R v Musleh (No 4)

[2018] NSWSC 1653

Supreme Court

New South Wales

Medium Neutral Citation:	R v Musleh (No 4) [2018] NSWSC 1653
Hearing dates:	31 October 2018
Decision date:	31 October 2018
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Adjourn the sentence hearing of Mr Musleh, which was listed on Tuesday 6 November 2018, to Friday 7 December 2018 at 10am before me.  (2) Vary order (2) made on 6 August 2018 by extending the time within which the parties are to serve the evidence and submissions on which they propose to rely at the sentence hearing to 5pm on Tuesday 4 December 2018 and direct that a copy of the material be sent to my Associate by the same time and date.
Catchwords:	PRACTICE AND PROCEDURE – need to adjourn sentence hearing because decision of Court of Criminal Appeal following Crown appeal in respect of co-offender not available
Legislation Cited:	Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 6 and 7
Cases Cited:	Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Category:	Procedural and other rulings
Parties:	Regina Muhammed Abdul Karim Musleh (Offender)
Representation:	Counsel: D Staehli SC (Crown) G Scragg (Offender)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Birchgrove Legal (Offender)
File Number(s):	2016/341400

Judgment – EX Tempore

1. On 6 August 2018, I listed the sentence hearing in this matter on Tuesday 6 November 2018. When I listed that matter on that date, I was aware that the Crown appeal against the sentence I imposed on Mehmet Biber was listed for hearing before the Court of Criminal Appeal on 10 August 2018. I did so in the expectation that, having regard to the expedition traditionally accorded by the Court of Criminal Appeal to Crown appeals, the judgment of the Court of Appeal in the matter of R v Biber would be delivered some time before the sentence hearing of Mr Musleh.

2. I arranged for the matter to be listed this morning for mention before me as it appeared unlikely that the Court of Criminal Appeal would make orders and publish reasons before 6 November 2018.

3. It was accepted that Mr Musleh cannot be sentenced before the Court of Criminal Appeal has made orders and published its reasons in respect of the Crown appeal against the sentence imposed on Mr Biber. Mr Biber pleaded guilty to entering a foreign State (Syria) with intent to engage in hostile activity in that foreign State contrary to s 6 of the Crimes (Foreign Incursions and Recruitment Act) 1978 (Cth) (the Act) for which the maximum penalty is 20 years. Mr Musleh pleaded guilty to, and stands to be sentenced for, an offence against s 7 of the Act, for which the maximum penalty is 10 years. Mr Musleh travelled to Syria with Mr Biber. Accordingly, they can be described as co-offenders who were engaged in the same criminal enterprise, although their roles were different. It was common ground that the principles of parity apply to Mr Biber and Mr Musleh although they were charged with, and pleaded guilty to, different offences: see Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30].

4. I have given consideration to whether it is more appropriate to retain the hearing date of 6 November 2018, begin the sentence hearing on that day and then adjourn it part heard for further submissions once the decision of the Court of Criminal Appeal is available. However, I have decided, having heard from the parties, that it would not be in the interests of justice to adopt that course. Mr Crown has informed me that matters were raised in the Court of Criminal Appeal, which may affect the content of the statement of agreed facts and the submissions made by the Crown in relation to those agreed facts.

5. Accordingly, it would seem to me preferable that the sentence hearing as a whole await delivery of the judgment of the Court of Criminal Appeal in the matter of R v Biber rather than for the sentence hearing to proceed in a piecemeal fashion which may not do justice between the parties.

6. For these reasons, and having consulted the parties to determine the availability of their counsel for the sentence hearing, I have listed the sentence hearing for Friday 7 December 2018. This will give the Court of Criminal Appeal further time to make orders and publish reasons in relation to the Crown appeal. It will mean also that Mr Musleh can be sentenced this year. I am concerned not to delay the proceedings any further. The offence was committed in June or July 2013; Mr Musleh was not charged until 15 November 2016. The trial was listed to commence on 19 November 2018 but was vacated when Mr Musleh indicated that he would plead guilty. This led to the date of 6 November 2018 being allocated for the sentence hearing. This date has had to be vacated for the reasons given above.

Orders

7. For the reasons set out above, I make the following orders:

1. Adjourn the sentence hearing of Mr Musleh, which was listed on Tuesday 6 November 2018, to Friday 7 December 2018 at 10am before me.

2. Vary order (2) made on 6 August 2018 by extending the time within which the parties are to serve the evidence and submissions on which they propose to rely at the sentence hearing to 5pm on Tuesday 4 December 2018 and direct that a copy of the material be sent to my Associate by the same time and date.

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Decision last updated: 31 October 2018