R v Brookman (Sentence)

IN THE SUPREME COURT OF VICTORIA

Unrestricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0100

THE QUEEN	Crown
v
ADAM MATHEW BROOKMAN	Accused

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May 2021
DATE OF SENTENCE:	23 June 2021
CASE MAY BE CITED AS:	R v Brookman (Sentence)
MEDIUM NEUTRAL CITATION:	[2021] VSC 367

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CRIMINAL LAW – Sentence – Single between dates charge of performing services in support or promotion of others engaging in hostile activity in Syria – Plea of guilty – Delay between arrest and sentence – Need for specific and general deterrence – Sentenced to a 6 years and 8 months imprisonment, non-parole period 5 years – Crimes (Foreign Incursions and Recruitment) Act 1978, ss 6, 7(1)(e); Crimes Act 1914 (Cth), ss 16A, 16A(2), 16E(2)-(3), 17A.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N Robinson QC with Mr S Ginsbourg	Commonwealth Director of Public Prosecutions
For the Accused	Mr P Morrissey SC with Ms G Morgan	Stary Norton Halphen

Introduction

Adam Brookman, you have pleaded guilty to a single charge that you did, in Syria between 8 May 2014 and 29 July 2014, perform services in support or promotion of the commission of an offence against s 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)(‘the CFIR Act’) contrary to s 7(1)(e) of that Act.

The maximum penalty for this offence is 10 years imprisonment.[1]
[1]CFIR Act s 7.

The charge against you relates to offending that occurred while you were in Syria, where you performed services for a group or groups of men of predominantly Chechen and North Caucasian origin (‘the Chechen group(s)’) who were engaged in hostile activity in Syria.[2]
[2]It should also be noted that, by virtue of s 7(1A) of the CFIR Act, a person can be prosecuted for an offence under s 7, where assistance is provided for the purpose of supporting or promoting the commission of a s 6 offence by others, even if those others have no connection to Australia. Section 6(2) of the CFIR Act makes clear that a person shall only be taken to have committed an offence under that section if they have a connection to Australia as specified in that section. However, s 7(1A) was inserted into the CFIR Act by the Crimes Legislation Amendment Act 1987 (Cth) specifically to remove that requirement for the purposes of s 7 offences. See Explanatory Memorandum, Crimes Legislation Amendment Bill 1987, 26.

You have been in custody since you were arrested on 24 July 2015.

In sentencing you, I have had regard to the documents tendered by the Crown by way of a plea opening, including the factual plea summary,[3] submissions on legal principles to be applied, and relevant authorities.[4]
[3]Crown Plea Summary of Facts dated 11 May 2021 (‘Plea Opening’).
[4]Prosecution Submissions on Sentence dated 11 May 2021 (‘Prosecution Submissions’); Index of Authorities and Table of comparative cases (The CDPP delivered both hard and soft copies of those cases to the Court on 12 May 2021).

I have also had regard to documents tendered on your behalf including written plea submissions[5] together with relevant attachments,[6] certificates of courses you have undertaken in custody, and family testimonials.[7]
[5]Defence Plea submissions dated 13 May 2021 (‘Defence Submissions’).
[6]Attachments to Defence Submissions being Australian Department of Foreign Affairs and Trade Snapshot: Syria Sanctions Regime; Department of Justice and Community Safety Fact Sheet: COVID- 19 Information for court regarding Corrections Victoria operations (April 2020); and Department of Justice and Community Safety Fact Sheet: Changes to coronavirus (COVID-19) restrictions) Fact Sheet for stakeholders (23 November 2020).

The events of 2014–2015
Conduct prior to the charge period

You have not been charged for anything you did before 8 May 2014, but it is useful to briefly set out your activities in the lead up to your offending to give context to your offending.

On 4 February 2014, you left Australia and travelled to Morocco. You then travelled to Turkey, and by 13 March 2014, you had crossed the border into Syria.

Initially, between 13 and 20 March 2014, you were providing medical services in the Aleppo area.[8]
[8]Transcript of Proceedings, CDPP v Adam Brookman, (Supreme Court of Victoria, S CR 2017 0100, Jane Dixon J, 14 May 2021)(‘Transcript’), 3 (N Robinson QC), 3. On 20 March 2014, you posted on Instagram about doing humanitarian work with an organisation called ‘Medical Relief for Syria; Plea Opening, 10; Prosecution Submissions, [6]. There is no other evidence that you actually did work for that organisation, but the Crown accept you were engaged in providing medical services of some kind around that time.

It appears from your social media postings that by late April 2014, you were in the company of opposition combatants. On 24 and 25 April 2014 you posted a photo on social media of some armed combatants, and a quote from someone about the day-to-day life of a ‘mujahid’ in Syria.[9]
[9] Plea Opening, 10-11 [28]; Prosecution Submissions, [8].

By May 2014, you had relocated to Atmeh, and you were with a group of predominantly Chechen and North Caucasian fighters. You later moved with that group to the Latakia region.[10]
[10]Transcript, 3.

Your offending conduct

The charge against you relates to offending that occurred between 8 May and 29 July 2014 (‘the charge period’), and is comprised of the following conduct: undertaking weapons training and guard duty (‘ribat’), providing medical services, and undertaking reconnaissance. You did all of this with the intention of supporting others to engage in hostile activity in Syria. Much of the evidence relied on to establish the charge against you comes from your own social media posts.

I will now set out your offending conduct in more detail.

Undergoing training and maintaining weapons

Between 13 May and 11 July 2014 you were, at various times, armed with rifles, a machine gun, a pistol, grenades, and a knife.[11] During this period, you posted pictures of those weapons on the internet using social media accounts, which either belonged to you, or that you were able to use. Your posts support the inference that you knew how to use and maintain the weapons you spoke of.
[11]For example see posts showing: Rifles: Plea Opening, [38]-[40], [46], [48], [53], [54], [55], [56], 33; Prosecution submissions, [11]-[12], [22], [23], [25, [28]; Machine gun: Plea Opening, 19; Grenades: Plea Opening, [50], [51] Prosecution Submissions [18], [20]; Hand gun: Plea Opening, 26, Prosecution Submissions, [18]; Knife: Plea Opening, [54], Prosecution Submissions, [23].

On 10 July 2014, in reply to a comment on one of your posts asking about the cost of fully arming a ‘mujahid’ you gave an estimate of cost, and listed items to be purchased including extra ‘mags’, a grenade, and an AK vest.[12] On 20 and 23 July 2014, you posted pictures of what the Crown say is a military base in the Latakian forest.[13] Then, on 29 July 2014, you posted about having accidentally fired your gun into a wall while trying to unjam the magazine with a bullet still in the chamber. In that post you quipped about having failed ‘gun safety 101’.[14] Your posts support the inference that you undertook training within the charge period.
[12]Plea Opening, 34 [53], Prosecution Submissions, [25].
[13]Plea Submissions, [29]. The Crown submitted that the Court should find that the military base was a JAA base. I deal with the reliance on JAA later in these reasons.
[14]Plea Opening, 47 [63]; Prosecution Submissions, [31].

Undertaking guard duty

Between 15 and 16 May 2014, and between 29 May and 3 July 2014, you undertook armed guard duty, called ‘ribat’, for opposition forces.

You posted on social media about being on ribat.[15] You described what ribat was,[16] its importance,[17] and, on one occasion, you posted a picture of a guard post with a rifle in frame.[18] In reply to a comment on one of your posts, you explained that if, while on ribat, you saw enemy movements, you were to ‘call it in and take up positions’.[19] The Crown also refer to several of your social media posts that feature pictures of, amongst other things, a walkie-talkie that is labelled ‘Abu Sufyan’, which was the name you used in Syria.[20] In the captions to some of the photos, you talk about ribat and indicate the photo was taken while you were on ribat.[21] The Crown say that it can be inferred from the posts that the walkie-talkie was part of your equipment (along with a firearm pictured nearby to the walkie-talkie in one such post). The posts confirm that ribat was part of your role in the group.[22] Taken together, your posts support the inference that you undertook ribat, and that you were armed while doing so.
[15]Plea Opening, 20 [42(b)]; 23.
[16]Plea Opening, 20 [42(b)]; Prosecution Submissions, [14].
[17]Plea Opening, 18-19 [41(a)], [42(b)].
[18]Plea Opening, [42(b)].
[19]Plea Opening, 21.
[20]See posts of 3, 10/11 and 31 July 2021, Plea Opening, 27, 34, 47; Prosecution Submissions, [25].
[21]Plea Submissions, [25].
[22]Plea Opening, 22 [46]; Prosecution Submissions, [25].

Providing medical services

Between 12 and 14 July 2014, you attended the front line of combat and acted as an armed medic, assisting opposition combatants who had been injured in battle. You posted about the ambulance you and others used to transport injured combatants (‘#mujahideen’ in your words) from the ‘front line’ during what you described as the ‘night time assaults against #bashars #demons […]’.[23] You described this experience as ‘hair raising’.[24] You also posted a photo of your AK-47 rifle and a bag of medical supplies, with the caption: ‘#Preparation is key even for a #medic’.[25] I note also that on 20 July 2014, you posted a picture of your rifle, ammunition and, amongst other things, a stethoscope, with the caption ‘These are my #essentials […].’[26] Your posts support the inference that you were involved in providing medical services at the relevant times.
[23]Plea Opening, 35 [54]; Prosecution Submissions, [26].
[24]Plea Opening, 35 [54]; Prosecution Submissions, [26].
[25]Plea Opening, 37 [55]; Prosecution Submissions, [27].
[26]Plea Opening, [56]; Prosecution Submissions, [28].

Undertaking reconnaissance

On 26 July 2014, you are alleged to have performed reconnaissance. That day, you posted twice on social media and talked about going on ‘recon’. In one post you said ‘We went on #recon today to have a looksee of enemy positions in our area today[sic].’[27] You also described hearing heavy weapons being fired between the army and ribat positions, and bullets flying overhead.[28] In the other post from that day you posted a photo taken from what appears to be the back seat of a vehicle, looking out the windscreen.[29] A driver and a passenger are visible. A rifle is visible near the passenger. In your caption you say: ‘On our way back from #recon of #enemy positions to make it just in time for #iftar[30][…]’.[31] These posts support the inference that you did undertake reconnaissance at the relevant time.
[27]Plea Opening, 42 [58(b)]; Prosecution Submissions, [30].
[28]Plea Opening, 42 [58(b)]; Prosecution Submissions, [30].
[29]Plea Opening, 43; Prosecution Submissions, [30].
[30]Being the meal eaten after sunset during Ramadan.
[31]Plea Opening, 43; Plea Submissions, [30].

The Crown allege that the organisation you and the Chechen group(s) were performing reconnaissance for at the time was JAA. They also allege you trained with JAA. These were issues of factual dispute on the plea. Your counsel submitted that the Court could not safely infer beyond reasonable doubt that you trained with or performed reconnaissance for JAA. I will deal with my factual finding about this issue here for the sake of convenience.

Charles Lister, an expert witness called by the Crown on the topic of the civil conflict in Syria throughout 2014, described JAA as a small jihadist group that emerged in mid-2014. They were based in the Latakia province, and manned primarily by foreign fighters, including those from the Russian North Caucasus.[32] Your counsel noted that Charles Lister made some qualifying comments in his evidence about the relative importance of JAA in the Syrian conflict. For example, he described JAA as an extremely small group, that did not exist for very long, and that did not play a particularly prominent role.[33]
[32]Plea Opening, 45 [61]; Prosecution Submissions, [29].
[33]Defence Written Submissions, [14].

The Crown rely on your own social media posts to establish your alleged connection to JAA. In your posts of 20 and 23 July 2014, you posted photos of what you described as ‘inside the #mujahideen mess hall/tent’[34] and also a ‘make shift’ toilet[35] with captions indicating both photos were taken in the forests of Latakia. The Crown say those photos depict a military base in the Latakian forests, and support the inference that you were at that base with Chechen opposition militants at that time.[36] In another post on 25 July 2014, you posted a picture of a distinctive gate in a rural area, with a caption that reads ‘Ribat (lying in wait) in the forests of #latakia (town in Syria) #beautiful and #peaceful’.[37] The Crown submit that that same gate appears in a video obtained by investigators from a public website (‘JAA training video’). On its face, the JAA training video purports to show JAA training exercises in the Latakian forest. You do not appear in the JAA training video, and it is unclear who created that video, where or when it was created, or who uploaded it to the internet.[38] The Crown also rely on your post on 26 July 2014, where you posted a picture of a flag, said to be the JAA flag. Your caption explained that a number of independent mujahideen and groups had united in the West of Syria, to fight against Assad, under the name JAA.[39] Lastly, the Crown rely on a post on 28 July 2014, where you talk about having accidentally fired your gun into a wall while cleaning it and failing to comply with your training. The Crown says this is consistent with you having undergone weapons training with JAA.[40]
[34]Plea Opening, 40 [56]; Prosecution Submissions, [29].
[35]Plea Opening, 41 [57]; Prosecution Submissions, [29].
[36]Plea Opening, 41 [57]; Prosecution Submissions, [29].
[37]Plea Opening, 41 [57]; 44 [60]. Includes the Crown’s translations that do not appear in the original post.
[38]Nor is it clear who posted the video to the website where it was found by investigators.
[39]Plea Opening, 44 [59]; Prosecution Submissions, [29].
[40]Plea Opening, 45 [62]; Prosecution Submissions, [31].

From the above, the Crown invite the inference that as part of the services performed for the Chechen group(s), you received training from, and performed reconnaissance for, JAA in Latakia. The significance of the link with JAA was said to be that JAA operated as a co-ordinated military unit.[41]
[41]The Crown submitted that JAA’s operation included training and a command structure, as evidenced by the video that depicts training at a location where you were based with them, and the walkie-talkie that was issued to you and is depicted in your social media posts.

I am not satisfied beyond reasonable doubt[42] that you performed a role for, or were a member of JAA, or that you were present and participating with JAA when the JAA training video was filmed. However, I accept that your social media posts, referred to above, reflect the fact that you performed services for a group of combatants who were operating within an organised military context. I am also satisfied that, as part of performing services for the Chechen group(s) who you were associating with during the charge period, you carried arms, undertook reconnaissance in the forests of Latakia, and received weapons training. Further, I am satisfied that there must have been some kind of command structure within which you conducted these activities, regardless of the exact identity of those in command.
[42]The conventional approach to fact-finding in sentencing was articulated by Adamson J in R v Alqudsi [2016] NSWSC 1227, at [5]: ‘As sentencing judge, I may not take facts into account in a way that is adverse to the interests of the offender unless the facts have been established beyond reasonable doubt. However, if there are circumstances which I propose to take into account in favour of the offender, it is sufficient that they be proved on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ.’

In any event, given your plea to the indictment as it is framed, the specific group with whom you were associated is not of great significance.[43] Her Honour Justice Adamson, when dealing with foreign incursion charges[44] in R v Alqudsi (‘Alqudsi’),[45] discussed the relevance of the identity of the organisation that the offender (and others in his group) assisted. Her Honour observed:

For reasons already given, it does not matter who they were fighting for or against. That some of the men might have fought for Ahrar Al-Sham, some for Jabhat Al-Nusra and some for Islamic State, and that these groups were fighting each other is not to the point. Nor is it relevant that Mr Baryalei fought, at different times, for all three groups.
[43]I also note the submissions of Mr Morrissey on the plea: ‘We'd cavil at some of the inference chains that are sought to be drawn particularly about JAA. But Your Honour's point about it doesn't matter, it's not very mitigating for us to evade the allegations about JAA given that the offending is a 10-week period and JAA is probably best to be viewed as an aspirational body rather than as a real one’, Transcript, 63.
[44]Alqudsi was charged with offences under s 7(1)(e) of the CFIR Act.
[45]R v Alqudsi [2016] NSWSC 1227.

Significance of conduct before and after the charge period

Throughout the first several months that you were in Syria, and before the charge period, you posted numerous times on Facebook and Instagram in support of anti-government opposition forces in Syria, and about your activities. You continued similar posts during, and after the charge period.

You are not charged with the activities you undertook before or after the charge period. However, the Crown argue that your conduct outside the charge period[46] lends verisimilitude to your attitude about your activities and beliefs within the charge period.
[46]In social media posts.

After the end of the charge period on 29 July 2014, you remained in Syria, for several months and your actions over that period are contextually relevant to your conduct within the charge period. The Crown argued that the so-called ‘A-31 material,’[47] including videos taken at the former Manbij driving school, show you wearing military fatigues and carrying a rifle in the presence of a large group of armed combatants.[48] You are visible on film climbing into an ambulance and leaving with the armed combatants in a convoy.[49] The Crown say that other A-31 material also supports the inference that, on 19 November 2014, you remained in the company of Chechen combatants.[50]
[47]Which comprises footage and still images of armed combatants at the Manbij Driving School.
[48]Prosecution Submissions, [35].
[49]Prosecution Submissions, [34].
[50]Prosecution Submissions, [10].

Further, the Crown rely on your posts before and after the charge period as contextual evidence showing your continuing state of mind. They submit the posts demonstrate the enduring nature and strength of your adherence to extremist ideology.[51] I accept that submission. In R v Biber (‘Biber)‘,[52] the New South Wales Court of Criminal Appeal emphasized that the nature and extent of an intent, and the resolve with which it is held, may be revealed by subsequent events.[53] Other cases support the proposition that uncharged acts whether before or after charged conduct can be relevant to charged conduct.[54]
[51]Prosecution Submissions, [3], [45].
[52][2018] NSWCCA 271.
[53][2018] NSWCCA 271 [27] citing R v Ashdown [2003] VSCA 216 at [12] and R v Baden-Clay (2016) 258 CLR 308 at [76], [77].
[54]In The Queen v Jacobson (Ruling No 2) [2014] VSC 368 at [73], Kaye JA said ‘It is also well established that evidence as to the context, in which an alleged offence occurred, is not confined to transactions that occurred before the date of the offence, but may also include transactions and events which occurred after the date of the offence’.

Between 19 November 2014 and 27 January 2015, you left Syria after being injured, and returned to Turkey, where you remained for five months. You found yourself in a difficult position being unable to retrieve your Australian passport. You contacted the Australian Consulate and arranged, with the assistance of lawyers in Australia, to surrender yourself to the authorities, knowing you would be returned to Australia and would face arrest on your arrival here.

On 24 July 2015, you returned to Australia, and were arrested in Sydney.

Matters personal to you[55]

[55]Including character, antecedents, age, means and physical or mental condition both at the time of the offence and since being arrested and placed on remand per Crimes Act 1914 (Cth)(‘Crimes Act’) s 16A(2)(m).

You are now 45 years old and appear before the court without a criminal record.[56]
[56]As confirmed by both Counsel at the plea hearing on 14 May 2021, Transcript, 1.

You spent your early life in Ballarat with your parents and four brothers, in a non-denominational, Christian household.[57] When you were in year 11, your mother ,who had separated from your father, married for a second time. Her second husband was Moroccan. She converted to Islam and eventually moved to Morocco with your younger brothers. In 1994, you travelled to Morocco to visit them and began to embrace Islam. You took an Islamic name, and when you returned to Australia, you lived in Preston, close to the Preston Mosque. You made a pilgrimage to Mecca in about 1996, and while in Saudi Arabia, you applied for and received a scholarship to study there. You attended the University of Medina and studied in Saudi Arabia for about three and a half years. You studied the Arabic language and subjects about Islam. In 2000, you returned to Melbourne and completed a nursing degree at Victoria University. In July 2001, you married Lina M[58] and moved with her to an address in Coolaroo. Between 2002 and 2013, you had five children together.
[57]Your personal circumstances prior to leaving Australia for Syria were summarised by the Crown. Your counsel did not dispute that description of your personal circumstances before you left for Syria.
[58]Full name omitted.

You undertook nursing agency work at various hospitals for some years before training as a paramedic in 2010. You then began working with Ambulance Victoria, but stopped working with that organisation in about February 2011, resuming working again as an agency nurse.

Your wife is of Lebanese background. In 2012, you and your family travelled to Lebanon, where you looked for nursing or teaching work. You and your family stayed in your father-in-law’s house in Tripoli. In August 2012, you applied for and took up a job teaching at a school in Saudi Arabia. Your family joined you in Saudi Arabia in October of that year. You were not happy with the support provided by the school where you taught, and after working there for a while, you decided not to renew your contract.

Ultimately, you and your family returned to Australia in July 2013, at which time your wife was pregnant with your fifth child, a daughter. Your daughter was born on the 29 November 2013. She was only three months old in February 2014 when you left Australia, ultimately bound for Syria.

Procedural history, Delay and Timing of Plea of Guilty[59]

[59]Crimes Act s 16A(2)(g).

The procedural history of your case and the issue of delay is not straightforward. You have been in custody since the date of your arrest on 24 July 2015. You were initially charged with a terrorism offence under s 102.7 of the Criminal Code Act 1995 (Cth) (‘Criminal Code’) and a charge under s 7(1)(e) of the CFIR Act, that spanned a longer period than the charge you have pleaded guilty to.[60] On 7 June 2017, following a contested committal, you were committed to this Court on those two charges. Pre-trial steps commenced in late 2017 including the listing of cross-examination of witnesses whose evidence was not available prior to committal. Pre-trial argument covered a wide range of matters including the form of the indictment, the provision of particulars, evidentiary issues, and prosecution disclosure.
[60]16 May to 30 November 2014.

The formal charges you were facing underwent revision throughout 2017 to 2019.[61] You were arraigned on a trial indictment on 1 October 2019, pleading not guilty to a terrorism charge under the Criminal Code and a foreign incursion charge under the CFIR Act.[62] The indictment remained in that form until the plea indictment was filed over on 14 April 2021.
[61]On 8 September 2017, a revised indictment was filed, with two charges under s 102.7(1) of the Criminal CodeAct 1995 (Cth)(‘Criminal Code’), and one charge under s 7(1)(e) the CFIR Act. Following pre-trial argument about the form of the indictment a further revised indictment was filed on 9 November 2018, containing only two charges, with one under the Criminal Code, and one under the CFIR Act. On 13 December 2018, after a formal ruling about the form of the indictment and adequacy of particulars, some further small amendments were made to the form of the indictment.
[62]Those charges were: 1: Provide support or resources to a terrorist organisation, contrary to section 102.7 of the Criminal Code; 2: Perform services in support or promotion of the commission of an offence against s 6 of the CFIR Act, contrary to section 7(1)(e) of the CFIR Act.

Lengthy and complex pre-trial arguments, and several ancillary applications, were pursued throughout 2018 and 2019. Proposed trial dates came and went as ongoing pre-trial issues were pursued. I do not wish to imply fault for the delay associated with the pursuit of pre-trial applications that you were perfectly entitled to pursue. However, I note that the issuing of wide-ranging subpoenas on your behalf in late 2019 led to further inevitable delays at that time. As has been pointed out by the Crown, offences such as those that you were charged with,[63] involving foreign evidence and foreign agencies, generally take longer to prepare for trial than cases involving more conventional, domestic crimes.
[63]Including the current charge to which you have pleaded guilty, and the Criminal Code charge which has not been maintained.

The Court was in the process of dealing with claims of Public Interest Immunity and Legal Professional Privilege, made by the respondents (and affected parties) in response to the subpoenas served by the Defence, when in March 2020, the COVID-19 pandemic struck.

Finally, trial by jury was scheduled to commence in April this year. However, on 7 April 2021, the Court was informed that a central witness was no longer available to be called by the Crown. On 8 April 2021, the Court was advised that the Crown would no longer be relying on that evidence. The Court had been poised to hand down further evidentiary and substantive rulings that had been premised on that evidence being called by the Crown. Shortly after the Crown announced it would not rely on the unavailable evidence, your case resolved. The Crown withdrew the more serious Criminal Code charge, and on 14 April 2021, you pleaded guilty to the less serious charge, under s 7(1)(e) of the CFIR Act.

Regarding delay, I accept that I should give weight to the hardship you have experienced as a result of the additional stress and uncertainty caused by delay in having your case finalised.[64]
[64]I have taken account of the letter from your mother Aishah Hyatt, dated 11 May 2021, regarding the stress you have endured on remand. The stress and hardship suffered by you is a relevant factor pursuant to Crimes Act s 16A(2)(m).

It was not disputed by the Crown that in January 2018, you offered to plead guilty to a suitably drafted charge of the kind to which you have now pleaded.[65] That offer was formally rejected at that time.[66] Your lawyers approached the Crown again at the conclusion of pre-trial argument in late 2019, without reaching a successful resolution at that time.[67] In light of the above, the Crown concede that the timing of your guilty plea is to be regarded as ‘moderately early.’[68] I accept that characterisation.[69]
[65]Defence Submissions, [30].
[66]Defence Submissions, [30].
[67]Defence Submissions, [31]; Prosecution Submissions, [44].
[68]Prosecution Submissions, [44].
[69]Cameron v The Queen [2002] HCA 6 [21]-[22]; Worboyes v The Queen [2021] VSCA 169, [29]-[34].

Your plea of guilty to the current charge is of importance to the sentence to be imposed. It demonstrates your willingness to facilitate the course of justice, and you deserve a significant discount on your sentence for its utilitarian value. I accept that a jury trial on the trial indictment, which included the additional charge under the Criminal Code, would have involved issues of significant complexity. Also, your trial was due to commence when there were social distancing restrictions governing the way a jury trial was to be conducted because of the COVID-19 pandemic.[70] The trial was expected to last several weeks, even without the unavailable witness referred to earlier, and would have required special arrangements to be made to hear the evidence of overseas witnesses.[71] The Victorian Court of Appeal has recently held that the utilitarian value of a plea of guilty in the circumstances of the COVID-19 pandemic is greater than at other times, and should attract ‘a more pronounced amelioration of sentence than at another time’ because of the extraordinary pressures placed on court resources.[72]
[70]The trial was scheduled to commence on 7 April 2021. At the time this matter settled, jury empanelment had been booked for 13 April 2021.
[71]For example, witnesses from Norway.
[72]Worboyes v The Queen [2021] VSCA 169, [35]-[39].

You will be also given some credit for cooperating with arrangements made for your return to Australia from Turkey.[73] I also take into account in your favour that you have been polite and respectful in your appearances before the courts since you were remanded in custody.[74] Regarding your record of interview, you cooperated only to a very minor extent.[75]
[73]Crimes Act s 16A(2)(h).
[74]Unlike some other offenders who follow a conservative religious ideology you have been willing to stand when brought before a court and have at all times remained calm and cooperative with court proceedings including WebEx testing and the like.
[75]In your police interview conducted 29 July 2015, you answered questions selectively, giving responsive answers about your personal circumstances but declining to answer many questions about your activities in Syria. This limits any extent of credit available for cooperation with the investigation.

Hardship caused by the COVID-19 pandemic

I also recognise the hardship you have experienced as a result of being on remand during the pandemic. I accept that access to personal visits has been restricted due to COVID-19 lockdowns, making your time on remand more burdensome than otherwise.[76] For the same reason,[77] many programs and services that would have been delivered in person have been unavailable during the lockdowns in Victoria.[78]
[76]See DPP v Bourke [2020] VSC 130, [32]; Department of Justice and Community Safety Fact Sheet: COVID-19 Information for court regarding Corrections Victoria operations (April 2020); and Department of Justice and Community Safety Fact Sheet: Changes to coronavirus (COVID-19) restrictions) Fact Sheet for stakeholders (23 November 2020). See also Worboyes v The Queen [2021] VSCA 169, [36].
[77]Personal visits recommenced from 11 December 2020, and chaplaincy services from 14 December 2020, but there was another short suspension of visits, and a recent suspension of visits from 12 May 2021. as a result of community transmission in Victoria.
[78]Department of Justice and Community Safety Fact Sheet: COVID-19 Information for court regarding Corrections Victoria operations (April 2020).

The pandemic has caused fear and concern for many Victorian prisoners, especially earlier in the pandemic, when it was unclear whether authorities would succeed in keeping COVID-19 out of the prison system.[79] It is to be hoped that vaccinations will soon be more generally available, but I accept that the negative impacts of the pandemic for Victorian prisoners may continue to some extent into the future. However, the weight to be accorded to hardship for prisoners as a result of the impact of the COVID-19 pandemic has some inherent limitations.[80]

Nature and circumstances of your offending[81]

[79]R v Ali [2020] VSC 316 [202]-[208].

[80]Wyka and Gardiner v The Queen [2020] VSCA 104, [19].

[81]Crimes Act s 16A(2)(a).

A wide range of conduct is capable of being captured by the CFIR Act. The nature and circumstances of offences under the CFIR Act, and the harm sought to be avoided by the provisions of that Act, were discussed by Lasry J in the case of R v Mohamed (‘Mohamed’).[82]
[82][2016] VSC 581. See also R v Cerantonio & Ors (‘Cerantonio’) where Croucher J referred to and adopted Lasry J’s approach, although in Cerantonio, the offenders were facing foreign incursion charges under the Criminal Code.

When sentencing Amin Mohamed, Lasry J said:

The CFIR Act was enacted in 1978 and subsequently amended from time to time. The provisions which made your conduct an offence in each case are now incorporated into the Commonwealth Criminal Code with increased maximum penalties. In straightforward terms, the clear purpose of the provisions [….] was to ensure that Australia discharged its international obligation to make criminal the activities of […][those] who proposed to engage in hostile activities in a foreign state and/or assist foreign fighters to do so. That purpose in itself demonstrates the seriousness of [the] conduct.[…][83]

[83][2016] VSC 581, [4].

As adverted to by his Honour, the CFIR Act provisions were repealed in December 2014 by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act2014 (Cth) and foreign incursion offences were incorporated into the Criminal Code.[84]
[84]The offence created by s 7(1)(e) is located in s 119.4 (1) Criminal Code and carries life imprisonment as a maximum sentence.

Although the amending legislation took effect later in 2014 (the same year that you were in Syria), you are charged and must be sentenced in accordance with the law that applied at the time of your offending. Therefore, although some of the sentences imposed for foreign incursion offences under the new Criminal Code provisions may contain helpful statements of principle, the difference in penalty regime must be kept in mind.

The submissions of the Crown and of your own counsel differed regarding where your offending should be situated on the spectrum of objective gravity for an offence under s 7 of the CFIR Act.

The Crown described your offending as a very serious example of an offence against s 7(1)(e) of the CFIR Act. The Crown was careful to say that the Court must avoid De Simoni error.[85] That is, that it is not appropriate to treat the objective gravity of your offence as aggravated by reference to circumstances which would themselves constitute another uncharged offence.
[85]R v De Simoni [1981] HCA 31; (1980-1981) 147 CLR 383.

The Crown listed the following matters as elevating the objective seriousness of your offending:

(a) The hostile activity that you supported or promoted formed part of a prolonged civil war between the Syrian government forces and various opposition forces, involving violent occupation of large areas of the country, and loss of many lives;

(b) Your offending spanned more than two and a half months;

(c) You commenced and continued your offending from the vantage point of a warzone in Syria and in the face of your exposure to harm that was being caused by the conflict;

(d) The services that you performed included the maintenance and carriage of automatic firearms, and armed guard duty; and

(e) You were allegedly associated with JAA. As mentioned earlier, I am not satisfied beyond reasonable doubt that you performed a role for JAA, but I am satisfied that in performing services for the Chechen group(s) you were subject to weapons training and participated in reconnaissance activities in an organised military context.

Your Counsel disagreed with the Crown’s characterisation of your offending. Mr Morrissey submitted that your offending should be characterised as a ‘mid-range’ example of the offence.[86] He did not dispute that the offence spanned more than two and a half months, and involved you performing services in support of the Chechen group(s) in Syria, while Syria was riven by civil war. He did not dispute that your conduct included guard duty and the maintenance and carriage of arms. However, he submitted that the connection between your offending and the death and destruction that occurred in the Syrian conflict in 2014 was overstated by the Crown. He also argued that your offending conduct was ‘diluted’ by periods of inactivity, and medical work that was not directed to supporting a hostile activity.
[86]Defence Submissions, [9]. In oral submissions, Mr Morrissey also submitted the offence should be categorised a ‘low to mid-range overall example of the offence, sitting in the mid-range category, but we are submitting towards the end of that’, Transcript 66.

I accept that the Court must be careful not to give undeserved prominence in sentencing you to the known horrors of the Syrian conflict and must restrict itself to the elements and particulars underpinning the charge.[87]
[87]I note what her Honour Justice Adamson said in R v Alqudsi [2016] NSWSC 1227 at [94]: ‘The foreseeable, if not inevitable, consequence of armed hostilities is that people will kill and be killed or injured. I am not satisfied that it is an aggravating factor that the civil war in which the offender intended the men to participate was particularly violent, since all armed hostilities tend to result in death or injury of the participants.’

However, I am not persuaded on the balance of probabilities that your offending is to be regarded as ‘diluted’ in the way suggested by your counsel. The evidence about the nature of your medical work was vague. Even if you assisted civilians from time to time, the plight of at least some civilians would have been connected to occupation of large parts of Syria by opposition forces. Also, it is hard to see how any person could avoid having periods of inactivity across a period of just over 10-weeks.

It was also argued on your behalf that your services were of little direct assistance to the Chechen group(s), due to your lack of battlefield skills, the fact that you possessed only ‘small arms’, and due to your inability to speak Chechen languages. Also, it was submitted that the ‘ribat’ undertaken by you was of uncertain value. It was put that that these factors lessened the objective gravity of your offending. Your Counsel did concede that your participation by providing ambulance transport was probably of some value.[88]
[88]Transcript, 64–65.

I am not persuaded that your value was limited because of the factors referred to. As a tertiary educated person, an experienced nurse who was trained in Australia, and as a person fluent in English, and able to speak and read Arabic,[89] you had the capacity to lend significant assistance to those you performed services for.
[89]See Transcript of Record of Interview conducted on 29 July 2015. In your police interview, you said with respect to reading Arabic that you could ‘read kind of’ and with respect to speaking Arabic you could ‘get by’, Q42-43, 5.

I do accept that circumstances were changing rapidly even before you entered Syria, and over the period you were in Syria. I agree that there is no evidence that the services you provided to the Chechen group(s) were specifically aimed at targeting civilians, or civilian infrastructure. However, what distinguishes your case from many other cases brought under s 7, is that you were in Syria and performed services for the Chechen group(s) during a period of just over ten weeks.

In sentencing you for an offence under s 7(1)(e) of the CFIR Act, I am mindful that you are not charged with a terrorism offence, and you should not be sentenced as if the charge you have pleaded guilty to, contains the elements of a terrorist offence.[90] The relevance of you adhering to extremist ideology at the time of performing services under s 7(1)(e) of the Act, is of lesser significance than if you had been convicted of a terrorism offence. In CDPP v El Sabsabi, (‘El Sabsabi’)[91] the Victorian Court of Appeal emphasised the distinction to be drawn between offences under the now repealed CFIR Act and terrorist offences.
[90]CDPP v Sabsabi [2017] VSCA 160, [48].
[91][2017] VSCA 160.

More recently, in Elmir v R[92] (‘Elmir’) the New South Wales Court of Criminal Appeal considered the sentencing remarks of Davies J following Elmir’s conviction for a foreign incursion offence under s 119.4(1) of the Criminal Code. The applicant argued on appeal, that the elements of foreign incursion charges were motive blind, and, as such, were distinguishable from terrorism offences, despite the relocation of the foreign incursion offences into the Criminal Code. The Court of Criminal Appeal considered El Sabsabi and the earlier case of R v Succarieh (‘Succarieh’)[93] in reference to the findings of the sentencing judge that the applicant had expressed extremist ideology at the time of the offending. It was not accepted that the relocation of the foreign incursion offences into the Criminal Code meant that they should be treated as a species of terrorism.[94] However, in considering the state of mind of the offender the Court held that:

[…]while the fault element for foreign incursion offences does not include the features required to prove a terrorist act (intention to advance an ideological cause or to coerce or intimidate government), it does not follow that the extent of an offender’s radicalisation at the time of offending is legally irrelevant to the assessment of the objective seriousness of a foreign incursion offence.[95]
[…]

[92][2021] NSWCCA 19.

[93]R v Succarieh; R v Succarieh; Ex parte Commonwealth Director of Public Prosecutions [2017] QCA 85.

[94][2021] NSWCCA 19, [37].

[95]Per McCallum CJ, Garling and Wright JJ, [40].

The Court also observed that it was ‘uncontroversial that the motive or intention with which an offence is committed is relevant to the assessment of objective seriousness, whether or not it is an element of the offence.’[96] Reference was made to Adamson J‘s remarks in Alqudsi[97] that ‘[I]n assessing the relative seriousness of an offence under s 7 of the CFIR Act, the nature and extent of the services performed, the intention with which they were performed and their intended effect are all significant factors.’[98]
[96][2021] NSWCCA 19, [55].
[97][2016] NSWSC 1227.
[98][2021] NSWCCA 19, [56].

In light of the foregoing discussion, I remain conscious of the fact that while your statements about particular beliefs and attitudes are a matter of serious concern, and may be properly taken into account as part of the ‘matrix of facts that must be synthesized in the sentencing discretion,’[99] they do not elevate the objective seriousness of the actual offence. The relevant intention is that which you possessed at the time of performing services in support of others engaging in hostile activity in Syria. It is clear that you intended to support or promote the Chechen group(s) in their engagement in hostile activity in Syria within the charge period.
[99]El Sabsabi [2017] VSCA 160, [48].

In determining the objective seriousness of your offending, it is useful to have regard to other cases dealing with foreign incursion offences.[100]
[100]Although I note that no case is strongly similar to yours.

In the case of Alqudsi,[101] Adamson J imposed sentences ranging from four years to four years and six months on convictions following trial[102] for seven offences under s 7(1)(e) of the CFIR Act. The total effective sentence was eight years. Hamdi Alqudsi, who was 39 at the time of the offending, had facilitated the entry into Syria of seven men. Some of the men he assisted were never apprehended or were presumed dead. Amin Mohamed, Muhammad Musleh, and Mehmet Biber were each apprehended and prosecuted.[103] It was found that the most important aspect of Alqudsi’s role was to connect the men to another man who would act as a guide before the Syrian border crossing was attempted. Adamson J described the level of seriousness of Alqudsi’s offending as ‘moderately high’.[104]
[101][2016] NSWSC 1227.
[102]Seven counts on the Indictment in that case.
[103]Amin Mohamed was convicted of 3 charges under s 7(1)(a) of the CFIR Act. Muhammad Musleh was convicted of one rolled up charge under s 7(1)(e) of that Act, and Mehmet Biber was convicted of one charge under s6(1)(a) of that Act.
[104] [2016] NSWSC 1227, [97].

In Mohamed,[105] the offender was found guilty of three charges under s 7(1)(a) of the CFIR Act.[106] As mentioned above, Amin Mohamed was one of a number of men charged under that Act for their attempts to enter Syria or entry to Syria in 2013, facilitated by Mr Alqudsi. Mr Mohamed’s efforts included applying for a passport and booking fares on his own behalf, as well as coordinating with others in pursuit of a plan to meet up in Turkey, before being guided into Syria by a contact supplied by Alqudsi. His intention was to engage in hostile activity once he reached Syria, but his departure from Australia was stopped after his passport was cancelled. The offending in Mohamed was described by the sentencing judge as objectively very serious.[107]
[105][2016] VSC 581. Mr Mohamed was about 23 at the time of the offending. He received a total effective sentence of five years and six months; Being a sentence of 4 and a half years for each of the three charges, with six months on charges 2 and 3 served cumulatively. His non-parole period was three years and six months.
[106]Which reads: (1) A person shall not, whether within or outside Australia: (a) do any act preparatory to the commission of an offence against section 6, whether by that person or by another person.
[107][2016] VSC 581, [5].

On the other hand, in R v Musleh (No 5)[108] Adamson J found that the objective gravity of the offender’s conduct was below the mid-range. Muhammad Musleh pleaded guilty to a charge under s 7(1)(e) of the CFIR Act.[109] He was 19 years of age when he facilitated a small group of men to enter Syria by arranging air tickets, foreign currency and the like, and contacting others who would assist the group at the Turkish border. He travelled with the group to Turkey, entered Syria, but stayed for only four days before changing his mind and returning to Australia. While his offending was considered ‘useful’ to the group he was with, it was ‘relatively basic’ and largely involved participating in phone calls to and from Alqudsi. Like Biber, who was part of the same group, the offending was complete by the time the group, which included the offender, was ready to cross the border into Syria.
[108][2018] NSWSC 1927. The offender was sentenced to 2 years and 1 month imprisonment with the opportunity for release on a recognizance release order after one year.
[109]A charge under s 7(1)(a) was also taken into account arising from the same facts under s 16BA of the Crimes Act.

In Biber,[110] Mehmet Biber, who was 20 years old at the time of the offending, was charged with an offence against s 6(1)(a) of the CFIR Act.[111] He entered Syria with the assistance of Hamdi Alqudsi in 2013, and spent around three months there. He was later deported to Australia from Turkey in February 2014. Adamson J noted that the offence under s 6(1)(a) was complete when Biber crossed from Turkey into Syria, and that in assessing the relative seriousness of that offence it was necessary to have regard to his intention at the time of entry.[112] Biber’s offending in entering Syria for the purposes of engaging in armed hostilities, but not actually engaging in armed hostilities, and returning to Turkey of his own volition, was described as ‘well below the mid-range of seriousness’ for an offence under s 6.[113] In determining and dismissing a Crown appeal, the New South Wales Court of Criminal Appeal found no error in Adamson J’s assessment.[114] They noted that the sentencing judge did not err in characterising Biber’s intention as, in significant respects, ‘[…]general, not the result of any detailed forward planning or organisation, and dependent upon opportunities, as well as the decisions of others.’[115] The Court also agreed with the sentencing judge that any judgment about the merits or otherwise of the relevant armed conflict is irrelevant to the criminality associated with offences under ss 6 and 7 of the CFIR Act in the case.[116]
[110][2018] NSWSC 535.
[111]He was sentenced to four years and nine months imprisonment with a non-parole period of two years and six months. The Crown appealed that sentence, but it was confirmed by the New South Wales Court of Appeal.
[112][2018] NSWSC 535, [102].
[113]Her Honour also noted the distinction between offences under ss 6 and 7, including the different penalties [2018] NSWSC 535, [105].
[114][2018] NSWCCA 271, [30].
[115][2018] NSWCCA 271, [25].
[116][2018] NSWCCA 271, [29].

The case of Succarieh,[117] involved appeals by both the offender and the Crown to the Court of Appeal in Queensland regarding a total effective sentence of four and a half years for four offences under s 7 of the CFIR Act.[118] Both appeals were dismissed. Mr Succarieh was around 31 years old at the time of the offending.[119] The role that he[120] played was similar to that performed by Alqudsi, although the Queensland Court of Appeal accepted that Alqudsi’s offending was worse. Succarieh did not travel to Syria, but he was able to vicariously ‘participate’ in the Syrian conflict through his support of others who were there. He provided financial support to a group of Australian militants in Syria, including his brother. He made arrangements to facilitate another person’s entry into Syria. The objective seriousness was described by the sentencing judge as ‘high’ because it involved ‘very substantial, direct and successful monetary support of four persons engaged in hostilities in Syria.’[121]
[117][2017] QCA 85.
[118]Two offences under s 7(1)(a) and two offences under s 7(1)(e).
[119][2017] QCA 85, [11].
[120]Succarieh was approximately 31 at the time of the offending.
[121][2017] QCA 85, [78].

In El Sabsabi[122] the offender, who was 22 at the time of the offending, was charged with two rolled up counts under s 7(1)(e) of the CFIR Act. He had personally, and through a proxy, made 11 funds transfers to a U.S. citizen to facilitate that person’s travel from the U.S. to Syria (Charge 1) and subsequent engagement in hostile activity in Syria (Charge 2).[123] He expressed extremist ideological views at the time of the offending. He kept in contact with the recipient of the funds and sought updates about his exploits in Syria. In return, he received graphic images of slain pro-government soldiers. The offending in El Sabsabi was described by the Victorian Court of Appeal as objectively very serious.[124]
[122]Sentenced by Lasry J: R v El Sabsabi [2016] VSC 740, Crown appeal dismissed: DPP v El Sabsabi [2017] VSCA 160.
[123]He was sentenced to 44 days imprisonment and a two year CCO. The Crown appeal against sentence failed.
[124][2017] VSCA 160, [48], [67].

In R v Cerantonio & Ors,[125] the six offenders were sentenced for joint commission of a foreign incursion offence under s 119.4 of the Criminal Code.[126] Cerantonio, who was 31 at the time of the offending, was the principal offender and ringleader in a failed plan to depart Australia by boat, and to enter the Philippines for the purpose of engaging in a hostile activity there. The overall objective was the overthrow of the government, with an apparent motivation to install Sharia law. Although Cerantonio and some of the other offenders were arrested before their boat had even left Australian shores, the sentencing judge described Cerantonio’s offending as very serious, ranking his moral culpability as greater than the other five offenders.
[125][2019] VSC 284.
[126]The sentences imposed were as follows: Mr Cerantonio: seven years imprisonment, with a non-parole period of five years and three months. Mr Thorne: three years and ten months imprisonment, non-parole period of two years and ten and a half months; Mr Murat Kaya: three years and eight months imprisonment, non-parole period of two years and nine months. Messrs Dacre, Granata and Kadir Kaya: four years imprisonment, non-parole period three years.

In the earlier mentioned case of Elmir,[127] the offender who was 26 at the time of his offending, was dealt with for a foreign incursion offence under the Criminal Code,[128] on the basis that he travelled to Turkey in 2016 and spent two months there preparing to cross into Syria to fight for Islamic State. He had collected military equipment, and stayed in an Islamic State safe house before being arrested by Turkish Police and deported back to Australia. The objective seriousness was found to be slightly below the mid-range.[129]
[127][2019] NSWSC 1040. Sentence imposed by Davies J: five years and five months (non-parole period of four years) for an offence under s 119.4 of the Criminal Code; Appeal against sentence dismissed by McCallum JA, Garling and Wright JJ [2021] NSWCCA 19.
[128]Criminal Code s 119.4.
[129]The co-offender to Elmir was sentenced in R v EB [2018] NSWSC, 201 and his offending was described as of low level seriousness.

In assessing the objective gravity of your offending, taking into consideration the above cases, and having regard to the particular facts of your case, I conclude that your offending falls in the higher end of the range of objective gravity for this offence. I have reached this conclusion based on the length of time your offending continued for, your level of commitment to and enthusiasm for the services you were performing throughout the charge period, the range of your offending conduct, and the fact that it included reconnaissance, maintaining weapons, and performing armed guard duty for opposition combatants within a foreign country that you knew to be beleaguered by civil war and disorder at the time. Despite the events you knew to be going on around you in Syria at the time of your offending, your level of motivation and commitment to the services that you were performing did not diminish.

Punishment,[130] General Deterrence[131] and Denunciation

[130]Crimes Act, s 16A(k).

[131]Crimes Act, s 16A(ja). The Crown noted that the date of the offence pre-dates the inclusion of general deterrence in paragraph (ja) of s 16A(2)(A) of the Crimes Act but submitted that general deterrence is nonetheless recognised as a relevant sentencing consideration by the common law, as is denunciation

General deterrence, denunciation and just punishment are important considerations in sentencing for an offence of the kind that you have pleaded guilty to. In Alqudsi, Adamson J held that general deterrence was an important consideration for offences against s 7 of the CFIR Act,[132] whilst also observing that one of the purposes of incorporating an element of general deterrence is to ensure public confidence in the administration of justice is maintained.[133]
[132][2016] NSWSC 1227; Adamson J stated at [98] ‘The provision of services to another with the intention that the person enter a foreign State to engage in armed hostilities is to be denounced and deterred. As the men who went to Syria appeared to be willing to die for the cause, they are unlikely to be deterred by any sentence an Australian court might impose. However, a person who is contemplating performing services to assist persons to go to Syria to fight might be in a different category. The offender himself was clearly worried about his activities being detected.’
[133][2016] NSWSC 1227, [98] citing Markarian v The Queen (2006) 228 CLR 357, [2005] HCA 25.

The Victorian Court of Appeal in El Sabsabi also held that ‘[G]enerally, deterrence (both general and specific), denunciation and just punishment will be significant sentencing considerations for an offence against s 7(1)(e).’[134]
[134][2017] VSCA 160, [69].

Your counsel conceded that that some measure of general deterrence is appropriate, whilst arguing that it should not receive the same primacy as is required for a terrorism offence. I accept that submission. However, the public must understand that laws aimed at prohibiting foreign incursion offending reflect the importance of preventing Australian citizens becoming embroiled in foreign conflicts.

Specific deterrence,[135] Contrition,[136] and Prospects for rehabilitation[137]

[135]Crimes Act s 16A(2)(j).

[136]Crimes Act s 16A(2)(f).

[137]Crimes Act s 16A(2)(n).

I accept that you surrendered to the authorities, following negotiations by your lawyers with the Australian Federal Police in 2015. This shows your willingness to face up to the realities of your situation at that time. I also accept that your absence of prior convictions is favourable to you when considering specific deterrence and your prospects for rehabilitation. Also in your favour, is the fact that you have completed several courses during your time on remand.[138] Therefore, even if you can no longer work in your former occupation, those courses will help equip you for other work when you are released. Your marriage is no longer on foot and your former wife Lina M, and your children, have moved on with their lives since your return from Syria. You remain supported by your mother[139] father and stepmother.[140]
[138]Certificate II in Kitchen Operations: 2016 – Use hygienic practices for food safety, Certificate II in Cleaning Operations; 2016 – Maintain carpeted floors; 2016 – Clean glass surfaces; 2016 – Maintain furniture, fittings and room dressing; 2016 – Sort and remove waste and recyclable materials; 2017 –Participate in workplace safety arrangements; Certificate III in General Education for Adults; 2017 – Use formal mathematical concepts and techniques to analyse and solve problems Certificate I in Information, Digital Media and Technology; 2016 – Operate word processing applications 2016 –Operate spreadsheet applications; 2016 – Operate presentation packages; 2016 – Design basic organisational documents using computing packages; Certificate I in Employment Pathways; 2015 –Use basic strategies for work related learning; 2015 – Develop study skills.
[139]Aisha Hyatt, who attended court for the plea hearing and provided a written reference.
[140]Kevin and Leah Brookman. Kevin Brookman provided a written reference.

Ideology and attitude while in Syria

On your behalf, it was disputed that your ideological outlook around the time of the offending was unfavourable to you when considering specific deterrence and rehabilitation. Mr Morrissey disputed that you were motivated to go to Syria by violent, or jihadist ideology, suggesting instead that you were motivated to help people.[141] He conceded that you did see your own activities from time to time in jihadi terms, and that you did express ‘jihadi friendly’ comments with enthusiasm, but it was put that your theological statements were heartfelt and informed your actions.[142] It was also put that that those beliefs did not lead you to express or perform ‘barbarous acts’.[143]
[141]Transcript, 67.
[142]Transcript, 67.
[143]Transcript, 67.

However, the Crown submitted the need for specific deterrence in your case is high because your strongly held extremist beliefs were sufficient for you to leave your wife and five children and travel to a warzone in Syria. While there, your social media posts demonstrated that you felt ‘strongly justified, even exhilarated’, by performing services for those you assisted.[144] Regarding the need for specific deterrence and your prospects for rehabilitation, the Crown referred to the enduring nature of your commitment to the Chechen group(s) as shown by your actions in Syria even after the end of the formal charge period.
[144]Prosecution Submissions, [45].

I am satisfied that at the time of committing the offence, you were convinced of the righteousness of your own actions.[145] In hashtags and captions to many of your social media posts you appeared to self-identify as a ‘mujaahid’,[146] or to adopt an association with ‘mujahideen’ and the concept of ‘jihad’.[147] I also take into account your uncharged conduct after the charge period as a reflection of the strength of your beliefs and attitudes.
[145]See for example the following posts: on 3 May 2014 at 15, Plea Opening: ‘“Honestly how many of us can truly say we love Allah and His messenger saas? Of course we will all say we do, but In order to prove who are and who arent truthful in their claim we need only look at our actions. Do we follow the commandments of Allah, do we abstain from haram, Do pray n on time? We say we love the prophet saas but do we imitate him in our manner and actions? Can we really say we love him [Allah] and want to be like sahaabah when the idea of hijra or jihad isnt even a consideration for many? If we want to be believed in our world then let our actions do the talking for us”. On 11 May 2014, at 16, Plea Opening: “Abdullah Ibn Mubarak wrote in a letter to Al-Fudayl Ibn Iyaadh: “Oh you who offer prayer in the sacred mosque! Had you witnesses us in the battlefield You would know that, compared to our Jihaad, Your worship is child’s play. For every tear you have shed upon your cheek, We have shed in its place blood upon our chests. You are playing with your worship, While worshippers offer your worship, Mujahideen offer their blood and person”. “In 1987 shaykh Adullah’Azzam presented a list of reasons why Muslims should join the jihad” In order that the disbelievers do not dominate: The scarcity of men. Fear of Hell-fire. Fulfilling the duty of jihad, and responding to the call of the Lord….And hoping for martyrdom.”
[146]See for example: Plea Opening, 23, 24, 25, 26, 28, 29, 30, 31, 32, 33, 34, 35, 36.
[147]See for example: Plea Opening, 29, 33, 34, 35, 37, 38, 40, 42, 43.

As already mentioned, the evidence as to your attitudes and beliefs at the time of the offence is concerning. I accept that the passage of time since your 2014 social media posts limits their significance to your current outlook. However, the absence of evidence that you have modified your position, together with your correspondence with a prisoner charged with ideologically-motivated offending, Prisoner C, which I will discuss further shortly, leads the Court to question whether there has been any significant change in your attitudes over the years you have been on remand.

Ideology after leaving Syria until the present time

The Crown also submitted that specific deterrence is important because there is no evidence that you have recanted the extremist ideology that drove you to commit the offence, or that you would behave differently in the future. The absence of such evidence was said to be relevant to assessing your risk of recidivism and to considering protection of the community.[148] It was argued that nothing short of compelling sworn evidence would substantiate an assertion that your attitude has changed.
[148]Transcript, 92.

The contrary position was put by your counsel to the effect that the Court should find that you no longer adhere to an ideology that would enliven a community protection issue.[149] Submissions were made about your attitude to Islamic State as espoused in a discussion with an Australian journalist in May 2015.[150] You are not charged with performing services for Islamic State, so your beliefs and attitude about that organisation are not central to the task of sentencing you. For the avoidance of doubt, I should indicate that I do not regard your comments to the journalist as providing significant insight into any views that you might have held about Islamic State at that time.
[149]Transcript, 72.
[150]Nick McKenzie.

Mr Morrissey also referred to the correspondence you conducted with Prisoner C. You and Prisoner C have never met in person.[151] During your application for bail in July 2020, the Court was made aware of the nature of the relationship and the contents of correspondence between you and that other prisoner.[152] Mr Morrissey announced that you severed the relationship after pleading guilty to the current charge.[153] It was also put on your behalf that you have not been granted access to de-radicalisation programs in prison at this stage.[154] However, you meet with the visiting Chaplain in individual and group settings and you have completed an application to participate in the Court Integrated Services Program (‘CISP’).
[151]Transcript, 73.
[152][2020] VSC 470R. That ruling was suppressed from publication pending your trial.
[153]A letter was sent by you cementing this position on 12 April 2021, and asking the prison authorities not to forward any correspondence from that person to you, Transcript 73, 74, 86.
[154]Due to you not yet being sentenced.

I consider that the communications you had with Prisoner C show that, at that time, you maintained the sorts of strong ideological views you espoused at the time of your offending. I am not satisfied[155] that there is sufficient evidence that your attitudes have modified since 2014. In light of all the above mentioned matters, I do consider specific deterrence is relevant in sentencing you.
[155]On the balance of probabilities.

Regarding contrition, your counsel did not seek to persuade me that there was any significant evidence of contrition other that the fact of formally accepting responsibility by your plea of guilty. I have seen no evidence that leads me to believe that you regret your offending.

The Crown submitted that there is no evidence that would support a favorable finding about your prospects of rehabilitation. It is difficult to predict your future path. You were 37 years old when you left for Syria and it is significant that at that age, you had no criminal history. Also in your favour are the courses you have undertaken in prison, the fact that you retain the support of your parents, step-mother and brother Richard, and the fact that you have indicated a willingness to undertake CISP when available. Of course, whether you ultimately participate in CISP, and the extent of any such participation is, as yet, unascertained.

Rehabilitation is an important aspect of sentencing and, if successfully achieved, benefits the wider community. Given the kinds of extremist attitudes expressed by you at the time of your offending, a failure to embrace opportunities for rehabilitation may give rise to a community protection issue. Ultimately, your prospects of rehabilitation must be assessed in light of all the evidence available to the Court, including the negative indicators such as your correspondence with Prisoner C, and the favourable matters that I have already summarised in these reasons. On the basis of the limited material currently before the Court, I assess your prospects for rehabilitation as only fair. However, I acknowledge that your prospects for rehabilitation may markedly improve if you approach CISP or other similar programs with genuine commitment.

Comparative cases

I have perused other sentences imposed for foreign incursion offences noting that there is a fairly small cohort of cases under the now repealed CFIR Act. The Crown submitted that the Court should have regard to sentencing practices throughout Australia, including sentences handed down in other states and territories.[156] This is the approach I have adopted, paying particular attention to CFIR Act cases that have been considered on appeal.
[156]R v Pham (2015) 256 CLR 550, [18].

Sentencing for foreign incursion offences under the Criminal Code is also relevant, despite the higher maximum penalty available under the Criminal Code.[157] I agree with the Crown’s submission that there is no decided case that is especially comparable to your case.[158]
[157]See for instance: R v EB [2018] NSWSC 201; R v Elmir [2019] NSWSC 1040; R v Cerantonio & Ors [2019] VSC 284.
[158]Cases not already referred to include: R v Little (Unreported, Judge McGill, DC No 122 of 2013, 26 September 2013) can be distinguished due to the offender’s serious health issues. DPP v Kocoglu [2019] VCC 1838, is distinguishable as the offender’s conduct was very confined. Further, R v Kruezi [2020] QCA 222, is distinguishable because the offender was charged with charges under the CFIR Act and terrorism charges under the Criminal Code. The case of R v Taleb (No 5) [2019] NSWSC 720 is also distinguishable given the offender in that case had schizophrenia, which was found to play a significant role in the commission of the offence, see [53]. Mr Taleb was also only 22 at the time of his offending.

Conclusion

Pursuant to s 16A of the Crimes Act 1914 (Cth)(‘Crimes Act’), I must impose a sentence that is of a severity appropriate in all the circumstances of the offence. I must consider all matters that are relevant to your case, and that are known to this Court, including, but not limited to, the matters set out in s 16A(2) of the Crimes Act.[159]
[159]I have no evidence before me of the other matters in s 16A(2) of the Crimes Act that I have not referred to.

I am satisfied that no sentence other than imprisonment is appropriate in the circumstances of your case.[160]
[160]S 17A of the Crimes Act.

The factual foundation for the charge you have pleaded guilty to involves offending of high objective gravity. You cannot rely on youthful immaturity, or naivety to mitigate the offence. Although it was put on your behalf, that the period you have spent on remand represents an adequate sentence for the offence, my synthesis of all the matters already canvassed in these reasons leads me to conclude that a head sentence is required that exceeds that period.

Sentence

Mr Brookman please stand.

Adam Brookman, on the charge of performing services in support or promotion of the commission of an offence against section 6 of the CFIR Act contrary to s 7(1)(e) of that Act, I sentence you to six years and eight months imprisonment. I fix a non-parole period of five years.

The sentence I have just imposed commences today. I will reckon 2161 days, not including today’s date, as having already been served, being the period of time you have been on remand since the date of your arrest (24 July 2015) up to and including 22 June 2021.[161]
[161]In accordance with ss 16E(2), (3) of the Crimes Act.

That sentence requires you to serve five years in custody before being eligible to apply for parole. A grant of parole would allow you to serve the remainder of your sentence in the community (called your ‘parole period’). Your parole would be subject to conditions. If you breach those conditions without a reasonable excuse, your parole could be revoked and you could be returned to custody for all or part of your remaining sentence.

But for your plea of guilty, I would have imposed a sentence of eight years and six months imprisonment, with a non-parole period of seven years.

Lastly, I must warn you[162] that, because you have now been convicted of an offence under s 7(1)(e) of the CFIR Act, an application may be brought under Division 105A of the Criminal Code for a continuing detention order, requiring you to be detained in prison after the end of your sentence for this offence, or at the end of any later sentence if you are continuously detained in custody and would otherwise be released into the community.
[162]Pursuant to s 105A.31 of the Criminal Code, because of the conviction for an offence referred to in paragraph 105A.3(1)(a)(v) of the Criminal Code, being ‘an offence against the repealed Crimes (Foreign Incursions and Recruitment) Act 1978[…]’.

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[2021] VSC 367

23 June 2021