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Alou v The Queen [2019] NSWCCA 231

appeal against sentence — aiding, abetting, counselling or procuring the commission of a terrorist act offence contrary to ss 11.2 and 101.1(1) of Commonwealth Criminal Code — original sentence imposed 44 years’ imprisonment with a 33 year non-parole period — rehabilitation — s 16A(2)(n) — sentencing judge not in error by sentencing offender on basis that offender was danger to the community and had ‘grim’ or ‘bleak’ prospects of rehabilitation — sentencing judge not in error by concluding that prospects of rehabilitation would remain poor during ‘very lengthy sentence’ — absence of evidence that there will be any change in prospects of rehabilitation does not mean sentencing judge not obliged to make assessment of prospects of rehabilitation — consideration of Bugmy v The Queen [1990] HCA 18 — Bugmy not authority for proposition that assessment of prospects of rehabilitation cannot be made in circumstances of lengthy head sentence — deterrence — s 16A(2)(ja) — age — s 16A(2)(m) — offender aged 18 years at time of offending — clear authority that significance of punishment, deterrence and community protection means that mitigating factors such as youth and prospects of rehabilitation are given less weight when sentencing for terrorism offences — youth remains relevant factor but will be given less weight in light of seriousness of terrorism offence and in absence of causal link between offender’s age and offence — fact that offender was radicalised at age 17 does not lead to conclusion of causal link between the offence and offender’s youth so as to reduce offender’s moral culpability — continuing detention scheme — sentencing judge not in error by not taking into account as a mitigating factor existence of continuing detention scheme for high risk terrorist offenders that may or may not exist at expiration of sentence — non-parole period — s 19AG — sentencing judge not in error by mechanically fixing the non-parole period rather than determining non-parole period through discretion and fixing it subject to s 19AG — obligation to impose minimum non-parole period in s 19AG(2) does not preclude court from fixing greater non-parole period — s 19AG(3) does allow court when fixing a life sentence to impose a minimum non-parole period which is less than what would be required for a determinate sentence greater than 30 years — imposition of a life sentence simply for the purpose of attracting minimum non-parole period of 22.5 years would be an error of sentencing discretion — nothing incompatible with exercise of judicial power for court to determine non-parole period with regard to statutory requirements — leave to appeal granted — appeal dismissed
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