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Supreme Court 13 December 2018

R v Musleh (No 5)

[2018] NSWSC 1927

Public order & justice offences
CRIMINAL LAW SENTENCING PLEA OF GUILTY AGE AND IMMATURITY OF OFFENDER DELAY IN CHARGING GOOD PROSPECTS OF REHABILITATION

Citation: R v Musleh (No 5) [2018] NSWSC 1927
Court: Supreme Court of New South Wales
Date: 13 December 2018
Judge: Adamson J

Background

The offender, an Australian citizen of Palestinian descent, pleaded guilty to performing services to promote or support foreign hostile activities, contrary to s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The maximum penalty for that offence is 10 years' imprisonment. The offending occurred between 13 June and 11 July 2013, when the offender was a young man.

The offence involved helping three other Australian men, Caner Temel, Mehmet Biber, and Tyler Casey, travel from Sydney to Syria via Turkey to engage in armed hostilities. The offender arranged air tickets, hotel bookings, meetings, foreign currency exchanges, and communications with contacts at the Syrian-Turkish border, as well as liaising with Hamdi Alqudsi, who coordinated the operation from Sydney. The group intended to join an Australian fighting in Syria on behalf of armed anti-government factions, including Ahrar Al-Sham.

The court also took into account a related "Form Offence" under s 16BA of the Crimes Act 1914 (Cth): that the offender himself travelled from Australia to Turkey as an act preparatory to entering Syria to engage in armed hostilities. The offender did not admit to actually entering Syria.

  • What sentence was appropriate for a young offender who pleaded guilty to facilitating others' entry into Syria for armed conflict?
  • What weight should be given to the offender's age and immaturity at the time of the offending?
  • How should delay in charging the offender affect the sentence?
  • How should the principles of general deterrence and punishment be balanced against the offender's prospects for rehabilitation?
  • What sentencing option was available given the nature and seriousness of the offence, including the need to consider non-custodial alternatives?
  • What allowance should be made for time spent in custody and onerous bail conditions?

Decision

Adamson J imposed a sentence of full-time imprisonment, finding that the seriousness of the offence and the importance of general deterrence and punishment made any non-custodial or community-based sentence inappropriate. The court expressly considered, and rejected, a community correction order and an intensive correction order as put forward by the offender's counsel.

The court weighed several mitigating factors in the offender's favour. These included his plea of guilty (entered on 6 August 2018), his age and relative immaturity at the time of the offending in 2013, the significant delay between the offending and the charges, and what the court assessed as good prospects of rehabilitation. Character references from the offender's wife, mother, and a friend were accepted and given some weight, though discounted because their authors did not give sworn evidence. A letter of apology from the offender was also given limited weight for the same reason, though the court accepted parts of it that amounted to admissions or were corroborated by the agreed facts.

The court backdated the commencement of the sentence to 13 August 2018 to account for 29 days already spent in custody, and made some further allowance for approximately two years during which the offender had been subject to strict bail conditions. Because of the length of the sentence, the court was required by s 19AC(1) of the Crimes Act 1914 (Cth) to make a recognizance release order, directing the offender's release after serving one year, on condition of good behaviour for the remainder of the term.

Orders Made

  • The offender was convicted of the count on the indictment.
  • Sentenced to imprisonment for 2 years and 1 month, commencing 13 August 2018 and expiring 12 September 2020.
  • A recognizance release order was made under s 20(1)(b) of the Crimes Act 1914 (Cth), directing that on 12 August 2019, after serving 1 year, the offender be released on giving surety of $100 (without security) and entering into a recognizance to be of good behaviour for the remaining 1 year and 1 month, expiring 12 September 2020.

Key Takeaways

  • A conviction under s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) for performing services to facilitate others' entry into a foreign state for armed hostilities carries a maximum of 10 years' imprisonment and, in the court's assessment, requires a full-time custodial sentence where general deterrence and punishment are significant sentencing objectives.
  • The sentencing court treated the offender's youth and immaturity at the time of offending as genuine mitigating factors, though these did not displace the need for imprisonment given the gravity of the conduct.
  • Substantial delay between the offending (2013) and the charge, combined with a prolonged period on strict bail conditions, was taken into account in moderating the sentence, including by backdating its commencement.
  • Where an offender does not give sworn evidence, letters of apology and character references from non-sworn deponents will be given reduced weight, though admissions within such documents that are corroborated by agreed facts may still be accepted.
  • Under s 19AC(1) of the Crimes Act 1914 (Cth), a sentence of sufficient length triggers a mandatory requirement to make a recognizance release order, which the court must structure by reference to the principles in Power v The Queen (1974) 131 CLR 623 and the requirements of s 19AF.

Legislation and Cases Referenced

Legislation
- Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 6, 7
- Crimes Act 1914 (Cth), ss 16A, 16BA, 16F, 17A, 19AC, 19AF, 20
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 33

Cases
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146
- Blanco v R [1999] NSWCCA 121; (1999) 106 A Crim R 303
- Dunn v R [2018] NSWCCA 108
- Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31
- Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; [2004] HCA 46
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
- R v Alqudsi [2016] NSWSC 1227
- R v Biber [2018] NSWCCA 271; [2018] NSWSC 535
- R v Cartwright (1989) 17 NSWLR 243
- R v Lamella [2014] NSWCCA 122
- R v Mohamed [2016] VSC 581
- R v Webb [2004] NSWCCA 330
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- The Queen v Olbrich (1