Ewebiyi v The Queen

[2011] NZCA 133

IN THE COURT OF APPEAL OF NEW ZEALAND

CA770/2010
[2011] NZCA 133

BETWEEN  HAKEEM EWEBIYI
Appellant

AND  THE QUEEN
Respondent

Hearing:         24 March 2011

Court:             Arnold, Keane and Fogarty JJ

Counsel:         G D Trainor for Appellant
K Laurenson for Crown

Judgment:      5 April 2011 at 11.30 am

JUDGMENT OF THE COURT

The appeal against sentence on two counts of using a false passport is dismissed.

REASONS OF THE COURT

(Given by Fogarty J)

1. The appellant was convicted in the District Court at Nelson following a Judge-alone trial before Judge Farish on two counts of using a false passport.  One involved a false South African passport used when the appellant first entered New Zealand and the other a false Nigerian passport used after the appellant had been in New Zealand for five years.  He was sentenced to 26 months imprisonment.  The appellant appeals the sentence on the basis that it was manifestly excessive, in particular because the starting point was set too high and insufficient credit was given for the mitigating features.  He also seeks home detention.  The Crown agrees that the sentence was severe. 

2. We note that the appellant has now been in prison for five months.  At some point between eight and nine months imprisonment he will be entitled to be considered for parole.

3. Mr Trainor argued that the appellant’s starting point should have been two years following the decision of this Court in R v Osman[1].  By comparison the decision of this Court in R v Vhavha[2] took a starting point of two and a half years on 11 charges of immigration fraud. 

   [1]      R v Osman [2010] NZCA 199.

   [2]      R v Vhavha [2009] NZCA 588.

4. Judge Farish took a higher starting point than Osman because of what she perceived as aggravating features surrounding the use of the second passport, the Nigerian passport.  As Judge Farish noted, the appellant was unwilling to accept responsibility for what had occurred but rather blamed an immigration official, his brother and his mother.   In relation to the first passport, the South African one, the appellant had admitted early in the process that this was false. 

5. It is not clear to us why five years after his entry into New Zealand the appellant submitted applications for a work permit and visa using a different birth date and accompanied by a false Nigerian passport.  However, we agree that on any view of it this was an aggravating feature of the offending. 

6. The sentencing was a difficult exercise because the Judge found that, apart from his offending, the appellant was a good man.  He has been working in a demanding field as a community support worker for the Richmond Fellowship.  She also took note that the offending would have unfortunate consequences for the appellant’s wife and child.  He is now separated from his wife but is very attached to his son and it is accepted he is a very good father.  Although sentences of home detention are not readily granted in this area, this Court recognised in Osman that they can be granted. 

7. We have decided that the sentence should not be disturbed, although it is severe, for two reasons.  First, we accept that the use of the false Nigerian passport, and the appellant’s attempt to blame others for it, were aggravating features.  Second, on the assumption that the sentence could somehow be brought down to two years, relying on the appellant’s otherwise good character and his contributions to the community, there is now little point in embarking on testing the merit of that course.  There is no point in considering home detention for the balance of the appellant’s sentence because the time taken to assess the suitability of his current partner’s residence would eat away at the remaining couple of months before he can be considered for parole. 

8. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent