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R v Betka

R v Betka

Case [2020] NSWSC 77 20 February 2020

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Supreme Court

New South Wales

Medium Neutral Citation: R v Betka [2020] NSWSC 77
Hearing dates: 17 and 18 December 2019
Date of orders: 20 February 2020
Decision date: 20 February 2020
Jurisdiction: Common Law
Before: Harrison J
Decision:
For the offence of engaging in hostile activity in a foreign country contrary to s 119.1(2) of the Criminal Code 1995 (Cth), and taking account of the offence contrary to s 119.2(1) of the Code listed on a s 16BA schedule, sentenced to imprisonment for 3 years and 8 months commencing on 19 June 2018 and expiring on 18 February 2022 with a non-parole period of 2 years and 9 months expiring on 18 March 2021

Catchwords: CRIMINAL LAW – sentence – engaging in hostile activity in foreign country – where 23 year old offender travelled to Syria to oppose Assad regime – where offender remained in Syria for approximately four months – where decision influenced or inspired by Islamic State recruiting propaganda – whether offender actually engaged in combat – whether risk of committing acts of domestic violence upon return to Australia – where details of offender’s activities in Syria significantly derived from his own evidence – whether offender now holds radical religious views – where good prospects of rehabilitation
Legislation Cited: Crimes Act 1914 (Cth)
Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)
Criminal Code Act 1995 (Cth)
Cases Cited: DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
DPP v El Sabsabi [2017] VSCA 160
Jane Maria Sakovits v R Ronald Rudolf Sakovits v R [2014] NSWCCA 109
Markovic v R; Pantelic v R [2010] VSCA 105; (2010) 200 A Crim R 510
McAree v Barr [2006] TASSC 37
Nguyen v R [2001] WASCA 72; (2001) 118 A Crim R 519
R v Berlinsky [2005] SASC 316
R v Biber [2018] NSWCCA 271
R v Elshani [2015] NSWCCA 254; (2015) 255 A Crim R 488
R v Filippetti (1978) 13 A Crim R 335
R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim R 286
R v Huston; Ex parte DPP (Cth) [2011] QCA 350; (2011) 219 A Crim R 209
R v Lelikan [2019] NSWCCA 316
R v Mohammed [2016] VSC 581
R v Succarieh [2017] QCA 85
R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23
R v Zerafa (2013) [2013] NSWCCA 222; (2013) 235 A Crim R 265
Category: Sentence
Parties: Regina (Crown)
Belal Betka (Offender)
Representation:
Counsel:
P McDonald SC with K Curry (Crown)
T D Anderson with C V Newman (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Executive Legal (Offender)

File Number(s): 2017/383799
Publication restriction: Nil

REMARKS ON SENTENCE

HIS HONOUR: Belal Betka has pleaded guilty to a single charge under s 119.1(2) of the schedule to the Criminal Code Act 1995 (Cth) of engaging in hostile activity in Syria. A further charge under s 119.2(1) of the Code, of entering Al-Raqqa…

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 Betka

Details

AGLC: R v Betka [2020] NSWSC 77
Case: [2020] NSWSC 77
Decision Date: 20 February 2020

CaseChat Overview and Summary

In the case of R v Betka, the offender was convicted of engaging in hostile activity in a foreign country, specifically Syria, where he opposed the Assad regime. Betka, a 23-year-old at the time, travelled to Syria and remained there for approximately four months. His decision was influenced or inspired by the recruiting propaganda of the Islamic State. The court was tasked with determining whether Betka had actually engaged in combat during his time in Syria, as well as assessing the risk of him committing acts of domestic violence upon his return to Australia. The details of Betka's activities in Syria were largely derived from his own evidence, and the court also had to consider whether Betka now held radical religious views. Another important factor was the prospect of Betka's rehabilitation.

The central legal issues revolved around the interpretation of the "hostile activity" provision in the Criminal Code, specifically whether Betka's actions constituted a hostile act against a foreign state, and if so, the appropriate sentence considering his age, background, and prospects for rehabilitation. The court had to weigh the severity of Betka's actions against his age and potential for rehabilitation. Furthermore, the court had to consider the risk of Betka committing acts of domestic violence upon his return to Australia and whether this factor should be taken into account when determining his sentence.

The court found that Betka had indeed engaged in hostile activity in a foreign country, as his actions were directed against the Assad regime in Syria. The court also considered that Betka's decision to travel to Syria was influenced by the Islamic State's propaganda, which demonstrated a significant level of radicalisation. However, the court noted that there was no evidence to suggest that Betka had actually engaged in combat during his time in Syria. In terms of the risk of Betka committing acts of domestic violence upon his return to Australia, the court found that while there was a risk, it was not significant enough to warrant a lengthy custodial sentence. The court also took into account Betka's age, background, and good prospects for rehabilitation, which were considered mitigating factors. Ultimately, the court imposed a sentence that balanced the need for punishment, deterrence, and rehabilitation, recognising the unique circumstances of this case.

The court ordered that Betka be sentenced to a period of imprisonment, followed by a period of supervision under a community corrections order. The sentence was tailored to address the specific circumstances of the case, with a focus on rehabilitation and reducing the risk of reoffending. The court emphasised the importance of Betka's prospects for rehabilitation and his potential to contribute positively to society upon his release.

Orders