R v G, H - [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) 143 CLR 458; Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; (2010) 26 VR 477; R v Draoui [2015] SASCFC 50; (2015) 122 SASR 360; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520; Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; V Faheem Khalid Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470; R v A [2016] SASCFC 66, considered.

R v G, H
[2019] SASCFC 71
Court of Criminal Appeal: Peek, Doyle and Hughes JJ

PEEK J: I would dismiss the appeal. I have read and agree with the reasons of each of Doyle J and Hughes J.
That would usually be all that needed to be said. However, as is evident from both sets of reasons, there is involved here an identification and discussion of at least the possibility of some differences of approach taken in relevant authorities. Such matters may be again discussed in the future, at which time the sets of reasons in the present case may also be under consideration, and I therefore add that if there is thought to be a difference between the approaches of Doyle J and Hughes J, I concur with the judgment of Doyle J.
DOYLE J: I have had the opportunity of reading the reasons of Hughes J in draft. I gratefully adopt her summary of the facts and circumstances relevant to this appeal.
I agree with her Honour that the Judge below fell into process error in his approach to the task of setting a period of detention in safe custody under s 20BJ(1) of the Crimes Act 1914 (Cth). His Honour did so by failing to have regard to ordinary sentencing principles when setting that period of detention. While not necessarily determinative of the period of detention, those principles were relevant considerations. That is the effect of the decision of the New South Wales Court of Appeal in R v Goodfellow.[1] That decision should be followed, not least as a matter of comity given that it was concerned with the approach to be taken under Commonwealth legislation.
[1] R v Goodfellow (1994) 33 NSWLR 308.
However, I also agree with her Honour’s reasons for concluding that the appeal should ultimately be dismissed on the basis contemplated by the High Court in Kentwell v The Queen.[2] In other words, while the process error identified in the preceding paragraph entitles the appellant to a fresh consideration of his period of detention by this Court, I am satisfied that the exercise of that discretion would result in the same or a greater period of detention.
[2] Kentwell v The Queen (2014) 252 CLR 601 at [43].
While my views as to the precise nature of the role that ordinary sentencing principles play in the context of setting a period of detention under s 20BJ(1) in light of R v Goodfellow, are similar to those articulated by Hughes J, I propose to set out my reasons in relation to this aspect of the appeal.
In setting a period of detention under s 20BJ(1), the starting point is, of course, the terms of that section:
Where a person has been charged with a federal offence on indictment and the person is acquitted because of mental illness at the time of the offence, the court must order that the person be detained in safe custody in prison or in a hospital for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged. (emphasis added)
In my view, the maximum period referred to in the italicised words is the legislatively prescribed maximum period of imprisonment for the relevant offence(s) (the legislative maximum). For the reasons elaborated upon below, I do not think it is a reference to a period of imprisonment that could have (let alone would have) been imposed having regard to the particular circumstances of the relevant offender and offence(s).
On this construction of s 20BJ(1), the legislative maximum thus sets the ceiling for the period of detention to be ordered. The period of detention cannot exceed the ceiling set by the legislative maximum.
The section does not provide any other express guidance as to how the court should arrive at an appropriate period of detention. However, in accordance with the reasons of the Court in R v Goodfellow, the sentence that would have been imposed in accordance with ordinary sentencing principles will inform the court’s consideration of the appropriate period of detention.
The Court in that case contrasted s 20BJ of the Crimes Act with the equivalent provision under the New South Wales legislation governing the detention of persons found not fit to plead (but who have been found in a special hearing to have committed the offence charged). Under that legislation the court must nominate a period, known as a “limiting term”, which represents “the best estimate of the sentence which would have been appropriate in those circumstances”.[3] The Court held that while the period of detention under the Crimes Act was not expressly determined by any consideration or estimate of the sentence that would have been imposed had the person been found guilty in the ordinary course, the relevance of this (hypothetical) sentence was nevertheless an implicit assumption within s 20BJ(1).
[3] Mental Health (Criminal Procedure) Act 1990 (NSW), ss 21-23.
Hunt CJ at CL (with whom Blanch J agreed) explained:[4]
The policy question which must first be decided is whether the intention of the legislature was that the length of the detention period should be fixed as such an estimate… No assistance as to the intention of the legislature can be gained from either the Explanatory Memorandum or either of the Second Reading Speeches. The absence of any reference in the statute to some other criterion for fixing the length of the detention period suggests to me that the only logical approach available is to fix that period by reference to the sentence which would have been imposed if the person had been found guilty – and this notwithstanding the departure by the draftsman of s 20BJ in this regard from its apparent model in the State Act… Such an approach would necessarily exclude any account being taken of that person’s mental illness or any state of mind aggravated by that mental illness.
[4] R v Goodfellow (1994) 33 NSWLR 308 at 311 (emphasis added).
The reasoning of Hunt CJ at CL thus contemplates a two stage approach. The first stage involves identifying the legislative maximum for the relevant offence(s). In accordance with the express terms of s 20BJ(1), this legislative maximum operates as a ceiling that the period of detention in safe custody cannot exceed. The second stage involves consideration of the sentence that the defendant would have received had he or she been found guilty (but excluding consideration of their mental illness) (the hypothetical sentence). The period of detention is then fixed “by reference to” the hypothetical sentence. The hypothetical sentence thus informs, and indeed provides an indicator or guide to, the appropriate period of detention.
Allen J agreed generally with Hunt CJ at CL, but added some observations of his own in relation the approach to s 20BJ(1). His Honour said:[5]
On what basis or bases is a court required by that section to fix the period of safe custody to determine what the period should be? The only guidance given is that the period so fixed must be one ‘not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged”. What is the policy implicit in that laconic restriction? I can see none other than a person who has committed what would have been a crime but for his mental illness (criminal conduct) should not be kept in custody upon it being found that he has so acted (that is upon him being found not guilty on the ground of mental illness) for longer than the sentence which would have been imposed had he been found guilty… Accordingly, the period of safe custody determined in respect of the criminal conduct must not exceed the maximum period of imprisonment that could have been imposed if the person had been convicted.
Pursuant to the guidance, so understood, given by s 20BJ(1) the task of the court in determining a period of safe custody is to determine what, in the light of the maximum imprisonment provided by the legislature for the relevant offence, is the period of imprisonment which would have been appropriate by way of sentence had he been found guilty. As Hunt CJ at CL has indicated no account should be taken for that purpose, of the person’s mental illness or any state of mind aggravated by it. The period which would be the period of the imprisonment becomes the period of the safe custody to be specified by the court.
[5] R v Goodfellow (1994) 33 NSWLR 308 at 313 (emphasis added).
There is a potential ambiguity in the reasoning of Allen J. On one reading of the above passage, his Honour appeared to contemplate the hypothetical sentence operating as a maximum or ceiling for the period of detention, rather than as an indicator or guide to the period of detention to be imposed. In R v Robinson,[6] Kellam J appears to have interpreted Allen J’s reasons in this way, and to have adopted this approach.
[6] R v Robinson (2004) 11 VR 165 at [23], [33].
To the extent that this is how the reasons of Allen J in R v Goodfellow are to be understood, it is not clear to me whether his Honour’s use of the hypothetical sentence as a ceiling is by reason of it being the ceiling described in the concluding words of s 20BJ(1), or by reason of it being an implicit or assumed ceiling.
If the former, I have difficulty reconciling it with the language of s 20BJ(1). The concluding words of that section describe the ceiling which the period of detention is not to exceed in terms of “the maximum period of imprisonment that could have been imposed” (my emphasis). In my view, this ceiling is better understood as being the legislative maximum. This is accurately described as a “maximum” sentence that “could” have been imposed. The hypothetical sentence, on the other hand, is better described as the period of imprisonment that “would” have been imposed, rather than the sentence that “could” have been imposed. And, perhaps more significantly, the hypothetical sentence is better understood as “the sentence” that would have been imposed, rather than the “maximum” that could have been imposed. That would be so unless the hypothetical sentence were to be understood as the highest or longest sentence that the judge might reasonably have imposed in the circumstances of the particular offender and offence(s) (rather than simply “the sentence” that the judge would have imposed). I do not think the words of s 20BJ(1) should be understood in this way.
On the other hand, to the extent that Allen J approached s 20BJ(1) on the basis that it expressly provided a ceiling by reference to the legislative maximum, but also implicitly assumed a (second) ceiling by reference to the hypothetical sentence, I see no textual or policy basis for this implication. I accept, as Hunt CJ at CL did, that the reference to the legislative maximum in the section is a basis for recognising an implicit assumption as to the relevance of the hypothetical sentence. But I see no basis for it performing the role of a ceiling upon the period of detention, as opposed to it operating as an indicator or guide to the appropriate period of detention.
But in any event, I am not ultimately satisfied that Allen J intended the hypothetical sentence to operate as a ceiling. In my view, the concluding words in the passage from his reasons extracted above, which I have italicised, make it tolerably clear that his Honour intended an approach that involved use of the hypothetical sentence as a guide to, or indicator of, the period of detention to be imposed; and not merely as a ceiling upon that period of detention. This is inherent in his Honour’s statement that the hypothetical sentence “becomes” the period of detention in safe custody to be specified by the court. That suggests an equivalence between the hypothetical sentence and the period of detention; not merely that the former is a ceiling upon the latter.
In any event, to the extent that the reasons of Allen J in R v Goodfellow or Kellam J in R v Robinson suggest a different approach, I would follow the approach of the majority in R v Goodfellow, as summarised by me above. I would do so not only as a matter of judicial comity between respective intermediate appellate courts in relation to a piece of Commonwealth legislation, but also because I consider it a preferable approach.
As it happens, the approach of the majority in R v Goodfellow, and the relevance it attaches to the hypothetical sentence, is closely reflected in the express wording of s 269O(2) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). That section provides:
(2) If a court makes a supervision order, the court must fix a term (a limiting term) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court’s opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established.¹
Note – 1. The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant’s mental impairment.
Thus, under both s 20BJ(1) of the Crimes Act and s 269O(2) of the CLCA, the Court is required to fix the term by reference to the hypothetical sentence, with that hypothetical sentence determined without taking account of the defendant’s mental illness or impairment (including any state of mind aggravated by that mental illness or impairment).
It remains the case that the term of detention to be imposed under s 20BJ(1) is not a sentence. However, because the court is required to determine the period of detention by reference to the hypothetical sentence that would have been imposed, the court will thus be required to undertake something akin to the ordinary sentencing process before arriving at an appropriate period of detention.
I accept that the process need not replicate in precise terms that which would apply when imposing a sentence. This Court has said as much in the context of setting a term under s 269O(2) of the CLCA, observing that the court may not be required to engage in exactly the same process.[7] However, the sentencing judge will be required to at least have regard to the general principles governing this process.
[7] R v T (1999) 75 SASR 235 at [43].
I also accept that s 20BJ(1) does not necessarily require precise numerical equivalence between the hypothetical sentence that would have been imposed and the term of detention. A difference might emerge, for example, because of the significance that protection of the community might assume under the latter in a particular case. For this reason, I also do not think it will always be necessary under s 20BJ(1) for the sentencing judge to expose in precise numerical terms the hypothetical sentence that would have been imposed. It will be sufficient that the sentencing judge go through the process of considering, in accordance with ordinary sentencing principles, the sentence that he or she would have imposed, and that the judge’s reasons or remarks make it plain that he or she has undertaken this process, and has then set a term of detention having had regard to the outcome of this process. The level of detail that this might require will depend very much upon the circumstances of the particular case.
I acknowledge that the task of determining the hypothetical sentence will not always be an easy one. Given the varying ways in which a person’s mental illness may be relevant to an application of ordinary sentencing principles,[8] the removal of this consideration from the process will often result in a difficult, if not artificial, exercise. In R v Robinson,[9] Kellam J identified some of the difficulties that will arise. Several decisions of this Court have also identified and considered some of the equivalent difficulties arising in the context of setting limiting terms under s 269O(2).[10] In R v Behari,[11] Kourakis J (as he then was) said the following in relation to the hypothetical sentencing exercise contemplated by s 269O(2):[12]
The exercise required by s 269O(2) of the Act is problematic for several reasons. The limiting term is not a sentence. However, it is nonetheless to be fixed by reference to a hypothetical sentencing exercise. Moreover, the hypothetical sentencing exercise is one, which the note to s 269O of the Act observes, is to be undertaken ‘without taking account of the defendant’s mental impairment’. Notes do not form part of an Act.[13] Nonetheless, the nature and parameters of the power I must exercise can be discerned with sufficient clarity from its statutory context.
…
The third aspect of the statutory context to which I refer is the very nature of supervision orders and limiting terms. They are prophylactic and remedial in nature. The tension which arises when sentencing persons with mental impairments under the criminal law between the mitigating effect of their diminished responsibility on the one hand and the increased need for community protection on the other[14] is ameliorated by fixing a limiting terms because the Act allows for release into the community on licence and ultimately discharge when there is no longer any risk to the community. Those options are not available under criminal sentencing regimes.
It follows, in my view, that in fixing a limiting term the court must proceed as if it is sentencing for an offence constituted by the objective elements it has found but where it has been left in ignorance of the mental state of the accused. It can neither reduce the limiting term by reason of diminished responsibility nor increase it by reason of callous premeditation or disregard for the suffering of victims. It that way, fixing a limiting term will not be plagued by the difficulty of ascertaining the relevant guilty mental state to which I have referred nor will the period during which the psychiatric care is provided be reduced on account of diminished responsibility arising out of the very mental condition which requires treatment.
[8] Recently summarised in R v Monks [2019] SASCFC 47 at [32]-[59].
[9] R v Robinson (2004) 11 VR 165 at [25].
[10] Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251; R v Draoui (2008) 101 SASR 267.
[11] R v Behari (2011) 110 SASR 147.
[12] R v Behari (2011) 110 SASC 147 at [9]-[14].
[13] Acts Interpretation Act 1915 (SA), s19.
[14] Veen v The Queen (1979) 143 CLR 458.

Returning to the case at hand, it would appear that the Judge below did not have regard to the hypothetical sentence that would have been imposed had the appellant pleaded guilty. His Honour did make some observations as to the objective seriousness of the offending, as well the need to ensure community safety. However, his Honour did not make any express reference to any of the usual sentencing principles – including, for example, the extent to which the offences might have resulted in concurrent sentences. Nor did his Honour ever mention that he had had regard to the hypothetical sentence that he would have imposed.
The appellant emphasised that, in the course of submissions before the Judge below, his Honour had suggested that he did not consider that ordinary sentencing principles had much or any scope for application in the present context. While I am conscious that observations made arguendo do not form part of the Judge’s sentencing remarks, those observations nevertheless require caution before assuming or inferring that the Judge had reference to these principles despite not referring to them in his reasons or remarks.
Having read his Honour’s remarks as a whole, I am not satisfied that his Honour did engage with ordinary sentencing principles, let alone arrive at a hypothetical sentence, in the manner required by s 20BJ(1). It is for this reason that I have concluded that his Honour fell into process error in determining an appropriate period of detention under s 20BJ(1).
However, as I have earlier observed, for the reasons given by Hughes J, in exercising that relevant discretion afresh, and even taking into account the period already spent in custody, I would have imposed the same or greater period of detention.
In this respect, and in short, I agree with the observations of the Judge below and Hughes J as to the relative seriousness of the appellant’s conduct. I accept that the nature of the conduct was such that a significant measure of concurrency would have been appropriate, particularly between the sentences to be imposed for counts 1 and 2, and between the sentences to be imposed for counts 3 and 4. However, given the timing of counts 3 and 4 (being after the appellant was spoken to by the police in relation to counts 1 and 2), I would not have allowed any more than a modest measure of concurrency between the sentences for those counts and the sentences for the two earlier counts. I consider that an appropriate total (hypothetical) sentence would have involved a period of imprisonment of at least five years.
In determining a period of detention for the purposes of s 20BJ(1) by reference to this hypothetical sentence, I am satisfied that I would have arrived at a period of detention of at least the three year period set by the Judge below, even having regard (as is appropriate) to the 23 months that the appellant had already spent in custody prior to the Judge’s period of detention taking effect. Whether the appellant is ultimately to be released prior to the expiration of this period of detention will be a matter for the Attorney-General to determine, based upon the regular reviews of the appellant’s mental illness contemplated by the Crimes Act.
For these reasons, I agree with Hughes J that the appeal should be dismissed.
HUGHES J:
Introduction
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) (the ‘Code’).
The charges arose from four occasions on which the appellant had uploaded onto Facebook videos of himself speaking to camera urging acts of violence against Jewish people and others. The videos depicted the appellant advocating dangerous and violent behaviour towards others, whilst brandishing weapons such as a knife, a tomahawk, and a chainsaw. The videos were uploaded at various times over a five month period. At the relevant times, the appellant’s reasoning and actions were affected by mental illness that he has lived with for at least 20 years.
The alleged conduct amounted to the advocating of the doing of a terrorist act as defined within s 100.1 of the Code.
The trial was conducted in accordance with Part 8A of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) and on the basis of an Agreed Statement of Facts. Upon the return of the special verdict, the appellant’s circumstances fell to be considered by the Judge pursuant to s 20BJ of the Crimes Act 1914 (Cth) (‘Crimes Act’).
On 5 October 2018, the Judge ordered that the appellant be detained in safe custody in a prison for a period of three years from that date. He appeals that order.
Grounds of appeal
The appellant’s grounds of appeal assert:
1An error of law in the interpretation and application by the sentencing Judge of s 20BJ of the Crimes Act;
2An error of law in the application of s 20 BJ(1) in the calculation of the period of detention;
3An error of law in the application of s 20BJ(4) and (5) on the erroneous basis that conditions imposed under s 20BJ(5) are unenforceable; and
4That the period of detention was manifestly excessive taking into account:
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”.
The video that formed the basis of count 2 lasts for approximately 8 minutes and is directed to “the people of West Bank, Ramallah and everyone” and to “AAS in Ramallah”. The appellant commands the viewer in the West Bank to perform acts of violence with knives on Abbas and his army. It was an agreed fact that Ramallah is a Palestinian city in the West Bank and that Mahmoud Abbas was at the relevant time the President of the State of Palestine and Palestinian National Authority. It was posted at different times to each of the appellant’s Facebook pages and was viewed 558 times.
Count 3 alleged that the appellant engaged in conduct that was particularised as “an action or threat of action involving a physical attack on a Jewish person or Israeli soldier 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”.
The third video was viewed 2,600 times. The video depicts the appellant, speaking in Arabic and Hebrew, describing in florid terms the attendance by police on him at his home on 3 November 2015. The appellant is observed holding a large knife to his throat, gesturing that he will slaughter President Netanyahu.
Count 4 is particularised as conduct “an action or threat of action involving a physical attack on Mahmoud Abbas or soldier 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”.
The fourth video lasts for approximately four minutes, and in it the appellant encourages those watching the video to ‘pick up a knife, a knife in their hand’ and, referring to those affiliated with ABBAS, ‘to fuck him, to rip him apart, rip up his intestines … take out his intestines.’ Once again, the appellant is seen brandishing a large kitchen knife. The video was viewed 689 times within a week.
Whilst the precise dates on which three of the videos were uploaded was not established, they were uploaded over approximately five months. All of the conduct was committed whilst the appellant was subject to a four year order releasing him on licence subject to supervision under section 269O(1)(b)(ii) of the CLCA. The video that is the subject of count 3 was made and uploaded shortly after the police attended at the appellant’s premises to investigate counts 1 and 2, on 4 November 2015. The video that is the subject of count 4 was uploaded whilst the appellant was detained.
Two medical experts, Dr Furst and Dr Sullivan, assisted the trial court with its understanding of the appellant’s mental state. Dr Furst concluded in his report of 27 March 2018 that at the time of the offending the appellant was suffering from paranoid schizophrenia and was psychotic at the time of the relevant conduct as a result of not taking medication prescribed to him. Dr Furst was of the view that at the time of the offending the appellant did not know that the conduct was wrong as he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.
Dr Sullivan concluded in his report of 18 June 2018 that in 2015 the appellant was not compliant with his oral medication and suffered a relapse of psychosis. He concluded that at the time of creating and uploading the videos the appellant knew the nature and quality of his conduct but could not reason with a moderate degree of sense and composure about its wrongfulness due to his psychosis.
The trial occurred within a single day, the jury being unanimous in its verdict that the physical elements were proven on all counts and, after hearing the evidence with regard to the appellant’s mental state, and without retiring, found the appellant not guilty by reason of mental impairment on all four charges.
On the basis of the medical reports and an agreed statement of facts relevant to the appellant’s mental impairment, the Judge heard sentencing submissions on 27 September 2018 and made the order for the appellant to be detained in safe custody for a period of three years commencing from the date of the order, namely 5 October 2019.
Legislation
Division 7 of the Crimes Act contains the procedure for what is to occur when a person has been acquitted because of mental illness. That Division opens with s 20BJ of the Crimes Act which provides:
(1)Where a person has been charged with a federal offence on indictment and the person is acquitted because of mental illness at the time of the offence, the court must order that the person be detained in safe custody in prison or in a hospital for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged.
(2)…
(3)…
(4)Despite subsection (1), the court may, if in the court’s opinion it is more appropriate to do so than to make an order under subsection (1), order the person’s release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years.
(5)The conditions may include:
a.A condition that the person remain in the care of a responsible person nominated in the order; and
b.A condition that the person attend upon a person nominated, or at a place specified, in the order for assessment of the person’s mental illness, mental condition or intellectual disability and, where appropriate, for treatment.
(6)Where a person has been released from custody subject to conditions, the person or the Director of Public Prosecutions may, at any time, apply to the court to vary those conditions.
Where a person is detained in safe custody under s 20BJ(1), the Attorney-General (Cth) must, as soon as practicable, consider whether or not the person should be released from detention and must reconsider that question at six monthly intervals.[15] The Attorney-General may also order release from custody and such release may be on conditions.[16]
[15] Crimes Act s 20BK.
[16] Crimes Act s 20BL.
Sentencing Remarks
The Judge commenced his task with an examination of s 20BJ and its interaction with the other provisions in Division 7. His Honour noted that if the Attorney-General (Cth) were to release the respondent under s 20BL, such release could be attended with conditions and those conditions attracted associated powers of revocation. The powers conferred on the court, on the other hand, do not authorise the court to revoke conditional release and do not empower the court to bring a person to the court for non-compliance with a condition. Examining the contrasting outcomes, the Judge said:
This appears to be a deficiency in the legislation. If the court detains a person in safe custody, in a prison or hospital pursuant to s 20BJ(1), this brings into play a detailed scheme whereby the Attorney-General promptly and regularly reviews that detention. If the Attorney-General exercises the discretion to release a person upon conditions, there are provisions of the Crimes Act which provide for monitoring and enforcing those conditions, if necessary by way of revoking the conditional release and returning the person to safe custody.
The Judge proceeded to consider the expert medical evidence as well as the appellant’s history of mental illness and encounters with the courts, including encounters for conduct which, but for the mental illness, would have been addressed as serious criminal conduct for dishonesty and unlawful wounding. In analysing the conduct in relation to which the appellant was to be detained, his Honour said:
In the main, the videos could be described as bizarre rants. However, they certainly advocate dangerous and violent behaviour, including gesticulations [and] demonstrations, where he brandishes a knife, a tomahawk, and a chainsaw.
The Judge considered that the appellant’s behaviour had the capacity to influence susceptible individuals, impliedly rejecting defence counsel’s submission that the behaviour should be treated as being at the lower end of the spectrum of conduct constituting the offence of advocating terrorism. His Honour referred to the appellant’s non-compliance with prescribed medical treatment, including occasions when the appellant made rational choices to discontinue or avoid treatment.
The Judge proceeded to pose to himself the choice of determining whether the appellant should be detained in safe custody in prison or hospital on the one hand under s 20BJ(1) or to release him subject to conditions under s 20BJ(4). The Judge observed that the sorts of conditions that might be imposed if he were to adopt the recommendations of Dr Furst were incapable of being enforced because of the deficiency in the legislation earlier described. The Judge noted that if he detained the appellant in safe custody, the Attorney-General would be required to promptly consider whether to release the appellant on conditions, which conditions would be enforceable under the provisions of Division 7. He concluded that the protection afforded to the public by any conditions that the Court could impose would be, on the other hand, “totally illusory”. The appellant’s complaint that it was not open to the Judge to reject conditional release was not pressed on the appeal. In my view, the consideration of the legal effect of the order was available to the Judge as a consideration in his decision.
The Judge approached the task of setting the duration of the period of detention without express reference to the sentencing principles of proportionality or concurrency but by consideration of what was required to secure the safety of the community. Having directed himself to the statutory paramountcy of community safety, he ordered that the appellant be detained in safe custody in a prison for three years commencing forthwith.
Grounds 1 and 2 – what is required by s 20BJ(1) and whether a notional sentencing exercise is required
The appellant’s primary challenge was that the sentencing judge fell into error in failing to undertake a mandatory step in the task demanded by s 20BJ(1). The making of an order, it was argued, required a notional sentencing exercise applying those sentencing principles as are relevant to the fixing of a period of detention. The appellant submitted that the obligation 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 submitted 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.

The submission of the Director of Public Prosecutions (Cth) was that the exercise required of the sentencing judge, and which this Court ought to find occurred, entailed merely a calculation of the accumulated legislated maximum period of imprisonment for each count. The maximum penalty for the offence of advocating terrorism under s 80.2C of the Code is five years imprisonment. In this case, the result was to create a ceiling of 20 years that the order for detention was required not to exceed.
Section 20BJ(1) has its equivalent in s 269O(2) of the CLCA which provides:
(2) If a court makes a supervision order, the court must fix a term (a limiting term) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court's opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established^1.
Note— 1 The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant's mental impairment.
It is immediately apparent that unlike s 269O(2) of the CLCA, s 20BJ contains no express direction to the sentencing judge to undertake the exercise of determining the sentence that “would have been appropriate” if the person had not been found unfit to plead. It raises the question of whether s 20BJ should be read in that manner to achieve a common approach between the States and the Commonwealth in the making of orders for detention arising from mental unfitness, or whether the differences in the manner in which these equivalent provisions are expressed is intended to reflect divergent approaches.
Section 20BJ(1) was considered by the Court of Criminal Appeal in R v Goodfellow.[17] The Court commenced its analysis by observing that the provision equivalent to s 20BJ(1) in the NSW state legislation required the Court to nominate a limiting term representing the best estimate of the sentence which would have been imposed had the person been found guilty. Hunt CJ at CL, with whom Blanch J agreed, said: [18]
The policy question which must first be decided is whether the intention of the legislature was that the length of the detention period should be fixed as such an estimate… No assistance as to the intention of the legislature can be gained from either the Explanatory Memorandum or either of the Second Reading Speeches. The absence of any reference in the statute to some other criterion for fixing the length of the detention period suggest to me that that the only logical approach available is to fix that period by reference to the sentence which would have been imposed if the person had been found guilty – and this notwithstanding the departure by the draftsman of s 30 BJ in this regard from its apparent model in the State Act… Such an approach would necessarily exclude any account being taken of that person’s mental illness or any state of mind aggravated by that mental illness.
[17] (1994) 33 NSWLR 308.
[18] (1994) 33 NSWLR 308 at 311D (Hunt CJ at CL).
His Honour observed that the exercise of making an order under s 20BJ(1) was similar to the fixing of a period of detention under the NSW equivalent provision but that:[19]
The apparent difference in substance here is that the Commonwealth approach is not dictated expressly by any estimate of the sentence which would have been imposed if the person had been found guilty.
[19] (1994) 33 NSWLR 308 at 311F (Hunt CJ at CL).
The Court proceeded to consider whether or how the absence of remissions in NSW operated on the fixing of a period of detention, and whether detention orders in relation to more than one offence are to be accumulated.[20] As to the first of these questions, Hunt CJ at CL concluded that the task required by s 20BJ(1) was that the period of detention ought to be fixed by reference to the sentence which would have been imposed if the person had been found guilty, excluding any account being taken of the person’s mental illness. As to that being the first part of the task, Allen J agreed. His Honour said:^[21]
… the task of the court is to determine what, in the light of the maximum total imprisonment provided by the legislature for all those offences, would be the total imprisonment appropriate by way of sentence had he been found guilty.
[20] (1994) 33 NSWLR 308.
[21] (1994) 33 NSWLR 308 at 313E.
Some divergence of approach may then be detected in relation to the role of the notional sentence in the fixing of the period of detention. Hunt CJ at CL establishes two points of reference by which the period is fixed. The first is the legislative maximum for the relevant offending, which becomes the ceiling above which the period of detention must not exceed. The second is the notional sentence, which operates as a guide to, but not a determinant of, the appropriate period to be fixed. So much is evident from his Honour’s account of the task as being one of fixing the period by reference to the sentence which would have been imposed.
Allen J, though ultimately concurring with the majority as to the orders to be made, may be understood to have taken a slightly different approach. His Honour said: [22]
Pursuant to the guidance, so understood, given by s 20BJ(1) the task of the court in determining a period of safe custody is to determine what, in the light of the maximum imprisonment provided by the legislature for the relevant offence, is the period of imprisonment which would have been appropriate by way of sentence had he been found guilty. As Hunt CJ at CL has indicated no account should be taken for that purpose, of the person’ mental illness or any state of mind aggravated by it. The period which would be the period of imprisonment becomes the period of the safe custody to be specified by the court.
[22] (1994) 33 NSWLR 308 at 313D.
It would seem that, despite the apparent concurrence with the approach of Hunt CJ at CL, Allen J would treat the notional sentence as the ceiling above which the period of detention must not exceed, rather than a mere guide. His Honour further describes the period of detention as determined by the notional sentence later in the same paragraph, as follows:^[23]
… the total period of total imprisonment appropriate, in the light of the maximum provided by the legislature, by way of sentence is the period of the safe custody to be specified by the court.
[23] (1994) 33 NSWLR 308 at 313F.
The apparent divergence between Allen J and the majority as to whether the legislative maximum or the sentence created the ceiling that could not be exceeded had no practical effect on the facts of the case. The circumstances in that matter were described as being the “worst class of case” such that the jurisdictional maximum and the notional sentence that would have been imposed tended to coincide.[24]
[24] (1994) 33 NSWLR 308.
In R v Robinson,[25] the Supreme Court of Victoria was required to apply s 20BJ(1) in circumstances in which the jurisdictional maximum and the notional sentence did not yield the same result. The accused had attempted to hijack a Qantas plane whilst suffering psychotic delusions. In considering the task required by s 20BJ, Kellam J said:[26]
R v Goodfellow is authority for the proposition that an order of detention must not exceed the maximum period of imprisonment that could have been imposed if the person had been convicted of the offences charged. Looked at in this manner, R v Goodfellow clearly establishes that the maximum penalty which might have been imposed if the person had been convicted of the offences charged is a ceiling upon the limit of detention under the Act. I do not understand R v Goodfellow to be authority for the proposition that the maximum period of detention which may be ordered in the case with which I am concerned is life imprisonment but rather it is authority for the proposition that the length of the period of detention should be no more than the length of any sentence of imprisonment which would have been imposed in all the circumstances had Mr Robinson been found guilty.
[25] (2004) 11 VR 165.
[26] (2004) 11 VR 165 at 170 [23].
In following Goodfellow, Kellam J’s analysis appears to adopt Allen J’s approach without advancing the debate. Having regard to the different ends to which a period of detention imposed under s 20BJ and a sentence of imprisonment upon a finding of guilt are directed, I find that there is no policy basis for treating the notional sentence as a ceiling or determinant of the period of detention. The better approach is that which fits squarely with the words of the provision and the reasoning of the majority in Goodfellow, namely that the legislative maximum signals that which must not be exceeded and the notional sentence operates as a guide to the fixing of the period of detention.
Thus the task of the Court under s 20BJ(1) is to ascertain the maximum sentence that could be imposed without reference to the circumstances, such task being a purely arithmetical one directed at the statutory maximum. The court is further required to undertake a notional sentencing exercise to assist in fixing the period of detention.
The principle of comity of approach when considering Commonwealth provisions is relevant to this Court’s consideration of the authorities touching on the construction of s 20BJ.[27] In Director of Public Prosecutions (Cth) v D’Alessandro, the Victorian Court of Appeal (Harper JA, Redlich JA and Williams AJA agreeing) stated:[28]
When construing and applying Commonwealth legislation, this Court follows principles of comity in according respect to the decisions of intermediate appellate courts of other jurisdictions concerning the same legislation.
[27] (2004) 11 VR 165 at 169 [20]. The Court refers to R v Parsons [1983] 2 VR 499 at 506 and 509 and R v Gardiner [1981] Qd R 394.
[28] [2010] VSCA 60; (2010) 26 VR 477 at 483 [21].
I am satisfied that this Court can and should approach the exercise in a manner consistent with the decisions in Goodfellow and Robinson, as a matter of construction and of comity.
Did the process of fixing a period of detention miscarry?
The appellant submits that the Judge did not undertake or articulate the necessary notional sentencing process required on a proper construction of s 20BJ(1). The appellant contended that this constituted a process error or error of principle in the approach of the Judge to the exercise. The Judge said:
The critical issue in this matter is whether G,H should be detained in safe custody in prison or hospital, or whether it is more appropriate to order his release from custody subject to conditions.
His Honour was apparently focused upon two issues; whether there was a realistic basis upon which the appellant’s release might be contemplated when conditions attached to such release could not be enforced; and the paramountcy of the safety of the community. Whilst each is relevant to a notional sentencing exercise, these factors do not exhaust the relevant considerations in the fixing of a notional sentence and it cannot be concluded that such an exercise did in fact take place.
The ways in which an error of principle or process might occur were identified in House v The King[29] in the frequently-cited joint reasons of Dixon, Evatt and McTienan JJ. It was summarised by Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen as follows:^[30]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[29] [1936] HCA 40; (1936) 55 CLR 499.
[30] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 370-371 [25].
These principles apply to the role of the appeal court in reviewing the exercise of a discretion by an inferior court. The fixing of the period of detention entails such an exercise of discretion.[31] I conclude, for the reasons above, that an error occurred in the process of fixing the period of detention in this matter.
[31] R v Draoui [2015] SASCFC 50; (2015) 122 SASR 360 at 377 (per Blue J, Kelly and Bampton JJ agreeing).
Manifest excess
Ground 4 of the appellant’s grounds asserts manifest excess in the period of detention. The contention was particularised by reference to the Judge’s failure to properly apply s 20BJ(1), the failure to give credit for the 22 months the appellant had already been detained, and the failure to have regard to the evidence of Dr Furst.
The period imposed by the sentencing Judge was three years from the date of the order. The High Court observed in Hili v The Queen:[32]
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. (Citations omitted)
[32] [2010] HCA 45; (2010) 242 CLR 520 at 538-539 [59].
Mr Jolly for the appellant contended that the sentencing Judge failed to have regard to the time that the appellant has already spent in detention, the effect of which was to impose a period of detention of almost five years which was excessive to the extent of an error warranting intervention.
A period of detention in circumstances of unfitness to plead, and a sentence following conviction, are directed to different ends. Detention is primarily protective whereas a sentence is both protective and punitive.[33] It is less apt to refer to ‘time served’ or ‘credit’ in respect of detention. However, a period of detention already undertaken is relevant to the period required for the community’s safety. The extent of the relevance may be revealed by the medical evidence which may establish what is required to achieve the community’s safety. In the appellant’s case, it is relevant to refer to the period during which the appellant was in detention prior to the sentencing hearing, such period having been 23 months as that period bears on the consideration of the time required for detention for the community’s safety, either by incapacitation or by enabling the detainee to be treated.
[33] Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476.
It is appropriate to view the effective period imposed as being the total of that already spent in custody and the further period of 3 years, which together amounted to just under five years.
Re-exercise
Having determined that the process miscarried by the failure to undertake the intermediate sentencing exercise required by s 20BJ(1), it is appropriate to exercise the discretion afresh in accordance with Kentwell v The Queen.[34] This entails determining a notional sentence as if the appellant had been competent and applying the principles of proportionality, concurrency and totality as well as taking into account time already served.
[34] [2014] HCA 37; (2014) 252 CLR 601 at 618 (French CJ, Hayne, Bell and Keane JJ).
There is significant difficulty in determining a notional sentence for conduct such as that which the appellant undertook, but on the basis that it was conducted by a person equipped with the requisite mental competence. Kellam J observed that the seriousness of the offence of an attempt to hijack is highly dependent on the particular facts and it is an offence in relation to which the mental element of the alleged offending is likely to play a crucial factor in the determination of an appropriate sentence.[35] So too an offence of inciting terrorism. As Spieglman CJ pointed out in V Faheem Khalid Lodhi v R,[36] the sentencing task where the person is competent requires the attachment of severe consequences to acts preparatory to terrorism:[37]
The sentence imposed is a substantial one, particularly in view of the fact that there was no actual injury to persons or property. Nevertheless, as Price J emphasises, the provisions creating the offence are directed to preparatory acts and the seriousness with which Parliament regards such acts is manifest in the maximum penalty. By the extended range of conduct which is subject to criminal sanction, going well beyond conduct hitherto generally regarded as criminal, and by the maximum penalties provided, the Parliament has indicated that, in contemporary circumstances, the threat of terrorist activity, requires condign punishment.
[35] R v Robinson (2004) 11 VR 165 at 171.
[36] [2007] NSWCCA 360; (2007) 179 A Crim R 470.
[37] [2007] NSWCCA 360; (2007) 179 A Crim R 470 at 489 [79].
It is necessary to consider seriousness of the appellant’s conduct relative to the worst type of offending in its class. Counsel for the appellant at the sentencing hearing submitted that the conduct was at the lower end of seriousness of offending of the type on the basis that the “rambling” nature of the exhortations detracted from their seriousness. The Court was considering a translation of the appellant’s statements. Styles of address are affected by cultural norms. The Court had no evidence before it as to how the appellant’s addresses might have been received by those to whom it was directed and how apparent his mental illness was to those viewing the videos without the requirement of translation. This highlights the difficulty of the task for the Court in assessing the objective seriousness of the conduct without reference to the appellant’s impairment. It confirms that in this case and perhaps more widely, the notional sentencing element can and need only be achieved to a general degree of precision and does not require the fixing of a specific sentence.
Notwithstanding the caution expressed above, and taking into account the extent to which the videos were viewed, their length and offensive content including the use of weapons to demonstrate the crimes being urged, the directness and specificity of the exhortations to violence and the platform to which they were uploaded, I concur with the Judge’s characterisation of each of the counts as being towards the upper end of the range of seriousness for such offences.
The videos were uploaded over a period of approximately five months to two separate Facebook pages. There is some difference in the content and the cohort about whom the content is addressed and to whom the incitement is directed. However, there is a good deal of repetition in the conduct making up the four charges. In consideration of a notional sentence in respect of the four counts, the question of concurrency arises. In Goodfellow, Hunt CJ at CL determined that the term of the detention should represent the cumulative total sentence for all such offences in the case of multiple offences.[38] His Honour concluded:[39]
I can see no reason why such period may not represent the cumulative total of what would be appropriate to all such offences, in the same way that cumulative sentences may be imposed; no intention to the contrary appears, and such an interpretation, it seems to me, promotes the object underlying Div 7: Acts Interpretation act 1901(Cth), ss 15AA, 23.
[38] (1994) 33 NSWLR 308 at 311 (Hunt CJ).
[39] (1994) 33 NSWLR 308 at 311G (Hunt CJ).

In respect of the appellant’s conduct, there is a significant degree of overlap in the circumstances of the counts and, given the nature of the conduct, it is reasonable to conclude that such harm as was caused was not replicated on each occasion except insofar as different persons may have viewed individual videos. Accordingly, a degree of concurrency in the notional sentence is appropriate. However, such concurrency is only partial. Two of the videos were uploaded at a time following the appellant being spoken to by police including one during his detention. There is also the passage of several months between the first and last offence being committed. These are features of the conduct that militate against full concurrency of sentence with the earlier instances of conduct.
The principle of proportionality must also be applied. The sentence must not exceed that which is proportionate to the gravity of the conduct in order to achieve the protection of society from the risk of recidivism presented by the appellant.[40] However, the offence of inciting terrorism contemplates that it may not succeed in its objective. Further, as Spiegelman CJ stated in V Faheem Khalid Lodhi v Regina, the protection of the public in a case of this type is a factor to be considered in arriving at a proportionate sentence.[41]
[40] Veen v The Queen (1979) 143 CLR 458 per the majority at 467, 468, 482-483, 495.
[41] [2007] NSWCCA 360; (2007) 179 A Crim R 470 at 490 [87].
Taking those factors into account, an appropriate approach to the notional sentence is reached by the fixing of a period of 6 years imprisonment, being the cumulative total of 2.5 years each for counts 1 and 2, and 3.5 years each for the counts 3 and 4 which occurred in breach of bail conditions.
Where there are multiple charges, only one period of detention is required.[42] The period of detention will not necessarily mirror the notional sentence and is not drawn from those considerations relevant to the imposition of a sentence upon a person who is mentally competent. The protection of the community assumes the greatest significance in the fixing of the period of detention.
[42] (1994) 33 NSWLR 308 at 314 (Allen J).
The report of Dr Furst of 27 March 2018 confirms the diagnosis of long-standing paranoid schizophrenia spanning more than 30 years. That illness had led to offending in Israel and in Australia including offending back to 1998 that had led to supervision orders. The appellant has chronic delusions concerning the Arab/Israeli conflict and about a particular South Australian family, the Shahins. Dr Furst observed that whilst detained, the appellant had had a sustained period of medication and that accordingly, “his mental health was probably the best that it has been for many years”. Dr Furst proceeds to state that “the primary area of concern is the involvement of his wife in his avoidance of mental health care and alleged offending.” The appellant denied her involvement or her knowledge of the offending but police evidence of their intercepted telephone conversations indicated otherwise. Dr Furst said, “despite his assurances that he no longer has any beliefs about the Shahin family and associated delusions or desire to advocate for terrorism in Israel, he does have some residual chronic delusions and it is important that his wife helps to steer him away from these idea rather than colludes with his delusional beliefs…”. On 26 September 2018, Dr Furst provided an updated report. The appellant told Dr Furst that his wife had informed him that she was leaving him to return to the Czech Republic with their children to live. That report addresses in detail the conditions that a court might wish to impose upon the appellant if he were released on licence. Those conditions were directed at ensuring that the appellant was closely supervised, took prescribed medication and abstained from illicit substances. If those were imposed, Dr Furst thought that “there is a good chance that he will remain mentally well and pose a relatively low risk of re-offending.” As it emerged during the sentencing process, and is confirmed on appeal, those conditions if incorporated into any order for release, were incapable of being enforced.
The imposing of the period of detention share some but not all of the characteristics of sentencing. The effect must be “prophylactic and remedial in nature”.[43] The person’s subjective intent is irrelevant, but the safety of the community is paramount. I would impose a period of five years detention inclusive of the period that the appellant has already served. The period that I would impose is far from being “definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing Judge”.[44] The contention of manifest excess fails. Indeed, the period of detention that is reached after undertaking the process required by s 20J of the Crimes Act has the same or similar result to the order that was made, albeit expressed differently. The High Court in Kentwell v The Queen said:[45]
After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender's appeal and substitute a more severe sentence are likely to be rare. Were the Court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal (footnotes omitted).
[43] R v Behari [2011] SASC 111; (2011) 110 SASR 147 at 150 [13].
[44] R v A [2016] SASCFC 66 at 18 [64] (Blue J).
[45] [2014] HCA 37; (2014) 252 CLR 601 at 618 [43] (French CJ, Hayne, Bell and Keane JJ).
Having re-exercised the discretion and reached the view that a lesser period of detention than that imposed by the sentencing Judge is not warranted in law, it is not necessary to re-sentence the appellant.
Accordingly, I would dismiss the appeal.