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Court of Criminal Appeal 23 December 2019

R v Lelikan

[2019] NSWCCA 316

Public order & justice offences
CRIME TERRORISM OFFENCES MEMBERSHIP OF A TERRORIST ORGANISATION RELEVANT FACTORS ON SENTENCE OBJECTIVE SERIOUSNESS TERRORISM

Citation: R v Lelikan [2019] NSWCCA 316
Court: NSW Court of Criminal Appeal
Date: 23 December 2019
Judge(s): Bathurst CJ at [1]; Bell P at [154]; Davies J at [157]

Background

The respondent, a Kurdish man born in Turkey, pleaded guilty to intentionally being a member of a proscribed terrorist organisation, the Partiya Karkerên Kurdistanê (PKK, also known as the Kurdistan Workers' Party), contrary to s 102.3(1) of the Criminal Code (Cth). The offending occurred between April 2011 and August 2013 in Iraq, Turkey, and elsewhere. During that period, the respondent travelled with the PKK's military arm, supported the organisation in his writings, wore its uniform and insignia, and carried arms.

The respondent had a significant personal history with the Kurdish cause. He and his family had been detained and tortured by Turkish authorities, and a brother had been killed fighting as a PKK guerrilla. He was granted refugee status in Australia in 1997 and later moved to Paris, where he faced terrorism-related charges before fleeing to Iraq. The sentencing judge described his involvement as that of a "passive, sympathetic observer" who sought to chronicle the PKK's struggle, and characterised it as "towards the lowest order of seriousness." He was sentenced to a Community Correction Order.

The Commonwealth Director of Public Prosecutions appealed against that sentence, arguing the sentencing judge had made errors in assessing both the objective seriousness of the offence and the respondent's moral culpability.

  • What factors are relevant when assessing the objective seriousness of an offence of membership of a proscribed terrorist organisation?
  • Is the ideological merit or political cause of a terrorist organisation a relevant sentencing consideration?
  • Did the sentencing judge err by taking into account matters such as the PKK's stated commitment to international humanitarian law, its contested classification as a terrorist organisation, and Australia's de facto alignment with the PKK during the Syrian conflict?
  • Did the sentencing judge err in her assessment of moral culpability?
  • Should the Court exercise its residual discretion to decline to interfere with the sentence, despite finding error?

Decision

On objective seriousness and relevant sentencing factors

The Court of Criminal Appeal held unanimously that the merits of a terrorist organisation's cause are not a relevant factor in sentencing. Assessing the ideological worth of an organisation's motivations would in effect require a court to second-guess the legislature's decision to proscribe that organisation as a terrorist entity. That is a matter exclusively for the executive and legislative branches. Courts exercising federal criminal jurisdiction are neither equipped nor suited to making such assessments, particularly where the organisation operates against a country with which Australia maintains diplomatic relations.

The Court confirmed that certain characteristics of the organisation are legitimately relevant: its history and objectives, the nature and scale of its past and potential future activities, whether it targets civilians indiscriminately, and its capacity and resources to carry out terrorist acts. However, the PKK's stated commitment to the Geneva Conventions and international humanitarian law, and the classification of the Turkey-Kurdistan conflict as a non-international armed conflict, were held to be irrelevant to sentencing.

On moral culpability

In assessing moral culpability, the Court held that the respondent's full knowledge of the PKK's objectives and methods was relevant and aggravating. His subjective belief in the rightness of the cause did not itself reduce his culpability. However, the fact that he joined the organisation as a consequence of cruel treatment at the hands of Turkish authorities was a genuine mitigating factor going to culpability.

On error and the residual discretion

The Court found that the sentencing judge had erred in taking into account the PKK's ideological merits, the contested nature of its listing as a terrorist organisation, its commitment to international humanitarian law, and Australia's de facto alliance with the PKK during the Syrian conflict. These errors affected her assessment that the offending was at the lowest order of seriousness. Nevertheless, the Court exercised its residual discretion not to interfere with the sentence. Several factors weighed in favour of exercising that discretion: the Crown's own conduct at trial had been inconsistent with its position on appeal (including accepting that the organisation's nature and quality was relevant, and conceding the PKK's humanitarian law commitments were relevant); the entire body of evidence, including expert reports, had been treated as relevant by all parties; and the respondent had remained at liberty since charging and had complied fully with the Community Correction Order without any suggestion that the sentencing judge's character assessment was wrong.

Orders Made

• The appeal should be dismissed

Key Takeaways

  • The merits or ideological cause of a proscribed terrorist organisation are not a relevant sentencing consideration. Whether an organisation's political goals are sympathetic or its methods comparatively restrained is a matter for the legislature when deciding whether to proscribe it, not for courts when sentencing for membership offences.

  • Relevant factors in assessing objective seriousness for membership of a terrorist organisation include the organisation's history and objectives, whether it deliberately targets civilians, and its capacity and organisation, but not its adherence to international humanitarian law or the legal classification of the conflict in which it operates.

  • Joining a terrorist organisation with full knowledge of its objectives and methods is a relevant aggravating consideration going to moral culpability, even where the offender sincerely believes in the justice of the cause.

  • A personal history of severe mistreatment by the very government that the organisation opposes can legitimately mitigate an offender's moral culpability for joining that organisation.

  • In dismissing the Director's appeal, the Court of Criminal Appeal exercised its residual discretion not to resentence, having regard to the Crown's own inconsistent conduct during the sentencing proceedings, the basis on which the case had been run at trial, and the respondent's subsequent compliance with the Community Correction Order.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 102.1, 102.3(1)
- Charter of the United Nations Act 1945 (Cth)
- Crimes Act 1914 (Cth)
- Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)
- Criminal Appeal Act 1912 (NSW)

Cases
- Alou v R (2019) 373 ALR 349; [2019] NSWCCA 231
- Benbrika v R (2010) 29 VR 593; [2010] VSCA 281
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9
- Director of Public Prosecutions (Cth) v El Sabsabi [2017] VSCA 160
- IM v R [2019] NSWCCA 107
- R v F [2007] QB 960; [2007] EWCA Crim 243
- R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489
- R v Kahar; R v Ziamini [2016] EWCA Crim 568; [2017] 2 All ER 782
- R v Sarwar [2015] EWCA Crim 1886; [2016] 1 Cr App R (S) 54
- R v Zahab [2019] NSWSC 629