ATOSH MOHAMED AWEIS AND THE KING
[2024] NZCA 680
•18 December 2024 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA187/2024 |
| BETWEEN | ATOSH MOHAMED AWEIS |
| AND | THE KING |
| Court: | Thomas, Peters and Muir JJ |
Counsel: | H G de Groot for Applicant |
Judgment: | 18 December 2024 at 3.00 pm |
JUDGMENT OF THE COURT
The application for an extension of time to appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Peters J)
Mr Aweis seeks an extension of time in which to appeal against his conviction and sentence.
In early-2007, Mr Aweis pleaded guilty to wounding with intent to cause grievous bodily harm. He committed the offending in June 2006. In April 2007, MacKenzie J sentenced Mr Aweis to three years and six months’ imprisonment, to be served as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.[1]
[1]R v Aweis HC Wellington CRI-2006-085-3994, 20 April 2007 [sentencing notes] at [23]. The order was made pursuant to the Criminal Procedure (Mentally Impaired Persons) Act 2003, s 34(1)(a)(i). That Mr Aweis has served this sentence is no barrier to an appeal.
If Mr Aweis succeeds in obtaining an extension of time, he proposes to seek a discharge without conviction, pursuant to ss 106 and 107 of the Sentencing Act 2002. Mr Aweis did not seek a discharge at his sentencing before MacKenzie J but submits, correctly, that this omission does not inevitably preclude this Court granting a discharge on appeal.[2]
[2]Bedford v R [2021] NZCA 395.
On 26 September 2024, Mallon J directed that the application for extension be determined on the papers, and separately from any substantive appeal.
Background
In 2000, following his arrest on other charges (which we understand were withdrawn), Mr Aweis was diagnosed with paranoid schizophrenia. Mr Aweis was initially treated as an inpatient, and then discharged on medication prescribed to manage his illness.
Mr Aweis was hospitalised again in 2002, following another episode, and subsequently discharged into the care of community mental health services. Mr Aweis continued to be prescribed medication to help manage his illness.
Sometime in 2006, Mr Aweis ceased taking his medication. In an affirmation filed in support of his application, Mr Aweis says he was working in a supermarket at the time, and considered the side effects of the medication were having an adverse effect on his performance at work.
It was in this unmedicated state that Mr Aweis committed the offending that he now wishes to appeal.
MacKenzie J described the offending as follows:[3]
[2] The facts are that you and your victim were friends and neighbours … and were living together in the same complex. There was a dispute between you. The upshot of that was that as the victim left his flat one morning he noticed you standing outside, you said that you would kill him, he continued to walk towards the taxi which he was driving, at which point you went to your flat, retrieved a knife, returning to the carpark area, approached the victim and stabbed him, causing him to fall to the ground at which point you continued stabbing him, he attempting to defend himself as a result of which he received several stab wounds. He was able to get into his taxi and lock himself in and became unconscious and was subsequently assisted by residents of the building.
[3] The wounds which were imposed were sufficiently severe to require the hospitalisation of the victim for some six days. …
Medical evidence
[3]Sentencing notes, above n 1.
The Judge received several psychiatric reports for sentencing purposes. The gist of these reports was that Mr Aweis was fit to plead; a defence of insanity was not available; Mr Aweis’ mental state was the major contributing factor to his offending (a matter recognised at sentencing); and that Mr Aweis’ illness could be controlled by medication.
Taking these matters into account and Mr Aweis’ guilty plea, the Judge reduced his initial starting point of five years and six months by two years, so as to reach the three years and six months’ imprisonment imposed.[4] Mr de Groot, counsel for Mr Aweis, advises this constituted approximately a 36 per cent discount. Mr de Groot submits this reduction is modest by current standards.
[4]At [14] and [18].
As we have said, the Judge ordered Mr Aweis to serve his sentence as a special patient. It is implicit in that order that the Judge was satisfied Mr Aweis was mentally impaired and required compulsory treatment or care.[5]
Matters post-2007
[5]Criminal Procedure (Mentally Impaired Persons) Act, s 34.
Mr Aweis has not offended since 2007, although the evidence before us is to the effect that there were incidents in 2015 and 2016. However, Mr Aweis’ medication has now been “fine-tuned” to such a point that he has been discharged from community mental health services to the care of his general practitioner.
Principles governing applications for an extension of time
Mr Aweis’ application for an extension of time in which to appeal falls to be determined under the (now repealed) s 388 of the Crimes Act 1961.
The overall determination for the court is what interests of justice require.[6] The court must exercise its discretion in accordance with the underlying policy of the legislation, which recognises the public interest in finality of litigation. This may need to be balanced against the interest of the individual applicant in having the conviction reviewed. Specific considerations to be taken into account in the court’s assessment include:[7]
… the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.
Submissions
[6]R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee[2006] 3 NZLR 42 (CA) at [95]–[97].
[7]R v Knight, above n 6, at 589.
Mr de Groot submits that the interests of justice are such that an extension of time should be granted.
As to delay, Mr Aweis has been seeking to pursue an appeal since 2015 but has been thwarted by events beyond his control, namely an inability to identify a lawyer willing to act for him and/or willing to make this application and/or an inability to secure legal aid.
Mr de Groot submits there are compelling reasons to extend time so that Mr Aweis may appeal. There is evidence the conviction is affecting Mr Aweis’ work prospects. For instance, Mr Aweis says in his affirmation that New World withdrew an offer of employment following a check on his criminal history. Nor is Mr Aweis able to work as an Uber driver. There is also evidence that the conviction will affect Mr Aweis’ ability to travel to see his mother who is now living in Australia, and his brothers and other family who are also living overseas.
Mr de Groot acknowledges that the offending was serious. However, he submits that it was the product of, or caused by, Mr Aweis’ illness. That illness is now controlled, and, given that, it is unlikely Mr Aweis will reoffend. Accordingly, Mr de Groot submits that, on appeal, this Court might be persuaded to assess the gravity of the offending as “moderately serious” as opposed to the “serious” categorisation that would otherwise be applied. If so, the consequences of conviction are such that an appeal to this Court seeking a discharge without conviction would have prospects of success.
Also, an appeal would have no impact on others and nor would there be prejudice to the Crown, as Mr Aweis is not seeking a retrial.
The Crown opposes the application. It submits the proposed appeal has little merit. Although Mr Aweis’ condition mitigates his culpability, it does not eliminate it. The offending was serious and the victim fortunate to survive. The consequences that Mr Aweis proposes to advance on appeal are inevitable and not out of all proportion to the gravity of the offending.
The Crown also submits the delay is insufficiently explained; there must be finality in litigation; and the judicial system would be under considerable strain if appellants were frequently allowed to appeal years out of time.
Discussion
The critical point for this application is the prospects of success on appeal if we were to extend time.
Mr de Groot is correct that, in determining the gravity of offending for the purposes of ss 106 and 107 of the Sentencing Act, the Court may take all relevant matters into account, and these would include that offending has been the product of psychiatric illness, whether in whole or in part, and the prospects of reoffending, or the lack thereof.
While Mr de Groot referred us to J (CA32/2021) v R as an example of the difficulty in forecasting employment consequences, it also useful in its approach to discharges without conviction where the offending has occurred as a direct result of mental health issues.[8] In that case, this Court granted J leave to bring a second appeal against a refusal to grant a discharge without conviction, and then allowed the appeal itself. J had taken an axe to a liquor store, placed it on the counter and demanded alcohol and cigarettes.[9] She pleaded guilty to demanding with menaces.[10] There was no dispute that J was in a manic phase of an established and diagnosed bipolar affective disorder at the time of the offending. The Court accepted the offending would not have occurred otherwise, and there was little prospect of reoffending.[11] These, and other matters, led the Court to assess the gravity of the offending as low and to grant the discharge.[12]
[8]J (CA2/2021) v R [2021] NZCA 690.
[9]At [6].
[10]At [12].
[11]At [38] and [39].
[12]At [41] and [51].
Even accepting Mr de Groot’s submissions as to the consequences of Mr Aweis’ conviction and that there is little prospect of reoffending whilst Mr Aweis is compliant with his medication regime, the fact remains that the offending was extremely serious. That the victim survived was a matter of good luck, and nothing else. As a result, we do not consider that this Court would ever assess the gravity of the offending at a level that would put Mr Aweis within reach of a discharge without conviction.
Given that conclusion, the interests of justice require that we decline this application.
Before ending, we note that we have every sympathy for the position in which Mr Aweis finds himself, and he is to be commended for his compliance with the medication he has been prescribed. That Mr Aweis has now been compliant for a lengthy period is a positive sign that the causes of the 2006 offending are now controlled.
Result
The application for an extension of time to appeal is declined.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
0
0
0