Ismail v R [2011] NZCA 444 (7 September 2011)

Court of Appeal of New Zealand

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Ismail v R [2011] NZCA 444 (7 September 2011)

Last Updated: 14 September 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA253/2011 [2011] NZCA 444

BETWEEN SAHRA ISMAIL Appellant

AND THE QUEEN Respondent

CA266/2011

AND BETWEEN ALI ABDI Appellant

AND THE QUEEN Respondent

Hearing: 23 August 2011

Court: O'Regan P, Ronald Young and Venning JJ

Counsel: M B Meyrick for Appellant Ismail W N Dollimore for Appellant Abdi F Sinclair for Respondent

Judgment: 7 September 2011 at 11.30 am

JUDGMENT OF THE COURT

1. Ms Ismail’s appeal against sentence is dismissed.
2. Mr Abdi’s appeal against sentence is allowed. The sentence imposed in the District Court is quashed and replaced by a sentence of two years and six months imprisonment on all counts, such terms to be served concurrently.

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REASONS OF THE COURT

(Given by O’Regan P)

Introduction

[1] Mr Abdi and Ms Ismail faced trial with two others on numerous counts of immigration fraud,[1] using a document with intent to defraud,[2] using forged documents[3] and conspiring to commit an offence.[4] They entered guilty pleas to multiple counts on the fifth day of their jury trial. Mr Abdi was convicted on 17 counts and Ms Ismail was convicted on 15 counts. Mr Abdi was sentenced to imprisonment for two years and seven months and Ms Ismail was sentenced to imprisonment for two years and nine months.[5] They appeal against those sentences.

Immigration fraud

[2] Both Mr Abdi and Ms Ismail were refugees from Somalia. They went to the Netherlands and had been granted Dutch citizenship. They lived in the Netherlands for 12 years.
[3] The Netherlands does not allow refugees to bring other family members to the Netherlands as secondary migrants. New Zealand does allow this. Mr Abdi and Ms Ismail saw that as an opportunity to facilitate the resettlement of relatives living in refugee camps in Egypt and Yemen.
[4] In order to carry out that plan, they came to New Zealand and were granted visitor’s permits. They then claimed refugee status. Ms Ismail successfully applied for New Zealand residence but Mr Abdi’s application was declined.
[5] On the basis of her residence permit, Ms Ismail was able to bring seven relatives to New Zealand, and they too were granted residence permits. Mr Abdi sought to do the same in relation to 11 people, but was not successful in that regard. He did, however, assist with the illegal entry into New Zealand to one of his co-accused, Mr Ali.
[6] In the course of carrying out this plan, the appellants created, submitted and used false documentation to mislead the New Zealand immigration authorities. The object of the scheme was to ensure that the appellants could live in the same country as those whose entry to New Zealand they had facilitated. The appellants’ claims for refugee status in New Zealand were false, because they had become Dutch citizens.

The District Court sentencing

[7] The sentencing Judge, Judge Connell, lamented the fact that the appellants’ guilty pleas came so late. He questioned why it was not realised earlier that there was no defence.
[8] He noted that Ms Ismail’s offending was calculated and premeditated. He recounted the subterfuge she used to falsely claim to be a refugee from Somalia. He recorded that the offending was carefully planned and implemented. He called her offending a “prolonged fraud to achieve her end of being a citizen of this country”.
[9] The Judge noted that Ms Ismail had expressed no remorse. But he accepted her motive was to help her relatives get away from the difficulties of their lives and be accepted in New Zealand. It was notable that her offending had led to seven others entering New Zealand illegally.
[10] The Judge took a starting point of three years. He noted this was higher than the starting point taken in two similar cases, Farrah Hassan v Department of Labour[6] and R v Bashire Hassan,[7] but said the offending in the present case was more serious than in those cases. He made an allowance of three months for the very late guilty plea, giving a sentence of two years and nine months.
[11] The Judge said Mr Abdi’s offending featured the same premeditation and planning as that of Ms Ismail. It was prolonged, as hers was. He saw the difference between the offending of Ms Ismail and Mr Abdi as being the fact that Mr Abdi did not help with the illegal entry into New Zealand of other people as Ms Ismail had. Overall he saw the offending as of similar seriousness as Ms Ismail’s and adopted a starting point of two years and nine months. He indicated that he would allow three months for the late guilty plea, but in fact allowed two months, giving an end sentence of two years and seven months.

Were the starting points too high?

[12] The essential complaint of both appellants was that the Judge overstated the seriousness of their offending and adopted starting points that were too high when compared to comparable cases.
[13] For Ms Ismail, Mr Meyrick said the sentence was out of line with both Bashire Hassan and Farrah Hassan. But the sentence imposed on Bashire Hassan, 15 months, took into account a very early guilty plea. The starting point adopted in that case by this Court was two years imprisonment. Bashire Hassan did not succeed in bringing others into New Zealand as Ms Ismail did. This Court observed in its judgment in R v Bashire Hassan that starting points in the region of two years and six months may be appropriate in future cases, with significant uplifts where other persons are brought into New Zealand.
[14] The starting point adopted by the High Court in Farrah Hassan v R was two and a half years. The offending in that case involved the same scam as in this case, but the scam was not successful in obtaining entry for others into New Zealand. The end sentence was 18 months imprisonment, reflecting a 40 per cent discount for an early guilty plea and other mitigating factors.
[15] Counsel referred us to a number of other decisions of this Court in an effort to persuade us that the starting points were too high.[8] We have considered those cases but they do not persuade us that the starting points in the present case were outside the available range, given the prolonged and planned offending in this case. In fact, the sentence of 26 months imprisonment in Eweyibi v R for less serious offending over a shorter period of time was arguably sterner than the sentences in this case.[9] While we feel some sympathy for the motive behind the offending, the importance to New Zealand of effective border control is obvious and deterrence of others from engaging in similar offending is also obvious.

Home detention

[16] Given the level of the sentences, the issue of home detention does not arise. Counsel referred us to authorities in this Court where varying views about the availability of home detention for cases of immigration offending have been expressed. We see the issue as now being settled by this Court’s endorsement in R v Osman[10] of the dissenting view expressed by William Young P in R v Vhavha[11] that there is no presumption against home detention in cases of immigration offending. Sentencing Judges should therefore evaluate the appropriateness of home detention in immigration cases in the same way as in other cases, giving effect to the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act 2001.

Result

[17] We see no grounds to interfere with the sentences imposed in the District Court. However, we acknowledge the error made by the Judge in deducting only two months from the starting point for Mr Abdi. Crown counsel, Mr Sinclair, agreed that this should be rectified. We allow Mr Abdi’s appeal to that limited extent. We dismiss Ms Ismail’s appeal.

Solicitors:
Berman and Burton, Solicitors, Auckland for Appellant Ismail
Crown Law Office, Wellington for Respondent

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[1] Immigration Act 1987, s 142(1)(c), now repealed and replaced with the Immigration Act 2010, ss 342 and 345.
[2] Crimes Act 1961, s 229A(b), now repealed.
[3] Crimes Act 1961, s 257(1)(b).
[4] Crimes Act 1961, s 310.
[5] R v Abdi DC Hamilton CRI-2010-019-299, 21 April 2011.
[6] Hassan v Department of Labour HC Auckland CRI-2005-404-356, 20 December 2005.
[7] R v Hassan [2008] NZCA 402.
[8] Osman v R [2010] NZCA 199, R v Vhavha [2009] NZCA 588, Ewebiyi v R [2011] NZCA 133.

[9] The starting point adopted by the sentencing Judge is not disclosed in this Court’s decision but appears to have been higher than the end sentence.
[10] At [20].
[11] At [29] and [43]–[45].