AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Supreme Court 8 May 2017

R v Ghazzawy

[2017] NSWSC 474

Public order & justice offences
CRIMINAL LAW OFFENCES SENTENCE PLEA OF GUILTY PRACTICE AND PROCEDURE

Citation: R v Ghazzawy [2017] NSWSC 474
Court: Supreme Court of New South Wales
Date: 8 May 2017
Judge: Bellew J

Background

The offender, aged 18 at the time of the offending and 21 at sentencing, pleaded guilty to intentionally making documents connected with preparation for a terrorist act, contrary to s 101.5(1) of the Criminal Code 1995 (Cth). The offence carries a maximum penalty of 15 years imprisonment. The documents, which were handwritten and partly authored by the offender, were found in December 2014 at a property in Regents Park, Sydney.

The documents outlined plans to attack two specific targets: the Australian Federal Police building and Lithgow jail. They also described a "gorilla warfare" strategy in the Blue Mountains. The offender was a member of a group of individuals under investigation by the Joint Counter Terrorism Team for an alleged conspiracy to commit terrorist acts; other members of that group faced separate conspiracy charges in related proceedings.

The offender did not give sworn evidence at the sentencing hearing. A psychologist's report was tendered on his behalf, addressing both the circumstances of the offending and his claimed renunciation of extremist beliefs. The Crown did not contest the plea of guilty, and the sentencing proceeded on an agreed statement of facts.

  • What weight should be given to hearsay statements made by an offender to a psychologist, and to the psychologist's opinions based on those statements, where the offender does not give sworn evidence?
  • What findings could be made about rehabilitation and the offender's renunciation of extremist beliefs, given the evidentiary limitations?
  • How should the youth of the offender be balanced against the statutory sentencing requirements and the need for general deterrence, protection of the community, and denunciation?
  • Whether the court could make a finding of "special circumstances" to extend the parole period beyond the statutory minimum under the Crimes Act 1914 (Cth) for a federal offender?

Decision

Bellew J identified that the offending was serious. The documents were not merely abstract; they identified specific targets and outlined methods of attack, and the evidence indicated they were shared among group members and actively discussed. The offence warranted significant weight being given to general deterrence, denunciation, and community protection.

On the psychologist's report, Bellew J gave it limited weight. Because the offender did not give sworn evidence, statements he had made to the psychologist about the circumstances of the offending and his alleged renunciation of extremist beliefs were hearsay. The court was not prepared to accept those statements, or the psychologist's opinions derived from them, at face value. His Honour declined to make unqualified findings of contrition or deradicalisation.

The court accepted, with caution, that the guilty plea and other matters, including the offender's expressed desire to enrol in the PRISM deradicalisation program and the absence of further offending, were some evidence of a move away from extremist beliefs. However, Bellew J was explicit that in terrorism cases rehabilitation carries less weight than in other offending, consistent with the authorities. The guilty plea was nonetheless accepted as evidence of some contrition.

On the question of the parole period, the offender's counsel submitted that a longer than usual parole period would assist in confirming deradicalisation. Bellew J rejected this approach. Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which allows a finding of special circumstances to adjust the ratio of non-parole to head sentence, does not apply to federal offenders. Section 19AG of the Crimes Act 1914 (Cth) instead mandates a non-parole period of not less than three-quarters of the head sentence.

Orders Made

  • The offender was convicted.
  • Sentenced to imprisonment for 8 years and 6 months, commencing 15 December 2015 and expiring 14 June 2024.
  • Non-parole period fixed at 6 years and 4 months, commencing 15 December 2015 and expiring 14 April 2022.

Key Takeaways

  • Where an offender does not give sworn evidence at a sentencing hearing, statements made to a psychologist and opinions derived from those statements carry only limited weight as hearsay, even when the report is tendered without objection.
  • A guilty plea and expressed willingness to participate in a deradicalisation program may constitute some cautious evidence of a move away from extremist beliefs, but courts in terrorism cases will not readily make unqualified findings of rehabilitation or renunciation in the absence of sworn evidence.
  • Under s 19AG of the Crimes Act 1914 (Cth), a non-parole period for a federal offender must be at least three-quarters of the head sentence; the state "special circumstances" provision in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) has no application to federal offenders.
  • In terrorism-related offending, considerations of general deterrence, community protection, and denunciation carry substantial weight; rehabilitation assumes relatively less significance than in other categories of offending.
  • The Supreme Court treated the offender's youth as a relevant mitigating factor, but it did not displace the primacy of the offence's seriousness, the specific targets identified in the documents, and the group context in which the offending occurred.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), s 101.5(1)
- Crimes Act 1914 (Cth), s 19AG
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases
- Benbrika v R (2010) 29 VR 593; [2010] VSCA 281
- Cameron v R (2002) 209 CLR 339; [2002] HCA 6
- Elomar v R [2014] NSWCCA 303; (2014) 300 FLR 323
- Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- R v Benbrika [2009] VSC 21; (2009) 222 FLR 433
- R v Elomar and ors [2010] NSWSC 10; (2010) 264 ALR 759
- R v Kahar; R v Ziamani [2016] 1 WLR 3156; [2016] EWCA Crim 568
- R v Khazaal [2009] NSWSC 1015
- R v Martin (1999) 1 Cr App Rep (S) 477
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Sharrouf [2009] NSWSC 1002