Abbas v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0041

HAMZA ABBAS	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR and KIDD JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2025
DATE OF JUDGMENT:	27 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 116
JUDGMENT APPEALED FROM:	[2019] VSC 775 (Beale J)

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CRIMINAL LAW – Appeal – Sentence – Applicant convicted of conspiracy to do acts in preparation for or planning a terrorist act – Co‑conspirators convicted of separate terrorism offending – Total effective sentence of co‑conspirators reduced on appeal on application of totality principle by lessening period of cumulation between sentences – Whether marked disparity in sentences relevant to common offending has resulted – Whether applicant has a justifiable sentence of grievance – Differences in sentences explicable by objective criteria – Application for extension of time in which to seek leave to appeal granted – Application for leave to appeal refused.

Crimes Act 1914 (Cth), s 19AB(2).

Postiglione v The Queen (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462; Kellway v The King [2023] VSCA 109; Mohamed v The Queen (2022) 367 FLR 482; Mohamed v The King [No 2] [2023] VSCA 177; Chaarani v the King [2023] VSCA 275; Kelly v R [2017] NSWCCA 256; Wood v R [2022] NSWCCA 84, referred to.

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Counsel
Applicant:		Mr C Parkin
Respondent:		Mr N Robinson KC
Solicitors
Applicant:	Lawyers Corp
Respondent:	Mr M De Crespigny, Solicitor for Public Prosecutions (Cth)

PRIEST JA:

I agree with Taylor JA, whose reasons for judgment I have had the considerable advantage of reading in draft.

TAYLOR JA:

Introduction

On 2 November 2018 the applicant and two co‑offenders, Abdullah Chaarani (‘Chaarani’) and Ahmed Mohamed (‘Mohamed’), were each convicted by a Supreme Court jury of one charge of conspiring to do acts in preparation for or planning a terrorist act.
The offending related to an agreement to do an act or acts in preparation for or planning a mass casualty terrorist attack at Federation Square on or about Christmas Day 2016 (‘Federation Square offending’).
The applicant’s sentencing was deferred pending the outcome of a second trial involving Chaarani and Mohamed, but not the applicant.
On 9 May 2019 Chaarani and Mohamed were each found guilty by a Supreme Court jury of one charge of attempting to engage in a terrorist act and one charge of engaging in a terrorist act. That offending related to an attempt to burn down a mosque and a later act that successfully burnt down the same mosque (‘mosque offending’). It occurred during the same period as the Federation Square offending.[1]
[1]An appeal against conviction was dismissed. See Chaarani & Ors [2020] VSCA 88.
On 24 July 2019 Tinney J sentenced each of Chaarani and Mohamed to 22 years’ imprisonment for the mosque offending. A non‑parole period of 17 years was set.

On 29 November 2019 Beale J sentenced the applicant, Chaarani and Mohamed for the Federation Square offending as set out below. As Chaarani and Mohamed were already serving a federal sentence of imprisonment, the judge was required to set a single new non‑parole period.[2]
[2]Crimes Act 1914 (Cth), s 19AB(2).
(1)Chaarani & Mohamed

Charge	Offence	Max Penalty	Sentence	Commencement
1	Conspiracy to do acts in preparation for, or planning, a terrorist act[3]	Life imprisonment	26 years’ imprisonment	Commences 19.08.2029 (16 years cumulative on the sentence imposed by Tinney J)
Total Effective Sentence (Cth): Non-Parole Period:		38 years (taking into account Tinney J’s sentences) 28 years 6 months
Pre-sentence Detention Declared:		241 days

[3]Contrary to ss 11.5(1), 101.6(1) of the Criminal Code (Cth).

(2)The applicant

Charge	Offence	Max Penalty	Sentence	Cumulation
1	Conspiracy to do acts in preparation for, or planning, a terrorist act[4]	Life imprisonment	22 years’ imprisonment	N/A
Total Effective Sentence (Cth): Non-Parole Period:		22 years 16 years 6 months
Pre-sentence Detention Declared:		1072 days

[4]Contrary to ss 11.5(1), 101.6(1) of the Criminal Code (Cth).

A number of subsequent applications by each of Mohamed and Chaarani for leave to appeal against sentence are relevant to the present application.
On 13 July 2022 this Court allowed an appeal by Mohamed against the sentence imposed by Beale J, finding that the order for cumulation of 16 years between the two sentences was manifestly excessive and infringed the principle of totality.[5] The Court resentenced Mohamed to a total effective sentence of 32 years’ imprisonment with a single non‑parole period of 24 years as follows.
[5]Mohamed v The Queen (2022) 367 FLR 482 (‘Mohamed’); [2022] VSCA 136.

Charge

Offence

Max Penalty

Sentence

Cumulation

Conspiracy to do acts in preparation for, or planning, a terrorist act[6]

Life imprisonment

26 years’

imprisonment

Commences 19.08.2023

(10 years cumulative on the sentence imposed by Tinney J)

Total Effective Sentence (Cth):

Non-Parole Period:

32 years

24 years (taking into account Tinney J’s sentences)

[6]Contrary to ss 11.5(1), 101.6(1) of the Criminal Code (Cth).

On 3 August 2023 this Court refused Mohamed leave to appeal against the sentence imposed by Tinney J.[7] Although the judge had made a sentencing error with respect to the non‑consideration of family hardship,[8] leave to appeal was refused as there was no reasonable prospect that the Court would reduce the total effective sentence for the mosque offending.
[7]Mohamed v The King [No 2] [2023] VSCA 177.
[8]Tinney J imposed sentence some 10 days prior to the judgment of the New South Wales Court of Criminal Appeal in Totaan v The Queen (2022) 108 NSWLR 17 (‘Totaan’); [2022] NSWCC 75. In light of Totaan, the non‑consideration of family hardship by Tinney J was an error.
On 13 November 2023 this Court allowed an appeal by Chaarani against the sentence imposed by Beale J.[9] It was held that as there was little to distinguish between the offending and subjective circumstances of Chaarani and Mohamed, the principle of parity required the order for cumulation in Chaarani’s sentence to be adjusted to reflect the same order for cumulation made in the resentence of Mohamed.[10] The Court refused Chaarani’s application for an extension of time to appeal the sentence imposed by Tinney J as there was no reasonable prospect that the Court would reduce the total effective sentence for the mosque offending.
[9]Chaarani v the King [2023] VSCA 275 (‘Chaarani’).
[10]Chaarani, [28]–[29] (Emerton P, Niall and Kaye JJA).
The applicant now seeks leave for an extension of time in which to appeal against his sentence on the following single ground.
There is an unjustified disparity in the sentence imposed on me as against my co‑offenders (in particular, Ahmed Mohamed and Abdullah Chaarani).
The respondent does not oppose the application for the extension of time.
For the reasons below we would grant the application for the extension of time but refuse the application for leave to appeal against sentence.

The Federation Square offending

The conspiracy alleged spanned late October to 22 December 2016, being the date on which the applicant, Chaarani, Mohamed and Ibrahim Abbas (‘Ibrahim’)[11] were arrested.
[11]Ibrahim is the brother of the applicant. He pleaded guilty to the offence.
Both in the lead up to and during the period of the conspiracy, each offender gained access to materials on the internet supportive of Islamic State (‘IS’) and violent jihad. Of this Beale J said
That each of you entered into the alleged conspiracy satisfies me that each of you ultimately embraced IS’s hateful ideology. Your views were so warped by IS ideology that you came to believe that mass slaughter of innocent civilians in the city of Melbourne, on or about Christmas Day 2016, would be a glorious act, pleasing to Allah. The stupidity of that belief was only matched by its malevolence.[12]
[12]R v Abbas, Chaarani & Mohamed [2019] VSC 775, [3] (Beale J) (‘Sentencing Reasons’).
Each offender carried out acts preparatory to the proposed terrorist act. These included: learning how to make improvised explosive devices (‘IEDs’), acquiring the requisite materials to make IEDs; testing IEDs; exploring the possibility of obtaining a firearms licence; obtaining bladed weapons; and undertaking reconnaissance of locations in the Melbourne CBD for a terrorist act.
The nature of the conspiracy involved the doing of preparatory acts in contemplation of mass slaughter to maximize terror, which would be achieved by it occurring in the heart of the city of Melbourne at a time of particular significance to many Australians, that is, at Christmas.[13]
[13]Sentencing Reasons, [48]–[50].
Beale J found that the applicant joined the conspiracy ‘comparatively late’[14] and had been recruited by his brother, Ibrahim. While the applicant was not as active as Chaarani or Mohamed, the judge said he had been involved in three significant events, namely the testing of an IED, the purchase of hydrogen peroxide and the reconnaissance of Federation Square.[15] The applicant’s involvement in these events led the judge to conclude that despite the lesser time he had been involved in the conspiracy (three weeks being ‘a not insignificant period of time’[16] in any event), the nature of that involvement meant that like Chaarani and Mohamed, the offending of Abbas was an upper range example of the offence of doing an act or acts in preparation for or planning a terrorist act.[17]
[14]The applicant joined the conspiracy in early December 2022.
[15]Sentencing Reasons, [42].
[16]Sentencing Reasons, [42].
[17]Sentencing Reasons, [51].
Beale J found the applicant’s moral culpability to be high, but not as high as that of Chaarani, Mohamed and Ibrahim.

Applicant’s contentions

The applicant’s contention of unjustified disparity focuses upon a comparison between the period of imprisonment each of Chaarani, Mohamed and the applicant will serve wholly referable to the Federation Square offending. The reduction in the order for cumulation of the Beale J sentence on the Tinney J sentence from 16 years to 10 years by this Court in Mohamed and in Chaarani is said to mean that the applicant will serve 12 more years imprisonment for the Federation Square offending than either of Chaarani or Mohamed. That is, the applicant will serve 22 years’ imprisonment and each of Mohamed and Chaarani only 10 years’ imprisonment.
With reference to Postiglione v The Queen[18] the applicant submits that where a co‑offender enjoys the benefit of the totality principle it is appropriate to have regard to the actual period each is to serve by reason of his or her commission of the common offence in assessing parity. While that measure is not determinative, disparity is likely to be an indicator that something is askew. The applicant places significant weight on the following passage from Kelly v R,[19] a decision of the New South Wales Court of Criminal Appeal:
A number of cases in this Court have considered the circumstance under consideration here, namely a claim of a lack of parity between a sentence imposed on a co‑offender who was sentenced for multiple offences and received the benefit of the totality principle and another offender who did not, including Bell[20], Tran v Regina[21]; Ayik v Regina[22] and El‑Helou.[23] Consistent with Postiglione in each of these four cases the Court took into “account” the actual gaol time served by each of the offenders solely referable to the common offence. However, the weight attributed to that factor varied, none of the cases considered that it was determinative and in each case, the Court did not engage in a strict mathematical comparison between the time served by the co‑offender that was solely referable to the common offence and the non‑parole period imposed on the applicant for leave to appeal (Bell at [40]; Tran at [24]; Ayik at [33] to [36]; El‑Helou at [30]). Instead, the Court considered all the components of the sentences that were being served including the sentences being served for unrelated offences committed by the co‑offender.[24]
[18](1997) 189 CLR 295 (‘Postiglione’); [1997] HCA 26.
[19][2017] NSWCCA 256 (‘Kelly’).
[20]Citing Bell v R [2008] NSWCCA 206 (‘Bell’).
[21][2006] NSWCCA 266 (‘Tran’).
[22][2013] NSWCCA 119 (‘Ayik’).
[23]Citing El‑Helou v R [2014] NSWCCA 209 (‘El‑Helou’).
[24]Kelly, [33] (Beech‑Jones J).
It is argued that Beale J paid careful attention to the issue of parity when sentencing for the Federation Square offending, observing two distinctions in the objective features of the offending as between the applicant on the one hand and Mohamed and Chaarani on the other, namely the shorter period of his involvement and his lesser moral culpability. Further, Beale J found that the applicant was less radicalised than either Mohamed or Chaarani and, even though the applicant, unlike them, had not renounced IS ideology and violent jihad, his prospects for rehabilitation were reasonable.
The applicant argues that, consequently, the application of the totality principle in the resentencing of Chaarani and Mohamed has now produced a marked disparity in the sentences for the Federation Square offending that gives rise to a justifiable sense of grievance.

Respondent’s contentions

The respondent accepts that an impressionistic view of the 22 year sentence imposed on the applicant for the Federation Square offending in comparison with the ‘effectively 10 years’ imposed on Chaarani and Mohamed for the same offending requires consideration, but argues that the disparity is explicable.
First, this Court in Mohamed and in Chaarani did not, and was not asked to, interfere with the original sentences imposed by Beale J for the Federation Square offending. In Mohamed the Court emphasised that the need to avoid a crushing sentence was ‘a very significant part of the totality analysis’.[25] The same reasoning applied in Chaarani given the similarities between him and Mohamed vis‑à‑vis the seriousness of the offending, their role in it and the factors relevant to an assessment of their prospects of rehabilitation.[26] It is argued that the reduction in the degree of cumulation between the two sentences imposed on Mohamed and Chaarani (and the consequent reduction in the total effective head sentence and imposition of a new non‑parole period) is a ‘vital point of incomparability’ with the sentence imposed on the applicant. The nature of the sentencing error identified in Mohamed and in Chaarani does not inform the sentence imposed on the applicant.[27]
[25]Mohamed, 497 [77] (Maxwell P, Emerton and Sifris JJA).
[26]Chaarani, [28] (Emerton P, Niall and Kaye JJA).
[27]Eakin v R [2020] NSWCCA 294, [58] (Rotham J) (‘Eakin’).
Secondly, with reference to Wood v R,[28] a simple comparison between the sentence imposed on the applicant with the portion of the total effective sentence imposed on each of Mohamed and Chaarani for the Federation Square offending is ‘not sufficient’.[29] A ‘more subtle analysis’[30] considering all components of the sentences is required. The applicant is required to serve 22 years in custody with a non‑parole period of 16 and a half years for the Federation Square offending. Each of Mohamed and Chaarani were ultimately resentenced to serve 32 years imprisonment with a non‑parole period of 24 years. That is a significantly longer sentence reflective of the far more serious nature of their overall offending. That ‘only’ 10 years of the sentence initially imposed upon Mohamed and Chaarani for the Federation Square offending is now required to be served should not be the primary focus of the application. The reduction in the order for cumulation as between the Tinney J and Beale J sentences did not diminish the seriousness of their roles in that offending.
[28][2022] NSWCCA 84 (‘Wood’).
[29]Wood, [46] (Dhanji J).
[30]Ibid.
Thirdly, Beale J considered parity in the sentences imposed on each of the applicant, Mohamed and Chaarani. The judge gave appropriate weight to the limited role of the applicant and his lower moral culpability as well as to the subjective differences between him and his co‑offenders. Importantly, unlike Mohamed and Chaarani, the applicant had not renounced his allegiance to IS and violent jihad. The respondent observes that the applicant does not argue that his sentence for the Federation Square offending was, of itself, manifestly excessive and the head sentence imposed on Mohamed and Chaarani for that offending was not disturbed on appeal.

Discussion and analysis

An appellate court may reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with the sentence imposed on (a) co‑offender(s).[31] A court will do so where it considers that the disparity is such as to give rise to a ‘justifiable sense of grievance’ when assessed by objective criteria.[32]
[31]Green v The Queen (2011) 244 CLR 462, [31] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49; citing Lowe v The Queen (1984) 154 CLR 606, 609–10 (Gibbs CJ); [1984] HCA 46.
[32]Ibid.
As to the principles governing parity, in Kellway v The King[33] this Court said
The purpose of parity in sentencing is to ensure consistency in punishment.[34] As Kaye AJA (as his Honour then was) said in Dawid v Director of Public Prosecutions, ‘the principle of parity is based on the broad principle of equal justice’.[35] Significant disparities in sentences ‘should be capable of a rational explanation’.[36] However, that is not to say that there will be a ‘scientifically precise answer to the quantification of disparities between offenders’.[37] The assessment of the amount of disparity between offenders is ‘[u]ltimately … an evaluation based on impression’.[38]
A ground of appeal complaining about disparity should be approached within the same analytical framework as the ground of manifest excess.[39] As this Court said in Barbaro v The Queen:
[T]he question for consideration is whether it was reasonably open to the sentencing judge to differentiate — or fail to differentiate — between the co‑offenders in the way he/she did, if proper weight were given to the similarities and differences between them as regards culpability, criminal record and personal circumstances.[40]
For an appellate court to intervene on the basis of disparity, the disparity must be ‘“marked” or “manifest” and such as to produce a legitimate and justifiable sense of grievance in the objective observer’.[41] The question whether there is such a sense of grievance depends on whether there were reasonable grounds for differentiation (or lack thereof) between the co‑offenders.[42] As Gaudron, Gummow and Hayne JJ said in Wong v The Queen[43]: ‘Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.’[44]
[33][2023] VSCA 109 (‘Kellway’).
[34]Citing Abdou v The Queen [2015] VSCA 359, [62] (Redlich and Beach JJA, Beale AJA) (‘Abdou’); Green v The Queen (2011) 244 CLR 462, 473 [28] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49; Nipoe v The Queen [2020] VSCA 137, [38] (Maxwell P, Niall and Emerton JJA).
[35][2013] VSCA 64, [43] (Kaye AJA).
[36]R v Tien [1998] VSCA 6, [40] (Tadgell JA).
[37]Ah‑Kau v The Queen [2018] VSCA 296, [51] (McLeish and T Forrest JJA).
[38]Ibid.
[39]Barbaro v The Queen (2012) 226 A Crim R 354, 371 [63] (Maxwell P, Harper JA and T Forrest AJA); [2012] VSCA 288.
[40]Ibid 371–2 [63] (Maxwell P, Harper JA and T Forrest JA).
[41]R v Mercieca [2004] VSCA 170, [17] (Winneke P).
[42]Abdou [2015] VSCA 359, [62] (Redlich and Beach JJA, Beale AJA).
[43]Citing Wong v The Queen (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ) (emphasis in original); [2001] HCA 64.
[44]Kellway, [124]–[126] (Emerton P, Niall and Kaye JJA) (citations in original).

Where one differentiating factor is that a co‑offender received the benefit of the totality principle it is appropriate to compare the actual gaol sentence referable to the common offence, but that alone is not determinative of a finding of disparity. Rather, all components of the relevant sentences must be considered.[45]
[45]Kelly, [33] (Beech‑Jones J).
Applying these principles to the present case it cannot be concluded that the applicant has a justifiable sense of grievance when assessed by objective criteria.
First, the sentences imposed by Beale J on each of the applicant, Mohamed and Chaarani gave appropriate weight to the issue of parity.
Beale J first considered the position of Mohamed and Chaarani compared with Ibrahim, the fourth member of the conspiracy. Ibrahim had pleaded guilty and been sentenced by Tinney J to 24 years’ imprisonment with a non‑parole period of 20 years.[46] The aggravating and mitigating circumstances pertaining to Ibrahim, as found by Tinney J, were noted by Beale J. These included Ibrahim’s enthusiastic participation in the conspiracy as a ‘more or less equal participant’ with Chaarani and Mohamed, his intent to cause ‘maximum death, damage, and fear’ and his recruitment of the applicant[47] as well as ‘modest past cooperation’ and a plea of guilty at the earliest opportunity.[48] Beale J then said that while Mohamed and Chaarani did not get the benefit of a significant discount for having pleaded guilty, each ultimately admitted his guilt and publicly renounced IS and violent jihad at his plea hearing. By so doing each had effectively forfeited his right of appeal against conviction. Beale J found that both Mohamed and Chaarani were ‘genuinely on the path of de‑radicalisation,[49] a factor deserving of a significant discount (albeit less than a plea of guilty would have attracted).[50] Despite his plea of guilty, Tinney J was not prepared to make a finding of de‑radicalisation in relation to Ibrahim.[51] Beale J said that notwithstanding that neither Mohamed nor Chaarani were responsible for recruiting the applicant to the criminal enterprise, each should receive a sentence higher than that imposed on Ibrahim.
[46]Sentencing Reasons, [55]; See R v Ibrahim Abbas [2018] VSC 553. Leave to appeal against sentence was refused. See R v Abbas [2020] VSCA 80.
[47]Sentencing Reasons, [58].
[48]Sentencing Reasons, [59].
[49]Sentencing Reasons, [60].
[50]Sentencing Reasons, [61].
[51]Sentencing Reasons, [60]; Ibrahim Abbas, [145].
Beale J then addressed the applicant in the following terms.
You, Abbas will receive a lesser sentence than your co‑conspirators, including Ibrahim, because you had a much lesser role in the conspiracy. You were only actively involved for a couple of days of the last three weeks of the conspiracy. Whilst you were present for the third trip to Clonbinane, the purchase of hydrogen peroxide from Chemist Warehouse and the reconnaissance of Federation Square, your contribution to the preparations and planning for a terrorist act was, in my view, of limited significance.
But that is not to say it was insignificant. There is strength in numbers. By joining the conspiracy, you increased the chances of the terrorist act occurring and the capacity of the group to cause mayhem when the contemplated terrorist act occurred. And your participation in the conspiracy, since it was spread over three weeks, cannot be described as fleeting.
Throughout the trial and at your plea hearing, your senior counsel, Abbas, tried to portray you as a simpleton who was incapable of standing up to your older brother Ibrahim and therefore as someone who was almost coerced into the conspiracy.
In this regard, your senior counsel relied heavily on Ibrahim’s testimony at your trial, as well as previous representations made by him to the police. Much could be said about Ibrahim’s testimony but, suffice to say, he was a most unimpressive witness, laughable at times, if perjury can be laughable. He told many lies at your trial, just as he did in his recorded police interviews, a point also noted by Tinney J. I would not rely on anything Ibrahim said which tended to diminish your culpability, Abbas, or that of your co‑conspirators, unless there was cogent corroboration.
In your record of interview, Abbas, you described yourself as a ‘fishbrain’, and much was sought to be made of this during your trial by your senior counsel. Similarly, at your plea hearing, your senior counsel said this about you:
Your Honour has sufficient information to … to look at him and say, ‘This is someone who is childish and childlike and ought not to be subject to the sort of condign punishment that is normally imposed on defendants in this context’ …
There were several difficulties with this depiction of you, not least of which was the content of the expert psychological report of Mr Coffey, tendered by your senior counsel. Mr Coffey found that, notwithstanding your struggles at primary school, your intellectual functioning was in the normal range, albeit at the lower end of that range. I note that you passed Year 12.
Mr Coffey also found, based on several conferences with you and information provided from members of your family, that you were quite capable of standing up to your brother.
Whilst I accept your brother recruited you — which was an aggravating circumstance so far as his offending was concerned — I reject the suggestion that you lacked the wherewithal to resist your brother’s entreaties. I also reject the suggestion that you did not understand the seriousness of what you were getting into. Rather, I accept Mr Coffey’s finding that you were ‘fully capable of understanding the nature and the consequences of the acts constituting the elements of the offence’.
The fact that you became a party to a conspiracy to do acts in preparation for a terrorist act which was contemplated to involve the mass slaughter of innocent civilians means that your moral culpability is high, even though it is not as high as the other three.[52]
[52]Sentencing Reasons, [63]–[71] (citations omitted).
Secondly, these findings as to parity between the four co‑conspirators have not been disturbed on appeal. Rather, Mohamed’s appeal was allowed to maximise his prospects of rehabilitation given the judge’s finding that he was ‘genuinely on the path of de‑radicalisation’[53] and, relatedly, to avoid a ‘crushing’ sentence. This Court said:
In our view, the total effective sentence of 38 years would almost inevitably “induce a feeling of hopelessness” in the applicant. The prospect of a prison sentence stretching decades into the future must inevitably affect his incentive for rehabilitation. That is, on any view, a powerful consideration.
That factor would not, of course, justify appellate intervention if a sentence of that length were otherwise necessary to serve the relevant sentencing objectives. But, for the reasons we have given, that is not this case. The judge’s findings about the applicant’s de‑radicalisation and progress towards rehabilitation are very significant, as we explained earlier.[54]
[53]Mohamed, [66]–[70] (Maxwell P, Emerton and Sifris JJA).
[54]Ibid [78]–[79].
In resentencing Chaarani in the same manner and by the same mechanism as Mohamed, this Court said
[t]his reduction in the period of cumulation and the total effective sentence in no way diminishes the seriousness of the applicant’s offending, particularly the Federation Square offending. Had the acts that were planned been carried to fruition, many innocent people would have been killed or seriously maimed.[55]
[55]Chaarani, [30] (Emerton P, Niall and Kaye JJA).
Thirdly, although Beale J found that the applicant had reasonable prospects of rehabilitation[56] that assessment was not based on any progress the applicant had made towards de‑radicalisation.
[56]Sentencing Reasons, [109].
It follows that the reason for the reduction by this Court in the order for cumulation between the Tinney J sentence and the Beale J sentence imposed on each of Mohamed and Chaarani is inapposite to the applicant. Public renunciation of terrorist ideology following conviction of terrorism offences is of quite some significance. The sentencing error in the cumulation of 16 years of the Federation Square offending on the Mosque offending sentence was to create a crushing total effective sentence on young men whose prospects of rehabilitation were largely informed by genuine efforts at, and progress towards, de‑radicalisation. That is an objective matter very relevant to the principle of equal justice.
Fourthly, it should not be overlooked that although only 10 years of the sentences imposed on Mohamed and Chaarani is solely referable to the Federation Square offending, a significant portion of the remaining 26 years of the total effective sentence is also referable to that offending. Further, each of Mohamed and Chaarani is serving a 32 year sentence of imprisonment with a non‑parole period of 24 years in comparison to the applicant’s 22 year sentence with a non‑parole period of 16 and a half years. That is a significant difference which is explicable, objectively, by their greater offending.
It follows that when all of the relevant components of the sentences are considered, the applicant does not have a justifiable sense of grievance when assessed by objective criteria. The proposed ground of appeal cannot succeed.

Conclusion

The application for an extension of time falls to be determined in accordance with the well‑known principles in Madafferi v The Queen.[57] As noted above, the respondent did not oppose the application for an extension of time in which to seek leave to appeal against sentence.

[57][2017] VSCA 302.

The application for an extension of time in which to seek leave to appeal is granted. The application for leave to appeal against sentence is refused.

KIDD JA:

I agree with the reasons of Taylor JA.

[2025] VSCA 116

27 May 2025