Chaarani v The King
[2023] VSCA 275
•13 November 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL | |
| S EAPCR 2023 0074 S EAPCR 2023 0075 | |
| ABDULLAH CHAARANI | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | EMERTON P, NIALL and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 October 2023 |
| DATE OF JUDGMENT: | 13 November 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 275 |
| JUDGMENTS APPEALED FROM: | [2019] VSC 498 (Tinney J) [2019] VSC 775 (Beale J) |
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CRIMINAL LAW – Appeal – Sentence – Appellant tried and sentenced for attempting to engage in terrorist attack and engaging in terrorist attack – Appellant tried and sentenced separately for conspiracy to do acts in preparation for, or planning, a terrorist attack – Where co-offender received identical sentences – Where family hardship not taken into account by sentencing judges – Where co-offender’s sentence and non-parole period reduced on appeal on ground that sentence was ‘crushing’ – Whether applicant’s sentence for conspiracy manifestly excessive – Parity – Leave to appeal granted in respect of sentence for conspiracy – Appeal allowed – Appellant resentenced – Total effective sentence 32 years – Non-parole period 24 years.
Crimes Act 1914 (Cth) ss 16A(2)(p), 19AB(2); Criminal Code Act 1995 (Cth) sch ss 11.1(1), 11.2A, 11.5(1), 101.1(1), 106.1(5); Criminal Procedure Act 2009, s 280(1)(a).
Totaan v The Queen (2022) 108 NSWLR 17, Mohamed v The Queen (2022) 367 FLR 482, Mohamed v The King [No 2] [2023] VSCA 177, considered.
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| Counsel | ||
| Applicant: | Mr DA Dann KC with Mr M McGrath | |
| Respondent: | Ms K Breckweg | |
| Solicitors | ||
| Applicant: | Lawyers Corp Pty Ltd | |
| Respondent: | Mr J Carter, Acting Solicitor for Public Prosecutions (Cth) | |
EMERTON P
NIALL JA
KAYE JA:
Introduction
On 2 November 2018, following a trial by jury, the applicant was found guilty of one count of conspiring to do an act or acts in preparation for or planning a terrorist attack. The planned offence was a mass casualty attack at Federation Square (‘Federation Square offending’). Two co-conspirators were also convicted, including Ahmed Mohamed.
Sentencing for the Federation Square offending was deferred pending the outcome of a second trial. The applicant and Mohamed were each tried on one charge of attempting to engage in a terrorist act and a one charge of engaging in a terrorist act. The offending comprised an attempt to burn down a mosque and the subsequent burning down of the mosque (‘mosque offending’).
On 9 May 2019, the applicant and Mohamed were found guilty of both charges. On 24 July 2019, Tinney J sentenced the applicant to a total effective sentence of 22 years with a non-parole period of 17 years for the mosque offending (‘Tinney sentence’).[1]
[1]R v Mohamed [2019] VSC 498, [209]–[214] (‘Reasons for First Sentence’).
On 29 November 2019, Beale J sentenced the applicant to 26 years’ imprisonment for the Federation Square offending (‘Beale sentence’). His Honour ordered that 16 years of the sentence be served cumulatively upon the Tinney sentence. A non-parole period of 28 years and 6 months was fixed.[2]
[2]R v Abbas [2019] VSC 775, [199]–[202] (‘Reasons for Second Sentence’). Pursuant to s 19AB(2) of the Crimes Act 1914 (Cth) (‘Crimes Act’), ‘a court must fix a single non-parole period in respect of all federal sentences a person is to serve or complete if … while the person is in prison and is serving or subject to a federal sentence, the court imposes a further federal sentence on the person’ with the result that they must complete ‘federal sentences the unserved portions of which, in the aggregate, exceed 3 years’.
The table below sets out the sentences imposed on the applicant:
| Charge | Offence | Max Penalty | Sentence | Cumulation |
| Tinney Sentence (imposed on 24 July 2019) | ||||
| 1 | Attempt to engage in a terrorist attack contrary to ss 11.1(1) and 101.1(1) of the Criminal Code (Cth) by virtue of s 11.2A of the Criminal Code (Cth) | Life | 8 years | 4 years |
| 2 | Engage in a terrorist act contrary to s 101.1(1) of the Criminal Code (Cth) by virtue of s 11.2A of the Criminal Code (Cth) | Life | 18 years | Base |
| Beale Sentence (imposed on 29 November 2019) | ||||
| 1 | Conspiracy to do acts in preparation for, or planning, a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cth) | Life | 26 years | 16 years on Tinney sentence |
| Global Total Effective Sentence: | 38 years | |||
| Global Non-Parole Period: | 28 years and 6 months, commencing on 22 December 2016 | |||
Mohamed was found guilty of the same offences and sentenced alongside the applicant to the same terms of imprisonment.[3]
[3]Reasons for First Sentence, [219]–[214]; Reasons for Second Sentence, [1], [200]–[203].
Both the applicant and Mohamed were sentenced on the basis that their imprisonment would cause no ‘exceptional’ family hardship, despite the tender of some material describing the implications of their incarceration for family members.
However, following the imposition of the Beale sentence, the application of s 16A(2)(p) of the Crimes Act 1914 (Cth) was held by a bench of five judges on the New South Wales Court of Criminal Appeal not to require the establishment of exceptional hardship: Totaan v The Queen.[4] Bell CJ (with whom the other four members of the bench agreed) held:
[D]ecisions … holding that a court imposing a sentence for a federal offence may only have regard to hardship to a family member or a dependant where the circumstances of hardship satisfy the epithet ‘exceptional’, are ‘plainly wrong’ and should not be followed.
…
[T]here is simply no textual support for the requirement that exceptional circumstances be shown before hardship to family members or dependants may be taken into account, or given any specified weight, either in the language and structure of s 16A itself or in the Crimes Act more generally.[5]
[4](2022) 108 NSWLR 17; [2022] NSWCCA 75 (‘Totaan’).
[5]Ibid 36 [77]–[78] (Gleeson JA agreeing at 50 [148], Harrison J agreeing at 50 [149], Adamson J agreeing at 50 [150], Dhanji J agreeing at 50 [151]).
In 2021, Mohamed sought leave to appeal the Beale sentence on the ground that it was a ‘crushing’ sentence and therefore manifestly excessive. As a result of the decision in Totaan, which was delivered after the hearing of the application for leave to appeal but before judgment was delivered, Mohamed also appealed the Beale sentence on the basis that family hardship had not been properly considered. The Crown conceded that, in light of the decision in Totaan, the wrong test for family hardship may have been applied.
On 13 July 2022, this Court granted Mohamed’s application for leave to appeal, allowed the appeal and reduced the period of cumulation Beale J had ordered upon the Tinney sentence from 16 years to 10 years.[6] In reducing the period of cumulation, the Court said:
In our view, the total effective sentence of 38 years would almost inevitably ‘induce a feeling of hopelessness’ in this applicant. The prospect of a prison sentence stretching decades into the future must inevitably affect his incentive for rehabilitation. That is, on any view, a powerful consideration.
That factor would not, of course, justify appellate intervention if a sentence of that length were otherwise necessary to serve the relevant sentencing objectives. But, for the reasons we have given, that is not this case. The judge’s findings about the applicant’s de-radicalisation and progress towards rehabilitation are very significant …[7]
[6]Mohamed [No 1] (2022) 367 FLR 482; [2022] VSCA 136.
[7]Ibid 497 [78]–[79].
The Court also considered the material on family hardship and said:
Impacts of this kind on an offender’s family are the inevitable corollary of the offender’s having been found guilty of a serious crime and sentenced to a term of imprisonment. Sometimes, of course, the implications of incarceration for family members are so significant that they must weigh heavily in the sentencing calculus. But, as this affidavit material reveals, the present case is not in that category.
Nevertheless, in arriving at our resentencing decision, we have taken into account — consistently with the Director’s concession — all of the matters placed before this Court in relation to the implications for the applicant’s family.[8]
[8]Ibid 500 [99]–[100].
In November 2022, Mohamed sought leave to reinstate his application for leave to appeal the Tinney sentence on the basis that family hardship had not been properly considered by the sentencing judge.
The Crown again conceded that family hardship may not have been properly taken into account by the sentencing judge.[9] However, it was submitted that Mohamed’s sentences, as modified by this Court when it allowed Mohamed’s appeal against the Beale sentence, more than adequately captured the entirety of Mohamed’s offending. The Crown contended that even if it was necessary to adjust the Tinney sentence to include a reduction for family hardship, that reduction should be minimal.[10]
[9]Mohamed [No 2] [2023] VSCA 177, [22] (Emerton P, Niall and T Forrest JJA).
[10]Ibid [27]–[28].
The Court refused Mohamed leave to appeal the Tinney sentence on the basis that there was no reasonable prospect that it would reduce the total effective sentence, despite the sentencing error.[11] The Court stated:
[W]hen this Court resentenced [Mohamed] to a new total effective head sentence and new non-parole period in the first appeal, it imposed a sentence that more than adequately captures the entirety of the offending and the entirety of the relevant factors in mitigation, including the post-Totaan concept of family hardship.[12]
[11]Ibid [32].
[12]Ibid [29].
The Court considered that
whilst the [Tinney] sentence failed to take into account a mildly relevant fact to sentencing, the total effective sentence of 32 years imprisonment with a non-parole period of 24 years is modest indeed for the overall criminality exhibited by the applicant.[13]
[13]Ibid [30].
Proposed grounds of appeal
The applicant now seeks extensions of time within which to file applications for leave to appeal the Tinney sentence and the Beale sentence.
The proposed ground of appeal against the Tinney sentence is that
[t]he sentencing judge failed to take into account the effects of incarceration upon the applicant’s family or dependents as required by section 16A(2)(p) of the Crimes Act 1914 (Cth).
The applicant’s proposed grounds of appeal against the Beale sentence are as follows:
1. The sentence was manifestly excessive.
2.The sentencing judge failed to take into account the effects of incarceration upon the applicant’s family or dependents as required by section 16A(2)(p) of the Crimes Act 1914 (Cth).
3.The sentencing judge erred by having regard to the erroneous [Tinney sentence] in determining the start date for [the Beale sentence] and the single non-parole period.
Accordingly, the Totaan error is in play in both appeals. The Beale sentence is also challenged, in substance, on the ground that there is a marked discrepancy between the sentences ultimately imposed on Mohamed following appeal and those imposed on the applicant.
Before us, the Crown submitted, in respect of both the Tinney and Beale sentences, that there was a basis to conclude that the sentencing judge did not give any weight to the purported hardship to the applicant’s family members. In other words, family hardship was not considered in the manner contemplated by Totaan. However, it was submitted that the purported hardship was of such negligible significance that the error would not lead the Court to impose a less severe sentence.
More significantly, the Crown conceded that, as a result of this Court reducing the period of cumulation ordered by Beale J for Mohamed, error had been established in respect of the applicant and the sentence imposed on the applicant by Beale J was manifestly excessive in that it infringed the totality principle. In its written submission, the Crown made the following concession:
It is accepted that there is very little to distinguish the [a]pplicant and [Mohamed] in terms of their efforts towards rehabilitation, their roles in the offending and the factors relevant to an assessment of their respective prospects of rehabilitation.
In light of this concession, and consistently with the way in which the application for leave to appeal was argued before us by senior counsel for the applicant, the principal question before us is one of parity, which is raised by ground 1 in the appeal against the sentence imposed by Beale J. The effect of family hardship on the sentencing discretion is, as this Court held in the Mohamed appeals, at best, marginal. Moreover, there being no significant difference in this regard between the circumstances of the applicant and those of Mohamed, the effect of family hardship on the ultimate sentencing disposition is wrapped up in the question of parity.
Accordingly, we propose to dispose of the two applications for leave to appeal by reference to the principle of parity.
Discussion
The sentencing principle of parity is ‘based on the broad principle of equal justice’.[14] Its purpose is to ensure consistency in punishment.[15] Significant disparities in sentences ‘should be capable of a rational explanation’.[16] As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:
Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.[17]
[14]Dawid v DPP [2013] VSCA 64, [43] (Kaye AJA).
[15]Kellway (a pseudonym) v The King [2023] VSCA 109, [124] (Emerton P, Niall and Kaye JJA); Abdou v The Queen [2015] VSCA 359, [62] (Redlich and Beach JJA, Beale AJA). See also Green v The Queen (2011) 244 CLR 462, 473 [28] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49; Nipoe v The Queen [2020] VSCA 137, [38] (Maxwell P, Niall and Emerton JJA).
[16]R v Tien [1998] VSCA 6, [40] (Tadgell JA).
[17](2001) 207 CLR 584, 608 [65] (emphasis in original); [2001] HCA 64.
The applicant submits that the Beale sentence is manifestly excessive for the same reason that this Court held the Beale sentence to be manifestly excessive in respect of Mohamed. He contends that nothing relevantly distinguishes his circumstances from those of Mohamed:
(a)Beale J found that both were active participants in the conspiracy for the whole period.
(b)Beale J found that both engaged in the same or similar acts pursuant to that conspiracy.
(c)Beale J found that both ‘were on a par with Ibrahim in terms of [their] roles in the conspiracy’.
(d)Beale J found that both fell to be sentenced for ‘an upper range example of the offence in question’.
(e)Both gave evidence at the plea hearing before Beale J publicly renouncing IS and violent jihad. Beale J found both to have shown contrition and made some reparation as a result. In the course of their testimony, both also admitted their guilt, thereby forfeiting their rights to appeal their convictions. Beale J found that both were on the path of deradicalisation.
(f)Tinney J imposed the same sentence upon both of them.
(g)Both had similar mitigating factors.
More specifically, the applicant argues that the Court’s reasoning about the ‘crushing’ nature of the sentence imposed on Mohamed applies equally to him, given that the findings that were made by the sentencing judge about Mohamed’s rehabilitative efforts were almost identical to those made in respect to him.
The applicant further argues that nothing has occurred since the sentences were imposed to distinguish him from Mohamed. In response to a submission by the Crown that Mohamed’s family had suffered slightly greater hardship than the applicant’s, the applicant submits that his custody has been more burdensome than Mohamed’s. According to the applicant, this brings his and Mohamed’s positions ‘back together’. In this regard, the applicant relied on an affidavit affirmed by his solicitor on 30 October 2023 in which his solicitor deposed that the applicant had spent a total of 16 consecutive months in solitary confinement without ever having received an explanation.
We accept that there is very little to distinguish the applicant and Mohamed in terms of the seriousness of their offending, their roles in the offending, the factors relevant to an assessment of their respective prospects of rehabilitation and the impact of their necessarily very long incarceration on their families. The Crown did not argue to the contrary. Indeed, it made submissions to that or similar effect.
Disposition
Accordingly, applying the principle of parity, the Beale sentence must be modified to reduce the period of cumulation on the Tinney sentence from 16 years to 10 years, giving a total effective sentence for both sets of offences of 32 years and a new non-parole period of 24 years.
This reduction in the period of cumulation and the total effective sentence in no way diminishes the seriousness of the applicant’s offending, particularly the Federation Square offending. Had the acts that were planned been carried to fruition, many innocent people would have been killed or seriously maimed.
The extent and seriousness of the applicant’s involvement in the Federation Square offending is illustrated by the following:
(a)The applicant and Mohamed accessed instructions for making improvised explosive devices (‘IEDs’). The applicant took photographs of bomb-making instructions published in an online terrorist magazine. Mohamed stored a copy of that magazine on his phone and accessed instructional videos about bomb-making.[18]
(b)The applicant and Mohamed were involved in making and/or attempting to make an IED. Beale J found that Mohamed wanted to use screws and nails for shrapnel, as suggested in the bomb-making instructions both he and the applicant had accessed. His Honour also found that the applicant and Mohamed spent many hours together constructing or attempting to construct an IED. Later, Mohamed and another made or attempted to make an IED with tools that included a drill the applicant had provided. Mohamed later spoke to the applicant over the phone about a failed attempt to make triacetone triperoxide, a highly explosive substance. The applicant and Mohamed admitted in their evidence at their plea hearing before Beale J that they had successfully made a working IED.[19]
(c)The applicant visited Clonbinane, a remote location, three times to test IEDs. Mohamed was present on each occasion.[20]
(d)The applicant, with Mohamed’s encouragement, took steps to obtain a firearms licence. He registered his interest with the relevant government department in hunting pest animals on Crown land as a precursor to obtaining a firearms licence. He later rang Sunbury Police Station and inquired about registering for a firearms course.[21]
(e)A Muela Mirage hunting knife was seized from the applicant’s premises after his arrest. The applicant also procured a Gerber machete.[22]
(f)The applicant, Mohamed and two others spent time reconnoitring Federation Square, Flinders Street Station and St Paul’s Cathedral.[23]
[18]Reasons for Second Sentence, [8]–[14].
[19]Reasons for Second Sentence, [17]–[23].
[20]Reasons for Second Sentence, [24]–[27].
[21]Reasons for Second Sentence, [29]–[34].
[22]Reasons for Second Sentence, [36]–[37].
[23]Reasons for Second Sentence, [40].
Despite the applicant’s renunciation of the ideology that led him to believe that such cruel and destructive conduct was warranted, and despite his prospects of rehabilitation, the principles of just punishment, denunciation and general deterrence remain very important, as does the need for community protection. The applicant must, and will, serve a very long period of imprisonment for his offending.
Finally, as there is no reasonable prospect that a less severe sentence would be imposed in respect of the mosque offending,[24] the extension of time that has been sought to appeal the Tinney sentence will be refused.
[24]See Criminal Procedure Act 2009, s 280(1)(a).
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