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Court of Criminal Appeal 26 February 2021

Elmir v R

[2021] NSWCCA 19

Public order & justice offences
CRIME SENTENCING FEDERAL OFFENCES

Citation: Elmir v R [2021] NSWCCA 19
Court: NSW Court of Criminal Appeal
Date: 26 February 2021
Judges: McCallum JA; Garling J; Wright J

Background

The appellant travelled from Sydney to Turkey in 2016, intending to cross into Syria to join and fight for Islamic State. During two months in Turkey, he stayed at an Islamic State safe house, collected military equipment, and sought assistance from others to cross the border. He was ultimately detained by Turkish police and deported back to Australia.

Following his return, the appellant was charged with a preparatory foreign incursion offence under s 119.4(1) of the Commonwealth Criminal Code, which makes it an offence to engage in conduct preparatory to entering a foreign country with the intention of engaging in hostile activity. He pleaded guilty in the Supreme Court and was sentenced to five years and five months imprisonment with a non-parole period of four years and one month.

The appellant sought leave to appeal against that sentence on the single ground that the sentencing judge (Davies J) had erroneously applied principles developed for terrorism offences under Part 5.3 of the Criminal Code when sentencing him for a foreign incursion offence under Part 5.5.

  • Whether a sentencing judge errs by having regard to principles developed in terrorism cases when sentencing for a foreign incursion offence, given that the two categories of offence have different elements.
  • Whether the appellant's degree of radicalisation at the time of offending was legally irrelevant to the assessment of objective seriousness for a foreign incursion offence.
  • Whether the sentencing judge erred in treating protection of the community as a significant factor when sentencing for a foreign incursion offence, by analogy with terrorist offence cases.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's approach.

McCallum JA, with whom Garling J and Wright J agreed, held that the appellant's core argument was misconceived. The proposition that a discrete body of principles applies exclusively to terrorism offences, such that referencing those principles in a foreign incursion case constitutes legal error, misunderstands the sentencing task. Following the High Court's approach in Markarian v The Queen, the correct method is always to identify all relevant factors, assess their significance, and arrive at an appropriate sentence through a value judgment. There is no closed category of principles that belongs only to one type of offence.

On the question of radicalisation, the Court acknowledged that terrorism offences under Part 5.3 contain fault elements that are absent from the foreign incursion offence in s 117. Describing foreign incursion offences as "a species of terrorism" and importing a fixed set of associated principles would invite error. However, this did not mean that radicalisation was legally irrelevant to every foreign incursion case. The extent of an offender's radicalisation at the time of offending may, depending on the circumstances, be a relevant consideration in assessing objective seriousness, and the sentencing judge committed no error by taking it into account here.

On the community protection point, the Court found no error in the sentencing judge treating protection of the community as a significant factor in this particular case. The appellant's clear intention throughout was to fight for Islamic State, and he had, at one point, expressed willingness to kill the commander of the safe house from which he was evicted. In that factual context, the weight given to community protection was a matter within the sentencing judge's discretion and did not reveal any error of principle.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that no discrete body of principles applies exclusively to terrorism offences under Part 5.3 of the Criminal Code such that consulting those principles in a foreign incursion case would constitute legal error. The overarching sentencing obligation, following Markarian, is to identify all relevant factors and make a value judgment on the appropriate sentence.
  • Characterising foreign incursion offences as "a species of terrorism" attracting a fixed set of terrorism-specific principles is an approach the Court warned against, given the different elements of the two offences.
  • An offender's degree of radicalisation at the time of offending is not automatically irrelevant to the objective seriousness of a foreign incursion offence. Its relevance depends on the facts of the particular case.
  • In dismissing the appeal, the Court confirmed that the weight given to community protection as a sentencing consideration remains within the sentencing judge's discretion, informed by the specific facts before the court.
  • Leave to appeal was granted despite the appeal failing, because the issue raised was considered important and legally complex.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 100.1(1), 117, 119.1, 119.4
- Crimes Act 1914 (Cth), ss 3, 19AG
- Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A(2)
- Counterterrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth)
- Acts Interpretation Act 1901 (Cth), s 15AB

Cases:
- Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25
- R v Elmir (No 3) [2019] NSWSC 1040 (the sentence under appeal)
- R v EB [2018] NSWSC 201
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360
- R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691
- R v Alqudsi [2016] NSWSC 1227
- R v Succarieh (2017) 266 A Crim R 420; [2017] QCA 85
- Director of Public Prosecutions (Cth) v El Sabsabi [2017] VSCA 160
- R v Biber [2018] NSWCCA 271
- R v Betka [2020] NSWSC 77
- R v Taleb (No 5) (Sentence) [2019] NSWSC 720
- Yang v R (2012) 219 A Crim R 550; [2012] NSWCCA 49
- Marsh v R [2015] NSWCCA 154