Mohammed Atigul Islam v The Queen

• Jurisdiction: New Zealand
• Judge: Moore J
• Judgment Date: 04 May 2020
• Neutral Citation: [2020] NZCA 140
• Court: Court of Appeal
• Docket Number: CA227/2019
• Date: 04 May 2020

Between

Mohammed Atigul Islam

Appellant

and

The Queen

Respondent

[2020] NZCA 140

Court:

Miller, Dobson and Moore JJ

CA227/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Sentence, Immigration — appeal against a sentence of four years and five months imprisonment for offences under the Immigration Act 2009 — exploitation of foreign temporary workers — providing false or misleading information to an immigration officer — whether the uplift for the associated offending was manifestly unjust

Counsel:

P F Wicks QC for Appellant

B D Tantrum for Respondent

Appeal against sentence dismissed.

JUDGMENT OF THE COURT

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 Islam and his wife guilty of 20 charges laid under the Immigration Act 2009 (“the Act”) and the Crimes Act 1961.

2 On 10 May 2019 the trial judge, Judge B A Gibson, sentenced Mr Islam to four years and five months' imprisonment. 1 He appeals his sentence on the ground that it is manifestly excessive.

The charges

3 The 20 charges may be divided into four tranches:

• (a) 10 charges of exploitation of temporary workers (“exploitation charges”); 2

• (b) two charges of aiding and abetting a person to breach a condition of their visa (“aiding and abetting charges”); 3

• (c) five charges of providing false or misleading information to an immigration officer (“false and misleading information charges”); 4 and

• (d) three charges of attempting to pervert the course of justice (“perverting charges”). 5

4 Each of the charges laid under the Act carries a maximum penalty of seven years' imprisonment and/or a fine not exceeding $100,000. The charges of attempting to 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.

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 involved Mr Islam and Ms Ahmed advertising in local Bangladeshi newspapers. Interested candidates were identified following which Mr Islam and Ms Ahmed flew to Bangladesh to interview them.

8 Two potential chefs were offered and accepted employment. These were Mr Sikander and Mr Sarder. Neither could read nor speak English. Mr Islam and Ms Ahmed assisted them in obtaining visas and facilitated the travel of both men to New Zealand. Once here, they provided accommodation.

Exploitation charges

9 Prior to the chefs arriving in New Zealand, Mr Islam and Ms Ahmed completed and submitted to Immigration New Zealand (“INZ”) work visa applications, and supporting documents for both men. The applications recorded that the chefs would be employed for 40 hours per week, Monday to Sunday. They would be paid $17 per hour. INZ approved the work visa applications and visas were issued.

10 However, the chefs' conditions of employment were starkly different from what 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 those they had been told. Over the two year period represented by the charges their effective net hourly rate, as later calculated by INZ, was $7.97 and $7.08 respectively. Although the two chefs were the primary employees, three others were recruited from the local Bangladeshi 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 and sustained failure to pay the statutory minimum wage under the Minimum Wage Act 1983. In respect of three of the employees, including the chefs, he was also responsible for failures under the Holidays Act 2003 to pay entitlements such as annual leave and for work on statutory and alternative holidays.

12 The Ministry of Business, Innovation and Employment has calculated the total unpaid wages and entitlements for the five employees. This totals $260,089.58, a figure described by the Crown as very conservative. The total in respect of Mr 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 were too exhausted to work, he would tell them if they did not work the hours required the shop would close and they would have to return to Bangladesh. On occasions, after finishing a long shift, they would be called back to the shop for further work. Sometimes, particularly during festivals, they worked especially long hours including up to 36 hours in a single shift.

14 Immediately on their arrival in New Zealand Mr Islam took possession of the men's passports. Despite requests for their return he withheld them for virtually the whole period of their employment. When the men required their passports for particular reasons Mr Islam would either provide them with a photocopy or would accompany them to their appointment, present the passports as necessary, and retain them afterwards.

15 The passports were not returned to either man until after the intervention of the Police. When questioned by the police Mr Islam advised that the passports were being held by his lawyer. Two of the 10 charges of exploitation (“the passport charges”) cover this conduct. 6 At trial, Mr Islam's lawyer gave evidence that he received 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 sign purporting to evince a request that he hold the passports on their account. Given that neither man was competent in reading or writing English it is very probable they did not 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 on student visas. A condition of the visas was that they were not permitted to work for

more than 20 hours per week. Despite this, and aware of this limitation, Mr Islam had them working well in excess of the maximum limit

False or misleading information charges

17 The false or misleading information charges relate to various documents which Mr Islam submitted to INZ. These included false statements as to the rates which workers would be paid. They also included false representations to INZ that the chefs were being paid at a higher rate than Mr Islam, himself. Other false statements included earning summaries for Inland Revenue with visa applications for the chefs showing them to be earning considerably more than they were. This included a letter from one of the chefs to the effect that he had been paid over $3,000 a month when this was plainly false. As before, the letter had been written by Mr Islam but signed by the chef.

The perverting charges

18 The perverting charges arise from Mr Islam's conduct after INZ commenced its inquiry. Aware of the investigation he created a number of false documents in an attempt to retrospectively characterise the employment relationships more favourably. He backdated employment agreements. He wrongly stated that some employees were being paid the minimum wage. In respect of one employee, who was not paid at all for their work, Mr Islam retrospectively created a “volunteer agreement” with a cover letter 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 no mitigating factors in relation to the offending there were many factors of aggravation. These included the deliberate, sustained, and calculated practice of Mr Islam underpaying his workers. The Judge pointed to the duration of the offending, being just over two years. He noted the vulnerability of the victims; all drawn from the Indian subcontinent and dependent on wages at higher rates than Mr Islam paid them. In respect of the chefs, the Judge noted that they were specifically recruited from jobs they held in Bangladesh. He noted that Mr Islam had taken their passports and worked them extremely hard such that they had limited opportunity to find alternative employment.

20 The Judge also determined that the offending was driven by a commercial imperative for personal gain, adding that not only were the workers hurt by this conduct but that revenue was lost to the Crown in the form of taxation which would normally have been paid.

21 He then referred to Balajadia v R where this Court, in broadly comparable circumstances, upheld a starting point of 30 months but noted that given the statutory maximum, a starting point of 40 months might easily have been set. 7 The Judge referred to other cases involving worker exploitation and charges brought under the same provisions of the Act. 8

22 The Judge settled on a starting point of three years and four months' (or 40 months') imprisonment for the exploitation charges. 9 It would appear that the aiding and abetting charges were also included in setting the starting point. 10 He then uplifted this by two years on account of the two passport charges, the five false and misleading information charges and the three perverting charges. 11 This led to an initial starting point of five years and four months. This he reduced to five years for totality.

23 For personal factors, the Judge gave a 10 per cent discount for previous good character, an allowance he described as generous. 12 This led to a final sentence of four years and five months' imprisonment.

Submissions

Appellant

24 In his oral...