Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: R v Lelikan [2019] NSWCCA 316 Hearing dates: 19 July 2019; 15 August 2019 Date of orders: 23 December 2019 Decision date: 23 December 2019 Before: Bathurst CJ at [1]; Bell P at [154]; Davies J at [157] Decision: Appeal dismissed
Catchwords: CRIME – Terrorism offences – Membership of a terrorist organisation – Member of Partiya Karkerên Kurdistanê (PKK) between 2011 and 2013 – Travelled with military arm, supported in writings, wore uniform and insignia and carried arms – - Sentencing judge found to be towards the lowest order of seriousness - Sentenced to Community Correction Order.
SENTENCING – Relevant factors on sentence – Objective seriousness – Terrorism – Membership of terrorist organisation – Whether appropriate to take into account the merits of the organisation – Merits of the cause is not a relevant factor - Consideration of ideology – Matter for the legislature.
SENTENCING – Relevant factors on sentence – Objective seriousness – Terrorism – Membership of terrorist organisation – History and objectives of organisation relevant – Fact organisation does not advocate nor engage in indiscriminate killing of civilians relevant – Organisation and resources of organisation relevant – Commitment to international humanitarian law not relevant – Classification of conflict not relevant.
SENTENCING – Relevant factors on sentence – Moral culpability – Relevant that joined organisation and maintained membership with full knowledge of objectives and method – Belief in the rightness of the cause not relevant – Reasons for joining organisation due to cruel treatment mitigates culpability.
SENTENCING – Error found – Exercise of residual discretion not to interfere with sentence.Legislation Cited: Charter of the United Nations Act 1945 (Cth)
Crimes Act 1914 (Cth)
Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code (Cth)Cases Cited: Alou v R (2019) 373 ALR 349; [2019] NSWCCA 231
Benbrika v R (2010) 29 VR 593; [2010] VSCA 281
Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9
Director of Public Prosecutions (Cth) v El Sabsabi [2017] VSCA 160
IM v R [2019] NSWCCA 107
R v F [2007] QB 960 at 967, 971; [2007] EWCA Crim 243
R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489
R v Kahar; R v Ziamini [2016] EWCA Crim 568; [2017] 2 All ER 782; [2016] 1 WLR 3156
R v Sarwar [2015] EWCA Crim 1886; [2016] 1 CR App R (S) 54
R v Zahab [2019] NSWSC 629Texts Cited: Nil Category: Principal judgment Parties: The Crown (applicant)
Renas Lelikan (respondent)Representation: Counsel:
Solicitors:
S McNaughton SC with R Ranken and J Caldwell (applicant)
P Boulten SC with J Roy (respondent)
Commonwealth Director of Public Prosecutions (applicant)
Younes and Espiner Lawyers (respondent)
File Number(s): 2016/219466 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Common Law
- Citation:
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- AGLC
- R v Lelikan [2019] NSWCCA 316
- Case
- [2019] NSWCCA 316
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the merits of the organisation and its cause should be taken into account when sentencing for membership of a terrorist organisation. The court noted that while the history and objectives of the organisation, its organisation and resources, and the fact that it does not advocate nor engage in indiscriminate killing of civilians are relevant factors, the merits of the cause and the classification of the conflict are not. The court also considered whether the respondent's belief in the rightness of the cause and their reasons for joining the organisation could mitigate their culpability.
The court found that while the respondent's belief in the rightness of the cause was not a relevant factor, the reasons for joining the organisation, namely the cruel treatment the respondent had experienced, could mitigate their culpability. However, the court found no error in the sentencing judge's exercise of residual discretion not to interfere with the sentence. The appeal was therefore dismissed, and the original sentence of a Community Correction Order was upheld.
No further orders were made by the court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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