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Recent Cases, Commentary and Amendments

Recent Federal Cases View All

  • 5 June 2019 —

    R v Shoma [2019] VSC 367 — engaging in a terrorist act offence — victim of the offence — nature and circumstances of the offence — deportation

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    sentence — engaging in a terrorist act offence contrary to s 101.1(1) of Commonwealth Criminal Code — offender stabbed victim in neck with kitchen knife, resulting in physical injury — attack occurred in victim’s home where victim was homestay host for offender —victim impact statements — ss 16AB, 16A(2)(ea) — victim impact statements received by court from victim and victim’s wife — victim’s 5-year-old daughter witness attack — victim suffers from constant physical pain and post-traumatic stress disorder — distress at watching daughter suffer flashbacks, severe nightmares and night sweats — sentencing terrorism offences — body of case law concerning preparatory offences is apposite to intentionally engaging in terrorist act offences — no clear binary division of objective seriousness between terrorist act done in public than act done in private — fact that no adult witnesses to attack does not necessarily make offending less serious than potential lone wolf attack in public — attack violated legitimate expectation that everyone should be and feel safe in their home — number of intended or actual victims are not determinative of assessment of objective seriousness — irrespective of number of immediate victims, assessment of harm must necessarily take into consideration harm done to Australian public and Australian polity — fact that terrorist act was completed rather than contemplated relevant to assessment of gravity of offending and moral culpability of the offender — nature and circumstances of offence — s16A(2)(a) — offender entered study program from Bangladesh to Australia with ‘sole purpose’ of carrying out terrorist act — bringing large kitchen knife from Bangladesh and carrying out attack within 8 days of arriving in Australia demonstrates seriousness of offending — offender chose weapon that could be brought into Australia without detection, and a mode of attack that could be executed with speed and scant preparation — guilty plea — s 16A(2)(g) — rehabilitation — s 16A(2)(n) — offender’s early plea of guilty has utilitarian value — full, frank and immediate admission does not demonstrate good prospects of rehabilitation as admissions made because offender was proud of her actions ‘believing them to be those of a martyr’ — deportation — offender did not demonstrate that deportation after release from custody will result in hardship — ‘scant evidence’ that offender would be at risk of extra-judicial punishment upon return to Bangladesh — sentence — offender sentenced to 42 years’ imprisonment with a 31 year and 6 month non-parole period
  • 5 June 2019 —

    R v Khan (No 11) [2019] NSWSC 594 — engaging in a terrorist act offence — victim of the offence — nature and circumstances of the offence — rehabilitation — contrition — mental condition — general deterrence

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    sentence — engaging in a terrorist act offence contrary to s 101.1(1) of Commonwealth Criminal Code — offender repeatedly stabbed victim with hunting knife, resulting in physical injury — victim of the offence — s 16A(2)(ea) — victim impact statements — whether ‘victim of the offence’ includes witnesses to stabbing attack — distinguished from R v Nahlous [2013] NSWCCA 90 where the family of a groomed child was not considered a victim of the offence — while effect of offending most profound on victim stabbed, offending had impact on those who witnessed aspects of offending, actively intervened to assist stabbed victim, and felt threat to personal safety as consequence of offending — nature and circumstances of the offence — s 16A(2)(a) — offending not spontaneous, attack planned to be commissioned on or near anniversary of September 11 — offender sought to obtain international recognition of offending — offender’s radicalisation relevant to assessment of objective seriousness — would be wrong in principle to sentence offender by drawing comparison between offence and attempted murder — offender’s religious and ideological motivation, and intention to intimidate government distinguish offender’s acts from offences against the person — fact that offending of greater gravity or with multiple victims may be envisaged, does not mean present offending was not serious — above mid-range of objective seriousness — rehabilitation — s 16A(2)(n) — contrition — s 16A(2)(f) — offender’s prospects of rehabilitation largely dependent upon ‘complete and unconditional abandonment’ of extremist ideology held at time of offending — offender admitted lying to medical practitioners in hope that jury would fine him not guilty on grounds of mental illness — fact that offender’s ideology was the subject of offender’s lies, means little weight can be given to claims that offender has now abandoned ideology — mental condition — s 16A(2)(m) — general deterrence — s 16A(2)(ja) — offender suffers from schizophrenia and/or OCD — no causal connection to offending — fact that offender has mental illness must have some onerous effect on conditions of custody — general deterrence remains relevant and is not significantly moderated by mental health considerations given nature of offending — sentence — offender sentenced to 36 years’ imprisonment with a 27 year non-parole period
  • 29 May 2019 —

    R v Turner [2019] NSWDC 206 — child exploitation offence — objective seriousness — antecedents — general deterrence — specific deterrence — rehabilitation — contrition

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    sentence — use of carriage service to transmit indecent material to person under age of 16 years offence contrary to s 474.27A(1) of Commonwealth Criminal Code guilty plea — offender indicated pleas of guilty at earliest opportunity and should be afforded consideration for facilitating the course of justice taking into account utilitarian value — offender afforded 25% discount for plea of guilty — objective seriousness — victim 15 years of age and offender 35 years of age at time of offending — victim’s age very much towards upper end of age range contemplated by offence — this does not make matter less serious, rather matter would be more serious if victim was younger — while clear there was a sexual motive behind message, sentencing judge could not regard it as grooming type behaviour — pre-planning (obtaining material, retaining it and finding victim on Facebook) and nature of material being video of actual activity rather than “chats” — video seen by two victims in that one of victim’s friends also saw part of the material — matter well within mid-range of seriousness — antecedents — s 16A(2)(m) — while criminal history of offender not particularly extensive, history is such that offender not entitled to any particular leniency — uncontroversial that fact offence committed while offender at conditional liberty is a matter of aggravation — offender has been assaulted on two occasions in response to offending — sentencing judge prepared to find some extra curial punishment however impact on sentence to be imposed is not in any way significant — specific deterrence — s 16A(2)(j) — rehabilitation — s 16A(2)(n) — given offender’s record and breaches of bonds taken with fact that there has already been attempts at rehabilitation, cannot find on balance offender unlikely to re-offend — in all circumstances, noting two previous attempts at rehabilitation and admitted use of illicit substances sentencing judge not prepared to find on balance good prospects of rehabilitation — much will depend on how offender engages with appropriate professionals — SAR assessed as medium risk of reoffending — given this assessment and breach of conditional liberty court cannot conclude on balance offender unlikely to reoffend — contrition — s 16A(2)(f) — offender has good level of insight into trauma and distress offence caused and appears genuine — offender is remorseful and has shown genuine contrition — offender has accepted responsibility for what they did and acknowledges that it was entirely inappropriate — degree to which offender shown contrition is difficult to quantify but in circumstances of case, noting victim was in court at time offender gave evidence, there is little more offender could do — sentence imposed 12 months’ imprisonment — offender to be released on recognizance after 4 months for remaining period of 8 months
  • 24 May 2019 —

    IM v The Queen [2019] NSWCCA 107 — preparatory terrorism offence — guilty plea — rehabilitation — contrition

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    appeal against sentence — conspiracy to commit preparatory terrorism act offence contrary to ss 11.5 and 101.6(1) of Commonwealth Criminal Code — original sentence imposed 13 years and 6 months imprisonment — offender aged 14 years and 2 months at time of offence — guilty plea — s 16A(2)(g) — application of Xiao v The Queen [2018] NSWCCA 4 — sentencing judge in error by not having regard to utilitarian value of offender’s guilty plea — plea will be of limited benefit when entered on first day of trial — discount of 10% granted — rehabilitation — s 16A(2)(n) — contrition — s 16A(2)(f) — despite offender not giving evidence in court of renunciation of extremist beliefs held at time of offending, sentencing judge correct in assessing offender’s prospects of rehabilitation as favourable — sentencing judge correct in considering offender’s supportive family, developing maturity and unqualified acceptance ‘that what he did was seriously wrong’ as relevant to prospects of rehabilitation — appeal allowed — offender resentenced to 10 years’ and 9 months imprisonment with 8 year non-parole period — sentence to be served as juvenile offender up to offender attaining 21 years of age
  • 24 May 2019 —

    R v Jones [2019] QDC 79 — flying without a license — guilty plea — antecedents — age — general deterrence — s 19B — objective seriousness

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    sentence — 5 counts of operating Australian aircraft without a license offence contrary to s 20AB of Civil Aviation Act 1988 (Cth) and 1 count of making a false commonwealth document offence contrary to s 144.1 of Commonwealth Criminal Code — one count of providing a false or misleading information to the Civil Aviation Authority (CASA) contrary to s 135.1(7) of Commonwealth Criminal Code taken into account pursuant to s 16BA — guilty plea — s 16A(2)(g) — guilty pleas show cooperation in administration of justice and have saved the cost of a trial — antecedents age — s 16A(2)(m) — unusual feature of this case is offender held US Commercial Pilot’s Licence license and an Australian Private Pilot’s Licence — offender young at the time (22 to 24 at time of offending) with family pressures on offender concerning career — incidents of poor flying appear to have occurred some time ago and offender flown many hours since — general deterrence — deterrence is an important sentencing consideration for these charges — CASA is charged with safety of our airways and it is crucial that people be appropriately licensed when flying aircraft — there are real dangers involved with agricultural flying e.g. wirestrikes —false document charge serious as CASA has important responsibilities and it is important that persons not be deceitful to CASA — s 19B — despite offender’s otherwise good character and antecedents not appropriate case for s 19B bond in light of number of charges and hours flown when offender knew they were not authorised — objective seriousness —offences not trivial or committed under extenuating circumstances — not an isolated event offending involved a lot of flying and making a false document — offender knew they were not entitled to fly for reward without an Australian Commercial Pilot’s Licence — false document charge more serious, as some degree of planning and deception involved — sentence imposed — 6 months’ imprisonment and $2000 fine — offender released on recognizance for 2 years

Recent Updates to Commentary View All

Recent Legislative Amendments View All

  • 7 December 2016 —

    Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth) — amends Crimes Act 1914 (Cth)

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    court to explain sentence — inserts note into s 16F(1) — when sentencing an offender for an offence referred to in paragraph 105A.3(1)(a) of the Commonwealth Criminal Code the court must warn the offender about continuing detention orders under s 105A.23 of the Commonwealth Criminal Code
  • 27 November 2015 —

    Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) — amends Crimes Act 1914 (Cth)

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    — general deterrence — inserts new s 16A(2)(ja) — court to have regard to the deterrent effect that any sentence or order under consideration may have on other persons — Commentary on this amendment has been incorporated into the database, see Deterrence   — co-operation — repeals s 21E — inserts new s 16AC — court can reduce sentence, order or non-parole period in recognition of undertaking to co-operate with law enforcement agencies — DPP given new right to appeal where offender has not co-operated in accordance with undertaking when offender’s sentence has expired — Commentary on this amendment has been incorporated into the database, see Co-operation   — non-parole periods and recognizance release orders — repeals and replaces s 19AB — removes option for court to make a recognizance release order where the sentence imposed exceeds three years — inserts new s 19AB(2)–(3) — court can decline to set a non-parole period or fix a recognizance release order where offender expected to be serving a State or Territory sentence immediately after the end of the federal sentence — Commentary on this amendment has been incorporated into the database, see Non Parole Period and Recognizance Release Orders   — rectification of errors — inserts new s 19AHA — sets out powers of court to correct Commonwealth sentencing orders which contain technical errors, defects of form, or ambiguity — Commentary on this amendment has been incorporated into the database, see Non Parole Period and Recognizance Release Orders   — release on licence — inserts new s 19AP(4A) — matters to which the Attorney-General may have regard when deciding whether to grant a licence — extensive co-operation not already taken into account at sentence — serious medical treatment required — Commentary on this amendment has been incorporated into the database, see Release on Parole or Licence   — parole — inserts new s 19AKA — purposes of parole are protection of the community, rehabilitation of the offender and reintegration of the offender into the community — Commentary on this amendment has been incorporated into the database, see Release on Parole or Licence   — parole orders — inserts new s 19ALA — matters to which the Attorney-General may have regard when considering whether to make or refuse to make a parole order — inserts new s 19AL(4)–(6) — clarifies application of s 19AL when Attorney-General making parole orders for joint Commonwealth and State offenders — inserts new s 19AL(3A) — provides criteria for considering applications for early release on parole — repeals s 19AP(8)–(9) — inserts new s 19APA — expands power of Attorney-General to amend parole orders and licences — Commentary on this amendment has been incorporated into the database, see Release on Parole or Licence   — conditional release — inserts new s 20(1A) — requires court to specify that where a person is subject to the supervision of a probation officer they will not travel interstate or overseas without the probation officers written permission — Commentary on this amendment has been incorporated into the database, see Conditional Release Orders After Conviction   — alternative sentencing options — repeals s 20AB(1) — inserts new s 20AB(1) — updates list of types of orders as alternatives to imprisonment that should be available for federal offenders — clarifies courts power to pass a similar sentence or order to the named orders — Commentary on this amendment has been incorporated into the database, see Additional Sentencing Alternatives

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