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Supreme Court 11 October 2021

R v Uweinat

[2021] NSWSC 1256

Public order & justice offences
CRIMINAL LAW OFFENCES SENTENCE MEMBERSHIP OF A TERRORIST ORGANISATION RELATED OFFENCES EVIDENCE OF CONTRITION

Citation: R v Uweinat [2021] NSWSC 1256
Court: Supreme Court of New South Wales
Date: 11 October 2021
Judge: Bellew J

Background

The offender pleaded guilty in the Local Court to two Commonwealth terrorism offences committed between June and December 2019: being a member of Islamic State (IS) knowing it was a terrorist organisation, and intentionally advocating the doing of a terrorist act or commission of a terrorism offence while reckless as to whether another person would act on that advocacy. The matter was committed to the Supreme Court for sentencing.

The offender was 21 years old at the time of the offending. His membership of IS was informal in nature, based on a pledge of allegiance, and he held no position of authority or leadership within the organisation. The offending occurred during a period of association with an antisocial peer group and coincided with demonstrable immaturity.

At the sentencing hearing, the offender gave unchallenged evidence of his renunciation of the extremist beliefs he had held during the offending period. He also demonstrated genuine contrition, and his pleas of guilty were entered at the earliest possible opportunity.

  • What general sentencing principles apply to terrorism-related offences, and do those principles apply even where the offending is less grave than the offences in which those principles were developed?
  • How should the objective seriousness of IS membership and terrorist advocacy be assessed, including by reference to IS's history, reach, and conduct?
  • What weight should be given to the offender's youth, immaturity, and alleged causal link between those factors and the offending?
  • How should mitigating factors, including genuine rehabilitation, contrition, and early guilty pleas, be weighed against the seriousness of terrorism-related offending?

Decision

Bellew J confirmed that the established principles for sentencing terrorism-related offences apply even where the particular offending is less serious than the cases in which those principles were first formulated. The predominant considerations remain protection of the community, punishment, denunciation, and both specific and general deterrence. His Honour noted that religious or ideological motivation is relevant to both objective gravity and community protection, and that even where deterrence may be less effective due to ideological commitment, general deterrence must still receive meaningful weight.

On objective seriousness, the court treated IS's status as one of the world's deadliest terrorist organisations as a significant aggravating factor. The fact that the offender was an admitted member of an organisation with a proven record of catastrophic international attacks was, of itself, a serious matter. The informal nature of his membership and his absence from any leadership role were accepted as mitigating factors within that analysis, but did not diminish the fundamental gravity of membership.

Regarding the offender's youth and immaturity, the court accepted there was some evidence of a causal link between immaturity and the offending, particularly given his association with an antisocial peer group. However, his Honour noted that where offending is serious, youth-related mitigation must be appropriately moderated. Subjective mitigating factors, however strong, cannot produce a sentence disproportionate to the seriousness of the conduct.

The court found the offender's prospects of rehabilitation to be cautiously favourable. His evidence of renunciation of extremist beliefs was unchallenged, his contrition was genuine, and his early guilty pleas were given full weight. These factors influenced the structure and length of the sentence, including the setting of the non-parole period, without displacing the primacy of the sentencing objectives particular to terrorism offending.

Orders Made

  • The offender was convicted of both offences.
  • For the advocacy offence (s 80.2C(1), Criminal Code 1995 (Cth)): 1 year and 8 months imprisonment, commencing 4 December 2019 and expiring 3 August 2021.
  • For the membership offence (s 102.3(1), Criminal Code 1995 (Cth)): 3 years and 8 months imprisonment, commencing 4 March 2020 and expiring 3 November 2023.
  • Total effective sentence: 3 years and 11 months imprisonment, commencing 4 December 2019 and expiring 3 November 2023.
  • Single non-parole period: 2 years and 11 months, commencing 4 December 2019 and expiring 3 November 2022.
  • The offender was warned pursuant to s 105A.23 of the Criminal Code that an application may be made under Division 105A for his continued detention after the sentence expires.

Key Takeaways

  • General sentencing principles developed for serious terrorism offences apply to less grave terrorism offending as well, including the primacy of community protection, denunciation, and general deterrence.
  • Membership of a prescribed terrorist organisation carries inherent objective gravity assessed by reference to the organisation's history, ideology, geographic reach, and methods, even where the individual member occupied no leadership role.
  • A causal link between an offender's youth or immaturity and terrorism-related offending can provide some mitigation of moral culpability, but that mitigation must be moderated where the offending is serious.
  • Unchallenged evidence of genuine renunciation of extremist beliefs and early guilty pleas are meaningful mitigating factors in terrorism sentencing, though subjective circumstances cannot override proportionality to the offending's seriousness.
  • Where the membership offence carries a maximum of 10 years imprisonment, the sentencing court is obliged to warn the offender of the potential for a continuing detention application under Division 105A of the Criminal Code upon sentence expiry.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 80.2C(1), 102.3(1), 105A.23, Division 105A
- Crimes Act 1914 (Cth), s 16A
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Alou v R (2019) 101 NSWLR 319; [2019] NSWCCA 231
- R v Alou (No.4) [2018] NSWSC 221; (2018) 330 FLR 402
- Benbrika v R (2010) 29 VR 593; [2010] VSCA 281
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- Director of Public Prosecutions (Cth) v Besim [2017] VSCA 158
- Director of Public Prosecutions (Cth) v Fattal [2013] VSCA 276
- Director of Public Prosecutions (Cth) v MHK (A Pseudonym) (No 1) (2017) 52 VR 272; [2017] VSCA 157
- FL v R [2020] NSWCCA 114
- HJ v R [2014] NSWCCA 21
- IM v R (2019) 100 NSWLR 110; [2019] NSWCCA 107
- Jinde Huang aka Liu v R [2018] NSWCCA 70; (2018) 272 A Crim R 266
- JM v R [2012] NSWCCA 83; (2012) 223 A Crim R 55
- Khazaal v R (No 2) [2013] NSWCCA 140; (2013) 223 A Crim R 106
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470
- McDowall v R [2019] NSWCCA 29
- R (C'Wealth) v Elomar and Ors [2010] NSWSC 10; (2010) 264 ALR 759
- R v Amati [2019] NSWCCA 193
- R v Barot [2007] EWCA Crim 1119
- R v Ghazzawy [2017] NSWSC 474