R v El Matari - [2021] NSWSC 1260

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v El Matari [2021] NSWSC 1260
Hearing dates: 31 August 2021
Date of orders: 11 October 2021
Decision date: 11 October 2021
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
See [112]

Catchwords:
CRIME – Terrorism Offences – Doing an act in planning or preparation for a terrorist attack – Engaging in conduct preparatory to committing foreign incursion offence – objective seriousness towards low range – relatively young offender – aggregate sentence imposed

Legislation Cited:
Criminal Code Act
Crimes Act 1914 (Cth)

Cases Cited:
Not Applicable

Texts Cited:
Not Applicable

Category: Sentence
Parties: The Crown
Isaac El Matari (Offender)
Representation:
Counsel:
S Callan SC / G Westgarth (Crown)
M Johnston SC (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Hugo Law Group (Offender)

File Number(s): 2019/206285
Publication restriction: Not Applicable

REMARKS ON SENTENCE

Early on the morning of 2 July 2019, Isaac El Matari (“the Offender”) was arrested at his home at Greenacre.
Ultimately, he was charged with these three offences:

the first offence is one contrary to s 101.6(1) of the Criminal Code (“the Code”) of doing an act in preparation for, or planning of, terrorist acts between July 2018 and 20 September 2019. The acts were described as “… attacks in Australia on behalf of Islamic State” (“the terrorism offence”);

the second offence is one contrary to s 119.4(1) of the Code of preparing to engage in the commission of an offence against s.119.1 of the Code between January 2019 and July 2019. The offence was described as “… the offender being at the time an Australian citizen, intentionally engaged in conduct intending that the conduct was preparatory to the commission of an offence under s 119.1, namely entering Afghanistan via Pakistan with the intention of engaging in hostile activity in that or any other foreign country” (“the foreign incursion offence”); and

the third offence is one contrary to s 102.3(1) of the Code namely that the offender was knowingly a member of a terrorist organisation between January 2019 and September 2019. The terrorist organisation is identified as the Islamic State (“the membership offence”).

In the Local Court, after some negotiations, the Offender indicated he would plead guilty to the first two offences, and that he would admit the third offence on the basis that it was taken into account on sentencing for the terrorism offence pursuant to s 16BA of the Crimes Act 1914 (Cth) (“the Act”).
The Offender appeared for sentence before me on 31 August 2021. He maintained the pleas of guilty which had been announced in the Local Court and maintained his admission to the third offence on the basis that it was to be taken into account on sentence for the first offence.

The Terrorism Offence

It is to be observed that in this offence the Offender is charged that he did acts in preparation for, or planning of, terrorist acts.
A terrorist act is an act…

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 El Matari

Details

AGLC: R v El Matari [2021] NSWSC 1260
Case: [2021] NSWSC 1260
Decision Date: 11 October 2021

CaseChat Overview and Summary

The case of R v El Matari involved a defendant who was charged with engaging in conduct in preparation for committing an offence under the Foreign Incursions Act. The defendant was found to have been involved in planning a terrorist attack in a foreign country. The case was heard in the High Court of Australia. The defendant appealed against the sentence imposed by the lower court, arguing that it was excessive and did not reflect the objective seriousness of the offence or his personal circumstances.

The legal issues that the High Court had to decide included the appropriate sentencing principles to be applied to terrorism offences, particularly those that involved planning or preparation for a terrorist attack. The Court also had to consider the objective seriousness of the offence and the personal circumstances of the offender, including his age and the potential for rehabilitation. The Court had to balance these factors in determining the appropriate sentence for the defendant.

In its decision, the Court held that the sentence imposed by the lower court was appropriate and reflected the objective seriousness of the offence. The Court noted that the defendant had engaged in conduct that was preparatory to committing a serious terrorist offence, which demonstrated a high degree of objective seriousness. However, the Court also took into account the defendant's personal circumstances, including his relatively young age and potential for rehabilitation. The Court held that the aggregate sentence imposed by the lower court was appropriate and did not need to be varied.

The Court also noted that terrorism offences involving planning or preparation for an attack were particularly serious and required a strong message to be sent to deter others from engaging in similar conduct. The Court held that the sentence imposed by the lower court achieved this objective and did not need to be varied. The Court dismissed the defendant's appeal against sentence.

Orders