CRIMINAL LAW – Sentence – Crown appeal – One charge of having done acts in preparation for, or planning, a terrorist act contrary to s 101.6 of Criminal Code 1995 (Cth) – Respondent sentenced to 10 years’ imprisonment with non-parole period of 7 years’ and 6 months – Whether sentencing judge erred in taking into account possibility that respondent would abandon planned attack – Whether sentencing judge erred by casting onus on Crown to prove beyond reasonable doubt that respondent had not resiled from belief in violent jihad – Whether sentence and non-parole period manifestly inadequate – Culpability of respondent measured by nature and extent of planned attack as well as proximity to commission of proposed act – General deterrence and protection of community paramount sentencing considerations – Personal mitigatory factors of limited weight – Grave example of offending – High moral culpability – Appeal allowed – Respondent resentenced to 14 years’ imprisonment with non-parole period of 10 years and 6 months – Lodhi v The Queen (2007) 179 A Crim R 470 – R v Elomar (2014) 316 ALR 206 – Fattall v The Queen [2013] VSCA 276.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Ms S M McNaughton SC, DPP (Cth) with Mr P J Doyle
Ms A Pavleka, Solicitor for Public Prosecutions (Cth)
For the Respondent
Mr P J Morrissey SC with Ms F H Todd
James Dowsley & Associates
WARREN CJ WEINBERG JA KAYE JA:
In June of last year, the respondent, Sevdet Besim, pleaded guilty in the Trial Division to having, between 17 March 2015 and 15 April 2015, done ‘acts in preparation for, or planning, a terrorist act’. This is an offence contrary to subsection 101.6(1) of the Criminal Code 1995 (Cth), and carries a maximum penalty of life imprisonment.
The ‘terrorist act’ specified in the particulars to the indictment was ‘the killing of a law enforcement officer’. It was said that this was to be carried out with the intention of advancing ‘violent jihad’.
The respondent was sentenced to a term of 10 years’ imprisonment. A non-parole period of 7 years and 6 months was fixed.[1]
The Commonwealth Director of Public Prosecutions (‘Director’) now appeals against that sentence. She relies upon the following three grounds:
1.The learned sentencing judge erred in taking into account the possibility that the respondent would abandon his planned terrorist attack.
2.The learned sentencing judge erred in his application of the principle of the protection of the community, by wrongly casting an onus on the Crown to prove beyond reasonable doubt that the respondent had not resiled from his belief in violent…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
DPP (Cth) v Besim [2017] VSCA 158
Case
[2017] VSCA 158
Decision Date
CaseChat Overview and Summary
The case of DPP (Cth) v Besim involved the respondent, who was charged with a serious offence under section 101.6 of the Criminal Code 1995 (Cth), for having engaged in acts in preparation for, or planning, a terrorist act. The Federal Court of Australia was tasked with reviewing the sentence handed down by the sentencing judge, who imposed a term of 10 years' imprisonment with a non-parole period of 7 years and 6 months. The Commonwealth Director of Public Prosecutions appealed the sentence, arguing that it was manifestly inadequate.
The primary legal issues before the court were whether the sentencing judge had erred in considering the possibility that the respondent might abandon the planned attack, and whether the judge had misapplied the onus of proof by requiring the Crown to demonstrate beyond reasonable doubt that the respondent had not abandoned his belief in violent jihad. Additionally, the court had to assess whether the sentence and non-parole period were manifestly inadequate given the gravity of the offence and the respondent's culpability.
In determining the appeal, the court found that the sentencing judge had erred in considering the possibility of the respondent abandoning the planned attack, as this was speculative and not supported by the evidence. The court also held that the sentencing judge had placed an incorrect onus of proof on the Crown. The court emphasised that the culpability of the respondent should be measured by the nature and extent of the planned attack, as well as the proximity to its commission. Considering the paramount sentencing principles of general deterrence and community protection, the court found the original sentence and non-parole period to be manifestly inadequate. The court resentenced the respondent to 14 years' imprisonment with a non-parole period of 10 years and 6 months.