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This case considered whether the “Nagy approach” to sentencing – imposing an increased head sentence, usually on the most serious offence, to reflect the totality of all the offending – could be adopted by a sentencing judge in circumstances where a mandatory non-parole period applied to only one of the offences. 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). Count 3 was a terrorism offence and therefore s 19AG of the Crimes Act 1914 (Cth) required the applicant to serve three-quarters of the sentence before being eligible for parole. Generally, the Nagy approach should not be adopted where there would be “collateral consequences”, such as requiring the offender to serve a longer period before being eligible for parole. However, as the sentencing judge had been alive to these risks and ameliorated the sentence accordingly there was no error. The application for leave to appeal was refused.
McMurdo and Mullins JJA and Williams J
13 October 2020
The applicant sought leave to appeal against a sentence of 17 years and four months’ imprisonment, with a non-parole period of 13 years, imposed by the learned sentencing judge in the Supreme Court at Brisbane on 31 July 2018, in respect of one count of preparations for incursions into a foreign state (count 1) and acts in preparation for, or planning, a terrorist act (count 3). The sentences were to be served concurrently. A total of 972 days in pre-sentencing custody was declared as time already served. . The sentencing judge also took into account that the applicant had spent 14 months and 22 days in pre-sentence custody which could not be declared. .
The applicant was born on 14 September 1992 and is an Australian born citizen of Albanian descent. He is of the Muslim Sunni faith. Both of the offences committed by the applicant occurred in the context of the ongoing Syrian civil war and armed conflict. –, . For further details of the circumstances of the offending see , , and .
Summary of relevant statutory provisions
As these are Commonwealth offences, the sentencing principles outlined in s 16A of the Crimes Act 1914 (Cth) are applicable. Section 16A(1) provides that “a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”. .
Section 19AB(1) sets out when a court must fix a single non-parole period in respect of a federal offence. .
Count 3, being an offence against s 101.6(1) of the Criminal Code 1995 (Cth), was a “terrorism offence” and therefore s 19AG applied. It required the Court to impose a minimum non-parole period of at least three-quarters of the sentence of imprisonment that had to be imposed. No statutory minimum applied to count 1. , , .
The Nagy approach was adopted at sentence
Quoting the reasons of McMurdo P in R v Bowditch  QCA 157, the Court of Appeal observed that:
“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 … [or] judges may impose a cumulative sentence or a series of cumulative sentences, moderated to reflect the totality principle.” .
The first approach was set down in R v Nagy  1 Qd R 63 and was adopted in this case by the learned sentencing judge. . The sentencing judge summarised the approach to the applicant’s sentence as follows:
“ … 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.” .
On appeal, the applicant’s “ultimate position” was that the Nagy approach should not have been adopted and cumulative sentences ought to have been imposed in the circumstances where there is a mandatory non-parole period for one of the two offences. .
Decision of the Court of Appeal
The application for leave to appeal was refused (McMurdo and Mullins JJA; Williams J in separate reasons).
The first ground of appeal was “quite narrow” and alleged that the sentencing judge erred in applying a non-parole period of no less than three quarters of the head sentence for both offences, notwithstanding that s 19AG(2) did not apply to count 1. .
In applying the Nagy approach, a higher sentence, often termed the “global” sentence is imposed for the most serious offence to reflect the overall criminality. McMurdo and Mullins JJA observed that:
“Despite that description, the higher sentence that is selected…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.” .
There was therefore no error in applying the minimum non-parole period of three-quarters to the sentence for count 3. . Williams J also held that her Honour did not misunderstand the effect of s 19AG. .
The second ground of appeal alleged that the sentencing judge erred in applying the Nagy approach. , .
McMurdo and Mullins JJA and, separately, Williams J, held that the Nagy approach was not precluded by s 16A(1). . Williams J observed: “It cannot be said that adopting the R v Nagy approach per se was an error”. .
In R v Nagy, Williams JA stated that the approach “should not be adopted … where there would be collateral consequences such as being required to serve a longer period in custody before being eligible for parole”. .
The Court found, however, that the sentencing judge was “acutely aware of the potential collateral consequence”. . Her Honour “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 of s 19AG of the Crimes Act”. .
The approach of the sentencing judge was summarised by Williams J as follows:
“Here, her Honour:
(a) Took into account that the sentence four count 3 reflected criminality in respect of count 1;
(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
(c) As a result, reduced the concurrent sentence for count 1.” .
The Court found that the sentence for count 3 otherwise complied with s 16A(1) and was of an appropriate severity in all the circumstances. , .
A Hughes of Counsel