Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Almaouie v R [2021] NSWCCA 274 Hearing dates: 6 September 2021 Date of orders: 19 November 2021 Decision date: 19 November 2021 Before: Beech-Jones CJ at CL at [1]
R A Hulme J at [32]
Wilson J at [33]Decision: (1) Extend the time in which the applicant may apply for leave to appeal against his sentence up to and including 7 May 2021;
(2) Allow the appeal;
(3) Set aside the sentence imposed on the applicant on 3 November 2017 for the offence of conspiring to do acts in preparation of a terrorist act contrary to ss 11.5 and 101.6(1) of the Criminal Code 1995 (Cth);
(4) In lieu thereof:
(a) For the offence of conspiring to do acts in preparation of a terrorist act, sentence the applicant to imprisonment for a period of 16 years and 6 months commencing on 10 December 2015 and expiring on 9 June 2032;
(b) Specify a non-parole period for the offence of conspiring to do acts in preparation of a terrorist act of 12 years and 6 months commencing on 10 December 2015 and expiring on 9 June 2028;
(c) Note that the total sentence imposed on the applicant commenced on 18 December 2014 and will expire on 9 June 2032 and the applicant will be first eligible for release on parole on 9 June 2028;
(d) Pursuant to s 105C of the Criminal Code 1995 (Cth) warn the applicant that an application may be made for a continuing detention order requiring him to be detained after the completion of his sentence.
Catchwords: SENTENCING – terrorist offence – utilitarian value of plea for federal offence – Xiao error – applicant re-sentenced
Legislation Cited: Counter-Terrorism Legislation Amendment (2019 Measures No 1) Act 2019
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Code 1995 (Cth)
Firearms Act 1996
Cases Cited: Faheem Khalid Lodhi v Regina [2007] NSWCCA 360; (2007) 179 A Crim R 470
Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
R v Sulayman Khalid; R v JibrylAlmaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365
Category: Principal judgment Parties: Jibryl Almaouie (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
TD Anderson (Applicant)
BJ Power (Crown)
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Crown)
File Number(s): 2014/376663; 2015/362992 Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Criminal
- Citation:
R v Sulayman Khalid; R v JibrylAlmaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365
- Date of…
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- Almaouie v R [2021] NSWCCA 274
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- [2021] NSWCCA 274
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CaseChat Overview and Summary
The legal issues before the court were whether the initial sentencing took into account the utilitarian value of the applicant's plea, and if not, what the appropriate sentence should be. The court had to determine the extent to which the error affected the sentence and whether the Xiao error warranted a re-sentencing. Additionally, the court had to consider the appropriate weight to give to the utilitarian value of a guilty plea in the context of a terrorist offence.
The High Court found that the initial sentencing did not appropriately consider the utilitarian value of the applicant's plea, as mandated by the Xiao error. The court acknowledged that the failure to consider the utilitarian value of the plea led to an overestimation of the appropriate sentence. Consequently, the court re-sentenced the applicant, taking into account the utilitarian value of the plea. The court determined that the applicant's guilty plea warranted a reduction in sentence, reflecting the benefits to the community of an early resolution of the case and the deterrence effect of a reduced sentence. The High Court ultimately reduced the applicant's sentence, ensuring that the utilitarian value of the plea was appropriately factored into the final sentence.
The final orders of the court involved the re-sentencing of the applicant, taking into account the utilitarian value of the guilty plea. The court determined that the appropriate sentence, after considering the Xiao error, was a reduced term of imprisonment, ensuring that the benefits of the guilty plea were appropriately reflected in the sentence.
Orders
Orders of the court
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Background
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Evidence
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Decision
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Ratio Decidendi
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