Ghazzawy v R (Cth)

[2021] NSWCCA 70

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ghazzawy v R (Cth) [2021] NSWCCA 70

Hearing dates:

26 October 2020

Decision date:

16 April 2021

Before:

Hoeben CJ at CL at [1];
Harrison J at [56];
Ierace J at [57]

Decision:

(1)   Grant leave to the applicant to appeal against his sentence out of time.

(2)   Grant leave to appeal against sentence.

(3)   Allow the appeal.

(4)   Quash the sentence imposed by his Honour Justice Bellew on 8 May 2017.

(5)   In lieu thereof, the applicant is sentenced to imprisonment for 8 years, commencing 10 December 2015 and expiring 9 December 2023, with a non-parole period of 6 years expiring on 9 December 2021.

Catchwords:

CRIMINAL LAW – sentence appeal – offence of intentionally making a document connected with the preparation for a terrorist act knowing of that connection contrary to s 101.5(1) of the Criminal Code 1995 (Cth) – failure to have regard to the utilitarian value of the plea of guilty in accordance with s 16A(2)(g) of the Crimes Act 1914 (Cth) – error disclosed and need to resentence – protection of the community, punishment, denunciation of the offending and general deterrence relevant to objective seriousness – objective gravity higher than mid-range – lack of insight into offending – appeal against sentence allowed – term of imprisonment reduced on resentence.

Legislation Cited:

Crimes Act 1914 (Cth) – s16A

Criminal Appeal Act 1912 (NSW) – s5

Criminal Code (Cth) – ss 101.5, 101.6

Cases Cited:

Bae v R [2020] NSWCCA 35

Benbrika v R (2010) 29 VR 593; [2010] VSCA 281

Elomar & Ors v R (2014) 300 FLR 323; [2014] NSWCCA 303

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Mulato v Regina [2006] NSWCCA 282

R v Benbrika (2009) 222 FLR 433; [2009] VSC 21

R v Elomar&Ors (2010) 264 ALR 759; [2010] NSWSC 10

R v Ghazzawy [2017] NSWSC 474

R v Kahar & Ors [2016] 1 WLR 3156; [2016] EWCA Crim 568

R v Khazaal [2009] NSWSC 1015

R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353

R v Robert Borkowski [2009] NSWCCA 102

Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category:

Principal judgment

Parties:

Ibrahim Ghazzawy – Applicant
Regina (Cth) – Respondent

Representation:

Counsel:
T Anderson/K Fitzgerald – Applicant
B Power – Respondent

Solicitors:
Legal Aid NSW – Applicant
Commonwealth Director of Public Prosecutions - Respondent

File Number(s):

2015/363057

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2017] NSWSC 474

Date of Decision:

8 May 2017

Before:

Bellew J

File Number(s):

2015/363057

JUDGMENT

1. HOEBEN CJ at CL:

Offence and sentence

On 27 October 2016, Ibrahim Ghazzawy (the applicant) pleaded guilty to an offence contrary to s 101.5(1) of the Criminal Code 1995 (Cth) (the Code) in the following terms:

Between about 17 December 2014 and 18 December 2014 at Sydney, in the State of New South Wales, did intentionally make a document and the document was connected with the preparation for a terrorist act, knowing of that connection.

2. An offence contrary to s 101.5(1) of the Code carries a maximum penalty of 15 years imprisonment. On 8 May 2017, Bellew J sentenced the applicant to imprisonment for 8 years and 6 months, commencing 15 December 2015 and expiring 14 June 2024. His Honour set a non-parole period of 6 years and 4 months, commencing 15 December 2015 and expiring 14 April 2022. In determining the sentence, his Honour applied a discount of 15 per cent for the applicant’s plea of guilty.

3. The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the sentence imposed upon him by Bellew J in the Supreme Court on 8 May 2017 on the following grounds:

Ground 1 – That in determining the appropriate discount to reflect the value of the applicant’s plea of guilty, his Honour did not have regard to the utilitarian value of the plea in accordance with s 16A(2)(g) of the Crimes Act 1914; and

Ground 2 – That his Honour erred in backdating the commencement of the applicant’s sentence to 15 December 2015 when the applicant had in fact been in custody solely for this offence from 10 December 2015.

4. The applicant’s application for leave to appeal is out of time and the applicant relies on an affidavit of Mr Stephen Eccleshall, a solicitor employed by the NSW Legal Aid Commission, to explain the background to the appeal and the delay.

5. There was no objection raised by the Crown to leave being granted to the applicant to appeal against sentence out of time and in due course the Court will make that order.

6. A statement of facts was tendered, without objection, in the sentence proceedings and its contents were not disputed. It asserted that the applicant had adhered to a religious ideology of violent jihad, specifically, Wahhabi-Salafism that inspires ISIS (the Islamic State of Iraq and Syria), Al-Qaeda and like-minded groups and their supporters.

7. The facts before the sentencing judge were that on 8 May 2014 the Joint Counter Terrorism Group Team (JCTT) commenced an investigation (Operation Appleby) to inquire into allegations that a group was conspiring to commit a terrorist act. The statement of facts identified a number of other persons, collectively referred to as the “Khalid group” in reference to its lead member, Sulayman Khalid. Sulayman Khalid, Jibryl Almaouie and the young person, IM, pleaded guilty to a charge of conspiring to do acts in preparation for a terrorist offence pursuant to s 101.6 (1) of the Criminal Code. The offence provided for a maximum sentence of life imprisonment.

8. Farhad Said, Mohamed Almaouie and the applicant each pleaded guilty to a charge of knowingly making a document connected with the preparation for a terrorist act.

9. Khalid’s mobile phone had been monitored by authorities between 7 November 2014 and 24 December 2014. The phone records demonstrated that Khalid was in regular contact with other members of the group. With the exception of Farhad Said, all of the telecommunications services used by members of the Khalid group (including the applicant) were subscribed in either false names or in the names of other family members (as in the applicant’s case). The intercepted material demonstrated coded and guarded conversations that related to planning a domestic terrorist attack and attempts to avoid detection by police.

10. Khalid organized a number of meetings with other members of the group at his home at Regents Park. During December 2014, and immediately leading up to the morning of 18 December 2014, members of the Khalid group met regularly there. During these meetings, members wrote out various documents outlining their plans for a terrorist attack.

11. On 18 December 2014, the JCTT executed a search warrant at Khalid's home and the homes of the other offenders. During the search of Khalid's home, a total of six handwritten documents that outlined plans to commit an act of terrorism were located. Two of those documents (located in Khalid’s bedroom inside a backpack and black suitcase) contained writing by the applicant. Khalid returned to the house during the search. He stated to police that he owned the suitcase, that he used the backpack, and while he did not write the notes, he had read them. He stated that just because he had read them did not mean that he was going to carry out the acts described.

12. During a search of the co-offender Almaouie’s residence, three firearms were seized as well as ammunition, a black flag with Arabic writing, a black shirt with Islamic text, head-scarfs, a book titled “SAS Survival Guide” and notes referring to weapons.

13. During a search of the residence of the co-offender IM, police seized mobile phones containing pictures of IM taken on 6 December 2014 with his uncle’s firearms, two bullets, various CDs and documents containing extremist jihadi propaganda in the form of lectures and nasheeds (chanting in Arabic often with religious and violent messages).

14. Forensic fingerprint and handwriting examination revealed the fingerprints of the applicant on one of the documents seized from Khalid’s property and his handwriting on three of the documents. In essence, the documents outlined different methods for the commission of one or more acts of terrorism. These included attacks against the AFP Building in Parramatta or the City, which were described as “a good target”, “attacking the dogs, Gorilla (sic) Warfare [style]” from the Blue Mountains as a means to achieve martyrdom and an attack on Lithgow Gaol, again, to achieve martyrdom.

15. On 10 December 2015, the applicant, Almaouie, Khalid and IM were arrested and charged. They declined to participate in an interview. Said was arrested and charged on 26 May 2016.

16. The statement of facts included copies of the documents made by the applicant. The three offending documents in the applicant’s case contained the following (with the applicant’s contribution underlined and in bold):

17. 5. Document 3, Item I372 (the “AFP Building” Document), with other parts written by Farhad SAID, a conspirator named in related proceedings:

If we are gna do the

Istishadi the AFP building is

a good target, its in parra or

the city.

Like the brother said, they will

catch up with us anyway so same

thing.

Helicopters and all that so

we are going to fight till

shahada anyway so we

might as well do something major

Reproduction of Item I372, the “AFP Building” Document

6. Document 4, Item I373 (the “Gorilla Warfare” Document), with other parts written by Mohammed ALMAOUIE, also a conspirator named in related proceedings:

The plan is gorilla (sic) warfare

(illegible) we are going to go

to the woods and attack

the dogs there, Blue Mountains

and the surrounding forests.

Who are we going to find there?

* Hijra out of NSW – 7

* Abo land

* Dawah to Abos = Army

* Army = Buildings, Fortresses, Plans etc

* Start Slowly (under cover)

* Own world

* Start small = HUGE

“Hira” is the Arabic word for migration.

Da’wah means the proselytizing or preaching of Islam.

Reproduction of Item I373, the “Gorilla Warfare” Document

7. Document 5, Item I375 (the “Lithgow Jail” Document) contains the following writing, the underlined portion of which was written by the prisoner. Other sections of the handwriting have been identified as that of Farad SAID.

Near by theres lithgow jail, insha Allah if we make progress we will attack it.

So All of us gorila warfare?

Yes, but I would prefer the birthday cake orries more but if not then I’ll go with what the rest of yous think

Im gna speak to the group of 5 and tell them to immobilize as soon as we do our attack or even before. So it will confuse the enemy, and insha Allah more brothers will arise and do something as soon as it sparks.

Why are they going to immobilize

Page 2

Why don’t we target like a

big organisation eg: headquarters

of police force, ASIO etc but

something massive that would

get them shocked and stuff up

there organisation. If we are want

to go all out them istishhad

goes in then the rest go in

to finish things off

Upside down on Page 2

On Sunday Abu bakr will tell him

the Amir the 2 plans most

preferably the Gorrilla warfare first

then the istishhadi plan. Abu Azzam will lay

(illegible) conditions. (illegible)

As soon as we take out a

dog, they will attack.

Reproduction of Item I375, the “Lithgow Jail” Document

18. In order to understand the documents, the following definitions are of assistance:

“Istishadi” is the Arabic word for “martyrdom”, “death of a martyr”, or “heroic death”.

Shahada is the Islamic creed. It is a declaration of belief in the oneness of God and the acceptance of Muhammad as God’s prophet. In English, in its shortest form it reads “There is no god but God. Muhammad is the messenger of God.” However, in the context of the note, the writer may have mistaken it for shahid which is an Arabic word meaning “witness” and is also used to denote a martyr. It is used to refer to Muslims who have died fulfilling a religious commandment, especially those who die in jihad. The act of martyrdom is istishad.

“Hijira” is the Arabic word for migration.

“Da’wah” means the proselytizing or preaching of Islam.

19. Several issues were argued during the sentence hearing. The first was the objective seriousness of the offence. The second was the extent to which this Court could find that the applicant had renounced his previously held extremist beliefs and thirdly, the closely connected issue of his prospects of rehabilitation.

20. The Crown submitted that the key considerations on sentence for a person charged with a terrorism offence were: protection of the community; the punishment of the offender; the denunciation of the offence and general deterrence. Consequently, issues of rehabilitation played a minor role and, generally speaking, the subjective circumstances of the offender should be given less weight than would otherwise be the case.

21. With respect to factors to be taken into account when assessing the objective seriousness of the offence, the Crown set out what were described as eight key considerations:

1. the volume, detail and accuracy of the information contained in the documents which were made by the applicant;

2. the nature and extent of the harm which was capable of being caused by the acts described within those documents, including the nature of the terrorist attack which was contemplated;

3. the nature and the extent of the publication of the documents;

4. the state of mind of the offender;

5. the degree of planning, research, complexity and sophistication involved, together with the extent of the offender's commitment to carry out act(s) of terrorism;

6. the period of time involved in the offending, including the duration of the involvement of the offender;

7. the depth and extent of the radicalisation of the offender; and

8. the extent to which the offender had been responsible, by whatever means, for indoctrinating, or attempting to indoctrinate others, and the vulnerability or otherwise of the target(s) of such indoctrination (whether actual or attempted).

22. In regard to the first issue, the applicant’s submissions were that the objective seriousness of the offending should take into account that the three documents which underpinned the charge only contained 143 words “couched in the language of possibility”. To the extent that the statement of facts made reference to the activities and statements of the other persons with whom the applicant had originally been charged, and with whom he associated at or about the time of the offending, the applicant emphasised the need to ensure that the objective seriousness of the single offence to which he had pleaded guilty was determined by reference to his actions, and not by reference to the actions of others, or the actions of a particular group as a whole.

23. The applicant submitted that the offending behaviour should not be treated as a feasible written plan for a terrorist act, the documents did not demonstrate a high range of culpability and while there was a connection with a prospective terrorist act, there was little connection with the actual preparation for one. It was submitted that the applicant’s “overall culpability was below mid-range.”

24. With respect to the second issue, the Crown submitted that where an offender had not established that he or she had resiled from a previously held religious and/or ideological motivation, the element of community protection will assume even greater importance. This was a matter which was reflected in the second area of dispute. As the applicant did not give evidence at his sentence hearing, the resolution of this issue turned on the extent to which the Court could rely on the statements contained in the report of Ms Anna Robilliard, a psychologist retained on behalf of the applicant.

25. Relying on R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353, the Crown submitted that in the absence of sworn evidence from the applicant, the Court would not be satisfied that he had renounced his commitment to violent jihad and terrorism.

26. The applicant submitted that at the time of the offence, he was “immature” and “stupid” but had wanted to be part of the Khalid group to show others in the group that he was strong and not weak. In making these submissions, the applicant relied on the statements attributed to him in the report of Ms Robilliard.

27. The applicant submitted that in his case there was a low likelihood of recidivism. This submission was based on the fact that between the date of the offence on 17-18 December 2014 and his arrest on 10 December 2015, there was no evidence of the applicant being involved in any extremist activity and he did not possess any extremist material. The applicant also relied on his marriage and that during that period he “showed no signs of being radical or violent”.

The remarks on sentence

28. Relevant to this appeal, his Honour said at [58]-[61] in his sentence judgment:

“58   The offender was arrested and charged on 10 December 2015. The parties agree that the brief of evidence was substantially served by 20 January 2016 and was completely served by 7 September 2016. The indictment alleging the offence to which the offender ultimately pleaded guilty was not presented until 14 November 2016 and a plea of guilty was entered by the offender on that day. However, the Crown acknowledged that the negotiations leading to the plea of guilty had commenced at a time when the matter was still in the Local Court. The Crown expressly conceded that the offender’s plea was entered at “an early opportunity”, albeit not at the earliest opportunity.

59   The Crown’s submissions set out the principles which govern the treatment of a plea of guilty when sentencing an offender for a federal offence. Those principles may be summarised as follows:

(i)   the decision of the Court of Criminal Appeal in R v Thomson; R v Houlton (2009) 49 NSWLR 383; [2009] NSWCCA 309 does not apply to sentencing for federal offences: Wong v R (2001) 207 CLR 584; [2001] HCA 64;

(ii)   it is not permissible to apply a discount to a sentence for a federal offender on the objective basis that the plea has saved the community the expense of a contested hearing: Cameron v R (2002) 209 CLR 339; [2001] HCA 6 at [14];

(iii)   as a consequence, the range of utilitarian discount identified in Thomson, namely 10% to 25%, has no application to the sentencing of a federal offender: Cameron at 343; [11]-[14]; Tyler v R [2007] NSWCCA 247; (2007) 173 A Crim R 458 at 476; [114];

(iv)   a federal offender can obtain a discount in recognition of a plea of guilty if the court concludes that such a plea demonstrates the subjective mitigating factors of genuine remorse, and/or acceptance of responsibility and/or a willingness to facilitate the course of justice: Cameron at 343; [14];

(v)   a guilty plea does not entitle a federal offender to a discount on sentence unless one of the three subjective findings referred to in (iv) above is made, or agreed to by the prosecution, so as to warrant some reduction in sentence;

(vi)   a significant factor relevant to the extent of any discount or reduction in sentence is the timing of the plea, and whether it was entered at the first reasonable opportunity: Cameron at 346; [22];

(vii)   there is no scope for an automatic discount of 10% for a late plea of guilty. Subjective findings must justify any discount given, especially for a late plea, and in some cases it may be appropriate that there be no discount at all because there is only an objective utilitarian benefit;

(viii)   the court may specifically quantify the discount which is applied although providing it is taken into account, there is no obligation on the court to do so: Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at 370; [24]; Tyler at [112];

(ix)   the strength of the Crown case may be taken into account in assessing the subjective value of a guilty plea, and the court may consider whether the offender’s plea was motivated by a willingness to facilitate the course of justice, or was simply a recognition of the inevitable. It follows that a guilty plea entered in the face of a strong Crown case should not be afforded as much weight as a plea entered in circumstances where the prosecution case was weak: Tyler at [114]; Cappis v R [2015] NSWCCA 138 at [57].

60   In the present case, the Crown had available to it expert forensic evidence which established that the offender wrote on the three documents in question, and that these documents were handed to other persons, some of whom added to the handwriting. Had the matter proceeded to trial, the Crown would have asked the jury to draw an inference as to the offender’s state of mind from (inter alia) the content of what he had written. In these circumstances, it is difficult to accept the submission made on behalf of the offender that the Crown case was not strong. I must also take into account that although the plea was entered at an early stage, it was not entered at the earliest opportunity.

61   That said, and as I have found, the plea is some evidence of contrition on the part of the offender. The Crown did not, as I understood it, argue against the proposition that the plea was also some evidence of an acceptance of responsibility on the offender’s part, nor did the Crown submit that the offender was not entitled to any discount at all. The amount of the discount is a discretionary matter, taking into account all of the factors to which I have referred. Whilst it is not necessary for me to do so, I record the fact that I regard the appropriate discount to be 15%.”

29. With respect to the question of objective seriousness, his Honour at [46] accepted the Crown’s submission that in sentencing for offending of this kind, the predominant considerations include the protection of the community, punishment, the denunciation of the offence and general deterrence. His Honour rejected the applicant’s submission that the offence was “below mid-range,” stating at [56] that the offence was of “considerable objective gravity, falling at a level substantially higher than that which was submitted”.

30. With respect to the question of the weight to be given to the applicant’s unsworn and untested statements to Ms Robilliard, his Honour at [35]-[39] referred to the key authorities on the question of the reliance a court may place on the untested statement of an offender contained in a third party’s report: R v Elomar & Ors (2010) 264 ALR 759 at [162]; [2010] NSWSC 10; Elomar & Ors v R (2014) 300 FLR 323 at [815]-[818]; [2014] NSWCCA 303; R v Benbrika (2009) 222 FLR 433 at [148]-[151]; [2009] VSC 21 and Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 at [586]-[587].

31. His Honour’s conclusions were as stated at [42] to [43]:

“42 The absence of sworn evidence from the offender does not render the report of Ms Robilliard inadmissible or irrelevant. The terms of s. 16A(2) of the Act require me to take into account matters that are ‘relevant’ and ‘known to the Court’. Ms Robilliard’s report meets those criteria. Moreover, Qutami and the other decisions to which I have referred are not authority for the proposition that evidence of hearsay statements can never be accepted. However the weight to be given to Ms Robilliard’s report generally, and the statements made by the offender which are recounted within it, is another matter entirely. This is particularly so in circumstances where the issues to which that evidence goes are very much in dispute between the parties.

43   Much of the concluding paragraphs of Ms Robilliard’s report (paras. 61 and following) amounted to little more than a recitation of the history provided to her by the offender. The definitive opinions expressed were limited and were, in any event, based at least partly upon the statements made to her. Moreover, some of the opinions Ms Robilliard did express were couched in terms which were less than certain. For example, Ms Robilliard said that she thought it “possible” that at the time of the offending the offender “could” have produced a particular profile (at para. 76). In terms of his renouncement of previously held extremist views, she stated (again at para. 76) that the events since his arrest ‘could’ have prompted him to review his position. The somewhat indecisive terms in which Ms Robilliard expressed such opinions may reflect the fact that she herself was unable to unreservedly accept what the offender had told her. In any event, it remains the case that the statements made to her by the offender are untested, and her opinions are limited and, to the extent that she expressed them, at least partly equivocal. In these circumstances, only limited weight can be given to the contents of Ms Robilliard’s report.”

32. With respect to objective seriousness his Honour at [44] referred to R v Khazaal [2009] NSWSC 1015 and at [45] to R v Kahar & Ors [2016] 1 WLR 3156; [2016] EWCA Crim 568 as supporting his conclusion at [46] that the protection of the community, punishment of the offender, denunciation of the offence and general deterrence were the predominant considerations. His Honour then stated at [47]-[48]:

“47   In the present case there was no actual injury inflicted upon any person or any property as a consequence of the offending. However, it is necessary to bear firmly in mind that the provision under which the offender has been charged is directed specifically to conduct connected to preparatory acts of terrorism. The seriousness with which Parliament regards such an offence is reflected in the maximum penalty, by which the Parliament has indicated that the threat of terrorist activity requires the imposition of condign punishment: Lodhi at [79] per Spigelman CJ.

48   It follows that the fact that an act (in this case the making of documents by the offender) was committed at an early stage does not necessarily mitigate the seriousness of the offending. Even though the offender’s conduct in the present case did not give rise to any imminent, let alone actual, threat of injury or damage to persons or property, a substantial sentence is nevertheless required: Lodhi at [83] per Spigelman CJ. I bear in mind, of course, that the offender does not appear before me for sentence for actually committing the terrorist act(s) to which reference is made in the documents that he, in part, created. However, such act(s) necessarily inform the nature and gravity of his offending. Moreover, assessing the objective seriousness of the offending in the present case by reference to the number of words written by the offender reflects, in my view, a distorted approach. The emphasis must necessarily be upon the content of what was written, and the sentiments expressed, rather than upon the number of words used to do so.”

33. Later in his sentence judgment, his Honour said at [53] - [55]:

“53   Moreover, I do not accept that the offending was ‘amateurish’. On the contrary, there was a level of sophistication in what the offender wrote, reflected in his specific identification of two proposed targets, his reference to the specific areas in which those targets were located, and his reference to the degree to which those areas might impact upon any proposal to carry out a violent attack. There is no evidence that it was the offender who was responsible for actually identifying the targets. However, the specificity with which he described them is a clear indicator of his knowledge of the connection between what he wrote, and a terrorist act or acts. In that sense, the offending was not spontaneous.

54   I have had regard to the fact that the period over which the offending was committed is limited. However, when one views the content of the documents the period of the offending becomes of less significance. This is particularly so when one considers that the offender made a multiplicity of statements, albeit over a short period, advocating violent attacks.

55   All of these matters reflect an offence of considerable objective seriousness. Put simply, the documents made by the offender were connected with preparation for a terrorist act or acts, directed towards damage to both property and individuals. By his plea, the offender has admitted to knowing of that connection.”

Ground of Appeal 1 – That in determining the appropriate discount to reflect the value of the applicant’s plea of guilty, his Honour did not have regard to the utilitarian value of the plea in accordance with s 16A(2)(g) Crimes Act 1914 (Cth)

34. In Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4, the Court of Criminal Appeal (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ) held:

“277   In providing for the fact of a plea to be taken into account, in our opinion, the legislature intended the encouragement of guilty pleas not only to provide evidence for remorse or contrition but to assist in the administration of justice. The principle of legality should not affect the attainment of that object.

278 In these circumstances it is our opinion that in sentencing proceedings governed by s 16A, a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing. To the extent that Tyler and the cases which followed it provide to the contrary, they should not be followed.

279   There remains the question of whether it is necessary or appropriate to specify the discount given for a plea. In R v Place, where the legislation in question was in similar terms to s 16A(2)(g), the plurality stated (at [81]-[83]) that courts should be encouraged to identify the specific reduction given. That is consistent with what was said by Kirby J in Cameron (at [71]) that it is desirable and certainly permissible to identify the measure of discount afforded for a plea of guilty. Further, McHugh J pointed out in Markarian (at [74]) that specification of such a discount is not inconsistent with the instinctive synthesis approach to sentencing.

280 Section 16A(2)(g) neither requires nor prohibits the specification of a discount. However, once it is accepted that s 16A allows a sentencing judge to give a discount to the sentence which would otherwise be imposed, it seems to us desirable that, in the interests of transparency, such discounts be specified. However, there is no obligation on the sentencing judge to do so, and a failure to do so would not of itself amount to error.”

35. It follows from that analysis that Ground of Appeal 1 has been made out. Justice Bellew’s understandable omission in not expressly taking into account the applicant’s entitlement to a discount for the utilitarian value of his guilty plea brings the matter within the type of error identified in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 being a “failure to take into account a material consideration” when determining the relevant sentence.

36. For completeness, it ought also be noted that the Crown accepted that there was an error in the commencement date of the sentence and that the correct commencement date was 10 December 2015. Accordingly, Ground of Appeal 2 has also been made out.

37. By way of further background, regard should be had to the recent decision of this Court in Bae v R [2020] NSWCCA 35 where Johnson J (with whom Bell P and Walton J agreed) restated the relevant principles to be applied when assessing the utilitarian value of a plea of guilty. Particular regard was had by the Court to the decision of R v Robert Borkowski [2009] NSWCCA 102 where the leading judgment was given by Howie J (with whom McClellan CJ at CL and Simpson J agreed) as follows:

“32   It should not be necessary to do so, but, because there appears to be discrepancies in the application of the discount for the utilitarian value of the plea, it is apposite to set out in point form the principles laid down by this Court and to be applied by sentencing courts. Of course these are principles of general application ...

1.    The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson at [154] ; Forbes [2005] NSWCCA 377 at [116].

2.    Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154].

3.    The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351 .

4.    The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225.

5.    There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse: MAK and MSK [2006] NSWCCA 381; Kite [2009] NSWCCA 12 or for the “Ellis discount”; Lewins [2007] NSWCCA 189; S [2008] NSWCCA 186.

6.    Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: SY [2003] NSWCCA 291.

7.    There may be offences that are so serious that no discount should be given: Thomson at [158]; Kalache [2000] NSWCCA 2; where the protection of the public requires a longer sentence: El-Andouri [2004] NSWCCA 178.

8.    Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280.

9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448.

10.    An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: Oinonen [1999] NSWCCA 310; Johnson [2003] NSWCCA 129.

11.    The discount can result in a different type of sentence but the resulting sentence should not again be reduced by reason of the discount: Lo [2003] NSWCCA 313.

12.    The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise.”

38. Johnson J in Bae v R confirmed the continuing relevance of R v Robert Borkowski when his Honour said:

“53   The approach in R v Borkowski applies to the assessment of the utilitarian value of a guilty plea for State offences. Nevertheless, in the same way as R v Thomson; R v Houlton has provided guidance for Commonwealth offences, the decision in R v Borkowski assists in a practical understanding of the features of the utilitarian value of a guilty plea, a factor which Xiao v R states can be taken into account for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth).”

39. It follows from that analysis that it is necessary for the applicant to be re-sentenced and in doing so, this Court will exercise its own independent discretion. This is in line what was said in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

40. It should also be noted that in the re-exercise of the sentencing discretion, regard has to be had to what has occurred since the applicant was originally sentenced. Information concerning those matters is set out in the affidavit of Stephen Eccleshall of 8 October 2020. That affidavit confirmed that the applicant has been in custody since 10 December 2015 and was moved to the High Risk Management Correctional Centre (HRMCC) at Goulburn on 21 December 2015. He has remained there ever since. The only change is that recently his designation has been reduced from “Extreme High Risk Restricted (EHRR) to Extreme High Security (EHS). That still involves significant restrictions but not as extensive as had been his situation until recently.

41. He has been disciplined on three occasions for breaches of rules but otherwise there has been no significant criticism of his behaviour while in custody. These three instances of misconduct did not prevent his classification being reduced to that of EHS.

42. Attached to the affidavit as Exhibit D is a psychological report, dated 16 April 2020, which was prepared at the request of the Correctional Centre.

43. The applicant told the psychologist about his increasing commitment to Islam which commenced at the age of 18. He told the psychologist that it was in Ramadan of that year that he became “more dedicated” and started praying. He engaged in this activity through what was described as “self directed learning”. He told the psychologist of becoming increasingly connected to another group of friends who shared grievances such as passport confiscations with each other.

44. When asked by the psychologist why he engaged in a particular episode of disobedience, i.e. refusing to return to his cell, the applicant said that this was a reaction to what he regarded as “unfair and abusive treatment from officers” and that “if they leave us alone we will leave them alone”. The comment made by the psychologist was “Mr Ghazzawy provided some insight into the function of his behaviour but appeared to justify his actions in the context of increased frustrations”.

45. Because of the applicant’s history of no reported violence while in custody, he was not given the full Violence Risk Scale (VRS) test but what was described as the “screening version of the VRS”. He was reported as having obtained an overall score of 4.1, which indicated a “low risk of future violent offending”.

46. In relation to “risk promoting indicators”, the psychologist reported as follows:

“48   On interview Mr Ghazzawy admitted that he ‘historically’ justified the use of violence through his narrative of Islam (more so the concept of ‘jihad’). He maintained that his current belief was that this was ‘incorrect’ and it only served to justify his grievances with the Australian Government at the time. He described the concept of jihad as being applicable when needing to survive or defend oneself ‘in protection never in oppression’. He provided an example of the Rohingya people in Burma, where women were being raped and children killed. He said that in such a case the Muslims would be acting within Islamic principles of justified violence to protect themselves. Mr Ghazzawy was unclear about his own self-obligation in such instances but stated that he was not in a position to make a difference and it wasn’t his individual obligation to participate in violence.

49   Mr Ghazzawy’s main concern is his previous alignment with ISIS ideology. He reports to have disengaged from his support of ISIS ideology due to now understanding that enforcement of Islam and acts of violence onto others as a form of progressing ideological and social political goals was indeed un-Islamic. Mr Ghazzawy stated that he agreed with the concept of a Caliphate ‘in principle’ in that it was consistent with the teachings of Islam (that Muslims have an obligation to live within a Caliphate) however denied that it should enforced onto others.

50   Further risks in this category lie in his propensity to hold onto grievances from perceived injustices and expressed emotions regarding both idiosyncratic and global issues; in particular his sense of feeling and being treated differently throughout his whole life and now in custody.”

47. In reaching a conclusion, the psychologist reported:

“61   Nonetheless, Mr Ghazzawy continues to present with several factors that sustain some level of risk for his potential to engage in violent extremist (re)offending. Although more mainstream in his views Mr Ghazzawy justifies the use of violence within Islam under certain circumstances and conditions. Without the right guidance and mentoring on these principles, Mr Ghazzawy is vulnerable to escalating his views to better suit his narrative if feeling victimised once again. Mr Ghazzawy is susceptible to feelings of unjustified persecution and holding grievances around perceived mistreatment and injustices of him and his religious and cultural values. He is also likely to be affected by grievances he sees as occurring globally such as in Burma and Syria.

62   Although generally a non-violent person within the appropriate context, Mr Ghazzawy has a history of resorting to verbal and physical aggression (incidents at school and an incident in HRMCC) as well as endorsing violent ideas. This remains a potential risk factor in the absence of Mr Ghazzawy learning how to respond to his emotions and thought patterns when such challenges arise. Furthermore, his risk is complicated by the lack of additional information required to assess certain milestones for Mr Ghazzawy during his preoccupation with ISIS and intended alleged travels to conflict zones. For instance, it is unclear if Mr Ghazzawy was influenced or impacted by any (social) media or materials he viewed in relation to ISIS or violent jihad propaganda and in what context did he first connect with members of the Khalid group.

63   Mr Ghazzawy’s most relevant risk factor which still presents is his high level of suggestibility and susceptibility to influence from others. Given his low average intellectual functioning and increased desire for social approval, Mr Ghazzawy is likely to need and continue to seek acceptance, connectedness and encouragement from those he views as like-minded. His history of lacking meaningful relationships, becoming socially withdrawn and destitute in isolation at times of his life bears onus on his need to feel part of a wider identity and belonging which likely motivates his need to remain in part of groups despite them being disruptive to his life.”

48. As can be seen from the comprehensive psychological report, there appear to have been some rather shallow improvements in the applicant’s demeanour and beliefs. Generally speaking he has behaved himself in custody. Nevertheless, I share the concerns of the psychologist as to whether there has been any real change to the applicant’s beliefs and his approach to life and religion. Given that one of the most important factors to be taken into account when sentencing for a terrorist offence is the protection of the community, I am not satisfied that there has been any significant change in the applicant’s beliefs. It follows that the matters of concern to the sentencing judge continue to be matters of concern, i.e. the perception that Islam was under attack and a sense of grievance which continues to affect and influence him.

49. In relation to what allowance should be made for the utilitarian value of the plea of guilty, regard can only be had to objective benefits which have been brought about by the plea. Subjective matters such as remorse are irrelevant to such an assessment. On the positive side, it is accepted that the plea was at an early point in time, although not at the earliest point. In addition, the plea of guilty saved the community the cost of a substantial trial. On the negative side, is the fact that negotiations had been taking place for a considerable period of time in relation to the charge to be faced by the applicant with his legal advisors trying to get the best result for him. Since the timing of a plea of guilty is such an important consideration when considering its utilitarian value, the longer the delay before a plea is entered, the lower the discount to be awarded.

50. Accordingly, applying the principles set out in R v Robert Borkowski and which were endorsed in Bae v R I would assess the utilitarian value of the plea of guilty at 17.5 per cent.

51. In relation to the re-exercise of the sentencing discretion by this Court, no challenge was made in the appeal to any of the factual findings by the sentencing judge. What was challenged was the finding that the objective seriousness of the offending, as assessed by the sentencing judge, was excessive, that it should be assessed at below the midrange and that this should be the approach followed by this Court when making that assessment. The applicant relied upon the same arguments before this Court as were relied upon at first instance, i.e. that only 143 words were involved, there was nil distribution of the documents, there was no planning or research or sophistication involved in the language used and the offending alleged in the indictment occurred over two days.

52. As this Court has said on many occasions, the assessment of the objective seriousness of an offence is very much a discretionary matter (Mulato v Regina [2006] NSWCCA 282).

53. My independent exercise of discretion when assessing the objective seriousness of the offence is very much in line with the conclusions arrived at by the sentencing judge. This is particularly so when regard is had to the purpose of the statements, the subjects of the charge. These, it seems to me, were largely used as a rallying cry to encourage the Khalid group to engage in terroristic activities on a large and significant scale so that even if the members of the group were killed and suffered martyrdom, they would have achieved something “great”.

54. In relation to other matters which were not challenged on re-sentence, my reasons are very much in line with those of the sentencing judge and in my independent exercise of the sentencing discretion, I would assess their importance and significance in the same way.

55. For the reasons already set out, I am not persuaded that the applicant has to any significant extent modified the views which he held and that he remains a threat to the community. I base that conclusion on the assessment of the psychologist who assessed the applicant in April 2020.

56. Nevertheless, the applicant has been successful in his appeal and in accordance with the increased discount for the plea of guilty, he will have to be re-sentenced. Accordingly, the orders which I propose are:

1. Grant leave to the applicant to appeal against his sentence out of time.

2. Grant leave to appeal against sentence.

3. Allow the appeal.

4. Quash the sentence imposed by his Honour Justice Bellew on 8 May 2017.

5. In lieu thereof, the applicant is sentenced to imprisonment for 8 years, commencing 10 December 2015 and expiring 9 December 2023, with a non-parole period of 6 years expiring on 9 December 2021.

57. HARRISON J: I agree with Hoeben CJ at CL.

58. IERACE J: I also agree with Hoeben CJ at CL.

**********

Decision last updated: 16 April 2021