R v Lelikan (No 5) [2019] NSWSC 494

R v Lelikan (No 5) [2019] NSWSC 494

Although the offender intentionally was an informal member of the PKK knowing it was a terrorist organisation, his conduct was towards the lowest order of seriousness: he was not a leader or militant, held no rank, provided no practical support, and acted as a passive, sympathetic chronicler whose support was expressed through writing, photography, uniform, weaponry and travel with guerrillas. The character of the PKK, the geographically limited and contested nature of its conflict, the offender's traumatic Kurdish background, his renunciation of violent or criminal support, low risk of violence, compliance on bail and harsh prior custody meant that, after considering all alternatives...

Jurisdiction
Australia
Judgment Date
07 May 2019
Procedural Posture
Criminal Sentence for Membership of a Terrorist Organisation Contrary to S 102.3(1) of the Criminal Code / Sentencing After Guilty Plea to the Membership Charge; Foreign Fighting Charge Discontinued After Jury Was Unable to Agree
Outcome
The offender was convicted and, instead of imprisonment, a community correction order for 3 years from 7 May 2019 was made.
Legal Topics
['membership of a Terrorist Organisation' 'pkk' 'community Correction Order' 'objective Seriousness' 'moral Culpability' 'bugmy Considerations' 'renunciation of Violence' 'alternatives to Imprisonment']
['criminal Law' 'sentencing' 'counter Terrorism Law'] ['membership of a Terrorist Organisation' 'pkk' 'community Correction Order' 'objective Seriousness' 'moral Culpability' 'bugmy Considerations' 'renunciation of Violence' 'alternatives to Imprisonment']

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Procedural Posture

Criminal Sentence for Membership of a Terrorist Organisation Contrary to S 102.3(1) of the Criminal Code / Sentencing After Guilty Plea to the Membership Charge; Foreign Fighting Charge Discontinued After Jury Was Unable to Agree

Legal Issues

  1. 1 ['How to assess the objective seriousness of informal membership of the PKK as a listed terrorist organisation' "Whether the offender's conduct was militant participation or that of a sympathetic chronicler of the Kurdish struggle" 'How the history, ideology and conduct of the PKK affected objective seriousness and moral culpability' "Whether the offender's personal history of oppression, persecution, violence and torture reduced moral culpability under Bugmy v The Queen" 'Whether the offender had renounced violent or criminal forms of support for the PKK' 'Whether s 17A(1) of the Crimes Act 1914 (Cth) required a sentence other than imprisonment to be imposed' 'Whether a community correction order with supervision and community service work was appropriate']

Ratio Decidendi

Although the offender intentionally was an informal member of the PKK knowing it was a terrorist organisation, his conduct was towards the lowest order of seriousness: he was not a leader or militant, held no rank, provided no practical support, and acted as a passive, sympathetic chronicler whose support was expressed through writing, photography, uniform, weaponry and travel with guerrillas. The character of the PKK, the geographically limited and contested nature of its conflict, the offender's traumatic Kurdish background, his renunciation of violent or criminal support, low risk of violence, compliance on bail and harsh prior custody meant that, after considering all alternatives...

Court Disposition

The offender was convicted and, instead of imprisonment, a community correction order for 3 years from 7 May 2019 was made.

Orders

  • ['The offender is convicted of the offence of membership of a terrorist organisation contrary to s 102.3(1) of the Criminal Code.' 'Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act, instead of imposing a sentence of imprisonment, a community correction order is made for a period of 3 years from 7 May...