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Ghazzawy v R (Cth)

Ghazzawy v R (Cth)

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Case Copied 16 April 2021 33 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ghazzawy v R (Cth) [2021] NSWCCA 70
Hearing dates: 26 October 2020
Decision date: 16 April 2021
Before: Hoeben CJ at CL at [1];
Harrison J at [56];
Ierace J at [57]
Decision:
(1)   Grant leave to the applicant to appeal against his sentence out of time.
(2)   Grant leave to appeal against sentence.
(3)   Allow the appeal.
(4)   Quash the sentence imposed by his Honour Justice Bellew on 8 May 2017.
(5)   In lieu thereof, the applicant is sentenced to imprisonment for 8 years, commencing 10 December 2015 and expiring 9 December 2023, with a non-parole period of 6 years expiring on 9 December 2021.

Catchwords:
CRIMINAL LAW – sentence appeal – offence of intentionally making a document connected with the preparation for a terrorist act knowing of that connection contrary to s 101.5(1) of the Criminal Code 1995 (Cth) – failure to have regard to the utilitarian value of the plea of guilty in accordance with s 16A(2)(g) of the Crimes Act 1914 (Cth) – error disclosed and need to resentence – protection of the community, punishment, denunciation of the offending and general deterrence relevant to objective seriousness – objective gravity higher than mid-range – lack of insight into offending – appeal against sentence allowed – term of imprisonment reduced on resentence.

Legislation Cited:
Crimes Act 1914 (Cth) – s16A
Criminal Appeal Act 1912 (NSW) – s5
Criminal Code (Cth) – ss 101.5, 101.6

Cases Cited:
Bae v R [2020] NSWCCA 35
Benbrika v R (2010) 29 VR 593; [2010] VSCA 281
Elomar & Ors v R (2014) 300 FLR 323; [2014] NSWCCA 303
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mulato v Regina [2006] NSWCCA 282
R v Benbrika (2009) 222 FLR 433; [2009] VSC 21
R v Elomar&Ors (2010) 264 ALR 759; [2010] NSWSC 10
R v Ghazzawy [2017] NSWSC 474
R v Kahar & Ors [2016] 1 WLR 3156; [2016] EWCA Crim 568
R v Khazaal [2009] NSWSC 1015
R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
R v Robert Borkowski [2009] NSWCCA 102
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category: Principal judgment
Parties: Ibrahim Ghazzawy – Applicant
Regina (Cth) – Respondent
Representation:
Counsel:
T Anderson/K Fitzgerald – Applicant
B Power – Respondent
Solicitors:
Legal Aid NSW – Applicant
Commonwealth Director of Public Prosecutions - Respondent

File Number(s): 2015/363057
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2017] NSWSC 474

Date of Decision:

8 May 2017

Before:

Bellew J

File Number(s):

2015/363057

JUDGMENT

HOEBEN CJ at CL:

Offence and sentence

On 27 October 2016, Ibrahim Ghazzawy (the applicant) pleaded guilty to an offence contrary to s 101.5(1) of the Criminal Code 1995 (Cth) (the Code) in the following terms:

Between about 17 December 2014…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] NSWCCA 70
Decision Date: 16 April 2021

CaseChat Overview and Summary

The case of Ghazzawy v R (Cth) involved the appellant, who was convicted for making a document connected with the preparation for a terrorist act, in violation of section 101.5(1) of the Criminal Code 1995. The primary issue before the court was whether the original sentencing decision adequately considered the utilitarian value of the appellant's guilty plea, as required by section 16A(2)(g) of the Crimes Act 1914. The court had to determine if the error identified warranted a re-sentencing process.

The court emphasised that the original sentencing process had failed to properly evaluate the utilitarian benefits of the appellant's plea. These benefits include the protection of the community, punishment, denunciation of the offending, and general deterrence. The court found that the objective seriousness of the offence was higher than the mid-range, and noted the appellant's lack of insight into the gravity of the offence. Given these considerations, the court concluded that the error in the original sentencing warranted a re-sentencing. Upon re-sentencing, the court reduced the term of imprisonment imposed on the appellant.

The court’s decision underscored the importance of the sentencing judge acknowledging the utilitarian value of a guilty plea, and the need to ensure that such considerations are appropriately factored into the sentencing process. The court’s re-sentencing aimed to address the identified error while still reflecting the objective seriousness of the offence and the broader objectives of sentencing.

Orders