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Court of Criminal Appeal 28 February 2018

Naizmand v R

[2018] NSWCCA 25

Public order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Naizmand v R [2018] NSWCCA 25
Court: Court of Criminal Appeal, NSW
Date: 28 February 2018
Judges: Hoeben CJ at CL, Price J, Fullerton J

Background

The appellant was subject to a Federal Court control order issued in March 2015 and confirmed in November 2015. The order arose from findings that he was part of a Sydney group supporting Islamic State and was considered willing and able to commit a terrorist act. The order prohibited him from accessing electronic media depicting terrorist propaganda, weapons, suicide attacks, or material associated with Islamic State.

Between January and February 2016, the appellant breached the control order on five occasions by watching extremist videos on his mobile phone via YouTube. The material included recruitment propaganda, advocacy of violent jihad, and graphic imagery. He was arrested on 29 February 2016, and items including a handwritten notebook containing notes on a jihadist chant were found at his home.

In the District Court, after pleading guilty in the Local Court, he was sentenced to four years imprisonment with a non-parole period of three years. The sentencing judge applied a 15 per cent discount for the guilty pleas. The appellant sought leave to appeal, arguing that discount was insufficient.

  • Whether the sentencing judge correctly applied the guilty plea discount under s 16A(2)(g) of the Crimes Act 1914 (Cth), in particular whether the discount was limited to utilitarian considerations or could encompass broader subjective factors
  • Whether a 15 per cent discount for the guilty pleas was appropriate given the circumstances, including the strength of the Crown case

Decision

The Court of Criminal Appeal granted leave to appeal but ultimately dismissed the appeal. Fullerton J (with Hoeben CJ at CL and Price J agreeing) accepted that the sentencing judge may have treated the 15 per cent discount as limited to the utilitarian value of the pleas, without considering the full range of subjective factors available under s 16A(2)(g) of the Crimes Act 1914 (Cth). This constituted a sentencing error that justified the Court undertaking a resentencing exercise.

On resentencing, Fullerton J applied a discount of 20 per cent, finding that s 16A(2)(g) permits a court sentencing for Commonwealth offences to take into account both utilitarian and other subjective considerations when assessing the value of a guilty plea. Her Honour noted that remorse and contrition are separately accounted for under s 16A(2)(f), but that other subjective factors bearing on the plea remain relevant under s 16A(2)(g). The Crown's submission that the overwhelming strength of the evidence was a relevant limiting factor was accepted.

Notwithstanding the higher discount, the Court concluded that no lesser sentence than that originally imposed was warranted. The objective seriousness of the deliberate and repeated defiance of the control orders, the absence of remorse, and the continuing need for both general and specific deterrence each pointed against reducing the sentence below that originally imposed. The final result was therefore the same head sentence and non-parole period as had been imposed in the District Court.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 16A(2)(g) of the Crimes Act 1914 (Cth), a sentencing court dealing with Commonwealth offences may consider both utilitarian and broader subjective factors when assessing the value of a guilty plea, not just the utilitarian benefit of saving court time and resources.
  • Remorse and contrition are separately accounted for under s 16A(2)(f), but other subjective considerations remain available under s 16A(2)(g), and these provisions may overlap in practice.
  • The strength of the Crown case is a relevant factor in assessing the weight of a guilty plea, as it bears on whether the plea reflects a genuine willingness to facilitate the course of justice.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an increased discount on resentencing does not automatically translate into a reduced sentence where objective seriousness and deterrence considerations are sufficiently weighty.
  • Sentences for deliberate and repeated breaches of court-imposed control orders must reflect the legislative purpose of the control order regime, which is designed to operate well before conduct manifests in actual violence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code Act 1995 (Cth), s 104.4, s 104.27

Cases
- Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
- Kentwell v The Queen [2014] HCA 37
- R v Mo (No 1) [2016] NSWDC 144
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Touma [2008] NSWSC 1475
- The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
- Xiao v R [2018] NSWCCA 4