Citation: R v Mallah [2005] NSWSC 317
Court: Supreme Court of New South Wales
Date: 21 April 2005
Judge(s): Wood CJ at CL
Background
The prisoner was a young man whose application for a passport was refused in 2002 by the Department of Foreign Affairs and Trade (DFAT), following an ASIO assessment that he was likely to engage in conduct prejudicing Australia's security. That refusal caused him significant distress, as it prevented him from travelling to Lebanon for personal and family reasons. He sought review before the Administrative Appeals Tribunal, and the matter attracted substantial media coverage.
Over the following months, the prisoner's anger towards government agencies deepened. He acquired a rifle and ammunition, and documents found at his home included a handwritten will, a manifesto identifying ASIO as a target, and material relating to jihad. After a fine for firearms offences in the Local Court, he continued engaging with media outlets and presenting himself in a manner consistent with someone who welcomed public attention around his grievances.
A Counter Terrorist Command operative, posing as a freelance journalist, made contact with the prisoner between late November and early December 2003. During those discussions, the prisoner made threats to kill ASIO or DFAT officers in the course of a planned siege. He was arrested on 3 December 2003. He faced two counts of preparing or planning a terrorist act, and one count of recklessly threatening serious harm to a Commonwealth public official by reason of that person's official status. A jury acquitted him of the terrorism counts in April 2005, but he had earlier pleaded guilty to the threatening offence.
Legal Issues
- What sentence was appropriate for recklessly making a threat to cause serious harm to a Commonwealth public official by reason of that official's status, contrary to s 147.2 of the Criminal Code Act 1995 (Cth)?
- How should the sentencing court weigh personal deterrence and rehabilitation against general deterrence for this type of offending?
- What weight should be given to the prisoner's troubled background, mental health, and the circumstances in which the threats were made?
- How should time already served in strict custody be accounted for in the sentence?
Decision
Wood CJ at CL considered the circumstances of the offence carefully, noting that although the terrorism charges had failed at trial, the threatening offence was closely connected to the same factual background. The threats were made to an undercover operative and related to a plan to stage a siege at ASIO or DFAT premises, during which the prisoner said he intended to kill staff. The court found this was serious offending involving real animus towards identifiable public officials.
At the same time, the court accepted a number of mitigating factors. The prisoner was young, had a troubled upbringing, and suffered from identifiable psychological vulnerabilities. He had, to a significant degree, craved public attention in an otherwise empty life. The court also accepted that his plea of guilty, though entered partway through trial, carried some utilitarian value and indicated a degree of contrition.
The court placed considerable weight on prospects for rehabilitation. The Muslim community, including the Mufti Sheik Hilaly and the Lebanese Muslim Association, had offered mentoring and support. The sentencing orders were structured to give practical effect to that support during the period of supervised release.
On the question of general deterrence, the court recognised that threats to Commonwealth officials by reason of their status warranted a firm response. However, the court balanced that consideration against the prisoner's personal circumstances and the availability of community-based support, arriving at a sentence designed to achieve both purposes.
Orders Made
- The prisoner was sentenced to imprisonment for 2 years and 6 months, backdated to commence on 3 December 2003 and to expire on 2 June 2006.
- An order was made for release on 2 September 2005 on a recognisance (without surety) subject to the following conditions:
- Good behaviour for 2 years from the date of release.
- Supervision by the NSW Probation and Parole Service, with compliance with all reasonable directions as to conduct.
- Directions could include taking up accommodation offered through the Mufti Sheik Hilaly or the Lebanese Muslim Association, and attendance at and participation in mentoring and other programs offered by that Association and its Youth Guidance Leader.
- The effective custodial period was 1 year and 9 months from 3 December 2003, with the balance subject to the recognisance release order.
Key Takeaways
- Recklessly threatening serious harm to a Commonwealth public official by reason of that official's status is a serious offence warranting both personal and general deterrence, even where associated terrorism charges do not result in conviction.
- Where a plea of guilty is entered partway through trial, some utilitarian and mitigating value may still be recognised, particularly when combined with evidence of contrition.
- Sentencing courts may structure release conditions to facilitate specific rehabilitation programs, including community-based mentoring arrangements, where credible support is available and prospects for rehabilitation are genuine.
- A sentence will be backdated to the date of remand in custody, and allowance may be made for the strict conditions under which a prisoner has been held before sentence.
- The acquittal on more serious terrorism charges did not insulate the prisoner from a meaningful custodial sentence for the related threatening offence, which was assessed on its own facts and the applicable sentencing principles.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), ss 101.6(1) and 147.2
- Crimes Act 1914 (Cth)
Cases
- R v Doff [2005] NSWCCA 119
- R v Israil [2002] NSWCCA 255
- R v Lawrence [2005] NSWCCA 91
- R v Scognamiglio (1991) 56 A Crim R 81