R v AH

[2018] NSWSC 973

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v AH [2018] NSWSC 973
Hearing dates:	31 May 2018
Decision date:	22 June 2018
Jurisdiction:	Common Law - Criminal
Before:	Latham J
Decision:	The offender is convicted of the offence of doing an act in preparation for, or planning a terrorist act. The offender is sentenced to 12 years’ imprisonment, to date from 24 April 2016, expiring 23 April 2028. A non parole period is fixed at 9 years, expiring 23 April 2025. The offender is to be detained as a juvenile until [the date of his 21st birthday]. Pursuant to s 105A.23 of the Criminal Code, the offender is warned that an application may be made under Division 105A of the Criminal Code for a continuing detention order requiring that the offender be detained in a prison after the end of his sentence for the offence.
Catchwords:	SENTENCING — terrorism offences — doing an act in preparation for a terrorist act — intervention programs — juvenile offender — subjective circumstances of offender give way to community protection — specific and general deterrence.
Legislation Cited:	Crimes Act 1914 (NSW), s 16A(2)(a) Criminal Code (Cth), s 101.6(1), 105A.23
Cases Cited:	DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 KT v R [2008] NSWCCA 51; 182 A Crim R 571 R v Alou (No. 4) [2018] NSWSC 221 R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 R v Kahar [2016] 1 WLR 3156 R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691
Category:	Sentence
Parties:	Regina (Crown) AH (Offender)
Representation:	Counsel: Ms W Abraham QC (Crown) Mr G James QC (Offender)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Oxford Lawyers (Offender)
File Number(s):	2016/125903
Publication restriction:	Existing non-publication and suppression orders, made 2 May 2016 in the Children’s Court, are preserved.

sentence

1. The offender pleaded guilty on 24 March 2017 in the Children’s Court to one count of doing an act in preparation for, or planning, a terrorist act, pursuant to s 101.6(1) of the Criminal Code (Cth). The offence was committed between 17 and 24 April 2016 and carries a maximum penalty of life imprisonment.

2. The facts constituting the offence are not in dispute. An agreed statement of facts is part of Exhibit A on sentence. The agreed statement includes the following relevant background to the offence.

3. The offender was born on XXXXX in Sydney, the middle of three children. His upbringing was a conventional one in a moderate Islamic household. In May 2015 the offender came to the attention of the Joint Counter Terrorism Team (JCTT) as a result of accessing violent religious extremist material via the internet. The offender’s home was searched by the JCTT, an event that shocked the offender and disclosed the offender’s activities to his family for the first time.

4. On 30 June 2015, the JCTT referred the offender to a diversion programme administered by the National Disruption Group (NDG) within the Federal Police. The aim of the programme was to formulate a plan, with the consent of the offender, which would address the offender’s risk of radicalisation and counter any tendency towards violence and extremism.

5. On 29 October that year, members of the NDG met with the offender and his father to discuss the programme and to tailor activities for the support of the offender such as gym membership, personal training and religious mentoring. In the course of those discussions, it became clear that the offender had been subjected to bullying at two schools and the family had withdrawn the offender from both of them as a result.

6. In early November 2015, a member of the NDG contacted the offender’s father on two occasions to enquire about the offender’s progress and to impress upon the family the importance of the offender’s engagement with people of his own age. The offender’s father informed the NDG representative that the offender was working up to twelve hours a day for six days a week and that the family no longer discussed the offender’s conduct and the subsequent search by the JCTT.

7. On 16 November 2015, the offender and his father undertook a tour of a gymnasium where membership, boxing and religious mentoring were available. Three days later, the offender agreed to the programme which had been devised for his benefit.

8. Approximately one month later, when a member of the NDG contacted the offender’s father, it emerged that the offender had not taken up any of these activities, due (it was said) to his long hours of employment. A similar response was received at the end of January 2016. It appears that the offender’s father considered that, as long as the offender was engaged full time at work, the risk that had previously been identified no longer existed.

9. There is material in the offender’s case that seeks to explain the offender’s failure to engage with the programme, namely that after November 2015, the offender did not receive any further visits from the NDG and felt abandoned by them, although the offender also acknowledges that he was aware that the NDG had spoken with his father on another occasion. The most that can be said is that the offender and his father expected more active and ongoing intervention from the NDG, whilst the NDG expected the offender and his father to take responsibility following the initial contact. Whatever the explanation, this lost opportunity had dire consequences.

10. In mid April 2016, the offender used his mobile phone to search for and access online material relating to violent religious extremism.

The Offence

11. On 17 April, the offender accessed an encrypted online messaging application using a pseudonym. He initiated conversations with two individuals, who were, unbeknownst to the offender, overseas online covert persona used by an overseas law enforcement agency.

12. The offender told these two individuals that he was a Muslim Australian who supported the Islamic State, that he planned to attack the “infidels” at a memorial service on Anzac Day and that he wanted assistance in making a bomb and obtaining a gun.

13. As a result of these conversations, members of the JCTT initiated a controlled operation on 23 April via the same messaging application using an Australian-based online covert person. The offender’s conversations with all three of these online personae between 17 and 24 April 2016 included statements by the offender wherein he expressed a desire to learn how to make a bomb, a desire to martyr himself, an intention to target “infidels”, and a request for a gun. The offender said that he had a time and a place in mind for an attack, that it would be 25 April because it was an important day for the “infidels” and that he wanted to terrorise them on that day.

14. Owing to the offender’s suspicions that the Australian operative may not be genuine, it was arranged that the offender would meet that person on 23 April in a park two blocks from the offender’s home. However, the offender did not attend the meeting and instead ceased contact with the Australian operative and one of the overseas operatives. The offender communicated further with the remaining overseas operative on 24 April, making a further request for a bomb making manual. The offender was told to be patient and careful, but replied that he did not have time.

15. The offender was arrested by the JCTT on the afternoon of 24 April.

16. A subsequent examination of the offender’s mobile phone disclosed a photo dated 13 December 2015 of a website with links to the social media accounts of Islamic State followers, an account on an online social media application bearing the insignia of Islamic State, evidence of online access from 3 March 2016 to an account which contained eleven issues of a magazine published by Islamic State promoting “jihad”, a video recording downloaded and accessed by the offender on 19 April 2016 depicting beheadings and executions in the name of religious extremism, other images and recordings downloaded and accessed by the offender in and around mid April 2016 promoting violent religious extremism such as the killing of unbelievers.

17. The JCTT also seized handwritten notes in which the offender declared his allegiance to Sharia law and to the Caliphate.

18. During the offender’s interview with police, in the presence of his father, on 24 April 2016, the offender stated that he was upset and angry with the Australian Government over its involvement in the war in Syria, that he had conducted online research about Islamic State in about September or October 2014 but not since, that he was aware of the significance of Anzac Day, that no other person had used his mobile phone since he purchased it in January 2016, that he had sent $50 to support the pregnant wife of a Sydney man who was charged with a terrorism related offence, and that the hand written note seized by the JCTT was composed by him. In relation to that note, the offender confirmed that he believed Sharia law should prevail in Australia to the exclusion of democracy.

19. The offender provided the four digit password to his phone and the usernames for a number of applications on the phone, although he refused to answer questions in relation to his use of the messaging application through which he had made requests for a bomb and a gun. The offender told police that he identified with a group within Islam which had warned him against associating with his former friends from school. The offender identified his user profile and confirmed that the image depicted in the profile meant that the honour of the Prophet would be defended. He said that there would be “consequences” if someone were to cross his religious boundaries.

20. The offender refused to comment on the nature of the discussions he had with the three operatives and claimed not to be aware of the park which he had nominated for the meeting on 23 April. Surprisingly, given the tenor of the offender’s statements about Sharia law, he claimed that he was willing to abide by Australian law and denied holding extremist violent beliefs.

21. The offender was then charged and has remained in custody since that time.

22. On 6 May 2016, the offender was served with a court order requiring him to provide to the JCTT a number of passwords for various applications on his mobile phone. Those six applications include the messaging service used by the offender to communicate with the overseas and Australian operatives. The offender initially declined to provide the passwords on the basis that he wished to obtain legal advice. That was not an unreasonable position to take given that he was intending at that time to defend the charge. After receipt of legal advice, the offender said that he provided the relevant passwords although it appears that he was unable to recall them sufficiently to enable police to access the relevant applications.

The Objective Gravity of the Offence

23. It is trite to observe that one indicia of the gravity with which the legislature regards the offence to which the offender has pleaded guilty is the maximum penalty of life imprisonment. That penalty is reserved for the most serious offences in the criminal calendar. It is in that context that it becomes necessary to place this offending within the range represented by that maximum penalty.

24. Section 16A(2)(a) of the Crimes Act 1914 (NSW) reflects this aspect of the sentencing exercise, in addition to the common law. In relation to the nature and circumstances of the offence, the assessment of objective gravity must take place having regard to the principles applicable to sentencing for terrorism offences, which were recently summarised by Johnson J in R v Alou (No. 4) [2018] NSWSC 221 at [165] to [171]:-

[165] The primary considerations on sentence for terrorist offences are the protection of the community, the punishment of the offender, the denunciation of the offending and both specific and general deterrence: R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691 at [92]; Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360 at [274]; R v Khazaal [2009] NSWSC 1015 at [47].

[166] Subjective circumstances and mitigating factors, including considerations of rehabilitation, are to be given less weight: R v Lodhi at [89]; Lodhi v R at [274]; R v Khazaal at [41]; DPP (Cth) v Besim [2017] VSCA 158 at [112]-[113].

[167] The religious and ideological motivation of an offender is relevant to the issue of community protection, as well as to the assessment of the objective gravity of the offence: R v Kahar [2016] 1 WLR 3156; [2016] EWCA Crim 568 at [19].

[168] Where it is not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance: R v Lodhi at [82]-[83], [88]; R v Elomar and Ors (2010) 264 ALR 759; [2010] NSWSC 10 at [93]; Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 at [591].

[169] Weight must be given to the need for general deterrence even if the force of ideological or religious motivations are such that deterrence may not be effective: R v Lodhi at [91]-[92]; Lodhi v R at [87]-[88]; R v Barot [2007] EWCA Crim 1119 at [45]; DPP (Cth) v Fattal [2013] VSCA 276 at [169]; DPP (Cth) v MHK [2017] VSCA 157 at [52]-[53].

[170] Whilst youth is relevant to determining the weight to be given to general deterrence and denunciation in the sentencing equation, its weight is diminished quite measurably in terrorist cases where the offender participates in, plans or carries out actions of extreme violence. The protection of society, and the upholding of its most fundamental values, necessitates that in terrorist cases, the sentencing considerations of general deterrence and denunciation must be given primacy above the ameliorating effect of youth: DPP (Cth) v MHK at [66]; R v Khalid and Ors [2017] NSWSC 1365 at [109]-[113], [270].

[171] In considering the nature and gravity of terrorist offences, courts in Australia have utilised a number of factors referred to by the UK Court of Appeal in R v Kahar at [19]: R v Elomar at [62]; R v Benbrika at [564]; R v Khalid and Ors at [25]. The factors referred to in R v Kahar are:

(a) the degree of planning, research, complexity and sophistication involved, together with the extent of the offender’s commitment to carry out the act(s) of terrorism;

(b) the period of time involved, including the duration of the involvement of the particular offender;

(c) the depth and extent of the radicalisation of the offender as demonstrated (inter alia) by the possession of extremist material and/or the communication of such views to others; and

(d) the extent to which the offender has been responsible, by whatever means, for indoctrinating or attempting to indoctrinate others, and the vulnerability or otherwise of the target(s) of the indoctrination, be it actual or intended.

25. Turning to the factors identified in R v Kahar [2016] 1 WLR 3156, I acknowledge the submissions on the offender’s behalf that his online enquiries may be characterised as amateurish, in that he sought assistance from others rather than conduct a search online himself for bomb making instructions, and that he acted alone. Beyond the stated intention of carrying out an operation on Anzac Day, it was submitted that the offender had not carried out any reconnaissance of a target. It was also submitted that the offender had no capacity to carry out an attack.

26. The fact that the offender acted alone does not serve to mitigate the offence. It is in the nature of terrorism offences that they are frequently committed by “lone wolves”. More importantly, the absence of a factor that may aggravate an offence does not operate to render it less objectively serious. Similar considerations apply to the balance of the submissions referred to above; the offender’s communications on 21 April with one operative included references to an area having been identified for the attack and a declaration that his training as an electrician qualified him to some extent in mechanical matters. It is difficult to assert definitively therefore that the offender had not identified a target and was incapable of carrying out an attack.

27. More concerning is the apparent commitment of the offender to carry out the plan. He had already come to the attention of the JCTT in relation to his access to extremist violent material, yet renewed his online research within six months of the police search of the family home, and renewed it with a specific purpose in mind, namely the commission of a terrorist act. The offender’s claim (to Dr Alnutt) that he did not think the JCTT intervention was serious, because he was not arrested at that point, sits uneasily with the trauma that the offender and his family experienced during the search and interrogation. I accept that the offender may have wavered in his commitment to carry out the plan when he began to suspect the bona fides of one operative, but those doubts appear to have been resolved when the offender again requested bomb making material on 24 April. The evidence demonstrates that as at the date of his arrest, the offender was persevering with his stated plan.

28. In the light of a submission on behalf of the offender which sought to place emphasis upon the very limited period of planning, it must be observed that the offence is not necessarily less serious than offences which have advanced beyond the initial planning stages. The legislative scheme is premised on the criminalisation of preparatory acts and criminal responsibility attaches well before the commission of overt acts: R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691. That said, the offender’s activity which is the subject of the charge spans only seven days.

29. The depth and the extent of the offender’s radicalisation is considerable when assessed by reference to the barbarous nature of the offence that the offender was actively contemplating, his communications with the operatives and the extremist nature of the material which the offender had been accessing over a period of one year. The religious and ideological motivation of the offender is apparent from his interview with police following his arrest, despite his professed adherence to Australian law.

30. Since the offender’s arrest and incarceration, he has had access to psychological and psychiatric services, and religious mentoring, that have contributed significantly to a correction in the offender’s perceptions and judgment. I am satisfied that he has renounced his former extremist views.

31. I accept the Crown’s submission that the offence is objectively serious and that no other penalty than a substantial term of full-time imprisonment is appropriate in order to reflect the factors to which I have already referred. I would assess this offence above the low end of the range of objective gravity, contrary to the submission advanced by the offender’s legal representatives. On any view, the offender clearly contemplated an attack which was ideologically and religiously driven, and chosen for the impact such an attack would have had on a public holiday of great national significance.

32. The degree to which the offender’s youth ameliorates the weight to be attributed to general deterrence and denunciation is a live issue. The offender’s case is that both youth and the presence of a mental illness, that is, a depressive illness exacerbated by chronic bullying, warrant considerable amelioration: KT v R [2008] NSWCCA 51; 182 A Crim R 571; DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1.

33. The offender was aged XXXXX at the time of the offence. There is a wealth of material in the reports of Mr Borenstein, Mr Dornan, Dr Allnutt and Dr Le that the offender was suffering from a major depressive disorder at about the time of the offence. Both Dr Allnutt and Dr Le explain the link between the depressive disorder, triggered by the offender’s experience of bullying, the offender’s withdrawal from his peers and family, diminished self-esteem, a loss of personal identity and his susceptibility to extremist views propagated on social media which validated his sense of victimisation and alienation. The depressive disorder and its sequelae impaired his judgment beyond that which has been recognised as a feature of adolescence.

25. In these circumstances, there is some force in the submission that the principles of general deterrence and denunciation play a somewhat lesser role in this sentencing exercise. However, that consideration can only go so far. There is a degree of overlap between the principles that attach to the sentencing of juveniles and the mitigation of a sentence on the grounds of mental illness – both recognise that an offender’s moral culpability may be reduced for substantially the same reasons: De La Rosa at [177]; R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 at [25] – [27].

26. The offender’s progress in custody has been promising, subject to some behavioural reports and an episode of prohibited contact with another inmate on terrorism charges. The juvenile justice reports demonstrate that the offender has gradually but surely developed insight into his offending behaviour. Most promising is his renewed faith in the love and support of his family and his engagement with psychologists, teachers and staff. I am of the view that his prospects of rehabilitation are promising. I accept that he is contrite and that his expressions of remorse contained in his letter to the Court are genuine.

27. Whilst the offender did not plead guilty at the earliest opportunity, he did so after his legal representatives were in a position to give him full and appropriate advice. There was considerable utilitarian value in the timing of the plea. I assess the value of the plea at 20%.

28. The offender has already experienced an assault whilst in custody. Notwithstanding a degree of trauma and stress occasioned by that event and the offender’s custodial conditions, which have subjected him to strict classification procedures, he has adjusted satisfactorily and is reported to be polite, compliant and well-behaved. Given the offender’s exposure to bullying and assaults on the basis of the nature of his offence, I am of the view that there are special circumstances justifying his detention as a juvenile offender up to the age of 21.

29. Taking all of these matters into account, I impose the following sentence:-

30. AH, you are convicted of the offence of doing an act in preparation for, or planning a terrorist act. I sentence you to 12 years imprisonment, to date from 24 April 2016, expiring 23 April 2028. I fix a non parole period of 9 years expiring 23 April 2025. I direct that you be detained as a juvenile until [your 21st birthday].

31. Pursuant to s 105A.23 of the Criminal Code, you are warned that an application may be made under Division 105A of the Criminal Code for a continuing detention order requiring that you be detained in a prison after the end of your sentence for the offence.

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Decision last updated: 26 June 2018