IM v R

Case •

[2019] NSWCCA 107

•

24 May 2019

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: IM v R [2019] NSWCCA 107
Hearing dates:9 July 2018
Date of orders: 24 May 2019
Decision date: 24 May 2019
Before: Meagher JA at [1];
RA Hulme J at [71];
Button J at [72].
Decision:

(1) Set aside the sentencing and other orders made in respect of the offender IM on 3 November 2017 and identified by the letters (ii) to (vi).

 

(2) The offender IM is sentenced to imprisonment for a period of 10 years and 9 months, commencing on 31 July 2017 and expiring on 30 April 2028.

 

(3) Specify a non-parole period of 8 years commencing on 31 July 2017 and expiring on 30 July 2025.

 

(4) The total sentence is one of imprisonment for 10 years and 9 months commencing on 31 July 2017 and expiring on 30 April 2028, and the offender IM will be eligible for release on parole on 30 July 2025.

 

(5) Pursuant to s 19(1) of the Children (Criminal Proceedings) Act, order that this sentence be served by IM as a juvenile offender up to his attaining the age of 21 years on 12 September 2021.

(6) Pursuant to s 105C of the Criminal Code, warn the offender that an application may be made for a continuing detention order requiring him to be detained after the completion of his sentence.
Catchwords:

CRIME – appeal against sentence– where discount for utilitarian value of guilty plea in sentence for federal offence not taken into account – where error conceded by Crown – need to resentence

  SENTENCING – terrorist offence – conspiracy – preparation and planning of terrorist act or acts involving threat to human life – objective seriousness – significance of punishment, deterrence and protection of the community – mitigating factors – youth (14 years and 2 months at time of offending) and prospects of rehabilitation
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A, 19, 33
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth), Pt 1B, ss 16A, 19AG, 20C
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Code 1995 (Cth), ss 11.5, 100.1, 101.6
Firearms Act 1996 (NSW)
Judiciary Act 1903 (Cth), ss 68, 79
Cases Cited: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Bui v DPP (2012) 244 CLR 638; [2012] HCA 1
Butters v R [2010] NSWCCA 1
Director of Public Prosecutions (Cth) v MHK (2017) 52 VR 272; [2017] VSCA 157
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Fattal v The Queen [2013] VSCA 276
Hall v R [2017] NSWCCA 260
IE v The Queen [2008] NSWCCA 70; (2008) 183 A Crim R 150
Imbornone v R [2017] NSWCCA 144
Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
Kentwell v The Queen (2014) 252 CLR 60; [2014] HCA 37
KT v R [2008] NSWCCA 51; (2008) A Crim R 112
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Lodhi v The Queen [2007] NSWCCA 360; (2007) 179 A Crim R 470
Pfitzner v R [2010] NSWCCA 314
Putland v R (2004) 218 CLR 174; [2004] HCA 8
R v Ghazzawy [2017] NSWSC 474
R v Harrison [2001] NSWCCA 79; (2002) 121 A Crim R 380
R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim 286
R v Kahar [2016] 1 WLR 3156
R v Lodhi [2006] NSWSC 691; 199 FLR 364
R v Martin [1999] 1 Cr App R (S) 477
R v Pham & Ly (1991) 55 A Crim R 128
R v Qutami [2001] NSWCCA 353; (2001) A Crim R 369
R v Sakr (1987) 31 A Crim R 444
R v Togias [2001] NSWCCA 522; (2001) 127 A Crim 23
R v Voss [2003] NSWCCA 182
R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265
Tyler v R [2007] NSWCCA 247; (2007) 173 A Crim R 458
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
Zhang v R [2018] NSWCCA 82
Category:Principal judgment
Parties: IM (Applicant)
Regina (Respondent)
Representation:

Counsel:
G James QC (Applicant)
S McNaughton SC, M England (Respondent)

  Solicitors:
Lawyers Corp Pty Ltd (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):2015/362628
Publication restriction:The publication or broadcasting of IM’s name or anything that identifies him, or is likely to lead to identification of him is prohibited under Children (Criminal Proceedings) Act 1987 (NSW), s 15A.
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Common Law
Citation:
[2017] NSWSC 1365
Date of Decision:
3 November 2017
Before:
Bellew J
File Number(s):
2015/362628

Headnote

[This headnote is not to be read as part of the judgment]

On 3 November 2017, IM was sentenced to imprisonment for 13 years and 6 months in respect of a terrorist offence to which he pleaded guilty on the first day of a proposed six week trial. He was 14 years and 2 months old at the time of the offending.

The sentencing judge followed the reasoning in Tyler v R [2007] NSWCCA 247; (2007) 173 A Crim R 458. After that sentencing, the Court of Criminal Appeal’s reasons in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 were handed down, overturning Tyler to the extent that it provided that a sentencing judge may not have regard to the purely utilitarian value of a federal offender’s guilty plea. IM subsequently applied for leave to appeal against his sentence, on that and five other grounds.

The Crown conceded there had been error requiring the Court of Criminal Appeal to resentence the offender.

The issues relevant to the re-exercise of the sentencing discretion were:

(i)   How the objective seriousness of terrorist offences should be determined.

(ii)   In the face of the offender’s youth and prospects of rehabilitation, the relative significance of punishment, deterrence and protection of the community.

Held, the Court, resentencing the offender (per Meagher JA, R A Hume and Button JJ agreeing)

As to issue (i):

1. The conduct involved in terrorist offences is objectively serious because it threatens democratic government and the security of the state. Such conduct is most serious where it involves an intended threat to human life: at [45].

R v Kahar [2016] 1 WLR 3156 referred to.

2.   The legislation under which the offences have been created was specifically set up to intercept and prevent terrorist acts at an early stage. As such it is not relevant in assessing objective seriousness that the precise act or acts of terrorism and their timing had not been resolved: at [48] – [49].

R v Lodhi (2006) [2006] NSWSC 691; 199 FLR 364; Director of Public Prosecutions (Cth) v MHK (2017) 52 VR 272; [2017] VSCA 157; Fattal v The Queen [2013] VSCA 276 applied.

As to issue (ii):

3.   When passing sentence for the most serious terrorist offences, the principal consideration of the Court will be to punish, deter and protect the community: at [50] – [51].

Lodhi v The Queen [2007] NSWCCA 360; (2007) 179 A Crim R 470; R v Martin [1999] 1 Cr App R (S) 477; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14; R v Sakr (1987) 31 A Crim R 444; Director of Public Prosecutions (Cth) v MHK (2017) 52 VR 272 referred to.

4. The force of an ideological or religious motive for a particular terrorist offence may not diminish the significance of deterrence as a factor informing the exercise of the sentencing discretion: at [52].

Lodhi v The Queen [2007] NSWCCA 360; (2007) 179 A Crim R 470; Director of Public Prosecutions (Cth) v MHK (2017) 52 VR 272 referred to.

5.    In sentencing for terrorist offences, the significance of punishment, deterrence and protection of the community means that mitigating factors such as youth and prospects of rehabilitation are given much less weight: at [53] – [56].   

Lodhi v The Queen [2007] NSWCCA 360; (2007) 179 A Crim R 470; Director of Public Prosecutions (Cth) v MHK (2017) 52 VR 272; IE v The Queen [2008] NSWCCA 70; (2008) 183 A Crim R 150; R v Pham & Ly (1991) 55 A Crim R 128; KT v R [2008] NSWCCA 51; (2008) A Crim R 112 applied.

Judgment

MEAGHER JA:

Overview

  1. IM seeks leave pursuant to Criminal Appeal Act 1912 (NSW), s 5(1)(c) to appeal from a sentence imposed by Bellew J on 3 November 2017: R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Mouie; R v Farhad Said [2017] NSWSC 1365. At the time of the offence for which he was sentenced, IM was 14 years and 2 months old. Because that offence, to which he pleaded guilty, is a “serious children’s indictable offence”, unless this Court authorises otherwise under s 15C, the publication or broadcasting of his name , or anything that identifies him, or is likely to lead to identification of him, is prohibited by Children (Criminal Proceedings) Act 1987 (NSW), s 15A.

  2. On 31 July 2017, the day their six-week trial was due to commence, IM and two others, Sulayman Khalid (Khalid) and Jibryl Almaouie (Jibryl) pleaded guilty to the following offence under ss 11.5 and 101.6(1) of the Criminal Code 1995 (Cth) (the Code), which carries a maximum penalty of life imprisonment:

Between about 7 November 2014 and 18 December 2014, at Sydney in the State of New South Wales, did conspire with each other and Mohamed Al Maouie, Ibrahim Ghazzawy, Farhad Said and diverse others to do acts in preparation for a terrorist act (or acts).

  1. A person who conspires with another person to commit an offence, commits the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed (s 11.5 of the Code). Under s 101.6(1), a person “commits an offence if the person does any act in preparation for, or planning, a terrorist act”. Section 100.1(1) defines a “terrorist act” to be:

… an action or threat of action where:

(a) the action falls within subsection (2) and does not fall within subsection (3); and

(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c) the action is done or the threat is made with the intention of:

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii) intimidating the public or a section of the public.

  1. An action falls within s 100.1(2) as provided in para (a) of that definition if it:

(a) causes serious harm that is physical harm to a person; or

(b) causes serious damage to property; or

(c) causes a person’s death; or

(d) endangers a person’s life, other than the life of the person taking the action; or

(e) creates a serious risk to the health or safety of the public or a section of the public;…

  1. By s 101.6(2), the offence of doing any act in preparation for, or planning, a terrorist act is committed even if the terrorist act does not occur; or the person’s act is not done in preparation for, or planning, a specific terrorist act; or the person’s act is done in preparation for, or planning, more than one terrorist act.

  2. Jibryl was also charged with and pleaded guilty to four further offences under the Firearms Act 1996 (NSW). The remaining three persons named in the charge in [2] were separately charged with the offence of making documents likely to facilitate terrorist acts contrary to s 101.5(1):

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

  1. The offence under s 101.5(1) carries a maximum penalty of 15 years imprisonment.

  2. The sentencing judge imposed the following sentences for the offence of conspiring to do acts in preparation for a terrorist act:

  1. Khalid, described in the statement of agreed facts tendered at the sentencing hearing as the “leader of the group”, who turned 20 years old at the beginning of the conspiracy period, was sentenced to 22 years and 6 months imprisonment, with a non-parole period of 16 years and 9 months;

  2. Jibryl, described in the agreed facts as being “high up in the group” and aged 21 years and 1 month at the time of the conspiracy, was sentenced to 18 years and 10 months imprisonment, with a non-parole period of 14 years and 2 months; and

  3. IM, described as having “a high level in the group”, was sentenced to 13 years and 6 months imprisonment, with a non-parole period of 10 years and 1 month.

  1. The sentences imposed on the remaining three offenders, for intentionally making a document connected with the preparation for a terrorist act, were:

  1. Mohamed Al Maouie, aged 19 years at the relevant time was sentenced to 9 years imprisonment, with a non-parole period of 6 years and 9 months;

  2. Farhad Said, aged 22 years and 9 months at the relevant time, was sentenced to 9 years and 6 months imprisonment, with a non-parole of 7 years and 1 month; and

  3. Ibrahim Ghazzawy, described as having a “mid-level role in the group” and aged 19 years old at the relevant time, was sentenced to 8 years and 6 months imprisonment, with a non-parole period of 6 years and 4 months. See R v Ghazzawy [2017] NSWSC 474.

The appeal must be allowed

  1. Leave to appeal should be granted and the sentencing appeal allowed. Although there are 6 grounds of appeal, it is only necessary to consider the first which the Crown correctly accepts involved error, requiring that this Court re-exercise the sentencing discretion. That ground is:

In determining the appropriate discount, to reflect the value of the Applicant’s plea of guilty in accordance with s. 16A(2)(g) Crimes Act 1914 (C’th), his Honour did not have regard to the utilitarian value of the Applicant’s plea of guilty.

  1. At the time of the sentencing on 7 November 2017, this Court’s decision in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 was reserved. That decision, handed down on 5 February 2018, considered whether, in sentencing for a Commonwealth offence, a discount may be given for the utilitarian value of a guilty plea. The Court (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 [of the Crimes Act 1914 (Cth)], a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing. To the extent that [Tyler v R [2007] NSWCCA 247; (2007) 173 A Crim R 458] and the cases which followed it provide to the contrary, they should not be followed.

  1. In understandably proceeding otherwise and applying Tyler, the sentencing judge considered that notwithstanding the language of s 16A(2)(g), no discount was available for the utilitarian value of a federal offender’s plea of guilty, whilst accepting at the same time that a federal offender could 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” (Judgment [105]). Furthermore in Jinde Huang aka Wei Liu v R [2018] NSWCCA 70, at [9], Bathurst CJ (Hoeben CJ at CL agreeing) suggested that the following approach be taken by a sentencing judge in dealing with the utilitarian value of a plea of guilty to a federal offence, following the decision in Xiao:

(1) Sentencing judges should take into account the utilitarian value of a plea in Commonwealth sentencing offences.  Failure to do so constitutes error.

(2) It is desirable that any discount given for the utilitarian value be specified. However, a failure to do so would not of itself constitute error.

(3) It is an error to specify a range of percentage discounts as distinct from a specific percentage.

This Court must re-sentence

  1. In Kentwell v The Queen (2014) 252 CLR 601 at [42]; [2014] HCA 37, the plurality (French CJ, Hayne, Bell and Keane JJ) said:

… When a [sentencing] judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit.

  1. See also Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, which concerned a serious driving offence contrary to the Crimes Act 1900 (NSW), where the conceded error of the sentencing judge was giving a discount of 20%, rather than 25%, for the utilitarian value of an early plea. The issue that divided the parties was as to the consequence of that error. The Crown submitted that it did not vitiate the entire sentencing discretion, but only a discrete component, namely the discount for the plea. The applicant contended that in the face of the error the Court was required by Criminal Appeal Act, s 6(3) to resentence him, taking into account any additional material placed before the Court for that purpose. The Court held that where the error affects the sentencing discretion, s 6(3) requires that it form its own view of the appropriate sentence, although not necessarily to resentence.

  2. Before considering the approach and principles to be applied in the re-exercise of the sentencing discretion, it is necessary, by reference to the evidentiary and other material, to describe IM’s background, and involvement in the terrorist offence.

The evidentiary material relied on in the sentencing proceeding

  1. Before the sentencing judge, the Crown tendered a separate statement of agreed facts in relation to each offender. In IM’s case that statement deals with the following subjects: the ideology of the offender and his co-conspirators; an outline of the conspiracy and summary of the overt acts relied on; a summary of the roles of the various conspirators; a description and copies of the handwritten planning documents prepared in furtherance of the conspiracy; an explanation of the content of each of those documents; a description of the firearms and ammunitions either in Jibryl’s possession or sourced by IM; a summary of intercepted telephone communications (in IM’s case, between him and Khalid); and finally, the meetings of the conspirators between early November and 18 December 2014.

  2. The Crown also tendered a Juvenile Justice Report of Ms Van Ly and Ms Jenette Duckett, prepared for IM’s sentence hearing, as well as a report of Ms Arnold, the Assistant Manager of the Frank Baxter Juvenile Justice Centre. As the narrative below concerning IM’s firearms offence explains, IM was first held at that facility from 31 July 2017.

  3. In IM’s case, in addition to character references, there were tendered statements of his parents and the reports of three psychologists – Dr Bradley Jones, a forensic psychologist, Dr Lizabeth Tong, a clinical psychologist and Adjunct Professor Stephen Woods, also a forensic psychologist. There was also tendered a report of Dr Stephen Allnutt, a forensic psychiatrist. None of these witnesses was required for cross-examination by the Crown.

  4. IM did not give evidence in the sentencing hearing, and accordingly could not be cross-examined about statements and reports he had made to officers of Juvenile Justice, and to each of these doctors. This notwithstanding, both before the sentencing judge and in this Court senior counsel for IM in varying degrees relied on those statements, both as evidence of IM’s state of mind at the time of the offending, as well as evidence as to his current attitudes and beliefs, particularly in relation to terrorism, violent jihad and the nature and seriousness of his offending. As evidence of the latter, those hearsay statements were relevant to an evaluation of IM’s contrition and prospects of rehabilitation.

  5. In a series of decisions this Court has made clear that if offenders do not give evidence in a sentencing hearing and are not tested about assertions made to others which are relevant in determining an appropriate sentence, that material, whilst admissible, must be treated with very considerable caution (see R v Qutami [2001] NSWCCA 353 at [58] (Smart AJ); (2001) A Crim R 369). Ordinarily such evidence should be given very limited weight, assuming it is not inconsistent with the facts the offender has agreed should form the basis of the sentencing decision, in which case the agreed facts should prevail: see R v Harrison [2001] NSWCCA 79 at [44] (Spigelman CJ); (2002) 121 A Crim R 380; R v Qutami at [58]-[59] (Smart AJ), [79] (Spigelman CJ); Butters v R [2010] NSWCCA 1 at [18] (Fullerton J); Pfitzner v R [2010] NSWCCA 314 at [33] (McClellan CJ at CL); Imbornone v R [2017] NSWCCA 144 at [9] (R A Hulme J); [57] (Wilson J); Hall v R [2017] NSWCCA 260 at [48] (Wilson J); Jinde Huang aka Wei Liu v R at [66] (Bellew J); Zhang v R [2018] NSWCCA 82 at [55] (Hoeben CJ in CL).

IM’s firearms offence

  1. On 31 December 2014, IM was charged with three offences of possessing unauthorised firearms, to which he pleaded guilty at Parramatta Children’s Court on 26 August 2015, and was required to enter into a good behaviour bond in accordance with Children (Criminal Proceedings) Act, s 33(1)(b). IM was arrested on 10 December 2015 and charged with the terrorist offence, and remained in custody until he was released on bail on 14 January 2016. He returned to custody on 31 July 2017, following his plea of guilty on that day. From that time until he was sentenced on 3 November 2017, IM was held at the Frank Baxter Centre. Since then he has continued in custody at that facility.

IM’s background, and the commission of the offence

IM’s early childhood

  1. The primary sources of the following summary are the statements of IM’s parents, and the Juvenile Justice Report tendered by the Crown.

  2. IM’s father was born in Tripoli and migrated to Australia when he was very young. IM’s mother was born in Australia, Islam is their family religion. IM is the younger, by six years, of two sons. His parents described him as a shy child who at a young age showed an interest in music and sport but not religion. His parents separated for a period of two years or so when he was aged between about 11 and 14. It was early in that period that he started attending the prayer room at the Bankstown Mosque. Around the time that his parents recommenced living together his father recalls an occasion when IM asked him about becoming involved in the conflict in Syria. His father told him that was a political dispute and that if anyone “at the prayer room” was talking about “that sort of stuff I want you to keep away from them”. During this period neither parent had any knowledge of the nature of IM’s developing relationship with his co-conspirators, and that remained the position until the police raided their home in December 2014.

  3. Juvenile Justice interviewed IM and his parents in August or September 2017, whilst he was in custody. IM described his parents as being supportive, providing assistance when needed as he grew up. He was not exposed to violence or anti-social behaviour during that period. In the time of his parent’s temporary separation, IM and his brother were looked after by their father and grandmother. In this period, IM told his mother that he was seeing a number of older friends at Bankstown Mosque, and that they looked after him and treated him with respect.

IM’s statement of agreed facts

  1. Much of the statement of agreed facts tendered by the Crown against Khalid is extracted by the sentencing judge over 33 pages at Judgment [29]. An extract from the substantially similar statement tendered against IM is at Judgment [178]. It is sufficient for present purposes to include in these reasons relatively short extracts from the statement of agreed facts tendered by the Crown against IM:

BACKGROUND

A.   Ideology

1.   "IM" ("the offender"), Sulayman Khalid and Jibryl Almaouie (together, "the conspirators") adhere to the religious ideology of violent jihad. Specifically, they adhere to the religious ideology of Wahhabi-Salafism. This is the ideology that inspires ISIS (the Islamic State of Iraq and Syria), Al-Qaeda and like-minded groups and their supporters.

2.   The cause that was to be advanced in the proposed terrorist act or acts was that of violent jihad. The essential feature of the cause, which the conspirators believed to be a religious obligation, was to engage in violence to advance what they considered to be the interests of Islam. They believed Islam to be under attack from various Western countries, in Syria and the Middle East, and also in Australia. They also believed that those who died pursuing violent jihad were martyrs, who would be rewarded in paradise.

3.   During the conspiracy period (that is, between about 7 November 2014 and 18 December 2014), each of the conspirators was committed to Islam and they often spoke about it and included it in their daily lives. Whilst the word “jihad” is used and understood amongst the wider Muslim community to mean “spiritual struggle”, the conspirators used the term (and possessed material that used the term) to mean “violent jihad”.

4.   During the period of the conspiracy and for some time before, Khalid was active in seeking to advance Islam. He had actively proselytized for Islam in the street and posted videos of those activities online. His activity was known to his friends, including (amongst others) the offender, who had a video on his phone of Khalid preaching Islam in the street.

5.   Khalid had publicly displayed his support for the violent jihad espoused by ISIS. One way he did so was by obtaining and wearing clothing with badges and adornments of ISIS. When police executed a search warrant at his premises on 18 December 2014, the items they found included clothing bearing identifiable ISIS markings and a series of printed A4 sheets which, when placed together, formed an almost complete ISIS banner. Furthermore, Khalid had appeared on the “Insight Program”, which was televised nationally, and supported the violent jihadi ideology of ISIS.

6.   Khalid had also made a YouTube video which he had posted on the internet, titled “A Direct Message to the Secret Services, A call to Taweed, Millatu Ibrahim”.  In that video, which features an ISIS emblem, Khalid makes a thinly veiled threat against various Western security services, including those of Australia. The video was one of 25 published online by Khalid between 25 May 2013 and 7 December 2014, the majority of which show Khalid preaching and discussing Islam.

7.   Khalid was also the conspirator who sent religious advice and sayings to the other conspirators. He had many telephone communications with the offender, during which they spoke about martyrdom and committing some form of terrorist act. The urgency with which the offender longed to commit a terrorist act and become a martyr is clear from those communications.

8. On 18 December 2014, when the offender's telephone was seized under warrant executed at his home [XXX], it was found to contain the following extremist material:

a) Violent jihad images, including stills of a beheading and images and documents in praise of mujahedeen and jihad;

b) Images of ISIS banners, weapons and persons giving the ISIS finger salute;

c) Many images of the offender giving the same salute, including an image of the offender with Khalid and another person all giving the salute; and

d) An image from Khalid's "Direct Message to the Secret Services” and a video of Khalid preaching in the streets.

9. Also during the search of the offender's premises on 18 December 2014, he was found to have the following material which was seized:

a) Six CDs titled "lives of the prophets";

b) Eleven CDs labelled "Anwar Al-Awlaki" (a jihadist cleric);

c) Three CDs labelled "ways and means of devil", "The plot of the hypocrites" and "Arabic/Syrian Anasheed";

d) One hand written document entitled "Lover of Jihad"; and

e) Document titled "the blood of the Shuhada".

B.   Outline of the conspiracy

10.   The offender and the other conspirators agreed with each other and Mohamed Al Maouie, Ibrahim Ghazzawy and Farhad Said (all of whom, with others, were under investigation by the Joint Counter Terrorism Team from May 2014) to do acts in preparation for, or planning of, a terrorist act or acts. The terrorist act was to involve firearms and was to be a religiously inspired act of terrorism, namely violent jihad. The nature of the act or acts and the proposed target or targets were unresolved, but included the killing of a member or members of either the New South Wales Police Force or Australian Federal Police and/or attacks upon government buildings. 

11.   The conspiracy coalesced between about 2 November 2014 and 18 December 2014. The conspirators began planning the attacks outlined in documents located at Khalid’s house on 18 December 2014.

12.   The overt acts of the offender and his co-conspirators in furtherance of the conspiracy are summarised in the Table of Overt Acts, annexed at “B”. Put briefly, the conspiracy involved, amongst other actions, the following:

a)   Considering, orally and in writing, various possible forms of terrorist act including ways to carry out the act or acts (including using firearms in a direct attack or using guerrilla tactics);

b)   Considering possible targets for a terrorist act or acts, such as individual members of the New South Wales Police Force or the Australian Federal Police, and the Australian Federal Police headquarters building;

c)   Sourcing, obtaining and retaining firearms and ammunition;

d)   Numerous telephone communications (by text message and by telephone conversations) about impending martyrdom, training for a domestic terrorist attack, planning a domestic terrorist attack and firearms and ammunition; and

e)   Meeting at Khalid’s premises [XXX] during the evening and early morning of 17 and 18 December 2014 for the purpose of considering documents the conspirators had made in preparation for a terrorist act.

13.   Some of the code words used by the conspirators, including the offender, were as follows:

a)   Banana      =   Firearms

b)   Motorbikes      =   Firearms

c)   Party         =   Meeting/terrorist attack

d)   Wedding date      =   Date of (terrorist) attack

e)   China         =   Overseas, fighting with ISIS

f)   Wombat      =   Khalid’s residence

g)   Over Pools      =   Overseas

h)   Tony         =   Ghazzawy

As well as being used during the conspirators' and others' coded conversations, some of these words were located on terrorist planning documents found at Khalid's home on 18 December 2014 (which are described in detail below).

14. The content of the planning documents, together with Jibryl Almaouie's possession of firearms and ammunition and the offender's sourcing of four firearms (each of which is addressed in further detail below), confirm that the terrorist act or acts in respect to which the conspirators engaged in acts of preparation and planning was an act or were acts of terrorism by using firearms to kill those targeted by the act or acts. The conspirators' intention was that the terrorist act or acts would intimidate the Australian Federal Government and State governments, or the public.

…

C.   Roles of conspirators

…

(ii)  The offender, “IM”

20.   The offender was born on 12 September 2000 and is now 17 years old. At the commencement of the conspiracy, he was 14 years 11 weeks old. The offender had a high level in the group.

21.   The offender was a strong adherent of the jihadi ideology and had a significant amount of extremist material on his telephone. He often expressed a strong desire to engage in a terrorist act and expressed an urgent desire for martyrdom. A number of the conversations he had with Khalid involved Khalid urging the offender not to go to Syria but to stay and pursue a terrorist act here in Australia.

22.   The offender was involved in a significant number of intercepted SMS and telephone conversations with Khalid. In addition to those communications described above, the offender also asked when a terrorist act or acts would be committed here in Australia in his telephone communications with Khalid. The offender often spoke about the desire for weapons, in respect of which he and Khalid used code words such a 'bananas', and he said that if he was not able to train for any terrorist act he would not take part. He also spoke to Khalid in code about places and events, and asserted that if he was not able to train for any terrorist act, be would not take part.

23.   As part of the offender's role in the conspiracy, he sourced four firearms at his uncle's house and sent photographs of himself posing with the firearms to Khalid. The offender sourced these firearms so the group had information on another possible source of firearms, by taking them without the uncle's knowledge or consent. The offender located the firearms and ascertained the nature of each, and confirmed his uncle's possession of them to Khalid.

24. By his close association with Khalid, their talk of joint martyrdom, his strong urging that a terrorist act be done here in Australia and his sourcing of firearms, IM had a high role in the conspiracy.

…

THE DOCUMENTS

A.   Overview - documents’ purpose and circumstances of creation

41.   The offender agreed to and in his many intercepted messages, encouraged, the preparation and planning of a terrorist act as manifested in the handwritten planning documents prepared by the other conspirators in furtherance of the conspiracy. The documents were connected with the preparations for a terrorist act or acts both on their face, and in the circumstances of their creation. The documents record a form of discussion and they were read, discussed and added to as the discussion continued. The forensic evidence shows that the documents were handed to others, apart from the author. In some cases, writing was added to the documents by someone other than the original author. The documents demonstrate an active and real consideration of the type of terrorist act contemplated, and its target. They outline different methods for the commission of one or more acts of terrorism and set out possible targets.

42.   The documents also demonstrate that the terrorist act or acts contemplated involved the use of firearms. They demonstrate that the type of acts being planned involved the killing of police - referred to disparagingly at times as “dogs” - and government officials. The documents demonstrate the religious inspiration for the act of terrorism contemplated, and reflect the violent jihadi ideology of the group (including by express references in the documents to jihad, religious obligation and the defence of Islam).

…

B.   Firearms sourced by the offender

59.   At about 8.00pm on 6 December 2014, the offender went to his uncle's house with the intention of ascertaining what firearms were there, of taking possession of these firearms for the purpose of posing for photographs and sending these to Khalid, to check how they were housed and to generally assess if those firearms might be seized and used by the group. Over the next couple of hours he posed for photographs in various positions with three of the firearms, which he sent to Khalid.

60.   The firearms sourced by the offender at his uncle’s house were:

a)   A Marlin 336 Rifle;

b)   An under over double barrel shotgun;

c)   A Carl Gustaf 96 Rifle; and

d)   A Thompson Centre Rifle.

Copies of photographs found on the offender's phone showing him posing with these firearms, including those sent to Khalid, will be tendered on sentence.

INTERCEPTED TELEPHONE COMMUNICATIONS

62.   Khalid's telecommunications service was lawfully intercepted from 7 November 2014 to 24 December 2014. Monitoring of this service confirmed that Khalid was in regular contact with the other conspirators and Mohamed Al Maouie, Ghazzawy and Said. At the time, the services used by each were:

a)   KHALID: 0405215760 - subscribed in the name of Suleiman HALID;

b)   THE OFFENDER "IM": 0420404974 - subscribed in the name of Adam STEVENS;

…

64.   The offender and Khalid had a large number of telephone communications. In many of these intercepted communications, code words were used. The offender and Khalid knew that their activities had to be kept secret from the authorities, and attempted to cloak the true meaning of their conversations.

…

66.   The key topics of discussion between Khalid and the offender were the desire to die, in particular to die as martyrs together, the offender's questions about whether it was better to do a terrorist act here in Australia or to go overseas - apparently to Syria - and to engage in fighting there (to which Khalid responded it was better to do so here, and that they would do so) and coded discussions about firearms and ammunition.

…

69.   At 5:54pm on 9 November 2014, the offender sent Khalid an SMS message saying “But allhamdulilah [i.e. “All praise is due to God alone”] it is 9 brothers including me”.

70.   On 10 November 2014, the offender called Khalid. During their conversation the offender told Khalid that he had sought his father’s permission to travel overseas to fight, however, his father refused. The offender discussed martyrdom and wanting to go to “Jannah”. 

71.   From 2:16pm on 10 November 2014, the offender and Khalid had the following conversation by way of SMS messages:

OFFENDER:    “Allhamdulilah!!!! [i.e. “All praise is due to God alone”] So we have 9 Shabab [i.e. “Boys”]  try to get more?”

KHALID:    “Can’t see you today 9 shabab meaning 9 chefs cause in shall ah were going to be cooking lots of nice food”

KHALID:    “We have a big kitchen as well”

OFFENDER:   “And do we have lots of supplies and you heard me if I don’t go cooking training I’m not coming”

KHALID:   “We’re gonna try to get in the master chefs competition”

OFFENDER:   “Look Abu are we gonna train”

KHALID:   “It depends what the master chefs conditions are cause there a lot of mad chefs out there that know how to cook pasta then u got chicken lam sheep all kinds of nice tender foods”

KHALID:   “I love my stomach and you know every chef has to love his stomach”

OFFENDER:   “Yeah if there is a lot of good cooks I don’t care about if there good I want to train so I can be good if I don’t train with the materials we need I’m not coming.

…

78.   On 5 December 2014, the offender sent a text message to Khalid as follows: “Glory be to Allah I had a dream that we did bananas here”.

79.   On 6 December 2014, the offender sent a text message to Khalid as follows: “Do you know how my dad got he’s bananas licences anyway me and him are going to check some bananas out at hes brothers cause he’s has some.” (The offender’s father was the holder of a firearms licence.) At the time the offender’s uncle was also the licensed owner of the four firearms that are described above.

80.   During the evening of 6 December 2014, the offender sent Khalid a text message as follows: “Like what time ,,, do you want me to send you a pic of me holding the banana”. Khalid replied: “No show me the banana tomoz so I can eat it as well”.

…

82.   On 10 December 2014, the offender sent Khalid an SMS that included the words: “I think Allah willing I am going to get the Garden of Paradise through that banana. God is great, no god but Allah is the Most Great there is no god but Allah O Abu Bakr”. Khalid responded “Praise be to Allah are you going to stand and stay beside me ?” and the offender replied “Allah willing yes.”

…

86.   At 2:53pm on 16 December 2014, Khalid and Jibryl had a further conversation during which they used code, and referred to food in place of ammunition; for example: cake, apricots, marshmallows, apples, grapes, strawberries, sponges, and other terms.

87.   At 2:17pm on 17 December 2014, the offender and Khalid had a telephone conversation. In this call the offender was becoming impatient and wanted to know when the terrorist attack would happen. The offender asked Khalid “Tell me now, good news or bad?”. Khalid stated that he would tell the offender after, when he saw the offender. Khalid said ''Now don't give me a headache!'. Khalid said that the news is “Um, ah, in the middle”. The offender

asked ''So does it mean we’re taking a step or we’re not gonna take a step?”. Khalid said that it was not about that. The offender asked if “he” changed the “wedding date”, and Khalid said that “it is but it’s not. It’s nothing about the day or anything”, and that he needed to speak to the offender and ask him a question. The offender guessed it was about “John”. Khalid said that it was not about John. The offender guessed that John wanted in on the “marriage”, “Like my supplication has been answered and everything, man, glory be to Allah.”

MEETINGS OF THE CONSPIRATORS AND OTHERS

88.   On 2 November 2014, Khalid and three others visited a prisoner called Wisam Fayad at Goulburn jail. During the visit, in response to a question from one of the men “Is Paradise real or not”, Khalid answered “100%”. He later said “I’m the only one with balls”.

89.   After that jail visit, the conspiracy commenced. Khalid was responsible for arranging meetings of the conspirators and others, and encouraged them to meet at his premises [XXX]. They also met at other places such as parks, and from time to time to pray.

90.   Khalid increased the frequency of meetings with the conspirators and others from 29 November 2014 until the execution of a number of search warrants on 18 December 2014 (further details of which are set out below). He and the others used coded language to arrange the meetings, for example referring to Khalid’s premises as the “wombat hole”. The conspirators and met regularly at Khalid’s house in [XXX] during the first part of December 2014 and leading up to 18 December 2014.

The report of Ms Arnold

  1. This report is summarised by the sentencing judge at Judgment [180]-[183]. It was prepared in September 2017, describing IM’s “current custody conditions” and behaviour. At that time IM had been in custody for only two months. He was described as an “intelligent young person” who at times “displayed anti-social behaviour and a disregard for the rules and practices of the centre”.

The report of Juvenile Justice

  1. This report includes a summary of IM’s “family and living circumstances”, his “personality and behaviour” and his “attitude and beliefs”. The first subject is dealt with at [23] and [24] above. In relation to IM’s “personality and behaviour”, the report records that he:

  • identified that his negative peer associations, lack of consequential thinking and immaturity are factors that contributed towards his offending.

  • maintained that when his co-offenders discussed the planning of the offence through conversations or text messages, he did not take this seriously and believed the whole plan was a joke.

  • reported that due to his young age and immaturity, he was not aware that his actions at the time were wrong nor did he understand the legal consequences and the extent of his engagement in the offending behaviours [and] stated that he was focussed on pleasing his peers and gave little thought to the outcome.

  1. In relation to his “attitude and beliefs”, this report records that IM:

  • denied he was a supporter of ISIS or any acts of terrorism [and] stated that he does not want to die young and leave his family behind.

  • highlighted the importance for him to fit in with his peers at the time of the offence [and] stated that after his arrest, he felt that his co-offenders had used him due to his young age and immaturity [although] he accepted responsibility for his part in the offence and considers his involvement as serious.

The psychological and psychiatric evidence

  1. Dr Jones was primarily retained to express an opinion as to whether IM was fit to be tried. Having assessed IM in mid-November 2016, Dr Jones reported that he was experiencing “clinically severe levels of anxiety and depression” in reaction to his being charged, and subject to the continuing court proceedings. The neurophysiological intelligence and behavioural assessment that he undertook suggested IM’s intellectual functioning was in the “extremely low” range. However he did not consider those results to be an accurate reflection of IM’s intellectual functioning because of his educational results.

  2. Dr Allnutt clinically evaluated IM on 21 August 2017 via an audio-visual connection. As the sentencing judge recorded at Judgment [193]: “IM told Dr Allnutt that he thought his interaction with Khalid was “weird”. He said, in effect, that he did not think that Khalid meant what was being discussed in at least some of their conversations. In terms of his association with firearms, IM told Dr Allnutt that he had photos taken of himself with a gun to “show off”. Dr Allnutt thought that IM manifested a “constellation of anxiety and depressive symptoms”. Dr Allnutt concluded that “based on his account, his involvement in the planning and preparation was naïve, he would have been vulnerable to having a naïve view, given his age.” In relation to his discussions with Khalid on 15 December 2014 IM told Dr Allnutt “there was talk about stuff like that [ie going overseas for jihad] but I thought it was like a lie, I was never serious about doing any terrorist act here”.

  3. Dr Tong conducted a psychological assessment of IM on 31 August 2017. That assessment included “structured and unstructured clinical interviews and mental health screening and standardised cognitive screening”. At the time of that assessment, IM was aged 16 years and 11 months. The history he gave Dr Tong included:

I met those people at the Mosque. I regret everything I’ve done and now I know it was wrong. I was charged with firearms offences. I took a picture of my uncle’s hunting gun. The courts said that it didn’t happen. I was not going to do anything either way. I never thought anyone was going to do anything. I knew for sure I wasn’t going to do anything. I thought it was only talking about what was happening overseas, not here. I was being bullied at school and those people accepted me into their group. They were all older than me, all [aged] 18 and over.

… I heard about the news overseas they wanted to do an attack. I never thought it was serious. I thought they were talking like crap. I did say stuff. I just wanted to fit in. I thought it was a joke and I didn’t know I was doing anything wrong.

  1. On the basis of her clinical assessments Dr Tong considered that IM was functioning within the borderline range of cognitive capacity and concluded that his “impaired cognitive and social maturity will have deleteriously affected his ability to appreciate the seriousness and/or consequences of his actions”.

  2. Dr Woods interviewed IM on 25 September 2017, having been specifically requested to assess the extent to which he was “radicalised by older or otherwise influential” persons and if this did occur, whether IM “continues to hold extremist values”. As the sentencing judge records at Judgment [186], Dr Woods, in his executive summary, expresses the following views:

• Assessment of IM has revealed he was in all “forensic” probability targeted and groomed by the co-accused Sulayman Khalid…

…

• Based on a number of [IM’s] disclosures regarding his behaviour that is the subject of the matter that brings him before the Court … I believe there is good forensic reason to believe that he was largely engaged in adolescent fantasy at all material times and arising from this [gained] a vicarious level of excitement.

• Administration of reliable protocols… reveals IM was never radicalised and that he now rejects such values

  1. Dr Woods disagreed with Dr Tong’s opinion that “IM suffers from a significant level of cognitive impairment”. Dr Woods recorded IM’s descriptions of his relationship with Khalid which included going to his home where:

… a) he met various other young people (including certain other co-accused) older than himself, b) Mr Khalid’s mother prepared meals which the group shared and c) the group would talk about various things but frequently revolved around innocent persons in the Middle East being killed and/or generally suffering.

  1. Based on these disclosures, Dr Woods considered it “appears highly probable that [IM] had been ‘targeted’ and was being ‘groomed’ and that by late 2014, he had come to feel trapped and feared that a terrorist incident might occur, thus causing him to become increasingly fearful and anxious”.

  2. Having concluded – on the basis of IM’s responses to an assessment “tool” described by the acronym SAVRY and directed to assessing “violent offending risk in children and adolescents” – that IM does not hold “any core support for terrorist and/or other forms of extreme anti-social doctrines”, Dr Woods gave the following somewhat qualified answer to the question whether IM was radicalised; and in doing so made no reference to or assessment of IM’s conduct as described in the agreed facts.

…I believe IM was influenced, but never genuinely radicalised; the risk of him ultimately becoming genuinely radicalised (ie progressing from fantast based behaviour to actual behaviour) can be viewed as moderately high. The primary factor that would have [and] indeed likely did protect him from this being the values instilled by his immediate and extended family.

  1. In support of his view that IM was involved in “fantast based behaviour”, Dr Woods noted that:

IM acknowledged having gained a sense of increased self-worth in response to the compliments and attention shown to him by Mr Khalid. He also acknowledges having gained vicarious thrill satisfaction from engaging from what he asserts to have been “talking shit” about things he reportedly believed would have actually eventuated.

Further evidence on resentence

  1. On the resentencing by this Court, there is evidence as to IM’s high school academic results achieved at the Sydney Distance Education High School. That evidence is relied on as indicating IM’s progress towards rehabilitation in the period since the sentence hearing (cf Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25). His Year 11 course results indicate that he is a capable student who is achieving good results, working fairly consistently and displaying good skills, particularly in English and Community and Family Studies.

Commonwealth sentencing principles

  1. In trying and convicting IM, the sentencing judge was exercising federal jurisdiction conferred by Judiciary Act 1903 (Cth), s 68(2). In relation to the exercise of that jurisdiction, s 68(1) picked up and applied as federal law the laws of New South Wales applicable to IM’s “trial and conviction on indictment” and “the hearing and determination of appeals arising out of any such trial or conviction so far as they are applicable” to “persons who are charged with offences against the laws of the Commonwealth”; and Judiciary Act, s 79(1) picked up and applied as federal law the laws of New South Wales relating to “procedure, evidence and the competency of witnesses”, “except as otherwise provided by the Constitution or the laws of the Commonwealth”. The effect of these provisions is that a New South Wales law of the kind described in ss 68(1) or 79(1) is not applied as federal law if “a Commonwealth law expressly or by implication [makes] contrary provision”: see Putland v R (2004) 218 CLR 174 at [7] (Gleeson CJ); [2004] HCA 8; Bui v DPP (2012) 244 CLR 638 at [25] (French CJ, Gummow, Hayne, Kiefel and Bell JJ); [2012] HCA 1.

  2. In relation to the sentencing of IM, the immediately relevant Commonwealth law is Crimes Act (Cth), Pt 1B – Sentencing, imprisonment and release of federal offenders – and in particular s 16A(1) which requires that in sentencing for a federal offence, “a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”; and s 16A(2) which requires the court to take into account each of a series of matters “as are relevant and known to the court”.

  3. It is established that by the generality of the language of subsection (1) the Parliament intended “that the sentencing principles developed at common law, rather than the various provisions in state legislation, should apply to sentencing for Commonwealth offences”. They include the fundamental principle of proportionality which requires that a sentence should not exceed what is proportionate to the gravity of the crime: Lodhi v The Queen [2007] NSWCCA 360 at [81]-[82] (Spigelman CJ); (2007) 179 A Crim R 470, citing Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 472 (Mason CJ, Brennan, Dawson and Toohey JJ). In Putland the Court also made clear that Pt 1B does not set out a code for the sentencing of federal offenders so as to render State law inapplicable: see the analysis in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [46] ff (Allsop P); [2010] NSWCCA 194.

  4. In addition, because the offence of which IM was convicted is a terrorism offence, Crimes Act (Cth), s 19AG(2) requires that the court fix a single non-parole period, which for that offence is to be at least three-quarters of the head sentence imposed.

  5. Finally, although the effect of Crimes Act (Cth), s 20C is that IM could be sentenced as if his offence was one against a law of New South Wales, it is accepted in view of the nature of IM’s offence that a term of imprisonment is the only appropriate sentence. Nevertheless in sentencing IM this Court is required to have regard to the principles in Children (Criminal Proceedings) Act, s 6, and in particular the principles in paragraphs (b), (e), (g) which, as the sentencing judge observed at Judgment [20], reflect common law principles governing the sentencing of young offenders, as to which see KT v R [2008] NSWCCA 51; (2008) A Crim R 112 at [22] – [26] (McClellan CJ at CL).

Sentencing analysis

  1. The principle of proportionality provides, as is already noted, that a sentence should be proportionate to the gravity or seriousness of the offence: Veen v The Queen(No 2) at 472 (Mason CJ, Brennan, Dawson and Toohey JJ). The “appropriate” proportionate sentence must take account of the circumstances relating to the objective seriousness of the offence, as well as any material subjective factors concerning the offender’s personal circumstances, which may exacerbate or mitigate the overall gravity of the offence.

Assessing the seriousness of terrorist offences

  1. As a five member bench of the English Court of Appeal said in R v Kahar [2016] 1 WLR 3156 at [15] terrorist offences involve conduct which threatens “democratic government and the security of the state” and accordingly “has a seriousness all of its own”; and in relation to such conduct, offences involving an intended threat to human life are the most serious.

  2. IM undertook with his co-conspirators to do acts in preparation and planning for a terrorist act or acts. The nature of the act or acts and the proposed target or targets were not finally resolved. However the act was to involve firearms, and to be a religiously inspired act of terrorism, such as the killing of a member or members of either the New South Wales Police Force or the Australian Federal Police and/or an attack upon a government building or buildings. Part of his role in the conspiracy included IM locating and securing four firearms at his uncle’s house. He also engaged in a significant number of intercepted SMS and telephone conversations with Khalid. Those conversations were conducted by IM using a telephone subscribed in a false name, and “coded” language when referring to firearms and subjects such as the date of any proposed terrorist attack. In the course of those telephone conversations IM indicated a strong desire to engage in a terrorist act and expressed an aspiration for martyrdom. At the same time, he urged that a terrorist act be undertaken in Australia and stated that he wanted to engage in an act of joint martyrdom with Khalid. In this respect, reference need only be made to paras 21 to 24, 41 and 59 of the statement of agreed facts, extracted in [25] above.

  3. The terms of those communications and the extremist material found in IM’s possession during a search of his parents’ home on 18 December 2014 confirm, as the agreed facts record, that he was an adherent “to the religious ideology of violent jihad”. That material is described in paras [8] and [9] of those agreed facts.

  4. It is not to the point that the precise act or acts of terrorism and their timing had not been resolved. As Whealy J observed in R v Lodhi [2006] NSWSC 691 at [51]; 199 FLR 364 in the course of addressing the objective seriousness of conduct which was said to be “at a very early stage of any terror-related enterprise”:

… the legislation under which these offences has been created was specifically set up to intercept and prevent a terrorist act at a very early or preparatory stage, long before it would be likely to culminate in the destruction of property and the death of innocent people. The very purpose of the legislation is to interrupt the preparatory stages leading to the engagement in a terrorist act so as to frustrate its ultimate commission. An evaluation of the criminal culpability involved in any particular offence requires an analysis not only of the act itself, which may be relatively innocuous, but as well an examination of the nature of the terrorist act contemplated, particularly in the light of the intentions or state of mind of the person found to have committed the offence.

  1. An observation to the same effect was made by the Court of Appeal of Victoria (Warren CJ, Weinberg and Kaye JJA) in Director of Public Prosecutions (Cth) v MHK (2017) 52 VR 272 at [48]; [2017] VSCA 157, citing in turn the earlier statement of that Court in Fattal v The Queen [2013] VSCA 276 at [165] (Buchanan AP, Nettle and Tate JJA).

The principal factors relevant to sentencing for terrorist offences

  1. In this case the two matters which assume the greatest significance are the fact that IM was only 14 years and 2 months old at the time of the offending and that the offending involves his participation in a serious terrorist offence. In his reasons rejecting the sentence appeal in Lodhi v The Queen, at [89] Spigelman CJ cited with approval the statement of Lord Bingham in R v Martin [1999] 1 Cr App R (S) 477 at 480 that: “In passing sentence for the most serious terrorist offences, the object of the Court will be to punish, deter and incapacitate; rehabilitation is likely to play a minor (if any) part”. The Chief Justice then explained that in this context the element of “incapacitation” should be understood as encompassed by the element of “protection of the community”, recognised as a separate matter to be taken into account by the High Court in Veen (No 2) at 473, 476-477.

  2. Referring to that analysis and the earlier judgment of Crockett J (Murray and Hampel JJ agreeing) in R v Sakr (1987) 31 A Crim R 444 at 451, the Court of Appeal in MHK observed at [51] that it was not surprising that “in cases involving terrorist offences, and preparation to commit terrorist acts, the principles of general deterrence, and protection of the community, are given substantial, if not primary, weight.”

  3. There is a question as to the significance which the principle of deterrence, both general and specific, should have when sentencing for terrorist offences where the force of an ideological or religious motive may be such that deterrence is unlikely to work. In Lodhi v The Queen, Spigelman CJ (at [88]) ventured that in such a context the element of protection of the community is entitled to greater weight than may otherwise be appropriate, taking account of any lesser significance of general and specific deterrence. However in MHK at [53], the Court rejected an argument that in the face of terrorist acts, in which the offender will or is likely to be killed, general deterrence should be given lesser weight. It did so considering that in such a case there remains a need for general deterrence so that those planning to commit such acts appreciate that if they are apprehended in the process of doing so they will forfeit their liberty for a lengthy period of time. Furthermore, and consistently with the position taken in Lodhi v The Queen, the Court stressed at [54] the significance in such cases of the elements of protection of the community and incapacitation of the offender as matters to be considered separately from general deterrence, noting that persons who commit such offences “ordinarily only desist from doing so because they are apprehended. As such, at the time of their apprehension, they are, a fortiori, persons who pose a very real danger to the community”.

  4. Because of the significance given to punishment, general deterrence and protection of the community in cases involving terrorist offences, mitigating factors such as the youth of the offender and prospects of rehabilitation are given much less weight in the face of those other factors, and especially the often overwhelming need for general deterrence and the protection of the community. In Lodhi v The Queen, Price J stated at [274] in a passage agreed in by Spigelman CJ at [109] and cited with approval in MHK at [55]:

Rehabilitation and personal circumstances should often be given very little weight in the case of an offender who is charged with a terrorism offence. A terrorism offence is an outrageous offence and greater weight is to be given to the protection of society, personal and general deterrence and retribution.

  1. The position is similar in relation to the youth of an offender, which in general is an important mitigating circumstance. As the Court observed in MHK at [56], an offender’s youth is “relevant to an assessment of the moral culpability of the offender, as the law recognises that the immaturity and impressionability of youth may be, and commonly is, an important contributing factor to the involvement of a young offender in the crime for which that offender is to be sentenced”. However the Court then acknowledged that these principles “need to be appropriately moderated where, as in a case such as this, the offender has been involved in serious and dangerous offending” at [57].

  2. In this State, and having regard to the principles of Children (Criminal Proceedings) Act, s 6, as explained by Latham J (Spigelman CJ and Hulme J agreeing) in IE v The Queen [2008] NSWCCA 70 at [16]; (2008) 183 A Crim R 150:

It is not the youth of an offender per se that justifies the amelioration of a sentence that would otherwise be imposed, in accordance with the common law principles underlying s 6 of the Children (Criminal Proceedings) Act (the Act). It is only where the circumstances of a particular juvenile offender and the circumstances of a particular offence indicate that general deterrence and retribution ought play a lesser role, that the principles are given their full expression: R v Voss [2003] NSWCCA 182. The greater the objective gravity of an offence, the less likely it is that retribution and general deterrence will cede to the interests of rehabilitation. Given the serious criminality inherent in these offences, together with the assessment of the applicant as an offender within the lower end of the medium to high risk of re-offending, there was little scope for the operation of the principles under the Act. [Emphasis added]

  1. The same point was made by Lee CJ at CL in R v Pham & Ly (1991) 55 A Crim R 128 at 135, in a passage cited with approval by McClellan CJ at CL in KT at [24]:

It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal courts function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes…

The objective seriousness of IM’s offending: s 16A(2)(a)

  1. The sentencing judge concluded, and I agree, that IM’s offending was “obviously serious”. The facts by reference to which he is to be sentenced are that he participated in the planning of proposed terrorist acts because it was his religious obligation to engage in violence in the interests of Islam, and that he did so believing that if he died in pursuing those acts he would become a martyr and be rewarded in paradise. He also accepts that the terrorist acts proposed included the killing of state or federal police and attacks on police or other government buildings. The forms of attack included using firearms, and in that respect, IM took possession of and posed for photographs with four weapons. In his intercepted telephone conversations with Khalid, he emphasised the need for “training” for any terrorist act and made clear that he stood ready “Allah willing” to participate in a terrorist attack using firearms in the expectation and with the desire that he and Khalid would die as martyrs together.

  2. Whilst the age difference between IM and Khalid cannot be ignored as irrelevant, the communications between them show that IM was prepared to encourage and initiate violent jihad and to die in doing so. In no obvious sense do the SMS messages and telephone conversations between IM and Khalid reveal the former as passive, overwhelmed, enthralled or intimidated. Nor are the agreed facts consistent with his not having taken seriously what was occurring, or with his believing that his co-conspirators were “talking like crap”. Nor are those facts consistent with his being engaged in some form of fantasy. In suggesting otherwise, the opinions of Dr Allnutt, Dr Tong and Dr Woods extracted above are to be rejected as based on statements of IM made after the event which are inconsistent with his statement of agreed facts tendered to the Court.

  3. Indeed in argument before this Court, IM’s senior counsel accepted that the Court should reject as incorrect, and as not reflecting the true position, IM’s statements to those doctors and the officers of Juvenile Justice to the effect that “he was joking at the time, that he wasn’t serious and didn’t want to support ISIS”. Rather it was submitted by counsel that the fact of IM’s having provided, two or three years after the event, those explanations for the conduct to which he had pleaded guilty was to be understood as his way of saying that “looking backwards he couldn’t understand how he had done what he did”. None of that denies either the seriousness of the offending or the fact that IM, notwithstanding his young age, was willingly participating and motivated by his professed belief in violent jihad and the rewards of martyrdom.

  4. It was submitted to this Court that the matters which mitigated the seriousness of IM’s participation included that the acts in which he was directly involved were limited, that he did little to advance the objective of the conspiracy and that he should be treated as an “enthusiastic” 14 year old taking a religious stance under the influence of his much older and more influential co-conspirators. Relying on the evidence of Dr Woods in particular, it was said to be probable that IM had been “targeted and groomed” by Khalid for the purpose of participating in a terrorist act. Like the sentencing judge, I am not persuaded that this description reflects the basis of or reason for IM’s participation in the admitted conspiracy, principally for the reasons outlined above which show willing and independent participation on his part.

  5. As the Court observed in MHK at [56] – [57], the principles which might otherwise apply in assessing an offender’s moral culpability must be moderated where he or she has been involved in serious and dangerous offending. That is particularly so in the present case where notwithstanding his age IM was readily able to participate in conduct of the kind proposed and where his doing so would have had precisely the same consequences for the victims of the relevant terrorist acts, irrespective of the ages of the perpetrators. On that view of the matter the conduct which IM engaged in was “adult like behaviour”, and involved serious criminality.

The plea of guilty: s 16A(2)(g)

  1. It is accepted that this Court is entitled to take the utilitarian value of IM’s plea into account. Here, the plea was entered on the first day of a proposed 6 week trial. As the Crown submits, that clearly limited the benefit of the plea, the prosecution still having fully to prepare the trial and the Court system fully to engage in conducting the 6 week trial. Nevertheless the plea removed the need for the trial to proceed, which involved considerable savings of time, expense and use of court resources. In the circumstances, a discount of 10% should be allowed for the late plea of guilty. As the Crown accepts, the plea was an acceptance by IM of responsibility for his crime, and consistent also with his contrition for what he had done. Those aspects of his plea I have taken into account below as part of his overall subjective case.

Contrition and prospects of rehabilitation: ss 16A(2)(f), (n)

  1. There is, as has already been observed, no direct evidence from IM as to his renouncement of the violent beliefs that the agreed facts confirm he held at the time of the offending. In MHK, the Court (at [68]) emphasised that “the fact the respondent was prepared to give evidence, and face cross-examination, on his plea, and in doing so, to renounce and denounce Islamic State, were significant mitigating circumstances”. That is not the case with IM. One is left in the position where the agreed facts show that IM adhered to the ideology of violent jihad, and was prepared at the time of his offending to act in accordance with that belief, and to become a martyr for that cause. Nevertheless as did the sentencing judge, I accept that IM’s prospects of rehabilitation are more favourable than not. He continues to have the very valuable support of his family who care about him. The likelihood is that with increased maturity will come a sense of responsibility, and awareness of the evil involved in his proposed conduct and the extremist beliefs and ideologies that motivated it. His recent school results suggest a developing maturity. In addition the Juvenile Justice Report provides support for the conclusion that IM may now understand and accept without qualification that what he did was seriously wrong.

Character, antecedents, age: s 16A(2)(m)

  1. I accept that some account must be taken of IM’s age and relevant immaturity, particularly when compared to his co-conspirators. As the discussion above shows, his immaturity and youth mitigates but cannot in any sense excuse his moral culpability for his offending. In assessing that culpability I am also conscious of the evidence of his anxiety and depression as described by Dr Jones and Dr Allnutt, which is likely to reflect an appreciation of his current, and disastrous, circumstances and role in bringing them about.

Personal and public deterrence: ss 16A(2)(j), (ja)

  1. Although IM appears now to accept responsibility for his offending substantial weight must be given to deterrence personal and general, and the protection of the community. That remains so notwithstanding the risk that such deterrence may not work in the face of the religious or ideological cause advanced.

Probable effect of sentence or order on IM’s family: s 16A(2)(p)

  1. The evidence of Dr Woods as well as her own statement confirms, as the sentencing judge found, that “the mental health of IM’s mother has been adversely affected as a consequence of the stress and anxiety arising from [his] current circumstances”. I have taken this matter into account as part of IM’s overall subjective case. However, it cannot significantly mitigate the sentence which should be imposed. My having done so makes it unnecessary to enter into the debate as to whether, notwithstanding the language of s 16A(2)(p), the party being sentenced is required to demonstrate “exceptional circumstances” before the Court may take this consideration into account: see R v Togias [2001] NSWCCA 522; (2001) 127 A Crim 23; and R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim 286; cf. R v Zerafa [2013] NSWCCA 222 at [139]ff (Beech-Jones J); (2013) 235 A Crim R 265.

Other factors

  1. As did the primary judge, I have also taken into account IM’s conditions of custody which are restrictive to some degree, but certainly not in the same way as the conditions of custody applying to the remaining offenders. I also note that between 14 January 2016 and 31 July 2017 IM spent a significant time subject to strict conditions of bail which curtailed his liberty. Finally I have had regard to the sentences imposed on IM’s co-conspirators, Khalid and Jibryl, taking account of their age differences and the circumstances of their participation in the conspiracy offence, as compared to those of IM.

Sentence to be imposed

  1. It is clear that no sentence other than one of imprisonment is appropriate and that a sentence with a finite term of years should be imposed. Notwithstanding IM’s age at the time of his offending, the objective seriousness of his offending requires that the principles of general and personal deterrence and protection of the community be given substantial weight. Taking the matters to which I have referred into account, a sentence of 12 years is an appropriate notional starting point. I propose that after allowing for a 10% discount (and rounding down) IM be sentenced to a term of imprisonment of 10 years and 9 months, that sentence commencing on 31 July 2017 and expiring on 30 April 2028. I specify a non-parole period of 8 years, commencing on 31 July 2017 and expiring on 30 July 2025. Accordingly the total sentence is one of imprisonment for 10 years and 9 months, commencing on 31 July 2017 and expiring on 30 April 2028 and IM will be eligible for release on parole on 30 July 2025.

Special Circumstances

  1. I am also satisfied that there are special circumstances within the meaning of s 19(4)(c) of the Children (Criminal Proceedings) Act. In this respect I agree with and adopt the reasoning of the sentencing judge at Judgment [21]. I therefore propose to order, pursuant to s 19(1) of that Act, that IM serve his sentence as a juvenile offender up to his attaining the age of 21 years on 12 September 2021.

Proposed orders

  1. Accordingly the orders I propose are:

  1. Set aside the sentencing and other orders made in respect of the offender IM on 3 November 2017 and identified by the letters (ii) to (vi).

  2. The offender IM is sentenced to imprisonment for a period of 10 years and 9 months, commencing on 31 July 2017 and expiring on 30 April 2028.

  3. Specify a non-parole period of 8 years commencing on 31 July 2017 and expiring on 30 July 2025.

  4. The total sentence is one of imprisonment for 10 years and 9 months commencing on 31 July 2017 and expiring on 30 April 2028, and the offender IM will be eligible for release on parole on 30 July 2025.

  5. Pursuant to s 19(1) of the Children (Criminal Proceedings) Act, order that this sentence be served by IM as a juvenile offender up to his attaining the age of 21 years on 12 September 2021.

  6. Pursuant to s 105C of the Criminal Code, warn the offender that an application may be made for a continuing detention order requiring him to be detained after the completion of his sentence.

  1. R A HULME J: I agree with Meagher JA.

  2. BUTTON J: I agree with Meagher JA.

**********

Decision last updated: 24 May 2019

Most Recent Citation
Cases Citing This Decision

16

R v Uweinat [2021] NSWSC 1256
R v Uweinat [2021] NSWSC 1256
High Court Bulletin [2020] HCAB 9
Cases Cited

33

Statutory Material Cited

7

Tyler v R; R v Chalmers [2007] NSWCCA 247
Xiao v R [2018] NSWCCA 4
Xiao v R [2018] NSWCCA 4