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11
Court of Criminal Appeal 4 October 2019

Alou v R

[2019] NSWCCA 231

Also reported as (2019) 101 NSWLR 319
Public order & justice offences
CRIME TERRORISM OFFENCES CRIME APPEALS APPEAL AGAINST SENTENCE APPEALS

Citation: Alou v R [2019] NSWCCA 231
Court: Court of Criminal Appeal, New South Wales
Date: 4 October 2019
Judge(s): Bathurst CJ; Price J; N Adams J

Background

The applicant, an 18-year-old, pleaded guilty to aiding, abetting, counselling or procuring the commission of a terrorist act under s 101.1(1) of the Criminal Code (Cth). The offence arose from the fatal shooting of Curtis Cheng, a civilian NSW Police employee, outside NSW Police Headquarters in Parramatta on 2 October 2015. The shooter was a 15-year-old associate of the applicant, Farhad Mohammad, who was himself killed by police at the scene.

The applicant played a central role in planning the attack. He spent more than a week attempting to obtain a firearm for the shooter, ultimately providing a loaded weapon knowing it would be used to shoot someone near the Police Headquarters. The sentencing judge found that both the applicant and the shooter were radicalised supporters of Islamic State, that there was no causal link between the applicant's youth and his offending, and that the applicant's prospects of rehabilitation were grim.

The applicant was sentenced to 44 years' imprisonment with a non-parole period of 33 years, after a 15% discount for his guilty plea. He sought leave to appeal on nine grounds.

  • Whether the sentencing judge erred in finding the applicant's prospects of rehabilitation were poor
  • Whether the sentencing judge erred in requiring a very strong element of general deterrence
  • Whether the sentencing judge erred in requiring a strong element of personal deterrence
  • Whether the sentencing judge erred in giving primacy to general deterrence and denunciation over the mitigating effect of youth
  • Whether the sentencing judge erred in declining to take into account the existence of a continuing detention scheme for high-risk terrorist offenders
  • Whether the sentence was manifestly excessive
  • Whether the sentencing judge erred in determining the non-parole period, including whether s 19AG of the Crimes Act 1914 (Cth) was constitutionally invalid

Decision

Rehabilitation prospects: The majority found no error in the sentencing judge's assessment that the applicant's rehabilitation prospects were poor. The sentencing judge was required to assess those prospects on the evidence before the court at the time of sentencing, and that evidence provided ample support for the finding.

Youth and deterrence: The majority held that the sentencing judge correctly gave primacy to general deterrence and denunciation over the mitigating effect of youth. Where there is no causal link between an offender's youth and the commission of the offence, the weight ordinarily given to youth as a mitigating factor is reduced. The court confirmed that this principle applies in terrorism sentencing, consistent with earlier authorities. The weight assigned to any particular sentencing factor remains quintessentially a matter for the sentencing judge, and no error was established in the emphasis placed on both general and personal deterrence.

Continuing detention scheme: The majority upheld the sentencing judge's refusal to take the continuing detention regime for high-risk terrorist offenders into account when imposing sentence. This approach was consistent with established principle.

Manifest excess: By majority (Bathurst CJ and Price J), the sentence of 44 years, while described as stern and severe, was not manifestly excessive. The offence was extremely serious, involving a premeditated terrorist killing designed to cause fear, death and disruption, and the sentence was not unreasonable or plainly unjust. N Adams J dissented on this ground, concluding that the starting point of 52 years (before the guilty plea discount) was too high. Her Honour noted that the resulting sentence exceeded every murder sentence short of a life sentence imposed in New South Wales in the ten years covered by available judicial statistics, and that this comparison had to carry some relevance, even accepting that offences carrying a maximum of life imprisonment are not directly comparable.

Section 19AG and the non-parole period: The grounds concerning the non-parole period and the constitutional validity of s 19AG of the Crimes Act 1914 (Cth) were dismissed. No error was established in either the determination or the fixing of the non-parole period, and the constitutional challenge to s 19AG failed.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In terrorism sentencing, where there is no causal link between an offender's youth and the commission of the offence, the ordinarily significant mitigating weight of youth is reduced, and primacy may properly be given to general deterrence, denunciation and incapacitation.

  • A sentencing court's assessment of rehabilitation prospects must be based on the evidence available at the time of sentencing; no error arises simply because that assessment is adverse to a young offender.

  • The existence of a continuing detention scheme for high-risk terrorist offenders is not a factor to be taken into account when imposing an original sentence.

  • In dismissing the manifest excess ground, the majority confirmed that a severe sentence for an extremely serious terrorist offence will not be disturbed on appeal merely because it is stern, provided it is not unreasonable or plainly unjust.

  • N Adams J's dissent on manifest excess illustrates that comparative sentencing data drawn from judicial statistics can be relevant when assessing whether a starting point is within range, even where the offences compared are not identical in character.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), s 101.1(1)
- Crimes Act 1914 (Cth), s 19AG
- Crimes Act 1900 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Bugmy v R (1990) 169 CLR 525; [1990] HCA 18
- Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360
- Elomar v R [2014] NSWCCA 303
- Director of Public Prosecutions (Cth) v MHK (No 1) (2017) 52 VR 272; [2017] VSCA 157
- Director of Public Prosecutions (Cth) v Besim (No 3) (2017) 52 VR 303; [2017] VSCA 180
- IM v R [2019] NSWCCA 107
- KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 5
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
- Hughes v R [2018] NSWCCA 2
- Conte v R [2018] NSWCCA 209
- Milat v R; Klein v R [2014] NSWCCA 29
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29
- Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208