R v Cerantonio & Ors
[2019] VSC 284
•3 May 2019
IN THE SUPREME COURT OF VICTORIA
Not Restricted
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0078; S CR 2017 0079
S CR 2017 0080; S CR 2017 0081
S CR 2017 0082; S CR 2017 0104
Between:
THE QUEEN
-and-
ROBERT EDWARD CERANTONIO
PAUL JAMES DACRE
ANTONINO ALFIO GRANATA
SHAYDEN JAMIL THORNE
KADIR KAYA &
MURAT KAYA
Accused
JUDGE:
Croucher J
WHERE HELD:
Melbourne
DATES OF HEARING:
18-19, 21, 22, 25 & 26 February and 15 March 2019
DATES OF SENTENCES:
22 & 26 February and 3 May 2019
DATE OF REASONS:
3 May 2019
CASE MAY BE CITED AS:
R v Cerantonio & Ors
MEDIUM NEUTRAL CITATION:
[2019] VSC 284
First revision: 26 June 2019
CRIMINAL LAW — Sentencing — Six men, by joint commission, committed offence of engaging in conduct preparatory to offence of entering the Philippines with intention of engaging in a hostile activity, namely encouraging others to achieve overthrow of the Philippines Government by force or violence — Preparatory conduct included buying SUV and boat and (except in case of one accused, who decided against going to the Philippines) travelling to Queensland with boat in tow — Five accused did not themselves intend to provide encouragement to others to overthrow government by force or violence but intended their principal would do so, albeit with unknown persons, by unknown means and at an indeterminate time — While serious aspects of offending, offences by five accused towards lower end of gravity — Principal accused’s offence substantially more serious, mainly because of his greater moral culpability — Pleas of guilty — No (or no relevant) prior convictions — Delay between arrest and sentence — Court not satisfied of renunciation of extremist views, but accused showing signs of positive change — Good prospects of rehabilitation for five accused — Reasonable to moderate prospects of rehabilitation of principal accused — Court not satisfied of exceptional hardship to family but offenders’ time in custody not without difficulties — One accused’s time in custody particularly difficult as a result of serious back injury and related consequences — Relevance of general deterrence, specific deterrence, curial denunciation, protection of the community and rehabilitation — Parity — Crown concessions in response to defence submissions on sentence.
SENTENCES — On each of three accused (Paul Dacre, Antonino Granata and Kadir Kaya), sentence of four years’ imprisonment with non-parole period of three years — In each case, but for plea of guilty, sentence of six years’ imprisonment with non-parole period of four years and six months.
SENTENCE — On accused who decided against going to the Philippines (Murat Kaya), sentence of three years and eight months’ imprisonment with non-parole period of two years and nine months — But for plea of guilty, sentence of five years and six months’ imprisonment with non-parole period of four years and one-and-a-half months.
SENTENCE — On accused who suffered hardship of back injury in custody (Shayden Thorne), sentence of three years and ten months’ imprisonment with non-parole period of two years and ten-and-a-half months — But for plea of guilty, sentence of five years and nine months’ imprisonment with non-parole period of four years and four months.
SENTENCE — On principal accused (Robert Cerantonio), sentence of seven years’ imprisonment with non-parole period of five years and three months — But for plea of guilty, sentence of ten years’ imprisonment with non-parole period of seven-and-a-half years.
Criminal Code (Cth), ss 11.2A, 105A.3, 105A.23 & 119.4; Crimes Act 1914 (Cth), ss 16A, 16E, 16F, 17A, 19AA, 19AB, 19AG, 19AKA, 19AL, 19ALA, 19AN & 19AU; Sentencing Act 1991 (Vic), ss 6AAA & 18.
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Appearances:
Counsel
Solicitors
For the Crown
Mr R Maidment QC with
Ms C Fitzgerald
Solicitor to Commonwealth Director of Public Prosecutions
For Robert Cerantonio
Mr J Williams with
Dr G Boas
Stary Norton Halphen
Criminal Lawyers
For Paul Dacre
Mr J McMahon SC with
Ms G Morgan
Slades & Parsons
Criminal Lawyers
For Antonino Granata
Mr C Farrington with
Mr C Terry
Patrick W Dwyer
Barristers & Solicitors
For Shayden Thorne
Mr S Moglia with
Ms G Connelly
Doogue + George
Barristers & Solicitors
For Kadir Kaya
Mr D Hallowes SC with
Ms F Todd
Galbally & O’Bryan
Defence Lawyers
For Murat Kaya
Mr D Dann QC with
Mr M Goldberg
James Dowsley & Associates
Criminal Law
HIS HONOUR:
Overview
On 10 May 2016, Robert Edward Cerantonio, Paul James Dacre, Antonino Alfio Granata, Shayden Jamil Thorne and Kadir Kaya, all of whom hail from Melbourne, were arrested by police near Laura, a hamlet in the far north of Queensland. The group had travelled there from Victoria in a Hyundai SUV towing a seven-metre Haines Hunter boat. Police had had the men under surveillance for a considerable period and suspected that they had been preparing to head overseas in the boat to a foreign country for the purpose of engaging in a hostile activity in Syria or Northern Iraq. Each man was charged individually with an offence of that nature against s 119.4(1) of the Criminal Code (Cth) (“the Code”).
On 27 May 2016, police arrested a sixth man, Murat Kaya, in Melbourne, and charged him with the same offence. He had been involved in the group’s activities over previous months but had not gone with them to Queensland. Instead, he had remained in Victoria.
Having been committed for trial in this Court a year or so later, all six accused were charged jointly on indictment with an offence against s 119.4(1) and in reliance on the joint commission provisions in s 11.2A of the Code. That indictment and its particulars have taken a few different forms, but the essence of the Crown case eventually became this. It was alleged that, between 22 October 2015 and 10 May 2016, each accused joined in an agreement to engage in conduct in Australia, and did engage in such conduct, preparatory to one or more of them entering the Philippines with intent to encourage or join with others there in conduct aimed at overthrowing the government of the Southern Philippines by force or violence.
Following a substantial amount of pre-trial argument concerning all manner of things, the cases against all accused progressively settled as pleas of guilty on substantially agreed factual bases. On 12 December 2018, Messrs Dacre, Granata and Kadir Kaya pleaded guilty. The next day, on 13 December 2018, Mr Cerantonio also pleaded guilty. Soon after the Christmas break, on 8 February 2019, Murat Kaya followed suit.
I heard the pleas in mitigation of Messrs Dacre, Granata and Kadir Kaya on 18 and 19 February 2019, and Murat Kaya’s plea on 21 February 2019. I sentenced those four accused on 22 February 2019.
The same day, Mr Thorne pleaded guilty to the charge. I heard his plea in mitigation on 24 February 2019 and sentenced him the next day.
Messrs Dacre, Granata and Kadir Kaya were each sentenced to four years’ imprisonment with a non-parole period of three years.
Murat Kaya was sentenced to three years and eight months’ imprisonment with a non-parole period of two years and nine months.
And Mr Thorne was sentenced to three years and ten months’ imprisonment with a non-parole period of two years and ten-and-a-half months.
At the time of imposing those sentences, I provided only summaries of my reasons. While I had come to a firm view about the sentences to be imposed, and while I had articulated in my own mind the essential reasons for arriving at such sentences, I was not, at those times, in a position to give those detailed reasons, either orally or in writing, in a satisfactory form. Usually, of course, I would not pass sentence on any accused unless and until those detailed reasons could be delivered at the same time. However, in the particular circumstances, I considered it both necessary and appropriate to depart from the usual course and move instead promptly to sentence while providing only summaries of my reasons.
Four principal inter-related considerations caused me to take that approach. First, when allowance was made for pre-sentence detention served to that point, the non-parole period on the sentence I intended to impose on Murat Kaya was due to expire very soon — in fact, within days of sentencing. Mr Thorne was in a similar — albeit not quite as acute a — position: his non-parole period was due to expire in another month or so. And the non-parole periods of Messrs Dacre, Granata and Kadir Kaya were due to expire on or about 10 May this year, which was still relatively soon. Secondly, as I understood it, the parties were agreed, either expressly or by implication, that the sentences I intended to impose on those five accused were open. Thirdly, in those circumstances, and given that the questions whether — and, if so, when — the accused should be released on parole would need to be considered by the Attorney-General for the Commonwealth, which consideration I expected would take at least some time, I considered it preferable, in fairness to both the Attorney and the accused, especially Murat Kaya and Mr Thorne, that that process should be put in train as soon as possible. Further, that process, I expected, could not commence, in each case, until sentence was passed. The final consideration was that none of the parties objected to the course proposed, which included providing my detailed reasons at a later date. Those more detailed reasons will form part of the reasons I am about to give.
Mr Cerantonio, however, was, and remains, in a different position from his co-accused. While his plea in mitigation was initially to be heard on 18 February 2019, his counsel requested that the hearing be adjourned to 15 March 2019, as it was thought that the matter would not be ready to proceed until then. The Crown took no objection to that application. It was also apparent that, given his more culpable role in the offending and the consequence that, in all likelihood, he would receive a substantially heavier sentence than his co-accused, there was not the same potential urgency in passing sentence on Mr Cerantonio. In the result, his plea in mitigation was heard on 15 March 2019 and the matter was thereafter adjourned ultimately until today for sentence.
I shall now turn to my detailed reasons for sentencing all six accused. At the conclusion of these reasons, I shall announce the sentence to be imposed upon Mr Cerantonio.
Background to and circumstances of the offending
So, first, I shall say something about the background to and circumstances of the offending.
Written openings exhibited
Counsel for the Crown read out and tendered a very detailed opening on the pleas in mitigation of Messrs Dacre, Granata and Kadir Kaya. That opening was adopted, by reference, on each of the subsequent pleas in mitigation of Murat Kaya and Mr Thorne respectively. A similar, but not identical, detailed opening was read out in part, and tendered in toto, on the plea in mitigation of Mr Cerantonio. While I have had regard to the contents of both openings, since they are very long, I think it is preferable to summarise their contents presently instead of reproducing them in full in these reasons.
Overview of Crown case
In short, the Crown case is that, between 22 October 2015 and 10 May 2016, Messrs Dacre, Granata, Thorne, Kadir Kaya and Murat Kaya entered into an agreement with one another to do acts in preparation for one or more of them to enter the Philippines and that Mr Cerantonio would have the intention, at the time of entry, of engaging in a hostile activity in that country directed at overthrowing the government of the Southern Philippines by force or violence (“the agreement”). In the case of Mr Cerantonio, he agreed with his co-accused that he and one or more of his co-accused would enter the Philippines with the same intention. In each case, the motivation for doing so was to enable the Southern Philippines ultimately to be governed by Islamic law, otherwise known as “Sharia law”.
During the period covered by the indictment, all six men were Australian citizens.
The hostile activity each of the accused intended that Mr Cerantonio would engage in was to encourage persons of the Islamic faith who were involved in, or who were willing to carry out or facilitate, actions directed at achieving the overthrow by force or violence of the government of the Southern Philippines. It is not alleged that the “persons of Islamic faith” were, or were to be, members of a particular group.
From at least 22 October 2015, each of the other accused looked to Mr Cerantonio for religious guidance and leadership. It was the adoption by each of the other accused of Mr Cerantonio’s advocated support for the establishment of an Islamic State under Sharia law in the Southern Philippines that persuaded them to join with him in the agreement the subject of the charge.
By 22 October 2015, none of the six men had a passport to assist him to gain entry to a foreign country or to assist him to leave Australia with a demonstrable right of re-entry. In those circumstances, they agreed to acquire a boat and other necessary equipment to leave Australia in a covert manner to facilitate ultimate entry to the Philippines. Each of the six men initially intended that their wives and children would travel with them out of Darwin to the Philippines. Later, when the plan changed to the departure of the accused from Cape York, it was intended that their wives would join them later in the Philippines.
Each of the six men entered the agreement intending that the offence be committed and, in pursuit of that agreement, the offence was committed. While the Crown needed to prove only a single preparatory act in Australia by any of the six men pursuant to that agreement, the evidence demonstrates that the following acts were carried out by one or more of the six men pursuant to the agreement: seeking to obtain and equip a boat suitable to enable the six men (or some of them) to leave Australia covertly; and purchasing a vehicle and a boat, and driving the vehicle and boat to the north of Queensland.
The Crown case in more detail
I turn now to the Crown case in greater detail.
In the months before and during the period of offending, a number of Islamist militant groups operated in the Southern Philippines. They were particularly active in and around Mindanao. They included the Abu Sayyaf Group, various factions of that group, and the Bangsamoro Islamic Freedom Fighters. In July and August 2014, the Abu Sayyaf Group and the Bangsamoro Islamic Freedom Fighters pledged allegiance to the Islamic State. In the first half of 2016, there was an increase in communication of Islamic State propaganda targeted at the Philippines.
Between 5 June 2013 and 22 July 2014, Mr Cerantonio resided in the Philippines. During that period, he encouraged others to support or engage in force or violence to establish or extend the application of Islamic law. He did so overtly, by publishing widely on the internet video-recordings of his own speeches to that effect and by posting on ‘Twitter’ various writings and comments authored by him and others which advocated such conduct.
On 19 May 2014, Mr Cerantonio posted on Twitter an article he wrote which specifically encouraged the overthrow of the government of the Southern Philippines by force or violence and the establishment of Islamic law. In the article, he justified his advocacy of that cause in the following way:
Allah commands us as believers to fight those who have fought us and driven us out from our lands that we ruled over. This means that we as Muslims MUST fight the Philippines government as they are the ones who have taken control of our lands from us and instituted un-Islamic laws upon us.
On about 8 June 2014, Mr Cerantonio posted on Twitter an internet link to a bibliography of his own audio and video lectures in order further to encourage others to support or engage in force or violence to establish or extend the reach of Islamic law.
On 4 July 2014, Mr Cerantonio’s Australian passport was cancelled by the Minister. On 22 July 2014, he was deported from the Philippines to Australia. He resided in this country thereafter.
After Mr Cerantonio’s return to Australia, he and each of the other five accused became acquainted.
Between 1 March 2015 and 10 May 2016, there were numerous contacts among the six accused, many of which related to matters of an extremist Islamist kind or which reflected such thinking. For example, on 17 July 2015, all of the accused (except Mr Dacre) attended an organised meeting at Footscray Park, which involved flying Islamic State flags. Five days later, on 22 July 2015, Victoria Police attended the home of Mr Cerantonio where they photographed similar flags.
On 3 August 2015, Mr Thorne became part of an online chat-group, Al-Ghurabaa, with the identity of “Qaahir Al-Saleeb”, which, translated, means “Destroyer of the Kuffar”. The picture profile attached to the identity featured a black flag with circular Islamic State symbol as well as the tagline “rattle of the swords” (or something similar). Mr Thorne said that the need for different account names was to keep “the Feds” off his back. Other members of the chat group included Mr Cerantonio and Mr Dacre, who used the name “Faruq Khattab”. On 13 August 2015, Mr Thorne shared a link in the chat group to an article entitled “Authorities brace for ugly scenes as Australian patriot plan mosque protests”, and then posted the comment, “it’s time”. On 25 August 2015, he again shared a link in the chat group to an article concerning a sheikh giving allegiance (or bay’ah) to Islamic State, and then posted the remark “Takbeeeeeer, Allahu akbar”, which means “God is the greatest”, before requesting that others pray for the sheikh because he was still in prison and would be under a lot of pressure.
At different times during 2015 and 2016, Messrs Kadir Kaya, Granata, Thorne and Murat Kaya respectively sought to leave Australia but were refused departure by the authorities. All six accused eventually had their Australian passports cancelled.
On 11 October 2015, following his failed departure, Kadir Kaya sent an email to presenter Neil Mitchell at Melbourne radio station 3AW in which he challenged “Tony full of bull” to let him leave Australia, and said that he hated this country. On 15 October 2015, during a radio interview with Mr Mitchell, Mr Kaya stated that he disagreed with the values of the Australian Government and had tried to leave, but was prevented from doing so. He said he wanted to join the Turkish military. Although he denied that he would fight for the Islamic State, he was at a loss to explain why he would fight against the Islamic State with Turkey, a position supported by the Australian Government, whose position on that issue and values he rejected.
On the same day, Mr Granata telephoned 3AW live on air and stated that he was in the same boat as Kadir Kaya.
During the second half of 2015 and through to the early part of 2016, several of the accused variously searched online for boats, navigation equipment, camping gear and the like. They also attempted to obtain bank loans for one or more of their number, and discussed matters such as hijrah and travel to the Philippines.
The term “hijrah” means “migration”. In a literal Islamic context, it refers to the migration of the Muslim prophet Muhammad from Mecca to Medina in the year 622. The term also refers to the migration of Muslims from the land of disbelievers to the land of Islam to live under the rule of Sharia. Hijrah and the phrase “hijrah in the cause of Allah” also refer to the migration of Muslims to a conflict zone to participate in the conflict against the disbelievers.
On 14 November 2015, Mr Cerantonio posted a reply on Facebook to a previous post concerning the requirement for hijrah:
There are [two] types of hijrah. The first is to the land where Muslims are predominant and this is based upon the command of the Prophet of Allah to not live among the disbelievers. This type of hijrah is not difficult as there are lands from Malaysia to Morocco to choose from. The second type is the main hijrah and that is to the lands of Islam (i.e. the lands ruled by the Shari’ah in its entirety). If you are not able to fulfil the [second], then the first is still a requirement.
On 2 December 2015, during a conversation involving Mr Granata and the Kaya brothers, Mr Cerantonio stated that the Muslims in the Philippines should not accept autonomy but, rather, should rise and say they want Sharia law.
On Christmas Day 2015, Mr Cerantonio delivered a sermon, for which Messrs Granata and Murat Kaya were present. Later that day, Mr Cerantonio responded to a question posed to him on Facebook, saying, “Hijrah is compulsory except in cases of absolute necessity to remain behind.”
On 6 January 2016, Murat Kaya contacted Tracy Geddes about the potential purchase of the MV Rushcutter, which was a large vessel advertised for sale in Darwin for $50,000.
On 11 January 2016, Haci Kaya made deposits of $30,000 and $40,000 respectively into the bank accounts of his sons Kadir and Murat Kaya. Later that day, Murat Kaya withdrew $5,000 from his account and paid it into the account of Ms Geddes as a deposit for purchase of the MV Rushcutter. He called Ms Geddes to confirm receipt of the funds and sent her a text message with his email address.
On 11 January 2016, Mr Cerantonio accessed numerous links to online news articles relating to the Islamic State, including links concerning articles relating to the IS declaration of a province in Mindanao.
On 15 January 2016, Mr Cerantonio delivered a sermon in the presence of Mr Granata and the Kaya brothers and their father, in which he spoke about the Muslims on the island of Cebu and in Mindanao. He said:
These are people who are willing to fight in the path of Allah. It is not like any other area you go to. You will find some areas where you have fear behind them. They know their religion, but when it comes to jihad, they are not ready for this because they are not accustomed to it. As for the land of Mindanao, you will find people who are ready for jihad – jihad runs in their veins. You don’t come to them and teach them how to fight but what you will do is find people who will teach them properly. We will teach them the religion of Allah, we will teach them the depths of the religion. And this, understand O’Muslim, is what we were supposed to listen to. Knowing Allah subhanahu wa-ta’ala. There is no greater deed than worshipping Him.
The Crown says that Mr Cerantonio intended to convey in the highlighted passage that he would teach the mujahedeen in Mindanao the religious justification for pursuing jihad with the intention of establishing an Islamic State under Sharia law.
After the sermon, the same men (except Kadir Kaya) remained together and discussed various issues. During the conversation, Mr Cerantonio said, among other things, the following:
Allah didn’t say you’re going to win every battle. But Allah will give you victory. One day you will be killed and, if you die as a martyr, your place is Paradise. Or you get victory on the battlefield. For us, we can’t lose.
On 2 February 2016, during a conversation with Mr Granata and Kadir Kaya, Mr Cerantonio said that “you don’t go into a land of jihad and give talks”. Further, when speaking about the Philippines, he said:
These are the people you are going to. You have to understand. The city is half Muslim, half Christian. The men, more than anyone, the men have always been the ones who want to Christianise the city, like they’re absolute crusaders. This woman openly said, Zamboanga will never be a Muslim land …
On 17 February 2016, Murat Kaya telephoned Ms Geddes and said that he and a mate were hoping to leave the following day and arrive in Darwin on about 22 February 2016.
On 19 February 2016, Mr Dacre and Murat Kaya set off for Darwin in a hire car, where they intended to inspect and, if found to be suitable, purchase the MV Rushcutter. The other four accused were planning to join them in Darwin with the intention of leaving Australia in the MV Rushcutter, with their wives and children.
At an early stage in the trip, the two men realised that they mistakenly left behind a bag with cash in it. They made arrangements to turn around and meet Mr Cerantonio near Ballarat to collect the bag, which they did.
During the trip, Mr Dacre and Murat Kaya talked about numerous things, including the Philippines, the size of the boat, ASIO, “legitimate phones”, codes they might use, and things they might say if the finger of suspicion were to be pointed at them. They listened to recorded speeches by Mr Cerantonio in which he advocated the use of violence by Muslims to establish an Islamic State under Sharia law. They sang songs, including the Men at Work’s “Down Under”, which they joked they might be singing when in the Philippines. (I should say that the codes the two men discussed struck me as so complex and confusing that, while Alan Turing might have had some chance of deciphering them unaided, no other member of the group would have had the slightest idea what they meant without — or perhaps even with — some sort of detailed key.)
On 21 February 2016, Mr Dacre and Murat Kaya arrived in Darwin. Over the next two days, they inspected the MV Rushcutter. As it turned out, two of the people to whom they spoke when inspecting the boat — “Felix” and “Billy” — were undercover police. They told them that they intended to use the boat as a “party boat” in Bali (which struck me as a story that few would believe). They asked various questions about fuel capacity, travelling distances and other things about the boat’s features. Ultimately, they decided that the boat had a host of problems that made it unsuitable for their purposes. They wondered aloud whether that outcome might be a sign from God.
In the result, the pair headed back to Melbourne disappointed, again listening to Mr Cerantonio’s recorded lectures on the way and discussing, amongst other things, hijrah and what they could say if pulled over by police.
Upon their return to Melbourne on 25 February 2016, the two travellers met Messrs Cerantonio, Thorne and Granata. Mr Thorne then led the group in solemn prayer.
Later, members of the group found in the hire car something they believed to be a listening device. They were wrong. As it happens, there was a listening device elsewhere in the car, but they did not manage to find it.
Undeterred by their failed plan to depart Australia from Darwin, over the next two or three months, the six men continued to discuss with each other matters concerning the Philippines. They continued to prepare for at least five of them to travel to that country.
On 12 March 2016, Messrs Cerantonio, Granata and Kadir Kaya discussed people they knew who had died in Syria, and the giving of Dawah (the call to Islam). Mr Granata asked for clarification on the question whether, if he were invading a country like Australia and there were aboriginals there, it would be right to invite them to Islam first and then fight them. Mr Cerantonio said, “You don’t have to, but you can.” Mr Granata seemed to come out of the conversation believing that, if they were polytheists, it would not be a sin to fight them.
On 28 March 2016, Mr Cerantonio posted a message on Facebook in response to a previous post commencing with the words: “To reject irhab (i.e. terrorism) is to reject Islam”.
On 29 April 2016, the group (except Mr Thorne) were together while Mr Cerantonio delivered a sermon, which included the following passage:
It will come to the believers. It continues to come to the believers. It will come to those who live in fear. And if you don’t find a victory on this earth in the form of conquest, then, no doubt, if you remain firm and you fight in the path of Allah and you achieve shahada (martyrdom), then you will have the greatest victory that there is: the victory that cannot be compared to any victory of this world; a kingdom far greater than the kingdom of this earth, promised to every believer.
On 3 May 2016, Mr Dacre found online an advertisement by Keith Hooley for the sale of a seven-metre Haines Hunter boat in Bendigo.
On 5 May 2016, Mr Cerantonio and Murat Kaya travelled to Bendigo and paid Mr Hooley a $2,000 deposit for the boat.
Later that day, having seen a Hyundai SUV for sale on the internet, Mr Granata and three or four other men attended an address in Glenroy to inspect the car. Following a test drive, Mr Granata bought the car, paying between $3,400 and $3,600 in cash. He also signed the transfer forms.
On 6 May 2016, Mr Cerantonio telephoned Joanne Montayre (his partner in the Philippines) and said that “some sisters” would be coming to Cebu. The Crown says “sisters” was a reference to the wives or partners of the co-accused. Ms Montayre asked whether it would be in a fortnight. Mr Cerantonio said, “Something like that”; and added that he would get them to message her.
Later that day, the Hyundai containing five occupants and another vehicle containing two occupants left Melbourne and travelled in convoy to Bendigo. The Hyundai stopped at Mr Hooley’s address whereas the other vehicle held back and parked down the street. Mr Dacre and another man spoke to Mr Hooley. Mr Dacre signed the transfer papers for the boat and it was transferred into his name.
The trailer carrying the boat was then hitched to the Hyundai and driven away, back to the other vehicle. Items from the other vehicle were transferred to the boat by Messrs Granata and Cerantonio. The two vehicles then separated.
The packing exercise, however, cannot have been performed too expertly, because a couple of life jackets were found on the side of the road in the town. Presumably, they had fallen out of the boat, unnoticed, as the group drove away.
Over the next few days, police kept tabs on the Hyundai and boat as the group (sans Murat Kaya) headed all the way to Cape York.
The evidence suggests that the group must have stuck out like a sore thumb, not just to investigators in the know. For, when police arrived at a petrol station in the north, some wag behind the counter suggested that the blokes they might be looking for had already come through. To my way of thinking, this is just one of the many indicators of the utter ineptitude of the group and the silliness of their plan.
On 10 May 2016, at 10:47 a.m., police intercepted the car and boat on the side of the Cape York Peninsula Development Road at the Laura River Bridge, near Laura, which is about 200 kilometres north of Cairns. Messrs Cerantonio, Dacre, Granata, Thorne and Kadir Kaya were present. None of the men had taken with them the mobile telephones they had been using prior to their departure from Melbourne. Each man was arrested and transported to the Cairns watch house and ultimately back to Melbourne.
In the meantime, the Hyundai, the boat and the men’s Melbourne residences were searched. In the car and boat, police found numerous items of interest, including ‘mind maps’ showing planning for the journey, fuel bladders, petrol cans, ten backpacks, a portable toilet, hiking boots, camouflage clothing, a portable solar power charging system, hunting knives, sleeping bags and mats, first aid kits, navigational maps, travel guides, language books, foreign currency, a ‘Navionics’ navigational card showing the Indian Ocean and South China Sea, and a notebook.
The notebook contained various handwritten notes and hand-drawn diagrams, including maps of the far northern tip of Queensland and Papua New Guinea; indentations of the codes discussed by Mr Dacre and Murat Kaya on their way to Darwin on what appeared to be blank pages; indentations of islands in the Southern Philippines; and a series of code words, namely “Green — Go”, “Red — Abort”, “White — All good” and “Black — Arrested”.
The searches revealed no fishing rods or other fishing equipment.
On 27 May 2016, Murat Kaya was arrested in Melbourne. His residence was also searched. There was no sign that he was then intending to leave home. Indeed, there was evidence to suggest that he intended to continue to live and work in this country.
All six men were charged and have remained in custody ever since.
Nature and gravity of offence
I turn now to the nature and gravity of the offence, and its rationale.
Rationale for criminalising the accused’s behaviour
Turning to the latter point first, it is perhaps reasonable that some might wonder why the Australian Federal Police (“the AFP”) bothered to intercept the accused before they headed off on what, on any view, was to be a voyage that rivalled that of the SS Minnow for its chances of failure. It is obvious that the accused did not like or want to be in Australia. Mr Granata and Kadir Kaya declared as much to the world when they vented their spleens on Mr Mitchell’s radio show. Similar views appeared to be held by others in the group. So, apart from doing the decent thing, as the AFP did, by saving them from the fate that their own breathtaking stupidity was nigh on certain to cause, why otherwise expend vast public resources on following, arresting, charging, prosecuting and sentencing them? Why not just let them go?
I think the principled answer is found, at least in part, in the judgment of Lasry J in R v Mohamed. In his reasons for sentence, his Honour opined that the “clear purpose” of the previous foreign incursion provisions was:
to ensure that Australia discharged its international obligation to make criminal the activities of [anyone] who proposed to engage in hostile activities in a foreign state and/or assist foreign fighters to do so. ... Like contemporary terrorism offences, the [relevant legislation] made criminal not only the specific act of engaging in hostile activities in a foreign state but, separately, acts which are performed in preparation with that intention. …
The same reasoning applies to the new suite of similarly-worded provisions in Part 5.5 of the Code, including s 119.4, which is the preparatory offence provision under which these accused have been prosecuted. Pursuant to Australia’s international obligations, the Commonwealth Parliament has criminalised behaviour of the type engaged in here to protect the people and institutions of other countries from citizens of this country who might be minded to head overseas and engage in hostile conduct.
A simple way to illustrate the rationale for the provisions and the importance of the approach of the Australian authorities in this case is this. If a local group in the Philippines had engaged in acts preparatory to entering this country with the intention of encouraging others here to attempt to overthrow the government of a State or the Commonwealth by force or violence, I expect that right-thinking Australians would want the Philippines authorities to attempt to prevent and punish that behaviour by charging and prosecuting those responsible. That is precisely what the AFP and Commonwealth Director of Public Prosecutions (“the Director”) have done in this case.
Maximum penalty
One indicator of the potential gravity of an offence is its maximum penalty. In this case, the legislature has set the highest maximum penalty available — namely, imprisonment for life.
Previously, offences involving foreign incursions, or behaviour preparatory to foreign incursions, carried maximum penalties of 20 and 10 years’ imprisonment respectively. As was explained in the Revised Explanatory Memorandum to the Bill that introduced the new foreign incursion provisions into the Code, the maximum penalties for those new offences were increased to life imprisonment so as to “align with” the terrorist act and preparatory terrorism offences in ss 101.1 and 101.6 of the Code.
As well as the purpose mentioned by Lasry J, an additional rationale for criminalising such behaviour, and for the increased maximum penalties, is also mentioned in the Revised Explanatory Memorandum. In particular, the following was said:
The increased penalties for foreign incursion and recruitment offences are proportionate and reflect the gravity of these offences. Australians engaged in foreign conflicts act to destabilise foreign governments and may be involved in the perpetration of violence, which at its most serious could involve unlawful death or an intention to cause unlawful death. Moreover, those returning from foreign conflicts to Australia may have enhanced capabilities which may be employed to facilitate terrorist or other acts in Australia. To this extent, the penalty provisions reflect the seriousness of the offences and the threat posed to the national security of Australia and people in Australia.
The offence committed by Mr Cerantonio
I turn now to the gravity of the particular offence committed by Mr Cerantonio. In my view, this instance of the offence was very serious, for several reasons.
First, the offence involved several substantial and sustained acts preparatory to the departure from Australia. This was not spontaneous offending. On the contrary, it was premeditated behaviour engaged in over a prolonged period. After the Darwin failure, a second plan was hatched. Obviously, there were numerous opportunities to reconsider and desist. But Mr Cerantonio carried on regardless, even when Murat Kaya had the good sense to abandon the plan.
Secondly, the ultimate intention held by Mr Cerantonio — that he would be involved in encouraging others in the Philippines to attempt to overthrow the government of the Southern Philippines by force or violence — involved moral culpability of a high order.
Thirdly, the offence was motivated by adherence to extremist — and, in my view, completely misguided and dangerous — religious thinking. It is a belief system that is very difficult for the criminal justice system to combat, because, among other things, it is often held with unyielding fervour and causes otherwise decent and intelligent persons to behave in such extreme and irrational ways.
Fourthly, Mr Cerantonio held the necessary criminal intention for a considerable period — from at least late-November 2015 until his arrest on 10 May 2016.
Fifthly, he held this specific intent against a background of extremist Islamist thinking that permeated his thoughts and actions during his time in the Philippines, which thinking and behaviour seemed only to intensify after he was deported to Australia in July 2014.
Sixthly, unlike his co-accused, Mr Cerantonio was the only one of the group who was to be involved in actually encouraging others to attempt to overthrow the government by force or violence.
Seventhly, as the leader of the group, as the person to whom the co-accused turned for leadership and religious and spiritual guidance, and as the one who inspired them to join the agreement, Mr Cerantonio bears a much greater moral culpability than his co-accused. While those co-accused were all grown men with their own pre-existing extremist ideas held with varying degrees of conviction, Mr Cerantonio appears to have done all he could to confirm or even enhance those views and, in some cases, to persuade those who might have been vulnerable, and who seemed to be questioning the wisdom or righteousness of the plan, to his perverse way of thinking. In my view, those who hold themselves out as leaders of groups such as this one and as preachers of such putrid ideas, and who, in doing so, corruptly influence — or attempt to influence — the thoughts and behaviour of others, deserve, all else being equal, substantially greater punishment than the subordinates who follow those leaders like lobotomised sheep. Mr Cerantonio is a man of obvious intelligence and ability. In my view, his moral culpability is all the greater because he attempted to use his considerable gifts for evil, not good.
Finally, while Mr Cerantonio may have intended to stay in the Philippines, there is a risk that, if (against all odds) he made it to that country and carried out his intention by encouraging others to be involved in hostile activity, he still might return to Australia and do so with “enhanced capabilities which may be employed to facilitate terrorist or other acts” in this country. This concern, of course, ties in with one of the reasons given by the legislature for criminalising this behaviour and imposing such a high maximum penalty. That said, I think this factor is only a minor consideration in this particular case, given the unlikelihood that Mr Cerantonio would have made it to the Philippines in the first place.
The latter point brings me to the Crown’s concession that there are other features of Mr Cerantonio’s offence that limit its gravity.
First, as I have just intimated, the whole venture was poorly planned and, I fear, foredoomed to failure. Given the ill-suited vessel the group had purchased and their lack of serious boating experience, it is hard to imagine that they would have made it very far past the breakers off the far north of Queensland. The Crown were quick to point out that the group had no fishing rods. This, it was said, showed that there was no innocent explanation for their voyage. So much may be accepted. Equally, however, without fishing rods or any meaningful food supplies, it is hard to see how the group could have survived on the high seas for very long. In fact, if perchance they got out to sea and did not drown or become victims of piracy, it seems inevitable that they would have become very hungry very quickly. At that point, if they had any idea how to do so, I reckon they would have turned the boat around and headed home.
Secondly, there was no formed plan by Mr Cerantonio as to how the encouragement of others in the Philippines was to occur. In fact, the means by which he was to encourage others, and who those others might be, were unknown. Further, there is no evidence of any starting point or timeline for the commencement of the encouragement of others to overthrow the government. Thus, the ultimate aim of the plan was extremely remote.
Thirdly, as serious as that ultimate aim was — which, in addition to the overthrow of a government, must have included the contemplation of the possibility of serious harm, or perhaps even death, being caused to another or others — nevertheless, there are substantially more culpable instances of “hostile activity” falling within s 119.4(1) than that alleged, such as having a clear intention to murder numerous others, including the head of state or any other holders of public office.
Fourthly, and this is related to the foregoing point, it is not suggested that Mr Cerantonio (or any of the co-accused, for that matter) was to be involved personally in engaging in any violence.
Balancing all matters, I still regard Mr Cerantonio’s offence as very serious. And while it is a long way from being in the worst category of offences of this type, his particular offence is substantially more serious than the offences committed by his co-accused.
The offence committed by Messrs Dacre, Granata, Thorne and the Kaya brothers
I turn now to the gravity of those offences.
The first thing to note is that, while, by virtue of their more subordinate roles, the offending of those five co-accused was less serious than that of Mr Cerantonio, the offence committed by each of them was still serious, involving, as it did, substantial and sustained acts preparatory to the departure from Australia. They too had ample opportunity to reconsider and desist. Only Murat Kaya had the good sense to think better of things and pull out, albeit only after he had already contributed significantly to the group’s offending.
Secondly, as I have said, the ultimate intention accompanying each of these offences was that Mr Cerantonio would be involved in encouraging others in the Philippines to attempt to overthrow the government of the Southern Philippines by force or violence. There is a high moral culpability in intending such behaviour, even if it is to be committed by another.
Thirdly, the offence was motivated by adherence to the same or similar extremist — and quite dangerous — thinking as that which motivated Mr Cerantonio.
Fourthly, while the duration of their involvement in the agreement varied, and in some cases was of a much shorter duration than the involvement of Mr Cerantonio, and in no case was preceded by the same long history of commitment to radical ideas directed at the Philippines, each of the other five accused nevertheless appeared to be committed to the agreement and engaged in actions that formed or otherwise contributed to a significant part of the preparatory behaviour the subject of the offence charged.
On the other hand, as the Crown conceded, in each case, this particular example of the offence committed by these five accused is towards the lower end of the spectrum of gravity for such an offence. There were several factors pointing in that direction.
First, the Crown accepted that these accused would not have been involved in this particular offence but for the charismatic and persuasive Mr Cerantonio.
Secondly, the same points about poor planning, the likelihood of failure and the extreme remoteness of the ultimate aim were equally applicable to the offence committed by each of these five accused.
Thirdly, the Crown also accepted that, even if, against all odds, they made it to the Philippines, the plan was not that any five of these accused would be involved in encouraging others in that country to participate in an attempted overthrow of the government by force or violence. Instead, their intention was that Mr Cerantonio would be the one engaging in such behaviour. Less, still, there was no suggestion that any of these accused was to be involved in any violent behaviour.
Fourthly, as in the case of Mr Cerantonio’s offence, so too here the means by which he was to do so, and with whom, were all unknown by these accused.
Fifthly, there were other aspects of the offending in the cases of the co-accused that placed them in a less culpable position than Mr Cerantonio. For example, Mr Dacre’s acts of preparation commenced at a relatively late stage, on 19 February 2016, with the trip to Darwin, and continued until his arrest on 10 May 2016.
In the case of Murat Kaya, the Crown accepted that his offence was less serious than that of Messrs Dacre, Granata, Kadir Kaya and Thorne. This is because Murat Kaya decided not to go on the trip to Queensland or to join the others later in the Philippines. The Crown also accepted that this difference should be reflected in a moderately lesser sentence to be imposed upon Murat Kaya than the sentences to be imposed on Messrs Dacre, Granata and Kadir Kaya. As the sentences I have already imposed might suggest, I accepted that submission.
The Crown also accepted the following things about the case concerning Mr Thorne in particular. First, the evidence did not establish beyond reasonable doubt that Mr Thorne personally intended to enter the Philippines. Second, Mr Thorne’s role in the preparatory conduct was no higher than that of Messrs Granata and Kadir Kaya. Thirdly, and consistently with the point I made a moment ago, the Crown accepted that Mr Thorne was not the motivating force behind the offending conduct or agreement, but, rather, that Mr Cerantonio was.
I should point out as well that I understood counsel for Mr Thorne to accept that their client’s level of offending was to be equated with that of Messrs Dacre, Granata and Kadir Kaya. In any event, I considered Mr Thorne’s offending to be at the same level of gravity as those three co-accused.
Balancing all matters, while there were still serious elements in their behaviour, for the foregoing reasons, I accepted the Crown’s concession that the offences committed by the accused other than Mr Cerantonio were towards the lower end of the spectrum of gravity for such an offence.
Personal circumstances
Before turning to the specific factors which, if accepted, must be taken into account in mitigation of the sentences to be imposed, I shall set out some of the personal circumstances of each accused.
Paul Dacre
Paul Dacre was aged 30 at the time of the offending and was 33 at sentence.
He was born in Perth, and has one younger brother who is aged 31. His parents separated when Mr Dacre was aged six. Thereafter, he lived with his mother and his stepfather when his mother re-married, but had semi-regular contact with his father.
Mr Dacre attended local schools, and then Eastern Hill High School until the end of Year 11 in 2001. The next year, his mother moved him to a business college in the city. Life at home and school had become very lonely for Mr Dacre, in part because of the long hours his parents worked. Schooling began to be difficult too. While at college, he lived with his father.
Mr Dacre spent a year at the college, obtaining a Certificate 4. He worked at KFC. He also became involved in the ‘hip hop’ music scene in Perth, and adopted its culture, including drug use. He moved into a house where drugs were prevalent. The next few years were essentially chaotic, a life where drug use dominated all other matters.
In 2005, Mr Dacre met and commenced a relationship with his first wife, and they moved in together. With ups and downs, the relationship lasted three years. At the time, Mr Dacre held a carpentry/cabinet-making job for approximately 18 months. In 2007, his first wife gave birth to Mr Dacre’s first child. Both Mr Dacre and his partner were at that time drug users, and the relationship was unstable.
This period — i.e. his late-teens to early-20s — also saw him involved in minor offending. That history included offences of unlawful damage, drink-driving, unlicensed driving, failing to give police personal details, obstructing public officers and breaching a bail undertaking, for which he was fined.
When his daughter was about four months old, during 2007, Mr Dacre went back to live with his father. It was at this point in his life that a friend introduced him to the Koran and other books about Islam. He also met a number of other Muslims in Perth. He made new friends, admiring their lifestyles and morals, and ultimately quit drugs, alcohol and nightclubbing. He found the Muslims he met, who were mostly students, to be kind and good people, with a good moral code. He was delighted to have friends of this kind.
In early-2008, his wife, unannounced and struggling, deposited their daughter at Mr Dacre’s workplace. Thereafter, Mr Dacre looked after his daughter at his father’s home for about four months, until his wife attended out of the blue at his home and demanded that the child be returned to her.
After a spiritual journey of some 12 months, in mid-2008, Mr Dacre formally converted to Islam. During this period of conversion, he met his second and current wife Sandy online through Myspace, a precursor of Facebook. Sandy lived in France. She had been studying English as her tertiary degree. They chatted online for approximately a year, and then Mr Dacre travelled to France in late-2008 where he met Sandy in person, and proposed almost immediately.
They were married approximately 40 days later in France. After three months living there with Sandy’s family, they flew back to Perth to live with Mr Dacre’s father. They stayed in Perth until 2015, having three children there.
Late in 2008, shortly after arriving back in Australia, the couple discovered that Sandy was pregnant with their first child. About a month later, Mr Dacre started employment with an IT service provision company called “Empired”. Once he received his first pay cheque, the couple moved to their own rental home in Mandurah, an hour out of Perth. Mr Dacre then worked with the same company for six years.
Their first child was born nine weeks premature in July 2009. About 11 months later, in June 2010, their second child was born. The young family then moved to Rockingham.
At around this time, Mr Dacre received contact from the Department of Child Protection. His first wife had been arrested, and arrangements were made for Sandy and him to take custody of the child of that relationship. They did so, and cared for her together for approximately three years. This was very challenging, as his daughter had multiple behavioural and developmental issues.
In late-2013 or early-2014, Mr Dacre began associating with Muslims in Perth who held a conservative, strict view of Islam based on very literal readings of religious texts. Prior to that, his Islam involved a typical life of regular prayer and mosque on Fridays, when work permitted. When meeting stricter Muslims, he became impressed with the extent of their knowledge about Islam, and started to do his own studies.
Mr Dacre soon became more actively involved in the Muslim community, and more engaged with political issues that were topical within that community. However, these associations and this kind of discussion were to have a long-term detrimental effect, leading to this offending. A negative attitude to government, and conspiracy theories, were typical of some of the people in this group, and those they came to know from other states.
In April 2014, Mr Dacre’s youngest child was born.
Meanwhile, Mr Dacre’s performance at work was positive. Between January 2009 and March 2015, he remained at “Empired”, graduating through various IT support roles at the company. By the end of his time with them, he was earning a good wage.
However, in late-2014, there were some publicised newspaper articles concerning Muslims viewed as extremists in Perth. This led to difficulties with some of his colleagues, and with extended family. Mr Dacre and his wife began discussing starting afresh in France, with Sandy’s family. This would involve returning his first child to her mother, who by then was back enjoying structure and regular visits.
They sold all their belongings and booked tickets to leave for France. Mr Dacre left his job. Days prior to their departure, with a visit from the AFP or DFAT, Mr Dacre’s passport was cancelled. It was decided that Sandy and the children would still travel to France and visit her mother, and he would stay behind to make new living and housing arrangements.
It was in this context that Mr Dacre moved to Melbourne in March 2015. Through the Muslim community, he had some contacts in Melbourne who encouraged him to move there, where the Muslim community was larger and could support him.
Immediately after arriving in Melbourne, he sought and obtained another position at an IT support organisation in Melbourne called “Thomas Duryea”, for six months. He was able to apply for a rental property in Epping and arrange new furniture and household items. Sandy and their children joined them in Melbourne about three months later, in mid-2015. Mr Dacre then moved to a different IT job where he remained until May 2016.
He met most of his co-accused through a barbeque at Murat Kaya’s house, and he was invited to play on an indoor soccer team with them and other young Muslim men. It was in this context that he much later came to be part of the plan to leave Australia for the Philippines by boat.
During this same period of 2015, as he was working and living in Epping, his income had dropped very substantially. The trip to work was long, finances were poor, but he and his wife wanted their children to go to an Islamic school, and a sense of failure and depression set in. He began to accommodate this by playing computer games endlessly. And, so, becoming more involved with the co-offenders as a friendship group began to seem more appealing. From here grew the discussions to commit the offence to which he pleaded guilty.
The criminal intent to which Mr Dacre pleaded guilty was not the sole intent in leaving Australia for the Philippines. He was also motivated by a desire to leave Australia and live among Muslims in the Southern Philippines. Discussions about starting life afresh with Sandy and the children in an Islamic environment were appealing. This looked like the ticket out of the problems with life he was experiencing. Hijrah would lead to living in an actual Islamic environment. The appeal was to live in an Islamic community.
Antonino Granata
Antonino Granata was 25 at the time of the offending and was 28 at sentence.
He was born in Melbourne and raised in complex circumstances. His father, who (at the time of the plea) was in prison for serious unrelated offences, suffered poor mental health and was very violent to all in the family. So bad was the violence that Mr Granata’s mother and siblings were forced to live in a refuge.
Earlier in his life, Mr Granata was involved in heavy illicit drug and alcohol use, although he has no criminal history.
Mr Granata’s father was Catholic and his mother a Seventh-Day Adventist. Mr Granata did not actively practice either faith and was drawn to Islam in an effort to cope with his family conflict and his own alcohol and illicit drug use.
He ceased using drugs and alcohol after taking up Islam.
He was married in 2013 and has a four-year-old daughter.
Counsel for Mr Granata were instructed that their client had abandoned his desire to leave Australia and that he would willingly participate in any programmes deemed appropriate to reduce the risk of re-offending.
Kadir Kaya
Kadir Kaya was aged only 21 at the time of the offending and is now 24.
His parents, who migrated here from Turkey, are only in their 50s. His father worked as a fitter and turner at Ford for many years and then became involved in a tiling business. His mother has worked as a process worker, in sewing and also in a kebab shop.
He has three sisters, one of whom lives in Turkey with her husband and children. The other two live here: one has a husband and children; the other is still at school. His brother — who is older — is Murat Kaya.
Kadir Kaya was a good student at school, which he enjoyed. After completing VCE, he joined his father working in the tiling business. When the business slowed, he had a period of unemployment.
He was married in 2013. The marriage was a happy one until he went into custody. During this period, his wife was admitted to hospital with mental health problems. The couple separated in late-2016 and were divorced in late-2018.
Kadir Kaya has no criminal history.
The prison management file revealed that Mr Kaya was consistently documented as studious, healthy and respectful of others. He set himself, and reached, goals in health, fitness, literacy and education. He worked hard in prison industries and as a haircut billet. He encouraged others to work hard and kept his unit and workspace neat. He engaged with Islamic teachers in prison when able to do so and took up educational opportunities at all times.
Murat Kaya
Murat Kaya was aged 25 at the time of the offending and is now 28.
He, of course, shares the same family history as his brother.
After completing VCE, he commenced, but did not complete, an electrical apprenticeship. Instead, he too went into the tiling business with his family.
He was married in 2013 and has a daughter aged five. His wife studied psychology but those studies have been put on hold while her husband has been incarcerated. Instead, she has done a personal training course in the meantime and now works at a gymnasium.
Murat Kaya has no prior criminal history. He does, however, have a subsequent appearance for possession of controlled weapon found at his premises at the time of his arrest on the current charge. The offence cannot have been very serious, though, for he was placed on an adjourned undertaking without conviction.
Murat Kaya played soccer as a youth and coached junior soccer as a young adult. He hopes to return to that activity when he is released.
His time in custody has had a heavy impact on his wife.
His brother-in-law said, in his reference, that he would be prepared to give Murat Kaya a full-time job in his heating and cooling business upon his release from prison.
Shayden Thorne
Mr Thorne was aged 28 at the time of the offence and turned 31 in February.
His mother was born in Singapore and grew up in Malaysia. She came to Australia with her mother and siblings as a child. She has been a practising Muslim all her life and recently attained a degree in social work. Her mother — i.e. Mr Thorne’s grandmother — lives in Perth and is frail and elderly. Mr Thorne hopes to see her before she dies.
Mr Thorne’s father is an Aboriginal man living in Perth who separated from the family about a year after Mr Thorne was born. He was a heavy drinker and was violent when drunk. Mr Thorne did not see him after the separation until an occasion at court over a custody dispute. There, he also met his stepsister (who is now about 22) and the extended family on his father’s side.
Soon after his father left the family, Mr Thorne’s mother re-partnered with an Australian man of Moroccan background. They had six children between 1991 and 2010. The two eldest daughters are married and live in Perth. The next eldest, a son, lives and works in Morocco. The third daughter died unexpectedly as a result of a gas leak while holidaying with her father’s family in Morocco. This is a source of great sadness for Mr Thorne and his family. The two youngest children, aged nine and ten, are at school in Perth and live with their mother.
In 1997, when Mr Thorne was aged nine, his family moved to Saudi Arabia. His stepfather secured work in IT at a desalination plant. Mr Thorne’s mother sought, and won, custody of Mr Thorne and his younger brother Junaid in order to enable the new family to move overseas.
Mr Thorne’s stepfather was extremely violent to Mr Thorne and Junaid. His mother describes it as sadistic behaviour, involving the use of weapons, including hammers, screwdrivers and wire. At the time, she stayed with her partner for the sake of the children, but, in about 2011, she fled, taking most of the other children home to Australia. One son remained with his father to complete his schooling.
Mr Thorne was schooled in Perth and Saudi Arabia in mainstream schools, where he finished Year 12. He is fluent in Arabic and learned the Koran, which he was taught as a subject at school. From about the age of 10, he also attended the mosque outside school hours. A local sheikh sponsored him to attend university, where he completed three years of a four-year degree in finance (in English).
At the age of 19, Mr Thorne was forced to leave home. Initially, he lived on the streets. His brother took him food and he went home to shower and sleep when his stepfather was at work. He tried to continue his studies. But his stepfather ultimately banned him from the house completely and prohibited the family from assisting him. This made it impossible for Mr Thorne to complete his studies, so he abandoned them.
Those in charge at the mosque permitted Mr Thorne to stay there in a spare room in return for leading prayers. Prayers are sung. Mr Thorne has a good voice and a large repertoire of prayers. His ability to lead prayers is still a source of pride for him.
During this period, Mr Thorne was unable to see his mother at all. He received support, including financial support, from his sponsoring sheikh. Unfortunately, however, the sheikh also exposed him to radical Islamist politics.
The Saudi Arabian government was known to be authoritarian and believed to be corrupt — not just from the perspective of a radical Muslim. There was a broad social movement of people who criticised the government. It was in this context that Mr Thorne was encouraged to hold, and to some extent did hold, radical ideas.
While he has no criminal convictions, in 2011, at the age of 23, Mr Thorne was arrested in Saudi Arabia, along with many others. He was tortured over a six-week interrogation period. He was shackled, blindfolded and beaten, and permitted to communicate only with his interrogator. At the conclusion of his torture, he was permitted a single visit from his mother before she returned to Australia in 2012. He also had a visit from his stepfather and his brother, which was the last time he saw them.
In early-2014, without warning, Mr Thorne was deported to Australia. This, it seems, resulted from a pardon which was facilitated by the Saudi Government.
Nothing of this experience, submitted his counsel, could or should be relied on to say anything certain about Mr Thorne’s character or previous conduct. I shall return to this issue later.
On his return to Australia, Mr Thorne recovered with his family in Perth. He worked in his brother-in-law’s painting business.
Mr Thorne sought out his paternal stepsister and stepbrother. He met them and the extended family, who welcomed him. They were aware of what happened to him overseas and of the current charge. One of Mr Thorne’s goals when released was to further the relationship with his father’s side of his family.
In late-2014, Mr Thorne had come to Melbourne, where he met his future wife Assia, through her brother. They married in December 2014. Throughout their relationship, including the charge period, he continued to travel to Perth to spend time with his mother and family, and to work.
Mr Thorne and Assia had a son, born in January 2016, who is now three years old. He was delighted to become a father. In March 2016, he took his family to Perth to meet his extended family. He had hoped to raise his son in a Muslim society and under Sharia law.
Sadly, for Mr Thorne, the couple divorced whilst he was on remand. His son still lives with his mother, but Mr Thorne’s extended family bring the child to visit him in the prison fortnightly, which they both relish.
Throughout his remand, Mr Thorne has been held in a maximum-security protection unit at the reception prison. He is bored and frustrated but philosophical about his predicament.
He has sought appropriate counselling to address the consequences of his abuse as a child and to plan constructively for his future.
He continues to be a devout Muslim and relies on prayer to help his peace of mind.
Robert Cerantonio
Mr Cerantonio was aged 31 at the time of the offending and is now 34.
He grew up in Footscray and was raised a Catholic.
His father was born in Italy and migrated to Australia when he was five. His mother was born in Australia. Both are nominally Catholic, although not at all devout.
His father has worked as a bricklayer his whole life and is a former President of the West Footscray Football Club in the WRFL. His mother has worked in hospitality and as a cleaner.
Mr Cerantonio is the second of four brothers in his family.
His parents worked hard to support him and to provide a supportive environment for him and his brothers.
Mr Cerantonio converted to Islam when he was aged about 17. He had become disillusioned with his Catholic faith, particularly after seeing depictions of God in the Sistine Chapel, which he felt were contrary to biblical teachings. He looked at a range of religious teachings but was convinced by the teachings of Islam and converted in consequence.
In 2006, he saved enough money to take part in the Hajj (a pilgrimage), which is an obligation for every able-bodied Muslim at least once in a lifetime. He travelled with a group of about 150 persons from Melbourne and spent two weeks in Saudi Arabia performing the pilgrimage. Afterwards, he visited his parents-in-law, who had moved back to Lebanon, and spent a few weeks with them and their younger children in Tripoli.
From his earliest time as a Muslim, Mr Cerantonio had been asked to teach and lead prayers. He attributes this to his acumen in public speaking and capacity to speak in multiple languages. His curiosity led him to read widely in Islamic teachings. He quickly developed a broad knowledge of his religion, which has meant that others have often turned to him for opinion on matters of religion. However, notwithstanding others designating him to be a sheik, he has not sought to play any leadership roles within the Islamic community.
Mr Cerantonio is an adherent of the Sunni form of Islam. He favours a literal interpretation of the Koran and other sacred writings. However, his understanding of particular topics continues to develop. For example, he once considered music to be forbidden, but now has come to the view that it is permissible. Indeed, he has broad tastes in music. Similarly, while he once believed that the obligation of hijra was absolute, he no longer believes this to be so.
Mr Cerantonio continues to pray and read the Koran while in prison. However, he has rarely had the opportunity to speak about his faith with others and he has not continued any preaching or teaching roles while on remand.
Mr Cerantonio attended a local Catholic primary school in Footscray. He excelled at school and was always “top of the class”. He was an active participant in sport, particularly Australian rules football.
He attended Footscray City Secondary School for his secondary schooling. He experienced no significant disciplinary problems during school. However, his academic performance deteriorated during his secondary years and he was disappointed with the results he obtained in Year 12, which he completed in 2002.
Thereafter, Mr Cerantonio commenced an arts degree at Victoria University, majoring in history and media. He did not complete his degree and ceased his studies shortly before graduating, with his interest in religion overtaking his educational aspirations.
For most of this time at university, Mr Cerantonio was president of the Islamic Society of Victoria University and also a member of the Muslim Students’ Association, an umbrella organisation which represented Muslim students at all of the major universities in Melbourne.
Mr Cerantonio has been married three times. His first marriage was to Omaya El-Houli, a Lebanese-Australian woman. They married in 2004, when he was only 19. The marriage ended after about three years, before the birth of his second child. There are two children of that marriage, who are now age 12 and 10. At around this time, he deferred his studies at Victoria University and began working at Transurban/Citylink.
While visiting the Philippines as part of a holiday in 2007, Mr Cerantonio spent a few months in Zamboanga and met a woman named Fatima Mona Jajurie. They married in the Philippines and Mr Cerantonio returned to Australia alone to apply for a spouse visa, which took six months to be approved. His wife then came to Melbourne and lived with Mr Cerantonio. The couple separated in late-2010 and his wife returned to the Philippines.
Mr Cerantonio met his third wife Joanne Montayre on his trip to the Philippines in 2013. They became close and travelled and lived together up until his deportation back to Australia in 2014. His intention upon being returned to Australia was either to bring Ms Montayre out to Australia or find his way back to the Philippines to be with her there. Ms Montayre was unable to obtain a visa to travel to Australia.
As a result of his heavy involvement with clubs and societies, Mr Cerantonio received an invitation from Victoria University to represent them at a government-sponsored event in Canberra called the “National Student Leadership Forum”. As part of the forum, he was placed with two mentors — Mike Baird and Peter Garret — and spent time learning and discussing Australian politics. He maintained contact with Mike Baird and other group members for about a year afterwards.
By the time he was aged around 20, Mr Cerantonio had gained a good deal of knowledge about Islam and began occasionally giving talks at the Islamic Information and Services Network of Australasia (“IISNA”). He found that his talks were very well received and he received positive feedback.
In 2007, Mr Cerantonio received an invitation from an Indian group called the “Islamic Research Foundation” (“IRF”) to a “Peace Conference” to be held in Mumbai later that year. It was the largest Islamic conference of its kind in the world. Mr Cerantonio attended and met many famous preachers. He participated in filmed sessions for Peace TV, which is owned by the IRF and is broadcast via satellite around the world. As a result of these filmed talks, he became somewhat of a public figure. He stood out amongst those on Islamic TV channels as being one of the few guests who spoke English fluently.
Around this time, Mr Cerantonio joined his brother and a mutual friend in the Philippines as part of a holiday on his way back from India. During this trip, Mr Cerantonio spent time with his brother in Manilla and also decided to visit the city of Zamboanga in Mindanao, where there is a large Muslim population. He had heard of this city after reading about it in a travel book by Michael Palin, and had wanted to visit the city ever since. It was on this trip that he met his second wife.
At this time, Mr Cerantonio was working for Citylink. He continued Islamic studies with teachers in Melbourne as well as teachers visiting from abroad. He also continued giving talks and in 2009 he was again invited to Mumbai to a second Peace Conference. His second wife went with him and, after the conference, they spent time visiting cities around India. He again filmed sessions for Peace TV and received good feedback.
In 2009, Mr Cerantonio was invited to Dubai for the “Dubai Peace Convention”, which was a conference hosted by the ruling family in Dubai and attended by senior Muslim figures such as Abdur-Rahman Al-Sudays, who is the Imam of the Grand Mosque in Makkah (and is perhaps the most well-known figure in the Muslim world). At this conference, Mr Cerantonio met with a number of senior Muslim figures and received an award from the Royal Family for his contributions to the Muslim community.
After the conference, Mr Cerantonio spent some time at an Islamic centre in Dubai called the “Abu Bakr Islamic Centre”, which was run by Filipino Muslims living in Dubai whom he had met at the conference. Two of those helping to run the centre were Abdul-Karim and Abid Misuari, the sons of Nur Misuari, the leader of the Moro National Liberation Front (“MNLF”). He was urged to keep in contact and told he would always be welcome in their land, which they considered to be independent from the Philippines.
In mid-2010, Mr Cerantonio travelled with the president of IISNA, Samir Mohtadi, to Kuwait, Qatar and the United Arab Emirates as part of a fundraising trip for a new Islamic centre being built in Melbourne, to be called the “Multicultural Youth Centre” (“MyCentre”). This trip did not yield the expected sponsorships, but Mr Cerantonio and Mr Mohtadi resolved to return the following year to chase up promises made by would-be benefactors. They ended up returning later the same year and were able to secure funding for MyCentre.
Shortly after this, Mr Cerantonio visited India to attend a conference organised by the Salafi Learning and Research Centre (“SLRC”). He was invited to speak about terrorism and expressed his opposition to suicide bombings and killing innocents, and stated his opposition to the “9/11 attacks”.
During 2010, Mr Cerantonio visited the Philippines with his second wife for her sister’s wedding, but did not engage in preaching or lecturing at that time.
In 2011, Mr Cerantonio was offered a job working in Egypt with an Islamic television channel called “IQRAA”, a religious channel which is broadcast worldwide. He took the offer and relocated to Cairo. Most of his work involved a live program called “Ask the Sheikh”, in which people would call in and ask questions, which Mr Cerantonio would answer. During this time, Mr Cerantonio became very well known in the English-speaking Islamic world and was invited to many Islamic conferences. He attended the second Peace Conference in the UAE in 2012 and also attended conferences in Germany and the Netherlands.
After finishing his contract with IQRAA, Mr Cerantonio went to Qatar and undertook some work with Qatar Foundation Radio, before going to Italy to meet family and friends, as well as to participate in some Islamic events and do some work with an Islamic media group. He stayed in Italy for four or five months, before returning to Egypt for a holiday.
Mr Cerantonio returned to Australia in 2013 and obtained work as an IT analyst and translator with Symantec. During this time, he visited Sydney and gave a number of talks, such as “Who are the Real Terrorists?”.
In 2013, Mr Cerantonio decided to travel to the Philippines. He arrived on 5 June 2013 and initially stayed with his brother at his apartment. He did not have a clear intention about how long he would stay in the Philippines or what he was going to do with his life at this time.
Almost as soon as he arrived in the Philippines, Mr Cerantonio was contacted by a local Muslim group called “Islam in Focus — Manila”, which was organising a pre-Ramadan lecture, and invited him as a guest speaker. He met with them and did some recordings advertising the lecture and their project to build a new mosque in Manila.
While in the Philippines, Mr Cerantonio participated in Islamic events in Manila and later travelled to Cebu and Zamboanga City. While in Cebu, he met his third wife, Ms Montayre, who was also a convert to Islam. They formed a relationship and decided to marry and relocate to Zamboanga City, a city in Mindanao.
While living in Zamboanga City, the house in which Mr Cerantonio lived with Ms Montayre was destroyed in fighting between the MNLF and the Philippines Government. Following that event, he and his wife moved to Cebu. At this time, their future plans were uncertain. They had discussed leaving the Philippines to live abroad in a Muslim country but decided to stay in the Philippines in the short term to see what options may arise. During this period, Mr Cerantonio spent most of his time in Cebu, although he did visit Manila to see his brother and to undertake some short-term work.
Mr Cerantonio instructs that much of his time during this period was spent with his wife, assisting her in trying to sort out legal issues arising from her grandfather’s will. Ms Montayre believed that she was entitled to a large inheritance. The couple had hoped that, once she gained her inheritance, they would be in a position to live comfortably, whether somewhere in Mindanao or abroad. Much time and effort was devoted to resolving these issues, but all to no avail.
In July 2014, Mr Cerantonio was arrested and deported back to Australia. Upon his return to Australia, members of the AFP met with Mr Cerantonio. He was advised that he had not broken any laws and he was free to resume life in Australia, although his passport had been cancelled.
Mr Cerantonio was unable to contact Ms Montayre for two weeks after his return to Australia. When he finally made contact with her, she informed him that she had been kidnapped by the Philippine Police and tortured. A few days later, she was struck by a car and suffered three broken ribs. She believed this to be an intentional act. Mr Cerantonio held fears for her safety and thought she may be killed. However, he was unable to travel to the Philippines, given that his passport had been cancelled. He arranged for his wife to go to Manila to live with his brother Martin. She spent a few months with him, but it became difficult in the long term, as her work and life were back in Cebu.
Mr Cerantonio then developed a strong desire to leave Australia, regardless of the fact that his passport had been cancelled. He did not believe that there were any laws preventing him from leaving the country without a passport, but he had no means to do so. While he considered leaving by boat to be a possible solution, he knew nothing about boats, had no capacity to operate a boat and had no desire to do so alone.
Over time, Mr Cerantonio met other friends in the Muslim community who also wanted to leave Australia, but had had their passports cancelled. The possibility of leaving was discussed. Initially, Mr Cerantonio, together with the Kaya brothers and Mr Granata, had decided that it might be possible to obtain a boat and leave Australia by sea, as Murat Kaya was able to operate a boat and was willing to do so.
The initial plan was to purchase the MV Rushcutter. At this time, there was an intention that others would also come with them, such as Mr Dacre, Mr Thorne and many family members. Mr Cerantonio’s wish was to be in the Philippines, with a view to reuniting with his wife and sorting out the inheritance.
When the purchase of the Darwin boat fell through, the group decided upon the Haines Hunter.
Murat Kaya ultimately withdrew from the agreement, as he did not believe the plan would be successful. Mr Dacre volunteered to be captain, as he knew how to operate a boat.
No renunciation of belief in violent jihad but positive signs of change
I turn now to the factors in mitigation.
Messrs Dacre, Granata, Murat and Kadir Kaya
First, while I am not satisfied, on the balance of probabilities, that any of the accused has formally renounced the extremist beliefs that must have motivated his offending — and indeed I would be unlikely to make such a finding without evidence from the accused on the point — I was satisfied that each of Messrs Dacre and Granata and the Kaya brothers had shown positive signs that he no longer held such views, or at least that he was moving towards such a position. In particular, all four accused had engaged in courses or practices in prison that suggested, since committing the offence, their views had been changing. All four had quite ordinary plans for the future — concerning work, family and community involvement. At least two had asked to be involved in deradicalisation programmes — although, sadly, it seemed that such programmes were not available before sentencing.
In the case of Murat Kaya, there was the added factor that it was conceded that he had decided not to go to the Philippines and that he intended to stay in Australia.
Mr Thorne
In the case of Mr Thorne, he too involved himself in courses in prison. He was voluntarily engaged with a prison psychologist to discuss matters such as his abuse as a child. He also regularly met the Muslin chaplain in prison, from whom he had requested mainstream Muslim educative materials. There was also evidence, from his brother-in-law, that Mr Thorne would like to return to work and perhaps study in Western Australia, and that “he has woken up to reality and realises the mistakes he has made in his life”. Again, while the evidence was well short of renunciation or remorse, there were at least some positive signs of change.
Further, Mr Thorne instructed his counsel to tell the Court: (a) that he does not believe that he or any other Muslim is under religious obligation to engage in violence in Australia; (b) that he does not intend to be violent; and (c) that he will not encourage other Muslims to be violent. While it was not of the same weight as evidence from him directly might have been, nevertheless, that he had instructed counsel about these things, knowing that the world at large would be told that these were now his views, had a significance in itself.
Mr Cerantonio
I turn now to Mr Cerantonio.
His mother and two of his brothers provided powerful character references, as did a life-long friend. All speak of remorse and/or a readiness “to put the old life behind him and start fresh”.
Further, while Mr Cerantonio’s counsel conceded that their client had supported certain things that Islamic State published, their instructions were that he has never supported attacking random persons in acts of terror in this country or anywhere. Instead, what he had spoken about was “fighting in a … military way”.
While I am not satisfied that any of that evidence, any of Mr Cerantonio’s untested instructions or any of the other evidence in the case, either individually or collectively, amounts to renunciation or remorse, again, when coupled with his obvious abilities and his history of employment and community involvement, it does give some cause to believe that positive change, while perhaps only in its infancy at the moment, might occur in the longer run.
At the same time, any such finding must be heavily qualified in Mr Cerantonio’s case, given the evidence of his repeated extremist thoughts and utterances over a considerable period of time.
No prior (or no relevant prior) convictions; and previous good character
Messrs Dacre, Granata, Murat and Kadir Kaya
Secondly, I regarded it as significant that each of Messrs Dacre, Granata, Murat and Kadir Kaya had no (or no relevant) prior convictions but a previous history of good character.
These were not men who had shown any history of violence. On the contrary, for the most part, they had worked or studied and otherwise contributed to the community in positive ways. While they were all adults who should have known better, they were otherwise decent but, to some extent, vulnerable individuals who fell under the charismatic influence of Mr Cerantonio and the putrid ideas that he preached.
Mr Thorne
On the face of it, Mr Thorne was in the same position. But there was an important event in his background that must be addressed.
Mr Thorne spent a substantial period in custody in Saudi Arabia. On the evidence before me, however, the nature of the alleged offence, conviction and/or sentence, if any, was unknown. The matter was complicated even further by the fact that he was pardoned by the Saudi Government in any event.
The Crown accepted that it would not be appropriate “to treat that [happening] as though it [were] any kind of prior conviction”, or “to draw any adverse conclusions, so far as sentence is concerned, from [the knowledge] of [his incarceration in Saudi Arabia]”.
I agreed. In those circumstances, I treated Mr Thorne as a person of otherwise good character.
Mr Cerantonio
Mr Cerantonio is also a man without prior or subsequent convictions.
It is also clear that he has engaged in many good works by being involved in ‘peace’ conferences and the like all over the world, and by engaging in paid work in the usual way.
On the other hand, it is plain, from the agreed opening that I have summarised, that, for some years, Mr Cerantonio encouraged others to support or engage in violence to establish or extend the application of Islamic law. Thus, in my view, his otherwise good character is offset by this behaviour, and in a significant way.
Pleas of guilty
A third, and very important, factor in mitigation was that each accused pleaded guilty to the offence.
Messrs Dacre, Granata, Thorne and Murat and Kadir Kaya
All accused ran a contested committal hearing in the Magistrates’ Court and then engaged in extensive pre-trial argument in this Court before pleading guilty. As I indicated earlier, Messrs Dacre, Granata and Kadir Kaya pleaded guilty on 12 December 2018; Mr Cerantonio on 13 December 2018; and Murat Kaya and Mr Thorne on 8 and 22 February 2019 respectively. Thus, none of the pleas came early. On the other hand, the pleas followed successful arguments by the accused concerning the particulars of the indictment, as well as other important arguments relating to the precise nature of the Crown case and the admissibility of evidence. There were still numerous pre-trial arguments to complete at the time of the pleas of guilty.
Those pleas of guilty all avoided a long trial or trials and, I accepted, indicated on the part of each accused a willingness to facilitate the course of justice.
Further, and this was perhaps a minor consideration, but the way in which the accused conducted themselves in this Court suggested that they accepted that they had done wrong and that they accepted the authority of the Court. Not once did they refuse to stand when asked to do so or turn their backs, which is behaviour not unknown for others accused or convicted of offences of or relating to terrorism.
I thought it was also significant that, while the evidence of Murat Kaya’s behaviour prior to his decision to stay in Australia was sufficient to inculpate him in the offence, the forensic reality was that the evidence that he had abandoned the plan may well have made the case against him more difficult for the prosecution. This, in turn, rendered his plea of guilty of more significance.
Similarly, I considered it fair to say that, objectively, the case against Mr Thorne appeared to be the weakest. This, too, rendered his plea of guilty more meritorious than otherwise.
In each case, I was satisfied that these considerations more or less equally offset the fact that Messrs Thorne and Murat Kaya’s pleas were entered somewhat later than the pleas of their co-accused.
The pleas of guilty of all accused also impacted upon other considerations, such as the weight to be accorded to rehabilitation and the need for specific deterrence.
Mr Cerantonio
I turn now to Mr Cerantonio’s plea of guilty. In my view, the foregoing remarks, mutatis mutandis, apply equally to his plea.
I should note that I consider that there was a much stronger case against Mr Cerantonio than any of the other accused. It was he who repeatedly preached the bile that evidenced his intention to encourage others to be involved in the overthrow of the government in the Southern Philippines by force or violence.
That said, for the reasons I gave in respect of his co-accused, Mr Cerantonio’s plea of guilty is still a very significant matter in mitigation.
Prospects of rehabilitation
Messrs Dacre, Granata, Thorne and the Kaya brothers
Next, I was satisfied that each of Messrs Dacre, Granata, Thorne, Kadir Kaya and Murat Kaya had good prospects of rehabilitation.
I did not accept counsel’s submission that Mr Thorne’s prospects were excellent. Nor did I accept any other submission in respect of the other four accused that might have been taken as suggesting that those prospects were better than good. That, I think, would have been to overstate things to a significant degree. But, applying a taxonomy of, say, excellent, very good, good, reasonable, modest, poor and hopeless, I assessed each of those five co-accused’s prospects of rehabilitation as good.
While I would have been more confident of substantially better prospects of rehabilitation had I been positively satisfied that they had renounced the extremist beliefs that motivated their offending, I was nevertheless reasonably sanguine about their prospects, for the following reasons.
First, their previous good character and pleas of guilty pointed in that direction.
Secondly, those same factors, when combined with the positive steps they had taken while in custody, satisfied me that these men could be steered away from inappropriate thoughts and actions and set on the right path.
Thirdly, it seemed that all five co-accused had shown the ability to work and/or study and have the support of family. Further, those that have children missed them terribly and now had every reason to reform so as to ensure they would not miss them again through incarceration.
Fourthly, in Murat Kaya’s case, the decision not to go to Queensland or the Philippines, but instead to stay in Australia, suggested to me an awakening that promised reform.
In the result, I considered that all of this boded reasonably well for the future.
Mr Cerantonio
In Mr Cerantonio’s case, he too has in his favour an absence of prior convictions, the presence of positively good character (albeit qualified), a plea of guilty, a history of work and study, strong family support, and a preparedness to do whatever courses have been available to him in prison. He has engaged with clerics of different faiths, including chaplains from the Anglican, Evangelical and Islamic religions. He is also a highly intelligent person well capable of meaningful change. These are all positive features that augur well for his future.
On the other hand, I am not satisfied his prospects are as strong as those of his co-accused. Again, this is because he has such a long history of extremist thinking. Yes, it is positive that he is showing signs of change and a willingness to expose himself to other lines of thought. But, in my view, his demonstrated thinking and behaviour of the past is so extreme and of such longstanding duration that I cannot accept that his prospects of rehabilitation are as good as those of his co-accused.
The Crown went so far as to submit that those prospects are negligible, particularly because of his long history of extremist views. For the reasons I have given, I do not think his prospects are quite that bleak.
In the result, I would assess his prospects of rehabilitation as between reasonable and moderate, rather than as good on the one hand or as negligible on the other.
Delay
Messrs Dacre, Granata, Thorne and the Kaya brothers
Next, I was satisfied that the delay — of about two years and nine months — between arrest and sentence amounted to a mitigating factor in the cases of Messrs Dacre, Granata, Thorne and the Kaya brothers, in two ways.
First, in the main, those five men had used their time in custody wisely, to assist in their own reform.
Secondly, contrary to the Crown’s submission, I accepted that the strain of not knowing their fate for such a long period must have been a stressful experience. True it was that, in each case, that strain could have been alleviated by an earlier plea of guilty, which might have been offered even within the terms of the original indictment filed in late-2017. But it was also true that the Crown case had narrowed somewhat following pre-trial rulings.
In any event, I still accepted that the strain in not knowing one’s fate for such a long period, even if the accused might have reduced the period by an earlier plea, was a relevant consideration on sentence.
Mr Cerantonio
Turning to Mr Cerantonio, I think the same reasoning applies to his case. He too has used his time on remand wisely and must have suffered the strain of not knowing his fate for a long period.
Hardship of imprisonment on family and on accused
Another potential matter in mitigation concerned the hardship to the accused’s families, and to the accused themselves, of their incarceration.
Mr Dacre
In Mr Dacre’s case, it was submitted that I should have regard to the probable effect that any sentence would have on Mr Dacre’s family or dependants, namely his wife and three young children.
Counsel conceded that the circumstances must be regarded as exceptional before this principle can be invoked.
In addition to the submissions and material I considered on the plea in this regard, I also had regard to the contents of the letter from Mr Dacre’s solicitors, received on the morning of the sentence, concerning Mr Dacre’s wife’s ill-health. I also had regard to two related documents provided just before sentence.
Suffice it to say that, while I was sympathetic to Mr Dacre’s wife’s plight, and that of his children, I was not satisfied that that hardship rose to the exceptional circumstances required to amount to mitigation on the basis of family hardship.
However, I did accept that Mr Dacre’s wife’s illness, and the likely associated impact on their children, and Mr Dacre’s feeling of helplessness as a result, is something that made his time in custody all the more difficult.
Messrs Granata, Thorne and Murat Kaya
I also accepted that similar remarks — albeit not to the same extent — could be made about Messrs Granata, Thorne and Murat Kaya, each of whom had a child he was missing, and one of whom has a wife who had found things very difficult in the absence of her husband.
Mr Cerantonio
While I did not understand any such submission was put to me, I think in fairness that the same reasoning should be applied to Mr Cerantonio, albeit not to the same extent as Mr Dacre, for he too has two children (by his first wife) whom he sees only infrequently.
Kadir Kaya’s relative youth
Kadir Kaya, on the other hand, did not have children and was no longer married. That said, at only 21, he was a good deal younger than the other accused at the time of the offending, and therefore, I think, was more likely to be more impressionable and more susceptible to the views of Mr Cerantonio. Thus, I considered it appropriate to make some allowance for his relative youth in mitigation of sentence.
That said, as can be seen from the sentences previously imposed, despite this difference in his favour, when all matters were balanced, I did not think that he and Messrs Dacre and Granata should be sentenced any differently.
Mr Thorne’s back injury
Next, I turn to a particular hardship that Mr Thorne has suffered in custody since November 2018 and will continue to suffer to some extent while he remains in custody.
For the three months or so leading up to his sentence, Mr Thorne had suffered considerable pain and embarrassment due to a serious back injury and its consequences. In November last year, Mr Thorne was found collapsed on the floor of his prison cell, paralysed and in considerable pain. It was discovered that he had a serious instance of cauda equina. In particular, he had suffered a twelve-millimetre protrusion of a lumbar disc into his nerve canal. Emergency surgery was required to relieve the pressure on his nerves, lest he remain paralysed and in pain.
The surgery was successful, although he still had a five-millimetre protrusion. Further, he had been left with quite a debilitating degree of difficulty with toileting. Not surprisingly, he found this very hard to manage in a custodial setting. He had to explain his toileting needs over and over again to different prison staff, which was stressful and embarrassing.
His post-surgery medical treatment was less than ideal. As at the time of sentence, he had not had the physiotherapy treatment that had been recommended for him. Disturbingly, he was also the victim of a targeted assault, after his surgery, precisely in the area of his injured back. Luckily, it seems his condition was not exacerbated by this incident, but his feelings of vulnerability remained.
Finally, medical opinion before me was that there will be long-term risks to his bladder, bowel and sexual function.
As a result of his affliction and difficulties, I had excused Mr Thorne from attending court on occasions and otherwise allowed him to appear by way of video-link for pre-trial argument, the plea in mitigation and even the day of sentence.
On the one hand, I was satisfied that Mr Thorne’s difficulties associated with his back made, and would continue to make, his time in custody significantly more onerous than for other prisoners in general and his co-accused in particular. On the other, the hardship had occurred only since November and not for the duration of his period in custody, which limited its weight as a mitigating factor. That said, I acknowledged that this would be an ongoing hardship for him in custody, which gave the problem an added significance.
Forfeiture
Next, before turning to sentencing purposes and other matters, I shall deal with the Crown’s application for forfeiture under the Proceeds of Crime Act 2002 (Cth) (“the POC Act”).
In the case of Mr Cerantonio, but not in the cases of the co-accused, the Crown applied for three ancillary orders relating to forfeiture.
Mr Thorne’s Koran
After the Court notified all accused of the application, only one, Mr Thorne, raised any objection, and only concerning the one item, namely his Koran (which is part of item (lviii) in the Schedule to the application).
Counsel for Mr Thorne made the following (written) submissions:
[1] The Director’s application alleges the Koran is an “instrument” (not proceeds) of crime. Pursuant to s 329(2) of the POC Act, property will be an instrument of an offence if “(a) the property is used in, or in connection with, the commission of an offence; or (b) the property is intended to be used in, or in connection with, the commission of an offence”.
[2] Despite the wide meaning given to the term “instrument”, the core religious text of Islam could not and, in this case, did not amount to an instrument of crime. The Koran was in Mr Thorne’s possession at the time of his arrest. It may be inferred that he intended to take it with him. However, the Director does not identify any way in which Mr Thorne’s copy of the Koran was used or was intended to be used in connection with the commission of the joint offence of which Mr Cerantonio or Mr Thorne were convicted. While the Director’s case involved Mr Cerantonio quoting parts of the Koran in his proselytising, there is no reason to believe he relied on Mr Thorne’s Koran to do so.
[3] Even if the Koran is an instrument of crime, the discretion not to order forfeiture should be exercised for two reasons: one general and one personal to Mr Thorne. First, generally, the objects of the Act should not be applied to result in the destruction by the State of the core religious text of a religion Mr Thorne has a right to observe and which, in itself, does not promote the joint offence of which he or Mr Cerantonio was convicted or terrorism more generally. The freedom to observe and practice one’s religion, including in private, to which the possession of one’s own religious text relates, is a protected right. It is protected by various enactments, including the Charter of Human Rights and Responsibilities Act 2006 (Vic), and has been acknowledged as relevant to statutory interpretation, guides the development of the common law and is indicative of contemporary values.
[4] Second, the particular copy of the Koran the subject of the application is the copy Mr Thorne has held since he lived in Saudi Arabia. It is the copy of the Koran he relied upon for spiritual repose during his period of detention there. It is of considerable sentimental and spiritual significance to Mr Thorne.
The Crown made no submissions in response.
In my view, it is unnecessary to determine whether the copy of the Koran in question is an instrument of crime or whether the objects of the Act should be applied to result in the destruction by the Commonwealth of a core religious text. That said, I should have thought that, ordinarily, the answer to the second question would be a resounding “no”.
In any event, s 48(3) of the POC Act provides as follows:
In considering whether it is appropriate to make an order under subsection (2) in respect of particular property, the court may have regard to:
(a) any hardship that may reasonably be expected to be caused to any person by the operation of the order; and
(b) the use that is ordinarily made, or was intended to be made, of the property to be specified in the order; and
(c) the gravity of the offence or offences concerned.
Even if Mr Thorne’s Koran could be said to be an instrument of crime, I accept counsel’s submission that, in the exercise of my discretion, I should decline to order forfeiture. Yes, the offence is serious, but the use that is ordinarily made of a Koran is study or prayer. And, for the reasons advanced by his counsel, I accept that there would be hardship to forfeit Mr Thorne’s copy of the Koran because it is a religious text of considerable sentimental and spiritual significance to him.
Orders
Since there were no other objections to the application, I shall make the following orders:
1) Pursuant to s 48 of the Proceeds of Crime Act 2002 (Cth) (“the POC Act”), the property specified in the Schedule to the application (dated 8 March 2019 and filed at Court on 15 March 2019) (“the property”), except that part of item (lviii) listed in the Schedule and described as “a copy of the Quran”, is forfeited to the Commonwealth.
2) Pursuant to s 56 of the POC Act, I declare that the value of the property (other than money) is $20,350.
3) Pursuant to s 58(2) of the POC Act, I direct the Official Trustee to execute any deed or instrument in the name of any person who owns or has an estate interest or right in the said property and to do any act or thing necessary to give validity and operation to any such deed or instrument, as may be necessary or convenient for giving effect to the order in paragraph (a), above.
Effect of forfeiture on sentencing
Finally, I turn to the possible effect of forfeiture on sentencing Mr Cerantonio.
Section 320 of the POC Act, in so far as is relevant, provides as follows:
Effect of the confiscation scheme on sentencing
A court passing sentence on a person in respect of the person’s conviction of an indictable offence:
(a) may have regard to any co-operation by the person in resolving any action taken against the person under this Act; and
(b) must not have regard to any forfeiture order that relates to the offence, to the extent that the order forfeits proceeds of the offence; and
(c) must have regard to the forfeiture order to the extent that the order forfeits any other property;
…
Mr Cerantonio made no objection to the Crown’s application for forfeiture.
In the Crown’s submission, the forfeiture “really doesn’t have much effect, if any, on … sentencing in this particular case”. Counsel for Mr Cerantonio made no submission to the contrary.
I think it is proper to have regard, pursuant to s 320(a), to Mr Cerantonio’s co-operation in making no objection to the orders sought.
While it is difficult, in the absence of submissions from his counsel, and in circumstances where it appears that much of the property forfeited belonged to his co-accused, to estimate the extent to which, if at all, the order forfeits Mr Cerantonio’s property other than proceeds of the offence, I think it is also proper to make some (small) allowance for that fact, particularly given that s 320(c), on its face, is a mandatory provision.
That is how I shall proceed.
Sentencing purposes
I turn now to the purposes of sentencing.
Messrs Dacre, Granata, Thorne, Kadir Kaya and Murat Kaya
When sentencing the five co-accused, I factored in my view that general deterrence, curial denunciation and punishment were important sentencing purposes in the present case. I remarked that this Court must be astute to denounce, in the strongest terms, behaviour of the type in which these accused engaged and send a signal that such crimes will be met with significant punishment, even when the offending is only preparatory in nature and no harm ever comes of it. The very point of criminalising such behaviour is to ensure that the more sinister planned actions never come to fruition.
I also remarked that specific deterrence is important, but it is moderated by the fact that each accused had no (or no relevant) prior convictions, was otherwise of previous good character, had pleaded guilty and had good prospects of rehabilitation.
I also considered protection of the community to be an important consideration in sentencing those five accused. Again, had I been satisfied that each accused had formally renounced the extremist views that motivated the offending, I would have considered community protection to be of less importance. That said, each of those five accused’s promising progress towards a change in thinking was, I considered, a factor limiting the need for protection of the community.
Finally, I also considered that rehabilitation was an important purpose for fixing sentence in this case. Each of the five accused’s prospects of rehabilitation made that so. Further, I remarked to the effect that it must be understood that the order of sentence to be imposed means that each accused will be released back into the community eventually in any event. I also expressed my view that it is far better that each accused be returned to the community with his chances of reform maximised rather than crushed by a sentence that otherwise does no more than incapacitate him.
Mr Cerantonio
I think that those remarks concerning general deterrence, curial denunciation and punishment apply with greater force to Mr Cerantonio’s more serious example of the offence.
Further, given his more serious offence, his long history of extremist thinking and his lesser prospects of rehabilitation, I think that specific deterrence and protection of the community are sentencing purposes that also carry greater weight in Mr Cerantonio’s case.
Finally, despite those lesser prospects of rehabilitation, in my view, rehabilitation still remains an important sentencing purpose for Mr Cerantonio. Indeed, it is not only in his interests but also in the community’s interest that he be rehabilitated. Accordingly, I repeat, it is far better that he too be returned to the community with his chances of reform maximised rather than crushed by a sentence that otherwise does no more than incapacitate him.
Comparative cases
On the pleas in mitigation, counsel referred me to several other cases in which sentences have been imposed in this and other States for offences of a similar nature. I shall not rehearse those cases now. Suffice it to say two things.
First, I consider that the sentences I imposed on the co-accused, and the sentence I am about to impose on Mr Cerantonio, were and are consistent with the sentences imposed in those cases to which I was referred.
Secondly, none of those cases was quite the same as the present. Thus, I was driven, and again have been driven, to rely principally on the particular circumstances of each accused’s case and sentencing principles to arrive at the appropriate sentence for their offences. That said, in sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. And, in any event, sentences are not precedents to be distinguished or applied.
Submissions
I turn now to counsel’s submissions on sentence.
Messrs Dacre, Granata and Kadir Kaya
Counsel for Messrs Dacre, Granata and Kadir Kaya respectively submitted that, taking into account all matters, a sentence at or about four years’ imprisonment with a non-parole period of three years would be appropriate.
Counsel for the Crown accepted that it would be open to impose such sentences.
In the end, I concluded that, as between these three accused, the various mitigating factors all balanced each other out. Further, given their similar involvement in the offending, I came to the view that each of these three accused should receive the same sentence.
Murat Kaya
Counsel for Murat Kaya submitted that, because of their client’s less serious example of the offence, he should receive a lesser sentence than the other three.
Counsel for the Crown accepted that that difference would justify a moderate reduction in sentence.
As I have indicated already, I accepted the Crown’s concession that Murat Kaya’s moderately less serious offence should result in a moderately shorter sentence.
Mr Thorne
Counsel for Mr Thorne submitted, and counsel for the Crown conceded, that, as result of the back injury and its adverse impact on him during at least some of his time in custody, Mr Thorne should receive a lesser sentence than the sentences imposed on Messrs Dacre, Granata and Kadir Kaya. It was implicit, if not explicit, in the Crown’s submissions that, but for the mitigation arising out of his back injury, Mr Thorne should receive the same sentence as, or one similar to, those three accused. However, as difficult as Mr Thorne’s back injury had been, and would continue to be, I did not consider it to be of the same mitigatory weight as was present in Murat Kaya’s less serious example of offending.
These competing factors explain why it is that the sentence I imposed on Mr Thorne fell between the sentences imposed on Messrs Dacre, Granata and Kadir Kaya on the one hand and Murat Kaya on the other.
Mr Cerantonio
Counsel for Mr Cerantonio submitted that a head sentence in the range of six years’ imprisonment would be appropriate. Such a sentence, it was submitted, would give effect to the purposes of sentencing and the disparity, in terms of moral culpability, between Mr Cerantonio on the one hand and the five co-accused on the other.
Counsel for the Crown conceded that to impose a head sentence of six years’ imprisonment would not be an appealable error. Equally, however, counsel made it clear that the Crown was not inviting the Court to say that that would be the appropriate sentence.
As it turned out, having considered all relevant matters, I arrived at sentences for each of the co-accused that were consistent with both the submissions of their counsel and the concessions made by counsel for the Crown.
In Mr Cerantonio’s case, however, there is not the same happy unity of submissions, concessions and sentence. While I have paid close regard to the defence submission and the Crown concession that a head sentence of six years’ imprisonment would not involve appealable error, I think it is necessary to impose a heavier sentence in order adequately to reflect all relevant considerations, including the purposes for which sentence must be imposed in this case.
No sentence other than imprisonment appropriate
I should add three further points.
First, while no submissions were put to the contrary, nevertheless, I should state that, in my view, in all of the circumstances, including the nature and gravity of the offence committed by each of the five accused previously before the Court, and by Mr Cerantonio, no sentence other than imprisonment was or is appropriate.
Parity
Secondly, in arriving at all of those sentences, I have had regard to the principle of parity among co-offenders.
Parsimony
Finally, I have also had regard to the principle of parsimony, which provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.
Sentence
Mr Cerantonio, would you please stand?
On the offence of engaging in conduct preparatory to the offence of entering the Philippines with the intention of engaging in a hostile activity in that country, Mr Cerantonio is convicted and sentenced to seven years’ imprisonment.
In this case, the law requires that I fix a non-parole period and that that period must be at least three-quarters the length of the head sentence. In Mr Cerantonio’s case, I fix a non-parole period of five years and three months. I see no reason to fix a non-parole period beyond the statutory minimum period, and every reason to keep that period to the minimum.
Pursuant to s 16E of the Crimes Act 1914 (Cth) and s 18 of the Sentencing Act 1991 (Vic), I declare that this sentence commences today and that 1,089 days of pre-sentence detention, including today, have already been served under the sentence imposed.
I shall say four more things (and make some comments) about this sentence and related matters. (I should note that I made similar remarks when sentencing each of the other five accused.)
First, whether — and, if so, when, after the non-parole period has expired — a sentenced person is released on parole is a matter for the Attorney-General, not this Court.
Secondly, I am required to explain to Mr Cerantonio the purposes and consequences of fixing a non-parole period. The purpose of fixing a non-parole period is to fix the minimum period to be served in prison having regard to all the circumstances of the case, including the statutory requirement that, in the present, the non-parole period must be at least three-quarters of the length of the head sentence. If a parole order is made, the offender will be required to serve the balance of his prison sentence in the community. The purposes of parole are the protection of the community, the rehabilitation of an offender, and the reintegration of an offender into the community. A parole order is subject to conditions, such as a condition to be of good behaviour, and may include other conditions, such as supervision. The conditions may be amended. Further, if there is a failure, without reasonable excuse, to comply with parole conditions, a parole order may be revoked, and the offender may be required to serve the remainder of the sentence in prison.
Thirdly, pursuant to s 105A.23 of the Code, I am also required to warn Mr Cerantonio that, because of the nature of the offence of which he has been convicted, an application may be made to this Court under Division 105A of the Code for a continuing detention order requiring him to be detained in a prison after the end of his sentence for the offence.
That said, I wish to make a couple of comments, which of course are in no way binding on those who might consider making, or any Court that might have to determine, any such application. While it is of course difficult to predict how persons will behave in the future, on the material that I have seen over the life of these and related proceedings, and despite the less sanguine view I have expressed about his prospects of rehabilitation vis-à-vis those of his co-accused, I think it would be unduly harsh, and potentially counter-productive, to make a continuing detention order against Mr Cerantonio. On the contrary, assuming his behaviour in prison warrants it, I should have thought that it would be preferable, and ultimately in the interests of the community, to ensure that Mr Cerantonio is released on parole at the earliest opportunity, with whatever reasonable conditions might be deemed necessary, so that he may commence his reintegration into the community, which in turn should foster his rehabilitation and thereby better protect the community in the longer term. Simply to deny him parole and then release him at the end of his full head sentence without the protective and rehabilitative strictures of parole is to put off to another day — and to foist onto a slightly younger generation — a perceived concern that ought to be confronted at the earliest opportunity. Approaches of this kind have been tried elsewhere, and have failed miserably.
Finally, I am required, by s 6AAA of the Sentencing Act, to declare the sentence and non-parole period I would have imposed had there not been a plea of guilty. This is often a difficult exercise, because pleas of guilty and not guilty respectively may have differing impacts on other factors relevant to sentencing, such as findings regarding prospects of rehabilitation and the weight to be accorded to principles such as specific deterrence. Further, the sentencing facts agreed by the parties on pleas of guilty, which are usually acted on by a court, may be different from those that a court would find following a trial.
Nevertheless, recognising these limitations, I declare that, in respect of Mr Cerantonio, but for his plea of guilty, I would have imposed a sentence in the order of ten years’ imprisonment with a non-parole period of seven-and-a-half years.
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