Terrorism Offences: Judges Must Properly Consider Mitigating Factors During Sentencing

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By Paul Gregoire and Ugur Nedim

A 15-year-old male came to the attention of the AFP’s NSW Joint Counter Terrorism Team (JCTT) in May 2015, as he’d been accessing violent Islamic extremist material online.

The AFP’s National Disruption Group (NDG) then got in touch with the teen’s family and suggested his father make a plan to divert his son’s attention. The NDG recommended more time be spent with his peers, although his father countered that his son was working 12 hours a day, six days a week.

But by the following April, the then 16-year-old began searching for extremist material on his phone and using an encrypted messaging app to contact likeminded individuals, informing two that he was a Muslim Australian supporter of the Islamic State, who wanted to attack an Anzac day event.

Unbeknownst to the teen, however, the two individuals he was asking advice on how to make a bomb and obtain a gun, just happened to be overseas covert agents. The boy further told these authorities that he had a “set area and date for an attack” in order to “terrorise the infidels”.

The agents contacted an AFP officer, who also commenced communicating with the teen, who became suspicious about this third agent. But on 24 April, he contacted him, asking for bombmaking materials in a hurry as he had no time. And the JCTT immediately took the boy into custody that day.

The weight of terror crimes

On 24 March 2017, in the NSW Children’s Court, the teenager pleaded guilty to one count of conspiracy to do an act in preparation for, or planning, a terrorist act, contrary to sections 101.6(1) and 11.5(1) of the Criminal Code Act 1995 (Cth).

The maximum penalty for this crime is life imprisonment.

Before the courts were 500 pages of evidence, excluding submissions, and extremist data that had been found on the boy’s phone. The teen had been cooperative in handing over passwords, and four experts gave evidence about his depressive disorder, which was consistent with long-term bullying.

On summarising her sentencing reasons, NSW Supreme Court Justice Megan Latham referred to the maximum penalty, federal offence sentencing provisions contained in section 16A of the Crimes Act 1900 (NSW) and the principles for terrorism sentencing outlined in 2014’s R versus Alou (No 4).

In Alou, Justice Peter Johnson explained that of primacy in terrorism sentencing are “the protection of the community, the punishment of the offender, the denunciation of the offending and both specific and general deterrence”, while mitigating factors hold less weight, including that of youth.

Her Honour then sent the teenager away for 12 years, with non-parole set at 9 years. This took into account a 20 percent sentencing discount due to the utilitarian value of his early guilty plea.

Justice Latham recognised the offender had been assaulted whilst in prison due to his specific crime and took this non-court imposed or extra curial punishment into account and found special circumstances that justified his detention being served in a juvenile facility until the age of 21.

Neglecting the client

Notice of intention to appeal the teen’s case expired in 2019. But his criminal defence lawyers told him at an earlier date that they were filing to appeal. But it wasn’t until he was transferred to Goulburn’s High Risk Management Correctional Centre in late 2020, that the law firm told him they’d dropped his case.

However, after explaining what had happened to Legal Aid New South Wales solicitor Stephen Eccleshall in regard to appealing in February 2022, both the inmate and the lawyer presented sworn affidavits to the court in April 2023, which were accepted and an extension of time to appeal was permitted.

The young offender then appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 16 August this year.

The inmate based his case on four grounds: the judge made an error in assessing objective seriousness, had ignored the subjective case, applied the principles relating to sentencing for terrorism offences in an “undiscerning” way and that the sentence was manifestly excessive.

A question of objective seriousness

NSWCCA Justices Mark Leeming, Natalie Adams and Hament Dhanji pointed out that Justice Latham had assessed the objective seriousness of the crime to be “above the low end of the range of objective gravity”, and that the objection is that it should have been “at the low end of the range”.

Their Honours pointed out that the teen had been found in possession of violent extremist materials, had repeatedly contacted those he thought were Islamic State adherents over seven days, asking them for assistance with a bomb and a gun and had selected a target for a terror attack.

The teen had even set up a meeting with the third agent in order to obtain such materials but didn’t show up due to his suspicions. And his conviction relates to planning and preparing a terror attack and the serious penalties applying to that don’t require having to have committed the act.

“We are satisfied that although it would have been open to her Honour to have assessed the objective seriousness as being towards the low end of the range, no error is disclosed in the fact that she did not,” their Honours said, adding that, therefore, ground one was not made out.

The subjective case

In terms of his subjective case, the appellant argued that the judge had neglected to mention three aspects relating to his specific case: prior offending and potential reoffending, principles relating to sentencing children, and whether his youth or mental health condition reduced moral culpability.

Their Honours raised section 16A(2)(m) of the Crimes Act 1914 (Cth) that sets out that in determining a sentence made in respect to a federal offence, it is mandatory the court take into account “the character, antecedents, age, means and physical or mental condition of the person”.

The appeals court found that despite a plethora of information regarding the teen’s subjective case, Justice Latham did not address his lack of prior offending nor assessment of reoffending.

In terms of the child sentencing principles set out in section 6 of the Children (Criminal Proceedings) Act 1987 (NSW), their Honours found that although the trial judge didn’t spend much time addressing them, it couldn’t be said she “overlooked them completely”.

And whether Justice Latham did address youth and mental illness having had the effect of reducing moral culpability, although she did say these aspects “warrant considerable amelioration”, their Honours found that she went on to “ultimately make no finding in relation” to these matters.

So, ground two was made out and resentencing was necessitated.

Liberty forthcoming

The NSWCCA justices asked that if an undiscounted 15 years is not excessive for offending above low range objective gravity, by a 16-year-old suffering a mental illness, who was of prior good character and had good prospects for reform, then how high would it be if midrange offending was involved?

“To our minds, there is simply not enough room on the scale for readily foreseeable offending, which is considerably more culpable than the applicant’s offending, if 15 years imprisonment for this offending by this teenage boy is within the range,” their Honours added.

The justices took into account the section 16A principles for sentencing in regard to federal offences and took as their guidepost that the terror offence in question carries life imprisonment, which underscores the seriousness of the crime.

Their Honours further stated that the young man was placed in the highest security unit on turning 21, despite a doctor’s report advising against it during his trial, and the inmate was made to serve 20 months within the extreme conditions of the High Risk Management Correctional Centre.

Numerous other examples were before the court, including that he’d been downgraded to a medium security prisoner, that he’d undertaken courses, he had a record of good behaviour whilst inside and that Corrective Services NSW had assessed him as having given up his extremism.

On 15 September, the NSWCCA resentenced the young man to 7 years and 6 months prison time, with non-parole set at 5 years, 7 months and 15 days. This reflected a 25 percent discount for his early guilty plea.

And the head sentence actually expires on the 23rd of next month.

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