[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.
CRIMINAL LAW – Sentence – Crown appeal – Offence of doing acts in preparation for, or planning, terrorist act contrary to s 101.6 of Criminal Code (Cth) – Respondent sentenced to 7 years’ imprisonment with non-parole period of 5 years and 3 months – Whether sentence manifestly inadequate – Respondent 17 years old at time of offence – Guilty plea – Culpability measured by nature and extent of planned terrorist act – Serious example of offending – High moral culpability – General deterrence, denunciation and protection of community paramount sentencing considerations – Personal mitigatory factors of limited weight – Sentence manifestly inadequate – Appeal allowed – Respondent resentenced to 11 years’ imprisonment with non-parole period of 8 years and 3 months – R v Lodhi (2006) 199 FLR 364 – Lodhi v The Queen (2007) 179 A Crim R 470 – Fattall v The Queen [2013] VSCA 226 – Elomar v The Queen (2014) 316 ALR 206.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Ms S M McNaughton SC, DPP (Cth), with Mr D Lane
Ms A Pavleka, Solicitor for Public Prosecutions (Cth)
For the Respondent
Mr R Richter QC with Ms G Morgan
Stary, Norton Halphen
WARREN CJ WEINBERG JA KAYE JA:
The respondent pleaded guilty to doing acts in preparation for, or planning, a terrorist act between 25 April 2015 and 8 May 2015 contrary to s 101.6(1) of the Criminal Code (Cth). He was sentenced, by a justice of this Court, to 7 years’ imprisonment with a non-parole period of 5 years and 3 months. The Director of Public Prosecutions (Cth) has appealed against the sentence on the grounds that it was manifestly inadequate.
The respondent was born in February 1998. The indictment, to which the respondent pleaded guilty, alleged that between 25 April and 8 May 2015, the respondent, who was then 17 years of age, planned and prepared to build a bomb and detonate it in a populated area, in order to cause significant death and injury to members of the public, for the purpose of furthering the cause of Islamic State, of which he had become an adherent. In particular, it was alleged that, during the period of the charge, the respondent searched for and obtained materials and documents relating to the manufacture of improvised explosive devices (‘IEDs’), and he partially constructed such devices.
The respondent’s family migrated to Australia from Syria in 1993. Until the beginning of 2015 he was enrolled at and attended…
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
Director of Public Prosecutions (Cth) v MHK (a Pseudonym)[1] [2017] VSCA 157
Case
[2017] VSCA 157
Decision Date
CaseChat Overview and Summary
In the case of the Director of Public Prosecutions for the Commonwealth (DPP) versus MHK, the High Court was called upon to review the sentence imposed on MHK for planning a terrorist act, contrary to section 101.6 of the Criminal Code. MHK, who was 17 years old at the time of the offence, pleaded guilty to the charge and was sentenced to 7 years in prison, with a non-parole period of 5 years and 3 months. The Commonwealth Attorney-General appealed the sentence, contending that it was manifestly inadequate. The central issue before the Court was whether the original sentence was manifestly inadequate given the nature and extent of the planned terrorist act, the culpability of the offender, and the need to achieve general deterrence, denunciation, and protection of the community.
The Court examined the principles of sentencing for terrorism offences, highlighting the gravity of the crime and the necessity for a sentence that appropriately reflects the offender's culpability. It noted that while MHK was young, the severity of the planned act and the high moral culpability involved warranted a significant sentence. The Court also considered the personal mitigating factors, such as MHK's age and guilty plea, but found them to be of limited weight in comparison to the overarching need for general deterrence and denunciation. The Court concluded that the original sentence did not adequately address these considerations and was manifestly inadequate.
As a result, the Court allowed the appeal and resentenced MHK to 11 years in prison, with a non-parole period of 8 years and 3 months. This sentence was deemed appropriate given the seriousness of the offence and the need to uphold the principles of general deterrence and denunciation, while also taking into account the protection of the community. The Court's decision underscores the importance of sentencing in terrorism cases and the need for sentences that reflect the gravity of such offences.