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Almaouie v R

Almaouie v R

Case [2021] NSWCCA 274 19 November 2021

Sentencing

Criminal Law

Type to search within this case.

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:
Alou v R [2019] NSWCCA 231
Elomar v R [2014] NSWCCA 303
Faheem Khalid Lodhi v Regina [2007] NSWCCA 360; (2007) 179 A Crim R 470
IM v R [2019] NSWCCA 107
Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khalid v R [2020] NSWCCA 73
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
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category: Principal judgment
Parties: Jibryl Almaouie (Applicant)
Regina (Respondent)
Representation:
Counsel:
TD Anderson (Applicant)
BJ Power (Crown)
Solicitors:
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…

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.

Continue reading Almaouie v R

Details

AGLC: Almaouie v R [2021] NSWCCA 274
Case: [2021] NSWCCA 274
Decision Date: 19 November 2021

CaseChat Overview and Summary

In the case of Almaouie v R, the applicant, Mr. Almaouie, was convicted of a terrorist offence and sentenced by the High Court of Australia. The nature of the dispute involved the calculation of the utilitarian value of the applicant's guilty plea, which was initially overlooked due to a judicial error. This error was identified in the case of Xiao v R, prompting the High Court to re-evaluate the sentence.

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