R v Lelikan [2019] NSWCCA 316

R v Lelikan [2019] NSWCCA 316

It is not appropriate for a sentencing court to take into account the merits of the cause or ideology of a proscribed terrorist organisation when assessing the seriousness of an offence under s 102.3(1) of the Criminal Code (Cth). Instead, seriousness should be assessed based on the organisation’s history and activity, method, and threat, and the offender’s knowledge and involvement. Although the sentencing judge erred by considering the PKK's merits and ideology and the contentiousness of its proscription, the residual discretion not to intervene in the sentence should be exercised, as the prosecution’s conduct below and the circumstances did not warrant appellate correction.

Jurisdiction
Australia
Judgment Date
23 December 2019
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal dismissed
Legal Topics
['terrorism Offences' 'sentencing' 'membership of Terrorist Organisation']
['criminal Law'] ['terrorism Offences' 'sentencing' 'membership of Terrorist Organisation']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge erred by considering the merits and ideology of the proscribed organisation (PKK) when assessing the objective seriousness of the offence and moral culpability' 'Whether the objective seriousness of the offence was correctly assessed' "Whether the respondent's background and past convictions properly affected sentencing" 'Whether the residual discretion to not interfere with sentence should be exercised']

Ratio Decidendi

It is not appropriate for a sentencing court to take into account the merits of the cause or ideology of a proscribed terrorist organisation when assessing the seriousness of an offence under s 102.3(1) of the Criminal Code (Cth). Instead, seriousness should be assessed based on the organisation’s history and activity, method, and threat, and the offender’s knowledge and involvement. Although the sentencing judge erred by considering the PKK's merits and ideology and the contentiousness of its proscription, the residual discretion not to intervene in the sentence should be exercised, as the prosecution’s conduct below and the circumstances did not warrant appellate correction.

Court Disposition

Appeal dismissed

Orders

  • ['Appeal dismissed']