Director of Public Prosecutions (Cth) v El Sabsabi
[2017] VSCA 160
•23 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0257
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| HASSAN EL SABSABI | Respondent |
---
| JUDGES: | REDLICH, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 June 2017 |
| DATE OF JUDGMENT: | 23 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 160 |
| JUDGMENT APPEALED FROM: | [2016] VSC 740 (Lasry J) |
---
CRIMINAL LAW – Appeal against sentence – Crown appeal – Performance of acts preparatory to the commission of foreign incursion offences (2 charges) – Whether sentences of 44 days’ imprisonment and 2 year community correction order were manifestly inadequate – Extent of rehabilitation – Relevance of delay – Relevance of general deterrence, specific deterrence, protection of the community, denunciation and just punishment – Relevance of radical beliefs in sentencing for offences not containing support for terrorism as an element of the offending – Whether judge erred in not imposing sentences that were appropriate in all the circumstances of each offence – Whether judge erred in concluding that respondent’s rehabilitation was well advanced – Whether sentences imposed were wholly outside the range of permissible sentences open to the sentencing judge – Appeal dismissed – Crimes (Foreign Incursion and Recruitment) Act 1978 (Cth), s 7(1)(e) – Crimes Act 1914 (Cth), ss 16A(1) and 17A(1).
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms W J Abraham QC with Ms K Breckweg | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
| For the Respondent | Mr S Bayles | Stary Norton Halphen |
REDLICH JA
PRIEST JA
BEACH JA:
On 9 September 2015, the respondent pleaded guilty in the Supreme Court to two rolled-up charges of performing acts preparatory to the commission of a foreign incursion offence, contrary to s 7(1)(e) of the Crimes (Foreign Incursion and Recruitment) Act 1978 (Cth) (‘the CFIRA’). The maximum term of imprisonment for the offence of performing acts preparatory to the commission of a foreign incursion offence under s 7(1)(e) of the CFIRA is 10 years.[1]
[1]On 1 December 2014, the CFIRA was repealed. The offence created by s 7(1)(e) of that Act is now contained in s 119.4(1) of the Criminal Code 1995 (Cth) (‘the Code’). The maximum term of imprisonment for an offence against s 119.4(1) of the Code is life imprisonment.
A plea hearing was conducted on 4 December 2015. On 7 December 2016, the respondent was sentenced to a term of imprisonment of 44 days on charge 1, and a two-year community correction order (‘CCO’) on charge 2.[2] The total effective sentence was thus 44 days’ imprisonment plus the two-year CCO. The 44 days’ imprisonment was time served in custody prior to the respondent being sentenced. The CCO included conditions that the respondent would:
[2]R v El Sabsabi [2016] VSC 740 (‘Reasons’).
(a) complete 252 hours of unpaid community work;
(b) engage in mental health treatment;
(c) participate in the Community Integration Program facilitated by the Islamic Council of Victoria;
(d) be supervised by his local community corrections office;
(e) be prohibited from contacting Abedallah Karram;
(f) be subject to judicial monitoring at six-month intervals during the period of the CCO.
The Director of Public Prosecutions (Cth) has appealed against the sentence imposed by the judge on the following grounds:
1.The learned sentencing judge failed to comply with section 16A( 1) of the Crimes Act 1914 (Cth) by not imposing a sentence for each offence which was of a severity appropriate in all the circumstances of the offence.
2.The learned sentencing judge erred in finding that the Respondent's rehabilitation was ‘well advanced’.
3.The sentence imposed in respect to charge 1 is manifestly inadequate as:
(a)the sentence does not adequately reflect the nature and circumstances of the offending;
(b)the sentence does not adequately reflect the principles of general deterrence, specific deterrence, denunciation and protection of the community; and
(c)the sentencing judge gave undue weight to delay and to the subjective matters of the Respondent including his rehabilitation and youth.
4.The sentence imposed in respect to charge 2 is manifestly inadequate as:
(a)the sentence does not adequately reflect the nature and circumstances of the offending;
(b)the sentence does not adequately reflect the principles of general deterrence, specific deterrence, denunciation and protection of the community; and
(c)the sentencing judge gave undue weight to delay and to the subjective matters of the Respondent including his rehabilitation and youth.
Circumstances of the offending
In 2012 the respondent became acquainted online with Abedallah Karram (‘Karram’), an American citizen, and the two became friends. They frequently discussed topics of common interest including Islam and the political situation in Syria, expressing support for applying violent extremist ideology to remove President Assad from power. Over the course of these exchanges, Karram discussed with the respondent his intention of travelling to Syria to fight the Assad regime. Karram asked the respondent for financial assistance to enable him (Karram) to do this. The respondent agreed to assist.[3]
[3]Reasons [8].
Between 24 June 2013 and 17 September 2014 the respondent, both personally and through a proxy, made 11 discrete money transfers to Karram, totalling A$15,999.00. The transfers made for the purpose of facilitating Karram’s travel to Syria formed the basis of charge 1. The remaining transfers, the purpose of which was to enable Karram to engage in hostile activities against the Syrian government formed the basis of charge 2. The amounts, dates and details of each of the 11 transfers were as follows:
No.
Date
$AUD
Nominated recipient details
Charge
1
24/06/13
$851
Karram Abedallah of 460 Bayridge Ave, Brooklyn NY
1
2
18/07/13
$636
Karram Abedallah of 460 Bayridge Ave, Brooklyn NY
1
3
22/10/13
$1585
Hamin, Hosni Abdel, Egypt. Born 23 July 1963. Message says ‘For Abedallah Karram’
2
4
2/01/14
$1130
Marius Auerbacher of Hatay, Turkey – purpose of transfer ‘family support’
2
5
1/03/14
$1389
Mahmoud Ibrahim Khatib of Hatay Turkey with a message ‘Abedallah Karram’
2
6
25/03/14
$870
Mahmoud Ibrahim Khatib of Hatay, Turkey with a message ‘Abedallah Karram’
2
7
17/04/14
$1524
Initially Mahmoud Ibrahim Khatib of Hatay, Turkey then changed to Mohamed Saleh on 26/4/14
2
8
2/06/14
$1360
Abdulrahman Alomar of Hatay, Turkey
2
9
4/07/14
$1080
Abdulrahman Alomar of Hatay, Turkey
2
10
11/08/14
$1100
Eid Saleh of Hatay Turkey (Syrian passport details)
2
11
17/09/14
$4474
Basem Alomar born 5 March 1975 of Hatay, Turkey
2
TOTAL $15,999
The respondent’s correspondence with Karram included updates from Karram on his exploits in Syria. This included the provision by Karam of graphic photos seeming to depict the slaying of pro-government soldiers. For example, on 2 November 2013, Karram posted images on Facebook showing him standing over two deceased males dressed in military uniform, lying near pools of fresh blood.[4]
[4]Ibid [13]–[14].
During the relevant period the respondent, at times, posted pro-jihadi messages on social media.[5] The sentencing judge also noted that ‘there seems to have been a period of time when [the respondent] resolved to fly to Syria to take up what [he] saw to be the cause of Allah.’[6]
[5]Ibid [16]–[17].
[6]Ibid [19].
Communications between the respondent and Karram were lawfully intercepted by the Australian Federal Police (‘AFP’) and formed the majority of the evidence supporting the two charges against him.[7] On 30 September 2014, almost two years into the respondent’s acquaintance with Karram and two weeks after the respondent’s last transfer of funds to Karram, the respondent was arrested by Australian Federal Police in his home.
[7]Ibid [7].
Circumstances of the respondent
The respondent was 24 years of age at the time of sentencing. He was 21 when he first met Karram, and 22 to 23 during the period of his offending. Other than the offending for which he pleaded guilty, the respondent has no other relevant criminal history. The judge noted that the respondent had previous convictions that related to traffic offences, before observing that these convictions were not relevant to the sentence to be imposed by him.[8]
[8]Ibid [36].
The respondent was born in Williamstown and grew up in Altona North. As the judge described it, the respondent was the son of a hard-working migrant family who did their best to make his childhood cohesive and settled.[9]
[9]Ibid [38].
Up until the time of his arrest, the respondent and his wife resided with the respondent’s parents and the respondent’s four brothers. The respondent was employed at a pizza restaurant.
Upon his arrest on 30 September 2014, the respondent immediately admitted making the payments that are the subject of his offending. As the judge noted, the respondent’s reason for making these payments ‘seemed to include [his] belief that people with whom [he was] sympathetic were being brutalised in Syria’.[10]
[10]Ibid [55].
Following his arrest, the respondent was in custody from 30 September 2014 until 12 November 2014 when he was granted bail. Initially, the respondent’s bail included conditions that required him to report daily to police. On 18 August 2015, this condition was varied to reporting three times per week. The respondent remained on bail until he was sentenced by the judge.
A contested committal was conducted on 17 and 18 August 2015. As we have already noted, the respondent pleaded guilty on 9 September 2015. While the plea hearing was conducted on 4 December 2015, sentencing was deferred to await the outcome of this Court’s decision in Director of Public Prosecutions v Thomas[11] — concerning whether a sentencing benefit, on the basis that a plea of guilty has a utilitarian value, was to be given to an accused who pleaded guilty to a Commonwealth offence.
[11][2016] VSCA 237 (‘Thomas’).
The plea hearing
On the plea, the respondent tendered a report from a psychologist, Ms Toohey, a letter from the Australian National Imams’ Council, four documents in the form of testimonials or character references, and an unsworn letter written by the respondent. When tendering the unsworn letter, counsel for the respondent said that it had been indicated to him that the prosecutor objected to its tender. The judge said that he had already been provided with a copy of the document and that he would hear from the prosecutor later. The prosecutor did not say anything at that time, and no submission was later made by her that the unsworn letter was not admissible and should not have been received.
On the plea hearing, the prosecutor submitted that the objective seriousness of the respondent’s offending was very high. In support of this submission, the prosecutor referred to statements made by the respondent that showed that he was a supporter of terrorist organizations, killing in the name of Allah and the creation of an Islamic caliphate. It was submitted that it was particularly significant that there was no evidence on the plea that the respondent had renounced these views. The prosecutor contended that, as the respondent did not give evidence on the plea, what was said by the respondent’s counsel were merely untested assertions. The report of Ms Toohey was said to be ‘entirely based on self-serving statements’. In effect, the prosecutor invited the judge not to rely upon the respondent’s self-serving statements and any opinion based upon those untested assertions.
The judge’s reasons
The judge commenced his reasons for sentence with a detailed description of the circumstances of the respondent’s offending.[12] As to the nature and gravity of the respondent’s offending, the judge said:
It is, in my opinion, significant that you were sending money to Karram believing that he was engaging in hostile activities, to use the language of the legislation and, in particular, believing that people were being killed. You were not deterred by the belief that that was occurring. I accept that it is not clear beyond reasonable doubt as to the role that was being played by Karram notwithstanding the material in the prosecution brief. However you believed what he was telling you about the role he was playing, and you acted on what he told you believing it to be true and, furthermore, approved of what he was saying was occurring.[13]
[12]Reasons [5]–[24].
[13]Ibid [25].
The judge then summarised submissions made on behalf of the respondent that the respondent’s offending was less serious ‘because of the autonomy of Karram’, and that the respondent was not the ‘motivator or organiser of the activities that Karram engaged in … [or] part of any group or organisation’.[14] The judge then set out the prosecutor’s submission in response:
She pointed out that you knew of the illegality of your actions having searched an Australian Government website which confirmed JAN was a listed terrorist organisation, and that consequently the circumstances of your offending required that you be sentenced to a period of imprisonment. Correctly, she submitted that it was significant that you explicitly enquired whether any of the funds you had sent had been used to kill in the name of Allah.[15]
[14]Ibid [26].
[15]Ibid [27].
The judge then turned to a submission made by the prosecutor that the judge ‘should take some guidance from terrorism offences in imposing … sentence on [the respondent]’.[16] The judge rejected this submission, adhering to an opinion he had earlier expressed that the objective seriousness of the relevant conduct could be assessed without reference to offences which are different and which carry a different maximum penalty. In rejecting the prosecutor’s submission, the judge noted that, in R v Succarieh,[17] Atkinson J had also rejected a submission to the same effect in a similar matter under the CFIRA.[18]
[16]Ibid [28].
[17]Unreported, Supreme Court of Queensland, Atkinson J, 2 November 2016.
[18]Reasons [29].
The judge said that punishment, deterrence, denunciation and protection of the community were well understood in significant sentencing principles. The judge then observed that, despite the respondent’s views at the time of his offending, the respondent was not planning any terrorist activity in Australia, and that there was no evidence that the respondent was or is a threat to community safety.[19] The judge went on to say, though, that however strongly the respondent felt about injustices that he was aware of in Syria, the fact was that the respondent had decided to contribute ‘a relatively significant sum of money to a person to enable him to engage in hostile activities in that country which appeared to [the respondent] to involve violence and killing’. As the judge observed, such conduct has been unlawful in this country ‘for many years and for good reason’. The judge then concluded that the respondent's offending was ‘objectively serious’.[20]
[19]Ibid.
[20]Ibid [30].
Next, the judge referred to a submission made on behalf of the respondent that the failure of the AFP to intervene and stop the respondent offending, when the AFP knew of the respondent’s activities in February 2014, had ‘implications for the objective assessment of the seriousness of [the respondent’s offending]’. The respondent’s counsel submitted that it would be incongruous for the prosecution to assert that the respondent’s offending constituted a serious example of the offence under s 7(1)(e) of the CFIRA in circumstances where ‘the AFP stood by and allowed further offences to be committed over a seven month period when earlier intervention was available’.[21] While the judge agreed with the submission that the decision of the AFP to refrain from taking action at the earliest possible opportunity was ‘indicative to some degree of their view of the gravity of the offending’, the judge said that it was, however, his assessment of the seriousness of the respondent’s conduct that was significant for the purpose of imposing sentence.[22]
[21]Ibid [31]–[32].
[22]Ibid [34]–[35].
The judge summarised the respondent’s personal circumstances,[23] before turning to the issues of remorse and the respondent’s likelihood of reoffending. On those issues, the judge said:
[23]Ibid [36]–[42].
You pleaded guilty at a relatively early stage. However, that occurred after a contested committal but before any initial directions hearing in this Court. Aside from the utilitarian benefit of an early plea to which I will later refer, pleas of guilty are to be taken as evidence of some remorse on the part of the offender.
The aim of the rehabilitative process is always to reshape the attitudes and behaviours of an offender to a point where they are able to function productively and harmoniously within the community without posing a risk of reoffending.
Also presented during the plea was a report from Abdulazim Afifi from the Australian National Imams Council who has known you for some time and describes you as sincerely remorseful. References also came from your wife, your cousin and friends all of whom will support you in the future which is, of course, encouraging.
For you, rehabilitation may involve some form of what some describe as ‘deradicalisation’. That process will necessarily require you to channel the empathy you apparently feel for those who live in a far less fortunate society than your own, into non-violent constructive efforts. There is no magic process of a person being ‘deradicalised’. Despite the recent submissions of the prosecution, the continuity of your family situation over the last 12 months whilst you have been on bail is very encouraging.
Amongst the material your counsel relied on is a report from Monique Toohey who is a clinical psychologist. Her report describes that she has been administering treatment to you between February and November 2015. For reasons I am not clear about, Ms Toohey did not give evidence and that does affect the weight to be placed on that material. She appears to diagnose symptoms of an adjustment disorder.
According to Dr Toohey’s psychological report your likelihood of reoffending is low. Dr Toohey supports this conclusion by making reference to your tight knit and supportive family, in particular your happy marriage. She also refers your present avoidance of people espousing radical and violent opinions. Furthermore she notes your recently acquired understanding that you ‘must direct [your] community mindedness and altruism to organisations that are legitimate’.
The choices you made that led to your offending behaviour were naïve and misguided and the material does suggest that you now realise that. However, there remains the difficulty that I am unsure that the views you held which led to you committing these offences have now been totally discarded. As the prosecutor argued, it would have been desirable to hear evidence about that which could then be tested by cross examination. That did not occur. On the other hand, the events which have occurred since your arrest do not give any indication that you remain adherent to the views you expressed at the time.[24]
[24]Ibid [45]–[51] (citation omitted).
The judge referred to the respondent’s explanation for his offending given at the time of his arrest, noting that the reasons ‘seemed to include’ the respondent’s belief that people with whom he was sympathetic were being brutalised in Syria. The judge referred to the respondent’s counsel’s submission that this motivation was ‘more noble than might ordinarily be the case’.[25] The judge then said:
While I agree this motivation is perhaps more honourable than others I have encountered, it by no means excuses your actions nor should it temper the degree of remorse expected from you.[26]
[25]Ibid [55].
[26]Ibid [56].
The judge referred to the respondent’s unsworn letter, tendered on the plea, as recounting how harrowing the respondent’s time in custody was before he was released on bail.[27] The judge, however, noted that he was ‘somewhat troubled’ by the contents of the letter which, as the judge put it:
rather than recognising your foolish and potentially very dangerous offending for what it is, seems to suggest you consider yourself to be the victim of unfortunate consequences.[28]
[27]Ibid [54].
[28]Ibid [57].
The judge again observed that, aside from the respondent’s rehabilitation, he also had to consider the countervailing considerations of general deterrence, specific deterrence and denunciation.[29]
[29]Ibid [54].
As to the delay between the plea hearing in December 2015 and the passing of sentence, the judge said:
I note that at the conclusion of the plea hearing in December 2015, and over the objection of the prosecutor, I extended your bail and you have remained on bail ever since. As I would have expected, you have not committed any offences during that time and, to your credit, you have complied with your bail conditions that included regular police reporting. Obviously you will have been concerned with when the outcome of this sentencing hearing would be known and I accept that continuing uncertainty would have been very difficult for you.
The delay I have identified and the circumstances in which it occurred is not insignificant and I have taken it into account in the sentence I will shortly impose on you.[30]
[30]Ibid [63]–[64].
In sentencing the respondent to the CCO and term of imprisonment to which we have already referred, the judge said:
Section 16A(1) of the Crimes Act (1914) (Cth) requires me to consider whether the sentence to be imposed on you is of a severity appropriate in all the circumstances of the offence. Despite your age and lack of prior convictions, I had originally concluded that it was simply not feasible to impose a sentence on you that amounts to imprisonment only for the period of the time you have already served or to impose a Community Correction Order as was urged upon me on your behalf. In the times in which we live, denunciation as well as specific and general deterrence are particularly important sentencing factors in relation to offences of this nature involving as they do actions to assist another to become a foreign fighter in the conflict which continues in Syria. I had originally considered that a further term of imprisonment was the only course I could follow.
However, on reflection and given the unusually long time that has passed since your plea, it is now acceptably clear that your rehabilitation is well advanced. Your law-abiding conduct during the period of delay is evidence of that. In my opinion it would not only be counter-productive to you but also to the community to return you to custody because, in all likelihood it would set back your rehabilitative progress. I have now reached the opinion that a two year Community Correction Order (CCO) with, among other conditions, regular judicial supervision, meets the sentencing requirements that are imposed on me. The combination sentence of CCO and imprisonment for a single offence provided for in section 44 of the Victorian Sentencing Act 1991 is not available for Federal offences. However, as I understand it, I am not prevented from imposing a CCO for one offence and a sentence of imprisonment on the other offence.[31]
[31]Ibid [65]–[66].
Appellant’s contentions
The appellant submitted that the judge made two specific errors: first, the judge failed to comply with s 16A(1) of the Crimes Act 1914 (‘the Act’) by not imposing a sentence for each offence which was of a severity appropriate in all the circumstances of the offence (ground 1); and secondly, the judge erred in finding that the respondent’s rehabilitation was ‘well advanced’ (ground 2). The appellant then submitted that, in any event, the sentences imposed on each charge were manifestly inadequate (grounds 3 and 4).
In support of ground 1, the appellant observed that s 17A of the Act prohibited a court from passing a sentence of imprisonment unless the court was satisfied that no other sentence was appropriate. It was then submitted that if the judge formed the view that imprisonment was the only available disposition for charge 1 then, because charge 2 was significantly more serious than charge 1, the judge was required by s 16A(1) to impose another term of imprisonment. The fact that the judge had sentenced the respondent to imprisonment on charge 1, but not then sentenced him to imprisonment on charge 2, revealed that the judge had imposed sentences on the two charges that were ‘result driven’, without regard to the terms of the Act.
In support of ground 2, the appellant submitted that there was no evidentiary basis for the judge’s conclusion that the respondent’s rehabilitation was ‘well advanced’.[32] The appellant submitted that, apart from the respondent’s pleas of guilt, ‘there was scant evidence that the respondent had done anything to address his motivations for offending or to advance his rehabilitation’.
[32]Ibid [66].
In support of grounds 3 and 4, the appellant submitted that it was not open to the judge to impose the sentences imposed in light of the factual findings made by the judge[33] and the following matters:
[33]Ibid [5], [25], [27], [30] and [43].
(1)The offences reflect a course of conduct extending over 15 months.
(2)The offending involved a degree of planning. The respondent was determined to transfer what money he could to Karram to support and promote his activities and took whatever steps he considered necessary to obtain the money. He actively sourced the money from friends and associates and involved several others in the collection and remittance of the monies. He encouraged and urged others to share his extremist views and act upon them.
(3)Throughout the entire course of the two offences, the respondent not only gave money to Karram but also gave him constant encouragement to engage in hostile activities and provided him with moral support.
(4)The respondent expressed desires to travel to Syria himself to engage in the conflict as a foreign fighter — his funding of Karram was, in effect, a de facto means by which he was able to fight and participate in the Syrian conflict as a ‘mujahed’.
(5)The respondent funded a foreigner to fight with well-publicised and known organised terrorist groups that adhere to extreme violent views of Islam and are engaged in an ideological war to establish an Islamic caliphate by any means. He knew these organisations had a proven record for terrorist attacks.
(6)The respondent was aware that the Australian government and the broader community denounces terrorism in all its various manifestations and rejects the extremist ideology that motivates JAN[34] and ISIS and its supporters. He was aware that there was a risk that his extremist views, acts and communications may come to the attention of the authorities but he continued regardless. He was warned by others and he searched the internet and viewed Australian government websites containing information about the terrorist organisation JAN.
(7)The respondent was aware of the illegality of his conduct; he changed the Facebook accounts used to communicate with Karram, and gave instructions to his wife to delete computer data and discard evidence of money transfers when police searches were imminent. Whilst his Honour was not satisfied as to the role being played by Karram, he did accept that the respondent believed what Karram was telling him as to the role he was performing in engaging in the conflict and he approved of what Karram purported to be doing.
[34]Jabhat al-Nusra.
In support of her complaint of manifest inadequacy, the appellant submitted that the judge made a number of specific errors. First, it was submitted that the judge’s conclusion that there was no suggestion that the respondent was a danger to the community, because he was not planning a terrorist activity in Australia, failed to recognise the nature of the offending, what the offending facilitated and the nature of the extreme beliefs held by the respondent. As regards the danger to the community, the appellant relied upon the decision of R v F[35] as authority for the proposition that the question of the danger to the community properly fell to be considered by reference to the community as a whole, and not just the Australian community.
[35][2007] 2 Cr App R 3 (‘R v F’).
Secondly, the appellant submitted that the judge allowed the respondent’s subjective circumstances and other mitigating factors to overshadow the objective seriousness of the respondent’s offending.
Thirdly, the appellant submitted that it was apparent from the judge’s reasons for sentence that his Honour accepted that the objective seriousness of the offending was reduced because the respondent committed the offences for a ‘noble cause’ motivated by his concern for the political situation in Syria, and that this motivation was more honourable than that of other offenders. The appellant submitted that this was not the correct approach. The fact that the respondent considered his conduct was ‘the right thing to do’ did not make the offending less serious. The nature of the conflict and the ‘justness’ of the opposition to the Assad regime did not have any bearing on the objective gravity of the respondent’s offences. Moreover, and in any event, the respondent, it was submitted, was not a champion of democracy, supporting as he did the establishment of an Islamic caliphate in the region.
Fourthly, in so far as the judge relied upon the failure of the police to intervene at an earlier stage of the respondent’s offending as indicative of their view of the gravity of the respondent’s conduct, such a factor (in the absence of evidence) was not an appropriate consideration in assessing the seriousness of the respondent’s offending.
Fifthly, there was nothing about the delay between plea and sentence which could properly change an otherwise inappropriate sentence into an appropriate one.
Sixthly, there was no psychological or other evidence to demonstrate that the respondent had been ‘deradicalised’ — something that, in a case of this nature where the offender’s fervent and extremist Islamic views were the motivation for his offending, would provide greater support for an argument that the respondent had been rehabilitated during the period of the delay.
In summary, the appellant submitted that, in all the circumstances of the case, the sentences imposed on the respondent were so manifestly inadequate that this Court should intervene and resentence the respondent in order to establish proper standards of punishment for the offences to which the respondent pleaded guilty.
Respondent’s contentions
In answer to the appellant’s submissions on ground 1, the respondent contended that it was open to the judge to impose the sentences imposed. Further, the respondent noted that s 17A(3) of the Act provides that the failure of a court to comply with s 17A ‘does not invalidate any sentence’. The respondent submitted that even if the Court found a sentencing error of the kind alleged in ground 1 then the Court should decline to intervene, either on the basis that no different sentence should be imposed[36] or on the basis of the residual discretion.[37] As the respondent put it:
If his Honour had imposed the two sentences in reverse order then there could be no complaint under this ground, but the sentence would effectively remain the same. The appellant’s argument under this ground does not demonstrate that a different sentence should be imposed.
[36]Section 289(1)(b) of the Criminal Procedure Act 2009.
[37]DPP v Karazisis (2010) 31 VR 634, 657–660 [99]–[115] (‘Karazisis’).
In answer to the appellant’s arguments on ground 2, the respondent submitted that the judge was well justified in concluding that the respondent’s rehabilitation was ‘well advanced’. The respondent relied upon the following matters in support of that submission:
·The respondent was a youthful offender.
·The respondent had no prior convictions.
·The respondent pleaded guilty.
·The respondent was on bail for a period of over two years during which time he did not reoffend in any way. His bail conditions included daily reporting from 15 November 2014 to 18 August 2015, and reporting three times per week thereafter, and not to access the internet for the purposes of using any social media. During this time on bail, the respondent worked full time in his family’s pizza business.
·The ultimate measure of rehabilitation is an offender who is able to exist in the community by being a functioning and contributing member of society and by not reoffending.
·The respondent demonstrated this for a period of over two years.
·Material tendered on the plea hearing showed the respondent’s commencement of psychological counselling (11 sessions with Ms Toohey), and the respondent’s engagement with Sheikh Abdulazim Afifi, the president of the Australian National Imams Council.
As to manifest inadequacy (grounds 3 and 4), the respondent observed that each offence carried a maximum penalty of 10 years’ imprisonment. The respondent had pleaded guilty at a relatively early stage and had no relevant prior convictions. He spent 44 days in custody in a maximum security unit, and a further two years on bail with stringent bail conditions, during which time there was no reoffending of any type. While the offending was serious, in all the circumstances, it could not be said that the sentences were wholly outside the permissible range.
If the Court found that the sentences were manifestly inadequate, the respondent contended that the Court should decline to intervene on the basis of the residual discretion for the following reasons:
·The respondent’s youth.
·The importance of rehabilitation.
·The delay, now of two and a half years since the end of the respondent’s offending.
·The respondent has commenced his CCO. He has commenced rehabilitative programs including a ‘deradicalisation’ program. This rehabilitative program, and the respondent’s rehabilitation, is in the best interests of the community.
Objective seriousness of the offences
The offences for which the respondent was sentenced were offences against s 7(1)(e) of the CFIRA. That section relevantly provided:
(1) A person shall not, whether within or outside Australia:
…
(e)give money or goods to, or perform services for, any other person or any other body or association of persons with the intention of supporting or promoting the commission of an offence against section 6;
Section 7(1A) of the CFIRA provided:
(1A)A reference in subsection (1) to the commission of an offence against section 6 is a reference to the doing of an act that would constitute, or would but for subsection (6)(ii) constitute, an offence against section 6.
Section 6 of the CFIRA relevantly provided:
6.Incursions into foreign States with intention of engaging in hostile activities
(1)A person shall not:
(a)enter a foreign State with intent to engage in a hostile activity in that foreign State; or
(b)engage in a hostile activity in a foreign State.
(2)A person shall not be taken to have committed an offence against this section unless:
(a)at the time of the doing of the act that is alleged to constitute the offence, the person:
(i)was an Australian citizen; or
(ii)not being an Australian citizen, was ordinarily resident in Australia; or
(b)the person was present in Australia at any time before the doing of that act and, at any time when the person was so present, his or her presence was for a purpose connected with that act, or for purposes that included such a purpose.
(3)For the purposes of subsection (1), engaging in a hostile activity in a foreign State consists of doing an act with the intention of achieving any one or more of the following objectives (whether or not such an objective is achieved):
(a)the overthrow by force or violence of the government of the foreign State or of a part of the foreign State;
(aa)engaging in armed hostilities in the foreign State;
(b)causing by force or violence the public in the foreign State to be in fear of suffering death or personal injury;
(c)causing the death of, or bodily injury to, a person who:
(i)is the head of state of the foreign State; or
(ii)holds, or performs any of the duties of, a public office of the foreign State or of a part of the foreign State; or
(d)unlawfully destroying or damaging any real or personal property belonging to the government of the foreign State or of a part of the foreign State.[38]
[38]It is not necessary, for present purposes, to set out sub-ss (4) to (8) of s 6 of the CFIRA.
At the time of his offending, the Code contained a number of terrorism offences.[39] Those offences included engaging in a terrorist act,[40] getting funds to, from or for a terrorist organisation,[41] financing terrorism[42] and financing a terrorist.[43] While the respondent was initially charged with terrorism offences, those charges were withdrawn and the offences to which the respondent pleaded guilty were not offences which included the furtherance or support of terrorism, or the maintenance of a terrorist ideology, as an element of the offending.
[39]Part 5.3 of the Code.
[40]Contrary to s 101.1, for which the penalty was imprisonment for life.
[41]Contrary to s 102.6, for which the penalty was imprisonment for 25 years.
[42]Contrary to s 103.1, for which the penalty was imprisonment for life.
[43]Contrary to s 103.2, for which the penalty was imprisonment for life.
Subsequent to the imposition of sentence in this case, the Court of Appeal in Queensland delivered judgment in the appeal from Atkinson J’s sentence in R v Succarieh.[44] Succarieh was, as we have observed, a case involving offences contrary to the provisions of CFIRA. In dealing with the prosecutor’s submission that in sentencing Mr Succarieh, the Court should be mindful that a purpose of the CFIRA was to prevent terrorism, McMurdo JA[45] said that that argument created the risk of an incorrect reasoning by the sentencing judge.[46] His Honour stated that Mr Succarieh fell to be sentenced on the basis of his guilt under s 7(1) of the CFIRA, ‘which did not include the element that his conduct was in furtherance of terrorism’.[47]
[44][2017] QCA 85 (‘Succarieh’).
[45]With whom Bond J agreed.
[46]Succarieh [2017] QCA 85 [142].
[47]Ibid.
Undoubtedly, the respondent’s offending in the present case was objectively very serious. That said, we agree with the sentencing judge and the Queensland Court of Appeal that an offender such as the respondent who falls to be sentenced in relation to an offence that does not have an element that his conduct was in furtherance of terrorism should not be sentenced as if the offence contained such an element. It follows that, in relying upon the respondent’s statements about his particular beliefs in relation to killing in the name of Allah or the creation of an Islamic caliphate, the appellant overstated the objective gravity of the offences committed by the respondent to which he pleaded guilty. While the respondent’s statements are a matter of serious concern and are properly to be taken into account as part of the matrix of facts that must be synthesized in the sentencing discretion, they are not matters that elevate the objective seriousness of the actual offences.
Ground 1: was there a failure to comply with s 16A(1) of the Crimes Act?
The appellant contended that the sentences imposed by the judge on the two charges were ‘result driven’. That is, it was contended that the judge decided to impose a sentence of time served and a CCO for both charges, rather than doing what was mandated by s 16A(1) of the Act — namely imposing a sentence for each offence which was of a severity appropriate ‘in all the circumstances of the offence’.
There is no substance in the appellant’s contentions. It may be accepted that the offending that constituted charge 2 was more serious than the offending that constituted charge 1. The judge imposed a term of imprisonment in respect of charge 1, where s 17A(1) of the Act provides that a term of imprisonment must not be passed unless the Court is satisfied that no other sentence is appropriate ‘in all the circumstances of the case’. The passing of that sentence on charge 1 does not, however, mandate that a term of imprisonment was required for charge 2. The sentence to be imposed on charge 2 was merely required to be, again, one that was ‘appropriate in all the circumstances of the offence’. But it was also not permitted to be one of imprisonment unless the court was satisfied that no other sentence was ‘appropriate in all of the circumstances of the case’.[48] Those circumstances included: (1) the circumstances of the respondent’s conviction and sentence in respect of charge 1; and (2) the practical reality that the respondent had served 44 days in custody, which time could not be ‘unserved’ so that the sentence to be imposed had to be imposed against that background. Even if that were not so, and one accepted that s 17A(1) of the Act operated so as to preclude a term of imprisonment being imposed on charge 1 and another disposition being imposed on charge 2, one cannot say that it was the sentence imposed on charge 2 that was necessarily erroneous. On the appellant’s argument on ground 1, it might be that the sentence imposed upon charge 1 was wrong because that sentence (imprisonment) was imposed in circumstances where another disposition may have been appropriate.[49]
[48]See s 17A(1) of the Act.
[49]Cf s 17A(1) of the Act.
Ultimately, the complaints advanced by the appellant on ground 1 do not lead anywhere. This appeal falls to be resolved by reference to the arguments that were advanced in respect of grounds 2, 3 and 4.
Ground 2–4: the issues of rehabilitation and whether the sentences were manifestly inadequate.
In ground 2, the appellant makes complaint about the judge’s conclusion that the respondent’s rehabilitation was ‘well advanced’.[50] In grounds 3 and 4, the appellant contends that the sentences imposed were manifestly inadequate. We deal with these grounds together because the question of the respondent’s rehabilitation is inextricably linked with the issue of whether the sentences were manifestly inadequate.
[50]Reasons [66].
There was much debate in this Court about the meaning of the judge’s statement that it was ‘now acceptably clear that your rehabilitation is well advanced’.[51] At one level, it might be thought that the judge was saying that the respondent was well advanced on the path of being demonstrably rehabilitated. At another level, it might be thought that the judge was saying no more than, by reference to the respondent’s continued employment and compliance with significant bail conditions, the respondent’s rehabilitation was ‘well advanced’ in the sense that, as at the time of sentence, the respondent had not committed offences and had been productively employed in the community for more than two years following his release from custody.
[51]Ibid.
There was no error in the judge observing that the respondent’s rehabilitation was well advanced in the sense that he had complied with bail conditions and been productively employed for more than two years following his release from custody. If the judge was saying more than this, then the correctness of such a conclusion might be debated. However, as was said in Zogheib v The Queen:[52]
[I]t is important to bear in mind that, in this State, sentences are delivered orally in the second person, and are directed specifically to the offender who stands for sentence. Ordinarily, sentencing judges strive to express their reasons for sentence in terms that will be understood by the offender, and by other lay persons in court. In such a process, a degree of brevity, and, on occasions, of imprecision of expression, does intrude, because of the nature of the sentencing process. For that reason, it is important to construe sentencing remarks by a judge in their proper context, and not with an eye that is assiduous to detect error in the sentencing process. In that respect, the observations of Tadgell JA in his dissenting judgment in R v Groom, are apposite, namely, that a ‘... judge’s sentencing remarks are not to be construed as if contained in a statute, a will or a deed’.[53]
[52][2015] VSCA 334.
[53]Ibid [55] (citation omitted).
Ultimately, it seems to us that (putting to one side any question of the exercise of the residual discretion) this appeal falls to be determined by reference to whether the sentences imposed were manifestly inadequate in circumstances where the respondent’s rehabilitation was advanced to the point that for more than two years after his release from custody he had been in productive employment, had complied with bail conditions that impacted on his life on a daily basis, and had committed no further offences.
We have already concluded that the appellant’s reliance upon the respondent’s various statements about his beliefs as aggravating the objective seriousness of offending is misplaced. If those matters were capable of being regarded as aggravating the objective seriousness of the respondent’s offending, then there would be much to be said for the proposition that deterrence (both general and specific), denunciation and just punishment were required to be given greater primacy than that given by the judge, with a corresponding diminution in weight to be given to the various factors in mitigation relied upon by the respondent. That said, our conclusion that the appellant has overstated the objective seriousness of the respondent’s offending has the consequence that greater weight than that conceded by the appellant needed to be given to those matters that the respondent is able to call on in mitigation of sentence.
We turn now to the respondent’s unsworn letter to which the judge made reference in his reasons for sentence. First, it is to be observed that at no point during the plea hearing did the prosecutor actually object (or make any submissions in opposition) to the tendering of the letter. For that reason alone, the judge was entitled to have regard to the letter.
Secondly, and in any event, we do not think that much turns on the judge’s receipt of the letter. As we have already noted, while one part of it was relied upon by the judge as being of some assistance to the respondent, another part of it was held to be to the opposite effect. Ultimately, the unsworn letter appears to us to have had a neutral impact on the sentencing process.
Next, we turn to consider the appellant’s complaints of specific error, noting that these were advanced in support of the manifest inadequacy grounds of appeal (grounds 3 and 4) and, unlike the errors advanced in grounds 1 and 2, not as separate grounds of appeal that might vitiate the sentences imposed by the judge.
As to the appellant’s complaint about the judge’s reference to the lack of any evidence that the respondent was planning a terrorist activity in Australia, we see no error. The judge was entitled to make the observations he made. There is nothing in the judge’s reasons to suggest that he was not alive to, and did not take into account, the consequences of the respondent’s offending so far as it involved people outside Australia.
The complaint made by the appellant that the judge sentenced the respondent on the basis that the respondent’s cause was ‘noble’ is misconceived. The judge was entitled to examine where along the spectrum of motivations the respondent’s motivation sat. Having undertaken that task, the judge was at pains to say that the respondent’s motivation ‘by no means excuse[d] [the respondent’s] actions’.[54] The judge’s treatment of this issue was heavily qualified. There is no basis for concluding that the judge sentenced the respondent on some impermissible and subjective assessment about the merits of the conflict that were supported by the respondent. Specifically, we do not accept that the judge somehow reduced the objective seriousness of the respondent’s offending by reference to the cause which the respondent asserted he supported.
[54]Reasons [56].
As to the significance of the AFP refraining from taking action between February 2014 and September 2014, we see no error in the judge’s acceptance of the proposition that that delay was indicative ‘to some degree’ of the AFP’s view of the gravity of the offending up to February 2014. The judge, however, went on to say that it was his assessment (rather than the AFP’s assessment) of the seriousness of the respondent’s conduct that was significant for the purpose of sentencing.[55] In this regard, the judge was plainly correct.
[55]Ibid [35].
Next, the appellant‘s complaint that there was ‘nothing about the delay between plea and sentence which could properly change an otherwise inappropriate sentence into an appropriate one’ is misplaced because it involves an impermissible two-stage reasoning process. As the appellant would have it, the only appropriate sentence at the time of the plea hearing was imprisonment. From that position, the appellant would contend that the addition of the 12-month delay could not change the sentence that was required to be imposed at the time of the plea hearing. That submission overlooks the fact that, in sentencing the respondent, the judge was required to synthesise all of the relevant sentencing considerations at the time of sentence.
Finally (so far as the appellant’s contentions of specific error are concerned), we turn to the appellant’s submission that there was no psychological or other evidence to demonstrate that the respondent had been ‘deradicalised’. It may be accepted that there was little (if any) evidence before the judge of any recanting by the respondent of beliefs he held at the time of his offending. The judge, however, did not proceed on the basis that the respondent had been ‘deradicalised’. Indeed, the judge (who had evidence before him of the respondent attending 11 sessions with Ms Toohey, and also of engaging with Sheikh Abdulazim Afifi on at least 30 occasions), in sentencing the respondent, observed that the respondent’s rehabilitation ‘may involve some form of what some describe as “deradicalisation”.’[56] We see no error in the judge’s approach. The issue of the respondent’s radical beliefs fell to be considered as one of the many facts required to be taken into account in the sentencing synthesis. Further, those beliefs had to be viewed within the context of the charged offences. Much of the appellant’s submissions focussed upon deradicalisation from a general terrorist ideology which went beyond the ambit of the charged offences. Moreover, as the sentencing judge recognised, there was no evidence that the respondent was a threat to community safety.[57]
[56]Ibid [48].
[57]Ibid [29].
In summary, the judge formed a view that was open to him and then took that view into account in the sentences he imposed. As with the other complaints of specific error made by the appellant, the question is whether, on the totality of the material put before the judge, the sentences imposed were manifestly inadequate. We turn now to that issue.
As was said most recently by this Court in DPP v Majok,[58] the principles that are relevant to determining whether a sentence is manifestly inadequate are well established.[59] In DPP v Karazisis,[60] this Court said:
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was wholly outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and the offender.[61]
[58][2017] VSCA 135 (Priest, Kyrou and Kaye JJA) (‘Majok’).
[59]Majok [2017] VSCA 135 [61].
[60](2010) 31 VR 634 (Ashley, Redlich and Weinberg JJA).
[61]Ibid 662–3 [127] (citations omitted).
The respondent’s offending was objectively very serious. That said, as we have already observed, the offences for which he pleaded guilty were not terrorism offences. The judge was faced with a difficult sentencing task: the offending was serious, but there were significant mitigatory factors including the relative youthfulness of the respondent, his lack of prior convictions and his conduct between the time of offending and the time of sentencing.
Different judges may have imposed different sentences on the respondent. The fact that a judge hearing an appeal might disagree with the sentence imposed is not a basis for overturning that sentence and imposing the judge’s preferred sentence.
Generally, deterrence (both general and specific), denunciation and just punishment will be significant sentencing considerations in cases involving offending of the kind committed by the respondent in this case. While an offender who commits the type of offences committed by the respondent might ordinarily expect to receive sentences of imprisonment, having considered all of the relevant matters argued in detail by the parties, we are not persuaded that the sentences imposed by the judge were wholly outside the range reasonably open to him in all of the circumstances of the case.[62] It is to be remembered that sometimes the interests of justice are not necessarily best served by incarceration where a relatively youthful offender might be ‘taught the ways of the criminal’.[63]
[62]Ibid.
[63]Attorney-General v Chmil (Unreported, Supreme Court of Victoria, Full Court, 1 August 1977) per Young CJ.
Conclusion
The appeal must be dismissed.
- - -
8
3
0