Elmir v R

[2021] NSWCCA 19

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Elmir v R [2021] NSWCCA 19

Hearing dates:

12 October 2020

Decision date:

26 February 2021

Before:

McCallum JA [1];
Garling J at [73];
Wright J at [74]

Decision:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

Catchwords:

CRIME – sentencing – federal offences – where applicant pleaded guilty to a foreign incursion offence contrary to part 5.5 of the Commonwealth Criminal Code – where sentencing judge had regard to principles developed in respect of terrorism offences contrary to part 5.3 of the Code – whether sentencing judge erred in sentencing the applicant by reference to principles applicable to terrorism offences under part 5.3 rather than foreign incursion offences under part 5.5 – consideration of the notion that there exist discrete principles applicable exclusively to particular kinds of offence in light of the overarching principle in Markarian – whether extent of radicalisation at the time of offending legally irrelevant to foreign incursion offences – whether sentencing judge erred in having regard to statements in terrorist cases concerning the weight to be given to the protection of the community when sentencing the applicant for a foreign incursion offence

Legislation Cited:

Acts Interpretation Act 1901 (Cth) s 15AB

Counterterrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth) sch 1 cl 110, sch 1 cl 36

Crimes Act 1914 (Cth), ss 3, 19AG

Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 7(1)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A(2)

Criminal Code (Cth), ss 100.1(1), 117, 119.4

Cases Cited:

Director of Public Prosecutions (Cth) v El Sabsabi [2017] VSCA 160

Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360

Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25

Marsh v R [2015] NSWCCA 154

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

R v Alqudsi [2016] NSWSC 1227

R v Betka [2020] NSWSC 77

R v Biber [2018] NSWCCA 271

R v EB [2018] NSWSC 201

R v Elmir(No 3) [2019] NSWSC 1040

R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691

R v Rogerson; R v McNamara (No 57) [2016] NSWSC 1207

R v Succarieh (2017) 266 A Crim R 420; [2017] QCA 85

R v Sulayman Khalid [2017] NSWSC 1365

R v Taleb(No 5) (Sentence) [2019] NSWSC 720

Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Yang v R (2012) 219 A Crim R 550; [2012] NSWCCA 49

Category:

Principal judgment

Parties:

Amin Elmir (Applicant)
Crown (Respondent)

Representation:

Counsel:
C Parkin and A Vial (Applicant)
T McDonald SC and S Duggan (Respondent)

Solicitors:
Lawyers Corp (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2020/173325

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2019] NSWSC 1040

Date of Decision:

16 August 2019

Before:

Davies J

File Number(s):

2016/384538

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant travelled to Turkey in 2016 and attempted to find ways to cross the border into Syria to join and fight for Islamic State. During that time, he collected military equipment, was accepted into and then evicted from an Islamic State safe house and was ultimately arrested by Turkish Police. He was subsequently deported back to Australia.

The applicant was charged with a foreign incursion offence contrary to s 119.4(1) of the Commonwealth Criminal Code to which he pleaded guilty in the Supreme Court. He was sentenced to a term of imprisonment for 5 years and 5 months with a non-parole period of 4 years and 1 month. He sought leave to appeal against the sentence.

The single ground argued on appeal was that the sentencing judge erred in sentencing the applicant by reference to principles applicable to sentencing for a terrorism offence under part 5.3 of the Criminal Code rather than a foreign incursion offence under part 5.5. Two specific errors were alleged: (1) that there was error in the assessment of the objective seriousness of the offending by wrongly taking into account the applicant’s radicalisation; and (2) that there was error in treating the protection of the community as deserving of particular weight.

Held (per McCallum JA; Garling J and Wright J agreeing), granting leave to appeal but dismissing the appeal:

The proposition that there exists a discrete body of principles relating exclusively to terrorism offences the consideration of which would be legally irrelevant to a foreign incursion offence misconceives the sentencing task. The correct approach is always to identify all the factors relevant to the sentence, discuss their significance and make a value judgment as to what is the appropriate sentence given all the factors of the case: at [12], [37]. Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25 applied.

The definition of a “terrorist act” in s 100.1(1) of the Criminal Code includes fault elements that are absent from the definition of engaging in hostile activity in s 117 of the Code. To characterise foreign incursion offences as “a species of terrorism” attracting the application of a particular set of principles invites error. To the extent that the sentencing judge was invited to take that erroneous approach his Honour resisted it: at [35]-[37], [66].

While the fault element for foreign incursion offences does not include the features required to prove a terrorist act, radicalisation may nonetheless be a relevant factor in the circumstances of a particular case. The extent of an offender’s radicalisation at the time of offending is not necessarily legally irrelevant to the assessment of the objective seriousness of a foreign incursion offence: at [40] and [48].

The sentencing judge’s characterisation of the applicant’s offence as one in which protection of the community was a significant matter to be taken into account does not reveal error. The weight to be given to that factor was a matter for the sentencing judge in the exercise of his discretion: at [71].

Judgment

1. McCALLUM JA: The Commonwealth Criminal Code, in addition to stating general principles of criminal responsibility, includes a number of chapters that create substantive federal offences. One is chapter 5, which is concerned with the security of the Commonwealth. The offences in that chapter include offences that have been recognised for centuries as threats to sovereign security, such as treason and espionage (dealt with in parts 5.1 and 5.2) as well as offences conceived more recently in response to emerging threats to Australia’s national interest such as terrorism offences (dealt with in part 5.3), offences of harming Australians outside Australia (dealt with in part 5.4) and foreign incursion and recruitment offences (dealt with in part 5.5).

2. Apart from being drawn together under the common theme that they concern the security of the Commonwealth, the terrorism offences contained in part 5.3 and the foreign incursion offences contained in part 5.5 have at least one further feature in common, which is that both are included within the definition of “terrorism offences” in s 3 of the Crimes Act 1914 (Cth) (it will be necessary to return to consider the significance of that designation). Obviously, however, parts 5.3 and 5.5 address different criminality and the offences they create have different elements.

3. The applicant in the present case pleaded guilty in the Supreme Court to a foreign incursion offence contrary to s 119.4(1) of the Code, which falls within part 5.5. He was sentenced to a term of imprisonment for 5 years and 5 months commencing on 22 April 2017 and expiring on 21 September 2022 with a non-parole period of 4 years and 1 month expiring on 21 May 2021: R v Elmir (No 3) [2019] NSWSC 1040. He seeks leave to appeal against that sentence.

4. The single ground argued on appeal is that the sentencing judge (Davies J) erred in sentencing the applicant by reference to principles applicable to sentencing for a terrorism offence under part 5.3 of the Criminal Code rather than a foreign incursion offence under part 5.5. For the reasons that follow, I have concluded that the applicant’s argument is misconceived and that the appeal must be dismissed.

Circumstances in which the charge was brought

5. The facts were agreed at the proceedings on sentence and may be summarised as follows.

6. In April 2016, the applicant travelled with his family from Sydney to Saudi Arabia for a religious pilgrimage to Mecca. Following an argument with his parents, he left their company and, instead of returning to Australia with them, travelled to Istanbul in Turkey. He remained in Turkey for about two months trying to find a way to cross the Turkish border into Syria to join and fight for Islamic State. At some point he was accepted into an Islamic State safe house (called a ‘makar’ in Arabic). During that time, he collected military equipment and made contact with various people seeking assistance with crossing the border into Syria. One of the people he was in contact with during that time was EB, a young person who happened to be under surveillance by the Australian Federal Police. Their exchanges (via the encrypted messaging application, ‘Telegram’) revealed that EB was assisting the applicant in his efforts to find a way to cross the border and was encouraging him to fulfil that objective. By the time Davies J sentenced the applicant, his Honour had already sentenced EB for related offences: R v EB [2018] NSWSC 201.

7. On 3 June 2016, the applicant’s Australian passport was cancelled. On 18 June 2016, he was ejected from the makar where he was staying as a result of a religious disagreement. Messages sent by the applicant to EB at around that time reveal that he had become aware of the cancellation of his passport.

8. On 20 June 2016, the applicant’s father travelled to Turkey with the object of finding his son and bringing him back to Australia. In the meantime, however, the applicant was detained by Turkish National Police and put in immigration detention. On 30 June 2016 he was deported from Turkey to Australia on an emergency passport issued by the Australian Consulate General’s Office in Turkey.

9. Police searched the applicant upon his arrival in Australia but found nothing of interest. He declined to be interviewed then and in response to subsequent requests. He was eventually arrested and charged on 22 December 2016.

10. The applicant was charged with an offence commonly termed a preparatory offence. The substantive offence of foreign incursion is contained in s 119.1 of the Code, which makes it an offence punishable by imprisonment for life to enter a foreign country with the intention of engaging in a hostile activity in that or any other foreign country. The applicant intended to engage in hostile activity by fighting for Islamic State in Syria but never made it across the border (he was described by EB as “a stranded brother”). However, s 119.4(1) criminalises conduct anterior to the commission of the substantive offence, making it an offence, also punishable by imprisonment for life, to engage in conduct preparatory to the commission of an offence against s 119.1. The preparatory conduct relied upon to sustain the charge was that the applicant “travelled to Turkey with the intention of crossing into Syria; stayed in an Islamic State safe house in Turkey; sought the assistance of others to help him cross the border from Turkey into Syria, sought the assistance of others to help him make contact with persons connected to Islamic State; and obtained military equipment” (agreed facts, par 4).

Applicant’s argument: sentencing by reference to principles applicable to terrorism

11. The single ground of appeal relied upon by the applicant is as follows:

“The Sentencing Judge applied a wrong principle, or took into account irrelevant considerations, in sentencing the Applicant by reference to principles applicable to sentencing for an offence under Part 5.3 of the Criminal Code (Terrorism) rather than an offence under Part 5.5 of the Criminal Code (Foreign Incursion and Recruitment):

(1)    Error in the assessment of the objective seriousness of the offending by wrongly taking into account the Applicant’s radicalisation.

(2)    Error in treating the protection of the community as deserving of particular weight.”

12. While the ground as framed specifies two particular errors in pars (1) and (2), much of the applicant’s argument was directed to the overarching proposition as to the alleged wrongful application of principles applicable to terrorism. That assumes the existence of a discrete body of principles relating exclusively to terrorism offences, the consideration of which would be legally irrelevant to a foreign incursion offence. To be fair to the applicant, it should be acknowledged that the argument has its roots in the fact that the Crown’s sentencing submissions tended to treat foreign incursion as a species of terrorism that should be punished as such. With respect, that was unhelpful. As I will explain, in my view the applicant’s argument misconceives both the nature of the sentencing task and the approach in fact taken by the sentencing judge in the present case.

Significance of the legislative history

13. The applicant’s argument rested in part on judicial consideration of the foreign incursion offences that preceded the introduction of part 5.5 of the Criminal Code. The predecessor to the offence to which the applicant pleaded guilty was s 7(1) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The Commonwealth parliament’s decision to move foreign incursion offences into the Criminal Code was implemented by the enactment in 2014 of the Counterterrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth).

14. The offence to which the applicant pleaded guilty was an offence contrary to s 119.4(1) of the new part 5.5, which provides:

119.4  Preparations for incursions into foreign countries for purpose of engaging in hostile activities

Preparatory acts

(1)  A person commits an offence if:

(a)  the person engages in conduct (whether within or outside Australia); and

(b)  the conduct is preparatory to the commission of an offence against section 119.1 (whether by that or any other person); and

(c)  when the person engages in the conduct, the person:

(i)  is an Australian citizen; or

(ii)  is a resident of Australia; or

(iii)  is a holder under the Migration Act 1958 of a visa; or

(iv)  has voluntarily put himself or herself under the protection of Australia; or

(v)  is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty:  Imprisonment for life.

15. The applicant noted that, before foreign incursion offences were moved into the Criminal Code (where they now sit alongside the terrorist offences in part 5.3), it had been recognised at the appellate level by this Court and in other States that an offence against the former Crimes (Foreign Incursion and Recruitment) Act did not include as an element that the offender’s conduct was in furtherance of terrorism. The applicant referred in that context to the decision of this Court in R v Biber [2018] NSWCCA 271 at [38], the decision of the Queensland Court of Appeal in R v Succarieh (2017) 266 A Crim R 420; [2017] QCA 85 at [142] and the decision of the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v El Sabsabi [2017] VSCA 160 at [47]-[48]. Those authorities confirm a proposition that, with respect, cannot be disputed. It was put succinctly by the Victorian Court of Appeal in El Sabsabi at [48]: an offender “who falls to be sentenced in relation to an offence that does not have an element that his conduct was in furtherance of terrorism should not be sentenced as if the offence contained such an element.”

16. In Succarieh, the Queensland Court of Appeal was careful to reject an argument that had been put by the prosecution to the sentencing judge but evidently not taken up by her Honour. The Court of Appeal took the argument to be suggesting that “in the consideration of the matters of deterrence, punishment, denunciation and other relevant factors”, the sentencing judge “should be mindful that a purpose of the Act was to prevent terrorism, and not only in a foreign State but in Australia”. McMurdo JA explained at [142] (in remarks with which Morrison JA and Bond J agreed at [135] and [143]):

“That argument created the risk of an incorrect reasoning by the sentencing judge, by which the present offences could have been treated as terrorist related. But that more serious case against him had been abandoned. He was to be sentenced upon the basis of his guilt under s 7(1) of the Act, which did not include the element that his conduct was in furtherance of terrorism. It is fortunate that the sentencing judge appears not to have accepted the prosecution argument.”

17. At the same time, McMurdo JA observed at [139] that there could “undoubtedly” be cases where the activity relied upon to support a charge of foreign incursion under the old Act was “in the nature of terrorism”. The point was that the offence of entering a foreign State with intent to engage in a hostile activity in that State did not include as an element that the conduct was in furtherance of terrorism; hence error if a person were sentenced as if it did.

18. In El Sabsabi at [48], after endorsing those remarks of McMurdo JA, the Victorian Court of Appeal said:

“It follows that, in relying upon the respondent’s statements about his particular beliefs in relation to killing in the name of Allah or the creation of an Islamic caliphate, the appellant overstated the objective gravity of the offences committed by the respondent to which he pleaded guilty. While the respondent’s statements are a matter of serious concern and are properly to be taken into account as part of the matrix of facts that must be synthesized in the sentencing discretion, they are not matters that elevate the objective seriousness of the actual offences.”

19. In Biber at [38], this Court explained the importance of distinguishing between terrorist offences and offences that do not have the furtherance of terrorism as an element by reference to the particular weight to be given to deterrence and protection in the case of terrorist offences:

“In cases involving terrorist acts, or preparation to commit terrorist acts, the principles of general deterrence and protection of the community are given significant weight: Director of Public Prosecutions (Cth) v MHK (2017) 52 VR 272 at [51]; [2017] VSCA 157; citing Lodhi v The Queen (2007) 179 A Crim R 470; [2007] NSWCCA 360 (Spigelman CJ). The Crown accepts that the offence to which the respondent pleaded guilty was not a terrorist offence.”

20. The applicant noted that the point made in those cases has been endorsed since (and notwithstanding) the introduction of part 5.5 of the Criminal Code. In R v Betka [2020] NSWSC 77, in which the offender was sentenced for an offence of engaging in a hostile activity in Syria contrary to s 119.1(2) in part 5.5 of the Criminal Code, Harrison J accepted at [1] that such an offence is “not the same” as a terrorism offence under part 5.3 of the Code, citing the decisions discussed above. In so doing, his Honour implicitly accepted that the remarks made in those decisions remain applicable notwithstanding the repositioning of foreign incursion offences into the Criminal Code. The burden of the argument put in support of the present appeal is that Davies J failed to draw the same distinction and accordingly fell into error.

Crown’s response to the argument

21. The Crown’s primary submission was that Davies J did not apply principles applicable (exclusively) to terrorism offences but appropriately took into account factors relevant in determining the objective seriousness of the foreign incursion offence including the applicant’s ideology at the time of the offending. The Crown submitted that the extent of the applicant’s commitment to radical Islamist ideology during that period was relevant to the assessment of his intention of engaging in a hostile activity in Syria. As to subjective factors, the Crown submitted that community protection was a relevant consideration and that the sentencing judge placed appropriate weight on that matter.

21. In the alternative, however, the Crown submitted that if Davies J did treat the applicant as having committed a “terrorism offence”, there was no error. The basis for that submission was that, in light of the legislative changes that resulted in the repositioning of foreign incursion offences into chapter 5 of the Criminal Code and the inclusion of those offences in the definition of a “terrorism offence” for the purposes of the Crimes Act 1914, the cautionary statements made in the authorities discussed above concerning the Crimes (Foreign Incursions and Recruitment) Act are “inapposite as regards the modern offences under the Criminal Code”.

22. For the reasons set out later in this judgment, I accept the Crown’s primary submission that no error has been established in the decision of the sentencing judge. Accordingly, it is not strictly necessary to address the Crown’s alternative submission. However, as my conclusion concerning the primary submission is informed in part by my assessment of the alternative submission, it is appropriate to explain my conclusions concerning that argument.

Has the previously recognised distinction between terrorism and foreign incursion survived legislative change?

24. The principal changes effected by the Counterterrorism Legislation Amendment (Foreign Fighters) Act were the repositioning of foreign incursion offences to sit within chapter 5 following the existing terrorism offences and other offences concerned with security of the Commonwealth; a broadening of the scope of persons whose conduct might be criminalised under those provisions and the increase in the maximum penalty: sch 1 to the Counterterrorism Legislation Amendment (Foreign Fighters) Act, cl 110.

25. Separately, as already noted, the foreign incursion offences now contained in part 5.5 of the Criminal Code were included, together with the terrorism offences contained in part 5.3 of the Code, within the definition of “terrorism offences” in s 3 of the Crimes Act 1914: sch 1 to the Counterterrorism Legislation Amendment (Foreign Fighters) Act, cl 36. The adoption of that definition for the purposes of that Act did not change the elements of the offences in the Criminal Code; the applicant’s argument is correct to that extent and I did not understand the Crown to contend otherwise.

26. However, the Crown submitted that Parliament’s relocation of the foreign incursion provisions into part 5.5 of the Criminal Code “changed the relevant context in which the provisions are to be understood and applied.”

27. The Crown relied in this context on the extrinsic materials concerning the legislation that introduced the changes, as allowed by s 15AB of the Acts Interpretation Act 1901 (Cth). First, the Crown referred to the revised explanatory memorandum, which included the following statement:

“Australia faces a serious and ongoing threat. The escalating terrorist situation in Iraq and Syria poses an increasing threat to the security of all Australians both here and overseas. Existing legislation does not adequately address the domestic security threats posed by the return of Australians who have participated in foreign conflicts or undertaken training with extremist groups overseas (‘foreign fighters’).”

28. The revised explanatory memorandum later explained by reference to statistics that a significant number of Australians have been recruited in Australia and engaged as foreign fighters in conflicts in Syria and Iraq. The explanation continued:

“When these individuals return to Australia, they often possess enhanced capabilities to undertake terrorist and other acts that could threaten the Australian government and people in Australia.”

29. As to the inclusion of foreign incursion offences within the definition of “terrorism offences” in s 3 of the Crimes Act 1914, the Crown noted that this was a direct implementation of a recommendation made by the independent national security legislation monitor, Bret Walker SC, who stated in his 2014 annual report:

“The Foreign Incursions Act criminalises politically motivated violence, including conduct that would fit within the meaning of “terrorist act” under the Criminal Code. The definition of “politically motivated violence” under sec 4 of the ASIO Act includes “acts that are offences punishable under the [1978 Act]”. The [1978 Act] also criminalises engaging in hostile activity with an organisation which is a prescribed terrorist organisation under the Criminal Code. There is no reason in principle or policy to distinguish between the offences under the [1978 Act], which cover potentially very serious terrorist activity, from terrorism offences under the Criminal Code.”

30. Those remarks were concerned with the policy that should apply to conduct that is criminalised under the foreign incursion provisions but which is also such as to fall within the meaning of a “terrorist act”. However, as the report implicitly accepts (by the words “including conduct” etc), not all foreign incursion offences involve such conduct. That qualification echoes what McMurdo JA said in Succarieh at [139] referred to above, that foreign incursion offences could undoubtedly include cases in which the activity relied upon to support the charge was “in the nature of terrorism”. It is important not to lose sight of the fact that foreign incursion offences do not necessarily involve “very serious terrorist activity” (to adopt Mr Walker’s words), nor indeed do they necessarily involve conduct that would amount to a terrorist act at all. If there were an exact overlap between foreign incursion and terrorism, the maintenance of the separate offences in part 5.5 would have been unnecessary.

31. To the extent that the legislation enacted to implement the policy recommended by the independent national security legislation monitor fails to discriminate between conduct that falls within the meaning of a “terrorist act” and conduct that does not, far from warranting a blanket judicial principle treating all foreign incursion offences as acts of terrorism or acts in furtherance of terrorism, it is all the more important for a sentencing judge to consider the nature of the particular conduct charged.

32. For those reasons, in my respectful opinion, each party’s submissions were partly right and partly wrong. The applicant is right in saying that the legislative changes discussed above did not effect any change to the elements of foreign incursion offences. However, I do not accept his submission that those changes have no significance in the present context. The Crown is right in identifying some significance in the alignment of foreign incursion offences with existing terrorist offences (in their repositioning under the rubric of matters concerning the security of the Commonwealth); in the increase to the maximum penalty (from 10 years to imprisonment for life) and in their inclusion in the definition of a “terrorism offence” for the purposes of the Crimes Act 1914.

33. The designation of a foreign incursion offence as a “terrorism offence” for that purpose has important consequences for the application of the procedural and sentencing provisions of that Act, significantly including the removal of the discretion the sentencing judge would otherwise have to structure a sentence so as to allow an offender to be released on parole earlier than three quarters of the way into the sentence imposed: s 19AG of the Act. As submitted by the Crown, those changes indicate a change in the seriousness with which crimes of foreign incursion are viewed.

34. However, there is a danger in adopting the taxonomy of the Crimes Act 1914 for all purposes, as invited by the Crown’s submission that “foreign incursion offences should be treated as a species of terrorism”. I do not accept that submission.

35. The term “terrorist act” is defined in s 100.1(1) of the Criminal Code as follows:

"terrorist act" means an action or threat of action where:

(a) the action falls within subsection (2) and does not fall within subsection (3); and

(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c) the action is done or the threat is made with the intention of:

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii) intimidating the public or a section of the public

36. The definition of engaging in hostile activity in s 117 of the Code does not include the elements of intention of “advancing a political, religious or ideological cause” or “coercing, or influencing by intimidation” the relevant government. That definition provides:

"engage in a hostile activity": a person engages in a hostile activity in a foreign country if the person engages in conduct in that country with the intention of achieving one or more of the following objectives (whether or not such an objective is achieved):

(a) the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country);

(b) the engagement, by that or any other person, in action that:

(i) falls within subsection 100.1(2) but does not fall within subsection 100.1(3); and

(ii) if engaged in in Australia, would constitute a serious offence;

(c) intimidating the public or a section of the public of that or any other foreign country;

(d) causing the death of, or bodily injury to, a person who is the head of state of that or any other foreign country, or holds, or performs any of the duties of, a public office of that or any other foreign country (or of a part of that or any other foreign country);

(e) unlawfully destroying or damaging any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country).

37. They are different offences addressing different criminality. To give foreign incursion offences the label of being “a species of terrorism” in order to justify the application of a particular set of principles to such offences invites error. The same may be said of the undiscerning formulation or application of general principles said to apply to a particular “kind of case” or particular kinds of offence. The overriding sentencing principle is always the same. As explained by McHugh J in Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25 at 351 [51], the correct approach (termed “instinctive synthesis”) is “the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case”. Principles developed judicially may be helpful in giving more concrete guidance in relation to particular kinds of offence but the ultimate task is to determine the factors that are relevant to the sentence to be imposed in the individual case.

38. It follows that to say the applicant was sentenced by applying “the principles used for terrorist offences” does not of itself establish error. It is necessary to identify what the relevant principle was and how it was applied.

39. In the present case, to the extent that the prosecution argument at the proceedings on sentence invited Davies J to apply principles stated in cases concerning terrorist offences in an undiscerning way, his Honour did not accede to it.

Objective seriousness – consideration of the applicant’s radicalisation.

40. The first specific error alleged by the applicant is “error in the assessment of the objective seriousness of the offending by wrongly taking into account the applicant’s radicalisation”. As I will explain, while the fault element for foreign incursion offences does not include the features required to prove a terrorist act (intention to advance an ideological cause or to coerce or intimidate government), it does not follow that the extent of an offender’s radicalisation at the time of offending is legally irrelevant to the assessment of the objective seriousness of a foreign incursion offence.

41. The applicant relied on the remarks set out in the sentencing judgment at [28], where Davies J noted that, in the course of sentencing EB, his Honour “had regard to” a judgment of Bellew J in a case involving a terrorist offence as “having relevance for the present sort of offence”. The judgment referred to was R v Sulayman Khalid [2017] NSWSC 1365 at [25]. The applicant contends that, as that decision was concerned with a terrorist offence, and not a foreign incursion offence, it may be seen (from that proposition alone) that the sentencing judge in the present case had regard to a wrong principle.

42. It is clear that Davies J was mindful of the distinction between terrorist offences and foreign incursion offences. His Honour prefaced his reference to the decision of Bellew J with the observation at [27] that there are “few cases giving direct guidance for foreign incursion offences” [emphasis added].

43. The fact that his Honour described foreign incursion offences and terrorist offences in that context as being offences of the same “sort” does not of itself reveal error. It is necessary to identify the particular principle referred to in order to assess whether it was inapplicable to the offence in question.

44. The two particular considerations drawn from the judgment of Bellew J in Sulayman Khalid at [25] which the applicant says were inapplicable in the present case were:

“Matters relevant to assessing the objective seriousness of offending of this nature will include:

…

(iii)   the depth and extent of the radicalisation of the offender as demonstrated (inter alia) by the possession of extremist material and/or the communication of such views to others; and

(iv)   the extent to which the offender has been responsible, by whatever means, for indoctrinating or attempting to indoctrinate others, and the vulnerability or otherwise of the target(s) of the indoctrination, be it actual or intended.”

45. I note that Bellew J’s approach was endorsed by Hamill J in R v Taleb (No 5) (Sentence) [2019] NSWSC 720 at [104], a case concerned with the same offence as the present case. His Honour noted that the decision of Bellew J was then subject to appeal but said his Honour’s statement of relevant factors appeared to be “uncontroversial”.

46. The appeal in Sulayman Khalid has since been determined: Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73. In the appeal, Xiao error was conceded (Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4) and the correctness of Bellew J’s list of matters relevant to assessing the objective seriousness of the offending did not arise. As already explained, however, the relevance of those factors in the case of a foreign incursion offence will depend upon the circumstances.

47. The question in the present case is whether the depth and extent of the radicalisation of an offender at the time of the offending, while obviously relevant to terrorism offences, is legally irrelevant to foreign incursion offences. The applicant’s argument focussed on the fact that ideology is not an element of the foreign incursion offences. He noted by reference to the definition of a “terrorist act” in part 5.3 that almost every offence in that part involves an action done or threat made “with the intention of advancing a political, religious or ideological cause”. He submitted that, by contrast, an offence contrary to s 119.4 is “motive-blind”. The applicant acknowledged that s 119.4 could be contravened by conduct undertaken with the intention identified but submitted “that is not the mischief that the provision is directed to”. The submission continued:

“The purpose of the foreign incursion provisions in the Criminal Code is to “ensure that Australia discharged its international obligation to make criminal the activities of [anyone] who proposed to engage in hostile activities in a foreign state and/or assist foreign fights to do so”: R v Cerantonio at [75]-[77] citing R v Mohamed [2016] VSC at [4]. A person’s views and/or their indoctrination efforts (except, possibly, their efforts to indoctrinate others to engage in foreign hostilities) cannot rationally influence the assessment of the objective seriousness of a section 119.4(1) offence.”

48. I do not accept that submission. I do not accept that it can be said, as a matter of sentencing principle, that it is wrong in a foreign incursion offence to have regard to the depth and extent of an offender’s “radicalisation” at the time of the offending conduct. That said, as explained in Markarian, before having regard to any evidence of radicalisation, it would of course be necessary to identify whether radicalisation was a relevant factor in the circumstances of the particular case and, if so, to assess its significance and give it due weight in the synthesis of relevant factors. Holding extreme views is not an offence in itself and will not necessarily aggravate an offence. It is not beyond imagining that the circumstances in which a person came to be motivated by extreme political, religious or ideological views might form part of a submission in mitigation, for example if a vulnerable or malleable person was moved to uncharacteristic acts of violence under the spell of a charismatic leader.

49. It is appropriate in this context to make one observation about the Crown’s analysis of this issue. The Crown submitted that it is entirely orthodox to assess the objective seriousness of the “nature and circumstances” of an offence by reference to “circumstances personal to the offender that are causally connected to the commission of the offence such as his state of mind”. The authority cited for that proposition was Yang v R (2012) 219 A Crim R 550; [2012] NSWCCA 49 at [34]-[35]; “cf” Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [22].

50. Yang is not authority for the proposition for which it was cited by the Crown. On the contrary, the passages referred to form part of a discussion by R A Hulme J (with whom Macfarlan JA and R S Hulme agreed at [1] and [2]) as to whether the High Court in Muldrock “rejected the notion propounded in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [86] that matters personal to an offender, including a mental illness, can be said to affect the objective seriousness of an offence”. His Honour was careful to note that first instance decisions reflected “different approaches” to that question and concluded at [37] that it was not necessary to decide it. The passages at [34] and [35] selected by the Crown to support its position in the present case set out two of those “different approaches”, including a passage from a sentencing decision of mine.

51. The Crown’s submission also cited the passage from Muldrock at [22], prefaced by the abbreviation “cf” (which means “compare”). That passage from Muldrock does no more than to set out the very proposition in Way posited by R A Hulme J to have been apparently rejected in Muldrock.

52. The discussion in Yang suggests that the decision in Muldrock may have resulted in a different misconception in place of the one it quelled. Muldrock was concerned with the meaning of a particular phrase in a particular statute, specifically the phrase “objective seriousness” in provisions concerning standard non-parole periods in a New South Wales statute. Section 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) then provided:

“For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.”

53. The section thus posited the construct of a hypothetical mid-range offence (just as the maximum penalty posits the construct of a hypothetical most serious offence). The High Court concluded at [27] that meaningful content could not be given to that concept taking into account characteristics of the offender. The Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

54. However, as explained by R A Hulme J in Yang at [38], the decision in Muldrock did not derogate from the principle that an offender’s moral culpability might be reduced for reasons such as mental illness or a disadvantaged upbringing. When such a matter is raised, it is necessary for the sentencing judge to assess its significance, along with all other relevant factors, in making a judgment as to the appropriate sentence to impose, in accordance with the approach explained in Markarian (expressly endorsed in Muldrock at [26]).

55. In any event, the vexed question as to the way in which circumstances personal to an offender such as cognitive impairment, mental illness or a disadvantaged upbringing properly inform the assessment of the objective seriousness of an offence or the degree of an offender’s moral culpability does not arise in the present case. It is, I think, uncontroversial that the motive or intention with which an offence is committed is relevant to the assessment of objective seriousness, whether or not it is an element of the offence. Motive is not an element of the offence of murder but it is uncontroversial that, for example, a finding that a murder was motivated by “revenge or self-interest or both” (see Marsh v R [2015] NSWCCA 154 at [198] (Harrison J, Simpson JA and Adamson J agreeing at [1] and [203])) or the desire to profit from drug trafficking (see R v Rogerson; R v McNamara (No 57) [2016] NSWSC 1207 at [176] (Bellew J)) would be relevant to the assessment of the objective seriousness of that crime.

56. That is the potential relevance of radicalisation at the time of offending in the present case. The proposition was neatly explained by Adamson J in R v Alqudsi [2016] NSWSC 1227 (a case involving charges under the old legislation of performing services for people intending to enter Syria to engage in armed hostilities) at [83]:

“In assessing the relative seriousness of an offence under s 7 of the Act, the nature and extent of the services performed, the intention with which they were performed and their intended effect are all significant factors.”

57. Those remarks were also endorsed by Hamill J in R v Taleb (No 5) at [105].

58. In the present case, the extent of the applicant’s commitment to extreme religious ideology was a factual question raised by the applicant’s submissions to the sentencing judge concerning the objective seriousness of the offence. The applicant submitted:

“The offender’s attitude to crossing the border became, to say the least, ambiguous. He equivocated. He did not show the same commitment to IS as shown by EB…The offender showed hostility towards IS and saw them as kuffars...Islamic State disowned the offender. He was evicted from the makar.”

59. The submission was a bold one. It is true that the evidence included exchanges with EB on 19 June 2016 (a day or two before the applicant’s arrest) in which the offender expressed his disillusionment with the commander of the safe house over a principle termed “takfeer al athir (declaring as an unbeliever someone who themselves excuses unbelievers)”. At that stage, finding himself with nowhere to stay, a cancelled passport and “carrying all military stuff”, the applicant’s resolve to enter Syria appears to have waivered. He told EB his options were “im gonna knock the amir [the commander of the safe house] or go embassy”. He said the amir in Turkey were all “kuffar (unbelievers)”. His disillusionment was that, if excusing unbelievers on the ground of ignorance was the creed of Islamic State, it was “ridda” (apostasy or rejection of Islam).

60. Davies J did not accept that the objective seriousness of the offence was reduced on that account. His Honour found at [42]:

“[the applicant] was, by June 2016, considerably radicalised and I conclude from the conversations he had with EB that he intended to engage in hostile activity when he entered Syria, given the military equipment that he had managed to acquire.”

61. The finding that the applicant was radicalised properly informed that conclusion. Noting that the applicant’s conduct took place over a two-month period, his Honour continued at [43]:

“…so that any mitigation by reason of the impulsiveness of leaving his family in Dubai and travelling to Turkey is small. It is not without significance that he had the falling out with the people at the IS safe house because, to that time, there was nothing to suggest that he would not have pressed ahead with his intention to enter Syria with them or with their assistance. Even after that time, his intentions were only brought to an end because he was arrested by the Turkish police and put into immigration detention.”

62. The extent to which the applicant had become radicalised during his time in Turkey was plainly relevant to the assessment of the objective seriousness of the offence, particularly in the context of the submissions put on behalf of the applicant. I am not persuaded that his Honour’s assessment of that issue reveals error.

Protection of the community

63. The second limb of the applicant’s argument alleges “error in treating the protection of the community as deserving of particular weight.” The passages of the sentencing judgment relied upon by the applicant to support this ground were [32], [54]-[63] and [72].

64. At [32] of the sentencing judgment, Davies J again said that he had “had regard to” remarks which were made in a case concerned with terrorist offences, being the prosecution of Faheem Khalid Lodhi. The passages to which his Honour referred discussed the significance of deterrence and denunciation. In the sentencing judgment in that case (R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691), Whealy J said at [91]-[92]:

“The need for substantial sentences to reflect the principles of general deterrence are obvious in relation to crimes of this kind. Such crimes are hard to detect; they are likely to be committed by members of our own community and often by persons of prior good character and favourable background. One has only to consider the tragedy of the London bombings in 2005 to recognise this observation as a sad truism. Moreover, terrorism is an increasing evil in our world and a country like Australia, with its very openness and trusting nature, is likely to fall easy prey to the horrors of terrorist activities.

In those circumstances, the obligation of the Court is to denounce terrorism and voice its stern disapproval of activities such as those contemplated by the offender here. It may be argued that the imposition of stern penalties, in the context of firm denunciatory statements, will not in fact deter those whose religious and political ideologies are extreme and fanatical. But a stand must be taken. The community is owed this protection even if the obstinacy and madness of extreme views may mean that the protection is a fragile or uncertain one. In my view, the Courts must speak firmly and with conviction in matters of this kind. This does not of course mean that general sentencing principles are undervalued or that matters favourable to an offender are to be overlooked. It does mean, however, that in offences of this kind, as I have said, the principles of denunciation and deterrence are to play a substantial role. There is also a need to recognise that the imposition of a substantial sentence may have a personal impact as a deterrent on this offender so that upon his release he will, it is cautiously hoped, be unlikely or less likely to re-offend. In addition to general deterrence, the need to deter this man from future offences is a potent factor in the sentencing process.”

65. Davies J also referred to remarks in the appeal decision in that case which noted the statutory indications “that, in contemporary circumstances, the threat of terrorist activity, requires condign punishment”: Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360 at [79] (Spigelman CJ).

66. It is clear that, in referring to those remarks, Davies J kept in mind the distinction between terrorist offences and foreign incursion offences, as demonstrated by concluding words of the paragraph where his Honour indicated that he had had regard to the relevant passages “whilst noting that Lodhi was concerned with doing acts in preparation for the commission of a terrorist act”.

67. Paragraphs [54]-[63] of the judgment set out the evidence as to the offender’s beliefs and the judge’s reasons for not being satisfied that the applicant had changed his views or changed his views “sufficiently enough to make a difference” to the approach to be taken in sentencing him. His Honour set out careful reasons at [58]-[62] for the conclusion that the applicant had not significantly changed his views and that finding is not challenged. His Honour said at [63]-[64]:

“My conclusion that the offender has not shown that he has renounced his extreme views is relevant to three matters. The first is the protection of the community, not a matter listed in s 16A of the Crimes Act but a matter which the Court is certainly entitled to take into account: DPP (Cth) v El Karhani (1990) 51 A Crim R 123 at 130-131. Indeed, it is one of the significant matters to be taken into account in respect of offences of this type: Regina v Lodhi at [91]; Faheem Khalid Lodhi v Regina at [82]-[83], [88] and [274].

The second is remorse, rehabilitation and reoffending. These will be dealt with later. The third is deterrence, particularly specific deterrence.”

68. As already noted, the applicant also relied on the sentencing judgment at [72]. In that paragraph Davies J said that renunciation of extreme ideological views and beliefs “bears directly upon an assessment of the prospects of rehabilitation”. His Honour considered the applicant’s prospects of rehabilitation to be “only fair”, stating:

“whilst I do not consider that he is likely to reoffend by committing an offence of the type for which he is being sentenced, I cannot be sure that he will not reoffend by engaging in the sort of behaviour contemplated by s 119.4(5) of the Criminal Code.”

69. The provision to which his Honour referred, s 119.4(5), creates an offence of “giving or receiving goods and services to promote the commission of [a foreign incursion offence]”.

70. The fact that his Honour described the protection of the community as a significant factor to be taken into account in offences “of this type” does not in itself reveal error. As I have explained, care must always be taken in pronouncing principles said to be of general application to offences of a particular “type” or “kind”. That said, this was a case in which the evidence clearly established that the applicant’s intention or motive throughout his acts preparatory to entering Syria was to fight for Islamic State. Although this is not a point taken up by the Crown at sentence or in this Court, the intercepted “Telegram” messages reveal that, when he was evicted from the safe house, the applicant said his options were to go to the embassy or “knock the amir”. Later in the same conversation he said that the only thing he could do was “try to knock the amir (commander) and take the makar (safe house)”. He said to EM “Im gonna kill him I know what he walks (sic) and when he leaves”.

71. In that factual context, and having rejected the applicant’s contentions that he had waivered in his support for Islamic State and subsequently renounced his extreme ideology, the sentencing judge’s characterisation of the applicant’s offence as one in which protection of the community was a significant matter to be taken into account in respect of “offences of this type” does not reveal error. The weight to be given to that factor was a matter for the sentencing judge in the exercise of his discretion.

Conclusion

72. Although I have concluded that the appeal must fail, the issue raised was nonetheless an important one and not without complexity. A grant of leave to appeal is warranted for that reason. I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

73. GARLING J: I agree with the orders proposed by McCallum JA and with her reasons.

74. WRIGHT J: I have had the advantage of reading the judgment of McCallum JA in draft and agree with her Honour’s reasons as well as the orders proposed.

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Amendments

26 February 2021 - Addition of counsel on coversheet.

Decision last updated: 26 February 2021