R v Elmir (No. 3)

[2019] NSWSC 1040

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	R v Elmir (No. 3) [2019] NSWSC 1040
Hearing dates:	28 June 2019
Date of orders:	16 August 2019
Decision date:	16 August 2019
Jurisdiction:	Common Law - Criminal
Before:	Davies J
Decision:	For the offence of committing acts in preparation for incursions into a foreign country for the purpose of engaging in hostile activities, contrary to s 119.4(1) of the Criminal Code (Cth), the offender is sentenced to imprisonment for five years and five months commencing on 22 April 2017 and expiring on 21 September 2022 with a non-parole period of four years and one month expiring 21 May 2021
Catchwords:	CRIMINAL LAW – sentence – foreign incursion offence – offender pleaded guilty on first day of trial to an offence against s 119.4 Criminal Code (Cth) – offender committed acts in preparation for incursion into a foreign country for the purpose of engaging in hostile activities – offender travelled to Turkey with the intention of crossing into Syria – stayed in an Islamic State safe house in Turkey – sought assistance to cross into Syria and to make contact with persons associated with IS – obtained military equipment – offender ultimately deported from Turkey back to Australia and subsequently arrested – offender had taken serious steps in the commission of the offence – accumulation of military equipment suggested intent to take an active part in hostilities – offender’s contacts and connections in Turkey demonstrated at least a moderate degree of planning – offending fell slightly below the mid-range of objective seriousness – whether the offender had changed his extreme views – where the offender did not give evidence at the sentence hearing – where the offender refused to stand – available evidence did not suggest that the offender had changed his views – assessment of remorse and prospects of rehabilitation and reoffending – where a letter from the offender expressing regret was provided to the Court – without evidence from the offender that was capable of being tested the Court did not find remorse – prospects of rehabilitation only fair – offender’s criminal antecedents afforded him no leniency – regard had to both general and specific deterrence – discount given for guilty plea SENTENCING – backdating of sentence – following arrest in 2016 the offender has been remanded in custody awaiting trial – whilst in custody the offender was convicted of assaulting two corrective services officers – sentenced to 8 months’ and 6 months’ imprisonment to be served concurrently – whether the time served for those assault offences should be included in the period of pre-trial custody for the present offence – s 16E Crimes Act 1914 (Cth) and ss 24 and 47 Crimes (Sentencing Procedure) Act 1999 (NSW) – issue to be resolved applying the principle of totality – adjustment made to the commencement date to take into account the sentence imposed for the assault offences
Legislation Cited:	Crimes Act 1900 (NSW) s 60A Crimes Act 1914 (Cth) ss 3E,16A, 16E, 17A, 19AG Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) s 6 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 24, 47 Criminal Code (Cth) ss 105A.23, 119.1, 119.4
Cases Cited:	Bassam Hamzy v R (District Court (NSW), Graham ADCJ, 21 Feb 19, unrep) Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145 Director of Public Prosecutions (Cth) v Hassan El Sabsabi [2017] VSCA 160 DPP (Cth) v El Karhani (1990) 51 A Crim R 123 Elomar v R [2014] NSWCCA 303; (2014) 300 FLR 323 Elzahed v Kaban [2019] NSWSC 670 Faheem Khalid Lodhi v Regina [2007] NSWCCA 360; (2007) 179 A Crim R 470 R v Alou (No. 4) [2018] NSWSC 221; (2018) 330 FLR 402 R v Alqudsi [2016] NSWSC 1227 R v Azari (No 12) [2019] NSWSC 314 R v Biber [2018] NSWCCA 271 R v EB [2018] NSWSC 201 R v Ghazzawy [2017] NSWSC 474 R v Hraichie (No. 3) [2019] NSWSC 973 R v Khaja (No 5) [2018] NSWSC 238 R v McHugh (1985) 1 NSWLR 588 R v Rahman; R v Mohammed [2008] EWCA Crim 1465; [2008] 4 All ER 661 R v Succarieh; R v Succarieh; Ex parte Commonwealth Director of Public Prosecutions [2017] QCA 85; (2017) 266 A Crim R 420 R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365 R v Taleb (No 5) (Sentence) [2019] NSWSC 720 Regina (C’Wealth) v Elomar [2010] NSWSC 10; (2010) 264 ALR 759 Regina v Lodhi [2006] NSWSC 691; (2006) 199 FLR 364 Regina v Karageorge [1999] NSWCCA 213 The Queen v Amin Mohamed [2016] VSC 581
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Crown Amin Elmir (Offender)
Representation:	Counsel: P McDonald SC & A Rose (Crown) G Scragg (Offender)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Lawyers Corp Pty Limited (Offender)
File Number(s):	2016/384538
Publication restriction:	Nil

Judgment

1. The offender pleaded guilty on the first day of his trial to an offence against s 119.4(1) of the Criminal Code (Cth), namely that between about 23 April and 19 June 2016 he committed acts in the Republic of Turkey in preparation for incursion into a foreign country, the Syrian Arab Republic, for the purpose of engaging in hostile activities, being reckless as to the fact that the conduct was preparatory to the commission of an offence under s 119.1 of the Criminal Code.

2. The particulars of the offence against s 119.1 are that the offender committed acts in Turkey with the intent to engage in a hostile activity in Syria. The objective of the hostile activity was to achieve one or more of the following:

(a)   The overthrow by force or violence of the government of Syria, or part of Syria;

(b)   The engagement in action that:   

(i)   falls within s 100.1(2) of the Code but does not fall within s 100.1(3), namely action:

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

2.   causing serious damage to property; or

3.   causing a person's death; or

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

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

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

3. The maximum penalty for the offence against s 119.4(1) is imprisonment for life.

4. In sentencing the offender I must have regard to the matters set out in s 16A(2) of the Crimes Act 1914 (Cth) (“the Crimes Act”) as are relevant.

The offending (S 16A(2)(a))

5. In short, the offender travelled to Turkey with the intention of crossing into Syria; stayed in an Islamic State (“IS”) safe house in Turkey; sought the assistance of others to help him cross the border from Turkey into Syria; sought the assistance of others to help him make contact with persons connected to IS; and obtained military equipment.

6. The offender is to be sentenced on the basis of an agreed statement of facts, and it is from those facts that the following is drawn.

7. On 7 April 2016 the offender departed Sydney for Saudi Arabia for a religious pilgrimage with his family. On about 23 or 24 April 2016, the offender left his family in Dubai and travelled to Istanbul in Turkey. He remained in Turkey for approximately two months, during which time he conducted preparatory acts to cross into Syria to join and fight for IS and to promote its agenda. He took steps to facilitate his travel into Syria by staying in a safe house in Turkey run by IS, obtaining military equipment and contacting others through social media applications, asking them to help him to cross into Syria. One of the persons he contacted was a person known as “EB”, who was another supporter of IS and who the offender knew from Australia.

8. EB made contact with persons on social media applications, including undercover law enforcement officers, in an attempt to assist the offender to cross into Syria. At the time, EB was under investigation by the Australian Federal Police.

9. On 6 October 2017, EB pleaded guilty, among other things, to giving/receiving services to promote a s 119.1 offence, being the present offender’s offence of engaging in conduct in Turkey in preparation for entering Syria with the intention of engaging in a hostile activity, contrary to s 119.4(5) of the Criminal Code. EB has since been sentenced by me for this offence: R v EB [2018] NSWSC 201.

10. It is necessary to set out some of the conversations between EB and the offender so that the assessment of the objective seriousness of the offending and certain submissions made on behalf of the offender can be properly understood. In assessing the objective seriousness of the offending, I have disregarded the evidence of conversations between EB and the undercover officers (known as Person 1 and Person 2) insofar as they say anything about the offender’s intentions or actions.

11. On 27 May 2016 at 15:03 AEST EB and the offender had the following conversation on Facebook Messenger:

EB:   This is hidaya (guidance) from allah

EB:   if u have not gotten what u wanted yet

EB:   download tele speak to this brotha

EB:   A bro named abu d will contact you.

(The words "if u have not gotten what u wanted yet" is a reference to the Offender crossing the Turkish border into Syria.)

12. On 5 June 2016 the offender, using the username Muhamad Dawah, accepted EB’s friend request on Facebook. They had a conversation, in the course of which EB told the offender to download Telegram. Telegram is an encrypted messaging application which enables users to send messages and other files to fellow Telegram users. Telegram does not disclose data to third parties including governments.

13. Thereafter on that day the offender, using the username Micheal Markis, had a conversation with EB on Telegram in these terms (emphasis added):

EB:   Asalamu alaikum akhi (Peace be upon you my brother)

EB:   theres a bro in turkey

EB:   who u r gna msg

Offender:   Walakom asalam (and upon you peace)

EB:   u n tbe bro can speak

EB:   and work everything out

Offender:   Speak to about h (Hijrah )

(The agreed facts note that “Hijrah” has, in recent times, been used to describe the trip undertaken by foreign Muslims to Syria/Iraq to join IS)

EB:   yes.

Offender:   Ive already spoken to some one hete [scil. here]

Offender:   Im waiting

Offender:   On a way

EB:   Khayr (good) then .. Alhamdulillah (Thanks/Praise be to God)

EB:   how have u been anyways

Offender:   Good alhamdulilah (Thanks/Praise be to God) i get the feeling i know you

EB:   ahahaha you do akhi (brother)

Offender:   Alhamdulilah (Thanks/Praise be to God)

EB:   ive sat with u at the guildford waffle place

Offender:   Oh yeah how you been

EB:   Alhamdulilah, cant complation .. hows turkey

Offender:   Its ok its full of spinners

EB:   Lolll

Offender:   The people i met so far and spoke to have no religion

EB:   your in Istanbul yh

Offender:   Nah

Offender: No locations akhi (my brother)

EB:   Khayr (Good)

Offender: I seen it its nice

EB:   Anyways akhi (my brother) i gotta leave if the person ur in contact

with doesent help u then let me know in sha Allah (If God wills it)

EB:   And if u arrive safely also let us know

EB:   So I can tell the bros here

EB:   … (The peace, mercy and blessings of Allah be upon you)

EB:   stay safe akhi (brother)

Offender: …

Offender: …

(In total - The peace, mercy and blessings of Allah be upon you)

Offender: Jazak Allah kheir akhi (May god reward you with the good/goodness brother)

14. On 17 June 2016 the offender, using the username Micheal Markis, had a conversation with EB on Telegram in these terms (emphasis added):

Offender: I deleted the old chat

EB:   Ok JazakAllahu Khayr (May God reward you with the

good/goodness)

Offender:   Salam alaikom (Peace be upon you)

EB:   Wa Alaikum Asalam (And upon you peace)

Offender:   How are you going

EB:   Alhamdulillah akhi (Thanks/Praise be to God my brother) urself

Offender:   Good good alhundulilah (Thanks/Praise be to God)

EB:   whats new

Offender:   Wallah just waiting so far no one here has any religion

EB:   Imao Alhamdulillah (Thanks/Praise be to God)

EB:   what have u been eating

Offender:   Soup and stuff

Offender:   Soup and potatoes and cooking

EB:   Alhamdulillah (Thanks/Praise be to God) how long do us have to

wait

EB:   to get in

Offender: Soon in sha Allah (If God wills it)

EB:   lol i told some boys here amin still in turkey everyone shocked

Offender: Lol why

EB:   cAuse been so long

EB:   …

Offender:   Bro alhumdulilah (Thanks/Praise be to God) some people been here 6 months

Offender:   Theres pregnant woman and all

EB:   Alhamdulillah (Thanks/Praise be to God) have u met anyone else whos waiting

EB:   any westerners

Offender:   Yeah a couple of westerners the rest are all arabs

EB:   saudis ayy

Offender:   Suadis moroccons and Tunisians

EB:   hahahahahhaa

EB:   Alhamdulillah (Thanks/Praise be to God)

EB:   in shaa Allah (If God wills it) youll arrive safely

EB:   …

EB:   next thing we know ur on Al hayatmedis (Al-Hayat Media - a media arm of Islamic State)

EB;   media

Offender:   In sha Allah (If God wills it)

Offender:   Urn i need a big favour

EB:   tell me akhi (my brother)

Offender:   I need somebody to go past my mail box and see if theres moneybin there

EB:   money bin?

EB:   whats that

EB:   ill go after jummah (Friday prayer)

Offender:   Mail box

EB:   whats moneybin tho

EB:   what am ilooking for

Offender:   Money

EB:   Khayr (Good) ill go after jummah (Friday prayers)

EB:   or maybe before

EB:   which area guildford?

Offender:   Bass hill

EB:   alright ill see if i can make it if not ill send a bro to do it

EB:   if there is what should i do w it

Offender:   III get you to give it some one to send it to a mate of mine here

EB:   Khayr (Good) send ur addrrss ill see if i can make it

EB:   if not ill let uno

Offender:   Ok

Offender: [xx street] bass hill if you can let one of my mates know if you cant either

EB:   who

Offender:   The fat one

EB:   lol whats his name

Offender:   You know how I got charged

Offender:   Tell the chocolate man

15. On 19 June 2016 at 12.30am AEST the offender, using the username Micheal Markis, and EB had the following conversation on Telegram:

Offender:   Bro they threw me out on the street with all military equipment they even tried to rob over takfeer al athir (declaring as an unbeliever someone who themselves excuse unbelievers - often due to the unbelievers' perceived ignorance)

EB:   who akhi (my brother)

Offender:   The amir (commander)

Offender:   Im in the middle of the street with bags and i cant get a hotel

EB:   which amir (commander)

EB:   r u in turkey

EB:   go get a cheap sketchy hotel for now

EB:   jump in a cab

Offender: My passport is revoked

Offender: And im carrying all military studf

EB:   so what u gna do akhi (my brother)

Offender: I got to options im gonna knock the amir or go embassy

EB:   what u gna do at embassy

EB:   ??

Offender: Come back

EB:   Akhi (my brother)

Offender: Bro the amird here are all kuffar (unbelievers)

EB:   dont come back

Offender: They want to rob me because im not athir (one who excuses unbelievers based on their perceived ignorance)

EB:   Akhi (my brother) do what ever but don't come back wallahi (I swear

to God) u will bite ur nails for d rest of ur life

Offender: Some want me to give excuse of ignorance some want me not to make takfeer on athir (declaring as an unbeliever someone who themselves excuse unbelievers - often due to the unbelievers' perceived ignorance) i speak to amir (commander/religious leader) in sham (Syria) he didnt even help me

Offender: What am i gonna do there if this is dawlah aqeedah (Islamic State creed or articles of faith) its ridda (apostasy/rejection of Islam)

EB:   R u in dawla ('State', meaning Islamic State-controlled territory) or

turkey

Offender: I can get a house in turkey but i have to wait a month

Offender: Turkey

Offender: Can you speak to any body in dawlah ('State', meaning Islamic State-controlled territory) tell them my situation

Offender:   What am i gonna do get done with military equipment

EB:   ill get u contacts if i can In shaa Allah (If God wills it)

EB:   but why do u wanan come bake akhi (my brother)

EB:   wallahi there is no life expect under sharia (Islamic law)

Offender:   What sharia (Islamic law) tells me the grave worshipper is

muslim

EB:   bro whos saying this

Offender:   Im not sure but look what ive seen so far

Offender: They tried robbing me and kicking ne out over this the amir (commander) of the arab makar (base/ safe house) and the amir (commander) of makar 17 (base/safehouse 17) refused me

EB:   where were u

Offender:   In turkey

EB:   whos house was it

EB:   whos this amir (commander)

Offender:   Dawlah (Islamic State) house

Offender:   His abu Abdullah alhazairii

Offender:   Algerian

EB:   was he suppose to cross u over?

Offender: Yeah

EB:   what happen

Offender: They aske me if i give excuse of ignorance for shirk (associating someone/thing with God - polytheism) i told hem no

Offender: One of the people we pray behind is athir (someone who themselves excuse unbelievers) so I come late to pray so they figured out i wasnt praying behind him

EB:   Akhi (brother) y shoulda just bit ur tounge

EB:   i know bros who had dramas w amirs (commanders) to

EB:   sack d amirs (commanders) akhi (my brother)

Offender:   I did

EB:   ur going dawlah ([Islamic] State) for Allahs sake

Offender:   Exactly

EB:   alot of these amir (commander) are spinnas

Offender: Im going for allahs sake im not praying behind some murtad (Muslim who is considered to have left the faith) for Allahs sake

Offender:   I almost killed the amir (commander) he shit it

Offender:   I took my money of him by force

EB:   Try and find contacts to cross the border

EB:   do u know any Australians bros on d other side

Offender: I can cross the border in sahawat (awakening /dawn) but whats the point

Offender: If the amirs (commander) when i get there are gonna ask me to commit kuffar (likely means kufr - unbelief. Kuffar means unbelievers)

EB:   When u get there diff story akhi (my brother)

Offender: I need evidence at this stage

EB:   once u live in sharia (Islamic law) everything will change in shaa

Allah (if God wills it)

EB:   if u dont like it then up to u

EB:   but coming back to aus

EB:   is the worst thing anyone can do

Offender:   I want to stay herr

Offender:   Until i verify dawlah aqeedah (Islamic State creed or articles of faith)

Offender:   Even if i buy a Syrian passport 350

Offender:   I can stay here

EB:   Akhi (my brother) what u mean aqeedah (creed or articles of faith)

Offender:   Im kicked out of makar (base/safe house) theybtried to rob me

because i say grave worhsippors are kuffar (unbelievers)

Offender:   These are dawlah (Islamic State) amirs (commanders)

Offender:   Do you think im gonna fight for this

Offender:   If rather they all die and go to hell than agree to that

EB:   Idk akhi (my brother) if ur gonna give up hijrah (migration to Islamic

State territory) based on one amir (commander) you came across

EB:   Then idk what to say

Offender:   One amir (commander) try all of them

Offender:   They all know im stranded

Offender:   Tell me what to do

Offender:   My passport revoked i cant get passport

Offender:   Hotel

EB:   go to cheap sketchy hotels

Offender:   They need passport

EB:   all of them?

Offender:   And they all give you up and no one in dawlah ([Islamic] State) is helping

Offender:   What am i gonna do walk in and ask them do you need passport

Offender:   With a bag full of military equipment

Offender:   The only thing i can do is try knock the amir (the commander) and take the makar (base/safe house)

EB:   whats makar (base/safe house)

Offender:   The place we stay at

EB:   or yous can just sort it out

EB:   and bite your tongue

EB:   until u get to the other side

Offender:   Sort what out he wants me to say words of kufr (unbelief)

EB:   akhi just don't say nothing

EB:   literally just use him

EB:   to cross

EB:   be 2 face bro

EB:   akhi (my brother) this is hijrah (migration to Islamic State territory)

Offender:   How conditions they gave me is to say one of them is mulsim

EB:   its nothing small

Offender:   Im gonna kill him i know what he walks and when he leaves

Offender:   In sha Allah (If God wills it) this guy answers and gives me a house

EB:   fear Allah and leave it..

Offender:   Why hes murtad (Muslim who is considered to have left the faith) dog

Offender:   Hes blood is halal (permissible)

Offender:   Do you know what it means to sau mushrikeen (polytheists) are muslim

Offender:   You can only say this under torture

EB:   if u wna do that then go do a op on turkish military instead

Offender:   With what

EB:   what ever

Offender:   Halet ill grab a rock

EB:   lol

Offender: Lol

EB:   …

Offender:   Im not fasting

EB:   why

Offender:   Bro im walking carrying like 70 kilos im in the heat no makar (base/safe house) and the only place to sit is restaurants and i cant stay in one place

EB:   subhanAllah (Glory to God) may Allah make it easy for u

EB:   the sahaba (Prophet Muhammad's companions) had big trials to when making hijrah (migration from Mecca to Medina in 622CE) dont forget

Offender:   Ameen alhumdulilah wallah i domt care about anything

EB:   im gonna sleep now akhi (my brother) update me what happens

EB:   In shaa Allah (If God wills it)

Offender:   Ok jazaj allah kheir akhi (May God reward you with the good/goodness my brother)

EB:   Asalamu alaikum (Peace be upon you)

16. On 19 June 2016 at 9.28am AEST the offender, using the username Micheal Markis, had a conversation with EB as follows:

Offender: Salam (Peace)

Offender: Akhii (my brother) i found a solution

EB:   Wa Alaikum Asalam (And upon you peace)

EB:   which is

Offender: Stuff it d doesnt make takfeer on athir (declaring as an unbeliever someone who themselves excuse unbelievers - often due to the unbelievers' perceived ignorance) only after hujjah (incontestable evidence or proof)

EB:   so?

EB:   whats the solution

Offender: I found a hotel

Offender: Theres nothing i can do dawlah aqeedah (Islamic State creed or articles of faith) they say that the one who excuses the mushrikeen (polytheists) is muslim

Offender: Indeed the First view constitutes a false meaning.that is because Major Shirk (associating someone/thing with God - polytheism) has a reality and a characteristic, which if it is realised, the term "al-Mushrik" (the polytheist) is applied on one who mixes with it. And if we were to equate the One who stops short of making to One who worships other than Allah absolutely, it would necessitate making Takfeer on one who stops short of it certainly, because there is no excuse under pretext of Ignorance in Major Shirk. So the one who stops short of it (as per the view of the first side) is a Poltheist like the first. And it necessitates that the one who stops short regarding such [a person who stops short of making takfeer] (declaring someone to be an unbeliever) is also a Polytheist, and so forth.

EB:   so what r u gonna do?

Offender:   I dont know

EB:   akhi dont throw this opportunity make hijrah to dawla (Islamic State)

EB:   or ullregret it

Offender: How am i gonna make hijrah (migration to Islamic State territory) there

Offender: If me and them are on 2 completely different religions

Offender: Dawlah ([The] Islamic State) is nice and all but im not makeing hijrah (migration to Islamic State territory) there to pretend to be muslim

EB:   what ever akhi (brother)., nice talking to u Asalamu alaikum

Offender: No worries nice talking to you to

17. Later on that day at 10:55pm AEST the offender, using the username Micheal Markis, and EB had a conversation on Telegram as follows:

EB:   yeah

Offender:   Theres one direct way for me to get in

EB:   didnt u put them on the mushrikeen (polytheists), 1 hour ago

Offender:   Even if they end uo being mushrikeen (polytheists) its still better

EB:   Up to you ..

EB:   is ur passport canceled

Offender:   Tes

Offender:   Yes

EB:   When r u gonna go

EB:   To d

Offender:   Today or tomorrow

EB:   awesome

Offender:   I need 700 us

Offender: These dogs after we spent money on them they tried to rob me

…

Offender/EB:   cant help u with $ .

…

Offender / EB:      Im banned from the official way

…

Offender / EB:      Do u know what dw (don't worry)

18. On or about 21 or 22 June 2016, the offender was stopped by Turkish National Police in Istanbul and placed in immigration detention, as his Australian passport had been cancelled on 3 June 2016. In the meantime, his father had travelled to Turkey intending to bring the offender home. On 30 June 2016, the offender was deported from Turkey, back to Australia.

19. The offender arrived back in Australia on 1 July 2016. His bag was searched but nothing of interest was located. The police attended at the airport and asked the offender to participate in an interview but he said he was too tired to do so. The police also executed a person search warrant on the offender pursuant to section 3E of the Crimes Act, but nothing of interest was found.

20. On 4 July 2016 the police attended at the offender’s address in Bass Hill and asked him to participate in an interview which he declined.

21. On 3 November 2016 the police executed a search warrant at the offender’s premises where they seized a black Samsung Galaxy S5 mobile phone. The offender was again asked to participate in an interview but he declined.

22. On 22 December 2016 the offender attended Bankstown Police Station where he was charged with the present offence. He declined to participate in a record of interview. On the same day the police executed another search warrant at the offender’s premises where they seized a grey Samsung Galaxy S5 mobile phone.

23. An analysis of the two phones showed that the offender resumed his use of social media after his return from Turkey to have conversations with persons he had been in contact with prior to travelling to Turkey. In doing so he used a number of different names. The conversations themselves appear relatively innocuous. The point is simply that he continued to have this contact through social media with those persons, contrary to what one might have expected if he had abandoned his previous beliefs, a matter which I will discuss later in the judgment.

24. The Facebook page of Muhamad Dawah, a name used by the offender, revealed a number of posts and likes suggesting the offender holds extreme views or supports those that do, including the following:

i.   Liking the site of Shaykh Muhammad Abdul Jabbar, a British Salafist and active online preacher and proselytiser;

ii.   Liking a video lecture by Ahmad Musa Jibril, a Palestinian-American Salafist scholar whose speeches are popular amongst jihadis and foreign fighters;

iii.   Liking islamqa, an online Salafist source of religious guidance which propagates a conservative, fundamentalist interpretation of Islam and a sense of Islamic 'victimhood' at the hands of external oppressors;

iv.   Liking the site of Bilal Dannoun, a Sunni cleric, accused of preaching conservative Wahhabi-influenced Islam who refers to Shi'a Muslims as dissenters;

v.   Liking, following and posting about speakers proffering a narrative of Islamic 'victimology'; and

vi.   Liking Al Hayat Media Center, a media arm of Islamic State.

Objective seriousness

25. The Crown submitted that the offending in the present case was a very serious example of a very serious offence. The Crown submitted that the following factors are of relevance in assessing the objective gravity of the offending:

(a)   The nature and extent of the preparatory activity;

(b)   The state of mind of the offender;

(c)   The nature of the hostile activity intended; and

(d)   The depth and extent of the radicalisation of the offender.

26. The offender submitted that the offending was at the lower end of the range. Counsel for the offender noted that the period of offending was brief, that the offender was not part of an organised group, that his decision to travel to Turkey was opportunistic, impulsive, unplanned and reckless, and followed his leaving his family following an argument. Counsel for the offender submitted that the evidence does not show that the offender ever left Istanbul, that it shows that EB initiated most of the contact with the offender and that the offender ultimately showed hostility towards IS.

27. There are few cases giving direct guidance for foreign incursion offences. In R v EB I sentenced EB for the offence of intentionally performing services for the present offender in relation to the foreign incursion offence committed by the present offender. I also took into account a foreign incursion offence by EB.

28. In the course of sentencing EB I had regard to what was said by Bellew J in R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365 as having relevance for the present sort of offence. In that case Bellew J said at [25]:

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

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

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

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

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

29. In addition, in R v Alqudsi [2016] NSWSC 1227, Adamson J, when dealing with a predecessor of the offence of providing services, said at [83]:

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

30. In R v Biber [2018] NSWCCA 271 the respondent pleaded guilty to entering a foreign state, namely the Syrian Arab Republic, with intent to engage in a hostile activity in that foreign state, contrary to s 6(1)(a) of the Crimes (Foreign Incursions and Recruitment) Act1978 (Cth). That is a similar but not identical offence to the offence against s 119.4 of the Criminal Code.

31. The Court of Criminal Appeal said at [22]:

In assessing the objective seriousness of an offence under s 6(1)(a) where the relevant intent is to engage “in armed hostilities in a foreign State” it may be accepted, as the Crown submits, that it is necessary first to consider the nature and circumstances of the hostile activity intended to be undertaken, the means, methods and scope of any intended participation in those activities, the particular target or objective, if any, of the intended activities, and the apparent capabilities of the offender to achieve the intended objective, as well as the intended duration of the offender’s participation in the hostile activity. It is then necessary to assess the seriousness of that conduct by reference to where it sits in a range of proscribed conduct for which 20 years imprisonment is the maximum penalty.

32. I have also had regard to what was said by Whealy J at first instance in R v Lodhi [2006] NSWSC 691; (2006) 199 FLR 364 at [91]-[92], and also what the Court of Criminal Appeal said on appeal in that case (Faheem Khalid Lodhi v Regina [2007] NSWCCA 360; (2007) 179 A Crim R 470 at [79]), whilst noting that Lodhi was concerned with doing acts in preparation for the commission of a terrorist act.

33. Counsel for the offender sought to minimise what the offender did and intended to do by suggesting that the failure of the offender to respond to EB’s message of 3 June, and the terms of the conversation between the offender and EB on 5 June were consistent with the offender having changed his mind about entering Syria. Counsel also pointed to the fact that in the conversation on 5 June the offender does not seek assistance from EB. Rather, it is EB who offers it.

34. A very considerable difficulty for the offender in the present matter is that he did not give evidence at the sentence hearing. Matters which are to be found in an offender’s favour are to be proved on the balance of probabilities. The offender impliedly suggests that such proof is made out by reason of inferences that can be drawn from his failure to respond to messages from EB and from the fact that EB was offering the assistance. I am not prepared to draw those inferences. An examination of the conversations as a whole satisfies me beyond reasonable doubt that the offender had every intention of crossing into Syria until he had the falling out with the people at the IS safe house over seemingly theological issues. Even thereafter, in the last conversation with EB (at [17] above]), the offender told EB that he would be going to cross into Syria on that day or the next, and he asked EB to send him money.

35. The other significant matter from the earlier two conversations on that day (at [15] and [16] above) is that they show that the dispute between the offender and those at the safe house arose because the other supporters of IS at the safe house did not, as far as the offender was concerned, hold sufficiently extreme views against Muslims who were prepared to make allowance for non-believers. That is a matter I will need to consider when the issue of the offender’s ongoing beliefs are discussed hereinafter.

36. In my opinion, the offender had taken serious steps in the commission of the offence. Even if it is accepted that his decision to leave his parents in Dubai and travel to Turkey was made impulsively at that time, he had developed sympathies for IS from as early as 2014 when he was charged with an offence for which he was initially remanded in custody and then placed on stringent bail conditions, and in respect of which he was ultimately found not guilty. That appears from what he told the psychologist, John Machlin, and the psychiatrist, Dr Richard Furst.

37. It seems clear from what the offender told Dr Furst and Mr Machlin that he intended to enter Syria to provide support to IS to “come and take over the land. … Islamic State… protect the people better than other people would do it.”

38. Further, there was sufficient organisation in the offending, inasmuch as he was able to live for a period of time in an IS safe house and had managed to accumulate about 70 kilograms of military equipment. Contrary to the submission made on behalf of the offender, I am quite satisfied from all of the references to “military equipment” in the conversations, that the equipment did not consist of innocuous objects like a tent or sleeping bag because the offender told EB that he could scarcely walk into a hotel without a passport and “with a bag full of military equipment”. The fact that he had this military equipment points to the sort of support he was prepared to give to IS. Even after he fell out with IS, the offender was still talking to EB about going into Syria, “to defend Syrian Muslims against the Assad regime” as he told Dr Furst. The fact that he also told Dr Furst that he “was going to get killed anyway” suggests that he intended to take an active part in hostilities.

39. Further, having previously asked EB to go by his house in Sydney to collect some money that might have been in his letterbox, he told EB that there was one “direct way for me to get in” and that he was going on that day or the next day (19 or 20 June 2016). He then asked EB for US$700.

40. The offender’s contacts were such that he had a ”mate” in the place where he was in Turkey whom he trusted enough to receive the money he asked EB to collect and send to him. I reject the submission on behalf of the offender that, in effect, he was the passive party in the conversations with EB, and that EB was the person who initiated the arrangements. In the conversation on 5 June (at [13] above), the offender told EB that he had already spoken to someone in Turkey about making the Hijrah before the offender remembered who EB was. The matter was left on the basis that if that person couldn’t help the offender, the offender should let EB know.

41. Apart from a conversation on 5 June which arose from a misunderstanding, and during which nothing of substance was said, the offender does not then have a conversation with EB until 17 June (it is not clear who contacts whom), but the offender said that he would be getting in (to Syria) soon. All he apparently needed from EB was for EB to go by his house to see if there was money for him in his mail box. Until the offender was thereafter evicted from the safe house, the conversations suggest, and I find, that the offender had made the arrangements to cross into Syria without EB’s help. All of that points to contacts and connections in Turkey that must have involved at least a moderate degree of planning.

42. The extent to which the offender supported IS and its ideals are shown not only by the posts and likes on his Facebook page ([24] above), but also by the extreme views he took when in theological debate with the IS supporters in the safe house. He was, by June 2016, considerably radicalised and I conclude from the conversations he had with EB that he intended to engage in hostile activity when he entered Syria, given the military equipment that he had managed to acquire.

43. In short, the acts committed in preparation for incursion into a foreign country involved travelling to Turkey, living at the IS house, acquiring the military equipment, making the contacts to get entry into Syria, and seeking EB’s help on two occasions to have money sent to him to further his objectives. This took place over a two month period, so that any mitigation by reason of the impulsiveness of leaving his family in Dubai and travelling to Turkey is small. It is not without significance that he had the falling out with the people at the IS safe house because, to that time, there was nothing to suggest that he would not have pressed ahead with his intention to enter Syria with them or with their assistance. Even after that time, his intentions were only brought to an end because he was arrested by the Turkish police and put into immigration detention.

44. I assess the objective seriousness as being slightly below the mid-range of offending.

Subjective matters (S 16A(2)(m))

45. The offender was born in October 1989. At the time of the offending he was aged 26 years. Information about his background comes from a report of a psychiatrist, Dr Richard Furst, who examined the offender on 15 March 2019 and a report of a clinical psychologist, John Machlin, who examined him on 2 May 2019 and had previously examined him in relation to earlier offences in August 2018.

46. The offender was the third of four children in a Muslim family, having been born in Sydney. His parents migrated from Lebanon. The offender described being brought up in a “normal family”. He said that he got on "OK" with his parents and was close with his sister and two brothers. His parents were not especially religious, although they observed standard Muslim festivals including Ramadan and Eid. Shortly before the offending, the offender had travelled with them to observe the pilgrimage to Mecca.

47. The offender attended a number of schools in the western area of Sydney. He was forced to leave one school because of recurrent arguments with teachers and being involved in fighting. He ultimately left school after completing year 10.

48. Thereafter he worked on and off as a spray painter, a forklift driver, a truck driver and a courier. He was self-employed for two years doing bathroom renovations.

49. When he left school he began associating with an offending peer group. That led him into trouble with the law and at the age of 19 he was fined for having custody of a knife in a public place and having custody of an offensive implement in a public place, and placed on a bond for common assault.

50. In 2011 he was convicted of aggravated break and enter and commit serious indictable offence. He was sentenced to a period of imprisonment for two years and six months with a non-parole period of one year and three months. An offence of being armed with intent to commit an indictable offence was taken into account on a Form 1.

45. Whilst the offender admitted to Mr Machlin a history of cannabis use, he said it was infrequent and never heavy. Despite telling Dr Furst that he was not using drugs at the time of the offences for which he was imprisoned, I note that it was made a condition of his parole that he be subject to the supervision of a drug rehabilitation program, and psychological treatment.

46. His other offending includes being carried in a conveyance taken without the consent of the owner and possessing a prohibited drug which he told Mr Machlin was cannabis.

47. In November 2013, he was charged with some serious offences of personal violence. He was held in custody on remand for two months and was subsequently on stringent bail conditions for two years. Ultimately he was found not guilty of those offences. He told both Dr Furst and Mr Machlin that it was because of that experience that he became depressed and became interested in IS. He began following what was happening in Syria and he began to identify with the Syrian victims of the Assad regime. Both Mr Machlin and Dr Furst are of the opinion that he became radicalised during that period and that his offending was driven by extreme religious ideologies held by him at that time.

The offender’s beliefs

54. The offender told both Mr Machlin and Dr Furst that he has changed his beliefs in relation to IS, that he regretted his offending, renounced any previous IS affiliation and/or associated teachings, and accepted that his actions were wrong.

55. The offender wrote a letter to the Court which was provided to the Crown and the Court on the day of the sentence hearing. The letter states that at the time of the offending the offender did not comprehend the seriousness of what he was doing. He says that he has not been a supporter or member of IS since falling out with it in Turkey. He says that he blames himself and takes full responsibility for his actions, even though he was in a dark place. The letter complains about the conditions he is held under at the High Risk Management Correctional Centre (“HRMCC”) at Goulburn.

56. As I mentioned earlier, the offender did not swear an affidavit or give evidence at the sentence hearing. At the outset of the sentence hearing, I warned his counsel that if the offender did not give evidence I would have great difficulty in being able to accept his untested statements that he had changed his views.

57. In R v Ghazzawy [2017] NSWSC 474 Bellew J said at [70]

In circumstances where the offender has admitted, by his plea, to having committed an offence, proof of which required knowledge of a connection between his act and the preparation for a terrorist act, the abandonment of a previously held extremist ideology is plainly a factor to be established by the offender on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [25] – [28] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ). As set out in [38] above, the Court of Criminal Appeal in Elomar specifically noted (at [815]) that the sentencing judge had been justified in concluding that the failure of one of the offenders in that case to give evidence “meant that he had not discharged the onus of establishing, on balance, that he had given up the extremist views which he previously held”. In the present case, there is a similar absence of evidence from the offender and for the reasons previously expressed, little weight can be attributed to his statements to Ms Robilliard.

(See also Elomar v R [2014] NSWCCA 303; (2014) 300 FLR 323 at [815]-[818]; R v Khaja (No 5) [2018] NSWSC 238 at [81])

58. I am not satisfied on the evidence that the offender has changed his views or has changed his views significantly enough to make a difference to the approach I should take to his sentence. A number of matters inform that conclusion. First, as I have said, he did not give evidence. This is a significant matter which extends well beyond a consideration of remorse. It goes to the likelihood of rehabilitation and reoffending and is a consideration in relation to the concept of incapacitation, which is encompassed by the element of protection of the community, discussed by the Court of Criminal Appeal in Lodhi at [91]-[108]; see also Whealy J in Regina (C’Wealth) v Elomar [2010] NSWSC 10; (2010) 264 ALR 759 at [79].

59. Secondly, Dr Furst said that the offender had not had any access to a formal program of rehabilitation and/or de-radicalisation such as PRISM, or any more moderate religious teaching from the visiting Imam at the HRMCC which, Dr Furst said, would probably also assist “in moderating his previous extreme beliefs” and reduce the risk of further radicalisation in the future.

60. Thirdly, when the offender was outlining his views to Dr Furst about the regime in Syria, Dr Furst asked him about atrocities and terrorist attacks linked to IS. The offender’s response was that he did not trust the Western media’s reporting of such events, adding “you never get the full story”. It is hard to construe those statements as other than an attempt to explain away the behaviour of IS. It is not a response that encourages any conclusion that the offender has renounced his extreme views.

61. Fourthly, the recorded conversations with EB on 19 June 2016 demonstrate clearly to me that at least one significant reason why the offender fell out with those at the IS safe house was that he did not consider their Islamic beliefs to be as pure as his nor as rigorous as he considered that they ought to be. His statements to Mr Machlin and Dr Furst that he has renounced IS affiliation and/or associated teachings is not, in the light of that theological dispute, a statement that he has renounced his own extreme views.

62. Fifthly, the offender declined to stand when I entered and left the Court at the sentence hearing and today. It is sufficiently known that some persons holding extreme Islamic views refuse to stand in Court or give respect to the Courts in the usual way: R v Alou (No. 4) [2018] NSWSC 221; (2018) 330 FLR 402 at [236]-[241]; R v Azari (No 12) [2019] NSWSC 314 at [166]–[172]; Elzahed v Kaban [2019] NSWSC 670 at [13]; R v Hraichie (No. 3) [2019] NSWSC 973 at [281]; R v Dirani (No. 34) [2019] NSWSC 1005 at [224].

63. My conclusion that the offender has not shown that he has renounced his extreme views is relevant to three matters. The first is the protection of the community, not a matter listed in s 16A of the Crimes Act but a matter which the Court is certainly entitled to take into account: DPP (Cth) v El Karhani (1990) 51 A Crim R 123 at 130-131. Indeed, it is one of the significant matters to be taken into account in respect of offences of this type: Regina v Lohdi at [91]; Faheem Khalid Lodhi v Regina at [82]-[83], [88] and [274].

64. The second is remorse, rehabilitation and reoffending. These will be dealt with later. The third is deterrence, particularly specific deterrence.

Young offender principles

65. The offender claimed that principles associated with sentencing young persons were relevant. He claims that his immaturity mitigates the offence and that his youth made him more susceptible to influences which glorified the struggle against the Assad regime.

66. In my opinion, there is no basis upon which principles associated with young offenders are relevant. The offender was aged 26 years at the time of the offending. By that time he had acquired a criminal record including a 15 month period spent in custody. There is no evidence from the psychologist or the psychiatrist that his age made him more susceptible to the ideology that he embraced.

Criminal antecedents

67. I have earlier referred to a number of offences for which the offender has been convicted. There are two further offences which were committed whilst the offender was held on remand. They are two counts, contrary to s 60A of the Crimes Act 1900 (NSW), of assaulting a law enforcement officer, not a police officer, and inflicting actual bodily harm. The victims were two prison officers at the HRMCC. The offender was sentenced in one case to imprisonment for eight months and in the other to imprisonment for six months with both sentences being served concurrently and, in any event, served whilst he was on remand for the present offence. I will return to this matter when discussing the backdating of the present sentence. Whilst I do not think that those offences, when taken with his other criminal antecedents, amount to an aggravating factor, his criminal record generally entitles him to no leniency.

Character references

68. Seven character references were provided to the Court. Some of these were from family members and others from friends and work colleagues. All stress how out of character it was for the offender to have done the things that led to the present charge. All say that they are sure that the offender is remorseful. None discloses any knowledge of the offender’s past criminal record or of the fact that the offender spent some time in gaol in 2011 and 2012. Indeed, three work colleagues say that they met the offender in 2010, 2011 and 2012 respectively. The offender was sentenced on 29 July 2011 to imprisonment expiring on 11 June 2013 and with a non-parole period expiring on 11 March 2012. It can be assumed the family members knew of the offending and the gaol sentence. The absence of any statement of that knowledge from the others means that I can place limited reliance on those references.

Plea (S 16A(2)(g))

69. The offender pleaded guilty to the offence, albeit at the latest possible time. He had notified the Crown of his proposed plea during the weekend before the Monday his trial was due to start. The plea has some utilitarian value and facilitates the course of justice in that the time and expense of a trial was avoided, but it was entered in the face of what I consider to be a strong Crown case. Although it is not necessary to nominate a percentage, for transparency reasons I indicate a discount of 10%.

Remorse, rehabilitation and reoffending (S 16A(2)(f) & (n))

70. His plea of guilty is some small indication of remorse although, in the absence of sworn evidence from the offender, and given my conclusion in relation to the renunciation of his extreme views, the strength of the Crown case cannot be ignored as the main reason for the plea.

71. As I have already noted, despite the expressions of remorse to the psychologist, psychiatrist and in his letter to the Court, I am not satisfied, in the absence of evidence from him which could have been tested, that remorse is demonstrated. For the reasons I have already given, I am not satisfied that he has entirely abandoned the extreme views which he held before and at the time of the offending. As noted, he has not undertaken de-radicalisation courses nor had the influence of moderate religious teaching from Imams and others: cf EB at [65]-[67].

72. Renunciation of extreme ideological views and beliefs bears directly upon an assessment of the prospects of rehabilitation: R v Rahman; R v Mohammed [2008] EWCA Crim 1465; [2008] 4 All ER 661 at [28]-[32]; Ghazzawy at [68]. I consider his prospects of rehabilitation to be only fair. I also take into account in that regard various infringements of prison discipline including the assault on prison officers whilst he has been on remand, to which I will come later in these remarks. Whilst I do not consider that he is likely to reoffend by committing an offence of the type for which he is being sentenced, I cannot be sure that he will not reoffend by engaging in the sort of behaviour contemplated by s 119.4(5) of the Criminal Code of performing services for someone else who may themselves be offending or intending to offend against s 119.1 of the Code.

73. The offender claims that there was substantial delay in charging him from the time he arrived back in Australia on 1 July 2016. He was arrested and charged on 22 December 2016. The offender claimed that this operated unfairly against him. The offender submitted that the delay is relevant for two reasons. First, it is relevant to the extent to which an offender has achieved rehabilitation during the delay. Secondly, it constitutes a form of punishment in itself, given the anxiety and uncertainty of having the prospect of a sentence hanging over one's head. The offender claimed that he had achieved some rehabilitation during that six month period.

74. I do not consider there has been delay that should be taken into account. The offender declined to cooperate on a number of occasions with the police who sought to interview him. It is clear that further enquiries were continuing, demonstrated by search warrants. The offence was committed overseas, making investigation more difficult. There is no evidence that the offender achieved rehabilitation in the six month period.

Deterrence (S 16A(2)(j) & (ja))

75. Both general and specific deterrence must be given some weight for an offence of this type. In circumstances where I cannot find that the offender has renounced his extreme views and beliefs, specific deterrence must be given considerable weight. Although, as I have said, I do not consider that there is much likelihood of the offender reoffending in the same way, the fact that he has not renounced his beliefs could well result in him offending in other ways which could amount to assistance to those who would offend in the same or a similar way.

Co-operation (s 16A(2)(h))

76. So far from co-operating with law enforcement agencies, the offender declined on four occasions to participate in an interview with the police. Whilst he should not be punished for exercising an undoubted right to silence, his lack of co-operation does not weigh in his favour as a matter of mitigation.

Other matters in s 16A(2)

77. I have no evidence of matters referred to in paragraphs (c), (d), (e), (ea), (fa) and (p) of sub-s 16A(2).

Adequate punishment (S 16A(2)(k)) and commencement of the sentence

78. The offender was arrested on 22 December 2016. He has been held in custody since that date. Ordinarily, the sentence would be backdated to commence from that date: Crimes Act s 16E; Crimes (Sentencing Procedure) Act 1999 (NSW) ss 24(a) and 47(3). The applicant submitted, in that regard, that adequate punishment for the offence would be constituted by the period the applicant has spent in custody to the present time.

79. The complicating matter is the convictions for assaulting the two Corrective Services officers on 20 February 2018. The offender was sentenced for these offences by a magistrate at the Goulburn Local Court on 5 September 2018. For the first offence, he was sentenced to a period of imprisonment for eight months, and for the second offence, imprisonment for six months. Both sentences were to be served concurrently.

80. The offender submitted that the whole of the period of those sentences should be included in the period of pre-trial custody for the present offence. In effect, three reasons were offered for that submission. The first was that the offender was in custody for the whole period from 22 December 2016 referable to the present offence, even if part of the period also related to those other offences. Secondly, the offender submitted that as a result of the other offences he was subjected to extra-curial punishment in the form of various measures taken by Corrective Services including withdrawal of privileges and more rigorous confinement. Reliance was placed on a judgment of Graham ADCJ in Bassam Hamzy v R (District Court (NSW), Graham ADCJ, 21 Feb 19, unrep). Thirdly, the offender submitted that the offences were related to the present offending because they arose out of the conditions under which he was being held in custody, as disclosed in the report of John Machlin (referred to earlier).

81. The parties made detailed and helpful supplementary submissions in relation to this matter. None of the cases which have discussed the issue of backdating judgments deal with the situation in the present case although some were relevant by varying degrees of analogy. In my opinion, the matter is to be resolved by applying the principle of totality. That principle gives a wide discretion to the sentencing judge who is dealing with periods of custody referable to more than one matter: see also Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145 at [19]-[25].

82. I do not consider that either of ss 24 or 47(2) of the Sentencing Act requires me, in the circumstances, to backdate the sentence for the present offence to 22 December 2016. To do so would be to set at nought the sentences imposed for the s 60A offences: cf Regina v Karageorge [1999] NSWCCA 213 at [20]-[21] and [28] where the sentence for the other offence was set aside on appeal, with the result that the period spent in custody was referable only to the offence involving pre-sentence custody. In R v McHugh (1985) 1 NSWLR 588 Street CJ (with whom Hunt and Enderby JJ agreed) said (at 590) that where there has been “pre-sentence custody exclusively referable” to the offence for which the offender is to be sentenced, the sentence should ordinarily be backdated to the commencement of that custody. There is no reason to think that ss 24 and 47(2) intend anything different.

83. In relation to extra-curial punishment, the offender asserted through an affidavit of his solicitor that he was punished by over 100 days in segregation; loss of access to the exercise yard; loss of amenities, being access to a kettle, a cooker and a television; and his buy-up expenditure was reduced from $70 to $40 per month. An affidavit from Geoffrey Poulsen, a Senior Assistant Superintendent at the HRMCC explains each of those deprivations. He sets out documentary material showing that the loss of amenities was unrelated to the offences concerned; rather, they arose from two earlier infringements of prison discipline by the offender in relation to the items of which he was subsequently deprived. From the circumstances of the infringements, the offender must have known that those deprivations were unrelated to the assaults. It is troubling that untruthful material is put before the Court by the offender through his solicitor when he has been unprepared to give evidence himself about anything related to this sentencing exercise.

84. Mr Poulsen said that the segregation and reduction in buy-up expenditure arose from the offences concerned. The former was to manage safety, security and for the management of good order and discipline in the prison. The latter was because the offender was regressed to a lower Behaviour Management Level (BML) as a result of the incident. (He had by that time been regressed as a result of one of the earlier incidents.) Mr Poulsen said that neither segregation orders nor BML reviews are considered as inmate discipline. They relate to management of inmate risk and behaviours. He said that restriction of access to the exercise yard cannot be imposed as a penalty.

85. Even if the segregation order and the BML regression can be considered as extra-curial punishment, I note that the Magistrate expressly took that into account. His Honour said:

In relation to Sequence 1, which was the offence that resulted in the fracture [of the officer’s finger], your sentence is one of eight months. It has come down from 12 months for your pleas and also noting that extra curial punishment.

If I were to make further allowance for any extra-curial punishment, the offender would be receiving a double credit.

86. The decision in Hamzy is not relevant. That case involved an application for a stay of charges in the Local Court that arose out of a s 60A offence committed in custody. Although a permanent stay was granted, there were two significant differences from the present matter. First, the stay was sought and granted before the sentence had expired. Secondly, the judge said that a further consideration for whether relief in the form of a permanent stay should be granted was that the offence was at the lower end of the scale of objective seriousness. The facts disclose that the assault was no more than a technical one. When being escorted to his cell handcuffed, the prisoner shaped up to a prison officer. There was, as the judge found, no battery.

86. That is a long way from the facts in the present case. The facts disclose an unprovoked assault on one prison officer that led to a melee involving four prison officers whilst they tried to restrain the offender. All four of the officers were injured, two being taken to hospital, one with a broken finger. The circumstances that are said to have led to the offending are discussed by Mr Machlin in his report. While the offending cannot be excused, on what Mr Machlin was told it appears to have arisen out of the extreme frustration that the offender was feeling from his isolation in that custodial institution and his perception that he had been treated unfairly. The offender’s failure to give evidence makes it difficult to assess the truth of what he told Mr Machlin, but I am prepared to accept that the conditions under which the offender was being held may have caused him to erupt in the way he did as set out in the facts relating to the s 60A offences.

The sentence

88. I am satisfied that no other sentence than a sentence of imprisonment is appropriate in this matter. I have regard to the maximum penalty for the offence and to the fact that the maximum penalty was increased from 10 years under the earlier form of the legislation to life imprisonment for the present form of the offence in 2014.

89. There are few cases which provide much guidance for offences of the present type. I have had regard to the helpful list provided by the Crown Prosecutor including R v Biber [2018] NSWCCA 271; R v Alqudsi [2016] NSWSC 1227; The Queen v Amin Mohamed [2016] VSC 581; R v Succarieh; R v Succarieh; Ex parte Commonwealth Director of Public Prosecutions [2017] QCA 85; (2017) 266 A Crim R 420; Director of Public Prosecutions (Cth) v Hassan El Sabsabi [2017] VSCA 160; my own decision in R v EB and to the judgment of Hamill J in R v Taleb (No 5)(Sentence) [2019] NSWSC 720. Although the last of those decisions concerns the exact same offence, the circumstances of the offender were so significantly different from the present offender as to make the case not comparative.

90. Section 19AG of the Crimes Act requires me to set a non-parole period of at least ¾ of the sentence because this offence is defined as a terrorism offence. As in the matter of EB, this provision in the present case works against the interests of the community because it limits the period of time the offender will have on supervised parole when his circumstances require that supervision. I found that even though EB had renounced his extremist views, the sentence imposed did not permit a sufficient period for him to be supervised for an appropriate period of time. In the present case, I am not satisfied that the offender has renounced his extremist views. He needs a considerable amount of time to be de-radicalised, perhaps with the assistance of moderate Imams, so that he no longer presents any sort of threat to the community. On the other hand, I cannot impose a sentence that is not an appropriate one (s 17A of the Crimes Act) simply to achieve an adequate parole period.

91. I take account of the harsh conditions in which the offender has been held at the HRMCC, and the fact that he is likely to continue to be held under those conditions. Having particular regard to deterrence and the protection of the community, I consider that the appropriate sentence, after the discount for the plea, is one of five years and five months’ imprisonment. There will be a non-parole period of four years and one month. Although the offender went into custody on 22 December 2016, an adjustment to the commencement date must be made for the sentences imposed for the assaults of the corrective services officers. The sentence will commence on 22 April 2017.

92. Amin Elmir – for the offence of committing acts in preparation for incursions into a foreign country for the purpose of engaging in hostile activities, contrary to s 119.4(1) of the Criminal Code (Cth), I sentence you to imprisonment for five years and five months commencing on 22 April 2017 and expiring on 21 September 2022 with a non-parole period of four years and one month expiring 21 May 2021.

93. That sentence means that you must spend until 21 May 2021 in custody. Section 19AG of the Crimes Act does not permit me to shorten that period to enable you to spend longer on parole. You will be eligible for parole on 21 May 2021, and if parole is granted you will serve the remainder of your sentence in the community. Your parole will be subject to conditions. If you breach those conditions your parole is liable to be revoked and you may be returned to custody to serve out the balance or part of the balance of your sentence.

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

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Amendments

16 August 2019 - Typographical error on title page.

16 June 2023 - Publication restriction lifted.

Decision last updated: 16 June 2023