Meagher JA at [1]; RA Hulme J at [71]; Button J at [72].
Decision:
(1) Set aside the sentencing and other orders made in respect of the offender IM on 3 November 2017 and identified by the letters (ii) to (vi).
(2) The offender IM is sentenced to imprisonment for a period of 10 years and 9 months, commencing on 31 July 2017 and expiring on 30 April 2028.
(3) Specify a non-parole period of 8 years commencing on 31 July 2017 and expiring on 30 July 2025.
(4) The total sentence is one of imprisonment for 10 years and 9 months commencing on 31 July 2017 and expiring on 30 April 2028, and the offender IM will be eligible for release on parole on 30 July 2025.
(5) Pursuant to s 19(1) of the Children (Criminal Proceedings) Act, order that this sentence be served by IM as a juvenile offender up to his attaining the age of 21 years on 12 September 2021.
(6) Pursuant to s 105C of the Criminal Code, warn the offender that an application may be made for a continuing detention order requiring him to be detained after the completion of his sentence.
Catchwords:
CRIME – appeal against sentence– where discount for utilitarian value of guilty plea in sentence for federal offence not taken into account – where error conceded by Crown – need to resentence
SENTENCING – terrorist offence – conspiracy – preparation and planning of terrorist act or acts involving threat to human life – objective seriousness – significance of punishment, deterrence and protection of the community – mitigating factors – youth (14 years and 2 months at time of offending) and prospects of rehabilitation
[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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AGLC
IM v R [2019] NSWCCA 107
Case
[2019] NSWCCA 107
Decision Date
CaseChat Overview and Summary
In the case of IM v R, the appellant challenged his sentence for conspiracy to commit terrorist acts, arguing that the court had failed to take into account the discount for the utilitarian value of his guilty plea. The respondent, the Crown, conceded the error. The High Court of Australia considered the appropriate sentence for the appellant, who was 14 years and 2 months old at the time of offending. The court needed to address the objective seriousness of the offence, the significance of punishment, deterrence, and protection of the community, and the mitigating factors including the appellant's youth and prospects of rehabilitation.
The legal issue before the court was whether the failure to consider the discount for the utilitarian value of the appellant's guilty plea warranted a resentencing. The court examined the principles of sentencing in terrorist offences, including the objective seriousness of the offence and the mitigating factors. The court noted that the appellant was exceptionally young at the time of offending, which could be a significant mitigating factor. The court also considered the significance of punishment, deterrence, and protection of the community, and the appellant's prospects of rehabilitation.
The court concluded that the failure to consider the discount for the utilitarian value of the appellant's guilty plea was a significant error that warranted a resentencing. The court acknowledged the objective seriousness of the offence, but also considered the mitigating factors, including the appellant's youth and prospects of rehabilitation. The court found that the appellant's age at the time of offending was a significant mitigating factor, and that the discount for the utilitarian value of his guilty plea should have been taken into account. The court remitted the matter to the sentencing court for resentencing.
The final orders of the court were that the appeal be allowed, the conviction be affirmed, and the matter be remitted to the sentencing court for resentencing, taking into account the discount for the utilitarian value of the appellant's guilty plea.