CDirector of Public Prosecutions v Galea
[2020] VSC 750
•20 November 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL LAW DIVISION
S CR 2018 0235
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHILLIP MICHAEL GALEA |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2019: 14-18, 21-25, 28-31 October, 1, 6-8, 11-15, 18-22, 25-29 November, 2-5 December |
DATE OF SENTENCE: | 20 November 2020 |
CASE MAY BE CITED AS: | CDPP v Galea |
MEDIUM NEUTRAL CITATION: | [2020] VSC 750 |
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CRIMINAL LAW – Sentencing – Terrorism offences – Acts in preparation for, or planning, a terrorist act – Attempting to make a document likely to facilitate a terrorist act – Sentenced to a total effective sentence of 12 years with a non-parole period of 9 years.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr R Maidment QC Ms R Sharp | Commonwealth Director of Public Prosecutions |
| For Mr Galea | Ms F Gerry QC (Trial) Ms A Hancock (Trial) Mr C Mandy SC (Plea) | Slades & Parsons |
HER HONOUR:
Introduction
Phillip Galea, you have been found guilty of two offences:
(a) Doing acts in preparation for, or planning, a terrorist act, contrary to s 101.6 of the Criminal Code (Cth)(“the Code”);[1] and
(b) Attempting to make a document likely to facilitate a terrorist act, contrary to ss 11.1(1) and 101.5(1) of the Code.[2]
[1]The maximum penalty for this offence is life imprisonment.
[2]The maximum penalty for this offence is 15 years’ imprisonment.
The nature and circumstances of the offences
These are both serious offences. One of the defining features of terrorism is that the object is to use serious violence, or the threat of it, as an instrument of coercion or intimidation of the community or the government, in the pursuit of a political, religious or ideological cause.
Although you regard yourself as a patriot who holds mainstream views, it is clear that the jury found otherwise. The jury must have accepted that your particular cause was to reduce the influence of people or groups associated, or perceived to be associated, with left-wing ideology, and/or Muslims. It is not surprising that they did so, given the views you expressed (in numerous documents, and in many hours of intercepted telephone conversations), and the types of organisations to which you belonged (such as Reclaim Australia, and The True Blue Crew).
You are not being punished for holding radical, right-wing views, or for saying things that many people would find deeply offensive.[3] Rather, you are being punished for the violent means by which you contemplated promoting your beliefs.
[3]It is not necessary for the purpose of sentencing you to reproduce the derogatory and offensive opinions expressed by you towards people who you regard as your enemies. Examples of them are adequately set out in the prosecution plea submissions.
Charge 1 – preparatory acts
The first charge relates to your conduct between the end of August 2015 and 6 August 2016, in planning or preparing to attack sites and/or persons associated with left-wing ideology.
The prosecution alleged that you had engaged in a number of preparatory acts during that period, in preparation for or planning an attack on left-wing targets.
There was no dispute that during that period you had engaged in a number of acts, such as conducting preliminary research into the Melbourne Anarchist Club, Trades Hall and the Resistance Centre.[4] That research included conducting internet searches of the organisations online, going and visiting their buildings to check out the layout and security, and taking photos or videos while you were there. The Resistance Centre was the target for which you had done the most research and preparation.
[4]A building which housed an organisation known as the Socialist Alliance.
It is also clear that you had encouraged or sought to recruit people to participate in attacks on left-wing targets, and provided some of them with instructions and details of your proposed attacks.
Even though you disputed it at trial, I am satisfied that you conducted research into the nature of, sources of ingredients for, and methods of making, explosive devices.
The main area of dispute at trial was as to your intention, that is to say, why you did those various acts. In finding you guilty of charge 1, the jury must have been satisfied beyond reasonable doubt that you performed those preparatory acts with the intention of carrying out an actual attack on a left-wing target. The jury must have rejected your innocent explanations for having visited and photographed the various premises, and for having recruited people. In particular, the jury must have rejected your illogical and implausible claim that you created a “fake plan” to attack the Anarchist Club and the Resistance Centre, and tried to recruit people to join you in that fake plan, in order to try to flush out a police informer within your ranks.
In addition to what was captured on telephone intercepts, a number of your former associates and friends gave evidence that you discussed with them your plan to recruit a small group to carry out an attack on those two buildings. You proposed to blow them both up in the early hours of the same morning, using explosive devices such as Molotov cocktails.
The further acts that you were preparing or planning to carry out were clearly of a kind that would cause serious damage to property.
The prosecution also put their case on the basis that the further acts were of a kind that would cause death or serious physical harm to a person, endanger another person’s life, or create a serious risk to the health or safety of the public or a section of the public. There is evidence that you believed there may be people sleeping in at least one of the buildings, who might be injured in the explosion. You spoke to several people of your desire to have the occupants of the buildings come out “like burning rats”. It is clear from listening to many hours of your telephone calls that you frequently engaged in colourful, rambling conversations, in which you would big-note yourself, especially late at night when you were drunk. However, I do not accept that what you said about “burning rats” was just drunken rambling. You clearly regarded Muslims and people on the left-wing of politics as sub-humans, whose lives had no value. I have no doubt that you would have been very happy if the further acts were carried out, and did in fact kill or seriously injure someone at the premises.
However, this part of the offence involves an objective test. There is in fact no evidence that anybody was sleeping at either location, both of which were commercial premises. The attacks were proposed to be carried out in the early hours of the morning, when it is unlikely that anybody would have been in, or walking past, the buildings. Accordingly, I am not satisfied that the further acts were of a kind that would cause death or serious physical harm to a person (although there is a slight risk that they might have injured anybody who was walking past the building at the time).
Some of your former associates and friends were concerned enough about the seriousness of your intentions that they contacted the police to report on your plans. You were arrested before you had managed to actually assemble a crew of willing recruits, or to manufacture or obtain the necessary explosive devices.
Your counsel pointed out that you had been talking about your plans for a year or so, without actually committing any terrorist act, or getting hold of explosive devices or precursor chemicals. You had also stopped working on the plans around April 2016, some four months before your arrest. You had not managed to persuade anyone to assist you, and had no intention of committing the attacks on your own. But this offence does not require that a terrorist act did in fact occur, or even that one was close to occurring. It is immaterial that the preparatory acts may have been at an early stage, or that you had not managed to enlist others to join you thus far. The essence of this offence is that the offender prepared or planned for a terrorist attack.
Charge 1 is a low mid-range example of this offence, having regard to the following matters. You had been conducting research, and planning to attack several specific targets, over a period of some months. Although your plans were rather amateurish, and aspects of them were highly unlikely to succeed, you believed that they would work. You tried, unsuccessfully, to recruit others to join you in your proposed attacks. You were undeterred by the suspicion that you were being monitored by law enforcement agencies. However, the acts you proposed to carry out were only of a kind that would be likely to cause serious damage to buildings.
Charge 2 – The Patriot’s Cookbook
The second charge relates to your conduct between about 19 November 2015 and 6 August 2016, in attempting to make a document called the Patriot’s Cookbook (“The Cookbook”). The Cookbook was something which you intended to distribute when it was completed to people who shared your views, to equip and encourage them to go out and commit violent acts against your common enemies.
You told a number of people that the Cookbook was to be based on the Anarchists’ Cookbook, but modified and with some additional material. You had got hold of several copies of the anarchists’ publication (as well as the Terrorist Handbook), and started to copy or modify a number of their documents for inclusion in the Cookbook. Given that you abhor the anarchist movement, believing them to be supporters of the left-wing and Muslims, it is somewhat ironic that you intended to use so much of their intellectual property.
You had also started writing some of your own documents for inclusion in the Cookbook.
You proposed that the Cookbook would include many (but not all) of the various documents saved by you in folders or file drives labelled “patriots cookbook” or similar. There were other documents that were not stored in such folders or files, which you also intended to include in the Cookbook. It is not necessary, or possible, to identify the precise contents of the Cookbook, for several reasons. First, the Cookbook was still a work in progress at the time of your arrest in August 2016; that is why you were charged with attempting to make a terrorist document, not making a terrorist document. Secondly, you told an associate that the police only managed to seize a small portion of the material you had gathered for inclusion in the Cookbook, and you had left the balance elsewhere for safekeeping.
However, it is possible to make findings about what sort of publication the Cookbook was intended to be, both from looking at the documents which were seized, and from what you told others about the nature and proposed contents of the Cookbook. In addition to expounding your political or ideological views, you intended that it would contain information about matters such as making and using bombs and other explosive devices, torturing people, and waging war against Muslims and “lefties”.
Even allowing for the fact that many of your late night conversations were alcohol-fuelled ramblings, the evidence as a whole leaves no doubt about the sincerity of your intentions, or the strength of your fixation with your perceived enemies.
During the course of the trial, you produced to the court almost 200 pages of what you claimed was the version of the Cookbook that you intended to publish, subject to receiving legal advice as to its contents. It soon became apparent that portions of that document must have been produced whilst you were in custody. Even though it was a milder document than some of the files that had been located on your computers, it still contained extremist political views, and information to help like-minded people arm themselves for violent battle.
In finding you guilty of charge 2, it is clear that the jury rejected your evidence that the Cookbook was intended to be a satirical work, or a benign “preppers’ manual” that would help people survive in the event of societal breakdown, or something that would only be published after you had received legal advice as to its contents.
The fact that some of your ideas seemed to be fanciful, immature rubbish, which were unlikely to have resulted in the commission of any particular terrorist act, is no defence. The gist of this offence is that you intentionally attempted to make a document with the intention of facilitating one or more terrorist acts.
Charge 2 is a moderately serious example of this offence, for the following reasons. You intended that the Cookbook would be a lengthy and detailed guide that would result in violent attacks on your opponents, ranging from the destruction of buildings to torture and killings. You intended that it would incite other right-wing extremists to join your cause and commit acts of violence. You proposed to distribute it through clandestine means, such as via the “dark-web” or at extremist rallies, to avoid detection. You recruited others to assist you in reviewing and editing drafts of the Cookbook. You had been working on the document for around 9 months before your arrest, and continued to work on it even while you were in custody awaiting trial for these charges.
Sentencing principles for terrorist offences
It is clear from the authorities that, in sentencing for a terrorism offence, the dominant considerations are the protection of the community, punishment, denunciation, and deterrence. Substantial sentences are generally imposed for terrorist-related offences, even though political, religious or ideological motivations may be such that general or specific deterrence may not be effective.
The personal circumstances of the offender, and their prospects of rehabilitation, will generally be given less weight than in other types of offending.
As far as your motivations and moral culpability are concerned, you intended to intimidate portions of the public and the government. Your overall aims were not limited to causing property damage. You spoke candidly of your desire to kill or injure people whom you perceived to be the enemy, through particularly violent means. You spoke of wanting to witness the “mass extermination” of the left, and wanting to “put them in the oven” with Muslims, and “crush them like bugs”. You tried to recruit militants who were willing to join you in creating a Muslim-free country. You aligned yourself with a number of extremist groups, focussing on the most militant factions you could find. You were not only planning specific attacks on two particular buildings, you were also attempting to create a detailed document that would enable other extremists to follow in your footsteps.
Having regard to the relative seriousness of the two offences, and the motivation behind your offending, punishment, denunciation and general deterrence are significant considerations in sentencing you.
I turn to consider your personal circumstances, including questions of specific deterrence and rehabilitation (which are relevant to the protection of the community).
Personal circumstances
You were born in November 1984, and have just turned 36 years old.
You grew up in a dysfunctional family home, and experienced neglect and physical violence at the hands of your father. You were not close to your mother or your only sibling.
At school, you struggled both academically and socially. You were diagnosed with dyslexia, a diagnosis which you dispute. Although you have always been interested in science and mechanics, you still struggle with literacy – as clearly demonstrated by your extremely poor spelling. You found school boring, and did not follow the rules.
You first interactions with mental health professionals occurred when you were in early primary school. By your early teens, you had been diagnosed with Conduct Disorder and Asperger’s Syndrome (now called Autism Spectrum Disorder).
You left school and home at 16, and spent some time homeless. You eventually completed a number of TAFE certificates and vocational courses. You were steadily employed as a forklift operator from your mid 20s until the time of your arrest.
You had no friends at school, and have described yourself as having been destructive of property and relationships. You were both a bully and a victim of bullying. You do not seem to have developed many meaningful relationships in your adult life either.
Between the ages of 16 and 30, you used a variety of illegal drugs, including cannabis, LSD, MDMA and “ice”. You have had a number of inpatient admissions to treat drug-induced psychotic episodes. You also have longstanding alcohol abuse problems.
You have appeared before the courts on many occasions since 2003, mostly for minor theft or property damage. There were long periods during which you did not come before the courts. In December 2009, you were placed on a community based order in respect of a charge of making a threat to kill. You otherwise have no convictions for offences of violence.
In the lead up to this offending, you appear to have spent enormous amounts of time alone at home, drinking excessive amounts of alcohol, and fuelling your conspiracy theories by accessing information on the computer.
Over the years, including during a period of time you spent in Thomas Embling Hospital whilst awaiting committal for trial, you have been assessed by numerous mental health professionals. There have been many observations made of your paranoia and conspiratorial beliefs, and a number of different diagnostic labels have been considered. You frequently incorporate new events (including psychiatric assessments, people’s behaviour, and court processes) into your ongoing conspiracy theories. At one stage, you were diagnosed as suffering from paranoid psychosis, but the weight of the psychiatric evidence is against any such diagnosis. There remains some diagnostic uncertainty about your mental state.[5]
[5]At one stage during the committal proceedings, there was a question as to your fitness to stand trial. See: CDPP v Galea [2018] VSC 30.
Dr Nina Zimmerman’s report of February 2018 said that your account of your early years supported a diagnosis of Antisocial Personality Disorder, and also of a person who grew up with a lack of stable attachments and a poor sense of identity. She believes that your “zealous identification with extreme right politics has provided a sense of purpose, mission and identity, that has been combined with a long-standing disregard for rules and an easy resort to violent solutions to what [you] perceive as problems.”
It is not suggested that you have any condition to which Verdins principles might apply in this case. That said, I do accept that your paranoia and conspiratorial beliefs, drug and alcohol consumption, social isolation, and poor emotional responses, all affected your judgment, and had some causal connection to the offending.
You have shown no remorse or contrition for your offending. On the contrary, you continue to maintain your innocence in respect of these charges. You continue to believe that you are the innocent victim of a police conspiracy, a conspiracy to which you now believe that your trial counsel, as well as the prosecution and the court, are all parties.
Your plea hearing was delayed for more than 8 months after the verdict, in order to enable you to be assessed by an expert in terrorism studies. Ms Peta Lowe, whose qualifications include Masters degrees in Social Work and in Terrorism and Security Studies, gave written and oral evidence on your behalf. Ms Lowe administered two assessment tools, the Violent Extremism Risk Assessment – Version 2 Revised, and the Terrorist Radicalization Assessment Protocol. She also based her assessment on the trial evidence, your past mental health reports, and personal discussions with you.
These two assessment tools are not statistically-valid predictions of extremist violence, but they do measure various empirically-supported indicators, which are representative of the risk of violent extremism. Ms Lowe’s overall opinion is that your current violent extremist risk is in the low or low-moderate range.
Ms Lowe notes that you still hold the same anti-Islam, anti-left ideology, and still believe strongly that there has been police corruption and a conspiracy to target the patriot movement. You also still hold strong beliefs of personal grievance and injustice. However, she accepts your reports that, notwithstanding those beliefs, whilst in custody you have disengaged from political activism and wish to focus on your Christian values, including non-violence. She accepts that you currently do not support or justify the use of violence in order to achieve your goals.
However, I note that there is no evidence that you have renounced the use of violence to achieve your political or ideological goals, apart from whatever you told Ms Lowe. Indeed, it is clear that even while you were awaiting trial, you continued advocating violence in the version of the Cookbook which you partly wrote in custody.
Ms Lowe also notes that risk indicators associated with violent extremism are fluid, and must be considered at the time and in the context in which they are assessed. She assessed you at a time when you were incarcerated, not affected by drugs and alcohol, and had limited access to involvement in far right political activities. Those factors contributed to the overall reduction in violent extremist risk since the time of offending. However, she notes that you still display a number of vulnerability factors, which she recommends should be addressed in custody with appropriate counselling, support and education. She also agreed in cross-examination that it would be very easy for you, at some future point, to revert back to justifying the use of violence to achieve your goals.
Although I note that you do not have a history of violent offending, your prospects of rehabilitation are complex, given the strength of your conspiracy theories and beliefs, and the types of vulnerability factors mentioned by Ms Lowe. There is still some need for specific deterrence and community protection in this case.
Other relevant considerations
You have been in custody since your arrest on 6 August 2016. You have spent more than 4 years on remand, with the uncertainty of the outcome of these proceedings hanging over your head.
You have also spent those 4 years in very limiting and onerous custodial conditions. Apart from a period of about three weeks when you were in Thomas Embling Hospital on a secure treatment order, you have spent your time in management or protection units. For most of that time, you have generally only had one or two hours each day out of your cell. You have had little or no social interaction with other prisoners throughout that time.
You have also had no access to vocational or training programs, and no ability to attend church services, the library or the gym. Your family live interstate, and you had very few visitors in custody even before the COVID-19 pandemic led to a cancellation of in-person prison visits.
It is not exaggerating the evidence to say that you have effectively been kept in solitary confinement for four years. Although there have been a couple of minor incidents of misbehaviour by you, it is not suggested that you have been kept in isolation because of your behaviour in custody. Initially, you requested to be kept in protection, because of your concerns about your safety if placed with Muslim prisoners. You have also expressed an unwillingness to mix with sex offenders. But you have subsequently made numerous, unsuccessful requests to be moved to a less restrictive environment. The evidence from Corrections Victoria is that you have been kept in protection because of the nature of your offences, being terrorist acts.
Whilst there is some possibility of you moving out of protection into less restrictive conditions at some stage in the future, the evidence persuades me that you are likely to remain in onerous protection conditions for the foreseeable future.
Because your custodial conditions are already extremely harsh, you have not had any further restrictions imposed due to the COVID-19 pandemic. This means you will not be eligible for the very substantial credit that is being given to mainstream prisoners during the pandemic.
I accept that your imprisonment has been, and is likely to continue to be, more burdensome for you than for most other prisoners. I have taken that into account in sentencing you.
Sentence
For charge 1, doing acts in preparation for, or planning, a terrorist act, I sentence you to 10 years’ imprisonment, commencing today. This is the base sentence.
For charge 2, attempting to make a document likely to facilitate a terrorist act, I sentence you to 6 years’ imprisonment.
Although the political, religious or ideological cause that underpins both offences is the same, and they were both being committed over the same general period, charges 1 and 2 involve discrete types of offending. Further, the conduct in relation to charge 2 went further than the conduct relating to charge 1, and was more serious. There needs to be accumulation to reflect those matters. I order that 2 years of the sentence for charge 2 be accumulated on the base sentence. In order to achieve that accumulation, I will order that the sentence for charge 2 is to commence 6 years after the commencement of the sentence for charge 1.
That means that your total effective sentence is 12 years’ imprisonment. I fix a period of 9 years before you become eligible for parole.[6]
[6]Section 19AG of the Crimes Act requires the non-parole period for a terrorist offence to be at least three-quarters of the head sentence.
This means that you will serve a term of imprisonment of not less than 9 years. If a parole order is made at the end of that period, you will serve the rest of your sentence in the community, subject to parole conditions. If you breach those parole conditions, your parole order may be revoked or varied, and you may be sent back to prison for the balance of your sentence.
I declare that the period to be reckoned as already served under this sentence is 1567 days, excluding today's date. That fact is to be noted in the court records.
Pursuant to s 105A.23 of the Code, I must warn you that an application may be made under Division 105A of the Code for a continuing detention order, requiring you to be detained in a prison after the end of your sentence for these offences. Whether or not such an order would be made would be determined by a judge at the time of hearing any such application, were it to be made.