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Court of Criminal Appeal 23 November 2020

Atai v R

[2020] NSWCCA 302

Public order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS ACCUMULATION TOTALITY PRINCIPLE

Citation: Atai v R [2020] NSWCCA 302
Court: NSW Court of Criminal Appeal
Date: 23 November 2020
Judges: Bathurst CJ; Price J; N Adams J

Background

The applicant pleaded guilty to three terrorism-related offences in connection with events culminating in the murder of Curtis Cheng, a civilian NSW Police Force employee, on 2 October 2015. The applicant, aged 19 to 20 at the time, played a significant role in the offending. He helped a co-offender obtain a firearm used in the murder, provided funds for a co-offender's sister to travel to Syria to join Islamic State, and separately attempted to channel further funds to Islamic State (the latter intercepted by an undercover operation).

The applicant was sentenced to 38 years imprisonment with a non-parole period of 28 years and 6 months. The sentencing judge imposed a degree of accumulation across the three counts: three years between the two financing counts, and a further five years between those counts and the principal terrorism count. Following the first sentencing hearing, the applicant wrote letters to the Crown and the Australian Federal Police recanting any remorse he had expressed.

The applicant sought leave to appeal, contending primarily that the total sentence was manifestly excessive. He also argued the sentencing judge failed to give adequate weight to his youth and erred in the approach to accumulation and totality.

  • Whether the sentencing judge erred in his treatment of the applicant's youth as a mitigating factor in the context of terrorism offences
  • Whether the sentencing judge erred in his approach to accumulation and application of the totality principle
  • Whether the total sentence of 38 years was manifestly excessive

Decision

Youth as a mitigating factor: Bathurst CJ confirmed that while youth is generally a mitigating consideration, its weight must be moderated in terrorism cases where the offender has participated in the planning and execution of acts of extreme violence. The sentencing judge correctly applied the relevant principles, and no error was established on this ground.

Accumulation and totality: The Court acknowledged that judicial minds can differ on the appropriate approach to accumulation and totality, but found no error in the sentencing judge's methodology. The offences the subject of counts 2 and 3 were distinct, and imposing purely concurrent sentences would have failed to reflect their separate criminality. A three-year accumulation between those two counts, and a further five-year accumulation against the principal count, fell within the range properly available to the sentencing judge.

Manifest excess: Bathurst CJ held that participation in a terrorist act resulting in the murder of an innocent person falls within the high range of objective seriousness. The Court noted several aggravating factors: the applicant's guiding role in the offending, the additional offence of membership of a terrorist organisation taken into account under s 16BA of the Crimes Act 1914 (Cth), and the applicant's demonstrated lack of remorse and ongoing commitment to Islamic State ideology.

Crushing sentence and totality: The Court clarified that characterising a sentence as "crushing" does not, of itself, mean the sentence is unjust or inappropriate. Where the total criminality warrants it, a severe aggregate term may nonetheless be just and proportionate. Taking all objective and subjective factors into account, the total sentence of 38 years was not unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In terrorism sentencing, youth retains some mitigating weight but courts must moderate that weight where the offender has actively participated in planning and executing acts of extreme violence.
  • A sentence that could be described as "crushing" is not necessarily unjust or manifestly excessive; the characterisation is only one consideration within the broader totality analysis.
  • Participation in a terrorist act with the object of murdering an innocent person, where that object is achieved, falls within the high range of objective seriousness for sentencing purposes.
  • Where multiple terrorism offences are distinct in nature and timing, a degree of accumulation between sentences is appropriate and may be necessary to reflect the full criminality involved.
  • Post-sentence conduct recanting remorse and affirming commitment to a terrorist organisation is a relevant consideration supporting a conclusion that prospects of rehabilitation are guarded.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 101.1(1), 102.3(1), 102.6(1), 11.2(1)
- Crimes Act 1914 (Cth), ss 16A, 16BA, 19AG

Cases
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Alou v R (2019) 101 NSWLR 319; [2019] NSWCCA 231
- IM v R (2019) 100 NSWLR 110; [2019] NSWCCA 107
- Khalid v R [2020] NSWCCA 73
- R v Khalid [2017] NSWSC 1365
- Hughes v R [2018] NSWCCA 2
- Director of Public Prosecutions (Cth) v MHK (2017) 52 VR 272; [2017] VSCA 157
- GS v R [2016] NSWCCA 266
- Elomar v R [2014] NSWCCA 303; 316 ALR 206
- Lodhi v R [2007] NSWCCA 360; 179 A Crim R 470
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
- R v Kahar [2016] 1 WLR 3156; [2016] EWCA 568
- Abbas v R [2013] NSWCCA 115; 231 A Crim R 413
- R v Lamella [2014] NSWCCA 122
- Alameddine v R [2020] NSWCCA 232
- R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
- Howard v R [2019] NSWCCA 109