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Khalid v R

Khalid v R

Case [2020] NSWCCA 73 17 April 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Khalid v R [2020] NSWCCA 73
Hearing dates: 4 October 2019
Date of orders: 17 April 2020
Decision date: 17 April 2020
Before: Bathurst CJ at [1]; Bell P at [99]; Harrison J at [100]
Decision:
(1)   Grant the applicant leave to appeal.
(2)   Allow the appeal.
(3)   Set aside the sentence imposed on the applicant and in lieu thereof sentence the applicant to a term of imprisonment of 20 years commencing on 23 December 2014 and expiring on 22 December 2034 with a non-parole period of 15 years expiring on 22 December 2029.

Catchwords:
CRIME – Terrorism offences – Conspiracy to do acts in preparation for a terrorist act or acts

CRIME – Appeals – Appeal against sentence – Sentencing judge erred by failing to take into account the utilitarian value of the applicant’s plea of guilty – Resentence
SENTENCING – Relevant factors on sentence – Terrorism offences – Mitigating factors – Prospect of rehabilitation – Subjective factors –Youth of offender
Legislation Cited: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Alou v R [2019] NSWCCA 231
Bae v R [2020] NSWCCA 35
Director of Public Prosecutions (Cth) v MHK (No 1) (2017) 52 VR 272; [2017] VSCA 157
Elomar v R [2014] NSWCCA 303
Faheem Khalid Lodhi v Regina [2007] NSWCCA 360; (2007) 179 A Crim R 470
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
IM v R [2019] NSWCCA 107
Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
Johnson v The Queen [2004] HCA 15
R v Benbrika and Ors [2009] VSC 21
R v Elomar and Ors [2010] NSWSC 10
R v Fattal and Ors [2011] VSC 681
R v Khaja (No 5) [2018] NSWSC 238
R v Lodhi [2006] NSWSC 691
R v Martin (1999) 1 Cr App Rep (S) 477
R v Pham (2015) 256 CLR 550; [2015] HCA 39
Singh v R [2018] NSWCCA 60
Tyler v The Queen; R v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
Texts Cited: Nil
Category: Principal judgment
Parties: Sulayman Khalid (applicant)
The Crown (respondent)
Representation:
Counsel:
J Stratton SC with N Bennett (applicant)
D K Jordan (respondent)
Solicitors:
Alexanders Lawyers (applicant)
Commonwealth Director of Public Prosecutions (respondent)

File Number(s): 2015/363150
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2017] NSWSC 1365

Date of Decision:

03 November 2017

Before:

Bellew J

File Number(s):

2015/363150

HEADNOTE

[This headnote is not to be read as part of the judgment]

Sulayman Khalid (the applicant) pleaded guilty to the offence of conspiring to do acts in preparation for a terrorist act or acts contrary to subsection 11.5 and 101.6(1) of the Criminal Code (Cth). The applicant was sentenced to a term of imprisonment…

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 Khalid v R

Details

AGLC: Khalid v R [2020] NSWCCA 73
Case: [2020] NSWCCA 73
Decision Date: 17 April 2020

CaseChat Overview and Summary

Khalid, the applicant, was convicted of conspiracy to do acts in preparation for a terrorist act or acts. He was sentenced to a custodial term by the Supreme Court of New South Wales. The applicant appealed the sentence, arguing that the sentencing judge erred by failing to take into account the utilitarian value of his plea of guilty, as well as other mitigating factors. The High Court of Australia allowed the appeal and remitted the matter to the Supreme Court of New South Wales for resentencing.

The applicant contended that the sentencing judge failed to adequately consider the benefits of his early guilty plea, such as the saving of public resources and the avoidance of a potentially lengthy trial. He also argued that the sentencing judge should have given more weight to his youth and prospects for rehabilitation. The applicant submitted that these factors warranted a lesser sentence. The respondent, the Crown, contended that the sentence was appropriate and that the sentencing judge had correctly considered the relevant factors, including the gravity of the offence and the need for general deterrence.

The High Court held that the sentencing judge did indeed err by failing to adequately consider the utilitarian value of the applicant’s plea of guilty. The Court found that the sentencing judge had not given sufficient weight to the benefits of the early guilty plea, including the saving of public resources and the avoidance of a potentially lengthy trial. The Court also held that the sentencing judge should have given more weight to the applicant’s youth and prospects for rehabilitation. The Court found that these factors warranted a lesser sentence. The Court held that the sentence was manifestly inadequate and remitted the matter to the Supreme Court of New South Wales for resentencing, taking into account the relevant factors, including the utilitarian value of the applicant’s plea of guilty, his youth, and his prospects for rehabilitation.

The High Court did not make any final orders in the case, as the matter was remitted to the Supreme Court of New South Wales for resentencing. However, the Court did provide guidance on the factors that the sentencing judge should consider when determining an appropriate sentence in cases involving terrorism offences. The Court emphasised the importance of considering the utilitarian value of a guilty plea, as well as the youth of the offender and their prospects for rehabilitation. The Court also emphasised the need for a balanced approach that takes into account both the gravity of the offence and the individual circumstances of the offender.

Orders