R v Kent - [2009] VSC 375

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE CRIMINAL DIVISION
No. 1544 of 2006

THE QUEEN

SHANE KENT

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JUDGE OF THE COURT:	BONGIORNO JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 and 19 August 2009
DATE OF SENTENCE:	2 September 2009
CASE MAY BE CITED AS:	R v Kent
MEDIUM NEUTRAL CITATION:	[2009] VSC 375

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CRIMINAL LAW — Sentencing — Terrorism offences — Plea of guilty — Membership of a terrorist organisation — Creating a document connected with a terrorist act — Remorse — Proof of facts relevant to remorse — No admissible evidence — Criminal Code (Cth), Pt. 5.3 — Crimes Act 1914 (Cth), Pt. 1B — Charter of Human Rights and Responsibilities (Vic), s. 22 — R v Olbrich (1999) 199 CLR 270

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Appearances:	Counsel:	Solicitors:
For the Crown	Mr N. Robinson S.C. with Ms L. Taylor	Commonwealth Director of Public Prosecutions
For the prisoner	Mr J. Champion S.C. with Mr J. O’Sullivan	James Dowsley & Associates

HIS HONOUR:

Shane Kent was originally indicted with 12 other men on a number of counts alleging offences against Part 5.3 of the Commonwealth Criminal Code — terrorism offences. Kent himself faced three counts, that of being a member of a terrorist organisation and two counts relating to his having assisted in the production, with one of his co-accused, of part of a propaganda video for use on an overseas website said to be connected with the notorious international terrorist organisation, Al-Qaeda. Following interlocutory rulings which resulted in the severance of the two latter counts from the indictment, Kent stood trial with his 11 co-accused solely on the count of being a member of a terrorist organisation. That trial ran from February to September 2008 and resulted, as far as Kent was concerned, in the jury being discharged without verdict when they failed to reach agreement on the one count he faced. He was remanded for re-trial on that count.
In due course an indictment was filed against Kent in which the count of being a member of a terrorist organisation was joined, again, with the two counts previously severed. He pleaded not guilty on arraignment and a trial date was set. However, shortly before that trial was due to commence before Byrne J, the Crown filed over a new indictment against Kent which charged him with the count of being a member of a terrorist organisation and one count of making a document connected with preparation for a terrorist act, he being reckless as to that connection. On 28 July 2009 Kent pleaded guilty to these two counts before Byrne J, each of which carries a maximum penalty of imprisonment for ten years.
On 18 and 19 August 2009 a plea in mitigation in respect of these offences was heard. It is now the function of this Court to pass sentence in respect of them.
The offences
The first count on the indictment, that of being a member of a terrorist organisation between 1…

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 Kent

Details

AGLC: R v Kent [2009] VSC 375
Case: [2009] VSC 375
Decision Date: 2 September 2009

CaseChat Overview and Summary

The case of R v Kent involved the defendant, Kent, who pleaded guilty to several terrorism-related offences. Kent had admitted to being a member of a terrorist organisation and creating a document connected with a terrorist act. The matter was heard in the County Court of Victoria, where the sentencing phase was being determined. The primary legal issues before the court were the appropriate sentence for the defendant, taking into account his plea of guilty, his remorse, and the gravity of his offences.

The court had to consider the nature and seriousness of the offences, the defendant's role in the commission of the crimes, and his expression of remorse. The court noted that while the defendant had pleaded guilty, there was no admissible evidence to prove the facts relevant to his claimed remorse. The court also had to balance the principles of deterrence and denunciation with the need for rehabilitation. In weighing these factors, the court referred to the relevant statutory provisions under the Criminal Code and the Crimes Act, and considered the defendant's rights under the Charter of Human Rights and Responsibilities.

In reaching its decision, the court held that the lack of admissible evidence of the defendant's remorse meant that this factor could not be given significant weight in the sentencing process. The court also emphasised the serious nature of the offences, which involved membership in a terrorist organisation and creating a document connected with a terrorist act. Ultimately, the court determined that the defendant's sentence should reflect the gravity of the offences and the need to deter others from engaging in similar criminal conduct. The final orders of the court included a custodial sentence, as well as other conditions and requirements aimed at the rehabilitation and reintegration of the defendant into society.

Orders