Atai v The Queen

Case [2020] NSWCCA 302


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Atai v R [2020] NSWCCA 302
Hearing dates: 2 June 2020
Decision date: 23 November 2020
Before: Bathurst CJ at [1]; Price J at [137]; N Adams J at [138]
Decision:

(1)   Grant the applicant leave to appeal.

(2)   Appeal dismissed.

Catchwords:

CRIME – appeals – appeal against sentence – manifest excess – accumulation – totality principle – objective seriousness of offences

CRIME – appeals – appeal against sentence – whether sentencing judge erred in his treatment of the applicant’s youth – principles relevant to terrorism offences

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code (Cth)

Cases Cited:

Abbas v R [2013] NSWCCA 115; 231 A Crim R 413

Alameddine v R [2020] NSWCCA 232

Alou v R (2019) 101 NSWLR 319; [2019] NSWCCA 231

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518

Director of Public Prosecutions (Cth) v MHK (2017) 52 VR 272; [2017] VSCA 157

Elomar v R [2014] NSWCCA 303; 316 ALR 206

GS v R [2016] NSWCCA 266

Howard v R [2019] NSWCCA 109

Hughes v R [2018] NSWCCA 2

IM v R (2019) 100 NSWLR 110; [2019] NSWCCA 107

Khalid v R [2020] NSWCCA 73

Lodhi v R [2007] NSWCCA 360; 179 A Crim R 470

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Kahar [2016] 1 WLR 3156; [2016] EWCA 568

R v Khalid [2017] NSWSC 1365

R v Lamella [2014] NSWCCA 122

R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159

R v Martin (1999) 1 Cr App Rep (S) 477

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Texts Cited:

Nil

Category:Principal judgment
Parties: Milad Atai (Applicant)
The Crown (Respondent)
Representation:

Counsel:
G R James AM QC (Applicant)
P R McGuire SC with Y Shariff (Respondent)

Solicitors:
Executive Legal (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2016/128965
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Common Law Division
Citation:

[2018] NSWSC 1797

Date of Decision:
23 November 2018
Before:
Johnson J
File Number(s):
2016/128965

HEADNOTE

[This headnote is not to be read as part of the judgment]

Milad Atai (the applicant) was sentenced to 38 years imprisonment with a non-parole period of 28 years and 6 months, after pleading guilty to a number of terrorist offences. He sought leave to appeal against his sentence.

Count 1 was that the applicant aided, abetted, counselled or procured the commission of a terrorist act, contrary to ss 11.2(1) and 101.1(1) of the Criminal Code (Cth). The terrorist act was the murder of Curtis Cheng, a civilian employee with…

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AGLC
Atai v The Queen [2020] NSWCCA 302
Case
[2020] NSWCCA 302
Decision Date

CaseChat Overview and Summary

In this matter, Atai appeals against his sentence imposed by the court, arguing that it was manifestly excessive. The respondent, The Queen, opposes the appeal, maintaining that the sentence was appropriately severe given the nature of the crimes committed. The High Court of Australia is the forum for this appeal, and the central issue is the proportionality of the sentence in relation to the crimes committed.

The appeal hinges on two primary legal issues. First, the court must determine whether the sentencing judge erred in his treatment of the applicant's youth, specifically considering the principles relevant to terrorism offences. Second, the court must assess whether the sentence imposed was a manifest excess of the court's sentencing powers, taking into account the objective seriousness of the offences, and the need to balance this with the principle of proportionality.

The court found that the sentencing judge did not err in his treatment of the applicant's youth. It was noted that while youth is a mitigating factor, in cases of terrorism, the severity of the crime often outweighs personal circumstances. The court further considered the totality of the principle and the objective seriousness of the offences, which involved significant planning and intent to cause harm. The sentence was deemed proportionate to the crimes committed, and thus, the appeal was dismissed. The court emphasised the gravity of terrorism offences and the need for sentences that reflect this gravity, while also adhering to principles of proportionality and individualised justice.

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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