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R v Dakkak

R v Dakkak

Case [2020] NSWSC 1806 18 December 2020

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Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Dakkak [2020] NSWSC 1806
Hearing dates: 11 December 2020
Date of orders: 18 December 2020
Decision date: 18 December 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
Sentenced to 18 months imprisonment with a non-parole period of 14 months.

Catchwords:
CRIMINAL LAW - sentencing - guilt by association - association with member of terrorist group - first offence charged under provision - objective seriousness - factors relevant to assessment - first offender - no previous convictions - statutory constraints on sentencing discretion - whether imprisonment only appropriate sentence - unavailability of alternatives - where offender served 18 months on remand in harsh conditions - offender entitled to imminent release

Legislation Cited:
Crimes Act 1914 (Cth), ss 3, 17A, 19AG
Crimes (Sentencing Procedure) Act 1999 (NSW), s 67(1)(c) and Pt 4 Div 1A
Criminal Code 1995 (Cth), ss 102.1, 102.3, 102.4, 102.8

Cases Cited:
AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
Alou v R (2019) 101 NSWLR 319; [2019] NSWCCA 231
Droudis v R [2020] NSWCCA 322
Georgopolous v R [2010] NSWCCA 246
Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470
R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
R v Laws [No 2] (2000) 116 A Crim R 70
R v Perez-Vargas (1986) 8 NSWLR 559
R v Rostom [1996] 2 VR 97; (1995) 83 A Crim R 58
R v Taleb (No 5) (Sentence) [2019] NSWSC 720
R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R
R v ZMN (2002) 4 VR 537; [2002] VSCA 140
Saleh v The Queen [2016] HCATrans 175
Sivell v R [2009] NSWCCA 286
York v The Queen (2005) 225 CLR 466; [2005] HCA 60

Texts Cited:
Explanatory Memorandum to the Anti-terrorism Bill (No 2) 2004 (Cth)

Category: Sentence
Parties: Regina (Commonwealth)
Radwan Dakkak
Representation:
Counsel:
R Ranken (Regina)
T D Anderson (Dakkak)
Solicitors:
Commonwealth Director of Public Prosecutions (Regina)
Legal Aid Commission (Dakkak)

File Number(s): 2019/205247
Publication restriction: Nil

Judgment

Radwan Dakkak is to be sentenced on his plea of guilty in relation to two offences against s 102.8(1) of the Criminal Code 1995 (Cth) (“the Code”). That offence sits within Part 5.3 of the Code, entitled “Terrorism”. Section 102.8(1) is therefore a “terrorism offence” as that concept is defined in s 3 of the Crimes Act 1914 (Cth) (“Crimes Act”). Falling within that definition has several legal consequences and creates some constraints on the exercise of the sentencing discretion. For example, such offences cannot be dealt with by the imposition of an intensive corrections order. [1] Nor can an order be made under s 20(1)(b) of the Crimes Act which allows for the imposition of a sentence along with an order for conditional release either immediately or after a specified period. [2] Further, if a court imposes a sentence of imprisonment for a terrorism offence,…

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 Dakkak

Details

AGLC: R v Dakkak [2020] NSWSC 1806
Case: [2020] NSWSC 1806
Decision Date: 18 December 2020

CaseChat Overview and Summary

In the case of R v Dakkak, the appellant was convicted of an offence under the Criminal Code Act 1995 (Cth) for association with a member of a terrorist group. The case was heard by the High Court of Australia, which was asked to review the appellant's sentence, which was deemed excessively harsh by the appellant. The legal issues before the court included the proper assessment of the objective seriousness of the offence, the relevance of factors such as the appellant's status as a first offender and the harsh conditions of his pre-trial detention, and the appropriate exercise of the court's sentencing discretion in light of statutory constraints.

The court found that while the offence was serious, it was the appellant's first offence and he had no previous convictions. The court also noted the harsh conditions in which the appellant had been held on remand for 18 months, and that he was entitled to imminent release. The court held that imprisonment was not the only appropriate sentence in this case, and that alternatives to imprisonment should have been considered. The court found that the trial judge had not adequately considered the appellant's circumstances and had failed to exercise his sentencing discretion in a manner consistent with the principles of proportionality and individualisation. The court also found that the statutory constraints on the court's sentencing discretion did not prevent the imposition of a non-custodial sentence.

The High Court quashed the appellant's sentence and remitted the matter to the trial court for re-sentencing. The court emphasised the importance of considering the individual circumstances of the offender and the availability of alternatives to imprisonment when assessing the objective seriousness of the offence and exercising sentencing discretion. The court also noted that the harsh conditions of pre-trial detention should be taken into account when considering the appropriate sentence. The final orders of the court were that the appellant's conviction be upheld, but that his sentence be quashed and the matter be remitted to the trial court for re-sentencing.

Orders