K v Children's Court of Victoria
[2015] VSC 645
•18 November 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 03454
| K | Plaintiff |
| v | |
| CHILDREN’S COURT OF VICTORIA | First defendant |
| and | |
| FEDERAL AGENT MATTHEW COURT | Second defendant |
---
JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 October 2015 |
DATE OF JUDGMENT: | 18 November 2015 |
CASE MAY BE CITED AS: | K v Children’s Court of Victoria & Anor |
MEDIUM NEUTRAL CITATION: | [2015] VSC 645 |
---
ADMINISTRATIVE LAW – Judicial review of a decision by the Children’s Court of Victoria – Commonwealth terrorism offences alleged against a minor – Wednesbury unreasonableness – Li unreasonableness – Review of decision to uplift matter to Supreme Court – Exceptional circumstances – Children, Youth and Families Act 2005 (Vic) – Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Richter QC Ms G Morgan | Stary Norton Halphen |
| For the First Defendant | No appearance | |
| For the Second Defendant | Mr D Gurvich | Commonwealth Office of Public Prosecutions |
HIS HONOUR:
Introduction
The plaintiff in this matter is a child who was born on 10 February 1998.
On 8 May 2015, when he was 17 years and 3 months old, he was charged with:
(a) engaging in an act of preparation for or planning a terrorist act, contrary to s 101.6 of the Criminal Code scheduled to the Criminal Code Act 1995 (Cth) (‘the Criminal Code’); and
(b) possession of things connected with a terrorist act, contrary to s 101.4 of the Criminal Code.
On 21 May 2015 he was charged with a further offence of:
(c) failing to comply with an order under s 3LA(2) of the Crimes Act 1914 (Cth) contrary to s 3LA(5) of that Act.
Collectively ‘the charges’.
These charges came before the Children’s Court of Victoria on 1 June 2015. Following an application made on behalf of the second defendant, Judge Couzens ruled, pursuant to s 356 of Children, Youth and Families Act2005 (Vic) (‘the CYFA’), that exceptional circumstances required the charges proceed by way of committal hearing (‘the order’).
The plaintiff brings these proceedings under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 for judicial review of the order made by the Children’s Court to decline to hear the charges summarily. The plaintiff contends that the impugned order was affected by an error of law made by the first defendant (the Children’s Court of Victoria). He further contends that the order should be quashed or set aside by an order in the nature of certiorari and that the matter ought be remitted to the Children’s Court to be further dealt with. In a letter to the Court, the first defendant, following usual practice, declined to appear and stated it would abide by this Court’s decision.
Circumstances of the alleged offending
On 8 May 2015, members of the Australian Federal Police (‘the AFP’) and Victoria Police attended the plaintiff’s family home and arrested him. In a subsequent search of the premises, officers of the Joint Counter Terrorism Team located:
(a) powder later found to be a mix of ground match heads and sugar;
(b) plastic container containing nails;
(c) Christmas tree lighting trimmed to contain a single bulb;
(d) three elbow shaped lengths of pipe with caps fitted suspected at the time of search to be completed pipe bombs;
(d) four elbow shaped lengths of pipe and eight caps not fitted together;
(e) three boxes of screws;
(f) pressure cookers;
(g) pieces of intertwined wire;
(h) an ANTEC Brand computer tower (‘the computer’); and
(i) notebooks containing letters or journal entries apparently written by the plaintiff.
A mobile phone in the plaintiff’s possession at the time of his arrest was also seized (‘the mobile phone’).
Following an initial examination, the Victoria Police Bomb Squad deemed the three elbow shaped lengths of pipe with caps fitted too dangerous for further examination. The items were removed from the premises and destroyed in a controlled explosion.
In cross-examination at the hearing of the second defendant’s application to uplift, the informant conceded that these three items were not completed improvised explosive devices (‘IEDs’) and that a number of mechanical steps would have been required before these could be used for that purpose, including drilling a hole in each of the pipes.
An AFP Technical and Forensic Intelligence assessment of the remaining items reported that it was likely that at the time of the plaintiff’s arrest he was part way through the construction of IEDs. Specifically, the report stated that it was likely the plaintiff was constructing ‘elbow joint pipe’ type IEDs and possibly pressure cooker type IEDs.
Analysis of the computer (seized from the plaintiff’s bedroom) and the mobile phone (in the plaintiff’s possession at the time of his arrest) revealed that the devices had been used to view an Islamic State (IS) propaganda magazine and website. A number of files stored on the computer were encrypted by TrueCrypt software.
When served with a s 3LA order compelling his assistance in viewing the encrypted files, the plaintiff told police that he was unable to recall the password required to open the documents.[1] The second defendant alleges the plaintiff’s claim in this respect is false. AFP Digital Forensics ultimately uncovered the password of the encrypted files, revealing documents titled ‘Pressure Cooker Backpack Bomb with Switch Detonator’ and ‘Make a bomb in the kitchen of your Mom’. These documents set out in detail the materials and procedure required to prepare elbow pipe and pressure cooker type IEDs.
[1]This act gives rise to the offence of failing to comply with an order of a magistrate to provide information or assistance to access data held in a computer contrary to s 3LA(5) of the Crimes Act1914 (Cth).
The second defendant’s materials include messages apparently emanating from the plaintiff’s Facebook account and letters or journal entries found in notebooks seized from the plaintiff’s home, which are alleged to demonstrate that the plaintiff held extreme political and or religious views. The second defendant further alleges that the seized and destroyed items are the constituents of IEDs, partially assembled by the plaintiff in preparation for and connected with a terrorist act.[2]
[2]The ss 101.6 and 101.4 of the Criminal Code offences.
The legislation
The CYFA provides that if a child is charged with an indictable offence, other than murder, attempted murder, manslaughter, child homicide, an offence against s 197A of the Crimes Act 1958 (Vic) (arson causing death) or an offence against s 318 of the Crimes Act 1958 (culpable driving causing death) (‘the excluded offences’), the Children’s Court must hear and determine the charge summarily unless either:
(a) before the hearing of any evidence the child objects; or
(b) at any stage the Court considers that the charge is unsuitable by reason of exceptional circumstances to be determined summarily.[3]
[3]Children, Youth and Families Act 2005 (Vic) s 356(3).
A charge that is not heard summarily by reason of s 356(3)(b) must proceed to committal.
As I have described, the Children’s Court directed that the charges proceed to committal. The judge provided reasons for his decision as required by the CYFA.[4] Transcripts of the hearing and the reasons for decision were provided to this Court and relied upon by both the plaintiff and defendant at the hearing of this O 56 application.
[4]Children, Youth and Families Act 2005 (Vic) s 356(3)
The parties’ contentions on the present application
The plaintiff’s submissions
The plaintiff’s written submissions outlined two grounds for review. The first of these was separated into five sub-groups which were purported to identify errors of law; the second was described as error of law on the basis that ‘no reasonable decision maker, acting within jurisdiction and according to law, could have made such a decision’. In oral submission, senior counsel for the plaintiff clarified that the five aspects outlined in the first ground were, in fact, argued as factors indicative of the unreasonableness contended by second ground. The plaintiff’s position was argued as follows:
(a) It was not open to the Children’s Court to find ‘exceptional circumstances’ on the facts available to it at the time, and thus no reasonable decision maker could have come to such a conclusion;[5] and/or
(b) the judge’s finding of exceptional circumstances was unreasonable on the basis that it lacked an evident or intelligible justification.[6]
[5]See Associated Provincial Picture Houses Ltd vWednesbury Corporation [1948] 1 KB 223.
[6]See Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 364–365 [68]–[71] (Hayne, Kiefel and Bell JJ). See also DPP v Cartwright [2015] VSCA 11, [33]–[34] (Priest JA with Weinberg and Beach JJA agreeing).
The plaintiff contends that because ss 101.6 and 101.4 of the Criminal Code are not listed amongst the s 356 excluded offences, it is indicative of a legislative intention for these offences ordinarily to be heard summarily when the alleged offender is a child. ‘Exceptional circumstances’, therefore, exist only where the purported facts and surrounding circumstances of the alleged offending separate it in a way that is special and exceptional from an ‘ordinary example’ of offending that might attract a ss 101.6 or 101.4 charge: specifically, the fact that such a charge is before the court cannot in itself be considered exceptional.
With regard to the most serious of the charges, it was submitted that K’s alleged offending was not an exceptional or ‘top of the range’ example of a s 101.6 offence. The items found beneath K’s bed were not completed IEDs: multiple mechanical steps would be required to make these items into functioning bombs. The second defendant has not put forward any evidence of the involvement of any other person, nor of a specific plan to detonate IEDs.
Further, the antecedents of the alleged offending militate against a finding of exceptional circumstances. Not only does K have no criminal record, he had never come to police attention prior to the investigation leading to the charges; further, K has a supportive family network and is of at least average intelligence.
Counsel for the plaintiff accepted, first at the Children’s Court in response to the application to uplift, and then again at this Court, that the sentencing considerations prescribed by the CYFA in s 362[7] must be central to the reasoning process of any judge or magistrate who is required to assess whether ‘exceptional circumstances’ exist. To this end, Counsel noted that no information had yet been provided to the Children’s Court regarding de-radicalisation programs that might be available to K, or expert prognoses on K’s prospects of de-radicalisation. Such material may have been available to the Children’s Court at a later stage of proceedings and an assessment of exceptional circumstances could have been made subsequent to consideration of that material. On the current facts, the plaintiff argues, the Children’s Court could not reasonably have made a finding of exceptional circumstances.
[7]Section 362(1) of the CYFA specifies that in determining which sentence to impose on a child, Children’s Court must, as far as practicable, have regard to “the need to strengthen and preserve the relationship between the child and the child’s family; the desirability of allowing the child to live at home; the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; the need to minimize the stigma to the child resulting from a court determination; the suitability of the sentence to the child; if appropriate, the need to ensure the child is aware that he or she must bear a responsibility for any action by him or her against the law; and, if appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.”
Additionally or in the alternative, the plaintiff argued that his Honour’s decision lacked an evident or intelligible justification in that his reasons merely set out the alleged offending and gave no explanation as to why this was considered exceptional or ‘top of the range’, or why the surrounding circumstances might render the charges exceptional in K’s case.
The second defendant’s submissions
In response, the second defendant contended that, in its finding of exceptional circumstances, the Children’s Court took into account all that it should and nothing that it should not. The reasons for decision addressed both factors that contributed to this finding, and those which militated against it. Matters were considered in the context of the scheme and nature of the Children’s Court jurisdiction and the CYFA. The maximum penalties attracted by ss 101.4 and 101.6 offences outside of the Children’s Court were mentioned in the context of the seriousness of the offending, but this was merely one consideration amongst many outlined by the judge.
The second defendant further contended that offences under s 101.6 embrace a wide range of preparatory conduct – the legislation is designed to ‘strike early’. In oral submission, counsel for the second defendant described the alleged offending of the plaintiff as ‘at a reasonably advanced stage’. On the facts before the Children’s Court, the second defendant submitted, it was reasonably open to find that exceptional circumstances required the charges to be uplifted. The exceptional circumstance identified by the judge was that the Children’s Court’s sentencing jurisdiction may be insufficient to appropriately sentence the plaintiff were he to plead or be found guilty of the charges. This did not lack an evident or intelligible justification.
Legal principals of judicial review
In this proceeding the plaintiff is seeking to invoke the Court’s supervisory jurisdiction. This is not an appellate procedure ‘enabling either a general review of the order or decision of the inferior court…or a substitute of the order or decision which the superior court thinks should have been made.’[8] Should the writ run ‘it merely establishes the quashing of the impugned order or decision upon one or more of a number of distinct, established grounds, most importantly jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record”.’[9]
[8]Craig v South Australia (1995) 184 CLR 163, 175.
[9]Ibid 175 - 176.
Judicial review is not a review on the merits. If unreasonableness is alleged the party alleging the same assumes the burden of demonstrating that no reasonable judge (or decision-maker) could have reached the impugned decision.[10] Unreasonableness would also be demonstrated if the decision lacks an evident and intelligible justification.[11] In this context, the standard of legal reasonableness cannot involve substituting a superior court’s view as to how a discretion should be exercised.[12]
[10]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 233.
[11]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 364–365 [68]–[71] (Hayne, Kiefel and Bell JJ). See also DPP v Cartwright [2015] VSCA 11, [33]–[34] (Priest JA with Weinberg and Beach JJA agreeing).
[12]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 363 [66] (Hayne, Kiefel and Bell JJ).
Despite this, in the traditionally formalist judicial review framework, the ground of ‘unreasonableness’ is comparatively substantive. A reviewing court, when considering the reasonableness of an exercise of discretion, must assess the substantive decision, and arguably the decision maker’s reasoning process, in the context of the subject matter, scope and purpose of the legislation under which that discretion is conferred.[13] The temptation to verge into the merits is thus difficult to resist, as the plaintiff demonstrated in the first ground of written submissions.
[13] See Minister for Immigration and Citizenship v Li (2013) 249 CLR 223, 347-348 [22] (French CJ).
‘Exceptional circumstances’
The Children’s Court has considered the meaning of ‘exceptional circumstances’ in the context of s 356 of the CYFA in various matters. The issue has come before both this Court and the Court of Appeal. Relevant principles that can be extracted from these cases include:
(a) the Children’s Court should relinquish its embracive jurisdiction only with great reluctance;[14]
[14]See for example D (A child) v White [1988] VR 87, 93; A Child v A Magistrate of the Children’s Court (Unreported, Supreme Court of Victoria, Cummins J, 24 February 1992) 11.
(b) the gravity of the conduct and the role ascribed to the accused are important matters but are not the only factors to be considered;[15]
[15]D (a Child) v White [1988] VR 87, 93.
(c) other factors for consideration may include the maturity of the offender, the degree of planning or its complexity, and the antecedents of the alleged offender or particular features peculiar to him or her;[16]
[16]Ibid.
(d) the most important criterion is the overall administration of justice – that is, justice as it affects the community as well as the individual;[17]
(e) the nature of the evidence to be called may render a matter unsuitable for summary determination – evidence about political motivation, or forensic or scientific evidence, may fall within this class;[18]
(f) ‘exceptional’, in this statutory context means more than special, it means very unusual.[19]
[17]Ibid.
[18]Ibid.
[19]See A Child v A Magistrate of the Children’s Court (Unreported, Supreme Court of Victoria, Cummins J, 24 February 1992) 9. Notably his Honour in that case considered the application to uplift charges under s 134(3)(b) of the Children and Young Persons Act 1989 which was the relevant explanation at the time. That provision read identically to s 356(3)(b) of the Children, Youth and Families Act 2005 save that the ‘excluded offences’ in the 1989 Act were limited to ‘homicide’.
The authorities resound that each case of ‘exceptional circumstances’ must be determined on its own facts.[20] I note that this is not only the first case of alleged terrorism offences to be uplifted, but is in fact the first instance of a child charged with ss 101.4 or s 101.6 terrorism offences before a Victorian court. Historical analysis of the facts of alleged offending in matters uplifted is thus of limited assistance to this proceeding.
[20]See for example C v Children’s Court of Victoria [2015] VSC 40, [38]; DL (a minor by his litigation guardian) v A Magistrate of the Children’s Court (Unreported, Supreme Court of Victoria, Vincent J, 9 August 1994) 2.
The original decision of the Children’s Court
I do not propose to set out large tracts of the original decision. I have annexed the transcribed text of the reasons for decision, which were delivered orally, to this ruling. In my view, a fair reading of that decision discloses the following:
(a) A central issue was whether the sentencing constraints of the Children’s Court jurisdiction would be sufficient to deal with the alleged offending. Would the three year maximum be sufficient?[21] The judge concluded that the sentencing jurisdiction of the Children’s Court would be inadequate.
[21]Transcript of Proceedings, Re The Police v K (Children’s Court of Victoria, Judge Couzens, 1 June 2015) 61 (‘Transcript’).
(b) His Honour set out in detail the submissions of both parties. In so doing, he set out the full factual background to the alleged offending, and the matters that might be put in support of the plaintiff, including factors that went to mitigation.
He concluded that the combination of the following factors demonstrated exceptional circumstances:
(i) the s 101.6 charge carried with it a maximum penalty of life imprisonment;
(ii) the gravity of the offending must be assessed by reference to its factual context;
(iii) K had accessed material provided by a terrorist organisation, including material instructing the construction of IEDs;
(iv) K possessed either all or nearly all of the materials required for the production of IEDs;
(v) K’s notes and Facebook postings indicated a degree of radicalisation;
(vi) K appeared to have engaged in a significant degree of planning towards the construction of IEDs;
(vii) K was (and is) a child, but was less than 12 months off his 18th birthday (and thus being amenable to adult court jurisdiction); and
(viii) whilst K lacked an antecedent criminal history, there appeared to be past expressions of apparent pro-jihadist, ISIS supportive sentiments.
Analysis
It can be seen that, in substance, his Honour’s conclusion was that the Children’s Court lacked adequate sentencing jurisdiction to deal justly with the plaintiff. The factors that I have referred to above in paragraph [28] (a) and (b) comprise the factual and legal basis for this conclusion. Having reached this conclusion, his Honour further concluded that exceptional circumstances had been demonstrated.
For the plaintiff’s application to succeed, I must be satisfied that the original finding was either:
(a)so unreasonable that no reasonable judge could have reached it; or
(b)lacking in an evident and intelligible justification.
I am not satisfied of unreasonableness to either of these standards.[22] I shall endeavour to set out my reasons for this conclusion.
[22]The plaintiff did not contend either that his Honour took into account irrelevant considerations or that he failed to take into account relevant considerations.
The finding of exceptional circumstances imports a discretionary value judgment.[23] The Court is required to undertake a nuanced consideration of the factors of the alleged offending, the antecedents of the accused child, the statutorily enshrined values of the Children’s Court and the sentencing jurisdiction and considerations of that Court. Each case is unique and will be determined on its own facts.
[23]R and M v IBAC [2015] VSC 374, [106]-[111].
It is settled law that inadequacy of the Children’s Court sentencing jurisdiction constitutes, in itself, an exceptional circumstance which would justify uplifting the impugned matter to a higher court.[24] At the hearing of the current application, senior counsel for the plaintiff accepted this to be so.
[24]DPP v Anderson (2013) 228 A Crim R 128.
The thrust of the plaintiff’s argument is as follows:
(a) Parliament must have intended that Commonwealth terrorism offences allegedly committed by children, prima facie, be dealt with by the Children’s Court with all the sentencing limitations that that involves.
(b) There must therefore be something about the offending or the circumstances of the offender which would justify the conclusion that exceptional circumstances exist such as to uplift the matter to a higher court.
(c) In this case, there was no prior criminal history and nothing about the alleged offender itself that could reasonably justify the conclusion of exceptional circumstances.
(d) Where a child lacks or has very limited antecedents militating against summary hearing exceptional circumstances will only exist where ‘top of the range’ offending is alleged. In this case, the offending is not at that level.
I do not accept that (absent militating antecedents) exceptional circumstances will only be demonstrated in ‘top of the range’ offending. It will vary from case to case. A 13 year old charged with a ‘top of the range’ intentionally causing injury offence will almost certainly be able to be sentenced within Children’s Court sentencing constraints. A 17 year old charged with a ‘top of the range’ intentionally causing serious injury may well not be able to be sentenced within those constraints. Each case will turn upon its own facts, and in each case the Children’s Court magistrate or judge will look at all the circumstances that surround both the offending and the alleged offender. And in this case, that is what his Honour did:
In my view, having regard to all the circumstances, three years, if this young man is found guilty of the offences, would not be sufficient.[25]
[25]Transcript 61.
I consider that it was not only open to his Honour to conclude that the relevant exceptional circumstances existed, the circumstances that I have set out at paragraphs [4]-[8] demanded that conclusion. The plaintiff has failed to demonstrate Wednesbury unreasonableness. Further, the comprehensive and conscientious reasons delivered by his Honour (set out in summary form at paragraph [28]) provide an evident and entirely intelligible justification for his decision.
For these reasons, the application is refused. I will hear the parties as to costs.
ANNEXURE
HIS HONOUR:
Today I have before me an application brought pursuant to s 356(3) (b) of the Children Youth and Families Act (the Act) to have charges brought against K uplifted to the Supreme Court. The application is opposed by Mr Richter who appears on behalf of the young man, who I will refer to as K throughout my decision.
K is charged with two breaches of the Commonwealth Criminal Code and one breach of a Commonwealth Crimes Act. With regard to the Criminal Code, he is charged that on or about 8 May 2015, in the State of Victoria, he engaged in an act in preparation for or planning a terrorist act contrary to s 106.1 of the Commonwealth Criminal Code. He is further charged under the Criminal Code that he possessed things connected with a terrorist act contrary to s 101.4 of the Criminal Code.
With regard to the Commonwealth Crimes Act 1914, he is charged that on or about 15 May 2015, at Parkville, in the State of Victoria, he failed to comply with an order under s 3LA(2) of the Crimes Act, contrary to s 3LA(5) of the Crimes Act. The maximum sentences applicable to each of the offences charged are as follows:
·Charge 1, acts done in preparation for or planning a terrorist act contrary to s 101.6 of the Criminal Code: life imprisonment.
·Charge 2, possessing things connected with a terrorist act contrary to s 101.4 of the Criminal Code: 15 years.
·Charge 3, failing to comply with an order of a magistrate to provide information or assistance to access data held in a computer contrary to s 3LA(5) of the Crimes Act 1914: two years' imprisonment.
Each of the offences is an indictable offence. K is 17 years of age, having been born on 18 February 1988. He lives with his family in Melbourne, with his father a doctor, his mother, his sister who is studying psychology, and a younger sibling who is at school. He has no prior matters for which he has been before the courts before. He was arrested on 8 May 2015 at his residence in Melbourne and has been held on remand since that date.
His arrest occurred in the circumstances described in the affidavit of the informant, Federal Agent Matthew Court, who I will refer to as the informant, the affidavit being sworn on 21 May 2015. Shortly after his arrest, officers of the Joint Counter Terrorism Team Melbourne Office commenced a search of the premises as authorised by a search warrant issued under s 3E of the Crimes Act 1914. In his affidavit, the informant lists items that were located in several locations of the premises.
In K’s bedroom, he deposes to finding the following items, or that the following items were found: (a) in a black computer desk, there was found a glass container containing red/pink-coloured powder which has been confirmed by forensic examination to be a mix of ground heads of matches and sugar; (2) a clear plastic container containing nails; (3) a length of Christmas tree lighting with green wire trimmed to contain a single bulb.
Further, under K’s bed there were found: (1) three elbow-shaped lengths of steel pipe with respective end caps fitted. According to the informant at the time he swore the affidavit, these pipes were suspected to be completed pipe bombs; (2) four elbow-shaped lengths of steel pipe with 18 caps not fitted, together with three boxes of screws. Also located in K’s bedroom was an Antec branded computer and receipts for the purchase of items suspected of being used to make improvised explosive devices, otherwise known as IEDs, including a receipt dated 28 April 2015 for the purchase of a six litre Milano brand pressure cooker purchased from Zoes Kitchen in the Broadmeadows Shopping Centre.
A receipt dated 4 May 2015 for the purchase of nails, screws, galvanized plumbing pipes and elbow joints which were purchased from Bunnings in Broadmeadows; (3) A receipt dated 6 May 2015 for the purchase of items, including screws, galvanized plumbing pipes and an elbow joint also purchased from Bunnings, and also a receipt dated 6 May 2015 for the purchase of multi-coloured fairy lights from House and Party in Broadmeadows Shopping Centre.
All of the items listed in the receipts, other than the Milano brand pressure cooker, were located in K’s bedroom or in a desk which was located in the garage with a key located in K's bedroom. In the kitchen, there were found two pressure cookers and a mortar and pestle, whilst in the garage area there was found a six litre Milano brand pressure cooker, and in the locked desk to which I have referred, the key to which was found in K’s bedroom, the following items were found: five pieces of intertwined wire, a blurred brown tissue box containing a number of scraped matches, match boxes, a dirty white tissue, two pieces of torn Red Head Matches wrappings and an open packet of Kinetic Standard Teflon tape.
In addition to those items, a phone which is said to belong to the young man K was found. It was a Samsung Galaxy mobile phone which was found in K’s possession and was seized and examined. Details of the results of the initial review of the phone revealed in the informant's affidavit in paragraph 23. I will refer to not all of those items but some of them.
Amongst the items that were found on the initial view, the contacts, the call logs, various short messages service, and multimedia messaging service communications which were stored, the internet and browser history, deleted and recovered images previously stored on the SD card, including images of a pressure cooker in a plastic weave store bag, two forms of pink powder, a box containing small Christmas light globes, and an application to encrypt communications and files identified as TrueCrypt.
TrueCrypt is explained in paragraph 24 of the informant's affidavit as a secure file management and military grade encryption system which required a password to enter. Further examination of K’s mobile phone had subsequently identified two 3,283 items in the Google search history, which included the matters referred to in paragraph 25 of the informant's affidavit. Items consistent with components used to manufacture IEDs, reference to AQAP, Al-Qaeda Arabian Peninsula, ANZAC Day, steel pallets, sparklers, seek festivals and festivals, how to grind fine powders, how to secure Android from surveillance, time in Syria, time in Raqqa described as an Al-Raqqah, is a declared area in Syria controlled by ISIS, kitchenware, Zoes Kitchen, Man Haran Manis, the person associated with the Lindt Cafe siege in Sydney, and another item referred to described as “hating the kafir”.
Further analysis of the phone indicated that Dabiq 6 was viewed using Adobe on K's mobile phone. Dabiq 6 is described as an Islamic State propaganda machine. Issue 6 contains details of an attack carried out by a man, Haron Monis, and encourages further attacks as carried out by Monis and Numan Haider, stating on page 4, “There will be others who follow the example of Man Haron Monis and Numan Haider in Australia: Martin Couture-Rouleau and Michael Zehaf-Bibeau in Canada, Zale Thompson in America, and Bertrand Nzohabonayo in France, and all of the west will be able to do is anxiously await the next round of slaughter and then issue the same type of cliche statements in condemnation of it when it occurs. Muslims will continue to fight the Kafir war machine thanking the crusaders on their own streets and bringing the war back on their own soil.”
A future review of the Antec tower by AFP digital forensics revealed the following. On 6 April 2015, the computer was used to view isdarat.org. The website is an ISIS propaganda website, and includes video footage of persons identified as being members of the terror organisation. The affidavit further goes on to say that, “The application of TrueCrypt is installed on the computer. It is a program designed to encrypt files which cannot be viewed without the password.”
In his affidavit, the informant describes an inability to access that program without obtaining a password from K. Steps were taken for that to occur, and those steps were unsuccessful. Since then, however, forensic personnel have been able to enter into the system and to download documentation which was contained within it. That documentation included two documents, one headed Pressure Cooker backpack bomb with switch detonator, and the other entitled Make a bomb in the kitchen of your Mum.
My understanding is that each of those publications which are written in English are produced by an Al-Qaeda organisation, and my understanding is this applies to both of those documents. I will not refer in detail to the contents of each of those documents, save to say that they clearly set out the means by which both pipe bombs and pressure cooker bombs can be manufactured. It takes the reader step by step as to what ingredients to acquire and how to use those ingredients to manufacture one or other or both of those devices.
In general terms, the items discovered at the search of K’s premises confirmed that many of the items that one finds within those documents were located at the house.
The document Pressure cooker backpack bomb with switch detonator also has attached to it a modus operandi designed to assist those interested to acquire the items in the less obvious ways. It sets out the various items that are needed, including, “A pressure cooker, inflammable substance (substance found in match sticks, fireworks or gun powder, sugar, decoration lamp, Christmas tree light, cord and switch, batteries, wires, tape, shrapnel, steel balls, ball bearings are the best, but if not available then next best alternative is steel nuts, bolts, and nails are good.)”
It also advises as to how to acquire those items under the heading Safety Tips, "Always pay with cash. Try to avoid big commercial stores. Don't act suspicious when buying items, be calm and casual. Don't ask stupid questions. Try to purchase things on the side to make the purchase look less suspicious.” The receipts to which I have referred in relation to the items acquired, many of the items acquired, indicate that it would appear that modus operandi has, to some extent, been put into effect: Bunnings on two occasions, a Christmas shop on another, and a kitchenware store on another.
The document Make a Bomb in the Kitchen of Your Mum contains not only details of how to construct both a pressure cooker bomb and a pipe bomb, but it also incorporates extreme pro-Islamic material, which can only be described as hate-filled. I make no further reference to those documents; they speak for themselves.
In addition, and since swearing his affidavit, the informant has been able to produce, as he did this morning, extracts from notebooks of K found at the premises. I will not refer to each of the notes that have been handed to me, save to say that some of them should be referred to for reasons that will appear obvious in terms of my reasons for my decision.
One of the notes translated is as follows, “I write this letter to whoever can hear and is wise, sane, this letter is from a soldier of the Islamic State and I say to you join this state and follow what Allah has commanded. Oh, Muslim, what is stopping you from going here? If you are an idle man or you have been seduced by the worldly life for you, there is severe torment. We have men who want to kill and be killed in the cause of Allah. Quit your studies and rise for jihad. There is no life without jihad. Those who turn people away from the path of jihad, for them, there is severe torment.”
This is another letter, "This is a letter I wrote to those who believed in Allah and his messenger. Haven't you heard what has been happening in the land al-Sham, Syria? Are you deaf or did Allah seal your hearts? Why don't you rise for jihad and for the victory of the Ummah. Oh, Muslims, haven’t you heard the call of your oppressed brothers and the voice of your sisters who are being raped? The Islamic State is calling you. Come to it and fight its enemies, the criminals. The Islamic State is a family to this Ummah, wider Islamic community all Muslims. The thrust of those messages or those notations are repeated in a number of the other documents.
In addition to those matters to which I have referred, the informant's affidavit refers to several items found on K's Facebook account, which he describes as revealing social media posting expressing extremist ideology and support of politically motivated violence. He quotes the following examples, “3 May 2015. Shias might look like humans, but don't be fooled. They are animals that learnt how to talk. They are the scum of the Earth. They are nothing more than cockroaches who are using up the resources on Earth. The next time you see one, slap him across the head.”
The informant deposes that the Facebook post was accompanied by a series of comments, including one responding K stating, “They are also Muslims people that think like you is why Muslims can't unite and always having war with each other.” K makes two comments following this stating. “Go through some of the videos I posted in Sha Allah Aki and the war against Shia is necessary, otherwise Islam would be impure and mixed with filth. Think of it as a purification of Islam.” And 4 May 2015, “When will the US realise they are terrorists, or do you want to say it is okay because these babies are in Islamic State territory?” The Facebook post was accompanied by five thumbnail photographs depicting images of dead and injured infants and grieving adults.
Another Facebook entry which was discovered, on 4 May 2015, “When the Muslims were getting oppressed and disgraced around the world, the silly people think they can end their suffering with hashtags and boycotting, but when real men finally stand up to the oppression to defend themselves and other Muslims, and actually do something, they are quickly labelled as un-Islamic and terrorist barbarians by Muslims before anyone else. And the funny thing is, these Muslims who label them as ‘un-Islamic’ most of the time are living a life of sin and the females don't have a hijab. What's Islamic in your lifestyle?”
It should be indicated as highlighted by Mr Richter in the course of his cross-examination of the informant that the three pipe bombs that were found with caps on them under K’s bed, and were later destroyed, were not, and I repeat, were not manufactured bombs. It is conceded that they did not have a hole in the top, which those documents suggest has to be there so the fuse can be placed in them, and nor did they contain any explosives.
The law in relation to applications to uplift is contained in s.356(3) of the Children, Youth and Families Act. That section provides as follows, “If a child," and K is a child, and he is under the age of 18 at the time of the offending, “is charged before the court with an indictable offence other than murder, attempted murder, manslaughter, child homicide, defensive homicide and offence against s 179A of the Crimes Act,” which is arson causing death, “or an offence against s 318 of the Crimes Act 1958, culpable driving causing death, the court must hear the charges summarily, unless (a) before the hearing of any evidence the child objects or (b) at any stage the court considers that the charge is unsuitable by reason of exceptional circumstances to be determined summarily. In those cases, the court must conduct a committal proceeding into the charge and, in the centimetres mentioned in paragraph (b), must give reasons for declining to determine the charge summarily.”
It is common ground that the Children's Court should relinquish its embracive criminal jurisdiction reluctantly. The authorities referred to in Mr Gervich's most helpful submissions are well-known and are often quoted in this court. They are the frequently cited authorities for the proposition to which I made reference.
The first of those authorities is the matter of D (A child) v White (1988) VR 87. At that time, s 15(3) of the Children's Court Act was the relevant piece of legislation, and that enunciated a test of special reason rather than exceptional circumstances as the basis for a court refusing summary jurisdiction. In that case, the accused young person had been charged with armed robbery and conspiracy to commit armed robbery. The magistrate ruled that charges were not suitable to be heard and determined summarily, and proceeded with the hearings as committal proceedings.
In upholding the magistrate's decision, His Honour Nathan J said as follows, “As the Act invests the court with embracive jurisdiction in respect of children, it should only be relinquished reluctantly. The reasons to do so must be special, not matters of convenience or to avoid difficulties. As the power to divest the court of jurisdiction may be invoked by the magistrate personally at any stage, before doing so, the magistrate should ask for, consider and adjudicate upon submissions made by the informant, counsel or parents. The power should be exercised sparingly and the reason for doing so given. The overall administration of justice is the most important criterion. That is justice that affects the community as well as the individual. In this case, a possible joint trial of co-conspirators rather than individual hearings is a significant matter involving the administration of justice. The special reason must satisfy its object. That is, it would enable to determine the matter summarily. Circumstances which might give rise to unsuitability can never be categorised.”
His Honour then went on, having said that, to note facts which are mainly cited as a guide. “The particular features of the offence, the degree of planning and the complexity or maturity of the offender. (2) the antecedents of the offender or particular features peculiar to him. (3) the nature of the evidence to be called by either party may render a case unsuitable for summary determination. Forensic or scientific evidence, even evidence about political motivation may be so complicated or contentious as to fall within this class. Finally, whether there are adult co-accused or accessories and, if so, in what jurisdiction should the majority of charges proceed.”
Further authority which is commonly cited in these instances of these applications is the case of A Child v A Magistrate of the Children's Court and Ors (SCV, unreported) decision of His Honour Cummins J, as he then was, at 24 February 1992. His Honour upheld a magistrate's ruling that there are exceptional circumstances which rendered the charges unsuitable to be heard and determined summarily. In that case, a 16-and-a-half-year-old child was charged with the importation from China, on three occasions, of large amounts of heroin totalling well in excess of a commercial quantity. In upholding the magistrate's ruling, His Honour Cummins J approved and applied the reasoning of His Honour Nathan J in the previous cited case.
In the course of his judgment, Cummins J said as follows, “’Exceptional’ in its ordinary English meaning in the Children and Young Persons Act means more than ‘special’ , it means ‘very unusual.’” He stated as follows, “It's apparent from the scheme, terms and nature of the Children, Youth and Families Act, or the Children, Youth and Child Protection Act at that time, that the Children's Court ought to give up its jurisdiction only with great reluctance. It is plain the particular and therapeutic character of the Children's Court jurisdiction is markedly different from that of the adult courts. The nature and considerations to be taken into account is secondary is also significant.”
His Honour went on to say, “I do not consider that the classification of exceptional circumstances is limited to the circumstances of the charge. In my view, it includes the circumstances of the offender, including the offender's age, experience, maturity and characteristics of intelligence and personality.” I take into account these considerations applicable to this accused in the circumstances there were very much older and very worldly men involved in the operation. On the other hand, I take into account the accused's age, the characterisation of ‘child’ as defined in the Act, and the circumstances of the statement to the various investigating officers, whose step-by-step role alleged by the Crown was revealed. The revelation of real significance of the matter did not come from the accused, it came from others.
And finally in the case of DL (A minor by a Litigation Guardian) v A Magistrate of a Children's Court (Unreported) decision of His Honour Vincent J on 9 August 1994, His Honour stated as follows as a general statement, that, “Exceptional circumstances existed in the case,” and stated, “The gravity of the conduct and the role ascribed to the appellant in it appeared to be the central, if not the only factors to which regard was had, as these were the only considerations mentioned. They are clearly important features, but it is obvious that, as has been indicated, there are other matters to which attention should be given. No reference was made, for example, of the consideration of any personal factors relevant to the young accused.”
Mr Gervich, in his submissions, which were most helpful, sets out not only those authorities but also the number of factors which he submits should be taken by me as establishing exceptional circumstances. He refers, in particular, to the execution of a search warrant and the finding of equipment alleged to be intended to construct improvised explosive devices. Such manufacturing materials, he submits, are promoted in various publication, including Inspire, an English language publication by Al-Qaeda in the Arabian Peninsula. The publications contain instructions on how to make IEDs. Those instructions were allegedly found in K’s possession, or they certainly have been produced today and, having been obtained today by forensic experts who have removed them from the young person's computer.
Further, it submits that it's alleged that K was constructing elbow joint IEDs or pressure cooker IEDs. Notes alleged to be written by K containing material advocating Islamic State in K’s martyrdom. The content of a mobile phone alleged to be K' s contained searches consistent with terrorist activity. The mobile phone and the computer were each protected by military grade encryption, TrueCrypt. Recent social media postings alleged to be K’s contain extremist ideology in support of politically motivated violence. The alleged motivation, he submits, was to kill and maim indiscriminately and to instil terror.
He refers to the maximum penalties: life for the first charges, 15 years for the second, and two for the third. He submits that, on the material before the court at this stage, K was progressed significantly towards a construction of IEDs. He concedes that K was 17 at the time of alleged offending and will turn 18 on 10 February 2016 and submits that places him at the upper end of the jurisdiction. He submits that K appears to be of normal intelligence, having commenced year 12 at Sirius College at the beginning of this year. He submits that the seriousness of the charges, the Children's Court would not be able to exercise appropriate sentencing powers in the event of a conviction; that is, a youth justice detention to a maximum of two years on any one offence, and a total of three on two or more years.
He finally submits that the nature of the evidence makes it unsuitable for summary jurisdiction, that is digital forensic analysis, IED forensic analysis, ideological and religious motivation evidence, and that, finally, if I accept and uphold his submission, the matter should go to the Supreme Court. It is conceded by Mr Gervich that K has no criminal history.
Mr Richter, in his submission in which he opposes the uplifting of the case, relies particularly upon the following matters: that K is 17 years of age, that he comes from a good and supportive family, about which there is no issue, at least taken at this time. He refers to the young person as being suitable for his matters to be dealt with because this court in this criminal jurisdiction is most concerned about rehabilitation, assisting young people to overcome any problems that they may have had, and being dealt with in a way that is quite different to the way in which adults are sentenced in this state. That's absolutely true. There is a marked difference in the sentencing of young people who come within the jurisdiction of the Children, Youth and Families Act and those who are sentenced in the adult court.
He refers to the fact that K got material from the internet, that there are no associates of him, and he distinguishes that feature of K's situation to that of many other people who have been charged with terrorist offences often in association with others. He told me that the accused appears to have led himself astray, that he's a passionate person, that the court must be responsible for him in terms of treating him as a child, which he is, and not deal with him by referring the matter off to the Supreme Court.
I have listened very carefully to those submissions and I have regard to each of them. In my view, however, there are exceptional circumstances established in this case and I do propose to direct the matter be sent for committal and, if the young man is committed, then the matter will proceed to the Supreme Court. It goes without saying that the charges which he faces are extremely serious, the first of them carrying with them a sentence of life imprisonment. At no time do I suggest for one moment that if this matter goes to the Supreme Court he will be sentenced to anything like that.
He is a young person, he has no prior history, he has got good family support, there is nothing to suggest that he is not an intelligent person, having been enrolled this year for core 12. However, I cannot ignore the fact that the first of these charges carries with it a maximum period of life imprisonment, which is at the very top end of sentencing options for any court.
But the gravity of the offences has to be seen in the context of the other material associated with it. The receipt by the young person of material from a terrorist organisation, Al-Qaeda, through the Inspire publication, the finding at his home in his bedroom and in the garage of items of the type clearly outlined in those publications as necessary for the construction of IEDs, the Facebook postings, the notes the he has written, on the surface, would indicate a degree of radicalisation of this young person. Others might have something to say about that. The call to others to go to the middle east to join ISIS. The other comments to which have attributed him as contained in the documentation to which reference has been made. All of the ingredients necessary to produce IEDs largely have been found. The recipe is there. The documentation is in his own computer.
In relation to the numbers of matters that His Honour Nathan J referred to in his judgment, although they are not binding, just facts which are a guide, his Honour referred to the particular features of the offence to which I've referred; the degree of planning: there’s clearly, on the face of it, been a degree of planning associated with the construction of IEDs, on the material before me. He also talks about the maturity of the offender. Mr Richter, understandably, reminds me that he's 17 years of age, but he's in the last year of that cohort, but is capable of having his matters dealt with in the Children's Court. He's less than 12 months off being 18 years and an adult when this arrest took place.
In paragraph 2 of his Honour's judgment, the second of his guidelines, the antecedents of the defendant: there are none; but the particular features peculiar to him: they're relevant, in my view, in the context of the pro-jihadist ISIS-supportive expressions that are contained in the various publications from his own hand, notebooks, Facebook. This matter, in terms of technicality, is not such that it needs to be dealt with in a higher court. It’s fairly clear, in my view, that this could not fit within the category of cases so complicated or contentious as to be incapable of being dealt with in this court. There are no adult co-accused or accessories as far as we know, but it is the nature of the offences, the maximums applicable to it as a signal of their seriousness, the accompanying material both in terms of documents, items found and messages which are all consistent with a young person who appears to have been radicalised and was capable, in my view, of engaging in the conduct that he has been charged with.
Ultimately, the question is this: does the Children's Court's jurisdiction, in terms of sentencing, allow it to deal with this case, or should it be referred to a higher court because the three-year maximum would not be sufficient? In my view, having regard to all the circumstances, three years, if this young man is found guilty of offences, would not be sufficient. That is not my decision, I am not sentencing him, but the sentencing range, in my view, would be greater than three years. The Court, in my view, does not have sufficient jurisdiction from a sentencing point of view to deal with these matters, bearing in mind all those matters to which I have referred.
I grant the application of a prosecution. I note that there is no application for bail today. I will remand K for a 21-day period.
0
8
0