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Court of Criminal Appeal 5 February 2021

Zahab v R

[2021] NSWCCA 7

Public order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE ON EROUS CONDITIONS OF CUSTODY LIMITED EVIDENCE AS TO CONDITIONS

Citation: Zahab v R [2021] NSWCCA 7
Court: NSW Court of Criminal Appeal
Date: 5 February 2021
Judge(s): Bathurst CJ; Garling J; Wright J

Background

The appellant pleaded guilty to two federal offences. The first was providing support or resources to Islamic State between December 2014 and February 2017, contrary to s 102.7(1) of the Criminal Code (Cth). That support took the form of researching and developing a laser warning receiver and conducting rocket research, with the intention of assisting the organisation. The second offence was refusing to provide device passwords to police when ordered to do so under s 3LA of the Crimes Act 1914 (Cth).

The sentencing judge imposed a nine-year term of imprisonment for the terrorism support offence, with a non-parole period of six years and nine months. A concurrent three-month term was imposed for the password refusal offence. A 25 per cent discount was applied to both sentences to reflect the guilty pleas.

The appellant sought leave to appeal on one ground only: that the sentencing judge erred by failing to give adequate consideration to the onerous conditions of his custody at the High Risk Management Correctional Centre (HRMCC).

  • Whether the sentencing judge erred by failing to take into account, or adequately weigh, the onerous conditions of the appellant's custody at the HRMCC as a mitigating factor in sentencing.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, finding no error in the sentencing judge's approach.

The central obstacle for the appellant was the thinness of the evidentiary record about his custodial conditions. The only evidence touching on those conditions came from two witnesses: a Muslim prison chaplain, Mr Kilani, and a Mr Machlin. Their evidence addressed the appellant's renunciation of ISIS and his resulting isolation from other inmates, touching only indirectly and peripherally on actual conditions of custody at the HRMCC. No direct evidence about the HRMCC's conditions was led, despite the chaplain having worked across multiple NSW gaols for over four years and being well-placed to provide that kind of evidence.

Bathurst CJ observed that the sentencing judge had in fact referred to the relevant evidence of both witnesses. Given how limited that evidence was, the sentencing judge was entitled to give the question of custodial conditions very little, if any, weight. The Chief Justice rejected the proposition that the omission of any separate or extended analysis of the issue amounted to appellable error.

Garling J added that the appellant appeared to be attempting on appeal to elevate what was, on the evidence before the sentencing judge, a minor and peripheral matter into a central ground of significance. His Honour was unpersuaded that any error had been established at all. Wright J agreed with the orders and reasons of the Chief Justice.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Where an appellant raises onerous conditions of custody as a sentencing ground, the weight that ground can carry is directly constrained by the quality and depth of the evidence actually placed before the sentencing judge.
  • A sentencing judge is not required to give separate or extended analysis to a mitigating factor that was only peripherally addressed in the evidence and given no more than passing attention by counsel at the original hearing.
  • In dismissing the appeal, the Court of Criminal Appeal reinforced that an appellant cannot use the appeal process to reframe a minor, inadequately evidenced issue as a matter of central significance that the sentencing judge was bound to address at length.
  • Witnesses who are well-placed by occupation or experience to give evidence about custodial conditions but are not asked to do so cannot later be invoked to supply a gap in the evidentiary record on appeal.
  • Under the general sentencing principles applicable to terrorism offences, subjective circumstances and mitigating factors, including rehabilitation, carry reduced weight, with the primary considerations being community protection, punishment, denunciation and deterrence.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), s 102.7(1)
- Crimes Act 1914 (Cth), s 3LA(2) and s 3LA(5)

Cases
- Alameddine v R [2020] NSWCCA 232
- C v R [2013] NSWCCA 81; 229 A Crim R 233
- Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73
- Lodhi v R [2007] NSWCCA 360; 179 A Crim R 470
- R v Alameddine (No 3) [2018] NSWSC 681
- R v Atai (No 2) [2018] NSWSC 1797
- R v Atik [2007] VSC 299
- R v Durocher-Yvon (2003) 58 NSWLR 581; [2003] NSWCCA 299
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v HG [2018] NSWSC 1849
- R v Khalid [2017] NSWSC 1365
- R v Khan (No 11) [2019] NSWSC 594
- R v Scott [2003] NSWCCA 28
- R v Totten [2003] NSWCCA 207