AH v R

Case •

[2023] NSWCCA 230

•

15 September 2023

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: AH v R [2023] NSWCCA 230
Hearing dates: 16 August 2023
Decision date: 15 September 2023
Before: Leeming JA; N Adams J; Dhanji J
Decision:

1. Extension of time for bringing this appeal is granted.

2. Leave to appeal is granted.

3. The appeal is allowed.

4. The sentence imposed by the Supreme Court on 22 June 2018 is quashed and in lieu thereof the applicant is sentenced to 7 years and 6 months imprisonment to date from 24 April 2016 and to expire on 23 October 2023, with a non-parole period of 5 years, 7 months and 15 days.

5. Pursuant to s 105A.23 of the Criminal Code Act 1995 (Cth), the applicant is warned that an application may be made for a continuing detention order or an extended supervision order requiring him to be either detained or supervised after the completion of the sentence.

Catchwords:

CRIME – appeals – appeals against sentence – offence of doing an act in preparation for, or planning, a terrorist act – whether sentencing judge erred in determining objective seriousness – large body of material addressing offender’s youth, lack of insight, mental illness, remorse and prospect of rehabilitation – whether error in failing to make findings in respect of offender’s subjective case – whether sentence manifestly excessive – significance for purpose of resentencing of harsher conditions of imprisonment than could have been foreseen – significance of subsequently enacted legislation restricting availability of parole – appeal allowed and offender resentenced

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 15A

Crimes Act 1914 (Cth), ss 3LA, 16A(1), 16(2)(a)(m) 19AG(2), (4A), (4B), 19 ALB

Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Criminal Code Act 1995 (Cth), ss 101.6(1), 11.5(1)

Cases Cited:

Clarke v R [2023] NSWCCA 170

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Elmir v R [2021] NSWCCA 19; 357 FLR 274

Hamzy v Commissioner of Corrective Services NSW (2022) 107 NSWLR 544; [2022] NSWCA 16

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

KT v R [2008] NSWCCA 51; 182 A Crim R 571;

Lee, Matthew v R [2016] NSWCCA 146

Lee v R [2023] NSWCCA 70

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Patel v R [2022] NSWCCA 93; (2022) 366 FLR 314

R v AH [2018] NSWSC 973

R v Alou (No 4) [2018] NSWSC 221

R v Kahar [2016] EWCA Crim 568; [2016] 1 WLR 3156

R v Khaja (No 5) [2018] NSWSC 238

Category:Principal judgment
Parties: AH (Applicant)
Rex (Respondent)
Representation:

Counsel:
Ms G E Lewer and Ms N Evans (Applicant)
Ms P McDonald SC and Mr C Tran (Respondent)

Solicitors:
Legal Aid (NSW) (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2016/125903
Publication restriction:

Statutory non-publication order

Orders made by the Children’s Court of NSW on 2 May 2016 and preserved by the Supreme Court of NSW on 22 June 2018
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Criminal
Citation:

[2018] NSWSC 973

Date of Decision:
22 June 2018
Before:
Latham J
File Number(s):
2016/125903

JUDGMENT

  1. THE COURT: The applicant, who will be referred to by the pseudonym AH by reason of the prohibition in s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), seeks an extension of time within which to seek leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him by the Supreme Court constituted by Latham J on 22 June 2018.

  2. On 24 March 2017, the applicant pleaded guilty in the Children’s Court to one count of doing an act in preparation for, or planning, a terrorist act contrary to ss 101.6(1) and 11.5(1) of the Criminal Code Act 1995 (Cth) (the Code). The maximum penalty for the offence is life imprisonment.

  3. On 22 June 2018, he was sentenced to a term of imprisonment of 12 years with a non-parole period of 9 years. The sentence was backdated to 24 April 2016 and his earliest release date is 23 April 2025. Her Honour ordered that the applicant be detained as a juvenile until he reached 21 years of age.

  4. A Notice of Intention for Leave to Appeal expired in 2019. The Crown did not oppose the grant of the extension of time or the giving of leave to appeal per se; it was submitted that should the Court be satisfied of error then an extension of time and leave should be granted.

  5. The delay was explained in the applicant’s affidavit sworn 26 April 2023 and that of Stephen Eccleshall, his solicitor at Legal Aid NSW, affirmed 26 April 2023. Mr Eccleshall deposed that the applicant instructed him on 25 February 2022 that he had spoken to the law firm which had represented him privately at first instance about appealing. The applicant understood that a Notice of Intention to Appeal had been filed, that his lawyers were seeking documents and they were monitoring a sentence appeal that raised similar issues. Shortly after he was transferred to the High Risk Management Correctional Centre (HRMCC) on 22 December 2020, the applicant had a conversation with his lawyers during which they decided not to pursue a sentence appeal. His lawyers did not obtain advice from counsel regarding the prospects of a successful appeal.

  6. The applicant became interested in appealing his sentence again after he heard in 2022 that it had become virtually impossible for him to obtain parole due to a change in the legislation. This change is discussed further below. It was after that time that he approached Legal Aid NSW.

  7. On 2 March 2022, Mr Eccleshall began obtaining the relevant material to prepare. He briefed counsel on 17 October 2022. The applicant received advice in late March 2023 that counsel had found merit in bringing an appeal.

  8. We are satisfied that an extension of time should be granted, that leave to appeal should be granted, that the appeal should be upheld and that the applicant should be re-sentenced to a lesser term of imprisonment.

Grounds of appeal

  1. The applicant relied on the following four grounds of appeal:

Ground one: The sentencing judge erred in the assessment of the objective seriousness of the offence.

Ground two: The sentencing judge failed to make findings in relation to the applicant’s subjective case.

Ground three: The sentencing judge erred in applying ‘principles applicable to sentencing for terrorism offences’ in an undiscerning way.

Ground four: The sentence imposed is manifestly excessive.

The facts

  1. An agreed statement of facts was before the sentencing judge. Her Honour set out the relevant facts and background at [3]-[22] of her remarks on sentence.

  2. The applicant was born in late 1999.

  3. In May 2015, when the applicant was 15 years old, he came to the attention of the Joint Counter Terrorism Team (JCTT) for accessing violent extremist material online. The JCTT searched his home, alerting his activities to his family for the first time. On 30 June 2015, the JCTT referred the applicant to a diversionary programme administered by the National Disruption Group (NDG) within the Australian Federal Police (AFP). That programme aimed to formulate a plan with the applicant to address his risk of radicalisation and counter violence and extremism.

  4. Members of the NDG met with the applicant and his father on 29 October 2015 to discuss the programme and to “make a plan”. It became clear at that meeting that the applicant had been bullied at two schools and had withdrawn from them both as a result.

  5. In early November 2015, a member of the NDG enquired with the applicant’s father about his progress and recommended that the applicant spend time with his peers. The applicant’s father explained that the applicant was working up to 12 hours a day, six days a week and that the family no longer discussed the conduct and JCTT search.

  6. On 16 November 2015, the applicant and his father toured a gymnasium where membership, boxing and religious mentoring were available. The applicant agreed to participate in the programme. Regrettably, it emerged about one month later that he had not been engaging with it. The stated reason for this was the applicant’s long hours of employment. The applicant’s father later said that he had expected more active and ongoing intervention from the NDG, and the applicant felt abandoned. The NDG on the other hand expected the applicant and his father to take responsibility in this regard.

The offending

  1. In mid-April 2016, when the applicant was 16 years old, he searched for and accessed material online on his mobile phone relating to violent religious extremism.

  2. On 17 April 2016, the applicant used an encrypted online messaging application. He used a pseudonym. He initiated conversations with two individuals, who unbeknownst to him, were overseas online covert officers.

  3. The applicant told them that he was a Muslim Australian who supported the Islamic State, he planned to attack “infidels” at a memorial service on Anzac Day and that he wanted help making a bomb and obtaining a gun. He continued to message them online between 17 April and 24 April 2016. He told them, inter alia, that he did not want to delay, that he had a “set area and date for an attack [Anzac day]” and that he wanted to “terrorize the infidels”.

  4. These covert officers contacted the AFP and an Australian covert officer subsequently made contact with the applicant. The applicant was suspicious about this third contact. As a result, he stopped responding to him, did not attend an arranged meeting and deleted a message about obtaining a gun and making a bomb.

  5. On 24 April 2016, the applicant asked the second covert officer for a bomb-making manual and said he “[did] not have time” to be patient and careful in case he was being monitored. He was arrested by members of JCTT later that same day. He has remained in custody since that date, over seven years ago.

  6. A subsequent examination of the applicant’s phone revealed a photo dated 13 December 2015 of a website with links to social media accounts of Islamic State followers, an account on a social media application with the insignia of Islamic State, a video recording downloaded by the applicant on 19 April 2016 depicting beheadings and executions in the name of religious extremism and other images and recordings in around mid-April 2016 promoting violent religious extremism such as the killing of unbelievers. The JCTT also seized a handwritten note in which the applicant declared his allegiance to sharia law and the Caliphate.

  7. During the applicant’s interview with police on the night of his arrest (in the presence of his father), he said that he was angry and upset about the Australian Government’s involvement in the conflict in Syria; he had researched the Islamic State in 2014 but not since; he was aware of the date and meaning of Anzac Day; no one else used his mobile phone; he sent $50 to the wife of a man charged with sending funds to Islamic State fighters; and he said “consequences would happen” if someone crossed his boundaries relating to religion. He accepted that he wrote the note that was found in his bedroom, he expressed his preference for sharia law instead of democracy and his belief that Australia should have sharia law, but claimed he was willing to abide by Australian law. He provided the password to unlock his mobile phone and usernames for a number of applications on his phone but refused to respond when asked about the application he had been messaging the covert operatives on.

  8. He was charged after the interview and refused bail.

  9. On 6 May 2016, the applicant was served with a court order pursuant to s 3LA of the Crimes Act 1914 (Cth) requiring him to provide members of the JCTT with passwords for a number of applications on his phone. After obtaining legal advice, he supplied a list of possible passwords however could not recall the exact password.

Proceedings on sentence

  1. The proceedings on sentence were conducted on 31 May 2018. A significant amount of material (some 500 pages, excluding submissions) was tendered before the sentencing judge.

  2. The Crown tendered the agreed facts; the Background Report prepared by Juvenile Justice dated 31 May 2018; the affidavit of Michael Vita, Centre Manager at Cobham Juvenile Justice Centre dated 5 March 2018; the affidavit of Dr Anne Martin, Assistant Commissioner of Corrective Services New South Wales, dated 5 March 2018; the affidavit of Philip Hugill, Director of Inmate Classification and Placement at Corrective Services NSW dated 28 May 2018; and the affidavit of Stephanie Scott-Smith, Senior Psychologist, dated 28 May 2018.

  3. The applicant tendered the affidavit of his solicitor, Asem Taleb, dated 30 May 2018 outlining the history of the proceedings and the applicant’s response to orders pursuant to s 3LA of the Crimes Act; a letter from the applicant to the sentencing judge dated 30 May 2018; reference letters from his father, mother, and sister; psychological reports of Sam Borenstein dated 27 April 2016, 17 July 2016, 15 April 2018 and 3 May 2018; a psychological report of Thomas Dornan, approved counsellor at Victims Services, dated 31 January 2018 regarding group therapy work he undertook with the applicant since June 2017 relating to his experiences of violent victimisation (prior to offence); a psychiatric report of Dr Stephen Allnutt dated 25 May 2018; a psychiatric report of Dr Joey Le dated 28 May 2018; and a selection of Juvenile Justice file records.

  4. The applicant gave evidence on sentence.

  5. Significant attention was devoted to the applicant’s youth and mental state in the proceedings on sentence. There was evidence before the Court from four experts that the applicant was suffering a major depressive disorder at the time of the offence, and two experts explained the link between the depressive disorder, the applicant’s experience of bullying, withdrawal, low self-esteem, loss of identity and his susceptibility to extremist views.

  6. Senior counsel for the applicant highlighted the principles in s 6 of the Children (Criminal Proceedings) Act 1987 (NSW). He submitted that the applicant’s age was a significant matter to be taken into account in accordance with s 16A(2)(m) of the Crimes Act and reduced the need for general or specific deterrence. He contended that the applicant should not be considered as an adult of full responsibility given his immaturity, which was relevant to his moral culpability. He relied on the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 by analogy for the statement of how matters impacting an individual’s judgement and ability to appreciate the consequences of their actions are traditionally taken into account in relation to moral culpability.

  7. The applicant’s counsel also submitted that there was already evidence of rehabilitation and de-radicalisation and that the experts did not assess him as currently representing a risk or being likely to represent a real threat to the community because of his rehabilitation.

  8. In written submissions, the applicant submitted that the objective seriousness of the offence fell “towards the lower end of seriousness” having regard to his age, mental condition, the short duration and limited planning and his lack of means to effect a terrorist act.

  9. The Crown (in written submissions) referred to the applicant’s lack of antecedents and contended that it should not be regarded as a significant mitigating factor given the weight to be given to general deterrence and the fact that terrorism offences are frequently committed by those with no prior records. It was also submitted that his youth had limited relevance to the sentencing exercise and was to be viewed in the context of his offending, including the warning he received, his deception and deletion of incriminating messages and his response to the police when he was arrested.

  10. The Crown accepted that there was evidence of rehabilitation in progress but submitted that her Honour could not make a positive finding in respect of the renunciation. The Crown submitted that the applicant’s conduct and accompanying mindset constituted a serious example of this type of crime, based on the persistent online communications he engaged in, the extremist views he held and the planned attack.

Reasons for sentence

  1. The reasons for sentence are available online: R v AH [2018] NSWSC 973.

  2. Under a heading “The Offence” her Honour set out the facts consistent with the summary above from [11]-[22]. Under a heading “The Objective Gravity of the Offence” her Honour assessed the objective seriousness of the offending by reference to the maximum penalty, s 16A(2)(a) of the Crimes Act and the principles applicable to sentencing for terrorism offences summarised by Johnson J in R v Alou (No. 4) [2018] NSWSC 221 at [165]-[171] as follows:

“[165]   The primary considerations on sentence for terrorist offences are the protection of the community, the punishment of the offender, the denunciation of the offending and both specific and general deterrence: R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691 at [92]; Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360 at [274]; R v Khazaal [2009] NSWSC 1015 at [47].

[166]   Subjective circumstances and mitigating factors, including considerations of rehabilitation, are to be given less weight: R v Lodhi at [89]; Lodhi v R at [274]; R v Khazaal at [41]; DPP (Cth) v Besim [2017] VSCA 158 at [112]-[113].

[167]   The religious and ideological motivation of an offender is relevant to the issue of community protection, as well as to the assessment of the objective gravity of the offence: R v Kahar [2016] 1 WLR 3156; [2016] EWCA Crim 568 at [19].

[168]   Where it is not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance: R v Lodhi at [82]-[83], [88]; R v Elomar and Ors (2010) 264 ALR 759; [2010] NSWSC 10 at [93]; Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 at [591].

[169]   Weight must be given to the need for general deterrence even if the force of ideological or religious motivations are such that deterrence may not be effective: R v Lodhi at [91]-[92]; Lodhi v R at [87]-[88]; R v Barot [2007] EWCA Crim 1119 at [45]; DPP (Cth) v Fattal [2013] VSCA 276 at [169]; DPP (Cth) v MHK [2017] VSCA 157 at [52]-[53].

[170]   Whilst youth is relevant to determining the weight to be given to general deterrence and denunciation in the sentencing equation, its weight is diminished quite measurably in terrorist cases where the offender participates in, plans or carries out actions of extreme violence. The protection of society, and the upholding of its most fundamental values, necessitates that in terrorist cases, the sentencing considerations of general deterrence and denunciation must be given primacy above the ameliorating effect of youth: DPP (Cth) v MHK at [66]; R v Khalid and Ors [2017] NSWSC 1365 at [109]-[113], [270].

[171]   In considering the nature and gravity of terrorist offences, courts in Australia have utilised a number of factors referred to by the UK Court of Appeal in R v Kahar [[2016] 1 WLR 3156] at [19]: R v Elomar at [62]; R v Benbrika at [564]; R v Khalid and Ors at [25]. The factors referred to in R v Kahar are:

(a) the degree of planning, research, complexity and sophistication involved, together with the extent of the offender’s commitment to carry out the act(s) of terrorism;

(b) the period of time involved, including the duration of the involvement of the particular offender;

(c) the depth and extent of the radicalisation of the offender as demonstrated (inter alia) by the possession of extremist material and/or the communication of such views to others; and

(d) the extent to which the offender has been responsible, by whatever means, for indoctrinating or attempting to indoctrinate others, and the vulnerability or otherwise of the target(s) of the indoctrination, be it actual or intended.”

  1. Her Honour considered the objective gravity of the offending at [23]-[31].

  2. Her Honour acknowledged the submission on the applicant’s behalf that his online enquiries might be characterised as amateurish as he sought assistance from others rather than searching for bomb making instructions himself online: [25]. She also found that it would be difficult to definitively assert that he had not identified a target and was incapable of an attack, given his communications on 21 April 2016 referenced an identified area for the attack and declared that his training as an electrician qualified him in mechanical matters to some extent.

  3. The sentencing judge noted that the fact that the applicant acted alone was not mitigating. Her Honour observed that the “absence of a factor that may aggravate an offence does not operate to render it less objectively serious”: [26]. Her Honour also highlighted the applicant’s apparent commitment to carry out his plan; while the charged conduct only spanned seven days, the applicant had renewed his online research with the specific purpose of carrying out an attack less than six months after the police search of his home: [27]-[28].

  4. Her Honour accepted that the applicant had renounced his former extremist views after accessing psychological and psychiatric services and religious mentoring since his arrest: [30].

  5. Her Honour concluded her assessment of the objective seriousness of the offence as “above the low end of the range of objective gravity”, noting that the attack was ideologically and religiously driven and chosen for the impact it would have on a significant public holiday: [31]. Her Honour was satisfied that the offence was objectively serious and no penalty other than a substantial term of imprisonment was appropriate: [31].

  6. Still under the heading “The Objective Gravity of the Offence” her Honour went on to briefly consider aspects of the applicant’s subjective case, observing the following at [32]-[34]:

“[32]   The degree to which the offender’s youth ameliorates the weight to be attributed to general deterrence and denunciation is a live issue. The offender’s case is that both youth and the presence of a mental illness, that is, a depressive illness exacerbated by chronic bullying, warrant considerable amelioration: KT v R [2008] NSWCCA 51; 182 A Crim R 571; DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1.

[33]   The offender was aged XXXXX at the time of the offence. There is a wealth of material in the reports of Mr Borenstein, Mr Dornan, Dr Allnutt and Dr Le that the offender was suffering from a major depressive disorder at about the time of the offence. Both Dr Allnutt and Dr Le explain the link between the depressive disorder, triggered by the offender’s experience of bullying, the offender’s withdrawal from his peers and family, diminished self-esteem, a loss of personal identity and his susceptibility to extremist views propagated on social media which validated his sense of victimisation and alienation. The depressive disorder and its sequelae impaired his judgment beyond that which has been recognised as a feature of adolescence.

[34]   In these circumstances, there is some force in the submission that the principles of general deterrence and denunciation play a somewhat lesser role in this sentencing exercise. However, that consideration can only go so far. There is a degree of overlap between the principles that attach to the sentencing of juveniles and the mitigation of a sentence on the grounds of mental illness – both recognise that an offender’s moral culpability may be reduced for substantially the same reasons: De La Rosa at [177]; R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 at [25] – [27].”

  1. Her Honour went on to describe the applicant’s progress in custody and prospects of rehabilitation as “promising”, noting that he had expressed genuine remorse, developed insight into his behaviour, engaged with supports and had renewed faith in the love and support of his family: [35]. The applicant received a discount of 20% for his early plea of guilty: [36]. Her Honour went on to take into account the applicant’s extra curial punishment; at the time of sentence, he had already experienced an assault in custody and was subject to strict classification procedures. Given the applicant was bullied and assaulted because of the nature of his offence, her Honour found special circumstances justifying his detention as a juvenile until the age of 21: [37].

  2. Her Honour then sentenced the applicant at [38]-[40].

Ground 1: Objective seriousness

Applicant’s submissions

  1. The applicant submitted that her Honour’s assessment that the offending fell above the low range was not open and she should have found the offending was in the low range. The following factors were relied on in support: the applicant acted alone; his conduct was amateurish and not sophisticated; the offending spanned seven days; and there was no evidence weapons were acquired, a target was identified or surveillance carried out. It was submitted that the fact that the offence intentionally captures and attaches criminal responsibility to conduct at an early stage of planning did not prevent a conclusion that the offending was in the low range of objective seriousness.

  2. The applicant contended that, unlike in R v Khaja (No 5) [2018] NSWSC 238, the applicant had not made specific plans (other than a proposed date), he had no sadistic intent, and he did not boast about the planned violence being visited on the victims. There was no planning about the mechanics involved such as surveillance, plan for travel or concealing the weapon. He merely exchanged text communications with persons he thought to be involved in the Islamic State and sought assistance for a weapon which was not provided. It was submitted that the only concrete plan he made was the meeting that he did not attend.

  3. The applicant also drew a distinction between his desire to do the attack and his ability to undertake it. It was submitted that his commitment to carry out the acts should be understood through the prism of the person’s subjective experience; he was a 16 year old boy with a mental impairment searching for identity after chronic bullying at two different schools. It was also noted that his propensity to engage in violence was undercut by voluminous evidence tendered about his lack of propensity to violence and him not endorsing violent ideas. This was said to be relevant to the objective seriousness of the offence in light of DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156.

Crown submissions

  1. The Crown submitted that this ground could only be upheld if the sentencing judge’s assessment of objective seriousness was outside the range properly available to her Honour. In relation to the first factor from R v Kahar [2016] EWCA Crim 568; [2016] 1 WLR 3156 (Kahar), it was submitted that there was no challenge to the sentencing judge’s statement that “[t]he depth and the extent of the offender’s radicalisation is considerable”, nor could there be. The Crown’s remaining submissions highlighted the relevance of the factors in Kahar and are considered further below.

Consideration: Ground 1

  1. As R A Hulme AJA (with whom Beech-Jones CJ at CL and McNaughton J agreed) recently observed in Clarke v R [2023] NSWCCA 170 at [69]:

“An appellate court should be ‘very slow’ to set aside a finding in relation to objective seriousness made by a sentencing judge exercising a broadly based discretion. In order for the applicant to succeed, it must be shown that the finding that the offending was ‘within mid-range’ was not open to the sentencing judge (Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ) (‘Mulato’); Lees v R [2019] NSWCCA 65 at [55]; Magro v R [2020] NSWCCA 25 at [31]; Fuller v R [2022] NSWCCA 203 at [80]). As further stated by Simpson J in Mulato at [46]:

‘The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v R [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.’”

  1. The sentencing judge assessed the objective seriousness to be “above the low end of the range of objective gravity”. It is contended that such a finding was not open to her Honour and that a finding should have been made that the objective seriousness was “at the low end of the range of objective gravity”. We have taken the complaint to be that her Honour erred in not making a finding that the objective seriousness was at the bottom of the range. We are satisfied it was open to her Honour not to make such a finding having regard to the factors identified in Kahar.

  2. As the sentencing judge observed, “[t]he depth and the extent of the offender’s radicalisation is considerable”. The agreed facts included a summary of some of the material on the applicant’s phone which advocated for violent extremism. Further, he had written a note in which he declared his support for sharia law to be established worldwide. Further, her Honour also noted, the applicant (initially at least) displayed an “apparent commitment… to carry out the plan”. Again, the agreed facts include messages from the applicant to an undercover operative asking how to make a bomb and seeking a gun.

  3. Although it may be accepted that the applicant’s actions were, as he contended, “amateurish”, he used an encrypted application to ask for help from individuals he believed were associated with Islamic State and could help him. The sentencing judge did not find that the applicant had not identified a target. It is noted that the agreed facts disclose that the applicant sent messages in which he communicated that he had a “set area and date for an attack”, being the “memorial gathering service sort of thing”.

  4. While it may be accepted that the applicant did not actually obtain a weapon, he did express a desire to obtain weapons. He arranged to meet up with an individual who he thought could help him obtain what he needed, although he did not honour that meeting as he became suspicious of that person.

  5. It is an agreed fact that the police could not access applications for which the applicant did not give the passwords and so it was “not possible to ascertain the full extent of the applicant’s radicalisation” and the violent material he possessed. The agreed facts also note that the applicant made statements about his violent intentions such as “if there are ‘muslims’ who are working with the kuffar [infidels] then they deserve to die” and “I want to terrorize [infidels]”.

  6. In assessing where this offence fits in the scale of offences against the provision, it must be kept in mind that the most serious of such offences will still be acts in preparation for or planning a terrorist act, rather than the commission of any completed act. It is also the case that the applicant’s offending was more than fleeting. Rather, it consisted of numerous enquiries made over a period of seven days.

  7. All of those factors tend against this offending being at the bottom of the range. That said, the following countervailing considerations must also be noted. The applicant’s acts did not go beyond the various text exchanges. The identification of a location and the date did not require, and therefore did not establish, any significant level of planning on his part. Given the imminence of the proposed date for the attack and the unlikelihood he would be in a position to carry out any sort of attack within the timeframe that that allowed, the planning smacked of naïveté. The use of an encrypted application for the sending of messages does not involve any great level of sophistication, having regard to the prevalence of such applications, and the unlikelihood of locating anyone prepared to discuss such matters in unencrypted communications. This point is underscored by the fact that, in the course of his encrypted communications, the applicant revealed his Instagram account, which he operated with the same username as that used for the encrypted communications. While the applicant claimed in a text to an undercover operative, to be an “electronic apprentice”, and claimed that as a result “[he] know[s] a bit”, it is far from clear that the applicant’s training as an apprentice electrician provided him with any significant skills with which to advance the planning of a terrorist act.

  8. Ultimately, this ground amounts to the contention that it was not open to the sentencing judge to assess the offending at above the “low range”, and was compelled to assess it as in the “low range”. It cannot be known, however, just what the description “low range” encompassed. The width of the band described as “low range” is not fixed, or capable of being fixed. This creates a difficulty in establishing error in a finding that the offence was “above the low range”. This difficulty has been the subject of comment in numerous judgments of this Court. No attempt was made to attach any meaning, let alone any clear meaning, to “low range”. If the “low range” contemplated, say, the lowest quartile of offending comprehended by doing an act in preparation for, or planning, a terrorist act, then it is clear that the applicant’s conduct fell within that range (for it amounted to online communications with covert officers which were unsophisticated, occupied only a few days, and never eventuated in any meeting or provision of information, let alone any physical action). If the “low range” were narrower, then the conclusion is more contestable. Precision is illusory in any verbal scale of objective seriousness. There is nothing novel in those observations: see for example Lee v R [2023] NSWCCA 70 at [37].

  9. But that is not the only defect attending this proposed ground. As noted above, the applicant’s written submissions before the sentencing judge contended for a finding “towards the lower end of seriousness”. That submission is difficult to distinguish from the finding actually made by her Honour, and is inconsistent with the ground now sought to be advanced.

  10. We are satisfied that although it would have been open to her Honour to have assessed the objective seriousness as being towards the low end of the range, no error is disclosed in the fact that she did not. Her finding was an intrinsically discretionary one and no error has been established in her Honour’s decision in that regard: House v The King (1936) 55 CLR 499; [1936] HCA 40.

  11. We would not uphold ground 1.

Ground 2: The applicant’s subjective case

Applicant’s submissions

  1. The applicant complained that the sentencing judge failed to reference or make findings in relation to three aspects of the applicant’s subjective case:

  1. there was no reference in the remarks on sentence to the applicant’s lack of criminal antecedents or the absence of subsequent reoffending;

  2. there was no reference to the principles set out in s 6 of the Children (Criminal Proceedings) Act; and

  3. her Honour expressed no conclusion as to whether the applicant’s moral culpability was reduced by his youth or mental ill-health.

  1. The applicant contended that her Honour’s failure to address all the key aspects of his subjective case led the sentencing discretion to miscarry. (We note for completeness that a fourth complaint was also relied upon, which, while it was not abandoned, was not developed at the hearing. We are unpersuaded that it is material to any aspect of this appeal, and need not be addressed.)

Crown submissions

  1. The Crown denied that the sentencing judge failed to make those findings.

  2. In relation to the applicant’s antecedents, the Crown acknowledged that this was a mandatory consideration under s 16A(2)(m) of the Crimes Act but submitted that several reasons would satisfy this Court that it was taken into account. This is because there was no issue between the parties that the applicant had no antecedents; both parties acknowledged it was a relevant consideration; the Crown submitted in writing that the significance of this factor in mitigation was diminished, which was not disputed by the applicant; the sentencing judge acknowledged that the applicant was young and had a supportive family; and the fact he was referred to the diversion programme before the criminal conduct was taken into account by the sentencing judge.

  3. It was also submitted that given her Honour’s experience it should not be lightly found that the factor was not taken into account. The Crown contended that the Court should treat the failure to refer expressly to the lack of criminal antecedents as an immaterial error: Lee, Matthew v R [2016] NSWCCA 146.

  4. It was contended that the sentencing judge was plainly aware of the applicant’s age and took that into account.

  5. Finally, in relation to her Honour’s consideration of the applicant’s youth and mental health, the Crown submitted that it was implicit in her remarks that this was taken into account in his favour to some extent.

Consideration: Ground 2

  1. In imposing a sentence of a severity appropriate in all of the circumstances of the offence (s 16A(1) of the Crimes Act), her Honour was required to take into account (if relevant and known to the court) the matters enumerated in s 16A(2). Section 16A(2)(m) of the Crimes Act provides that the sentencing court must take into account (if relevant and known to the court) “the character, antecedents, age, means and physical or mental condition of the person”. This is a mandatory consideration and error will be established if an applicant can establish that a sentencing judge has failed to have regard to one or more of the factors in s 16A(2): see for example Patel v R [2022] NSWCCA 93; (2022) 366 FLR 314 at [52] and [80].

  2. A significant amount of material was put before the sentencing judge relevant to the applicant’s “character, antecedents, age, means and physical or mental condition…”, as summarised above. Despite this, the applicant’s subjective case was summarised in only a few paragraphs at the conclusion of the reasons. Her Honour summarised the reasons under the relevant headings but there was no separate heading for the applicant’s subjective case or how the material relied on by the applicant bore on his moral culpability. Rather, her Honour included her brief summary of the applicant’s subjective case in the last paragraphs of her reasons still under the heading “Objective Gravity of the Offence”.

  3. The first of the three particulars of complaint under this ground is that there was no reference in the remarks on sentence to the applicant’s lack of criminal antecedents or subsequent reoffending. We have considered the Crown submissions summarised above, but we are not satisfied that there is a sufficient basis, reading the reasons as a whole, to infer that her Honour did in fact take this factor into account. The reasons were not delivered ex tempore and the applicant’s prior good character was a relevant factor to the question of, inter alia, rehabilitation. Prior to his interaction with ISIS propaganda, he had never been in contact with police before nor taken any illegal drugs. There was no mention at all by her Honour of his prior good character. This was a mandatory consideration that was not taken into account explicitly, and we are unpersuaded that her Honour did so but omitted to mention it.

  1. The second of the three complaints under this ground is that there was no reference to the principles set out in s 6 of the Children (Criminal Proceedings) Act. The applicant was less than 16½ years old when he committed this offence.

  2. One aspect of this ground which was debated at the hearing concerns the redaction of the applicant’s age in all versions of the published reasons. As extracted above, as part of the statutory obligation not to publish information which identifies the applicant, her Honour redacted his age in two separate paragraphs of her reasons. Her Honour does not appear to have published an unredacted version of her reasons, so it is not possible to know whether her Honour comprehended how young he was at the time of the offending. This concern is not entirely speculative, for Dr Allnutt’s report wrongly stated that he was aged 17 at the time of the offending. It is regrettable that something as important as this is left to speculation, which might readily have been avoided if a confidential unredacted copy of the judgment had been produced. But that is not the gravamen of this ground, and we shall proceed on the basis that her Honour was aware of his young age when imposing sentence.

  3. It was common ground that her Honour made no reference to the principles set out in s 6 of the Children (Criminal Proceedings) Act. Nor did her Honour refer to the relevant principles concerning the sentencing of children. Her attention had been drawn to the following well known passage from KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 in the applicant’s written submissions where McClellan CJ at CL summarised the rationale behind s 6 and set out the relevant principles derived from decisions of this case on this question at [22]-[26] as follows:

“[22]   The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30].

[23]   The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).

[24]   Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135):

‘It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society.’

[25]   The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity (R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in ‘adult behaviour’ (Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.

[26]   The weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A ‘child-offender’ of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne at [27]).”

(Emphasis in original.)

  1. Although her Honour did not refer to s 6 nor to the principles summarised in KT v R, her extract of R v Alou (No. 4) at [170] notes the principle that in terrorist cases general deterrence and denunciation “must be given primacy above the ameliorating effect of youth”. Her Honour also stated at [32] that the degree to which the offender’s youth ameliorates the weight to be attributed to general deterrence and denunciation is “a live issue”. In that same paragraph, she noted the applicant relied on the principles in KT v R and Director of Public Prosecutions (Cth) v De La Rosa as warranting considerable amelioration without stating what they were or making any finding in that regard. Finally, at [34] her Honour noted that there is an overlap between this principle and principles regarding the sentencing of offenders with a mental health issue.

  2. Notwithstanding that her Honour spent very little time considering the relevant principles governing the sentencing of children, on balance, it could not be said that she overlooked them completely. The difficulty with her Honour’s consideration of this significant aspect of the applicant’s case is that it is not clear that her Honour made any finding as to the degree to which the applicant’s youth ameliorated the weight to be attributed to general deterrence and denunciation.

  3. The third complaint is that her Honour expressed no conclusion as to whether the applicant’s moral culpability was reduced by his youth or mental ill-health. As her Honour noted at [33], there was a “wealth” of expert evidence that the applicant was suffering from a major depressive disorder at about the time of the offence. Although her Honour noted at [32] the applicant’s submission that the applicant’s youth and mental illness “warrant considerable amelioration”, we are satisfied that she ultimately made no finding in relation to that submission beyond observing that it was a “live issue”: at [32]. Her Honour accepted that the applicant was suffering from a major depressive illness at the relevant time and also appears to have accepted the expert evidence that the applicant’s depressive disorder and its sequelae impaired his judgement beyond that which had been recognised as a feature of adolescence: at [33].

  4. Her Honour noted at [34] that there was “some force” in the submission that the principles of general deterrence and denunciation play a “somewhat lesser role” in this sentencing exercise but then observed, “that consideration can only go so far”. Her Honour went on observe, correctly, that both the principles regarding the sentencing of juveniles and those with a mental illness recognise that “an offender’s moral culpability may be reduced for substantially the same reasons”. But she did not go on to state whether she had made any such finding in the applicant’s case.

  5. We are satisfied that her Honour failed to make any finding as to whether and, if so, to what degree the applicant’s moral culpability was reduced by his youth and/or mental illness.

  6. The position may be summarised as follows. The sentencing judge was faced with a difficult task. Inevitably a lengthy custodial sentence was going to be imposed upon an 18 year old for offending two years earlier. Her Honour had a mass of evidence on the subjective aspects of his offending. That evidence spoke to his youth and his prior good character and the causes of his offending. It included detailed opinion evidence based on a much more intensive examination of his behaviour than is usual, because the applicant had spent more than two years in juvenile detention. That volume of material, and 56 pages of written submissions, and a hearing which occupies 58 pages of transcript, was compressed into less than two pages (paragraphs [32]-[37]) of an already short judgment. As explained above in more detail, the sentencing judge failed to have explicit regard to mandatory considerations of the applicant’s prior good character and whether his moral culpability was reduced by his youth and his mental illness, and we are unpersuaded that consideration of those matters may be implied. We are strengthened in that conclusion by the sentence in fact imposed.

  7. We are satisfied that ground 2 should be upheld.

Re-sentence

  1. Since error has been found in relation to ground 2, the Court is required to exercise its own independent sentencing discretion for the purpose of determining whether a lesser sentence should be imposed under s 6(3) of the Criminal Appeal Act 1912 : Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43]. In light of the need to re-sentence, it is not necessary to consider ground 3. Ground 3 contended that the sentencing judge merely cited Johnson J’s summary of the relevant principles in R v Alou (No. 4) and failed to properly consider their application to the instant case, submitting the Court would find that her Honour applied them in an “undiscerning and erroneous way”: Elmir v R [2021] NSWCCA 19; 357 FLR 274. It is not necessary to consider this as it does not impact on the re-sentencing exercise.

  2. As for ground 4, whether the sentence was manifestly excessive only arises if the other grounds were not made out, but it is necessary to have regard to the submissions made in relation to it when resentencing. As indicated during the hearing, we are unpersuaded that the sentence imposed was within the range. This was reflected in the following exchange:

“MCDONALD: … [I]n our submission the starting point of 15 before the discount on sentence is an appropriate starting point given all those factors.

LEEMING JA: So what I’m really workshopping is if that is right then a mid-range objective gravity for a 16 year old … would be something higher than an undiscounted starting point of 15. What’s that, 20? Then for a high range objective seriousness from a child we start with an undiscounted starting point of 25 years? What I’m really saying is if what you say is right it’s really hard to fit in a range.

ADAMS J: Especially in circumstances where it’s unusual to have someone that has completely renounced their radical beliefs by the time of sentence. He had a very strong subjective case compared with a lot of the others where there’s been recalcitrance and that approach wasn’t taken. So it’s not just the objective seriousness, he had a pretty strong subjective case.

MCDONALD: Which in our submission her Honour took into account. She is quite clear that--

ADAMS J: But I think that’s the presiding judge’s question, that if she did take that into account and if she did make the finding of objective seriousness what would have been the result? I mean, it’s quite a concertinaed range then if things were more serious.

MCDONALD: Well, your Honours, it’s difficult but the suggestion that your Honour made of if you then actually - if you’ve got low range and then just above the low end is 15 then mid-range, the top of mid-range you may be looking at 20 and then higher range, as your Honour indicated, it may start at 25 or may be higher, 30.

LEEMING JA: Then you’ve got to have room for those who don’t have very good subjective cases.

ADAMS J: And are older and have criminal histories.

LEEMING JA: That’s the problem I have.”

  1. If an undiscounted starting point of 15 years imprisonment is not manifestly excessive for offending above the “low range” of objective gravity, committed by a 16 year old boy of good character with good prospects of reform and suffering from mental illness, what would the undiscounted starting point be for offending at the middle of the range by an offender with similar subjective characteristics? Would it be 17 or 18 or 20 years? What if the offender were an adult, or had relevant criminal antecedents, or not suffering from mental illness, or lacked the highly favourable and unusual findings of contrition and genuine remorse? To our minds, there is simply not enough room on the scale for readily foreseeable offending which is considerably more culpable than the applicant’s offending, if 15 years imprisonment for this offending by this teenage boy is within the range. It follows that we do not accept the Crown’s submission that no lesser sentence is warranted in this case given the seriousness of the offending and the principles governing the sentencing of terrorism offenders.

  2. In re-sentencing the applicant, we are required to impose a sentence of a severity appropriate in all of the circumstances of the offence (s 16A(1) of the Crimes Act) and to take into account (if relevant and known to the Court) the matters enumerated in s 16A(2).

  3. In imposing sentence, the starting point is the guidepost provided by the maximum penalty of life imprisonment. Given the maximum penalty, the offence is necessarily serious.

  4. We have addressed the objective seriousness of the offence above. For those reasons, we would assess the offending as being at the low end of the range.

  5. The applicant relied on his affidavit of 25 July 2023, which was read without objection in the event of re-sentence. He deposed that he has continued to connect with his family, psychologists and religious mentors in custody. He has received excellent reports about his behaviour. In juvenile custody he participated in mentoring, psychological counselling, an intensive intervention programme for 18 months and a horticulture programme where he was trusted to use certain equipment. He reached the lowest security classification and only received one minor misbehaviour in 2019.

  6. Despite the observation of Dr Le in his report before the sentencing judge that the applicant should not be housed with other terrorism offenders, that is precisely what occurred on his transfer to adult detention on turning 21 in late 2020; he was transferred to the highest security area of the HRMCC. The applicant explained that he felt disappointed about this as he had hoped he would be placed elsewhere given his good behaviour and progress and felt it was a setback in his rehabilitation and progress to parole.

  7. Whilst at the HRMCC he was handcuffed whenever he was outside his cell and double handcuffed and shackled whenever he was outside his unit. He described his small cell and the lack of direct light in the yard as it is filtered by a mesh metal grill. He was also locked in his cell for 24 hours a day during lockdowns for just under 20 percent of the days he was there. The applicant was transferred to a lower security area but still within the HRMCC in January 2021. This meant that he was allowed to leave his cell once or twice a week to attend programmes and to attend a common room with two to four other approved inmates. He was unable to work or do further study at the HRMCC and felt bored and restless. He explained that he contracted Covid-19 in July 2022, which was a “frightening experience”. It spread through the area and the inmates were locked in their cells for 13 days straight.

  8. The applicant explained that he received a few non-contact visits from his family while at the HRMCC, but he found it hard to communicate with them through the thick glass and struggled not being able to hold their hands or hug them. He called his family regularly over the phone and AVL.

  9. After some 20 months at the HRMCC, the applicant was transferred to Hunter Correctional Centre which he saw as a big improvement. He described breathing more easily, seeing the sun and sky again, walking around the centre and not being shackled for routine movements. He now works in the café in a senior, trusted position as a clerk. He is doing the Tertiary Preparation Program and is interested in studying for a Business or Youth Work degree. He has been meeting with a Services Programs Officer and a psychologist since late September 2022 who are helping him plan for his future activities.

  10. While in adult custody the applicant has completed a number of programmes and courses, including the EQUIPS Addiction programme (in relation to his addiction to social media), the Information, Digital Media and Technology course, the Real Understanding of Self-Help programme, a Food Safety course, the Certificate III Business course and a Quran recitation programme run by a Muslim Chaplain.

  11. In early July 2023, the applicant’s security classification was reduced from A2 (maximum security) to B (medium security). He was advised by Mr Eccleshall that the Commonwealth Attorney General requires inmates serving sentences for terrorism offences to have taken part in programmes as a C3 classification inmate in order to qualify for parole. The applicant explained that it is difficult for him to come to terms with the reality that he will not be granted parole given the change in the law (as to which see below) but is determined to keep working on his rehabilitation. He now has a mentor in the community.

  12. Annexed to Mr Eccleshall’s affidavit of 26 July 2023, which was also read without objection against the possibility that this Court would resentence, were two reports of the Inspector of Custodial Services titled “The management of radicalised inmates in NSW” in 2018 and “Goulburn Correctional Centre and the High Risk Management Correctional Centre” in 2022. It was noted that the applicant was managed according to Extreme High Security protocols.

  13. In the 2018 report, the Inspector set out the fundamental principle that inmates should be subject to the least restrictive environment necessary for the protection of the public, staff and other inmates. She explained the impact of the security classifications upon inmates’ access to independent complaint mechanisms, family and legal visits, confidential legal communications and privilege, preparations for trial and the right to speak languages other than English. In her 2022 report, she expressed concern about the policy and practice of “dropping in” on legal phone calls, which were the subject of a recommendation from a previous inspection and were held to be unauthorised in Hamzy v Commissioner of Corrective Services NSW (2022) 107 NSWLR 544; [2022] NSWCA 16. The Inspector also observed that there were limited opportunities for positive engagement with staff and no access to programmes, work or education in the HRMCC. She found that there was a reluctance of staff to engage with inmates and a conception among them of the HRMCC as being solely concerned with containment and security. She also raised problems with discriminatory staff and a tendency amongst staff to confuse practice of Islamic faith with radicalisation.

  1. Mr Eccleshall also annexed images of the cells and described the 2.5 metre x 4 metre cells. There is no access to fresh air (unless the door to the adjoining rear yard is open) and the mesh ceiling obscures the sky. In the Inspector’s 2022 report, she noted that exceptional lockdowns occurred 34% of the time that she was there, noting that they were mostly caused by “unplanned staff absences” (only one was triggered by a security incident). She also observed that inmates were generally allowed outside their cell for certain activities between 8.45am-9am and 2pm, rather than the “normal” hours of 8.30am and 2.30pm.

  2. Mr Eccleshall also annexed the report of a Maggie Cruikshank, a Corrective Services psychologist who met with the applicant in the first half of 2021. She noted that the applicant had resiled from his ideology by the time of sentencing.

  3. In addition to this more recent material on sentence, we have had regard to the expert evidence that was before the sentencing judge including four reports of psychologist Mr Borenstein dated 27 April 2016, 17 July 2016, 15 April 2018 and 3 May 2018, the reports of psychologist Mr Dornan dated 31 January 2018, psychiatrist Dr Allnutt dated 25 May 2018, psychiatrist Dr Le dated 28 May 2018 and a Juvenile Justice background report and files.

  4. Other than Mr Dornan, the three experts described the applicant as a 16 year old boy that had been bullied at two different high schools (the bullies coincidentally transferred to his second school after he moved to get away) with low self-esteem who experienced a newfound belonging to the “brotherhood” after finding ISIS propaganda material online. Dr Allnutt observed that the applicant accepted the extremist beliefs through a “process akin to grooming”. When the applicant left school in year 10 and did an apprenticeship, he had no history of violence and not used any alcohol or drugs.

  5. In his report in April 2016, Mr Borenstein opined that the applicant suffered severe depression and severe symptoms of anxiety, which was exacerbated by the effects of being bullied, the raid and media attention upon the case. He also emphasised the negative impact the applicant’s incarceration would have on his mental health. His report in July 2016 noted that the applicant’s depression and anxiety had worsened and that he was assaulted and regularly taunted because of the nature of his offending. Mr Borenstein opined that the applicant’s decision-making capacity during the period of the offending was significantly compromised due to his “adolescent brain”, and that his social isolation and bullying is relevant in appreciating his behavioural choices.

  6. Dr Le also explained that the applicant would not have had the capacity to assess the material through the lens of a reasonable adult and was exceptionally vulnerable to propagandistic material. His developmentally appropriate longing for acceptance and belonging impaired his ability to form judgements about right and wrong. He warned that the applicant remained impressionable and any endorsement of his offending by other inmates with sympathetic views towards the Islamic State may be regressive.

  7. Dr Allnutt also assessed the applicant as having symptoms consistent with a depressive order at the time of the offending. When speaking with Dr Allnutt in May 2018, the applicant denied any ongoing identification with ISIS and said that there was “nothing right about ISIS, I went wrong by acting with emotion… at the time it was anger at the air strikes”. He felt like a “puppet” that was fed information and used.

  8. The applicant’s positive engagement with mentors in custody is clear from the reports. He told Mr Borenstein that he was introduced to a Sheik who properly instructs him on the moral values of Islamic faith, and he told Dr Allnutt and Dr Le that his religious mentor was helping him understand emotions and decision-making.

  9. Mr Dornan was of the view that the applicant had shown increasing insight into his circumstances and credited him for refusing to use past violent experiences as an excuse for his behaviour.

  10. A Juvenile Justice report in August 2016 recorded that the applicant interacted positively with staff and in educational and recreational programmes however presented with a flat mood. He was assaulted in June 2016 by five inmates in what appeared to be a planned attack.

  11. Turning to the relevant submissions on re-sentence, the applicant submitted that a number of factors support the imposition of a lesser sentence in this matter including the applicant’s age, the evidence of his immaturity, his depressive illness (and history of bullying which had a nexus with the offending), his lack of other criminal history, his demonstrated rehabilitation by the time of sentence, his remorse and contrition, his prospects of rehabilitation and the onerousness and counterproductive nature of continuing adult custody.

  12. Although not a separate ground of appeal, the applicant submitted that he should be afforded a discount of 25% for pleading guilty in the Children’s Court, as opposed to 20% as afforded by the sentencing judge. The Crown submitted that a discount of 20% was appropriate as the plea came seven months after the brief of evidence was completed and four months after a s 91 timetable was fixed. Given that the applicant pleaded guilty in the Children’s Court after he was able to receive legal advice in the context of a complete brief of evidence, we are satisfied that it is appropriate to apply a discount of 25% to the sentence we would propose on re-sentence.

  13. Further, the applicant submitted that his experience of custody has been more onerous because of the more than 20 months he spent in the HRMCC. The Crown accepted that this was a relevant factor to take into account and we propose to do so. It is difficult to understand why an offender such as the applicant, who had disavowed all his previously held views and demonstrated such excellent rehabilitation in juvenile detention over a period of more than four years would be housed, contrary to the expert evidence, along with other terrorism offenders once he reached the age of 21 years.

  14. The applicant also relied, initially, on the introduction of s 19ALB of the Crimes Act effective from 12 December 2019 as a relevant factor on re-sentence. It provides as follows:

Decisions about parole orders--terrorism and control orders

(1) Despite any law of the Commonwealth, the Attorney-General must not make a parole order in relation to a person covered by subsection (2) unless the Attorney-General is satisfied that exceptional circumstances exist to justify making a parole order.

(2) This subsection covers the following persons:

(a) a person who has been convicted of a terrorism offence, including a person currently serving a sentence for a terrorism offence;

  1. Section 19ALB was enacted after the applicant was sentenced but applies to him. Mr Eccleshall annexed to his affidavit affirmed on 26 July 2023 the response to his Freedom of Information request from the Commonwealth Attorney General’s Department that stated that of the 53 applicants serving sentences for terrorism offences who applied for parole between 1 January 2018 and 11 November 2022, all 53 were refused parole. As stated above, it was that fact which led the applicant to belatedly explore the possibility of appealing the length of his sentence. The applicant deposed that he felt depressed and upset when he heard about the offenders in the HRMCC being denied parole as he understood that if he continued his efforts towards rehabilitation he would be released into the community on parole.

  2. Following the grant of leave to counsel at the hearing to provide notes as to the significance of this amendment, it was conceded on behalf of the applicant that the effect of s 19ALB did not directly relate to the exercise of the sentencing discretion but to the potential grant of parole. We accept that to be the case, although the utility of including a non-parole period in such cases may be queried, if for all practical purposes, no offender will be released on parole.

  3. A further change in the relevant statutory scheme was to s 19AG of the Crimes Act. At the conclusion of the hearing, the Court granted leave for the applicant to file a note concerning this amendment as well. At the time the applicant was sentenced, s 19AG of the Crimes Act mandated that when sentencing an offender for, inter alia, a terrorism offence, the court was required to fix a single non-parole period of at least 75% of the head sentence: s 19AG(2). There was no exception in the case of juvenile offenders. Amendments to s 19AG came into effect on 12 December 2019 with the insertion of subss (4A) and (4B) which are in these terms:

(4A) In imposing a sentence for an offence covered by this section on a person who is under 18 years of age, the court must comply with subsection (2) unless the court is satisfied that exceptional circumstances exist to justify fixing a shorter single non-parole period.

(4B) In determining whether exceptional circumstances exist to justify fixing a shorter single non-parole period in relation to the person, without limiting the matters the court may have regard to, the court must have regard to:

(a) the protection of the community as the paramount consideration;

(b) the best interests of the person as a primary consideration.

  1. The parties agreed that s 19AG(4A) does not apply to the re-sentencing of the applicant as he is no longer “under 18 years of age”. We accept that to be the case. The provision uses the present tense as does s 6(3) of the Criminal Appeal Act. The applicant is to be re-sentenced as of today’s date.

  2. Turning to the particular features of the applicant, we regard his moral culpability to be reduced as a result of the combination of his youth and his mental condition, particularly given the manner in which they fuelled his desire for acceptance and belonging creating a particular vulnerability to extremist ideology. Those matters, together with his lack of record, the lack of subsequent offending and, most significantly, his renunciation of extremist views, provided him with a very strong subjective case. That case is even stronger on resentence. The applicant’s renunciation has, in effect, been confirmed over a period of some years, during which time he has had the opportunity to mature. Whilst we acknowledge the difficulties faced by those tasked with the job of managing prisons, it is very difficult to understand how it could be that having reached the lowest available security classification in juvenile detention, it could have been warranted, on his transfer to adult gaol, to house him in the HRMCC to be managed according to Extreme High Security protocols. It is to the applicant’s credit that he has overcome this setback and made the progress referred to above. Further, apart from the manner in which the applicant’s experience in custody may have tested his resolve, it is necessary to have regard to the onerousness of the conditions the applicant has experienced.

  3. It was accepted on appeal that the principles to be applied in sentencing for offences such as the present are those set out by Johnson J in R v Alou (No. 4) [2018] NSWSC 221 at [165]-[171] and are reproduced above. While the protection of the community, as observed by Johnson J (at [165]), is a primary consideration, in the circumstances of the present case, we do not regard this consideration as significantly impacting the weight to be given to the applicant’s subjective case. As has often been said, the protection of the community is advanced by the rehabilitation of offenders. This observation has particular resonance in the context of the applicant having regard to his youth, mental illness, and demonstrated progress towards rehabilitation. The same applies to specific deterrence. Denunciation and general deterrence, also referenced by Johnson J at [165], however, remain important considerations.

  4. On resentence, we regard a starting point of 10 years as appropriate. We would allow a discount of 25% referable to the applicant’s willingness to facilitate the course of justice and the utilitarian value of the plea. We would resentence the applicant to imprisonment for sentence of 7 years and 6 months to commence on 24 April 2016. We would set a non-parole period of 5 years, 7 months and 15 days which is 75% of the head sentence.

  5. In determining that sentence, we have identified and considered all factors relevant to the sentence and ultimately made a value judgement as to what is the appropriate sentence given all the factors in the case: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] per McHugh J; confirmed in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]. We have had regard to the relevant sentencing principles pertaining to terrorism offences in R v Alou (No. 4), although we would respectfully endorse what was said by this Court in Elmir v R at [37] cautioning against the undiscriminating application of principles said to apply in any particular “kind of case” or for particular kinds of offence:

“… the correct approach (termed ‘instinctive synthesis’) is ‘the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case’. Principles developed judicially may be helpful in giving more concrete guidance in relation to particular kinds of offence but the ultimate task is to determine the factors that are relevant to the sentence to be imposed in the individual case.”

  1. The sentence we would impose is significantly less than that imposed by the sentencing judge. A range of factors combine to bring that about, including his prior good character, the period at the HRMCC, serving the sentence during Covid-19 and his rehabilitation in custody. Significantly, we have found that his moral culpability is reduced due to both his mental illness, which had a causative impact on his offending, and his youth. Unlike the sentencing judge, this Court has the benefit of evidence of the applicant’s circumstances while in custody and his conduct in custody over the last five years, which have been harsher than could have been contemplated by her Honour, but which nonetheless support the same highly positive findings of remorse and rehabilitation.

  2. We are also conscious that, principally because of the five year delay in bringing this appeal, the effect of the sentence we have imposed (which will expire in around six weeks) is that it will be difficult or impossible for the applicant to apply for parole before the expiration of the term. However, the evidence suggests that, despite his apparent suitability, parole would not be granted to the applicant, just as it has not been granted to any of the 53 applicants serving sentences for terrorism offences. The inevitable consequence of that policy is that such offenders will complete their sentences without the benefit of supervision under parole.

  3. Finally, in light of the parties’ request for confidentiality in respect of one aspect of this appeal, the Court indicated at the conclusion of the hearing that it would provide a copy of its reasons to the parties before publishing it on Caselaw. We have followed that course. However, our present view is that nothing in these reasons contravenes any statutory non-publication order or any properly based claim for suppression or non-publication, and unless application is received by 4pm Monday 18 September 2023 we propose to publish the reasons. Both sides are free to confirm prior to that time that the reasons may be published in unredacted form. Any communications should in the first instance be by email to Justice Leeming’s Associate.

Orders

  1. Accordingly, we make the following orders:

  1. Extension of time for bringing this appeal is granted.

  2. Leave to appeal is granted.

  3. The appeal is allowed.

  4. The sentence imposed by the Supreme Court on 22 June 2018 is quashed and in lieu thereof the applicant is sentenced to 7 years and 6 months imprisonment to date from 24 April 2016 and to expire on 23 October 2023, with a non-parole period of 5 years, 7 months and 15 days.

  5. Pursuant to s 105A.23 of the Criminal Code Act 1995 (Cth), the applicant is warned that an application may be made for a continuing detention order or an extended supervision order requiring him to be either detained or supervised after the completion of the sentence.

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Decision last updated: 18 September 2023

Most Recent Citation
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Cases Cited

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Statutory Material Cited

4

Clarke v R [2023] NSWCCA 170
DPP (Cth) v De La Rosa [2010] NSWCCA 194
R v Hoar [1981] HCA 67