed to get some money. I was told there would be no trouble with Immigrationand Police".[5] As a result of the approach to him, on 21 March 2018, Mr Kamboj opened anew account with Westpac Bank, receiving an eftpos card and a corresponding PINnumber. On 22 March 2018, the victim had his Westpac account hacked by unknownpersons and $25,388.40 was transferred into five different mule accounts.Mr Kamboj's bank account was one of those mule accounts. $10,000 of the$25,388.40 was transferred to Mr Kamboj's account.[6] On the evening of 22 March 2018, $6,030 was withdrawn from Mr Kamboj'saccount by a further individual who used his eftpos card at various ATMs at the SkyCity Casino. There is no suggestion this was Mr Kamboj.[7] For his role in this scheme, Mr Kamboj received $500.[8] As noted, Mr Kamboj pleaded guilty to one charge of money laundering andsought a discharge without conviction pursuant to 106 of the Sentencing Act 2002 (theAct).[9] On 1 January 2019, Mr Kamboj was served with a deportation order fromImmigration New Zealand and is now residing in New Zealand unlawfully.District Court decision[10] In his decision dated 27 May 2019, Judge E M Thomas declined to grantMr Kamboj a discharge without conviction.3 Mr Kamboj was convicted on the singlecharge of money laundering, sentenced to 100 hours community work and ordered topay $5,500 in reparations.[11] In assessing whether a discharge without conviction ought to be granted, theJudge had regard to the gravity of the offending, the consequences of a conviction andwhether or not the consequences would be out of all proportion to the gravity of the3 Police v Kamboj, above n 2.offending.4 The Judge found that although Mr Kamboj was not aware of all the detailsof the scheme, he still deliberately engaged in the offending and carried someresponsibility for the harm caused. The Judge assessed the level of harm to be high,noting that it was twofold; the offending had caused the victim to lose confidence inthe security and safety of his money, and it had undermined international confidencein the New Zealand market. In light of this, the offending was said to be serious. Thegravity of the offending was, however, reduced on account of Mr Kamboj's age, hisdecision to plead guilty and his lack of prior offending. Ultimately, the Judgeconsidered the offending to be toward the higher end of moderate.5[12] Turning to the consequences of a conviction, Mr Kamboj identified those to bea loss of a significant investment made by his parents into his education in NewZealand, the loss of any further opportunity to study in New Zealand, and the reducedlikelihood that he would be able to obtain a student visa if convicted.6 The Judgerejected the first of these consequences, stating that the investment made byMr Kamboj's parents had already materialised in the form of a diploma qualification,and a conviction would not result in this investment being lost. The secondconsequence was also considered inadequate, as Mr Kamboj had been offered theopportunity of further study and to date no fees had been paid and would not be lost ifthe opportunity did not materialise.7[13] In relation to the final of the three consequences, Judge Thomas noted that itwas not certain that if Mr Kamboj was not convicted, Immigration New Zealand wouldnevertheless re-issue his student visa. However, the Judge did acknowledge that adischarge without conviction would make the case for re-issue of his visa stronger.Despite this, the Judge went on to say that, although a visa may not be re-issued, thatis what Parliament intended to occur; in effect, Parliament intended that if a personoffends they must show Immigration New Zealand that they are a person of goodcharacter who should still be given a visa.84 No issue is taken on appeal with the Judge's approach in this regard.5 Police v Kamboj, above n 2, at [4] – [8].6 At [9].7 At [10].8 At [11] – [13].[14] The consequence of having to explain his good character to Immigration NewZealand was not considered by Judge Thomas to be out of all proportion to the gravityof the offending.9 As a result, the application for a discharge without conviction wasdeclined. As noted, Mr Kamboj was also ordered to pay reparations of $5,500. Thisorder was less than the amount withdrawn from his account on the evening of22 March 2018, as he had already started paying reparations prior to sentencing.10SubmissionsAppellant[15] Mr Heaslip, counsel for Mr Kamboj on the appeal, submits that Judge Thomasmade a number or errors in declining to grant a discharge without conviction.[16] First, Mr Heaslip submits that the Judge erred in stating that "Parliamentintended that if you offend, you get a conviction, you have to deal with it".Mr Heaslip says that had Parliament intended all persons be convicted, then s 106 ofthe Act, the section allowing for a discharge without conviction, would not have beenenacted.[17] Mr Heaslip challenges the Judge's finding that the gravity of Mr Kamboj'soffending was at the higher end of moderate. He says that given Mr Kamboj's minorrole, the offending ought to be categorised at a low level of gravity.[18] Mr Heaslip also contends that Judge Thomas erred by failing to refer to Vohrav Police, where an appeal against conviction was allowed in similar circumstances,and failed to adequately consider similar cases, including Police v Singh and Rv Tang.11 Mr Heaslip says that R v Tang is an example of where a discharge withoutconviction was granted in the face of more serious offending, and that Singh representsa case where a discharge was granted in circumstances indistinguishable fromMr Kamboj's, also involving a money mule scheme. Mr Heaslip says it flows from9 Police v Kamboj, above n 2, at [14] – [16].10 At [17] – [18].11 Vohra v Police [2018] NZHC 3192; Police v Singh [2019] NZDC 5231; R v Tang [2019] NZHC2056.these cases that had Judge Thomas had adequate regard to each of them, Mr Kambojought also to have been granted a discharge without conviction.[19] Lastly, Mr Heaslip says that Judge Thomas failed to make reference to theaffidavits of Mr Kamboj and of David Fisher, an immigration lawyer, and that thesedocuments provide an outline of the likely consequences of a conviction and supporteda s 106 discharge. Mr Heaslip contends that had Judge Thomas had regard to thesedocuments, a discharge without conviction would have been granted.Respondent[20] Ms Magrath, for the respondent, submits that Judge Thomas undertook theappropriate assessment when determining whether to grant a s 106 discharge, and wascorrect in declining to do so. With respect to the gravity of the offending, Ms Magrathsays that having regard to the substantial sum of money withdrawn from the victim'saccount, the deliberateness of the offending and the mitigating factors personal toMr Kamboj, Judge Thomas correctly assessed the gravity of the offending to be at thehigh end of moderate.[21] The respondent also submits that Judge appropriately considered theconsequences of a conviction. Even though the Judge did not specifically mention theaffidavit evidence outlining the suggested consequences, his sentencing notesdemonstrate that he turned his mind to all the evidence before him. Moreover,Ms Magrath says that it was open to the Judge to find that the immigrationconsequences were insufficient to grant a discharge without conviction, as this wasnot a case where the immigration consequences were unique or unduly severe. In Tang,for example, the consequences of deportation were unique and severe (the defendantbeing separated from her four year old child), and it cannot be said that Mr Kambojwill be subject to the same severe type of consequences.[22] Ms Magrath further says that Judge Thomas did not make an error in hisassessment of like cases, as there are a number of dissimilarities between Mr Kambojand Singh. In Singh, the sum of money deposited into Mr Singh's bank account wasmuch smaller, Mr Singh had no inkling of what the main offender intended to do withhis bank account, and thus the gravity of Mr Singh's offending was accordingly muchlower. Further, the consequences were more severe for Mr Singh, as a convictionwould have inhibited him from completing his education (which he was then part-waythrough). As such, there was no failure to apply like cases.[23] Ms Magrath also says Judge Thomas made no error in stating that Parliamentintended that a conviction be the consequence for offending. Rather, it is submittedthat Mr Heaslip has taken the Judge's comments out of context, as Judge Thomas wenton to say that a conviction will be the consequence of offending, unless theconsequences of a conviction are out of all proportion to the gravity of the offending.Counsel says that if the statements are considered together, the Judge has correctlyrepresented the law.12[24] Overall, having regard to all the evidence, the law and the relevant cases,Ms Magrath says Judge Thomas was correct in finding that the consequences of aconviction were not out of all proportion to the gravity of the offending.[25] If the Court proceeds to deal with the sentence appeal, Ms Magrath submitsthat the Judge imposed the least restrictive sentence possible and that neithercommunity work nor the reparation order are manifestly excessive. As such, thesentence appeal should not succeed.Approach[26] The legal principles relevant to an application for a discharge withoutconviction are well settled. The Court must consider whether the threshold unders 107 of the Sentencing Act has been met. That requires the Court to undertake a three-step analysis assessing:13(a) the gravity of the offence taking into account all aggravating andmitigating factors of the offending and offender;(b) the direct and indirect consequences of a conviction (there must be a"real and appreciable" risk that any given consequence will happen);12 I note that this is a correct reading of the Judge's sentencing notes. I accordingly do not addressthis particular matter any further in this judgment.13 See R v Taulapapa [2018] NZCA 414 at [22].and(c) whether those consequences are out of all proportion to the gravityof the offence.[27] If the offender meets the s 107 threshold, then the Court may go on to considerwhether to exercise the residual discretion under s 106.[28] An appeal against a refusal to grant a discharge is an appeal against convictionand sentence.14 The proportionality test under s 107 is a question of fact requiringjudicial assessment.15 If the appellant can show that the first instance decision waswrong, the evaluation of the s 107 factors is considered afresh.16AnalysisGravity of offending[29] When assessing the gravity of offending, the Court is to consider theaggravating and mitigating factors of both the offending and the offender.17[30] Money laundering is a serious charge and carries a hefty maximum penalty.Judge Thomas, when assessing the gravity of the offending, placed significantemphasis on the harm that was caused by the offending, noting that it had harmed notonly the victim, but it had also harmed international confidence in the New Zealandmarket.[31] There is no doubt that the extent of harm or loss resulting from the offence isan aggravating factor to be taken into account. But these factors are to be consideredin light of Mr Kamboj's very limited role in the overall scheme. Mr Kamboj openeda new bank account knowing what he was doing was likely to be wrong, but there isno suggestion he was aware of the details of the scheme. Although Mr Kamboj had a14 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [8]–[9] and [16].15 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].16 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].17 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27]–[28]."gut instinct" that what he was doing was wrong, he was perhaps naively optimisticin the face of an offer for effectively "easy money".[32] There is also no suggestion the particular scheme in which Mr Kamboj becameinvolved caused losses of $1 million. Nor can it be said that Mr Kamboj's ownoffending harmed confidence in the New Zealand market, rather than the presence andnature of these schemes overall. Other relevant matters, as the Judge identified, areMr Kamboj's youth, lack of prior convictions and considerable reparations to date.[33] In distinguishing the outcome in Singh, it is likely the Judge took into accountthe very small sums of money placed into Mr Singh's account; only a few hundreddollars in that case, as opposed to $10,000 in this case. But given the nature of theschemes overall, and Mr Kamboj and Mr Singh's role in them, the amount of moneytransferred into a mule's account is out of their control. Whether it is $10,000 or $100is determined by another person. For this reason, I do not consider the amount ofmoney transferred through Mr Kamboj's account to be reflective of his personalblameworthiness or culpability, or a materially distinguishing factor from Singh.[34] At the hearing before me, Ms Magrath, while not conceding the point,acknowledged that the Judge may have placed too much weight on the amount ofmoney involved and the harm these schemes generally cause, rather than focussing onMr Kamboj's personal culpability. I consider Ms Magrath's acknowledgement to bea proper one. Taking into account those matters discussed at [31] to [33] above, Iconsider the Judge erred in viewing the gravity of the offending as the higher end ofmoderate. I consider the gravity of Mr Kamboj's offending was low.Consequences of a conviction[35] Mr Kamboj's affidavit in support of the s 106 application indicates that aconviction would result in various negative consequences, including the suggestedloss of a significant investment made by his parents into his education. With regardto this consequence, I agree with Judge Thomas. Mr Kamboj's parents have investedsubstantially in his education, but this investment has already materialised and resultedin Mr Kamboj's Diploma in Information Technology. A conviction cannot detractfrom, or eliminate, that.[36] Mr Kamboj also says that a conviction will result in the loss of any furtheropportunity to study in New Zealand, and will reduce the likelihood of his student visabeing re-issued. Mr Kamboj has been accepted to study for a Bachelor of SoftwareEngineering at the Media Design School, but is unable to start the course asImmigration New Zealand has declined to re-issue his student visa due to the moneylaundering charge (and has subsequently issued Mr Kamboj with a deportation order).David Fisher, Mr Kamboj's immigration lawyer, has sworn an affidavit affirming thatif a discharge without conviction is granted, this will assist Mr Kamboj's visaapplication, but does point out that a discharge without conviction does not guaranteethat a visa will be granted.[37] It is clear that if Mr Kamboj is convicted he will be deported back to India.The deportation order has been issued and Mr Kamboj currently resides in NewZealand unlawfully. Mr Kamboj has sworn that a conviction and deportation will bringshame to his family and will likely inhibit his ability to gain employment. I amsatisfied that this is likely to be true. I am also satisfied that a conviction will result inan inability to carry out further study in New Zealand. And although Mr Kamboj hascompleted some study, further study was intended to springboard him into a successfulcareer in information technology. While a discharge will not guarantee his ability tocomplete this course, as the Judge acknowledged, it would inevitably assist.[38] Ms Magrath also accepted at the hearing before me that a conviction for moneylaundering does carry with it connotations that many other offences do not. It no doubtconveys to a lay person, serious offending involving a lack of trust and honesty. Itwould also no doubt give rise to concern on the part of future potential employers asto Mr Kamboj's honesty and trustworthiness. It would no doubt require somesignificant explanation by him to convey his very limited role in what a lay personmight otherwise consider to be "money laundering". I therefore accept that aconviction on that charge will likely taint Mr Kamboj's good standing going forward,and will hinder his employment prospects.Proportionality[39] As noted, I have found the gravity of Mr Kamboj's offending to be low, and Iam satisfied the consequences of a conviction are reasonably serious. The questionnow, is whether those consequences are out of all proportion to Mr Kamboj'soffending?[40] On balance, I am satisfied that the consequences of a conviction in this caseare out of all proportion to the gravity of Mr Kamboj's offending. In a sense, theoffending was a serious mistake made by a young man, in return for a very smallamount of money, in circumstances where he knew what he was doing was likely toinvolve something wrong. Through Mr Kamboj's ongoing reparations, the immediatefinancial harm of his offending will be remedied. Conversely, the consequences of aconviction for what on the face of it implies very serious offending, are in my viewout of all proportion to the gravity of the offending. While a discharge withoutconviction will not necessarily ensure Mr Kamboj will be able to complete hisproposed studies in this country, a conviction will almost certainly lead to hisdeportation. Further, but importantly in my view, the very stigma which attaches to acharge such as money laundering, and the long term negative effects it is likely to havein connection with future employment opportunities, also suggests a conviction is outof all proportion to the offending.[41] I am accordingly satisfied that the s 107 threshold is met. Having reached thisconclusion, there is no basis to exercise the residual discretion against granting adischarge.[42] I am therefore satisfied the Judge erred in declining to grant a discharge withoutconviction.Result[43] The appeal is allowed.[44] The application for a discharge without conviction is granted. Mr Kamboj'sconviction and sentence are quashed. Pursuant to s 106(3)(b) of the Act, I make anorder that Mr Kamboj is to pay the sum of $5,500 by way of compensation. In otherwords, the reparations ordered by Judge Thomas are effectively maintained, givenpayment of such reparation/compensation is a not insignificant reason why the gravityof Mr Kamboj's offending is low.18____________________Fitzgerald J18 Ongoing payments made by Mr Kamboj since sentencing may obviously be off-set against thetotal amount payable.