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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
Date: 4 October 2019
Judge(s): Bathurst CJ at [1]; Price J at [198]; N Adams J at [201]

Background

The applicant, aged 18 at the time, supplied a loaded Smith and Wesson .38 revolver to a 15-year-old youth, Farhad Mohammad, who used it on 2 October 2015 to shoot and kill Curtis Cheng, a civilian finance employee of the NSW Police Force, as he left work on a street in Parramatta. The attack was immediately followed by Farhad Mohammad firing at NSW Police Headquarters while shouting "Allahu-akbar". It was not in dispute that the killing was a terrorist act. Farhad Mohammad was shot dead by police shortly after.

The applicant pleaded guilty to aiding and abetting a terrorist act contrary to sections 101.1 and 11.2(1) of the Criminal Code (Cth). At first instance, Johnson J sentenced him to 44 years imprisonment (after a 15% discount for his plea) with a non-parole period of 33 years, commencing from his arrest on 7 October 2015.

The applicant sought leave to appeal against sentence on nine grounds, challenging the assessment of his rehabilitation prospects, the weight given to deterrence and youth, the relevance of the continuing detention scheme, whether the sentence was manifestly excessive, and the construction and constitutional validity of section 19AG of the Crimes Act 1914 (Cth), which mandates a minimum non-parole period of three-quarters of the head sentence for terrorist offences.

Legal Issues

  • Whether the sentencing judge erred in finding the applicant's prospects of rehabilitation were poor or bleak
  • Whether the sentencing judge erred in giving primacy to general deterrence, specific deterrence, incapacitation and retribution over rehabilitation and youth
  • Whether the sentencing judge erred in requiring a strong element of general deterrence
  • Whether the sentencing judge erred in failing to give sufficient weight to the applicant's youth
  • Whether the sentencing judge erred by failing to take into account the existence of the continuing detention scheme for high-risk terrorist offenders
  • Whether the sentence of 44 years with a 33-year non-parole period was manifestly excessive
  • Whether the sentencing judge erred in the process of applying section 19AG of the Crimes Act 1914 (Cth) in fixing the non-parole period
  • Whether section 19AG created an incongruity between determinate sentences over 30 years and life sentences
  • Whether section 19AG was constitutionally invalid as incompatible with the exercise of judicial power by a State court exercising federal jurisdiction

Decision

Ground 1: Prospects of rehabilitation

The Court held that the sentencing judge was entitled to assess the applicant's rehabilitation prospects as poor on the evidence before him at the time of sentencing (at [102]-[108]). That evidence included the applicant's deeply entrenched and continuing radicalisation, his expressed satisfaction with the killing, his stated intention never to apologise, his change of allegiance from Islamic State to Al Qaeda, a threat made to prison officers, and his total disengagement from any deradicalisation programme (at [103]-[104]). The Court rejected the submission that the length of the sentence meant no assessment could properly be made, noting that the passage from Bugmy relied upon by the applicant concerned the assessment required at the expiry of a non-parole period, not the assessment of rehabilitation at the time of sentencing (at [106]).

Grounds 2, 3 and 4: Deterrence, primacy of sentencing purposes, and youth

The Court confirmed an established body of appellate authority, in both New South Wales and Victoria, that in sentencing for terrorist offences, protection of the community, punishment, deterrence and denunciation take primacy, with mitigating factors such as youth and rehabilitation receiving significantly less weight (at [131]-[137]). The Court rejected the submission that the applicant's radicalisation at age 17 established a causal link between his youth and the offence sufficient to reduce his moral culpability, noting the act was carefully planned over weeks and was not impulsive (at [138]-[139]). As to general deterrence, the Court held that the weight to be given to any sentencing factor is quintessentially a matter for the sentencing judge, and the suggestion that deterrence may carry less weight in ideologically motivated offending does not apply with the same force to an aider and abettor as it might to a suicide bomber (at [140]-[143]).

Ground 5: Continuing detention scheme

The Court held that, consistently with the binding statement in Muldrock v The Queen at [61], the existence of the continuing detention scheme for high-risk terrorist offenders was not a matter to be taken into account in imposing the sentence itself (at [149]-[150]).

Ground 6: Manifest excess

The majority (Bathurst CJ and Price J) held the sentence was severe but not manifestly excessive, given the very high objective gravity of the offence, the applicant's moral culpability approaching that of the 15-year-old principal, the absence of meaningful mitigation, and the maximum penalty of life imprisonment (at [157]-[160]; [200]). N Adams J dissented, finding the starting point of 52 years was too high. Her Honour analysed JIRS statistics to show the applicant's non-parole period of 33 years was the highest imposed for a single offence in New South Wales in the decade 2008 to 2018, exceeding all determinate murder sentences during that period, and that the Commonwealth DPP had not contended for a life sentence, implicitly conceding the offence did not represent the worst category of offending (at [203]-[224]). Because only N Adams J found this ground established, the majority result was that the ground failed and the appeal was dismissed.

Grounds 7 and 8: Construction of section 19AG

The Court rejected the submission that the sentencing judge should have first determined an appropriate non-parole period and then applied the statutory fetter. It confirmed that the head sentence is determined first, with the non-parole period then fixed having regard to the statutory minimum ratio, and that this approach was consistent with established authority (at [181]-[183]). The Court acknowledged the incongruity in section 19AG by which a court imposing a life sentence could fix a non-parole period as low as 22 years and 6 months, whereas a court imposing a determinate sentence exceeding 30 years must fix a minimum non-parole period of three-quarters of that sentence. However, the Court held that incongruity did not alter the clear meaning of the provision, and that imposing a life sentence merely to attract a lower minimum non-parole period would itself be a sentencing error (at [185]-[189]).

Ground 9: Constitutional validity of section 19AG

The Court held that section 19AG was not constitutionally invalid. The relevant test for federal legislation is whether the provision is inconsistent with the essential character of a court or the nature of judicial power (at [190]). Parliament's power to impose mandatory minimum sentences is well established, and a legislative fetter on the fixing of a non-parole period does not impair that essential character. The Court applied the reasoning of Keane J in Magaming v The Queen to reject the argument that section 19AG compelled the court to dispense injustice (at [191]-[195]).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In sentencing for terrorist offences in New South Wales, appellate authority consistently holds that protection of the community, punishment, denunciation and deterrence take primacy over mitigating factors such as youth and rehabilitation prospects, which receive significantly diminished weight (at [131]-[137]).

  • A sentencing court is required to assess rehabilitation prospects on the evidence available at the time of sentence, even where the sentence is very lengthy. The inability to predict an offender's state of mind decades into the future does not excuse the court from making that assessment (at [102]-[108]).

  • The suggestion, drawn from Lodhi, that general deterrence may carry less weight where ideological motivation renders deterrence unlikely, applies with considerably reduced force to an offender who aids and abets a terrorist act rather than being the direct perpetrator (at [140]-[143]).

  • Section 19AG of the Crimes Act 1914 (Cth), which mandates a minimum non-parole period of three-quarters of the head sentence for terrorist offences, is not constitutionally invalid. Parliament's established power to impose mandatory minimum sentences extends to fixing a statutory minimum non-parole period without infringing the institutional integrity of a State court exercising federal jurisdiction (at [190]-[195]).

  • N Adams J (in dissent on Ground 6) identified that a starting point of 52 years' imprisonment resulted in a non-parole period and head sentence exceeding any imposed for a single offence in New South Wales over the preceding decade, including all determinate murder sentences, and concluded this disclosed error in the exercise of sentencing discretion. The majority disagreed. Because only one judge found the ground established, the appeal was dismissed on this point (at [203]-[224]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes Act 1914 (Cth)
- Criminal Code (Cth)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Bahar v R (2011) 214 A Crim R 417; [2011] WASCA 249
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Bugmy v R (1990) 169 CLR 525 at 537; [1990] HCA 18
- Conte v R [2018] NSWCCA 209
- Director of Public Prosecutions (Cth) v Besim (No 3); Director of Public Prosecutions (Cth) v MHK (a Pseudonym) (No 3) (2017) 52 VR 303; [2017] VSCA 180
- Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208
- Director of Public Prosecutions (Cth) v MHK [No 1] (2017) 52 VR 272; [2017] VSCA 157
- Elomar v R [2014] NSWCCA 303
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Hughes v R [2018] NSWCCA 2
- IM v R [2019] NSWCCA 107
- Karim v R; Magaming v R (2013) 83 NSWLR 268; [2013] NSWCCA 23
- Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29
- KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 5
- Lim v Minister for Immigration, Local Government and Ethnic Affairs (1982) 176 CLR 1; [1992] HCA 64
- Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360
- Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Milat v R; Klein v R [2014] NSWCCA 29
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Palling v Corfield (1970) 123 CLR 52; [1970] HCA 53
- R v Droudis (No 16) [2017] NSWSC 20
- R v Elomar [2014] NSWCCA 303
- R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774
- R v Khan (No 11) [2019] NSWSC 594
- R v LN; R v AW (No 10) [2017] NSWSC 1387
- R v Martin (1999) 1 Cr App (S) 477
- R v Milat & Klein [2012] NSWSC 634
- R v Sakr (1987) 31 A Crim R 444
- R v Shoma [2019] VSC 367
- R v Stani-Reginald [2013] NSWSC 56
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Tran v R [2018] NSWCCA 220
- v Corrie Loveridge; R v AB [2013] NSWSC 1591
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Webster v R (2016) 258 A Crim R 301; [2016] VSCA 66