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Court of Criminal Appeal 11 October 2019

Said v R

[2019] NSWCCA 239

Public order & justice offences
CRIMINAL LAW SENTENCE APPEAL NEED TO INDEPENDENTLY RE EXERCISE THE SENTENCING DISCRETION NEED FOR SUCH RE APPEAL ALLOWED AND APPLICANT RE

Citation: Said v R [2019] NSWCCA 239
Court: NSW Court of Criminal Appeal
Date: 11 October 2019
Judges: Hoeben CJ at CL at [1]; White JA at [86]; Hamill J at [94]

Background

The applicant pleaded guilty in the Supreme Court on 19 July 2017 to a single charge of making documents connected with preparation for a terrorist act, contrary to s 101.5(1) of the Criminal Code 1995 (Cth). The offence carries a maximum penalty of 15 years imprisonment. He was a member of a group ("the Khalid group") that had been planning domestic terrorist attacks in Australia in late 2014.

The documents at issue were two handwritten notes found in December 2014 at a co-conspirator's home. Both contained writing by the applicant discussing potential targets, including an AFP building and a Lithgow jail, and referenced concepts of martyrdom and mass-casualty attacks. The documents had been passed between multiple members of the group and added to over time.

At first instance, Bellew J sentenced the applicant to 9 years and 6 months imprisonment with a non-parole period of 7 years and 1 month. The applicant sought leave to appeal, arguing the sentencing judge failed to apply any discount for the utilitarian value of his guilty plea and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to account for the utilitarian value of the applicant's guilty plea
  • Whether the sentence of 9 years and 6 months was manifestly excessive having regard to the objective seriousness of the offence

Decision

The Court of Criminal Appeal found that the sentencing judge had indeed failed to apply any discount for the utilitarian value of the guilty plea. This constituted a clear error of principle. The court confirmed that a failure to give weight to this consideration required it to independently re-exercise the sentencing discretion rather than simply adjusting the existing sentence.

On the question of objective seriousness, the majority found the offending fell well below the most serious conduct captured by s 101.5. Relevant factors included the limited distribution of the documents, their lack of sophistication, and the fact that the applicant was not sentenced for more serious terrorism offences such as conspiring to commit a terrorist act (which carries life imprisonment) or directing a terrorist organisation (which carries 25 years). The appearance of the documents themselves suggested they were far from polished or highly planned instruments.

In re-sentencing, the Court adopted a starting point of 8 years, representing more than half the maximum penalty for a first offender who was 22 years old at the time of the offence. A discount of slightly more than 15% was applied for the utilitarian value of the guilty plea, producing a total sentence of 6 years and 8 months. The court remained conscious of the significant weight given to general deterrence, community protection, and denunciation in terrorism-related sentencing.

The non-parole period was set at 5 years, reflecting the mandatory minimum of 75% of the total sentence under s 19AG of the Crimes Act 1914 (Cth).

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Bellew J on 3 November 2017 quashed
  • Applicant re-sentenced to imprisonment for 6 years and 8 months, commencing 26 May 2016 and expiring 25 January 2023, with a non-parole period of 5 years expiring 25 May 2021

Key Takeaways

  • A sentencing court's failure to apply any discount for the utilitarian value of a guilty plea constitutes an error of principle requiring the appellate court to independently re-exercise the sentencing discretion.
  • Under s 101.5(1) of the Criminal Code 1995 (Cth), objective seriousness is assessed relative to the full range of conduct the provision captures; the limited distribution and unsophisticated nature of documents are relevant mitigating factors.
  • Where a terrorism offence falls short of the most serious conduct in the relevant statutory framework, the court must take care not to inflate the objective gravity of the offending by reference to surrounding circumstances relating to more serious charges that were never prosecuted.
  • General deterrence, protection of the community, and denunciation remain prominent sentencing considerations for terrorism-related offences, even where objective seriousness is assessed as relatively lower within the relevant range.
  • The mandatory non-parole period of 75% under s 19AG of the Crimes Act 1914 (Cth) applies to Commonwealth terrorism offences, limiting the court's discretion in structuring the custodial term.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), s 101.5(1)
- Crimes Act 1914 (Cth), Pt 1C; ss 16A(2), 19AG

Cases
- Huang v R [2018] NSWCCA 57
- IM v R [2019] NSWCCA 107
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
- Faheem Khalid Lodhi v Regina [2007] NSWCCA 360; 179 A Crim R 470
- R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365
- Xiao v R [2018] NSWCCA 4; 96 NSWLR 1