Citation: Azari v R; Al-Talebi v R [2021] NSWCCA 199
Court: NSW Court of Criminal Appeal
Date: 25 August 2021
Judge(s): Bathurst CJ; Adamson J (primary reasons); Bellew J
Background
The two applicants, Omarjan Azari and Ali Al-Talebi, were co-offenders convicted of terrorism-related offences arising from their involvement in a group that attempted to transfer funds to Islamic State in 2014. The group, known as the Shura, sought to send approximately AUD $6,000 to Pakistan to sponsor fighters travelling to Syria, and USD $9,000 to Turkey for a senior Islamic State member. Both applicants participated in collecting and handing over the funds to an intermediary who then attempted to transfer them.
Al-Talebi was sentenced in the District Court in August 2017 after a trial. He received an effective total term of 12 years' imprisonment with a non-parole period of 9 years. Azari was sentenced in the Supreme Court in March 2019 after pleading guilty. The two applicants were charged under different provisions of the Criminal Code Act 1995 (Cth), though each carried a maximum penalty of 25 years' imprisonment.
Each applicant sought leave to appeal against his sentence. Al-Talebi argued his sentence was manifestly excessive and that it was unjustifiably disparate compared to Azari's sentence. Azari raised three grounds: error in the treatment of offences on a schedule under s 16BA of the Crimes Act 1914 (Cth), manifest excess, and disparity with Al-Talebi's sentence.
Legal Issues
- Whether Al-Talebi's sentence was manifestly excessive having regard to his role in the offending and the amounts of money involved.
- Whether there was an unjustifiable disparity between the sentences imposed on the two co-offenders, giving rise to a justifiable grievance.
- Whether the sentencing judge in Azari's case erred in the treatment of offences on a schedule pursuant to s 16BA of the Crimes Act 1914 (Cth), including whether an error was made in a statement about the effect of those admitted offences on the sentence.
- Whether the different charges laid against each co-offender (under ss 102.6 and 102.7 of the Criminal Code) were material to the comparison between sentences.
Decision
The Court dismissed both applications on all grounds. On the manifest excess ground for Al-Talebi, Adamson J held that the primary judge's conclusions were supported on the facts. Although Al-Talebi's direct acts were limited (principally handing money to an intermediary), the offending involved a common criminal purpose to fund Islamic State activities, a serious objective, and conduct the judge found fell well short of the lowest range of criminality. Comparisons with other terrorism sentences did not establish that the sentence was outside the range available.
On the parity ground raised by both applicants, the Court accepted that the charges had been formulated differently but found this immaterial, because both offences carried the same maximum penalty and the conduct was related and substantially similar. Azari's admitted knowledge that the funds would support fighters on the ground was equivalent in gravity to the element the Crown would otherwise have had to prove against Al-Talebi. The Court found the roles of both men, though different in form, were of similar importance to the overall criminal purpose.
On Azari's s 16BA ground, the Court considered whether the sentencing judge had erred in a statement about the impact of the scheduled offences on the ultimate sentence. After careful analysis of that ground (the full reasoning of which is set out in Adamson J's judgment), the Court concluded no appellable error was established. The sentences, stripped of the discount for Azari's guilty plea and adjusted for the treatment of the s 16BA matters, fell within a similar range, and any difference was explicable by Azari's relative youth and the inclusion of additional offences on the schedule rather than as separate counts.
No applicant established a justifiable grievance arising from the sentence imposed on the other. The Court declined to intervene in either sentence.
Orders Made
- Proceedings 2014/274649 and 2014/368436 (Al-Talebi): Leave to appeal against sentence granted; appeal dismissed.
- Proceedings 2014/367702 (Azari): Leave to appeal against sentence granted; appeal dismissed.
Key Takeaways
- A parity ground can only be entertained once the applicant establishes that his or her own sentence is otherwise correct; the Court of Criminal Appeal confirmed this threshold must be satisfied before any comparison between co-offenders' sentences can be assessed.
- Different charges laid against co-offenders are not automatically material to a parity comparison where the charges carry identical maximum penalties and the underlying conduct is substantially similar.
- Where co-offenders share a common criminal purpose, the relative significance of each person's individual acts does not, of itself, determine their criminality; the court assesses the importance of each role to the overall aim.
- No justifiable grievance arises from a difference in sentences between co-offenders where that difference is explicable by identifiable factors, such as a guilty plea discount, relative youth, or how additional offences were brought before the court.
- Under s 19AG of the Crimes Act 1914 (Cth), terrorism offences attract a mandatory minimum ratio of 75% between the non-parole period and the total term of imprisonment.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), ss 3, 16A, 16BA, 19AG
- Criminal Code Act 1995 (Cth), ss 11.1, 11.2A, 101.6, 102.6, 102.7
- Crimes (Foreign Incursion and Recruitment) Act 1978 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW), s 184
Cases
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 (parity principles)
- Lowe v The Queen (1984) 154 CLR 606 (parity principles)
- Dinsdale v The Queen (2000) 202 CLR 321 (manifest excess)
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- Weininger v The Queen (2003) 212 CLR 629
- Abbas v R; Bodiotis v R; Taleb v R and Amoun v R [2013] NSWCCA 115
- R v Azari (No 12) [2019] NSWSC 314
- Martellotta v R [2021] NSWCCA 168
- Cahyadi v R [2007] NSWCCA 1
- R v MAK; R v MSK [2006] NSWCCA 381
- DS v R [2014] NSWCCA 267
- Dunn v R [2018] NSWCCA 108
- Sparos v R [2013] NSWCCA 223
- PG v R [2017] NSWCCA 179
- R v Knight [2005] NSWCCA 253
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1991 (No 1 of 2002) (2002) 56 NSWLR 146