Al-Kutobi and Kiad v R [2023] NSWCCA 155

Al-Kutobi and Kiad v R [2023] NSWCCA 155

The appeal was upheld because, in light of the subsequently clarified law in Xiao v R and the respondent's concession, the sentencing process miscarried by not providing an identifiable utilitarian discount for the guilty pleas. On re-sentence, a 10% utilitarian discount was appropriate. Although the conspiracy to prepare or plan a terrorist act was above mid-range seriousness and required denunciation and general deterrence, the post-sentence evidence of onerous custody, COVID-19 restrictions, movement to a less secure correctional centre, rehabilitation, reduced risk, and public renunciation of extremist beliefs justified a lesser sentence of 16 years' imprisonment with a 12-year...

Jurisdiction
Australia
Judgment Date
26 June 2023
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Appeal
Outcome
Leave to appeal against sentence granted; appeal upheld; original sentences quashed; each applicant re-sentenced to 16 years' imprisonment with a non-parole period of 12 years.
Legal Topics
['utilitarian Value of Guilty Plea for Commonwealth Offence' 'xiao Error' 're Sentencing' 'post Sentence Evidence' 'rehabilitation and Renunciation of Extremist Beliefs' 'purposes of Sentencing for Terrorism Offences' 'non Parole Period for Terrorism Offence']
['criminal Law' 'sentencing' 'terrorism Offences' 'criminal Appeals'] ['utilitarian Value of Guilty Plea for Commonwealth Offence' 'xiao Error' 're Sentencing' 'post Sentence Evidence' 'rehabilitation and Renunciation of Extremist Beliefs' 'purposes of Sentencing for Terrorism Offences' 'non Parole Period for Terrorism Offence']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge failed to take into account the utilitarian value of the applicants' pleas of guilty for a Commonwealth offence." 'Whether the Court should intervene on the basis of asserted error after Xiao v R and exercise the sentencing discretion afresh.' 'Whether a lesser sentence was warranted in law having regard to the utilitarian value of the pleas, post-sentence evidence, harsh custody, renunciation and rehabilitation.' 'What sentence should be imposed on each applicant upon re-sentence.']

Ratio Decidendi

The appeal was upheld because, in light of the subsequently clarified law in Xiao v R and the respondent's concession, the sentencing process miscarried by not providing an identifiable utilitarian discount for the guilty pleas. On re-sentence, a 10% utilitarian discount was appropriate. Although the conspiracy to prepare or plan a terrorist act was above mid-range seriousness and required denunciation and general deterrence, the post-sentence evidence of onerous custody, COVID-19 restrictions, movement to a less secure correctional centre, rehabilitation, reduced risk, and public renunciation of extremist beliefs justified a lesser sentence of 16 years' imprisonment with a 12-year...

Court Disposition

Leave to appeal against sentence granted; appeal upheld; original sentences quashed; each applicant re-sentenced to 16 years' imprisonment with a non-parole period of 12 years.

Orders

  • ['Leave to appeal against sentence granted, and appeal upheld.' 'The sentence imposed on 9 December 2016 is quashed.' 'In substitution, each applicant is sentenced to a head sentence of imprisonment of 16 years, to commence on 10 February 2015, and expire on 9 February 2031, with a non-parole period of 12 years to...