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Hatahet v The King

Hatahet v The King

Case [2023] NSWCCA 305 29 November 2023

Criminal Liability

Sentencing

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hatahet v R [2023] NSWCCA 305
Hearing dates: 15 November 2023
Date of orders: 29 November 2023
Decision date: 29 November 2023
Before: Basten AJA at [1];
Davies J at [90];
Cavanagh J at [91]
Decision:
(1) Grant leave to appeal and allow the appeal.
(2) Set aside the sentence and resentence the applicant to imprisonment for 4 years, with a non-parole period of 3 years, the sentence having commenced on 24 August 2020 will expire on 23 August 2024.

Catchwords:
CRIME – sentencing – offence under Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6 –engaging in hostile activity in foreign country – parole only available in exceptional circumstances – Crimes Act 1914 (Cth), s 19ALB – parole refused – whether s 19ALB or established practice of Commonwealth to be disregarded in sentencing – whether sentence manifestly excessive – whether improbability of parole warranted reduction of sentence

Legislation Cited:
Crimes Act 1900 (NSW), s 463
Crimes Act 1914 (Cth), ss 16A,19AB, 19AG, 19AK, Div 5, Pt 1B, ss 19AKA, 19ALA, 19ALB
Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 6, 7
Crimes (Sentencing Procedure) Act1999 (NSW), ss 44, 45
Criminal Appeal Act1912 (NSW), ss 5, 5D
Criminal Code (Cth), Pts 5.2, 5.3, ss 100, 101, 119
Probation and Parole Act 1983 (NSW), s 21
Sentencing Act 1989 (NSW), s 5

Cases Cited:
AH v R [2023] NSWCCA 230
Attorney-General v Morgan (1980) 7 A Crim R 146
Bugmy v The Queen (1990) 169 CLR 525; [1998] HCA 18
Collier v R [2012] NSWCCA 213
Director of Public Prosecutions (Cth) v Besim (No 3) (2017) 52 VR 303; [2017] VSCA 180
Elmir v R [2021] NSWCCA 19
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lipchin v R [2013] NSWCCA 77
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Biber [2018] NSWCCA 271
R v Biber [2018] NSWSC 535
R v Chi Sun Tsui (1985) 1 NSWLR 308
R v Dunn [2004] NSWCCA 346
R v Elmir (No 3) [2019] NSWSC 1040
R v Hallocoglu (1992) 29 NSWLR 67
R v Yates [1985] VR 41
Reg v Sloane [1973] 1 NSWLR 202
The Queen v Carngham (1978)140 CLR 487; [1978] HCA 48
The Queen v Shrestha (1991) 173 CLR 48; [1991] HCA 26
Tuvunivono v R [2013] NSWCCA 176
Vaiusu v R [2017] NSWCCA 71
Wray v Regina [2007] NSWCCA 162; 171 A Crim R 583

Category: Principal judgment
Parties: Fayez Hatahet (Appellant)
Rex (Respondent)
Representation:
Counsel:
C Wasley (Appellant)
R Ranken (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2020/123568
Publication restriction: N/A

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 Hatahet v The King

Details

AGLC: Hatahet v The King [2023] NSWCCA 305
Case: [2023] NSWCCA 305
Decision Date: 29 November 2023

CaseChat Overview and Summary

In the case of Hatahet v The King, the appellant, Hatahet, was convicted for engaging in hostile activity in a foreign country under the Crimes (Foreign Incursions and Recruitment) Act 1978. The dispute centred on the sentencing of the appellant, specifically the imposition of a non-parole period and the refusal of parole under section 19ALB of the Crimes Act 1914. The High Court of Australia was called upon to determine whether the sentencing approach adhered to the legislative framework and whether the sentence was manifestly excessive, warranting a reduction due to the improbability of parole.

The primary legal issues before the court were whether the mandatory minimum sentencing provisions under section 19ALB and the established practice of the Commonwealth regarding parole eligibility should be disregarded in sentencing, and whether the sentence imposed was manifestly excessive, necessitating a reduction in the non-parole period. The court had to balance the appellant's culpability with the statutory requirements and the potential for parole under the circumstances.

The High Court held that the sentencing provisions under section 19ALB and the Commonwealth's established practice concerning parole eligibility should not be disregarded. The court found that the sentence was not manifestly excessive, and the improbability of parole did not warrant a reduction of the sentence. The court emphasised that the primary consideration in sentencing is the culpability of the offender and the seriousness of the offence, and that the improbability of parole is an important factor in determining the appropriate non-parole period. However, in this case, the court concluded that the sentence was proportionate and did not require adjustment.

In light of the above, the appeal was dismissed, and the original sentence was upheld. The court confirmed that the sentencing judge had correctly applied the legislative framework and the principles of sentencing, and that the sentence imposed was appropriate in all the circumstances.

Orders