R v Hassan - [2008] NZCA 402

IN THE COURT OF APPEAL OF NEW ZEALAND
CA420/2008
[2008] NZCA 402
THE QUEEN
v
BASHIRE HASSAN
Hearing:25 September 2008

Court:Glazebrook, Rodney Hansen and Ronald Young JJ
Counsel:M B Meyrick for Appellant

S J Mount for Crown

Judgment:1 October 2008 at 4.00 pm

JUDGMENT OF THE COURT

A        Leave to appeal out of time is granted.
B        The appeal is allowed.
C        The sentence of 2 years imprisonment is quashed.
D        A sentence of 15 months imprisonment is imposed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
[1]       Mr Hassan is a Swedish citizen. After he arrived in New Zealand in 2004, he applied for refugee status under an assumed name. Eventually the Refugee Status Appeal Authority granted him refugee status. He then claimed various benefits from Work and Income New Zealand.
[2]       In late February 2008 he pleaded guilty to: using a forged document (s 257(1)(b) Crimes Act 1961, the use of a false birth certificate); making a false declaration (s 111 Crimes Act, his false declarations in support of his application for refugee status); and attempting to pervert the course of justice (s 117(e) Crimes Act, his provision of the false declarations to the Refugee Status Appeals Authority).
[3]       Judge Harland sentenced the appellant to 2 years imprisonment on the charges of forgery and attempting to pervert the course of justice, and 18 months imprisonment on the false declaration charge (all concurrent sentences).
[4]       The appellant says the sentence was manifestly excessive. He seeks leave to appeal, being 1 month and 12 days out of time. The Crown do not oppose the application and a reasonable excuse for the delay has been provided. Leave is therefore granted.
[5]       In support of the appeal the appellant says that the Judge:
(a)adopted a starting sentence beyond that of similar cases;
(b)failed to give proper weight to the appellant’s age;
(c)failed to give proper weight to the appellant’s frank admission of his offending;
(d)failed to take into account that his offending was motivated by altruistic and not commercial reasons.

Background facts
[6]       The appellant was born in Somalia but when he was very young his family came to Sweden and he became a Swedish citizen. In 2004, when he was 17 years, he came to New Zealand. He entered lawfully using his Swedish passport and was given a 3 month visitors permit. Before the permit expired, in August 2004, he claimed refugee status in New Zealand. His application contained a false name, birth date, country of origin and method of entry into New Zealand.
[7]       The appellant supplied a false birth certificate and later made a statutory declaration declaring this information was true. In January and May 2005 he was interviewed by immigration officers and again confirmed the information he had supplied in support of his application for refugee status was true.
[8]       Initially the appellant was refused refugee status, but on appeal the Refugee Status Appeal Authority allowed the appeal and granted him such status from October 2005.…

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 R v Hassan

Details

AGLC: R v Hassan [2008] NZCA 402
Case: [2008] NZCA 402
Decision Date: 1 October 2008

CaseChat Overview and Summary

In R v Hassan, the Court of Appeal of New Zealand reviewed the sentence imposed on Mr Hassan, a Swedish citizen who had committed immigration fraud in New Zealand. Mr Hassan had applied for refugee status under an assumed name and claimed various benefits before being convicted of using a forged document, making a false declaration, and attempting to pervert the course of justice. He was sentenced to a total of 3.5 years imprisonment by the District Court, which the appellant considered manifestly excessive. The appeal was allowed, and the case reached the Court of Appeal.

The key legal issues in the appeal were whether the starting point for sentencing was correctly determined, and whether the sentence was manifestly excessive. The appellant argued that the District Court had adopted a starting sentence beyond that of similar cases, failed to give proper weight to the appellant's age, frank admission of his offending, and the altruistic motivation behind his actions. The Crown conceded that the starting point was higher than some similar cases but argued that the sentence was not manifestly excessive.

The Court of Appeal found that the District Court had taken the wrong approach by relying on a case involving a private investigator providing a false report in Family Court proceedings, instead of considering similar cases of immigration fraud. The Court of Appeal considered cases involving immigration fraud and determined that a starting point of two years imprisonment was appropriate. The Court of Appeal also found that the appellant's guilty plea, youth, and clean criminal record warranted a discount of approximately 40%. As a result, the Court of Appeal reduced the sentence to 15 months imprisonment.

The final orders of the Court of Appeal were that leave to appeal out of time was granted, the appeal was allowed, the sentence of 2 years imprisonment was quashed, and a sentence of 15 months imprisonment was imposed.

Orders