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5
Supreme Court 14 June 2019

R v Taleb (No 5) (Sentence)

[2019] NSWSC 720

Public order & justice offences
CRIMINAL LAW SENTENCING COMMONWEALTH CRIMINAL CODE LIFE IMPRISONMENT YOUNG OFFENDER WITH SCHIZOPHRENIA RADICAL ISLAMISM

Citation: R v Taleb (No 5) (Sentence) [2019] NSWSC 720
Court: Supreme Court of New South Wales
Date: 14 June 2019
Judge: Hamill J

Background

The offender, a 24-year-old man with schizophrenia and minimal prior criminal history, was convicted by jury of engaging in conduct preparatory to committing a foreign incursion offence under the Criminal Code 1995 (Cth). The offending occurred in early 2017 when the offender was 22 years old. He had been raised in south-western Sydney, was the primary carer for his mother who suffered severely debilitating multiple sclerosis, and had become increasingly isolated and radicalised following a psychiatric crisis in 2014.

Police began investigating the offender in January 2017 after detecting his online activity, which disclosed an interest in radical Islamism and the Islamic State. An undercover police officer (UCO) became involved in the investigation, and telephone intercepts established that the offender had already developed radicalised views and an intention to travel to Syria before the UCO made contact with him. He was arrested on 15 June 2017 as he walked through the departures terminal at Sydney Airport, carrying a packed suitcase but no ticket and very little money. He intended to join the Islamic State's insurgency in Syria, believing the UCO's associates would organise his passage.

The jury rejected a defence of mental impairment at trial. At the time of sentencing, the offender had been in custody for exactly two years on remand. The offence carries a maximum penalty of life imprisonment.

  • What is the appropriate sentence for a young offender with schizophrenia convicted of a preparatory foreign incursion offence, where the maximum penalty is life imprisonment?
  • What weight should be given to the involvement of an undercover police officer in facilitating the offending, and whether this constitutes a mitigating "entrapment"-style factor?
  • How does the offender's psychiatric condition (schizophrenia) affect moral culpability and the weight to be given to general deterrence?
  • What sentencing options are available given the statutory framework, the offender's time on remand, and the need for long-term supervision and rehabilitation?
  • How should the court balance community protection, rehabilitation, and the nature and circumstances of the offending?

Decision

Hamill J described the combination of relevant circumstances as exceptional. The offender was radicalised before the UCO's involvement, but without the UCO's encouragement and assistance, there was no realistic prospect he would have boarded a flight to Syria. The court found this did not amount to entrapment in any legal sense, as the offender was not an unwary innocent, but it remained a relevant mitigating factor: the UCO's conduct encouraged and facilitated offending that the offender was otherwise incapable of completing independently.

The offender's schizophrenia played a significant role in the commission of the offence. Although the jury rejected the mental impairment defence, Hamill J found the psychiatric condition substantially reduced the offender's moral culpability. This reduction in culpability also diminished the weight to be given to general deterrence as a sentencing consideration, since deterrence has less purchase where an offender's judgment was materially impaired by mental illness.

The court noted additional mitigating factors: the offender's youth, his limited criminal history, the onerous and prolonged nature of his two years of pre-trial custody, and the impact of incarceration on his psychiatric condition. His mother's grave illness and his longstanding role as her carer also featured in the assessment of his personal circumstances. The court acknowledged the maximum penalty of life imprisonment and the serious legislative purpose underlying it, namely protecting the public from individuals who might return to Australia further radicalised after fighting overseas, but found that the circumstances of this case placed it at the far end of the sentencing range from that maximum.

A significant practical consideration was the operation of the sentencing statutes: a conventional custodial sentence with a non-parole period would, given time already served on remand, result in an extremely short period of post-release supervision. Hamill J found this outcome would be counterproductive given the offender's need for long-term monitoring, psychiatric treatment, and structured support. The court concluded that a non-custodial order under s 20(1)(a) of the Crimes Act 1914 (Cth), in the form of a recognisance to be of good behaviour, with detailed conditions attached, was the appropriate and just response in these exceptional circumstances.

Orders Made

The offender was convicted of doing conduct preparatory to the commission of a foreign incursion offence. Without passing a custodial sentence, the court made the following orders:

  • The offender was required to enter a recognisance under s 20(1)(a) of the Crimes Act 1914 (Cth), without sureties, to be of good behaviour for 5 years.
  • The offender must appear before the court if called upon in respect of any breach during the 5-year period.
  • Within 24 hours of release, the offender must report to the Bankstown Office of Community Corrections.
  • For a period of 2 years, the offender must comply with supervision conditions including:
  • Accepting supervision and guidance of Community Corrections officers and following all reasonable directions.
  • Not leaving New South Wales without prior approval of the Community Corrections officer.
  • Attending psychological and other counselling, including de-radicalisation counselling, as directed.
  • Attending medical, psychiatric, and psychological appointments as directed.
  • Accepting psychiatric and psychological treatment and taking all prescribed medication, including anti-psychotic medication.
  • Not accessing websites or applications associated with Islamic State, Al-Qaeda, or organisations supporting radical Islamism or terrorism.
  • Not using the Telegram messaging application.
  • Providing a list of all internet-capable electronic devices within 7 days of release, notifying the Community Corrections officer of any new devices within 24 hours of acquisition, and consenting to inspection of those devices and provision of passwords to facilitate compliance.

Key Takeaways

  • Where a co-offender's participation in a preparatory terrorist-related offence was encouraged and facilitated by an undercover police officer, and the offender had no realistic independent capacity to complete the offending, those circumstances can constitute a mitigating factor in sentencing, even where no legal entrapment defence is established.

  • A finding that mental illness substantially contributed to the commission of an offence can reduce an offender's moral culpability and diminish the weight appropriately given to general deterrence at sentencing, even where a jury has rejected a formal defence of mental impairment.

  • The maximum penalty of life imprisonment for preparatory foreign incursion offences reflects Parliament's serious legislative purpose in protecting the community, and sentencing courts must keep that maximum firmly in view even when the individual circumstances of the case call for a sentence far below that maximum.

  • Under s 20(1)(a) of the Crimes Act 1914 (Cth), a court may decline to pass a custodial sentence and instead impose a recognisance with detailed conditions; this option may be appropriate where a conventional sentence would, due to remand time already served, produce only a negligible period of post-release supervision inadequate to meet the offender's rehabilitative and supervisory needs.

  • Detailed supervision conditions attached to a recognisance, including requirements relating to psychiatric treatment, internet access, and de-radicalisation counselling, can be used to address community protection and rehabilitation goals that would otherwise be served by a custodial sentence with a non-parole period.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 7.3, 119.1, 119.4, Division 104, Part 5.5
- Crimes Act 1914 (Cth), ss 16A, 16BA, 16E, 17A, 19AG, 20
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)

Cases:
- Commissioner of Police, NSW v Taleb [2019] NSWSC 21; (No 2) [2019] NSWSC 87; (No 3) [2019] NSWSC 273
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
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