R v Atik - [2007] VSC 299

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1544 of 2006

THE QUEEN

IZZYDEEN ATIK

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 July; 13 and 14 August 2007
DATE OF SENTENCE:	23 August 2007
CASE MAY BE CITED AS:	R v Atik
MEDIUM NEUTRAL CITATION:	[2007] VSC 299

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CRIMINAL LAW – Sentencing – Federal offences – Terrorism offences – Evidence – Expert evidence as to nature of terrorism – Relevance to sentencing – Being a member of a terrorist organisation – Severe mental illness and intellectual disability - Plea of guilty after committal but before trial – Assistance to law enforcement authorities – Undertaking to give evidence – Remorse – ss 102.3(1), 102.7(1) Criminal Code 1995 (Cth); ss 16A, 16A(2)(h), 16E(2)(a), 19(2), 19AG, 21E Crimes Act 1914 (Cth); s 18 Sentencing Act 1991 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Maidment SC with Mr N. Robinson, Mr D. Lane and Ms L. Taylor	Commonwealth Director of Public Prosecutions
For the prisoner	Mr M.G. O’Connell	Galbally & O’Bryan

HIS HONOUR:

Izzydeen Atik is before this Court for sentence, having now pleaded guilty to two counts on an indictment on which he was arraigned, together with 12 others, on 21 December 2006. The counts to which he has now pleaded guilty are in the following terms:
Count 1:That between about 1 July 2004 and about 8 November 2005 at Melbourne and elsewhere he was intentionally a member of a terrorist organisation knowing that that organisation was a terrorist organisation contrary to s 102.3(1) of the Criminal Code1995 (Cth); and
Count 7: That between about 10 September 2004 and about 8 November 2005 at Melbourne he intentionally provided to a terrorist organisation resources, namely making himself available to the organisation as a source of supply, support, information, aid or encouragement, that would help the organisation directly or indirectly prepare for or foster the doing of a terrorist act by arranging air travel, knowing that the organisation was a terrorist organisation contrary to s 102.7(1) of the Criminal Code 1995 (Cth).
The offence charged in Count 1 carries a maximum penalty of ten years’ imprisonment and that charged in Count 7 a maximum penalty of 25 years’ imprisonment.

Although he had originally pleaded not guilty to these charges, in June 2007 without consulting his legal advisers, Atik informed police investigators that he wished to change his plea to guilty on both counts. He also told the investigators that he would thereafter co‑operate with them with respect to the Crown case against his co‑accused.

The Crown case against Atik

The Crown case against Atik is that at some time before 2004 a group or “jemaah” formed around a Muslim cleric called Abdul Nacer Benbrika who lived in Melbourne and taught what he claimed to be a version of Islam, which included the concept of violent jihad[1] or holy war. He sought to justify those teachings…

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 Atik

Details

AGLC: R v Atik [2007] VSC 299
Case: [2007] VSC 299
Decision Date: 23 August 2007

CaseChat Overview and Summary

The case of R v Atik involved the sentencing of the accused, who had pleaded guilty to federal terrorism offences. The court was tasked with determining the appropriate sentence for the defendant, who was a member of a terrorist organisation and had severe mental illness and intellectual disability. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court included the relevance of expert evidence as to the nature of terrorism in the sentencing process, the impact of the defendant's membership in a terrorist organisation, and the consideration of the defendant's severe mental illness and intellectual disability. Additionally, the court needed to assess the defendant's plea of guilty, his assistance to law enforcement authorities, his undertaking to give evidence, and his remorse.

The court found that the expert evidence on the nature of terrorism was relevant to the sentencing process, as it provided context for the gravity of the defendant's actions. The court also noted the defendant's membership in a terrorist organisation and his severe mental illness and intellectual disability, which were mitigating factors. However, the court gave significant weight to the defendant's plea of guilty, his assistance to law enforcement authorities, and his undertaking to give evidence, which were all aggravating factors. The court also considered the defendant's remorse, which was a mitigating factor. Ultimately, the court sentenced the defendant to a term of imprisonment, taking into account all the relevant factors.

The court made orders for the defendant's detention and supervision, as well as for the forfeiture of any property obtained through the commission of the offences. The court also ordered that the defendant be subject to a supervision order upon his release from prison.

Orders