DPP (Cth) v MHK
[2017] VSCA 157
•23 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0001
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| MHK (a Pseudonym)[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: | 9 June 2017 |
| DATE OF JUDGMENT: | 23 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 157 |
| JUDGMENT APPEALED FROM: | [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 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 X College. However, during the previous 12 months he had experienced some emotional difficulties in connection with an anxiety condition. During that time he searched for, and began to absorb, propaganda disseminated by the prescribed terrorist organisation Islamic State (otherwise referred to as ‘ISIS’). As a result, he became infected with that organisation’s evil and toxic ideology. Although he was living at home with his parents, and his two siblings, he tended to isolate himself from them, and become focused on the extreme version of his Islamic faith. He ceased attending school in 2015.
As a result of his exposure to the ideology of Islamic State, the respondent formed an idea of travelling to Syria to join the civil war that was raging there. However, it became apparent that that was not a realistic option because he needed his parents’ approval to travel. Consequently, the respondent thought about other ways by which he might support the cause of ‘Jihad’ as he construed it to be. As an alternative, he commenced contact via the internet with Junaid Hussain, a British jihadist from Birmingham in the United Kingdom. The communications commenced through the social media platform Facebook and then through an internet messaging service called Surespot.
The respondent commenced communicating with Hussain in early 2015. During the communications, Hussain encouraged the respondent to remain in Melbourne and to commit a terrorist act there. The respondent and Hussain communicated about technical matters such as computer encryption, and, subsequently, about bomb making. Hussain sent the respondent links to enable him to access bomb making manuals.
When the respondent’s home was searched by police on 8 May 2015, two manuals were found in files which had been encrypted on his computer by use of an application that had been installed on it. The first was an article called ‘make a bomb in the kitchen of your Mom’. That article included instructions for the preparation of an IED called ‘iron pipe’. The second manual, found by the forensic examiners, was headed ‘pressure cooker backpack bomb with switch detonator’. It contained detailed instructions on how to produce a bomb. The manuals explained how explosive devices could be made readily from available materials, which could be purchased without raising suspicion. They emphasised the need to acquire large amounts of shrapnel in order to maximise the number of deaths and injuries caused by explosion of such a device. They also advocated that the bomb should be placed in a crowded area, and camouflaged with material such as cardboard, which would not inhibit or reduce their lethal effect on unsuspecting victims. Each manual was addressed to jihadists in western countries. The article entitled ‘pressure cooker backpack bomb with switch detonator’ referred to the use of pressure cooker bombs in attacks or attempted attacks that had been carried out in India, Pakistan, New York, Stockholm, Paris, Afghanistan and Boston.
In accordance with the manuals, the respondent considered and planned to construct a pressure cooker bomb, and also pipe bombs. Each such device involved assembling a container, or several containers, that would explode under pressure spreading shrapnel with great force, so as to inflict widespread casualties. The explosive mixture was to include matchheads that had been ground up from a very large number of matches together with sugar, which could be detonated.
The respondent’s mother had a pressure cooker in her kitchen to which the respondent had access, and he sent a photograph of it to Junaid Hussain. On 28 April, he purchased a six litre capacity pressure cooker, telling retail staff that he was purchasing that item for his mother. In addition, he set about systematically purchasing a substantial quantity of items to be used in the manufacture of the IEDs that he was planning. A number of those items were found on the search of the respondent’s home by police on 8 May. They included three elbow shaped lengths of steel with end caps fitted and four elbow shaped lengths of steel pipe together with eight end caps, which were not fitted together. Those items were found under the respondent’s bed. In addition, five boxes of screws were found in the respondent’s bedroom, which, the respondent accepted, were for the purpose of being used as shrapnel in the bombs that he was constructing. The respondent had partly constructed several pipe bombs, and he had assembled the means to construct a pressure cooker bomb, although, on his plea, he claimed to have abandoned that means of carrying out the proposed act of terror.
On the floor behind the desk in the respondent’s bedroom the police located a plastic bag containing 26 boxes, which held matches the heads of which had been scratched off. They also found a battery packet, and another box of unused matches. On top of the desk in his bedroom was a packet of multi-coloured ‘hundred lights’ containing a string of lights. When the respondent purchased those lights on 6 May, he had told staff that they were for his sister. The lights were an essential component for the ignition of the bombs that he was assembling.
In addition, police found a significant volume of written material styled in the language of ISIS expressing hatred for non-Muslims and Shiite Muslims. A number of documents and Facebook records were located which contained the respondent’s handwriting, and which reflected what the respondent was then planning to do. For example, on 1 May 2015, in a private communication he told one correspondent to ‘watch what is going to happen in a few weeks’, and said ‘I’m very busy might never see you again …’. On 7 May 2015, in the course of another exchange, with a different user, he told that person that he would miss him, but that they would ‘meet in paradise and you would be birds’. Apparently, green birds in paradise is a form of signification of martyrdom for those subscribing to the ideology on which the respondent had become fixated.
The respondent was arrested on 8 May 2015. After his arrest, he was interviewed, but he did not in any meaningful way contribute to the investigation. He only partially assisted police in providing the passwords that were necessary to access the files that he had encrypted on his computer.
Procedure
As the respondent was then 17 years of age, his matter was initially to be dealt with in the Children’s Court. On 1 June 2015, the Commonwealth DPP successfully applied to have it uplifted to the County Court. A committal hearing was then listed before the Children’s Court but no witnesses were called, and at that stage the respondent indicated his willingness to plead guilty. On 31 May 2016, the matter was uplifted to this Court. The plea hearing, before the judge, commenced on 5 September 2016.
The plea
As mentioned, the respondent was 17 years of age at the time of the offending. He has a sister, and a brother. The respondent’s family have been observant, but not strict, adherents to the Sunni Muslim faith. Although the respondent’s parents came to Australia from Syria in 1993, a number of members of his family remained in Syria. The family visited Syria twice, when the respondent was about four years old and six years old, but had not returned since.
The respondent attended Y College from Grade 2 to Year 9, and X College from Year 9 until the commencement of Year 12. He had an unexceptional childhood and early teenage years. However, as mentioned, in early 2014, when he was 16 years of age, he began to experience self-doubt and feelings of inadequacy and social anxiety. During that year, he became withdrawn from social contact. He ate erratically, lost weight and increasingly used cannabis, so that for a period for about two months in mid-2014 his cannabis consumption reached about half a gram per day. During that period of social isolation, the respondent turned increasingly to his Islamic faith. This led him to spend more time on the internet seeking the views of Islamic scholars. At the same time, he became focused on, and concerned about, the tragic events that were unfolding in Syria. His social media contacts promoted the view that Sunni Muslims were the victims of terrible crimes inflicted by Shiite Muslims and the West. The respondent’s concerns in that regard were exacerbated by the fact that he had family members in Syria who were in great danger.
During that time, the respondent began studying Arabic intensively, and in December 2014 he commenced to watch ISIS produced videos. During the summer holidays of 2014 to 2015, he became even more focused on his religion and on what was happening in Syria, and he would stay awake until the early hours of the morning, communicating with people via Facebook, and watching videos produced by Islamic scholars, including those produced by ISIS. During that time, he felt that he needed to travel to Syria to join ISIS in order to fight on behalf of Sunni Muslims, but he was unable to do so because he would have required his parents’ permission to obtain a passport. He grew a beard during the summer holidays, but when he returned to school in February 2015, the school insisted that he shave it off. When he refused to do so, he ceased attending school. He continued to stay awake most nights and spent many hours on the internet.
Since his arrest on 8 May 2015, the respondent has been detained at the Parkville Youth Justice Centre (save for four months in an adult jail). During that time, he attended Parkville College, and at the time of the plea, he was enrolled in two subjects for his Victorian Certificate of Education through Distance Education Victoria. He was also enrolled in Year 12 Arabic through the Victorian School of Languages. The principal focus of the plea made on behalf of the respondent comprised evidence given by a number of witnesses as to substantial changes that they had observed in the respondent in his attitude, particularly to religion and in social matters, and which included an express renunciation by the respondent of the ideology of Islamic State. The evidence, as to that transformation in the respondent, was given by a number of different witnesses.
Ms Shannon Roberts, the campus principal at Parkville College, provided a written report, and also gave evidence on the plea. Ms Roberts had been closely associated with, and involved in, the respondent’s education, particularly between May and June 2015, and during 2016. In her evidence and in her report, she stated that she believed that the respondent’s time at Parkville had been transformative. In particular, Ms Roberts noticed a significant difference between the respondent’s demeanour and general attitude towards her as a female teacher when he arrived, and his attitude at the time of the plea. Initially, he was averse to anything other than a cursory contact with Ms Roberts. However, during 2016 his demeanour changed significantly, so that he would regularly and easily converse with her on a variety of topics. During that time his progress in, and attitude to, his studies had been good, and his tutor had described him as being ‘very bright’ and as having ‘a lot of potential as a student’. Ms Roberts stated that the respondent had been able to engage with people from all walks of life, both male and female. He had also been able to cope with adverse situations, particularly when he had been the recipient of insensitive comments about his past and about his background. The respondent had discussed with Ms Roberts the impact that his offending has had on his family and on his life, and he had expressed regret to her for his conduct.
In cross-examination, Ms Roberts stated that although the respondent had expressed concern about the impact of his offending on his family and on himself, she had not had conversations with him about his attitude towards the broader community. Ms Roberts had chosen to avoid discussing with him his attitude to his offending, and the respondent had not talked to her about it.
Mr Remzi El Sayed, a youth engagement worker and chaplain of the Islamic Council Victoria, also provided a report, and gave evidence on the plea. Mr El Sayed is a past president and vice-president of the Islamic Council Victoria. Although he is not a professional counsellor, he has had substantial experience in mentoring younger persons. In that capacity, Mr El Sayed had visited, and had counselling sessions with, the respondent at Parkville Detention Centre. At the time of the plea, he had over 30 sessions with the respondent, each session lasting around one and a half hours. Mr El Sayed had endeavoured to visit the respondent at least once each week. During the sessions they covered a wide range of topics.
Mr El Sayed stated that the respondent’s view of Islam, and of the world, was very much self-taught, and, in retrospect, he had not had adequate mentorship and guidance in matters relating to his religion. During the period in which he had contact with the respondent, Mr El Sayed had noted a number of changes in his attitude to religion and to non-Muslims. Initially, the respondent was quite intolerant of others, but through dialogue, and through his social interaction with a diverse group of people at Parkville, he had been transformed. As a result, he had developed a maturity in his understanding of Islam, and had improved in his attitude to persons who were not of the Muslim faith. Mr El Sayed stated that the period, during which the respondent had been incarcerated, had enabled him to understand that his religious philosophy had been inherently flawed. Mr El Sayed considered that the respondent had abrogated his radical views, and that he now understood that social and political change could be achieved through conventional means.
In his evidence on the plea, Mr El Sayed stated that the respondent had expressed remorse to his family, to his community, and to the wider community. He said that he had discussed issues of compassion to the wider community with the respondent. Mr El Sayed stated that the respondent recognised what he had done and the impact of it, not just on his family, and on the Muslim community, but on the wider community. He had also expressed a total disdain for ISIS.
In cross-examination, Mr El Sayed stated that the respondent had said that he regretted his actions and the pain that had been caused and the consequence of what occurred. He said he did not believe that the respondent had used the word ‘remorseful’, but he had regretted what he had done. He was very sorry for the pain that he had caused to his family, particularly his mother. However, he had not given any express indication that he regretted planning to bomb members of the Australian community.
The respondent also called evidence from Ms Jodie Fava, an employee of the Department of Health and Human Services. Ms Fava had been the respondent’s case coordinator since his admission to the Parkville Youth Justice precinct and in that capacity he had weekly contact with the respondent. Ms Fava provided a report to the Court, and gave evidence on the plea. She stated that during his time at Parkville, the respondent had progressed well in his education, and had demonstrated himself to be a respectful and independent student. He had been generally able to associate with his peers in a positive manner, and had shown an interest and willingness to maintain appropriate behaviour during his time in custody. Like Ms Roberts, Ms Fava also had noted an improvement in the respondent’s attitude to females. Initially, he had tended to engage more with male staff than with two female custodial staff, but over time he had been more accepting of dealing with female staff. Ms Fava noted that the respondent had had daily visits from his family, and that he had an ‘amazing support base’ with his family. In particular, the respondent’s sister had suspended her university studies to enable his mother to be brought to Parkville to have continual contact with him.
On the other hand, Mr Fava stated that the respondent had demonstrated little compassion towards the broader community, or in relation to the potential impact of his offending on his intended victims. She said that when she asked him any question in relation to that matter, she got no reaction. Ms Fava stated that ordinarily when she asks that question of other young offenders, she is able to elicit a reaction from them. She regarded her inability to provoke any such reaction from the respondent as ‘very unusual’. Ms Fava confirmed that she had not observed any evidence of remorse by the respondent in relation to what he had done, notwithstanding that she had had a number of lengthy conversations with him over the period of time in which she had been responsible for him.
The observations and evidence of Ms Roberts and Ms Fava, as to the respondent’s improved attitude with females, were supported by evidence given by the respondent’s sister on the plea. In particular, she stated that, before his arrest the respondent was distant from her, and avoided her, and he was prone to criticising the manner in which she dressed. However, since his arrest the respondent had changed significantly, communicating directly with her, and complimenting her on her appearance. Unlike before the arrest, he now looked females in the eyes. He had gained weight, and improved his appearance since his arrest.
Mr Guy Coffey, a clinical psychologist, conducted a series of interviews with the respondent between 30 May 2015 and 26 August 2016 at the Parkville Youth Justice Centre. Mr Coffey provided a report and gave evidence on the plea. In his report, he stated that the respondent’s judgment was not impaired by any mental illness at the time of the offending, that he was able to control his actions, and he was aware of their nature and their consequences. At the time of the offending, the respondent had been depressed and socially anxious, and was living a reclusive lifestyle. Nevertheless, Mr Coffey did not consider that the respondent suffered from a major depressive episode during the commission of the offence. The respondent did meet the diagnostic criteria for Social Anxiety Disorder.
Mr Coffey considered that the risk of the respondent re-offending, by being involved in general criminal conduct, was low. He noted that the respondent had commenced to claim that he had renounced religious beliefs supporting violence. Mr Coffey stated that the extent to which that change decreased future risk is dependent on the authenticity and durability of that change. Mr Coffey considered it was probable there had been a shift in the respondent’s thinking away from faith based violence, so that it is less likely, but still possible, that the respondent’s current statements about his attitude to faith were manufactured for the purpose of the plea. Mr Coffey did not observe any strong emotion associated with remorse by the respondent about, or repugnance towards, the intended offending, or any perplexity or horror about how he came to be making a bomb to kill innocent people. The respondent had acknowledged, and was troubled by, the hardship and suffering his offending had caused, particularly to his family, and to the standing of his religion in the wider community. The question, whether the renunciation of the respondent’s previous beliefs will be sustained and consolidated, will depend on the continuation of support and counselling to the respondent, but Mr Coffey was not able to discount the possibility that the respondent could relapse to his previous position.
In evidence, Mr Coffey basically reiterated the views he had expressed in his report. He said that while there had been some changes in respect to the respondent’s religious views concerning the legitimacy of violence, he had not seen a ‘full demonstration of contrition’, in the sense that he did not consider the respondent had fully processed and absorbed the full consequences of the direction in which his actions were taking him. The respondent now seemed to be less immersed in Islamic doctrine and more interested in mundane matters, and he was not exposed to the malignant influence of those who he had been communicating with on the internet. Mr Coffey considered that his contrition was a ‘work in progress’, and that while it was likely he has repudiated the ideas that underpinned his approach to fundamentalist Islam, he had not embraced responsibility for what he had done.
In cross-examination, Mr Coffey could not entirely discount the possibility that the respondent could revert to his previous views, particularly if he were to again fall under the influence of Islamic teachers who espoused extreme views.
The respondent himself also gave evidence on the plea. In his evidence, he said that, having listened to the prosecutor’s opening, he felt embarrassed and ashamed of what he had done. He said that at the time he thought that God wanted him to perpetrate the active terror that he was preparing, but that he definitely did not adhere to those views any longer. When asked about his current view concerning ISIS, he said ‘I reject IS. I declare the innocence of Islam from them. They don’t represent the religion, they don’t represent my faith or me or anyone else. I think that they’re very brutal and they have no value, they don’t have any value for human life’.
The respondent explained how he had come to embrace the views of ISIS, and to plan the terrorist act for which he was preparing at the time of his arrest. In his evidence, he said that although he bought a pressure cooker, he put it back in its box, because he had changed his mind about using it. He said that at the time he was looking for an answer from God, and that God answered his prayer by having him arrested, so that no-one was hurt. The respondent also described the change in his attitude to females, and in particular to his sister, with whom he now shared a strong relationship.
The respondent was cross-examined by the Director. In his evidence in chief, he had stated that, if the bomb went off, people ‘could have’ got hurt, but in cross-examination he stated ‘people would have died’. He could not explain why he had changed his answer in that respect. When cross-examined about how much shrapnel he had purchased, he said ‘I think a box of screws’. When challenged he said ‘maybe two, I can’t remember exactly’. When pressed, he conceded that there were five boxes of screws found in his bedroom. He agreed that he would have completed preparation of the bombs if he had not been arrested by the police. When asked when he decided it was no longer necessary for him to wear a beard, he said it was a gradual process. He then conceded that he shaved his beard off the day before attending court. He said his lawyers had asked him numerous times to shave it off.
In cross-examination, the respondent was pressed about his attitude to what he had set out and planned to do. He said he felt ‘ashamed and regretful’. He said that he was happy he did not do it. He said that it was wrong in Islam to kill innocent people, and he said in that respect his views had changed. He agreed that he had encrypted material on his computer to conceal it, and that he had used dishonest pretexts to purchase items such as the pressure cooker for preparation of the bomb. To purchase those items he used money he received from his parents, and he had lied to his parents about why he needed the money. He agreed that he was not fully helpful to the police when he was asked to provide the password for the encryption. When pressed by the prosecutor, he said that Junaid Hussain had told him that an appropriate place to plant the bomb would be in the central business district, or on a train, or in a police station. At the time of his arrest, he was searching online for switches to use for setting off the bomb.
The judge’s reasons for sentence
In his reasons for sentence, the judge outlined the facts relating to the respondent’s offending. He noted that the respondent’s actions, in acquiring the materials necessary to make a bomb, including acquiring several of the necessary parts only two days before his arrest, made his intentions abundantly clear. The judge did not accept the respondent’s evidence that he had abandoned his plan to use the pressure cooker for the purpose of converting it into a bomb. His Honour concluded that he had not made a final decision in that respect, except that, ‘at the very least’, the respondent intended to use one or more pipe bombs’.[2] The judge stated that he would sentence the respondent on the basis that the only reason that the bombs were not fully completed and activated by the respondent in a public place was because the police had intervened and arrested him. The judge was satisfied that the respondent ‘had every intention of using them’ as he had been urged to do by Junaid Hussain, knowing their potential consequences. The judge found that the respondent’s intention persisted until the intervention of the police.[3]
[2]DPP v [MHK] [2016] VSC 742 (Lasry J), [24] (‘Reasons’).
[3]Reasons, [37].
The judge then considered the respondent’s personal circumstances, and the evidence of Mr Coffey. He noted that Mr Coffey’s assessment that the only substantial risk of the respondent re-offending is associated with violence inspired by the perverted religious ideology of those with whom he had been communicating. The judge noted the ‘transformative effect’ of the respondent’s education at Parkville College, and the significant support shown to him, during his period in detention, by his family.
The judge accepted that the respondent’s plea of guilty was early and was a genuine plea, intended by the respondent to take responsibility for what he did, although that assessment was qualified by the respondent’s view that his arrest had been a sign from God which had stopped him from hurting people. The judge was ‘slightly less confident’ about the element of remorse, because the respondent had not fully come to grips with the direction in which he was heading.[4] Despite the evidence of Mr El Sayed, the judge did not accept that the regret that the respondent felt for his circumstances and the effect that they had on his family was actually remorse. He said that the respondent’s attitude ‘… may be headed in that direction but I am not sure you yet have a deep regret for a wrong committed by you’.[5] He regarded the respondent’s prospects of rehabilitation as being good but ‘that is not said without qualification’.[6]
[4]Reasons, [53].
[5]Reasons, [60].
[6]Reasons, [64].
The judge observed that it was unusual for an accused person to plead guilty, and give evidence and face cross-examination by the Director. His plea had furthered the interests of justice and objectively had a utilitarian value, in that it had vindicated the course of justice and saved the community the expense of a trial. The judge also noted that the respondent had cooperated with law enforcement agencies in the investigation, although initially there were some shortcomings in the respondent’s cooperation.[7] The judge was impressed with the changes that had occurred with the respondent, and his Honour was very impressed with the evidence given by Ms Roberts. The respondent’s rehabilitation and rejection of extreme Jihadist ideas meant that the need for specific deterrence had been reduced to a significant degree, and that his prospects of rehabilitation were good.
[7]Reasons, [70].
The judge noted that he was required to impose a sentence of sufficient severity to reflect the gravity of the offending of the respondent, and, in particular, the devastating consequences that were intended to be wrought by the actions of the respondent. The judge characterised the case as ‘a very serious case’. He rejected the submission made on behalf of the respondent that he should sentence the respondent to a term of 3 years’ detention in a youth justice centre, observing that such a sentence would fail to recognise the objective seriousness of the offence, and give full and proper weight to the factors of denunciation, punishment, general deterrence and protection of the community. Accordingly, the judge imposed the sentence already mentioned, namely a sentence of imprisonment for a period of 7 years, with a minimum non-parole period of 5 years and 3 months. His Honour noted that, if not for the requirements of the legislation, he would have fixed a non-parole period of 4 years which would have better enabled the respondent’s supervision and rehabilitation.
Submissions on appeal
The Director submitted that the sentence, imposed by the primary judge, did not adequately reflect the gravity of the offending by the respondent. The offence, to which the respondent had pleaded guilty, is punishable by life imprisonment. The objective of the offending was to use serious violence in order to inflict death and injury on innocent people. Terrorist acts, such as those intended by the respondent, can cause immense harm, and are intended to engender fear and terror in the community. Such offending is difficult to detect and intercept. In the present case, there were a number of serious aspects of the respondent’s offending. In particular the respondent planned and prepared to use one or more IEDs in a public place in order to cause a maximum amount of death and injury. He liaised with, and obtained encouragement and assistance from, ISIS, which is a major international terrorist organisation. The offending was deliberate and premeditated, and the respondent had approached the preparation for the intended terrorist act systemically and diligently over a period of time. For that purpose, he had obtained detailed instructions which he followed with care. As instructed by his interlocutor, and by the propaganda sent to him, he staged his purchases of items for the manufacture of the IED, so as to minimise suspicion. The offending only ceased because the respondent was arrested. By then his preparations were well advanced, and the IEDs, which he was constructing, would have been viable and likely to cause widespread death and injury if activated. Although the respondent, in his evidence, claimed to have abandoned the idea of using a pressure cooker, the judge did not accept that aspect of his evidence.
The Director submitted that, in cases such as this, sentencing considerations personal to the offender generally are given less weight, and primacy is given to the objective gravity of the offending, and to the requirements of denunciation and general deterrence. Although the respondent was young at the time, his offending bore the hallmarks of adult offending. The respondent had enjoyed significant autonomy from his family, and he had used the privacy that they afforded to him to pursue his secret objective, spending money on purchases of the necessary equipment, and engaging with the international terrorist network ISIS. Thus, while the respondent was youthful, his offending was that of an adult. In addition, the judge noted that the respondent’s remorse for his offending had been incomplete, as he had not yet acknowledged, or expressed contrition for, the suffering that he intended to inflict on innocent members of the community. Further, the respondent’s rehabilitation had taken place in a controlled environment, in which he was supported by his parents and teachers, and in which he was required to associate with a broader spectrum of the community than that in which he had been associating at the time of his offending. Thus, it was submitted some weight must be given to the judge’s reservations concerning the respondent’s rehabilitation, and some caution must be exercised in that regard.
In her submissions, the Director drew the Court’s attention to the sentences imposed in other like cases, including R v Elomar;[8] R v Fattal;[9] Lodhi v The Queen;[10] R v Al-Kutobi & Kiad[11] and R v Benbrika.[12] However, the Director acknowledged that the small cohort of cases, relating to sentences imposed in this area of the law, is an insufficient basis upon which to form a view as to the range of sentences that must be imposed in a case such as this. Nevertheless, it was submitted that the sentences, in those cases, provide some guidance as to the appropriate sentence that should have been imposed in the present case.
[8](2010) 264 ALR 759 (Whealy J); approved on appeal Elomar v The Queen (2014) 316 ALR 206.
[9][2011] VSC 681 (King J); on appeal Fattal v The Queen [2013] VSCA 276.
[10](2007) A Crim R 470.
[11][2016] NSWSC 1760.
[12](2009) 222 FLR 433; approved on appeal Benbrika v The Queen (2010) 29 VR 593.
In response, it was submitted on behalf of the respondent that the sentence imposed on the respondent was appropriate. Counsel for the respondent accepted that the respondent’s offending was a serious example of the offence, and that his moral culpability for the offending was very great. However, counsel contended, there were unique, and exceptional, features about the case, including the youth of the respondent, his progress to rehabilitation, his early plea of guilty, and his remorse, albeit that it was incomplete. Counsel pointed out that the respondent is significantly younger than any other offender who has been dealt with for the offence in question.[13] The fact that the respondent had renounced the ideology which motivated his offending, and had transformed in such a substantial manner as evidenced by the witnesses on the plea, were important mitigating factors. Counsel submitted that if a longer term of imprisonment were imposed on the respondent, it would be counter-productive, as the respondent would serve some of the sentence in an adult prison where he would become exposed to the kind of detrimental influences to which he had succumbed when he became involved in the offending.
[13]In fact, in the other appeal heard on the same day, the offender (Besim) was 18 years old at the time of the offence.
In particular, counsel referred to the fact that the respondent was prepared to give evidence, and, in doing so, to publicly repudiate the doctrines of Islamic State, as important mitigating factors. At the time of his offending, the respondent was young, and impressionable, and thus susceptible to the relevant influence of people like Junaid Hussain. It was submitted that in the case of people like the respondent, general deterrence is of lesser significance, since a threat of imprisonment is unlikely to deter such people from being seduced by the pernicious influences of Islamic State that are disseminated through the internet.
Counsel further submitted that the cases, referred to by the Director, can be readily distinguished in the present case. In each of those cases, the offender was signficiantly older than the respondent. Unlike the offenders in Lodhi, Elomar and Fattal, the respondent had pleaded guilty. The respondent had progressed further, in his renunciation of the extremist views that led him to commit the offence, than the offenders in the other cases.
Accordingly, counsel submitted that the sentence imposed on the respondent was not manifestly inadequate. He further submitted that if the Court were otherwise persuaded by the Director, it should invoke its residual discretion not to intervene with the sentencing. In particular, following sentencing, the respondent had spent approximately four months in adult jail, and during some of that time, he was held in isolated custodial conditions. He has not been able to commence his further Year 12 studies, and was unable to enjoy the daily contact with his family which he had while at Parkville Youth Justice Centre. He was not transferred from adult prison to Malmsbury Youth Justice Centre until early April 2017. Counsel further submitted that the importance of rehabilitation, particularly in the case of young offenders such as the respondent, is a matter that is relevant to the exercise of the residual discretion.[14] The respondent has made outstanding progress in his rehabilitation so far, and, it was submitted, it is important that that progress should not be adversely affected by the imposition of a harsher sentence.
[14]DPP v Karazisis (2010) 31 VR 634, 659 [111] (Ashley, Redlich and Weinberg JJA).
Legal principles
The principles, that apply to the ground relied on by the Director, are well established. They were conveniently stated by Ashley, Redlich and Weinberg JJA in their joint judgment in DPP v Karazisis[15] as follows:
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was 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 of the offender.[16]
[15](2010) 31 VR 634.
[16]Ibid 662–3 [127] (citations omitted).
The question whether the sentence, imposed by the judge, was wholly outside the range of sentencing options available, involves a consideration of the sentencing principles that are relevant to the offending to which the respondent pleaded guilty.
In considering that issue, it is important to bear in mind that the statutory offence created by s 101.6 of the Criminal Code was designed to ensure that persons, who plan to commit dangerous acts of terror in our community, be intercepted early, well before they are able to perpetrate such acts and thereby cause the appalling casualties that invariably result from acts of terror. It is for that reason that an assessment of the criminal culpability of a person, convicted of such an offence, is not measured purely by the steps and actions taken by the offender towards the commission of the act of terror, but, in addition, by a proper understanding and appreciation of the nature and extent of the terrorist act that was in contemplation, and to which those steps were directed.[17]
[17]R v Lodhi (2006) 199 FLR 364, 373 [51] (Whealy J) (‘Lodhi’); affirmed on appeal Lodhi v The Queen (2007) 179 A Crim R 470; Fattal v The Queen [2013] VSCA 276, [164]–[165] (Buchanan AP, Nettle JA and Tate JA); Elomar v The Queen (2014) 316 ALR 206, 265 [282].
Thus, in R v Lodhi,[18] Whealy J, in sentencing an offender for three terrorism offences under ss 101.4, 101.5 and 101.6 of the Criminal Code, stated:
the legislation under which these offences has been created was specifically set up to intercept and prevent a terrorist attack at a very early or preparatory stage, long before it would be likely to culminate in the destruction of property and the death of innocent people. The very purpose of the legislation is to interrupt the preparatory stages leading to the engagement in a terrorist act so as to frustrate its ultimate commission. An evaluation of the criminal culpability involved in any particular offence requires an analysis not only of the act itself, which may be relatively innocuous, but as well an examination of the nature of the terrorist act contemplated, particularly in the light of the intentions or state of mind of a person found to have committed the offence.[19]
[18]Lodhi (2006) 199 FLR 364.
[19]Ibid 373 [51].
In similar terms, in Fattal v The Queen,[20] this Court, in determining an appeal against conviction and sentence for offenders convicted of conspiring to do acts in preparation for or planning to do a terrorist act contrary to s 101.6(1) of the Criminal Code, stated:
while someone convicted of a terrorism offence involving doing acts in preparation for a terrorism act does not stand to be sentenced as though he had committed the terrorism act he was preparing for, nevertheless what was contemplated must inform the nature and gravity of the preparatory act.[21]
[20][2013] VSCA 276.
[21]Ibid [165].
Unsurprisingly, in cases involving terrorist offences, and preparation to commit terrorist acts, the principles of general deterrence, and protection of the community, are given substantial, if not primary, weight. In Lodhi v The Queen,[22] Spigelman CJ quoted, with approval, the following passage from the judgment of Crockett J in the Court of Criminal Appeal in R v Sakr,[23] in which the offender had placed explosive devices with intent to cause an explosion likely to endanger life or cause serious injury or property. Crockett J (with whom Murray and Hampel JJ agreed) stated:
If ever there were a case in which the nature of the offence and the circumstances of its commission, called for a deterrent penalty, then this is that case. The court is justified in believing that the community would expect that the punishment to be imposed should mark its intention, so far as it might be within the power of the court to do so, to arrest the insipient growth of terrorist style of criminal activity in this community.[24]
[22](2007) 179 A Crim R 470.
[23](1987) 31 A Crim R 444.
[24]Ibid 451.
In submissions, it was argued that, in cases such as the present, general deterrence should be given lesser weight, because ordinarily the offender in such cases is intent on carrying out a terrorist act in which the offender himself (or herself) is killed. It was contended that such was the case in the instance of the respondent.
There are a number of responses to that proposition. First, it is not the case that, in each instance, or perhaps even in the majority of instances, terrorists, and intending terrorists, commit, or plan to commit, acts in which they themselves will be killed. Indeed, in the present case, it is not clear, at all, that that was the intention of the respondent. Further and in any event, the submission made on behalf of the respondent contains a logical flaw. In each case, as in the present case, the preparation and planning for a terrorist act takes some time. It is during that time frame that the concept of general deterrence may have some important effect. Put simply, those planning to commit acts of terror must appreciate that, if they are apprehended in the process of preparing to perpetrate such acts, they will forfeit their liberty to live within our community for a very lengthy period of time. It is in that way that those seeking to enjoy a perverted form of glory, or satisfaction, from the perpetration of such acts, can be brought to understand that the cost to them, if they are intercepted, will be particularly high. Further, and in any event, it is not for the courts to ‘second guess’ the mentality of persons intending to embark on acts of terror. No doubt the mindset of such persons may well vary. The law can only do its best to endeavour to deter such acts, by imposing sentences that may alter the calculations of persons minded to commit such abominable acts as those that were under contemplation in the present case.
Further, the authorities have made it clear, and properly so, that the concepts of protection of the community, and incapacitation of the offender, are separate considerations to that of general deterrence. As we have stated, the very purpose of provisions, such as s 101.6, contained in Div 101 of the Criminal Code, is to intercept and interrupt planned acts of terror. Persons who commit such an offence ordinarily only desist from doing so because they are apprehended. As such, at the time of their apprehension, they are, a fortiori, persons who pose a very real danger to the community. Unless the courts give adequate weight to the concepts of protection and incapacitation, they would fail to comply with the clear intent of the legislature in creating offences of the type with which this case is concerned.[25]
[25]Lodhi v The Queen (2007) 179 A Crim R 470, 492–494 [94]–[109] (Spigelman CJ).
It follows that, given the nature of the offence, and the purpose of the statutory provisions, mitigating factors of a personal nature, such as prospects of rehabilitation and the like, are given substantially less weight than in other forms of offending. In Lodhi v The Queen, Price J stated:
In determining the sentence to be passed the matters identified in section 16A(1) and (2) of the Crimes Act must be taken into account. These matters include subjective circumstances of the offender: section 16A(2)(m); and the prospect of rehabilitation: section 16A(2)(n). Rehabilitation and personal circumstances should often be given very little weight in the case of an offender who is charged with the terrorism offence. A terrorism offence is an outrageous offence and greater weight is to be given to the protection of society, personal and general deterrence and retribution.[26]
[26]Ibid 539 [274]; see also 494 [109] (Spigelman CJ).
In the present case, the respondent was only 17 years of age at the time of the offending. Ordinarily, and in general, the youth of an offender is an important mitigating circumstance. It is relevant to an assessment of the moral culpability of the offender, as the law recognises that the immaturity and impressionability of youth may be, and commonly is, an important contributing factor to the involvement of a young offender in the crime for which that offender is to be sentenced.[27] In addition, the law regards the rehabilitation of young offenders of substantial, if not primary, importance, not only in the interests of the offender, but also in the interests of the community.[28]
[27]DPP v SJK & GAS [2002] VSCA 131, [61] (Phillips CJ, Chernov and Vincent JJA).
[28]R v Mills [1998] 4 VR 235, 241 (Batt JA).
On the other hand, it is recognised that those principles need to be appropriately moderated where, as in a case such as this, the offender has been involved in serious and dangerous offending.
In DPP v Lawrence,[29] the offender was convicted of intentionally causing serious injury in circumstances in which, under the influence of alcohol and drugs, he had brutally attacked a companion, repeatedly kicking him, bashing him, and stabbing him with a broken bottle. In allowing an appeal by the Director against the sentence imposed on the offender, Batt JA (with whom Winneke P and Nettle JA agreed) stated:
Further, as the cases make clear, with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender’s youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations. They must, as the President said in Wright, take a ‘back seat’ to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that, as this very case exemplifies, the persons who commit the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both.[30]
[29](2004) 10 VR 125.
[30]Ibid 132 [22] (citations omitted).
In Azzopardi v The Queen,[31] the three applicants, who were each young, had pleaded guilty to a number of charges of armed robbery and related assaults. Redlich JA (with whom Coghlan AJA and Macaulay AJA agreed), having reviewed the authorities relating to sentencing principles concerning youth, stated:
The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[32]
[31][2011] VSCA 372.
[32]Ibid [44] (citations omitted); see also DPP v Ghazi [2015] VSCA 188 [35].
In IE v The Queen,[33] the applicant, who was 16 years of age, was convicted on five counts of sexual assault of a 15 year old school girl/shop assistant in circumstances of significant gravity. The New South Wales Court of Criminal Appeal dismissed the applicant’s appeal, Latham J (with whom Spigelman CJ and Hulme J agreed), stating:
It is not the youth of an offender per se that justifies the amelioration of a sentence that would otherwise be imposed, in accordance with the common law principles underlying s 6 of the Children (Criminal Proceedings) Act (the Act). It is only where the circumstances of a particular juvenile offender and the circumstances of a particular offence indicate that general deterrence and retribution ought play a lesser role, that the principles are given their full expression: R v Voss [2003] NSWCCA 182. The greater the objective gravity of an offence, the less likely it is that retribution and general deterrence will cede to the interests of rehabilitation. Given the serious criminality inherent in these offences, together with the assessment of the applicant as an offender within the lower end of the medium to high risk of re-offending, there was little scope for the operation of the principles under the Act.[34]
[33](2008) 183 A Crim R 150.
[34]Ibid 155 [16] (citation omitted).
Analysis
The seriousness of the offence, to which the respondent pleaded guilty, is reflected by the maximum sentence of life imprisonment prescribed by the Criminal Code. Terrorist acts, of the kind planned and prepared by the respondent, are calculated to, and do, cause widespread carnage and suffering amongst civilian populations. Their objective is to strike at the heart of our liberal, democratic and tolerant society. Such actions, and the conduct indulged in by the respondent, are driven by a depraved and evil ideology and mentality, which are anathema to the fundamental values of our nation.
In this case, the respondent planned and prepared to assemble and use bombs for the purpose of causing indiscriminate and significant death, injury and suffering amongst our community. The acquisition, and planned use, by the respondent of large quantities of screws, as shrapnel in the bombs, is a clear demonstration of his intent in that regard. The terrorist acts, planned and prepared by the respondent, were directed specifically against innocent and entirely defenceless citizens. As such, the actions, and the underlying intent of the respondent, were entirely morally bankrupt and totally cowardly. The fact that such actions, on occasions, involve the deliberate, or accidental, death of the terrorist, does not invest them with any skerrick of courage, as they are ordinarily accompanied by a warped sense of self-righteous martyrdom and self-glorification.
In the present case, the respondent planned and prepared the proposed terrorist actions over a period of time. He was diligent and methodical in doing so. At all times, he was a willing recipient of the propaganda and instructions given to him by his interlocutor. He formulated his plans, and carried out his preparations, in a secretive manner, which he concealed from close members of his family, and by using a variety of deceptions.
During that period, the mentality of the respondent was one of total callousness. He was devoid of any sense of conscience about the human tragedy and suffering that he was planning to inflict in the midst of the community of which he was a member. It is extraordinary that the respondent, who knew of, and was shocked by, the senseless and appalling carnage currently being inflicted on civilians in Syria, could not experience the same sense of empathy and compassion for his intended victims. In none of the intercepted communications by the respondent, is it possible to detect any sense of hesitation or doubt by the respondent about what he was proposing to do.
It is for those reasons that, on any calculation, the moral culpability of the respondent must be assessed as being at a very high level for the purpose of determining the appropriate sentence to be imposed on him. Certainly, to some extent, his youth and immaturity at the time must be weighed in the balance in determining the level of his culpability. However, he had the benefit of a good upbringing, and he had progressed well in his education, until he was diverted by his increasing devotion to the extremist propaganda of ISIS. According to Mr Coffey, he did not suffer from any mental impairment at the time of the offending. He was, as we have stated, young and impressionable, and thus more prone to being corrupted than an older person. However, equally, he was not a child, in the ordinary sense of that word, at the time of his offending. At the age of 17 years, he stood on the threshold of adulthood. He was old enough to know that what he was doing was grossly wrong, to give some thought to the enormity of the actions that he was planning to carry out, and to resist the allure of the evil influence of Islamic State. For those reasons, while the respondent’s youth is relevant, nevertheless, and taking that factor into account, his moral culpability cannot be described as being other than very great indeed.
As the authorities, to which we have referred, make plain, while youth is relevant in determining the weight to be given to general deterrence and denunciation in the sentencing equation, its weight is diminished, quite measurably, in cases such as this, in which a youthful offender either participates in, or plans to carry out, actions of extreme violence. The protection of our society, and the upholding of its most fundamental values, necessitate that in cases such as this the sentencing considerations of general deterrence and denunciation must be given primacy above the ameliorating effect of youth.
In the same way, while the potential rehabilitation of the respondent is an important sentencing factor, nevertheless, in a case such as this, it must give way, to a significant degree, to the requirements that the sentence be adequate so as to sufficiently express the court’s and the community’s repugnance at the actions and intentions of the respondent, and to deter other like-minded other young people from embarking on, and proceeding down, the same pathway that the respondent chose to undertake. In addition, in the present case, while the respondent has, commendably, commenced to undertake important transformative steps, in respect of his attitude to the community, and to the dictates of Islamic State, nevertheless, as the evidence to which we have referred makes plain, and as found by the judge,[35] his reformation, and rehabilitation, is far from complete. In particular, as stated by Mr Coffey, he has not demonstrated, in any sufficient degree, a sense of contrition for the appalling acts of violence that he was intending to carry out. It is also relevant that the transformation that the respondent has undergone has occurred in an environment in which he is, to a significant extent, sheltered from the kind of influences that impelled him to engage in the conduct that constituted his offending.
[35]Reasons, [60].
The respondent’s plea of guilty was an important mitigating circumstance which the judge properly took into account. As his Honour found, it was an early plea, and it furthered the interests of justice. While the case against the respondent was strong, nevertheless it is the experience of the courts that persons, in the position of the respondent, seek to defend the charges against them, rather than plead guilty, in order to be able to use the court hearing as a forum for their views. In addition, the fact that the respondent was prepared to give evidence, and face cross-examination, on his plea, and in doing so, to renounce and denounce Islamic State, were significant mitigating circumstances.
In the course of submissions, we have been referred to the sentences that have been imposed in other cases involving offences of terrorism, and which have been upheld on appeal. They include Lodhi v The Queen,[36] Elomar v The Queen,[37] Benbrika v R[38] and Fattal v The Queen.[39] In addition we were referred to the sentences imposed by sentencing judges in R (Cth) v Touma[40] and R v Al-Kutobi; R v Kiad.[41]
[36](2007) 179 A Crim R 470.
[37][2014] NSWCCA 303.
[38](2010) 29 VR 593.
[39][2013] VSCA 276.
[40][2008] NSWSC 1475.
[41][2016] NSWSC 1760.
The principles, relating to the use of comparable cases, have been discussed in a number of decisions of the High Court over the last 15 years, including in Wong v The Queen;[42] Hili v The Queen;[43] Green v The Queen;[44] Barbaro v The Queen; Zirilli v The Queen[45] and R v Pham.[46] They have also been considered in a number of decisions in this Court, including Hudson v R[47] and DPP (Cth) v Thomas.[48]
[42](2001) 207 CLR 584, 591 [6] (Gleeson CJ).
[43](2010) 242 CLR 520, 534 [44], 535 [48]–[49].
[44](2011) 244 CLR 462.
[45](2014) 253 CLR 58.
[46](2015) 325 ALR 400, 405–6 [26]–[28] (French CJ, Keane and Nettle JJ).
[47][2010] VSCA 332, [28]–[33] (Ashley, Redlich and Harper JJA).
[48][2016] VSCA 237, [171]–[187].
In Lieu v The Queen,[49] this Court summarised the relevant principles in terms that are sufficient for the purposes of this appeal as follows:
Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of comparable cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences. Rather, the process is directed to achieving consistency in the application of relevant legal principles. For that reason, so-called ‘comparable cases’ are not precedents. In the context of sentencing, no two cases can be alike. The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge. Nevertheless, reviewed as a whole, ‘comparable cases’ may assist by revealing a possible range or pattern of previous sentences. However, the cases, to which we have referred, caution that examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.[50]
[49][2016] VSCA 277.
[50]Ibid [46] (Redlich, Beach and Kaye JJA).
The cases involving offences of terrorism, to which we have referred, are, relatively, few in number, which limits their utility from the point of view of establishing any appropriate ‘range’ of sentences applicable to the present case. The facts and circumstances of each of those cases, and the factors relevant to sentencing in those cases, vary quite markedly. Taken as a whole, the sentences imposed in those cases reflect the application of the principles to which we have referred, and in particular, the primacy that is to be accorded to the considerations of general deterrence and denunciation above the personal circumstances of the offender. To that extent, the cases are of some, albeit limited, assistance in determining the outcome of this appeal.
In the upshot, as we have stated, the offending in this case was particularly serious. Notwithstanding the age of the appellant, and the steps that he has taken to rehabilitation, the principles of general deterrence and denunciation are of primary importance. Unless appropriate weight is given to those considerations in a case such as this, the criminal justice system will not have sufficiently discharged its duty to properly express the community’s outrage at the conduct of the respondent, and to deter other like-minded individuals from indulging in the same or related conduct.
Taking those matters into account, and notwithstanding the weight to be accorded to the mitigating factors of youth, rehabilitation and the respondent’s guilty plea, we are persuaded that the head sentence, and the non-parole period, imposed on the respondent, are manifestly inadequate, in the sense that they are well outside the range of sentence that was reasonably open to the sentencing judge in the circumstances of this case. Put shortly, a sentence of 7 years’ imprisonment with a non-parole period of 5 years and 3 months is, in our view, wholly inadequate to vindicate the principles of denunciation and general deterrence, even giving full weight to the mitigating circumstances to which we have referred. Further, we are persuaded that there is no reason why we should exercise the residual discretion, so as to decline to intervene in fixing a different sentence.
In re-sentencing the respondent, we take into account the principles, and matters, to which we have referred. If it were not for the plea of guilty, the respondent’s youth and his partial reformation, the sentence, that we would impose on the respondent, would be considerably greater than that which we are minded to fix by way of re-sentence. In the circumstances, and taking those matters into account, we would re-sentence the respondent to a term of imprisonment of 11 years, with a non-parole period of 8 years and 3 months.
There is some debate as to whether s 6AAA of the Sentencing Act 1991 applies to sentences for Commonwealth offences. However, the usual practice, in this State, is to make a declaration, under that section, when sentencing an offender for such offences. In the present case, as in most cases, the process, required to be undertaken by a sentencing court under 6AAA, is artificial, both because the determination of a sentence in any case is not a mathematical process, and, in addition, because ordinarily an offender’s plea of guilty has a necessary interrelationship with other factors, including the offender’s rehabilitation. Nevertheless, and taking into account those qualifications, if not for the respondent’s plea of guilty, we would have re-sentenced him to a term of imprisonment of 16 years with a minimum non-parole of 12 years.
In arriving at the new sentence, we are of course aware that in Benbrika v R,[51] significantly lower sentences were imposed for the very serious terrorism offences there committed. Those sentences may have been regarded as within range at that time. However, having regard to the scourge of modern terrorism, and the development of more recent sentencing principles in this area, they seem to us to have been unduly lenient. No such sentences would have been imposed today.
[51](2010) 29 VR 593.
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