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R v Biber [2018] NSWSC 535

sentence — entering into foreign State with intent to engage in hostile in activity in that State offence contrary to s 6(1)(a) Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) — nature and circumstances of offence — s 16A(2)(a) — although offence of entering foreign State with intention of engaging in armed hostilities carries same maximum penalty as engaging in armed hostilities, does not say seriousness of offender’s conduct ought to be assessed as if engaged in hostilities —circumstances which may give rise to conviction under s 6 so various that is unhelpful to generalise about conduct covered by section — offence has protean character and objective gravity may vary — as offender did not engage in armed hostilities and returned to Turkey of own volition, offence well below mid-range of seriousness — guilty plea — s 16A(2)(g) — contrition — s 16A(2)(f) — utilitarian benefit of guilty plea is a relevant consideration — guilty plea might also be relevant because might reveal intention to facilitate course of justice or contrition — contrition requires not only formal admission of guilt but acknowledgement of wrongdoing and degree of repentance — offender sought as recently as a month before sentence hearing to portray intentions and involvement as humanitarian and non-violent — not satisfied offender feels any remorse or contrition for offending although plainly regrets consequences for himself and his family — delay — delay of two years and nine months after return to Australia in charging offender — delay not explained but may have been result of operational matters — evidence to establish agreed facts must have been known to prosecuting authorities — delay operated unfairly to offender who when not apprehended on return entitled to assume he was free to resume normal life — delay relevant to prospect of rehabilitation and specific deterrence — specific deterrence — s 16A(2)(j) — rehabilitation — s 16A(2)(n) — offender lived with family for almost three years from return to  arrest — no evidence offender did anything to return to Syria or risk safety of Australian community — substantial indicator of prospects of rehabilitation — difficult to assess prospects of rehabilitation where not satisfied that offender feels remorse or contrition for offending — fact that on release offender will live with family in supportive loving environment relevant to rehabilitation and to ratio of non-parole period — offender sentenced to 4 years’ and 9 months imprisonment with 2 year and 6 month non-parole period
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