Al-Harazi v The Queen
[2018] ACTCA 40
•21 September 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Al-Harazi v The Queen |
Citation: | [2018] ACTCA 40 |
Hearing Date: | 19 September 2018 |
DecisionDate: | 21 September 2018 |
Before: | Mossop J |
Decision: | The application for leave to appeal out of time filed 7 September 2018 is dismissed. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal against sentence – leave to appeal out of time – no explanation for delay in appeal – applicant seeks to change his plea following jury trial and conviction – change of plea or admission of guilt does not demonstrate error in sentencing – no utilitarian value in change of plea following conviction – no arguable basis for appeal against conviction – leave to appeal out of time dismissed |
Legislation Cited: | Court Procedure Rules 2006 (ACT), r 5506(1) Supreme Court Act 1933 (ACT), s 37J(1)(b) |
Cases Cited: | Cranfield v The Queen [2018] ACTCA 3 R v Al-Harazi (No 2) [2016] ACTSC 273 R v Al-Harazi (No 7) [2017] ACTSC 350 |
Parties: | Maged Mohammed Ahmed Al-Harazi (Applicant) The Queen (Respondent) |
Representation: | Counsel Self-represented (Applicant) J Walker (Respondent) |
| Solicitors Self-represented (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 39 of 2018 |
MOSSOP J:
Application for leave to appeal out of time
On 13 April 2017 the applicant, Mr Al-Harazi, was found guilty by a jury of the murder of his wife. On 10 August 2017, the applicant was sentenced to 30 years imprisonment with a non-parole period of 21 years. Reasons for that sentence were given on 22 November 2017: R v Al-Harazi (No 7) [2017] ACTSC 350.
The Court Procedures Rules 2006 (ACT) require that an application for leave to appeal out of time by a convicted person be made to the registrar in the first instance: r 5506(1). On 2 August 2018, the applicant applied to the registrar for leave to appeal out of time against his sentence. That application was dismissed on 23 August 2018. That decision was made by the registrar in chambers and the applicant was advised to file an application to the Court of Appeal for leave to appeal out of time. The applicant filed that application on 7 September 2018. The application is a matter in which the Court of Appeal may be constituted by a single judge: Supreme Court Act 1933 (ACT), s 37J(1)(b).
The affidavit in support of the application is an undated document which does not identify whether it was sworn or affirmed. The substance of the purported affidavit is:
I am seeking to appeal my sentence, my sentence was based on my false statement. I now want to plead guilty and be re-sentenced on my guilty plea.
The Crown relied upon an affidavit of an employee of the ACT Director of Public Prosecutions. It provided a basic history of the proceedings. In particular it identified that prior to and at his trial the offender denied his guilt as follows:
(a)The applicant’s wife was murdered on 17 March 2015. The applicant was arrested later that day.
(b)On 18 March 2015, the applicant participated in a recorded interview with police about his wife’s death. He denied stabbing her.
(c)On 7 April 2015, he entered a plea of not guilty to murder in the Magistrates Court.
(d)He maintained his plea of not guilty at his trial which ran for approximately five weeks until the jury delivered its verdict on 13 April 2017. The applicant gave evidence at his trial and denied stabbing his wife to death.
In oral submissions, the applicant said that he had previously fabricated a story and would now like to tell the truth in order to get a sentence of less than 21 years or possibly be acquitted. He made a number of submissions:
(a)that he committed the crime without knowing what he was doing, that he was forced to commit the crime and that he was not aware of his actions;
(b)that the government was not aware of the reason why he committed the crime; and
(c)that he would explain why he committed the crime, what exactly happened before the murder and that the Court would understand his reasons and motive so that it would look at the case in a different way.
He said that he had been told that he had a right to appeal but that no one contacted him and he received no legal advice.
Consideration
There is no adequate explanation why the applicant, who was represented at trial and for the purposes of sentence, failed to appeal within the time permitted by the Court Procedures Rules. The applicant made statements about the advice, or lack of advice, that he received following the sentence, but those statements were not supported by any evidence.
The delay is a significant one, from the date of sentence, 10 August 2017, until 2 August 2018 when the application was first made. Although in many cases there will be a basis for an extension of time when reasons are not given at the time orders are made, in this case the basis for the proposed appeal has nothing to do with the reasons given by the primary judge and there has, in any event, been a substantial and unexplained delay since the provision of reasons.
So far as it is possible to discern from the applicant’s submissions, the appeal would be without merit.
In relation to an appeal against sentence, the following points can be made:
(a)There is first the conceptual difficulty as to the course that the applicant proposes. While it might be possible for a person to admit the person’s guilt, it would appear to be conceptually difficult for there to be a change of plea after conviction. So long as the conviction stands the offender has been proven to be guilty his plea is no longer relevant as it has been overtaken by the jury’s verdict. Thus, at most it could involve an admission of guilt rather than a plea of guilty. The question of his plea would only become relevant if his conviction was set aside on appeal. He would then be in a position to enter a plea again. However, as things stand, the time for a plea has passed.
(b)The substance of what the applicant hopes to achieve is a reduction in sentence by reason of pleading guilty rather than not guilty. Even if it was possible to change plea in the manner proposed, in the circumstances of this case, that would not provide a basis for a lower sentence. The utilitarian value of a plea, if any, is the “primary policy consideration that determines the degree of discount for a plea of guilty”: Cranfield v The Queen [2018] ACTCA 3 at [38]. In the present case there would be no utilitarian value in the plea given that the matter has gone to a fully contested hearing before a jury over approximately five weeks. There is therefore no “benefit to the justice system” from the plea: Cranfield v The Queen at [36]. Indeed, the attempt to change plea at this stage imposes an additional burden on the justice system. Further, the plea of guilty would not be indicative of remorse or prospects of rehabilitation having regard to the fact that it only comes after a long, and now admittedly false, denial of responsibility for the murder and in circumstances where the only motivation is his self-interest in reducing his sentence.
(c)An admission of guilt by the offender (as opposed to a plea of guilty) after a trial at which he was found guilty would be a matter that was relevant to sentencing. Had the admission that the applicant has now made occurred prior to sentencing then it would have been a matter that would have been taken into account by the primary judge, particularly in relation to the offender’s prospects of rehabilitation. However, an admission of guilt after sentence is not a matter which would demonstrate an error on the part of the primary judge. It would be entirely inconsistent with the finality of judicial proceedings if an admission such as appears to have occurred in the present case was sufficient to permit a reopening of a sentencing decision upon appeal.
(d)Further, nothing about the circumstances of this case would suggest that a failure to impose a sentence that recognised his current admission of guilt would involve a miscarriage of justice. It is clear from what the applicant has said that he made a deliberate decision to put forward a false version of events to the jury in order to seek to avoid conviction, but now, in the light of the jury’s verdict and the magnitude of his sentence, he wishes to tell the truth. The truth as he now accepts it is consistent with the finding of the jury. Those circumstances do not involve any miscarriage of justice.
So far as a possible appeal against conviction is concerned, it is necessary to refer to the submission which was made orally to the effect that the applicant may have not understood what he was doing when he committed the murder. Taken at its highest, this might be a reference to the availability of defence of mental impairment. The issue of possible mental impairment at the time of the murder was only raised in the most general of ways in the applicant’s oral submissions and was not supported by any lay or expert evidence.
It is clear that the issue of the applicant’s mental health was examined in detail during the course of the proceedings below. The primary judge adjourned the hearing of the proceedings to permit investigation of the applicant’s mental health: R v Al-Harazi (No 2) [2016] ACTSC 273. His Honour then found that a question arose as to the applicant’s fitness to plead and reserved that question for consideration: R v Al-Harazi (No 3) [2016] ACTSC 290. The primary judge ultimately found that he was fit to plead: R v Al-Harazi (No 5) [2017] ACTSC 61. During the course of the sentencing evidence was given concerning the applicant’s mental health. Detailed expert evidence was considered by the primary judge: see R v Al-Harazi (No 7) [2017] ACTSC 350 at [101]-[194]. So far as the applicant’s mental state at the time of the murder was concerned, the primary judge said (at [186]):
I am satisfied that these mental impairments have been associated with the commission of the offence itself to some extent. Professor Greenberg found that the depression, associated with anxiety, preceded the offence. Dr Burhan’s opinion was clear that the mental impairment would have reduced his capacity to act rationally, though he could still do so to a significant extent. In my view, his mental impairment affects Mr Al-Harazi’s culpability for the offence to a small, not substantial, degree.
I am not satisfied that the applicant’s reference in his oral submissions to not being aware of his actions at the time of the murder is sufficient to disclose an arguable defence based on mental impairment or to disclose an arguable claim that there would be a miscarriage of justice if the conviction and sentence were allowed to stand.
The position is that:
(a)there is no adequate explanation for the failure to file a Notice of Appeal within the time permitted under the Rules;
(b)the grounds upon which it is proposed to challenge the conviction or sentence do not disclose an arguable basis for interfering with either.
As a consequence, I am not satisfied that this is a case in which I should exercise my discretion so as to grant an extension of time in which to file a notice of appeal. I therefore refuse the application.
Order
The order of the Court is:
The application for leave to appeal out of time filed 7 September 2018 is dismissed.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 21 September 2018 |
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Amendment
8 October 2018 Replace “plea of guilty” with “plea of not guilty” Paragraph: [4](d)
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