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Supreme Court 11 December 2018

R v HG

[2018] NSWSC 1849

Public order & justice offences
CRIMINAL LAW OFFENCES SENTENCE OFFENCES SENTENCE SERIOUS OFFENDING

Citation: R v HG [2018] NSWSC 1849
Court: Supreme Court of New South Wales
Date: 11 December 2018
Judge(s): Bellew J

Background

The offender, identified only as HG, was a young person who was convicted by jury of doing acts in preparation for, or planning, a terrorist act under the Criminal Code 1995 (Cth). The offending occurred over approximately one week in October 2016, when the offender was 16 years old. He was arrested in possession of knives and camouflage clothing, and had taken deliberate steps to avoid being traced.

The Crown established that the offending was motivated by adherence to an extremist ideology, including a belief that the Australian Government was "evil," and that the offender's actions were consistent with propaganda published by Islamic State. A terrorist act was found to have been imminent at the time of arrest. A co-accused stood trial simultaneously, but the jury could not reach a verdict in that matter.

The offender pleaded not guilty and, even at sentence, maintained his innocence and offered innocent explanations for his possession of the knives. Those explanations had been squarely rejected by the jury. The sentencing proceedings required Bellew J to assess the appropriate penalty, taking into account the serious nature of terrorism preparatory offences alongside the offender's youth.

  • What sentence is appropriate for a 16-year-old convicted of preparing for a terrorist act, which carries a maximum penalty of life imprisonment?
  • How should the objective seriousness of the offending be assessed, including the role of extremist ideology and the imminence of the planned act?
  • To what extent does youth operate as a mitigating factor where the offending is serious and the behaviour is described as "adult-like"?
  • How should the court weigh the offender's continued denial of the offence and apparent lack of remorse when assessing rehabilitation prospects and community protection?
  • What weight should be given to general deterrence in terrorism sentencing, even where ideological motivation may reduce the practical effect of deterrence?

Decision

Bellew J applied the established principles for sentencing terrorism offenders, identifying community protection, punishment, denunciation, and both general and specific deterrence as the primary considerations. His Honour noted that subjective factors and rehabilitation receive reduced weight in this category of offending, and that the religious or ideological motivation of the offender directly bears on the objective seriousness of the offence and on the ongoing risk to the community.

On objective seriousness, the court found the offending to be very serious. The offender had displayed extremist views from as young as 12 years of age, had taken active steps to avoid detection, and a terrorist act was imminent at the time of his arrest. The offending was consistent with Islamic State propaganda. The offender's continued refusal to accept the verdict meant that the prospects for rehabilitation were uncertain, and community protection therefore assumed heightened importance.

On the question of youth, Bellew J acknowledged that the offender's age at the time of the offending was a relevant mitigating factor under both the Children (Criminal Proceedings) Act 1987 (NSW) and the Crimes Act 1914 (Cth). However, his Honour found that the conduct was adult-like in character and that the mitigatory weight ordinarily accorded to youth was substantially reduced in circumstances of serious offending of this nature. The court drew on Victorian and NSW appellate authority establishing that youth does not operate as a uniform discount in cases involving grave conduct.

The court also addressed the offender's continued denial at the sentencing hearing. Consistent with established principle, his Honour did not treat the denial as an aggravating factor, but found it was relevant in that it precluded any finding of genuine remorse and affected the assessment of rehabilitation.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In sentencing for terrorism preparatory offences, community protection, denunciation, and general deterrence take primacy over subjective factors and rehabilitation, particularly where the offender retains extremist views.
  • The objective seriousness of preparatory terrorism conduct is assessed by reference to the degree of planning and commitment, the duration of involvement, the depth of radicalisation, and the imminence of the intended terrorist act at the time of arrest.
  • Youth is a recognised mitigating factor in serious criminal proceedings, but its weight is significantly diminished where the conduct is adult-like in character and the offending falls at the serious end of the spectrum.
  • An offender's continued denial of guilt at the sentencing hearing does not aggravate the sentence, but it is relevant to the absence of remorse and to the assessment of rehabilitation prospects and ongoing community risk.
  • General deterrence retains its importance in terrorism sentencing even where ideological motivation may reduce its practical effectiveness, reflecting Parliament's clear intention in prescribing a maximum penalty of life imprisonment for preparatory acts.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth)
- Crimes Act 1914 (Cth)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- R v Khalid and ors [2017] NSWSC 1365
- Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 383
- R v Elomar and ors [2010] NSWSC 10; (2010) 264 ALR 759
- DPP (Cth) v MHK (A Pseudonym) [2017] VSCA 157
- DPP v Besim [2017] VSCA 158
- DPP (Cth) v Fattal [2013] VSCA 276
- Benbrika v R (2010) 29 VR 593; [2010] VSCA 281
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- JM v R (2012) 223 A Crim R 55; [2012] NSWCCA 83
- KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
- HJ v R [2014] NSWCCA 21
- Lodhi v R (2007) 179 A Crim R 470
- R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691
- R v Khazaal [2009] NSWSC 1015
- R v Sharrouf [2009] NSWSC 1002
- R v Barot [2007] EWCA Crim 1119
- R v Kahar [2016] 1 WLR 3156; [2016] EWCA Crim 568
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Issacs (1997) 41 NSWLR 374
- R v Martin (1990) 1 Cr App 477