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R v Biber

R v Biber

Case [2018] NSWCCA 271 29 November 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Biber [2018] NSWCCA 271
Hearing dates: 10 August 2018
Date of orders: 29 November 2018
Decision date: 29 November 2018
Before: Meagher JA; Hoeben CJ at CL; Fagan J
Decision:
Appeal dismissed.

Catchwords: CRIME – sentencing – where respondent pleaded guilty to offence “enter a foreign State with intent to engage in a hostile activity in that foreign State” contrary to Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6(1)(a) – respondent entered Syria with intent to engage in “armed hostilities” – sentenced to 4 years and 9 months imprisonment, with 2 years and 6 months non-parole period – Commonwealth Director of Public Prosecutions appealed – whether sentencing judge erred in characterisation of the objective seriousness of the offending – whether sentencing judge erred in finding that the respondent had “reasonable” prospects of rehabilitation – whether sentence manifestly inadequate
Legislation Cited: Crimes Act 1914 (Cth), s 16A
Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6
Crimes Legislation Amendment Act 1987 (Cth), s 22
Criminal Appeal Act 1912 (NSW), s 5D
Cases Cited: Alqudsi v Commonwealth of Australia (2015) 91 NSWLR 92; [2015] NSWCA 351
CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9
Director of Public Prosecutions (Cth) v MHK (2017) 52 VR 272; [2017] VSCA 157
House v The King (1936) 55 CLR 499
Lodhi v The Queen (2007) 179 A Crim R 470; [2007] NSWCCA 360
Mulato v Regina [2006] NSWCCA 282
R v Alqudsi [2016] NSWSC 1227
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Pham (2015) 256 CLR 550; [2015] HCA 39
R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225
R v Succarieh; R v Succarieh; Ex parte Commonwealth Director of Public Prosecutions [2017] QCA 85
Regina v KB; Regina v KL; Regina v RJB [2011] NSWCCA 190
The Queen v Ashdown [2003] VSCA 216
Texts Cited: JD Heydon, Cross on Evidence, (11th ed 2017, LexisNexis) at [1170]
Category: Principal judgment
Parties: Commonwealth Director of Public Prosecutions (Appellant)
Mehmet Biber (Respondent)
Representation:
Counsel:
SM McNaughton SC and L Crowley (Appellant)
R Wilson and M Fokkes (Respondent)
Solicitors:
Commonwealth Director of Public Prosecutions (Appellant)
Peter Murphy Criminal Law (Respondent)

File Number(s): 2016/328292
Publication restriction: N/A
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law – Criminal

Citation:

[2018] NSWSC 535

Date of Decision:

27 April 2018

Before:

Adamson J

File Number(s):

2016/328292

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent entered a plea of guilty to the charge that he “did enter a foreign State, namely the Syrian Arab Republic, with intent to engage in a hostile activity in that foreign State”, contrary to Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6(1)(a), which carried a maximum penalty of 20…

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 Biber

Details

AGLC: R v Biber [2018] NSWCCA 271
Case: [2018] NSWCCA 271
Decision Date: 29 November 2018

CaseChat Overview and Summary

The respondent, Biber, pleaded guilty to entering Syria with the intent to engage in armed hostilities, an offence under section 6(1)(a) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The Commonwealth Director of Public Prosecutions appealed the sentence of four years and nine months imprisonment, with a non-parole period of two years and six months, arguing that it was manifestly inadequate. The appeal raised questions about the sentencing judge's assessment of the objective seriousness of the offence and the prospects of the respondent's rehabilitation.

The legal issues before the court were whether the sentencing judge had erred in characterising the objective seriousness of the offending and whether the judge had correctly found that the respondent had reasonable prospects of rehabilitation. Additionally, the court had to determine whether the sentence imposed was manifestly inadequate. The appeal hinged on the weight given to these factors in the sentencing process and whether they justified a more severe penalty.

In addressing the appeal, the court reviewed the sentencing judge's assessment of the objective seriousness of the offence. It found that the judge had appropriately considered the gravity of entering a foreign state to engage in armed conflict, including the potential risk to national security and the harm to others. The court also examined the evidence regarding the respondent's prospects of rehabilitation, concluding that the sentencing judge's finding was supported by the material before the court. Given these considerations, the court found no error in the sentencing judge's approach and dismissed the appeal. The original sentence was upheld.

As a result, the sentence of four years and nine months imprisonment, with a non-parole period of two years and six months, remained in place. The appeal by the Commonwealth Director of Public Prosecutions was dismissed, and the original sentence was affirmed.

Orders