Naizmand v R

The findings of the sentencing judge

1. In the absence of any evidence to explain the applicant's motivation in accessing the prohibited material in breach of the control order, and after rejecting his account to Dr Nielssen of his limited ability to speak Arabic (in part because of the nature of the material he accessed and the material seized under the search warrant), the sentencing judge was satisfied that the applicant believed in the extremist ideology the videos promoted, including the activities of Islamic State, and was willing to act upon or encourage others to act upon those beliefs.
2. The sentencing judge was also satisfied that the applicant knew of the obligations imposed on him under the control order, and that the accessing of the prohibited material on five occasions over six weeks was in deliberate contravention of those orders. His Honour also found that the content of the material became progressively more disturbing in that period.
3. His Honour was ultimately satisfied that the offending was in the mid range of objective seriousness. With the object of the issue of a control order under s 104.4 of the Criminal Code to address the circumstances which may render the carrying out of the terrorist act more likely, the sentencing judge considered that the sentence to be imposed needed to reflect the principle of general deterrence. As His Honour remarked, the legislation is intended to bite long before a person's conduct manifests in violence (see R v Touma [2008] NSWSC 1475 at [80]) and, further, that those who are subject to a court-imposed control order should be aware that if the order is deliberately breached they will be met with a significant sentence of imprisonment (see R v Mo (No 1) [2016] NSWDC 144 at [9] per Berman DCJ).
4. His Honour was also satisfied that the sentence to be imposed on the applicant needed to reflect the need for specific deterrence in circumstances where the applicant has a history of poor compliance with restrictions placed upon his freedom of movement and association and where his deliberate defiance of the control orders was unexplained and his contrition unexpressed.

The sentence appeal

1. There is no challenge to any of the findings of the sentencing judge or to the aggregate sentence as excessive. The sole ground of appeal concerns the question whether the sentencing judge took into account utilitarian considerations when allowing a 15 per cent discount for the applicant's pleas of guilty.
2. That question arises following the decision of this Court in Xiao v R [2018] NSWCCA 4. In that case the Court determined that in sentence proceedings governed by s 16A of the Crimes Act 1914 (Cth) a sentencing judge is entitled to take the utilitarian value of a plea into account under s 16A(2)(g) when sentencing. Section 16A(2)(g) is in the following terms: 16A Matters to which court to have regard when passing sentence etc. - federal offences (1) … (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: … (g) if the person has pleaded guilty to the charge in respect of the offence - that fact; …
3. At [277]-[278] the Court in Xiao concluded that the legislature should be taken to have intended that a plea of guilty to a Commonwealth offence is not only a source of evidence of an offender's remorse and contrition and an indication of a subjective willingness on the part of an offender to facilitate the course of justice, but that pleas of guilty should be encouraged as having the utilitarian or objective value of saving the time and cost to the community of a contested trial. The Court held that to the extent that previous authorities provide to the contrary, they should not be followed.
4. The Court also considered the related question whether in assessing the discount to be given for the plea of guilty a sentencing judge should specify the quantum of the discount. As to that question the Court noted at [280] that: Section 16A(2)(g) neither requires nor prohibits the specification of a discount…
5. The Court went on to say at [280] that … once it is accepted that s 16A allows a sentencing judge to give a discount to the sentence which would otherwise be imposed, it seems to us desirable that, in the interests of transparency, such discounts be specified. However, there is no obligation on the sentencing judge to do so, and a failure to do so would not of itself amount to error.
6. The applicant was sentenced before the decision in Xiao. With this Court having determined that when sentencing for a Commonwealth offence a sentencing judge is to have regard to the utilitarian value of a plea of guilty, the Crown, as respondent to the applicant's sentence appeal, accepted that his Honour was in error after the decision in Xiao in disregarding the utilitarian value of the applicant's pleas of guilty. The relevant passage from his Honour's sentencing remarks is set out below: [67] The offender pleaded guilty. For Commonwealth offences the Court must consider the offender's willingness to facilitate the course of justice and not the utilitarian value of the plea of guilty: Cameron v The Queen (2002) 209 CLR 339 at [14]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]-[28]. That enquiry may reveal whether the plea was a recognition of the inevitable or truly motivated by willingness to facilitate the course of justice: Lee v R [2012] NSWCCA 123 at [58]. The Crown case was a strong one. The offender's plea has saved the need for witnesses to be called at trial and that can be taken into account: Cameron at [79]. I am satisfied that the offender's plea indicates an acceptance of responsibility for his actions [and] was motivated in part by a willingness to facilitate the course of justice. The appropriate discount is 15%. [Emphasis added.]
7. The Crown submitted, however, that in the highlighted section of the remarks extracted above his Honour appears to have given weight to a characteristic feature of what is encompassed by the utilitarian value of a guilty plea. In the result, the Crown submitted that although this Court would find that his Honour was in error in following Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6, he had regard to at least one aspect of the utilitarian value of a plea of guilty identified by Kirby J in Cameron at [79] when appointing the discount for the pleas at 15 per cent. The paragraph his Honour cited from Cameron reads: Secondly, the suggestion by the Court of Criminal Appeal that there was no saving to the administration of justice in the Court of Petty Sessions by virtue of the appellant's plea was, with respect, inaccurate. By pleading guilty before the preliminary hearing, it was possible to vacate immediately the day set aside for that purpose. Time of the magistrate was thereby saved. So was the time of the prosecutor and the Legal Aid representatives. The witnesses who would otherwise have been required at the preliminary hearing were no longer needed. Inconvenience and public cost were spared. These are all considerations which, in the public interest, it was proper for a sentencing judge to take into account in considering the discount that should be given for a plea of guilty, and in particular where such a plea has been entered as soon as it became reasonably practicable to do so.
8. Mr Odgers SC submitted that the sentencing judge's reference to the saving of the need for witnesses to be called at a trial was simply to exemplify what his Honour accepted was the applicant's subjective willingness to facilitate the course of justice by his pleas of guilty, not their utilitarian value, and that it was the subjective aspect of his pleas that attracted the discount of 15 per cent. Mr Odgers submitted that in circumstances where his Honour was categorical in making no allowance for the utilitarian value of the plea, error is made out and this Court is obliged to re-sentence the applicant.
9. While the Crown's analysis is not without force, I am of the view that error of the kind identified by Mr Odgers has been made out. That being so, this Court is obliged to exercise the sentencing discretion afresh, taking into account the purposes of sentencing and the application of established sentencing principles (see Kentwell v The Queen [2014] HCA 37 at [35]-[42]).

Evidence on re-sentence

1. An affidavit of the applicant dated 9 February 2018 was read on the appeal. In the affidavit he deposed to having progressed through various custodial classifications such that he is currently detained in the general prison population at Goulburn Correctional Centre. There is no documentation annexed to the affidavit to confirm his current classification, despite what I accept to be efforts by his lawyers to obtain that information. It would seem, however, from the content of the affidavit generally, that he remains housed in the HRMU as he speaks of the limitations on contact with his family by reason of the arrangements particular to HRMU inmates.
2. I accept that the applicant is feeling the effects of separation from his family and that he is eager to resume his obligations to them, in particular to his wife, by resuming paid employment with his brother upon his release.
3. He says of his future plans that he will "complete his parole, stay out of trouble and be a normal member of society". He says that he does not condone any form of violence. This is, of course, in stark contrast to the conduct for which he was sentenced. His affidavit does not address his past offending nor does he attempt to explain it.
4. I also note that in February 2017 he remained subject to a management plan which obliged him to engage in psychological support services and to continue discussion about matters related to his interpretation and expressions of faith and theology with an Imam approved by Corrective Services NSW. This was to address what was described in the management plan as "his support for the use of violence" and to assist him "to develop insight in regards to offending and increase his range of pro-social supports". There is no further update on his progress under that management plan.

Submissions on re-sentence

1. In undertaking the re-sentencing exercise in this case and, in particular, after affording the applicant's pleas of guilty an objective or utilitarian value, in addition to the value to be attributed to his subjective willingness to facilitate the course of justice, Mr Odgers submitted that a lesser sentence is warranted.
2. In Mr Odgers' written submissions he invited the Court to simply adjust the sentence by increasing the discount to 25 per cent in accordance with the approach to assessing the discount for an early plea of guilty in the guideline judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. At the hearing of the appeal Mr Odgers submitted that rather than the Court taking that approach, we should exercise the sentencing discretion afresh. In his submission, after giving consideration to the evidence relied upon on re-sentence, and after allowing a 25 per cent discount for the pleas of guilty, a different and lesser sentence would result.
3. Mr Odgers submitted that after taking into account the positive steps the applicant has taken in custody to denounce the activities of those who would promote violence coupled with a 25 per cent discount for the pleas of guilty, a sentence of 3 years dating from 29 February 2016 would be an appropriate sentence. He further submitted that applying the mandatory statutory ratio between the head sentence and the non-parole period in s 19AG of the Crimes Act (Cth), a non-parole period of 2 years and 3 months should be fixed against that head sentence with the non-parole period expiring on 28 April 2018.
4. The Crown submitted that even were the Court satisfied that there was error in the sentencing judge's approach to the valuation of the discount for the pleas of guilty, no other sentence than that imposed by the sentencing judge is warranted in law and the sentence appeal should be dismissed.
5. In the Crown's submission, although the pleas of guilty were entered in the Local Court thereby saving the time and resources the District Court would have committed to dealing with the matter as a contested trial, the pleas were not entered at the earliest time, being entered six months after the applicant's arrest and on the day listed for his committal hearing. Further, the Crown submitted that because the guideline judgment in R v Thomson; R v Houlton has no application to Commonwealth offences (being concerned solely with the Crimes (Sentencing) Procedure Act 1999 (NSW)) and where different levels of discount for guilty pleas are provided for under other State and Territory sentencing statutes, for this Court to simply adopt and apply the discounting regime for guilty pleas specific to New South Wales would be at variance with the need for sentencing consistency for Commonwealth offences throughout Australia (see The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39). In the Crown's submission, even were the Court to accept that some guidance is provided by the guideline judgment in R v Thomson; R v Houlton, the Court at [115] noted that a discount at the top of the range (being 25 per cent) was reserved for pleas at the earliest possible opportunity and that did not occur in this case.
6. Finally, the Crown submitted that in Xiao the Court should be taken to have reasoned to the conclusion that s 16A(2)(g) encompasses both utilitarian considerations and subjective factors, including an acceptance of responsibility for the conduct that has attracted criminal sanction and a willingness on the offender's part to facilitate the course of justice. In short, the Crown submitted the operation of s 16A(2)(g) has been expanded to include utilitarian considerations rather than being limited to them. In addition, as the Crown sought to emphasise, the Court in Xiao also recognised at [272] that contrition and remorse as sentencing considerations are separately accounted for in s 16A(2)(f). While the Court acknowledged that other factors in s 16A(2)(a)-(p) will from time to time overlap in the sentencing exercise for Commonwealth offences, the value of the plea as a subjective consideration under s 16A(2)(g) does have traction, particularly where, as the Court noted at [269], the section provides no express limitation on the manner in which the plea is to be taken into account.
7. That being the case, the Crown submitted that the strength of the Crown case is a relevant factor to be taken into account in the assessment of the discount for the applicant's pleas of guilty, albeit limited to reflecting a willingness on his part to facilitate the course of justice. The Crown submitted the electronic and other surveillance evidence which established the applicant's repeated breaches of the control order was overwhelming.

Conclusion on re-sentence

1. In assessing the value of the applicant's pleas of guilty and taking into account both objective and subjective considerations under s 16A(2)(g), I would allow a discount of 20 per cent.
2. I accept that the applicant has served a significant part of his sentence without incident and that he currently expresses no interest in violence or violent conduct. However, those attitudes are expressed in a custodial setting where his conduct and his associations are regulated and monitored. In addition, he does not express remorse or contrition for his offending conduct, which included a willingness on his part to act in accordance with a faith-based ideology which promotes the infliction of violence against non-believers. In my view, the objective seriousness of the applicant's deliberate and repeated defiance of the control orders, coupled with the need for the re-sentencing exercise to reflect the continuing need for general and specific deterrence, dictates that no lesser sentence than that imposed by the sentencing judge is warranted in law.
3. Accordingly, the orders which I propose are as follows: 1. Leave to appeal granted. 2. The appeal is dismissed.

Amendments 22 March 2018 - [27] - paragraph numbers amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2018