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Al-Kutobi and Kiad v R [2023] NSWCCA 155

The offenders were sentenced following pleas of guilty to 1 count of conspiring with each other 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 sentence imposed 20 years of imprisonment with a non-parole period of 15 years. Offenders appealed on the ground that the sentencing judge failed to take into account the utilitarian value of their plea of guilty.

Guilty Plea: The sentencing judge considered a discount for the pleas of guilty indicating a willingness to facilitate the course of justice. Their honour then went on to say ‘there is little difference, if any, in the allowance which I make, were I also to consider objectively the utilitarian benefit of the avoidance of a trial’. The respondent conceded that the sentencing judge should have taken into account the utilitarian value of offenders’ guilty plea, and hence that the single ground of appeal advanced by offenders was established. The pleas were entered late. They were also followed by a lengthy disputed facts hearing on sentence that took a number of days. Having said that, the estimate of the trial was between 6 and 8 weeks, and no doubt great deal of time, money, and effort would have been expended if it had needed to have been conducted. The appropriate utilitarian discount is 10% for each.

Leave to appeal granted. Appeal allowed. Offenders resentenced to 16 years of imprisonment with a non-parole period of 12 years.

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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