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Supreme Court 16 August 2019

R v Elmir (No. 3)

[2019] NSWSC 1040

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCE FOREIGN INCURSION OFFENCE OBTAINED MILITARY EQUIPMENT OFFENDING FELL SLIGHTLY BELOW THE MID RANGE OF OBJECTIVE SERIOUSNESS

Citation: R v Elmir (No. 3) [2019] NSWSC 1040
Court: Supreme Court of New South Wales
Date: 16 August 2019
Judge(s): Davies J

Background

The offender pleaded guilty on the first day of his trial to an offence under s 119.4(1) of the Criminal Code (Cth). Between approximately 23 April and 19 June 2016, he committed acts in Turkey in preparation for crossing into Syria to engage in hostile activities on behalf of Islamic State (IS).

The offender had originally travelled to Saudi Arabia with his family for a religious pilgrimage. He then left his family in Dubai and travelled independently to Istanbul, where he stayed in an IS safe house, sought assistance to cross the Turkish-Syrian border, made contact through encrypted messaging applications with IS-connected individuals, and obtained military equipment. He was eventually deported from Turkey back to Australia and arrested in December 2016.

While on remand awaiting trial, the offender was convicted of assaulting two corrective services officers and received custodial sentences of eight months and six months' imprisonment to be served concurrently. Those sentences gave rise to a sentencing issue about how pre-trial custody should be calculated for the present offence.

  • What was the objective seriousness of the foreign incursion preparation offence?
  • Whether the offender had genuinely renounced his extremist views and demonstrated remorse
  • How to assess prospects of rehabilitation and the risk of reoffending
  • What discount to apply for the guilty plea entered on the first day of trial
  • How to treat the pre-trial custody period in light of the concurrent sentences imposed for the corrective services assault offences, applying the principle of totality under s 16E of the Crimes Act 1914 (Cth) and ss 24 and 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

Objective seriousness: Davies J placed the offending slightly below the mid-range of objective seriousness. The offender had taken serious preparatory steps: staying in an IS safe house, acquiring military equipment, and using encrypted messaging platforms to seek border-crossing assistance. His contacts and connections in Turkey demonstrated at least a moderate degree of planning. The accumulation of military equipment indicated an intent to take an active part in hostilities rather than a merely peripheral role.

Remorse and rehabilitation: The offender did not give evidence at the sentencing hearing and, notably, refused to stand when addressed by the court. A letter expressing regret was tendered on his behalf, but Davies J declined to find genuine remorse without evidence from the offender that could be tested. The court found the available evidence did not suggest that he had changed his extreme views, and assessed his prospects of rehabilitation as only fair. The court noted that a substantial period in custody would be needed to allow for de-radicalisation, potentially with the assistance of moderate religious figures.

Criminal history and sentencing factors: The offender's criminal antecedents afforded him no leniency. Davies J gave weight to both general and specific deterrence, and took into account the harsh conditions under which the offender had been held at the High Risk Management Correctional Centre. A discount was applied for the guilty plea, despite it being entered only on the first day of trial.

Commencement date and totality: Although the offender entered custody on 22 December 2016, Davies J adjusted the sentence commencement date to 22 April 2017 to account for the sentences imposed for the assault offences, applying the principle of totality to avoid double-counting that custodial period.

Orders Made

  • The offender was sentenced to five years and five months' imprisonment for the offence against s 119.4(1) of the Criminal Code (Cth).
  • Sentence commences 22 April 2017 and expires 21 September 2022.
  • Non-parole period of four years and one month, expiring 21 May 2021.
  • The court issued a warning under s 105A.23 of the Criminal Code that an application for a continuing detention order may be made after the sentence expires.

Key Takeaways

  • Preparatory conduct for a foreign incursion offence need not involve actual entry into the conflict zone to attract a substantial sentence; staying in a safe house, acquiring military equipment, and using encrypted platforms to seek border-crossing assistance were each treated as serious steps.
  • Where an offender declines to give evidence at a sentencing hearing and refuses to stand before the court, a letter expressing regret is unlikely on its own to establish remorse to the court's satisfaction.
  • Under the principle of totality, a sentencing court may adjust the commencement date of a sentence to account for a separate custodial sentence served during the pre-trial remand period, rather than simply back-dating to the initial date of custody.
  • Both general and specific deterrence carry significant weight in sentencing for terrorism-related foreign incursion offences, particularly where the offender has not demonstrated a genuine change in extremist views.
  • A guilty plea entered on the first day of trial still attracts a discount, though the extent of that discount will be more limited than if the plea had been entered at an earlier stage.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth) ss 100.1, 105A.23, 119.1, 119.4
- Crimes Act 1914 (Cth) ss 3E, 16A, 16E, 17A, 19AG
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 24, 47
- Crimes Act 1900 (NSW) s 60A
- Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) s 6

Cases:
- R v EB [2018] NSWSC 201
- R v Alou (No. 4) [2018] NSWSC 221
- Elomar v R [2014] NSWCCA 303
- Regina (C'Wealth) v Elomar [2010] NSWSC 10
- R v Alqudsi [2016] NSWSC 1227
- R v Azari (No 12) [2019] NSWSC 314
- R v Taleb (No 5) [2019] NSWSC 720
- R v Hraichie (No. 3) [2019] NSWSC 973
- R v Khaja (No 5) [2018] NSWSC 238
- R v Ghazzawy [2017] NSWSC 474
- R v Succarieh; R v Succarieh [2017] QCA 85
- Director of Public Prosecutions (Cth) v Hassan El Sabsabi [2017] VSCA 160
- Faheem Khalid Lodhi v Regina [2007] NSWCCA 360
- Callaghan v R [2006] NSWCCA 58
- DPP (Cth) v El Karhani (1990) 51 A Crim R 123
- R v McHugh (1985) 1 NSWLR 588