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Mohamed v The Queen [2022] VSCA 136

The offender was sentenced following conviction for 1 count of attempting to engage in a terrorist act contrary to ss 11.1(1) and 101.1(1) of the Commonwealth Criminal Code, 1 count of engaging in a terrorist act contrary to s 101.1(1) of the Commonwealth Criminal Code. In later proceedings, the offender was sentenced following conviction for 1 count of doing an act or acts in preparation for or planning a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Commonwealth Criminal Code. Total sentence from both proceedings imposed 38 years imprisonment with a non-parole period of 28 years and 6 months. Offender appealed on the grounds that the level of cumulation of the sentences wrongly imposed a ‘crushing sentence’ and that the sentencing judge was in error by failing to take into account hardship to offender’s family and dependants.

Rehabilitation: There is no separate sentencing principle prohibiting the imposition of a ‘crushing’ sentence. Rather, the appeal concerns the sentencing court’s necessary consideration of how best to promote the offender’s rehabilitation. The head sentence infringes the principle of totality; the applicable sentencing objectives can be sufficiently served by a lower head sentence (32 years) and non-parole period (24 years). Given that the offender’s motivation to commit both sets of offences rested entirely on their beliefs about IS, their renunciation of those beliefs is self-evidently of great importance. Accepting the genuineness of offender’s renunciation, as the sentencing judge did, means that the risk of reoffending is very greatly reduced. The total effective sentence of 38 years would almost inevitably ‘induce a feeling of hopelessness’ in offender. The prospect of a prison sentence stretching decades into the future must inevitably affect their incentive for rehabilitation. That is a powerful consideration.

Family and Dependants: The NSWCCA decision in Totaan v The Queen was handed down after the conclusion of argument in the present appeal. The Court will not be reconsidering the correctness of the decision in Markovic v The Queen. Rather, consideration will be governed by the principle of uniform interpretation. This Court should follow Totaan. In the circumstances of this case, family hardship is an issue of minor significance.

Leave to appeal granted. Appeal allowed. Order for cumulation set aside and replaced with an order that 10 years of the second sentence be served cumulatively on the first. Total effective sentence of 32 years imprisonment with a non-parole period of 24 years.
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