R v Ghazzawy

[2017] NSWSC 474

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Ghazzawy [2017] NSWSC 474
Hearing dates:	26 April 2017
Date of orders:	08 May 2017
Decision date:	08 May 2017
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	(1)    The offender is convicted. (2)   The offender is sentenced to imprisonment for a period of 8 years and 6 months commencing on 15 December 2015 and expiring on 14 June 2024. (3)   I specify a single non-parole period of 6 years and 4 months commencing on 15 December 2015 and expiring on 14 April 2022.
Catchwords:	CRIMINAL LAW – Offences – Sentence – Making documents connected with preparation for a terrorist act knowing of the connection – Where documents which were partly compiled by the offender set out a plan to attack two specifically identified targets – Offender aged 18 at the time and aged 21 at the time of sentence – Plea of guilty – Where plea was evidence of some contrition – Need for any sentence to reflect considerations of general deterrence, protection of the community and denunciation of the offence.   CRIMINAL LAW – Practice and procedure – Where report from psychologist tendered on behalf of the offender on sentence – Report contained statements made by the offender to the psychologist regarding the circumstances of the offending and the renunciation of his extremist beliefs – Where offender did not give sworn evidence – Limited weight given to hearsay statements and opinions of psychologist based on those statements in the absence of sworn evidence from the offender – Where the plea of guilty and the offender’s expressed desire to enrol in a remedial program could be taken as some cautious indication of a move away from previously held extremist beliefs
Legislation Cited:	Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code 1995 (Cth)
Cases Cited:	Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379; Cameron v R (2002) 209 CLR 339; [2002] HCA 6 Cappis v R [2015] NSWCCA 138 Elomar v R [2014] NSWCCA 303; (2014) 300 FLR 323 HJ v R [2014] NSWCCA 21 JM v R [2012] NSWCCA 83; (2012) 223 A Crim R 55 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 Markarian v R (2005) 228 CLR 357; [2005] HCA 25 PK v R [2012] NSWCCA 263 R v Benbrika [2009] VSC 21; (2009) 222 FLR 433 R v Elomar and ors [2010] NSWSC 10; (2010) 264 ALR 759 R v Kahar; R v Ziamani [2016] 1 WLR 3156; [2016] EWCA Crim 568 R v Khazaal [2009] NSWSC 1015 R v Martin (1999) 1 Cr App Rep (S) 477 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 R v Rahme; R v Mohammed [2008] 4 All E R 661; [2008] EWCA Crim 1465 R v Sharrouf [2009] NSWSC 1002 R v Thomson; R v Houlton (2009) 49 NSWLR 383; [2009] NSWCCA 309 R v Touma [2008] NSWSC 1475 Tyler v R [2007] NSWCCA 247; (2007) 173 A Crim R 458 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 Wong v R (2001) 207 CLR 584
Category:	Sentence
Parties:	Regina – Crown Ibrahim Ghazzawy - Offender
Representation:	Counsel: N Robinson QC and M England – Crown G R James QC – Offender   Solicitors: Commonwealth Director of Public Prosecutions – Crown Birchgrove Lawyers - Offender
File Number(s):	2015/363057
Publication restriction:	Nil

Judgment

INTRODUCTION

1. On 27 October 2016 Ibrahim Ghazzawy (“the offender”) pleaded guilty to an offence contrary to s. 101.5(1) of the Criminal Code 1995 (Cth) (“the Code”) in the following terms (omitting the particulars):

Between about 17 December 2014 and 18 December 2014 at Sydney, in the State of New South Wales, did intentionally make a document and the document was connected with the preparation for a terrorist act, knowing of that connection.

2. An offence contrary to s. 101.5(1) of the Code carries a maximum penalty of 15 years imprisonment. Section 19AG of the Crimes Act 1914 (Cth) (“the Act”) requires that I fix a single non-parole period which is at least three-quarters of the head sentence.

THE FACTS

3. A statement of facts was tendered by the Crown without objection. As set out below, those facts make reference to a number of other persons, collectively referred to as the “Khalid group”. Some of the members of that group are yet to come to trial. When they do so, it will be in respect of a charge of conspiracy to do acts in preparation for a terrorist act or acts. I should make it clear at the outset that this offender is to be sentenced, not for being part of an alleged conspiracy, but for the substantive offence to which he has pleaded guilty. It should also be noted that the facts as tendered included copies of the actual documents made by the offender. Those documents are not reproduced in this judgment, although the narratives are set out:

1. BACKGROUND: The prisoner, Ibrahim Ghazzawy, adheres to the religious ideology of violent jihad. Specifically, he adheres to the religious ideology of Wahhabi-Salafism. This is the ideology that inspires ISIS (the Islamic State of Iraq and Syria), Al-Qaeda and like-minded groups and their supporters. The last “s” of “ISIS” comes from the Arabic word “al-Sham”, meaning the Levant, Syria or Damascus, depending on the circumstances. ISIS is also often referred to simply as Islamic State.

2. With the intention of advancing the religious ideology of violent jihad, the prisoner made documents connected with preparation of terrorist acts. Those proposed terrorist attacks were recorded in handwritten documents, as set out below.

DOCUMENTS:

3. The documents the subject of the charge have been referred to in Crown documents relating to the co-accused’s conspiracy charges as:

(a) Document 3, Item I372, the “AFP Building” Document;

(b) Document 4, Item I373, the “Gorilla Warfare” Document; and

(c) Document 5, Item I375, the “Lithgow Jail” Document.

The documents were located on 18 December 2014, in the garage used by and identified as the bedroom of Sulayman KHALID (a conspirator named in related proceedings), at 13 Berry Street, Regents Park.

4. Of the total of six handwritten documents found in KHALID’s home, three contain writing by Ibrahim GHAZZAWY. The documents, as the prisoner knew, were connected with the preparations for a terrorist act both on their face and in the circumstances of their creation. The documents demonstrate an active and real consideration of the type of terrorist act contemplated, and its target. They outline different methods for the commission of one or more acts of terrorism and set out possible targets. The forensic evidence shows that the documents were handed to others, apart from the author. On each document writing was added to that document by someone other than the prisoner. The inference is that the documents were read, discussed and added to as the discussion continued.

5. Document 3, Item I372 (the “AFP Building” Document) contains the following handwritten entries, the underlined portions of which were written by the prisoner (and the remaining sections of which has been identified as written by Farad SAID, a conspirator named in related proceedings):

If we are gna do the

Istishadi the AFP building is

a good target, its in parra or

the city.

Like the brother said, they will

catch up with us anyway so same

thing.

Helicopters and all that so

we are going to fight till

shahada anyway so we

might as well do something major

“Istishadi” is the Arabic word for "martyrdom", "death of a martyr", or "heroic death". Shahada is the Islamic creed. It is a declaration of belief in the oneness of God and the acceptance of Muhammad as God's prophet. In English, in its shortest form it reads “There is no god but God. Muhammad is the messenger of God.” However, in the context of the note, the writer may have mistaken it for shahid which is an Arabic word meaning "witness" and is also used to denote a martyr. It is used to refer to Muslims who have died fulfilling a religious commandment, especially those who die in jihad. The act of martyrdom is istishad.

Reproduction of Item I372, the “AFP Building” Document

6. Document 4, Item I373 (the “Gorilla Warfare” Document), contains the following handwritten entries, the underlined portions of which were written by the prisoner (and the asterixed portions of which have been identified as written by Mohammed ALMAOUIE, also a conspirator named in related proceedings):

The plan is gorilla (sic) warfare

(illegible) we are going to go

to the woods and attack

the dogs there, Blue Mountains

and the surrounding forests.

Who are we going to find there?

* Hijra out of NSW – 7

* Abo land

* Dawah to Abos = Army

* Army = Buildings, Fortresses, Plans etc

* Start Slowly ( under cover )

* Own world

* Start small = HUGE

“Hira” is the Arabic word for migration.

Da’wah means the proselytizing or preaching of Islam.

Reproduction of Item I373

7. Document 5, Item I375 (the “Lithgow Jail” Document) contains the following writing, the underlined portion of which was written by the prisoner. Other sections of the handwriting have been identified as that of Farad SAID.

Near by theres lithgow jail, insha Allah if we make progress we will attack it.

So All of us gorila warfare?

Yes, but I would prefer the birthday cake orries more but if not then I’ll go with what the rest of yous think

Im gna speak to the group of 5 and tell them to immobilize as soon as we do our attack or even before. So it will confuse the enemy, and insha Allah more brothers will arise and do something as soon as it sparks.

Why are they going to immobilize

Page 2

Why don’t we target like a

big organisation eg: headquarters

of police force, ASIO etc but

something massive that would

get them shocked and stuff up

there organisation. If we are want

to go all out them istishhad

goes in then the rest go in

to finish things off

Upside down on Page 2

On Sunday Abu bakr will tell him

the Amir the 2 plans most

preferably the Gorrilla warfare first

then the istishhadi plan. Abu Azzam will lay

(illegible) conditions. (illegible)

As soon as we take out a

dog, they will attack.

Reproduction of Item I375

THE BACKGROUND TO THE DOCUMENTS’ CREATION

The investigation

8. On 8 May 2014, the Joint Counter Terrorism Team (JCTT) commenced an investigation named Operation Appleby to inquire into allegations that certain persons of interest had formed a group (“the KHALID group”) who were conspiring to commit a terrorist act. This investigation remains ongoing. Ghazzawy was a member of the KHALID group. Other members, who face conspiracy charges in related proceedings, included:

a. Sulayman KHALID;

b. IM;

c. Jibryl ALMAOUIE (J.ALMAOUIE);

d. Mohamad ALMAOUIE (M.ALMAOUIE); and

e. Farhad SAID;

(together, “the conspirators”).

Meetings of the Khalid group

9. To facilitate the conspiracy’s criminal objective, KHALID organised a number of meetings at his home address at 13 Berry Street, Regents Park with the other members of the KHALID group. KHALID occupied the garage at this address, using it as his personal bedroom and place to meet.

10. Lawfully intercepted telephone conversations between KHALID and other members of the KHALID Group show that KHALID was organising and planning meetings of the KHALID Group through the use of code words and demanding to meet members in person. The interception of KHALID’S mobile phone service showed he believed his calls were being monitored.

13. Between 2 November 2014 and 18 December 2014, the KHALID group coalesced. The Crown case is that the conspirators began planning the attacks outlined in the documents located at KHALID’s house on 18 December 2014.

14. On the 14 December 2014, surveillance captured a meeting between members of the KHALID Group and several associates at East Hills Park, Georges River. Ghazzawy was with those observed by surveillance.

12. In addition to Ghazzawy, also present were:

a. Hamdi ALQUDSI;

b. Abdullah SALIHY;

c. Ali AL-TALEBI;

d. Ahmad Saiyer NAIZMAN;

e. Milad ATAI;

f. Maywand OSMAN;

g. Abdul-Rahman TAYBA;

h. Sulayman KHALID;

i. Jibryl ALMAOUIE;

j. IM; and

k. Mohamed ALMAOUIE.

15. The group was observed huddled together eating and engaged in conversation and praying. A short time later the group left East Hills Park and travelled in several vehicles to the car park on Prince of Wales Drive, Port Botany, arriving there about 4:48pm. After parking their vehicles they walked to the beach at this location. Surveillance of the group was ceased some time later.

Telephone interception of the KHALID group

16. The telecommunications service of Sulayman KHALID was lawfully intercepted from 7 November 2014 to 24 December 2014. Monitoring of this service confirmed that KHALID was in regular contact with members of the KHALID group. At the time, the services used by Ghazzawy and the other members of the KHALID group were:

a. GHAZZAWY: 0420298595 - subscribed in the name of Ms Amira GHAZZAWY;

b. KHALID: 0405215760 - subscribed in the name of Suleiman HALID;

c. IM: 0420404974 - subscribed in the name of Adam STEVENS;

d. J. ALMAOUIE: 0421937701 - subscribed in the name of Lady Nho TRAI;

e. M. ALMAOUIE: 0428815371 - subscribed in the name of Mr Abdallah ALMAOUIE;

f. F. SAID: 0404222303 - subscribed in the name of Farhad SAID; and

g. F.SAID: 0434914040 - subscribed in the name of Fred JOHNSON.

17. In each case, with the exception of one of SAID’s service, false names were used to engage the services. This is relied upon by the Crown as supporting the existence of the conspiracy, the purpose of subscribing in a false name being to make it more difficult to track or identify the subscriber if the call was overheard.

18. Telephone intercept material and physical surveillance shows KHALID contacted each member of the KHALID group and arranged their meetings. Conversations between KHALID and IM often referred to their impending death.

19. KHALID increased the frequency of meetings with the members of the KHALID Group from 29 November 2014 leading up to the execution of search warrants conducted on18 December 2014 (further details of which are set out below). Telephone intercept material shows coded and guarded conversations between each of the group’s members that relate to planning a domestic terrorist attack and also to attempts to avoid detection by police.

20. Some of the words used during the group’s coded conversations were located on terrorist planning documents found at KHALID’s home on 18 December 2014. Some of the code words and their associated meaning are listed below:

a. Banana = Firearms;

b. Motorbikes = Firearms;

c. Party = Meeting/Terrorist attack;

d. Wedding date = Date of (terrorist) attack;

e. China = Overseas, fighting with ISIS;

f. Wombat = KHALID’s residence;

g. Over Pools = Over Seas;

h. George = OSMAN; and

i. Tony = GHAZZAWY.

21. Examples of calls and coded calls include:

a. At 5:54pm on 9 November 2014, IM sent KHALID an SMS message saying “But allhamdulilah it is 9 brothers including me” (“allhamdulilah” meaning “All praise is due to God alone”) ; and

b. At 8:01am on 10 November 2014, KHALID sent a number of religious messages to IM with the end of the message saying “From your brother Abu Bakr“.

22. At 8:39am on 11 November 2014 KHALID sent a number of SMS messages to GHAZZAWY, including the following:

KHALID: “You can’t get married now and leave her completely”.

KHALID: “After you go and seek jannatul ferdous“ (that being the highest stage of paradise)

23. From 2:16pm on 10 November 2014 IM and KHALID held a conversation by way of SMS messages:

IM: “Allhamdudiliah!!!! So we have 9 shabab try to get more?” (“shabab” meaning “boys”)

KHALID: “Can’t see you today 9 shabab meaning 9 chefs cause inshallah we’re going to be cooking lots of nice food” (“inshallah” meaning “God willing”).

KHALID: “We have a big kitchen as well”.

IM: “And do we have lots of supplies and you heard me if I don’t go cooking training I’m not coming.”

KHALID: “We’re gonna try to get in the master chefs competition.”

IM: “Look Abu are we gonna train”. (“Abu” being Arabic slang for “leader” when used in this manner).

KHALID: “It depends what the master chefs conditions are cause there a lot of mad chefs out there that know how to cook pasta then u got chicken lamb sheep all kinds of nice tender foods”.

KHALID: “I love my stomach and you know every chef has to love his stomach”.

IM: “Yeah if there is a lot of good cooks I don’t care about if there good I want to train so I can be good if I don’t train with the materials we need I’m not coming’.

24. At 6:18pm on 10 November 2014 IM called KHALID. During their conversation IM told KHALID that he had sought his father’s permission to travel overseas to fight, however, his father refused. IM discussed martyrdom and wanting to go to Jannah. (“Jannah” meaning “Paradise”).

25. At 6:44pm on 10 November 2014 KHALID called Abdul-Rahman SALEH. During this conversation KHALID told SALEH that KHALID is under surveillance by ASIO as he had 15 brothers in his garage.

26. At 8:44am on 11 November, 2014 KHALID and IM held a conversation by way of SMS messages:

KHALID: “IM guess what I turned 20 years old”

IM: “Allhamdulilah akhi I’d say happy birthday but it’s Haram so happy 20th“ (“Akhi” meaning “all praise is due to God alone brother” and “Haram” meaning “forbidden by Islamic law”).

KHALID: “Thanks habibi just know that we are getting closer to death everyday.” (Habibi meaning “my friend or love”).

27. At 7:12pm on 14 November 2014 IM called KHALID. The conversation relates to IM wanting to make a decision whether to fight overseas, or commit to a domestic terrorist attack in Australia.

28. At 7:17pm on 14 November 2014 IM called KHALID. IM told KHALID that “he” (Wisam HADDAD) is right here and that IM wants to ask “him” whether he (IM) should “make BANANA over there or here”? KHALID asked “where is he?”, and IM replied that “he” is in front of IM, across the road. KHALID wants to ask him “how is it down there, to do it there?”

29. On 17 November 2014 and 26 November 2014 KHALID sent a large SMS message containing religious ideology to his associates including SAID. The messages were signed off by KHALID using the words “From your brother Abu Bakr”

30. At 3:41pm on 26 November 2014 SAID who was with Ghazzawy at that stage, called KHALID:

SAID: “Where are you ahki”

KHALID: “I’m at home”

SAID: “Um do you want us to come past I’m with Ibby”. (Ibrahim GHAZZAWY)

KHALID: “Your with Ibby”...

SAID: “Yeah at Regents Park... and Adam”...

KHALID: “Seriously”

SAID: “Seriously”

KHALID: “Mmm do you have work today”..

SAID: “Yeah I do”

KHALID: “Auburn”.

SAID: “Yep..You”re not gonna report”...

KHALID: “What time are you working till, what time”...

SAID: “About five o’clock I start work”..

KHALID: “Ahhh another time”

SAID: “Yeah yeah”

KHALID: “Because I’m still in my pyjamas”

SAID: “Ahki like we’re here we’re about to take a turn do we come or do we not”

KHALID: “Give the phone to Ibby” (Ibrahim GHAZZAWY)

GHAZZAWY: “What’s wrong with ya, like yes or no, it’s simple”

KHALID: “Ah because I’m still in my PJ’s bro”

GHAZZAWY: “............ Come see you at your house... if you wanna report”

KHALID: “Yalla, come, come”

GHAZZAWY: “You’re just in the garage yeah”

KHALID: “Yeah just in the garage come”

31. At 3:12pm on 27 November 2014 Farhad SAID called KHALID:

SAID: “Where are you?”

KHALID: “I’m at home”

SAID: “Wombat”

KHALID: “No, no, no, no, no, I’m busy”

SAID: “Alright, he said, he said wombat, wombat.”

KHALID: “Yeh alright yalla, I’ll see him, I’ll wombat him tonight....”

32. At 2:19pm on 29 November 2014 KHALID called GHAZZAWY. During this call KHALID said the word “WOMBAT” twice quickly.

33. At 2:22pm on 29 November 2014 KHALID sent GHAZZAWY an SMS message:

KHALID: “Hey I’m on my way to your “wombat hole”.

34. Telephone intercept material on 29 November 2014 shows KHALID arranging and organising to meet with GHAZZAWY (referred to as “Tony”) OSMAN (referred to as “George”) and IM.

35. At 2:54pm on 30 November 2014 KHALID organised a face to face meeting with IM, GHAZZAWY and OSMAN. KHALID used the word “PARTY” for the meeting.

36. At 10:47pm on 2 December 2014 KHALID and IM held a conversation by way of SMS messages:

KHALID: “IM don’t leave my side please”

IM: “What the hell? Why am I going to leave your side why you talking like this stop”

KHALID: “Sometimes I think to myself if I die now what’s going to happen to that someone that is dear to me”

37. At 7:48pm on 3 December 2014, 2014 IM and KHALID had a conversation by way of SMS messages:

IM: Tomatoes and BANANAS is our patience brother in al Islam make dua. (“Dua” being the act of supplication, it is calling out to God or a conversation with God).

KHALID: Habibi I ask Allah to allow us to leave this world together together together me and you this is what I wish for this is what I want and this is what I ask Allah everyday for to leave to depart from this world with my little brother with my habeeb as I’m writing this to you I’m crying IM I want you to stick by me stand with me together we will leave this life (“Habibi” is an Arabic male name with the meaning "beloved" or "sweetheart”).

38. On 6 December 2014, the “banana” code was confirmed when IM told KHALID his uncle had a “banana” licence in reference to a firearms licence.

39. At the time IM’s uncle (NM) was the licensed owner of four firearms as follows:

a. Marlin brand rifle: serial number MR69950C;

b. double barrel shotgun: serial number 1131443;

c. Carl Gustaf brand rifle: serial number 237907; and

d. Thomson brand rifle: serial number TDY8142.

40. At about 8:00pm on 6 December 2014, IM went to his uncle’s house with the intention of ascertaining what firearms were there, and of taking possession of these firearms for the purpose of posing for photographs and sending these to KHALID. Over the next couple of hours he posed for photographs in various positions with three of the firearms. After taking the pictures IM sent KHALID a further text message as follows: “Like what time, do you want me to send you a pic of me holding the banana?” KHALID replied: “No show me the banana tomoz so I can eat it as well”.

41. At 5:49pm on 10 December 2014 KHALID called SAID. During this call KHALID used the code name of “Tony” to refer to Ibrahim GHAZZAWY:

KHALID: “Are you with ahh Tony”

SAID: “Na, no”

KHALID: “Are you at work?”

SAID: “What, na, he’s, I”m at Bankstown”

KHALID: “Where’s Tony?”

SAID: “Tony, Tony went home”

KHALID: “Seriously”

SAID: “Yeah he’s gonna come back or something apparently”

42. On 10 December 2014, IM sent KHALID an SMS that included “I am going to get paradise though that Banana. God is great, no god but Allah. KHALID responded “are you going to stand and stay beside me” and IM responded “Inshalla yes.” (“Inshalla” meaning God willing).

43. At 4:04pm on 11 December 2014 KHALID called SAID:

KHALID: “Hello”

SAID: “Yeah I can hear you”

KHALID: “How are ya”

SAID: “Yeah not bad yourself”

KHALID: “Bra I went for your frickin voice mail bro, I thought you’d answered” “Ibby said call him now” (Referring to Ibrahim GHAZZAWY).

SAID: “Alright, alright I’ll call him”

44. At 4:08pm on 12 December 2014, SAID called KHALID about meeting after work. During this conversation KHALID and SAID spoke with strong Australian accents joking about meeting at the pub. KHALID agreed to meet SAID after SAID finished work after 9:00pm.

45. At 10:45pm on 15 December 2014 KHALID and IM spoke and IM asked KHALID what was wrong. KHALID said “you told him about the MARRIAGE contract and the MOTORBIKES”. KHALID asked what made IM tell him about this. IM said that he will tell KHALID tomorrow when he sees him. IM said; “Tony” IM and Tony “are thinking of going to Bankstown and crossing the roads”. KHALID asked what is in Bankstown. IM isn’t going to tell KHALID. KHALID asked if IM is going to buy some clothes in Bankstown. IM said that they are going to cross the roads.

46. At 2:47pm on 16 December, 2014 KHALID and J. ALMAOUIE had a conversation relating to firearms. This conversation referred to the Lindt café siege. Immediately after this they spoke in Arabic and KHALID said, “we all need to get married”. Later in the conversation KHALID said, “bro I looked at the flame (ind) the (ind) the contract you gave me yesterday.”

ALMOUIE laughed and said, “straight flame bro”. Police allege this was in relation to the firearms found at ALMAOUIE’s home on the 18 December 2014. (see below).

47. At 4:30pm on 16 December 2014 GHAZZAWY called KHALID. During this call GHAZZAWY confirmed they will meet. KHALID stated “I’m in someone’s wombat hole” “I’m a wombat”. This is the last identified meeting between KHALID and GHAZZAWY at KHALID’S home.

48. At 2:17pm on 17 December 2014 IM and KHALID had a conversation. In this call IM was becoming impatient and wanted to know when the terrorist attack would happen. IM asked KHALID whether he has good news or bad news. KHALID said he would tell IM after, when he sees IM. KHALID said “don’t give me a hard time now”. KHALID said that the news is “in the middle”. IM asked “I mean, are we going to be taking a step or not take a step”. KHALID said that it is not about that. IM asked if “he” changed the “wedding date”, and KHALID said that he needed to speak to IM and ask him questions. IM guessed it was about “John”. KHALID said that it was not about John. IM guessed that John wanted in on the MARRIAGE.

49. At 11:31pm on 17 December 2014 KHALID and M. ALMAOUIE had a conversation. During this conversation M.ALMAOUIE confirmed he was with an associate, Abdul TAYBA. KHALID was adamant he needed to speak with M. ALMAOUIE urgently. KHALID said, “I need you to come here“, “I need to have a long serious chat with you bro” and “I need to see you tonight”.

50. During December 2014 and leading into 16 December 2014 and on the night of 17 December 2014 into the morning of 18 December 2014, members of the group met regularly at KHALID’s house in Regents Park. During these meetings members of the KHALID group wrote out various documents including those described in detail above, outlining their plans for a terrorist attack.

SEARCH WARRANT OPERATION ON 18 DECEMBER 2014

51. On 18 December 2014, the Joint Counter Terrorism Team executed search warrants at the following premises occupied by members of the KHALID group:

a. 13 Berry Street, Regents Park: the home of Sulayman KHALID;

b. 73C Clarence Street, Condell Park: the home of J.ALMAOUIE and M.ALMAOUIE; and

c. the home of IM.

Khalid search warrant - 18 December 2014

52. At the time the search warrant was executed, KHALID was not at home. However, other members of his family were and Khalid arrived during the search.

53. A total of six handwritten documents that outline plans to commit an act of terrorism were located in KHALID’s home. The first handwritten document (Item I370, “the torn up motorbike document”) was located on the kitchen floor of KHALID’s home. The other four handwritten documents (Items I372 to I375, “the planning documents”) were located in KHALID’s bedroom inside a black suitcase.

54. During the search of KHALID’s home the following items together with a number of other items were seized:

a. Handwritten document ripped into four strips (the “torn up motorbike document” - Item I370);

b. Blue folder “Tajweed studies”(Item I371) (Tajweed” refers to the rules governing pronunciation during recitation of the Qur'an.;

c. Notepad page with handwritten note (Item I372) (Referred to as “planning document I372”);

d. Notepad page with handwritten note (Item I373) (Referred to as ‘”planning document I373”);

e. Notepad page with handwritten note (Item I374) (Referred to as “planning document I374”);

f. Notepad cardboard backing with notes (Item I375) (Referred to as “planning document I375”);

g. 17 x A4 pages Black & White flag image;

h. A number of items of clothing with black & white badging; and

i. Green A4 folder “Islam Topics”.

Item I370: “The torn up Motorbike” document

55. Item I370 – the “torn up motorbike document” contains images and descriptions of three firearms referred to as “motorbikes”. It confirms previous coded references to “motorbikes” during conversations between OSMAN and KHALID. The note was found on the floor and it appears to have been torn up immediately prior to police entering the premises. The entry was done by knocking on the door and co-operation from the occupants.

56. Document examination has confirmed the “torn up motorbike document” document was written by Jibryl ALMAOUIE. On the same morning as the search warrant at KHALID’S a search warrant was conducted at ALMAOUIE’S. The three firearms referenced in the note were found at his home. These firearms were found with the appropriate ammunition and are fully functional firearms. (See below).

57. Item I370 had been ripped into four strips and was rolled into a ball. It was located lying on the floor of the kitchen of KHALID’s home. This note reads as follows:

-    About 350 litres of fuel for 3

motorbikes. Two long ones & one short

one. Two long ones 2 litres, 1 short one 1 litre

-    About 100 litres of fuel for another motorbike

but if it finishes quickly. 10 litres at a time will finish in a day or less.

-    About 300 litres of fuel for another motorbike but it only takes 1 litre at a time. It has its advantages like

2 x Long ones                   $2500

$4000

Short one

Fast one

Slow one   $5,000

$25,000

$30,000

$40,000

58. KHALID’s fingerprints have been identified on Item I370.

Item I371c/d

59. This item was located inside a backpack which was found in a garage adjoining the KHALID family home. KHALID used this garage as his bedroom. Item 371c/d reads as follows:

Page 1

1 – Security precautions is all wrong!!!

A brother I wont name who, had ASIO following his family the next day after Georges River. We should know we are all on red hot flaming heat & we shouldn’t be in the public to start with

2 – Lower your voice in public because it just brings more heat & attention.

3 – We just saw what happened the next day, at the Sydney Siege in the CBD which means they will be on us 24/7 & I told you the earlier we do things the better. What are we waiting for the enemies to collect more info & we all cop it sideways. An example is salat is a fard right, can we say have sabr akhi & wait till its time to pray & make tarbiyyah before praying, NO!!! Allah says about the prayer being delayed, woe to those who pray.

Salat is one of the Five Pillars of the faith of Islam and an obligatory religious duty for every Muslim. It is a physical, mental and spiritual act of worship that is observed five times every day at prescribed times. Fard is an Islamic term which denotes a religious duty commanded by Allah. Akhi means brother.

Which was because of them delaying the prayer. And we are delaying Jihad. Jihad is a fard ayn on every Muslim. No permission is needed just as no permission is needed to pray. Both are a fara ‘id. Weve been waiting for years, ARE WE STILL GOING TO WAIT!!! Enough is

Page 2

enough, these pigs ( Australians ) are fighting our brothers in Ash – Sham & here in Aus & yous still want want to wait. Read, An – Nisa: 84 & tell me what excuse do we have after this Read, An-Nisa; 75 as well & tell me.

The time is NOW!!! We are down we even came earlier to Revesby because we want to humiliate these dogs, that’s how keen we were.

- 4- Show us a visual recording or hardcore evidence that the Khalifah chose you to be the Amir Otherwise I will give the bay ah myself. Just as the brothers in prison did without an Amir.

-5 – We have no weapons that’s why we came to yous to get our hands on them so you cant tell us NO!!! NOT NOW!!!

THEN WHEN ? After we get slaughtered one by one?

Page 3

6- Im not a fool and I will

make sure how to give the bay ah and who

to give it too & the conditions

& so on. So I won’t give it blindly

7- We --- are going to do our own

things & we will break the ICE

here in AUS. Instead of being

sitting headless ducks with no –

direction were (sic) to go or look.

And by that everything will start

Here which will make yous walk

your talk instead of talking your talk

“Ash-Sham” is a reference to Syria (al-Sham standing on its own can sometimes refer to the city of Damascus). An-Nisa is a sura (Chapter) in the Quran known as ‘The Women’. Sura An-Nisa 84 in, one translation, reads: So fight, [O Muhammad], in the cause of Allah ; you are not held responsible except for yourself. And encourage the believers [to join you] that perhaps Allah will restrain the [military] might of those who disbelieve. And Allah is greater in might and stronger in [exemplary] punishment. Sura An-Nisa 75 reads:

And what is [the matter] with you that you fight not in the cause of Allah and [for] the oppressed among men, women, and children who say, "Our Lord, take us out of this city of oppressive people and appoint for us from Yourself a protector and appoint for us from Yourself a helper?".

Khalifah is a name or title that means "successor" or "steward". It most commonly refers to the leader of a Caliphate, but is also used as a title among various Islamic religious groups and orders. In Islamic terminology, bay’ah is an oath of allegiance to a leader.

60. During the course of the police search of the KHALID family home, KHALID returned to the residence. After being formally cautioned, KHALID was questioned about terrorist planning documents found inside the backpack and suitcase in his room. KHALID stated the following:

a. He was the owner of the suitcase that was located in the garage;

b. The garage was his room;

c. He was the user of the backpack and it stayed in his room most of the time;

d. He did not write the notes;

e. Abu Bakr is his nickname;

f. He had read the letters that were located in the backpack & suitcase;

g. Just because he has read the letters doesn’t mean he is going to do what is says on there; and

h. He didn’t know the letters were located in the backpack.

Almaouie Search Warrant: 18 December 2014

61. During a search warrant executed on the residence of ALMAOUIE three firearms were seized: namely, a shortened shotgun, a double barrel over and under shotgun and a bolt action rifle (Modified .303) with magazine, together with many rounds of ammunition. Other items of interest were also seized, including:

a. Black flag with Arabic writing;

b. Black headband with red foreign writing;

c. Handwritten notes referring to weapons Chemical Structure;

d. Book titled “SAS Survival Guide“;

e. Red bandana; and

f. Black shirt with Islamic writing and various headscarfs.

IM search warrant: 18 December 2014

62. During a search warrant executed on the residence of IM the following items of interest were seized:

a. Mobile phone containing pictures of IM in possession of firearms;

b. 2 bullets;

c. 6 CD’s titled “Lives of the prophets”;

d. 11 X CD‘s labelled Anwar Al-Awlaki;

e. 3 CD’s labelled “ways and means of devil”, “The plot of the hypocrites” (that being a reference to the Quran in which there is described a plot to kill Muhammad) and “Arabic/Syrian Anasheed” (“Anasheed” being religious songs used heavily in extremist propaganda);

f. 1 hand written document entitled “Lover of Jihad”; and

g. Document titled “the blood of the Shuhada” (”Shuhada” being Martyrs).

63. Among the items seized was the mobile phone of IM. Forensic examination of this mobile phone located 4 photographs that had been taken on the evening of 6 December 2014 and depicted IM posing with three of his uncle’s guns.

FINGERPRINT ANALYSIS RESULTS

64. Forensic examination of the five documents (items 1370-1375) seized at KHALID’s home by AFP Fingerprint and Document Examination experts has identified the following persons dealing with the documents through handwriting analysis and fingerprint identification.

(a) Fingerprint examination results –

i. Item I370: Fingerprints of Jibryl ALMAOUIE & Sulayman KHALID;

ii. Item I371: Fingerprints of Jibryl ALMAOUIE, IM, Mohamad ALMAOUIE, Sulayman KHALID and Farhad SAID;

iii. Item 1372: Fingerprints the prisoner and of unknown person/s;

iv. Item 1373: Fingerprints of Mohamad ALMAOUIE & Abdul TAYBA;

v. Item 1374: Mohamad ALMAOUIE; and

vi. Item 1375: Unknown person/s.

(b) Handwriting analysis results -

In addition to the handwriting of the prisoner, the following has been identified on the documents:

i. Handwriting comparison of known samples of Jibryl ALMAOUIE’s handwriting with the handwriting on Item I370 and 1371 has confirmed that the writer of this document is Jibryl ALMAOUIE;

ii. Handwriting comparison of known samples of Mohamad ALMAOUIE’s handwriting has confirmed that he wrote on the document identified as I373;

iii. Handwriting comparison of known samples of Farhad SAID’s handwriting has confirmed that he wrote the documents identified as I372 and I375.

iv. Item 1370 the torn up handwritten document located on the kitchen floor near a rubbish bin, refers to three firearms and ammunition. This document, written in code, relates to the firearms and ammunition seized from the ALMAOUIE residence.

ARREST AND CHARGING

65. On 10 December 2015, Ibrahim GHAZZAWY, Jibryl ALMAOUIE, Sulayman KHALID, and IM were arrested and charged. During a record of interview all accused were provided with their legal rights under Part 1C of the Crimes Act 1914. All accused stated “no comment” to questions put to them or sought legal advice and subsequently declined to participate in an interview.

66. On 26 May 2016 Farhad SAID was arrested and charged and declined an interview after being explained his legal rights.

THE EVIDENCE IN THE OFFENDER’S CASE

4. Tendered in the offender’s case on sentence were the following documents:

1. a report of Anna Robilliard, Psychologist of 31 January 2017;

2. email correspondence regarding the offender’s proposed enrolment in the “PRISM” Program;

3. character references from:

4. Roba Ghazzawy, the offender’s mother;

5. Aiesha Raad, the offender’s former wife;

6. Aymen Menzel, a long standing friend of the offender;

7. Amira Ghazzawy, the offender’s sister;

8. Gassan Ghazzawy, the offender’s brother;

9. Abdoul Hamid Ghazzawy, the offender’s father;

10. Ruqaya Ghazzawy, the offender’s youngest sister; and

11. Shadi Kassem, the secretary of the “Greenacre Tigers” Junior Rugby League Football Club in which the offender participated between 2000 and 2015; and

12. a copy of the offender’s marriage certificate.

5. Ms Robilliard provided her report following a four hour assessment which was undertaken with the offender in custody. Having set out, at some length, the offender’s family background, Ms Robilliard noted that the offender had indicated that to her that he was not aware of any mental health problems within his immediate or extended family network, that he did not report any prior history of treatment for mood disorders or mental illness, and that he was not currently undertaking any treatment. Ms Robilliard’s report does not diagnose the offender as suffering from any form of mental illness.

6. Commencing at para. 35, Ms Robilliard set out the background to the offending as it was reported to her by the offender. At the time, she had access to what she referred to as the “JCTT Sydney statement describing the activities of Ibrahim Ghazzawy and others in relation to the offence”. I do not have that document before me but I am proceeding on the assumption that its contents are essentially the same as the statement of facts tendered by the Crown. In dealing with the offender’s account of the offending, Ms Robilliard stated (at para. 40):

Ibrahim essentially agreed with the JCTT account of his involvement in the index offence. He acknowledged that he was at meetings between 16 and 18 December 2014. After the meetings he reported feeling "uncomfortable". Asked to explain in more detail, he responded that he thought a terrorist act was "bad". He went on to state that he did not voice his concerns to the group as "I didn't want to show it... I didn't want to look like a nothing person". He went on to state that he felt the need to make himself look "strong and not weak - I didn't want anyone to think bad of me". Asked why he had remained involved in the group. Ibrahim stated that "I was young and talking it up to look good to people... to fit in... to be accepted". He went on to state that he really regretted his involvement and in hindsight, feels that he was "immature and stupid".

7. Under the heading “Attitude to the offence” Ms Robilliard stated the following (at para. 41):

Asked how he felt about being charged with the index offence Ibrahim said he "hated" it. Asked to explain in more detail he said he hated "being called a terrorist - it feels not good and it's not true - because terrorists are violent - I oppose violence on anyone". Referring to his involvement in the index offence he said it was "empty words".

8. Ms Robilliard then administered the Personality Assessment Inventory (“PAI”) which she described as “a self-administered objective test of personality and psychopathology designed to provide information on critical individual variables”. Commencing at para. 47 of her report, Ms Robilliard set out the scores returned by the offender following that testing. Those scores may be summarised as follows:

1. on the validity scales, the offender’s scores were all within normal range;

2. across the clinical scales, the offender’s scores were within or below the average range, indicating a person who (inter alia) occasionally experienced maladaptive behaviour patterns or a mild degree of disruption;

3. there was no evidence of symptoms related to traumatic stress or phobic fears;

4. on a scale measuring symptoms relating to depression, the offender’s score was in the average range, at a level indicative of a person who is unhappy at least part of the time and who is sensitive, pessimistic and prone to self-doubt. An analysis of sub-scale scores indicated that the major contribution was probably physiological symptoms of depression including sleep problems and appetite problems which were reported;

5. on a measure of manic behaviour there was no indication of dysfunctional behaviour;

6. the offender’s scores on a scale measuring elements relating to personality disorder reflected a person who reported being emotionally stable and who had stable relationships;

7. on a scale measuring antisocial features, the offender’s total score was in the normal range, at a level that indicated a person who may seem somewhat impulsive and prone to risk taking;

8. there was no indication of problematic use of alcohol;

9. there was a mild elevation on the drugs scale;

10. the offender’s score on a scale measuring aggression was well below the normal range; and

11. on a measure of stress, the offender’s score was indicative of that of a person experiencing a moderate degree of stress, consistent with his current circumstances of incarceration.

9. The final section of Ms Robilliard’s report was headed “Summary and clinical opinion”. To a significant extent, that part of the report recounted the history provided to her by the offender. However in terms of the offending, Ms Robilliard said (commencing at para. 69):

69. The index offence dates from December 2014. Ibrahim admitted he had become involved with a small group of Moslem young men, some of whom were overtly militant and planning to carry out a terrorist act in Australia. The group was tight knit and hierarchical and communication was frequent which consolidated the group further. At just 18 years of age Ibrahim appears to have been the second youngest in the group.

70. When he became aware of the extremist views and intentions of some members of the group, Ibrahim reported feeling “uncomfortable" as he was "opposed to violence." However, he did not report making any overt attempts to disconnect from the group because he wanted to appear strong and wanted to be accepted by the group.

71. Initial attempts to identify the profile of a typical terrorist have been abandoned as was repeatedly highlighted by international keynote speakers at the recent ANZAPPL Conference in New Zealand (November 2016) on the subject. (For example: Dr Paul Gill, Dr Peter Collins). To date, research studies into the different roles and functional diversities of group members, that contribute to group cohesion, have not been studied that I was able to discover, and this may help to elucidate the difference in individuals who coalesce into a focused terrorist group.

72. However, the power of a cohesive group on shaping each member's behaviour to support the group culture, is well recognised in all arenas, and applicable in understanding groups engaged in terrorist activities. Jerrold Post, in a recent research paper wrote:

73. No psychological characteristics or psychopathology separates terrorists from the general population. Rather, it is the group dynamics with a particular emphasis on the collective identity, that helps explain terrorist psychology.

74. Ibrahim was just 18 years old at the time of offending and in hindsight he described himself as “immature” and “stupid”. He maintained that he did not seek to break away from the group when he became aware of the terrorist intent, because he did not want to be looked upon by the group as "a nothing person" and wanted to be seen by the others in the group as "strong and not weak." He also described his contributions to the group as "empty words'" and maintained that while he was implicitly non violent, he was not able to voice his view in the context of a strong, passionate, small and cohesive group of other young males who seemed to him to be united in their commitment to their cause.

75. The profile Ibrahim produced on the PAI administered as part of this assessment, was statistically robust and valid. There was no indication of response bias, random or inconsistent responding. No prominent psychopathology was measured and there was no evidence of an aggressive predisposition, consistent with his reported history of non-aggressive behaviour at school and in the wider community. Nor was there any sign on his test profile, of dependent or subservient attitudes or behaviour that might have made this young man vulnerable to negative influences and pressure. He tested out as capable of warmth and empathy and not prone to over asserting himself or taking aggressive control or dominance in interpersonal situations. There was a slight elevation on a measure of antisocial behaviour which related to historical conduct; consistent with his acknowledged period of adolescent acting out from about age 16. There was also a slightly elevated score on a measure of current stress; consistent with his legal situation and imprisonment.

76. In summary, the personality profile Ibrahim produced described a young man whose current personality construct is free of marked psychopathology. It is possible that 2 years ago. when he was in mid/late teens and became involved in the index offence, he could have produced a profile that described more marked rebelliousness and an entrenched need to belong and feel accepted, which is not unusual in young male adolescents. The past two years and the reality of this criminal charge and his consequent imprisonment, could have prompted Ibrahim to review his position in his family, his community and his religious perspective which is reflected in the valid, unremarkable and pathology free personality profile he has produced.

77. Ibrahim maintained that he deeply regretted committing the offence and hates being identified as a terrorist because it implies violence and he does not espouse violence.

10. At the sentence proceedings before me (commencing at T12 L25) Ms Robilliard was cross-examined on the contents of her report by the Crown. That cross-examination was limited and it is appropriate that it be reproduced in full:

Q. Ms Robilliard, in respect to your report you formed the view based upon the tests you set out, but there's essentially, and this is my summary of it, no personality defect or psychological profile which indicated antisocial tendencies, if I can express it that way?

A. Yes, that's right, he was the normal range.

Q. All right. And your report also notes, as his Honour would have seen, that there's some discussion toward the end about the examination of group dynamics for the purpose of terrorism offences?

A. Indeed, yeah.

Q. All right. Do you, do I follow it from the report, form the view that the circumstance of his associating with those that he describes as, I think you used the term in the report as being much more radical than him and his involvement, which is at paragraph 69 I think is your description of it if it would assist you, that he admitted he became involved with a small group of Muslim young men, some of who were overtly militant and planning to carry out a terrorist act in Australia?

A. Mmm.

Q. I take it that is your summary of what both he gave you as history and what was in the summary of facts that you read?

A. Yes.

Q. And do I follow your report correctly that it was his adherence to religion and the extremist aspect that he took up which placed him in that group?

A. I think it developed over time from the time that he joined. I think it evolved honestly.

Q. All right. Now, do you have a view whether in respect to group dynamics such as this the adherence of some or all within the group to the extreme Muslim Islamic position is a driver of that group?

A. Yes. As a shared group --

Q. Yes.

A. -- dynamic, yes.

Q. Now, can I ask you perhaps a couple of questions. You have referred to, and I won't take you to them unless you need to go to them, observations, his use of the words that he was young and stupid and he wrote empty words and so on. You don't use this term but, effectively, as braggadocio so that he didn't appear as nothing I think the term was used --

A. That's right, that was his term, mmm.

Q. -- to the others in the group?

A. Mmm.

…

Q. Did he offer you an explanation for why, instead of writing on a number of different pages, possible targets and methods of terrorism he merely stayed silent?

A. I'm sorry, I don't really know what you mean.

Q. Well, in the report you recount the fact that he said to you that he thinks terrorism is bad --

A. Yes.

Q. -- that he's not violent

A. That's right.

Q. -- and that they were empty words?

A. Yes.

Q. But in the four hours you spoke to him did he say to you any reason why he wrote something rather than stay silent and not answer?

A. Sorry, I follow you. No, and I must admit I didn't ask him. I don't know whether he was invited to or whether he did voluntarily, I don't know.

Q. All right. But it wasn't something that he offered to give you an explanation?

A. I didn't ask the question.

Q. No, but he didn't offer it?

A. No.

11. The material in relation to the offender’s proposed enrolment in the PRISM program is set out at [4](ii) above. The term “PRISM” is an acronym for “Proactive Integrated Support Model”, a remedial and early intervention project directed to assisting inmates who are identified as being at risk of violent extremism.

12. In an email from the offender’s solicitor of 7 February 2017 to Dr Sharon Klamer, Senior Psychologist at Corrective Services NSW, the following was stated:

We confirm Mr. Greg James OM (sic) QC is also appearing on his behalf.

Under the guidance of Mr James and given the strong indications towards deradicalistion (sic) that my client has demonstrated, we would like to have Mr. Ghazzawy participate in your PRISM program.

It is our belief that Mr Ghazzawy would be an ideal candidate to commence and progress through the program stages whilst serving his sentence.

In light of above, could you please provide any information available for potential applicants to assist you in assessing Mr. Ghazzawy’s candidacy by way of identifying his individual intervention or treatment needs or treatment type.

13. The “strong indications toward deradicalistion” (sic) referred to in the email were not otherwise identified.

14. The response from Dr Klamer of 13 February 2017 was in (inter alia) the following terms:

Unfortunately we do not have any information currently available on the service to be able to provide directly to your client.

Given the offences that he has been convicted of however, I am happy to consider this email as a referral to the service and I will place his name on the waiting list to be seen in due course.

The PRISM service is focused on family and community engagement and reintegration. As a result, offenders are approached to commence participation approximately 12-24 months prior to being eligible for released (sic) into the community on parole. As your client is still awaiting sentencing, it is unclear when we will be able to offer him a place to participate.

Participation in the service is voluntary.

15. The character material tendered on the offender’s behalf set out at [4](iii) above speaks (inter alia) of the offender’s strong family ties, along with the fact that in the observations of those who provided the testimonials, the offender is a caring and thoughtful person who had not previously displayed a propensity for violence.

SUBMISSIONS OF THE PARTIES

Submissions of the Crown

16. The Crown submitted that any sentence imposed upon the offender must necessarily have regard to the object and purpose of the legislation creating the offence, and the maximum penalty prescribed by the Parliament. It was submitted that one of the defining features of terrorist action lies in the fact that its object is to use serious violence, or the threat of serious violence, as an instrument of coercion, or of intimidation, of the community or government, in the pursuit of a political, religious or ideological cause. It was submitted that it was self-evident that terrorist action has the capacity to cause significant harm and that in these circumstances, the predominant considerations on sentence were:

1. the protection of the community;

2. the punishment of the offender;

3. the denunciation of the offence; and

4. general deterrence.

17. The Crown submitted that in these circumstances issues of rehabilitation played a minor role, and that generally speaking the subjective circumstances of the offender should be given less weight than would otherwise be the case.

18. The Crown submitted that the religious or ideological motivation of an offender which is necessarily established by proof of an offence such as this, is relevant to the issue of community protection, and the assessment of the objective seriousness of the offending. It was submitted, in particular, that the courts have repeatedly recognised that in cases where an offender has not established that he or she has resiled from a previously held religious and/or ideological motivation, the element of community protection will assume even greater importance. Importantly, in terms of the present case, the Crown submitted that in the absence of sworn evidence from the offender:

1. I would not be satisfied that he had renounced his commitment to violent jihad and terrorism;

2. little or no weight should be given to the various statements to that effect he made to Ms Robilliard; and

3. little or no weight should be given to Ms Robilliard’s opinions, in circumstances where such opinions were based, at least in part, upon the offender’s statements.

19. The Crown emphasised that unlike an offence of an attempt, the objective seriousness of the present offending was not to be determined by reference to the proximity of the commission of a terrorist act, but rather by reference to the offender’s conduct, and his intention at the time. In terms of assessing that objective seriousness, the Crown submitted that relevant factors included:

1. the volume, detail and accuracy of the information contained in the documents which were made by the offender;

2. the nature and extent of the harm which was capable of being caused by the acts described within those documents, including the nature of the terrorist attack which was contemplated;

3. the nature and the extent of the publication of the documents;

4. the state of mind of the offender;

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

6. the period of time involved in the offending, including the duration of the involvement of the offender;

7. the depth and extent of the radicalisation of the offender; and

8. the extent to which the offender had been responsible, by whatever means, for indoctrinating, or attempting to indoctrinate others, and the vulnerability or otherwise of the target(s) of such indoctrination (whether actual or attempted).

20. The Crown made a number of further submissions concerning the specific matters that I am required to take into account pursuant to s. 16A of the Act. In doing so, the Crown emphasised that s. 16A(1) requires that I impose a sentence that is of a severity which is appropriate in all of the circumstances of the case, and that in addition to any other relevant factors, I must specifically take into account the matters listed in s. 16A(2) of the Act. By reference to the latter, the Crown submitted that:

1. the offending was objectively very serious, was at the high end of the scale, and was planned as opposed to spontaneous: s. 16A(2)(a);

2. the offender had pleaded guilty at an early (but not the earliest) opportunity, but that this had occurred in the face of a strong Crown case: 16A(2)(g);

3. there was a strong need for general deterrence: s. 16A(2)(ja);

4. the need for personal deterrence was also high in circumstances where I would not be satisfied the offender had resiled from his adherence to the ideology of violent jihad: s. 16A(2)(j);

5. there was a need for adequate punishment: s. 16A(2)(k);

6. the offender was born on 13 October 1995 and is currently 21 years of age, having been 18 years of age at the time of commission of the offence: s. 16A(2)(m); and

7. there was nothing to indicate that the offender had been rehabilitated in any way, particularly given that I would not be satisfied that he had renounced his extremist ideology: s. 16A(2)(n).

21. As to [20](vii) above, it was the Crown’s submission that the renunciation of extremist ideology was, as a mitigating factor, one to be established by the offender on the balance of probabilities. In this regard, and for the reasons previously outlined, the Crown submitted that I would place little weight upon the statements made by the offender to Ms Robilliard in that respect, or upon the report of Ms Robilliard generally. In terms of the offender’s enrolment in the PRISM program, the Crown submitted that whilst that may be a relevant factor, its weight was once again to be assessed in the context of the offender having chosen not to give sworn evidence before me. The Crown submitted that as a consequence, it was a matter deserving of limited weight.

22. In all of the circumstances, the Crown submitted that a substantial sentence of full time imprisonment was the only appropriate sentencing option in the present case.

Submissions of the offender

23. It was submitted on behalf of the offender that any assessment of the objective seriousness of the offending should have regard to the fact that (inter alia) the offender had “produced 143 words in three handwritten notes …. couched in the language of possibility”. It was submitted that the utility of the documents was limited, that they represented little more than a written commitment to a generalised consideration of a potential terrorist attack, and that they established little more than the fact that the offender was prepared, at least at that time, to embrace the ideology underlying such a potential attack.

24. It was submitted on behalf of the offender that generally speaking, the documents were expressed in vague terms, such that it was highly unlikely that a person considering preparing for a terrorist act would have found them to be of any interest. It was submitted that the limited utility of the documents reflected the fact that the offender was operating at an “amateurish level”. It was emphasised that the offender was not found in possession of any other materials which could have been used in the commission of a terrorism offence, and that this suggested that the documents were prepared, and the words written, in a context of a “low capacity for anyone to use the documents in an imminent offence”.

25. To the extent that the statement of facts made reference to the activities and statements of other persons with whom this offender had originally been charged, and with whom he associated at or about the time of the offending, senior counsel for the offender emphasised the need to ensure that the objective seriousness of the single offence to which the offender had pleaded guilty was determined by reference to his actions, and not by reference to the actions of others, or the actions of a particular group as a whole.

23. Senior counsel for the offender acknowledged that the plea of guilty reflected the offender’s acceptance that he knew of the connection between the document(s) he made, and the preparation for a terrorist act. However, it was submitted that his plea of guilty was “not inconsistent” with his explanation to Ms Robilliard that as far as he was concerned, the notes were “empty words” which were said in an effort to try and “appear strong” and be accepted by the members of the group. It was submitted that the plea, in combination with a series of other factors, all pointed to a conclusion that the offender had renounced his previously held radical beliefs and his adherence to terrorism, and that such “public stance” demonstrated an acceptance of responsibility, a facilitation of the process of justice, his contrition and his remorse.

24. Senior Counsel submitted that the short period of time over which the offence was committed was a matter which was relevant to an assessment of its objective seriousness. He also submitted that the period of time which had elapsed between the commission of the offence and the offender’s arrest was significant, there being no evidence that he had committed any offences at all during that intervening period.

25. Senior counsel for the offender made lengthy submissions addressing the issue of the offender’s prospects of rehabilitation, and the associated question of whether the offender had renounced his previously held extremist beliefs. It was variously submitted that I should find on the evidence that the offender had renounced his previous commitment to violent jihad and its accompanying ideology, that he was not “an entrenched radical”, that he had a “low likelihood of recidivism”, that he had “renounced violent jihad in his assessment by Ms Robilliard”, that there was “no evidence to suggest that he remained radicalised”, and that there was “real admissible evidence of a clear potential for rehabilitation”. Aside from Ms Robilliard’s report, the evidentiary basis for such conclusions was said to lie in the offender’s expressed willingness to undergo the PRISM program, his plea of guilty, his conduct between the commission of the offence and his arrest, and the observations made by those who had provided testimonials. In these respects, senior counsel took issue with the Crown’s proposition that the offender’s renouncement of his previous adherence to extremist beliefs was a matter of mitigation that he was required to establish on the balance of probabilities.

26. In response to the Crown’s submission as to the weight to be given to Ms Robilliard’s report, senior counsel’s written submissions included the following (at para. 26):

In (sic) R v Qutami [2001] 127 A Crim R 369 and similar cases do not hold that hearsay evidence is not admissible or is to be given zero weight. In some circumstances it is to be approached with caution, particularly where a psychologist is expressing views predicting future behaviour based on personal opinion rather than a professional assessments (sic) and standardised testing. The Commonwealth Crimes Act however which requires a judge to take into account evidence as the (sic) relevant matters as to commonwealth (sic) sentencing, so far as it is known to the court, was not intended to introduce such restrictions. Nor are statements on what might be provided in evidence and how it is to be treated as other than general policy statements not reading down the legislation in its application to particular cases (sic).

30. The proposition that the Act was not intended to “introduce” the restrictions of which the Court of Criminal Appeal spoke in R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 was said to be supported by the decision in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [21].

31. Finally, by reference to the provisions of s. 16A(2) of the Act, senior counsel for the offender submitted that:

1. the offender had expressed contrition for his actions, both to Ms Robilliard and to members of his family, and that his plea of guilty was further evidence of such contrition: s. 16A(2)(f);

2. the offender had pleaded guilty at an early stage, in circumstances where it was not inevitable that a jury would have concluded that he had the requisite intention and thus convicted him: s. 16A(2)(g);

3. the offender’s subjective circumstances, and in particular his statements to Ms Robilliard, established that he had a low likelihood of recidivism, had renounced violent jihad, and had moved away from his extremist views: s. 16A(2)(j) and (n); and

4. the offender was 18 years of age at the time of the offending, was now 21 years of age, and that his youth was accordingly a mitigating factor: s. 16A(2)(m).

32. The ultimate submission made by senior counsel on behalf of the offender was that an assessment of the objective seriousness of the offending, and what was described as the offender's powerful subjective case, supported the imposition of "a relatively short custodial sentence".

CONSIDERATION

The report of Ms Robilliard

33. It will be apparent from what I have said that there is a significant issue between the parties as to the weight to be attributed to the report of Ms Robilliard, and more specifically, the weight to be attributed to the statements by the offender to her. Before considering the substantive submissions of the parties, it is appropriate that I address the specific issues arising from Ms Robilliard’s report.

34. The significance of Ms Robilliard’s report lies partly in the fact that it records a number of statements made by the offender which bear upon my assessment of the objective seriousness of the offending, and my determination of whether he has renounced any previously held extremist beliefs (the latter being a matter relevant to the assessment of his prospects of rehabilitation). These issues arise against a background of the offender having chosen, as is his right, not to give sworn evidence in his sentence proceedings.

35. In R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369, Smart AJ (at [58]) made the following observations regarding the use of hearsay statements made in reports of the nature of that prepared by Ms Robilliard:

There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements.

36. Spigelman CJ also said (at [79]):

I agree with the observations of Smart AJ as to the limited weight that ought to be given to self-serving, untested statements made to experts which are tendered in sentencing hearings.

37. Those statements of principle have been consistently applied by sentencing judges, and by the Court of Criminal Appeal, including in cases of offending of the present kind. For example, in R v Elomar and ors [2010] NSWSC 10; (2010) 264 ALR 759 Whealy J (as his Honour then was) said (at [162]):

There are two points I need to make in relation to the evidence tendered on the offender’s behalf. First, I accept that there is sufficient confirmation of the history of the offender’s background and upbringing to enable me to accept it as reliable. Secondly, I bear in mind that Jamal has not given evidence before me and the present state of his mind has not been explored or tested in any reliable way. The evidence which I have summarised purports to give indications, one way or another, whether Jamal had espoused jihadist sentiments and whether he poses a risk or not in terms of recidivism in relation to terrorism offences or, for that matter, criminal behaviour generally. It purports to examine his actions and motives in ordering chemicals. The Crown has made the point that the offender was not called to give evidence during the sentence hearing. This is a valid point. In my view, little weight can be given to statements of a self-serving kind in circumstances where the offender has not himself given evidence of his present state of mind. For that reason, the statements need to be treated with a considerable degree of caution (R v Qutami [2001] NSWCCA 353). Indeed, the brief and rather gentle cross-examination of Imam Gilany shows clearly how impressions may be gained by a witness, even an honest witness, when a degree of vigorous probing has been absent from his questioning of an offender (my emphasis).

38. His Honour’s conclusion that little weight could be attached to statements of a self-serving kind where an offender does not give sworn evidence was upheld by the Court of Criminal Appeal (Bathurst CJ, Hoeben CJ at CL and Simpson J (as her Honour then was) in Elomar v R [2014] NSWCCA 303; (2014) 300 FLR 323 at [815]-[818]:

[815] Whealy J was justified in concluding that the failure of Jamal 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 had previously held. As his Honour pointed out, Jamal's failure to give evidence meant that there was no persuasive evidence before the Court in the sentencing proceedings as to his state of mind at that time. The evidence of the Imam and Dr Lennings did not overcome that problem. This is particularly so when Jamal had denied to them that he had committed the offence. In those circumstances, it was not surprising that the Imam gave favourable evidence on the question of rehabilitation because he believed what he had been told.

[816] In the circumstances, Whealy J was entitled to dismiss as self-serving the denials by Jamal to the Imam and Dr Lennings, particularly when such denials traversed the verdict of the jury. Because of the nature of this offence and the importance of its mental element, it was important that his Honour have before him reliable evidence before he could make a favourable finding as to rehabilitation.

[817] On this issue, Whealy J referred to R v Qutami [2001] NSWCCA 353; 127 A Crim R 369. In that judgment, Smart AJ made an observation which has been endorsed by this Court in subsequent judgments:

"58 There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements.

59 There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken, great caution will be exercised in respect of the weight, if any, given to those statements."

In the same case, Spigelman CJ said:

"79 I agree with the observations of Smart AJ as to the limited weight that ought to be given to self-serving, untested statements made to experts which are tendered in sentence hearings."

[818] Because of the denials made to the Imam and Dr Lennings, and because of the failure of Jamal to give evidence, Whealy J was entitled to make the finding which he did. No error has been demonstrated (my emphasis in each case)

39. The same approach was taken by Bongiorno J (as his Honour then was) in R v Benbrika [2009] VSC 21; (2009) 222 FLR 433 where his Honour considered the weight to be given to correspondence written by an offender whilst in prison, and which was said to evidence a renunciation of his commitment to violent jihad. His Honour said (at [148]-[151]):

[148] More problematic are the three letters which Mr Croucher, counsel for Merhi, sought to tender, each written by the prisoner himself. They can be dealt with briefly. The first two of those letters are letters to officers of Corrections Victoria. They concern the question of the prisoner’s classification and his access to certain privileges. These letters, which are dated 14 July 2007 and 18 September 2008, each seek indulgences from Corrections Victoria concerning his conditions of incarceration. They are well written, articulate and eminently suitable for the purpose for which they were written. Each of the letters contains references to Merhi’s beliefs concerning terrorism and allied subjects. He says that he is opposed to the killing of innocent people and expresses similar thoughts. Having regard to the purpose for which the letters were written, the contents are unremarkable.

[149] The Crown opposed the tender of these letters. Mr Croucher argued for their admission on the basis that they provided evidence of the prisoner’s state of mind at the time each of them was written. Accordingly, his argument went, the Court should find that as at the dates of each of those letters Merhi held the views which are expressed in them.

[150] It is trite that a person’s state of mind may be inferred from what he says and what he does. This may make these letters technically admissible. However, the real problem for Mr Croucher is that even if they are admissible the weight which could be given to them in the circumstances has to be very limited. They are self-serving and written for the purpose of the prisoner’s obtaining an advantage — in much the same way as his counsel has put a plea in mitigation of sentence.

[151] In the circumstances I will admit the letters of the prisoner dated 14 July 2007 and 18 September 2008 but, in the absence of sworn evidence from the prisoner which could have been cross-examined, the weight to be given to them is limited indeed. Specifically, they will not be accepted as proof that the prisoner’s state of mind was, at the time they were written, that he was opposed to the killing of innocent people (my emphasis in each case).

40. His Honour’s decision was the subject of an appeal to the Victorian Court of Appeal: Benbrika v R (2010) 29 VR 593; [2010] VSCA 281. In respect of those parts of his Honour’s judgment set out at [39] above, the Court (Maxwell P, Nettle and Weinberg JJA) said (at [586]-[587]):

… the trial judge dealt at length with the submission put below that Merhi should be found to have renounced violent jihad. He rejected it for a variety of reasons in a manner which we think to be wholly persuasive.

[587] Finally, counsel contended that, for whatever reason, the trial judge erred in failing to pay sufficient heed to what counsel contended were Merhi’s “excellent prospects” of rehabilitation. That point has no merit either. As his Honour said, the contention that Merhi had good prospects of rehabilitation was predicated on the submission, which his Honour rejected, that Merhi had renounced violent jihad (my emphasis).

41. As I have noted, senior counsel for the offender relied upon the decision of the High Court in Weininger as authority for the proposition that s. 16A of the Act was “not intended to introduce … restrictions” as to the weight which could be attached to evidence of this nature. However that decision should not, in my view, be read as authority for the proposition that in a case of sentencing of a federal offender, a sentencing judge should simply accept as truthful, hearsay statements of the kind made by the offender to Ms Robilliard. To approach the matter in that way would be to completely ignore the authorities to which I have referred.

42. The absence of sworn evidence from the offender does not render the report of Ms Robilliard inadmissible or irrelevant. The terms of s. 16A(2) of the Act require me to take into account matters that are “relevant” and “known to the Court”. Ms Robilliard’s report meets those criteria. Moreover, Qutami and the other decisions to which I have referred are not authority for the proposition that evidence of hearsay statements can never be accepted. However the weight to be given to Ms Robilliard’s report generally, and the statements made by the offender which are recounted within it, is another matter entirely. This is particularly so in circumstances where the issues to which that evidence goes are very much in dispute between the parties.

43. Much of the concluding paragraphs of Ms Robilliard’s report (paras. 61 and following) amounted to little more than a recitation of the history provided to her by the offender. The definitive opinions expressed were limited and were, in any event, based at least partly upon the statements made to her. Moreover, some of the opinions Ms Robilliard did express were couched in terms which were less than certain. For example, Ms Robilliard said that she thought it “possible” that at the time of the offending the offender “could” have produced a particular profile (at para. 76). In terms of his renouncement of previously held extremist views, she stated (again at para. 76) that the events since his arrest “could” have prompted him to review his position. The somewhat indecisive terms in which Ms Robilliard expressed such opinions may reflect the fact that she herself was unable to unreservedly accept what the offender had told her. In any event, it remains the case that the statements made to her by the offender are untested, and her opinions are limited and, to the extent that she expressed them, at least partly equivocal. In these circumstances, only limited weight can be given to the contents of Ms Robilliard’s report.

The nature and circumstance of the offending: s. 16A(2)(a)

44. In R v Khazaal [2009] NSWSC 1015 Latham J (at [19]-[20]) identified four factors relevant to the assessment of the objective seriousness of offending contrary to s. 101.5 of the Code, namely:

1. the volume, detail and accuracy of the information contained in the document made or collected;

2. the nature and extent of the harm capable of being caused by the act(s) described within the documents, including the nature of the potential terrorist attack contemplated;

3. the nature and extent of the publication of the documents; and

4. the state of mind of the offender.

45. In R v Kahar; R v Ziamani [2016] 1 WLR 3156; [2016] EWCA Crim 568 the Court concluded that, depending on the facts of a particular case, the following matters were likely to require consideration:

1. 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;

2. the period of time involved, including the duration of the involvement of the particular offender;

3. the depth and extent of the radicalisation of the offender (which will, in any event, be a significant feature when considering dangerousness) as demonstrated, for example, by possession of extremist material, and/or the communication of such views to others; and

4. 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 actual or intended indoctrination.

46. I accept the submission of the Crown that in sentencing for offending of this kind the predominant considerations include the protection of the community, the punishment of the offender, the denunciation of the offence, and general deterrence: Lodhi v R [2007] NSWCCA 360; (2007) 199 A Crim R 470 at [89] per Spigelman CJ citing R v Martin (1999) 1 Cr App Rep (S) 477 at 480 per Lord Bingham CJ.

47. In the present case there was no actual injury inflicted upon any person or any property as a consequence of the offending. However, it is necessary to bear firmly in mind that the provision under which the offender has been charged is directed specifically to conduct connected to preparatory acts of terrorism. The seriousness with which Parliament regards such an offence is reflected in the maximum penalty, by which the Parliament has indicated that the threat of terrorist activity requires the imposition of condign punishment: Lodhi at [79] per Spigelman CJ.

46. It follows that the fact that an act (in this case the making of documents by the offender) was committed at an early stage does not necessarily mitigate the seriousness of the offending. Even though the offender’s conduct in the present case did not give rise to any imminent, let alone actual, threat of injury or damage to persons or property, a substantial sentence is nevertheless required: Lodhi at [83] per Spigelman CJ. I bear in mind, of course, that the offender does not appear before me for sentence for actually committing the terrorist act(s) to which reference is made in the documents that he, in part, created. However, such act(s) necessarily inform the nature and gravity of his offending. Moreover, assessing the objective seriousness of the offending in the present case by reference to the number of words written by the offender reflects, in my view, a distorted approach. The emphasis must necessarily be upon the content of what was written, and the sentiments expressed, rather than upon the number of words used to do so.

47. Bearing in mind the conclusions I have reached regarding the limited weight to be placed upon the untested statements made by the offender to Ms Robilliard, I do not accept the term “empty words” to be an apt description of what the offender wrote, in circumstances where the offender expressly referred to (inter alia):

1. the Australian Federal Police building being “a good target”, in the context of engaging in acts of violence;

2. attacking the dogs, a clear reference to police or others in similar positions of authority;

3. attacking Lithgow Gaol, in the context of achieving martyrdom; and

4. engaging in “Gorilla” (sic) warfare for the purpose of achieving martyrdom.

50. Such references cannot, as the offender would apparently have it, be effectively dismissed on the basis that they are simply empty words. There was considerable detail in what the offender wrote. Specific targets of a proposed violent attack were identified. The documents reflect considerable consideration having been given to the form of that attack which, had it eventuated, would have resulted in considerable harm being visited upon both human life and property.

51. Further, and in the absence of sworn evidence from the offender, I am unable to accept his assertions to Ms Robilliard that he was “talking it up to look good to people” in order to “fit in” and “be accepted”, and that he “opposes violence on anyone”. What the offender wrote is, frankly, the antithesis of an opposition to violence.

52. In the circumstances I am satisfied that the offender’s state of mind at the time of the offending was consistent with what he wrote. The plain words used by the offender reflect an unequivocal commitment to violent jihadist beliefs which, in this case, were manifested in a documented plan to engage in a violent attack.

53. Moreover, I do not accept that the offending was “amateurish”. On the contrary, there was a level of sophistication in what the offender wrote, reflected in his specific identification of two proposed targets, his reference to the specific areas in which those targets were located, and his reference to the degree to which those areas might impact upon any proposal to carry out a violent attack. There is no evidence that it was the offender who was responsible for actually identifying the targets. However, the specificity with which he described them is a clear indicator of his knowledge of the connection between what he wrote, and a terrorist act or acts. In that sense, the offending was not spontaneous.

54. I have had regard to the fact that the period over which the offending was committed is limited. However, when one views the content of the documents the period of the offending becomes of less significance. This is particularly so when one considers that the offender made a multiplicity of statements, albeit over a short period, advocating violent attacks.

55. All of these matters reflect an offence of considerable objective seriousness. Put simply, the documents made by the offender were connected with preparation for a terrorist act or acts, directed towards damage to both property and individuals. By his plea, the offender has admitted to knowing of that connection.

56. It was the submission of senior counsel for the offender that viewed objectively, the offending was “below mid-range”. Assessment of the objective seriousness of offending does not require a sentencing judge to attempt to quantify the distance between the actual offence before the Court and the conduct involved in a putative offence in the middle of a range: PK v R [2012] NSWCCA 263 at [25] per McCallum J. However, I should state in any event that I am unable to accept the submission of senior counsel for the offender in this regard. The present offending, for the reasons I have stated, is of considerable objective gravity, falling at a level substantially higher than that which was submitted.

The offender’s contrition: s. 16A(2)(f)

57. The offender told Ms Robilliard (inter alia) that he “regretted” his involvement in the offending. Even if that statement were accepted as truthful, an expression of regret in becoming involved in the commission of an offence does not necessarily equate to an expression of genuine contrition. In the absence of sworn evidence from the offender, little weight can be attributed to his statement to Ms Robilliard in this respect. I do however accept that his plea of guilty is some evidence of his contrition.

The offender’s plea of guilty: s. 16A(2)(g)

58. The offender was arrested and charged on 10 December 2015. The parties agree that the brief of evidence was substantially served by 20 January 2016 and was completely served by 7 September 2016. The indictment alleging the offence to which the offender ultimately pleaded guilty was not presented until 14 November 2016 and a plea of guilty was entered by the offender on that day. However, the Crown acknowledged that the negotiations leading to the plea of guilty had commenced at a time when the matter was still in the Local Court. The Crown expressly conceded that the offender’s plea was entered at “an early opportunity”, albeit not at the earliest opportunity.

59. The Crown’s submissions set out the principles which govern the treatment of a plea of guilty when sentencing an offender for a federal offence. Those principles may be summarised as follows:

1. the decision of the Court of Criminal Appeal in R v Thomson; R v Houlton (2009) 49 NSWLR 383; [2009] NSWCCA 309 does not apply to sentencing for federal offences: Wong v R (2001) 207 CLR 584; [2001] HCA 64;

2. it is not permissible to apply a discount to a sentence for a federal offender on the objective basis that the plea has saved the community the expense of a contested hearing: Cameron v R (2002) 209 CLR 339; [2001] HCA 6 at [14];

3. as a consequence, the range of utilitarian discount identified in Thomson, namely 10% to 25%, has no application to the sentencing of a federal offender: Cameron at 343; [11]-[14]; Tyler v R [2007] NSWCCA 247; (2007) 173 A Crim R 458 at 476; [114];

4. a federal offender can obtain a discount in recognition of a plea of guilty if the court concludes that such a plea demonstrates the subjective mitigating factors of genuine remorse, and/or acceptance of responsibility and/or a willingness to facilitate the course of justice: Cameron at 343; [14];

5. a guilty plea does not entitle a federal offender to a discount on sentence unless one of the three subjective findings referred to in (iv) above is made, or agreed to by the prosecution, so as to warrant some reduction in sentence;

6. a significant factor relevant to the extent of any discount or reduction in sentence is the timing of the plea, and whether it was entered at the first reasonable opportunity: Cameron at 346; [22];

7. there is no scope for an automatic discount of 10% for a late plea of guilty. Subjective findings must justify any discount given, especially for a late plea, and in some cases it may be appropriate that there be no discount at all because there is only an objective utilitarian benefit;

8. the court may specifically quantify the discount which is applied although providing it is taken into account, there is no obligation on the court to do so: Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at 370; [24]; Tyler at [112];

9. the strength of the Crown case may be taken into account in assessing the subjective value of a guilty plea, and the court may consider whether the offender’s plea was motivated by a willingness to facilitate the course of justice, or was simply a recognition of the inevitable. It follows that a guilty plea entered in the face of a strong Crown case should not be afforded as much weight as a plea entered in circumstances where the prosecution case was weak: Tyler at [114]; Cappis v R [2015] NSWCCA 138 at [57].

60. In the present case, the Crown had available to it expert forensic evidence which established that the offender wrote on the three documents in question, and that these documents were handed to other persons, some of whom added to the handwriting. Had the matter proceeded to trial, the Crown would have asked the jury to draw an inference as to the offender’s state of mind from (inter alia) the content of what he had written. In these circumstances, it is difficult to accept the submission made on behalf of the offender that the Crown case was not strong. I must also take into account that although the plea was entered at an early stage, it was not entered at the earliest opportunity.

61. That said, and as I have found, the plea is some evidence of contrition on the part of the offender. The Crown did not, as I understood it, argue against the proposition that the plea was also some evidence of an acceptance of responsibility on the offender’s part, nor did the Crown submit that the offender was not entitled to any discount at all. The amount of the discount is a discretionary matter, taking into account all of the factors to which I have referred. Whilst it is not necessary for me to do so, I record the fact that I regard the appropriate discount to be 15%.

Personal deterrence: s. 16A(2)(j)

62. In my view, given the views that I have expressed below regarding the offender’s prospects of rehabilitation, there remains a real need for any sentence imposed to reflect the need for personal deterrence.

General deterrence: s. 16A(2)(ja)

63. One of the predominant sentencing considerations in a matter such as this is the necessity to deter others who may be minded to offend in a similar way. General deterrence is therefore an important consideration in the sentencing process.

The offender’s character and antecedents: s. 16A(2)(m)

64. The offender is presently 21 years of age, was aged 18 at the time of the offending and has no criminal history. Considerations of general deterrence and principles of retribution are, in most cases of a youthful offender, of less significance than would be the case when sentencing an adult for the same offence. The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to the breach of the law and accordingly, an allowance may be made for an offender’s youth and not just his or her biological age: KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22] – [26] per McClellan CJ at CL.

65. That said, considerations of general deterrence and retribution cannot be completely ignored when sentencing a young offender. There remains a significant public interest in deterring violent, anti-social conduct of the kind in which this offender engaged. Moreover, the emphasis given to rehabilitation when sentencing a young offender may be moderated when he or she has conducted himself or herself in a way an adult might conduct himself or herself, and has committed a crime of violence or considerable gravity: KT at [25] and the authorities cited therein.

66. In the present case, the offender’s subjective assessment of his offending included his statement to Ms Robilliard that he was “immature and stupid”. True it is, that when immaturity of an offender is a significant contributing factor to the commission of an offence, the criminality involved will be less than if the same offence was committed by an adult: BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 per Johnson J at [78]; see also HJ v R [2014] NSWCCA 21 at [56] per Garling J. However, the offender’s statement to Ms Robilliard was in the nature of a “self-assessment” as it were, and was again one expressed in the absence of any sworn evidence. For the reasons I have already expressed, limited weight can be given to it.

67. The offender’s youth is clearly relevant to fixing an appropriate sentence, and I have had regard to it. However, the seriousness of the present offending is such that the importance of retribution and general deterrence cannot give way entirely, or even substantially, to considerations of youth, or indeed the interests of rehabilitation: JM v R [2012] NSWCCA 83; (2012) 223 A Crim R 55 at [108] per Simpson J (as her Honour then was).

The offender’s prospects of rehabilitation: s. 16A(2)(n)

68. As I have previously set out, senior counsel for the offender strenuously submitted that I should find that the offender had renounced his previous commitment to violent jihad and its accompanying ideology. Renouncement of violent jihad ideologies bears directly upon an assessment of the prospects of rehabilitation: R v Rahme; R v Mohammed [2008] 4 All ER 661; [2008] EWCA Crim 1465 at [32]. If a sentencing court is satisfied that an offender charged with terrorism offences has resiled from his previous extremist views, appropriate allowance must be made for that fact when fixing a sentence: R v Touma [2008] NSWSC 1475 at [145] per Whealy J.

69. By his plea, the offender has admitted to knowing of a connection between his making of the document(s) and the preparation for a terrorist act. The particulars pleaded in the indictment to which the offender pleaded guilty included the fact that:

1. the terrorist act or act(s) was (or were) an action or a threat of action involving the use of a firearms; and

2. such act or acts was or were to be done with the intention of (inter alia) advancing a political, religious or ideological cause, namely violent jihad.

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.

71. However it was further submitted on behalf of the offender that the authorities established that “a guilty plea to terrorism offences also constitutes a sign of a movement away from extremist views”. Such a submission overstates the position. In Touma (which was the first of the authorities relied upon by senior counsel in support of this submission) Whealy J said (at [144] – [146]:

144   In the present matter, I accept that some allowance can and should be made for the fact that the pleas of guilty may be taken, to a degree, to express remorse and acceptance of responsibility. Perhaps, even more importantly, the pleas of guilty may be taken, to some degree, to be a drawing back by the offender from the extremist beliefs that motivated the commission of the offences. There are two points I would make about this. First, care, indeed considerable caution, needs to be taken about such a matter. This is because the offender has not given evidence before me, and the present state of his mind has not been explored or tested in any way. There is, as I have said, a reference to it in Mr Champion's report, but this is a matter to which little weight can be given.

145   Secondly, the plea itself, may, however, be taken as a cautious indicator that the offender is in the course of relenting or moving away from his past extremist position. This is a particularly difficult area because it requires the Court to make a prediction about the future behaviour of the offender, in circumstances where there is very little to go on by way of hard evidence. On the other hand, the Court of Criminal Appeal, in Lodhi, made it clear that a significantly heavy sentence will be required to protect the community in a case where the Court is satisfied that a terrorist offender has not resiled from his previous extremist convictions. It must be the case that some allowance or recognition should be made where that is not the position.

146   At the very least, it can be said, in the present matter, that I am by no means satisfied beyond reasonable doubt that the offender has refused to budge from his former extremist position. Rather, there is some reason to accept, having regard to the plea, that he has moved away from, or is in the process of moving away from, such a fanatical and extremist position. A moderate allowance, therefore, should be made to reflect remorse, contrition, acceptance of responsibility and the commensurate fact that, although the community may still require protection, this is at a lower level than might have been otherwise, were it not for the plea.

72. The second authority relied upon by senior counsel in support of his submission was R v Sharrouf [2009] NSWSC 1002. In that case, Whealy J observed (at [49]-[50]):

49 Overall, I accept that the offender has reasonable prospects of rehabilitation, although this must necessarily be a cautious prediction. The offender gave no evidence before me. It is difficult to place very much weight upon the statements made by the offender to Dr Nielssen and Tara Nettleton in the circumstances where the offender has not given evidence concerning his withdrawal from, or rejection of, his previous extremist position.

50 There is some reason to accept, particularly having regard to the plea itself, that he may have moved away from, or, at least, is in the process of moving away from his former extremist position. There is a prospect for rehabilitation in this regard. I repeat, however, that I can only accept this as the situation on a rather cautious basis. If it is the offender's intention to return to the mosque as a place of religious devotion, he and those responsible for him will have to take special care that he is not inappropriately exposed to any degree of radical or extremist tutelage and influence.

73. It is not correct to say that a plea of guilty by the offender constitutes a sign of a movement away from extremist views. It may be a sign, but the caution with which the issue must be approached will be evident from the statements of Whealy J. I find myself in precisely the same position as his Honour. The offender’s plea may be an indicator of some move away from his previously held beliefs, but that can only be regarded as being the position on a cautious basis.

74. A similar approach must be taken to the other matters relied upon by senior counsel for the offender in this regard. The offender’s proposed participation in the PRISM program, the absence of further offending and the observations of the offender by others may indicate a move away from adherence to radicalised beliefs. However once again, in the absence of any sworn evidence from the offender, a cautious approach must be taken. It must also be observed that in cases of this type of offending, issues of rehabilitation assume less significance: Martin at 480; Kahar at [15].

73. I am unable to accept the various submissions set out in [28] above regarding the offender’s renunciation of his previously held beliefs. I am prepared to accept, with some caution, that the offender’s plea of guilty, and the other matters relied upon, may be some evidence of a move away from such beliefs and that they are, as such, indicative of the fact that there is some prospect of rehabilitation. I can put it no higher than that.

The need for adequate punishment: s. 16A(2)(k)

76. Section 16A(2)(k) requires that I take into account the need to ensure that the offender is adequately punished for the offence. That consideration is necessarily encompassed by a consideration of all of the factors to which I have referred.

CONCLUSION

77. The written submissions filed on behalf of the offender suggested that it was open to me to “confirm the prospects of rehabilitation and protect the community by a longer than usual parole period” and that such a course would serve to “reinforce and confirm the deradicalisation”. That appears to amount to a submission that I should make a finding of special circumstances pursuant to s. 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, that provision has no application to a sentence imposed upon a federal offender. As I have noted at [2] above, s. 19AG of the Crimes Act 1914 (Cth) imposes a requirement that I fix a single non-parole period which is not less than three quarters of the head sentence.

78. I make the following orders:

1. The offender is convicted.

2. The offender is sentenced to imprisonment for a period of 8 years and 6 months commencing on 15 December 2015 and expiring on 14 June 2024.

3. I specify a single non-parole period of 6 years and 4 months commencing on 15 December 2015 and expiring on 14 April 2022.

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Amendments

10 April 2018 - Redactions as agreed between the parties.

Decision last updated: 10 April 2018