See full judgment: Austlii.
The offender was sentenced following conviction for 1 count of attempting to engage in a terrorist attack contrary to ss 11.1(1) and 101.1(1) of the Commonwealth Criminal Code and 1 count of jointly engaging in a terrorist act contrary to ss 11.2A(1) and 101.1(1) of the Commonwealth Criminal Code. Offender was subsequently sentenced following another conviction for 1 count of conspiring to do an act or acts in preparation for or planning a terrorist attack contrary to ss 11.5(1) and 101.6(1) of the Commonwealth Criminal Code. The total effective sentence imposed in respect of all offending was 38 years imprisonment with a non-parole period of 28 years and 6 months. The offender appealed against both sentences on the grounds that the sentencing judge failed to take into account family hardship (first sentence) and that the second sentence was manifestly excessive based on the sentencing judge’s failure to take into account family hardship and their reliance on the impugned first sentence when setting a commencement date for the sentence.
Parity: The Crown conceded that there was very little to distinguish the offender’s sentence from co-offender Mohammed who succeeded in appealing his sentence for similar offending. The effect of family hardship on the sentencing discretion is at best marginal. There being no significant difference between the circumstances of offender and those of Mohamed, the effect of family hardship on the ultimate sentencing disposition is ultimately wrapped up in the question of parity. There is very little to distinguish between offender and Mohamed in terms of the seriousness of their offending, their roles in the offending, prospects of rehabilitation, and the impact of their necessarily long incarceration on their families. The second sentence must be modified to reduce the period of cumulation on the first sentence from 16 years to 10 years.
Family and Dependants: As there is no reasonable prospect that a less severe sentence would be imposed in respect of the first sentence, the extension of time that has been sought to appeal against it will be refused.
Orders: Leave to appeal against the first sentence denied. Leave to appeal against the second sentence granted. Offender resentenced to a new global total effective sentence of 32 years imprisonment with a non-parole period of 24 years.
