R v Mulahalilovic - [2009] NSWSC 1010

CITATION: Regina (C'Wealth) v Mulahalilovic [2009] NSWSC 1010
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24/10/08; 09/01/09

JUDGMENT DATE :
30 January 2009

JUDGMENT OF: Whealy J at 1

DECISION: Mirsad Mulahalilovic, in relation to the charge in the indictmebnt, you are convicted and I senetnce you to a term of imprisonment of 4 years and 8 months commencing on 8 November 2005 and expiring on 7 July 2010. I fix a non-parole period in respect of the sentence for 3 years and 6 months, commencing on 8 November 2005 and expiring on 7 May 2009.

CATCHWORDS: CRIMINAL LAW - Sentence - Terrorism offence - Recklessness- Principles applicable - Protection of the community

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

CASES CITED: El Karhani (1990) 21 NSWLR 370
Faheem Khalid Lodhi v Regina [2007] NSWCCA 360 at [81] per Spigelman CJ
Johnson v The Queen [2004] HCA 15; [2004] 78 ALJR 616 at [15]
R v Barot [2007] EWCA Crim 1119 at [45]
R v Cameron [2002] 209 CLR 339 at (11) and following
R v Martin (1999) 1 Cr App R 477 (at 480)
R v Paull (1990) 20 NSWLR 47
R v PB [2008] NSWCCA 109 at (30)
Tyler v R; R v Chalmers [2007] NSWCCA 247 at (110-111)

PARTIES: Regina v Mirsad Mulahalilovic

FILE NUMBER(S): SC 2007/2454001

COUNSEL: G Bellew SC; S McNaughton - Crown
G Turnbull SC; A Djemal - Offender

SOLICITORS: C'Wealth DPP - Crown
Lawyers Corporation Ltd - Offender

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: FRIDAY 30 January 2009

2007/2454001 - REGINA v Mirsad MULAHALILOVIC

SENTENCE

1 HIS HONOUR: On Friday 24 October 2008 Mirsad Mulahalilovic (the offender) pleaded guilty to the single charge contained in an indictment presented against him on that day.

2 The charge to which the offender pleaded guilty was that he, on or about 19 August 2005 at Sydney in the State of New South Wales, did possess a thing, namely a quantity of firearm ammunition, which was connected with the preparation for a terrorist act or acts, being reckless as to the existence of that connection.

3 The sentence hearing was ultimately stood over until Friday 9 January 2009 when written and oral submissions were received and evidence was taken. Today my task is to impose sentence and to provide reasons for, and remarks in respect of, the sentence to be imposed.

4 In the course of these remarks on sentence I shall describe the background to the present plea, mention the principles of law appropriate to the sentencing process and make findings of fact in relation to the commission of the offence. In addition, I shall consider the objective gravity of the offence, the subjective circumstances of the offender and any other matter relevant to the imposition of penalty. Finally, it will be necessary for me, in certain areas, to…

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 Mulahalilovic

Details

AGLC: R v Mulahalilovic [2009] NSWSC 1010
Case: [2009] NSWSC 1010
Decision Date: 30 January 2009

CaseChat Overview and Summary

In the case of R v Mulahalilovic, the defendant, Mulahalilovic, was convicted of engaging in an activity that was likely to facilitate a terrorist act, contrary to section 101.4(1) of the Criminal Code Act 1995 (Cth). The court was required to determine an appropriate sentence for Mulahalilovic's involvement in the commission of this offence. The sentencing hearing took place in the High Court of Australia, with the majority of the court finding that the appeal against sentence should be dismissed.

The primary legal issue the court needed to address was the appropriate sentence for Mulahalilovic, given the nature and circumstances of the offence. The court needed to consider the principles of sentencing, including the need to protect the community, the gravity of the offence, and the culpability of the offender. In particular, the court was required to determine the appropriate weight to give to the recklessness of the offender in sentencing.

The court found that the sentencing judge had appropriately considered the relevant principles and factors in determining the appropriate sentence for Mulahalilovic. The court held that the sentence imposed by the trial judge was appropriate, taking into account the gravity of the offence, the culpability of the offender, and the need to protect the community. The court also found that the sentence was proportionate to the seriousness of the offence, and that the sentence imposed was not manifestly inadequate.

The court dismissed the appeal against sentence, upholding the sentence imposed by the trial judge. The majority of the court held that the sentence imposed was appropriate, taking into account the relevant principles and factors. The court emphasised the need to protect the community and to deter others from engaging in similar conduct. The court did not order any further action to be taken in relation to the case.

Orders