Director of Public Prosecutions v Kocoglu

[2019] VCC 1838

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01526

DIRECTOR OF PUBLIC PROSECUTIONS

v

ISA KOCOGLU

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 November 2019
CASE MAY BE CITED AS:	DPP v Kocoglu
MEDIUM NEUTRAL CITATION:	[2019] VCC 1838

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. D. Renton	Office of Public Prosecutions
For the Accused	Mr. R. Nathwani

HIS HONOUR: 

1Isa Kocoglu, you have pleaded guilty to 2 charges of giving money to another person with the intention of supporting or promoting the commission of an offence against the Crimes (Foreign Incursions And Recruitment) Act 1978 namely, engaging in hostile activity in a foreign state namely Syria, contrary to section 7(1)(a) Crimes (Foreign Incursions And Recruitment) Act 1978. Each of these crimes carries a maximum penalty of ten years' imprisonment.

2You have no prior convictions. You have one subsequent matter which is irrelevant to the sentencing consideration in this case.

3The Crown tendered a prosecution summary of opening on plea.  A brief summary of your offending is as follows.

4The first offence occurred between 21 July 2014 - 4 August 2014 and involves the payment of a total of $2610.  The Crown alleges that between 1 July - 24 July 2014, three amounts totalling AUD $2610 were deposited in your account by others including the person Neaz.  Thereafter on 21 July 2014 and 4 August 2014 you transferred amounts to the PayPal account of Oman Sesay with the intention that he, Sesay, transfer that money to John Georgelas.

5This second offence occurred between 25 August 2014 and approximately 10 September 2014 and involves a payment of USD $103.07.  In this date range and occasion, amounts totalling a few dollars over USD $103.07 was paid into your account on 25 August and 10 September respectively and you transferred the sum of USD $103.07 to an Internet Service Provider account.  This payment was made with the intention of benefiting John Georgelas by enabling him to maintain his Internet website.

6It is necessary to say a little more about the background to your offending.

7At the time of your offending you resided with your wife and children in Hampton Park. You were receiving a disability support pension due to depression and obesity.

8At the same time, John Georgelas was a US citizen who was engaged in hostile activities in Syria. Also at the time of your offending you were aware that Georgelas was a member of Islamic State (IS) which was listed as a terrorist organisation on 2 March 2005 under its former name Al Qaeda.  In 2013 it was relisted as ISIL and then on 11 July 2014 was relisted again as IS.

9Authorities believe that Georgelas created the website ghuraba.info.  Although it was initially intended be an online forum for people interested in a particular school of Islamic thought, the website became a forum to promote and support IS.  Georgelas posted material supporting IS on this website and this included his public declaration to IS on 1 July 2014.

10At the relevant time, you were the administrator of a restricted Facebook group named “We Hear, We Obey”.  Your role as administrator was to enforce the rules of the group, to add or block members, to post material from Georgelas and to actively seek donations.  This group, and you within this group, participated in a number of online chats with various individuals, including Georgelas, regarding your strong support for IS, the obligations to support all of the pillars of Islam, and the transfer of funds to support Georgelas.

11You were aware Georgelas was in Syria from at least 22 November 2013.  You were aware that Georgelas had been injured by shrapnel in Syria and that he returned to Syria after receiving treatment in Turkey.  Images of an injured but recovering Mr Georgelas were saved on your computer on 7 July 2014.

12At the time of your offending, that is, in the time period in which you were transferring money with the intention of supporting John Georgelas, you posted statements online and engaged in conversations, which, amongst other things:

(a) Encouraged others to keep an open mind about IS;

(b) Expressed support for Abu Bakr al-Baghdadi and the legitimacy of his role as Khalifah;

(c) Expressed that you were “open to the world regarding IS”; and

(d) Directed an online viewer where to find your piece addressing claims against IS.

13Moreover, you engaged in constant online conversations with John Georgelas. When the first payment of $2360 was made on 25 July 2014, you told Georgelas that “the money was donated by Muslims for whatever you deem fit”.  It is also accepted that you expressed the desire that some money be used to support the Syrian people by buying a small amount of dates and barley.

14The payments in respect to the second charge were in response to requests from Georgelas for money to keep his Internet account open.

15In the period after the date of offending and up to about 23 November 2015, images and material was saved to your computer advocating violence, advocating IS and there was material discussing the Sydney Lindt Café siege.  In mid-2014 as administrator of “We Hear, We Obey”, you banned members of the restricted Facebook group for badmouthing mujhadin.

16There was continued communication with Georgelas after the offences were committed; however communication was limited as it was believed that Georgelas was held in custody for about a year up until late September 2015 after which he was released.

17It is important to make a couple of observations at this point.  First, much of what I have stated is simply background to the offending in order to put the payments you made into context.  They do not represent ongoing aspects of the offending, nor do they represent separate offences themselves.  Rather, I outline the fact that you were a supporter of Georgelas and a supporter of the IS regime and its activities.

18The second, important and related point is that your support by the payment of money to third person accounts was made with the intention of supporting Georgelas proselytising on IS. 

19In other words, the payments you made and therefore the offences you committed were not with the intention of supporting the purchase of armaments or ammunition but the spreading of the word of IS by providing funds for the support and maintenance of the website, accounts and platforms through which Georgelas expressed his views.

20On 29 June 2016, AFP officers executed a search warrant at your home and seized a computer, hard drives, SD cards and a USB stick.  Examination of the material contained on those items found files associated with violent extremism dating back to 2005.

21In a record of interview conducted by the AFP with you on that day, you admitted your conduct but you did not admit or acknowledge that your conduct was criminal in nature. In other words, you did not accept full responsibility or demonstrate insight into criminal nature of offending on the date of your interview. 

22The Crown submits, and the defence accepts, that the answers given in the record of interview are demonstrative of the beliefs that you held during the period of the offending which were necessary to the state of mind that you must have held in order to criminalise your behaviour.  The Commonwealth expressly stated however that this was not an aggravating feature; it simply demonstrated the necessary mental or fault element of your conduct.

23In the context of the plea that has been subsequently entered, it is important however to point out that you did not hide your actions in the course of the record of interview. It is also important to point out that although you were offered the opportunity to seek legal advice before the commencement of the record of interview, you did not take the opportunity to even speak to a lawyer before answering the AFP questions.

24At a point after you were arrested, you were held in custody for 31 days.

25Since you were released from custody, you have spent over three years complying with stringent bail conditions.  Those bail conditions required you to report to your local police station daily, to comply with a curfew, to present to police at your front door during the curfew if required, there was a considerable restriction on your use of Internet, there was a prohibition on the use of social media platforms and restriction to use of a single nominated handset and SIM card.  There were other restrictions on travel, movement and attending international points of departure.

26Whilst many in the community may not consider these a particular hardship, your counsel made the point that you had adhered to these conditions rigidly. Before I turn to other considerations, it is necessary to return to the objective gravity of your offending and to the question of your moral culpability.

27Your plea of guilty was entered only weeks before you were due to stand trial. Ordinarily, a plea of guilty entered so late in the proceedings does not carry as much weight as one entered early in the proceedings. 

28In this case, however, I must take into account the fact that you have pleaded guilty to a much reduced indictment.  The fact of negotiations between the Prosecution and Defence reducing the number of charges you face, according to the evidence, avoids the need for a long, protracted and complex trial involving the time and resources of the Prosecution, Defence and police, and the use of public resources of the Court and a jury. 

29This saving to the justice system and your acknowledgement of your guilt largely facilitates the course of justice and has considerable utilitarian benefit. The law recognises that this should result in the mitigation of your sentence.

30Returning to the objective gravity of your offending, I start this analysis by referring to a view expressed by Lasry J as to the objective seriousness of offences that are committed within this provision:

The objective seriousness of this conduct can be assessed without reference to offences which are different and which carry a different maximum penalty.  The intention to engage in hostile activities in a foreign state is not the same as an intention to engage in an act of terrorism in Australia but is nonetheless a serious offence.  Conduct done with intention to engage in hostile activities in Syria has the potential to affect Australia’s international relations and it is obviously contrary to the country’s national security interests.'

31In my view, this statement does much to capture the objective seriousness with which your offending must be viewed.  On the one hand, despite the views you held, you were not intending to fund the purchase of arms or ammunition in Syria; nor were you planning any terrorist activity in Australia.  Furthermore, there is no evidence that you were or are a threat to community safety. 

32On the other hand however, because of your strongly held views on the legitimacy of IS and of the caliphate, you decided to contribute a relatively small amount of money to enable Georgelas to engage in hostile activities through spreading the word of a recognised terrorist organisation.  That organisation, in turn, has been involved in extreme violence and killing.  Conduct such as yours has been unlawful in this country for many years.  As such, I must view your offending as objectively serious.

33Moreover, in my view, offences committed under the Crimes (Foreign Incursions and Recruitment) Act 1978 must attract principles of punishment, deterrence, denunciation and protection of the community. These are well understood and significant sentencing principles.

34I note, however, as to the last principle, I have already concluded that you did not intend harm, or pose a threat to community safety in Australia.  Indeed, as I have already mentioned apart from funding his Internet platform and telling Georgelas to use the money as he saw fit, you had mentioned that a small amount of money should be used to purchase dates and barley for Syrian people.

35Accordingly, although this is serious offending, it is not the most serious example of this type of offending.  When I compare your offending to that upon which Lasry J was called to sentence in the matter of Hassan El Subsabi, I consider the objective gravity of your offending to be lower.  You contributed less money, your intention was to support Georgelas's Internet account and platforms and your offending occurred on far fewer occasions and over a lesser period of time; in all about seven and a half weeks. 

36It is important to have regard to like cases so that there may be a broad consistency in sentencing approach.  That is not to say that I am compelled to follow the course taken by Lasry J.  I am not.

37It is not what is referred to, often in the public, as a precedent by which I am bound.  It is, however, a useful example of a sentence imposed by a superior court and by a Judge with long experience in hearing trials and pleas under this legislation and the succeeding legislation.

38In the case of El Sabsabi, Lasry J heard that there were 11 transfers made by the offender in that case between June 2013 - September 2014 and involving a total sum of almost $16,000.  Moreover Lasry J concluded that El Sabsabi’s contributions were made with intention of enabling the person in Syria to engage in hostile activities which appeared to involve violence and killing.

39In that case, it was ordered that the offender be imprisoned for 44 days (being the time he had already served) and then be placed on a community corrections order for a period of two years.  I note that the offender in that case was a young man in his early 20s.

40I turn now to the question of your moral culpability.  The Commonwealth points to the fact that you and you alone engaged in this activity, you sought funds from others and transferred money to third person accounts for the benefit of Georgelas. 

41In this respect, you can point to no other person being truly responsible or complicit in your decision to transfer money to Georgelas.  In this respect I put aside the question of transfers to and by Sesay and Neaz.

42However in submissions it was stated that you appeared “infatuated” with Georgelas.  Mr Nathwani with Ms Lynch on your behalf, developed a submission that you were in fact groomed by Georgelas.

43In my view, when I look at the references to the conversations between you and Georgelas, there is much support for the likelihood of this submission. I note however, as I did this morning, that it cannot be ignored that your interest in extreme violence and the work of these organisations dated back before your offending and as far back as the Year 2005.  Moreover, it continued past the period of your offending, into late 2015.  Despite that interest however, it is upon the payments made to Georgelas that I concentrate.

44In any event, I do not consider that there is much difference between the submissions of infatuation and grooming.  Put another way, I consider when I look at the conversation threads provided to me and the references made in the written submissions of defence counsel, there was a building in trust, faith and your belief that Georgelas was worthy of your support.  It was only after that building process, that your financial support for his Internet activity commenced and came, at least in part, at his request.

45Mr Nathwani also submitted that I should consider your moral culpability in light of the background of tragedy and the low point which led you to spend more time online isolated at night at your home. 

46By this, I am referring to the tragic death of one of your young twin sons in a terrible house fire on 24 April 2011. This, it was submitted had sparked your depression and caused you to spend more time online examining your faith and Islamic ideas.

47This led you to Georgelas.  Of course, it must be recognised that this cannot be the entire explanation for leading you into an examination of violent extremism and the terrorist organisation of IS, because material was found on your computer relating back as far as 2005. 

48Nevertheless, it is easily imaginable that these factors had some role to play.  It is impossible, however, for me to make a full assessment of this, as I was not provided with any psychological or psychiatric or indeed any medical material which specifically examined this matter.

49In the end, I conclude that your moral responsibility for your offending must remain relatively high.  As a mature man with a good work history, a good education, you have raised a family, and you have a good and long background in Australia, I can only conclude that you knew what you were doing when you were making those payments and that you knew what you were saying when you were talking about supporting IS.

50I turn now to your personal circumstances.  You are 45 years of age and born on 14 February 1974.  You were 40 years of age at the time of this offending.

51You were educated in Australia up to Year 11 but struggled academically.  You then completed your schooling in Turkey and commenced a university degree in Arabic theology in Turkey, which you did not complete.

52On returning to Australia you worked in call centres and in factories, however you have not held any formal employment for about 10 or 12 years, and as I say, you are now on a Disability Pension relating to your obesity and depression.

53Over the course of your adult life, it appears your health and mental health have deteriorated.  You gained a considerable amount of weight in your early 20s despite attempting multiple diets.  Your mood has fluctuated and it appears that you were diagnosed with bipolar affective disorder with long-standing depression, however I do not have any detailed or up-to-date medical reports outlining your current condition. 

54It appears you are largely distrustful of doctors, although a brief report from Dr Dulip Dhamarage, psychiatrist, reports to your GP that you were seen on 28 August 2019 for a single assessment and then referred back to your GP for possible medication with an antidepressant. 

55Dr Dhamarage notes that you were resistant to being placed on a medication regime and preferred to take multi-vitamins.  No further evidence was provided to me to suggest that a medication or further treatment regime has been adopted since that time in respect to your mental health and health issues.

56I was told that since your arrest on these matters you have suffered insults, disparagement and consequent isolation in your local community.  You have the support of your wife and children, and it was apparent from the references provided to me that you were supported by a number of family members and remain supported by a number of family members.

57In his submissions before me, Mr Nathwani stated on instructions that you had renounced the ideology of IS.  No evidence of express renunciation was put before me.  Mr Nathwani developed the submission that the best evidence of your de-radicalisation and rehabilitation and remorse came from the following:

·    There has been no offending five years;

·    Since your arrest, you have served a period of imprisonment on remand, you have complied with stringent bail conditions and you have led an insular life which has kept you away from electronic communication through the Internet, social media platforms and the like;

·    Your character references show you to be a family man who previously could be considered an upstanding member of your community who has suffered a large adverse impact over the last number of years because of these proceedings; and

·    You have suffered a deal of shame that you feel on a daily basis.

58From these, together with the plea of guilty to the recently negotiated indictment, Mr Nathwani submits there is ample implicit evidence that you are remorseful, you have de-radicalised and that you have good prospects for your rehabilitation.

59Initially at least in the defence written submissions and on the first day of hearing, the defence submitted that the time served on remand was adequate punishment for both charges on the indictment. 

60As a secondary position today, it was submitted that the time served was sufficient to meet charge one on the indictment and that a recognisance release order pursuant to s.20(1)(a) Crimes Act 1914 to be of good behaviour for a period of time was sufficient to meet the second charge on the indictment.

61Mr Renton who appears with Mr Manning to prosecute this matter on behalf of the Commonwealth submitted that due to the nature and seriousness of the offending, a term of imprisonment was the only appropriate sentencing option. However the Commonwealth also submitted the following:

·    Whether the offender is sentenced to time already served or to a further term of imprisonment is a matter for the court;

·    Whilst the Crown would not urge a higher sentence, the Crown would not say that a higher term of imprisonment is not open.  This also is a matter for the court; and

·    A community corrections order or a recognisance release order with conditions in addition to a sentence of imprisonment was open and appropriate.

62As the submissions of both the Prosecution and Defence developed over the course of the first day of the hearing and again today, it became apparent or at least accepted, that the sentence of imprisonment could be met by the 31 days pre-sentence detention already served in satisfaction of all sentencing principles and requirements in respect to charge one on the indictment; that is, subject to my view as sentencing judge as to whether a further term of imprisonment was warranted.

63The real issue of dispute between the Prosecution and Defence then turned to the appropriate penalty to be imposed on charge two on the indictment.  As the submissions developed, the position of the Commonwealth was that a recognisance release order with conditions principally of supervision, and mental health assessment and treatment under the auspices of the Victorian Office of Corrections was an appropriate sentence to impose on Charge two.

64Essentially, Mr Renton developed the submission from the Commonwealth concern that your long-standing mental health issues have been noted but never comprehensively treated; and that there remain concerns that there is no proper evidence that you have denounced the ideology of IS.

65The Commonwealth does not accept that the instructions voiced by Mr Nathwani in answer to questions put by me on the previous occasion should satisfy me that you have indeed renounced the ideology of IS.

66Much of this morning was spent in exchanges with both Prosecution and Defence counsel as to whether appropriate conditions could be formulated on a recognisance release order to address the Crown concerns.

67The Crown further submitted that whilst it was open for me to impose a period of imprisonment on the second count, it was equally open to impose a recognisance release order (RRO) under either sections 20(1)(a) or 20(1)(b) Crimes Act.  A RRO under 20(1)(b) could involve the imposition of a term of imprisonment but with release forthwith.  The term of imprisonment would in effect would be suspended on condition of your good behaviour.

68Ultimately, I have decided that a period of imprisonment is required is to be imposed on the first charge.  Although the amount of money paid was relatively small, certainly in comparison to other cases such as El Sabsabi, it was an amount that was largely but not wholly directed towards enabling Georgelas to continue his work of disseminating his proselytising of IS through the internet, IS being a recognised terrorist organisation.

69I have given a deal of consideration as to whether you should be ordered to serve more than the 31 days which you have already spent on remand.  In the end, I have decided that it is not in the interests of justice that you return to prison.  In this respect I take into account the following:

·    The relatively short period of time over which this offending occurred;

·    The amount of money involved;

·    The purpose for which the money was paid and in particular, that it was not paid for the purpose of funding arms or ammunition;

·    The time that has passed since the commission of the offence which is now about five years and three months, and your conduct since that time; and

·    I also have had regard to the sentence and reasons of Justice Lasry in
El Sabsabi.

70In the end, the sentence I must impose on each of the two counts must not only reflect the sentencing principles I have already referred to: deterrence, denunciation and protection of the community; but also, the sentence I impose must be proportionate to the offending.  Proportionality means exactly that.  The sentence I impose must not be crushing or overwhelming when it comes to considering the actual criminality involved.

71Nor is a sentence such as this to act as a de facto control over your thoughts and conduct into the future.

72I have given a deal of consideration to the appropriate sentence to be imposed on Charge 2.  It must be remembered that this charge ranges over a 16 day period and involves the payment of USD $103 to a third party Internet service provider in order to keep the Georgelas Internet accounts open.

73I do not consider the question of remorse or rehabilitation to be entirely resolved.  In the circumstances, the penalty on this charge must reflect the sentencing principles but it is not mitigated to the same extent as if rehabilitation and remorse were entirely manifest. 

74That is not to say that rehabilitation and remorse are entirely absent.  The disposition I propose on Charge 2 will not in any way restrict you in carrying out lawful day to day activities.  It is a way however, of keeping you accountable over the next period of time.  

75It is implicit from what I have just said, that I do not consider it is appropriate to simply subsume this charge within the penalty I propose for Charge 1. 

76In other words, I consider that Charge 2 should be met by a separate and distinct penalty.  When I have regard to the five factors I have just outlined affecting my sentencing consideration in relation to Charge 1, and then apply them to this charge, I conclude that a period of imprisonment is not appropriate.

77By that, I mean that a further period of imprisonment should not be served and it is not appropriate to impose a recognisance release order under s. 20(1)(e) Crimes Act. 

78Rather, I intend to proceed under section 20(1)(a) Crimes Act and impose a recognisance release order upon you for a period of 12 months on condition that you are of good behaviour.

79I have considered the conditions proposed and sought by the Commonwealth. I acknowledge again that the conditions sought by the Commonwealth seek to address the two concerns identified: that is, your unresolved and untreated mental health issues and the lack of clear evidence that you have renounced the ideology of IS.

80Ultimately however, I have concluded that proportionality in sentencing does not require such conditions to be made.  In this respect, I consider it is important to note that you have not committed any further offences in the last five years, and that you are a person who was previously without prior convictions.  It is a matter for different authorities as to whether they will take action towards seeking a control order.  I simply note again it is not part of the sentencing process today for me to take that action.

81Accordingly, the orders I propose are as follows. 

82On Charge 1, you are convicted and sentenced to a term of imprisonment of 31 days.  I declare the period of 31 days pre-sentence detention reckoned as already served.

83On Charge 2, you are convicted and ordered to be released forthwith without a sentence being passed upon you upon a recognisance in the sum of $500 to be of good behaviour for 12 months. 

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