R v Musleh (No 5) - [2018] NSWSC 1927

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Musleh (No 5) [2018] NSWSC 1927
Hearing dates: 7 December 2018
Decision date: 13 December 2018
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) The offender is convicted of the count on the indictment.

(2) The offender is sentenced to a term of imprisonment of 2 years and 1 month commencing on 13 August 2018 and expiring on 12 September 2020.
(3) Make a recognizance release order pursuant to
s 20(1)(b) of the Crimes Act 1914 (Cth) directing that on 12 August 2019, after serving 1 year of that sentence, on giving surety in the sum of $100 without security, the offender be released upon recognizance to be of good behaviour for the remainder of the term, being 1 year and 1 month expiring on 12 September 2020.
Catchwords: CRIMINAL LAW – sentencing – assisting others to enter Syria to engage in armed hostilities – plea of guilty – age and immaturity of offender – delay in charging – good prospects of rehabilitation – need for general deterrence and punishment
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 33
Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 6, 7
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1914 (Cth), ss, 16A, 16BA, 16F, 17A, 19AC, 19AF, 20
Cases Cited: Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146
Blanco v R [1999] NSWCCA 121; (1999) 106 A Crim R 303
Dunn v R [2018] NSWCCA 108
Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31
Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; [2004] HCA 46
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Alqudsi [2016] NSWSC 1227
R v Biber [2018] NSWCCA 271
R v Biber [2018] NSWSC 535
R v Cartwright (1989) 17 NSWLR 243
R v Lamella [2014] NSWCCA 122
R v Mohamed [2016] VSC 581
R v Webb [2004] NSWCCA 330
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
Texts Cited: Hugh Dillon (ed.); “Presuming Innocence”, Advocacy and Judging: Selected Papers of Murray Gleeson, (2017, Federation Press)
Category: Sentence
Parties: Regina
Muhammed Abdul-Karim Musleh (Offender)
Representation:
Counsel:
D Staehli SC/R Glover (Crown)

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.

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Details

Case: [2018] NSWSC 1927
Decision Date: 13 December 2018

CaseChat Overview and Summary

The case involved the defendant, Musleh, who pleaded guilty to charges of assisting others to enter Syria for the purpose of engaging in armed hostilities. The matter was heard in the Supreme Court of Queensland. The central issue before the court was to determine the appropriate sentence for the defendant, considering various mitigating and aggravating factors.

The court needed to weigh the severity of the offence, the age and immaturity of the defendant, the delay in bringing the charges, and the defendant's prospects of rehabilitation against the need for general deterrence and punishment. The defendant's age at the time of the offence was a significant mitigating factor, as was the delay in charging. The court also considered the defendant's prospects of rehabilitation and the need to deter similar conduct in the future.

The court acknowledged the defendant's age and immaturity, which reduced the culpability, and the delay in bringing the charges, which was partly due to jurisdictional issues. However, the gravity of the offence and the need for general deterrence were also crucial. The court concluded that while the defendant's prospects of rehabilitation were good, the need for punishment and deterrence warranted a custodial sentence. The court sentenced the defendant to a term of imprisonment, with specific consideration given to the defendant's age and the mitigating circumstances.

Orders