Citation: Zahab v R [2021] NSWCCA 7
Court: Court of Criminal Appeal
Date: 05 February 2021
Judge(s): Bathurst CJ; Garling J; Wright J
Background
The applicant pleaded guilty to two federal offences. The first, under s 102.7(1) of the Criminal Code (Cth), involved intentionally providing support to Islamic State between December 2014 and February 2017 through researching and developing a laser warning receiver and rocket guidance systems. The second, under s 3LA(5) of the Crimes Act 1914 (Cth), involved refusing to provide police with passwords to unlock encrypted devices.
The sentencing judge imposed 9 years imprisonment with a non-parole period of 6 years and 9 months for the first offence, and 3 months imprisonment for the second, applying a 25 per cent discount for both guilty pleas. The sentencing judge found the first offence was very serious, involving sophisticated and sustained scientific research with substantial and tangible assistance to Islamic State.
The applicant sought leave to appeal on the single ground that the sentencing judge failed to take into account the onerous nature of his custodial conditions at the High Risk Management Correctional Centre (HRMCC) at Goulburn.
Legal Issues
- Whether the sentencing judge erred by failing to take into account the onerous nature of the applicant's conditions of custody at the HRMCC as a mitigating factor on sentence
- What evidence is required to establish onerous conditions of custody as a mitigating factor
- What the correct comparator is when assessing whether conditions of custody are relevantly onerous
Decision
The sole ground: failure to take onerous custody conditions into account
The Court confirmed the established principle that onerous conditions of custody can operate as a mitigating factor in sentencing (at [47]). The Court also held that the correct comparison is between the applicant's conditions and those of the general prison population, not those of other terrorist offenders housed in similar facilities. As Bathurst CJ observed, comparing only within a class of offenders kept in similarly harsh conditions would render the comparison meaningless (at [48]).
However, the Court found that the applicant had led very little direct evidence about his custodial conditions at the sentencing hearing. His own evidence focused almost entirely on how his views about Islamic State had changed, and said very little about the conditions he was experiencing (at [50]). The prison chaplain's evidence touched on the applicant's isolation from other inmates only indirectly, in the context of his renunciation of extremist beliefs, and no direct evidence about HRMCC conditions was drawn from him despite his capacity to give such evidence (at [50], [58]). This was in contrast to the approach taken in cases such as R v Khalid and R v Alameddine (No 3), where detailed evidence from senior correctional staff about HRMCC conditions was placed before the sentencing court (at [41]).
The only substantive material came from the psychologist Mr Machlin's report, which described the applicant's experience of isolation but ultimately concluded that he was coping as well as could be expected (at [50]). The sentencing judge had regard to that report, and the Court found no reason to conclude the judge had failed to take the full report into account when arriving at the sentence. Consistent with the principle stated in R v Totten, the absence of express reference to conditions of custody does not necessarily mean they were not considered (at [52]).
Garling J added that the applicant was effectively seeking, on appeal, to elevate what had been a minor and peripheral matter at first instance into a central sentencing error. His Honour was unpersuaded that the sentencing judge had made any error at all (at [61]).
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
-
Onerous conditions of custody remain a recognised mitigating factor in sentencing, and the Court of Criminal Appeal confirmed the relevant comparison is between the applicant's custodial conditions and those of the general prison population, not those of similarly situated co-offenders in the same facility (at [47]-[48]).
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Where an applicant raises onerous custody conditions as a sentencing mitigant, evidence of those conditions must actually be led before the sentencing court. Cases such as R v Khalid and R v Alameddine (No 3) succeeded on this point in part because detailed evidence from correctional staff was placed before the sentencing judge. The absence of comparable evidence in this case was fatal to the ground of appeal (at [41], [50]).
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A sentencing judge's failure to expressly refer to conditions of custody does not, without more, establish that the judge failed to take them into account. The Court applied the principle from R v Totten that such an inference should not automatically be drawn (at [52]).
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No error is established where the sentencing judge considered the only available evidence on custody conditions, being a psychologist's report concluding the applicant was coping as well as could be expected, and did not treat that material as calling for separate or additional consideration (at [60]).
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In dismissing the appeal, the Court reinforced that rehabilitation is likely to play only a minor role in sentencing for terrorism offences, where punishment, denunciation, and deterrence are the primary considerations (at [23]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth)
- Criminal Code (Cth)
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