Ismail v R - [2011] NZCA 444

IN THE COURT OF APPEAL OF NEW ZEALAND

CA253/2011
[2011] NZCA 444

BETWEEN SAHRA ISMAIL
Appellant

AND THE QUEEN
Respondent

CA266/2011

AND BETWEEN ALI ABDI
Appellant

AND THE QUEEN
Respondent

Hearing: 23 August 2011

Court: O'Regan P, Ronald Young and Venning JJ

Counsel: M B Meyrick for Appellant Ismail
W N Dollimore for Appellant Abdi
F Sinclair for Respondent

Judgment: 7 September 2011 at 11.30 am

JUDGMENT OF THE COURT

AMs Ismail’s appeal against sentence is dismissed.
BMr Abdi’s appeal against sentence is allowed. The sentence imposed in the District Court is quashed and replaced by a sentence of two years and six months imprisonment on all counts, such terms to be served concurrently.

_______________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

Mr Abdi and Ms Ismail faced trial with two others on numerous counts of immigration fraud,[1] using a document with intent to defraud,[2] using forged documents[3] and conspiring to commit an offence.[4] They entered guilty pleas to multiple counts on the fifth day of their jury trial. Mr Abdi was convicted on 17 counts and Ms Ismail was convicted on 15 counts. Mr Abdi was sentenced to imprisonment for two years and seven months and Ms Ismail was sentenced to imprisonment for two years and nine months.[5] They appeal against those sentences.

Immigration fraud

[1]Immigration Act 1987, s 142(1)(c), now repealed and replaced with the Immigration Act 2010, ss 342 and 345.

[2] Crimes Act 1961, s 229A(b), now repealed.

[3] Crimes Act 1961, s 257(1)(b).

[4] Crimes Act 1961, s 310.

[5] R v Abdi DC Hamilton CRI-2010-019-299, 21 April 2011.

Both Mr Abdi and Ms Ismail were refugees from Somalia. They went to the Netherlands and had been granted Dutch citizenship. They lived in the Netherlands for 12 years.
The Netherlands does not allow refugees to bring other family members to the Netherlands as secondary migrants. New Zealand does allow this. Mr Abdi and Ms Ismail saw that as an opportunity to facilitate the resettlement of relatives living in refugee camps in Egypt and Yemen.
In order to carry out that plan, they came to New Zealand and were granted visitor’s permits. They then claimed refugee status. Ms Ismail successfully applied for New Zealand residence but Mr Abdi’s application was declined.
On the basis of her residence permit, Ms Ismail was able to bring seven relatives to New Zealand, and they too were granted residence permits. Mr Abdi sought to do the same in relation to 11 people, but was not successful in that regard. He did, however, assist with the illegal entry into New Zealand to one of his co-accused, Mr Ali.
In the course of carrying out this plan, the appellants created, submitted and used false documentation to mislead the New Zealand immigration authorities. The object of the scheme was to ensure that the appellants could live in the same country as those whose entry to New Zealand they had facilitated. The appellants’ claims for refugee status in New Zealand were false,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ismail v R

Details

AGLC: Ismail v R [2011] NZCA 444
Case: [2011] NZCA 444
Decision Date: 7 September 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Sahra Ismail and Ali Abdi appealed their sentences imposed by the District Court. Ismail was convicted on 15 counts and Abdi on 17 counts of various immigration-related offences. Both were refugees from Somalia who had gained Dutch citizenship and subsequently facilitated the illegal entry of relatives into New Zealand using false documents. The Court of Appeal considered whether the District Court's starting points and sentences were appropriate. Ismail argued that her sentence was too severe compared to similar cases, but the Court found the District Court's starting point and final sentence to be justified given the premeditation and seriousness of her offending. Abdi also argued that his sentence was too severe, but the Court agreed with him only on the extent of the discount for his late guilty plea. The Court of Appeal allowed Abdi's appeal to the extent of correcting the discount for his plea, but dismissed Ismail's appeal. Abdi's sentence was reduced to two years and six months, to be served concurrently, while Ismail's sentence was upheld.

Orders