Director of Public Prosecutions (Cth) v Sherani
[2024] VSC 620
•10 October 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0077
| THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| ARAN SHERANI | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 July 2024 |
DATE OF SENTENCE: | 10 October 2024 |
CASE MAY BE CITED AS: | DPP (Cth) v Sherani |
MEDIUM NEUTRAL CITATION: | [2024] VSC 620 |
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CRIMINAL LAW — Sentence — Commonwealth terrorism offences — Offender pleaded guilty to one charge of being a member of a terrorist organisation namely Islamic State —Found guilty of one charge of doing acts in preparation for, or planning, a terrorist act —Acquitted of two further charges — Limited acts in preparation — Whole plan very short‑lived and rapidly abandoned — Serious example of membership offence —Young offender — Radicalised online — Evidence given on plea denouncing Islamic State — Sentenced to a total effective sentence of eight years’ imprisonment with a non‑parole period of six years’ imprisonment — Criminal Code Act 1995 (Cth) ss 102.3(1), 101.6(1) & 105A.23; Crimes Act 1914 (Cth) ss 16A(2), 16F & 19AG; DPP (Cth) v Ali [2020] VSCA 330; R v Bayda & Namoa (No 8) [2019] NSWSC 24; AH v R [2023] NSWCCA 230.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Hannebery KC with Mr M Keks | The Commonwealth Director of Public Prosecutions |
| For the Accused | Mr P Doyle SC with Ms G Morgan | Robinson Gill Lawyers |
HER HONOUR:
Introduction
Aran Sherani, you were charged on Indictment with four terrorism offences. In the presence of the jury panel, you pleaded guilty to one charge of being a member of a terrorist organisation namely Islamic State (Charge One). You pleaded not guilty to two charges of attempting to commit a terrorist act (Charges Two and Three), and not guilty to one charge of doing acts in preparation for, or planning, a terrorist act (Charge Four). A trial was held. You were acquitted on Charges Two and Three, and convicted on Charge Four.
It follows that you fall to be sentenced on Charges One and Four. Charge One carries a maximum penalty of 10 years’ imprisonment. The maximum penalty for Charge Four is life imprisonment. Both charges are Commonwealth offences. Pursuant to the Crimes Act 1914 (Cth) (‘Crimes Act’), I must take into account the matters listed in s 16A(2)(a) of that Act to the extent they are relevant and known to the Court.
It is necessary to set out in some detail the factual basis for the charges, and refer to some of your evidence.
The offending
Charge One
The basis for the charge is that you were an informal member of Islamic State or took steps to become a member (including an informal member) between 11 January 2021 and 17 March 2021. During this period, you were residing with your family in Epping. The end date marks the date of your arrest for terrorism offences. Charge One was particularised as follows:
1. Possessing, accessing and engaging with material promoting Islamic State, violent extremism and jihad;
2. Expressing the desire to make hijrah (travel overseas to participate in jihad);
3. Expressing the desire to engage in violent jihad and punish non‑believers;
4. Expressing the desire to be a member of Islamic State;
5. Pledging an oath of allegiance (bay’ah) to Islamic State;
6. Lighting the bushfire in Humevale in the name or on behalf of Islamic State on 18 February 2021; and
7. Lighting the bushfire in Kinglake West in the name or on behalf of Islamic State on 28 February 2021.
The particulars of Charge One include the conduct that constituted Charges Two and Three, and overlap with the conduct that constitutes Charge Four. In sentencing, I must ensure that the acquittals are not traversed and that there is no ‘double punishment’ as between Charge One and Charge Four.
You were 18 years old when your offending commenced and you turned 19 on 1 February 2021. At the time, Melbourne had experienced multiple and lengthy lockdowns due to the Covid‑19 pandemic, and you had spent increasing amounts of time alone and online. You gave evidence at trial and, while there are parts of your evidence I do not accept, I broadly accept your description of how you came to be involved with Islamic State.
You had a disjointed and unstable upbringing due largely to your father imposing his will on the family. Your family moved around a great deal, including spending three months in a refugee centre in Europe posing as Kurdish refugees. Your family was Kurdish but you were not refugees. You were around 13 years old at the time and forced by your father to lie about your true situation, including fabricating a story for the purposes of a refugee claim. Your family’s claim was granted and you spent a brief period in Austria before travelling to Kurdistan.[1] After changing countries several times, your family moved to New Zealand in late 2017. In December 2019, your father again moved the family, this time back to Australia. You were looking forward to turning 18 in February 2020 and achieving independence from your father, but your plans were derailed by the commencement of the Covid‑19 pandemic. Based on the material I have, your father was a selfish, overbearing, belligerent and capricious man who made decisions that suited him, regardless of what it might mean for the wellbeing of others, including his children.
[1]The term Kurdistan is used to refer to the region known as Kurdistan in northern Iraq.
You had a strong interest, almost an obsession, with Kurdish politics and the plight of the Kurdish people. You began following like‑minded people on Instagram and were introduced to the idea of a caliphate, which would unite all Muslims. You also began examining the concept of jihad and were exposed to Islamic State followers. You developed a real sympathy for Islamic State and sought to join them. You wanted to travel overseas and fight alongside them. You also convinced yourself that the Islamic State group were best placed to help the Kurdish people.
By December 2019, you were engaging online with Islamic State propaganda and followers. By 8 January 2021, you were engaged in a conversation with four other Islamic State sympathisers on Telegram. You spoke approvingly of Islamic State and expressed a desire to travel and join their cause. You wanted to make hijrah, which you understood to be a religious obligation to travel to where Islamic State were attempting to establish a caliphate. To do this, you needed the assistance of Islamic State members who would vouch for you and provide you with safe passage.
To this end, you began engaging with Telegram users who you believed to be part of the Islamic State media wing, including Qasim Khurasani (‘Qasim’), Abu Muhajiir and Anas ibn Malik. There was evidence at trial that these people were in fact part of the Islamic State media wing. On 8 February 2021, you left a message for Abu Muhajiir telling him that they can have no doubts about you because you are in it now. You asked for help to do hijrah as you were worried you may be arrested. On 15 February, you told Qasim that ‘I am now preparing for the bush fire’. You discussed the Islamic State pledge of allegiance with other Islamic State members.
On 18 February, you, together with your brother Ari (who was a co‑accused on Charge Two and also acquitted) lit a bushfire in Humevale. You travelled down a locked fire access track, chose a heavily treed location and used petrol and fire starters to light the fire. You covered your face while your brother filmed you stating, among other things, ‘Islamic State still remains … Wherever you are, you are not safe anywhere’; ‘Right here in Australia, we are numerous, we will do much damage to you’; and ‘You are not safe, even in your cities you’re not safe … we will burn your cities, burn your families alive, you will all taste the fire. … We will slaughter you all.’
The fire was fortunately detected and extinguished before it could spread. This conduct formed the basis of Charge Two, of which you were acquitted. For the purposes of Charge One, the conduct forms part of a body of material that evidences your involvement with Islamic State. It shows the strength of your dedication and commitment, and the lengths you were prepared to go to be accepted by Islamic State and obtain what you wanted from them. You did not attempt to commit a terrorist act but you did display a reckless disregard for the safety of others. I do not accept your trial evidence that you chose the site so emergency services could easily reach and extinguish the fire. I note that you did not report the fire, even anonymously, and simply left it to burn. I accept that you were concerned for your own safety and your own ability to leave the site, hopefully without being seen, but I doubt you were particularly concerned about anyone else.
Following this fire, you edited the video so as to modify your voice and incorporate an Islamic State nasheed — which is somewhere between a chant and a song — titled ‘Answer the call’. You sent the edited video to Qasim, telling him it was just a small sample and not ready to be published. He responded by saying, in part, ‘Just creat[e] a huge fire in their best places’. You replied, ‘It’s in progress’.
A few days later, you saved Islamic State propaganda videos on your phone. One video contained the nasheed ‘Answer the call’, together with graphic footage of Islamic State military activities, including acts of terrorism, beheadings and executions. In evidence, you claimed not to know the video was on your phone. While I accept this is technically possible, I do not accept you did not know it was there and did not watch it. It appeared at the very time you were making propaganda videos for Islamic State, and you would have had an interest in how Islamic State propaganda videos were structured and composed.
You also discussed with another Telegram user a plan they had to commit jihad in Kuwait. You told that person that you were in contact with high ranking Islamic State officials and, because you had ‘done some things’ for them, you were recognised as a legitimate member. You also told them you had ‘done some stuff’ here in Australia and advised doing ‘low key’ operations so as to avoid certain death or capture, as ‘we are close to hijrah’.
On 28 February, you lit a second bushfire at Kinglake. This time, your brother Ari refused to help. You used a similar quantity of fuel as used for the first fire, but you mixed it with detergent to increase the flame size. You lit the fire in a heavily treed area next to a clearing and filmed yourself speaking to camera. Again, your face was concealed. You said you were ready to carry out the operation and would punish the disbelievers. You also provided instructions to your ‘brothers’ on how to light a fire that would burn the whole ‘forest’. The language you used bore a striking resemblance to the language used in an article titled ‘Just Terror Tactics’ contained in the Islamic State magazine, Rumiyah. This was later found on your phone. In evidence at trial, you denied having read the article and, in evidence on the plea, you said you only read the Rumiyah magazine and other Islamic State publications after you were remanded. I do not believe your evidence in this regard. In my view, it is clear that you had read the article prior to lighting the Kinglake fire and sought to emulate the language and instructions found in that article. You also agreed to write an article for an Islamic State magazine, which makes it even less likely that you would not have had any interest in reading their publications.[2]
[2]In trial evidence, Mr Sherani said he agreed to write an article for an IS Magazine intended for the Maldives. See Transcript of Proceedings, DPP (Cth) v Sherani and Sherani (Supreme Court of Victoria, S ECR 2022 0076; S ECR 2022 0077, Fox J, 20 October 2023) 950–951.
You left the fire burning and returned home. Fortunately, the fire was spotted by locals while still small. They went to the scene and commenced fighting the flames. Emergency services were called and the fire was extinguished. Later that evening, you created an edited version of the video incorporating scenes from both bushfires, speeches and commentary, scenes from an Islamic State propaganda video and a moving Islamic State flag. There is no evidence the video was sent to anyone and you deny doing so. On 10 March, you engaged in a conversation with a person called Runi. Your counsel made much of this conversation both at trial and on the plea. You asked Runi to come to Kurdistan and ‘do jihad’ and told him ‘we need you in the Islamic State’. You also told him ‘if the police come get me I’m fighting’. I will return to this conversation shortly.
On 17 March, prior to being arrested, you successfully evaded police and recorded yourself pledging allegiance to Islamic State. The events of this day otherwise form the basis of Charge Four. Overall, between 11 January and 17 March, you remained committed to and involved with Islamic State. Islamic State is an established terrorist organisation with a proven track record of committing and celebrating some of the worst terrorist acts imaginable.[3] They present a direct and ongoing threat to Australia and they advocate for the indiscriminate killing of civilians and non‑believers. You possessed, accessed and engaged with material that promoted Islamic State, violent extremism and jihad. You chose to involve yourself with Islamic State members and sympathisers online and pursued those connections. Your conduct extended beyond online chats and exchanging views, and you created propaganda videos for them. Islamic State would not have recognised you and invited you in if you had not displayed the mindset necessary for membership.
[3]See Benbrika v The Queen (2010) 29 VR 593, [555].
According to you, you said various things to different people that you did not really believe. You talked about punishing the kuffar and killing disbelievers, but were supposedly saying this to fit in and did not mean killing members of the Australian public.[4] You told Runi that it was permissible to commit jihad in Australia if you are not allowed to leave, but did not actually believe that.[5] I found your trial evidence about this conversation unlikely. Your counsel argued that if you had been truly committed to Islamic State, you would have encouraged Runi in his plan to get a gun and commit an act of violence. However, what you told Runi is that you needed him to come to Kurdistan and fight with Islamic State, and it is his duty to do hijrah before jihad. That was your reason for not encouraging him to get a gun. I have never regarded your conversation with Runi as evidence that you did not truly embrace Islamic State.
[4]Transcript of Proceedings, DPP (Cth) v Sherani and Sherani (Supreme Court of Victoria, S ECR 2022 0076; S ECR 2022 0077, Fox J, 20 October 2023) 982.
[5]Ibid.
Your answers as to what you thought Islamic State would do with the bushfire videos were evasive and you sought to downplay their significance. You admitted you were making propaganda for Islamic State, and you understood Islamic State propaganda was shared widely in order to promote the aims of Islamic State, but said you did not think your video would be circulated in this way.[6] You gave no reason as to why you thought that. Similarly, you claimed that you did not think the videos would be used to recruit Islamic State fighters, or used to inspire terrorist acts. This raises the question, what did you think the Islamic State would do with the propaganda videos? In my view, you never really answered this question.[7] You were acquitted of Charges Two and Three, but it does not follow that I must accept your full account of why the videos were made.
[6]Transcript of Proceedings, DPP (Cth) v Sherani and Sherani (Supreme Court of Victoria, S ECR 2022 0076; S ECR 2022 0077, Fox J, 23 October 2023) 1069.
[7]Ibid 1069–1071.
The videos themselves show the intended audience was potentially larger than just Islamic State members or sympathisers. In the videos, you directly threaten the Australian public. While you may have made the videos in order to obtain Islamic State permission or approval to enter their territory, such approval would not be granted unless Islamic State were pleased with you. The videos were clearly intended to inspire terrorist acts and threaten the Australian public. On your version of events, you would have had no control over their use once they were sent to Islamic State media.
You said that you saw the establishment of an Islamic State run caliphate as the necessary and best option to liberate and help the Kurds.[8] This was one of the more difficult aspects of your evidence to understand. The attitude taken by Islamic State to women, music, folklore and language would see the Kurdish culture destroyed. Somehow, you sidestepped or rationalised this problem. At one point, when asked to explain what your attitude to hijrah had to do with your concern for the Kurdish people, you answered that at some point you would go back to your own country, and ‘so combined with this sort of religious aspect of it, it gave me more of an impetus’.[9] Carefully scrutinised, your answer makes little sense.
[8]Transcript of Proceedings, DPP (Cth) v Sherani and Sherani (Supreme Court of Victoria, S ECR 2022 0076; S ECR 2022 0077, Fox J, 19 October 2023) 909.
[9]Ibid 917.
In your trial evidence, you said you did not ‘believe’ in everything Islamic State stood for, including their attacks on the West. I found that evidence difficult to accept. Violent attacks on non‑Muslims in Western countries is not an incidental aspect of Islamic State. It is a fundamental aim of that organisation. You admitted you developed a ‘real sympathy’ for Islamic State, and it is difficult to see how you could sympathise with a terrorist organisation if you were truly repulsed by their violence. You admitted you were recognised by individuals online as someone who wanted to join Islamic State and who could be of assistance to them.
If your evidence is to be believed, your attitude to Islamic State was somewhat transactional: you wanted to make hijrah and join Islamic State overseas, and for that to occur, you needed members of Islamic State to vouch for you and assist you. You claim that, in general, you found the graphic footage of Islamic State violence, including beheadings, ‘disgusting’. I will return to this aspect of your evidence but, even if that is true, you were not so disgusted that you rejected Islamic State. Rather, you embraced them and actively sought to join them. Promoting and committing extreme acts of violence in the name of Islam is a core tenet of Islamic State. Your claim of being disgusted gives rise to at least two possible conclusions: one, you are not being truthful, or two, you were capable of overlooking or ignoring the worst aspects of Islamic State if it meant getting what you wanted. Neither conclusion is positive. A third possible conclusion is you were capable of very distorted thinking, wherein you could join Islamic State but somehow overlook their commitment to extreme violence, international terrorism and the slaughter of innocent civilians.
Charge Four
On 17 March, police arrived at your home to arrest you. You observed them to be outside and armed, and you ran. I do not accept that you fled because you feared police would kill you. I accept being shot by police entered your mind but you could have peaceably surrendered if you chose. You ran because you did not want to be apprehended at that point in time. Your brother Ari remained at home and was arrested. Soon after fleeing, you left a voicemail for Ari telling him to have faith and not be afraid. You said that, god willing, you would see him in heaven.
At 7:18am, you purchased a small knife from a supermarket. You left messages for your girlfriend, Rabia, telling her the police were waiting for you and you would rather die. You said you were going to try and see that through, that you die. You then texted Federal Agent Antemes asking him whether you could help him and saying ‘at least you knocked’. One minute later, you phoned Federal Agent Antemes asking him what police wanted. When advised to return home, you queried whether he was going to shoot and kill you. You then swore and told police they had made it difficult before hanging up.
Over the next approximately half an hour, you recorded a series of videos, some intended for the ‘brothers’. Some of these videos were uploaded to Instagram. In the videos, you praised Allah and spoke of your connection to Islamic State. You said that you desired to make hijrah but because the non‑believers make it difficult, you will do jihad in their lands instead. You talk of being smart enough to slip away from police and purchase a knife, which you hold to the camera while smiling. You repeatedly pledge allegiance to Islamic State while holding the knife. You urge your brothers to ‘do jihad’, ‘make vengeance’, and ‘spill their blood’. In my view, your demeanour in those videos is far from fearful. You are defiant and almost smirking at times. At 7:48am, you answered a call from Federal Agent Antemes who again asked you to return home. You responded, ‘Why, so you can shoot me?’. At around 8:00am, you were sighted by police walking in bushland in the vicinity of Seeber Street, Epping. After running off a number of times, you were finally apprehended at 8:16am. You were unarmed and no knife was ever located.
The acts in preparation you committed were buying a knife and creating the videos wherein you pledge allegiance to Islamic State, urge others to ‘do jihad’, and talk of dying as a martyr in the pursuit of jihad. The intended terrorist act was a threat of action, namely threatening police officers with the knife. You intended the threat to be sufficiently serious and proximate, such that the police would feel physically threatened and need to respond with violence. In evidence at trial, you gave a long, complicated and self‑serving explanation of why you behaved as you did on 17 March. The verdict satisfies me that the jury rejected your explanation beyond reasonable doubt. Your counsel submitted that you may have been both fearful for your own life and planning to threaten police with the knife. While that is possible, it is not a conclusion I have reached. I recall the evidence you gave about this matter, including your description of leaving messages for friends and family, and I found much of it inauthentic. I do not accept you ran from police because you were in a state of ‘panic and fear’. At some point, you abandoned your plan. This may have occurred around the time one of the police officers pursuing you became stuck on a fence. However, the most likely reason you abandoned your plan to threaten police with a knife is because you realised you did not want to be shot and killed.
You fall to be sentenced on the following factual basis:
(a) The acts in preparation were purchasing the knife and making the videos in which you pledge allegiance to Islamic State and urge fellow Islamic State members to wage jihad and spill the blood of the disbelievers.
(b) The further act you intended was threatening one or more police officers with the knife.
(c) The purpose of the threat was to advance the cause of Islamic State through violence and to intimidate a section of the public, namely the police officers who were trying to arrest you.
(d) The planned threat was to be sufficiently serious that the police officers would feel physically threatened and provoked to respond with force, likely lethal force. You were anticipating that you may be killed as a result, and you would die a martyr in the name of Islamic State.
(e) The whole episode was short lived. The plan was formed, the preparatory acts were committed, and the plan was then abandoned, in the course of approximately one hour.
Seriousness of offending
Terrorism offences have existed pursuant to Part 5.3 of the Criminal Code Act 1995 (Cth) (‘Criminal Code’) for over two decades.[10] It follows that, throughout Australia, a substantial number of persons have now been sentenced for terrorism offences, including membership offences and offences involving acts in preparation. The principles found in those earlier decisions are relevant here.
[10]Part 5.3 was introduced into the Criminal Code in 2002 following the attacks on New York City and Washington on 11 September 2001.
The seriousness of the offending cannot be underestimated. Terrorist organisations have as their aim the widespread infliction of death, damage and horror on innocent civilian populations. Their objective is to disrupt and destroy the values, institutions and lifestyles enjoyed by democratic, tolerant societies. They are motivated by hatred and intolerance, and driven by a corrupt and distorted ideology.
General deterrence, denunciation and protection of the community must be given substantial weight when sentencing for both offences, and personal factors, such as your youth and prospects of rehabilitation, are of less weight.[11] In cases involving terrorism offences, as in all cases, it is necessary to make an assessment of both the objective seriousness of the offence and the offender’s moral culpability.[12]
[11]R v HG [2018] NSWSC 1849, [95]. In that case, the offender was aged 16 years and 5 months at the time of offending and motivated by Islamic State ideology. He was found guilty of one charge of committing acts in preparation between 6 and 12 October 2016, for which he was sentenced to a term of imprisonment of 16 years with a non‑parole period of 12 years. See also DPP (Cth) v Ali [2020] VSCA 330, [90] (‘Ali’).
[12]R v Lelikan [2019] NSWCCA 316, [118].
Charge One
The history, objectives and nature of the organisation are all relevant when considering the seriousness of the membership offence.[13] Islamic State is one of the most notorious terrorist organisations. They are well‑established, organised, relentless and extremely violent. Their reach is international, and considerable resources are expended to protect societies such as Australia from the atrocities they seek to commit. They present a direct threat to this country and many others.
[13]Ibid [123]. The Court also stated that it is not appropriate to assess the merits of the organisation, as that is for the legislature to consider when designating whether an organisation should be declared as such: at [122].
Charge One is a serious example of the offence. It consisted of more than just chatting online, watching Islamic State material and swearing allegiance. You created propaganda for them, which would communicate to like‑minded people that a way of committing an effective terrorist attack in Australia is to light a bushfire. I take into account that you did plead guilty to Charge One, and you are entitled to the benefit of that plea, including its utilitarian or practical value.[14] Your guilty plea provides some evidence of contrition. It shows an acceptance of responsibility by you for your offending, and a willingness to facilitate the course of justice.
[14]Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4.
Your decision to join Islamic State was self‑directed and carefully considered. You were not uneducated or naïve, nor indoctrinated as a young teenager. You were born after ‘9/11’, and some of the worst terrorist attacks to occur in your lifetime have been perpetrated by Islamic State. Given the extent to which you read and studied issues, you could have had no doubt about their violent aims. While I accept that this aspect of Islamic State is not what first drew you to them, for the reasons I have been through, I do not accept it really repulsed or offended you.
You were not a preacher, a charismatic leader or a recruiter for Islamic State. However, you were more than a low level informal participant. In my view, your concern for the Kurdish people might have drawn you to Islamic State — although your explanation is muddled — but it does not reduce your moral culpability. Your offending was quite different to and more serious than the offending in R vLelikan.[15] In that case, the offender was Kurdish and had suffered displacement and intergenerational trauma. He was found to be a passive, sympathetic observer who had joined the PKK and chronicled their struggles. His writings did not seek to incite or exacerbate extremist ideology, and his offending was towards the lowest order of seriousness.[16] By way of contrast, you involved yourself with the Islamic State media wing, wrote or offered to write propaganda material for them, and created propaganda videos. You must have known that those videos would be used to advance extremist ideology and promote Islamic State violence. Logically, they could have no other purpose. You were not a member for a lengthy period of time, albeit it ended due to your arrest, and not as a result of any self‑reckoning by you.
[15]R vLelikan (No 5) [2019] NSWSC 494.
[16]R v Lelikan (2019) 101 NSWLR 490, [54]–[56]. I note that on appeal, the sentence was considered manifestly inadequate but the residual discretion was exercised. It was also found that the sentencing judge erred in her assessment of the objective seriousness of the offence by considering the merits of the organisation’s cause: see R v Lelikan [2019] NSWCCA 316.
Charge Four
It is necessary to consider the gravity of the contemplated terrorist act, and the extent of the preparation actually done. These features have been referred to as the two axes of seriousness for sentencing purposes.[17]
[17]Ali, [71].
The first focuses on the act in contemplation. In Ali, the Court held that ‘other things being equal’, the preparatory act will be more serious if the planned terrorist act involves the killing of persons, rather than property damage. A planned deliberate killing is more serious than a planned act that carries the risk or possibility of people being killed, and the planned killing of many people is more serious again.[18] Whether the terrorist act was likely to have occurred had the offender not been arrested is also a relevant consideration.[19]
[18]Ibid [75].
[19]Ibid [102].
The second axis focuses on the preparatory act itself. This invites consideration of a wide range of factors, including the degree of planning; the offender’s level of commitment; the period of time involved; the depth and extent of the offender’s radicalisation; and the nature and extent of the equipment or materials obtained by the offender for use in the terrorist act.[20] An offence is said to be ‘no less serious’ merely because the preparation is unsophisticated, ineffective or amateurish.[21]
[20]Ibid [75]–[77].
[21]Ibid [71], [75]–[77].
The offending on Charge Four is fairly described as unusual. A terrorist act can be an action, or a threat of action, and the action must fall within the definition of terrorist act.[22] Here, the planned act was a threat of action only. You are not to be sentenced on the basis that you planned to stab or physically harm any police officer, only that you planned to threaten such an action. While the threat was intended to be sufficiently serious to provoke the police to respond violently, it remained nonetheless only a threat. This reduces the objective seriousness of the offence. There are other features of your offending that must be considered:
[22]Criminal Code Act 1995 (Cth) s 100.1(2) (definition of ‘terrorist act’).
(a) The period of time involved was very short.
(b) The acts in preparation were limited in their nature and not sophisticated. That said, you knew the police were attempting to arrest you, and you did what you could in the time you had. Your moral culpability is high.
(c) Your plan, such as it was, was well‑advanced in that you had obtained a knife and made the videos. You had what you needed to threaten police, induce in them a violent response and die a martyr in the name of Islamic State.
(d) While the plan remained afoot, you were committed to its execution and driven by your loyalty to Islamic State. However, you voluntarily abandoned the plan prior to being arrested, and your ultimate arrest was made without incident or resistance.
I do not accept the prosecution submission that there was an apparent intent to publicise the act.[23] While you may have intended that your videos were shared, there is no evidence you intended to publicise the act itself, and it is difficult to see how you could have done so.
[23]Prosecution Submissions for Sentence dated 8 July 2024, [35], [51].
Your counsel referred to the decision of Bayda,[24] and submitted your offending was similar to but even less grave than the offending there.[25] In that case, both offenders were 18 years old. They were convicted following a trial. Neither offender gave evidence at trial, but both gave evidence on the plea in which they accepted the verdict and renounced Islam. The conspiracy was extant for at least 14 days, and the offenders had planned a violent street robbery or attack against non‑Muslims on New Year’s Eve.[26] Bayda and two associates had with them a baseball bat and two knives, but the plan did not proceed as one or more of them called it off. The sentencing judge accepted Bayda’s evidence, including that when it came to it, he froze and could not proceed with the plan.[27] The sentencing judge found that, despite his boasting, Bayda did not intend to carry out a terrorist act that would lead to his own death. The judge also emphasised the ‘relative superficiality’ of the offenders’ ideological convictions.[28] The judge was not satisfied that the material allegedly downloaded on 9 January 2016 formed part of the conspiracy.[29] The offending was assessed as being of a ‘relatively low order of seriousness’ and there were significant mitigating circumstances. Both offenders had been indoctrinated as children and were demonstrably immature. Namoa had a history of mental health problems and was highly susceptible to militant Islamic brainwashing.[30] She was sentenced to three years and nine months’ imprisonment. Bayda provided assistance to authorities and received a sentencing discount.[31] He was sentenced to four years’ imprisonment. Both received 75% non-parole periods.
[24]R v Bayda & Namoa (No 8) [2019] NSWSC 24 (‘Bayda’).
[25]In making this submission, your Counsel submitted you committed the offence ‘while in a state of panic and fear’, which I have rejected.
[26]Bayda, [23].
[27]Ibid [35].
[28]Ibid [113].
[29]Ibid [20]. The purchase of a second knife was also not part of the conspiracy, [41].
[30]Ibid [103], [117].
[31]Ibid [122].
In my view, your offending is more serious and the matters in mitigation less compelling than in that case. You made a considered, researched decision to join Islamic State. The videos you made on 17 March showed the depth of your commitment. You did intend, albeit for a short period, to die a martyr in the name of Islamic State. I also accept the prosecution submission that your decision was not entirely spontaneous or impulsive. One week earlier, you had told Runi that you intended to fight if police came for you, which shows you had already considered what you would do if your arrest was imminent. You had been arrested and released on 10 March, and were expecting to be arrested again, as police had seized your mobile phone and laptop. The arrival of police on 17 March would not have come as a complete surprise.
The prosecution referred to the decision of AH v R[32] as a less serious example of this offence. In that case, AH sought assistance from others online in respect of a contemplated attack on police officers at an Anzac Day parade. The prosecution submitted that while the contemplated attack was more serious than here, the acts in preparation did not extend beyond online conversations with undercover operatives. AH pleaded guilty, was 16 years old at the time, and was suffering from a major depressive disorder which reduced his moral culpability. He also renounced his former extremist views. His sentence was reduced on appeal to seven years and six months’ imprisonment and a 75% non-parole period was fixed.
[32][2023] NSWCCA 230 (‘AH’).
In my view, focusing only on the objective gravity of the offending itself, that case provides a more serious example of this offence. The offender, AH, supported Islamic State, planned to attack ‘infidels’ and wanted assistance to make a bomb and obtain a gun. He became suspicious after a third covert operative contacted him, stopped responding and did not attend an arranged meeting. He was arrested later that day. His offending was not fleeting and he sought assistance over seven days. The judge at first instance assessed the offending as ‘above the low range’ and that assessment was not found to be in error.[33]
[33]Ibid [59].
For the reasons I have just been through, Charge Four is not a serious example of a very serious offence that can be committed in a wide range of ways. I would assess the offending here as being in the low range, recognising the imprecision that attaches to such assessments.[34] However, it is not trivial or of very low order. Further, while you cannot be punished for running a trial, you did not plead guilty and you still do not admit your crime.
[34]AH, [57], where the Court observed that ‘precision is illusory in any verbal scale of objective seriousness’.
Totality
Your counsel submitted that the ‘criminality involved in the membership offence adds little to the nature and circumstances of the offending seen as a whole’. I do not accept that submission. In my view, the criminality involved in the membership offence increases the seriousness of the offending when viewed as a whole. In some ways, the conduct that constitutes Charge One is more serious than the conduct that constitutes Charge Four, although the latter carries an available maximum penalty of life imprisonment, which reflects the seriousness with which such crimes are viewed. A degree of cumulation is called for. I must fix a single non‑parole period of at least three quarters of the aggregate of both sentences.[35]
[35]Crimes Act 1914 (Cth) s 19AG(2)(b). I note it is impermissible to discount the head sentence to compensate for or offset the effect of s 19AG and I do not do so. See Lodhi v R [2007] NSWCCA 360, [255]–[262]; Alou v R (2019) 101 NSWLR 319, [181].
Subjective matters
Personal circumstances
Both your parents are Kurds from the Kurdistan region of northern Iraq. Your father migrated to America, married and had one child, Tara, your older half‑sister. Your father then separated from Tara’s mother and returned to Kurdistan with Tara where he married your mother. You have an older brother, Ari, and you were born on 1 February 2002. Your birth certificate records that you were born in the Netherlands.[36]
[36]In evidence at trial, you said you were born in the Netherlands. See Transcript of Proceedings, DPP (Cth) v Sherani and Sherani (Supreme Court of Victoria, S ECR 2022 0076; S ECR 2022 0077, Fox J, 19 October 2023) 880.
According to Mr Coffey,[37] the family ‘returned’ to Australia when you were an infant and lived in Perth. In evidence, you said the family moved to New Zealand when you were aged five or six, and you believe you then moved to Queensland and then to Perth. You spent approximately five years in Perth but the family moved constantly and you attended six different primary schools. In Year 6, and without explanation, your name was changed from Alan to Aran.
[37]Psychological Report of Guy Coffey, clinical psychologist, dated 19 June 2024, [80] (‘Coffey Report’).
Your father was cruel, controlling and violent at times. He would punch you in the face over small things, such as a failure to tidy up, and enact cruel rituals, such as locking you in a cupboard for hours as punishment. You grew to fear your father. In 2013, your family moved to Italy. When you were aged around 13, your father made the family seek asylum in Austria. After lodging the claim, the family were placed by the Austrian authorities into a refugee camp. In that camp, you played the role of a Kurdish refugee, which involved subterfuge and lying, including lying to authorities who assessed your refugee claim. This was coordinated and forced on you by your father. You found being in the camp disorienting and you met genuine refugees, some with horrific war injuries including burns and missing limbs. The family’s fraudulent refugee claim was granted and you spent a brief period in Austria before travelling to Kurdistan to visit relatives. You felt a deep affinity with your relatives in Kurdistan and were troubled by how difficult their lives were. At this time, your sister discovered that your parents had concealed the fact that her mother was a US citizen. Apparently, your father responded erratically and feared he may be indicted under US law. The family then returned to Queensland, Australia. In late 2017, the family moved from Australia to New Zealand. Again, the move was dictated by your father who apparently feared he would be arrested in Australia for visa fraud. You remained in New Zealand for approximately two years.
Unsurprisingly, your education was highly disrupted. You missed more than a year of education while in Europe, the refugee camp and Kurdistan. The two years in New Zealand were among your most stable and you attended the local high school. You told Mr Coffey you completed the last three years of school in two years and achieved very good grades. You planned to study law at Auckland University but were relocated to Australia in December 2019 by your father. By this time, you had developed a passionate interest in the plight of the Kurds and Middle Eastern politics more generally. You were reading a great deal about the topic and recorded videos of yourself discussing the plight of the Kurds. Once in Australia, things did not go well. You applied unsuccessfully to study law at university. You also applied to join the Australian Defence Force, but apparently the application could not proceed because Covid‑19 restrictions commenced in March 2020. You found some work doing Uber deliveries but were largely disaffected and at home. Your plan for 2020 had been to immerse yourself in tertiary studies and create distance between yourself and your family, particularly your father. Instead, you found yourself locked down at home. Your father remained belligerent and would become enraged over the smallest thing. You were miserable and spending increasing time alone in your room and online. This led to the political and religious thinking that resulted in your membership of Islamic State.
Current beliefs and attitude to Islamic State
Evidence on plea
You gave evidence on the plea and were asked what you currently think about the Islamic State organisation. You said you have distanced yourself from them completely and oppose them philosophically and in every way. You said that since being in custody, you have been reading their magazines and were surprised by the weakness of their arguments.[38] You expressed no sympathy or empathy for the victims of their many terrorist attacks, both Muslim and non‑Muslim. You were asked:
QHow do you reflect upon what you thought and what you did during the charge period for this matter?
AAlso, uh I don’t really know how I got to that point. Um, looking at it retrospectively, it seems so unbelievable really how I even got there and I’m just very sorry for everything, for bringing this to the courts and to my family and just, you know, I wish I could undo what I did.[39]
[38]Transcript of Proceedings, DPP (Cth) v Sherani (Supreme Court of Victoria, S ECR 2022 0077, Fox J, 9 July 2024) 41.
[39]Ibid 49.
You still hold the same concerns about how Kurdistan is run and how the Kurdish people are treated. You remain ardent in your desire to assist the Kurdish people, but frankly conceded that you do not know how that can be done. You no longer believe Islamic State can help the Kurdish people, and said that would simply replace one evil with another.
Your said that at the time, you thought the reports of Islamic State atrocities committed against Syrian and Iraqi people were, in part, exaggerated or just misinformation. This struck me as a convenient way of not confronting the truly violent nature of Islamic State. I note you expressed similar sentiments to Mr Coffey.[40] You now believe ‘a lot of [the reports] are true’. In my view, you still need to confront how it is you formed extremist views that sanctioned unconscionable violence. Mr Coffey notes such psychological treatment will take months or years.[41]
[40]Coffey Report, [80].
[41]Ibid [124].
You said you have had contact with ‘Muslim chaplains’ since going into custody. Initially, you were at the Melbourne Assessment Prison, and saw Mr Mohamed Dedic weekly for three or four months. You continued to see him approximately fortnightly after you were moved to the Metropolitan Remand Centre. You discussed Kurdish politics and Islam with Mr Dedic, and said you found the discussions beneficial. He promoted the shift in your ideas.[42] Since being at Port Phillip Prison, you have seen a Mr Altaf weekly and continue to see him. You find Mr Altaf to be non‑judgmental and value the conversations you have with him.
[42]Transcript of Proceedings, DPP (Cth) v Sherani (Supreme Court of Victoria, S ECR 2022 0077, Fox J, 9 July 2024) 39.
Puzzlingly, Mr Coffey was not made aware of these discussions. I have not been provided with any material from either Mr Dedic or Mr Altaf. According to Mr Coffey, you told him you would consider discussing your beliefs with a learned Islamic leader in order to understand how you arrived at your mistaken view of Islam and work out what you believe now.[43] Given that, it is strange you did not tell Mr Coffey about your discussions with Mr Dedic and Mr Altaf. I do not draw any adverse inference from this, but as I observed on the plea, it creates a notable gap in the evidence of Mr Coffey. He provides no opinion as to what impact, if any, this has had on your thinking and prospects of rehabilitation.
[43]Coffey Report, [95].
Report of Mr Coffey
Mr Coffey interviewed you on several occasions and his report dated 19 June 2024 was tendered on your behalf. You told Mr Coffey that you feel relieved to now live according to a ‘practical and moderate form of Islam’.
In some ways, the report of Mr Coffey raises as many questions as it resolves when it comes to your current attitude to Islamic State and the practice of Islam. I note in particular the following observations, opinions and conclusions of Mr Coffey:
(a) Any conclusions he was able to reach about your current thinking ‘await confirmation’ during the course of your rehabilitation. In other words, his conclusions are untested.
(b) You continued to deny the offending on Charge Four when speaking with Mr Coffey. You persist with the same complicated explanation you gave at trial, which does not involve you ever planning to use the knife to threaten police.
(c) Mr Coffey was unable to assess your current interpretation of Islam and whether it is logical or truly moderate. I am in an identical position.
(d) You remain capable of suspending rational analysis when you see what you believe to be a ‘revelation of truth’. Your personality is not well integrated and your search for a set of religious precepts to live by has an ‘almost compulsive quality’. In my view, this makes you vulnerable to religious extremism, as you seem attracted to a religious ideology that will tell you how you should be living your life. Your ideas are in considerable flux.
(e) The opinions of Mr Coffey were more qualified than usual. In particular, while you told him you had renounced any allegiance to Islamic State or terrorism generally and appeared truthful, Mr Coffey could not exclude fabrication. Your understanding of why you formed an allegiance with Islamic State is also incomplete. According to Mr Coffey, when you were confronted with statements you made at the time, you deny you really meant it, which Mr Coffey describes as ‘as superficial acknowledgement of where his beliefs could have taken him’.
(f) According to Mr Coffey, your change of position exists only in your mind.[44] Your current interpretation of Islam is not scaffolded by authoritative opinion, social bonds or community. You express a desire to live apart from your family, something Mr Coffey described as a ‘need’. Beyond vague ideas of tertiary study and ‘having a family one day’, you seem to have little by way of practical plans as to what you will do when released.[45]
(g) You have shown yourself to be susceptible to religious extremism and continue to restlessly search for religious and ideological positions to live by. You remain attracted by the idea of an Islamic caliphate, albeit not one created through violent means.
[44]As noted above, Mr Coffey knew nothing of any discussions you have had with Islamic teachers while in custody.
[45]One working day prior to sentence and uninvited, the defence emailed the Court briefly setting out Mr Sherani’s study plans. It is inappropriate for any party to provide additional material between plea and sentence without first seeking the leave of the Court. The contents of the email do not alter my view as expressed in this paragraph.
Conclusion
I am prepared to accept, on balance, that you presently reject Islamic State and their violent ideology. Your reasons for this seem largely philosophical. You consider their evidence base weak, and now prefer an interpretation of scripture that you described as ‘more deconstructionist’. You also do not believe that Islamic State is a legitimate caliphate, and believe their idea of jihad is ‘very rigid’ and wrongly limited to warfare and fighting. You said you viewed the way Islamic State had treated non‑Muslims as ‘very barbaric’ but otherwise said nothing about their terrorist attacks on Western nations. In some ways, your evidence did not vary greatly from your trial evidence. At trial, you claimed you did not look at Islamic State material depicting graphic violence because ‘it’s disgusting’. Yet you were not so disgusted that you rejected Islamic State. If you are to be believed, you have or had a significant ability to overlook the inconsistencies and problems within your own views. On the evidence I have, there remains a risk that you could again become radicalised and dangerous, but it is unknown what you may or may not believe in the future.
Other matters
You have a single prior conviction for offending which overlaps with this offending. On 10 March 2021, you assaulted an innocent person who you disliked because they were homosexual. You filmed yourself saying you wanted to ‘terrorise the kuffar’ and harm them wherever they are. You pleaded guilty to one charge of intentionally causing injury and received seven days’ imprisonment. In evidence, you said that with hindsight, you regard what you did as very ugly and hurtful. In my view, and taking into account the opinions of Mr Coffey, your prior matter is consistent with your beliefs at the time and your adherence to a violent ideology, but is not indicative of a general tendency to behave violently.[46]
[46]Coffey Report, [107].
You were remanded during the Covid‑19 pandemic, and frequent lockdowns were continuing. As a result, you experienced more difficult conditions in custody. Prisoner movements were restricted, and prisoners were largely confined to their cells during lockdowns. Personal visits were suspended at times, and as a young, first‑time prisoner, this would have been stressful and isolating. Access to courses and programs was also reduced or suspended. I accept that being on remand during the pandemic would have been more burdensome than usual, and this mitigates the sentence I would otherwise impose.
Your youth remains a relevant sentencing consideration. It has less primacy given the nature of the charges, but nonetheless you are a young, first‑time offender and your rehabilitation remains an important sentencing aim. There is great public benefit in the rehabilitation of a young offender, and maximising the prospect that they will live a productive and law‑abiding life. You were only 18 years old when you embarked on the path that led you here. I accept your immaturity played a part in your offending, particularly given the unstable nature of your upbringing.
There are a number of matters that speak favourably to your prospects of rehabilitation. First, as I have been through, you have renounced Islamic State and that is a positive and significant matter. Further, as noted by Mr Coffey, you respect Australian institutions including the government, courts and police. Your conduct before me has always been respectful and appropriate. You do not have a history of violence, and Mr Coffey did not identify any features of your personality associated with a risk of violent offending or criminality more generally. You have no history of aggression, dishonesty or anti‑social behaviour. You are intelligent, and have always enjoyed school and learning. The explanation as to why you were attracted to Islamic State is not straightforward. On one view, it is complex, transactional and at times inconsistent. However, whilst I do not accept all of what you have said, I do accept that the extreme violence engaged in by Islamic State is not what drew you to them.
You are well supported by your family. While it was not referred to on the plea, I am aware from other material that your family were concerned about your increasing radicalisation and tried, unsuccessfully, to intervene. Your father has been supportive and it seems your relationship has improved, but given the role he has played in your life thus far, I am less sure that relationship will prove positive in the future. I also note that, according to you, your father approves of violence used by the PKK to achieve political ends.[47] Your mother is supportive and says you are remorseful, although at one point she referred to your offending as a ‘regrettable mistake’, which is not an apt description of your serious and deliberate criminal conduct. Nonetheless, the support of your parents, and their condemnation of the views you held which are not condoned in Islam, is a positive factor in your favour. Your older sister, brother‑in‑law and two friends also provided character references. They all consider your offending to be out of character. Prior to this, they found you to be intelligent, gentle, empathetic and sensible. They all remain supportive, and will support you upon your release.
[47]Coffey Report, [69].
Your counsel submitted that you are intelligent and passionate, and this bodes well for your prospects of rehabilitation. However, while you may be intelligent, you are largely self‑taught and autodidactic. This method of learning makes it easier for you to side‑step inconvenient facts, or rationalise inconsistent or incompatible concepts.
Assessing an offender’s prospects of rehabilitation is never simple, but in your case it is particularly complex. To be blunt, you seem capable of being pulled in different directions, and you remain susceptible to radical ideas if they appeal to your intellectual and philosophical understanding of Islam. On the other hand, if you remain committed to a more moderate, non‑violent interpretation of Islam, engage with rehabilitation programs, and accept learnings from non‑radical teachers and mentors, your prospects of rehabilitation are good.
You have been held in isolation since September 2023, when your trial commenced.[48] The conditions are fairly described as harsh; you are confined to your cell for 22 hours a day and only permitted a two hour ‘run out’, separate from other prisoners. You have telephone contact with your family, and your parents visit weekly. In evidence, you said you were told the reason for being placed in isolation was because you were ‘recruiting or radicalising people’. You deny this. You said you have never been provided with details as to what you did and who you were radicalising, despite asking.[49] Your counsel submitted that it has been a ‘very long time’ since anyone from ‘MOU’ (the management unit of the prison) reviewed your position, despite requests from your solicitors.[50] Your Corrections file, which may have provided some answers, was not subpoenaed by those acting for you.[51]
[48]In evidence and in response to a leading question, you agreed you were transferred to Port Phillip Prison and held in isolation in approximately September 2022. This should be September 2023. See also, Coffey Report, [38].
[49]Transcript of Proceedings, DPP (Cth) v Sherani (Supreme Court of Victoria, S ECR 2022 0077, Fox J, 9 July 2024) 46.
[50]As noted in n 47, one working day prior to sentence, the defence emailed the Court. The email provided an ‘update’ as to Mr Sherani’s prison conditions. He is now in a different prison but the conditions are essentially unchanged.
[51]It was open to the defence to take this course. Material from Corrections and Justice Health is commonly obtained to explain or support a submission as to the circumstances of custody.
I take into account that being held in isolation for approximately 13 months has made your time on remand considerably more onerous. However, as I said at the hearing, I am unsure why you are there. You dispute the reason you were given, but no other reason has been provided. I have no information as to whether you are likely to remain in isolation, and if so, for how long. I cannot assume you will remain there. The absence of information makes it difficult to do any more than take the matter into account in a broad sense, which I do.
Sentence
Both parties referred me to a number of authorities, only some of which I have referred to in the course of these reasons. Those decisions were of assistance, particularly insofar as they set out the principles to be applied when sentencing for these types of offences. However, as is frequently said, each case ultimately turns on its own individual facts.
Any person who chooses to join Islamic State and commit offences in their name should expect, if detected, to face a substantial term of imprisonment. The threat posed by such terrorist organisations to Australia’s secular, democratic and peaceful way of life is ongoing. You embraced a depraved ideology and sought to advance that ideology through your own actions. While what you did is far from the most serious example of terrorism offending, it is nonetheless serious offending that must be publicly denounced.
On Charge One, you are convicted and sentenced to four years’ imprisonment.
On Charge Four, you are convicted and sentenced to seven years’ imprisonment.
It is my intention that 12 months of the sentence on Charge One be served cumulatively upon the sentence on Charge Four. I direct that the sentence on Charge One commences today. The sentence on Charge Four commences 12 months from today, on 10 October 2025. This makes a total effective sentence of eight years’ imprisonment. I fix a non‑parole period of six years’ imprisonment.
I declare you have served 1296 days by way of pre‑sentence detention, such time to be reckoned as time already served under this sentence.
Section 6AAA of the Sentencing Act 1991 (Vic) applies only to Charge One.[52] I declare that but for your plea of guilty on that charge, the sentence I would have imposed is a sentence of five years and four months’ imprisonment.
[52]Although it has not been authoritatively determined whether this requirement applies to the sentencing of a federal offender, in a number of cases the Victorian Court of Appeal has proceeded on the assumption that it does. E.g. Scerri v R [2010] VSCA 287, [58]; DPP (Cth) v Bui (2011) 32 VR 149; Cooper v R [2012] VSCA 32, [38]; DPP (Cth) v Cornish [2012] VSCA 45, [56]; Saab v R [2012] VSCA 165, [29]–[62]; DPP (Cth) v Couper (2013) 41 VR 128; DPP (Cth) v MHK (2017) 52 VR 272, [76]; DPP (Cth) v Besim [2017] VSCA 158, [122]; DPP (Cth) v Wang [2019] VSCA 250, [95]; Nipoe v R [2020] VSCA 137, [28]–[31].
Pursuant to s 16F of the Crimes Act, I am required to explain to you the purpose and consequences of fixing a non‑parole period in language you are likely to understand. The non‑parole period is the minimum time you must serve. That means you will remain in prison for at least six years. If, at the end of six years, you are considered suitable for release on parole, then you will serve the balance of your sentence in the community. During that period, you will be on parole and subject to conditions. If you fail to comply with your parole conditions, and you have no reasonable excuse for failing to comply with your parole conditions, then your parole will be cancelled and you will return to prison to serve the balance of your sentence.
Pursuant to s 105A.23 of the Criminal Code, I must also give you this warning. An application may be made under Division 105A of the Criminal Code for a continuing detention order requiring you to be detained in prison after the end of your sentence for these offences.
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