The Court of Appeal today dismissed an appeal by the Commonwealth Director of Public Prosecutions against the sentence imposed on the respondent (ES) on two charges of performing acts preparatory to the commission of 'a foreign incursion offence', contrary to s 7(1)(e) of the Crimes (Foreign Incursion and Recruitment) Act 1978 (Cth).
ES's offending involved him making 11 transfers of money over a 15-month period, totalling almost $16,000, to an American citizen (Karram). The substance of the offence was that ES provided these funds to assist Karram in travelling to Syria and in participating in fighting against the Assad regime.
ES pleaded guilty and was sentenced to a term of imprisonment of 44 days and a two year Community Correction Order ('CCO'). Under the CCO, ES is required to complete 252 hours of unpaid community work, engage in mental health treatment, participate in a community integration program, be supervised by his local community corrections officer and be subject to judicial monitoring.
In rejecting the Director's contention that the sentence was 'manifestly inadequate', the Court of Appeal drew attention to the fact that these 'were not terrorism offences'.
At the time of his offending, the Code contained a number of terrorism offences. Those offences included engaging in a terrorist act, getting funds to, from or for a terrorist organisation, financing terrorism and financing a terrorist. While the respondent was initially charged with terrorism offences, those charges were withdrawn and the offences to which the respondent pleaded guilty were not offences which included the furtherance or support of terrorism or maintenance of a terrorist ideology as an element of the offending.
Undoubtedly, the respondent's offending in the present case was objectively very serious. That said, we agree with the sentencing judge and the Queensland Court of Appeal, who dealt with a similar offence, that an offender such as the respondent who falls to be sentenced in relation to an offence under the Foreign Incursions Act should not be sentenced as if the offence contained a terrorism element. It follows that, in relying upon the respondent's statements about his particular beliefs in relation to killing in the name of Allah or the creation of an Islamic caliphate, the appellant overstated the objective gravity of the offences committed by the respondent to which he pleaded guilty. While the respondent's statements are a matter of serious concern and are properly to be taken into account as part of the matrix of facts that must be synthesized in the sentencing discretion, they are not matters that elevate the objective seriousness of the actual offences.
Finally (so far as the appellant's contentions of specific error are concerned), we turn to the appellant's submission that there was no psychological or other evidence to demonstrate that the respondent had been 'deradicalised'. It may be accepted that there was little (if any) evidence before the judge of any recanting by the respondent of beliefs he held at the time of his offending. The judge, however, did not proceed on the basis that the respondent had been 'deradicalised'. Indeed, the judge (who had evidence before him of the respondent attending 11 sessions with [the psychologist] Ms Toohey, and also of engaging with Sheikh Abdulazim Afifi on at least 30 occasions), in sentencing the respondent, observed that the respondent's rehabilitation 'may involve some form of what some describe as 'deradicalisation'.' We see no error in the judge's approach. The issue of the respondent's radical beliefs fell to be considered as one of the many facts required to be taken into account in the sentencing synthesis. Further, those beliefs had to be viewed within the context of the charged offences. Much of the appellant's submissions focussed upon deradicalisation from a general terrorist ideology which went beyond the ambit of the charged offences. Moreover, as the sentencing judge recognised, there was no evidence that the respondent was a threat to community safety.
Different judges may have imposed different sentences on the respondent. The fact that a judge hearing an appeal might disagree with the sentence imposed is not a basis for overturning that sentence and imposing the judge's preferred sentence.
It must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he did if proper weight had been given to all the relevant circumstances of the offending and the offender.
The Court concluded that the sentence imposed was within the range reasonably open to the sentencing judge:
The judge was faced with a difficult sentencing task: the offending was serious, but there were significant mitigatory factors including the relative youthfulness of [ES], his lack of prior convictions and his conduct between the time of offending and the time of sentencing.
Generally, deterrence (both general and specific), denunciation and just punishment will be significant sentencing considerations in cases involving offending of the kind committed by [ES] in this case. While an offender who commits offences of the kind committed by [ES] might ordinarily expect to receive sentences of imprisonment, having considered all of the relevant matters argued in detail by the parties, we are not persuaded that the sentences imposed by the judge were wholly outside the range reasonably open to him in all of the circumstances of the case.
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