Lodhi v R - [2007] NSWCCA 360

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Faheem Khalid Lodhi v Regina [2007] NSWCCA 360

FILE NUMBER(S):
2005/2993

HEARING DATE(S): 5 November 2007, 6 November 2007

JUDGMENT DATE: 20 December 2007

PARTIES:
Faheem Khalid Lodhi
Regina

JUDGMENT OF: Spigelman CJ Barr J Price J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2005/1094

LOWER COURT JUDICIAL OFFICER: Whealy J

COUNSEL:
App: P Boulten SC and P Lange
Crown: W Abraham QC and G Bellew SC
Attorney General: H Burmester QC and G Del Villar

SOLICITORS:
App: M Doughty
Crown: Commonwealth Director of Public Prosecutions
Attorney General: Australian Government Solicitor

CATCHWORDS:
Criminal law – collecting documents connected with preparation for a terrorist act – doing an act in preparation for a terrorist act – possessing a thing connected with preparation for a terrorist act
Criminal law – indictment – particulars – whether indictment lacked particularity
Criminal law – indictment – duplicity – whether indictment duplicitous
National security information – orders prohibiting disclosure – risk of prejudice to national security – whether test for risk of prejudice usurps judicial power – whether test unconstitutional
Admissibility of evidence – evidence of association of accused person and trained terrorist – whether evidence had probative value – whether inference of intent available from association – whether risk of unfair prejudice outweighed probative value
Admissibility of evidence of identification by photograph of a person not the accused – fairness of identification procedure – whether risk of unfair prejudice outweighed probative value
Evidence adduced on appeal – whether fresh – whether cogent
Collecting documents connected with preparation for a terrorist act – doing an act in preparation for a terrorist act – possessing a thing connected with preparation for a terrorist act – whether Crown must prove that at the time of the collection, the action or the possession the accused has determined when how where or by whom the terrorist act might be carried out
Terrorism – culpability for preparatory acts short of attempt
Sentencing - acts preparatory to terrorist acts - protection of the community
Criminal law – sentence - whether assessment of objective seriousness of offence flawed - whether sufficient weight given to custodial conditions – whether head sentence should have been reduced – whether sentence manifestly excessive

LEGISLATION CITED:
Criminal Code Act 1995
Criminal Appeal Act 1912
National Security Information (Criminal and Civil Proceedings) Act 2004
Crimes Act 1914
Terrorism Act 2000 (UK)
Criminal Justice Act 1991 (UK)
Criminal Justice Act 2003 (UK)
Security Legislation Amendment (Terrorism) Bill (2002)
Crimes (Internationally Protected Persons) Act 1976
Evidence Act 1995

CASES CITED:
AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
Alexander v The Queen (1979-1980) 145 CLR 395
Attorney General of New South Wales v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368
Attorney General of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653
Australian Building Construction Employees’ and Builders Labourers’ Federation v The Commonwealth (1986) 161 CLR 88
Bugmy v The Queen (1990) 169 CLR 525
Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121
Chester v The Queen (1998) 165 CLR 611
Chu Kheng Lim v Minister of Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334
Bendix Autolite Corp v Mid Wesco Enterprises Inc 486 US 888 (1988)
Bounds v The Queen [2006] HCA 39
Dietrich v The Queen (1992) 177 CLR 292
Director of Public Prosecutions v Coe [2003] NSWSC 363
Drazkiewicz, Court of Criminal Appeal, 23 November 1993 unreported.
Evans v Marmont (1997) 42 NSWLR 70
Ex Parte Bread Manufacturers Ltd; v Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242
Fardon v Attorney General of Queensland [2004] HCA 46; (2004) 223 CLR 575
Fencott v Muller (1983) 152 CLR 570
Festa v The Queen (2001) 208 CLR 593
H A Bachrach Pty Ltd v Queensland [1998] HCA 54; (1998) 195 CLR 547
Harris v Caladine (1991) 172 CLR 84
Hinch v Attorney General of Victoria (1987) 164 CLR 15
Ibbs v The Queen (1987) 163 CLR 447
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Liyanage v The Queen [1967] 1 AC 259
Markarian v The Queen (2005) 79 ALJR 1048
Meloh [2001] NSWCCA 211
Mickelberg v The Queen (1989) 167 CLR 259
Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173
Powercoal Pty Ltd v Industrial Relations Commission of New South Wales [2005] NSWCA 345; (2005) 64 NSWLR 406
R v Boutrab [2005] NICC 36
R v Brownlowe [2004] NSWCCA 465
R v Burchett (1987) 34 A Crim R 418
R v Cook [2004] NSWCCA 52
R v Richard Bruce Cornwell, 20 February 2003, unreported.
R v Cuthbert [1967] 2 NSWR 329
R v Dwyer [1925] 2 KB 799
R v Ejiofor [2002] OJ No. 891
R v Fung [2002] NSWCCA 479
R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322
R v Lisoff [1999] NSWCCA 364
R v Lodhi [2006] NSWCCA 121
R v Lodhi [2006] NSWSC 371; (2006) 163 A Crim R 448
R v Lodhi [2006] NSWSC 691
R v Mai (1992) 25 NSWLR 371
R v Abu Baker Mansha [2006] EWCA Crim 2051
R v Martin (1999) 1 Cr App R (S) 477
R v Mostyn [2004] NSWCCA 97
R v Parole Board ex parte Smith [2005] UKHL 1
R v Roche [2005] WASCA 4; (2005) 188 FLR 336
R v Sakr (1987) 31 A Crim R 444
R v Serratore [1999] NSWCCA 377
R v Shamouil [2006] NSWCCA 112
R v Suteski [2002] NSWCCA 509
R v Taouk (1992) 65 A Crim R 387
R v Totten [2003] NSWCCA 207
R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361
R v John Viana [2001] NSWCCA 171
R v Yates [2002] NSWCCA 520
Ridgeway v The Queen (1995) 184 CLR 19
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Scott v R [1989] AC 1242
Smith v The Queen [2001] HCA 50
Stitt (1998) 102 A Crim R 428
The Queen v Glennon (1992) 173 CLR 592
The Queen v Humby; ex parte Rooney (1973) 129 CLR 231
The Queen v Radich [1954] NZLR 86
The Queen v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 355
Thomas v Mowbray [2007] HCA 33; (2007) 81 ALJR 1414
United States v Lopez-Medina 461 F.3d 724 at 741-42 (6th Cir. 2006)
United States v Polasek 162 F.3d 878 at 884 (5th Cir. 1998)
United States v Romo 669 F.2d 285 at 288-89 (5th Cir. 1982)
Veen v The Queen (No 2) (1988) 164 CLR 465
Wong v The Queen [2001] 207 CLR 584
Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589

DECISION:
Appeal against conviction dismissed. Leave granted to appeal against sentence; appeal dismissed.

JUDGMENT:

THE COURT OF
CRIMINAL APPEAL

CCA 2005/2993
SPIGELMAN CJ
BARR J
PRICE J
20 DECEMBER 2007

FAHEEM KHALID LODHI v REGINA

SUMMARY

The appellant was charged with collecting certain documents which were connected with preparation for a terrorist act, knowing that connection, with doing a certain act in preparation for a terrorist act and with possessing a certain thing connected with preparation for a terrorist act, knowing that connection. The documents in the first charge were maps of the Australian electricity supply grid. The act in the second was seeking information from a chemical supply company about the availability of materials capable of being used to make explosives or incendiary devices. The thing in the third charge was a document setting out the ingredients for and the method of making poisons, explosives, detonators, incendiary devices, etcetera. The charges were laid under ss101.5, 101.6 and 101.4 respectively of the Commonwealth Criminal Code. The maximum prescribed sentences were imprisonment for ten years, for life and for ten years respectively. The jury found the appellant guilty of the three offences but not guilty of a fourth. The appellant was sentenced to imprisonment to concurrent terms totalling twenty years. A non-parole period of fifteen years was set.
Early in the trial the appellant appealed by leave to this Court under s5F Criminal Appeal Act against the refusal of the trial judge to quash the indictment for duplicity and want of particularity: see [2006] NSWCCA 121. The first ground of appeal raised again matters dealt with in that judgment and the Court declined to deal with them.
The second ground of appeal asserted that s31(8) National Security Information (Criminal and Civil Proceedings) Act 2004 (Commonwealth) (the NSI Act) was invalid because it breached Ch III Australian Constitution by usurping the judicial power of the Commonwealth which was vested solely in the judiciary. The NSI Act is concerned with protecting national security by empowering judges to make non-disclosure orders. The legislation applies if the prosecutor gives the Attorney General written notice that the Act applies. Then the prosecutor and the defence are required to notify the Attorney General of certain matters relating to the disclosure in the proceedings of information that relates to national security or the disclosure of which may affect national security. Criminal proceedings for these purposes include production, inspection and disclosure of documents. If the Attorney General considers that the disclosure of information is likely to prejudice national security the Attorney General may issue a certificate describing the information and prohibiting disclosure expect in permitted circumstances. If the Attorney General so certifies, the Court must hold a hearing to decide whether to make an order about disclosure of the information. By s31 the Court may order that a person may in permitted circumstances or must not disclose information or may or must not call a particular witness. By subs (7) the Court in deciding whether to make an order must consider whether, having regard to the Attorney General’s certificate, there would be a risk of prejudice to national security if the information were disclosed or the witness called and whether the order would have a substantial adverse effect on the defendant’s right to a fair trial, as well as any other relevant matter. By subs (8) the Court is to give “greatest” weight to the assessed risk of prejudice to national security.
The Attorney General issued a certificate and the other steps followed. The trial judge held a hearing and made orders concerning documents produced to the Court.
It was submitted on appeal that by requiring the Court to give “greatest” weight to the risk of prejudice to national security the Parliament had usurped the judicial function by directing the judge hearing the case how the case must effectively be decided. The Court decided that the use of the word ‘”greatest” as possibly applicable to the weighing of more than two circumstances meant no more than that greater weight must be given to the risk of prejudice to national security than to any other of the circumstances weighed. If only two circumstances were weighed, it would be construed to mean “greater”. The effect of the subsection was not to usurp judicial power by requiring that the balance must always come down in favour of the risk of prejudice to national security. Subs (8) was not constitutionally invalid.
The third and fourth grounds of appeal asserted that evidence of an association between the appellant and a man called Willie Brigitte should have been excluded because it had no probative value. It was no more than evidence of association. It was held that the association and communications between the appellant and Brigitte amounted to a circumstance capable of explaining why the appellant acted as he did. The Court rejected an alternative submission that the risk of unfair prejudice outweighed the probative value of the evidence. It was submitted that evidence of identification by photograph of Brigitte ought to have been rejected because the manner of identification was prone to produce error. The submission was rejected.
The fifth ground of appeal relied on evidence given after the trial by the witness who had identified Brigitte by photograph. An answer he gave was said to be capable of throwing doubt on the integrity of the process of identification. The Court considered that the evidence lacked the necessary cogency and decided not to receive it.
The sixth ground of appeal asserted that the trial judge had erred in refusing to direct verdicts of acquittal because the Crown could not prove that when he did the act forming the basis of each of the charges the appellant had determined when, how, where or by whom the relevant terrorist act might be carried out. The Court observed that the acts charged were preparatory only and that proof of the matters raised was not necessary for conviction.
The Court dismissed the appeal against conviction.
In granting leave to appeal against sentence and dismissing the appeal the Court held that the trial judge’s assessment of the objective seriousness of the offences was not flawed, that his Honour had not failed to give sufficient weight to the conditions in which the appellant would be held in custody, that his Honour did not err in not reducing the head sentence by reference to s19AG Crimes Act 1914 (Commonwealth) and that the sentence was not manifestly excessive. The Court emphasised the need, in sentencing for culpable acts preparatory to acts of terrorism, for courts to impose sentences which protect the community.

Judgment

SPIGELMAN CJ: I have read the judgment of Barr J in draft. His Honour deals with the facts and with the submissions relating to the grounds of appeal other than Ground 2. I agree with his Honour’s reasons for rejecting each ground of appeal with which his Honour deals.
Ground 2
The second ground of appeal is that:
“His Honour erred in applying an unconstitutional test in determining whether information, the disclosure of which was sought by the Appellant, was subject to public interest immunity.”
This ground of appeal raises the constitutional validity of provisions of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (here after the “NSI Act”) which empower the court to order a person not to disclose national security information as defined in the Act.
This issue arose as a result of a subpoena to produce documents issued on behalf of the appellant. A number of documents were the subject of a ruling by Whealy J that neither party should disclose documents or should do so only in redacted form. His Honour decided the matter in accordance with the NSI Act.
The non-disclosure orders affected most of the documents under consideration. His Honour did, however, in a considered judgment, order that certain material be disclosed to the appellant.
Save on the basis of constitutional invalidity, there is no appeal from his Honour’s non-disclosure orders. Furthermore, the aspect of the NSI Act which arises on this ground of appeal concerns the manner in which the Act regulates access to documents sought on subpoena. This ground focuses attention on s 31(8) of the NSI Act.
The Legislative Scheme
The application of the Act is triggered by a notice in writing by the prosecutor to the accused, and to the Court, that the Act applies to the proceedings. (s 6(1))
The words “national security” are defined in s 8 to s 11 in terms which do not arise on the submissions in the present proceedings.
Section 24(1)(a)-(c) requires a prosecutor or the defendant to notify the Attorney General of certain matters, which do not need to be set out in full. It is sufficient to note, for present purposes, that these provisions refer to the disclosure in a federal criminal proceeding of information “that relates to national security” or “may affect national security”.
It is pertinent, for present purposes, to note that the “production, inspection or disclosure of … documents” is identified as “part of a criminal proceeding”. (s 13(2)(c))
The first directly relevant step for present purposes was the issue of a certificate by the Attorney General pursuant to s 26(2)(b). The relevant provisions of s 26 are:
“26(1)     This section applies if:
(a)          any of the following happens:
(i)           the Attorney-General is notified under section 24 that the prosecutor or defendant knows or believes that the prosecutor or defendant or another person will disclose information in a federal criminal proceeding;
(ii)          the Attorney-General for any reason expects that any of the circumstances mentioned in paragraphs 24(1)(a) to (c) will arise under which the prosecutor or defendant or another person will disclose information in a federal criminal proceeding;
…
(c)          the Attorney-General considers that the disclosure is likely to prejudice national security.
(2)          If the information would be disclosed in a document (the source document), the Attorney-General may give each potential discloser (see subsection (8)) of the information in the proceeding:
(a)          any of the following:
(i)           a copy of the document with the information deleted;
(ii)          a copy of the document with the information deleted and a summary of the information attached to the document;
(iii)         a copy of the document with the information deleted and a statement of facts that the information would, or would be likely to, prove attached to the document;
together with a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise), but may disclose the copy, or the copy and the statement or summary; or
(b)          a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise).
…”
(Section 26(8) identifies, relevantly, the prosecutor and defendant as a “potential discloser”.)
In the present case the Attorney General issued certificates prohibiting disclosure of information in the documents to which the appellant sought access.
The present proceedings are federal criminal proceedings as defined in s 14(a) of the Act, being proceedings for an offence against the law of the Commonwealth. In such a case s 27 provides:
“27(1)     If a proceeding is covered by paragraph 14(a) (about a proceeding involving a trial) and, under section 26, the Attorney-General gives a potential discloser a certificate at any time during a part of the proceeding that takes place before the trial begins, the certificate is conclusive evidence, during that part of the proceeding and any later part that takes place before the hearing mentioned in paragraph (3)(a) begins, that disclosure of the information in the proceeding is likely to prejudice national security.
…
(3)          If a proceeding is covered by paragraph 14(a) (about a proceeding involving a trial) and, under section 26, the Attorney-General gives a potential discloser a certificate at any time during the proceeding, the court must:
(a)          in any case where the certificate is given to the court before the trial begins – before the trial begins, hold a hearing to decide whether to make an order under section 31 in relation to the disclosure of the information; or
(b)          if subparagraph 26(1)(a)(i) or (iii) applies and the certificate is given to the court after the trial begins – continue the adjournment of the proceeding mentioned in subsection 24(4) or 25(7) for the purpose of holding a hearing to decide whether to make an order under section 31 in relation to the disclosure of the information; or
(c)          if subparagraph 26(1)(a)(ii) applies and the certificate is given to the court after the trial begins – adjourn the proceeding for the purpose of holding a hearing to decide whether to make an order under section 31 in relation to the disclosure of the information.
(4)          If the Attorney-General revokes the certificate at any time while the proceeding is adjourned or the hearing is being held, the court must end the adjournment or the hearing.
(5)          The closed hearing requirements apply to the hearing.”

Detailed provision is made for the conduct of a closed hearing by s 29, which does not need to be fully set out.
Section 31 empowers the Court to make orders. Subsequent sections make provisions for steps to be taken after the making of orders, which were not relied upon in this appeal. The critical provision is s 31(8), which must be understood in the context of s 31:
“31(1)     After holding a hearing required under subsection 27(3) in relation to the disclosure of information in a federal criminal proceeding, the court must make an order under one of subsections (2), (4) and (5) of this section.
(2)          If the information is in the form of a document, the court may order under this subsection that:
(a)          any person to whom the certificate mentioned in subsection 26(2) or (3) was given in accordance with that subsection; and
(b)          any person to whom the contents of the certificate have been disclosed for the purposes of the hearing; and
(c)          any other specified person;
must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise), but may, subject to subsection (3), disclose (which disclosure may or may not be the same as was permitted in the Attorney-General’s certificate) in the proceeding:
(d)          a copy of the document with the information deleted; or
(e)          a copy of the document with the information deleted and a summary of the information, as set out in the order, attached to the document; or
(f)           a copy of the document with the information deleted and a statement of facts, as set out in the order, that the information would, or would be likely to, prove attached to the document.
(3)          If the court makes an order under subsection (2), the copy of the document is admissible in evidence if, apart from the order, it is admissible. However if:
(a)          a person who is the subject of the order seeks to adduce evidence of the contents of the document; and
(b)          the contents of the document are admissible in evidence in the proceeding;
the person may adduce evidence of the contents of the document by tendering the copy, or the copy and the summary or statement, mentioned in that subsection.
(4)          The court may, regardless of the form of the information, order under this subsection that:
(a)          any person to whom the certificate mentioned in subsection 26(2) or (3) was given in accordance with that subsection; and
(b)          any person to whom the contents of the certificate have been disclosed for the purposes of the hearing; and
(c)          any other specified person;
must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise).
(5)          The court may, regardless of the form of the information, order under this subsection that any person may disclose the information in the proceeding. However, the information is only admissible in evidence in the proceeding if, apart from the order, it is admissible.
(6)          After holding a hearing required under subsection 28(5), the court must order that:
(a)          the prosecutor or defendant must not call the person as a witness in the federal criminal proceeding; or
(b)          the prosecutor or defendant may call the person as a witness in the federal criminal proceeding.
(7)          The Court must, in deciding what order to make under this section, consider the following matters:
(a)          whether, having regard to the Attorney-General’s certificate, there would be a risk of prejudice to national security if:
(i)           where the certificate was given under subsection 26(2) or (3) – the information were disclosed in contravention of the certificate; or
(ii)          where the certificate was given under subsection 28(2) – the witness were called;
(b)          whether any such order would have a substantial adverse effect on the defendant’s right to receive a fair hearing, including in particular on the conduct of his or her defence;
(c)          any other matter the court considers relevant.
(8)          In making its decision, the Court must give greatest weight to the matter mentioned in paragraph (7)(a).”
The phrase “substantial adverse effect”, which appears in s 31(7)(b), is defined in s 7 to mean “an effect that is adverse and not insubstantial, insignificant or trivial”.
Although the phrase “risk of prejudice to national security” is not defined, a cognate phrase is defined in s 17:
“17 A disclosure of national security information is likely to prejudice national security if there is a real, and not merely a remote, possibility that the disclosure will prejudice national security.”
It is also pertinent to note the express objects provision, s 3:
“3(1) The object of this Act is to prevent the disclosure of information in federal criminal proceedings and civil proceedings where the disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice.
(2) In exercising powers or performing functions under this Act, a court must have regard to the object of this Act.”
Finally s 19 provides:
“19(1) The power of a court to control the conduct of a federal criminal proceeding, in particular with respect to abuse of process, is not affected by this Act, except so far as this Act expressly or impliedly provides otherwise.
(2) An order under section 31 does not prevent the court from later ordering that the federal criminal proceeding be stayed on a ground involving the same matter, including that an order made under section 31 would have a substantial adverse effect on a defendant’s right to receive a fair hearing.
…”
The Interpretation of s 31(8)
Mr P Boulten SC, who appeared for the appellant, focused his constitutional submissions on s 31(8). The starting point for any analysis must be the interpretation of that provision.
The difficulty that arises is the use of the superlative, “greatest”. If the sub section had referred to “great weight” the issue now agitated before the Court would probably not have arisen at all.
In Mr Boulten’s submission, this provision constitutes an impermissible usurpation of judicial power because, as a matter of practical reality, the executive certificate, together with the usual supporting evidence, would determine whether or not disclosure is made. A trial judge simply would not have, Mr Boulten submitted, the capacity to formulate an independent judgment about the degree of threat to national security and, save in the case of fanciful claims, would not, as a practical matter, be able to act in any other manner than to enforce the certificate.
Accordingly, although in form the legislation purports to confer a discretionary judgment to be exercised by the trial judge, in substance the certificate together with the supporting evidence will prove to be determinative, save in the case of fanciful claims of a risk to national security.
Mr Boulten also submitted that, in such a context the public may perceive the Courts to be acting in accordance with the wishes of the Executive branch of Government rather than pursuant to an unimpeded exercise of judicial power.
With regard to Mr Boulten’s submission that the legislative scheme is such that in substance, albeit not in form, a certificate and supporting evidence will prove determinative, s 31(8) is not distinctive in that regard. Such difficulties often arise in public interest immunity claims, particularly where issues of national security are involved.
Mr H Burmester QC, who appeared for the Attorney General, relied on two provisions which, he submitted, minimise any interference with the administration of justice associated with the tilting of the balance in the formulation of the judgment for which s 31(8) calls and the exercise of the discretion to make an order under s 31(2) or s 31(4).
The first provision upon which Mr Burmester relied is s 19 which acknowledges the ability of the Court to stay proceedings on the grounds of abuse of process. However, as Mr Boulten also submitted, this ultimate power does not allow for the situation in which an adverse impact occurs on the fairness of the trial, but the relevant imperfection is not such as to justify a stay.
Mr Boulten’s submission should be accepted in this respect. Although the Court’s power to order a stay of proceedings to prevent abuse of its process is acknowledged, it is a power that is rarely exercised, particularly where criminal proceedings are instituted with respect to charges of a serious character, as will often be the case where issues of national security arise. This ultimate fallback power is not entitled to significant consideration in determining whether or not this legislative scheme impermissibly intrudes upon the exercise of judicial power.
The second provision upon which Mr Burmester relied is the Objects clause, s 3, in particular the requirement in s 3(2) that the Court must have regard to the object when exercising powers or performing functions. Section 3(1) is fully set out above. It states that the object of the Act is to protect national security, but to do so only to a limited extent. The limitation arises by reason of the words: “except to the extent that preventing the disclosure would seriously interfere with the administration of justice.”
Accordingly, when exercising the function of giving “greatest weight” to the “risk of prejudice to national security” a court must “have regard” to the object of the Act to avert such ‘prejudice’, but not absolutely. The avoidance of ‘prejudice’ is qualified wherever non-disclosure of information “would seriously interfere with the administration of justice.”
A statutory requirement to “have regard to” a specific matter, requires the Court to give the matter weight as a fundamental element in the decision making process. (R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 320; The Queen v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 355 and 338; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at 602, [71]-[73]). An equivalent formulation is that the matter so identified must be the focal point of the decision making process. (See Evans v Marmont (1997) 42 NSWLR 70 at 79-80; Zhang supra at [73].)
There is a tension between the objects clause and s 31(7) and (8). The reference in s 3(1) to “seriously interfere with the administration of justice” is capable of being regarded as coincident with the formulation “a substantial adverse effect on the defendant’s right to receive a fair hearing”. In my opinion, where there is a “substantial adverse effect on the right to receive a fair hearing,” then it would be concluded that there had been a ‘serious interference with the administration of justice’. It is a difficult task to avoid prejudice to national security, whilst having regard to the proposition that that objective should not prevail where disclosure of information would seriously interfere with the administration of justice. Nevertheless, that is the task which Parliament has set for the Court. As I will indicate below, balancing incommensurable interests is a task to which courts are accustomed.
Mr Burmester also submitted that the word “greatest” is used for grammatical reasons. (Accepting the reasoning of Whealy J in R v Lodhi [2006] NSWSC 371; (2006) 163 A Crim R 448 at 469 [108]). Although the primary focus in s 31(7) is on the balancing of national security interests, to which par (a), refers and the right to receive a fair trial, to which (b) refers, par (c) permits the Court to take into account any other matter that it considers relevant.
As a matter of grammar this submission is correct. If only (a) and (b) had been present in subs (7) then the formulation in subs (8) would have used the word “greater”, rather than “greatest”. In a case, such as the present, where in substance the relevant balancing exercise is between pars (a) and (b), that is how subs (8) should be construed.
Mr Burmester, on the basis of the interpretation he advocated, submitted that the degree of interference with the exercise of the judicial power is lower than that submitted by the appellant. In particular he submitted that, in circumstances where there was a substantial adverse effect on the right to receive a fair trial, but the risk of prejudice to national security was “low”, then the trial judge in giving “greatest weight” or “greater weight” to the latter would still order disclosure.

Mr Burmester drew the Court’s attention to the fact that, with respect to particular documents, that is precisely what Whealy J did in the present case. His Honour did order disclosure of certain documents after making the judgment that the prejudice to national security was low.
The effect of s 31(8) was, in my opinion, accurately set out by Whealy J in Lodhi supra at [108]:
“[108] The mere fact that the legislation states that more weight, that is the greater weight, is to be given to one factor over another does not mean that the other factor is to be disregarded. The use of the expression ‘greatest weight’ appears to be grammatically correct since the legislation is contemplating three (or more) considerations. Nor do I consider that the discretion is an exercise that, as was argued, will almost inevitably lead to one result namely, prevention of disclosure. Mr Boulten SC described it as ‘filling in the dots’. I cannot agree with this description. Read fairly, it seems to me that the legislation does no more than to give the Court guidance as to the comparative weight it is to give one factor when considering it alongside a number of others. Yet the discretion remains intact and, particularly for the reasons I have outlined, it seems to me that there is no warrant for supposing other than that, in a proper case, the Court will order disclosure or a form of disclosure other than that preferred by the Attorney-General. The legislation does not intrude upon the customary vigilance of the trial judge in a criminal trial. One of the court’s tasks is to ensure that the accused is not dealt with unfairly. This has extended traditionally into the area of public interest immunity claims. I see no reason why the same degree of vigilance, perhaps even at a higher level, would not apply to the Court’s scrutiny of the Attorney’s certificate in a s 31 hearing.”
Mr Burmester’s submission on the grammatical requirement to use the word “greatest”, based on Whealy J’s approach, provides an important corrective to the connotation that the use of the superlative would otherwise invoke. Relevantly, s 31(8) should be applied as if it said:
“In making its decision, the Court must give greater weight to the matter mentioned in paragraph (7)(a) than to the matter mentioned in paragraph (7)(b).”
This interpretation is of considerable significance for the determination of the constitutional issue before the Court. It is not only where, as Whealy J held with respect to particular documents in the present case, “the risk of prejudice to national security” is assessed to be “low” that subs (7)(b) may outweigh subs (7)(a), notwithstanding subs (8). There may be a significant risk of such prejudice but, even giving that consideration “greater weight”, the extent of “adverse effect on the defendant’s right to receive a fair hearing” may be such that disclosure is required.
On this interpretation of s 31(8), no constitutional issue arises. In my opinion, however, even if the superlative was given a substantive, rather that a grammatical application, the subsection would still be valid.
The Balancing Exercise
Section 31(7) and (8) require the Court to consider disparate matters, relevantly risk of prejudice to national security and the effect on the defendant’s right to receive a fair hearing, giving “greatest weight” to the former. This involves a broad evaluative judgment of a character that is often referred to in terms of the metaphor of “balancing”. (See generally Frank M Coffin “Judicial Balancing: the Protean Scales of Justice” (1980) 63 New York University Law Review 16.) Such balancing involves comparison between conflicting interests that are, in their essence, incommensurable. As Justice Scalia put it, this is like asking “whether a particular line is longer than a particular rock is heavy”. (Bendix Autolite Corp v Mid Wesco Enterprises Inc 486 US 888 (1988) at 897)
Although the ultimate task to be performed is one of balancing, s 31(8) does tilt the balance or put a thumb on the scales. However, this is only one of many possible ways in which common law principles or legislative provisions can guide the task of balancing conflicting interests. The existence of such guidance, even if it can be said to tilt the balance in favour of a particular decision, does not fundamentally alter the task. For purposes of assessing the constitutional propositions upon which the appellant relied, it is important to recognise that tilting the balance by some form of guidance is perfectly consistent with the traditional judicial decision making process.
That this is the case is perhaps best illustrated by the fact that common law principles developed by the courts may also involve a tilting of the balance. For example in Hinch v Attorney General of Victoria (1987) 164 CLR 15, the High Court considered the balancing exercise required by the principle expressed in Ex Parte Bread Manufacturers Ltd; v Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 249-250. The Bread Manufacturers defence requires the Court in contempt proceedings to balance competing public interests between the administration of justice, on the one hand, and freedom of expression on the other.
In this context Wilson J, after reviewing the relevant case law concluded in Hinch at 41-42:
“But it is important to emphasise that in undertaking a balancing exercise the court does not start with the scales evenly balanced. The law has already tilted the scales. In the interests of the due administration of justice it will curb freedom of speech, but only to the extent that is necessary to prevent a real and substantial prejudice to the administration of justice”. [Emphasis added]
His Honour also said at 43:
“Of course, there are some respects in which the law has already decreed a freedom to the media to publish prejudicial material e.g. in the freedom to publish fair reports of preliminary court proceedings, including bail applications and committal proceedings. But this freedom is strictly circumscribed, reflecting the strength of the law’s concern to protect the due administration of justice from unjustifiable interference. Generally speaking, it is for a court, in determining whether impugned conduct should be condemned and punished as a contempt of court, to engage in a balancing exercise between competing public interests. Nevertheless, the law provides guidance of the kind I have indicated in determining the relative weight to be accorded to the factors which in a particular case may require consideration.” [Emphasis added]
Note the express adoption of the observations of Wilson J with respect to the tilting of the scales in Attorney General of New South Wales v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 384).

This tilting or “thumb on the scales” approach to a balancing exercise does not involve the formulation of a rule which determines the outcome in the process. Although the provision of guidance, or an indication of weight, will affect the balancing exercise, it does not change the nature of the exercise. (See also Attorney General of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653 especially at [65]-[66], [71], [81]-[84].)
It may be that the interposition of a rule or standard applicable before the process of balancing is undertaken will lead to the conclusion that the process does not involve a balancing exercise at all. However, that is not the case where the common law principle or statute identifies one interest as more important than another in a particular context.

To give more weight to one matter over another is a task that is often performed in the course of balancing conflicting interests. (See V Luizzi “Balancing of interests in Courts” (1980) 20 Jurimetrics Journal 373 especially at 387-390.) I also agree with the author’s observation at 373 that:
“Although we may all recognise the difficulties of balancing the conflicting interests of parties and citizens, we all share a common intuitive grasp of, or at least are in agreement about, what the metaphor of balancing interests entails.”
The formulation by judges of guidance for the conduct of a balancing exercise between incommensurable interests is a process for which there is some analogy to the legislative task. As Benjamin Cardozo said of a judge engaged in such a process:
“If you ask how he is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself. Here, indeed, is the point of contact between the legislator’s work and his. The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law.” (The Nature of the Judicial Process, (1921) Yale University Press New Haven and London at 113).
The analogy between this kind of judicial task and the legislative task is pertinent to the issue of constitutional validity.
Legislative Usurpation
The separation of powers issue which arises on the submissions in the present case is whether the NSI Act, especially by force of s 31(8), does “usurp or infringe” (Liyanage v The Queen [1967] 1 AC 259 at 289), the judicial power of the Commonwealth which Ch III of the Constitution vests exclusively in the judiciary, including in State courts exercising federal jurisdiction.
One test is to consider whether the “legislation in question interferes with the judicial process itself”. (Australian Building Construction Employees’ and Builders Labourers’ Federationv The Commonwealth (1986) 161 CLR 88 at 96; quoted with approval in H A Bachrach Pty Ltd v Queensland [1998] HCA 54; (1998) 195 CLR 547 at 563 [19] and see 564 [21].
Alternatively to the language of “usurpation” or interference, Liyanage has been referred to as authority for a test of whether the legislature “attempted to circumscribe the judicial process.” (See Australian Building Construction Employees’ supra at 96, not quoted in Bachrach supra). This terminology was adopted by Mason J in The Queen v Humby; ex parte Rooney (1973) 129 CLR 231. His Honour referred to Liyanage and said at 250:
“The legislation in question was of an unusual character, it constituted a marked interference with the judicial process and circumscribed the judicial function and the discretions incidental to it.”
Can it be said that s 31(8) impermissibly usurps, interferes with or circumscribes a discretion incidental to the exercise of the judicial power of the Commonwealth?
Perhaps the most frequently cited test for legislative usurpation is “a law which requires or authorises the courts … to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power”. (Chu Kheng Lim v Minister of Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27 per Brennan, Deane and Gaudron JJ) Their Honours concluded that it would be an “impermissible intrusion into the judicial power … for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction”. (Chu Kheng Lim supra at 37.)
Can it be said that s 31(8) impermissibly requires the exercise of judicial power in a manner inconsistent with the essential character of a court, or that it purports to direct the courts as to the manner of the exercise of their jurisdiction?
The most recent formulation of this principle is in the joint judgment of Gummow and Crennan JJ in Thomas v Mowbray [2007] HCA 33; (2007) 81 ALJR 1414 at [111], with whom Callinan J (at [600]) and Heydon J (at [651]) relevantly agreed:
“… [I]t may be accepted for present purposes that legislation which requires a court exercising federal jurisdiction to depart to a significant degree from the methods and standards which have characterised judicial activities in the past may be repugnant to Ch III.”
Can it be said that s 31(8) departs to a significant degree from “the methods and standards” of traditional judicial activity?
Various statements appear in the authorities identifying the essential characteristics of the judicial process, which the Parliament cannot modify without infringing the separation of powers in Ch III of the Constitution. (See eg. R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374; Fencott v Muller (1983) 152 CLR 570 at 608; Harris v Caladine (1991) 172 CLR 84 at 150; Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334 at [45]-[46], [56]. Legislation which tilts the balancing exercise involved in the equivalent of determining a public interest immunity claim does not, in my opinion, fall within any of these statements.
The case which is closest to the issue raised on this appeal is Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, where the High Court upheld the constitutional validity of legislation permitting the admissibility of evidence obtained in circumstances where law enforcement officers had committed a criminal offence in a “controlled operation”. The legislation limited the exercise of the Court’s discretion to exclude such unlawfully obtained evidence, a discretion affirmed by the High Court in Ridgeway v The Queen (1995) 184 CLR 19.
The limitation enacted as s 15X of the Crimes Act 1914 (Cth), and upheld in Nicholas, was directed, in terms, to the admissibility of evidence. It relevantly provided: “In determining … whether evidence that narcotic goods were imported … should be admitted, the fact that a law enforcement officer committed an offence … is to be disregarded …” if certain conditions are met. Section 15X was of significance for controlled operations which occurred before commencement of the Act, other provisions of which had the effect of decriminalising the involvement of a law enforcement officer in a later controlled operation.
Section 15X did not abolish the relevant discretion. It removed an element, albeit a particularly pertinent, indeed critical, element, from the process of exercising the discretion.
Four of the majority judgments in Nicholas (Brennan CJ, Toohey, Gummow and Hayne JJ) emphasised that s 15X limited the discretion of the Court to exclude evidence and that the common law of evidence had often been changed by legislation. (See at [23]-[24], [25]-[26], [53], [55], [151]. [161]-[162], [235]-[236], [238].)
The obtaining of evidence is the principal legitimate forensic purpose of a subpoena to produce documents, and the approach applicable to the admissibility of evidence offers a close analogy to the present case. Like s 15X considered in Nicholas, s 31(8) of the NSI Act, is a rule which limits the discretion of the court, relevantly, with respect to access to documents as distinct from admissibility. The reasoning of the majority judgments in Nicholas is, in my opinion, applicable. Disclosure of documents involves a matter of procedure, which has also frequently been amended by legislation.
This conclusion is reinforced by the emphasis in the four majority judgments in Nicholas to the effect that the discretion, upon which the legislation impinged, involved the balancing of conflicting public policy considerations. Their Honours accepted that the alteration of the way the balance should be struck in that case did not constitute an impermissible usurpation of the judicial power ([35]-[36], [55], [159]-[160], [164], [234], [244]).
As Gummow J put it at [160]:
“The legislature has now … struck a different balance between these competing interests.”
And as Hayne J said at [238]:
“In the case of this particular discretion, the exercise of which depends upon the balancing of competing considerations, I see no intrusions on the judicial power by the legislature saying that in some kinds of case, one consideration (that of preserving the reputation of the courts by their not being seen to condone law breaking) is to be put to one side in favour of the consideration that persons committing a particular kind of crime should be convicted and punished.”
A similar approach is, in my opinion applicable to s 31(8) of the NSI Act. The legislature has “struck a different balance”. It has, to some degree, “put to one side” the public and private interest in obtaining all potentially relevant information, “in favour of” the public interest in national security. This, in my opinion, is constitutionally permissible.
I have discussed the process of balancing competing interests above. As I have noted, in certain areas the common law has tilted the balance. Doing so does not alter the essential quality of the task being performed. If the legislature tilts the balance in some way, it cannot be said that doing so is “inconsistent with the essential character of a court or with the nature of judicial power” (Chu Kheng Lim); nor that it interferes with the judicial process itself or “circumscribes a discretion incidental to the judicial process” (Australian Building Construction Employees’); nor that it constitutes, a “direction to the courts as to the manner of the exercises of jurisdiction” (Chu Kheng Lim); nor that it requires the court “to depart to a significant degree from the methods and standards which have characterised judicial activity” (Thomas v Mowbray).
Claims for public interest immunity require the balancing of the public interest in non-disclosure against the public interest in the administration of justice, reflecting the cognate private interest to ensure disclosure of all facts which may directly or indirectly be relevant to a trial. The statutory scheme of the NSI Act is analogous to such a claim.
It is characteristic of all the forms of privilege which the common law has long recognised, that potentially relevant facts will be withheld from a litigant. A successful claim of public interest immunity is one example of such an effect. The legislative tilting of the balance, accepted in Nicholas is, in this respect, similar to the tilting of the balance by s 31(8) of the NSI Act.
The final aspect of the majority judgments in Nicholas, to which I wish to draw attention are the references to the protection of “the integrity of the judicial process.” (See at [37], [167], [234], [286], [239], [240].) In particular, Gummow J said at [167]:
“… [V]iews of public policy may differ, as the judgments in the divided Court in Ridgeway demonstrate. For the legislature to prefer one such view to another is not, of itself, to undermine, in a constitutionally impermissible manner, the integrity of the judicial process in the exercise of the judicial power of the Commonwealth.”
This emphasis on integrity of the judicial process is similar to the emphasis now given to institutional integrity with respect to the cognate principle applicable to powers or functions that are incompatible with the exercise of judicial power. (See Fardon v Attorney General of Queensland [2004] HCA 46; (2004) 223 CLR 575 at [15], [23], [37], [101], [219]). Indeed Gummow J described “institutional integrity” as the “touchstone” of this principle. (See also Powercoal Pty Ltd v Industrial Relations Commission of New South Wales [2005] NSWCA 345; (2005) 64 NSWLR 406 at [42]-[45]).
The modification of judicial procedures by legislation should not be characterised as a legislative usurpation of judicial power, unless it affects the integrity of the judicial process. As noted above, in certain contexts the common law tilts a balancing process without effect on the integrity of the process. Legislation can also do so, without necessarily having such an effect.
This focus on whether the integrity of the process has been compromised confirms the conclusion to which I have come above. Tilting the balance with respect to the formulation of a broad evaluative judgment, upon which reasonable minds may differ, does not impinge upon the integrity of the process by which the judgment is formed. It may affect the outcome of the process but not in such a way as to affect its integrity.
Right to a Fair Trial
The appellant, alternatively, relied upon what he described as the constitutional right to a fair trial. The authority upon which the appellant relied in this regard was the judgment of Deane J in Dietrich v The Queen (1992) 177 CLR 292 at 326. This passage has not been authoritatively adopted. The High Court has not recognised a right to a fair trial as a free standing right.
It is unnecessary to pursue this alternative argument in detail. In my opinion, even if there were such a constitutional right, s 31(8) would not constitute an infringement of it, for the same reasons I have given above for concluding that there was no legislative usurpation of the judicial process.
I repeat, and emphasise, that all claims for privilege, which the common law has long recognised, necessarily involve the withholding of potentially relevant evidence, even from defendants in a criminal trial. So, in Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121, a claim for legal professional privilege was upheld even where documents could establish the innocence of an accused or materially assist his defence.
A successful claim for public interest immunity does not contradict such right to a fair trial as may exist under the Constitution. The legislative tilting of the balancing process by s 31(8) of that Act, in my opinion, does not constitute so significant a change as to have such an effect.
The Sentence Appeal
The facts and submissions relevant to the sentence appeal are set out by Price J whose judgment I have read in draft. Subject to the following observations I agree with his Honour’s judgment.
The sentence imposed is a substantial one, particularly in view of the fact that there was no actual injury to persons or property. Nevertheless, as Price J emphasises, the provisions creating the offence are directed to preparatory acts and the seriousness with which Parliament regards such acts is manifest in the maximum penalty. By the extended range of conduct which is subject to criminal sanction, going well beyond conduct hitherto generally regarded as criminal, and by the maximum penalties provided, the Parliament has indicated that, in contemporary circumstances, the threat of terrorist activity, requires condign punishment.
The statutory guidepost for the exercise of the sentencing discretion is provided by s 16A(1) of the Crimes Act 1914 (Cth):
“16A(1) In determining the sentence to be passed, or the order to be made, in respect of any person 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.”
The very generality of the language – “a severity appropriate in all the circumstances of the offence” – indicates the breadth of the discretion conferred upon the sentencing judge. In this formulation the Parliament has indicated that the sentencing principles developed at common law, rather than the various provisions in State legislation, should apply to sentencing for Commonwealth offences. (See Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [15].)
The Australian common law of sentencing is based on the principle of proportionality which requires that a sentence should not exceed what is proportionate to the gravity of the crime. The basic authority in this regard remains Veen v The Queen (No 2) (1988) 164 CLR 465. The references in the joint judgment in that case to the protection of society are of particular significance for purposes of the exercise of the sentencing discretion in a case such as the present. It is the weight that is appropriate to be given to this element that, in my opinion, justifies the significant sentence imposed by Whealy J upon the appellant.
The objective acts of the appellant, which did not go beyond collecting materials for future use, did not give rise to any imminent, let alone actual, threat of personal injury or damage to property. Such preparatory acts, even though criminalised, would not at first appear to justify so substantial a penalty. However, the position is different in the light of his Honour’s clear and justifiable findings of fact that the appellant has not resiled from the extremist intention with which these acts were performed.
As Price J notes, the issues involved in sentencing for offences of this character were considered by the Court of Criminal Appeal of Western Australia in R v Roche [2005] WASCA 4; (2005) 188 FLR 336. I agree with the observations made by Price J about that judgment.
Roche was not, however, the first Court of Criminal Appeal to consider in detail sentencing principles relevant to crimes of this character. In R v Sakr (1987) 31 A Crim R 444 the Court of Criminal Appeal of Victoria was concerned with an offender who had placed explosive devices with intent to cause an explosion likely to endanger life or cause serious injury to property. The offence in that case was motivated by financial considerations and, accordingly, issues of personal deterrence were relevant in a manner which, for reasons I will discuss below, are not as pertinent to the offence presently under consideration.
In that context Crockett J said at 451:
“The use of bombs and explosives is the trademark of the terrorist, whose acts of lawlessness have engendered a special revulsion that is due not only to the fact that death is so often the intention of the perpetrator, but also because the recklessness with which the offence is, by its very nature, invested is so likely to lead to the loss of innocent lives and, less importantly, to the destruction of the property of innocent third persons. It is an offence that is callous in its conception, wanton in its perpetration and, if the intent is given effect to ruthlessly destructive in its aftermath. It is a crime that is relatively novel in this country, as I have already indicated, and yet it is plain that there is a community recognition that it is regarded with a particular repugnance because its commission represents a profound assault upon a stable society and the law and the law and order that is necessary for that society’s survival. Those responsible for such reprehensible conduct must expect to suffer condign punishment.
If ever there were a case in which the nature of the offence and the circumstances of its commission, called for a deterrent penalty, then this is that case. The court is justified in believing that the community would expect that the punishment to be imposed should mark its intention, so far as it might be within the power of the court to do so, to arrest the incipient growth of terrorist-style criminal activity in this community.”
I agree with these observations. The reference to deterrence in this passage was, no doubt, a reference to both general and specific deterrence. However, deterrence in both respects may, in many cases, be entitled to less weight whenever it appears, as the example of suicide bombers suggests, that the force of an ideological or religious motivation is such that deterrence is unlikely to work.
The crimes under consideration in the present case, in which the conduct must occur with the “intention of advancing a political, religious or ideological cause” (Div 100.1), together with the findings of fact made by Whealy J, suggest that deterrence is of less significance than usual. In such a context, the element of protection of the community is entitled to greater weight than may otherwise be appropriate.

In R v Martin (1999) 1 Cr App R (S) 477 at 480, Lord Bingham CJ, as the Senior Law Lord then was, said: “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”.
In Roche McKechnie J, with whom Murray ACJ agreed, quoted this sentence at [112], and adopted as one of the sentencing principles applicable to a case of this character at [119]:
“For the most serious terrorist offences the sentence must be of a severity appropriate to the circumstances. The object of the sentence is to punish, deter and incapacitate.”
Although it is necessary to treat remarks made in a different statutory context with care I note that in R v Parole Board ex parte Smith [2005] UKHL 1 at [23] Lord Bingham referred to “the well-known objects of a custodial sentence (retribution, personal and general deterrence, incapacitation, reform, rehabilitation). But the predominant purpose of the sentence will be punitive …”.
I will refer below to some aspects of the debate about the role of incapacitation in the exercise of a sentencing discretion. However, for purposes of its application in Australian law, this element should be understood as encompassed by the element of “protection of the community”, recognised as a separate element by the High Court in Veen (No 2).
There is authority in Australia which suggests that “protection of the community” is an overall umbrella identifying the purpose of all of the different elements traditionally listed as matters to which consideration must be given in the exercise of a sentencing discretion. Those matters include punishment, general and specific deterrence, and rehabilitation, but not, in Australian authority, separate reference to an element of incapacitation. The authorities which adopt community protection as an umbrella, rather than as a separate element, include the frequently cited judgments of R v Cuthbert [1967] 2 NSWR 329 at 330, and TheQueen v Radich [1954] NZLR 86 at 87.
However, the analysis by the High Court in Veen (No 2) clearly treats the element of protection of the community as separate. In Veen (No 2) the joint judgment expressly stated at 476:
“The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case.”
Similarly at 477 the joint judgment referred to a particular circumstance in which: “retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted”.
The joint judgment made it clear that the principle of proportionality required the element of “protection of society” to be taken into account as a separate matter, but not in such a way as would fail to give appropriate weight to other factors. The joint judgment said at 473:
“It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.”
The reference to “merely to protect society” and “merely by way of preventive detention” indicates that the “protection of society” is a relevant consideration and, in appropriate circumstances, will be entitled to weight.
Mason CJ, who was part of the majority in Veen (No 2), had made pertinent observations in the first case, which are consistent with the joint judgment in the second. His Honour observed:
“The protection of the community from violent crime, it has always been recognized, is a very important factor to be taken into account in sentencing. It would be surprising if it were otherwise. The court must, in sentencing a person who has been convicted of a very serious offence involving violence, if his record and the expert evidence plainly demonstrate that there is a real likelihood of his committing that kind of offence again if he is restored to liberty, ensure by the order which it makes that he will not be released whilst that likelihood continues. If it should appear that the propensities or predilections of the person convicted are such that the imposition of life imprisonment is necessary to protect the community from violent harm, then the court should impose that penalty. In the case of a very serious offence involving violence, it will rarely transpire, if at all, that a sentence of life imprisonment is disproportionate to the offence of which the prisoner has been convicted, given that he has a prior record of conviction for that class of offence and that he has a propensity, because he is unstable or disordered, to commit violent crime.
In saying this it is not my intention to deny, or derogate from, the principle that the punishment to be inflicted must be proportionate to the crime. Rather it is my purpose to say that the conflict between that principle and the object of protecting the community arises in relation to less serious offences where the proportionality principle inhibits the imposition of a long term sentence which might otherwise be thought necessary to protect the community.” (Veen v The Queen (1979) 143 CLR 459 at 467-468.)
Subsequent authority in the High Court similarly appears to regard protection of society as a distinct element.
In Bugmy v The Queen (1990) 169 CLR 525 at [16] Mason CJ and McHugh J said:
“ … Factors such as deterrence of others from crime and the protection of society from the prisoner would assume a secondary importance to the individual welfare of the prisoner.”
In AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 McHugh J said at [14]:
“Many, probably a large bulk of, sentences reflect compromises between conflicting objectives of sentencing. One objective is to impose a sentence that reflects adequate punishment for the culpability of the convicted person, having regard to the community’s view concerning the need for retribution, denunciation, deterrence, community protection and sometimes vindication.”
In Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 at [147] Hayne J said:
“ … [M]uch weight was to be given to considerations of denunciation and general deterrence as well as to questions of community protection.” [Emphasis added]
In Fardon v Attorney General of Queensland [2004] HCA 46; (2004) 223 CLR 575 Gleeson CJ said:
“[20] … [A]s Veen (No 2) held, common law sentencing principles have long accepted protection of the community as a relevant sentencing consideration.”
To similar effect, in Thomas v Mowbray [2007] HCA 33; (2007) 81 ALJR 1414 at [109] Gummow and Crennan JJ quoted the first of the extracts I have quoted above from Veen (No 2) at 476 and said:
“[109] The protection of the public as a purpose of decision-making is not alien to the adjudicative process. For example, it looms large in sentencing after the determination of criminal guilt.”
The reference in Veen (No 2) to preventive detention reflects a controversial aspect of the acceptance of incapacitation, being the terminology that Lord Bingham used in the context of sentencing for terrorist offences, which has been debated in the sentencing literature and in a number of judgments. (See e.g. Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 at 305 per Kirby J.)
The difficulty of predicting future behaviour, which is in any event inherent in other sentencing principles including general and personal deterrence and rehabilitation, is often referred to as one of the defects of reliance on individual incapacitation as a basis for increasing the severity of a sentence. The other significant issue is the sense of unfairness of punishing a person not for what they have done, but for what they may do in the future. (See generally Franklin Zimring and Gordon Hawkins Incapacitation: Penal Confinement and the Restraint of Crime (1995) Oxford University Press, New York, at 62ff; Andrew Ashworth “Criminal Justice Act 2003 (2) Criminal Justice Reform: Principles Human Rights and Public Prosecutions” (2004) Criminal Law Review 516 esp at 519-521; Mirko Bagaric “Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals?” (2000) 20 Criminal Law Journal 21 esp at 28-29; Andrew von Hirsch and Andrew Ashworth Principled Sentencing: Readings on Theory and Policy (1998) Hart Publishing, Oxford Ch 3; Andrew Ashworth Sentencing and Criminal Justice 4th ed (2005) Cambridge University Press, Cambridge at 80ff.)
In this respect it is pertinent to note the observations of Gleeson CJ in Fardon supra at 589-590:
“The way in which the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release is an almost intractable problem. No doubt, predictions of future danger may be unreliable, but, as the case of Veen shows, they may also be right. Common law sentencing principles, and some legislative regimes, permit or require such predictions at the time of sentencing, which will often be many years before possible release. If, as a matter of policy, the unreliability of such predictions is a significant factor, it is not necessarily surprising to find a legislature attempting to postpone the time for prediction until closer to the point of release.”
In the context of the crimes presently under consideration, incapacitation does not merely refer to the prospect that in the future a particular offender will re-offend. With respect to the crime of preparation for terrorist acts the Court is not simply concerned with future criminal conduct of a recidivist character. It is concerned with the possibility of perfection of the very crime for the preparation of which the offender has been found guilty.
Accordingly, the issue is not merely one of punishing an offender for something s/he may do in the future. It is the recognition that the protection of society requires the offender to be prevented from perpetrating the offences which s/he was preparing to commit. Giving the element of protection of society substantial weight, particularly in a context where personal deterrence and rehabilitation are, given the nature of the offence and the findings of fact, entitled to little weight, is consistent with the principle of proportionality laid down in Veen (No 2).
For these reasons I agree that the sentences imposed were well within the exercise of the sentencing discretion by the sentencing judge. The protection of the community required a substantial sentence and his Honour was correct to impose one.
Conclusion
For the above reasons I agree that the appeal should be dismissed.

BARR J: The appellant, Faheem Khalid Lodhi, was tried before Whealy J and a jury on four charges, namely that -
1. On or about 3 October 2003 at Sydney he collected documents, namely two maps of the Australian electricity supply system, which were connected with preparation for a terrorist act, knowing the said connection;
2. On or about 10 October at Sydney he intentionally did an act in preparation for a terrorist act, namely sought information concerning the availability of materials capable of being used for the manufacture of explosives or incendiary devices;
3. On or about 24 October 2003 at Sydney he made documents, namely a set of aerial photographs of certain Australian defence establishments, which were connected with preparation for a terrorist act, knowing the said connection; and
4. On or about 26 October 2003 at Sydney he possessed a thing, namely a document containing information concerning the ingredients for and the method of manufacture of poisons, explosives, detonators and incendiary devices and concerning “intelligence” which was connected with preparation for a terrorist act, knowing the said connection.
The jury found the appellant guilty of the offences charged in the first, second and fourth counts and not guilty of the offence charged in the third count.
His Honour sentenced the appellant to twenty years’ imprisonment on the first count and ten years’ imprisonment on each of the second and fourth counts, each sentence to commence at the same time. There was thus an effective sentence of twenty years’ imprisonment. His Honour fixed a non-parole period of fifteen years.
The appellant appeals against the convictions and seeks leave to appeal against the sentences.
The facts
The facts found by his Honour were as follows: [2006] NSWSC 691 at [8] – [36] -
In mid-May 2003 a French citizen, one Willie Brigitte, arrived in Australia. This man, I accept, had trained at a Lashkar-e-Taiba paramilitary training camp in Pakistan in late 2001. One of his fellow trainees, Yong Ke Kwon, gave evidence in the trial about his own training at the Lashkar-e-Taiba camp and his meeting there and relationship with a man he knew as Salahudin. He identified Salahudin from a photograph of Willie Brigitte shown to him in November 2003. The organisation Lashkar-e-Taiba has now been prescribed as a terrorist organisation by the Australian Government and it is also regarded in this light by the Government of Pakistan. Its primary focus is on the removal of Indian security forces from India controlled Kashmir. But it has a broader interest in terrorism generally and may, perhaps, have had some links with the terrorist organisation al-Qaeda. It is clear, however, that military and religious training occurred in the Le-T camp attended by both Brigitte and Kwon; and that the training related not only to the local situation but was intended to aid in the battle against oppression of Muslim communities elsewhere.
There is very little detailed evidence about Willie Brigitte’s activities while he was here in Australia. This much however is clear: a few days before he arrived in Australia, the offender set up a mobile phone service in a false name. It has been referred to throughout the trial as the “Sam Praveen” telephone service. Two calls were made from Willie Brigitte’s phone in France to the Sam Praveen telephone service. The first occurred on 7 May 2003, a day or so after the offender had obtained the service. The second of these calls was made on 13 May 2003, the day before Brigitte left France for Australia. There was also evidence to show that, although the offender had never met Willie Brigitte, arrangements had been made for him to meet and collect him on the day of his arrival in Sydney. This is, in fact, what happened and two the men spent most of the day together.
The connecting link between the offender and Willie Brigitte appears to be a somewhat shadowy figure in Pakistan known to both men. His name was “Sajid”. The offender said he met him in Pakistan at a mosque during visits there in 2002 and 2003. The offender said it was Sajid who asked him to look after Willie Brigitte on his arrival in Australia. I have no doubt that this was so. I do not accept, however, that the relationship between the two men was an innocent one, as the offender endeavoured to explain it. His version was that he gave assistance to Willie Brigitte as a matter of courtesy to a stranger travelling in a new country; and that he did so at the behest of a mutual friend who had asked that such courtesy be extended. In my view, the evidence establishes that Sajid was endeavouring to co-ordinate a liaison between the offender and Willie Brigitte in Sydney so that, in general terms, the prospect of terrorist actions in Australia could be explored.
I should say immediately that there is no evidence to indicate precisely what Brigitte’s role was to be in relation to any terrorist activity. There is no evidence to indicate, for example, that he himself was to be involved in the commission of any of the three offences in respect of which the offender has been found guilty. But there was a continuing association between the offender and Willie Brigitte during his short stay in Australia. This is exemplified by a number of calls made by an Australian Mobile phone service associated with Brigitte (again in a false name, known during the trial as the “John Huck” telephone service) to the “Sam Praveen” telephone service.
There is also evidence that Willie Brigitte’s French telephone service made approximately nineteen telephone calls to Sajid in Pakistan before Brigitte left for Australia. After Willie Brigitte’s detention and deportation from Australia, there was evidence that the offender telephoned Sajid’s telephone number from a public phone box in Campsie. This occurred after the offender had been at an Internet Café with one Abdul Rakib Hasan. Hasan, who worked in a Halal butcher’s shop at Lakemba, also knew Brigitte.
There was also evidence that the offender and Hasan visited Brigitte at his flat at Boorea Avenue, Lakemba on at least two occasions. Although the evidence does not enable me to discover the details of what transpired between the offender and Willie Brigitte, I am satisfied beyond reasonable doubt that the relationship was not an innocent one. I am also satisfied that the connecting link between the two men was their joint interest in contemplating and discussing the possibility of some type of terrorist activity in Australia. This association came to an abrupt end in October 2003 in circumstances that achieved considerable notoriety in the Australian media. French authorities had notified Australian Intelligence that Brigitte had a substantial connection with terrorism and this, so it appears, led to his sudden detention and swift deportation from Australia to France. It seems that he is still in France awaiting determination as to whether he is to face terrorism charges under the laws in that country relating to his activities in France or elsewhere. Brigitte gave no evidence in the trial.
A little under a week before Brigitte’s detention took place, the offender obtained a desk map and a wall map of the electrical supply system from Energy Supply at Level 6, 208 Pitt Street Sydney. He told Ms Bakla, who worked for the organisation, that he was starting a business and that he wanted to place a wall map in his office. The offender was asked to fill out a form giving his name, address and company name. The name he wrote down was “M Rasul”. His position was given as “partner”; and the company name as “Rasul Electrical”. The postal address given was “Post Office Box 2359 Smithfield”. The telephone number, which was altered by Ms Bakla to include an additional 9, was 9230.051.
There was no contest at trial that it was, in fact, the offender who made these enquiries and that it was he who was supplied with the maps. The offender explained before the jury that his obtaining of the maps had nothing whatsoever to do with terrorist related activities. In fact, he said that he wanted them for a business of an electrical nature he was proposing to establish. The offender expressly disclaimed any intention that these maps were connected with, or in any way involved in or part of any plot, to carry out a terrorist act against the Electricity Supply System. The offender also explained why he filled out the application form in the way he did. The Post Office Box address and the telephone number were simply errors. The name “Rasul” or “Mohamed Rasul” was to be part of the name he proposed to give the electrical company when it was established.
Consistently with the jury’s verdicts, I find that these explanations and excuses were untrue. The real reason the offender gave a false name, telephone number and address was that he did not want his own identity to be known. This was because his plain purpose in securing the maps related to an intention he held at the time to use the maps in connection with a proposal for an enterprise that would involve bombing part of the Australian Electricity Supply System.
Not only did the offender intend to use the maps for this purpose when he collected them, it was also his intention that any bombing of the electrical system by the detonation of a homemade explosive or incendiary device would be done to advance the cause of violent jihad and be carried out so as to intimidate the Government of Australia and the Australian public.
The offender’s association with Willie Brigitte and the man Sajid in Pakistan were not the only matters relevant to the existence of these intentions. There was also found in his possession a significant amount of material which threw considerable light on his intentions in relation to these offences. The material included a CD-Rom which was described, throughout the trial, as the “jihadi CD”. This was a virtual library containing exhortations to violent jihad, justifications for suicide bombings (called “martyrdom” in the text of the material), and which extolled the virtues of those who had given their lives to the murder of innocent civilians and others in the name of extremist Islam. Much of the material exhorted the reader or listener to follow, or at least support violent jihad. In addition to this CD, there were two volumes of the Lion of Allah, other material and Chechnyan videocassette glorifying those who had given their lives in the fight between Chechnya and Russia.
The offender told the jury that he had never seen the “jihadi CD” and that he could not explain its presence in the material found near his computer at home. Although he acknowledged the existence of some of the other material I have mentioned, he explained that he had either not seen it or, if he had seen it, it was only in part and that he had generally little to do with the contents.
20 I do not accept these explanations. Nor do I accept the offender’s attempts to distance himself from the material so obviously found in his possession. Rather, I think the truth is that all this material makes it clear that the offender is a person who has, in recent years, been essentially informed by the concept of violent jihad and the glorification of Muslim heroes who have fought and died for jihad, either in a local or broader context. The material is eloquent as to the ideas and emotions that must have been foremost in the offender’s mind throughout October 2003 and later, at least until the time of his arrest.
Although these specific intentions were, I am satisfied beyond reasonable doubt, at the forefront of the offender’s mind when he collected the maps, it seems clear that he had not at that stage necessarily made a final determination as to the precise target, or the precise area of the target, that was to be hit. Indeed, the maps themselves would not have given sufficient information to the offender. Nor would they, of themselves, have given sufficient insight into how such an attack upon the electrical system could be maintained. They were, however, a starting point for a terrorist related enterprise potentially of some considerable magnitude.
Of further relevance to this first offence, and indeed, to each offence found proven against the offender, was the material located at his workstation during the execution of a search warrant on 26 October 2003. This comprised 15 pages of carefully written out handwriting in the Urdu language, or at least in the Urdu script. It was not disputed that this document was in the handwriting of the offender. He explained that, many years earlier, he had seen this material written in English on a computer he was using at University during the course of his studies. Although he maintained that the information was of no special interest to him, it is obvious that he must have spent several hours writing out the material he selected from the computer screen. He then kept it in his possession for a considerable time afterwards. The offender maintained that he had forgotten about this material and that it had found its way to his workplace by accident, as it were.
I reject the offender’s explanation for the possession of this document. Moreover, I find that its contents were central to his thinking and state of mind at least during 2003 and thereafter. The offender’s attempt to explain or justify his possession of this material was simply incredible.
These 15 pages were fairly described by the Crown in its submissions before the jury as “a terrorism manual for the manufacture of homemade poisons, explosives, detonators and incendiary devices”. Although the recipes were not particularly sophisticated or scientific, they included formulas for homemade grenades, petrol bombs and, relevantly for this present purpose, an explosive device containing an explosive known as urea nitrate. This particular explosive could be easily made, as the evidence of Dr Spears and Mr Taylor showed during the trial. Once detonated, it had the capacity for significant damage to property and for substantial loss of life for those who may have been in the vicinity when the explosion occurred. This situation, of course, would depend on the size of the urea nitrate parcel detonated.
Throughout the trial, a central issue for the jury’s determination had been the state of mind or the intentions of the offender. The contents of these documents, Exhibit “G” and its English translation Exhibit “H”, make it plain beyond reasonable doubt that, when he collected the wall maps from Ms Bakla at Energy Supply, the subject of homemade bombs or explosives was likely to have been at the forefront of his thinking.
I am not satisfied beyond reasonable doubt, however, that the offender had at any time made up his mind that it would be he who would carry out the bombing of the Australian Electrical Supply System. Indeed, I am perfectly satisfied that the proposal had not reached the stage where the identity of a bomber, the precise area to be bombed or the manner in which the bombing would take place, had been worked out. The obtaining of the electrical maps was at a very preliminary stage indeed, a matter, which the Crown accepted throughout the presentation of its case to the jury.
The day after Willie Brigitte’s detention commenced, the offender exchanged faxes with one Melissa Phelps. She was an employee of Deltrex Chemicals. Here again, he used a false name and a fictitious address. The fax-headed sheet he created was this time that of a non-existent business called “Eagle Flyers”. It had a Post Office box “2286 Smithfield”. This was a fictitious business identity in all respects although, of course, the fax number of the firm of Thomson Adsett Architects was given to Ms Phelps. It is also of interest to note that the offender, in making the enquiry, spelt his first name differently from its usual spelling; and he signed his name with a signature which was not his usual signature.
The offender told Ms Phelps that he was going to start up a detergent business. He gave Ms Phelps a list of the chemicals he wanted. Ultimately a price list for certain chemicals was sent by Ms Phelps to “Fahim” at Thomson Adsett. It became Exhibit “J” in the trial. The price list contained and included chemicals which were to be found on the Urdu document Exhibit “G”. In particular, the list gave prices for minimum quantities of urea and nitric acid, the components for a urea nitrate homemade bomb.
Exhibit “J” was not however received by the offender. It found its way to Ms Kenny, his superior, at work. Ms Kenny confronted the offender. She asked him whether the document had anything to do with his work. He told her that it did not. It has to do, he said, with his family company. He explained to her that his fax was broken and he needed to use the work fax for “family company business”.
Before the jury, the offender gave a similar explanation. He explained that he had a proposal for exporting chemicals to Pakistan. Indeed, there was other evidence in the trial, from his family in Pakistan and other people, that at one stage he had contemplated some sort of business venture, which would involve the exporting of certain chemicals from Australia.
I am satisfied beyond reasonable doubt, however, that the explanation given to the jury for the offender’s obtaining the price list of chemicals from Deltrex Chemicals was a false explanation. The truth of the matter was that he wanted the information to assist in his proposal for planning and carrying out a bombing enterprise within Australia as part of a terrorist act. Again, it is quite possible, as at 10 October 2003, that the offender may well have still had in contemplation the bombing of part of the Electrical Supply System. It is not possible to say, however, that when the enquiries were made of Deltrex Chemicals, the precise target had been selected. As before, it is clear that the planning was at a very preliminary stage. I am not satisfied beyond reasonable doubt that the offender intended that he himself would necessarily assemble the bomb or that he would be the bomb carrier when it came time to place it at or near the ultimate target. But I am satisfied beyond reasonable doubt that his role in the enterprise was an important one. This is evidenced by the fact that it was he who was making the enquiry to Deltrex Chemicals, albeit using a false name. Once again the offender gave an explanation as to why he used the name “Eagle Flyers”. Once again, he claimed that a mistake had simply been made in the postal address.
I do not accept these explanations as true. To the contrary, I find that they were patently false.
I am satisfied beyond reasonable doubt that the offender’s intentions in obtaining the list of chemicals was in contemplation for an action that he intended would be carried out to advance the cause of violent jihad. The information was sought with the intention on his part to influence by intimidation the Government of Australia and to intimidate the public.
The third and final offence relates to the offender’s possession of the Urdu document Exhibit “G”. This was found, as I have said, at his workstation on 26 October 2003. The offender, as I have already recounted, endeavoured to distance himself from this document before the jury. It is quite apparent however, that the jury did not accept his explanation. Consistently with the jury’s verdict, I do not accept his explanation and reject it. Indeed, the offender’s explanation in relation to the way in which this document came into existence and the reasons for his possession of it through until October 2003 were, as I have said, simply unbelievable.
I am satisfied beyond reasonable doubt that the offender’s possession of this document reflected very clearly his intention to make use of its contents for the purpose of using the information to assist in an enterprise to assemble an explosive which would be used as part and parcel of the ultimate carrying out of an act of terror within Australia. I am satisfied that his intention or state of mind at the time it was found in his possession, and indeed prior to that time and well after, was that the material could be used to advance the cause of violent jihad in Australia. Moreover, I am satisfied beyond reasonable doubt that it was the offender’s intention that any such enterprise would be carried out to coerce, or influence by intimidation, the Government of Australia and to intimidate the public.
I am not satisfied beyond reasonable doubt, however, that the offender had formulated any intention as at 26 October 2003 to poison any person or to cause the death of any person by the use of poison. Rather, I think the document Exhibit “G” reflected a range of options. Any one of these would have been available for the carrying out of an act of terror but, so far as the offender’s personal intentions were concerned, he favoured the use of an explosive or explosive device. I am satisfied beyond reasonable doubt that in relation to each of the three offences, the offender contemplated that the ultimate act of terror would, at least, cause serious damage to property. I cannot be satisfied beyond reasonable doubt that, at this very preliminary stage, a definite intention had been formulated to use an explosive to kill innocent people. I am satisfied, however, that the offender would have been aware, or at least would have contemplated, that, by using an explosive to damage property or infrastructure, there would have been a risk of serious physical harm to people who might be in the vicinity; and that even death might be occasioned to persons who happened to be close to the site of the explosion.

Ground 1 of the sentence appeal raises the issue of Whealy J’s assessment of the appellant’s criminal culpability which he found to be “at a high level, although falling short of the worst category of case” R vLodhi [2006] NSWSC 691 at [55].
In assessing the level of criminal culpability involved his Honour was satisfied beyond reasonable doubt:
(i)The assembling of the 15 page Urdu document, the act of writing it out in the Urdu language, the efforts put into the purchasing of the electricity supply maps from the ESAA and the enquires to Deltrex Chemicals demonstrated a significant degree of premeditation and planning.
(ii)At the time of the collection of the ESAA maps and of the enquiries made to Deltrex Chemicals the appellant had in mind an ultimate act which would involve the detonation of an explosive so as to cause at least very serious damage to property.
(iii)The appellant would have been aware, or at least would have contemplated, there was a risk of serious physical harm or death to persons in the vicinity.
(iv)It was clearly the jury’s conclusion that, at the relevant times, the appellant intended to obtain the maps and the list of chemicals with a view to their use in a plot to cause the detonation of an explosive or explosives that would advance the cause of violent jihad and intimidate the government and the public.
(v)In the circumstances of all three offences, there was one continuing uninterrupted course of conduct centring upon an enterprise to blow up a building or infrastructure.
(vi)The appellant maintained a general intention relating to terrorist activities at least up until the time of his arrest.
(vii)The action carried out by the appellant may properly be regarded as at a very early stage of any terror related enterprise.
(viii)The appellant’s actions displayed an intention on his part that a violent terrorist act or acts would be carried out in Australia. This was intended, in effect, to be a general attack on the community as a whole.
Mr Boulten SC had contended before Whealy J that the appellant’s culpability was at a low level. One of the reasons advanced was that the appellant held the requisite intentions for a very limited period of time and certainly not beyond the date of the seizure of the Urdu document on 26 October 2003. The Judge rejected this argument and found, as has been recited, that a general intention relating to terrorist activities was maintained at least up until the time of his arrest. Whealy J said in rejecting the appellant’s contention:
“…There is not the slightest evidence to suggest that he had renounced his former intentions. They were, I am satisfied beyond reasonable doubt, intentions he held with great vigour and firmness. They were the consequence of a deeply fanatical, but sincerely held, religious and worldview based on his faith and his attitude to the extreme dictates of fundamentalist Islamic propositions. It is hardly likely that a handful of searches and bout of questioning, unnerving though they doubtless were, would have led him to renounce the views, so deeply held by him”: Lodhi at [49].
The appellant submits that his Honour was in error in making this finding. It is common ground that no criminal or terrorist related activity had been observed of the appellant between 26 October 2003 and the date in late April 2004 when the appellant was arrested. Mr Boulten SC submits that the evidence was not available to conclude that, even six months after the appellant became aware of the interest of the police and authorities, he still maintained an intention to carry out any terrorist activity.
His Honour had earlier referred to the appellant’s association with Willie Brigitte, the man Sajid in Pakistan and to the material in the CD- rom described throughout the trial as the “jihadi CD”. The Judge found that the material made it clear that the appellant was a person who in recent years had been informed by the concept of a violent jihad and the glorification of Muslim heroes who fought and died for jihad: Lodhi at [18-21]. There was ample evidence from which his Honour could conclude that the appellant held his intentions with great vigour and firmness as a consequence of deeply fanatical views. It was plainly open to the Judge to reject the appellant’s argument and to find beyond reasonable doubt that he maintained a general intention relating to terrorist activities at least up until the time of his arrest.
His Honour erred, Mr Boulten SC submits, by concluding that the objective seriousness was significant despite the [offending] acts being at a preliminary stage. Although it is true, Mr Boulten SC concedes, that the purpose of the legislation is to criminalise preparatory acts the level of culpability must necessarily depend, he submits, on the proximity between the appellant’s act and any potential terrorist act.
The proximity of the offending act to the substantive offence is of relevance in the assessment of the culpability of an attempt to commit a crime. With the relevant state of mind the offender must do some act towards the commission of the offence which goes beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of the intended crime: R v Mai (1992) 25 NSWLR 371. The unlikelihood of success of an attempt, although the ultimate crime is physically possible, is relevant to the consideration of the objective seriousness of the offence. The inter-relationship between the seriousness of the intended consequences and the real prospects of achieving them is a factor to be weighed in the light of all the circumstances: R v Taouk (1992) 65 A Crim R 387.
The present offences, however, are not crimes of attempt. Sections 101.4, 101.5 and 101.6 of the Criminal Code Act 1995 (the Criminal Code) extend criminal liability to acts of preparation. The proximity between the criminal act and the commission of the substantive offence is necessarily more remote. These are anticipatory offences which enable intervention by law enforcement agencies to prevent a terrorist act at a much earlier time than would be the case if they were required to wait for the commission of the planned offence or for an unsuccessful attempt to commit it. The proximity between the preparatory act and the completion of the offence, although relevant, does not determine the objective seriousness of such an offence. It does not follow that as long as the preparatory acts relied upon to constitute the offences are in their infancy criminal culpability must necessarily be low. The main focus of the assessment of objective seriousness must be the offender’s conduct and the offender’s intention at the time the crime was committed.

Having found that the appellant’s acts were at a very early stage, Whealy J determined that an evaluation of criminal culpability required analysis not only of the act itself but an examination of the nature of the terrorist act contemplated particularly in the light of the appellant’s intentions or state of mind. The three offences were to be viewed, his Honour said, in their entirety. The Judge pointed out that 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. I see no error in his Honour’s reasoning.
Mr Boulten SC further argued that a distinction should be drawn between offenders who are part of well-developed plans and those whose plans remain largely exploratory. It was pointed out by senior counsel that during the sentencing proceedings the Crown had been unable to establish when, how, where or by whom the terrorist act was to be carried out. As a result the appellant, Mr Boulten SC contends, should be treated at the lower end of the scale of culpability.
An inevitable consequence of early intervention by the law into acts of preparation is that definitive conclusions might not be able to be reached about the viability, sophistication or indeed the offender’s role in the ultimate offence. But that does not mean that the act which constitutes the offence charged will not be regarded as serious.
In the present case his Honour was not satisfied beyond reasonable doubt that the appellant had at any time made up his mind that it would be he who would carry out the bombing of the Australian electricity supply. His Honour was satisfied that the proposal had not reached the stage where the identity of a bomber, the precise area to be bombed or the manner in which the bombing would take place had been worked out.
The Judge, however, found that there was a significant degree of premeditation and planning involved in the assembling of the Urdu document, the act of writing it out in the Urdu language, the efforts put into the purchasing of the maps and the enquiries made to Deltrex Chemicals. He was satisfied beyond reasonable doubt that the appellant intended to detonate an explosive device so as to cause at least very serious damage to property and that he would have been aware, or at least would have contemplated, there was a risk of serious physical harm or death to persons in the vicinity.
The next point argued for the appellant is that his Honour erred in determining that the objective seriousness of count 2 was greater than the objective seriousness of counts 1 and 4 and the sentence for count 2 should not have exceeded the sentences for counts 1 and 4. The head sentences for counts 1 and 4 are 10 years whereas the head sentence for count 2 is 20 years.
Whealy J said in Lodhi at [69] that there were a number of reasons why he considered count 2 to be a more serious offence than counts 1 and 4:
“First, the offence in count 2 carries with it as I have earlier noted, a maximum sentence of life imprisonment. Parliament considers it a more serious offence than each of the offences the subject of counts 1 and [4]. Second, it is a more serious offence because, the act of preparing for a terrorist act is the carrying out of a preliminary action that is, by its nature, closer to the commission of the ultimate terrorist act than the offences contemplated in ss 101.4 and 101.5 of the Criminal Code. Thirdly, the offender’s actions in making the enquiries of Deltrex Chemicals in the present matter were, in fact, actions that brought him that much closer to the carrying out of an act of terror than did the other preliminary actions for which he has been convicted.”
The appellant criticises the second and third of his Honour’s reasons. Mr Boulten SC argues that the second reason is not supported by statutory language since both ss 101.4 and 101.5 refer to the “preparation for…a terrorist attack”. Furthermore, the acts charged in count 2 were, as a matter of fact, every bit as remote from a terrorist act as were the acts charged in counts 1 and 4.
Section s 101.4(1), 101.5(1) and 101.6 are found in Part 5.3 Division 101 of the Criminal Code:
“Possessing things connected with terrorist acts
101.4     (1)          A person commits an offence if:
  (a)          the person possesses a thing; and
(b)the thing is connected with preparation for, the engagement
of a person in, or assistance in a terrorist act; and
(c)the person mentioned in paragraph (a) knows of the connection described in paragraph (b).
Penalty: Imprisonment for 15 years.”
“Collecting or making documents likely to facilitate terrorist acts
101.5     (1) A person commits an offence if:
  (a)          the person collects or makes a document; and
(b)the document is connected with preparation for, the
engagement of a person in, or assistance in a terrorist act; and
(c)the person mentioned in paragraph (a) knows of the connection described in paragraph (b).
Penalty: Imprisonment for 15 years.”
“Other acts done in preparation for, or planning, terrorist acts
101.6     (1)          A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.
Penalty: Imprisonment for life.”
It is evident that s 101.6 requires the doing of an act in preparation for a terrorist act whereas ss 101.4 and 101.5 speak of the possession of a thing or making of a document which is connected with the preparation of a terrorist act. The doing of an act is necessarily closer to the commission of the ultimate terrorist act than the possession of a thing or the making of a document which is said to be connected with the preparation for the terrorist act.
An assessment of the objective seriousness of the offender’s conduct in committing the offence contrary to s 101.6 is not confined to the appellant’s enquiry to Deltrex Chemicals. The information was sought after the appellant had collected the ESAA maps. The list obtained from the chemical company provided prices for urea and nitric acid which were components from which a urea nitrate bomb might be made. He had the intention of blowing up a building or infrastructure to advance the cause of violent jihad and to intimidate the government and the public. The Urdu document which was in his possession included formulas for the manufacture of a urea nitrate bomb which was easy to make. The enquiry was the third step which the appellant had taken along the intended path towards a violent terrorist act. Although he may not have advanced a sufficient distance in his journey for his actions to amount to more than preparation, what must be borne in mind is the intended destination. An explosion of a urea nitrate bomb had the capacity to significantly damage property and cause substantial loss of life and injury. An act done in preparation for a terrorist act is punishable by imprisonment for life. The maximum penalty is intended to reflect the severity with which the legislature regards the offence.

Mr Boulten SC further submits that an offence under s 101.6 covers a variety of intentions and actions. For example, an action may involve, he submits, the making of enquiries about the pricing and availability of chemicals at one end of the spectrum and the placing of a bomb in a building at the other end of the spectrum. The intention may involve the causing of property damage at one end and the causing of death at the other end. It is submitted that his Honour placed too much weight on the perceived intention of the legislature and did not pay sufficient regard to the facts of the case. The appellant criticises the first reason given by the Judge in the passage which is quoted at paragraph 21 supra.
Acts done in preparation for, or planning, a terrorist act undoubtedly can embrace a wide range of conduct. As was said by the High Court in Ibbs v The Queen (1987) 163 CLR 447 at 452:
“When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case.”
The purchasing of the chemicals and the making of a urea nitrate bomb are likely to be regarded as more heinous than the appellant’s conduct in this case. An intention to take human life is more heinous than an intention to cause significant damage to property: R v Roche (2005) 188 FLR 336 at [119]. But that does not lead to the conclusion that the appellant’s acts and intentions are not appropriately regarded as being of high level, although falling short of the worst category of a preparatory act. A settled intention to cause an explosion puts an offence high on the scale of gravity as does an offence which threatens the daily lives and livelihood of many people: Roche at [119]. An act done in preparation for such a terrorist act is a very serious offence.
The maximum penalty of life imprisonment is not irrelevant to the sentencing task. It is the maximum penalty which has been legislated by Parliament. The maximum penalty serves as a yardstick or as a basis of comparison between the case before the Court and the worst possible case: Markarian v The Queen (2005) 79 ALJR 1048 at [31].

His Honour did not err in determining that the objective seriousness of count 2 was greater than the other counts for which the appellant was to be sentenced.
The appellant contends that his Honour erred in finding that the appellant wished to coerce the Australian government and intimidate the public generally. Mr Boulten SC submits that there was no evidence before the Judge, which would have permitted him to conclude that the appellant intended to intimidate the public generally.
Whealy J found that the appellant undoubtedly had in mind to damage some part of the electricity system but there was no evidence from which he could conclude the precise nature of the ultimate target to be hit.
The supply of electricity underpins modern society. Australians are dependant upon an efficient and continuous supply. Damage to the electricity system by an explosion could potentially threaten the every day lives of many people. The capacity to intimidate by targeting essential infrastructure at a time when the public is apprehensive of terrorist attacks is obvious.
Although the appellant did not specifically target any members of the public, it would have been plain to him that the Australian people would be intimidated by an attack on the electricity supply system. His Honour was entitled to find that the appellant’s intention was to carry out a general attack upon the community as a whole and was intended to intimidate the public generally.
I am of the opinion that his Honour’s assessment of the objective seriousness of the offence was not flawed.
Ground 2 (on sentence) is that his Honour failed to give sufficient weight to the custodial conditions to which the appellant would be subject.
The appellant’s first submission is that his Honour erred in assessing the impact upon the appellant of the harsh conditions to which he would be subject during his time in custody. This was accompanied by the submission that the Judge erred by relying upon the fact that the appellant may be reclassified at a future point.
Whealy J gave extensive consideration to the conditions of the prisoner’s custody: Lodhi at [76-89]. There was evidence before him that except for a brief period he was placed in segregated custody the reality of which his Honour found to be solitary confinement. The Judge detailed the conditions of the appellant’s custody including being shackled when out of his cell, constantly monitored and filmed by video camera. He acknowledged that the conditions of the appellant’s imprisonment while ever he remains classified AA would be harsh. His Honour was of the view that he was entitled “to make some allowance in the sentencing process for the conditions of imprisonment”: Lodhi at [88]. The Judge said:
“In the present matter, however, I do not consider that the allowance should be in any sense a substantial one, or even one that can or should be mathematically calculated. It needs to be borne in mind that the offender is in fact coping very well with his prison situation and that this is no doubt, at least in part, occasioned by his religious convictions. Second, it is clear that his classification is not set in concrete and that the possibility of a less onerous re-classification is by no means out of the question. As the sentencing judge, I would recommend to the prison authorities that they ought not lose sight of the need to consider the re-classification of the offender at a relatively early stage during his prison term.”
His Honour was required to take into account in favour of the appellant the segregated pre-sentence custody and the likelihood it would continue in determining the length of the sentences to be imposed: Regina v Totten [2003] NSWCCA 207; R v Burchett (1987) 34 A Crim R 418. It is evident that he did so. It is the insufficiency of the allowance about which the appellant complains. There was evidence before the Judge that the appellant had been coping well in custody. Furthermore, whilst it had been conceded by Mr McClintock, a correctional officer, that it was possible there would be at least a marked delay in the appellant’s progress from the AA category to a less onerous classification, there was evidence that his classification was “not set in concrete”. These were circumstances that the Judge was entitled to take into account in determining what weight should be given to the conditions of the appellant’s custody. His Honour was not obliged to conclude that the appellant would serve the whole of his sentence in solitary confinement. He was required to make a prediction about the conditions in which the sentence would be served: Totten at [43]; R v Mostyn [2004] NSWCCA 97 at [180]. Whealy J’s assessment that the allowance should not be “substantial” does not mean that his Honour did not give real weight to the appellant’s custodial conditions. This was a matter within his Honour’s discretion and no error in the exercise of the discretion has been demonstrated. This ground of appeal accordingly fails.

Ground 3 of the sentence appeal is that His Honour erred in not reducing the head sentence in consequence of s 19AG Crimes Act.
As the submission advanced on behalf of the applicant relates to the provisions of s 19AG of the Crimes Act, it is convenient to set out that section. It provides as follows:
“Non-parole periods for sentences for certain offences
19AG     (1) This section applies if a person is convicted of one of the following offences (each of which is a minimum non-parole offence) and a court imposes a sentence for the offence:
(a) an offence against section 24AA;
(b) a terrorism offence;
(c) an offence against Division 80 or 91 of the
Criminal Code.
Note:A sentence for a minimum non-parole offence is a federal sentence, because such an offence is a federal offence.
(2)The court must fix a single non-parole period of least ¾ of:
(a) the sentence for the minimum non-parole offence;
     or
(b) if 2 or more sentences have been imposed on the
person for a minimum non-parole offences – the
                 aggregate of those sentences.
The non-parole period is in respect of all federal sentences the person is to serve or complete.
(3)          For the purposes of subsection (2):
(a) a sentence of imprisonment for life for a minimum
     non-parole offence is taken to be a sentence of
imprisonment for 30 years for the offence; and
  (b) it does not matter:
(i)whether or not the sentences mentioned in that subsection were imposed at the same sitting; or
(ii)whether or not the convictions giving rise to those sentences were at the same sitting; or
(iii)whether or not all the federal sentences mentioned in that subsection are for minimum non-parole offences.
(4)If the person was subject to a recognizance release order, the non-parole period supersedes the order.
(5)Sections 19AB, 19AC, 19AD, 19AE and 19AR have effect subject to this section.”

The appellant submits that s 19AG does not affect the length of the non-parole period which the Court would have imposed in the absence of the provision. The appellant refers to the established sentencing practice before the introduction of the section that the non-parole period for Federal offences would normally be in the range of 60-75 per cent of the head sentence with 75 per cent being reserved for the worst cases. Should Parliament have intended to create a sentencing provision that was designed to lead to disproportionate sentences, Parliament should, the appellant submits, clearly have said so. Section 19AG is no more, the appellant argues, than an expression of the legislative presumption that rehabilitation plays a less significant role in the sentencing of persons convicted of a “terrorism offence”. The provision does not, however, mandate an increase in the non-parole period of an offender.
The appellant’s argument is founded on the proposition that the non-parole period is imposed first and then the head sentence is determined. This proposition is contrary to sentencing principle. The duty of the Court in imposing a sentence for a federal offence is to impose a sentence that is of a severity appropriate in all the circumstances of the offence: s 16A(1) Crimes Act. The Court must take into account all the matters identified in s 16A(2) in determining a sentence proportionate to the wrong-doing: Wong v The Queen [2001] 207 CLR 584 at [71]. It is only after a proportionate sentence is imposed that the Court is to fix a non-parole period or make a recognizance release order: s 19AB Crimes Act.
The determination of the appropriate non-parole period for offences in breach of the criminal law of the Commonwealth involves the exercise of judicial discretion. As was observed by Meagher JA with whom Wood CJ at CL and Studdert J agreed in R v John Viana [2001] NSWCCA 171 at [3]:
“The principles of law applicable in this area have been laid down by this court in Bernier v R (1998) 102 A Crim R 44. There is in fact no statute which requires the non-parole period to bear any particular proportion in relation to the head sentence, nor is there any mandatory precedent in this Court which requires a fixed sentence. The most that can be said is that this Court has usually in cases of this sort, thought the proportion ought to be somewhere between 60 and 66 per cent. This is not to say that higher percentages cannot stand.”
Factors identified as material to the determination of the appropriate ratio for a non-parole period include the length of the head sentence and its position in the permissible range: see Bernier at 49 and Sweet 125 A Crim R 341 at 346; the seriousness of the offence and the prospects of rehabilitation: see Stitt (1998) 102 A Crim R 428 and Meloh [2001] NSWCCA 211 at [10] and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence (see Drazkiewicz, unreported, Court of Criminal Appeal, 23 November 1993 unreported).
Section 19AG imposes a statutory fetter upon the exercise of judicial discretion by prescribing a non-parole period of at least ¾ for those offences found in s 19AG(1) which are described as “minimum non-parole” offences. A “terrorism offence” is a minimum non-parole offence: s 19AG(1)(b). Section 3 defines a “terrorism offence” to include offences against Part 5.3 of the Criminal Code within which Part the offences of which the appellant was convicted fall. Section 19AG does not detract in any way from the obligation of a sentencing Judge to first impose a proportionate sentence before considering the non-parole period.
Whealy J rejected the appellant’s submission that because of the operation of s 19AB it was necessary to fix a lower head sentence than might otherwise have been appropriate. His Honour did not err in doing so and this ground of appeal fails.
Ground 4 of the sentence appeal is that the sentence was manifestly excessive. I have previously indicated that there was no error in the assessment of the appellant’s criminal culpability. The appellant submits that this Court would be assisted by a consideration of cases from foreign jurisdictions and in particular cites R v Abu Baker Mansha [2006] EWCA Crim 2051 and R v Boutrab [2005] NICC 36 in support of the ground of manifest excess as the facts of both cases are said to be remarkably similar to those of the case brought against the appellant. Mr Boulten SC argues that Whealy J erred in refusing to be assisted by these decisions in reliance of what was said by this Court in R v Brownlowe [2004] NSWCCA 465.
Mansha was convicted, following a trial, of an offence of possessing information likely to be useful to a person committing or preparing an act of terrorism contrary to s 58(1)(b) of the Terrorism Act 2000 (UK). The Anti Terrorist Squad and Firearms Squad had raided the offender’s flat and found a number of documents. The first of those was a newspaper article about a soldier who had been decorated for gallantry in Iraq. On a separate sheet of paper the offender had written down the soldier’s name and full address. In fact, the soldier had moved away from that address and at the time of the search was no longer resident at the address recorded on the sheet of paper. An A4 refill pad was also recovered and forensically examined. From the indentations on the pad it was established that the appellant had written away concerning two prominent Jewish men and two prominent Hindu businessmen. The officers also found a number of DVDs containing anti-western propaganda, Islamic propaganda praising martyrdom, others giving details of suicide car bombings against the British and against the Russians in Chechnya. The offender was sentenced to imprisonment of 6 years. The maximum penalty for the offence was 10 years imprisonment. The English Court of Appeal Criminal Division dismissed the offender’s appeal against the sentence and in doing so made remarks from which the appellant can derive little comfort. The Court said at [11]:
“We agree with the Judge that a person convicted of a terrorist offence must expect a substantial sentence to be imposed by the court. The court must impose such a sentence in order to serve as a deterrent to others and to mark the extreme seriousness of the criminality involved in terrorist activities.”
Boutrab involved an offender charged with one count of possession of articles for a purpose connected with terrorism contrary to s 57(1) of the Terrorism Act 2000 and one count of collecting information likely to be useful to terrorists contrary to s 58(1)(a) of the same Act. The substance of the case against the offender involved the possession of floppy discs which had been downloaded by him from a computer in the Belfast central library which contained information in connection with the making and use of explosives for attacks on aircraft and the manufacture of silencers for firearms. The offender was sentenced, it appears, at the Belfast Crown Court to imprisonment of 6 years. The maximum penalty for each offence was 10 years imprisonment.
Mr Boulten SC points out that in accordance with s 244 of the Criminal Justice Act 2003 (UK) Mansha (and presumably Boutrab) would be eligible for parole after three years.
The appellant, this Court is informed, is the first person to be convicted of offences connected with or acts done in preparation for terrorist acts. There is no established range of sentences for such crimes. The range of penalties imposed by overseas jurisdictions are, however, of no assistance in determining the sentencing range in New South Wales. This will be the case even when there is no established tariff in Australia for the offence. In Brownlowe Barr J explained at [46]:
“Conditions in such jurisdictions are likely to be different from those that obtain in this State. Maximum sentences are different; sentence structures and components are different; parole rules are different; offences may be different. Judges in such jurisdictions may take a more serious or more lenient view than New South Wales judges when deciding how to sentence.”
The cases of Mansha and Boutrab highlight the difficulties encountered in seeking assistance from sentencing trends in foreign jurisdictions. The statutory regimes which govern Mansha and Boutrab are plainly different to the Criminal Code and the Crimes Act which govern the present offences both as to maximum penalties, and as to the parole provisions. The offences of which the appellant is charged were introduced by the Security Legislation Amendment (Terrorism) Bill (2002) (The Terrorism Bill) which was the Commonwealth Parliament’s response to the changed security environment after 11 September 2001. The length of the sentences imposed in the cited cases provide no assistance to this Court and the Judge was right to have had little regard to them.
The sentencing experience of foreign courts may be helpful on matters of general principle when there is little or no familiarity with a particular offence in Australia. This was the approach taken by McKechnie J in Roche when he reviewed a number of English authorities from which he, in part, extracted the principles to be applied to that appeal. Roche was convicted with conspiring with others to commit an offence contrary to s 8 (3C)(a) of the Crimes (Internationally Protected Persons) Act 1976 (Cth) which was to damage by means of explosive the Israeli Embassy. It was said to be the first conviction in Australia for terrorist activity.
Whealy J gave careful consideration to Roche. Roche pleaded guilty during his trial and was sentenced to nine years imprisonment with a non-parole period of four and a half years. The maximum penalty for the offence was imprisonment for 25 years. He had entered into the conspiracy for political reasons with the intention to destroy or damage property. He further intended to endanger the lives of people by that destruction which was to be caused by an explosion. Between March and September 2000, Roche was actively engaged in the conspiracy and conducted photographic and video surveillance of the Israeli Consulate in Sydney and video surveillance of the Israeli Embassy in Canberra. He took preliminary steps for the acquisition of explosives. He purchased igniters. The conspiracy did not progress to the possession of explosives and the results of his surveillance were not passed on to the other conspirators. Roche was ambivalent for a time as to his further involvement in the conspiracy and eventually withdrew. By July he had attempted to make contact with ASIO and other attempts were subsequently made. He remained effectively in the community, inactive, for about two years until his arrest. Roche was found to pose no further risk and the prospects of his rehabilitation were considered to be excellent. The sentencing Judge discounted his sentence by a year for promised future co-operation. The discount allowed for the plea of guilty and past co-operation was two years. The Court of Criminal Appeal by majority (Murray ACJ and Templeman J agreeing with McKechnie J in dissent) dismissed the Crown appeal against the manifest inadequacy of the sentence.
Roche was an inadequacy appeal. The maximum penalty was 25 years and not life imprisonment. He had pleaded guilty and as Whealy J pointed out “his assistance to the authorities, both past and present, stand in stark contrast to the situation of the present offender”: Lodhi [at 98]. His Honour was entitled to conclude that the case of Roche was not of any great assistance.
The Judge detailed the principles to be applied in sentencing the appellant. He referred to the purposes of sentencing and the need to have regard to the provisions of ss 16A(1) and 16A (2) of the Crimes Act.
His Honour considered that the appellant’s subjective circumstances were “to be given less weight in the present matter than the important principles of general deterrence and denunciation”: Lodhi at [89]. His Honour said:
“The need for substantial sentences to reflect the principles of general deterrence are obvious in relation to crimes of this kind. Such crimes are hard to detect; they are likely to be committed by members of our own community and often by persons of prior good character and favourable background. One has only to consider the tragedy of the London bombings in 2005 to recognise this observation as a sad truism. Moreover, terrorism is an increasing evil in our world and a country like Australia, with its very openness and trusting nature, is likely to fall easy prey to the horrors of terrorist activities”: Lodhi at [91].
There was also he said, “a need to recognise that the imposition of a substantial sentence may have a personal impact as a deterrent on this offender”: Lodhi [at 92].
I detect no error in his Honour’s approach to the sentencing task. In determining the sentence to be passed the matters identified in s 16A(1) and s 16A(2) of the Crimes Act must be taken into account. These matters include the subjective circumstances of the offender: s 16A(2)(m); and the prospect of rehabilitation: s 16A(2)(n). 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. In his careful and well-reasoned judgment, the Judge balanced the competing purposes of sentencing appropriately.
His Honour applied the principle of totality by directing that the sentences imposed be served concurrently. A single non-parole period of 15 years was set.
As I have stated, the appellant’s offence contrary to s 101.6 of the Criminal Code is a very serious crime. The maximum penalty is imprisonment for life. I am not persuaded that the sentence imposed for count 2 of 20 years imprisonment is manifestly excessive. The sentences imposed by the Judge do not manifest error. Ground 4 of the appeal fails.
I propose that leave to appeal be granted, but the appeal be dismissed.
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LAST UPDATED: 20 December 2007