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R v Musleh (No 5) [2018] NSWSC 1927

sentence — performing services to promote or support foreign hostile activities offence contrary to s 7(1)(e) of Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) — services performed helped progress movement of 3 co-offenders from Sydney to Syrian Arab Republic via Turkey — services included arranging air tickets, meetings, hotels and foreign currency exchanges and liaising with those who were to meet the group at the Syrian-Turkish border — other offence of acts preparatory to the commission of an offence of entry into foreign state, Syria, with intent to engage in hostile activity in that foreign state by engaging in armed hostilities contrary to ss 7(1)(a) and 6 of Commonwealth Criminal Code taken into account pursuant to s 16AB — nature and circumstances of the offence — s 16A(2)(a) — objective seriousness of offender’s conduct below mid-range — contrition — s 16A(2)(f) — offender’s letter of apology, though expressing regret, seeks to blame others and justify conduct by reference to youth and gullibility — offender was victim and also perpetrator — offender did not give evidence so sentencing judge not prepared to place weight on statements in letter of apology — not prepared to accept returned to Australia because offender felt remorse or contrition — objective facts are consistent with young man wanting to go on adventure to become a hero and fight for just cause but when realised might die in the process, returning to safety of family and home in Sydney — guilty plea — s 16A(2)(g) — not persuaded plea of guilty showed intention to facilitate course of justice — Crown case strong and largely incontrovertible — by pleading guilty offender obtained benefit of rolled-up single charge and fourth charge taken into account pursuant to s 16AB — allow 15% discount for utilitarian value of guilty plea — specific deterrence — s 16A(2)(j) — no need for specific deterrence — offender’s attitude and circumstances changed significantly — appears to have grown up and no longer susceptible to influence of others — general deterrence — s 16A(2)(ja) — need for general deterrence is significant — important to denounce offences to educate community including potential offenders about criminality of foreign fighting as well as preparatory acts or acts of assistance and extent to which commission of such crimes by Australians has potential to harm nation’s international reputation — important to emphasise role of general deterrence and denunciation in sentencing not limited to utilitarian purpose of regulating risks of criminal behaviour — obligation of state through court to express community’s disapproval of offending conduct — retribution — punishment important purpose of sentencing — sentence must take that purpose into account, while acknowledging offender has already suffered for their crimes — offender shunned by those who helped fund his travels as well as members of wider community — s 16AB — offender not to be sentenced for form offence — effect of s 16BA is that Court take into account form offence with view to increasing penalty that would otherwise be appropriate for principle offence — rehabilitation — s 16A(2)(n) — good prospects of rehabilitation from compliance with bail conditions and family circumstances — in these circumstances lack of true remorse or contrition of limited weight as do not consider offender likely to re-offend — delay — consequence of delay is that offender had opportunity to mature and rehabilitate himself before imposition of sentence — offender subject to strict bail conditions which sentencing judge regards as onerous — entitled to take them into account in determining appropriate sentence — parity — although 3 co-offenders not convicted of same offences, they were co-offenders to whom principles of parity apply — inclusion of offence under s 16BA rather than as a charge on indictment is not reviewable and diminishes effect of parity principles, except with respect to principal offence — offender was youngest of co-offenders — sentence — offender convicted — sentenced to 2 years’ and 1 month imprisonment — recognizance release order pursuant to s 20(1)(b) of Commonwealth Criminal Code that after serving 1 year of sentence, on giving $100 surety without security, offender be released upon good behaviour recognizance for rest of term
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