[1] Feisal and Aisha Osman (husband and wife) appeal against sentences of 14 and 12 months’ imprisonment respectively, imposed by Judge Harrop in the Wellington District Court on 26 January 2010. Each had pleaded guilty to three counts of producing and supplying immigration documents, either knowing them to have been obtained fraudulently, or knowing them to be false in a material respect, in breach of s 142 of the Immigration Act 1987.
[2] The appeals are that, first the terms of imprisonment were excessive, and, secondly, a sentence of home detention should have been imposed.
[3] On 14 May 2010 we gave a short result judgment (as indicated in the judgment box above). We said we would give our reasons later. These are those reasons.
Imprisonment
[4] Putting the question of home detention to one side, there is no merit in the argument that the sentences of imprisonment were manifestly excessive.
[5] Mr and Mrs Osman are brother-in-law and sister-in-law respectively. Mrs Farduce Mohammed was in New Zealand with her husband, Mr Jamah. They had applied for residence on the basis of refugee status. The effect of that generally is that once it is granted the appellants can include their family members who are not in New Zealand in that application, so the whole family is eligible for New Zealand residence. Mrs Osman filed false documents purporting to be Mrs Mohammed’s adopted daughter.
[6] There were other persons involved in a concerted effort to bring relatives of Mrs Farduce Mohammed and her husband, Mr Jamah, to New Zealand. Mr Jamah and his wife, Mrs Mohammed, were sentenced by Judge Tompkins on 26 March 2008. Treating Mrs Mohammed as the lead offender Judge Tompkins took a starting point of 24 months and deducted ten months to take into account various mitigating factors, leading to a concurrent term of 14 months. Home detention was refused to Mrs Mohammed:
Given the seriousness of her offending, the deliberateness with which it occurred, and the length of time over which it expanded together with the fact that three other persons were, by her actions, unlawfully brought into New Zealand … .
[7] In respect of Mr Jamah Judge Tompkins…
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.
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AGLC
Osman v R [2010] NZCA 199
Case
[2010] NZCA 199
Decision Date
CaseChat Overview and Summary
In the Court of Appeal of New Zealand, Feisal and Aisha Sheikh Osman, husband and wife, appealed against their sentences of 14 and 12 months' imprisonment respectively, imposed by Judge Harrop in the Wellington District Court. Each had pleaded guilty to three counts of producing and supplying immigration documents, knowing them to be false, in breach of the Immigration Act 1987. The appellants argued that the terms of imprisonment were excessive and that they should have been granted home detention instead. The central legal issues were whether the terms of imprisonment were manifestly excessive and whether home detention should have been imposed.
The Court of Appeal found that the starting points selected by Judge Harrop were unassailable on appeal. However, it concluded that Judge Harrop erred in law by not adopting a case-specific two-stage evaluation of the merits of home detention, as provided for in the Sentencing Act 2002. The Court considered that the appellants were good candidates for home detention, and that it was a more severe sentence than community detention. The Court allowed the appeal, set aside the sentences of imprisonment, and substituted sentences of three months' home detention for Feisal and two months' home detention for Aisha. The home detention was to commence from the date of their release from prison.