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R v Lelikan [2019] NSWCCA 316

appeal against sentence — membership of a terrorist organisation offence contrary to s 102.3(1) of the Commonwealth Criminal Code — offence relates to organisation Partiya Karkerên Kurdistanê (PKK), at the time a proscribed terrorist organisation within the definition of terrorist organisation in s 102.1 of Commonwealth Criminal Code — original sentence imposed a 3 year community correction order — nature and circumstances of the offence — s 16A(2)(a) — in determining objective seriousness of offence, Benbrika’s “history of organisation is relevant because it informs nature of organisation” may be accepted, but does not follow that consideration extends to merits of organisation’s objectives — no authority in this country to support contrary proposition that Court can assess merits of political ideology of organisation in assessing objective seriousness of offence — legislation does not draw any distinction between terrorist organisations by reference to merits of organisations — to take merits of terrorist organisation into account essentially would involve consideration of ideology of organisation which is matter for legislature in considering whether to declare the organisation a terrorist organisation — not to say history and objectives of organisation cannot be taken into account, as nature of organisation’s past activities and potential future activities relevant to determination of objective seriousness of offence of membership of terrorist organisation — relevant that activities of PKK taken place in relatively confined geographical location and not present direct threat to Australia — relevant that PKK neither advocates nor engages in indiscriminate killing of civilians — however extent to which objective seriousness is lessened by this factor is doubtful — fact that limited class of persons targeted does not mean terrorist acts are not serious — not relevant to objective seriousness that PKK made commitments to international law — more relevant to look at what PKK has done and is proposing — fact that PKK does not recruit children, engage in sexual violence or uses landmines lessens seriousness of joining organisation compared to one that does, but fact remains soldiers, government officials and citizens killed as result of their activities — fact that PKK is well-organised and resourced organisation which has shown intention and capacity to carry out terrorist acts is relevant to objective seriousness — no doubt offender joined organisation and maintained membership with full knowledge of its objectives and methods — moral culpability greater than person who joined with little knowledge of aims and methods — length of time offender remained member and extent of involvement is relevant to assessment of moral culpability — offender’s belief in rightness of the cause does not of itself affect their moral culpability — however fact offender joined as a result of cruel treatment received at hands of Turkish authorities in offender’s youth mitigates that culpability — although sentencing judge stated in effect they could not go behind the listing of the organisation as a terrorist organisation, sentencing judge at least implicitly took into account the “underlying merits” of the PKK cause compared to that of other terrorist organisations — although comparison of acts carried out by PKK compared with those of jihadist organisations were undoubtedly relevant, the fact that underlying ideology may be seen to be more compatible with democratic values does not lessen impact of terrorist acts or their seriousness — irrelevant that classification of PKK as terrorist organisation is contentious — general deterrence — s 16A(2)(ja) — the importance of general deterrence in dealing with offences of this nature needs to be taken into account — sentence — in the exercise of residual discretion, appeal judge did not interfere with the sentence as Director accepted offence middle to low range of seriousness, incorrect conceded consideration of international humanitarian law, Crown stated sentencing judge could look at “nature and quality of organisation”, case conducted on basis whole of evidence before sentencing judge was relevant which was different position to that taken by Director on appeal, and offender been at liberty since charged and has done nothing to suggest sentencing judge’s assessment of character was incorrect and complied with community corrections order
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