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R v Lelikan (No 5) [2019] NSWSC 494

sentence — membership of a terrorist organisation offence contrary to s 102.3(1) of Commonwealth Criminal Codenature and circumstances of offence — s 16A(2)(a) — application of Benbrika v The Queen [2010] VSCA 281 where nature of terrorist organisation relevant to assessment of objective seriousness of offence and moral culpability of offender — fact that group is a specified terrorist organisation is an element of the offence cannot, of itself, inform the seriousness of the offence — process of Minister listing and re-listing terrorist organisations goes to objective seriousness, due to the broad range of organisations that may be specified — must undertake evaluative judgment of nature of acts committed by PKK and underpinning ideology — while PKK has continuously been relisted because it meets broad statutory threshold in s 102.1 of Commonwealth Criminal Code does not amount to determination that PKK is a threat to Australian security — PKK ideology more in common with values of democracy than extremist violent jihad — while support for terrorism is inherently serious, ‘the ideal of self-determination espoused by the PKK is not the most dangerous ideal of our times’ — lowest order of seriousness — antecedents — s 16A(2)(m) — offender’s moral culpability significantly reduced as informal membership innately connected to personal trauma and intergenerational persecution — offender did not engage in any hostile activity — involvement was that of passive, sympathetic observer who sought to chronicle their struggle — satisfied that offender renounced all violent or criminal forms of support for PKK — sympathy and support offender retains may be viewed ‘benignly when understood through the lens of his personal background’ — sentence — imposition of custodial sentence not warranted — offender sentenced to 3 year community correction order (CCO) pursuant to s 8(1) of Crimes (Sentencing Procedure) Act 1999 (NSW)
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