R v Elomar

[2010] NSWSC 10

CITATION:	Regina (C'Wealth) v Elomar & Ors [2010] NSWSC 10
HEARING DATE(S):	14/12; 16/12; 17/2; 18/12; 19/12/2009
JUDGMENT DATE :	15 February 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	MOHAMED ALI ELOMAR, I sentence you to a term of imprisonment of 28 years commencing on 8 November 2005 and expiring on 7 November 2033. I fix a non-parole period of 21 years in respect of that sentence to commence on 8 Novemner 2005 and to expire on 7 November 2026. The period of 21 years is the minimum period the offender must serve in custody. KHALED CHEIKHO, I sentence you to a term of imprisonment of 27 years commencing on 8 November 2005 and expiring on 7 November 2032. I fix a non-parole period of 20 years and three months in respect of that sentence. The non-parole period is to commence on 8 November 2005 and is to expire on 7 February 2026. The period of 20 years and three months is the minimum period the offender must serve in custody. ABDUL RAKIB HASAN, I sentence you to a term of imprisonment of 26 years commencing on 8 November 2005 and expiring on 7 November 2031. I fix a non-parole period of 19 years and six months in respect to that sentence. The non-parole is to commence on 8 November 2005 and to expire on 7 May 2025. The period of 19 years and six months is the minimum period the offender must serve in custody. MOUSTAFA CHEIKHO, I sentence you to a term of imprisonment of 26 years commencing on 21 December 2005 and expiring on 20 December 2031. I fix a non-parole period of 19 years and six months in respect of that sentence. The non-parole period is to commence on 8 November 2005 and is to expire on 7 May 2025. The period of 19 years and six months is the minimum period the pffender must serve in custody. MOHAMMED OMAR JAMAL, I sentence you to a term of imprisonment of 23 years commencing on 21 December 2005 and expiring on 20 December 2028. I fix a non-parole period of 17 years and three months. The non-parole period is to commence on 21 December 2005 and is to expire on 20 March 2023. The non-parole period of 17 years and three months is the minimum period the offender must serve in custody.
CATCHWORDS:	CRIMINAL LAW - Sentence after trial - conspiracy to do acts in preparation for a terrorist act - Commonwealth offence - Terrorism offence - Principles applicable to sentencing - Application of parity principles by analogy - Objectively grave offence - not far short of most serious case - Absence of remorse and contrition - Absence of withdrawal from extremist convictions.
LEGISLATION CITED:	Criminal Code Act (Cth) Crimes Act 1914 (Cth) Anti-Terrorism Act 2005
CATEGORY:	Sentence
CASES CITED:	Tyler v R [2007] 173 A Crim R 458 Diesing v R [2007] NSWCCA 326 Regina v Lodhi [2006] NSWSC 691 at [79-81] Regina v Touma [2008] NSWSC 1475 24 October 2008 Faheem Lodhi v Regina [2007] NSWCCA 360 at [92-93] per Spigelman CJ R v Martin (1999) 1 Cr App R (477 at 480) R v Araya [2005] NSWCCA 283 Van Haltren v R [2008] NSWCCA 274
PARTIES:	Regina (C'Wealth) v Mohamed Ali ELOMAR Rgeina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohammed Omar JAMAL
FILE NUMBER(S):	SC 2007/2399001; 2007/2400001; 2007/2392001; 2007/2398001; 2007/2452001
COUNSEL:	R Maidment SC; G Bellew SC; C O'Donnell; S McNaughton - Crown D Dalton SC; E Ozen - Offender Elomar D Yehia SC; S Beckett - Offender Hasan C Waterstreet; P Lange - Offender K Cheikho R Button SC; I Nash - Offender M Cheikho G Scragg; D Carroll - Offender Jamal
SOLICITORS:	C'Wealth DPP - Crown Nyman Gibson Stewart - Offender Elomar Legal Aid Commission - Offender Hasan Lawyers Corporation Ltd - Offender K Cheikho William O'Brien & Ross Hudson Solicitors - Offender M Cheikho Michael Doughty Solicitors - Offender Jamal

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

MONDAY 15 February 2010

2007/2399001 - Regina v Mohamed Ali ELOMAR
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2452001 - Regina v Mohammed Omar JAMAL

SENTENCE

1 HIS HONOUR: On 3 November 2008, five men pleaded not guilty to an indictment alleging participation in a conspiracy to do acts in preparation for a terrorist act or acts. A joint trial then commenced lasting almost 11 months. On 16 October 2009, each man was found guilty by the jury of the single count in the indictment.

2 The five men were: Mohamed Ali Elomar, Abdul Rakib Hasan, Khaled Cheikho, Moustafa Cheikho and Mohammed Omar Jamal. For the purposes of these sentencing decisions, I will refer to the men, collectively or individually, as the offender or offenders. I will, in addition, refer to them by their names where it is more appropriate to do so.

3 Sentencing submissions were made during the week commencing 14 December 2009. Those submissions concluded on Friday 18 December 2009. The sentencing proceedings in relation to each offender was then stood over until today for pronouncement of sentence.

4 The offence in respect of which each offender has been convicted carries with it a maximum penalty of life imprisonment.

Background to the present trial

5 Each offender is one of nine men who were originally arrested and charged in late 2005 with a series of terrorism related offences. In the Supreme Court, an indictment was presented against each of the nine men in May 2007 alleging that each offender had conspired with each other to do acts in preparation for a terrorist act or acts. Each of the nine men on that date pleaded not guilty to the charge. Each had been committed for trial at an earlier date following a lengthy committal hearing.

6 The trial of the conspiracy charge against the nine accused was set down for hearing to commence in late February 2008. It was apparent at that time that several months might be required for adjudication upon pre-trial matters. As it happened, those pre-trial procedures lasted much longer than anticipated. Some eight months were to elapse before the trial proper could proceed. It was not until 27 October 2008 that the preliminary processes relating to the selection and empanelment of the jury were able to commence. Those procedures themselves, as might be anticipated, took some little time and the jury empanelment proper did not take place until 3 November 2008.

7 Shortly prior to the commencement of the trial before the jury, three of the original nine accused had pleaded guilty to charges contained in fresh indictments presented against each of them. Mazen Touma pleaded guilty to four charges contained in an indictment presented against him on 12 September 2008. An agreement had been reached between the Crown and the representatives for Touma in this regard. The Crown had indicated that, in view of Touma’s willingness to plead guilty to the four charges in the new indictment, the Director of Public Prosecutions would not proceed further against him in relation to the more serious conspiracy charge.

8 On 24 October 2008, Mirsad Mulahalilovic, one of those charged originally as a co-conspirator, pleaded guilty to a single charge contained in a fresh indictment presented against him on that day. The new charge was that Mulahalilovic, on or about 19 August 2005, possessed a small quantity of firearm ammunition, which was connected with the preparation for a terrorist act or acts, being reckless as to the connection.

9 On 3 November 2008, a third man, whom I shall simply refer to as “B” pleaded guilty to four charges contained in a fresh indictment presented against him on that day. Once again, as with the other two men, the Crown indicated that it would not proceed against B in relation to the conspiracy charge in the light of his decision to plead to the matters contained in the fresh indictment.

10 Finally, it is necessary to mention that a fourth man, Khaled Sharrouf, originally charged as one of the co-conspirators, had been found unfit to plead. It was common ground that he had been afflicted by a serious mental disorder both at the time of the commission of the offence and during 2008. This led to the Court making an order that he be separately tried. That order was made on 15 September 2008. In 2009, however, Sharrouf appeared to have recovered his health sufficiently to be available to face trial. By that time, it was common ground between his legal representatives and the Crown that he was, in fact, fit to plead and face trial. As a result of negotiations between his representatives and the Crown, Sharrouf pleaded guilty to a fresh charge on 3 August 2009. The offence charged was that he possessed some six clocks and 140 batteries, which were connected with the preparation for a terrorist act, he knowing of that connection. It was an offence, which carried a maximum penalty of imprisonment for 15 years. As before, the Commonwealth Director of Public Prosecutions accepted Sharrouf’s plea to this lesser charge on the basis that there would be no continuation of the conspiracy charge against him.

11 Each of the persons who pleaded guilty was sentenced in relation to the offence or offences to which he had pleaded. Touma was sentenced in late 2008. The other three were sentenced on various dates in 2009. The remaining five men who had been originally charged with the conspiracy offence remained resolute and adhered to their “not guilty” pleas. Consequently, the jury trial which began in late 2008 required the resolution of a number of issues at trial involving the essential elements of the conspiracy charge in the light of the individual pleas of not guilty. Those issues, as I shall explain, were to be resolved by the jury’s verdict in October 2009 in favour of the Crown.

Issues at trial

12 The principal issues at trial may be simply stated: First, during the relevant period, did a conspiracy of the kind alleged by the Crown exist? Secondly, if it did, was each offender a participant in that conspiracy? The Crown carried the onus of proving each of those matters beyond reasonable doubt. The essential defence raised by each offender was that, even if such a conspiracy were in existence, which was denied, he was not a party to it. Others may have been, but he was not.

13 As part of the resolution of these simple and stark issues, the Crown undertook and bore as well the more extensive burden of proving beyond reasonable doubt that each offender held the necessary intentions required by the definition of “a terrorist act” contained in the Criminal Code Act (Cth). To succeed, the Crown had to establish each of these intentions on the part of an offender so as to satisfy the jury that the criminal agreement into which he had entered was one to do acts in preparation for a terrorist act or acts.

14 The jury’s verdict in the case against each offender meant that it had been satisfied beyond reasonable doubt that a conspiracy to do acts in preparation for a terrorist act was in existence at the relevant time. Further, it must have been satisfied beyond reasonable doubt that each offender was a willing participant in that agreement. Further, the verdict necessarily meant that the jury was satisfied that, first, each offender intended that acts in preparation would be for an action or threat of action to be carried out or threatened in Australia involving either or both the detonation of one or more explosive devices, or the use of firearms. Secondly, the jury must have been satisfied to the requisite degree that the action or threat of action would itself carry the intention or object of advancing the cause of violent jihad so as to coerce or influence by intimidation the Australian Government to alter or abandon its policies of support for the United States and other western powers in Middle Eastern and other areas involving Muslims. Thirdly, each offender must have intended that the acts in preparation would be for an action or threat of action which, if carried out, would have caused at the very least serious damage to property and would have carried the further risk of physical harm to members of the public, danger to the lives of the public or a section of the public, and the creation of a serious risk to the health or safety of the public or a section of it. Each of these intentions was necessarily established beyond reasonable doubt to the satisfaction of the jury. That is to be recognised in the jury verdict against each offender.

The nature and scope of the conspiracy

15 While the assessment of the criminality of each of the offenders will not overlook, as a relevant matter, his particular act or acts in furtherance of the conspiracy, it is clear that the criminality of an offender in a conspiracy case goes well beyond the mere recognition of his or her actions and role in the enterprise. The primary aspect of the assessment of individual criminality is well understood to be on a broader basis. The gravamen of the offence – the essential feature – is the agreement to participate in organised criminal activity. The sentence must reflect the organisational nature of the conspiracy rather than by confining the sentencing discretion to the identification of the role of an offender with specific reference to the physical acts that he undertook (Tyler v R [2007] 173 A Crim R 458; Diesing v R [2007] NSWCCA 326). It is necessary, as a consequence, to examine the nature and scope of the conspiracy and to assess on a basis, generally common to all the participants, the level of criminality exhibited by the conspiracy itself. It needs to be kept in mind that the jury’s verdict reflects the finding that each of the offenders in the present matter was a willing participant in an organised criminal enterprise that had specific criminal objects in view as the outcome of the enterprise. I turn now to examine these matters in some degree of detail.

Duration of the conspiracy

16 The indictment charged each offender on the basis that the conspiracy to do acts in preparation for a terrorist act or acts was in existence between July 2004 and 8 November 2005. Although it is always difficult in cases such as this to pin point the commencement date of a conspiracy, the Crown in its final reply submissions on sentence, suggested that the Court might safely infer beyond reasonable doubt that the conspiracy existed at least between 4 May 2005 and 8 November 2005. In my opinion, however, the evidence establishes beyond reasonable doubt that the conspiracy was on foot at least by January/February 2005. There is evidence that might suggest an earlier commencement time in the previous year. But it is sufficient for the purposes of the sentence to find beyond reasonable doubt that the conspiracy was certainly on foot, as I have said, by January/February 2005 and that it continued until about the time of the arrest of the offenders on 8 November 2005.

Ordering/collection of ammunition

Ordering/collection of ammunition – Nature and scope of conspiracy

17 On 27 January 2005, Elomar paid $2,100 deposit for the purchase of 10,000 rounds of 7.62 x .39 ammunition. I am satisfied beyond reasonable doubt that this ammunition, when it was acquired, was to be used in connection with the conspiracy. 1,000 rounds of the ammunition were collected by Elomar from the Horsley Park Gun Shop on 30 March 2005. The balance of the 10,000 rounds were collected on 26 May 2005. As it happened, Elomar was under suspicion. A search warrant was executed at his home on 27 June 2005 during which 11,755 rounds of 7.62 x .39 ammunition was seized. Also taken were 12 different types of firearms including rifles and pistols. These were all licensed. The only weapon found at Elomar’s place that would be capable of firing the assault type ammunition I have mentioned was a Zastava rifle. I am satisfied beyond reasonable doubt that the ammunition was not to be used in this bolt-action rifle but was to have been used in other automatic or semi-automatic weaponry yet to be acquired. If it was in existence, it has never been located by the authorities.

18 During the period April to June 2005, another of the men connected with the enterprise, Mazen Touma, had been involved in the purchase of a large quantity of 7.62 x .39 ammunition. For example, on 1 April Touma arranged for the purchase of some 8,000 rounds of the ammunition. This purchase was to be made through an intermediary of Touma. His name was George Lord. The collection of 7,500 of the 8,000 rounds took place on Friday 3 June 2005. On that day, the police seized the 7,500 rounds from a van parked near George Lord’s house. It is clear that Touma intended to make a delivery of the ammunition on the afternoon of 3 June 2005 but the police seizure interrupted, frustrated and brought to an end these plans. The evidence did not indicate the identity of the person or persons to whom delivery was to be made. However, there were a series of telephone calls between Khaled Cheikho and Touma between April and June 2005. These calls culminated in a series of calls on 2 and 3 June 2005 between the two men. I am satisfied beyond reasonable doubt that Khaled Cheikho was aware of and complicit in the obtaining by Touma of 7,500 rounds of ammunition which were then seized by the police on 3 June 2005. The ammunition was suitable for use in an assault rifle such as that known as an AK-47. I am satisfied beyond reasonable doubt that the acquisition and delivery of the ammunition was to be for the purpose of the conspiracy. I shall later deal with the Crown submission, disputed by Mr Waterstreet, that Khaled Cheikho was a co-ordinator for this anticipated supply.

19 The seizure of the ammunition from Elomar and from Touma’s van was plainly a set back for the conspiracy. It is not insignificant to note that the man “B” (who had assisted Touma in connection with the collection of the ammunition from George Lord) made enquiries of his own in late July 2005 concerning the possible acquisition of substantial quantities of 7.62 x .39 calibre ammunition. These enquiries, it appears, were not followed through to completion. “B” was to make a number of further enquiries about the acquisition of ammunition during the period August to late October – early November 2005. As will be seen later, Elomar had a special relationship with “B” in the latter part of 2005. He was, in effect, “running” “B” in relation to certain activities in connection with the conspiracy.

Purchase of laboratory equipment

20 Of greater significance for the purposes of understanding the nature and scope of the conspiracy were the attempts by some of the offenders, and/or persons associated with them, to obtain laboratory equipment and chemicals that might be used in the manufacture of an explosive device or devices. One of the associates of a number of the offenders was a Melbourne cleric known throughout the trial as Sheikh Bakr. He was a person who espoused beliefs which were unequivocally extremist and which supported the prospect of violent jihad in Australia. Hasan, Elomar and Moustafa Cheikho had met Sheikh Bakr as early as August 2004. The Sheikh appears to have been particularly close to Khaled Sharrouf. He also appears to have been the spiritual leader of a number of Melbourne men of a similar extremist bent. These included men known as Aimen, Ahmed and Fadl. On 23 February 2005 Hasan and Khaled Sharrouf visited Sheikh Bakr and Aimen in Melbourne. There was a mention, during the discussion, of items of laboratory equipment contained in the Haines Secondary School catalogue. These discussions were caught on a listening device. On 26 February 2005, a false name telephone service (the Eviki Soto Telephone Service) was activated. A handset used by Hasan was associated with this service. The false name details of Eviki Soto corresponded with Hasan’s birth date. This phone was used to communicate with the man Aimen after 23 February 2005. It was also to be used in connection with a camping trip to be held in a remote location in New South Wales (“Curranyalpa”).

21 On 4 May 2005, Elomar, Hasan and Sharrouf travelled from Sydney to Melbourne. The men visited Sheikh Bakr’s residence on a number of occasions before departing for Sydney on 5 May 2005. While in Melbourne, there was a lengthy discussion involving Hasan, Elomar and others that concerned the ordering of laboratory equipment listed in the Haines catalogue. The Sheikh was also a participant in the conversation. Shortly before 2 June 2005 a male person using the false name of “Peter Dravjic” rang Haines and discussed faxing through to the company an order for laboratory equipment. On 2 June 2005, a faxed order was sent from a fax machine at Sayers Road Pharmacy, Hopper’s Crossing, Victoria. This pharmacy was located a short distance from Aimen’s premises. The order was in the name of “Peter Dravjic”. The manager of Haines received a follow up call in relation to this order from a male person who gave a contact number. This was a telephone service that had been activated on 14 June 2005 in a false name. The receipt for this telephone was later located at Hasan’s premises on 27 June 2005 during the execution of a search warrant. The transaction with Haines was never completed and the equipment was not collected. The reasons for this are unclear. It is clear beyond doubt, however, that Aimen had placed the order and, as will appear, it was done with the help and approval of Hasan and Elomar.

22 Search warrants were executed at Sheikh Bakr’s place, and at Aimen’s home as well, in June 2005. During the search of the latter’s home, a handwritten document listing items of laboratory equipment was located. This document was clearly compiled from the Haines catalogue. Importantly, it generally corresponded with the items mentioned in the discussions that had previously occurred between Hasan, Elomar, Sharrouf, Aimen and Sheikh Bakr as to what items were to be ordered and the quantities of those items. Hasan’s and Aimen’s fingerprints were found on the document. The document was in the handwriting of Elomar. On 27 June 2005 a search warrant was executed at Elomar’s premises. One item seized was a USB stick containing instructions in Arabic for the manufacture of explosives (“The Illustrated Encyclopaedia”). As I have earlier mentioned, firearms and ammunition were also seized. There was also a document found on a CD entitled “Security and Intelligence” which included various topics related to the manufacture and detonation of various improvised explosives. They included step by step instructions on how to manufacture explosives such as TATP and HMTD, with details and advice as to how to source the ingredients for the explosives, and how to extract and prepare them for use.

23 On 26 July 2005, one Khalid Vetter and another man (alleged by the Crown to be Hasan) attended the New Directions store at Marrickville. The men were involved in the purchase of laboratory equipment. It was a reasonably substantial order and the equipment was taken away at the conclusion of the transaction. On 18 October 2005, Vetter returned to the store with another man. There was no dispute that, on this occasion, the other man was Hasan. However, no purchases were made on this visit. A search warrant was executed at the home of Khalid Vetter in November 2005 and laboratory equipment, consistent with that purchased from New Directions, was found underneath his home. Vetter maintained that the equipment was for his perfume business, although the search details disclosed that some of the New Directions laboratory equipment was by then missing. It was not located elsewhere in Vetter’s house. I am satisfied beyond reasonable doubt that the Melbourne attempts to obtain an extensive range of laboratory equipment (including thermometers containing mercury) were attempts to obtain equipment for the making of explosive devices. Similarly, even if it were not Hasan who went with Vetter in July 2005 to New Directions (a fact in dispute), the equipment purchased was plainly to be used for the purposes of the conspiracy, at least in part.

Attendance at camping trips

24 The authorities detected the attendance of a number of the offenders at two camping trips in remote parts of New South Wales. The first was the Curranyalpa trip between 16 and 18 March 2005. This camp was booked, as I have said, in a false name using a false name phone service. In attendance were Hasan, Elomar, Khaled Cheikho, Sharrouf and three of the Melbourne men Aimen, Fadl and Ahmed. The second trip occurred between 12 and 14 April 2005. The booking was once again made in a false name and use was made of a false name telephone service. Present at the camp were Elomar, his son, Hasan, Khaled Cheikho, Moustafa Cheikho and Touma. The camp was booked in the name of “Andrew Scott”. Moustafa Cheikho apparently introduced himself upon arrival as “Andrew Scott”. The camps were appropriately labelled by the Crown as “bonding trips”, but they were held in locations where there could be no surveillance of the men’s activities or their discussions with one another. There was some shooting at each camp, apparently principally organised by Elomar.

Purchase of chemicals

25 Between 28 September 2005 and 5 November 2005, Hasan and, to a lesser extent, Jamal, were involved in the ordering of chemicals. On 28 September 2005, Hasan and Jamal attended Auto King and placed orders for battery acid and distilled water. They left two false name phone services. One of the latter services had been activated on that day. It appears to have been created as a dedicated phone service for the purchase of chemicals. Hasan paid $200.00 deposit in cash. Later in the day there was an attendance at Chemical Cleaning Solutions at Campsie. The person ordering chemicals at that location used the name “George” and gave the false name phone number “George Markis” for contact purposes. The person who placed this order was, however, Jamal. On the same day, Hasan attended Peter’s Hardware at Greenacre and ordered 60 litres of acetone. He paid a deposit in cash and gave his name as “Adam”. Jamal went to Peter’s Hardware in early October 2005 and enquired about the progress of the acetone order placed by Hasan on 28 September 2005. He left the “George Markis” phone number on this occasion.

26 On 13 October 2005, Jamal and another unidentified man attended Auto King and collected the distilled water which had been ordered on 28 September 2005. Jamal and the other man then went to Autoquip to collect the sulphuric acid which had been ordered on 28 September 2005. However, it was not collected. It was available for collection but it appears possible that the conversation there may have “put the wind up” Jamal. At least the Crown had suggested at trial that this may have been the case. In any event, from that time onwards, it appears Jamal had no further connection with the ordering or collection of chemicals.

27 Hasan continued with his endeavours to purchase chemicals. During the week of 17 October 2005, Hasan attended Padstow Station Hardware and enquired about placing an order for methylated spirits and acetone. He provided the name “Adam” and gave a phone number that was close to the number of the “George Markis” service. Once again, a deposit was paid in cash. On 22 October 2005, Hasan collected the 16 litres of acetone from Peter’s Hardware. On 1 November 2005, Hasan returned to Padstow Station Hardware and paid $670 cash for a chemical order (acid/acetone) and made arrangements to collect it on 5 November 2005. Purely by accident, Hasan had been observed by an off-duty police officer at the Padstow Station Hardware store. Clandestine arrangements were made with the proprietor to keep the store under scrutiny in the event that Hasan returned to collect the order.

28 In fact, Hasan returned to Padstow Station Hardware on the morning of 5 November 2005. Video surveillance captured his movements around the store and finally, obviously suspicious, he was seen to leave without collecting the order. The car he had been driving on that occasion was a Musso vehicle FDT-113. It had not been hitherto detected by surveillance. I am satisfied beyond reasonable doubt that this was a car used deliberately by Hasan to escape surveillance. Two days after Hasan’s arrest, the vehicle was found abandoned in Bankstown. Items in the car included a number of containers of “Refresh” brand distilled water (those being the same brand as the items purchased at Autoquip), and a 5-litre container of hydrogen peroxide. There were also two shovels, two mattocks and a rake, and four very detailed topographic maps covering a relatively remote part of the Blue Mountains, west of Sydney. There was also found an Esky and a book entitled “Fortress of the Muslim” on which were located Jamal’s fingerprints. Similarly there was a map with Jamal’s fingerprints on it. There was also DNA analysis of items from the vehicles which targeted the man “B.”

29 A second Musso vehicle ATE-40N was found abandoned in Bankstown on 8 February 2006. It clearly had been in that location for some time. There were items found in the vehicle linked to a number of the offenders. There were also items that demonstrated that the vehicle had been used for camping or other related purposes. Once again, this was a car that had not previously come under police surveillance. As with the first Musso, it had plainly been used in connection with some type of concealment activity in rural areas. Both vehicles were registered to one Kalaam Ahmed Syed, a person who had arrived in Australia on 25 February 2003 but departed for India on 6 August 2005. His address was given as The Boulevarde, Lakemba.

Concealment and other activities occurring at the end of the period of the conspiracy

30 Between July 2005 and 8 November 2005, the activities of the man “B” increased markedly. Another man, Mulahalilovic, came into the picture at this stage. For example, on 19 August 2005, Mulahalilovic purchased $433.00 worth of 7.62 x 39 ammunition. “B” purchased quantities of hydrogen peroxide at two pharmacies on 22 September 2005. Unfortunately for him, he was detected by surveillance in these activities. He told the shop assistant at one of the pharmacies that the chemicals were for his grandmother. In late October “B” made a number of enquiries about chemicals and ammunition. He also made enquiries in relation to the delivery of chemicals that had been ordered by Hasan. In early November 2005, “B” went to Discount Mania and purchased tape. He and Mulahalilovic bought PVC end caps as did “B’s” wife. On 3 November 2005 Elomar, Moustafa Cheikho and Sharrouf went to Bunnings for tape and Sabco containers. Later that day Elomar went to Ronnie’s Hardware store and bought five containers. Still later that day, Mulahalilovic went to Bunnings for 6-metre PVC pipe, priming fluid etc. These and other transactions in early November were, plainly enough, preliminary steps in an operation to conceal and keep from detection items or materials collected in connection with the conspiracy. There was an escalating fear that either raids or arrests were imminent.

31 I should also mention that earlier police had seized 24 x 400ml bottles of hydrogen peroxide which, quite by accident, had been discovered behind Sharrouf’s house. It is clear that this was an order that had been collected from the Menai Pharmacy in June 2005 following a purchase in a false name. The Crown had alleged that Moustafa Cheikho was the purchaser of this order, although it must be said that the identification evidence in this instance was not overly reliable. Khaled Sharrouf’s home, however, was only a short distance away from the home of Moustafa Cheikho. Whoever was the purchaser, it is clear that the hydrogen peroxide was acquired for the purposes of the conspiracy.

32 On 19 August 2005, the Kingmax USB which had been seized from Elomar’s home had been returned to Elomar and his niece, Oula Awad. On that day “The Illustrated Encyclopaedia” was deleted from the memory stick. This was a rather clumsy attempt to distance Elomar from the damaging material, contained on the memory stick. Other material, of an innocent kind, was not deleted.

33 On 22 August 2005, a false name service in the name “Mark Jenkins” was activated. This was the service used by Elomar to send text messages to “B’s” false name service. On 3 September a further false name service was activated namely, the “John Pham” service. This again was a false name service used by Elomar to contact Khaled Cheikho’s false name service, the “Tom Clincley” service. On 28 September 2005, the date when Jamal and Hasan commenced their chemical purchasing, the “B” false name service and the “Mark Jenkins” service commenced “coded” SMS texting. The coding took the form of messages from fictitious persons, usually arranging a date or discussing going to a nightclub etc. The other two services I have mentioned commenced their coded SMS texting on 31 October 2005. Overall, the series of messages were designed to arrange meetings, to facilitate transactions and to arrange finance when necessary. The codes used were designed to lull an unaware observer into thinking the arrangements were purely social interactions of an innocent kind between sweethearts or pals.

34 On 3 November 2005 at 3.30pm the “Mark Jenkins” service messaged the Khaled Cheikho false name service enquiring after some rolls of silver tape. On that same afternoon, as I have said earlier, Elomar, Moustafa Cheikho and Khaled Sharrouf were at Bunnings at Bankstown and were involved in the acquisition of silver tape and containers. On two occasions “B’s” false name service contacted Elomar’s false name service and asked for money. This was plainly in connection with the purchasing and enquiries being made by B on behalf of the conspiracy.

35 On the evening of the day when Hasan had fled the Padstow Station Hardware area, and had failed to collect the ordered chemicals, Elomar visited Hasan at his home and was there for several hours. During this time Elomar’s service contacted the false name service of “B”. Their conversations, however, were not picked up. This meeting and telephone contact was plainly significant in the light of Hasan’s fears that he had been detected. It clearly confirmed the need for urgent concealment and the taking of evasive action.

36 On 7 November 2005 Elomar and a number of the other men met at a solicitor’s office. All the offenders were arrested in the early hours of the morning on 8 November 2005. Jamal was allowed to leave but was later re-arrested and charged on 21 December 2005.

37 The above material represents a very condensed version of the facts relied on by the Crown in support of the proof of its case as to the scope and nature of the conspiracy. There were many other facts and items which I have not troubled to either identify or summarise. There was, for example, a very considerable body of surveillance evidence. The principal effect of this evidence was to show a very close association between the offenders over a considerable period of time. The second area I have not endeavoured to summarise was the listening device and the telephone intercept material. It was, as might be expected, voluminous. Once again it shows the very close association between the men. It also portrays, on occasions, very extremist views being expressed by some of them. I will however endeavour, as best I can, to summarise briefly the instructional and extremist material found at the home of the offenders, including material in disc form or on the hard drive of their computers. This material is important for an understanding of the state of mind of the offenders and, particularly, the states of mind which supported their individual actions in furtherance of the conspiracy. It also gives a particularly compelling insight into the nature and scope of the conspiracy.

Instructional material

38 The material found on the USB flash drive at Elomar’s home contained recipes for the making of explosives using nitro-glycerine, hexamine, hydrogen peroxide, acetone and sulphuric acid (battery acid). There were also instructions for making a detonator from acetone and peroxide. There were also recipes for explosives made from fertilizer and mercuric fulminate. This material assumes particular significance when regard is had to the range of chemicals and equipment either procured or enquired about by the conspirators during 2005. Information contained on disc at Elomar’s home included extensive compilations dealing with “Security and Intelligence”, particularly in the context of Islamic jihad. This material focused on sabotage, kidnappings, counter-surveillance and, indeed, assassination. There was other material on disc containing extensive information on the making of bombs and the use of weaponry. There were detailed image files as well.

39 Material accessed on Khaled Cheikho’s computer included “First Introduction to Explosives”. This Arabic material detailed, for example, the ways in which battery acid might be obtained and used for explosives. It contained recipes for combining battery acid, hydrogen peroxide and acetone to form a dangerous explosive. There were other recipes as well. Other downloads accessed on this computer included details of instructions to the Mujahideen in relation to waging jihad against the enemy. This material ranged from the mundane (getting physically fit) to the more serious (making detonators and bombs). On Christmas Day 2004, a publication called “The Terrorist Handbook” was accessed on Khaled Cheiko’s computer. Although lampooned by Mr Waterstreet for Khaled Cheikho in relation to some of its contents and its somewhat “tongue in cheek” commentary, the booklet, nevertheless, contained a considerable range of working and workable recipes for dangerous explosives including those made from chemicals such as mercury (obtained from thermometers), sulphuric acid (obtained from batteries) and gun powder (from ammunition). There was expert evidence during the trial which demonstrated that the recipes, if followed, were capable of producing effective explosive devices.

40 Khaled Cheikho also had at his home a book entitled “The Layman’s Guide to Electronic Eavesdropping: how it’s done and simple ways to prevent it”. There were also instructional and educational articles in relation to basic electronics and electronic projects. In February and March 2005, Khaled Cheikho’s computer had accessed electronic files related to Kalashnikov weaponry. This was the type of weapon which might be used to fire 7.62 x 39 ammunition. There was evidence that Khaled Cheikho was not himself interested in shooting or camping. For that reason, his research on his computer took on a particular significance in this regard.

41 Moustafa Cheikho also had at his home a copy of the book entitled “The Layman’s Guide to Electronic Eavesdropping”. An electronic file found on Moustafa Cheikho’s computer on 8 November 2005 contained a document with the message “Log on and learn how to bomb via an ohmmeter plus mobile phone in one illustration”. There was also a diagram of an electrical circuit connecting a mobile telephone, ohmmeter, battery and explosives (Exhibits 1023 and 1024). There was debate at trial as to whether these, without more, could possibly work. But there is no doubt the material illuminates Moustafa Cheikho’s interests and his activities in those areas in relation to the conspiracy.

42 Each of the offenders had, either on his computer or in disc form, instructional material in the nature of military handbooks. For example, electronic copies of the “Sniper Handbook” were found on computers and/or media seized from the premises of each of the offenders. (Similar electronic copies were also found at the premises of “B”, Sharrouf and Touma). There was also survival planning and survival kits found in electronic form at the homes of each of the offenders. Each of Hasan and Moustafa Cheikho had at their homes editions of a book by John Lofty Wiseman entitled “SAS Survival Handbook”.

Extremist or Fundamentalist material

43 Each offender had at his home, in one form or another, a vast quantity of extremist or fundamentalist material. Some of this was in hard copy form but the bulk of it was in electronic form, either on hard drive or discs or both. One particular feature of this trial was the fact that a considerable volume of extremist material was held by each offender in common with the other conspirators. This was referred to throughout the trial as “the commonality material”. It was analysed in considerable detail and there was no dispute about the commonality aspect. The offender Hasan gave evidence that the CDs and other material he had at his home or which were copied on to his computer were simply unsolicited handouts made at the Prayer Hall or Mosque. I reject that evidence completely. It is clear to me that the common holding of this vast body of material among the offenders and their close associates is powerful evidence of the sharing amongst them of material which reflected their jointly held extremist views. They may not have read, viewed or digested every article or image, but generally they would have been aware of or appreciated the overall nature of the material.

44 A summary of the media commonality material may best be expressed by reference to three groupings. The first group was contained on two DVDs described in the evidence as “Seized media commonalities extracts” or SMCE. The DVDs contained an extract (but only an extract) from the common files that were found during the various searches. The first DVD contained an images section and a video section. There were 139 images found to be common to one degree or another across the offenders and the alleged co-conspirators. The video section contained extracts from 18 video files which were found to be common to a number of the hard drives and/or discs seized. The second DVD contained 19 documents in the document section and six audio files in the audio section.

45 The second “group” was contained on a CD prepared to supplement the extract material. This CD was described as “Seized media commonalities supplement CD” or SMCS. It contained a number of images – 314 in all – common to a number of the discs and hard drives found during the seizures. It also contained some 12 videos and audio files exhibiting varying degrees of commonality. There were also some 216 document files which were provided to the jury in hard copy format. There were some seven large folders containing these documents.

46 The images on the SMCE DVD themselves fell into a number of categories. First, there were images showing injured or deceased Muslim civilians and/or soldiers. The images were clearly designed to evoke sympathy and distress from Muslim viewers. The second category contained “slogans” relevant to the destruction of the Twin Towers in 2001 and images of the actual destruction and its aftermath. For example, image 10 was of an aircraft cockpit with a slogan “Mohammed Atta – nobody move. Everything will be OK. If you try to make any moves, you will endanger yourself and the airplane. Just stay quiet”. In disc or hard drive format this image was common to each of the offenders, with the exception of Elomar. There were similar images glorifying the 9/11 hijackers. There was one describing them as “The magnificent 19”. This was common to Moustafa Cheikho, Hasan and Jamal.

47 The third category of images on the “extract” DVD contained images of Islamist identities. They included, as might be expected, Osama bin Laden and Zarqawi. There were a number of others, all heroes of the jihadist movement. The fourth category contained a number of images of military conflict, generally showing Americans and their Allies being killed or wounded in combat. For example, image 41 shows a downed helicopter on fire. It was common to all of the offenders. Finally, there were images of Muslim prisoners being badly mistreated or manhandled by their captors.

48 The video files in the two groups, that is on both the “extract” DVD and the “supplement” CD, included a number showing the execution of hostages or prisoners by Mujahideen. These were particularly brutal, distressing and graphic. It is impossible to imagine that any civilised person could watch these videos. So disturbing were they that none of the executions was shown to the jury. The preliminaries to the execution of a Korean prisoner in one video were shown but without audio content. That was the extent of it. Otherwise the jury were simply given a written description of the videos and their contents. These videos were common to a number of the offenders, although it is clear Jamal did not view the one execution video found at his home. The documents in the “extract” DVD included, for example, interviews with Osama bin Laden and numerous articles justifying, over and over again, the pursuit of jihad towards “disbelievers”.

49 Generally speaking, the images on the “supplement” CD fell into the same categories I have identified. They included, however, inspirational images of Chechnyan leaders training their troops. Generally, the images appear once again to be designed to evoke both sympathy and anger in the Muslim viewer. They appear designed to create anger and hatred against the United States and its Allies, and to inspire satisfaction and rejoicing at the victories of the Muslims over the “infidel”. The videos, as I have said, once again contained a number of beheadings or executions. The document files contain Islamist exhortations to jihad, for example, “Jihad the Forgotten Obligation – Join the Caravan” was common to all five offenders, as was “Defence of the Muslim Lands”. Other common documents included “Fundamental Concepts regarding Al-Jihad” and the “bin Laden Epistle – Declaration of War”. There were also the Military Handbooks to which I have made earlier reference. At the homes of Moustafa Cheikho, Hasan and Jamal were discs containing a document entitled “Australian Government – Transnational Terrorism: The Threat to Australia”. Saved to the hard drives of the computers of Khaled Cheikho, Moustafa Cheikho and Hasan was a document entitled “The Parliament of the Commonwealth of Australia: Anti-Terrorism Bill 2005”. This document was saved to the respective computers of the three men on either 15 or 16 October 2005.

50 The third “group” of material comprised miscellaneous extremist exhortations of one kind or another. For example, there was a video common to all the offenders entitled “American Pigs Killed.wmv”. This was a video of a truck exploding with considerable force, presumably killing its American occupants. There was also a video entitled “Badr.wmv”. This was an Al-Qaeda instructional video about the 2003 Riyadh bombings. It was in Arabic and showed the assembly and detonation of an improvised explosive device. In one format or another it was available to all the offenders, with the exception of Elomar. Hasan, who did not speak Arabic to any degree, had still images from this video in pdf form on his computer as at 8 November 2005.

51 There was also a CD known as “Iraq War” CD. It was a CD containing three video files containing a good deal of disturbing imagery from the Iraq war. It was common to all the offenders, save for Jamal.

52 I will mention briefly the contents of two files in this third grouping. First, was an audio file found on disc at the homes of all offenders, with the exception of Elomar. It was entitled “The Islamic Verdict on the Madrid Bombing”. This file was principally in English. It appears to be a dialogue between the principal speaker (who may have been an Islamic cleric) and his audience concerning “the success” of the Madrid bombings. In part, the dialogue suggests that the Madrid bombings might be properly seen as an act of revenge for the expulsion of the Muslims from Andalusa many centuries earlier. But the principal message is that the bombings had brought about a change in contemporary Spanish Government policy. It was in that regard that the bombings were seen by the speaker and his audience as primarily successful. At one point, the principal speaker said:-

“Obviously, those types of operation are effect of a particular cause. That cause is the occupation of Muslim land in Afghanistan, in Iraq and as well in Chechnya and around the world. But in order ourselves to see what happened last week in Madrid, we need to understood that Mujahideen did give warning to the Governments of the West and to European community, that is, we are going to retaliate for your own aggression. No longer your soldiers can live in our country or can occupy our country and killing women and children…and go back to their own camps and sleep peacefully because they going to hear their own family back home under attack and that it will break the psyche of their own soldiers… that (is) what happened on Madrid”.

53 The file continues by justifying the death of civilians in Madrid with reference to the death of civilians in Afghanistan at the hands of the United States aircraft and their ground bombings. It accuses the “coward American soldiers” of bombing people in Afghanistan and Iraq, and of being “the real terrorists”. Later the speaker reminds his audience that “bin Laden told the world that the jihadists were going to attack a number of countries”. Here, he specifically mentions Australia. The Madrid bombings, he says, sent the message that Al-Qaeda not only continues to exist but to thrive, and that it is willing to target the homelands of other countries. Finally, the speaker says: -

“We gave the Spanish people a choice between war and peace. They choose the peace by their own choosing the right party who was against the alliance with the Americans in its own war against Islam”.

54 The article confirms that jihad is no longer to be confined to Palestine or Chechnya or Iraq. Importantly, it is to be “sent back” to any country which is involved in attacking or supporting the attack against Muslims anywhere in the world. These sentiments, I might add, are, plainly enough, completely consistent with the intentions I have found were held by each of the offenders, intentions which were, in turn, consistent with, and indeed dictated by, the jury’s verdict in this trial.

55 A final brief reference may be made to an instructional video file found on media seized from the premises for all of the offenders with the exception of Elomar. It was principally in Arabic but there was one brief segment on the video where a masked Mujahideen speaks in English with a very obvious Australian accent and says “You kill us, so you will be killed. You bomb us, so you will be bombed”. This is an overly simplistic but reasonably accurate summation of the mindset of each of the offenders in this trial. It is the mindset that prompted the entry of each man into the conspiracy and, no doubt, motivated his actions in relation to the furtherance of the enterprise.

Objective seriousness of the offence

56 The objective seriousness of the offence committed by each offender is primarily to be gathered by reference to the criminality of the enterprise upon which they were each engaged. Consistently with the jury’s verdict I find that each offender was completely committed to the outcomes of the enterprise to do acts in preparation for a terrorist act or acts. I find that the notions willingly and fully embraced by each individual offender, and shared jointly between them, included the following: First, each was driven by the concept that the world was, in essence, divided between those who adhered strictly and fundamentally to a rigid concept of the Muslim faith, indeed, a medieval view of it, and to those who did not. Secondly, each was driven by the conviction that Islam throughout the world was under attack, particularly at the hands of the United States and its allies. In this context, Australia was plainly included. Thirdly, each offender was convinced that his obligation as a devout Muslim was to come to the defence of Islam and other Muslims overseas. Fourthly, it was the duty of each individual offender, indeed a religious obligation, to respond to the worldwide situation by preparing for violent jihad in this country, here in Australia.

57 The task required by the criminal enterprise was to equip the conspirators individually and jointly, with the knowledge, the ability and the means to prepare for or to enable a terrorist act or acts to be carried out in Australia. The intended purpose of that act or those acts would be to instil terror and panic in the Australian community, and thereby to force the Australian Government to change its alliances and policies overseas. The terrorist act or acts contemplated involved the detonation of one or more explosive devices, or the use of firearms, or both. It was plainly intended that this act or those actions would be of a major kind and that they would be effective to secure the objects of the enterprise.

58 Now, it is true that the evidence does not establish that any firm conclusion had been reached as to matters such as the precise nature of the action which was to be carried out, or its target or targets. Moreover, the evidence does not establish who would actually prepare the bomb or bombs in its or their final form. Nor does it establish who would detonate the explosive or explosives or in what circumstances that would occur. The prompt action by the authorities meant that the enterprise was interrupted at a relatively early stage of its implementation.

59 It is accepted by counsel for each offender that the act constituting the offence was the intentional act of each offender in entering into the agreement to participate in the planned terrorist activity. In those circumstances, it is proper to approach consideration of the sentencing process by having regard, so far as one can, to what would have happened had the intended terrorist act or acts actually occurred, in the light of the intentions of each offender. In this case, the nature of the contemplated terrorist act or acts can be seen from the type and variety of materials collected or sought to be collected. The intentions of the individual offenders can be gleaned from their words and conduct and from the extremist and instructional material held by them or shared between them. The objects of the conspiracy, as a whole, can be plainly understood from the whole of the material and events I have earlier summarised.

60 A consideration of those matters satisfies me beyond reasonable doubt that each offender intended that the terrorist act or acts, for which preparation was being undertaken, would involve action that, at the very least, was intended to cause serious damage to property. Such act or acts, involving the use of assault ammunition and explosives, would be highly likely to endanger the life of members of the community and, at the very least, create a very serious risk to the health and safety of members of the public. While I cannot be satisfied beyond reasonable doubt that any of the offenders intended directly to kill or take human life, it is clear beyond argument that the fanaticism and extremist position taken by each offender countenanced the possibility of loss of life, if that were to occur. The offenders’ collective disdain for the Australian Government and their intolerant animosity towards members of the community who were not of a like mind to themselves made such an attitude inevitable, even if the proposed act or action were limited to an explosion or explosions directly intended to cause serious damage to property. There is not the slightest justification for thinking that the contemplated act or action might have been limited to the setting off of an explosion in some isolated rural area. Each conspirator intended that the ultimate act or terrorist act was to be an effective one, one that would make a significant difference to the Government and the community. It would also be a meaningful expression of their own anger and frustration, as they saw it, directed towards the Australian people’s unfair attitude to Muslims.

61 An examination of the individual acts carried out by each of the offenders in furtherance of the conspiracy shows that each of those acts was necessarily central to, and important for the purpose, of the fulfilment of the agreement to which each offender was a party. Each offender unequivocally and voluntarily adhered to the objects of the criminal enterprise. Each offender carried out his tasks in that regard resolutely and in complete defiance of the authorities. The Crown submitted that this was evident from the increase in activity on the part of the offenders following the execution of search warrants in mid-2005, and the further increase in such activities (particularly activities relating to concealment of items) in the latter part of 2005, at or about the time of the passing of relevant amendments to the Anti-Terrorism legislation. As I have said, copies of that legislation were found on the computer of Khaled Cheikho and also on the computers of Moustafa Cheikho and Hasan. Other persons involved in the enterprise expressed, in this latter phase, a fear that their homes would soon be raided, as indeed, they were.

62 It is necessary to add into this complex mix the large quantity of extremist material in the possession of each offender. It is fair to see this as a reflection of each offender’s ideology, his inspiration and motivation in the pursuit of the extremist cause of violent jihad. Mr Dalton SC submitted before the jury that a person is not what he reads. That is true, in general terms, but here the sheer volume of extremist material, and the particular fact that it was held in commonality among the offenders, is very telling as to the existence of a shared mindset.

63 The mindset evinced by all this material may be summarised as follows: First, a hatred of the “KUFR”, that is those Muslims and non-Muslims who did not share their extremist views. Secondly, an intolerance towards the democratic Australian Government and its policies. Thirdly, a conviction that Muslims are obligated by their religion to pursue violent jihad for the purposes of overthrowing liberal democratic societies and to replace them with Islamic rule and Sharia law. This criminal enterprise was not in any sense motivated, as criminal activities so often are, by a need for financial gain or simply private revenge. Rather, an intolerant and inflexible fundamentalist religious conviction was the principal motivation for the commission of the offence. This is the most startling and intransigent feature of the crime. It sets it apart from other criminal enterprises motivated by financial gain, by passion, anger or revenge.

64 It will be apparent from the foregoing considerations that the level of criminality involved in the present conspiracy was far more substantial than the criminality involved in the individual acts of each offender, such as might have warranted the bringing of individual substantive charges against him. Matters indicating the added level of criminality involved in the conspiracy include the following: -

(a) The formation of an agreement (and the entry into it) by a group of people to acquire materials that might subsequently be used for the carrying out of terrorist act or acts is of its nature likely to be more advanced than a sporadic individual acquisition.

(b) A conspiracy, involving the joint effort of a number of like-minded individuals, is more likely to succeed than the isolated actions of an individual.

(c) In addition, a conspiracy involving a number of people acting at different times, different places and in different ways is much more difficult to detect.

(d) Importantly, a conspiracy of the present kind is much more difficult to shut down. As can be seen from the facts I have found, where one member of the conspiracy was detected buying ammunition, another person, perhaps unheralded prior to that time, moves in and acts in furtherance of the conspiracy. The conspiracy is like a Hydra, a multi-headed monster. When one head is removed, another simply springs up in its place.

(e) Most importantly, the overall extremist zeal of a group venture is more enduring, more fanatical, more determined, more resourceful and ultimately likely to be more successful than an individual acting alone. That was the case here where, for example, a number of acquisitions have effectively been hidden from the view of the authorities and still remain concealed to this day. Chemicals, piping, firearms, ammunition, mobile phones and laboratory equipment remain out of reach of the authorities and may be able to be used, if not by the offenders, then perhaps by those who are still at large and who may remain sympathetic to the conspiracy and its aims.

Pronouncement of sentence

179 I turn now to pronounce sentence on each offender.

180 As a preliminary, it is necessary for me to state that s 19AB of the Crimes Act 1914 (Cth) enables the Court in the present circumstance to fix a non-parole period where a head sentence is imposed on each offender. It is appropriate in my view, that a non-parole period be determined in relation to the sentence to be imposed on each offender. The purpose of the non-parole period is to provide a mitigation of the punishment of the offender in favour of rehabilitation through conditional freedom. While I have determined that the prospects of rehabilitation are poor in the case of each offender, I nonetheless determine that it is appropriate that he be given the opportunity to achieve rehabilitation. The non-parole period, however, must incorporate all relevant sentencing principles including denunciation and deterrence.

181 Section 19AG of the Crimes Act 1914 (Cth) requires that, for an offence of the present kind, the Court must fix a non-parole period at a percentage of at least three-quarters of the sentence. The Court may increase the percentage above three-quarters of the sentence but it has no capacity to restrict the non-parole period below that percentage. While there are arguments that might be advanced to suggest that, in the case of each offender, the non-parole period should be fixed at a higher percentage than the minimum three-quarters mentioned in the section, I have decided ultimately that the non-parole period may appropriately be set at the percentage I have mentioned. No submissions were made by the Crown to suggest otherwise and, in those circumstances, I do not think it proper that I intervene to alter the minimum percentage.

182 It will be a matter for the Attorney-General of the day to determine whether any of the offenders should be released at the expiry of the non-parole period. That may depend upon each offender’s behaviour in prison. It may depend upon the extent of rehabilitation evidenced, if any, or upon the Attorney-General’s view as to whether each offender has, after serving a lengthy non-parole period, renounced the extremist views which underlay the commission of the serious crime involved in this trial. Even if released at the end of the substantial non-parole period, each offender will undoubtedly be subject to conditions that will enable scrutiny of his rehabilitation and his renouncement of extremist convictions. Any breach of those conditions would require the offender to be returned to prison to serve the balance of the term of the sentence.

183 Mohamed Ali Elomar, I sentence you to a term of imprisonment of 28 years commencing on 8 November 2005 and expiring on 7 November 2033. I fix a non-parole period of 21 years in respect of that sentence to commence on 8 November 2005 and to expire on 7 November 2026. The period of 21 years is the minimum period the offender must serve in custody.

184 Khaled Cheikho, I sentence you to a term of imprisonment of 27 years commencing on 8 November 2005 and expiring on 7 November 2032. I fix a non-parole period of 20 years and three months in respect of that sentence. The non-parole period is to commence on 8 November 2005 and is to expire on 7 February 2026. The period of 20 years and three months is the minimum period the offender must serve in custody.

185 Abdul Rakib Hasan, I sentence you to a term of imprisonment of 26 years commencing on 8 November 2005 and expiring on 7 November 2031. I fix a non-parole period of 19 years and six months in respect of that sentence. The non-parole period is to commence on 8 November 2005 and is to expire on 7 May 2025. The period of 19 years and six months is the minimum period the offender must serve in custody.

186 Moustafa Cheikho, I sentence you to a term of imprisonment of 26 years commencing on 8 November 2005 and expiring on 7 November 2031. I fix a non-parole period of 19 years and six months in respect of that sentence. The non-parole period is to commence on 8 November 2005 and is to expire on 7 May 2025. The period of 19 years and six months is the minimum period the offender must serve in custody.

187 Mohammed Omar Jamal, I sentence you to a term of imprisonment of 23 years commencing on 21 December 2005 and expiring on 20 December 2028. I fix a non-parole period of 17 years and three months. The non-parole period is to commence on 21 December 2005 and is to expire on 20 March 2023. The non-parole period of 17 years and three months is the minimum period the offender must serve in custody.

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