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Osman v R
Court of Appeal,
Wellington CA83/2010 and CA84/2010; [2010] NZCA 199
12 May 2010; 14 May 2010
Hammond, Harrison and
Fogarty JJ
Sentencing -
identity fraud - whether home detention can be granted - Immigration
Act 1987 s 142 - Sentencing Act, s 7
Mr and Mrs Osman
(husband and wife) produced and supplied false immigration documents as
part of a scheme to bring relatives of their refugee co-offenders to
New Zealand. In particular, Mrs Osman filed papers purporting to be the
adopted daughter of one of those refugees. Mr and Mrs Osman 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. Having been sentenced to 14 and 12 months'
imprisonment respectively they appealed on the grounds that the
sentencing judge was in error when he concluded that he could not
follow the general statements of principle provided by the Sentencing
Act 2002 as to the availability of home detention as an alternative to
imprisonment in his evaluation of the merits.
Held:
1 Eligibility for
home detention depends upon the sentencing judge deciding that, but for
the availability of home detention, the offender would otherwise be
sentenced to a short-term of imprisonment (ie of two years or less): s
15A of the Sentencing Act 2002. In effect, the Court is given a
discretion to commute to home detention what would otherwise be a
short-term sentence of imprisonment. There is nothing in the Sentencing
Act to suggest a presumption for or against such commutation, either
generally or in respect of particular types of offence. So what is
called for is an exercise of sentencing discretion in a way which gives
effect to the purposes and principles of sentencing recorded in ss 7
and 8 of the Sentencing Act (see para [20]).
Dissenting decision of
William Young P in R v Vhavha
[2009] NZCA 588 approved.
2 It was an error
in law to construe the decision in R
v Hassan [2008] NZCA 402 as preventing the sentencing judge from
adopting a case specific two stage evaluation of the merit of home
detention (see para [22]).
R v Hassan [2008] NZCA 402
discussed.
3 As to s 7(2) of
the Sentencing Act 2002, there is no statutory basis for an appellate
court to mandate sentencing to deter in a category of case. Each
sentencing judge must approach each case as an individual case.
Furthermore, the purposes available in s 7(1) have to be applied
rationally. A sentence is not a deterrent to other persons simply
because a judge says it will be. The judge needs to have a reasonable
belief that will be the case. Such reasons need not be based on proven
fact. Judges know the world (see para [23]).
4 As to the
argument that a home detention sentence would effectively send the
appellants back into the community, they being persons who are not
lawfully here, no steps had been taken to deport the appellants. It is
very important for the Court when sentencing not to interfere with nor
anticipate decisions of agents empowered by Parliament to deal with
deportation issues (see para [27]).
R v Ondra [2009] NZCA 489 applied.
Appeals allowed.
Sentences of 14 and 12 months imprisonment set aside and three and two
months' home detention substituted (both appellants having served
4.5 months imprisonment).
Other cases
mentioned in
the Judgment
Department of Labour v Liao (HC AK CRI 2004-404-000499, 14
April 2005)
R v D [2008] NZCA 254
R v Iosefa [2008] NZCA 453
Counsel
M J Hay and N R Woods for Appellants
D R La Hood and P D McCarthy for Respondent
Judgment of the
Court
A
Appeals allowed.
B
Sentences of imprisonment set aside.
C
We substitute instead sentences of:
(a) In the case of
Feisal Sheikh Osman three months’ home detention, commencing from the
date of his release from prison.
(b) In the case of
Aisha Sheikh Osman two months’ home detention from the date of her
release from prison.
Reasons of the Court
(Given by Fogarty J)
Introduction
[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 took a lesser starting point of 14 months from which he
deducted six months for mitigating factors leading to an end result of
eight months’ imprisonment. He granted Mr Jamah home detention,
principally to take into account the needs of both defendants’ young
children.
[8] Judge Harrop sentenced Mr
and Mrs Osman, taking into account the sentencing of Judge Tompkins. He
regarded the lead offender to be Mrs Farduce Mohammed. Noting her
starting point of 24 months he took a starting point for Mr Osman of 21
months and a starting point of 18 months for Mrs Osman. He made a
distinction between husband and wife on the basis that the husband was
more fully involved. The end sentence for Mr Feisal Osman was 14 months
and for Mrs Aisha Osman, 12 months. It can be seen immediately that
this entailed substantial discounts from the starting points. The Judge
did this by providing for a 25 per cent discount for the guilty pleas
and a further discount for other personal mitigating circumstances.
[9] Mr Woods submitted that the
suggested starting points were unreasonably severe. There was no
argument against the discounting. Mr Woods sought respective starting
points of 15 months and 12 months as against 21 and 18. An appeal Court
will only interfere with a sentencing Judge’s selection of starting
points if there is an error of principle and analysis or the starting
point or end point is manifestly excessive. There are no tariff
decisions which come to bear.
[10] Judge Harrop could have
adopted lower starting points than he did, and still apply a relativity
principle to Mrs Mohammed. The starting points reflected a judgment of
the degree of relative culpability, which in turn was measured in the
context of the seriousness of the offences.
[11] Mr Woods’ arguments for
lower starting points were essentially arguments for mitigation taking
into account the plight of Mr and Mrs Osman living in a refugee camp in
Kenya. We were informed by Mr La Hood for the Crown and Mr Woods (most
helpfully) of the activity of Mr Osman particularly in obtaining
documents, which were false, in Kenya to support the applications as
well as completing documents prepared on their behalf. Having heard
that information we are left with the view that the starting points
selected by Judge Harrop are unassailable on appeal.
Home detention
[12] The merit point on
appeal is the issue of whether or not the appellant should have been
granted home detention. Judge Harrop considered home detention. He
regarded it as a difficult question. He referred to general statements
of principle in two recent decisions of the Court of Appeal that home
detention is a real alternative to imprisonment and carries with it a
considerable measure of deterrence and denunciation. He referred to R v Iosefa1 and R v D2. However,
he went on to say that he had to sentence:
… based on the
principles set out by Higher Courts in relation to immigration breaches,
if I can call them that, that a deterrent sentence, a strong deterrent is
required.
[13] The Judge quoted from the Court
of Appeal in R v Hassan3 where the Court said:
[27] We also wish to
add our voice to those judges who have stressed deterrence as an
important sentencing principle in this area. The integrity of the country’s
immigration system is a vital part of its integrity as a state in deciding who may live
within its borders. Those who dishonestly challenge the immigration
system can expect deterrent sentences and can expect to be sent to prison.
[14] The issue for argument on this
appeal is whether or not Judge Harrop was correct to conclude that he
could not follow the general statements of principle provided by the
Sentencing Act 2002 as to the availability of home detention as an
alternative to imprisonment in his evaluation of the merits, but rather
had to decide the case based on the principles set out by the higher
Courts in relation to immigration breaches.
[15] The decision was difficult
for Judge Harrop because another division of this Court in R v Ondra4 had
distinguished Hassan and
granted home detention to an offender whose permit to reside in New
Zealand had expired and who had been served with a removal order. His
offence was not against the Immigration Act. He had been sentenced to
16 months’ imprisonment after pleading guilty to a charge of
cultivating cannabis. The District Court Judge had found “… If I felt
that I could properly do my job and give you home detention, I would,
but I feel that I cannot, in view of the law.”
She was referring to another paragraph in Hassan where the Court of Appeal
said:
[34] There can be no
question of this sentence being served by way of home detention. The
appellant is not entitled to be resident in New Zealand and can expect to be
deported immediately upon the completion of the sentence.
[16] In Ondra this Court held that Hassan should not be interpreted as
intending to mean that offenders unlawfully in New Zealand could never
be sentenced to home
detention.
[17] Unbeknown to Judge Harrop
the Court of Appeal has revisited the subject most recently in the
decision R v Vhavha5.
[18] The appellant there had
been sentenced to 18 months’ imprisonment because Judge Weir, the
sentencing Judge, considered that Hassan
precluded home detention.
A division of this Court divided.
[19] The majority in Vhavha accepted that Ondra was correct inasmuch as it
said Hassan should not be
interpreted to say that home detention was out of the question.
Having said therefore that Judge Weir had erred by failing to consider
the possibility of home detention on its merits the majority then
reasoned:
[19] As this Court
observed in Hassan with
reference to immigration fraud:
[27] ... judges ...
have stressed deterrence as an important sentencing principle in this
area. The integrity of the country’s immigration system is a vital
part of its integrity as a state in deciding who may live within its
borders. Those who dishonestly challenge the immigration system
can expect deterrent sentences and can expect to be sent to prison.
This
message reflects that, as stated by Keane J in Department of Labour v Liao HC AK CRI 2004-404-000499 14
April 2005 at [16], “Immigration status in New Zealand
has become a precious commodity” and “The law requires any persons
entering New Zealand to be truthful”.
[20] Home detention
is one of a number of options provided for in the Sentencing Act 2002.
It ranks below imprisonment in the hierarchy of sentences. Section
15A confers on a sentencing court a discretion to impose a home detention
sentence where otherwise an imprisonment term of two years or less would
result. The President’s judgment at [31] sets out the twostepped process involved.
[21] That
said, we consider that although home detention is available as an alternative
sentence to imprisonment in immigration fraud cases, it is only likely to be an
appropriate sentence in rare and exceptional cases.
[22] We say this
because identity fraud (this being such a case) has serious repercussions
in the immigration and passport fields. Accurate passport information
is fundamental to New Zealand’s ability to control its frontier and enforce
its immigration policy. A person seeking entry into New Zealand must carry a
passport which accurately sets out that person’s identity, age, and
country of origin. Visa requirements can all too easily be circumvented by
obtaining a false passport purportedly issued by a state with which New Zealand has
visa-free arrangements. False passport identities are also a mechanism for
circumventing legitimate security controls.
[20] The President dissented in
Vhavha. We agree with his
reasons. We note particularly:
[29] Eligibility for
home detention depends upon the sentencing judge deciding that, but
for the availability of home detention, the offender would otherwise be
sentenced to a short-term sentence of imprisonment (ie of two years or less): s 15A
of the Sentencing Act 2002. In effect, the Court is given a discretion to
commute to home detention what would otherwise be a shortterm sentence of
imprisonment. There is nothing in the Sentencing Act to suggest a presumption
for or against such commutation, either generally or in respect of
particular types of offence. So what is called for is an exercise of sentencing
discretion in a way which gives effect to the purposes and principles of
sentencing recorded in ss 7 and 8 of the Sentencing Act.
[21] William Young P went on to then
examine various approaches within this two stage approach, examining
within that context how appropriate it is for sentencing Judges to
focus on the nature of the offending and develop rules of thumb, and on
the weight to be given to deterrence. He concluded:
[43] While those
considerations may suggest that a strong line on immigration offending
(for instance a policy of always imprisoning offenders) might have
a tendency to reduce immigration offending, similar lists can be prepared
in relation to robbery, burglary and drug dealing (mentioned here
because of the examples I have earlier given). Yet when judges deal with
robbers, burglars and drug dealers where the otherwise appropriate sentence
is imprisonment for two years or less, they do not
operate
on the basis of a presumption against home detention or treat home detention as
appropriate only in “rare and exceptional cases”. And, in any event, there are
limits to the amount of prison accommodation which the State can be expected
to provide in the interests of maximising deterrence.
[44] Given these
considerations, I am reluctant to single out immigration offending as a
particular type of crime for which considerations of deterrence assume
such great significance as practically to exclude home detention.
[45] So, coming back
to this case again, I do not see the requirements of holding the appellant
to account, denunciation or deterrence as logically controlling the
decision whether to commute the otherwise appropriate sentence of
imprisonment to home detention. That being so, and the appellant being in
all respects a good candidate for home detention, I see the least restrictive
outcome principle (see s 8(g)) as the primary consideration, with the result that
I would allow the appeal and sentence the appellant to nine months home
detention.
Sentencing is an evaluative exercise in
each case
[22] We think that Judge
Harrop erred in law in construing the decision in Hassan as preventing him from
adopting a case specific two stage evaluation of the merit of home
detention, such as was done by Judge Tompkins in respect of the other
offenders. Judge Harrop was deflected by Hassan away from applying the
purposes and principles of the Sentencing Act to these particular
offences. The Sentencing Act makes sentencing a discretionary activity.
Section 7 provides:
7 Purposes of sentencing or
otherwise dealing with offenders
(1) The purposes for
which a court may sentence or otherwise deal with an offender are -
(a) to hold the
offender accountable for harm done to the victim and the community by
the offending; or
(b) to
promote in the offender a sense of responsibility for, and an acknowledgment of,
that harm; or
(c) to
provide for the interests of the victim of the offence; or
(d) to
provide reparation for harm done by the offending; or
(e) to
denounce the conduct in which the offender was involved; or
(f) to
deter the offender or other persons from committing the same or a similar
offence; or
(g) to
protect the community from the offender; or
(h) to
assist in the offender’s rehabilitation and reintegration; or
(i) a
combination of 2 or more of the purposes in paragraphs (a) to (h).
(2) To avoid doubt,
nothing about the order in which the purposes appear in this
section implies that any purpose referred to must be given greater weight than
any other purpose referred to.
[23] Subsection (2) is important.
There is no statutory basis for an appellate court to mandate
sentencing to deter in a category of case. Each sentencing judge must
approach each case as an individual case. Furthermore, the purposes
available in s 7(1) have to be applied rationally. A sentence is not a
deterrent to other persons simply because a judge says it will be. The
judge needs to have a reasonable belief that will be the case. Such
reasons need not be based on proven fact. Judges know the world. In
this case we queried how would refugees in a tent camp in Africa be
deterred by a short sentence of imprisonment vis-a-vis home detention?
The President, in his dissent in Vhavha
states what we think is the same view, if expressed more
generally:
[40] ... What I am
more sceptical about is marginal deterrence, that is, the idea that moderate
variations in sentencing severity (such as between a sentence of
imprisonment and home detention) have an appreciable impact on rates of offending.
[24] For this reason we consider we
are entitled to set aside the Judge’s conclusion and embark on the two
stage process ourselves. We do not disturb stage one of the
process because we have decided not to disturb the judgment of Judge
Harrop as to the short term sentences of imprisonment. Paragraphs [33]
and [34] of the President’s judgment in Vhavha encourage examination of the
personal circumstances of the offender including their criminal history
and whether they are good candidates for home detention. A similar
analysis was undertaken by Judge Harrop, particularly in his sentencing
indication. There Judge Harrop said:
There are powerful
arguments in favour of home detention being imposed here and that is why
I have taken quite some time this afternoon to adjourn and look at the Court
of Appeal authorities and also to reflect on the submission that Mr
Miller has made on your behalf. There is no doubt in my mind that if I was
simply imposing a sentence which was suitable for you in isolation, I would
have no hesitation in imposing home detention. I do not think that you need
to go to prison, or should go to prison, looking at you as individuals. You have
no previous convictions. I expect that serving a prison sentence would
be particularly difficult for you. You would be
associating
with people who are criminals, sometimes of a violent nature. You are otherwise of
good character and any personal deterrence can certainly be achieved
by a sentence of home detention. There is a need to recognise, as the
Court of Appeal has said in Iosefa
and R v D that home detention is a
serious deterrent sentence. It is not a light sentence, and as the Court of Appeal said
in Iosefa it is a real
alternative to imprisonment and carries with it a
considerable measure of the principles of deterrence and denunciation.
We agree
with all of Judge Harrop’s comments.
[25] Once it is accepted that
home detention can be a deterrent sentence, then we think that in this
case the argument against home detention falls away. Sentencing to
home detention is still holding the appellants accountable and sending
a signal of deterrence.
[26] Mr La Hood for the Crown
argued that a home detention sentence would effectively send the
appellants back into the community, they being persons who are not
lawfully here.
[27] But steps have not been
taken to deport the appellants. It is very important for the Court when
sentencing not to interfere with nor anticipate decisions of agents
empowered by Parliament to deal with deportation issues. This is one of
the main points made in Ondra:
[12] Offenders who
are unlawfully in New Zealand are liable for removal under the Immigration
Act 1987. The making of a removal order is entirely a discretionary matter
for the Chief Executive or designated immigration officer: see Part 2
of the Act. Liability for removal is neither conditional upon nor triggered by
the offender’s convictions; instead, it is dependent upon their unlawful
immigration status.
[28] Favourable home detention
reports and agreements have been obtained in this case.
[29] The Department of
Corrections’ full pre-sentence report recommends community detention
with community work for Mrs Osman and community detention for Mr Osman
who is currently employed full time.
[30] Both were sentenced on 26
January. Both have now served four and a half months. Mr Feisal Osman’s
sentence being 14 months he was likely to serve seven; and Mrs Aisha
Osman of 12 months is likely to serve six. There was a similar
situation in Ondra, see
paragraph [18] where Mr Ondra was sentenced to 16 months, likely to
serve eight, had served nearly three, and a home detention sentence of
six months was substituted. It would appear the logic in Ondra was that he had served nearly
the equivalent of a six months term of imprisonment with ten and a
little more months to go. The home detention was approximately half of
that rounded up to six months.
[31] On a like basis Mr Osman
has served an equivalent of a nine month term of sentence with a five
month term of sentence to go, half of that being two and a half months,
which rounds up to three months’ home detention. On a similar analysis
Mrs Aisha Osman has served an equivalent sentence of nine months and
has a three month term of sentence to go, rounding that up to two
months’ home detention.
[32] We think in the
circumstances that home detention is the better outcome. It is a more
severe sentence than community detention. Accordingly, the appeal is
allowed. Mr Feisal Osman will receive a sentence of three months’ home
detention; and Mrs Aisha Osman of two months’ home detention.
[33] In his Minute of 14 May
2010 Hammond J indicated that the address for home detention is to be
at Flat 148/39 Owen Street, Newtown, Wellington, or as otherwise
directed by the Department of Corrections. The Minute indicated that
home detention was to commence at 2.00 pm on 14 May 2010. For the
avoidance of doubt, we record those directions here.
Solicitors for the
Appellants: Rowland Woods (Wellington)
Solicitors
for the Respondent: Luke Cunningham
and Clere (Wellington)
1 R v Iosefa [2008] NZCA 453.
2 R v D [2008] NZCA 254.
3 R v Hassan [2008] NZCA 402.
4 R v Ondra [2009] NZCA 489.
5 R v Vhavha [2009] NZCA 588