Citation: R v Biber [2018] NSWSC 535
Court: Supreme Court of New South Wales
Date: 27 April 2018
Judge(s): Adamson J
Background
The offender, an Australian citizen of Turkish descent born in August 1992, travelled from Australia to Syria in July 2013 at the age of 20 years and 11 months. He travelled with three other young men, organised by a Sydney-based facilitator, with the intention of joining an Australian combatant then fighting with insurgent groups in Syria. The group entered Syria via Turkey through the Bab al-Hawa border crossing, where members of Ahrar al-Sham (AAS) met them.
The offender was not arrested until 3 November 2016, more than three years after his return to Australia. He was charged with one count of entering a foreign state with intent to engage in hostile activity, contrary to section 6(1)(a) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The maximum penalty for that offence is 20 years imprisonment.
The offender pleaded guilty on 9 February 2018, following an indication of a guilty plea in October 2017. Sentencing proceeded on the basis of agreed facts signed by both parties.
Legal Issues
- What sentence was appropriate for an offence of entering a foreign state with intent to engage in hostile activities, having regard to the purposes of sentencing under Commonwealth law?
- What discount, if any, applied for the utilitarian value of the guilty plea?
- How should the offender's youth and immaturity at the time of the offence bear on the sentence?
- How did the significant delay between the offence and arrest affect the sentencing considerations, particularly specific deterrence and prospects of rehabilitation?
- What non-parole period was appropriate, given that no fixed ratio applies to Commonwealth offences?
Decision
Adamson J held that the only appropriate sentence was full-time imprisonment. The seriousness of the offence, reflected in the 20-year maximum penalty, and the need for both general deterrence and punishment required a custodial sentence. Her Honour noted the offence involved travelling to an active conflict zone with the clear intention of participating in armed hostilities, organised through a coordinated network that also supplied other Australian fighters to Syria.
Her Honour allowed a discount for the utilitarian value of the guilty plea. The plea was entered after a statement of agreed facts was prepared, but it nonetheless saved the court and the community the cost and time of a trial.
The offender's age at the time of the offence, just under 21, and his immaturity were treated as mitigating factors going to both moral culpability and prospects of rehabilitation. Immaturity reduced the weight otherwise given to general deterrence in fixing the sentence.
The delay of over three years between the commission of the offence and the arrest was a significant sentencing consideration. By the time of sentencing, the offender had demonstrated a period of law-abiding conduct in the community. This bore upon specific deterrence and supported a finding of genuine prospects of rehabilitation. Her Honour was required under section 19AB of the Crimes Act 1914 (Cth) to fix a non-parole period, and noted that no statutory or judicially determined ratio between the non-parole period and the head sentence applies to Commonwealth offences. The non-parole period was fixed to reflect the minimum period of actual incarceration appropriate in all the circumstances.
Orders Made
- The offender was convicted of the count on the indictment.
- Sentenced to imprisonment for 4 years and 9 months, commencing 3 November 2016 and expiring 2 August 2021.
- Non-parole period fixed at 2 years and 6 months, expiring 2 May 2019.
Key Takeaways
- A conviction under section 6(1)(a) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) for entering a foreign state with intent to engage in hostile activity carries a maximum of 20 years imprisonment, and the Supreme Court confirmed that full-time custody is required for this type of offending.
- Youthful immaturity at the time of the offence operates as a mitigating factor, reducing moral culpability and diminishing the weight otherwise accorded to general deterrence.
- Significant delay between the commission of an offence and arrest is a relevant sentencing consideration: where an offender has lived lawfully in the community during that interval, it can support findings of reduced need for specific deterrence and genuine rehabilitation prospects.
- Under Commonwealth sentencing law, no fixed ratio governs the relationship between the non-parole period and the head sentence. Section 19AB of the Crimes Act 1914 (Cth) requires a non-parole period, to be set at the minimum period of actual incarceration warranted by all the circumstances.
- A guilty plea attracts a discount for its utilitarian value even where it follows the preparation of agreed facts, provided it still saves the resources that a contested hearing would have consumed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), ss 16A, 16E, 16F, 17A, 19AB
- Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 6, 7
- Crimes Legislation Amendment Act 1987 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24 and 47
- Criminal Code (Terrorist Organisation - Islamic State) Regulation 2014 (Cth)
- Criminal Code (Terrorist Organisation - Jabhat al-Nusra) Regulation 2013 (Cth)
Cases:
- Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; [2004] HCA 46
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
- R v Blacklidge (Unreported, Court of Criminal Appeal, 12 December 1995)
- R v Forbes [2005] NSWCCA 377
- R v Mohammed [2016] VSC 581
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
- Xiao v R [2018] NSWCCA 4