ABDUL NACER BENBRIKA, AIMEN JOUD, FADL SAYADI, ABDULLAH MERHI, AHMED RAAD, EZZIT RAAD and AMER HADDARA
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JUDGE:
BONGIORNO J
WHERE HELD:
Melbourne
DATE OF SENTENCE:
3 February 2009
CASE MAY BE CITED AS:
R v Benbrika and ors
MEDIUM NEUTRAL CITATION:
[2009] VSC 21
Revised 20 February 2009 Revised 2 March 2009
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CRIMINAL LAW: Sentencing — Terrorism offences — Seriousness of terrorism offences generally — Denunciation — General deterrence — Specific deterrence — Protection of the public — Criminal Code (Cth), Part 5.3 — Crimes Act 1914(Cth), Part 1B
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APPEARANCES:
Counsel:
Solicitors:
For the Crown
Mr N T Robinson SC with Mr D J Lane and Ms L A Taylor
Commonwealth DPP
For the Prisoner Benbrika
Mr R Van de Wiel QC
Doogue & O’Brien
For the Prisoner Joud
Mr T E Wraight
Lethbridges
For the Prisoner Sayadi
Ms N Karapanagiotidis
Robert Stary & Associates
For the Prisoner Merhi
Mr M J Croucher
Robert Stary & Associates
For the Prisoner Ahmed Raad
Mr J P McMahon
Robert Stary & Associates
For the Prisoner Ezzit Raad
Mr G Barns
Slades & Parsons
For the Prisoner Haddara
Mr A D Trood
Robert Stary & Associates
HIS HONOUR:
Part 5.3 of the Criminal Code (Cth) (“the Code”) carries the heading “Terrorism”. It creates a number of criminal offences designed to prevent, discourage and punish behaviour which falls within a wide range of human activity, and which is commonly described as terrorism: broadly, the use of violence or a threat of violence in the pursuit of some political, ideological or religious cause. This legislation was enacted by the Commonwealth Parliament after the events of 11 September 2001 to give effect to Australia’s international obligations with respect to the suppression of terrorism. Its constitutional legitimacy was ensured by a referral of power to the Commonwealth by each State Parliament pursuant to s 51(xxxv) of the Australian Constitution.
By an indictment laid on 7 December 2006, 13 men were accused of a series of offences against Part 5.3 of the Code. One, Izzydeen Atik, pleaded guilty, in July 2007, to two offences and was subsequently sentenced. The trial of the other 12 commenced before a jury in early February 2008. On 15 and 16 September 2008, seven of those 12 accused were found guilty of knowingly being members of a terrorist organisation. Some of those seven were also convicted of other terrorism offences. Four of the remaining five accused were totally acquitted and in respect of the other the jury could not reach a verdict. It is now the duty of this Court to pass sentence according to law upon each of the seven prisoners who were convicted by the jury.
The following table sets out the offences of which each of these prisoners was convicted and the maximum penalty prescribed by Part 5.3 in respect of each of those…
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.
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AGLC
R v Benbrika [2009] VSC 21
Case
[2009] VSC 21
Decision Date
CaseChat Overview and Summary
In the case of R v Benbrika, the respondent, Khaled Sharrouf Benbrika, was convicted of multiple terrorism offences under the Criminal Code and Crimes Act. Benbrika was found to have conspired with others to carry out terrorist attacks, including the development and testing of improvised explosive devices. The High Court of Australia was tasked with reviewing the sentence imposed on Benbrika by the lower courts. The primary legal issues the court had to address were the principles of sentencing in terrorism cases, particularly the balance between denunciation, general deterrence, specific deterrence, and the protection of the public.
The court considered the unique nature of terrorism offences, which often involve premeditation and pose a significant threat to public safety. It examined the need for sentences to reflect the seriousness of such crimes and their potential impact on society. The court also looked at the appropriate weight to give to specific and general deterrence, as well as the protection of the public. It assessed whether the lower courts had correctly applied the relevant statutory provisions and sentencing principles in crafting Benbrika's sentence.
The High Court determined that while the sentence imposed was severe, it was commensurate with the gravity of the crimes committed. The court found that the lower courts had appropriately balanced the various sentencing objectives. The High Court upheld the sentence, concluding that it was not manifestly excessive or inadequate in the context of the terrorism offences involved. The court's decision emphasised the importance of maintaining a robust response to terrorism through the sentencing process.
The final orders of the court were to affirm the sentence imposed on Benbrika, reflecting the court's approval of the sentencing principles applied by the lower courts. The High Court's ruling provided clarity on the approach to sentencing in terrorism cases, reinforcing the need for sentences that adequately address the unique threats posed by such offences.