R v Al-Harazi (No 7)
[2017] ACTSC 350
•10 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Al-Harazi (No 7) |
Citation: | [2017] ACTSC 350 |
Hearing Dates: | 13 June and 4 August 2017 |
DecisionDate: | 10 August 2017 |
ReasonsDate: | 22 November 2017 |
Before: | Refshauge J |
Decision: | 1. Maged Mohammed Ahmed Al-Harazi be convicted of the murder of Sabah Al-Mdwali on 17 March 2015. 2. Maged Mohammed Ahmed Al-Harazi be sentenced to imprisonment for 30 years to commence on 17 March 2015. 3. A non parole period be set to commence on 17 March 2015 and end on 16 March 2036. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – offences against the person – murder – victim died as a result of multiple stab wounds – offender found guilty at trial by jury – circumstantial evidence case – family violence offence – mental state of the offender – Verdins principles – offender found fit to plead prior to commencement of trial – offender a non-Australian citizen on a residential visa – sentenced to a term of imprisonment for 30 years |
Legislation Cited: | Crimes Act 1900 (ACT), ss 12, 311, Div 13.2 Crimes (Sentence Administration) Act 2005 (ACT), s 86 |
Cases Cited: | Ashdown v The Queen [2011] VSCA 408; 219 A Crim R 454 Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Weininger v The Queen [2003] HCA 14; 212 CLR 629 |
Parties: | The Queen (Crown) Maged Mohammed Ahmed Al-Harazi (Accused) |
Representation: | Counsel Mr S Drumgold and Ms E Beljic (Crown) Mr K Archer (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 207 of 2015 |
REFSHAUGE J:
In the early hours of 17 March 2015, Sabah Al-Mdwali was stabbed to death in her home in Knoke Avenue, Gordon, ACT.
Shortly after, her husband, Maged Mohammed Ahmed Al-Harazi, attended with his children at Tuggeranong Police Station and, through sign language and some broken English, tried to report that his wife had been stabbed. Mr Al-Harazi's eldest son then told police that she had been stabbed by her father and her youngest brother. Police initially arrested Ms Al-Mdwali's father and brother because they had been told that they were the perpetrators.
Investigation soon showed them to be unlikely suspects, however, and police turned their attention to Mr Al-Harazi. At 10:33pm on 17 March 2015, he was arrested and charged with her murder.
He pleaded not guilty to the charge and, after a trial by jury, was, on 13 April 2017, found guilty by the jury of the offence of murdering his wife, Ms Al-Mdwali.
Murder is an offence against s 12 of the Crimes Act 1900 (ACT) which attracts a maximum penalty of imprisonment for life. That is, however, not a mandatory penalty.
The facts
The jury, of course, gives a verdict of guilty or not guilty without reasons. That means that, when it finds an accused person guilty, there are, apart from that finding, no expressed findings of fact even though, of course, these are required for sentencing the guilty offender.
I explained in R v Bartlett [2016] ACTSC 390 at [6]-[7], the approach to be followed in making these necessary findings:
6.In this case the finding of guilt was made by a jury. It is therefore necessary for me to find the facts from the evidence given at the trial. The facts that I must find must, of course, be consistent with the verdict of the jury. Where facts aggravate the offence, they must be found beyond reasonable doubt. Where Mr Bartlett relies on mitigatory facts, I need to find them on the balance of probabilities.
7.These principles have been set out and explained in Cheung v The Queen [2001] HCA 67; 209 CLR 1 at 12-14; [13]-[16]. I shall approach my task in this way.
In this case, while there was a good deal of challenge to the Crown evidence, the principal issue was whether the person who killed Ms Al-Mdwali was Mr Al-Harazi or one or both of his father-in-law and brother-in-law. The verdict of the jury resolves that issue clearly and permits a reasonably clear finding of facts from the Crown case which, in the light of the jury's finding and the conduct of the defence case, can generally be accepted.
Applying the relevant principles, I make the following findings of fact.
The accused, Maged Al-Harazi was born in Sana’a, Yemen, in 1981. His parents still live in Yemen. He has seven brothers and five sisters who live in Yemen and Saudi Arabia, and one sibling who lives in Spain.
Mr Al-Harazi met Ms Al-Mdwali in 2005. They married in Yemen later that year. They have three children, a son, Akram, born in 2007, a daughter, Maysa, born in 2009, and a second son, Kareem, born in 2014. The children were all born in Australia.
In 2007, Ms Al-Mdwali migrated to Australia with her parents and siblings and lived with her family in Canberra. Mr Al-Harazi remained in Yemen. Ms Al-Mdwali became an Australian citizen on 29 September 2011.
In 2008, Ms Al-Mdwali and one of her sisters returned to Yemen and both brought their husbands, including Mr Al-Harazi, back to Australia.
Initially, Mr Al-Harazi and Ms Al-Mdwali lived with her parents in their house at Gowrie, but eventually moved out and shared a house with Ms Al-Mdwali's sister and her husband in Monash for a time.
Towards the end of 2011, Ms Al-Mdwali and Mr Al-Harazi returned to Yemen to live. It appears, however, that Ms Al-Mdwali was unhappy with the conditions there and missed her parents. She sought to return to Australia.
Mr Al-Harazi was reluctant to do so but eventually the couple returned to Australia in 2014. They initially lived with family and then secured public housing in Knoke Avenue, Gordon.
The marriage was not entirely happy and there was evidence of disputes between husband and wife. Some of these disputes related to where they should live.
Mr Al-Harazi wanted to return to Yemen, but Ms Al-Mdwali wanted to stay in Australia. He was prepared, it appears, to live in Australia temporarily, but wanted ultimately to return to Yemen.
Among events that showed the relationship between the couple, the Crown relied, at trial, on two in particular, which were as follows.
The first occurred in December 2014, when Ms Al-Mdwali was staying with her parents. Mr Al-Harazi destroyed items of furniture in their Gordon home and threw them around the house, videoing what he had done. He asked his older children in the video where they wanted to live and they unenthusiastically answered “Yemen”. He then sent the video to his wife, who understood that this was a message to her that she would have to return to Yemen as there was nothing left in Australia for them.
She did, however, later return to live with Mr Al-Harazi in Gordon, but, on 28 January 2015, a further incident occurred. They again fought, this time over Mr Al-Harazi's failure to take some prescribed medication. The fight was so loud that it disturbed the neighbours who twice called the police. Police officers attended on both occasions.
There was some suggestion that the medication was sleeping medication.
Ms Al-Mdwali's father said in evidence that it was “just one tablet for him to sleep.” That it was sleeping medication was challenged by Mr Al-Harazi's counsel. I am not sure that the precise nature of the medication is important for the purpose of sentencing.
I had evidence from Mr Al-Harazi's general practitioner, Dr Mohamed Helmy, in the form of a brief report and a copy of his practice's patient notes. It shows that, on 16 January 2015, Mr Al-Harazi was prescribed Lexapro, a drug addressing depressive and anxiety disorders in adults. It may, of course, assist with sleep, but it seems most likely that this was the tablet that he refused to take.
On the occasion of the second event, Ms Al-Mdwali's parents and brothers came over to the house about the time the police arrived and ultimately she left with her parents and the youngest child, Kareem. The older children remained initially with
Mr Al-Harazi, but later joined their mother living with her parents. Mr Al-Harazi wished his wife to return to live with him, but his father-in-law refused to allow it.
A complicated arrangement was made at a meeting held with the assistance gained from the close Canberra Yemeni community to resolve the impasse. At this meeting, Mr Al-Harazi and his father-in-law had a confrontation outside the house where the meeting was to take place. Mr Al-Harazi punched his father-in-law and there was further altercation. Nevertheless, the meeting proceeded and resulted in an agreement being signed by Mr Al-Harazi with his father-in-law, following which Ms Al-Mdwali returned to live with her husband.
Mr Al-Harazi worked as a cleaner and a supermarket trolley collector from time-to-time but also experienced periods of unemployment. He managed to obtain a job in a Turkish restaurant in Yarralumla though he was not a model employee. His employer terminated his services on a number of occasions but then re-employed him. One of the problems was that Mr Al-Harazi used to leave his employment before the end of his shifts.
On 16 March 2015, however, Mr Al-Harazi decided to go home early, saying that he had urgent business to attend to, though there did not appear from the evidence to be any matter of urgency that required him to return home. As a result, his employer threatened that, if he did leave, he would terminate his employment, indicating that this termination would be final.
Nevertheless, Mr Al-Harazi did leave. That night, he and his wife signed a document, probably a rental rebate document, which Mr Al-Harazi understood to be a document committing them to remain in their Gordon home for another 12 months.
Later that night a further fight developed between Mr Al-Harazi and Ms Al-Mdwali from about 9:00pm, though there was some uncertainty in the evidence about the precise time. It lasted, however, until Ms Al-Mdwali's death. It involved shouting which was again heard by neighbours, though there were differences in the accounts of the nature and timing of the sounds heard by the neighbours who gave evidence of what they heard. I am satisfied beyond reasonable doubt, however, that there was a loud and angry fight between the couple which involved at least one of them shouting, which was loud enough to be heard by neighbours.
It appears that, at some stage, Ms Al-Mdwali was breastfeeding Kareem, when she was attacked by Mr Al-Harazi, who had armed himself with a knife and entered the master bedroom where mother and baby were. Mr Al-Harazi stabbed Ms Al-Mdwali about 20 times as she sat on the bed. It appears she rolled forward and he stabbed her a further 30 or more times in the back while she lay motionless.
There was a dispute about the actual mechanism of the attack and, in particular, where Kareem was when Ms Al-Mdwali was stabbed. The Crown says that she was actually breastfeeding the child when Mr Al-Harazi initially stabbed her. Mr Al-Harazi says that I cannot make such a finding. Mr Al-Harazi also challenged a suggestion of the Crown that, when stabbed, Ms Al-Mdwali rolled over to protect Kareem.
A summary of the relevant evidence is as follows. The police crime scene examiners, who attended the scene, found Ms Al-Mdwali with her left breast exposed, and said that:
It appeared that the singlet and the cup of the bra had been placed beneath the breast in a somewhat deliberate action. It didn't appear that the breast was exposed as a result of the struggle, but again that's an assumption ... The bra was on quite firmly.
I had a photograph of the position of the breast and the bra. The conclusion of the police crime examiner was that “it would be reasonable to think that perhaps
[Ms Al-Mdwali] had breastfed recently prior to the incident”. This evidence was not challenged in cross-examination.
There was also evidence of a forensic biologist who had expertise in blood spatter analysis. She identified bloodstains on the Grobag which Kareem was wearing at the time. There were impact stains, transfer stains and possibly saturation stains. A transfer stain occurs when an object with blood on it comes into contact with a surface on which the stain is located. An impact stain occurs when a blood droplet is in motion, such as dripping, and impacts on the relevant surface. A saturation stain occurs when the surface has been soaked from a droplet being on the outside of the fabric and is drawn inside.
There were bloodstains on the front and back of the Grobag, which suggested to the witness that the Grobag was being moved or something was moving it in the actual environment where the blood shedding event was occurring. That, however, she said, could potentially include the baby being in it, squirming around.
The impact stains were consistent with blood being projected off a knife and onto the Grobag.
Because of the size and nature of the stains, the witness agreed that it was likely that the Grobag was reasonably close to the blood shedding event. That, she later said, was “[w]ithin close proximity, within that room somewhere”.
There was some cross-examination of the expert witness about her bloodstain evidence, and some challenges to the methodology. There was, however, no challenge to her finding that the Grobag must have been close to the source of the bloodletting. There was some challenge to the pattern and the meaning of the pattern. I do not consider that this affected the evidence of proximity.
There was also a statement to police by Mr Al-Harazi himself that Kareem was at the age and stage where he was being breastfed.
I have carefully considered this evidence. I cannot say beyond reasonable doubt that Kareem was actually being breastfed, that he was at his mother's breast, at the time the stabbing occurred. Given the state of undress, however, combined with the blood spatter evidence, it is clear to me beyond reasonable doubt that Kareem had, at the very least, just been fed and Ms Al-Mdwali had, if she had finished breastfeeding, not had time or been able to re-adjust her clothing before being stabbed.
It does not seem to me that it would have been much more serious if Ms Al-Mdwali had actually been feeding Kareem when she was stabbed than if she had just finished, but had not been able to re-adjust her clothing. Either scenario leaves the offence still one of great seriousness and evokes reasonable revulsion.
That there were a very large number of stab wounds is also serious. I was not able to find from the evidence, when, in the course of this brutal attack, Ms Al-Mdwali died. It seems to me from the evidence, however, that it is beyond reasonable doubt that she would have been stabbed a number of times while still alive, but many more, including those on her back, after she had died.
The continued stabbing while alive is a serious matter because of the pain and terror this would have caused Ms Al-Mdwali until she lost consciousness and ultimately her life.
Both Akram and Maysa awoke some time after their mother had been killed and saw blood on Mr Al-Harazi's shirt. Maysa saw him with a knife. He sent both children downstairs while he tried to work out a plan. Mr Al-Harazi decided to invent a story about his father-in-law and brother-in-law visiting the house and demanding money from his wife. He had had, in the past, aggressive interactions with both of them. He then messed up the bedrooms to appear as though his father-in-law and brother-in-law had been searching for money.
The Crown asserted that he then put his passport in the car contending that
Mr Al-Harazi hoped that he could, after reporting the incident to police, travel to Yemen. I am not satisfied that this is so. Mr Al Harazi had earlier had to obtain a new driver licence after his driver licence had been handed in and it seems likely to me that he may have required his passport for that purpose. It seems to me, also, inherently unlikely that he would have had the means to return to Yemen immediately or even believed that he would have. While the passport included Akram and Maysa on it, the youngest child, Kareem, was not included on his passport and it would have taken some time to arrange travel documents for Kareem to travel as well. I accept, however, that the passport was in the car.
Nevertheless, he went with his three children to the police station where he indicated to police that his wife was in trouble, making stabbing motions to them to show how she had been attacked. He told police that night that he did not want to live in Australia anymore and wished to take his children to Yemen.
He had earlier told Akram to tell police the invented story that Mr Al-Harazi's
father-in-law and brother-in-law had visited the house demanding money from
Ms Al-Mdwali and that the family had been sent away while Mr Al-Harazi's father-in-law and brother-in-law remained in the house. Akram did so.
Having heard this, police immediately attended at the Gordon home and found
Ms Al-Mdwali stabbed to death.
Because of what Mr Al-Harazi and Akram had told the police about the events of the evening, police later that morning arrested both Mr Al-Harazi's father-in-law and brother-in-law as I have noted above (at [2]). After further investigation, it became clear to police that they did not commit the killing and they were released. As also noted above (at [3]), Mr Al-Harazi was later himself arrested and charged with the murder of his wife.
The offence
The offence of murder is the most serious of all offences in the criminal calendar; the law has always recognised that the preservation of human life is a very important value in our community.
As well as being a very serious offence, murder is also a tragedy for those who have lost a loved one and the community is seriously diminished by such violence.
There were a number of aggravating aspects of the offence here. In the first place, as noted above (at [39]), Ms Al-Mdwali was, or at least, had just finished, breastfeeding her youngest child. She was clearly vulnerable and the community would be rightly horrified by the infliction of lethal violence at such a time.
This also meant that Ms Al-Mdwali was a vulnerable victim. It can hardly be considered that, in the circumstances, where she was partially naked with her suckled child at least nearby, that she would not be so described.
Further, the attack came in her own home and indeed, in her bedroom, where she was entitled to feel safe. As such, it was also an extreme example of family violence which, as noted in cases such as R v Hamid [2006] NSWCCA 302; 164 A Crim R 179, is a matter calling for punishment which includes general and specific deterrence. Women in a domestic situation are entitled to the full protection of the law and crimes of violence must be treated with real seriousness. See Edigarov [2001] NSWCCA 436; 125 A Crim R 551 at 558; [41].
It is also relevant that, while the baby Kareem could not reasonably have been aware of what was happening because of his age, there were older children in the house. That alone would not seriously aggravate the offence, for they were asleep, although it does aggravate the offence because of their presence there nevertheless. The daughter, Maysa, however, did wake up and saw Mr Al-Harazi with a knife in his hand. Though the evidence does not enable me to find to the requisite degree of proof that she saw any stabbing, I do find that she was present in the circumstances as described and that is relevant to the seriousness of the offence.
The crime was, however, not a premeditated one. There is no evidence on which I could be satisfied of this beyond reasonable doubt.
Similarly, there were not present the other factors such as those set out in Vojneski v The Queen [2016] ACTCA 57 at [120], which otherwise would increase the objective seriousness of the offence.
The attack was ferocious, sustained and extensive. There were at least 57 wounds, but some were made by the knife exiting the body after it had entered, causing a wound at both its entry and exit. There were wounds in the head, neck, shoulder, chest, stomach, both wrists and hands, and back. At least two wounds were of a depth of up to 10 centimetres; a number were of a depth of 5.5 to 6.5 centimetres. They were deep wounds made by force. The wounds on the back seem to have been inflicted after Ms Al-Mdwali had at least lost consciousness, or possibly had died, for they were clustered together in a similar place which was said generally to be a feature implying little movement in the victim at the time they were inflicted.
The wounds caused blood to collect in both chest cavities and there was extensive retroperitoneal haemorrhage. The descending aorta was injured by a stab wound as was the common iliac artery. A number of other internal organs had been injured also, including the left kidney, the bowel and the liver. The lungs had collapsed.
The cause of death was found by the forensic pathologist to be multiple stab wounds. As I indicated earlier, it is not possible to say exactly when during the attack
Ms Al-Mdwali died but I am able to find, beyond reasonable doubt, that it was not from the first few wounds, and that she must have suffered pain and terror during the attack until she lost consciousness and ultimately her life.
Given that numerous stab wounds were inflicted, many of which were to the chest area and of a depth to injure internal organs, it seems to me beyond reasonable doubt that Mr Al-Harazi intended to kill Ms Al-Mdwali. That intention is, of course, a significantly aggravating factor.
Victim impact statements
I received Victim Impact Statements from Ms Al-Mdwali's mother, father, two sisters, one brother, and on behalf of her children. They were read in Court and, where in Arabic, translated by the interpreter retained for the proceedings or by a member of Legal Aid ACT, solicitors for Mr Al-Harazi, so that he heard and could understand them and the intense pain and other injury suffered by these victims of his crime.
As is to be expected, they showed with devastating clarity the tragedy that the death had brought to the family which, the evidence had shown, was a close knit one.
The Victim Impact Statements were, understandably, emotional, and showed the depth of the loss that each author had felt at the passing of their loved daughter, sister and mother.
Unfortunately, some of the Statements strayed beyond the proper limits of such statements. It is difficult in a situation of such heightened emotion for a victim to be restrained and it is hard for them not to express anger at Mr Al-Harazi. Courts do, properly, extend some reasonable flexibility to what in other circumstances would be strictly irrelevant material that is inadmissible, even within the generous limits extended to such statements by the legislation.
For obvious reasons, defence counsel are generally unwilling to intervene too much in such circumstances, for that can inevitably risk adverse reflection on the accused. Thus, the Court must be astute to ensure that reasonable bounds are not exceeded, for this will risk the validity and the value of such reports. I have warned about this before R v Schmidt [2013] ACTSC 295 at [74], where I urged those assisting victims to preparing such reports to pay close attention to the legislation and ensure compliance with it. My concerns were echoed by Burns J in R v Iacuone (No 2) [2014] ACTSC 149; 286 FLR 217 at [25].
As a result, I directed that a paragraph of one Statement be rejected. Others also came close to require such intervention. It is not appropriate for such statements to include requests or suggestions to the judge or magistrate as to the sentence to be imposed, or how sentencing be approached. Some attention should be given by the Crown to preserve the value of the statements by advising those who prepare them, and those who assist in their preparation, about the proper limits of the contents of such reports.
Nevertheless, they played a proper part in the sentencing, showing the harm suffered by the victims from the crime.
Perhaps most affecting was the Victim Impact Statement made on behalf of the children of Ms Al-Mdwali and Mr Al-Harazi. By the murder, they have effectively now been deprived of both their parents and they will have to live with the knowledge of the awful act done by their father to their mother.
It is fortunate that they have a very supportive family and their grandparents, with whom they had significant prior contact, having been caring for them, but it is clear that this is still less than either the children or their grandparents would wish for their lives.
The Statement showed the serious effects that the crime had on the children, trying to make sense of what had happened and to deal with how they feel and what others say to them. It has adversely affected their school work and their relationships.
What the future is, it is difficult to know, but undoubtedly it will affect them for the rest of their lives. It is to be hoped that they may have access to professional support to allow them to deal effectively with these problems.
The Victim Impact Statements of the other members of the family show how they have been desolated by the loss of their precious daughter and sister. It has seriously impacted on their emotional and psychological states of mind.
It appears that it was all the more hurtful for they had tried to welcome Mr Al-Harazi in to their family, though it was clear that this had not been easy. They continue to grieve.
Ms Al-Mdwali was described as loving, innocent, full of life and energy, kind and friendly, helping others who needed it.
Particularly hurtful to a number of the makers of the Statements was the allegation that Mr Al-Harazi made that Ms Al-Mdwali’s father and brother had themselves killed her. Indeed, as noted by the Crown, the first that Ms Al-Mdwali’s father and brother learnt of her death was when police arrested them for that murder, which must have been an extraordinarily terrifying and difficult situation.
The effects on the parents of Ms Al-Mdwali included, as well as the anger and sadness, severe stress which, for her father, contributed to heart problems for which he had to undergo an operation. For both of them the stress of becoming effectively the father and mother for the young children was also a challenge which they clearly had not expected and for which they had not been prepared.
For her brothers and sisters, the loss of their sister led to a range of problems including disruption to studies and social life, loss of trust, fear of others as well as the grief, emotional trauma and great loss they had all suffered.
It is clear that Ms Al-Mdwali was part of a loving family whose members have a strong memory of a beloved daughter and sister and whose loss in this dreadful manner is a source of great sorrow and grief.
I hope that the pain of her death and the memory of the circumstances of it will soften over time, though it will never completely go away.
No sentence, whatever its length, can ever make up for the loss the family of
Ms Al-Mdwali have suffered. I acknowledge that grief and distress and I express on the behalf of the community its sympathy and compassion for them.
I take all these Victim Impact Statements into account in the way permitted by law as explained in R v BI (No 4) [2017] ACTSC 71 at [73]-[81]. See also R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at 115; [63] and R v Eisenach [2011] ACTCA 2 at [64].
Subjective circumstances
As noted above (at [10]), Mr Al-Harazi was born in Sana’a, Yemen, one of 13 children to his parents. He is now 36 years old. Apart from his children, who have not seen him once since his arrest, he has no family of his own in Australia.
He attended a religious school in Yemen from age seven to 19 years old. He enjoyed school, had friends and was not bullied nor experienced any disciplinary problems.
After leaving school he worked in his father’s hardware store for about seven years, in sales, stock management and as a cashier. When his father retired, because of eye problems, Mr Al-Harazi and a brother took over the ownership and conduct of the business. When Mr Al-Harazi migrated to Australia sometime after his marriage, he gave up ownership of the business.
As noted above also (at [11]), he married Ms Al-Mdwali in 2005. It was an arranged marriage in accordance with their religious customs and tradition. By that time, her father had migrated to Australia in 2001 and Mr Al-Harazi did not meet him until he moved to Australia in 2008. He met her mother and other members of her family however, as they had initially remained in Yemen, but they left to join Ms Al-Mdwali’s father in 2007. Ms Al-Mdwali and her sister, Nawal Al-Mdwali, who had both married, went to Australia with their family, leaving their husbands behind.
The two sisters returned to Yemen the next year, however, and then went back to Australia with their husbands. The two couples and Akram lived with Ms Al-Mdwali’s parents initially in Gowrie. Mr Al-Harazi obtained employment as a cleaner and beverage worker in the Embassy of the Kingdom of Saudi Arabia within four days of his arrival.
After about three months, the two young families moved out of the home in Gowrie to a house they shared in Monash. Although Ms Al-Mdwali’s sister and her husband later moved to another house in the same suburb, she and Mr Al-Harazi remained there until they returned to Yemen. Mr Al-Harazi wanted to return to Yemen because, he said, he was “hearing things from God” and began to “hate” living in Australia. He said in evidence to me, that he felt “choked” and “uncomfortable”, “homesick, fearing for [his] people ... boredom, loneliness and homesickness”. He decided that the family would return to Yemen. His wife did not initially agree, but “eventually” approved. The family, now including Maysa, born in Australia, returned to Yemen in 2011.
Mr Al-Harazi seems never to have particularly wanted to live in Australia. In his evidence to me, he described himself as “thrilled” and “not thrilled” about coming to Australia in 2008. He explained that he was thrilled because he was going to be with his wife and child but not thrilled because he was leaving his work, his country, his friends and his family. He said that he did not consider there were any positive aspects of being in Australia.
On the family’s return to Yemen, they found that Mr Al-Harazi’s brother had sold the hardware store, so Mr Al-Harazi had to find other employment and worked as a security guard in a department store.
He was poorly paid and the family could not afford good accommodation. Ms Al-Mdwali told her eldest sister that they had to live as a family in one room of Mr Al-Harazi’s father’s house, although Mr Al-Harazi described it as an apartment.
Ms Al-Mdwali found the conditions in Yemen unsatisfactory. She also missed her parents and siblings, with whom, as I have described, she was close. She felt it was the right time to return to Australia.
Despite his views of Australia, Mr Al-Harazi visited Australia on three occasions while the family were in Yemen. He travelled on his own and stayed for periods of a few weeks up to a month. He went on the first occasion to Canberra, the second to Sydney, and the third to Sydney and Melbourne. It is not entirely clear to me why he returned but he said that, every time, he did not feel comfortable and returned to Yemen. It appears he may have been looking for work.
In 2014, when Ms Al-Mdwali was pregnant with Kareem, her parents travelled to Malaysia and she left Yemen to see them. The children remained behind with
Mr Al-Harazi. When she got to Malaysia, she called Mr Al-Harazi and told him that she was not willing to return to Yemen and begged him to join her in Malaysia and then travel on to Australia. He initially agreed to meet her in Malaysia after she had threatened that she would not return to Yemen.
When in Malaysia, they decided to go to Australia. Mr Al-Harazi thought that this was to be a temporary arrangement so that his wife could spend time with her parents. The family returned with Ms Al-Mdwali’s sister and her brother-in-law to Australia in late February 2014. The parents remained in Malaysia for a time. The family initially lived again in the Gowrie house but in May moved in to public housing in Gordon.
Initially, Mr Al-Harazi again worked as a cleaner for about four months and then stayed at home for about two months to help with the baby, Kareem. He later obtained work at the Turkish restaurant in about mid-February 2015, after a number of attempts to obtain work there. He was given a trial as a baker but did not have the experience and so was then employed as a meat shaver and performed other tasks.
As noted above (at [25), he would often leave work early. He was described by his employer in evidence as “unreliable”. He was “let go a couple of times” but was “consistent” in coming back to work and his employer would re-employ him until finally, on 16 March 2015, he was permanently dismissed as I have earlier described (at [26]).
Mr Al-Harazi has a short criminal history. He was convicted and fined for three traffic offences committed on 27 December 2010, though one included driving a motor vehicle bearing number plates calculated to deceive.
Further, he has been found guilty of recklessly damaging property. The facts were as follows. On 16 March 2010, while the family were living at Monash, Mr Al-Harazi's brother-in-law arrived at the residence following a call from Ms Al-Mdwali. She had asked him to come over to the house to take her and the children away because she was fighting with Mr Al-Harazi. This led to an altercation between Mr Al-Harazi and his brother-in-law after Ms Al-Mdwali had got into her brother's car intending to go to her parent's place.
In the course of the altercation, Mr Al-Harazi picked up a rock and threw it through the rear window of his brother-in-law's car. He was charged with recklessly causing damage. On the basis that, at sentencing, it was put that the couple had reconciled and had promised each other that they would not argue like this again, that Mr Al-Harazi expressed his remorse, paying for the broken window, and on the promise that it would not be repeated, the learned Magistrate proceeded under s 17 of the Crimes (Sentencing) Act 2005 (ACT), making a non-conviction order and a 12 month Good Behaviour Order with no conditions additional to the core conditions set out in s 86 of the Crimes (Sentence Administration) Act 2005 (ACT).
In my view, the traffic convictions are not relevant to the sentence I must impose. A finding of guilt of the offence of recklessly damaging property is somewhat relevant as it adds to the incidents on which the Crown relied in setting the context for the marital relationship and discord between Mr Al-Harazi and Ms Al-Mdwali. It is not particularly aggravating, although it is to be noted that his promise to the learned Magistrate did not last and this has some, perhaps, minimal relevance.
Mental matters
Mr Al-Harazi's mental state is a matter of concern. I originally found that a question arose as to Mr Al-Harazi's fitness plead and I reserved the question for consideration: R v Al-Harazi (No 3) [2016] ACTSC 290.
Mr Al-Harazi's legal representatives obtained at psychiatric report from Dr Steven Allnutt, a distinguished Forensic Psychiatrist, and Dr Abdulatif Burhan, an
Arabic-speaking General Adult Psychiatrist. The Crown retained Professor David Greenberg, also a distinguished Psychiatrist.
On the basis of their reports, I found Mr Al-Harazi was fit to plead and, as a result, the trial proceeded. See R v Al-Harazi (No 5) [2017] ACTSC 61.
The issue for the psychiatrists which each addressed in the report each prepared, was, of course, whether Mr Al-Harazi was fit to plead. In the course of doing so, however, each addressed the issue of whether Mr Al-Harazi was mentally impaired. There was some uncertainty and disagreement about that.
On sentencing, limited material was available. The Crown tendered, on sentencing, the report of Professor Greenberg.
Mr Al-Harazi called oral evidence from Ms Ahu Kocak, an officer of ACT Corrective Services, and tendered the original and a further report of Dr Burhan, and the report of Mr Al-Harazi's general practitioner, Dr Helmy.
For completeness, the Crown tendered a copy of the most recent instructions to Dr Burhan, being an email to him from Mr Al-Harazi's Legal Aid lawyer, and a letter from Dr Burhan commenting on the reports of Dr Allnutt and Professor Greenberg.
On sentencing, Mr Al-Harazi himself also gave evidence. His evidence-in-chief was, for the most part, an address to me on matters said to be relevant to sentence.
I do not need to summarise all that he said. It was a long story said to have been revealed to him by his God, Allah, while he was on remand, apparently in the last three months. The revelation was said to have included a prophecy of his coming and an injunction for him to talk to people about what God had ordered him to do. He said that his God had said that he must be released from prison to teach people what he had been directed.
He said initially that Ms Al-Mdwali was not a criminal, but described himself as a hero and that his God would avenge all that had been done to him. He said that the vision included a revelation that Ms Al-Mdwali had been in an extra-marital relationship and so had betrayed him. There were other parts to this story, but they do not seem relevant and I do not need to summarise them.
In cross-examination, he confirmed the evidence he had given at trial that his
father-in-law and brother-in-law had killed Ms Al-Mdwali and then suggested, despite his earlier statement, that she was a criminal and that his God had punished her as she deserved, so he was told. He also said that his God would take revenge against her parents also.
It was strange evidence but does show a lack of remorse or, indeed, insight into the events the subject of the charge of which he has been found guilty.
As noted above (at [103]), Mr Al-Harazi has been found fit to plead. That means that there is no question on account of his mental condition as to the validity of the finding by the jury that he was guilty of the charge of murder.
While this evidence could be said to raise an issue as to Mr Al-Harazi's mental state, it is a difficult area. The mere assertion of communication with a God is not uncommon; many religious people assert that they have had such an experience and, of itself, it cannot be a mark of pathology.
In this case, however, there are elements of disconnect with reality in what he had to say that suggests some mental impairment or delusion. That it comes after the finding guilt, however, seems to me that it means that the regime under the Crimes Act, Div 13.2, relating to fitness to plead, does not apply. Given the matters set out in s 311, it seems to me that, once a verdict has been entered, these provisions no longer apply. I have not heard full submissions on the issue, however, but neither party submitted that, in the light of the evidence Mr Al-Harazi gave, a question arose which needed to be dealt with in this way.
I have been unable to find any authority on the issue, but my view is supported by decisions in R v His Honour Judge Rapke; Ex parte Curtis [1975] VR 641 and R v Pace [2008] NSWCCA 233.
That does not mean, of course, that Mr Al-Harazi's mental condition is not relevant to the sentence I must impose. That is not so. As pointed out by the Court of Appeal in Millard v The Queen [2016] ACTCA 14 at [29]-[35], the mental condition of an offender must be carefully considered in the process of sentencing. The severity of the sentence depends on all the circumstances.
Thus, the relevance of mental impairment has been summarised by the Victorian Court of Appeal in R v Verdins [2007] VSCA 102; 16 VR 269 at 276; [32], as follows:
32.Impaired mental functioning, whether temporary or permanent (the condition), is relevant to sentence in at least the following six ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both (Payne at 444, [43]).
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
In New South Wales the relevant principles were summarised by McClellan CJ at CL, with whom Simpson J and Barr AJ agreed, in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177] in the following way:
Where an offender is suffering from a mental illness, intellectual handicap or other mental problems, the courts have developed principles to be applied when sentencing. They can be summarised in the following manner.
·Where the state of a person's mental health contributes to the commission of the offence in a material way the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.
·It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.
·It may mean that a custodial sentence may weigh more heavily on the person because the sentence will be more onerous for that person. The length of the prison term or conditions under which it is served may be reduced.
·It may reduce or eliminate the significance of specific deterrence.
·Conversely, it may be that because of a person's mental illness they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an antisocial personality disorder, there may be a particular need to give consideration to the protection of the public.
(citations omitted)
The question of Mr Al-Harazi's mental condition became a contested issue at sentencing.
As a result, it is necessary for me to set out a summary of the evidence in some detail.
Dr Burhan's initial report was principally directed to the question of whether or not Mr Al-Harazi was fit to plead. Dr Burhan an Arab-speaking Consultant Psychiatrist and Director of Shellharbour Psychological Medicine. He held training psychiatry positions in New Zealand in, amongst other areas, General Adult Psychiatry and Forensic Psychiatry. He was a Medical Officer in Yemen from 1994 to 1996. He is a Fellow of the Royal Australian and New Zealand College of Psychiatry.
For his first report, he interviewed Mr Al-Harazi at the Alexander Maconochie Centre for two and a half hours. He had material from ACT Health which he read thoroughly. Unfortunately, that material was not further identified though from comments in the report, it may have been or included records from the Alexander Maconochie Centre.
Dr Burhan recorded a history of psychosis and depression for the last five years, though he was unaware of any formal diagnosis. The health records mentioned that Mr Al-Harazi had seen a Psychiatrist in Yemen for psychosis and, despite
Mr Al-Harazi’s denial, that there was a family history of mental illness.
Dr Burhan set out the details of his examination and concluded that Mr Al-Harazi had a chronic or recurrent mental illness, mainly episodic in nature. He diagnosed a Schizoaffective Disorder due to the presence of both mood and psychotic symptoms including the latter in the absence of the former and their presence for substantial periods. He was of the opinion that, in September 2016, Mr Al-Harazi was suffering from persistent psychotic symptoms and mild depression.
For his most recent report, Dr Burhan reviewed some transcript material from the trial, including the evidence Mr Al-Harazi gave on sentencing, much of which I have summarised above (at [109]-[111]), the reports of the other psychiatrists, Dr Helmy's report and some other material.
He interviewed Mr Al-Harazi again, but by video-link, on 30 June 2017. He clearly stated that this further examination was conducted in view of a suspicion that his mental state was abnormal; indeed, the email of instructions stated that Mr Al-Harazi's lawyers “believe that [he] is unwell at this point”. I do not consider that this would have affected Dr Burhan's ability to make a fair and objective assessment.
Mr Al-Harazi was, at the time of this examination, in some state of agitation at first, but he did settle down. He expressed dissatisfaction with Dr Burhan's earlier report because he said that Dr Burhan had wrongly considered him to be insane.
Mr Al-Harazi told him that he was telling the truth but then repeated what Dr Burhan described as “the same delusions [sic] themes he told me before” which appeared to be similar to the evidence before me.
Dr Burhan detailed the examination and concluded that he believed that “Mr Al-Harazi beyond any doubt suffers from psychotic illness.” He now favoured a Bipolar Affective Disorder but could not dismiss Schizoaffective Disorder. He was also concerned about his treatment.
In his letter, commenting upon the reports of the other psychiatrists, Dr Burhan agreed that the diagnosis was “not straightforward…” and that it was complicated by “many cultural, religious and personal factors…” He re-asserted that the psychotic symptoms were severe enough to require treatment “regardless if this is psychotic depression, or bipolar with psychosis, or schizophrenia/schizoaffective disorder, or psychosis secondary to other illness such as traumatic brain injury.”
Dr Helmy, Mr Al-Harazi's general practitioner, had seen him for some limited contact during 2011 and 2012. Mr Al-Harazi's wife and sisters saw Dr Helmy in March 2014, asking him to prepare a letter of support for an application for priority housing for
Mr Al-Harazi and his family. They described to Dr Helmy the symptoms they had observed of Mr Al-Harazi, both in Yemen and Australia, and expressed great concern about his mental health. The behaviour described was, to Dr Helmy, consistent with schizophrenia with grandiose report and paranoid features on presentation that were not rational. He decided to adjust his medication. He signed the letter, which suggested that Mr Al-Harazi was suffering from schizophrenia.
From June 2014, Dr Helmy prescribed Diazepam, an anti-anxiety drug, and Lexapro, an anti-depressant drug. By October 2014, he was prescribing Seroquel, an
anti-psychotic drug, as well.
Attached to Dr Helmy's report was a hand-written report from Dr Mahfud Alkholaidi MD, PhD, described as a Consultant of Psychiatry, Neurology and Epilepsy of the
Neuro-Psychiatric Centre, apparently in Sana’a, Yemen. Dr Alkholaidi said that he treated Mr Al-Harazi in April 2012 for schizophrenia, prescribing Risperdal, an
anti-psychotic drug, and Seroquel. In June, Mr Al-Harazi returned and his health was better.
This report was originally the subject of objection by the Crown. It was said not to be a diagnosis and that the person who made it had not set out the criteria against which the illness was said to be diagnosed. That the prescriptions were for anti-psychotic drugs only meant, it was submitted, that there would seem to be psychosis which has a number of causes and may be just limited.
Were this report subject to tests for admissibility such as those required by the decision of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705, then its admissibility could be significantly problematic.
No request had been made that the provisions of the Evidence Act 2011 (ACT) apply to the proceedings, however, so those provisions of that Act do not apply to the sentencing proceedings: s 4(2). It appears, however, that the common law then applies: R v Bourchas [2002] NSWCCA 373; 133 A Crim R 413 at 428; [61].
This was, of course, sentencing following a trial. Dowd J in R v Lewis (Unreported, NSWSC, Dowd J, 25 October 1996), has held that, where sentencing follows a trial, the provisions of the Evidence Act should apply. I respectfully disagree. The Act seems to me quite clear that, unless the court directs that it does, the Act does not apply. In any event, there is generally not a rigorous adherence to the law of evidence in sentencing proceedings as the High Court noted in Weininger v The Queen [2003] HCA 14; 212 CLR 629 at 637; [21].
The weight to be given in the report is another matter but the objection was withdrawn and the report admitted.
Ms Kocak gave oral evidence. It was not clear, but it appears from what was said in cross-examination that she was a psychologist. I did not have any other details about her qualifications. She was a Senior Manager of ACT Corrective Services for the Corrections Psychological and Support Services. She speaks basic Arabic.
She assisted with the procedure for admission of Mr Al-Harazi into the Alexander Maconochie Centre. He was first housed in the Crisis Support Unit for about three months, during which time, she saw him nearly every day, presumably every working day. She found that he had great difficulty in adjusting to the prison environment and also transitioning into different residential environments within it.
His adjustment was significantly hampered by his lack of English, but his behaviour also made him socially isolated, which was an additional difficulty. Other detainees considered that he was mentally impaired. They called him “crazy”, particularly from his behaviour, which included shouting at night, talking to himself and the promotion of the ideas or delusions, including his strong belief that he would soon be released and able to return to Yemen with his children. He was not well liked by other detainees and even Arabic-speaking detainees, paired with him to help overcome the language barrier and to teach him some English, would in time tire of his company and his behaviour and shun him.
He had no visitors, though he was visited by a Muslim Imam as part of the chaplaincy arrangements in the prison.
His time in prison would be, Ms Kocak said, definitely more difficult than would be experienced by other prisoners. His access to employment and rehabilitation programs was very limited, if not impossible, given his poor English skills and the difficulties in having that improved. Ms Kocak did accept, however, that he was improving in his English language facility, though, with his depression, his motivation was lacking. He was adjusting, she said, to prison life but it was uniquely slow.
Ms Kocak asserted that she was qualified to diagnose mental impairment, though the details of her qualifications were, as I have said, not explored by either counsel and I was left without any clarity around that. Her opinion, however, was that he suffered from a mental illness; he was resistant to any support, or assistance from mental health workers in the prison.
Professor Greenberg is a formally trained Forensic Psychiatrist in private practice but is also a Clinical Director of the New South Wales Court and Community Liaison Service which operates in 21 courts throughout the State. He is also Professor of Psychiatry with a conjunct appointment at the University of New South Wales and is a past Professor of Psychiatry at the University of Western Australia. He is a Fellow of the Royal Australian and New Zealand College of Psychiatrists, a Fellow of the Royal College of Physicians and Surgeons in Canada, and a Fellow of the Faculty of Psychiatry of the College of Medicine in South Africa.
Professor Greenberg saw Mr Al-Harazi twice in November and December 2016 in the Alexander Maconochie Centre. In his Report, Professor Greenberg detailed
Mr Al-Harazi’s past psychiatric history, including, from 2010, complaints of hearing voices and claims of revelations from God. He referred to Mr Al-Harazi attending
Dr Alkholaidi in Yemen where, he was told, he had a problem. He noted that, since being in custody, he had stated that God was still talking to him. He had been seen by a number of medical practitioners in Canberra prior to his incarceration.
Professor Greenberg also spent some time summarising the medical records from the Alexander Maconochie Centre. This was an extensive record of interactions by
Mr Al-Harazi with mental health workers and, of course, was the most recent assessment of his mental condition.
He noted that, on admission, Mr Al-Harazi denied psychotic symptoms. He reported being treated by Dr Helmy for depression and prescribed Lexapro. The records were obtained from Dr Helmy and the diagnosis of “depressive anxiety disorder” noted with the Lexapro prescription. It is not clear whether the records failed to show the reference I found in the notes of paranoid ideas and the prescription of Seroquel, but Professor Greenberg did not mention this.
He noted that, on the next six occasions he was seen by a psychologist, whom I infer did not speak Arabic, he denied any psychosis but, on one occasion, said that he heard the voices of a Sheik as a soft call to prayer.
When, on consultation with an Arabic-speaking psychologist, he was diagnosed as being “an established psychotic illness” and that he was “currently psychotic”.
The next consultation was with a non-Arabic speaking psychologist who recorded that Mr Al-Harazi heard voices at night but this was said to be “trauma related or hypnagogic in nature”, although it is not clear on what basis that diagnosis was made.
Mr Al-Harazi was later examined by another Arabic-speaking psychologist who reported that he had “a propensity to experience stress related hallucinations”.
Dr Anthony Barker, psychiatrist, examined him and raised a question of whether he had been exaggerating his symptoms and possibly malingering.
In July to September 2015, he was examined a number of times with no evidence of a mood disorder or psychotic phenomenon.
By 17 September 2015, however, he was taking anti-depressant medication, presumably properly prescribed, and was examined by another non-Arabic speaking psychiatrist, Dr John Kasinathan, who concluded that there was no mental illness or definitely no psychotic disorder. There was no evidence of paranoid psychosis.
In December 2015, Mr Al-Harazi felt that he was in difficulty and was examined by an Arabic-speaking psychologist again, who concluded that his mental health had deteriorated. A later examination by a psychiatrist, Dr Owen Samuels, found no evidence of any psychotic illness, or any persecutory delusions or perceptual abnormalities.
By January 2016, however, his behaviour was causing concern following an altercation with a cellmate, but it was suggested by the examining psychologist to be “more likely to have resulted from interpersonal difficulties stemming from his personality structure, in the presence of executing psychological stresses.”
Mr Al-Harazi was later seen again by a psychiatrist who found no evidence of psychosis but there was some evidence of complaint made for secondary gain.
Despite no evidence of psychiatric illness in February 2016, some concern was expressed in March and again by May. Dr Samuels, who had previously examined him on a number of occasions, found him quite different from previous assessments with “obvious seemingly psychotic symptomology.” He was prescribed anti-psychotic medication Olanzapine.
A further examination by a psychologist showed no formal thought disorder or perceptual disturbance but, four days later, Dr Samuels noted that he had grandiose delusions and prescribed another anti-psychotic medication. Mr Al-Harazi later ceased taking the medication and mental health team members noted he reported delusional beliefs and auditory hallucinations.
In June 2016, Dr Samuels reviewed Mr Al-Harazi and noted symptoms suggestive of a psychotic illness, so he was admitted to The Canberra Hospital and assessed repeatedly by a non-Arabic speaking psychiatrist. No psychiatric illness was found.
Professor Greenberg then noted a number of recordings of telephone calls that
Mr Al-Harazi had made with members of his family in Yemen.
Professor Greenberg’s conclusions were detailed and complicated, though apparently simple. Thus, he expressed the view that “on balance”, and I emphasise that qualification which must import, perhaps inevitably, a degree of uncertainty, that
“Mr Al-Harazi is not at this time [namely 11 January 2017] suffering from an acute psychotic disorder”.
He did, however, make other relevant findings, namely, that:
· There was some correlation between his claims of psychosis and an apparent placement in a preferred location in custody, though there was, in that finding by Professor Greenberg, no reference to the prescription of anti-psychotic medication on a number of occasions and a correlation with that and the improvement in symptoms which he did seem to have shown, to a degree, in the reports, summarised by Professor Greenberg and in other material before me.
· His claims of psychotic symptoms are “largely related to his personal and situational stresses and environmental processes”. That, of course, supports his diagnosis but does not mean that the prison and his incarceration which he believes is unjustified, has apparently, it appears Professor Greenberg accepts, led to some psychosis.
·There is a strong cultural and religious component to his presentation and perhaps related personality problems.
·Mr Al-Harazi had a history of anxiety and depression which preceded the present offence.
·Mr Al-Harazi had significant adjustment problems in the custodial environment.
·His reporting of psychotic symptoms may not be malingering but may be factitious, though again, this is a provisional diagnosis in that description.
Professor Greenberg stated that the change in the nature of Mr Al-Harazi’s symptoms and the change in the apparent delusions is more likely to be related to psycho-social stresses and his legal problems than from a serious psychotic illness. While that has some resonance in what I have observed, the reference to his legal problems is problematic, for Mr Al-Harazi did not see them as problems; he was crystal clear that he would be found not guilty and soon be on his way to Yemen with his children.
Further, the psychotic problems were observed, though for the most part by
non-experts, prior to his incarceration, and led to at least two medical practitioners prescribing anti-psychotic medication for him. I cannot assume that they did so carelessly or inappropriately.
This is a difficult problem and I am not satisfied that Mr Al-Harazi is suffering at the moment from a serious psychotic illness. That, however, is the beginning of the consideration, not the end of it.
On a number of occasions, as I have indicated, medical practitioners have prescribed him anti-psychotic medication at least since 2012 and certainly prior to his incarceration. This includes, since his incarceration, Dr Samuels, who had on other occasions, found him to have no psychotic illness at all.
There is some support for the need to factor in the relevance of such treatment in the fact that, excluding any apparent diagnosis, the report from Dr Alkholaidi shows prescription of anti-psychotic medication followed by improvement in health. This is, of course, not proof of much, but it is a relevant factor that needs to be considered in the assessment of the complete picture of Mr Al-Harazi’s mental health, particularly in that there was a similar reaction to such a prescription by Dr Helmy.
I am troubled by the clear and unambiguous diagnosis of Dr Burhan and I do not underestimate his qualifications or experience. While I accept mental impairment is suffered by Mr Al-Harazi, the clear episodic nature of symptoms seems to me, while not excluding psychosis and psychotic symptoms, to contra-indicate a serious underlying illness.
I am, however, influenced by the almost unanimous opinion of those who have a linguistic and cultural sensitivity to Mr Al-Harazi and who are clear in their identification of psychosis and psychotic symptoms, at least from time-to-time. The advantages of such persons may well enable them to provide a clearer and fairer picture of his mental health where, despite the commitment and ability of interpreters, nuance can often be lost when interpreters, as are required to do so, act as intermediaries between patient and clinician.
Unfortunately, this was not explored by Professor Greenberg.
Further, Professor Greenberg acknowledged that Mr Al-Harazi had suffered anxiety and depression and this is consistent with the treatment he received from Dr Helmy, somewhat strengthening the value of Dr Helmy’s report.
In addition, Professor Greenberg seems, as noted above, to accept that Mr Al-Harazi has some psychosis, though, it seems, he would describe it as situational rather than organic. Despite this, and supportive of the degree of provisionality of his opinion, Professor Greenberg noted that, on Mr Al-Harazi’s discharge from The Canberra Hospital, the discharge summary recommended “an organic work-up” to exclude underlying organic causes. That does not appear to have been done, despite the claim that the Hume Health Centre provides a level of treatment equal to that which members of the community outside the prison can expect. I note, too, in this context, that the MRI investigation recommended by Dr Burhan seems not to have been undertaken. These undermine the certainty that one can give to Professor Greenberg’s opinion; nevertheless, it is one that I must and do take seriously.
Professor Greenberg appears to accept that Mr Al-Harazi also suffers from an adjustment disorder and from personality problems.
To add to this is the consistent theme of lay reaction to Mr Al-Harazi. That, of course, cannot constitute any form of diagnosis but the observations have two aspects. In the first place, they are important to place symptoms, whatever the changing nature of the expression of these may be, into the longitudinal context that Professor Greenberg finds important.
In this context, I note secondly that there are elements of those observations which are quite inconsistent with malingering or secondary gain. For example, Mr Al-Harazi’s father-in-law felt that he was so disturbed that he took him to see the Sheik at a Canberra Mosque to be dealt with according to Muslim custom. There is no version of that which is consistent with malingering or any advantage that he would likely gain.
Further, his evidence before me on sentencing was bizarre in its context, and, indeed, as I observed during it, the effect was likely to be damaging to his sentencing, because of what he was saying, rather than helpful. The stressors that his behaviour had put on his family, especially leading to a separation from his wife, showed no consistency with malingering or seeking an advantage.
Finally, I have had the opportunity to observe Mr Al-Harazi during the whole of the trial and I am satisfied that the bizarre and disturbing evidence he gave on sentencing was what he genuinely thought was fact. I detected no evidence to suggest that he was manufacturing the evidence; it was, in my view, quite delusional. I note that while Dr Burhan had access to this evidence, before he prepared his final report, Professor Greenberg did not. Thus, while I accept that Mr Al-Harazi may not have a serious psychotic illness, and I cannot find that to the relevant degree of proof, he has mental impairments which lead him to act in somewhat abnormal ways.
This seems to me to be relevant in sentencing. In R v Verdins at 270-2; [3]-[13], the Victorian Court of Appeal addressed the issue of the kind of mental condition that was relevant to sentencing. It considered a number of authorities and rejected the view, which had been put by the Crown, that only a “serious psychotic illness not amounting to insanity” was relevant to sentencing.
The Court said at 271; [8]:
A sentencing court should not have to concern itself with how a particular condition is to be classified. Difficulties of definition and classification in this field are notorious. There may be differences of expert opinion and diagnosis in relation to the offender. It may be that no specific condition can be identified. What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.
(footnote omitted)
The Court then (at 272; [11]) quoted with apparent approval what it had earlier held in R v Skura [2004] VSCA 53 at [8]:
A disorder falling short of serious psychiatric illness might well be capable of moderating the need for general or specific deterrence but the onus was on the applicant to demonstrate that it did so in this case, by establishing that its effect reduced the seriousness of the offences and the moral culpability of the applicant.
The Court in R v Verdins at 272; [13], concluded:
Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the inquiry. As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances – that is, at the time of the offending or in the lead-up to it – or is likely to affect him/her in the future.
It seems to me that Mr Al-Harazi suffers from depression and bouts of psychosis however generated. He appears to have a personality disorder, though that was not so labelled by Professor Greenberg, but was so by others.
I note that the Queensland Court of Appeal in R v Hayes [2010] QCA 96 has expressed a doubt as to whether a personality disorder is a mental impairment attracting the principles applicable to the principles surrounding the effect of mental impairment on sentence. I am not clear that this is consistent with what was said in R v Verdins, but I do not have to resolve this. This issue was not raised by the Crown and I note that Burns J proceeded in R v Rappel [2017] ACTSC 38 at [113] as if the principles in R v Verdins were applicable where an accused suffers from a personality disorder.
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.
The depression may have been associated with his wish to return to Yemen and also associated with his unhappiness in Australia, but the evidence is far from clear as to how it so affected his actions on the night of the offence that his culpability was moderated, as required, by the authorities I have cited, before it can be taken into account and which authorities I consider should be applied. I accept that some of his actions and his aggression have seemed irrational, but not such that I should reject professional opinion. Nevertheless, as I have indicated, they have affected his actions on that night to some degree.
I am, however, of the opinion that because of the mental impairment, there is a lesser relevance of general deterrence in sentencing as identified in the relevant principles that I must apply.
There is no doubt, however, that Mr Al-Harazi's mental impairment will affect his time in custody. The evidence of Ms Kocak has already shown that and, relevantly, was not subject to significant challenge. While he is making progress in his adjustment to prison life, he remains socially isolated and this is, at least contributed to, by his behaviour. Those who might be expected to have empathy with his religious, cultural and linguistic norms are ultimately repelled by his behaviours. I see no reason why that is likely to change soon and no-one has suggested that in submissions.
Of course, the barrier that his language provides will abate as he learns English. That, however, will be slow because of his lack of positive relationships with his fellow inmates, attested to by Ms Kocak without challenge. Nevertheless, as pointed out by the Crown, he will gradually become more proficient in English almost inevitably, and that will moderate the disadvantage and perhaps some aspects of his social isolation, though that does not seem to be the sole cause of that condition from which he suffers.
Even if this barrier is overcome, his behaviour and delusions, perhaps then articulated in English instead of Arabic, will be problematic for the larger number of detainees who will then be able to understand them. That seems to me to be likely on the balance of probabilities, and no submission was put to the contrary.
Accordingly, I am satisfied that Mr Al-Harazi's mental condition will make his period of imprisonment more onerous than that of the majority of other prisoners not so suffering.
A related but somewhat different issue is the fact that Mr Al-Harazi will also suffer his incarceration more heavily than other prisoners because of his cultural, family and linguistic isolation. He has no family in Australia that is likely to visit him. He has, since his incarceration on 17 March 2015, had only one visitor apart from the Chaplain Imam. This is a factor of mitigation as held in R v Salew [1998] VSCA 141 at [25]. This is not a case, as in Ferrer-Esis (1991) 55 A Crim R 231 at 239, where Mr Al-Harazi came to Australia to commit the offence where such a factor would not be relevant.
Some of the relevant factors overlap with the issues I have identified in relation to the effect of Mr Al-Harazi's mental impairment, but the point is different. I must, and shall, take care not to give undue weight to those factors because of that overlap.
Sentencing Practice
As required under the Crimes (Sentencing) Act, I must consider sentencing practice and, indeed, as Mr S Drumgold for the Crown properly pointed out, this is an important part of the Crown's obligations as noted by the High Court in Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at 73; [38], 75; [44]-[46].
Mr Drumgold indicated that the Crown submitted that this was not a case where life imprisonment was required. Thus, although included in the bundle of authorities was R v Eastman (Unreported, Australian Capital Territory Supreme Court, Carruthers AJ, 10 November 1995), where Mr Eastman was sentenced to life imprisonment, I do not need to consider that case further, other than to note that it is not so comparable that it would helpful.
Mr Drumgold referred to two decisions of this Court: R v Rappel and Vojnevski v The Queen. It is appropriate to deal with each. I note, of course, that no sentence is a precedent of any other sentence: Ashdown v The Queen [2011] VSCA 408; 219 A Crim R 454 at 490; [151] (8).
In R v Rappel, Mr Rappel was convicted of murder on his plea of guilty. He had separated acrimoniously from the victim who had arranged to have a Domestic Violence Order issued against him. Mr Rappel, on the day of the murder, purchased an axe and, in defiance of the court order, went to the home of the victim, smashed the door of the house with the axe and entered it. The victim was holding their eight day old baby, but Mr Rappel may not have seen that.
The victim ran from the room and Mr Rappel chased her and struck her twice with the axe, the first time on her left shoulder, causing a deep cut to the shoulder muscle and a fracture of the shoulder blade, and then striking her on the back of the neck, completely severing the spine and the vertebral artery. He then left the house and waited for police to arrive and arrest him.
Mr Rappel relied on reports of a psychologist who found that he had a personality disorder which, combined with the illicit drugs he was taking, impaired his mental functioning. Burns J, however, found that there was no causal relationship between the impairment and the commission of the offence. He also found that Mr Rappel's mental impairment would not be adversely affected by his imprisonment. No reduction in sentence was given for his mental impairment.
Mr Rappel had a supportive home life, had difficulties at school and struggled with depression and anxiety. He had a limited criminal history. His plea of guilty was mentioned and his Honour indicated that, but for the plea of guilty, he would have sentenced him to life imprisonment. Ultimately, his Honour sentenced him to 30 years imprisonment.
There were other offences and the total sentence was imprisonment for 32 years and two months with a non parole period of 26 years.
Mr Drumgold submitted that Mr Al-Harazi committed a more serious offence because of the circumstances where it was committed; within Ms Al-Mdwali's bedroom where she was breastfeeding and with two young children nearby. He thereby effectively orphaned three children. There were more wounds inflicted. He did not admit his guilt but accused others who were arrested at the time they learnt of her death, in difficult circumstances.
I accept that it has some features of greater seriousness. On the other hand, as Mr Drumgold concedes, the victim of Mr Rappel’s attack was holding her newborn child and her three children also lost their mother. Further, Mr Rappel deliberately went out and purchased the weapon, an axe, a fearsome weapon. I however accept that knives are lethal and serious weapons too. In this case, there was no court order preventing contact between offender and victim as there was in the case of Mr Rappel. Further, there was no mental illness that affected the sentencing of Mr Rappel in the way that I have held Mr Al-Harazi’s mental impairment affects the sentencing.
Since sentences are not precedents, it is inappropriate to compare them minutely. It is, as the High Court pointed out in Barbaro v The Queen and more recently in R v Kilic [2016] HCA 48; 339 ALR 229, appropriate to use comparable cases as a yardstick, to give a broad understanding of the range of sentences that ensure consistency in sentencing. It is more appropriate to identify the factors that determine where an offence and the offender lie on the “spectrum” extending from the least serious offence to the worst serious offence, properly so-called.
The second decision was Vojneski v The Queen. Mr Vojneski stabbed the victim to death in her bedroom by the infliction of 11 stab wounds and four incised wounds, principally to the chest, heart and lung area, and to the forearms of the victim. Mr Vojneski and the victim had been in a relationship. The knife appeared to come from the kitchen in the victim’s home.
Mr Vojneski pleaded not guilty and identification was a central issue at his trial. He was found guilty.
The sentencing judge found that Mr Vojneski took advantage of the victim’s trust of him to kill her in her own bedroom where she was vulnerable, helpless and unarmed. There was, after arming himself with the knife, some time during which he could reflect on his actions before committing the murder.
There was an absence, as there is here, of a number of aggravating features that are to be found on occasions with the offence of murder, but the offence was rightly described as horrific, involving a frenzied loss of control. There was, however, significant mental illness suffered by Mr Vojneski, including auditory hallucinations. He had attempted suicide and had regularly accessed public mental health services. He had been diagnosed at age 17 with paranoid schizophrenia and had, since 2004, when he was 20, been regularly medicated for psychosis.
This, the Court of Appeal held, was very relevant to sentence and reduced the sentence from life imprisonment to 19 years imprisonment with a non parole period of 10 years.
In many ways, this was a similar offence in the actual circumstances of its commission, though there were some significant differences. Thus, there was no baby present at the stabbing and there were, here, many more wounds in this case than in the case of
Mr Vojneski, making this case more serious. The most striking difference, however, is in the serious mental illness which was accepted by the Court of Appeal in Vojneski. It both affected the offence because of his distorted perception, which led to pathological jealousy and delusions of infidelity, but which also would make the burden of incarceration more onerous.
Consideration
The purposes for which a court must impose sentence are set out in s 7 of the Crimes (Sentencing) Act. In the case of serious offences such as this, several of those factors are important. Given the length of the sentence I must impose and the particular circumstances of the offending, I do not consider that specific deterrence is a particularly significant factor.
I have already indicated that there is some moderation in the role that general deterrence plays in the sentence. Nevertheless, as pointed out in Munda v Western Australia [2013] HCA 38; 249 CLR 600 at 620; [54]-[55], while general deterrence may be moderated, the killing of a domestic partner, which requires a recognition of the seriousness of the taking of a human life and the need to vindicate the human dignity of the victim, means that severe punishment is important. The denunciation of such crimes is important in the community.
It is important also to recognise the harm done to the victims, including here, the family, who were devoted to a loving and beloved daughter, sister and mother, who gave so much joy to them in her life and had so much to which she could have to look towards with the development of her children and her nieces and nephews.
I have described the seriousness of the crime above. As the High Court has pointed out in R v Kilic, trying to categorise such offences, as in the worst category or not, is inappropriate. It is important to identify the relevant factors which describe the seriousness of the offence and give them due weight. I have done that. The Crown accepts that this is not so grave, despite its very seriousness, as to warrant the imposition of the maximum penalty provided, namely life imprisonment. I am not, of course, bound by that submission, but it accords with my own assessment. Indeed, I have, additionally to the matters relied on by the Crown, accepted that there is a significant role in sentencing for Mr Al-Harazi’s mental impairment.
Nevertheless, this is a very serious crime and the offence has aggravating features, such that a very lengthy term of imprisonment is warranted. No other sentence would be appropriate.
I have regard to the matters which I am required to consider by s 33 of the Crimes (Sentencing) Act. So far as I am aware of them, they have been set out in my remarks earlier.
I do not need to summarise Mr Al-Harazi’s personal circumstances any further. They are also set out in these remarks.
I have given this matter careful and agonising consideration. Whatever sentence I impose will be a severe punishment to Mr Al-Harazi. It will not restore a deceased mother, daughter, sister to the love and care of her family and, especially, will not provide the maternal care that her children should be entitled, and are entitled, to receive. This is simply not possible for a court to achieve.
I must, also, whatever the views of the victims of this crime, apply the law as expressed through those, the legislature and the courts, charged with making the law and setting the sentencing standards for sentencers, such as myself, to apply.
Mr Al-Harazi, please stand.
1. I convict you of the murder of Sabah Al-Mdwali on 17 March 2015.
2. I sentence you to imprisonment for 30 years to commence on 17 March 2015.
3. I set a non parole period of 21 years, to commence on 17 March 2015 and to end on 16 March 2036.
| I certify that the preceding two hundred and twenty-one [221] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge. Associate: Date: 22 November 2017 |
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