Mohamed v The King [No 2]

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0031
S EAPCR 2021 0032

AHMED MOHAMED	Applicant
v
THE KING [NO 2]	Respondent

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JUDGES:	EMERTON P, NIALL AND T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2023 and 20 July 2023
DATE OF JUDGMENT:	3 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 177
JUDGMENT APPEALED FROM:	[2019] VSC 498 (Tinney J)

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CRIMINAL LAW – Appeal – Arson and terrorism offences – Two sentences – Second sentence partially cumulated upon first sentence – Applicant appealed against both sentences – Appeal against first sentence abandoned at hearing – Decision of Court of Appeal reserved – Judgment delivered in Totaan v The Queen requiring family hardship to be considered – Applicant seeks to re-instate abandoned appeal against first sentence – Judgment delivered by Court of Appeal allowing appeal and adjusting cumulation on second sentence – Applicant’s appeal against first sentence now considered – Whether sentencing judge in first sentence erred in failing to consider family hardship as required by Totaanv The Queen – Sentencing error established – No reasonable prospect of Court reducing total effective sentence despite sentencing error – Leave to appeal refused.

Totaan v The Queen (2022) 108 NSWLR 17 referred to.

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Counsel
Applicant:		Mr DA Dann KC with Mr PJ Smallwood
Respondent:		Ms K Breckweg
Solicitors
Applicant:	Lawyers Corp Pty Ltd
Respondent:	Mr M de Crespigny, Acting Solicitor for Public Prosecutions (Cth)

EMERTON P
NIALL JA
T FORREST JA:

Introduction

The applicant has applied for leave to appeal against a sentence imposed by Tinney J, in the Supreme Court at Melbourne, pursuant to section 278 of the Criminal Procedure Act 2009 (‘the CPA’).
We have determined that, although the applicant has established sentencing error (albeit through no fault of the judge), there is no reasonable prospect that the Court would reduce the total effective sentence despite this sentencing error.[1] What follows are our reasons for refusing this application.
[1]See section 280(1)(b) of the CPA.

Background

Starting from late October 2016, the applicant and three co-offenders (Abdullah Chaarani, Hamza Abbas and Ibrahim Abbas) engaged in a number of preparatory acts towards committing a terrorist attack. These acts included:
(a)purchasing chemical, explosive substances and mechanical and electrical components for use in the manufacture of improvised explosive devices (‘IEDs’);
(b)taking steps towards manufacturing and testing IEDs;
(c)purchasing bladed weapons;
(d)taking steps to gain access to firearms; and
(e)conducting reconnaissance of potential target areas of Federation Square, Flinders Street Train Station and Saint Paul’s Cathedral.[2]
We shall refer to this as the Federation Square offence.
[2]R v Abbas [2019] VSC 775, [1]–[6] (‘Reasons for Second Sentence’).
On 25 November 2016, the applicant and Chaarani set fire to a Shia mosque.[3] The fires that they lit self-extinguished, causing very limited damage to the mosque. On 11 December 2016, the applicant, Chaarani and another co-offender, Hatim Moukhaiber, set fire to the mosque again, leading to its substantial destruction by fire.[4] The purpose of these actions was to cause terror to Shia Muslims.[5] We shall refer to these offences as the arson offences.
[3]R v Mohamed [2019] VSC 498, [2]–[3] (‘Reasons for First Sentence’).
[4]Ibid [3].
[5]Ibid [1].
On 22 December 2016, the police arrested the applicant in relation to the Federation Square offence.[6] The applicant has been imprisoned since then.[7]
[6]Reasons for Second Sentence, [2].
[7]See Reasons for Second Sentence, [177].
On 20 August 2017, the applicant was charged in relation to the arson offences.[8] Between 22 December 2016 and 20 August 2017, the applicant spent 241 days in custody.
[8]Reasons for First Sentence, [107].
On 2 November 2018, a jury found the applicant guilty of conspiring to do an act or acts in preparation for or planning a terrorist attack.[9] This was the Federation Square offence. Sentencing was deferred pending the outcome of a second trial for the arson offences.
[9]Reasons for Second Sentence, [1].
On 9 May 2019, the jury in the second trial (for the arson offences) found the applicant guilty of:
(a)one charge of attempting to engage in a terrorist attack, and
(b)one charge of engaging in a terrorist attack.
On 24 July 2019, Tinney J sentenced the applicant for the arson offences. The judge imposed a sentence of 18 years imprisonment on the engaging in a terrorist act offence and 8 years on the attempt to engage offence. Four years of this latter sentence was made cumulative on the completed offence. The total effective sentence for the arson offences was thus 22 years. A non-parole period of 17 years was set and 703 days of pre-sentence detention was declared.[10]
[10]Reasons for First Sentence [209]–[214].
In his sentencing reasons, Tinney J stated that the applicant’s crimes, ‘whilst clearly very serious, were in the mid-range of the seriousness of such offences’.[11] He stated the following with respect to the impact of incarceration on the applicant and the applicant’s family:
Some further written material recently provided to the Court touches on some aspects of … the very great dislocation, trauma and sadness caused to you and your family since your incarceration. In particular, the fact that your son was born after your incarceration and your realisation that you will not be present for his formative years are matters of great sadness to you.[12]
[11]Ibid [202].
[12]Ibid [153].
Counsel for the applicant at the time did not contend at the plea hearing for the arson offences that any hardship his incarceration caused or would cause his family was exceptional.
On 29 November 2019, Beale J sentenced the applicant to 26 years’ imprisonment for the Federation Square offence. His Honour:
(a)directed that 16 years of the applicant’s sentence be cumulative on the first sentence; hence, this sentence was to commence on 19 August 2029;
(b)fixed a new non-parole period of 28 years and 6 months’ imprisonment, commencing 22 December 2016;
(c)declared that the applicant had served 241 days by way of pre-sentence detention, to be reckoned as served in respect of the head sentence only; and
(d)declared that no pre-sentence detention was reckoned as served for the new non-parole period.
We shall refer to the sentence for the arson offences as the ‘first sentence’ and the sentence for the Federation Square offence as the ‘second sentence’.
The applicant filed notices of applications for leave to appeal both sentences and for extensions of time in which to file those notices. On 1 April 2022, this Court heard applications for leave to appeal both the first and the second sentences. However, at the outset of oral argument, the applicant sought leave to abandon his application for leave to appeal the first sentence. This Court granted the leave sought. In oral argument, it became clear that the applicant sought only to challenge Beale J’s order for cumulation. At the conclusion of oral argument on that day, this Court reserved its decision. We refer to this as ‘the first appeal’.
Ten days later on 11 April 2022, the New South Wales Court of Criminal Appeal handed down judgment in Totaanv The Queen.[13] Prior to Totaan, the common understanding was that s 16A(2)(p) of the Crimes Act 1914 (Cth) (‘Crimes Act’) — which requires courts to take into account ‘the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants’ — only applied in cases of ‘exceptional hardship’.[14] In Totaan, the New South Wales Court of Criminal Appeal held that this approach was plainly wrong and should not be followed. Bell CJ (with whom the other members of the Court agreed) pointed out that there was ‘simply no textual support’ in s 16A(2)(p) for the ‘exceptional circumstances’ qualification.[15]
[13](2022) 108 NSWLR 17; [2022] NSWCCA 75 (‘Totaan').
[14]Ibid 20 [2]–[3] (Bell CJ); Mohamed v The Queen [2022] VSCA 136 (‘VSCA Reasons’) [83] (Maxwell P, Emerton and Sifris JJA) .
[15]Totaan (2022) 108 NSWLR 17, 36 [78] (Bell CJ), 50 [148] (Gleeson JA agreeing), [149] (Harrison J agreeing), [150] (Adamson J agreeing), [151] (Dhanji J agreeing).
On 3 May 2022 and 30 June 2022, with the judgment in the first appeal remaining reserved, the applicant filed written submissions in which he sought leave to add an additional ground of appeal to both applications for leave to appeal. The proposed ground of appeal was in the following terms:
The sentencing discretion has miscarried in circumstances where the proceeding was conducted on the basis that family hardship could not be taken into account absent the demonstration of exceptional circumstances.
On 13 July 2022, this Court handed down judgment in the first appeal only. It granted leave to appeal the second sentence, allowed the appeal against the second sentence, set aside Beale J’s order for cumulation and, in its place, ordered that 10 years of the second sentence be served cumulatively on the first sentence.[16] In doing so, it acted on a concession by the Commonwealth Director of Public Prosecutions that Beale J was unwittingly in error in that he had failed to take into account a relevant consideration — namely the hardship that the applicant’s family would experience following his imprisonment.[17] The Court stated:
In the particular circumstances of this case, family hardship is an issue of minor significance. It is striking that there was no reference at all in the defence plea submission to the impact of his incarceration on his family. Attached to the submission was a statement from the applicant which made reference to family members, and to his son, but the references appeared under the following headings: ‘What I have suffered since my imprisonment’ and ‘What I will probably suffer during my incarceration’.
There was nothing in the material to suggest that the applicant’s son, who lives with and is cared for by his ex-wife, would suffer any particular hardship, beyond the obvious distress of being separated from his father for many years. We recognise, of course, that in preparing the plea submissions the applicant’s representatives would have been conscious of the constraints of the ‘exceptional circumstances’ test, as then understood to be applicable. It can safely be assumed, however, that if there were any matters of a compelling kind falling into that category, they would have been drawn to the judge’s attention.
That assumption appears to be borne out by the affidavit material filed in response to the Court’s recent invitation. The applicant’s representatives have filed two affidavits, one from his ex-wife (‘S’) and the other from his mother (‘M’). In her affidavit, S confirms that she divorced the applicant when their son was 6 months old. She had been visiting the applicant in custody, bringing her son, but found it ‘an extremely daunting experience’.
Ultimately, S decided that it was necessary for her to divorce the applicant ‘because I found it so difficult visiting him in prison so often’. Subsequently, she says, she was involved in a car accident, in which she sustained injuries to her hand, and her mental health deteriorated. On one occasion, she attempted suicide. She and the applicant ‘have recently started talking again’ and ‘we are trying to mend our relationship’. Since reconnecting with him, she has been ‘feeling much better’. The affidavit makes no mention of any adverse impact on their son.
In her affidavit, M states that she and her mother (the applicant’s grandmother) both caught COVID-19 in October 2021. Her mother died in hospital and, since returning home, M has had no assistance from anyone and has had to manage on her own. Her mental health has been declining but she has been doing her best to help S look after the grandson. She describes herself as ‘extremely lonely and sad’ and says that the applicant and his son are ‘the only things I have left in this world’.
Impacts of this kind on an offender’s family are the inevitable corollary of the offender’s having been found guilty of a serious crime and sentenced to a term of imprisonment. Sometimes, of course, the implications of incarceration for family members are so significant that they must weigh heavily in the sentencing calculus. But, as this affidavit material reveals, the present case is not in that category.
[I]n arriving at our resentencing decision, we have taken into account — consistently with the Director’s concession — all of the matters placed before this Court in relation to the implications for the applicant’s family.[18]
[16]VSCA Reasons [101] (Maxwell P, Emerton and Sifris JJA).
[17]Ibid [92]–[93] (Maxwell P, Emerton and Sifris JJA).
[18]Ibid [94]–[100] (Maxwell P, Emerton and Sifris JJA).
The Court did not directly consider the impact of ‘non-exceptional family hardship’ on the first sentence, presumably because the applicant had sought and received leave to abandon the application for leave to appeal that sentence.
The respondent advised the Court that the applicant had spent 2,029 days in pre-sentence detention (from 22 December 2016 until 13 July 2022). Accordingly, this Court made the following orders:
1. The application for an extension of time is granted.
2. Leave to appeal is granted and the appeal allowed.
3.The orders made by Beale J on 29 November 2019 are varied by setting aside the order for cumulation, the commencement date of the sentence and the non-parole period and in their place ordering as follows:
a)ten (10) years of the sentence on charge 1 be served cumulatively on the sentence imposed by Tinney J on 24 July 2019 ([2019] VSC 498);
b)the commencement date of the sentence is 19 August 2023;
c)the new non-parole period is 24 years, commencing on 22 December 2016, giving a total effective sentence of 32 years with a non-parole period of 24 years.
4.It is declared that the period of 2029 days, not including this day, be reckoned as already having been served under this sentence.
As the applicant’s appeal against the first sentence lay apparently abandoned at the time, this Court’s judgment and orders of 13 July 2022 did not affect the first sentence.

This appeal

Leave to revive the application for leave to appeal against the first sentence was granted on 1 March 2023.
It is conceded by the respondent that Tinney J, whose sentence was passed 10 days before Totaan was handed down, did not take into account family hardship and that that, in light of Totaan, was an error. In those circumstances the applicant contends that the sentencing discretion in relation to the first sentence should be reopened, and the sentence reduced to reflect the hardship to the applicant’s mother, now deceased grandmother, ex-wife (‘S’) and young son. This, it is said, is particularly so given the dislocation and trauma, characterised by the judge as ‘very great’, that the applicant’s imprisonment has caused.
As evidence of this hardship, the applicant filed two affidavits, one from S and one from M. These affidavits were also before this Court when it set aside Beale J’s order for cumulation. In its 13 July 2022 reasons, this Court summarised those affidavits as follows:
…In her affidavit, S confirms that she divorced the applicant when their son was 6 months old. She had been visiting the applicant in custody, bringing her son, but found it ‘an extremely daunting experience’.
Ultimately, S decided that it was necessary for her to divorce the applicant ‘because I found it so difficult visiting him in prison so often’. Subsequently, she says, she was involved in a car accident, in which she sustained injuries to her hand, and her mental health deteriorated. On one occasion, she attempted suicide. She and the applicant ‘have recently started talking again’ and ‘we are trying to mend our relationship’. Since reconnecting with him, she has been ‘feeling much better’. The affidavit makes no mention of any adverse impact on their son.
In her affidavit, M states that she and her mother (the applicant’s grandmother) both caught COVID-19 in October 2021. Her mother died in hospital and, since returning home, M has had no assistance from anyone and has had to manage on her own. Her mental health has been declining but she has been doing her best to help S look after the grandson. She describes herself as ‘extremely lonely and sad’ and says that the applicant and his son are ‘the only things I have left in this world’.[19]
[19]VSCA Reasons, [96]–[98] (Maxwell P, Emerton and Sifris JJA).
Should this Court reach the resentencing phase, the applicant sought leave to file and rely on further affidavit material that demonstrated:
•That the applicant has made further progress towards deradicalisation, including good behaviour whilst in custody.
•That the family hardship has been compounded by the applicant’s ex-wife apparently abandoning her young child to his grandmother, and descending into drug abuse. The grandmother now has custody of and is trying to raise the applicant’s son and another child of the applicant’s ex-wife. She has limited means and significant health problems.
•Certain restrictions in custodial life caused by the COVID-19 pandemic.
The applicant relied upon Beale J’s sentencing remarks that he accepted, on balance, that the applicant ‘[was] genuinely on the path of de-radicalisation’[20] and contended that, if this Court were to resentence, we could rely on those observations augmented by the further affidavit material.
[20]Reasons for Second Sentence, [171].
As we have said, the respondent concedes that Tinney J’s failure to take into account the hardship that would be suffered by the applicant’s family was erroneous. The respondent submits however that this Court should nonetheless refuse leave to appeal because there is no reasonable prospect that it would reduce the sentence of 22 years’ imprisonment first imposed by Tinney J or the total effective sentence imposed by the Court of Appeal.[21] Further, if leave to appeal were granted, this Court should dismiss the appeal as it would not be satisfied that a different sentence should be imposed.
[21]Citing s 280(1) of the CPA.
The respondent contends that the orders of this Court of 13 July 2022 more than adequately captured the entirety of the applicant’s offending. Adequate weight was given to family hardship as a mitigating factor. The respondent maintains this submission even though, at the time, the application for leave to appeal the first sentence lay apparently abandoned. The respondent argues that the material relied upon in this regard is identical, and this Court considered the evidence of family hardship in making its orders.
The respondent further contends that if this Court nonetheless considers it necessary to adjust the first sentence to incorporate a discount for family hardship, in accordance with this Court’s reasons of 13 July 2022, the reduction should be minimal. Other factors, such as the objective gravity of the offending, general deterrence and community protection, ought be the primary sentencing considerations. Family hardship will necessarily be given less weight where the offence is very serious, as the hardship can really only be alleviated by not imposing a sentence of imprisonment at all.[22] In this particular case, the applicant’s offending was of a grave nature aimed at causing terror to Shia Muslims.[23]
[22]Citing R v Panuccio (Supreme Court of Victoria, Winneke P, Brooking and Charles JJA, 4 May 1998) 7 (Winneke P) cited in Markovic (2010) 30 VR 589, 592–3 [10] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA); [2010] VSCA 105.
[23]Citing Reasons for First Sentence, [1].

Discussion

We accept the respondent’s submission that when this Court resentenced the applicant to a new total effective head sentence and new non-parole period in the first appeal, it imposed a sentence that more than adequately captures the entirety of the offending and the entirety of the relevant factors in mitigation, including the post-Totaan concept of family hardship.
Put another way, we are strongly of the view that whilst the first sentence failed to take into account a mildly relevant fact to sentencing, the total effective sentence of 32 years imprisonment with a non-parole period of 24 years is modest indeed for the overall criminality exhibited by the applicant.
The approach proposed by the applicant is, in our view, quite artificial. The applicant has been convicted of three grave terrorism offences. These are offences that are inimical to the safety and good order of our community and which call for sentences that demonstrate to all prospective terrorists that their criminal actions will be met with severe penalties. The applicant succeeded in the first appeal because he was able to demonstrate that the total effective sentence, which incorporated both the first and second sentences, would be crushing upon him in all the circumstances. Those circumstances included his positive steps towards deradicalisation, his prospects for rehabilitation, his age and prior history, and a modest allowance for non-exceptional family hardship. Had this appeal been heard with the first appeal no greater deduction would have been granted to the cumulation imposed. Further the Tinney J head sentence would not have been reduced in a way that required a different total effective sentence.
There is no reasonable prospect that this Court would reduce the total effective sentence, despite the sentencing error to which we have referred. Leave to appeal will be refused.
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[2023] VSCA 177

3 August 2023