R v EB

[2018] NSWSC 201

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v EB [2018] NSWSC 201
Hearing dates:	13 December 2017 & 2 February 2018
Date of orders:	02 March 2018
Decision date:	02 March 2018
Jurisdiction:	Common Law - Criminal
Before:	Davies J
Decision:	For the offence contrary to s 119.4(5) of the Criminal Code of intentionally performing services for Amin Elmir with the intention of supporting the commission by him of an offence against s 119.1, and taking into account the offence contrary to s 119.4(1) of the Criminal Code of committing acts in preparation for incursions into a foreign country for the purpose of engaging in hostile activities, the offender is sentenced to a term of imprisonment for two years and three months commencing 3 November 2016 and expiring 2 February 2019 with a non-parole period of one year eight months and one week expiring 9 July 2018.
Catchwords:	CRIMINAL LAW – sentence – foreign incursion offences – ss 119.1 and 119.4 Criminal Code (Cth) - offender performed services for another with the intention of supporting the commission by them of an offence against incursions into a foreign country for the purpose of engaging in hostile activities – s 16BA offence – offender doing preparatory acts for incursion into a foreign country for the purpose of engaging in hostile activities - offending underpinned by an adherence to extremist ideology – offender made telephone calls to obtain assistance for co-offender to cross from Turkey to Syria – no assistance obtained - low level of objective seriousness – weight given to subjective circumstances – offender aged 16 and 17 at time of offending - acts preparatory to foreign incursion distinguished from terrorist acts directed less remotely towards the Australian community – risk of re-offending – lack of developed risk assessment protocols based on actuarial studies CRIMINAL LAW – sentencing of juveniles – Children (Criminal Proceedings) Act 1987 (NSW) s 19 – whether special circumstances justify offender’s detention as a juvenile after the age of 18 years – meaning of “unacceptable risk” of suffering physical or psychological harm – relevant factors – likely that offender would be incarcerated in a facility with others whom the offender knows and a significant proportion of whom have been convicted of similar offences – offender formerly addicted to Islamic State propaganda – offender feared that he could again be inculcated with extremist ideology – unacceptable risk of offender suffering psychological harm in the form of re-radicalisation if not detained as a juvenile offender
Legislation Cited:	Bail Act 2013 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) s19 Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1914 (Cth) ss16A, 16BA, 19AG Crimes (High Risk Offenders) Act 2006 (NSW) Criminal Code (Cth) ss100.1, 105A, 117.1, 119.1, 119.4
Cases Cited:	DPP (Cth) v MHK [2017] VSCA 157 Hoare v The Queen (1989) 167 CLR 348 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 R v Alqudsi [2016] NSWSC 1227 R v Lodhi (2006) 199 FLR 364 R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365
Category:	Principal judgment
Parties:	Crown EB (Offender)
Representation:	Counsel: T McDonald SC & S Goodwin (Crown) T Anderson (Offender)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Peter Murphy Criminal Law (Offender)
File Number(s):	2016/328147

Judgment

1. The offender was charged with the following two offences; that he:

1. Between about 13 January 2015 and about 19 January 2015 at Sydney in the State of New South Wales, did, contrary to section 119.4(1) of the Criminal Code, while being at the time an Australian citizen, intentionally engage in conduct, namely, did commit acts in preparation for incursions into a foreign country, namely the Syrian Arab Republic, for the purpose of engaging in hostile activities, being reckless as to the fact that the conduct was preparatory to the commission of an offence under section 119.1.

Particulars of the offence against section 119.1

That EB engage in conduct in the Syrian Arab Republic being enter a foreign country with intent to engage in a hostile activity in that or any other foreign country, with the intention of achieving one or more of the following objectives:

(a)   the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country);

(b)   the engagement, by that or any other person, in action that:

(i) falls within subsection 100 1(2) but does not fall within subsection 100.1(3), namely action:

a.   causing serious harm that is physical harm to a person; or

b.   causing serious damage to property; or

c.   causing a person's death; or

d.   endangering a person's life, other than the life of the person taking the action: or

e.   creating a serious risk to the health or safely of the public or a section of the public; and

(ii) if engaged in in Australia, would constitute a serious offence,

(c)   intimidating the public or a section of the public of that or any other foreign country;

(d)   causing the death of, or bodily injury to, a person who is the head of state of that or any other foreign country, or holds, or performs any of the duties of a public office of that or any other foreign country (or of a part of that or any other foreign country);

(e)   unlawfully destroying or damaging any real or personal' property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country).

Contrary to section 119.4(1) of the Criminal Code (Cth) (Law Part Code: 65238)

2. Between about 13 April 2016 and about 9 September 2016 at Sydney in the State of New South Wales, did, contrary to section 119.4(5) of the Criminal Code, while being at the time of the conduct an Australian citizen, intentionally perform services for a person or receive or solicit the performance of services, namely the performance of services for Amin ELMIR to enter the Syrian Arab Republic, with the intention of supporting or promoting the commission of an offence against section 119.1.

Particulars of the offence against s 119.1

That Amin ELMIR engage in conduct in the Syrian Arab Republic being enter a foreign country with intent to engage in a hostile activity in that or any other foreign country, with the intention of achieving one or more of the following objectives:

(a)   the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country);

(b)   the engagement, by that or any other person, in action that:

(i) falls within subsection 100.1(2) but does not fall within subsection 100 1(3); namely action:

a.   causing serious harm that is physical harm to a person; or

b.   causing serious damage to property; or

c.   causing a person's death, or

d.   endangering a person's life, other than the life of the person taking the action; or

e.   creating a serious risk to the health or safety of the public or a section of the public; and

(ii) if engaged in in Australia, would constitute a serious offence,

(c)   intimidating the public or a section of the public of that or any other foreign country;

(d)   causing the death of, or bodily injury to, a person who is the head of state of that or any other foreign country, or holds, or performs any of the duties of, a public office of that or any other foreign country (or of a part of that or any other foreign country);

(e)   unlawfully destroying or damaging any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country).

Contrary to section 119.4(5) of the Criminal Code (Cth) (Law Part Code- 85242)

2. On 6 October 2017 the offender pleaded guilty to the second count on the indictment and asked that the first matter be taken into account under s 16BA of the Crimes Act 1914 (Cth). The plea was accepted by the Crown in full satisfaction of the indictment.

Legislative provisions

3. So that the facts can be properly understood it is necessary to set out the relevant provisions under which the offender was charged.

4. Section 117.1(1) of the Criminal Code (Cth) relevantly provides:

engage in a hostile activity: a person engages in a hostile activity in a foreign country if the person engages in conduct in that country with the intention of achieving one or more of the following objectives (whether or not such an objective is achieved):

(a)   the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country);

(b)   the engagement, by that or any other person, in action that:

(i)   falls within subsection 100.1(2) but does not fall within subsection 100.1(3); and

(ii)   if engaged in in Australia, would constitute a serious offence;

(c)   intimidating the public or a section of the public of that or any other foreign country;

(d)   causing the death of, or bodily injury to, a person who is the head of state of that or any other foreign country, or holds, or performs any of the duties of, a public office of that or any other foreign country (or of a part of that or any other foreign country);

(e)   unlawfully destroying or damaging any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country).

5. Section 100.1 relevantly provides:

(2)   Action falls within this subsection if it:

(a)   causes serious harm that is physical harm to a person; or

(b)   causes serious damage to property; or

(c)   causes a person’s death; or

(d)   endangers a person’s life, other than the life of the person taking the action; or

(e)   creates a serious risk to the health or safety of the public or a section of the public; or

(f)   seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

(i)   an information system; or

(ii)   a telecommunications system; or

(iii)   a financial system; or

(iv)   a system used for the delivery of essential government services; or

(v)   a system used for, or by, an essential public utility; or

(vi)   a system used for, or by, a transport system.

(3)   Action falls within this subsection if it:

(a)   is advocacy, protest, dissent or industrial action; and

(b)   is not intended:

(i)   to cause serious harm that is physical harm to a person; or

(ii)   to cause a person’s death; or

(iii)   to endanger the life of a person, other than the person taking the action; or

(iv)   to create a serious risk to the health or safety of the public or a section of the public.

6. Section 119.1 relevantly provides:

119.1   Incursions into foreign countries with the intention of engaging in hostile activities

Offence for entering foreign countries with the intention of engaging in hostile activities

(1)    A person commits an offence if:

(a)   the person enters a foreign country with the intention of engaging in a hostile activity in that or any other foreign country; and

(b)   when the person enters the country, the person:

(i)   is an Australian citizen; or

(ii)   is a resident of Australia; or

(iii)   is a holder under the Migration Act 1958 of a visa; or (iv)   has voluntarily put himself or herself under the protection of Australia.

Penalty: Imprisonment for life.

7. Section 119.4 relevantly provides:

119.4   Preparations for incursions into foreign countries for purpose of engaging in hostile activities

Preparatory acts

(1) A person commits an offence if:

(a)   the person engages in conduct (whether within or outside Australia); and

(b) the conduct is preparatory to the commission of an offence against section 119.1 (whether by that or any other person); and

(c)   when the person engages in the conduct, the person:

(i)   is an Australian citizen; or

(ii)   is a resident of Australia; or

(iii)   is a holder under the Migration Act 1958 of a visa; or

(iv)   has voluntarily put himself or herself under the protection of Australia; or

(v)   is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

(5)   A person commits an offence if:

(a)   the person engages in any of the following conduct (whether within or outside Australia):

(i)   giving money or goods to, or performing services for, any other person, body or association;

(ii)   receiving or soliciting money or goods, or the performance of services; and

(b) the person engages in the conduct with the intention of supporting or promoting the commission of an offence against section 119.1; and

(c)   when the person engages in the conduct, the person:

(i)   is an Australian citizen; or

(ii)   is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv)   has voluntarily put himself or herself under the protection of Australia; or

(v)   is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Facts

8. The offender was born on 8 January 1999. At the time of the s 16BA offence, which was committed on 13 January 2015, he had just turned 16 years of age. At the time of the principal offence he was aged 17 years.

The s 16BA offence

9. On 13 January 2015 the offender purchased a return ticket to Turkey. He was scheduled to depart Sydney on 18 January 2015 and return to Sydney on 11 March 2015.

10. On 15 January 2015 he attended the Australia Post Office in Granville with an unknown man and credited $400 on a cash card. Shortly afterwards he used the cash card to book accommodation in Turkey and obtain a Turkish visa.

11. On 18 January 2015 he attended Sydney International Airport where he was stopped and subsequently interviewed by the police. In his record of interview he said he was going on holidays to Turkey, his parents did not know he was travelling overseas as he had told them he was going fishing, and he was not travelling to Turkey for the purpose of entering Syria to undertake incursion activities.

12. When the offender was arrested at the airport on 18 January 2015 an Apple Iphone was located on him and seized by police. At all relevant times the offender was the sole user of that mobile phone.

13. When the material on the phone was analysed it was found to contain the following:

•   Three different photographs of the offender with other associates which depicted him posing with his index finger raised. This hand gesture or “one finger salute” is commonly used by supporters of Islamic State and other jihadist groups but is based on a traditional Muslim gesture.

•   A photograph of the offender standing with his arms crossed in front of a street sign for “Isis Street”. The image was taken on the corner of Isis Street and Smithfield Road in Fairfield West;

•   264 pictures that have been categorised as Islamic State or extremist related material including beheadings of a number of persons, the mass execution of individuals being shot in the head with high powered rifles, images of Islamic State members carrying around the severed heads of unidentified persons, images of various men in combat attire carrying weapons and riding on tanks, various depictions of the Islamic State flag and other images and motives associated with jihadism, images of Osama Bin Laden and others associated with terrorist related groups, and images of Australian citizens suspected or known to have travelled to conflict zones and being killed;

•   Multimedia files that have been categorised as Islamic State propaganda and containing Islamic chants featuring Islamic State imagery;

•   Google searches on things including the meaning of “terrorist” and “militia”, Google searches on ASIO, Mujhideen and similar matters;

•   Chat logs dated 26 September 2014 during which the offender sent and received messages about Omar Azari, an associate of the offender who was charged with terrorism offences;

•   A number of SMS messages sent and received by the offender from which it can be inferred he held and expressed extremist views.

14. The offender was released and not charged at that time.

15. Subsequent to the seizure of the offender’s phone, he commenced using a different mobile number. The messages and calls on that phone were intercepted by the authorities. Relevantly, the following was found:

•   On 30 April 2016 the offender sent to another person an image of two young children hugging, who appeared to be bloodied and deceased, with the following comments: “If dying so these children can live a happy life is terrorism may I die the biggest terrorist”.

•   On 7 May 2016 the offender sent a message as follows: “Allah knows my intention of wanting to die a Shaheed [Islamic martyr] … so in sha Allah I will.” An emoji of a lion’s head was also sent. The image of the lion is commonly used to represent those who are fighting for Islam including Islamic State operatives and other jihadist groups.

16. Significantly, on 30 May 2016 the offender told an undercover law enforcement officer [Person 1] the following:

I tried making hijra. [Hijrah was historically known as the migration of the Islamic prophet Muhammad and his followers from Mecca to Medina in 622CE. More recently the term Hijrah has been used by some to describe the

movement of people from non-Islamic countries to Islamic countries and often refers to people travelling to conflict zones occupied by Islamic State]

1 and a half years ago

I was pulled of the airplane by 6 officers armed

got arrested

…

I would sacrife my whole family to come to the state...

when I tried coming to d [dawla] I was telling them I'm going turkey to see family

they like mate were not stupid

we know exactly where ur going

the boys I hang around they...

alot of them left to d [dawla]

and the few that remained behind

we all tried leaving one by one

and were all stopped

now all of them are in jail

The principal offence

17. On 7 April 2016 Amin Elmir departed Australia on board a Qatar airlines flight in the company of family members bound for Saudi Arabia. The offender accepts that this fact occurred, but there is no evidence that as at 7 April 2016 the offender knew of Elmir’s plans to leave Australia for Syria or that he knew when Elmir had in fact left or what Elmir’s plans were upon his arrival in Syria.

18. Between 25 May 2016 and 19 June 2016 the offender engaged in a number of telephone conversations with Person 1 on the one hand and Elmir on the other with a view to obtaining assistance from Person 1 to get Elmir into Syria. The offender told his caseworker at Juvenile Justice that he did not have any personal relationship with Elmir and he knew Elmir had a reputation of holding very extreme views. The offender also said that, having found out through his peer network that Elmir was overseas, he sought Elmir out on social media and contacted him to assist Elmir in any way that he could. He said that he chose to engage in the offence and was not influenced or pressured by others.

19. The offender accepts that his purpose in sending the messages and having conversations was to facilitate the crossing by Elmir from Turkey to Syria in order for Elmir to engage in hostile activities in Syria and to expedite Elmir entering Syria before he changed his mind and returned to Australia. He agreed that he was determined to ensure that Elmir stayed in Turkey in order to cross into Syria when Elmir, after a bad experience in Turkey, was thinking of coming back to Australia. The offender also agreed that he encouraged Elmir to engage in hostile activities in Turkey such as a violent attack on a Turkish military site.

20. The offender accepts that there were 14 such messages.

21. So that the objective seriousness of the offending can be properly assessed, it is necessary to summarise some of the material in a number of the phone calls.

22. On 25 May 2016 at 3:20pm the offender spoke to Person 1. He said he really needed help with something. There was a brother in Turkey from Australia. He asked Person 1:

Can u help him get in.

Do u know any connections who can get him in.

Person 1 said there was a brother whom Person 1 would have to ask. He then asked if the person who needed the help had a tazkiyah (a purified soul). The offender said that he could vouch for the person. The offender asked Person 1 to get back to him that night because the brother had been there for a while.

23. On 26 May 2016 at 11:04am, in a further phone call, Person 1 told the offender that he sent a message to a brother in Turkey and was waiting for a reply. He asked how could his contact make contact with “this stranded brother” (i.e. Elmir). The offender said he could contact him through Facebook.

24. On 26 May 2016 at 11:13pm in another phone conversation, Person 1 said that his contact, brother Abu Djanh, had answered his message and would assist the brother as long as the brother had a tazkiyah. He asked how brother Abu Djanh was to contact him. The offender replied that he would make arrangements to get in contact with him the following day and the brother would be on Telegram, which is an instant messaging service.

25. On 27 May 2016 at 2:39pm the offender had a conversation with Elmir using the username Muhamad Dawah. He said:

If u not have gotten what u wanted yet download telespeak to this brotha. A bro named Abu D will contact u.

The offender accepts that the words “If u not have gotten what u wanted yet” is a reference to Elmir crossing the Turkish border into Syria.

26. On 27 May 2016 at 2:41pm the offender had a further discussion with Person 1. They were trying to ascertain how best for Abu D to contact Elmir, whether by Facebook or on Telegram. The offender said he should be contacted on Facebook but Person 1 told the offender to tell Elmir to download Telegram. The offender said he would do so.

27. On 30 May 2016 at 4:37pm the offender was contacted by a member of the Joint Counterterrorism Team called CP1. There was discussion about the offender wanting assistance to help Elmir get to Syria. There was then further discussion about the offender passing on CP1’s Telegram name to Elmir. CP1 asked the offender if he knew the brother and if he was strong in his religion or spirituality. The offender said he knew him and he was very good.

28. On 5 June 2016 at 7:49am the offender, using the username Muhamad Dawah, contacted Elmir telling him to download Telegram and that the offender would get Elmir in contact with the brothers.

29. On 5 June 2016 at 7:50am the offender using the username Michael Markis contacted Elmir and said to him that there was a brother in Turkey who Elmir should message to work everything out. Elmir said that he had already spoken to someone where he was and he was waiting “on a way”. They then exchanged pleasantries before the offender said that he had to go, but that if the person Elmir was in contact with didn’t help him then Elmir should let him know so he could tell the brothers here.

30. Almost immediately the offender contacted CP1 and told him that he had spoken to the brother in Turkey and someone over there would be helping him. He told CP1 that he said to Elmir “if it doesn’t work” he (the offender) had contacts that could help him.

31. The next conversation was on 12 June 2016 at 7:01pm. Elmir contacted the offender because he said the offender had sent him a message. The offender said that he had done so some time ago. He told Elmir to “make sure you keeping changing hotels akhi” (brother).

32. On 17 June 2016 at 11:48am the offender and Elmir had a further conversation. The offender told Elmir that he told some of the “boys here” that Elmir was still in Turkey and everyone was shocked because it had been so long. After some further discussion about the delay Elmir told the offender that he needed somebody to go past his mailbox in Australia and see if there was money there. The offender said that he would see if he could make it or if not he would send a “bro” to do it. Elmir provided his address in Bass Hill to the offender. There is no evidence that the offender ever attended Elmir’s house to check for money in the letterbox as Elmir had requested.

33. On 19 June 2016 at 1:17am the offender and Elmir had a further conversation. Elmir told the offender that he had been thrown out on the street with all the military equipment. He said he was in the middle of the street with bags and he could not get a hotel. The offender told him to “go get a cheap sketchy hotel for now” and “jump in a cab”. Elmir told him that his passport had been revoked and he was carrying all the military equipment. The offender said:

Don’t come back… do whatever but don’t come back wallahi u will bite ur nails for D rest of ur life.

34. Elmir said he could get a house in Turkey but he would have to wait a month. He asked the offender if he could speak to anyone in Islamic State and tell them of his situation. He asked what he was going to do with the military equipment. The offender told him that he could get him contacts if he was able to do so. He said there was no life except under Sharia.

35. Elmir described what had happened: how he had been kicked out from his accommodation and how they attempted to rob him. The offender said to him:

Try and find contacts to cross the border.

He said that once Elmir lived under Sharia everything would change, that coming back to Australia was the worst thing anyone could do. Elmir asked the offender, “Tell me what to do. My passport [is] revoked I can’t get passport”. The offender again told him to go to cheap, sketchy hotels. He said, “Just use the person to cross” (presumably, into Syria). The offender said he could “Go do a op (sic) on Turkish military instead”.

36. On 19 June 2016 at 8:40pm Elmir contacted the offender to tell him he found a solution. He had found a hotel. When the offender asked what he was going to do Elmir said he did not know. The offender told him not to throw away the opportunity to make hijra to Islamic State or he would regret it.

37. On 19 June 2016 at 10:56pm Elmir rang the offender to tell him that there was one direct way for him to get in. He said that it would be that day or the next but he needed US$700. The offender said he could not help him with money.

38. The offender was arrested on 3 November 2016. He has been in custody since that date.

Objective seriousness

39. The Crown submitted that the offending was a very serious example of a very serious offence. The offender submitted that the offending lay at the lowest end of the scale of seriousness.

40. In R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365 Bellew J was sentencing offenders for an offence against s 106.1(6) of the Criminal Code being an offence of conspiring to do acts in preparation for a terrorist act. That offence carries a life sentence. Bellew J said at [25]:

Matters relevant to assessing the objective seriousness of offending of this nature will include:

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

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

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

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

The Crown submitted that these considerations were relevant to the offence under s 119.4 with which the offender is charged. Mr Anderson submitted that if I had regard to them (he did not submit that I should), they would tend to point to the low level of seriousness of the present offence.

41. In R v Alqudsi [2016] NSWSC 1227 Adamson J, when dealing with a predecessor of the present offence, said at [83]:

In assessing the relative seriousness of an offence under s 7 of the Act, the nature and extent of the services performed, the intention with which they were performed and their intended effect are all significant factors.

42. In my opinion, the offending is at a low level of seriousness. The following matters support that assessment:

• The offence criminalises (relevantly) “performing services” for any person in the circumstances set out in s 119.4(5). An examination of the phone calls demonstrates that it was only in the calls made between 25 May and 5 June that the offender performed any services. That consisted in the approach to Person 1, the reporting back to Elmir, the discussion with CP1, the advice to Elmir to download Telegram and that the offender would get him in contact with the brothers, the further advice to Elmir and, finally, when Elmir told him someone over in Turkey was going to organise things, the offer to help further if that did not work out. Nothing in the subsequent phone calls could be categorised as performing services. Significantly, after the conversation on 19 June at 1.17am when the offender said that he would get Elmir contacts if he was able to do so, there is no eveidence that he took any further steps to help. I do not accept the Crown’s submission that advice about getting a hotel, changing hotels, encouraging him to stay the distance and not return home, and otherwise suggesting that he take action in Turkey, falls within the section.

• No money or any other form of material assistance was provided. Indeed, the evidence was that, despite a request from Elmir that EB assist him to get hold of money he was expecting, EB did nothing about that request. When later asked by Elmir for money from the offender, the offender said he could not help him.

• The level of planning, research, complexity and sophistication of what the offender did was minimal, although I accept that he had immersed himself in extreme propaganda and similar material for some years. I accept also that he sought out Elmir rather than being sought out by him.

• Although the material found on the offender’s phones and his YouTube channel help to demonstrate the offender’s thinking and motivations for this offence, and even the s 16BA offence, that material does not aggravate the offence. Possession, downloading and uploading of such material, unlike child pornography for example, does not constitute an offence however morally repugnant the material is. I accept that the material demonstrates the extent of the offender’s radicalisation at the time of the offending, and that he had transmitted considerable quantities of this material to others including by his YouTube channel. There is, however, no evidence of this transmission to other than sympathetic fellow-travellers, and no evidence that he was intending to indoctrinate others.

• “Performing services” is a wide concept, embracing many possible acts. That is no doubt why the maximum penalty is life imprisonment. Those matters point to the need to make comparisons amongst acts that constitute the offence. Serious examples of “performing services” might involve recruiting persons (although I accept that there are separate offences of specified recruitment for foreign incursions in ss 119.6 and 119.7), supplying weapons, providing significant financial support, providing technical support or expert knowledge such as electronic, IT, chemical, counterfeiting or forging skills, or even organisational ability as in Alqudsi. The present case involves an entirely unskilled person making a number of phone calls to persons whom he thought might be able to provide a point of contact to facilitate Elmir’s passage to Syria, having undertaken the task himself and not as a result of any solicitation by Elmir, probably to big-note himself.

• While the delay in arresting and charging the offender does not, of itself, demonstrate the low level of the offending, it highlights the facts that the offending was complete and that there was no danger at that time to anyone or anything as a result of the offending. Elmir returned to Australia on 1 July 2016. Any further offending was adequately contained by the seizure of the offender’s passport and his ongoing surveillance.

Subjective matters

43. As noted earlier the s 16BA offence was committed when the offender had just turned 16 years of age. At the time of the principal offence he was aged 17. At the present time he is aged 19 years.

44. He was born in Australia to two parents of Turkish origin. He has a sister two to three years older than him and an older half-brother from an earlier relationship of his father. He had a happy upbringing and is close to both parents particularly his mother. He was raised as a Muslim. His parents’ faith was moderate and they did not enforce their beliefs or customs on their children. His parents have remained fully supportive of him. Indeed, they have indicated an intention to sell the family home to move to an area where there are fewer Muslims, and away from a cousin who lives next door. That cousin is being prosecuted for a foreign fighting offence and is a person with whom the offender previously associated but with whom he is not now permitted to associate.

45. The offender was interviewed over four days in November 2017 for the purpose of preparation of a pre-sentence report from Juvenile Justice. He also saw Dr Katie Seidler on 16 November 2017 for the preparation of a psychologist’s report. The offender gave evidence before me.

46. The offender attended Parramatta High School. He said that the school was predominantly attended by Muslim students and he was exposed to youths several years older than he was who were devoutly religious and committed to Islam. The offender had himself sought a closer connection with his religion from the age of about 12 or 13. The offender looked up to these students and sought to emulate their behaviour by learning about Islam. He was motivated by his desire to be part of a group. A number of these persons are now deceased due to engaging in activities overseas or are in the adult criminal justice system for terror related charges.

47. By year ten at school the offender said that his school engagement began to deteriorate seriously. He was suspended on a number of occasions. He left school part way through year ten but resumed in year 11. For a period of time he worked in some plumbing apprenticeships and undertook gyprocking and floor-laying.

48. By the time he was 15 or 16 years of age he had become deeply engrained in ever-increasing extremist Islamist thought and practice. Shortly before he was arrested at the airport, he had heard that a number of older students at his school had been arrested. When he did some research to find out why that was, he found out about foreign fighters for Islamic State and said he made an impulsive decision to go himself. It was in those circumstances that he arranged the cash card and purchased the ticket, all within a week of attempting to leave the country.

49. After he was released following the airport incident he resumed his education in year 11, in the course of which he was again exposed to older youths who were strict in their religious commitment. He looked up to these people in the belief that they would be good role models for him. He sought to emulate their commitment, behaviour and lifestyle. He was viewing Islamic State propaganda on a daily basis. He started to find the justifications offered online for extreme violence perpetrated by Islamic State as appealing. He saw it as protecting Muslims and felt he had a religious obligation to share Islamic State propaganda with other people. He had occasional contact with people online who were more closely connected to Islamic State and it was in those circumstances that he became aware of Mr Elmir.

50. With one not insignificant exception, what the offender told the Juvenile Justice officers and Dr Seidler accorded with the agreed statement of facts and the evidence he gave in Court. The one matter was that he told the Juvenile Justice officers that he did not know of the reasons Elmir would be in possession of the military equipment and that he did not encourage Elmir to engage in any hostile activities. That was contrary both to the statement of agreed facts and to the evidence he gave in Court.

51. He was challenged about that inconsistency by the Crown prosecutor. His explanation for the inconsistency was that there was a misunderstanding on the part of the Juvenile Justice officer because, he said, what he meant was that the only source of information the offender had that Elmir was going to engage in hostile activities was when he told the offender that he had military equipment. The offender said that up to that point he knew that Elmir had an intention, but it was when he was told about the military equipment that he actually knew Elmir was going to engage in hostile activities.

52. I do not find the offender’s explanation for the inconsistency satisfactory. I am not persuaded that there was a misunderstanding on the part of the Juvenile Justice officer. What the offender told Dr Seidler about his assistance to Mr Elmir tends to downplay his knowledge and understanding at the time he provided the assistance in the same way that appears in the Juvenile Justice report. It is to be remembered that Dr Seidler saw him for her report during the same month that he was interviewed for the Juvenile Justice report. He told Dr Seidler that he perceived an obligation to help Elmir and that he wanted Elmir to go to Syria because he believed that people would be better living under Sharia law. He said that what he did was to assist a person to travel into a conflict zone “without thinking about what would happen thereafter”. That seems to me to be also inconsistent with the agreed statement of facts and his evidence in Court, which was that he was anxious for Elmir to go to Syria to kill people and fight, and that it was his intention, when he tried to go to Turkey, to get to Syria to participate in hostilities.

53. The minimising of his role and motivations to Dr Seidler and the Juvenile Justice officer is perhaps a little puzzling when the offender frankly admitted in his evidence that his intention was to assist Elmir to get to Syria to engage in hostile activities and also that he encouraged him to do so. However, it causes me to scrutinise carefully his evidence of his change of heart concerning Islamic State and its supporters, because it suggests a lack of frankness to Dr Seidler and the Juvenile Justice officers.

54. His explanation, that he did not tell Dr Seidler that he knew about Elmir’s weaponry and that he was going into Syria for violent reasons because she did not ask him about it, is an ingenuous answer when he did tell her that he assisted Elmir without thinking about what would happen thereafter.

Remorse, rehabilitation and likelihood of reoffending

55. The offender gave evidence at the sentence hearing and was cross-examined extensively by the Crown prosecutor. I have read and re-read his evidence, and I have taken account of the contemporaneous notes I made about my impressions of him when he gave evidence. I have had regard to the submissions made by counsel, and particularly the Crown’s suggestion that I needed to look carefully at the offender’s evidence, and his statements to Dr Seidler, to assess whether it was carefully put together for the sentence proceedings to put himself in the best light.

56. Allowing for the fact that he may have been nervous to some extent whilst in the witness box, the offender appeared to me to be a young man who still has some anger issues but who has made significant progress in that regard. I consider that he was genuinely remorseful for what he had done and that his emotional reaction in the witness box, when being asked about watching the Islamic State videos, was not contrived. To some extent I thought that he was embarrassed by his own immaturity in having become involved in and obsessed with the radical material and lifestyle.

55. I believe him when he says that going into custody at Cobham was one of the best things that happened to him, because of what he has learnt there about himself and other people. He said that this was because in custody he has met people from different religions, backgrounds and races. He has connected with these people, and the psychology sessions in which he has particpated have been a considerable help to him.

56. However, his time in custody on remand has not been without its own problems. There have been a number of incidents, one of which involved an altercation between the offender and a youth officer at the Centre that led to an enquiry and a report which ultimately exonerated the officer.

57. This incident took place on 27 April 2017. It arose from a request by a youth officer for the offender to remove a number of chip packets stuck on the wall of his room. The offender engaged in abuse of staff, first over the intercom from the offender’s room, and then in person towards one officer in particular whilst others were present. The offender admitted to saying to the officer: “fuck you Aussie dog, fuck you digger dog” and words to the effect that the offender and his “boys” were going to get him on the outside. The offender said that this was said in response to the officer calling him a terrorist dog. He denied saying that he would behead the officer and shake his lifeless body.

58. A great deal of time was taken up with evidence about this incident to prove all that the offender was alleged to have said. In my opinion, the concentration on this matter was out of all proportion to its significance for sentencing purposes. The contemporaneous reports suggest that the offender did say what he denied, but I do not conclude from that fact that the offender was lying about what happened. It certainly shows that he was a very angry young man and, as the latest re-classification assessment suggests, somewhat volatile. It appears that the incidents at the Centre involving the offender’s misbehaviour are likely to have stemmed from anger management problems that he admits to having and for which he has been receiving some assistance whilst in custody.

59. However, apart from a minor infraction in November 2017, the incident of April 2017 is the last issue the offender has been involved in whilst in custody. All the reports about him since that time are positive about him. His latest reclassification application, which recommends that he be reclassified to Medium B1, says that his response to custody in the past three months has overall been positive, that he interacts with staff and his peers without any issue, that his participation in programs has been positive, that he displays respectful behaviour towards staff as well as external program providers, that his school report illustrates a mature student who has an excellent rapport with teaching staff, and that overall his behaviour has continued to improve.

60. The report says that he has the potential to be volatile as evidenced in the incident of 27 April 2017. Whilst he may not yet be a reformed individual, the evidence and my assessment of him suggests that he is well on the way and is continuing to make good progress.

61. Both the Juvenile Justice report and Dr Seidler considered that the offender had some insight into his offending and its effect on himself, his family and other people, as well as insight into the need to separate himself from certain people whom he had tried to please and gain acceptance from by expressing the views he did and acting upon them. That insight was demonstrated when he was asked by his counsel why he wanted to avoid the people that he had previously mixed with, and he said:

I know that ideology can slowly slowly creep back into my mind as much as I try to avoid it. So that’s why I am not going to hang around these people anymore.

64. Although the Crown emphasised to Dr Seidler that her report was dependent only on what the offender told her, and in some sense a similar observation could be made about the Juvenile Justice report, some weight must be given to the expertise of both Dr Seidler and the caseworkers who prepared the Juvenile Justice report, who expressed opinions based on that expertise about the offender and any change in his views and outlook.

65. There was evidence from a Mr Kuranda Seyit who in 2004 established an organisation called the Forum on Australia’s Islamic Relations (FAIR). FAIR does not hold itself out to be a de-radicalisation program but is focused upon building practical mentor relationships with strong role models to assist young men to break away from any poor associations they may have formed. It provides pathways for young Muslim men to create new social networks, new religious networks and new visions for how they perceive the careers and lives that lie ahead of them. FAIR receives funding from the government from time to time for its work but it also operates by volunteers including Mr Seyit.

66. Mr Seyit, who is now a high school teacher in Melbourne, described what FAIR does as mentoring. Mr Seyit’s teaching job includes running leadership and personal development programs. The FAIR program does not operate within the prison system but the offender contacted Mr Seyit after having spoken with Mr Mehcur to express interest in going into the program when he is released from custody. Mr Seyit said he would accept the offender formally into the program when he is released. Mr Seyit said he found the offender to be receptive to ideas that may help reshape his life. The offender had indicated that he needed assistance in forging a new circle of associates. Yusuf Mehcur, a voluntary youth worker with FAIR, had two meetings with the offender where the offender’s parents were in attendance, and subsequently nine telephone sessions with him.

67. I consider that the contact that the offender has had with Mr Mehcur and Mr Seyit is a positive matter that indicates he is someway along the road to rehabilitation, and it is likely to minimise his risk of re-offending.

68. In her report Dr Seidler attempted to assess the offender’s risk of re-offending in relation to terrorist activity. She considered him to be a low to moderate risk of future terrorist activity. However, Dr Seidler frankly accepted that in the area of terrorism there are no developed risk assessment protocols based on actuarial studies. That seems to be principally because of the limited number of persons who have been assessed since the rise in terrorist criminal activity, and the absence of a long enough period to assess the relevant factors that can be identified. She accepted that violent offender tools will not be able to distinguish accurately between those who are likely to commit a terrorist act and those who are not. With no disrespect to Dr Seidler, I do not think I can place much weight on her assessment of the risk the offender is likely to present. It can, however, be said that the matters I have earlier discussed are positive indications in relation to the future risk of re-offending. Dr Seidler identified a number of these matters also.

69. The Crown submitted that a number of the cases show that the subjective circumstances of the offender are necessarily given less weight because the emphasis is on the protection of the community, the punishment of the offender, denunciation of the offence, and on deterrence. Those matters have been stated in cases which have concerned terrorism directed to the Australian community. The Crown submitted that similar principles should apply because offences under s 119.4 are similarly designed to protect society from an increased risk of terrorist offences occurring. In the same way, the Crown submitted that youth and previous good character should carry little weight.

70. It may be accepted that both the principal offence and the s 16BA offence now appear in the Criminal Code in the chapter concerned with the security of the Commonwealth, and they are defined in the Crimes Act as terrorism offences. They also carry the most severe penalty that Australian law knows. However, the offences here are foreign incursion offences. Whilst accepting what appears in the Explanatory Memorandum that resulted in these offences being placed into the Criminal Code in 2014, namely, the threat from foreign fighters returning to Australia with enhanced terrorism capabilities and ideological commitment, the present offending does not involve terrorism in Australia. It involves, rather, preparatory acts associated with foreign incursion. Some weight must be given to youth and personal circumstances.

71. In DPP (Cth) v MHK [2017] VSCA 157 the Court said at [56]:

In the present case, the respondent was only 17 years of age at the time of the offending. Ordinarily, and in general, the youth of an offender is an important mitigating circumstance. It is relevant to an assessment of the moral culpability of the offender, as the law recognises that the immaturity and impressionability of youth may be, and commonly is, an important contributing factor to the involvement of a young offender in the crime for which that offender is to be sentenced. [DPP v SJK & GAS [2002] VSCA 131 at [61]] In addition, the law regards the rehabilitation of young offenders of substantial, if not primary, importance, not only in the interests of the offender, but also in the interests of the community. [R v Mills [1998] 4 VR 235 at 241]

72. The Court went on to say at [57] that those principles needed to be appropriately moderated where the offender was engaged in serious and dangerous offending.

73. Where the acts done in the present offending were as preparatory and relatively minor as I have found them to be, it would be a mistake to place little weight on the progress to this point of the offender’s reappraisal of his behaviour and ideas, and the steps taken towards rehabilitation.

Deterrence

74. I accept that statements made in cases involving the commission of terrorist acts, for example R v Lodhi (2006) 199 FLR 364 at [91] – [92], that denunciation and deterrence play a substantial role in the sentencing process, are applicable to foreign incursion offences such as the ones under consideration here. I reject the submission on behalf of the offender that his relative youth makes both specific and general deterrence of less significance. Experience is showing that young men, in particular, often in their teens, are being radicalised and are engaging in this type of offending. They need to understand that it will almost inevitably lead to prison sentences being imposed and, for serious examples of offending, lengthy prison sentences as a result of the increase in the maximum penalty for many of these offences. Both specific and general deterrence are significant matters for the present offending.

The plea

75. The offender was arrested on 3 November 2016. He waived a committal and was committed to this Court for trial on 19 June 2017. Prior to a trial date being set he pleaded guilty on 6 October 2017. There had been discussions towards a guilty plea since the matter was first mentioned in the arraignment list in this Court on 4 August 2017. I consider that there should be a discount of 25% for the utilitarian value of the plea. I accept that the Crown case was a strong one but the saving of a two to three week trial at that early time should be appropriately recognised by such a discount.

The sentence

76. What seems tolerably clear to me is that the offender needs an extended period on parole or subject to a recognisance so that his de-radicalisation (for want of a better word) can be successfully completed. However, in the circumstances of this offence and this offender, that is not possible. The present offence is a terrorism offence because it is an offence against Pt 5.5 of the Criminal Code. In those circumstances s 19AG of the Crimes Act applies and requires the Court to fix a single non-parole period of at least three quarters of the sentence. To fix a parole period that might be appropriate to further the offender’s rehabilitation would necessitate the imposition of a sentence of a severity entirely inappropriate to the circumstances of the offence, contrary to s 16A(1) of the Crimes Act and to what the High Court said in Hoare v The Queen (1989) 167 CLR 348 at 354. The effect of the inflexibility of s 19AG in the present case is that it is likely the offender will be at large in the community unsupervised when he would benefit from the further assistance that Community Corrections could provide.

77. I am satisfied, however, that no other sentence than a sentence of imprisonment is appropriate in all of the circumstances of the case. The maximum sentence for the offence under consideration attests to the extreme seriousness of the offence itself. Although I have determined that the objective seriousness of the offending is at a low level, it would require an extremely minor infraction of the section for a sentence of imprisonment not to be appropriate.

78. Further, I am required to take into account an offence of similar seriousness where the offender attempted to leave Australia with a view ultimately to crossing into Syria himself to engage in hostilities. The seriousness of that offending is tempered only by his relative youth at the time of the commission of the offence, and the fact that, as overseas trips go, the decision was a relatively impulsive one. Given that the maximum penalty for that offence is also imprisonment for life, unless the preparatory act was extremely minor, it is also difficult to envisage the commission of such an offence which would not result in a sentence of imprisonment.

79. Taking the s 16BA offence into account I consider that the appropriate starting point for the sentence is a period of three years imprisonment. Applying the 25% discount for the guilty plea, the sentence is one of two years three months with a non-parole period of one year eight months and one week. Ordinarily that period would be rounded down but s 19AG is a prescriptive provision that does not allow for that approach. Rounding up would have the undesirable effect of reducing the period on parole.

Where should the sentence be served?

80. Section 19 of the Children (Criminal Proceedings) Act 1987 (NSW) relevantly provides:

19 Court may direct imprisonment to be served as a juvenile offender

(1)   If a court sentences a person under 21 years of age to whom this Division applies to imprisonment in respect of an indictable offence, the court may, subject to this section, make an order directing that the whole or any part of the term of the sentence of imprisonment be served as a juvenile offender.

Note.

The effect of such an order is that the person to whom the order relates will be committed to a detention centre (see subsection (6)). There he or she will be detained as specified in the order. In certain circumstances, he or she may subsequently be transferred to a correctional centre pursuant to an order under section 28 of the Children (Detention Centres) Act 1987.

(1A)   In the case of a person of or above the age of 18 years who is serving, or has previously served, the whole or any part of a term of imprisonment in a correctional centre, such an order may not be made unless the court decides that there are special circumstances justifying detention of the person as a juvenile offender.

(2)   …

(3)   A person who is sentenced to imprisonment in respect of a serious children’s indictable offence is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 18 years, unless:

(a)   the sentencing court is satisfied that there are special circumstances justifying detention of the person as a juvenile offender after that age, or

(b)   in the case of a sentence for which a non-parole period has been set - the non-parole period will end within 6 months after the person has attained that age, or

(c)   in the case of a sentence for which a non-parole period has not been set - the term of the sentence of imprisonment will end within 6 months after the person has attained that age.

This subsection is subject to subsection (2).

(4)   A finding of special circumstances for the purposes of subsection (1A) or (3) may be made on one or more of the following grounds, and not otherwise:

(a)   that the person is vulnerable on account of illness or disability (within the meaning of the Anti-Discrimination Act 1977),

(b)   that the only available educational, vocational training or therapeutic programs that are suitable to the person’s needs are those available in detention centres,

(c)   that, if the person were committed to a correctional centre, there would be an unacceptable risk of the person suffering physical or psychological harm, whether due to the nature of the person’s offence, any assistance given by the person in the prosecution of other persons or otherwise.

(4A)   In particular, a finding of special circumstances may not be made simply because of the person’s youth or simply because the non-parole period of the person’s sentence will expire while the person is still eligible to serve the sentence as a juvenile offender.

(4B)   A court that makes a finding of special circumstances must make a record of its reasons for making that finding in the particular case.

(5)   …

(6) The warrant of commitment that is issued under section 62 of the Crimes (Sentencing Procedure) Act 1999 in relation to a sentence of imprisonment the subject of an order under this section:

(a)   must indicate that the sentence is the subject of such an order, and

(b)   must specify how much of the sentence is to be served as a juvenile offender, and

(c)   must, despite the provisions of that section, commit the person to whom it relates to a detention centre.

…

81. As noted earlier, the offender was born on 8 January 1999 and will turn 21 years on 8 January 2020. He is now aged 19 years. The effect of s 19 is that he will serve the balance of any sentence ordered in an adult prison unless a finding of special circumstances in accordance with sub-s (4) is found. Such a finding may not be made simply because of the offender’s youth.

82. There do not appear to be any cases that consider the meaning of the words “unacceptable risk” in this Act. It would not be appropriate to have regard to the meaning of those words in different legislation because of the different contexts where those words appear such as in the Bail Act 2013 (NSW) or the Crimes (High Risk Offenders) Act 2006 (NSW), as Beazley P said in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50], and see Basten JA at [132].

83. I accept the Crown’s submission that in determining whether there is an unacceptable risk of the offender suffering (here) psychological harm, the Court can take into account the following factors being:

(i)   The nature of the risk;

(ii)   The likelihood of the risk coming to fruition; and

(iii)   The seriousness of the consequences if the risk does come to fruition.

84. There was evidence from Dr Anne Martin, the Assistant Commissioner of Corrective Services responsible for Offender Management and Programs. She gave evidence regarding the classification and possible designation and placement of the offender. She said that a conviction for an offence contrary to s 119.4(5) of the Criminal Code may but not necessarily lead the offender to be given a category AA classification. If he was given that classification he would be considered a “serious offender”. If the offender was given such a classification and was required to serve his sentence in an adult facility she said, “He would most likely be placed within the High Risk Management Correctional Centre” which is a purpose-built maximum security facility for male offenders and is situated within the Goulburn Correctional Complex. She said that although that was highly likely it was not an inevitable outcome.

85. A subsequent email from the Commonwealth DPP, in answer to an inquiry about how many inmates who have posed a threat to national security being housed other than in the HRMCC, disclosed that as at 1 February 2018 there were 50 prisoners housed in the HRMCC. Of those 25 were terrorists and six were foreign fighters. The remaining 19 prisoners were there for non-national security offences. It also disclosed that, apart from prisoners being held elsewhere for short periods because of health reasons or otherwise, only two women prisoners of concern to national security were housed elsewhere.

84. In those circumstances, and in circumstances where the offender has been classified as A1(O) throughout his stay within Cobham principally because of the nature of the offence despite recommendations for a reduction, I find the likelihood of the offender being classified AA after sentence as being high.

85. Dr Martin says there are no known effective “de-radicalisation” programs in Australia. However, a disengagement service focusing on encouraging and supporting pro-social moderate behaviour, known as Proactive Integrated Support Model (PRISM) is operating within prisons in New South Wales. Some further information was provided by Mr Barracosa, the Acting Senior Psychologist for PRISM. It seems likely, however, that the present arrangements involving telephone contact and counselling with FAIR would not be available at HRMCC.

86. In the Juvenile Justice Report the following appears:

[EB] does not identify that his peers were a contributing factor to his offence or his development in his faith. Whilst he continues to hold this view, he however stated that he believes he is “easily influenced” and susceptible to peers with religious views that may be deemed antisocial. [EB] stated that he holds concerns for himself being in adult custody as he feels he would be vulnerable to those with antisocial religious views. [EB] expressed not wanting to return to those beliefs as he feels he has made progress in juvenile custody.

The young person acknowledged that he must disassociate (sic) from this peer group in order to reduce his risk of engaging in religious values that may be deemed antisocial and detailed wanting to disengage from this peer group upon his return to the community.

89. In Dr Seidler’s report, in taking a history from the offender, Dr Seidler said this:

[EB] acknowledged that he drifted away from the aforementioned prosocial peers after he left high school and it was at this time that he became more involved in a strictly religious group of peers, which will be discussed in more detail below, as this set the scene for his offending behaviour. [EB] noted that the majority of these friends were two to three years his senior and although he misses these people since being in custody, [EB] acknowledged that he needs to maintain a distance from them because they are not a good influence on him.

90. Dr Seidler also said:

Whilst [EB] claimed to know many of the offenders incarcerated in the High Risk Management Unit [at Goulburn Correctional Centre] for terrorism related offences, he is concerned that these people will impact on his thinking and [EB] commented that he does not ‘want to leave here (custody) with the same mentality (he) came in with’.

91. Dr Seidler also noted that EB told her that in a sense he had been brainwashed, that he had become addicted to viewing Islamic State propaganda on a daily basis, and that his dependence on it was strong like being addicted to a drug. Dr Seidler thought that EB had some insight into the motivation for what he had done (the desire to emulate older people to whom he looked up) and expressed the desire actively to separate from those people due to the negative influence that they have had on him.

92. Dr Seidler, whilst acknowledging the seriousness of the offender’s behaviour, respectfully recommended that the Court consider the issue of the offender serving time in an adult correctional facility, particularly the HRMCC because he would be housed with older and more radicalised offenders. She said this would no doubt exacerbate his risk and make his rehabilitation and reintegration into the community more challenging.

93. In his evidence in court he gave this evidence:

Q. How do you think you would cope if you had to serve part of your sentence in an adult gaol?

A. I really hope that doesn't happens because it would be a disaster for me.

Q. Why do you say that?

A. Because I don't want to be mixing with older boys that are much higher risk, and offenders, and I'd potentially fall back into the group of friends that are somewhat radicalized, and I worry that it could slowly creep back into me, you know. And I don't want to ever be around those people again in my life.

Q. And is that attitude something that you are going to continue on release?

A. Yes.

Q. And why do you want to avoid those people?

A. Because as much as I believe I've changed, and I know I've changed, but if I'm hanging around those people every day, then, I know, like, because from before, I was just a normal kid. I know that ideology can slowly slowly creep back into my mind as much as I try to avoid it. So that's why I'm not going to hang around these people any more.

94. In circumstances where I find that:

(a)   it is likely the offender will be classified category AA when sentenced;

(b)   it is highly likely he will be transferred to HRMCC with that classification;

(c)   a significant proportion of prisoners at HRMCC, about 60%, have been convicted of terrorism and foreign incursion offences and are or were likely to hold radical views such as the offender held;

(d)   the offender knows a number of the people incarcerated at HRMCC;

(e)   he was radicalised in a way that involved a form of brainwashing;

(f)   there is support for the view that the offender’s need to view Islamic State propaganda and similar material was addictive;

(g)   the offender has insight into his past behaviour and beliefs and has made some progress to reassess his thinking and approach to his religion and his support for radical ideas and action;

(h)   the offender genuinely holds fears that he could be influenced again towards radical ideas and influence if in the company of others continuing to hold such ideas;

I consider that there would be an unacceptable risk of the offender suffering psychological harm in the form of re-radicalisation if he was not detained as a juvenile offender. There are, therefore, special circumstances justifying the offender’s detention as a juvenile offender.

Orders

95. For the offence contrary to s 119.4(5) of the Criminal Code of intentionally performing services for Amin Elmir with the intention of supporting the commission by him of an offence against s 119.1, and taking into account the offence contrary to s 119.4(1) of the Criminal Code of committing acts in preparation for incursions into a foreign country for the purpose of engaging in hostile activities, I sentence you to a term of imprisonment for two years and three months commencing 3 November 2016 and expiring 2 February 2019 with a non-parole period of one year eight months and one week expiring 9 July 2018.

96. The sentence I impose is the subject of an order under s 19 of the Children (Criminal Proceedings) Act 1987. The whole of the sentence is to be served as a juvenile offender.

97. Pursuant to s 105A.23 of the Criminal Code, I warn you that an application may be made under Division 105A of the Code for a continuing detention order requiring you to be detained in a prison after the end of your sentence.

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Amendments

02 March 2018 - Typographical error on cover page

02 March 2018 - Typographical error in para [93] corrected.

05 February 2019 - Non-publication order removed.

Decision last updated: 05 February 2019