Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Khazaal v R (No 2) [2013] NSWCCA 140
• Hearing dates: Remittal of proceedings from High Court dealt with on the papers; submissions closed 20 May 2013
• Decision date: 13 June 2013
• Before: McClellan JA at [1]; Hall J at [6]; McCallum J at [9]

Decision

Leave to appeal granted;

appeal against sentence dismissed.

• Catchwords: CRIMINAL LAW - leave to appeal against sentence - objective seriousness - foreign convictions as evidence of applicant's character - deterrence - onerous bail conditions - manifest excess - power to adjust sentence to reflect period on bail pending Crown appeal where no error of law established
• Legislation Cited: Crimes Act 1914 (Cth); Crimes (Sentencing Procedure) Act 1999; Criminal Appeal Act 1912; Criminal Code Act 1995 (Cth); Security Legislation Amendment (Terrorism) Act 2002 (Cth)
• Cases Cited: Anderson v R [2010] NSWCCA 130; (2010) 202 A Crim R 68; Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1; JM v R [2008] NSWCCA 254; Khazaal v R (Supreme Court of New South Wales, Adams J, 7 July 2011, unreported); Khazaal v R [2011] NSWCCA 129; (2011) 265 FLR 276; Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509; Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470; Marotta v R [1999] HCA 4; (1999) 160 ALR 525; Rahman v R [2008] EWCA Crim 1465; R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417; R v Adel Yahya (Central Criminal Court, 5 November 2007, unreported); R v Baker [2000] NSWCCA 85; R v Boughen; R v Cameron [2012] NSWCCA 17; (2012) 215 A Crim R 476; R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 45; R v Goodwin (1990) 51 A Crim R 328; R v Hall [2004] NSWCCA 127; R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7; R v Khazaal [2012] HCA 26; (2012) 289 ALR 586; R v Lodhi [2006] NSWSC 691; (2006) 199 FLR 364; United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165; Whan v McConaghy [1984] HCA 22; (1984) 153 CLR 631
• Category: Sentence
• Parties: Belal Saadallah Khazaal (applicant); Regina (respondent)
• Representation: Counsel: P Lange (applicant); P Neil SC, S Callan (respondent); Solicitors: Murphy's Lawyers (applicant); Commonwealth Director of Public Prosecutions (respondent)
• File Number(s): 2005/2994
• Publication restriction: None

Decision under appeal

• Citation: R v Khazaal [2009] NSWSC 105
• Date of Decision: 2009-09-25 00:00:00
• Before: Latham J
• File Number(s): 2005/2994

Judgment

1 McCLELLAN JA: Following the remittal of the applicant's sentence appeal by the High Court to this Court, I have reconsidered my earlier judgment having regard to the further submissions of the parties. My opinion has not altered. Although I would grant leave to appeal, the appeal should be dismissed.

2 As McCallum J records, the Crown asked this Court to consider whether, having regard to the fact that the applicant was for a time released on bail, it was possible to reconsider his sentence so that he serves the whole of the non-parole period imposed by the primary judge.

3 This Court's jurisdiction is confined by the terms of the remitter order. In R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 45, a five-judge panel considered the scope of this Court's jurisdiction in cases that the High Court remits to it for further consideration. Allsop P and Johnson J, with whom Spigelman CJ and Kirby and Howie JJ agreed, said at [27]:

It is undoubted that the scope of the authority of a court to which a matter is remitted under s 37 is confined by the terms of the remitter and that such court can make no order nor undertake any task inconsistent with the remitter order: Peacock v DM Osborne & Co [1907] HCA 42; 4 CLR 1564 at 1567-1568; R v Weiss (No 2) [2006] VSCA 161; 164 A Crim R 454 at 472 [99]-[102].

4 Applying that principle, this Court's jurisdiction under the remitter extends only to the determination of the offender's application for leave to appeal against his sentence. Despite whatever other course might better reflect justice in this situation, as to which I make no comment, this Court cannot make an order of the kind sought by the Crown.

5 Even if the remitter did not preclude the Court from increasing the applicant's sentence to account for the time he has spent at liberty, the Court has no statutory power to make such an order. I agree with McCallum J's reasons for so finding.

6 HALL J: I agree with the reasons of both McClellan JA and McCallum J in relation to the grounds relied upon in support of the application for leave to appeal against sentence.

7 I agree with the reasons and conclusions expressed by McCallum J at [74] to [84] of her Honour's judgment.

8 I agree with the orders proposed by McClellan JA and McCallum J that leave be granted and the appeal be dismissed.

9 McCALLUM J: Belal Saadallah Khazaal seeks leave to appeal against the sentence imposed upon him in the Supreme Court on 25 September 2009 after he was found guilty by a jury of an offence of making a document connected with assistance in a terrorist act knowing of that connection, contrary to s 101.5(1) of the Criminal Code Act 1995 (Cth). The jury was unable to agree as to a further charge of attempting to incite an act of terrorism contrary to ss 11.1, 11.4 and 101.1 of the Code.

10 The maximum sentence for the offence of which the applicant was found guilty is imprisonment for 15 years. The trial judge sentenced the applicant to a term of imprisonment of 12 years with a non-parole period of 9 years.

Circumstances in which the present application is to be determined

11 The application for leave to appeal against that sentence was brought together with an appeal against conviction, which was ultimately unsuccessful. The conviction was quashed by this Court (by majority) and a new trial ordered: Khazaal v R [2011] NSWCCA 129; (2011) 265 FLR 276. In that decision, Hall J and I upheld a ground of appeal that the trial judge should have left to the jury a defence under s 101.5(5) of the Code (that the making of the document was not intended to facilitate assistance in a terrorist act), as to which the offender bore an evidential burden: per Hall J at [407] to [442]; in my judgment at [470] to [489]. Having so held, neither Hall J nor I dealt with the appeal against sentence. McClellan JA (as his Honour now is) would have dismissed the ground on which the appeal was allowed (at [125] to [129]) and accordingly addressed the sentence appeal. His Honour proposed that leave to appeal against sentence be granted but that the appeal be dismissed, for the reasons stated at [137] to [174] of the judgment.

12 The decision upholding the conviction appeal was overturned by the High Court: R v Khazaal [2012] HCA 26; (2012) 289 ALR 586. The High Court set aside the orders of this Court and, in lieu thereof, dismissed the appeal against conviction and remitted the matter to this Court for consideration and determination of the appeal against sentence: at [95] per Gummow, Crennan and Bell JJ; French CJ agreeing at [37]; Heydon J agreeing at [120].

13 For a period between the decision of this Court quashing the conviction and the determination of the appeal to the High Court, the applicant was at liberty on conditional bail, initially pending the new trial ordered by this Court and, later, pending the determination of the Crown's appeal. Following the remittal of the proceedings by the High Court, the Crown filed written submissions as to the effect on sentence of that bail. The Crown contended that, "whatever the outcome of the sentence appeal", the non-parole period fixed by Latham J must be adjusted to reflect the time spent on bail (a total period of 399 days).

14 The applicant then filed written submissions addressing two matters. They were, first, a response to the Crown's contention as to the relevance of the period spent on bail and, secondly, the effect of fresh evidence sought to be relied upon by the applicant.

15 The Crown responded to those submissions in writing. Neither party sought a further oral hearing.

Determination

16 For the following reasons, I agree with the conclusion reached by McClellan JA in the earlier judgment of this Court that the original grounds for the appeal against sentence should be rejected: at [137] to [174] of the earlier judgment. I have also concluded that the applicant's additional submissions made following the remittal by the High Court should be rejected. Accordingly, leaving aside the Crown's request to have the sentence passed by Latham J varied to reflect the period spent on bail, I would dispose of the present application by ordering that leave to appeal be granted but that the appeal be dismissed.

17 As to the Crown's request that the sentence passed by Latham J be varied to reflect the period spent on bail, I have concluded that, although it may be anomalous, this Court has no power to make an order of the kind sought by the Crown and, further, that by operation of law the applicant's sentence runs from the date ordered by Latham J.

18 Since preparing this judgment, I have seen the additional remarks of McClellan JA at [3] to [4] above. I agree with his Honour that, in accordance with the terms of the remittal of the proceedings by the High Court, the authority of this Court is confined to determining the offender's application for leave to appeal against his sentence.

Reasons for rejecting appeal against sentence

19 The facts are set out at length in the earlier judgment of this Court. Briefly, the charges related to the applicant's compilation of a book in Arabic called (as translated) "Provisions on the Rules of Jihad: short judicial rulings and organisational instructions for fighters and Mujahideen against infidels". The book was compiled from various articles downloaded from the Internet, which were selected by the applicant and edited with some additional commentary of his own. The book included a dedication and an introduction by the applicant. It opened by defining Jihad to mean "fighting the infidels to make God's word supreme". It included a chapter called "Reasons for Assassination", which was described as having been copied from a message by an "esteemed brother" in which "he motivates Mujahideen to revive the ritual of assassination". The chapter discusses the religious teachings as to the permissibility of killing a person who insults the prophet. It also discusses the characteristics of "modern warfare against the infidels", important characteristics of "the assassination team", ways and means of assassinating and the identities of targets that should be assassinated (including the order in which they should be assassinated).

20 The applicant submitted the book for publication on an Internet site which, according to an expert witness at the trial (Mr Kohlmann), enjoyed an unusual level of endorsement by al-Qaeda (AB143).

21 The Crown case at the trial was that the book advanced religious or ideological justifications for violent struggle and provided a practical guide to achieving martyrdom and destroying the opponents of Islam. The jury evidently accepted that case.

22 The trial judge found that the offence was not far removed from the worst category of an offence under s 101.5(1) and that the objective gravity of the offence called for a sentence towards the top of the range as indicated by the maximum penalty (ROS at [21]). Turning to the applicant's subjective circumstances, her Honour rejected the proposition that the applicant's depression had contributed to the commission of the offence; rejected a submission that he should be regarded as a person of prior good character and found that his prospects of rehabilitation remained "exceedingly poor", indicating the need for a strong element of personal deterrence.

Ground 1

23 The first ground of appeal is:

Her Honour erred in concluding that the objective seriousness of the offence was "not far removed from the worst category of an offence under s 101.5(1) of the Code".

24 McClellan JA addressed that ground at [137] to [151] of this Court's earlier judgment. I agree with his Honour's reasons for rejecting that ground and would add the following additional remarks.

25 Ground 1 relied, in part, on the fact that the jury was unable to reach a verdict as to count 2 on the indictment. That was a count of incitement, which alleged that the applicant had attempted to urge the commission of terrorist acts by others. It was based on the same evidence as count 1, namely, the compilation and publication of the book.

26 The burden of the applicant's submission was that, in light of the jury's failure to agree as to count 2, he had to be sentenced on the basis that he did not intend, by making and publishing the book, to urge the commission of any terrorist act and that the objective gravity of the offence for which he was sentenced was accordingly lower than as assessed by the trial judge.

27 In her remarks on sentence, Latham J expressly noted (at ROS [13]) that there was no warrant for a finding beyond reasonable doubt that the offender intended to incite the commission of a terrorist act. The applicant's submissions rest on the untested premise that, absent such intention, an offence under s 101.5(1) is necessarily of considerably lower seriousness than the worst category of that offence. That premise must be tested by considering the terrorism provisions of the Code as a coherent whole.

28 Division 101 of the Code creates a series of offences of cascading seriousness (according to the maximum penalties provided). Sections 101.1 and 101.6 create the most serious offences, being the offence of engaging in a terrorist act (s 101.1) and the offence of doing any act in preparation for, or planning, a terrorist act (s 101.6). Each of those offences carries a maximum penalty of imprisonment for life.

29 Sections 101.2 to 101.5 criminalise acts which may be seen as falling within the next ripple of seriousness, being acts "connected with preparation for, the engagement of a person in, or assistance in a terrorist act". A variety of specific offences is created by those provisions but there is a common thread, namely that the criminalised conduct is "connected with" aspects of terrorist acts. The seriousness of the offences varies according not only to the state of mind with which the offence was committed (either knowledge of the connection or recklessness as to the existence of the connection, which is less serious) but also the nature of the conduct. For example, the provision or receipt of training in connection with a terrorist act knowing of the connection carries a maximum penalty of 25 years imprisonment, while the making of a document in connection with a terrorist act knowing of the connection carries a maximum penalty of 15 years imprisonment. Correspondingly, the provision or receipt of training in connection with a terrorist act reckless as to the existence of the connection carries a maximum penalty of 15 years imprisonment, while the making of a document in connection with a terrorist act reckless as to the existence of the connection carries a maximum penalty of 10 years imprisonment.

30 Separately, s 11.4 of the Code creates the offence of incitement, which consists in urging the commission of an offence. It is an element of the offence of incitement that the person intend that the offence incited be committed. Nonetheless, it is clear from the relevant penalties that incitement is less serious than the direct commission of the corresponding offence. The penalties for incitement under s 11.4 are as follows:

Penalty:

(a) if the offence incited is punishable by life imprisonment--imprisonment for 10 years; or

(b) if the offence incited is punishable by imprisonment for 14 years or more, but is not punishable by life imprisonment--imprisonment for 7 years; or

(c) if the offence incited is punishable by imprisonment for 10 years or more, but is not punishable by imprisonment for 14 years or more--imprisonment for 5 years; or

(d) if the offence is otherwise punishable by imprisonment--imprisonment for 3 years or for the maximum term of imprisonment for the offence incited, whichever is the lesser; or

(e) if the offence incited is not punishable by imprisonment--the number of penalty units equal to the maximum number of penalty units applicable to the offence incited.

31 Thus the Code expressly provides that the offence of urging the commission of an act of terrorism intending that offence to be committed is less serious than the offence of making a document connected with assistance in a terrorist act knowing of that connection. So much was presumably reflected in the order in which the two counts against the applicant were presented on the indictment.

32 That analysis reinforces my view that the trial judge was correct not to regard the absence of intention to incite a terrorist act as a factor obviating a finding that the offence of which the applicant was found guilty was close to the worst case of that offence. The seriousness of the offences created by ss 101.2 to 101.5 lies in their being acts "connected with" terrorist acts, as opposed to the urging of others to commit such acts, which Parliament has deemed to be less serious. The important consideration for the trial judge so far as the offender's state of mind was concerned was his knowledge of the connection.

33 The trial judge's characterisation of the objective seriousness of the offence as "not far removed from the worst category of an offence under s 101.5(1)" was an evaluative judgment of the gravity of the offending against a hypothesised range of the kinds of documents connected with assistance in a terrorist act that might be made by a person knowing of that connection. The document made by the applicant openly condoned the assassination of infidels; provided the religious or moral justification for such killings; provided some detail as to the ways and means of carrying out such killings and was posted on a website endorsed by al-Qaeda. I am not satisfied that the trial judge's characterisation of the seriousness of the offending was not rationally open.

Ground 2

34 Ground 2 is:

Her Honour erred in concluding that the appellant could not be regarded as a person of prior good character in light of various foreign convictions, even though these were obtained in violation of the principle of procedural fairness.

35 McClellan JA addressed that ground at [152] to [161] of this Court's earlier judgment. I agree with his Honour's reasons for rejecting that ground.

Ground 3

36 Ground 3 is:

Her Honour erred in failing to give proper consideration to the question of deterrence.

37 McClellan JA addressed that ground at [162] to [167] of this Court's earlier judgment. I agree with his Honour's reasons for rejecting that ground and would add the following additional remarks.

38 The applicant relied upon the remarks of Calvert-Smith J in R v Adel Yahya (Central Criminal Court, 5 November 2007, unreported), approved by Lord Phillips CJ of the English Court of Appeal in Rahman v R [2008] EWCA Crim 1465 at [8], to support the contention that the stern sentence imposed by the sentencing judge in the present case may be "counter-productive" and provoke "the commission of further offences" (AS at [98]). The applicant's written submissions stated:

If sentences are imposed which are more severe than the circumstances of the particular case warrant this will be likely to inflame rather than deter extremism.

39 There is an element of question-begging in that submission in that it assumes as a premise the conclusion contended for in this appeal, namely, that the sentence passed in the present case was "more severe than the circumstances of the case warrant".

40 The remarks of Calvert-Smith J in R v Adel Yahya related to a provision of the Terrorism Act 2000 (UK), which carries a maximum penalty of 7 years and under which an accused may be tried summarily. Its utility is limited in the context of the present offence.

41 In R v Lodhi [2006] NSWSC 691; (2006) 199 FLR 364 at [91] to [92], Whealy J highlighted the substantial role played by the principles of denunciation, deterrence and community protection in sentencing for offences under Part 5.3 of the Criminal Code:

The need for substantial sentences to reflect the principles of general deterrence are obvious in relation to crimes of this kind. Such crimes are hard to detect; they are likely to be committed by members of our own community and often by persons of prior good character and favourable background. One has only to consider the tragedy of the London bombings in 2005 to recognise this observation as a sad truism. Moreover, terrorism is an increasing evil in our world and a country like Australia, with its very openness and trusting nature, is likely to fall easy prey to the horrors of terrorist activities.

In those circumstances, the obligation of the Court is to denounce terrorism and voice its stern disapproval of activities such as those contemplated by the offender here. It may be argued that the imposition of stern penalties, in the context of firm denunciatory statements, will not in fact deter those whose religious and political ideologies are extreme and fanatical. The community is owed this protection even if the obstinacy and madness of extreme views may mean that the protection is a fragile or uncertain one. In my view, the Courts must speak firmly and with conviction in matters of this kind. This does not of course mean that general sentencing principles are undervalued or that matters favourable to an offender are to be overlooked. It does mean, however, that in offences of this kind, as I have said, the principles of denunciation and deterrence are to play a substantial role. There is also a need to recognise that the imposition of a substantial sentence may have a personal impact as a deterrent on this offender so that upon his release he will, it is cautiously hoped, be unlikely or less likely to re-offend. In addition to general deterrence, the need to deter this man from future offences is a potent factor in the sentencing process.

42 That approach was upheld on appeal to this Court: Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470.

43 It would be inimical to that approach to accede to a submission that stern sentences may inflame extremism. Further, it would be naïve to think that the imposition of a lesser custodial sentence by the sentencing judge or a reduction of that sentence by this Court would placate extremists.

Ground 4

44 Ground 4 is:

Her Honour erred in giving inadequate weight to the onerous conditions to which the appellant had been subject while on bail.

45 McClellan JA addressed that ground at [168] to [173] of this Court's earlier judgment. I agree with his Honour's reasons for rejecting that ground.

46 A ground which complains of the weight attributed to a matter implicitly acknowledges that the sentencing judge had some regard to it. The difficulty of establishing error in that circumstance was emphasised by Spigelman CJ in R v Baker [2000] NSWCCA 85, where his Honour said (at [11]):

Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstance in which matters of 'weight' will justify intervention by an appellate court are narrowly confined.

47 In her remarks on sentence in the present case, the judge said (ROS at [50]):

Throughout the period of time, the prisoner was subject to bail conditions which were deemed necessary by the Court, having regard to the nature of the charges the prisoner was facing. Whilst those bail conditions restricted the prisoner's movement to the extent that he was required to reside at a notified address, report daily to Campsie police station and travel only in the metropolitan area of Sydney, they do not qualify as quasi-custodial.

48 Although her Honour did not expressly list "the whole raft of other conditions, which restricted the [applicant's freedom of expression and freedom of association during this time [on bail]" (as complained at [101] of the Appellant's Submissions), it does not follow that her Honour did not take those other conditions into account. I am not persuaded that her Honour overlooked that consideration.

Ground 5

49 Ground 5 is that the sentence imposed was manifestly excessive.

50 McClellan JA addressed that ground briefly at [174] of this Court's earlier judgment. I agree with his Honour's conclusion that the sentence imposed was within the permissible range for this offence.

51 The contention that the sentence was manifestly excessive was based on the cumulative force of the submissions made in support of the applicant's four other grounds, with particular emphasis on the challenge in ground 1 to her Honour's characterisation of the objective gravity of the offence. Much of the force of ground 5 is removed by the rejection of ground 1.

52 Although I consider that the sentence imposed was stern, I have not been persuaded that it is outside the permissible range or that her Honour's exercise of discretion miscarried.

Further evidence relating to the activities of the applicant whilst at conditional liberty on bail

53 Additional evidence was sought to be adduced by the applicant as to his conduct whilst at liberty on bail. Subject to what follows, that evidence was relied upon only in the event that this Court was persuaded as to the existence of error and so had to consider re-sentencing the applicant. In the circumstances, it is not necessary to consider the evidence for that purpose.

Relevance of period on bail to the disposal of this application

54 Since being sentenced by the trial judge, the applicant has spent 399 days on conditional bail.

55 The sentencing judge made orders as follows:

Belal Saadalah Khazaal, you are convicted of the offence of making a document connected with assistance in a terrorist act. I sentence you to 12 years imprisonment, to date from 31 August 2008. I fix a non parole period of 9 years. You may be released to parole after 31 August 2017.

56 The sentence accordingly commenced on 31 August 2008. The decision of this Court quashing the conviction was given on 9 June 2011. On 7 July 2011, the applicant was granted conditional bail. At the time bail was granted, the conviction had been quashed. Bail was granted pending a new trial or other disposition of the proceedings: Khazaal v R (Supreme Court of New South Wales, Adams J, 7 July 2011, unreported). However, on 7 October 2011, the Crown was granted special leave to appeal to the High Court. Accordingly, from that date, the applicant was on bail pending the determination of the Crown appeal against the order quashing the conviction.

57 The High Court delivered judgment on 10 August 2012. The orders of the Court were:

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal made on 9 June 2011 and in place thereof dismiss the appeal against conviction on count 1 of the indictment.

3. Remit the matter to the Court of Criminal Appeal for consideration and determination of the appeal against sentence in respect of the conviction on count 1 of the indictment.

58 According to the Crown's written submissions filed 6 September 2012, the applicant's bail was revoked by McClellan JA the same day (10 August 2012). Assuming that is correct, the applicant was in custody from 31 August 2008 to 7 July 2011 and then on conditional bail from 7 July 2011 to 10 August 2012. He was evidently taken back into custody on 10 August 2012 and has remained in custody since that date.

59 The Crown submits that "whatever the outcome of the sentence appeal, the non-parole period of nine years fixed by Latham J on 30 September 2009 to expire on 31 August 2017 must be adjusted so that the date of expiration of the non-parole period is increased by the length of time the offender was on bail".

60 The Crown acknowledged that there is no direct authority on the issue whether such an adjustment ought to be made. It was submitted that the "best guide" is provided by the remarks of Callinan J in Marotta v R [1999] HCA 4; (1999) 160 ALR 525 where, in the context of an application for bail pending appeal, his Honour said (at [9]):

I am of the view that so long as it be clear that the full terms in actual time to be served in prison are served if the appeals are refused, the public interest in the fact of the convictions and their consequences will not be adversely affected, whereas, there is, in my opinion, no public benefit of interest in the incarceration of people who might turn out to have been wrongly convicted according to law [emphasis added].

61 As submitted on behalf of the applicant, those remarks were made obiter dicta, without the benefit of argument on the point and in the different context of an application for bail. Further, the remarks were made in the context of an offender appeal.

62 The applicant opposed any postponement of the date on which he will be eligible for parole. He relied upon the further evidence as to his circumstances since the sentence was imposed for that alternative purpose. The evidence addressed the distress and anxiety caused by the Crown appeal and the inevitable uncertainty as to the fate of that appeal.

63 Whilst the applicant was initially on bail awaiting a new trial following his own successful appeal, from 7 October 2011 his bail continued pending the determination of the Crown's appeal to the High Court. The applicant submitted that the distress and anxiety of that period should be taken into consideration either in the event of re-sentence (which does not arise) or in determining whether to make the mechanical adjustment to the applicant's release date sought by the Crown in order to give effect to the sentence imposed at first instance.

64 The applicant sought to tender two medical reports directed to that issue. In view of the conclusions I have reached, it is not necessary to address that material in these reasons save to observe that, as may be expected, it reveals a degree of real distress caused or contributed to by the course of these proceedings.

65 The submission that such distress and anxiety should now be taken into account by this Court was put in two ways. First, the applicant relied upon decisions of this Court relating to the circumstance where an offender experiences actual anxiety and distress attributable to the possibility of a harsher sentence being imposed following a successful Crown sentence appeal.

66 The applicant acknowledged that a Commonwealth offender is not able to rely upon the principle of double jeopardy, that is, the assumption (without proof) of anxiety and distress brought about by a Crown appeal: see Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638. However, he relied upon the decisions of this Court in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 (at [173] to [175]) and R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7 (at [52]) which hold that the actual anxiety and distress attributable to the possibility of a harsher sentence being imposed following a successful Crown sentence appeal remains a factor to which regard must be had on re-sentence.

67 The applicant further relied upon the following remarks of Simpson J in R v Boughen; R v Cameron [2012] NSWCCA 17; (2012) 215 A Crim R 476 (at [15]):

[I]t remains open to this Court to take into account the circumstances of the respondents since the sentences were imposed, and particularly those circumstances which directly flow from the compliance with the orders made.

68 [As noted in the applicant's submissions, her Honour's remarks at [14] appear to misstate the basis of the decision in Bui but that does not matter for present purposes].

69 The applicant submitted that the distress or anxiety experienced by him whilst at liberty on bail since sentence was passed is due to an increased sense of uncertainty brought about by the Crown's conviction appeal to the High Court. However, the current appeal is not a Crown sentence appeal, nor has any error been identified in the sentence passed at first instance necessitating re-sentencing by this Court. Accordingly, in my view, the applicant's reliance on the Court's decisions in De La Rosa and R v JW is misconceived.

70 The second way in which the applicant's submission was put sought to rely upon his distress and anxiety as "fresh" evidence. The principles to be applied as to the characterisation and permissible use of such evidence were considered by Buddin J in Anderson v R [2010] NSWCCA 130; (2010) 202 A Crim R 68 (at [44] to [46]). In that case, his Honour helpfully summarised the considerations relevant to the admissibility of fresh evidence in R v Goodwin (1990) 51 A Crim R 328 (at 330) in the following terms:

(1) that the additional material sought to be put before this court is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision;

(2) that, although its existence may have been known to the applicant, its significance was not realised by him at the time; and

(3) that its existence was not made known to the applicant's legal advisers at the time of those sentencing proceedings.

71 Fresh evidence has alternatively been characterised as evidence "not available to the accused at the time of trial, actively or constructively": R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63] per Kirby J, Mason P and Levine J agreeing. It is implicit in each of those definitions that the facts sought to be established by the tender of such evidence must pre-date the imposition of sentence although not relied upon, and not reasonably able to have been relied upon, at that time. The evidence here is not fresh evidence, so understood. It relates to facts arising entirely after sentence and, as such, as with the evidence of the applicant's conduct whilst at liberty on bail, cannot be received where no error has been established. The same approach was taken in respect of post-sentence evidence of assistance provided to the authorities in JM v R [2008] NSWCCA 254 (at [25]) and in respect of a medical condition that had developed post-sentence in Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 (at [111] to [112]).

72 Further, such evidence cannot itself admit of error, as explained by Simpson J in Khoury v R at [110] as follows:

...evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account.

73 For those reasons, I have concluded that the so-called fresh evidence should not be admitted. I have further concluded that there is no warrant for reducing the sentence on the grounds of the applicant's undoubted distress and anxiety occasioned by the course of these proceedings.

Reasons for concluding that there is no power to adjust the sentence as sought by the Crown

74 It is convenient to repeat the terms of the sentence passed by Latham J:

Belal Saadalah Khazaal, you are convicted of the offence of making a document connected with assistance in a terrorist act. I sentence you to 12 years imprisonment, to date from 31 August 2008. I fix a non parole period of 9 years. You may be released to parole after 31 August 2017.

75 In fixing the sentence to date from 31 August 2008, her Honour was making allowance for the period spent in custody before the conviction was entered, exercising the court's discretion under s 47(2) of the Crimes (Sentencing Procedure) Act 1999. Section 47 relevantly provides:

(1) A sentence of imprisonment commences:

(a) subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed, or

(b) if the execution of the sentence is stayed under section 80, on the day on which the court decides whether or not to make a home detention order in relation to the sentence.

(2) A court may direct that a sentence of imprisonment:

(a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or

(b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment.

76 In submissions dated 6 September 2012, the Crown asserted that "the non-parole period of nine years fixed by Latham J on 30 September 2009 to expire on 31 August 2017 must be adjusted so that the date of expiration of the non-parole period is increased by the length of time the offender was on bail". The submissions did not articulate the terms of the order sought or the source of any power to make such an order.

77 In the course of preparing these reasons, I formed the view that the Court should have further assistance from the parties as to the source of any power to make an order of the kind sought. The Crown and the applicant provided further written submissions on that issue.

78 The Court drew the parties' attention to the fact that a similar issue was considered by the High Court in Whan v McConaghy [1984] HCA 22; (1984) 153 CLR 631 and by this Court in R v Hall [2004] NSWCCA 127. In Hall, applying Whan, the Court proceeded on the basis that, unless this Court had a statutory power exercisable when dismissing an appeal to vary the commencement date of the sentence imposed at first instance, that sentence continued to run while the applicant was on bail: at [28]. Whilst that was a sentence governed by different legislation, the circumstances are similar in that the sentence imposed by Latham J commenced on a day fixed in accordance with similar legislation (here, s 47 of the Crimes (Sentencing Procedure) Act).

79 An important difference in the present case is that, at the time bail was granted by Adams J, the conviction had been quashed and a new trial ordered. The order for imprisonment was not expressly stayed at any stage: cf United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165, especially at [2] to [6]. The Crown submitted that the quashing of the conviction may nonetheless be taken to have quashed the sentence imposed in consequence of it. Whether or not that is technically correct, it may certainly be accepted that the quashing of the conviction deprived the sentence order of any operative force.

80 It is important, however, to focus on the ultimate point reached by the orders made. As submitted on behalf of the applicant, the effect of the orders of the High Court (in setting aside the order of this Court quashing the conviction) was to revive or reinstate the original order for imprisonment made by Latham J. That order imposed a term of imprisonment of 12 years to date from 31 August 2008.

81 The decision in Hall holds that the existence of any power in this Court to vary the commencement date of a sentence passed by another court must be found in a statute: at [28] per Handley JA; Dowd J agreeing at [50]; Greg James J agreeing at [51] and see his Honour's additional remarks at [53].

82 The Crown has pointed to no statutory power to make an order of the kind sought. Section 43 of the Crimes (Sentencing Procedure) Act applies only where a court has imposed a penalty that is contrary to law or failed to impose a penalty required by law. Section 6(3) of the Criminal Appeal Act 1912 applies only where the court is of the opinion that a more or less severe sentence is warranted in law and should have been passed. The powers in special cases under s 7 of the Criminal Appeal Act do not have any application in the present case. Sections 18 and 25A of the Criminal Appeal Act provide that time during which a person is at liberty on bail pending the determination of that person's appeal (to this Court or to the High Court) does not count as part of the appellant's sentence (s 28A confers power on the court to adjust a sentence in that event). However, there is no equivalent provision addressing Crown appeals. The fact that the case of an offender appeal is expressly addressed in the legislation only reinforces the absence of power in the case of bail pending a new trial where there is a Crown appeal against an order quashing a conviction.

83 The Crown's supplementary submissions do not dispute any of those propositions and do not point to any other source of power to make an order of the kind sought. The Crown simply asserts that imprisonment for the full non-parole period of nine years "can only be achieved" in the manner submitted in the Crown's first written submissions (filed 6 September 2013). The logic of that assertion cannot be assailed, but it is ultimately aspirational. The Crown's submissions provide no answer as to the critical question of power.

84 A court that derives its power exclusively from statute cannot supplant the statute with its own sense of what should be done in order to achieve individual justice in any particular case. Where a court's powers are confined to those conferred by the parliament, the community must look to the parliament, and not the court, to address any anomalous want of power. I am not persuaded that this Court has power to adjust the order of Latham J as requested by the Crown.

85 For those reasons, the orders I propose are that leave to appeal be granted but that the appeal be dismissed.

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Decision last updated: 21 June 2013