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Khalid v The Queen [2020] NSWCCA 73

appeal against sentence — conspiring to do acts in preparation for a terrorist act or acts offence contrary to ss 11.5 and 101.6(1) of Commonwealth Criminal Code — original sentence imposed 22 years’ and 6 months imprisonment with a 16 year and 9 month non-parole period — guilty plea — s 16A(2)(g) — sentencing judge erred in not taking into account the utilitarian value of offender’s guilty plea — Xiao error established — 10% utilitarian discount from sentence — re-sentence — nature and circumstances of the offence — s 16A(2)(a) — offence of doing acts in preparation for a terrorist act or acts is an anticipatory offence which enables intervention by law enforcement agencies at much earlier time than commission of a planned offence — in those circumstances, proximity of planned offence, although relevant does not necessarily determine objective seriousness of offence — does not follow from fact that preparatory acts were even in their infancy that offence must be objectively less serious — main focus must be on offender’s conduct and intention at time offence was committed — conspiracy had advanced to the stage of obtaining firearms and ammunition and included consideration of the manner in which to carry out terrorist attacks — fact that conspiracy took place over short period of time did not seem to appeal judge of particular significance in present case, as weapons acquired, possible target considered and meetings occurred between co-conspirators in preparation for terrorist act — planning and preparation not in preliminary stage — contrition — s 16A(2)(f) — appeal judge prepared to accept offender by guilty plea showed some, albeit limited, evidence of contrition and acceptance of responsibility — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — plainly need for both personal and general deterrence — cases like this nature strike at very heart of fabric of society and threaten democratic government and the security of the State and it is critical that those who would seek to undertake such acts be deterred from doing so and those who may contemplate doing so be made aware that offences warrant severe punishment — age — s 16A(2)(m) — offender at time of offence was 20 years old and still a very young person — having regard to role they played and seriousness of offence, their age is of limited significant however still taken into account — character — s 16A(2)(m) — the fact that the person who committed the offence is otherwise of good character, whilst relevant, does not loom large in the sentencing exercise — rehabilitation — s 16A(2)(n) — prospects of rehabilitation dependent upon offender renouncing extremist views and onus on offender to demonstrate they had done so — sentencing judge’s view that offender’s plea may be taken as some indication of stepping away from their previous views may be fortified to some extent by offender’s good behaviour in custody for period of over 2 years — in absence of evidence from offender of question of whether they have renounced their views, the question of rehabilitation remains uncertain — hardship to the offender — appeal judge taken into account extremely onerous conditions of custody imposed on applicant and the fact that these conditions are likely to continue for foreseeable future — sentence imposed 20 years’ imprisonment with a 15 year non-parole period
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