R v G, H

Case [2019] SASCFC 71

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v G, H

[2019] SASCFC 71

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Doyle and The Honourable Justice Hughes)

27 June 2019

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT

On 24 September 2018, a jury found the appellant not guilty by reason of mental impairment of four counts of advocating terrorism contrary to s 80.2C(1) of the Criminal Code Act 1995 (Cth). A Judge of the District Court ordered the appellant be detained in safe custody in a prison for a period of three years pursuant to s 20BJ of the Crimes Act 1914 (Cth).

The appellant contends that the obligation under s 20BJ to fix a period of detention “not exceeding the maximum period of imprisonment that could have been imposed” creates an obligation on the court to devise a notional sentence as if the appellant had been convicted of the charges, based on ordinary sentencing principles. The appellant submits that this notional sentence then acts as the maximum period referred to in s 20BJ. The appellant submits that the Judge’s reasons revealed no such task had been undertaken and that the process error enlivened a right in the appellant to have the discretion re-exercised.

Held per Hughes J (Peek and Doyle JJ agreeing):

1. The Judge erred in failing to devise a notional sentence having regard to ordinary sentencing principles when setting the period of detention pursuant to s 20BJ of the Crimes Act 1914 (Cth).

2.  The sentence that would have been imposed in accordance with ordinary sentencing principles informs the court’s consideration of the appropriate period of detention.

3. The “maximum period of imprisonment that could have been imposed” contemplated by s 20BJ of the Crimes Act 1914 (Cth) refers to the legislatively prescribed maximum period of imprisonment for the relevant offence(s).

4.  While the identified process error entitles the appellant to a fresh consideration of the period of detention, the exercise of that discretion would result in the same or a greater period of detention. Accordingly, the appeal is dismissed.

Crimes Act 1914 (Cth) s 20BJ, s 20BK, s 20BL; Criminal Law Consolidation Act 1935 s 269O; Mental Health (Criminal Procedure) Act 1990 (NSW) s 21, s 23; Acts Interpretation Act 1915 (SA) s 19; Criminal Code Act 1995 (Cth) s 80.2C, referred to.
R v Goodfellow (1994) 33 NSWLR 308; Kentwell v The Queen (2014) 252 CLR 601; R v Behari (2011) 110 SASR 147; House v The King [1936] HCA 40; (1936) 55 CLR 499; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; R v T (1999) 75 SASR 235; R v Monks [2019] SASCFC 47; Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251; R v Draoui (2008) 101 SASR 267; Veen v The Queen (1979)…

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R v G, H [2019] SASCFC 71
Case
[2019] SASCFC 71
Decision Date

CaseChat Overview and Summary

The appellant, R v G, H, appealed to the Full Court of the Supreme Court of South Australia against convictions for offences related to inciting violence. The dispute centred on the interpretation and application of the relevant criminal provisions to the appellant's conduct, which involved uploading a video to Facebook inciting violence against Jewish individuals and threatening attacks on Palestinian Authority figures. The appellant had a history of mental health issues and was subject to a supervision order at the time of the alleged offences.

The primary legal issues before the Court concerned the interpretation of the elements of the offences charged, particularly the requirement for an "action or threat of action involving a physical attack" and the intention to advance a political, religious, or ideological cause. The Court was also required to consider whether the appellant's conduct, as depicted in the video and described in the particulars of the charges, met these statutory requirements. The appellant's mental state and the impact of his prior supervision order were also implicitly relevant to the context of the charges.

The Court analysed the wording of the charges, which alleged an "action or threat of action involving a physical attack" with the intention of advancing a political, religious, or ideological cause. The Court considered the nature of the appellant's statements in the video, which explicitly called for violence against Jewish individuals and threatened attacks on specific Palestinian Authority figures. The Court found that the appellant's pronouncements constituted a "threat of action" and that the stated intention to liberate the Palestinian people satisfied the requirement of advancing a political, religious, or ideological cause. The Court's reasoning focused on the plain meaning of the statutory language and the clear intent expressed by the appellant in his online communication.

Orders

Orders of the court

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Background

Background to the litigation

Permission was granted in respect of grounds 2 and 4. At the hearing, the appellant renewed his application for permission for grounds 1 and 3. Grounds 1 and 2 were then argued together as different approaches to the same complaint, and will be addressed together in these reasons. Ground 3 was not pursued in any detail. Factual background The appellant is a 51 year old man who in 2015 lived in the suburb of Flinders Park with his wife. On 3 November 2015, South Australian Police were alerted to a video posted to a Facebook page in the name of Ibrahim Ali. Investigators identified the person speaking to camera in the video to be the appellant. Later that day, police attended at the appellant’s home and spoke to him. The following day, the appellant was detained under the Mental Health Act 2009 (SA) and taken to hospital for assessment. A search warrant executed at the appellant’s home resulted in the seizure of electronic devices, knives, a tomahawk and a chainsaw. The appellant had ownership and control of the Ibrahim Ali Facebook page and a Facebook page in the name Commander HG. From subsequent investigations, four charges were laid. At the time of the conduct, the appellant was subject to a supervision order issued on 29 May 2012 under Part 8A of the CLCA with a limiting term of 4 years, having been found not guilty by reason of mental incompetence of Deception, Theft and Intentionally Create a False Belief that an offence has been committed, and breach of bail. The video that formed the basis of count 1 of the subject charges was uploaded to the Ibrahim Ali page and viewed more than 19,000 times. It depicted the appellant speaking in Arabic and holding a carving knife and a tomahawk. The video lasts for approximately eight minutes. The appellant appeals to “Arab-Israelis” to perform specified acts of violence on Jewish individuals encountered in the street. This conduct was described in the particulars as “an action or threat of action involving a physical attack on a Jewish person with the intention of advancing a political, religious or ideological cause, namely the liberation of the Palestinian people, and with the intention of either coercing, or influencing by intimidation, the Government of a foreign country or intimidating the public or a section of the public, in circumstances where the action, if carried out, would cause serious physical harm to a person, or cause a person’s death, or endanger a person’s life or create a serious risk to the health or safety of the public or a section of the public”. Count 2 concerned conduct the particulars of which were that the appellant’s conduct was “an action or threat of action involving a physical attack on Mahmoud Abbas or a member of the armed forces of the Palestinian National Authority, with the intention of advancing a political, religious or ideological cause, namely the liberation of the Palestinian people, and with the intention of either coercing, or influencing by intimidation, the Government of a foreign country or intimidating the public or a section of the public, in circumstances where the action, if carried out, would cause serious physical harm to a person, or cause a person’s death, or endanger a person’s life or create a serious risk to the health or safety of the public or a section of the public”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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