Osman v The King
[2023] NZHC 3559
•8 December 2023
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 was on 11 October 2019 while Mr Osman was on bail in relation to the first incident. At about 10:45am, Mr Osman was at the Palmerston North Hospital Acute Inpatient Mental Health Unit. He had admitted himself the day before. Evaluations and assessments were conducted by staff at the hospital during which Mr Osman told the doctors that he had a gun and he wanted to kill four people. Police were called and Mr Osman was apprehended prior to being discharged from hospital. When spoken to by Police, Mr Osman named Mr H and Mr D as the people he would like to kill by gunning them down with a firearm. He did not provide an explanation but stated he had been advised by his lawyer that he was going to jail for three years, so he would kill them anyway.
District Court decision dated 24 July 2020
[7] The Judge’s ruling on the s 106 discharge without conviction application referred to Mr Osman’s guilty pleas on the two charges and the facts of his offending, noting that the first incident involved a person Mr Osman had a disagreement with over issues affecting the Sudanese Muslim community and that Mr Osman understood those in the car to subscribe to a form of Islam he found objectionable.
[8] The Judge accepted there were mental health issues and a difficulty with the “rigidity” of Mr Osman’s thinking. The Judge said he had hoped that Mr Osman had been admitted to a satisfactory counselling programme but noted that Mr Osman had not done this. Instead, Mr Osman had spoken to a clinical psychologist with the New Zealand Red Cross. The Judge accepted this was helpful but said that Mr Osman was told that in the event of a s 106 discharge he needed to attend that programme.
[9] The Judge said the Crown remained opposed to the s 106 application. The Judge said the incident with the knife was particularly serious and so the application was declined. The Judge considered the gravity of the offending was towards the high end of the wilful damage charge. The Judge acknowledged that Mr Osman had no relevant previous convictions and had done well educationally since he came to New Zealand, which weighed in the balance, but was concerned that
Mr Osman had failed to do what he was directed to do. Given his personality – the psychiatrist noted that he had limited emotional expression and slow cognitive processing – the Judge was concerned as to what might happen in the future without considerable support which may be provided by the Probation Service under a sentence of supervision. For those reasons, the Judge considered the gravity of the offending to be reasonably high.
[10] In terms of the direct and indirect consequences of Mr Osman’s conviction, the Judge referred to Mr Osman’s stated difficulty in obtaining employment with convictions of this type. He said nothing directly was at risk but acknowledged that there may be some indirect consequences as some employers tend to want lists of previous convictions. The Judge also referred to the effect conviction might have on Mr Osman’s immigration status.
[11] The Judge referred to Zhang v Ministry of Economic Development where Asher J noted that where a separate Tribunal is involved it is appropriate that Courts not pre-empt the decisions of that Tribunal by granting s 106 discharges, although in a finally balanced case a discharge may be warranted.2 The Judge said that decision was approved by the Court of Appeal in Ho v R,3 but also acknowledged there were other decisions which indicated that the Court still retains a discretion to grant a discharge without conviction even in a matter where the offending is governed by a particular Tribunal.
[12] The Judge considered he had jurisdiction to discharge notwithstanding the role of the Immigration Tribunal but said that, under the Immigration Act 2009, a (discharge without) conviction would not necessarily save Mr Osman from the Immigration Department examining his character as it would focus on conduct rather than convictions. Given the relatively minor nature of the charges, the Judge said he would be surprised if those were matters that affected Mr Osman’s status in New Zealand. He said there did not seem to be any issue of deportation, simply that it may delay Mr Osman’s citizenship application.
2 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011.
3 Ho v R [2016] NZCA 229.
[13] Overall, the Judge said he thought it would be more useful if Mr Osman was sentenced to six months’ supervision. He sentenced Mr Osman to that on the charge of wilful damage and on the threatening language charge, which was fineable only, Mr Osman was convicted and discharged.
Extension of time
[14] The appeal is brought two years and nine months out of time. Accordingly, Mr Osman applies, pursuant to ss 231 and 248 of the Criminal Procedure Act 2011, for an extension of time to appeal.
[15] When leave is required for an extension of time, the question is whether it is in the interests of justice to grant the extension, taking into account all relevant circumstances such as the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of the remedy sought, the extent of the impact on others and the administration of justice and any prejudice to the Crown.4 Two questions arise: first, why the proposed appeal was filed so late and, secondly, whether it has merit.5 Often the second question will be determinative of the interests of justice and, therefore, the application for leave.6
[16] In his notice of appeal and affidavit which he seeks leave to adduce, Mr Osman explains that he was represented by the Public Defence Service at sentencing. On conviction in July 2020, Mr Osman sought advice regarding an appeal and was referred by his previous counsel to a lawyer, who Mr Osman did not find to be helpful. Mr Osman explains that he tried to engage other lawyers during this time but found the process overwhelming given it was during COVID-19 lockdowns. In late 2020/early 2021, Mr Osman’s partner became pregnant with their son. He explains that given they had no support, Mr Osman focused on raising his son and that it was only after his son turned one that he tried to look for another lawyer, without success. Mr Osman says that he spoke with his present counsel, Ms Holden, in January 2023
4 R v Lee [2006] 3 NZLR 42 at [99]. While dealing with leave to appeal out of time under the then 388(1) of the Crimes Act 1961, the Court of Appeal confirmed these principles were still relevant under the Criminal Procedure Act 2011 in CG v R [2022] NZCA 389 at [6].
5 Smith v R [2020] NZCA 221 at [3].
6 At [3].
and that legal aid was granted in February 2023 following administrative delays. A copy of Mr Osman’s file was then received on 3 April 2023 from the Public Defence Service, and it was only then that the grounds for an appeal were confirmed.
[17] The Crown opposes an extension of time. Ms Clark, for the Crown, submitted that Mr Osman’s explanation for his delay in bringing the appeal did not explain a delay of this length. She also highlighted that Mr Osman’s liberty was not at stake, noting that he was sentenced to and has completed supervision. Ms Clark submitted that finality is important; the Court’s finite resources should be limited to those who comply with time limits to appeal. Furthermore, Ms Clark submitted that the information Mr Osman seeks to put before the Court in the cultural report is essentially that which the Judge had at sentencing nearly three years ago, which further weighed against leave to appeal.
[18] The explanation as to why the proposed appeal was filed so late is underwhelming. Covid-19 lockdowns, difficulty finding a lawyer and raising a child do not explain a delay of this length. Also, Mr Osman’s liberty is not at stake. Indeed, he had served his sentence of six months’ supervision by January 2021. Finality weighs against an extension. However, the merits of the appeal are relevant to granting an extension and the appeal was argued at the hearing. Therefore, I will address the merits of the proposed appeal, starting with the transcripts of the pre-sentencing hearings which are available and the further material sought to be introduced, before determining whether to grant an extension of time and whether to allow the appeal.
[19] A transcript of the In-Chambers discussion on 24 July 2020 prior to the Judge’s ruling on Mr Osman’s application for a discharge without conviction has been provided. After referring to an earlier adjournment on 20 March 2020, the relevant part of the transcript states:
THE COURT:
Yes, I’ve got it here but where’s the evidence he’s been to the programme?
[COUNSEL FOR MR OSMAN]:
– Sir, I’ve got some paperwork here. He hasn’t been to a programme per se. He has, however, engaged in some refugee counselling.
THE COURT:
No, he was told to go to a programme. So, he didn’t do what I told him to do.
[COUNSEL FOR MR OSMAN]:
Well Sir, it’s my submission, referring to page 32 of the psychological report, that the psychologist’s view is that: “Should re-offending occur, it is likely to be in the context of significant stress related, due to the political climate in Sudan or when experienced perceived threat by those he believes to be involved with extremist Islamic groups,” and that’s what Mr Osman’s view was of the offending in the present case. It’s my submission that his engagement with this counselling service is probably the most appropriate course for him and he has tried to access that. Your Honour, in the letter dated 26 June from the Red Cross, there’s reference made in the third paragraph of telephone contact between the writer and Mr Osman. So he has tried to engage in some sort of service, Sir.
THE COURT:
No, he was told exactly what he had to do.
[COUNSEL FOR MR OSMAN]:
Yes Sir and I appreciate that.
THE COURT:
All right.
[COUNSEL FOR MR OSMAN]:
If the Court isn’t minded to grant the discharge Sir, then I would suggest that a sentence of supervision is appropriate.
THE COURT:
Yes.
[20] The programme the Judge had in mind was a counselling programme for Mr Osman to learn not to have recourse to violence. The relevant part of the transcript of the earlier hearing on 20 March 2020 indicates the Judge was concerned there was evidence of Mr Osman’s “very fixed thinking”. After counsel took instructions about an adjournment, that transcript states:
THE COURT
You know the sort of programme I want him to do, some sort of counselling, so he can sort things out without having to have recourse to violence.
COUNSEL
Thank you, Sir.
THE COURT
So, if he comes back and shows me that he’s done a course like that and successfully completed it, I’ll discharge without conviction because we’re left with three minor charges and I accept that he might have problems with migration, immigration and also employment…
[21] It is apparent from these transcripts that the Judge’s discharge decision largely turned on whether Mr Osman had engaged in counselling to address violence.
Leave to adduce further evidence on appeal
The further evidence on appeal
[22] As indicated, Mr Osman seeks leave to adduce his own affidavit which provides information about his counselling from Refugees As Survivors (RASNZ) and the cultural report prepared by Mr Yor. The Crown opposes its admission.
[23] In his affidavit, Mr Osman explains that he was born in Sudan in 1984 and came to New Zealand in 2004 to join his mother who had come to New Zealand in the 1990s. Mr Osman now lives with his partner and young child. Mr Osman explains that prior to determination of his discharge without conviction application, the District Court directed him to complete counselling similar to, or provided by, Manline, a male counselling service specialising in anger and violence management. Mr Osman says that he felt that engaging with RASNZ was a better option given he considered the support he needed was more specific and connected to the trauma and past experiences he faced in Sudan. He says that the RASNZ counsellor he met with had experience both with his community and with anger-management, and that his counsel at the time did not explain to the Judge why he had referred himself to RASNZ, or why he sought more time to complete counselling. At the time, Mr Osman had only had an assessment and completed one session with RASNZ.
[24] Mr Osman says that following sentencing, he completed his sentence of supervision without issue and also completed ten sessions with RASNZ covering topics such as living violence-free and taking time to find safety. Since then,
Mr Osman has completed postgraduate qualifications in social and community leadership, and in human rights from the University of Auckland and Auckland University of Technology (AUT) and has just received approval to complete a thesis as part of a Master of Philosophy at AUT.
[25] In relation to the offending, Mr Osman says he knows what he did was wrong, which he says is evident in his guilty plea, that he felt unsafe because of Mr H, and that he wanted to distance himself from the complainants’ understanding of Islam as he regarded it as distorted. As for the consequences of his convictions, Mr Osman says that he felt helpless when the Judge dismissed RASNZ as a suitable provider for counselling services, and that he has applied for many jobs without success either directly because of his criminal record, or indirectly because of the effect this has had on his immigration status. Mr Osman explains that he has also had difficulties obtaining tenancies and has experienced a delay in his ability to apply for citizenship.
[26] Mr Yor’s cultural report explains that Mr Osman hails from the Beja tribe of Eastern Sudan and that he experienced a “distracting childhood attached to historical trauma and torture” due to the civil war and conflict in Sudan. The report explains that Mr Osman’s background was characterised by the difficulties of not having his mother in Sudan, of enduring his mother’s psychiatric episodes before losing her in 2006 and then living with his stepfather, who was physically violent to his children with Mr Osman’s mother. It also says that Mr Osman now faces historical trauma and survivor guilt as a direct result of historical trauma and torture, albeit without particulars. Mr Yor contends that Mr Osman’s cultural displacement, ongoing trauma and survivor guilt explain much of his offending.
[27] The Crown seeks to adduce an affidavit from Mr Osman’s counsel at sentencing, Mr Taumihau. He says that Mr Osman pleaded guilty on 15 November 2019. Counsel signalled a discharge without conviction application and sought a Departmental psychological report under s 26. Sentencing was set for 9 March 2020. It was adjourned until 20 March 2020 as the psychological report was not available. On 20 March 2020 the Judge indicated he wanted Mr Osman to complete a course to address the violence aspect of his offending and if he completed such a course the Judge would grant the discharge without conviction, as indicated in the transcript. The
sentencing was adjourned. Prior to the next hearing, Mr Osman’s counsel indicated to him that any stopping violence provider would do. The matter was called again on 19 May 2020 and the Judge granted a final adjournment for Mr Osman to complete a stopping violence programme. The matter was adjourned to 24 July 2020.
[28] On 8 June 2020, Mr Osman emailed his counsel about psychological help from the Refugee Trauma recovery centre. His counsel replied noting that the Judge wanted him to do a stopping violence course and offered to send his psychologist’s report through if it would help. Mr Osman replied explaining that he did not feel that a “mainstream” living without violence provider would understand his particular type of anger or violence and that he believed it would be best for him to receive counselling from this psychologist. His counsel advised that this course would do if it was the only one Mr Osman could begin before his next court date. Mr Osman was content with this advice and asked his counsel to send the psychologist’s report through, which he did. The psychologist suggested a referral to RASNZ and Mr Osman went onto the RASNZ waiting list.
[29] Mr Osman’s counsel’s submissions on 24 July 2020 are recorded in the transcript referred to above. He accepts that he did not provide advice to Mr Osman about a cultural report, but says that his view was that much of Mr Osman’s relevant background would have been contained in the psychologist’s report and that the report adequately addressed the causative links of Mr Osman’s background to the offending.
Should the evidence be admitted?
[30] The general approach to admitting further evidence on appeal is that it must be fresh, credible and cogent.7 However, as the Court of Appeal explained in Mark v R,8 it may be in the interests of justice to adduce evidence that is credible and cogent even if not fresh:
If the evidence is credible but not fresh, the appellate court should assess its strength and its potential impact on the sentence. If the appellate court considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.
7 Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].
8 Mark v R [2019] NZCA 121 at [16].
[31] Ms Holden submitted that the evidence was credible as Mr Osman’s affidavit contains a letter from RASNZ confirming how many counselling sessions he received, and the cultural report relevantly explained Mr Osman’s background. She further submitted that the evidence was fresh, although she accepted that the cultural report could have been obtained at sentencing by Mr Osman’s previous counsel. In particular, she submitted that the evidence contained in Mr Osman’s affidavit regarding his engagement with counselling and the cultural report were fresh from the perspective of assessing the gravity of Mr Osman’s offending. She submitted that it was in the interests of justice to admit the evidence given the assistance she said this evidence would provide to the Court in relation to the merit of the appeal.
[32] Ms Holden also submitted that the affidavit should be admitted because it showed that Mr Osman completed counselling with an appropriate service, contrary to what the Judge found in his decision. She submitted that the cultural report should also be admitted given it addressed matters which were raised in the psychological report before the Judge and provided further context that could have been taken into account when considering the gravity of the offending.
[33] Ms Clark submitted that the further evidence was neither fresh nor cogent. She submitted that the effects of a conviction which Mr Osman referred to were anticipated by the Judge at sentencing, and that the material information in Mr Osman’s cultural report was also before the Judge in the form of the psychologist’s report by Ms Ratlidge, a registered clinical psychologist. Mr Osman also prepared an affidavit for sentencing which described his upbringing, refugee background and the context of the offending.
[34] The psychologist’s report was based on four interviews totalling six-and-a-half hours. Much of the information was self-reported. The most relevant aspects of the report were that:
(a)Mr Osman displayed no remorse or regret for his offending because he wanted to show that the complainants couldn’t threaten him;
(b)He had previously been assessed as having slow cognitive processing and reported ongoing nightmares related to his past which impacted on sleep;
(c)He had one previous driving without a licence conviction and reported engaging in violence in Sudan related to political protests. He also reported being arrested for threatening a family member. Ms Ratlidge considered that the 2019 offending represented an escalation in violence, and that the use of a weapon was also a marker for an increased risk.
(d)Mr Osman had limited contact with his father growing up and reported that his mother was involved with activist groups. He also described being exposed to violence within the family home and the wider community.
(e)From the age of 12, Mr Osman began spending increasing time on the streets selling drugs in Sudan and came and went from the family home in an effort to escape his home life and to try and develop his own identity. During this time, he reported that different Islamic groups tried to influence him and that he subsequently became involved in activist groups involved in political protests and activism against the government.
(f)Since immigrating to New Zealand, Mr Osman studied philosophy at the University of Canterbury and has had a varied employment history, including various labouring positions, and on his own businesses in the areas of artificial intelligence and broadcasting. Ms Ratlidge highlighted that neither of those business pursuits were confirmed with any collateral information. Mr Osman also had ongoing involvement online with the resistance movement in Sudan. In the period prior to his offending, Mr Osman had experienced nightmares with themes of torture and violence, and had reported receiving regular threats from
Islamist extremist groups due to his involvement with resistance groups.
(g)Mr Osman accepted the summaries of facts for his offending but noted that they did not take account of the fact that he knew the complainants as they went to the same mosque, and he had loaned them some money. He said it was when he asked for the money back that they began threatening him and that is when the argument ensued. In the lead up to the second incident of offending, Mr Osman reported that he continued to receive threats relating to his involvement with political activism in Sudan and contact from the complainants of his earlier offending, and that he experienced increasingly distressing nightmares relating to his time in Sudan.
(h)Mr Osman reported regular alcohol and cannabis consumption to aid sleep and manage his nightmares, and that he no longer felt comfortable seeking medical help for fear of being reported to Police.
(i)Ms Ratlidge reported that Mr Osman exhibited signs typical of individuals who are distrustful of others, who experience rigid beliefs that are not easily influenced and who may readily interpret information as threatening. She explained that these conclusions had to be considered in light of Mr Osman’s refugee background and ongoing involvement in political activism. She also explained that Mr Osman’s profile scores indicated that he suffered from clinically significant levels of anxiety and post-traumatic stress, and she concluded that he had a low to moderate risk of further violence offending, most likely to be in the context of significant stress related to the political climate in Sudan or when perceived threats are made by those he believes are involved with extremist Islamist groups.
[35] Mr Osman’s affidavit is relevant insofar as it addresses his engagement with counselling. However, it is apparent that his engagement with RASNZ began only just before sentencing. In relation to that, the affidavit contains nothing that could not
have been provided earlier and little that addresses the Judge’s concern that Mr Osman had not completed a programme. Also, while Mr Osman says that he engaged in sessions about being violence-free, the letter from RASNZ does not provide information as to the nature of the RASNZ counselling sessions (attended after sentencing) to indicate whether the programme was appropriate to address Mr Osman’s issue with violence. It would likely have taken more specific information from RASNZ about the nature of the programme to influence the Judge who was evidently concerned that Mr Osman did not accept that he needed to attend a stop violence programme. Nevertheless, given its relevance I admit this further evidence.
[36] The cultural report could also have been provided earlier although Mr Osman’s counsel did not consider one necessary. As to whether it contains new cogent material beyond that available to the Judge in the psychologist’s report (which had more of a clinical perspective) and Mr Osman’s own affidavit, the cultural report contains some more detail about Mr Osman’s background and Sudan in general but it largely addresses what was contained in the psychologist’s report, especially with respect to how Mr Osman’s upbringing and refugee experience have impacted his life and fed into his offending. As Ms Clark submitted, background information does not need to come before the Court via a s 27 report writer, and where information in a cultural report was already materially before the Judge, the Court is entitled not to grant leave to admit it.9 Nevertheless, having read it with its somewhat greater detail, I admit the cultural report.
Approach on appeal
[37] An appeal against a refusal or failure to grant a discharge without conviction can be an appeal against both conviction and sentence.10
[38] A conviction appeal must be allowed if a miscarriage of justice has occurred for any reason.11 A miscarriage of justice means any error, irregularity, or occurrence in, or in relation to, or affecting the trial that has created a real risk that the outcome
9 Dempsey v R [2023] NZCA 461 at [17]–[19].
10 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]–[8] and [16].
11 Criminal Procedure Act 2011, s 232(2)(c).
of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.12 A guilty plea is included within the meaning of ‘trial’ for this purpose. But it is only in exceptional circumstances that an appeal against conviction will be entertained following the entry of a guilty plea. A miscarriage may occur by virtue of a material error by the sentencing Judge in entering a conviction or if the Judge erred in applying the principles in relation to discharging an offender without conviction under s 107 of the Act.
Principles on discharge without conviction
[39]Section 11(1)(a) of the Sentencing Act provides:
If a person who is charged with an offence is found guilty, or pleads guilty, before entering a conviction and imposing a sentence the court must consider whether the offender would be more appropriately dealt with by—
(a)discharging the offender without conviction under section 106; …
[40] Under s 106, the Court has a discretion to discharge without conviction a person who has pleaded guilty to an offence.13 Under s 107, this discretion cannot be exercised unless the Court is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. This requires the Court to undertake the following three-step analysis:14
(a)consider the gravity of the offence, taking into account the aggravating and mitigating factors of the offending and offender;
(b)consider the direct and indirect consequences of a conviction; and
(c)consider whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
12 Section 232(4).
13 Unless an enactment provides otherwise, which does not apply here.
14 Z (CA447/2012) v The Queen [2012] NZCA 599, [2013] NZAR 142 at [8] and [27], applied in
Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [15].
[41] The proportionality test under s 107 is a question of fact requiring judicial assessment. If the appellant can show that the first instance decision was wrong, the evaluation of the s 107 factors is considered afresh.15
[42] If s 107 is satisfied, the Court must still decide whether to exercise its discretion under s 106; however, it will be a rare case where the Court will refuse to do so.16
Discussion
Did the Judge have adequate information about Mr Osman’s RASNZ counselling?
[43] Ms Holden submitted that at sentencing Mr Osman’s counsel failed to supply sufficient information to the Judge about the counselling that Mr Osman had engaged in, and failed to request a further adjournment so that counselling could be completed. She submitted that counselling would have addressed the underlying causes of his offending, namely violence and threats of violence. While the counselling was not a mainstream programme, she submitted it was one on one counselling more aligned to Mr Osman’s cultural background. When the Judge challenged counsel about the steps Mr Osman had taken, saying that he was told exactly what he had to do, counsel said “Yes Sir and I appreciate that” without seeking to explain further.
[44] I do not accept that Mr Osman’s counsel fell short in describing the counselling. He provided the RASNZ documents to the Judge and said that Mr Osman’s “engagement with this counselling service is probably the most appropriate course for him and he has tried to access that”, which reflected Mr Osman’s view in a neutral way. The culturally appropriate support services of RASNZ are not doubted but, on the available material (which was provided to the Judge), there was little more counsel could have said to counter the Judge’s concern about a stopping violence programme. The RASNZ letter of 23 July 2020 stating that Mr Osman had had an initial appointment that day after his “self-referral to Refugee As Survivors for psychological support and addressing his violence” was provided to the Judge but there was no detail about the violence counselling. I consider the Judge had the available information.
15 See Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].
16 Z (CA447/2012) at [27] citing Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].
[45] I accept that Mr Osman’s counsel did not explicitly seek a further adjournment. However, once the Judge challenged counsel saying that Mr Osman was told exactly what he had to do, seeking a further adjournment was not a realistic option – even allowing for difficulties due to the Covid-19 lockdown in the earlier part of 2020. As Ms Clark submitted, it is evident from the transcript of the In-Chambers discussion on the date of sentencing that any further request for an adjournment would not have been entertained and would not have altered the Judge’s view.
[46] The psychologist’s report was consistent with the Judge’s concern. Mr Osman’s attitude to engaging with a mainstream stop violence programme like Manline did not help his situation. While I consider his desire for culturally apt counselling was understandable and he did not refuse to undertake counselling aimed at stopping violence, his reluctance to engage with a programme like Manline as the Judge directed may have reinforced the Judge’s impression about Mr Osman’s attitude to his offending.
[47] I accept the Judge’s reference to assistance from Probation before sentencing was inapt since Probation could only assist in the context of a sentence. But nothing turns on this at the pre-sentence stage and it was unnecessary for counsel to seek to clarify it with the Judge. Funding was not the issue – Mr Osman wanted what he considered to be more culturally relevant counselling. The Judge’s reference on 24 July 2020 to engaging Probation to assist was made in the context of a sentence rather than discharge without conviction.
[48] I do accept, however, that following sentencing, Mr Osman’s completion of counselling sessions with RASNZ was deemed appropriate by the Department of Corrections and no further referrals to programmes were made. On that basis, Ms Holden submitted that had the Court allowed Mr Osman to complete the counselling, which was sufficient for a sentence of supervision, then a discharge without conviction would likely have been granted.
[49] The only confirmation from RASNZ states that Mr Osman completed 10 sessions. Rather than provide a letter as requested, RASNZ provided Mr Osman with its case notes. Mr Osman did not provide these, saying only that they note the
dates and times. He said the sessions discussed his offending and covered violence, which was more about stepping back and taking time to think before acting, being violence-free and taking the time to find safety. Even if there had been grounds for an adjournment pending completion of the counselling, the lack of detail from RASNZ as to the nature of the stopping violence component of the sessions raises doubt as to whether it was adequate. As Ms Clark submitted, there was nothing prohibiting Mr Osman from engaging with both an appropriate stopping violence programme and specific counselling given his refugee background.
Did the Judge err in categorising the gravity of the offending as “reasonably high”?
[50] Ms Holden submitted the Judge’s categorisation of Mr Osman’s offending was affected by his incorrect assessment that Mr Osman had failed to complete satisfactory counselling. She submitted the Judge also understated Mr Osman’s referral to a clinical psychologist. She submitted that the gravity of Mr Osman’s offending could only be assessed as low to moderate at most. She submitted that, while the offending was concerning, it was underpinned by Mr Osman’s mental health issues and also cultural and background factors. She emphasised that there has been no further offending since Mr Osman’s sentencing.
[51] Ms Clark submitted that the Judge did not err in his assessment of the gravity of Mr Osman’s offending and emphasised that the Judge had effectively managed the matter, was aware of Mr Osman’s background given his affidavit and psychologist’s report, and had directed a programme which Mr Osman did not complete. Ms Clark submitted that if Mr Osman wished for the completion of appropriate counselling to be taken into account as a mitigating factor, he needed to do as the Judge had directed.
[52] The offending was moderately serious. As Ms Clark noted, despite being three Summary Offences Act offences, the involvement of a knife was of concern. I accept that the Judge’s impression about Mr Osman’s attitude to a stop violence programme may have influenced his view of the gravity of the offending. In any event, having regard to the mitigating aspects of Mr Osman’s cultural background circumstances, including his mental health and safety concerns, I consider the overall gravity of the offending was moderate rather than reasonably high.
Were the direct and indirect consequences of conviction out of all proportion to the gravity of Mr Osman’s offending?
[53] Ms Holden submitted that Mr Osman’s convictions meant that Mr Osman had to be stood down for three years before his good character could be assessed by Immigration New Zealand and that although time has made this consequence somewhat weaker, Mr Osman’s citizenship application is on hold until the outcome of the appeal, and his conduct will be taken into account when considered in the future.
[54] As Ms Clark submitted, however, the impact that Mr Osman’s convictions have had on his immigration status are somewhat moot given the delayed appeal and that he is now able to apply for citizenship, albeit that his application is on hold pending the outcome of this appeal. There is no suggestion that his permanent residence status is at risk.
[55] In relation to employment consequences, Ms Holden accepted the Judge’s assessment of the consequences. These have been borne out. Mr Osman has had to disclose his criminal convictions to prospective employers, which has precluded employment on several occasions. Ms Holden submitted that these convictions carry a stigma which is hard to shake.
[56] Ms Clark accepted that Mr Osman’s convictions have had an impact on his employment, but submitted these consequences are not out of all proportion to the gravity of his offending.
[57] Ms Holden submitted that Mr Osman’s offending took place when he was facing issues in his life with people he did not want to be around and with his mental health. He has subsequently remained offence free and has taken active steps to address the underlying causes of his offending.
[58] Ultimately, Ms Holden submitted that the impact on Mr Osman’s employment prospects and on his ability to move forward with his life is such that the consequences of conviction are out of all proportion to the gravity of the offending.
[59] Aside from employment, there is little evidence regarding the impact of the convictions on Mr Osman’s ability to move forward with his life. However, like the Judge, I accept the employment consequences of the convictions. As the Judge anticipated, some employers will want to know about previous convictions.
[60] Weighing these consequences against the moderate offending, I conclude that the consequences of conviction are not out of all proportion to the gravity of the offending. They are a common consequence of offending. The Judge did not err in declining discharge without conviction. The exercise of the residual discretion does not arise.
[61] In these circumstances, the appeal cannot succeed and an extension of time should be declined.
Result
[62]The application for extension of time is declined and the appeal is dismissed.
Gault J