R v Lelikan [2019] NSWCCA 316 | Case summary

Court of Criminal Appeal (NSW)|2019-07-19|Before: Bathurst CJ, Bell P, Davies J, McCallum J

9 Before: McCallum J File Number(s): 2016/219466

HEADNOTE [This headnote is not to be read as part of the judgment] The Commonwealth Director of Public Prosecutions (the Director) has appealed against the sentence imposed on Renas Lelikan (the respondent) for the offence that contrary to s 102.3(1) of the Criminal Code (Cth) between about 5 April 2011 and 15 August 2013 in Iraq, Turkey and elsewhere, did intentionally be a member of a terrorist organisation, namely the Partiya Karkerên Kurdistanê (PKK) (the Kurdistan Workers' Party). The PKK at the time was a proscribed terrorist organisation within the definition of terrorist organisation in s 102.1 of the Code. The respondent pleaded guilty to this offence and was sentenced to a Community Correction Order. The respondent is a Kurd born in Turkey who, along with his father and brother had been detained, harshly treated and tortured by Turkish authorities. Another brother of the respondent had been killed fighting as a PKK guerilla. The unchallenged expert evidence at trial was that "the established cause of the armed conflict is Turkey's historic suppression of Kurdish aspirations for self-determination". In 1997, the respondent was granted refugee status in Australia. In February 1999, the respondent was arrested at a protest following the arrest of the leader of the PKK and convicted of possessing an offensive weapon (a Molotov cocktail) and property damage. On 9 October 1999, the respondent set himself alight in a further demonstration and yelled "I do this for peace, for Kurdistan". The respondent moved to Paris in 2007 and was charged with terrorist offences relating to his association with the PKK. The respondent fled to Iraq and was sentenced in absentia to a suspended sentence of 3 years. During the period of the offending, the respondent "spent a significant amount of time in the mountains travelling with members of the HPG", that is the military arm of the PKK, the Hezen Parastina Gel (the HPG). The sentencing judge stated that the principal features of the respondent's membership were that "he supported the struggles including in his writings, wore the uniform and insignia, carried arms and travelled with the guerrillas under their instruction". The sentencing judge accepted that the respondent "was fully aware of the organization's ideologies, motivation and objectives". The sentencing judge described the respondent's involvement as "that of a passive, sympathetic observer who sought to chronicle their struggle". The sentencing judge characterised "the nature of his informal membership of the PKK as being towards the lowest order of seriousness", stating that it was "difficult to conceive of a lesser involvement" falling within the scope of the offence. There were three main issues on the appeal. The first issue was the approach that should be taken in making an assessment of the objective seriousness of the offence and the offender's moral culpability. The second issue was whether the sentencing judge erred in sentencing the respondent. The third issue was whether the Crown had negated any reason why the residual discretion of the Court not to interfere with the sentence should not be exercised. The Court held: Assessment of objective seriousness and moral culpability 1. In sentencing for terrorist offences, the merits of the cause of the organisation is not a relevant factor. It is not appropriate for the Court to assess the merits of the organisation's political ideology in assessing the objective seriousness. To take the merits of a terrorist organisation into account essentially would involve the consideration of the ideology of the organisation which is a matter for the legislature in considering whether to declare that the organisation in question is a terrorist organisation: [120]-[122]; [131] (Bathurst CJ); [154]-[155] (Bell P); [157] (Davies J). Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 considered. R v Sarwar [2015] EWCA Crim 1886; [2016] 1 CR App R (S) 54; R v F at 970, 972; R v Kahar; R v Ziamini [2016] EWCA Crim 568; [2017] 2 All ER 782; [2016] 1 WLR 3156; IM v R [2019] NSWCCA 107: Director of Public Prosecutions (Cth) v El Sabsabi [2017] VSCA 160 referred to. 1. In assessing objective seriousness, it is appropriate to take into account the history and objectives of the organisation as the nature of the organisation's past activities and its potential future activities are relevant to a determination of the objective seriousness of the offence of membership of a terrorist organisation. It is also relevant that the organisation neither advocates nor engages in the indiscriminate killing of civilians, and the fact that the organisation is well-organised and resourced at the time of the offence with an intention and capacity to carry out terrorist acts: [123]-[124] (Bathurst CJ); [154]-[155] (Bell P; [157] (Davies J). 2. In assessing objective seriousness, the commitment of the organisation to international humanitarian law and the classification of the conflict between Turkey and the Kurds as "a non-international armed conflict, within the meaning of the Geneva Conventions" is not relevant: [125]-[126] (Bathurst CJ); [154]-[155] (Bell P); [157] (Davies J). 3. In assessing moral culpability, it is relevant that the respondent joined the organisation and maintained his membership with the full knowledge of its objectives and the method by which it sought to achieve them. The respondent's belief in the rightness of the cause does not of itself affect his moral culpability. However, the fact that he joined the organisation due to his cruel treatment at the hands of the Turkish authorities mitigates that culpability: [127]-[129], [131] (Bathurst CJ); [154] (Bell P); [157] (Davies J). Error in sentencing the respondent 1. The sentencing judge erred by taking into account first, the merits of the terrorist organisation's ideological motivation, second, the seriousness of the terrorist organisation's ideology, including the extent to which it is compatible with democratic values and third, Australia's de facto alliance with the PKK during the Syrian conflict: [132]-[136] (Bathurst CJ); [154] (Bell P); [157] (Davies J). 2. The sentencing judge erred by taking into account the fact that the classification of the PKK as a terrorist organisation is contentious and that the PKK has declared itself bound by the Geneva Conventions and their Additional Protocols. However, it is relevant that the PKK does not as a matter of fact intentionally target innocent civilians or commit any of the atrocities for which organisations such as ISIS are notorious: [137] (Bathurst CJ); [154] (Bell P); [157] (Davies J). 3. The sentencing judge did not err by taking into account the limited geographic area of activity of the PKK and by making "only a passing reference" to the minority report of the Parliamentary Joint Committee on Intelligence and Security which asserted that there were no direct positive security benefits to Australia from relisting: [138]-[139] (Bathurst CJ); [154] (Bell P); [157] (Davies J). 4. The sentencing judge erred in her assessment of the objective seriousness of the offence as "being towards the lowest order of seriousness" as her assessment was "affected" by the aforementioned errors [140] (Bathurst CJ); [154] (Bell P); [157] (Davies J). 5. The sentencing judge did not err in finding that the respondent's criminal record did not demonstrate "bad character or any dangerous propensity such as to deprive him of the benefit of any leniency": [141]-[144] (Bathurst CJ); [154] (Bell P); [157] (Davies J). Residual discretion 1. The Court exercised the residual discretion not to interfere with the respondent's sentence. The Crown has not overcome the hurdle of negating any reason why the residual discretion of the Court not to interfere with the sentence should not be exercised. The Crown accepted that the offence fell into the middle to low-range of seriousness and conceded that it was appropriate to take into account the PKK's stated commitment to international humanitarian law, a concession which was incorrect. The sentencing judge could not be criticised for proceeding on the basis that she could look at the nature and quality of the organisation as the Crown had stated this on two occasions during the trial. Further, the case was conducted on the basis that the whole of the evidence before the sentencing judge was relevant to the sentencing exercise. Finally, despite a brief period of incarceration, the respondent has been at liberty since the time he was charged and has done nothing to suggest that the sentencing judge's assessment of his character was incorrect: [146]-[152] (Bathurst CJ); [154], [156] (Bell P); [157] (Davies J). R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489 at [12]; CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9 referred to.

Judgment

BATHURST CJ: The respondent, Renas Lelikan (the respondent), was charged on indictment with the offence that between about 1 January 2012 and 31 December 2012, at Iraq and Turkey, while being an Australian citizen, did engage in hostile activities in a foreign state, namely, Iraq and Turkey, contrary to s 6(1)(b) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). He was tried for this offence in 2018 but the jury were unable to reach a verdict. There has been no retrial.
In addition, the respondent was charged with the offence that contrary to s 102.3(1) of the Criminal Code (Cth) (the Code) between about 5 April 2011 and 15 August 2013 in Iraq, Turkey and elsewhere, did intentionally be a member of a terrorist organisation, namely the Partiya Karkerên Kurdistanê (PKK) (the Kurdistan Workers' Party). The PKK at the time was a proscribed terrorist organisation within the definition of terrorist organisation in s 102.1 of the Code.
The respondent pleaded guilty to this offence. It was common ground that the plea was entered on the basis that he knew that the PKK was an organisation engaged in terrorist acts, not on the basis that he knew that it was proscribed.
The respondent was sentenced on 7 May 2019 to a Community Correction Order. It is unnecessary to set out the precise details of the order. The Commonwealth Director of Public Prosecutions (the Director) has appealed against the sentence pursuant to the provisions of s 5D of the Criminal Appeal Act 1912 (NSW).
The appeal raises unusual and difficult questions, in particular, where the only offence with which the offender is charged is membership of a terrorist organisation, to what extent in assessing the objective seriousness of the offence and the offender's moral culpability, the nature of the terrorist organisation and more particularly, the scope of its operations, aims and methodology should be taken into account.
In dealing with the matter, it is convenient to first set out the relevant legislation to the extent necessary and the grounds of appeal before seeking to deal with the sentencing judgment and the submissions of the parties.

The relevant legislation

Section 102.3 provides for the offence of intentionally being a member of a terrorist organisation. So far as relevant it provides as follows: "102.3 Membership of a terrorist organisation (1) A person commits an offence if: (a) the person intentionally is a member of an organisation; and (b) the organisation is a terrorist organisation; and (c) the person knows the organisation is a terrorist organisation. Penalty: Imprisonment for 10 years."
Terrorist organisation is defined in s 102.1 of the Code in the following terms: "terrorist organisation means: (a) an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or (b) an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3), and (4))."
Terrorist act is defined in s 100.1 of the Code as follows: "terrorist act means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public."
Sections 100.1(2) and 100.1(4) are in the following terms: "(2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person's death; or (d) endangers a person's life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or (ii) a telecommunications system; or (iii) a financial system; or (iv) a system used for the delivery of essential government systems; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system." "(4) In this Division: (a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and (b) a reference to the public includes a reference to the public of a country other than Australia. Note: A court that is sentencing a person who has been convicted of an offence against this Part, the maximum penalty for which is 7 or more years of imprisonment, must warn the person about continuing detention orders (see section 105A.23)."
Section 100.1(4)(a) provides that "a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia".
Section 102.1(2) to s 102.1(20) make provision for the making of regulations proscribing an organisation as a terrorist organisation and the repeal and renewal of such regulations. It is only necessary to set out s 102.1(2) which provides as follows: "Terrorist organisation regulations (2) Before the Governor-General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in this section, the AFP Minister must be satisfied on reasonable grounds that the organisation: (a) is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or (b) advocates the doing of a terrorist act."
In the Second Reading Speech for the introduction of the Security Legislation Amendment (Terrorism) Bill 2002 which introduced the proscribed organisation provisions into the Code, the Attorney-General made the following comments: "Proscribed Organisations Provisions … These provisions provide an effective and accountable mechanism for the Government to outlaw terrorist organisations and organisations that threaten the integrity and security of Australia or another country. The proposed provisions give the Attorney-General the power to make a written declaration that one or more organisations are proscribed. However, objective, reasonable grounds must be made out before an organisation may be proscribed. The Attorney General must be satisfied, on reasonable grounds, of one or more of the following matters. First, that the organisation was committing or had committed a Commonwealth terrorism offence. Second, that a member of that organisation was committing or had committed a Commonwealth terrorism offence on behalf of the organisation. Third, that the declaration is appropriate to give effect to a finding of the United National Security Council that the organisation is an international terrorist organisation. Fourth, that the organisation is likely to endanger, or has endangered the security or integrity of the Commonwealth or another country. The Attorney-General will have an express power to rescind such a declaration."
Subsequently, a Bill was introduced, the Criminal Code Amendment (Terrorist Organisations) Bill 2002, which was designed to overcome the problems posed by the fact in the legislation which had been previously been passed there was a provision that prevented terrorist organisation regulations coming into operation straight away. In the Second Reading Speech in relation to this Bill, the following comments were made concerning membership of terrorist organisations: "Listing of organisations sends a clear and unequivocal message to those who might involve themselves with those organisations that if they do so they will face the full weight of the law. Listing also facilitates the investigation and prosecution of those engaged in supporting or carrying out the activities of terrorist organisations. Given the delay and uncertainty that could be involved in waiting to prove an organisation's engagement in a terrorist act in court, listing organisations by regulation is a more effective method of specifying terrorist organisations in most cases. Listing of organisations serves a number of purposes. It puts people on notice not to deal with the listed organisations. And it provides certainty to law enforcement agencies that they can act against the organisation immediately, without the significant delay that is likely in completing a criminal prosecution."
Section 102.1A provides for the Parliamentary Joint Committee on Intelligence and Security to review a regulation specifying an organisation as a terrorist organisation as soon as possible after it is made. There was in evidence before the sentencing judge a review of the regulation proscribing the PKK as a terrorist organisation carried out in September 2018 to which the sentencing judge and both parties on the appeal made reference. There was also in evidence the associated Explanatory Statement for the renewal of the regulation. I will deal with this material to the extent necessary when I deal with the submissions of the parties.
Section 102.3 forms part of a series of offences contained in Pt 5.3 of the Code designed to deal with terrorism. Division 101 deals with terrorist acts and provides for a range of offences concerning terrorist acts, ranging by reference to the maximum penalties to engaging in a terrorist act or doing acts in preparation for, or planning, terrorist acts for which the maximum penalty is life imprisonment (s 101.1, s 101.6) possessing things connected with terrorist acts or collecting or making documents likely to facilitate terrorist acts for which the maximum penalty ranges between 10 years and 15 years imprisonment.
Division 102 deals with terrorist organisations and also provides for a range of offences. They range from offences which might be said to demonstrate an active involvement in terrorist organisation (directing the activities of such an organisation, recruiting for a terrorist organisation, training, getting funds to, from or for such an organisation or providing support for an organisation) for which the maximum penalty is 25 years to being associated with a member of an organisation, knowing that the association provides support for the organisation for which the maximum penalty is 3 years imprisonment. The variety of offences and the different sentences imposed demonstrate that care must be taken in comparing the penalty imposed for this offence to penalties imposed on conviction for other terrorist offences. Importantly, in considering any features which may aggravate the offence, regard should be had to the principle in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 that the taking into account of those aggravating factors would not render the defender liable for conviction for an offence which imposed greater punishment.
In Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 ('Benbrika') at [555]-[557] the Victorian Court of Appeal made the following comments concerning sentences for the offence presently in question: "[555] So far as objective seriousness is concerned, the history of the organisation is relevant because it informs the nature of the organisation. The definitions of 'terrorist organisation' and 'terrorist act' are extraordinarily broad. Therefore, on the one hand, a 'terrorist organisation' may include anything from a rag-tag collection of malcontents whose commitment to terror never advances further than a conception that one day, some time, they will undertake a 'terrorist act' of as yet undetermined nature and scope. On the other hand, it may include a 'terrorist organisation', like Al Qaeda or Jema'ah Islamiah, with a proven record of committing the worst terrorist acts imaginable and, presumably, with more of the same in constant planning and preparation. Axiomatically, the activities of the former class of organisation are less likely to result in the commission of a terrorist act than the latter. Thus, other things being equal, the objective seriousness of an offence of joining the former kind of organisation is likely to be eclipsed by the objective gravity of subscribing to the latter. [556] So far as moral culpability is concerned, the history of the organisation is relevant because it may say something about the way in which prospective members are attracted to the organisation and, therefore, about their state of mind. For example, with an organisation of the former kind, it is possible that an offender may join the organisation in a state of uncertainty or confusion. They may thereafter have been seduced by a process of indoctrination to embrace the terrorist philosophy and objectives of the organisation. With an organisation of the latter variety, however, logic and common sense imply the probability that the offender will be committed to the terrorist philosophy and objectives of the organisation before being admitted to its membership, and so they go into it with their eyes wide open. Without wishing to be prescriptive about it, we think the difference provides a basis to say that an offender of the former kind is less morally culpable than the latter. [557] We do not suggest that the criminal culpability involved in the membership of a terrorist organisation is ever to be regarded as less than very serious, even where the activities of the organisation go no further than acts preparatory to the commission of a terrorist act. Nor do we overlook the vital importance of denunciation and general deterrence in sentencing offenders for offences of this kind. Nevertheless, Parliament has made the offence punishable by a maximum penalty of 10 years' imprisonment, which implies that sentences of close to 10 years are reserved for the worst kinds of cases. From that, one may infer that it was intended there be scope for the recognition of a range of objective seriousness and moral culpability. It would be wrong in principle to ignore the range of penalty which that entails."

The declaration of the PKK as a proscribed terrorist organisation

The PKK was first declared a proscribed terrorist organisation in December 2005. The listing has been extended since that time, most recently on 4 August 2018 by the Minister for Home Affairs.
An Explanatory Statement was issued by the Minister for Home Affairs in September 2018 in relation to the Criminal Code (Terrorist Organisation - Kurdistan Workers' Party) Regulations 2018. It stated that "[t]he Minister for Home Affairs is satisfied on reasonable grounds that Kurdistan Workers' Party is engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or advocates the doing of a terrorist act. In coming to this position, the Minister for Home Affairs has taken into consideration an unclassified Statement of Reasons provided by the Director-General of Security, as well as advice from the Australian Government Solicitor (AGS)". It further stated that "[t]he unclassified Statement of Reasons was prepared by the National Threat Assessment Centre in the Australian Security Intelligence Organisation, in consultation with the Department of Foreign Affairs and Trade and the Department of Home Affairs".
The Statement of Reasons was attached to the Explanatory Statement. As relevant, it provides that: "2. Background to this listing The Australian Government first proscribed the Kurdistan Workers' Party (PKK) as a terrorist organisation under the Criminal Code on 17 December 2005. It was relisted on 28 September 2007, 8 September 2009, 18 August 2012 and 11 August 2015. 3. Terrorist activity of the organisation Objectives The PKK's objectives have changed over time, in line with Turkey's evolving political environment. Since its inception, the group has primarily been committed to the creation of an independent Kurdish state in south-eastern Turkey, Syria and Iraq. After the end of the Cold War, the PKK increasingly emphasised its role as a Kurdish nationalist movement. The organisation now calls for autonomy for Kurds within Turkey and seeks to promote the rights of Kurds living in Turkey, specifically the right to maintain a Kurdish ethnic identity. It also aims to monopolise Kurdish political power, including by attacking the interests of rival Kurdish political parties. Directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of terrorist acts The PKK has engaged in violence since its foundation in 1978, including during periods covered by ceasefires with the Turkish Government. Its main targets are the Turkish military and police, along with other Turkish Government interests - including infrastructure, schools and civilians associated with the government. Following the breakdown of the group's most recent ceasefire in 2015, PKK's terrorist activities have been largely concentrated in Turkey's south and east, particularly the provinces of Diyarbakir, Hakkari, Sirnak, Mardin and Van. In 2016 the scale of PKK attacks increased when the group started using more vehicle-borne improvised explosive devices, and expanded their areas of operation to include urban centres in Turkey, including in Ankara and Istanbul. The PKK's activities have mostly consisted of bombings, armed assaults and attacks against infrastructure. While the volume of PKK's attacks significantly reduced in 2017; sporadic attacks continue, particularly in Turkey's south and east. The PKK continues preparing and planning terrorist attacks in Turkey. This is demonstrated by Turkish authorities' disruptions of advanced-stage PKK attack plots and uncovering large quantities of explosives and firearms. These include: 13 December 2017, Turkish police disrupted a planned PKK attack on the Organisation of Islamic Cooperation summit in Istanbul. Police found a minibus filled with 60 kilograms of explosives in Istanbul and detained at least 11 suspects. 11 August 2017, Turkish police raided an address in Adana province disrupting a major PKK attack planned for 15 August 2017 in Ankara. Police confiscated 1.5 tonnes of ammonium nitrate, 300 kilograms of nails, 25 gas masks, more than 200 litres of gasoline, other bomb-making materials, 12 Kalashnikov rifles, 24 hand grenades, ammunition, and 12 assault vests and 12 police uniforms with 'Ankara' written on them. … 4. Details of the organisation The PKK was formally established by Abdullah Ocalan in 1978. The group originally followed a Marxist-Leninist ideology and has been primarily committed to the creation of an independent Kurdish state in south-eastern Turkey, Syria and Iraq. In line with its objectives and associated ideology, the PKK primarily conducts attacks against the Turkish Government and security forces targets and has not directly targeted Western interests. Leadership Although PKK founder Ocalan, currently serving life imprisonment in Turkey, is still the group's leader and figurehead, day-to-day affairs are run by Murat Karayilan. The PKK's operational command has consisted of a three-man Executive Committee, including Murat Karayilan, Cemil Bayik and Fehman Husain, which has managed the organisation from the PKK's base in the Qandil Mountains in northern Iraq. Membership The precise strength of the PKK is unknown; however, the majority of militants are based in northern Iraq. The group draws on considerable logistical support from a large number of sympathisers among the Kurdish community in south-east Turkey, Syria and Iran. There are also thousands of PKK supporters outside the region, mostly in Germany, the Netherlands and Belgium. … Threats to Australian interests While the PKK directs attacks against Turkish Government and security force targets, attacks by the group have treated civilian bystanders as acceptable collateral. In late-2015 and 2016, there was an increase in the scale of PKK attacks, with an expansion of the group's areas of operation to include urban areas across Turkey, including metropolitan centres in the country's west, and cities popular with tourists on Turkey's Aegean and Mediterranean coast. Listed by the United Nations or like-minded countries The PKK is listed as a proscribed terrorist organisation by the United States, Canada, United Kingdom and New Zealand. The PKK is also included in the Department of Foreign Affairs and Trade's Consolidated List maintained under the Charter of the United Nations Act 1945, which implements Australia's obligations under United Nations Security Council Resolution 1373 in relation to countering the financing of terrorism. Engagement in peace or mediation processes The PKK has engaged in ceasefires and peace talks with the Turkish Government at various stages throughout its history. While the PKK's terrorist activities slowed during its most recent ceasefire (2012-2015), its members continued to conduct attacks against civilian, military and other government targets in Turkey. During the ceasefire period, in addition to the hundreds killed in PKK attacks, the group is reported to have kidnapped more than 300 children (between December 2013 and May 2014). Following the breakdown of peace talks in June 2015, PKK attacks increased to pre-ceasefire rates. … 5. Conclusion On the basis of the above information, ASIO assesses that the PKK continues to be directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of terrorist acts. In the course of pursuing its objectives, the PKK is known to have committed or threatened actions that: a) cause, or could cause, death, serious harm to persons, serious damage to property, endangered life (other than the life of the person taking the action), or create a serious risk to the health or safety of the public or a section of the public; b) are intended to have those effects; c) are done with the intention of advancing the PKK's political, religious or ideological causes; d) are done with the intention of intimidating the government of one or more foreign countries; and e) are done with the intention of intimidating the public or sections of the public."
Neither party suggested that those statements were incorrect but there was some debate as to the extent that they permitted investigation into the ideology or motivation of the organisation in question. However, objection was taken to that part of the statement of reasons which referred to attacks in 2016, 2017 and 2018. I have not included these portions in the extract.

The grounds of appeal

The Director relied on the following grounds of appeal "1. Her Honour erred by taking into account irrelevant matters in assessing the objective seriousness of the offence and the respondent's moral culpability, namely: (a) the merits of the terrorist organisation's political or ideological cause in engaging in terrorist acts; (b) the seriousness of the terrorist organisation's ideology, including the extent to which it advances democratic principles in common with the values of Australian democracy; (c) the nature and quality of the PKK as a listed terrorist organisation, including by reference to whether the characterisation of the PKK as a terrorist organisation and the nature of the violence in which it engages are contested under international law, and whether the features of its rules of engagement distinguish it from other terrorist organisations; (d) the extent to which the terrorist organisation seeks to harm Australian citizens or institutions, as opposed to the citizens or institutions of other countries; (e) the fact that two members of the Parliamentary Joint Committee on Intelligence and Security issued a minority report in respect of the merits of the re-listing of the PKK as a terrorist organisation under s 102.1(2) of the Criminal Code, which asserted that there were no direct positive security benefits to Australia from the relisting; (f) the alleged basis of the re-listing of the PKK as a terrorist organisation under s 102.1(2) of the Criminal Code as being solely to protect Australians visiting Turkey, a conclusion which was not open; and (g) Australia's de facto alliance with the PKK during the Syrian conflict after the period of the respondent's offending. 2. Her Honour erred in her assessment of the objective seriousness of the offence as being towards the lowest order of seriousness. 3. Her Honour erred in finding that the respondent's criminal record did not deprive him of the leniency that might otherwise be afforded to him. 4. The sentence was manifestly inadequate. Particulars of Ground 4 The sentence imposed does not adequately reflect: (a) the history and nature of the terrorist acts committed by the PKK; (b) the seriousness of the offence, including the maximum penalty prescribed for the offence; and (c) the principles of general deterrence, specific deterrence, punishment and denunciation."

The sentencing judgment and the Director's criticism of it

The approach taken by the Director at the hearing of the appeal was to go through the sentencing judgment making submissions in respect of particular paragraphs which she said supported the particular grounds, rather than dealing with each ground of appeal separately. Further at the request of the Court, she provided the Court with a copy of the judgment marked-up to identify those passages which she submitted supported her contentions that the sentencing judge fell into error. That copy marked separately the passages of the judgment which were the subject of ground 1 of the appeal and the passages the subject of the other grounds.
In those circumstances, it is convenient to adopt a similar approach and to summarise the sentencing judgment whilst noting during the course of the summary, those portions in which it was suggested the sentencing judge fell into error.
At the outset of her judgment, the sentencing judge noted that the respondent was to be sentenced for the offence described as "membership of a terrorist organisation". She stated, however, that before making any assumptions as to the nature of the offending, it was "important to understand the context in which the charge was brought".
The Director submitted that this showed from the outset that the judge sought to question the listing. She submitted that the sentencing judge acknowledged that "she could not go behind" the listing, referring to the statement by the sentencing judge at [72] that she "must pay due regard to the fact that Australia has maintained the listing of the PKK on that unqualified basis", but stated that the effect of her judgment was that she regarded the listing as "a special type of listing". The Director stated in that context that the declaration of a proscribed terrorist organisation was "part of a scheme" that the government had "set up to indicate that terrorism is simply never acceptable as part of political discourse". She stated that the purpose of the legislation is to denounce terrorist conduct and to discourage people from supporting organisations directly or indirectly engaged in the preparation or planning of terrorist activities.
In dealing with what the sentencing judge described as "the context in which the charge was brought", her Honour stated that the respondent is a Kurd born in Turkey who was "raised to understand that the Turkish Government did not recognise the separate ethnicity of Kurds" and he was not allowed to speak Kurdish at the schools that he attended. Her Honour noted that the respondent "grew up with a story that his father had been … tortured by Turkish authorities after coming into contact with PKK guerrillas". In that context, she stated that the unchallenged expert evidence before her was that "the established cause of the armed conflict is Turkey's historic suppression of Kurdish aspirations for self-determination through the repression and assimilation of Kurdish identity through processes of cultural genocide".
Her Honour noted that when the respondent was a young teenager his older brother, Orhan, was detained for a month after attending a funeral and that a year later, the respondent and another of his brothers, Fuat, were "detained after shouting slogans protesting against the war and supporting the PKK at a traditional Kurdish celebration". She noted that they were each harshly treated and tortured. She stated that after their release, Fuat left the family home and joined the PKK guerrillas and that over the following year the respondent was "detained, questioned and sometimes tortured by authorities three more times". The brothers decided that he should leave Turkey to seek refuge in another country. He was then aged 14 years. At the time his other brothers, Orhan and Ahmet, also left Turkey and were granted refugee status in Sweden. They "learned that Fuat had been killed by the Turkish militia when fighting in the mountains as a PKK guerrilla".
The sentencing judge stated that the respondent came to Australia in 1996 and in 1997 was granted refugee status on the basis of a well-founded fear of persecution "for reasons of his nationality (Kurdish), membership of a social group (his family) and political opinion (his support for the PKK)".
Her Honour recorded that in February 1999 the leader of the PKK, Abdullah Öcalan, was arrested sparking protests, including at the Greek Consulate in Sydney. The respondent was arrested at the protest and convicted of possessing an offensive weapon (a Molotov cocktail) and property damage.
On 9 October 1999, the respondent participated in a further demonstration in front of the Sydney Town Hall at which he set himself on fire causing third degree burns to 80% of his body. Shortly after setting himself on fire, he yelled "I do this for peace, for Kurdistan".
The sentencing judge stated that from about 2002, the respondent worked as a journalist and writer. He was granted Australian citizenship in 2003. In 2004, he left Australia and travelled to Iraq reaching Mount Qandil in Iraq Kurdistan. The sentencing judge noted that "he spent time researching to find the place where his brother Fuat was buried and also interviewing PKK guerrillas and villagers, collecting and writing stories". The Director in her submissions pointed out that the respondent was issued his passport on 1 April 2004 and left Australia six days later only returning in 2015.
Her Honour noted that in 2005 the PKK was declared a proscribed terrorist organisation.
In 2007, the respondent moved to Paris. His home in Paris was raided, his laptop and Australian passport seized and he was charged with terrorist offences relating to his association with the PKK. He fled France whilst on bail and was arrested in the Netherlands on an international warrant, was returned to France and remained on bail until March 2011 when he fled France and travelled to the Kurdish region of Northern Iraq. He was sentenced in absentia for the offences in Paris to a suspended sentence of 3 years and excluded from French territory for 5 years.
In April 2011, the respondent went to Mount Qandil. Between that time and about August 2013, the sentencing judge noted that "he was travelling in the mountains with PKK guerrillas". That was the period of offending.
The sentencing judge pointed out that after leaving Mount Qandil, the respondent returned to Makhmour Refugee Camp. He requested a new Australian passport and ultimately was given an Australian emergency passport. He returned to Australia on 24 October 2015. He was charged with the offence the subject of these proceedings on 20 July 2016 and pleaded guilty in the Local Court. It should be noted that it was common ground between the parties that the material tendered in the trial for the offence referred to in [1] above was properly available for the sentencing judge in sentencing for the present charge.
The sentencing judge next proceeded to deal with the nature and circumstances of the offence. Her summary was based primarily on an agreed statement of facts. Her Honour described the "starting point" for the offence as April 2011 when, having travelled to Iraq, the respondent "joined up with the military arm of the PKK, the Hezen Parastina Gel (the HPG)". She stated that during the period of the charge, the respondent "spent a significant amount of time in the mountains travelling with members of the HPG". She noted that during that time, "he wore the HPG uniform and insignia", "often carried standard accoutrements including firearms, ammunition and grenades", and "promoted and supported the PKK in his writing".
The Director placed particular emphasis on the statement by the sentencing judge that the respondent both "promoted and supported the PKK in his writing", drawing the distinction between the functions of an independent journalist reporting in a balanced way rather than promoting and supporting the PKK.
Her Honour referred to the fact that the respondent was "regularly photographed in full HPG uniform including an accoutrements belt and armed with a grenade and AK-47 rifle". However, she stated that "that description does not quite do justice to the nature of the photographs, many of which (at the risk of sounding trite) also have a certain humanity". She referred to one showing him "in front of a panel of PKK commanders in company with HPG members with radios apparently, studying a text book in front of PKK and Öcalan banners", one of him "handling the ammunition and magazine of an AK-47 style rifle" and another of him facing the camera feeding a baby goat.
In the marked-up copy of the judgment, the Director identified her Honour's description of the photographs having "a certain humanity" as being relevant to the error asserted in grounds 2 to 5 of the grounds of appeal. She also noted that the photographs showed that the respondent was photographed with the three members of the executive committee of the PKK. However, she acknowledged that this statement by itself did not demonstrate error.
Over this period, the respondent wrote around 30 emails to his cousin, Ruşen Demirbag. Because of the importance they assumed in the Director's case, it is necessary to set out those portions extracted by the sentencing judge in full.
On 6 February 2012, the respondent wrote to Mr Demirbag about being in the Zagros Mountains. He wrote: "We will welcome this spring with the greatest and most fierce resistance in history. We have been preparing for this resistance for a long time. We, as HPG, are ready to welcome this spring with glory. And this spring will be the spring of freedom for the people of Kurdistan. I did write a letter addressing yourself. We will, later on, publish that letter on the HPG site."
The Director made particular reference to the expression "[w]e, as HPG, are ready to welcome this spring with glory" submitting that it showed "a glorified indication of the use of force which the Australian Government has said to be a terrorist force".
On 1 May 2012, the respondent forwarded an email to Mr Demirbag concerning his intention to travel to Hakkari. It stated: "I will rest until the evening, then head to Zagros with my group. Despite the objections of the organisation, as a result of my insistence I will head to Zagros mountains and from there to around Hakkari. It is something else to be a guerrilla around there. Hakkari has majestic mountains and geography as well as a militant people. It was my dream to be a guerrilla in those areas for a term. I will make that a reality … But for a long time I will not have the facility to write because the places we will be going to are battle fields."
The Director submitted that this email showed "a keenness to be involved with and near the HPG".
Her Honour referred to the fact that a series of emails were sent by the respondent to Mr Demirbag between 6 and 7 December 2012, including a number of photographs and articles written by him as attachments. Her Honour summarised portions of these emails in the following terms: "[47] Between 6 and 7 December 2012, the offender sent his cousin Ruşen Demirbag about 30 emails which included a number of the aforementioned images and articles as attachments. In the first email (subject: 'daglidan …') the offender wrote: 'Hi Ruşen I went to Hakkari at the beginning of spring. For about a year, I have been on the move in a wide area from Hakkari Çukurca, Oramar. Gever and Şemdinli to Botan. Our time has been spent with the intensity of revolutionary operations. 7 times I managed to make it by a whisker. Once we got ambushed by the enemy. After a battle lasting twelve hours we were able to get out of the circle without any loss. The loss for the enemy was 10. Us two friends got wounded. It was a slight wound but I am well. I recovered. I was most recently in the Oramar area. I became sick due to the freezing cold, came to a hospital against my will, forced by my friends. I have got medicine etc. I am recovering. I hope that you are well as a family. After resting for a while I will again return to my post. It has snowed a lot here. It is very cold. As, in general, I am continually on the move I don't get seriously affected …' [48] Attached to the email were 29 articles, all in Turkish, written by the offender under the name 'Jêhat Bêrtî' or 'Jêhat Nûda Yayla'. In particular: In the article titled, 'I got shot …', the offender likened the Guerrillas to butterflies, stating: 'They are getting shot by tanks, artillery, bullets that don't ask for an address, by chemicals hidden in the air. Flowers blossom in the blood flowing from their bodies to the soil while being shot so that a butterfly can land on. They are getting shot like butterflies for butterflies. To create a flower home for the butterflies burning in a fire, they get shot and provide blood for the soil. They are, in fact, getting shot .. As they get shot, the daughters of the land become more beautiful. As they get shot, the soil gets adorned with flowers. As they get shot, the motherland turns into the land of butterflies flying in the flower garden.' 'We have opted to be the butterfly land's children and defenders.' 'As I keep looking I know I will be shot. I will be shot. I know. For my heart is a butterfly land. I recognise them all. My heart knows then. None of them is nameless. In my butterfly land, butterfly Sema, butterfly Bêrîtan, butterfly Vîyan, butterfly Nûda, butterfly Renas, butterfly Zekiye, butterfly Adil, butterfly Kûtay, butterfly Brûsk, butterfly Rûken and butterfly Armanc flutter about. My heart is registering all of this like butterfly Halil's camera, like butterfly Ekin's diary, and butterfly Rojînda's poems.' The offender tells the reader to fall for beautiful things so they can be beautified: ' … fall for them with your skin, heart, mind; and be shot, not like a fickle, but through your forehead.' In the article titled 'February …', the offender refers to travelling to various guerrilla camps saying 'whichever guerrilla camp I visit, I quickly become its resident and settle there'. The offender mentions that 'when I learn that [the Guerrillas] do read my writings I cannot but feel proud'. In the article titled 'Recep's hat …', the offender provides commentary on the revolutionary operations announced by the PKK leadership. The offender states: 'Consequently, the intellectual Turks, the AKP Government and progressively whole of the Turkish state have plunged into the political and battle field with eyes closed or wild-eyed. The Kurds are patiently weaving their war and politics with foresight, by being organised and with considerable patience' 'One can very clearly see the connection between the success in the Guerrilla's action within the Revolutionary Operations process and his political concentration level.' In the article 'Watered borders …', the offender explains how he attaches himself to guerrilla groups. He recounts how the 'inexperienced' ask if he is a friend of the group and states that 'those who have got used to my habits, say 'Yes, he is a member of every group on the move'.' The offender refers to his 'fellow travellers' as being 'in a revolutionary operations march' and provides an anecdote of urinating on a border stone that is in view of a military post. The offender describes his feeling about crossing borders and states 'I understand better my enemy's enmity …'. Finally, he refers to taking souvenir photographs around the border stone. In the article 'Revolutionary operations are a mystery …'. The offender provides a metaphoric description of guerrillas and how they are mysterious: 'The guerrilla might get shot by most merciless weapons and best atomic technologies, but the numbers of the guerrilla do not decline they always increase. For the guerrilla is the child of the non-drying fountain, the unsubsiding wind, and the fertile soils. He does not get defeated, he forever multiplies. For in no story, tale or legend, heroes get defeated.' The offender further wrote: "For over a year I have shared a mystery with the children of mystery on many parts of the Kurdistan mountains. All that took place was before my eyes. I shared their hellish pains and quiet times, in comparison to which, all hells paled into insignificance.' The offender described how a large force gathers in preparation for action actions against military posts at Şitazina and Oramar and he describes the attacks as 'revolutionary operations'. In the article 'From the creators …', the offender wrote: 'I am amongst them, watching the Revolutionary Operations they started months ago on the Zagros mountain ranges. I have been assigned the duty of 'war observer'. I am confused as to how much of an observer, participant, narrator or listener I am, but everyone is looking at me with an eye that tells me it is necessary for me, to one way or another, take a couple of pictures of them and somehow send their stories somewhere. I am so deep into the story that, most of the time I say let someone tell it so that I can see my part in the story.' The offender then provides an account of the attack on a military post in the village of Rindikê in the Colamêrg area. He wrote: 'I was watching from a hill the marching of those who were going to live their stories. As well as feeling the pride of sharing [their] bread for days, I was also experiencing uneasiness. I know some of them wouldn't be returning. We would be left with their stories. They would live their stories, contribute a lot to our lives, and we would, as a duty, and with great pride, tell their stories to their comrades and peoples.' The offender then details the dying moments of three guerrillas from the attack. One commits suicide off a bridge before being captured and two use suicide bombs and their final radio transmissions are published in the article, one of which glorifies Abdullah Öcalan with 'long live leader Apo'. The offender explains that 'by integrating these stories, they are turning them into tomorrow's legend that will be listened to by tomorrow's free children'. In the article 'Don't underestimate Rindê!', the offender wrote about a goat named Rindê that followed a group of guerrillas back from an attack on a military post. The offender described the attack as follows: 'They went there to raid a lodge, a military post of the fascist soldiers of an imperialist state, now called 'kalekol', which used to be called 'karakol'. In the true sense of the word, it was pandemonium all round. On one hand, the sons and daughters of this people, with the hearts of hell, are coming down from the mountains to the villages and the plains. They are quietly streaming onto the herds of oppression, with their eyes looking as though saying 'If it's hell, let it be hell'. While in the military post, those monsters and oppressors of the weak and defenceless during daytime, become pathetic in the face of hell and cry 'my mum, my commander'. In the article 'The soul of time …', the offender states he has been 'monitoring the reasons, development and possible historical outcomes of the Revolutionary Operations initiative by HPG on the Botan-Behdinan border … for the past few months'."
The Director submitted that the reference to guerrillas as butterflies in the "I got shot" article was "supporting, promoting and, arguably, glorifying, death in the context of the activities being undertaken by the PKK". She emphasised the use of the word 'heroes' and that they would be legends that would be "listened to by tomorrow's free children".
Her Honour stated that the material demonstrated that the task of assessing the nature of the respondent's membership of the PKK during the charged period as "complex and highly contextual".
Her Honour stated that the principal features of the respondent's membership were that "he supported the struggles including in his writings, wore the uniform and insignia, carried arms and travelled with the guerrillas under their instruction". She accepted that the period of offending was relevant and that the respondent "was fully aware of the organisation's ideologies, motivation and objectives". She noted that the plea was entered on the basis the respondent knew that the PKK was engaged in, preparing, planning, assisting in or fostering acts that fell within the definition of "terrorist act" and the respondent was "taken to have known that the PKK was engaged in military conflict with Turkish armed forces and that it carried out acts made with the intention of influencing, by intimidation, the Turkish Government".
The Director submitted that the reference that the respondent "supported the struggle" underestimated what the respondent was doing, namely, promoting and glorifying their activities. She also referred to the statement that the activities engaged in by the PKK were "in the nature of terrorist acts" and "military conflict" rather than as terrorist acts as demonstrating that the sentencing judge wrongly took into account the underlying merits of the cause.
The sentencing judge stated it was "clear" that the respondent was "not a militant". She stated the acts relied upon were consistent with "the object of making a chronicle of the PKK struggle". She stated that the respondent's writings "were clearly supportive of the PKK" but accepted the submission by senior counsel for the respondent that the "writings were philosophical and almost poetic" and that the respondent's role was "a sympathetic chronicler of the events of the struggle". The Director, by contrast, submitted that to merely describe the respondent as supportive and a sympathetic chronicler understated the effect of those writings.
Her Honour then stated that on the strength of the material collected in the Crown's statement of facts "tempered by" her own assessment of the respondent's evidence at the trial, she "would characterise the nature of his informal membership of the PKK as being towards the lowest order of seriousness". She stated that it was "difficult to conceive of a lesser involvement that would still fall within the scope of the offence". She stated that if the respondent was "an independent embedded journalist that would not have amounted to 'membership'". She accepted that the respondent's relationship with the PKK was "more than that", noting his wearing of the PKK uniform, weaponry and his writings. She described his involvement as "that of a passive, sympathetic observer who sought to chronicle their struggle".
This portion of the judgment was criticised by the Director both at the hearing and in her written submissions. The Director submitted that the statements that it was "difficult to conceive of a lesser involvement" falling within the scope of the offence and that the respondent was merely "a sympathetic chronicler" were erroneous having regard to the lengthy involvement of the respondent, his wearing the uniform and carrying arms. She submitted that there were "all sorts of ways he could have done a lesser role as being an informal member of the PKK, rather than travelling [with the HPG] in mountainous regions in Kurdistan". She accepted that the Crown submitted before the sentencing judge that the offence fell within the low to midrange of objective seriousness but stated that it was made clear that a custodial sentence was sought.
In her written submissions in support of the appeal, the Director contended that the sentencing judge's "assessment must have been dependent on her Honour's evaluation of the merits of the PKK's political and ideological cause". She submitted that if the respondent had travelled for the same period and carried out the same activities in respect of a cause that she regarded as "less meritorious" it could not possibly be suggested that the offence was towards the lowest level of seriousness. She submitted that the sentencing judge "only had a passing regard to the highly organised and structured nature of the PKK" and minimised the fact that the respondent joined the organisation knowing of the terrorist acts it committed.
The Director submitted at the hearing that this was the crux of the main part of her argument. Referring to that part of the judgment in Benbrika which I have set out at [18] above, she submitted that the PKK was not a disorganised "ragtag group" like that postulated in Benbrika but "a highly organised, well-equipped, well-resourced group with a proven history of violent acts", accepting it was relevant that the PKK did not engage in the indiscriminate killings of civilians just for the sake of it and the fact that the area of operation of the PKK was geographically limited made the offence less serious.
The Director submitted that it was not relevant that the PKK purported to comply with the principles of International Humanitarian Law (see [61] below) although she accepted that a concession to the contrary was made in the Court below. She submitted that the fact that the PKK "might abide by the Geneva Conventions does not convert their acts from terrorist [acts] to non-terrorist acts". She submitted that even if the PKK might subscribe to the Geneva Conventions "the fact is that civilians still get killed" as well as soldiers, police and government workers who are all Turkish citizens. She submitted that the government has not stated that the fact that only these people get killed makes the offence less serious. She stated however that notwithstanding the proposition that it was inappropriate to rank terrorist organisations as it would be moving into the area of Parliament, she did not dispute that Benbrika was correctly decided. She described Benbrika as a "useful indication of principle which focuses on what an organisation has done as to indicate not only what they have done but what they are likely to do". She accepted that the question of how well-funded and well-organised the organisation and its members are can inform the seriousness of the offence.
She submitted that the moral culpability was informed by the question of whether the offender joined the organisation with his or her "eyes wide open" to "what the organisation stands for" and to the fact that the organisation is well-funded and organised. She submitted that the moral culpability is greater than going into a group where the offender did not know what the group was up to. She submitted this was consistent to what was said in Benbrika at [556] cited at [18] above.
The sentencing judge set out the history of the PKK, its membership and objectives in a manner which is uncontroversial. The history showed it is a well-established organisation with its more recent membership comprising approximately 7,000 members from Turkey, Syria, Iran and Iraq. The sentencing judge recorded its "main targets are the Turkish military and police, along with other Turkish government interests such as infrastructure and civilians associated with the government".
The sentencing judge noted that it was acknowledged by the Crown that there was a broad range of terrorist organisations which could be specified for the purpose of the statute. She stated that it was therefore "necessary to understand the process that underpins the listing (and re-listing) of terrorist organisations and to make an assessment of the particular features of the PKK in that context".
In dealing with that contextual question, the sentencing judge made significant reference to the report of Dr Victoria Sentas, an expert in counter-terrorism law. She noted Dr Sentas' opinion that the characterisation of the PKK as a terrorist organisation is highly contentious in international law citing the following passage from her report: "It is well established that the conflict between Turkey and the Kurds is classified as a non-international armed conflict, within the meaning of the Geneva Conventions, their additional protocols and the Rome Statute of the International Criminal Court of 17 July 1998. In international law, the PKK are a non-state actor engaged in a non-international armed conflict and a party to that conflict. The PKK understands itself as a party to an armed conflict. The PKK has made unilateral commitments to the United Nations to comply with International Humanitarian Law (IHL), and have agreed to deeds of commitment with Geneva Call regarding child recruitment, sexual violence and landmines. The conduct of both parties to the conflict is governed by IHL. IHL distinguishes between attacks against civilians and civilian objects, which are prohibited, and lawful attacks against military objects or personnel, which are not prohibited ('the principle of distinction'). Article 52(2) of Additional Protocol 1 (AP1) defines a 'military object' as: 'those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage'. IHL requires that attacks must be both necessary from a military perspective and distinct from civilian objectives. A 'civilian object' is defined as 'all objects, which are not military objectives'. Under IHL, the targeting of civilians and other acts of terror by state and non-state entities are unlawful and can be criminalized as war crimes and crimes against humanity by any state. It is only lawful violence against military objectives that cannot be considered a war crime under IHL."
However, her Honour noted that it was "important to be precise as to the relevance" of this material. She stated that Dr Sentas noted that Australian law does not expressly incorporate international humanitarian law and that an attempt to reform the Code so as to exclude conduct regulated by the law of armed conflict was rejected in 2006 and the listing of the PKK was an unqualified one. She stated that that was an indication of the legislative intention to condemn support for organisations that condone acts falling within the Code "even where such organisations have self-imposed regulation by the international law of armed conflict". However, she stated that it is relevant to have regard to the fact that the features of the PKK's rules of engagement "distinguish it from every other terrorist organisation addressed in other sentencing decisions concerning the same offence".
Her Honour stated in accordance with the approach in Benbrika it was necessary to make "an evaluative judgment of the nature of the acts committed by the PKK and the ideology that underpins them". She stated that "[t]he complexity of that assessment is neatly captured in the fact that association with the PKK has seen Kurds recognised variously as refugees, terrorists and de facto allies of the US Coalition".
In that context, the sentencing judge placed particular reliance on the following passage of the report of Dr Sentas: "At least since the early 2000s, the PKK's armed conflict with Turkey is aimed at internal self-determination for the Kurdish people rather than secession. The PKK's political goals to achieve this aim have been constitutional recognition of Kurdish rights, identity and culture and through a form of devolved government within the Turkish State referred to as 'democratic autonomy' and 'democratic confederalism'. The PKK has also routinely called for and engaged in peace negotiations and unilateral ceasefires. The PKK are comparable to no other listed non-state armed actor, both in structure, culture or politics. The PKK began with a classic Marxist-Leninist party structure in 1978 but has up to the present, diversified into a multifaceted and complex organisation, described as a 'party-complex': ' … a formation of parties and organizations comprising several parties (including the PKK as a party), a co-party which separately organizes women, sister parties in Iraq (PCDX), Iran (PJAK) and Syria (PYD) and guerrilla forces related to those parties. Next to this cluster of parties, the PKK established institutions through which integration and co-ordination of political practices take place.' The PKK is comprised of several political manifestations, some legislative and others executive in function. There are broad based, participatory local and regional councils with umbrella assemblies and there is a National Congress of Kurdistan (KNK) a pan-Kurdish platform with representatives from all over the world, including Australia. The PKK are a popular, grassroots social movement made up of diverse forms of assembly with mainstream support amongst Kurds in Turkey and in the diaspora. The complexity of understanding the PKK is not only at the level of political organisation and participation. 'The PKK' also reflects an idea and an aspiration for Kurdish identity and democratic freedom that has evolved through the economic, cultural, socio-political dynamics of the conflict itself. The PKK is intricately woven through Kurdish political identity, historic contemporary social relations and is also central to understanding the Kurdish people's connection to the PKK. It is well established sociologically that the PKK 'reinforces the idea of ethnic membership that bonds diaspora Kurds to the larger cause of Kurdish political social and cultural rights'. This conception of 'the PKK' as integral to social and cultural identity is generated by an existential and collective investment in the PKK by many Kurds as responsible for their survival as a people against genocide. In 2004 the PKK formally adopted principles developed by jailed PKK leader, Abdullah Öcalan, called 'democratic autonomy' and 'democratic confederalism' in a significant move towards direct democracy that do not involve taking state power. As Jongerden and Akaya explain: 'Democratic autonomy refers to practices in which people produce and reproduce the necessary and desired conditions for living through direct engagement and collaboration with one another … Democratic confederalism can be characterized as a bottom-up system for self-government'. In 2005 the Kurdistan Communities Union (KCK) was established as a societal organisation, or umbrella movement, to coordinate this new grass roots self-organisation. The KCK manifests as a network of participatory local people's assemblies at the level of villages and towns. The KCK's grounding in civil society has been understood to be integral to the future transformation of the PKK away from military combat to an entirely political formation. The PKK has sought to 'accommodate as many people as possible within the movement. It is difficult to involve non-violent activists and public figures in an armed group but easier to do so through different assemblies and organisations'. From 2009 Turkey renewed a program of mass arrest and prosecution of Kurdish civil society in a continuing operation against the KCK. Turkey understands the KCK, as the urban expression of the PKK, and charged it with aiming to create a 'parallel state'. Between 2009 and 2013 official figures from Turkey indicate it prosecuted almost 40,000 people for offences of membership of a terrorist organisation; aiding and abetting a terrorist organization; and attempting to destroy the country's unity and integrity. Mass arrests were intended to disrupt the political appeal of the KCK as a social movement."
Her Honour noted the Crown accepted that "the objective and acts of the PKK are geographically limited and submitted on that basis that involvement with the organisation 'should be treated as being somewhere between the lower to mid-range of the scale of seriousness'". She stated that that submission did not pay "due regard" to the matters addressed by Dr Sentas. She stated that whilst the history of conflict underpinned the decision to list the PKK as a terrorist organisation, a number of further features of the PKK may be noted. She identified these features at [77]-[85] of her judgment in the following terms: "[77] First, as noted by Dr Sentas, while the PKK has continuously been relisted because it meets the broad statutory threshold in s 102.1 of the Criminal Code, that does not amount to a determination that the PKK is a threat to Australian security. The absence of any direct positive security benefits for Australia in listing the PKK prompted two members of the Parliamentary Joint Committee on Intelligence and Security in 2006 to issue a minority report dissenting from the proposed relisting. Dr Sentas states that is the first and only time the Parliamentary Joint Committee on Intelligence and Security has been divided as to whether an organisation should be listed. [78] Dr Sentas states that there remains no available evidence that the PKK seeks to harm Australians or Australia's democratic institutions. Nor is there evidence to suggest that Australia faces any threat from the PKK. In support of the most recent re-listing by the Parliamentary Joint Committee of Intelligence and Security, the Department of Home Affairs advised: 'Turkey is a popular destination for Australians. While the PKK directs attacks against Turkish government and security force targets, civilian bystanders are treated as acceptable collateral … The PKK continues preparing and planning terrorist attacks in Turkey and Australians could be injured in such attacks.' [79] The list accordingly appears to have reached the point where its narrow focus is to protect Australians visiting Turkey. While that is a legitimate interest of the Australian government, so far as the material before me reveals (which includes government assessments of the nature of the organisation), no Australian has been killed or injured in violent incidents involving the PKK. Further, I accept, as submitted by Mr Boulten, that there is no evidence to suggest that any Australian citizen or resident was at risk of harm during the conflict in northern Iraq or in Turkey about which evidence was given during the offender's trial. [80] Secondly, the ideology of the PKK as expressed in the writings of Abdullah Öcalan has more in common with the values of our democracy than it does with extremist violent jihad. It is based on the notion of 'democratic confederalism', which Öcalan describes as being 'open towards other political groups and factions … flexible, multi-cultural, anti-monopolistic, and consensus-oriented' and an ideology of which 'ecology and feminism are central pillars'. I consider that an ideology advancing core democratic principles such as those is less serious than the ideologies of other listed terrorist organisations which, as noted by Mr Boulten, include promoting 'ethnic genocide, extreme misogyny and the punishment by death [of] the LGBTI community, apostates and non-Muslims'. [81] In his evidence in chief at the proceedings on sentence, Mr Lelikan was asked what it is that he supports that the PKK stands for. He replied that the PKK has struggled for Kurdish cultural and political rights and that their main goal is 'free and democratic society', which he supports. [82] That evidence resonates with the expert evidence of Dr Sentas, who states: 'When Kurds say, 'I am the PKK', this attests to the entwined social identity Kurds share with the PKK through collective experiences of trauma, assimilation and repression. Many Kurds will say they are the PKK, as a way of communicating that they survived Turkey's attempts to destroy Kurdish identity, only because of the PKK. The institutionalised policies of denial of the very existence of Kurdish identity are integral to many Kurdish people's solidarity and loyalty to the PKK, as both symbol and material vehicle for greater recognition and justice for the Kurds.' [83] Those aspects of the PKK and Mr Lelikan's conception of its objectives are relevant to both the objective seriousness of the offence and to Mr Lelikan's moral culpability for the offence. [84] It is also relevant to have regard to Australia's de facto alliance with the PKK during the Syrian conflict. Although that was in 2014, after the period of Mr Lelikan's offending, the evidence suggests that the ideological commitments and methods of the PKK did not change between the charged period and the events of 2014. Mr Boulten accordingly submitted that it is appropriate to have regard to those events in assessing the nature of the PKK. In that context, I turn again to the unchallenged evidence of the expert, Dr Sentas. She states: 'The causes of the breakdown of the tentative two year peace process between the PKK and Turkey begun in 2013 and ended in 2015 are complex. Events in Syria and Iraq were however decisive. When ISIS began to occupy Syrian cities in 2014, the PKK joined with the YPG in resistance, with the PKK widely understood as defacto US-coalition allies. For example, on 7 August 2014 an international coalition including Australia cooperated with the Kurds in a humanitarian intervention in the Sinjar province to Yezidi civilians under siege on Mount Sinjar from ISIS. The PKK is acknowledged to have been central in preventing genocide against the Yezidi people, establishing together with the YPG-YPJ an evacuation corridor for approximately up to 35,000 people.' [85] Returning to the definition of a terrorist act, which underpins the specification of an organisation as a terrorist organisation, the evidence establishes that acts of the PKK falling within that definition have been done or threatened with the intention of advancing the cause of self-determination of an ethnic group in a foreign state and with the intention of influencing the government of that state, by intimidation, to tolerate that self-determination. Whilst I accept that support for terrorism is inherently serious, the ideal of self-determination espoused by the PKK is not the most dangerous ideal of our times. That assessment confirms my overall characterisation of the present offence as being towards the lowest order of seriousness."
The Director extensively criticised this portion of the judgment. She submitted that the opinion of Dr Sentas that the characterisation of the PKK as a terrorist organisation was highly contested in international law was irrelevant. She criticised her Honour for saying that she must pay due regard to the listing, stating that it was necessary to pay "full regard".
She submitted that it was inappropriate to have regard to the rules of engagement as distinguishing the PKK from other terrorist organisations, although she accepted a concession to this effect was made in the Court below. However she stated that the concession was qualified by the statement that "even professing adherence to the United Nations … is not the final word".
Referring to her Honour's statement that it was necessary to have regard to the PKK's ideology, the Director submitted that it could only go to the likelihood of a terrorist act being committed. The Director also submitted that the history of armed conflict was not only a relevant factor as stated by her Honour, but rather "the most cogent factor".
In criticising [78] of the sentencing judgment, the Director pointed out that the minority report of the Joint Committee was given at the time of the initial listing and was delivered on the basis it would have been sufficient to proscribe the military wing of the PKK (the HPG). She submitted that the minority report in these circumstances would have little relevance having regard to the respondent's association with the HPG.
So far as [78] and [79] of the judgment were concerned, the Director submitted that whilst the Australian Government has an Australian focus, it was "not only an Australian focus". She submitted that it was "simply not open" to the sentencing judge to state that the listing appears to have reached a stage "where its narrow focus is to protect Australians visiting Turkey". In that regard, the Director referred to the Explanatory Statement which I have set out at [21] above noting the references to the fact that the PKK had been listed by other countries and the reference to Australia's obligations under the Charter of the United Nations Act 1945 (Cth).
In her written submissions, the Director submitted that this contention was supported by what was said in R v F [2007] QB 960 at 967, 971; [2007] EWCA Crim 243 and by the judgment of Bellew J in R v Zahab [2019] NSWSC 629 at [57].
The Director also criticised the conclusion in [80] that "an ideology advancing core democratic principles … is less serious than the ideologies of other listed terrorist organisations". She submitted what was relevant is the use of terrorist acts to advance that ideology. Similarly, she submitted referring to [84] of the sentencing judgment that the fact that the PKK formed various alliances during the course of the Middle Eastern conflicts was not a relevant factor. In her written submissions, she contended that the cases dealing with the issue in the United Kingdom have made it clear that the nature of the terrorist organisation and its cause is irrelevant in sentencing for a terrorist offence: R v Sarwar [2015] EWCA Crim 1886; [2016] 1 CR App R (S) 54 at [41]; R v F at 970, 972; R v Kahar; R v Ziamini [2016] EWCA Crim 568; [2017] 2 All ER 782; [2016] 1 WLR 3156; see also IM v R [2019] NSWCCA 107 at [45]: Director of Public Prosecutions (Cth) v El Sabsabi [2017] VSCA 160 at [61].
Similarly in relation to [85], the Director submitted that the primary judge was in error in focusing on the aims of the organisation rather than its methods. She submitted that "[a]n organisation for self-determination as an ideal could indeed be a very dangerous organisation" depending on how it sought to achieve that aim.
In dealing with the respondent's subjective case, the sentencing judge referred to the background facts which I have set out above and accepted the submission that the respondent's membership of the PKK was "intimately connected" to his "experience of oppression, persecution and discrimination" whilst growing up. She said this "significantly" reduced his moral culpability in accordance with the principles in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37. The Director, whilst not contending that there was an error in applying the Bugmy principles, submitted that the persecution suffered by the respondent explained rather than excused his conduct.
The sentencing judge also referred to the opinion of a forensic psychiatrist, Dr Andrew Ellis, that it was likely that the respondent "suffered a major depressive episode in 2016-2017 during and after his release from custody", the episode "precipitated by his exposure to military trauma and … isolation while in custody". She noted that the respondent also gave evidence that he was "severely harassed by other inmates when remanded in custody in the area that also housed supporters of ISIS". She noted that Dr Ellis expressed the opinion that the respondent displayed "few historical risk factors associated with future risk of interpersonal violence".
The sentencing judge accepted that the respondent had "renounced any ideological commitment to violence". She noted that the respondent's evidence was that he continued to support the "political objectives" of the PKK but that he had "no intention" of returning to Turkey, Iraq, Syria or any other country in the region where Kurdish people lived, nor to engage in any military or guerrilla activity. She noted that the respondent stated that "[i]n principle he supports the PKK's military efforts against Turkish forces as a last resort against violent persecution" but also stated that he would "not contribute financially or materially to the PKK" and was "willing to cooperate with ASIO in determining the boundaries between acceptable and unacceptable political conduct".
Her Honour accepted the respondent's evidence to the effect he liked "living in Australia because of its multiculturalism, peace and democracy". She stated that "what it means to support the PKK has changed over the years as the objectives of the organisation have shifted towards internal self-determination rather than the formation of a separate Kurdish state". She stated that she was satisfied that the respondent had "renounced all violent or criminal forms of support for the PKK" and the sympathy and support which he retained "may be viewed benignly when understood through the lens of his personal background".
Her Honour accepted the Crown's submission that the respondent's offences which I have set out at [31] and [35] above should be taken into account in the assessment of the respondent's character. However, she stated that "what they show as to his character in the context of his personal history is a different matter". She stated that it was "difficult to assimilate the manifestations of generations of Kurdish struggle into the peculiarly rigid taxonomy of Australian criminal law". She said that she was not satisfied that the respondent's "criminal record demonstrates bad character or any dangerous propensity" such as to deprive the respondent of any leniency that might otherwise be afforded to him.
The Director submitted that this approach ignored the fact that there was "a continuing attitude of disobedience to the law" which should properly be taken into account. The Director submitted that the fact that the sentencing judge did not do so indicated that "she was viewing that criminality in a different way than the way she should have viewed it".
In dealing with the appropriate sentence, her Honour noted that the Crown provided a table of offences and reliance was placed on a series of general principles said to apply to this class of case. She stated that as "may ultimately have been acknowledged, if implicitly, the present offence is far removed from the kind of offences considered in the so-called comparable cases".
Her Honour rejected the Crown's submission that no sentence other than a term of imprisonment would meet the requirement to impose a sentence or make an order which is appropriate in all the circumstances of the offence.
She stated in reaching that conclusion that she had regard to the fact that the respondent had "already spent almost three months in custody in conditions of extreme hardship". She concluded that in the unusual circumstances of the case, the offence did not require "a substantial degree of punishment or deterrence such as to warrant the imposition of a custodial sentence". She stated that the "weight to be given to denunciation and deterrence in this case must be assessed as one of the many complexities of the case". She stated that these considerations did not militate against the order she proposed.
The Director stated that "a clear submission" was made below that only a custodial sentence was appropriate otherwise "there would be appellable error". She stated in these circumstances, the sentencing judge overstated the position in stating that it was acknowledged that the present offence was "far removed from the kinds of offences considered in the so-called comparable cases". She submitted that although the respondent had spent some time in custody, it was "not sufficient" given the nature and length of the offending, and the respondent's connections with the group. She submitted that this meant that the time spent in prison did "not properly reflect the criminality".
The Director submitted that the sentencing judge did not consider general deterrence which is "very important". She submitted that this went to the issue of the inadequacy of the sentence. She submitted that the reason that the sentencing judge came to her conclusion could only have been that she went beyond the listing. She submitted that even if the respondent had renounced violence, the sentence was manifestly inadequate because there had to be "a strong general deterrent component".
In relation to the residual discretion, the Director accepted the withdrawal of the concessions made below was relevant in determining whether or not the residual discretion should be exercised. However, she stated that the submission that the rules of engagement could be taken into account was modified by the statement made at the hearing that it should not be given much weight.
The Director accepted that the Crown on two occasions stated to the sentencing judge that she could look at the nature and quality of the organisation and its ideology. She said that it was "unfortunate … that those words were used" but it was necessary to look at "the whole of the argument". She submitted that Benbrika has been referred to "again and again" and the only additional matter that could be taken into account was that the activities of the PKK were geographically limited.

The respondent's submissions

Senior counsel for the respondent submitted the sentencing judge "did not go behind the listing, rather she engaged in an orthodox sentencing exercise", part of which involved an analysis of the organisation and the respondent's participation in it.
He submitted that at the heart of ground 1 of the grounds of appeal is an assertion that the Court when sentencing cannot engage in an assessment of the nature of the organisation. He submitted that would be contrary to fundamental sentencing principles. He submitted that it "would create a special form of sentencing" for offences of this nature. He submitted the elements of the offence as created by Parliament dictate that any membership of a declared organisation is a serious crime. He submitted that other than that, the parameters were "fixed by evidence" which "is capable of leading a sentencing judge to a proper conclusion".
Senior counsel for the respondent submitted that this was "an unusual case". He submitted that it was the only case which has been dealt with in Australia "where the terrorist organisation was not a fundamentalist jihadist organisation, where the objectives of the organisation were anti-Western" and "where the concept of terrorism … involved extreme and random violence" and where the ideology was "an anathema … to common human decency". He submitted that the organisation was "not one that propounded random violence", nor was it "global in scale".
Senior counsel for the respondent submitted there were two types of terrorist organisations, the proscribed version and the unproscribed variety which is "proved by demonstrating that the organisation exists and … fosters or prepares or carries out terrorist acts". He said that at the heart of both organisations is the concept of a terrorist act. He submitted that "the motivation of the organisation is elemental to a consideration of the crime".
Senior counsel for the respondent submitted that what the sentencing judge did was to have regard to the nature of the respondent's belief about what the organisation has done and what they espouse. He submitted that these beliefs were well-founded in the evidence and enabled the sentencing judge "to make a clear assessment" that the respondent's "criminality was significantly different" to the criminality of persons who normally are charged with being a member of a terrorist organisation.
Senior counsel for the respondent submitted that proscription goes to liability, "but the question of penalty involves a qualitative assessment of the seriousness of the offence" and "the need for protection of the community". He submitted there was a need to understand what the organisation is in order to assess the offender individually. He stated that it was accepted by both parties that there was "a continuum of seriousness … where at the heart of the offending conduct is membership" and that the nature of the organisation is critical. He said this was supported by the concessions made by the Crown both at first instance and on appeal.
He submitted there was "a qualitative difference between an organisation which is basically a proto-state but a non-state actor engaged in directed armed conflict with a state actor … where civilians unfortunately are killed, compared with the mindless and perverted objectives of an organisation such as Al-Qaeda or ISIS".
He submitted that Courts could also have regard to what the organisation is likely to do in the future, whether civilians are deliberately targeted, whether the respondent's objectives in joining the organisation are deliberate or uninformed, whether the organisation acts contrary to human rights instruments and protocols and the ideology, at least insofar as is relevant, to the likelihood of a terrorist act in the future.
Senior counsel for the respondent submitted that once it is accepted that the offence is committed as a result of the proscription of the organisation, then in that sense assessment of the ideology has no relevance. He submitted however that in dealing with issues relating to sentence, a comparison of the organisation's ideology compared to that of other terrorist organisations is inevitable. He submitted that if the organisation does not randomly kill people, does not wish to overthrow all democratic governments and espouses generally Western democratic principles, "those characteristics cannot be ignored".
Senior counsel for the respondent pointed to that part of the agreed facts that dealt with the nature and scope of the PKK. He stated the report of Dr Sentas was tendered without objection and the parties made submissions that the sentencing judge would find facts based upon the evidence. He referred to the discussion concerning the relevance of the material and that it was made clear by the parties at the hearing that it was all relevant and the sentencing judge could use it. He stated that included the minority Parliamentary Joint Committee report that the respondent tendered without objection.
Senior counsel for the respondent also referred to the respondent's evidence at the sentencing hearing. He accepted that the respondent stated that he maintained support for the armed struggle of the PKK, but explained this was because the PKK had struggled for Kurdish political rights for 40 years and their main goal was a free and democratic society. In that evidence, the respondent stated that one of the benefits of being an Australian citizen was that there was no discrimination. He also stated he believed in peaceful co-existence, had never been violent and did not see himself as a threat to Australia. He described the reason for his support for the PKK and the military effort against the Turkish armed forces in the following terms: "In Turkey the Kurdish people, the Kurds, have legal democratic parties since 1990s. One of my brothers, he was a member of the legal party as well. From, as much as I know, from 1990s until today, more than 40,000, 50,000 Kurds has been arrested by the government for their political activities. Now there are more than 10,000 of the HTP, people democratic party, including their co-chairs, Members of Parliament, mayors, hundreds of mayors, sending to gaol for 18 years, 15 years as a member of the terrorist organisation. So they have done nothing wrong. PKK has to use violence against the Turkish states because there was no other choice. Not that the Kurds or the PKK loss, they have to resort to violence now. The gun recourse now, there was no other choice for the Kurds to protect themselves against the government's state terror."
Senior counsel for the respondent in this context also referred to the harsh treatment the respondent had received at the hands of the Turkish authorities in his youth which reduced his moral culpability.
Senior counsel for the respondent noted that the Crown in submissions before the sentencing judge accepted that the respondent no longer shared anything with the PKK "other than ideological thought or tendencies". He also noted that the Crown in dealing with the so-called comparable cases, stated they referred to different organisations with different global intentions.
Senior counsel for the respondent also referred to the submission made by the Crown to the sentencing judge to the following effect: "The issue seems to us, and in the Crown's submission is not so much that your Honour needs to go behind the listing. The fact of the matter is, whether one agrees with it politically or otherwise, is that the PKK is and remains a listed terrorist organisation and what flows from that is although the Crown accepts that not all terrorist organisations are the same and, of course, we accept that the PKK is in a very different category to the Islamic State, that your Honour still needs to give account for the fact that the organisation not only was listed at the relevant time but still is and needs to give account for the fact that the offender has pleaded guilty to his membership, albeit in an informal sense, but the Crown says an active informal sense."
He described this as a concession that some form of qualitative assessment of the PKK was necessary and submitted it was based on an assumption that both parties shared that the scope of the activities of the organisation are necessarily driven by its focus and objectives.
Senior counsel for the respondent submitted that a number of criticisms made of the sentencing judge were on their face unjustified.
In that context, he submitted that her Honour's reference to acts falling within the definition of terrorist acts and to military conflict contained in [54] of her judgment (see [51] above) were statements taken from his submissions as to the basis of the plea. He also submitted that the writings referred to by the sentencing judge were writings contained in the agreed statement of facts.
Senior counsel for the respondent also submitted that it was relevant to take into account the organisation's ideology in considering the need for incapacitation and protection of the community.
Senior counsel for the respondent submitted that the photographs with PKK leaders were explained at the trial by the respondent that it was in the Mount Qandil region and he received permission to attend important meetings and he was there in his role as a journalist.
Senior counsel for the respondent referred to the English decisions to which I have referred at [72] above. He noted that they were not mentioned before the sentencing judge. He submitted R v F was a case about liability, the defence to the charge being that it was just and right to wage war against Colonel Gadhafi. He accepted however, that what was said in that case has been applied in sentencing judgments.
Senior counsel for the respondent submitted that R v Kahar was "not about membership", but rather the relevant offence was preparation for a terrorist act, not a case which only involved an assessment of membership. He also referred to the fact that the Court in Kahar sought observations from the Attorney General and Her Majesty's Ministers on the approach which should be adopted to the identity of the particular terrorist organisation in whose name the terrorist acts were committed and, in particular, whether an offence committed in favour of one organisation should be considered less serious than that committed in favour of another, and whether this should be a relevant factor in sentencing: (see [2016] EWCA Crim 568; [2017] 2 All ER 782; [2016] 1 WLR 3156 at [11]). It was submitted in that context that the English Court of Appeal accepted direction from the Executive.
With respect this does not seem to me correct. Regardless of whether the approach was one which would (or could) be adopted in this country, all that occurred was certain submissions made by the Secretary of State were made with which the Court agreed and stated that they were consistent with earlier authority.
Senior counsel for the respondent was also critical of some of the submissions made by the Secretary of State in Kahar which were adopted by the Court. He submitted that the fact that Parliament has legislated against all terrorist organisations without distinguishing between causes says nothing about how the Court should go about sentencing. He submitted that such an assessment is commonly made in the case of other criminal organisations. He accepted that it was more difficult once one gets into the realm of political ideology but it does not mean that it cannot be done. He submitted that in the present case there was evidence and the sentencing judge had regard to it. However, he accepted that there was no call to determine which was the more worthy of the two participants in the conflict.
Senior counsel for the respondent submitted that the sentencing judge did not take the worthiness of the cause into consideration. He submitted that her Honour's remarks at [85] of her judgment (see [65] above) was assessing where "on the continuum of seriousness" this set of ideas was in assessing further dangerousness. He submitted that "a decision on the merits" of the cause would involve "a finding that a free Kurdish territory is deserved and is noble" and the sentencing judge made no such finding.
Senior counsel for the respondent submitted that Australia's de facto alliance with the PKK referred to at [84] in her Honour's judgment (see [65] above) was relevant because it helped to "point to how serious it was to be involved in the organisation" whose objectives in the charged period were "much the same, if not exactly the same" as when the Australian Armed Forces formed an alliance with them.
In relation to ground 1(d) of the grounds of appeal, senior counsel for the respondent submitted that it was accepted in Sarwar that attacking British forces was an aggravating factor. In relation to ground 1(e) he stated that the sentencing judge did not make much of the minority report of the Joint Parliamentary Committee.
In relation to ground 1(f), senior counsel for the respondent submitted that a review of [76]-[79] of the judgment of the sentencing judge showed that she was aware that "the listing was underpinned by the attacks on the Turkish Government and collateral damage caused to civilians".
In relation to ground 3 of the grounds of appeal, senior counsel for the respondent submitted that what the sentencing judge was referring to in her comments about "the peculiarly rigid taxonomy of Australian criminal law" was the rigid approach to sentencing, that if you had "a criminal record you were either disentitled to leniency or it acts as a positive incentive for further punishment for the protection of the community".
Senior counsel for the respondent submitted that her Honour was correct in stating that she was not satisfied that the prior offences demonstrated that the respondent had "any dangerous propensity such as to deprive him of the benefit of any leniency".
Senior counsel for the respondent referred to the respondent's evidence that whilst in hospital, he visited other patients suffering from burns, telling them not to give up hope and about the message that he received from Abdullah Öcalan that "our philosophy of life is to live and make live, not to die or to kill". He also referred to the respondent's evidence that whilst he was in hospital, he decided that he would write and try to be influential in the struggles of the Kurdish people. Senior counsel for the respondent submitted that underlying that was a desire and respect for life which is relevant to the assessment of the sentencing judge that he was not violent.

A Sentencing principles in the present case

Senior counsel for the respondent was correct in pointing out that the same principles are applicable in sentencing for this offence as are applicable in sentencing for other Federal offences. Thus, consistent with s 16A of the Crimes Act 1914 (Cth), the Court is required to "impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence" taking into account (in addition to other matters) matters in s 16A(2) so far as are relevant and known to the Court.
In the present case, as in all cases, that includes making an assessment of the objective seriousness of the offence and the offender's moral culpability. The issue in this case is the approach to be taken in making these assessments.
Neither party disputed what was said in Benbrika at [155]-[157] (cited above at [18]). The Victorian Court of Appeal in those passages stated at [555] that in determining the objective seriousness of the offence, "the history of the organisation is relevant because it informs the nature of the organisation". That may be accepted but it does not follow that the consideration extends to the merits of the organisation's objectives.
In the present case, the PKK has been proscribed as a terrorist organisation. A precondition for such a proscription is that to the satisfaction of the Minister the organisation is "directly or indirectly engaged in, preparing, planning or assisting in or fostering the doing of a terrorist act" or "advocates the doing of a terrorist act": s 102.1(2) Crimes Act. I have set out the definition of terrorist organisation and terrorist act at [8]-[9] above.
At [13]-[14] above I have set out the history of the provision. Importantly, the provision is described in the Explanatory Memorandum as one which provides "an effective and accountable mechanism … to outlaw terrorist organisations and organisations that threaten the integrity and security of Australia or another country" and to send "a clear and unequivocal message to those who might involve themselves with those organisations that if they do so they will face the full weight of the law".
The legislation thus does not draw any distinction between terrorist organisations by reference to the merits of the organisation. To take the merits of a terrorist organisation into account essentially would involve the consideration of the ideology of the organisation which, in my view, is a matter for the legislature in considering whether to declare that the organisation in question is a terrorist organisation.
That is not to say that the history and objectives of the organisation cannot be taken into account, as the nature of the organisation's past activities and its potential future activities are relevant to a determination of the objective seriousness of the offence of membership of a terrorist organisation. Thus in the present case, it is relevant that the activities of the PKK have taken place in a relatively confined geographical location and does not present a direct threat to this country.
Further, it is relevant that the PKK, as a matter of fact, neither advocates nor engages in the indiscriminate killing of civilians. In the passage from the Joint Committee Report cited by her Honour at [78] of her judgment (see [65] above) it is pointed out the PKK directs its activities against the Turkish Government and security forces. However, the extent to which the objective seriousness is lessened by this factor is doubtful. The fact that a limited class of persons are targeted does not mean that the terrorist acts are not serious, particularly when, as pointed out in the extract from the Joint Parliamentary Report, "civilian bystanders are treated as acceptable collateral". The relevant classification is that carried out by the government of this country which has classified the PKK as a terrorist organisation.
In that context, I do not think that it is relevant to the objective seriousness of the offence that the PKK has made the commitment to international humanitarian law. It is more relevant to look at what the PKK has done and what it is proposing. The fact that the PKK does not recruit children, engage in sexual violence or uses landmines lessens the seriousness of joining the organisation compared to one that does, but the fact remains that soldiers, government officials and citizens are killed as a result of their activities. Nor is it relevant in my opinion that Dr Sentas considers the conflict between Turkey and the Kurds is "classified as a non-international armed conflict, within the meaning of the Geneva Conventions.
It is also relevant to take into account the fact that the PKK is a well-organised and resourced organisation as it was at the time of the charged offence. In Benbrika at [555] the Victorian Court of Appeal drew the distinction between what it described as a "rag-tag collection of malcontents" and a terrorist organisation with a proven record of criminality, involving the worst terrorist acts imaginable. Although the latter description is certainly quite inapt to describe the PKK, the fact that it is an established organisation which has shown an intention and capacity to carry out terrorists acts is relevant to the objective seriousness of the offence.
It is also necessary to consider the moral culpability of the offender.
In the present case, there can be no doubt that the respondent joined the organisation and maintained his membership with the full knowledge of its objectives and the method by which it sought to achieve them. His moral culpability is greater than that of a person who joined the organisation with little knowledge of its aims and methods. Further, the length of time that the respondent remained a member and the extent of his involvement is relevant to the assessment of his culpability.
I do not think that the respondent's belief in the rightness of the cause of itself affects his moral culpability. However, the fact that he joined the organisation as a result of the cruel treatment he received at the hands of the Turkish authorities in his youth mitigates that culpability.
Finally, the importance of general deterrence in dealing with offences of this nature needs to be taken into account: Alou v R (2019) 373 ALR 349; [2019] NSWCCA 231 at [131]-[135] and the cases there cited.
What I have written above is I think consistent with what was said in Benbrika. I have referred to the English cases at [72] above. Whilst it is true as senior counsel for the respondent pointed out that the English cases, in particular Kahar, were dealing with the offence of doing acts in preparation for terrorist acts, they do provide support for the proposition that in sentencing for terrorist offences, the merits of the cause is not a relevant factor. Further, there is no authority in this country to support the contrary proposition that the Court can assess the merits of the political ideology of the organisation in assessing the objective seriousness of the offence. For the reasons I have set out, I do not think it appropriate to do so.

B Did her Honour err in sentencing the respondent?

Although the sentencing judge stated in effect that she could not go behind the listing, she at least implicitly took into account what might be described as the underlying merits of the PKK cause compared to that of other terrorist organisations. This was particularly demonstrated in her reliance on what she correctly described as "the unchallenged evidence" of Dr Sentas.
This is demonstrated by her reference to Dr Sentas' statement that "the established cause of the armed conflict is Turkey's historic suppression of Kurdish aspirations for self-determination … through processes of cultural genocide" (see [28] above), her description of PKK's political goal for internal self-determination for the Kurdish people by "constitutional recognition of Kurdish rights, identity and culture" and her description of Turkish persecution of Kurdish civil society from 2009: see [64] above.
It was in that context that her Honour stated that the acceptance by the Crown that the acts of the PKK were "geographically limited" and as a consequence "involvement with the organisation 'should be treated as being somewhere between the lower to mid-range of the scale of seriousness'", did not pay due regard to the matters addressed by Dr Sentas: see [76] of her Honour's judgment set out at [65] above.
As a consequence of this approach, her Honour expressed the views set out in [80]-[85] cited above. Thus, she stated at [80] "the ideology of the PKK … has more in common with the values of our democracy than it does with extremist violent jihad". Although a comparison of the acts carried out by the PKK compared with those of jihadist organisations were undoubtedly relevant, I do not think the fact that the underlying ideology may be seen to be more compatible with democratic values lessens the impact of terrorist acts or their seriousness. The same may be said of her Honour's remarks in [84]-[85] of her judgment. At the risk of repetition, whilst I accept the activities of the PKK are relevant in assessing the objective seriousness of the offence, the ideological motivation which underpins them is not.
It follows that grounds 1(a), (b) and (g) of the grounds of appeal are made out.
So far as ground 1(c) is concerned, it also seems to be irrelevant for the reasons I have given that the classification of the PKK as a terrorist organisation is contentious. I also think that it is not relevant that the PKK has declared itself bound by the Geneva Conventions and their Additional Protocols. However, what is relevant and distinguishes the PKK from other terrorist organisations is that it does not as a matter of fact intentionally target innocent civilians or commit any of the atrocities for which organisations such as ISIS are notorious.
I do not think that grounds 1(d) and (e) are made out. In relation to ground 1(d), the Crown accepted that the limited geographic area of activity of the PKK was relevant, whilst the sentencing judge made only a passing reference to the minority report of the Joint Committee.
However, I do not think that her Honour's comment at [79] that "[t]he listing … appears to have reached the point where its narrow focus is to protect Australians visiting Turkey" was correct. That may have been one of its objectives but neither the listing, nor the statement of reasons says that was its principal purpose. However having regard to the fact that it was accepted that the geographical limitation was a relevant matter, I do not regard this as material.
Ground 2 of the grounds of appeal asserts that her Honour erred in her assessment of the objective seriousness of the offence as "being towards the lowest order of seriousness". Particular complaint was made of her comment that it was "difficult to conceive of a lesser involvement that would still fall within the scope of the offence". Whilst I agree with the Director that the fact that the respondent travelled with the HPG guerrillas over an extended period of time and his writings show him as being more than "a sympathetic chronicler of the events" but rather a person who is glorifying the guerrilla activities and that, in those circumstances, a far lesser involvement in the activities of the organisation could be contemplated, the ultimate conclusion of her Honour that the offence was towards the lowest level of seriousness was not significantly different from the submission by the Crown below that the offence was "between the lower to mid-range of the scale of seriousness". However, her assessment, in my opinion, was affected by the matters the subject of grounds 1(a), (b), (c) and (g) of the grounds of appeal which I have found to have been made out.
So far as ground 3 is concerned, her Honour as I have pointed out at [78] above, accepted that it was necessary to take the respondent's earlier offending into account. However, whatever the sentencing judge was precisely referring to by the expression "the peculiarly rigid taxonomy of Australian criminal law", her conclusion that the respondent's criminal record did not demonstrate "bad character or any dangerous propensity such as to deprive him of the benefit of any leniency" was well open to her.
The offences were committed in February 1999 and 2007. The first offence showed that at least in 1999 the respondent was prepared to inflict damage to property whilst carrying an offensive weapon in support of the PKK's aims. It was not clear what the Paris offence was but it was at least clear that the sentencing court did not consider that it warranted a custodial sentence. Both these offences could be described as historical offences having little bearing on the assessment of the respondent's character or propensity to violence in 2019.
If his actions on 1 October 1999 of setting fire to himself in support of the PKK's cause could be described as an offence, his motivation for doing so "for peace, for Kurdistan" and his subsequent activities whilst recovering from the burns referred to by senior counsel for the respondent (see [116] above) show that this action, whether considered alone or in conjunction with the other offences, does not lead to the conclusion that he was a person of bad character.
Further, the sentencing judge accepted that the respondent had "renounced any ideological commitment to violence" (see [76] above) and would "not contribute financially or materially to the PKK". Her Honour was correct in stating that the fact that he continued to support the PKK's objections (no doubt in common with many other Kurdish people) did not lead to the conclusion that he was either of bad character or had any dangerous propensity.
Because of the conclusion I have reached on ground 1, it is unnecessary to deal with ground 4. However, it should be said that there is force in the Director's complaint that the sentencing judge did not give weight to general deterrence, an important factor in sentencing for this type of offence. Although her Honour referred at [27] to the submission of the Crown that general deterrence was a factor which needed to be taken into account, her Honour made no further reference to it. However, as this was not a specific ground of appeal there is no need to consider it further.

C The residual discretion

Having regard to the conclusion which I have reached, it is necessary to consider whether the Crown has negated any reason why the residual discretion of the Court not to interfere with the sentence should not be exercised: R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489 at [12]; CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9 at [66].
In my opinion, the Director has not overcome this hurdle. First, although the Crown contended in the Court below that a custodial sentence was the only appropriate sentence, it did accept that the offence fell in the middle to low range of seriousness.
Second, in the Court below the Crown conceded that it was appropriate to take into account the PKK's stated commitment to international humanitarian law, a concession which in my opinion was incorrect and was withdrawn at the hearing of the appeal.
Third, on two occasions the Crown stated to the sentencing judge that she could look at the nature and quality of the organisation: see [86] above. Whether or not it was unfortunate as the Director accepted, the sentencing judge could not be criticised for proceeding on that basis rather than the manner that the Crown contended for in this Court.
Fourth, in this context, the case was conducted on the basis that the whole of the evidence before the sentencing judge, including the report of Dr Sentas, was relevant to the sentencing exercise, a position different to that taken by the Director on the appeal.
Fifth, despite a brief period of harsh incarceration, the respondent has been at liberty since the time he was charged, including the period in which he has been subject to the Community Correction Order. In that period, he has done nothing to suggest that the sentencing judge's assessment of his character was incorrect and his affidavit of 16 July 2019 shows that he has complied with the terms of the Community Correction Order.
In these circumstances, in the exercise of the residual discretion, I would not interfere with the sentence.

Conclusion

In the result, the appeal should be dismissed.
BELL P: I have had the benefit of reading the careful analysis of the Chief Justice with whose reasons I agree.
Consistently with those reasons, there is a line over which courts should not trespass when assessing the objective seriousness of the offence of being a member of a proscribed terrorist organisation. Value judgments as to the ideology and motivations of a particular terrorist organisation are quintessentially a matter for the executive government, and a court exercising federal criminal jurisdiction is not equipped and is ill-suited to making an assessment of such matters. Such an assessment may be quite invidious, not least in circumstances where the terrorist organisation is engaged in an historic campaign against a country with which Australian has sovereign diplomatic relations.
In the circumstances of this case, I also agree with what the Chief Justice has said in relation to the exercise of the residual discretion, particularly in circumstances where, as the primary judge noted, the respondent spent almost 3 months in custody prior to the grant of conditional bail in circumstances where the evidence suggested that the conditions in which he was held likely contributed to a major depressive episode.
DAVIES J: I agree with the Chief Justice for the reasons he provides.

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United Nations Act 1945(Cth)

R v Lelikan

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