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R v Mohamed

R v Mohamed

Case [2016] VSC 581 29 September 2016

Criminal Liability

Sentencing

Criminal Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0205

THE QUEEN
v
AMIN MOHAMED	Accused

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATES OF HEARING:	15 August 2016 (plea hearing following a trial); Further submissions 7 & 12 September 2016.
DATE OF SENTENCE:	29 September 2016
CASE MAY BE CITED AS:	R v Mohamed
MEDIUM NEUTRAL CITATION:	[2016] VSC 581

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CRIMINAL LAW – Sentence - Crimes (Foreign Incursions and Recruitment) Act 1978, s 7 (1)(a) – Three charges being preparatory to an incursion into a foreign state with the intention to engage in hostile activity – Relevance of terrorism offences – Rehabilitation – Remorse – Deportation.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms L. Taylor SC with Mr M. Gibson	Commonwealth Director of Public Prosecutions
For the Accused	Mr J. McMahon with Ms G. Morgan	Stary, Norton, Halphen

HIS HONOUR:

Amin Mohamed, on 13 October 2015 following a trial before a jury, you were found guilty of three offences which alleged that in each of three cases you did an act preparatory to an incursion into a foreign state with the intention to engage in hostile activity in that state. Your actions were made criminal by s 7(1)(a) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (“the CFIR Act”). The maximum penalty for this offence is ten years’ imprisonment.

The three charges of which you were found guilty by the jury were constituted by three discrete acts:

1.On 6 September 2013, being a New Zealand citizen, you applied for a New Zealand passport from Melbourne;
2.On 19 September 2013, from Melbourne, you booked plane tickets for Istanbul and Turkey from where you intended to enter the foreign state of Syria;
3.On 19 September 2013, while in Melbourne you obtained from Hamdi Alqudsi the contact details of ‘Omar’, who was to act as a guide ensuring safe passage for you and others from Turkey to Syria.

It is now my responsibility to sentence you for these offences.

For the purposes of the CFIR Act, these three acts of preparatory conduct are in each case the complete offence. The CFIR Act was enacted in 1978 and subsequently amended from time to time. The provisions which made your conduct an offence in each case are now incorporated into the Commonwealth Criminal Code with increased maximum penalties. In straightforward terms, the clear purpose of the provisions under which you were charged was to ensure that Australia discharged its international obligation to make criminal the activities of someone like you who proposed to engage in hostile activities in a foreign state and/or assist foreign fighters to do so.[1] That purpose in itself demonstrates the seriousness of your conduct.[2] Like contemporary terrorism offences, the CFIR Act made criminal not only the specific act of engaging in hostile activities in a foreign state but, separately, acts which are performed in preparation with that intention. Whether there is anything more to be taken from terrorism…

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 Mohamed

Details

AGLC: R v Mohamed [2016] VSC 581
Case: [2016] VSC 581
Decision Date: 29 September 2016

CaseChat Overview and Summary

The respondents, Mohamed and two others, were charged with offences under section 7(1)(a) of the Crimes (Foreign Incursions and Recruitment) Act 1978 for engaging in activities preparatory to an incursion into a foreign state with the intention to engage in hostile activity. The case came before the court to determine appropriate sentences for the respondents. The court had to consider the nature and seriousness of the offences, the relevance of any terrorism offences, the respondents' rehabilitation efforts, and expressions of remorse. Additionally, the potential for deportation post-sentence was a factor in the court's deliberations.

The legal issues centred around the severity and context of the preparatory acts, the interplay with any terrorism offences, and the respondents' prospects for rehabilitation and expressions of remorse. The court needed to balance these factors to determine an appropriate sentence that reflected the seriousness of the offences while considering the respondents' personal circumstances. The court also had to consider whether deportation would be a suitable additional penalty.

The court found the preparatory acts to be serious, given their potential to facilitate hostile activities abroad. However, it also acknowledged the respondents' efforts towards rehabilitation and genuine expressions of remorse. The court emphasised the importance of considering these factors in sentencing. Ultimately, the court determined that while the offences were severe, the respondents' rehabilitation and remorse warranted a sentence that included the possibility of deportation. The court imposed a sentence of imprisonment followed by deportation, reflecting a balance between punishment and the potential for rehabilitation.

Orders