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7
Court of Criminal Appeal 17 April 2020

Khalid v R

[2020] NSWCCA 73

Also reported as (2020) 102 NSWLR 160
Public order & justice offences
CRIME TERRORISM OFFENCES APPEALS APPEAL AGAINST SENTENCE RESENTENCE SENTENCING RELEVANT FACTORS ON SENTENCE

Citation: Khalid v R [2020] NSWCCA 73
Court: Court of Criminal Appeal, NSW
Date: 17 April 2020
Judge(s): Bathurst CJ at [1]; Bell P at [99]; Harrison J at [100]

Background

The applicant, a 20-year-old man described in the statement of facts as the leader of a small group of co-conspirators, pleaded guilty to conspiring to do acts in preparation for a terrorist act or acts, contrary to ss 11.5 and 101.6(1) of the Criminal Code (Cth). The conspiracy ran from approximately 7 November to 18 December 2014 in Sydney. The maximum penalty for the offence is life imprisonment.

The planned terrorist act was to involve firearms and was motivated by an adherence to violent Jihad inspired by ISIS and similar groups. The intended targets remained unresolved but included members of the NSW Police Force or the Australian Federal Police, and government buildings. The conspiracy involved sourcing firearms and ammunition, coded communications, and meetings at the applicant's premises to review preparatory documents.

The applicant was originally sentenced on 3 November 2017 to 22 years and 6 months imprisonment with a non-parole period of 16 years and 9 months. He sought leave to appeal on two grounds: that the sentencing judge failed to apply a discount for the utilitarian value of his guilty plea, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to give the applicant a discount for the utilitarian value of his guilty plea.
  • Whether the original sentence of 22 years and 6 months was manifestly excessive having regard to the objective seriousness of the offence.
  • What weight, on resentencing, should be given to mitigating factors such as youth and prospects of rehabilitation in the context of serious terrorism offences.

Decision

The Crown conceded the first ground of appeal. The sentencing judge had not applied any discount for the utilitarian value of the guilty plea, which was an error. Because resentencing was required to correct that error, the Court found it unnecessary to consider Ground 2 concerning manifest excess.

On resentencing, the Court applied a 10% discount for the utilitarian value of the plea. Bathurst CJ (with Bell P and Harrison J agreeing) imposed a new sentence of 20 years imprisonment with a non-parole period of 15 years.

In setting the resentence, the Court reaffirmed that in the most serious terrorism offences, the dominant sentencing purposes are punishment, deterrence, and incapacitation. Rehabilitation plays a minor role, if any. Mitigating factors such as prospects of rehabilitation and other subjective considerations receive substantially less weight in terrorism cases than in other offending, given the nature of these offences and the legislative purpose of intercepting and interrupting planned acts of terror.

The Court also confirmed that the offence of doing acts in preparation for a terrorist act is anticipatory in nature, enabling law enforcement intervention at an early stage. The fact that preparatory acts may still be in their infancy does not necessarily reduce the objective seriousness of the offence. The main focus remains on the offender's conduct and intention at the time. On youth specifically, the Court held that the usual moderating effect of a youthful offender's age must itself be moderated where the offender was involved in serious and dangerous offending of this kind.

Orders Made

  • Leave to appeal granted.
  • Appeal on Ground 1 upheld; Ground 2 not determined.
  • Original sentence quashed.
  • Applicant resentenced to imprisonment for 20 years, with a non-parole period of 15 years.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a failure to apply any discount for the utilitarian value of a guilty plea is a sentencing error that will require resentencing, even in terrorism matters.
  • In the most serious terrorism offences, the sentencing objectives of punishment, deterrence, and incapacitation dominate; rehabilitation plays a minor role, if any.
  • The anticipatory nature of preparation offences means that the early stage of planning at the time of arrest does not automatically reduce the objective seriousness of the conduct charged.
  • Where a young offender is involved in serious and dangerous terrorism offending, the mitigating weight ordinarily attached to youth must be appropriately moderated.
  • Harrison J added, by way of additional observation, that custodial conditions that are gratuitously punitive or that treat terrorism offenders as a uniform category without individual assessment risk entrenching, rather than reducing, dangerous ideologies, and that this tension is relevant to how rehabilitation functions as a sentencing consideration.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 11.5 and 101.6(1)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Faheem Khalid Lodhi v Regina [2007] NSWCCA 360; (2007) 179 A Crim R 470
- Elomar v R [2014] NSWCCA 303
- Alou v R [2019] NSWCCA 231
- IM v R [2019] NSWCCA 107
- Director of Public Prosecutions (Cth) v MHK (No 1) (2017) 52 VR 272; [2017] VSCA 157
- R v Pham (2015) 256 CLR 550; [2015] HCA 39
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Bae v R [2020] NSWCCA 35
- Singh v R [2018] NSWCCA 60
- R v Elomar and Ors [2010] NSWSC 10
- R v Khaja (No 5) [2018] NSWSC 238
- R v Benbrika and Ors [2009] VSC 21
- R v Fattal and Ors [2011] VSC 681
- Johnson v The Queen [2004] HCA 15