Citation: R v MO (No 1) [2016] NSWDC 144
Court: District Court of New South Wales
Date: 29 January 2016
Judge: Berman SC DCJ
Background
The offender, a Sydney-born man referred to as MO, was subject to an interim control order made by the Joint Counter-Terrorism Team and served on him on 18 December 2014. Among its terms, the order expressly prohibited him from using any mobile or public telephone service that had not been approved by the relevant authorities. Four days after being served, MO obtained approval to use a specific telephone service, demonstrating clear awareness of the order's requirements.
Despite that knowledge, MO went on to breach the control order on three occasions. He travelled some distance from home to use a public telephone twice in quick succession, and separately used an unapproved mobile telephone. The calls were made to the same person, and the Crown conceded that the content of the conversations was trivial. MO had been on bail at the time.
MO was taken into custody on 23 December 2014 and was held in conditions described as severe, involving significant restrictions on movement, work, and education within the correctional facility. He ultimately pleaded guilty to all three breaches, though the pleas came late, after committal for trial, while legal advice was sought on whether the control order itself could be successfully challenged.
Legal Issues
- What sentence was appropriate for three counts of deliberately breaching an interim terrorism control order?
- How should the lateness of the guilty pleas affect the sentence discount for facilitation of justice?
- What weight should be given to the unusually harsh conditions of pre-sentence custody?
- How should the competing sentencing considerations of general and personal deterrence be balanced against the offender's subjective circumstances?
Decision
Berman SC DCJ rejected the defence submission that the offences sat at the lower end of the scale of objective seriousness. His Honour characterised the conduct as the offender "deliberately thumbing his nose" at the control order and the authorities who imposed it. The fact that the telephone conversations contained no reference to terrorist acts did not reduce the objective gravity, since the very purpose of the control order was to protect the public by restricting communications, and breaching it diverted counter-terrorism resources regardless of the content of the calls.
The late guilty pleas attracted a sentencing discount of approximately 15 percent, reduced from a potentially higher discount because of the significant delay before entry of the pleas. His Honour accepted that some time had been needed to explore whether the control order could be challenged, but noted that a greater willingness to facilitate justice had been available and not taken.
General deterrence was identified as a primary sentencing consideration. The District Court reasoned that control orders must be obeyed and that deliberate non-compliance by anyone subject to such an order warrants a sentence of real significance as a signal to others. Personal deterrence was also significant, given that MO was on bail at the time of the offences and had shown a clear disregard for his obligations under both the control order and his bail conditions.
In mitigation, his Honour accepted that the conditions of MO's pre-sentence custody were unusually severe, limiting his access to rehabilitation programmes and affecting his mental wellbeing. The Court reduced the sentence it would otherwise have imposed to account for the likelihood that the custodial term would be served under those same conditions. MO's relatively unremarkable background and his expressed plans for education and future employment were also taken into account.
Orders Made
- MO was sentenced to imprisonment for all three offences, with the sentence to date from 23 December 2014.
- A head sentence of two and a half years imprisonment was imposed.
- MO was to be released pursuant to a recognisance release order after serving 18 months, resulting in a release date of 22 June 2016.
Key Takeaways
- Deliberate breach of a terrorism control order, even where the conduct appears trivial on its face, will not automatically be treated as falling at the lower end of the objective seriousness scale; the court will look to the nature of the conduct and the offender's state of mind.
- General deterrence carries particular weight in sentencing for control order breaches, on the basis that compliance is essential to the effective operation of counter-terrorism measures.
- A late guilty plea, entered only after exploring the viability of challenging the underlying order, attracts a reduced discount for facilitation of justice compared with an early plea.
- Unusually severe pre-sentence custody conditions, including restricted movement and limited rehabilitation opportunities, are a recognised mitigating factor that may reduce the sentence an offender would otherwise receive.
- The District Court confirmed that nothing less than a fulltime custodial sentence was warranted where an offender on bail knowingly and deliberately disregards the terms of a terrorism control order.
Legislation and Cases Referenced
Legislation:
- Commonwealth legislation concerning control orders (specific Act not identified in the judgment)
Cases cited: No cases were cited in the judgment text provided.