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AH v The King [2023] NSWCCA 230

See full judgment: Austlii.

The offender was sentenced following a plea of guilty to 1 count of doing an act in preparation for, or planning, a terrorist act contrary to ss 101.6(1) and 11.5(1) of the Commonwealth Criminal Code. Original sentence imposed 12 years of imprisonment with a non-parole period of 9 years. Offender appealed on the grounds that the sentencing judge erred in the assessment of the objective seriousness of the offence, failed to make findings in relation to the applicant’s subjective case, erred in applying ‘principles applicable to sentencing for terrorism offences’ in an undiscerning way, and that the sentence was manifestly excessive. 

Nature and Circumstances: Although it would have been open to their Honour to have assessed the objective seriousness as being towards the low end of the range, no error is disclosed in the fact that they did not. The sentencing judge’s finding was an intrinsically discretionary one and no error has been established in their Honour’s decision in that regard.

Antecedents: There was a mass of evidence on the subjective aspects of the offending. Despite this, offender’s subjective case was summarised in only a few paragraphs at the conclusion of the reasons. The sentencing judge failed to have explicit regard to mandatory considerations of offender’s prior good character and whether their moral culpability was reduced by their youth and mental illness. It cannot be concluded that consideration of those matters may be implied. That conclusion is strengthened by the sentence in fact imposed.

Leave to appeal granted. Appeal allowed. Offender resentenced to 7 years and 6 months of imprisonment with a non-parole period of 5 years, 7 months and 15 days.

The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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