R v EB

Case [2018] NSWSC 201 2 March 2018

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v EB [2018] NSWSC 201
Hearing dates: 13 December 2017 & 2 February 2018
Date of orders: 02 March 2018
Decision date: 02 March 2018
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
For the offence contrary to s 119.4(5) of the Criminal Code of intentionally performing services for Amin Elmir with the intention of supporting the commission by him of an offence against s 119.1, and taking into account the offence contrary to s 119.4(1) of the Criminal Code of committing acts in preparation for incursions into a foreign country for the purpose of engaging in hostile activities, the offender is sentenced to a term of imprisonment for two years and three months commencing 3 November 2016 and expiring 2 February 2019 with a non-parole period of one year eight months and one week expiring 9 July 2018.

Catchwords:
CRIMINAL LAW – sentence – foreign incursion offences – ss 119.1 and 119.4 Criminal Code (Cth) - offender performed services for another with the intention of supporting the commission by them of an offence against incursions into a foreign country for the purpose of engaging in hostile activities – s 16BA offence – offender doing preparatory acts for incursion into a foreign country for the purpose of engaging in hostile activities - offending underpinned by an adherence to extremist ideology – offender made telephone calls to obtain assistance for co-offender to cross from Turkey to Syria – no assistance obtained - low level of objective seriousness – weight given to subjective circumstances – offender aged 16 and 17 at time of offending - acts preparatory to foreign incursion distinguished from terrorist acts directed less remotely towards the Australian community – risk of re-offending – lack of developed risk assessment protocols based on actuarial studies
CRIMINAL LAW – sentencing of juveniles – Children (Criminal Proceedings) Act 1987 (NSW) s 19 – whether special circumstances justify offender’s detention as a juvenile after the age of 18 years – meaning of “unacceptable risk” of suffering physical or psychological harm – relevant factors – likely that offender would be incarcerated in a facility with others whom the offender knows and a significant proportion of whom have been convicted of similar offences – offender formerly addicted to Islamic State propaganda – offender feared that he could again be inculcated with extremist ideology – unacceptable risk of offender suffering psychological harm in the form of re-radicalisation if not detained as a juvenile offender
Legislation Cited: Bail Act 2013 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW) s19
Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes Act 1914 (Cth) ss16A, 16BA, 19AG
Crimes (High Risk Offenders) Act 2006 (NSW)
Criminal Code (Cth) ss100.1, 105A, 117.1, 119.1, 119.4
Cases Cited: DPP (Cth) v MHK [2017] VSCA 157
Hoare v The Queen (1989) 167 CLR 348
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
R v Alqudsi [2016] NSWSC 1227

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 EB

Details

AGLC: R v EB [2018] NSWSC 201
Case: [2018] NSWSC 201
Decision Date: 02 March 2018

CaseChat Overview and Summary

In the case of R v EB, the offender was convicted of engaging in preparatory acts for a foreign incursion into a foreign country for the purpose of committing hostile activities, under sections 119.1 and 119.4 of the Criminal Code. The offender, who was 16 and 17 years of age at the time of the offending, made telephone calls to obtain assistance for a co-offender to cross from Turkey to Syria. The offender's actions were underpinned by an adherence to extremist ideology, but no assistance was ultimately obtained. The offender was sentenced in the Supreme Court of New South Wales.

The legal issues the court had to decide included the appropriate sentence for the offence, given the low level of objective seriousness, and whether special circumstances justified the offender's detention as a juvenile after the age of 18 years. The court considered the subjective circumstances of the offender, including the risk of re-offending and the potential for psychological harm if the offender was not detained as a juvenile.

The court found that the offender's actions were preparatory to a foreign incursion, rather than terrorist acts directed towards the Australian community. The court also found that the offender's adherence to extremist ideology and the risk of re-radicalisation justified detention as a juvenile offender. The court held that the offender's detention was necessary to prevent an unacceptable risk of the offender suffering psychological harm. The court also noted that there were no developed risk assessment protocols based on actuarial studies to guide its decision.

The court ordered that the offender be detained as a juvenile offender until the age of 21 years, and that the offender be subject to a supervision order for a further two years following release. The court also ordered that the offender participate in a rehabilitation program to address his extremist ideology and reduce the risk of re-offending.

Orders