R v Hatahet

[2022] NSWDC 765

District Court

New South Wales

Medium Neutral Citation:

R v Hatahet [2022] NSWDC 765

Hearing dates:

7 October 2022

Date of orders:

2 December 2022

Decision date:

02 December 2022

Jurisdiction:

Criminal

Before:

Baker SC DCJ

Decision:

(1) The offender is convicted of the count on the indictment.
(2) The offender is sentenced to a term of imprisonment, consisting of a non‑parole period of three years, commencing from 24 August 2020 and a head sentence of five years, which expires on 23 August 2025.

Catchwords:

CRIME — sentencing — offence under Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6 — engaging in hostile activity in foreign country — general and specific deterrence — onerous custodial conditions

Legislation Cited:

Crimes Act 1914 (Cth), ss 16A, 19AB

Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6

Cases Cited:

Farden v The Attorney-General (Qld) (2004) 223 CLR 575

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520

Power v The Queen (1974) 131 CLR 623

R v Biber [2018] NSWSC 535

The Queen v Olbrich (1999) 199 CLR 270

Weininger v The Queen (2003) 212 CLR 629

Xiao v R [2018] NSWCCA 4

Category:

Sentence

Parties:

Fayez Hatahet (the offender)
Commonwealth Director of Public Prosecutions (the Crown)

Representation:

Counsel:
Mr Evers (the offender)
Mr Williams (the Crown)

Solicitors:
Ms Hedberg (the offender)
Mr Maxwell-Cullen (the Crown)

File Number(s):

2020/00123568

JUDGMENT

Introduction

1. On 25 April 2020, the offender, Fayez Ahmed Hatahet was arrested and charged with an offence against s 6(1)(b) of the Crimes (Foreign Incursions and Recruitment Act) 1978 (Cth) (“the Act”) that he, between 25 September 2012 and 13 December 2012, did engage in a hostile activity in a foreign state, namely Syria.

2. The maximum penalty for this offence is 20 years imprisonment.

3. The offender pleaded guilty in the Local Court on 26 May 2021 and was committed for sentence to this Court. On 7 October 2022 the offender adhered to his guilty plea before me.

4. At the sentence hearing the Crown tendered a bundle of material containing the following:

1. The indictment;

2. The agreed statement of facts (The Agreed Facts);

3. The offender’s criminal history; and

4. The offender’s custodial history.

5. The Crown, at the request of the defence, also tendered:

1. A statement by Rodger Shanahan, an expert in Middle Eastern Studies; and

2. A recorded conversation between a Federal Agent and the offender in Türkiye on 19 September 2013.

6. At the sentence hearing the offender gave evidence. The offender also tendered a bundle of material containing the following:

1. A letter by the offender dated 4 October 2022;

2. An affidavit of Mrs Hatahet (the offender’s wife) dated 5 October 2022 attaching records relating to family medical issues and family difficulties; and

3. An affidavit of Sarah Hedberg (the offender’s solicitor) dated 5 October 2022 attaching records relating to the offender’s custodial history and circumstances.

The Facts

The Agreed Facts

7. The Agreed Facts were signed by the offender’s legal representative and by a solicitor on behalf of the Crown on 28 July 2022.

8. The following narrative is taken from the Agreed Facts.

Background

9. The offender was born in January 1976 in Amman, Jordan. The offender’s wife was born in March 1989 in Damascus, Syria. They married in December 2006 in Jordan. The offender has four children with his wife. On 13 December 2005, the offender was issued Australian Citizenship and on 19 December 2005, the offender was issued an Australian Passport.

10. On 8 August 2009, the offender created a Yahoo email account and registered the account under the name Mr Fayez Ahd, and from at least 2012, the offender maintained a Facebook profile, under the vanity name “Abo Mosab Hatahet”.

The Syrian Civil War

11. The Syrian Civil War began in 2011 following protests against the Syrian government over the rising costs of living, unemployment, corruption, the regime of President Bashar al-Assad and the Syrian government’s response to those protests. The war was fought between the Government of Bashar al-Assad against various rebel factions, which were a mix of secularists, Syrian Islamists and Salafi-jihadists. Both the al-Assad government and the various rebel factions have international and domestic allies. The ruling al-Assad regime belong to a minority Muslim sect known as Alawites. In the conflict they are supported by the other minority Muslim sect the Shia Muslims. Most rebel factions are comprised of Sunni Muslims. Between 2012 and 2016 the Syrian conflict attracted many foreign fighters, including from Australia. These foreign fighters joined various Sunni Muslim groups. The Sunni Muslim groups who fought over this time period included proscribed terrorist organisations such as Islamic State and Jabhat al-Nusra as well as other Militant Islamist groups such as Ahrar al-Sham, which have not been proscribed as such. These groups were at times aligned against the al-Assad regime and fought together. Some Sunni Islamist groups inevitably fought each other.

The offender’s incursion into Syria between September-December 2012

12. On 25 September 2012, the offender departed Australia through Sydney International Airport. On his outgoing passenger card, the offender recorded he was traveling to Jordan for three months to visit family. The offender was overseas for approximately one and a half months in total before his return to Sydney, Australia.

Video 1 – “Vid” (22 October 2012)

13. On 22 October 2012, approximately one month after the offender departed from Australia to Jordan, he sent an email from his iPhone using his Yahoo email account to a Facebook email account. The email had the subject line “Vid”. Attached to the email was a 17 second video file. The video depicts a male aiming a rifle (possibly a Dragunov rifle). A voice is heard to say in the background; “Abu Al Baraa sniping the Alawites”. (The Crown contends that this is the offender). A second male voice in the background can be heard saying; “Allah is the Greatest”. The offender later sent this video to another email account later that same day.

14. On 9 November 2012, the offender sent emails to himself from his iPhone using his Yahoo email address. Attached to these emails were videos. These are Videos 2 to 8.

Video 2 (Captures the offender)

15. Video 2 is an 18 second file. The video depicts the offender in camouflage clothing, wearing chest webbing, with a Kalashnikov rifle over his right shoulder, handcuffs attached to the webbing, holding the front end of a recoilless anti-tank weapons system (possibly an SPG9).

16. A male voice behind the camera is speaking Arabic; “Allah is the greatest”. The offender closes his right hand and raises his right index finger, making the Tawhid gesture. The Tawhid gesture represents monotheism, meaning that there is only one God. The male voice behind the camera goes on to say; “Our brother Abu Musaab is holding the B9, Allah bless him, And our brother here. This is to hit the Alawites and the enemies of Islam”. The offender again makes the Tawhid gesture saying, “Allah is the Greatest”. The male voice behind the camera continues; “Allah willing, Allah is the Greatest. Praise Allah. O Allah make their shooting accurate of Lord of the Worlds. Allah is the Greatest, Allah is the Greatest, Allah is the Greatest”. The offender is assisted in carrying the weapons system by another male as they walk out of frame. The offender later that day sent this video to his brother’s email account.

Video 3

17. Video 3 is a 20 second file. The video starts in total darkness. Three male voices say in Arabic; “God is the Greatest”. A light is shone, and the shape of a male can be made out. The second male voice says, “A suicide mission and the storming the Regiment upon Abu Musaab Al-Zarkawi. God is the Greatest. Shoot”. The third male voice says, “Do not put too much light on him. God is the Greatest”. A male fires five single shots. The muzzle flashes are visible in the video. The second male voice says, “Give me, give me. Stop”.

18. Later that day, the offender sent this video to his brother’s email account. On that occasion the email subject was “3”.

Video 4

19. Video 4 is a 54 second file. The video depicts a number of armed males sitting in a room with a Shahada flag, singing Nasheeds (religious songs without music). The song included references to “My heart is longing to the Paradise”, “Virgins in Paradise” and “the ruling of Jihad (holy war)”.

20. The Shahada is a statement of faith for Muslims. The statement professes a belief that Allah is the one and only God and that the Prophet Muhammad is his final prophet. In the video, the Shahada flag is featured in white Arabic writing on a black background. While the Shahada is core Islamic belief and it is not necessarily a statement of extremism, the use of the Shahada flag and variations of it have come to be associated with contemporary jihad. The flag has been translated from Arabic; “There is no God worthy of Worship except Allah and Mohammad is the Messenger of Allah”. The men appear armed with Kalashnikov style rifles and rocket propelled grenade launchers.

21. The offender later that same day sent this video to his brother’s email. On this occasion the email subject was “Fayez2”.

Video 5

22. Video 5 is a 54 second file. The video depicts the same group of armed males sitting in a room with a Shahada flag, singing Nasheeds. This song included a reference to “Victory to the Revolutionists and Death to Bashar.”

Video 6 – “Nasheed” (Islamic Chant)

23. Video 6 is a 54 second file attached to an email with a subject in Arabic and states “Nasheed” (Islamic Chant). The video depicts the same group of armed males sitting in a room with a Shahada flag, singing Nasheeds.

Video 7 – “Bombing”

24. Video 7 is a 23 second file attached to an email with a subject in Arabic that states “Bombing”. The video depicts a street level view of a street, the air is filled with dust and smoke. The video appears to be taken following an explosion, blast or bombing. A male voice behind the camera speaks in Arabic as the camera footage moves through the rubble and says, “Allah is the Greatest, bombings, targeting the headquarter of Ahrar Al-Sham, Allah is the Greatest”. (The Crown contends that this is the offender speaking).

25. Ahrar Al-Sham is also known as the “Islamic Movement of the Free Men of the Levant”. It is comprised of a coalition of Islamist and Salafist groups who united to fight against the Bashar al-Assad Regime. Ahrar Al-Sham is not a proscribed terrorist organisation, however at times it has been willing to co-operate with the al-Qa’ida affiliate Jabhat al-Nusra (JAN). For example, the city of Raqqa in Syria fell to a coalition of JAN, Ahrar Al-Sham and other groups in March 2013.

Video 8 – “Bombing 2” (Captures the offender)

26. Video 8 is a 42 second file attached to an email with a subject in Arabic which when translated is “Bombing 2”. The video is filmed from a rooftop and depicts a smoke plume. The offender speaks in Arabic saying, “Allah is the Greatest, Bombings. The aircrafts of the traitor Bashar”. The offender hands the camera to a male outside the frame. The offender is shown in camouflage clothing, a black beanie, wearing chest webbing, with handcuffs swinging from the webbing and holding a Kalashnikov rifle. The male voice behind the camera says, “Allah is the Greatest”. The offender says: “I swear, we will get your head O Bashar, Allah willing”. The male voice says: “Allah is the Greatest”.

Video 9 – “Abu Musaab” (15 November 2012) (Captures the offender)

27. On 15 November 2012, the offender sent an email to himself through an iPhone using his Yahoo email account. The subject line is in Arabic and translated it states “Abu Musaab”. Attached to that email is a 25 second video file. The video depicts the offender armed with a Kalashnikov rifle and wearing dark grey pants, a light grey long sleeve top, and chest webbing. The offender is wearing a thigh holster and appears to be armed with a pistol. A male voice is heard to say in Arabic: “With God’s blessings”. The offender says, “God is the Greatest”. The offender raises his rifle above his head and discharges a number of rounds over the wall. Other men shout “God is the Greatest”. A male voice says, “The Heroes of the Free Army”.

28. On 19 November 2012 the offender sent this video to his brother’s email account. On that occasion the email was titled “Abo Mosab”. The offender also sent this video to another email account on that same day.

29. On 19 November 2012, the offender sent himself emails from his iPhone using his email account. Attached to these emails were videos 10 to 14.

Video 10 – “Fayez”

30. Video 10 is an 11 second file attached to an email with the subject “Fayez”. A male voice behind the camera says, “God is the Greatest” and the footage depicts a male place a mortar round in a mortar which then fires. The male depicted in the video says, “Be careful not to video record anything, be careful not to video record”.

Video 11 – “Fayez2”

31. Video 11 is a 33 second file attached to an email with the subject “Fayez2”. The video depicts a smoke plume in the distance as a jet flies over head. Males shout: “God is the greatest” on multiple occasions. A male voice says, “It returned, it returned O men!” (The Crown contend this is the offender’s voice). Numerous males shoot at the jet using rifles.

Video 12 – “Fayez3”

32. Video 12 is a 40 second file attached to an email with the subject “Fayez3”. The video depicts a number of vehicles, including a utility with a mounted machine gun and dozens of armed men assembling. A male voice can be heard speaking in Arabic.

33. Male voice 1:

“The Mujahideen (Muslim Fighters) for Your Sake, the day of the Great Conquest - -

Today is the conquest of the Regiment. They came to please You, Your Face O God - -

O Lord keep them safe and make them victorious - -

O Lord, make us victorious against them. O Lord make us victorious, O Most Compassionate, O Most Giving, O Lord of all worlds”.

34. A male passes and says, “Peace be upon you.”

35. Male voice 1:

“Peace and God’s mercy be upon you also. May God make you victorious O Shabab/men”.

36. The Crown contends that male voice 1 is the offender.

Video 13 – “The mother of all battles”

37. Video 13 is a 24 second file attached to an email with the subject in Arabic “The mother of all battles”. The video depicts a number of stationary vehicles, including a truck towing an anti-aircraft gun or howitzer and utility with a mounted machine gun, and dozens of armed men assembling. A male voice from behind the camera shouts in Arabic “God is the Greatest on Men”. The males shout back “God is the Greatest”.

38. Later that same day, the offender sent this video to his brother’s email account. On that occasion the email had the subject in Arabic “The mother of all battles”.

39. This video was analysed by Geospatial Intelligence (Solutions). A comparison was made against geographical features in the video to satellite imagery. By cross referencing a number of features, it was determined that it was “Highly Probable” the video was filmed at the Bab Al-Hawa border crossing on the Syrian side of the Türkiye and Syrian border. The border crossing was a commonly used entry point for foreign fighters crossing from Türkiye into Syria.

Video 14 – “14.5” (19 November 2012)   

40. On 19 November 2012, the offender received an email to his Yahoo email address. The email subject was titled “14.5”. Attached to that email was a 34 second video file. The video depicts a brown coloured dual cab utility vehicle with a machine gun mounted in the tray. The utility vehicle has white Arabic writing on the side and what appears to be the seal of the Prophet Mohammad on the side. The Arabic writing says, “There is no God other than God Mohamad is the messenger of God”. The utility vehicle is seen to reverse to an intersection and fire five bursts down a street. Males can be heard shouting “God is the Greatest” on multiple occasions and “God is the Greatest. Tell him to shoot, tell to shoot the”.

41. Later that day the offender sent this video two times to his brother’s email account. On those occasions the email had the subject in Arabic “Troop 46”.

Video 15 – “Abo Mosab” (27 November 2012) (Captures the offender)

42. On 27 November 2012, the offender sent an email from his Yahoo email account to another email account. The email’s subject was “Abo Mosab”. Attached to that email is a 19 second video file. The video depicts the offender sitting in the front passenger seat of a vehicle. The offender is wearing a black head band with white Arabic writing on the front of it. The offender is also wearing a blue t-shirt and chest webbing over the top. The offender is armed with a Kalashnikov rifle. A Nasheed is playing in the background which has been translated from Arabic as; “With Great Determination and with an undefeated Will” being repeated on multiple occasions. The offender gives the Tawhid gesture and says, “Allah is the Greatest”. A street sign saying 15kms to Atimah and 12kms to Kah is passed. The camera pans around to show another male in the rear passenger seat.

43. On 10 December 2012, the offender sent this video to his own Yahoo email address. On that occasion the email had the subject “Aldana”.

44. This video was analysed by Geospatial Intelligence (Solutions). A comparison was made against geographical features in the video to satellite imagery. By cross referencing a number of features it was determined that it was “Probable” the video was filmed on the outskirts of Al Dana.

Video 16 – “Abo zied townsi” (27 November 2012)

45. On 27 November 2012, the offender sent an email from his Yahoo email account to another account. The email had the subject “Abo zied townsi”. Attached to the email is a 31 second video file. The video depicts a male in black beanie, wearing sunglasses, black shirt and black chest webbing signing. Gunfire is heard in the background. The male sings in Arabic a song that refers to marrying “the Virgins in Paradise”.

Photo of the offender (Posted on Facebook on 6 December 2012)

46. On 6 December 2012, the offender posted an image on his Facebook page. The photograph depicted the offender wearing a black balaclava holding a Kalashnikov style rifle. The rifle appeared to be loaded, as it had a magazine fitted. The offender’s face was partially concealed by a black balaclava. On top of the balaclava the offender was wearing a Shahada head band.

Ten photos sent by the offender on 10 December 2012

47. On 10 December 2012, the offender sent ten photographs to his Yahoo email address.

Photo 1 – The offender holding a M4 assault rifle

48. The first photograph depicts the offender holding an M4 assault rifle. The offender is indoors and standing. The offender’s face is fully visible, he is wearing a black and white shemagh or scarf around his neck and dark green coloured clothing and a beanie. Over his clothing, the offender is wearing chest webbing in disruptive camouflage pattern.

Photo 2 – The offender holding a Kalashnikov style rifle

49. The second photograph depicts the offender holding a Kalashnikov style rifle. The offender is indoors and seated on a couch and is holding the firearm in an aiming pose. Resting on the couch and wall behind the offender is another firearm, a FAL style rifle.

Photo 3 – The offender holding a Kalashnikov rifle

50. The third photograph depicts the offender holding a Kalashnikov style rifle. The offender is again seated on a couch and is holding the firearm, however is not aiming the firearm and is looking directly at the camera. Behind the offender there is Arabic writing on the wall. The white Arabic has been translated and states; “There is no God worthy of worship except Allah.”

Photo 4 – The offender holding an FAL style rifle

51. The fourth photograph depicts the offender holding a FAL style rifle. The offender is outdoors. There is a brick wall and a number of vehicles behind the offender. The offender is crouched and aiming the firearm.

Photo 5 – The offender standing in front of a tank

52. The fifth photograph depicts the offender standing outdoors in front of a probably unserviceable tank. In the background of the photograph there are numerous walls, fences, hills and trees. Initial analysis of this image by Geospatial Intelligence has determined it is probable that this image was taken in Syria. This conclusion is based on the camouflage pattern on the probably unserviceable T-62 tank. The camouflage pattern on the tank is unique to Syria.

Photo 6 – 25 artillery or tank shells

53. The sixth photograph was emailed at 06:33 and was untitled. The photograph depicts more than twenty-five artillery or tank shells.

Photo 7 – The offender with another male holding Kalashnikov rifles

54. The seventh photograph depicts the offender with his arm around a male. Both men are holding Kalashnikov rifles. The men are seated outdoors with a number of trees in the background. The offender is also wearing a black head band. The black head band with white Arabic has been translated and states; There is no God worthy of worship except Allah.

Photo 8 –The offender with three males

55. An eighth photograph depicts the offender with his arms around three males. The men are wearing a mixture of disruptive camouflage pattern clothing and civilian clothing. Two of the men are wearing chest webbing and one is armed with a Kalashnikov style rifle. The offender himself is wearing a camouflage t-shirt and camouflage pants.

Photo 9 – the offender with two males all armed with rifles

56. The ninth photograph depicts the offender with two other males. All three men are armed with a Kalashnikov style rifle, wearing black balaclavas and chest webbing. The offender and another male are wearing a black head band. The black head band has white Arabic writing on it which translates to; There is no God worthy of worship except Allah. The men appear outdoors and standing in front of a wall. The wall was painted with horizontal stripes (black on the top, white in the middle and black on the bottom).

Photo 10 – the offender with another male both armed with rifles

57. The tenth photograph depicts the offender with his arm around a male. Both men are armed with a Kalashnikov style rifle, wearing chest webbing. The men are outdoors with a brick building, rock walls and hills in the background. Metadata obtained from this image suggests that the photograph was taken at 12:54pm on 11 October 2012 on an Apple iPhone 4.

58. On 10 December 2012, the offender sent himself emails from his iPhone using his Yahoo email account, attaching videos 17 to 19.

Video 17 – “Abu Zaid El-Tunisi”

59. Video 17 is a 31 second file attached to an email with the subject in Arabic “Abu Zaid El-Tunisi”. The video depicts a male in black cap, white shirt and black chest webbing, holding a Kalashnikov rifle singing a Nasheed. The voice of a male (not in the camera frame) says; “Peace, Mercy and God’s blessings be upon you”. The male in the camera frame says: “Peace be upon you”. The male not on camera says, “Peace be upon you also”.

60. The male on camera sings:

“Peace be upon Taliban, Taliban, O Paradise of the Most Merciful, Sunnah (Islamic Traditions and Legal Practices) after the Quran, a virgin in Paradise. Sunnah after the Quran, a Virgin in Paradise. We will return to Kabul, Kabul, no Bush and no Powell, O disbelief do not try, there’s a Virgin in Paradise, O disbelief do not try, there’s a virgin in Paradise... Come on O Bin Laden come on, come on do not suspend hostility... Come on O Bin Laden, there’s a Virgin in Paradise. Come on O Bin Laden, there’s a Virgin in Paradise.”

Video 18 – “Abu Zaid” (10 December 2012)

61. Video 18 is a 30 second file with the subject in Arabic “Abu Zaid” and depicts the same male as before singing a Nasheed.

Video 19 – “The troop” (10 December 2012)

62. Video 19 is a 24 second file with the subject in Arabic “The troop”. The video is filmed from the rear of a moving utility vehicle and depicts a male in black beanie and white and red scarf, wearing camouflaged clothing and armed with a Kalashnikov rifle. The voice of a male (not in the camera frame) says; “God is the Greatest”. (The Crown contend this is the offender’s voice). The male in the frame says, “Video record, Video record (indistinct) God is the Greatest”. The male discharges a number of rounds into the air and continues to say; “There is no God but God, Mohamad is the Messenger of God”.

Video 20 – “Abo doujana” (11 December 2012)

63. On 11 December 2012, the offender sent himself an email from his iPhone using his Yahoo email account with the subject “Abo doujana”. Attached to that email is a 24 second video file. The video is filmed from the outside of a vehicle. The video film depicts a number of men dressed in a mixture of camouflage clothing and civilian clothing. One man in the back of the vehicle is resting a rifle on the ground. The voice of a male (not in the camera frame) states; “The Mujahideen brothers on their way to free the Land of Al-Sham (the Levant) from the Nusayris (Alawites)” (The Crown contends that this is the offender’s voice). The video pans through the inside of the vehicle showing a number of Kalashnikov style rifles piled up and a light machine gun on a bi pod. The male voice says, “This is the PKS, this is brother Abu Ahmad, Brother Abu Shadi” as the camera pans through the vehicle. The men appear to be talking; however, conversation is hard to make out. There is a Nasheed playing loudly in the vehicle. Towards the end of the video the camera faces out the front windscreen of the vehicle showing the street.

Video 21 – “F4” (11 December 2012)

64. At 05:00am on 11 December 2012, the offender sent from his iPhone to his Yahoo email account an email with the subject “F4”. Attached to that email is a 40 second video file. The video depicts destroyed buildings in rubble. As the camera footage moves through the rubble a male in a white Adidas tracksuit, black cap, black chest webbing armed with a Kalashnikov rifle is seen.

65. Male voice 1 behind camera:

“The bombings of Bashar Assad aircrafts, O Allah”.

Male voice 2:

“The owner of this house…”

Male in white tracksuit:

“May Allah curse you O Bashar. Look at the bombings, O people look at this. These are the reforms of Bashar the traitor, the dog, the coward. He bombed us with aircrafts”.

Male voice 1 behind camera:

“Bombings of Aircrafts MEG”.

Male in white tracksuit:

“Bombings of Aircrafts. We will continue our Jihad against you O”.

Male voice 1 behind camera:

“Allah is the Greatest”.

Male in white tracksuit:    

“Allah is the Greatest over you O Bashar. Allah is the greatest. Allah is the greatest”.

66. The Crown contends that Male voice 1 behind the camera is the offender.

The offender’s return to Australia (13 December 2012)

67. On 13 December 2012, the offender returned to Australia through Sydney International Airport on flight EK412. On his incoming passenger card, the offender recorded he spent most of his time in Jordan.

68. Following his return, the offender was interviewed by ASIO over the course of six months.

Image posted on Facebook on 13 March 2013

69. On 13 March 2013, the offender posted an image on his Facebook page. The image depicted five men wearing various forms of face coverings. Four of the men were holding Kalashnikov style rifles. Behind the men was a wall. Partially visible and draped on the wall was a black Shahada flag. The post also included the caption in Arabic “Sunni fighters in Al Sham”. The Sunna refers to the Muslim community. Al Sham refers to a geographical area comprising part of Syria.

Image posted on Facebook on 23 March 2013

70. On 23 March 2013, the offender posted an image on his Facebook page of a male. The image depicts the male smiling and saluting. The post includes the caption; “Martyrdom of brother Abu Ahmed El Masri on the land of the Sham and three children may god accept the martyrdom.

Video uploaded to Facebook on 31 March 2013

71. On 31 March 2013, the offender uploaded a video to his Facebook page. The video was posted with the description (translated from Arabic) Abo Mosab the Syrian. The video is the same video that was sent from the offender’s iPhone to his Yahoo email account with the subject “Abo doujana” (Video 20).

Additional evidence at the sentence hearing

72. The offender, by way of a letter to the Court dated 4 October 2022; a transcript of an interview between the offender and an AFP agent in 2013; and oral evidence, presented evidence concerning the circumstances surrounding his incursion into Syria in 2012 and his return to Syria in 2013.

The letter

73. The offender wrote a letter to the court. In that letter the offender sought to provide insight into his offending and how he views his offending today.

74. He said that he is close to his family, who are Sunni Muslims but are not that religious. Growing up, his family regularly travelled to Damascus, Syria as his family is originally from there and he has relatives who live there. His wife’s family lived in Syria until 2011 when the Syrian people took to the streets to peacefully protest against President Bashar al-Assad.

75. Al-Assad launched a brutal campaign against his people and gunned down many unarmed protestors. The offender wrote “what followed was a relentless assault of barrel bombs and gunfire which took the lives of over 600,000 men, women and children.” He said, “the use of chemical weapons was deployed throughout these attacks by al-Assad resulting in the death of hundreds.” As a result of the war, some of his wife’s close family fled Syria for Jordan.

76. However, his wife’s 18-year-old brother remained in Syria. He was a soldier in the Syrian army under al-Assad. Military service is compulsory in Syria, so he had no choice but to serve. In 2012, he fled his post after refusing to shoot unarmed civilians. As a result, he was captured and was held somewhere in Aleppo, Syria. The offender was given this information by his father and wife’s brother. The offender wrote, “Having been raised in the Middle East, family plays a very important role in our lives.” Seeing the distress this caused to his wife and her family meant he was eager to secure his brother-in-law’s release by offering money as ransom.

77. The offender said that in 2012, he went to Jordan to visit his family and father, who had cancer. The offender was informed of the potential whereabouts of his wife’s brother by his father-in-law. The offender made his way to Aleppo which was controlled by the Free Syrian Army (“FSA”) at the time. He met with them and asked for their help. He said they would allow him to stay. However, if the city was attacked, he said he would be required to assist them in defending it, and also, they instructed him to purchase a weapon as it was up to him to defend himself. The offender bought a weapon off people in the FSA. The offender wrote it is normal for people in the Middle East to have firearms. The offender did not think this was ideal but agreed because he thought he would be able to find his brother-in-law quickly and leave before any real fighting could take place.

78. The offender was unable to find his brother-in-law during the three weeks he remained in Syria. He said he stayed with the FSA while in Syria, who he emphasised are not a designated terrorist organisation. He admitted helping carry weapons and removing debris from collapsed buildings. He said, “the most important thing to mention is that in one way or another I did aid in fighting al-Assad.” However, he said at the time he entered Syria his intention was not to fight but to help find his brother-in-law.

79. The offender wrote that had he known it was illegal to do these things he would not have done them.

80. In 2013 the offender again travelled to Jordan to visit his father who was still sick. While in Jordan, his wife’s family received information in relation to his brother-in-law. The offender travelled from Jordan to Türkiye via Cyprus. When he arrived in Türkiye, he travelled by taxi into Syria where he met a contact. He was kidnapped and later told that the contact was killed. In his letter the offender said he was tortured and forced to film a video asking his family to pay a ransom for his release. He remained in captivity for approximately 20 days at which point he was driven to the border in exchange for money.

81. Upon his return to Australia, he found it difficult to adjust to normal life and to return to work. He suffered from depression and anxiety and after seeing a psychologist, began taking anti-depressants. In 2015 his father passed away which was difficult for him. He said his family also faced financial hardship as a result of the ransom they had paid for his release.

82. The offender wrote “I wish I had not done” – referring to his offending – “as it was illegal and in hindsight, I should have contacted a lawyer before going and asked whether or not it was acceptable to go.” He said he is grateful to live and raise his children in a free society like Australia. He wrote that he wishes to close this chapter of his life, go back to work and return home to his wife and children.

AFP Interview with the offender

83. Following his release for ransom after his second visit to Syria in 2013, the offender was interviewed by a Federal Agent. An AFP Record of Conversation was tendered by the Crown. Attached were photos taken of the offender’s injuries incurred while he was tortured. In that interview the offender provided details regarding his reason for returning to Syria, with whom he associated, his detention and torture and the process of negotiation for his release.

The offender’s evidence

84. The offender also gave the following evidence at the sentence hearing.

Motivation for his incursion into Syria

85. The offender gave evidence that half of the offender’s family lives in Damascus, Syria and half has remained in Jordan. While his wife was born and raised in Syria, his wife’s family subsequently relocated to Jordan as refugees. This involved crossing the border between Damascus, Syria and Jordan.

86. His wife’s brother undertook mandatory service in the Syrian Army after finishing high school. However, the regime was brutal. His brother-in-law was ordered to shoot innocent people but refused to do so. He said because of this, he was captured, imprisoned and tortured in Syria for approximately one and a half years.

87. On 25 September 2012, the offender departed Sydney, Australia to Jordan. His intention when he departed was to visit his father who had cancer and was in his final stages of life. When asked whether he also intended to travel to Syria when he departed Australia, the offender responded, “not at all.”

88. While the offender was in Jordan, he gave evidence that his father-in-law received a call from his brother disclosing information about the possible whereabouts of the offender’s brother-in-law who had been captured. The offender began to discuss ways to help find his brother-in-law, with his father-in-law.

89. According to the offender, his father-in-law asked him to travel to Syria. His father-in-law and other members of his wife’s family were living in Jordan under refugee law. He said if they left Jordan, they would not be able to come back due to their refugee status. The offender, on the other hand, held an Australian passport which made him the only one capable of undertaking the travel required to enter the relevant area of Syria to locate his brother-in-law. The offender also said that he had the means to do so.

90. Accordingly, the offender made the decision to travel to Syria to look for his brother-in-law. He gave evidence that he would not have entered Syria had his brother-in-law not gone missing.

91. The offender said he travelled to the border area of Aleppo, Syria, which is controlled by the Free Syrian Army. This involved flying from Jordan to Istanbul, Türkiye, taking a flight to Antakya and then crossing the border by way of taxi to the border area of Aleppo, Syria. Video 15 shows the offender travelling in a vehicle near a town called Al-Dana which is approximately 50 km west of Aleppo and about halfway between Aleppo and the Turkish border with Syria. The offender said he travelled to this area in Syria to meet a contact, named Mohammad, who was a member of the Free Syrian Army. The offender gave evidence that he had not been to that area before, which is controlled by the FSA, and Mohammad was to guide him around. The offender stayed in an FSA compound in the area.

92. The offender said that he remained in Syria for a maximum of three weeks, after which he went back to Jordan and stayed there for 3-4 weeks before flying back to Australia. The offender gave evidence that he left Syria because he lost hope of finding his brother-in-law and things became more dangerous for him. He said, “I’m going to start getting involved with something, I’m not about to, and there’s nothing for me there to help even, I’m not expert, I’m not a fighter.”

93. The offender said that when he went to Syria, he did not think he was harming Australia in any way and did not want to harm Australia. He said “if today, they” – meaning Australia – “need me here, I’m ready to give my blood for it. This is my homeland…if anyone tried to harm Australia, this is against our belief, we have to defend it to death.”

Hostile activities

94. The offender said that his motivation for going to Syria “was not at all to join any or fight or carry a weapon” and that the “only reason I just tried to help my brother-in-law, that’s it.”

95. Under cross-examination, the offender said that he knew the FSA was an active party in the civil war that was taking place in Syria. However, he said that he “wasn’t intentionally going to join them or be part of them.” Nonetheless, the offender said it was a fight where he felt he ended up on the right side.

96. In order to remain in the FSA controlled area of Syria and reside with the FSA, the offender said he had to engage in activities to help the FSA. He said:

“I used to clean for them, sometimes the dishes. I used to carry some weapons from here to there. When they leave, I have to be with them because cannot stay behind. This is also a security issue for them because I’m someone came from Australian country. Like they’re already suspecting me of maybe being an agent, so I’m controlled by them.”

97. Under cross-examination the offender said that he assisted in the fight against the Syrian regime by “carrying stuff…or being there…or support verbally.”

98. In evidence the offender admitted that he was provided with a rifle weapon. However, he said that it was for his protection and safety.

99. The offender also admitted to wearing camouflage gear and a combat vest during his time in Syria and gave evidence that he had to wear this clothing so that he did not appear different to FSA members.

The Videos

100. The offender gave evidence that he received many videos, which he kept to remember his time in Syria. He said he deleted some of the videos he received. When the offender was asked why he sent these videos to himself by way of email, he said:

“This is something happening in my homeland, and I liked to document all these things for me, or for the future like the next generation… this is normal for us and to keep these things is to remind us…what’s happening to our family there, to our land being destroyed.”

He said that he is in the videos where he is depicted, and not those videos where he is not. He said he did not take the videos.

101. Under cross-examination the offender said “I don’t really remember if I watched them…I keep them, yeah, but I wasn’t looking at them every night or every day, I, I just regarded them. I even forgotten…some of them were there.”

102. On 22 October 2012, approximately one month after the offender travelled to Jordan, he sent himself an email attaching Video 1. The offender was asked whether he was in Syria at the time he sent that video to himself. He said “firstly, I can’t send Syria any video because there’s no internet. There’s no electricity even. There’s no water.” The offender was also asked whether the voice heard in the video saying the words “Abu Al Baraa sniping the Alawites” was his. The offender said, “I didn’t say – I wasn’t there.” He was asked whether he took the video. He said, “No I didn’t take it” and gave evidence that he was not present in the room with the man in the video who was holding or firing a rifle out of a window.

101. Under cross-examination the offender was asked why it was important for him to send this video to himself. The offender said “it’s not important for me, no. But I’m like for memory…I’ll keep it, I don’t care about it like it just doesn’t bother me.”

102. On 9 November 2012, the offender sent himself Video 2 which the offender confirmed during evidence-in-chief depicts himself (Abu Musaab) wearing a camouflaged vest and moving an anti-tank weapons system (B9). He said this was at the compound where they were staying and that he helped them to put it in their cars. He was asked whether he understood at the time that it was a weapon that would be used in fighting. The offender said “I don’t know…I just carry and that’s it. I never even went to training and army training…after high school.” Under cross-examination the offender agreed that he showed off next to the tank when he first arrived in Syria.

103. In Video 2, the offender agreed he is depicted making the “Tawhid gesture” which involved the offender raising his right index finger. The offender explained that the Tawhid gesture is what Sunni Muslims do every day, five times a day, as a prayer movement. He said it means “God is one” and that it “is about our faith.” He was asked whether there was a particular reason he made the gesture at the time he carried the weapon. He said, “I’m saying ‘Al-Nur Allah’… meaning God will help us to defeat the dictator… to me it mean Allah watching this gestures, and justice happening to my people.”

104. The offender also sent himself Video 3 that same day and later that day, the offender sent this video to his brother’s email account. The offender gave evidence that he did not film the video himself. He said that one of the soldiers in the FSA had many videos and the offender asked him “send me all what you have, yeah?” The soldier sent them to the offender. The offender was asked why he sent Video 3 in particular to himself and to his brother by email. The offender said “I don’t know that video, like who is Abu Musaab? I didn’t even take that video. Why should I take that video?” When pressed as to why he sent the video to his brother, the offender said “I thought my email maybe is not really on because I never used it. Like…I didn’t read it much, so I thought I send it to my brother and myself or I asked him to keep it and send it to me…in case I lose it in my one, I still have it in his one.”

105. When questioned about Video 9 which shows the offender walking up to a wall in the compound and firing a weapon, the offender said “I wish I never done it, but when I bought that…the AK-47, as every man…everyone loves to try that. I never tried it before so I want to fire it. Like, I told the guy, ‘can you take video of me firing? Just for show off.’” The offender was asked whether he knew who was on the other side of the wall. The offender said “no-one. Did you hear anyone fire back?” The offender was asked whether there was anyone he was trying to shoot at in particular. The offender said “nothing…just I’m trying to learn how to use it over the wall, that’s it.” He said he asked someone to take a video of him firing the weapon to remember himself holding the weapon.

106. Under cross-examination it was put to the offender that he had no idea how far the bullet was going to go. The offender said “the whole city was, half of the city empty. The next wall was 20m away.” The offender said, “we looked before, we looked before taking that video, over the wall.” It was put to the offender that he did not have good control over the direction the bullet was going to go because of the way he fired the gun. The offender said, “not really.” It was put to the offender that it was a wildly reckless thing to do. The offender said “yeah it is, yeah, yeah. I regret that now.”

107. The offender was asked whether he ever fired a weapon at another person whilst in Syria. The offender said, “never ever.” The offender said that while he was in Syria he never injured or harmed another person in the course of war or battle.

108. The offender was asked whether he took Video 7 titled “bombing” and he said “no.” He was asked whether he is the person in the video saying the words “Allah is the greatest. Bombings target the headquarters of Ahrar Al-Sham, Allah is the Greatest”. The offender said “no.” The offender said that he had the video because “even back then, the start of the revolution, everyone wants to keep video of destruction and what’s happening in the ground to let the world know what’s happening, the genocide committed by the regime against the ‑ its own people.”

The Syrian government

111. When questioned whether he entered Syria because he wanted to overthrow the Assad regime, he said “no, not at all.” He said, “it wasn’t at all to join any or fight or carry a weapon…the only reason I just tried to help my brother-in-law, that’s it.” The offender gave evidence that most fighters cross into Syria from the north of Jordan. He said that from where his family resides in Jordan, it would have taken him just one hour to be inside Syria and cost only $200. However, the offender flew into Türkiye and then to Antakya to cross the border, which involved “risk,” spending a lot of money and leaving his family. He said, the reason he travelled so far north is because the area he travelled to is primarily controlled by the FSA, whom he associated with to find his brother-in-law.

112. However, the offender also gave evidence that he is “against the Assad regime” because he is “for democracy” and wants the “people to get their right for freedom” and does not deny that he is against the regime. Under cross-examination it was put to the offender that he hates Bashar al-Assad. The offender said, “who loves him?” and “yeah, I hate him…I was clear from the first minute…I am against any dictatorship in the world.” It was also put to the accused that he hates the government of Syria. He said “yes.”

113. The offender was asked who he understood the Alawites to be, referring to Video 1, in evidence and said, “the regime supporters” whom he said are the supporters of Bashar “al-Assad…the dictator.”

114. The offender said he was willing to show the FSA support for two reasons. Importantly, he gave evidence that his “number one” reason was to “support them to get their freedom” meaning to support the FSA to secure the liberties of the Syrian people, whom the offender opined were living under brutal dictatorship. His second reason was to get the help of the FSA to find his brother-in-law.

115. I note that in Dr Shanahan’s expert statement he described the FSA goal was to overthrow the regime of Bashar al-Assad by force and replace it with a new Syrian Government.

116. The offender accepted that he is depicted in Video 8 (titled “Bombing two”). The offender also accepted that he can be seen saying “I swear, we will get your head O Bashar, Allah willing”. The offender was asked why he said those words. He said “because…from the vicious way of seeing – of killing innocent people…because I hate him. And he also got my brother-in-law and torturing them, torturing him. He killed cousins of mine. He destroyed my family and all buildings.”

117. The offender was directly asked whether he was in Syria because he hates Bashar al-Assad. He said “not. If I wanted to go there and fight, I’ll stay there. Why should I leave after three weeks to come back here?”

Any religious motivation and the Nasheeds

118. Under cross-examination the offender was asked whether his involvement in the Syrian war had a religious purpose. He said, “not really…I’m taking the freedom and the safety for my own people, and I hate the dictator.” He was also asked whether there was a religious aspect to the civil war. The offender said, “nothing at all.” The offender said, “I am Muslim Sunni.” And was asked whether his religion formed part of the reason he was in Syria at the time. He said:

“not at all. We don’t see it that way, because it’s, it’s nothing - there’s no motivation, like, there’s no religious motivation. It’s just human motivation towards my wife, towards my family, that’s, that’s it, like, how every, every, every man, you know, in every humankind will do the same in my position.”

119. The offender gave evidence that in order to associate with the FSA one is not required to be a member of a particular faith or sect. He said, “anyone can join…even non-Arabs.”

120. The offender was asked whether the group he spent time with was primarily comprised of Sunni Muslim men. The offender said, “when you talking about Sunnis in Syria, that means 95% of the population.” He said, “there’s some Christian, there’s some Alawites in the Free Syria Army, there’s some Sunnis, there’s some Shiite…it’s a mix.”

121. It was put to the offender that he wore a headband with a Shahada flag on it (Video 15). The offender said, “not Shahada flag, it’s Allah Akbar” meaning “Allah is great. And that’s what we believe, that’s my belief.” It was put to the offender that it is a statement of creed. The offender said, “I’m not denying, I am a western Sunni.” It was put to the offender that white writing on black is distinctively Sunni. The offender said, “The flag, your Honour, it’s a black flag, it’s saying there’s no God except Allah, that’s our belief.” The offender said “if there is our organisation name, that means this is organisation” but the flag in the photo did not have a name for any organisation.

122. The offender was asked whether Alawites are a race with a distinctive religion. The offender said, “it’s not a religion, it’s a race…I’m not against the race.” He said “they” – meaning some Alawites – “are also against the regime…because the regime has committed genocide.” Under cross-examination it was put to the offender that he liked having a video showing somebody sniping the Alawites. The offender said, “not really I don’t like anyone to be harmed”.

123. The offender was asked about some of the videos which contained men singing Naheeds and whether Naheeds are religious songs. The offender said “it’s not religious. It’s a song.”

124. Under cross-examination, the offender was asked about the lyrics of the Nasheed contained in [15] of the Crown Statement of Facts. The offender was asked whether they are in-part religious. The offender said, “I’m not a scholar to tell you this is religious or note.” It was put to the offender “there’s an indication of the creator. There’s a reference to virgins in paradise. There’s a reference to Jihad… Come on oh Muslim get up…”. The offender said “you know…they’re singing about the paradise, Gangsta’s Paradise. Is that religious or gangster.” The offender repeated he is not a scholar. The offender was then asked why he would not answer these straightforward questions. The offender said “sorry” and then that he could not hear the Crown prosecutor. It was put to the offender that he was being deliberately obtuse. The offender said “no, no the problem is I can’t hear you properly, that’s all.” The questions were not pressed.

125. It was put to the offender that the Nasheed in [18] of the Crown Statement of Facts is a song that combines religious ideas with wishing death on the president of Syria. The offender said, “yeah on al-Bashar yeah.”

126. The offender gave evidence that he did not film these videos containing Naheeds, that the soldier from the FSA provided him with them and that he sent them to himself because he wanted to have these videos as memories. Under re-examination the offender said that he did not think about the lyrics in the Naheeds.

The offender’s return to Syria

127. In 2013, the offender travelled overseas with the intent to return to Syria. He gave evidence that his father-in-law had said to him “please try to help me… I have hope maybe he’s alive.” The offender said that someone told his father-in-law he could pay $5000 in ransom to get the brother-in-law out. The offender gave evidence that he was supposed to meet the man who was going to help him rescue his brother-in-law. He said he called them before they were supposed to make an exchange to tell them he had the money.

128. Before the offender had entered Syria, he said he was held at gunpoint, put into a van and detained in a room for a number of days during which time he was tortured. The offender’s kidnappers sent a voice message from the offender’s phone to his family, demanding money from them in order for his release. The offender’s family paid $60,000 USD in exchange for the offender’s release. On payment of that money, the offender was released to his brother in Türkiye.

129. While the offender was being held hostage, his wife and family contacted the Australian embassy in Jordan seeking assistance. After his release, the offender spoke to an officer from an Australian government agency in Türkiye. The offender participated in an interview with the AFP officer. The offender gave evidence that he told the officer the truth about what happened to him in Syria.

130. While the offender was kidnapped, he was tortured. This included electric torture, being beaten, hanging for long hours and a process called a “chicken wing” which involved being handcuffed to a metal bar and being hung from his legs towards his hands. Images were taken by the officer of the offender’s injuries and tendered on sentence.

Other evidence

131. The offender gave evidence that the experience of being captured and tortured affected him mentally in many ways. He also said that he incurred a debt because of the ransom, and he paid back around $40,000. He also said he could not continue working as a truck driver when he returned due to his nerves being damaged. He had psychological counselling for two years after he returned but said that the counselling did not really help because his family needed money and they needed help mentally and physically. He said he couldn’t cope with this and soon after his father died.

132. The offender said that in 2019 he committed various forms of credit card fraud in order to pay back his debt and he began associating with “the wrong people”.

133. The offender gave evidence that he has no intention of returning to Syria.

134. He also gave evidence concerning his time in custody. He said that following his arrest he has not been able to see his children face to face. For the first four months he was not able to have contact with his wife. He also said when speaking to his wife he had to speak in English and was not allowed to speak in Arabic and his wife does not speak English well. The offender also said that his wife contracted the coronavirus and was hospitalised, and his children were left without someone to care for them.

135. The offender said that following his arrest he was transferred to the High-Risk Correctional Centre (“Super Max”) at Goulburn. For the first six months he was not able to mix with any other prisoners. After six months he was able to associate with others one and half hours a day for two days every two weeks and three hours every fortnight. The offender also described his cell as a very tiny cell with no windows and as being 3 metres x 1 metre with a yard being 2 metres x 1 metre.

136. The offender said that it was only in the last six to eight months that his conditions have improved, and he is able to undertake programs and can be out of his cell for two hours a day and mix with two people. He also said he had over 186 days lockdown due to staff shortages and the coronavirus. He said the conditions have affected his health and that he has high blood pressure and diabetes.

Additional evidence in the offender’s subjective case

137. In determining an appropriate sentence, it is necessary for the Court to have regard to both the objective facts surrounding the commission of the offences and any other personal circumstances of the offender.

Affidavit of Mrs Hatahet

138. The offender’s wife said that when the offender went to look for her brother in 2013 the original plan was for him to go to Türkiye. She said, “I can’t remember exactly what happened but somehow he ended up having to go to the border between Türkiye and Syria.” She said that after the offender was kidnapped, he was a different person, both physical and mentally. She said this had a huge effect on their lives. As the offender could no longer work, Mrs Hatahet became financially responsible for the family.

139. When the offender was arrested in April 2020 during the lockdown, the family’s finances were blocked for a week, they were asked to move out by their landlord, their car stopped working, they had no internet access and were not allowed to visit the offender.

140. Mrs Hatahet said she does not know how much longer she can bear the sole responsibility of looking after their four children. She has regular panic attacks and has been diagnosed with depression. One of their sons who has ADHD began to have behavioural issues and was bullied at his school. He had to move schools as a result of the difference in treatment he received due to his faith and news stories about his father. Mrs Hatahet is also the carer for their other son who has a hole in his heart, asthma, and a mild intellectual disability. A psychological assessment report in relation to him was annexed to the affidavit setting out his difficulties. One of their daughters sees a psychologist and does not have many friends at school, while their other daughter does not really remember what it was like to have her father around.

Affidavit of Sarah Hedberg (the offender’s solicitor)

141. The offender’s solicitor, Ms Hedberg swore an and affidavit. Annexed to Ms Hedberg’s affidavit is a Custodial History Report and various other documents relating to the onerous conditions of custody during COVID-19 and during the offender’s custody.

142. In her affidavit, Ms Hedberg stated that the offender had limited access to a yard to exercise and was “let out” of his cell into an outdoor caged area of approximately 1 x 2 m squared each day for a period of time. The offender was subjected to 157 lockdowns in May and August of 2022. The offender did not spend any time out of his cell on 151 of those lockdowns. He was subjected to additional lockdowns in September 2022 as well.

143. Due to the offender’s status as an Extreme High Risk Restricted (EHRR) inmate, which is the most restrictive designation an inmate can receive, significant restrictions were placed on his contact with others, including the fact that he was only allowed to communicate in English.

144. The offender completed an EQUIPS foundation program for which he received a certificate and also completed 19 of the 20 weeks of the Connect program.

Crimes (Foreign Incursions and Recruitment) Act

145. In R v Biber [2018] NSWSC at [88]-[97] Adamson J considered the background and purposes of the Act and also sections 6 and 7. Her Honour said at [88]-[97]:

“The Act was passed in 1978 by the Commonwealth Parliament in response to a series of resolutions of the United Nations General Assembly which called on nation States to stop foreign fighters and those who provide assistance to them. The legislation was originally concerned with preventing anti-government forces, but was amended in 1987 to criminalise foreign fighters and assistance given to them, irrespective of the group with which they intended to associate. These resolutions expressed the collective intention of nation States to reserve to themselves the right to wage war (through their own armed forces), which, since 1945, had been subject to the Charter of the United Nations and resolutions made by the Security Council in accordance with it.

Section 6 of the Act, which created the offence for which Mr Biber stands to be sentenced, made it an offence to enter a foreign State for the purpose of engaging in armed hostilities. Section 7 of the Act made it an offence to perform services for someone with the intention of that person entering a foreign State for that purpose. The purpose of ss 6 and 7 of the Act is to deter and prevent foreign fighters from engaging in armed hostilities in foreign States and to punish those who go, as well as those who assist them.

The legislative history of s 6, as referred to above, is important to an identification of legislative purpose in the context of the present case. Section 6(3)(aa) was inserted into the Act by the Crimes Legislation Amendment Act 1987 (Cth) (the 1987 Amending Act). Its effect was to include, in the definition of engaging in a hostile activity (for the purposes of offences against s 6(1)), doing an act (relevantly, entering a foreign State) with the intention of achieving the objective of engaging in armed hostilities in the foreign State.

In the Second Reading Speech (Commonwealth of Australia Parliamentary Debates, Senate (Hansard) 5 November 1987), at p.1756, Senator Tate explained the purpose of the amendments in the following terms:

‘The underlying purpose of the Crimes (Foreign Incursions and Recruitment) Act 1978 is to prevent persons from Australia becoming involved in hostile activity in overseas countries. The purpose of the amendments is to remedy a number of deficiencies in the Act. One such deficiency is that mercenary acts as such are not proscribed unless they involve acts done for specific purposes, those purposes generally relating to acts directed against the government of a foreign country. . . . In addition, two new offences have been created - prohibiting persons from Australia from engaging in armed hostilities outside Australia and prohibiting the use of a vessel or aircraft in preparations for an incursion into an overseas country. . . .’

I understand the reference to “mercenary acts as such” in the Second Reading Speech to the 1987 Amending Act to be a reference to s 6(3)(aa), which proscribes “engaging in hostilities in the foreign State”. The 1987 Amending Act also removed the reference to “foreign country” and substituted “foreign State” and redefined “government” to mean the authority exercising effective control, rather than, as previously, the government that Australia had recognised as the lawful government.

This legislative history shows, in my view, that the intention of the Act, as amended in 1987 was, not only to criminalise entry into a foreign State for the purposes of engaging in armed hostilities, but also to make irrelevant any judgment about the merits of any armed conflict in a foreign State. In other words, the amendments made by the 1987 Amending Act made clear, in my view, that the criminality of such conduct was not ameliorated if the putative foreign fighter was fighting against a regime that was regarded, for example, as inimical to Australia’s foreign interests or in breach of international law by reason of its conduct towards those living within its borders: R v Alqudsi [2016] NSWSC 1227 at [6] and [92].

Wars are typically fought by young men who, it may be assumed, believe themselves to be engaged in a “noble cause”, whichever side they are on. History shows the susceptibility of young men to the idea that they will become heroes and that their lives will matter if they go and fight in a war, whether in a nation State’s military force or a rebel group, and that accompanying other men into battle is the ultimate act of loyalty, friendship and sacrifice for which they will be forever remembered. Before the enactment of the Act, participating in a foreign war other than as part of the military forces of a nation State was not illegal under Australian law. Indeed, participation in certain historical conflicts was, at times, regarded as laudable where the foreign government sought to be overthrown was regarded as tyrannical.

The Act criminalised this conduct. It made entry into a foreign State with the intention of engaging in armed hostilities, other than as part of a recognised national military force, a criminal offence, the seriousness of which is indicated by the maximum penalty of 20 years imprisonment.

In R v Mohammed [2016] VSC 581, Lasry J said of the provisions, which included ss 6 and 7 of the Act:

‘[4] . . . [T]he clear purpose of the provisions . . . was to ensure that Australia discharged its international obligation to make criminal the activities of . . . [those] who proposed to engage in hostile activities in a foreign state and/or assist foreign fighters to do so. That purpose in itself demonstrates the seriousness of [the] conduct. Like contemporary terrorism offences, the . . . Act made criminal not only the specific act of engaging in hostile activities in a foreign state but, separately, acts which are performed in preparation with that intention.’

The difference between the maximum penalty for an offence under s 6 of the Act (20 years) and an offence under s 7 (10 years) indicates that Parliament regards offences against s 6 as, generally, more serious than offences under s 7. Parliament has, by providing for a maximum penalty of 20 years for an offence under s 6 indicated the seriousness with which it regards conduct falling within that section. The maximum penalty is to be reserved for the worst category of cases: Veen v The Queen (No. 2) (1988) 164 CLR 465 at 478. I note that an offence under s 6(1)(a) (entering a foreign State with intent to engage in a hostile activity) carries the same maximum penalty as an offence under s 6(1)(b) (actually engaging in a hostile activity).”

Matters relevant to sentencing – Part 1B of the Crimes Act 1914

146. In sentencing Mr Hatahet, the Court must sentence the offender in accordance with Part 1B of the Crimes Act1914 (Cth) (“Crimes Act”).

147. I am obliged to impose a sentence that is of a severity appropriate in all the circumstances of the offence: s 16A(1) of the Crimes Act.

148. This requires all relevant factors, including the seriousness of the offence and the offender’s subjective circumstances, as set out, to be taken into account in determining the sentence to be imposed: s 16A(2) Crimes Act.

Factual issues in dispute & the assessment of objective seriousness

149. Important factual issues in dispute at the sentencing hearing were the offender’s reasons and motivations for his incursion into Syria in 2012, and also the nature of the hostile activities that he engaged in.

150. As the sentencing judge, I may not take facts into account, other than the Agreed Facts, in a way that is adverse to the interests of the offender unless those facts have been established beyond reasonable doubt.

151. However, if there are circumstances which I take into account in favour of the offender, it is sufficient that they be proved on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ.

152. There are other matters which can be taken into account in sentencing, or which form part of the narrative, which do not fall into either category: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14; at [19]-[24].

153. The assessment of the objective seriousness of this offence involves an assessment of the actual conduct, which constituted the offender engaging in armed hostilities. It is therefore also necessary to determine the extent to which the offender engaged in hostile activities and what those activities were: R v Biber [2018] NSWCCA 271 at [25].

154. The Crown accepted that it was not in a position to gainsay the evidence from the offender, that is that he went to Syria looking for his brother-in-law, and the Crown accepted that I would find that was part of what he was doing. However, the Crown further submitted that the evidence also showed that having found himself in Syria he was clearly an enthusiastic participant and happy to support the fight against the Syrian government.

155. The Crown also submitted that it is difficult to separate the offender’s apparent political support from the religious context of his actions. The Crown submitted that I should additionally find that there was a religious motivation to the offender’s activities.

156. The offender gave evidence before me (as summarised). I am able to accept some of what he said but not all of it. Although the offender often answered questions directly, without seeking to obscure his conduct or views, he was also a difficult and argumentative witness. This does not assist him. At times I had to ask him to answer questions, not to ask his own questions or make pronouncements. The offender repeatedly stressed that he would not have gone to Syria but for his brother-in-law but then also made very clear his hatred for the Assad government and the righteousness of his participation in the fight against the Syrian regime.

157. I am satisfied that the offender went to Syria for the purpose of looking for his brother-in-law. However, once there it is clear from the videos, photos, and his own evidence that he was an enthusiastic participant and supporter of the goals of the FSA. The goals of the FSA were to overthrow the regime of Bashar al-Assad by force and replace it with a new Syrian Government.

158. In relation to any religious motivation, Mr Evers submitted that I should be cautious when considering whether there was any religious motivation on the part of the offender, as there is nothing to support a finding that any religious aspect was connected to extremism or that this brought about some invocation by the offender of violence generally. I accept this submission and I am not satisfied beyond reasonable doubt that any religious view held by the offender played a relevant part in his conduct.

159. The Crown contended in the facts that there were a number of occasions where the offender’s voice could be heard on the videos and as a consequence, I could find his role included his participation in those videos. However, Mr Williams, counsel for the Crown, in oral argument, accepted that there was no evidence to corroborate or support this contention.

160. The offender denied it was his voice and gave evidence that these videos were provided to him. He said that he was only present in those videos and photos in which he could be seen.

161. Having considered the evidence, I am not able to be satisfied that this is the offender’s voice, and his activities will be assessed by those that are agreed to or admitted by him.

The hostile activities

162. The circumstances which may give rise to a conviction for an offence under s 6 of the Act are so various that it is unhelpful, if not impossible, to generalise about the conduct covered by the section. It, like the offence of manslaughter, has a protean character and its objective gravity can vary greatly. Matters of fact and degree can arise both within s 6(1)(a) and (b) and within the objectives referred to in s 6(3): R vBiber [2018] NSWSC 535 at [104].

163. The offender’s purpose for entering Syria was to find and if possible, seek the release of his brother-in-law. In order to achieve that the offender crossed into Syria and made contact with the FSA. Once there, the offender enthusiastically, over several weeks, engaged in a number of hostile activities which included being armed with loaded rifles, carrying a recoilless antitank weapon, clearing rubble and general encouragement. On one occasion the offender also recklessly fired a weapon over a wall.

164. All of these services can be seen to have provided some assistance to the FSA in their ongoing hostile activities which formed part of the prolonged civil war in Syria. In relation to s 6(3) of the Act, I find that the offender undertook these hostile activities with the intention of achieving the overthrow by force or violence of the Syrian government (s 6(3)(a)) and engaging in armed hostile activities (s 6(3)(aa)). However, that said, I find that the offender’s conduct was limited both in terms of its duration (said to be three weeks) and by its nature, and that the offender played a fairly minor role in his participation in the hostile activities. I regard his conduct as well below the mid-range of seriousness for this offence.

Any injury, loss or damage resulting from the offence

165. The Crown has not submitted that any injury, loss or damage resulted from the offence within the meaning of s 16A(2)(e) of the Crimes Act.

General and specific deterrence: s16A(2)(j) and s16A(2)(ja) Crimes Act

166. The Crown submits that general deterrence must have significant weight for offending of this kind. Mr Evers submitted that whilst general deterrence is a significant sentencing consideration it should be moderated due to the unusual reasons for the offender’s participation in the conflict, his limited role in the conflict and the eight-year delay despite authorities being aware the offender had been in Syria. I find that general deterrence remains an important sentencing consideration. The purpose of the Act, including s 6, is to deter and punish foreign fighters. The entry into a foreign State to engage in armed hostilities is to be denounced and deterred.

167. In relation to specific deterrence, the Crown submitted that this is also an important factor but accepts that it may be of less import given the delay in the prosecution of the offender. Mr Evers submitted that although this factor is usually given significant weight, given the delay of eight years; the ongoing contact the offender had with authorities after his return; the experience he suffered on his return Syria in 2013; and the extremely onerous custodial environment he will remain in during his sentence, the Court would find that specific deterrence and protection of the community need not play a significant role in the sentence imposed. I accept Mr Evers’ submissions and I will approach these sentencing considerations in this way.

Guilty plea and contrition shown for the offending

168. The offender was arrested on 25 April 2020 and pleaded guilty in the Local Court on 26 May 2021. The Crown conceded that the plea was entered at the earliest opportunity, and he is entitled to a reduction. Mr Evers submitted that the sentence ought to be reduced by 25% to reflect the utilitarian value of the plea.

169. The utilitarian benefit of a plea of guilty is a relevant consideration for sentencing: Xiao v R [2018] NSWCCA 4 at [278] (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ). Although the percentage discount does not need to be separately expressed for the sake of transparency, I will do so. I will allow a 25% discount on the sentence to take account of the utilitarian value of the offender’s plea.

170. The plea might also be relevant to sentencing because it might reveal an intention to facilitate the course of justice or contrition. I am not satisfied that the offender’s plea demonstrates an intention to facilitate the course of justice, although it has had that effect. In relation to contrition, Mr Evers submitted that the offender did not understand that this was an offence against Australian law and that had he known, he would not have undertaken his actions. The offender gave this evidence before me. However, contrition requires not only a formal admission of guilt (by the making of a plea of guilty) but the acknowledgement of wrongdoing and a degree of repentance. Although the offender in evidence eventually said that he did regret his actions, I found his answers disingenuous, and he failed to demonstrate a sincere acknowledgment of wrongdoing. I am not satisfied that the offender’s plea is an indication of contrition or that he is remorseful for his actions.

The character, antecedents, age, means and physical and mental condition of the offender

171. The offender is currently 46 years of age. He was 36 at the time of the offence. The offender has a criminal history for fraud offences, although (as referred to above) this postdates the offending. He will need some retraining in relation to any future occupation.

172. During the offender’s return to Syria in 2013 he was detained at gunpoint, held captive for a number of days, subjected to torture and inhumane treatment before being released once his family paid a sizable ransom, which he has not been able to repay. I accept that this ordeal has had a significant impact on the offender and although it would not amount to extra-curial punishment, it is relevant to the Court’s consideration as to whether the offender will reoffend, and to the offender’s ongoing need for assistance once released. I have taken this into account when considering the length of the non-parole period that will be imposed.

Delay and prospects of rehabilitation

173. The offending occurred in 2012 and I have already referred to the delay that is present in this matter. The circumstances in which delay may be relevant to sentencing are well understood. There are three relevant factors: firstly, the suspense or uncertainty in which a person may have been left; second, whether the offender has demonstrated progress towards rehabilitation during the intervening period; finally, a sentence for a stale crime calls for a measure of understanding and flexibility of approach.

174. Mr Evers submitted that this delay should be taken into account in showing that the offender has demonstrated some progress towards rehabilitation and although the offender did commit further fraud offences, those offence can be seen as a response to the injuries he suffered in 2013 and the circumstances he found himself in. Mr Evers submitted that in terms of the offender’s prospects of rehabilitation, although not excellent, they are better than heavily guarded. Mr Evers submitted that given the offender’s experience both in terms of his return to Syria in 2013 and the extremely onerous custodial environment, the offender is unlike to reoffend in this way. I accept this assessment and I find that due to these factors the offender’s prospects of rehabilitation are fairly good and he is also unlikely to reoffend in this same way.

Hardship: s 16A(2)(p)

175. There is clear and compelling evidence that given the circumstances of the offender’s incarceration, his family have suffered greatly and will continue to suffer hardship. Such hardship does not need to be exceptional to be taken into account. I will take into account the probable effect that the sentence will have on the offender’s family and dependents.

Custodial conditions

176. The offender has been in custody since his arrest on 24 April 2020. He has been held in the HRMCC at Goulburn since 13 May 2022. These conditions are extremely onerous and significantly more so than the general prison population. I also accept and take into account that the offender has experienced additional restrictions and difficulties due to the COVID-19 virus. I will take these more onerous custodial conditions experienced by the offender into account when sentencing him, including when setting the commencement date of this sentence.

Comparable cases

177. Both the Crown and the offender provided tables of comparative sentences which I have had regard to. Limitations apply as to the use that can be made of sentences imposed in other cases for different offences. The Court must make its own independent assessment of the particular case. The Court must identify the limits of the discretion by reference to the facts of the case before it. Ultimately, the sentencing discretion is individual and must be exercised by the judge in respect of the individual offender and the particular offending. Nevertheless, viewing other comparable cases in an overall and broad way can provide some measure of the types of sentences passed in similar (although not identical) circumstances.

Pre-sentence custody and commencement date

178. The offender has been bail refused since his arrest on 25 April 2020. His custodial circumstances have been complicated by the fact that he has been given sentences of imprisonment for other matters since his arrest. The non-parole period for those offences expired on 24 January 2021. Almost the entirety of the non-parole period served for the fraud offences was spent in the HRMCC. The offender would not have served his sentence for those offences at that gaol but for the present charge. I will take this into account when fixing the commencement date for this offence.

Punishment

179. Punishment is an important purpose of sentencing. The sentence I impose must take this purpose into account.

Sentencing options    

180. A sentence of imprisonment may be imposed for this offence. There are other options, both custodial and non-custodial, including those which may be considered if a sentence of imprisonment is appropriate, as to how the sentence is to be served.

181. Mr Evers accepted that this offence would carry a sentence of imprisonment. However, I have considered all available options, including the conditions that might be imposed on an offender under a sentence or order: s 16A(2). I am satisfied that no sentence other than a sentence of full-time imprisonment is appropriate in all the circumstances of the case: s 17A of the Crimes Act.

182. The seriousness of the offence, as indicated by the maximum penalty and the need for general deterrence and punishment, requires that a sentence of imprisonment be imposed to communicate “the censure of society”: Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; [2004] HCA 46 at [163] (Kirby J).

The imposition of a non-parole period

183. I am required by s 19AB of the Crimes Act to fix a non-parole period. For Commonwealth offences, there is no statutory or judicially determined “normal” ratio between the non-parole period and the total sentence. Accordingly, my discretion to determine the total sentence, the non-parole period and the parole period is not constrained by any formula or norm. The non-parole period is to be determined by what, in all the circumstances of the case, ought to be the minimum period of actual incarceration: Power v The Queen (1974) 131 CLR 623 at 627-629; [1974] HCA 26 and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [36]-[44].

184. I note the undertaking given by Ms Hedberg to explain to the offender the purposes and consequences of fixing the non-parole period: s 16F of the Crimes Act.

Sentence

185. Fayez Hatahet:

1. You are convicted of the count on the indictment.

2. I sentence you to a term of imprisonment consisting of a non-parole period of 3 years commencing from 24 August 2020 and a head sentence of 5 years which expires on 23 August 2025.

3. You will become eligible to be released on parole on 23 August 2023. This term has been reduced by a discount of 25 per cent for the plea of guilty.

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Decision last updated: 22 July 2024