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R v Kruezi

R v Kruezi

Case [2020] QCA 222 13 October 2020

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Kruezi [2020] QCA 222

PARTIES:

R
v
KRUEZI, Agim
(applicant)

FILE NO/S:

CA No 312 of 2018
SC No 806 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 31 July 2018 (Atkinson J)

DELIVERED ON:

13 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2020

JUDGES:

McMurdo and Mullins JJA and Williams J

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to preparations for incursions into a foreign State (count 1) and acts in preparation for, or planning, a terrorist act (count 3) – where s 19AG Crimes Act 1914 (Cth) required that, for terrorism offences, three-quarters of the sentence must be served before being eligible for parole – where only count 3 was a terrorism offence – where the applicant was sentenced to imprisonment for 17 years and four months with a non-parole period of 13 years for count 3, and a concurrent period of imprisonment of three years and six months on count 1 – where the sentencing judge increased the sentence on count 3 to take into account the offending of count 1, but ameliorated the sentence on count 3 to take into account the applicant’s plea of guilty and that the minimum non-parole period did not apply to count 1 – whether the sentencing judge erred in imposing concurrent rather than cumulative sentences

SENTENCE – SENTENCING ORDERS – NON-PAROLE PERIOD OR MINIMUM TERM – QUEENSLAND – FEDERAL OFFENDERS – where the applicant pleaded guilty to preparations for incursions into a foreign State (count 1) and acts in preparation for, or planning, a terrorist act (count 3) – where the sentencing judge followed the Nagy approach to sentencing and increased the sentence on count 3 to take into account the offending of count 1 but ameliorated the sentence on count 3 to take into account that the minimum non-parole period did not apply to count 1 – where s 16A(1) Crimes Act 1914 (Cth) required that a sentence for Commonwealth offences be “of a severity appropriate in all the circumstances of the offence” – where the mandatory non-parole period for count 3 could have the collateral consequence that the applicant would serve a longer period of actual imprisonment – whether the sentencing judge erred in applying the Nagy approach to sentencing for Commonwealth offences

Crimes Act 1914 (Cth), s 16A, s 17A, s 19AB, s 19AG
Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) s 6, s 7
Criminal Code Act 1995 (Cth), s 3, s 101.6

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited
Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Johnson v The Queen (2004)

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 Kruezi

Details

AGLC: R v Kruezi [2020] QCA 222
Case: [2020] QCA 222
Decision Date: 13 October 2020

CaseChat Overview and Summary

In the case of R v Kruezi, the applicant appealed against the sentence imposed for preparing incursions into a foreign State and planning a terrorist act. The central issue was whether the sentencing judge erred in imposing concurrent sentences instead of cumulative sentences, and whether the judge erred in applying the Nagy approach to sentencing for Commonwealth offences. The applicant argued that the concurrent sentences resulted in a longer period of actual imprisonment due to the mandatory non-parole period for the terrorism offence. The court examined whether the sentencing judge appropriately balanced the severity of the offences and the need to deter similar conduct.

The court found that the sentencing judge correctly increased the sentence on count 3 to account for the offending of count 1, but appropriately reduced the sentence to consider the plea of guilty and the absence of a minimum non-parole period for count 1. The court also concluded that the Nagy approach was correctly applied, as the judge appropriately balanced the severity of the offences and the need to deter similar conduct. The mandatory non-parole period for count 3 did not result in an unduly harsh sentence, as the judge considered all relevant factors.

The court ultimately found no error in the sentencing judge's approach and dismissed the appeal. Consequently, the applicant's sentence of 17 years and 4 months imprisonment with a non-parole period of 13 years for count 3 and a concurrent sentence of 3 years and 6 months for count 1 was upheld. The application for leave to appeal was refused.

Orders

Orders of the court

Application for leave to appeal refused.

Background

Background to the litigation

The applicant, in effect, abandoned the ground of appeal that the sentence was manifestly excessive, as Mr Kimmins of counsel (who appeared on the appeal with Mr Lange of counsel for the applicant) conceded that the applicant had to show error on the basis of one or other of the two grounds of appeal (set out above) before making any submissions that a different sentence should be imposed.Background facts Mr Kruezi was born in Australia in 1992 of Albanian descent. He is of the Muslim Sunni faith. He had a prior, but very minor criminal history. Mr Kruezi committed the offences in the context of the Syrian civil war and armed conflict. Mr Kruezi supported the overthrow of the Assad regime through armed hostilities and the establishment in its place of a state governed by Islamic law. Mr Kruezi believed that he, and other Muslims, had a religious duty to fight against those who sought to oppress Muslims and that provided part of the motivation for Mr Kruezi’s offending. Mr Kruezi obtained an Australian passport in December 2013 and booked a flight from Brisbane to Pristina in Kosovo, intending to travel from Australia to Pristina and on to Turkey and to enter into Syria with the intention of engaging in hostile activities in the Syrian conflict. The Minister for Foreign Affairs and Trade cancelled Mr Kruezi’s Australian passport on security grounds on 6 March 2014. Mr Kruezi was intercepted by Australian authorities at the Brisbane International Airport on 9 March 2014 and prevented from travelling. The act which resulted in Mr Kruezi being charged with count 1 was that attendance at the Brisbane International Airport in preparation for him to enter Syria with intent that he engage in a hostile activity in Syria. This constituted an act preparatory to the commission of an offence against s 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The maximum penalty for count 1 is 10 years’ imprisonment. Count 3 arose out of Mr Kruezi’s conduct between 28 August 2014 and 10 September 2014 during which he acquired a .22 calibre rifle in Sydney, transported it from Sydney to Logan, and obtained or attempted to obtain 10 litres of petrol in a plastic jerry can, corks and glass bottles which were the ingredients to make improvised explosive devices known as Molotov cocktails. The offence against s 101.6(1) of the Criminal Code (Cth) was constituted by Mr Kruezi intentionally doing those acts in preparation for, or planning, a terrorist act. Mr Kruezi was almost 22 years old when he committed the conduct that is the subject of count 3. The maximum penalty for count 3 is life imprisonment. As count 3 is a terrorism offence, a minimum non-parole period of at least three-quarters of the sentence of imprisonment had to be imposed, pursuant to s 19AG(2)(a) of the Act. No statutory minimum non-parole period applied to count 1. Apart from the period in pre-sentence custody for which the declaration was made, Mr Kruezi had been charged with further offences for which he was held on remand from 9 May 2017 to 30 July 2018, when he was also being held on remand for the subject offences. The further period between 9 May 2017 and 30 July 2018 was therefore not declarable as pre-sentence custody for counts 1 and 3, but the prosecution and Mr Kruezi’s counsel who appeared on the sentencing hearing were agreed on the manner in which the sentencing judge should take into account the period of one year, two months and 22 days that was not declarable, so as to give Mr Kruezi full credit for that time in custody in fixing the sentences for counts 1 and 3. Both parties rounded up the non-declarable period to 15 months and agreed that would result in a reduction of 20 months to the head sentence.Sentencing remarks

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Count 3 concerns a contravention of s 101.6(1) of the Criminal Code which states as follows:“101.6 Other acts done in preparation for, or planning, terrorist acts(1)A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.Penalty: Imprisonment for life.(2)A person commits an offence under subsection (1) even if:(a) a terrorist act does not occur; or(b) the person’s act is not done in preparation for, or planning, a specific terrorist act; or(c) the person’s act is done in preparation for, or planning, more than one terrorist act.(3)Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1).” As these are Commonwealth offences, the sentencing principles outlined in s 16A of the Crimes Act are applicable. The overall approach is stated in s 16A(1) that “a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”. On the facts of this particular case, section 16A(2)(c) is also relevant, which states:“(2)In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:...(c)if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;…” Section 19AB of the Crimes Act sets out when a Court must fix a non-parole period. Section 17A of the Crimes Act outlines further restrictions on imposing sentences, including that the sentence must be appropriate in all of the circumstances. Count 3, being an offence against s 101.6(1) of the Criminal Code, is a “terrorism offence” and therefore s 19AG of the Crimes Act is also relevant. Section 19AG states as follows:“19AG Non‑parole periods for sentences for certain offences(1)This section applies if a person is convicted of one of the following offences (each of which is a minimum non‑parole offence) and a court imposes a sentence for the offence:(b) a terrorism offence;(c) an offence against Division 80 of the Criminal Code;(d) an offence against subsection 91.1(1) or 91.2(1) of the Criminal Code.Note: A sentence for a minimum non‑parole offence is a federal sentence, because such an offence is a federal offence.(2)The court must fix a single non‑parole period of at least 3/4 of:(a) the sentence for the minimum non‑parole offence; or(b) if 2 or more sentences have been imposed on the person for minimum non‑parole offences—the aggregate of those sentences.The non‑parole period is in respect of all federal sentences the person is to serve or complete.(3)For the purposes of subsection (2):(a) a sentence of imprisonment for life for a minimum non‑parole offence is taken to be a sentence of imprisonment for 30 years for the offence; and(b) it does not matter:(i)whether or not the sentences mentioned in that subsection were imposed at the same sitting; or(ii)whether or not the convictions giving rise to those sentences were at the same sitting; or(iii)whether or not all the federal sentences mentioned in that subsection are for minimum non‑parole offences.…(5)Sections 19AB, 19AC, 19AD, 19AE and 19AR have effect subject to this section.Note: The effects of this include preventing a court from:(b)confirming (under paragraph 19AD(2)(d)) a pre‑existing non‑parole period; or(c)confirming (under paragraph 19AE(2)(d)) a recognizance release order; or(ca)making a recognizance release order under paragraph 19AE(2)(e) or 19AR(2)(e); or(d)declining (under subsection 19AB(3) or 19AC(1) or (2) or paragraph 19AD(2)(f)) to fix a non‑parole period.”Approach to specific errors

Actions

Citations

R v Kruezi [2020] QCA 222

Most Recent Citation

R v Brookman (Sentence) [2021] VSC 367

Cases Citing This Decision

R v Burman [2023] QCA 245
Citation 1

…arkeet [2009] 1 Qd R 190; [2008] QCA 143 , considered R v Gadaloff [1999] QCA 286 , cited R v Kruezi (2020) 6 QR 119; [2020] QCA 222 , cited R v Latemore [2019] QCA 55 , considered R v Liberti (1991) 55 A Crim R 120, cited R v Massey [2015] QCA 254 , considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175 , cited R…
R v Schulz; Ex parte [2023] QCA 150
Citation 2 (Para 8)

…cumstances, as it would result in a manifestly excessive sentence on the most serious count.” [7] R v Nagy [2004] 1 Qd R 63. [8] R v Kruezi [2020] QCA 222.…
R v BEB [2023] QCA 105
Citation 3

…rong [2016] QCA 243, cited R v Bowditch [2014] QCA 157, cited R v Kilic (2016) 259 CLR 256; [2016] HCA 48, cited R v Kruezi (2020) 6 QR 119; [2020] QCA 222, cited R v Mahony & Shenfield [2012] QCA 366, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered R v Pham (2015) 256 CLR 550; [2015] HCA 39, cite…
R v Badaa [2022] QCA 12
Citation 4 (Para 33)

…on law of Queensland described in R v Nagy [14] and R v Kruezi .[15] [14] R v Nagy [2004] 1 Qd R 63; [2003] QCA 175. [15] R v Kruezi (2020) 6 QR 119; [2020] QCA 222 pars 21 ‑ 30 McMurdo and Mullins JJA.…
R v Harrison; Ex parte [2021] QCA 279
Citation 5

…1974] HCA 26, applied R v Ellis (1986) 6 NSWLR 603, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered R v Kruezi (2020) 6 QR 119; [2020] QCA 222, cited Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21, cited COUNSEL: L K Crowley QC, with J Goldie, for the appellant D A Holliday QC, with C J Lovel,…
R v Baker [2021] QCA 150
Citation 6 (Para 22)

…non-parole period of that being a serious violent offence. An example of such a sentence is that which was upheld by this Court in R v Kruezi .[5] [5][2020] QCA 222.…
R v Brookman (Sentence) [2021] VSC 367
Citation 7 (Para 1)

…der’s serious health issues. DPP v Kocoglu [2019] VCC 1838, is distinguishable as the offender’s conduct was very confined. Further, R v Kruezi [2020] QCA 222, is distinguishable because the offender was charged with charges under the CFIR Act and terrorism charges under the Criminal Code. The case of R v Taleb (…
R v Kampf [2021] QCA 47
Citation 8 (Para 9)

…the sentencing judge must ensure that the total period of imprisonment adequately and fairly represents the overall criminality.[22] [22] R v Kruezi [2020] QCA 222 at [27].…
Director of Public Prosecutions (Cth) v Ali [2020] VSCA 330
Citation 9 (Para 1)

…dge took into account his cognitive impairment. Each was sentenced to 18 years’ imprisonment, which was upheld on appeal.[60] [58]In R v Kruezi [2020] QCA 222, [47] (‘ Kruezi ’) McMurdo and Mullins JJA observed that the offence of conspiracy to commit an offence under s 101.6 of the Code is objectively more serio…
R v Matauaina [2020] QCA 274
Citation 10 (Para 11)

…rly represents the totality of criminality involved in all of the offences to which that total period is attributable.” (citations omitted) [17][2020] QCA 222. [18](1994) 71 A Crim R 459 at 466.…

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Cases Cited

Khalid v R [2020] NSWCCA 73
Citation 1 (Para 18)

…ccessful appeals for the sentences imposed on two of the offenders, a child IM and Mr Khalid respectively: IM v R (2019) 100 NSWLR 110 and Khalid v R [2020] NSWCCA 73.…
Abbas v The Queen [2020] VSCA 80
Citation 2 (Para 6)

…a single offender for the reasons explained by Whealy J in R v Elomar (2010) 264 ALR 759 at [64] that were adopted by the court in Abbas v The Queen [2020] VSCA 80 at [60]. That explains the length of the sentence that was ultimately imposed on Mr Khalid as a senior member of the conspiracy in Khalid v R . Takin…
R v Kirke [2020] QCA 53
Citation 3 (Para 27)

…The recent decision of the Queensland Court of Appeal in R v Kirke [2020] QCA 53 touches on the issue of “transparency” in the synthesis process of sentencing (although dealing with State offences). In Kirke the appeal involved a primary offence which was potentially a serious violence offence and others that we…
IM v R [2019] NSWCCA 107
Citation 4 (Para 18)

…ssistance has been the subject of successful appeals for the sentences imposed on two of the offenders, a child IM and Mr Khalid respectively: IM v R (2019) 100 NSWLR 110 and Khalid v R [2020] NSWCCA 73.…
R v Randall [2019] QCA 25
Citation 5 (Para 29)

…mstances does not mandate such a sequential form of reasoning.”[58] [58]Citing Markarian v The Queen (2005) 228 CLR 357 at [27] and R v Randall [2019] QCA 25 at [38].…
Xiao v R [2019] NSWCCA 4
Citation 6 (Para 23)

…y plea pursuant to s 16A(2)(g) of the Act which was the prevailing view in New South Wales at that time, until the decision in Xiao v The Queen (2018) 96 NSWLR 1 given on 5 February 2018. IM was therefore successful on the appeal on the basis of the ground that there was no regard given to the utilitarian value of h…
R v Khaja (No 5) [2018] NSWSC 238
Citation 7 (Para 15)

…[2017] VSCA 158, Director of Public Prosecutions (Cth) v MHK (A Pseudonym) (No 1) (2017) 52 VR 272, R v Khalid [2017] NSWSC 1365 and R v Khaja (No 5) [2018] NSWSC 238. The sentencing judge described the decision in Khalid , where three offenders had pleaded guilty to one offence of conspiracy to commit acts in prep…
R v Khalid [2017] NSWSC 1365
Citation 8 (Para 15)

…r of Public Prosecutions (Cth) v Besim [2017] VSCA 158, Director of Public Prosecutions (Cth) v MHK (A Pseudonym) (No 1) (2017) 52 VR 272, R v Khalid [2017] NSWSC 1365 and R v Khaja (No 5) [2018] NSWSC 238. The sentencing judge described the decision in Khalid , where three offenders had pleaded guilty to one offenc…
DPP (Cth) v MHK [2017] VSCA 157
Citation 9 (Para 15)

…the Code , including Director of Public Prosecutions (Cth) v Besim [2017] VSCA 158, Director of Public Prosecutions (Cth) v MHK (A Pseudonym) (No 1) (2017) 52 VR 272, R v Khalid [2017] NSWSC 1365 and R v Khaja (No 5) [2018] NSWSC 238. The sentencing judge described the decision in Khalid , where three offenders ha…
DPP (Cth) v Besim [2017] VSCA 158
Citation 10 (Para 15)

…then proceeded to consider authorities for comparable offending against s 101.6 of the Code , including Director of Public Prosecutions (Cth) v Besim [2017] VSCA 158, Director of Public Prosecutions (Cth) v MHK (A Pseudonym) (No 1) (2017) 52 VR 272, R v Khalid [2017] NSWSC 1365 and R v Khaja (No 5) [2018] NSWSC 23…
R v Armstrong [2016] QCA 243
Citation 11 (Para 18)

…t three-quarters of the head sentence imposed for count 3. As was pointed out by McMurdo JA (with whom Fraser JA and North J agreed) in R v Armstrong [2016] QCA 243 at [35] the approach of imposing a global sentence on one offence to take account of the overall criminality for all offences for which the offender…
R v Bowditch [2014] QCA 157
Citation 12 (Para 6)

…The application of the Nagy approach was considered in R v Bowditch [2014] QCA 157. In relation to the choice facing a sentencing judge who is sentencing for more than one offence, McMurdo P observed at [2]: “Generally, judges adopt one of two approaches. They may impose an increased head sentence, usually on the…
R v Derks [2011] QCA 295
Citation 13 (Para 5)

…as a result a serious violent offender declaration was made resulting in a non-parole period of 80 per cent applying in respect of all offending. [62][2011] QCA 295.…
Hili v The Queen [2010] HCA 45
Citation 14 (Para 11)

…The relevance of general sentencing principles to sentencing for federal offences was explained in Hili v The Queen (2010) 242 CLR 520 at [25]: “As noted in Johnson v The Queen , s 16A of the Crimes Act , on its proper construction, accommodates the application of common law principles of sentencing, such as the prin…
R v Elomar [2010] NSWSC 10
Citation 15

…ered R v Armstrong [2016] QCA 243, cited R v Derks [2011] QCA 295, cited R v Elomar (2010) 264 ALR 759; [2010] NSWSC 10, cited R v Kirke [2020] QCA 53, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered COUNSEL: A J Kimmins with P Lange for the applicant L K Crowley QC, with A Hughes, for the respond…
R v Lodhi [2006] NSWSC 691
Citation 16 (Para 21)

…n submits that a lower discounted head sentence should not be imposed for the purposes of setting the effect of section 19AG relying on R v Lodhi [2006] NSWSC 691 at [107] where Justice Whealy said that he did not accept the submission made on the offender’s behalf that because of the operation of section 19AG it w…
Markarian v The Queen [2005] HCA 25
Citation 17

…Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, considered R v Armstrong [2016] QCA 243, cited R v Derks [2011] QCA 295, cited R v Elomar (2010) 264 ALR 759; [2010] NSWSC 10, cited R v Kirke [2020] QCA 53, considered R v Nagy [2004] 1 Qd R 63…
Johnson v The Queen [2004] HCA 15
Citation 18

…Queen (1989) 167 CLR 372; [1989] HCA 39, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, considered R v Armstrong [2016] QCA 243, cited R v Derks [2011] QCA 295, cited R v Elomar (2010) 264 ALR…
R v Nagy [2003] QCA 175
Citation 19

…010) 264 ALR 759; [2010] NSWSC 10, cited R v Kirke [2020] QCA 53, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered COUNSEL: A J Kimmins with P Lange for the applicant L K Crowley QC, with A Hughes, for the respondent SOLICITORS: Birchgrove Legal for the applicant Director of Public Prosecutions (C…
AB v The Queen [1999] HCA 46
Citation 20

…) Act 1978 (Cth) s 6, s 7 Criminal Code Act 1995 (Cth), s 3, s 101.6 AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15, cited Markari…
Pearce v The Queen [1998] HCA 57
Citation 21 (Para 4)

…ciple expressed in cases such as Mill v The Queen [39] and Pearce v The Queen .[40] [38](2004) 78 ALJR 616; [2004] HCA 15. [39](1988) 166 CLR 59. [40](1998) 194 CLR 610.…
Griffiths v The Queen [1989] HCA 39
Citation 22

…101.6 AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, considered R…
Mill v The Queen [1988] HCA 70
Citation 23 (Para 9)

…ney-General (Qld) (2014) A Crim R 177 at [18] – [19] that the High Court approved the description of the totality principle in Mill v The Queen (1988) 166 CLR 59, 63 to review consecutive sentences to consider whether the aggregate is “just and appropriate”, but that was then extended in Mill where the offender comm…
House v R [1936] HCA 40
Citation 24

…ited Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, considered R v Armstrong [2016] QCA 243, cited R v Derks [2011] QCA 29…
House v The King 63 WN 176
Citation 25 (Para 12)

…The general approach for appeals against sentences was described in House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at pp 504 – 505: “It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different c…

Legislation Cited

Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) 6
3 mentions (from Para 6)
Crimes Act 1914 (Cth) 16A
3 mentions (from Para 2)
Criminal Code Act 1995 (Cth) 3
2 mentions (from Para 10)
Customs Act 1901 (Cth)
1 mention (from Para 5)

CITATION:	R v Kruezi [2020] QCA 222
PARTIES:	R v KRUEZI, Agim (applicant)
FILE NO/S:	CA No 312 of 2018 SC No 806 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 31 July 2018 (Atkinson J)
DELIVERED ON:	13 October 2020
DELIVERED AT:	Brisbane
HEARING DATE:	30 March 2020
JUDGES:	McMurdo and Mullins JJA and Williams J
ORDER:	Application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to preparations for incursions into a foreign State (count 1) and acts in preparation for, or planning, a terrorist act (count 3) – where s 19AG Crimes Act 1914 (Cth) required that, for terrorism offences, three-quarters of the sentence must be served before being eligible for parole – where only count 3 was a terrorism offence – where the applicant was sentenced to imprisonment for 17 years and four months with a non-parole period of 13 years for count 3, and a concurrent period of imprisonment of three years and six months on count 1 – where the sentencing judge increased the sentence on count 3 to take into account the offending of count 1, but ameliorated the sentence on count 3 to take into account the applicant’s plea of guilty and that the minimum non-parole period did not apply to count 1 – whether the sentencing judge erred in imposing concurrent rather than cumulative sentences SENTENCE – SENTENCING ORDERS – NON-PAROLE PERIOD OR MINIMUM TERM – QUEENSLAND – FEDERAL OFFENDERS – where the applicant pleaded guilty to preparations for incursions into a foreign State (count 1) and acts in preparation for, or planning, a terrorist act (count 3) – where the sentencing judge followed the Nagy approach to sentencing and increased the sentence on count 3 to take into account the offending of count 1 but ameliorated the sentence on count 3 to take into account that the minimum non-parole period did not apply to count 1 – where s 16A(1) Crimes Act 1914 (Cth) required that a sentence for Commonwealth offences be “of a severity appropriate in all the circumstances of the offence” – where the mandatory non-parole period for count 3 could have the collateral consequence that the applicant would serve a longer period of actual imprisonment – whether the sentencing judge erred in applying the Nagy approach to sentencing for Commonwealth offences Crimes Act 1914 (Cth), s 16A, s 17A, s 19AB, s 19AG Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) s 6, s 7 Criminal Code Act 1995 (Cth), s 3, s 101.6 AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Johnson v The Queen (2004)