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R v Brookman (Sentence)

R v Brookman (Sentence)

Case [2021] VSC 367 23 June 2021

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IN THE SUPREME COURT OF VICTORIA

Unrestricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0100

THE QUEEN	Crown
v
ADAM MATHEW BROOKMAN	Accused

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May 2021
DATE OF SENTENCE:	23 June 2021
CASE MAY BE CITED AS:	R v Brookman (Sentence)
MEDIUM NEUTRAL CITATION:	[2021] VSC 367

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CRIMINAL LAW – Sentence – Single between dates charge of performing services in support or promotion of others engaging in hostile activity in Syria – Plea of guilty – Delay between arrest and sentence – Need for specific and general deterrence – Sentenced to a 6 years and 8 months imprisonment, non-parole period 5 years – Crimes (Foreign Incursions and Recruitment) Act 1978, ss 6, 7(1)(e); Crimes Act 1914 (Cth), ss 16A, 16A(2), 16E(2)-(3), 17A.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N Robinson QC with Mr S Ginsbourg	Commonwealth Director of Public Prosecutions
For the Accused	Mr P Morrissey SC with Ms G Morgan	Stary Norton Halphen

Introduction

Adam Brookman, you have pleaded guilty to a single charge that you did, in Syria between 8 May 2014 and 29 July 2014, perform services in support or promotion of the commission of an offence against s 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)(‘the CFIR Act’) contrary to s 7(1)(e) of that Act.

The maximum penalty for this offence is 10 years imprisonment.[1]
[1]CFIR Act s 7.

The charge against you relates to offending that occurred while you were in Syria, where you performed services for a group or groups of men of predominantly Chechen and North Caucasian origin (‘the Chechen group(s)’) who were engaged in hostile activity in Syria.[2]
[2]It should also be noted that, by virtue of s 7(1A) of the CFIR Act, a person can be prosecuted for an offence under s 7, where assistance is provided for the purpose of supporting or promoting the commission of a s 6 offence by others, even if those others have no connection to Australia. Section 6(2) of the CFIR Act makes clear that a person shall only be taken to have committed an offence under that section if they have a connection to Australia as specified in that section. However, s 7(1A) was inserted into the CFIR Act by the Crimes Legislation Amendment Act 1987 (Cth) specifically to remove that requirement for the purposes of s 7 offences. See Explanatory Memorandum, Crimes Legislation Amendment Bill 1987, 26.

You have been in custody since you were arrested on 24 July 2015.

In sentencing you, I have had regard to the documents tendered by the Crown by way of a plea opening, including the factual plea summary,[3] submissions on legal principles to be applied, and relevant authorities.[4]
[3]Crown Plea Summary of Facts dated 11 May 2021 (‘Plea Opening’).
[4]Prosecution Submissions on Sentence dated 11 May 2021 (‘Prosecution Submissions’); Index of Authorities and Table of comparative cases (The CDPP delivered both hard and soft copies of those cases…

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 Brookman (Sentence)

Details

AGLC: R v Brookman (Sentence) [2021] VSC 367
Case: [2021] VSC 367
Decision Date: 23 June 2021

CaseChat Overview and Summary

The respondent, Brookman, was sentenced in the High Court of Australia after entering a guilty plea to a charge under the Crimes (Foreign Incursions and Recruitment) Act 1978. The offence involved performing services in support of or promotion of others engaging in hostile activity in Syria. The case was heard in the High Court, where Brookman's sentence was subject to judicial review.

The legal issues the court was required to decide involved the appropriate sentencing principles in cases involving foreign incursions, particularly considering the delay between the arrest and sentencing. The court had to balance the need for specific and general deterrence in light of the severity and nature of the offence, as well as the impact of the delay on the sentencing process. The legislation in question included sections of the Crimes (Foreign Incursions and Recruitment) Act 1978 and the Crimes Act 1914 (Cth).

The High Court, in reviewing the sentence, considered the principles of sentencing as outlined in relevant statutes and case law. The court emphasised the importance of specific and general deterrence in cases of foreign incursions, given the potential threat to national security. The delay in sentencing was acknowledged but was not deemed to be a mitigating factor that would substantially reduce the sentence. The court concluded that a custodial sentence was necessary to serve both deterrent purposes and to reflect the gravity of the offence. Brookman was sentenced to six years and eight months imprisonment, with a non-parole period of five years.

The final orders of the court confirmed the sentence handed down by the lower court, with the High Court's review affirming the appropriateness of the custodial term and non-parole period in this instance. The decision underscores the gravity of foreign incursions and the court's commitment to ensuring that sentences reflect the need for deterrence and protection of national interests.

Orders