R v Shoma (No 2) - [2021] VSC 797

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0162

THE QUEEN	Crown
v
MOMENA SHOMA	Accused

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 October 2021
DATE OF SENTENCE:	3 December 2021
CASE MAY BE CITED AS:	R v Shoma (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 797

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CRIMINAL LAW – Sentence – Guilty plea to engaging in a terrorist act and membership of a terrorist organisation – Accused already serving 42 year sentence for engaging in a terrorist act at the time of the offences – Prison offence – Limited injury to victim – No remorse – Very poor prospects of rehabilitation – Sentenced to total effective sentence of 12 years imprisonment – Partial cumulation on current custodial sentence - R v Shoma [2019] VSC 367 – Criminal Code Act (Cth) ss 101.1, 102.3, 105A.23, Crimes Act 1914 (Cth) ss 16A, 16B, 17A, 19, 19AG.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B Sonnet	Commonwealth Director of Public Prosecutions
For the Accused	Mr T Marsh	Victoria Legal Aid

HER HONOUR:

Introduction

Momena Shoma, you have pleaded guilty to engaging in a terrorist act on 30 October 2021 (charge 1) and being a member of a terrorist organisation, namely Islamic State (‘IS’), between 4 July 2019 and 30 October 2020 (charge 2).

The maximum penalty for charge 1 is life imprisonment.[1] The maximum penalty for charge 2 is ten years imprisonment.[2]
[1]Criminal Code Act 1995 (Cth) (‘the Code’), s 101.1.
[2]The Code, s 102.3.

On 5 June 2019, Justice Taylor of this Court sentenced you to 42 years imprisonment for the offence of engaging in a terrorist act.[3] The offences to which you have pleaded guilty before me occurred at Dame Phyllis Frost Centre (‘DPFC’) during that term of imprisonment.
[3]R v Shoma [2019] VSC 367.

In considering the matters put forward during the plea hearing I have had regard to the documents tendered by the Crown, including a plea opening,[4] submissions on legal principles,[5] a table of comparative cases,[6] and a victim impact statement from Kailee Mitz.[7] I have also had regard to the written submissions tendered on your behalf[8] and the oral submissions made by each party.
[4]‘Summary of Prosecution Opening for Plea’ dated 30 July 2021 (‘Plea Opening’).
[5]‘Prosecution Submissions on Sentence’ dated 30 August 2021 (‘Crown Submissions’).
[6]‘Comparative cases: sentences for offences against ss 101.1 (act of terrorism) and 101.6 (acts in preparation for a terrorist act) of the Criminal Code’ filed 31 August 2021 (‘Comparative Cases Table’).
[7]Dated 16 August 2021.
[8]‘Submissions on Plea’ dated 11 August 2021 (‘Defence Submissions’).

Summary of your offending

There was no dispute about the factual basis of the offences set out in the Crown’s plea opening.

Background

The plea opening includes detailed information about the foundation of IS but I will not repeat that information here, other than to note that IS is a listed terrorist organisation.[9] It is variously known as…

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 Shoma (No 2)

Details

AGLC: R v Shoma (No 2) [2021] VSC 797
Case: [2021] VSC 797
Decision Date: 3 December 2021

CaseChat Overview and Summary

Shoma was sentenced in the Supreme Court of Victoria for engaging in a terrorist act and membership in a terrorist organisation. Shoma had already been serving a 42-year sentence for a previous terrorist act when these offences were committed. The court had to decide on an appropriate sentence considering Shoma's current sentence, the nature of the new offences, the lack of remorse, and Shoma's very poor prospects of rehabilitation. The court had to balance the need for punishment and deterrence with Shoma's already lengthy custodial sentence.

The court considered the principles of sentencing in the Criminal Code Act and Crimes Act. It recognised that Shoma's new offences were serious but also noted that the victim suffered only limited injury. The court found that partial cumulation was appropriate due to Shoma's already lengthy sentence and poor prospects of rehabilitation. The court concluded that a sentence of 12 years, to run concurrently with the existing sentence, was appropriate. This sentence reflected the seriousness of the new offences while taking into account Shoma's current custodial sentence and other relevant factors.

The court's decision highlighted the importance of considering the totality of a defendant's sentence and the need for proportionality in sentencing. The court's approach balanced the need for punishment and deterrence with the realities of Shoma's current sentence and prospects of rehabilitation. The final orders confirmed Shoma's sentence of 12 years, to run concurrently with the existing sentence.

Orders