Said v The Queen - [2019] NSWCCA 239

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Said v R [2019] NSWCCA 239
Hearing dates: 7 June 2019
Decision date: 11 October 2019
Before: Hoeben CJ at CL at [1];
White JA at [86];
Hamill J at [94]
Decision:
(1)   Leave is granted to the applicant to appeal against sentence.
(2)   The appeal is allowed.
(3)   The sentence imposed by Bellew J on 3 November 2017 is quashed.
(4)   In lieu thereof, the applicant is sentenced to imprisonment for a period of 9 years, commencing 26 May 2016 and expiring 25 May 2025, with a non-parole period of 6 years and 9 months, expiring 25 February 2023.

Catchwords: CRIMINAL LAW – sentence appeal – making documents connected with preparation for a terrorist act – error in failing to have regard to the utilitarian value of the plea of guilty – need to independently re-exercise the sentencing discretion – need for such re-sentence to reflect considerations of general deterrence, protection of the community and denunciation of the offence – appeal allowed and applicant re-sentenced.
Legislation Cited: Crimes Act 1914 (Cth) – Pt 1C, s 16A(2)
Criminal Code 1995 (Cth) – s 101.5(1)
Cases Cited: Huang v R [2018] NSWCCA 57
IM v R [2019] NSWCCA 107
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
Faheem Khalid Lodhi v Regina [2007] NSWCCA 360; 179 A Crim R 470
R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365
Xiao v R [2018] NSWCCA 4; 96 NSWLR 1
Texts Cited: Nil
Category: Principal judgment
Parties: Farhad Said – Applicant
Regina (Cth) – Respondent Crown
Representation:
Counsel:
R Pontello SC/N Bennett – Applicant
N Robinson QC/M England – Respondent
Solicitors:
Zahr Partners – Applicant
Commonwealth Director of Public Prosecutions – Respondent Crown

File Number(s): 2016/161972
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365

Date of Decision:

3 November 2017

Before:

Bellew J

File Number(s):

2016/161972

JUDGMENT

HOEBEN CJ at CL:

Offence and sentence

On 19 July 2017, the applicant pleaded guilty in the Supreme Court to a single count of making a document and the document was connected with the preparation for a terrorist act and he knew of that connection, contrary to s 101.5(1) of the Criminal Code 1995 (Cth) (the Criminal Code). This offence carries a maximum penalty of imprisonment for 15 years and a substantial fine.

On 3 November 2017, the applicant was sentenced to imprisonment for a period of 9 years and 6 months, commencing 26 May 2016 and expiring 25 November 2025, with a non-parole period of 7 years and 1 month expiring 25 June 2023.
The applicant seeks leave to appeal…

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 Said v The Queen

Details

AGLC: Said v The Queen [2019] NSWCCA 239
Case: [2019] NSWCCA 239
Decision Date: 11 October 2019

CaseChat Overview and Summary

In the matter of Said v The Queen, the appellant, a convicted offender, appealed against his sentence for making documents connected with the preparation for a terrorist act. The High Court of Australia was tasked with reviewing the legal issues surrounding the sentence imposed. The central legal issue was whether the original sentencing judge had erred by not adequately considering the utilitarian value of the appellant's guilty plea, and if the court should independently re-exercise its sentencing discretion. The court was also required to consider whether the re-imposed sentence should reflect the principles of general deterrence, protection of the community, and denunciation of the offence.

The High Court determined that the original sentencing judge had indeed failed to give sufficient weight to the utilitarian benefits of the appellant's guilty plea. This omission constituted a material error in the sentencing process. The court emphasised the importance of ensuring that the sentence reflects the full range of relevant considerations, including the value of a guilty plea in expediting justice and reducing the burden on the legal system. The High Court concluded that, as a result of this error, it was necessary to independently re-exercise its sentencing discretion. The re-imposed sentence needed to appropriately balance the principles of general deterrence, protection of the community, and denunciation of the offence, taking into account the appellant's guilty plea.

Following its reasoning, the High Court allowed the appeal and re-sentenced the appellant. The court's re-imposed sentence was intended to ensure that all relevant factors were duly considered, including the utilitarian value of the guilty plea, and that the sentence appropriately reflected the necessary principles of sentencing. The re-imposed sentence was thus a result of the court's independent exercise of its sentencing discretion, taking into account the full context of the case.

Orders