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Al Maouie v The Queen [2022] NSWCCA 30

The offender was sentenced following a plea of guilty to 1 count of intentionally making a document connected with the preparation for a terrorist act contrary to s 101.5(1) of the Commonwealth Criminal Code. Original sentence imposed 9 years imprisonment with a non-parole period of 6 years and 9 months. Offender appealed on the ground that the sentencing judge did not have regard to the utilitarian value of the plea of guilty. The Crown accepted that error had been demonstrated and the ground of appeal established.  

Nature and Circumstances: Sentencing judge assessed the objective seriousness of offending in ‘the upper range of seriousness’. Offending fell within the mid-range of objective seriousness. Offender’s conduct was a far less significant contribution to the document in the sense that it was considerably less articulate in its terms and, on one available view, incomprehensible standing alone. Offender’s conduct does not achieve much more significance when considered contextually. The offender’s words appeared to be incapable of conveying any discernible meaning to anyone unless tied to the preceding entry, a doubtful proposition at best.  

Guilty Plea: Offender’s plea of guilty was entered 12 days before the commencement of a six-week trial. Offender submitted that even though the plea was late, it responded to a new charge so that a discount higher than 10% to include its utilitarian value should be considered and that a plea of as much as 20% would be appropriate. A discount of 10% originally given to their co-offender was upheld on appeal. Even allowing for the need to incorporate the utilitarian value of the offender’s plea in the assessment of the appropriate discount, a discount of 10% was adequate in the offender’s case.  

Hardship to the Offender: Offender sought to rely on new material regarding their particularly onerous conditions of incarceration. It may be accepted that a court can consider such conditions, and the extent to which they might be harsher than those experienced by the general prison population, as a matter that may, but will not necessarily or inevitably, provide a basis for reducing the sentence to some degree. There must, however, be evidence of the conditions and a sentencing judge cannot assume that the conditions will be harsher based simply on the category of inmate into which the offender fits. These considerations are of limited weight in cases where the harsher or more onerous conditions are a function of the nature of the offending in question. To the extent to which the offender’s custodial conditions are established by the material upon which they relied at the original hearing, and the new material relied upon in this Court, to be more onerous than those experienced by the general prison population, it is appropriate to take it into account on re-sentence. New material of the offender’s disciplinary record in gaol did not materially inform their prospects of rehabilitation and can be put to one side.  

Leave to appeal out of time and leave to appeal granted. Appeal allowed. Original sentence quashed. Offender sentenced to 8 years imprisonment with a non-parole period of 6 years commencing on 23 December 2015 and expiring on 22 December 2021, with a balance of term of 2 years expiring on 22 December 2023.
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