R v Al-Kutobi; R v Kiad

[2016] NSWSC 1760

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	R v Al-Kutobi; R v Kiad [2016] NSWSC 1760
Hearing dates:	12-16 September 2016, 7 October 2016
Date of orders:	09 December 2016
Decision date:	09 December 2016
Before:	Garling J
Decision:	(1) Mr Al-Kutobi is sentenced, for the offence contrary to ss 101.6(1) and 11.5(1) of the Criminal Code of conspiring to commit an act or acts in preparation for or planning a terrorist act, to a term of imprisonment of 20 years to commence from 10 February 2015, and to conclude on 9 February 2035. I fix a non-parole period of 15 years, commencing on 10 February 2015 and expiring on 9 February 2030. (2) Mr Kiad is sentenced, for the offence contrary to ss 101.6(1) and 11.5(1) of the Criminal Code of conspiring to commit an act or acts in preparation for or planning a terrorist act, to a term of imprisonment of 20 years to commence from 10 February 2015, and to conclude on 9 February 2035. I fix a non-parole period of 15 years, commencing on 10 February 2015 and expiring on 9 February 2030.
Catchwords:	CRIMINAL LAW – sentencing – conspiring to do an act in preparation for or planning a terrorist act – Criminal Code 1995 (Cth) ss 11.5 and 101.6 – where plea of guilty entered but facts of offending in dispute – whether offenders were preparing or planning to use a bladed weapon to kill or cause serious physical harm to an individual – consideration of objective seriousness – consideration of subjective circumstances of the offenders – role of deterrence and community protection – whether differential sentences warranted
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) The Criminal Code 1995 (Cth)
Cases Cited:	Filippou v The Queen [2015] HCA 29; (2015) 89 ALJR 776 Tyler v The Queen [2007] NSWCCA 247; (2007) 173 A Crim 458
Texts Cited:	Not Applicable
Category:	Sentence
Parties:	The Crown Omar Al-Kutobi (Offender) Mohammad Kiad (Offender)
Representation:	Counsel: P Neil SC / T D Anderson (Crown) M Pickin (Mr Kiad) G Scragg (Mr A-Kutobi)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Lawyers Corp Pty Ltd (Offenders)
File Number(s):	2015/423252015/42332
Publication restriction:	Not Applicable

REMARKS ON SENTENCE

1. On 10 February 2015 at about 4:20pm, Omar Al-Kutobi and Mohammad Kiad were arrested at a flat which they shared at the rear of a house in Riverview Road, Fairfield.

2. They were later charged with an offence of conspiring with each other to do acts in preparation for, or planning, a terrorist act, in contravention of ss 101.6(1) and 11.5(1) of The Criminal Code (Cth) 1995 (“the Code”). The maximum penalty for this offence is life imprisonment.

3. On 17 February 2016, the offenders waived their right to a committal hearing and were remanded in custody to appear in the District Court on 26 February 2016. Ultimately, it was determined that the offenders would be tried in this Court.

4. On 8 April 2016, the offenders were arraigned before Johnson J and pleaded not guilty. The trial was listed to commence on 1 August 2016 for an estimated period of 6 to 8 weeks.

5. On 27 July 2016, five days before the trial was due to commence, each of the offenders pleaded guilty to the offence charged on the Indictment.

6. Not all of the facts were agreed between the Crown and the offenders. Accordingly, over a period of four days commencing 12 September 2016, the Court heard evidence which went to the resolution of the facts that were the subject of dispute between the parties. On 7 October 2016, submissions were taken on those disputed facts and on all other matters relevant to sentence.

7. It is now time for Mr Al-Kutobi and Mr Kiad to be sentenced for their crime.

Relevant Statutory Provisions

8. Before turning to the facts of these offences, it is necessary to summarise the key provisions of the Code, as they provide the context for understanding the offences to which the offenders have pleaded guilty, and for resolving the disputed facts on sentence.

9. Section 101.6 of the Code sets out the offence to which the offenders have pleaded guilty. It provides that a person commits an offence if the person does any act in preparation for, or planning, a terrorist act, even if the terrorist act does not occur.

10. Section 100.1 of the Code defines the term “terrorist act”. The definition is complex but, in essence, a terrorist act is an act which causes serious harm or damage to a person, property or the public and which, importantly, is accompanied by a particular kind of intention. That particular intention is to advance a political, religious or ideological cause, either by coercing or intimidating a government or by intimidating the public or a section of the public. It is the presence of this intention that distinguishes terrorism offences from other serious criminal offences.

11. Section 100.1 makes clear that an act which is properly to be regarded as advocacy, protest, dissent or industrial action is not a “terrorist act”. The section also makes clear that action which is not intended to cause serious harm or damage to persons, property or the public is not a “terrorist act”.

12. In essence, then, a terrorist act is an act which is intended to, and does, cause serious harm or damage to a person, property or the public, and which is designed to advance a political, religious or ideological cause by intimidating or coercing the government, or intimidating the public or a section of the public.

13. It is also to be kept in mind that the offenders in this case pleaded guilty to conspiring to commit the offence in s 101.6. That is to say, the offenders pleaded guilty to conspiring to do acts in preparation for, or planning, a terrorist act. Section 11.5 of the Code provides that a person is guilty of a conspiracy if they enter into an agreement, they intend to commit an offence pursuant to the agreement, and they carry out an overt act pursuant to that agreement.

14. Section 11.5 of the Code provides that the offenders are to be punished for the conspiracy to commit the offence in s 101.6 as if the offence had been committed. Accordingly, the applicable maximum penalty for the conspiracy to which the offenders pleaded guilty is life imprisonment.

Agreed Facts

15. At the hearing, the Crown tendered a document headed “Statement of Facts for Sentence”. Many of the facts disclosed in that document were not in dispute, that is, they were agreed facts, which I accept. It is convenient to summarise some of those agreed facts here.

16. As indicated by their respective pleas of guilty, the offenders admitted that between about 1 January 2015 and 10 February 2015, they conspired with each other to do acts in preparation for, or planning, a terrorist act.

17. It was the Crown case that the terrorist act or acts the subject of the offenders’ conspiracy involved:

1. detonating an improvised explosive device (IED) to damage or destroy a building; and/or

2. using a bladed weapon, either a machete or a hunting knife or both, to cause a person’s death, endanger a person’s life, or create a serious risk to the health or safety of the public or a section of the public.

18. It was the Crown case that these acts were to be done with the intention of:

1. Advancing a political, religious or ideological cause, namely an extreme interpretation of the Islamic faith;

2. Coercing, or influencing by intimidation, the Government of the Commonwealth of Australia; and/or

3. Intimidating the public or a section of the public.

19. By their pleas of guilty, both offenders accepted that their actions were undertaken with the requisite intention.

20. The offenders admitted that the first of the actions identified by the Crown, namely detonating an IED to damage or destroy a building, was a subject of their conspiracy. However, the offenders denied that they conspired to prepare or plan to use a bladed weapon to cause physical harm or death to a person. This is a significant area of dispute to which I will turn later in these remarks.

21. Both of the offenders admitted that, between about 1 January 2015 and 10 February 2015, they held certain shared beliefs concerning the Islamic faith. Those shared beliefs included the following:

1. Islam throughout the world is under attack and there is a religious obligation to come to the defence of Islam and other Muslims;

2. “jihad” is a legitimate means by which this religious obligation can be fulfilled; and

3. Shi’ite Muslims do not follow the “right” or “proper” Islam.

22. Associate Professor Shanahan, who gave unchallenged expert evidence in these proceedings, explained that a central element of jihad is:

“… the need to fight oppression of Muslims wherever they are in the world. [Its] simple message [is] that the best way to end the oppression of Muslims is to fight their oppressors. In the jihadi worldview the oppressors are the West or governments or groups sympathetic to, or supported by the West.”

23. Against the background of these beliefs, the offenders agree that they entered into an agreement with each other to establish the capacity to carry out a terrorist act or acts. This necessarily involved acts preparing for, or the planning of such a terrorist act, including establishing the capacity to carry out the terrorist act.

24. The offenders agreed that one or both of them carried out a series of overt acts pursuant to their unlawful conspiracy. Those acts were:

1. taking an oath of allegiance to the leader of the Islamic State;

2. conducting reconnaissance and target selection of a Shia prayer hall for the purpose of damaging or destroying it;

3. liaising with, and receiving instructions and guidance from, an individual who was a recruiter for the Islamic State, whom they believed was located either in Syria or adjacent to it;

4. accessing written instructions on how to create an IED;

5. making a list of ingredients which could be used to create an IED;

6. obtaining and keeping materials which could be used in the construction of an IED, which accorded with the written directions which were accessed;

7. possessing a jar of homemade explosives which can conveniently be described as “napalm”;

8. locating and obtaining a machete and attempting to sharpen the blade of the machete;

9. purchasing a cordless drill, which was used to drill holes in the blade of the machete;

10. locating and purchasing a hunting knife;

11. creating a balaclava from a tubular scarf by cutting eye holes in it;

12. obtaining instructions to create an Islamic State flag, acquiring various materials to create it, and creating it;

13. creating two notes which included the words “we are here to cut your heads”; and

14. making a video in which Mr Al-Kutobi appeared in front of the Islamic State flag and said, among other things: “I swear to God Almighty, yellow people, there is no reproach between us, you will only get from us the stabbing of your kidneys.”

25. It was agreed that at the time of the offenders’ arrest there was an Islamic YouTube channel playing on the television in their flat which depicted a captured Jordanian pilot being burned alive. It was also agreed that police recovered a number of items at the premises. They included:

1. an Islamic State flag;

2. a machete and a hunting knife;

3. a cordless drill and drill bits;

4. paint, fabric and a stencil used to make the Islamic State flag; and

5. a glass jar containing homemade napalm.

26. As well, three mobile telephones containing video recordings, photographs and data, and a number of laptop computers, were seized together with multiple SIM cards, and USB sticks.

Islamic State – Background

27. In order to understand the evidence relevant to sentence, and to make findings about the offending, it is necessary to understand the history and formation of Islamic State. Associate Professor Roger Shanahan, an expert in Arabic and Islamic studies, provided expert evidence, which was not challenged, on this topic. I am satisfied that it is appropriate to accept what he said.

28. According to Associate Professor Shanahan, the Islamic State, formerly known as “Islamic State of Iraq” and “Islamic State of Iraq and ash-Sham”, is a Salafist Sunni Muslim organisation which views Shi’ite Moslems as religious heretics who must be defeated militarily and politically. Since 2010, when Islamic State came under the leadership of Abu Bakr Al-Baghdadi, it has been operating in Iraq and Syria. In Iraq, Islamic State has aligned itself with the disaffected Sunni tribes and remnants of the former regime of the Ba-thist Party. In June 2014, Al-Baghdadi proclaimed himself the successor to the Prophet Muhammad and as a consequence, the political and military leader of the worldwide Muslim community.

29. Islamic State has a flag which consists of a black background with the words “There is no God but God” at the top, which represent the Muslim affirmation of faith. Below that, in a white circle, are the words “Muhammad messenger of God”. These words in the circle are supposed to represent the seal of the ring used by the Prophet Muhammad at the bottom of his correspondence. The inclusion of that image is intended to denote authenticity.

30. To become a member of Islamic State, one must pledge their allegiance. The pledge of allegiance is, in effect, a verbal contract between the pledger and the leader of Islamic State whereby the pledger gives unrestricted loyalty to the organisation. The pledger is religiously bound to follow any and all directions given by the leader of Islamic State. According to Associate Professor Shanahan, the significance of the promise or pledge is that those who do so:

“…feel that they are allowed, and even duty bound, to attack targets in blasphemous countries, a description which includes Australia. They believe that in so doing they would be acting in accordance with God’s will”.

31. In September 2014, the principal Islamic State spokesman, Abu Muhammad al-Adnani, exhorted followers of Islamic State to target westerners, Christians, and apostate Muslims in an English language Islamic State publication, saying:

“At this point of the crusade against the Islamic State, it is very important that attacks take place in every country that has entered into the alliance against the Islamic State, especially the US, UK, France, Australia and Germany. Rather the citizens of crusader nations should be targeted wherever they can be found. …

Every Muslim should get out of his house, find a crusader, and kill him. It is important that the killing becomes attributed to patrons of the Islamic State who have obeyed its leadership.”

32. Associate Professor Shanahan also dealt with the matter of the recording of videos. He said that in a general sense the recording of a religious martyr’s sacrifices has historically served as a way of ensuring that such actions are at least praised, if not emulated. Martyrdom is a key element of the Islamic State doctrine, and its leader, Al-Baghdadi, praises and demands such actions from his followers.

33. Islamic State uses videos as a key element in order to attribute particular attacks to their organisation. They are an essential part of its “marketing” to recruit new members and raise funds. Homemade videos against a background of the Islamic State flag appeared in 2014 and 2015 when Islamic State carried out attacks in the west. The offenders themselves downloaded and watched some of these videos.

The Offenders’ Radicalisation and their Conspiracy

34. From the seized material, and as a consequence of other information received by the authorities during the investigation, a comprehensive chronology of events charting the offenders’ radicalisation and the formation of their conspiracy to commit a terrorist act or acts can be set out.

The Offenders’ Radicalisation

35. Although neither of the offenders was raised to follow any extreme views relating to Islam, it is clear that during and certainly by the end of 2014, both of the offenders had become drawn to, and had embraced, the ideology of the Islamic State and extremist Islamic views.

36. In Mr Al-Kutobi’s case, this process of radicalisation commenced in early 2014. On 18 February 2014, Mr Al-Kutobi, on the mobile application “WhatsApp”, adopted a username which translated into English as “Khatab Al Baghdadi”, a reference to the leader of the Islamic State, Abu Bakr Al‑Baghdadi. Mr Al-Kutobi also changed the name on his Facebook profile to “Khatab Albaghdadi”. A former girlfriend of Mr Al-Kutobi, who was still connected with him on Facebook, observed a number of Islamic State videos and pictures on his profile page.

37. In November 2014, similar observations were made of Mr Kiad’s Twitter and Facebook profiles. Mr Kiad’s former wife observed tweets and imagery that were related to Islamic State, and observed that Mr Kiad’s twitter profile picture was a photograph of a male holding an Islamic State flag with his face covered.

38. Evidence of the offenders’ radicalisation was given by a variety of witnesses, including taxi drivers and work colleagues. Mr Khamo, a Premier Cab driver, recalled picking up a person from a granny flat in Fairfield around Christmas time in 2014. I am satisfied that this person was Mr Al-Kutobi. Mr Khamo gave evidence that, during the trip, he engaged in a conversation with Mr Al‑Kutobi in Arabic, in which Mr Al-Kutobi expressed views that were sympathetic to, and supportive of, the approach of Islamic State to the struggle in the Middle East. Mr Khamo gave evidence that the offender defended the killing of Iraqis who did not follow “the right Islam”.

39. Although Mr Al-Kutobi denied this conversation when giving evidence, I do not accept that denial. I found Mr Khamo to be a truthful and reliable witness. I am fortified in this conclusion by the fact that Mr Khamo made a reasonably contemporaneous report to the police about this conversation with Mr Al‑Kutobi.

40. In December 2014, a work colleague of the offenders visited the offenders at their residence in Fairfield. He recalled that he and the offenders discussed the situation in Iraq before the war, and that Mr Al-Kutobi said: “If I could join ISIS I would”. Another work colleague recalled that, when the Lindt café siege was taking place on 14 and 15 December 2014, he had a conversation with Mr Al-Kutobi at work, in which Mr Al-Kutobi expressed his support for Islamic State and defended its activities.

41. In January 2015, a Premier Cab driver picked up two persons from the Fairfield property whom, I am satisfied, were the offenders. During that trip, the offenders identified as coming from the land of “the Khilafah”, which was understood by the taxi driver to be a reference to the Islamic State. Another Premier Cab driver picked up the offenders in January 2015. He recalled that, during the trip, the offenders spoke supportively of Islamic State and were openly critical of Shi’ite Muslims.

42. Witness B, who had known Mr Al-Kutobi since their school days, also gave evidence of his conversations with Mr Al-Kutobi in 2014. Whilst Mr Al-Kutobi denied the content of the conversations recounted by Witness B, I have no doubt that in about November 2014, Mr Al-Kutobi did tell Witness B, in substance and effect, that he had embraced the views of an Islamic sect, and that he regarded himself as aligned with, or else a part of, the Islamic State. Mr Al-Kutobi’s physical appearance at that time was consistent with those who supported Islamic State.

43. The offenders’ radicalisation and support for Islamic State is also clearly evident from the material found on the electronic devices that were seized at the offenders’ residence. On Mr Al-Kutobi’s mobile phone, there were images of Islamic State convoys, Islamic State beheadings, and of the Charlie Hebdo terror attack. On Mr Kiad’s mobile phone, there were images of a similar kind, and many notes containing material suggestive of support for the Islamic State. His Skype profile image was of the Islamic State flag.

44. Other physical items located at the offenders’ premises were intrinsically of such a nature that they provided evidence of the offenders’ radical beliefs, extremist ideology and apparent alignment with the Islamic State. These included the makeshift Islamic State flag and a notebook owned by Mr Al‑Kutobi in which he had written “Islamic State of Iraq and Sham”, and had drawn images of the Islamic State flag.

35. The offenders agreed that by the end of 2014 and the beginning of 2015, they shared radical beliefs about Islam and were supporters of Islamic State. In submissions, their counsel both accepted that at this time they were supporters of the Islamic State.

The Offenders’ Conspiracy to Prepare for or Plan a Terrorist Act

46. In early 2015, an Australian Joint Counter Terrorism Team began to monitor the offenders’ activities under the name of Operation Castrum. Much of the material gathered during the investigation took the form of electronic messages on WhatsApp and Skype, as well as electronic notes recorded on the offenders’ mobile phones.

47. To introduce and make sense of this electronic material, it is necessary to record Mr Al-Kutobi’s unchallenged evidence that in October 2014, he undertook internet searches to identify supporters of Islamic State. He said that he identified an individual on Facebook, whom the parties referred to in these proceedings as “Rahman”, and commenced communicating with him. Rahman was a supporter of, and an advocate for, the Islamic State. He counselled and encouraged the offenders to embrace the Islamic State and its beliefs. He was the only direct contact for the offenders with Islamic State. He became a kind of Islamic State mentor for the offenders. During the early part of January 2015, the offenders were engaged with him for the purpose of obtaining support to travel to Syria or Iraq to join Islamic State. Their later interactions with him were far more sinister.

48. Rahman was apparently located in Syria and was involved, as the authorities established, in advocating for the Islamic State and in recruiting or facilitating the entry of foreign fighters into Syria for the Islamic State. However, Rahman wanted to leave Islamic State and go to a safe country where he would not come to any harm. Accordingly, he was in contact with a third person described in these proceedings as “Witness A”, who was, with Rahman’s knowledge, passing on any information he received from Rahman to security organisations.

49. Accordingly, while the record of electronic communications obtained from the offenders in this case is not complete, it has been possible to fill in some parts of the picture by having regard to the communications between Rahman and Witness A. Necessarily one has to be circumspect in accepting these communications at face value, but where they point only to one rational conclusion about the offenders’ activities, I have accepted them.

50. On 1 January 2015 at 2:37am, Mr Al-Kutobi sent the following message on WhatsApp to Rahman:

“We ask Almighty God, Lord of the Throne, to enable us to see the Masters of the Caliphate, and to be truthful soldiers. We ask God … to protect the Commander of the Believers, our Leader, our Caliphate and our poor slave Sheikh Abu Bakr Al-Baghdadi. We ask God to accept our bodies in redemption to God’s pleasure …”

51. I am satisfied that this was a reference to the desire of the offenders to travel to Syria.

52. On Friday, 2 January 2015, in a series of messages between Witness A and Rahman, Rahman indicated that there were two people called “Mohammad” and “Omar” – being the offenders – who would be travelling from Australia to Syria on Monday 5 January 2015 “to fight with the organisation”. Rahman provided Witness A with the offenders’ mobile phone numbers, and discussed with Witness A a potential arrangement whereby Rahman would meet the offenders in Turkey before taking them to Syria. Arrangements such as the provision of air tickets by a man located in Raqqah in Syria called Abu Al-Fide Al‑Qatari, how long the offenders would remain in Turkey before going to Syria, what they might bring with them, and other similar matters, were specifically canvassed between Witness A and Rahman.

53. On 4 January 2015 at 3:10am, Mr Al-Kutobi sent the following message to Rahman:

“I swear my brother Mohammad is next to me, he sends his regards and asks about the dignities of the fighters that might have seen or heard about …”

54. About 20 minutes later at 3.30am, Mr Al-Kutobi sent a further message to Rahman:

“Thanks God willing my brother, Mohammed sends his regards and regards to all the brothers there, tell them that the youngest people send their regards, as for our beloved Sheikh and Commander of the Believers, we have no one else and he should not expect from us anything less than quenching the land with the blood of the tyrants, and we pledge our allegiance to him.”

55. This message conveys acceptance of, and dedication to, the cause of the Islamic State.

56. On 5 January 2015, despite what was indicated in the message from Rahman to Witness A on 2 January 2015, the offenders did not travel from Australia to Syria.

57. No reason is readily apparent from the evidence for the change of heart on the part of the offenders. However, it seems clear from the fact that there are no communications proved in evidence for the next 21 days from any of the available sources, that the offenders, Rahman, and Witness A must have been continuing their communication via a medium which has not been identified. That there must have been further communication is readily apparent from the sudden cessation of a high number of messages; the complete absence of proved communication in that period; and the familiar tone when communications resumed between the offenders and Rahman on 28 January 2015.

58. On Thursday 15 January 2015 at 1:24pm, the evidence reveals a resumption of electronic communication between the offenders when, Mr Al-Kutobi sent a WhatsApp message to Mr Kiad containing a photograph of an Islamic State flag bearing the following translated text: “There is no God b[ut] Allah, Mohammad is God’s messenger”. However, nothing of particular substance was transmitted between them.

59. On 24 January 2015, Mr Al-Kutobi recorded a note in his phone, which was an extract from the writings of Sheikh Abdullah Azzam, who Associate Professor Shanahan describes in his statement as a mentor to Osama bin Laden. The note translated into the following English:

“The final decision: continuing with Jihad … for as long as it takes to the last breath and the last heart beat until we see the Islamic State established. Go with the blessings of Allah and say: if preparation is terrorism, so we are terrorists. If defending our honour is considered to be extreme then we are extremists. If Jihad … against enemies is considered fundamentalism then we are fundamentalists.”

60. On 25 January 2015 at 2.02am, Mr Al-Kutobi undertook a Google search of the phrase “preparing for Jihad”. This search no doubt reflected Mr Al‑Kutobi’s intention at the time. He wanted to ensure that he and Mr Kiad knew how to prepare for jihad which, by that time, I am satisfied, the offenders had resolved to wage in Australia.

61. A few days later, on 28 January 2015 at 8.57pm, Rahman messaged Mr Al‑Kutobi: “I will send you the word that the brothers agreed upon”. Rahman then sent Mr Al-Kutobi the following message:

“We swear to defend this religion as long as we live, and to exert the precious and non-precious to fight the ungodly infidel crusaders and whoever assists them from the apostates.”

62. The following day, on 29 January 2015, Mr Kiad purchased black fabric, materials for cutting out a stencil, and paint from various stores in Cabramatta. He also purchased the cordless drill which was used to drill holes into the machete which was found at their premises.

63. On the morning of 30 January 2015, a series of messages passed between Witness A and Rahman. Rahman asked Witness A if Witness A could “organise a meeting for me in the embassy”, reflecting Rahman’s desire to seek Witness A’s assistance to leave Syria and move to a safer location. Rahman informed Witness A that a “group” from Australia had travelled to Syria a week ago and that “the rest will leave soon”. It was not suggested that the offenders were members of either of these groups. Rahman then informed Witness A that he had “bigger news”. He then sent Witness A a picture of the Islamic State flag which, I am satisfied, had been prepared by the offenders using the materials purchased by Mr Kiad the day before. Rahman then informed Witness A that “there are preparations for an operation …”. He referred to a location which I am satisfied was somewhere in Australia.

64. After that message, it is clear that the offenders undertook preparation for an “operation” in Sydney. The details of these preparations can be seen from the subsequent electronic communications and other evidence.

65. At 3:51pm on 30 January 2015, Mr Kiad made a note on his iPhone listing various items he needed to acquire, including nail polish remover, an electricity measuring device, matches, fire crackers and a syringe.

66. On the evening of 31 January 2015, Mr Al-Kutobi contacted Rahman and asked for permission to purchase “Afghani clothes to record the allegiance”.

67. The next day, on 1 February 2015, Mr Kiad told Rahman that he would “make another banner”. The offenders then undertook research on how to pledge allegiance to the Islamic State. That evening, Mr Kiad informed Rahman that “thanks to God, Omar translated it and the allegiance in Arabic God willing … God willing he will memorise it and record it God willing”. Mr Kiad then indicated to Rahman that he would buy a camera stand to film Mr Al-Kutobi’s pledge of allegiance to Islamic State.

68. Also on 1 February 2015, Mr Al-Kutobi entered the following note in his phone, which when translated into English read:

“We promise that we will defend this religion for as long as we live and to sacrifice the previous and the cheap to fight the immoral crusaders, infidels and all who support them from the apostates. We are now in the heart of the homeland of the infidels, we can hit at any time we want and we will not let them live in peace before we can live in peace in the land of Muslims.”

69. At about midnight on 4 February 2015, Mr Kiad captured an image on his phone of a text conversation which he had with Rahman, who was using the alias “Immigrant Boy”, which translated into the following instructions from Rahman:

“So brother I will tell you what we need to do now … 1. We have the recording. 2. Selecting the targets. 3. Work … and before all this … the intention brother it has to be pure.”

70. On the evening of 6 February 2015, Mr Al-Kutobi undertook further Google searches with respect to pledging allegiance to the Islamic State.

71. Just before midnight on 6 February 2015, a series of messages passed between Rahman and Mr Kiad, in which they discussed a potential target. It is apparent that there had been prior communication between Rahman and the offenders with respect to a potential target. However, these communications are not recorded in the material tendered. Rahman began by asking Mr Kiad: “Brother who owns the places that you have been observing”. Mr Kiad responded “‘Husayniya’ brother”, referring to a sacred place or prayer hall for Shi’ite Muslims. Rahman expressed disbelief that there would be any Husayniyas in Australia and asked Mr Kiad for pictures of the Husayniya in question. Rahman also asked if the building was made out of timber. It is apparent that little, if any, reconnaissance had taken place, because Mr Kiad responded that he was not sure if the building was made out of timber or brick. Rahman then asked Mr Kiad about the extent of planning for the “operation”.

72. Just after midnight on 7 February 2015, Rahman sent Mr Kiad a message asking: “Brother do you know the meaning of ‘observing a target’?” Following this message, some photographs were taken on Mr Kiad’s phone of materials which, I am satisfied, the offenders were using to construct an IED. At 11:21am that morning, Mr Al-Kutobi sent Mr Kiad an SMS message: “Rawson road south granville”. Various satellite images were then downloaded onto Mr Kiad’s phone, which appeared to identify the location of a Shi’ite prayer hall.

73. On the afternoon of 7 February 2015, Mr Kiad told Rahman that the outside of the building was timber. There then appeared to be an issue as to Mr Al‑Kutobi’s commitment to the operation. Mr Kiad then told Rahman at 6.18pm on 7 February 2015:

“Brother Omar does not want with me he said he will sort himself out I swear I don’t know what to say to you.”

74. This was followed a few minutes later by a further WhatsApp message from Mr Kiad to Rahman:

“Brother please be patient and I will work and record for you. Thank God for everything anyway …”

75. Then, at 7.47pm, Mr Kiad told Rahman that the target “has been changed to an infidel temple” and that this operation would be “easy to execute”. Photographs were taken taken on Mr Kiad’s phone of a Shi’ite prayer hall in Guildford.

76. On Sunday 8 February 2015, commencing at about 5pm, Mr Al-Kutobi undertook a series of Google searches with respect to knives, including “army knife australia”, “Australian Military Knives”, “tactical knives australia”, and “australian military knife sale”. He also accessed a website for knives and whilst doing so opened a page dealing with “Cold Steel Bolo Machetes”. He concluded his research at that point with a Google search for “machete shop sydney”. He then separately accessed websites for “Survival Knives” and “Machetes”.

77. By Monday 9 February 2015, it was clear that the offenders had visited the Shi’ite prayer hall but had not carried out any attack on the hall. At this point it is convenient to refer to some of Mr Al-Kutobi’s evidence. Mr Al-Kutobi testified that sometime after 8pm on 8 February 2015, he and Mr Kiad went to the Shi’ite prayer hall with the intention of causing damage to the building by throwing a “jar of petrol” at it. He testified that when they got there, a man walked out from the building. The offenders were surprised by this as it was dark, the lights were out, and they did not expect someone to be in the building. They decided not to proceed with the operation and went home. Mr Al-Kutobi testified that he did not want to tell Rahman that he and Mr Kiad had “buckled” and so he instead told Rahman that they had aborted the operation after being “chased by the cops”. I accept this account given by Mr Al-Kutobi.

78. At 8.32am on 9 February 2015, Rahman told Witness A: “You know they tried to bomb a location yesterday … and they were chased by police”. Witness A seemed somewhat doubtful about that story because he responded by saying: “According to my experience, it all depends on the strength and truthfulness of the information”. Rahman assured Witness A that the information was accurate and went on to tell Witness A that the offenders had gone to a Shi’ite temple at night with explosives, but had been chased away by police. Rahman then told Witness A that a further operation was to take place on a “police station” in four days’ time, and that the offenders would send him pictures of the new target the following day.

79. Soon after this conversation between Rahman and Witness A, at 9:36am, Mr Kiad accessed a video on YouTube entitled “A Group of the most powerful songs Jihadists spirited ever”.

80. On the morning of Tuesday 10 February 2015, Rahman asked Witness A if there was any news and added: “I’m talking to the boys now and they are telling me about the new operation”. I am satisfied that this was a reference to the offenders. Shortly thereafter, Mr Al-Kutobi accessed Google Translate to translate some Arabic text into English. The translation of the Arabic text read:

“We are the soldiers of the Islamic State, we have come to cut off your heads”.

Mr Al-Kutobi then saved a screenshot of the English translation page to his phone.

81. A discussion then took place between Mr Kiad and Rahman about those words and various possible amendments. The final message in that discussion was one where Rahman told Mr Kiad that the message should be:

“We are the soldiers of the Islamic State we are the lions of jund al khaliafa. We are here to cut your heads”.

82. At 9.03am on 10 February 2015, Mr Kiad messaged Rahman telling him “Brother I will show you a video of the plan”. Rahman responded by providing a series of instructions to Mr Kiad:

“1 - Wear gloves on your hands

2 - The first hit is the lethal one

3 - Keep calm during execution

4 - The operation should not take more than a minute.”

83. Rahman then asked Mr Kiad to “Send the video”. Mr Kiad responded: “I sent it you will receive it now God willing”. A few hours later, at 11:25am, Mr Al‑Kutobi conducted a further Google search for “machete shop Sydney”.

84. At 12:19pm on 10 February 2015, Rahman sent an image via WhatsApp to Witness A of a handwritten sign with the following message prepared by the offenders:

“We are the soldiers of the Islamic State. We are the lions of jund al khaliafa. We are here to cut your heads”.

85. Rahman then informed Witness A that “The lions will depart to carry it out in a few hours”. I am satisfied that the word “lions” is a reference to the offenders. When Witness A asked Rahman why the operation was to take place on 10 February 2015, Rahman informed Witness A that there had been a change of plan. Witness A then sent the following message to Rahman:

“If they carry out an operation and they die or get arrested how will we negotiate? Won’t they all be revealed.”

86. Rahman then sent three messages in quick succession to Witness A. Although the order in which the messages were sent appears confusing, I am satisfied that the messages were sent in this way:

“And this is the letter that was sent to them from the Organisation”;

“I am talking about a terrorist attack”;

“Before the execution”.

87. Witness A asked what the letter was. Rahman responded that it was the one which he told Witness A about “ … a while ago”. Rahman went on to assure Witness A that he had all of the relevant information.

88. The offenders left their home sometime after 12.30pm. They attended to a number of ordinary, everyday activities including attending a mosque to pray. They refuelled the motor vehicle which they were driving. I reject the submission that these activities are only consistent with the offenders having terminated their conspiracy at that stage. In my view, they are just as likely to be consistent with an attempt by the offenders to portray their life as being entirely normal so as not to attract any attention to themselves, in light of their plans for later in the day.

89. At about 3.13pm on Tuesday 10 February 2015, the offenders attended Peters Camping and Disposal Store at Smithfield and purchased a medium-sized hunting style knife. Whilst at the store, one of the offenders removed a machete from an open cabinet. It was about 18” long with a 6” handle. The offenders examined the machete and had a discussion in Arabic, after which they replaced the machete in the cabinet. At 3:18pm, Mr Al-Kutobi sent Mr Kiad an image on WhatsApp of himself holding the hunting knife while seated in the driver’s seat of his car. The offenders returned home at 3.33pm.

90. At 3.42pm, Mr Kiad sent the following message to Rahman:

“Brother I ask that paradise by Haritha hit it. May God be pleased with him”.

91. Rahman responded:

“And you get entitlements as the ones of a soldier who is inside and under the authority of the Organisation.”

92. Mr Kiad then said “I swear if there were any entitlements then it’s for the money house”. He added “for Muslims brother”. He urged Rahman to deliver the message. He also said “Hopefully God will forgive and bless us”. Rahman responded “You will receive your entitlements from the money house as soon as you arrive to the land of the Organisation in the State of Barakah.”

93. At 3:45pm, Mr Al-Kutobi took a photograph on Mr Kiad’s phone of Mr Kiad holding a machete in front of the Islamic State flag prepared by the offenders. Holes had been drilled in the blade of the machete. At 3:49pm, another photograph of Mr Kiad holding the machete in front of the flag was taken.

94. At 3.59pm, Mr Kiad used Mr Al-Kutobi’s phone to record a video of Mr Al‑Kutobi pledging allegiance to the Islamic State. In the video, Mr Al‑Kutobi appeared kneeling on the floor in front of the Islamic State flag prepared by the offenders. There was a large machete in front of Mr Al‑Kutobi and he was brandishing the hunting knife.

92. In the video, the offenders spoke in Arabic. The English translation of the video is as follows:

“AL KUTOBI:   In the name of God the Merciful. Praise be to God. Lord of the World. Prayer and peace be upon the master of all messengers Mohammad, son of Abdullah and his good and divine family and companions. Now then, I swear to God, brother today God willing, we will execute the first operation for the soldiers of the Caliphate in Australia, God willing. I swear to God –

KIAD:   God willing.

AL KUTOBI:   I swear to God we will not survive if they survive, God willing.

KIAD:   God willing.

AL KUTOBI:   I swear to God they should expect the worst, God willing.

KIAD:   God willing.

AL KUTOBI:   We ask Almighty God for success and consistency, wisdom and stability and obedience in His name.

KIAD:   By God, Amen.

AL KUTOBI:   Exalted is your Lord, the Lord of might, above what they describe. Peace upon the messengers, and praise to God, Lord of the worlds. Glorify God.

KIAD:   Glorify God. God is great.

AL KUTOBI:   God is great.

KIAD:   God is great.

AL KUTOBI:   God willing, God willing we will avenge our brothers and sisters and mothers and fathers in the land of Caliphate. I swear to God will avenge Burma, Afghanistan, Caucasus and Chechnya and for all Muslim lands.

KIAD:   Little by little people of Rome, little by little.

AL KUTOBI:   I swear to God Almighty, yellow people, there is no reproach between us, you will only get from us the stabbing of your kidneys and –

KIAD:   God is great.

AL KUTOBI:   God willing.

KIAD:   I swear to God amazing brother, swear to God amazing!”

96. Mr Al-Kutobi said in his evidence that the video was sent to Rahman. There is no independent proof of that fact, but I accept that it was sent.

97. After the video was recorded, Rahman and Mr Kiad exchanged the following messages:

“Rahman: How long til the operation?

Kiad: It’s 4.08 in the afternoon and the operation God willing is at 8 o’clock after Maghreb prayer … The time is now 4.08

Rahman: God willing;

Kiad: Peace mercy and God’s blessing upon you too.”

98. Minutes later, police arrived at the offenders’ residence and commenced negotiations with the offenders for their surrender.

Items recovered from the offenders’ residence

99. As earlier mentioned, the offenders agree that a number of items were recovered from the property by police on 10 February 2015. It is necessary to discuss these items in more detail.

100. The first category of items recovered by police included items that related to the creation of an IED. These items included:

1. a red jerry can containing petrol;

2. two packs of handheld sparklers;

3. a yellow coloured liquid which was a medium petroleum distillate such as kerosene;

4. a yellow coloured liquid which was a heavy petroleum distillate such as power steering fluid;

5. a yellow coloured liquid which was primarily a glycol-based liquid such as brake fluid;

6. a pink-coloured liquid which was primarily a mixture of ethanol and petrol; and

7. a “Nescafe” coffee jar containing a sticky pink crystalline substance which was primarily a mixture of petrol, polystyrene and sucrose.

101. The offenders agreed that the contents of the “Nescafe” coffee jar, which go by the common name “Napalm”, could be used as an IED. They agreed that the thickening of the petrol with polystyrene and sucrose has the consequence of prolonging burning. The offenders agreed that it was possible for the coffee jar mixture to be combined with combustible material, such as a flammable liquid, which would create a fire ball when the IED exploded, thereby increasing the damage it would cause.

102. Analysis of Mr Kiad’s mobile phone revealed that he had visited a website which provided simple instructions for the manufacture of an IED. A number of the items mentioned in those instructions were located during the search of the offenders’ residence. After the offenders’ arrest, a police bomb technician recreated an IED using the directions found on the website accessed by Mr Kiad. Those instructions proved to be a viable method of making an IED.

103. I am satisfied that these items were intended to be used by the offenders in pursuit of their admitted aim of damaging or destroying a building.

104. The police also recovered a machete which had been concealed inside the lining of the lounge in the bedroom. The handle of the machete was bound with grey/silver coloured electrical tape, and a black cord was looped through a hole in the handle to create a wrist strap. The length of the blade was approximately 450mm and it contained 6 holes of various sizes. A handheld cordless drill was also located in the kitchen area. Testing established that the cordless drill purchased on 29 January 2015, had been used to drill the holes in the machete. Metal filings recovered from a pair of shorts being worn by Mr Kiad on 10 February 2015, were consistent with the composition of the blade of the machete. I am satisfied that the holes were drilled in the machete shortly prior to the video being filmed.

105. The hunting knife referred to above at [89] was also found at the premises. It was not concealed. The blade of the knife was 15 to 18cms in length. It had a smooth edge on one side and a serrated edge on the other.

106. The police also recovered an Islamic State flag which was hidden in the underside of a sofa chair. The flag was approximately 1x1.5m in size and bore Arabic phrases which, when translated into English, read: “There is no God but God” and “Mohammad is the Messenger”. As referred to above at [62], Mr Kiad purchased the materials for the flag on 29 January 2015. Using Mr Kiad’s laptop, the offenders had accessed a YouTube video which provided step-by-step instructions on how to create an Islamic State flag. The offenders then constructed the flag by obtaining black fabric, cutting out a stencil obtained over the internet, overlaying the stencil on the fabric, and applying paint through the stencil onto the fabric.

107. Also on 10 February 2015, the police recovered a black knitted scarf with holes cut out of it. It was found in a drawer in the bedroom of the premises. It was a tube-like construction of knitted fabric, the end of which had been recently cut. There were freshly cut eye-holes, about 8cms apart, in the approximate centre of the fabric. These alterations made the scarf suitable for use as a balaclava. The colour and style of the balaclava was similar to the colour and style of face coverings worn by members of Islamic State in a number of the images or videos found on the offender’s phones and computers. Many of those photos showed physical threats of injury or death being made, and being carried out by masked men.

108. Finally, the police recovered two notes handwritten by, I am satisfied, the offenders. The first note contained the wording set out in [81] above. When police entered the premises, they recovered that note from inside the toilet bowl in the bathroom. It had been torn up. Forensic analysis, which was not challenged, determined that the torn-up note was unlikely to have been immersed in water for a long period of time prior to being recovered by the police. I am satisfied that when the offenders realised the presence of the police, one or other of them attempted to dispose of this note by tearing it up and placing it in the toilet bowl intending to flush it away. They were interrupted before they could do so.

109. The second note containing the wording “We are the soldiers of the Islamic State we are here to cut your heads” was found scrunched up in soft drink container inside a waste bin in the kitchen. In disposing of it in this way, I am satisfied that the offenders had decided that they would use the slightly different form of words found on the note which was torn up and disposed of in the toilet bowl.

Resolution of the Disputed Facts

110. In resolving the disputed facts in this case, I am only to make a finding of fact adverse to the offenders if I am satisfied beyond reasonable doubt of that fact. By contrast, where the offenders contend for a finding of fact in their favour, then I am only required to be satisfied on the balance of probabilities of that fact: see Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 at [64], [66].

111. There was no substantial difference between the Crown’s version of events and those of the offenders until about 8 February 2015. As mentioned above at [77], the offenders travelled to the Shi’ite prayer hall on the evening of 8 February 2015 intending to destroy or damage the building with “napalm” and the other explosive material, but they decided not to go through with the operation. The principal difference between the Crown’s version and the offenders’ version emerges after that incident on 8 February 2015, and essentially reduces to the following two questions:

1. What was the offenders’ purpose in researching knives and machetes on 8 February 2015, and in ultimately purchasing the hunting knife on 10 February 2015?

2. What, if anything, were the offenders preparing or planning to do between 8 February 2015 and 10 February 2015, and on 10 February 2015 prior to their arrest?

112. In determining these contested issues, I wish to record that I did not believe, and I do not accept, the evidence of Mr Al-Kutobi which is relevant to or which touches upon these issues and the substance of the offence, unless the evidence is independently corroborated or else is against his interest. I have formed this conclusion having had the opportunity of observing and listening carefully to Mr Al-Kutobi as he gave his evidence across a period of three days. In addition to these observations and the comments which I make later, there were parts of his evidence which were simply unbelievable. For example, he claimed that he had forgotten that he had put the jar of napalm under the kitchen sink, and that he did not pay attention to the red can of petrol being kept in the flat. Having obtained instructions about how to make an IED, and taking the napalm to firebomb the Shia temple, I found it incredible that Mr Al-Kutobi could have forgotten about its presence in the flat. Further, his evidence about the timing of the destruction of the handwritten note which was put into the toilet bowl, was directly contradicted by unchallenged forensic evidence. I accept that unchallenged evidence which shows that the evidence of Mr Al-Kutobi on this issue was completely incorrect, and not able to be accepted. As well, as I later discuss, his evidence about the words used in the video filmed on 10 February 2015, in particular the use of the phrase “yellow people”, was most unconvincing.

113. Put together and in light of the totality of all of the evidence, Mr Al-Kutobi’s evidence on the contested issues simply did not seem to me to have the ring of truth about it. However, the mere fact that I do not accept it does not mean that, as a matter of course, the Crown has proved its account of the facts beyond reasonable doubt.

114. It is convenient to turn now to the first of the two issues which require resolution.

Researching of Knives and Machetes and the Purchase of the Hunting Knife

115. It is to be recalled, as set out earlier at [76] above, that on the afternoon of Sunday 8 February 2015, Mr Al-Kutobi undertook a series of searches on the internet for army knives, military knives, tactical knives and machetes. In his evidence, Mr Al-Kutobi said that he was conducting this research because he wanted to “… get like a nice knife to use it for fishing”. He said in his evidence that he went fishing regularly. I accept that, from time to time, Mr Al-Kutobi did go fishing. When Mr Al-Kutobi was asked why he visited machete websites when he was only looking for a fishing knife, he said: “… during the searches like when you go on a website or an internet website you look for an item, there is a couple of items under it so you keep looking through it, you know, and it came on the way.”

116. As discussed above at [89], in the mid-afternoon of 10 February 2015, the offenders attended Peters Camping and Disposal Store at Smithfield and purchased a medium-sized hunting knife. They also carefully examined a new machete. Mr Bruce Malpass, an employee of Peters Camping and Disposal Store who sold the knife to the offenders, gave evidence. In his statement to police, which he confirmed in the witness box, Mr Malpass said that as Mr Al-Kutobi was paying for the knife, they had a conversation to the following effect:

“MALPASS: What are you going to do with the knife?

AL KUTOBI: We’re going deer hunting.

MALPASS: Are you from around here?

AL KUTOBI: We’re from Camden. We’re going down with mates to Melbourne to do some deer hunting.”

117. In his evidence, Mr Al-Kutobi disputed Mr Malpass’ account of the conversation. According to Mr Al-Kutobi, Mr Malpass engaged Mr Al-Kutobi in small talk, asking him where he was from, what he did for work and who he worked with. This conversation was also said by Mr Al-Kutobi to have included discussing the fact that some of his workmates came from Camden. According to Mr Al-Kutobi, Mr Malpass then asked him how he planned to use the knife, and Mr Al-Kutobi responded:

“The creek behind my house, I fish all the time – like, not all the time, but like minimum two to three times a week and [I go on] fishing trips with my mates and friends.”

118. In cross-examination, Mr Malpass said that, to the best of his recollection, there was no discussion of fishing in the conversation with Mr Al-Kutobi.

119. I am unable to accept Mr Al-Kutobi’s account of this conversation. I am satisfied beyond reasonable doubt that Mr Malpass’ account of the conversation should be accepted, for the following reasons.

120. First, although the rules of evidence did not apply to this sentence hearing, it was surprising that the substance of the extensive conversation that Mr Al‑Kutobi asserted he had with Mr Malpass was not put to Mr Malpass. A small part of it was, but other parts of it which were equally important were not. This was particularly important in light of the fact that Mr Malpass asserted that, other than the conversation he recalled in evidence, there was no further conversation. He said, and he was not challenged on this point, that the offenders “… weren’t very conversive”. He explained that, in his experience, some customers spoke a lot more than others. He did not put Mr Al-Kutobi in the category of a person who spoke a lot. Yet, Mr Al‑Kutobi’s account of the conversation is that it was of a reasonable length, chatty and involved discussion of generally irrelevant matters.

121. Secondly, Mr Malpass’ statement to police about the content of the conversation with Mr Al-Kutobi was made the day after the purchase of the knife. Mr Al-Kutobi’s account in the witness box was given over 18 months after the events in question. It is much more likely that Mr Malpass’s memory was clearer and more accurate at the time he recounted to the police what he had heard and said in the conversation, than Mr Al-Kutobi’s memory was at the time he gave his evidence.

122. Thirdly, the actual knife which was purchased was a hunting knife, not a fishing knife. If, as Mr Al-Kutobi asserted, it was a knife intended to be used for fishing, and upon which subject there was a discussion with Mr Malpass, then one would have thought he would have purchased a fishing knife. The knife which he purchased was not a designated fishing knife. In those circumstances, it is inherently improbable that there would be, or that there was, any discussion at all about fishing. If there was, one would have expected Mr Malpass, who was knowledgeable in the field, to have drawn the offenders’ attention to the fact that there were other knives specifically designed to be used for fishing.

123. I also reject Mr Al-Kutobi’s evidence that he was researching knives simply for the purpose of finding a suitable fishing knife. The search terms he entered into Google, including “Australian military knife sale” and “army knife Australia”, are plainly inconsistent with searching for a fishing knife. I also reject Mr Al-Kutobi’s assertion that, in the course of searching for a fishing knife, he incidentally happened to look at machetes as well. The evidence indicates that he specifically searched for “machete shop Sydney” and visited separate machete websites. As well, whilst at the shop, he selected and examined a new machete, before replacing it. I am not persuaded that he did this out of idle curiosity.

124. I am satisfied beyond reasonable doubt that the offenders did not research knives and machetes, and did not purchase the hunting knife, for the purpose of fishing. I am satisfied beyond reasonable doubt that they conducted that research and purchased that hunting knife for another purpose, namely to be used for the infliction of harm on an individual, as part of their conspiracy.

The Offenders’ Plans on 10 February 2015

125. The next area of major factual dispute at the hearing, was whether, having regard to the communications and conduct of the offenders after 8 February 2015, and on 10 February 2015, they intended to carry out an operation later that evening involving the use of a bladed weapon to cause death or serious injury to a person. Put simply, the Crown contended that the conspiracy to which the offenders pleaded guilty was an ongoing one at the time of their arrest, and that the offenders intended later that day to take either, or both, the machete and the hunting knife, and other items such as the Islamic State flag and the balaclava, and cause death or serious physical injury to an unknown individual or individuals.

126. To prove these disputed facts, the Crown relies on various communications and acts of the offenders on 10 February 2015, including:

1. The purchase of the hunting knife from Peter’s Camping and Disposal Store, referred to above at [89];

2. The taking of a photograph of Mr Al Kutobi holding the hunting knife in the car, referred to above at [89];

3. The taking of photographs of Mr Kiad holding the machete in front of an Islamic State flag, referred to above at [92];

4. The writing of two notes bearing the words “We are the soldiers of the Islamic State … We are here to cut your heads”, referred to above at [107]:

5. The recording of a video of Mr Al-Kutobi holding the hunting knife and pledging allegiance to the Islamic State, in which he stated: “we will execute the first operation for the soldiers of the Caliphate in Australia” and “yellow people … you will only get from us the stabbing of your kidneys”, referred to above at [94]; and

6. The message from Mr Kiad to Rahman at 4:08pm that “…the operation God willing is at 8 o’clock after Maghreb prayer”, referred to above at [96];

127. These facts are to be understood in the context in which they occurred, which included the existence of the conspiracy to the extent admitted by the offenders, their conceded support for the Islamic State, and the extremist views of, and conduct by, those who adhered to the tenets of the Islamic State.

128. The offenders submitted that the Crown has not demonstrated this aspect of the conspiracy beyond a reasonable doubt, and that in truth the conspiracy had come to an end with the unsuccessful attempt to damage the Shi’ite prayer hall on 8 February 2015. The offenders submitted that the explanation for the conduct to which I have just referred was that they were attempting to demonstrate to Rahman that they were committed to Islamic State so that he would organise air tickets or payment for them to enable them to fly from Australia to the Middle East to join and become soldiers of the Islamic State.

129. In support of this contention, Mr Al-Kutobi gave evidence about the offenders’ relationship with Rahman. Mr Kiad did not give any evidence. As mentioned earlier, Mr Al-Kutobi testified that, in about October 2014, he became aware of Rahman’s Facebook page. He said that this occurred at a time when he and Mr Kiad were concerned about what was happening to the Muslim people in Syria and Iraq, particularly in Syria under the Assad regime. Mr Al-Kutobi explained that he and Mr Kiad formed a desire to go to the region to help the Muslims there, which led to them contacting Rahman, who held similar views to the offenders about the oppression of the Muslim people.

167. I have earlier concluded that Mr Al-Kutobi’s evidence needed to be corroborated, or against his interest before I could accept it, on the central disputed issues. I am satisfied, however, that I can accept his account of his background and upbringing with some confidence, particularly in circumstances where the prosecution did not challenge it.

168. However, his own account of his renunciation of the extreme views held by followers of Islamic State, and his return to being a follower of the more conservative and conventional views of the Islamic faith, necessarily has to be treated with some reserve. The account is self‑generated and uncorroborated. The cleric who has apparently assisted Mr Al-Kutobi to come to this realisation was not called to give evidence, nor was there any letter or reference from him which was supportive of Mr Al-Kutobi. As well, the fact that his plea of guilty was entered over seventeen months after his arrest and being charged, and on the eve of the commencement of the trial, suggest that his change of his previously held extremist views is a relatively recent phenomenon.

169. Mr Kiad

170. Mr Kiad did not give any sworn evidence about his personal circumstances. The only source of material available was the account he gave to Dr Seidler, a psychologist. That account, from the Court’s perspective, is an indirect one, and unsupported by sworn evidence, and so carries only limited weight.

171. Mr Kiad tendered the report of Dr Seidler. According to that report, Mr Kiad was born in July 1989 and, accordingly, was about 26 at the time of these events. He possesses limited English skills. He was born and raised in Kuwait as the fourth of 9 children. His upbringing was difficult because he was exposed to disenfranchisement and racism within his own country. This was because his paternal grandfather was a Bedouin, a group of desert dwellers who generally did not find favour in the Kuwaiti culture. Mr Kiad described a largely stable family life and upbringing, with good relationships with his siblings.

172. Mr Kiad completed his secondary education in Kuwait and moved on to study nursing in a private college for a number of years. He volunteered for the Red Cross in Kuwait because he was unable to obtain paid work as a nurse, because of his Bedouin lineage.

173. Mr Kiad came to Australia on or around January 2012 in order to live here with his new wife. He found the initial adjustment to living in Australia difficult. He obtained permanent residency by reason of his partnership with his spouse. This residency appears to have been recently cancelled.

174. Mr Kiad told Dr Seidler that he was addicted to cannabis and had tried other drugs. He thought his substance abuse was motivated by the desire to self‑medicate as he was trying to forget his personal problems and improve his mood. His arranged marriage was not successful.

175. Dr Seidler reported that Mr Kiad had told him that since being held in custody his views with respect to Islamic State had considerably moderated. He no longer desired to go to Syria or to help Islamic State. There does not seem to be any identifiable psychiatric or psychological condition affecting Mr Kiad. Whilst he may have felt depressed from time to time, such feelings were not adequate to amount to a diagnosable psychiatric condition.

176. Dr Seidler concluded:

“In sum, this is an unfortunate case of a young man, whose early life of alienation and marginalisation saw him develop with a strong sensitivity to injustice. He seems to have lived a life of under achievement as a result of his minority status and Mr Kiad had hoped that moving to Australia might change this. However, the reality of his new life meant Mr Kiad was depressed, isolated and vulnerable and it was within this context that he turned to illicit drug use as influenced by his only friend in this country. This is also a relationship that provided fertile ground through shared experience, for extremist ideology to take hold that provided the justification for planning to engage in an act of terror to secure passage to Syria and serve Islamic State with the misguided belief that this might give life some purpose and meaning.”

Sentencing Principles

177. Speaking generally, in determining an appropriate sentence, the Court is required to first attend to the relevant statute. Here, s 16A(1) of the Crimes Act 1914 (Cth) requires that in determining a sentence to be passed in respect of a federal offence, the Court is to impose a sentence that is “of a severity appropriate in all the circumstances of the offence”.

178. Section 17A of the Crimes Act provides that a term of imprisonment is not to be imposed unless the Court is satisfied that no other sentence is appropriate in all of the circumstances of the case. For the reasons which will become apparent, I am so satisfied.

179. The common law provides that punishment of an offender by the imposition of a sentence is designed to achieve a series of purposes, namely protection of society, deterrence of the offender and of others who might be tempted to offend, retribution, and reform or rehabilitation. These purposes are overlapping and often in tension. The purposes of ensuring adequate punishment of the offender and promoting the offender’s rehabilitation, for example, are not always compatible. These common law principles continue to apply when sentencing an individual for an offence against the Code.

180. In sentencing an offender for a terrorism offence, one of the ways in which the purpose of protecting the community can be fulfilled, is by incapacitating the offender from being able to plan, and ultimately commit, a terrorist offence at any point in the future.

181. The maximum penalty for the offence to which the offenders have pleaded guilty is life imprisonment. This is fixed by the Parliament to indicate the seriousness with which terrorist offences of this kind are viewed, and to enable a Court, where just and appropriate, to impose a condign punishment. As well, when sentencing an offender, a court should be mindful of the maximum penalty as a statutory guidepost which assists in the determination of an appropriate sentence.

Matters to be considered on sentence: s 16A Crimes Act 1914

182. Section 16A(2) of the Crimes Act sets out certain matters which, if relevant, the Court must take into account in determining an appropriate sentence. The Court may also take into account additional matters which it considers relevant to sentence.

The Nature and Circumstances of the Offence: s 16A(2)(a)

183. I have already discussed the nature and circumstances of the offending, including the objective seriousness of the offending, which, notwithstanding the relatively short period of a few weeks during which the conspiracy was in existence, I consider to be above the mid-range for offences of this kind. However, I wish to make some further observations about the nature of the offence in this case, being a terrorism offence.

184. In considering the nature of the offence committed by each offender, it is relevant to observe that Australia is a country which prides itself on its pluralism and multiculturalism, features which are underpinned by broadly shared democratic values of acceptance, tolerance, and mutual respect. Australia’s status as an advanced, peaceful, and culturally rich democracy owes much to the contributions of people of diverse faiths, cultures, and racial and ethnic backgrounds. Australia’s pluralism and multiculturalism are features of our polity of which we can all be proud and which lie at the core of our national identity.

185. It is in this context that extremist beliefs and ideologies which preach intolerance, hatefulness and violence towards other members or sections of the Australian community are to be most strongly deprecated. Such beliefs and ideologies run utterly counter to what this country stands for. The extremist views held by the offenders in this case, which cast non-Muslims as an enemy that need to be destroyed, simply cannot be tolerated. Not only are these views incompatible with Australian values and ideals, but they also pose a real risk of significant harm to the Australian community where, as here, they are sought to be acted upon through the use of violence.

186. In making these observations, I wish to emphasise that they apply not only to the particular views which have fallen for consideration in this case, but to any extremist ideology or belief which encourages harm or violence to others in the community. It cannot sensibly be suggested that the beliefs of the offenders in this case are at all representative of those held by the nearly half a million Muslims presently living in Australia, the vast majority of whom respect this country’s values and ideals and who make a valuable contribution to its economy and society.

187. In light of these observations, it is incumbent upon the courts, when sentencing for offences of this kind, to make it absolutely plain that extremist ideologies and beliefs have no place in Australian society, and that violent conduct engaged in pursuant to such ideologies and beliefs will be taken extremely seriously.

Plea of Guilty: s 16A(2)(g)

188. As earlier indicated, each offender entered a plea guilty 5 days before their trial (estimated to take 6 to 8 weeks) was due to commence. Section 16A(2)(g) of the Crimes Act requires the Court to take into account the fact of a plea of guilty. I do so.

189. In considering what discount ought properly be assessed and allowed to each of these offenders, it is also necessary to keep in mind that the Court was engaged over a number of days in hearing a number of witnesses, including a protected witness (Witness B), and the offender Mr Al Kutobi, in determining the facts which the Crown could prove in relation to the offenders’ conduct.

190. On the one hand, a jury trial of some length was avoided by the pleas of guilty; on the other hand, a number of witnesses (fewer than would otherwise have been necessary) were required to give evidence and be cross‑examined.

191. There is conflicting legal authority as to whether, when applying the provisions of s 16A(2)(g) of the Act, the Court is entitled to have regard to the utilitarian benefit of the plea of guilty, objectively ascertained, as well as, or instead of, the willingness of an offender to facilitate the course of justice, subjectively ascertained, or both. Some judgments suggest that the difference between these two expressions is merely semantic. It is not for me in the course of this sentence to engage in a resolution of those differing authorities. I am bound to apply the authority of Tyler v The Queen [2007] NSWCCA 247; (2007) 173 A Crim 458. However, even applying that authority, there is very little difference, if any, in the particular circumstances of this case between the discount which would be allowed if one was considering the offender’s willingness to facilitate the course of justice, or the objectively ascertained utilitarian value of the plea. That is because of the fact that the plea was late and was only entered a few days before trial. The determination of disputed facts meant that a number of witnesses were called to give evidence.

192. Counsel for Mr Al-Kutobi submitted that a discount in the range of 17.5% to 20% ought to be allowed. I am of the view that some discount should be allowed to both offenders which is about the bottom of that range. However, the Court is not obliged, in allowing a discount for a plea of guilty, in respect of a Commonwealth offence, to quantify or numerically specify that discount. It is commonly accepted that a court should not do so. I will refrain from doing so. However, it is appropriate that I make it plain that I give full weight to the entry of the plea of guilty by each of the offenders as indicating a willingness to facilitate the course of justice which, in this case, indicated an acceptance by each of them that a jury should not be empanelled to hear all of the evidence in their trial, and a willingness on their part to forego the right to cross-examine a significant number of witnesses who gave evidence against them. Their pleas involved an acceptance of a large amount of factual material which might otherwise have been in dispute.

193. Thus, there is little difference, if any, in the allowance which I make, were I also to consider objectively the utilitarian benefit of the avoidance of a trial.

Contrition: s 16A(2)(f)

194. Mr Al-Kutobi in his evidence and in his letter to the Court expressed his contrition for the offence. Mr Kiad gave no evidence about, nor did he indirectly, through the report of the psychologist, Dr Seidler, indicate any contrition for his involvement in the offence, although with the benefit of hindsight, he did express some regret for his offending.

195. The pleas of guilty display some contrition, although the arguments advanced by counsel for each offender, particularly with respect to the findings of fact urged upon the Court, do not permit this Court to conclude that the offenders’ contrition measured by their plea of guilty extends to anything other than being involved in an attempt to blow up the Shi’ite prayer hall.

196. The Court will have regard to these matters and take them into account as weighing in the offenders’ favour when considering an appropriate sentence.

Prospects of Rehabilitation: s 16A(2)(n)

197. I am unable to form any view about the prospects of successful rehabilitation for either offender. In [162] above, I expressed my reasons for this with respect to Mr Al-Kutobi. With respect to Mr Kiad, from whom I had no direct evidence, either orally or in writing, it is simply too early to know whether the views expressed to Dr Seidler are sincerely held, and whether they will become embedded as part of his attitudes and personality over time. Much will depend on the courses which he is able to, and which he does undertake.

198. I am very much hopeful that the offenders will be successfully rehabilitated. But I cannot take account of such a hope without material which would enable me to conclude that there is a realistic basis for the conversion of that hope into a reliable prediction of successful rehabilitation.

Deterrence: ss 16A(2)(j) and 16A(2)(ja)

199. Both general and specific deterrence are matters to which a Court is obliged to have regard. The sentence which is imposed must convey a clear signal to those in the community who have a tendency or inclination towards the commission of terrorist offences that such offences will be strongly discouraged thereby contributing to the cessation of such offences.

Character, antecedents and individual personal factors: s 16A (2) (m)

200. I have earlier described the subjective circumstances of each of the offenders. Those circumstances will be taken into account. In particular, I record here that neither of the offenders had any previous criminal history of a serious offence, nor of any conduct relevant to my consideration of the appropriate sentence. Both offenders are to be sentenced on the basis that this is their first offence.

Adequate Punishment: s 16A(2)(k)

201. The Court is required when sentencing these offenders to take into account the need for the offenders to be adequately punished. I do so.

Conditions of Custody

202. An additional matter relevant to sentence, and which was raised in submissions, is the conditions of incarceration of the offenders, and the likelihood of the continuance of those conditions whilst ever their security classification remains. The particular conditions of their custody arise because the offenders have been charged with, and convicted of, a terrorist offence. Those custodial conditions apply broadly to all offenders who are convicted of terrorist offences. In other words, the conditions of custody are fixed generally rather than tailored specifically to either or both of these offenders. It is appropriate to keep in mind those conditions, which mean that their period in custody will be somewhat more harsh than the general population of maximum security inmates, and to make an allowance in a general sense, rather than by mathematical calculation, to ensure that the sentence imposed has regard to the particular harshness of the conditions of custody.

203. Equally, it is important to keep in mind that these conditions may change in the future, particularly if the offenders make good progress towards rehabilitation.

Sentence

204. The roles of each of the offenders in the conspiracy were substantially the same. They were equal participants in the agreement and in the events which occurred. There is simply nothing which differentiates those roles.

205. There are some differences in their subjective circumstances, but these differences are not enough to warrant the imposition of differing sentences. The subjective circumstances are broadly similar. In any event, in circumstances where the Court is called upon to sentence for terrorist offences of this seriousness, the Court must give greater attention to matters of community protection and general deterrence than to subjective circumstances.

206. After making due allowance for all of the matters for which discounts would be appropriate, such as their pleas of guilty, expressions of contrition, and the harsh conditions of their custody, but paying particular attention to the statutory requirement that the sentence is one which is of appropriate severity in all of the circumstances, I have concluded that a sentence of 20 years imprisonment for each offender is the appropriate one.

207. The provisions of ss 19AB(1) and 19AG(2) of the Crimes Act mean that I am obliged to specify a non-parole period of 75% of the term of imprisonment, as the minimum term which each offender must serve before being eligible for release. Accordingly, the non-parole period which the law requires me to impose is 15 years.

Orders

208. I impose the following sentences:

1. Mr Al-Kutobi is sentenced, for the offence contrary to ss 101.6(1) and 11.5(1) of The Criminal Code (Cth) 1995 of conspiring to commit an act or acts in preparation for or planning a terrorist act, to a term of imprisonment of 20 years to commence from 10 February 2015, and to conclude on 9 February 2035. I fix a non‑parole period of 15 years, commencing on 10 February 2015 and expiring on 9 February 2030.

2. Mr Kiad is sentenced, for the offence contrary to ss 101.6(1) and 11.5(1) of The Criminal Code (Cth) 1995 of conspiring to commit an act or acts in preparation for or planning a terrorist act, to a term of imprisonment of 20 years to commence from 10 February 2015, and to conclude on 9 February 2035. I fix a non‑parole period of 15 years, commencing on 10 February 2015 and expiring on 9 February 2030.

Explanation

209. The provisions of s 16F of the Crimes Act require me to explain the purpose and consequence of the fixing of the non-parole period. The sentences that I have just imposed on each of you entail a period of imprisonment of not less than 15 years from the date upon which you were arrested. After that time, if you are considered suitable to be released on parole, you will serve the balance of your sentence in the community. During that period, you will be subject to various conditions and you will be subject to supervision. If you do not comply with any of the conditions imposed or the reasonable requirements of your supervisor, you are liable to be returned to custody for the balance of your sentence.

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Amendments

10 December 2016 - Review amendments

Decision last updated: 10 December 2016