JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	15, 16 October 2019
DATE OF SENTENCE:	29 November 2019
CASE MAY BE CITED AS:	R v Abbas, Chaarani & Mohamed
MEDIUM NEUTRAL CITATION:	[2019] VSC 775

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CRIMINAL LAW — Sentence — Offenders convicted by jury of conspiring to do acts in preparation for or planning a terrorist act — Offenders supported Islamic State — Offenders’ preparatory acts done in contemplation of a terrorist act involving mass slaughter of innocent civilians in Melbourne CBD on or about Christmas Day 2016 — Use of improvised explosive devices, bladed weapons and firearms all contemplated — Purchases of ingredients and components for explosive devices carried out — Improvised explosive devices manufactured and tested — Steps taken to acquire firearms — Bladed weapons purchased — Reconnaissance carried out at Federation Square and surrounds — Attack imminent when offenders arrested — Crime at upper end of range of seriousness — Admissions of guilt and renunciation of Islamic State and violent jihad by Chaarani and Mohamed when testifying at plea hearing — Evidence of remorse on part of Chaarani and Mohamed — Co-offender Ibrahim Abbas pleaded guilty at first reasonable opportunity and sentenced to 24 years’ imprisonment with a non-parole period of 20 years — Parity — Chaarani and Mohamed already undergoing sentence for other terrorism offences — Totality — Avoidance of crushing sentence — Abbas sentenced to 22 years’ imprisonment with a non-parole period of 16 years and six months — Chaarani and Mohamed each sentenced to 26 years’ imprisonment (16 years cumulative) with a new non-parole period of 28 years and six months fixed — Criminal Code (Cth) ss 11.5(1), 101.6(1), 105A.23 — Crimes Act 1914, ss 16A, 16F, 19AB(2), 19AG — R v Abbas [2018] VSC 553, R v Alou (No 4) [2018] NSWSC 221 , R v Beck [2005] VSCA 11, Lowe v The Queen (1984) 154 CLR 606, R v Mangelen (2009) 23 VR 692, DPP (Cth) v MHK (2017) 52 VR 272; [2017] VSCA 157.

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N Papas QC	Commonwealth Director of Public Prosecutions
For the Accused Abbas	Ms F Gerry QC with Ms S Condon	Stary Norton Halphen
For the Accused Mohamed	Mr J Kelly SC with Ms A Cannon	Leanne Warren and Associates
For the Accused Chaarani	Mr P Tehan QC	James Dowsley and Associates

HIS HONOUR:

Circumstances of the offence

Hamza Abbas, Abdullah Chaarani and Ahmed Mohamed, after a lengthy trial,[1] you were each convicted of conspiring between 21 October 2016 and 22 December 2016 with one another, and Ibrahim Abbas (hereafter referred to as Ibrahim), to do an act or acts in preparation for or planning a terrorist act. Your crime was a contravention of ss 11.5(1) and 101.6(1) of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Abbas, Chaarani & Mohamed

Details

AGLC: R v Abbas, Chaarani & Mohamed [2019] VSC 775
Case: [2019] VSC 775
Decision Date: 29 November 2019

CaseChat Overview and Summary

In the matter of R v Abbas, Chaarani and Mohamed, the respondents were found guilty by a jury of conspiring to carry out acts in preparation for or planning a terrorist act. Their plan involved the mass slaughter of innocent civilians in the Melbourne CBD on or about Christmas Day 2016, with the use of improvised explosive devices, bladed weapons and firearms. The respondents supported the Islamic State and had already carried out preparatory acts, including the purchase of ingredients and components for explosive devices, manufacturing and testing of improvised explosive devices, steps to acquire firearms, and the purchase of bladed weapons. They had also conducted reconnaissance at Federation Square and its surrounds, with the attack imminent when they were arrested. The court had to determine the appropriate sentence for the respondents considering the seriousness of the crime, admissions of guilt, renunciation of violent jihad, evidence of remorse, and the need for parity and totality in sentencing.

The court considered the crime to be at the upper end of the range of seriousness, with the potential for a substantial loss of life. The respondents’ admissions of guilt, renunciation of violent jihad, and evidence of remorse were mitigating factors. The court also had to consider parity, given that the co-offender Ibrahim Abbas had already pleaded guilty and was sentenced to 24 years’ imprisonment with a non-parole period of 20 years. Additionally, the court needed to consider the totality principle to avoid imposing a crushing sentence on the respondents, especially as Chaarani and Mohamed were already undergoing sentences for other terrorism offences. The court also had to ensure that the sentences were proportionate and reflected the gravity of the offence.

After considering all the relevant factors, the court sentenced the respondents to 26 years’ imprisonment (16 years cumulative) with a new non-parole period of 28 years and six months fixed. Abbas was sentenced to 22 years’ imprisonment with a non-parole period of 16 years and six months. The court found that these sentences reflected the seriousness of the crime, provided for parity with the co-offender’s sentence, and avoided a crushing sentence while still reflecting the gravity of the offence. The court also considered the need for deterrence and the protection of the community in its sentencing decision.

The final orders of the court were that the respondents be sentenced to imprisonment with the specified non-parole periods. The court also ordered that the sentences be served concurrently with any other sentences the respondents were already serving.

Orders