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Mohamed v The King [2023] VSCA 177

See full judgment: Austlii.

The offender was sentenced following conviction for 1 count of attempting to engage in a terrorist act contrary to ss 11.1(1) and 101.1(1) of the Commonwealth Criminal Code and 1 count of engaging in a terrorist act contrary to s 101.1(1) of the Commonwealth Criminal Code. Offender later sentenced following conviction for an additional count of conspiring to do acts in preparation for or planning a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Commonwealth Criminal Code. Original sentences together imposed 38 years imprisonment with a non-parole period of 28 years and 6 months. Offender previously appealed against the second sentence on the ground that the sentencing judge had failed to take into account family hardship. Offender resentenced to 32 years imprisonment with a non-parole period of 24 years. Offender now appeals against the first sentence on the ground that the sentencing judge failed to take into account family hardship.

Family and Dependants: It is conceded by the Crown that the sentencing judge, whose sentence was passed 10 days before Totaan [v the Queen [2022] NSWCCA 75] was handed down, did not take into account family hardship and that, in light of Totaan, was an error. When the Court resentenced offender to a new total effective head sentence and new non-parole period in the first appeal, it imposed a sentence that more than adequately captures the entirety of the offending and the entirety of the relevant factors in mitigation, including the post-Totaan concept of family hardship. Whilst the first sentence failed tot take into account a mildly relevant fact to sentencing, the total effective sentence of 32 years imprisonment with a non-parole period of 24 years is modest indeed for the overall criminality exhibited by offender.

Leave to appeal refused.

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