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Booth v Kaya [2020] FCA 25

interim control order application — preparation for incursion into a foreign country for the purpose of engaging in hostile activities offence contrary to ss 11,2A and 119.4(1) of the Commonwealth Criminal Code — original sentence imposed 3 years’ and 8 months imprisonment with a 2 year and 9 month non-parole period — pre-conditions — 4 pre-conditions before interim control order can be made — first condition requires that senior AFP member has requested interim control order in accordance with s 104.3 of Commonwealth Criminal Code, plainly satisfied — second condition is that Court has received and considered such further information (if any)as Court requires, not applicable to this application as Court did not require further information — third pre-condition is subject of offender’s opposition to making of interim control order — fourth pre-condition are relevant matters Court must have regard to in determining whether obligations imposed on offender are reasonably necessary, reasonably appropriate and adapted to the relevant purpose — offence relating to terrorism — in judge’s opinion it would be anomalous to construe s 104.1 of Commonwealth Criminal Code as requiring in the case of conviction in Australia for contravention of s 119.4 of Commonwealth Criminal Code anything more than proof of conviction — question is whether the offence for which offender convicted may properly be characterised as offence relating to terrorism — relevant offender was demonstrably offence relating to terrorism, as offence involved conduct in Australia that was preparatory to the commission of an offence against s 119.1 of Commonwealth Criminal Code, namely entering a foreign country with the intention to engaging in hostile activity — if offence for which offender has been convicted is as here an offence which by definition involves hostile activity of the kind in which the offender was engaged and which falls within definition of s 117.1 of Commonwealth Criminal Code, it is properly characterised as an offence relating to terrorism — in such circumstances, both unnecessary and undesirable to in effect go behind conviction and consider conduct underlying the conviction for purpose of charactering the offence as one related to terrorism or not — interim control order imposed pursuant to s 104.4 of the Commonwealth Criminal Code
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