Director of Public Prosecutions v Thomas
[2006] VSC 120
•31 March 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1458 of 2004
| DIRECTOR OF PUBLIC PROSECUTIONS (Commonwealth) |
| v |
| JOSEPH TERRENCE THOMAS |
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JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2006 | |
DATE OF SENTENCE: | 31 March 2006 | |
CASE MAY BE CITED AS: | DPP v Thomas | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 120 | First Revision 13 April 2006 |
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Criminal Law – sentencing – terrorism offence – Commonwealth Criminal Code s.102.6(1) – intentionally receiving funds from a terrorist organisation – Al Qa’ida – possession of falsified Australian passport – s.9A(1)(e) Passports Act 1938 – considerations applicable.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr N.T. Robinson with Ms. L. Taylor | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr L. Lasry QC with Mr M. Taft | Robert Stary and Associates |
| For the Commonwealth Attorney-General (by leave) | Mr R. Tracey QC with Dr S. Donahue | Australian Government Solicitor |
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HIS HONOUR:
Mr Thomas, you have been found guilty by a jury of intentionally receiving funds from a terrorist organisation knowing that the organisation was a terrorist organisation. That is an offence against s.102.6(1) Commonwealth Criminal Code. It is a particularly serious offence. That seriousness is demonstrated by the nature of the offence itself; the circumstances that s.102.6(1) is contained within Chapter 5 of the Code entitled “The security of the Commonwealth”, in Part 5.3 entitled “Terrorism” and in Division 102, entitled “Terrorist organisations”; and by the fact that the maximum penalty for the offence is 25 years’ imprisonment. You have also been found guilty of having in your possession an Australian passport that had been falsified. That is an offence against s.9A(1)(e) Passports Act 1938 and which has a maximum penalty of two years’ imprisonment. The passport offence was discovered upon your apprehension at Karachi airport, Pakistan, on 4 January 2003. After that arrest, and over time, your involvement with high level operatives of Al Qa’ida was revealed. The funds you received – the sum of US $3500 and an airline ticket to Australia – were provided to you by a high level operative of Al Qa’ida, whom you knew to be so. The falsification of your passport was to your knowledge effected by an Al Qa’ida operative. Both in themselves and in their terrorism context these are serious charges.
You had left Australia on 23 March 2001 and travelled to Pakistan. You crossed the border into Afghanistan. You then voluntarily undertook paramilitary training at the Al Farooq training camp, a terrorist training camp of Al Qa’ida. Included in that training was the learning and use of topography and the manufacture of explosives. You trained there for three months. In July 2001 you went to Kabul. You remained in Afghanistan for a period and then went to Pakistan. You there stayed at a series of safe houses associated with Al Qa’ida. Shortly before your arrest you had the dealings with the Al Qa’ida operatives by which you received the funds, the airline ticket and the falsified passport. You attended at the Karachi airport with the intention of returning to Australia. You were then arrested.
Upon your arrest you were in Pakistani custody until your return to Australia on 6 June 2003. During that period you were extensively interviewed by officers of the Australian Intelligence Security Organisation. Then on 8 March 2003 you were interviewed by officers of the Australian Federal Police. It was that interview which constituted the substance of the evidence led at your trial. You returned to Australia on 6 June 2003. You were arrested on these and related charges on 18 November 2004.
When in Pakistan in early 2003 you first were approached by Australian officials and officers you expressed relief to see them. I consider that the conduct in Pakistan of the Australian officials and officers was at all times proper.
Ultimately your jury trial was heard in this Court. You were presented on four counts: count 1, that between November 2002 and January 2003 at Karachi in Pakistan and elsewhere you intentionally received funds from a terrorist organisation, namely Al Qa’ida or another terrorist organisation associated with Khaled Bin Attash and/or Usama Bin Laden knowing that the organisation was a terrorist organisation; count 2, that between 5 July 2002 and 4 January 2003 at Karachi in Pakistan and elsewhere you intentionally provided resources (yourself) to that terrorist organisation that would help it engage in preparing or planning a terrorist act overseas; count 3, that between 1 November 2002 and 4 January 2003 at Karachi in Pakistan and elsewhere you intentionally provided resources (yourself) to that terrorist organisation that would help it engage in preparing or planning a terrorist act in Australia; and count 4, that on 4 January 2003 at Karachi you had in your possession a falsified Australian passport. The jury found you guilty on counts 1 and 4 and not guilty on counts 2 and 3. This sentence proceeds upon the necessary premise that the verdicts of the jury loyally will be given effect to.
Reference to the jury trial and to the verdicts brings me to the next matter. At the conclusion of your counsel’s final address to the jury he asserted that the trial was a “trophy trial”.[1] That was an unfortunate expression. This was no trophy trial. This Court will be no part of trophy trials. On each count preferred against you – those on which you were acquitted as well as those on which you were convicted – there was evidence capable of establishing your guilt. Had there not been evidence on each of the four counts capable of establishing your guilt, you would not have been committed for trial by the very experienced magistrate who committed you, and I would not have permitted the count to be considered by the jury. During the trial your counsel at no time submitted that on any of the counts there was no evidence capable of establishing your guilt.
[1]T.1626.
There is a deeper inappropriateness of your counsel’s assertion. You were tried in your own country by your own community. You were not spirited offshore beyond the reach of your own country’s laws. You were provided the full protection of the law and of its procedures. The prosecution had the burden of proving the charges beyond reasonable doubt. You had the right to remain silent without any comment being made as to your silence, which right you exercised. You were tried by a jury. These are precious rights which I strongly support and of which you were the beneficiary. To diminish such protections and values by a hollow forensic flourish was not only unfortunate but demonstrably wrong.
There is another matter to which reference needs be made. At the commencement of the proceedings in this Court in September 2005 there were some demonstrators outside the Court with placards stating “No confession by torture”. I agree with the demonstrators. Since the Long Parliament in England in 1640, evidence derived from torture has not been received by English courts. It has never been received by Australian courts, nor should it ever be. Australia is a signatory to the Convention Against Torture or other cruel, inhuman or degrading treatment or punishment.[2] The recital to that Convention states that “recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” and that “those rights derive from the inherent dignity of the human person”. I wholly agree. By Article 1 of the Convention is recognised that torture can be mental as well as physical. There is no place in the law for torture. Its character and pernicious consequences were aptly expressed by Sir William Holdsworth[3]:
“Once torture has become acclimatised in a legal system it spreads like an infectious disease. It saves the labour of investigation. It hardens and brutalises those who have become accustomed to use it.”
The Courts of this country never will receive evidence derived from torture. Further, torture, be it physical or mental, is to be condemned wherever it appears, in whatever guise and for whatever cause or end.
[2]1984. Entry into force in Australia 7 September 1989.
[3]Holdsworth, W.S., A History of English Law (3rd ed., 1945) V. 5, p.194. See generally A & Ors v Secretary of State for the Home Department (No. 2) (2005) 3 W.L.R. 1249.
Had your interview of 8 March 2003 derived from torture, physical or mental, I would unhesitatingly have rejected it. It did not.
There is one final observation I would make before turning to the sentence to be imposed upon you. Australia has a deep duty to protect its citizens from terrorism and so far as in its power to protect humanity from terrorism. That is why the Commonwealth Parliament enacted the laws against terrorism which were the foundation of the presentment against you, and why the States of the Commonwealth likewise have enacted laws. The most fundamental right is the right to life. The law must protect that right. Australians are entitled to security. However, security is a necessary but not a sufficient condition for a just society. Security is not enough. There must also be justice – for all citizens, including the weak, the marginalised, the unpopular and the alienated. I agree with the British Prime Minister, The Rt. Hon. Tony Blair in his statement this week to the Commonwealth Parliament:
“ … there is no prosperity without security and no security without justice.”[4]
Long experience in the law affirms that there is no real solution to effects unless there is a solution to causes.
[4]Hansard, 27 March 2006, p.2 (Proof: authorised not yet to hand).
I turn to the particular facts and considerations immediately applicable to the sentence to be imposed upon you, Mr Thomas. I proceed upon the well-known principles in sentencing that the sentence must be consistent with the jury’s verdicts and that the verdicts must be given full and plenary effect and must not be trammelled or undermined in any way; and that findings adverse to an accused may only be made if proved beyond reasonable doubt.
The funds of US $3500 cash and the airline ticket to Australia were provided to you by Khaled Bin Attash in Pakistan in late 2002 in clandestine circumstances. Unsurprisingly, Khaled Bin Attash was not called before the jury to give his account of what transpired between you. Your version is contained in answers 199-247, 411-420, 446-447 and 467-489 in the A.F.P. interview. You describe the receipt of the funds, at a safe house in Pakistan frequented by Al Qa’ida operatives, as follows. That Khaled Bin Attash (Q.447)
“ … sat down with the people, then he called me into a bedroom and said that he was able to give me um some money, three thousand five hundred dollars and that he was able to give me a ticket back to Australia, and that oh he said Usama Bin Laden had suggested – or Usama Bin Laden needs someone to work and he’d made the suggestion that I would work for them.”
And the following (Q.476-478):
“QDid, when Khaled Bin Attash asked you to do those things, what was your response to him. I’m not saying what was your internal response, what was your response to him?
A There was no response from me.
Q Okay. What would his impression be from your reaction?
A He may have doubted.
Q Okay but he still gave you the ticket after that?
AHe’d given it – they’d given everyone tickets mate. He’d given everyone to leave tickets and money. Everyone was given tickets and money. I was no, I was – nothing special about me.”
The person with whom you entered the room at the safe house, Khaled Bin Attash, for your clandestine meeting was a senior and experienced Al Qa’ida operative. He had been the mastermind of the bombing of the USS Cole, a film of which bombing had repeatedly been shown at the Al Farooq training camp. It is clear beyond doubt that Khaled Bin Attash provided you with the money and airline ticket for terrorist purposes. Al Qa’ida was not a charitable organisation. It was not a travel agency. On the jury’s verdict you did not receive the funds and ticket for terrorist purposes, a finding I give full and plenary effect to. But you knew full well what Bin Attash’s purpose was. You had had extensive dealing with high level Al Qa’ida operatives. You let Bin Attash think what he thought. You did not share your thought processes with Bin Attash or with Al Qa’ida, the donor of the funds and ticket. You did not turn to Australian government representatives. You accepted the money. You accepted the airline ticket. You arranged for Al Qa’ida to falsify your passport. You were on your way to Australia with the funds, with your falsified passport, on an Al Qa’ida–provided airline ticket when you were arrested. Your conduct shows you were well capable of being manipulative. Your extensive dealings in Pakistan with the officers of the Australian Security Intelligence Organisation and your dealings with the officers of the Australian Federal Police demonstrate likewise. You are not foolish and naïve; nor were you. You are an intelligent adult. You were at the relevant times.
Your counsel on the plea most ably reviewed the matters in mitigation of penalty. They are that you are 33 years of age, a married man with three young children and who has no prior convictions; that your sentence will be served in conditions of very significant personal limitation; that there has been substantial delay from event to sentence, such delay not being of your making and which has involved the stress of uncertainty; that you suffered incarceration in Pakistan; that you suffer from depression or post-traumatic stress disorder; that you have cooperated substantially with the authorities both in Pakistan and in Australia, that in Pakistan that cooperation placed you at risk, and that that cooperation in both Pakistan and Australia has been valuable; that you have a supportive and good family; and that you have excellent prospects for rehabilitation. I accept all those matters and I have given careful consideration to each of them and to their combined effect. As I said during the trial, I have been most impressed by both your parents, who have attended court every day. They are decent, good citizens. I am conscious of the burden imprisonment brings not only to yourself but to your wife, children and parents.
I turn to the question of general deterrence. In the matter of terrorism offences the principle of general deterrence is of pre-eminent importance. That is because such offences need to be prevented before they occur; not simply punished after the event. Your depression or post-traumatic stress disorder is not such as to bring you within the principle of R v. Anderson[5] nor did your counsel suggest so. The principles of sentencing set forth in s.16A Crimes Act 1914 (Commonwealth) are inclusive and do not articulate all established sentencing considerations, including general deterrence. General deterrence is of pre-eminent importance in this case. I do not consider specific deterrence is of significance in this case for the reasons submitted by your counsel. I consider the principle of reformation always is important, the achievement of which is significantly in your favour Mr Thomas.
[5](1981) VR 155. See also R v. Tsiaras (1996) 1 VR 398.
Counsel for the prosecution on the plea stated reasons why proceedings such as these take time to bring[6]. Such proceedings involve dealing with persons and entities out of the jurisdiction and in particular with classified material here and overseas. I understand that. However it would be better for law enforcement if proceedings were brought more promptly than has here been the case, if proceedings are to be brought. The gathering of intelligence is another matter.
[6]T.1894.
For the reasons I have stated, it is necessary to impose sentences of imprisonment. By reason of your personal circumstances I shall set a much longer period of availability for parole than ordinarily I would.
Mr Thomas, you have served 126 days in pre-sentence detention. Pursuant to s.16E Crimes Act 1914 and s.18(4) Sentencing Act 1991 (Victoria) I declare that period of 126 days as already served under the sentences I impose and I so certify.
On Count 1, intentionally receiving funds from a terrorist organisation, I sentence you to five years’ imprisonment.
On Count 4, having in your possession a falsified Australian passport, I sentence you to one year’s imprisonment.
I direct that the sentence of one year’s imprisonment on Count 4 be served concurrently with the sentence on Count 1, making a total effective sentence of five years’ imprisonment. I direct concurrency because, although the passport offence is a significant offence in its own right, in all the circumstances I consider it is just to direct concurrency.
I direct that you serve a minimum term of two years’ imprisonment before you become eligible for parole.
Mr Thomas may be removed.
Sine die.
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