| 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 |
| v |
| 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 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…
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- AGLC
- R v Fattal [2011] VSC 681
- Case
- [2011] VSC 681
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
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