Membership of a terrorist organisation

Membership of a terrorist organisation is a grave and highly complex offence that falls under the domain of national security and counter-terrorism laws. It involves individuals associating with or actively supporting groups known to engage in terrorism, both domestically and internationally. This offence is taken with utmost seriousness by legal authorities, as it poses a direct threat to the safety and security of a nation.

The Law

Under section 102.3 of the Criminal Code Act 1995 (Cth):

(1)  A person commits an offence if:

  • The person intentionally is a member of an organisation; and
  • The organisation is a terrorist organisation; and
  • The person knows the organisation is a terrorist organisation.

What Must be Proven?

For the Prosecution to be successful, they must be able to prove each of the below elements beyond a reasonable doubt:

  1. You, intentionally, are considered a member of an organisation;
  2. The organisation you are a member of is a terrorist organisation; and
  3. You have knowledge and are aware that the organisation is a terrorist organisation.

What are the Types of Penalties?

The maximum penalty for the offence of membership of a terrorist organisation is 10 years imprisonment.

This offence includes a wide spectrum of offending conduct. As such, the type of penalties varies greatly. The Court may consider sentencing you to one or more of the following:

 

  • Non-Conviction Order – Section 19B;
  • Conditional Release Order (‘CRO’);
  • Recognisance Release Order (‘RRO’)
  • Community Correction Order (‘CCO’);
  • Intensive Correction Order (‘ICO’);
  • Reparation/Compensation Order – Section 21B (‘RPO’) or
  • Full-time imprisonment.

A section 19B bond is a finding of guilt, but the Court does not record a conviction. A bond such as this is usually only given where you have a clear criminal history, your offending behaviour is minor, there is little chance of you offending again, and there were mitigating factors that led to the offending. Even if these facts apply to your case, there is no guarantee you will get this type of penalty. However, cogent subjective material and robust submissions on your behalf can be very persuasive to the Court.

There are two types of non-conviction orders under section 19B, namely non-conviction discharge with no conditions and non-conviction discharge with convictions. The conditions which may be imposed are:

  • Good behaviour bond: this means you must be of good behaviour for a specific period, not exceeding three years.
  • Supervision condition: this means you will be subject to a period of supervision by a probation officer, not exceeding two years. You must comply with that person’s reasonable requests.
  • Restitution or compensation order: This means you must pay back any loss the victim has incurred as a result of the offending.

The Court can impose the above conditions with or without a recognisance release order, which is a requirement that you will be discharged with no conviction upon giving the Court a sum of money to satisfy the Court that you will comply with the conditions imposed upon you for the duration of the order. If you comply, the sum of money will be returned to you. If not, the money can be forfeited to the Commonwealth.

A CRO is where the Court will convict you but release you without passing sentence so long as you enter a recognisance. This means that you will give the Court a sum of money as a promise to comply with certain conditions. The maximum term of the CRO is five years and may involve conditions such as to be of good behaviour, undertake or participate in rehabilitation or counselling (which cannot exceed two years). You will be subject to supervision by a parole officer and must comply with all reasonable directions of that person. You will not be allowed to travel overseas or interstate without the parole officer’s written permission. If you breach a CRO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.

An RRO involves the Court sentencing you to a period of imprisonment but suspending in the following circumstances:

  • That you be released immediately upon depositing a sum of money with the Court as a promise to comply with certain conditions; or
  • That you be released after serving a portion of the total sentence. You can then be released upon entering into recognisance which requires you to deposit a sum or money to the Court as a promise to comply with certain conditions for the remainder of the sentence.

There is no maximum term for an RRO, and it may involve conditions such as to be of good behaviour (not exceeding five years), undertake or participate in rehabilitation or counselling (which cannot exceed two years). You will be subject to supervision by a parole officer and must comply with all reasonable directions of that person (which cannot exceed two years). You will not be allowed to travel overseas or interstate without the parole officer’s written permission. If you breach an RRO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.

If the total term of the sentence is greater than three years, the Court must specify a non-parole period, which is the minimum time you must spend in gaol.

A CCO is another type of sentence which allows you to remain in the community, but you are supervised by Community Corrections. It typically involves more onerous conditions than a CRO and you will receive a conviction, such as community service work, curfew, and place restrictions. The maximum term for a CCO is three years. If you breach a CCO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.

If the Court is satisfied that imprisonment is warranted, it can order that you serve the term of imprisonment in the community while subject to the supervision of Community Corrections and conditions such as home detention (must not exceed 18 months), electronic monitoring, community service, curfew, or rehabilitation. If you breach an ICO, the Court can re-sentence you to a period of full-time custody.

An ICO cannot be imposed in the following circumstances:

  • The offence you’re being sentenced for is an excluded offence such as murder, manslaughter, prescribed sexual offences, terrorism offences, and discharge of firearms offences.
  • The sentence is more than two years. However, if being sentenced for more than one offence, the period increases to three years total.

The Court can order you to pay a sum of money for any loss incurred by the victim with respect to the offending. This can be made in addition to any other sentencing option.

This offence carries a maximum imprisonment of 10 years imprisonment. If the term is less than three years, the Court cannot impose a non-parole period. Instead, the Court will impose an RRO. The benefit of this is that the Parole Board will not be involved and cannot typically refuse your release.

If the term of imprisonment ordered by the Court is more than three years, the Court must impose a non-parole period (the minimum time you must spend in gaol). In State offences, the non-parole period is usually about 75% of the overall sentence. As with State matters, however, this period can be significantly reduced with impactful submissions on your behalf highlighting good prospects of rehabilitation in addition to other subjective circumstances. Usually, the non-parole periods for Commonwealth offences sit at about 60% of the overall sentence.

Unlike State offences, the Attorney-General will conduct its own assessment of whether you are to be released. The Attorney-General will consider any written material submitted on your behalf and the decision will be based upon an evaluation of the following matters:

  • Any risk to the community if you are released;
  • Your compliance and behaviour whilst in custody;
  • Whether you complied with any Court order whilst in custody;
  • The impact of your release on the victim or victim’s family;
  • The nature of the offence you were imprisoned for;
  • The sentencing Court’s remarks;
  • Your criminal record
  • Any reports from Community Corrections or Corrective Services;
  • The likelihood of you complying with any conditions imposed upon your release;
  • If releasing you will assist in reintegration back into the community;
  • Whether the parole period will be sufficient to assist in your rehabilitation; and/or
  • Any special circumstances such as possibility of deportation etc.

Possible Defences

Defending against the charge of membership of a terrorist organisation involves carefully examining the circumstances surrounding the alleged association and presenting a strong legal case.

A defence to the offence of having membership with a terrorist organisation may be that the Prosecution cannot prove the requisite elements beyond a reasonable doubt. This may include:

  1. Lack of Intentional Membership: If the accused can demonstrate that their association with the organization was unintentional or coerced, it can serve as a strong defence. For example, if they were forced, deceived, or manipulated into the association without their knowledge, it may not constitute membership in the legal sense.
  2. Not a Terrorist Organisation: Challenging the classification of the group as a terrorist organisation is another avenue of defence. This may involve providing evidence that the group primarily engages in lawful activities or that the accusations against the organization are unfounded. The defence can argue that the group does not meet the legal criteria for a terrorist organisation.
  3. Lack of Knowledge: If the accused genuinely did not know that the organisation, they associated with was involved in terrorist activities, it may be a valid defence. This can be particularly relevant if the accused joined the group for other, non-illegal reasons, such as for religious or social purposes.
  4. Identification Defence: Establishing that it was not the accused who was involved in the activities attributed to the organisation can be a powerful defence. This involves presenting evidence that someone else was responsible for the actions in question, and the accused was mistakenly identified.
  5. Reasonable Steps: It’s important to note that if the accused took all reasonable steps to cease their membership as soon as they knew the organisation was a terrorist organisation, this can be a valid defence. The law recognises that individuals who promptly disassociate themselves from such groups when they become aware of their true nature should not be held criminally liable.

The law states that:

  • A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
  • A person carries out conduct in self-defence if, and only if, the person believes the conduct is necessary:
    • to defend himself or herself or another person, or
    • to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
    • to protect property from unlawful taking, destruction, damage or interference, or
    • to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.

Once self-defence is raised, the onus lies with the Prosecution to negative self-defence beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in self-defence. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.

Duress involves circumstances where you have been forced to commit a crime against your will, whether it be by way of threat, intimidation, or some other form of coercion. The threat must be so serious that it would have caused an ordinary person of like firmness in your situation to act in the same way. Furthermore, the threat must be the operative cause of your actions. In other words, if you are not worried about the threat at the time of the commission of the offence, or some other factor influences your decision to commit the crime, duress may not be established. Finally, the threat must be continuing. What this means is that if there is an opportunity at some point for you to obviate the threat, by reporting it to the police for example, duress may not be accepted.

Once duress is raised, the onus lies with the Prosecution to negative duress beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in duress. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.

 

For necessity to be established, the following must exist at the time of the commission of the offence:

  1. You acted only to avoid serious, irreversible consequences to yourself or someone you were obligated to protect;
  2. You honestly and reasonably believed that you were in a situation of immediate peril; and
  3. Your actions were reasonable and proportionate to the situation.

 

As is the case with self-defence, the onus lies with the Prosecution to negative necessity beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting out of necessity. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.

 

Why Jackson John?

It’s important to note that these defences require careful investigation and presentation of evidence. An experienced defence lawyer, like our team at Jackson John Defence Lawyers, can assess the specifics of the case, identify the most viable defence strategy, and work diligently to protect the rights and interests of the accused. Cases involving allegations of membership in a terrorist organisation are highly complex, and legal representation is essential to navigate the intricacies of the law and ensure a fair trial.

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