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
Counsel: Ms G E Lewer and Ms N Evans (Applicant) Ms…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
AH v R [2023] NSWCCA 230
Case
[2023] NSWCCA 230
Decision Date
CaseChat Overview and Summary
In the case of AH v R, the appellant was convicted of planning a terrorist act. The appeal before the Court was against the sentence imposed for this offence. The Court of Appeal was tasked with determining whether the sentencing judge had erred in assessing the objective seriousness of the crime, considering the extensive material presented regarding the offender's youth, lack of insight, mental illness, remorse, and potential for rehabilitation. Additionally, the court examined whether the sentencing judge had failed to make appropriate findings concerning the offender's subjective circumstances and if the sentence was manifestly excessive.
The Court of Appeal meticulously reviewed the sentencing judge's approach to the various mitigating factors presented. The court held that the sentencing judge had indeed erred in not adequately considering the substantial body of evidence related to the offender's personal circumstances. Furthermore, the court found that the sentence was excessively harsh, taking into account the unique and unforeseen conditions of imprisonment that would apply during the offender's incarceration. The court also acknowledged the impact of subsequent legislative changes that restricted parole availability, which the original sentencing judge could not have foreseen.
Upon finding errors in the original sentencing process, the Court of Appeal allowed the appeal and resentenced the offender. The new sentence took into account the factors that had not been adequately considered in the original proceedings, ensuring a more balanced and appropriate outcome in light of the comprehensive evidence presented. The Court of Appeal's decision emphasised the importance of thorough consideration of both objective and subjective factors in sentencing, particularly in cases involving complex personal circumstances and evolving legislative landscapes.