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Supreme Court 1 September 2016

R v Alqudsi

[2016] NSWSC 1227

Public order & justice offences
CRIMINAL LAW SENTENCING SENTENCING COMMONWEALTH OFFENCE SEVEN OFFENCES PAROLE AND TOTAL TERM

Citation: R v Alqudsi [2016] NSWSC 1227
Court: Supreme Court of New South Wales
Date: 1 September 2016
Judge(s): Adamson J

Background

Following a jury trial, the offender was convicted on 12 July 2016 of seven counts of performing services for persons with the intention that those persons enter Syria to engage in armed hostilities, contrary to s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The maximum penalty for each offence was ten years' imprisonment. The offences were committed between 25 June and 14 October 2013, during the Syrian civil war.

The seven counts related to seven separate individuals for whom the offender provided assistance. Those individuals subsequently travelled, or attempted to travel, to Syria to join anti-government forces. The offender facilitated their travel by performing various services, connecting them with a contact already fighting in Syria.

The sentencing hearing required the court to determine the appropriate penalties across seven discrete offences, in circumstances where there was no established statutory ratio or judicial norm governing the relationship between the non-parole period and the total term for this type of Commonwealth offending.

  • What weight should be given to general deterrence and denunciation in sentencing for offences under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)?
  • How should multiple sentences for seven separate offences be structured and cumulated, consistent with the totality principle?
  • What is the appropriate ratio between the non-parole period and the total term of imprisonment, given the absence of a prescribed statutory ratio or judicially established norm for these Commonwealth offences?
  • What adverse or mitigating facts could properly be taken into account, and to what standard of proof?

Decision

Adamson J applied the principle, drawn from The Queen v Olbrich [1999] HCA 54, that facts adverse to the offender must be established beyond reasonable doubt, while facts favourable to the offender need only be proved on the balance of probabilities. Her Honour also acknowledged a third category of matters forming part of the narrative that do not strictly fall into either evidential category.

The court treated general deterrence and denunciation as particularly significant sentencing considerations. The Crimes (Foreign Incursions and Recruitment) Act 1978 was enacted in response to United Nations resolutions requiring nation states to prevent and penalise foreign fighters and those who assist them. The court found that the community interest in discouraging this kind of conduct, and in marking its seriousness, warranted substantial sentences.

The seven individual sentences of four to four-and-a-half years were structured with partial cumulation, producing an overall effective sentence of eight years. Her Honour applied the totality principle to ensure the aggregate was just and proportionate. Each sentence was ordered to commence at a different date, cascading across the sentencing period.

On the question of the non-parole period, the court noted the absence of any statutory ratio or judicially determined norm applicable to these Commonwealth offences. Adamson J declined to impose a lengthy parole supervision period, finding that the offender's prospects of rehabilitation would not be materially improved by extending parole, and that the balance of term after the non-parole period would provide sufficient supervision for reintegration.

Orders Made

  • Count 1: 4 years' imprisonment, commencing 12 July 2016, expiring 11 July 2020
  • Count 2: 4 years' imprisonment, commencing 12 November 2016, expiring 11 November 2020
  • Count 3: 4 years' imprisonment, commencing 12 March 2017, expiring 11 March 2021
  • Count 4: 4 years and 6 months' imprisonment, commencing 12 July 2017, expiring 11 January 2022
  • Count 5: 4 years' imprisonment, commencing 12 July 2018, expiring 11 July 2022
  • Count 6: 4 years' imprisonment, commencing 12 July 2019, expiring 11 July 2023
  • Count 7: 4 years' imprisonment, commencing 12 July 2020, expiring 11 July 2024
  • Overall effective sentence: 8 years, commencing 12 July 2016, expiring 11 July 2024
  • Single non-parole period of 6 years, expiring 11 July 2022

Key Takeaways

  • Offences under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) carry a maximum of ten years per count, and the Supreme Court treated general deterrence and denunciation as especially weighty considerations given the international legislative context underpinning the Act.
  • Where there is no prescribed statutory ratio or established judicial norm governing the non-parole fraction for a particular category of Commonwealth offence, the sentencing court retains full discretion in fixing the non-parole period, guided by the general sentencing principles in the Crimes Act 1914 (Cth).
  • Partial cumulation of individual sentences across seven counts produced an overall effective term significantly shorter than the total of all individual sentences, reflecting the application of the totality principle to ensure the aggregate remained proportionate to the overall criminality.
  • The evidential framework confirmed by Olbrich applied throughout: adverse facts required proof beyond reasonable doubt, favourable facts required proof on the balance of probabilities, and narrative context fell outside either formal category.
  • Prospects of rehabilitation were assessed as a distinct consideration; the court found that an extended parole period was not warranted where the balance of term after the non-parole period was itself sufficient to support community reintegration.

Legislation and Cases Referenced

Legislation
- Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 6, 7
- Crimes Act 1914 (Cth), ss 16A, 16B, 16F
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 86

Cases
- The Queen v Olbrich [1999] HCA 54; 199 CLR 270
- Weininger v The Queen [2003] HCA 14; 212 CLR 629
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Johnson v The Queen [2004] HCA 15; 78 ALJR 616
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Power v The Queen (1974) 131 CLR 623
- R v Simpson [2001] NSWCCA 534
- Veen v The Queen (No 2) (1988) 164 CLR 465