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R v Elmir (No. 3)

R v Elmir (No. 3)

Case [2019] NSWSC 1040 16 August 2019

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Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Elmir (No. 3) [2019] NSWSC 1040
Hearing dates: 28 June 2019
Date of orders: 16 August 2019
Decision date: 16 August 2019
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
For the offence of committing acts in preparation for incursions into a foreign country for the purpose of engaging in hostile activities, contrary to s 119.4(1) of the Criminal Code (Cth), the offender is sentenced to imprisonment for five years and five months commencing on 22 April 2017 and expiring on 21 September 2022 with a non-parole period of four years and one month expiring 21 May 2021

Catchwords:
CRIMINAL LAW – sentence – foreign incursion offence – offender pleaded guilty on first day of trial to an offence against s 119.4 Criminal Code (Cth) – offender committed acts in preparation for incursion into a foreign country for the purpose of engaging in hostile activities – offender travelled to Turkey with the intention of crossing into Syria – stayed in an Islamic State safe house in Turkey – sought assistance to cross into Syria and to make contact with persons associated with IS – obtained military equipment – offender ultimately deported from Turkey back to Australia and subsequently arrested – offender had taken serious steps in the commission of the offence – accumulation of military equipment suggested intent to take an active part in hostilities – offender’s contacts and connections in Turkey demonstrated at least a moderate degree of planning – offending fell slightly below the mid-range of objective seriousness – whether the offender had changed his extreme views – where the offender did not give evidence at the sentence hearing – where the offender refused to stand – available evidence did not suggest that the offender had changed his views – assessment of remorse and prospects of rehabilitation and reoffending – where a letter from the offender expressing regret was provided to the Court – without evidence from the offender that was capable of being tested the Court did not find remorse – prospects of rehabilitation only fair – offender’s criminal antecedents afforded him no leniency – regard had to both general and specific deterrence – discount given for guilty plea
SENTENCING – backdating of sentence – following arrest in 2016 the offender has been remanded in custody awaiting trial – whilst in custody the offender was convicted of assaulting two corrective services officers – sentenced to 8 months’ and 6 months’ imprisonment to be served concurrently – whether the time served for those assault offences should be included in the period of pre-trial custody for the present offence – s 16E Crimes Act 1914 (Cth) and ss 24 and 47 Crimes (Sentencing Procedure) Act 1999 (NSW) – issue to be resolved applying the principle of totality – adjustment made to the commencement date to take into account the sentence imposed for the assault offences
Legislation Cited:
Crimes Act 1900 (NSW) s 60A
Crimes…

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 Elmir (No. 3)

Details

AGLC: Decision restricted [2019] NSWSC 1040
Case: [2019] NSWSC 1040
Decision Date: 16 August 2019

CaseChat Overview and Summary

The case before the court involved an individual who pleaded guilty to an offence under section 119.4 of the Criminal Code, which pertains to foreign incursion offences. The offender had taken significant steps towards committing an act of hostile engagement by travelling to Turkey with the intention of crossing into Syria. During his stay in Turkey, the offender sought assistance to enter Syria and to make contact with individuals associated with the Islamic State. He also acquired military equipment, indicating a serious intent to participate in hostilities. Despite being deported back to Australia and subsequently arrested, the offender did not provide evidence at the sentencing hearing that could be tested to demonstrate a change in his extreme views. The court also considered the offender's prospects for rehabilitation and the need for general and specific deterrence in determining the appropriate sentence.

The court was required to address several key legal issues. Firstly, it had to assess the seriousness of the offence and the offender's intent, given the steps taken towards committing the offence and the evidence of planning. Secondly, the court needed to evaluate the offender's prospects of rehabilitation and the likelihood of reoffending, particularly in the absence of direct evidence from the offender himself. The court also had to consider the principle of totality in relation to the time the offender had already served in custody for other offences, to ensure that the sentence imposed for the present offence did not overlap with time already served for other convictions. Finally, the court had to decide on the appropriate sentence, taking into account the offender's criminal history, the need for deterrence, and the discount for the offender's guilty plea.

In its reasoning, the court found that the offender had taken serious steps towards committing the offence, including acquiring military equipment and seeking assistance to cross into Syria. The court considered that the offence fell slightly below the mid-range of objective seriousness. Despite the offender's expression of regret in a letter provided to the court, the absence of direct evidence from the offender that could be tested meant the court could not find that the offender had shown genuine remorse. The prospects for rehabilitation were deemed only fair, and the offender's criminal antecedents were not considered to warrant any leniency. The court gave regard to both general and specific deterrence but also applied a discount for the offender's early guilty plea. Additionally, the court adjusted the commencement date of the sentence to account for the time the offender had already served for other offences, in line with the principle of totality.

The court ordered that the offender be sentenced to a term of imprisonment, with the commencement date adjusted to include the time already served for the assault offences. The precise details of the sentence, including the length of imprisonment, were not specified in the provided text.

Orders