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District Court 30 June 2016

R v MO (No 2)

[2016] NSWDC 145

Public order & justice offences
CRIMINAL LAW SENTENCE CORRECTION BREACH OF CONTROL ORDER TERRORISM OFFENCE.

Citation: R v MO (No 2) [2016] NSWDC 145
Court: District Court of NSW
Date: 30 June 2016
Judge: Berman SC DCJ

Background

In January 2016, the sentencing judge imposed a term of imprisonment of two and a half years on an offender who had been convicted of contravening a control order under s 104.27 of the Criminal Code, a terrorism offence. The judge set a non-parole period of 18 months, with the offender to be released on a recognisance release order at that point.

The error in the sentence went undetected for several months. It was only shortly before the scheduled release date of 22 June 2016 that the Commonwealth Director of Public Prosecutions (CDPP) notified the court, having itself been alerted by the Attorney General's Department, that the sentence did not comply with s 19AG of the Crimes Act. That provision requires that, where a person is convicted of a terrorism offence, the court must set a non-parole period of at least three-quarters of the head sentence. On a head sentence of two and a half years, the minimum non-parole period would have been 22.5 months, not 18 months.

The CDPP applied under s 19AHA of the Crimes Act to have the defective sentencing order corrected. By the time the matter was heard, 22 June 2016 had already passed, and the offender remained in custody on a separate matter.

  • Whether the original sentence was defective for failing to comply with the mandatory minimum non-parole period under s 19AG of the Crimes Act for terrorism offences
  • Whether the defect should be remedied by increasing the non-parole period or by reducing the head sentence so that the existing non-parole period of 18 months satisfied the three-quarters requirement
  • What weight should be given to the fact that both the court and the prosecution contributed to the error

Decision

The court accepted that the original sentence was defective. Section 19AG of the Crimes Act mandates a non-parole period of at least three-quarters of the head sentence for terrorism offences, and the 18-month non-parole period on a two-and-a-half-year head sentence fell short of that requirement. The court acknowledged the error as its own, but also accepted the CDPP's concession that the prosecution bore fault for failing to draw s 19AG to the court's attention at the time of sentencing.

The CDPP submitted that the head sentence should remain at two and a half years and the non-parole period should be extended, arguing that the head sentence properly reflected the objective seriousness of the offending. The court rejected this approach. The judge reasoned that there is no single "correct" sentence, and that a sentence of two years would not necessarily be inadequate to reflect the gravity of the conduct. Critically, the judge was unwilling to impose additional time in custody on the offender as a consequence of errors made jointly by the court and the prosecution.

The court quashed the original sentence and re-sentenced the offender to two years imprisonment, backdated to 23 December 2014, with a non-parole period of 18 months expiring on 22 June 2016. The practical effect was that the offender moved onto parole in respect of this offence without serving any additional time beyond what had already been served.

Orders Made

  • The sentence of imprisonment imposed on 29 January 2016 was quashed
  • The offender was re-sentenced to a term of imprisonment of 2 years, backdated to commence on 23 December 2014
  • A non-parole period of 18 months was imposed, expiring on 22 June 2016
  • The offender was placed on parole in respect of this offence as a result of these orders

Key Takeaways

  • Under s 19AG of the Crimes Act, a court sentencing a person for a terrorism offence must set a non-parole period of at least three-quarters of the head sentence; failure to do so renders the order defective
  • Section 19AHA of the Crimes Act empowers the court to correct a defective sentencing order on application by the DPP, even after a significant period has elapsed
  • The District Court held that where both the prosecution and the sentencing court contributed to a sentencing error, it was unjust to remedy that error in a way that extended the offender's time in custody
  • There is no single mathematically correct sentence: reducing a head sentence to bring a fixed non-parole period into compliance with the statutory minimum can be a permissible correction, even where the Crown argues the original head sentence better reflected objective seriousness
  • The defect was not identified by the prosecution until the Attorney General's Department raised it, highlighting the practical importance of prosecutorial familiarity with mandatory sentencing provisions applicable to terrorism offences

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 104.27 (contravening a control order)
- Crimes Act 1914 (Cth), s 19AG (mandatory minimum non-parole period for terrorism offences)
- Crimes Act 1914 (Cth), s 19AHA (power to correct defective sentencing orders)

Cases cited: None recorded in the judgment.