Citation: Al Maouie v R [2022] NSWCCA 30
Court: NSW Court of Criminal Appeal
Date: 7 March 2022
Judges: Payne JA, Rothman J, Harrison J
Background
The appellant pleaded guilty in July 2017 to making a document connected with preparation for a terrorist act, contrary to s 101.5(1) of the Criminal Code Act 1995 (Cth). The offence arose from events on 17 to 18 December 2014 in Sydney, when the appellant contributed handwritten content to a document outlining a plan for "gorilla warfare" and an attack on police officers, found at a co-offender's premises. The maximum penalty for that offence is 15 years imprisonment.
The appellant was sentenced in November 2017 by Bellew J to 9 years imprisonment with a non-parole period of 6 years and 9 months. Because the offence is a terrorism offence under the Crimes Act 1914 (Cth), s 19AG required the non-parole period to be at least three-quarters of the head sentence, and the original sentence conformed exactly with that requirement.
The appellant sought leave to appeal out of time, arguing that the sentencing judge failed to apply a discount for the utilitarian value of his guilty plea as required by s 16A(2)(g) of the Crimes Act 1914 (Cth). The Crown conceded the error, making it necessary for the Court of Criminal Appeal to re-exercise the sentencing discretion afresh.
Legal Issues
- Whether the sentencing judge erred by failing to give separate consideration to the utilitarian value of the guilty plea under s 16A(2)(g) of the Crimes Act 1914 (Cth)
- Whether the Court of Criminal Appeal should endorse the sentencing judge's assessment of the objective seriousness of the offending when re-sentencing
- Whether leave to appeal out of time should be granted
- What the appropriate re-sentence should be, having regard to all relevant factors including the conceded error
Decision
The Crown conceded that the sentencing judge had not properly taken into account the utilitarian value of the guilty plea, and the Court accepted that error was established. Once error is demonstrated, the Court is required to independently re-exercise the sentencing discretion afresh, in accordance with the High Court's approach in Kentwell v The Queen (2014) 252 CLR 601.
On objective seriousness, Harrison J accepted the sentencing judge's characterisation of the offending as serious. The document was not dismissed as mere words: it reflected active and real consideration of a method and target for a terrorist attack. The appellant had contributed 25 words to the document, but the assessment turned on content, not volume. The document was also disseminated to others who added to it, and the appellant was aware it would be shared.
The appellant separately challenged the sentencing judge's finding that he adhered to a violent jihadist ideology at the time of the offending. The Court noted this finding had not been challenged on appeal and so it was not disturbed. The Court also considered the appellant's personal circumstances, prospects of rehabilitation, and custodial record when re-sentencing.
Leave to appeal out of time was granted, the Crown not opposing the extension given the explanation provided in supporting affidavit material. A reduced sentence was imposed reflecting the utilitarian value of the plea that had been omitted from the original sentencing exercise.
Orders Made
- Time extended for the filing of the notice of appeal to 17 September 2021
- Leave to appeal against sentence granted
- Appeal against sentence allowed
- Original sentence quashed and replaced with a sentence of 8 years imprisonment, comprising a non-parole period of 6 years commencing 23 December 2015 and expiring 22 December 2021, with a balance of term of 2 years expiring 22 December 2023
- Appellant warned, pursuant to s 105A.23 of the Criminal Code, that an application for a continuing detention order may be made after completion of sentence
Key Takeaways
- The Court of Criminal Appeal confirmed that a failure to give proper consideration to the utilitarian value of a guilty plea under s 16A(2)(g) of the Crimes Act 1914 (Cth) constitutes a sentencing error, requiring the appellate court to re-exercise the sentencing discretion independently and afresh.
- Once a sentencing error is conceded or established, the approach in Kentwell v The Queen applies: the appellate court does not merely adjust the original sentence but conducts a fresh sentencing exercise.
- A document connected with preparation for a terrorist act may be assessed as objectively serious even where the offender's contribution is brief; the content and context of the document, including its circulation among co-offenders, informs that assessment.
- Under s 19AG of the Crimes Act 1914 (Cth), a non-parole period for a terrorism offence must be at least three-quarters of the head sentence, and under s 19ALB, release on parole is only available in "exceptional circumstances."
- Rothman J, in a separate note, expressed the view that words in a multi-authored document should generally be read in the context of the document as a whole, unless the author was unaware of the broader contents, though this distinction did not affect the outcome on sentence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), ss 3, 16A(2)(g), 19AG, 19ALB
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 10(1)(b)
- Criminal Code Act 1995 (Cth), ss 11.5, 101.5(1), 101.6(1), 105A.23, 105C
Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Xiao v R [2018] NSWCCA 4
- Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73
- Ghazzawy v R (Cth) [2021] NSWCCA 70
- Quinlan v R [2021] NSWCCA 21
- Bae v R [2020] NSWCCA 35
- Said v R [2019] NSWCCA 239
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
- R v Durocher-Yvon (2003) 58 NSWLR 581; [2003] NSWCCA 299
- R v Farhad Qaumi [2017] NSWSC 774