Osman v The King - [2023] NZHC 3559

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-230

[2023] NZHC 3559

BETWEEN
OSMAN OSMAN

Appellant

AND

THE KING

Respondent

Hearing:
9 October 2023 and further memorandum received 27 October

2023

Appearances:

J L Holden for the Appellant H G Clark for the Respondent

Judgment:

8 December 2023

JUDGMENT OF GAULT J

This judgment was delivered by me on 8 December 2023 at 11:00 am.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Ms J L Holden, Barrister, Auckland
Ms H G Clark, Crown Law, Wellington

OSMAN v R [2023] NZHC 3559 [8 December 2023]

[1] Mr Osman appeals, significantly out of time, against the decision of Judge B A Gibson in the Auckland District Court dated 24 July 2020,1 declining Mr Osman’s application for a discharge without conviction after pleading guilty to charges of behaving threateningly and committing wilful damage. Mr Osman was sentenced to six months’ supervision on the wilful damage charge and convicted and discharged on the charge of behaving threateningly.

[2] The crux of Mr Osman’s appeal is that the Judge was not provided with sufficient information by his previous counsel about his engagement with counselling nor with information relevant under s 27 of the Sentencing Act 2002, and that the Judge erred in assessing the gravity of Mr Osman’s offending as being “reasonably high”. Mr Osman seeks leave to adduce his own affidavit and a s 27 cultural report provided by Mr Yor.

[3] On appeal, Mr Osman also sought permanent name suppression out of concerns that he and his family may be endangered, but this was abandoned after the hearing by memorandum dated 26 October 2023.

[4] The Crown opposes an extension of time and leave to adduce further evidence. The Crown also seeks to adduce an affidavit from Mr Osman’s previous counsel.

The offending

[5] Mr Osman’s charges concern two unrelated incidents. The first was on 2 January 2019, when Mr Osman was at his home in Mount Roskill. At about 6:45 pm, the complainants, Mr H and Mr D, arrived at Mr Osman’s address in Mr D’s vehicle. Mr H got out of the vehicle and approached Mr Osman’s house. A heated argument ensued between the two. Mr H walked away and got into the back seat of Mr D’s vehicle. Mr Osman yelled out to them to wait and ran back inside his house. Mr H and Mr D drove to the end of the street, turned around and drove back past Mr Osman’s house. Mr Osman came running out of his house holding a large kitchen knife in his right hand. He ran to the vehicle and swung the knife towards the open back seat window where Mr H was sitting. The knife struck the vehicle between the front and

1 Police v Osman [2020] NZDC 14305.

rear doors causing minor damage to the panel. Mr H and Mr D quickly left the street, fearing for their safety.

[6] The second incident…

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 Osman v The King

Details

AGLC: Osman v The King [2023] NZHC 3559
Case: [2023] NZHC 3559
Decision Date: 8 December 2023

CaseChat Overview and Summary

Mr Osman appeals against the decision of Judge B A Gibson in the Auckland District Court declining his application for a discharge without conviction after pleading guilty to charges of behaving threateningly and committing wilful damage. The crux of Mr Osman's appeal is that the District Court Judge was not provided with sufficient information about his engagement with counselling and that the Judge erred in assessing the gravity of Mr Osman’s offending as being “reasonably high”. Mr Osman seeks leave to adduce his own affidavit and a cultural report provided by Mr Yor. The Crown opposes an extension of time and leave to adduce further evidence and seeks to adduce an affidavit from Mr Osman’s previous counsel.

The appeal is brought two years and nine months out of time. The appeal was argued at the hearing, so the Court considered whether to grant an extension of time and whether to allow the appeal. The Court declined to extend time on the basis that the explanation as to why the proposed appeal was filed so late was underwhelming and the merits of the appeal were relevant to granting an extension.

The Court considered whether to admit the further evidence on appeal. The general approach is that it must be fresh, credible, and cogent. However, it may be in the interests of justice to adduce evidence that is credible and cogent even if not fresh. The Court admitted Mr Osman's affidavit and the cultural report.

The Court concluded that the Judge had adequate information about Mr Osman’s RASNZ counselling and did not err in categorising the gravity of the offending as “reasonably high”. The Court found that the consequences of conviction were not out of all proportion to the gravity of the offending.

The Court declined the application for extension of time and dismissed the appeal.

The final orders are that the application for extension of time is declined and the appeal is dismissed.

Orders