Director of Public Prosecutions (Cth) v Sevdet Besim [No 3]
[2017] VSCA 180
•7 July 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0199
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| SEVDET BESIM [No 3] | Respondent |
S APCR 2017 0001
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| MHK (A PSEUDONYM) [No 3][1] | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
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| JUDGES: | WARREN CJ, WEINBERG and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 June 2017 |
| DATE OF JUDGMENT: | 7 July 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 180 |
| JUDGMENTS APPEALED FROM: | DPP (Cth) v Besim [2016] VSC 537 (Croucher J) DPP (Cth) v MHK (a Pseudonym) [2016] VSC 742 (Lasry J) |
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CRIMINAL LAW – Sentence – Crown appeal – Offence of doing acts in preparation for, or planning, terrorist act contrary to s101.6 of Criminal Code (Cth) – whether a warning under s 105A.23 of Criminal Code (Cth) must be given by the court in person – whether the application of the continuing detention provisions under s 105A of Criminal Code (Cth) is relevant to re-sentencing – Court ordinarily not required to engage in speculation about the possible future exercise of an administrative or judicial discretion that might affect an offender at the completion of the non-parole period or after service of the sentence – Muldrock v The Queen (2011) 244 CLR 120 – Director of Public Prosecutions v Ellis (2005) 11 VR 287.
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| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr D J Lane with Ms K Breckweg | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
| For the Respondent Besim | Mr P J Morrissey QC with Ms F H Todd | James Dowsley & Associates |
| For the Respondent MHK | Dr G Boas with Ms G E Morgan | Stary Norton Halphen |
WARREN CJ
WEINBERG JA
KAYE JA:
In these matters, we delivered our reasons for judgment on 23 June 2017. In each case, the Commonwealth Director of Public Prosecutions had appealed sentences imposed on the respondent after the respondent had pleaded guilty to having done acts in preparation for, or planning, a terrorist act, contrary to s 101.6(1) of the Criminal Code (Cth) (‘the Code’). In each case, this Court upheld the appeal, and re-sentenced the respondent.[2]
[2]DPP (Cth) v Besim [2017] VSCA 158 (‘Besim Reasons’); DPP (Cth) v MHK (a Pseudonym) [2017] VSCA 157 (‘MHK Reasons’).
After we had delivered our reasons in each appeal, the representative of the Director of Public Prosecutions, who was then in Court, brought to our attention s 105A.23 of the Code, and submitted that we should give to the respondent the warning specified by that provision. After further discussion, the representative informed us that that provision, and related provisions in Division 105A of the Code, had come into effect on 7 June 2017, namely, two days before the appeals in each case were heard by this Court. No explanation was given as to why those provisions were not brought to the attention of the Court, or to the attention of the representatives of each respondent, before the appeal was heard, or, at the very least, before delivery of reasons for judgment.
As a consequence, we deferred entering judgment in each appeal, and permitted each party to make submissions to this Court, both in writing and, if they desired, orally, as to the application of the provisions, and their effect (if any) on the re-sentencing of each respondent.[3] We have now received written submissions, and have heard oral argument, as to that aspect of the appeals.
[3]The Court may recall a judgment or order pursuant to its inherent power and r 1.14 Supreme Court (Criminal Procedure) Rules 2008.
It is common ground that the set of provisions, contained in Division 105A of the Code, are applicable to both respondents. Before outlining the submissions of the parties, it is convenient first to summarise the provisions contained in Division 105A.
Continuing detention provisions
Division 105A was introduced into the Code by the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016.
The Division is entitled ‘continuing detention orders’. Section 105A.1 states that the object of the Division is to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious Part 5.3 offences, if released into the community. Section 105A.3 provides that a continuing detention order may be made (inter alia) in respect of a person if that person has been convicted of a serious Part 5.3 offence (that is, an offence the maximum penalty for which is seven or more years of imprisonment) and is detained in custody and serving a sentence of imprisonment for the offence. A ‘serious Part 5.3 offence’ is defined to mean an offence against that Part, the maximum penalty for which is 7 or more years’ imprisonment.
Section 105A.5 provides that the Attorney-General (or a legal representative of the Attorney-General) may apply to a Supreme Court of a State or Territory for a continuing detention order in relation to a terrorist offender, such application not to be made more than twelve months before the end of the sentence. Section 105A.6 provides that if such an application is made, the Court must hold a preliminary hearing to determine whether to appoint one or more ‘relevant experts’. Such an expert is defined (inter alia) as a person who is competent to assess the risk of a terrorist offender committing a serious Part 5.3 offence if the offender is released into the community, being a person who is a registered medical practitioner and a Fellow of the Royal Australian and New Zealand College of Psychiatrists, any other person registered as a medical practitioner, or any person registered as a psychologist, under a law of a State or Territory, or any other expert.
Section 105A.7 contains a set of provisions relating to the making of a continuing detention order. It provides as follows:
105A.7 Making a continuing detention order
(1)A Supreme Court of a State or Territory may make a written order under this subsection if:
(a)an application is made in accordance with section 105A.5 for a continuing detention order in relation to a terrorist offender; and
(b)after having regard to matters in accordance with section 105A.8, the Court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community; and
(c)the Court is satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.
Note 1: An example of a less restrictive measure is a control order.
Note 2: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.8, as referred to in paragraph (1)(b) of this section (see subsection 105A.8(3) and section 105A.13).
(2) Otherwise, the Court must dismiss the application.
Onus of satisfying Court
(3)The Attorney‑General bears the onus of satisfying the Court of the matters referred to in paragraphs (1)(b) and (c).
Period of order
(4)The order must specify the period during which it is in force.
(5)The period must be a period of no more than 3 years that the Court is satisfied is reasonably necessary to prevent the unacceptable risk.
Court may make successive continuing detention orders
(6)To avoid doubt, subsection (5) does not prevent a Supreme Court of a State or Territory making a continuing detention order in relation to a terrorist offender that begins to be in force immediately after a previous continuing detention order in relation to the offender ceases to be in force.
Section 105A.8 specifies the matters in relation to which the Court must have regard in deciding whether it is satisfied to the degree required by s 105A.7(b). They include (inter alia) the following:
The safety and protection of the community;
Any report received from a relevant expert (under s 105A.6) in relation to the offender;
The results of any other assessment conducted by such a relevant expert;
Any report relating to the extent to which the offender can reasonably and practicably be managed in the community;
Any treatment or rehabilitation programs in which the offender has had the opportunity to participate and the level of the offender’s participation in those programs;
The level of the offender’s compliance with any obligations to which he (or she) is or has been subject while on release on parole (or subject to a continuing detention order);
The offender’s history of any prior convictions;
The views of the sentencing court; and any other relevant information.
Subdivision D of Division 105.A contains a set of provisions for the review of a continuing detention order. Subdivision E contains provisions relating to the proceedings in respect of an application for a continuing detention order. They include a requirement that the Court apply the rules of evidence and procedure for civil matters during a continuing detention order proceeding (s 105A.13(1)); provision for the party to a continuing detention order proceeding to adduce material or make submissions (s 105A.14); and a requirement that the Court state reasons for its decision (s 105A.16). In addition, s 105A.17 provides for a right of appeal to a Court of Appeal, if a Supreme Court makes a continuing detention order.
Section 106.8 provides that Division 105A (except s 105A.23) applies in relation to any person who, on the day the section commences, is detained in custody and serving a sentence of imprisonment for an offence referred to in s 105A.3(1)(a). As we have mentioned, the provisions in question in this case commenced operation on 7 June 2017. As the parties correctly accept, as a consequence, the provisions of Division 105A apply to both offenders, MHK and Besim.
Section 105A.23 provides that a court that is sentencing a person who is convicted of an offence referred to in s 105A.3(1)(a) must warn the person that an application may be made, under Division 105A, for a continuing detention order requiring the person to be detained in a prison after the end of the person’s sentence for the offence. Section 106.8(8) provides that s 105A.23 applies in relation to any sentence imposed on a person after the commencement of the section, whether the offence in relation to which the sentence is imposed was committed before or after that commencement.
It is common ground that on re-sentencing each respondent this Court is obliged to give that warning to the respondent. It is further common ground that such a warning should be given to each respondent in person, albeit that it may be transmitted to him through the medium of an audio visual link from the Court.
Submissions
Senior counsel for the respondent, Besim, submitted that the scheme for continuing detention, prescribed by Division 105A of the Code, is relevant to the re-sentencing of the respondent, and that the Court should take that scheme into account in determining the sentence to be imposed. In particular, counsel submitted that the existence of the statutory scheme for continuing detention is relevant to an evaluation of the weight to be given to the requirements of incapacitation and protection of the community. That assessment, he submitted, must be made in the context of the scheme for detention provided by Division 105A. While, he acknowledged, the existence of such a scheme would not, in every case, result in the imposition of a lower sentence, nevertheless it is a factor relevant to the instinctive synthesis involved in the sentencing process.
In that connection, senior counsel also submitted that the introduction of the scheme for continuing detention is relevant to the question of specific deterrence. In particular, in the context of an appeal which has resulted in an increase in the sentence imposed on the respondent, the warning that is required to be given to the respondent under s 105.23 is likely to have a positive effect in terms of the respondent’s renunciation of terrorism, in his rehabilitation.
Senior counsel further submitted that the Court ought also take into account that the prospect of the respondent being subject to application of the continuing detention scheme is likely to increase the burden of imprisonment upon him. Senior counsel acknowledged that no evidence had been adduced on behalf of his client to support the proposition that, as a result of the application of the scheme to his client, and his understanding of it, Besim has experienced, or is likely to experience, additional stress and hardship while serving his term of imprisonment. Nevertheless, it was submitted, the Court should presume that it is likely that he will suffer such hardship while serving the term of imprisonment imposed on him.
Counsel for the respondent MHK commenced by adopting the submissions made on behalf of Besim. In addition, he made the following submissions. He noted that MHK is a young person, who was 17 years of age when he committed the offence in question. Counsel submitted that, in the case of such a young person, ordinarily, it is more difficult to make a prediction as to whether he will in the future be a risk than it would be for a person of more mature years. Thus, in the case of an offender such as MHK, there is a greater degree of uncertainty in making such a determination at the time of sentencing. It is in that context, counsel submitted, that the Court should regard the continuing detention provisions, contained in Division 105A, as a form of insurance, so that the determination of the risk posed by his client to the community is likely to be better informed at the time at which it is contemplated an application be made in respect of him under Division 105A. For those reasons, it was submitted, the Court should, at the stage of sentencing, attribute less weight to the factors of protection and incapacitation, than it might in the case of a person of more mature years.
Further it was submitted that the potential application of the scheme, established by Division 105A, to the respondent, will render the period that he must serve in prison more burdensome for him, because of the uncertainty that he will face during that period of time, as to whether he will be detained in custody after completion of service of his sentence.
In response, counsel for the appellant submitted that the provisions, contained in Division 105A of the Code, are irrelevant to the determination of the sentence to be imposed on each respondent. Counsel submitted that, as a matter of general principle, a court is not ordinarily required to, and should not, engage in speculation about the possible future exercise of an administrative or judicial discretion that might affect an offender at the completion of the non-parole period, or after service of the sentence in question. Counsel submitted that that proposition is well established in a number of authorities. In particular, counsel noted the cases in which it has been determined that a sentencing court must not speculate about whether an offender would be released on parole, and, if so, on what conditions such release would take place.[4] Similarly, counsel noted that the mere possibility that an offender might be deported after serving a term of imprisonment has been held not to be relevant to sentencing.[5] Counsel also referred to the remarks made by Bongiorno J, in passing sentence in R v Benbrika,[6] that the provisions relating to control orders, contained in Division 104 of the Code, did not affect the assessment by the Court of the degree of risk posed by the offender to the community.
[4]See, eg, R v Douglas [1959] VR 182; R v Yates [1985] VR 41, 44.
[5]Guden v The Queen (2010) 28 VR 288, [29]; see also Hickling v Western Australia [2016] WASCA 124.
[6](2009) 222 FLR 433, 470–471 [242]–[244].
In addition, counsel referred to the decision of the High Court in Muldrock v The Queen,[7] in which the Court rejected the submission that, as a result of the continuing detention regime established by the Crimes (Serious Sex Offenders) Act 2006 (NSW) (‘Serious Sex Offenders Act’), the requirement for protecting the community should be given less emphasis in sentencing the offender.[8] Similarly, in Director of Public Prosecutions v Ellis,[9] Callaway JA (with whom Batt and Buchanan JJA agreed) took a similar approach in relation to the relevance of registration of an offender under the Sex Offenders Registration Act 2004 (Vic).[10]
[7](2011) 244 CLR 120 (‘Muldrock’).
[8]Ibid 141 [61].
[9](2005) 11 VR 287.
[10]Ibid 291–2 [8].
Counsel for the appellant further submitted that an assessment by a sentencing court, as to whether a successful application might, sometime in the future, be made for a continuing detention order in relation to the offender, would be an exercise which was largely speculative. First, any such application would be made well into the future. It could only be made while the person in question is detained in custody, and during the last twelve months of the head sentence. Thus, it would not apply to an offender if that offender were already released on parole before the expiration of the head sentence. Second, s 105A.5(2A) and s 105A.5(3) provide that the Attorney-General must first ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that the order should not be made, and the application must include any report or other document to be relied on in that respect. Third, Division 105A contains a number of procedural steps that must be followed in dealing with the application. They include the possible appointment of one or more relevant experts to conduct a risk assessment and provide a report. Fourth, as already mentioned, an order can only be made if the Court is satisfied, to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community, and there is no other less restrictive measure that would be effective in preventing that risk. The fact that the question relating to whether such an application would be made, and the outcome of any such application, would involve considerations and decisions some years in the future, compounds the degree of uncertainty attaching to each of those stages prescribed in Division 105A.
Counsel further submitted that the argument that a terrorist offender should receive a lesser sentence because the offender might, upon completion of the sentence, be assessed as continuing to pose an unacceptable risk to the community, is, ‘to say the least, problematic’.
Finally, counsel submitted that the existence of the continuing detention provisions in Division 105A of the Code were not relevant to the question of the circumstances in which each of the two respondents would serve their terms of imprisonment. In particular, he submitted, it is a matter for the respondents whether, during their term of imprisonment, they embark on a course of rehabilitation which will enable them to avoid the application of Division 105A. Moreover, neither respondent had adduced any evidence as to any particular distress or hardship suffered by him as a result of his knowledge that those provisions might apply at the completion of his sentence. Counsel submitted that it was not for the Court to make any assumption in that regard, but, rather, it should be a matter of evidence. In that respect, counsel referred to the dictum of the High Court in Bui v Director of Public Prosecutions (Cth),[11] where the Court noted that there was actual evidence of distress and anxiety suffered by the appellant, by reason of the respondent’s having instituted an appeal against sentence.
[11](2012) 244 CLR 638, 652 [23].
In response, counsel for the respondent MHK submitted that the authorities, relied upon by the appellant, were not in point. In particular the scheme established by Division 105A of the Code differed significantly from the parole system. Similarly, the control order provisions, that were considered in Benbrika, operated differently to the continuing detention provisions.
The issues
The question then is whether, in light of the provisions contained in Division 105A, which, as we have said, were not drawn to the Court’s attention before the time it delivered its earlier reasons, the Court should re-consider the sentences determined by it, and now impose different sentences. In its most general form, that question involves two issues. First, whether the provisions of Division 105A are relevant to the re-sentencing process carried out by this Court. Secondly, if so, whether in the case of either respondent, the potential application of those provisions to him should result in a different, and lesser, sentence than that which we have already determined.
As is evident from the parties’ submissions, the position taken by the respondents is that the provisions, contained in Division 105A, are relevant. First, because the provisions, and their operation, reduce the weight that ought to be given in sentencing each respondent to protection of the community and incapacitation. Secondly, it is submitted that the potential application of the scheme contained in Division 105A will make the term that the respondent will serve in prison more burdensome for him.
It is convenient first to consider the question of the effect of Division 105A of the Code on the role of protection and incapacitation in sentencing.
As we stated in our reasons for judgment in the appeals, in sentencing an offender for a terrorist offence, such as those for which the respondents have been convicted, the protection of the community, and incapacitation of the offender, are separate from general deterrence. Because of the nature and gravity of each respondent’s offending, substantial, and indeed primary, weight must be given to the role of protection, as well as to general deterrence and denunciation.[12] The question which now arises is whether the effect of those principles, stated in the authorities to which we earlier referred, is in any way diminished, or affected, by the introduction of Division 105A, and in the potential application of the provisions contained in that Division to the particular respondent.
[12]MHK Reasons [54]; Besim Reasons [113].
Legal principles — protection of the community
In order to resolve the question set out above, we will first examine more closely what is meant by the concept of protection of the community in the context of general sentencing principles.
In that respect, two decisions of the High Court, Veen v The Queen [No 1][13] and Veen v The Queen [No 2],[14] are of particular relevance.
[13](1979) 149 CLR 458 (‘Veen [No 1]’).
[14](1988) 164 CLR 465 (‘Veen [No 2]’).
In Veen [No 1], the appellant, who was then 20 years of age, suffered severe brain damage. On his trial for murder by stabbing, the jury returned a verdict of manslaughter on the ground of diminished responsibility. Four years earlier he had been convicted of malicious wounding with a knife. The judge accepted evidence that the appellant suffered from brain damage, which could cause him to act in an uncontrolled aggressive manner when provoked or affected by alcohol. The judge imposed a sentence of life imprisonment, without a non-parole period, on the basis that he was likely to kill or seriously injure someone, and therefore such a sentence was necessary to protect the community. The High Court allowed the appeal, set aside the sentence, and by majority re-sentenced the appellant to 12 years’ imprisonment. In doing so, the Court made it clear that, while protection of the community is a legitimate and important sentencing consideration, it must not result in a sentence which is disproportionate to the gravity of the offending, and to the circumstances of the offender. In particular, the Court made it plain that it is not permissible for a sentence to be imposed for the purposes of preventive detention.[15]
[15]Veen [No 1] (1979) 143 CLR 458, 467 (Stephen J), 468 (Mason J), 478, 482–3 (Jacobs J), 494–5 (Murphy J).
In Veen [No 2],[16] the same appellant was charged with a subsequent murder by stabbing, which was committed nine months after his release from prison. At his trial, the prosecution accepted his plea of guilty of manslaughter on the ground of diminished responsibility. In sentencing the appellant to life imprisonment, the judge accepted that he had been severely emotionally and socially deprived, and that he suffered from brain damage. However, the judge considered that the appellant was a continuing danger to society and, by reason of his brain damage, was likely to kill again if he were ever released from prison. In those circumstances, the judge felt unable to mitigate the severity of the life sentence on account of his mental condition. The appellant’s application for leave to appeal to the Court of Criminal Appeal of New South Wales was refused. His application for special leave to appeal to the High Court was granted, but (by majority) the appeal was dismissed.
[16](1988) 164 CLR 465.
The relevant principles relating to the necessary connection between protection of the community on the one hand, and proportionality on the other, were stated in the following passages from the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ:
The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen [No 1] that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender …
It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.[17]
[17]Ibid 472–3; see also Chester v The Queen (1988) 165 CLR 611, 618 (Mason CJ, Brennan, Deane, Toohey and Gaudron JJ); Roadley v The Queen (1990) 51 A Crim R 336, 341–3 (Crockett, O’Bryan and McDonald JJ); Crowley & Garner v The Queen (1991) 55 A Crim R 201, 207 (Crockett J); Taylor v The Queen (1992) 58 A Crim R 337, 343–4 (Phillips CJ); R v Denyer [1995] 1 VR 186, 193 (Crockett J), 195–6 (Southwell J).
The decision of the Court of Criminal Appeal of this State in Roadley v The Queen[18] is a useful illustration of the application of those principles. In that case, the applicant was 40 years of age, and without previous convictions. He was severely intellectually disabled to the extent that he had an intellect of a 5 or 6 year old child, with minimal appreciation of the consequences of his behaviour, and with limited, if any, impulse control. The applicant pleaded guilty to taking part in an act of sexual penetration with a child under 10 years of age. The judge imposed a sentence of 6 years’ imprisonment, with no minimum period. The judge determined that sentence by reference to two principal considerations, first, because he was satisfied there was no appropriate social service assistance for the applicant outside the correction system to cater for his needs, and, secondly, he took the view that unless the applicant was supervised and treated, he would re-offend.
[18](1990) 51 A Crim R 336.
On appeal, the Court of Criminal Appeal, unsurprisingly, held that neither reason was a legitimate consideration for the purposes of determination of the appropriate sentence. The first consideration amounted to the surrender of the Court’s duty to act judicially in order to supplement the community social services. The second involved the imposition of ‘preventative detention’ that went beyond a sentence that was proportionate to the crime, in order to safeguard the community from a perceived risk of a repetition of similar unlawful behaviour.[19]
[19]Ibid 342.
The Court stated:
With respect to the second proposition … the High Court has spoken with authority in Veen. The majority considered that the protection of the public does not alone justify an increase in the length of a sentence. Such protection is undoubtedly a factor to be taken into account. But it cannot be allowed to produce a sentence that is disproportionate to the offence. The sentence must be fixed by the application of well-established principles of sentencing.[20]
[20]Ibid 343.
It is important to understand that those principles are, necessarily, attached to the proposition that has been developed in the cases, to which we referred in our earlier reasons, that in sentencing an offender for a terrorist offence, protection of the community and incapacitation, together with general deterrence and denunciation, are of primary importance. None of the authorities, to which we referred in our reasons,[21] or on which we relied, in relation to that proposition, in any way departed from the principles stated in Veen. Protection and incapacitation must not be given such weight as to lead to a sentence that is disproportionate to the criminality involved in the offending, or to produce a sentence that serves the function of preventative detention. Rather, the function of protection of the community, which is relevant in all sentencing cases, is accorded significant weight in sentencing for terrorist offences, but not so as to produce a sentence that is disproportionate to the culpability of the offender, or which results in a sentence that can only be justified on the basis of preventative detention.
[21]MHK Reasons [54]–[55]; Besim Reasons [112]–[114].
Further, the sentences that were imposed in the present cases, as in any case, involved a necessary synthesis of the important sentencing considerations of general deterrence, denunciation and protection of the community, with matters relevant to the personal circumstances of the respondent. That is so, albeit that those matters are given reduced significance because of the gravity of the offending and the level of the respondent’s culpability for that offending. In other words, the concepts of protection and incapacitation, while of substantial importance, were but aspects of the instinctive synthesis by which the appropriate sentence was to be determined.
In addition, insofar as protection of the community was relevant to the re-sentencing exercise, it is based, primarily, on the consideration that necessarily the apprehension of the respondent for the offence that he had committed — preparing and planning to commit an act of terrorism — was directed to intercepting and interdicting the commission by him of a grave act of terrorism in the community. As we noted in MHK,[22] it was not possible to detect any sense of hesitation or doubt by the respondent, in the intercepted communications that he had with his interlocutors, while he was preparing to commit the terrorist act that was in contemplation. Similarly, as we noted in Besim,[23] there was no evidence that suggested even the slightest reluctance on the part of the respondent to carry out the plan that he was preparing and discussing with ‘S’.
[22]MHK Reasons [64].
[23]Besim Reasons [107].
Thus, in both of these appeals, the question of the protection of the community was one which, necessarily, was significant, both at the time of apprehension of the particular respondent in question, and at the time of sentence. At the stage of sentencing, the issue of the protection of the community is of necessity predictive, based on the Court’s then assessment and appreciation of the danger posed by the respondent to the community, as seen at that time. Neither respondent in this case has any previous conviction. The assessment, at the time of re-sentence by this Court, focused on the respondent’s actions, statements and intentions while planning and preparing the particular terrorist act, on the nature of the terrorist act that was planned, and on the path that each respondent has thus far taken in renouncing adherence to the terrorist ideology which motivated his actions.
By contrast, the exercise that needs to be undertaken by a court, in considering whether to make a continuing detention order under Division 105A, is relevantly and significantly different. That exercise would take place at a much later time, namely, within 12 months of the completion of the respondent’s sentence. It would be directed to different questions, namely, whether at that time it could be demonstrated, to a high degree of probability, on the basis of admissible evidence, that the offender would pose an ‘unacceptable risk’ of committing a serious terrorist offence if he were released into the community, and whether the court is satisfied that no other less restrictive measure would be effective in preventing that unacceptable risk.
While in each instance, in a sense, protection of the community informs the decision of the court, nevertheless the court’s approach and consideration in the two different instances are quite distinct. At the risk of repetition, at the stage of sentencing, protection of the community is directed to the court’s apprehension of the level of danger that the offender presently poses to the community. It is one of a number of sentencing considerations. It must not lead to a sentence that is disproportionate to the criminality involved in the offence. On the other hand, in considering a continuing detention order, the sole consideration of the court is whether, at that time, the convicted offender poses an unacceptable risk to the community that cannot be prevented by any means other than the continued detention. No other consideration, such as general and specific deterrence, denunciation or rehabilitation, has a role to play in the court’s determination of that question at that stage.
Analysis
That then is the jurisprudential context in which we are required to consider the question raised by the submissions to which we have referred. As the foregoing discussion demonstrates, the possibility that, at some significant time in the future, either respondent might be subject to a continuing detention order under Division 105A, could have little logical or practical connection with the principles relating to protection and incapacitation that are applied in the instinctive synthesis by which the sentences in each case are determined.
As submitted by counsel for the appellant, any such connection is further attenuated by the degree of speculation involved in making any assessment as to whether, at that time, an application might be made against either respondent for a continuing detention order and whether, such application having been made, it would be granted by a court.
First, such an application may only be made in the last twelve months of the respondent’s term of imprisonment, and only if the respondent had not, at that time, been released on parole. Secondly, it could only be made upon the Attorney-General, at that time, having ensured that reasonable inquiries were made, as provided under s 105A.5(2A) and having sufficient material upon which to make such an application. Thirdly, if such an application were made, the court must hold a preliminary hearing under s 105A.6, and determine whether to appoint one or more relevant experts and provide a report as specified in s 105A.6(7). Finally, as already mentioned, such an order may only be made if the court is satisfied ‘to a high degree of probability’, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious terrorist offence if released into the community, and the court is also satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.
Further, s 105A.2(5) contains a ‘sunset provision’, so that a continuing detention order cannot be applied for, or made, ten years after the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016, introducing it, received royal assent, namely, after, 7 December 2026. Besim’s substituted sentence of 14 years’ imprisonment would not end until 18 April 2029. Thus, in the absence of any further amendment, or extension of the sunset period, there would be no scope for the Attorney-General to seek a continuing detention order in relation to Besim. In other words, the Act, as presently constituted, has no application to Besim.
Taking those matters into account, it is difficult to comprehend how, in the circumstances of each of the two respondents, the theoretical possibility that an application for continuing detention could be made at the completion of their terms of imprisonment, and such order granted, could be relevant to, or impact on, the sentences that we determined should be imposed on each of them in re-sentencing them. In light of the manner in which this issue has arisen for consideration by this Court, it is neither necessary nor desirable for us to express a conclusion whether, as a matter of strict analysis, the provisions in Division 105A would, in every case, be irrelevant. It is sufficient, for current purposes, to conclude, as we have, that any relevance that those provisions might have to the determination of the sentences in this case would, of necessity, be marginal. Further, taking into account the circumstances of the offending in each case, and of the two respondents, we do not consider that the introduction of the provisions contained in Division 105A could, in any realistic sense, have any effect on the sentences that we determined. That is, assuming that those provisions are in any way relevant to the determination of those sentences.
In this context, we should observe that the submission made on behalf of counsel for MHK, that a sentencing judge should, in effect, regard the provisions of Division 105A as an ‘insurance’ against future risk, so as to diminish the role of protection, is, to say the least, problematic. As we have noted, the purpose of proscribing preparatory terrorist conduct is to enable the law to intervene in the activities of a potential terrorist during the preparation stage, so as to avoid the plans and preparations undertaken by the offender coming to fruition. Of its essence, s 105A is, in that way, protective of the community. Further, and importantly, it would be inappropriate for a court to delegate, in some way, to a future court, or an executive body, the function of the evaluation of the risk posed by the particular offender in question, on the basis that, at the time of sentencing, the prediction of that risk is, necessarily, uncertain. It is for the sentencing court to impose the appropriate sentence, synthesising the various requirements of general deterrence, denunciation, protection, rehabilitation and the mitigating circumstances pertinent to the case. It is not for that court to, in effect, ‘sub-contract’ any of those considerations to another court or body.
These conclusions are supported by the authorities referred to by counsel for the appellant. In particular, in a number of contexts, the courts have consistently held that, ordinarily, a sentencing court should not engage in speculation about the possible future exercise of an administrative or a judicial discretion that might affect, or relate to, an offender at the completion of the offender’s non-parole period, or after service of the whole sentence.
Thus, as pointed out by counsel for the appellant, the Courts of this State have, for decades, applied the principle that, in determining the sentence to be imposed on an offender, the court should not speculate as to the prospects that the particular offender might or might not be granted parole at the completion of his or her non-parole period.[24]
[24]See, eg, R v Douglas [1959] VR 182; R v Bruce [1971] VR 656, 657 (Smith, Little and Lush JJ); R v Yates [1985] VR 41, 44 (Young CJ, Starke, Crockett and Hampel JJ).
It should be noted that the courts have adopted a similar approach to the question whether a sentencing judge should take into account the possibility that an offender might be deported at the completion of the sentence. In that respect, there exists a division of opinion among the intermediate courts of appeal of the States as to whether the prospect that an offender may be deported at the completion of the term of imprisonment is relevant to the determination of the sentence.
In Victoria, the prevailing view is that the court should only take into account that prospect if it is able to make a ‘sensible quantification of the risk’ of deportation faced by the particular offender.[25] The apparent rationale for that approach is that, if the offender is deported, that would constitute an additional hardship, or punishment, on the offender.[26] In addition, the court would take into account, in an appropriate case, the degree of strain and stress caused to the offender by his or her knowledge, during the term of imprisonment, that the offender might be deported at the conclusion of the term of imprisonment.
[25]Guden v The Queen (2010) 28 VR 288, 295 [28]–[29] (Maxwell P, Bongiorno JA and Beach AJA); Darcie v The Queen [2012] VSCA 11, [29]–[45] (Williams AJA); DPP (Cth) v Peng [2014] VSCA 128, [21]–[25]; see also R v Schelvis; R v Hildebrand [2016] QCA 294, [72] (Fraser JA).
[26]R v Tan (2011) 35 VR 109, 140 [126] (Redlich JA).
On the other hand, in New South Wales, Western Australia, and the Northern Territory, appellate courts have held that the prospect of deportation is not a relevant consideration in sentencing.[27]
[27]See, eg, R v Chi Sum Tsui (1985) 1 NSWLR 308, 311 (Street CJ); AC v R [2016] NSWCCA 107, [79] (Schmidt J); The Queen v MAH [2005] NTCCA 17, [41] (Mildren J); Dauphin v The Queen [2002] WASCA 104, [21] (Steytler J); Ponniah v The Queen [2011] WASCA 105, [48]; Hickling v Western Australia [2016] WASCA 124, [9]–[10] (McLure P); [49]–[60] (Mazza JA and Mitchell J).
In Hickling v The State of Western Australia,[28] Mazza JA and Mitchell J, in their joint judgment, having reviewed the authorities, stated:
Parliament may confer a discretionary administrative power on an executive officer which is engaged only after a court, exercising judicial power, has imposed an appropriate sentence according to law. In such cases, the determination of the appropriate sentence remains a matter for the exercise of the court’s judicial discretion, applying appropriate sentencing principles.
The court’s sentencing discretion is not appropriately exercised by reference to predictions about how such an administrative discretion, which arises only after the appropriate sentence is imposed, may be exercised at some future time. The Victorian Court of Appeal has correctly recognised this principle in relation to executive decisions about the grant of parole … The same approach should be applied in relation to the potential future exercise of discretionary administrative powers under the Migration Act.[29]
[28][2016] WASCA 124.
[29]Ibid [58]–[59] (citation omitted).
A similar approach has been taken by the courts in respect of the question of the relevance to sentencing of powers contained in sex offender legislation enabling the continued detention in custody of an offender after the completion of a sentence of imprisonment.
In Muldrock,[30] the Serious Sex Offenders Act empowered the Supreme Court, on application, to order the continued detention in custody, or the extended supervision, of a sex offender following the expiration of the offender’s sentence. The relevant sentencing legislation specifically provided that a court must not take into account, as a mitigating factor, the fact that the offender has or may become liable to an order under the Sex Offenders Act. The appellant in that case submitted that, nevertheless, it remained open to the sentencing court to have regard to the availability of orders under that Act, not as a mitigating factor, but because the Act provided a means of protecting the community from sex offenders who posed a continuing risk of harm. The High Court in Muldrock gave short shrift to that argument, stating:
The notion that a sentence might be reduced to take into account the existence of a regime outside the criminal law providing for the detention of sex offenders may be thought to have little to commend it as a matter of principle. The Court of Criminal Appeal was right to reject the submission. The expression ‘mitigating factor’ in s 24A (of the Sentencing Act) refers to a factor that is taken into account to reduce the sentence that would otherwise be appropriate. It is the function of the court sentencing an offender for a criminal offence to take into account the purposes of criminal punishment in determining the appropriate sentence. A purpose of punishment is the protection of the community from the offender. A court may not refrain from imposing a sentence that, within the limits of proportionality, serves to protect the community in a case that calls for it because at some future time the offender may be made the subject of an order under the Sex Offenders Act.[31]
[30](2011) 244 CLR 120.
[31]Ibid 141–2 [61].
In Director of Public Prosecutions v Ellis,[32] this Court adopted a similar approach in relation to the relevance to sentencing of the registration of an offender under the Sex Offenders Registration Act 2004 (Vic). That case was decided before the enactment of s 5(2BC) of the Sentencing Act 1991 (Vic), which specifically precludes a court, in sentencing an offender, from having regard to any consequences which may arise under that Act or other similar legislation. Callaway JA (with whom Batt and Buchanan JJA agreed), having assumed that the respondent would become subject to the reporting obligations under the Act, stated:
As a general rule, in my opinion, an offender’s reporting obligations under the Sex Offenders Registration Act are irrelevant. Parliament has decided that persons sentenced for particular offences constitute a class in relation to whom such obligations are appropriate. They are an incident of the sentence. It would unduly burden the sentencing process if judges were required to take them into account, any more than if they were required to take into account other ordinary incidents of the criminal justice system.[33]
[32](2005) 11 VR 287.
[33]Ibid 293–4 [16].
It is clear from the foregoing authorities that, ordinarily, the prospect that an offender may subsequently become liable to some form of disposition, as a result of executive action or the exercise of a judicial discretion, is not relevant to the resolution of the sentencing synthesis. While, for reasons we have stated, it is unnecessary and undesirable for us to express a concluded view as to whether the provisions of Division 105A could, in an appropriate case, be relevant to the issue of sentencing in a case such as this, the approach taken by the authorities, in the cases to which we have referred, adds further support to the proposition that any relevance of those provisions to the sentencing of each of the respondents is, to say the least, tenuous.
Thus far our discussion has focused on the principal question raised by the respondents, namely, whether the regime contained in Division 105A should have an effect on the role of protection and incapacitation in the determination of the sentence to be imposed on each respondent so as to result in a different and lower sentence. For the reasons we have given, we conclude that question should be answered in the negative.
As previously indicated, the respondents also each contended that the prospect, faced by each respondent, that they might be subject to an application for continuing detention under Division 105A, would weigh heavily on each respondent as they serve their terms of imprisonment, so that their terms of imprisonment would be more burdensome for them.
There are two short responses that can be made to that contention. First, neither respondent has adduced any evidence in support of that proposition.[34] It is not necessarily evident that the potential application of those provisions, to either respondent, might result in the consequence contended for on their behalf. As counsel for the appellant noted, conversely, their knowledge of the statutory regime contained in Division 105A may well provide a beneficial incentive for them to continue along the path of rehabilitation. While that proposition contains an element of speculation, it necessarily undermines the proposition, relied on by the respondents, that the court should infer or presume the existence of such hardship, absent specific evidence to that effect.
[34]Cf Bui v DPP(Cth) (2012) 244 CLR 638, 652 [23] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
Further, as Callaway JA observed in the passage in Ellis to which we have already referred, the potential application of Division 105A is an incident of the offending engaged in by the respondents, and of the sentences imposed on them. In that connection, the views expressed by Mazza JA and Mitchell J in Hickling are apposite. Their Honours stated:
Further, it is not apparent why, as a matter of principle, special mitigatory weight should be given to the effect which the ‘prospect of deportation’ may have on the impact which a sentence of imprisonment will have on the offender. Many offenders, if not every offender, sentenced to a term of imprisonment suffer uncertainty — even great uncertainty — in prison about matters such as whether their relationships will remain intact; their prospects of employment; whether they will have somewhere to live upon release and where that might be. For some, whether they will return home or back into the community or town in which they lived will be uncertain. These are regarded as matters which are unavoidable consequences of imprisonment and do not constitute mitigating circumstances. We are unable to see the qualitative difference between these factors and the prospect of deportation even under the new regime.[35]
[35]Hickling v The State of Western Australia [2016] WASCA 124, [60].
Conclusion
As we have said, it is neither necessary nor desirable that, in the context of this appeal, we decide whether the provisions of Division 105A are, or could be, relevant to the determination of a sentence to be imposed in respect of a terrorist offence prescribed by Part 5.3 of the Code.
In the present case, if those provisions are at all relevant to the determination of the sentence to be imposed on either respondent, such relevance is, at the most, tangential. Assuming for present purposes that the provisions may have some relevance, their potential application to the respondents does not affect or alter our conclusions as already expressed in our previous reasons as to the appropriate sentence to be imposed on each respondent by way of re-sentencing.[36]
[36]See r 1.13 (3) of Supreme Court (Criminal Procedure) Rules 2008.
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