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District Court 17 November 2023

R v Greenfield

[2023] NSWDC 497

Public order & justice offences
CRIME SENTENCE

Citation: R v Greenfield [2023] NSWDC 497
Court: District Court of New South Wales
Date: 17 November 2023
Judge(s): Colefax SC DCJ

Background

The offender, a 34-year-old man with a lengthy criminal history dating from 2006, appeared for sentencing on a single charge of knowingly collecting documents connected with terrorism, contrary to s 101.5(1) of the Commonwealth Criminal Code. The maximum penalty for this offence is 15 years' imprisonment.

Between 6 and 20 December 2021, the offender shared three documents online: two issues of "Inspire" magazine (an Al Qaeda propaganda publication containing bomb-making instructions) and an extract from a book entitled "Middle Eastern Terrorist Bomb Designs." He shared these materials via Instagram and Telegram channels, including to a person he believed to be a sympathetic contact but who was in fact an Online Covert Operative (OCO). He accompanied at least one post with a written statement expressing an intention to carry out multiple attacks on police stations across Sydney.

A search warrant executed on 24 December 2021 located electronic copies of all three documents on a MicroSD card at the offender's home. He had a prior conviction for using a carriage service to menace, harass or offend, with facts described by the sentencing judge as "deeply disturbing," and he was subject to a community corrections order at the time of the present offending.

  • What was the objective seriousness of the offending under s 101.5(1) of the Commonwealth Criminal Code?
  • What weight should be given to general and specific deterrence in sentencing for terrorism-related document offences?
  • How should the offender's subjective circumstances, including mental health evidence, prior criminal history, and cooperation with police, affect the sentence?
  • What discount, if any, was appropriate for the early plea of guilty?
  • What allowance, if any, should be made for the onerous conditions of imprisonment experienced while on remand?

Decision

Colefax SC DCJ assessed the objective seriousness of the offending as high and above the midpoint for this type of offence. Although the Crown conceded there was no evidence before the court that the bomb-making instructions were accurate, the judge noted that the offender himself believed them to be accurate. The judge expressed reservations about whether the Crown's concession on this point was correctly made, but was constrained by it for the purposes of the sentencing exercise.

The offending was further aggravated by the fact that it was committed while the offender was on a community corrections order, and by his prior criminal history, which included offences of violence, weapons offences, and dishonesty. The judge noted significant inconsistencies between the psychiatric report tendered on the offender's behalf and his mother's affidavit, which undermined the offender's ability to discharge his burden of proof in mitigation on the balance of probabilities.

On general and specific deterrence, the judge placed substantial weight on both. Drawing on observations made in R v Lodhi at first instance (and approved by the Court of Criminal Appeal), the judge affirmed that terrorism-related offences require substantial and condign sentences. The onerous conditions of remand were acknowledged and some allowance was made, but the judge noted such an allowance should not be substantial or mathematically calculated.

A 25 per cent discount was applied to the head sentence for the utilitarian value of the early guilty plea, reducing the starting sentence of 6 years and 9 months to a total term of 5 years.

Orders Made

  • The offender was sentenced to 5 years' imprisonment (after a 25% guilty plea discount from a starting point of 6 years 9 months).
  • A non-parole period of 3 years and 9 months was fixed, commencing 24 December 2021, with eligibility for parole on 23 September 2025.
  • The balance of term was fixed at 1 year and 3 months, commencing 24 September 2025 and expiring 23 December 2026.
  • The sentence was backdated to the date of arrest: 24 December 2021.

Key Takeaways

  • The District Court held that an offender's subjective belief in the accuracy of terrorism-related bomb-making instructions is relevant to objective seriousness, even where the Crown concedes it cannot prove the instructions were in fact accurate.
  • Under s 101.5(1) of the Commonwealth Criminal Code, sharing documents connected with terrorism across multiple online platforms, accompanied by statements of violent intent, can place offending well above the midpoint of objective seriousness.
  • General and specific deterrence carry significant weight in sentencing for terrorism document offences, consistent with principles affirmed by the Court of Criminal Appeal in Faheem Khalid Lodhi v R [2007] NSWCCA 360.
  • Inconsistencies between different pieces of evidence tendered in mitigation by the same party can undermine the offender's ability to establish favourable subjective circumstances on the balance of probabilities.
  • Onerous remand conditions may attract some sentencing allowance, but courts following R v Lodhi have confirmed that allowance should not be substantial or reduced to a mathematical formula.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 101.5(1)

Cases:
- R v Lodhi (first instance judgment, Whealy J)
- Faheem Khalid Lodhi v R [2007] NSWCCA 360