R v HG

Case [2018] NSWSC 1849 11 December 2018

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v HG [2018] NSWSC 1849
Hearing dates: 30 November 2018
Date of orders: 11 December 2018
Decision date: 11 December 2018
Jurisdiction: Common Law
Before: Bellew J
Decision:
(1) The offender is convicted of the offence of doing acts in preparation for, or planning, a terrorist act or acts.
(2) The offender is sentenced to imprisonment for 16 years commencing on 12 October 2016 and expiring on 11 October 2032.
(3) I specify a non-parole period of 12 years imprisonment commencing on 12 October 2016 and expiring on 11 October 2028.
(4) The offender will be eligible for release on parole on 11 October 2028.
(5) I am satisfied that there are special circumstances within the meaning of s 19(4)(c) of the Children (Criminal Proceedings) Act 1987 (NSW) and I order, pursuant to s 19(1) of that Act, that the sentence that I have imposed upon the offender be served by him as a juvenile offender up to his attaining the age of 21 years on 6 May 2021.
(6) Pursuant to s 105C of the Criminal Code 1995 (Cth) I warn the offender that an application may be made for a continuing detention order requiring him to be detained after the completion of his sentence.

Catchwords:
CRIMINAL LAW – Offences – Sentence – Doing acts in preparation for a terrorist act – Offender arrested in possession of knives and camouflage clothing – Steps taken by offender in an effort to ensure that he could not be traced – Where offending motivated by an adherence to extremist ideology including a belief that the Australian Government was “evil” – Where actions of the offender were consistent with propaganda published by Islamic State – Where the commission of a terrorist act was imminent at the time of the offender’s arrest – Necessity to impose a sentence which would denounce the offending and protect the community - Necessity for general deterrence
CRIMINAL LAW – Offences – Sentence – Doing acts in preparation for a terrorist act – Where offender 16 years of age at the time of the offending – Serious offending – Adult like behaviour – Relevance of youth on sentence – Consideration of the extent of the mitigatory effect of youth in cases of serious offending
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Cases Cited: Benbrika v R (2010) 29 VR 593; [2010] VSCA 281
BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
DPP v Besim [2017] VSCA 158
DPP (Cth) v Fattal [2013] VSCA 276
DPP (Cth) v MHK (A Pseudonym) [2017] VSCA 157
Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 383
HJ v R [2014] NSWCCA 21
JM v R (2012) 223 A Crim R 55; [2012] NSWCCA 83
KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
Lodhi v R (2007) 179 A Crim R…

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 HG

Details

AGLC: R v HG [2018] NSWSC 1849
Case: [2018] NSWSC 1849
Decision Date: 11 December 2018

CaseChat Overview and Summary

The defendant was arrested and charged with the offence of doing acts in preparation for a terrorist act, as set out in section 102.3 of the Criminal Code Act 1995 (Cth). The case was heard in the Supreme Court of Queensland, where the defendant, aged 16 at the time of the offence, was found guilty and sentenced. The primary legal issues the court had to address were the appropriate sentence for the offence, taking into account the defendant’s youth and the gravity of the offence, as well as the need for denunciation and general deterrence.

The court considered the defendant's actions, which included possession of knives and camouflage clothing, as well as steps taken to avoid being traced. These actions were motivated by adherence to an extremist ideology that deemed the Australian Government to be “evil,” and were consistent with propaganda published by the Islamic State. The court recognised the imminence of a terrorist act at the time of the defendant's arrest and weighed the need for a sentence that would denounce the offending and protect the community, while also considering the mitigating effect of the defendant's youth. The court also considered the necessity for general deterrence, emphasising the importance of sending a strong message against such activities.

After careful consideration, the court imposed a sentence that balanced the seriousness of the offence with the defendant's age and the circumstances of the case. The court found that the defendant's actions were indicative of adult-like behaviour despite his young age, which warranted a sentence reflecting the gravity of the offending. The court also highlighted the importance of deterrence, noting that a significant sentence was necessary to ensure the protection of the community and to denounce the offending. The final orders of the court reflected this balanced approach, imposing a sentence that was both punitive and rehabilitative, aimed at preventing future offending while also considering the defendant's age and circumstances.

Orders