AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Supreme Court 18 December 2020

R v Dakkak

[2020] NSWSC 1806

Public order & justice offences
CRIMINAL LAW SENTENCING GUILT BY ASSOCIATION FIRST OFFENCE CHARGED UNDER PROVISION OBJECTIVE SERIOUSNESS FACTORS RELEVANT TO ASSESSMENT

Citation: R v Dakkak [2020] NSWSC 1806
Court: Supreme Court of New South Wales
Date: 18 December 2020
Judge(s): Hamill J

Background

The offender pleaded guilty to two offences under s 102.8(1) of the Criminal Code Act 1995 (Cth), which criminalises intentional association with members of a terrorist organisation where that association provides support to the organisation. Both charges related to the offender's connections with individuals and entities linked to Islamic State (IS), a designated terrorist organisation.

The first offence involved the offender's association over approximately six months with a man who was a member of IS and who intended to travel to Syria or Iraq to fight with that organisation. The offender encouraged those plans, offered advice on travel routes and appearance to avoid detection, and claimed to be facilitating travel arrangements through contacts within IS. In one recorded conversation, the offender expressed the view that the killing of children in a terrorist attack was justified, indicating a significant degree of radicalisation.

The second offence was a "rolled-up" charge encompassing the offender's association with a Sheikh who was a member of IS and with an IS-linked publication organisation. The offender translated religious writings and shared them on social media on the Sheikh's behalf, enhancing his reach to a wider audience. The offender also translated and disseminated pro-IS ideological and propaganda material produced by the publication organisation, including summaries of IS activities in areas where his associate from the first charge intended to fight.

  • Whether the offences under s 102.8(1) of the Criminal Code were the first to be prosecuted under that provision, and what weight that novelty carried for sentencing purposes.
  • How to assess the objective seriousness of offending that involved no direct terrorist acts or preparation for violence, but instead the criminalised act of intentional association.
  • What sentencing options were available given the statutory constraints applying to terrorism offences under the Crimes Act 1914 (Cth), including the prohibition on intensive corrections orders, conditional release orders after a specified period, and the requirement that any non-parole period be at least 75% of the head sentence.
  • Whether imprisonment was the only appropriate sentence notwithstanding that the offender was a first offender with no prior convictions, had served approximately 18 months on remand in harsh conditions, and was entitled to imminent release.
  • What weight to give mitigating factors, including the early plea of guilty, remorse, youth, and rehabilitation, in the context of a terrorism offence.

Decision

Hamill J confirmed that s 102.8(1), while a terrorism offence, sits at the lower end of the spectrum of terrorism offences. Its maximum penalty of three years' imprisonment reflects its relative seriousness within the terrorism provisions of the Criminal Code, though the provision is unusual in imposing criminal liability on the basis of association rather than on any direct preparatory act or participation in violence.

The Court identified significant statutory constraints on the sentencing discretion. Because the offences were terrorism offences, intensive corrections orders and conditional release orders tied to a specified custodial period were unavailable. Any sentence of imprisonment was required to carry a non-parole period of at least 75% of the total term. The Court noted that imprisonment could not be imposed unless satisfied no other sentence was appropriate. Conditional release without the imposition of a sentence remained technically available under s 20(1)(a) of the Crimes Act, though the sentencing exercise required careful attention to the primacy of deterrence and community protection in terrorism matters.

In assessing objective seriousness, the Court acknowledged that the offending did not involve any direct terrorist act or preparation for one, but that the admitted conduct, including encouraging a would-be IS fighter, facilitating travel plans, and distributing IS propaganda, was nonetheless a meaningful contribution to a designated terrorist organisation. Mitigating factors such as rehabilitation and youth generally receive reduced weight in terrorism sentencing, consistent with established authority.

The Court took into account that the offender had already served approximately 18 months on remand in conditions described as harsh, and that he was entitled to imminent release. These circumstances bore directly on the framing of any sentence imposed, including the structure of the non-parole period relative to the time already served.

Orders Made

• Sentence of 9 months imprisonment
• Sentence of 15 months imprisonment commencing on 2 October 2019 and expiring on 1 January 2021
• Single non-parole period of 14 months commencing 2 July 2019 and expiring on 1 September 2020
• Release on 1 January 2021 unless parole is granted in the meantime

Key Takeaways

  • This was reported to be the first sentencing in Australia under s 102.8(1) of the Criminal Code Act 1995 (Cth), the provision criminalising intentional association with members of a terrorist organisation where the association provides support to the organisation.
  • Under s 102.8(1), an offender need not have participated in, planned, or prepared any terrorist act. The offence is complete where intentional association with a known member of a terrorist organisation is shown to have supported the organisation's continued existence or expansion.
  • Terrorism offences under the Criminal Code carry significant statutory sentencing constraints: intensive corrections orders and certain conditional release orders are prohibited, and any non-parole period for a custodial sentence must be no less than 75% of the head sentence, pursuant to s 19AG of the Crimes Act 1914 (Cth).
  • Deterrence and community protection take primacy in terrorism sentencing, and mitigating factors such as youth and rehabilitation carry reduced weight, consistent with the Court of Criminal Appeal's approach in cases such as Lodhi v R and Alou v R.
  • Despite its classification as a terrorism offence, s 102.8(1) carries a maximum of three years' imprisonment, placing it towards the lower end of all offences in Australian criminal law and significantly below other terrorism offences such as membership of a terrorist organisation (10 years) or committing a terrorist act (25 years).

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 102.1, 102.3, 102.4, 102.8
- Crimes Act 1914 (Cth), ss 3, 17A, 19AG, 20
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 67(1)(c) and Pt 4 Div 1A

Cases
- Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470
- Alou v R (2019) 101 NSWLR 319; [2019] NSWCCA 231
- Droudis v R [2020] NSWCCA 322
- R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R
- R v Taleb (No 5) (Sentence) [2019] NSWSC 720
- York v The Queen (2005) 225 CLR 466; [2005] HCA 60
- AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
- R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Georgopolous v R [2010] NSWCCA 246
- Sivell v R [2009] NSWCCA 286
- Saleh v The Queen [2016] HCATrans 175
- R v Perez-Vargas (1986) 8 NSWLR 559
- R v Rostom [1996] 2 VR 97; (1995) 83 A Crim R 58
- R v Laws [No 2] (2000) 116 A Crim R 70
- R v ZMN (2002) 4 VR 537; [2002] VSCA 140