Citation: Mostafa Shiddiquzzaman v R; Mohammad Junaid Thorne v R [2015] NSWDC 244
Court: District Court of New South Wales
Date: 6 August 2015
Judge: Judge AC Scotting
Background
Two co-offenders, referred to here as the first appellant and the second appellant, appealed against the severity of sentences imposed on them in the Local Court following guilty pleas to Commonwealth offences involving the use of false identification on a carriage service. Each had pleaded guilty to one count of using false identification information via the internet to obtain an air ticket, and two counts of boarding a flight using a ticket obtained through that false identification.
The facts were agreed. The first appellant booked three domestic air tickets under fictitious names using his own credit card, recording his co-offender's frequent flyer number in the process. The co-offenders and a third man then used those boarding passes to fly from Perth to Brisbane and on to Sydney on 8 December 2014. The motivation, according to admissions made during a police record of interview, was partly curiosity and partly to conceal that the two men were travelling together, given that the second appellant had a high profile in the media.
Virgin Australia security staff alerted the Australian Federal Police Joint Counter Terrorism Team, prompting an investigation. Both appellants were subsequently arrested, and items including boarding passes and the credit card used for the booking were located during searches. Each pleaded guilty and was sentenced to imprisonment in the Local Court, with the appeal brought on the basis that those sentences were excessive.
Legal Issues
- Whether the Local Court sentences imposed on each appellant were manifestly excessive
- What weight should be given to general and specific deterrence, given the nature of the offending and the involvement of counter-terrorism resources
- Whether the degree of planning, the role of each offender, and the media profile of one appellant were relevant to sentencing
- Whether parity required the sentences of the two appellants to be adjusted relative to each other and to the co-offender
- Whether alternatives to full-time imprisonment, such as an Intensive Corrections Order or Home Detention, were appropriate for either appellant
Decision
The District Court allowed both appeals, finding that the sentences imposed in the Local Court were excessive. In conducting the appeal as a rehearing under the Crimes (Appeal and Review) Act 2001, the Court resentenced both men afresh, taking into account all subjective and objective circumstances.
For the first appellant, the Court found that his youth (aged 19), absence of prior convictions, genuine prospects for rehabilitation, and lesser role in the overall scheme warranted a reduced sentence. The Court also took his psychological evidence and character references into account. It referred him for assessment for an Intensive Corrections Order as an alternative to full-time imprisonment, adjourning that aspect of his appeal for finalisation.
For the second appellant, the Court identified several aggravating features that distinguished his position. These included his greater role in the offending, his older age, his media profile (which was the stated reason for using false names), and his failure to fully accept responsibility for his conduct. The Court considered that these factors, combined with the need for both general and specific deterrence, made alternatives to full-time imprisonment inappropriate. However, the overall sentence was still reduced from that imposed in the Local Court, with a longer than usual recognizance release order period built in to support rehabilitation.
The Court observed that the offending triggered a counter-terrorism response, even though the conduct was not itself terrorism-related. This had implications for general deterrence, given the potential diversion of law enforcement resources and the vulnerability of aviation security systems to this type of conduct.
Orders Made
For the second appellant (Mr Thorne):
- Appeal against severity of sentence allowed
- Local Court sentence set aside and replaced with:
- 3 months imprisonment (concurrent) for each offence contrary to s 376.3(2) of the Criminal Code Act 1995 (Cth), commencing 6 August 2015 and expiring 5 November 2015
- 7 months imprisonment for the offence contrary to s 376.3(1), commencing 6 September 2015, with a recognizance release order after 3 months (releasing him on 5 December 2015)
- Total effective sentence: 8 months imprisonment, with release on recognizance after 4 months
For the first appellant (Mr Shiddiquzzaman):
- The Court determined imprisonment was the only appropriate penalty but referred him for Intensive Corrections Order assessment
- His appeal was adjourned part-heard to 6 October 2015, pending that assessment
Key Takeaways
- Flying on domestic aircraft under fictitious names, booked via the internet, constitutes a Commonwealth offence under s 376.3 of the Criminal Code Act 1995 (Cth), with a maximum penalty of 12 months imprisonment and/or a fine of $10,200 per count.
- General deterrence carries significant weight where offending of this kind diverts counter-terrorism and law enforcement resources, regardless of whether any terrorism nexus is established.
- Parity between co-offenders is a relevant sentencing consideration: where two offenders are sentenced for the same conduct, differences in role, culpability, age, and acceptance of responsibility can justify meaningfully different outcomes.
- A stated motivation of concealing travel to protect a media profile does not mitigate offending; in this case it formed part of the objective circumstances the Court weighed in sentencing.
- Alternatives to full-time custody, such as Intensive Corrections Orders, remain available for federal offenders but are not automatic: the Court assessed their suitability individually for each offender based on age, rehabilitation prospects, and the nature of the offending role.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 376.3(1) and 376.3(2)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17, 20(2)
- Crimes Act 1914 (Cth)
- Crimes Regulations 1990 (Cth)
Cases:
- Johnson v The Queen (2004) 78 ALJR 616
- Weininger v The Queen (2003) 212 CLR 629
- Veen v R (No 2) (1988) 164 CLR 465
- R v McNaughton (2006) 66 NSWLR 566
- Baumer v R (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No 5) [2009] NSWSC 432
- Putland v The Queen (2004) 218 CLR 174
- Cameron v The Queen (2002) 209 CLR 339
- Lee v The Queen [2012] NSWCCA 123
- Green v The Queen (2011) 244 CLR 462
- Lowe v The Queen (1984) 154 CLR 606