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
[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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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.