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Judgment summary - DPP (Cth) v Besim [2017] VSCA 158

The Court of Appeal (Warren CJ, Weinberg and Kaye JJA) today allowed an appeal brought by the Commonwealth Director of Public Prosecutions against the adequacy of a sentence of 10 years’ imprisonment with a non-parole period of 7 years and 6 months.

The respondent had pleaded guilty in the Trial Division to having done acts in preparation for, or planning, a terrorist act, contrary to s 101.6 of the Criminal Code 1995 (Cth). He had planned to drive his car into a police officer performing duties at Anzac Day 2015 commemorations, and immediately thereafter behead him. This attack was said to have been carried out in order to advance ‘violent jihad’.

The respondent was aged 18 at the time. During the lead-up to his planned attack, he had communicated regularly via an online messaging application with ‘S’, a 14 year old boy living in the United Kingdom. The respondent had been told, falsely, that S was an influential religious figure, and a married man. Through these discussions, the respondent and S had discussed, in detail, the plan for the attack. S had also ‘educated’ the respondent as to how to go about achieving Islamic State objectives.

In sentencing the respondent, the judge noted the ‘terrifying and evil’ nature of the planned attack. However, his Honour added that, in his view, the respondent’s moral culpability was less than that of the co-offenders in DPP (Cth) v Fattal, who had planned to attack an army base in Sydney, and presumably therefore warranted a lesser sentence than those imposed in that case.

The sentencing judge also concluded that there was a ‘reasonable possibility’ that the respondent may not, ultimately, have gone through with his planned attack. He based that finding upon a single passage within a message that had passed between the respondent and S. He noted, however, that whether or not this was so, this had been a small consideration in his overall assessment of the offence.

The sentencing judge said that he had moderated the sentence imposed on the basis of the respondent’s personal circumstances. He had accepted that the respondent’s youth and immaturity were significant mitigating factors. Further, although there was no direct evidence that the respondent had renounced violent jihad, his Honour was prepared to give the respondent some credit, in that regard, through a finding of enhanced prospects of rehabilitation. In addition, credit was given for the respondent’s plea of guilty, and such contrition as he had displayed.

The Director appealed on three grounds. The Court considered two of those grounds to be largely subsumed under the Director’s broader contention that the sentence imposed was manifestly inadequate.

The Court said that the starting point when considering that ground was the maximum penalty for the offence, which was life imprisonment. An offender’s culpability was not just to be measured by how close he or she came to committing the particular act of terror, but also by appreciating the nature and extent of the act contemplated.

Further, the Court said that, given the objective seriousness of the respondent’s offence, and the purposes of the relevant provision, the effect of mitigating factors on the sentence to be imposed should be limited. The principles of general deterrence and protection of the community must be given substantial, if not primary, weight. As this was a case of grave criminality, factors such as rehabilitation and others of a personal nature, including youth, should be given substantially less weight than might be the case in other forms of offending.

The Court set aside the sentence and non-parole period imposed below. In lieu thereof, the respondent was sentenced to a term of 14 years’ imprisonment with a non-parole period of 10 years and 6 months.

NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

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Author: Supreme Court of Victoria
Publisher: Supreme Court of Victoria
Date of Publication: June 2017
Copyright: Supreme Court of Victoria, 2017


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