AM v R

Case [2024] NSWCCA 26 1 March 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: AM v R [2024] NSWCCA 26
Hearing dates: 30 January 2024
Date of orders: 01 February 2024
Decision date: 01 March 2024
Before: Davies J at [1]
Hamill J at [2]
Huggett J at [66]
Decision:
(1) Leave to appeal is granted.
(2) The appeal against sentence is allowed.
(3) Quash the sentence imposed in the District Court on 27 April 2023 and in lieu thereof:
(i) The applicant is sentenced to imprisonment for a period of two years commencing on 27 April 2023 and expiring on 26 April 2025;
(ii) Pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth), the Court makes a recognizance release order directing the release of the applicant after he has served nine months of the sentence (that is, on 26 January 2024) and upon the applicant giving surety in the sum of $100 without security and entering a recognizance to be of good behaviour for the remainder of the term of imprisonment.
(4) Noting the applicant has already served the nine months in accordance with order 3(ii) above, the Court directs the applicant’s immediate release upon entering the recognizance to be of good behaviour.

Catchwords:
CRIMINAL LAW – sentencing – conspiracy to assist a person to engage in hostile activities in Syria – offence against Commonwealth Criminal Code – intensive correction order – requirement to take into account purposes of punishment in state sentencing act – whether requirement satisfied by considering matters in Commonwealth Crimes Act – where issue considered by Court of Criminal Appeal after current sentence imposed – error established despite otherwise impeccable and well-reasoned sentencing judgment – re-sentencing – where intensive correction order no longer appropriate – sentence reduced and applicant entitled to immediate release

Legislation Cited:
Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 7(1)(e)
Crimes (Sentencing Procedure) Act1999 (NSW), ss 3A, 5, 66, 66(3), 71
Crimes Act 1914 (Cth), Pt IB, s 16A
Criminal Appeal Act 1912 (NSW), s 6(3)
Criminal Code Act 1995 (Cth), s 11.5

Cases Cited:
Casella v R [2019] NSWCCA 201
Chan v R [2023] NSWCCA 206
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mandranis v R [2021] NSWCCA 97; (2021) 289 A Crim R 260
Mandranis v R [2021] NSWCCA 97; (2021) 289 A Crim R 260
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
R v Fangaloka [2019] NSWCCA 173
R v Pullen [2018] NSWCCA 264; (2018) 275 A Crim R 509
R v Todd (1982) 2 NSWLR 517
R v Winchester (1992) 58 A Crim R 354
Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1; [2021] NSWCA 337
Stanley v Director of Public Prosecutions (NSW) (2023) 296 ALJR 107; [2023] HCA 3
Tenenboim v R [2024] NSWCCA 1
Turnbull v R [2019] NSWCCA 97
Wany v DPP (2020) 103 NSWLR 620; [2020] NSWCA 318

Category:

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 AM v R

Details

AGLC: AM v R [2024] NSWCCA 26
Case: [2024] NSWCCA 26
Decision Date: 01 March 2024

CaseChat Overview and Summary

The case of AM v R involved the applicant who had pleaded guilty to conspiracy to assist a person to engage in hostile activities in Syria. This offence is captured under the Commonwealth Criminal Code. The case was heard by the Court of Criminal Appeal of Victoria, which was called upon to review the sentence imposed by the County Court. The appeal centred on whether the purposes of punishment, as outlined in the Sentencing Act of Victoria, had been adequately considered during the sentencing process. The applicant argued that the County Court had erred in its interpretation of the sentencing principles by relying on the Commonwealth Crimes Act rather than the Victorian Sentencing Act.

The central legal issue before the Court of Criminal Appeal was whether the County Court had correctly applied the principles of sentencing as set out in the Victorian Sentencing Act. Specifically, the Court had to determine if the County Court erred in considering matters under the Commonwealth Crimes Act instead of the Victorian legislation. The Court of Criminal Appeal had to assess whether this error, if found, was significant enough to warrant a re-sentencing hearing, particularly given that the error was identified after the imposition of the sentence. The applicant contended that the error was material and that it had led to an inappropriate sentence.

In its judgment, the Court of Criminal Appeal held that there was indeed an error in the County Court’s approach to sentencing. The error stemmed from the misapplication of the Commonwealth Crimes Act rather than the Victorian Sentencing Act. The Court found that this error was material and that it impacted the overall appropriateness of the sentence imposed. The Court of Criminal Appeal noted that, while the sentencing judgment was otherwise impeccable and well-reasoned, the error concerning the application of the wrong legislative framework warranted re-sentencing. As a result, the Court concluded that an intensive correction order was no longer appropriate and reduced the sentence accordingly. Consequently, the applicant was entitled to immediate release.

Orders