Alou v The Queen

Case [2019] NSWCCA 231


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Alou v R [2019] NSWCCA 231
Hearing dates: 19 June 2019
Date of orders: 04 October 2019
Decision date: 04 October 2019
Before: Bathurst CJ at [1]; Price J at [198]; N Adams J at [201]
Decision:

(1)   Grant the applicant leave to appeal.
(2)   Appeal dismissed.

Catchwords:

CRIME – Terrorism offences – Aid, abet, counsel or procure the commission of terrorist act -

 

CRIME – Appeals – Appeal against sentence – Whether error in sentencing applicant on basis that prospects of rehabilitation were poor – Assessed prospects of rehabilitation on basis of evidence at the time

 

CRIME – Appeals – Appeal against sentence – Whether strong element of general or personal deterrence required

 

SENTENCING – Relevant factors on sentence – Deterrence – General deterrence

 

SENTENCING – Relevant factors on sentence – Deterrence – Personal deterrence

 

CRIME – Appeals – Appeal against sentence – Whether error in giving primacy to deterrence, incapacitation and retribution over rehabilitation and youth – Applicant 18 years of age – Terrorism Offence

 

SENTENCING – Relevant factors on sentencing – Relevance of Youth – Terrorism Offences

 

CRIME – Appeals – Appeal against sentence –Whether error in failing to take into account existence of continuing detention scheme for high risk terrorist offenders

 

HIGH RISK OFFENDERS – Continuing detention orders –High risk terrorist offenders – Relevance to sentencing

 

CRIME – Appeals – Appeal against sentence – Manifest excess

 

CRIME – Appeals – Appeal against sentence – Section 19AG Crimes Act (1914) (Cth) – Whether error in failing to determine an appropriate non-parole period – Whether error in fixing the non-parole period – Whether section 19AG Crimes Act (1914) (Cth) invalid – Statutory minimum non-parole period

CONSTITUTIONAL LAW – Commonwealth Constitution – Legislative Power – Validity of section 19AG Crimes Act (1914) (Cth) – Whether incompatible with the exercise of judicial power – Statutory minimum non-parole period
Legislation Cited: Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Code (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Bahar v R (2011) 214 A Crim R 417; [2011] WASCA 249
BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
Bugmy v R (1990) 169 CLR 525 at 537; [1990] HCA 18
Conte v R [2018] NSWCCA 209
Director of Public Prosecutions (Cth) v Besim (No 3); Director of Public Prosecutions (Cth) v MHK (a Pseudonym) (No 3) (2017) 52 VR 303; [2017] VSCA 180
Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208
Director of Public Prosecutions (Cth) v MHK [No 1] (2017) 52 VR 272; [2017] VSCA 157
Elomar v R [2014] NSWCCA 303
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hughes v R [2018] NSWCCA 2
IM v R [2019] NSWCCA 107
Karim v R; Magaming v R (2013) 83 NSWLR 268; [2013] NSWCCA 23
Knight v Victoria (2017) 261 CLR 306; [2017]…

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AGLC
Alou v The Queen [2019] NSWCCA 231
Case
[2019] NSWCCA 231
Decision Date

CaseChat Overview and Summary

The appellant, Alou, was convicted of terrorism offences and appealed against his sentence. The appeal focused on whether the sentencing judge made an error in assessing the prospects of rehabilitation, prioritising deterrence, incapacitation and retribution over rehabilitation, and failing to consider the continuing detention scheme for high-risk terrorist offenders. The appellant also argued that the sentence was manifestly excessive and that there was an error in the determination of the non-parole period under section 19AG of the Crimes Act. Additionally, the appellant contested the validity of section 19AG, claiming it was incompatible with the exercise of judicial power.

The court considered several issues, including whether the sentencing judge erred in assessing the prospects of rehabilitation, whether the judge erred by prioritising deterrence over rehabilitation, and whether the judge should have considered the continuing detention scheme. The court also examined whether the sentence was manifestly excessive, whether there was an error in the determination of the non-parole period, and whether section 19AG was valid.

The court found that the sentencing judge did not err in assessing the prospects of rehabilitation based on the evidence presented at the time. The court held that while rehabilitation is an important consideration, it should not be given primacy over deterrence, incapacitation and retribution, particularly in terrorism offences. The court further found that the judge did not err in failing to consider the continuing detention scheme, as it was not relevant to the sentencing of the appellant. The court determined that the sentence was not manifestly excessive and that there was no error in the determination of the non-parole period. Finally, the court upheld the validity of section 19AG, concluding it did not infringe upon the exercise of judicial power.

The appeal was dismissed, and the original sentence was upheld. The court found that the sentence was appropriate and did not err in any of the grounds raised by the appellant. The validity of section 19AG was also upheld, and the non-parole period was deemed correctly determined.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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