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2
Supreme Court 2 March 2018

R v EB

[2018] NSWSC 201

Public order & justice offences
CRIMINAL LAW SENTENCE FOREIGN INCURSION OFFENCES SS 119.1 AND 119.4 CRIMINAL CODE (CTH) S 16BA OFFENCE OFFENDER TO CROSS FROM TURKEY TO SYRIA

Citation: R v EB [2018] NSWSC 201
Court: Supreme Court of New South Wales
Date: 2 March 2018
Judge: Davies J

Background

The offender, identified only as "EB" due to suppression orders, was an Australian citizen who committed two foreign incursion offences under the Criminal Code (Cth) when he was aged 16 and 17. The offending was underpinned by his adherence to an extremist ideology and support for Islamic State.

The first offence, taken into account under s 16BA of the Crimes Act 1914 (Cth), involved preparatory acts between January 2015 directed towards entering Syria to engage in hostile activities. The second and principal offence, committed between April and September 2016, involved the offender making telephone calls to obtain assistance for a co-offender, Amin Elmir, to cross from Turkey into Syria, with the intention of supporting Elmir's commission of a foreign incursion offence. No assistance was actually obtained.

The offender pleaded guilty on 6 October 2017. The central sentencing question, beyond the length of the sentence, was whether the entire term should be served as a juvenile offender under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW), given that the offender had turned 18 before sentencing.

  • What was the appropriate sentence for foreign incursion offences committed by a juvenile, having regard to the objective seriousness of the conduct and the offender's subjective circumstances?
  • Did "special circumstances" exist under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW) to justify ordering that the offender serve the whole sentence as a juvenile offender after turning 18?
  • What constitutes an "unacceptable risk" of physical or psychological harm for the purposes of s 19, and did that risk arise on the facts?

Decision

Davies J assessed the objective seriousness of the offending as low. The preparatory and supportive nature of the conduct, the absence of any actual assistance provided, and the distance of the offending from any direct harm to the Australian community all reduced its objective gravity. The judge distinguished acts preparatory to foreign incursions from terrorist acts directed more immediately at harm in Australia, though acknowledged the offending remained serious given its ideological underpinning.

Significant weight was given to the offender's subjective circumstances. He was 16 and 17 at the time of the offending, had been radicalised through what the court accepted resembled a process of brainwashing, and had developed what was described as an addiction to Islamic State propaganda. By the time of sentencing, he had shown genuine insight into his past conduct and had made progress in reassessing his beliefs.

On the juvenile detention question, Davies J found special circumstances under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW). The court identified several convergent factors: the offender was likely to be incarcerated in the High Risk Management Correctional Centre (HRMCC), approximately 60% of whose population had been convicted of terrorism or foreign incursion offences; the offender knew a number of those prisoners personally; and the offender himself expressed a genuine and credible fear of being re-radicalised through exposure to those individuals. The court found there would be an unacceptable risk of psychological harm in the form of re-radicalisation if the offender were not detained as a juvenile.

Orders Made

  • The offender was sentenced to imprisonment for two years and three months, commencing 3 November 2016 and expiring 2 February 2019, with a non-parole period of one year, eight months and one week, expiring 9 July 2018.
  • The entire sentence was ordered to be served as a juvenile offender under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW).
  • The offender was warned, pursuant to s 105A.23 of the Criminal Code (Cth), that an application may be made for a continuing detention order requiring detention after the sentence expires.

Key Takeaways

  • Re-radicalisation through prison exposure to co-ideologues can constitute "psychological harm" sufficient to meet the "unacceptable risk" threshold under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW), justifying detention as a juvenile beyond the age of 18.
  • Where a juvenile offender's radicalistion is found to resemble a process of brainwashing and addiction, those subjective circumstances carry substantial weight in mitigation at sentencing for foreign incursion offences.
  • Acts preparatory to, or supportive of, foreign incursions are treated as less serious than terrorist acts directed more directly at harm within Australia, though they remain serious offences attracting potential life sentences under the Criminal Code (Cth).
  • The High Risk Management Correctional Centre's population composition, specifically the high proportion of prisoners convicted of terrorism and foreign incursion offences, was treated as a relevant and weighty factor in the s 19 analysis.
  • Under s 105A.23 of the Criminal Code (Cth), a court sentencing for certain offences must warn the offender that a continuing detention order application may follow the expiry of the sentence.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 100.1, 105A, 117.1, 119.1, 119.4
- Crimes Act 1914 (Cth), ss 16A, 16BA, 19AG
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
- Bail Act 2013 (NSW)
- Court Suppression and Non-publication Orders Act 2010 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- DPP (Cth) v MHK [2017] VSCA 157
- Hoare v The Queen (1989) 167 CLR 348
- Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
- R v Alqudsi [2016] NSWSC 1227
- R v Lodhi (2006) 199 FLR 364
- R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365