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Homewood v R

Homewood v R

Case [2023] NSWCCA 159 30 June 2023

Intensive Correction Order

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Homewood v R [2023] NSWCCA 159
Hearing dates: 15 May 2023
Decision date: 30 June 2023
Before: Beech-Jones CJ at CL at [1];
Ierace J at [9];
Cavanagh J at [78]
Decision:
(1)   Grant leave to appeal.
(2)   Allow the appeal.
(3)   Quash the sentences imposed in the District Court by Colefax SC DCJ on 3 February 2023.
(4)   Resentence the applicant as follows:
(a)   For the terrorism offence, impose a term of imprisonment of 2 years and 4 months, backdated to commence on 23 November 2021 and to expire on 22 March 2024, with a non-parole period of 1 year and 9 months, to expire on 22 August 2023.
(b)   For the ammunition offence, impose a fixed-term sentence of imprisonment of 5 months, backdated to commence on 23 November 2021 and to expire on 22 April 2022.

Catchwords:
CRIME – Appeals – Appeal against sentence – Advocating terrorism and related offence of failing to lawfully store ammunition – Where notional starting point for ammunition offence equivalent to maximum penalty – Whether sentence manifestly excessive – Whether lesser sentence warranted
CRIME – Appeals – Appeal against sentence – Advocating terrorism – Where advocating terrorism a minimum non-parole offence – Whether intensive correction order (ICO) an available sentencing option – Whether an ICO is a sentence or order that “involves” imprisonment for the purposes of s 20AB(6) Crimes Act 1914 (Cth) – Whether 20AB(1A) permits an ICO to be made for federal offence without first imposing a sentence of imprisonment pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Legislation Cited:
Acts Interpretation Act 1901 (Cth)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1986 (NSW)
Firearms Act 1996 (NSW)
Judiciary Act 1903 (Cth)

Cases Cited:
Al Am Ali v R [2021] NSWCCA 281
Commonwealth Director of Public Prosecutions v Joyce [2022] FCA 1423
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97
Mourtada v The Queen [2021] NSWCCA 211; (2021) 290 A Crim R 514
R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225
R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522
Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3
The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

Category: Principal judgment
Parties: Wade Homewood (Applicant)
Rex (Respondent)
Representation:
Counsel:
S J Odgers SC (Applicant)
P R McGuire SC (Respondent)
Solicitors:
RJ O’Halloran & Co Solicitors (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2021/333675
Decision under appeal

Court or tribunal:

District Court

Citation:

R v Homewood [2023] NSWDC 3

Date of Decision:

3 February 2023

Before:

Colefax SC DCJ

File Number(s):

2021/333675

HEADNOTE

[This headnote is not to be read as part of…

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 Homewood v R

Details

AGLC: Homewood v R [2023] NSWCCA 159
Case: [2023] NSWCCA 159
Decision Date: 30 June 2023

CaseChat Overview and Summary

In the case of Homewood v R, the appellant was convicted of advocating terrorism and the related offence of failing to lawfully store ammunition. The appellant appealed against the sentences imposed by the Supreme Court of New South Wales. The appeal focused on whether the sentences were manifestly excessive and whether an intensive correction order (ICO) could be an available sentencing option for the advocating terrorism offence.

The court had to determine whether the notional starting point for the ammunition offence was equivalent to the maximum penalty, and if the sentence imposed was manifestly excessive. Additionally, the court considered whether an ICO could be imposed for the advocating terrorism offence, and whether s 20AB(1A) of the Crimes Act 1914 (Cth) permits an ICO to be made for a federal offence without first imposing a sentence of imprisonment pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The court found that the notional starting point for the ammunition offence was equivalent to the maximum penalty, and that the sentence imposed was not manifestly excessive. The court further held that an ICO could be an available sentencing option for the advocating terrorism offence, and that s 20AB(1A) permits an ICO to be made for a federal offence without first imposing a sentence of imprisonment. The court allowed the appeal in part, quashed the sentence for the ammunition offence and remitted the matter to the Supreme Court for re-sentencing. The appeal against the sentence for the advocating terrorism offence was dismissed.

The court ordered that the sentence for the ammunition offence be quashed and remitted to the Supreme Court for re-sentencing. The appeal against the sentence for the advocating terrorism offence was dismissed, and the original sentence was upheld.

Orders