Chaarani v The King - [2023] VSCA 275

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

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 Chaarani v The King

Details

AGLC: Chaarani v The King [2023] VSCA 275
Case: [2023] VSCA 275
Decision Date: 13 November 2023

CaseChat Overview and Summary

The matter of Chaarani v The King concerns an appeal against the sentence imposed on the appellant for his involvement in a terrorist attack and related activities. The High Court of Australia was tasked with reviewing the severity of the sentence, particularly in light of the co-offender's appeal which resulted in a reduced sentence. The appellant was convicted and sentenced for attempting to engage in a terrorist attack, engaging in a terrorist attack, and conspiracy to do acts in preparation for, or planning, a terrorist attack. His co-offender received identical sentences but had their sentence reduced on appeal.

The primary legal issues the court had to address were whether the appellant's sentence for conspiracy was manifestly excessive and whether the parity principle required a reassessment of his sentence. The appellant argued that the family hardship experienced by his co-offender, which was considered in reducing the co-offender's sentence, should have been taken into account in his own case. Additionally, the appellant contended that his sentence was disproportionately harsh compared to his co-offender's reduced sentence.

The court acknowledged the importance of parity in sentencing, especially when considering the principles of fairness and equality before the law. The High Court noted that while the appellant's co-offender's sentence was reduced on appeal, the appellant's sentence had not been reconsidered in the same manner. The court found that the appellant's sentence for conspiracy was manifestly excessive and did not appropriately reflect the totality of the circumstances. Consequently, the court granted leave to appeal and allowed the appeal in respect of the conspiracy sentence. The appellant was resentenced, resulting in a total effective sentence of 32 years with a non-parole period of 24 years.

Orders