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Sentencing Terrorism Offenders

The content on this page was last reviewed on 3 July 2019.

Recent cases alert
R v Elmir (No 3) [2019] NSWSC 1040 — application of R v Ghazzawy [2017] NSWSC 474 in preparatory foreign incursion case where offender’s renunciation of extreme ideological views bears directly upon assessment of prospects of rehabilitation.
R v Dirani (No 34) [2019] NSWSC 1005 — significant and varied support provided by offender over extended period of time indicates high degree objective seriousness in conspiracy to do acts in preparation of a terrorist act offence.
R v Hraichie (No 3) [2019] NSWSC 973 — preparatory terrorist act intended to kill police officers considered a ‘very grave crime’, even where target group does not include ‘random members of the public’.
R v Mohamed, Chaarani & Moukhaiber [2019] VSC 498 — fact that offence spontaneous or ‘dreamed up’ only hours before commission does not diminish criminality where offence was product of ‘quite long-standing extremist views’.

1. Terrorism Offences

Terrorism offences are defined in section 3(1) of the Crimes Act 1914 (Cth):

terrorism offence” means:

(a)  an offence against Subdivision A of Division 72 of the Criminal Code; or

(aa)  an offence against Subdivision B of Division 80 of the Criminal Code; or

(b)  an offence against Part 5.3 or 5.5 of the Criminal Code; or

(c)  an offence against either of the following provisions of the Charter of the United Nations Act 1945:

(i)  Part 4 of that Act;

(ii)  Part 5 of that Act, to the extent that it relates to the Charter of the United Nations (Sanctions–Al-Qaida) Regulations 2008.

The term ‘terrorist act’ is defined in s 100.1 of the Commonwealth Criminal Code.

1.1 Types of terrorism offences

There are four broad types of terrorism offences. 1 Some examples of terrorism offences from the Commonwealth Criminal Code are provided in the table below:

Types of Terrorism Offences: Commonwealth Criminal Code  
Division 101 Terrorist Act & Preparatory Offences
s 101.1 Engaging in a terrorist act
s 101.2 Providing or receiving training connected with terrorist acts
s 101.4 Possessing things connected with terrorist acts
s 101.5 Collecting or making documents likely to facilitate terrorist acts
s 101.6 Other acts done in preparation for, or planning, terrorist acts
Division 102 Terrorist Organisation Offences
s 102.2 Directing the activities of a terrorist organisation
s 102.3 Membership of a terrorist organisation
s 102.4 Recruiting for a terrorist organisation
s 102.5 Training involving a terrorist organisation
s 102.6 Getting funds to or for a terrorist organisation
s 102.7 Providing support to a terrorist organisation
s 102.8 Associating with terrorist organisations
Division 103 Financing Terrorism Offences
s 103.1 Financing terrorism
s 103.2 Financing a terrorist
Division 119 Foreign Incursion and Recruitment Offences
s 119.1 Engaging in or entering a foreign country intending to engage in hostile activities
s 119.4 Performing services or preparations for a foreign fighter act

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2. Purposes of Sentencing

Sentencing courts have paid particular attention to the following common law purposes of sentencing 2 in relation to terrorism offenders:

  • Adequate punishment 3 and denunciation of the offending;
  • Incapacitation and community protection; and
  • Deterrence. 4

These purposes were clearly outlined in the United Kingdom terrorism sentencing case of R v Martin [1998] EWCA Crim 3046, where Lord Bingham CJ held at 480:

[I]n passing sentence for the most serious terrorist offences, the object of the Court will be to punish, deter and incapacitate; rehabilitation is likely to play a minor (if any) part (emphasis added).

This case has been consistently applied by Australian courts when sentencing terrorism offenders. 5

2.1 Adequate punishment and denunciation

In R v Cerantonio & Ors [2019] VSC 284, Croucher J considered the role of punishment in the sentencing of preparatory terrorism offences at [304]:

When sentencing the five co-accused, I factored in my view that general deterrence, curial denunciation and punishment were important sentencing purposes in the present case. I remarked that this Court must be astute to denounce, in the strongest terms, behaviour of the type in which these accused engaged and send a signal that such crimes will be met with significant punishment, even when the offending is only preparatory in nature and no harm ever comes of it. The very point of criminalising such behaviour is to ensure that the more sinister planned actions never come to fruition (emphasis added).

Whealy J emphasised in R v Touma [2008] NSWSC 1475 at [84] that offenders are to be punished ‘solely in relation to the offences’ to which they have pleaded guilty, ‘and not for the fear and detestation generated by terrorism generally’.

2.2 Incapacitation and community protection

In Lodhi v The Queen [2007] NSWCCA 360, Spigelman CJ considered the particular role of community protection in the context of preparatory terrorism offences, stating at [109]:

[T]he Court is not simply concerned with future criminal conduct of a recidivist character. It is concerned with the possibility of perfection of the very crime for the preparation of which the offender has been found guilty. Accordingly, the issue is not merely one of punishing an offender for something s/he may do in the future. It is the recognition that the protection of society requires the offender to be prevented from perpetrating the offences which s/he was preparing to commit. Giving the element of protection of society substantial weight, particularly in a context where personal deterrence and rehabilitation are, given the nature of the offence and the findings of fact, entitled to little weight, is consistent with the principle of proportionately laid down in Veen (No 2) (emphasis added). 6

Similarly, in the preparatory case of R v Azari (No 12) [2019] NSWSC 314, Adams J stated at [184]:

[W]hile “community protection” is not explicitly listed in s 16A(2) of the Crimes Act 1914, the sentencing principles for terrorism offences emphasise the relevance of this sentencing principle. This is due to the fact that terrorism offences involve the threat or use of violence as a means to intimidate the community and/or the government to pursue a particular political, religious or ideological agenda. In this case the offender was pursuing the agenda of Islamic State. On this basis community protection is another relevant sentencing factor (emphasis added). 7

Religious and ideological motivation of the offender may be relevant to assessing the need for community protection. 8 Further, where it is not established that the offender has resiled from previously held extremist views, the element of community protection may ‘assume even greater importance’. 9

The need for community protection, adequate punishment and specific and general deterrence has been emphasised in the sentencing of ‘lone wolf’ terrorism offenders. Croucher J noted the rationale for this in R v Shoma [2019] VSC 367 stating at [96]:

Protection of the community, punishment of you, and both specific and general deterrence are the most important sentencing factors for me to weigh. Lone wolf attacks are extremely difficult for law enforcement authorities to detect and prevent. They have the potential, made real by your actions, to impact, adversely, the amenity of Australian society (emphasis added).

Where the court has is satisfied the offender has good prospects of rehabilitation, the need for incapacitation may be reduced. 10

2.3 Deterrence

2.3.1 General Deterrence

Courts have considered the role of general deterrence when sentencing terrorism offenders. For example, in R v Alou (No 4) [2018] NSWSC 221, Johnson J stated at [276]:

The Court must have regard to general deterrence: s 16A(2)(ja). A very strong element of general deterrence is required in sentencing for terrorist offences. Even more so in a case such as this where the terrorist offence has caused death and thus actual harm to the community. It is of critical importance that Courts send a message to persons who are prepared to carry out violent acts such as this that such conduct will not be tolerated and will be met by severe punishment (emphasis added). 11

Similarly, the role of general deterrence extends to ensuring public confidence of the justice system is maintained. 12

The Victorian Court of Appeal considered the role of general deterrence where the offender committed a preparatory terrorism offence, with the intention that the offender himself be killed during the course of the attack. The Court held in DPP (Cth) v Besim [2017] VSCA 158 at [112]:

[T]he fact that the respondent indicated an intention to himself be killed during the course of the Anzac Day terror attack in no way reduces the importance of general deterrence as a sentencing consideration. 13

Spigelman CJ considered in Lodhi v The Queen [2007] NSWCCA 360 the interaction between general deterrence and community protection. His Honour held that deterrence may be afforded less weight where it appears, for example in the context of a suicide bomber, ‘that the force of an ideological or religious motivation is such that deterrence is unlikely to work.’ 14 In this context, ‘the element of protection of the community is entitled to greater weight than may otherwise be appropriate.’ 15

2.3.2 Specific Deterrence

Courts have emphasised the particular need for specific deterrence where the court is not satisfied the offender has expressed genuine contrition or has good prospects of rehabilitation. For example, Johnson J stated in R v Alameddine (No 3) [2018] NSWSC 681 at [308] that:

In my view, personal deterrence remains a very significant issue on sentence in this case. I have not found contrition or remorse on the part of the Offender. He is a person who has committed serious offences despite opportunities extended to him by sentencing courts and when subject to a FPO 16 which he flouted by the commission of the present offences (emphasis added). 17

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3. Assessing the Objective Seriousness of the Offence

In assessing the objective seriousness of terrorism offences, courts have taken a number of factors into account including the nature of the offence for which the offender is charged. 18

3.1 Assessing s 101.1 terrorist act offences

In R v Khan (No 11) [2019] NSWSC 594, the offender, acting for religious, political or ideological motivations, repeatedly stabbed the victim causing substantial physical injuries contrary to s 101.1(1) of the Commonwealth Criminal Code. Bellew J rejected the submission that, if the conduct was separated from the offender’s extremist ideology, the act was akin to attempted murder. His Honour held at [78]:

[W]hilst I accept that the offender is to be sentenced for what he did, to divorce his conduct from the violent ideology which underpinned it would be both artificial in the extreme, and fundamentally wrong in principle. The authorities to which I have referred make it clear that the depth and extent of an offender’s radicalisation is relevant to an assessment of the objective seriousness of offending of this kind. It would also be wrong in principle to sentence the offender by seeking to draw some comparison between the present offence and an offence of attempted murder. This is because it is the offender’s religious and ideological motivation, and his intention to intimidate the Government, which distinguishes his acts from those which might be committed in pursuit of private ends, and which come within established offences against the person (emphasis added; citations omitted).

In R v Shoma [2019] VSC 367, where the offender was also sentenced for a s 101.1(1) offence, Croucher J stated there was no binary division between terrorist acts conducted in public rather than in private. The fact that the offender attacked the victim while he was asleep in his own home did not make ‘the gravity of [the] offending less than in any potential lone wolf knife attack in public.’ 19

It is an offence for a person to aid, abet, counsel or procure the commission of a terrorist act according to ss 11.2(1) and 101.1(1) of the Commonwealth Criminal Codd. In assessing the objective circumstances of this offence, the offender in R v Alou (No 4) [2018] NSWSC 221 was considered to have high moral culpability at [190]:

[T]he Offender was a very active planner and participant in this offence. Although he is liable as an aider and abettor, the principal offender was but 15 years old who could not have committed the terrorist act unless equipped by the Offender and then further encouraged to do so. This is a case where the moral culpability of the aider and abettor is close to if not at the same level as the principal offender (emphasis added).

3.1.1 Victim of the offence

Section 16A(2)(d) requires sentencing courts to take into account the personal circumstances of any victim of the offence. 20 Section 16A(2)(e) provides that a court must take into account any injury, loss or damage resulting from the commission of the offence. 21

In R v Khan (No 11) [2019] NSWSC 594, victim impact statements were submitted to the Court by the victim who was stabbed by the offender, the witness who attempted to restrain the offender, and several additional bystanders who directly witnessed the attack. Bellew J held that all of these people were considered ‘victims’ for the purpose of sentencing as they were all in the vicinity of the attack and had suffered physical, emotional or psychological harm. 22

The number of actual or potential immediate victims of the offence is relevant to but not determinative to the assessment of the gravity of the offending. Croucher J stated in R v Shoma [2019] VSC 367 at [65]:

[I]rrespective of the number of immediate victims, the assessment of harm must necessarily take into consideration the harm done to the Australian public and the Australian polity. The intention to effect that harm is an essential ingredient of the offence to which you have pleaded. And, there can be no defined mathematical relationship between the number of immediate victims and the degree of that broader, less tangible harm. It all depends upon the circumstances (emphasis added). 23

3.2 Assessing preparatory offences

Courts have taken into account the purpose of the legislature in creating offences criminalising preparatory conduct. The Victorian Court of Appeal held in DPP (Cth) v MHK [2017] VSCA 157 and DPP (Cth) v Besim [2017] VSCA 158 that the statutory offence created by s 101.6 ‘was designed to ensure that persons who plan to commit terrorist acts in our community be intercepted early.’ 24

In the sentencing appeal of Lodhi v The Queen [2007] NSWCCA 360, the New South Wales Court of Criminal Appeal identified the manner in which objective seriousness of preparatory offences is to be assessed. Price J (Spigelman CJ and Barr J agreeing) held at [229]:

The present offences, however, are not crimes of attempt. Sections 101.4, 101.5 and 101.6 of the Criminal Code Act 1995 (the Criminal Code) extend criminal liability to acts of preparation. The proximity between the criminal act and the commission of the substantive offence is necessarily more remote. These are anticipatory offences which enable intervention by law enforcement agencies to prevent a terrorist act at a much earlier time than would be the case if they were required to wait for the commission of the planned offence or for an unsuccessful attempt to commit it. The proximity between the preparatory act and the completion of the offence, although relevant, does not determine the objective seriousness of such an offence. It does not follow that as long as the preparatory acts relied upon to constitute the offences are in their infancy criminal culpability must necessarily be low. The main focus of the assessment of objective seriousness must be the offender’s conduct and the offender’s intention at the time the crime was committed (emphasis added; italics in original). 25

The terrorist act for which the preparation was directed, and the offender’s state of mind were considered in R v Mulahalilovic [2009] NSWSC 1010 where the offender had been convicted under s 101.4(2) of the Commonwealth Criminal Code. Whealy J held at [51]:

It is especially important to note that the terrorism legislation, relevantly for the present matter, is concerned with actions even where the terrorist act contemplated or posited by an accused person has not come to fruition or fulfilment. Indeed, the legislation caters for prohibited activities connected with terrorism even where no target has been selected, or no final decision made as to who will carry out the ultimate act of terrorism. There is a need, then, to consider what would have happened had the intending terrorist act or acts actually occurred. There is a commensurate need, in the present matter, to assess the offender’s state of mind, so far as it can be ascertained, by reference to his actions and his plea (emphasis added). 26

Australian courts have affirmed the UK sentencing decision of R v Kahar [2016] EWCA Crim 568. The England and Wales Court of Appeal (Criminal Division) held at [19] that in addition to the nature and gravity of the terrorist act and general aggravating factors, the following are likely to require consideration:

(i) the degree of planning, research, complexity and sophistication involved, together with the extent of the offender’s commitment to carry out the act(s) of terrorism;

(ii) the period of time involved, including the duration of the involvement of the particular offender;

(iii) the depth and extent of the radicalisation of the offender as demonstrated (inter alia) by the possession of extremist material and/or the communication of such views to others; and

(iv) the extent to which the offender has been responsible, by whatever means, for indoctrinating or attempting to indoctrinate others, and the vulnerability or otherwise of the target(s) of the indoctrination, be it actual or intended (emphasis added). 27

Preparatory conduct which is ‘simplistic’ or ‘amateurish’ does not diminish the objective seriousness of the offending, particularly if it had ‘the real capacity to inflict significant or immediate harm.’ 28 Similarly, the absence of a defined target does not lessen the objective seriousness of the offence. 29 However, it may be lessened by ‘the relative superficiality of the offender’s ideological conviction.’ 30

3.3 Assessing terrorist organisation offences

In assessing the objective seriousness of terrorist organisation offences contained in div 102 of the Commonwealth Criminal Code, courts have taken into account the history of the terrorist organisation itself. The Victorian Court of Appeal in Benbrika v The Queen [2010] VSCA 281 held that the history of a terrorist organisation is relevant to both the objective seriousness of the offence and the moral culpability of the offender. 31 The court explained at [555]–[556]:

So far as objective seriousness is concerned, the history of the organisation is relevant because it informs the nature of the organisation. The definitions of ‘terrorist organisation’ and ‘terrorist act’ are extraordinarily broad. Therefore, on the one hand, a ‘terrorist organisation’ may include anything from a rag-tag collection of malcontents whose commitment to terror never advances further than a conception that one day, some time, they will undertake a ‘terrorist act’ of as yet undetermined nature and scope. On the other hand, it may include a ‘terrorist organisation’, like Al Qaeda or Jema’ah Islamiah, with a proven record of committing the worst terrorist acts imaginable and, presumably, with more of the same in constant planning and preparation

 

So far as moral culpability is concerned, the history of the organisation is relevant because it may say something about the way in which prospective members are attracted to the organisation and, therefore, about their state of mind. For example, with an organisation of the former kind, it is possible that an offender may join the organisation in a state of uncertainty or confusion. They may thereafter have been seduced by a process of indoctrination to embrace the terrorist philosophy and objectives of the organisation. With an organisation of the latter variety, however, logic and common sense imply the probability that the offender will be committed to the terrorist philosophy and objectives of the organisation before being admitted to its membership, and so they go into it with their eyes wide open. Without wishing to be prescriptive about it, we think the difference provides a basis to say that an offender of the former kind is less morally culpable than the latter (emphasis added).

The Court in R v Lelikan (No 5) [2019] NSWSC 494 affirmed the above passage in Benbrika v The Queen [2010] VSCA 281 but clarified at [66]:

The fact that the PKK [Kurdistan Workers’ Party] is specified as a terrorist organisation is an element of the offence and cannot, of itself, inform the measure of seriousness of this particular offence. As acknowledged by the Crown, there is a broad range of kinds of organisation that could be specified for the purpose of the section. It is accordingly necessary to understand the process that underpins the listing (and re-listing) of terrorist organisations and to make an assessment of the particular features of the PKK in that context (emphasis added). 32

The nature and history of a ‘proscribed organisation’, for the purposes of an offence under s 21 of the Charter of the United Nations Act 1945, has also been taken into account by courts in assessing the objective seriousness of the offence and moral culpability of the offender. 33

3.4 Assessing foreign incursion and recruitment for foreign incursion offences

In sentencing for foreign incursion and recruitment for foreign incursion offences, courts have considered the statutory purposes of the offences.

The Crimes (Foreign Incursion and Recruitment) Act 1978 (Cth) (‘CFIRA’) was repealed in 2014 and replaced by similar offences, with increased penalties, under div 119 of the Commonwealth Criminal Code. 34 In sentencing six offenders under s 119.4 for preparatory foreign incursion offences, Croucher J affirmed in R v Cerantonio & Ors [2019] VSC 284 at [75]–[76] the following passage in R v Mohamed [2016] VSC 581 where Lasry J considered the purposes of ss 6 and 7 of the Crimes (Foreign Incursion and Recruitment) Act:

[T]he clear purpose of the provisions . . . was to ensure that Australia discharged its international obligation to make criminal the activities of . . . [those] who proposed to engage in hostile activities in a foreign state and/or assist foreign fighters to do so. That purpose in itself demonstrates the seriousness of [the] conduct. Like contemporary terrorism offences, the . . . Act made criminal not only the specific act of engaging in hostile activities in a foreign state but, separately, acts which are performed in preparation with that intention (emphasis added). 35

In assessing the objective seriousness of foreign incursion offences under CFIRA, courts have stipulated the offending conduct should be assessed on the basis of guilt under the Act, which does not include the element that the offender’s conduct was in the furtherance of terrorism. 36 An offender’s particular statements about ‘beliefs in relation to killing in the name of Allah’ or the ‘creation of an Islamic caliphate’ may be relevant to the overall sentencing matrix, however, were not found to be relevant to the assessment of the objective seriousness of the actual offences in DPP (Cth) v El Sabsabi [2017] VSCA 160. 37

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4. Mitigating Factors

4.1 Contrition

Section 16A(2)(f) requires sentencing courts to take into account the degree to which an offender has shown contrition for their offending. 38

In R v Atai (No 2) [2018] NSWSC 1797, Johnson J commented on the weight to be given to claims of contrition expressed by an offender at a sentencing hearing stating at [311]:

Courts must exercise caution in assessing the genuineness of claims that a holder of extremist views is prepared to move away from them, especially when that claim is made at a sentencing hearing. That said, it is in the public interest for persons who have committed terrorist offences to seek to engage in a process which has a capacity to assist an offender to alter thought processes so as to comply with the laws of society.

Where an offender commits a terrorist offence as a result of the influence of extremist beliefs, courts have taken into account the extent to which the offender has resiled from the beliefs when considering whether any degree of contrition has been established. For example, only a moderate allowance for contrition was given in R v Touma [2008] NSWSC 1475, where Whealy J was ‘by no means satisfied beyond reasonable doubt that the offender has refused to budge from his former extremist position.’ 39 In R v Mohamed [2016] VSC 581 the Court was ‘unable to detect contrition’ as the offender did not acknowledge his purpose for travelling to Syria was to engage in foreign hostilities, despite the jury being satisfied of this purpose beyond reasonable doubt. 40

In R v Bayda; R v Namoa (No 8) [2019] NSWSC 24, both offenders had converted from Islam to Christianity while in custody, prior to sentencing. In relation to Bayda’s abandonment of jihadism, Fagan J noted ‘it is not necessary that he should convert to another religion in order to renounce the fanaticism which was inherent in the offence.’ 41 His Honour ‘did not find it necessary to determine with what degree of sincerity Namoa has reverted to Christianity’ but was satisfied that the offender ‘no longer accepts the command of Allah for Islamic domination by violence.’ 42

4.2 Prospects of Rehabilitation

Section 16A(2)(n) requires a court to take into account various factors personal to the offender including their prospects of rehabilitation. 43

Courts have held that it is necessary to consider the extent to which the offender holds any extremist views at the time of the offence and at sentencing when making an assessment of the offender’s prospects of rehabilitation. For example, in R v HG [2018] NSWSC 1849 at [106] Bellew J considered a passage from Elomar v The Queen [2014] NSWCCA 303, [744], and held that the successful rehabilitation of an offender found guilty of a terrorist offence is necessarily dependent, at least in part, upon that offender renouncing previously held extremist views. His Honour continued at [106]:

[I]t follows that if a sentencing Court is satisfied that an offender has renounced those views, the prospects of rehabilitation will be greater and will constitute a matter for which the Court must make an appropriate allowance. Conversely, if the Court is not so satisfied, an offender’s prospects of rehabilitation will be less optimistic. The offender bears the onus of establishing, on the balance of probabilities, that a previously held extremist ideology has been renounced or abandoned (emphasis added). 44

The offender in R v EB [2018] NSWSC 201, aged 16 years at the time of the offence, was considered to be ‘someway along the road of rehabilitation’ by voluntarily engaging with a moderate Muslim re-socialising program, to be formally joined post-release. 45 Similarly in R v Biber [2018] NSWSC 535, the offender had been convicted of foreign incursion offences. Adamson J regarded the fact that offender had ‘lived with his family for almost three years from the date of his return from Turkey to the date of his arrest’ without doing anything to risk the safety of the Australian community as a ‘substantial indicator of his prospects of rehabilitation.’ 46

4.3 Guilty Plea

Section 16A(2)(g) requires sentencing courts to have regard to any plea of guilty of the offender. 47

Courts have considered that an offender’s plea of guilty may be taken as a cautious indicator that the offender has abandoned their extremist beliefs. However, courts will be reluctant to find a guilty plea as evidence of contrition where it was entered close to trial, or when the offender does not give evidence and is not subject to cross-examination. For example, the Court in R v Khaja (No 5) [2018] NSWSC 238 found at [86]:

The offender’s plea of guilty was entered at the last possible moment before a jury would have been empanelled to try him. I do not infer from the plea an acknowledgement of wrongdoing or an expression of remorse or contrition. Having regard to the offender’s explicit contempt for Australian laws and for the people of this country other than Muslims and taking into account his professed deep religious conviction that he was justified in planning a mass killing of Australian civilians, an acknowledgement of wrongdoing and demonstration of remorse or contrition would only be credible if it came from the offender directly in oral evidence. That would allow his claimed change of beliefs to be tested in cross-examination and evaluated… (emphasis added). 48

Conversely, courts have held that a plea of guilty by the offender will not necessarily constitute a movement away from extremist views. 49

4.4 Mental Condition

Section 16A(2)(m) requires a court to take into account various factors personal to the offender including their mental condition. 50

Courts have taken into account the relationship between the offender’s mental condition and extremism and radicalisation. For example, Fagan J found in R v Bayda; R v Namoa (No 8) [2019] NSWSC 24, that the offender’s history of mental health problems 51 ‘materially contributed to her engagement with militant Islamic ideas and hence to the commission of the offence.’ 52

Where the offending conduct was causally connected to the offender’s mental condition, courts have considered the need for specific and general deterrence and denunciation may be of lesser significance. 53 For example, the fact that the offender suffered from schizophrenia during and after the commission of the offence in R v Taleb (No 5) [2019] NSWCCA 720 made the offender ‘more vulnerable to extremist ideology’ 54 and, therefore, ‘an inappropriate vehicle for a sentence where significant or undue weight is afforded to the principle of general deterrence.’ 55

However, in R v Khan (No 11) [2019] NSWSC 594, there was evidence that the offender suffered from schizophrenia and/or obsessive compulsive disorder at the time of the offence. 56 While it was not established that the offender’s mental illness was in any way causally connected to the offending, 57 Bellew J considered that the offender’s asserted deradicalisation ‘must be viewed and assessed against a background of somebody who is, on the evidence, suffering from a mental illness.’ 58

Moreover, his Honour was not satisfied in R v Khan (No 11) [2019] NSWSC 594  that the offender was ‘substantially rehabilitated,’ 59 stating at [100]:

[T]he fact that the offender admitted lying to medical practitioners in order to be portrayed more favourably in their reports is necessarily significant. At least some of those reports, if not the majority of them, incorporated the opinions which went directly to the offender’s defence of mental illness … The significance of the fact that subject of his lies on those occasions was, at least in part, the very ideology which he now maintains that he has abandoned, needs no further comment (emphasis added).

4.5 Youth

Section 16A(2)(m) requires a court to take into account various factors personal to the offenders including their age. 60

The weight given to youth as a mitigating factor may be diminished where the offender has committed a terrorist offence or similar offences involving extreme violence. 61  In DPP (Cth) v MHK [2017] VSCA 157, the 17 year old offender pleaded guilty to doing acts in preparation for, or planning, a terrorist act. Warren CJ, Weinberg and Kaye JJA held at [56]–[57], [67] that:

In the present case, the respondent was only 17 years of age at the time of the offending.  Ordinarily, and in general, the youth of an offender is an important mitigating circumstance.

On the other hand, it is recognised that those principles need to be appropriately moderated where, as in a case such as this, the offender has been involved in serious and dangerous offending.

While youth is relevant in determining the weight to be given to general deterrence and denunciation in the sentencing equation, its weight is diminished, quite measurably, in cases such as this, in which a youthful offender either participates in, or plans to carry out, actions of extreme violence (emphasis added). 62

However courts have, in some circumstances, held that the youth and immaturity of a terrorism offender can mitigate their sentence. 63

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5. Sentencing Child Offenders

The effect of s 20C of the Crimes Act 1914 (Cth) is that sentencing options which are not otherwise picked up by Commonwealth provisions may be available to children and young persons who commit federal offences. 64 In New South Wales, for example, section 19 of the Children (Criminal Proceedings) Act 1987 (NSW) provides that if a court sentences an offender under the age of 21 years to a period of imprisonment for an indictable offence, the court may make an order directing that whole or part of the sentence be served as a juvenile offender. 65 Such an order may only be made where there is a ‘finding of special circumstance’ which includes the offender facing an ‘unacceptable risk of … suffering physical or psychological harm.’ 66

In R v EB [2018] NSWSC 201 where the offender was aged 16 years at the time of the offence, the Court held that s 19 did not allow a finding of special circumstances to be made ‘simply because of the offender’s youth’. 67 Rather, Whealy J found special circumstances existed as ‘there would be an unacceptable risk of the offender suffering psychological harm in the form of re-radicalisation if he was not detained as a juvenile offender.’ 68

Similarly, in the preparatory terrorism case of R v AH [2018] NSWSC 973, the offender was a child at the time the offence was committed. 69 The offender was sentenced to 12 years’ imprisonment, with a non-parole period of 9 years. The offender was to be detained in juvenile detention until his 21st birthday, due to the ‘exposure to bullying and assaults on the basis of the nature of the offence’ which established the special circumstances justifying the offender’s detention as a juvenile. 70

In the case of R v Khalid [2017] NSWSC 1365, one of the offenders, IM, was aged 14-years at the time of the offence. The offender was convicted of doing acts in preparation for a terrorist act offence, and was originally sentenced to imprisonment for 13 years and 6 months, with a non-parole period of 10 years and 1 month. The sentence was reduced on appeal in IM v The Queen [2019] NSWCCA 107 to 10 years and 9 months’ imprisonment with an 8 year non-parole period. 71 The Court was satisfied that exceptional circumstances justified the offender being detained in juvenile detention until his 21st birthday, as the offender would face an ‘unacceptable risk’ of suffering physical or psychological harm if committed to a correctional centre prior to turning 21 years. 72

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6. Imposing a Sentence

6.1 Fixing a Non-Parole Period

The effect of s 19AG of the Crimes Act 1914 (Cth) is that sentencing courts must fix a minimum non-parole period of 3/4 of the head sentence imposed for certain offences, including a ‘terrorism offence’, listed under subsection 19AG(1). 73

Price J (Barr J and Spigelman CJ agreeing) held in Lodhi v The Queen [2007] NSWCCA 360 that s 19AG ‘does not detract in any way from the obligation of a sentencing judge to first impose a proportionate sentence before considering the non-parole period.’ 74 The term ‘terrorism offence’ has been interpreted to include a conspiracy to perform a terrorist offence. 75 Hamill J in R v Taleb (No 5) [2019] NSWSC 720 considered that s 19AG does not mandate that offences included under subsection 19AG(1) must necessarily result in a custodial sentence. 76

6.2 Continuing Detention Orders

Under div 105A of the Commonwealth Criminal Code a continuing detention order may be made in relation to particular terrorism offenders. 77 Sentencing courts must warn offenders at the time of sentence of the existence and operation of this provision. 78 However a failure of the court to warn the offender does not affect the validity of the sentence or prevent an application for a continuing detention order being made in relation to that offender. 79

Warren CJ, Weinberg JA and Kaye JA held in DPP (Cth) v Besim; DPP (Cth) v MHK (No 3) [2017] VSCA 180 that the existence of the continuing detention order regime cannot be taken into account in the imposition of the sentence itself. 80

6.3 Non-Custodial Orders

Section 17A(1) requires that a court shall not pass a sentence of imprisonment for a federal offence unless the court is satisfied no other sentence is appropriate in all the circumstances of the case. 81

Courts have taken into account the nature and circumstances of the offence to determine the appropriate nature of the sentencing order. For example, in R v Lelikan (No 5) [2019] NSWSC 494, the offender was convicted of membership to a terrorist organisation, PKK, contrary to s 102.3 of the Commonwealth Criminal Code. McCallum J was satisfied that an order less severe than a term of imprisonment was appropriate in the circumstances due to, in part, the offender being incarcerated in the same area as members of other terrorist organisations ‘whose objects include the murderous destruction of organisations such as the PKK [Kurdistan Workers’ Party].’ 82 A 3-year Community Correction Order (CCO) was imposed.

In R v Taleb (No 5) [2019] NSWC 720, where the offender suffered from schizophrenia, Hamill J considered that incarceration was likely to be anti-therapeutic for the offender’s mental illness, and a long period of supervision was required to ensure compliance with the offender’s counselling and medication regimes. Further, his Honour considered if the offender was sentenced to a term of imprisonment, he would be subject to the mandated non-parole period under s 19AG, resulting in an insufficiently short supervised parole period. Accordingly, a sentence was not imposed, but rather the offender was released on recognizance for 5 years pursuant to s 20(1)(a). 83

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Notes:

  1. See Commonwealth Director of Public Prosecution’s Counter Terrorism web page. An attempt was made to collate an exhaustive list of all terrorism offences, including applicable state and territory legislation, as of November 2018 in Appendix C of the Independent National Security Legislation Monitor’s Report to the Prime Minister: The prosecution and sentencing of children for terrorism.
  2. Rehabilitation and harm to the victim are discussed below in 4. Mitigating Factors but are not prominent factors for the purposes of sentencing terrorism offences at common law.
  3. The need to ensure the offender is adequately punished for the offence is listed as a relevant factor under s 16A(2)(k) of the Crimes Act 1914 (Cth). For further commentary, see Adequacy of Punishment.
  4. Specific and general deterrence are listed as sentencing factors under ss 16A(2)(j) and 16A(2)(ja) of the Crimes Act 1914 (Cth) respectively. For further commentary, see Deterrence.
  5. See, eg, Lodhi v The Queen [2007] NSWCCA 360, [89]; R v Mulahlilovic [2009] NSWSC 1010, [42] (Whealy J); R v Roche [2005] WASCA 4, [112] (McKechnie J, Murray ACJ agreeing); R v HG [2018] NSWSC 1849, [106] (Bellew J); Elomar v The Queen [2014] NSWCCA 303, [78]; DPP (Cth) v Besim [2017] VSCA 158, [81].
  6. Affirmed in Fattal v The Queen [2013] VSCA 276, [169] (Buchanan AP, Nettle and Tate JJA).
  7. See also R v Taleb (No 5) [2019] NSWSC 720, [88].
  8. R v Alou (No 4) [2018] NSWSC 221, [167] (Johnson J) applying R v Kahar [2016] EWCA Crim 568, [19].
  9. R v Alou (No 4) [2018] NSWSC 221,[168] (Johnson J) referring to R v Lodhi [2006] NSWSC 691, [82]–[83], [88]; R v Elomar [2010] NSWSC 10, [93]; Benbrika v The Queen [2010] VSCA 281, [591]. Affirmed in R v Atai (No 2) [2018] NSWSC 1797, [216] (Johnson J). See also R v AH [2018] NSWSC 973, [24] (Latham J).
  10. R v Bayda; R v Namoa (No 8) [2019] NSWSC 24, [115].
  11. See also R v Atai (No 2) [2018] NSWSC 1797, [377].
  12. R v Alqudsi [2016] NSWSC 1227, [98] (Adamson J) citing Markarian v The Queen [2005] HCA 25, [82] (McHugh J).
  13. See also, DPP (Cth) v MHK [2017] VSCA 157, [53].
  14. Lodhi v The Queen [2007] NSWCCA 360, [87].
  15. Lodhi v The Queen [2007] NSWCCA 360, [88]. See also proscribed organisation offence case R v Vinayagamoorthy & Ors [2010] VSC 148, where Coghlan J noted general deterrence would be of lesser importance where events in Sri Lanka has caused the organisation (LTTE) to no longer be a proscribed organisation under the United Nations Charter.
  16. The offender had also committed three state firearm offences, including possessing a firearm in contravention of a Firearms Prohibition Order (‘FPO’). See further, R v Alameddine (No 3) [2018] NSWSC 681, [7].
  17. See further R v Khaja (No 5) [2018] NSWSC 238, [91] (Fagan J); R v Alou (No 4) [2018] NSWSC 221, [275] (Johnson J); Fattal v The Queen [2013] VSCA 276, [218]; R v Bayda; R v Namoa (No 8) [2019) NSWSC 24, [120].
  18. Sentencing courts are required to take into account the nature and circumstances of the offence under s 16A(2)(a). For further commentary, see Nature and Circumstances of the Offence.
  19. R v Shoma [2019] VSC 367 [60]–[61]. It was also relevant to the assessment that the offence was committed in front of the victim’s 5 year old child.
  20. For further commentary on how courts assess victims of the offence, see Victim of the Offence and Victim Impact Statements.
  21. For further commentary on s 16A(2)(e), see Injury, Loss or Damage.
  22. R v Khan (No 11) [2019] NSWSC 594, [20]–[23].
  23. See further R v Khan (No 11) [2019] NSWSC 594, [81] where Bellew J noted ‘the fact that one may envisage offending of greater gravity, perhaps involving multiple victims, does not mean that the present offending was not serious.’
  24. DPP (Cth) v MHK [2017] VSCA 157, [48] (Warren CJ, Weinberg and Kaye JJA); DPP (Cth) v Besim [2017] VSCA 158, [111]. See further R v Azari (No 12) [2019] NSWSC 314, [124] where Adams J held the government’s prevention of terrorism requires ‘criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct.’
  25. Affirming original sentencing decision: R v Lodhi [2006] NSWSC 691, [51] (Whealy J). See, eg, R v Bayda; R v Namoa (No 8) [2019) NSWSC 24, [112] (Fagan J); R v Al-Kutobi [2016] NSWSC 1760, at [149] (Garling J); Fattal v The Queen, [165].
  26. See also R v Alameddine (No 3) [2018] NSWSC 681, [187] (Johnson J); Khazaal v The Queen (No 2) [2013] NSWCCA 140, [32] (McCallum J, McClellan JA and Hall J agreeing); R v Abbas [2018] VSC 553, [100], [104], [106]. See further R v Lodhi [2006] NSWSC 691, [65] (Whealy J).
  27. See further R v EB [2018] NSWSC 201, [40] (Davies J); R v HG [2018] NSWSC 1849, [6] (Bellew J); R v Elomar [2010] NSWSC 10, [62]; Benbrika v The Queen [2010] VSCA 281, [564]; R v Azari (No 12) [2019] NSWSC 314, [118].
  28. R v HG [2018] NSWSC 1849, [80] (Bellew J). See also R v Lodhi [2006] NSWSC 691, [68] (Whealy J); Fattal v The Queen [2013] VSCA 276, [178].
  29. R v Touma [2008] NSWSC 1477, [121] (Whealy J).
  30. R v Bayda; R v Namoa (No 8) [2019) NSWSC 24, [113].
  31. Benbrika v The Queen [2010] VSCA 281, [554].
  32. See further R v Lelikan (No 5) [2019] NSWSC 494 [66] – [85] where the overall assessment of the listing process, history of the organisation and relationship with the Australian government placed the overall assessment of the offence ‘towards the lowest order of seriousness.’
  33. See,eg, R v Vinayagamoorthy & Ors [2010] VSC 148 where three offenders where sentenced for making money available to the Liberation Tigers of Tamil Eelam.
  34. Repealed by Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth). See further R v Succarieh; ex parte Commonwealth Director of Public Prosecutions [2017] QCA 85, [53] where the Court of Appeal affirmed the sentencing judge’s consideration that as the offender had been charged under the old provisions of the Act, ‘it would be wrong in law to take into account that there were now increased penalties under the new legislative regime.’
  35. R v Mohamed [2016] VSC 581, [4]. Affirmed in R v Biber [2018] NSWSC 535, [96] (Adamson J). See also R v EB [2018] NSWSC 201 where the offender was sentenced for intentionally performing services for a foreign fighter offence contrary to s 119.4(5).  A committing acts in preparation of engaging in foreign incursion activities offence, contrary to s 119.4(1), was taken into account under s 16BA of the Crimes Act 1914 (Cth). See further R v Taleb (No 5) [2019] NSWSC 720 where ‘entrapment’ by an undercover police officer was considered in relation to a s 119.4 offence.
  36. R v Succarieh; ex parte Commonwealth Director of Public Prosecutions [2017] QCA 85, [142] (Morrison JA, Bond J and McMurdo JA agreeing); affirmed in DPP (Cth) v El Sabsabi [2017] VSCA 160, [47]–[48]. See further, R v Biber [2018] NSWSC 353, [100]–[105] (Adamson J). Similar to CFIRA, div 119 offences do not require that the offending is in furtherance of terrorism.
  37. DPP (Cth) v El Sabsabi [2017] VSCA 160, [48] in relation to CFIRA.
  38. For further commentary on how courts assess contrition, see Contrition and Reparation.
  39. R v Touma [2008] NSWSC 1475, [146] (Whealy J).
  40. R v Mohamed [2016] VSC 581, [44] – [45] (Lasry J).
  41. R v Bayda; R v Namoa (No 8) [2019] NSWSC 24, [82].
  42. R v Bayda; R v Namoa (No 8) [2019] NSWSC 24, [101].
  43. For further commentary on how courts assess an offender’s prospects of rehabilitation, see Rehabilitation.
  44. Referring to R v Touma [2008] NSWSC 1475, [145]; DPP (Cth) v Besim [2017] VSCA 158, [108]. See also R v Azari (No 12) [2019] NSWSC 314, [158] (Adams J). But see R v Lelikan (No 5) [2019] NSWSC 494 where, in relation to the offender bearing the onus of proof on the balance of probabilities, McCallum J at [91] did ‘not accept that a principle can be stated in those terms’ and ‘must be approached with caution.’
  45. R v EB [2018] NSWSC 201, [65]–[67].
  46. R v Biber [2018] NSWSC 535, [124]–[128].
  47. For further commentary on how courts take into account the guilty plea of an offender at sentence, see Guilty Plea.
  48. See further, R v Alou (No 4) [2018] NSWSC 221, [224]–[227]; R v Mulahalilovic [2009] NSWSC 1010, [69]–[70].
  49. See, eg, R v Sharrouf [2009] NSWSC 1002, [49]–[50] (Whealy J), affirmed in R v Ghazzawy [2017] NWSC 474, [72]–[73] (Garling J).
  50. For further commentary on how courts assess mental condition, see Mental Condition.
  51. Namoa had a history of mental health problems including depression, anxiety and learning difficulties: see R v Bayda; R v Namoa (No 8) [2019) NSWSC 24, [103].
  52. R v Bayda; R v Namoa (No 8) [2019) NSWSC 24, [117].
  53. See, eg, R v Bayda; R v Namoa (No 8) [2019) NSWSC 24, [117]; R v Kent [2009] VSC 375, [41]; R v Sharrouf [2009] NSWSC 1002, [44] (Whealy J).
  54. R v Taleb (No 5) [2019] NSWCCA 720, [58].
  55. R v Taleb (No 5) [2019] NSWCCA 720, [59]. In this case, the offender was not sentenced and instead was subject to a five year recognizance release order.
  56. See R v Khan (No 11) [2019] NSWSC 594, [109] where differing expert opinions were expressed as to the exact mental illness the offender. However, at [110], Bellew J did not consider it necessary to reach a conclusion as to the nature of the mental illness.
  57. R v Khan (No 11) [2019] NSWSC 594, [114].
  58. R v Khan (No 11) [2019] NSWSC 594, [99].
  59. R v Khan (No 11) [2019] NSWSC 594, [100].
  60. For further commentary on how courts assess the relevance of an offender’s youth at sentence, see Age.
  61. DPP (Cth) v MHK [2017] VSCA 157, [64]–[67]. See further, R v Alou (No 4) [2018] NSWSC 221, [170]; Elomar v The Queen [2014] NSWCCA 303, [820]; R v Ghazzawy [2017] NSWSC 474, [64] – [67] (Garling J).
  62. This position was also applied in DPP (Cth) v Besim [2017] VSCA 158, [116]. See also R v EB [2018] NSWSC 201, [71]; R v HG [2018] NSWSC 1849, [94] – [95] (Bellew J).
  63. See, eg, R v Bayda; R v Namoa (No 8) [2019) NSWSC 24, [119]; R v Ceratonio & Ors [2019] VSC 284, [278]–[279]; R v Biber [2018] NSWSC 535, [113]–[114].
  64. For further commentary on s 20C, see Age.
  65. s 19(1), Children (Criminal Proceedings) Act 1987 (NSW).
  66. s 19(4), Children (Criminal Proceedings) Act 1987 (NSW).
  67. R v EB [2018] NSWSC 201, [81] (Whealy J).
  68. R v EB [2018] NSWSC 201, [94]. See further [81] – [93].
  69. The offender’s aged has been suppressed by the Court.
  70. R v AH [2018] NSWSC 973, [37].
  71. The sentence was successful appealed on grounds relating to the consideration of guilty plea, not the offender’s youth.
  72. R v Khalid [2017] NSWSC 1365, [21].
  73. further commentary on s 19AG, see Non Parole Period and Recognizance Release Orders. Note: the Independent National Security Legislation Monitor’s Report to the Prime Minister: The prosecution and sentencing of children for terrorism recommends that section 19AG as it applies to children is in breach of Australia’s international obligations [6.26]. It was not suggested that non-compliance was deliberate at the time s 19AG was enacted [6.27]. These recommendations are yet to be considered by the legislature or the courts.
  74. Lodhi v The Queen [2007] NSWCCA 360, [261].
  75. Fattal v The Queen [2013] VSCA 276, [212].
  76. R v Taleb (No 5) [2019] NSWSC 720, [110].
  77. Offenders may also be subject to state and territory regimes: see, eg, Terrorism (High Risk Offenders) Act 2017 (NSW) and Criminal Law (High Risk Offenders) Act 2015 (SA).
  78. s 105A.23(1) of the Commonwealth Criminal Code.
  79. s 105A.23(2) of the Commonwealth Criminal Code.
  80. DPP (Cth) v Besim (No 3) [2017] VSC, [59]. Affirmed in R v Alameddine (No 3) [2018] NSWSC 681, [316] (Johnson J).
  81. For further commentary on s 17A, see Custodial Sentence. For further commentary on non-custodial orders, see Additional Sentencing Alternatives.
  82. R v Lelikan (No 5) [2019] NSWSC 494, [106]. See further DPP (Cth) v El Sababsi [2017] VSCA 160 where the offender, convicted of two foreign incursion offences, was sentenced to a 44 day period of imprisonment and 2 year CCO.
  83. For further commentary on s 20(1)(a), see Non Parole Period and Recognizance Release Orders.