AH v R [2023] NSWCCA 230

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AH v R [2023] NSWCCA 230 Hearing dates: 16 August 2023 Decision date: 15 September 2023 Before: Leeming JA; N Adams J; Dhanji J Decision: 1. Extension of time for bringing this appeal is granted. 2. Leave to appeal is granted. 3. The appeal is allowed. 4. The sentence imposed by the Supreme Court on 22 June 2018 is quashed and in lieu thereof the applicant is sentenced to 7 years and 6 months imprisonment to date from 24 April 2016 and to expire on 23 October 2023, with a non-parole period of 5 years, 7 months and 15 days. 5. Pursuant to s 105A.23 of the Criminal Code Act 1995 (Cth), the applicant is warned that an application may be made for a continuing detention order or an extended supervision order requiring him to be either detained or supervised after the completion of the sentence. Catchwords: CRIME – appeals – appeals against sentence – offence of doing an act in preparation for, or planning, a terrorist act – whether sentencing judge erred in determining objective seriousness – large body of material addressing offender's youth, lack of insight, mental illness, remorse and prospect of rehabilitation – whether error in failing to make findings in respect of offender's subjective case – whether sentence manifestly excessive – significance for purpose of resentencing of harsher conditions of imprisonment than could have been foreseen – significance of subsequently enacted legislation restricting availability of parole – appeal allowed and offender resentenced Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 15A Crimes Act 1914 (Cth), ss 3LA, 16A(1), 16(2)(a)(m) 19AG(2), (4A), (4B), 19 ALB Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3) Criminal Code Act 1995 (Cth), ss 101.6(1), 11.5(1) Cases Cited: Clarke v R [2023] NSWCCA 170 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 Elmir v R [2021] NSWCCA 19; 357 FLR 274 Hamzy v Commissioner of Corrective Services NSW (2022) 107 NSWLR 544; [2022] NSWCA 16 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 KT v R [2008] NSWCCA 51; 182 A Crim R 571; Lee, Matthew v R [2016] NSWCCA 146 Lee v R [2023] NSWCCA 70 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Patel v R [2022] NSWCCA 93; (2022) 366 FLR 314 R v AH [2018] NSWSC 973 R v Alou (No 4) [2018] NSWSC 221 R v Kahar [2016] EWCA Crim 568; [2016] 1 WLR 3156 R v Khaja (No 5) [2018] NSWSC 238 Category: Principal judgment Parties: AH (Applicant) Rex (Respondent) Representation: Counsel: Ms G E Lewer and Ms N Evans (Applicant) Ms P McDonald SC and Mr C Tran (Respondent)