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Court of Criminal Appeal 19 November 2021

Almaouie v R

[2021] NSWCCA 274

Firearms & weaponsPublic order & justice offences
SENTENCING TERRORIST OFFENCE XIAO ERROR APPLICANT RE SENTENCED

Citation: Almaouie v R [2021] NSWCCA 274
Court: NSW Court of Criminal Appeal
Date: 19 November 2021
Judges: Beech-Jones CJ at CL, R A Hulme J, Wilson J

Background

The appellant was sentenced in November 2017 for conspiracy to do acts in preparation for a terrorist act, contrary to ss 11.5 and 101.6(1) of the Criminal Code 1995 (Cth), together with four firearms offences. The conspiracy, which ran from November to December 2014, involved the appellant and co-offenders planning potential attacks on law enforcement and government targets in Australia. Documents seized at the time of arrest, including two written by the appellant, confirmed the group's intent and the advanced state of their planning. The appellant was 21 years old at the time of the offending.

At the original sentencing, the appellant received an 18-year-and-10-month term for the conspiracy offence, with a non-parole period of 14 years and 2 months, together with concurrent fixed terms for the firearms offences. The firearms found in the appellant's bedroom included a bolt-action rifle, a sawn-off shotgun, and associated ammunition, all connected to the conspiracy.

The application for leave to appeal was filed out of time. The delay was explained by reference to the subsequent decision in Xiao v R [2018] NSWCCA 4, which changed the approach to the utilitarian value of a guilty plea for federal offences. The Commonwealth Director of Public Prosecutions conceded that the original sentencing judge had erred in his treatment of the plea in light of Xiao.

  • Whether the original sentencing judge erred in his treatment of the appellant's guilty plea by failing to apply the approach subsequently established in Xiao v R
  • Whether the time for filing the application should be extended, given the delay arose from a subsequent change in the law
  • What sentence was appropriate on resentencing, taking into account the Xiao error, the appellant's age at the time of offending, and parity with the sentences imposed on co-offenders (including the co-offender Khalid, whose sentence had been reduced on appeal)

Decision

The Court accepted the CDPP's concession that the original sentence was affected by Xiao error. Under Xiao, the utilitarian value of a guilty plea to a federal offence must be assessed differently from the approach previously applied in New South Wales courts. Because the original sentencing judge applied the pre-Xiao methodology, the sentence could not stand.

The Court granted the extension of time to file the application. The explanation for the delay, being the emergence of the Xiao decision, was accepted as sufficient, and the strength of the application supported the grant of the extension.

On the question of parity, the Court noted that, if the appellant's sentence were not reduced, an unjustified disparity would exist between his sentence and the reduced sentence imposed on Khalid on appeal, notwithstanding Khalid's greater role in the offending. The Court also took into account the appellant's youth at the time and the need, in cases of serious and dangerous offending, to moderate the weight ordinarily given to that consideration.

The Court resentenced the appellant on the conspiracy offence to 16 years and 6 months imprisonment, with a non-parole period of 12 years and 6 months. The firearms sentences remained undisturbed. The total sentence commenced on 18 December 2014 and will expire on 9 June 2032, with the appellant first eligible for parole on 9 June 2028.

Orders Made

  • Time extended for filing the application for leave to appeal up to and including 7 May 2021
  • Leave to appeal granted; appeal allowed
  • Original sentence for the conspiracy offence set aside
  • Appellant resentenced on the conspiracy offence to 16 years and 6 months imprisonment, commencing 10 December 2015 and expiring 9 June 2032
  • Non-parole period of 12 years and 6 months specified, commencing 10 December 2015 and expiring 9 June 2028
  • Total sentence noted as commencing 18 December 2014 and expiring 9 June 2032, with first eligibility for parole on 9 June 2028
  • Appellant warned, pursuant to s 105C of the Criminal Code 1995 (Cth), that an application may be made for a continuing detention order after the completion of his sentence

Key Takeaways

  • The Court of Criminal Appeal confirmed that Xiao v R applies to federal terrorism offences, and that a failure to apply the Xiao approach to the utilitarian value of a guilty plea constitutes a sentencing error requiring resentencing.
  • An application for leave to appeal filed out of time may be granted where the delay is attributable to a subsequent change in the law and the underlying application is strong.
  • Parity principles operated in this matter: the reduction of a co-offender's sentence on appeal created an unjustified disparity that the Court was required to address when resentencing.
  • Where an offender was young at the time of serious terrorist offending, the mitigatory weight of youth may be moderated, consistent with established authority in Khalid v R and related decisions.
  • Under s 19AG(2) of the Crimes Act 1914 (Cth), a non-parole period for a terrorism offence must be at least three-quarters of the head sentence, a constraint that shaped the structure of the resentence.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 11.5, 101.5(1), 101.6(1), 105C
- Crimes Act 1914 (Cth), ss 19AG(2), 19ALB (inserted by Counter-Terrorism Legislation Amendment (2019 Measures No 1) Act 2019)
- Firearms Act 1996 (NSW), ss 7A(1), 36(1), 62(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 10(1)

Cases
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Khalid v R [2020] NSWCCA 73
- R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365
- Alou v R [2019] NSWCCA 231
- Elomar v R [2014] NSWCCA 303
- Faheem Khalid Lodhi v Regina [2007] NSWCCA 360; (2007) 179 A Crim R 470
- IM v R [2019] NSWCCA 107
- Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255