Citation: R v Musleh (No 4) [2018] NSWSC 1653
Court: Supreme Court of New South Wales
Date: 31 October 2018
Judge: Adamson J
Background
The accused pleaded guilty to an offence under s 7 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), which carries a maximum penalty of 10 years' imprisonment. The offence related to travel to Syria in June or July 2013. Charges were not laid until November 2016, and a trial listed for November 2018 was vacated after the guilty plea, with sentencing scheduled for 6 November 2018.
A co-offender, who had travelled to Syria with the accused, had pleaded guilty to a related but more serious offence under s 6 of the same Act (entering a foreign state with intent to engage in hostile activity, maximum penalty 20 years). Adamson J had previously sentenced that co-offender, and the Crown had appealed that sentence to the Court of Criminal Appeal, with the appeal heard on 10 August 2018.
The question before the court on 31 October 2018 was whether to proceed with the scheduled sentence hearing on 6 November 2018 or adjourn it to await the Court of Criminal Appeal's judgment on the co-offender's sentence.
Legal Issues
- Whether the sentence hearing should be adjourned until the Court of Criminal Appeal had delivered its judgment on the Crown appeal against the co-offender's sentence.
- Whether the parity principle applied as between the accused and his co-offender, despite their having been charged with and pleading guilty to different offences.
- Whether proceeding with the sentence hearing on a piecemeal basis would serve the interests of justice.
Decision
Adamson J accepted that the accused could not properly be sentenced before the Court of Criminal Appeal had published its orders and reasons in the co-offender's matter. The two men were treated as co-offenders engaged in the same criminal enterprise, and it was common ground that the parity principle applied to them despite the different charges each faced.
Her Honour considered whether to begin the hearing on 6 November 2018 and adjourn it part-heard pending the appellate decision. She rejected that course. The Crown had indicated that issues raised before the Court of Criminal Appeal might affect the content of the agreed facts and the Crown's submissions on those facts, making a piecemeal approach potentially unjust to both parties.
Adamson J instead adjourned the sentence hearing to 7 December 2018. She noted her concern about further delay given that the offence was committed in mid-2013 and proceedings had already taken considerable time to reach the sentencing stage. The new date was chosen to allow the Court of Criminal Appeal adequate time to deliver its judgment while still ensuring the accused was sentenced within the calendar year.
Orders Made
- The sentence hearing, previously listed for Tuesday 6 November 2018, was adjourned to Friday 7 December 2018 at 10:00am before Adamson J.
- Order (2) made on 6 August 2018 was varied to extend the time for the parties to serve their evidence and submissions to 5:00pm on Tuesday 4 December 2018, with copies to be provided to the judge's Associate by the same time and date.
Key Takeaways
- Parity principles, as affirmed in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, can apply between co-offenders even where each has pleaded guilty to a different offence arising from the same criminal enterprise.
- Where a Crown appeal against a co-offender's sentence remains undetermined, it may be inappropriate to proceed to sentence the remaining offender before the appellate court has published its decision.
- A part-heard approach to sentencing, proceeding before an appellate decision is available and then reconvening for further submissions, was rejected here because the pending appeal had the potential to affect the agreed factual basis and the Crown's submissions, meaning it would not serve the interests of justice.
- The court balanced the need to await appellate guidance against the principle that further delay should be avoided, particularly where the offending occurred years before sentencing was reached.
- Under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6 (entering a foreign state with intent to engage in hostile activity, maximum 20 years) and s 7 (maximum 10 years) can give rise to related but distinct liability for co-participants in the same criminal enterprise.
Legislation and Cases Referenced
Legislation
- Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 6 and 7
Cases
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49