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Supreme Court 11 November 2020

R v WE (No.19)

[2020] NSWSC 1569

Public order & justice offences
CRIMINAL LAW OFFENCES SENTENCE OFFENCES SENTENCE SERIOUS OFFENDING

Citation: R v WE (No.19) [2020] NSWSC 1569
Court: Supreme Court of NSW
Date: 11 November 2020
Judge: Bellew J

Background

The offender, identified only as WE, was 16 years old at the time of the offending in October 2016. He was found guilty by a jury of jointly doing acts in preparation for, or planning, a terrorist act, contrary to ss 101.6 and 11.2A of the Criminal Code 1995 (Cth). The offence carries a maximum penalty of life imprisonment. The prosecution case established that the offender had been arrested in possession of knives and camouflage clothing, and had taken steps to conceal the knives. The terrorist act was found to have been imminent at the time of arrest, and the offending was motivated by adherence to an extremist ideology.

The sentencing proceedings were complicated by the offender's sustained refusal to cooperate. Partway through his trial he had dismissed his legal representatives and thereafter largely declined to participate. He submitted a large volume of handwritten material, most of which Bellew J found to be pejorative and of little assistance.

On the morning of the sentence hearing, the offender barricaded himself in his cell at the High Risk Management Correctional Centre in Goulburn, required physical removal, and upon being brought into the courtroom stated he considered the proceedings false and corrupt and wished to return to his cell. He was returned to custody and did not participate in the hearing.

  • Whether the sentence hearing could proceed in the offender's absence, given his conduct
  • Whether the offender's father could appear as amicus curiae in circumstances where the offender had indicated he did not want that
  • The weight to be given to the offender's youth (aged 16 at the time of offending) in sentencing for a serious terrorism preparatory offence
  • The extent to which a terrorist act was imminent at the time of arrest, and how that bore on objective seriousness
  • The relevance of denunciation, community protection, and general deterrence in sentencing for terrorism offences
  • How to approach the co-offender's sentence (HG, who was sentenced in 2018) in light of the parity principle

Decision

Absence from proceedings. Bellew J held that the offender's conduct amounted to an unequivocal waiver of his right to be present. While the principle that an accused must ordinarily be present for an indictable trial is fundamental, it can be waived. The offender had made his position plain on multiple occasions, and the court was satisfied that proceeding in his absence was appropriate, while acknowledging the discretion should be exercised sparingly.

Amicus curiae application. The offender's father sought to appear and tender a medical report diagnosing Autism Spectrum Disorder and Post Traumatic Stress Disorder. Bellew J refused, on two grounds. First, the offender had expressly indicated he did not want his father to represent him. Second, the father's proposed submissions sought to minimise the offender's involvement contrary to the jury's verdict, and would not have assisted the court. The decision to grant amicus standing rests in the court's discretion, and both the interests of the parties and the utility of the intervention must favour it.

Objective seriousness and ideology. The court found the offending to be at the serious end of the spectrum. The terrorist act was imminent at the time of arrest, the offending was ideologically motivated, and steps had been taken to conceal the weapons. These factors significantly elevated the objective gravity of the preparatory conduct.

The role of youth. The offender was 16 at the time of the offending, a factor that ordinarily carries considerable mitigatory weight. However, the court found that in cases of serious offending exhibiting adult-like behaviour, the mitigatory effect of youth is reduced. The need for denunciation, general deterrence, and community protection assumed particular prominence given the nature of the offending, and those considerations operated to limit the extent to which youth could moderate the sentence.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Supreme Court confirmed that an offender's right to be present at sentencing proceedings can be waived by conduct making non-participation unequivocal, though the discretion to proceed in absence must be exercised sparingly.
  • Leave to appear as amicus curiae is discretionary and requires both that the intervention would assist the court and that it is in the interests of the parties; neither requirement was met where the offender had actively opposed the application.
  • Where a terrorism preparatory offence involves imminent planned violence and is driven by extremist ideology, the objective seriousness is assessed as high regardless of whether the act was ultimately carried out.
  • Youth ordinarily attracts significant mitigation at sentencing, but the court held that its mitigatory weight is reduced in cases of serious offending demonstrating adult-like behaviour, particularly where denunciation, general deterrence, and community protection are pressing sentencing purposes.
  • The parity principle (treating co-offenders consistently) remained relevant, with the court required to have regard to the sentence imposed on the co-offender HG in 2018.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 101.6 and 11.2A
- Crimes Act 1914 (Cth)
- Children (Detention Centres) Act 1987 (NSW)
- Stronger Communities Legislation Amendment (Crimes) Act 2020 (NSW)

Cases
- Benbrika v R (2010) 29 VR 593; [2010] VSCA 281
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- DPP (Cth) v Besim [2017] VSCA 158
- DPP (Cth) v MHK (2017) 52 VR 272; [2017] VSCA 157
- Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- JM v R (2012) 223 A Crim R 55; [2012] NSWCCA 83
- KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
- Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Benbrika (2009) 222 FLR 433; [2009] VSC 21
- R v HG [2018] NSWSC 1849
- Levy v Victoria (1997) 189 CLR 579; [1997] HCA 31
- National Australia Bank Limited v Hokit Pty Limited (1996) 39 NSWLR 377