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Commonwealth Sentencing Database Sentencing Terrorism

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In July 2019, the Commonwealth Sentencing Database published a new page, Sentencing Terrorism Offenders. This page is the first of its kind in Australia.  No other comprehensive commentary on the sentencing of terrorism offenders is publicly available.

With terrorism a growing threat in Australia, courts are likely to continue to see an increase in the number of terrorism offenders to be sentenced.  The number of terrorism offenders sentenced has grown since 2001, and has increased significantly since 2016.  2019 has seen the first offenders sentenced in Australia for engaging in a terrorist act offence. Three cases involving six offenders were handed down, all of whom acted in support of Islamic State.[1] The longest sentence was imposed in R v Shoma [2019] VSC 367 where the offender was sentenced to 42 years’ imprisonment with a 31 year and 6 month non-parole period.

Sentencing courts have observed that the unique nature of the threat of terrorism requires particular consideration to be paid to certain purposes of sentencing. For example, as section 2 of the commentary explains, punishment, denunciation of the offending, community protection and deterrence are to be paid particular regard when sentencing for terrorism offences. Factors that may serve to mitigate a sentence, such as contrition, rehabilitation and an offender’s youth, have been considered to hold less weight. Commentary specific to terrorism offences will be particularly useful to sentencing courts or judges who are unfamiliar with this area.

The unique nature of terrorism offences has resulted in sentencing courts engaging with sentencing factors in new ways. For example, as explained in sub-section 3.2, preparatory terrorism offences criminalise conduct done in preparation for an intended terrorist act, prior to any inchoate criminal liability arising. Sentencing courts have taken into account legislative intent and have considered broadly the circumstances of the offence in order to assess the objective seriousness of the offence and moral culpability of the offender.

The sentencing terrorism offenders commentary is divided into six sections:

Section 1 lists examples of four broad types of federal terrorism offences found in the Commonwealth Criminal Code.

Section 2 outlines particular common law considerations underpinning the purposes of sentencing for terrorism offences.

Section 3 provides commentary on how courts assess the objective seriousness of terrorism offences, within the framework of different types of terrorism offences.

Section 4 provides commentary on how courts consider particular mitigating factors in the context of terrorism offenders.

Section 5 provides commentary on how courts have sentenced children for terrorism offences, and the interaction between state and federal statutory regimes.

Section 6 examines various legislative provisions which may impact how the court is to determine the sentence to be imposed

This page is the first of its kind for the CSD, which usually provides commentary on particular federal sentencing factors.  It is focused on particular types of offences, namely terrorism offences, and their interaction with federal sentencing principles. We hope you will find it useful.

Questions or suggestions regarding the page may be directed to its lead author Sophie Hewitt at [email protected]. Sophie is currently undertaking a law honours project analysing the sentencing of preparatory terrorism offences in Australia, under the supervision of Dr Wendy Kukulies-Smith.

[1] R v Shoma [2019] VSC 367; R v Khan (No 11) [2019] NSWSC 594; R v Mohamed, Chaarani & Moukhaiber [2019] VSC 498: see case summaries.