R v Al-Harazi (No 7) - [2017] ACTSC 350

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 Crimes (Sentencing) Act 2005 (ACT), ss 7, 17, 33 Evidence Act 2011 (ACT), s 4(2)
Cases Cited:	Ashdown v The Queen [2011] VSCA 408; 219 A Crim R 454 Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Edigarov [2001] NSWCCA 436; 125 A Crim R 551 Ferrer-Esis (1991) 55 A Crim R 231 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Millard v The Queen [2016] ACTCA 14 Munda v Western Australia [2013] HCA 38; 249 CLR 600 R v Al-Harazi (No 3) [2016] ACTSC 290 R v Al-Harazi (No 5) [2017] ACTSC 61 R v Bartlett [2016] ACTSC 390 R v BI (No 4) [2017] ACTSC 71 R v Bourchas [2002] NSWCCA 373; 133 A Crim R 413 R v Eastman (Unreported, Australian Capital Territory Supreme Court, Carruthers AJ, 10 November 1995) R v Eisenach [2011] ACTCA 2 R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 R v Hayes [2010] QCA 96 R v His Honour Judge Rapke; Ex parte Curtis [1975] VR 641 R v Iacuone (No 2) [2014] ACTSC 149; 286 FLR 217 R v Kilic [2016] HCA 48; 339 ALR 229 R v Lewis (Unreported, NSWSC, Dowd J, 25 October 1996) R v Pace [2008] NSWCCA 233 R v Rappel [2017] ACTSC 38 R v Salew [1998] VSCA 141 R v Schmidt [2013] ACTSC 295 R v Skura [2004] VSCA 53 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Verdins [2007] VSCA 102; 16 VR 269 Vojneski v The Queen [2016] ACTCA 57 Weininger v The Queen [2003] HCA 14; 212 CLR 629
Parties:	The Queen (Crown)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] ACTSC 350
Decision Date: 10 August 2017

CaseChat Overview and Summary

The case before the court was an appeal against sentence by the respondent, Maged Mohammed Ahmed Al-Harazi, who was convicted of the murder of Sabah Al-Mdwali. The appeal was heard in the Supreme Court of Victoria. The primary issue before the court was whether the sentence imposed on Al-Harazi was manifestly excessive or inadequate. The court was required to consider the nature and circumstances of the offence, including the offender's mental state at the time of the offence, the principles of sentencing for murder, and the appropriate non-parole period.

The court found that the offender had been found guilty of a family violence offence, which involved a high degree of premeditation and cruelty. The court noted that the offender had a history of violent behaviour towards the victim and that the victim had died as a result of multiple stab wounds. The court also considered the principles set out in Verdins, which provide that the sentence for murder should reflect the seriousness of the offence and the culpability of the offender. The court found that the sentence of 30 years imprisonment, with a non-parole period of 21 years, was appropriate in the circumstances of the case.

The court rejected the argument that the sentence was manifestly excessive, noting that the sentence was within the range of sentences typically imposed for murder in Victoria. The court also rejected the argument that the sentence was inadequate, noting that the sentence reflected the seriousness of the offence and the culpability of the offender. The court found that the sentence was proportionate to the gravity of the offence and that the non-parole period was appropriate to ensure that the offender would remain in custody for a sufficient period of time to protect the community.

The court dismissed the appeal against sentence and confirmed the sentence imposed by the trial judge. The orders of the court were that Maged Mohammed Ahmed Al-Harazi be convicted of the murder of Sabah Al-Mdwali, that he be sentenced to imprisonment for 30 years to commence on 17 March 2015, and that a non parole period be set to commence on 17 March 2015 and end on 16 March 2036.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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