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Khan v The Queen [2022] NSWCCA 47

The offender was sentenced following a conviction of 1 count of engaging in a terrorist act contrary to s 101.1(1) of the Commonwealth Criminal Code. Original sentence imposed 36 years imprisonment with a non-parole period of 27 years. Offender appealed on the grounds that the sentencing judge erred in failing to take into account the extent and severity of the offender’s mental health condition and the extent to which this reduced their moral culpability, and that the sentence was manifestly excessive.  

Victim of Offence: Ordinarily, a witness to an offence would not be categorised as a victim, because the witness is not a target of the offence, either deliberate or otherwise. In the case of a terrorism offence, it is an element or one of the possible elements of the offence, that the offending is committed with the intention of ‘intimidating the public or a section of the public’. Unlike many offences concerned with the physical result of conduct, the victims in a terrorist attack may well be the members of the public, or a section of the public, whom the act was intended to intimate. This would include persons who witness the attack or its aftermath.  

Nature and Circumstances: Offender submitted that if they were to have been charged with attempted murder, the maximum penalty imposed would have been 25 years imprisonment. Such a submission loses sight of the offence. Terrorism, while ultimately concerned with the risk to human life, is fundamentally concerned with the threat to civil society by those persons advancing a political, religious or ideological agenda who intend to intimidate governments or the public. The comparison with attempted murder in circumstances where the terrorist act, which sought to kill, was unsuccessful, is misplaced. The sentencing judge was correct in rejecting the analogy between terrorism and attempted murder. Original sentence was undoubtedly a stern one, but it was not manifestly excessive.  

Mental Condition: The sentencing judge expressly dealt with the effect of the offender’s mental condition on the more onerous conditions of custody and on general deterrence. The sentencing judge took the view that the offender was manipulative and disingenuous in lying to medical practitioners for the purpose of avoiding responsibility and obtaining an acquittal. In circumstances where the offender still held extremist views, was manipulative and their extremist views motivated offending of this kind, then the presence of the mental illness renders protection of society an extremely important aspect. In terrorism offences, protection of society is, generally, an extremely important factor. The offender’s failure to grapple with the effects of the mental illness on the protection of society and their continuing extremist views is fatal to the success of the ground of appeal.  

Leave to appeal granted. Appeal on both grounds dismissed.
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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