In this Case Study, we present a summary of ongoing work our firm is involved in representing a client in the High Court of Australia, in a case which could lay an important precedent when it comes to sentencing young persons for terrorism and other commonwealth offences.

Area of Law: Sentencing Procedure and Statutory Interpretation

IM V The Queen HCA S124 of 2020

Birchgrove Legal has launched fresh High Court Action on behalf of the youngest person to ever be convicted of and sentenced for a terrorism related offence in Australia.

IM was 14 years and 11 weeks old at the time of offending and the focus of our case is on various areas of Sentencing Procedure and the interpretation of legislation relevant to the sentencing of offenders.

The case could lay an important precedent when sentencing young persons for terrorism and other commonwealth offences.

Legal Analysis

The questions currently before the High Court are:

  1. In the determination of the objective seriousness of a person’s offending in conspiracy offences, whether reference to conduct for which they have already been convicted ought to be taken into account or does this constitute an impermissible double punishment;
  2. The proper construction and scope of Section 20C of the Crimes Act 1914 (Cth)

Double Punishment

The Court in The Queen v Hoar recognised that there is “… a practice, if not a rule of law, that a person would not be twice punished for what is substantially the same act… It has long been established that prosecutions for conspiracy and for a substantive offence ought not to result in a duplication of penalty.

However, in the matter before the High Court, it is contended that the Court of Criminal Appeal have erred by taking into account offences which had already been acknowledged by the Trial Judge as part of the conspiracy in sentencing our client. We posit that such actions constitute a double punishment and have essentially resulted in a duplication of penalty. We look to the High Court for clarification on this issue.

Section 20C of the Commonwealth Act

In the case of children or young people who have been charged with or convicted of an offence against a law of the Commonwealth, section 20C of the Crimes Act 1914 (NSW) confers a discretion on the courts to try, punish or otherwise deal with them as if the offence were an offence against a law of the State or Territory.

The application of above had been applied with respect to our client, insofar as it provided the Trial Judge with sentence options. However, we contend that the wording of the section offers no limitation which suggest that it is confined solely to making available additional sentencing options and has been incorrectly applied in the NSW Court of Criminal Appeal. It is our position that the  proper construction of the legislation wording of the legislation allows for other aspects if NSW state law to apply, namely the non-parole proportion of a sentence.

Potential Ramifications

The operation of Section 20C of the Commonwealth Act affects all children and young people accused of a Commonwealth offence in every State or Territory, and there has been limited appellate consideration on its effect. Clarity on this issue is paramount for the just sentencing of youth offenders charged with Commonwealth offences and consistent application of the provision.

Further, the issue of double punishment in conspiracy offences is one which has drawn mixed judicial commentary, and in order to minimize unjustly extended sentences High Court commentary is required on this issue.

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