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11
Court of Criminal Appeal 24 May 2019

IM v R

[2019] NSWCCA 107

Also reported as (2019) 100 NSWLR 110
Public order & justice offences
CRIME APPEAL AGAINST SENTENCE WHERE ERROR CONCEDED BY CROWN NEED TO RESENTENCE SENTENCING TERRORIST OFFENCE CONSPIRACY

Citation: IM v R [2019] NSWCCA 107
Court: New South Wales Court of Criminal Appeal
Date: 24 May 2019
Judges: Meagher JA (principal judgment); RA Hulme J and Button J (agreeing)

Background

The appellant, identified only as IM, was 14 years and 2 months old when he participated in a conspiracy to do acts in preparation for a terrorist act or acts, contrary to ss 11.5 and 101.6(1) of the Criminal Code 1995 (Cth). The conduct occurred over approximately six weeks in late 2014 in Sydney and involved a group of co-offenders. IM was described in the agreed facts as holding a high level within the group.

On 31 July 2017, the day a six-week trial was due to begin, IM and two adult co-offenders pleaded guilty. The sentencing judge imposed a term of 13 years and 6 months imprisonment with a non-parole period of 10 years and 1 month. The offence carries a maximum penalty of life imprisonment.

IM sought leave to appeal, raising six grounds. The Crown conceded that the sentencing judge had erred by failing to apply a discount for the purely utilitarian value of the guilty plea, following the Court of Criminal Appeal's later decision in Xiao v R (2018), which had overturned the approach previously taken in Tyler v R (2007). That conceded error required the Court of Criminal Appeal to resentence IM entirely.

  • Whether the sentencing judge erred by failing to discount the sentence for the utilitarian value of the guilty plea to a federal offence, in light of Xiao v R
  • How the objective seriousness of terrorist offences should be assessed, including whether it matters that no specific terrorist act was finalised or carried out
  • What weight should be given to punishment, deterrence, and protection of the community when sentencing for serious terrorist offences
  • Whether IM's extreme youth (14 years and 2 months) and prospects of rehabilitation could substantially reduce the sentence otherwise warranted

Decision

Guilty plea discount: The Crown conceded, and the Court accepted, that the sentencing judge had followed the since-overturned approach in Tyler v R, failing to allow any discount for the utilitarian value of the guilty plea. This conceded error required the Court to resentence IM afresh rather than simply adjust the original sentence.

Objective seriousness: The Court held that terrorist offending is objectively serious because it threatens democratic government and the security of the state, and is most serious where it involves an intended threat to human life. The legislation under which these offences were created is specifically designed to intercept and prevent terrorism at an early stage. Accordingly, the Court held that it is not relevant to the assessment of objective seriousness that the specific terrorist act or acts, and their timing, had not been resolved at the time the conspiracy was disrupted.

Punishment, deterrence, and protection of the community: For the most serious terrorist offences, the Court confirmed that the principal sentencing considerations are punishment, general and personal deterrence, and protection of the community. The Court further noted that an ideological or religious motive does not necessarily diminish the significance of deterrence as a sentencing factor.

Youth and rehabilitation: The Court acknowledged IM's extreme youth and his genuine prospects of rehabilitation as mitigating factors. However, it held that in the context of serious terrorist offending, these factors carry substantially less weight than they would for other types of offending. A notional starting point of 12 years was identified before a 10% discount was applied for the utilitarian value of the guilty plea, producing a sentence of 10 years and 9 months. The Court also found special circumstances under the Children (Criminal Proceedings) Act 1987 (NSW), ordering that IM serve his sentence as a juvenile offender until he turned 21.

Orders Made

  • The sentencing orders made on 3 November 2017 were set aside.
  • IM was sentenced to imprisonment for 10 years and 9 months, commencing 31 July 2017 and expiring 30 April 2028.
  • A non-parole period of 8 years was specified, commencing 31 July 2017 and expiring 30 July 2025.
  • IM was ordered to serve his sentence as a juvenile offender until attaining the age of 21 on 12 September 2021, pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW).
  • IM was warned, pursuant to s 105C of the Criminal Code, that an application for a continuing detention order may be made after completion of his sentence.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, following Xiao v R, a sentencing judge must apply a discount for the purely utilitarian value of a federal offender's guilty plea; failure to do so constitutes an error requiring resentencing.
  • Terrorist preparation offences under the Criminal Code 1995 (Cth) are assessed as objectively serious regardless of whether a specific act was planned or carried out, because the legislative scheme is designed to intervene at an early stage.
  • When sentencing for serious terrorist offences, punishment, general deterrence, and protection of the community are the dominant sentencing considerations, and an ideological motive does not automatically reduce the weight given to deterrence.
  • Youth and prospects of rehabilitation, while recognised as mitigating factors, attract significantly less weight in the context of serious terrorist offending than they would in other criminal matters.
  • In resentencing, the Court imposed a 10% discount for the utilitarian value of the late guilty plea, arriving at a sentence considerably shorter than that originally imposed, while still reflecting the gravity of the offending.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 11.5, 100.1, 101.6
- Crimes Act 1914 (Cth), ss 16A, 19AG, 20C
- Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 19, 33
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Judiciary Act 1903 (Cth), ss 68, 79
- Firearms Act 1996 (NSW)

Key Cases:
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Tyler v R [2007] NSWCCA 247
- Lodhi v The Queen [2007] NSWCCA 360
- Director of Public Prosecutions (Cth) v MHK (2017) 52 VR 272; [2017] VSCA 157
- Fattal v The Queen [2013] VSCA 276
- IE v The Queen [2008] NSWCCA 70
- KT v R [2008] NSWCCA 51
- R v Kahar [2016] 1 WLR 3156
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Kentwell v The Queen (2014) 252 CLR 60; [2014] HCA 37