Im v The Queen

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant sought to appeal against a decision of the Court of Criminal Appeal, which had dismissed his appeal against a sentence imposed upon him. The applicant's legal team sought an extension of time to file the application, which was consented to by the respondent and granted by the Court. Two of the three grounds for special leave were new points not raised in the courts below, and the applicant conceded that he had acquiesced in how these matters were dealt with previously. To succeed, the applicant needed to demonstrate that these new points raised exceptional circumstances justifying special leave, pointing to his youth, the severity of his sentence, and the fact that the new grounds raised pure questions of law with no forensic disadvantage to the Crown.

The primary legal issue before the High Court concerned the interpretation and operation of s 20C of the *Crimes Act 1914* (Cth) in the context of sentencing a federal offender for a terrorism offence. Specifically, the applicant argued that s 20C, a deeming provision, operated to transform a federal offender into a State offender for the purposes of punishment when its discretion was exercised. This, it was contended, would mean that provisions of the *Crimes Act* (Cth) that applied only to federal offenders, such as s 19AG concerning non-parole periods for terrorism offences, would not apply. The applicant argued that this interpretation would have resulted in a less onerous non-parole period under New South Wales law, thereby mitigating the severity of his sentence. The respondent, conversely, submitted that s 20C was merely an enabling provision allowing a sentencing court to apply sentencing options available under State or Territory law, but that the offender remained a federal offender subject to federal sentencing provisions, including s 19AG.

The applicant's counsel contended that the words "as if" in s 20C created a counterfactual state of affairs where the offender was treated as a State offender being sentenced for a State offence, thereby excluding the operation of federal provisions like s 19AG. This, it was argued, would mean the 75 per cent non-parole period under s 19AG(2) would not apply, and instead, the relevant New South Wales provisions, which allowed for a two-thirds non-parole period and consideration of special circumstances due to youth, would apply. The respondent argued that s 20C was a general provision and that s 19AG was a specific provision dealing with terrorism offences, which, by its terms and in context, applied exclusively to federal sentences of imprisonment. The respondent maintained that the offender remained a federal offender sentenced for a federal offence, and that s 20C's role was to permit the consideration of State sentencing options as alternatives to imprisonment, not to alter the fundamental nature of the sentence or the applicability of specific federal sentencing requirements like non-parole periods for terrorism offences.

The Court granted special leave to appeal on ground 2, which concerned the interpretation of s 20C of the *Crimes Act 1914* (Cth) and its interaction with s 19AG of the same Act. The Court indicated that it would hear submissions on this ground.