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6
Court of Criminal Appeal 29 November 2018

R v Biber

[2018] NSWCCA 271

Public order & justice offences
CRIME SENTENCING PAROLE PERIOD WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: R v Biber [2018] NSWCCA 271
Court: NSW Court of Criminal Appeal
Date: 29 November 2018
Judge(s): Meagher JA; Hoeben CJ at CL; Fagan J

Background

The respondent pleaded guilty to entering Syria in 2013 with the intent to engage in armed hostilities, an offence under s 6(1)(a) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), carrying a maximum penalty of 20 years imprisonment. He travelled from Turkey into Syria, joined Ahrar al-Sham, an insurgent group opposing the Assad government that had never been designated a terrorist organisation in Australia. During approximately three months in Syria, he posed in photographs with automatic weapons and participated in two informal "training" sessions involving shooting at cans at a rubbish tip, before returning to Turkey.

At first instance, Adamson J sentenced the respondent to 4 years and 9 months imprisonment, with a non-parole period of 2 years and 6 months. The Commonwealth Director of Public Prosecutions appealed, arguing the sentence was too lenient. The Crown accepted throughout that the offending was not a terrorist offence.

  • Whether the sentencing judge erred in characterising the objective seriousness of the offending as "well below the mid-range of seriousness"
  • Whether the sentencing judge erred in finding the respondent had "reasonable" prospects of rehabilitation
  • Whether the sentence was manifestly inadequate

Decision

On objective seriousness, the Court of Criminal Appeal found the sentencing judge's assessment was reasonably open. The respondent's intention at the time of entry into Syria was general in character, not the product of detailed planning or organisation, and was dependent on decisions made by others. The sentencing judge did not take into account conduct after entry into Syria in assessing objective seriousness, though the Court noted such post-entry conduct could have been relevant to illuminate the nature and extent of the respondent's intent at the time. Separately, the sentencing judge also properly declined to treat the respondent's belief that overthrowing the Assad government was a "noble" cause as a factor elevating objective seriousness.

On rehabilitation, the Court found the sentencing judge's conclusion that prospects were "reasonable" was open on the evidence. The weight assigned to each relevant factor in that assessment was a matter within her Honour's discretion, and no error was established.

On manifest inadequacy, the Court reiterated that appellate intervention on this ground requires the appellate court to be driven to conclude that some misapplication of principle must have occurred. The Crown did not contend that Adamson J failed to consider any relevant matter under s 16A(2) of the Crimes Act 1914 (Cth). Because conduct caught by s 6 of the foreign incursions legislation does not require any terrorist element, the heightened sentencing principles applied in terrorism cases did not automatically apply here. The Court was not persuaded the sentence was clearly unjust, and dismissed all grounds of appeal.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that appellate intervention on manifest inadequacy grounds requires the court to be driven to conclude that a misapplication of sentencing principle must have occurred, not merely that a different outcome was available.
  • Objective seriousness under s 6(1)(a) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) is assessed by reference to the respondent's intention at the time of entry into the foreign state; post-entry conduct may be relevant to illuminate the nature and extent of that intent but is not the primary measure.
  • An offence of entering a foreign state with intent to engage in hostile activity is not necessarily a terrorist offence, and the heightened sentencing principles applied in terrorism cases do not automatically follow from prosecution under the foreign incursions legislation.
  • A respondent's subjective belief that a foreign conflict has a "noble" purpose does not, of itself, reduce the objective seriousness of the offending.
  • The weight to be assigned to individual sentencing factors, including prospects of rehabilitation, remains a matter of discretionary judgment for the sentencing judge, and appellate courts will not interfere merely because a different weighting was open.

Legislation and Cases Referenced

Legislation:
- Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6
- Crimes Act 1914 (Cth), s 16A
- Crimes Legislation Amendment Act 1987 (Cth), s 22
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Alqudsi v Commonwealth of Australia (2015) 91 NSWLR 92; [2015] NSWCA 351
- CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Director of Public Prosecutions (Cth) v MHK (2017) 52 VR 272; [2017] VSCA 157
- House v The King (1936) 55 CLR 499
- Lodhi v The Queen (2007) 179 A Crim R 470; [2007] NSWCCA 360
- R v Alqudsi [2016] NSWSC 1227
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v Pham (2015) 256 CLR 550; [2015] HCA 39
- R v Succarieh; R v Succarieh; Ex parte Commonwealth Director of Public Prosecutions [2017] QCA 85
- The Queen v Ashdown [2003] VSCA 216