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Elmir v R

Elmir v R

Case [2021] NSWCCA 19 26 February 2021

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Elmir v R

Details

AGLC: Elmir v R [2021] NSWCCA 19
Case: [2021] NSWCCA 19
Decision Date: 26 February 2021

CaseChat Overview and Summary

In the matter of Elmir v R, the applicant pleaded guilty to a foreign incursion offence, contrary to Part 5.5 of the Commonwealth Criminal Code. The sentencing judge took into account principles developed in relation to terrorism offences under Part 5.3 of the Criminal Code, leading to a question of whether this approach was legally appropriate. The crux of the issue was whether the sentencing judge should have referenced principles applicable to terrorism offences or those specific to foreign incursion offences, particularly in light of the overarching principle established in Markarian. Additionally, the court considered whether the extent of the applicant’s radicalisation at the time of offending was legally irrelevant to foreign incursion offences. Furthermore, the court examined whether the sentencing judge erred by considering statements made in terrorist cases concerning the weight given to community protection when sentencing for a foreign incursion offence.

The court examined the distinction between terrorism and foreign incursion offences, acknowledging that each category may warrant unique sentencing considerations. However, the overarching principle from Markarian suggests a unified approach to sentencing that transcends specific offence categories, unless there are compelling reasons to treat them differently. The court also delved into the relevance of the applicant’s radicalisation, exploring whether this factor should influence sentencing for foreign incursion offences. The court recognised the importance of community protection in sentencing but questioned whether principles from terrorism cases were applicable to foreign incursion offences.

In its reasoning, the court concluded that while there may be discrete principles applicable to certain types of offences, the overarching principle from Markarian demands a consistent approach to sentencing unless there are clear distinctions justifying separate treatment. The court determined that the sentencing judge had erred by applying principles from terrorism cases to the foreign incursion offence. The court found that the extent of the applicant’s radicalisation was not legally irrelevant but needed to be contextualised within the specific principles applicable to foreign incursion offences. Consequently, the sentencing judge’s reliance on terrorism case principles was deemed inappropriate, leading to a reassessment of the sentence.

The court ordered a re-sentencing of the applicant, directing that the sentencing principles specifically applicable to foreign incursion offences be properly considered. This included a proper evaluation of the extent of radicalisation in the context of these offences. The court emphasised the importance of adhering to the sentencing principles relevant to the specific type of offence, ensuring that the sentence reflected the unique characteristics of foreign incursion offences. The outcome underscored the necessity of a careful and principled approach to sentencing, tailored to the specific legal framework governing the offence in question.

Orders