Citation: Khazaal v R (No 2) [2013] NSWCCA 140
Court: Court of Criminal Appeal, New South Wales
Date: 13 June 2013
Judge(s): McClellan JA, Hall J, McCallum J
Background
The applicant had been convicted by jury of making a document connected with assistance in a terrorist act, contrary to s 101.5(1) of the Criminal Code Act 1995 (Cth). The document was a book in Arabic compiling online articles with the applicant's own commentary, containing religious justifications for violent struggle and practical guidance on assassination. The trial judge sentenced him to 12 years' imprisonment with a non-parole period of 9 years.
His conviction appeal was initially upheld by the Court of Criminal Appeal, which quashed the conviction and ordered a new trial. During the period between that decision and the Crown's successful appeal to the High Court, the applicant was at liberty on conditional bail for approximately 399 days. The High Court ultimately restored the conviction and remitted the sentence appeal to the Court of Criminal Appeal for determination.
On remittal, two questions arose: whether the original sentence appeal had merit, and whether the court had power to adjust the sentence to account for the time the applicant spent on bail while his conviction was provisionally quashed.
Legal Issues
- Whether the original grounds of appeal against sentence (including objective seriousness, use of foreign convictions, deterrence, and alleged manifest excess) should be accepted
- Whether this Court's jurisdiction on remittal extended beyond determining the sentence appeal
- Whether the court had statutory power to adjust the non-parole period to account for the 399 days the applicant spent on bail pending the Crown's High Court appeal
Decision
On the sentence appeal itself: McCallum J (with McClellan JA and Hall J agreeing) adopted McClellan JA's earlier reasoning, finding no error in the original sentence. The trial judge had correctly assessed the offence as not far removed from the worst category under s 101.5(1), and the sentence of 12 years with a 9-year non-parole period was not manifestly excessive given the gravity of the conduct.
On the scope of jurisdiction under the remittal: The Court confirmed that its authority on remittal from the High Court is strictly confined to the terms of the remitter order. The remitter authorised only the determination of the offender's sentence appeal. Accordingly, the court could not make any order inconsistent with those terms, regardless of whether some other course might better reflect justice in the circumstances.
On the power to adjust for time spent on bail: McCallum J conducted a detailed examination of the relevant statutory provisions. Sections 18 and 25A of the Criminal Appeal Act 1912 address time spent on bail pending an offender's own appeal, and s 28A confers power to adjust sentence in that event. However, no equivalent provision exists for bail spent pending a Crown appeal against an order quashing a conviction. Section 43 of the Crimes (Sentencing Procedure) Act 1999 and s 6(3) of the Criminal Appeal Act also had no application on the facts.
The Court held that, as a court deriving its powers exclusively from statute, it could not substitute its own sense of individual justice for the absence of a statutory power. The anomaly would need to be addressed by parliament, not the courts. The Crown's request was refused.
Orders Made
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that its jurisdiction on remittal from the High Court is strictly confined by the terms of the remitter order; no orders may be made that go beyond what the remitter authorises.
- Under the Criminal Appeal Act 1912, there is a statutory mechanism allowing adjustment of sentence for time an offender spends on bail pending their own appeal, but no equivalent power exists to adjust a sentence for time spent on bail pending a Crown appeal against an order quashing a conviction.
- A court whose powers derive exclusively from statute cannot exercise a jurisdiction it does not have merely to achieve a result it considers just in a particular case; the remedy for any anomalous gap in power lies with the legislature.
- In dismissing the sentence appeal, the court found no error in the trial judge's assessment that the offence of making a document connected with assistance in a terrorist act was not far removed from the worst category, warranting a sentence towards the upper end of the range.
- Where a High Court remittal is confined to a specific question (here, the sentence appeal), arguments that go beyond that question, including the Crown's submission about bail time, fall outside the court's authority regardless of their apparent merit.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 11.1, 11.4, 101.1, 101.5(1), 101.5(5)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
- Criminal Appeal Act 1912 (NSW), ss 6(3), 7, 18, 25A, 28A
- Crimes Act 1914 (Cth)
- Security Legislation Amendment (Terrorism) Act 2002 (Cth)
Key Cases:
- R v Khazaal [2012] HCA 26; (2012) 289 ALR 586 (High Court restoring conviction and remitting sentence appeal)
- Khazaal v R [2011] NSWCCA 129; (2011) 265 FLR 276 (earlier CCA decision quashing conviction)
- R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 45 (scope of jurisdiction on High Court remittal)
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470
- Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638
- R v Boughen; R v Cameron [2012] NSWCCA 17; (2012) 215 A Crim R 476
- Anderson v R [2010] NSWCCA 130; (2010) 202 A Crim R 68