R v Abbas

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0178

THE QUEEN
v
IBRAHIM ABBAS	Accused

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATES OF HEARING:	10, 17 and 18 September 2018
DATE OF JUDGMENT:	20 September 2018
CASE MAY BE CITED AS:	R v Abbas
MEDIUM NEUTRAL CITATION:	[2018] VSC 553

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CRIMINAL LAW- Sentence – Conspiring to do acts in preparation for or planning a terrorist act – Offender with three others prepared to carry out a terrorist act in the CBD of Melbourne – Use of explosive devices, bladed weapons and firearms all contemplated - Purchases of ingredients and components for explosive device carried out – Explosive devices tested – Bladed weapons purchased – Reconnaissance carried out in Melbourne CBD – Attack imminent – Little evidence of remorse – Past co-operation but no promise of future co-operation – Crime at upper end of range of seriousness – Sentence of 24 years’ imprisonment with a non-parole period of 20 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Doyle	Commonwealth Director of Public Prosecutions
For the Accused	Mr D Gurvich QC with Dr G Boas	Emma Turnbull Lawyers

HIS HONOUR:

Ibrahim Abbas, you have pleaded guilty to a charge of conspiring with others to do acts in preparation for or planning a terrorist act. The conspiracy which you have admitted was on foot for two months leading up to your arrest on 22 December 2016. Those with whom you conspired were your brother Hamza Abbas, your cousin Abdullah Chaarani, (‘Chaarani’) and a friend Ahmed Mohamed. (‘Mohamed’) The acts the subject of the conspiracy were the purchase of chemicals and other items for use in the manufacture of improvised explosive devices, the purchase of bladed weapons, and the conducting of reconnaissance of the area around Federation Square in Melbourne. The terrorist act in prospect was to involve the detonation of an explosive device or devices, and/or the use of bladed weapons, and/or the use of firearms in the vicinity of the area mentioned with the intention of pursuing violent jihad. The act if carried out would have been such as to intimidate the Government of Australia and the Australian public.

Your plea of guilty to this charge was an acknowledgement by you that all of the elements of the crime of conspiracy as contained in the charge on the indictment were made out.

The maximum penalty for the crime to which you have pleaded guilty is life imprisonment.

Background to your offending

You were born in Melbourne on 29 January 1994, and were hence 22 years old at the time of the offence, and are now aged 24. You resided at 15 Blackwood Crescent, Campbellfield with your wife Emma and child Essma at the time of your offending.

You were educated at an Islamic school for the entirety of your schooling. Having lost interest in religion for some years, at the age of 19 your faith was re-kindled after the illness and death of your uncle. At this time you were influenced in your understanding of religion by your older cousin, Nabil Abbas. He introduced you to the teaching of Anwar Al-Awlaki, who became one of the main scholars whose views you respected and followed. As you described it to the Federal Police in your second interview on 26 July 2018[1], when you started practising Islam again, yours was ‘immediately a jihadi ideology’. You went ‘straight into the deep end’. [2] From 2013, you became very inclined towards and supportive of the cause of Islamic State. (IS) When the Caliphate was declared in 2014, you immediately pledged allegiance to IS via Facebook. You believed the implementation by IS of Sharia law was correct and that the jihad waged by IS against the Shia of Iraq and the Alawites of Syria was ‘fully legitimate’.[3] You watched and collected IS videos, and read IS publications. You commenced to follow events occurring overseas concerning Muslim people. In particular, you followed the conflict involving IS in Syria and elsewhere. You believed the cause of IS was a noble one, and that any deaths of IS followers or civilians in the conflict zones were the result of a war by the Western world, including Australia, upon Islam.
[1]Transcript of second interview (R/I 2) is contained behind divider 2 in the folder of Exhibits on the Plea; Exhibit B. The interview was later reduced to statement form. Statement is behind divider 1 in Exhibit B.
[2]Statement (ibid) at [8].
[3]R/I 1 Q 171.

In the five years leading up to your offending, you regularly attended at the Hume Islamic Youth Centre (‘HIYC’), a mosque complex in Coolaroo. HIYC included a prayer room and a gymnasium. Others who attended regularly at that location were your brother Hamza and the other two co-conspirators. As you described it to police, you attended HIYC every second day, to pray, train, and gather with your friends.

In speaking of your faith to the police in the first interview, you described Islam as a peaceful and very simple religion. You said you had been raised to be a ‘very peaceful, nice, loving Muslim which every Muslim should be but obviously in certain situations, certain circumstances, you know, you shouldn’t always turn the next cheek to get slapped, you know what I’m sayin’?’ In distinguishing your own political/religious views from those of your father, you spoke of your belief that, contrary to his views, Sharia law should be ‘implemented immediately on people’.[4] You stated, ‘And all our differences spring from this.’ When asked about what the effect of the introduction of Sharia law would be on people, in particular Shia and non-Muslim people, you said, ‘If Sharia was applied in Australia they would, um- ah, all the people would fall under a contract. They would sign a contract to live with, amongst Muslims in peace. Whoever does not sign that contract either leaves the country or is executed. He’s given the chance to leave the country. If he doesn’t want to leave he gets executed…in the quickest, simple fashion.’[5]
[4]Ibid Q 139.
[5]Ibid QQ 161-163.

Your burgeoning interest in, and support for, the IS cause was at the heart of the decision you made to contemplate and prepare for a terrorist attack in Melbourne. Some other events in the lead-up to the period of the conspiracy further fuelled this thinking.

On 15 June 2015, your cousin Nabil Abbas left Australia to join and fight for IS. You spoke about this event with Chaarani and it is apparent that it was your view, shared with Chaarani, that your cousin Abbas was doing a good thing going overseas and ‘fighting for the sake of God.’ You were later to say to the police that you would have done the same yourself if you had the opportunity and the means to do so. Indeed, Chaarani sought to follow that course himself.

On 30 June 2015, an Australian passport was issued to Chaarani. He purchased a ticket to fly to Malaysia, intent on travelling overseas to join IS. You drove him to Melbourne Airport on 9 July 2015. He was interviewed by Border Force and not permitted to board his flight. His passport was seized and later cancelled. You were later to tell the Federal Police that your decision to plan a terrorist attack in Australia was in part related to your inability to leave the country.[6]
[6]Ibid Q 501.

Internet research into bomb manufacture

In early 2016, two of your eventual co-conspirators Mohamed and Chaarani conducted internet research into the manufacture of improvised explosive devices (IEDs). On 2 October 2016, Mohamed saved an internet link to an Al Qaeda publication, Inspire Volume 1, into the Notes application of his mobile phone. The publication contained an article entitled, ‘Make a bomb in the kitchen of your Mom’, which explained how to make an explosive device using items and ingredients commonly found in the household. On 10 October 2016 at 2.00 pm, Mohamed and Chaarani arranged to see each other. At 3.11 pm and 3.38 pm on the same day, Mohamed used his mobile phone to search for the Inspire article. At 3.39 and 3.43 pm, Chaarani used his mobile phone to take seven photographs of bomb making instructions from, ‘Make a bomb in the kitchen of your Mom’. The photographs depicted galvanised metal pipe elbows and various steps in the process of manufacturing IEDs.

The instructions in the Inspire article specified that a flammable substance from match heads or the powder from fireworks or a combination of both would be required in the bomb-making process. A section headed ‘The electricity source’ contained instructions on the use of a battery and small light globes to create a circuit required in the bomb.

Conspiracy on foot from 21 October 2016

The crime to which you pleaded guilty involved the period from 21 October until the day of your arrest on 22 December 2016. In a sense, the starting point of the conspiracy is somewhat artificial, but of course, I sentence you for a continuing crime the duration of which is reflected by the dates in the charge.

There are a number of sources of information about how the conspiracy arose, what its purpose was, and what was actually done by you and your co-conspirators during the period of the conspiracy. There were the two lengthy conversations you had with the police to which I have already referred. There was surveillance carried out upon you and the others. There was the product of listening devices and telephone intercepts. There were the findings on telephones and other electronic devices of you and your colleagues when you were arrested.

Your connection with the co-conspirators and the thinking behind the conspiracy

Hamza Abbas (DOB 19 March 1995) is you brother and is one year your junior. As you described it to the police in the first interview, he looked up to you and seemingly shared your political and religious views. On the prosecution case, Hamza joined the conspiracy sometime after its commencement. Chaarani (DOB 18 September 1990) is your cousin, and you regularly met with him at HIYC and other locations. Through him, you came to know Mohamed, (DOB 28 September 1992) whom you told police you had met at Al Muntada Mosque in Coolaroo about two months before 22 December 2016. Mohamed, too, shared your extreme views about the supposed persecution of the Islam faith, and the legitimacy of the war being waged overseas by IS.

On the account you gave to the police in the first interview, you were at the ‘forefront’ of the group involved in the conspiracy.[7] You reached a point in the interview where you said:[8]

I’m done with all these questions and bullshit. Australia is attacking Muslims in Islamic State and is (sic) doing so does not distinguishing (sic) innocent people, old people, young people, male or female. Whoever they kill it doesn’t distinguish. So I get this from my beliefs and opinions which I have procured over the years that this act of terrorism on my people makes legitimate that civilians of Australia deserve the same thing, the same treatment that we are treated…Therefore, I believed that engaging in these acts is a religious thing and I was at the forefront of this group when it came to, um – what’s the word? – propagating this message. I’ll repeat I was at the forefront of this group propagating this message that we need to do something here and the reason is what I said before because Australia kills and bombs Muslims overseas regardless of age, gender, whatever. With regards to my brother, I was pushing him as much as I can so he could join me in this act because I was trying to create a group and he was hesitant, very, very hesitant, he did not want to do it and I was forcing it upon him…and I’d try to do whatever I can to bash my views onto him. As with the other two, being Abdullah Chaarani and Ahmed Mohamed, same thing. I would tell them, this is what we have to do.

[7]Ibid Q 458.

[8]Ibid Q 458.

In terms of the sequence of the co-conspirators coming on board with your extreme thinking and plans, you claimed that it was Mohamed first, then Chaarani, and then, later on, your brother Hamza.

In your two interviews with the police, you detailed steps that you and the others took in connection with the conspiracy. I will deal more fully with the interviews later in this sentence. For now, I will set out some of the steps taken and statements made by you and the others during the period of the conspiracy as revealed by the wider police investigation. These are set out in detail in the Prosecution Opening for Plea which was presented orally in Court and became Exhibit A on the plea. I note that with some limited exceptions, to which I will refer in due course, you did not take issue with the correctness of the facts set out in the opening. I will not cover every matter set out therein. Suffice to say, the matters contained in that opening clearly illustrate the many and serious steps you and your accomplices took in pursuit of your malevolent plan to carry out a terrorist attack in the heart of the Melbourne CBD. I will deal with things in chronological order.

21 October 2016

The actions of Mohamed and Chaarani on the first day of the period specified in the indictment as the period of the conspiracy can only be sensibly seen in light of their earlier research carried out into the manufacture of IEDs which led to their discovery of the Inspire Article, ‘Make a bomb in the kitchen of your Mom.’[9] That article was exhibited during the plea as part of Exhibit B. The article described the chillingly simple method for the construction of an IED. Essential components of the device would be a small section of elbow iron pipe with a small hole drilled in it, flammable material made up of ground up match heads and sugar or other flammable substance such as fireworks gunpowder, a small globe with exposed filament, electrical wire, a battery, and nails or other materials to constitute the shrapnel. An alternative form of airtight container proposed was a pressure cooker.
[9]Dealt with at [11] – [12] of this Sentence.

On 21 October 2016, Mohamed attended at the Bunnings store in Broadmeadows and purchased a packet of two 50-watt halogen light globes.

23 October 2016

The evidence revealed that on 23 October 2016, Mohamed and Chaarani attempted to construct an IED. At 1.42 pm, they spoke over the phone and made arrangements to meet. In the conversation, Mohamed asked Chaarani if he had the screws or nails, and Chaarani said he would come and show Mohamed what he had. Chaarani arrived at Mohamed’s house shortly after 2.25 pm. At 8.38 pm, Chaarani’s wife called him and asked him where he was. He replied that he was still with Mohamed. Mohamed himself received a call from his wife at 10.28 pm. He refused to divulge where he had been that day.

4 November 2016

On 4 November 2016, Chaarani received an email from Ebay in relation to a Muela Mirage brand hunting knife and leather sheath. The email stated Chaarani had recently viewed the item and enquired whether he would like to look further at that knife and suggested other knives which might be of interest to him. A Muela Mirage hunting knife was seized from the premises of Chaarani after his arrest.

21 November 2016

On 21 November 2016 at 3.51 pm, you and Mohamed attended at the Bunnings store in Broadmeadows and purchased three boxes of Ramset brand power load cartridges,[10] four galvanised 25 mm pipe elbows, one galvanised 25 mm hexagonal nipple, one galvanised 25 mm plug and one galvanised 25 mm end cap. It was the intention of you both to extract the gunpowder from the cartridges and place it in the compact environment of the galvanised piping in an endeavour to make an explosive device. The evidence indicates that you spent some hours that day manufacturing, or attempting to manufacture, an IED.
[10]These are for use in nail guns.

At 4.14 pm on this day, Mohamed spoke with Chaarani on the phone. He told Chaarani he was at your house. He told him you had been to Bunnings and said you and he needed a drill. Chaarani had a drill and tool box in his shed and in his vehicle which he was not able to bring over. You could be heard on the line saying, ‘Tell him we’ll go over and get the keys off him.’

You and Mohamed travelled to Fawkner to get the drill and other tools you required.

First trip to Clonbinane; 21 November 2016

At 6.22 pm, Chaarani telephoned you and told you he was outside. You said you were coming. At 9.27 pm, your vehicle, a black Holden Barina, was observed by a traffic camera travelling north on the Hume Freeway. At 9.33 pm, Chaarani and his wife spoke by telephone. His mobile connected to a cell tower in Clonbinane. He told her he had been delayed and was going to be another couple of hours, maybe until midnight. Mohamed then spoke to his wife on the same telephone. She asked him where he was and he said, ‘I am going to Disneyland.’ She expressed her annoyance at him and he said, ‘For the sake of Allah please have patience with me, it’s very important.’

At 9.54pm, your mobile phone connected to a phone tower at Tallarook, an area immediately to the north of Clonbinane.

At 12.53am on 22 November 2016, Chaarani called his wife and told her he would be home in ten minutes.

26 November 2016; IS video ‘You Must Fight Them, O Muwahhid’

On 26 November 2016, the Al-Hayat Media Centre, the English-language media arm of IS, released a video entitled, ‘You Must Fight Them, O Muwahhid’. The video, disseminated via the internet, contained a demonstration and detailed step-by-step instructions on the construction of homemade IEDs consisting largely of common household products including acetone, glass jars, a syringe, hydrogen peroxide, sulphuric acid, gloves, cloth, light bulbs, batteries, matches, sand paper, aluminium, tape, scissors and shrapnel. The video tutorial demonstrated the process to combine acetone, hydrogen peroxide and sulphuric acid to produce triacetone triperoxide (TATP) which is a highly explosive substance. The video narrator explained that hydrogen peroxide can be found in pharmacies and that sulphuric acid can be extracted from car batteries. The video concluded with a demonstration of a small IED being detonated inside the back pack of a Kurdish prisoner, killing him instantly. The video also contained detailed instructions on the use of knives to kill. A demonstration was carried out on a prisoner which appeared to result in his death.

You later admitted to the police in your second interview that you viewed the video with Mohamed and Chaarani. You also admitted that you later bought ingredients and attempted to make a bomb in accordance with the method in the video.

30 November 2016

On 30 November 2016 at about 6.00 pm, you and Mohamed engaged in an SMS conversation and arranged for Mohamed to visit you at your home. At 8.37 pm the two of you attended at the Bunnings store in Broadmeadows. Mohamed used his mobile phone to photograph a description and price label for cable speaker wire. Both the Inspire article ‘Make a bomb in the kitchen of your Mom’ and the video ‘You must fight them O Muwahhid’ specify wire as a required component of an IED. Wire corresponding to the label photographed on 30 November 2016 was seized from Mohamed’s vehicle and Chaarani’s home when they were searched.

At 9.23 pm and 9.45 pm, Mohamed and Chaarani exchanged text messages concerning the purchase of a battery.

Second trip to Clonbinane; 1 December 2016

On 1 December 2016 at 12.06 am, you and Mohamed travelled in his Toyota Corolla vehicle to Chaarani’s mother’s house in Fawkner. You collected Chaarani and the three of you set off along the Hume Freeway to the Kinglake area. At about 12.50 am the vehicle entered a 5-way intersection including Main Mountain Road and Escreets Road, Clonbinane in the Mount Disappointment State Forest. This was a very remote bush location. Data generated from the tracking device which had been installed by investigators in the vehicle reveals that the vehicle was stationary within the intersection for 3 minutes. The vehicle then drove through the intersection before again coming to a stop, this time for just over 4 minutes. The vehicle moved off at 12.58 am. It drove down two nearby tracks before returning to Melbourne. At 1.42 am and 1.49 am respectively, Mohamed dropped Chaarani at his home in Dallas and you at your home in Campbellfield. He arrived home himself in Meadow Heights at 1.59 am.

1 December 2016

At 5.09 pm on 1 December 2016, you and Mohamed spoke on the phone. You expressed an interest in inviting your brother Hamza to a ‘lesson’ at Al Muntada. Mohamed said he did not trust your brother. You told him he should trust him.

At 10.38 pm, you and Mohamed spoke on the phone. Mohamed said that he and Chaarani were on their way to collect you and would be there in ten minutes. At 10.51 pm, you were collected by Mohamed and Chaarani in Mohamed’s Toyota Corolla. At 10.59 pm, Mohamed spoke with his wife on the phone. Your voice and that of your brother could be heard in the background. Mohamed asked his wife about a prospective wife for your brother Hamza.

At 11.26 pm, the Toyota vehicle stopped at Chaarani’s house in Dallas. CCTV footage indicated four males were in the vehicle. Next the vehicle proceeded to Mohamed’s house before departing in the direction of Mount Disappointment State Park.

Third trip to Clonbinane; 2 December 2016

Mohamed’s vehicle, containing you and all three of your co-conspirators proceeded to the same 5-way intersection at Main Mountain Road and Escreets Road, Clonbinane, as had been the case on 1 December 2016, arriving at 12.57 am. The vehicle stopped at the location at 1.01 am before moving off at 1.08 am. At 1.10 am the vehicle returned to within 10 metres of where it had previously stopped, before moving off at 1.14 am and returning to Melbourne’s suburbs.

At 1.48 am, Mohamed dropped you and your brother at your house, before returning to his own residence with Chaarani.

The purpose of the trips to Clonbinane

An issue arose as to the purpose of the three trips you made to Clonbinane. Mr Doyle for the prosecution urged me to make a finding beyond reasonable doubt that the purpose of the three trips to Clonbinane was in order to pursue the conspiracy, specifically, to test, by detonating or attempting to detonate, IEDs. He submitted that that was the only reasonable explanation for these trips ‘given the circumstantial evidence that surrounds them.’[11] He further submitted that the only innocent explanation offered by you for these trips was that they were for recreation. He acknowledged it would be incumbent on the Crown to exclude this explanation, and it had done so. Mr Doyle made detailed submissions in support of his contentions.[12] I will not set them out here, but note that most of the items of circumstantial evidence relied on in the submissions have already been set out in this sentence.
[11]Plea transcript 88.
[12]Plea transcript 88-100.

Mr Gurvich, in detailed submissions which I will not set out in full here but to which I have had careful regard,[13] submitted that the evidence was insufficient to establish beyond reasonable doubt that the purpose of the trips to Clonbinane was as asserted by the prosecution. Indeed, he went so far as to submit that if anything, the evidence pointed to the proposition that there was no detonation or attempted detonation. He maintained that no detonation or attempted detonation occurred on any of the occasions. He pointed to the lack of forensic or other evidence revealing the remnants of detonations as being significant; indeed, as being an ‘obstacle’ to my reaching a conclusion beyond reasonable doubt that the purpose of the trips was as asserted by the prosecution. He relied, it seemed, only in part, upon the explanation you gave to police in respect of these trips at paragraph 51 in your statement. You had advanced an entirely innocent explanation for the trips. Mr Gurvich relied on that account only insofar as it pointed to a purpose for the trips other than to detonate explosives. He did not advance the contention, however, that the trips were unrelated to the conspiracy. When asked if he would like to advance some reasonable purpose for the trips other than that alleged by the prosecution, he initially did not seek to do so.[14] Later, however, he submitted that the attendance by you and your co-conspirators in Clonbinane would be equally consistent with a desire to discuss the conspiracy as it would be with an intention to test IEDs. That might be described as an ambitious submission.
[13]Plea transcript 101-120.
[14]Plea transcript 103.

In the circumstances, I would not be permitted to use against you a finding that the purpose of those three trips to Clonbinane was to detonate or attempt to detonate IEDs unless I was satisfied beyond reasonable doubt of that fact.[15] I am so satisfied. Indeed, I believe the evidence is overwhelming that that was the purpose of the trips. I can state my reasons very briefly for this finding, but this would be no substitute for a consideration of all of the evidence in the case, which in my view clearly supports this conclusion.
[15]R v Storey [1998] 1 VR 359.

First, the location in question was an exceedingly remote one, quite distant from where you and all of your co-conspirators lived. You would all have needed a powerful reason to have travelled to that location, on three separate occasions.

Secondly, all trips were late at night, when it could be expected the area would be deserted and the noise of an explosion would not be heard by anyone other than those in your group.

Thirdly, the second and third trips were made to precisely the same location, with short stops only at the location, sufficient time for the testing of an IED.

Fourthly, only you and either two (in the case of the first two trips) or all three of your co-conspirators (in the case of the third trip) were present.

Fifthly, there was a good deal of planning which went into the trips, and a deal of secrecy surrounding the trips as well.

Sixthly, the first of the trips on 21 November 2016 occurred on the evening of a day on which you and Mohamed had acquired some of the required components for the construction of an IED by the method set out in the Inspire article. Indeed, you have not disputed the proposition that, as set out in the opening, you and Mohamed intended to extract gunpowder from the Ramset cartridges and place it in the compact environment of the galvanised piping ‘to try and make a bomb.’[16] You also seemingly sourced a drill that afternoon from Chaarani, which could have been used to drill the necessary hole in one of the pipe elbows purchased earlier.
[16]Exhibit A at [29].

That you would then have travelled late at night with your two then co-conspirators, under a veil of secrecy, to the remote Clonbinane location for some purpose unconnected with the bomb-making activities which had occupied so much of your attention that afternoon and evening, would seem somewhat unrealistic. But that trip, of course, should not be viewed in isolation.

Seventhly, your second trip to Clonbinane, as with the first, was preceded by a trip to Bunnings in the company of Mohamed. This time, the focus was on cable speaker wire, an item which would have been of assistance in either of the bomb-making methods of which you seemingly had knowledge by that time. After your Bunnings trip on this day, Mohamed and Chaarani exchanged text messages concerning the purchase of a battery, another essential bomb-making item.

Eighthly, the explanation you gave to the police for the trips to Clonbinane was far from being a reasonable one. Indeed, it was fanciful, and I reject it as being untruthful.

The prosecution contention as to the purpose of the Clonbinane trips is an eminently logical and reasonable one which is supported by the circumstantial evidence in the case. Having considered the matter carefully, I cannot conceive of any other reasonable explanation for these trips other than that advanced by the prosecution. I am satisfied beyond reasonable doubt that the purpose of these trips to Clonbinane was to detonate, or attempt to detonate, IEDs. Whether you and your colleagues had any success in that enterprise is not known. For that reason, and for the other reasons advanced by Mr Doyle in argument, I think the lack of any finding of objective support at the scene for the detonation of explosives is insignificant.

Having made this finding, I make the point that in the overall context of this case, the finding was not a particularly significant one. Mr Doyle did submit that the testing of the explosive devices would add to your culpability. If that is so, in my view it would be to a marginal extent only, and would not be such as to affect the sentence to be passed upon you. Your culpability as represented by your plea of guilty to this heinous crime and the admitted circumstances surrounding your involvement would dictate that whether or not you and your colleagues actually got to the point of testing the explosive devices you undeniably attempted to manufacture is not very important. On any view, by the time of your arrest, you and the members of your group were well down the path of manufacturing IEDs.

Having said that, I state again that I am satisfied beyond reasonable doubt that you did indeed travel to Clonbinane on those three occasion for the purpose of detonating or attempting to detonate IEDs.

2 December 2016

On 2 December 2016 at 7.53 pm, Mohamed used his mobile phone to search ‘hydrogn (sic) peroxide from chemist’. He then viewed the Chemist Warehouse Broadmeadows website and viewed the page, ‘Buy hydrogen peroxide 3% (10 vol) 100 ml online at Chemist Warehouse.’

At 7.55 pm, Mohamed rang you and invited you and Hamza to come to his place then to go with him to Chemist Warehouse.

At 7.59 pm he called again and asked you if you had two glass jars with lids. He said if you did not, the jars could be purchased at Kmart. Hydrogen peroxide and glass jars are items specified in the video ‘You must fight them, O Muwahhid.’

You and Hamza made arrangements to go over to Mohamed’s house. At 8.40 pm, you and your three co-conspirators all travelled in your vehicle to the Chemist Warehouse in Campbellfield. Mohamed and your brother entered the store and purchased a 100 ml bottle of ‘Gold Cross’ brand hydrogen peroxide.

3 December 2016; attempted production of TATP

On 3 December 2016, you, Chaarani and Mohamed attempted to produce TATP in accordance with the instructions in the video. Relied on in proof of that contention, which you do not dispute, is the content of a phone call between Mohamed and Chaarani the next day in which there was discussion about the efforts of 3 December and frustration expressed by Mohamed at the apparent failure of the chemical reaction prepared on that occasion. On 5 December 2016 at 6.11 am a photograph was taken using Mohamed’s phone. It depicted two glass jars containing liquid inside a fridge. The liquid is alleged to have been a pre-cursor in the manufacturing process of TATP.

6 – 8 December 2016; application for firearms licence

Between 6 and 8 December 2016, Mohamed encouraged Chaarani to fill out an application form for a Victorian firearms licence. Chaarani said there were things he had to do first. On 8 December, he rang the Department of Environment, Land, Water and Planning (‘DELWP”) and stated he was applying for a firearms licence and had called to register his interest in hunting pest animals on Crown land. He paid the applicable registration fee. The procedure to obtain a firearms licence was explained to Chaarani by a DELWP staff member.

14 December 2016

On 14 December 2016, Mohamed viewed an advertisement on Facebook which related to five longarm rifles for sale. He took a screenshot of the advertisement which depicted prices of an Adler brand A-1105 lever action shotgun.

20 December 2016

On 20 December 2016 at 2.22 pm, Chaarani rang the Sunbury Police Station and enquired about registering for a firearms course. Information was provided to him.

20 December 2016; reconnaissance of Federation Square and other locations

During the afternoon of 20 December 2016, you and your three co-conspirators arranged to meet at HIYC. There was a sense of urgency to the arrangements. The purpose of the meeting was not discussed. It is alleged by the Crown and not disputed by you that the purpose of the meeting was to discuss the reconnaissance of potential target sites for the carrying out of a terrorist attack.

At 2.18 pm, Mohamed and Chaarani spoke over the phone. Mohamed indicated they needed to go for a drive to the city after they had finished training. He did not state the purpose. He said they would talk at training. He said this was more important than anything else, and told Chaarani to cancel any plans he had. As he said it, ‘this is very important, very important. We’re running out of time.’

A meeting time was arranged between you all at 6.30 pm at HIYC. By 6.43 pm, you and all of your co-conspirators were present at HIYC. You spent a period of time walking laps of the streets adjoining HIYC. It is alleged by the prosecution that the purpose of the upcoming trip into the city was discussed as you all walked around together.

At 7.35 pm, all four of you entered Chaarani’s grey Ford Falcon vehicle, with Chaarani in the driver’s seat. You sat with your brother in the rear of the vehicle.

At 8.13 pm, Mohamed’s wife called him and asked him his whereabouts. He said he was going for a drive with some people to the city to get some ice cream. When she pointed out there were ice cream shops in his area, he said, ‘Yeah, I’m going to ice cream shops in our area then.’ When Mohamed’s wife complained in a text message about his secretive behaviour, he apologised and said he would explain when he saw her. In two text messages at 8.26 pm, Mohamed said, ‘My phone is not gnna (sic) be on me for 30-49 (sic) min from now.’

During this period, the Falcon was under police surveillance, and was observed to drive into the Melbourne CBD and to park on the north side of Flinders Street, facing east, about 100 metres east of Swanston Street. This position was across the road from Federation Square and was approximately 28 kilometres from HIYC.

You and your brother got out of the vehicle and stood on the footpath, looking back towards Flinders Street Railway Station. You were joined by the others. You all then began walking west on Flinders Street. At one point Mohamed stopped abruptly, spun around and pointed in the direction of Russell Street. Your group then walked in an easterly direction along Flinders Street. Then you all crossed the road to the Federation Square side.

At 8.35 pm, the four of you turned left and walked up to the top of steps leading to Federation Square which overlooked the intersection of Flinders and Swanston Streets. You sat together on the steps. On a number of occasions, as CCTV footage[17] which was played to the court in part revealed, the four of you looked around, pointed, gesticulated, talked and laughed.
[17]Exhibit C on the plea.

At 8.41 pm, Mohamed stood up and the rest of you followed suit. You all then walked down the steps to street level on Swanston Street. Mohamed pointed to Flinders Street Railway Station and pointed his finger into his palm. The group huddled together and spoke. You then made a stabbing motion with your right arm.

The four of you then walked north towards the intersection and crossed Flinders Street at the lights, walking towards St Paul’s Cathedral. You walked past the Cathedral, looking as you did so. Mohamed pointed up at the Cathedral building.

At 8.46 pm, you all turned left into Chapter House Lane. At 8.49 pm, you emerged from the laneway and returned to Chaarani’s vehicle. The four of you then drove away in the vehicle.

21 December 2016; purchase of machetes

At 1.40 pm on 21 December 2016, you and Chaarani drove in your vehicle to the BCF store in Gaffney Street, Coburg. You approached the locked knife cabinet and asked to look at the machetes. You were asked what you needed them for . You replied, ‘We use them for hunting.’ You and Chaarani purchased two 18 inch Gerber brand machetes.

At 4.24 pm, you drove Chaarani to his home. Mohamed was also in your vehicle at this time. Chaarani exited the vehicle and placed the packaging from the two machetes in a rubbish bin. He returned to your vehicle and then removed one of the machetes from the vehicle. He walked down the driveway to his house carrying the single machete. You and Mohamed drove away a short time later.

At 5.55 pm, you and Mohamed met in separate vehicles at Al Muntada. At 6.25 pm you left the mosque in your separate vehicles and drove away.

At 7.39 pm, while driving his vehicle, Mohamed phoned you. It was arranged that Mohamed would come and pick you up. He collected you at 7.56 pm. As the two of you drove around, you had a conversation in which he expressed his nervousness about what the prosecution alleges, and you do not dispute, was the imminent terrorist attack that would result in his death. As he said, ‘I’m shitting bricks.’ You sought to reassure him and urged him to remain steadfast in pursuit of your shared objective. In doing so, you expressed you strong desire to be with your ‘sword’, which was alleged to be a reference to the machete you had purchased earlier that day. You described it as being ‘like a part of me now.’

In a phone conversation Mohamed had with Chaarani while in the car with you, he said of you, ‘The guy’s pumped. I’m shitting bricks and the guy’s pumped.’

As the conversation continued in the car, you and Mohamed discussed what would happen to your wives when you were gone. You reassured him that they would be taken care of.

Shortly after this Mohamed suggested his wife could be co-opted into the terrorist attack and blown up. You said no, because the bomb might not blow up and then she would be caught, in which case she would be in a worse position than you and he would be in if caught.

You provided reassurance to Mohamed, saying that whether you lived or died, Allah would guide or misguide your daughter. The same applied to everyone.

You then said at one point, ‘What did Al-Awlaki say? The path of jihad is not paved with, you know, with the roses. It is paved with shackles and thorns.’

He asked you how you felt when you saw the knives, and you said, ‘Bro, when I saw them, my heart pumped. I saw shahada (martyrdom) in them.’ Mohamed said that was what he would do. You said, ‘Yeah, me too obviously.’ The following was said in this conversation:

You: Some people are happy here. Some people are happy here right? So, me, I’m happy with little. You’re happy with a lot. You’re not gunna get happy until you have a lot. I’m happy with just this knife. This butter knife.
Mohamed: Alright, look why conditions?
You: You know Al-Awlaki, bro, he’s happy with his fist (inaudible).
Mohamed: There’s one condition.
You: What’s that?
Mohamed: At least me by myself if you guys don’t want to, at least me.
You: I’m not about that. Sorry, let me say that again. I’m not doubting that. I’m not like against that bro. I’m just saying by the time we do that it’s gunna take forever.
Mohamed: We need a week max!
You: Bro, I want it by Sunday bro.
Mohamed: Sunday.
You: One week bro. This Sunday is Christmas (inaudible). Bro if you want that friggen vest start today bro. Tomorrow. Bunnings.

The prosecution alleges that the proper interpretation of this portion of the conversation is that when you said ‘I want it by Sunday’, it was martyrdom to which you were referring. The prosecution asserted that you were content to achieve that using more rudimentary means if necessary, whereas Mohamed was more keen to pursue the explosive device option.[18] The reference to a vest was to an explosive vest. The mention of Bunnings was in reference to the plan to acquire more Ramset fasteners from that location. Your counsel did not dispute the accuracy of the above interpretation of the conversation.
[18]You confirmed this in R/I 1 at Q 474.

At 8.20 pm, you and Mohamed arrived at HIYC. After a short time there, the two of you travelled with another male to Al Muntada. Later, after 9.15 pm, you and Mohamed were again in his vehicle when a further conversation occurred. During that time, you listened to a recording in Arabic which included references to the virtue of Jihad and its obligation. At one point during the recording, Mohamed repeated some of the words uttered in the recording, ‘Sins are filth, purged only by sharp swords at the necks of the disbelievers.’ He asked whether you understood, and you said you did.

22 December 2016; purchase of Ramset power cartridges from Bunnings

At 12.14 pm on 22 December 2016, Mohamed and Chaarani spoke on the phone. Mohamed said, ‘I’m gunna go to Bunnings now…and get all that.’ At 12.21 pm, he was observed attending at the Bunnings store in Broadmeadows. He approached the locked trade counter and said he wished to purchase the red Ramset charges. These were the strongest available. He purchased seven boxes each containing 100 Ramset power load cartridges. At 12.25 and 12.37 pm, Mohamed telephoned you, but the calls went unanswered. You sent him a text message at 12.47 pm indicating you would catch up with him that night.

At 1.25 pm, Mohamed sent two photographs of the Ramset cartridges to Chaarani. The charges had been removed from the boxes and laid out on a table. Immediately after the photographs had been sent, Mohamed and Chaarani had a message conversation in which Mohamed pointed out that he had no tools. It is alleged on the prosecution case Mohamed intended to procure a cutting tool to remove the metal crimp to release the explosive material within each cartridge for use in the construction of an IED.

At 1.41 pm, Mohamed and Chaarani had a telephone conversation in which Mohamed said to Chaarani, ‘Please, just come past, give me the tool and go.’

At 3.44 pm, Chaarani drove to Mohamed’s house and remained for three minutes. It is alleged that he delivered the necessary tool to Mohamed.

Between 7.32 and 7.33 am, you and Chaarani exchanged text messages in which you told him to bring Ahmed (Mohamed) to the mosque.

Arrest; 22 December 2016

You were arrested at your residence at 7.56 pm on 22 December 2016.

Execution of search warrants

Items of significance to the investigation were found in the residences and vehicles of you and the other conspirators. Those items were set out in the Plea Opening and I will not pause to detail them here.

First recorded interview; 22 December 2016

The first interview commenced at 11.42 pm on 22 December 2016. It was conducted by Federal Agents Andie Butler and William O’Neale. In the early part of the interview, you gave a description of your connection with Hamza, Chaarani and Mohamed. When asked about the trip to the CBD on 21 December, you said that you and the others had been at HIYC when someone had suggested a trip to the city to get some ice cream. You said you went into town but did not get ice cream. You ended up going for a walk. You said you could not remember what you talked about, but it was not something important (QQ 302-305).

Part-way through the interview, after you had been served with an application for an extension of the investigation period, which enabled you to see some of the evidence against you, including recorded conversations in which you had been involved, you indicated you had something to say, and then made detailed admissions of your criminality, including those set out earlier in this sentence. Later, after your interview, you told your co-accused that you had taken the opportunity in the interview to assert your religion and ‘let them know’ that you were ‘genuine, pure, Islamic State here in their own country.’[19]
[19]Listening device transcript from 25 December 2016.

In connection with the recorded conversation in the car with Mohamed on 21 December 2016, you admitted you had purchased a machete, and claimed it was to be found in the pocket on the driver’s side door of your Barina (Q 486). You said you were planning to use it yourself (Q 492). You said you were ‘forcing things on everyone…Well, I’m talking about Abdullah, Mohamed and my brother…So I was forcing them that we should wear vests, explosive vests and then, um, we’re gunna ram a policeman and get his gun and then I was gunna give that gun to whoever I deemed fit to use the gun and then we were gunna go to the city square and, um, one person would use the gun and I was gunna just – whoever I see I was gunna chop and chopping to kill. And then I was gunna tell…my co’s to blow themselves up’ (QQ 492-495). As to when the attack was going to occur, you said, ‘the date hasn’t been decided but we were thinking…Christmas, New Year’s, some time within the next few months’ (Q 498). You said you had been discussing the plan for one month, since you had seen the video, which gave you an insight that it would not be as hard as you had thought. But you said you had been trying to hint to Chaarani for two years that you would have to do something. You said that after the video you had ‘started preparations’ (Q 501). You described the preparations as ‘very simple’ and told the police some of the steps taken (Q 503). You described how you went to Cambellfield with Mohamed to purchase hydrogen peroxide. You mixed ingredients but without success, and you told Mohamed to throw the substance away (Q 525). If the bomb-making efforts had been successful, you said you would have made a vest to blow yourself up (QQ 527-529). If you had been caught and subdued by police with your machete, you would be able to detonate the bomb and ‘at least have that chance to take someone with me’ (Q 532). You said you had set down guidelines as to where the attack would take place. You wanted it to be ‘somewhere where Australian citizens gather…To cause lots of damage…It has to be a place of significance and a time of significance, where it would hurt most and there was one more thing, where it will instil fear the most’ (QQ 537-544). You said the plan was discussed with Chaarani and Mohamed in the gym at HIYC. You did not want your brother attending these meetings. What you were planning with Hamza was that you would bring him to the attack site on the day and ‘put a vest on him’ (QQ 551-552). You said when you attended Federation Square, it was ‘to get an idea of places of interest.’ You had been to other places as well, and you mentioned having been to St Kilda in that regard in the last month (QQ 555-564). In respect of the trip to Federation Square, you had gone there on that day to get ice cream (Q 557). That was not a lie with which you persisted in this Court. You said the plan to run over the policeman, take a gun and use explosive vests, was yours (Q 567). You said you tried to construct a bomb having viewed the video, but never got to the point where you could actually test it. You carried out the construction at your house in the garage (QQ 572-582). You said if it had have exploded, you would have been happy because then to your mind you would have been a martyr (QQ 584-585). Some CCTV footage of your attendance at Federation Square was shown to you and you were asked how you were feeling as you walked around the area, and you said, ‘Pride…I felt like doin’ something honourable, you know, honourable’ (QQ 631-632). You described that at one point during the visit to Federation Square you were thinking about ‘how I’m gunna use my knife as efficiently as possible…So obviously when the first person gets cut people are gunna start running away so I’m thinking where are they gunna run away, how am I gunna catch ‘em?...I was going to run at them, slice their necks’ (QQ 651-654). You indicated that other members of your group expressed reservations about Federation Square, and concerns about having to chase people who ran away. You said that at one point you told them, ‘It’s not hard to kill a person with a machete. It just takes one slice to the neck.’ You demonstrated that to your colleagues by putting a hand to the neck of one of them, and that demonstration was visible on the footage (QQ 685-686). You said you did not want to act alone. As to why that was important, you said, ‘So my goals, okay, were to cause as much chaos, destruction, fear, bloodshed, that was my goal and I believe that to achieve this goal I needed the group, a group’s gunna listen and do as they’re told and so I thought in a group we could do more, to put it simply’ (Q 719). You explained that the members of the group would meet regularly at HIYC or wherever and would chat and bring up doubts, and you would try to resolve any doubts (Q 720). You wanted to make sure everyone was on the same page as you and had the same mindset. You would tell them that life is short and you were all going to another world. As you said, ‘I would try to release the doubt from their heart’ (Q 728). You made it clear you considered that with Australians killing Muslims overseas, that made civilians a legitimate target here. With Australia supporting the fight against ISIS –the government, military and police - it trickled down to civilians, the people who vote for the government (QQ 733-735). As you said, ‘Oh, look so because Australia kills Muslims, okay, therefore, I believe that it’s fine for me to kill Australians’ (Q 738). You said that you did not hate Australia, but because ‘they’re killing and it hasn’t stopped and it just keeps going then that’s why I find it necessary that Australia should face a, - you know, like, they should have at least some taste of what’s going on to my people’ (Q 743). Because, as you put it, innocent people were being killed overseas, you hoped that if you were to kill innocent people here, Australians could ‘taste’ what you were feeling. You said you wanted to give Australia ‘just a small taste of what it’s doing to my people so it can be aware this is how I feel’ (Q 746). You said you were hoping to make a video recorded message on the day of the attack which would be made public later to explain the attack (Q 746). Near the end of the interview, you said, ‘I just want you guys to know and for the sake of the recording that I understand very well the repercussions of what I’ve spoken to.’ When asked what you thought they would be, you said, ‘We’ll let the judge decide I guess’ (Q 953).

Second recorded interview; 26 July 2018

You were interviewed again on 26 July 2018, after the prosecution made it known it intended to call you on the trial of your co-conspirators. Those who conducted the interview were Federal Agent Andie Butler and Federal Agent Linsday Hall. The record of that interview formed the basis of a statement which you signed on 16 August 2018. In the interview and statement, you described the development of your radical religious ideology, and admitted:

·     That you had been open to the idea of a terrorist attack since 2013 and that for a year and a half before your arrest, you had seen every single person - woman, child, disabled, or ill – as being a potential target;
·     That at the time of the trip to Federation Square, different modes of attack were on the table, including ramming people, using explosives, shooting them or attacking them with knives;
·     In the CCTV footage from Federation Square, when you motioned toward’s someone’s neck you were illustrating killing someone with a knife or machete to the neck; and
·     With Mohamed, you bought piping and Ramset charges at Bunnings on 21 November 2016. The two of you were trying to make a bomb with Chaarani.

In addition to the above, you:

·     Denied the trips to Conbinane were to test IEDs, asserting that they were for recreation;
·     Asserted that the purpose of trying to make a bomb using TATP was to inspire your co-offenders to participate in a terrorist attack;
·     Claimed that Chaarani had purchased both machetes to clear bushland, despite admitting that your reference to ’swords’ in the recorded conversation with Mohamed on 21 December 2016 was a reference to machetes. You further claimed that you had never seen the machetes again after they were purchased.

The law

I am required by law to take into account a number of matters listed in section 16A(2) of the Crimes Act 1914 (Cth) in determining the appropriate sentence to pass upon you. Not all of these have any application to you.

The nature and circumstances of the offence; s 16A(2)(a)

As indicated, the offence to which you have pleaded guilty has a maximum penalty of life imprisonment. The prosecutor pointed out that only two other kinds of terrorism offences carry that sanction. As was stated by the Court of Appeal in DPP (Cth) v MHK:[20]

The seriousness of the offence to which the respondent pleaded guilty[21] is reflected by the maximum sentence of life imprisonment prescribed by the Criminal Code. Terrorist acts of the kind planned and prepared by the respondent are calculated to, and do, cause widespread carnage and suffering amongst civilian populations. Their objective is to strike at the heart of our liberal, democratic and tolerant society. Such actions, and the conduct indulged in by the respondent, are driven by a depraved and evil ideology and mentality, which are anathema to the fundamental values of our nation.

[20][2017] VSCA 157 [61].

[21]In that case, the offence was one of doing acts in preparation for, or planning, a terrorist act, rather than conspiring to do such acts. There is no practical difference in sentencing.

As the high maximum penalty makes clear, the preparatory nature of the offence to which you have pleaded guilty does not reduce its seriousness. As stated in MHK[22]:

It is important to bear in mind that the statutory offence created by s 101.6 of the Criminal Code was designed to ensure that persons who plan to commit dangerous acts of terror in our community be intercepted early, well before they are able to perpetrate such acts and thereby cause appalling casualties that invariably result from acts of terror. It is for that reason that an assessment of the criminal culpability of a person convicted of such an offence is not measured purely by the steps and actions taken by the offender towards the commission of the act of terror, but, in addition, by a proper understanding and appreciation of the nature and extent of the terrorist act that was in contemplation, and to which those steps were directed.

[22]Ibid [48].

I note that in your case, not only was the terrorist act in contemplation by you and your co-conspirators of the highest order of heinousness, but you were well advanced in your preparations for this attack, and collectively had taken a large number of steps and actions aimed at bringing it to fruition.

The recitation of the facts of this case which has been given to date clearly illustrates the very serious nature of the conspiracy of which you were a part for two months leading up to your timely arrest. For some years leading up to the conspiracy, you had been influenced by the violent and extreme teachings of so-called ‘scholars’ for whom that term is not at all apt. You had developed a deep-seated belief that the international efforts in resisting IS overseas amounted to an attack upon Islam, and that Australia’s participation in those efforts was to be condemned. In the end, by the time of the period of the conspiracy, you had reached the point of considering that an attack by you and your co-offenders upon innocent civilians in the City of Melbourne would be justified. You set about preparing for such an attack and, with your co-offenders, undertook numerous actions in pursuit of that wholly evil aim. You had in your mind the intention of causing maximum death, damage, and fear. Furthermore, you wanted the fear and trauma in the community to be ongoing and extreme; hence, the plan to carry out this attack close to Christmas.

I am satisfied that the plan to carry out this attack was well-advanced and that the attack was imminent. Your timely arrest and the extraordinary investigative work undertaken by the Joint Counter Terrorism Team comprising members of Victoria Police and the Federal Police which preceded it was all that prevented a devastating terrorist attack in the heart of the City of Melbourne.

Defence counsel realistically acknowledged in his submissions that you were to be sentenced on the basis that your planning and preparation was for the purpose of causing death, injury and suffering, and that your conduct ‘was entirely morally bankrupt and totally cowardly.’[23]
[23]Defence Outline at [11].

That phrase came from the judgment in MHK where the Court stated:[24]

In this case, the respondent planned and prepared to assemble and use bombs for the purpose of causing indiscriminate and significant death, injury and suffering amongst our community. The acquisition, and planned use, by the respondent of large quantities of screws, as shrapnel in the bombs, is a clear demonstration of his intent in that regard. The terrorist acts, planned and prepared by the respondent, were directed specifically against innocent and entirely defenceless citizens. As such, the actions, and the underlying intent of the respondent, were entirely morally bankrupt and totally cowardly. The fact that such actions, on occasions, involve the deliberate, or accidental, death of the terrorist, does not invest them with any skerrick of courage, as they are ordinarily accompanied by a warped sense of self-righteous martyrdom and self-glorification.

[24][2017] VSCA 157 [62].

It is worth noting that the above words of the Court of Appeal were made in respect of an offender who was 17 years old at the time of his offending, and was acting alone in Australia, but in consultation with a 20 year old jihadist in the United Kingdom. As for you, you were a 22 year old, married, father of one at the time of your offending, who was acting in combination with a group of other like-minded adults in pursuit of your perverse aim.

The various matters to which I have thus far referred in this sentence make it abundantly clear that yours is a very serious instance of the very serious crime to which you have pleaded guilty. Whilst all terrorist attacks are by their nature serious, not all of them involve the clear intention to bring about substantial death and suffering present in your case. Not all of them are committed by people acting together as a team. Not all of them involve the degree of planning apparent here. Your offence is one of the highest order of seriousness.

Deterrence and just punishment; s 16A(2)(j), (ja) and (k) and other important considerations

The prosecution contended on the plea that prominent considerations in sentencing an offender for terrorist offences are protection of the community, the punishment of the offender, denunciation of the offence, and deterrence, both specific and general. R v Alou (No 4)[25] was relied on in support of that proposition. Mr Gurvich appropriately conceded the correctness of the prosecution’s position.
[25][2018] NSWSC 221 [165] (Johnson J).

Where general deterrence is concerned, the Court of Appeal in MHK dealt with a submission made on behalf of the Respondent that in cases such as that, general deterrence should be given less weight because ordinarily the offender in such cases is intent on carrying out a terrorist act in which the offender himself is killed. In rejecting that contention, the Court stated:[26]

In each case, as in the present case, the preparation and planning for a terrorist act takes some time. It is during that time frame that the concept of general deterrence may have some important effect. Put simply, those planning to commit acts of terror must appreciate that, if they are apprehended in the process of preparing to perpetrate such acts, they will forfeit their liberty to live within our community for a very lengthy period of time. It is in that way that those seeking to enjoy a perverted form of glory, or satisfaction, from the perpetration of such acts, can be brought to understand that the cost to them, if they are intercepted, will be particularly high.

[26]Ibid [53].

In respect of the importance of protection of the community and incapacitation of the offender, the Court in MHK held:[27]

Further, the authorities have made it clear, and properly so, that the concepts of protection of the community, and incapacitation of the offender, are separate considerations to that of general deterrence. As we have stated, the very purpose of provisions such as s 101.6 contained in Div 101 of the Criminal Code is to intercept and interrupt planned acts of terror. Persons who commit such an offence ordinarily only desist from doing so because they are apprehended. As such, at the time of their apprehension, they are, a fortiori, persons who pose a real danger to the community. Unless the courts give adequate weight to the concepts of protection and incapacitation, they would fail to comply with the clear intent of the legislature in creating offences of the type with which this case is concerned.

[27]DPP (Cth) v MHK [2017] VSCA 157 [54].

Your character, antecedents, age, means and physical or mental condition; s 16A(2)(m)

Your personal history and background was set out in the report of Patrick Newton, Clinical and Forensic Psychologist, which became Exhibit 2 on the plea. In short, you are the second of three children born in Melbourne to parents who moved here from Lebanon. Your father is a taxi driver and was a strict disciplinarian who encouraged the family to pursue Islamic values and practices. Your mother has suffered depression for much of her life. Your parents divorced when you were about 10. Your father remarried. After some initial instability in your life, you lived with your father during the week and your mother at weekends. This arrangement caused some difficulties to you. You remain on good terms with your father, but apparently not with your mother.

You attended Darul Ulum College, a Muslim school, from Prep to Year 12. You spoke Arabic and English at home. You were a good student but your behaviour was sometimes disruptive. You successfully completed VCE. You commenced tertiary studies in three disciplines, completing one year of forensic science, one year of computer science, and two years of a civil engineering degree. You apparently quickly became bored with anything you studied.

You have been similarly unfocused in your employment, working in various unskilled positions.

You have been married to your wife Imam since 2013 and you have a two year old daughter Essma.

You have no history of significant mental health problems although you have at times suffered from stress. You have never consulted a mental health professional or been prescribed medication. Mr Newton saw no sign of any mood disorder, anxiety-related disorder, or adjustment disorder at the time he spoke with you. Nor was there any indication that you were suffering the effects of any such disorder at the time of your offending.

You have never consumed alcohol and your experimental use of cannabis in your teenage years never became a problem for you.

You developed an obsessional involvement in computer gaming. Although this may have interfered with your tertiary studies and other activities, and although Mr Newton considered it likely your condition met the proposed Internet Gaming Disorder included in the appendix to DSM-5, there is nothing to suggest your problem gaming had any part to play in your offending.

You have no prior criminal record and have never been previously involved in the criminal justice system.

Plea of guilty; s 16A(2)(g)
Degree of contrition; s 16A(2)(f)
Co-operation with law enforcement agencies; s 16A(2)(h)

Defence counsel concentrated on what he described as ‘three overlapping areas of mitigation’ in the very comprehensive and thorough plea mounted on your behalf.[28] These were your plea of guilty, the degree to which you have shown contrition for the offence, and the degree to which you co-operated with law enforcement agencies. In respect of these three matters, there were substantial areas of dispute between the prosecution and the defence.
[28]Submissions commenced at plea transcript 133.

You pleaded guilty to this crime at a time which was described by Mr Gurvich and accepted by the prosecution as being at the earliest opportunity. You did not participate in the committal process held for your co-accused and entered a plea of guilty at the conclusion of the committal. I take into account in your favour, as the law requires me to do, your plea of guilty and the early stage at which you entered it.

As to your entitlement to an allowance for the utilitarian benefit of your plea of guilty, there is no dispute. For those reasons alone, your plea of guilty would lead to a significant reduction in your sentence.

Mr Gurvich submitted that not only should you receive an allowance for the utilitarian benefit of the plea, but that in addition you should receive full allowance for what have been called the subjective criteria attaching to your plea, namely remorse, willingness to facilitate the course of justice, and acceptance of responsibility.[29] When that submission was made, I indicated to Mr Gurvich that whilst there would be no difficulty insofar as the second and third of the subjective criteria are concerned, I had a difficulty in accepting that in the circumstances of this case, your plea of guilty would be indicative of remorse on your part. In the end, the prosecution made plain its position that the allowance to be made to you in respect of all aspects of the subjective criteria should be reduced in the circumstances.
[29]R v Phillips (2012) 37 VR 594 [68]-[69].

Your counsel developed detailed submissions aimed at having me conclude that your plea of guilty in this case was indicative of remorse, and furthermore, that the overall evidence would warrant a conclusion on the balance of probabilities that you are, indeed, genuinely remorseful for your involvement in this crime. On the issue of remorse, he pointed to the plea of guilty and the stage at which you entered it, the fact that you made what counsel described as ‘full and comprehensive admissions to the offence’ when first interviewed by the police, and to the later involvement by you in a second interview and the provision of the statement which arose from it. A little later Mr Gurvich described your admissions in the first interview as ‘candid and early.’ When challenged by me with the fact that there were a number of things said in both conversations with the police which were not the truth, counsel submitted that rather than descending into a detailed analysis of what the Crown case is at trial as opposed to what you revealed in your interview and your statement, I should ‘approach the matter as whether admissions were made and whether those admissions were sufficient to establish the case against both [yourself] and [your] co-accused, which they clearly were.’ [30]
[30]Plea transcript 137.

When pressed further about the truthfulness of the statements made by you to the police, Mr Gurvich maintained that on the whole, you were ‘broadly telling the truth.’

Mr Gurvich submitted that without your admissions, the case against you was ‘far from powerful.’

It was submitted that your consistent conduct since your arrest was of an acceptance of your responsibility, and that you had expressed regret and contrition for what you had done from an early stage.

On the issue of contrition or remorse, which terms were used interchangeably in the plea, the contention made on your behalf was that this was shown by a combination of three main things. First, your guilty plea, which as I said was relied on itself as evidencing remorse. Secondly, the immediate admissions in the first interview. And thirdly, the signed statement made to the police.

In addition, counsel contended that there was evidence that you have drawn back from your previously-held extreme views since your arrest, as evidenced by things you apparently told Mr Newton about recent meetings you have had with Imams from the Islamic Council of Victoria. You told Mr Newton that you now disavow any commitment to violent jihad, and that you now find your previous commitment to such ideas abhorrent and repugnant.

Mr Gurvich invited me to have some confidence that there has been this drawing-back in light of the other matters pointed to in connection with contrition. He described this drawing-back, however, as being in its early stages, and he did not press particularly hard on the point.

All-in-all, counsel submitted there was ‘proper remorse’ in this case.

On the issue of co-operation with the police, it was made clear by Dr Boas, who made the submissions on this point, that the ‘co-operation was full and frank’,[31] and extensive, and that you should receive a considerable discount for that co-operation. He made it clear that what was claimed in your favour was your past co-operation, not any future co-operation. On that point, I note that I was informed on the plea that you have refused to give an undertaking to assist authorities in the prosecution of your co-accused.
[31]Plea transcript 170.

When Dr Boas was confronted by me with some of the lies told by you to the police, and asked whether those put his submission on shaky ground, he submitted that that was not the case. He maintained your co-operation was full and frank in spite of your lies, most of which, as Dr Boas characterised them, were about unimportant matters, or at least, as he later submitted, not critically important matters. Dr Boas went as far as to say that the truth about the subject matter of some of your lies was not actually needed by the prosecution, and was no more than ‘colour and movement.’[32]
[32]Plea transcript 190.

Dr Boas referred me to the decision of R v Cartwright[33] in support of his submissions. I will not detail the way in which this decision was relied upon by Dr Boas, but I have read the case and of course taken into account the submissions of Dr Boas in connection with it.
[33](1989) 17 NSWLR 243.

In the end, Dr Boas invited me to conclude, on the basis of the facts of this case, in a way supported by the authorities, that your co-operation has been, if not full and frank, then something very close to that.

Conclusion in respect of contested matters

The submissions made on your behalf by Mr Gurvich and Dr Boas in respect of these contested matters relied upon in mitigation were comprehensive and made with dogged determination. It remains for me to say, however, that for the most part, I do not accept them.

Mr Doyle advanced submissions in response to the defence submissions which were compelling, and which largely, I do accept. I will not set out the prosecution submissions in this sentence, but they are clearly able to be discerned from the outline contained in the Crown’s Submissions on Sentence[34] and in the transcript of the plea itself.
[34]Exhibit E.

In the circumstances of this case, I do not consider that your plea of guilty, significant though it is in the sentencing process, was indicative of remorse. It was made at a time when you were fully aware of the overwhelming strength of the case against you, which strength was due in no small part to the admissions of guilt you had made, but also to the other substantial evidence of which you were well aware which implicated you in the crime. Whilst the strength of the prosecution case is entirely irrelevant to the measure of the discount due to you for the utilitarian benefit of your plea of guilty, it is relevant to the subjective criteria, one of which is remorse or contrition.

On the question of contrition more broadly, I can discern little if any evidence of it, and I am certainly not satisfied on the balance of probabilities that you are actually contrite or remorseful. I have already said something about the plea of guilty and the fact that it does not, in the circumstances, evidence remorse.

The other things relied upon as indicating your remorse were your supposedly ‘full and comprehensive’ and ‘candid and early’ admissions to the police. To my mind, your admissions were neither full nor comprehensive. Nor were they candid. Candid, according to the Macquarie Dictionary[35], means ‘frank; outspoken; open and sincere’ or ‘honest; impartial.’ When you spoke to the police in the two interviews you had with them, you were none of these things. Rather, you sought to mislead them, and told a number of clear lies about matters of great importance. You did so before you were provided with the Application to Extend Investigation Period in relation to a Terrorism Offence[36] (‘the Application to Extend’) part-way through the interview. You did so on the resumption of the interview. And tellingly, you did so on the occasion of the second interview which took place on 26 July this year, a full 19 months after your arrest.
[35]Fifth Edition.
[36]Contained behind divider 4 in Exhibit B.

In considering the circumstances in which you commenced to reveal much of the truth surrounding the conspiracy, but continued to put forward lies about it, it is important to note the content of the Application to Extend which was provided to you during a break in the interview, and which you clearly had the opportunity to read prior to the re-commencement of the interview. That document revealed to you that investigators knew the identities of the participants in the conspiracy, knew about the purchase by some group members of articles in connection with the construction of an IED, knew of the reconnaissance expedition to Federation Square, and had secretly recorded certain conversations involving members of the group, including, critically, the conversation between yourself and Mohamed in his motor car on 21 December 2016 in which you had spoken about the terrorist attack which was to take place on or about Christmas Day. From the time you read this document, it may have seemed to you, to use the vernacular, that the game was up, certainly where you were concerned. The truthful admissions you made after that time cannot sensibly be considered in isolation of this fact. On the other hand, the knowledge which you then had of some aspects of the case against you did not lead you to tell anything like the full truth.

I will not detail all of the lies you told, which are revealed on a consideration of the material as a whole. Some of the important ones, all but the first three of which were told after you were shown the Application to Extend, were the following:
I.You falsely claimed that your meeting with the co-conspirators on 20 December 2016 at HIYC was not planned;
II.You lied about the purpose of the group in going to the city on that day, claiming it was to buy ice cream;
III.You falsely claimed you could not remember what you all spoke about in the CBD on that occasion;
IV.You initially falsely denied having viewed the ‘You must fight them, O Muwahhid’ video;
V.You misrepresented the dynamic of the group, claiming responsibility for recruiting all members and claiming you controlled the activities of the group, in order to shift blame from the others to yourself;
VI.You falsely claimed that nothing had occurred by way of attempts to construct an IED until after you had seen the ‘You must fight them, O Muwahhid’ video;
VII.You falsely claimed the group never got an explosive device to the point where it could actually be tested;
VIII.You falsely claimed the bomb making activities occurred at your house rather than at Mohamed’s house;
IX.You falsely denied the true purpose of the trips to Clonbinane;
X.You attributed a false explanation for the purchase of the machetes, and falsely denied having seen them again, in spite of the fact you yourself had retained possession of one of them, and were intending to use it in the planned attack.
In understanding your motivation for speaking when you made the admissions to the police contained in the first interview, and understanding whether those admissions were accompanied by or in any way connected to remorse, I was also assisted by the things you said in the secretly recorded conversations in which you took part in the Custody Centre on 25 and 26 December 2016, only days after your arrest. I will not detail these conversations to which Mr Doyle took me during his submissions on sentence, but I make the point that the things you said were of no assistance at all to the position you sought to adopt in this plea that you exhibited remorse from an early time in this case.

In light of the above litany of deliberate lies told by you to investigators, it is perhaps surprising that it was asserted on your behalf so strongly in this Court that you had made admissions to the police which were full, comprehensive and candid. In reality, they were anything but full, comprehensive and candid. Counsel on your behalf sought to have me consider that the lies you told were not about important matters, were about things that were no more than ‘colour and movement’, and could be in a sense put to one side because of the many important truthful things you did say. I do not accept that analysis. The reality is you did say a great deal which was the truth, but you did so for your own purposes, and throughout it all, you steadfastly refused to tell anything like the full truth about this conspiracy.

In my view, whilst as I have said already your plea of guilty is a significant matter, and you must receive full credit in respect of the utilitarian benefit of that plea, in the circumstances of this case, remorse cannot be inferred from the plea, and overall, it can be concluded that the subjective criteria of a willingness to facilitate the course of justice and acceptance of responsibility played little or no role in your decision to plead guilty. As a result, the discount allowed to you will be correspondingly reduced beyond what it might have been were the circumstances different.

In respect of remorse, as I have already in effect indicated, there is scant evidence of that.

Insofar as one matter relied upon in part by your counsel in support of the submissions on remorse was the supposed drawing-back or deradicalisation you have undergone since being in custody, there is little evidence of this. You did not give evidence in support of this contention, which is of course your right, and nor was any other evidence called. The things you apparently told Mr Newton go little way towards establishing the point. You harboured long-standing radical views at the time of the conspiracy. It remains to be seen whether or not in time, those views will subside. If they do not, you will remain a danger to the community.

On the matter of co-operation with law enforcement agencies, much of what I have already said applies to that matter. Reliance was placed on your behalf on the contention that your co-operation had been ‘full and frank’ and extensive. It follows from what I have said that I am not satisfied that is so. You did provide much information to the authorities which was truthful and helpful. Mr Doyle described your admissions as ‘significant’ and as involving co-operation with the authorities. I take this past co-operation into account in your favour in sentencing you.

It must be noted, however, that in light of the fact that you have not promised future co-operation, the co-operation you provided in the past, imperfect as it was, would lead to a relatively modest reduction in sentence. That is to be contrasted with the very substantial discount to which you undoubtedly would have been entitled had you been prepared to undertake to assist the prosecution.

Your mental state

The report of Mr Newton was tendered on your behalf. It was of assistance in setting out your personal background. It did not point to the existence in you of any mental condition, past or present, which would be relevant to the sentence to be passed upon you. In short, the principles enunciated in R v Verdins[37] have no application in your case.
[37](2007) 16 VR 269.

Your relatively young age

You were 22 years old at the time of your offending, and are still only 24. In some cases, your relatively young age would be an important sentencing consideration. It is not so here. Even had you been a truly young person, as was the case in DPP v MHK[38] and DPP v Besim[39], that would have been a matter of greatly reduced significance due to the great seriousness of the offending and the clear importance of denunciation, just punishment, protection of the community, and deterrence in the sentence to be passed. In your case, you were a mature 22 year old, married, father at the time of your crime. Your offending was very much that of an adult and not that of a young person.
[38][2017] VSCA 157.
[39][2017] VSCA 158.

Prospect of rehabilitation; s 16A(2)(n)

Little time in your plea hearing was spent addressing the matter of your prospects of rehabilitation. This is not surprising. The authorities dictate that the prospects of rehabilitation will generally have little part to play in sentences imposed for terrorism offences. Mr Gurvich did submit, in light of his assertion that you were in the early stages of a path to de-radicalisation, that ‘cautiously’ I could conclude that there are some prospects of rehabilitation. I reach no such conclusion, but nor do I rule out the prospect of rehabilitation in the future. In your case, you will necessarily spend many years in custody before again being permitted to live in the community. If you retain your previously held extreme views, the prospects of rehabilitation will be dim. Whether that ends up being the case remains to be seen.

Your role in this conspiracy

I have endeavoured to understand the true nature of the role you played in the serious conspiracy which has brought you before this Court. Although in your interviews with the police, you attributed to yourself a dominant role in the crime, neither side before me asserted that that was actually the truth. It is clear, however, that you were an enthusiastic, committed and important member of your criminal group. Mr Gurvich submitted that you had a leading and encouraging role in the conspiracy. Mr Doyle described you as a ‘motivator’ in the conspiracy. He indicated the Crown put you, Mohamed and Chaarani as being more-or-less equal participants. I will sentence you on that basis, although it must be stated that, as clearly evidenced by the secretly recorded conversation between you and Mohamed the day before your arrest, you had a commitment to the aim of the proposed terrorist attack which was seemingly unwavering, even as the time for the attack drew nigh. You seemingly had none of the qualms held by Mohamed at that time.

One respect in which your role in the conspiracy was even more serious than that of Mohamed and Chaarani was in connection with the recruitment of your brother Hamza. He was younger than you, and apparently looked up to you. He was described on the plea as being someone intellectually less capable than you and less sophisticated in his thinking. Your counsel did not take issue with that characterisation. You recruited him into the conspiracy, and you indicated during the first interview that your plan was to bring your younger brother to the scene of the attack and ‘put a vest on him’, by which you meant an explosive vest.

Your recruitment of your brother into this plan is a significant aggravating feature of your offending. That you were contemplating using Hamza, a person who you knew looked to you for guidance, in that fashion, speaks volumes of the extreme level of your criminality and the warped nature of your thought processes.

Current sentencing practices

One of the matters I am required to take into account in determining the appropriate sentence to be passed upon you is sentencing practices across the country in relation to the offence to which you have pleaded guilty, and variants of it. To that end, I have been referred to a number of decisions of intermediate appellate courts in Australia touching on the sentencing principles and the sentencing practices for terrorism offences. I have taken these decisions into account insofar as the principles are concerned, and insofar as the decisions may serve to illustrate, although not define, the possible range of sentences available in this case.[40] I made the point several times during the plea that no decision in any other so-called comparable case amounted to a precedent binding me in the sentence be to imposed in your case.
[40]The Queen v Pham (2015) 256 CLR 550 at [28]-[29] (French CJ and Keane and Nettle JJ).

Where this case sits in the spectrum

It is apparent that long sentences of imprisonment have invariably resulted, sometimes after the intervention of appellate courts, in respect of offences under s 101.6(1) of the Criminal Code or conspiracy to commit such an offence. This is hardly surprising. The maximum penalty for the offence is life imprisonment, and for all the reasons enunciated in the authorities, the offences are of extraordinary seriousness.

This case is not exactly the same as any other case, and in sentencing you, I am required to take into account all the circumstances of this individual case. Having considered all the objective circumstances of the conspiracy which has brought you before this Court, I am driven to the conclusion that yours was a crime at the upper end of the range of seriousness of such offences. Other than your plea of guilty which is significant, your modest past co-operation with the authorities, and your lack of any prior criminal history, there are few mitigating circumstances. Your offending is deserving of, and can only be met by, a very lengthy term of imprisonment.

S 6AAA Sentencing Act 1991 (Vic) declaration

There is some debate about whether s 6AAA of the Sentencing Act 1991 (Vic) applies to sentences for Commonwealth offences.[41] In accordance with the usual practice, I will make such a declaration. It will be an indication to you of the extent to which your plea of guilty has been taken into account in your favour, in spite of the findings I made in respect of the subjective criteria attaching to that plea.
[41]See DPP (Cth) v MHK [2017] VSCA 157 [76].

Duration of non-parole period relative to the head sentence

I am required by law[42] to fix a non-parole period of at least three quarters the length of the head sentence. The non-parole period I will shortly announce will exceed three quarters the length of the head sentence in your case. It is the non-parole period which reflects the minimum period I have determined that justice requires be served by you in this case having regard to all the circumstances of the case before being released on parole.

Explanation of sentence; s 16F Crimes Act 1914

[42]Crimes Act 1914, s 19AG(2).

The law required me to explain to you in language you will understand the purpose and consequences of fixing a non-parole period in your case. The sentence I will impose on you will entail a period of imprisonment of not less than the non-parole period I will shortly announce. After that time, if you are considered suitable for release on parole, you will serve the balance of your sentence in the community. During that period on parole, if it occurs, you would be subject to conditions and you would be subject to supervision. Were you to fail to fulfil those conditions or comply with the reasonable requirements of your supervisor, you would be liable to be returned to custody to serve the balance of your sentence.

Warning pursuant to s 105A.23 of the Criminal Code (Cth)

In addition, I need to warn you pursuant to s 105A.23 of the Criminal Code (Cth) that an application may be made under Division 105A of the Code for a continuing detention order requiring you to be detained in a prison after the end of your sentence for the offence to which you have pleaded guilty.

Conclusion

The objective circumstances of the intended crime at the heart of the conspiracy for which you are to be sentenced are of the highest order of seriousness. You harboured extreme and unacceptable views about the need for and propriety of carrying out outrageous violence against innocent civilians. These views have no place at all in this society, or indeed, in any civilised society. Acting with three like-minded people, with whom you constituted a dangerous team, and as such posed even more of a threat to the safety of the public than if you had been acting alone, you went about preparing for a multi-faceted attack which would have been designed to cause maximum death and suffering and maximum trauma and distress to the community. For the two months of the conspiracy, as you made the substantial preparations so clearly demonstrated by the evidence, you were on the path towards carrying out a mass murder of innocent civilians in a public area in the CBD of Melbourne. It would have been, as was your intention, a crime which would shock this country to the core. It would have represented a shocking and entirely unjustified attack upon our democratic system, a system under which you were brought up and have always lived, but whose rules you so flagrantly chose to ignore. As I said earlier, I am satisfied that the plan to carry out this attack was well-advanced, that the attack was imminent and that your timely arrest by the dedicated and expert investigators of the Joint Counter Terrorism Team was all that prevented a devastating and murderous terrorist attack in the heart of the City of Melbourne.

The sentence I will shortly pass upon you is designed to protect the community, to appropriately punish you for your offending, to clearly denounce your conduct, to deter you from any like offending in future, and to send a very clear message to like-minded people in this community who would contemplate planning for and carrying out a terrorist attack that if caught, they will be subject to very strong punishment.

Sentence

Please stand Mr Abbas.

Ibrahim Abbas, for the offence of conspiring to do acts in preparation for or planning a terrorist act, you are sentenced to be imprisoned for 24 years.

I fix a non-parole period of 20 years.

The sentence I have just passed commences today.

Pursuant to s 18 of the Sentencing Act 1991, I declare the period of 637 days up to and including 19 September 2018 during which you have been held in custody in relation to this offence must be reckoned as a period of imprisonment already served under the sentence.

Pursuant to s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty in this case, I would have imposed a sentence of 28 years’ imprisonment with a non-parole period of 23 years.

[2018] VSC 553

20 September 2018