Medium Neutral Citation: R v Ghazzawy [2017] NSWSC 474
Hearing dates: 26 April 2017
Date of orders: 08 May 2017
Decision date: 08 May 2017
Jurisdiction: Common Law
Before: Bellew J
Decision:
(1)    The offender is convicted.
(2)   The offender is sentenced to imprisonment for a period of 8 years and 6 months commencing on 15 December 2015 and expiring on 14 June 2024.
(3)   I specify a single non-parole period of 6 years and 4 months commencing on 15 December 2015 and expiring on 14 April 2022.

Catchwords:
CRIMINAL LAW – Offences – Sentence – Making documents connected with preparation for a terrorist act knowing of the connection – Where documents which were partly compiled by the offender set out a plan to attack two specifically identified targets – Offender aged 18 at the time and aged 21 at the time of sentence – Plea of guilty – Where plea was evidence of some contrition – Need for any sentence to reflect considerations of general deterrence, protection of the community and denunciation of the offence.
CRIMINAL LAW – Practice and procedure – Where report from psychologist tendered on behalf of the offender on sentence – Report contained statements made by the offender to the psychologist regarding the circumstances of the offending and the renunciation of his extremist beliefs – Where offender did not give sworn evidence – Limited weight given to hearsay statements and opinions of psychologist based on those statements in the absence of sworn evidence from the offender – Where the plea of guilty and the offender’s expressed desire to enrol in a remedial program could be taken as some cautious indication of a move away from previously held extremist beliefs
Legislation Cited: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code 1995 (Cth)
Cases Cited: Benbrika v R (2010) 29 VR 593; [2010] VSCA 281
BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379;
Cameron v R (2002) 209 CLR 339; [2002] HCA 6
Cappis v R [2015] NSWCCA 138
Elomar v R [2014] NSWCCA 303; (2014) 300 FLR 323
HJ v R [2014] NSWCCA 21
JM v R [2012] NSWCCA 83; (2012) 223 A Crim R 55
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
PK v R [2012] NSWCCA 263
R v Benbrika [2009] VSC 21; (2009) 222 FLR 433
R v Elomar and ors [2010] NSWSC 10; (2010) 264 ALR 759
R v Kahar; R v Ziamani [2016] 1 WLR 3156; [2016] EWCA Crim 568
R v Khazaal [2009] NSWSC 1015
R v Martin (1999) 1 Cr App Rep (S) 477
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Qutami [2001] NSWCCA 353; (2001) 127 A…

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 Ghazzawy

Details

AGLC: R v Ghazzawy [2017] NSWSC 474
Case: [2017] NSWSC 474
Decision Date: 08 May 2017

CaseChat Overview and Summary

The matter of R v Ghazzawy involved the sentencing of the defendant, Ghazzawy, who had pleaded guilty to offences relating to the preparation for a terrorist act. Ghazzawy was 18 years old when he compiled documents detailing a plan to attack two specifically identified targets. He was 21 at the time of sentencing. The Supreme Court of Victoria was tasked with determining an appropriate sentence, considering factors such as general deterrence, community protection, and denunciation of the offence. The court also had to assess the weight of a psychologist's report that included statements from Ghazzawy regarding his renunciation of extremist beliefs, while noting that Ghazzawy did not provide sworn evidence.

The central legal issues revolved around the appropriate sentence for Ghazzawy’s involvement in planning a terrorist attack, taking into account his age at the time of the offence and his subsequent plea of guilty. The court had to balance the need for deterrence and community protection against the potential for rehabilitation, given Ghazzawy's young age and expressed desire to enrol in a remedial program. Additionally, the court had to consider the reliability and weight of the psychologist's report, which contained second-hand statements from Ghazzawy, in the absence of his sworn testimony.

In delivering the judgment, the court emphasised the gravity of Ghazzawy's actions and the potential threat he posed to the community. The plea of guilty and his expressed desire to participate in a remedial program were viewed as some indication of contrition and a move away from extremist beliefs. However, the court gave limited weight to the psychologist's report due to the hearsay nature of the statements and the absence of sworn evidence from Ghazzawy himself. The court ultimately determined that a custodial sentence was necessary to effectively achieve the purposes of deterrence, protection of the community, and denunciation of the offence. The final orders included a sentence that reflected these considerations, alongside the need to provide Ghazzawy with opportunities for rehabilitation.

Orders