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

---

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

---

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.

---

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:

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.

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 That legislation has now been repealed and the relevant equivalent provisions are now contained in the Commonwealth Criminal Code.

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.

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v El Sabsabi

Details

AGLC: R v El Sabsabi [2016] VSC 740
Case: [2016] VSC 740
Decision Date: 7 December 2016

CaseChat Overview and Summary

The respondent, Mr El Sabsabi, was charged with a number of offences, including acting in preparation for incursions into a foreign state for the purposes of engaging in hostile activities, contrary to section 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The charges arose out of an investigation into his intention to travel to Syria to join the Islamic State. The respondent pleaded guilty to one count of making funds available to a known terrorism organisation, for which the maximum penalty was 10 years imprisonment. The court was required to determine the appropriate sentence for the offence, taking into account the relevant statutory provisions and case law.

The court identified that the maximum penalty for the offence was 10 years imprisonment, but noted that the sentencing principles for terrorism offences could be relevant to the assessment of the objective seriousness of the offence. The court also considered the delay between the offence and the plea of guilty, the utilitarian benefit of a custodial sentence, the respondent’s rehabilitation and prospects for reintegration into the community, and the consequences of a return to custody. In determining the appropriate sentence, the court applied the principles set out in the relevant case law, including the need to ensure that the sentence reflects the seriousness of the offence and is proportionate to the offender’s culpability and the circumstances of the case.

The court found that the offence was of high objective seriousness, given the respondent’s intention to travel to Syria to join a known terrorist organisation and the potential for his actions to facilitate further terrorist activities. However, the court also noted that the respondent had pleaded guilty at an early stage, had shown genuine remorse, and had made efforts to rehabilitate himself while on bail. The court also considered the potential for a custodial sentence to have a negative impact on the respondent’s rehabilitation and prospects for reintegration into the community. In light of these factors, the court determined that a non-custodial sentence was appropriate, and imposed a Community Corrections Order with a term of three years, including supervision and other conditions aimed at preventing re-offending and promoting rehabilitation.

The court made a final order that Mr El Sabsabi be subject to a Community Corrections Order for a period of three years, with conditions including supervision, a curfew, and restrictions on his internet use and contact with certain individuals. The court also ordered that the respondent pay a fine of $5,000 and make reparations to the victim of a previous offence.

Orders