Khan v R

1. [1]

   BEECH-JONES CJ at CL: I am grateful to Rothman J for setting out the background to the application. I agree with his Honour that both grounds of the application and the application itself must be dismissed.

2. [2]

   Ground 1 contends that his Honour erred in failing to:

3. [3]

   This ground can be addressed by reference to his Honour’s sentencing judgment (R v Khan (No 11) [2019] NSWSC 594). At [108], his Honour expressly referred to the applicant’s “history of mental illness includ[ing] his admission to Campbelltown Hospital in April 2013 with a provisional diagnosis of OCD, and a differential diagnosis of prodromal psychotic illness”. His Honour noted that “[a]t the time of his discharge, some 10 weeks later, the confirmed diagnosis was one of OCD.” His Honour then summarised the competing diagnoses of the various psychiatrists (at [109]) and noted the Crown’s position “that it was not necessary for me to reach an affirmative conclusion as to the nature of the offender’s present mental illness and I did not understand counsel for the offender to cavil with that proposition”. This is an accurate summary of the submissions that were made to his Honour. His Honour then observed that “on any view of it, the offender suffers from some form of mental illness, be it schizophrenia or OCD” and “the question is how that impacts upon sentence generally, and the question of general deterrence in particular” (at [110]).

4. [4]

   His Honour then noted that it was the Crown’s submission that “as there was no causal connection between the offender’s mental illness and his offending, any moderation of general deterrence should not be great” and “that the offender’s conditions of custody were not rendered any more onerous on account of his mental illness” (at [111]). His Honour then recorded the submission of the applicant’s counsel as follows (at [112]):

5. [5]

   The emphasised part of this extract refers to an exchange between counsel for the applicant and his Honour in oral submissions in which counsel accepted that there was no causal connection between the offending and the applicant’s mental illness but nevertheless embraced a suggestion from his Honour that his mental illness was “still relevant on general deterrence”. [1] This was something of a qualification of the written submissions that counsel had filed over a week prior in which it was submitted that the applicant’s “youth and mental impairment at the time of the offending conduct and thereafter means that he is not an appropriate vehicle for general deterrence”. [2] In the same submissions Counsel had also contended that the applicant’s mental condition “remains of some consideration with respect to the assessment of moral culpability”. [3] This was the only reference in the sentencing proceedings before his Honour to “moral culpability”.

6. [6]

   Next in the sentencing judgment His Honour set out the passage from Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177] and then made the following findings (at [114]):

7. [7]

   The emphasised portion of this passage demonstrates that, consistent with the submission that was made by counsel for the applicant to his Honour, some mitigation of the full application of general deterrence on account of the applicant’s mental illness was warranted notwithstanding that there was no causal connection between that illness and the offence.

8. [8]

   Consistent with the terms of ground 1, the applicant’s written submissions contended that, although his Honour did take the applicant’s mental illness into account on the issue of his suitability as a vehicle for general deterrence, there was no “consideration at all of the effect on sentence of the terribly reduced function of the applicant from the end of 2012 to the time of his offending.” [4] However, as noted, His Honour expressly referred to his history of mental illness and otherwise addressed general deterrence in precisely the terms that were raised by Counsel for the applicant.

9. [9]

   The balance of the submissions in relation to this ground rest on the contention that “this was a case where assessment of the applicant’s moral culpability for his offending was very important, but not undertaken”. [5]

10. [10]

    An assessment of the “objective seriousness” of an offence and the “moral culpability” of the offender are two separate but related concepts of importance, or at least relevance, to the sentencing process (Paterson v R [2021] NSWCCA 273 at [29]; “Paterson”). A mental disorder or mental impairment that is causally connected with or materially contributed to the commission of an offence can inform an assessment of its objective seriousness (Tepania v R [2018] NSWCCA 247 at [112] per Johnson J). Further, in some circumstances, mental illness (Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [54]; “Muldrock”) as well as a background of social deprivation (Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44]; “Bugmy”) can affect an assessment of an offender’s moral culpability even though they may have no causal connection to the offending (Paterson at [31]).

11. [11]

    However, an assessment that an offender’s moral culpability is reduced is ultimately tied to, or a step in the process of assessing, the various sentencing factors. In Bugmy the offender’s background of social deprivation was ultimately treated as warranting reduced weight being given to general deterrence (Bugmy at [16] and [48]). In some cases, the factors or circumstances that warrant an assessment of a reduced moral culpability and hence lesser consideration to general deterrence may nevertheless warrant greater weight being given to other sentencing considerations such as specific deterrence or the protection of the community (Bugmy at [44] to [45]; R v Engert (1995) 84 A Crim R 67 at 68).

12. [12]

    In this case the (brief) reference before his Honour to the applicant’s mental illness “remain[ing] of some consideration with respect to assessment of [his] moral culpability” [6] was solely directed to a submission that some amelioration of general deterrence was warranted. His Honour accepted that contention. In the end result, this complaint reduces to a contention that his Honour erred by not actually invoking or using the phrase reduced “moral culpability”. However, as I have sought to explain, the substance of his Honour’s reasoning was an acceptance that it was so reduced, albeit not by much. If it was not then his Honour had no basis to moderate general deterrence, as his Honour did, albeit not significantly.

13. [13]

    I would reject ground 1.

14. [14]

    In relation to ground 2, the relevant principle governing a complaint that a sentence is manifestly excessive was stated in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (“Hili”):

15. [15]

    The various findings made by the sentencing judge relevant to this ground are set out in the judgment of Rothman J. The sentence was undoubtedly a stern one, but it was not manifestly excessive. A nihilistic and savage attack on an innocent person for no reason other than the shirt they were wearing, accompanied by an intention to kill and carried out with the intention of advancing a political, religious or ideological cause is not only a devastating violation of the victim’s human rights but also has the potential to destabilise communities and societies. Otherwise, when it was all said and done the applicant’s subjective case was a very poor one.

16. [16]

    I would reject ground 2.

17. [17]

    As stated, I agree with the orders proposed by Rothman J.

18. [18]

    ROTHMAN J: The applicant seeks leave to appeal the sentence imposed upon him by the Supreme Court of New South Wales (Bellew J) on 5 June 2019. The Supreme Court imposed a sentence on the applicant, Ihsas Khan, of a head sentence of 36 years’ imprisonment with a non-parole period of 27 years.

19. [19]

    The sentence was backdated to commence on the day on which the applicant was arrested, being 10 September 2016, and is to expire on 9 September 2052. The applicant will be first eligible for release to parole on 10 September 2043.

20. [20]

    The applicant was convicted by a jury after trial in which the only issue arose as a consequence of the applicant pleading not guilty on the grounds of mental illness. The offence with which the applicant was charged was engaging in a terrorist act, contrary s 101.1(1) of the Criminal Code Act 1995 (Cth) (hereinafter “the Criminal Code”). The maximum sentence prescribed by the legislature for the offence is life imprisonment.

21. [21]

    The grounds of appeal are:

22. [22]

    As can be seen from the foregoing, the applicant does not appeal against his conviction. It is necessary to note that the Criminal Code defines a terrorist act in the following terms:

23. [23]

    As a consequence of the foregoing definition of terrorist act, it is necessary to set out the terms of s 100.1(2) and 100.1(3), which are in the following terms:

24. [24]

    It should be noted that, during the course of the submissions on the application for leave to appeal, the applicant clarified that the objective seriousness of the offence, as determined by Bellew J, is not the subject of challenge in this appeal. [8]

25. [25]

    The Court heard the application for leave to appeal and the appeal together, and the submissions on leave to appeal are the submissions of the applicant on the appeal, if leave were granted.

Facts

1. [26]

   In the course of the remarks on sentence, Bellew J set out the facts of the offending. [9] The sentencing judge also set out findings based upon the evidence as to the applicant’s ideology. [10]

2. [27]

   Because no issue is taken with the factual basis upon which his Honour sentenced, including the motivation for that offending, it is unnecessary to recite in detail the facts as found by Bellew J. Nor is it necessary to recite the evidence relating to those facts and the motivation. Some of those issues will be dealt with later in dealing with the relevant aspects for each of the grounds of appeal.

3. [28]

   It is sufficient to summarise the facts, for an overview, in the following terms. On 10 September 2016, the applicant stabbed Wayne Greenhalgh, the victim, multiple times with a knife, with the intention of killing him. The attack was committed in the presence of residents of the suburb in which it occurred.

4. [29]

   At the time of the offence, the applicant was 22 years of age. He held extremist beliefs and followed the ideology of the Islamic State. The victim was targeted because the applicant believed he was an American and a supporter of conduct that the applicant considered were war crimes that had occurred in the Middle East and, in particular, in Syria and Iraq. The basis for the belief that the victim was an American was the logo and words printed on a T-shirt worn by the victim.

5. [30]

   As stated, the applicant was found guilty by a jury following trial. The verdict was returned on 2 May 2019 and the applicant was sentenced on 5 June 2019. The fact that the applicant stabbed the victim was not in issue in the course of the trial.

6. [31]

   Further, the elements of the offence were not disputed and the evidence as to the offending conduct was uncontested. The intention to kill was an admission made by the applicant in the course of interviews.

7. [32]

   It was the applicant’s case that at the time of the offence he was suffering from a schizophrenic illness and, therefore, did not know that his conduct was wrong. The issue at trial was whether the applicant could rely on the defence of mental impairment as prescribed by the terms of s 7.3(1)(b) of the Criminal Code.

Remarks on sentence

1. [33]

   The proceedings on sentence occurred on 23 May 2019 and his Honour delivered his remarks on sentence on 5 June 2019. Those remarks are published. [11] In his Honour’s introduction, his Honour sets out the nature of the offence; identifies the provision that renders the conduct an offence; the maximum penalty; and the applicability of Part 1B of the Crimes Act 1914 (Cth) (“the Crimes Act”).

2. [34]

   His Honour also noted that the circumstances of the conduct that gave rise to the offence were not in issue. The stabbing of the victim, Mr Greenhalgh, was not in issue during the trial. As stated, the only issue during the course of the trial was whether, at the time of the offence, the applicant was suffering from a schizophrenic illness, which, as a consequence, deprived him of the knowledge that his conduct was wrong. [12]

3. [35]

   His Honour referred to the evidence adduced by the applicant during the course of the trial from two psychiatrists, Dr Adams and Dr Reznik, to each of whom the applicant provided a history and that he had been told by “an Islamic spirit, known as a Jinn, to stab Mr Greenhalgh”. His Honour noted that both Dr Adams and Dr Reznik expressed the view that the offender was suffering from schizophrenia at the time.

4. [36]

   Professor Greenberg, called by the Crown, expressed the opinion that the offender was not schizophrenic at the time, but was suffering from Obsessive Compulsive Disorder (“OCD”), which did not impair his capacity to understand the wrongfulness of his actions. As a consequence of the jury’s verdict of guilty, the opinions expressed by Drs Adams and Reznik were rejected.

5. [37]

   His Honour then referred to the evidence adduced on sentence by the Crown, which included:

   1. (1)

      an Affidavit of Dr Sarah-Jane Spencer from the Justice Health and Forensic Mental Health Network dated 10 May 2009, addressing the offender’s current mental state;

   2. (2)

      an Affidavit of Stephanie Scott-Smith from Corrective Services NSW dated 14 May 2009, addressing the availability of de-radicalisation programs in custody;

   3. (3)

      an Affidavit of Geoffrey Poulson from Corrective Services NSW dated 15 May 2019, setting out the offender’s current conditions of custody;

   4. (4)

      the offender’s criminal history and associated documents; and

   5. (5)

      Victim Impact Statements of:

6. [38]

   His Honour also referred to the applicant’s Affidavit of 20 May 2019 and his additional oral evidence adduced in the applicant’s case.

7. [39]

   By reference to his Honour’s own earlier judgment, [14] his Honour reiterated the general principles there summarised that apply to sentencing for offences of this nature. The summary bears repeating and is in the following terms:

8. [40]

   His Honour remarked that, as a consequence of the principles repeated above, substantial sentences are warranted for offending of this nature. That conclusion, according to his Honour, rested not only on the foregoing principles, but also because offending of that nature is difficult to detect and often committed by persons who are of prior good character and have otherwise favourable backgrounds. [16]

9. [41]

   His Honour referred to the judgment of the Court of Appeal of the United Kingdom in R v Barot [17] to the effect that terrorists, setting out to murder innocent citizens, are motivated by perverted ideology and, therefore, many are unlikely to be deterred by the length of the sentence that they risk. In some instances they are prepared to kill themselves in order to kill others more readily, and/or understand that the consequence of their action is that they will be killed, possibly inviting same.

10. [42]

    His Honour then dealt with the Victim Impact Statements, being the statement of Mr Greenhalgh and, on his Honour’s construction of the terms of ss 16A and 16AAA of the Crimes Act, bystanders who witnessed aspects of the offending or its aftermath. There is no challenge on appeal to that course by his Honour.

11. [43]

    After dealing with the Victim Impact Statements, his Honour dealt in detail with the facts of the offending, which, as already stated, were largely uncontested. The facts recited by his Honour also dealt with the material to which the applicant had recourse, informing the views that motivated his conduct. His Honour’s conclusion was that the viewing of that material formed part of the applicant’s planning and preparation for his attack on Mr Greenhalgh.

12. [44]

    It is unnecessary to recite the detailed aspects of the conduct in question and the passage of evidence relating to the applicant’s intentions in perpetrating attacks of this kind, including the particular attack to which this offence related. It is sufficient to note that the evidence discloses a distorted view of the requirements of Islam; that the applicant had in mind a number of targets; and, for later reference, the statement given to police as to the reasons that he did not kill Mr Greenhalgh, which was to the following effect:

13. [45]

    His Honour recited the circumstances of the applicant’s arrest including the urging of the applicant for police to kill him.

14. [46]

    The learned sentencing judge then referred to the evidence dealing with the applicant’s ideology, including exchanges with the police about his disappointment that Mr Greenhalgh did not die and his admiration for the Muslim who shot a police officer in Parramatta. As to the aspect of his own death, his Honour recited a passage in the following terms:

15. [47]

    The foregoing was a reference to the applicant’s disappointment that he did not die in the incident. At the time of the interview, the applicant still considered that his conduct was the “right thing to do” and likened it to “eating a Picnic bar”. [20]

16. [48]

    In his remarks, the learned sentencing judge then referred to the material that arose as a consequence of the search of the applicant’s residence. This included a journal; matters dealing with extremist ideology; documents disclosing the applicant’s admiration for a number of extremist members of Al-Qaeda; as well as files on the computer relating to extremist conduct.

17. [49]

    Next, his Honour dealt with the objective seriousness of the offending, which, it was accepted, was unsophisticated in the sense that it involved one person stabbing another.

18. [50]

    His Honour dealt with the submissions of each party before him and noted the matters to be dealt with in determining the objective seriousness of the offending. Those matters included that the conduct was not spontaneous, but was planned over a significant period of time; that the planning involved specifically targeting the victim over several months solely on the basis of a message on his T-shirt; waiting until the victim was alone to attack him; carrying out the offence at a time close to the 15th anniversary of September 11 2001; a desire to obtain international recognition for his offending; the violent, ferocious and inhumane nature of the attack on the victim; the violent ideology that motivated the conduct; and, the inappropriateness of drawing a comparison between the offence for which the applicant was to be sentenced and an offence of attempted murder.

19. [51]

    His Honour also took into account the need to ensure that all members of the community had a right to enjoy fundamental freedoms, which included the right to walk to a local shopping mall without the fear of being subjected to an unprovoked and life-threatening attack solely on the basis of an image on a T-shirt that was, on any view, innocuous.

20. [52]

    Further, his Honour noted that the mere fact that one can envisage offending of greater gravity does not result in a finding that the present offending was not serious. As earlier stated, in this appeal the applicant does not take issue with the learned sentencing judge’s assessment of objective seriousness. [21]

21. [53]

    In dealing with the applicant’s subjective case, his Honour dealt with contrition and the prospects of rehabilitation. His Honour referred to the Affidavit of the offender of 20 May 2019 and his description, in that Affidavit, of his conduct in perpetrating the offence as “evil”. [22]

22. [54]

    The applicant expressed remorse for the attack on the victim and maintained that he was now a different person who had changed his thinking. His Honour referred to the view of the applicant at the time of the offending that Islamic State was an accurate description of Islam but that he now realised the error of his ways. This realisation was, according to the applicant, a result of discussions with religious scholars and advisers.

23. [55]

    In the course of his remarks on sentence, the learned sentencing judge dealt with the applicant’s current beliefs and the categorisation of his past beliefs. His Honour said:

24. [56]

    His Honour described the applicant’s explanation for the commencement of his asserted de-radicalisation as “largely, if not completely, lacking in cogency.” [24] This comment was made, having regard to the fact that the applicant suffered from a mental illness.

25. [57]

    The learned sentencing judge made clear that in his view the prospects of rehabilitation of the applicant were dependent upon a complete and unconditional abandonment of the extremist ideology and the sentencing judge was unable to accept that the applicant had reached the point where he was substantially rehabilitated. The sentencing judge did not accept the evidence of the applicant as to his rehabilitation and the total abandonment of his extremist views.

26. [58]

    His Honour referred, in particular, to the applicant lying to medical practitioners, which the applicant admitted in the course of cross-examination during the sentence proceedings. His Honour noted that the conduct in lying to the medical practitioners was significant because it was not only a matter of lying to be portrayed more favourably, it was being untruthful in the hope that the reports would allow him to be found not guilty on the grounds of mental illness. In so doing, the applicant behaved manipulatively.

27. [59]

    Lastly, his Honour dealt with deterrence, concluding that personal or specific deterrence was a relevant factor and general deterrence remained relevant. Given the grounds of appeal, it is appropriate to refer to the fact that his Honour dealt with general deterrence over a number of paragraphs and pages.

28. [60]

    After referring to the submissions of counsel, his Honour referred to the well-known passage in De La Rosa [25] in which McClellan CJ at CL summarised the following principles, not intended to be exhaustive, regarding the relevance of mental illness on sentence:

29. [61]

    The learned sentencing judge then concluded with the following passage:

30. [62]

    After referring to the need to ensure that the applicant is adequately punished, [26] his Honour set out the orders to be imposed, dating the sentence from the date of the applicant’s arrest on 10 September 2016. As already stated, the sentence imposed was a head sentence of 36 years, which will expire on 9 September 2052, including a non-parole period of 27 years, rendering the applicant first eligible for release on parole on 10 September 2043.

Summary of the Applicant’s Submissions

1. [63]

   Essentially, the applicant dealt with sub grounds 1(i) and 1(ii) together. The applicant stressed that the sentencing proceedings with which his Honour was dealing were such that the assessment of the applicant’s moral culpability for his offending was an important, if not essential, aspect of the sentencing task and, on the submission of the applicant, was not undertaken.

2. [64]

   The applicant conceded that his Honour did take the applicant’s mental illness into account, at least on the issue of the suitability of the applicant as a vehicle for general deterrence. However, the applicant submitted that his Honour did not take account of the mental illness to any “meaningful or sufficient” degree. It is also not clear, on the submission of the applicant, whether the sentencing judge was dealing with the mental illness at the time of the sentencing or the time of the offence.

3. [65]

   The applicant submitted that there was no other consideration of the reduced functioning of the applicant from the end of 2012 to the time of his offending and the effect on the sentence to be imposed. Nevertheless, his Honour did note the Crown submission that the offending had a connection with the applicant’s failure to take his psychiatric medication in the year prior to the offending. In that regard, on the submission of the applicant, his Honour noted that this had a potential negative significance on the applicant’s prospects of rehabilitation.

4. [66]

   The applicant, in his submissions, relied on the passage at [114] of the Remarks on Sentence, recited above, regarding the absence of a causal connection between the mental illness and the applicant’s offending. The applicant submitted, on appeal, that a causal link between mental impairment and the offending was not a prerequisite to consideration of the offender’s mental health background and its impact on sentence.

5. [67]

   One of the difficulties associated with the foregoing submission, to which counsel for the applicant was directed during the course of oral submissions, is that, before the sentencing judge, both the Crown and counsel for the applicant submitted that the mental illness was not causative of the offending. The applicant seeks to overcome the effect of the unanimous submissions of counsel before the sentencing judge by differentiating between a mental illness that is “causative” of the offending, directly, and one which affects moral culpability. The latter, inferentially, reduces moral culpability, by materially contributing to the applicant’s state of mind or the applicant’s decision-making processes, without being exculpatory or directly causative of the offending. [27]

6. [68]

   As conceded by counsel during the course of the appeal, leaving aside for present purposes that his Honour may have been led into error by the submissions of each party on the issue of causation, there has been an erroneous conflation of the circumstance that the jury rejected the mental illness defence, in that it has been treated as conclusively excluding a reduction in moral culpability for the purpose of sentencing. [28]

7. [69]

   On the issue of manifest excess, which is Ground 2 in the appeal, if the Court were to find that there was no identifiable error, then the applicant submits that the learned sentencing judge’s discretion miscarried and the sentence is “unreasonable” or “plainly unjust”. In so doing, the applicant accepts that there is authority for the proposition that this type of offending requires condign punishment and carries severe penalties; and that there is reduced weight given to subjective circumstances of an offender when sentencing for this offence.

8. [70]

   Nevertheless, the applicant submits that due weight should also still have been given to the mental illness of the applicant as a particular consideration relevant in the sentencing exercise.

9. [71]

   As already commented, the applicant was mentally ill at the time of the offending. Whether or not that mental illness was causative of the offence or was exculpatory, the applicant was suffering from significant symptoms of mental illness during the course of his slide into radicalisation and up to the time of offending.

10. [72]

    These issues were exacerbated by the death of his mother, his disordered thinking as to how to be a proper Muslim, and the applicant’s isolation. Whether the mental illness was schizophrenia or Obsessive Compulsive Disorder, the applicant submits that the illness was severe and was a factor that warranted less weight being given to general deterrence in the circumstances of the case. A difficulty with this last submission is that this aspect was considered, expressly, by the learned sentencing judge.

11. [73]

    The circumstance that the offence is an act of terrorism, on the submission of the applicant, should not undermine the longstanding principles surrounding mental health and its impact on general deterrence. There are authorities indicating that a mental health consideration should be taken into account in terrorism-related offences in an orthodox way. [29]

12. [74]

    The applicant submitted that the range of offending covered by the offence provision is broad. The objective seriousness of the offending here did not involve the actual killing of a person or persons. The conduct was directed towards one individual only and was not a mass large-scale attack. The applicant submitted that the punishment for a terrorist act must still be proportionate to the conduct that is the subject of the offence.

13. [75]

    In relation to that latter submission, the applicant relied upon a comparison to other offending said to be of like kind. If this offence were not to have involved terrorism, it would have been prosecuted as an attempted murder under s 27 of the Crimes Act 1900 (NSW), which carries a maximum sentence of 25 years and a standard non-parole period of 10 years. The applicant submitted that the head sentence imposed upon him obviously exceeds that maximum.

14. [76]

    For the foregoing reasons, the applicant submitted that the Court should conclude that this sentence exceeds the legitimate bounds of the discretionary exercise of the sentencing judge.

Summary of the Respondent’s Submissions

1. [77]

   The Crown submitted that an examination of the learned sentencing judge’s remarks on sentence discloses that his Honour carefully attended to the statutory requirements of the exercise being performed. His Honour, on that submission, applied well-settled principles, including those that have emerged from terrorism cases. In so doing, his Honour fixed a sentence of a severity that was appropriate in all of the circumstances. The Crown submitted that no error has been demonstrated.

2. [78]

   The Crown relied upon the principles recited by the learned sentencing judge, [30] which have been recited above. The principles recited by his Honour are not the subject of criticism or complaint in this appeal.

3. [79]

   As to sub-ground 1(i), the complaint that his Honour failed to take into account the extent and severity of the applicant’s mental health condition, the Crown submitted that the ground needs to be assessed according to the relevant sentencing principles for terrorism offences. In particular, it is necessary to assess the ground in the context of a principle that subjective circumstances and mitigating factors are to be given less weight.

4. [80]

   The Crown submitted that the Remarks on Sentence, as well as the comments during the course of the proceedings on sentence, make evident the careful consideration that his Honour gave to the way in which the applicant’s mental illness should be taken into account in determining the sentence. In that respect, the Crown pointed to a number of the exchanges in the transcript and comments in the Remarks on Sentence [31] to establish that his Honour considered the applicant’s mental illness and took it into account in determining the sentence that his Honour imposed.

5. [81]

   In relation to sub ground 1(ii), the Crown submitted that the factors relevant to assessing the applicants’ moral culpability were:

6. [82]

   The Crown submitted that in the context of the evidence of Prof Greenberg and the overwhelming evidence regarding the applicant’s ideology, the applicant’s mental illness did not explain his offending. Instead, his offending was explained by his ideology and extremist views.

7. [83]

   Nevertheless, the foregoing submission does not deal with the role that the applicant’s mental illness played in the applicant forming those extremist views and adhering to that ideology.

8. [84]

   The Crown relied upon the remarks of his Honour at [79], which described the motivation of the applicant, and which, on the Crown submission, disclosed no error. The Crown submitted that the ground should be rejected. The Crown submitted that it was open to his Honour to take the applicant’s mental illness into account in the manner that he did and, clearly, his Honour was cognisant of the relevant principles and applied them to the facts and circumstances of the case in a careful and discriminating way.

9. [85]

   On the question of manifest excess, which is ground 2 of the appeal, the Crown submission started with the proposition that the sentencing judge found that the offending was above mid-range of objective seriousness. [33] The Crown submitted that this finding was clearly open and relied upon the following factors:

10. [86]

    The Crown submitted that these factors demonstrate that the applicant’s criminality was very high. His conduct, it was submitted, was a very serious example of an offence, which carries a maximum penalty of life imprisonment.

11. [87]

    The Crown submitted that the activity involved a carefully planned terrorist attack and was not an impulsive crime. Rather, it was a series of deliberate and premeditated acts.

12. [88]

    The Crown also submitted that the conduct was not directed only to one individual and relied upon the remarks of the learned sentencing judge in which is Honour found that the attack was “upon the community as a whole” and that “it represented a violation of the most fundamental of democratic rights to which all members of the community are entitled” [35] .

13. [89]

    The Crown submitted that the sentence imposed was open to his Honour, was within range, and was neither unreasonable nor plainly unjust.

14. [90]

    To the foregoing summary, the Court should reiterate that the assessment of objective seriousness was not challenged on this appeal. [36]

Consideration

1. [91]

   In the course of the proceedings below, an issue arose between the parties as to whether the court in sentencing for this offence was entitled to have regard to the Victim Impact Statements of the witnesses. His Honour determined the issue in favour of having regard to the Victim Impact Statements as a result of his construction of s 16AAA of the Crimes Act and s 16A thereof.

2. [92]

   Ordinarily, a witness to an offence would not be categorised as a victim, because the witness is not a target of the offence, either deliberate or otherwise. Nor does the witness suffer damage as a result of the offence, other than damage that may be occasioned by the observation itself.

3. [93]

   I accept that, in certain circumstances, the common law accepts that “nervous shock” can be caused by observing events. [37] That acknowledgment has occurred in the development of negligence and other tortious liability. It is not a development that has generally been applied in the area of crime and, in particular, as to the extension of the class of persons that are victims of a crime.

4. [94]

   Interestingly, in Wicks, supra, the High Court held that in the context of s 30 of the Civil Liability Act 2002 (NSW), the term “victim” was confined to those persons “killed, injured or put in peril”. That phrase is, itself, derived from s 30(1) of the Civil Liability Act and may, therefore, not be a general confinement.

5. [95]

   It may eventually be necessary to determine whether cohesion demands that victims of crime include those persons contemplated as suffering damage, or who are in a class that is proximate to the crime and are reasonably foreseeable as suffering damage as a result of the offender’s conduct. But this is not the case in which such general principle needs discussing. The judgment of his Honour is not concerned with victims of crime generally.

6. [96]

   However, in the case of a terrorism offence, it is an element, or is one of the possible elements, of the offence, that the offence is committed with the intention of “intimidating the public or a section of the public”, or of one or other of the governments of Australia or elsewhere. As a consequence, unlike many offences concerned with the physical result of conduct, the victims in a terrorist attack may well be the members of the public, or a section of the public, whom the act was intended to intimidate. This would include those persons who witness the attack or its aftermath.

7. [97]

   No party complains in this appeal about his Honour’s approach. The foregoing is not to be seen as a criticism of his Honour’s use of the Victim Impact Statements to which these reasons have earlier referred. It is intended to be a prelude to the comparison between murder, attempted murder and a terrorist offence.

8. [98]

   First, the legislature prescribes the relative seriousness of offences of different kinds by fixing a maximum punishment. There may be reasonable views that would differ from that fixed by the legislature, but it is the legislature that fixes the maximum sentence and, in so doing, points to the relative seriousness, at least of those offences of that kind that warrant the maximum sentence.

9. [99]

   The applicant seeks to compare the terrorist offence with that of attempted murder. Attempted murder, being a common law offence and the punishment for it fixed by the State legislature, has, in New South Wales, a maximum penalty of 25 years’ imprisonment.

10. [100]

    Most interestingly, ordinarily, an attempt to commit an offence carries a maximum penalty equal to the maximum penalty fixed for the completed offence. [38]

11. [101]

    Thus, an attempted robbery carries the same maximum sentence as a robbery. In the case of attempted murder, the legislature has differentiated the penalty for attempt and the penalty for the completed offence. Of itself, this may create anomalies.

12. [102]

    For example, assume a murder that would otherwise carry the maximum sentence and assume that the murder is unsuccessful, but as a consequence the victim is left alive, but with severe brain damage preventing any and all executive functioning and without use of any bodily function below the neck. The crime would be attempted murder.

13. [103]

    Many would suggest that the damage is at least as great, and possibly greater, than if the attempt at murder had been successful. This would be particularly so if, apart from the disabilities to which I have referred, the victim was in constant pain.

14. [104]

    Yet, the maximum sentence for murder is life imprisonment and the maximum sentence for attempted murder is 25 years’ imprisonment. It is that latter maximum to which the applicant points in submitting that the sentence imposed is manifestly excessive.

15. [105]

    As earlier stated, the applicant points to the offence being manifestly excessive because, if the applicant were to have been charged with attempted murder, the maximum penalty that could have been imposed would have been 25 years’ imprisonment. Of course, the applicant was not charged with attempted murder.

16. [106]

    Such a submission loses sight of the offence. Murder is the most severe form of assault. An assault can occur without damage (common assault); it can occur with some injury (assault occasioning actual bodily harm); or it can occur in circumstances where it causes really serious injury (assault occasioning grievous bodily harm).

17. [107]

    Over and above the foregoing, assault can occur with different intents. The most serious intent is an intent to cause grievous bodily harm (or to kill). Thus, short of murder, a person who causes grievous bodily harm with intent so to do, often referred to as maliciously inflict grievous bodily harm, has committed the worst category of assaults, short of murder or manslaughter.

18. [108]

    Murder is an “assault” occasioning grievous bodily harm with an intent to cause grievous bodily harm or to kill (leaving aside reckless indifference to human life). Additionally, murder requires the death of the victim.

19. [109]

    Terrorism, while ultimately concerned with the risk to human life, is fundamentally concerned with the threat to civil society by those persons advancing a political, religious, or ideological agenda who intend to intimidate governments or the public. The comparison with attempted murder, in those circumstances, where the terrorist act, which sought to kill, was unsuccessful, is misplaced. His Honour rejected the analogy and, in my opinion, his Honour was correct in so doing.

20. [110]

    None of the foregoing suggests that this attack should be treated as seriously as if the victim, Mr Greenhalgh, was killed. But that is a different issue. That aspect goes to the objective seriousness of the offence within the range of conduct covered by the offence.

21. [111]

    It is fair to say that the range of conduct that can occur within this offence is extremely broad. Leaving aside advocacy, protest, dissent or industrial action not intended to cause serious harm and the like, it covers action that causes serious physical harm to one or more persons; serious damage to property; death; endangerment of people’s lives; serious risks to health and safety of the public; and, electronic sabotage.

22. [112]

    Moreover, terrorism covers the action and the threat of action, and can range from merely preparatory acts to an attack such as that which occurred in the Mosque in New Zealand, or on September 11; or one which brings down the defence network or financial system.

23. [113]

    As stated in the foregoing reasons, more than once already, the learned sentencing judge assessed the objective seriousness of the offence as above mid-range in seriousness. That assessment is not the subject of challenge. It is to that assessment that one must look in determining whether the sentence imposed is manifestly excessive and, in so doing, look at the guidepost of the maximum sentence and the range of conduct that may give rise to an offence of this kind.

24. [114]

    The foregoing analysis does not take account of the subjective circumstances of the applicant and the submission that moral culpability was lessened by the psychiatric conditions suffered by the applicant. The range of sentences available to a sentencing judge must take account of both the objective seriousness and the subjective circumstances.

25. [115]

    As the applicant concedes, the learned sentencing judge dealt with the applicant’s mental health condition. While a submission was put to his Honour that the applicant’s moral culpability was lessened by his mental health condition, this was done in a context where the submissions were to the effect that the mental health condition was not causative of the offending, and there was no suggestion that the applicant’s counsel was differentiating between direct cause and indirect cause.

26. [116]

    As a consequence, the submission put on appeal is in a very different context to that put to his Honour. The foregoing is not intended to suggest that the submission is not open. Only that, in those circumstances, an express reference to the differentiation between indirect and direct cause could not be said to be error by the sentencing judge.

27. [117]

    As is clear from the passages of his Honour’s remarks on sentence already recited, his Honour expressly dealt with the effect of the mental health condition, even though it was not in any way causally connected to the offending, on the onerousness of the custodial conditions. His Honour found that the custodial conditions would be more onerous than would otherwise be the case. As a consequence, his Honour expressly dealt with that effect of mental health and took it into account in fixing the sentence.

28. [118]

    Further, his Honour’s comment that “general deterrence remains relevant” [39] is a comment as to the effect of the mental health considerations that his Honour was expressly taking into account.

29. [119]

    The submission of the applicant in relation to Ground 1 of the appeal presupposes that the mental health condition would ameliorate the severity of the sentence by lessening moral culpability. The submission, which I accept, that the circumstances of a mental health condition should be taken into account in an orthodox manner in sentencing for terrorism offences, does not resolve whether the mental health condition would ameliorate severity or increase it.

30. [120]

    Even the summary, cited by the learned sentencing judge and on which the applicant relies, of McClellan CJ at CL in DPP (Cth) v De La Rosa, [40] refers to the effect on moral culpability in circumstances where the person’s mental health contributes to the commission of the offence in a material way. The effect is to decrease the denunciation factor in relation to any particular sentence. Here, the mental health condition did not contribute to the commission of the offence in a material way.

31. [121]

    His Honour took account of the effect of the mental health condition on general deterrence and on the more onerous conditions of custody, as earlier stated. His Honour also dealt expressly with specific deterrence.

32. [122]

    That with which the applicant’s submission fails to grapple is the last dot point in the earlier recited summary of McClellan CJ at CL. The context of this terrorism offence and the subjective circumstances of the applicant need reiterating.

33. [123]

    Whether the mental health condition suffered by the applicant was schizophrenia or Obsessive Compulsive Disorder, or some other psychiatric condition, it is said that the psychiatric condition was a factor in his radicalisation and, as a consequence, the formation of the extremist views that were the basis for the offending in question. Moreover, the applicant’s failure to medicate, it is said, is a factor to which the sentencing judge ought to have had consideration.

34. [124]

    In my view, a proper understanding of the whole of the remarks on sentence discloses that his Honour did have regard to those factors. I have already recited part of [98] of his Honour’s remarks on sentence. His Honour followed that comment with the following remarks:

35. [125]

    His Honour took the view that the applicant adhered to an extremist view, which he developed over time. Further, the applicant held that view deeply; it was ingrained.

36. [126]

    His Honour took the view that the applicant was disingenuous in lying to medical practitioners for the purpose of avoiding responsibility and obtaining an acquittal. His Honour also considered that the applicant was manipulative. His Honour found, as a factor which is not the subject of complaint on appeal, that the applicant still held extremist views, if not to the same degree then at least to some degree.

37. [127]

    The person with whom the learned sentencing judge was dealing and for whom it was necessary for the sentencing judge to fix a sentence was a person still holding extremist views; suffering from a mental health condition which caused him, on the submission of the applicant, to hold those views; who, from time-to-time, failed to medicate, thereby exacerbating the mental condition and the extremist views; and who, as a consequence of those extremist views, believed it was necessary to kill another, and on the evidence before the court, many others, and, if necessary, himself for the purpose of fulfilling those extremist views.

38. [128]

    If any circumstance ever warranted a mental health condition being treated in accordance with the last dot point in the summary in [177] of De La Rosa, it is those circumstances. [42]

39. [129]

    In circumstances where the applicant, on the findings of his Honour, still held extremist views; was manipulative in the manner in which he approached authority and his offending; and the extremist views motivated offending of this kind, then the presence of that mental illness rendered protection of society an extremely important aspect. In terrorism offences, protection of society is, generally, an extremely important factor. Where the subjective circumstances of the applicant apply, it becomes even more so, and the protection of society factor would be exacerbated even further.

40. [130]

    In my view, the failure of the applicant to grapple with the effect of the mental illness on protection of society and the continuing extremist views of the applicant is fatal to the success of Ground 1 of the appeal.

41. [131]

    I would dismiss each of Grounds 1 and 2 and I would dismiss the appeal.

42. [132]

    For the foregoing reasons, I propose that the Court make the following orders:

    1. (1)

       Leave to appeal be granted;

    2. (2)

       Appeal be dismissed.

43. [133]

    WILSON J: I also agree with Rothman J that the two grounds advanced by the applicant, and the application itself, must be dismissed. I otherwise agree with Beech-Jones CJ at CL.