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Court of Criminal Appeal 26 June 2023

Al-Kutobi and Kiad v R

[2023] NSWCCA 155

Public order & justice offences
CRIME APPEAL SENTENCE APPEAL CONSIDERATION OF POSSIBLE “XIAO ERROR” SENTENCING DISCRETION EXERCISED AFRESH ROLE OF RENUNCIATION AND REHABILITATION

Citation: Al-Kutobi and Kiad v R [2023] NSWCCA 155
Court: Court of Criminal Appeal, New South Wales
Date: 26 June 2023
Judges: Kirk JA; Button J; Hamill J

Background

The two applicants were sentenced in December 2016 for a single Commonwealth offence: conspiring together to do acts in preparation for, or planning, a terrorist act under the Criminal Code Act 1995 (Cth). Each received a head sentence of 20 years' imprisonment with a non-parole period of 15 years, commencing 10 February 2015.

At the original sentencing, the judge did not explicitly quantify a discount for the utilitarian value of the guilty pleas. His Honour acknowledged a submission that a discount in the range of 17.5 to 20 per cent ought to apply, indicated a discount "about the bottom of that range" had been allowed, and said there was "little difference" between allowing for utilitarian benefit and the approach he took. The pleas had been entered five days before the trial date, though their practical value had been reduced by a contested facts hearing that was resolved against the applicants.

In 2018, the Court of Criminal Appeal decided Xiao v R, which clarified that an explicit, identifiable discount for the utilitarian value of a guilty plea is required when sentencing for Commonwealth offences. The applicants sought leave to appeal on the basis that the original sentencing had not complied with this approach.

  • Whether the sentencing judge erred by failing to explicitly quantify a discount for the utilitarian value of the guilty pleas, in light of Xiao v R
  • Whether the appeal should be allowed and the sentencing discretion exercised afresh
  • What discount was appropriate for the utilitarian value of the pleas
  • What weight should be given to post-sentence evidence of renunciation of extremism and rehabilitation in the context of terrorism offending
  • How the purposes of sentencing, including incapacitation, general and personal deterrence, interact with strong evidence of rehabilitation and genuine renunciation in terrorism cases

Decision

The Court allowed the appeal, accepting that the sentencing judge did not have the benefit of Xiao v R when imposing sentence and could not be criticised for the approach taken at the time. Once Xiao v R established that an explicit utilitarian discount is required for Commonwealth offences, the original sentencing process was found to involve error. The Crown conceded the point.

The Court set the appropriate utilitarian discount for each applicant's plea at 10 per cent. Separately, the pleas were also treated as indicating some willingness to facilitate the course of justice and as an early stage of developing acceptance of wrongfulness, matters relevant to the instinctive synthesis of the appropriate sentence rather than a separate numerical discount.

The Court considered the purposes of sentencing for terrorism offences at length. It confirmed that such offending is an attack on the democratic polity, is almost always extremely grave, and calls for significant general deterrence. However, the Court noted that where a sentencer is genuinely satisfied an offence will not be repeated, incapacitation of itself becomes unnecessary rather than irrelevant. Post-sentence evidence covering several years was of real significance: both applicants had renounced their extremist beliefs publicly, had made efforts at rehabilitation, had endured particularly onerous conditions during the pandemic, and had been moved to a less secure correctional facility, reflecting an assessment that they did not pose a radicalisation risk to other prisoners.

Taking the error and the post-sentence evidence together, the Court was satisfied a lesser sentence was warranted. The original sentences were quashed and each applicant was resentenced to 16 years' imprisonment with a non-parole period of 12 years, commencing 10 February 2015.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentences quashed
  • Each applicant resentenced to 16 years' imprisonment with a non-parole period of 12 years, commencing 10 February 2015

Key Takeaways

  • Following Xiao v R, sentencing for Commonwealth offences requires an explicit, identifiable discount for the utilitarian value of a guilty plea; a general acknowledgment that "some allowance" has been made is insufficient.
  • A distinction exists between two plea-related considerations: the utilitarian value (an objective matter going to the saving of court time and resources, attracting an identifiable reduction) and willingness to facilitate the course of justice (a subjective matter informing the instinctive synthesis, not expressed as a separate percentage discount).
  • In terrorism sentencing, incapacitation loses much of its force where the evidence of rehabilitation is strong and the offender has genuinely renounced previously held extremist views, though protection of the community, deterrence, and denunciation retain significant weight.
  • Post-sentence evidence of rehabilitation and renunciation is properly received when an intermediate appellate court re-exercises the sentencing discretion, as confirmed by application of Betts v The Queen and Kentwell v The Queen.
  • The Court of Criminal Appeal adopted the course of upholding the appeal on the identified error and proceeding immediately to resentence, rather than remitting the matter, consistent with the approach taken in Diaz v R and the parties' joint submissions.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 101.6(1) and 11.5(1)
- Crimes Act 1914 (Cth)

Cases
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Diaz v R [2019] NSWCCA 216
- Garcia-Godos v R [2021] NSWCCA 229
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Al-Kutobi; R v Kiad [2016] NSWSC 1760
- Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360
- Benbrika v R (2010) 29 VR 593; [2010] VSCA 281
- DPP (Cth) v MHK (a Pseudonym) (No 1) (2017) 52 VR 272; [2017] VSCA 157
- Director of Public Prosecutions (Cth) v Besim [2017] VSCA 158
- IM v R (2019) 100 NSWLR 110; [2019] NSWCCA 107
- Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
- Khalid v R [2020] NSWCCA 73
- Smith v R [2020] NSWCCA 181
- Director of Public Prosecutions (Cth) v Ali [2020] VSCA 330
- Director of Public Prosecutions (Cth) v Gow (2015) 252 A Crim R 573; [2015] NSWCCA 208
- R v Bayda; R v Namoa (No 8) [2019] NSWSC 24
- Tyler v The Queen (2007) 173 A Crim R 458; [2007] NSWCCA 247