R v Azari (No 12)

Case [2019] NSWSC 314


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Azari (No 12) [2019] NSWSC 314
Hearing dates: 1 February 2019
Decision date: 29 March 2019
Jurisdiction:Common Law - Criminal
Before: N Adams J
Decision:

The offender, Omarjan Azari, is convicted and sentenced as follows:

 

(1) Convicted of offences under ss 11.1(1)/101.6(1) and 102.6(1) of the Criminal Code (Cth).

 

(2) For the offence under s 101.6(1) of the Criminal Code (Cth), sentenced to imprisonment for 12 years commencing on 18 September 2014.

 

(3) For the offence under ss 11.1(1) and 102.6(1) of the Criminal Code (Cth), and taking into account two further offences under s 102.6(1) of the Criminal Code (Cth) for the purpose of s 16BA of the Crimes Act 1914 (Cth), sentenced to imprisonment for 8 years commencing on 18 September 2024.

 

(4) In accordance with s 19AG of the Crimes Act 1914 (Cth), a single non-parole period of 13 years and 6 months fixed commencing on 18 September 2014 and expiring on 17 March 2028. The head sentence of 18 years imprisonment will expire on 17 September 2032.

(5) Pursuant to s 105A.23 of the Criminal Code (Cth), the offender warned that an application may be made under Division 105A of that Code for a continuing detention order requiring the offender to be detained in a prison after the end of his sentence for the offence under s 101.6(1) of the Criminal Code (Cth).
Catchwords:

CRIMINAL LAW – sentence after trial – terrorism offences – conviction for doing an act in preparation for, or planning, a terrorist act or acts – Criminal Code (Cth), s 101.6(1) – guilty plea to attempting to make funds available to terrorist organisation – Criminal Code (Cth), ss 11.1(1) and 102.6(1) – where offender was pursuing the agenda of Islamic State – where offender made funds available to Islamic State to fund foreign fighters – where offender participated in intercepted telephone conversation with senior Islamic State member discussing plan for domestic terrorist attacks

Legislation Cited:

Crimes Act 1914 (Cth), ss 3(1), 16A, s16BA, 17A, 19AG
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Administration of Sentences) Regulation 2014 (NSW)
Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)
Criminal Code Act 1995 (Cth), ss11.1(1), 101.6(1), 102.6(1)
Evidence Act 1995 (NSW)

Cases Cited:

Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1991 (No 1 of 2002); (2002) 56 NSWLR 146; (2002) 137 A Crim R 180; [2002] NSWCCA 518
Benbrika v R (2010) 29 VR 593; [2010] VSCA 281
Director of Public Prosecutions (Cth) v MHK [2017] VSCA 157
DPP (Cth) v Besim [2017] VSCA 158
Elomar v Regina [2014] NSWCCA 303; (2014) 316 ALR 206
Johnson v The Queen (2004) 78 ALJR 616
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Postiglione v The Queen (1997) 189 CLR 295
Regina v Touma [2008] NSWSC 1475
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AGLC
R v Azari (No 12) [2019] NSWSC 314
Case
[2019] NSWSC 314
Decision Date

CaseChat Overview and Summary

In this case, the respondent, Azari, faced criminal charges following a conviction for engaging in activities preparatory to, or in planning for, a terrorist act. The prosecution brought the matter before the court under sections 101.6(1) and 11.1(1) of the Criminal Code, concerning the provision of funds to a terrorist organisation. Azari had pleaded guilty to attempting to make funds available to the Islamic State, with the intent to support foreign fighters and to fund potential domestic terrorist attacks. The case was heard in the High Court of Australia, where the primary legal issues revolved around the appropriate sentence to be imposed following the respondent's guilty plea.

The court was tasked with determining the appropriate sentencing principles to apply in light of the respondent's substantial criminal conduct and the significant risk he posed to the community. It was necessary to balance the culpability of the offence against the principle of proportionality in sentencing. The court also needed to consider the precedents set in previous cases involving terrorism offences, and how these applied to the unique circumstances of this case. Additionally, the court had to assess the impact of the offender's involvement in planning domestic terrorist attacks, which added a layer of severity to the sentencing process.

In reaching its decision, the court carefully considered the principles of individual culpability, deterrence, and denunciation, as well as the specific facts of the case. The court concluded that the respondent's actions demonstrated a high degree of culpability, given his dedication to the agenda of the Islamic State and his active participation in planning terrorist activities. The court also highlighted the significant risk posed by the respondent to the community, both domestically and internationally. Ultimately, the court found that the appropriate sentence should reflect the seriousness of the offence and the need to protect the public from further harm. The High Court determined that the sentence should be commensurate with the gravity of the respondent's criminal conduct and the risk he posed to the community.

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