R v Mo (No 1)

[2016] NSWDC 144

District Court

New South Wales

Medium Neutral Citation:	R v MO (No 1) [2016] NSWDC 144
Hearing dates:	29 January 2016
Date of orders:	29 January 2016
Decision date:	29 January 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	For all three offences I sentence the offender to imprisonment to date from 23 December 2014. I set a head sentence of two and a half years imprisonment but the offender is to be released pursuant to a reconnaissance release order after serving 18 months. Thus that means that the offender is to be released on 22 June 2016.
Catchwords:	CRIMINAL LAW – Sentence – Breach Control Order – Terrorism offence
Category:	Sentence
Parties:	The Crown MO
Representation:	Counsel: T Anderson – Crown Mr P Lange- Offender   Solicitors: Commonwealth Director of Public Prosecutions Hanna Legal - Offender
File Number(s):	2014/376830
Publication restriction:	There is to be no publication of the name of the offender or of any material which may tend to identify the offender

SENTENCE

1. HIS HONOUR: Few in the community would be unconcerned by the prospect of terrorist acts taking place within Australia. The Commonwealth parliament has responded in a number of ways to the increasing threat of terrorism. One particular way of particular relevance to today’s proceedings is the introduction of provisions concerning control orders to which citizens can be subject by which means their behaviour can be controlled in an effort to protect members of the public from terrorist acts.

2. In this case the offender MO was subject to an interim control order. He has breached it, he admits, in three ways. He was served with the control order on 18 December 2014 it having been made the day before. One of the terms of the control order expressly prohibited the offender from using a mobile telephone service that had not been approved by the Joint Counter-Terrorism Team. Another term of the control order expressly prohibited the offender from using a public telephone service that had not been approved by the Joint Counter-Terrorism Team.

3. It is clear that the offender knew and understood the requirements of those orders because four days after being served with the order he obtained permission from the Joint Counter-Terrorism Team to use a particular telephone service, that permission was granted. So when the offender breached the control order by using a public telephone on two occasions, one very shortly after the other, and by using a mobile telephone on another occasion he was fully aware that he should not be doing so. He explains his behaviour now as by saying that he was simply naïve. Clearly he did not take the control order seriously, nor it would seem the fact that he was at liberty on bail when he committed the offences for which I must now sentence him.

4. The offender called the same person on each occasion and as the Crown concedes the contents of the discussions between them were trivial. We know that because fortunately procedures were in place which allowed the recording of the telephone conversations. Mr Lange who appears for the offender impressed upon me a finding that these offences were at the lower end of the scale of objective seriousness. I do not agree. What I see is the offender deliberately thumbing his nose at the control order and the authorities who imposed it.

5. The offender travelled some distance from his home in order to use the public telephone and so was prepared to take steps to breach the control order despite being fully aware of its requirements. As I said before the aim of the control order was to protect the public from terrorist acts. The fact that no terrorist act was mentioned in the telephone calls does not really help the offender. Were such conversations to have taken place he would have faced further charges.

6. The offender, as I said, pleaded guilty to these matters. That was only after he was committed for trial. The lateness of the pleas was explained by suggesting that advice needed to be obtained as to whether the control orders could be challenged. If that was successful then they would have been declared void and the charges would have fallen away. There was despite the lateness of the plea however, a willingness to facilitate the course of justice. There could have been a greater willingness of course and in those circumstances the sentence I impose upon the offender will be about 15% less than it would otherwise have been.

7. The offender has been kept in custody since 23 December 2014. An affidavit prepared by him describes his conditions of custody. They are certainly severe. There are considerable restrictions on his movement within gaol as well as restrictions on the opportunity for him to work and be educated. Although it is of course not their design one consequence is that opportunities for rehabilitation with the assistance of counsellors and the like is more limited than would otherwise be the case. A psychologist who interviewed the offender and prepared a report for the Court commented on the relationship between the conditions of custody and the offender’s mental wellbeing. I make no criticism of the Corrective Services authorities at all when I say that the conditions under which the offender are held would not be conducive to the wellbeing of anyone. I have taken into account the possibility, indeed the likelihood that the offender will serve his sentence of imprisonment under such conditions and reduce the sentence I would otherwise have imposed accordingly.

8. The offender was born in Sydney to parents who migrated to Australia many years ago. His parents both worked, his father is a security guard and cleaner and his mother is a process worker. The offender had a happy and uneventful childhood. He regards his parents highly saying that they did the best they could to give him a good upbringing and says that they continue to do so. The offender told the psychologist about his criminal history that there is no link to his childhood it is just the environment he put himself in at different stages of his life. His education and upbringing was fractured at times, largely as a result of the offender’s own behaviour. He however has plans for his future to complete his education and to then work when he can. He spends his many hours alone in custody reading and attempting to plan for the future.

9. In determining the sentence to impose upon this offender general deterrence is clearly of great importance. Control orders of this type must be obeyed. Even making trivial calls such as the offender made divert resources away from the authorities’ attempts to fight terrorism. The ability of the authorities to combat terrorism is significantly enhanced if control orders are followed by those subject to them. Anyone else the subject of a control order needs to understand that if they deliberately breach the order, as the offender has, a sentence of some significance will be imposed upon them.

10. As well as general deterrence, personal deterrence is important in the present case. The offender’s behaviour and the fact that he was on bail show a clear lack of insight into his obligations both as a person on bail and a person subject to a control order. It needs to be brought home to him in the most concrete way that if he is subject to a control order in the future or if there are other forms of restrictions on his behaviour as a result of an order made by the authorities, he needs to do what is required of him. For the reasons I have given I am satisfied that nothing less than a sentence of fulltime custody is necessary.

11. The sentence I impose is as follows. For all three offences I sentence the offender to imprisonment to date from 23 December 2014. I set a head sentence of two and a half years imprisonment but the offender is to be released pursuant to a reconnaissance release order after serving 18 months. Thus that means that the offender is to be released on 22 June 2016.

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Decision last updated: 20 July 2016