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Judgment summary - DPP (Cth) v MHK (a pseudonym) [2017] VSCA 157

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 7 years’ imprisonment with a non-parole period of 5 years and 3 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, and prepared, to build an improvised explosive device (‘IED’), and to detonate it in a public area, with the aim of killing innocent civilians.  This mass killing was to have been carried out in order to advance the cause of Islamic State (‘IS’).

The respondent was aged 17 at the time of the offending. During the lead-up to his planned attack, he had communicated regularly via an online messaging application with a British jihadist in the United Kingdom. During these communications, the two had discussed planning and preparation for the attack.

On the plea, the respondent gave evidence that, since his arrest, he had entirely renounced his support for IS.

In sentencing the respondent, his Honour found that it was only the intervention of the police that had prevented him from carrying out the planned attack.

The sentencing judge gave careful consideration to the respondent’s personal circumstances. He noted that the educational support that he had received while on remand, together with the support of his family, had had a ‘transformative effect’ upon him. He accepted that the respondent’s plea of guilty had been entered at an early stage, and that it was accompanied by a degree of genuine remorse. However, that remorse was not entirely unqualified, given that he believed that his arrest had been a sign from God, and that it was only the intervention of the police that had stopped him from carrying out his plan.

The Director appealed on the sole ground that the sentence was manifestly inadequate.  

The Court said that the starting point for consideration was the maximum penalty for the offence, which was life imprisonment. The culpability of an offender was not just to be measured by how close he or she has come to committing the ultimate act of terror, but also by appreciating the nature and extent of the act itself that was contemplated.

The Court said that the respondent had shown a clear intent to assemble and use one or more IEDs for the purpose of causing widespread death and injury. His acquisition of a large quantity of screws and shrapnel, to be used in the explosion or explosions that were to take place, made it clear that this was his aim.

The Court characterised the respondent’s moral culpability as very grave. There was no hint of hesitation or doubt in his communications with the British jihadist.

Further, despite the respondent’s youth, it was clear that he had had the benefit of a good upbringing, and was old enough to have had a full appreciation of the enormity of his planned attack. In any event, the Court said, given the nature of the respondent’s offence, and the purposes of the relevant provision, such mitigating factors as were present could only be given limited effect. The principles of general deterrence and protection of the community had to be given substantial, if not primary, weight.
As terrorism cases of this kind were at the apex of serious crimes, factors such as rehabilitation and youth should be given substantially less weight than they might be accorded in other forms of offending. Further, the Court noted that such steps as the respondent had taken to rehabilitation were far from complete.

The Court found that, taking into consideration the objective gravity of the offence, as well as the importance in sentencing of denunciation and general deterrence, the sentence imposed below was manifestly inadequate.

The Court set aside the sentence and non-parole period imposed below. In lieu thereof, the respondent was sentenced to a term of 11 years’ imprisonment with a non-parole period of 8 years and 3 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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