R v Atai (No 2)

[2018] NSWSC 1797

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Atai (No. 2) [2018] NSWSC 1797

Hearing dates:

19 September 2018, 20 September 2018, 21 September 2018, 15 November 2018

Date of orders:

23 November 2018

Decision date:

23 November 2018

Jurisdiction:

Common Law

Before:

Johnson J

Decision:

The Offender, Milad Atai, is sentenced as follows:

 

1. For the offence under s.102.6(1) Criminal Code (Cth) in Count 3, sentenced to imprisonment for nine years commencing on 22 March 2016.

 

2. For the offence under s.102.6(1) Criminal Code (Cth) in Count 2, sentenced to imprisonment for 10 years and six months commencing on 22 March 2019.

 

3. For the offence under ss.11.2(1) and 101.1(1) Criminal Code (Cth), and taking into account the offence under s.102.3(1) Criminal Code (Cth) for the purpose of s.16BA Crimes Act 1914 (Cth), sentenced to imprisonment for 30 years commencing on 22 March 2024 and expiring on 21 March 2054.

4. In accordance with s.19AG Crimes Act 1914 (Cth), a single non-parole period is fixed of 28 years and six months commencing on 22 March 2016 and expiring on 21 September 2044.

Catchwords:

CRIMINAL LAW - sentence - guilty pleas to three offences - aiding and abetting commission of terrorist act - fatal shooting of Curtis Cheng outside New South Wales Police Headquarters - two offences of intentionally collecting funds for Islamic State knowing it to be a terrorist organisation - further offence of being a member of a terrorist organisation (Islamic State) taken into account on sentence - Offender radicalised supporter of violent jihad - objective gravity of offences - tentative expression of remorse at sentencing hearing later withdrawn by Offender - assessment of prospects of rehabilitation and risk of reoffending - factors relevant to sentence - importance of denunciation, specific and general deterrence - substantial determinate sentences imposed

Legislation Cited:

Crimes (Administration of Sentences) Regulation 2014
Crimes Act 1914 (Cth)
Criminal Code (Cth)
Firearms Act 1996 (NSW)

Cases Cited:

Alvares v R (2011) 209 A Crim R 297; [2011] NSWCCA 33
Director of Public Prosecutions (Cth) v Besim [2017] VSCA 158
Director of Public Prosecutions (Cth) v Besim and Anor (No. 3) (2017) 52 VR 303; [2017] VSCA 180
Director of Public Prosecutions (Cth) v Fattal [2013] VSCA 276
Director of Public Prosecutions (Cth) v MHK (A Pseudonym) (No 1) (2017) 52 VR 272; [2017] VSCA 157
Elomar and Ors v R (2014) 316 ALR 206; [2014] NSWCCA 303
Elzahed and Ors v Commonwealth of Australia and State of New South Wales [2016] NSWDC 353
Elzahed and Ors v Commonwealth of Australia and State of New South Wales [2017] NSWDC 160
Elzahed v State of New South Wales [2018] NSWCA 103
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
Georgopoulos v R [2010] NSWCCA 246
Giac v R [2008] NSWCCA 280
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Liu v R [2018] NSWCCA 70
Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360
Mun v R [2015] NSWCCA 234
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v AB (2011) 59 MVR 356; [2011] NSWCCA 229
R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186
R v Alameddine (No. 3) [2018] NSWSC 681
R v Al-Kutobi; R v Kiad [2016] NSWSC 1760
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Dennison [2011] NSWCCA 114
R v Elomar and Ors (2010) 264 ALR 759; [2010] NSWSC 10
R v Fattal [2011] VSC 681
R v Gray [1977] VR 225
R v Kahar (2016) 1 WLR 3156; [2016] EWCA 568
R v Khaja [2018] NSWSC 238
R v Khalid and Ors [2017] NSWSC 1365
R v Lamella [2014] NSWCCA 122
R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 69
R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v Stambolis (2006) 160 A Crim 510; [2006] NSWCCA 56
R v Whyte (2004) 7 VR 397; [2004] VSCA 5
R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222
Tepania v R [2018] NSWCCA 247
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
ZA v R [2017] NSWCCA 132

Texts Cited:

Freiberg, “Fox and Freiberg’s Sentencing: State and Federal Law in Victoria”, Lawbook Co, 2014

 Shapland, “Personal Mitigation and Assumptions About Offending and Desistance” published in Roberts (ed), “Mitigation and Aggravation at Sentencing”, Cambridge University Press, 2011

Category:

Sentence

Parties:

Regina (Crown)
Milad Atai (Offender)

Representation:

Counsel:
Mr PR McGuire SC; Mr Y Shariff (Crown)
Mr G Smith SC (Offender)

  Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
McGirr Lawyers (Offender)

File Number(s):

2016/128965

Publication restriction:

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REMARKS ON SENTENCE

1. JOHNSON J: Once again, the Court is called upon to sentence an offender for grave crimes associated with the killing of Curtis Cheng, a peaceful and innocent civilian, in a terrorist act at Parramatta on 2 October 2015. The Offender, Milad Atai, was then an active member and supporter of the criminal terrorist organisation, Islamic State. His offences extend to the organisation of funding and support for Islamic State in Syria.

The Offences

2. The Offender appears for sentence with respect to the following offences, to which he has pleaded guilty:

1. Count 1 - Between about 6 August 2015 and 2 October 2015, at Sydney and elsewhere, aiding, abetting, counselling or procuring the commission of an offence by another person, namely engagement in a terrorist act by Farhad Jabar Khalil Mohammad (“Farhad”) contrary to ss.11.2 and 101.1 Criminal Code (Cth), an offence punishable by life imprisonment.

2. Count 2 - Between about 1 September 2015 and 1 October 2015, at Sydney and elsewhere, intentionally collecting funds for or on behalf of an organisation, Islamic State, knowing that the organisation was a terrorist organisation, contrary to s.102.6(1) Criminal Code (Cth), an offence punishable by imprisonment for 25 years.

3. Count 3 - Between 29 December 2015 and 22 March 2016 at Sydney and elsewhere, intentionally collecting funds for or on behalf of an organisation, Islamic State, knowing that the organisation was a terrorist organisation, contrary to s.102.6(1) Criminal Code (Cth), an offence punishable by imprisonment for 25 years.

3. The Offender applies under s.16BA Crimes Act 1914 (Cth) that the Court take into account on sentence for Count 1, a further offence of, between about 6 August 2015 and 22 March 2016 at Sydney and elsewhere, intentionally being a member of a terrorist organisation, Islamic State, knowing that the organisation was a terrorist organisation contrary to s.102.3(1) Criminal Code (Cth), an offence which (if prosecuted separately) is punishable by a maximum penalty of 10 years’ imprisonment.

The Sentencing Hearing

4. The Offender pleaded guilty to these charges on 18 May 2018. The sentencing hearing proceeded on 19-21 September 2018, at the conclusion of which, the Court remanded the Offender for sentence today. In circumstances to be described later in these remarks, the Court granted the Crown leave to reopen its case and the Court sat again on 15 November 2018, when further documentary evidence was tendered for the Crown and the Offender with counsel addressing on issues arising from that evidence.

The Documentary and Oral Evidence

5. At the sentencing hearing between 19-21 September 2018, the Crown tendered a folder (Exhibit A) which contained a number of documents including a Statement of Facts and several affidavits which related to the Offender’s custodial status and programs available within the correctional system. An affidavit of Senior Assistant Superintendent Geoffrey Poulsen sworn 5 September 2018 concerned the Offender’s custodial conditions at the High Risk Management Correctional Centre (“HRMCC”) within the Goulburn Correctional Complex. The affidavit of Stephanie Scott-Smith affirmed 21 August 2018 concerned the structure and operation of the Proactive Integrated Support Model (“PRISM”) program of Corrective Services NSW in relation to which Ms Scott-Smith is the senior psychologist. The affidavit of Senior Correctional Officer David Smithson sworn 7 September 2018 related to an event in custody concerning the Offender on 28 April 2016. Further reference will be made to these affidavits later in these sentencing remarks.

6. Senior Assistant Superintendent Poulsen was cross-examined on his affidavit (T15-28).

7. The Crown tendered, as well, USB sticks containing surveillance footage and CCTV footage of certain events between 24 September 2015 and 2 October 2015 which concerned the role and activities of the Offender in the offences (Exhibits B, C and D).

8. As will be seen, the Offender gave evidence at the sentencing hearing and raised, amongst other things, the execution of a search warrant by police at his family home on 18 September 2014 (as part of Operation Appleby) as an incident which played a part in his radicalisation. In relation to this event, the Crown tendered a number of statements and a USB stick containing video footage of the execution of the search warrant (Exhibits E, F, G, H, J and K).

9. Other items were tendered by the Crown concerning the Offender’s electronic communications with others in 2014 and 2015 and associated documents which bore upon the depth of his extremist jihadist beliefs at those times (Exhibits L, N and O).

10. A victim impact statement (Exhibit M) was made to the Court by Mrs Selina Cheng, the widow of Curtis Cheng, on behalf of the Cheng family. I will return to this statement later in these sentencing remarks.

11. Senior Counsel for the Offender tendered a number of documents in the defence case on sentence (Exhibits 1, 2 and 3) which included the report of Dr Richard Furst, forensic psychiatrist, dated 4 September 2018 concerning the Offender, a letter dated 17 September 2018 from the Offender’s wife, Cody Clarke (Amira Atai) and a letter from Mohammad Nader Azamy, President of the Afghan Community Support Association with respect to the Offender.

12. The Offender gave extensive evidence over two days (T39-197) in which a wide range of matters were advanced and tested in cross-examination by the Crown. Aspects of the Offender’s evidence will be referred to at different points in these sentencing remarks.

Written and Oral Submissions

13. Both the Crown and Senior Counsel for the Offender had furnished written submissions in advance of the sentencing hearing and these submissions were supplemented orally on 21 September 2018 (T199-237) by reference to the substantial oral evidence which had been given at the sentencing hearing.

14. The Court granted leave to the parties to furnish further written submissions on the discrete question of the timing of and discount for the Offender’s guilty pleas, and these submissions were furnished to the Court on 28 September 2018 (MFIs 3 and 4).

The Resumed Hearing on 15 November 2018

15. As a result of two letters dated 14 October 2018 sent by the Offender to the Australian Federal Police (“AFP”) and the Senior Counsel appearing for the Crown, the Court granted leave (without objection by the Offender) for the reopening of evidence and the Court sat again on 15 November 2018 for that purpose.

16. At the resumed hearing, the letters of 14 October 2018 directed to the AFP (Exhibit P) and the Senior Counsel for the Crown (Exhibit Q) were tendered by the Crown together with the affidavit of Yoshitha Alles sworn 31 October 2018 (Exhibit R). Tendered for the Offender were certain Department of Corrective Services NSW case notes concerning the Offender for the period 3 July 2018 to 30 October 2018 (Exhibit 4) together with a list of telephone calls made by the Offender between 17 September 2018 and 14 October 2018 (Exhibit 5). Counsel addressed by reference to this evidence concerning issues of contrition and remorse, rehabilitation and deradicalisation, general and specific deterrence, protection of the community and the veracity and truthfulness of the Offender with the Crown utilising a schedule (MFI5) for this purpose.

17. I will consider this evidence and these submissions at a later point in these sentencing remarks when addressing aspects of the Offender’s subjective case.

Disputed Factual Issues

18. The Offender’s pleas of guilty, of course, constitute admissions of the elements of those offences: GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at 211 [30]. Likewise, the Offender has admitted the offence to be taken into account on sentence under s.16BA Crimes Act 1914 (Cth). Any facts beyond those necessarily involved as elements of these offences must be proved by evidence admitted formally or informally: GAS v The Queen at 211 [30].

19. In a number of areas, there was a dispute between the parties as to what findings the Court should make for the purpose of sentence, by reference to the evidentiary material. Findings will be made in areas of controversy with respect to the role and involvement of the Offender in the offences and also aspects of his subjective circumstances including remorse, contrition and any change in his attitude from the radicalised and extreme pro-Islamic State views which clearly existed at the time of the offences.

20. In resolving disputed issues of fact, the Court may only make a finding of fact which operates adversely to the interests of the Offender if satisfied beyond reasonable doubt of that fact. On the other hand, if there are circumstances which the Court proposes to take into account in favour of the Offender, it is enough if those matters are proved by the Offender on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 281 [27]-[28]; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at 69-71 [64]-[66].

21. It is appropriate to observe, however, that some disputed issues of fact may not be capable of resolution in a way that goes either to increase or decrease the sentence that is to be imposed. There may be issues which the material available to the Court will not allow to be resolved in that way: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at 636 [19]. The Court will seek to make findings by reference to material which is relevant and known to the Court: s.16A(2) Crimes Act 1914 (Cth); Weininger v The Queen at 635-637 [17]-[21]; Filippou v The Queen at 69-73 [61]-[72].

22. It must be recognised that not every matter urged on a sentencing Judge has to be, or can be, fitted into categories of aggravating or mitigating circumstances. The Court may be unpersuaded as to matters urged in mitigation or in aggravation. Of course, the absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation: Weininger v The Queen at 638 [24].

23. As will be seen, these principles have some bearing with respect to several areas where the parties were in dispute as to the appropriate findings of fact to be made.

Scope of Sentencing Remarks

24. These sentencing remarks relate only to the Offender. Raban Alou (“Alou”) has already been sentenced by the Court for his offence (Rv Alou (No. 4) (2018) 330 FLR 402; [2018] NSWSC 221) and Talal Alameddine (“Alameddine”) has been sentenced for his offences (R v Alameddine (No. 3) [2018] NSWSC 681). Another person has been charged with a related offence which is still before the Court. I will not refer to that person by name in these sentencing remarks. The findings and conclusions reached in these remarks arise solely from the sentencing hearing concerning the Offender and the evidence adduced at that hearing.

Facts of the Offences

25. What follows is drawn from the Statement of Facts tendered by the Crown (Exhibit A, Tab 3), which is substantially not in dispute, together with findings made by reference to the Offender’s evidence and other documentary evidence tendered at the sentencing hearing.

The Offender’s Background

26. The Offender was born in Iran in January 1996. His parents were both of Afghan ethnicity being of the Sunni Muslim faith. The Offender has seven siblings, including four older brothers, two older sisters and a younger sister. The Offender’s father died in about 1998 from suspected heart disease. The Offender’s mother, and her children (including the Offender), migrated to Australia in 2006.

27. The Offender went to school at Merrylands Public School and Parramatta High School, gaining his Higher School Certificate in 2014.

28. The Offender married Cody Clarke (Amira Atai) in an Islamic ceremony in July 2015 and there is a two-year old son of the relationship.

29. At the time of the commission of the terrorist attack on 2 October 2015, the Offender was 19 years old.

30. The Offender has no prior criminal history.

31. Both the Offender’s evidence and the report of Dr Furst indicate that he was affected by the arrest and charging in 2010 of his elder brother, Masood Atai, for an offence of murder, for which his brother was convicted (Ataiv R [2014] NSWCCA 210).

Events on 1 and 2 October 2015

32. At about 4.30 pm on 2 October 2015, Farhad (then 15 years old) walked up behind Mr Cheng, who was leaving the New South Wales Police Headquarters in Parramatta after completing work as an accountant. Farhad shot Mr Cheng in the back of the head with a .38 special calibre Smith & Wesson model British service revolver (“revolver”). Mr Cheng died instantly. Farhad then exchanged gunfire with New South Wales Police Special Constables and was shot dead.

33. Found inside a pocket of Farhad’s clothing was a note written by him that made clear that the act of killing Mr Cheng was a religiously inspired act of violence carried out in support of Islamic State. The note stated:

“Oh you disbelievers!!!

Know your security means nothing to us. Know your weapons are nothing compared to what we have, our Lord, the all powerful and the all encompassing.

Know that you all are being watched 24/7, while you are asleep, awake, planning But soon by the will of God the Exalted, your nights will turn into nightmares, your days into hell and you planning is nothing to us!!

By the will of Allah have come today to put terror in your hearts. And soon the mujahideen will do the same, by the will of Allah

Dawlatul Islam

Baqiya

Bi'dnillah.”

34. The loaded revolver used to commit the terrorist attack was given to Farhad by Alou (then 19 years old) at the Parramatta Mosque less than one hour before the attack.

35. The weapon was sourced by Alou from Alameddine earlier in the afternoon of 2 October 2015. Alou later told the Offender that the weapon was supplied by Alameddine for free (T60-61).

36. On 1 October 2015, Shadi Mohammad (“Shadi”) (Farhad’s older sister) had departed Australia for Syria. As will be seen, the Offender had provided funding and assistance in September 2015 for Shadi (who was also a radicalised supporter of Islamic State) to leave Australia utilising the Offender’s contact in the Middle East, Ahmad Merhi (“Merhi”), who was involved in Islamic State activities at that time as the Offender well knew.

37. Amongst other things, the Offender’s conduct in this respect gave rise to the offence contained in Count 2. The Offender had provided telephone numbers to Shadi prior to 22 September 2015 so that she was in a position to communicate with Merhi for the purpose of her planned journey which was intended to assist and support Islamic State activities in Syria. The Offender supplied funds as well which assisted Shadi’s journey to Syria. Shadi was killed in 2016 in an American air strike on Islamic State facilities in Syria.

38. What led the Offender to commit the offences for which he is to be sentenced?

The Offender’s Extremist Beliefs in 2014 and 2015

39. By the time of the offences in 2015 and 2016, the Offender held certain beliefs relating to the interpretation of the Islamic religion and support for the terrorist organisation, Islamic State. In particular, he believed that Islam throughout the world was under attack and that there was a religious obligation to respond to that attack by means of violent jihad.

40. The Offender said that he was a supporter of Islamic State before September 2014 (T127). At some point after Abu Bakr al-Baghdadi “became the Caliph”, the Offender said that he swore an oath of allegiance (“bay’ah”) to Islamic State (T127). In this way, he became a member of a terrorist organisation so as to constitute the offence to be taken into account on sentence for Count 1.

39. The Offender was also part of an online “WhatsApp” closed chat group where he and others shared views and discussed ideas supportive of Salafi Islam and Islamic State. The chat group was called “The Bricks” (“Bricks Forum”) and the profile picture of this group was an Islamic State flag.

Execution of Search Warrant at the Offender’s Family Home on 18 September 2014 as Part of Operation Appleby

42. As at 18 September 2014, the Offender was living with members of his family at a home unit in Northmead. After 4.30 am that day, police executed search warrants on a variety of premises, including the Offender’s premises, as part of Operation Appleby, an investigation into terrorist activities.

43. Evidence was adduced at the sentencing hearing concerning the execution of the search warrant on 18 September 2014. This included video footage of events in the unit at that time (Exhibit F) together with statements of police officers concerning the execution of the search warrant with those officers not being required for cross-examination (Exhibits E, G, H and J).

44. It appears that forced entry to the unit was obtained and that the Offender was physically detained for a short period with his hands being bound. Given the subject matter surrounding the execution of the search warrant, a cautious approach by investigating police was understandable. What the video footage reveals is that the Offender was present with his hands free in the unit as police explained what was happening to his family members soon after they had entered the premises. No complaint was made by the Offender at that time as to what had occurred nor did the Offender appear to be disturbed or upset.

45. At their request, the Offender and his mother were allowed to move to a separate room for the purpose of morning prayers with police facilitating that process. This is not consistent with wrongful or irregular handling of the execution of the search warrant by police.

46. To the extent that the Offender sought to utilise the execution of the search warrant on 18 September 2014 as a factor which contributed to his radicalisation, it is clear that he was already radicalised significantly at that time. In evidence, the Offender said that he “hated” the police before the execution of the search warrant on 18 September 2014, but he “hated them even more” after that day (T68-69). He said that he was a supporter of Islamic State before 18 September 2014 (T127). The evidence discloses that the Offender was by then good friends with Alou and had been associating with a number of other persons, including Omarjan Azari, as at 16 September 2014 (Exhibit E). The Offender said in evidence that all of the “Appleby boys” were of the same mind as himself concerning the permissibility of killing non-Muslims (T185).

47. The Offender’s mobile telephone was seized on 18 September 2014. Upon examination (Exhibit K), it was found to contain several Islamic State images and other extremist material including some sourced to the now deceased Anwar al-Awlaki, a radical Islamic lecturer whose work has been popular with al-Qaeda and supporters of Islamic State (Exhibit L, page 67).

48. The Offender is not assisted by the events of 18 September 2014. It is clear that there was a proper basis for a search warrant to be executed at his premises given his associations and his own admission in evidence that he was already a radicalised supporter of Islamic State at that time.

49. The investigation by police of a number of persons, which included the execution of search warrants as part of Operation Appleby on 18 September 2014, was an understandable response to suspected terrorism in the community. To the extent that the Offender sought to rely at the sentencing hearing upon things he had heard about the execution of a search warrant on the same day at the premises occupied by Hamdi Alqudsi (“Alqudsi”) and his family as part of Operation Appleby, it was pointed out at the sentencing hearing that civil proceedings brought by Alqudsi and his wife arising from those events were unsuccessful: Elzahed and Ors v Commonwealth of Australia and State of New South Wales [2016] NSWDC 353; Elzahed and Ors v Commonwealth of Australia and State of New South Wales [2017] NSWDC 160 and Elzahed v State of New South Wales [2018] NSWCA 103.

50. The Offender’s evidence indicates that he and others who were the subject of raids as part of Operation Appleby on 18 September 2014 spoke to each other thereafter in ways which reinforced their views. Far from being a source of legitimate grievance for the Offender, it might be thought that he would have thought twice about his continuing support for Islamic State given the adverse consequences that could flow for his family as a result of events such as the execution of the search warrant on 18 September 2014.

51. The Offender continues to hold a grievance with respect to the events of 18 September 2014, asserting in evidence that his family home had been “raided for no reason” (T190). The fact that he continues to hold this view now is, in itself, not consistent with development of any real insight.

The Offender’s Association with Alou and Farhad

52. The Offender had known Alou since 2011-2012 and they were good friends in 2015 (T48).

53. The Offender knew Farhad’s family. He knew Farhad’s elder brother, Farshad, and had played soccer with him (T51). The Offender had been to Farhad’s home at North Parramatta and knew his parents. Farhad lived with his parents and also Farshad and Shadi (T54-55).

54. The Offender became aware, in 2014, that Farhad (then aged 14 years) had an interest in the Islamic religion and he would see him at the Parramatta Mosque (T54). The Offender described Farhad as “a hard core supporter of Islamic State” (T75). He said that he had seen Farhad on Facebook “preaching” or “debating” with others and supporting Islamic State, although Farhad was not a member of the Bricks Forum (T75-76). Because of Farhad’s beliefs, the Offender was sure that he would “use a gun on someone” (T75).

Events from June 2015

55. On 26 June 2015, Alou posted to WhatsApp the following message on the Bricks Forum:

“Beheading in France, 25 dead in suicide bomb by IS in shia Kuwait mosque and 37 dead at Tunisia beach.

Its going off

Lol”

56. On 27 June 2015, the Offender posted to WhatsApp on the Bricks Forum pictures of Australian Defence Force personnel disembarking from a bus. The Offender said in evidence that he took the photographs when on the way back from visiting his brother in prison (T88-89). He said that he made derogatory comments about the service personnel as a joke for his companions in the Bricks Forum (T89). In response to the pictures, Alou posted:

“Omg. May Allah curse them all and destroy them to pieces”.

57. At around 3.22 pm on 28 June 2015, Mohammed Atai (the Offender’s brother) posted to the Bricks Forum a picture of what appeared to be Muslim fighters. At 3.31 pm, another member of the Bricks Forum posted:

“Those whom Allah (tabaraka wa ta 'ala) has chosen, selected, and bestowed His grace upon so that they establish His religion and impose His rule, disassociate from the kujfar [unbelievers or infidels], break off from them, and announce animosity and hatred towards them. They don't ally with them and don't compromise for them. They don't live amongst them and sit in their shades. They don't appease them even if they are their family, tribe, or people.

This is the condition of those to establish Allah's Shariah. They don't change no matter what disturbs them in their long path of trials and tribulations.”

58. At around 4.32 pm on 30 June 2015, another member of the Bricks Forum posted to WhatsApp a copy of an AFP Eid dinner invitation. Members of the Bricks Forum posted comments such as “look at these dogs” and “May allah curse every afp ... out there”. One person commented “That night We will see the apostates” and “Taking the enemies of Allah as allies”.

59. On 1 July 2015, a member of the Bricks Forum posted to WhatsApp a picture of a man dressed in Islamic dress with the caption “Sometimes you gotta leave your loved ones for the one you love”.

60. On 7 August 2015, the Offender sought from another member of the Bricks Forum the contact details of Abu Masoo Jibroo (a reference to Ahmad Musa Jibril). The person replied with an SMS address book contact for Sheikh Ahmad Musa Jibril and a USA telephone number. Sheikh Ahmad Musa Jibril was a radical preacher who was supportive of Islamic State (Exhibit L, page 52).

Alou and the Offender Seek an Islamic State Flag

61. On 14 August 2015, Alou called a person and asked him for the number of X4, who owned a printing business.

62. Later that day, that person sent Alou the telephone number for X4.

63. On 21 August 2015, Alou called X4 and asked whether he could see him.

64. On 26 August 2015, Alou and the Offender went to X4's home and had a meeting with him. In the presence of the Offender, Alou asked X4 to make a Dawlah (Islamic State) flag. X4 said that he did not wish to make the flag but did not want to be rude so he asked Alou to bring material back. X4 said he did not believe that Alou would return with the material.

65. On 1 September 2015, Alou purchased black material from a gift store in Lakemba. Later that day, Alou called X4 and said to him “I swear praise be to God. Um brother I'm gonna come past and bring my jumper, bro, so that you can fix it up for me. Is that all right? Tonight?”. X4 responded “okay. No worries. What time are you gunna come?”. Alou told X4 that he would call when he was outside.

66. Before arriving at X4's house, Alou conducted counter-surveillance. Alou sent X4 a text message telling him that he was outside. Alou gave X4 the black material. X4 described the material as “black and square” and said he just “chucked it aside in the garage” as he “never intended on using it”.

Meetings in Parramatta Park in August and September 2015

67. On 28 August 2015, Alou, the Offender, Hozan Alou (Alou’s brother) and Farshad attended Lake Parramatta Park and ate a meal together. After eating, the group walked to the lake.

68. Once at the side of the lake, they placed a cable tie around Hozan Alou's hands and the Offender led Hozan Alou up the hill, effectively handcuffed. Alou and Farshad filmed this activity on their mobile telephones. When they returned to their parked cars, they cut the cable tie off Hozan Alou's wrists and departed the area. The Offender said in evidence that this was meant to be “a joke” where he and the others mimicked the activities of Islamic State in the Middle East (T63-64). It is difficult to characterise this event as humorous given the usually grim conduct of Islamic State supporters who tied and marched their captives towards punishment or death.

69. At around 2.20 pm on 4 September 2015, Alou, the Offender, Hozan Alou, Farshad and another person attended Parramatta Park. The group sat around a picnic table before the Offender and Farshad walked to Farshad’s vehicle parked nearby.

70. At around 1.30 pm on 11 September 2015, the Offender, Alou, Hozan Alou, Farshad, Farhad and two others met at Lake Parramatta Park. This was the only known physical contact between Alou, the Offender and Farhad other than at the Parramatta Mosque.

Meetings at the Parramatta Mosque in Mid-September 2015

71. On the morning of 15 September 2015, Farhad arrived at the Parramatta Mosque carrying a black sports bag and a Nike backpack. Once at the Mosque, Farhad put the bag into the top left alcove of the prayer hall. Soon after, two police officers entered the Mosque and spoke briefly to Farhad. Thereafter, Farhad left the Mosque carrying his Nike backpack but leaving behind the black sports bag.

72. On the afternoon of 18 September 2015, Alou entered the Parramatta Mosque without carrying any bags. After praying, Alou talked to Farshad and another person. At about 3.45 pm, Alou left the Mosque carrying the black sports bag that had been left behind by Farhad on 15 September 2015.

73. On the afternoon of 20 September 2015, Alou removed the black sports bag from the boot of his vehicle and placed it on the ground. About one minute later, Alou placed the black sports bag back into the boot.

The Offender Puts Shadi in Contact with Merhi in the Middle East

74. In the early afternoon of 21 September 2015, Alou, the Offender and Farhad met at the Parramatta Mosque in an off-camera area between the female and male sections of the prayer hall. After about 10 minutes, they dispersed at the same time - the Offender via the female entry to the right and to the female bathrooms, Alou via the female entry to the left off-camera view, and Farhad back into the male prayer hall.

75. Merhi was an Islamic State contact of the Offender who, in September 2015, was located in the Middle East (T138). By 21 September 2015, the Offender was aware of Shadi’s plan to travel to Syria to join Islamic State in that country. I am satisfied that the Offender provided Merhi’s contact details to Farhad at the Parramatta Mosque on 21 September 2015 so that the details could be passed on to Shadi. On 22 September 2015, Shadi made telephone contact with Merhi to advance her plans to travel to Syria (T56-57, 177-179, Exhibit O).

76. Not only was the Offender providing support to Alou in his efforts to obtain a firearm for Farhad to commit a terrorist act (relevant to Count 1), but he was also playing a significant organisational role in the planned journey by Shadi to join Islamic State fighters in Syria (relevant to Count 2). Apart from the provision of financial support, the Offender also advised Shadi about the route to take to ensure she made it to Syria and about her manner of dress and appearance to reduce the prospect of her being stopped (T101-102). The Offender spoke to Shadi after she had arrived in Syria to ensure she made it there safely (T102).

77. The Offender said in evidence that he knew that Shadi wished to link up with Islamic State and he learned later that she had found a husband and that “they got droned” (killed in an air strike in Syria) (T98).

Contact with X2 and X3 in September 2015 to Obtain a Firearm

78. The Offender said that he was aware from early September 2015 that Alou was seeking a firearm for use by Farhad in a terrorist act (T74, 113-114). The Offender expected that Farhad would use the firearm to kill someone and he agreed that it was always part of the plan that Farhad himself would die during the commission of a terrorist act (T114).

79. On 21 September 2015, Alou called an associate and asked for the telephone number of X3.

80. Soon after, Alou called X3 and asked whether he could meet him in Greenacre that evening and they agreed to do so.

81. In the early evening on 21 September 2015, Alou called X3 to ask for his address. During the conversation, X3 asked Alou “who is he coming with?”. Alou responded that he was coming with “one of the other brothers ... Milad” (the Offender). X3 was aware that the Offender was a relative of X2.

82. After this conversation, X3 sent his address in a text message to Alou. X3 then sent a message to Alou asking how long he was going to be.

83. Thereafter, X3 sent a text message that stated “please be quick needa leave the area”. Alou then rang X3 and informed him that he was “on the street” and he would walk to X3.

84. Soon after, Alou and the Offender met with X3 in Greenacre. During the conversation, Alou asked X3 “Can you get anything” and, as he said this, Alou turned his hands into the shape of a pistol. X3 said that during this conversation he told Alou to contact X2 for assistance. X3 said that Alou did not use the word “gun” and did not disclose the reason why he wanted a firearm and “blocked off” the question when asked for the reason.

85. I am satisfied that the Offender was present on this occasion to give support to Alou during a conversation which was closely linked to the plan that Farhad would kill someone with a firearm in a terrorist act. The Offender and Alou were both supporters of violent jihad and the Offender was well aware of the purpose of the meeting and he heard and saw all that occurred at that meeting.

86. On the afternoon of 23 September 2015, the Offender and Farhad were seen working together removing rubbish and construction waste from inside the Parramatta Mosque.

87. That evening, a member of the Bricks Forum called the Offender and the two discussed where they would pray the following day.

88. In the early afternoon on 24 September 2015, Alou called X3 and asked him for X2's number.

89. Soon after that call, both Alou and the Offender contacted X2 and made arrangements to meet later that night. Alou made most of the arrangements using his own mobile telephone. However, just prior to meeting X2, Alou sent a text message to X2 informing him that the battery on his telephone was about to "die" and to contact Alou on the Offender’s mobile telephone number. The Offender made it clear to X2 that they had to meet him that evening as it was "urgent".

90. At 8.30 pm on 24 September 2015, Alou and the Offender met X2 at a chicken shop in Granville for approximately 25 minutes. During the meeting, Alou asked X2 for a "favour" stating he wanted a "gun". X2 asked Alou who he “had dramas with” and Alou replied "we don't have dramas with anyone. We can't tell no-one". X2 stated that he would “ask around ..." to see if he could source a firearm for Alou. According to the Offender, X2 mentioned a firearm would cost “5 to 10 grand” (T47). After finalising code words to be used, a follow-up meeting was arranged.

91. On 25 September 2015 at 10.26 pm, Alou had a telephone conversation with his wife, Shana Perger (“Perger”), in which he told her that he would go past the Offender’s home to talk to him about something. When asked why he wanted to see the Offender, Alou said "Do you want me to tell you everything on the phone, you want me to tell you who I want to kill tomorrow!”. Alou told Perger that he needed the Offender’s advice.

92. On 26 September 2015, Alou messaged X4 using WhatsApp and asked if his “jumper” was ready, a reference to the Islamic State flag. X4 fended him off, saying “Wallah sorry brother I fully forgot about it, we're doing eid festival at the moment I'll make it as soon as I can and let you know”.

93. In the early afternoon on 27 September 2015, Alou telephoned an associate asking to borrow $200.00. I accept that Alou was gathering money at this time to put towards the purchase of a firearm, a transaction which he thought (at that stage) would require payment of money.

94. On the evening of 27 September 2015, the Offender posted on the Bricks Forum a link to a video involving Abu Bakr al-Baghdadi, the self-proclaimed Caliph of Islamic State. In response, Alou warned the Offender about posting the link (Exhibit L, page 62):

“Bro straight out this isn't smart at all speaking bout this stuff we should be more wise instead of fools coz clearly these filthy munafiqs [hypocrite] dogs see this stuff. We should be smarter and just coz we have heat doesn't mean dats we give ourselves even more to these pigs and allahu alam (God knows best).”

95. On 28 September 2015, Alou telephoned a person and asked for a loan of $100.00 which I accept was for the purpose of getting money for the purchase of a firearm.

Events on 29 September 2015

96. At 10.38 am on 29 September 2015, Perger called Alou and they discussed the Offender’s movements.

97. At 10.41 am, the Offender used Alou's car to drive to Alameddine’s house in Lockwood Street, Merrylands. The Offender then talked to a number of unidentified males out the front of Alameddine’s house.

98. At 10.58 am, Perger called Alou and told him:

“… Milad [the Offender] said to call your brother and tell him to come - send me your brother's number so that he can call your brother to tell him to come outside when he gets there 'cause he has to give him money or something.”

99. The Offender’s wife could be heard in the background saying “don't say it over the phone”.

100. At about 11.00 am, Alou called his brother Hozan and told him that the Offender would come past to give him the money that he (Alou) owed him.

99. At 12.07 pm on 29 September 2015, the Offender entered the Parramatta Mosque and went into the alcove of the male prayer hall. Farhad, who was in a nearby area, followed the Offender. At 12.08 pm, the Offender was seen glancing into the female bathroom area before again going out of camera view. Between 12.08 pm and 12.09 pm, the Offender and Farhad remained in the same area out of camera view. It was on this occasion that the Offender gave Farhad a sum of money ($1,000.00) to assist in funding Shadi’s travel to Syria (T43-44) (conduct relevant to Count 2).

100. At about 12.45 pm, Shadi and Farhad entered Westfield Shopping Centre in Parramatta. Farhad was carrying a Nike brand sports bag. At about 12.50 pm, Shadi entered the office of STA Travel. Farhad sat on a nearby bench, waiting for Shadi whilst she was in the STA Travel Centre. Shadi was making further arrangements for her journey to the Middle East with the assistance of the money provided shortly before by the Offender.

101. At about 2.27 pm, Farhad and Shadi left the Westfield Shopping Centre in Parramatta.

102. During the evening of 29 September 2015, Alou discussed a particular location in Guildford with a Bricks Forum member. At 10.35 pm that evening, the Offender was observed with an unknown person walking on Bursill Street, Guildford towards Marion Street, Guildford.

Events on 30 September 2015

105. On the morning of 30 September 2015, Alou sent X4 a message over WhatsApp enquiring about progress with the Islamic State flag. Alou asked “How did it go? Finished yet akhi?”.

106. At 1.57 pm on 30 September 2015, Alou arrived at the Parramatta Mosque. Between 1.57 pm and 2.27 pm, Alou and Farhad were present, but were out of camera view in the Mosque.

107. At 2.27 pm, Alou and Farhad returned into camera view together and Alou left the Mosque. Within two minutes of Alou's departure, Farhad collected his backpack and left the Mosque.

108. At 2.46 pm, Alou sent a coded SMS to X2 providing an alternative telephone number for X2 to contact him.

109. At 8.00 pm, Alou met with XI and X2 at a chicken shop in Granville. X2 told Alou that he could not source a firearm for him.

110. At 8.43 pm, Alou received an SMS from X2 with the text “?”.

111. At 9.22 pm, Alou received an SMS from X2 texting a telephone number of an associate of Alameddine.

112. At 9.28 pm, Alou called that number and spoke to a person. Alou said he was “desperate” and that he wanted the number as “he really needs it”.

Events on 1 October 2015

113. At 12.02 pm on Thursday 1 October 2015, Farhad arrived at the Parramatta Mosque carrying a black Nike backpack.

114. At 12.23 pm, the Offender arrived at the Parramatta Mosque. Whilst there, the Offender assisted a work colleague to move a hot water heater.

115. At 12.42 pm, Alou sent an SMS to the Offender saying “Asalamu alaykum [peace be upon you] can u ask ur boss wen im getting my $$$”.

116. At 1.00 pm, Alou arrived at the Parramatta Mosque carrying a black sports bag, followed by Perger. Alou walked into the female entry of the Mosque and left the black sports bag in a location not covered by CCTV.

117. At about this time, the Offender and his work colleague stood in the female entrance and the Offender appeared to speak to someone off-camera in the area in which Alou and Farhad were last seen. I am satisfied that the Offender spoke to Alou and Farhad about the state of planning for the commission of a terrorist act to be carried out by Farhad. This was the topic uppermost in the minds of the three of them.

118. It is true, as was argued for the Offender, that there was no firearm obtained at that time. However, as is clear from the events of the next 24 hours, once a firearm was obtained, there would be no delay in supplying the weapon to Farhad to be used to murder someone in a terrorist act. I do not accept the Offender’s evidence that he believed the terrorist act had been called off (T133). He knew that Alou was continuing in his efforts to obtain a firearm with the expectation that the weapon would be given to Farhad for the prompt commission of a terrorist act.

119. The Offender stated in evidence that he had suggested to Farhad at one point that he (Farhad) should accompany Shadi overseas and that Farhad initially was agreeable to this course, but later said that he would not travel overseas (T43, 55, 62). It may have been that the Offender discussed this with Farhad at some point. However, it is clear that there were no arrangements made in that respect nor any money collected or provided for the purpose of travel by Farhad. The only planned traveller was Shadi. The Offender agreed that he had not tried to talk Farhad out of committing a terrorist act in Australia (T111).

120. It was clear by late September 2015 that Farhad remained ready, willing and able to commit a homicidal terrorist act once a firearm was obtained.

121. Further, the Offender made entirely clear that, if he knew the terrorist attack was to occur on 2 October 2015, he would have “probably cancelled work and helped out Raban on the way” (T133). The Offender himself remained ready, willing and able to assist Alou and Farhad in the commission of the terrorist act if he had notice of when it was to occur.

122. At about 1.15 pm, Alou, the Offender and Farhad stood together with a large group for prayer. At 1.36 pm, Alou hugged Farhad goodbye and then left the Parramatta Mosque without the black sports bag he had with him when he entered the Mosque.

123. At 2.31 pm, Farhad collected the black sports bag that was left behind by Alou and left the Mosque carrying the bag.

124. At 2.38 pm, Alou contacted the Offender. During the conversation, the Offender said to Alou he was “at the house” and Alou replied that he was “coming”. The Offender then told Alou, “Raban can you bring me something, bro? Actually, I'll give you the money, cuz”.

125. At 2.51 pm, Farhad met with Shadi near the old Parramatta library and gave her the black sports bag before saying farewell to her. By that time, I am satisfied that Shadi well knew that Farhad was to carry out a terrorist act and was likely himself to die or be captured. As observed when sentencing Alou, it is difficult for decent and right-minded members of the community to understand the twisted and evil minds at work where a 21-year old woman is prepared to have her 15-year old brother commit a homicidal atrocity in the likely knowledge that he would be captured or die in the process. Acts and thoughts of this type are the antithesis of civilised religious beliefs in a modern democratic society such as Australia: R v Alou (No. 4) at 411 [74].

126. Shadi then got into a taxi out the front of Civic Place and was driven to Sydney International Airport. When Shadi arrived at the International Airport, she was carrying the black sports bag and a bag with black polka dots.

127. At 2.57 pm, Farhad returned to the Parramatta Mosque without the black sports bag, which he had given to Shadi before she departed for the airport to travel to the Middle East.

128. At 7.44 pm, Alou called another person and confirmed a meeting time of 7.45 pm. Alou then drove to the Offender’s home in Guildford and picked him up and both men then travelled to premises in Auburn.

129. Between 7.44 pm and 7.47 pm, a member of the Bricks Forum made three unsuccessful attempts to make telephone contact with the Offender. At 7.46 pm, that person also made an unsuccessful attempt to telephone Alou.

130. At 9.31 pm, Alou and the Offender attended the vicinity of Alameddine’s home in Lockwood Street, Merrylands. I accept that, by this time, the Offender was aware that Alou intended to seek a firearm from Alameddine.

131. Between 9.00 pm and 10.30 pm, Alou made five attempts to call Alameddine using his wife's (Perger's) mobile telephone.

132. At 10.38 pm, Alou called Alameddine and told him that he had attended his house earlier that evening and had seen his brother, Rafat Alameddine. Alameddine confirmed that he was not home and would call Alou the following day. Alou insisted that Alameddine see him that night.

Events on 2 October 2015 - the Day of the Terrorist Act

133. On 2 October 2015 at 6.51 am, Alou sent two SMS messages to X3 asking if he was there. X3 did not respond.

134. At 8.04 am, Alou tried to call X3, but he could not get through. At 10.15 am, X3 messaged Alou and said “Yea akhi [Yea Brother]”.

135. Between 9.38 am and 10.17 am, two unanswered calls were made between Alou and Alameddine.

136. At 9.58 am, Farhad entered the Parramatta Mosque carrying the Nike backpack on his back.

137. Between 10.17 am and 10.29 am, Alou and Alameddine exchanged messages arranging to meet.

Alou Travels to the Vicinity of Alameddine’s House

138. At 10.31 am, Alou parked his car in Lockwood Street, Merrylands and left the vehicle.

139. Ten minutes later, Alou returned to his vehicle and then drove home.

Alou Speaks to Farhad at the Parramatta Mosque and Meets with a Member of the Bricks Forum

140. At 11.31 am, Alou entered the Parramatta Mosque and sat with Farhad. Alou, his brother Hozan and Farhad spent the next two hours in each other's company and appeared during this time to be engaged in conversation.

141. At 12.21 pm, a member of the Bricks Forum arrived at the Parramatta Mosque in his vehicle which he parked next to Alou's vehicle at the front of the building, before entering the Mosque.

Further Contact and Meetings Between Alou and Alameddine - Supply of the Revolver

142. Between 12.58 pm and 1.20 pm, Alameddine attempted to make six calls to one of Alou's services from a public telephone in Rees Street.

143. At 1.10 pm, Alou took a call from Alameddine from the Rees Street public telephone and they discussed a meeting.

144. It was the case, that the Offender was working at another location on 2 October 2015 and thus was not present at the Parramatta Mosque. That said, the Offender said that he would have been present to assist if asked to do so (see [121] above).

145. Between about 1.35 pm and 2.55 pm on 2 October 2015, Alou and Alameddine met at different locations at Parramatta and Merrylands with another person being present on some of these occasions. The purpose of the meetings was to facilitate the supply of a firearm to Alou.

146. By 2.55 pm, Alameddine had supplied to Alou the revolver which was to be used by Farhad about an hour later in the commission of a terrorist act.

Alou Meets with Farhad at the Parramatta Mosque and Supplies the Revolver to Him

147. At 3.05 pm, Alou returned to the Parramatta Mosque where he met with Farhad.

148. At 3.34 pm, Hozan Alou and Farshad arrived at the Parramatta Mosque and met with Alou and Farhad.

149. At 3.40 pm, Alou, Farhad, Farshad, Hozan Alou and two other males prayed together. After praying, the men sat together and talked.

150. At 3.46 pm, Farshad and Hozan Alou departed the Parramatta Mosque, leaving Farhad and Alou together.

151. At 3.48 pm, Alou walked out of the Mosque to his vehicle, which he had parked alongside the Mosque’s entrance. Alou got into the front driver's seat and remained there for a short time. Alou then got out of his vehicle and appeared to be holding or adjusting something in his left hand. He then walked towards the entrance of the Mosque, holding his left hand under his robe. Alou was holding the revolver which was secreted in his clothing as he entered the Mosque to hand the weapon to Farhad.

152. At 3.58 pm, Alou and Farhad entered the female-only prayer hall together. This was their final meeting. Farhad was carrying a black Nike brand backpack. As they entered the female prayer room, Alou removed his mobile telephone from his right pocket and placed it on a shelf immediately outside the female prayer hall.

153. The two men remained alone together in the female prayer room for about seven minutes. During this period, Alou handed the revolver to Farhad and discussed with him the final preparations for the terrorist act.

154. At 4.04 pm, Alou left the female prayer room by himself and, after collecting his mobile telephone, he left the Mosque and returned to his vehicle whilst using his mobile telephone.

Farhad Leaves the Parramatta Mosque and Kills Mr Cheng

155. At 4.06 pm, Farhad entered the main prayer hall and commenced praying. Thereafter, he went to another section of the Parramatta Mosque and changed into a black robe known as a “dishdasha”.

156. At 4.10 pm, Alou got into his vehicle (parked near the entrance to the Mosque), turned the vehicle around and reverse parked into the same car space. The car was then facing Marsden Street.

157. At 4.12 pm, Alou drove away from Parramatta Mosque travelling along Marsden Street and into George Street and then into Charles Street.

158. At around this time, Farhad left the Mosque. As he departed, he looked up at the CCTV camera which was located near the entry/exit and held up his right hand with his index finger raised. This one-finger salute had become associated with Islamic State and is a reference to the “tawheed” (there is no God but Allah).

159. At 4.13 pm, Farshad called Alou and asked if he knew where his brother Farhad was. Alou replied that he had left Farhad in the Mosque half an hour before and stated (falsely) that he did not know where he was. Alou said he was on his way to meet his wife.

160. At 4.14 pm, Alou drove past the New South Wales Police Headquarters’ building in Charles Street. Alou had never before been observed travelling this route after leaving the Parramatta Mosque. It is clear that Alou was aware of the significance of the New South Wales Police Headquarters to the planned terrorist act to be carried out by Farhad.

161. At 4.24 pm, Farhad walked in a southerly direction along Charles Street, Parramatta. Farhad then paced back and forth along the footpath parallel to the main entry doors of the New South Wales Police Headquarters. Farhad walked up behind several people who had left the building before turning away and walking back to the main doors of the building.

162. At 4.30 pm, Mr Cheng, a civilian accountant, walked out of the New South Wales Police Headquarters. Farhad fell in behind him and walked until he was very close and then shot Mr Cheng to the back of the head. Mr Cheng was killed instantly and fell to the ground.

163. The murder weapon was not licensed in Australia and there were no records that it had been imported into Australia legally.

164. After murdering Mr Cheng, Farhad strode back and forth past the entrance to the New South Wales Police Headquarters. Farhad stopped and stood on the footpath facing the entrance and fired directly at the building and in the air a number of times, whilst yelling “Allahu-akhbar”. This alerted two Special Constables on duty inside the building. They left the building and, in an exchange of gunfire, Farhad was shot dead.

165. When Farhad's clothes were searched, located inside a pocket of his robes was the handwritten note referred to at [33] above. A torn copy of the note was located later in Farhad’s bedroom, with this being written by Shadi. I accept that Shadi drafted the note which Farhad then wrote himself and carried with him at the time of the terrorist attack.

Events After the Death of Mr Cheng - The Offender Praises Farhad for his Terrorist Act

166. Between 5.17 pm and 5.28 pm, Alou tried three times unsuccessfully to call the Offender.

167. At 8.56 pm, Alou and Perger heard a commercial radio station broadcast a statement by New South Wales Police Commissioner Scipione in relation to the murder of Mr Cheng. Perger stated “good” and as the statement continued, Perger went on to say “Jobs done then”. Alou could be heard speaking and humming in the background.

168. It is apparent that the murder of Mr Cheng and the death of Farhad did not cause the Offender to question, let alone abandon, his support for Islamic State.

169. In the late afternoon on 5 October 2015, the Offender shared an image on the Bricks Forum of a newspaper report entitled “Tribute page labels Parramatta teen shooter a hero of the Islamic people” which was accompanied by a photograph of Farhad against the background of an Islamic State flag (Exhibit 3).

170. Late on 5 October 2015, the Offender posted a message on the Bricks Forum (Exhibit L, pages 81-82):

“Allahu akbar the young brother had a smile on his face and his finger up.”

171. The Offender said in evidence that the “young brother” was Farhad and that this message conveyed his then belief that Farhad was a “martyr” who had been “rewarded by Allah by going to Paradise” (T166). The reference to Farhad having “his finger up” picked up a common theme of Islamic State propaganda.

172. On 5 October 2015 at 2.46 pm, the Offender called Farshad and they discussed Mr Cheng's murder. Both men praised Farhad for his actions.

173. On 7 October 2015, search warrants were executed at premises including those of Alou, Alameddine and others.

174. On 19 October 2015, the Offender appeared on the ABC 7.30 Report program. In answer to the question “Would you get yourself killed for Allah?”, the Offender said “I'm not gonna answer that, because if I say yes I'll get in trouble, and if I say no I'll be a liar. I accept some of their opinions and I disagree with other opinions”. The journalist asked “Which do you disagree with?”. The Offender said “Like attacking Australia, and other stuff”. The journalist said “But you support Islamic State?”. The Offender said “Half Half”.

175. On 22 November 2015, the Offender posted on WhatsApp a smiling photograph of himself with a raised finger, a sign of support for Islamic State (Exhibit 3).

176. On 29 December 2015, Merhi messaged the Offender from Syria and said:

“Listen Anything that happens you let us know b4 ... And you make sure if there doing it for us to make a video and send to the brothers. We have our own media teams And akhi [brother] Make sure it's civilians. Not anything else. The same way they get our people we gotta do the same.”

Events in February-March 2016 - The Offender’s Association with Abdul

177. By February 2016, the Offender was working with a person he knew as Abdul (who happened to be an undercover operative). Conversations between the Offender and Abdul were recorded. Not only did these conversations provide evidence in support of Count 3, but the Offender made admissions of his guilt with respect to Counts 1 and 2 as well. As will be seen, the statements of the Offender disclosed (in many unguarded moments) his continuing support for violent jihad and Islamic State and his boasting praise of Farhad for the murder of Mr Cheng. The depth of the Offender’s commitment to the cause of Islamic State was manifest.

178. On 2 February 2016, Merhi and the Offender sent text messages to each other. During the exchange, Merhi requested the Offender to collect money on his behalf. One of Merhi's messages said:

“Akhi do you reckon you can go collect money from all the brothers fi sabilah. And I got a person use can drop it off to. There's a lot of rewards aiding the Mujahideen”.

The Offender responded “Ofcs [of course] Akhi”.

179. On 24 February 2016, the Offender told Abdul that he had been listening to a recording on his telephone of a person who was known as “the spokesperson for the Islamic State”. The Offender said that this person had issued a “Fatwa” that allowed those who follow Islamic State to murder an Australian at any place or any time.

180. Later, the Offender told Abdul that he should download certain apps, as the AFP and ASIO did not have coverage of those instant messaging services. The Offender said that he did not trust “IMessage” or “WhatsApp”. The Offender said that he had spoken to the “brothers” fighting overseas in Syria who were using these apps. He explained that fighters in Syria were being “hammered” by airstrikes and that the fighters were deployed for three-day tours and returned home for four days. It is clear that the Offender was keeping abreast with the criminal activities of Islamic State in Syria.

181. On 25 February 2016, the Offender and Abdul had a conversation about sending money overseas for Islamic State. During the conversation, the following was said:

“THE OFFENDER: You should be careful talking on the phone.

ABDUL: I will throw this phone away after a week. If you know if any brothers that need help let me know.

THE OFFENDER: There is that brother overseas who I know needs a lot. I contacted these guys when I helped Farhad 's sister get overseas.

ABDUL: Okay contact them and ask if they need help with money.

THE OFFENDER: The best place to talk about this stuff is at work, leave our phones in the van and talk about it.”

182. On 27 February 2016, the Offender wrote a letter to Alou, then being held in custody at the HRMCC at Goulburn. The Offender’s letter contained extremist sentiments, including the statement “May Allah destroy these pigs and let them rot in hell” and “May the curse of Allah be upon these kuffar [non-believers]” (Exhibit 3).

183. On 29 February 2016, the Offender told Abdul that the brothers overseas needed supplies because of air strikes and that, if Abdul's contacts were willing to fund brothers going overseas to fight, it would cost $5,000.00 per person. Weapons and housing would be supplied overseas. Abdul asked the Offender if he had someone who could handle the money. The Offender said that he had a “trusted brother”, the same brother who assisted the Offender to get Farhad's sister overseas. The Offender was referring to Merhi. The Offender said that this brother would hold the money until the brother(s) were ready to travel and “That's what I did for Farhad's sister”.

184. The Offender went on to say that “I told Farhad why don't you go overseas with your sister, and I got him to like say yes but he prayed a isitkhara and said I am just going to do it here, I'm ready for it”. The Offender then said that he collected the money to fund Shadi's travel from the “brothers”. He explained to Abdul that the process of travelling to Syria involved buying a return ticket to Turkey, booking a hotel in Turkey, contacting a “brother” who then picked up the person and arranged transport across the border to Syria. Abdul stated that he did not believe that Alou had the means or connections to obtain a gun to which the Offender replied “It's not that hard”.

185. On 2 March 2016, Abdul asked the Offender why he thought the Australian Government had labelled Islamic State a terrorist organisation, and not the Free Syrian Army (“FSA”). The Offender said that it was because the Dawlah (Islamic State) were implementing Sharia and that FSA was trying to install a democratic political system.

186. During the conversation, the Offender gave Abdul advice about how to facilitate a female travelling to Syria:

“THE OFFENDER: In war you have to deceive them in this world you do, you have to, Farshad 's sister, Farhad's sister you know she was a, jilbabi [wears a Jilbabi].

ABDUL: Yeah.

THE OFFENDER: She took everything off.

ABDUL: Did she, is that what she was told to do?

THE OFFENDER: That's what she has to do.

ABDUL: But she wants to get married?

THE OFFENDER: Over there a hundred percent. You’ll get married in like two minutes.

ABDUL: Cause Farhad's sister got married over there.

THE OFFENDER: Farhad's sister got married yeah.

ABDUL: Was that arranged before?

THE OFFENDER: No, … she got there and she got married.

ABDUL: But how did she know she was going to the Dawlah [the Islamic State] cause she doesn't want to do, she doesn't want to go with Nursa.

THE OFFENDER: She doesn't what?

ABDUL: She doesn't want to go with Nursa.

THE OFFENDER: She goes to Dawlah [Islamic State].”

187. The Offender said that the girl would be going to Islamic State “a hundred percent Dawlah [Islamic State]” as “the contact we have is from the Dawlah [Islamic State] a guy will pick you up”. Later in the day, the Offender painted the letters “ISIS” on a wall in the premises where the two men were working, before painting over it.

3 March 2016 - Discussion Concerning the Murder of Mr Cheng

188. On 3 March 2016, the Offender and Abdul had a conversation about the murder of Mr Cheng. Abdul said that Mr Cheng was not a “copper” but an “accountant”. The Offender replied that Mr Cheng was a “policeman” and that he “... was in the Force”.

189. Abdul said that Mr Cheng just worked at the police building. The Offender replied, “He got what he deserved. He's in that environment ... aiding them”. The Offender went on to say “... sharpening the pencil for the kafir ... Aiding - imagine aiding them”. Abdul asked the Offender if he knew what was going to happen. The Offender replied “What do you think? I am Raban's best friend”.

190. Abdul asked if the Offender had tried to send Farhad overseas. The Offender replied “Yeah I did because I knew this would backfire on us, hamdullah [Praise be to God]”. The Offender then said “You know what the first thing he [Farhad] was going to do?” As he said this, the Offender mimed blowing himself up. The Offender then said that “There was no ... Couldn't find bombs”. Abdul then asked the Offender “Did you think he [Farhad] had the courage to do it?” to which the Offender replied “Yeah I knew he would”.

191. The Offender confirmed in evidence that he had expected that Farhad would die in the terrorist act although he said that he had made up the reference to “bombs” in his discussion with Abdul as he was “boasting” and “exaggerating” the story (T112).

192. Whether the Offender was exaggerating in his reference to “bombs” is not clear. However, what is clear is that at a time five months after the murder of Mr Cheng, the Offender was speaking in terms which celebrated the terrorist act, with no hint of remorse or common humanity and decency in his description of Mr Cheng. Rather than being shaken by the murder so as to question his own beliefs, the Offender manifested the same hard-wired criminal belief system with no concern for his fellow Australian citizens.

7-21 March 2016 - Further Conduct Constituting Offence in Count 3

193. Between 9.05 am and 10.03 am on 7 March 2016, Merhi and the Offender exchanged messages in which they discussed how to facilitate the movement of $5,000.00 in cash from Australia to Islamic State. After being asked if the money should be sent with a traveller, Merhi stated that it should be sent via money transfer, as it was “faster”. The Offender said that he would get the “brother” to send it. Merhi then told the Offender to wait and he would get the number.

194. The Offender told Merhi that he had an “uk[h]ti” (sister) who wanted to travel. After discussing whether or not the “ukti” was divorced and had completed her “iddah” (period of waiting after divorce), the Offender confirmed that the “ukti” was Lebanese. Merhi replied that in this case there was “... no problem ...” to get her into Syria. Merhi then provided the Offender with the details of his contact in Australia together with the mobile telephone number and username of that person. Merhi asked the Offender to see “her” today.

195. The Offender asked Merhi what he should say to her and confirmed that he knew who she was. Further messages were exchanged regarding arrangements to meet this person. The Offender informed Merhi that the “... brothers wanna know if the money will get there safe”. Merhi replied that he had proof that the money arrived safely in the form of receipts from Western Union. Merhi stated that he would photograph the receipt and send it as proof that the money was received.

196. Merhi explained that money came quickly, “... like as soon as they send it and I show the guy the [receipt]. He gives the money [on] the spot”. Merhi went on to write “Yeah the sister is just holding it akhi then her sister or mate sends it cause she is under age”. Merhi then said that he would send the Offender a “brother’s” number before he “goes out next time” and that he had “... just got back today”. The Offender then asked how the situation was “there”. Merhi replied that the “... ranks are getting cleaned from the munafikeen … the brothers are getting more steadfast”.

197. The conversation concluded with the Offender asking Merhi to resend the person’s contact details. Merhi then resent the details and said that he would get the “sister” to message him and would get him a photo of the receipt for the money sent. Merhi later sent to the Offender a Western Union receipt for the amount of $4,000.00, from a previous money transfer as an example.

198. On the same day, Abdul and the Offender had a conversation in which the Offender said that he had sworn his “bay'ah” (allegiance) to Islamic State.

199. At one point, the Offender and Abdul drove past Alameddine's house in Merrylands. The Offender pointed out the premises and said to Abdul, “This is the Alameddine's house. It's the one that always gets raided. It's been on the news”. Abdul asked the Offender, “Are they the ones that gave the gun to Raban?”. The Offender replied “yeah”.

200. On 8 March 2016, a conversation was recorded between the Offender and Hozan Alou. The Offender said to Hozan “They took those boys the last thing we need ... you (or similar), Raban, [another person]. I was surprised I didn't get arrested”. Hozan said “Sometimes I wish none of this happened. How about you?”. The Offender said “You do? I don't care”. The Offender then laughed. In response, Hozan said “Haram bro”. During the course of the day, the Offender and Hozan listened to audio recordings of extremist sermons.

201. Contained in the Offender’s telephone as at 11 March 2016 were various images of Anwar al-Awlaki (see [47] above) holding firearms in extremist propaganda (Exhibit 3). It is clear that the poisonous speeches of al-Awlaki continued to influence the Offender’s extremist beliefs.

202. On 15 March 2016, Abdul told the Offender that the “brothers” were ready to send the money. Abdul asked the Offender if he had spoken with the girl. The Offender told Abdul that he had spoken to her and she had told him that she had a sister who worked at Western Union. The Offender told Abdul that he could meet the younger sister at Guildford Park. He also told Abdul that he would pass her number to him so Abdul could arrange to meet her directly, stating “You guys can go on your own”.

203. The Offender went on to say that he would make arrangements for Abdul to meet the girl at Guildford Park on 16 March 2016. The Offender informed Abdul that the female would take the money and would hand it to a younger boy who would then deliver it to Western Union so “no one gets into trouble”.

204. On 16 March 2016, Abdul asked the Offender if the “girl” still wanted to travel and if so she should be able to travel through Turkey, not Lebanon. Both men also discussed arrangements for Abdul to hand over $5,000.00. The Offender told Abdul that he had deleted the girl's telephone number and that she was not answering on “Telegram” and that he regularly deleted and reinstalled the “Telegram” app. The Offender said he would go to the girl's house to re-establish contact and, as a last resort, his wife had her as a contact on “Snapchat”. At about 4.09 pm, the Offender sent a message to Abdul telling him that the girl was not home.

205. On 17 March 2016, Abdul asked the Offender whether the money he had collected should be donated to “Dawlah” (Islamic State) or go towards a female who wanted to travel (to Syria). The Offender stated that he could not give a fatwa on that. Abdul then asked him, “Yeah but when you were raising money for ... Farhad's sister and for Farhad to get the, the pistol, did like anyone know about it? Did anyone say anything? Like don't do that or whatever?”. The Offender diverted the conversation back to donating money to Shadi, and told Abdul that the people who donated the money did not know the identity of the person for whom it was destined.

206. Abdul asked the Offender “Well what about the thing for the ...”. The Offender said “What the pistol?”. Abdul said “The gun?”. The Offender replied “That was for free”. Abdul repeated “That was for free?” and the Offender said “Yeah ... We had the money but Allah's come and just opened the door; and it was for free”. Abdul then said “So, the brother gave it for free?” The Offender replied “Yeah”.

207. On 20 March 2016, the Offender spoke to an associate on the telephone to tell him he had money to give him (to be given to a friend in prison). Later, the Offender called the same associate and told him to see him at the woman’s house.

208. On 21 March 2016, Abdul collected the Offender from his home address. They drove the short distance to an address in Guildford and the Offender entered those premises alone. When the Offender returned to the vehicle, he and Abdul drove to Guildford Park. A short time later, a person arrived and spoke with the Offender and Abdul.

209. During their (recorded) conversation, the woman told both men that “they” sent the money to Syria via Lebanon, that they sent $10,000.00 a month before but had not sent any more since that time. When asked by Abdul, the woman said that they were not able to send $50,000.00 or $60,000.00 but were happy to do the $5,000.00.

210. Arrangements were then made for Abdul to deliver $5,000.00 in cash about 8.00 am the next day (22 March 2016). Abdul said he would collect the Offender from his home and then deliver the money to the woman at her home.

The Offender is Arrested on 22 March 2016

211. On 22 March 2016, Abdul collected the Offender from his home in Guildford and then drove to the woman’s home, where, as arranged, Abdul delivered $5,000.00 in cash to her and then departed.

212. A short time later, the Offender was arrested. He has remained in custody since that date.

Conduct of the Offender in March and April 2016

213. On 31 March 2016, the Offender was shown pictures of graffiti located on the inside of his cell wall during an ERISP interview with Detective Sergeant Strik and Federal Agent Foster. Some of the pictures depicted images of terrorist attacks and made reference to Islamic State. The Offender identified parts of the graffiti on the cell wall that he had drawn (Exhibit 3).

214. On 28 April 2016, the Offender appeared via audio-visual video link at Goulburn Local Court. During his appearance, he lifted his index finger towards the camera (giving an Islamic State salute) (Exhibit A, Tab 7 - affidavit of Senior Correctional officer David Smithson dated 7 September 2018). The Offender said in evidence that he gave this gesture as he “was pissed off” at being charged (T105).

Some Sentencing Principles Applicable to Terrorist Offences

215. As with sentencing for all Commonwealth offences, the provisions of s.16A Crimes Act 1914 (Cth) are to be applied in sentencing the Offender.

216. In the course of sentencing Alou (R v Alou (No. 4) at 422-423 [165]-[171]), I set out a number of principles identified by courts in Australia and the United Kingdom with respect to sentencing for terrorist offences:

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

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

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

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

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

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

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

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

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

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

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

217. I will have regard to these considerations once again in sentencing the Offender.

Objective Gravity of Offences

218. Assessment of the objective gravity of the offences is an essential element of the sentencing process: Tepania v R [2018] NSWCCA 247 at [107]-[108]. The Court must impose a sentence which is of a severity appropriate in all the circumstances of the offences: s.16A(1) and (2)(a) Crimes Act 1914 (Cth).

Count 1

219. The Crown submitted concerning Count 1 that the Offender was intimately involved and complicit in Farhad’s terrorist act on the afternoon of 2 October 2015 and had an extensive involvement from an early stage in the planning and preparation of the terrorist act. The Crown submitted that the Offender and Alou were co-principals in the commission of the offence and the fact that the Offender is to be sentenced for aiding and abetting does not, of itself, require the Court to consider him any less culpable than the principal who committed the terrorist act.

220. The Crown submitted concerning Count 1 that the Offender was a key person in critical steps leading to the commission of the terrorist act, including:

1. assisting Alou with attempts to have a radical, extremist flag made;

2. attending meetings at Parramatta Park with Alou and others in August and September 2015, with a suspicious ritual being filmed on 28 August 2015 (handcuffing of Hozan Alou) and with Farhad being present as well on 11 September 2015;

3. meeting with Alou and Farhad at the Parramatta Mosque on 21 September 2015, prior to meeting with X3 that evening in an effort to obtain a firearm;

4. assisting Alou to obtain a firearm by attending meetings with Alou, X2 and X3;

5. permitting Alou to use his mobile telephone as a point of contact with X2;

6. providing money to Alou at or about the time that Alou was seeking finance for the acquisition of the firearm;

7. using Alou’s vehicle to attend the Alameddine residence on 29 September 2015 and speaking to a number of unknown males outside the residence;

8. after attending the Alameddine residence, travelling to the Parramatta Mosque and meeting briefly with Farhad in an area which was out of camera view;

9. visiting in the vicinity of the Alameddine residence on 1 October 2015 in the company of Alou for the purpose of obtaining a firearm; and

“Im writing this letter regarding what happen in Court. I would like to say few thing’s that has been playing in my mind. Firstly I said that I’m sorry to Cheng family & about me being remorseful about my action’s. I would like to say that I’m not sorry nor I’m regretful for my action. I take back what I have said because I wasent [sic] been truthful.

If use can please let the Judge know about this letter before my sentencing because I don’t want any discount regarding remorse.

Thank you.”

318. No oral evidence was given at the resumed sentencing hearing on 15 November 2018. Senior Counsel for the Offender tendered Corrective Services NSW case notes which included the following entry concerning an assessment of the Offender by a psychologist on 25 October 2018 (Exhibit 4):

“Presentation: The inmate was polite and cooperative with the interview. He appeared to understand and respond to questions appropriately. Nothing unusual was noted in his speech. He rated his mood as '11' out of 10, although his mood did not seem elevated, but rather within normal range. His affect was reactive and appropriate to the discussion. Thought form appeared intact at interview with content appropriately focused on current concerns. Memory and cognition were not formally assessed.

Discussion: Atai was advised that management had become concerned about his welfare after he had produced documentation retracting statements of remorse he had apparently made during his legal proceedings. Atai acknowledged that this had occurred. He further clarified indicating that while he continued to hold to his belief system, he had ‘felt for her (Mrs Cheng) as anyone would’, and that his decision to retract his statements was in response to being ‘pissed off with the judge’. He indicated that he was comfortable with his decision and that he was satisfied that his legal representative understood his position and would represent that in later proceedings. He was asked how he would respond in the event that he received a lengthy sentence and he indicated that he would cope with this. He was able to describe a number of strategies that he employs to manage his mood, including training, speaking with his wife, talking with other inmates and reading the Quran.

On specific questioning Atai denied any history of mental health concerns. He also denied any thoughts of suicide or self-harm, and any current intent in this regard, stating such actions were ‘forbidden’ by his religion.

Impression / Plan: The inmate does not appear to be at immediate risk of harm to self and appears to be coping adequately with his current circumstances. Atai indicated a willingness to engage with psychology post-sentencing and is aware of the process for referral to OS&P staff.”

319. It was submitted for the Crown that the Offender’s letters involved, amongst other things, withdrawal of his apology to the Cheng family and the maintenance of his extremist views supportive of violent jihad. It was submitted that the letters operated strongly against the Offender in the areas of contrition and remorse, the need for general and specific deterrence, his prospects of rehabilitation and deradicalisation, protection of the community and his veracity and truthfulness as a witness.

320. Mr Smith SC submitted that the letters and the case note for 25 October 2018 revealed some level of regret directed to Mrs Cheng and that the Court should acknowledge the Offender’s frankness in explaining his position as he has done in the letters and to the psychologist on 25 October 2018.

321. Mr Smith SC agreed that there was no evidence of pressure being placed upon the Offender to write the letters (T271).

322. Whilst acknowledging that the letters did not assist the Offender in a number of respects, it was submitted that they did not operate in the completely destructive fashion as argued by the Crown.

323. In an area where the Offender carries the onus of proof to the civil standard, I am satisfied that this additional evidence operates to neutralise almost entirely the factors which I have mentioned which operated in his favour at the end of the sentencing hearing on 21 September 2018.

324. What was a somewhat fragile and tentative expression of regret directed in Court to Mrs Cheng has been withdrawn and replaced by a cursory observation made to the psychologist that the Offender “felt for [Mrs Cheng] as anyone would”. This is not evidence of remorse. Indeed, the approach adopted by the Offender towards the Cheng family is cruel and devoid of basic humanity.

325. Beyond that, the Offender is once again using the slogans of violent jihad. He states that he is “happy with my action” and asks “Allah to grant victory to the believers and to destroy those who oppress his slaves”. The Offender makes clear that he continues to attach himself to the warped and criminal belief system which has led him to his present custodial position.

326. Although there is no evidence of pressure being placed upon the Offender to send these letters, I have considered the situation in which he finds himself. I am conscious that the Offender is housed in the HRMCC with others, including Alou, who, certainly as at the date of his sentencing on 1 March 2018, remained fixated on violent jihad: R v Alou (No. 4) at 430 [224]ff. It may be easier for the Offender to remain aligned with others in custody who hold to the robotic slogans and fixated thought processes of Islamic State.

327. That said, the Offender has determined what course he wishes to take and has expressed himself in clear terms in the 14 October 2018 letters with the psychological assessment undertaken (prudently) by the correctional authorities on 25 October 2018 indicating that the Offender had chosen this approach after consideration, and that he proposed to adhere to it knowing of the likely consequences.

328. The Offender is not to be punished further for the course he has taken since 14 October 2018. However, he is deprived of several mitigating factors which would otherwise have operated in his favour on sentence.

329. There is no evidence of contrition or remorse or the development of insight into his offending and the harm done to individuals and the Australian community. The Offender remains attached to the belief system of violent jihad which bears upon issues of specific deterrence and protection of the community and his prospects of rehabilitation and risk of reoffending. I have regard, as well, to the Offender’s acknowledgement that he gave untrue evidence on a number of issues at the sentencing hearing.

330. Before this recent development, the Offender had support in the community from his wife and family and the Afghan community and he expressed an interest in choosing a pathway towards change. Whether the Offender reconsiders his position in the future with respect to his attitude to the offences and his belief system remains a matter for speculation and not any prediction based on reasonable grounds.

331. Based on the evidence now before the Court, the Offender’s prospects of rehabilitation are not favourable and his risk of reoffending remains significant, albeit allowing for the substantial period of time which will pass before he is eligible for consideration for release on parole.

Victim Impact Statement on Behalf of the Cheng Family

332. Mrs Selina Cheng read a victim impact statement made on behalf of herself, her son, Alpha Cheng, and her daughter, Zilvia Cheng.

333. The Court may take into account on sentence a victim impact statement of any persons who are victims of the offence and who have suffered harm as a result of the offence: ss.16A(2)(ea), 16AAA and 16AB Crimes Act 1914 (Cth).

334. The direct victim of the terrorist act, Mr Cheng, was an Assistant Management Accountant employed by the New South Wales Police Force as a civilian finance worker. He worked at the Police Headquarters in Parramatta. He had been employed by the New South Wales Police Force from 1 November 1997 until the date of his death on 2 October 2015, a period of almost 18 years. Mr Cheng was 58 years old at the time of his death. He was leaving work and was unarmed on 2 October 2015. He was innocently going about his normal affairs, walking down the street, when he was selected randomly as the target for a terrorist attack. He was shot dead in the terrible circumstances described earlier in these remarks.

335. The shooting of Mr Cheng was an attack upon the New South Wales Police Force as well, as Farhad had selected Mr Cheng upon the basis that he had just emerged from the New South Wales Police Headquarters’ building. Farhad’s note also points to a desire to attack the authorities in the form of the New South Wales Police Force.

336. Curtis Cheng was a fine man and a beloved husband and father. He worked in the interests of the people of New South Wales in his employment as an accountant with the New South Wales Police Force. Mrs Cheng told the Court that the day her beloved husband was “murdered in cold blood was the longest and most painful day of my life”. Her words, and the emotions which accompanied those words, made entirely clear to all that heard her speak why she felt that way.

337. Mrs Cheng has suffered enormously as a result of her husband’s death. She stated that her husband was harmless and was a good man and the gentlest of souls. He was an innocent victim selected randomly to be the subject of this mindless atrocity.

338. In words which would be supported by all right-minded members of the community, Mrs Cheng stated that she was “utterly repulsed by those who had any part in Curtis’ senseless murder”. The dreams she shared with her husband to “enjoy a happy retirement had been totally shattered”. The shocking effects of this senseless crime upon the Cheng family were laid bare for all to see.

339. Mrs Cheng attended each day of the sentencing hearing concerning the Offender. She has been present, as well, on many days when other proceedings have been before the Court arising from the murder of her husband. Alpha Cheng and Zilvia Cheng have also attended Court during these proceedings.

340. When sentencing Alou on 1 March 2018, I noted the fortitude, strength, courage, humanity, decency and dignity of the Cheng family in their response to this random act of homicidal violence which struck their family. These features have manifested themselves constantly on the occasions since March 2018 when members of the Cheng family have attended what are undoubtedly difficult and challenging court proceedings for them.

341. The strength and decency of the Cheng family may be contrasted with the cowardice and moral depravity of the Offender, Alou and Farhad in the commission of this terrible act.

342. The position adopted by the Offender since 14 October 2018 has compounded the impact of this offence upon the Cheng family. As at 21 September 2018, the Cheng family had at least a fragile and tentative expression of regret from the Offender. That apology has been effectively withdrawn - a cruel act by the Offender.

343. When sentencing Raban Alou, I referred to one of the purposes of victim impact statements in Commonwealth sentencing proceedings being to “promote the rehabilitation of offenders by confronting them with the impact of their offending behaviour”: R v Alou (No. 4) at 434 [262]. The Offender’s initial reaction to Mrs Cheng’s victim impact statement involved some response from him accepting responsibility and expressing regret for what he had done (see [307] above). However, the Offender has abandoned this position in a way which does not assist him, including an assessment of his prospects of rehabilitation.

344. The victim impact statement read by Mrs Cheng provides eloquent and profound support for the loss suffered by the family as a result of these crimes. The trauma, grief and emotional harm caused to Mr Cheng’s family, his friends and colleagues, both inside and outside the New South Wales Police Force, are apparent from the words spoken in the victim impact statement and the circumstances of the terrible loss of this fine man.

345. I extend the deepest sympathy of the Court and the Australian community to Mrs Cheng, Alpha Cheng and Zilvia Cheng for the great loss that each of them has suffered and will continue to suffer, arising from these shocking events.

The Offender’s Pleas of Guilty

346. The Offender was arrested in connection with these offences on 22 March 2016.

347. The Offender was committed for trial from the Downing Centre Local Court on 19 May 2017. According to an agreed chronology, the Offender did not commence plea negotiations with the Crown until September 2017. That process took eight months from September 2017 until May 2018.

348. In the meantime, the Offender was arraigned (with others) in the Supreme Court on 7 July 2017 and his trial was fixed (as a joint trial) to commence on 4 June 2018.

349. On 9 May 2018, an offer to plead guilty to the present offences was made by the Offender’s legal representatives with that offer being accepted by the Crown on 16 May 2018.

350. On 18 May 2018, the Offender pleaded guilty to the three offences on the indictment and admitted the matter to be taken into account on sentence under s.16BA Crimes Act 1914 (Cth).

351. The Court allowed a 15% discount for the utilitarian value of pleas of guilty when sentencing each of Alou and Alameddine: R v Alou (No. 4) at 432-433 [242]-[255]; R v Alameddine (No. 3) at [258]-[275]. It should be noted that Alou pleaded guilty to the charge against him when the matter was before the Local Court with him thereafter being committed for sentence. Alameddine offered to plead guilty to the charges for which he was sentenced on 6 July 2017, one month after being arraigned in the Supreme Court.

352. It was submitted for the Offender that a discount of at least 15% should be applied for the utilitarian value of his pleas of guilty entered soon after the Crown had agreed to alter the charges originally laid. The Crown submitted that the Offender is entitled to a modest discount at the lower end of the scale to reflect the utilitarian value of his pleas of guilty.

353. The Court is entitled to take into account the utilitarian value of the Offender’s pleas of guilty under s.16A(2)(g) Crimes Act 1914 (Cth). The utilitarian value of the pleas should be taken into account in addition to any relevant factors (if they exist) such as remorse or contrition for the offending or the acceptance of responsibility or willingness to facilitate the course of justice. When sentencing for Commonwealth offences, it is desirable that any discount given for the utilitarian value of a guilty plea be specified by the sentencing court: Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 at 51 [279]-[280]; Liu v R [2018] NSWCCA 70 at [9].

354. The Offender’s pleas of guilty occurred at a much later time than Alou and Alameddine with his pleas being entered only one month before the commencement of his trial.

355. The offences for which the Offender is to be sentenced are not identical to those which were charged against him originally. That said, there are three serious offences charged together with the matter to be taken into account on sentence for Count 1. The charges to which the Offender has pleaded guilty are not far distant from those charged against him at the outset.

356. The calculation of the utilitarian value of a plea of guilty will be determined largely by the timing of the plea so that the earlier the plea, the greater the discount: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at 10-11 [32]. Generally, the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: R v Stambolis (2006) 160 A Crim 510; [2006] NSWCCA 56 at 513-514 [11]; Giac v R [2008] NSWCCA 280 at [27].

357. The Offender’s pleas were entered at a very late stage, long after committal for trial and almost a month before the scheduled commencement of his trial. The reason for the delay in pleading guilty is irrelevant because, by delaying his pleas and entering into plea bargaining, the Offender obtained a forensic advantage which reduced, to an extent, the number and seriousness of the charges for which he was to be sentenced. I have regard as well to the seriousness of the charges for which the Offender is to be sentenced and the reduced utilitarian benefit flowing from his late pleas of guilty.

358. It is the case that there were some areas of dispute concerning the facts on sentence as to which the Offender has not had any real success: R v AB (2011) 59 MVR 356; [2011] NSWCCA 229 at 363-364 [30]-[33].

359. In all the circumstances, I propose to allow a 10% discount for the utilitarian value of the Offender’s pleas of guilty.

Parity Considerations

360. Alou was sentenced for a single offence expressed in the same terms as Count 1 charged against the Offender: R v Alou (No. 4) at 403 [4]-[5].

361. Alameddine was sentenced for materially different offences under s.101.4(2) Criminal Code (Cth) and s.51(1A) Firearms Act 1996 (NSW): R v Alameddine (No. 3) at [5].

362. In sentencing the Offender on Count 1, the Court should keep in mind the parity principle by reference to the sentence imposed on Alou. I have had regard to the sentence imposed upon Alou in accordance with the principles in Green v The Queen (2011) 244 CLR 462; [2011] HCA 49.

363. A very substantial sentence of imprisonment was imposed in the case of Alou involving a total term of imprisonment of 44 years with a non-parole period of 33 years. The objective gravity of Alou’s offence was significantly greater than that of the Offender. Further, there were differences in Alou’s subjective circumstances in particular given his prior criminal history. Prior to 14 October 2018, the Offender could point, as well, to some difference between Alou and himself in the areas of contrition and remorse and prospects of rehabilitation. However, the Offender’s recent change of approach moves his position closer to that of Alou in these respects.

364. These considerations constitute a foundation for a significantly different sentence being imposed upon the Offender for Count 1. This is the case even allowing for the matter to be taken into account on sentence for Count 1, and the fact that the Offender is to be sentenced for other offences as well.

365. The offences for which Alameddine was sentenced are so different to those charged against the Offender that the parity principle (by reference to Alameddine’s sentence) has no role to play in sentencing the Offender.

Factors to be Taken into Account under s.16A Crimes Act 1914 (Cth)

366. I have addressed a number of factors under s.16A Crimes Act 1914 (Cth) in the course of these sentencing remarks. I will now refer briefly to factors to be taken into account under s.16A(2).

367. The Court must have regard to the nature and circumstances of the offences: s.16A(2)(a). For reasons outlined earlier (at [219]-[244]), I am satisfied that the offence in Count 1 is extremely serious and lies at the higher end of the scale of seriousness for an offence under ss.11.2(1) and 101.1(1) Criminal Code (Cth).

368. For reasons expressed earlier (at [245]-[255]), I am satisfied that the offences contained in Counts 2 and 3 are serious examples of offences under s.102.6(1) Criminal Code (Cth).

369. The Court must take into account other offences (if any) that are required or permitted to be taken into account: s.16A(2)(b).

370. In sentencing the Offender on Count 1, the Court will take into account under s.16BA Crimes Act 1914 (Cth), the offence of intentionally being a member of a terrorist organisation, Islamic State, knowing that the organisation was a terrorist organisation contrary to s.102.3(1) Criminal Code (Cth).

371. Whilst the primary focus of the Court must be on the offence in Count 1, the Court should give greater weight to the need for personal deterrence which the admitted offence signifies, and also to the community’s entitlement to extract retribution in the form of punishment for the admitted offence: R v Lamella [2014] NSWCCA 122 at [48]. The Court must assess the objective criminality of the admitted offence, though recognising that it assumes a significantly lower salience in the sentencing process than the offence for which sentence is to be passed: R v Dennison [2011] NSWCCA 114 at [47]-[57].

366. I have taken this additional offence into account on sentence on Count 1 applying these principles (see [243]-[244]).

367. I have taken into account the personal circumstances of the victim and any injury, loss or damage resulting from the offence: s.16A(2)(d) and (e). I have taken into account, as well, the victim impact statement made by Mrs Cheng on behalf of the Cheng family (at [332]-[345]): s.16A(2)(ea).

368. With respect to s.16A(2)(f), for reasons set out earlier in these remarks (at [292]-[331]), I do not find that the Offender had displayed contrition or remorse for his offences.

369. For reasons explained (at [346]-[359]), I have taken into account the Offender’s pleas of guilty and will allow a 10% discount for the utilitarian value of the pleas: s.16A(2)(g).

370. The Court is required to have regard to personal deterrence and general deterrence: s.16A(2)(j) and (ja). I have taken these factors into account on sentence. The Offender’s preparedness to move to an extent from his extremist views has given away to a clear adherence to those views. Specific or personal deterrence must play a significant role on sentence.

371. A very strong element of general deterrence is required in sentencing for terrorist offences (see [216] above). This is even more so in a case such as this where the terrorist offence has caused death and thus actual harm to the community. It is of critical importance that courts send a message to persons who are prepared to assist or carry out terrorist acts that such conduct will not be tolerated and will be met by severe punishment.

372. General deterrence is a significant factor on sentence for the offences contained in Counts 2 and 3 as well. It is necessary for sentences for these offences to operate as a deterrent to others from providing financial support to terrorist organisations such as Islamic State.

373. The Court must ensure that the Offender is adequately punished for his offences: s.16A(2)(k). The sentences to be imposed upon the Offender in this case will constitute adequate and proportionate punishment for his crimes.

374. The Court must have regard to the character, antecedents, age, means and physical or mental condition of the Offender: s.16A(2)(m). I have referred to these aspects when considering the Offender’s subjective circumstances earlier in these remarks (at [256]-[291]). The Offender was 19-20 years old at the time of the offences and is now 22 years of age. He is not suffering from mental illness or any relevant physical condition. The Offender had no prior criminal history before embarking upon the sustained pattern of criminality reflected in these grave offences.

375. I keep in mind statements of principle concerning the relevance of youth in sentencing for terrorist offences (see [216] above). Whilst the youth of an offender is always relevant, it may be given less weight in light of the seriousness of the offence and the absence of any causal link between an offender’s age and his criminal conduct: R v Khalid and Ors [2017] NSWSC 1365 at [109], [270]. Like Bellew J in R v Khalid and Ors, I am not satisfied that there is any causal link here between the Offender’s age and his criminal conduct.

376. I keep in mind as well the need for courts to ensure adequate sentences are passed upon young offenders who become involved in terrorist offences to guard against any thought that the involvement of young offenders in criminality of this type will ordinarily or necessarily lead to reduced penalties.

377. The Court must have regard to the Offender’s prospects of rehabilitation: s.16A(2)(n). Once again, I observe that the guarded, but potentially favourable assessment of the Offender’s prospects of rehabilitation as at 21 September 2018, has given away to a bleaker assessment which flows from his recent and renewed adherence to the criminal belief system which explains his present predicament (see [292]-[331]). The evidence does not assist the Offender on his prospects of rehabilitation.

378. The Court is required to consider the probable effect that any sentence under consideration would have on any of the Offender’s family and dependants: s.16A(2)(p). The Offender is married and there is a young child of the relationship. The probable effect of a sentence on family or dependants is only to be taken into account if it is exceptional: R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222 at 287-288 [93].

379. Courts have observed that sentences of imprisonment will invariably cause a level of hardship or difficulty to the family of offenders so that this state of affairs is not exceptional. That said, I have taken into account on sentence the emotional stress affecting the Offender’s wife and family resulting from the imposition of sentence as a factor bearing upon the process of instinctive synthesis in determining sentence. It must be observed that the Offender’s recent stance has caused upset to his wife which will no doubt impact adversely upon his son. That is the direct result of the Offender’s actions for which he alone is responsible.

380. This draws together all of the factors which I have so far considered in these sentencing remarks.

Other Sentencing Decisions

387. The Crown provided a schedule of comparative cases for terrorist offences. Only one of these cases involved sentencing for the commission of a terrorist act which caused the death of a person: R v Alou (No. 4). Other cases have involved conspiracy, preparation or planning to commit a terrorist act or offences involving the production or possession of documents connected with a terrorist act.

388. Apart from R v Alou (No. 4), the cases contained in the Crown’s schedule were R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 69 (Whealy J); Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360; R v Elomar and Ors (2010) 264 ALR 759; [2010] NSWSC 10 (Whealy J); R v Fattal [2011] VSC 681; Director of Public Prosecutions (Cth) v Fattal [2013] VSCA 276; Elomar and Ors v R (2014) 316 ALR 206; [2014] NSWCCA 303; R v Khalid and Ors; R v Al-Kutobi; R v Kiad [2016] NSWSC 1760; Director of Public Prosecutions (Cth) v MHK (A Pseudonym) (No 1) and R v Khaja [2018] NSWSC 238.

389. I have considered these sentencing decisions and have taken them into account in the same way as noted in R v Alou (No. 4) at 436 [283]-[285].

390. The Court was not taken to any comparative cases involving sentencing for offences of the type contained in Counts 2 and 3. Submissions were made by reference to the nature of the offences and the available maximum penalty for those offences.

Section 19AG Crimes Act 1914 (Cth)

391. The offences contained in Counts 1, 2 and 3 are each a “terrorism offence” as defined in s.3(1) Crimes Act 1914 (Cth) and therefore a “minimum non-parole offence” within the meaning of s.19AG(1) Crimes Act 1914 (Cth). Accordingly, if a non-parole period is to be set, the Court is required to fix a non-parole period for each offence which is at least three-quarters of the head sentence.

392. The Court must fix a single non-parole period of at least three-quarters of the aggregate of sentences imposed for two or more offences where (as here) all offences are minimum non-parole offences: s.19AG(2)(b).

393. The operation of s.19AG(2)(b) should not result in a lower head sentence being imposed in an effort to ensure that a specific minimum term can be found to apply: R v Alou (No. 4) at 436 [286].

394. To comply with s.19AG, I will fix individual head sentences for each of the three offences contained in Counts 1, 2 and 3, but a single non-parole period which will represent three-quarters of the total aggregate sentence.

Concurrency, Accumulation and Totality

395. The Offender is to be sentenced for three serious offences. The Crown submitted that a significant degree of accumulation is warranted in order to reflect the total criminality of the Offender. Senior Counsel for the Offender accepted that a level of accumulation was appropriate, but submitted that it ought be more modest than that submitted by the Crown.

396. The criminality involved in Count 1 is different to that contained in Counts 2 and 3. A significant level of accumulation is appropriate as between those two classes of offences.

397. Counts 2 and 3 are similar in nature, with Count 2 involving the actual provision of funds which assisted Shadi to leave Australia and travel to the Middle East to assist Islamic State. As discussed earlier (at [251]-[255]), the offence contained in Count 3 was not capable of having this effect, although the Offender did not know it at the time. He fully intended to commit the offence, but it could not be put into effect as he was subject to an undercover operation at the time. There ought be a degree of accumulation as between Counts 2 and 3.

398. In sentencing the Offender for several offences, the Court will apply the totality principle thereby reviewing the total sentence to consider whether the aggregate term is a just and appropriate measure of the total criminality involved: s.16A(1) Crimes Act 1914 (Cth); Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 528 [25]; ZA v R [2017] NSWCCA 132 at [68]-[84].

Determining the Appropriate Sentences

399. It is necessary to draw together all the objective and subjective factors and the sentencing principles to which reference has been made in these lengthy sentencing remarks.

400. The offence in Count 1 is a very serious offence which led to the death of an innocent citizen. The Offender’s involvement in this offence occurred over a number of days, although he committed no criminal act on the day of the terrorist act itself. In the course of sentencing Alou, I said at R v Alou (No. 4) at 437 [293]:

“It has been said that terrorists who set out to murder innocent victims are motivated by a perverted ideology and that they, and their camp followers, must understand that they are at risk of very severe punishment from sentencing courts: R v Barot at [45]. The Victorian Court of Appeal has observed recently that the objective of terrorists is to ‘strike at the heart of our liberal, democratic and tolerant society’ and that the actions of terrorists are ‘driven by a depraved and evil ideology and mentality which are anathema to the fundamental values of our nation’ with their actions and underlying intent being ‘entirely morally bankrupt and totally cowardly’: DPP (Cth) v MHK at [61]-[62].”

401. Although the Offender’s involvement in Count 1 was less than that of Alou, these sentiments have application to the Offender as well.

402. The offences contained in Counts 2 and 3 are serious examples of crimes of this type for reasons explained earlier in these sentencing remarks.

403. I note that the provisions now contained in s.105A.23 Criminal Code (Cth) apply whereby a continuing detention scheme operates for high-risk terrorist offenders. It is a requirement of that provision that a sentencing court provide a warning to a person at the time of sentence of the existence and operation of that provision and I will do so.

404. The existence of the continuing detention regime after the expiration of a sentence is not to be taken into account in the imposition of the sentence itself: Director of Public Prosecutions (Cth) v Besim and Anor (No. 3) (2017) 52 VR 303; [2017] VSCA 180 at [59].

405. In determining the sentences which I am about to announce, I have taken into account the objective gravity of the offences and the subjective circumstances of the Offender, together with other factors and principles which I have outlined in these remarks. I have also applied the 10% discount allowed for the Offender’s pleas of guilty.

406. For the offence in Count 1 contrary to ss.11.2(1) and 101.1(1) Criminal Code (Cth), taking into account the offence under s.102.3(1) Criminal Code (Cth) for the purpose of s.16BA Crimes Act 1914 (Cth), the starting point will involve imprisonment for 34 years. After application of the 10% discount, there will be a term of imprisonment (after some rounding) of 30 years.

407. For the offence in Count 2 contrary to s.102.6(1) Criminal Code (Cth), the starting point will involve imprisonment for 12 years. After application of the 10% discount, there will be a sentence of imprisonment (after some rounding) of 10 years and six months.

408. For the offence in Count 3 contrary to s.102.6(1) Criminal Code (Cth), the starting point will involve imprisonment for 10 years. After application of the 10% discount, there will be a sentence of imprisonment of nine years.

409. There will be three years’ accumulation as between the sentences on Counts 2 and 3. There will be five years’ accumulation as between the sentence on Count 1 and the remaining sentences. Accordingly, the offences in Counts 2 and 3 will extend the aggregate sentence by a period of eight years.

410. The effective aggregate sentence will involve a head sentence of imprisonment for 38 years. Applying the three-quarter rule for the purpose of s.19AG Crimes Act 1914 (Cth), the non-parole period will be 28 years and six months. Quite apart from the operation of the three-quarter rule, I am satisfied that a period of 28 years and six months represents the minimum period that the Offender should remain in custody for these offences having regard to the justice of the case and the various objects of criminal punishment: Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 at 627-628; Hili v The Queen at 533-534 [40]-[44].

411. The commencement date for the first sentence will be 22 March 2016, the date of the Offender’s arrest.

412. For the purpose of s.105A.23 Criminal Code (Cth), I warn the Offender that an application may be made under Division 105A Criminal Code (Cth) for a continuing detention order requiring him to be detained in a prison after the end of the sentence for the offences.

413. Milad Atai:

1. for the offence under s.102.6(1) Criminal Code (Cth) in Count 3, I sentence you to imprisonment for nine years commencing on 22 March 2016;

2. for the offence under s.102.6(1) Criminal Code (Cth) in Count 2, I sentence you to imprisonment for 10 years and six months commencing on 22 March 2019;

3. for the offence under ss.11.2(1) and 101.1(1) Criminal Code (Cth), and taking into account the offence under s.102.3(1) Criminal Code (Cth) for the purpose of s.16BA Crimes Act 1914 (Cth), I sentence you to imprisonment for 30 years commencing on 22 March 2024 and expiring on 21 March 2054;

4. in accordance with s.19AG Crimes Act 1914 (Cth), I fix a single non-parole period of 28 years and six months commencing on 22 March 2016 and expiring on 21 September 2044.

414. The provisions of s.16F Crimes Act 1914 (Cth) require me to explain the purpose and consequence of the fixing of the non-parole period. The sentence that I have just imposed on you entails a period of imprisonment of not less than 28 years and six months from the date upon which you were arrested, being a period expiring on 21 September 2044. 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

25 August 2023 - Publication restriction lifted.

Decision last updated: 25 August 2023