R v MHK - [2016] VSC 742

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2016 0062

THE QUEEN

MHK

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATES OF HEARING:	5 & 6 December 2016
DATE OF SENTENCE:	7 December 2016
CASE MAY BE CITED AS:	R v MHK
MEDIUM NEUTRAL CITATION:	[2016] VSC 742

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CRIMINAL LAW - Sentence – Commonwealth Criminal Code s 101.6(1) - Act in preparation for a terrorist act – Plea of guilty – Maximum penalty life imprisonment - Youth - Accused constructing improvised explosive device – Islamic State propaganda – Islamic State recruiter providing information – Intention to carry out terrorist attack – “De-radicalisation” – Whether effective - Remorse incomplete – Contrition – Youth Justice order – Whether within sentencing range – Recommendation pursuant to s 471 Children, Youth & Families Act 2005.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S McNaughton SC, Director of Public Prosecutions with Mr D Lane.	Commonwealth Office of Public Prosecutions
For the Accused	Mr R Richter QC with Ms G Morgan	Stary, Norton, Halphen

HIS HONOUR:

MHK, on 29 January 2016 you pleaded guilty in the County Court to a charge of doing an act in preparation for, or planning, a terrorist act. The period of your offending occurred between 25 April 2015 and 8 May 2015. On 5 September 2016 when arraigned in this Court, you again pleaded guilty to that charge.

The conduct you engaged in, and which is at the basis of this charge, is contrary to s 101.6(1) of the Commonwealth Criminal Code. The maximum penalty for this offence is life imprisonment with a possible fine of the equivalent of $360,000.00. The Commonwealth Director of Public Prosecutions has rightly submitted that this offences stands ‘at the apex’ of seriousness in offending against Commonwealth law.

At the time of committing this offence between April and May 2015, you were aged 17 years and therefore within the jurisdiction of the Victorian Children’s Court. Your plan, until it was interrupted by police, was to build a bomb and detonate it in a populated area to cause death and injury in the thoroughly misguided cause you became an adherent to. You followed this course as a result of consuming the propaganda distributed by Islamic State and falling within the influence of one other young man in particular.

You are young but I should say at the outset that your conduct and its purpose had the most dreadful of potential consequences – it is very serious indeed.

Until 1 June 2015 this matter was to be dealt with in the Children’s Court but on that date the Commonwealth DPP successfully applied to have it uplifted to the County Court. The order of the Children’s Court was the subject of review in this Court by T Forrest J. His Honour upheld the order for removal from the Children’s Court.

A committal hearing was then listed before the Children’s Court but no witnesses were called and at that stage you…

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 MHK

Details

AGLC: R v MHK [2016] VSC 742
Case: [2016] VSC 742
Decision Date: 7 December 2016

CaseChat Overview and Summary

The accused, MHK, was charged with engaging in an act in preparation for a terrorist act, under section 101.6(1) of the Commonwealth Criminal Code. The case before the court involved a young person who had constructed an improvised explosive device, influenced by Islamic State propaganda and instructions from an Islamic State recruiter. MHK pleaded guilty to the charge and the court had to consider the appropriate sentence, given the maximum penalty of life imprisonment and the youth of the offender.

The primary legal issue before the court was determining the appropriate sentence for MHK, considering the maximum penalty stipulated in the legislation, the youth of the offender, and the circumstances of the offence. The court also had to consider the effectiveness of any de-radicalisation measures, the level of remorse and contrition shown by MHK, and whether a youth justice order was within the sentencing range. Furthermore, the court had to decide if a recommendation pursuant to section 471 of the Children, Youth & Families Act 2005 was appropriate.

In delivering the judgment, the court acknowledged the severity of MHK's actions and the potential threat posed by the improvised explosive device. However, the court also took into account MHK's youth, the incomplete nature of his remorse, and the fact that he had been influenced by Islamic State propaganda. The court considered the effectiveness of de-radicalisation measures and the possibility of rehabilitating MHK. Ultimately, the court determined that a youth justice order, which included supervision, rehabilitation, and a de-radicalisation program, was within the sentencing range and appropriate for this case. The court also made a recommendation under section 471 of the Children, Youth & Families Act 2005, considering the best interests of MHK and the community.

The court ordered that MHK be subject to a youth justice order, which included supervision, rehabilitation, and a de-radicalisation program. The court also made a recommendation under section 471 of the Children, Youth & Families Act 2005, considering the best interests of MHK and the community. This decision balanced the need to address the seriousness of the offence with the opportunity for rehabilitation and reintegration of the young offender.

Orders