The Queen v Sarwar Rahimi

[2002] NZCA 85

IN THE COURT OF APPEAL OF NEW ZEALAND CA4/02

THE QUEEN

V

SARWAR RAHIMI

Coram:	Richardson P Gault J Anderson J
Judgment:(on the papers)	30 April 2002

JUDGMENT OF THE COURT DELIVERED BY GAULT J

1. This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Offences and sentence

1. The appellant was convicted on a plea of guilty of using a document with intent to defraud contrary to s229A(b) Crimes Act 1961.  He was sentenced on 26 November 2001 in the District Court at Auckland to nine months imprisonment.  The sentencing Judge declined leave to apply for home detention.

Relevant facts

1. The appellant fraudulently claimed refugee status on the basis of supposed persecution in Afghanistan.  Four members of his family also entered the country on this basis.  Having obtained refugee status the appellant received the rights and benefits of New Zealand residency while his permanent residence was being processed.  Those benefits included receiving an unemployment benefit, in total in excess of $36,000.  A subsequent police investigation revealed that the appellant’s history was a complete fabrication and that he had in fact been travelling throughout Asia for a number of years under several different identities.

Grounds of appeal

1. The appeal is only against the Judge’s decision under s21D(4) of the Criminal Justice Act 1985 to decline leave to the appellant to apply under s103 of that Act to a District Prisons Board for release to home detention.  It is submitted that leave should now be granted because of the emotional effects on the appellant’s three children since their father’s arrest and incarceration.  In support of that contention the appellant submitted a collection of material, including letters from the children’s trauma counsellor.

Reasons

1. This is an appeal from the exercise of a discretion and the Judge has not been shown to have erred in principle or to have been clearly wrong.  The new material could have been placed before the sentencing Judge as one of the letters indicates that the children had been in counselling since September 2000.  It was not.  Having considered the new material we are not persuaded that any different conclusion is called for.  We agree with the sentencing Judge that the circumstances required the imposition of a deterrent penalty and we add that we are satisfied that this factor outweighed the impact of the appellant’s imprisonment on his family.

Decision

1. The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington