R v Atik
[2007] VSC 299
•23 August 2007
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| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1544 of 2006
| THE QUEEN |
| v |
| IZZYDEEN ATIK |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 July; 13 and 14 August 2007 | |
DATE OF SENTENCE: | 23 August 2007 | |
CASE MAY BE CITED AS: | R v Atik | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 299 | |
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CRIMINAL LAW – Sentencing – Federal offences – Terrorism offences – Evidence – Expert evidence as to nature of terrorism – Relevance to sentencing – Being a member of a terrorist organisation – Severe mental illness and intellectual disability - Plea of guilty after committal but before trial – Assistance to law enforcement authorities – Undertaking to give evidence – Remorse – ss 102.3(1), 102.7(1) Criminal Code 1995 (Cth); ss 16A, 16A(2)(h), 16E(2)(a), 19(2), 19AG, 21E Crimes Act 1914 (Cth); s 18 Sentencing Act 1991 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Maidment SC with Mr N. Robinson, Mr D. Lane and Ms L. Taylor | Commonwealth Director of Public Prosecutions |
| For the prisoner | Mr M.G. O’Connell | Galbally & O’Bryan |
HIS HONOUR:
Izzydeen Atik is before this Court for sentence, having now pleaded guilty to two counts on an indictment on which he was arraigned, together with 12 others, on 21 December 2006. The counts to which he has now pleaded guilty are in the following terms:
Count 1:That between about 1 July 2004 and about 8 November 2005 at Melbourne and elsewhere he was intentionally a member of a terrorist organisation knowing that that organisation was a terrorist organisation contrary to s 102.3(1) of the Criminal Code1995 (Cth); and
Count 7: That between about 10 September 2004 and about 8 November 2005 at Melbourne he intentionally provided to a terrorist organisation resources, namely making himself available to the organisation as a source of supply, support, information, aid or encouragement, that would help the organisation directly or indirectly prepare for or foster the doing of a terrorist act by arranging air travel, knowing that the organisation was a terrorist organisation contrary to s 102.7(1) of the Criminal Code 1995 (Cth).
The offence charged in Count 1 carries a maximum penalty of ten years’ imprisonment and that charged in Count 7 a maximum penalty of 25 years’ imprisonment.
Although he had originally pleaded not guilty to these charges, in June 2007 without consulting his legal advisers, Atik informed police investigators that he wished to change his plea to guilty on both counts. He also told the investigators that he would thereafter co‑operate with them with respect to the Crown case against his co‑accused.
The Crown case against Atik
The Crown case against Atik is that at some time before 2004 a group or “jemaah” formed around a Muslim cleric called Abdul Nacer Benbrika who lived in Melbourne and taught what he claimed to be a version of Islam, which included the concept of violent jihad[1] or holy war. He sought to justify those teachings by reference to the Koran and other Islamic texts. Violent jihad, put simply, meant, in Benbrika’s terms, the elimination of real or imagined opposition to Islam by the “kuffar” or blasphemous, using violence to achieve that end. Such violence included acts which were undoubtedly acts of terrorism within the meaning of the Criminal Code 1995 (Cth) so that, insofar as the group which was centred on Benbrika espoused his teachings and joined in planning to carry out such acts, the group was a terrorist organisation within the meaning of the Code.
[1]Also jehad, jahad – Arabic: effort, strife, struggle esp. in propagation of Islam.
On the Crown case, Atik began associating closely with Benbrika in the latter half of 2004 and, by early December, was attempting to embrace Benbrika’s teachings by giving the “bayat” or oath of allegiance to him as his guide or spiritual adviser. Although Benbrika refused to permit him to give the bayat the Crown says that by the conclusion of a conversation between Atik and Benbrika on 4 March 2005 Atik had become a member of the group. Thus, alleges the Crown by at least this date he became a member of a terrorist organisation which consisted of Benbrika and his followers and that he did so knowing that the object of the organisation was the pursuit of violent jihad in the Islamic cause.
Although Atik had been involved in the organisation for some considerable time before March 2005 the Crown does not assert that he knew sufficient of the organisation’s objects so as to render him criminally liable under the Code. In particular, it concedes that in the period before March 2005 he was not permitted to be involved in the more clandestine of the group’s discussions and activities. Even after 4 March 2005 he never became part of the innermost committee of the organisation. He was, the Crown says, kept somewhat at arm’s length, even then.
The Crown case is that by becoming a member of Benbrika’s “jemaah” or group in March 2005 and remaining a member from then until his arrest in November of that year he committed the offence alleged against him in Count 1 of the indictment.
The Crown case on Count 7 is that after March 2005 Atik provided himself as a resource to the Benbrika organisation so as to assist it to prepare for or foster the doing of a terrorist act. In particular, he provided a skill, namely the ability to obtain goods and services by dishonest means, especially airline tickets, to be used by other members of the group in furtherance of its aims. The Crown says that he arranged air travel for Benbrika to fly to Sydney on 26 July 2005 and for two others of his co‑accused to fly to Sydney on 27 July, all for the jihadist purpose of the organisation.
The Crown also alleges that it is relevant to the culpability of Atik that even before he became a full member of the organisation and before he fully understood its aims and the methods by which it intended to achieve them he arranged other air travel for members of Benbrika’s circle using fraudulent means. This activity, says the Crown, demonstrates the nature and quality of the resource he was able to provide later when he did fully understand what the organisation was engaged in.
The Crown says that the Benbrika organisation intended to engage in terrorist acts which involved the intentional detonation of explosives and/or incendiary devices and/or the use of weapons to cause the death of or serious injury to other people. The nature of the actions proposed or threatened took them outside concepts of “advocacy, protest, dissent or industrial action” which the Code recognises might excuse what would otherwise amount to terrorist activity.
The Crown alleges that the principal object of Benbrika’s organisation was the promotion of violent jihad; it was the glue which bound the members together. Whatever other meanings the word “jihad” might have in Islamic discourse, the Crown case is that when it was used by Benbrika and his followers it meant only violent acts which fall within the statutory definition of terrorist act contained in the Code. Thus, says the Crown, an intention to engage in violent jihad is, in effect, an intention to engage in a terrorist act or acts.
As proof of the case against Atik the Crown relies upon a large number of electronically intercepted discussions in which Benbrika and his followers, which sometimes included Atik, were participants. These discussions, which were conducted both by telephone and in face‑to‑face conversations, were recorded pursuant to various warrants issued to police investigators. The Crown says that in them Benbrika sought to justify violent jihad by recourse to the Koran and other Islamic religious texts and that in so doing he and his followers fostered or prepared for the performance of terrorist acts. This activity went as far as encouraging members to become martyrs themselves which, he taught, granted them entry to paradise. The Crown says that the pursuit of violent jihad by the Benbrika group was intended to intimidate government (either Australian or foreign) or the public or some section of the public. It relies upon Benbrika’s own language:
If we want to die for jihad we do maximum damage … damage their buildings … damage their lives … just to show them.
In other recorded conversations there were references to the Prime Minister of Australia and to the presence of Australian troops in Iraq in the context of justifying the pursuit of violent jihad in Australia or elsewhere. The Crown alleges that the purpose of the group was to influence the Australian Government against sending troops to Muslim countries. The intention of the group was not just the pursuit of violence, it was the pursuit of violence justified in the name of religion to achieve the purpose of combating those whose views were not perceived to be aligned to those of the group.
The Crown concedes that the evidence against all the accused, including Atik, does not demonstrate any advanced plan to carry out any specific terrorist act on any particular person or target. It alleges that the conversations relied upon reveal a group controlled by Benbrika preparing to undertake a terrorist act of a type and at a time and place to be chosen by him.
The Crown alleges that as early as about September 2004, Atik took an interest in Benbrika’s organisation, its members and the topic of violent jihad. In an intercepted conversation on 21 September to which Atik was a party, Benbrika spoke of the killing of prospective victims of violent jihad using a knife. Atik’s response was to agree enthusiastically with Benbrika’s suggestion. In a number of subsequent intercepted conversations in the second half of 2004, relied upon by the Crown, involving Atik and Benbrika, Atik confirmed his commitment to the objects of the group, even though Benbrika would not permit him to give the bayat on 1 December as he wished. Benbrika appears to have thought he was not sufficiently reliable. A few days after that date, Atik told Benbrika that he thought that other members of the group were not doing enough to promote its objects.
In early 2005, a conversation between Benbrika and Atik was recorded in which aspects of the pursuit of violent jihad were discussed, including the idea of martyrdom. In March, Atik told Benbrika he was going to live in Lebanon and that he would travel under a false name as the police had his passport. This was because he had been apprehended in respect of fraudulent activity in which he had been engaged. He and Benbrika subsequently again discussed violence and the difficulties of acquiring explosives. Over the whole of the period during which the Crown alleges Atik was a part of a terrorist organisation, conversations were intercepted in which similar matters were discussed.
The Crown case as put by the prosecutor before this Court was not contested in any way by Atik. His plea in mitigation, to which I shall shortly turn, is put on a completely different basis. But his concessions do not, of course, establish against any of his co‑accused any of the elements of the crimes upon which they have been indicted. In particular, it is important to emphasise that the fact that Atik had admitted that he was a member of a terrorist organisation does not establish the existence of any such organisation other than for the purpose of his acceptance that he is guilty of the crimes alleged against him. Nor does his acceptance of the Crown case say anything about the involvement of any of his co‑accused in any illegal activity, whether with him or otherwise. They have not been parties to this part of the proceeding, which concerns only Atik’s disposition after his plea of guilty. They have had no opportunity to contest the Crown case or to contest any concession made by Atik which appears to implicate them.
The Expert Evidence
Before leaving the Crown case it is necessary to determine the admissibility of certain expert evidence proffered by the prosecutor on the subject of terrorism. Its admissibility was contested by Mr O’Connell for Atik on the ground of relevance and also on the basis that terrorism was not a sufficiently recognised field of academic study to render expert evidence about it admissible.
The evidence proffered by the prosecutor was, in the first instance, an academic paper entitled The Causes and Characteristics of Contemporary Terrorism written by Associate Professor David Wright-Neville, the founder of the Global Terrorism Research Centre in the School of Political and Social Inquiry of the Faculty of Arts at Monash University. The paper was of 12 pages to which was attached a comprehensive curriculum vitae of Dr Wright-Neville of some eight pages.
After Dr Wright-Neville’s paper was tendered by the prosecutor he was called as a witness. Upon Mr O’Connell’s objection to the paper being admitted into evidence and to the witness’ oral evidence being led before the Court, the paper was provisionally admitted and the prosecutor was permitted to question Dr Wright-Neville on the voir dire. Following Dr Wright‑Neville’s evidence‑in‑chief, Mr O’Connell was permitted to reserve his right to cross‑examine after obtaining instructions. In the event he declined to cross‑examine Dr Wright-Neville but maintained his objection to the admissibility of his opinions concerning terrorism, both as set out in his paper and as expanded upon in his evidence on the voir dire.
David Peter Wright-Neville has economics degrees from Monash University and a PhD from Melbourne University. He has taught at both universities and has worked in the Department of Foreign Affairs and Trade and as an analyst, including on the subject of terrorism, in the Office of National Assessments. He has received many academic distinctions and has published books and academic articles on the subject of terrorism. He has written opinion pieces for daily newspapers and magazines and has served on international bodies concerned with security and terrorism. In short, if terrorism is properly classified as being capable of being the subject of expert evidence, it would be difficult to reject Dr Wright-Neville as an appropriate expert witness. However, having regard to the conclusion I have reached as to the relevance of expert evidence on the issues I must determine in sentencing Atik, there is no need to examine further the interesting and difficult question of the status of terrorism studies as a matter for expert opinion in a curial setting.
Dr Wright-Neville’s paper explains the discipline of terrorism studies and its emergence as a growing field of academic interest, particularly since 11 September 2001. It draws on criminology, psychology and political analysis to attempt to describe, evaluate and predict the actions of terrorists and the organisations to which they belong. The paper proffers what it describes as a growing consensus as to various aspects of terrorism; its relationship to globalisation, its growth from peaceful activism, the forces which shape it and the factors which encourage its proliferation in certain societies and in certain political and economic conditions. It concludes with a number of predictions as to the future of terrorism.
Ms Taylor, the prosecutor who tendered Dr Wright-Neville’s evidence, argued that it was admissible because it would assist the Court by giving context within which the actions of the prisoner may be better understood and the sentencing exercise thereby facilitated. She submitted that questions such as the prevalence of terrorist activity in Australian society, the interconnectedness of global terrorist activity, the threat posed to Australian society by terrorism and a number of related topics would all assist the Court in the task it has to perform. She likened Dr Wright-Neville’s evidence to that of an expert in illicit drugs who might give evidence about their prevalence, their impact on society, the difficulty of detecting their cross-border movement and similar topics. She submitted that all of these matters were relevant to the sentencing exercise.
In R v Pidoto and O’Dea,[2] five judges of the Court of Appeal considered the question of the matters which can be taken into account in a drug trafficking case by a sentencing judge. In particular they considered whether the harmfulness of any particular drug was a relevant sentencing factor. Their Honours concluded, by reference to the quantity-based trafficking provisions of the relevant legislation, that the harmfulness of any particular drug was an irrelevant consideration in sentencing. The Court held that whether expert evidence was available or not it was an error for a sentencing judge to form a view as to the harmfulness of any particular drug. Their Honours quoted from a judgment of Tadgell J in the Court of Criminal Appeal in Zeccola v The Queen[3] concerning the offence of importing a commercial quantity of cannabis. In that case his Honour considered that because the legislature had prescribed penalties by reference, not to the particular drug but by reference to the quantity of a drug which constituted a commercial quantity, the question of the harmfulness of any particular drug was irrelevant. The Federal Court in R v Tait[4] reached a similar conclusion: the Court’s function is to evaluate only the seriousness of the conduct by which the law, as expressed in the statute, has been violated.
[2](2006) 14 VR 269.
[3](1983) 11 A Crim R 192.
[4](1979) 46 FLR 386, 399.
In the instant case the Code describes in precise terms what constitutes a terrorist organisation[5] and what constitutes a terrorist act.[6] It prescribes penalties for being a member of such an organisation[7] and for providing support to such an organisation.[8] Whilst it would have been relevant for the Crown to have tendered evidence that the crimes to which Atik has pleaded guilty had specific particular consequences in this case which might aggravate penalty, the opinion of Dr Wright-Neville is, of course, completely divorced from the criminality of Atik. His opinion is general. It does not enable any conclusions to be drawn about Atik’s criminality or its actual or probable consequences. Dr Wright-Neville’s research suggests that, generally speaking, terrorists are rational, highly motivated and sane. The evidence in this case demonstrates conclusively that Atik is a paranoid schizophrenic of sub-normal or almost sub-normal intelligence.
[5]Section 102.1.
[6]Section 100.1.
[7]Section 102.3(1).
[8]Section 102.7.
Just as evidence as to the intelligence or sanity of murderers or bank robbers in general would be irrelevant to the issues raised in a hearing concerning the appropriate sentence to be imposed on any particular murderer or bank robber, so the evidence tendered is irrelevant to the issues in this case. Mr O’Connell’s objection to the tender of Dr Wright‑Neville’s paper and his subsequent oral evidence will be upheld. That evidence will be excluded from consideration in this proceeding.
Atik’s plea
Izzydeen Atik was diagnosed as schizophrenic in December 2002 whilst serving a sentence in a New South Wales prison. He had sought treatment from a public health psychiatric facility in western Sydney some five months earlier but his incarceration had intervened, thus preventing his being treated earlier. He commenced taking antipsychotic medication and has been prescribed such medication continually since, although he has not always been compliant in taking it. At the time of his diagnosis his symptoms were florid. They included auditory persecutory hallucinations – specifically a voice which he called “Andrew” in his head.
A bundle of medical reports tendered by Atik’s counsel amply attest to his psychiatric problem and its progress, including during the period when he was committing the offences to which he has now pleaded guilty. In June 2004 he was reported upon by a psychiatrist, Dr Harris, who had earlier treated him at Westmead Hospital as being psychotic. The doctor was unsure as to whether Atik was compliant with his medication at that time or not.
In a comprehensive report, written following an assessment of Atik on 15 November 2004, a Ms Natalie Langovski, a psychologist practising in Hurstville in western Sydney, described Atik’s auditory hallucinations in some detail. She noted that he tried to manage his symptoms by assiduous attention to his religion and that, to this end, he had been to Mecca. She described paranoid delusions of reference and of persecution as well as delusions of control. “Andrew” tries to take control of his mind, she noted.
Ms Langovski undertook IQ testing of Atik and found him to be functioning in the extremely low range with a measured IQ of 61 – lower than 99% of the population. He had significant scores across the measures of schizotypal and paranoid pathology. She concluded that he was experiencing a severe mental disorder – probably but one phase of an extended or recurrent schizophrenic pattern. She concluded that he needed immediate psychiatric assistance.
In February 2005 Atik was assessed by a forensic medical officer at the Carlton Police Station in Melbourne to determine his fitness to be interviewed by police in relation to credit card offences. The medical officer noted his psychiatric problems but found him fit to be interviewed whilst advising the police that there should be breaks in the interview every 10 to 15 minutes.
In August 2005 a Melbourne psychiatrist, Dr Andrew Carroll, assessed Atik in preparation for a Magistrates’ Court hearing. He found no evidence of thought disorder at that time although he noted that he had been diagnosed with schizophrenia in 2002. He concluded that Atik must have been taking his medication diligently at that time and was unable to find any direct relationship between Atik’s mental illness and his then offending.
By the time of Atik’s next assessment by Dr Mark Ryan of Forensicare on 8 March 2006, he was in custody on remand for the offences with which this Court is now concerned. Dr Ryan considered Atik to be actively psychotic but coping reasonably well in prison, although the doctor considered that he should be in a mental health facility.
Finally, Atik has been assessed by Dr Lester Walton, a forensic psychiatrist, whose reports of 18 May 2007 and 3 July 2007 are before the Court and who also gave oral evidence. In his first report Dr Walton thought Atik had a well‑established diagnosis of schizophrenia but was fit to plead and to be tried even though he showed a degree of paranoia. Dr Walton expressed concern as to the possibility of a deterioration in Atik’s mental condition if this case was prolonged.
In his second report Dr Walton again confirmed Atik’s psychosis and noted that he had decided to plead guilty and had taken that decision without reference to his legal advisers. Atik complained to Dr Walton of having been manipulated by Benbrika. He said he had now abandoned any political component of his religious beliefs although he was still a Muslim. In his oral evidence Dr Walton explained schizophrenia in some detail, describing it as a very disabling condition which affects most areas of psychological functioning. There is often disturbance of thinking, delusions and bizarre beliefs. Dr Walton considered Atik to have had longstanding psychiatric problems evidenced by severe problems at school which resulted in expulsion and an early decline in social, occupational and interpersonal functioning.
Dr Walton considered that Atik’s psychosis would probably have impaired his capacity to plan, make decisions or to understand the consequences of certain actions. He thought that Atik’s IQ, without having performed any specific testing, was probably a little higher than Ms Langovski had assessed it – perhaps 65 to 75 - but he still thought that he was quite possibly formally intellectually disabled.
None of the psychiatric or psychological evidence tendered on Atik’s behalf was challenged by the Crown. Indeed Dr Walton was not cross-examined by the prosecutor.
On the base of the evidence before the Court it can be confidently concluded that Izzydeen Atik is a young man of very low intellectual functioning who, as well as the disability flowing from that deficiency, has a severe psychiatric illness from which he has suffered for many years – since at least mid-2002 and probably for much longer. That these conditions were long existing and clearly genuine is a necessary inference from the fact that there was placed before the Court evidence of covertly intercepted conversations in which Atik spoke of his auditory hallucinations, not as such, but in terms of “Andrew” and angels who spoke to him and gave him directions.
Both of Atik’s conditions are highly relevant to the sentencing process in this case as the Court of Appeal has very recently reaffirmed in R v Verdins.[9] First, it can be concluded that Atik’s low‑grade intelligence and psychosis both rendered him vulnerable to being recruited into a group such as that with which this case is concerned. His reduced capacity to reason and to appreciate consequences, whilst not completely destroying his capacity to form the necessary intent to commit the crimes which he did, significantly reduce his moral culpability in respect of them. Secondly, his mental illness, particularly the paranoid aspects of it, will render incarceration more onerous than it might be for a more robust individual. This may be especially so having regard to the offences for which he is being sentenced and the likely regime to which he will be subjected.
[9]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
In R v Lodhi,[10] Whealy J detailed the circumstances in which that prisoner would serve his sentence by reason of his classification as a convicted terrorist. Because of earlier proceedings in the course of this case, where this Court heard evidence of the conditions under which Atik and his co‑accused were then being held as unconvicted remand prisoners, I am aware that similar conditions to those imposed on Lodhi by the New South Wales prison system will, or are likely to be, imposed on Atik in Victoria for similar reasons. Unlike Lodhi, however, Atik is mentally ill and of subnormal or almost subnormal intelligence.
[10](2006) 199 FLR 364.
Thirdly, Atik’s psychological and psychiatric disabilities make him less of an appropriate subject for general deterrence. The concept of general deterrence must, in his case, be sensibly moderated. See R v Tsiaras;[11] R v Mooney;[12] Anderson v The Queen;[13] R v Yaldiz.[14]
[11][1996] 1 VR 398.
[12]Unreported, Full Court Supreme Court of Victoria, 21 June 1978.
[13][1981] VR 155.
[14][1998] 2 VR 376.
Atik’s personal circumstances
The prisoner’s personal circumstances are derived from a document appended to his counsel’s submissions. It has not been contested by the Crown, and so can be relied upon, at least in general terms, as being sufficiently accurate for sentencing purposes.
Izzydeen Atik was born in Australia of Lebanese migrant Muslim parents on 10 May 1980. He is accordingly 27 years of age. He is the fourth of eight children. His parents came from an agricultural background; they had no industrial work skills and little English when they arrived. They settled in western Sydney.
Atik himself, from an early age, felt uncomfortable around people. As Dr Walton said, this may well have signalled the beginning of his psychosis. He attended two New South Wales state high schools, Birrung Boys’ High School and Granville Boys’ High School but was eventually expelled from both. He finally left school at about the age of 15.
At about the time he left school finally Atik’s mother took him to see a Muslim sheik who advised him that his symptoms should not be disclosed publicly or he would be liable to be institutionalised. At about this time he went to work for an older brother, Mare, who was a cabinet maker who has since died of a liver disease. Atik worked for him for about five years.
In 1997 Atik visited a cousin in Melbourne and met a young Lebanese woman whom he later married. The marriage resulted in the birth of a boy, Mohammed, in 2000. Unsurprisingly the marriage was not happy. Atik began using cannabis and developed a gambling problem. After less than two years of marriage the couple separated.
Prior to committing the offences with which this Court is now concerned, Atik acquired a number of prior convictions, as a result of which he spent some time in prison in New South Wales. It was whilst in prison for breaching a suspended sentence that his psychiatric problem was eventually diagnosed.
In August 2003, Atik returned to Melbourne to be nearer his son. He lived with relatives including one, Ziggy El-Kurdi, who was quite religious. Atik began to follow his example and became more religious himself. At the end of 2003 he undertook the Haj. Subsequently he was dealt with by the Broadmeadows Magistrates’ Court for breach of an intervention order relating to an attempt to see his son when he was enjoined from doing so. Subsequently he had his first contact with Benbrika and the other members of the jemaah who, he now admits, eventually constituted a terrorist organisation. He continued to associate with the organisation and committed the offences for which he is now to be sentenced as already described.
Atik’s assistance to the authorities
In July this year, not only did Atik contact investigators from his prison cell and tell them he wished to plead guilty to the offences upon which he had been indicted, but he also agreed to assist them in the prosecution of his co‑accused and the investigation of other possible terrorist activity. To this end, shortly after he was re‑arraigned and changed his plea to guilty to both counts on 5 July 2007, he made two long statements to Federal Police officers, totalling almost 200 pages. It is accepted by the Crown that these statements provided significant assistance to investigators and prosecutors, not only in respect of their case against Atik’s co‑accused but also in respect of another case being prosecuted in Sydney. He is entitled to have these facts taken into account by virtue of s 16A(2)(h) of the Crimes Act 1914 (Cth) in mitigation of the penalty to be imposed upon him.
Further, on the hearing of his plea, Atik gave an undertaking on oath to co‑operate in future with law enforcement agencies as contemplated by s 21E of the same Act. He agreed to give evidence against his co-accused in this case if required. He acknowledged that undertaking in writing and acknowledged that if he failed to so co‑operate the Director of Public Prosecutions, pursuant to that provision, could appeal the sentence imposed upon him by this Court to the Court of Appeal on the ground of his breach of undertaking. In fixing Atik’s sentence, this undertaking will also be taken into account and the adjustment provided by s 21E(1) applied to the sentence he would otherwise have received, absent that undertaking. Accordingly, he is entitled not only to the benefit of s 16A(2)(h) but also to the conditional benefit of s 21E of the Crimes Act 1914 (Cth). See R v Kwong Chin Tan,[15] R v Hodgson,[16] and R v Gladkowski.[17]
[15](1995) 78 A Crim R 300, 303.
[16](2002) 84 SASR 168.
[17](2000) 115 A Crim R 446.
That the encouragement of informers to inform is in the public interest is recognised in sentencing regimes in many, perhaps most, jurisdictions. Under section 21E of the Crimes Act 1914 (Cth) the process by which a discount is applied to a sentence, which would otherwise be appropriate because an offender has undertaken to give evidence for the Crown, must be rendered transparent by the sentencing court. This reduction, which is distinct from the consideration required to be given where an offender has given past co-operation with law enforcement agencies pursuant to s 16A(2)(h), will be substantial in this case and will be applied transparently.
Involvement in these offences
Mr O’Connell submitted that Atik’s involvement with Benbrika and his group, which really commenced in about February or March 2004, was characterised by three things. First, that being a Muslim was to be part of a violent struggle or jihad against Western domination. Secondly, that being a Muslim meant accepting what is sometimes called Salafi-jihadism, an absolutist, scripturally literalist approach to Islam. Thirdly, that he had to accept Benbrika’s teachings without question. He referred to the views expressed by Benbrika in an interview between him and ABC journalist Nick McKenzie contained in the depositional material in this case as well as to a large number of intercepted conversations which, he submitted, demonstrated Benbrika’s power over Atik. This power was significantly enhanced, he argued, because of Atik’s low IQ and mental illness.
Mr O’Connell relied upon another selection of intercepted conversations as illustrating the way in which Benbrika’s jemaah operated and Atik’s somewhat limited role in it. He conceded the factual basis for Atik’s guilt of both offences and emphasised the risks Atik took in turning Queen’s evidence. He had to break ranks with the group and change his whole religious outlook. He put himself and his family at risk of physical harm.
Mr O’Connell argued that although Atik did not change his plea until some time after committal, his plea of guilty should be regarded as an early plea in the circumstances. He said that it has considerable utilitarian benefit to the Crown because it will shorten and simplify the trial of Atik’s co‑accused and, in any event, when combined with the assistance Atik has provided and has promised to provide in future to the Crown, clearly demonstrates contrition, remorse and a complete change of heart on his part. A plea of guilty facilitates the course of justice: Cameron v The Queen.[18]
[18](2002) 209 CLR 339.
Finally, Mr O’Connell submitted that the need for denunciation in a case such as this is somewhat diminished as a sentencing factor because of Atik’s change of plea by which he himself has denounced his crimes. Although there is force in this argument, by the sentence imposed the Court must denounce and be seen to denounce terrorist conduct such as he has engaged in.
The Crown case on sentence
The prosecutor emphasised that the legislative scheme pursuant to which Atik was indicted, although enacted by a Federal statute, was nonetheless a scheme approved by all State Parliaments. They all referred power to the Commonwealth, pursuant to the Constitution, to overcome any limitations on Commonwealth power which might have impeded the scheme’s enactment. He also pointed to Australia’s international obligations with respect to terrorism and the numerous treaties and other instruments to which Australia is a party and which impose obligations on this country to enact laws which seek to eradicate terrorist activity.
The Crown position is that general and specific deterrence and denunciation should be at the forefront of sentencing in terrorist cases. The prosecutor referred to the Russell Street bombing case and submitted that because the motive of terrorists is to coerce or intimidate governments or the community in pursuit of a political, religious or ideological cause another dimension was added to what was already a heinous crime. He referred to the judgment of Gummow and Crennan JJ in Thomas v Mowbray[19] where their Honours cited the terrorist motivation as being the factor which distinguishes acts of terrorism from criminal acts in pursuit of private ends.[20] The prosecutor referred to the political ends of terrorist groups and to the harm they have caused in recent times in places such as New York, Washington, London, Madrid, Bali and Jakarta. He referred to R v Demirian[21] and to Whealy J’s sentencing remarks in R v Lodhi.[22]
[19](2007) 237 ALR 194, 213.
[20]Thomas v Mowbray (2007) 237 ALR 194, 213. See also Hayne J at 309.
[21][1989] VR 97.
[22](2006) 199 FLR 364.
The prosecutor referred to Part 5.3 of the Code, and Parliament’s intention to render criminal activities which were carried out at a point in time long before any act of violence, and even before the offender has decided on a target or a means of attacking it. Thus certain activities can be criminal long before they could constitute the actus reus of an attempt to commit a crime at common law. He referred to Spigelman CJ’s observations to this effect in Lodhi v The Queen,[23] and pointed out that the crime of providing resources to a terrorist organisation carries a maximum penalty of 25 years – the second highest penalty fixed for a terrorism offence under Part 5.3 of the Code.
[23](2006) 199 FLR 303, 318.
As far as Atik personally is concerned, the Crown argued that he was valuable to the Benbrika organisation both as a member and as someone able, because of a facility for credit card fraud, to provide material assistance. The Crown pointed to the assistance he gave the Benbrika organisation by fraudulently arranging airline tickets on 26 and 27 July 2005 for Benbrika and others to travel to Sydney, and pointed to his having provided airline tickets on earlier occasions, as being relevant to demonstrating his capacity to be a valuable resource for the organisation.
The Crown submitted that the weight to be given to mitigating factors in this case must be considered in light of the length of time Atik was a member of the terrorist organisation, the fact that he did not plead guilty until 19 months after his arrest, that the Crown case against him was strong and that his prior convictions suggested a diminished prospect of rehabilitation.
Finally, although in its written outline the Crown submitted that there should be substantial cumulation of the sentences on each count, in his address Mr Maidment SC conceded that substantial concurrency would be appropriate.
The sentence
The Federal sentencing regime commences with an injunction that the Court must fix a sentence that is of a severity appropriate in all the circumstances of the offence. In doing so it must take into account such of the matters set out in s 16A(2) of the Crimes Act 1914 (Cth) as are relevant in the particular case. Further, before imposing a sentence of imprisonment the Court must be satisfied, after considering all other available sentencing options, that no sentence other than imprisonment is appropriate. I am so satisfied.
The nature and circumstances of the offences are not contentious in this case. They have already been described in detail. Atik was a member of the terrorist organisation from March to November 2005 and he provided support to that organisation by facilitating the travelling of three members of the organisation to Sydney on 2 days in July by fraudulently obtaining airline tickets.
Atik’s contrition and remorse, as demonstrated by his plea of guilty and his assistance to the authorities, must be taken into account. In this case, despite his change of heart having occurred 19 months after his arrest, these factors are mitigating factors of a high order – particularly because of his assistance to the law enforcement agencies in the investigation of the offence to which he has pleaded guilty and other offences allegedly committed by his co‑accused. Further, these matters must be considered separately to the circumstance that he has undertaken to provide further assistance and give evidence if required in this and other cases.
Atik’s change of plea is also relevant to the question of rehabilitation. If, as I accept, Atik’s plea of guilty and co‑operation with the authorities indicates a genuine contrition and remorse on his part, it is highly unlikely that he will offend again, at least in the manner he has on these occasions.
The Court must also take into account the question of specific deterrence, by imposing a sentence which, despite Atik’s psychiatric and intellectual problems, must be such as to ensure that he does not try to engage in terrorist activities in future. General deterrence to the extent appropriate must also be taken into account in accordance with the principles already discussed. He must be punished for the criminality in which he has engaged.
The Crown placed some emphasis in its submissions on the question of protection of the community. In this instance, having regard to Atik’s contrition, the protection of the community can be adequately accommodated by a sentence which is directed towards ensuring that he does not offend again, rather than one which incarcerates him for a very long period.
Atik has a number of prior convictions for driving and dishonesty offences and one for breaching an intervention order. Their only relevance in sentencing for these offences is that the support he gave to the terrorist organisation of which he was a part was rendered possible because he had acquired skills in the fraudulent use of credit cards or credit card numbers. Also these prior convictions deprive him of a clean record and an otherwise unblemished character. They must be taken into account to the extent appropriate.
Atik’s family, or some members of it, including his mother, have attended his plea hearing. He has a son of relatively tender years by his now estranged wife. As she lives in Melbourne it may be possible for him to maintain some contact with his son whilst in prison. No specific matters were raised by Atik’s counsel as to the effect of imprisonment upon his family.
Atik has been in custody since 10 November 2005. Mr O’Connell submitted that his total sentence and non‑parole period should be structured so as to enable his release on parole either immediately or very shortly. If by this submission Mr O’Connell was arguing that a non‑parole period of two years would be appropriate in Atik’s case, I agree with Mr Maidment for the Crown that such a sentence would be manifestly inadequate. Having regard to s 19AG(2) of the Crimes Act 1914 (Cth), a non‑parole period of two years would mean a maximum possible total effective head sentence of two years and eight months. Such a head sentence would also be manifestly inadequate.
Having regard to the acts performed by Atik in committing each of these offences – being a member of the organisation for a lengthy period but performing only a few relevant acts of assistance over a relatively short period – and balancing those acts against the disparity in maximum sentences applicable – ten years as against 25 years – it is appropriate that the same sentence be imposed in respect of each offence. It is also appropriate that as both offences were committed as part of the same course of criminal conduct there should be substantial, but not total, concurrency of those sentences, to be effected in accordance with s 19(2) of the Crimes Act 1914 (Cth).
The head sentences which would be properly imposed were it not for the undertakings given by Atik in accordance with s 21E of the Crimes Act 1914 (Cth) is imprisonment for seven years on each count. To achieve partial cumulation it is appropriate that six months of the sentence imposed in respect of Count 7 be served cumulatively on the sentence imposed in respect of Count 1, so that the total effective sentence would be 7 ½ years. Because of Atik’s undertakings, this total effective sentence should be reduced to 5 ½ years (or each of the sentences of 7 years referred to should be reduced to 5 years, with 6 months of the sentence referable to Count 7 cumulated upon the sentence referable to Count 1, resulting in a total effective sentence of 5 ½ years). Thus the aggregate of the sentences imposed within the meaning of s 16 (1) of the Crimes Act 1914 (Cth) will be 5 ½ years. To achieve cumulation in the manner directed by s 19(2) of the Crimes Act 1914 (Cth), the sentence imposed in respect of Count 1 will commence on 23 August 2007 and that imposed in respect of Count 7 will commence on 23 February 2008.
Having regard to all of the matters referred to and, in particular, to Atik’s mental state, it is appropriate to fix a non-parole period in this case so that he can serve the last period of his sentence under supervision in the community if he merits parole. By virtue of s19AG of the Crimes Act 1914 (Cth), any non‑parole period fixed in respect of the offences to which Atik has pleaded guilty must be at least three quarters of the aggregate of the sentences imposed. In this case the non-parole period should be the minimum allowable, that is to say three quarters of the aggregate sentence imposed. Were it not for Atik’s undertakings given in accordance with s 21 E of the Crimes Act 1914 (Cth), the appropriate non-parole period would be three quarters of 7 ½ years or 2053 days, or five years, seven months and 15 days. The non-parole period actually fixed in respect of the aggregate sentence will be three quarters of 5 ½ years, or 1505 days or 4 years, 1 month and 14 days.
By virtue of s 16E(2)(a) of the Crimes Act 1914 (Cth) and s 18 of the Sentencing Act1991 (Vic), the period which Atik has already served whilst on remand in respect of these offences must be reckoned as a period of imprisonment already served in respect of the sentences now imposed. That period is 652 days. Finally, having regard to the fact that the concept of imprisonment with hard labour is unknown in Victoria, the sentence imposed, for the purposes of s 18 (1) of the Crimes Act 1914 (Cth) will be without hard labour.
Accordingly, the order of the Court is:
1. That Izzydeen Atik be sentenced to 5 years’ imprisonment in respect of Count 1 on the indictment, such sentence to commence on 23 August 2007;
2. That he be sentenced to 5 years’ imprisonment on Count 7 on the indictment, such sentence to commence on 23 February 2008;
3. That there be a non-parole period, in respect of the aggregate sentence of 5 ½ years, of 4 years, 1 month and 14 days; and
4. That 652 days be reckoned as having been served in respect of the sentences imposed in paragraphs 1 and 2.
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