AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 15 May 2023

R v Biber

[2023] NSWDC 292

Public order & justice offences
CRIMINAL LAW COMMONWEALTH SENTENCE CONTRAVENTION OF CONTROL ORDER

Citation: R v Biber [2023] NSWDC 292
Court: District Court of New South Wales
Date: 15 May 2023
Judge(s): Buscombe DCJ

Background

The offender had previously been convicted in 2018 of entering Syria with intent to engage in hostile activity, for which he served a sentence of four years and nine months. Upon his release in August 2021, he was immediately served with an interim control order issued by the Federal Court under s 104.4 of the Commonwealth Criminal Code. That order was confirmed with minor variation in October 2021, and the offender was explicitly informed on both occasions that contravening its terms was a criminal offence.

One of the control order's conditions (Control 9) required the offender to notify the AFP superintendent before undertaking any paid work, providing details of the employer and the nature of the work. The offender was otherwise compliant with this condition in relation to various casual labour work, notifying the AFP on ten occasions.

Between October 2021 and April 2022, however, the offender covertly participated in a business importing and selling counterfeit luxury goods through a Facebook page called "Designer Haus Official." Despite his awareness of the notification obligation, intercepted phone calls revealed that he deliberately structured his involvement to avoid appearing officially connected to the business, so as not to trigger the reporting requirement. He failed to notify the AFP of this commercial activity, thereby contravening Control 9.

  • Whether the offender's conduct constituted an intentional contravention of his control order under s 104.27 of the Commonwealth Criminal Code.
  • What sentence was appropriate having regard to Part 1B and s 16A of the Crimes Act 1914 (Cth), including the fact that this was a terrorism-related offence.
  • Whether the circumstances warranted imprisonment, or whether a community corrections order was available and appropriate under s 20AB of the Crimes Act 1914 (Cth).

Decision

The offender pleaded guilty to knowingly contravening his control order, an offence carrying a maximum of five years' imprisonment. Buscombe DCJ noted the serious nature of the breach: the offender had been explicitly warned of his obligations, had recorded those obligations in his own notes, yet deliberately concealed his commercial involvement to avoid triggering the reporting requirement. The intercepted calls demonstrated a conscious and calculated evasion.

Despite the gravity of the offence and the importance of general deterrence in terrorism-related sentencing, the judge found that imprisonment was not the only appropriate sentence in all the circumstances. Considerable weight was given to the specific nature of the breach (participation in a counterfeit goods operation rather than any terrorism-related conduct), the offender's early guilty plea, his good prospects for rehabilitation, and the significant hardship that imprisonment would impose on his wife and young children.

The Crown conceded that a community corrections order was legally available under s 20AB of the Crimes Act 1914 (Cth), and Buscombe DCJ agreed it was the appropriate disposition. The judge emphasised that sentencing is an exercise of instinctive synthesis, weighing competing factors, and that justice must be individual. The sentence imposed reflected that balance.

Orders Made

  • The offender was convicted of knowingly breaching his control order.
  • A community corrections order was imposed for two years, commencing 15 May 2023 and expiring 14 May 2025, with the following conditions:
  • No further criminal offences to be committed.
  • The offender must appear before the Court if called upon during the term of the order.
  • 250 hours of community service to be performed.
  • For the first eight months of the order, the offender is not to leave his residence between 8pm and 6am, except for a medical emergency or employment.
  • The offender must present himself at the door of his premises for compliance checks by NSW Police or AFP officers.
  • Supervision by Community Corrections.
  • The offender was required to contact Parramatta Community Corrections by 4pm on 16 May 2023.

Key Takeaways

  • A contravention of a federal control order under s 104.27 of the Criminal Code Act 1995 (Cth) carries a maximum of five years' imprisonment and is treated as a terrorism offence for sentencing purposes under the Crimes Act 1914 (Cth).
  • General deterrence carries significant weight in sentencing for terrorism-related offences, but the District Court confirmed it does not automatically mandate a custodial sentence in every case.
  • Where an offender's breach of a control order involves covert commercial activity rather than conduct with a direct terrorism nexus, the specific character of the breach is a relevant factor in assessing overall culpability.
  • An early guilty plea, genuine rehabilitation prospects, and hardship to dependants were each treated as meaningful mitigating considerations, capable of displacing a sentence of imprisonment even in a terrorism-related context.
  • Under s 20AB of the Crimes Act 1914 (Cth), a community corrections order is available as a sentencing option for Commonwealth terrorism offences, provided the court is satisfied it is appropriate in all the circumstances.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 104.4, 104.27
- Crimes Act 1914 (Cth), Part 1B, ss 16A, 20AB
- Crimes (Foreign Incursions and Recruitment) Act (Cth)

Cases cited: No cases were cited in the material provided.