Director of Public Prosecutions v Sa'Adat Khan
[2022] VCC 959
•10 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-01371
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HADASHAH SA’ADAT KHAN |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 & 9 March, 27 & 31 May 2022 | |
DATE OF SENTENCE: | 10 June 2022 | |
CASE MAY BE CITED AS: | DPP v Sa’Adat Khan | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 959 | |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Provide support or resources to a terrorist organisation - fail to comply with an order under section 3LA Crimes Act 1914 (Cth),
Legislation Cited: Sentencing Act 1991 (Vic), Crimes Act 1914 (Cth)
Cases Cited:The Queenv EB [2018] NSWSC 201,
The Queen v Cerantonio & Ors [2019] VSC 284Sentence:2 years and 6 months' imprisonment, non-parole period 1 year and
11 months
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr S. Ginsbourg | Commonwealth Office of Public Prosecutions |
| For the Accused | Mr R. Nathwani | Massi Ahmadzay & Associates |
HIS HONOUR:
1 Hadashah Sa’Adat Khan, you have pleaded guilty to Charge 1 of providing support or resources to a terrorist organisation, namely Islamic State, between the 15th and the 20th of June 2016, for which the maximum sentence is imprisonment for 25 years, and you have pleaded guilty to Charge 2 of failing at the time of your arrest on 25 February 2020 to comply with an order requiring you to provide the passcode for a mobile phone pursuant to a warrant relating to a serious terrorism offence, for which the maximum penalty is imprisonment for 10 years.
2 I do not wish to keep you in suspense any longer and I propose to sentence you as follows now and give my reasons following that.
3
On Charge 1 you are convicted and sentenced to imprisonment for
two years and five months.
4 On Charge 2 you are convicted and sentenced to imprisonment for three months.
5 The sentence on Charge 2 will commence today. The sentence on Charge 1 will commence one month from today.
6 The total effective sentence is imprisonment for two years and six months.
7 I fix a non-parole period of one year and 11 months.
8 I declare 836 days of pre-sentence detention as time already served on the sentence I have imposed.
9 Pursuant to s6AAA of the Victorian Sentencing Act, I further declare that but for your pleas of guilty, I would have sentenced you to imprisonment for four years with a non-parole period of three years.
10 My reasons for those sentences are briefly as follows.
11 The facts concerning your offending are set out in detail in the prosecution opening for plea dated 2 February 2022, which is Exhibit A on the plea hearing. I summarise them briefly as follows.
12 In relation to Charge 1, after providing some context by reference to the history and operations of Islamic State in Syria, Exhibit A describes how, in June 2016, when you were 18 years of age, you communicated over a five-day period via online messaging platforms with an 18-year-old male resident of the USA. In those communications you provided support or resources to Islamic State, a terrorist organisation, by facilitating the entry of that male into Syria to join Islamic State in military combat against the government of that country. You did so by advising the young man what he needed to do to enter Syria and to join Islamic State and by communicating with two other intermediaries to facilitate that outcome.
13 On 21 June 2016, a young man was arrested in the United States by agents of the US FBI as he commenced his journey to Syria. The FBI established that you were in communication with him up until a day prior to his arrest. The FBI were able to extract from his mobile phone records the communications between the two of you to which I have referred. You were implicated in his offending.
14 You were first arrested on 23 January 2018 when police seized a number of electronic devices upon which they discovered evidence of your interest in Islamic State and your adherence to the ideology of violent jihad. You were interviewed by police on that day and made false denials of offending conduct. You were not charged at that time and were released from custody.
15
As a result of evidence received from the United States, which obviously took some time to come because of the difficulties with mutual assistance in criminal matters requiring formalities to be complied with, you were arrested again on
25 February 2020.
16 On that date police executed a search warrant at your home address. During the search of your bedroom a mobile phone was seized. Pursuant to the warrant, you were required to provide the passcode for that phone. You claimed that the phone belonged to your mother, and you failed to provide the passcode. Police were subsequently able to extract data from the phone which revealed videos and images evidencing your continued support for Islamic State and for the ideology of violent jihad.
17
Apart from a short period on bail in 2021, you have been in custody since
25 February 2020. Self-evidently, your period of incarceration on remand has been beset with extra restrictions and the hardships necessarily brought about within the prison system by the COVID pandemic.
18 During the plea hearing, I was also provided with letters exchanged by you and a fellow female prisoner reported prior to August 2020. Those letters were marked respectively Exhibits B, C, and D on the plea hearing, and they were relied on by the prosecution as evidence of your continued adherence to the ideology of violent jihad.
19 That evidence does suggest that, although I note that you made some explanation to Ms Lowe during the course of your interviews with her to the effect that you were endeavouring simply to ingratiate yourself with the person concerned.
20 The context in which those letters became relevant and were discovered by authorities is that that person committed a further terrorism offence within the prison system. You were initially suspected of being implicated in it. Subsequent investigation exonerated you.
21 Nevertheless, the prosecution relies upon the letters as showing a continuing adherence to Islamic State at least until August of 2020. A good deal of time has passed since August of 2020.
22
Turning to matters personal to you. You were born in January and are now
24 years of age. You have no prior criminal record. You first indicated an intention to plead guilty on 2 December 2021, although I note that there had been lengthy negotiations between the parties prior to that date, leading finally to agreement as to the appropriate charges on a re-drafted indictment to which you have now pleaded guilty.
23 The indictment was not re-drafted in its agreed form until after the informal conference that I conducted with the parties in November of 2021 to promote further discussion between the parties. I regard the resultant agreement on the indictment to which you have pleaded guilty as a sensible resolution of issues which were not straightforward for either party. Therefore I do not regard your pleas of guilty as late pleas and I propose to give you substantial credit for them particularly during the COVID pandemic.
24 Your counsel provided me with the following documents:
- plea submissions dated 7 March 2022, Exhibit 1;
- a report from Ms Peta Lowe, dated 8 March 2022, Exhibit 2;
- an addendum report from Ms Lowe dated 13 March 2022, Exhibit 3;
- reports from Ms Pamela Matthews, psychologist dated respectively, 7 September 2020 and 28 February 2022, Exhibits 4 and 5 respectively;
- an addendum report from Ms Matthews dated 7 March 2022, Exhibit 6; and
- a Prisoner Education Summary Report dated 1 October 2021, which is Exhibit 7 - it points out some of the further education that you have taken up during your period of incarceration.
25 The reports of Ms Lowe and Ms Matthews provide useful information about your background and family history. You were born in Afghanistan. When you were aged about three, your father moved to Australia to escape the war with intention that your mother and your two older brothers would join him when arrangements could be made. Your father obtained work and sent money back to your mother. She took you and your brothers to Pakistan in 2003 before she was ultimately able to reunite the family in Australia. She arrived with you and your two older brothers in 2007, and you settled in Dandenong North. You were nine years of age at that time. You now have two younger sisters and a brother who have been born to your parents since your arrival in Australia.
26
I am told that your whole family continues to live together in a modest
three-bedroom house. None of your family members has any criminal history or prior dealings with the police. Your older brothers are working. Your father, unfortunately, suffered a workplace injury and is no longer able to work.
27 When you arrived in Australia you did not speak any English. You started school in Grade 4 but were required to repeat that year. You had few friends at school and were bullied. You left school after completing Year 10, and rather than enter the workforce you were required to stay at home to assist your mother with household chores.
28 You returned to Afghanistan for two months in 2012 with your mother and two younger sisters. You observed violence and found the experience confronting and traumatic. Upon your return to Australia, I am told, you felt isolated and disenfranchised.
29 The psychological reports identify depressive symptoms and PTSD arising from traumatic childhood experiences during your time living in Pakistan, the details of which are documented in the reports of Ms Matthews. You have a history of self-harming, suicidal and ruminating thoughts of childhood experiences and sleep broken by nightmares.
30 I infer that the origins of your radicalisation arose during a period of relative isolation from your peers after leaving school at the age of about 16 years, during which you found solace in relationships you were able to form with Muslims of similar age who you were able to contact online between 2014 and 2016.
31 It is common knowledge it was during that period that the terrorist organisation Islamic State rose to prominence in its hostile activities in the Middle East and was attracting the attention and support of many young Muslim men and women from all over the world. It is a story which was all too common during those years and underpins the criminal conduct of other offenders in Australia in cases to which my attention has been drawn by the parties and to which I shall refer later in these reasons.
32 I also mention that part of the history, in particular the history of your time in Pakistan, involved traumatic events which are detailed in the reports of Ms Matthews and in Ms Lowe's report, to which I do not intend to refer for your own privacy reasons. They are nevertheless relevant to the assessments made by both Ms Matthews and Ms Lowe. It was against this general background that the offence, the subject of Charge 1 was committed.
33 Your counsel described your offending as follows in his written submissions:
“In relation to charge 1, Ms Sa’adat Khan’s criminality can be stated simply. At a time when she was particularly isolated and withdrawn from her local community, she found comfort and a sense of purpose in online relationships which encouraged her support of extremist Jihadi ideology. The tenor of her online communications demonstrates a level of immaturity, eagerness to impress and keenness to endear herself to […]
[the male to whom I've referred in the United States, who was the subject of the communications relevant to Charge 1].
“Her comments to Pamela Matthews demonstrate her misguided feelings of belonging. ‘The people she met online were ‘nice to me. They gave me advice. They said they loved me.’ “
That is a quote of what you told Ms Matthews.
“Ms Matthews describes Ms Sa-Adad Khan's actions as a function of projected grievance.
“The charge period in relation to count 1 spans just five days. The extent of services provided was limited to the provision of advice likely to be common knowledge and facilitation of contact with third parties, in circumstances where […] [the person you were talking to] had already purchased a plane ticket to Morocco (prior to engagement with Ms Khan, he was already radicalised and had attempted to travel to both Iraq and Turkey and so the advice was trite in many respects to him). This can be contrasted with other examples of conduct encapsulated by the offence, including recruiting persons, supplying weapons, supplying significant financial support, technical support or expert knowledge.
“In light of the features relevant to the offending, the Court should find this particular example falls at the lowest end of the scale in relation to objective gravity.”
That is dealing with Charge 1.
34 I do not go so far as Mr Nathwani's suggestion in accepting that this criminality falls at the lowest end of the scale, but I do accept that it falls towards the low end of the scale.
35 Mr Nathwani goes on in his submission to say:
“In relation to Charge 2, the offence was failing to provide the password to her device. In the event, the AFP were able to access the material and so, the prosecution against her did not fail by any failure to access material. Further, unlike in other cases, the material was accessed fairly early on in the investigation (and not years later after specialist software etc was required).”
36 I generally accept that proposition, although I do regard the offence of failing to provide a password in those circumstances as serious, and requiring separate punishment. It is in the public interest that failures of that kind be punished by terms of imprisonment, and despite the presence of s17A of the Crimes Act (Cth), I regard it as an offence which requires a term of imprisonment as well as Charge 1.
37
Mr Nathwani went on to submit that a good deal of water has gone under the bridge, and it is now several years since you committed the offences. He submits that the time in custody has been particularly onerous upon you. You have endured lengthy periods of solitary confinement and times in the protection unit, which have impeded your access to educational programs. Your contact with your family has been curtailed significantly. He urges me that Verdins principles 5 and 6 apply in that your term of imprisonment is likely to weigh more heavily upon you because of your Post traumatic stress disorder, and your depressive symptoms. And he urges me that there is a serious risk that imprisonment will have a significant adverse effect upon your mental health.
38 I am inclined to accept both of those submissions, although in the overall scheme of things, I do not regard them as requiring a significant reduction in sentence.
39 Mr Nathwani went on to urge me to take into your account your youth. You are now 24 years of age. The offending in Charge 1 occurred when you were 18 years of age. You were 20 years of age when you committed the offence the subject of Charge 2. He urges me to apply the principles that ordinarily apply to youthful offenders. I regard those principles as relevant, although Mr Ginsbourg rightly points out that in cases of terrorism offences where there is a high degree of need for general deterrence as well as just punishment and protection of the public, such factors should carry significantly less weight. I accept that as a general proposition and I think it applies in your case.
40 Your counsel points out that you are a person of unblemished character. You have no prior convictions and you deserve very substantial credit for your plea of guilty. He urges me to accept that you are remorseful and contrite. In contrast with other persons in your position who have given evidence on oath in support of that contention, you did not do so. Therefore I am not able to find that you are genuinely remorseful. However, I accept that a plea of guilty is consistent with an acceptance of criminal responsibility and I accept that you have expressed contrition to Ms Matthews and given indications of contrition to Ms Lowe. That is encouraging, but I am not prepared to make a finding of remorse.
41
Mr Nathwani rightly brings to my attention current sentencing practices and the need to have regard to the sentencing of other persons who have committed offences of a similar kind. I note his particular reliance on the case of
TheQueen v EB [2018] NSWSC 201, and there were a number of other cases he relied upon.
42 Mr Ginsbourg for the Crown also drew my attention to a number of cases, including EB. I have read the judgement of Justice Davies in The Queen v EB very carefully. There are many similarities between the conduct of the offender in that case and your offending.
43 There are some differences also. First of all, EB was charged with an offence which carries a maximum term of imprisonment of life. He also asked Justice Davies to take into account another offence, which also carried a term of imprisonment of life. So there were two separate offences carrying life imprisonment that came before Justice Davies.
44 There are other differences. One is that EB was 17 years of age at the time he committed the offence, the subject of the indictment against him. You were 18 years of age when you committed the equivalent offence. The original indictment against you had an offence carrying life imprisonment from the same section of the legislation as the offence to which EB pleaded guilty before His Honour Justice Davies.
45 Another significant difference is that, in contrast to the course that you took, EB gave evidence on oath before Justice Davies. Justice Davies noted that he was cross-examined at some considerable length, and he had a very adequate opportunity to make assessments of him. It seems that he impressed Justice Davies as being a person who had put behind him his radical views and was well on the road to rehabilitation.
46 Nevertheless, I accept that the offending conduct in his case was more serious than your offending conduct. It was conducted over a longer period of time and quite apart from there being two separate offences that Justice Davies had to take into account, the actual offending had many features which make EB’s offending conduct more serious.
47 Justice Davies was sentencing EB at a time when he was 19 years of age. I am sentencing you at the age of 24. He was sentencing him as a young offender. The total effective sentence that he imposed was imprisonment for two years and three months and he fixed a non-parole period of one year and eight months and one week.
48 I note that the sentencing of EB was all before the pandemic, and although EB was entitled to claim a reduction in sentence for his plea of guilty, it was not a plea that carried the extra discount that is appropriate for you, given that almost the entire period during which you have been in custody has been within the period of the COVID pandemic. Therefore throughout your period of incarceration on remand, the harshness of your time in custody has been a significant factor. I am required, given the pandemic, to give you particular credit for your pleas of guilty and I intend to do so.
49 I was referred to a number of other cases, including The Queen v Cerantonio & Ors [2019] VSC 284. It is conceded by the prosecution that the offending in that case was significantly more serious by all of the accused. Although the learned sentencing judge in that case found that those other than Cerantonio had generally reasonable, if not good, prospects of rehabilitation, none of those offenders went into the witness box and gave evidence. The sentences for all but Cerantonio were down to as little as three years and six months imprisonment. The offending of all offenders in that case was unquestionably markedly more serious than your offending.
50 It is important to maintain consistency of sentencing as far as possible throughout the Commonwealth and I am conscious of the need to do so in sentencing you. I have given earnest thought to the degree to which the public needs protection from you, not just by reason of your offending conduct, but by the fact that there is no evidence before me that you have in fact renounced your adherence to violent jihad.
51 I have been impressed by the quality of the report from Ms Lowe, and the evidence on oath that she gave before me. She regarded your prospects of being drawn into further terrorism activity as low to moderate.
52 She fairly accepted that another expert given the same material might reasonably come to the conclusion that the risks were moderate as distinct from low to moderate. She accepted that this was not an exact science and that one had to approach the assessment with a degree of caution.
53 What she did point out was the importance of two things, in her view, in particular. One is that following the communications you had had with the person the subject of the letters exhibited at the plea hearing as Exhibits B, C, and D, you engaged willingly in mediation with the victim of your correspondent’s attack. Ms Lowe says in her second report at paragraph 17:
“When asked why she participated, Ms Sa’adat Khan stated that staff wanted to make sure there was no “bad feelings” between the two women given one was the victim of the attack and she had spent some time in segregation as a result of her initial suspected involvement. When asked about what that was like, she reported that is [sic] was a great experience, she stated she was able to sympathise with the victim and they both expressed sorrow and remorse for the other.”
54 Accepting that what you told Ms Lowe was not backed up by evidence on oath from you and accepting that those are self-serving statements, they nevertheless impressed Ms Lowe. It seems to me they do give some support for the contention that you have prospects of rehabilitation that are probably no more than guarded but are by no means hopeless. They will depend, no doubt, upon the degree to which you seek assistance and support when you have served your sentence.
55 Ms Lowe in her supplementary report says this at paragraphs 24 and 25:
“The additional information received serves to support the initial findings of both risk related to a need for belonging and connection and a lack of social skills, and the protective factors related to Ms Sa’adat Khan’s willingness and motivation to engage in interventions and supports to assist her to develop meaningful pro-social relationships and networks.
“The risk remains, that without support, Ms Sa’adat Khan may revert to a violent extremist ideology, however the risk factors can be addressed through targeted interventions which address the following;
i) Psychological support to manage mental health symptoms
ii) Counselling to address previous experiences of trauma
iii) Family therapy to address family relational issues and functioning
iv) Religious support and access to religious leaders and mentors
v) Access to education and vocational training to build opportunities for employment
vi) Access to opportunities and support to develop skills and experience in developing relationships and engaging in social interactions”
She concludes by saying:
“Factors of risk indicators associated with violent extremism are fluid and must be considered in the time and context they are assessed.”
56 I have received a letter from the Victoria Police in connection with an enquiry about your prospects of engaging with the Community Integration Support Program, as was discussed during the plea hearing, to assist you in relation to the religious aspect of Ms Lowe’s recommendations and into deradicalization. The letter is of a formal nature and not terribly helpful, but it seems that there are programs available. One would hope that your experiences and your time in custody has given you the opportunity of reflecting on your behaviour to a point where you are genuinely able and willing to embrace the opportunities for rehabilitation that are offered to you.
57 There is no doubt that the offence the subject of Charge 1 is a very serious offence. It is always a very serious offence when anybody dabbles in terrorist activity. Your offending may have been at the low end of the scale, but it is nevertheless to be denounced. I am bound to impose just punishment upon you that fits the crime and adequately addresses protection of the public. I have endeavoured to address all of those matters in selecting the sentences I have pronounced.
58 I regard general deterrence as a very significant sentencing consideration as well in your case, particularly since there is no evidence before me in which I can conclude genuine remorse or can conclude that you are well on the path to deradicalization. Those matters are still live issues and of significance in the selection of the sentences that I have.
59 Nevertheless, these matters have to be tempered against the fact that you are still a young person, that this does arise in the context where you were socially isolated to a point where you were susceptible at a young age to online communications leading to your radicalisation. Hopefully you have had time to reconsider the benefits and importance to you in the future of those matters, and hopefully you can learn a lesson from the time you have had to reflect upon that period of your life. I hope you can take advantage of opportunities to put this matter behind you.
60 You are only 24 years of age, and you have time to do that. Hopefully at the end of the sentence you will set about that with a renewed vigour. I am told that you plan to go and live at home, and I have no doubt your family will welcome you back. Although it will not be easy to reintegrate after the traumatic events, not just for you but also for your family as well.
61 Are there any other matters that I have failed to deal with?
62 MR NATHWANI: Forfeiture orders I think are sought in relation to two matters, which are consented to, the mobile phone and iPod. And just in relation to the sentence, I was scribbling it down. Your Honour said a total effective sentence of two years, six months, but I did not quite hear the non-parole period.
63 HIS HONOUR: It is one year and 11 months.
64 MR NATHWANI: Thank you.
65 HIS HONOUR: It was necessary to impose a period of three-quarters of the head sentence.
66
MR NATHWANI: Obviously, under the Crimes Act, if there was a sentence under three years, ordinarily Your Honour is obliged to make an RRO, unless
I - - -
67 MR GINSBOURG: You cannot.
68 MR NATHWANI: No, exactly, I am just assuming that under s19AG, that is why the sentence has been imposed and Your Honour's given the reasons.
69 HIS HONOUR: That is right, yes.
70 MR NATHWANI: Thank you. I just wanted to make that clear.
71
HIS HONOUR: I was helpfully reminded by an email from Mr Ginsbourg as to
the - - -
72 MR GINSBOURG: I am sorry it wasn't sooner.
73 HIS HONOUR: I am sorry, Mr Ginsbourg, rather I should say I think it was timely nevertheless and helpful. Thank you.
74
MR GINSBOURG: Regarding the forfeiture order, Your Honour, may we email
Your Honour the details of those orders to be made later.
75 HIS HONOUR: Yes.
76 MR GINSBOURG: I understand they are consented to.
77 HIS HONOUR: Yes, well they're by consent it seems.
78 MR GINSBOURG: There is some red tape at this end that I am told has not been attended to yet, Your Honour.
79 HIS HONOUR: All right.
80 MR GINSBOURG: So, I will not ask Your Honour to make those orders now.
81 HIS HONOUR: No, all right. Well, I can make them in chambers, I assume, rather than have to reconvene the court for that purpose.
82 MR GINSBOURG: Yes, Your Honour.
83 HIS HONOUR: You would anticipate that when I do receive it, subject to providing a copy to Mr Nathwani, of course, and unless he objects then I will sign it.
84 MR NATHWANI: Not at all, thank you.
85 HIS HONOUR: All right. Can you put the prison back on again, unmute? Can you hear me all right, Ms Sa’Adat Khan?
86 MR GINSBOURG: She was muted, wasn't she.
87 HIS HONOUR: Yes, she was. She's still muted.
88 MR GINSBOURG: It doesn't take more than 30 seconds.
89 HIS HONOUR: Sorry, Mr Nathwani.
90 MR NATHWANI: I have no issue with that as well. No offence at all.
91 HIS HONOUR: Can you hear me all right – you can – I am sorry we're still waiting for it to take effect. Were you able to follow all that Ms Sa’Adat Khan?
92 OFFENDER: Yes, I did.
93 HIS HONOUR: You haven't got a lot longer to serve, and you heard all my remarks about my hopes that you may have learnt your lesson and that you have the opportunity now to lead a better life, although you will need some help. Do you understand that?
94 OFFENDER: Yep, I do.
95 HIS HONOUR: Yes, all right. And are you genuinely intending to accept that help?
96 OFFENDER: Of course, yep.
97 HIS HONOUR: All right. Thank you.
98 MR GINSBOURG: Thank you, Your Honour.
99 HIS HONOUR: Yes, close the court please.
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