Note: Unless otherwise specified, references to sections in this chapter are references to the Criminal Code (Cth) and references to the Crimes Act are references to Crimes Act 1914 (Cth).

This chapter should be read in conjunction with Sentencing Commonwealth offenders at [16-000]. See also Sentencing of federal offenders in Australia — a guide for practitioners, Commonwealth Director of Public Prosecutions, 7th edn, 2024.

“Terrorism offence” is defined in s 3 Crimes Act and includes offences in the Criminal Code relating to terrorism (Pt 5.3, Div 101), terrorist organisations (Pt 5.3, Div 102) and foreign incursions and recruitment (Pt 5.5).

Offences that fall within the definition of a “terrorism offence” are subject to special procedural, sentencing and post-sentencing provisions in the Crimes Act: see [67-090] Specific sentencing provisions applying to certain terrorism offences. However, when sentencing for a terrorism offence, its designation as such for the purposes of the Crimes Act should not obscure the fact there are a multitude of terrorism offences addressing a range of criminality: see for example, Elmir v R [2021] NSWCCA 19 at [34], [37].

Nonetheless, a terrorism offence involving the use of extreme violence (or threat of extreme violence) to create fear and to pursue an ideological cause is considered to have “a seriousness all of its own” because of the threat to democratic government and the security of the state: IM v R [2019] NSWCCA 107 at [45] citing R v Kahar [2016] 1 WLR 3156 at [15]. For such offending, courts have developed sentencing principles which give greater weight to the protective and punitive aspects of sentencing over subjective matters: Lodhi v R [2007] NSWCCA 360 at [274]. See [67-030] General sentencing principles for terrorism offences.

Note: Part 6B of the Crimes Act 1900 (NSW) contains terrorism-related provisions, including an offence of membership of terrorist organisation in s 310J.

Section 3 Crimes Act defines a “terrorism offence” as an offence against:

Some of the key terrorism related definitions in the Criminal Code are “terrorist act” (s 100.1), “terrorist organisation” (s 102.1) and “engage in hostile activity” (s 117.1).

A federal offender must be sentenced in accordance with Pt IB Crimes Act. Under s 16A(1) the court is required, after considering factors which are “relevant and known to the court” including those listed in s 16A(2), to impose a sentence “of a severity appropriate in all the circumstances of the offence”. For a general discussion, see [16-010] General sentencing principles applicable; [16-025] Section 16A(2) factors.

General sentencing principles for “terrorism offences” or the “most serious terrorism offences” emphasise the protection of the community, deterrence and punishment over subjective factors including youth and rehabilitation: Al Maouie v R [2022] NSWCCA 30 at [28]; Khalid v R [2020] NSWCCA 73 at [80]; Alou v R (2019) 101 NSWLR 319 at [131]–[132]; DPP (Cth) v MHK [2017] VSCA 157 at [55], [66]–[67]; Lodhi v R [2007] NSWCCA 360 at [274].

Note: these authorities mostly concern sentence appeals relating to engaging in a terrorist act (s 101.1) or preparing to do so (s 101.6).

While useful, the sentencing principles relating to terrorism offences should not be applied indiscriminately. In Al-Kutobi and Kiad v R [2023] NSWCCA 155, the Court held a terrorism offence, like any other offence, “must be dealt with on its own facts by the sentencing judge, and there can be no hard and fast rules in the realm of instinctive synthesis”: [77]. Similarly, in AH v R [2023] NSWCCA 230, a sentence appeal for conspiring to do an act in preparation for a terrorist act (ss 11.5 and 101.6(1)), the Court endorsed the following comments in Elmir v R [2021] NSWCCA 19 (McCallum JA; Garling and Wright JJ agreeing) at [37]:

In Elmir v R, the Court also emphasised the danger in treating foreign incursion offences in Pt 5.5, which fall into the s 3 Crimes Act definition of terrorist act, as “a species of terrorism” when they involve different elements and criminality to offences in Pt 5.3: [2], [34]–[37].

In accordance with s 16A(2)(a), a court must have regard to the “nature and circumstances” of the offence when imposing a sentence. See also Nature and circumstances of the offence: s 16A(2)(a) in [16-025] Section 16A(2) factors; [10-010] Objective seriousness and proportionality.

This chapter should be read in conjunction with the general discussion of s 16A(2) Crimes Act at [16-025] Section 16A(2) factors.

As discussed above in [67-030] General sentencing principles for terrorism offences, subjective factors, including those in s 16A(2), are generally given less weight in sentencing for a terrorism offence. Nevertheless, a sentencing court must have regard to subjective factors and determine the weight to give them in the circumstances of the case: AH v R [2023] NSWCCA 230 at [68]–[79], [117].

Where a terrorism offence is motived by the advancement of an ideological cause, consideration of whether the offender has an ongoing commitment to, or has renounced, their previously held ideology will be relevant to assessments of remorse and rehabilitation: Al-Kutobi and Kiad v R [2023] NSWCCA 155 at [92]. The onus is on the offender to demonstrate they have renounced their previously held ideology: DPP (Cth) v Besim [2017] VSCA 158 at [108]–[109]; Khalid v R [2020] NSWCCA 73 at [93].

The offences in Div 101 include engaging in a terrorist act contrary to s 101.1 and doing an act in preparation for a terrorist act contrary to s 101.6. For the definition of “terrorist act” in s 100.1, see [67-020]. The Division also contains other terrorism offences relating to the training, possession and collection of a thing or a document in respect of which an offender either knows of, or is reckless as to, its connection to a terrorist act: ss 101.2, 101.4–101.5.

The offender’s ideological motive (see definition of terrorist act in s 100.1(c)) is an element of offences contrary to ss 101.1 and 101.6: Elomar v R [2014] NSWCCA 303 at [698]; see also Lodhi v R [2007] NSWCCA 360 at [88] (Spigelman CJ) (Lodhi v R (2007); Lodhi v R [2006] NSWCCA 121 at [90]–[91] (Spigelman CJ) (Lodhi v R (2006); see [67-020]. However, an offender’s motive is not an element in all offences in Div 101, such as possession of a thing being reckless as to its connection with the preparation of a terrorist act contrary to s 101.4(2). In Alameddine v R [2020] NSWCCA 232, the Court held the judge erred by taking into account on sentence the offender’s alleged motive (sympathy for Islamic State) which had not been established beyond reasonable doubt when assessing the gravity of the s 101.4(2) offence: [57], [113]–[114].

Division 102 provides offences relating to a terrorist organisation including being a member of a terrorist organisation (s 102.3(1)), and funding or supporting a terrorist organisation (ss 102.6, 102.7). For the definition of terrorist organisation in s 102.1 see [67-020]. The definitions of a “terrorist organisation” and “member” in s 102.1 are broad: Benbrika v R [2010] VSCA 281 at [555]; see also The Queen v Abdirahman-Khalif (2020) 271 CLR 265 at [44]–[55] for a discussion of these definitions in the context of a s 102.3(1) offence.

When sentencing an offender for being a member of a terrorist organisation contrary to s 102.3(1), the organisation’s history and objectives can be considered because the nature of its past and potential future activities are relevant to determining objective seriousness: R v Lelikan (2019) 101 NSWLR 490 at [123]. For example, in R v Lelikan, it was appropriate to consider that the Partiya Karkerên Kurdistanê (PKK), which the offender had joined, was well established and had capacity to carry out terrorist acts. It was also appropriate to consider that the PKK “does not as a matter of fact intentionally target innocent civilians or commit any of the atrocities for which organisations such as ISIS are notorious”: [124]–[126], [137]; see also the distinction drawn in Benbrika v R [2010] VSCA 281 at [555] between the objective seriousness of joining a “rag-tag collection of malcontents” and a terrorist organisation with “a proven record of committing the worst terrorist acts imaginable”.

A terrorist organisation’s history and objectives may also be relevant to the assessment of the offender’s moral culpability: Benbrika v R at [556]; R v Lelikan at [127]–[129]. For example, the Court accepted the offender’s moral culpability was reduced in R v Lelikan, after accepting evidence he joined the PKK following adverse events in his youth. However, a sentencing judge cannot “go behind” the listing of a proscribed terrorist organisation by comparing the underlying ideological merits as compared to other terrorist organisations: R v Lelikan at [120]–[122], [132], [155].

Offences in Div 119 Criminal Code relate to hostile activities in a foreign country and include engaging in hostile activity in a foreign country (s 119.1(2)), entering a foreign country with the intention to do so (s 119.1(1)) and related preparatory offences (s 119.4(1)–(5)). For the definition of “engage in hostile activity” in s 117.1 see [67-020].

Prior to 1 December 2014, foreign incursion and recruitment offences were contained in the Crimes (Foreign Incursions and Recruitment) Act 1978 (rep). Those predecessor offences do not fall within the definition of “terrorism offence” in s 3 Crimes Act and carried lower maximum penalties. The relocation of foreign incursion offences into the Criminal Code (Cth), increases to maximum penalties, and the inclusion of the offences in the definition of a terrorism offence in s 3 Crimes Act, indicates a change in the seriousness with which Parliament views crimes of foreign incursion: Elmir v R [2021] NSWCCA 19 at [32]–[34].

Nonetheless, foreign incursion offences in Pt 5.5 address different criminality and have different elements compared to terrorist act offences in Pt 5.3: Elmir v R at [2]. In particular, there is no requirement to prove the offender committed the offence with an ideological motive (see (c) in the definition of terrorist act in s 100.1 which is not included in the definition of engage in hostile activity in s 117.1), and “[t]o give foreign incursion offences the label of being ‘a species of terrorism’ in order to justify the application of a particular set of principles to such offences invites error”: Elmir v R at [15]–[19], [37]. In the context of foreign incursion offences in the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (rep), courts have observed the objective gravity can vary greatly because of the wide range of conduct and objectives encompassed by the offences: Hatahet v R [2023] NSWCCA 305 at [8]–[9]; R v Biber [2018] NSWCCA 271 at [19]–[20].

For an offence of engaging in hostile activity in a foreign state (Crimes (Foreign Incursions and Recruitment) Act, s 6(1)(b) (rep)), the Court in Hatahet v R assessed the objective seriousness of the offence having regard to the offender’s actual and enthusiastic involvement in hostile activities with the Free Syrian Army over several weeks, including carrying weapons: [37].

For offences of entering a foreign country with the intention of engaging in hostile activity (s 6(1)(a) (rep)), as the offence is complete upon the offender entering the foreign country, in assessing the objective seriousness it is necessary to have regard to the circumstances of the entry and intention at the time of entry, rather than to what might or might not have come to pass in the working out of that intention: R v Biber at [21]–[25]. This does not mean that later conduct will necessarily be irrelevant because “the nature and extent of an intent, and the resolve with which it is held, may be revealed by subsequent events”: [27].

Special provisions apply to prescribed “terrorism offences”, including minimum sentences of imprisonment for some offences (Crimes Act, s 16AAA), minimum non-parole provisions (Crimes Act, s 19AG), reduced prospects of parole (Crimes Act, s 19ALB) and the availability of post-sentence orders (Criminal Code, Div 105A) in some circumstances.

These special provisions are not matters that can be taken into account as mitigating factors on sentence: see Lodhi v R [2007] NSWCCA 360 at [261]–[262] in relation to s 19AG; The King v Hatahet [2024] HCA 23 at [9], [39] in relation to s 19ALB; and Alou v R (2019) 101 NSWLR 319 at [149] in relation to Div 105A Criminal Code.

Mandatory minimum penalties under s 16AAA Crimes Act have been introduced for some terrorism offences, including all offences in Pt 5.3, Div 101 and 102 (see s 16AAA, Items 1C–1D).

The mandatory minimum penalty will apply where the conduct constituting the offence occurs “wholly” on or after 8 February 2025: Criminal Code Amendment (Hate Crimes) Act 2025, Sch 2 [7]. Mandatory minimum penalties do not apply if the person was under 18 years of age when the offence was committed: s 16AAC(1).

Under s 16AAC(2), a court may impose a sentence less than the mandatory minimum penalty in s 16AAA to take into account:

Section 16AAC(3) provides a discount of “up to 25%” is available for either factor or a discount of “up to 50%” for both factors.

Courts have considered mandatory minimum sentences of imprisonment under ss 16AAA–16AAC in the context of Commonwealth child sex offences: see Mandatory minimum penalties at [17-790].

Special sentencing provisions apply to a “minimum non-parole offence” under s 19AG Crimes Act. A “minimum non-parole offence” includes a “terrorism offence”: s 19AG(1)(b). It also includes offences of attempt (s 11.1), incitement (s 11.4) or conspiracy (s 11.5): s 11.6; Fattal v The Queen [2013] VSCA 276 at [202]–[212].

For a minimum non-parole offence, a court imposing a sentence of imprisonment:

In Alou v R (2019) 101 NSWLR 319, the Court found s 19AG constitutionally valid, observing that a sentencing court is not precluded from fixing a greater non-parole period than the minimum: [185]. For a detailed discussion of s 19AG, see Sentencing of federal offenders in Australia — a guide for practitioners, Commonwealth Director of Public Prosecutions, 7th edn, 2024, ch 4.10.8.

Section 19AG applies to an offender who is under 18 years of age unless exceptional circumstances exist to justify a shorter non-parole period: s 19AG(4A). In determining this, a court must have regard to community protection as the “paramount consideration” and the offender’s “best interests” as a primary consideration: s 19G(4B). This exception does not appear to apply to an offender who is an adult when sentenced for offences committed as a juvenile: see AH v R [2023] NSWCCA 230 at [113].

Further, for a minimum non-parole offence, a court cannot make an order of a type identified in s 20AB(1AA) if, in order to do so, it first determines that a sentence of detention or imprisonment is the appropriate sentence (such as an intensive correction order): s 20AB(6); Homewood v R [2023] NSWCCA 159 at [69]–[70]; see also Crimes (Sentencing Procedure) Act 1999 (NSW), s 67(1)(c) which provides that an ICO must not be made in respect of a “terrorism offence”.