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Supreme Court 5 June 2019

R v Khan (No 11)

[2019] NSWSC 594

Assault & violencePublic order & justice offences
CRIMINAL LAW OFFENCES SENTENCE WHERE THE OFFENDING WAS PLANNED OFFENDER MOTIVATED BY EXTREME IDEOLOGY OFFENCES

Citation: R v Khan (No 11) [2019] NSWSC 594
Court: Supreme Court of New South Wales
Date: 5 June 2019
Judge: Bellew J

Background

The offender was charged with engaging in a terrorist act contrary to s 101.1(1) of the Criminal Code 1995 (Cth), which carries a maximum penalty of life imprisonment. On 10 September 2016, at Minto in New South Wales, he stabbed Wayne Greenhalgh multiple times with a knife, intending to kill him. The attack was planned, and the victim was specifically targeted.

At trial, the offender pleaded not guilty on the grounds of mental illness, claiming that at the time of the stabbing he did not know his conduct was wrong because he was suffering from schizophrenia. He told his treating psychiatrists that an Islamic spirit (a "Jinn") had instructed him to stab the victim. Two defence psychiatrists accepted that account and diagnosed schizophrenia; the Crown's expert, Professor Greenberg, diagnosed Obsessive Compulsive Disorder and found no impairment of the offender's capacity to understand the wrongfulness of his actions.

The jury rejected the mental illness defence and returned a verdict of guilty on 2 May 2019. The matter proceeded to a sentencing hearing on 23 May 2019.

  • What principles govern sentencing for terrorism offences, and how should they apply to this offending?
  • Whether victim impact statements provided by bystanders who witnessed the attack and intervened to assist the victim could be received in evidence under s 16AAA of the Crimes Act 1914 (Cth), given that those persons were not the direct victim of the stabbing.
  • What weight, if any, should be given to the offender's mental illness (specifically OCD, as found implicitly by the jury) when mental illness was not causally connected to the offending, particularly on the question of general deterrence?
  • Whether the offender's sworn evidence of remorse and renunciation of extremist ideology should be accepted, given his earlier admitted dishonesty with treating doctors, and what effect that evidence had on prospects of rehabilitation.

Decision

Sentencing principles for terrorism offences. Bellew J applied the principles summarised in his own earlier decision in R v Khalid. The primary sentencing considerations for terrorism offences are community protection, punishment, denunciation, and both general and specific deterrence. Subjective circumstances and mitigating factors, including rehabilitation, attract less weight than in ordinary cases. The offender's ideological motivation was relevant to both objective seriousness and community protection. Because the offending was planned, the victim was specifically targeted, and the offender intended to kill, the objective seriousness was assessed as high.

Victim impact statements from bystanders. The offender's counsel argued that bystanders who witnessed the attack and intervened could not be "victims" under s 16AAA of the Act. Bellew J accepted the Crown's broader interpretation, finding that the definition of "harm" in s 16 of the Act (which encompasses psychological and emotional suffering) informed the meaning of "victim" in s 16AAA. Accordingly, the statements of Mr and Mrs Cutforth and the Ah Chong family members were properly received, those persons having suffered relevant psychological and emotional harm as a result of witnessing the offending.

Mental illness and general deterrence. Although the jury's verdict implicitly accepted that the offender suffered from OCD at the time of the offending, that condition was not causally connected to the terrorist act. Bellew J found that the absence of a causal link between the mental illness and the offending meant the illness did not reduce the weight to be given to general deterrence in sentencing.

Remorse and rehabilitation. The offender gave sworn evidence expressing remorse and renouncing his previously held extremist ideology. However, he also admitted to having deliberately misled his treating psychiatrists about that ideology. Bellew J found the offender's evidence of remorse and ideological renunciation difficult to accept in light of that admitted dishonesty. This significantly affected the assessment of the offender's prospects of rehabilitation, which were treated as limited.

Orders Made

  • The offender was convicted.
  • Sentenced to imprisonment for 36 years, commencing 10 September 2016 and expiring 9 September 2052.
  • A non-parole period of 27 years was specified, commencing 10 September 2016 and expiring 9 September 2043.
  • The offender becomes eligible for parole on 10 September 2043.
  • The offender was warned, pursuant to s 105A.23 of the Criminal Code 1995 (Cth), that an application may be made for a continuing detention order at the end of the sentence.

Key Takeaways

  • For terrorism offences, sentencing courts treat community protection, punishment, denunciation and deterrence as primary considerations, with subjective mitigating factors (including rehabilitation) accorded reduced weight compared to ordinary criminal sentencing.
  • Under s 16AAA of the Crimes Act 1914 (Cth), "victim" can extend beyond the person directly harmed by the physical act: bystanders who suffer psychological or emotional harm as a result of witnessing the offending may qualify, given that "harm" in s 16 of the Act encompasses psychological and emotional suffering.
  • Where an offender's mental illness has no causal connection to the terrorism offending, the existence of that illness does not diminish the weight attributable to general deterrence at sentencing.
  • An offender's sworn expression of remorse and renunciation of extremist ideology may be given little weight where the offender has admitted to deliberately deceiving treating clinicians about that ideology; such dishonesty directly undermines the credibility of claimed rehabilitation.
  • Consistent with the approach in R v Barot and domestic authorities, the Supreme Court affirmed that severe sentences are warranted for terrorist offending, in part because ideological motivation may render deterrence ineffective and such offences are inherently difficult to detect.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 101.1(1), 105A.23, Division 105A
- Crimes Act 1914 (Cth), Part IB, ss 16, 16A, 16AAA, 16F
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases
- R v Khalid and ors [2017] NSWSC 1365
- R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691
- Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360
- R v Elomar [2010] NSWSC 10; (2010) 264 ALR 759
- Benbrika v R (2010) 29 VR 593; [2010] VSCA 281
- DPP (Cth) v Fattal [2013] VSCA 276
- DPP v Besim [2017] VSCA 158
- DPP (Cth) v MHK (2017) 52 VR 272; [2017] VSCA 157
- R v Nahlous (2013) 228 A Crim R 503; [2013] NSWCCA 90
- R v Alou (No 4) [2018] NSWSC 221; (2018) 330 FLR 402
- R v Barot [2007] EWCA Crim 1119; [2007] Crim LR 741
- R v Kahar; R v Ziamani [2016] 1 WLR 3156; [2016] EWCA Crim 568
- R v Khazaal [2009] NSWSC 1015
- Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33
- R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194; (2010) 79 N