Rahimi v The State of Western Australia
[2024] WASCA 13
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RAHIMI -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 13
CORAM: QUINLAN CJ
MAZZA JA
LUNDBERG J
HEARD: 14 AUGUST 2023
DELIVERED : 8 FEBRUARY 2024
FILE NO/S: CACR 15 of 2022
BETWEEN: IMAN RAHIMI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 113 of 2022
BETWEEN: IMAN RAHIMI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: FIANNACA J
File Number : INS 290/2017
Catchwords:
Criminal law - Appeals against convictions - Criminal damage by fire and attempted fraud - Pleas of guilty - Appeal from conviction following pleas of guilty - Whether miscarriage of justice
Legislation:
Criminal Code (WA), s 409(1)(c), s 442, s 444(1)(a)
Criminal Procedure Act 2004 (WA), s 41, s 132
Result:
CACR 15 of 2022
Applications to adduce additional evidence on the appeal refused
Leave to appeal on grounds 1 to 17 refused
Application for an extension of time within which to appeal refused
Appeal dismissed
CACR 113 of 2022
Application to adduce additional evidence on the appeal refused
Leave to appeal on grounds 1 to 18 refused
Application for an extension of time within which to appeal refused
Appeal dismissed
Category: B
Representation:
CACR 15 of 2022
Counsel:
| Appellant | : | In person |
| Respondent | : | R P Arndt |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 113 of 2022
Counsel:
| Appellant | : | In person |
| Respondent | : | R P Arndt |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Impicciatore v The State of Western Australia [2020] WASCA 33
Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
Liberti v The Queen (1991) 55 A Crim R 120
Musgrave v The State of Western Australia [2021] WASCA 67
NI v The State of Western Australia [2020] WASCA 78
Snook v The State of Western Australia [No 2] [2015] WASCA 29
Wilson v The State of Western Australia [2014] WASCA 236
Table of contents
Introduction and summary
Some procedural background
Extension of time and miscarriage of justice
Applications to adduce additional evidence
Applications in CACR 15 of 2022 filed on 2 August 2022
Application in CACR 113 of 2022 filed on 10 January 2023
Application in CACR 15 of 2022 filed on 20 March 2023
Application in CACR 15 of 2022 filed on 18 July 2023
CACR 15 of 2022 - disposition
Amendment of the indictment - grounds 1, 2, 3, 4, 8, 9, 15 and 16
The 'unidentified men' - grounds 5, 6 and 14
Goldenwest Properties' ownership of the building - grounds 7, 12 and 17
Whether Mr Rahimi understood the plea - ground 10
Alleged factual errors - ground 11
Allegation of bias - ground 13
Conclusion as to CACR 15 of 2022
CACR 113 of 2022 - disposition
Goldenwest Properties' ownership of the building - grounds 1, 12 and 18
Mr Rahimi's intention - grounds 2, 3, 4, 5, 10, 11 and 17
'Invalid' evidence - ground 6
Whether Mr Rahimi understood the plea - ground 7
Evidence as to the effect of Iranian culture - ground 8
Allegation of bias - ground 9
Alleged wrong advice - ground 13
The 'unidentified men' - grounds 14 and 16
Indictment not signed or filed - ground 15
Conclusion as to CACR 113 of 2022
Conclusion and orders
CACR 15 of 2022
CACR 113 of 2022
JUDGMENT OF THE COURT:
Introduction and summary
On 14 March 2017, a vacant commercial building at 126 to 128 Pilbara Street, Welshpool (building), was extensively damaged by a fire. The damage was in the millions of dollars. The building was owned by Goldenwest Properties Pty Ltd (Goldenwest Properties), a company associated with Mr Hossean Pourzand.
On 15 March 2017, Mr Pourzand made a claim on an insurance policy with Chubb Insurance Australia Ltd in relation to the building. Mr Pourzand was one of the insured under the policy, as was his wife and Goldenwest Properties as trustee for a number of family trusts.
On 11 July 2017, the appellant, Iman Rahimi, was interviewed by detectives from the WA Police, Arson Squad in relation to the fire. At that time Mr Rahimi made no admissions. After the interview both Mr Rahimi and Mr Pourzand were charged with arson and attempted fraud.
On 19 July 2017, Mr Rahimi's lawyers spoke with the investigating officers on his behalf, offering to provide them with assistance and, on 24 July 2017, Mr Rahimi participated in a further interview with detectives. In that interview Mr Rahimi told the detectives that he had started the fire in the building. Mr Rahimi said that he had done so at the request of Mr Pourzand, in order to help out with 'financial problems'.
Following that interview, on 28 July 2017, Mr Rahimi provided a signed written statement to police. In that statement, Mr Rahimi said that he was approached by Mr Pourzand who offered him money and a low interest loan 'to get rid of' the fit out at the building. He said that Mr Pourzand told him how to start a fire in the building using citronella as fuel. Mr Rahimi said that he purchased citronella and other items (including candles and a sash cord) from Bunnings and used those items to light the fire.
Mr Rahimi said that, on the night of the fire, he dipped a sash cord into citronella, connected the sash cord between points and placed candles at each point with the sash cord around the candles. He then 'lit the upstairs candles', 'lit the downstairs candles and left'. Mr Rahimi said in the statement that he thought that the fire would cause 'about $600k to $700k in smoke damage'.
On 16 August 2017, Mr Rahimi pleaded guilty in the Magistrates Court to one count of criminal destruction of property by fire and one count of attempting to gain a benefit by fraud. On 11 October 2017, Mr Pourzand pleaded guilty to the same charges. Both Mr Rahimi and Mr Pourzand were committed to the Supreme Court for sentence.
On 18 December 2017, Mr Rahimi and Mr Pourzand pleaded guilty in this Court (before Hall J) to one count of criminal destruction of property by fire, contrary to s 444(1)(a) of the Criminal Code, and one count of attempting to gain a benefit by fraud, contrary to s 409(1)(c) of the Criminal Code. The proceedings in relation to Mr Rahimi were adjourned to a later date for sentence. The proceedings in relation to Mr Pourzand, however, were adjourned to a trial of issues as to facts that remained in dispute for the purposes of sentence.
On 4 May 2018, Mr Rahimi appeared before Fiannaca J for sentence. Mr Rahimi was represented by Mr Vandongen SC, as his Honour then was. At the commencement of the hearing the parties applied, by consent, for Mr Rahimi to be able to change his plea in relation to the charge pursuant to s 444(1)(a) of the Criminal Code. The parties were agreed that Mr Rahimi should be sentenced, in relation to that charge, on the basis that Mr Rahimi's intention was not to 'destroy' the building but to 'damage' it. Fiannaca J acceded to the application and permitted Mr Rahimi to withdraw the plea of guilty to the charge that he 'wilfully and unlawfully destroyed' the building and to plead to a charge to the effect that he 'wilfully and unlawfully damaged' the building.
Following the amendment of the indictment to reflect that proposed course of action, Mr Rahimi pleaded guilty to a new count of criminal damage of property by fire, contrary to s 444(1)(a) of the Criminal Code.
On 10 May 2018, Fiannaca J sentenced Mr Rahimi to 4 years and 4 months imprisonment for the count of criminal damage of property by fire and 8 months imprisonment for the count of attempting to gain a benefit by fraud, to be served cumulatively on the sentence of 4 years and 4 months. Mr Rahimi's total effective sentence was 5 years imprisonment. He was made eligible for parole. Mr Rahimi was sentenced on the basis that the learned sentencing judge accepted that 'at the time [he] committed the arson [Mr Rahimi's] belief was that the claim would be for $600,000 to $700,000'.
On 8 April 2019, Mr Rahimi gave evidence at the trial of issues before Hall J in relation to the sentencing of Mr Pourzand. Mr Rahimi gave evidence, with the assistance of an interpreter, that was consistent with his second interview with police, his statement of 28 July 2017 and his pleas of guilty: namely that he had started the fire in the building and that he had done so at the request of Mr Pourzand to help with 'financial problems'.
Mr Rahimi served the entirety of his sentence and has returned to the community.
Notwithstanding this uncontentious history, following his release on parole, Mr Rahimi lodged appeals against both of his convictions. The appeal against Mr Rahimi's conviction for criminal damage of property by fire (CACR 15 of 2022) was lodged on 14 March 2022 and the appeal against his conviction for attempting to gain a benefit by fraud (CACR 113 of 2022) was lodged on 14 November 2022. Both appeals are years out of time and require this Court to extend the time within which to appeal.
For the reasons that follow, the appeals are without merit. None of the many grounds of appeal justify either an extension of time or a grant of leave to appeal. The appeals must be dismissed.
Some procedural background
Mr Rahimi has, at all times during the currency of the appeals, been unrepresented. Mr Rahimi has also, at hearings relating to the appeals, had the assistance of a Farsi interpreter.
In the course of the appeal proceedings, Mr Rahimi made a number of applications within the appeals. Some of those applications were finally determined by judges and registrars of the Court, while other applications were referred to the hearing of the appeals. CACR 15 of 2022 was initially listed for hearing on 14 February 2023. That hearing date was later vacated, and a number of directions hearings were conducted by Mazza JA in the lead up to the further date listed for the hearing of both appeals, being 14 August 2023.
At the hearing of the appeals on that date, further to an application filed on 8 August 2023, Mr Rahimi again applied to adjourn the appeals. The basis for the adjournment was that Mr Rahimi now had a lawyer, to whom he had provided all the relevant appeal papers. In the course of exchanges with the Court in relation to the adjournment application, Mr Rahimi sought an opportunity to call the lawyers.
When the hearing resumed, Mr A G Elliott of counsel appeared. Mr Elliott advised the Court that he did not have instructions to act for Mr Rahimi but advised that if certain conditions were met, he would be prepared to act, together with a solicitor who had been approached by Mr Rahimi. Mr Elliott did, however, take certain limited instructions from Mr Rahimi, during the course of two further short adjournments of the hearing. He did so in order to address the potential for the Court to hear submissions from Mr Rahimi in support of the appeals and reserve its decision, but to grant any legal practitioner acting for Mr Rahimi liberty to file further written submissions in relation to the appeals and outstanding applications and to make any further application within the appeals within 28 days.
Mr Elliott took instructions and advised the Court that Mr Rahimi did not wish to be further heard at the hearing of appeals or the outstanding applications in the appeals, on the basis that lawyers instructed by him would have the opportunity to make written submissions in relation to the appeals and applications at a later time.
The Court refused the application for an adjournment and, on the basis that Mr Rahimi did not wish to be further heard orally, reserved its decision. The Court made orders to the effect that any legal practitioner who filed a notice of acting for Mr Rahimi had liberty to file further written submissions and to make any further application with respect to the appeals within 28 days.
As events transpired, no legal practitioner filed a notice of acting for Mr Rahimi, within 28 days or at all. It has therefore been necessary for the Court to determine the appeals on the written material before the Court as at 14 August 2023. Nevertheless, we record the Court's considerable gratitude to Mr Elliott for his prompt attendance at the hearing of the appeals and his assistance in ensuring that the appeals could be fairly and efficiently progressed.
Extension of time and miscarriage of justice
Mr Rahimi seeks to rely upon a great many grounds of appeal in the appeals. The appeal against his conviction for criminal damage of property by fire (CACR 15 of 2022) includes 17 grounds of appeal and the appeal against his conviction attempting to gain a benefit by fraud (CACR 113 of 2022) includes 18 grounds of appeal. While there is a good deal of overlap in the grounds, the 35 grounds of appeal (in total) raise a number of serious allegations of bias, fraud and duress.
We will later address, briefly, the substance of the various contentions made by Mr Rahimi in the grounds of appeal. Nevertheless, before descending into some of the detail of Mr Rahimi's contentions, it is important not to lose sight of two significant hurdles that stand in the way of the success of these appeals generally.
First, the appeals are, on any view, significantly out of time. Where there has been a lengthy delay in filing an application for leave to appeal, the court requires exceptional circumstances to be established before an extension of time will be granted, unless it can be shown that there will be a substantial miscarriage of justice if such an extension is not granted.[1]
[1] Wilson v The State of Western Australia [2014] WASCA 236, [27] ‑ [29] (Hall J; Martin CJ & Mazza JA agreeing); Musgrave v The State of Western Australia [2021] WASCA 67 [259] (Pritchard JA; Quinlan CJ agreeing).
The need for an extension of time in a case such as the present is no mere formality. Any extension of time, particularly for a lengthy delay, must be justified by evidence which properly addresses the length of, and reasons for, the delay. In the present case, Mr Rahimi's affidavits in support of the applications for extensions of time provide no cogent explanation for the lengthy delay. Those affidavits consist largely of assertions as to the existence of 'new evidence' and fresh 'evidence' and rely upon the fact that Mr Rahimi was imprisoned following his convictions and had no financial means for an appeal.
As to the alleged 'new' or 'fresh' evidence, as we will come to, there is nothing filed in support of the appeals which could properly be admitted as 'new' or 'fresh' evidence. Nor does Mr Rahimi's imprisonment adequately explain the fact or the length of the delay. Indeed, it may be noted that Mr Rahimi was able to, and in fact did, lodge an appeal against his sentence at a much earlier stage. That appeal was dismissed.[2] Mr Rahimi's explanations for the delay are therefore inadequate. In those circumstances, to justify an extension of time within which to appeal would require the Court to be satisfied that Mr Rahimi will suffer some real injustice if the appeals are not allowed.
[2] NI v The State of Western Australia [2020] WASCA 78.
The second significant hurdle faced by Mr Rahimi in this case is that he seeks to appeal from convictions entered following pleas of guilty. As this Court has often observed, it is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty, particularly when, as here, the appellant was legally represented when the plea of guilty was entered.[3] There is a strong public interest in the finality of proceedings and a guilty plea is taken to be an admission by an accused person of the necessary ingredients of the offence charged.[4]
[3] Snook v The State of Western Australia [No 2] [2015] WASCA 29 (Snook) [103] ‑ [104] (Hall J; Buss & Mazza JJA agreeing); Lawson v The State of Western Australia [No 2] [2018] WASCA 204 (Lawson [No 2]) [19] (Buss P, Mazza & Beech JJA).
[4] Snook [104] (Hall J; Buss & Mazza JJA agreeing).
For these reasons, the courts approach attempts on appeal that, in effect, seek to change a plea of guilty with caution bordering on circumspection.[5] The appellant must satisfy the court that there has been a miscarriage of justice. While the categories of miscarriage of justice are not closed, the cases reveal that there are three well‑recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not, in law, have been guilty of the offence and cases where the guilty plea has been obtained by improper inducement, fraud, intimidation or the like.[6]
[5] Liberti v The Queen (1991) 55 A Crim R 120, 122 (Kirby P, Grove & Newman JJ agreeing); Snook [104] (Hall J; Buss & Mazza JJA agreeing).
[6] Lawson [No 2] [19] (Buss P, Mazza & Beech JJA).
As will be seen, no such circumstances exist in the present case.
It will be apparent from these principles that it is a rare case in which an appeal against a conviction following a plea of guilty will be successful. Rarer still would be a case (such as the present) where the accused not only pleads guilty, on more than one occasion, but provides a witness statement and then gives evidence in open court admitting to the essential elements of the charges to which he has pleaded guilty.
In short, in the present case:
(a)there is no reasonable basis to contend that Mr Rahimi did not understand the nature of the charges for which he pleaded guilty and now appeals;
(b)there is no reasonable basis to contend that on the facts which he not only admitted, but confirmed in the witness box, that Mr Rahimi could not in law have been guilty of the offences for which he was convicted; and
(c)there is no reasonable basis to contend that Mr Rahimi's guilty pleas were obtained by improper inducement, fraud, intimidation or the like.
In the circumstances it is not necessary to exhaustively address each of Mr Rahimi's contentions and submissions. Many of them are difficult to follow. It is sufficient that we set out those matters necessary to conclude that no miscarriage of justice arises from this Court concluding that Mr Rahimi is bound by his pleas of guilty, and his admission of the offences, and in dismissing the appeals.
Before addressing each of the appeals, we will address Mr Rahimi's outstanding applications in the appeals to adduce additional evidence.
Applications to adduce additional evidence
At the hearing of the appeals there were a number of outstanding applications to adduce additional evidence in the appeals:
(a)two applications in CACR 15 of 2022 filed on 2 August 2022;
(b)an application in CACR 113 of 2022 filed on 10 January 2023;
(c)an application in CACR 15 of 2022 filed on 20 March 2023; and
(d)an application in CACR 15 of 2022 filed on 18 July 2023.
In exercising its discretion whether to admit additional evidence, this Court is ultimately concerned with whether it is just, in all of the circumstances, to admit the further evidence on appeal.[7] In that context, in the case of an appeal against conviction based on new or fresh evidence, the common law principles concerning new and fresh evidence remain relevant to the exercise of the discretion and to the determination of whether there was a miscarriage of justice, although the exercise of the discretion and the determination of whether there was a miscarriage of justice do not involve the rigid application of those principles.
[7] Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460 [114] (Buss JA, Steytler P agreeing), [9] (Pullin JA).
In that regard, where an accused has been convicted, an appellate court will generally not allow an appeal on the basis of new (as distinct from fresh) evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted.[8]
[8] Impicciatore v The State of Western Australia [2020] WASCA 33 [69] ‑ [70] (Quinlan CJ), [218] ‑ [232] (Buss P & Mazza JA).
We will address each application in turn.
Applications in CACR 15 of 2022 filed on 2 August 2022
The first application filed on 2 August 2022 seeks to adduce a current and historical company extract for Goldenwest Properties. Goldenwest Properties was, as we have said, the owner of the building. Plainly, the company extract is not fresh evidence and could easily have been obtained at an earlier time.
Nor could the company extract establish that Mr Rahimi was innocent or raise a doubt as to his guilt. It would appear that the company extract is sought to be relied upon by Mr Rahimi to support a number of spurious arguments, that appear throughout his submission, including that there is some significance to the fact that Goldenwest Properties was the owner of the building, rather than Mr Pourzand. In that regard Mr Rahimi refers, at various points in his submissions, to 'the objective theory of contract'.
None of this attention to the different legal entities involved in the ownership of the building or in the insurance arrangements could in any way affect the fact that, first, Mr Rahimi set fire to the building and, secondly, that he did so for the purpose of Mr Pourzand fraudulently obtaining a financial benefit. In that respect, Mr Pourzand, as noted above, was an insured under policy and therefore stood to gain by the claim.
The second application filed on 2 August 2022 seeks to adduce emails between two police officers sent on 20 July 2017 and 23 July 2017 respectively. Those emails were sent prior to Mr Rahimi's second record of interview (on 24 July 2017). They are entirely innocuous and simply refer to arrangements being made for Mr Rahimi's attendance. It is not in the interests of justice to admit them on the appeal.
The applications filed on 2 August 2022 must be refused.
Application in CACR 113 of 2022 filed on 10 January 2023
The affidavit in support of the application filed on 10 January 2023 annexes eight documents, which the affidavit identifies as new evidence. Those documents include copies of the original prosecution notice for the arson charge, the original indictment, the indictment as amended by Fiannaca J on 4 May 2018 and the application for the change of plea on 4 May 2018. The affidavit also annexes Mr Rahimi's original draft witness statement as prepared by his solicitor.
Insofar as the documents include documents on the court file, such as the indictment and application to change Mr Rahimi's plea, those documents are part of the record and need not be adduced in evidence. Otherwise, none of the documents the subject of the application filed on 10 January 2023 are fresh evidence and none of them could establish Mr Rahimi's innocence or cast doubt on his guilt.
Indeed, to the contrary, the documents simply support what is already apparent from the transcript of 4 May 2018, namely that Mr Rahimi had access to, and received the benefit of, expert legal assistance. The fact that Mr Rahimi was able to change his plea in relation to the arson on 4 May 2018 supports, rather than undermines, the integrity of the court process, the effectiveness of his legal representation and the informed nature of his pleas of guilty.
In that regard, the application made on Mr Rahimi's behalf on 4 May 2018 was to the effect that, notwithstanding that the building was in fact destroyed by the fire lit by Mr Rahimi, he should be permitted to change his plea to a plea that he was guilty of 'wilfully and unlawfully' damaging, rather than destroying, the building. The application was made on the basis of Mr Rahimi's admissions, and his instructions, as to his state of mind when he started the fire. The change of plea, which was to Mr Rahimi's benefit, was demonstrative of the appropriate legal advice that he received.
The application filed on 10 January 2023 must be refused.
Application in CACR 15 of 2022 filed on 20 March 2023
The affidavit in support of the application filed on 20 March 2023 annexes four emails and a decision of this Court concerning s 41 of the Criminal Procedure Act 2004 (WA). A decision of this Court need not be adduced in evidence and can be put to one side. The emails attached to the affidavit are communications between Mr Rahimi's instructing solicitor, Mr Crispe, and the Office of the Director of Public Prosecutions and Mr Vandongen SC, respectively. Those emails are all dated in either December 2017 or February 2018; that is, some months before Mr Rahimi's sentencing hearing.
Mr Rahimi contends that the emails demonstrate that he had raised the possibility with his lawyers that another person may have been in the building when he lit the fire and so 'we cannot be sure that I am totally responsible for the fire'. The emails confirm that Mr Crispe advised Mr Rahimi that there was 'nothing that supports such a version' and 'why this so‑called theory will get him nowhere'. That advice was clearly correct. The emails simply demonstrate that Mr Rahimi was provided with frank, objective and accurate advice by those representing him.
It is not in the interest of justice to admit these emails. The application filed on 20 March 2023 must be refused.
Application in CACR 15 of 2022 filed on 18 July 2023
The application filed on 18 July 2023 seeks the admission of some 37 documents. A number of them are already before the Court in the appeal books (such as an affidavit in support of the application for an extension of time) and some of them were included in the other applications (such as the company extract for Goldenwest Properties). None of them could conceivably be described as fresh evidence.
Mr Rahimi's affidavit in support of the application filed on 18 July 2023 asserts that many of the documents would be used by him in cross‑examination of Mr Pourzand, Western Australian police officers, the Department of Fire and Emergency Services and Goldenwest Properties. The very notion that these persons or entities would be cross‑examined in the appeal is misconceived.
The other documents the subject of the application filed on 18 July 2023 appear to relate to Mr Rahimi's contention that there was some significance in the fact that Goldenwest Properties was the owner of the building, rather than Mr Pourzand. Those documents include documents relating to the insurance policy and the claim made by Mr Pourzand. Mr Rahimi also refers at various times to his wish to 'clarify' the intention of Mr Pourzand and his own knowledge of Mr Pourzand's intention.
None of the documents the subject of the application filed on 18 July 2023 remotely provide a basis for suggesting, either, that Mr Rahimi did not 'wilfully and unlawfully' light a fire in the building on 14 March 2017 so as to cause damage to the building or that his doing was anything other than part of a deliberate plan to fraudulently obtain a benefit for Mr Pourzand. In that regard, the documents in relation to the insurance policy (including the policy schedule itself) confirm that Mr Pourzand was an insured under the policy and that Mr Pourzand made, and later withdrew, a claim under that policy.
It is not in the interest of justice to admit any of these documents. The application filed on 18 July 2023 must be refused.
We turn then to the substance of the appeals.
CACR 15 of 2022 - disposition
CACR 15 of 2022 concerns Mr Rahimi's conviction for criminal damage of property by fire, contrary to s 444(1)(a) of the Criminal Code.
The grounds of appeal in CACR 15 of 2022 can be addressed under a number of broad headings:
(a)Grounds 1, 2, 3, 4, 8, 9, 15 and 16: these grounds raise various contentions in relation to the process whereby the indictment was amended to enable Mr Rahimi to change his plea from one that he was guilty of 'wilfully and unlawfully destroying' the building to one that he was guilty of 'wilfully and unlawfully damaging' the building;
(b)Grounds 5, 6 and 14: grounds 5 and 6 contend, in essence, that Mr Rahimi could not have been guilty of damaging the building because 'unidentified men' were also engaged by Mr Pourzand to destroy the building. Ground 14 contends that Mr Rahimi pleaded guilty under duress by 'unidentified men';
(c)Grounds 7, 12 and 17: these grounds are particularly difficult to understand, but they appear to relate to Goldenwest Properties' ownership of the building and what Mr Rahimi alleges is the impossibility of him committing the offence;
(d)Ground 10: by this ground Mr Rahimi maintains, apparently by reference to the fact that his first language is Farsi, that he did not understand the nature and effect of his plea of guilty;
(e)Ground 11: this ground alleges factual errors on the part of the learned sentencing judge (Fiannaca J); and
(f)Ground 13: this ground alleges bias on the part of Fiannaca J.
For the reasons that follow, none of these grounds have any merit.
Amendment of the indictment - grounds 1, 2, 3, 4, 8, 9, 15 and 16
As we have previously set out, on 4 May 2018 Fiannaca J allowed an application that Mr Rahimi be permitted to withdraw his plea to the charge that he 'wilfully and unlawfully destroyed' the building, and plead to a charge that that he 'wilfully and unlawfully damaged' the building.
Mr Rahimi submits he was not served with a new prosecution notice (ground 1), that Fiannaca J did not satisfy himself that there was a prima facie case (ground 2), that Mr Rahimi was not advised that he was not obliged to plead (ground 3), that he pleaded guilty to the amended charge on the same day as the amendment (ground 4), that the judge should have referred the matter to a registrar (ground 8), that his lawyers provided wrong advice in relation to the requirements of criminal procedure (ground 9), that the amended charge was not the subject of an ex officio indictment (ground 15) and that all of these omissions would encourage negligence on the part of the Court (ground 16).
All of these criticisms of the process are misguided. They overlook the fact that, by 4 May 2018, the process provided for in the Criminal Procedure Act 2004 (WA), in relation to the service of prosecution notices and pre‑committal hearings, had all been completed. Mr Rahimi had already pleaded guilty to an offence contrary to s 444(1)(a) of the Criminal Code in both the Magistrates Court and in the Supreme Court.
The application made on 4 May 2018, in essence, amended the charge under s 444(1)(a) of the Criminal Code to replace the word 'destroyed' with the word 'damaged'. The amendment was entirely to Mr Rahimi's benefit. It was consistent with his own admissions, and it was within the Court's power to amend the indictment in s 132 of the Criminal Procedure Act 2004 (WA). While a court may adjourn the indictment following such an amendment, for example, if satisfied that the amendment might cause prejudice to the accused (see s 132(9)), the court is not obliged to adjourn before the accused is arraigned, in the absence of such prejudice. In this case, of course, there was no need for an adjournment. The amendment was to Mr Rahimi's benefit and it was made at his request.
No miscarriage of justice as a consequence of the procedure adopted in this case has been identified. Grounds 1, 2, 3, 4, 8, 9, 15 and 16 are without merit.
The 'unidentified men' - grounds 5, 6 and 14
As best as we can discern, by grounds 5 and 6, Mr Rahimi raises the possibility that Mr Pourzand engaged certain unidentified men, who also started a fire in the building on 14 March 2017, which led to the destruction of the building. Mr Rahimi's theory that these 'unidentified men' actually existed was apparently drawn from a news article published at the time of the police investigation. He also suggests that, at some later time in July 2017, two unidentified men followed him (ground 4). It is not clear whether Mr Rahimi submits that they were the same men.
To be clear, in positing his theory as to the unidentified men, Mr Rahimi does not deny or retract his admissions that he entered the building on 14 March 2017 and lit candles to start a fire. Indeed, Mr Rahimi's submissions in support of ground 5 repeat that he 'left after turning the candles on'.
Whether some other unidentified men also started a fire on 14 March 2017 is irrelevant to whether Mr Rahimi committed the offence for which he pleaded guilty. It could not plausibly be suggested that Mr Rahimi could not, as a matter of law, be guilty of the offence for which he was convicted.
In any event, the theory of 'unidentified men' being involved in the fire is wholly unsupported by any evidence. It is pure speculation, and highly implausible speculation at that.
Similarly, in relation to ground 14, there is no evidence to support the assertion that Mr Rahimi was subject to any duress by 'unidentified men'. Even his own submissions do not plausibly suggest that to be the case. Those submissions do not even suggest that Mr Rahimi communicated with the unidentified men. The appellant's submissions that he otherwise felt pressured by his lawyers or the judge are also without foundation. A distinction must be drawn between argument or advice to a client by a lawyer to plead guilty and improper pressure or harassment.[9] There is no suggestion of the latter in the present case. Nor does the record of the hearing before the learned sentencing judge suggest anything of the sort on the part of his Honour.
[9] Snook [105] (Hall J; Buss & Mazza JJA agreeing).
Grounds 5, 6 and 14 are without merit.
Goldenwest Properties' ownership of the building - grounds 7, 12 and 17
At the heart of grounds 7, 12 and 17 lies the proposition that the building damaged by the fire on 14 March 2017 was owned by Goldenwest Properties.
Mr Rahimi (particularly in ground 7) seeks to attribute something sinister (or at least significant) to the fact that the Statement of Material Facts prepared at the time that he was charged identified Goldenwest Properties as the victim; whereas the charge on the indictment did not refer to Goldenwest Properties. He asserts that the State did this deliberately, apparently because it was impossible for him to be guilty of damaging the property of Goldenwest Properties.
Why this was said to be so is not clear. It might be that Mr Rahimi seeks to rely upon having acted with the consent of the owner. In his submissions Mr Rahimi submits that he 'acted after being authorized/consented by the agent of the owner, Pourzand, and did not know who owned the building'. If this is the case, the contention is misconceived. Given the clearly fraudulent purpose for lighting the fire, any consent of the owner was irrelevant (see Criminal Code, s 442).
Alternatively, by these grounds Mr Rahimi may be seeking to attach some significance to the fact that the attempted fraud was directed to obtaining a benefit from the insurer of the building, Chubb Insurance Australia Ltd. That the attempted fraud was directed at the insurer could not have availed Mr Rahimi of any defence. Nor does the fact that the attempted fraud was unsuccessful (ground 17) make any difference to Mr Rahimi's criminal liability.
Grounds 7, 12 and 17 are without merit.
Whether Mr Rahimi understood the plea - ground 10
Ground 10 relies on two matters in support of the assertion that Mr Rahimi did not understand the nature and effect of his plea of guilty. First, Mr Rahimi submits that 'he speaks Farsi in his house and has a strong Persian accent' and, secondly, the 'plea was too vague', in that the 'intention, the name of the victim or the amount was not mentioned in the plea'.
There is no merit in these submissions.
First, while there have been occasions upon which, since being sentenced, Mr Rahimi has requested, and been provided with, an interpreter, there is no evidence to support the conclusion that he did not have a sufficient command of English to understand the nature and effect of his plea.
Mr Rahimi has lived in Australia since he was 18 years of age (he was 31 years of age as at the date of sentence). He completed an electrical apprenticeship in Western Australia, has run his own business and completed diplomas in business management and building construction at TAFE. Mr Rahimi participated quite ably in the interviews with the detectives, which were conducted in English. He advised the detectives that he could read and write English and that he did not need an interpreter.
Secondly, none of the matters referred to as being 'vague' formed part of the elements of the charge to which Mr Rahimi pleaded guilty. As to his intention, it is clear that Mr Rahimi well understood that he pleaded guilty on the basis that he intended to cause 'smoke damage' to the building. Indeed, that was the whole basis for his application on 4 May 2018 to change his plea.
Significantly, the submissions in support of ground 10 do not identify any matter that would have been relevant to Mr Rahimi's guilt for the offence under s 444(1)(a) of the Criminal Code, that Mr Rahimi failed to understand at the time of his plea.
Ground 10 is without merit.
Alleged factual errors - ground 11
Ground 11 asserts that Fiannaca J made a number of factual errors as a result of 'irrelevant, forged, unreliable and invalid material'. The short answer to this ground is that none of the material relied upon by the learned sentencing judge for the purpose of sentence is relevant to the entry of the conviction following Mr Rahimi's plea of guilty. It could not demonstrate any miscarriage of justice as a consequence of that guilty plea.
The slightly longer answer to ground 11 is that this Court has already dismissed an appeal by Mr Rahimi against his sentence.[10] In the course of that appeal Mr Rahimi alleged that the learned sentencing judge made a number of errors of fact. All of those allegations were rejected. There is no basis upon which Mr Rahimi can now allege the same, or additional errors, by the learned sentencing judge under the guise of an appeal against conviction.
[10] NI v The State of Western Australia [2020] WASCA 78.
Ground 11 is without merit.
Allegation of bias - ground 13
The contention, by ground 13, that the learned sentencing judge displayed bias, is wholly misconceived.
Mr Rahimi relies upon the fact that, in acceding to Mr Rahimi's application to withdraw his earlier plea of guilty that he destroyed the building and to plead to a substitute charge of damaging the building, the learned sentencing judge 'was expecting and speculating that [Mr Rahimi] would plead to a new count'. Mr Rahimi also refers to the fact that the learned sentencing judge referred to the 'basis for sentencing' in relation to the new charge before a conviction had been recorded. These matters, Mr Rahimi submitted, manifested bias on his Honour's part.
Of course, they do nothing of the sort. The learned sentencing judge knew that Mr Rahimi would plead guilty to the substitute charge, because that was precisely the reason that the application was made to his Honour. Mr Rahimi had already pleaded guilty to 'destroying' the building and was before the Court on 4 May 2018 for the purpose of sentence on that charge. In the absence of the application made to his Honour to amend the indictment, he would have been sentenced for 'destroying' the building.
The learned sentencing judge was under no misapprehension as to what was taking place on 4 May 2018. Nor, in our view, was Mr Rahimi.
Ground 13 is without merit.
Conclusion as to CACR 15 of 2022
None of the grounds of appeal in CACR 15 of 2022 have merit. Leave to appeal should be refused in relation to all of the grounds of appeal, the application for an extension of time should be refused and the appeal should be dismissed.
We turn then to CACR 113 of 2022.
CACR 113 of 2022 - disposition
CACR 113 of 2022 concerns Mr Rahimi's conviction for attempting to gain a benefit by fraud, contrary to s 409(1)(c) of the Criminal Code.
Mr Rahimi's conviction for that offence was entered by Hall J on 18 December 2017 following Mr Rahimi's plea of guilty. The only other step taken by Hall J on that day was to adjourn the proceedings in relation to Mr Rahimi for sentence. After 18 December 2017, Hall J had no further involvement in the proceedings against Mr Rahimi. While Hall J heard the trial of issues in relation to Mr Pourzand (at which Mr Rahimi gave evidence) and sentenced Mr Pourzand on 15 April 2019, Hall J made no findings in the proceedings as they related to Mr Rahimi.
This is significant because most of the 18 grounds of appeal in CACR 113 of 2022 allege errors on the part of Hall J. Save that his Honour entered convictions following Mr Rahimi's pleas of guilty, however, Hall J did not make any decisions in relation to the proceedings against Mr Rahimi that could have been in error. Insofar as Mr Rahimi's submissions are intended to refer to findings made by Hall J in sentencing Mr Pourzand (as to which it is not clear), those findings are irrelevant to Mr Rahimi's conviction for attempting to gain a benefit by fraud.
Again, the grounds of appeal in CACR 113 of 2022 can be addressed under a number of broad headings:
(a)Grounds 1, 12 and 18: these grounds again rely upon Goldenwest Properties' ownership of the building and contend that Mr Pourzand could not have made a claim on the insurer;
(b)Grounds 2, 3, 4, 5, 10, 11 and 17: by these grounds Mr Rahimi variously maintains that Hall J erred in accepting the plea of guilty to attempting to gain a benefit by fraud, for example, by proceeding on the incorrect factual basis that Mr Rahimi intended to aid Mr Pourzand's fraud by destroying (rather than damaging) the building and that Mr Rahimi's intention could not have been to aid Mr Pourzand in making a claim for the destruction of the building;
(c)Ground 6: this ground contends that certain evidence in the prosecution brief was 'invalid' and should never have been accepted or considered by Hall J in convicting Mr Rahimi;
(d)Ground 7: this ground is in similar terms to ground 10 in CACR 15 of 2022 and maintains that Mr Rahimi did not understand the nature and effect of his plea of guilty;
(e)Ground 8: this ground seeks to rely upon evidence that Mr Rahimi gave in the trial of issues for the purposes of Mr Pourzand's sentencing, and prospective expert evidence, to the effect that Iranian culture was such that he could not have acted with the intention of aiding Mr Pourzand;
(f)Ground 9: this ground alleges bias on the part of Hall J;
(g)Ground 13: this ground contends that Mr Rahimi's lawyers provided him with ineffective and wrong advice;
(h)Grounds 14 and 16: these grounds repeat grounds 5 and 14 in CACR 15 of 2022 in relation to the 'unidentified men'; and
(i)Ground 15: this ground contends that the indictment was not signed or filed.
As in CACR 15 of 2022, none of these grounds have any merit.
Goldenwest Properties' ownership of the building - grounds 1, 12 and 18
We have already addressed why Mr Rahimi's reliance upon Goldenwest Properties' ownership of the building is misconceived. Similarly, the contention made by ground 1 in CACR 113 of 2022 that, contrary to the facts for the purpose of sentence, Mr Pourzand was not an insured under the policy of insurance for the building is simply wrong.
There is no evidence to support the contention that Mr Pourzand was not an insured under the policy or entitled to make a claim under the policy. As we have already determined, the additional evidence sought to be adduced by Mr Rahimi did not support that contention. On the contrary, the evidence sought to be adduced by Mr Rahimi, including the policy itself, confirmed that Mr Pourzand and his wife, and Goldenwest Properties as trustee for a number of family trusts, were all 'insured' under the policy.
Grounds 1, 12 and 18 are without merit.
Mr Rahimi's intention - grounds 2, 3, 4, 5, 10, 11 and 17
All of these grounds, in one form or another, appear to rest upon the proposition that if, as he maintained for the purpose of sentence, Mr Rahimi only intended to cause $600,000 to $700,000 of damage to the building, while Mr Pourzand intended that the fraudulent insurance claim would be for the full value of the building, he could not be guilty of aiding Mr Pourzand in the attempted fraud. This, Mr Rahimi maintained, was because, once his plea to the arson was changed from one of 'destroying' to 'damaging' the building, 'the mens rea and its legal consequences [were] against the evidence'.
The proposition is as misconceived as it is ingenious. While no doubt it was a necessary element of the offence of attempting to gain a benefit by fraud that Mr Rahimi knew that Mr Pourzand intended to make a fraudulent insurance claim (as to which there could be no doubt), it was not an element of the offence that Mr Rahimi have actual knowledge of the precise terms in which the claim was made. Mr Rahimi's state of mind as to the likely amount of the claim was a matter properly going to sentence.
The learned trial judge recognised the significance of Mr Rahimi's state of mind for the purpose of sentence. His Honour said:
[W]hile I accept that at the time you committed the arson your belief was that the claim would be for $600,000 to $700,000, you became aware that the actual damage to the building was in the millions of dollars and that Mr Pourzand was going to pursue a claim for all the damage. The attempted fraud was a continuing offence and the only reasonable inference from the materials on the brief is that you expected the claim would be made and pursued by Mr Pourzand. He had made that clear to you when he told you he hoped they would pull the building down and said you had done a good job.
Grounds 2, 3, 4, 5, 10, 11 and 17 are without merit.
'Invalid' evidence - ground 6
Ground 6 contends that Hall J erred in law by convicting Mr Rahimi using 'invalid evidence'. Mr Rahimi submitted that his Honour should not have accepted any of the admissions in his record of interview in light of his alleged 'inability to speak English' and relied upon the fact that one of the images taken from Bunnings was 'enhanced'.
The short answer to this ground is, of course, that Hall J did not enter the conviction against Mr Rahimi for attempting to gain a benefit by fraud on the basis of any evidence. His Honour entered the conviction on the basis of Mr Rahimi's plea of guilty.
More generally, however, there is no basis to suggest that any of the evidence referred to by Mr Rahimi was 'invalid' (by which we understand him to mean inauthentic or unreliable). As we have said above, Mr Rahimi participated quite ably in the interviews with police, which were conducted in English, and advised the detectives that he did not need an interpreter. Nor is there anything to suggest that the reference to a photograph being 'enhanced' should be regarded as sinister.
Ground 6 is without merit.
Whether Mr Rahimi understood the plea - ground 7
The submissions in support of the contention that Mr Rahimi did not understand the nature and effect of his plea of guilty of attempting to gain a benefit by fraud are, in substance, the same as those in relation to ground 10 in CACR 15 of 2022, namely, that Mr Rahimi 'speaks Farsi at home' and that the plea was 'vague and unclear', in that the amount of the fraud, the name of the victim and the nature of Mr Rahimi's participation were not mentioned in the plea.
This ground fails for the same reasons as ground 10 in CACR 15 of 2022. First, there is no evidence to support the conclusion that Mr Rahimi did not have sufficient command of English to understand the nature and effect of his plea and, secondly, none of the matters referred to as being 'vague' formed part of the elements of the charge to which Mr Rahimi pleaded guilty. Inasmuch as it was relevant that Mr Rahimi submits that he was not aware of the full amount the subject of the insurance claim, that was a matter relevant to sentence and was properly addressed by the learned sentencing judge.
There is no merit in ground 7.
Evidence as to the effect of Iranian culture - ground 8
Further to ground 8, Mr Rahimi submitted that questions asked of him by Mr Pourzand's counsel at the trial of issues 'uncovered Iranic [sic - Iranian] cultural matters that deeply affected [Mr Rahimi] to react to Mr Pourzand and commit to damaging the building'. The 'cultural matter' referred to in the extract from Mr Rahimi's evidence was, allegedly, that 'we cannot say no to each other'.
Self‑evidently, a cultural predilection for agreeableness (if that be the case) may explain why a person might commit an offence at the request, or the behest, of another person. However, such a cultural factor could not, at least in the overwhelming majority of cases, affect the capacity of a person to form the necessary intention to aid the other person in committing the offence. There is nothing whatsoever in the evidence of Mr Rahimi at the trial of issues to support that he lacked such a capacity in relation to the offence of attempting to gain a benefit by fraud.
Ground 8 is without merit.
Allegation of bias - ground 9
Ground 9 contends that the following question asked by Hall J on 18 December 2017 manifested bias:
All right. So, Ms Crouch, have you got a date? Have you been given a date for sentencing Mr Rahimi?
Mr Rahimi submits that it 'was not open to Hall J to assume that the accused was guilty and was going to be sentenced'.
The submission is wholly misconceived. It was, in the circumstances, clearly open to Hall J to assume, on 18 December 2017, that Mr Rahimi was guilty and was going to be sentenced. In that regard, Mr Rahimi had already pleaded guilty in the Magistrates Court to one count of criminal destruction of property by fire and one count of attempting to gain a benefit by fraud. His appearance before Hall J on 18 December 2017 was in relation to 'fast‑track' guilty pleas. It would be surprising, in those circumstances, if Hall J did not 'assume' that Mr Rahimi was guilty and was going to be sentenced.
Ground 9 is without merit.
Alleged wrong advice - ground 13
Ground 13 contends that Mr Rahimi's lawyers provided him with ineffective and wrong advice. Other than those lawyers declining to make a submission that would have been inappropriate in any event, the submissions in support of this ground simply allege that Mr Rahimi's lawyers were wrong not to raise each of the matters raised by the other grounds in the appeal. Clearly, it is not wrong for a lawyer to 'fail' to provide advice, or to make submissions, that have no merit. Nor is there any substance to the claim that the lawyers' advice was ineffective.
Ground 13 is, therefore, also without merit.
The 'unidentified men' - grounds 14 and 16
Grounds 14 and 16 repeat grounds 5 and 14 in CACR 15 of 2022 in relation to the 'unidentified men'. For the reasons set out in relation to those grounds, grounds 14 and 16 are also without merit.
Indictment not signed or filed - ground 15
This ground is misconceived. The indictment, in relation to which Mr Rahimi was arraigned on 18 December 2017, was signed by a Senior State Prosecutor and filed with the Court. Mr Rahimi is, perhaps, in relation to this ground referring to another copy of the indictment, which was included in his application to adduce additional evidence and which was not signed.
Ground 15 is without merit.
Conclusion as to CACR 113 of 2022
The grounds of appeal in CACR 113 of 2022 are all without merit. Leave to appeal should be refused in relation to all of the grounds of appeal, the application for an extension of time should be refused and the appeal should be dismissed.
Conclusion and orders
Mr Rahimi has not identified any plausible basis to contend that there has been a miscarriage of justice as a consequence of his convictions, on his pleas of guilty, for the offences of criminal damage of property by fire, contrary to s 444(1)(a) of the Criminal Code, and attempting to gain a benefit by fraud, contrary to s 409(1)(c) of the Criminal Code.
We would make the following orders in each appeal:
CACR 15 of 2022
1.The two applications to adduce additional evidence on the appeal filed on 2 August 2022 are refused.
2.The application to adduce additional evidence on the appeal filed on 20 March 2023 is refused.
3.The application to adduce additional evidence on the appeal filed on 18 July 2023 is refused.
4.Leave to appeal on grounds 1 to 17 is refused.
5.The application for an extension of time within which to appeal is refused.
6.The appeal is dismissed.
CACR 113 of 2022
1.The application to adduce additional evidence on the appeal filed on 10 January 2023 is refused.
2.Leave to appeal on grounds 1 to 18 is refused.
3.The application for an extension of time within which to appeal is refused.
4.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ST
Associate to the Honourable Justice Mazza
8 FEBRUARY 2024
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