R v El Matari

[2021] NSWSC 1260

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v El Matari [2021] NSWSC 1260

Hearing dates:

31 August 2021

Date of orders:

11 October 2021

Decision date:

11 October 2021

Jurisdiction:

Common Law - Criminal

Before:

Garling J

Decision:

See [112]

Catchwords:

CRIME – Terrorism Offences – Doing an act in planning or preparation for a terrorist attack – Engaging in conduct preparatory to committing foreign incursion offence – objective seriousness towards low range – relatively young offender – aggregate sentence imposed

Legislation Cited:

Criminal Code Act

Crimes Act 1914 (Cth)

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Sentence

Parties:

The Crown
Isaac El Matari (Offender)

Representation:

Counsel:
S Callan SC / G Westgarth (Crown)
M Johnston SC (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Hugo Law Group (Offender)

File Number(s):

2019/206285

Publication restriction:

Not Applicable

REMARKS ON SENTENCE

1. Early on the morning of 2 July 2019, Isaac El Matari (“the Offender”) was arrested at his home at Greenacre.

2. Ultimately, he was charged with these three offences:

1. the first offence is one contrary to s 101.6(1) of the Criminal Code (“the Code”) of doing an act in preparation for, or planning of, terrorist acts between July 2018 and 20 September 2019. The acts were described as “… attacks in Australia on behalf of Islamic State” (“the terrorism offence”);

2. the second offence is one contrary to s 119.4(1) of the Code of preparing to engage in the commission of an offence against s.119.1 of the Code between January 2019 and July 2019. The offence was described as “… the offender being at the time an Australian citizen, intentionally engaged in conduct intending that the conduct was preparatory to the commission of an offence under s 119.1, namely entering Afghanistan via Pakistan with the intention of engaging in hostile activity in that or any other foreign country” (“the foreign incursion offence”); and

3. the third offence is one contrary to s 102.3(1) of the Code namely that the offender was knowingly a member of a terrorist organisation between January 2019 and September 2019. The terrorist organisation is identified as the Islamic State (“the membership offence”).

3. In the Local Court, after some negotiations, the Offender indicated he would plead guilty to the first two offences, and that he would admit the third offence on the basis that it was taken into account on sentencing for the terrorism offence pursuant to s 16BA of the Crimes Act 1914 (Cth) (“the Act”).

4. The Offender appeared for sentence before me on 31 August 2021. He maintained the pleas of guilty which had been announced in the Local Court and maintained his admission to the third offence on the basis that it was to be taken into account on sentence for the first offence.

The Terrorism Offence

5. It is to be observed that in this offence the Offender is charged that he did acts in preparation for, or planning of, terrorist acts.

6. A terrorist act is an act which is intended to, and does, cause serious harm or damage to a person, property or the public and which is designed to advance a political, religious or ideological cause by intimidating or coercing the government or intimidating the public or a section of the public: s 100.1 of the Code.

7. This offence carries a maximum penalty of life imprisonment. This maximum penalty is a guidepost to which regard is to be had on sentence.

8. In circumstances which will later be described, the Offender returned from Lebanon to Australia in June 2018. The Offender has admitted facts which show that he had engaged in a number of communications and other activities (including rehearsing speeches which he might give) - all of which reflect preparations for and planning to conduct attacks in Australia on behalf of the Islamic State (“IS”) and to establish an IS insurgency in Australia.

9. It is appropriate to recount some, but not all, of the Agreed Facts in order to describe the central features of this first offence in which the Offender engaged. The Agreed Facts are contained in an annexure to these Remarks on Sentence. Careful attention has been paid to the entirety of them.

10. On two occasions in March 2019, the Offender visited a hunting and technical supplies store in St Marys. The store specialises in sports shooting, hunting, security and tactical equipment and accessories. On the first occasion, the Offender browsed the store’s offerings, looking at binoculars and ammunition. On the second occasion, the Offender purchased a cream-coloured tactical vest which he took home, folded and placed in a suitcase. He later removed it from the suitcase and tried it on whilst in his apartment. He then wore the vest into the public areas outside his apartment - this was for a relatively short period of time. These facts are also relevant to the foreign incursion offence.

11. Over the next six months or so, the Offender had a number of conversations with people in which he enquired as to how he might go about purchasing firearms; the purchase of ammunition; discussing tactical clothing which he had purchased and which would enable firearms to be kept in a concealed way; he had enquired about the purchase of explosive material described as “TNT” (Trinitrotoluene) and the identification of a possible target in Australia described as a “military barracks”.

12. On 30 May 2019, the Offender married Eryn Riordan in an Islamic ceremony. In the following month, the Offender had two conversations with Ms Riordan. In the first of them he discussed with her the importation of weapons, being assault rifles, into Australia and the sale of them at an exorbitant rate. He also discussed with her his view that if the supporters of IS in Australia had been focussed between 2014 and 2019 it would have been possible for them to have conquered a small town or village or even the city of Orange.

13. In the course of 2019, there were two particular conversations recorded on a surveillance device which are of significance. In the first of these conversations on 2 May 2019 with an associate “G”, whose whereabouts are unknown, the Offender described his preparations to establish an IS insurgency in Australia. His remarks included that he had used an encrypted number to make contact with some individuals in Lebanon to facilitate the sending of firearms to Australia “… so that the brothers would start a STATE out in the bush here like the boys in Marawi did”. Marawi is a city in the Philippines. Included in that conversation was the use of the following words “… every bush in Australia, every forest in Australia, neighbours a body of water and every body of water passes through a major city which means we could have taken advantage of the geographical landscape and I even had a brother that used to be part of the Tongan Special Forces that was willing to train the brothers”. At the time of those conversations, the Offender was in his apartment in Sydney.

14. The Offender told G that he wanted to talk to his Muslim brothers in Indonesia to facilitate a three-way arrangement with fellow adherents in Lebanon to facilitate the importation of firearms into Australia to be used by his “brothers” to do strike attacks. He also talked about sending followers to Lebanon to be trained.

15. The Offender’s connection to and support for IS was made plain during this conversation when he told G that he proposed to make contact with “brothers” inside a prison in Lebanon to get authorisation to try and publish a video of his pledge of allegiance to IS. Later in the conversation, the Offender lamented to G that he could not get any support for his plans in Australia. He said that he thought that IS supporters in Australia were cowards and not truly committed supporters.

16. He described his past plans, which did not gain any support, in very general terms and went on to discuss how publicity could be enhanced by the choice of a particular target or type of target.

17. He went on to say this about his plans:

“… I know how to convey a political message. … I know what targets will make people scared and what targets will make people aware and targets will convey our message. How we will get our call answered. How to, … convince people and persuade them that we are correct by attacking particular things and doing particular things.”

18. The second conversation of significance occurred on 22 May 2019, about three weeks before the Offender’s arrest. It was with an associate, “H”. The conversation was recorded on a surveillance device. It is not known where H was at the time of the conversation. The Offender again described in somewhat vague terms how acts of terrorism could be carried out in Australia. He claimed that there were about a thousand males in Australia who were followers of IS. The Offender is heard to tell H about how attacks on public places with little or no security, which he identified, would send political messages.

19. In this conversation he also threatened to blow himself up to obtain publicity.

20. After the Offender was arrested, and whilst he was in custody at the High Risk Management Correctional Centre (“HRMCC”), on 20 September 2019, members of the NSW Police Force conducted a search of an inmate’s cell adjacent to the cell in which the Offender was being held. They found a three-page letter written by the Offender to his fellow inmate.

21. That letter, which the prosecution described as the most significant fact relied upon by it to demonstrate the extent of the terrorism offence, includes the following:

“Australia’s unique population distribution as well as its geographical dynamics leave it vulnerable to insurgent threat. This is abetted by its wide landscape and the unpredictable transition from urban jungle into unchartered woodlands as well as the unbaring (sic) proximity that large civilian populations have to charterable estuarine bodies of water.

In regards to what I regard as the most effective form of activity militancy, then I have a secondary suggestion that is composite of both hijrah [sic] and operations. It has been trialed [sic] by holy fighters all around the muslim [sic] world and has proven successful. The brothers in the Caucus have the used the method that I am going to mention, as have the brothers in the Philippines and they have achieved great success. My suggestion is the establishment of a small enclosed battalion to exploit the landscape, taking to remote regional areas to plan the orchestration of attacks, whilst cells living amongst the civilian population finance, recruit and resupply the mujahideen through strict, well regulated agreed upon protocols to avoid arousing the suspicion of the authorities. The cells also regulate direct communication with senior command overseas as well as media/audio visual publications. This allows attacks to be orchestrated undetected, whilst maintaining and asserting the presence of a jihadist identity.”

22. After describing a large number of individuals by name and position with whom the Offender says that he is either friendly or with whom he has contact, the letter goes on to say this:

“I had to mention all of this so you can understand what I can/can’t facilitate. It’s also worth mentioning that if I were outside, I could facilitate for the purchase of a wide range of firearms, munitions and explosives (from Lebanon) as well as bomb manufacturing and suicide vest manufacture and training (Lebanon/Pakistan). I can also facilitate for the purchase of pre-made ones. I can also facilitate for the purchase of false documents, ranging from degrees to passports (Lebanon/Greece/Turkey). I can also facilitate for border crossings between several different countries, both for free and/or for a monetary fee depending on the country.”

23. Whilst this letter was written by the Offender and given to his fellow inmate, there is no evidence which suggests that it was, or was intended to be, distributed to a wider audience.

Foreign Incursion Offence

24. This offence is one in which the Offender is charged with engaging in conduct preparatory to leaving Australia in order to go to Afghanistan via Pakistan with the intention of engaging in hostile activity in Afghanistan or any other foreign country.

25. This offence also carries a maximum penalty of life imprisonment. This maximum penalty is to be regarded as a guidepost on sentencing.

26. The relevant facts commence on 15 January 2019, when the Offender attended the Pakistani Consulate in Sydney. He made approaches to other Consulates on the same day. A couple of weeks later, the Offender discussed with an associate the reason he proposed to give to justify his travel. A few days afterwards, he asked another associate to source pieces of traditional Pakistani clothing.

27. Over the next few months, the Offender had a number of discussions with various associates regarding the situation in Pakistan, and other steps that might be appropriate for him to take for his proposed trip.

28. When the Offender discovered that the application which he had made for a passport was problematic because the address on his driver’s licence was not the same as the address he had given on that application, he decided he would change the address on his driver’s licence and submit a fresh application. On 20 February 2019, the Offender made contact with the NSW Roads and Maritime Services and changed the address on his licence.

29. On 3 March 2019, the Offender spoke to a friend whose whereabouts are unknown but who was using an Australian telephone number, and said to him “My dad says that he refuses to fund me, he said to me ‘you already tried to do terrorism things and now you want to do even more terrorism stuff? … Haven’t you had enough?’ ”.

30. On 4 March 2019, the Offender went to the hunting and technical supplies store in St Marys. As has earlier been recounted in [10], the Offender purchased a tactical hunting vest and packed it in a suitcase, apparently to take to Afghanistan.

31. Thereafter, on a number of occasions by telephone, the Offender made enquiries about how he might get to Khorasan, a province of Afghanistan, through Pakistan and what arrangements could be made to enable that to happen. In the course of other conversations, he expressed his desire to spend the rest of his life on the front lines and on the fortified guard points on the front lines. Those conversations clearly indicated a devotion to his Islamic faith, but an extreme version of it.

32. On one occasion, the Offender was heard in his apartment practising the delivery of a speech that he might make once he reached Afghanistan. Whilst this is not said to be an act constituting this offence, it does provide clear evidence of the Offender’s intention to go to Afghanistan and fight there.

33. During March 2019, the Offender packed a large black suitcase with clothes and his tactical vest. He had discussions with an associate about how best to go about the timing of obtaining a passport and leaving Australia prior to being detected. On 11 March 2019, the Offender attended the Pakistan Consulate in Sydney and then attended at a travel agency in the Sydney CBD and received quotes for flights to and from Islamabad in Pakistan departing on 10 June 2019.

34. In further conversations with associates, the Offender made plain his intention to travel to Pakistan for the purpose of going into Khorasan province in Afghanistan where the IS was operating.

35. On a further occasion, in March 2019, the Offender had a conversation with an unidentified male who confirmed that he was currently then in Khorasan province in Afghanistan. The Offender enquired of that person how he might go about entering Afghanistan and travelling to Khorasan province.

36. The Offender had a series of other conversations attempting to make various arrangements for his travel, how he might arm himself whilst in Khorasan province, and discussing how he might ensure that his travel to Pakistan was not interrupted. He took delivery of some clothing from Pakistan, which he had obviously earlier ordered.

37. In late April 2019, the Offender submitted his passport application and on the same day advised the Australian Federal Police that he wished to travel overseas for study purposes in August.

38. On 12 May 2019, the Offender attended at a travel agent at Penrith where he booked and paid (in cash) for return flights from Sydney to Islamabad in Pakistan. About a week later, the Offender collected his passport from a local post office.

39. It has been noted above at [12] that the Offender married on 30 May 2019. At the end of May the Offender had a conversation with a friend in a car in Sydney in which he told his friend that his marriage was “an alibi” because he needed “… something to make it look like I’m going to come back …”. He also told his friend that a route had been organised for him once he arrived in Pakistan and that he was waiting (in order to make a visa application) for a fake acceptance letter for him to study in a seminary in Pakistan.

40. In June 2019, the Offender and his wife had a conversation in which he said words to the effect that he would be the first Australian to have a link with the IS in Khorasan province.

41. After his arrest, as a consequence of a search warrant executed at his premises, the investigators found a black suitcase packed with various items of clothing, a flight itinerary and a black bag containing passports, identification cards and documents, a Pakistan Visa Grant Notice in the Offender’s name, and various items of clothing of a kind associated with adherence to the Islamic faith.

Membership Offence

42. The third offence, which the Offender asks to be taken into account on sentence for the terrorism offence, is one of membership of IS contrary to s 102.3(1) of the Criminal Code. His membership is agreed in the Facts to have been between about 1 January 2019 and 20 September 2019.

43. This offence carries a maximum penalty of 10 years imprisonment.

44. By way of background to that offence, it is noted that the Offender was previously arrested in Lebanon in 2017 for attempting to join IS in Syria.

45. On 18 March 2019, the Offender was heard to confirm his intention to pledge allegiance to the leader of IS, Abu Bakr Al-Baghdadi.

46. The Offender identified himself as “the General Commander for the Australia State”.

47. The Offender also told his wife of his membership of IS, saying that in Australia “… we make up at least a thousand boys of DAWLA State”.

48. As well, the conduct in which the Offender engaged to attempt to leave Australia demonstrated his allegiance to the ideas of IS and its entire philosophy.

Seriousness of Offences

49. The Crown submitted that the terrorism offence fell within the mid-range of the conduct contemplated by an offence against s 101.6(1) of the Criminal Code. The Crown points to the following facts as leading to that assessment:

1. the acts took place over a period of nine months and continued after the offender was arrested. That continuous course of action meant that the Offender’s conduct could not be regarded as isolated or opportunistic;

2. while the Offender appeared to be in the early days of planning a terrorist attack, he took steps to put his insurgency plans into action, including making enquiries about obtaining explosive material and firearms, and purchasing military clothing;

3. the Offender identified specific targets of attack, including Australian public institutions where a large number of people could be harmed by any such attack. The Crown points to the fact that the Offender had obviously done some research about possible targets;

4. after his arrest in September 2019, the Offender was not deterred and wrote about his plans for an insurgency in the letter to his fellow inmate, which included offering assistance if either or both of them were not in custody. In particular, the Crown pointed to the fact that with this letter, the Offender was seeking to educate and motivate his fellow inmate to carry out his plan; and finally

1. the Crown drew attention to the membership offence which is to be taken into account on sentence for the terrorism offence.

50. With respect to the foreign incursion offence, the Crown submitted that the Offender’s conduct ought be characterised as within the mid to high range for such conduct as is contemplated by an offence against s 119.4(1) of the Criminal Code.

51. In support of that submission, the Crown pointed to the following:

1. that preparations were made to travel to Pakistan over a period of seven months, and that the purpose of that travel was to engage in hostile activities with IS in Khorasan province. The Crown pointed to the fact that the offending was neither opportunistic nor isolated, but involved a continuous course of action over a lengthy period;

2. the Offender’s plans to travel to Afghanistan involved a level of complexity and sophistication in order to avoid detection by law enforcement agencies;

3. the Offender made enquiries about obtaining weapons in Pakistan and obtained clothing which evidenced that he intended to travel to Afghanistan to involve himself in hostile activities;

4. it is clear from the Agreed Facts that the Offender had radical extremist views demonstrated by watching a video promoting IS and the Offender’s actions in praying, singing, rehearsing speeches, and listening to various other chants and speeches – all of which demonstrated his adherence to and support of radical extremist views for which he intended to fight; and

5. during the offending period, the contents of conversations showed that the Offender had knowledge that what he was doing by way of planning a foreign incursion was a criminal offence that was a serious crime which could cause him to be incarcerated for a substantial period, but nevertheless knowing that, he continued to plan his trip.

52. The Offender submitted that the terrorism offence fell well below the mid‑range of the seriousness for offences of this kind and that the foreign incursion offence also fell below the mid-range.

53. With respect to the terrorism offence, the Offender pointed to the fact that the evidence largely comprised statements made either to himself or others, that there was no more than a bare articulation of ideas as opposed to any planning or research of any complexity or sophistication, the number of acts having regard to the period were quite limited, and that during the course of the period nominated it was clear that the Offender was not exclusively engaged in the commission of the offence. The submissions of the Offender pointed to the fact that whilst he had expressed interest in weapons and explosives, there was no evidence to establish that the Offender had ever actually imported or was in possession of any firearms, ammunitions, explosives or uniforms. Finally, the Offender pointed to the fact that there was no evidence that there was any person interested in participating in the Offender’s ideas and that he clearly was unsuccessful in recruiting anyone else.

54. The Offender submitted that when one looked at the entirety of the acts encompassed by both the offences, it was clear that the Court should find that the primary objective of the Offender between January and his arrest in July 2019 was to leave Australia and to travel overseas as opposed to actively engaging in the preparation for any domestic act of terrorism.

55. The Offender also pointed to the fact that many of the conversations relied upon by the Crown to constitute the terrorism offence are also consistent with past plans or intentions which had been discussed but which had clearly been abandoned by 2019. In particular, the Offender pointed to a statement made on 17 April 2019, to an undercover operative, that “I’ll be very honest with you. I have no plans to take up militancy against the Australian government” as demonstrating that whatever had been contemplated in the past was not being actively pursued and by that stage the Offender’s plans to travel to Pakistan were well underway.

56. As well, the Offender pointed to the fact that the Indictment to which he has pleaded guilty does not allege a particular act or acts in preparation, nor does it identify the specific nature of the terrorist act. He notes that this can be contrasted with other cases in which greater particularity of target and plan has been identified.

57. Whilst the Offender accepted that the legislation is designed to encompass the early stages of any preparatory acts long before they may mature into real, deadly or dangerous circumstances in the community, he submitted that the seriousness of this offence was moderated by the fact that, here, no target had been selected, no actual terrorist act had been identified, there were no plans as to who or how any such act would be carried out, and that the facts relied upon by the Crown simply demonstrated early, superficial conversations about an unknown, imprecise and unformulated terrorist act.

58. To the extent that the Crown’s case relied upon the letter written by the Offender to his fellow detainee, the Offender accepted that the letter does constitute an act of the kind caught by the legislation. He submitted that it was equally clear from the terms of the letter that the Offender accepted that he could not facilitate the doing of such things whilst ever he was in custody and was not in fact offering then and there to facilitate any such activity.

59. The terrorism offence is, in my assessment, one which fell towards the lower end of the range of similar offences. In my assessment, the Offender did a lot of talking and took little action. He had only the most generalised of plans. He had no weapons, nor had he attempted to acquire them. He had no followers. He had not persuaded anyone to his cause in Australia. There was no direct or indirect threat to anyone. Although imbued with extremist ideals, the likelihood of any terrorist act coming to fruition in Australia was very low indeed.

60. As to the foreign incursion offence, the Offender accepts that he undertook preparatory acts to travel to Afghanistan via Pakistan for the purpose of joining with IS in Khorasan province and engaging in hostile activities.

61. The Offender submitted that overall, with respect to the foreign incursion offence, he had a somewhat naïve and romantic notion of travelling to Afghanistan and that his statements, which are relied upon by the Crown, reflect little practical or detailed appreciation of what that would actually entail.

62. Whilst the Offender accepts that there is some evidence that he was in contact with people who could put him in contact with others who could transport him to Khorasan, the Agreed Facts did not disclose that he had any direct contact with anyone actually engaged in hostile activities.

63. Finally, the Offender submitted that the evidence in the Agreed Facts showed that he had a genuine interest in religious study being undertaken in Pakistan in addition to engaging in foreign hostilities. I am unpersuaded that this is so on the balance of probabilities. At best, the Offender was using an intention to study to provide a legitimate excuse for his travel to Pakistan, and more likely that if he was delayed whilst in Pakistan before getting to Afghanistan, he would undertake some study. There is no doubt he had a long‑term interest in study, but that was not, in my view, any basis to justify his travelling to Pakistan.

64. I am well satisfied that in respect of this offence, the Offender was motivated by his extremist ideals to go to Afghanistan to join the Mujahadin in Khorasan province and there to engage in some form of hostile activity. I do not accept that a significant motivating factor was to immerse himself in religious study. In this respect, the Offender took a series of steps to obtain a visa and passport and to travel to Pakistan by paying for an airfare.

65. Taking all of these matters into account, and giving full allowance to the purpose for which the Offender was intending to leave Australia and travel to Afghanistan via Pakistan, nevertheless I would assess this foreign incursion offence as falling at or just below the mid-range of offences of this kind.

Sentencing Considerations

66. Sentencing in this matter is governed by the provisions of Part 1B of the Crimes Act 1914 (“the Act”), together with the principles endorsed by the common law.

67. Section 16A(1) of the Act requires a court, when passing sentence, to impose a sentence that is of a severity appropriate in all of the circumstances of the offence.

68. When sentencing for terrorism offences, the authorities require the Court to consider the protection of the community, an element which is entitled to greater weight than might otherwise be the case; punishment of the offender; incapacitation i.e. the prevention of any crime which was within the consideration of the offender; denunciation of the offence; and both specific and general deterrence. Subjective circumstances and mitigating facts, including considerations of rehabilitation, are relevant, but often in terrorism offences occupy less weight.

69. In accordance with s 16A(2) of the Act, I am required to take into account the nature and circumstances of each of the offences – as I have earlier done. I am also required to take into account any other offences that are required to be taken into account. As earlier indicated, I take into account the membership offence with respect to the sentence to be imposed for the terrorism offence.

Contrition

70. As earlier indicated, the Offender has pleaded guilty to the first two offences and has asked for the third offence to be taken into account. He has admitted that third offence. The pleas of guilty were entered at an early time in the proceedings. It is submitted for the Offender that I ought take into account the act of pleading guilty to the offences as an expression of contrition. I do so, but I temper that expression of contrition and the weight to be put upon it in this matter by having regard to the strength of the Crown case which would unarguably have led to convictions.

71. When interviewed by Ms Chelsey Dewson, a Forensic Psychologist, on 17 February 2021, the Offender expressed his regret for his behaviour.

72. The Offender tendered a letter which he had written to the Court dated 30 April 2021. In that letter, he expressed remorse for his offending and described himself as being truly remorseful. He apologised unreservedly for his actions describing them as “illegal, immoral [such as to] rightfully to cause fear to law enforcement in the wider community”.

73. The weight to be given to the Offender’s expressions to Ms Dewson and the written letter of apology is diminished by the fact that the Offender did not give sworn evidence in support of those statements. I nevertheless have regard to them as being of some weight.

Pleas of Guilty

74. The Court is required to take into account the Offender’s pleas of guilty. They were first entered in the Local Court on 2 October 2020, prior to his committal and following negotiations about the terms of the charges. The Crown accepts that the pleas were entered at an early stage.

75. In my view, the early pleas significantly facilitated the course of justice and they demonstrated the Offender’s willingness so to do. They are also of significant utilitarian value. No trial was necessary. The time of investigators and witnesses have not been engaged. Resources of the State have been conserved. I propose to allow a discount of 25% on any sentence which would otherwise have been imposed to recognise the extent to which the Offender has facilitated the course of justice and the utilitarian value of the pleas. I have elsewhere referred to taking the Offender’s pleas of guilty into account as evidence of contrition and an acceptance of his responsibility for the offences.

Character Antecedents, Age, Means and Physical or Mental Condition of the Offender

76. The Offender was born in March 1999 and was, accordingly, aged between 19 and 20 when he committed the offence. He is now approximately 22½ years old.

77. The Offender was born in Sydney, is an Australian citizen and was, at all relevant times, unemployed. The Offender has no criminal history in Australia.

78. In September 2017, at the age of 18, the Offender was arrested in Tripoli, Lebanon, for attempting to join and fight with IS in Syria, making his way there via Turkey. He was apparently sentenced by Lebanese authorities to a term of imprisonment for one year but was released from custody in June 2018 after serving only nine months, whereupon he returned to Australia.

79. It is appropriate to take into account on sentence that the Offender is a relatively young man. Maturity (or the lack of it) is relevant to the consideration of all factors on sentence. However, the extent of the Offender’s immaturity is tempered by the fact that he travelled to Lebanon to undertake activities with IS in Syria and was caught and punished for that. By the time he returned to Australia, it would be hard to put much weight, if any, on his lack of maturity. He ought to have learned his lesson by then.

80. The Offender was raised in a family with Middle Eastern background who identify as Muslims. There may have been some behaviour disregulation during his childhood, however, I do not regard that as meriting any particular weight in considering the appropriate sentence to be imposed here. He attended various Islamic schools, described himself as a very good student, and successfully completed his Higher School Certificate. The Offender has worked in various casual jobs since the age of 16.

81. The Offender seems to have first been exposed to radical beliefs by his peers at about 15 or 16 years of age. He formed relationships with peers who espoused support for IS. Following his return from Lebanon, in mid-2018, the Offender commenced study towards a Bachelor of Anthropology at Western Sydney University. That study ceased about six months later at the start of 2019. He had some mentoring during that time.

82. The Offender was assessed by Ms Chelsey Dewson, a psychologist. From that assessment it appears that the Offender does not have any substance abuse history. Ms Dewson found that the Offender had a complex mental health picture. She said that there was a documented history of Attention Deficit Hyperactivity Disorder as a child, anxiety, and possibly Post Traumatic Stress Disorder (“PTSD”).

83. Dr Smith, a psychiatrist, concurred with the diagnosis of PTSD, for which it appeared that the Offender was being medicated with some improvement in symptoms. He was also being treated with SSRI medication – apparently for his anxiety. Dr Smith thought that the Offender needed some form of trauma‑focussed therapy of a cognitive behavioural kind. Dr Smith noted several current or recent symptoms reported by the Offender which remain unexplained. Dr Smith thought he had a fluctuating mood pattern. Looking at the entirety of the Offender’s symptoms, Dr Smith gave a tentative diagnosis of a mood disorder which would require ongoing longitudinal assessment for confirmation.

84. Dr Smith also noted that the Offender had a long-standing diagnosis of the auto‑immune disease of Psoriatic Arthritis. Dr Smith noted that chronic pain could be associated with mood disorders and that certain auto-immune conditions could precipitate psychoses. He recommended ongoing management for regular monitoring.

85. Reports of a consultant rheumatologist also noted the existence of the Psoriatic Arthritis for which the Offender had been treated with medication which has the effect of suppressing his auto-immune system. That, of course, predisposes the Offender to infection, including COVID 19.

86. The Offender is also reported as suffering from a degree of Bells Palsy.

87. The records of Justice Health indicate that it is aware of the Offender’s medical conditions and that it has been providing treatment for them by way of medication.

Prospects of Rehabilitation

88. Ms Dewson assessed the Offender using standard tools with respect to his risk of further offending. She noted, and I accept, that in the context of violent extremism risk assessments, the tests have been derived from a small cohort of individuals and so caution has to be exercised in the prediction of behaviour based on these instruments.

89. Ms Dewson expressed the view that overall, the Offender’s risk rating for general reoffending fell within the high-risk category. She noted that of people presently in custody who scored the same as the Offender, 45% were returned to custody for new offences within 12 months of release. Ms Dewson noted that this assessment took place at a time prior to the Offender being engaged in any educational employment or rehabilitation courses which, if successfully completed, may be expected to reduce the risk.

90. Ms Dewson expressed the view, having undertaken extensive assessment, that the Offender was at high risk of violent extremism. This was based on the fact that the Offender acknowledged holding extremist views in the recent past, although, Ms Dewson took into account that the Offender claimed to have reinterpreted his ideology after his arrest. However, she did note that the Offender had attempted to enter into an IS stronghold on two occasions and that he had not been deterred by his incarceration in Lebanon. She also noted that he had contact with known extremists (both domestically and internationally) and that contact appeared extensive. She further noted that, according to the Offender’s own account, his incarceration in Lebanon had provided him with significant exposure to, and contact with, IS members and sympathisers.

91. The Offender has denied any current interest in engaging in acts of violent extremism however he has not been exposed to any intervention as yet. Although I recognise that he has had some beneficial interaction with the Muslim prison Chaplain, Haris Mahmutovic, this has been limited (approximately 10 occasions) and no contact has occurred since February 2021.

92. Ms Dewson predicted that any future acts of violent extremism would most likely involve scenarios of the Offender making further attempts to join IS internationally. She recognised that the Offender had denied any attempt to carry out any domestic terrorist attack but said that she could not rule out such an attack. She expressed her opinion in the following way, which I accept:

“…, it appears that his offending behaviour was the result of social isolation, unmanaged mental health, susceptibility to influence, unhelpful peer associations, radicalised beliefs and a romanticised perception of living under Sharia Law. Acknowledging that [the Offender] self-reported a change in his beliefs in support for ISIS, he is currently assessed as being at high risk of violent extremism. It is assessed that the best way to manage [the Offender’s] risk is through participation in a formal intervention program.”

93. In the absence of the Offender giving evidence on oath and being subject to cross-examination about his renunciation of extremist beliefs and adherence to a more traditional form of Islamic religion, I remain unpersuaded that his renunciation of extremist views has taken hold, and that the Court could have confidence in his maintenance of that for the future. His prospect of rehabilitation at this stage can only be regarded as slight, although I would expect this prospect would improve when he has access and is able to participate in specifically designed intervention programs.

94. Clearly, the Offender’s PTSD and associated complex of mental health symptomatology will require ongoing monitoring and treatment whilst in custody and will make his time in custody more onerous than a person without such conditions. As well, I accept that his arthritic condition will also cause him pain (that will not always be relieved by medication) and ongoing discomfort, again making his time in prison more onerous.

Conditions of Incarceration

95. The Court has been provided with evidence about the Offender’s custodial conditions. At the moment, and except for a short time after his arrest, the Offender is incarcerated in the HRMCC. The HRMCC is divided into two different areas – one is designated for the secure management of the highest risk offenders (Area 1), and the other is designated as a step down area which seeks to assist offenders to progress and engage in relevant intervention services (Area 2), ultimately facilitating progression to mainstream custodial locations.

96. The Offender is in Area 1 where he has minimal association with other inmates and is allowed out of his cell for two hours each day for exercise in the open air unless he is otherwise confined to his cell by reason of custodial offending or HRMCC lockdown. Even when he progresses to Area 2, the step-down area, he would have a maximum of three to five hours out of his cell each day. On average there is a lockdown due to Correctional Centre routine at least once a week. Presently, all personal visits of a social kind are suspended, but the Offender is permitted one on-line visit every two to three weeks. Until the Offender is moved to Area 2, he does not have access to education.

97. It seems clear to me on the evidence that the conditions of incarceration for a person such as the Offender, convicted of a terrorist offence and who is classified Extreme High Risk Restricted are considerably more onerous than for the typical prisoner. It is also clear that the conditions in the HRMCC are also considerably more onerous than in many other parts of the Corrective Services facilities. I will take these more onerous conditions of custody into account.

Deterrence

98. I am not satisfied that, as explained earlier, the Offender is unlikely to reoffend. On the contrary, I accept what Ms Dewson has said with respect to his risk of both general and violent reoffending.

99. In part, one cannot leave out of this assessment the Offender’s initial motivation for the offences, namely that he was attracted to, and wished to participate in, violence driven by the extremist Islamic ideology propounded by IS. Whether or not he has entirely renounced his radical or violent Islamic extremist views is an open question. I am certainly not persuaded on the balance of probabilities that he has done so. I am satisfied he has made some attempts, but whether those attempts ultimately succeed is a matter about which I am not persuaded. This is particularly important when one has regard to the fact that the first offence is a terrorism offence.

100. It is obvious that I am required to ensure that the Offender is adequately punished for his criminal conduct. That punishment must be appropriate in all of the circumstances and the particular nature of the terrorism offence. However, as I have earlier found, the objective seriousness of this offence was below the mid-range for the terrorism offence and at or slightly below the mid‑range for the foreign incurrence offence. Nevertheless, general deterrence is a fundamental consideration when sentencing for Commonwealth offences as is, here in particular, the protection of the community. The protection of the community includes incapacitation i.e. preventing the Offender from carrying out the terrorism act which was his ultimate intention.

Discernment

101. I note that the Crown has provided extensive reference to a range of other cases involving offences against s 101.6 of the Criminal Code and for offences against s 119.4 of the Criminal Code. In addition, senior counsel for the Offender has provided other decisions. I have had regard to all of these decisions. They provide some guidance as to what has happened in those cases. None of the cases are the same as this one.

102. I take into account that each of the two offences for which the Offender stands to be sentenced are serious offences. The terrorism offence was one motivated for complex reasons but, essentially, through loneliness, lack of close friendships and an attraction to the apparently “noble ideals” of IS. This attraction has been deeply imbued in the Offender since the age of 15 or 16. His peer group were similarly attracted.

103. The Offender had grandiose ideas of undertaking some enterprise to establish IS in Australia, with the equally grandiose idea that he would be the head of it. As his multiple conversations show, he had not the slightest idea how that was to be achieved, he did not have the organisational capacity, he had not really done much which could be regarded as enabling his grandiose idea to come into existence and he only really sought to formulate some plan after he went into custody when he wrote to his fellow inmate – even that letter envisaged things which, in it, the Offender accepted were unable to be brought to fruition.

104. In the course of that conduct, I am satisfied that the Offender decided that a more easily achievable demonstration of his support for IS was to travel to Pakistan and make his way from there to the Khorasan province in Afghanistan where a branch of IS operated. He planned to join the Mujahadin in their frontline fight. Even this plan was poorly formulated. Whilst he did obtain a passport and a visa to enter Pakistan, together with some suitable clothing to be worn there – including a light protective vest, he had no formulated plan or other contact which would have enabled him to travel from Pakistan into Afghanistan and join those whom he so admired. He had made no arrangements for any weapons. He had no real idea as to how that was to be achieved but, because of the malign influence of the IS propaganda upon him, he was prepared to set out for Afghanistan via Pakistan even though the chance of him leaving Australia and reaching Afghanistan was, at best, remote.

105. Considering that he had already failed in one attempt to join IS when he travelled to Tripoli in Lebanon, his optimism at the likely success of this attempt was such as outweighed any real practical consideration of success.

106. The Offender remains at a high risk of committing further offences of violent extremism. I am satisfied that that will remain so unless and until he has access to intervention programs or other education programs available in the Correctional system. Necessarily, a final assessment of that risk can only be made after he has participated in those programs.

107. The Offender has expressed contrition, but I am unpersuaded that he has made any progress on a path to rehabilitation and I must be guarded about his prospect of successful rehabilitation.

108. In these circumstances, and particularly having regard to the fact that he had previously travelled abroad in an attempt to join IS, the principles of specific and general deterrence are of obvious importance and, certainly in respect of the terrorism offence, the principle of protection of the community must be given great weight. In respect of the foreign incursion offence, the protection of the community is also of importance i.e. the protection of the foreign community where the Offender intended to go and also thereby the protection of the Australian community because it involves adherence by Australia to its international obligations as part of a broad grouping of nations who seek to deter hostile activity in foreign nations thereby protecting themselves from such foreign hostile activity.

109. Much of the offending took place during the same period, and many of the acts relied upon by the Crown have been taken into account in assessing the seriousness of each of the two principal offences. In considering the terrorism offence, I must also take into account the third offence of membership of a terrorist organisation. In the particular circumstances here, that does not add much weight to the sentence for the terrorism offence having regard to its nature.

110. I am satisfied that it is appropriate to proceed by way of an aggregate sentence for the two offences. In that way, addressing the principles of totality and concurrency, I can be certain that there is no double counting of conduct which contributes to more than one offence.

Indicative Sentence

111. It is necessary to take into account the discount for the early pleas of guilty to which I have referred. However, the discounts applied are, in circumstances where an aggregate sentence is to be imposed, to the indicative sentences for each offence. It is convenient, therefore, for me to set out the indicative sentence. They are as follows:

1. in respect of the first offence – breach of s 101.6(1) of the Criminal Code, doing an act in preparation for a terrorist act and taking into account the membership offence contrary to s 102.3(1) of the Criminal Code – after the application of a 25% discount, I indicate a sentence of 4 years and 6 months;

2. in respect of the second offence – breach of s 119.4 of the Criminal Code – doing an act in preparation for a foreign incursion offence – after the application of a 25% discount for a plea of guilty, I indicate a sentence of 6 years.

Sentence

112. In my view, an appropriate aggregate sentence to be imposed is 7 years and 4 months. In accordance with the requirements of the Crimes Act, I fix a non-parole period of 5 years and 6 months. This sentence will commence on 2 July 2019, which was the day the Offender was arrested and taken into custody.

Explanation

113. The provisions of s 16F of the Crimes Act require me to explain the effect of this sentence. You are sentenced to imprisonment starting on 2 July 2019 for a total term of 7 years and 4 months of which you must spend at least 5 years and 6 months in custody before being released on parole. Whether you are released on parole is a matter to be determined by the Attorney-General of the Commonwealth of Australia having regard to your progress whilst in custody.

114. I am also obliged to warn you by reason of s 105A.23 of the Criminal Code that you may be the subject of an application for an order for your detention at the completion of your term of imprisonment.

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Agreed Facts on Sentence (2339817, pdf)

Amendments

13 October 2021 - Correction of Offender's legal representatives

Decision last updated: 13 October 2021