R v El Sabsabi

[2016] VSC 740

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0117

THE QUEEN
v
HASSAN EL SABSABI	Accused

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2015
FURTHER SUBMISSIONS:	26 August 2016; 14 October 2016; 29 November 2016;  5 December 2016
DATE OF SENTENCE:	7 December 2016
CASE MAY BE CITED AS:	R v El Sabsabi
MEDIUM NEUTRAL CITATION:	[2016] VSC 740

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CRIMINAL LAW – Sentence – Act in preparation for incursions into a foreign state for the purposes of engaging in hostile activities contrary to s 7(1)(e) Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) – Make funds available to known terrorism organisation - Maximum penalty 10 years imprisonment – Whether guidance from terrorism offences – Assessing objective seriousness – Plea of guilty – Delay – Utilitarian benefit discount for federal offences – Effect of delay – Rehabilitation – Consequence of a return to custody - Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms W. Abraham QC	Office of Public Prosecutions (Cth)
For the Accused	Mr S. Bayles	Stary Norton Halphen

HIS HONOUR:

1. Hassan El Sabsabi, on 9 September 2015 you pleaded guilty in this Court to two ‘rolled up’ charges of doing acts preparatory to incursions into a foreign State, namely Syria, for the purpose of engaging in hostile activities, contrary to s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (‘CFIRA’). The circumstances of your offending involved the transfer of electronic funds, either by you or by others acting at your direction, for the benefit of a man named Abedallah Karram. The transfers occurred on 11 separate occasions between June 2013 and September 2014, the total sum of which amounted to almost $16,000.00.

1. The maximum penalty for the offence of doing preparatory acts contrary to s 7(1)(e) of the CFIRA is 10 years’ imprisonment. That legislation has now been repealed and the relevant equivalent provisions are now contained in the Commonwealth Criminal Code. 

1. On 4 December 2015, I heard an opening and submissions from Ms Abraham QC on behalf of the Commonwealth Director of Public Prosecutions followed by a plea from Mr Bayles of counsel on your behalf.

1. It is now my responsibility to sentence you for these offences.  For reasons that will become apparent, there has been a significant delay in finalising the sentence now to be imposed on you and that is both unusual and regrettable.

Circumstances of offending

1. According to the Summary of Prosecution Opening, between 23 June 2013 and 16 September 2014 you, both personally and through a proxy, made 11 discrete money transfers to an individual named Abedallah Karram, a US citizen.  As mentioned the 11 individual transfers, summarised in the table below, totalled $15,999.00.

No.	Date	$AUD	Nominated recipient details	Charge
1	24/06/13	$851	Karram Abdallah of 460 Bayridge Ave, Brooklyn NY	1
2	18/07/13	$638	Karram Abdallah of 460 Bayridge Ave, Brooklyn NY	1
3	22/10/13	$1585	Hamin, Hosni Abdel, Egypt. Born 23 July 1963. Message says ‘From Abedallah Karram’	2
4	2/01/14	$1130	Marius Aierbacher of Hatay, Turkey – purpose of transfer ‘family support’	2
5	1/03/14	$1398	Mahmoud Ibrahim Khatib of Hatay Turkey with a message ‘Abedallah Karram’	2
6	25/03/14	$870	Mahmoud Ibrahim Khatib of Hatay, Turkey with a message ‘Abedallah Karram’	2
7	17/04/14	$1524	Initially Mahmoud Ibrahim Khatib or Hatay, Turkey then changed to Mohamed Salah on 26/4/14	2
8	2/06/14	$1350	Abdulrahman Alomar of Hatay, Turkey	2
9	4/07/14	$1080	Abdulrahman Alomar of Hatay, Turkey	2
10	11/08/14	$1100	Eid Saleh of Hatay Turkey (Syrian passport details)	2
11	17/09/14	$4474	Basem Alomar born 5 March 1975 of Hatay, Turkey	2
TOTAL  $15,999

1. The funds were transferred for the purpose of facilitating Karram’s travel from the US to Syria (Charge 1) and, once there, enable him to engage in hostile activities in that country (Charge 2).  As the table indicates, Charge 1 is based on the first two transfers and Charge 2 the remainder. Although it was contested by your counsel it appears likely that Karram did travel to Syria to engage in hostile activities.  The prosecutor submitted that the evidence suggests that happened on 13 August 2013. Whether he in fact did so or not is relatively inconsequential.  The important consideration is that you believed he went there and you believed the purpose for which you understood he did so. 

1. You and Karram met online in late 2012 and became friends. You regularly conversed on topics of common interest including Islam and the political situation in Syria including the development of the conflict in that country.  Your communications with Karram were lawfully intercepted by the Australian Federal Police and formed the majority of the evidence supporting the charges laid against you.  They have been documented in some detail and summarised by the prosecution in their opening.

1. During these various conversations you confided in Mr Karram your vehement opposition to the regime of Bashar Al Asad in Syria and your support for applying violent extremist ideology to remove Asad from power.  These were views Karram appeared to share with equal fervour. Over the course of your communications Karram discussed with you his intention of travelling to Syria via Turkey from the US to fight against the Assad regime.  It was at this point that Mr Karram asked for your financial assistance to enable him to carry out this intention. You agreed to assist.

1. On June 17 2013 before Karram had left for Syria, you and he had the following conversation via Facebook:

KARRAM:     I need support to go on vocation

YOU:             Financially

KARRAM:     Yes ahki if you can support of brother

YOU:             Of course

YOU:I need ur bank account detail akhi. I’ll do it tomorrow morning if Allah wills.  

1. The following day you and Mr Karram again corresponded on Facebook during which you stated ‘I’m not able to fight with my body ATM akhi.  So in going to do my best to fight with my wealth.’ The first transaction the subject of charge 1 occurred five days later.

1. According to the conversations taking place between you and Karram, which often accompanied or immediately preceded the transfer of funds, you financed both Mr Karram’s plane ticket to Turkey[1] as well as his replacement passport[2], he told you his original passport had been confiscated by his parents.  These acts constitute Charge 1 on the indictment

   [1]Facebook conversation on 23 June 2013 and transfer 1.

   [2]Skype chat on 16 July 2013 and transfer 2.

1. You continued to transfer money to Karram after 13 August 2013, that being the date at which Karram informed you of his arrival in Syria.  You believed Karram was using these funds to fight the Syrian government.  Money transfers occurring after Karram’s apparent arrival in Syria constitute Charge 2 on the indictment and are also particularised above.

1. Your correspondence with Karram continued during which he provided you with updates on his exploits in Syria, occasionally illustrating his achievements with graphic photos seeming to depict the slaying of pro-government soldiers.

1. For example, on 2 November 2013 Karram posted images on Facebook showing him holding a hand held radio and standing over the bodies of two deceased males dressed in military uniform.  Both bodies are lying close to pools of fresh blood.  In the background of one image are boxes of ammunition and weapons.  As I have already said, whether Karram was in fact in Syria engaging in hostile activities is inconsequential in establishing the requisite elements of the offences with which you are charged, provided you subjectively believed those things to be true.

1. As your association with Karram deepened, so too it appeared did your political views.  Those views, increasingly zealous in tone, were expressed by you on the social media platform Facebook.

1. On 30 January 2014 at 8.02pm you posted the following:

May Allah strengthen the mujahideen and protect them and make there path easier, sacrificing their lives for the sake of Allah for the sake of this unmah, for our sisters our brothers our mothers our children, may Allah honour them in this life and the next and grant them extreme closeness of the Allmighy

1. Karram, following persistent posting of pro jihadi propaganda by you, became concerned you would attract the attention of the authorities and wrote to you via Skype:

Don’t say the cause on facebook nor say u wanna come nor metion sadaqa in the cause

Don’t speak about it

Or they will get you if u keep talking or wait to get you when they try to leave

Be smart

1. In defiance of Mr Karram’s warning on 16 March 2014 you posted the following on Facebook:

‘May Allah destroy the shia and Alawi fighting the Muslims, these are the devils in the form of human beings

1. Indeed, there seems to have been a period of time when you yourself resolved to fly to Syria to take up what you saw to be the cause of Allah.  This aspiration was only fleeting and you wisely decided against departing when you realised other individuals suspected of terrorist offences had had their passports cancelled.[3]

   [3]Facebook conversation between El Sabsabi and Mr Karram on 9 December 2013 at 7.43am.

1. Although, based on your correspondence with Karram occurring in late March 2014, you appear to be in some doubt as to with whom Karram was fighting, you suspected he belonged to either JAN (Jabhat Al-Nusra) or ISIS and you were indifferent in any event claiming you ‘support all the muhahideen’.[4]

   [4]Facebook conversation between El Sabsabi and Mr Karram on 19 March 2014 at 7.20pm.

1. By July 2014 your increasing devotion to Karram had begun to cause tension between you and your wife as well as between you and your father.  Your wife, in particular, started to envy your relationship with Karram to whom you seemed to be paying significantly more attention.  In a conversation between you and your wife on 2 September 2014 she claimed you had been brainwashed by Karram.[5]

   [5]Text message conversation between Sarah Abdullah and El Sabsabi on 29 August 2014 at 3.52pm.

1. On 30 September 2014, almost two years into your acquaintance with  Karram and two weeks after your last funds transfer to him, you were arrested by Australian Federal Police in your home.  Your arrest was recorded as was the execution of the search warrant.  You were cautioned but nonetheless made a number of admissions including that you had given money to Karram who you referred to as your friend.  You describe witnessing your brothers and sisters being murdered on television and how you felt you would be committing a crime by not giving money to Karram who you claim is not a terrorist.

1. After your arrest you were transferred to AFP headquarters where you participated in a record of interview in which you exercised your right not to answer questions.

1. A number of items were seized from the Seabrook property including a Western Union transfer receipt for $4670.00 and transfer documents, the latter had been torn into pieces and placed in an outside rubbish bin.  Police also located a lap top and mobile phone an examination of which revealed images of Western Union transfer forms sent from you to Karram, Facebook and Skype conversation between you and Karram and recorded skype video messages created by you for Karram.

Nature and gravity of offending

1. As to the nature and gravity of these offences there is some argument between you and the prosecution.  It is, in my opinion, significant that you were sending money to Karram believing that he was engaging in hostile activities, to use the language of the legislation and, in particular, believing that people were being killed.  You were not deterred by the belief that that was occurring.  I accept that it is not clear beyond reasonable doubt as to the role that was being played by Karram notwithstanding the material in the prosecution brief.  However you believed what he was telling you about the role he was playing, and you acted on what he told you believing it to be true and, furthermore, approved of what he was saying was occurring.

1. It was also put on your behalf by Mr Bayles that this was a less serious offence because of the autonomy of Karram.  As I understand the submission, the point was being made that you simply supplied funds to him.  You were not the motivator or organiser of the activities that Karram engaged in and, although you asked others for money, you were not part of any group or organisation.  That appears to be true and therefore for those reasons it was submitted these offences are less serious than others that might have occurred.

1. On the other hand, the prosecutor submitted these were very serious offences.   She pointed out that you knew of the illegality of your actions having searched an Australian Government website which confirmed JAN was a listed terrorist organisation, and that consequently the circumstances of your offending required that you be sentenced to a period of imprisonment.  Correctly, she submitted that it was significant that you explicitly enquired whether any of the funds you had sent had been used to kill in the name of Allah.

1. More controversially, it was also submitted by the prosecutor that I should take some guidance from terrorism offences in imposing this sentence on you.  I have earlier considered this argument[6] and adhere to the view I then expressed:

In my opinion, the objective seriousness of your conduct can be assessed without reference to offences which are different and which carry a different maximum penalty.  As I noted in the submissions, the intention to engage in hostile activities in a foreign state is not the same as an intention to engage in an act of terrorism in Australia but is nonetheless a serious offence.  Conduct such as yours done with the intention to engage in hostile activities in Syria has the potential to affect Australia’s international relations and is obviously contrary to the country’s national security interests. 

[6]R v Mohammed [2016] VSC 581.

1. The same applies when dealing with conduct to assist another to engage in hostile activities.  I also note that recently in The Queen v Succarieh[7] Atkinson J, in the Queensland Supreme Court, rejected a prosecution submission to the same effect in a similar matter under the CFIRA under which you are charged.  As the prosecutor submitted, punishment, deterrence, denunciation and protection of the community are well-understood and significant sentencing principles.  As to the last of them, it remains the case that despite your then held views you were not planning any terrorist activity in Australia and there is no evidence that you were or are a threat to community safety. 

   [7]Supreme Court of Queensland (2 November 2016).

1. In my opinion though, however strongly you felt about the injustices you were aware of in Syria, the fact is that you decided to contribute a relatively significant sum of money to a person to enable him to engage in hostile activities in that country which appeared to you to involve violence and killing.  Such conduct has been unlawful in this country for many years and for good reason.  Your offending is objectively serious.

Delay in arrest

1. It was submitted by your counsel that despite the Joint Counter Terrorism Team of the AFP becoming aware of your activities in February 2014 and arguably at that point having the option to charge you with the offence for which you are soon to be sentenced, they chose not to intervene and you continued.  Your counsel submitted that the failure of the AFP to intervene in order to stop you sending these sums of money, whilst not detracting from the subjective seriousness of your conduct does have implications for the objective assessment of the seriousness of this offence in this instance.

1. Furthermore, it was submitted that it would be incongruous for the prosecution to assert that your offending constitutes a serious example of the offence when the AFP stood by and allowed further offences to be committed over a seven month period when earlier intervention was available.

1. By contrast, the prosecutor submitted that any strategic delay demonstrated by the AFP could be dismissed as part of general covert investigation practice.

1. Although no such submission was made by the prosecution, it appears to me as though the catalyst for the action taken by the AFP culminating in your arrest was the amount of the final transaction, which on its own constitutes more than a quarter of the total amount transferred over the 11 individual transactions.  That being said, I agree with the submission made on your behalf that the decision of the AFP to refrain from taking action at the earliest possible opportunity is indicative to some degree of their view of the gravity of the offending.  Had the AFP been made aware of more serious examples of the offending that perhaps posed a more imminent threat, they would not have hesitated in intervening.

1. However whatever the reasons for that occurring, it is my assessment of the seriousness of your conduct that is significant for the purpose of imposing a sentence on you.

Personal circumstances

1. You are now 24 years of age.  You were 21 years when you first met Karram and 22 to 23 years during the offending period.  In the course of his submissions on your behalf your counsel, Mr Bayles, referred to your youth which he noted was significant in explaining how you might have become involved with Karram.  He relied on your lack of prior offending[8] and your ongoing compliance with bail conditions as indicative of your rehabilitative potential.  Naturally your rehabilitation is in the public interest.

   [8]You have been convicted for previous offences all of which relate to traffic offences and are therefore not relevant to the sentence I will soon impose on you.

1. Up until your arrest you and your wife resided with your parents and your four brothers.  You were employed at a pizza restaurant.

1. In relation to your background, you were born in Williamstown and grew up in Altona North.  You were the son of a hard working migrant family who did their best to make your childhood cohesive and settled.

1. In 2000 at age 10 you embarked on your first of three trips to Lebanon and Syria.  It was at this time you were first exposed to the atrocities being committed in that region.  You report witnessing children being tortured and when you sought answers from your uncle as to why that was happening, you were told the torture was being carried out by the Syrian regime.

1. You returned to Lebanon and Syria in 2009 where you describe being harassed incessantly by Syrian soldiers.  In 2012, following a broken relationship, you returned to the region for a third time.  Your wife, Sarah, whom you met shortly before this trip, attributes the increase in your religious zealotry to the trip you made to Syria in 2012.  According to her, you were not practicing your religion when the two of you first met.  It was after that third trip that you become preoccupied with the crisis in Syria having been exposed, for a third time, to atrocities taking place there.  It was also during this period that you began your acquaintance with Mr Karram. 

1. You report experiencing somewhat of an existential crisis following your return home to Australia in late 2012.  You were unable to reconcile the lifestyle you had in Australia with the atrocities you had witnesses abroad. In an attempt to resolve this tension you turned to religion.

1. In that connection I have read your personal statement which became exhibit E in the proceedings.  I am willing to accept that you committed these offences motivated by your concern over the political situation in Syria and particularly the actions of the Assad government against its own people.  However as the prosecutor has pointed out, you did not give evidence to support that document and it was submitted if you are to be sentenced on the basis that you are rehabilitated and remorseful, there should be evidence about that. 

1. During a conversation with Karram, absent from the Crown Opening but referred to by your counsel during the plea, you appear to support the United Nations and world peace.[9]  Paradoxically, during the same conversation you champion the proscribed terrorist organisations of JAN and ISIS claiming you ‘support all the mujahedeen… but sort of lean towards ISIS’.  Regardless of whom you believed you were supporting and what outcome such support would engender, you provided funds to an ostensible foreign fighter that you believed would enable unsanctioned killings in a foreign state. 

   [9]Plea Hearing transcript at p [17].

Youth and prospects of rehabilitation

1. You are to be categorised as a youthful offender, being 22 and 23 years during the offending period.  That being the case, rehabilitation is a sentencing consideration to which I must give significant weight in determining your sentence.[10]  The prosecutor effectively took issue with that submitting that you do not strictly fall into that category. 

   [10]See R v Mills [1998] 4 VR 235; R v Wyley [2009] VSCA 17 and; DPP v Anderson [2013] VSCA 45.

1. You pleaded guilty at a relatively early stage.  However, that occurred after a contested committal but before any initial directions hearing in this Court.  Aside from the utilitarian benefit of an early plea to which I will later refer, pleas of guilty are to be taken as evidence of some remorse on the part of the offender’.[11] 

   [11]R v Tasker (2003) 7 VR 128 at 133 per Eames JA.

1. The aim of the rehabilitative process is always to reshape the attitudes and behaviours of an offender to a point where they are able to function productively and harmoniously within the community without posing a risk of reoffending.

1. Also presented during the plea was a report from Abdulazim Afifi from the Australian National Imams Council who has known you for some time and describes you as sincerely remorseful.  References also came from your wife, your cousin and friends all of whom will support you in the future which is, of course, encouraging.

1. For you, rehabilitation may involve some form of what some describe as ‘deradicalisation’.  That process will necessarily require you to channel the empathy you apparently feel for those who live in a far less fortunate society than your own, into non-violent constructive efforts.  There is no magic process of a person being ‘de-radicalised’.  Despite the recent submissions of the prosecution, the continuity of your family situation over the last 12 months whilst you have been on bail is very encouraging.

1. Amongst the material your counsel relied on is a report from Monique Toohey who is a clinical psychologist.  Her report describes that she has been administering treatment to you between February and November 2015.  For reasons I am not clear about, Ms Toohey did not give evidence and that does affect the weight to be placed on that material.  She appears to diagnose symptoms of an adjustment disorder.

1. According to Dr Toohey’s psychological report your likelihood of reoffending is low. Dr Toohey supports this conclusion by making reference to your tight knit and supportive family, in particular your happy marriage.  She also refers your present avoidance of people espousing radical and violent opinions.  Furthermore she notes your recently acquired understanding that you ‘must direct [your] community mindedness and altruism to organisations that are legitimate. 

1. The choices you made that led to your offending behaviour were naïve and misguided and the material does suggest that you now realise that.  However, there remains the difficulty that I am unsure that the views you held which led to you committing these offences have now been totally discarded.  As the prosecutor argued, it would have been desirable to hear evidence about that which could then be tested by cross examination.  That did not occur.  On the other hand, the events which have occurred since your arrest do not give any indication that you remain adherent to the views your expressed at the time.

Youth and the effect of imprisonment

1. You have no relevant prior convictions.  As a young person you are, for the first time, facing the prospect of a term of imprisonment and have already served just short of two months in custody.

1. I have considered the submissions put on your behalf referring to the deleterious effects of imprisonment given your age.  In summary those submissions refer to the need when considering sending a young person to gaol for the first time, to take into account the likely adverse effects of a gaol sentence including the likelihood of that person, following the completion of their custodial sentence, becoming ‘distinctly more anti-social in thoughts and deeds than when he went in’.[12]

   [12]R v Dixon [1975] ACTR 13 per Fox J.

1. I do not doubt a term of imprisonment would be more difficult for you than other prisoners.  In your letter you recount how harrowing the weeks you spent in custody were for you before you were released on bail.  However, aside from your rehabilitation I must also consider the countervailing considerations of deterrence both general and specific as well as the denunciation of your conduct which I will shortly turn to.

Plea of guilty and delay

1. When you were arrested on 30 September 2014 you immediately admitted making the payments that are the subject of these charges and you explained why you made them.  Those reasons seemed to include your belief that people with whom you were sympathetic were being brutalised in Syria.  Your counsel relied on your motivation for providing these funds that he effectively submitted were more noble than might ordinarily be the case.

1. While I agree this motivation is perhaps more honourable than others I have encountered, it by no means excuses your actions nor should it temper the degree of remorse expected from you.

1. Having been arrested in September 2014 it was not until August 2015 that you indicated a willingness to plead guilty.  Although I accept your plea of guilty illustrates your willingness to take some responsibility for your actions I am somewhat troubled by the contents of the unsworn letter authored by you and tendered to the Court which, rather than recognising your foolish and potentially very dangerous offending for what it is, seems to suggests you consider yourself to be the victim of unfortunate circumstances.  For example, in the last line of your letter you write ‘… I regret what I did yes, but I was young and I made mistakes I’ve been through so much in life and happiness is all I longed for’.  The sentence I will soon impose on you will, I hope, persuade you to reflect on your actions and ultimately  take full responsibility for them.

1. It is in relation to your plea of guilty and the consequences of it that the delay in sentencing you has arisen.  The position of the prosecutor at the hearing of the plea was that you should not receive a sentencing benefit on the basis that your plea of guilty has a utilitarian value in saving the time and cost of a trial.  Whilst such a consideration applies to offences under the law in force in Victoria, it was argued that it should not apply in this case because it does not apply to Commonwealth legislation.

1. On the other hand, your counsel submitted that the utilitarian benefit applies and that it is a matter of some significance because your plea was an early plea of guilty and that significant weight should be given to that plea for all of the reasons that attract to a plea of guilty and that the utilitarian benefit has traditionally been held as one of the important factors that give rise to a discount on the plea.  That was therefore a matter of some significance on your behalf.

1. The issue was to be determined by the Victorian Court of Appeal in a case called DPP vThomas.[13]  It was argued on your behalf and not resisted by the prosecutor that I should await the outcome of that appeal before sentencing you.  It was expected that the Court of Appeal would hear the matter in February 2016 but in fact did not do so until 23 May 2016.  The Court delivered its judgement on 10 October 2016.  Each time this matter was mentioned to me I was asked not to sentence you until that outcome was known.

   [13][2016] VSCA 237.

1. It is enough for these purposes to note that in Thomas the Court of Appeal concluded that a sentencing court must take into account of the fact of the plea of guilty and that includes taking account of the objective utilitarian benefit of a plea of guilty.  A discount is to be allowed for the utilitarian benefit afforded the administration of justice by virtue of the plea of guilty.  Your willingness to facilitate, or co-operate in, the course of justice is demonstrated by your plea of guilty.  Your willingness to follow that course vindicates the course of justice, saves the community the expense of a trial and releases witnesses from the ordeal of a trial.  These considerations provide the primary basis for the discount for a plea of guilty.  It is important that the utilitarian benefit be adequately reflected and it will be.

1. In the ordinary course of events you would have been sentenced in the early part of 2016.  It is now the late part of this year and so a period of some 10 months has passed during which you have been in a state of uncertainty about your future.  Prior to December 2015, this matter was taking its usual course given the procedural history.  In addition, as a result of a sentence imposed by Atkinson J in the Supreme Court of Queensland in a similar matter, I was asked to delay sentencing you until those reasons for sentence were available and further written submissions on your behalf were prepared and filed.  That occurred and I have read the reasons for sentence by Atkinson J and the submissions filed on your behalf and on behalf of the Prosecution which  both deal with consistency in sentencing.

1. I note that at the conclusion of the plea hearing in December 2015, and over the objection of the prosecutor, I extended your bail and you have remained on bail ever since.  As I would have expected, you have not committed any offences during that time and, to your credit, you have complied with your bail conditions that included regular police reporting.  Obviously you will have been concerned with when the outcome of this sentencing hearing would be known and I accept that continuing uncertainty would have been very difficult for you.

1. The delay I have identified and the circumstances in which it occurred is not insignificant and I have taken it into account in the sentence I will shortly impose on you.

Conclusion

1. Section 16A(1) of the Crimes Act (1914) (Cth) requires me to consider whether the sentence to be imposed on you is of a severity appropriate in all the circumstances of the offence.  Despite your age and lack of prior convictions, I had originally concluded that it was simply not feasible to impose a sentence on you that amounts to imprisonment only for the period of the time you have already served or to impose a Community Corrections Order as was urged upon me on your behalf.  In the times in which we live, denunciation as well as specific and general deterrence are particularly important sentencing factors in relation to offences of this nature involving as they do actions to assist another to become a foreign fighter in the conflict which continues in Syria.  I had originally considered that a further term of imprisonment was the only course I could follow.

1. However, on reflection and given the unusually long time that has passed since your plea, it is now acceptably clear that your rehabilitation is well advanced. Your law-abiding conduct during the period of delay is evidence of that. In my opinion it would not only be counter-productive to you but also to the community to return you to custody because, in all likelihood it would set back your rehabilitative progress. I have now reached the opinion that a two year Community Corrections Order (CCO) with, among other conditions, regular judicial supervision, meets the sentencing requirements that are imposed on me. The combination sentence of CCO and imprisonment for a single offence provided for in section 44 the Victorian Sentencing Act 1991 is not available for Federal offences.  However, as I understand it, I am not prevented from imposing a CCO for one offence and a sentence of imprisonment on the other offence.[14] 

   [14]Atanackovic [2015] VSCA 136.

1. Therefore, I order than on Charge 1 you be sentenced to be imprisoned for 44 days commencing on 30 September 2014, that being the date you went into police custody and constitutes the time you have already served in custody before you were granted bail on 12 November 2014. On Charge 2 I propose that, subject to assessment, you be placed on a Community Corrections Order for a period of two years which, in addition to the mandatory terms required by s 45 of the Sentencing Act 1991 (Vic) will include the following conditions:

(a)   Pursuant to s 48C, you be required to perform 252 hours of unpaid community work.

(b)   Pursuant to s 48D(3)(e), you engage in mental health treatment, specifically ongoing counselling support.

(c)    Pursuant to s 48D(3)(f), you participate in the Community  Integration Support Program facilitated by the Islamic Council of Victoria.

(d)  Pursuant to s 48E, a supervision condition be included.  The Supervision condition will require you to attend at your local Community Corrections Office from time to time as directed.  You are also required to report to that office within two workings days of this order being imposed.

(e)   Pursuant to s 48F, you be prohibited from contacting Mr Abedallah Karram.

(f)         Pursuant to s 48K, you be required to re-appear before the Court to review your compliance with the order at six months intervals from the time of the order until its expiration.

1. Applying s 6AAA of the Sentencing Act 1991 (Vic) I would declare the sentence I would have imposed on you had you not pleaded guilty as three years’ imprisonment and I would have fixed and period of 18 months before you would have been eligible to apply for release on parole.

1. Sections 8A(3) and 37 of the Sentencing Act require me to order a pre-sentence report before imposing a Community Corrections Order, as I intend to do.

1. I will therefore now stand the matter down briefly to enable the required on-the-spot assessment to occur.  Presuming the results of that assessment confirm your suitability, I will reconvene court and pronounce the order.