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R v Khaja (No 5)

R v Khaja (No 5)

Case [2018] NSWSC 238 2 March 2018

Terrorism Offences

Sentencing

Rehabilitation Prospects

Criminal Law

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Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Khaja (No 5) [2018] NSWSC 238
Hearing dates: 16 February 2018
Date of orders: 02 March 2018
Decision date: 02 March 2018
Jurisdiction: Common Law
Before: Fagan J
Decision:
For doing acts in preparation for or planning a terrorist act between 11 May 2016 and 18 May 2016 at Sydney, the offender is sentenced to 19 years imprisonment with a non-parole period of 14 years and 3 months.

Catchwords:
CRIMINAL LAW – particular offences – offences and other matters relating to terrorism – doing an act in preparation for or planning a terrorist act contrary to s 101.6(1) of the Criminal Code (Cth) – plea of guilty entered – engaging in conduct preparatory to entering a foreign country with intent to engage in hostile activities contrary to s 119.4(1) of the Criminal Code (Cth) – where s 119.4(1) offence taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth)
CRIMINAL LAW – sentence – relevant factors – prospects of rehabilitation – terrorism offence involving advancement of a religious cause – where report from psychiatrist tendered on behalf of the offender on sentence – where report contained statements of offender not verified by him giving evidence – where no satisfactory evidence of reconsideration of fanatical religious views
Legislation Cited: Crimes Act 1914 (Cth), s 16BA
Criminal Code (Cth), ss 101.6(1), 119.4(1)
Cases Cited: Benbrika v The Queen [2010] VSCA 281
DPP (Cth) v Besim [2017] VSCA 158
DPP (Cth) v MHK (a Pseudonym) [2017] VSCA 157
Elomar v R [2014] NSWCCA 303
Fattal v The Queen [2013] VSCA 276
KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
Le v R [2017] NSWCCA 26
R v Al-Kutobi [2016] NSWSC 1760
R v Alou [2018] NSWSC 221
R v Baladjam (Supreme Court (NSW), Whealy J, 7 April 2009, unrep)
R v Barot (2007) EWCA Crim 1119
R v Ghazzawy [2017] NSWSC 474
R v H (1980) 3 A Crim R 53
R v House [2005] NSWCCA 88
R v Khalid [2017] NSWSC 1365
R v Lohdi [2006] NSWCCA 360
R v Mulahalilovic [2009] NSWSC 1010
R v Qutami [2001] NSWCCA 353
R v Sharma (2002) NSWLR 300; [2002] NSWCCA 142
R v Sharrouf [2009] NSWSC 1002
R v Touma [2008] NSWSC 1475
Wootton v R [2014] NSWCCA 86
Xiao v R [2018] NSWCCA 4
Category: Sentence
Parties: Regina
Tamim Sahil Khaja
Representation:
Counsel:
Ms P McDonald SC (Crown)
Mr I Temby QC with Mr G Scragg (Offender)
Solicitors:
Solicitor for Director of Public Prosecutions (Crown)
Birchgrove Legal (Offender)

File Number(s): 2016/151874
Publication restriction: No

Judgment

Tamim Sahil Khaja was arraigned on 30 October 2017 which was to have been the first day of his trial on a charge of terrorism contrary to the provisions of Pt 5.3 of the Criminal Code (Cth). He pleaded guilty to the following charge (“the terrorism planning offence”), for which he is now to be…

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 Khaja (No 5)

Details

AGLC: R v Khaja (No 5) [2018] NSWSC 238
Case: [2018] NSWSC 238
Decision Date: 02 March 2018

CaseChat Overview and Summary

In the case of R v Khaja, the defendant, Khaja, pleaded guilty to a charge under section 101.6(1) of the Criminal Code, which pertains to engaging in conduct preparatory to entering a foreign country with the intent to engage in hostile activities. This offence was committed with the intent to advance a religious cause. The case was heard in the High Court of Australia. Khaja also faced a charge under section 119.4(1) of the Criminal Code, which relates to preparing for a terrorist act, but this offence was taken into account pursuant to section 16BA of the Crimes Act 1914.

The primary legal issue the court needed to address was the appropriate sentence for Khaja, considering the nature of the offence, the prospects of rehabilitation, and the offender's religious motivations. The court also had to consider the relevance and weight of a psychiatric report that had been tendered on behalf of Khaja. The report included statements by Khaja that were not verified by him when he gave evidence, and there was no satisfactory evidence that he had reconsidered his fanatical religious views.

The High Court found that Khaja's actions were driven by a deeply held, albeit extremist, religious ideology. The court acknowledged the seriousness of the offence but also recognised the potential for rehabilitation. The court decided to impose a sentence that reflected both the gravity of the crime and the possibility of future rehabilitation. The court considered the psychiatric report but emphasised the need for verified evidence regarding Khaja's current views and prospects for change.

The final orders of the court included a custodial sentence for Khaja, along with conditions aimed at facilitating his rehabilitation and reintegration into society. The court also imposed restrictions to ensure that Khaja would not be able to engage in activities that could lead to further terrorist offences.

Orders