AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 2 December 2022

R v Hatahet

[2022] NSWDC 765

Public order & justice offences

Citation: R v Hatahet [2022] NSWDC 765
Court: District Court of New South Wales
Date: 2 December 2022
Judge: Baker SC DCJ

Background

The offender, an Australian citizen born in Jordan, was charged with engaging in hostile activity in a foreign state, contrary to s 6(1)(b) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The offence carried a maximum penalty of 20 years imprisonment. The conduct in question occurred in Syria between 25 September and 13 December 2012, during the early years of the Syrian Civil War.

The agreed facts described the offender travelling from Australia to Jordan, ostensibly to visit family, before entering Syria. A series of videos, sent by the offender from his iPhone to email accounts, depicted him armed with military weapons including a Kalashnikov rifle and a recoilless anti-tank system. Other videos showed armed groups singing jihadist chants and footage consistent with the aftermath of an explosion.

The offender pleaded guilty in the Local Court in May 2021 and adhered to that plea before Baker SC DCJ in October 2022. At the sentence hearing he gave evidence, and the court received expert material on Middle Eastern studies, as well as affidavit evidence from the offender's wife and solicitor.

  • What was the appropriate head sentence and non-parole period for the offence, having regard to all relevant sentencing factors under s 16A of the Crimes Act 1914 (Cth)?
  • What discount, if any, was warranted for the guilty plea?
  • What weight should be given to general and specific deterrence in sentencing for this type of offence?
  • How should onerous custodial conditions experienced by the offender affect the sentence?
  • Whether full-time imprisonment was the only appropriate sentencing option, and how the non-parole period should be structured given no statutory ratio applies to Commonwealth offences.

Decision

Baker SC DCJ concluded that full-time imprisonment was the only appropriate sentence, given the seriousness of the offence, the maximum penalty of 20 years, and the strong need for both punishment and general deterrence. The judge cited the principle from Fardon v Attorney-General (Qld) (2004) 223 CLR 575 that a custodial term was necessary to communicate "the censure of society."

The court accepted that no statutory or judicially determined ratio governs the relationship between the non-parole period and the head sentence for Commonwealth offences. Drawing on Power v The Queen (1974) 131 CLR 623 and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520, Baker SC DCJ determined the non-parole period by reference to what, in all the circumstances, represented the minimum period of actual incarceration.

A 25 per cent discount was applied to the sentence in recognition of the guilty plea. The court also took into account the offender's custodial conditions, which were described as onerous, as a mitigating factor when fixing both the head sentence and the commencement date.

Orders Made

  • The offender was convicted on the count in the indictment.
  • Sentenced to imprisonment with a non-parole period of 3 years commencing 24 August 2020.
  • Head sentence of 5 years, expiring 23 August 2025.
  • Eligible for release on parole on 23 August 2023.
  • The sentence reflected a 25 per cent discount for the guilty plea.

Key Takeaways

  • Under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), engaging in hostile activity in a foreign state carries a maximum of 20 years imprisonment, and the District Court confirmed that full-time custody will ordinarily be the only appropriate sentencing response given the gravity of such conduct.
  • For Commonwealth offences, no fixed or conventional ratio exists between the non-parole period and the head sentence; the court's discretion is unconstrained by formula and is guided solely by what constitutes the minimum necessary period of actual incarceration on the facts.
  • A guilty plea attracted a 25 per cent sentencing discount, consistent with established Commonwealth sentencing principles.
  • Onerous conditions of pre-sentence custody were treated as a relevant mitigating consideration, affecting both the length of the sentence and the commencement date of the non-parole period.
  • General deterrence carried significant weight in the sentencing exercise, reflecting the broader concern about Australians travelling to conflict zones to participate in foreign hostilities.

Legislation and Cases Referenced

Legislation
- Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6(1)(b)
- Crimes Act 1914 (Cth), ss 16A, 17A, 19AB

Cases
- Fardon v The Attorney-General (Qld) (2004) 223 CLR 575
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Power v The Queen (1974) 131 CLR 623
- R v Biber [2018] NSWSC 535
- The Queen v Olbrich (1999) 199 CLR 270
- Weininger v The Queen (2003) 212 CLR 629
- Xiao v R [2018] NSWCCA 4