Baladjam v R

[2018] NSWCCA 304

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Baladjam v R [2018] NSWCCA 304

Hearing dates:

8 August 2018

Date of orders:

21 December 2018

Decision date:

21 December 2018

Before:

Bathurst CJ at [1]; Hoeben CJ at CL at [282]; Fagan J at [283]

Decision:

(1)   Extend the time for filing an application for leave to appeal to 1 May 2018.

 

(2)   Grant the applicant leave to appeal.

 

(3)   Dismiss the appeal.

 

(4) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), order that paragraphs [70]-[72], [239]-[240] and the last sentence of paragraph [243] of this judgment be suppressed until further order on the grounds contained in s 8(1)(c) of that Act.

 (5)   Order (4) is to apply throughout the Commonwealth.

Catchwords:

SENTENCING – Appeal against sentence – Powers of court – application for extension of time to apply for leave to appeal against sentence filed over nine years after sentence delivered – whether an extension of time should be granted

 

SENTENCING – Relevant factors on sentence – Co-offenders – Parity – applicant originally charged on indictment for conspiracy with other alleged co-offenders – applicant and another one of the alleged co-offenders later pleaded guilty to charges which did not allege conspiracy – whether applicant and the other person were co-offenders for the purpose of sentencing on those charges

  SENTENCING – Appeal against sentence – Fresh or new evidence – applicant sought to rely upon evidence which was said to demonstrate error in the assessment of likely conditions of custody by sentencing judge – whether evidence admissible

Legislation Cited:

Crimes (Administration of Sentences) Regulation 2014 (NSW)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Criminal Code Act 1995 (Cth)

Cases Cited:

Alvarez v The Queen [2011] NSWCCA 33
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v Besim [2017] VSCA 158
Director of Public Prosecutions (Cth) v MHK (No 1) (2017) 52 VR 272; [2017] VSCA 157
Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
Elomar v The Queen [2014] NSWCCA 303
Grabovac v The Queen [2018] NSWCCA 100
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Gurney v The Queen [2011] NSWCCA 48
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khoury v The Queen [2011] NSWCCA 118
Lodhi v The Queen [2007] NSWCCA 360
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Mansaray v The Queen [2018] NSWCCA 16
Mulato v The Queen [2006] NSWCCA 282
Mun v The Queen [2015] NSWCCA 234
R v A [2004] NSWCCA 292
R v Araya [2005] NSWCCA 283
R v El Hani [2004] NSWCCA 162
R v Martin [1999] 1 Cr App R (S) 477
R v Munday [1981] 2 NSWLR 177
R v Pham (2015) 256 CLR 550; [2015] HCA 39
R v Qutami [2001] NSWCCA 353
R v Smith (1987) 44 SASR 587
R v Swan [2006] NSWCCA 47
R v Touma [2008] NSWSC 1475
R v Z [2006] NSWCCA 342
Turkmani v The Queen [2014] NSWCCA 186
Tyler v The Queen [2007] NSWCCA 247
Why v The Queen [2017] NSWCCA 101
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Xiao v The Queen (2018) 96 NSWLR 1; [2018] NSWCCA 4

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Bradley Umar Sariff Baladjam (applicant)
The Crown (respondent)

Representation:

Counsel:
E Ozen (applicant)
W Abraham QC with Y Shariff (respondent)

  Solicitors:
Birchgrove Legal Lawyers (applicant)
Director of Public Prosecutions (Cth) (respondent)

File Number(s):

2007/2397001

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), paragraphs [70]-[72], [239]-[240] and the last sentence of paragraph [243] of this judgment are suppressed until further order on the grounds contained in s 8(1)(c) of that Act.

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

N/A

Date of Decision:

7 April 2009

Before:

Whealy J

File Number(s):

2007/2397001

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Bradley Umar Sariff Baladjam (the applicant) and nine other men were arrested and charged with conspiring together to do acts in preparation for a terrorist act or acts in late 2005. Each of the accused pleaded not guilty to this charge and they were committed for trial following a lengthy committal hearing. Pre-trial proceedings commenced in February 2008 and lasted about eight months. Following the conclusion of these proceedings, a jury was scheduled to be empanelled on 3 November 2008.

On the morning of that day, the applicant pleaded guilty to four offences which were different from that with which he was originally charged, after having commenced negotiations with the prosecution in October 2008. Two of the offences involved doing acts in preparation for a terrorist act or acts, namely, making enquiries about and acquiring chemicals and firearm ammunition. The remaining two offences involved possessing extremist material and other things which were connected with the preparation of a terrorist act or acts. None of the offences alleged any conspiracy, co-operation or co-ordination with any of the other accused alongside whom the applicant had originally been charged. One of the alleged co-offenders of the applicant on the original charge, Mr Mazen Touma, also pleaded guilty to similar offences.

The applicant was sentenced for the four offences to which he pleaded guilty on 7 April 2009. After he was sentenced, the applicant retained legal representatives to advise on and prepare an application for leave to appeal against his sentence. For various reasons, he was advised to delay filing an application. By 2016, the applicant had become dissatisfied with his existing legal representatives, and retained new ones. His new legal representatives ultimately filed an application for leave to appeal against his sentence and an application for an extension of time to apply for leave to appeal against sentence on 1 May 2018.

There were four main issues on appeal:

1   Whether an extension of time to apply for leave to appeal against sentence should be granted;

2   Whether the applicant has an objectively justifiable sense of grievance when his sentence is compared to that imposed on Mr Mazen Touma;

3   Whether the applicant should be permitted to rely on additional evidence about the conditions of his custody to demonstrate that the sentencing judge erred in assessing what the likely conditions of custody would be; and

4   Whether the sentence imposed on the applicant was manifestly excessive.

Whether an extension of time should be granted

(i)   An extension of time to apply for leave to appeal against sentence should be granted. While there had been a lengthy delay in making an application, there was unchallenged evidence which provided an explanation for the cause of the delay. Further, the grounds relied upon by the applicant could not be said to be unarguable, and the reopening of the sentencing proceedings would not in any way affect any particular victim: [93]-[96] (Bathurst CJ); [282] (Hoeben CJ at CL); [283] (Fagan J).

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, referred to.

Whether applicant has an objectively justifiable sense of grievance

(ii)   The applicant could not have an objectively justifiable sense of grievance when his sentence is compared to that imposed on Mr Mazen Touma. The applicant and Mr Touma were not co-offenders for the purpose of sentencing. Therefore, the parity principle did not apply. It is irrelevant that they were both charged as members of the same conspiracy since that charge was not ultimately pressed and they were not sentenced on that charge: [146]-[149] (Bathurst CJ); [282] (Hoeben CJ at CL); [283] (Fagan J).

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, considered.

R v Araya [2005] NSWCCA 283; Why v The Queen [2017] NSWCCA 101, referred to.

(iii)   Even if the parity principle did apply to the applicant and Mr Touma, it was open to the sentencing judge to conclude that the conduct of the applicant was more serious than that of Mr Touma. Further, it was also open to the sentencing judge to award a lesser discount to the applicant for his plea of guilty and the assistance which he gave to the authorities than Mr Touma: [150]-[154] (Bathurst CJ); [282] (Hoeben CJ at CL); [283] (Fagan J).

Whether applicant permitted to rely on additional evidence

(iv)   The applicant could not be permitted to rely on additional evidence about the conditions of his custody to demonstrate that the sentencing judge erred in assessing what the likely conditions of custody would be. The evidence intended to be relied upon by the applicant did not demonstrate that the sentencing judge failed to appreciate the likely conditions of custody at the time of sentence. It only demonstrated that the conditions of custody had changed over time as a result of decisions made by the executive. Therefore, the evidence was irrelevant: [228]-[233] (Bathurst CJ); [282] (Hoeben CJ at CL); [283] (Fagan J).

R v Smith (1987) 44 SASR 587; Khoury v The Queen [2011] NSWCCA 118; Turkmani v The Queen [2014] NSWCCA 186, considered.

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25, referred to.

Whether sentence manifestly excessive

(v)   The sentence imposed on the applicant was not manifestly excessive. For each of the particulars relied upon by the applicant to demonstrate that the sentence was manifestly excessive, it was open to the sentencing judge to reason in the way that he did. None of those matters disclosed any error of principle by the sentencing judge. Therefore, taking all of the matters raised by the applicant into account, the sentence was not “unreasonable or plainly unjust”: [259]-[280] (Bathurst CJ); [282] (Hoeben CJ at CL); [283] (Fagan J).

Lodhi v The Queen [2007] NSWCCA 360; Director of Public Prosecutions (Cth) v MHK (No 1) (2017) 52 VR 272; [2017] VSCA 157; Director of Public Prosecutions (Cth) v Besim [2017] VSCA 158, referred to.

Judgment

1. BATHURST CJ: Mr Bradley Umar Sariff Baladjam (the applicant) pleaded guilty on 3 November 2008 to the following four charges:

“1   Between about 1 July 2005 and about 8 November 2005 at Sydney in the State of New South Wales, did an act, namely made enquiries about, and acquired quantities of firearm ammunition, in preparation for a terrorist act, or acts.

2   Between about 22 September 2005 and about 1 November 2005 at Sydney in the State of New South Wales, did an act, namely made enquiries about, and acquired quantities of chemicals, in preparation for a terrorist act, or acts.

3   On or about 8 November 2005 at Sydney in the State of New South Wales, possessed a thing, namely a collection of documents, including electronic documents, images, videos and audio files, connected with preparation for a terrorist act or acts, knowing of that connection.

4   On or about 8 November 2005 at Sydney in the State of New South Wales, possessed a thing, namely a collection of items, including two loaded handguns, 5 litres of battery acid, 5 litres of hydrochloric acid, and one Nokia telephone handset which had been connected in the false name of Jeffrey Leydon, connected with preparation for a terrorist act or acts, knowing of that connection.”

2. The acts which were the subject of the first two counts were contrary to s 101.6(1) of the schedule to the Criminal Code Act 1995 (Cth) (the Criminal Code). Each of those counts carried a maximum penalty of life imprisonment.

3. The acts which were the subject of the second two counts were contrary to s 101.4(1) of the Criminal Code. Each of those counts carried a maximum penalty of imprisonment for 15 years.

4. The applicant was sentenced for these offences on 7 April 2009. He was sentenced on Count 1 to a term of imprisonment for 18 years and 8 months to commence on 8 November 2005 and to expire on 7 July 2024. On Count 2, the same sentence was imposed, to be served concurrently with the sentence on Count 1.

5. The applicant was sentenced on Count 3 to a term of imprisonment for 8 years to commence on 8 November 2005 and to expire on 7 November 2013, while on Count 4, he was sentenced to a term of imprisonment for 7 years to commence on 8 November 2005 and to expire on 7 November 2012.

6. The sentencing judge fixed a single non-parole period in respect of those sentences of 14 years, commencing on 8 November 2005 and expiring on 7 November 2019.

7. On 1 May 2018, a little over nine years after the sentences were imposed, the applicant filed an application for an extension of time to apply for leave to appeal against sentence and an application for leave to appeal against sentence. The grounds of appeal upon which the applicant relied were as follows:

“1.   Justifiable sense of grievance when sentence is compared to co-offender, Mazen Touma.

2.   That the sentence was manifestly excessive, based in particular on the following propositions:

a.   That the starting point was too high

b.   The sentencing judge gave insufficient weight to the value of the assistance given by the applicant

c.   That the sentencing judge gave insufficient weight to:

i.   The value of the plea of guilty; and

ii.   evidence of remorse, contrition and turning away from extremist belief

d.   That the sentencing judge gave insufficient weight to the hardship of custody the applicant has suffered

e.   The applicant’s subjective case.”

8. The Crown opposes the application for an extension of time.

The facts giving rise to the offence

9. The sentencing judge dealt with the facts giving rise to the offences in a manner which was uncontroversial. They may be summarised as follows.

10. The applicant was one of nine men who were originally arrested and charged in late 2005 with a serious terrorism-related offence. The original charge was that the nine men had “conspired together to do acts in preparation for a terrorist act or acts”. The sentencing judge noted that each of the men had pleaded not guilty to the charge and “had earlier been committed for trial following a lengthy committal hearing”. The trial was set down for hearing in February 2008, but pre-trial procedures lasted some eight months after that date. Jury empanelment was scheduled to occur on 3 November 2008, which was the day on which the applicant pleaded guilty to the four charges referred to at [1] above.

11. The sentencing judge noted that it had been indicated to him that the applicant’s legal representatives had approached the Crown on 22 October 2008 to open negotiations “with a view to negotiating charges and facts to which the offender would be prepared to plead guilty”. As is apparent, these negotiations were successful. It should be noted that, prior to these negotiations, another of the alleged conspirators, Mr Mazen Touma, had also pleaded guilty to four charges contained in a fresh indictment. Thosee charges alleged contraventions of the same provisions of the Criminal Code to which the applicant pleaded guilty.

12. The agreed facts presented to the sentencing judge in relation to the applicant’s plea noted that, at the time of the commission of the offences, the applicant was a “devout Muslim” and held a belief that “Islam throughout the world was under attack and there was a religious obligation to come to the defence of Islam and other Muslims”, that “‘Jihad’ was the primary means by which this religious obligation should be fulfilled”, and that “a significant aspect of the fulfilment of this obligation was violent Jihad which involved the application of force and violence, including in certain circumstances the killing of … persons who do not have the same fundamentalist beliefs”. The sentencing judge noted that the views were evidenced by, amongst other things, the finding of “a large volume of material supporting such views” at the premises of the applicant at the time of his arrest. The extremist material was found in the form of “electronic media including videos, DVDs, CDs and material from websites downloaded and saved on [the applicant’s] computer”. This material formed the basis of Count 3 in the indictment.

13. The agreed facts stated that, in accordance with the holding of such beliefs, the applicant committed the offences which were the subject of Counts 1, 2 and 3. In undertaking at least some of those activities, the agreed facts stated that the applicant was aware that he was being monitored by the authorities, but, notwithstanding, he continued with the activities the subject of the first three counts and took measures designed to avoid detection.

14. The agreed facts also identified the evidence found at the time of the applicant’s arrest which demonstrated that he was aware that he was being monitored by the authorities. The evidence included a notebook which recorded the registration numbers of vehicles which had been used by the authorities in the course of surveillance and a notebook which contained various notes as to how he proposed to avoid continued surveillance. The agreed facts also identified the evidence which demonstrated that the applicant displayed a “degree of planning” in order to avoid detection, including the acquisition and use of a mobile telephone in a false name and the use of false names when enquiring about the availability of chemicals.

15. The agreed facts in respect of Count 1 referred to a number of enquiries about and acquisition of ammunition. The enquiries took place between July and November 2005. There were six such enquiries particularised. It is unnecessary to set each of them out in detail, but they related to the purchase of 2 cases of “7.62 x 39mm calibre ammunition”, 900 rounds of “9mm calibre ammunition”, 300 rounds of “Fiocchi brand 9mm ammunition”, a “.45 calibre cleaning kit”, a “606 gun treatment” and two rolls of cleaning cloth. Following the last enquiry, which took place on 2 November 2005, the agreed facts recorded that the applicant, using a telephone number in the false name of Jeffrey Leydon, called a directory service and asked them to provide him with a listing for a guns and ammunition store in Ryde. On the following day, he called another person about the purchase of ammunition.

16. The agreed facts further record that, at the time of his arrest, the applicant was in possession of “two loaded firearms, namely a .38 Smith and Wesson revolver and a Browning Hi Power 9mm pistol”. The following items of ammunition were also found at his residence on 8 November 2005:

“…

(b)   a replica pistol;

(c)   six (6) rifle cartridges;

…

(e)   one box of PMC brand .38 special ammunition (44 rounds);

(f)   1 x MKE 7.9952 central fire rifle cartridge;

(g)   4 x PMC brand 8mm Mauser centre fire rifle cartridge; and

(h)   1 x Winchester 12g AA cartridge (in safe).”

17. The agreed facts in relation to Count 2 referred to a number of enquiries about and acquisition of chemicals in preparation for a terrorist act or acts. They particularised that, on 22 September 2005, the applicant purchased “3 x 400ml bottles of 6% hydrogen peroxide” from a pharmacy at Pendle Hill and a further “3 x 400ml bottles of 6% hydrogen peroxide” from a pharmacy at Toongabbie. The agreed facts recorded that hydrogen peroxide was “one of a number of critical reagents for the manufacture of the explosive TATP (triacetone triperoxide) and HMTD (hexamethylene triperoxide diamine) which are classified as organic peroxide explosives”. The agreed facts recorded that no “specialised chemical equipment” was required for the manufacture of either of those explosives.

18. The agreed facts also recorded further enquiries being made by the applicant in late October 2005 for sulphuric acid from businesses known as “Pope Batteries” and “Consolidated Chemicals”. The applicant made those enquiries in the false name of Jeffery Leydon. The applicant obtained a price estimate from Consolidated Chemicals for an order of 300 litres of sulphuric acid contained in about 10 to 15 drums.

17. The agreed facts also recorded that the applicant later made enquiries of a directory service in a false name about the contact details for “any courier company”. On 1 November 2005, the applicant made two telephone calls to “A Class Couriers” and sought a quote to pick up 10 to 15 drums of unspecified material at 10kg per drum from a factory in an industrial area at Blacktown. He advised the courier that the drums contained non-flammable liquid. The applicant was given a price estimate, and said he would call back after getting other quotes. The applicant did not call back.

18. In the course of the execution of a search warrant at the premises of the applicant on 8 November 2005, 5 litres of battery acid and 5 litres of hydrochloric acid were discovered in the garage.

19. Count 3 related to the possession of extremist material. The agreed facts recorded that the material included an “instructional article relating to the kidnapping of nationals of a ‘hostile’ country as part of Jihad”, “books entitled ‘what it takes to fight and win, Vols. 1 and 2’, ‘Combat and survival’, ‘SAS Jungle Survival Book’ and ‘Stay Alive’”, and a printout from a website “setting out the principles relating to Jihad”. Further details of this material were contained in an annexure to the agreed statement of facts. The sentencing judge, with respect accurately, summarised the material in the following terms:

“[72]   …The material, however, fell into a number of categories. First, there were images of military conflict, deceased and injured people and live footage of at least two gruesome executions. (One, for example, shows the execution of a male by beheading. The executioner is a masked man using an axe. The images of deceased and injured people are particularly distressing.)

[73]   The next category is a group of various images which might be described as jihadist material praising and anticipating the destruction of Israel and the United States.

[74]   Thirdly, there are many document files praising the mujahideen, extolling the virtues of Osama bin Laden and describing the glories of martyrdom for those engaged in violent jihad.

[75]   Fourthly, there are many files providing instructional information on sniper training, weapons, nuclear, biological and chemical warfare, and the like.

[76]   Fifthly, there are files devoted to particular instructional material relating, for example, to the assembly and detonation of explosives. There are countless files dealing with aspects of insurgent warfare in all its forms.

[77]   Finally, there are many religious tracts and files devoted to the need for Islam to pursue jihad in the protection of Islamic lands and in the destruction of the ‘infidel’. Those are notable for their extreme intolerance of those who do not faithfully follow the call of Islam.”

22. Count 4 related to the possession of the two loaded firearms, the battery acid and hydrochloric acid to which I have referred above, and a “Nokia telephone handset” connected to the false number of Jeffrey Leydon.

The applicant’s subjective circumstances

23. The sentencing judge described a number of matters relating to the applicant’s subjective circumstances as “not in dispute”. The following largely adopts the statement of these matters in the remarks of the sentencing judge.

24. At the time of the sentence, the applicant was 32 years old, having been born in Sydney on 17 January 1977. He was the eldest of three children, his brother being 28 years old and his sister being 26 years old at that time. His brother had recently moved to the United Arab Emirates to work as a teacher, while his mother was living in Malaysia and was intending to move to the United Arab Emirates in the then near future. The applicant’s father originally came from Indonesia, although he was of an Arabic background. His mother was Australian, although she converted to Islam at the age of 16 when she married the applicant’s father.

25. The applicant had a “troubled and deeply distressing” childhood. When he was about 5 years old, his father developed “a serious mental illness and his behaviour was on occasions both bizarre and threatening”. When the applicant was about 8 years old, his parents separated and the applicant had very little contact with his father until he reached his mid-teens.

26. The applicant’s mother remarried when the applicant was about 12 years old. His stepfather proved to be an “extremely violent” man who “bashed [the applicant’s] mother and the children, often for no apparent reason”. The situation was serious enough for the applicant to attempt suicide when he was about 14 years old. The applicant and his brother were removed from the family by the Department of Community Services. At that time, the offender made contact with his father, who was, for a period, mentally stable and had remarried. There was then a close relationship between the applicant and his father for a period of time, but his father relapsed, and this led to the applicant becoming a homeless person. The applicant told a forensic psychologist, Ms Anna Robilliard that, by the time he was in Year 12 at school, he was “hanging around with Samoans and Lebanese” and that he was “drinking excessively and abusing himself with drugs”.

27. In his twenties, the applicant started a number of TAFE courses, none of which he completed. However, he was able to obtain employment as a painter and decorator. He was “quite good” at the work, and was able to set up his own business, employing a team of men and securing “some big contracts with building companies”.

28. Prior to this, when the applicant was 19 years old, he married. Initially, after the marriage, the applicant “tried to stay away from drugs and delinquency”, and he and his wife set up home next door to the applicant’s mother. In due course, they had four children, the last of whom was born after the applicant’s arrest in November 2005.

29. However, the applicant apparently relapsed into drug use and association with what the sentencing judge described as “unhelpful friends”, and he separated from his wife for a few months. However, by the time he was 23 years old in 2000, he had reunited with his wife and children. An incident that year had “persuaded him to stop using drugs and to break off his association with the peer group who were causing trouble for his marriage”.

30. By 2001, the applicant was “more settled” in his marriage. That year, he travelled to Mecca for Hajj with his mother. The applicant told Ms Robilliard that the terrorist attacks in the United States on 11 September 2001 had a “profound impact” on him and that he began to worry about the safety of his family. He was visited twice by ASIO officers about that time, and was worried about what he perceived to be the persecution of Muslims around the world. He and his wife discussed moving overseas.

31. In 2004, the applicant and his wife travelled to Bali and decided to apply for visas, which were granted. They then began selling off their possessions in preparation for the move. However, in mid-2005, the applicant’s visa was cancelled, which “put an end” to their relocation plans.

32. At the time of his arrest in 2005, the applicant was involved in what the sentencing judge described as a “shoot out” with the police. In the process, the applicant was shot in the neck and suffered extensive nerve damage affecting his right arm. The applicant is no longer able to move it voluntarily and intermittently has to use his left arm to extend and reposition his right arm. He suffers continuous pain in his right arm and he requires daily medication for pain management.

33. The sentencing judge recorded that, since his arrest, the applicant’s relationship with his wife and children had “deteriorated considerably”. He had no communication with them from about August 2008 until January 2009, when his wife and children and his mother were staying with friends in Malaysia. The sentencing judge noted that, at the time of sentence, his wife and children had returned, but that this “seemed likely” to be temporary, and that the applicant’s wife would take the children back to Malaysia, where she was intending to settle. The sentencing judge recorded that “the likelihood is that, once [the applicant] is sentenced, his only immediate family member in Australia will be his younger sister” to whom he did not seem to be “particularly close”.

34. The sentencing judge referred in some detail to the psychological report of Ms Robilliard. He noted that she concluded that, while the applicant was depressed about his circumstances, he did not “suffer from any clinical depression and showed no signs of disordered thought”. She described his participation during an interview as “calm” and his conversation as “thoughtful and cogent”.

35. An intelligence test administered by Ms Robilliard “showed an IQ result equivalent to a percentile rank of 92”, which meant the applicant had “scored equal to or ahead of 92% of his age group in this and similar tests of intelligence”. Ms Robilliard also carried out a personality test, as a result of which she described the applicant as “anxious”, but with no other personality disorder.

36. The sentencing judge noted that Ms Robilliard examined the applicant on matters relating to the background of his offences. In that context the sentencing judge set out the following portion of her report:

“As reported in the relationship section above, [the applicant] began to attend the mosque with his brother Ali around 2000/2001. He was trying to commit to his role as a husband and father and dissociate himself from the lifestyle he had developed over the preceding few years which revolved around reckless drug use at clubs and similar venues.

Events of September 11, 2001 had a profound impact on [the applicant]. He began to question the morality and motives of world powers and the situation of Muslims worldwide. In the context of the group of young Muslim men that centred on the mosque, he said his consciousness was heightened and he interpreted things he heard as justifying retribution. After his return from the Hajj he said he was questioned twice by ASIO which disturbed him and he came to fear for his safety and the safety of his family.

The London bombings of 7 July 2005 appear to have had particular significance for [the applicant]. He recalls being impressed by the impact that event had on London. He understood from news reports that the city was brought to a stand still and the communication network was disabled. The financial markets were also affected and [the applicant] said he was struck by the magnitude of the impact and thought it had probably made many more people aware of the plight of the people of Iraq and the interference of the United States. [The applicant] said he thought if he could do something similar in Australia without hurting people, it would extend awareness of aggression against Muslims and alert Australians to oppose the government and stop the nation’s alliance with the United States.

[The applicant] said he researched the substance used at the London bombings and learnt that hydrogen peroxide was one of the ingredients. He said he then became obsessed with collecting small bottles of the substance and the activity itself helped him to feel he was ‘doing something … I felt a sense of satisfaction … it was letting out my anger’. He said he had no clear idea of what he was going to do with it and on learning how the explosive was made, subsequent to his arrest, he is certain he would not have had the ability to go through with it.

With regard to the gathering of ammunition, [the applicant] said he already had a shooter’s licence. He said the purchase of ammunition became something of an obsession also, although it had ‘no direction … it was more rebellion’.”

37. The sentencing judge also noted that Ms Robilliard said that the offender was “very sad about the personal circumstances that had resulted from the offences” and that he hoped that, when he was released, there would be a “more tolerant attitude towards Muslims in Australia”. He told Ms Robilliard that although he had thought that what he was doing was right, he now realised that “you don’t put out a fire with petrol”. Ms Robilliard stated that the applicant had told her that he had “learned the message of patience – you can’t force a solution and you can’t break the rules of the Almighty”.

38. The sentencing judge also noted that, in the final part of her report, Ms Robilliard said that the offender recognised that his religious fervour had become “a vehicle for past unresolved anger about his own life”. In that context, he set out the following portion of her report:

“Since his arrest and imprisonment the client has had ample time to think and his very sound intellectual ability has enabled him to reconsider and reformulate his beliefs. While he is still committed to his religion, [the applicant] said he now recognises that he was seriously misguided and that using violence to object to violence is not logical or acceptable behaviour. He said he has a deeper understanding of his faith than he had before and he has rejected the opinions of those he looked to for counsel and instruction, preferring to read the Koran for himself … his future perspective is therefore very limited at this point, however, he denied any thought of suicide and said he is learning the meaning of patience. Unresolved feelings of anger about the circumstances of his birth and formative years no longer appear to inflame him and he has a resigned disposition consistent with prominent depression evident from his clinical presentation and his personality profile.”

The remarks on sentence

39. After recording the facts giving rise to the offences and the applicant’s subjective circumstances, the sentencing judge noted that it was clear that “the common law concepts that are especially important in the present sentencing exercise are punishment, deterrence, denunciation and incapacitation”. He stated that the “broad purpose” of the creation of offences of the nature of the ones in question was “to prevent and deter the emergence of circumstances which may render more likely the carrying out of a terrorist act”; to “punish those who contemplate action of the prohibited kind”; to “denounce the activities of terrorists and their adherents”; and to “incapacitate them so that the community will be protected from the horrific consequences contemplated or made possible by their actions”.

40. The sentencing judge stated that it was important to note that terrorism legislation is “concerned with actions even where the terrorist act contemplated by an accused person has not come to fruition or fulfilment” and that it “caters for prohibited activities connected with terrorism even where no target has been selected, or where no final decision has been made as to who will carry out the ultimate act of terrorism”. He stated that there was thus a need to “consider what would have happened had the intending terrorist act or acts actually occurred”. He stated that there was a “commensurate” need to “assess [the applicant’s] intentions, so far as they can be ascertained, by reference to his actions and his plea”.

41. The sentencing judge stated that the agreed facts inevitably pointed to a conclusion that “the level of criminality involved in the commission of the four offences is very high”. He noted that the evidence did not enable the Court to find that the applicant had “an intention, in committing the offences, that people would be killed”, although “the possibility of the danger of death or injury to persons was comprehended in the commission of the offences”.

42. The sentencing judge stated that it was “the nature of the actions and the range of conduct carried out by [the applicant] that elevate the criminality in the present offences to a very high level”. He noted that the agreed facts established that the applicant was engaged in “an extensive range of terrorist related activities”. The sentencing judge noted that, “[q]uite apart from the multiple inquiries he made in connection with the purchase of ammunition or the delivery of chemicals, [the applicant] collected 900 rounds of ammunition and purchased six bottles of hydrogen peroxide”. He stated that “the ammunition was of a kind that was capable of use in SKS and AK-47 military assault rifles”. He stated that “the hydrogen peroxide was capable of being used as an ingredient in the construction of a lethal bomb or bombs”, as was the sulphuric and hydrochloric acid found at the premises of the applicant.

43. The sentencing judge stated that he accepted as a matter established beyond reasonable doubt that the applicant “intended that the terrorist act or acts to which his conduct was related would involve action that, at the very least, would cause serious damage to property, endanger life and create a serious risk to the health and safety of the public”. He said that “very considerable insight is given into the mindset of [the applicant] by the extremist and instructional material he possessed”. The sentencing judge stated “in blunt terms” that “the collective thrust of the material embraces a view that Muslims are obligated to pursue a violent form of jihad to undermine and overturn liberal democratic societies, and to replace them with Islamic rule and Sharia law”.

44. The sentencing judge found that those intentions and state of mind “underpinned each of the actions of [the applicant] in acquiring ammunition and chemicals” and that they also underlay “his actions in making a significant number of inquiries at various other ammunition outlets even when no ammunition may have been obtained from those sources”. The sentencing judge stated that “[t]he presence of those intentions, and the existence of that state of mind, demonstrate graphically the serious character of the criminality involved, especially in relation to the offences under Counts 1 and 2”.

45. The sentencing judge stated that a further factor emphasising the seriousness of the criminality was “the zeal, energy and enthusiasm [the applicant] displayed for the tasks he had set himself”. He stated that this was “apparent from the number of attempts and inquiries he made”, noting that the applicant’s activities were “persistent, diligent and extremely focused”.

46. The sentencing judge stated that a further matter of significance for his assessment of the applicant’s criminality was “the numerous counter-surveillance measures carefully planned and taken by [the applicant]”. In those circumstances, he concluded that the agreed facts established that the applicant was “a fervent and committed terrorist whose actions posed a significant danger to the community”.

47. However, the sentencing judge stated that these conclusions needed to be moderated by the recognition of two matters. First, the sentencing judge repeated that he could not be satisfied beyond reasonable doubt that the applicant “intended, in committing the offence, to use the ammunition or chemicals to directly bring about the loss of human life”. However, he said that the use of such materials will “very often, perhaps always, carry with it the possibility that human life may be endangered”. Second, the sentencing judge stated that the Crown had not suggested, and that he did not find, that the offences were of “the very worst kind contemplated by the relevant part of the legislation”.

48. The sentencing judge noted that senior counsel for the applicant had sought to draw a comparison between his client’s behaviour and that of Mr Touma. The sentencing judge stated that he did not find it a “particularly helpful comparison”. He noted that Mr Touma and the applicant “were not, strictly speaking, co-offenders” and that the authorities established that issues of parity only arose in the case of co-offenders, although the “sentences imposed on persons for similar offences may, in some circumstances, create a guide, or be used as a guide, in considering the range of penalty”.

39. Notwithstanding, the sentencing judge stated that it was “not inappropriate” to have some regard to the sentences imposed on Mr Touma and Mr Lodhi, who the sentencing judge had also previously sentenced for terrorism offences: see Lodhi v The Queen [2007] NSWCCA 360 (Lodhi). He said that they “may, to a degree, provide an element of comparison, although it needs to be borne in mind that the objective criminality of any particular offender and, for that matter, his or her subjective circumstances, are likely to differ markedly from those involving other persons who may have committed similar crimes”.

40. The sentencing judge stated that, in his view, the objective level of criminality of the applicant was “at least as serious, if not greater, than that shown” in the cases involving Mr Lodhi and Mr Touma. He stated that it was “a deal more serious than the situation revealed” in Mr Lodhi’s case and, in his view, it was “overall more serious than the level demonstrated” in the case against Mr Touma.

41. The sentencing judge noted that it was necessary to consider the plea. He stated that the proper approach was to “recognise the value of the plea of guilty by reference to the willingness of the offender to facilitate the course of justice” and that it was “not appropriate simply to view the utilitarian value of the plea on the basis that it has, or may have, saved the community the expense of a contested hearing”. It should be noted that the sentencing judge reached this conclusion having regard to what was said by this Court in Tyler v The Queen [2007] NSWCCA 247, which was not followed in the recent decision of this Court in Xiao v The Queen (2018) 96 NSWLR 1; [2018] NSWCCA 4 (Xiao).

42. The sentencing judge stated that the plea was entered immediately before the empanelment of the jury and that, “[i]n realistic terms, it must be regarded as a plea entered at the hearing”. He stated that, for that reason, it should attract a discount at “the lower end of the range”.

43. The sentencing judge noted the argument advanced on behalf of the applicant that, while negotiations on the part of the applicant for a plea commenced at a “significantly later time” than the commencement of the negotiations in Mr Touma’s matter, the applicant’s plea was, in reality, entered within a “relatively short time” of Mr Touma’s plea. He noted that Mr Touma received a discount of 25%, but stated that the circumstances involving his plea were “very different” from those of the applicant. He stated that, in Mr Touma’s matter, the Court was entitled to take into account that the “first approach to enter a plea had been made at the conclusion of the committal proceedings” in April 2007, which offer was rejected by the Director of Public Prosecutions at that time. He noted that another approach was subsequently made to the Crown when pre-trial proceedings commenced in February 2008, and that there were “detailed discussions and negotiations that took place over a period of some months, culminating in an agreement being reached” between the Crown and Mr Touma for the proposed plea.

44. The sentencing judge stated that Mr Touma’s situation bore “little comparison” to that of the applicant, where the first approach was made less than one week before the jury empanelment process was to begin. However, he stated that he was entitled to take into account and note that “an indirect but very real consequence of [the applicant’s] willingness to facilitate the course of justice is that the nature and prospective length of the trial involving [the applicant] will have been sufficiently curtailed”. He stated that the Court should “acknowledge in its allowance a modest recognition that the course of justice has been facilitated as a consequence of the subjective intention of [the applicant] reflected in the plea”.

45. The sentencing judge said that he was satisfied that the appropriate discount to allow for the plea was at “the lower end of the relevant range”. The sentencing judge noted that, in a separate confidential judgment, he had indicated that it was his intention to make an allowance by way of discount in recognition of assistance to the authorities and his intention to reflect in a combined discount the effect of both the guilty plea and the assistance to the authorities.

46. In dealing with the question of remorse and contrition, the sentencing judge posed for himself the question: has the applicant “drawn back” from his extremist beliefs?

47. In that context, the sentencing judge accepted that recognition should be given to the fact that the plea of guilty and assistance to the authorities may be taken to a modest degree to express “remorse, contrition and an acceptance of responsibility”. He stated that he proposed to select a discount of 15% to represent a “proper allowance” for both the plea and assistance to the authorities. However, he expressed the view that the appropriate way to address the additional element of remorse and contrition was to take those factors into account in the selection of an appropriate sentence.

48. The sentencing judge stated that there was a “broader question” about whether the applicant’s plea and his limited assistance to the authorities represented a “drawing back by [the applicant] from the extremist beliefs that motivated the commission of the offences”. He said that this was “an important matter”. He stated that he had found that, at the time of the commission of the offence, the applicant was “a committed extremist, devoted to the object of violent jihad”. He referred to the remarks of Ms Robilliard which I have set out at [38] above, suggesting that the applicant has now “reconsidered and reformulated” his beliefs, that he recognises that he was “seriously misguided”, and that “using violence to object to violence is not logical or acceptable behaviour”.

49. However, the sentencing judge stated that the applicant had given no evidence, and that his present state of mind “has not been explored or tested in any reliable way”. He stated that he agreed that “little weight” could be given to statements concerning this issue in the psychologist’s report in circumstances where the applicant had not himself given evidence of his present state of mind.

50. The sentencing judge stated that the absence of evidence from the offender or other objectively reliable evidence placed the Court in “a difficult position”, in that the Court was “required to make a prediction about the future behaviour of [the applicant], in circumstances where there is very little to go on by way of hard evidence”. He noted that the Court of Criminal Appeal in Lodhi had made it clear that “a significantly heavy sentence may be required to protect the community in a case where the Court is satisfied that a terrorist offender has not resiled from his previous extremist convictions”. The sentencing judge stated that the problem for the Court in the present matter was that “the absence of reliable evidence on these matters results in a situation where the position is by no means clear”.

51. However, the sentencing judge stated that he was not satisfied beyond reasonable doubt that the applicant had “refused to move away” from his former extremist position. Nor was he prepared to find that his plea and the assistance he gave were “made and provided solely for selfish and self-serving reasons”. Rather, he stated that, on the probabilities, he was prepared to find that “there is some reason to accept that”, having regard to the matters he had mentioned, the applicant had “retreated, at least to some degree, from the limits of his original extremist position”, and that the plea and assistance may be taken as an indicator, “perhaps a very cautious one”, that the applicant was “in the course of relenting from, or moving away from, his past extremist position”. He stated, however, that only a “moderate recognition” was called for in these areas. He said that “there should be an allowance made in the determination of the appropriate sentence to reflect the fact, that, although the community may still need protection, this is at a lower level than might have been otherwise, were it not for the plea and assistance”.

52. The sentencing judge stated that he took into account the fact that the applicant was a “relatively young man” and married with a wife and four children. He also took into account that he had no previous convictions on his record, and that, although he had a “troubled boyhood” and came under the influence of drugs and “bad associates” for a period of his young adult life, he showed initiative in working in his own painting business and later obtaining employment as a teacher of English as a second language.

53. The sentencing judge stated that he also took into account that the applicant was “likely to have little family support while he is serving his sentence” and that his incarceration would be made “more difficult” because of the physical injuries he suffered at the time of his arrest.

54. The sentencing judge noted that the applicant was classified as “AA remand” and that it was “indeed certain” that, upon the imposition of the sentence, he would, at least in the short term, remain so classified. The sentencing judge stated that he understood that the “progression past AA classification will be determined by a number of factors, including his behaviour in custody and intelligence assessments regarding the criteria for designation as an AA classified prisoner”. He noted that there was evidence before him from Mr Michael Hovey, a Deputy Superintendent within the Department of Corrective Services. He noted that Mr Hovey addressed the issue of “AA” classification and stated that it seemed that the “likely outcome” of the sentencing would be that the applicant would be taken to the “High Risk Management Unit” at Goulburn (HRMU) and be segregated from the general prison population, although he would probably be entitled to mix with other AA classified prisoners.

55. The sentencing judge noted that there was evidence from Mr Hovey that another AA classified prisoner, Mr Lodhi, was presently at the HRMU. He stated that Mr Lodhi’s situation in custody gave “a fairly clear picture of the situation likely to be encountered by [the applicant]”. The sentencing judge stated that Mr Lodhi’s association with other people was controlled by HRMU staff, and that he could “mix with other people in the unit, but not with the general gaol population”. He stated that Mr Lodhi was able to “mix with certain other inmates on a daily basis during the period that he is out of his cell”, which was approximately between 6 and 7 hours per day, and that he was “entitled to use facilities such as the running track and the gymnasium”. He stated that Mr Lodhi had a television in his cell and “limited access to a computer to enable him to undertake educational courses”. He stated that he was able to use the basketball court at the prison and the library.

56. The sentencing judge noted that Mr Lodhi did not have access to DVDs or CDs and was required to take his meals in his cell and was provided with paper plates and plastic cutlery. He stated that Mr Lodhi was entitled to two visits per week, each of one-hour duration. He stated that Mr Lodhi could make telephone calls, although “checks are made in relation to the people to whom he speaks”, and, with the exception of privileged communications, those calls are recorded.

57. The sentencing judge concluded that, in those circumstances, there were “restrictions placed on an AA prisoner that are not imposed on others in the general prison population”. He stated that the restrictions, “while no doubt onerous to a degree”, were “certainly less” than those that the sentencing judge considered likely to be imposed on Mr Lodhi when he sentenced him in 2006. He stated that he proposed to take into account the likely conditions of incarceration, but did not consider that they were “so onerous as to warrant any significant reduction in the sentence”. He stated that he proposed to give a “modest recognition” in the sentence to the conditions of incarceration, which would extend to the applicant’s pre-sentence incarceration as well as the conditions likely to be experienced after sentence.

58. In those circumstances, the sentencing judge imposed the sentences to which I have referred at [4]-[6] above.

The confidential judgment

69. As I have noted at [55] above, the sentencing judge delivered a confidential judgment dealing with the question of the applicant’s assistance to the authorities. The judgment dealt with the nature of the assistance provided and the assessment by the authorities of its value. The following paragraphs discuss the matters addressed by the sentencing judge in that judgment.

70. [PARAGRAPH REDACTED]

71. [PARAGRAPH REDACTED]

72. [PARAGRAPH REDACTED]

73. The sentencing judge stated that this was the basis upon which he came to the view as to the appropriate combined discount for the guilty plea and assistance to the authorities.

Should the applicant be permitted to seek leave to appeal out of time?

a   The evidence

74. The applicant and his solicitor, Mr Moustafa Kheir, each filed affidavits in support of the application.

75. In his affidavit of 20 December 2017, the applicant stated that, after he had been sentenced, he retained a firm of solicitors, Lawyerscorp, to represent him on State charges relating to firearm offences as well as his appeal on sentence in relation to the offences to which he pleaded guilty.

76. The applicant stated that, by some point in April 2009, he assumed that an appeal against his sentence had been filed by his lawyers, since he began receiving letters from Legal Aid advising that his grant of aid for his appeal had been extended. He annexed to his affidavit a letter from Legal Aid in 2010 indicating that an extension of Legal Aid was granted. However, that grant was limited to retaining junior counsel to advise on the merits of an appeal as well as the preparation for presenting an appeal.

77. The applicant stated that he was “anxious” to progress his appeal but, due to the conditions of his incarceration, he suffered a number of difficulties in providing “material instructions” to his solicitor. He annexed what he described as “diary entries” recording the difficulty he had in contacting his solicitor and other problems he had in obtaining documents.

78. The applicant stated that, due to the failure to progress his appeal, he withdrew his instructions to Lawyerscorp and decided to instruct new solicitors. In that context, he said that he retained a Mr Nicholas Hanna of Hanna Legal to advise on his appeal. Annexed to his affidavit was a letter from Legal Aid dated 11 January 2013 authorising the transfer of the grant of legal aid to his new solicitor.

79. The applicant stated that Mr Hanna instructed counsel to provide “merits advice” in relation to his appeal. He stated that he was able to speak with counsel in conference and that he instructed him that he “wished to assist in the preparation of grounds and submissions with respect to the appeal”. He stated that, at that time, he became aware that Lawyerscorp had not lodged a notice of intention to apply for leave to appeal on his behalf and that he was “very frustrated” as to the lack of progress.

80. He said that he received a response to a letter outlining his concerns which he wrote to counsel in November 2012. He said that counsel informed him that his notice of intention to appeal was overdue and that, as a result, he would simply lodge a notice of intention to apply for leave to appeal together with the grounds of appeal and submissions on appeal. He stated that counsel assured him that there were “valid reasons” for the delay.

81. Subsequently, he stated that counsel had advised him to await the outcome of an appeal lodged by Mr Khaled Cheikho, another one of the nine persons charged with the conspiracy offence with which the applicant was originally charged. He noted that the judgment in that appeal was handed down on 12 December 2014.

82. The applicant said that, in February 2015, the laptop computer that was provided to him while he was in custody broke down. He stated that he had been using that computer to draft submissions and requested that it be replaced, but he said that he did not receive a new laptop until February 2016.

83. The applicant stated that, from February to December 2015, he made “numerous and regular attempts” to contact his counsel. He stated that he left “many messages” on counsel’s mobile phone expressing his concern regarding the delay in his appeal. He stated that he did not receive a response, and came to the view that his counsel was not progressing his appeal and decided to retain different legal representatives.

84. The applicant stated that, on 19 February 2016, his grant of Legal Aid was assigned to Mr Kheir. He stated that, on 26 May 2016, Mr Karnib (presumably, an employee of Mr Kheir) attempted to file a notice of intention to appeal, but was refused filing in the registry. He stated that, since that date, his solicitors had been “attempting to obtain various restricted judgments and materials tendered” in the proceedings relating to Mr Touma for the purpose of prosecuting the ground of a “justifiable sense of grievance” when his sentence was compared to the sentence imposed on Mr Touma.

85. Mr Kheir summarised the work which he had done on behalf of the applicant since his retainer on 19 February 2016. It is unnecessary to deal in detail with his affidavit, except to note that, on 26 May 2016, he attempted to file a notice of intention to appeal on behalf of the applicant, but filing was refused “due to the delay” in the matter and he was told that the grounds of appeal and the submissions on appeal should be filed alongside the notice of appeal and an application for an extension of time, stating the reason for the delay.

86. Having regard to the contents of the affidavit, it seems that Mr Kheir has attempted to prosecute the matter with reasonable diligence since the time that he was retained.

b   The submissions

87. The applicant pointed to the fact that whether an extension of time is to be granted is a matter to be determined by consideration of what the “interests of justice” in a particular case require. He submitted, correctly, that this was not the first case where an application for an extension of time to apply for leave to appeal had been made after a lengthy delay.

88. The applicant submitted that the evidence established that it was always his intention to lodge an appeal, but that he was first advised he should await the outcome of the trial of the State charges against him, and then, when he retained his second set of legal advisers, that he should await the outcome of the appeal brought by Mr Cheikho and his other formerly alleged co-conspirators. He submitted that he had believed that a notice of intention to apply for leave to appeal had been filed in 2009. He referred to the difficulties outlined in his affidavit in contacting both his first and second set of solicitors, and the difficulties that Mr Kheir faced in prosecuting the appeal once he had been retained. The fact that the latter difficulties were encountered was supported by the affidavit of Mr Kheir.

89. Counsel for the applicant submitted that the applicant was effectively “at the mercy” of his legal advisers. He also submitted that, unlike the case of an appeal against conviction, no prejudice would occur to the Crown by the delay. He accepted that the matter would ultimately turn on the view that the Court took on the merits of the appeal.

90. The Crown accepted that relevant to the exercise of the discretion was the prospects of success should the application for an extension of time be granted. The Crown submitted that the applicant did not have sufficient prospects of success to warrant an extension of time. The Crown submitted that the delay was not satisfactorily explained, and that there was an absence of any corroboration of the explanation given. The Crown described the “diary entires” attached to the applicant’s affidavit as “self-serving”. However, it was not disputed that most of those notes were contemporaneous.

87. The Crown submitted that the reasons for the delay were “forensic decisions” not to pursue the proceedings pending the outcome of the trial of the applicant’s State charges and then the appeal by his formerly alleged co-conspirators. The Crown did not appear to contend that this decision was not made in accordance with the advice the applicant received. Further, it is not inconceivable that the results of the formerly alleged co-conspirators’ appeal on sentence may have had some bearing on the applicant’s position.

c   Consideration

92. In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32]-[33], it was made clear that the power to extend the time for the filing of a notice of intention to apply for leave to appeal conferred by s 10(1)(b) of the Criminal Appeal Act 1912 (NSW) and the Criminal Appeal Rules (NSW) was to be exercised by consideration of “the interests of justice”. The majority pointed out that relevant to that determination is the “prospect of success should the extension be granted”.

93. In the present case, there has undoubtedly been a lengthy delay. However, some evidence was given to explain the delay, essentially to the effect that, subject to legal advice, the applicant was always “anxious” to prosecute the appeal. Although the forensic choices which were apparently taken to delay the prosecution of the appeal had little merit, and certainly did not justify the failure to lodge a notice of intention to apply for leave to appeal, the evidence of the applicant was that this was the advice that he was given.

94. The Crown submitted that the applicant’s evidence was uncorroborated. That may be so, but it was not challenged, and at least in part, it was supported by the contemporaneous documentary material. Further, this is a case where the reopening of the sentencing proceedings would not in any way affect any particular victim.

95. Finally, there is the question of the applicant’s prospect of success. Full argument was heard on the merits of the application, and although I have ultimately come to the view that the applicant should fail, it could not be said that the grounds were unarguable.

96. Taking all of these factors into account, leave should be granted to appeal out of time.

Ground 1 – whether the applicant has a justifiable sense of grievance when his sentence is compared to that imposed on Mr Mazen Touma

a   The charges and sentence imposed on Mr Touma

97. Mr Touma pleaded guilty on 12 September 2008 to the following charges:

“(1)   Between about 5 April 2005 and about 24 October 2005, at Sydney in the State of New South Wales, Mazen Touma did an act, namely acquired substantial quantities of firearm ammunition, in preparation for a terrorist act, or acts.

(2)   Between about 5 April 2005 and about 24 April 2005, at Sydney in the State of New South Wales, Mazen Touma did an act, namely attempted to make one or more improvised explosive devices, in preparation for a terrorist act, or acts.

(3)   On or about 8 November 2005, at Sydney in the State of New South Wales, Mazen Touma possessed a thing, namely a collection of items including lengths of copper pipe, gun powder, 165 railway detonators, instructional notes and dismantled firearm ammunition, connected with preparation for a terrorist act, or acts, knowing of that connection.

(4)   On or about 8 November 2005 at Sydney in the State of New South Wales, Mazen Touma possessed a thing, namely a collection of documents, including electronic documents, images, videos and audio files, connected with preparation for a terrorist act, or acts, knowing of that connection.”

98. The sentencing judge for Mr Touma was the same as the sentencing judge for the applicant. He sentenced Mr Touma on Count 1 to a term of imprisonment for 14 years, commencing on 8 November 2005 and expiring on 7 November 2019. The sentence imposed for Count 2 was the same, to be served concurrently with the sentence imposed for Count 1.

99. The sentencing judge sentenced Mr Touma on Count 3 to a term of imprisonment for 8 years commencing on 8 November 2005 and expiring on 7 November 2013. The sentence imposed for Count 4 was the same, to be served concurrently with the sentence imposed for Count 3.

100. The sentencing judge fixed a single non-parole period for all four offences of 10 years and 6 months commencing on 8 November 2005 and expiring on 7 May 2016.

101. To consider the applicant’s appeal on the grounds of parity, it is necessary to have some regard to the remarks made by the sentencing judge in sentencing Mr Touma, which are reported as R v Touma [2008] NSWSC 1475.

b   The remarks on sentence for Mr Touma

102. The sentencing judge recorded that, at the time of the commission of the offence, Mr Touma was a “devout Muslim” who held the belief that “Islam throughout the world was under attack and that there was, as a consequence, a religious obligation to come to the defence of Islam and other Muslims”, that “‘Jihad’ was the primary means by which this religious obligation should be fulfilled”, and that “a significant and legitimate aspect of the fulfilment of this obligation was violent Jihad which involved the application of force and violence including, in certain circumstances, the killing of … persons who do not have the same fundamentalist beliefs”.

103. In relation to Count 1, the sentencing judge noted that there was a series of telephone conversations between Mr Touma and Mr George Lord for the purpose of arrangements being made for “the acquisition of significant quantities of ammunition”.

104. The first series of conversations took place in April 2005. Those discussions involved the purchase by Mr Touma of ammunition from Mr Lord and the terms of payment.

105. In May 2005, further conversations took place. In the first conversation, there was discussion between Mr Touma and Mr Lord about the use of a rifle, and Mr Lord provided assistance to Mr Touma on how to use the rifle. Mr Lord told Mr Touma to bring the rifle to him the next day and said that he would show him how to use it. There was no evidence about whether that meeting took place.

106. There followed further discussions between the two concerning the purchase of ammunition. This culminated in a conversation on 3 June 2005 where Mr Lord told Mr Touma that he had put the ammunition on the veranda of his house and that he should pick it up “as soon as possible”. On that day, Mr Touma attended Mr Lord’s premises. At approximately 10:40am, Mr Touma was observed to load boxes of ammunition into his van, which was parked directly outside Mr Lord’s premises. A short time later, Mr Touma left in a different van while his van remained outside Mr Lord’s premises. At 10:53am, Mr Touma called Mr Lord and said that there were only 15 boxes, not 16 boxes. At approximately 1:30pm, the police approached Mr Touma’s van, which was still stationary outside Mr Lord’s premises, and seized 15 boxes of ammunition containing 7,500 rounds of “7.62 x 39mm calibre ammunition”. The sentencing judge stated that this type of ammunition was used in “SKS” or “AK-47” type semi-automatic weapons.

107. There were then further conversations in September 2005 in which Mr Touma enquired of Mr Lord whether he had any “45 litre drums”. The sentencing judge noted that these enquiries were in fact about obtaining ammunition.

108. The sentencing judge also noted that, in the course of the execution of a search warrant at Mr Touma’s premises on 8 November 2005, the following items were located:

“(a)   3 boxes of ammunition containing:

• 1 box of PMC El Dorado Starfire brand, 20 x .40 calibre pistol cartridges;

• 1 box of Federal Brand 20 x .40 calibre pistol cartridges;

• 1 box of Winchester Brand .222 magnum rifle cartridges;

• 3 x PMC precision made pistol cartridges 50 PK centre fire;

• 40 Boxes of ‘Bushman Field’ shotgun shells;

• 1 box Winchester centre fire cartridges (9mm Luger 124 GR).

• (b)   1 Glock Pistol box.”

109. So far as Count 2 was concerned, the sentencing judge noted that a conversation took place between Mr Lord and Mr Touma on 9 April 2005 relating to the making of an improvised explosive device (IED). He noted that, on 25 April 2005, Mr Touma inquired of a friend about how to seal the end of a copper pipe. It was noted that, at the time of execution of the search warrant at Mr Touma’s premises on 8 November 2005, a notebook was found, including the following entry in the handwriting of Mr Touma,:

“Bearings ball, salt, firecracker powder/thick one, electric cord/firecracker cord, batteryies [sic], sealed with cotton [sic] and compress good, gun powder, uraic [sic] acid.”

110. Also found at the premises were 13 rounds of ammunition which had been cut in half with the gunpowder removed.

111. In relation to Count 3, the sentencing judge noted that, at the time of execution of the search warrant at Mr Touma’s premises, the following items the subject of the count were seized from the garage:

“(a)   a plastic box containing nails, 2 x 500 gram containers containing a total of approximately 800 grams of gun powder, various tools, crimped copper pipe, lead sinkers, 13 projectile pieces from sawn off shotgun, 13 sawn off bottom pieces from cartridge with primers unstuck and a quantity of .45 calibre ammunition;

(b)   165 Railway Detonators;

(c)   one crimping plier set.”

112. In relation to Count 4, the sentencing judge noted that it related to “extremist and instructional material” falling into three categories. The sentencing judge stated that the first category related to “seized media” comprising a number of “image files, video files, document files and audio files”. He stated that they included images of “Mujahideen training and firing weapons” and “a number of explosions occurring during the Iraq conflict in 2005” which were described as “punishment for challenging the Muslim nation”. There were also images of beheadings and shootings. The sentencing judge stated that there was also “fundamentalist material of various kinds glorifying suicide bombers and praising Osama bin Laden”, and finally, that there were “instructional images dealing with sniper training, nuclear, biological and chemical warfare, and instructions on preparing firing systems, and the like”.

113. The sentencing judge described the second category as “seized media” relating to “files located on a number of separate disks”. He stated that they included material extolling “the virtues of martyrdom, fundamentalist concepts regarding jihad, and various instructional material relating to military and weaponry matters”. He stated that there was also religious material on the “methodology necessary to establish the Islamic state worldwide, and material highly critical of the United States”.

114. The sentencing judge stated that the third category of “seized images” related “essentially to video files of beheadings, Mujahideen training and al-Qaeda instructional material, including assembly and detonation of an IED”.

115. The sentencing judge set out the principles concerning the sentencing of terrorist offenders in a similar fashion to the manner in which he set them out in his remarks on sentence in relation to the applicant.

116. The sentencing judge then considered Mr Touma’s subjective circumstances. He noted that Mr Touma was a 28 year old man, who had been in custody since the time of his arrest, and was classified as an “AA” prisoner. He stated that Mr Touma was born in Lebanon, that his mother was of “Lebanese descent, that his father was of “Syrian descent”, and that both of them were of Muslim faith.

117. The sentencing judge stated that Mr Touma had “a generally happy and unremarkable background during his early years”. He stated that his family came to Australia in about 1986, although his father did not accompany them and in fact ultimately settled in Canada. He noted that Mr Touma attained his Higher School Certificate with a “rather modest” TER, stating that “his interest in his studies had diminished somewhat by the end of his schooling”.

118. The sentencing judge noted that, after Mr Touma left school, he began to associate with people who were described in a clinical psychologist’s report as “sub-cultural peers”, but which the sentencing judge stated were “classically referred to as ‘drop-outs’”. He noted that Mr Touma began to use cannabis. He stated that Mr Touma reached a stage where he was “abusing significant quantities” of the drug and was “regularly substance affected”, but was still able to find work as an uncertified tradesman.

119. The sentencing judge noted that Mr Touma married when he was 20 years old, and that his bride was 18 years old and of “Greek descent”. He noted that there were two sons born to the marriage. The sentencing judge stated that, at the height of his drug abuse, Mr Touma was approached by a neighbour who “encouraged him to address his drug problem”, and Mr Touma then began to attend the Lakemba Mosque, where the sentencing judge said that there was “a programme for individuals who were affected in the way he was by drugs or alcohol”. The sentencing judge noted that, according to Mr Touma’s account (presumably) to the clinical psychologist, Mr Champion, there was “a strong religious element involved in this treatment, but it was not of a political or religiously extremist bent”. The sentencing judge noted that the psychologist said that Mr Touma returned to his employment with “a stronger grasp of the tenets of his faith, and spoke of committing to his religion on a consistent basis”. At about that time, his wife converted to Islam and began to wear Islamic clothes.

120. The sentencing judge stated that the events of 11 September 2001 in the United States “changed things radically” for Mr Touma. He stated that “[a]ll the young Muslims at the mosque had begun to become embroiled in politics” and were “being encouraged by a number of the clerics”. The sentencing judge noted that Mr Touma told Mr Champion, of the “perception that he and all Muslims were at risk” and that he himself was “abused and called ‘Osama bin Laden’ and a ‘terrorist’ by non-Muslim workers he encountered”. The sentencing judge also noted that, “[a]t a more abstract level, [Mr Touma] perceived the threat in terms of all Muslim people being under attack”. He noted that Mr Touma spoke to Mr Champion about becoming “radicalised” and of his religious faith taking on a “much harder and more uncomprising edge”.

121. The sentencing judge noted that Mr Touma told Mr Champion that he was now “over it” and taking a “more balanced approach” to his religion and the political views which flowed from it. He told Mr Champion that he “no longer accepted the notion of violent jihad”, and indeed, claimed that it had never been his intention to take human life. Consistently with his approach in relation to sentencing the applicant, the sentencing judge took the view that he had to treat those statements with considerable caution where Mr Touma had not himself given evidence of his present state of mind.

122. The sentencing judge noted that Mr Champion conducted a number of tests in relation to Mr Touma and reported that he could not “exclude the possibility of a neurological contribution to the observed pattern of cognitive deficits”.

123. In dealing with the objective criminality of the offences, the sentencing judge stated that the more serious offences were those set out in the first two counts. He stated that the material which was the subject of Count 4 shed “considerable light on the intentions properly to be inferred from the actions relating to” Counts 1 and 2. The sentencing judge stated that, “[c]ollectively, the material which was in the possession of [Mr Touma] advocated “a hatred of all those persons … who do not share extremist views” and that it propounded “a detestation of democratic government and social liberalism”, and the notion that “Muslims are obligated to pursue a violent form of jihad to undermine and overthrow liberal democratic societies and to replace them with Islamic rule and Sharia law”. The sentencing judge stated that those were the intentions and state of mind “which underlay the actions of [Mr Touma] in acquiring ammunition, and in attempting to create an explosive device or devices”.

124. The sentencing judge stated that those observations needed to be “tempered and moderated” by the recognition that he could not be satisfied beyond reasonable doubt that Mr Touma “ever intended, in committing the offences, to use the weaponry or explosive devices to directly bring about the loss of human life”. However, he said that it must also be observed that “the detonation of a homemade explosive device always carries with it the possibility that human life will, or may be endangered, or at the very least threatened, in the execution of a plan to destroy or damage property”. The sentencing judge stated that, while he accepted that Mr Touma’s attempt to make one or more explosive devices was “both ham-fisted and amateurish”, “nevertheless the attempts he made showed that he was prepared to seek out and use the experience of others who might, because of their knowledge, help him to achieve his aims”.

125. The sentencing judge accepted that the offences were “admittedly preparatory in nature”, but stated that the circumstances of their commission nevertheless established a “serious level of criminality”.

126. The sentencing judge also stated that the fact that there was only one firearm found in the Mr Touma’s possession in November 2005, which did not match the ammunition he had purchased, did not “significantly diminish the level of criminality”, as it was clear that Mr Touma was able to access firearms through other people. The sentencing judge further stated that, in any event, the ammunition and other materials he acquired were available for others to use, even if Mr Touma did not ultimately make use of them.

127. The sentencing judge stated that the sentence to be imposed for each of Counts 1 and 2 must “be substantial so as to reflect the important principles of punishment, general deterrence and denunciation”. He noted that both parties agreed that a discount of 25% should be allowed for Mr Touma’s willingness to facilitate the course of justice. In that context, he noted the circumstances in which the plea was entered, which I have set out in my summary of the sentencing judge’s remarks in sentencing the applicant at [53]-[54] above. He also noted that, during the pre-trial period, the legal representatives for Mr Touma made concessions which he said “may properly be regarded as steps taken, short of a plea of guilty, to facilitate the trial in a real and commendable manner”. He noted that this was in “marked contrast to the stance taken by a number of the other accused” and pointed to “a genuine and real intention” to facilitate the course of justice.

128. The sentencing judge accepted that “some allowance can and should be made for the fact that the pleas of guilty may be taken, to a degree, to express remorse and acceptance of responsibility” and to be “a drawing back by [Mr Touma] from the extremist beliefs that motivated the commission of the offences”. However, he said that considerable caution needed to be taken about such a matter because Mr Touma had not given evidence before him. The sentencing judge stated that, at the very least, it could be said that he was “by no means satisfied beyond reasonable doubt that [Mr Touma] has refused to budge from his former extremist position”.

129. The sentencing judge dealt with the circumstances of Mr Touma’s incarceration as an AA prisoner in a similar fashion to the manner in which he dealt with the issue with respect to the applicant.

130. The sentencing judge declined to make any allowance for the effect of Mr Touma’s incarceration on his mother and his two children.

c   The submissions

131. The applicant pointed to the fact he and Mr Touma were both originally charged with the same offence and a “significant” proportion of the facts which would have been relied upon to establish the conspiracy were relied upon as objective facts in the sentencing hearing. In that context, counsel for the applicant also pointed out that the gravamen of the offences was not the particular actions which the person undertook, but rather, that those actions were done “in preparation for a terrorist act or acts”.

212. The submissions also referred to the minutes of a SORC meeting on 8 December 2015, recommending a change in the applicant’s classification which was rejected by the Commissioner of Corrective Services.

213. In relation to recreation and education, the submissions referred to a series of case notes concerning the applicant’s attempts to undertake further education courses and their rejection. It should be noted that these case notes cover the period 2015 to 2016.

b   The submissions on the admissibility of the additional evidence

215. The applicant did not appear to contend that the conclusions reached by the sentencing judge which I have set out at [64]-[67] above were not open to him on the evidence before him. Rather, he submitted that there was now available a body of evidence demonstrating that his conditions of custody were far more onerous than the sentencing judge was led to believe and which warranted far greater consideration in mitigation of sentence.

216. The applicant submitted that, while in the ordinary course of events an appellate court must consider appeals against sentence on the basis of the material available at first instance, fresh evidence is admissible to establish an error of law or avoid a miscarriage of justice. He accepted that he was not relying on a “change in his conditions”, which he accepted would not be admissible to prove error at first instance, as set out in his written submissions at [116], citing Khoury v The Queen [2011] NSWCCA 118; (2011) 209 A Crim R 509 at 528 (Khoury), but rather, he submitted that the sentencing judge was “left in a state of imperfect knowledge as to what the applicant’s conditions of custody were going to be”. He stated that, in the present case, the parties were “entirely dependent on the evidence from Mr Hovey as to the conditions of custody” to which the applicant would be subjected. He submitted that this information had proved to be incorrect.

217. Counsel for the applicant submitted that the sentencing judge was told about “a progression path no doubt involving education”, but submitted that the case notes showed that those pathways were not open until 2015. He pointed to the fact there was “a plan or policy that these inmates were to be offered [a] multi-disciplinary approach which involved education”, but that the education officer’s position was not filled until 2013. He submitted that the education officer was only there for 4 hours per week and was only capable of monitoring the library. He submitted that the education courses available only consisted of literacy and numeracy courses for which the applicant, even in 2004, had no need. In these circumstances, he submitted that the position in the present case was similar to that considered by the Court in Turkmani v The Queen [2014] NSWCCA 186 at [63]-[65], [82] (Turkmani).

218. Counsel for the applicant submitted that the sentencing judge was not told, for example, that the progress from “AA” to “EHRR” classification was going to be dependent not only on what the offender did, but also the “assessed national security threat level”, which was something completely independent of the applicant. He pointed out that SORC recommended the applicant’s move from the HRMU, and, in November 2017, stated that his “greatest risk factor” was being kept there. He submitted that the evidence established that he remained there, first, because of the “national security threat level”, secondly, because there was not “the capability to move him” and third, because the Commissioner of Corrective Services “rejected the advice of his own administrative bodies set up for the specific task of assessing where this man should be”.

219. The Crown submitted that the additional evidence did not seek to address the custodial conditions which existed at the time of sentence, but rather, it addressed the present conditions faced by the applicant. It was submitted that most of the contents of the applicant’s affidavit related to changes in circumstances since March 2015 when the applicant was designated an EHRR classified inmate, and otherwise “occurred over time”. It was submitted that the evidence did not support the proposition that the applicant was not relying upon a “change in his conditions” of incarceration.

220. In its written submissions, the Crown pointed to five matters referred to by the sentencing judge relevant to the conditions of the applicant’s incarceration which it submitted had not materially changed. First, “the applicant’s progression past ‘AA’ classification would be determined by a number of factors, including the criteria for designation as an AA classified prisoner”. Second, the applicant would be held at the HRMU and would be “segregated from the general prison population”, but might be “entitled to mix with other AA classified prisoners”. Third, “the applicant would have between six to seven hours a day outside his cell”, noting that the applicant accepted that this time could vary, but that it was usually more like five hours a day, which the Crown described as a “marginal difference”. Fourth, the applicant would have access to some facilities, including “limited access to a computer and educational courses, basketball court and a library, as well as the ability to make phone calls”. It was submitted the applicant had access to those facilities, even though their availability varied. Fifth, the applicant would not have access to DVDs or CDs, and he would have to take meals in his cells, which would be provided with paper plates and cutlery.

c   Consideration of the admissibility of the additional evidence

221. The principle which the applicant sought to invoke in support of his application to adduce the evidence is commonly said to be derived from what was said by King CJ in R v Smith (1987) 44 SASR 587 (R v Smith), where his Honour explained the basis on which evidence can be led of events occurring post-sentence on grounds other than for the limited purpose of resentencing. His Honour made the following remarks at 588:

“While the evidence sought to be admitted on this appeal in a sense establishes the occurrence of events occurring after the passing of sentence, it does so for the purpose of explaining the full extent and implications of the appellant's condition of health which existed at the time of sentence. I think that the authorities show that it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence.”

222. In Turkmani at [66], Beech-Jones J helpfully summarised examples where the principle has been held to apply:

“[66]   Three examples of the application of this principle are as follows. Firstly where the offender was only diagnosed as suffering from a disease or condition after sentence but was infected or affected at the time of sentence (eg HIV/AIDS as in Bailey v R (1988) 35 A Crim R 458 at 462). Secondly where, although symptoms of a particular condition may have been present, their significance was not appreciated at the time of sentencing (Iglesias v R [2006] NSWCCA 261 (‘Iglesias’); see Springer v R [2007] NSWCCA 289; 177 A Crim R 13 at [3] per McClellan CJ at CL) (‘Springer’). Thirdly where a person was sentenced on the expectation that they would receive a particular level of medical care and attention in custody but they did not (R v Keir [2004] NSWCCA 106; Springer id).”

223. In that case, the Court was prepared to apply the principle where, although the sentencing judge received no assurances as to the standard of medical treatment the offender would receive in prison, the sentencing judge was entitled to assume, and probably did assume, that the offender would receive a reasonable level of medical support. In the circumstances, evidence that he had not was held to be admissible.

224. Nonetheless, as was made clear by Simpson J in Khoury, the principle in R v Smith does not extend to permit the admission of evidence of circumstances which did not exist at the time sentence was passed. This is because a sentencing judge is entitled, and indeed, bound to sentence on the facts disclosed in the evidence before him or her. If a particular fact or circumstance did not exist at that time, then there is no error from which an appeal can lie. The principle was explained by Simpson J in Khoury as follows at [110]-[113]:

“[110]   A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the opinion that some other sentence is warranted in law and should have been passed. In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, 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. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday [1981] 2 NSWLR 177.

[111] The issue has arisen, and the principle I have stated has been applied, in a number of cases concerning applicants who have, post sentencing, provided assistance to prosecution authorities: Scullion v The Queen (unreported, Court of Criminal Appeal, NSW, No 60105 of 1991, 15 July 1992); JM v The Queen [2008] NSWCCA 254; R v Willard (2001) 120 A Crim R 450; Munday.

[112]   The same principle would, no doubt, be held to apply where additional evidence of a medical nature is sought to be adduced on appeal, but where the relevant condition did not exist at the time of sentencing.

[113] Too rigid an application of the principle clearly has potential to be the cause of injustice, and has led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence. Where it is held that the facts or circumstances of which evidence is sought to be adduced existed at the time of sentencing, even if not known, or imperfectly understood, at that time, then, where the interests of justice have so dictated, the Court has admitted the additional evidence (sometimes properly categorised as fresh evidence) in order to correct the misunderstanding. It appears that the justification for this is that, although on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances. This proposition is sometimes traced back to the decision of the Supreme Court of South Australia in R v Smith (1987) 44 SASR 587 at 588; 27 A Crim R 315 at 316. In all cases the power to admit the additional evidence is a discretionary one; ‘proper grounds’ must be established as a foundation for the exercise of the discretion to admit the evidence: R v Lanham [1970] 2 NSWR 217.”

225. The principle has been held not to apply when custodial conditions change as a result of executive action: R v Munday [1981] 2 NSWLR 177 at 178.

226. I do not think that anything was said in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 to the contrary to these propositions. That case involved the issue of whether evidence could be led on resentence which was contrary to the manner in which the case was conducted at the original sentencing hearing. In that case, the Court stated at [14] that injustice does not necessarily arise “by reason of the refusal to allow an appellant to run a new and different case on the question of re-sentence”.

227. As I have indicated at [216] above, the applicant did not dispute these propositions.

228. The difficulty which confronts the applicant is that the great bulk of the additional evidence relates to circumstances which came into existence at the time he was reclassified as an EHRR AA inmate. That is clear from those parts of the affidavit to which I have referred at [159]-[196] above. It is also clear from his affidavit that there was a significant change in custodial conditions after Mr Touma and Mr Lodhi left the HRMU, which was after the applicant was sentenced. The applicant stated in his affidavit that Mr Lodhi was moved from the HRMU in about 2012, as I have set out at [175] above. Further, the applicant’s complaints about the effect of his reclassification relate to events which occurred in 2016 and 2017, far removed from the period in which he was sentenced. As I have pointed out at [210]-[214] above, the material annexed to Mr del Monte’s affidavit relates to the period from 2015 onwards.

229. So far as access to education is concerned, the applicant stated that, until 2012, he was unable to enrol in any education course due to his ongoing court matters. He also said that, in 2012, shortly after Mr Lodhi left the HRMU, changes were made regarding long-distance education. Once again, the evidence does not seem to relate in any way to the conditions which existed at the time of sentence.

230. In relation to the absence of a deradicalisation programme, the sentencing judge did not take that into account one way or another. Unlike the situation in Turkmani, it could not be assumed that the judge sentenced on the basis of a belief that a deradicalisation programme was available. So far as his physical disability was concerned, the sentencing judge expressly took that into account, as I have noted at [63] above, and stated that this would make his incarceration “more difficult”.

231. The only two areas in which the applicant directly challenged in this Court the accuracy of what the sentencing judge had been told about the likely conditions of his incarceration were the number of permitted visits per week (he had been allowed only one rather than two) and the use of a gymnasium (this was not available to him). It should be noted that Mr Hovey’s evidence before the sentencing judge on these subjects was a description of the conditions under which Mr Lohdi was serving his sentence, as a guide to the conditions likely to apply to the applicant: see [65] above and the remarks on sentence at [154]-[158]. Mr Hovey’s evidence was not challenged on either issue, although the applicant had been at the HRMU for some time prior to the sentencing hearing. In the circumstances, as a matter of discretion, I would not admit this evidence: cf Khoury at [113], [117].

232. In summary, what the evidence establishes, subject to the two exceptions to which I have referred, is not that the sentencing judge failed to appreciate the conditions of incarceration as they existed at the time of sentence, but rather that those conditions have changed as a result of actions by the executive. In these circumstances, the evidence does not fall within the principle set out in R v Smith. The evidence is thus irrelevant and should be rejected.

233. Thus, the affidavit of the applicant on this issue and that of Mr del Monte, having been objected to on the basis of relevance, are rejected, as is the affidavit of Mr Piazza in response to those affidavits.

234. It is now convenient to turn to the submissions on ground 2.

d   The submissions on ground 2

235. While recognising that they were not separate grounds of appeal, the applicant particularised seven matters which he submitted would lead the Court to conclude that the sentence imposed on him was “unreasonable or plainly unjust”: see Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22] (Dinsdale).

236. The first matter was that “the starting point was too high”. In his written submissions, the applicant noted that the sentencing judge was not prepared to find that, in committing the offences, the applicant had the intention to “directly bring about loss of human life”. It was submitted that the conduct, while serious, was at “a materially lower level than that assessed by the sentencing judge”. He submitted that the “quantities of chemicals and ammunition actually obtained” was not such as to warrant “such a serious assessment of objective criminality”, and that, unlike Mr Touma, he did not try to make an explosive device. He submitted that the sentencing judge “placed too much emphasis on the particular type of terrorist motivation”, namely, “radical fundamentalism”.

237. The second matter was that the sentencing judge made an error of fact in stating that the ammunition which the applicant procured was “capable of use in SKS and AK-47 military assault rifles”. Although it was not a separate ground of appeal, the applicant submitted that it was an “error of fact” in the “House v The King sense”, and that the Court should intervene to resentence the applicant.

238. The third matter was based on the discount for assistance to the authorities. In this context, the applicant referred to the remarks of the sentencing judge in the confidential judgment. The following paragraphs discuss the applicant’s submissions on the matters contained in that judgment.

239. [PARAGRAPH REDACTED]

240. [PARAGRAPH REDACTED]

241. The fourth matter was the plea of guilty. The applicant submitted that the plea of guilty saved time. He noted that it was entered a week before the trial. and that, in those circumstances, he submitted that “a combined discount of 15% for both the plea and assistance” paid “insufficient regard” to both matters.

242. The fifth matter related to the question of remorse, contrition and “pulling back from extremist beliefs”. The applicant referred to the remarks of the sentencing judge to which I have referred at [58]-[61] above. He submitted that, despite the reference by the sentencing judge to the absence of “hard evidence”, the applicant had spoken to Ms Robilliard and that she had been able to come to a concluded view, as I have set out at [38] above.

243. The applicant submitted that, under s 16A(2)(f) of the Crimes Act 1914 (Cth), the Court must take into account the degree to which a person had showed contrition for the offence by “taking action to make reparation for injury resulting from the offence” or “in any other manner”. He submitted that this permitted the Court to take into account “any form in which evidence of remorse has been expressed”, and that it should “not have been limited, or its weight diminished, simply because the applicant did not give evidence”. [FINAL SENTENCE REDACTED].

244. The applicant noted that the sentencing judge “did not reject evidence of remorse on the part of the applicant”, but that he was “not prepared to place much weight on it” and was only prepared to allow a “modest recognition’, and even then only in the selection of the head sentence. He submitted that the same considerations which meant that “offenders who retain their extremist beliefs deserve heavy punishments” would lead to “significant reductions on penalty” for an offender where there is material suggesting “a move away” from such beliefs.

245. The sixth matter was hardship in custody. I have dealt with that in dealing with the admissibility of the additional evidence at [228]-[233] above.

246. The seventh matter was the applicant’s subjective case. The applicant referred to the remarks made by the sentencing judge to which I have referred at [62]-[63] above. He submitted that those remarks, which were made “[i]n the context of a judgment on sentence spanning some 173 paragraphs, and 50 pages”, showed that the sentencing judge, while “cognisant” of the subjective matters, paid them “very little regard”. Two things may be said about this submission. First, an arithmetical calculation of this nature provides little assistance in determining whether or to what extent the sentencing judge took the subjective matters into account. Second, it is factually incorrect. The summary of the subjective circumstances which I have set out at [23]-[38] above is taken from the remarks on sentence at [78]-[95]. The sentencing judge clearly had these matters in mind when he came to sentence the applicant.

235. The Crown submitted that to determine whether a sentence was “manifestly excessive”, it was necessary to view it from “the perspective of the maximum sentence prescribed by law” for the offence, the “standards of sentencing customarily observed” with respect to the offence, the seriousness of the offence, and the personal circumstances of the offender.

236. The Crown submitted that the sentencing judge was in a “unique position” to consider the sentences imposed in other cases because he was the judge who had sentenced both Mr Touma and Mr Lodhi. The Crown submitted that most of the applicant’s complaints related to “discretionary matters”, and that it was not contended that the conclusion reached by the sentencing judge was not open to him. It was emphasised that what the applicant needed to establish was whether the sentences were “outside the range properly available”.

237. The Crown noted that the applicant did not submit that the sentencing judge applied incorrect sentencing principles. It was submitted, referring to Lodhi and R v Martin [1999] 1 Cr App R (S) 477, that the common sentencing factors were “punishment, protection of the community, deterrence and denunciation”. It was pointed out that s 19AG of the Crimes Act 1914 (Cth) requires that the non-parole period imposed be at least 75% of the head sentence.

238. In relation to the submission that the starting point for the sentence was too high, the Crown noted that the sentencing judge accepted that the applicant did not intend to “directly bring about the loss of human life”, and further accepted that the offending did not fall into the worst category. However, it was submitted, referring to Lodhi at [243], that a “settled intention to cause an explosion puts an offence high on the scale of gravity as does an offence which threatens the daily lives and livelihood of many people”.

239. The Crown submitted that the applicant was incorrect in contending that the “type of terrorist motivation was irrelevant to objective criminality”. It was submitted that the applicant’s “state of mind as to the intended acts” was an “essential element of the offences” and that it was relevant in sentencing that the motivation was a “radical and extreme form of Islam”.

240. In relation to the error of fact alleged by the applicant, the Crown submitted that the objective gravity was unaffected by the fact the ammunition acquired could not be used in “SKS” or “AK-47” rifles. It was submitted that the sentencing judge’s assessment of the gravity was based on “the nature of the actions and the range of conduct carried out” by the applicant. It was submitted that the range of conduct was not affected by whether the ammunition about which the applicant made inquiries was capable of being used in some weapons and not others. It was submitted that, whatever be the case, the applicant’s conduct, together with his possession of loaded firearms, disclosed that “any terrorist acts would involve serious damage to property, endangerment to life and a risk to public safety”. Further, the Crown submitted that the evidence established that one of the enquiries made by the applicant related to two cases of “7.62 x 39mm calibre ammunition” which could be used in “SKS” and “AK-47” rifles.

241. So far as the applicant’s assistance to the authorities was concerned, the Crown pointed to s 16A(2)(h) of the Crimes Act 1914 (Cth), which provides the Court must take into account “the degree to which [the offender] has co-operated with law enforcement agencies in the investigation of the offence”. In the written submissions, it was pointed out that the sentencing judge not only considered the applicant’s assistance, but gave it weight as part of a combined discount. It was submitted that the sentencing judge gave a combined discount consistently with authority and his assessment reflected a “conventional and unremarkable exercise of discretion”.

242. In relation to the applicant’s plea of guilty, the Crown pointed out that the applicant did not attempt to enter a plea until after a lengthy committal hearing and the conclusion of pre-trial proceedings after 8 months of argument. It was noted that there had been no earlier approach to enter a plea.

243. The Crown accepted that as a result of the decision of this Court in Xiao, the Court was entitled to take the utilitarian value of a plea of guilty into account. However, it was submitted that, while the sentencing judge considered the plea reflected the applicant’s “willingness to facilitate the course of justice”, the sentencing remarks reflected the fact that he took the utilitarian value of the plea into account. It was submitted that the situation was similar to that in Xiao, where the Court stated at [369] that, in the circumstances of that case, it was “immaterial whether the discount is described as being given for facilitating the course of justice or for its utilitarian value”.

244. So far as the question of remorse, contrition and “pulling back from extremist beliefs” was concerned, the Crown submitted that the primary judge correctly approached the evidence of Ms Robilliard with caution, as it contained untested and unsworn statements made to her by the applicant. It was stated that this approach was consistent with the principles laid down in cases such as R v Qutami [2001] NSWCCA 353 at [58]-[59] (Qutami).

245. The Crown submitted that the sentencing judge “did have regard to Ms Robilliard’s report and gave it appropriate weight”. It was noted that the sentencing judge rejected the contention that there was no evidence that the applicant had not retreated from his previous position and that he had determined that it warranted “moderate recognition” in the sentence.

246. In relation to the applicant’s subjective case, the Crown pointed to what was described as the “well-settled principles” that subjective circumstances such as rehabilitation and personal circumstances have “less weight” in offences of the nature of the ones in question. Nevertheless, it was submitted that the sentencing judge did also take these matters into account.

e   Consideration

259. The principles relating to this ground are well-established. For a sentence to be “manifestly excessive”, it must be “unreasonable or plainly unjust”: Dinsdale at [6], [22]. It is not sufficient that an appellate court may have a different view as to the appropriate sentence than the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. Nor is it sufficient that the result was “markedly different” from sentences that have been imposed in other cases: Wong at [58]; Hili at [59].

260. In that context, it must be remembered that, as was pointed out in Dinsdale, Wong and Hili, intervention is warranted only when the difference in view is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons: Dinsdale at [6]; Wong at [58]; Hili at [59].

261. In his submissions in support of this ground, the applicant has focused on what might be described as “difficulties” in the approach taken by the sentencing judge to individual matters. Although consideration of these matters may be helpful in analysing the question, they must not obscure the fact that the ultimate question for the Court is whether the sentence is manifestly excessive, in the sense of being “unreasonable or plainly unjust”.

262. As the Crown pointed out, it is important, in considering this ground, that the maximum sentence was life imprisonment for Counts 1 and 2 and imprisonment for a term of 15 years for Counts 3 and 4. This provides a clear indication of the seriousness with which these offences are to be regarded. The seriousness of the offences was recognised in Lodhi, where Spigelman CJ made the following remarks at [79]:

“[79]   The sentence imposed is a substantial one, particularly in view of the fact that there was no actual injury to persons or property. Nevertheless, as Price J emphasises, the provisions creating the offence are directed to preparatory acts and the seriousness with which Parliament regards such acts is manifest in the maximum penalty. By the extended range of conduct which is subject to criminal sanction, going well beyond conduct hitherto generally regarded as criminal, and by the maximum penalties provided, the Parliament has indicated that, in contemporary circumstances, the threat of terrorist activity, requires condign punishment.”

263. His Honour also referred at [89] with approval to the remarks of Lord Bingham CJ in R v Martin [1999] 1 Cr App R (S) 477 at 480 that, “[i]n passing sentence for the most serious terrorist offences, the object of the Court will be to punish, deter and incapacitate; rehabilitation is likely to play a minor (if any) part”, while stating at [92] that “incapacitation” should be understood in Australian law to be “encompassed by the element of ‘protection of the community’”.

264. In Lodhi, Price J also made the following comments at [243]:

“[243]   The purchasing of the chemicals and the making of a urea nitrate bomb are likely to be regarded as more heinous than the appellant’s conduct in this case. An intention to take human life is more heinous than an intention to cause significant damage to property: R v Roche (2005) 188 FLR 336 at [119]. But that does not lead to the conclusion that the appellant’s acts and intentions are not appropriately regarded as being of high level, although falling short of the worst category of a preparatory act. A settled intention to cause an explosion puts an offence high on the scale of gravity as does an offence which threatens the daily lives and livelihood of many people: Roche at [119]. An act done in preparation for such a terrorist act is a very serious offence.”

See also Elomar v The Queen [2014] NSWCCA 303 at [715]-[716], [781] (Elomar); Director of Public Prosecutions (Cth) v MHK (No 1) (2017) 52 VR 272; [2017] VSCA 157 at [54]-[55] (MHK); Director of Public Prosecutions (Cth) v Besim [2017] VSCA 158 at [114]-[116] (Besim).

265. The first submission of the applicant was that the starting point for the sentence was “too high”. That seemed to be based on two propositions: first, that the sentencing judge incorrectly assessed the seriousness of the offence having regard to the quantity of ammunition and chemicals obtained, and in reaching his assessment, he placed too much emphasis on the applicant’s motivation; and second, unlike Mr Touma, the applicant did not attempt to make an explosive device.

266. The second proposition has already been dealt with in dealing with the question of parity. As I indicated at [151] above, the sentencing judge was entitled to conclude that the applicant’s offence was more serious than that of Mr Touma.

267. In relation to the seriousness of the offence, it has been consistently held that this is a matter for the sentencing judge: see, eg, Mulato v The Queen [2006] NSWCCA 282 at [46]. Further, the sentencing judge was entitled to regard the offence as “very serious”. The fact that some of the applicant’s attempts to obtain ammunition and chemicals were unsuccessful does not alter the fact that persistent attempts were made to obtain these items over a period of months for the purpose of using them in a terrorist act which, while not intended to cause loss of life, was, at the very least, intended to cause damage and destruction of property and consequent damage to human life. This conduct was explained by Price J in Lodhi at [243] to be conduct of a most serious nature. Further, the sentencing judge was entitled to take into account the extremist nature of the material which was the subject of Count 3 in considering the seriousness of the offences the subject of Counts 1 and 2.

268. I should add that, in considering this issue, I have had regard to the sentences imposed on the offenders in the two Victorian Court of Appeal decisions to which I have referred at [264] above, although no reference was made to these decisions during the course of the hearing. The limitation on the use that can be made of such cases was explained in Hil at [54]-[56] and in R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [26]-[28].

269. It suffices to say that the Victorian Court of Appeal decisions were successful Crown appeals involving young offenders, an 18 year old in the case of Besim and a 17 year old in the case of MHK. Both of these cases involved offences which, on one view, were more serious than those committed by the applicant, in that they involved the preparation for a terrorist act with the intention to kill. However, any comparison must take into account the relative youth of the offenders in these cases, the fact that in each case the sentence was increased as a result of a Crown appeal, and finally, the very generous discount given in respect of pleas of guilty in both cases.

270. In Besim, the Court indicated that, but for the plea of guilty, a sentence of 19 years and 3 months, with a non-parole period of 14 years and 3 months, would have been imposed, compared with the sentence which was ultimately imposed of 14 years, with a non-parole period mandated by statute of 10 years and 6 months,. In MHK, the Court imposed a sentence of 11 years, with a non-parole period of 8 years and 3 months, indicating that, but for the plea of guilty, the Court would have sentenced the offender to a term of imprisonment for 16 years with a non-parole period of 12 years. Further, so far as consistency of sentencing principle is concerned, the Court in MHK adopted the same approach to sentencing as did the Court of Criminal Appeal in Lodhi, citing the remarks made by Spigelman CJ and Price J with approval at [54]-[55].

271. In the circumstances, and subject to dealing with the other matters referred to below, I do not think it can be said the starting point of the sentence was “unreasonable or plainly unjust”.

272. The second matter was said to be an error of fact in stating that the ammunition was incapable of use in “SKS” and “AK-47” military assault rifles. This does not seem to me of particular assistance to the applicant, having regard to the finding that he did not intend to kill people. Further, as the Crown pointed out, the assessment of the gravity of the offence was not based on the use to which the ammunition could be put. The Crown was also correct in submitting that one of the applicant’s enquiries related to ammunition which could be used in such rifles. In my opinion, this error was immaterial.

273. So far as the third matter relied upon, assistance to the authorities, is concerned, I have dealt with that in my consideration of the question of parity of sentence with that of Mr Touma. As I indicated at [153] above, the discount which the sentencing judge allowed was one which was open to him. Further, the grant of a combined discount is an approach generally accepted to be correct: see R v A [2004] NSWCCA 292 at [27]; R v El Hani [2004] NSWCCA 162 at [65]-[66]; R v Z [2006] NSWCCA 342 at [90]-[91].

274. I have already dealt with the fourth matter, the plea of guilty, in dealing with the question of parity. As I indicated at [153] above, the sentencing judge was justified in only allowing a combined discount of 15% for both the plea of guilty and the applicant’s assistance to the authorities. In short, the discount reflected the fact that the plea was made extremely late and the assistance was extremely limited.

275. The fifth matter related to the question of remorse, contrition and “pulling back from extremist beliefs”. I have summarised the sentencing judge’s conclusion on this issue at [58]-[61] above. He did not entirely reject the evidence of Ms Robilliard, but rather, he gave it limited weight in concluding that there were some reasons to accept that the applicant had “retreated, at least to some degree, from the limits of his original extremist position”.

276. The sentencing judge’s approach to the statements made by the applicant to Ms Robilliard was consistent with authority: Qutami at [58]-[59], [79]; Alvarez v The Queen [2011] NSWCCA 33 at [58], [65]; Mun v The Queen [2015] NSWCCA 234 at [40]; Grabovac v The Queen [2018] NSWCCA 100 at [98]. The approach has been applied in sentencing for terrorist offences: see Elomar at [817]-[818]. Further, the question of whether an offender has resiled from extreme views which prompted the commission of an offence is an important consideration in the sentencing process. Sentencing judges should not have to rely on untested hearsay evidence to form their views on this issue.

277. Section 16A(2)(f) of the Crimes Act 1914 (Cth) does not compel a contrary conclusion. It requires a court to take into account “the degree to which a person has shown contrition for the offence … by taking action to make reparation for any injury, loss or damage resulting from the offence; or … in any other manner”. In my view, the latter statement does not require a sentencing judge to place any particular weight on untested statements made by an offender to a psychologist or other third party. The sentencing judge was thus entitled to deal with the question of remorse and whether the applicant had “moved away” from his extremist beliefs in the manner in which he did.

278. So far as the sixth matter, relating to the applicant’s hardship in custody, is concerned, the submissions going to this issue relied entirely on the additional evidence, which I have ruled at [232]-[233] above was inadmissible.

279. The final matter was the applicant’s subjective case. I pointed out at [246] above that, contrary to the applicant’s submissions, the sentencing judge set out the applicant’s subjective circumstances in some detail and plainly took them into account.

280. I have dealt with the various matters raised by the applicant in deference to his submissions and they disclose no error of principle by the sentencing judge. The ultimate question which remains is whether the sentence was “unreasonable or plainly unjust”. While the sentence was undoubtedly severe, the crimes themselves were very serious, carrying the sentence of life imprisonment in respect of two counts. The ammunition and chemicals were obtained for the purpose of a terrorist act which, while not intended to kill people, was calculated to damage property, endanger life and cause disruption and fear in the community in pursuit of extremist beliefs. Such acts warrant severe punishment. Taking all of the matters raised by the applicant into account, it does not seem to me that the sentence imposed was manifestly excessive.

Conclusion

281. I would make the following orders:

1. Extend the time for filing an application for leave to appeal to 1 May 2018.

2. Grant the applicant leave to appeal.

3. Dismiss the appeal.

4. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), order that paragraphs [70]-[72], [239]-[240] and the last sentence of paragraph [243] of this judgment be suppressed until further order on the grounds contained in s 8(1)(c) of that Act.

5. Order (4) is to apply throughout the Commonwealth.

282. HOEBEN CJ at CL: I agree with the Chief Justice and the orders which he proposes.

283. FAGAN J: I also agree with the Chief Justice and with the orders proposed.

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Decision last updated: 21 December 2018