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Supreme Court 7 June 2022

R v Taleb

[2022] NSWSC 888

Firearms & weaponsPublic order & justice offences
SENTENCING PENALTIES RECOGNIZANCE BREACH COMMUNITY SAFETY RADICALISATION

Citation: R v Taleb [2022] NSWSC 888
Court: Supreme Court of New South Wales
Date: 7 June 2022
Judge(s): Hamill J

Background

In 2019, the Supreme Court sentenced an offender for conduct preparatory to committing a foreign incursion offence under s 119.4 of the Criminal Code 1995 (Cth). The offending occurred in 2017 when the offender, then aged 22 and psychiatrically unwell, was arrested at Sydney Airport while attempting to travel to Syria to join Islamic State. Having already served close to two years on remand in onerous conditions, Hamill J imposed a conditional release order (a recognizance) under s 20(1)(a) of the Crimes Act 1914 (Cth) for five years, with strict supervision, psychiatric treatment, and de-radicalisation conditions.

The offender complied with those conditions for more than a year. From November 2020 through to April 2021, however, he committed multiple breaches. The most serious breach involved his arrest on 16 April 2021 when he was found in possession of a loaded, shortened, and defaced shotgun, along with ammunition, in contravention of a firearms prohibition order. He was separately sentenced to 24 months' imprisonment with a 13-month non-parole period for those firearms offences. The NSW State Parole Authority subsequently revoked his parole.

The Commonwealth Director of Public Prosecutions brought proceedings under s 20A of the Crimes Act 1914 (Cth), seeking to have the recognizance revoked and the offender re-sentenced for the original foreign incursion offence.

  • Whether the established breaches of the s 20(1)(a) recognizance required its revocation under s 20A of the Crimes Act 1914 (Cth)
  • What sentence was appropriate for the original foreign incursion offending upon re-sentencing, taking into account the principles of proportionality and totality
  • Whether community safety considerations required a further term of imprisonment, or whether an alternative order such as a Community Corrections Order could adequately address protection of the public, psychiatric treatment, and de-radicalisation

Decision

Hamill J found the breaches established on the offender's admissions and the prosecution evidence. The breaches were serious. They included repeated failures to submit to anti-psychotic medication and psychiatric appointments, failure to engage in de-radicalisation counselling, possession of cannabis, and most significantly, possession of a loaded prohibited firearm and ammunition in breach of a firearms prohibition order.

In approaching re-sentencing, the court applied the principles of proportionality and totality, drawing on Veen v The Queen (No 2) (1988) 164 CLR 465. The court had to avoid double-punishing the offender for the same conduct and had to account for the custodial sentence already being served for the firearms offences. The time the offender had already spent in custody, combined with the sentence being served, was a significant factor against imposing an additional term of imprisonment.

Despite the serious concerns about community safety, Hamill J concluded that imposing a Community Corrections Order under s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was the most appropriate response. The court reasoned that structured supervision, mandatory psychiatric treatment (including medication compliance), and de-radicalisation conditions would better serve community protection than a further custodial term. The breadth of conditions attached to the order, including restrictions on digital devices and specific online platforms, reflected the particular nature of the original offending.

Orders Made

  • The breaches of the s 20(1)(a) recognizance order, originally made on 14 June 2019, were established on the offender's admissions and prosecution evidence
  • The recognizance order was revoked pursuant to s 20A(5) of the Crimes Act 1914 (Cth)
  • A Community Corrections Order (CCO) was imposed under s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 3 years, commencing 7 June 2022, subject to the following conditions:
  • The offender must not commit any offence
  • The offender must appear before the court if called upon during the CCO period
  • The offender must submit to supervision by a Community Corrections officer
  • The offender must report to the nearest Community Corrections office within seven days of release from custody
  • The offender must attend psychological and other counselling directed at de-radicalisation, as directed by the Community Corrections officer
  • The offender must receive treatment from a psychologist or psychiatrist, including attending arranged appointments and taking prescribed medications, as directed by the Community Corrections officer
  • The offender must comply with any existing Community Treatment Order under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
  • The offender must not use the Telegram messaging application
  • The offender must not access websites or applications associated with, or controlled by, Islamic State, Al Qaeda, or any organisation practising or supporting radical Islam or terrorism
  • The offender must provide a list of all internet-capable electronic devices to which he has access, and notify the Community Corrections officer of any new device acquired during the CCO period
  • The offender must consent to inspection of his electronic devices by the Community Corrections officer and provide any necessary passwords or biometric access to facilitate such inspection

Key Takeaways

  • Under s 20A of the Crimes Act 1914 (Cth), established breaches of a conditional release order made under s 20(1)(a) may result in revocation of that order and re-sentencing for the original offence, with the court applying proportionality and totality principles to avoid punishing the offender twice for the same conduct.
  • A sentence of imprisonment is not the inevitable outcome on re-sentencing following breach, even where the breaches include serious criminal offending. The Supreme Court found that a Community Corrections Order could adequately address community safety where robust supervision, psychiatric treatment, and de-radicalisation conditions were attached.
  • The court's reasoning demonstrates that, in foreign incursion and terrorism-adjacent cases, community protection can be pursued through structured non-custodial orders where the offender is already serving a custodial sentence for related offending and further imprisonment would produce disproportionate outcomes.
  • Conditions tailored to the specific character of the original offending, including restrictions on named online platforms and access to extremist content, formed part of the re-sentencing regime, illustrating the court's capacity to impose technology-specific conditions within a Community Corrections Order.
  • Failure to comply with psychiatric treatment conditions, including anti-psychotic medication, was treated as a matter of serious concern going to community safety, not merely as administrative non-compliance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 20(1), 20A, 20AB
- Criminal Code 1995 (Cth), s 119.4
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Firearms Act 1996 (NSW), ss 39(1)(a), 62(1)(b), 66(1)(b), 74(1), 74(3)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases
- R v Taleb (No 5) (Sentence) [2019] NSWSC 720
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14