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R v Kruezi

 

[2020] QCA 222

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kruezi [2020] QCA 222

PARTIES:

R

v

KRUEZI, Agim

(applicant)

FILE NO/S:

CA No 312 of 2018 SC No 806 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 31 July 2018 (Atkinson J)

DELIVERED ON:

13 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2020

JUDGES:

McMurdo and Mullins JJA and Williams J

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to preparations for incursions into a foreign State (count 1) and acts in preparation for, or planning, a terrorist act (count 3) – where s 19AG Crimes Act 1914 (Cth) required that, for terrorism offences, three-quarters of the sentence must be served before being eligible for parole – where only count 3 was a terrorism offence – where the applicant was sentenced to imprisonment for 17 years and four months with a non-parole period of 13 years for count 3, and a concurrent period of imprisonment of three years and six months on count 1 – where the sentencing judge increased the sentence on count 3 to take into account the offending of count 1, but ameliorated the sentence on count 3 to take into account the applicant’s plea of guilty and that the minimum non-parole period did not apply to count 1 – whether the sentencing judge erred in imposing concurrent rather than cumulative sentences

SENTENCE – SENTENCING ORDERS – NON-PAROLE PERIOD OR MINIMUM TERM – QUEENSLAND – FEDERAL OFFENDERS – where the applicant pleaded guilty to preparations for incursions into a foreign State (count 1) and acts in preparation for, or planning, a terrorist act (count 3) – where the sentencing judge followed the Nagy approach to sentencing and increased the sentence on count 3 to take into account the offending of count 1 but ameliorated the sentence on count 3 to take into account that the minimum non-parole period did not apply to count 1 – where s 16A(1) Crimes Act 1914 (Cth) required that a sentence for Commonwealth offences be “of a severity appropriate in all the circumstances of the offence” – where the mandatory non-parole period for count 3 could have the collateral consequence that the applicant would serve a longer period of actual imprisonment – whether the sentencing judge erred in applying the Nagy approach to sentencing for Commonwealth offences

Crimes Act 1914 (Cth), s 16A, s 17A, s 19AB, s 19AG Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) s 6, s 7 Criminal Code Act 1995 (Cth), s 3, s 101.6

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited

Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39, cited

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited

Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15, cited

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, considered

R v Armstrong [2016] QCA 243, cited

R v Derks [2011] QCA 295, cited

R v Elomar (2010) 264 ALR 759; [2010] NSWSC 10, cited

R v Kirke [2020] QCA 53, considered

R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered

COUNSEL:

A J Kimmins with P Lange for the applicant L K Crowley QC, with A Hughes, for the respondent

SOLICITORS:

Birchgrove Legal for the applicant Director of Public Prosecutions (Commonwealth) for the respondent

  1. [1]
    McMURDO AND MULLINS JJA:  Mr Kruezi applies for leave to appeal against the sentences imposed on him on 31 July 2018 for preparations for incursions into a foreign State (count 1) and acts in preparation for, or planning, a terrorist act (count 3) after he pleaded guilty in the Supreme Court on 8 June 2018.  Mr Kruezi was sentenced to imprisonment for 17 years and four months with a non-parole period of 13 years on count 3.  He was sentenced to a concurrent period of imprisonment of three years and six months on count 1.  A pre-sentence custody declaration was made in respect of the period of 972 days he had spent in pre-sentence custody between 10 September 2014 and 8 May 2017.
  2. [2]
    There are two grounds of appeal which focus on the process applied by the learned sentencing judge to reach the ultimate sentences, including fixing the non-parole period:
  1. (1)
    the sentencing judge erred in finding that the single non-parole period to be fixed in accordance with s 19AB(1) of the Crimes Act 1914 (Cth) (the Act) for both offences was, pursuant to s 19AG(2) of the Act, required to be no less than three-quarters of the aggregate head sentence for both offences, notwithstanding the fact that s 19AG(2) did not apply to count 1; and
  1. (2)
    the sentencing judge erred in increasing the sentence for count 3 to reflect the criminality of count 1 and then mitigating that sentence to take into account the perceived effects of s 19AG of the Act.
  1. [3]
    The applicant, in effect, abandoned the ground of appeal that the sentence was manifestly excessive, as Mr Kimmins of counsel (who appeared on the appeal with Mr Lange of counsel for the applicant) conceded that the applicant had to show error on the basis of one or other of the two grounds of appeal (set out above) before making any submissions that a different sentence should be imposed.

Background facts

  1. [4]
    Mr Kruezi was born in Australia in 1992 of Albanian descent.  He is of the Muslim Sunni faith.  He had a prior, but very minor criminal history.
  2. [5]
    Mr Kruezi committed the offences in the context of the Syrian civil war and armed conflict.  Mr Kruezi supported the overthrow of the Assad regime through armed hostilities and the establishment in its place of a state governed by Islamic law.  Mr Kruezi believed that he, and other Muslims, had a religious duty to fight against those who sought to oppress Muslims and that provided part of the motivation for Mr Kruezi’s offending.
  3. [6]
    Mr Kruezi obtained an Australian passport in December 2013 and booked a flight from Brisbane to Pristina in Kosovo, intending to travel from Australia to Pristina and on to Turkey and to enter into Syria with the intention of engaging in hostile activities in the Syrian conflict.  The Minister for Foreign Affairs and Trade cancelled Mr Kruezi’s Australian passport on security grounds on 6 March 2014.  Mr Kruezi was intercepted by Australian authorities at the Brisbane International Airport on 9 March 2014 and prevented from travelling.  The act which resulted in Mr Kruezi being charged with count 1 was that attendance at the Brisbane International Airport in preparation for him to enter Syria with intent that he engage in a hostile activity in Syria.  This constituted an act preparatory to the commission of an offence against s 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth).  The maximum penalty for count 1 is 10 years’ imprisonment.
  4. [7]
    Count 3 arose out of Mr Kruezi’s conduct between 28 August 2014 and 10 September 2014 during which he acquired a .22 calibre rifle in Sydney, transported it from Sydney to Logan, and obtained or attempted to obtain 10 litres of petrol in a plastic jerry can, corks and glass bottles which were the ingredients to make improvised explosive devices known as Molotov cocktails.  The offence against s 101.6(1) of the Criminal Code (Cth) was constituted by Mr Kruezi intentionally doing those acts in preparation for, or planning, a terrorist act.  Mr Kruezi was almost 22 years old when he committed the conduct that is the subject of count 3.  The maximum penalty for count 3 is life imprisonment.
  5. [8]
    As count 3 is a terrorism offence, a minimum non-parole period of at least three-quarters of the sentence of imprisonment had to be imposed, pursuant to s 19AG(2)(a) of the Act.  No statutory minimum non-parole period applied to count 1.
  6. [9]
    Apart from the period in pre-sentence custody for which the declaration was made, Mr Kruezi had been charged with further offences for which he was held on remand from 9 May 2017 to 30 July 2018, when he was also being held on remand for the subject offences.  The further period between 9 May 2017 and 30 July 2018 was therefore not declarable as pre-sentence custody for counts 1 and 3, but the prosecution and Mr Kruezi’s counsel who appeared on the sentencing hearing were agreed on the manner in which the sentencing judge should take into account the period of one year, two months and 22 days that was not declarable, so as to give Mr Kruezi full credit for that time in custody in fixing the sentences for counts 1 and 3.  Both parties rounded up the non-declarable period to 15 months and agreed that would result in a reduction of 20 months to the head sentence.

Sentencing remarks

  1. [10]
    The observations made by the sentencing judge in the sentencing remarks included the following.  Count 1 was not a terrorism offence, as it did not contain any element that the offence was committed in furtherance of terrorism.  Each of the offences was a manifestation of Mr Kruezi’s religious and ideological beliefs.  Although the conduct that resulted in count 1 involved only Mr Kruezi’s attendance at the airport to leave the country, the steps leading up to that act involved a series of acts carried out over time, as he planned and prepared for his travel overseas.  The objective seriousness of count 1 was high.  After Mr Kruezi had been prevented from travelling to Syria, he began planning to carry out a domestic terrorist attack in Australia.  Over a period of approximately two weeks, he did a series of acts with the intention of planning for, and ultimately carrying out, one or more terrorist acts alone.  He had not decided upon the particular target for his intended attack.  It may be that Mr Kruezi intended to kill innocent law enforcement officers rather than random members of the public in a public place, but that did not lessen the criminality of Mr Kruezi’s behaviour.  The offending was interrupted through police taking action at a stage where an attack, if it was not imminent, was at least planned to the point where Mr Kruezi had obtained weapons to carry out a brutal attack.  The extent of Mr Kruezi’s religious and ideological motivation was extreme, as evidenced by the various statements he made to his associates, the undercover operative and the police.  The level of his radicalisation was also evident from the nature of the literature and media found in his possession, when police searched his house, and from the web browsing history identified on his electronic devices.  The objective seriousness of count 3 was very high.
  2. [11]
    The prosecution submitted that s 16A(2)(c) applied and Mr Kruezi should be sentenced in respect of two offences committed as part of a continuing course of conduct over a period of approximately seven months.  During this period, Mr Kruezi engaged in a series of acts that were connected in purpose and intent and, although the offences are different in nature, they were motivated by the same religious and ideological mindset and world view.  (It is not apparent from the sentencing judge’s recitation of the prosecution’s submission on this aspect whether the sentencing judge did, in fact, accept the submission that the offences were committed as part of a continuing course of conduct over a period of approximately seven months.  It is apparent that the sentencing judge accepted that counts 1 and 3 were motivated by Mr Kruezi’s religious views which did not wane over that period.  The sentencing judge did not elsewhere in the sentencing remarks refer to the conduct being a continuous course of conduct over seven months, but confined the recitation of the facts of the offending to the particulars that related to each of the offences.)
  3. [12]
    An eight count indictment was originally presented against Mr Kruezi.  That indictment was listed for trial commencing on 23 July 2018.  A three count indictment was presented on 8 June 2018 and Mr Kruezi pleaded guilty on that date to counts 1 and 3.  The trial of the remaining count 2 was listed to commence on 30 July 2018, but on 15 June 2018 count 2 was discontinued.  The plea of guilty to counts 1 and 3 is a mitigating factor, even though the guilty plea was neither timely nor made at the first available opportunity.  The guilty pleas had objective utilitarian value, as they saved the time, expense and cost of a trial of about four weeks’ duration in which the prosecution would have called about a dozen witnesses.  Mr Kruezi accepted by his guilty pleas that he committed the offences, but there was no evidence of remorse or contrition.
  4. [13]
    There was some cooperation with law enforcement agencies in the investigation of Mr Kruezi’s offending that was taken into account under s 16A(2)(h) of the Act.  When Mr Kruezi was interviewed by police on 20 September 2014 he admitted that he bought the firearm before he left Sydney for $2,000, he was in the process of equipping himself, and that if he had more time, he would have been better equipped.  Specific deterrence must be given some significant weight, because Mr Kruezi valued his beliefs over the safety and lives of people who live and work in the community.  General deterrence was also an important sentencing consideration for offences of the nature of counts 1 and 3.  Mr Kruezi’s counsel submitted that Mr Kruezi felt terrible about the effect his offending has had on the broader society and that, if he had the opportunity to do 2014 over again, he would take it and not repeat his offending behaviour.  As these submissions were not supported by any evidence from Mr Kruezi or others, little weight could be given to them.
  5. [14]
    The “principle of totality” is relevant to the sentencing exercise.  The submission had been made by the prosecution in relation to the structuring of the sentences (to which Mr Kruezi’s counsel who appeared on the sentence agreed at the time the submission was made) that the sentence imposed on count 3 should reflect the totality of Mr Kruezi’s criminality and that a lesser concurrent sentence would then be imposed for count 1.  The submission was “predicated upon the global approach to which the principle of totality should be given effect”.  Pursuant to s 19AB(1) of the Act, if the court imposed a head sentence of imprisonment which in the aggregate exceeds three years, the court must set a single non-parole period, but the court would have to take into account the effect of s 19AG(2) which required a single non-parole period to be at least three-quarters of the “aggregate sentence”.  The sentencing judge then stated:

“In doing so, the Prosecution submits that the Court may consider that the conduct which is the subject of count 1 may justly and appropriately be reflected in a global sentence for count 3 by imposing a greater overall sentence for count 3 but ameliorating what may otherwise have been considered to be an appropriate global sentence to take into account the effect of the imposition of a single minimum non-parole period because of the application of section 19AG(2). That is because section 19AG(2) would not otherwise apply to count 1.

Accordingly, I hold that the sentence imposed on count 3 is increased because of taking into account count 1; but ameliorated to take account of the fact that the minimum non-parole period does not apply to count 1 and also to take account of your plea of guilty.”

  1. [15]
    The sentencing judge then proceeded to consider authorities for comparable offending against s 101.6 of the Code, including Director of Public Prosecutions (Cth) v Besim [2017] VSCA 158, Director of Public Prosecutions (Cth) v MHK (A Pseudonym) (No 1) (2017) 52 VR 272, R v Khalid [2017] NSWSC 1365 and R v Khaja (No 5) [2018] NSWSC 238.  The sentencing judge described the decision in Khalid, where three offenders had pleaded guilty to one offence of conspiracy to commit acts in preparation or planning for a terrorist attack, as “[a]nother useful decision as to guiding the sentence which should be imposed”.  The sentencing judge did note, however, that the fact that the case was a conspiracy by three people made it different from Mr Kruezi’s case.  Both parties submitted the most comparable sentence was that in Khaja where the offender was sentenced on a guilty plea to one offence against s 101.6 of the Code to 19 years’ imprisonment with a non-parole period of 14 years and three months.  The sentencing in Khaja took into account that the offender had also committed an offence against s 119.4 of the Code by engaging in conduct preparatory to entering a foreign country with intent to engage in hostile activities.
  2. [16]
    The sentencing judge concluded the sentencing with the following remarks.  The offender in Khaja was only 18 years old at the time of the offending, whereas Mr Kruezi was 21 years old and therefore still young, but well aware of what he was doing and the harm he intended to cause.  There was no evidence that Mr Kruezi’s views or motivation had changed.  He remained a serious risk to the public.  Mr Kruezi did acts preparatory to engaging in brutal and savage acts which would have caused death and destruction to their immediate victims and were designed to cause fear and intimidation to the whole community.  The sentence imposed on him must not only punish him, but, most importantly, protect the community and deter him and others who might be tempted to behave like him.  The sentence that would have been imposed on count 3, taking into account all the factors mentioned in the sentencing remarks would be 19 years’ imprisonment, but as a result of the deduction from the head sentence of the non-declarable time, that would be a sentence of 17 years and four months’ imprisonment.  The non-parole period was therefore 13 years.

Mr Kruezi’s submissions

  1. [17]
    It was acknowledged on behalf of Mr Kruezi that his counsel before the sentencing judge agreed to the course proposed by the prosecutor for uplifting the sentence for count 3 to take into account count 1 and then ameliorating the head sentence to account for the effect of s 19AG(2) of the Act.  For the purpose of the first ground of the appeal, it is now submitted on Mr Kruezi’s behalf that course revealed a misunderstanding of the effect of s 19AG(2), as the submission proposed a non-parole period of three-quarters of the overall sentence, even though the requirement under s 19AG(2) applied only to the imposition of a non-parole period for count 3.  It is submitted there was no statutory warrant, whatsoever, for the uplifting of the sentence for count 3 to take into account the offending under count 1, nor for taking into account by way of mitigation the fact that count 1 was not a minimum non-parole period offence.  As s 19AG did not require the fixing of the non-parole period at three-quarters of the aggregate sentence, the only limitation is that the aggregate non-parole period may not be less than three-quarters of the sentence for the minimum non-parole period offence.  It is therefore submitted that the sentencing judge erred in concluding otherwise and therefore took into account an irrelevant consideration.
  2. [18]
    In relation to the second ground of appeal, it is submitted on behalf of Mr Kruezi that the process that the sentencing judge undertook of increasing the sentence on count 3 to reflect the criminality of count 1, but then mitigating the overall sentence to some undefined degree to account for the perceived restriction imposed by s 19AG offended the process of instinctive synthesis approved in Markarian v The Queen (2005) 228 CLR 357 at [27].  There was a very real risk that the non-parole period imposed upon Mr Kruezi was longer than it might otherwise have been, given the erroneously perceived constraint that the non-parole period had to be at least three-quarters of the head sentence imposed for count 3.  As was pointed out by McMurdo JA (with whom Fraser JA and North J agreed) in R v Armstrong [2016] QCA 243 at [35] the approach of imposing a global sentence on one offence to take account of the overall criminality for all offences for which the offender was being sentenced “ought not to result in a longer period of imprisonment or a longer non-parole period than that which would result from the imposition of cumulative sentences”.  The sentencing judge was therefore in error in imposing a global sentence for count 3, as the application of s 19AG(2) of the Act to the uplift of the sentence on count 3 to take account of the additional criminality for count 1 carried with it the risk that Mr Kruezi was sentenced to a longer non-parole period that would otherwise result from imposing cumulative sentences.

The respondent’s submissions

  1. [19]
    It is apparent from a consideration of the sentencing remarks read as a whole that the sentencing judge’s reference to the requirement of a single non-parole period should be at least three-quarters of the “aggregate sentence” was a reference to the global sentence imposed for count 3 that reflected the totality of Mr Kruezi’s criminality.  The sentencing judge’s approach to imposing a global sentence for count 3, reflecting the totality of Mr Kruezi’s criminality was an orthodox approach to sentencing and any disadvantage by applying s 19AG(2) to the fixing of the non-parole period for the head sentence imposed for count 3 was taken into account in determining that head sentence.
  2. [20]
    By identifying qualitatively, and not quantitatively, the considerations being taken into account to arrive at the ultimate sentence, the sentencing judge did not depart from a process of instinctive synthesis and impermissibly stray into a two-stage approach to the sentencing exercise of the kind that was disapproved in Markarian.

Nagy approach

  1. [21]
    The sentencing judge relied on the approach described in R v Nagy [2004] 1 Qd R 63 of reflecting Mr Kruezi’s overall criminality in the sentence imposed for count 3 and in imposing a concurrent sentence for count 1.  The offender in Nagy pleaded guilty to one count of unlawful use of a motor vehicle committed on 3 January 1999, one count of break and enter premises and steal committed on 19 March 2001, one count of assault occasioning bodily harm in company committed on 25 December 2001 and two counts of assault occasioning bodily harm whilst armed and in company committed on 11 February 2002.  The offender was sentenced on 10 January 2003 to five years’ imprisonment on each of the assault counts and four months’ imprisonment on each of the other accounts, all the sentences were to be served concurrently and there was a recommendation for post-prison community-based release after serving two years.
  2. [22]
    In Nagy, Williams JA referred to a number of authoritative statements in other cases about the process of sentencing for multiple offences.  Griffiths v The Queen (1989) 167 CLR 372, 377, 378, 393 and 394 was relied on by Williams JA at [30] – [33] as supportive of different approaches to sentencing for a series of offences, including sentences for the several offences to be served concurrently, or as cumulative sentences, or as sentences which are in part cumulative and in part concurrent. Williams JA then stated at [39]:

“Where a judge is faced with the task of imposing sentences for a number of distinct, unrelated offences there are a number of options open. One of those options is to fix a sentence for the most serious (or the last in point of time) offence which is higher than that which would have been fixed had it stood alone, the higher sentence taking into account the overall criminality. But that approach should not be adopted where it would effectively mean that the offender was being doubly punished for the one act, or where there would be collateral consequences such as being required to serve a longer period in custody before being eligible for parole, or where the imposition of such a sentence would give rise to an artificial claim of disparity between co-offenders. That list is not necessarily exhaustive. Such considerations may mean that the other option of utilising cumulative sentences should be adopted.”

  1. [23]
    Williams JA considered that the sentence of five years’ imprisonment for each of the assaults could not be supported by the authorities.  In lieu, the offender was sentenced to two years’ imprisonment for the first assault and three years’ imprisonment for each of the other assaults with the sentences of three years being concurrent with each other, but cumulative on the sentence for the first assault.  The recommendation for post-prison community-based release was made after serving 18 months’ imprisonment.  The other members of the court (Jerrard JA and Muir J) agreed with the observations made by Williams JA at [39].  Even though the result of the appeal in Nagy was the imposition of cumulative sentences, rather than the imposition of a sentence for one of the offences that reflected the overall criminality for all the offending with concurrent sentences imposed for the other offences, it is common to refer to the Nagy approach as the process involving the latter course where an offender is sentenced for multiple offences.  The actual outcome in Nagy rejected the sentence that had been selected at first instance for each of the assaults.  It was so inflated in attempting to address the overall criminality of the offender’s conduct, it resulted in a sentence that was out of all proportion to the offending reflected by each of the particular assaults.
  2. [24]
    The application of the Nagy approach was considered in R v Bowditch [2014] QCA 157.  In relation to the choice facing a sentencing judge who is sentencing for more than one offence, McMurdo P observed at [2]:

“Generally, judges adopt one of two approaches.  They may impose an increased head sentence, usually on the most serious offence, to reflect the totality of all the offending so as to avoid the possible unintended complications and consequences which sometimes flow from the combination of cumulative sentences and complex sentencing and related statutes.  On the other hand, judges may impose a cumulative sentence or a series of cumulative sentences, moderated to reflect the totality principle discussed in Mill v The Queen.  Either method is apposite provided the judges make clear the method adopted and the reasons for it; that the overall effect of the sentence is not manifestly excessive; and that the sentences do not result in double punishment for the same acts.  Judges often tend to adopt the former approach as its effect tends to be more easily comprehended and it is less prone to unintentionally offend the totality principle.  I see no reason to dissuade judges from this course.” (footnotes omitted)

  1. [25]
    As pointed out by McMurdo JA in Armstrong at [34], the above passage explains that the Nagy approach “may be adopted for reasons of convenience and simplicity” and it is an approach which may “be adopted only as a more practical alternative to the imposition of cumulative sentences”.  The Nagy approach therefore gives a choice to the sentencing judge on alternative approaches for sentencing for multiple offences as a means for achieving appropriate sentences for the offences and ensuring that both the effective head sentence and the actual period required to be served in custody are appropriate for all the circumstances relevant to the offending and the offender.
  2. [26]
    The sentencing judge in this matter had referred to the “principle of totality” as being “relevant to the sentencing exercise” in the sense that both parties submitted that “the sentences should be structured so that the sentence to be imposed on count 3 properly reflects the totality of [Mr Kruezi’s] conduct and represents an overall sentence that is just and appropriate to the totality of [Mr Kruezi’s] offending behaviour”, but that was, in fact, a reference to the application of the Nagy approach for imposing a sentence for count 3 that reflected the overall criminal offending that was before the sentencing judge.
  3. [27]
    The expression “totality principle” is often used loosely in endeavouring to explain the considerations that should apply to imposing appropriate sentences in a variety of circumstances, including where the offender is sentenced for more than one offence to cumulative terms of imprisonment, or there are successive custodial periods, or where the offender is sentenced whilst currently serving a sentence.  McMurdo J (as his Honour then was and with whom Holmes and Gotterson JJA agreed) helpfully explained in R v Beattie; ex parte Attorney-General (Qld) (2014) A Crim R 177 at [18] – [19] that the  High Court approved the description of the totality principle in Mill v The Queen (1988) 166 CLR 59, 63 to review consecutive sentences to consider whether the aggregate is “just and appropriate”, but that was then extended in Mill where the offender committed a number of offences within a short space of time in more than one State and came to be sentenced to a term of imprisonment in one State, after he had completed the first sentence in another State, and also extended to cover the sentencing of an offender who was then serving an existing sentence.  The authority that is usually cited for the latter circumstance is the statement by Hunt CJ at CL in R v Gordon (1994) 71 A Crim R 459, 466:

“When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.”

  1. [28]
    The Nagy approach is part of the common law that is commonly applied to sentencing for State offences in Queensland.  Section 16A(1) of the Act is the overarching sentencing principle that applies to sentencing for federal offences:

“In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.”

  1. [29]
    The relevance of general sentencing principles to sentencing for federal offences was explained in Hili v The Queen (2010) 242 CLR 520 at [25]:

“As noted in Johnson v The Queen, s 16A of the Crimes Act, on its proper construction, accommodates the application of common law principles of sentencing, such as the principle of ‘totality’ discussed in Mill v The Queen. Section 16A accommodates the application of that and some other judicially developed general sentencing principles because those principles give relevant content to the statutory expression ‘of a severity appropriate in all the circumstances of the offence’ used in s 16A(1), as well as some of the expressions used in s 16A(2), such as ‘the need to ensure that the person is adequately punished for the offence’.” (footnotes omitted)

  1. [30]
    The approach endorsed in Nagy of selecting a higher sentence for the most serious offence to take into account the overall criminality for all offending for which the offender is then being sentenced can apply to sentencing for Commonwealth offences, but only if it results in a sentence for each offence “that is of a severity appropriate in all the circumstances of the offence” in compliance with s 16A(1) of the Act, including the totality principle in its various aspects.  Where the sentencing involves more than one federal offence, s 16A(1) applies to the sentence for each offence, but in the context of the sentences imposed for all offences in the same sentencing.

Did the sentencing judge err in applying s 19AG(2) to the “global” sentence for count 3?

  1. [31]
    When a higher sentence has been imposed for the most serious offence in applying the Nagy approach in sentencing for multiple offences, the higher sentence is often referred to as a “global” sentence.  Despite that description, the higher sentence that is selected for the most serious offence to take into account the overall criminality for all the offending for which the concurrent sentences are being imposed is the actual sentence which is imposed for the most serious offence.  In other words, the “global” sentence for count 3 that was imposed by the sentencing judge was the sentence for count 3.
  2. [32]
    The application of the minimum non-parole period of three-quarters to the sentence for count 3 was the means by which her Honour proposed to satisfy s 19AG(2).  There was therefore no error in the interpretation of s 19AG(2) as asserted in the first ground of appeal.

Did the sentencing judge err in applying the Nagy approach?

  1. [33]
    The second ground of appeal is directed at the sentencing judge’s exercise of discretion with the intention to simplify the sentencing by applying the Nagy approach which resulted in concurrent sentences and not cumulative sentences.  The sentencing judge referred to the fact that the sentence imposed on count 3 was “increased”, because of taking into account count 1, but that was a shorthand way of summarising the Nagy approach of selecting a higher sentence for the most serious offence to reflect the overall criminality.  The fact that a minimum non-parole period applied to count 3 and not to count 1 was a circumstance that may have persuaded many judges to avoid the Nagy approach.  It was a circumstance that fell within those suggested in Nagy at [39] for which there was the potential for a collateral consequence that would be avoided with a cumulative sentence.  The sentencing judge was acutely aware of the potential collateral consequence and expressly recorded that her fixing of the head sentence (before the deduction for the non-declarable pre-sentence custody) had taken that collateral consequence into account in the manner in which her Honour described.
  2. [34]
    The submissions made on behalf of Mr Kruezi focused on this explanation given by the sentencing judge in how her Honour arrived at the ultimate sentence for count 3.  That explanation was the manner in which the sentencing judge conveyed that her Honour had factored into the sentencing the potential collateral consequence of s 19AG(2) of the Act.  That did not undermine the process of instinctive synthesis in the exercise of the sentencing discretion (as explained in Markarian at [37]) that was otherwise apparent in the manner in which the sentencing task was undertaken by the sentencing judge.
  3. [35]
    Mr Kruezi was sentenced for two offences.  They were both serious, but count 3 was significantly more serious offending than count 1.  Sentencing for those two offences did not have the complications of sentencing for multiple offences that often makes the Nagy approach an attractive alternative.  Once it is accepted, however, that s 16A(1) did not necessarily preclude the application of the Nagy approach, the real issue raised by Mr Kruezi’s second ground of appeal is whether the sentence for count 3 complied with s 16A(1) of the Act, as a result of applying the Nagy approach, and was of a severity appropriate in all the circumstances for the offence.  In light of the concession made on behalf of Mr Kruezi at the hearing of the application that accepted that this court could not review the sentence, unless an error of principle was shown in the sentencing process, there was implied acceptance that the sentence was not manifestly excessive.
  4. [36]
    It is therefore strictly not necessary to consider the comparable authorities relied on by the sentencing judge, but for the fact that the decision of Khalid, on which the sentencing judge relied for some assistance has been the subject of successful appeals for the sentences imposed on two of the offenders, a child IM and Mr Khalid respectively: IM v R (2019) 100 NSWLR 110 and Khalid v R [2020] NSWCCA 73.
  5. [37]
    The sentencing judge analysed Besim which was a successful prosecution appeal against the sentence imposed on Mr Besim for one charge of having done acts in preparation for, or planning, a terrorist act contrary to s 101.6 of the Code.  Mr Besim was resentenced to 14 years’ imprisonment with a non-parole period of 10 years and six months.  Mr Besim pleaded guilty.  His offending occurred between 17 March and 15 April 2015, when he was 18 years old.  He was a nominal Muslim who for nearly two years prior to the offending attended political and religious lectures that resulted in his becoming increasingly radicalised.  The death of a friend who had attacked two police officers and was himself then shot and killed was the catalyst for Mr Besim’s decision to embark upon a plan to drive his car into a police officer during the course of Anzac Day 2015 commemorations, proceed to behead him and then seize the officer’s gun and kill as many others as he could in the immediate vicinity until he himself was either killed or seriously injured.
  6. [38]
    On 17 March 2015 Mr Besim initiated contact with a person whom he believed was an influential religious figure, set out in detail his plan and his correspondent supported him.  Mr Besim accessed websites concerning Anzac Day in preparation for the terrorist attack.  Mr Besim prepared a manifesto about his proposed actions.  When arrested on 18 April 2015, he was in possession of a Rambo knife with a blade of about 40 centimetres and a locking tactical knife.
  7. [39]
    The court in Besim (at [112]) emphasised that for the offence against s 101.6, the principles of general deterrence and protection of the community must be given substantial, if not primary, weight.  It was observed (at [113]) that it “was not a case in which the sentencing judge could properly have regarded rehabilitation as some form of assurance of community protection, since there was no basis for any finding that [Mr Besim] had changed his views”.  It was further noted (at [114]) that mitigating factors of a personal nature had to be given substantially less weight for this type of offence than in other forms of offending.  The court accepted (at [115]) that Mr Besim’s age at the time of the offending was relevant to the assessment of his moral culpability “because it is recognised that young people of that age are immature, and impressionable”, but noted (at [116]) that rehabilitation that is usually regarded as important for a youthful offender is outweighed by the factors of general deterrence, denunciation and retribution where “[t]he greater the objective gravity of an offence”.  The aggravating factors were described (at [118]) as “the fact that a police officer was targeted for beheading, that the killing was to take place publicly, and on Anzac Day, and [Mr Besim’s] willingness to kill other innocent civilians if at all possible”.  The court recorded that, in accordance with the usual practice under the State sentencing legislation that was applicable to Commonwealth offences, the court indicated (at [122]) that had it not been for Mr Besim’s plea of guilty, the court would have imposed a sentence of 19 years with a non-parole period of 14 years and three months.
  8. [40]
    Khalid involved the sentencing of three offenders, Mr Khalid, Mr Almaouie and IM who pleaded guilty to an offence contrary to s 11.5 and s 101.6(1) of the Code that between 7 November and 18 December 2014 they did conspire with each other and three other named persons and diverse others to do acts in preparation for a terrorist act or acts (for which the maximum penalty is the same for an offence against s 101.6(1)).  The terrorist act was to involve firearms and to be a religiously inspired act of terrorism.  The nature of the act or acts and proposed target or targets were unresolved, but included the killing of a member or members of either the New South Wales Police Force or Australian Federal Police Force and/or attacks on government buildings.  The conspiracy involved considering the various possible forms of terrorist acts and targets, sourcing, obtaining and retaining firearms and ammunition, numerous telephone communications about the proposed attack and meeting on 17 and 18 December 2014 for the purpose of considering documents the conspirators had made in preparation for a terrorist act.
  9. [41]
    As IM was only 14 years and two months old at the time of the offence, the sentence imposed on him was never as relevant to Mr Kruezi’s sentencing as those imposed on Mr Khalid and Mr Almaouie.  The significance of IM’s appeal, however, was that Bellew J at first instance had not had regard to the utilitarian value of IM’s guilty plea pursuant to s 16A(2)(g) of the Act which was the prevailing view in New South Wales at that time, until the decision in Xiao v The Queen (2018) 96 NSWLR 1 given on 5 February 2018.  IM was therefore successful on the appeal on the basis of the ground that there was no regard given to the utilitarian value of his plea of guilty and he was resentenced.
  10. [42]
    Mr Khalid had turned 20 years old four days into the conspiracy period and played a senior role in the conspiracy.  Khalid pleaded guilty on the day fixed for his trial and Bellew J was satisfied that the plea was some evidence of contrition and acceptance of responsibility.  A discount for a guilty plea of 10 per cent was therefore allowed, but no allowance was made for the utilitarian value of the appeal.  Mr Khalid was sentenced to imprisonment for a period of 22 years and six months with a non-parole period of 16 years and nine months.  In Khalid v R, Bathurst CJ (with whom Bell P and Harrison J agreed) granted (at [89]) a utilitarian discount of 10 per cent from the sentence Bathurst CJ would otherwise have imposed on the resentencing which was in addition (at [88]) to taking into account as part of the process of instinctive synthesis as a subjective factor the evidence of contrition and acceptance of responsibility otherwise inferred by from the guilty plea.  Bathurst CJ summarised (at [80]) principles that have emerged in the area of sentencing the terrorist offences, emphasising that rehabilitation is likely to play a minor part (if any), the main focus must be on the offender’s conduct and intention at the time the offence was committed and considerations relating to the youth of the offender need to be appropriately moderated where the offending is serious and dangerous.  Mr Khalid was resentenced to 20 years’ imprisonment with a non-parole period of 15 years.
  11. [43]
    Mr Almaouie’s sentencing was complicated in that he was also to be sentenced for four firearm offences and four further firearm offences were to be taken into account on the sentencing, he had been taken into custody in respect of the firearm offences on 23 December 2014, but was not charged with the conspiracy offence until almost 12 months later.  It meant that he had to be sentenced first for the firearm offences and then the sentence for the conspiracy had to be imposed, but Bellew J made allowance for the sentences imposed for the firearm offences in fixing the sentence for the conspiracy.  The firearm offences had been committed by Mr Almaouie as part of the conspiracy.  Even though Mr Almaouie’s involvement in the conspiracy did not commence until sometime after 7 December 2014, Bellew J found at [161] that Mr Almaouie’s offending was of considerable objective seriousness, falling towards the upper end of the scale, but slightly lower than that of Mr Khalid.  Mr Almaouie’s plea of guilty to the conspiracy offence was not entered until the day fixed for his trial.  He was given a discount for each of his pleas of 10 per cent.  He was 21 years old at the time of the offending.  For the firearm offences, Mr Almaouie was sentenced to an effective sentence of 12 months’ imprisonment that overlapped by seven days with the sentence for the conspiracy offence of 18 years and 10 months with a non-parole period of 14 years and two months.
  12. [44]
    The offender in Khaja had attempted to depart from Sydney on 27 February 2016 with the intention of travelling to Syria to join ISIS, but was intercepted by law enforcement authorities at the Sydney airport.  In April 2016 he used an application on his mobile phone to view a post containing instructions for making a bomb from readily available components.  In May 2016, Mr Khaja went to an army barracks and court buildings for the purpose of assessing those facilities as targets.  He attempted to procure weapons from undercover operatives whom he thought were sympathisers.  He made a statement to one of them to the effect that he intended to kill as many non-Muslims as he could before being killed himself.  He was arrested shortly after that conversation.  His plea of guilty was entered at the last possible moment before a jury was to be empanelled.  Fagan J allowed a reduction of 12 months to reflect that late guilty plea.  Fagan J considered (at [131]) that the criminality of the terrorism offence comprehended the admitted foreign incursion offence and the latter offence did not warrant an increase in the sentence for the terrorism offence above what would have been imposed, if s 16BA of the Code had not been engaged.
  13. [45]
    Sentencing for an offence against s 101.6(1) of the Code involves considerations that are unique to that type of offending.  This has been explained in a number of authorities and it is sufficient to set out what was said by the court in MHK at [48]:

“In considering [the sentencing principles relevant to the offending to which the respondent pleaded guilty], it is important to bear in mind that the statutory offence created by s 101.6 of the Criminal Code was designed to ensure that persons, who plan to commit dangerous acts of terror in our community, be intercepted early, well before they are able to perpetrate such acts and thereby cause the appalling casualties that invariably result from acts of terror. It is for that reason that an assessment of the criminal culpability of a person, convicted of such an offence, is not measured purely by the steps and actions taken by the offender towards the commission of the act of terror, but, in addition, by a proper understanding and appreciation of the nature and extent of the terrorist act that was in contemplation, and to which those steps were directed.” (footnote omitted)

  1. [46]
    Mr Kruezi’s offending was similar to that committed by Mr Besim.  Even though the court in Besim reduced the mitigating effect of Mr Besim’s youthful age of 18 years, it was still a relevant sentencing consideration and explains, at least to some extent, the longer operative sentence of 19 years’ imprisonment that was selected by the sentencing judge for Mr Kruezi’s terrorism offence (before the reduction for the non-declarable pre-sentence custody).
  2. [47]
    The offence of conspiracy to commit an offence under s 101.6 of the Code is objectively more serious than the commission of an offence under s 101.6 by a single offender for the reasons explained by Whealy J in R v Elomar (2010) 264 ALR 759 at [64] that were adopted by the court in Abbas v The Queen [2020] VSCA 80 at [60].  That explains the length of the sentence that was ultimately imposed on Mr Khalid as a senior member of the conspiracy in Khalid v R.  Taking into account the additional year for Mr Almaouie’s firearm offences, his sentence in Khalid was also slightly longer than Mr Kruezi’s operative sentence.
  3. [48]
    In Khaja, Mr Khaja’s younger age and the fact that he had not yet obtained any weapons distinguished his offending from that of Mr Kruezi, but that then had to be balanced against the fact that, unlike Mr Kruezi who had not selected a target, Mr Khaja had visited two possible venues for his proposed attack.  It is apparent from the sentencing judge’s selection of 19 years’ imprisonment as the operative sentence for Mr Kruezi that her Honour did justifiably treat the sentence in Khaja as an appropriate yardstick.
  4. [49]
    Particularly when the operative sentence of 19 years’ imprisonment for Mr Kruezi took into account the additional criminality attributable to count 1 (but mitigated for the effect of s 19AG(2)), the selection of 19 years’ imprisonment remains the sentence of appropriate severity for sentencing Mr Kruezi on count 3 in all the circumstances, despite the successful appeals in IM v R and Khalid v R.

Order

  1. [50]
    It follows that the order should be:

Application for leave to appeal refused.

  1. [51]
    WILLIAMS J:  The applicant seeks leave to appeal against the sentence imposed in the Supreme Court at Brisbane on 31 July 2018.  The applicant was sentenced to 17 years and four months imprisonment with a non-parole period of 13 years in respect of one count of acts in preparation for or planning a terrorist act under s 101.6(1) of the Criminal Code (Cth).[1]  The applicant was further sentenced to three years and six months imprisonment in respect of one count of preparations for incursions into a foreign State under s 7(1)(a) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), to be served concurrently.
  2. [52]
    The applicant’s original application for leave to appeal was on the ground that the sentence was manifestly excessive.[2]  At the hearing of the application on 30 March 2020, the applicant sought leave to amend the notice of appeal so that it reads:

“i) Her Honour erred in finding that the single non-parole period to be fixed in accordance with s. 19AB(1) Crimes Act 1914 (C’th) for both offences was, pursuant to s. 19AG(2) Crimes Act 1914 (C’th), required to be no less than ¾ of the aggregate head sentence for both offences, notwithstanding the fact that s. 19AG(2) did not apply to count 1; and

ii) Her Honour erred in increasing the sentence for count 3 to reflect the criminality of count 1 and then mitigating that sentence to take into account the perceived effects of s. 19AG Crimes Act 1914 (Cth).”

  1. [53]
    The respondent did not oppose leave being granted and leave was granted at the hearing to amend the grounds as proposed.[3]
  2. [54]
    At the hearing of the application for leave to appeal there was some ambiguity as to whether the ground of manifest excess was being pursued in conjunction with the amended grounds.  This was clarified in oral submissions – it was not.  The issue of the appropriate sentence only arises if the Court is persuaded in respect of either of the specific errors identified in the amended grounds.[4]
  3. [55]
    The grounds of appeal raise two specific errors.  However, in submissions the applicant largely dealt with both grounds together.  The applicant challenges the structure of the head sentence, particularly the effect of the mandatory non-parole period under s 19AG(2) Crimes Act 1914 (Cth) (Crimes Act), in a number of respects, including that:
    1. (a)
      the approach of “aggravating and then mitigating the sentence in respect of count 3 in order to take into account the criminality of count 1” was erroneous.[5]
    2. (b)
      the sentencing judge “mitigated the overall sentence to some undefined degree to account for the perceived restriction imposed by s. 19AG.”[6]
    3. (c)
      there was a “very real risk that the non-parole [period] imposed upon the applicant was longer that it might otherwise have been, given the erroneously perceived constraint that the non-parole period had to be at least 75% of the aggregate head sentence.”[7]
  4. [56]
    The applicant’s ultimate position is that what is described as the approach in R v Nagy[8] should not have been adopted and cumulative sentences ought to have been imposed in the circumstance where there is a mandatory non-parole period for one of the two offences.[9]

Background facts

  1. [57]
    The relevant facts are set out in a document entitled “Prosecution Summary of Facts” which is a 23 page document that was read into the record at the sentence hearing.[10]  For the purposes of the appeal, the facts are not in dispute and can be summarised briefly here.
  2. [58]
    The applicant is an Australian born citizen of Albanian descent and was born in 1992.  The applicant is of the Muslim Sunni faith.  The applicant committed the offences in the context of the ongoing Syrian civil war and armed conflict.  The applicant supported the overthrow of the Assad regime and the establishment in its place of a state governed by Islamic law.  As evidenced in various statements by the applicant, he believed that he had a religious duty to fight against those who sought to oppress Muslims.  This is relevant as it provides the motivation and context of the applicant’s offending.
  3. [59]
    The Prosecution Summary of Facts provides the following brief summary in relation to counts 1 and 3:

Count 1

  1. Count 1 relates to the Defendant attending at Brisbane International Airport on 9 March 2014, having obtained an Australian passport in December 2013, and an airfare from Brisbane to Pristina, Kosovo in March 2014, in order to board that flight, intending to travel from Australia to Pristina and on to Turkey and enter the Republic of Syria with the intention of engaging in hostile activities in the Syrian conflict.

Count 3

  1. Count 3 relates to the Defendant’s conduct between 28 August 2014 and 10 September 2014 during which the Defendant acquired a .22 calibre rifle in Sydney and transported it from Sydney to Logan, and obtained or attempted to obtain 10 litres of petrol in a plastic jerry can, corks and glass bottles, the ingredients to make improvised explosive devices known as Molotov cocktails, those acts being done in preparation for, or planning, a terrorist attack by the Defendant.”

Sentence hearing

  1. [60]
    On 8 June 2018, the applicant was arraigned and entered guilty pleas in respect of the two counts.  The sentence hearing occurred on 30 July 2018 and the learned sentencing judge delivered sentencing remarks and imposed a sentence on 31 July 2018.
  2. [61]
    Her Honour’s sentencing remarks are lengthy and are contained in 42 pages of transcript.  Her Honour sets out in extensive detail the facts leading up to the two offences and the circumstances giving rise to the offences.  A number of keys background points that have been conveniently summarised in the respondent’s outline of submissions in the Court of Appeal:

“17. When sentencing the Applicant, the learned sentencing judge noted the following matters in respect of the Applicant and his offending:

  1. (1)
    Count 1 involved a degree of planning or organisation. The steps leading up to the Applicant’s arrest at the airport involved a series of acts carried out over time as the Applicant planned and prepared for his travel overseas;[11]
  1. (2)
    The objective seriousness of the Count 1 offence was high[;][12]
  1. (3)
    With respect to Count 3, the Applicant’s planning and preparations were ‘well underway’ and it was necessary for an arrest to be made to prevent an attack;[13]
  1. (4)
    The offending was only averted due to the intervention of authorities.[14] The Applicant had been ‘determined and committed’ to carry out an attack;[15]
  1. (5)
    It was not clear whether the Applicant intended to kill law enforcement officers or members of the public – but that did not lessen his criminality;[16]
  1. (6)
    The Applicant was motivated to commit each of the offences in commitment of what he perceived to be his religious obligation or duty.[17] The extent of his religious and ideological motivation was extreme;[18]
  1. (7)
    He exhibited no signs of contrition or remorse;[19]
  1. (8)
    He had pleaded guilty, albeit not at the earliest possible time;[20] and
  1. (9)
    He provided limited cooperation to law enforcement agencies in their investigation of the offending.[21]
  1. (10)
    He was 21 years old at the time of the offending;[22]
  1. (11)
    He had a very minor criminal history;[23] and
  1. (12)
    His prospects of rehabilitation were regarded as having no ‘meaningful effect on the sentence to be imposed’.[24]
  1. [62]
    Relevantly, her Honour’s sentencing remarks consider sentencing options and principles as follows:

“Pursuant to section 17A of the Crimes Act, a sentencing Court must not impose a sentence of imprisonment unless satisfied that no other sentence is appropriate in all the circumstances of the case.  It is accepted that in all the circumstances, this is obviously a case where a sentence of imprisonment is the only appropriate sentence and that threshold requirement is satisfied.  Section 19 of the Crimes Act specifies that in the imposition of multiple sentences no sentence must commence later than the end of a sentence already fixed so as to avoid any hiatus in accumulated sentences.

Pursuant to section 19AB(1), if the Court imposes a head sentence of imprisonment in the aggregate of more than three years the Court must set a non-parole period in respect of the minimum period that the Court determines is appropriate to be served by you before being eligible for release on parole, except with regard to a sentence for count 3.

Count 3 concerns an offence against section 101.6(1) of the Criminal Code and is therefore a terrorism offence and as such is a minimum non-parole period offence for the purposes of section 19AG of the Criminal Code.  Consequently, pursuant to section 19AG(2)(a) the Court must fix a single non-parole period of at least three-quarters of the sentence of imprisonment to be imposed for count 3.

The prosecution submits that a lower discounted head sentence should not be imposed for the purposes of setting the effect of section 19AG relying on R v Lodhi [2006] NSWSC 691 at [107] where Justice Whealy said that he did not accept the submission made on the offender’s behalf that because of the operation of section 19AG it was in some way necessary to fix a lower head sentence than otherwise might be appropriate.  However, in that case, I note that the defendant in Lodhi was convicted after being found guilty by a jury.  Therefore, there was no occasion to lower the head sentence.  It was not, as in this case here, a guilty plea.  Whilst there is no issue that section 19AG applies to the sentence to be imposed for count 3, the Prosecution submits that there nevertheless remains an issue concerning the effect of the principle of totality when imposing sentences for both counts 1 and 3.

The Prosecution submitted and the Defence agreed that the principle of totality is relevant to this sentencing exercise and the sentence should be structured so that the sentence to be imposed on count 3, the more serious offence, properly reflects the totality of your criminality.  That submission is predicated upon the global approach to which the principle of totality should be given effect.  The result would be, on the Prosecution’s submission, an imposition of a greater sentence of imprisonment for count 3 than that which would have been imposed had count 3 stood alone; and the imposition of a lesser concurrent sentence of imprisonment for count 1.

It must be observed, however, that pursuant to section 19AB(1) if the Court imposes a head sentence of imprisonment which in the aggregate exceeds three years, the Court must, as I said, set a single non-parole period because of the effect of section 19AG(2) which requires a single non-parole period to be at least three-quarters of the aggregate sentence.  The Court should take that fact into account when a global sentence comprehending the totality of your criminality is imposed for count 3.

In doing so, the Prosecution submits that the Court may consider that the conduct which is the subject of count 1 may justly and appropriately be reflected in a global sentence for count 3 by imposing a greater overall sentence for count 3 but ameliorating what may otherwise have been considered to be an appropriate global sentence to take into account the effect of the imposition of a single minimum non-parole period because of the application of section 19AG(2).  That is because section 19AG(2) would not otherwise apply to count 1.

Accordingly, I hold that the sentence imposed on count 3 is increased because of taking into account count 1; but ameliorated to take account of the fact that the minimum non-parole period does not apply to count 1 and also to take account of your plea of guilty.

In conclusion, the Prosecution submits that, given the objective seriousness of the offences in this case and the importance of general deterrence, the requirements of section 17A of the Crimes Act are satisfied and that sentences of imprisonment involving a significant period of full-time custody are the only appropriate sentences.”[25]

  1. [63]
    Her Honour then considered a number of comparable cases and the circumstances of the applicant and imposed a sentence as follows:

“The sentence to be imposed on you on count 3, taking into account all the factors I have mentioned, would be 19 years’ imprisonment.  I propose therefore, in accordance with the submissions made, to take account of the time you have spent in pre-sentence custody of 14 months and 22 days that cannot be declared off the head sentence to be imposed.  That will lead, in accordance with the submissions made to me, to a sentence of 17 years and four months’ imprisonment.  You spent 972 days from 10 September 2014 until 8 May 2017 in custody as time that can be declared as time spent in custody under this sentence.  I record convictions for both counts 1 and 3.

So the sentence imposed is this.  On count 3, I sentence you to 17 years and four months’ imprisonment.  Your non-parole period is 13 years.  On count 1, I sentence you to a concurrent period of imprisonment of three years and six months.  The sentence of imprisonment is to commence today.  I declare that you have spent 972 days in pre-sentence custody from 10 September 2014 until 8 May 2017 as time spent in custody under this sentence.  On each of the summary counts, I record convictions and impose no further punishment.”[26]

Submissions as to the appropriate structure of the sentence

  1. [64]
    At the sentencing hearing the respondent provided submissions addressing the specific application of s 19AG of the Crimes Act in a document entitled “Prosecution’s Supplementary Sentence Submissions - Application of s 19AG of the Crimes Act 1914” dated 26 July 2018.
  2. [65]
    As a result of the considerable period of non-declarable time, further submissions were prepared considering the impact of this non-declarable time on the operation of s 19AG of the Crimes Act.  The supplementary note prepared by the Crown included the following submissions:

“4. This period of 448 days cannot be declared, but it is accepted based on the case law that the non-declarable time should be taken into account. Due to minimum non-parole regime that exists, there is an element of complexity in doing so.

  1. Due to s 19AG of the Crimes Act 1914 (Cth) any sentence for count 3 must have a non-parole period of at least 75% of the sentence imposed. Any sentence imposed will have two components - the first being the minimum period to be served in custody and the second part being the period that may be served in custody or may be served on parole in the community. Each of those parts of the sentence is an important aspect of the total sentence imposed upon an offender.
  1. To assist the Court the table below sets out the break-down of the relative non-parole components and parole components of given [head sentences.]

Head sentence

75% of head sentence

25% of head sentence

21 years

15 years and 9 months

5 years and 3 months

20 years and six months

15 years and 4.5 months

5 years and 1.5 months

20 years

15 years

5 years

19 years and six months

14 years and 7.5 months

4 years and 10.5 months

19 years

14 years and 3 months

4 years and 9 months

18 years and six months

14 years and 1.5 months

4 years and 7.5 months

18 years

13 years and 6 months

4 years and 6 months

17 years and six months

13 years and 1.5 months

4 years and 4.5 months

17 years

12 years and 9 months

4 years and 3 months

  1. If it is assumed that a defendant will receive his parole date after 75% of any given nominally appropriate head sentence, then this parole date can be achieved by reducing the nominally appropriate head sentence through a relatively simple mathematical exercise.”[27]
  1. [66]
    A table was also provided to her Honour entitled “R v Kruezi ‒ Table of calculations relevant to non-parole periods agreed by the defendant and the prosecution” which set out various sentencing scenarios under specific headings.[28]
  2. [67]
    In respect of the actual sentence that was imposed, being 17 years and four months imprisonment with a non-parole period of 13 years, the relevant calculations from the table are as follows:
    1. (a)
      Nominal head sentence ‒ 19 years;
    2. (b)
      75% of nominal head sentence ‒ 14 years and three months;
    3. (c)
      Order to be made (nominal sentence less 20 months) ‒ 17 years and four months;
    4. (d)
      Minimum non-parole period of order to be made (75% of C) ‒ 13 years;
    5. (e)
      Effective (approximated) head sentence ‒ 18 years and seven months; and
    6. (f)
      Effective (approximated) non-parole period ‒ 14 years and three months.
  3. [68]
    At the sentence hearing on 30 July 2018, further oral submissions were also made in respect of this issue and the structure of the sentence.  Further oral submissions were also made on behalf of the respondent at the sentencing hearing in relation to how the guilty plea was to be factored into the structure of the sentence, particularly given the requirements of s 19AG of the Crimes Act.

Relevant statutory provisions

  1. [69]
    Count 1 relates to s 7(1)(A) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (the relevant legislation at the time of the offending[29]) which provides as follows:

7 Preparations for incursions into foreign States for purpose of engaging in hostile activities

  1. (1)
    A person shall not, whether within or outside Australia:
  1. (a)
    do any act preparatory to the commission of an offence against section 6, whether by that person or by another person;

…”

  1. [70]
    Section 6 provides as follows:

6 Incursions into foreign States with intention of engaging in hostile activities

  1. (1)
    A person shall not:
  1. (a)
    enter a foreign State with intent to engage in a hostile activity in that foreign State; or
  1. (b)
    engage in a hostile activity in a foreign State.

Penalty: Imprisonment for 20 years.

  1. (2)
    A person shall not be taken to have committed an offence against this section unless:
  1. (a)
    at the time of the doing of the act that is alleged to constitute the offence, the person:
  1. (i)
    was an Australian citizen; or
  1. (ii)
    not being an Australian citizen, was ordinarily resident in Australia; or
  1. (b)
    the person was present in Australia at any time before the doing of that act and, at any time when the person was so present, his or her presence was for a purpose connected with that act, or for purposes that included such a purpose.
  1. (3)
    For the purposes of subsection (1), engaging in a hostile activity in a foreign State consists of doing an act with the intention of achieving any one or more of the following objectives (whether or not such an objective is achieved):
  1. (a)
    the overthrow by force or violence of the government of the foreign State or of a part of the foreign State;

(aa) engaging in armed hostilities in the foreign State;

  1. (b)
    causing by force or violence the public in the foreign State to be in fear of suffering death or personal injury;
  1. (c)
    causing the death of, or bodily injury to, a person who:
  1. (i)
    is the head of state of the foreign State; or
  1. (ii)
    holds, or performs any of the duties of, a public office of the foreign State or of a part of the foreign State.”
  1. [71]
    Count 3 concerns a contravention of s 101.6(1) of the Criminal Code which states as follows:

101.6 Other acts done in preparation for, or planning, terrorist acts

  1. (1)
    A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

Penalty: Imprisonment for life.

  1. (2)
    A person commits an offence under subsection (1) even if:
  1. (a)
    a terrorist act does not occur; or
  1. (b)
    the person’s act is not done in preparation for, or planning, a specific terrorist act; or
  1. (c)
    the person’s act is done in preparation for, or planning, more than one terrorist act.
  1. (3)
    Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1).”
  1. [72]
    As these are Commonwealth offences, the sentencing principles outlined in s 16A of the Crimes Act are applicable.  The overall approach is stated in s 16A(1) that “a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”.
  2. [73]
    On the facts of this particular case, section 16A(2)(c) is also relevant, which states:

“(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

...

  1. (c)
    if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;

…”

  1. [74]
    Section 19AB of the Crimes Act sets out when a Court must fix a non-parole period.
  2. [75]
    Section 17A of the Crimes Act outlines further restrictions on imposing sentences, including that the sentence must be appropriate in all of the circumstances.
  3. [76]
    Count 3, being an offence against s 101.6(1) of the Criminal Code, is a “terrorism offence” and therefore s 19AG of the Crimes Act is also relevant.  Section 19AG states as follows:

19AG Nonparole periods for sentences for certain offences

  1. (1)
    This section applies if a person is convicted of one of the following offences (each of which is a minimum nonparole offence) and a court imposes a sentence for the offence:
  1. (b)
    a terrorism offence;
  1. (c)
    an offence against Division 80 of the Criminal Code;
  1. (d)
    an offence against subsection 91.1(1) or 91.2(1) of the Criminal Code.

Note: A sentence for a minimum nonparole offence is a federal sentence, because such an offence is a federal offence.

  1. (2)
    The court must fix a single nonparole period of at least 3/4 of:
  1. (a)
    the sentence for the minimum nonparole offence; or
  1. (b)
    if 2 or more sentences have been imposed on the person for minimum nonparole offences—the aggregate of those sentences.

The nonparole period is in respect of all federal sentences the person is to serve or complete.

  1. (3)
    For the purposes of subsection (2):
  1. (a)
    a sentence of imprisonment for life for a minimum nonparole offence is taken to be a sentence of imprisonment for 30 years for the offence; and
  1. (b)
    it does not matter:
  1. (i)
    whether or not the sentences mentioned in that subsection were imposed at the same sitting; or
  1. (ii)
    whether or not the convictions giving rise to those sentences were at the same sitting; or
  1. (iii)
    whether or not all the federal sentences mentioned in that subsection are for minimum nonparole offences.

  1. (5)
    Sections 19AB, 19AC, 19AD, 19AE and 19AR have effect subject to this section.

Note: The effects of this include preventing a court from:

  1. (b)
    confirming (under paragraph 19AD(2)(d)) a preexisting nonparole period; or
  1. (c)
    confirming (under paragraph 19AE(2)(d)) a recognizance release order; or

(ca) making a recognizance release order under paragraph 19AE(2)(e) or 19AR(2)(e); or

  1. (d)
    declining (under subsection 19AB(3) or 19AC(1) or (2) or paragraph 19AD(2)(f)) to fix a nonparole period.”

Approach to specific errors

  1. [77]
    The general approach for appeals against sentences was described in House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at pp 504 – 505:

“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”

  1. [78]
    In AB v The Queen (1999) 198 CLR 111, Hayne J elaborated as to the difference between an error in sentencing and a sentence that is manifestly excessive.  Commenting on the quote above in House v The King, Hayne J stated at p 160:

“The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.” (Emphasis in original)

  1. [79]
    The approach to an application raising specific error is as identified in the authorities outlined above.  The Court is to consider whether some error has been made in exercising the discretion and if an error is found then the sentence should be set aside and the sentencing discretion re-exercised.

First ground of appeal ‒ error in respect of s 19AG(2)

  1. [80]
    The first ground of appeal is quite narrow and encompasses an error on the basis that the learned sentencing judge erred in interpreting the application in s 19AG(2) in setting a single non-parole period in accordance with s 19AB(1) of the Crimes Act.  It is submitted that her Honour misconstrued s 19AG(2) and concluded that it required a non-parole period of no less than three quarters of the head sentence for both offences, notwithstanding the fact that s 19AG(2) did not apply to count 1.
  2. [81]
    This ground also focuses on a single paragraph of her Honour’s sentencing remarks where it is stated:

“It must be observed, however, that pursuant to section 19AB(1) if the Court imposes a head sentence of imprisonment which in the aggregate exceeds three years, the Court must, as I said, set a single non-parole period because of the effect of section 19AG(2) which requires a single non-parole period to be at least three-quarters of the aggregate sentence. The Court should take that fact into account when a global sentence comprehending the totality of your criminality is imposed for count 3.”[30] (Emphasis added)

  1. [82]
    The applicant submits that this reference to three quarters of the “aggregate sentence” is incorrect and that the correct approach is that the aggregate non-parole period may not be less than three quarters of the “minimum non-parole period offence.”
  2. [83]
    The respondent submits that her Honour did not misunderstand the effect of s 19AG as it is clear from reading the sentencing remarks as a whole and also from the interactions with counsel at the hearing that her Honour understood that the three quarters non-parole period requirement applied only to the sentence to be imposed for count 3, and did not apply in respect of count 1.[31]
  3. [84]
    The respondent submitted that:

“The impugned reference made by her Honour to s 19AG(2) requiring the imposition of a single non-parole that was at least ¾ of the ‘aggregate sentence’ must be seen in its proper context. When the sentencing remarks are read as a whole it is plain that Her Honour’s reference to the ‘aggregate sentence’ was simply a reference to the global sentence to be imposed for Count 3, reflecting the totality of the Applicant’s criminality.”[32]

  1. [85]
    Given the use of the term “aggregate” in s 19AB, it would have been preferable for an alternative term to be used by the learned sentencing judge when referring to the global or head sentence to be imposed for count 3 taking into account the entire criminality and other relevant factors.
  2. [86]
    However, the sentencing remarks as a whole and the approach to the structure of the sentence imposed clearly indicate that her Honour did not misunderstand the effect of s 19AG of the Crimes Act and no error is made out.  Accordingly, this ground must fail.

Second ground of appeal ‒ sentence structure and totality

  1. [87]
    The applicant’s second ground of appeal is that her Honour committed an error when she increased the sentence for count 3 to reflect the criminality of count 1 and then mitigated that sentence to take into account the perceived effects of s 19AG of the Crimes Act.
  2. [88]
    In articulating the reasons why leave should be granted in respect of this matter, the applicant described this error as follows:

“2. It is submitted that the approach adopted by the learned sentencing judge was erroneous and contrary to the manner in which a sentence for multiple offences ought to be structured. In particular, the present application gives rise to the question of whether it was appropriate to utilise, at all, the approach sanctioned in R v. Bowditch [2014] QCA 157, in circumstances where the Crimes Act 1914 (C’th) provided a constraint in the determination of the non-parole period for one offence, but not for the second. Moreover, it is submitted that it is in the interests of the administration of justice generally that leave to appeal be granted to illustrate the proper approach to sentencing, where a person stands to be sentenced in respect of one or more offences to which the limitation of s. 19AG Crimes Act 1914 (C’th) applies and concurrently in respect of one or more offences to which the limitation does not apply.”

  1. [89]
    The approach taken by her Honour can be summarised as follows:
    1. (a)
      The sentence to be imposed in relation to count 3, being the more serious of the two charges, was to reflect the criminality involved in count 1.  This approach was in accordance with the principle outlined in R v Nagy.
    2. (b)
      As the sentence of imprisonment to be imposed was in respect of two Commonwealth offences where the aggregate sentence exceeded three years pursuant to s 19AB(1) of the Crimes Act, a single non-parole period was to be fixed.
    3. (c)
      Ordinarily, the single non-parole period would be the minimum period that justice requires the offender serve before entitlement to release on parole.[33]
    4. (d)
      However, s 19AG of the Crimes Act mandates a “minimum non-parole period” in respect of certain offences, including a terrorism offence.  In those circumstances, the Court must fix a non-parole period of at least three quarters of the sentence imposed for the “minimum non-parole period offence.”
    5. (e)
      Here, count 3 was a “minimum non-parole period offence.”  Count 1 was not.
    6. (f)
      Consideration also needed to be given to the total sentence to be imposed.  It was a matter of discretion for the learned sentencing judge to structure the sentence in a way that resulted in the sentence being just and appropriate and reflecting the totality of the criminality involved.
    7. (g)
      In considering whether cumulative sentences were an appropriate way to proceed, her Honour noted that it was necessary to avoid a more “crushing sentence” that could be produced by cumulative sentences.[34]
    8. (h)
      Her Honour was aware of and understood the effect of s 19AG of the Crimes Act.  In particular, her Honour was aware that the minimum three quarter non-parole period applied only to the sentence to be imposed on count 3 and not on count 1.[35]
    9. (i)
      The effect of s 19AG(2) was to be considered in relation to issues of totality and the appropriate accumulation of a sentence for count 3 reflecting the additional criminality involved in count 1.  This was done by recognising that a component was not subject to the minimum non-parole period and making an “adjustment” to reflect this.
    10. (j)
      At the same time, her Honour was required to proceed on the basis of an “instinctive synthesis” and to avoid a “two-stage approach” consistent with the High Court’s comments in Markarian v The Queen.[36]

Is there an error of principle in the sentence?

  1. [90]
    It is submitted that the error complained of is evidenced in a couple of paragraphs in the sentencing remarks as follows:

“In doing so, the Prosecution submits that the Court may consider that the conduct which is the subject of count 1 may justly and appropriately be reflected in a global sentence for count 3 by imposing a greater overall sentence for count 3 but ameliorating what may otherwise have been considered to be an appropriate global sentence to take into account the effect of the imposition of a single minimum non-parole period because of the application of section 19AG(2). That is because section 19AG(2) would not otherwise apply to count 1.

Accordingly, I hold that the sentence imposed on count 3 is increased because of taking into account count 1; but ameliorated to take account of the fact that the minimum non-parole period does not apply to count 1 and also to take account of your plea of guilty.”[37]

Applying the Nagy approach to Commonwealth offences

  1. [91]
    The requirement under s 16A(1) of the Crimes Act that “a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence” is the overriding consideration.
  2. [92]
    It is relevant to therefore consider whether it is open to utilise the approach in R v Nagy when imposing a sentence in respect of Commonwealth offences.
  3. [93]
    The approach to sentencing as outlined in R v Nagy appears to be consistent with the principles recognised by the High Court in Johnson v The Queen in relation to State courts sentencing offenders for Commonwealth offences.[38]  In that case, a flexible approach in respect of State approaches was endorsed, providing that the approach taken is consistent with the totality principle expressed in cases such as Mill v The Queen[39] and Pearce v The Queen.[40]
  4. [94]
    In Johnson v The Queen the applicant was charged with:
    1. (a)
      One count of attempting to obtain prohibited imports (5,000 ecstasy tablets) under s 233B of the Customs Act 1901 (Cth); and
    2. (b)
      One count of attempting to obtain cocaine under the same section.
  5. [95]
    The appellant appealed the finding of the Court of Criminal Appeal of the Supreme Court of Western Australia that the sentencing judge had not erred in law in failing to apply the provisions of Part IB of the Crimes Act, and specifically ss 16A and 16B, supplemented by the common law of Australia.
  6. [96]
    In particular, the appellant submitted that the sentencing judge, in structuring the sentence and applying the totality principle, adopted a peculiarly Western Australian sentencing approach and acted contrary to the joint judgment in Pearce.[41]  In relation to this point Gummow, Callinan and Heydon JJ stated at [26]:

“The first matter to be noticed in this regard is that the joint judgment in Pearce recognises the currency of Mill by referring to the principles of totality which it reiterates.  The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency.  Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served.  To do that is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the effective sentence to be imposed on an offender.  The preferable course will usually be the one which both cases commend but neither absolutely commands.  Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected.  The trial judge here did not offend any of the principles stated in Mill or Pearce.  His only error may have been to fail to state the starting and ending dates [of the sentence], but this was neither to apply a uniquely Western Australian principle, nor otherwise to make an appealable error.  What his Honour did was obvious enough and did not fail in substance to give effect to the Act.” (emphasis added)

  1. [97]
    Chief Justice Gleeson, agreeing with the majority, stated at [2]:

“…the submission that there is inconsistency between the principles stated in Mill v The Queen and Pearce v The Queen, and that Pearce effectively eliminated one of the two alternative courses said in Mill to be available to sentencing judges, should be rejected.”

  1. [98]
    Further, the decision in Hili v The Queen[42] also endorses this approach:

“As noted in Johnson v The Queen, s 16A of the Crimes Act, on its proper construction, accommodates the application of common law principles of sentencing, such as the principle of ‘totality’ discussed in Mill v The Queen.  Section 16A accommodates the application of that and some other judicially developed general sentencing principles because those principles give relevant content to the statutory expression ‘of a severity appropriate in all the circumstances of the offence’ used in s 16A(1), as well as some of the expressions used in s 16A(2), such as ‘the need to ensure that the person is adequately punished for the offence’ (s 16A(2)(k)).”  (footnotes omitted)

  1. [99]
    There is no error of principle in applying the approach in R v Nagy on the basis that these are Commonwealth offences.  The approach is open to be applied subject to the overriding consideration stated in s 16A(1) that the sentence is “of a severity appropriate in all the circumstances of the offence”.

Course of conduct

  1. [100]
    An issue arose at the hearing of the application as to whether the sentencing judge had fallen into error in proceeding on the basis of the Crown’s submission that the two offences were part of a “course of conduct.”
  2. [101]
    The Count 1 offence was committed on 9 March 2014.  The Count 3 offence was committed during a 13 day period between 28 August and 10 September 2014.  The summary charges were committed on 10 September 2014.
  3. [102]
    The material before the learned sentencing judge included the Prosecution’s Outline of Submissions on Sentence (Amended),[43] which steps through the various factors identified in s 16A of the Crimes Act.  Starting at [74] there is a discussion of s 16A(2)(c) in respect of “if the offence forms part of a course of conduct consisting of a series of criminal acts of the same nature or a similar character, that course of conduct.”
  4. [103]
    The submissions on this point are as follows:

“74. The Defendant is to be sentenced in respect of two offences committed as part of a continuing course of conduct engaged in by the Defendant over a period of approximately seven months. During this period the Defendant engaged in a series of acts that were connected in purpose and intent. Although the offences are different in nature they were motivated by the same religious and ideological mind-set and world view.

  1. The principle of totality will be relevant to the sentencing exercise. The Prosecution submits that Count 3 is the more serious of the two offences. The Prosecution submits that the sentences should be structured so that the sentence to be imposed on Count 3 properly reflects the totality of the Defendant’s conduct, and represents an overall sentence that is just and appropriate to the totality of the offending behaviour.”
  1. [104]
    In respect of this issue, in the sentencing remarks her Honour stated:

“The next sentencing principle is found in 16A(2)(c):

If the offence forms part of a course of conduct consisting of a series of criminal acts of the same nature or a similar character -- that course of conduct.

The Prosecution submits that you are to be sentenced in respect of two offences committed as part of a continuing course of conduct engaged in by you over a period of approximately seven months. During this period, you engaged in a series of acts that were connected in purpose and intent. Although the offences are different in nature, they were motivated by the same religious and ideological mindset and world view.

The principle of totality will be relevant to the sentencing exercise. The Prosecution submits and I accept that count 3 is the more serious of the two offences. Both the Prosecution and the Defence submit that the sentences should be structured so that the sentence to be imposed on count 3 properly reflects the totality of your conduct and represents an overall sentence that is just and appropriate to the totality of your offending behaviour.”[44]

  1. [105]
    The applicant argues that, as there are two different types of offending (one being a terrorism offence and one not), they are date specific and each with different elements, then it was incorrect to analyse the offences in this way.  The applicant submits that there was not a continuing course of conduct over a seven month period and this analysis amounts to an error.[45]
  2. [106]
    In oral submissions before this Court the respondent submitted that s 16A(2)(c) was relevantly engaged.[46]  Further, the respondent agreed that this is relevant to her Honour’s decision to apply the approach in R v Nagy rather than cumulative sentences:[47] namely, there were two offences committed as part of a series which were connected in terms of motivation and intent.
  3. [107]
    The respondent submitted that the approach in R v Nagy was appropriate on the following basis:

“… because ultimately under the Nagy approach the question of totality is looking at the overall offending, and here the submissions made below was that there was an overlap factually between the two matters and in terms of the motivations of the offender, but count 1, which was the attempt to go overseas, when frustrated, then led the applicant to collect weapons and to do other acts which then led to count 3.  So the two were connected in that way.  So for the purposes of totality it was appropriate to have regard to the fact that there is an overlap in that way.”[48]

  1. [108]
    Her Honour did not proceed on the basis that the offending had occurred over a seven month period.  Nor did her Honour proceed on the basis that count 1 contained any element of terrorism.  Her Honour stated in the sentencing remarks in respect of count 1:

“The creation and punishment of those offences is important for both international and national security.  However, it is also important to keep in mind that this offence is not a terrorism offence, and does not contain any element, as the prosecution correctly submits, that this offence was committed in furtherance of terrorism.  What is appropriate in this case is to impose a sentence on count 3 which reflects the whole of your criminality on both counts 1 and count 3.”[49]

  1. [109]
    The similarity between the acts constituting count 1 and count 3 that engaged s 16A(2)(c) of the Crimes Act was the motivation of the applicant seeking to travel overseas (count 1) and carry out the preparations (count 3).[50]  That is, as the respondent submitted at the hearing in this Court:

“…section 16(2)(c) [applies] because those offences were connected in that way throughout, motivated by the same ideology and the same religious beliefs and the same extremism which led to each of those being the rationale for the offence.”[51]

  1. [110]
    The meaning of s 16A(2)(c) of the Crimes Act depends largely on its application to particular facts in a case.  However, it may apply in different ways depending on those facts.
  2. [111]
    No error has been established in respect of s 16A(2)(c) of the Crimes Act.  The similarity of the offending being “motivated by the same ideology and the same religious beliefs and the same extremism” was founded in the factual background that was before the sentencing judge.[52]

No reference to how much increased or decreased or the alternative approach

  1. [112]
    One of the criticisms raised by the applicant in respect of the sentence in relation to count 3 is that it is not known with certainty:
    1. (a)
      what “discount” was applied in relation to the plea of guilty;
    2. (b)
      “how much” the sentence was ameliorated to take account of the minimum non-parole period not applying to count 1; and
    3. (c)
      what “benefit” was given to the plea of guilty.[53]
  2. [113]
    Further, it was suggested that the sentencing judge should have set out what she would have done under the alternative approach of cumulative sentences.[54]
  3. [114]
    These criticisms as identified by the applicant appear to be specific to the position where there is a mandatory minimum non-parole period.  Counsel for the applicant at the hearing expressed the issue as follows:

“In something which is as unique as this type of legislation where there is specific reference to the mandatory three-quarters of a non-parole period – or minimum mandatory three-quarters – non-parole period of three-quarters it would be – I’ve got no authority to stand here and say that that should happen, but it would be, effectively, best principle to explain how, on either of the approaches, the judge considered it should be – either of the approaches could have occurred.  So I can’t say it’s mandatory, but in the circumstances of this case, where there is no indication, with due respect – and I’ll deal with Justice Mullins’ matter so far as the Victorian authority – the New South Wales single judge decision in due course, but there is no indication by her Honour anywhere in her Honour’s sentencing remarks about those three features, what she gave for the plea of guilty, the uplift and amelioration.  So it’s – one’s left at a loss as to how her Honour came to that.  It may well have been, if her Honour was able to explain how she came to imposing that particular sentence then there would be – there may not be any error in the way she approached it, but we don’t know because it’s specifically not identified by her Honour either of the approaches, the cumulative sentence or the native sentence, we just don’t know.”[55]

  1. [115]
    The majority judgment in Markarian v The Queen outlines the proper approach to sentencing:[56]

“… That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of ‘instinctive synthesis’, as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression ‘instinctive synthesis’ may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends.”

  1. [116]
    The recent decision of the Queensland Court of Appeal in R v Kirke [2020] QCA 53 touches on the issue of “transparency” in the synthesis process of sentencing (although dealing with State offences).  In Kirke the appeal involved a primary offence which was potentially a serious violence offence and others that were not.
  2. [117]
    Before the Court of Appeal in Kirke, it was submitted that it was “hard, if not possible, to see what benefit was given to the applicant in respect of the three matters he had raised”.[57]  The three matters raised were the basis of the manslaughter being negligence, the extreme youth of the offender and his plea of guilty.
  3. [118]
    The Court of Appeal concluded at [43]:

“…the effect of the submission seem to be that unless sentencing remarks make explicit an analytical structure in which there is a theoretical starting point from which demonstrably sufficient allowance is sequentially made for relevant mitigating factors and the guilty plea, there must be some error.  But such a submission must be rejected.  Absent some form of statutory prescription, the process of sentencing so as to arrive at an outcome which is just in all the circumstances does not mandate such a sequential form of reasoning.”[58]

  1. [119]
    Section 19AG of the Crimes Act does not provide a “form of statutory prescription”.  There is no requirement under statute or otherwise for the identification of the “native” sentence and the amount of each adjustment, then the identification of an alternative cumulative sentence with an explanation for the approach taken to choose one over the other.
  2. [120]
    To require that level of explanation would be counter intuitive to the “instinctive synthesis” required in exercising the sentencing discretion.  To go into the level of detail proposed would clearly require a “two-step” process of, in effect, a “before and after” sentence and the evaluation of a fully identified alternative position.  This is not in accordance with accepted authority and it is not clearly mandated by s 19AG of the Crimes Act itself.
  3. [121]
    Her Honour identified the various relevant factors and took them into account in arriving at the ultimate sentence as explained in the sentencing remarks.  No error is made out.

The application of the Nagy approach

  1. [122]
    The last point to be considered is whether her Honour made an error of principle by imposing the global sentence on count 3 utilising the R v Nagy approach at all.
  2. [123]
    The High Court decision in Johnson v The Queen, which endorses flexibility of approach in the application of the totality principle, was decided after R v Nagy.[59]  In R v Nagy, Williams JA had come to a similar conclusion to that of the High Court in Johnson v The Queen.  In particular, Williams JA stated:[60]

“The strict ratio of Pearce is to be found in the first paragraph of the extract quoted above; the error by the judge at first instance was in doubly punishing the offender for the one act. The subsequent paragraphs in the passage quoted should, in my view, be regarded as limited to particular factual situations. What the passage does make clear is that there will from time to time be situations in which sentencing by adopting the totality approach will produce a result which cannot be supported. Griffiths is a good example of that. Another example, referred to by the High Court in Pearce, is that in certain circumstances artificial claims of disparity between co-offenders may be asserted where the totality principle is adopted.

Where a judge is faced with the task of imposing sentences for a number of distinct, unrelated offences there are a number of options open. One of those options is to fix a sentence for the most serious (or the last in point of time) offence which is higher than that which would have been fixed had it stood alone, the higher sentence taking into account the overall criminality. But that approach should not be adopted where it would effectively mean that the offender was being doubly punished for the one act, or where there would be collateral consequences such as being required to serve a longer period in custody before being eligible for parole, or where the imposition of such a sentence would give rise to an artificial claim of disparity between co-offenders. That list is not necessarily exhaustive. Such considerations may mean that the other option of utilising cumulative sentences should be adopted.” (emphasis added)

  1. [124]
    R v Nagy is not authority for the proposition that the approach can never be taken when there is a mandatory minimum non-parole period for one of the offences.  As recognised in the emphasised extract from the quote above, it is a factor that should be considered and if the offender could be required to serve a longer period in custody before being eligible for parole then this may mean that cumulative sentences should be adopted.
  2. [125]
    The decision of Griffiths v The Queen is referred to as a “good example” of when the global approach may not be appropriate.  The issue in Griffiths did concern a legislative provision providing for a non-parole period of 75 per cent of the sentence to be served for certain offences unless exceptional circumstances were found.  It is important, however, to keep in mind how that arose.  The sentencing judge in Griffiths was unaware of the legislative changes that brought in the non-parole period and did not take it into account.  The Court of Criminal Appeal increased the head sentence and did not find there were special circumstances justifying the varying of the non-parole period.
  3. [126]
    Williams JA in R v Nagy referred to a number of passages from the High Court judgment in Griffiths which give context to why Griffiths can be considered the “good example” to which Williams JA referred:

[31] Brennan and Dawson JJ. noted at 377 [of Griffiths] that ‘counsel for the applicant accepts that the Court of Criminal Appeal was entitled to increase the head sentence to 15 years, treating the head sentence as the sentence appropriate to the totality of the offences of which the applicant was convicted’. In their joint judgment Gaudron and McHugh JJ. said at 393:

‘It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effect of the sentence on the offender … This may be done through the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently or through the imposition of a head sentence appropriate to the total criminality with all other sentences to be served concurrently.’

[32] Brennan and Dawson JJ. expanded on the proper approach to sentencing in the circumstances under consideration by saying at 378:

‘The effective sentence which a court determines to be appropriate punishment for a series of offences can be framed, in most cases, either as sentences for the several offences to be served concurrently, or as cumulative sentences or as sentences which are in part cumulative and in part to be served concurrently. If, with full awareness that s. 20A applied only to those serious offences which were committed after 1 January 1988, the Court of Criminal Appeal chose to impose the head sentence of 15 years for the armed robbery committed on 8 January 1988 and to impose lesser sentences for all the other offences to be served concurrently with the 15 year sentence, the sentences so imposed are not open to objection … The true thrust of the applicant’s argument must be that, in a case where s. 20A applies to some serious offences in a series but not to others in the series, it is wrong to impose the full effective head sentence on the serious offence or offences to which s. 20A applies. We would agree that the differing application of s. 20A warrants consideration of the appropriateness of imposing the full effective sentence on the offence or offences to which s. 20A applies, but no error of principle appears merely from the Court’s having chosen that course.

[33] Further passages in the joint judgment of Gaudron and McHugh JJ. are also instructive. At 394 they said:

‘Moreover, in most, if it not all, cases the automatic imposition of s. 20A to a head sentence based on a course of conduct involving both ‘serious’ and non-serious offences must result in an injustice to the prisoner since it is unlikely that the judge would specify a non-parole period equivalent to three-quarters of the sentence in respect of offences which are not serious offences within the meaning of s. 20A. If, on the other hand, the sentencing judge decides, because of the operation of s. 20A, to impose consecutive sentences even though only one course of criminal conduct is involved, the totality principle requires that the total length of the sentences must not exceed what is appropriate for the course of criminality. This will usually mean that the sentence for the ‘serious offence’ will be lower than if it stood alone. Even when, in accordance with general principle, consecutive sentences are required for independent acts of criminality, the need to ensure that there is ‘no overlapping of the factors brought into account in determining the length of each sentence’ will often mean that the sentence for a ‘serious offence’ is lower than would be imposed if the ‘serious offence’ stood alone.’

[34] Because of the complications brought about by s. 20A which, in the view of the High Court, had not been fully appreciated below, the matter was sent back to the Court of Criminal Appeal for re-sentencing. But the passages quoted clearly indicate, in my view, that the High Court generally approved the approach described by Pincus J.A. in Kellerman v. Pecko and outlined by both Pincus J.A. and McPherson J.A. in Gilles.”[61] (emphasis added)

  1. [127]
    It cannot be said that adopting the R v Nagy approach per se was an error.  It was an approach that was open to be applied but required further consideration of the impact of the minimum non-parole period requirement on the overall sentence.  In the current application the sentencing judge was aware of it and sought to ameliorate the specific concern that was identified in Griffiths.
  2. [128]
    The case of R v Derks[62] is an example of where it was found that a global sentence was not appropriate.  In that case a manslaughter charge was increased to reflect criminality of other offending and as a result a serious violent offender declaration was made resulting in a non-parole period of 80 per cent applying in respect of all offending.
  3. [129]
    McMurdo P, with whom White JA and Fryberg J agreed, stated at [26]:

“I consider there is some merit in the applicant's contention. When a judge is sentencing an offender who has committed a series of offences, particularly where the offending constitutes a single episode as here, it is often appropriate to impose a global sentence on the gravest offence to reflect the seriousness of all the offending. The advantage of this approach is that it avoids the possibility of inadvertent error which all too often flows from the unintended consequences on parole eligibility and release dates when sentences are made cumulative. Alternatively, a judge may impose a cumulative, or a series of cumulative sentences. Either approach is acceptable provided that the ultimate sentence imposed for the offending is just. The point now raised by the applicant was not raised with the primary judge.”

  1. [130]
    The error in R v Derks was:

“In imposing the 13 year global sentence on count 8 the judge did not state he had reduced it to reflect that his offending not subject to a declaration entitled him to a parole eligibility date at about 30 per cent rather than 80 per cent”.[63]

  1. [131]
    As a result the Court of Appeal resentenced the applicant.  In doing so a cumulative sentence was imposed.
  2. [132]
    The error in Derks is to be contrasted to the circumstances of the current application where the sentencing judge was fully aware of the issue and ameliorated the head sentence to specifically take into account that count 1 was not subject to the non-parole period requirement in s 19AG of the Crimes Act.
  3. [133]
    The Court of Appeal decision in R v Armstrong[64] was also addressed in submissions.  The sentences involved both State and Commonwealth offences and as a result the sentencing requirements of the two distinct statutory schemes had to be applied.
  4. [134]
    P McMurdo JA, with whom Fraser JA and North J agreed, stated:

[32] The sentencing judge apparently considered that the three sentences should commence immediately, rather than those for the Commonwealth offences commencing at a later date, because of the way in which he had arrived at the sentence for the State offence. In other words, because the sentence for the fraud count was inflated for the criminality in all three counts, the three sentences were made concurrent.

[33] The course which his Honour took is not uncommon, outside the present context where there are both state and federal offences.”

  1. [135]
    After referring to the passage from Nagy quoted in the second paragraph at [73] above, his Honour went on to say:

“[34]  It is important to recognise that the approach which was employed is to be adopted only as a more practical alternative to the imposition of cumulative sentences. It may be adopted for reasons of convenience and simplicity, as McMurdo P described in R v Bowditch:

‘Judges have a discretion whether to impose cumulative or concurrent sentences or part-cumulative and part-concurrent sentences … Generally, judges adopt one of two approaches. They may impose an increased head sentence, usually on the most serious offence, to reflect the totality of all the offending so as to avoid the possible unintended complications and consequences which sometimes flow from the combination of cumulative sentences and complex sentencing and related statutes. On the other hand, judges may impose a cumulative sentence or a series of cumulative sentences, moderated to reflect the totality principle discussed in Mill v The Queen. Either method is apposite provided the judges make clear the method adopted and the reasons for it; that the overall effect of the sentence is not manifestly excessive; and that the sentences do not result in double punishment for the same acts. Judges often tend to adopt the former approach as its effect tends to be more easily comprehended and it is less prone to unintentionally offend the totality principle.’ (Footnotes omitted)

[35] Because this approach is adopted as a more practical alternative to the accumulation of sentences, it ought not to result in a longer period of imprisonment or a longer non-parole period than that which would result from the imposition of cumulative sentences. Yet that is what occurred in the present case and in a practical sense, it was inevitable that it would occur. That was because of the practical inevitability that (a) the sentences for the Commonwealth offences would be no more than a half of that for the State offence and (b) the parole eligibility date for the state sentence would be short of the half way mark.”[65] (Footnotes omitted)

  1. [136]
    The effect of the provisions in the State and Commonwealth sentencing principles in respect of cumulative sentences, parole and release orders, and the additional complication of a reduction for cooperation with law enforcement agencies resulted in the error in the global approach. This is an example of the sentence structure resulting in an error that needed to be corrected by way of resentencing but the Court of Appeal agreeing with the sentencing judge’s conclusion as to the time the applicant was to be in custody.[66]
  2. [137]
    In the current application, both are Commonwealth offences.  These particular issues did not arise.
  3. [138]
    Here, her Honour:
    1. (a)
      Took into account that the sentence for count 3 reflected criminality in respect of count 1;
    2. (b)
      Further adjusted the sentence for count 3 having regard to the fact that s 19AG of the Crimes Act did not apply to count 1; and
    3. (c)
      As a result, reduced the concurrent sentence for count 1.
  4. [139]
    In this way her Honour dealt with totality and the effect of s 19AG of the Crimes Act in accordance with the principles set out in the authorities.  The concern identified in Griffiths was, in effect, addressed in arriving at the ultimate sentence.
  5. [140]
    The sentence took into account the relevant sentencing principles (including the overriding consideration in s 16A of the Crimes Act) and provided that the applicant did not serve a greater minimum term than was justified and appropriate.  There is no error of principle in applying the Nagy approach as her Honour did.  This ground fails.
  6. [141]
    I have had the benefit of reading the reasons of McMurdo JA and Mullins JA and note their Honours’ comments in respect of the comparable authorities, including the more recent appeals.  For the purpose identified, I agree with their Honours’ conclusion that the sentence imposed was otherwise in accordance with the overriding principle in s 16A(1) of the Crimes Act; that is, the sentence was “of a severity appropriate in all of the circumstances of the offence”.
  7. [142]
    In these circumstances, the application for leave to appeal is refused.

Orders

  1. [143]
    The order is that:
    1. (a)
      The application for leave to appeal is refused.

Footnotes

[1]Schedule to the Criminal Code Act 1995 (Cth) (Criminal Code).

[2]The original application was filed out of time.  On 18 January 2019, the Court of Appeal extended the time to file an application for leave to appeal against sentence to 27 October 2018.  AB page 9.

[3]T1-3 line 7.

[4]T1-21 lines 5 to 18.

[5]Applicant’s submissions at [19].

[6]Applicant’s submissions at [24].

[7]Applicant’s submissions at [25].

[8][2004] 1 Qd R 63 per Williams JA.

[9]Applicant’s submissions at [26].

[10]Prosecution Summary of Facts: AB page 133-155;  Transcript reference: AB page 26 line 29 to page 43 line 1.

[11]AB page 116 lines 15-19.

[12]AB page 116 line 20.

[13]AB page 109 lines 24-27.

[14]AB page 115 lines 40-41; page 117 lines 40-43.

[15]AB page 118 lines 1-2.

[16]AB page 117 lines 38-40.

[17]AB page 115 lines 18-20.

[18]AB page 118 lines 21-22.

[19]AB page 120 lines 7-8; 20-22.

[20]AB page 120 lines 20-22.

[21]AB page 120 lines 32-34.

[22]AB page 121 line 28.

[23]AB page 121 lines 29-30.

[24]AB page 122 lines 21-24.

[25]AB page 122 line 35 to AB page 124 line 9.

[26]AB page 131 lines 22-45.

[27]Note on issues relating to non-declarable remand time.  AB page 1164-1165.

[28]AB page 1166.

[29]The relevant offences are now found in Part 5.5 of the Criminal Code.

[30]AB page 123 at line 34-39.

[31]AB page 45 line 18 to page 48 line 24.  See also AB page 123 line 1-11 and AB page 123 line 34 to page 124 line 4.

[32]Respondent’s submissions at [28].

[33]See Hili v the Queen (2010) 242 CLR 520 at 532-534.

[34]AB page 47 line 40-45.

[35]AB page 45 line 18 to page 48 line 24.  See also AB page 123 line 1-11 and AB page 123 line 34 to page 124 line 4.

[36](2005) 228 CLR 357.

[37]AB page 123 line 34 to page 124 line 4.

[38](2004) 78 ALJR 616; [2004] HCA 15.

[39](1988) 166 CLR 59.

[40](1998) 194 CLR 610.

[41]See page 624 at [25].

[42](2010) 242 CLR 520 at [25].

[43]AB page 257.

[44]AB page 118 line 38 to page 119 line 7.

[45]T1-8 line 22 to 39.

[46]T1-15 line 35.

[47]T1-16 line 3 to 9.

[48]T1-16 line 19 to 26.

[49]AB page 115 line 4 to 9.

[50]T1-17 line 14 to 16.

[51]T1-17 line 27 to 30.

[52] See e.g. AB page 99 line 35-36; AB page 102; AB page 106 line 21-25.

[53]T1-9 line 5 to 11.

[54]T1-9 line 37 to 42.

[55]T1-10 line 4 to 19.

[56](2005) 228 CLR 357 at 375 per Gleeson CJ, Gummow, Hayne and Crennan JJ.

[57]At [41].

[58]Citing Markarian v The Queen (2005) 228 CLR 357 at [27] and R v Randall [2019] QCA 25 at [38].

[59]Nagy was delivered on 2 May 2003.  Johnson was delivered on 30 March 2004.

[60]At [38] to [39].

[61]R v Nagy at [31] to [34].

[62][2011] QCA 295.

[63]At [28].

[64][2016] QCA 243.

[65]At [32] to [35].

[66]At [43].

Close

Editorial Notes

  • Published Case Name:

    R v Kruezi

  • Shortened Case Name:

    R v Kruezi

  • MNC:

    [2020] QCA 222

  • Court:

    QCA

  • Judge(s):

    McMurdo JA, Mullins JA, Williams J

  • Date:

    13 Oct 2020

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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