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District Court 11 April 2022

R (Cth) v Dakkak

[2022] NSWDC 181

Public order & justice offences
CRIME SENTENCE INTERIM CONTROL ORDER TERRORISM OFFENCE.

Citation: R (Cth) v Dakkak [2022] NSWDC 181
Court: District Court of New South Wales
Date: 11 April 2022
Judge: Neilson DCJ

Background

The offender had previously been convicted in the Supreme Court of two counts of associating with a terrorist organisation under the Criminal Code Act 1995 (Cth), for which he was sentenced to 18 months' imprisonment. He was released at the expiration of that head sentence on 1 January 2021, having not been permitted by the Commonwealth Attorney-General to be released on parole earlier.

On the day of his release, the offender was served with an Interim Control Order (ICO) made by a Federal Court judge on 31 December 2020. The ICO imposed a range of conditions on the offender's activities, including a prohibition on accessing electronic media containing material supportive of terrorist acts, propaganda for terrorist organisations, or related content.

Within the first 12 days of his release, the offender committed three contraventions of the ICO by accessing material on his permitted devices that fell within the prohibited categories. He pleaded guilty to a single charge of contravening the ICO contrary to s 104.27 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of five years' imprisonment.

  • What was the appropriate head sentence for a breach of an interim control order in the context of the offender's prior terrorism-related convictions?
  • What discount applied for the offender's early guilty plea?
  • How should the court approach the non-parole period, given the mandatory three-quarter rule applicable to Commonwealth terrorism offences?
  • Whether the court should reduce the head sentence to account for the possibility that the Commonwealth Attorney-General might decline to release the offender on parole.

Decision

Neilson DCJ assessed the offending as serious, noting that the ICO had been personally served on the offender and that he had signed each page of the accompanying explanation document. The offender was plainly aware of his obligations: phone calls recorded on the day of his release showed he understood the strict nature of the controls. Despite this awareness, he accessed prohibited material within days of release, and the content accessed included material from a figure whose sermons contained statements that persons of certain beliefs could be regarded as non-believers whose "blood is permissible."

His Honour fixed a starting head sentence of two years and three months. Applying a 25% discount for the guilty plea, entered at the earliest available opportunity, this was reduced to 20 months. A non-parole period of 15 months was set, consistent with the mandatory three-quarter rule applicable to Commonwealth terrorism offences under the Crimes Act 1914 (Cth). This rule requires a non-parole period equal to three-quarters of the head sentence and applies regardless of whether the head sentence falls below three years (unlike the general Commonwealth sentencing regime, where a non-parole period is only imposed for sentences exceeding three years).

The court addressed a submission that the offender was unlikely to be admitted to parole because of Commonwealth government policy, noting that the decision rests with the Attorney-General rather than a parole board or the court. Neilson DCJ held that the court was required to impose a non-parole period regardless, and that reducing the head sentence simply to avoid the consequences of a potential denial of parole would be contrary to the court's duty.

Orders Made

  • The offender was convicted of contravening an interim control order contrary to s 104.27 of the Criminal Code Act 1995 (Cth).
  • Sentenced to imprisonment for one year and eight months, commencing 16 January 2021 and concluding 15 September 2022.
  • Non-parole period of one year and three months, expiring 15 April 2022.

Key Takeaways

  • Under the Commonwealth terrorism sentencing regime, a mandatory three-quarter non-parole period applies to offences such as breach of an interim control order, and this rule operates even where the head sentence is less than three years, distinguishing it from the general Commonwealth sentencing framework.
  • A 25% discount for a guilty plea entered at the earliest available opportunity was applied, consistent with established Commonwealth sentencing practice.
  • The District Court confirmed that it cannot reduce a head sentence simply to minimise the risk that the Commonwealth Attorney-General will decline to release an offender on parole. The court's duty is to impose the correct sentence; parole decisions remain with the executive.
  • Where an offender has been personally served with an ICO and has signed an acknowledgment of its terms, knowledge of the conditions is treated as established, and subsequent breach carries significant weight in sentencing.
  • Prior convictions for terrorism-related offending form part of the relevant sentencing background, particularly when the current offence arises so shortly after release from the earlier sentence.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 102.1(1), 104.27, 109.8(1)
- Crimes Act 1914 (Cth)

Cases:
- R v Alo-Bridget Namoa (Parramatta District Court, 29 November 2021)
- Naizmand v R [2018] NSWCCA 25
- R v MO (No 1) [2016] NSWDC 144
- Regina (Cth) v Ahmad Saiyer Naizmand [2017] NSWDC 4