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Supreme Court 23 November 2023

R v Lawrence

[2023] NSWSC 1428

Public order & justice offences
SENTENCING TERRORISM OFFENCE POOR PROSPECTS OF REHABILITATION

Citation: R v Lawrence [2023] NSWSC 1428
Court: Supreme Court of New South Wales
Date: 23 November 2023
Judge(s): Ierace J

Background

The offender, aged 27 at the time of sentencing, pleaded guilty to a single "rolled up" count of doing acts in preparation for, or planning, a terrorist act or acts, contrary to s 101.6(1) of the Criminal Code Act 1995 (Cth). The charge carried a maximum penalty of life imprisonment. The offending occurred while the offender was an inmate at the Goulburn High Risk Management Correctional Centre between June and October 2019.

The charge encompassed two particulars. The first involved the offender attempting to recruit a fellow inmate to gather information about Corrective Services NSW officers following that person's release from prison, with a view to directing violence against them. The second related to acts in support of another inmate's plan for an extremist Islamic insurgency. The offender identified as a Salafi-Jihadist and subscribed to the belief that Muslims were religiously obliged to engage in violent jihad, including in Australia.

In addition to the principal offence, the offender admitted guilt to a terrorism advocacy offence under s 80.2C(1) of the Criminal Code, taken into account under s 16BA of the Crimes Act 1914 (Cth). That earlier offence, committed between November 2018 and March 2019, involved the offender using social media and messaging platforms to promote violent jihad while on parole. He distributed content including excerpts from "The Terrorists Handbook" and encouraged physical training and arming for violent action. His criminal history also included prior offences of demanding property by force, being armed with intent, stalking, and intimidating police officers.

  • The appropriate head sentence and non-parole period for a terrorism preparation offence under s 101.6(1) of the Criminal Code, having regard to the two particulars of the rolled-up count
  • How the s 16BA advocacy of terrorism offence should be weighed at sentencing
  • The impact of the offender's catastrophic spinal cord injury (rendering him tetraplegic) on the appropriate sentence, particularly regarding conditions of imprisonment
  • The weight to be given to the offender's childhood deprivation and mental health diagnoses in assessing moral culpability
  • The significance of the offender's continued adherence to violent jihadist beliefs and the resulting assessment of rehabilitation prospects
  • The application of the standard non-parole period provisions and the requirement to fix a minimum term under s 19AG of the Crimes Act 1914 (Cth)

Decision

Ierace J accepted that the offending was serious, involving deliberate acts of preparation for terrorism directed at correctional officers and in support of a plan for an extremist Islamic insurgency, carried out by a committed ideological actor. The court found that the offender had not resiled from his belief in violent jihad and that his rehabilitation prospects were poor. These findings significantly affected the weight given to prospects of rehabilitation as a mitigating consideration.

The court took into account the offender's significant disadvantaged background, including childhood deprivation, and accepted that his mental health diagnoses had some bearing on his moral culpability, consistent with the principles in Bugmy v The Queen (2013) 249 CLR 571. However, these factors did not substantially reduce the seriousness of offending that was ideologically driven and carefully planned.

The offender's catastrophic spinal cord injury, suffered in custody in November 2021 and rendering him tetraplegic, was treated as a substantial mitigating factor. The injury significantly affected his conditions of imprisonment and the burden that any custodial sentence would impose on him relative to an able-bodied offender. The court weighed this against the need for specific and general deterrence, protection of the community, and denunciation, which carry particular weight in terrorism matters.

The court also gave weight to the guilty plea, though the timing and utilitarian value were considered in accordance with the applicable principles. The advocacy offence, taken into account under the s 16BA schedule, was treated as aggravating context that preceded and informed the principal offending, reinforcing the ideological seriousness of the conduct.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A conviction for terrorism preparation under s 101.6(1) of the Criminal Code Act 1995 (Cth) carries a maximum of life imprisonment, and sentencing courts must grapple with the full range of factors under s 16A of the Crimes Act 1914 (Cth), including specific and general deterrence and community protection, which carry heightened significance in terrorism matters.
  • Catastrophic physical injury suffered in custody can constitute a substantial mitigating factor in sentencing, given its effect on the nature and burden of imprisonment, even in cases involving serious terrorist offending.
  • Consistent with Bugmy v The Queen, childhood deprivation and mental health diagnoses may reduce an offender's moral culpability, but their mitigating weight is assessed in context and does not automatically diminish the gravity of ideologically motivated offending.
  • Where an offender has not resiled from extremist beliefs at the time of sentencing, the court will treat prospects of rehabilitation as poor, which in turn limits the weight that can be given to rehabilitation as a mitigating sentencing consideration.
  • An advocacy of terrorism offence taken into account under a s 16BA schedule can inform and aggravate the sentencing assessment for a principal terrorism preparation offence, particularly where the advocacy preceded and was consistent with the ideological motivation underlying the later conduct.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 80.2C, 101.6, 105A.23, 119.4
- Crimes Act 1914 (Cth), ss 16A, 16BA, 16F, 17A, 19AG
- Crimes (Administration of Sentences) Act 1999 (NSW), s 10

Cases
- Alou v R (2019) 101 NSWLR 319; [2019] NSWCCA 231
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Elomar v R [2014] NSWCCA 303
- Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360
- R v El Matari [2021] NSWSC 1260
- R v Elomar [2010] NSWSC 10
- Xiao v R (2018) NSWLR 1; [2018] NSWCCA 4