SINGH v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2023] NZHC 2139

SINGH v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2023] NZHC 2139 [10 August2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000159[2023] NZHC 2139BETWEEN RAJVINDER SINGHAppellantAND MINISTRY OF BUSINESS, INNOVATIONAND EMPLOYMENTRespondentHearing: 24 July 2023Appearances: L Cordwell for AppellantH Watts for RespondentJudgment: 10 August 2023JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 10 August 2023 at 4pm.Registrar/ Deputy RegistrarSolicitors/Counsel:Crown Solicitor, AucklandLester Cordwell, Barrister, AucklandIntroduction[1] Mr Rajvinder Singh (the appellant) pleaded guilty to a representative charge ofproviding false or misleading information to an immigration officer, being an offenceagainst s 342(1)(b) of the Immigration Act 2009, having a maximum penalty of sevenyears imprisonment and/or a fine not exceeding $100,000.1 At his sentencing in theManukau District Court on 31 March 2023 the appellant applied to be dischargedwithout conviction pursuant to s 106 of the Sentencing Act 2002. His application wasdeclined by Judge S Moala,2 and he was convicted and sentenced to 80 hours'community work.3 He now appeals the Judge's decision declining hiss 106 application.Offending[2] The representative charge to which the appellant pleaded guilty alleged thatbetween 2013 and 2017 he had provided sponsorship forms and supportingdocumentation in support of a series of work and residence visa applications submittedto Immigration New Zealand (INZ), knowing that the information he provided in theforms and documents contained the false name and details of the sponsored applicant.Background[3] The appellant is a 51-year-old Indian born male with New Zealand citizenship.For approximately 14 years he was the manager of the Nanaksar Thath Isher Darbar,a Sikh temple in Manurewa (the Temple). The organisation is a global charitableorganisation devoted to serving and promoting the Sikh faith.[4] The prosecution Summary of Facts outlines the two relevant types of visainvolved in the appellant's offending: student visas and work visas. Any person whois not a New Zealand citizen or residence visa holder who wishes to enter New Zealandis required to apply for a visa from offshore and apply for entry permission at theborder, before being permitted to enter New Zealand under a visa waiver. The statedpurpose of the student visa scheme is to contribute to New Zealand's sustainable1 Immigration Act 2009, s 355(1).2 Ministry of Business, Innovation and Employment v Singh [2023] NZDC 6830.3 Ministry of Business, Innovation and Employment v Singh [2023] NZDC 12362.economic development by facilitating the entry of genuine students with a focus onattracting and developing students who have the skills and talent New Zealand needs.In relation to work visas, the objective of INZ's work visa instructions is to contributeto developing New Zealand's human capability base by facilitating the access of NewZealand employers and industry to global skills and knowledge. This complementsthe government's education, training, employment and economic developmentpolicies but also ensures that employment in New Zealand of non-New Zealandcitizens and residence class visa holders does not undermine the wages and conditionsof New Zealand workers.[5] The religious worker scheme comes within the work visa scheme. Thescheme's objective is to provide New Zealand communities with the opportunity topractise, maintain and advance their religious beliefs. To apply for a religious workervisa, an applicant must complete an application form, provide evidence of at least twoyears of training and/or experience relevant to the religious work, and be sponsoredby a religious organisation that has the financial ability to meet all sponsorshipundertakings. An applicant must also meet the health and character requirements ofINZ.The sponsored applicant[6] The person sponsored by the appellant is Tarsem Singh, a 32-year-old Indianborn male who was associated with the Temple whilst in New Zealand on a studentvisa from 2010 to 2011. He arrived in New Zealand on 2 March 2010. His studentvisa conditions stated that he was to study a diploma of information technology atComputer Power Institute New Zealand (CPI). However, Tarsem Singh did not attendany course at CPI and instead spent approximately eight hours per day at the Templebetween March 2010 and July 2011. He volunteered to assist with the building of aretaining wall at the back of the Temple, and on Sundays he would work as part of theworking bee group along with around 20 other volunteers. Through his involvementin this work he and the appellant became friends, and he would contact the appellantdaily and assisted with any work required around the Temple as well as on theappellant's own properties, as directed by the appellant.[7] On 6 April 2011, Tarsem Singh submitted another student visa application toINZ. However information obtained by INZ from CPI revealed that Tarsem Singh hadnot attended any courses at the institute. Accordingly, on 7 June 2011 INZ declinedthe application on the basis that he was not a genuine student and his presence inNew Zealand was unlawful. Tarsem Singh then departed New Zealand on 9 July 2011.[8] On 30 August 2012, Tarsem Singh submitted a work visa application to INZthis time under the religious worker category, stating that he had received training inIndia as to religious duties. His application was sponsored by the Temple. In hisapplication Tarsem Singh declared that he was working as an assistant priest with theTemple's organisation in Delhi. The appellant completed the sponsorship form onbehalf of the Temple in Auckland. Due to INZ concerns regarding Tarsem Singh'simmigration history in New Zealand, INZ declined his application.The appellant's offending[9] Between September 2012 and February 2013, Tarsem Singh obtained afraudulent birth certificate in the name of Simranjit Singh, born 13 September 1987,and by using the fraudulent birth certificate, Tarsem Singh then obtained a genuineIndian passport in the name of Simranjit Singh. On 5 February 2013, Tarsem Singhsubmitted another application to INZ for a religious worker visa under the false nameof Simranjit Singh.[10] The appellant sponsored the application on behalf of the Temple. INZapproved the religious worker visa application on 4 March 2013. Tarsem Singh,posing as Simranjit Singh, arrived in New Zealand on 1 April 2013 and was grantedentry by INZ. Following his arrival he lived at the Temple and resumed assisting withdaily work around the temple under the appellant's supervision.[11] On six occasions the appellant, on behalf of the Temple, sponsored applicationsby Tarsem Singh for a religious worker visa under the false name of Simranjit Singh,knowing that the information provided to INZ in the applications was false.[12] On 10 July 2013 INZ received an application for a religious worker visa fromTarsem Singh using the false name of Simranjit Singh. The sponsorship form requiredthe appellant as the applicant's sponsor, to provide and confirm the accuracy ofpersonal information regarding the applicant. The sponsorship form stated theapplicant's name as being Simranjit Singh and his date of birth 13 September 1987.The form included a declaration signed by the appellant stating that the informationsupplied in the form was true and correct. The appellant's declaration had been madeand signed on 2 July 2013 before a Justice of the Peace who had witnessed hisdeclaration. The sponsorship form also attached a letter signed by the appellant dated9 July 2013, naming the sponsored person as Simranjit Singh. The appellant knewthat the information contained in the sponsorship form and the sponsorship letter wasfalse. INZ granted the application and issued the visa on 22 July 2013. It remainedvalid until 25 March 2014.[13] The appellant subsequently provided four further false declarations andsponsorship letters to INZ in support of applications in the name of Simranjit Singhfor further religious worker visas. They were submitted to INZ on: 20 February 2014;5 March 2015; 15 February 2016; and 17 March 2017. In each case the appellantsupported the visa applications with declarations and sponsorship letters to confirmthat the personal details of the applicant were true and correct and that he was beingsponsored by the appellant on behalf of the Temple. The appellant made thedeclarations and provided them and the sponsorship supporting letters which hesigned, knowing that the information in the documents was false and the person namedas Simranjit Singh in the visa applications and supporting documents, was in factTarsem Singh. In each case INZ granted the visa applications thereby permitting thenamed applicant to remain in New Zealand for a further period of 12 months.[14] On 29 March 2017 Tarsem Singh under the false name Simranjit Singh madean application to INZ for New Zealand residency under the religious worker category.Once again the appellant sponsored this application on behalf of the Temple. In thesponsorship form the appellant provided false personal information regarding theapplicant, and again provided a signed declaration stating that the information wastrue and correct. The appellant once again provided a sponsorship letter naming thesponsored person as Simranjit Singh. INZ granted the residency application on17 June 2017 with conditions stipulating that Simranjit Singh was permitted to workas an assistant priest for the Temple in Auckland until 2022.[15] The appellant's offending was discovered when INZ undertook aninvestigation into Tarsem Singh. Prior to the INZ investigation, in April 2018 theappellant had resigned from the temple.District Court decision[16] Judge Moala commenced her s 106 decision by noting that the appellant hadpleaded guilty to a representative charge of providing false or misleading informationto an immigration officer, being an offence carrying a maximum penalty of sevenyears' imprisonment and/or a $100,000 fine. She then referred to the writtensubmissions filed in support and in opposition to the appellant's s 106 application, andto the oral evidence she had heard from four witnesses who had provided affidavits insupport of the appellant's s 106 application.[17] Having set out the facts of the appellant's offending, the Judge then addressedthe gravity of the offending. She considered the high level of premeditation to be asignificant aggravating feature, together with the sustained conduct of the appellantencompassing seven fraudulent sponsorship forms which had been completed betweenJuly 2013 and March 2017.4 She described the offending as involving a directchallenge to the integrity of the immigration system of New Zealand, and underminingNew Zealand's sovereign control of its borders and ability to determine who shouldbe granted a particular immigration status.5[18] The Judge disagreed with the submission that the appellant did not obtain anadvantage from his offending. She said:[28] You have outlined in the affidavits filed that you did not obtain anadvantage, but I agree with the prosecutor that there was an advantage in thatyou had the service of Tarsem Singh to undertake labour at the temple whenyou were in charge at the temple, as he had previously done in 2010 and 2011.This offending enabled Tarsem Singh to continue to provide unpaid labour atthe temple and to assist and support you. This was given, it can be said, inexchange for you supporting his fraudulent applications.[29] I take into account that this offending only came to light whenImmigration New Zealand did an investigation in relation to Tarsem Singh.You have provided evidence to the Court that you resigned from the temple in4 Singh v Ministry of Business, Innovation and Employment, above n 3, at [26].5 At [27].April 2018 and that you left the influence of your spiritual leader at that time.But you took no steps to draw this fraud to the attention of the authorities andit was not until you were charged that this offending came to light.[19] The Judge then addressed the evidence of the appellant and three of hissupporters to the effect that he had committed the offending because his spiritualleader and chairman of the Nanaksar Trust worldwide, Baba Amar Singh (referred toby the appellant as "Baba Ji") had told or instructed him to do it. The Judge said:[30] You say that you were following his orders, that you were under hiscontrol and influence and manipulation. That you were scared of him becausehe had been violent towards you and you did what he told you to do becausehe was in charge. He was the kind of person who micromanaged everydecision that was taken at the temple. There was no documentation to provethis but you and the other witnesses say that the way that this would happenis that he would call or one of his messengers would call constantly withinstructions. You say that because he was like a god on earth, or your spiritualleader, you were under his control and this is why you completed and signedthese forms, knowing that the information was false.[20] The Judge then said:[31] As I said to you when I questioned you when you gave evidence, it isdifficult to accept that someone who was not even present in New Zealandoften, who was in his seventies and eighties, would engender such fear in youthat you would commit a crime in this country. I find it difficult to accept thathe was micromanaging your every move, as well as all the other temples thathe was in charge of all over the world. The concept of faith and belief andfollowing a religious leader is not unique to the Sikh faith. Many of us havecultural and religious leaders that we hold in high regard. Our faith or faith inour leaders or in a church is not justification for breaking our law.[32] The other witnesses who gave evidence supported your evidence thatyou were acting under his orders or control and that he could be aggressiveand violent. I do not accept that this evidence reduces your culpability. Youare a grown man who held a number of leadership roles at the temple. Youare not a young person being influenced by a violent leader of a local gang.You helped set up the childcare service. You served on the Trust both for thetemple and for that daycare centre. You were a leader and administrator at thetemple. You handled all the financial information that was to be given over tothe accountant. You dealt with community leaders, with the local council,with government departments. You were dealing with legal processes andrules all of the time. You knew you were breaking the law, but you did itanyway. Over and over. This is not a one-off mistake, as you describe it. Thisis a course of conduct over a number of years. Even if I were to accept thatyou were acting under instruction, it was clearly open to you to refuse aninstruction to commit fraud.[21] The Judge then turned to consider the personal mitigating factors of theappellant, noting that the appellant has no previous convictions and that he hadprovided multiple letters of support written by friends and associates and by peoplefrom the community who all speak very highly of him and the work that he has doneat the Temple and in the community. The Judge also noted that the information fromthe appellant's family describing his as being a good husband and father. The Judgealso noted and took into account that the appellant had pleaded guilty to the charge.[22] The Judge said that having read the appellant's affidavit and having heard himgive his evidence she had concluded that he has limited remorse. The Judge noted thatthe appellant had sought to deflect blame for what he had done and what had happenedonto his spiritual leader, Baba Ji. She further noted that the appellant had told theprobation officer who interviewed him for the pre-sentence report, that he had signedthe documents submitted to INZ "blindly", and said he had not known the name hadbeen changed.6 The Judge said that explanation to the probation officer clearlydisplayed his lack of acceptance or remorse for the offending. The Judge consideredthat taking all those factors into account, the seriousness of the gravity of the offendingwas appropriately assessed as moderate to serious for offending of its type.7[23] The Judge then proceeded to consider the direct and indirect consequences ofa conviction advanced by the appellant. These being that: the appellant would beostracised by his community; his financial advisor's license would be revoked withthe consequence that would have to cease working as a financial advisor; and he wouldlose his employment position with the Police as a file management support officer.[24] Addressing each of these matters, the Judge found that the appellant had failedto show there was a real and appreciable risk that any of the claimed consequenceswill ensue and that they are linked to the fact of conviction. She found that the mattersrelied on by the appellant are consequences of the offending he had pleaded guilty torather than consequences of the entering of convictions.8[25] Then turning to the disproportionality test in s 107 of the Sentencing Act, theJudge said that she was not satisfied that if the appellant was convicted of the offence,6 At [35].7 At [37].8 At [43].the direct and indirect consequences of a conviction would be out of all proportion tothe gravity of his offending,9 and she therefore declined the application.10[26] The Judge sentenced the appellant on the same day. She adopted a startingpoint of around 18 months' imprisonment for the offending;11 allowed a discount of25 per cent for his guilty plea; and a further discount of 20 per cent to take account ofthe appellant's lack of any previous convictions, and his previous good character.Having regard to the good work the appellant has done in the past, and what he hasgiven to the community, together with his potential, the Judge concluded that theprinciples and purposes of the Sentencing Act would be served by imposing acommunity-based sentence, and as I have noted above she entered a conviction andsentenced the appellant to 80 hours' community work.12Fresh evidence on appeal[27] The appellant applies to adduce fresh evidence contained in two affidavits insupport of his appeal. The first is an affidavit by appellant himself dated 6 July 2023to which is exhibited correspondence from the New Zealand Police Association, theNew Zealand Financial Services Group and the appellant's insurance companyreferring to the consequences of his conviction. The second affidavit is by ProfessorPaul Morris, dated 6 July 2023. Professor Morris is a professor of religious studies inthe school of social and cultural studies at the Victoria University of Wellington. Inhis affidavit he explains the nature of Sikh sectarian groups set within the widercontext of Sikhism, and comments on the likely impact of a conviction on the appellantwithin and beyond the Nanaksar and Sikh communities in terms of Sikh notions ofethics and propriety within the framework of minority, migrant diaspora communities.[28] Ms Watts for the respondent does not oppose the admission of the exhibitsannexed to the appellant's affidavit. However, although she accepts that they are freshevidence in terms of the appeal she submits they are not particularly relevant.Ms Watts opposes the admission of the Professor Morris' affidavit. She says that as9 At [44].10 At [45].11 Singh v Ministry of Business, Innovation and Employment, above n 2.12 At [5].Professor Morris' evidence could have been produced before the District Court it isnot fresh evidence. Ms Watts submits that the significance of the appellant's failureto produce Professor Morris' evidence in the District Court is well illustrated by theoral evidence adduced before Judge Moala. She submits that in any event, ProfessorMorris' evidence is not sufficiently relevant as this appeal turns on the consequencesof conviction, and Professor Morris' evidence does not assist with that. Ms Wattsfurther submits that the Professor's evidence goes beyond what is appropriate forexpert evidence in criminal proceedings, by making assertions as to the appellant'sstate of mind.[29] The test for the admission of fresh evidence on appeal is settled. Theoverriding test is whether it is in the interests of justice to admit the evidence. Theevidence must be sufficiently fresh, credible and cogent in the sense that it mightreasonably have led to a different verdict.13[30] The appellant accepts that Professor Morris' evidence is not fresh in that itcould have been obtained and filed prior to the hearing of the appellant's s 106application. However, Mr Cordwell submits that Professor Morris' evidence is clearlycredible as it provides this Court with expert opinion from a world-renowned authorityin religious studies. He submits that the evidence provides the Court with objectiveexpert evidence regarding the influence that the leader of the Nanaksar Sikh Temple,Baba Ji, can have on someone such as the appellant. He submits that is especiallyimportant given the remarks made by the Judge in the course of her questioning of theappellant, and her comment that she found it was hard to believe that the appellant wasinfluenced. Mr Cordwell says Professor Morris' evidence bridges the understandingdivide that he says is evident from the Judge's remarks.[31] I consider that the evidence set out in the appellant's affidavit and in theannexed exhibits is evidence that is fresh, credible and relevant to the Court'sassessment of the consequences of a conviction. And I admit the appellant's affidavitand the exhibits as fresh evidence for the appeal.13 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [116]–[126].[32] While I agree with the respondent that Professor Morris' evidence is not freshas it is evidence that could have been obtained and produced to the District Court whenthe s 106 application was heard, I also consider that it is cogent and relevant as itprovides the Court with information about Sikhism and addresses the existence ofcoercive control as alleged by the appellant and rejected by the Judge. Ms Watts alsosubmits that the Court of Appeal's observation in Carroll v R in relation to s 27 culturalreports is also relevant in the present context.14 The Court in Carroll commented that"such reports should not be produced for the first time on appeal. The questionswhether a cultural report justifies any allowance in the sentence, and if so how much,are best answered by the trial judge."15 The Court of Appeal said the proper coursemay be to remit the matter to the trial judge for re-sentencing.16 Ms Watts submits thatrather than admitting Professor Morris' affidavit evidence the matter the Court shouldremit the s106 application back to the District Court for re-hearing.[33] I consider that it is in the interests of justice for the Professor's evidence to beadmitted for the purposes of this appeal. Although it does not provide substantivelynew information, it nevertheless provides relevant and supporting information to thatprovided by the appellant to the District Court Judge, and it does provide additionaland authoritative evidence regarding those relevant issues. I therefore consider that itis in the interests of justice for Professor Morris' affidavit to be admitted as freshevidence for the purposes of the appeal. Leave is accordingly granted for bothaffidavits to be admitted as fresh evidence on appeal.Law[34] An appeal against a refusal to grant a discharge without conviction is acomposite appeal against conviction and sentence.17 The appellant must show that amiscarriage of justice has occurred as a result of a material error by the Judge inentering a conviction, or that a miscarriage of justice has occurred as a result of an14 Carroll v R [2019] NZCA 172.15 At [8].16 At [8].17 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [6]–[16].error by the Judge applying the correct principles found in s 107 of the SentencingAct.18[35] A discharge without conviction is governed by ss 106 and 107 of theSentencing Act:106 Discharge without conviction(1) If a person who is charged with an offence is found guilty or pleadsguilty, the court may discharge the offender without conviction, unlessby any enactment applicable to the offence the court is required toimpose a minimum sentence.(2) A discharge under this section is deemed to be an acquittal.107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unlessthe court is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.[36] Section 107 is a "gateway through which any discharge without convictionmust pass".19 Section 106 is an evaluative judgment and is not a matter of discretion.20The Court is required to consider: the gravity of the offence; the direct and indirectconsequences of a conviction; and whether the consequences are out of all proportionto the gravity of the offence.21 The ordinary principles governing general appealsapply and this Court must reach its own conclusion on the merits.22SubmissionsAppellant's submissions[37] Mr Cordwell submits that the Judge erred in her assessment of the gravity ofthe offending as being of a moderate to serious level. He submits that the offendingis properly assessed as being of a low level of seriousness. He submits the Judge'sreliance on the premeditation and period of the offending ignored the evidence that18 at [12].19 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].20 At [11]; and Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [12]–[13].21 Blythe v R, above n 23.22 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.Baba Ji had an overriding influence on the appellant who when carrying out theoffending was following Baba Ji's instructions because he considered him to hisspiritual leader. Mr Cordwell submits that the appellant's admitted knowledge that theinformation he was providing to INZ was misleading and false, should have beenmitigated by recognition of the pressure that had been brought to bear on him by hisspiritual leader who had instructed him to sign the documents on behalf of the Temple.[38] Mr Cordwell says there was no evidential basis for the Judge's finding thatTarsem Singh provided unpaid labour in exchange for the appellant supporting hisfraudulent applications. He says that Tarsem Singh worked full-time at theEducational trust and volunteered for the Temple trust, therefore he was a religiousworker of the Temple and was not working for the appellant as the Judge found hewas. Furthermore says Mr Cordwell, there is no evidence that the appellant receivedany direct or indirect advantage from his offending. Mr Cordwell says bycharacterising Tarsem Singh's work contributions as unpaid labour, the Judge failedto fully acknowledge the concept of seva.[39] Mr Cordwell further submits that the appellant's conduct of not drawingTarsem Singh's fraud to the attention of authorities, and his failure to co-operate withINZ investigators, was the exercise of a fundamental human right of silence, whichshould not have been a factor in the Judge's assessment of the gravity of the offending.And Mr Cordwell submits there was significant evidence of the appellant's genuineremorse for the harm his offending has caused.[40] Mr Cordwell submits that the influence of Baba Ji on the appellant wasimproperly characterised by the Judge as being an excuse whereas it should properlyhave been treated as being an explanation for the appellant's offending.23 He says thatthere was evidence before the District Court of the emotional and mental manipulationof the appellant, as well as physical assaults at times, and that it was almost impossiblefor the appellant to question directions he was given by Baba Ji, let alone refuse tofollow them. Mr Cordwell says the Judge failed to appreciate that Baba Ji could exert23 Since the hearing in this Court Mr Cordwell has filed further submissions having received theevidential transcript of the District Court hearing before Judge Moala. I have considered bothMr Cordwell's further submissions regarding the approach taken by the Judge during the hearingand the transcript of evidence provided.such power over someone like the appellant to an extent where they would follow theinstructions without question. He refers to Professor Morris' evidence that Baba Ji'sinfluence over the appellant for decades is a most plausible and reasonable account ofwhy the appellant considered himself as being without agency and having no choicebut to follow the instructions of his god, which he repeatedly did, in spite of knowinghis immigration declarations were untrue.[41] Regarding the Judge's assessment of the consequences of a conviction,Mr Cordwell says that the Judge should have accepted that a conviction would affectthe appellant's standing in the Indian community. He says the Judge also failed toappreciate the real risk that the Police Association would terminate the appellant'sposition and his financial advisor's license would be revoked. These consequencesare described in the appellant's further affidavit in which he confirms that as a directresult of the conviction being entered, he no longer has paid employment.Mr Cordwell also says that the appellant's ability to obtain any form of insurance hasnow been affected by the entering into of a conviction.[42] Mr Cordwell therefore submits that having regard to the matters set out in theappellant's affidavit regarding the actual consequences of the conviction and havingregard to the matters set out in Professor Morris' affidavit, this Court can be satisfiedthat the consequences of the conviction wholly outweigh the gravity of the offending.And, that consequently the District Court Judge erred in her decision dismissing theappellant's application for a discharge without conviction under s 106.Respondent's submissions[43] Ms Watts submits that the Judge was correct to decline the appellant'sapplication. She says the Judge did not err in her assessment of the gravity of theoffending and she was correct to find that the asserted consequences flowed from theoffending, rather than the conviction she would impose.[44] Regarding the issue of Baba Ji's influence, Ms Watts submits that religiouspractices which contravene law are not a mitigating factor in sentencing,24 and she24 R v Anderson (CA27/04), 23 June 2004 at [9].notes that this Court has recently held 'religious extremism' to be an aggravatingfeature.25 Ms Watts submits that as a matter of public policy, religious influences thatfall significantly short of compulsion should not amount to a substantially mitigatingfeature in sentencing, and she notes the appellant acknowledges that Baba Ji'sinfluence was not such as to give rise to a defence of duress.[45] Ms Watts submits that the Judge accurately noted: the period of offendingspanned over almost four years; the appellant is a person who is clearly capable andheld positions of authority himself; Baba Ji was aged and largely not physically presentin New Zealand; and the appellant was able to free himself of Baba Ji's influence byleaving the Temple in 2018. Ms Watts says these factors all weigh against a findingthat the appellant was controlled by Baba Ji to such an extent that it warranted beingtreated as a mitigating feature of the offending.[46] Ms Watts submits that reductions for remorse are a matter of fact and judgment,and the Judge was entitled to consider the appellant's blaming of Baba Ji as a reflectionof his lack of substantial remorse for his actions. Ms Watts responds to the appellant'ssubmission that there was no evidence of Tarsem Singh providing unpaid labour, bynoting that the agreed summary of facts states that he was engaged in a volunteeringrole at the Temple eight hours a day for 14 months.[47] Ms Watts submits that the consequences of the conviction relied on by theappellant are consequences that arise because of his conduct, being significantdishonesty offending against a government entity. Both his positions with Police andas a financial advisor require a high level of trust and integrity and his offending is abreach of their code of conduct irrespective of whether the appellant is convicted.DiscussionProfessor Morris' expert evidence[48] The fresh evidence on appeal, including Professor Morris' expert opinion thatwas not before the District Court Judge, does provides this Court with a helpful and25 R v Singh [2022] NZHC 1188 at [35].detailed explanation of the nature of the monitoring and control exerted by the spiritualleader Baba Amar Singh Ji (Baba Ji) over the activities of the Temple and the pressurethat would have put on the appellant to comply with his instructions and carry out hiswishes. Professor Morris explains:Baba Amar Singh Ji (Babji), the spiritual leader and sant of the Nanaksargroup in Auckland and beyond, exhibits characteristics of a Sikh sectariansant, that is, absolute authority, being an embodiment of the truth and a conduitor gateway to God and his blessings, inhabiting a space between daily anddivine life that blurs the distinction between sacred/religious and everydaydecisions, and who is held to have a superhuman grasp of realities unavailableto normal beings. The sant is dedicated to the glory of God and uses his divinepowers and authority to further the projects he deems necessary for such glory.The history of Sikh sants includes a number of most volatile personalities andthe affidavits fild (sic) in the District Court indicate that Baba Amar Singh Ji'spersonality includes a short temper and being prone to physical and verbaloutbursts, in person and on the telephone. And further that he has a controllingpersonality and micromanages all his ventures and that this was exerted ashuge and sustained pressure on his chosen devotees via his close disciples.The combination of extreme volatility and total control coupled with theunbridled authority of the sectarian Sikh sant would prove very hard to resistor challenge especially by a devotee like [the appellant].In conclusion, it is my considered opinion that Babaji's "undue influence"over [the appellant] for decades is a most plausible and reasonable account ofwhy the [appellant] understood himself to have been without agency in havingno choice but to follow the personal instructions of his God(man), and herepeatedly did so, in spite of being aware of the untruth of his immigrationdeclarations as he faithfully followed Babaji's hukam. While this would be arare occurrence in modern post-Christian societies, this is less so in religiouscultures and diaspora religio-cultural enclaves where such influences, whileselective, are more evident.[49] In his affidavit filed in the District Court in support of his s 106 application theappellant describes the strict and demanding manner in which Baba Ji exercisedcontrol over the Temple, its leaders, and its activities. He says:The spiritual leader controlled the daily affairs of the Temple and micro-managed the routines. Being the head of the Trust, he would set the dailyroutines and practices to be followed. He micro-managed all the aspects ofthe Trust including operations, religious stage, religious workers, immigrationand financial matters. I had to take his approval before carrying out any taskat the Temple Trust.I accept the summary of facts before the court. I pleaded guilty on 29 June2022 in the Manukau District Court...I signed the immigration documents in question under the instructions andunder the trust and reverence of the Spiritual Leader. I do, however, acceptthat I signed the sponsor documents on behalf of the Temple knowing that theywere under another name of someone who I knew had previously beendeported and was applying under another name. In my heart of hearts I knewthe applications were misleading but I was so scared of the spiritual leader Isigned them when he directed me to. I did not question him because I stillbelieved anything he said or did was correct. I only wish I had had the strengthto challenge him but at the time but [sic] I thought it was impossible especiallyafter all the ways he had belittled me in the past either physically, emotionallyor [financially] when I had tried to challenge him in the past.I did not receive any direct or indirect benefit from signing the documents inquestion.[50] I accept the expert evidence of Professor Morris and his helpful explanation ofthe context and the effect of the religious authority exerted by Baba Ji over theappellant regarding his work and activities at the Temple. I also accept the appellant'sevidence when he says he was directed by Baba Ji to provide support forTarsem Singh's applications to INZ for work visa and a residence visa to enable himto enter and live in New Zealand. However, while the coercive nature of Baba Ji'sauthority and directions to an extent explains the appellant's offending and therebymitigate the gravity of the offending to a limited degree, it cannot and does not, justifyor excuse it.The gravity of the offending[51] As the appellant acknowledges, he was well aware that the information he wasproviding to INZ in support of the visa applications made in the name ofSimranjit Singh were false, and that the information was being provided with theintention of misleading INZ into believing the information was true and correct and inorder to obtain work visas that would not be issued to Tarsem Singh had he beencorrectly identified as the real applicant. In my view it is important when assessingthe gravity of the appellant's offending to note that it involved repeated offendingspread over a period of approximately four years. The appellant's offending wascarefully premeditated and involved not only the provision of false informationregarding the true identity of the person applying for the visas, but also the creation ofa series of false sponsorship letters, and making a series of false declarations to Justicesof the Peace. The appellant acted deliberately and dishonestly on multiple occasionseach time knowing that the information and the documents he was providing was falseand he did so intending to mislead the INZ officials responsible for considering anddetermining the visa applications.[52] Offending of that kind is very serious because it subverts the integrity ofNew Zealand's immigration controls and ability to determine, who is permitted toenter this country, for what purposes, and for how long. Being granted permission toenter New Zealand is a significant privilege, and conduct intended to mislead INZ andcircumvent the immigration processes amounts to serious offending. The seriousnature of this type of offending is evident from Parliament's provision of the maximumpenalty of seven years imprisonment and/or a $100,000 fine.[53] The appellant was obviously well aware of the importance and value placed onNew Zealand's immigration controls, and he chose to disregard the law and tosuccumb to his spiritual leader's wishes and directions. While the spiritual authorityand coercive influence of Baba Ji by directing him to break the law in order to assistTarsem Singh to gain illegal entry to New Zealand was the appellant's apparentmotivation, such considerations, irrespective of the religious significance toindividuals, cannot displace or override their primary responsibility of complying withNew Zealand's laws, and any notion to that effect would be contrary to and underminethe rule of law.[54] It is clear from the Judge's decision regarding the s 107 analysis that the effectof the appellant having been influenced by others to offend, did not reduce the gravityof his offending to such a degree as to favour his discharge. The Judge commentedthat the appellant was a mature adult and an active participant in the offending.26 Irespectfully agree. The appellant was well able to decide that he would not do whatBaba Ji wanted him to do if it involved dishonesty and breaking the law. By resigningfrom the Temple Trust and terminating his connection with the Temple in April 2018,after concerns following Baba Ji appointing one of his relatives as a new trustee of the26 R v Singh, above n 27, at [35].Temple Trust, and because he was not prepared to tolerate what he considered to beBaba Ji's "divide and rule" policy, the appellant demonstrated that he was well able toact independently of Baba Ji's wishes and influence.[55] While I accept that the religious context was no doubt a factor contributing toand mitigating the gravity of the appellant's offending, I consider that the appellantalways retained agency and an ability to act independently and in his own interestswhen he chose to. I consider that the influence and any instructions he received fromBaba Ji or his messengers acting on his behalf, is a factor that reduces what I wouldotherwise consider serious offending to be moderately serious offending.The direct and indirect consequences of a conviction[56] In his affidavit sworn in support of his appeal the appellant says that since theDistrict Court declined his s 106 application and entered a conviction on the charge,the financial advisor's licence which he held in the name of his company V XL Ltdhas been cancelled by NZ Financial Services Group Ltd, so that his ability to workand earn income as a financial advisor has been terminated. In relation to hisemployment with the New Zealand Police as a file manager, the appellant hasexhibited a letter dated 25 May 2023 addressed to the Court from the Senior LegalOfficer of the New Zealand Police Association regarding the consequences of aconviction on the appellant's employment. The Police Association Legal Officer says: Following his guilty plea, Police moved to suspend [the appellant] andexclude him from the workplace. He has remained suspended throughout theCourt process. He has not been able to return to work, even on restricted oralternative duties. This indicates to me that Police are looking at this matteras likely serious misconduct and that dismissal may result.New Zealand Police, like any other employer, is required to take into accountall of the circumstances when determining an appropriate employmentoutcome (Section 103A, Employment Relations Act 2000). While it is notdeterminative, the presence or absence of a conviction necessarily forms partof the relevant circumstances that must be considered by the Commissioner.Where the offending is dishonesty related and a conviction is entered, it seemsvery likely that dismissal will follow. A discharge without conviction would,if granted, indicate the weight the Court has given the entirety of thecircumstances. This may have some influence on the employment outcomefor [the appellant].[57] The appellant also explains that since advising his insurance company, AMIInsurance, of his conviction for providing false and misleading information to INZ,AMI has cancelled his insurance policies with the company.[58] The appellant says that his work as a financial advisor and his employment asa file manager with the New Zealand Police were his only sources of income, and ifhis employment with the Police is terminated, he will be unemployed and unable tomeet the majority of his financial obligations. The appellant says:Since the conviction I have not socialised with anyone from the Sikh or widerIndian community. I have only spent time with my family. I feel that I havelost the respect of the community because I now have a criminal convictionthat has been well publicised.I know my community and they can be very judgmental about an issue likethis. In the Punjabi community it takes a long time to build up respect, but asingle wrong move can mean that it is gone in a minute. I think that such areaction can be attributed to the orthodox and class culture which is deeplyingrained in the Punjabi community and to a certain extent the wider Indiancommunity.[59] In relation to the consequences of a conviction on the appellant it is importantto recognise that the nature and responsibilities of his work as a financial advisor andalso his work as a file manager with the New Zealand Police require integrity andhonesty. The appellant has admitted the offending and that he acted dishonestly inrelation to the provision of multiple visa applications over an extended period of fouryears. The significance of that admission does not change as result of the impositionof a conviction. The decision by NZ Financial Services Group Ltd to terminate theappellant's financial advisors licence is the natural and expected consequence of hisadmission of offending involving dishonesty. Similarly, the decision taken by theappellant's insurer to terminate his insurance policies.[60] The adverse effects of the conviction on the appellant's reputation and standingwithin the Sikh and Indian communities is the expected consequence of his admissionof dishonesty and being convicted of offending against the provisions of theImmigration Act, they are certainly not disproportionate consequences due to theentering of a conviction.[61] As is clear from the letter written on behalf of the New Zealand PoliceAssociation the New Zealand Police, as the appellant's employer, is yet to determinewhether or not the appellant will be retained or dismissed from his employment. Thatdecision will no doubt be informed by an assessment of the nature and gravity of theappellant's admitted offending as detailed in the agreed summary of facts and asreferred to in the appellant's affidavit. The sustained and repeated acts of dishonestyon the part of the appellant will obviously be relevant to any such assessment and theimposition of a conviction or absence of a conviction will not alter the nature andextent of the appellant's admitted dishonesty.The s 107 assessment[62] Having regard to my assessment of the gravity of the appellant's offendingwhich I have found was moderately serious, and my finding that the termination of hisfinancial advisors licence and insurance policies are the commonly expectedconsequences of his admission of dishonesty in relation to the provision of informationto INZ, and also noting that the question of whether his continued employment withthe New Zealand Police will be similarly informed by his admissions of dishonesty, Ifind that the consequences identified and relied on by the appellant are consequencesof his dishonesty rather than consequences of the imposition of the conviction on thecharge. I accordingly find that the adverse consequences of a conviction being enteredare not out of all proportion to the gravity of the offending.Conclusion[63] The appellant has failed to show that a miscarriage of justice has occurred as aresult of a material error by the Judge in declining to grant the appellant's applicationfor a discharge pursuant to s 106 of the Sentencing Act and entering a conviction onthe charge of providing false or misleading information to an immigration officer,being an offence against ss 342(1)(b) of the Immigration Act. The appellant has alsofailed to show that a miscarriage of justice has occurred as a result of an error by theJudge applying s 107 of the Sentencing Act. As this is the pre-requisite to consideringthe Judge's decision pursuant to s 106 of the Act, the appellant's appeal necessarilyfails.Result[64] Mr Singh's appeal against conviction and sentence is dismissed._______________Davison J