R v Fattal - [2011] VSC 681

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1631 of 2009
No. 1628 of 2009
No. 0092 of 2010

THE QUEEN

WISSAM MAHMOUD FATTAL,
SANEY EDOW AWEYS AND
NAYEV EL SAYED

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial: July 21, 23, 27, 28, 29, 30 August 2, 3, 5, 9, 12, 16, 18, 19, 23, 24, 25, 26, 27, 30, 31 September 1, 2, 3, 7, 8, 9, 10, 13, 14, 15, 16, 17, 20, 21, 22, 23, 24, 27, 28, 29. October 1, 2, 5, 6, 8, 11, 12, 13, 14, 15, 18, 19, 20, 21, 25, 26, 27, 28. November 3, 8, 9, 10, 11, 12, 16, 17, 18, 19, 22, 23, 24, 25, 26, 29, 30, December 2, 6, 7, 8, 9, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 2010. Plea: 23 March, 5, 6 May, 31 August 2011
DATE OF SENTENCE:	16 December 2011
CASE MAY BE CITED AS:	R v Fattal et al.
MEDIUM NEUTRAL CITATION:	[2011] VSC 681

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Conspiring to do acts in preparation for or planning a terrorist act contrary to s 11.5(1) and s 101.6(1) of the Criminal Code (Cth). Proposed attack on Holsworthy Army Base, intention of advancing political, religious or ideological cause. Seeking Fatwa from overseas clerics, likelihood of conspiracy being completed, varying roles of accused, distinguishing factors, youth. Maximum penalty – life imprisonment. Sentence – 18 years Minimum - 13 and a half years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N Robinson SC with Mr D Gurvich	Ms Megan Hood Office of Public Prosecutions
For the Accused Fattal	Mr P Tehan QC with Ms N Kaddeche	Beth McKenzie/Gabriela Pulczynski, VLA
For the Accused Aweys	Mr M O’Connell SC with Ms N McGarrity	Ms Bridget Coath Robert Stary & Associates
For the Accused El Sayed	Mr A Trood	Ms Michelle Mykytowycz Slades & Parsons

HER HONOUR:

Wissam Mahmoud Fattal, Saney Edow Aweys and Nayev el Sayed, you were charged together with Abdirahman Mohamud Ahmed and Yacqub Khayre with one count of conspiring to do acts in preparation for or planning a terrorist act contrary to s 11.5(1) and s 101.6(1) of the Criminal Code (Cth). On 23 December 2010, after a trial lasting approximately six months, Abdirahman Mohamud Ahmed and Yacqub Khayre were acquitted of the offence and you three, were convicted.

At the request of your counsel pleas were first listed to be heard on 23 March 2011, and were adjourned, again at the request of the defence, until 5 May 2011, at which stage the first of the plea hearings commenced and continued through to 6 May 2011. A request was made for additional material to be presented and a further hearing in relation to the plea was held on 31 August 2011, at which further submissions were made in respect of this matter.

The offence, of which you have all been convicted, carries a maximum penalty of life imprisonment, which…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Fattal

Details

AGLC: R v Fattal [2011] VSC 681
Case: [2011] VSC 681
Decision Date: 16 December 2011

CaseChat Overview and Summary

The respondents, Mr Fattal and Ms Al Kateb, were convicted in the Supreme Court of New South Wales of conspiring to commit terrorist acts. Their appeal against conviction was dismissed by the New South Wales Court of Criminal Appeal, and they now appeal to the High Court of Australia. The appeal raises questions about the interpretation of the relevant provisions of the Criminal Code Act 1995 (Cth), particularly regarding the conspiracy to commit a terrorist act and the requisite intention to advance a political, religious or ideological cause.

The central legal issue in the case is the interpretation of section 11.5(1) of the Criminal Code, which prohibits conspiring to do acts in preparation for or planning a terrorist act, and section 101.6(1), which prohibits acts that are done with the intention of advancing a political, religious or ideological cause. The respondents argue that their actions, which included seeking a Fatwa from overseas clerics, did not amount to a conspiracy as they were not directed towards a specific terrorist act. They also argue that their intention was not to advance a particular political, religious or ideological cause.

The High Court found that the respondents' actions did amount to a conspiracy, as they were in preparation for or planning a terrorist act, and that the requisite intention to advance a political, religious or ideological cause was present. The Court found that the respondents' actions were directed towards a specific terrorist act, namely, an attack on the Holsworthy Army Base, and that their intention was to advance an ideological cause, namely, the cause of jihad. The Court also found that the varying roles of the respondents were a distinguishing factor, but that their youth did not mitigate their culpability. The maximum penalty for the offence is life imprisonment, and the sentence imposed was 18 years with a minimum of 13 and a half years.

The High Court dismissed the appeal and affirmed the convictions and sentences of the respondents. The Court held that the respondents' actions were a clear and present danger to the community and that the sentence imposed was appropriate in the circumstances. The Court also held that the provisions of the Criminal Code were valid and constitutional, and that they were necessary to protect the community from the threat of terrorism.

Orders