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R v Uweinat

R v Uweinat

Case [2021] NSWSC 1256 11 October 2021

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Uweinat [2021] NSWSC 1256
Hearing dates: 17 September 2021
Date of orders: 11 October 2021
Decision date: 11 October 2021
Jurisdiction: Common Law
Before: Bellew J
Decision:
(1) The offender is convicted of both offences.
(2) In respect of the offence of intentionally advocating the doing of a terrorist act contrary to s 80.2C(1) of the Criminal Code 1995 (Cth) the offender is sentenced to 1 year and 8 months imprisonment commencing on 4 December 2019 and expiring on 3 August 2021.
(3) In respect of the offence of being a member of an organisation knowing that organisation was a terrorist organisation, contrary to s 102.3(1) of the Criminal Code 1995 (Cth) the offender is sentenced to 3 years and 8 months imprisonment commencing on 4 March 2020 and expiring on 3 November 2023.
(4) The total effective sentence is one of 3 years and 11 months imprisonment, commencing on 4 December 2019 and expiring on 3 November 2023.
(5) I impose a single non-parole period of 2 years and 11 months imprisonment commencing on 4 December 2019 and expiring on 3 November 2022.
(6) In light of the fact that the offence contrary to s 102.3(1) carries a maximum penalty of 10 years imprisonment, I warn the offender, pursuant to s 105A.23 of the Code, that an application may be made under Division 105A requiring him to be detained in a prison after the end of his sentence.

Catchwords:
CRIMINAL LAW – Offences – Sentence – Intentionally advocating a terrorist act – Membership of a terrorist organisation – Where the offender was a member of Islamic State and advocated the commission of terrorist acts in accordance with that organisation’s philosophies – Consideration of general principles applicable to sentencing for terrorism-related offences – Where such principles have been developed in the context of sentencing for more serous offending than that committed in the present case – General principles nevertheless applicable – Serious offending committed over a concentrated period of 6 months – Where offender aged 21 at the time of the offending – Offending committed at a time which coincided with the offender’s association with members of an antisocial peer group – Some evidence of link between the offender’s immaturity and his offending – Unchallenged evidence given by the offender of his renunciation of previously held extremist beliefs – Evidence of contrition – Pleas of guilty entered at the earliest possible opportunity – Cautiously favourable prospects of rehabilitation

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code 1995 (Cth)

Cases Cited:
Alou v R (2019) 101 NSWLR 319; [2019] NSWCCA 231
Benbrika v R (2010) 29 VR 593; [2010] VSCA 281
BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
Director of Public Prosecutions (Cth) v Besim [2017] VSCA 158
Director of Public Prosecutions (Cth) v Fattal [2013] VSCA 276
Director of Public Prosecutions (Cth) v MHK(A Pseudonym) (No 1)

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 Uweinat

Details

AGLC: R v Uweinat [2021] NSWSC 1256
Case: [2021] NSWSC 1256
Decision Date: 11 October 2021

CaseChat Overview and Summary

The case of R v Uweinat involved a defendant charged with advocating terrorist acts as a member of the Islamic State. The case was heard in the High Court of Australia, which was asked to consider the principles applicable to sentencing for terrorism-related offences. The defendant, aged 21 at the time of the offence, had committed the serious acts over a period of six months, during which he was associated with an antisocial peer group. The court was tasked with determining the appropriate sentence for these offences, taking into account the general principles developed for terrorism-related offences and applying them to this particular case, despite the defendant's age and the fact that the offences were less severe than those typically considered in these contexts.

The primary legal issues before the court were the principles that should guide sentencing in terrorism-related cases, and how these principles should be applied to the specific circumstances of the defendant. The court considered the principles established in previous cases involving more serious offences, and examined whether these principles could be adapted to the current case. The court also had to weigh the defendant's age, the nature of his offending, and the evidence of his renunciation of extremist beliefs and contrition. The court needed to balance these factors with the seriousness of the offence and the need for deterrence and protection of the community.

In reaching its decision, the court held that the general principles applicable to sentencing for terrorism-related offences, while developed in the context of more serious cases, were still relevant and could be applied to the present case. The court acknowledged the defendant's age and the evidence of his immaturity and association with an antisocial peer group, but emphasised the seriousness of the offending over the six-month period. The court also considered the defendant's early pleas of guilty and the evidence of his renunciation of extremist beliefs and contrition. The court concluded that, while the defendant's prospects of rehabilitation were cautiously favourable, the seriousness of the offending and the need for deterrence meant that a significant custodial sentence was necessary. The court ordered that the defendant be imprisoned for a term reflecting the gravity of the offences and the principles of sentencing for terrorism-related crimes.

Orders