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R v Alqudsi

R v Alqudsi

Case [2016] NSWSC 1227 1 September 2016

Criminal Liability

Sentencing

Criminal Law

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Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Alqudsi [2016] NSWSC 1227
Hearing dates: Dates of trial: 23, 24, 27, 28, 29, 30 June, 1, 4, 5, 6, 7, 8, 11, 12 July 2016. Proceedings on sentence: 24 August 2016
Date of orders: 01 September 2016
Decision date: 01 September 2016
Jurisdiction: Common Law - Criminal
Before: Adamson J
Decision:
See paragraph [126]

Catchwords:
CRIMINAL LAW – sentencing – conviction after jury trial of seven offences under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) of assisting persons with the intention that they enter Syria for the purposes of engaging in armed hostilities – principles of general deterrence and need to denounce the offending
CRIMINAL LAW – sentencing – Commonwealth offence – seven offences – no statutory ratio or judicially determined norm for proportion between non-parole and total term – single non-parole period imposed
Legislation Cited:
Crimes Act 1914 (Cth), ss 16A, 16B
Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 6, 7
Crimes (Sentencing Procedure) Act 1999 (NSW), s 86

Cases Cited:
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Johnson v The Queen [2004] HCA 15; 78 ALJR 616
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Power v The Queen (1974) 131 CLR 623
R v Simpson [2001] NSWCCA 534
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
Veen v The Queen (No. 2) (1998) 164 CLR 465
Weininger v The Queen [2003] HCA 14; 212 CLR 629

Category: Sentence
Parties: Regina
Hamdi Alqudsi
Representation:
Counsel:
D Staelhi SC/R Glover (Crown)
S Corish (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Zali Burrows Lawyers (Offender)

File Number(s): 2013/363649

Judgment

On 12 July 2016 following a trial by jury Hamdi Alqudsi was convicted of seven counts of performing services for persons with the intention of their entering Syria for the purposes of engaging in armed hostilities there contrary to s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The maximum penalty for each offence is ten years.
The first charge on the indictment was that the offender:

“Between about 25 June and 14 October 2013, at Sydney, in the State of NSW, did perform services for another person, namely Tyler Casey (also known as Abu Qaqa), with the intention of supporting or promoting the commission of an offence against section 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978, being the entry by that person into a foreign State, namely Syria, with intent to engage in a hostile activity in Syria, in particular, engaging in armed hostilities in Syria.”

The remaining charges were in identical terms save for the name of the person for whom the offender provided services. In the second charge the person named was Caner Temel (also known as Abu Musa); in the third, Mehmet Biber (also known as Abu Abdul Malik); in the fourth, Muhammad Abdul-Karim…

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 R v Alqudsi

Details

AGLC: R v Alqudsi [2016] NSWSC 1227
Case: [2016] NSWSC 1227
Decision Date: 01 September 2016

CaseChat Overview and Summary

The case of R v Alqudsi involved the defendant, Alqudsi, who was convicted by a jury of seven offences under the Crimes (Foreign Incursions and Recruitment) Act 1978. The charges related to Alqudsi's assistance to individuals with the intention that they enter Syria to engage in armed hostilities. The court was tasked with determining an appropriate sentence for these offences. The legal issues before the court were to determine the appropriate sentence for these serious criminal offences, taking into account the principles of general deterrence and denunciation.

The court was required to consider the principles of sentencing, particularly focusing on general deterrence and the need to denounce the offending behaviour. Given that these were Commonwealth offences and there was no statutory ratio or judicially determined norm for the proportion between the non-parole period and the total term, the court had to exercise its discretion carefully. The court needed to balance the severity of the offences with the appropriate punishment that would effectively serve the purposes of deterrence and denunciation.

In reaching its decision, the court recognised the gravity of the offences and the significant community impact of such activities. The court determined that a single non-parole period was appropriate, reflecting the cumulative effect of the multiple offences. This approach aimed to ensure that the sentence was proportionate and served the dual purposes of deterrence and denunciation. The final orders of the court reflected this careful balancing of the relevant sentencing principles.

Orders