R v Mallah [2005] NSWSC 317

Procedural Posture

Criminal Sentencing / Sentence After Guilty Plea to One Count Following Acquittal on Two Counts

Legal Issues

1. 1 ["What sentence should be imposed for recklessly making to another person a threat to cause serious harm to a Commonwealth public official by reason of that person's status." "How the offender's acquittal on terrorism counts affected the assessment of objective criminality for the threat offence." 'Whether the threats were genuine or bluster and where the offence fell on the spectrum of seriousness.' 'What allowance should be made for the guilty plea, remorse, contrition and cooperation.' 'Whether any mental condition reduced criminality or the need for deterrence.' 'Whether imprisonment was the only appropriate sentence and whether release should occur by recognisance release order.']

Ratio Decidendi

The offence was serious because the threats, although not found to be accompanied by a genuine settled intention to kill, were more than an isolated nuisance statement and required diversion of counter-terrorism and Commonwealth resources. The offender's plea, remorse, contrition, cooperation, youth, strict custodial conditions and prospects of supervised rehabilitation justified moderation, but the need for punishment, personal deterrence and general deterrence made imprisonment the only appropriate sentence, with release to occur by recognisance release order rather than suspension.

Court Disposition

The Prisoner was sentenced to imprisonment for 2 years and 6 months, backdated to 3 December 2003 and expiring on 2 June 2006, with release ordered on 2 September 2005 upon recognisance without surety subject to conditions.

Orders

• ['Zaky Mallah is sentenced to imprisonment for 2 years and 6 months to date from 3 December 2003 and to expire on 2 June 2006.' 'An order is made that he be released on 2 September 2005 upon giving security, by way of a recognisance, without surety.' 'He must be of good behaviour for a period of 2 years from 2...