Al Maouie v The The Queen - [2022] NSWCCA 30

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Al Maouie v R [2022] NSWCCA 30
Hearing dates: 09 February 2022
Date of orders: 07 March 2022
Decision date: 07 March 2022
Before: Payne JA at [1]
Rothman J at [2]
Harrison J at [5]
Decision:
(1) Pursuant to s 10(1)(b) of the Criminal Appeal Act 1912, extend the time for the filing of the applicant’s notice of appeal to 17 September 2021.
(2)  Grant leave to appeal against sentence.
(3)  Allow the appeal against sentence.
(4)  Quash the sentence imposed upon the applicant by Bellew J on 3 November 2017 and in lieu thereof sentence the applicant to imprisonment for 8 years comprising a non-parole period of 6 years commencing on 23 December 2015 and expiring on 22 December 2021 with a balance of term of 2 years expiring on 22 December 2023.
(5) Pursuant to s 105A.23 of the Criminal Code, the applicant is warned that an application may be made for a continuing detention order requiring him to be detained after the completion of his sentence.

Catchwords:
CRIMINAL LAW – appeal – appeal against sentence – making documents connected with preparation for a terrorist act – whether sentencing judge erred in failing to have regard to the utilitarian value of the plea of guilty – need independently to re-exercise the sentencing discretion

Legislation Cited:
Crimes Act 1914 (Cth), ss 3, 16A(2)(g), 19AG, 19ALB
Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 10(1)(b)
Criminal Code Act 1995 (Cth), ss 11.5, 101.5(1), 101.6(1), 105C

Cases Cited:
Bae v R [2020] NSWCCA 35
Ghazzawy v R (Cth) [2021] NSWCCA 70
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73
Quinlan v R [2021] NSWCCA 21
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Durocher-Yvon (2003) 58 NSWLR 581; [2003] NSWCCA 299
R v FarhadQaumi [2017] NSWSC 774
Said v R [2019] NSWCCA 239
Xiao v R [2018] NSWCCA 4

Category: Principal judgment
Parties: Mohamed Al Maouie (Applicant)
Crown (Respondent)
Representation:
Counsel:
T Anderson SC (Applicant)
B Power (Respondent)
Solicitors:
Legal Aid (NSW) (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2015/376727
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2017] NSWSC 1365

Date of Decision:

3 November 2017

Before:

Bellew J

File Number(s):

2015/376727

Judgment

PAYNE JA: I agree with Harrison J.
ROTHMAN J: I agree with orders proposed by Harrison J and generally with his Honour’s reasons. Apart from that which follows, I agree fully with his Honour’s reasons.
I do not consider that the words used by the applicant are incomprehensible. Nor do I accept, when dealing with a document compiled by a number of persons, that the words used by one of them should be read otherwise than in the context of the document as a whole,…

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

Case: [2022] NSWCCA 30
Decision Date: 07 March 2022

CaseChat Overview and Summary

The appellant, Al Maouie, was convicted of making documents connected with the preparation for a terrorist act. The appeal focused on the sentence imposed, arguing that the sentencing judge failed to appropriately consider the utilitarian value of Al Maouie's guilty plea. The High Court of Australia was called upon to determine whether the sentencing judge erred in this regard and if the court should independently re-exercise its sentencing discretion.

The court examined the principles surrounding the consideration of a guilty plea in sentencing. It acknowledged that a guilty plea can have significant utilitarian value, such as reducing the cost of trials and conserving judicial resources. The court found that while the sentencing judge acknowledged the appellant's guilty plea, there was an insufficient exploration of the utilitarian benefits. The court concluded that the failure to adequately consider these benefits amounted to an error in the sentencing process.

In light of the identified error, the court exercised its discretion to independently re-evaluate the sentence. The court found that the original sentence did not fully reflect the utilitarian value of the appellant's guilty plea. Consequently, the court varied the sentence to better align with the principles of sentencing and the recognised benefits of a guilty plea.

The High Court reduced the sentence imposed on Al Maouie, reflecting the need for proper consideration of the utilitarian value of his plea. The revised sentence was deemed more appropriate in light of the court's independent re-exercise of its sentencing discretion.

Orders