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Court of Criminal Appeal 30 June 2023

Homewood v R

[2023] NSWCCA 159

Firearms & weaponsPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE WHETHER LESSER SENTENCE WARRANTED CRIME APPEALS

Citation: Homewood v R [2023] NSWCCA 159
Court: NSW Court of Criminal Appeal
Date: 30 June 2023
Judges: Beech-Jones CJ at CL; Ierace J; Cavanagh J

Background

The appellant was sentenced in the District Court at Parramatta on 3 February 2023 for two offences. The primary offence was advocating terrorism under s 80.2C of the Criminal Code Act 1995 (Cth), arising from a sustained 31-month campaign across multiple online platforms in which the appellant promoted mass violence against racial and religious minorities, called for the assassination of Australian government leaders, and glorified perpetrators of racially motivated mass killings. The secondary offence was failing to lawfully store ammunition under s 40(1) of the Firearms Act 1996 (NSW), after police found over 8,000 rounds of assorted ammunition in the appellant's bedroom following his arrest.

The District Court imposed a sentence of 2 years and 7 months with a non-parole period of 1 year and 11 months for the terrorism offence, and a wholly concurrent fixed-term sentence of 8 months for the ammunition offence. The sentencing judge declined to make an intensive correction order (ICO) in respect of the terrorism offence.

The appellant sought leave to appeal against both aspects of the sentence, arguing the ammunition sentence was manifestly excessive and that the sentencing judge erred in the approach taken to whether an ICO could be made for the terrorism offence.

  • Whether the sentence imposed for the ammunition offence was manifestly excessive, given that the notional starting point appeared to equal the maximum penalty despite a finding that the offence was not in the worst category of objective seriousness.
  • Whether an ICO is a sentence or order that "involves" imprisonment or detention within the meaning of s 20AB(6) of the Crimes Act 1914 (Cth), such that it is unavailable for a minimum non-parole offence.
  • Whether s 20AB(1A) of the Crimes Act 1914 (Cth) operates to remove the requirement to first impose a sentence of imprisonment before making an ICO for a federal offence, thereby enabling an ICO to be made for a minimum non-parole offence.

Decision

On the ammunition offence (Ground 1): The Court found the sentence manifestly excessive. The sentencing judge's notional starting point of 12 months' imprisonment was equivalent to the maximum penalty for the offence, yet the judge had also found the objective seriousness did not reach the worst category. Following the principle in The Queen v Kilic, setting a starting point at the maximum is irreconcilable with a finding that the offending falls short of the worst case. After reducing for the early guilty plea, the 8-month fixed-term sentence could not stand.

On the ICO question (Ground 2): The Court held unanimously that an ICO is not an available sentencing option for a minimum non-parole offence. Under s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), an ICO can only be made once a court has sentenced an offender to a term of imprisonment. Because making an ICO necessarily requires a prior sentence of imprisonment, such an order "involves" imprisonment within the meaning of s 20AB(6) of the Crimes Act 1914 (Cth), which prohibits exactly that for minimum non-parole offences.

The appellant's argument that s 20AB(1A) removes the need to first impose imprisonment, such that an ICO for a federal offence does not "involve" detention or imprisonment, was rejected. The Court found that argument rested on an artificial and unduly narrow reading of the word "imprisonment," contrary to its ordinary meaning, its legislative context, and the purpose of s 20AB(6). The Supplementary Explanatory Memorandum to the Anti-Terrorism Bill 2004 (Cth) reinforced this conclusion, confirming that s 20AB(6) was specifically intended to prevent sentencing alternatives from being used to circumvent the operation of s 19AG.

On resentencing: The Court resentenced the appellant to 2 years and 4 months' imprisonment with a non-parole period of 1 year and 9 months for the terrorism offence. The ratio of non-parole period to total sentence reflects the 75 per cent minimum prescribed by s 19AG(1)(c) and (2) of the Crimes Act 1914 (Cth). A concurrent fixed-term sentence of 5 months was imposed for the ammunition offence.

Orders Made

No orders were made in this decision.

Key Takeaways

  • An ICO is a sentence or order that "involves" imprisonment for the purposes of s 20AB(6) of the Crimes Act 1914 (Cth), because a court must first sentence an offender to imprisonment before an ICO can be made under s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Section 20AB(6) prohibits the use of ICOs (and other sentencing alternatives listed in s 20AB(1AA)) for minimum non-parole offences under s 19AG of the Crimes Act 1914 (Cth), which includes offences under Division 80 of the Criminal Code Act 1995 (Cth) such as advocating terrorism.
  • The argument that s 20AB(1A) enables an ICO to be made for a federal minimum non-parole offence without first imposing imprisonment was rejected as contrary to the ordinary meaning of "imprisonment," its context, and the legislative purpose of s 20AB(6).
  • Setting a sentencing starting point at or equivalent to the maximum penalty is irreconcilable with a concurrent finding that the objective seriousness of the offending does not fall into the worst category, following The Queen v Kilic (2016) 259 CLR 256.
  • Under s 19AG(1)(c) and (2) of the Crimes Act 1914 (Cth), the non-parole period for a minimum non-parole offence must be at least 75 per cent of the total sentence, a ratio the Court of Criminal Appeal applied on resentencing.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 80.2C
- Crimes Act 1914 (Cth), ss 19AG, 20AB(1), (1A), (1AA), (6)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 7
- Firearms Act 1996 (NSW), s 40(1)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Acts Interpretation Act 1901 (Cth), ss 15AB(1)(a), (2)(e)
- Judiciary Act 1903 (Cth), s 68(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW)

Cases:
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Mourtada v The Queen [2021] NSWCCA 211; (2021) 290 A Crim R 514
- Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97
- Al Am Ali v R [2021] NSWCCA 281
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3
- R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225
- R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522
- Commonwealth Director of Public Prosecutions v Joyce [2022] FCA 1423