Alou v The Queen - [2020] HCATrans 83

[2020] HCATrans 083

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S341 of 2019

B e t w e e n -
RABAN ALOU
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 12 JUNE 2020, AT 10.10 AM

MR S.J. ODGERS, SC: May it please the Court, I appear for the applicant. (instructed by Legal Aid NSW)

MS S.M. McNAUGHTON, SC: May it please the Court, I appear with my learned friends, MR Y. SHARIFF and MS J.D. ALDERSON, for the respondent. (instructed by the Commonwealth Director of Public Prosecutions)

NETTLE J: Yes, Mr Odgers.

MR ODGERS: Your Honours, we do seek an extension of time in this matter.

NETTLE J: Is that opposed, Ms McNaughton?

MS McNAUGHTON: No, it is not, your Honour.

NETTLE J: Thank you. You have that.

MR ODGERS: Thank you, your Honour. Your Honour, there are four grounds, and I will deal with them in the order in which they appear in the application book. Ground 1 suggests an error of the sentencing judge in giving primacy to general deterrence and denunciation above the effect of youth. As your Honours appreciate, the applicant had just turned 15 when the offence was committed. I am sorry – did I say 15? Yes, 18, I apologise – 18, your Honour. Sorry, your Honour, I did not hear your Honour’s question.

GORDON J: I thought he was older than 15.

MR ODGERS: Yes, you are absolutely right, your Honour. I was corrected by my friend that he had in fact just turned 18.

GORDON J: Thank you.

MR ODGERS: It was accepted by the sentencing judge that he had been introduced to extremist ideas, extremist views which included the need for violent jihad when he was 17 and as a result had become “deeply radicalised”, to use the language of the judge, when he was 17.

The first aspect of the ground is that the sentencing judge relied on a statement of sentencing principles to conclude that while youth was “relevant” it should be given less weight in light of the seriousness of the offence. Your Honours will see that ultimate point made by his Honour at paragraph 277 in the judgment at application book 67. His Honour referred to general principles at application book 44 and 45, but at 67, paragraph 277:

Whilst the youth of an offender is always relevant, it may be given less weight in light of the seriousness of the offence –

and then he goes on, and I will deal with the second aspect of that sentence in a minute. Until a few years ago, your Honours, the prevailing view among sentencing courts was that the weight to be given to youth did not vary depending upon the seriousness of the offence.

GORDON J: That has changed, though, has…

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 Alou v The Queen

Details

AGLC: Alou v The Queen [2020] HCATrans 83
Case: [2020] HCATrans 83
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, who was 18 years old at the time of the offence, sought to challenge his sentence. The respondent was the Crown. The applicant argued that the sentencing judge erred in giving primacy to general deterrence and denunciation over the effect of his youth, and that this approach was endorsed by the Court of Criminal Appeal.

The legal issues before the High Court included whether it is appropriate, as a matter of principle, to give less weight to the youth of an offender and their prospects of rehabilitation in sentencing for serious offences, particularly terrorism offences, in favour of general deterrence. The applicant also raised the question of whether the potential existence of a continuing detention scheme for high-risk terrorist offenders should reduce the need for a sentence to serve the purpose of community protection through incapacitation. Finally, the applicant challenged the constitutional validity of a provision of the Crimes Act, arguing it improperly conferred a function on sentencing courts that impaired their institutional integrity.

The applicant's counsel contended that the sentencing judge and the Court of Criminal Appeal erred by applying a general principle that youth should be given less weight in serious offences, rather than undertaking an individualised synthesis of all relevant factors. It was argued that this shift in sentencing approach, influenced by overseas jurisprudence, was inconsistent with the principle of individualised justice and that the High Court had not previously determined the significance of youth in such sentencing considerations. The applicant also argued that the existence of a statutory scheme for assessing dangerousness at the end of a sentence should be considered, as it could reduce the need for a sentence to incapacitate an offender based on future risk. Furthermore, the applicant submitted that a specific legislative provision requiring a minimum proportion of a non-parole period was arbitrary and could compel courts to dispense injustice, thereby impairing their institutional integrity.

The High Court granted the applicant an extension of time to seek special leave to appeal. The respondent's counsel argued that established appellate authority supports the principle that youth must be afforded different consideration in sentencing for serious offences, including terrorism offences, compared to other offences. The Chief Justice of the Court of Criminal Appeal was cited as stating there was a clear body of authority at the appellate level supporting this approach.

Orders