R v Mallah - [2005] NSWSC 317

CITATION:
R v Mallah [2005] NSWSC 317

HEARING DATE(S): 21/3/05 - 6/4/05, 15/4/05

JUDGMENT DATE :

21 April 2005

JUDGMENT OF:
Wood CJatCL at 1

DECISION:
HIS HONOUR: Zaky Mallah, for the offence to which you have pleaded guilty, I sentence you to imprisonment for 2 years and 6 months to date from 3 December 2003 and to expire on 2 June 2006. I make an order that you be released on 2 September 2005 upon giving security, by way of a recognisance, without surety, to comply with the following conditions, namely that: (i)You will be of good behaviour for a period of 2 years from 2 September 2005; (ii)You will, during that period, be subject to the supervision of the New South Wales Probation and Parole Service, and obey all reasonable directions of that Service as to your conduct, including any directions which it may make, as to your taking up of any accommodation which is offered to you through the good offices of the Mufti, Sheik Hilaly, or of the Lebanese Muslim Association, and as to your attendance at, and participation in, the mentoring and other programs offered by that Association and by its Youth Guidance Leader.

CATCHWORDS:
Criminal law - plea of guilty - recklessly making to another person a threat to cause serious harm to a third person, being a Commonwealth public official, by reason of the status of that third person - sentencing principles - issues of personal and general deterrence.

LEGISLATION CITED:
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)

CASES CITED:
R v Doff [2005] NSWCCA 119
R v Israil [2002] NSWCCA 255
R v Lawrence [2005] NSWCCA 91
R v Scognamiglio (1991) 56 A Crim R 81

PARTIES:
Regina
Zaky Mallah

FILE NUMBER(S):
SC 2004/2101

COUNSEL:
D J Fagan SC with G J Bellew (Crown)
P R Boulten SC

SOLICITORS:
Commonwealth Director of Public Prosecutions
Murphy's Lawyers Inc

LOWER COURT JURISDICTION:

- 6 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WOOD CJ at CL

Thursday 21 April 2005

2004/2101 Regina v Zaky MALLAH

SENTENCE

1 HIS HONOUR: On 21 March 2005 the Prisoner was indicted upon two counts alleging, in each case, that he did an act in preparation for or in the planning of a terrorist act, contrary to s 101.6(1) of the Criminal Code Act 1995 (Cth); and upon one further count of recklessly making to another person a threat to cause serious harm to a third person, being a Commonwealth public official, by reason of the status of that third person, contrary to s 147.2 of the Criminal Code Act 1995.

2 After a trial before a jury, he was, on 6 April 2005, acquitted of the first two counts. No verdict was taken in relation to the third count, for the reason that, on 29 March 2005 he changed his plea to one of guilty. He now stands for sentence on that third count.

Facts

3 Although the Prisoner was acquitted…

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 Mallah

Details

AGLC: R v Mallah [2005] NSWSC 317
Case: [2005] NSWSC 317
Decision Date: 21 April 2005

CaseChat Overview and Summary

The appellant, Mallah, was charged with recklessly making a threat to cause serious harm to a third person who was a Commonwealth public official. The appellant pleaded guilty to the offence and was sentenced to imprisonment. Mallah appealed against his sentence, arguing that the primary judge had failed to properly consider the principles of sentencing and had not adequately addressed the issues of personal and general deterrence. The court was required to determine whether the sentence imposed was manifestly excessive or inadequate, and whether the primary judge had correctly applied the relevant sentencing principles.

The court considered the principles of sentencing and the factors relevant to the determination of an appropriate sentence. The court noted that the offence involved a threat to cause serious harm to a Commonwealth public official, which was a serious matter that warranted a significant penalty. The court also noted that the offence involved an element of recklessness, which required the imposition of a penalty that would serve the purposes of general deterrence. The court held that the primary judge had correctly identified the relevant principles and had properly considered the factors relevant to the determination of an appropriate sentence. The court also held that the sentence imposed was not manifestly excessive or inadequate.

The court dismissed the appeal against sentence. The appellant's sentence of imprisonment was affirmed. The court held that the primary judge had correctly applied the principles of sentencing and had properly considered the issues of personal and general deterrence. The court held that the sentence imposed was appropriate in all the circumstances of the case.

Orders