Al-Bawi v The Queen
[2010] NZCA 330
•27 July 2010
IN THE COURT OF APPEAL OF NEW ZEALAND
CA190/2008
[2010] NZCA 330BETWEENSALAM MANSOOR ABDELABBUS AL-BAWI
Appellant
ANDTHE QUEEN
Respondent
Hearing:5 May 2010
Court:Chambers, Potter and Miller JJ
Counsel:P T R Heaslip and G D Packer for Appellant
D G Johnstone for Respondent
Judgment:27 July 2010 at 3.30 pm
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Chambers J)
Guilty pleas to immigration-related offences
[1] Salam Mansoor Abdelabbus Al-Bawi was born in Iraq in 1975. He claims that in 1994 he was arrested in Iraq as a result of an internal security crack-down and held in a detention centre, where he was subjected to inhumane treatment and torture. His father subsequently obtained his release by bribing prison officials. Mr Al-Bawi then made his way to Denmark where he made a claim for refugee status.
[2] While in Denmark, Mr Al-Bawi began to fear for his life. He says he was aware Iraqi agents were operating in Denmark. He decided to adopt a false identity and then to obtain a false Danish passport in his new name. That name was John Jacob Abrahim Joseph. He purported to adopt a new date of birth, 19 April 1980.
[3] Mr Al-Bawi eventually found his way to New Zealand, arriving in April 2000. He used his Joseph persona. He then applied for refugee status. He disclosed he had arrived in New Zealand on a false passport, but he did not reveal that his Joseph persona was false. In June 2001 the New Zealand Immigration Service advised “Mr Joseph” that his claim to refugee status had been approved. They advised he should now apply for residence. Mr Al-Bawi did so apply in April 2003 (after the fall of Baghdad to the United States-led forces). In due course, “Mr Joseph” was granted citizenship and obtained a New Zealand passport.
[4] In 2005, the New Zealand Police became suspicious as to whether “Mr Joseph” was who he said he was. In due course, the police and NZIS discovered that “Mr Joseph” was in reality Mr Al-Bawi. In February 2006, Mr Al‑Bawi was arrested and charged with various immigration-related offences. Mr Al-Bawi retained as his lawyer David Ryken.
[5] In due course Mr Ryken advised the prosecutor that Mr Al-Bawi would be prepared to plead guilty to some of the charges if the Crown withdrew the balance. A deal was struck. On 7 November 2007 Mr Al-Bawi pleaded guilty to four counts:
(a)Making a false statutory declaration (namely, that he had never been charged with or found guilty of any offences in any country), contrary to s 111 of the Crimes Act 1961;
(b)Using an application for residence with intent to defraud, contrary to s 229A of the Crimes Act;
(c)Knowingly submitting a false citizenship application, contrary to s 27 of the Citizenship Act 1977, and
(d)Making a written statement, known to be false or misleading in a material particular, for the purpose of procuring a New Zealand passport, contrary to s 32 of the Passports Act 1992.
[6] Judge Field sentenced Mr Al-Bawi to six months’ home detention on 18 March 2008.
[7] Subsequently Mr Al-Bawi appealed to this Court on the basis that he had entered his guilty pleas in error. As a result, the convictions were unsafe; a miscarriage of justice had occurred.
Issue on the appeal
[8] Initially Mr Heaslip, for Mr Al-Bawi on this appeal, raised a number of grounds of appeal. But, shortly prior to the hearing, he advised that only one was to be pursued. This was that the guilty pleas had been entered mistakenly on the basis of Mr Ryken’s inappropriate advice, with the consequence that a miscarriage of justice had resulted. In assessing that ground of appeal, we had the benefit of hearing both Mr Al-Bawi and Mr Ryken under cross-examination.
Were the guilty pleas entered mistakenly on the basis of inappropriate advice?
[9] Counsel were agreed that the leading authority was R v Le Page.[1] In that case, this Court held that “only in exceptional circumstances” would an appeal against conviction be entertained following entry of a plea of guilty. This Court held that an appellant had to show that a miscarriage of justice would result if his or her conviction was not overturned. This Court said:[2]
Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned.
[1] R v Le Page [2005] 2 NZLR 845 (CA).
[2] At [16].
[10] The Court then went on to identify “three broad situations” in which a miscarriage of justice might arise. The first of those situations is the one on which Mr Al-Bawi relied. The Court expressed that situation in these terms:[3]
The first is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge. These are situations where the plea is shown to be vitiated by genuine misunderstanding or mistake. Where an accused is represented by counsel at the time a plea is entered, it may be difficult indeed to establish a vitiating element.
[3] At [17].
[11] Mr Heaslip submitted that the injustice in the present case arose from Mr Al‑Bawi’s misunderstanding of three matters:
(a)Mr Al-Bawi had a good defence to the four remaining charges, which Mr Ryken did not tell him about;
(b)Mr Al-Bawi believed, on the basis of what Mr Ryken told him, that, if he pleaded guilty, he would be discharged without conviction under s 106 of the Sentencing Act 2002, an outcome which, Mr Heaslip submitted, was never realistic;
(c)After Mr Al-Bawi entered his guilty pleas but prior to sentencing, he expressed disquiet about pleading guilty, but Mr Ryken never told him he could apply to vacate his pleas.
[12] We shall consider those complaints in turn. In passing, we note that Mr Al‑Bawi’s grounds of appeal, at a time when he was represented by Mr Davison QC, contained none of these allegations.
A good defence?
[13] Mr Heaslip submitted that Mr Al-Bawi had a good defence to the charges, namely lack of mens rea or intent. Mr Ryken never discussed that defence with him. In our view, this submission fails for two reasons. First, we are satisfied Mr Ryken discussed the issue of “intent” with Mr Al-Bawi. Secondly, the so-called defence had no chance of success.
[14] As to the former, we accept Mr Ryken’s evidence that he discussed in detail with Mr Al-Bawi the issue of intent and the fact that “the Crown would have to prove its case”. Mr Al-Bawi’s recollection of what Mr Ryken had told him was hazy. We make the general point that where there was a conflict between Mr Ryken’s evidence and Mr Al-Bawi’s, we much prefer and accept Mr Ryken’s. Mr Ryken had a clear recollection of his interactions with Mr Al-Bawi. On many points, it was corroborated by contemporaneous documentation. Mr Al-Bawi’s evidence, on the other hand, was often contradictory and at times completely untrue. Mr Ryken, who is an immigration specialist, impressed us as having dealt with this case in a thoroughly professional way. Indeed, he did very well to persuade the prosecutor to drop a number of the charges. He also did well in keeping Mr Al-Bawi out of prison. Mr Al-Bawi, instead of being grateful for the excellent legal representation he received, now complains he was misled. We do not accept for one minute that he was so misled.
[15] As to the latter point, the suggestion that a defence of lack of mens rea would have succeeded has little merit. Mr Ryken concluded that Mr Al-Bawi had little chance of escaping conviction on the four charges to which he in the end pleaded guilty. We agree completely with Mr Ryken’s assessment. Mr Al-Bawi knew full well that his Joseph persona was entirely fictitious, obtained by corrupt means from Iraqi officials. He knew when he made the various applications and declarations that what he was telling New Zealand officials was untrue on key points. Had he gone to trial, he would have had to give evidence (given the nature of the proposed defence). We have seen him under cross-examination – a much gentler and contracted cross-examination than he probably would have faced at trial. No reasonable jury is likely to have accepted the argument that he honestly believed he was justified in his actions by reason of fears for his family back in Iraq.
A discharge under s 106?
[16] Mr Heaslip submitted that Mr Al-Bawi believed, on the basis of what Mr Ryken told him, that, if he pleaded guilty, he would be discharged without conviction under s 106 of the Sentencing Act. Mr Heaslip submitted that a discharge without conviction was never realistic in this case. Accordingly, the guilty pleas were entered mistakenly.
[17] This submission fails on the facts as we find them. Mr Ryken said he had told Mr Al-Bawi that, if he pleaded guilty, he (Mr Ryken) was confident he could persuade the sentencing judge not to impose a sentence of imprisonment but instead to impose home detention or a community-based sentence. Were Mr Al-Bawi convicted following trial, imprisonment was more likely, as then, of course, he would not reap the benefit of a guilty plea discount.
[18] Mr Ryken’s advice proved accurate. At sentencing, the prosecutor submitted that the starting point for this offending was three years’ imprisonment, with which Judge Field agreed.[4] The Judge then knocked off a year for the guilty pleas. He then allowed a further six months on account of Mr Al-Bawi’s state of health, family responsibilities, personal circumstances, and expressions of remorse. That brought the sentence down to “about 18 months”.[5] The Judge then went on to consider whether this was an appropriate case for home detention. He concluded it was. But for the guilty pleas, the alternative sentence (18 months’ imprisonment) would have been, on the Judge’s reasoning, about two and a half years’ imprisonment. That would have made it much more unlikely that a judge would have considered home detention as an appropriate alternative to imprisonment.[6]
[4] R v Al-Bawi DC Auckland CRI-2006-004-13465, 18 March 2008 at [24].
[5] At [25]-[26].
[6] We accept that technically Mr Al-Bawi would still have been eligible for home detention, notwithstanding the fact the alternative was not “a short-term sentence of imprisonment”, as Mr Al‑Bawi’s offending occurred prior to 1 October 2007, with the consequence that he got the benefit of the laxer rules under s 57 of the Sentencing Amendment Act 2007: see R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [19]-[36].
[19] Mr Al-Bawi was keen for Mr Ryken to attempt to achieve a discharge without conviction. Mr Ryken agreed to put submissions before the Judge, but he never held that out as a likely outcome, let alone guaranteed it. On the contrary, in an email Mr Ryken sent to Mr Al-Bawi and his then partner shortly before the pleas of guilty were entered, he made it clear that the Crown might well be seeking a sentence of imprisonment, which he would be doing his best to refute.
[20] Judge Field, in his sentencing notes, referred to Mr Ryken’s submissions as to why there should be a discharge without conviction. He concluded, however:[7]
I have to say that this case comes nowhere near the threshold laid down by Parliament for discharges without conviction. The offending was serious, it was prolonged and I cannot take the view that the consequences would be out of all proportion to its gravity. A discharge in these circumstances, in my view, is simply not appropriate.
[7] At [19].
[21] That was very much in line with Mr Ryken’s advice to Mr Al-Bawi. He gave the s 106 submission his best shot – but it was always a long shot. Any criminal lawyer would have realised that. We are quite satisfied that Mr Ryken did not tell Mr Al-Bawi that, if he pleaded guilty, he would be discharged without conviction. We are also satisfied that Mr Al-Bawi appreciated that a s 106 discharge, while it would be sought, was a long shot.
Vacating pleas of guilty
[22] Mr Heaslip submitted that Mr Al-Bawi, after he had entered his guilty pleas but prior to sentencing, expressed disquiet about pleading guilty, but Mr Ryken never told him he could apply to vacate his pleas. The submission was that, had Mr Al-Bawi applied to vacate his pleas, such application would have succeeded. He would then have been able to go to trial.
[23]
The problem with this submission is there is no evidence to support it. Mr Ryken said he was not aware of Mr Al-Bawi having second thoughts about his pleas of guilty. There is no general obligation on defence counsel to advise a client
who has pleaded guilty of his or her right to make an application to vacate the plea, at least in the absence of circumstances which indicate the client is having second thoughts about the plea.
[24] Further, Mr Al-Bawi’s failure on the earlier points dooms this point as well. If he entered his guilty pleas following good advice and in circumstances where he had no defence, as we have found, the District Court would not have permitted him to vacate his guilty pleas in any event.
Result
[25] We do not accept that Mr Ryken gave inappropriate or incomplete advice. We are satisfied that Mr Al-Bawi fully appreciated the merits of his position. He made an informed decision to plead guilty. He was not acting under any misunderstanding or mistake when he made that decision. On the contrary, it was a very sensible decision he made. As a result, the prosecutor withdrew a number of charges. In addition, Mr Al-Bawi reaped the benefit of a guilty plea discount, which was sufficient to bring him within range of home detention. Had he not pleaded guilty and been convicted, imprisonment was the likely penalty. Avoiding prison was of great significance to him.
[26] In these circumstances, we are satisfied there has not been a miscarriage of justice. The convictions cannot be impugned. We dismiss the appeal.
Solicitors:
Crown Law Office, Wellington