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Supreme Court 20 February 2020

R v Betka

[2020] NSWSC 77

Public order & justice offences
CRIMINAL LAW SENTENCE WHERE GOOD PROSPECTS OF REHABILITATION

Citation: R v Betka [2020] NSWSC 77
Court: Supreme Court of New South Wales
Date: 20 February 2020
Judge: Harrison J

Background

The offender, an Australian-born man of Algerian heritage, pleaded guilty to engaging in hostile activity in a foreign country, contrary to s 119.1(2) of the schedule to the Criminal Code Act 1995 (Cth). He was 23 years old when he travelled to Syria with his then-wife in March 2015, having been influenced by online videos promoting life under Islamic State and the broader conflict against the Assad regime.

The offender remained in Syria for approximately four months. A second charge, of entering Al-Raqqa province while reckless as to the fact that it had been declared a prohibited area under the Code, was listed on a schedule pursuant to s 16BA of the Crimes Act 1914 (Cth) and taken into account in sentencing.

The offender was arrested in December 2017, more than two years after his return to Australia in October 2015. He was already serving a sentence for an unrelated offence at the time of sentencing. The details of his activities in Syria were drawn substantially from his own affidavit evidence, given the absence of electronic records and the limited agreed facts about the Syrian period.

  • What weight should be given to the offender's own account of his activities in Syria, including his claim that he did not engage in combat?
  • Whether the offence, though classified as a terrorism offence under the Crimes Act, should be sentenced differently from offences under Part 5.3 of the Code (which covers planning or committing acts of terrorism in Australia)?
  • What was the objective seriousness of the conduct, including whether the offender was actually inspired by Islamic State propaganda?
  • Whether the offender posed a risk of committing acts of domestic violence upon return to the community?
  • Whether the offender held continuing radical religious views, and what his prospects of rehabilitation were?
  • How to structure the sentence having regard to totality, accumulation, and the fact the offender was serving a concurrent term for an unrelated offence?

Decision

Harrison J accepted that the offence under s 119.1(2), while classified as a terrorism offence, is not the same as an offence under Part 5.3 of the Code and should be sentenced accordingly. That distinction, recognised in R v Succarieh, DPP v El Sabsabi, and R v Biber, was relevant to the overall approach to the objective seriousness of the conduct.

The court found that the offender had been genuinely, if misguidedly, influenced by Islamic State recruiting propaganda, and that this influenced his decision to travel to Syria. However, the evidence did not establish that he actually engaged in combat. The court noted that much of what was known about the offender's activities in Syria came from his own affidavit, and his account was assessed in that context.

His Honour was satisfied that the offender no longer held radical religious views and had good prospects of rehabilitation. The court also found insufficient evidence to support a finding that the offender posed a risk of committing acts of domestic violence upon his return to the community. These mitigating factors, combined with his guilty plea, were reflected in the sentence imposed.

In arriving at the sentence, Harrison J carefully considered totality, accumulation, and concurrence, given that the offender was already serving a term for an unrelated matter. The court declined to backdate the sentence to the date of arrest, instead commencing it on 19 June 2018 to reflect the appropriate degree of accumulation.

Orders Made

  • The offender was sentenced to imprisonment for 3 years and 8 months, commencing 19 June 2018 and expiring 18 February 2022.
  • A non-parole period of 2 years and 9 months was set, expiring 18 March 2021, with earliest eligibility for parole on 19 March 2021.
  • The court noted the offender was separately subject to a sentence for an unrelated offence with a non-parole period expiring 18 December 2021.
  • The offender was warned pursuant to s 105.23 of the Criminal Code that an application for a continuing detention order may be made at the end of the sentence.

Key Takeaways

  • An offence of engaging in hostile activity in a foreign country under Part 5.5 of the Criminal Code carries a maximum of life imprisonment but is legally and sentencing-wise distinct from a terrorism offence under Part 5.3, which addresses planning or committing acts of terrorism in Australia.
  • Where the primary account of an offender's activities in a foreign conflict zone comes from the offender's own evidence, that evidence is both highly instructive and subject to careful scrutiny in the sentencing process.
  • Genuine, if misguided, influence by foreign terrorist organisation propaganda is a relevant sentencing consideration, as is evidence that the offender no longer holds the radical views that led to the offending.
  • Good prospects of rehabilitation, absence of evidence of a continuing risk of violence, and a guilty plea were each treated as mitigating factors capable of influencing the length and structure of the sentence.
  • In cases where the offender is already serving a sentence for an unrelated matter, the sentencing court must give careful and explicit consideration to totality, accumulation, and concurrence, and the starting date of the new sentence may be adjusted accordingly.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 119.1(2), 119.2(1), 119.3(1), 105.23, Division 105A
- Crimes Act 1914 (Cth), ss 16BA, 16F, s 3 (definition of terrorism offence)
- Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)

Cases:
- R v Succarieh [2017] QCA 85
- DPP v El Sabsabi [2017] VSCA 160
- R v Biber [2018] NSWCCA 271
- R v Lelikan [2019] NSWCCA 316
- R v Elshani [2015] NSWCCA 254
- R v Mohammed [2016] VSC 581
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Jane Maria Sakovits v R; Ronald Rudolf Sakovits v R [2014] NSWCCA 109
- Markovic v R; Pantelic v R [2010] VSCA 105
- R v Togias [2001] NSWCCA 522
- R v Filippetti (1978) 13 A Crim R 335
- R v Hinton [2002] NSWCCA 405
- R v Huston; Ex parte DPP (Cth) [2011] QCA 350
- R v Zerafa [2013] NSWCCA 222
- Nguyen v R [2001] WASCA 72
- R v Berlinsky [2005] SASC 316
- McAree v Barr [2006] TASSC 37