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R v Lelikan

R v Lelikan

Case [2019] NSWCCA 316 23 December 2019

Membership of terrorist organisation

Criminal Law

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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 629
Texts Cited: Nil
Category: Principal judgment
Parties: The Crown (applicant)
Renas Lelikan (respondent)
Representation:
Counsel:
S McNaughton SC with R Ranken and J Caldwell (applicant)
P Boulten SC with J Roy (respondent)
Solicitors:
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:

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 Lelikan

Details

AGLC: R v Lelikan [2019] NSWCCA 316
Case: [2019] NSWCCA 316
Decision Date: 23 December 2019

CaseChat Overview and Summary

In the case of R v Lelikan, the respondent was found guilty of being a member of a terrorist organisation, specifically the Partiya Karkerên Kurdistanê (PKK), between 2011 and 2013. The respondent's involvement included travelling with the military arm of the organisation, supporting it in writings, wearing the uniform and insignia, and carrying arms. The respondent was sentenced to a Community Correction Order, with the sentencing judge considering the offence to be towards the lowest order of seriousness. The respondent appealed against the sentence on the basis that the sentencing judge erred in considering the merits of the PKK and the conflict in which it was engaged.

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