R v Azari (No 12)

[2019] NSWSC 314

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Azari (No 12) [2019] NSWSC 314

Hearing dates:

1 February 2019

Decision date:

29 March 2019

Jurisdiction:

Common Law - Criminal

Before:

N Adams J

Decision:

The offender, Omarjan Azari, is convicted and sentenced as follows:

 

(1) Convicted of offences under ss 11.1(1)/101.6(1) and 102.6(1) of the Criminal Code (Cth).

 

(2) For the offence under s 101.6(1) of the Criminal Code (Cth), sentenced to imprisonment for 12 years commencing on 18 September 2014.

 

(3) For the offence under ss 11.1(1) and 102.6(1) of the Criminal Code (Cth), and taking into account two further offences under s 102.6(1) of the Criminal Code (Cth) for the purpose of s 16BA of the Crimes Act 1914 (Cth), sentenced to imprisonment for 8 years commencing on 18 September 2024.

 

(4) In accordance with s 19AG of the Crimes Act 1914 (Cth), a single non-parole period of 13 years and 6 months fixed commencing on 18 September 2014 and expiring on 17 March 2028. The head sentence of 18 years imprisonment will expire on 17 September 2032.

(5) Pursuant to s 105A.23 of the Criminal Code (Cth), the offender warned that an application may be made under Division 105A of that Code for a continuing detention order requiring the offender to be detained in a prison after the end of his sentence for the offence under s 101.6(1) of the Criminal Code (Cth).

Catchwords:

CRIMINAL LAW – sentence after trial – terrorism offences – conviction for doing an act in preparation for, or planning, a terrorist act or acts – Criminal Code (Cth), s 101.6(1) – guilty plea to attempting to make funds available to terrorist organisation – Criminal Code (Cth), ss 11.1(1) and 102.6(1) – where offender was pursuing the agenda of Islamic State – where offender made funds available to Islamic State to fund foreign fighters – where offender participated in intercepted telephone conversation with senior Islamic State member discussing plan for domestic terrorist attacks

Legislation Cited:

Crimes Act 1914 (Cth), ss 3(1), 16A, s16BA, 17A, 19AG
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Administration of Sentences) Regulation 2014 (NSW)
Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)
Criminal Code Act 1995 (Cth), ss11.1(1), 101.6(1), 102.6(1)
Evidence Act 1995 (NSW)

Cases Cited:

Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1991 (No 1 of 2002); (2002) 56 NSWLR 146; (2002) 137 A Crim R 180; [2002] NSWCCA 518
Benbrika v R (2010) 29 VR 593; [2010] VSCA 281
Director of Public Prosecutions (Cth) v MHK [2017] VSCA 157
DPP (Cth) v Besim [2017] VSCA 158
Elomar v Regina [2014] NSWCCA 303; (2014) 316 ALR 206
Johnson v The Queen (2004) 78 ALJR 616
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Postiglione v The Queen (1997) 189 CLR 295
Regina v Touma [2008] NSWSC 1475
R v Agim Kruezi, unreported, Supreme Court of Queensland, 31 July 2018
R v AH [2018] NSWSC 973
R v Alou (No. 4) [2018] NSWSC 221
R v Al-Kutobi; R v Kiad [2016] NSWSC 1760
R v Atai (No. 2) [2018] NSWSC 1797
R v Azari (No 1) [2017] NSWSC 404
R v Azari (No 2) [2017] NSWSC 515
R v Dennison [2011] NSWCCA 114
R v Elomar (2010) 264 ALR 759
R v Fattal [2011] VSC 681
R v Khaja (No 5) [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 691
R v Lodhi [2007] NSWCCA 360; (2007) 179 A Crim R 470
R v Isaacs (1997) 41 NSWLR 374
R v Sulayman Khalid; R v Jibryl Almaouie; R v IM [2017] NSWSC 1365
The Queen v MHK [2016] VSC 742
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
The Queen v Sevdet Besim [2016] VSC 537
Xiao v R [2018] NSWCCA 4

Category:

Sentence

Parties:

Regina (Crown)
Omarjan Azari (Offender)

Representation:

Counsel:
L Crowley QC with B Power (Crown)
B Hughes SC with M Curry (Offender)

  Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Ryan & Payten Criminal Law Specialists (Offender)

File Number(s):

2014/274649; 2014/368436

Publication restriction:

Nil

Common Law Division Supreme Court

New South Wales

JUDGMENT ON SENTENCE

The offences

1. Omarjan Azari stands to be sentenced for two terrorism offences he committed in Sydney in 2014 arising out of his support for the terrorist organisation Islamic State, a declared terrorist organisation.

2. On 16 December 2015, he pleaded guilty in the Local Court to a charge that between about 18 July 2014 and about 18 September 2014 at Parramatta and elsewhere he attempted to make US$9000 available, directly or indirectly, to Islamic State knowing that it was a terrorist organisation. This offence contrary to ss 11.1(1) and 102.6(1) of the Criminal Code (Cth) carries a maximum penalty of 25 years imprisonment. I shall refer to this count as the “the funding offence”.

3. On 11 October 2018, the offender was arraigned before me on an indictment alleging that on 15 September 2014, at Parramatta, in the State of New South Wales, he did an act in preparation for, or planning, a terrorist act or acts, namely he did participate in a telephone conversation with Mohammad Ali Baryalei in which he discussed a plan for a terrorist attack in Australia. The offender pleaded not guilty to the charge and a trial proceeded before a jury. On 2 November 2018, the jury returned a verdict of guilty. This charge, brought pursuant to s 101.6(1) of the Criminal Code, carries a maximum penalty of life imprisonment. For ease of reference I shall refer to this count as the “the planning offence”.

4. In addition to these two offences, the offender also makes admissions pursuant to s 16BA of the Crimes Act 1914 (Cth) in relation to two further funding offences under s 102.6(1) of the Criminal Code and asks the court to take them into account when passing sentence for the funding offence. Those two offences relate to his actions on 6 and 7 August 2014 when he arranged for a total of $6000 to be transferred to Pakistan intending for it to be made available, directly or indirectly, to Islamic State.

The facts on sentence

5. It is necessary for me to determine the facts upon which the offender is to be sentenced in relation to both offences. In relation to the planning offence the facts must be consistent with the verdict of the jury: R v Isaacs (1997) 41 NSWLR 374 at 377–378. I may not take facts into account in a way adverse to the interests of the offender unless they are established beyond reasonable doubt, whilst it is sufficient that facts favourable to the offender be established on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ).

6. No statement of facts was tendered on sentence in relation to the funding offences. It was submitted that I would find the facts in relation to these three matters based on the trial evidence as, consistent with his plea of guilty, the offender fully admitted the funding offences and those admissions were before the jury.

7. The Crown case at trial relied upon surveillance evidence, lawfully obtained intercepted telephone calls which were played in court, expert evidence from interpreters and a scholar in Middle Eastern politics, police evidence, the evidence of two civilian witnesses known by the pseudonyms M2 and Ahmed Hussain and two separate statements of formal admissions made by the offender under s 184 of the Evidence Act1995 (NSW). The offender also gave evidence at his trial and was cross-examined. The facts upon which the offender stands to be sentenced have been found by reference to all of the evidence called at the trial.

8. The evidence establishes that in 2013 the offender attempted to travel to Syria to fight with the terrorist organisation Islamic State but was prevented from doing so. In 2014, he attempted to provide funds to Islamic State in Syria and was in frequent telephone contact with a senior Australian Islamic State member who was then in Syria, Mohamed Ali Baryalei. On 15 September 2014, he participated in a telephone conversation with Baryalei in which terrorist acts to be committed in Australia were planned.

9. Expert evidence was adduced at the trial concerning the emergence of the terrorist organisation Islamic State against the backdrop of the events in Syria in 2011 which developed into what became known as the Syrian Civil War. In around 2012, the organisation known as the Islamic State in Iraq (“ISI”), which was an affiliate of Al-Qa’ida created a group in Syria called “Jabhat Al-Nusra”. In April 2013, Abu Bakr Al-Baghdadi declared that Jabhat Al-Nusra was independent of Al-Qa’ida and it changed its name to ISIS or ISIL and eventually Islamic State. This resulted in a split between Islamic State and Jabhat Al-Nusra.

10. The Australian Government declared a number of groups operating in Syria at that time as being terrorist organisations under the Criminal Code. Jabhat Al-Nusra was declared a terrorist organisation in June 2013, ISIL (“Islamic State of Iraq and the Levant”) was declared a terrorist organisation on 14 December 2013 and Islamic State was listed as a terrorist organisation on 11 July 2014.

11. Islamic State’s objective was to create a caliphate, that being, a geographical area in parts of Iraq and Syria ruled by a caliph or Islamic religious leader. It declared a caliphate on 29 June 2014 in relation to areas it controlled which were mostly comprised of western and north-western Iraq and eastern and parts of north-eastern Syria. Islamic State went further than simply promoting extremist religious views – it promoted intolerance to those who did not conform to those views through extreme violence.

12. Islamic State called for Muslims to travel to Syria and Iraq to create the perfect Islamic State and fight to establish it. It did so by using social media networks to convince young Muslims that they had a religious obligation of “fard-al’ayn” to undertake jihad or armed struggle against the forces of oppression. Foreign fighters from countries around the world travelled to Syria and Iraq to enter into the Syrian conflict particularly with Islamic State and Jahbat Al-Nusra.

13. In addition to the arrival of foreign fighters in Syria and Iraq, money was being sent from Western nations to support those foreign fighters on the ground. This was facilitated in a number of ways including money transfers through currency exchange businesses.

The offender expresses support for Islamic State

14. Whilst these events were unfolding in Syria, the offender was a young man residing in Sydney. He was born in Afghanistan in either 1992 or 1994. He came with his family to Australia through Pakistan on a humanitarian visa when he was either 6 or 8 years’ old. He is now an Australian citizen. He was raised by his parents as a Muslim and he described himself as being “devout” throughout high school. He gave evidence that when the Syrian War commenced in 2011 he began developing an understanding of politics. In about 2012, he began preaching his faith publically in Parramatta. It was during this time as a “street preacher” that the offender came into contact with Baryalei.

15. Baryalei was also an Australian citizen born in Afghanistan. After working as a bouncer in Kings Cross and then appearing as an extra on the television show Underbelly: The Golden Mile he became a devout Muslim. In 2012 both Baryalei and the offender would meet every Sunday street preaching.

16. In April 2013, Baryalei travelled to Syria via Turkey and briefly joined Jabhat Al-Nusra. Shortly after Abu Bakr Al-Baghdadi declared the existence of the Islamic caliphate, Baryalei joined Islamic State.

17. Meanwhile, back in Australia, the offender also became supportive of Islamic State. He became involved with a number of other men in Sydney who shared his radical religious and political views. These men were also supportive of Islamic State and other militant Islamist groups such as Jabhat Al-Nusra. They referred to their group by the word “shura”, which is the Arabic word for a consultative council or body. The senior member of the shura was Hamdi Alqudsi who was in regular communication with Baryalei in Syria. The members of the shura included Tyler Casey, Ali Al-Talebi, Milad Atai, Ahmed Saiyer Naizmand, Kawa Alou, Waris Azari (the offender’s brother) and others. During the period from 2013 until the offender’s arrest on 18 September 2014 the shura showed its support for Islamic State by meeting regularly, travelling to Syria or Iraq to fight with Islamic State or Jabhat Al-Nusra, collecting funds to make them available to those wishing to travel to join Islamic State and liaising with Baryalei in Syria.

18. Those in the shura were given or took “kunya” names. Evidence was called that a kunya name is a type of nickname in Arabic. A kunya name is most commonly given when a person has a child and the kunya name describes the person as the parent of that child. The kunya name is derived from placing the word “Abu” (meaning father) before the name of his child. All of the members of the shura who supported Islamic State took a kunya name even if they did not have children. A schedule of these names was tendered at the trial. Relevantly, the offender was known as Abu Yazid and Baryalei was known as Abu Omar. The members of the shura are often referred to by their kunya names in the intercepted telephone calls and surveillance device recordings.

19. I am satisfied that these members of the shura adopted particular kunya names so as to avoid detection and show their support for Islamic State.

Events in 2013

20. Baryalei was in frequent telephone communication with Hamdi Alqudsi whilst he was in Syria throughout 2013. Members of the shura were able to travel to Syria assisted by Alqudsi in Sydney and Baryalei in Syria. Throughout 2013 the offender continued to meet with Alqudsi and other members of the shura.

21. Ahmed Hussain was a member of the shura at that time. He gave evidence for the Crown at the trial having pleaded guilty and been sentenced in relation to unrelated terrorism offences. He gave evidence, which I accept, that he, the offender and Naizmand had originally planned to travel to Afghanistan to engage in fighting for the Taliban. This plan changed in 2013 when the men were offered the opportunity through the shura to travel to Syria instead. The shura obtained money for its members to travel to do so. There were a number of meetings at Alqudsi’s home and elsewhere where such travel was discussed. It was arranged that the offender would join Baryalei’s group in Syria. Hussain, Naizmand and the offender were each given $7000 by Alqudsi. They were to travel in smaller groups to avoid detection. Members of the shura started travelling to Syria and some were successful in doing so.

22. The offender signed his passport application in 3 April 2013. On 29 June 2013, the offender, Hussain and Naizmand booked return flights to Singapore so as to mislead the authorities into believing that they were intending to return to Australia when in reality they were planning to travel to Turkey and then into Syria. It was proposed that the three men would fly to Singapore on 2 July 2013.

23. The authorities became aware of the proposed travel by the offender and his co-travellers and attended all of their homes. On 12 August 2013, the Department of Foreign Affairs and Trade issued a letter to the offender advising him that his passport had been cancelled due to suspicion that he would be likely to engage in conduct that might prejudice the security of Australia or a foreign country if he were to hold an Australian passport.

24. Hamdi Alqudsi attempted to travel to Syria in late 2013 but was arrested on 3 December 2013 and charged for various offences under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (now repealed). Alqudsi was released on conditional bail with one of the conditions being “to not make any international phone calls or communicate with anyone overseas by any means”. One of the bail conditions, as varied on 13 December 2013, required him “to provide his mobile phone number to the Australian Federal Police and that be the only phone number he uses”.

25. I am satisfied that, sometime after Alqudsi was arrested, the offender assumed the role of communicating with Baryalei by mobile telephone on behalf of the shura and reporting back to Alqudsi.

Events in 2014

26. The offender continued to meet with the other members of the shura in 2014. On 15 May 2014, his older brother Waris Azari flew to Port Moresby. Although his precise travel arrangements thereafter are unclear, Waris Azari subsequently joined Islamic State in Syria.

27. By July 2014 the offender and other members of the shura were under close surveillance by authorities. A surveillance schedule was tendered at the trial outlining the offender’s movements during this time. That evidence showed that he spent time with other members of the shura at the Parramatta Mosque, at Arabic bookshops and playing soccer. Some of the surveillance during this period also records the offender’s attempts to transfer funds to Islamic State.

The funding offence

28. On 18 July 2014, between about 4:38 pm and 4:47 pm, the offender and Naizmand were recorded by CCTV converting Australian currency notes in a pink plastic bag into US currency notes at the Red Rate Money Exchange in Auburn.

29. On 25 July 2014, at about 11:48 pm, a man referred to as “Shabir Ahmad” telephoned the offender from Pakistan and the two discussed what was required for the offender to enable funds to be sent to him in Pakistan. The offender told him that the shura had agreed to send $3,500 to him.

30. On 28 July 2014, Baryalei telephoned the offender. As with all of the telephone conversations between Baryalei and the offender after that time, they were conducted in English and Dari with some Arabic expressions also used. A dispute arose during the trial as to whether 28 July 2014 was in fact the first time that the two men had ever spoken on the telephone after Alqudsi’s arrest. The offender claimed that it was, whereas the Crown case was that there must have been prior communication between the two men given the content and tone of this first recorded telephone call. I am satisfied that the reference in this call to matters earlier discussed establishes that this was not the first telephone conversation between the two men after Alqudsi’s arrest. Beyond that, it is not possible for me to be satisfied precisely when it was that such contact commenced. I am satisfied that it was some time before 28 July 2014.

31. In the 28 July 2014 telephone conversation Baryalei told the offender that he was busy working with his “commander”. The offender told him he had been in religious seclusion in Auburn and that he was storing some money at his home. I am satisfied this is a reference to the funds he had exchanged at the Red Rate Money Exchange on 23 July 2014. Baryalei told him he was “strapped” and in need of the funds and they discussed arrangements for the funds to be transferred to him. The offender told him that he was attempting to contact a person who would perform the money transfer.

32. Other matters discussed included Baryalei telling the offender of an upcoming “martyrdom operation” involving three “brothers” that would occur later that day or the following day. The two men also discussed the whereabouts of persons who had travelled to Syria and were fighting against the “Nussayris” (Syrian government troops) at an airport. Baryalei asked the offender whether he had spoken to his brother Waris and the offender replied that he had not. Baryalei then stated that: “there’s a lot of work on, you know, here in both places, in both the land of AI-Sham, in both Syria and Iraq is busy. A lot – a lot of things going on”. The offender spoke of Boko Haram and noted how it had given the pledge of allegiance to Abu Bakr Baghdadi. They also discussed how some members of the Islamic community in Australia were critical of Islamic State.

28. On 28 July 2014 at about 11:13 pm, the offender’s brother Waris Azari telephoned his family home in Sydney from Syria. The offender was present at that time. Waris spoke to his parents and also spoke to the offender. He told the offender that he had completed a period of training and had been selected by “the State” for a further three months of “special forces” training which he had commenced at Tabqah, near Raqqah. The offender advised Waris that “Abu Omar” (Baryalei) would be in Raqqah shortly. When Waris spoke to his mother she was clearly upset. She begged him to go to Afghanistan and get married instead. The offender passed on greetings from the “boys” in the shura. Waris told the offender that his kunya name was “Abu Bakr Al-Australi” and that “everyone changes their name here…if they come”.

29. The offender next spoke to Baryalei on 31 July 2014. That conversation focussed on arranging the transfer of funds to Islamic State. The offender asked Baryalei whether he knew of any women in Australia who could accompany another member of the shura to depart Australia to join Islamic State, so as to avoid suspicion. The offender told Baryalei about his conversation with Waris and his selection for the special forces. He said that “out of three thousand people he got chosen amongst the sixty to be in this special force”. He indicated that at the completion of the training Waris wanted to join Baryalei because “he’ll be trained properly”. The two men also discussed their hopes that their planned activity involving the sending of money would avoid detection by Australian authorities, with the offender saying “here it’s getting very, very hard, brother”. The offender then told Baryalei about “the other big brother” sending greetings to Baryalei and that there was stuff that he wanted to tell him but could not because he was concerned about “heat on the phone and stuff”, and that he was told “not to say it anyways”. The reference to the other big brother is a reference to Alqudsi.

30. Later that same day at 7 pm Baryalei called the offender again. They discussed difficulties the offender was having in procuring third persons to perform the transfers of funds.

31. There were further telephone conversations between Baryalei and the offender on 2 August, 4 August (2 calls), 7, 8 and 13 August (three calls) and 20 August 2014 during which the transfer of funds was discussed.

32. Ultimately the offender approached a young man, M2, to transfer the funds. M2 met the offender between late 2013 and early 2014 at the Parramatta Mosque at a time when he was a university student. On 6 August 2014, he was contacted by the offender and asked to assist by sending money overseas. The offender told him that he trusted him and that he needed somebody over 18 years of age to assist. At some stage later that day M2 and the offender drove to the Parramatta Mosque for prayers. The offender, Al-Talebi, M2 and Atai met in the underground carpark of the Mosque. Al-Talebi handed an envelope containing $6,000 to the offender who then passed it to M2. M2 was given US$9,000 in a pink bag which was also to be transferred overseas. Al-Talebi also handed M2 a booklet entitled “How should we be pleased in staying behind?” and told him he should read it.

33. On 6 August 2014, after receiving the money, M2, Atai and the offender attended the Ria Money Transfer in Parramatta where he and the offender discussed with staff the requirements to transfer funds to Pakistan. By this time, the offender had told M2 that the money was for the purpose of getting people into Syria to become foreign fighters. They left the Ria Money Transfer and made their way to the Travelex Agency in Parramatta. M2 gave evidence that the offender provided him with the details of the transfer which involved sending the money to “Shabir Ahmad” in the Pakistani city of Peshawar. M2 was advised that he could only transfer $3,000 in one transaction. He transferred this amount, telling the offender about the transfer limitation and provided him with a receipt.

34. On 7 August 2014, the next day, M2 transferred the other $3,000 at a newsagency in Auburn using a Western Union Money Transfer. He used the same details as the first transfer and thereafter met with the offender and provided him with a receipt. The offender then told him that the US money needed to be transferred to Turkey through the Bristol Ria currency exchange in Lakemba. A new name, “Mahmoud Al-Khiari”, was provided. M2 said that he assumed the transfer to be for the same purposes. The following day, M2 went to the Bristol Rea currency exchange with a friend from university. He was informed that the transfer would incur a fee of $600 so he did not proceed. He kept the final $9,000 in the pants pocket of his cargo shorts.

35. Following the two successful transfers totalling $6,000, the offender told M2 that there had been issues in the collection of the money in Pakistan in light of regulations. M2 said that the offender asked him to refund the transactions but that he did not do so and that he had no further involvement in those transactions.

36. These two transfers of $3000 each form the basis of the two s 16BA charges the offender has admitted to whereas the offender’s ongoing efforts to transfer the US$9000 forms the basis of the funding offence to which he pleaded guilty on indictment.

37. M2 informed the offender that he had not completed the transfer of the US$9000 due to the associated fee. The offender told him to exchange the money for Australian currency. M2 did not do this. As it turned out, his mother found the money in his cargo shorts and took it from him. M2 told the offender that his family had found it. The money was ultimately seized by police when, on 18 September 2014, they searched his home. It was still in the same pink bag.

38. Before making the first money transfer, M2 asked the offender whether it was illegal but the offender said “[n]o, just say in the name of God and do it, there’s big rewards for someone that does something like this.”

August 2014 – meetings with Agim Kruezi

44. In 2014 Agim Kruezi resided in Queensland. He had previously resided in Sydney and was known to some members of the shura. On 9 March 2014 he was stopped by Australian Customs and Border Protection officers at Brisbane airport attempting to fly to Syria via Kosovo with the intention of engaging in hostile activities in the Syrian conflict. He was not charged at that time.

45. Kruezi later travelled from Brisbane to Sydney on 15 August 2015 and spent time in the company of the offender and other members of the shura before returning to Brisbane on 27 August 2015.

46. Hussain gave evidence that in mid 2014 Kruezi came to his home in Sydney with Al-Talebi. At that time, Kruezi asked Hussain if he or someone he knew could assist in obtaining a firearm. Hussain’s evidence was that he said he had never inquired about it but that he could not imagine it being too hard.

47. Hussain saw Kruezi on another occasion about two days later at a prayer hall in Granville. The offender and Al-Talebi were also present. At some stage the offender said to Hussain that Kruezi had “the best plan” and that he wanted to access a firearm to carry out an attack in Queensland. Hussain said that ultimately Kruezi did get a firearm and that, while he did not know exactly how he got it, it was obtained with the assistance of the shura. He said that he saw Kruezi on only one other occasion, at the Mosque in Granville, where Al-Talebi informed him that they were taking Kruezi out to say goodbye.

48. Kruezi was later arrested on 10 September 2014. Searching officers located a shortened .22 calibre rifle and ammunition, a compound bow and arrows, machetes and other knives, a jerry can containing 10 litres of petrol and a collection of glass bottles and corks suitable for use in the manufacture of improvised incendiary devices. They also found the Islamic State flag, documents and electronic items containing extremist electronic documents, video and audio recordings and photographs. Kruezi was arrested and subsequently charged by police with terrorism offences alleging he did acts preparing for or planning a terrorist act and also in connection with his attempt to travel in March 2014. He pleaded guilty and has been sentenced.

31 August 2014

49. A number of members of the shura took the oath of allegiance (or ba-yah) to Islamic State at Wattamolla Beach in the Royal National Park on 31 August 2014. The offender was not present that day. He was helping his parents move house. There was no evidence adduced in the prosecution case that the offender had in fact taken the oath of allegiance to Islamic State by the time he was arrested.

Events in early September 2014

50. During the first two weeks of September Baryalei called and spoke with the offender at least six times. Each call, made by Baryalei to an intercepted mobile number, was answered by the offender’s younger brother, who subsequently passed the phone to the offender.

3 September 2014

51. In a telephone conversation intercepted on 3 September 2014, Baryalei advised the offender that his brother Waris was “loving it” and intended to join up with Zia Abdulhaq who used the kunya name “Abu Yusuf Al-Khorasani”. Baryalei discussed the plans to arrange for funds to be sent to him by arranging for three “unbelievers” to each send $2,950. I am satisfied that this was a reference to sending the US$9,000 previously provided by the offender to SE to persons in Lebanon or Turkey. The offender then explained how he still had to get the money back from “the guy” who had disappeared. This is clearly a reference to SE.

52. Baryalei enquired about the rest of the money in “the Money House”, which I am satisfied is a reference to the funds accumulated by the shura. The offender advised that there was a lot of money with “us”, but that it was being saved for “that thing that we talked about, about doing a thing you do here”, a reference to an unidentified prior conversation concerning plans for something else to do with Islamic State.

53. During this call the offender told Baryalei that he had got a new telephone for his younger brother, “because he is the one that speaks for me now because I can’t speak, like I can’t carry a phone or anything, yeah?” Later in the call the offender told Baryalei, “actually, I have no one’s number. I don’t even have a phone”. I am satisfied that the offender took this course as a means of counter surveillance.

4 September 2014

54. In a telephone conversation intercepted on 4 September 2014, Baryalei and the offender discussed the difficulty of obtaining persons to undertake fund transfers due to “the heat and stuff here”. The offender discussed plans for a “boy” he had procured to transfer the US$9000, that M2 continued to hold, to a person or persons in Lebanon within a week, as requested by Baryalei.

55. The offender then raised the topic of the “two journalists”. I accept that this is a reference to video recordings depicting beheadings of abducted Western journalists James Foley and Steven Sotloff by members of Islamic State at that time. The offender indicated that he had discussed with others of the Muslim faith whether the video recordings had been faked to portray a negative image of Islamic State and the offender had told them, “[i]t’s not giving us a bad name at all. Hah, you kill our one, we’re gonna kill yours.”

56. The telephone conversation then briefly returned to the offender’s arrangements for the transfer by other persons of funds at the direction of Baryalei, indicating that he would speak to a few of the “jahil”. There was evidence at trial that the Arabic word “jahil” can mean an ignorant person, a religiously ignorant person or a minor.

6 September 2014

57. In a telephone conversation intercepted on 6 September 2014, Baryalei and the offender discussed the latter’s progress in arranging for the transfer of funds. The offender advised that the money was still “in American” and discussed his concerns that M2 may “buckle” and refuse to make the transfer.

12 September 2014

58. In a telephone conversation intercepted on 12 September 2014, the offender advised Baryalei that a second “unbeliever” had been procured to perform a transfer of funds. He then discussed how Baryalei was “all over the news in Australia” and was being described as a “senior IS leader” and as “the biggest IS from Australia”. He told him that there was reportage of his previous work as a bouncer in Kings Cross, his performance as an extra on Underbelly and his role in radicalising “Khalid” and Mohammed Elomar. The offender also told him that a warrant had been issued by Australian authorities for his arrest. Baryalei replied, “if they had any guts they would come here and arrest me”.

59. Having heard this recorded conversation, most of which was in the English language, I am satisfied that, even when Baryalei became annoyed about his history being revealed in the media, the offender continued to joke with him about the publicity nonetheless.

14 September 2014

60. In a telephone conversation intercepted on 14 September 2014 Baryalei enquired of the offender as to what was happening with “the boys” and was advised that “one” had “pulled out” because “Tony Abbott ... raised the terror level from medium to high”. They then discussed other persons who might instead be willing and trusted to transfer the funds, or the possibility of performing two larger transfers, rather than three transfers. They also discussed whether Baryalei could assist a person in relation to aiding their entry into Syria and reaching Islamic State-occupied territory.

61. Late that day Baryalei called again to speak to the offender but his brother answered and advised Baryalei that the offender was unavailable. Baryalei indicated that he would call the offender again the following day.

The call on 15 September 2014

62. On 15 September 2014, at about 9.03 pm, Baryalei telephoned the offender. His younger brother answered the mobile telephone and spoke briefly before passing the handset to the offender. A conversation lasting approximately 20 minutes then took place in the English, Arabic and Dari languages. This telephone call is the basis of the charge that the offender did an act in preparation for, or planning, a terrorist act.

63. The offender told Baryalei he was “playing soccer with the boys”, which is consistent with the surveillance footage. The conversation then moved on to the topic of a person attempting to enter Syria to join Islamic State.

64. Baryalei then changed the subject and said to the offender: “I got some good news for you… Remember…we discussed about you know what we discussed?” The offender replied, “[y]eah, yeah, yeah, yeah,” and Baryalei continued: “We’re gonna do it but... differently”. The offender replied “[d]ifferently?” and Baryalei continued: “It’s gonna be different. It’s gonna be ah a kind of..., in the name of Allah”.

65. Baryalei then said a prayer in Arabic to which the offender replied “Amen”. The following exchange then took place:

Baryalei:         “Listen, it’s gonna be like this. I need you first of all to get ummm a telephone                                   and on that telephone l need you to get telegram. I’m gonna get a                                                   telephone at this end. I’m gonna set up telegram on this end                                                           and then...”

The offender:   “Yeah.”

Baryalei:            “… we’re gonna speak we’re gonna speak through – we’re gonna speak                                         through telegram, Allah willing, because telegram, apparently, praise                                               be to Allah is very good, but um...”

The offender:    “Yeah?”

66. The “Telegram” application was popular at that time for encrypted instant messaging telecommunications. It could be used to evade detection by Australian intelligence or law enforcement authorities. The exchange continued between the two men:

Baryalei:              “Yeah, like, let - let you know what you’ll be doing. I need you and I need                                         someone else maybe two or three or I might hook up with another                                                   two or three brothers…”

The offender:       “Yeah.”

Baryalei:               “…that side. And um it’s better - it’s better if we don’t if we don’t send                                                 anyone but it will be better if we set it up over there with you                                                           guys. What you guys need to do is just pick any random                                                                   unbeliever...”

The offender:          “Yeah.”

Baryalei:                  “Finish him/her. When finished, put the flag of the State, on the                                                        background, put our flag, and then I need that video here. I’m                                                          gonna get the ‘Al-Furqan’ boys to work on that video and                                                                start posting up videos. ...want in  our country...                                                                                Here the people want... here the Americans send                                                                            their planes and things like that to kill people,                                                                                    we want to send them a message that…”

The offender:           “Yeah”.

Baryalei:                    “… that as you kill our people we also will kill your people one by one.                                             As you send your people here to kill us, we tell them that we                                                           here, we have also people there that do kill your people                                                                   one, by one. Let their people rise against their ah, ah their                                                               governments, man. You know what I mean?”

The offender:            “Yeah, yeah. Allah willing. Yeah.”

67. The reference to the “Al-Furqan” boys by Baryalei was a reference to the media arm of Islamic State.

68. Baryalei went on to state:

“I need - I need - I need - I need boys. I need you. I - I need someone that has a heart. You know what I mean? Someone that… (indistinct)”

69. The offender responded by stating: “Look ah … A brother wanted to do this work, yeah?” to which Baryalei responded: “Yes”. The offender continued: “He prepared two persons, he completely prepared everything, and …, but two days ago he got raided, everything was raided.”

70. I am satisfied that this reference to a “brother” who wanted to do this work is a reference to Agim Kruezi who had been arrested a few days earlier.

71. Baryalei then asked the offender how the authorities learned about this plan and the offender replied:

“Glory be to Allah, so far I have no clue how they learnt about it, praise be to Allah, but everything was planned well, planned well, and the two unbelievers who were working for the government…everything was planned. But, glory be to Allah, this week, this week, he wanted to do the operation this week, but he got raided two days ago. For this reason now here…”

72. Baryalei then interrupted him to ask who this person was and the offender replied:

“This brother was from Brisbane, he has lost his passport and he was very much with us in religion…

…

he also wanted to send them a message…the thing that you just mentioned, glory be to Allah, he wanted to do this work.”

73. Baryalei then told the offender:

“I want you- to do this work, but I want this work to be continuous, continuous. I don't want you to get arrested, but want to do continuously and every month terminate five, six, seven people, every month, every month, and we will make videos and videos and videos like this.”

74. The offender replied:

“But the problem is … The problem is that here the boys who have heart, yeah, all of them are under surveillance, like extreme surveillance, whatever they do, they go after them, it means if we take the car out and go somewhere, they know where we are going, like, extreme surveillance, in this work…”

75. Baryalei asked: “How about you?” to which the offender replied:

“My situation is the same. Same thing. Because Abu Mosaab got arrested so that - that’s why there’s surveillance on me ’cause I hang around with him for a long time but… what the brother suggested was, the - the big brother that a jahil should do this work. Yeah? … But the video is ... (indistinct)... we make the video and send it. The jahil kills an unbeliever.”

76. In other calls it was Alqudsi who was referred to as “big brother”. I am satisfied that here the offender suggested to Baryalei that either a religiously ignorant person or a minor not under surveillance by Australian intelligence or law enforcement could commit the murders of random members of the Australian public, with the offender and his associates being involved in obtaining a video recording and transmitting it to Islamic State members for propaganda purposes.

77. Baryalei responded:

“Yah, do that, that, do that. Find someone who can terminate five persons for us every month … if the person — if the person is tourist or backpacker, an American, French or British, like this, even, better.… You know what I mean? So it makes ... it makes, like, you know, it makes, um, worldwide news, Allah willing.”

78. The offender replied:

“Look, the, the thing is, the only problem with this is, like, Allah willing make it, like, not, you have to give us, like, two months because two months... now the situation is like this, if we even move our bottoms they know what we are doing. Because surveillance Australian terror level has gone up, yeah? … Gone very high.”

79. The offender then indicated that, whilst he was not sure, it was likely that their present telephone conversation was being monitored, but that their recorded conversation would not constitute evidence. The offender then went on to suggest:

“For this reason, I say Allah willing, to postpone this thing and after a couple of months we again, ... if you tell me, I will get a new phone Allah willing and then do the work, it would be better.”

80. The offender then indicated that a number of his associates were suitable to assist him, stating “This work... there are courageous boys, with a heart.”

81. Baryalei indicated that only three or four persons were necessary. He then described how he had consulted with a person of some seniority who had assured him that the planned domestic terrorist acts against members of the public in Australia were justified, as the public were responsible for electing the Australian Government, indicating:

“Yesterday I, yesterday I, ah, I talked to a very big, big, big man. He told me that this was the work. First, I told him that we could finish these people, but these people have done nothing to us. He gave me a reason and said, look, these people have done nothing, but these people are unbelievers and their blood is like dogs blood. Another thing, he said these people are going and vote for the government. They elected this man to run the country. They, they, they are also guilty. This man, who runs the country, is supporting the Americans, French are supporting the Americans and the British are supporting the Americans. Who brought this man to power? These people. These people themselves can ...(indistinct)... told me this yesterday. I said, glory be to Allah. Then I did the guidance seeking prayers as well. Ah, the people here are right people, (indistinct) …they carry out their work according to Quran and Sunnah, yeah?” … They are big, big people, so, how they could be wrong? They have knowledge, knowledge of Quran and Sunna …(indistinct)…”

82. The offender responded to this by stating:

“I swear by Allah, I swear by Allah, it is not wrong. We have also (praise be to Allah) been told this reason before here, Sheikh Anwar, may Allah have mercy on him. We had this reason.”

83. Baryalei then asked “[i]s Sheikh Anwar talking about these things, yeah?” The offender responded by stating:

“Yes, he is talking about these things. We are not against it, we are hundred per cent convinced. But there is one thing which is the surveillance, because if we do something, we’re gonna give ourselves in for no reason like that because they might, like, as soon as we plan it they might catch us. You know what I mean?”

84. The two men then discussed the selection of three to five committed, trusted associates to assist the offender in bringing about the planned future terrorist attacks. I am satisfied that this is a reference to the offender’s knowledge of Kruezi’s plan to commit a domestic terrorist attack. Baryalei asked the offender:

“I want to know what these boys are like, are they hundred percent? Are they, like, best of the best, top of the top? Yes or no?”

85. The offender replied “Yeah” and the exchange continued:

Baryalei:            “You know what I mean?”

The offender:    “Yeah, yeah.”

Baryalei:            “And if my - if my heart goes with it I’ll try to tee – I’ll try to tee you up with                                        these guys. But I - I - I don’t want - I don’t want too many people. I                                                  only want, like, maybe three to five people but good quality                                                              people, trustworthy people. You know what I mean?”

The offender:    “Yeah, yeah. I know exactly what you mean, Allah willing, brother. I swear                                        by Allah, that brother had planned everything very well, but his                                                        plan is known to us, Allah willing, we have got his plan”.

86. Baryalei then indicated that the direction to commit the planned terrorist acts had come from senior Islamic State members who wished the offender and his associates to remain in Australia and commit terrorist acts there rather than travel to Syria or Iraq to join Islamic State, and that if they did so their bayeh or pledge of allegiance to Islamic State would be accepted. Baryalei stated:

“This is - this is ah - an order from the Commander of the Faithful. It’s an order from him, it’s an order from him the Commander of the Faithful. He said, youse will be working from there. Youse - youse aren’t allowed to come here. He said that they …they told me to tell you guys the Commander of the Faithful said that you guys, if youse do this youse are your your your your pledge of allegiance is accepted, you are a part of us and the second thing, ah even if youse wanna come here now, no. You have to stay there and work from there. They want youse to be, like, the soldiers from there.”

87. I am satisfied that Baryalei was here passing on a message from a senior figure in Islamic State that if the offender stayed in Australia to commit terrorists acts, rather than flying to Syria to fight, that his oath of allegiance to Islamic State would be accepted. The offender replied:

“Allah willing, brother, I have no problem with that. Praise be to Allah.”

88. Baryalei replied: “Oh, beautiful.”

89. The offender then stated:

“That’s what I said. Give two months, to get another good telephone, to get out of being under surveillance, I mean, to become an ...(indistinct)... person, very...(Indistinct)... person, like Tablighis, no, it is not our belief, like Tablighis, but become an ...(indistinct)... person, just not to suspect us. After that everything will be easy.”

90. There was evidence at the trial that the word “Tablighi” is an Arabic word, meaning a person who spreads Islam through preaching by peaceful means. I am satisfied that the offender was here suggesting to Baryalei that he and others, who could assist in bringing about the planned domestic terrorist act(s), pose as persons not interested in Islamic State for two months in order to evade detection by Australian intelligence and law enforcement. Baryalei agreed to this.

91. Then, after briefly discussing the offender’s efforts to procure trustworthy persons to transfer funds, the two men discussed the Australian Government’s commitment of 600 soldiers to the conflict in Iraq and moves by senior members of the Australian Islamic community to report those suspected of supporting Islamic State.

92. The two men then returned to their earlier discussion of planned domestic terrorist attacks. The offender stated:

“… praise be to Allah, what you said, Allah willing, has been thought of by the brothers already. And of course we’re gonna accept the the order of the Commander … So Allah willing, yeah it’s all good, man. I’ll see, I’ll talk to the brothers that are with me amongst the [shura] and ah I’ll talk to them and Allah willing that’s it, I’ll tell them that’s an order from the Commander.”

93. Baryalei then told the offender not to tell too many people about what was being planned and “to keep it tight”. The offender told him there were about 17 members of the shura. Baryalei responded that “we don’t need too many people for this job ’cause why? ’Cause we want it to be - we want it to be, like … continuous, man. Don’t want words getting out, this and that. It has to be, like, proper heavy duty – heavy - heavy - heavy duty boys with perfect faith…” The offender responded:

“No worries. Allah willing. Allah willing. This work, Allah willing, like I said, gimme like two months ...eh proper phone and...everything and Allah willing … And this - whatever the Commander said, we’re happy with it praise be to Allah.”

94. The two men then discussed other persons involved in the shura. The offender described one of them by stating “His faith is good, he’s just under extreme surveillance brother”. He described how this man and “the other brother” had not gone and still have the same faith. The offender then stated:

“I can't tell you on the phone, he wanted to do something, but I can't tell you that on the telephone.”

95. The telephone call ended with Baryalei telling the offender:

“…Allah will, steadfast and Allah willing, Allah glorified and exalted is He, will help.”

Events after the 15 September 2014 telephone call

96. On the following day, 16 September 2014, there was a further lengthy call between the offender and Baryalei concerning the transfer of the funds whilst the offender was at the Guildford Mosque.

97. Later that day the offender met with other members of the shura including Al-Talebi, Hussain and Atai outside the IGA at Guildford next to a payphone. Al-Talebi is seen in the CCTV footage making telephone calls from the payphone and the others are seen milling around. Hussain’s evidence was that, during this conversation, the offender said that he had spoken to Baryalei and that the ba-yah had been approved. The members of the shura were to stay in Australia and not make any attempts to travel overseas. The offender said that he had received instructions that they were to pick out a member of the public, or to get someone else to, and behead the person and drape them in the Islamic State flag. Hussain said that although this information had come from Baryalei the offender told them that the message came from “the top”. No discussions about how it was to be done occurred. Hussain said that, at that time, Al-Talebi dropped down and made a prostration, a ritual in Islam when a person receives news that pleases them.

98. This evidence was corroborated by CCTV footage of these men together outside the IGA and, in particular, the footage where a member of the group can be seen in the distance to prostrate himself.

99. The offender’s explanation for Al-Talebi prostrating himself at this time was that he was pleased that the offender’s brother was travelling to do the haj and then on to Syria. There was evidence that the offender’s parents and his brother Fahim did in fact leave Australia to travel to Mecca the following day. Despite this, having assessed the evidence of Hussain at the trial in the context of the other evidence called at the trial, I accept Hussain’s evidence that the offender did in fact pass on some of the contents of the telephone conversation he had had with Baryalei the previous day to other members of the shura. I note that the offender’s senior counsel in fact relied on the fact that Hussain agreed in cross-examination that when the offender told him of this, Hussain thought the plans were “crazy” and “ludicrous” and that he wanted to play no part in it.

Arrest on 18 September

100. The 15 September 2014, conversation had been intercepted by police and recorded. It was subsequently translated from Dari to English.

101. On 17 September 2014, the offender’s parents and brother Fahim left Australia to do the haj. The offender’s brother then flew to Syria where he also fought with Islamic State.

102. Early on 18 September 2014, the offender was arrested in his home as part of the Operation Appleby raids. Those raids received considerable publicity at the time and were triggered by the translation of the call between the offender and Baryalei on 15 September 2014 in which future terrorist acts in Australia were discussed.

103. During the search at the offender’s home, police located and seized telephone handsets and a computer hard drive with search histories which included websites promoting extremist views concerning Islamic jihad. There was no evidence in the trial that the offender (as opposed to his brothers) had accessed any of the extremist material himself.

104. The offender exercised his right to silence and declined to be interviewed by police. He was refused bail and has been in custody since that time.

105. In the period since the offender was arrested and refused bail Mohammad Ali Baryalei and both of the offender’s brothers Waris Azari and Fahim Azari have all been killed in Syria fighting for Islamic State.

The translation of the 15 September 2014 telephone call

106. A dispute arose as to the translation of part of the 15 September 2014 telephone conversation from the Dari language into English. Two expert witnesses were called in relation to this issue. The issue in dispute was the translation of the Dari word “baan”. There was no dispute that that was the word used by the offender during the relevant conversation. Its translation is “to leave” but it has different meanings depending upon the context in which it is used. It can mean to “postpone” and also to “abandon”. The word was used by the offender when he told Baryalei that they should “postpone” the plan for two months until after the surveillance had died down. The offender gave evidence that he used the word to mean “abandon” the plan. Consistently with the jury verdict, I am satisfied that having regard to the context in which the word was used in the relevant conversation the offender was seeking to defer the plan until after the surveillance had lessened and was not saying that he would “abandon” the plan completely.

The offender’s evidence

107. The offender gave evidence at the trial.

108. The offender explained that he knew that Baryalei was a high-ranking member in Islamic State. The only reason the offender wanted to stay in contact with him was to know the whereabouts of his brother Waris. He stated that he had no means of contact with Waris except through Baryalei. He did not want to upset Baryalei because if he was not on his good side there would be consequences. He stated that Islamic State was a ruthless group and if you go against them there are severe consequences including death. He stated that he had tried to avoid Baryalei’s phone calls during the August and September period by giving him his brother’s phone number.

109. The offender stated that he did not hang up on Baryalei on 15 September 2014 when he raised the topic of domestic terrorist attacks because he feared for his brother Waris and also for his other brother Fahim who was soon to travel to Syria as well. He stated that he had no intention of passing on the plan to the shura. He took no steps to get the Telegram app, nor did he intend to, and he had no intention of being part of getting the shura to participate in the plan that had come from Baryalei. He stated that Kruezi did not tell him about his plans to commit a terrorist act. He only found out about that plan from the news on television and in the newspapers.

110. Clearly the jury did not accept the offender’s explanation for the contents of the call on 15 September 2014. There were a number of difficulties with his explanation of which I will identify just two.

111. First, the offender’s explanation for participating in the 15 September telephone call was that he was fearful of Baryalei and scared for his brother Waris and that he needed to keep the communication going because that was the only way to keep in touch with him. But none of the telephone calls revealed any threats, expressed either directly or indirectly, in relation to Waris coming from either Baryalei or Islamic State. The way the two men interacted with each other during the calls suggests neither that the offender was personally in fear of Baryalei nor that he was worried or had any fears for his brother. In fact in one of the calls the offender can be heard laughing about Baryalei’s past life as an extra on the set of Underbelly and as a bouncer at Kings Cross when those details were reported by the media. The offender also told Baryalei that he would go and visit Baryalei’s mother “to catch up with her”.

112. There is no evidence that the offender ever warned his brother about Baryalei nor that he had any qualms about Baryalei talking to his younger brother on the telephone. On the contrary, he was trying to get Baryalei to meet up with his brother Waris and Baryalei did go to visit him on a couple of occasions. The offender did not have to go through Baryalei to get to his brother as Waris had already spoken to the family. In addition to that, Baryalei was busy and constantly on the move and was not in the same area as Waris. Baryalei never came even close either to exercising any authority over Waris or being a threat to him. In fact, Waris was selected for the special forces of Islamic State and was going with another commander anyway. The offender himself agreed that Baryalei never made any threats to his brother.

113. Second, the offender gave evidence that Kruezi did not tell him of his plans to commit a terrorist act when he spent time with members of the shura in Sydney in August in 2014. His evidence was that the only basis for him to be able to tell Baryalei that he knew Kruezi’s plan was because he read it in the newspapers. He stated that the reason he did not discuss any politics with Kruezi was because Kruezi was a supporter of Jabhat Al-Nusra whereas the offender was an Islamic State sympathiser. The offender explained that when Kruezi first came to Sydney, Al-Talebi told the offender that he was a guest and out of respect the offender should not argue or debate with him.

114. Contrary to this assertion, the offender made a formal admission that when police officers executed a search warrant of Kruezi’s Queensland residence they found an Islamic State flag.

The proceedings on sentence

115. The proceedings on sentence were conducted before me on 1 February 2019. The Crown relied upon two affidavits of officers of Corrective Services NSW (“CSNSW”) as well as the offender’s custodial report. The offender has no prior criminal history.

116. The offender relied upon an affidavit affirmed by him on 1 February 2019 outlining the circumstances of his incarceration at the High Risk Management Correctional Centre (“HRMCC”), the maximum-security section of Goulburn Correctional Centre. In addition, some of the evidence he gave at the trial outlined his personal circumstances. He did not give evidence at his proceedings on sentence nor did he rely on any other material on sentence.

188. The factual basis for the two s 102.7(1) offences was grounded in Al-Talebi’s role in the two transactions of 6 and 7 August 2014 involving M2, while the s 102.6(1) offence concerned his dealings in relation to the US$9,000.

189. On 28 August 2017, Sutherland SC DCJ sentenced Al-Talebi to a head sentence of 10 years in respect of each of the three offences, with the sentences for the two s 102.7(1) offences to be served wholly concurrently, while the commencement sentence for the s 102.6(1) offence was deferred for two years. Accordingly, the total head sentence was 12 years, with a non-parole period of 9 years. His Honour found that the matters for sentence could not be viewed as falling at the lowest end of criminality and recognised the need for general deterrence.

190. Although the offences under ss 102.6(1) and 102.7(1) carry the same maximum penalty of 25 years, it is not an element of the offender’s funding offence that the funds would help Islamic State engage in preparing, planning, assisting in or fostering the doing of a terrorist act. For the s 102.6(1) offence, Al-Talebi was sentenced on the basis that the funds were intended to be directly utilised by a person identified as a senior member of Islamic State, or at least a person in a position of senior responsibility.

191. There are some differences and similarities between the offender and Al-Talebi. Although Al-Talebi was sentenced on the basis that his offences were committed jointly with the offender, the offender is only to be sentenced for the s 102.6(1) offence, with two additional offences of that type to be taken into account. It is also noted that the offender’s additional matters are not the same as Al-Talebi’s offences in counts 1 and 2. In addition, Al-Talebi was older and he was the person who provided the extremist literature to M2, albeit in the presence of the offender.

192. It is a fundamental principle of equal justice that offenders who are charged with offences arising out of the same factual circumstances should receive sentences, which are proportionate to one another (Postiglione v The Queen (1997) 189 CLR 295 at 301–302; [1997] HCA 26 per Dawson and Gaudron JJ). The principle is not restricted to situations where the offenders are charged with the same offence (Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [29]–[30] per French CJ, Crennan and Kiefel JJ).

193. I have kept the question of parity in relation to this offence in mind in arriving at the appropriate sentence for an offence.

Section 19AG of the Crimes Act 1914 and totality

196. Under s 17A of the Crimes Act 1914 I may only impose a term of imprisonment if I am satisfied that this is the only appropriate sentence. Clearly, I am satisfied that this is the case in respect of the offender. The offences for which the offender stands to be sentenced are both “terrorism offences” as defined in s 3(1) of the Crimes Act 1914. This means that each of them is a “minimum non-parole offence” within the meaning of s 19AG(1) of the Crimes Act 1914.

197. Section 19AG(2)(b) relevantly provides that where two or more sentences have been imposed I am required to fix a single non-parole period of at least three quarters of the aggregate of those sentences. As Johnson J observed in R v Alou (No. 4) at [286], 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 [286].

198. I am also required to apply common law principles of totality: Johnson v The Queen (2004) 78 ALJR 616. The offender is to be sentenced for two serious offences and in relation to one of them a further two offences are to be taken into account under s 16BA of the Crimes Act 1914. The question arises as to the degree of concurrence and accumulation 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 to be more modest than that submitted by the Crown.

199. Although there is a factual continuum between the conduct constituting the funding offence and the planning offence, the goals in each case were separate. The criminality involved in making funds available to Islamic State to fund foreign fighters and that involved in doing an act in preparation for, or planning, a domestic terrorist act or acts is different. The sentences must be accumulated to a significant extent to reflect this.

200. In compliance with s 19AG(2)(b) and the principle of totality I propose to indicate the appropriate head sentence on each of the offences, allow for a degree of concurrence, review 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 and then finally fix the non-parole period of 75% on that aggregate head sentence.

The appropriate sentences

201. The evidence before me establishes that prior to the offender’s support for Islamic State he was a devout Muslim of good character who excelled at soccer and enjoyed working with the disabled. He had no prior criminal history and no material was put before the court by the Crown to suggest that he has ever used any actual physical violence.

202. The facts in this case demonstrate the insidious nature of Islamic State and the hold it was able to take over young Muslims. In this case it captured the heart and mind of an otherwise law abiding young man and radicalised him. Belief in Islamic State led this offender to attempt to fly to Syria to fight, transfer funds to help Islamic State, liaise with a senior Australian member of Islamic State and become so indoctrinated that during the telephone call on 15 September 2014 he agreed that he would follow any order of the Commander of Islamic State even if it included terrorist acts in Australia.

203. Consistent with the proper approach to sentencing described by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], confirmed in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26], I have identified the factors relevant to the sentence, discussed their significance and made a value judgment as to what is the appropriate sentence given all the factors of the case.

204. For the planning offence there will be a term of imprisonment of 12 years.

205. For the funding offence (and taking into account the other two matters) and after allowing a 25% discount, there will be a sentence of imprisonment of 8 years.

206. Applying the principle of totality there will be a period of 2 years’ concurrence between both sentences.

207. The effective aggregate sentence will involve a head sentence of imprisonment for 18 years. Applying the three-quarter rule for the purpose of s 19AG of the Crimes Act 1914 (Cth), the non-parole period will be 13 years and 6 months.

Conviction and sentence

208. Mr Azari, you are convicted and sentenced as follows:

1. For the offences under ss 11.1(1)/101.6(1) and 102.6(1) of the Criminal Code (Cth), you are convicted.

2. For the offence under s 101.6(1) of the Criminal Code (Cth), I sentence you to imprisonment for 12 years commencing on 18 September 2014.

3. For the offence under ss 11.1(1) and 102.6(1) of the Criminal Code (Cth), and taking into account two further offences under s 102.6(1) of the Criminal Code (Cth) for the purpose of s 16BA of the Crimes Act 1914 (Cth), I sentence you to imprisonment for 8 years commencing on 18 September 2024.

4. In accordance with s 19AG of the Crimes Act 1914 (Cth), I fix a single non-parole period of 13 years and 6 months commencing on 18 September 2014 and expiring on 17 March 2028. The head sentence of 18 years imprisonment will expire on 17 September 2032.

5. Pursuant to s 105A.23 of the Criminal Code (Cth), you are warned that an application may be made under Division 105A of that Code for a continuing detention order requiring you to be detained in a prison after the end of his sentence for the offence under s 101.6(1) of the Criminal Code (Cth).

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Amendments

29 March 2019 - Minor typographical errors corrected

19 May 2020 - 19 May 2020, Order 3 amended - sentence to commence on 18 September 2024

03 November 2025 - Publication restriction lifted.

Decision last updated: 03 November 2025