AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 7 May 2019

R v Lelikan (No 5)

[2019] NSWSC 494

Public order & justice offences
CRIME SENTENCING CONSIDERATION OF THE NATURE OF THE PKK BUGMY CONSIDERATIONS WHETHER A SENTENCE OF FULL TIME CUSTODIAL IMPRISONMENT REQUIRED

Citation: R v Lelikan (No 5) [2019] NSWSC 494
Court: Supreme Court of New South Wales
Date: 7 May 2019
Judge: McCallum J

Background

The offender, an Australian citizen of Kurdish ethnicity, was convicted of membership of a terrorist organisation contrary to s 102.3(1) of the Criminal Code Act 1995 (Cth). The organisation in question was the PKK (Partiya Karkerên Kurdistanê) and its military arm, the HPG. The offender's connection to the PKK was not incidental: he had grown up in Turkey under the PKK's declared cause, lost a brother who died as a PKK guerrilla, and had himself been detained and tortured by Turkish authorities from a young age.

The offending period ran from approximately April 2011 to August 2013. During that time, the offender travelled with PKK and HPG guerrillas in the mountains of Iraq and Turkey, wore their uniform, carried weaponry and other accoutrements of those organisations, and conducted interviews and collected stories for his writing. A related charge of "foreign fighting" under the (now repealed) Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) was ultimately not proceeded with. The offender had also previously been convicted in France of participation in a criminal association for the purpose of terrorism preparation, though that conviction related to an earlier period and received limited weight in these proceedings.

The offender came to Australia in 1996, was recognised as a refugee by the Australian government in 1997, and was granted citizenship in 2003. He returned to Australia in October 2015 and cooperated with federal authorities. His background included a history of extreme personal suffering, including self-immolation in 1999 in which he sustained third-degree burns to 80 per cent of his body.

  • Whether full-time custodial imprisonment was required for an offence of membership of a terrorist organisation in these circumstances
  • How to characterise the nature and gravity of the offending, including the significance of the offender's role as a writer and chronicler rather than a combatant
  • The relevance and weight to be given to the offender's profound personal history, including his Kurdish background, refugee status, family losses, and the circumstances that drew him to the PKK
  • The application of the principles in Bugmy v The Queen (2013) 249 CLR 571 regarding the persistent mitigating effect of deprivation and trauma on moral culpability
  • The appropriate sentencing disposition under s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW), including whether a community correction order was available and appropriate

Decision

McCallum J accepted that the offending was established: the offender had spent over two years among PKK and HPG guerrillas, wearing their uniform and carrying their weapons. The court did not treat the label "membership of a terrorist organisation" as exhausting the analysis, however. Her Honour carefully considered the context in which the offending occurred, characterising the offender as a sympathetic chronicler of the Kurdish struggle rather than a person motivated by violence or intent to advance terrorism in the conventional sense.

The court undertook a detailed analysis of the nature of the PKK itself, noting expert evidence that the organisation's armed conflict arose from Turkey's historic suppression of Kurdish identity, described as "cultural genocide." Her Honour acknowledged that the PKK's designation as a terrorist organisation under Australian law was what engaged the offence, but that the context and the offender's specific conduct within the organisation were directly relevant to the assessment of moral culpability.

Applying Bugmy, the court gave significant weight to the offender's background of severe deprivation, state-inflicted torture from childhood, the loss of his brother to PKK conflict, and his own act of self-immolation in protest. These circumstances did not excuse the offending but substantially reduced the offender's moral culpability. Her Honour found the offending sat at the lower end of the range for this type of offence.

McCallum J concluded that a sentence of full-time custodial imprisonment was not required. Instead, the court exercised its power under s 8(1) of the Crimes (Sentencing Procedure) Act to impose a community correction order rather than imprisonment, having regard to all the circumstances of the offending and the offender.

Orders Made

  • The offender was convicted of membership of a terrorist organisation contrary to s 102.3(1) of the Criminal Code Act 1995 (Cth)
  • Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act, a community correction order was imposed for a period of 3 years from 7 May 2019, in lieu of a sentence of imprisonment
  • Conditions of the order included:
  • No commission of any offence during the order
  • Obligation to appear before a court if called upon during the term of the order
  • Acceptance of supervision by Community Corrections
  • Completion of 500 hours of community service work
  • Reporting to Community Corrections at St Leonards within seven days

Key Takeaways

  • The Supreme Court confirmed that the label attached to a terrorism offence does not determine its gravity in sentencing; the court must closely examine the offender's specific conduct, role, and motivations within the organisation.
  • A conviction for membership of a terrorist organisation under s 102.3(1) of the Criminal Code does not automatically require full-time custodial imprisonment; s 8(1) of the Crimes (Sentencing Procedure) Act remains available where the circumstances warrant it.
  • Applying Bugmy v The Queen, the court reaffirmed that profound childhood deprivation, state-inflicted trauma, and the cumulative weight of an offender's personal history retain genuine mitigating force in serious federal offences, reducing moral culpability even where the offending is not trivial.
  • The court's characterisation of the offender as a "sympathetic chronicler" of the Kurdish struggle, rather than a person intending to advance terrorism through violence, was central to its assessment of where the offending fell on the range of seriousness.
  • Expert evidence about the historical and political context of the PKK's conflict with Turkey was accepted and treated as relevant to sentencing, though it did not alter the fact that the PKK remained a designated terrorist organisation under Australian law during the offending period.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 100.1, 102.1, 102.3(1)
- Crimes Act 1914 (Cth), ss 16A, 17A(1), 20AB(1)
- Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (repealed), s 6(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8, 67, 88, 89
- Crimes Act 1900 (NSW), ss 154F, 253

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Benbrika v The Queen (2010) 29 VR 593; [2010] VSCA 281
- Lelikan v Director of Public Prosecutions (Cth) [2016] NSWSC 1467
- Lodhi v The Queen [2007] NSWCCA 360; 179 A Crim R 470
- R v Alou (No 4) [2018] NSWSC 221; 330 FLR 402
- R v Ghazzawy [2017] NSWSC 474
- R v Lelikan (No 3) [2019] NSWSC 90
- R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
- Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149