AM v R

[2024] NSWCCA 26

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:

Principal judgment

Parties:

AM (Applicant)
Rex (Respondent)

Representation:

Counsel:
S Howell (Applicant)
P McDonald SC and C Akthar (Respondent)

Solicitors:
Birchgrove Legal (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2020/00309207

Publication restriction:

The names of the applicant and co-conspirators have been anonymised to comply with non-publication orders made on 8 September 2023.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Date of Decision:

27 April 2023

Before:

Turner DCJ

File Number(s):

2020/00309207

HEADNOTE

The applicant was convicted of a single offence of conspiring to provide money and support to his younger brother in the latter’s commission of an offence of engaging in hostile activities in a foreign state, namely Syria. The offence was created by a combination of s 11.5(1) of the Criminal Code Act 1995 (Cth) and s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) and carries a maximum penalty of ten years. The offence was committed over a period of 6-12 months in 2012 and 2013. A search warrant was executed at the applicant’s home in March 2014 but he was not charged until 28 October 2020. On 27 April 2023, he was sentenced by Judge Turner in the District Court to two years imprisonment with a custodial component of 12 months.

The applicant sought leave to appeal against his sentence on a single ground:

1. The learned sentencing judge erred by not considering the provisions of s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”) in determining whether an intensive correction order (“ICO”) should be imposed.

The applicant submitted the error concerned the operation of s 66(3) of the Sentencing Act, a provision relating to the imposition of ICOs. The issue before the Court was whether her Honour failed to have regard to the purposes of sentencing in s 3A as mandated by s 66(3) of the Sentencing Act. The Court of Criminal Appeal had considered this question in Chan v R [2023] NSWCCA 206, after Judge Turner published her judgment.

The Court held (per Hamill J, Davies and Huggett JJ agreeing), allowing the appeal and resentencing the applicant:

1. “Reading the remarks fairly and as a whole, it does not appear that the sentencing Judge took into account all the purposes of sentencing in s 3A in considering whether to impose an ICO rather than a full-time custodial sentence”. Accordingly, error was established: [33]-[43] (Hamill J); [1] (Davies J); [66] (Huggett J).

Stanley v Director of Public Prosecutions (NSW) (2023) 296 ALJR 107; [2023] HCA 3; Chan v R [2023] NSWCCA 206 applied.

2. In exercising the sentencing discretion afresh, an ICO was no longer an appropriate sentence because an ICO must commence on the day it is imposed. The Court found “it was appropriate to take into account that the applicant had served most of the custodial component of the sentence imposed by Judge Turner. It would have been artificial not to do so, or to approach the re-sentencing task on the basis that an ICO remained a sensible or fair disposition of the applicant’s case”: [44]-[46] (Hamill J); [1] (Davies J); [66] (Huggett J).

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; Turnbull v R [2019] NSWCCA 97; Turnbull v R [2019] NSWCCA 97 applied. Mandranis v R [2021] NSWCCA 97; (2021) 289 A Crim R 260; DG v R (No 1) [2023] NSWCCA 320 considered.

3. Based on the factual findings made in the District Court, no sentence other than imprisonment was appropriate. The imposition of an ICO would not foster the applicant’s rehabilitation or operate to advance the cause of community safety. The Court adopted the finding of the sentencing Judge that the evidence established the applicant had achieved rehabilitation in the nine years since the offence was committed: [49]-[52] (Hamill J); [1] (Davies J); [66] (Huggett J).

4. The Court agreed with and adopted the sentencing Judge’s factual findings and analysis of the applicant’s role, the nature of the conspiracy and the gravity of the crime: [49], [59] (Hamill J); [1] (Davies J); [66] (Huggett J).

5. The applicant was re-sentenced to a period of two years, to be released on a recognizance release order after nine months. Noting the applicant had already served more than nine months in custody, the Court directed that he be released from custody immediately upon entering the recognizance: [64]-[65] (Hamill J); [1] (Davies J); [66] (Huggett J).

Judgment

1. DAVIES J: I have had the considerable benefit of reading in draft the reasons of Hamill J for joining in the orders the Court made on1 February 2024.  My reasons for joining in those orders accord with Hamill J’s reasons.

2. HAMILL J: This application for leave to appeal against sentence was heard on Tuesday 30 January 2024. Two days later, on Thursday 1 February 2024, the Court made the following orders:

“(1) Leave to appeal is granted.

(2) The appeal against sentence 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 (9) 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 from custody upon entering the recognizance to be of good behaviour.”

3. The Court indicated it would provide its reasons in due course. These are my reasons for joining in those orders.

4. I was (and remain) of the opinion that the applicant established his single ground of appeal to the effect that the sentencing Judge erred by failing to consider the provision of s 3A of the Crimes (Sentencing Procedure) Act1999 (NSW) (“Sentencing Act”) in deciding whether to impose an intensive correction order (“ICO”). In exercising the sentencing discretion afresh, I concluded that a less severe sentence – at least in terms of the period of actual incarceration – was warranted and should be imposed.

The uncertainty surrounding the imposition of intensive correction orders and a chronology of relevant authorities

5. The error established by the applicant concerns the operation of s 66(3) of the Sentencing Act, a provision relating to the imposition of ICOs. Section 66 has created some issues for sentencing judges and appellate courts alike: see, for example, R v Pullen [2018] NSWCCA 264; (2018) 275 A Crim R 509, R v Fangaloka [2019] NSWCCA 173, Casella v R [2019] NSWCCA 201, Wany v DPP (2020) 103 NSWLR 620; [2020] NSWCA 318, Mandranis v R [2021] NSWCCA 97; (2021) 289 A Crim R 260, and Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1; [2021] NSWCA 337. These decisions, the statutory scheme and the nature of the jurisdiction vested in a sentencing judge in this state were considered by the High Court in Stanley v Director of Public Prosecutions (NSW) (2023) 296 ALJR 107; [2023] HCA 3 (“Stanley”), an appeal from the last case referred to in the preceding sentence. The High Court overturned the decision of the Court of Appeal.

6. Since the decision in Stanley, this Court considered the operation of s 66(3) in Commonwealth matters in Chan v R [2023] NSWCCA 206 (“Chan”). The judgment in Chan was published after the applicant was sentenced.

7. I mention these matters to emphasise three things concerning the careful, thoughtful and thorough sentencing judgment delivered by Judge Turner in the present case.

8. First, the applicant argued at first instance that the “threshold” in s 5 of the Sentencing Act was not crossed – that is, it was submitted that her Honour would not be satisfied that the only appropriate sentence was one of imprisonment. For that reason, no substantial submissions were made concerning the matters ventilated on the appeal and her Honour did not have the benefit of any submissions on the operation of s 66(3).

9. Secondly, the High Court published its judgment in Stanley on 15 February 2023, that is after the arguments before Judge Turner were completed. Even so, her Honour referred to, and applied correctly, the reasons of the majority of the High Court.

10. Thirdly and most significantly, I repeat that the decision in Chan, upon which the applicant’s appeal was founded, was decided after Judge Turner sentenced the applicant.

11. I make those preliminary observations to highlight that nothing in what follows should be taken as a criticism of the sentencing Judge.

The offence, maximum penalty, factual disputes and findings

The conspiracy charge and maximum penalty

12. The applicant was charged with a single offence of conspiring with his younger brother (“F”) to give money and provide support to F in his commission of the offence of engaging in hostile activities in a foreign state, namely Syria. [1] The offence charged against the applicant was created by a combination of s 11.5(1) of the Criminal Code Act 1995 (Cth) and s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). He was exposed to a maximum penalty of 10 years imprisonment.

    1. There is an extant non-publication order made by the sentencing Judge in the District Court. To comply with that order, the identities of various people have been anonymised by the use of the following letters: A, E, F and M.

13. The offence was committed over 6-12 months between July 2012 and August 2013 and was constituted by several distinct and separate acts to which I will make brief reference. The ongoing nature of the offending and the length of the applicant’s involvement meant the offence was quite serious.

14. A search warrant was executed at the applicant’s home in March 2014, but he was not arrested and charged until 28 October 2020. The reason or reasons for this extensive delay in charging the applicant was not explained, except to say that it arose through no fault of the applicant.

Background to offending

15. The facts that provided the background or context to the conspiracy included F’s involvement in protests and speeches critical of the al-Assad regime in Syria going back to May 2010 and, more pertinently, on 21 January 2012 and 19 March 2012. These speeches and rallies called on people to make donations to assist with a “defensive jihad” in Syria. After those addresses, there were communications between F, a co-conspirator (“M”) and another person relating to where donations could be made. F continued to agitate over the following months and made plans to travel to Syria. He left Australia on 7 August 2012.

A brief description of the applicant’s offending

16. Between August and November 2012, the applicant remained in contact with F and communicated with other associates including M, E and A, each of whom would, in time, travel to the Levant.

17. A was detained in Sydney Airport on 24 October 2012, two days after he spoke with the applicant who offered to pick him up (and inferentially take him to the airport). A was found to be in possession of AUD $34,750 in cash, all but $5,000 of which was seized by the authorities before A was permitted to leave Australia. There were various communications between the men concerning the seizure of the cash, the cancellation of F’s passports and the reasons for that cancellation. Similar communications continued through to the early months of 2013.

18. Between August and October 2012, the applicant made various arrangements to send funds and supplies to his brother. M returned to Australia on 26 December 2012 and spoke to customs officers. He told them he had travelled to Syria but was involved in humanitarian work in a “non-violent part of Syria”. The officers searched his luggage and found a diary and telephones where telephone numbers associated with F and the applicant were located.

19. Between February and August 2013 there were several communications between the applicant, F and various others concerning the transfer of money to Syria as well as the supply of equipment including items such as a bulletproof vest and a gun holster for 9mm Glock pistol. The sentencing Judge noted that the goods supplied to his brother did not include “firearms and weaponry”.

20. In the course of these communications F said things which made it clear his activities in Syria went beyond humanitarian aid work and involved participation in the military hostilities with which that country was then beset. For example, in mid to late March 2013 he said, “[j]ust a couple of days ago, I [went] back into the battle, and thank God, it was very successful”. He spoke of taking a big city and killing somebody from the Assad family. The applicant replied to those specific comments by saying “[m]ay God make you victorious”.

21. On 27 March 2013, the brothers discussed the “new [Australian] law” making it an offence to send money or assist people fighting with “banned” organisations.

22. In May 2013, F had various conversions with others in which he discussed what he was doing in Syria and, at one stage, expressed his wish to be a martyr. There was evidence that the applicant spoke to those other people about his brother’s activities and steps that they might take to remove evidence of F’s poetry and lectures from the internet. There were ongoing discussions about possible surveillance including their telephones being “bugged” as well as ongoing discussions about getting money to F in Syria.

When the applicant joined the conspiracy and his knowledge of F’s activities

23. There was a dispute at the sentencing hearing as to the period during which the applicant was involved in the conspiracy and the extent of his knowledge of his brother’s activities. The applicant gave evidence on these issues, much of which was rejected by Judge Turner. There was a series of telephone intercepts that undermined significant aspects of the applicant’s evidence.

24. In a closely reasoned portion of the sentencing judgment, Judge Turner analysed the issues in dispute and made several factual findings which were not disputed on the appeal.

25. Her Honour did not accept the Prosecutor’s submission that the applicant was “from the [outset]” part of the F’s plan to “go to Syria to fight”. However, the sentencing Judge was satisfied beyond reasonable doubt that he was aware by October, and before A’s departure, that his brother was engaged in armed hostilities in Syria.

26. Judge Turner also found that at least some of the money seized from M at the airport was provided by the applicant. However, her Honour said there was no clear “delineation” between money that was sent for humanitarian purposes and money sent to support F’s engagement in armed hostilities. Even so, she was satisfied to the criminal standard that “at least [part] of the money sent or agreed to be sent” to F was provided with the intention of promoting or supporting F’s engagement in armed hostilities in Syria.

27. Her Honour found that the offender provided “numerous” goods to F. These “ranged from electronic goods to practical goods, and goods from everyday purpose to goods for the sole use in hostile activities”. The last-mentioned category included radio-controlled helicopters, a camera with night vision, a laser that determined distance, walkie talkies, a bullet proof vest, a gun holster and other items sourced from a combat gear shop called “Blackhawk.com”.

The sentencing Judge’s finding as to the applicant’s role and involvement in the conspiracy.

28. Judge Turner described the applicant’s role as “organisational” and “significant” and held that his involvement was “not short lived”. Her Honour also found that the offender was concerned about being detected by authorities and took steps to avoid detection.

29. The following findings summarised the factual basis upon which the sentence was based:

“As to the facts and therefore the nature and seriousness of the offence, I find the following:

The offender joined the conspiracy in October 2012 and before [A] travelled.

Thereafter, he agreed to provide goods and money to support [F] to engage in armed hostilities in Syria.

He participated in the conspiracy until its end in 2013. However, there is no evidence of any overt acts or agreement to provide money or goods after April 2013. His offending involved a course of conduct over that period of October to April of approximately six months which involved a number of agreements for him to provide goods and money. As such, his offending did not involve a momentary lack of judgment.

During the period of his participation in the conspiracy, the offender was aware that his brother was engaged to a substantial extent in armed hostilities in Syria. By March 2013, he was aware that such hostilities included a battle where one person was killed, and at the time he was told this, he expressed support for his brother.

The offender knew that his brother was engaged in armed hostilities with others as part of a group.

The offender played a significant role in the conspiracy. He was the person or at least one of the persons who communicated with his brother to ascertain his needs. His role was an organisational role which included researching goods, sourcing goods, buying goods, sourcing and raising money, and organising and making arrangements for such goods and money to be couriered to [F] by way of other people carrying it as they travelled. These arrangements were with a number of different people, many of whom are not identified, and included people who were already overseas, and that the arrangements continued when they were overseas.

The offending involved planning.

The goods ranged from everyday personal items to items clear to be used in the engagement of armed hostilities. None of the goods included firearms or weaponry.

Both the goods and the money were quite clearly capable of providing support for [F] in his engagement in armed hostilities in Syria.

The money agreed to be provided was not unsubstantial, into the tens of thousands of dollars rather than just thousands of dollars, and it is apparent that part of the agreement as at February 2013 involved money calculated to keep [F] there for ‘more than a year’.

During the course of the conspiracy, the offender took steps to avoid the detection of authorities.

I am unable to make a finding as to the extent to which the conspiracy was achieved, that is, as to specifically what money and what goods were delivered to the brother to support him in the engagement of armed hostilities, but I do find there were multiple attempts made to achieve the conspiracy by way of persons travelling to that area and considerable efforts made by the offender to arrange that and the goods and money to be taken.

I find that the offender was motivated in part by caring for his brother, but also, he was motivated by his condemnation of the situation in Syria and the Assad regime and his empathy and support for those who fought back at the Assad regime and suffered as a result of it.

All of these findings and features lead me to the conclusion that this is a relatively serious example of this type of offending and not in the lowest range of offending for this type of offence.”

The “section 5 threshold”: whether no sentence other than imprisonment was appropriate?

30. The focus of the applicant’s submission at first instance was that there were alternatives other than a sentence of imprisonment that were appropriate in all of the circumstances of the case. Those submissions were predicated on more favourable factual findings following the disputed facts hearing.

31. On appeal, counsel accepted that this Court would not disturb her Honour’s factual findings and made no submission that a sentence other than imprisonment was appropriate.

32. Further, the argument had been overtaken by events because the applicant had been in custody since 27 April 2023 and the custodial portion of the sentence – that is the period before the recognizance release order took effect (26 April 2024) – had almost been served in its entirety.

The established error

33. Section 66 of the Sentencing Act provides:

66 Community safety and other considerations

(1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.

(2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending.

(3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.

34. As I said at the outset, Judge Turner did not have the benefit of counsel’s assistance in relation to the decision of the High Court in Stanley because that judgment was published after the submissions on sentence were made in the present case. That case is important in the guidance it provides as to the correct approach to s 66. However, Judge Turner’s judgment carefully navigated, and correctly applied, the reasons for the decision of the majority in Stanley. However, this Court was yet to hand down its judgment in Chan, which dealt with the application of s 66(3) in sentencing for offences under Commonwealth law.

35. As to that sub-section, her Honour said:

“However, s 66(3) of the Crimes (Sentencing Procedure) Act provides that I must also consider in this case all relevant purposes of sentencing, which would, in this instance, include those set out in part IB of the Commonwealth Crimes Act that I have already addressed.”

36. In this context, her Honour did not make express reference to the purposes of sentencing in s 3A of the Sentencing Act. That section provides:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows-

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

37. A similar, but not identical, approach was taken by the sentencing Judge in Chan, where Bright DCJ said:

“I note that because I am dealing with a Commonwealth offence, I have taken into account the s 16A matters rather than the s 3A matters. Whilst I am satisfied that the offender's risk of reoffending would be better addressed by serving a sentence as an Intensive Correction Order, I consider that only a full‑time custodial sentence can address the need for punishment, denunciation, and fulfil the very strong need for general deterrence.”

38. That passage was held to contain error: Chan at [7], [9] (Kirk JA) and [115]-[116] (N Adams J).

39. The error in the observations of the sentencing Judge in Chan were more stark because, for the purposes of s 66(3), the Judge plainly replaced the “purposes of sentencing” in s 3A of the state act with the matters to which the court is “to have regard” under s 16A of Crimes Act 1914 (Cth) (“Commonwealth Crimes Act”). Even so, the observation in the present case contains a similar vice, although it did so by reference to the whole of Pt IB of the federal statute. That part contains many diverse provisions relating to sentencing but it does not set out succinctly – or at all – the purposes of sentencing in the way that s 3A does. Further, reading the remarks fairly and as a whole, it does not appear that the sentencing Judge took into account all the purposes of sentencing in s 3A in considering whether to impose an ICO rather than a full-time custodial sentence.

40. The sentencing remarks show clearly that the sentencing Judge considered the importance of adequate punishment, denunciation and general deterrence in deciding not to impose an ICO. However, the judgment does not suggest that her Honour considered the objective of promoting the applicant’s rehabilitation in deciding against the imposition of an ICO.

41. In Chan, both Kirk JA and N Adams J emphasised the “material” or “real” difference between making an assessment of an offender’s prospects of rehabilitation and promoting the rehabilitation of that offender: Chan at [9] (Kirk JA) and [114]-[115] (N Adams J). For example, N Adams J said:

“114 The applicant placed particular reliance on the way rehabilitation is to be taken into account in the respective provisions. As the Crown properly conceded, there is a real difference between promoting the rehabilitation of an offender as a purpose of sentencing (s 3A) and considering that offender’s prospect of rehabilitation (s16A). The applicant was assessed as a low risk of reoffending and her Honour expressly found that she had ‘no doubt’ that the consequences of the offending would deter him from any future offending. It was expressly put to the sentencing court that if an ICO was considered, the applicant’s rehabilitation would be best achieved by supervision and access to treatment programs in the community consistent with what this Court held in Pullen.

115 Although her Honour made positive findings regarding the applicant’s prospects of rehabilitation and low risk of reoffending for the purposes of the first two steps, she did not consider that purpose of sentencing again for the purposes of s 66. This is despite the fact that a submission was put to her in this regard. It is to be accepted that her Honour was not required to go through every purpose of sentencing nor to recite all relevant principles for the purposes of considering s 66(3). But given that the s 66(1) and (2) factors militated in favour of an ICO being imposed and that the issue had been raised in submissions, it was only her Honour’s consideration of s 66(3) which could have tipped the balance the other way. In other words, it was the consideration of s 66(3), including the purposes of sentencing in s 3A which her Honour considered determinative.”

[Emphasis in original.]

42. Similar, if not identical, considerations apply in the applicant’s case. Judge Turner made very favourable findings as to the applicant’s rehabilitation. Because of the extensive and unexplained delay in charging him, the applicant was able to demonstrate a period approaching a decade in which he had committed no offences and during which he had not come under notice for exhibiting “radical” or extremist beliefs. These positive findings influenced the total length of the sentence, and the actual period of incarceration, but the sentencing Judge did not refer to them, or to the objective of promoting his further and ongoing rehabilitation, in declining to impose an ICO rather than a full-time term of imprisonment.

43. It was for those reasons I was satisfied that the applicant’s single ground of appeal must be upheld.

Re-sentencing

Exercising the sentencing discretion afresh

44. Error having been established, it was necessary for the Court to re-sentence in accordance with the decision of the High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. In Turnbull v R [2019] NSWCCA 97 at [42], Simpson AJA emphasised the need for an appellate court that re-exercises the sentencing discretion “to put aside the sentence imposed at first instance”. At [44] her Honour described the process in the following terms:

“… the duty of this Court to exercise an independent sentencing discretion is not discharged merely by adopting the sentence imposed at first instance and concluding that ‘no lesser sentence is warranted in law’. This Court must, as was made clear in Kentwell, take into account the purposes of sentencing and any relevant legal sentencing requirements, the agreed or determined facts, its assessment of the criminality involved, together with factors personal to the offender that may bear upon the selection of the appropriate sentence. That includes, as was made clear in Simpson and Baxter, and restated in Kentwell, any post sentencing factors of which evidence has been admitted. It is appropriate to adopt relevant findings of disputed fact made by the sentencing judge. And where assessments or evaluations (for example, of objective gravity or of the offender’s prospects of rehabilitation) have been made that have not been the subject of challenge, they also may be adopted and acted upon."

45. In Tenenboim v R [2024] NSWCCA 1 at [41] Harrison CJ at CL acknowledged that there is an element of artificiality in this Court purporting to have no regard to the sentence imposed below. N Adams J at [66] (with the concurrence of Stern JA at [1]) explained how this observation should be understood.

46. In the applicant’s case, it was appropriate to take into account that the applicant had served most of the custodial component of the sentence imposed by Judge Turner. It would have been artificial not to do so, or to approach the re-sentencing task on the basis that an ICO remained a sensible or fair disposition of the applicant’s case. An ICO cannot be backdated and must commence on the day it is imposed: Sentencing Act s 71. It is unnecessary to enter the debate whether “time served” can be considered in setting the length of the ICO: consider Mandranis v R [2021] NSWCCA 97; (2021) 289 A Crim R 260 at [61]-[63] (Simpson AJA) and [67] (N Adams J) and DG v R (No 1) [2023] NSWCCA 320 at [23]-[25].

47. I concluded (with the concurrence of the other members of the bench) that this Court should make a sentencing order resulting in the applicant’s immediate or imminent release.

48. In reaching that conclusion, I adopted most of the findings made by the sentencing Judge.

Objective circumstances and the gravity of the crime

49. Judge Turner’s careful analysis of the factual circumstances of the offence and her resolution of the disputed facts was unimpeachable and were not contested on appeal. I have set out the facts, in much less detail than did Judge Turner, earlier in this judgment. I adopted those findings and agreed with her Honour’s conclusion that this was “a relatively serious example of this type of offending and not in the lower range of offending for this type of offence.”

50. The applicant conceded, based on the factual findings, that no sentence other than imprisonment was appropriate. That concession was correct. Counsel agreed that the imposition of an ICO at this stage was not in the applicant’s interest and I concluded that such an outcome would not foster the applicant’s rehabilitation or operate to advance the cause of community safety. On the evidence before the Court, the applicant does not represent a danger to the community and the period of time which he is subject to a recognizance release order amply satisfies the need for the sentence to protect the community.

Mitigating factors and the applicant’s personal case

51. The applicant was 32-33 years old at the time of the offence and 43 at the time the appeal was heard. He was born in Egypt and came to Australia when he was four years old. F is his only (and younger) brother and he has three younger sisters. When the applicant was 15, his father deserted the family to return to Egypt and the applicant was cast into the role of “father” to his four younger siblings. He had no previous criminal convictions, although he committed an offence of dishonesty in 2011 which was dealt with in the Local Court in 2022 by way of an 18-month conditional release order without conviction.

52. I agreed with and adopted Judge Turner’s approach to the applicant’s subjective case. He has excellent prospects of rehabilitation and has done much in the nine years since the current offence to establish what the sentencing Judge described as “actual” or “demonstrated” rehabilitation.

53. There was evidence that the applicant suffered from depression at the time of the offence. Her Honour found that this reduced his moral culpability modestly because it impacted on his judgment and decision making. The sentencing Judge also accepted that his depressive illness would make his time in custody more onerous. Her Honour did not accept that his mental health reduced the importance of general deterrence in any significant way. General deterrence remained an important matter in exercising the sentencing discretion.

54. Her Honour accepted evidence of some health issues affecting the applicant’s children and mother and took into account the impact of the sentence on these family members.

55. Judge Turner noted the lengthy delay in bringing the prosecution and took into account, as this Court must, the fact that the applicant was left in a state of uncertain suspense for many years: see R v Winchester (1992) 58 A Crim R 354; Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 and R v Todd (1982) 2 NSWLR 517.

56. I also adopted the sentencing Judge’s conclusion that the applicant was remorseful despite him contesting aspects of the facts of the case.

57. As Judge Turner found, the applicant was entitled to a 25% discount for his early plea of guilty. The plea also reflected his willingness to facilitate the course of justice and was part of the evidence that supported favourable findings as to his contrition and prospects of rehabilitation.

The purposes of punishment and other relevant considerations

58. I considered the purposes of punishment both under s 3A (set out at [36]) and at common law. I also took into all relevant matters under s 16A of the Commonwealth Crimes Act. I agreed with Judge Turner’s conclusion that deterrence, denunciation and adequate punishment were important to the sentencing exercise.

59. In view of the factual findings concerning the state of the applicant’s knowledge of his brother’s activities in Syria and the length of time over which he assisted him, I agreed with the sentencing Judge that the only appropriate sentence was one of imprisonment. Had different factual findings been made, the submission to the contrary made by counsel at first instance would have been a valid one.

60. Because of the passing of time and the practical reality that the applicant had served nine months full time gaol by the time the appeal was heard, it is unnecessary to express any concluded opinion as to whether it would have been appropriate to order that the sentence be served by way of an ICO. That is a question upon which judicial minds may differ and there were factors pulling in both directions. Whether proper consideration of the purpose of promoting the applicant’s rehabilitation would lead to a different conclusion to that reached by the sentencing Judge is a difficult one that need not now be decided.

61. I kept firmly in mind the maximum penalty of ten years imprisonment, the seriousness of the offence and the policy purposes behind this somewhat unusual legislation.

Conclusion and re-sentencing

62. Instinctively synthesising all these matters, I would have commenced with a sentence of two years and eight months (32 months) imprisonment. I would have reduced that sentence by 25% (eight months) with the result that the applicant would be sentenced to a (head) sentence of 2 years. As it happens, that is the same total sentence imposed at first instance.

63. In view of all relevant matters, I determined that nine months of that sentence should be served in prison and the remainder in the community while the applicant is subject to a recognizance release order. That is a shorter period of incarceration than that imposed in the District Court.

64. Put in terms of the statute providing this Court with its jurisdiction to intervene, I was satisfied that a different, less severe, sentence was warranted and should be imposed: Criminal Appeal Act 1912 (NSW) s 6(3). It followed that the appeal against sentence must be upheld.

65. Accordingly, I joined in the orders set out at [2] above including the direction that the applicant (who had served more than nine months by the time of the appeal) be released immediately.

66. HUGGETT J: I have read the draft reasons of Hamill J for joining in the orders the Court made on 1 February 2024.  My reasons for joining those orders accord entirely with Hamill J’s reasons. 

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Endnote

Amendments

15 March 2024 - Fixed date of decision

Decision last updated: 15 March 2024