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Court of Criminal Appeal 16 April 2021

Ghazzawy v R (Cth)

[2021] NSWCCA 70

Public order & justice offences
CRIMINAL LAW SENTENCE APPEAL ERROR DISCLOSED AND NEED TO RESENTENCE OBJECTIVE GRAVITY HIGHER THAN MID RANGE LACK OF INSIGHT INTO OFFENDING

Citation: Ghazzawy v R (Cth) [2021] NSWCCA 70
Court: Court of Criminal Appeal (NSW)
Date: 16 April 2021
Judges: Hoeben CJ at CL (with Harrison J and Ierace J agreeing)

Background

The appellant pleaded guilty in October 2016 to intentionally making a document connected with the preparation for a terrorist act, knowing of that connection, contrary to s 101.5(1) of the Criminal Code (Cth). The maximum penalty for that offence is 15 years imprisonment. The offending occurred over two days in December 2014, when the appellant contributed handwriting to documents found at a co-offender's home that outlined methods for committing terrorist attacks, including against AFP buildings and Lithgow Gaol.

The appellant was part of a group known as the "Khalid group," several members of which pleaded guilty to more serious charges of conspiring to commit acts in preparation for a terrorist offence. Firearms, extremist material, and related documents were found during searches of co-offenders' residences. The appellant's fingerprints and handwriting appeared on three of the seized planning documents.

Bellew J sentenced the appellant to 8 years and 6 months imprisonment, with a non-parole period of 6 years and 4 months, applying a 15 per cent guilty plea discount. The appellant sought leave to appeal out of time on two grounds: first, that the sentencing judge failed to properly apply the utilitarian value of the guilty plea under s 16A(2)(g) of the Crimes Act 1914 (Cth); and second, that the sentence was incorrectly backdated to 15 December 2015 when the appellant had actually been in custody from 10 December 2015.

  • Whether the sentencing judge failed to have regard to the utilitarian value of the guilty plea in accordance with s 16A(2)(g) of the Crimes Act 1914 (Cth), resulting in an insufficient discount
  • Whether the sentence was incorrectly backdated, depriving the appellant of five days of pre-sentence custody
  • How the objective seriousness of the offence should be assessed on resentence
  • Whether the appellant's lack of insight into his offending was relevant to the resentencing exercise

Decision

The Court of Criminal Appeal granted leave to appeal out of time, with the Crown raising no objection. On the first ground, the Court accepted that Bellew J had erred by not adequately accounting for the utilitarian value of the early guilty plea. The utilitarian value, being the practical benefit to the justice system from an early plea, is a distinct consideration under s 16A(2)(g) and must be properly reflected in the sentence discount. The error was sufficient to warrant resentencing.

On the second ground, the Court agreed that the sentence should have commenced on 10 December 2015, the date the appellant was first taken into custody for this offence, not 15 December 2015 as originally ordered. This correction added five days to the credit given for pre-sentence custody.

In conducting an independent sentencing exercise, Hoeben CJ at CL assessed the objective gravity of the offending as higher than mid-range. The documents were not merely passive records but served as a rallying tool to encourage the group toward large-scale terrorist activity, with members contemplating martyrdom. The relatively small word count and lack of distribution did not significantly reduce the objective seriousness, given the purpose and context of the documents.

The Court also found that the appellant had not, to any significant extent, modified the views he had held at the time of the offending and remained a threat to the community. This conclusion was drawn from a 2020 psychological assessment. Accordingly, the considerations of community protection, punishment, denunciation, and general deterrence remained central to the resentencing exercise.

Orders Made

  • Leave granted to appeal against sentence out of time
  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence imposed by Bellew J on 8 May 2017 quashed
  • Appellant resentenced to imprisonment for 8 years, commencing 10 December 2015 and expiring 9 December 2023, with a non-parole period of 6 years expiring 9 December 2021

Key Takeaways

  • Under s 16A(2)(g) of the Crimes Act 1914 (Cth), the utilitarian value of a guilty plea is a distinct sentencing consideration, and a failure to address it properly constitutes a sentencing error warranting appellate intervention.
  • A sentence backdating error, even where it affects only a short period of pre-sentence custody, constitutes a ground of appeal capable of correction on resentence.
  • The Court of Criminal Appeal confirmed that objective seriousness for terrorism document offences is not reduced simply because the documents were short, not distributed, or written without technical sophistication; the purpose the documents served within the group is the critical consideration.
  • Where a psychological assessment indicates that an offender has not meaningfully modified their extremist views, community protection remains a weighty sentencing factor alongside punishment, denunciation, and general deterrence.
  • In dismissing the challenge to objective seriousness, the Court reiterated that assessment of objective gravity is a discretionary matter, and an independent exercise of that discretion closely aligned with the original sentencing judge's conclusions did not constitute error.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 101.5, 101.6
- Crimes Act 1914 (Cth), s 16A (including s 16A(2)(g))
- Criminal Appeal Act 1912 (NSW), s 5

Cases
- Bae v R [2020] NSWCCA 35
- Benbrika v R (2010) 29 VR 593; [2010] VSCA 281
- Elomar & Ors v R (2014) 300 FLR 323; [2014] NSWCCA 303
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Mulato v Regina [2006] NSWCCA 282
- R v Benbrika (2009) 222 FLR 433; [2009] VSC 21
- R v Elomar & Ors (2010) 264 ALR 759; [2010] NSWSC 10
- R v Ghazzawy [2017] NSWSC 474
- R v Kahar & Ors [2016] 1 WLR 3156; [2016] EWCA Crim 568
- R v Khazaal [2009] NSWSC 1015
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
- R v Robert Borkowski [2009] NSWCCA 102
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4