R v Amin

[2021] NSWSC 1267

Supreme Court

New South Wales

Medium Neutral Citation:

R v Amin [2021] NSWSC 1267

Hearing dates:

27 and 28 September 2021

Date of orders:

11 October 2021

Decision date:

11 October 2021

Jurisdiction:

Common Law - Criminal

Before:

Garling J

Decision:

See [114]

Catchwords:

CRIME – Terrorism Offences – doing an act in preparation for or planning a terrorist attack – attempt to export goods that are prohibited under the Customs Act 1901 – objective seriousness for both offences below mid-range – reasonable prospects of rehabilitation – need for specific deterrence - aggregate sentence imposed

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code (Cth)

Customs Act 1901

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Sentence

Parties:

The Crown
Nowroz Rayed Amin (Offender)

Representation:

Counsel:
C O’Donnell SC / B Anniwell (Crown)
G Jauncey (Offender)

Solicitors:
Director of Public Prosecutions (Crown)
Dibb & Associates (Offender)

File Number(s):

2018/186647

Publication restriction:

Not Applicable

REMARKS ON SENTENCE

1. Nowroz Amin (“the Offender”) is to be sentenced upon his plea of guilty for two offences:

1. an offence that between 26 May 2015 and 7 February 2016, at Sydney in the State of New South Wales and elsewhere, he did acts in preparation for, or planning, a terrorist act or acts contrary to s 101.6(1) of the Criminal Code (Cth) (“the terrorism offence”); and

2. that on 7 February 2016, at Sydney, he did attempt to intentionally export goods, being Tier 1 goods, comprising material that advocated the doing of a terrorist act, being reckless as to the fact that the goods were Tier 1 goods, and being goods the exportation of which was prohibited under the Customs Act 1901 (Cth), unless the approval of a particular person had been obtained, and at the time of the exportation that approval had not been obtained contrary to s 233BAA(5) of the Customs Act 1901, and s 11.1(1) of the Criminal Code (“the Customs Act offence”).

2. The Offender pleaded guilty to the Customs Act offence in the Parramatta Local Court on 8 October 2019. It carries a maximum penalty of 5 years imprisonment or a fine or both.

3. The Offender pleaded guilty to the terrorism offence on 15 April 2021, in circumstances where his trial was scheduled to commence on 19 April 2021. It carries a maximum penalty of life imprisonment.

Agreed Facts

4. The Offender and the Crown have agreed on the facts upon which the Court is to sentence him. As will become apparent, they are not agreed on the inferences to be drawn from those facts. Putting the issue in dispute shortly, the Crown contends that at the time the Offender engaged in the conduct which constitutes the terrorism offence, he intended that the terrorism act or acts would occur in Australia, Bangladesh or in both places. The Offender disputes this. He agrees that he intended that the terrorist act or acts would occur in Bangladesh but does not agree that they would have occurred in Australia. In final submissions, the Crown added Syria to the places where it is said that the terrorist act or acts could be committed. Again, the Offender disputed this.

5. The Agreed Facts, which are lengthy, are annexed to these Remarks. They have all been carefully considered. It is convenient, as the Agreed Facts do, to set out in summary form the acts which the Crown relies upon, and the Offender admits, constitute the acts in preparation or planning for a terrorist act. Those acts are summarised as follows:

“8.   In summary, the specific acts in preparation of and planning for a terrorist act or acts that the Offender engaged in include:

a.   social media communications with two persons residing in Bangladesh, and with other unknown persons, in which the Offender discussed his plans to travel to Bangladesh, his extremist ideology, and resource materials such as the ‘Anarchists Cookbook’, and ‘Islamic State 2015”, an online publication of Islamic State;

b.   social media communications in which the Offender sought guidance, instructions and lessons from his associates or people known to his associates on how to make an improvised explosive device (‘IED’) and/or an incendiary device (‘ID’) for the purpose of carrying out a terrorist attack …;

c.   on 19 August 2015, the Offender accessed a file on one of his electronic devices with the title ‘How to make a cocktail bomb’;

d.   social media communications in which the Offender made arrangements for his upcoming trip to Bangladesh including in relation to purchasing extremist literature and access to weapons;

e.   social media communications with others in which the Offender discussed sourcing other persons to carry out a terrorist act in Bangladesh, the equipment, money and training those persons would need and arrangements for those matters;

f.   the Offender’s transfer of AUD$5,958 to his wife who resided in Bangladesh;

g.   the Offender’s attempt to travel from Australia to Bangladesh on 7 February 2016; and

h.   the Offender accessing, downloading and storing a range of images, videos, documents and other electronic material which broadly supported, or provided instructions on, the doing of a terrorist act, provided instructions on how to make an IED or ID and generally advocated violence …”

6. The context in which the acts engaged in by the Offender occurred, was that during the period of September 2013 to August 2015, the Government of Bangladesh, which was also known as the Awami League, took steps to prosecute a number of individuals who, it was said, had collaborated with the Pakistani Army in committing genocide and other crimes during the 1971 Bangladesh Liberation War. Most of the key accused were Bangladeshis who were members of the East Pakistan Jamaat‑E‑Islami Party, which was later renamed Bangladesh Jamaat‑E‑Islami Party (“BJI”), the largest Islamist political party in Bangladesh.

7. During the period when these war crime trials were being pursued, there was a marked escalation of tension between members of the Awami League and Islamists in Bangladesh, who were supporters of the BJI.

8. At or about this time, the Islamic State (“IS”) was emerging in its Middle Eastern heartland and drew support from extremists from the rest of the Muslim world. IS attracted supporters and sympathisers in Bangladesh. There was in existence at the time a group of longer standing, Al Qaeda in the Indian Sub‑Continent (“AQIS”), which had also influenced extremists in Bangladesh.

9. During the relevant period there were a number of violent attacks mounted, either by IS or AQIS or else by groups loosely associated with them, all of which were directed towards the Government of Bangladesh.

10. In light of this contextual background, it is necessary to set out some of the communications which the Offender had, because they are central to the issue of whether the Crown has satisfied me beyond reasonable doubt that the appropriate inference to be drawn is that the Offender intended to carry out acts of terrorism in Australia, as well as in Bangladesh.

11. The Agreed Facts contain material which occurred before the date range of the charges on the Indictment. Although the factual context can be derived from these pre-Indictment communications, it is necessary to concentrate on the communications sent during the time period specified in the Indictment, for the purpose of reaching any conclusion about where the Offender intended to carry out any terrorist act.

12. On 25 May 2015, the Offender sent a voice message to a person in Bangladesh with the username SHUV01. In part it said:

“… now in our country it is the same situation … continuing; everybody is saying that if you do not go (move) there then it becomes a mandatory over here that is to do (/to make happen of) something at the place (land) where you live ...”

13. On the next day the Offender sent a voice message to SHUV01 in which he said:

“Sorry, I was trying to say, if you cannot go there, … if you cannot go there … then in [your] own country … then do a thing in own country.”

14. In the period between 7 and 10 August 2015, the Offender had a number of chats with SHUV01. Those chats included the following exchange, which began on 7 August 2015.

“Offender:   I may come (go) [to Bangladesh] within a few days … for one month …

…

Offender:   This is the first thing …

…

Offender:   Second thing, our boys will open a restaurant now [wink emoji] … within a few weeks.

SHUV01:   … where? …

Offender:   Australia.

SHUV01:   Where … Ooo?

Offender:   Big operations.

SHUV01:   How can I eat?

Offender:   Now I need a little bit of cooking class … I want to learn cooking.

SHUV01:   Don’t you have cooker … experienced?

Offender:   There will be for sure.

…

SHUV01:   OK, God willing … when are you coming?

Offender:   Now the situation of Sydney is dependant upon me … October … and quickly now no playing around. I need to know this ASAP.”

15. On 11 August 2015, the offender had a chat with another person residing in Bangladesh known as “Rativ”. That chat included the following:

“Offender:   I will be in Bangladesh around October … but I’m gunna be going for a reason … the reason is things in Australia are going to get very hot soon, God willing … if you know what I mean.

Rativ:   I got it brother … weather is also changing here frequently … sometimes it rains unusually … you know what I mean.

Offender:   So what I need to do is learn how to cook some recipes … in Australia we don’t have that knowledge … do you know anyone that can teach me how to cook?

…

Offender:   I will be [in Bangladesh] for one month. In one month I have to come back with some recipes. The brothers over here are ready to open a restaurant.”

16. The Agreed Facts also go on to record that on 7 February 2016, the Offender attempted to leave Australia from Sydney International Airport to travel to Dhaka in Bangladesh via Singapore. He held a return ticket which provided for his return to Australia on 7 August 2016.

17. At the time he was stopped at Sydney International Airport, the Offender was located with a small pouch containing a number of storage devices, a mobile phone and tablet, tan coloured tactical boots which he was wearing, and various documentation including a yellow piece of paper with handwriting. His suitcase was examined by Australian Border Force officers and found to contain:

1. four pairs of camouflage trousers;

2. three scarves;

3. a pair of mixed martial arts gloves and training pads;

4. a torch;

5. Bangladesh currency and about $3,170 in Australian currency.

18. At the time he was spoken to at the Airport, the Offender told the Australian Border Force officers that the USBs contained terrorism related material and that he had them in his possession to educate his cousin in Bangladesh and to try and dissuade him from joining IS.

19. The Offender was not permitted to travel at that time. His passport was suspended and later cancelled.

20. When the various electronic items found in the Offender’s possession were examined, there were at least 25 publications, films or other material which broadly supported, or else provided instructions on, the doing of a terrorist act, or generally advocated violence. These publications, being in the Offender’s possession as he attempted to leave Australia, are the subject of the Customs Act offence.

21. The publications included Issues 1-10 of the IS produced Dabiq magazine, an on-line publication of IS called “Islamic State 2015” which, amongst other things, included an article detailing in depth battle strategy and which described a battle method used by IS fighters “… involving a martyrdom seeker driving an armoured BMP vehicle into a military base and detonating it where the enemy was hidden” and the Anarchists Cookbook – which is an extensive 241 page instruction manual on explosives, explosive devices, bomb making and other terrorist techniques. It includes reference to 219 separate terrorist techniques. There were a number of other publications, together with videos promoting AQIS and IS which contained scenes of executions and suicide bombings.

22. This material was prohibited by the Customs Act from being exported.

23. On that day, the Offender was interviewed by the police. On the following day, a search warrant was executed at his home. Various mobile phones, computers and hard drives, and other storage devices, together with some miscellaneous material which could relate to military or paramilitary service were located.

24. The next interaction between the police and the Offender occurred over two years later on 16 June 2018, when a second search warrant was executed at the Offender’s home address. A number of items were seized, including a mobile phone, a computer, discs and various handwritten documents obviously written by the Offender. The Offender was arrested and taken to the Campbelltown Police Station where he was charged. He was taken into custody at that time.

25. The Facts record that the Offender has no prior criminal convictions in Australia.

Offender’s Oral Evidence

26. Oral evidence was taken on the sentence proceedings. In part that oral evidence was directed towards the disputed issue.

27. In the course of oral evidence, the Offender agreed that at least in September 2014, he was a committed (100%) supporter of IS. It was put to the Offender by the Crown that his admitted desire to fight as a Mujhideen in the cause of IS carried with it an adherence to the belief that in order to assist with establishment of the Caliphate in Syria and elsewhere, if he was unable to travel overseas from Australia to provide that support, then he should carry out violent acts in the place where he was living. The Offender responded that he was “actually conflicted about that opinion”. When asked to explain what he meant by the use of the phrase “conflicted about”, he said that he did not know what to make of the statement. He rejected the proposition that his belief at the time was that if he was not able to get to Syria, it would be permissible for him to carry out an act of violence in Australia to advance the cause of the Caliphate. He denied that that was his belief.

28. The message to which I have referred earlier at [12] was put to the Offender, together with the proposition that he was referring to Australia when he used the words “mandatory over here … ie to make something happen at the place, (land) where you live”. The Offender denied that. He said that at the time, he was speaking to SHUV01 who was in Bangladesh, and they were discussing matters to do with actions in Bangladesh.

29. When asked about his knowledge of anybody in Australia who was willing to make explosives in Australia, the Offender denied that he knew anyone who was willing to do such a thing. He said he certainly knew people in Australia with IS ideology, but not anyone who wanted to make explosives at any place in Australia.

30. The Offender agreed, readily, that he was seeking to identify someone who could teach him to make explosives but said that that was in respect only of being taught in Bangladesh so that he could use explosives in that country.

31. The Offender also agreed that when talking in the terms set out in [12]-[14] above, he was intending to convey an impression to SHUV01 that he wished to acquire an expertise in manufacturing explosives so that he could utilise them in Sydney. However, he said that whilst that was the impression he set out to create it was not in fact the truth.

32. Again, the Offender accepted that the words that he had said to Rativ, to which reference has been made in [15] above, gave the impression that an attack of some sort was going to happen in Australia, but that in so doing he was just boasting, trying to make a name for himself and just showing that he was a willing participant so as to impress Rativ in order that he would recruit him in Bangladesh to carry out acts in that country.

33. The Offender was firm in his denials that at any point in time, he intended to, or was involved in, or was prepared to, carry out any terrorist attack in Australia.

34. The following exchange occurred in the course of cross-examination:

“Prosecutor:   Had you heard the quote …: ‘If you can kill a disbelieving American or European – especially the spiteful and filthy French or an Australian or a Canadian or any other disbeliever from the disbelievers waging war, including the citizens of the countries that entered into a coalition against the Islamic State, then rely upon Allah and kill him in any manner or way however it may be.’

…

Prosecutor:   I put it to you that you agree with the sentiment expressed in that quote.

Offender:   At the time this is something that Mohammad Al Adnani said, but I was in conflict within this certain opinion.

Q.   Well I put it to you that between 2014 and 2016, this was a belief that you held as well?

A.   Between what period?

Q.   2014 to 2016?

A.   Like I said, I was conflicted about this opinion.

Q.   In effect, you believed that it was not just permissible, but necessary if you couldn’t go elsewhere, to carry out acts of extremist violence in Australia to advance the ideological beliefs that you’ve described earlier?

A.   Like I said, I was very conflicted about this opinion. …

His Honour:   Do I take it from your last answer, when you say you were ‘very conflicted about this opinion’, that you didn’t either wholly agree with it, nor did you wholly reject it?

A. That’s correct.

Prosecutor:   And with that state of mind, you were prepared I suggest to engage in acts in preparation for terrorist acts that might occur in Australia as well?

A. Sorry, what was that last bit, sorry?

Q.   You were prepared to – you were willing I should say, to engage in acts in preparation for a terrorist act or acts that would occur both in Bangladesh and Australia?

A.   Not Australia.

Q.   Not just Bangladesh?

A.   No, just only Bangladesh.”

35. Later in the cross-examination, the Offender was asked about whether, if he formed the opinion that Muslims as a group were being oppressed in Australia, he would regard it as permissible to engage in any form of violence. He denied that that was correct.

Disputed Issue - Discernment

36. The disputed issue centres upon what meaning ought to be attributed to various statements made by the Offender which are contained in the Agreed Statement of Facts, including those to which I have made reference.

37. The Crown’s case is that, on their face, the words used bear the ordinary meaning that the Offender intended to carry out hostile acts of terrorism in Australia. It follows, in the Crown’s submissions, that the Court should not accept the Offender’s evidence when he denies that this is so. The context in which the Crown submits that the words should be interpreted is that the Offender has acknowledged that he was at that time a supporter of the ideals of IS, that he was prepared to commit acts of violence in accordance with its mission and that the ordinary meaning of the words are consistent with that context.

38. I do not accept that the Crown has discharged its onus on this disputed issue. There are a number of reasons for this. First, I accept the Offender’s evidence that he had not embraced that part of the extremist IS ideology that mandated the taking of violent action in a person’s home city or nation when they were unable to travel to an IS stronghold or an area where IS was operating. Secondly, all of the communications in which the plaintiff was engaged were with people who were located outside Australia and centred upon discussion as to what the plaintiff might do and what he might engage in, if and when he travelled to Bangladesh. Thirdly, conversely, there were no communications with anybody in Australia which indicated that the Offender had taken any steps to undertake any action in Australia. It was not said that he had provided himself with any arms or explosives or other material, nor that he had taken steps to acquire such items in Australia. Fourthly, to the extent that the words can be interpreted as the Crown contends, they would be contrary to the context of all of the other messages and communications about going to Bangladesh and undertaking hostile activity there. Finally, there was no conduct by the Offender which suggested that he was in fact arming himself to take violent action in Australia.

36. For those reasons I am not satisfied when the Offender said the various words relied upon by the Crown that he was intending to, preparing for or planning to undertake any conduct of a violent or hostile kind within Australia.

37. Accordingly, I am satisfied that insofar as, on the Agreed Facts, the Offender was engaging in acts in preparation for a terrorist act, that any such terrorist act was to take place in Bangladesh, and not in Australia.

38. In submissions at the conclusion of the sentencing proceedings, the Crown submitted that it would be open to the Court to also find that the Offender intended to carry out hostile acts in Syria. I am not persuaded that this is so.

39. There are two principal reasons for this. The first is that it is manifestly clear that the Offender was attempting to get to Bangladesh to there join one of the extremist groups with whose ideology he identified. That intention was because of his family connection to Bangladesh, which was cemented by the fact that he had married in Bangladesh and his wife continued to live there.

40. Secondly, insofar as the Offender had expressed a wish or a desire to go to Syria to join with IS forces, it became promptly apparent some years earlier than the time covered by the Indictment, that he regarded that as an impossibility. He did nothing more about going to Syria. This is clear from the fact that there was nothing about any of the communications relied upon in the course of the period, the subject of the Indictment, that mentioned anything about the Offender travelling to Syria.

41. The Offender is to be sentenced on the basis that the acts which he undertook upon which the Crown relies, and which he admits, were being taken in planning, or preparation for the performance of terrorist act or hostile or other violent acts in Bangladesh and nowhere else.

Terrorism Offences

45. The first offence to which the Offender pleaded guilty is a terrorism offence. One of the defining features of terrorism is that its object is to use serious violence, or the threat of it, to coerce or intimidate a community or government in pursuit of a political, religious or ideological cause. It is obvious that terrorist actions can cause immense harm. Terrorism engenders fear and distrust within a community which will impact in many ways on the daily functioning of an entire society. What was in contemplation here was to engage in terrorism in Bangladesh with the intention of attacking the government there in retribution for what was perceived to be its conduct against Islamists.

46. Although the acts in preparation for a terrorism act were relatively early in the timeline, nonetheless the Offender has engaged in conduct which constitutes the commission of a serious offence.

Objective Seriousness

47. One of the matters which a sentencing court must address is the relative seriousness of this offence when compared with other offences of a like kind.

48. As earlier indicated, the maximum penalty for this offence is life imprisonment. It follows from that and the nature of the offence that there will be a large variety of circumstances which come before the Court where offenders have engaged in conduct of this kind.

49. The Crown submitted that in all of the circumstances the Court ought conclude that the objective seriousness of the terrorism offence fell within the mid-range. The offender submitted that it fell below the mid-range.

50. The offending caught by the Indictment for the terrorism offence took place over a period of about eight and half months. It consisted of conversations, messages and discussions in which the Offender explored the ways in which he might go about travelling to Bangladesh to participate there in one or more acts which might lead to the overthrow of the Bangladesh Government, or else to perpetrate violent and hostile acts to express displeasure at the conduct of that government, which acts would have led to death or serious injury of members of the Bangladeshi public. Finally, he attempted to leave Australia and fly to Bangladesh.

51. At no time was the Offender armed. At no time had he entered into definite arrangements to join a particular group in Bangladesh, to do a particular act or engage in particular planned conduct in circumstances where he felt quite strongly that the Bangladesh Government was unfairly targeting Islamists with conservative views. As well, he supported the philosophy of IS and wanted to devote himself to being a warrior in the cause of Allah. He could, of course, have chosen to do any number of those things without engaging in violence, or without encouraging the commission of violence by others. However, he chose to explore the path of violence but he had not engaged with it in any meaningful way prior to attempting to travel to Bangladesh. To an extent he was influenced in that choice by others but, as it seems to me, reached that state of mind himself in circumstances where he is neither uneducated or unintelligent.

52. The acts which are admitted by the Offender constituted all of the acts in which he intended to engage whilst in Australia because the relevant period of the Indictment ceases at the time he attempted to leave Australia. The totality of those acts do not disclose any firm, fixed or developed plans for engaging in terrorism activities in Bangladesh.

53. In all of the circumstances, in my view, relative to other offences of this kind, this offending fell below mid-range.

54. The Customs Act offence involved the Offender attempting to take with him prohibited publications. These were publications largely, although not entirely, available overseas and via the internet. It was more a matter of convenience for him that he took copies of them with him when he left Australia. I regard this offence as being towards the bottom end of the range of these offences.

Sentencing Considerations

55. Sentencing in this matter is governed by the provisions of Part 1B of the Crimes Act 1914 (“the Act”) together with the principles developed by the common law.

56. Section 16A of the Act requires that when a court imposes a sentence for a federal offence, it must impose a sentence that is of a severity appropriate in all of the circumstances of the offence. The Offender did not submit that a sentence of imprisonment ought not be imposed.

57. In sentencing an offender for terrorist offences, the protection of the community, the punishment of the offender, the denunciation of the offence and both general and specific deterrence all assume great weight. As well, it is necessary in the application of those considerations to incapacitate an offender so that the community is protected from him completing the crimes for which he was preparing.

58. Section 16A of the Act requires the Court to take into account particular matters which are relevant. Section 16A(2) requires the Court to take into account the nature and circumstances of each offence – as I have earlier done. Whilst I have summarised the most important of the Agreed Facts, I have paid careful attention, and had regard, to all of the Agreed Facts contained in the Annexure to these Remarks.

Contrition

59. As earlier noted, the Offender pleaded guilty to the Customs Act offence in the Parramatta Local Court and pleaded guilty to the terrorism offence on 15 April 2021 – a few days before his trial was due to begin. However, it is clear, and of relevance to the issue of contrition, that from July 2019 there were negotiations between the Crown and the Offender about a plea of guilty to an appropriate charge. I take into account both the act of pleading guilty to the Customs Act offence and the offer to plead guilty to an offence arising out of the known facts, as an expression of contrition on the part of the offender. However, looking at the matter as an expression of contrition, I need to keep in mind that the weight to be put upon such expression is tempered by the strength of the Crown case which would, in my assessment, have always led to a conviction.

Pleas of Guilty

60. Where an Offender pleads guilty to one or more offences, that plea facilitates the course of justice. It means that there is no trial to be had before a jury. It means that many witnesses do not have to attend Court and their lives are not disrupted. Importantly, it saves Court time, and the time of enforcement officers who are able to continue their role in other ways.

61. In this way, the Offender’s pleas of guilty, even though one was later than the other, have a meaningful utilitarian value. They also demonstrate, on his part, a willingness subjectively to facilitate the course of justice.

62. The issue here is what is the appropriate discount to be allocated to each of the pleas.

63. The plea to the Customs Act offence was entered at an early stage, whilst the proceedings were in the Local Court. In my view, a discount of 25% on any sentence that would otherwise be imposed is appropriate to reflect the utilitarian value of that plea and the Offender’s willingness to facilitate the course of justice.

64. As earlier indicated, the Offender was arrested on 16 June 2018, taken to the Campbelltown Police Station and charged.

65. A case conference was fixed for 30 August 2019. Three charges were certified by the Crown. One, contrary to s 101.6(1) of the Criminal Code of doing an act or acts in preparation for or planning of terrorist acts. The period specified was from 7 September 2014 to 7 February 2016. It is to be noted that ultimately the plea of guilty was to this offence, but for a period shorter in time by about eight months or so.

66. The Offender was charged with an attempt to export Tier 1 goods without requisite approval contrary to s 233BAA(5) of the Customs Act, which is the offence to which the Offender has pleaded guilty.

67. In addition, the Offender was charged with a third offence of preparing to engage in the commission of a foreign incursion offence contrary to s 119.1 of the Criminal Code.

68. The Offender offered to plead guilty to the foreign incursion offence in full satisfaction of his conduct. That offer was rejected. Negotiations occurred for some time. Part of the negotiations involved which facts would be included in an Agreed Statement. It was clear from the outset that the Offender did not accept that any of his conduct related to Australia or Syria, but he accepted that his conduct related to events which could occur in Bangladesh.

69. On 21 May 2020, at a time when the Offender was not represented by lawyers, he wrote to the Commonwealth Director of Public Prosecutions (“the CDPP”) offering to plead guilty to one offence contrary to s 101.6(1) of the Criminal Code on the basis that the facts related to conduct to be undertaken in Bangladesh. This letter responded to an indication given by the CDPP on 3 March 2020, that such a plea of guilty would be accepted by it (subject to instructions) in full satisfaction of the Offender’s conduct.

70. Thereafter, the CDPP formally offered that it would accept a plea of guilty to the terrorism offence with the foreign incursion offence to be taken into account pursuant to s 16BA of the Act on a schedule. That offer was rejected.

71. Ultimately, on 3 March 2021, the CDPP wrote to the Offender in response to informal communications between the Offender’s then lawyers and officers of the CDPP that the Offender would be willing to plead guilty to the terrorism offence in full satisfaction of the alleged conduct, with a provision for a disputed facts hearing to take place before the sentencing Judge on the basis that the location of the terrorist acts which the Offender was preparing and planning for was in dispute between the prosecution and the defence.

72. In this communication, the CDPP indicated that, if the Offender pleaded guilty to the terrorism offence, it would withdraw the foreign incursion offence. It would seek to maintain that the terrorism offence related to an act or acts in Australia, Bangladesh or both, but accepted that there would be a disputed facts hearing on sentence in relation to the location of the terrorist acts.

73. That was the offer which was accepted and of which the Court was informed in April 2021.

74. In considering each of the terrorism offence and the foreign incursion offence, it appears that the conduct of the Offender relied upon by the CDPP was largely the same.

75. The sequence of negotiations demonstrates that, at an early time in the proceedings, the Offender demonstrated a subjective willingness to facilitate the course of justice by offering to plead guilty to the foreign incursion offence on 10 July 2019. That subjective willingness continued throughout the negotiations. What the Offender made plain was that he was not willing to accept, or plead guilty to, any charge involving the undertaking of conduct in Australia. As the findings which I have made in these Remarks demonstrate, that cannot be regarded as an unreasonable position. The Offender’s offer of 21 May 2020 to plead guilty to the terrorism offence on the basis that his conduct occurred in Bangladesh is a further demonstration of his subjective willingness to facilitate the course of justice and, had it been accepted, would have resulted in the disposition of the matter much earlier than in fact occurred.

76. The emergence of a methodology for having a disputed facts hearing was contained in a letter of 21 September 2020 from the CDPP. But that confirmation was accompanied by the statement that the CDPP would not accept a plea offer that involved the withdrawal of either the foreign incursion offence or the terrorism offence. In other words, at that stage the CDPP was insisting on a plea to both of those offences, or else having one of the offences taken into account on a schedule.

77. Because the formal plea was not entered until very late in the proceedings, and whilst there was undoubtedly utilitarian value in that plea which might have been greater had there been an earlier plea, it is important to recognise that from an early time the Offender was subjectively willing to facilitate the course of justice by his offers to plead guilty to one offence on a factual basis which was not unreasonable. There has also been an obvious utilitarian value arising from the plea to the terrorism offence because a lengthy six week trial before a jury has been avoided.

78. In those circumstances, although the Offender submitted that a higher discount was merited, I am of the view that an appropriate discount for the plea of guilty to the terrorism offence is 20%.

Character Antecedents, Age, Means and Physical and Mental Condition of the Offender

79. The Offender was born in 1991 and so was 24 years old at the time the charged conduct concluded. He is now 30 years old.

80. It is of some relevance that the Offender was a relatively young man. Although, as earlier noted, he was not ill-educated or unintelligent. In this particular case, as the evidence of the Offender showed, his adoption or embracing of IS‑inspired extremist ideology was driven by a mixture of factors including how he himself had been treated as a young boy and as a teenager following upon the events of 11 September 2001, how he perceived the injustice of what was occurring in Bangladesh, and as a result of being reintegrated into a conservative form of Islam under the influence of those who attended the Campbelltown Youth Centre.

81. It is not suggested on behalf of the Offender that he has any diagnosed mental illness or psychiatric condition. His background and his family dynamics may also have contributed to the ease with which he readily accepted the extremist view of Islam, but I would not regard these as being the cause of, nor actively contributing to, his offending.

82. The evidence of the Offender, which he gave before me, was that he had significantly and substantially changed since his arrest and incarceration. He said that he no longer believed in the use of violence to effect societal change. He attributed his earlier views to being an immature and irrational person who was impatient to see change. He said that he now realises that violence is not the way to achieve that change and that there are other ways to advance political, religious or ideological views without violence. He summarised his present approach which differed markedly from his earlier attitude in the following answer, when he was asked about what he was now learning from studying the Quran:

“What I’m learning from that now is the method of control, controlling myself, being thankful to God, being thankful to people, to knowing that every life is valuable, and that killing one life is like killing the rest of humanity.”

83. He acknowledged in his evidence that he had hurt not just himself, but his Muslim community and Australia. He expressed his regret that he had contributed within the Muslim community to a continuing stereotype that Muslims were terrorists and violent people. But he recognised that this was damaging to the community and, in a broad sense, damaging to the community of Australia.

84. He said that he had consulted, although not recently, with the Muslim chaplain whilst in custody.

85. I observed the Offender and listened carefully to his evidence and to the cross-examination of him by the Crown. In particular, the Offender was challenged as to whether he still held a grievance about the ways in which Muslims were being treated both in Australia and internationally. He rejected the proposition that he held any grievance, but agreed that the treatment of Muslims was a continuing issue in the world, and said that he found it upsetting to see such treatment. He said that he did not reject Western or democratic ideals. The Offender also said that he would prefer to live in an Islamic country governed by Sharia law than to live in Australia. However, he did not accept that the consequence of such a desire was that he rejected the Australian system of government or its Constitution. As well, he said that he thought that there were aspects of Western democracy which were applicable under (or perhaps not incompatible with) Sharia law.

86. When asked, he gave this evidence in respect of the Islamic State:

“Q.   What about the ideals of Islamic State that you’ve given considerable evidence about? Do you reject those ideals now?

A.   After getting a bit of insight into what the Islamic State was involved in, and what they’ve done, yes, now I do reject the Islamic State ideals.

Q.   When you say ‘what they’ve done’, what are you referring to?

A.   In regards to all the pressure they had over minorities in the ways they treated their prisoners of war, and just the way that they would go around to implementing their law in the State.

Q.   What about their use of violence to advance their ideological belief system?

A.   Yes, I reject that as well. I no longer believe in that ideology.

Q.   If it were the case that you formed the opinion that Muslims as a group were being oppressed in Australia, would you regard it as permissible to engage in any form of violence?

A.   Not at all.

Q.   In protest of that?

A.   Not at all.”

87. I accept this evidence of the Offender. Of importance in coming to my conclusion, is that it is not suggested to the Offender that any conduct in which he has engaged since he has entered into custody has demonstrated to the contrary of this stated change of view. In other words, there is simply no objective material which would cause me to question or reject the Offender’s account of his rejection of IS ideals.

88. As well, there was nothing about the way in which the Offender gave evidence which would cause me to have any doubt about the truthfulness of his account.

89. Whilst the Offender has not yet had the opportunity to engage in any interventions, I am satisfied that he has renounced or else is well on the way to renouncing the extremist IS ideology.

90. Dr Seidler, an expert psychologist, formulated the view, as at the time of his offending and as at the time of her report, that the Offender’s risk of reoffending in the area of violent extremism was in the moderate to high range.

87. Dr Seidler’s opinion about this risk is based on an assessment tool which, although widely used, is still in its infancy, and any prediction which it makes is based on a limited sample of individuals. I also note that Dr Seidler says that the risk assessment is likely to further reduce with time and exposure to protective influences such as religious guidance. Any intervention which the offender undertakes whilst in custody will also be likely to assist in the reduction of this risk profile.

88. Taking all of these matters into account, including in particular the evidence which the Offender gave, I am satisfied that whilst there is a moderate risk of him reoffending, the Offender’s prospects of rehabilitation are reasonable.

89. As earlier indicated, the Offender has no previous criminal convictions in Australia but, having regard to the nature of the terrorism offence, that is of little weight.

Conditions of Incarceration

94. The Court has been provided with evidence about the Offender’s custodial conditions. At the moment, and except for a period of about two months after his arrest, the Offender has been incarcerated in the High Risk Management Correctional Centre (“HRMCC”).

95. He is currently classified “AAU” i.e. an unsentenced inmate of national security interest.

96. At the HRMCC, together with other inmates, the Offender is managed under a model of staged progression with two stages providing for inmates to address their offending behaviours. There are two primary stages, Area 1 and Area 2, with Area 2 itself consisting of two levels. The Offender can progress or regress through the stages and levels based on regular assessment by the Inmate Review Panel, which assesses an inmate’s behaviour, including attempts to influence or coerce others, start interactions, participation and disengagement from extreme violent ideology. The Offender is presently housed in Area 1 where he has minimal association with other inmates and is allowed out of his cell for two hours each day for exercise in the open air unless otherwise confined to his cell by reason of custodial offences or HRMCC lockdown. Lockdowns ordered by HRMCC staff seem to occur about once a week. Until the Offender is moved to Area 2, he does not have access to education or other interventions.

97. I am satisfied that on the evidence the conditions of incarceration for this Offender are considerably more onerous than for the typical prisoner. I am also satisfied that the conditions in the HRMCC are also more onerous than in many other parts of the Corrective Services facilities. I will take into account these more onerous conditions of custody.

98. As well, there was evidence about the potential effects of COVID-19 in the prison system, in particular the Delta variant of that virus. I have had regard to that evidence and the effect it may have on the Offender. One effect which it has had in the more recent past is that the Offender has not been able to receive personal visits from his family.

Deterrence

99. General and specific deterrence are required to be taken into account in this sentencing exercise both by the statute and by the principles established by common law. The principal sentence to be imposed is for the terrorism offence. Any punishment for that offence must be appropriate in all of the circumstances and must have regard to the particular nature of such an offence. Included in the sentencing principles, is the protection of the community. That protection includes incapacitation i.e. preventing the Offender from carrying out the terrorism act or acts which was his ultimate contemplation.

100. Whilst I am satisfied on the balance that the Offender has renounced (or is well on the way to renouncing) his extremist ideologies, any sentence which I impose must address the need to specifically deter the Offender from again engaging in the conduct which has led to his plea of guilty and conviction of a terrorism offence. I have kept all of those matters in mind.

Discernment

101. It is obviously important in sentencing the Offender in respect of a Commonwealth offence that I have regard to other sentences around Australia for similar offences so that I can be clear that any sentence I impose is not inconsistent with sentences which have been imposed.

102. The Crown has provided reference to a number of other cases which it has submitted are of relevance. I have taken those cases, and others to which the Offender has drawn attention, into account. None of the cases are the same as this one, but they do provide guidance as to what the courts in those cases determined to be an appropriate sentence.

103. The terrorism offence is a serious offence. The Offender embraced extremist Islamic views, and was attracted to the ways of IS. The Offender held strong views about what was occurring in Bangladesh, and held strong views about the fact that Muslims, particularly conservative Muslims, were being discriminated against by the Government of Bangladesh, and also by adherents of other religions.

104. The Offender undertook conduct which was designed to facilitate his travel to Bangladesh, there to engage in hostile and violent acts against the Government of Bangladesh and those who opposed IS ideals. Compared with other offences against the same provisions, I am satisfied that the Offender’s conduct was below the mid-range. He had not made any real arrangements for what was to happen when he arrived in Bangladesh. He had no defined pathway by which he could be confident that he could join in with those opposing the Bangladesh Government, and had not taken any steps to arm himself or provide access to arms to enable him to be an effective participant in any IS or other hostile activity in Bangladesh.

105. I am satisfied that he has reasonable prospects of rehabilitation and that he has abandoned (or is well on the way to) his extremist ideological views.

106. General and specific deterrence are important elements of any sentence which I impose, and certainly, in respect of this terrorism offence, the principle of protection of the community must be given significant weight. The fact that the community which is to be protected is in Bangladesh and not in Australia is of no moment. The protection of the foreign community is just as important as the protection of the Australian community.

107. The offending took place over a relatively short period, and I note that after being stopped at the airport and before his arrest, a period of over two years, it was not suggested by the Crown that there were any acts which the Offender continued to take in preparation for any terrorism offence. It seems clear that, having been stopped at the airport, the Offender’s criminal conduct ceased.

108. I also take into account that it is now about five and a half years since the conduct for which the Offender is being sentenced occurred. The Offender has matured considerably in that time.

109. The material which the Offender had in his possession and which he had read and was taking to Bangladesh in breach of the Customs Act, has also been drawn to my attention with respect to the terrorism offence as indicating the ideology which had been adopted by the Offender.

110. In order to avoid any double counting, it is appropriate that I proceed by way of an aggregate sentence for the two offences. Addressing principles of totality and concurrency in that way means that I can be confident that the Offender is being adequately punished for the entirety of his conduct.

Indicative Sentences

111. In formulating the indicative sentences, it is necessary to take into account the discounts to which I have referred for the early pleas of guilty.

112. The Customs Act offence carries a maximum penalty of 5 years imprisonment. This is a guideline to which I have regard. I am satisfied that it was a low range offence and that the Offender is entitled to a 25% discount on any sentence which might otherwise have been imposed. In my view, in respect of the Customs Act offence, after the application of that discount for a plea of guilty, a sentence of 9 months imprisonment is appropriate.

113. For the terrorism offence, namely a breach of s 101.6(1) of the Criminal Code of doing an act in preparation for a terrorist act, which was an offence below the mid-range and after applying a 20% discount, I indicate a sentence of 5 years.

Sentence

114. In my view, an appropriate aggregate sentence to be imposed is 5 years and 4 months. This sentence will commence on 16 June 2018. In accordance with the statute, I fix a non-parole period of 4 years, which will expire on 15 June 2022.

Explanation

115. The provisions of s 16F of the Act require me to explain the effect of this sentence. You are sentenced to imprisonment for a total term of 5 years and 4 months of which you must spend at least 4 years in prison before being released on parole. Whether you are released on parole is a matter to be determined by the Attorney-General of the Commonwealth of Australia having regard to your progress whilst in custody.

116. I am also obliged to warn you that pursuant to s 105A.23 of the Criminal Code, an application may be made for a continuing detention order requiring that you be detained in a prison after the end of your sentence for the terrorism offence.

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Agreed Facts on Sentence (902238, pdf)

Decision last updated: 13 October 2021