R v HG

[2018] NSWSC 1849

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v HG [2018] NSWSC 1849
Hearing dates:	30 November 2018
Date of orders:	11 December 2018
Decision date:	11 December 2018
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	(1) The offender is convicted of the offence of doing acts in preparation for, or planning, a terrorist act or acts. (2) The offender is sentenced to imprisonment for 16 years commencing on 12 October 2016 and expiring on 11 October 2032. (3) I specify a non-parole period of 12 years imprisonment commencing on 12 October 2016 and expiring on 11 October 2028. (4) The offender will be eligible for release on parole on 11 October 2028. (5) I am satisfied that there are special circumstances within the meaning of s 19(4)(c) of the Children (Criminal Proceedings) Act 1987 (NSW) and I order, pursuant to s 19(1) of that Act, that the sentence that I have imposed upon the offender be served by him as a juvenile offender up to his attaining the age of 21 years on 6 May 2021. (6) Pursuant to s 105C of the Criminal Code 1995 (Cth) I warn the offender that an application may be made for a continuing detention order requiring him to be detained after the completion of his sentence.
Catchwords:	CRIMINAL LAW – Offences – Sentence – Doing acts in preparation for a terrorist act – Offender arrested in possession of knives and camouflage clothing – Steps taken by offender in an effort to ensure that he could not be traced – Where offending motivated by an adherence to extremist ideology including a belief that the Australian Government was “evil” – Where actions of the offender were consistent with propaganda published by Islamic State – Where the commission of a terrorist act was imminent at the time of the offender’s arrest – Necessity to impose a sentence which would denounce the offending and protect the community - Necessity for general deterrence   CRIMINAL LAW – Offences – Sentence – Doing acts in preparation for a terrorist act – Where offender 16 years of age at the time of the offending – Serious offending – Adult like behaviour – Relevance of youth on sentence – Consideration of the extent of the mitigatory effect of youth in cases of serious offending
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1914 (Cth) Criminal Code 1995 (Cth)
Cases Cited:	Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 DPP v Besim [2017] VSCA 158 DPP (Cth) v Fattal [2013] VSCA 276 DPP (Cth) v MHK (A Pseudonym) [2017] VSCA 157 Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 383 HJ v R [2014] NSWCCA 21 JM v R (2012) 223 A Crim R 55; [2012] NSWCCA 83 KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 Lodhi v R (2007) 179 A Crim R 470 R v Barot [2007] EWCA Crim 1119 R v Elomar and ors. [2010] NSWSC 10; (2010) 264 ALR 759 R v Issacs (1997) 41 NSWLR 374 R v Kahar [2016] 1 WLR 3156; [2016] EWCA Crim 568 R v Khalid and ors [2017] NSWSC 1365 R v Khazaal [2009] NSWSC 1015 R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691 R v Martin (1990) 1 Cr App 477 R v Olbrich (1999) 199 CLR 270; [1990] HCA 54 R v Sharrouf [2009] NSWSC 1002 R v Touma [2008] NSWSC 1475 R v Tran (2002) 94 VR 248; [2002] VSCA 52
Category:	Sentence
Parties:	Regina – Crown HG – Offender
Representation:	Counsel: I Bourke SC and R Ranken – Crown B Walmsley QC – Offender   Solicitors: Director of Public Prosecutions (Cth) – Crown Birchgrove Legal – Offender
File Number(s):	2016/305114
Publication restriction:	Nil

Judgment

1. On 24 July 2018 HG, a young person to whom I shall refer as the offender, pleaded not guilty to a charge that between about 6 October 2016 and 12 October 2016, at Sydney in the State of NSW, he did acts in preparation for, or planning, a terrorist act or acts[1] . On 3 September 2018, following a trial, the offender was found guilty by a jury of that offence, which carries a maximum penalty of life imprisonment. The jury could not reach a verdict in respect of an alleged co-offender with whom the offender stood trial.

   1. Criminal Code 1995 (Cth) s 101.6(1).

THE EVIDENCE ON SENTENCE

2. The Crown tendered a folder of material [2] which included:

   2. Exh A on sentence.

1. the offender’s criminal history;

2. an affidavit of Stephanie Scott-Smith sworn 15 November 2018;

3. an affidavit of Dr Anne Marie Martin sworn 16 November 2018; and

4. an affidavit of Michael Vita sworn on 16 November 2018.

3. Senior counsel for the offender tendered a folder of material [3] which included:

   3. Exh 1 on sentence.

1. a report of Kuranda Seyit, the Program Manager of the Forum on Australia’s Islamic Relations, dated 31 October 2018;

2. a report of Dr Olav Nielssen, Psychiatrist, dated 11 December 2017;

3. a further report of Dr Nielssen dated 24 October 2018;

4. an affidavit of the offender’s father dated 1 March 2018; and

5. two certificates of completion of courses of study undertaken by the offender in custody.

4. In addition, the offender gave oral evidence on sentence and was extensively cross-examined by the Crown. Generally speaking, the offender made it clear that he does not accept the jury’s verdict. He proclaimed his innocence [4] and denied that he was engaged in preparing for, or planning, any terrorist act [5] . He sought to advance innocent explanations for various circumstances and events upon which the Crown had relied at the trial. He stated, in particular, that he was in possession of knives with the intention of using them for “purely recreational activities, outdoor recreation, going hunting, going camping etc” [6] . Such explanations had been put to the jury on the offender’s behalf by senior counsel who appeared at his trial. Given the verdict, the jury clearly rejected them. I have discussed these matters in more detail later in this judgment.

   4. T15.30.

   5. T11.19 – T11.27.

   6. T11.22 – T11.23.

PRINCIPLES APPLICABLE TO SENTENCING FOR TERRORISM OFFENCES

5. At the outset, it is necessary to bear in mind that the statutory provisions creating these types of offences are directed to preparatory acts. The seriousness with which the Parliament views those acts is clear from the prescribed maximum penalty of life imprisonment. The extended range of conduct which is subject to criminal sanction as a consequence of these provisions obviously goes well beyond that which had previously been regarded as criminal. However, by enacting the legislation, and by prescribing a maximum penalty of life imprisonment, the Parliament has given a clear indication that the threat of terrorist activity requires the imposition of severe punishment[7] .

   7. Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360 (“Lodhi appeal”) at [79] per Spigelman CJ.

6. In R v Khalid and ors. [8] I summarised the principles relating to the sentencing of terrorism offenders as follows[9] :

[23] The primary considerations on sentence in matters of this nature are the protection of the community, the punishment of the offender, the denunciation of the offending, and deterrence, both general and specific[10] . Subjective circumstances and mitigating factors, including considerations of rehabilitation, are to be given less weight[11] .

[24] The religious and/or ideological motivation of an offender is relevant to the issue of community protection, as well as to the assessment of the objective seriousness of the offending[12] . Consequently, where it is not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance[13] . As previously noted, weight must be given to the need for general deterrence. This remains so, even if the force of ideological or religious motivations and considerations are such that deterrence may not be effective[14] .

[25] Matters relevant to assessing the objective seriousness of offending of this nature will include:

(i) 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;

(ii) the period of time involved, including the duration of the involvement of the particular offender;

(iii) the depth and extent of the radicalisation of the offender as demonstrated (inter alia) by the possession of extremist material and/or the communication of such views to others; and

(iv) 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 indoctrination, be it actual or intended[15] .

8. [2017] NSWSC 1365.

9. Commencing at [23].

10. R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691 at [92] (“Lodhi sentence”); Lodhi appeal at [274]; R v Khazaal [2009] NSWSC 1015 at [47].

11. Lodhi sentence at [89]; Lodhi appeal at [274]; Khazaal at [41]; DPP v Besim [2017] VSCA 158 at [112] – [113].

12. R v Kahar [2016] 1 WLR 3156; [2016] EWCA Crim 568 at [19].

13. Lodhi sentence at [82]–[83]; [88]; R v Elomar & ors [2010] NSWSC 10; (2010) 264 ALR 759 (Elomar sentence) at [93]; Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 at [591].

14. Lodhi appeal at [87]–[88]; DPP (Cth) v Fattal [2013] VSCA 276 at [169]; Lodhi sentence at [91] – [92]; R v Barot [2007] EWCA Crim 1119 at [45].

15. R v Kahar [2016] 1 WLR 3156; [2016] EWCA Crim 568 at [19]; Elomar sentence at [62]; Benbrika at [564].

7. Consistent with these general principles, there have been repeated statements that substantial sentences are warranted for offending of this nature. The rationale for that approach is based not only upon the considerations to which I have already referred, but also upon the fact that the offending is hard to detect, and is often committed by members of the community who are persons of prior good character and who have favourable backgrounds [16] .

   16. Lodhi sentence at [91]-[92].

8. In R v Barot [17] the Court of Appeal of the United Kingdom put the matter in this way:

Terrorists who set out to murder innocent citizens are motivated by perverted ideology. Many are unlikely to be deterred by the length of the sentence that they risk, however long this may be. Indeed, some are prepared to kill themselves in order to more readily kill others. It is, however, important that those who might be tempted to accept the role of camp followers of the more fanatic are aware that, if they yield to that temptation, they place themselves at risk of very severe punishment. Punishment is the other important element of the determination of the sentence for offences such as this.

THE CIRCUMSTANCES OF THE OFFENDING

17. [2007] EWCA Crim 1119 at [45].

Finding the facts of the offending for the purposes of sentence

9. For the purposes of determining an appropriate sentence, I am required to make findings of fact in relation to the circumstances of the offending[18] . Any findings I make must be consistent with the jury’s verdict. I must accept such facts as are established by that verdict, and I must not determine any factual issue in a way which is inconsistent with it[19] . The Crown bears the onus of satisfying me, beyond reasonable doubt, of any finding of fact against the offender. The offender bears the onus of proving factual matters in mitigation on the balance of probabilities[20] .

   18. Section 16A(2)(a) of the Crimes Act 1914 (Cth.) requires the Court to have regard to the nature and circumstances of the offending.

   19. R v Issacs (1997) 41 NSWLR 374.

   20. R v Olbrich (1999) 199 CLR 270; [1990] HCA 54.

The offender’s ideology

10. As long ago as October 2012 the offender advocated extremist and radical religious views. At that time, when just 12 years of age, he was photographed at a protest in Hyde Park in the Sydney CBD holding a sign bearing the words:

BEHEAD ALL THOSE WHO INSULT THE PROPHET [21]

21. Exh. AB.

11. There was also evidence in the trial that in 2014 the offender refused to stand for the National Anthem at a school assembly, telling the Principal at the time that he “did not stand for anybody except Allah”.

12. The affidavit sworn by the offender’s father made reference to the fact that for a period of time prior to the offending, the offender had appeared to moderate his views. Having referred to his separation from the offender’s mother, the offender’s father stated [22] :

[9] His mother later kicked him out of the house when he was about 14/15 years old because she said she couldn’t control him anymore. (HG) was finally sticking up for himself, and when he did, he found himself kicked out in the middle of the night.

[10] (HG) came knocking on my door at midnight asking to stay with me because he had just been kicked out of his Mum’s house. I of course let him in and he ended up staying with me for about 6 months. My partner, who I lived with at the time, along with her two daughters, and (HG) didn’t get along very well at the start. To relieve some family tension, I asked (HG) to stay at my Villawood apartment by himself. I felt that he needed some space, given the abuse he faced at home with his mother. (HG) didn’t need any additional stress from me or my partner. At this time (HG) was about 16 years old and he lived in my Villawood apartment for about 6 months.

[11] When (HG) came to live with me and my partner and before he moved out, I saw a significant change in his behaviour. He was no longer super religious, and I noticed a positive change in his demeanour and the way he approached people and life in general. (HG) was your average Muslim 16 year old boy: he slit his eyebrows thinking it was “cool”; he wore ordinary clothes; he started chatting with girls; he started playing sport; would stay up all night playing Play Station and did things a normal 16 year old would do. His interests in Jihad and war had changed.

[12] I genuinely believed him distancing himself from his mother, her partner and their extended families were the reasons behind his positive change in behaviour. It was instant.

22. Commencing at para 9.

13. There was evidence before the jury that for a period of time in early to mid-2016 the offender had appeared to express more moderate views [23] . However, on 17 June 2016 the offender posted the following message on his Facebook account [24] :

Salamul alaikum brothers and sisters i want to make it clear about myself, because people are wondering what happened to me, why I have changed, why do I look like a kaffir, why did I cut my eyebrow, why am I doing haram and exposing it to everyone that’s including shaking hands with non-mahram women, listening to music, hanging out with jahils, munafiqeen and murtadeen, well I want to make it clear to everyone that I fell in the fitnah of ‘going on the low’ that’s a big fitnah that has affected a lot of young muslims in our day and age including me, BROTHERS AND SISTERS IT IS HARAM, wallahi its a fitna that nearly led me to zina, and to snitching brothers in, but alhamdulilah, I didn’t cross that line and allah s.w.t protected me from his path and I openly make baraa from all of these things that I done and I ask my brothers and sisters to forgive me for anything I did to them.

23. See evidence at trial of Awirali Amin commencing at T848.

24. Exh. BG at p.28.

14. It is relevant to note that:

1. “haram” means something which is not permitted;

2. “fitnah” means discord, conflict or disunity within the Muslim community [25] .

   25. Exh. BQ.

15. I accept the Crown’s submission that this post was, in effect, an apology by the offender for departing from his previous extremist stance. Whatever moderated stance he may have then taken, this post marked his return to extremism. Significantly, this was only a matter of months prior to his offending.

16. In the course of his evidence the offender maintained that he was “pressured” to resume his support of extremist ideology [26] :

    26. Commencing at T77.30; see also T43.45-T43.46.

Q. But you claim that you stopped holding extreme views in the first part of 2016 for

A. I was I was

Q. I haven't finished the question; you claim, don't you, that in the early part of 2016 you did not hold extreme views also, don't you?

A. That's right, yes.

Q. But then you switched back to the extreme views?

A. I was pressured yes. I was surrounded I started surrounding myself with extreme people and I got back into the extremes, not as much as 2015 but I was getting back into it.

HIS HONOUR

Q. Pressured by whom Mr (HG)?

A. Religious people that I knew since I was a kid and people like family, like

Q. But who?

A. Mother's side when she kicked me out of the house.

Q. What form did this pressure take?

A. It was more like an isolation form, like no one associated with me, all my friends and family that left me at that time. They stopped associating with me and I felt like I was getting depressed and stuff. That's why I started hanging out with people doing drugs and stuff, lucky I didn't do any drugs but I was heading down that path.

17. The offender also said that his step-father had at one point “stopped associating” with him, and had “told him off”, for expressing disagreement with the views of Islamic State [27] .

    27. At T83.15-T83.45.

18. On the whole, the offender’s evidence in this regard was somewhat nebulous. Although it was not put in strict terms, it appeared to be suggested that his return to extremist ideology was the result of some form of non-exculpatory duress which manifested itself in pressure from his family, as well as others. I am satisfied that the offender’s return to extremist ideology in or about mid-2016 was the product of his own conscious volition, and was unencumbered by any pressure or influence from others.

19. On the day of the offender’s arrest, police searched his home and seized a number of items including a mobile telephone and a laptop computer. Forensic analysis of those items identified the presence of a large amount of what might be generally described as radical and extremist material, including images, videos and messages (“the extremist material”). That analysis also identified a number of internet searches conducted by the offender, the terms of some of which were consistent with the offender having extreme views.

20. Documentary summaries of the extremist material were tendered by the Crown, without objection, in the offender’s trial [28] . No issue was taken at that time that it was, in fact, the offender who was responsible for operating the various email and internet accounts [29] . However, in the course of being cross-examined by the Crown in the sentence proceedings the offender asserted, for the first time, that others who had used him as a “minion” were responsible for posting some of the items which were found on his devices [30] , and operating one or other of his email accounts [31] . He even went so far as to assert that “his legal team forgot to tender” material which was said to make good those assertions [32] . When asked who these other people were, the offender said that he “didn’t know exactly” [33] .

    28. Exhs. X, AJ, AK, BD, BE, BF, BG, BH and BJ.

    29. Exh. X at pp. 1-3. In the sentence proceedings senior counsel for the offender expressly accepted that this was the case at T85.43.

    30. See for example T16.41 – T16.48; T42.30-T42.35.

    31. See for example T45.41-T45.44.

    32. T16.43–T16.44

    33. T42.33-T42.35.

21. Given the position taken on behalf of the offender at the trial (which I infer was in accordance with his instructions), and given the inherently vague nature of what the offender said in evidence, I do not accept his assertion that others were responsible for posting material on his accounts, or for any related activity. I am satisfied that the offender’s evidence in this respect amounted to nothing more than a series of answers of convenience which were given by him in an attempt to minimise his culpability.

22. Also tendered before the jury were three other documents relating, generally speaking, to the offender’s internet use. The first, which was tendered by the Crown, was headed “Defence Internet History” [34] . It recorded searches undertaken by the offender for material of a generally non-extremist nature, using key words such as “first aid kit”, “best all round hunting rifle” and “10 tips to avoid bee stings”. The second and third documents [35] were tendered in the offender’s case and set out other internet searches he had undertaken using key words such as “Australian bush danger” and “wasp what to do”. On the basis of this (and other) evidence, senior counsel for the offender put to the jury an alternative hypothesis to that advanced by the Crown, namely that the offender’s conduct (to which I will come in more detail) was associated with a completely innocent purpose, namely an interest in hunting and camping. Clearly, the jury rejected that hypothesis. However, as I have discussed in more detail later in this judgment, the offender again sought to advance that alternative hypothesis in his evidence before me. For reasons to which I will come, and leaving aside that it is generally inconsistent with the jury’s verdict, I do not accept his evidence in that regard.

    34. Exh. AE.

    35. Exhs. HG1 and HG2.

17. I do not propose to set out the extremist material in its entirety. At this stage, a brief reference to some aspects of it is all that is necessary to gauge its general tenor.

18. On 13 September 2016 the offender searched the phrase “whoever attacks you then attack them” [36] . He then posted an article entitled “a Muslim woman was just set on fire in the middle of NYC” which was accompanied by the words [37] :

So whoever has assaulted you, then assault him in the same way that he has assaulted you. And fear Allah and know that Allah is with those who fear Him.

36. Exh. X at p.20.

37. Exh. X at p.20.

25. On 8 October 2016 the offender searched the phrase “whoever attacks you then attack them ibn cathir [38] . He also accessed an image bearing the words [39] :

Death is only once, so let it be in the path of Allah.

38. Exh. X at p.44.

39. Exh. X at p.45.

26. On 9 October 2016 the offender posted footage to his Facebook page entitled “scared American. MP4” accompanied by the message [40] :

# NEWVIDEO #MUSTWATCH…. I will cast terror into the hearts of those who disbelieved.

40. Exh. X at p.54.

27. Such material, and indeed the extremist material generally, is obviously consistent with the offender having an extremist and radical ideology which advocated violence. When giving evidence before me the offender was asked about the extent of that ideology at the time of his offending. Although he drew a distinction between being, on the one hand, sympathetic to the views of organisations such as Islamic State, and on the other hand, being supportive of such views [41] , he agreed that at the time of his offending he had extreme views as a Muslim [42] , that he was an extreme young man who had radical views in general [43] , and that he held extreme Salafist views [44] .

    41. See for example T15.43-T15.44.

    42. T9.19.

    43. T9.24-T9.25.

    44. T11.29-T11.30; T16.22-T16.24.

28. However, despite admitting that he held such views, the offender asserted that he did not believe in violence [45] . I do not accept that to be the case. It is completely contrary to the nature of the extremist material, and the beliefs that the offender said that he held. It is also contrary to the terms of notes written by the offender [46] which were found in his cell following his arrest [47] , the text of one of which was as follows [48] :

    45. T17.45-T18.14.

    46. T84.10-T84.11.

    47. Exh. AY; T83.49-T84.34.

    48. Exh. AY Image 18/11/2016 15:30-3

In the name of God, the merciful, the gracious

There is no ruling except the ruling of God

There is no sharia (Islamic law) except the sharia (Islamic law) of the merciful the gracious

Destruction destruction on the worshippers of the cross and idols

And the worshippers of rulers, scholars of evil and money

Peace peace upon the followers of the prophet and his righteous companions

Abu Baker, Omar, Ali, Osman, Moowiya Ibin Abi Sufyan, and peace be upon the followers of guidance

As to what follows,

29. When asked what he meant by those words the offender said [49] :

At that time I had hatred … because of my extremism ….

49. T84.16-T84.22.

30. When asked whether the reference to “worshippers of the Cross and idols” was a reference to Christians, the offender replied [50] :

Yes and …. high hatred to other cultures and beliefs that wasn't like mine.

50. T84.26-T84.29.

31. The evidence overwhelmingly supports the conclusion that at the time of his offending, the offender held radical and extreme views which advocated the perpetration of violence on those who did not hold such views. The extremist material, along with the other evidence to which I have referred is not, as the offender would apparently have it, a reflection of his interest in world affairs. That general proposition was advanced on his behalf at his trial. The verdict of the jury is wholly consistent with its rejection.

The events of 6 October 2016

32. On 6 October 2016 the offender attended the Bankstown Gun Shop with the co-offender and purchased two fixed-blade knives. At the time, he told the shop attendant that he wanted the knives to go pig hunting, and that he thus required “pig hunting knives”.

33. The offender took issue with the proposition that his reference to “pig” in this context was a reference to police [51] . He maintained that it was a reference to hunting animals such as pigs and deer. He said that he had been “told by his aunty’s husband” that the knives that he had purchased were “good for killing an animal”, and that he had purchased the knives for “general hunting” and “outdoor recreation” [52] . I do not accept any of that to be the case. Any suggestion that the offender was not referring to police when he made a reference to “pig hunting” when purchasing knives on 6 October is entirely at odds with the fact that at the time of his arrest he repeatedly called the police “pigs” [53] . It is equally at odds with the fact that on 8 October 2016, only a matter of days before his arrest, the offender accessed an image of a pig standing beside a police car and looking into the window. The caption in the photo was:

“Mum”? [54]

51. Commencing at T61.38; see also T36.37-T36.39.

52. T62.29-T63.1.

53. At [39]-[40] below.

54. Exh. X p. 44.

The events of 11 October 2016

34. On the afternoon of 11 October 2016, in the company of the co-offender, the offender used his mobile telephone to search the internet and at about 4:16pm he obtained a screen shot of the opening hours of the Bankstown Gun Shop [55] .

    55. Exh. X p. 63.

The events of 12 October 2016

35. At about 9:56am on 12 October 2016 the offender left his home in the company of the co-offender. They went to the Max Parker Leisure and Aquatic Centre in Revesby. Each was carrying a backpack. They entered the centre and walked to the vicinity of the grandstand. The offender then attended at the kiosk and purchased some food before returning to where the co-offender was waiting. They then went and sat behind a grandstand where they remained for a period of about 11 minutes [56] .

    56. Exh. C.

36. The offender and the co-offender then left the Centre and returned to the offender’s home at about 10:33am. A few minutes later, again in possession of backpacks, they left the offender’s home and caught a bus to Bankstown. When the offender departed his premises he left his mobile phone behind. He was, however, in possession of a “Casio G-Shock” watch which was recovered at the time of his arrest. On 3 October 2016, he had conducted a search on the internet using the key words “can ur gshock be tracked” [57] .

    57. Exh. AK p. 3.

37. On arrival at Bankstown, the offender and the co-offender went to the Bankstown Gun Shop. The offender entered the shop and the co-offender waited outside. The offender purchased two “M-9 Bayonet” knives, each of which had a fixed blade with a partially serrated edge. He also purchased a knife sharpener. He paid $230.00 in cash for the three items, following which he left the shop. He met the co-offender outside before entering a newsagency next door where he asked the attendant for a bag in which to place the knives. The attendant advised the offender that she did not have one. The offender then left the shop and returned to where the co-offender was waiting for him. The two of them then rearranged the contents of the co-offender’s backpack, discarding a number of items in a nearby rubbish bin to make room for the knives which were then secreted inside the backpack.

38. The offender and the co-offender then went to a Musallah (an Islamic prayer hall) located at Adnum Lane, Bankstown. Between about 10:30am and 11:00am they were together inside a bathroom at the Musallah, with the door locked. One of the residents knocked on the bathroom door and asked them to come out. They then exited the bathroom, the offender telling the resident that he had been showing the co-offender how to wash in preparation for prayers.

39. A short time later, police attended the Musallah. The co-offender was located sitting on the floor inside. The offender walked out from behind a kitchen area and was asked by the police to come outside. The offender complied and walked onto the balcony of the premises where he was searched, handcuffed and arrested. When arrested, the offender, in a stark expression of his ideology, shouted at police:

You’re all pigs…look at you, like lambs to the slaughter…you will all die in the hell fire at the hands of Allah…you will be slaughtered at the hands of Allah.

40. When told by the police to sit down, the offender responded:

No, I obey only Allah…I won’t obey you. You’ll have to make me.

Items recovered at the time of the offender’s arrest

41. At the time of the offender’s arrest police seized the backpacks. In the backpack which had been carried by the co-offender, police found the two knives which had been purchased earlier that day, a receipt from the Bankstown Gun Shop, and two sets of clothing, one black and one white. Police also found a note written partly in Arabic and partly in English [58] . The English translation of the Arabic script [59] was in the following terms:

I advise you of piety towards God and walking in the path of God’s messenger and to pledge allegiance to the Caliph because he who dies without allegiance will die pre Islamic death.

58. Exh. AD.

59. Exh. AX.

42. The (incomplete) English script was as follows:

And I advice my brothers in the

43. The offender said in evidence before me that he did not write any part of the note [60] although he admitted being responsible for placing it in the co-offender’s backpack [61] . Forensic examination established that the scientific properties of the paper on which the note was written were consistent with those of a quantity of paper seized during a search of the offender’s home on the day of his arrest. The offender admitted that the paper on which the note was written had come from his home [62] . It was put to him in cross-examination that the note contained a “bayah”, or pledge of allegiance. He denied that this was the case [63] . I do not accept that denial, for the simple reason that it is fundamentally inconsistent with that part of the note which made express reference to the necessity “to pledge allegiance to the Caliph”, the Caliph being the successor to the Prophet Mohammed who rules over the Khalifah [64] .

    60. T68.40.

    61. T69.10-T69.11.

    62. T69.1-T69.6.

    63. T68.22-T68.24.

    64. Exh. BQ.

44. In the backpack which had been carried by the offender police found several items of dark clothing, a camouflage-patterned cap (the sides of which extended below the ears and which the offender was seen wearing when he entered the Bankstown Gun Shop earlier in the day) and two sets of what were described in evidence as neck gaiters. The offender accepted that the neck gaiters could be used to disguise a person’s face [65] . However, he maintained that he had put the neck gaiters in his backpack when he had purchased them, and that he had simply forgotten that they were there [66] . Bearing in mind the entirety of the evidence, I do not accept that explanation. The fact that the neck gaiters were in the backpack was not inadvertent.

    65. T67.10-T67.16.

    66. T70.28-T71.10.

45. Police also located a “Casio G-Shock” watch in the bathroom at the Musallah where the offender had been a short time before his arrest. As I have already noted [67] the offender had previously conducted a search, the obvious purpose of which was to determine whether a person could be located through the operation of such a device. I am satisfied that it was the offender who left the watch in the bathroom and that he did so deliberately, in an effort to ensure that he could not be located when he left the Musallah.

    67. At [36] above.

46. I have already made reference, in the context of addressing the issue of the offender’s ideology, to a small sample of the extremist material [68] . Some further parts of that material are significant in assessing the events of 12 October. They concern a magazine called “Rumiyah” which is a publication of Islamic State [69] . Issue 1 of Rumiyah [70] was downloaded by the offender to his mobile phone on 8 September 2016 [71] . In an article entitled “Among the believers are men: Abu Mansur al-Muhajir”, the following was stated [72] :

Therefore, O lions of the Ummah, and those living in Australia in particular, follow the path of these righteous souls for there is no other path. The Khilafah has called for you to mobilize from your dens to alleviate the pain afflicting the hearts of the Muslims by striking the kuffar in their homelands. It is only from the hikmah of Allah that he has scattered you around the earth and in the various lands of the Crusaders to see which of you are best in deeds. So here before you are the doors of jihad – unhinged, and in their lands! Light the ground beneath them aflame and scorch them with terror. Kill them on the streets of Brunswick, Broadmeadows, Bankstown, and Bondi. Kill them at the MCG, the SCG, the Opera House and even in their backyards. Stab them, shoot them, poison them and run them down with your vehicles. Kill them wherever you find them until the hollowness of their arrogance is filled with terror and they find themselves on their knees with their backs broken under the weight of regret for having waged a war against the believers, and by Allah’s will, and then through your sacrifices, this Ummah will be victorious (my emphasis).

68. At [24]-[26] above.

69. T18.50-T19.2.

70. Exh. AA.

71. T19.12-T19.16; Exh X at p 14.

72. At p.17. The word “Ummah” means the Global Muslim Community (Exh. BQ).

47. A little more than a month after he had downloaded this publication, the offender was arrested, effectively on the streets of Bankstown, in possession of knives and various other accoutrements which were consistent with an imminent act of terrorism. In those circumstances, the exhortation to “kill them on the streets of ….. Bankstown” which appeared in the article is of obvious significance.

48. When cross-examined about the article [73] , the offender repeatedly sought to downplay that significance. He said, amongst other things, that the article would not have been “very interesting” but would have been “a bit interesting” [74] to him. He attributed that interest to nothing more than the fact that he was born and raised in Australia [75] and grew up in Bankstown [76] . At one point in his evidence, the offender asserted that he could not remember if he had read the article at all but thought that he had not [77] . He then contradicted himself, saying that he “probably did, probably didn’t” [78] . The offender’s evidence in these respects was completely lacking in credibility. I am satisfied that he did read the article, and that he was inspired and motivated by it to act as he did a little over one month later. The contents of the article were wholly consistent with the extreme views he held at the time, to say nothing of being consistent with his conduct on 12 October 2016.

    73. Commencing at T19.41.

    74. T20.46.

    75. T20.40-T20.43.

    76. T21.33-T21.34.

    77. T19.33

    78. T21.28.

49. The offender was then taken to another article in the magazine entitled “The Kaffir’s Blood is halal for you so shed it” [79] . That article, which was accompanied by a photograph of a man selling flowers, included the following [80] :

Muslims currently living in Dar-al-Kufr must be reminded that the blood of the disbelievers is halal, and killing them is a form of worship to Allah, the Lord, King, and God of mankind. This includes the businessman riding to work in a taxicab, the young adults (post-pubescent “children”) engaged in sports activities in the park, and the old man waiting in line to buy a sandwich. Indeed, even the blood of the kafir street vendor selling flowers to those passing by is halal to shed – and striking terror into the hearts of all disbelievers is a Muslim’s duty. There is no shar’i requirement to target soldiers and policemen nor judges and politicians, but all are kuffar who are not under the covenant of dhimmah are fair game. How can the disbelievers ever dream of safety and security while Muslims suffer anywhere in the world and while the rule of Allah is mockingly replaced by manmade monstrosities of democracy? (my emphasis).

79. Exh. AA commencing at p. 34.

80. At p. 36.

50. When cross-examined about this article [81] the offender denied that its contents reflected his views at the time [82] . He asserted that he was sympathetic to, but not supportive of, the views which were expressed in it [83] . I do not accept that the offender was merely sympathetic to such views, particularly in light of his own evidence that held extreme views at this time[84] .

    81. Commencing at T21.47.

    82. T22.3-T22.4.

    83. T22.11.

    84. See [27]-[31] above.

51. Issue 2 of Rumiyah [85] was published on 4 October 2016 [86] . It was downloaded by the offender, and later deleted [87] . The offender said [88] that he became aware of it by searching a website called “Jihadology” which posted information as to the availability of material published by terrorist organisations [89] . He agreed that this issue of Rumiyah expressed extreme views, and said that he was “extreme himself” [90] . The cover of this issue depicted a heavily bloodstained knife. Its contents included an article entitled “Just Terror Tactics” [91] , the introduction to which included the following:

One need not be a military expert or a martial arts master, or even own a gun or rifle in order to carry out a massacre or to kill and injure several disbelievers and terrorize an entire nation. A hardened resolve, some basic planning and reliance on Allah for success are enough for a single mujahid to bring untold misery to the enemies of Allah, in shaallah (my emphasis).

85. Exh. Y.

86. T24.29-T24.31.

87. T25.1-T25.26.

88. T27.15-T27.18.

89. T27.25-T27.28.

90. T26.21-T26.30.

91. Commencing at p. 12.

52. Under the sub-heading “Knife Attacks” [92] , the article then stated:

    92. Commencing at p. 12.

One might ask why knives are a good option for an attack. Knives though certainly not the only weapon for inflicting harm upon the Kuffar, are widely available in every land and thus readily accessible. They are extremely easy to conceal and highly lethal, especially in the hands of someone who knows how to use them effectively. Also, due to their accessibility, were a person to conduct a campaign of knife attacks, he could dispose of his weapon after each use, finding no difficulty in acquiring another one.

When choosing a knife, one should focus firstly on sharpness. He should then consider the strength of the blade and handle, and seek something reasonably sized for the job at hand. Also, it should not be too large, making it difficult to conceal, nor lacking a strong grip lest it be easily disarmed. Serrated or partially-serrated blades make for good combat knives.

…

The most reliable knives are fixed blade knives, where the handle and blade are crafted from a single piece of metal. This is characteristically the strongest kind of knife, since the blade extends into the handle without any moving parts.

As for choosing a target, then this is just like hunting prey. When carrying out a knife operation, it is not advised to target very large gatherings or overly crowded areas, as this presents a disadvantage and only increases the likelihood of being prevented from achieving kills. Therefore, it is advised that when conducting an operation by oneself, the target should be a smaller crowd, particularly for one strong in build or skilful in using a knife, as such attacks are proven to inflict terror. Alternatively, for one pursuing a prolonged campaign of terror, he may target lone victim.

…

Regarding where on the body the victim should be struck, then the objective here is to kill – so the strikes should be aimed at major organs, i.e. the heart, lungs or main arteries, which run from head to toe along the inner parts of the body. These include the inner thigh, the groin area, and under the armpits, then extending up the neck. The windpipe can be cut easily by slicing the throat which is in direct implementation of Allah’s command ….. Simply cutting the throat, just as one would slaughter a sheep, is sufficient.

…

Lest the operation be mistaken for one of the many random acts of violence that plague the West, it is essential to leave some kind of evidence or insignia identifying the motive and allegiance to the Khalifah, even if it is something as simple as a note pinned or attached to the victim’s body or a final testament if the operation will be of a nature where the expected outcome is one’s shahadah (my emphasis in each case).

53. In the context of the offending, this article is significant for a number of reasons.

54. Firstly, the evidence establishes that the issue of Rumiyah in which this article appeared was published on 4 October 2016. Although the date on which it was downloaded by the offender is not entirely clear, it must have been between 4 October 2016 and 12 October 2016, and thus close in time to his arrest.

55. Secondly, and fundamentally, the article urges the perpetration of extreme violence on “disbelievers”. It expressly urges followers to attack the “enemies of Allah” with knives, recommending it as a “simple” form of violence. Such exhortations are completely consistent with both the offender’s extreme views, and his conduct.

56. Thirdly, the offender sourced this publication through another website. He did so deliberately, knowing that such website made material of this nature available.

57. Fourthly, the article recommended “fixed blade” knives as the most useful for carrying out an attack. On 6 October 2016, two days after the publication of this article, the offender attended the Bankstown Gun Shop and purchased two fixed blade knives [93] . Six days later, he purchased two more.

    93. T31.35.

58. Fifthly, the article advised that particular attention be paid to the sharpness of any knife to be used in an attack. All four knives purchased by the offender were obviously sharp because they were new. Moreover, on 12 October the offender purchased a knife sharpener. He admitted in his evidence that he did this so that when a knife became blunt he could sharpen it” [94] .

    94. T30.36.

59. Sixthly, the article recommended that any knife to be used in an attack be of a size which would lend itself to easy concealment. Concealing the knives in a backpack prior to going to the Musallah was precisely what the offender did.

60. Seventhly, knives with serrated or partially serrated blades were recommended as being the most appropriate for use as an attack weapon. The blades of the two knives purchased by the offender on 12 October and which were found in his possession at the time of his arrest, were partially serrated.

61. Eighthly, the article identified, as an advantage in using knives, their immediate availability and ease of acquisition. The offender acquired four knives within the space of six days.

62. Finally, the article advocated that following an attack, a note should be pinned to a victim’s body pledging allegiance to the Khalifah. I have already referred to the fact [95] that one of the items found at the time of the offender’s arrest was a note which included a written pledge of “allegiance to the Caliph”, and which the offender had admitted placing in the co-offender’s backpack.

    95. At [41]-[43] above.

63. The offender sought to pass off the obvious and unequivocal correlation between the contents of the article and his conduct as nothing more than a coincidence [96] . He expressly denied that he had engaged in doing acts in preparation for a terrorist act, and maintained that the entirety of his actions were motivated by an interest in hunting and camping[97] .

    96. T29.25

    97. See references at [4] above.

64. The offender was then asked [98] :

    98. Commencing at T32.30.

Q. Where were you going to go camping?

A. I had the few options, I wasn't like 100% on a location yet, but, I spoke to my aunty's husband, he does a lot of hunting and I asked him if I could go with him and he said, not at the moment, he didn't want to go hunting at the moment. But, generally I was searching on the internet, places in Melbourne, because a friend of mine actually told me about, he goes hunting in Melbourne, one of my friends and there was, there's a few, like even that friend of mind was actually telling me about going with him, because he goes with hippies and they go hunting in Melbourne, so that's why I searched up about Melbourne places. Yeah and I think that's probably the only place, I wasn't like, yet, like organise it at the place yet, I wasn't like 100% on the place yet, I was just searching down there and it wasn't only for hunting, I was searching places at Parramatta national park, I don't know, I can't remember exactly, but, yeah there were places to go there, to bushwalking. I've been bushwalking heaps of times in my life as a kid especially, I used to love it. I'd been camping, so, yeah, I wanted to make my own trip and I was just searching around in places.

Q. Apart from a couple of inquiries by internet search, about Hunting Grounds Melbourne?

A. Yeah.

Q. Just before you were arrested, the rest of your search history seems to be largely about martyrdom and killing people wasn't it?

A. Or, it's around that topic, it's not only martyrdom and killing people, it's just generally the conflict overseas and obviously with ISIS propaganda and stuff. And other propagandas. Those were mainly ISIS at that time.

…

Q. Yes. So why were you accessing that sort of material the day before you were arrested?

A. Again, it's Instagram, I've probably just gone through Instagram and Instagram when you go through it, it automatically plays and you don't have to press it, so, it could have just played or I would have probably just read the subtitles in, when next picture.

Q. Why then don't we have video files about camping grounds for example?

A. There is searches and stuff.

Q. But there's a couple of searches but when we go through the videos, it's not about camping, it's about killing, isn't it?

A. Well because most of my interest wasn't about camping, most of my interest was about conflict overseas.

Q. Precisely?

A. Camping was a side thing that I was doing.

65. Having maintained that the knives that he had purchased were for camping or hunting [99] , the offender was asked [100] :

Q. In the electronic evidence that we had that was put in in the trial we don't have any searches for you looking for camping knives do we?

A. No there isn't because when I went to the gun shop I asked the actual gun shop reception guy the big fellow, I asked him about what type of knives I could use for hunting and camping and stuff and he's the one who actually advised me, even the little kid advised me, the Timor kid. I didn't take my advice from the internet about this stuff.

99. T61.26-T61.28.

100. T61.30-T61.36.

66. Under further cross-examination the offender agreed that he “wasn’t 100%” on the choice of a camping or hunting location [101] , and that although he had undertaken searches about Melbourne in that context, he was not “100% sure” that there would be wild pigs in that area [102] . Ultimately, the offender conceded that his interest was “what was going on overseas at the time” which was “ten times more important than hunting”. He said that hunting was just a “side thing” and a “long term plan”, and that it was one which he “probably wouldn’t even have been bothered doing” [103] .

    101. T63.25.

    102. T63.36-T63.38.

    103. T82.21-T82.32.

67. There, in my view, lies the reality. The offender’s primary interest was not in camping or hunting at all. His denial that he was engaged in preparing for a terrorist act simply flies in the face of overwhelming evidence to the contrary. His various assertions that his actions stemmed from an interest in hunting and camping were as nonsensical as they were fanciful, and amounted to nothing more than a ruse adopted by the offender in an attempt to cloak his criminal activity with an air of legitimacy. Consistent with the verdict of the jury, I am satisfied that in acting as he did on 12 October 2016, and specifically in purchasing the knives, the offender was preparing for a terrorist act.

68. It is also of some significance that the offender was arrested in an area near the Bankstown Court House and the Bankstown Police Station. That significance stems from the offender’s evidence that at the time of his offending he regarded the “whole Government in general to be evil” [104] . He agreed that the proximity of the Court House and Police Station was such that if he left the Musallah he knew that there would be people in the immediate vicinity whom he regarded as evil. Indeed, he went so far as to say that he regarded anyone connected to the Government to be evil whether they were “in a subway or in the Bankstown Court” [105] . Notwithstanding these concessions, the offender denied that he would have attacked anybody, stating that to do so would have been against his religion [106] . Once again, that assertion is fundamentally at odds with the whole of the evidence, and I do not accept it. I am satisfied that at the time of his arrest, the offender was ready, willing and able to carry out a terrorist act. Not only was he in possession of the necessary weapons, he also had items which could be used to hide his face, as well as a written pledge which, according to the article in Rumiyah, was to be pinned to the victim of an attack. I am satisfied that at the time of the offender’s arrest, the perpetration of a terrorist act involving the infliction of harm with the use of a knife was imminent.

THE OBJECTIVE SERIOUSNESS OF THE OFFENDING

104. T73.13-T73.14.

105. T73.18-T73.22.

106. T73.26-T73.31.

Submissions of the Crown

69. The Crown’s initial submission was that the offending fell at the higher end of the scale of objective seriousness. However, in oral submissions the Crown revised that position and submitted that the offending fell in the “mid to high” range. The Crown submitted that the evidence established that the offender’s radical views were deeply held, and that it was his extremist ideology which had principally motivated his offending.

70. The Crown acknowledged the evidence that for some period in the early part of 2016 the offender had expressed more moderate views. However, the Crown submitted that the offender’s post on his Facebook account on 17 June 2016 [107] amounted to him explaining, and indeed apologising for, that more moderate stance, and effectively announcing that he had reverted to his previously held extremist beliefs. The Crown submitted that this post was particularly telling not only because of its content, but because of the fact that it had occurred prior to the offending.

    107. At [13] above.

71. The Crown further submitted that the depth and extent of the offender’s radical and extremist beliefs were apparent, not only from his conduct leading up to his arrest, but also from the notes found in his cell. It was submitted that I would be satisfied that the terrorist act for which the offender was preparing was intended to inspire fear in the community, and that the carrying out of such act with the use of the knives was imminent. The Crown submitted that the offender played the “lead role” in the preparation and planning, that his offending was not spontaneous, and that contrary to what had been submitted on his behalf, there was no evidence that he committed the offence as a consequence of family pressure.

72. The Crown further submitted that the seriousness of the offending was aggravated by the fact that the offender took steps to conceal his involvement in it. These steps, in the Crown’s submission, manifested themselves in the offender (inter alia) concealing the knives and leaving behind the Casio watch in the bathroom at the Musallah. It was submitted that the fact that the offender had taken these steps was indicative of a consciousness on his part that he was engaged in serious criminal activity.

Submissions of the offender

73. Senior counsel for the offender accepted that the offending was serious, but submitted that it fell towards the lower end of the scale. He also accepted, as I understood it, that much of what the offender had said in evidence was at odds with the verdict of the jury. However, it was senior counsel’s submission that this was of limited significance.

74. Senior counsel further submitted that it was necessary to bear in mind that offending of this nature could be committed in a variety of ways. He submitted that the offending in the present case had been committed in a “naïve and simplistic setting”, and that the risk to the safety of the community was at the lower end of the scale. Senior counsel for the offender also pointed to the fact that although the offender had been verbally abusive towards police when arrested, he had not exhibited any violence towards them.

75. In support of the submission that the offending fell towards the lower end of the scale, senior counsel for the offender specifically pointed to what he described as “the immaturity of a 16 year old boy who had been caught up in seductive propaganda in the context of traumatically and actually distressing world events”. He submitted that the offender had been subjected to family and peer group pressures, in circumstances where he was a person of “demonstrated naivety”.

76. Senior counsel further submitted that there was no evidence which suggested that there was a plan for the use of the knives, and pointed to the evidence which established what he described as the waning of the offender’s radicalisation prior to his arrest.

Consideration

77. For the reasons I have already stated, I am satisfied that at the time of his offending, the offender was an unequivocally committed terrorist. He was corrupted, and motivated to act as he did, by an extreme and perverted ideology which advocated the commission of serious acts of violence upon innocent and law abiding members of the community. It has been observed on many occasions that such an ideology has no place in any civilised society. It is fundamentally contrary to the peaceful, ordered and democratic way of life that the citizens of this country have rightfully grown to protect and cherish. The level of the offender’s extremism, and the unequivocal commitment and dedication with which he pursued it, is clear from all of the evidence to which I have referred. His actions on 12 October 2016 were directed to putting into practice, with meticulous precision and attention to detail, the exhortations to go out and inflict terror and harm upon members of the community who were likely to be doing nothing more than going about their daily business. Armed with weapons, and inspired and motivated by the depraved advocacy of Islamic State, the offender engaged in acts which had a real capacity to cause those members of the community to fear for their lives.

78. The nature of this kind of offending is such that it will always incorporate some degree of planning. In the present case, that planning obviously included the purchase of the knives which were to be used as weapons. However, it extended substantially beyond that. It included, fundamentally, sourcing extremist propaganda which provided instructions as to how a terrorist attack could be carried out using such weapons. It also included concealing those weapons, ensuring that there were items of clothing available which could be used as a disguise, and taking steps to avoid detection. In these circumstances I am unable to accept the submission advanced on behalf of the offender that there was no evidence which suggested a plan for the actual use of the knives. On the contrary, the evidence, when viewed as a whole, establishes a clear plan to use the knives to inflict death or serious injury.

79. For the reasons I have stated, I am satisfied that an attack was imminent. The offender regarded the Government as “evil”. The nearby presence of the Police Station and Court House, both of which represented arms of Government, meant that the offender would inevitably have found many persons within the immediate vicinity who he regarded as appropriate targets.

80. I accept that his offending was simplistic, in the sense that it was generally unsophisticated. I also accept that the potential for harm arising from the offender’s actions may have been less than that posed in other cases. However, none of that means that the offending was not serious. On the contrary, it had the real capacity to inflict significant and immediate harm.

81. It may well be that for a period of time leading up to mid-2016 the offender had adopted a more moderate outlook, and had expressed more moderate views. Whilst this may have some bearing upon an assessment of his prospects of rehabilitation[108] , it is largely irrelevant to a determination of the objective seriousness of his offending. The simple and unassailable fact is that by October 2016 the offender had well and truly resumed his extremist stance. For the reasons I have already expressed, I am satisfied that the decision to do so was his own.

    108. See [96] and following below.

82. In all of these circumstances, I place the offending at or about the mid-range of objective seriousness. General deterrence remains a particularly important consideration in the determination of an appropriate sentence [109] .

    109. Crimes Act 1914 (Cth.) s. 16(2)(ja).

THE OFFENDER’S SUBJECTIVE CASE

83. Section 16A(2) of the Crimes Act 1914 (Cth) sets out a number of factors which are relevant to the subjective case of an offender. To the extent that those factors are applicable in the present case, I turn to consider them individually.

Section 16A(2)(f) – Contrition

84. There is no evidence before me to suggest in any way that the offender is contrite. Indeed, the evidence is to the contrary. Consistent with the offender’s protestations of innocence in the course of giving evidence[110] , Dr Nielssen recorded the following in his report of 24 October 2018 [111] :

(HG) acknowledged previous extremist views, but maintained that he did not intend to perpetrate a terrorist attack.

110. See [4] above.

111. At p.3.

85. Further, in the report of Kuranda Seyit, the following was recorded [112] :

(HG) is a polite and intelligent young man. He has been very honest in his discussions with his mentee and holds no need for pretence of deception, is openly a straight-forward person, who honestly believes he is innocent and had no intention to harm anyone.

112. Under the heading “Assessment”.

86. The fact that the offender displays no contrition for the offending of which he has been found guilty is not an aggravating factor. It simply means that he does not gain the mitigatory benefit of a finding that he is contrite.

Section s 16A(2)(j) – Personal deterrence

87. Bearing in mind the conclusions I have reached as to the offender’s ideology, and quite apart from considerations of general deterrence, there is in my view a strong need for any sentence to reflect considerations of personal deterrence.

Section 16A(2)(m) – Character, antecedents, age, means, and physical condition

88. The offender has no criminal history and is thus a person of otherwise good character. He is presently 18 years of age and was 16 years and 5 months at the time of the offending.

89. The affidavit of the offender’s father sets out some of the offender’s personal history [113] . The offender was 4 years of age when his parents separated. It is evident that the separation was acrimonious. The offender lived with his mother following the separation, however she later directed him to leave the family home, saying that she was unable to control him any longer. The offender then resided with his father for a period of six months, although there was tension between the offender and his father’s new partner.

    113. Commencing at (3).

90. In his report of 24 October 2018 [114] Dr Nielssen reported that the offender had informed him that he had “continued to feel depressed about his circumstances”. However, Dr Nielssen expressed the view [115] that the offender did not meet the accepted criteria for a diagnosis of any psychiatric, developmental or mood disorder, acquired brain injury, or actual or emerging psychotic illness.

    114. At p.2.

    115. At p.3.

88. The offender’s age is of particular significance. In Khalid [116] I summarised the principles applicable to the sentencing of young offenders. I did so by reference to the judgment of McClellan CJ at CL in KT v R [117] where his Honour had made the following observations:

(i) considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation (at [22]);

(ii) the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age (at [23]);

(iii) where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult (at [23]);

(iv) although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct (at [24]);

(v) the emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself, and has committed a crime of violence or considerable gravity (at [25]);

(vi) in determining whether a young offender has engaged in “adult behaviour”, the Court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence. Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society (at [25]);

(vii) the weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity. A ‘child offender’ of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age. However, the younger the offender, the greater the weight to be afforded to the element of youth (at [26]).

116. At [110]-[113].

117. (2008) 182 A Crim R 571; [2008] NSWCCA 51 commencing at [22].

92. I went on to make the following observations[118] :

    118. Khalid commencing at [110].

[110]   In BP v R [119] Hodgson JA accepted the correctness of those principles set out by McClellan CJ in KT before emphasising that Courts should not be “over-ready” to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the same case Johnson J, having set out the principles in KT said:

119. (2010) 201 A Crim R 379; [2010] NSWCCA 159.

[75] [T]he law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. The law considers youth and not just biological age. Where immaturity of an offender is a significant contributing factor to the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult.”

[111]   In JM v R [120] Simpson J (as her Honour then was), having reviewed the authorities, said:

[108] It seems to me that the weight of authority is that the seriousness of an offence is relevant to the emphasis that can be given to the youth of an offender. That does not mean that youth is not an important consideration; but retribution and deterrence cannot, in a case as serious as the present, give way entirely or even substantially to the interests of rehabilitation…

[112]   In R v Tran [121] Callaway JA observed that in the case of a youthful offender, rehabilitation is usually far more important than general deterrence. At the same time, his Honour emphasised that there are cases where just punishment, general deterrence, and other sentencing objectives carry at least equal importance. In Azzopardi v R it was observed that whilst, as the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigatory effect of an offender’s youth, it is only in the circumstances of the gravest criminal offending, and where there is no realistic prospect of rehabilitation, that the mitigatory consideration of youth is viewed as being all but extinguished. More recently in HJ v R [122] Garling J (with whom Hoeben CJ at CL and R S Hulme AJ agreed) observed:

[56] It is undoubted that the youth of an offender is a relevant factor to be considered in assessing what sentence ought be imposed. The Court makes an allowance for the youth of the offender because immaturity is usually involved. Where that immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years: R v Hearne [2001] NSWCCA 37 at [25].

120. (2012) 223 A Crim R 55; [2012] NSWCCA 83.

121. (2002) 94 VR 248; [2002] VSCA 52.

122. [2014] NSWCCA 21.

93. In the course of his evidence, the offender variously described himself at the time of the offending as a “young kid” [123] , a “dumb kid” [124] , a “dumb immature kid” [125] , “a little kid” [126] and “an idiot … (who) didn’t understand the whole thing [127] . I am mindful of the fact that the offender is now two years older than he was at the time he was arrested. Accordingly, I must not, and I do not, view his presentation in the witness box as reflecting his level of maturity at the time of his offending. However, whilst I acknowledge the offender’s age at the time of his offending, I am unable to accept the submission of senior counsel that he was a naïve 16 year old whose immaturity was a contributing factor to his offending. There is nothing in either of the reports of Dr Nielssen which might support that conclusion. Moreover, an examination of what the offender actually did tends totally against it. The offender deliberately sourced and posted extremist material which advocated violence. He sourced publications which not only advocated violence but gave instructions as to how it could be carried out. He followed those instructions to the letter. He purchased weapons which he then secreted. He carried camouflage gear. He took steps to ensure that he could not be traced. He was arrested in an area where he expected there would be appropriate targets. Conduct of that nature is, in my view, the antithesis of naivety. It reflects a considerable degree of forethought, intelligence and guile. It also reflects a deep and unstinting motivation to act upon, and put into specific effect, the irrational, immoral and heinous advice propounded in extremist propaganda issued by Islamic State. In my view, the offender’s conduct belies any suggestion of naivety, immaturity or lack of intelligence. None of those characteristics played any part in his offending.

    123. T9.1

    124. T9.2

    125. T15.16 – T15.17

    126. T78.27.

    127. T15.25-T25.29.

94. In DPP (Cth) v MHK (A Pseudonym)[128] the Victorian Court of Appeal (Warren CJ, Weinberg and Kaye JJA) dealt with a case involving a 17 year old offender who had pleaded guilty to doing acts in preparation for a terrorist act. The Court said[129] :

As the authorities, to which we have referred, make plain, while youth is relevant in determining the weight to be given to general deterrence and denunciation in the sentencing equation, its weight is diminished, quite measurably, in cases such as this, in which a youthful offender either participates in, or plans to carry out, actions of extreme violence. The protection of our society, and the upholding of its most fundamental values, necessitate that in cases such as this the sentencing considerations of general deterrence and denunciation must be given primacy above the ameliorating effect of youth.

128. [2017] VSCA 157.

129. At [66].

95. Such observations are apposite in the present case. None of this is to say that the offender’s age is to be disregarded. On the contrary, it is a relevant factor which must be taken into account and I have done so. However, consistent with the authorities to which I have referred, general deterrence and denunciation are to be given primacy.

Section 16A(2)(n) – rehabilitation

96. The report of Kuranda Seyit recorded that a mentoring program (in which the mentoring is administered in conversations over the telephone rather than face to face [130] ) commenced with the offender on 5 April 2018. The report stated [131] :

(HG) is a polite and intelligent young man. He has been very honest in his discussions with his mentee and holds no need for pretence or deception. He is openly a straight-forward person, who honestly believes he is innocent and had no intention to harm anyone. In our discussions we have spoken about prison life, family, career paths and religious views.

Although this has been a relatively short period of time, I have been able to really connect with (HG) and over the past 7 months I have seen some very positive signs. For instance, after his guilty verdict, (HG) was surprisingly very calm, accepting and rational and did not show any signs of anger or frustration. (HG), is not angry and accepts his fate. He realizes that he made mistakes when he was younger. He accepts that his posts on social media were not appropriate and he accepts that he held some strong views about the conflict in Syria. (HG) has shown maturity and level-headedness in his current predicament.

…

I have also given him clear advice, which has been supported by his parents, that Islam has many facets and groups and that each can vary in many respects, but we need to respect and accept that there will be divergence. I have told him that Islam, as practiced by the Prophet Muhammad, was always about taking the middle path or the path of moderation. He has accepted this and believes and accepts everyone for their views. He himself has stated that the way he practiced before as a teenager was wrong.

At the time he says he was exploring the right way to practice Islam and came under the influence of several online preachers (Sheikh Google). He became convinced that these preachers were saying the right thing and that is what led him on his pathway to spruik hate and put videos on line that supported this way of thinking. He says that he went through a phase where he realized that he was getting too fanatical and decided to relax his practice but then he was criticized by his friends and family members which then drove him back to becoming fanatical again. It was then that he was arrested.

130. T12.15-T12.25.

131. At p.2.

97. The report then stated [132] :

It is my strong opinion that (HG) is an intelligent and rational thinking person. He clearly has identified that his attitude and behaviour prior to being arrested was wrong. He has made some great progress and re-calibrated his way of thinking. With support from his family especially his father and brother he has softened greatly in his interpretation of Islam. He wants to practice his faith but does not want to force his ideas upon others. (HG) no longer holds any extreme or radical ideologies and in my opinion (HG) is on track to rebuild his life and to focus on his future, his career and his family.

132. At p.2.

98. It was recommended that the telephone mentoring program continue on the basis that it would provide the offender with support “to move towards a positive trajectory and enable him to achieve his goals”.

99. In the most recent of his reports Dr Nielssen said [133] :

(HG) acknowledged previous extremist views, but maintained that he did not intend to perpetrate a terrorist attack. However, he acknowledged that his attitudes and beliefs in the period before his arrest were wrong, and attributed them to his lack of maturity and his family influences during his upbringing and in his environment in the period before his arrest.

He presented as an intelligent and reflective person, capable of completing tertiary education or any kind of vocational training offered to him. Based on the attitudes expressed during the recent interview, (HG) was assessed to have a low likelihood of further offences arising from religious or cultural beliefs, or of any other type of offence.

(HG) appears to have made good progress in the individual counselling aimed at changing his previous radical views and no longer held radical views or believed in the use of violence.

133. At p.3.

100. Such observations were consistent with those in Dr Nielssen’s earlier report [134] , namely that the offender “does not have the two main predictors of further offending, which are a pattern of antisocial conduct and a substance abuse disorder”. The Crown objected to those parts of Dr Nielssen’s reports on the basis that the opinions expressed fell outside his area of expertise. However, such opinions were obviously expressed from the perspective of the offender’s mental state, an area in which Dr Nielssen is obviously well qualified. At the same time, the fact that such opinions were expressed from that perspective means that the weight which can be attributed to them is limited accordingly.

     134. At p. 6.

101. The offender’s father also touched on this issue in his affidavit[135] :

14 I have been speaking to (HG) since his arrest and whilst he has been in custody. (HG) has maintained his change. He is a much wiser young man who is focused on his future. We spoke about him completing his HSC but decided to wait for these matters to finalize.

135. At [14].

102. After being taken into custody in 2016 the offender was enrolled in a Year 11 Life Skills program[136] . He was then enrolled in Year 12 in the early part of this year with a view to working towards the completion of his High School Certificate. However, his enrolment was withdrawn in the middle of this year due to what were described as “unsatisfactory completion of assessments/workbooks”. The withdrawal of the offender’s enrolment co-incided with the time of his trial. One can well understand in those circumstances why his focus may not have been on his school work. He has expressed a desire to resume in 2019[137] .

     136. Affidavit of Michael Vita at para. [27].

     137. Affidavit of Michael Vita at para. [28].

103. According to his education reports, the offender demonstrates a level of work that exceeds expectations. He is said to be highly creative. He is described as an academically capable student who demonstrates competence in literacy and mathematics, and who is continually improving and growing in his ability to self-reflect and as a result, broaden his way of thinking. He is regarded as a mature and respectful learner who has built up a good rapport with other students and teaching staff[138] . The offender has also satisfactorily engaged in a cognitive behaviour program with his custodial case worker and has satisfactorily completed all modules to date[139] . There is also evidence that the offender has progressed to the highest level in an Incentive Reward Scheme which operates at the custodial facility at which he is being held[140] . As against those matters, there have been 24 separate reported instances of misbehaviour involving the offender in custody, although the last of them appears to have been in the latter part of 2017[141] .

     138. Affidavit of Michael Vita at paras. [28]-[29].

     139. Affidavit of Michael Vita at para. [51].

     140. Affidavit of Michael Vita at para. [56].

     141. Affidavit of Michael Vita at para. [54]-[55] and Annexure A.

104. In his evidence before me, the offender was asked about his current attitudes and views [142] :

     142. Commencing at T14.38.

Q. When it comes to your current attitudes, what are you able to tell the Court is your view about the extreme Salafist Islamic movement?

A. It's an ongoing problem, I believe, and I'm a victim of it myself and it's a very important issue that's around the world, in general, and it's a problem, like, there is extreme Christianity, there's extreme Judaism and we need to work in general, as a Muslim community, to prevent this stuff and prevent especially young people from falling into these traps. As myself, I've fallen into this trap myself.

HIS HONOUR

Q. When you say it's a problem, what are you referring to?

A. The extreme Islam.

WALMSLEY

Q. And, of course, we went into considerable detail about how the Salafist movement is picked up and run with by the ISIS organisation, you're aware of that?

A. Yes, ISIS uses it as a means to do whatever evil they want to do.

Q. And what is your attitude to ISIS?

A. It's just a bunch of people that want money, land, territory and they're using religion as a means to justify their violence and justify the atrocities they're doing around the world.

Q. And how do you feel, currently, about your previous attitudes to the Salafist movement and ISIS, how do you now feel about that?

A. I feel like I was stupid, dumb and I was sympathetic back then towards organisation with that like and I feel, obviously, like, I was just a dumb immature kid, I just needed a bit of time to grow up and you learn, obviously, from your mistakes.

Q. You, of course, followed the Court proceedings as it unfolded and have studied the evidence and the law, have you?

A. Yes.

Q. And do you understand that his Honour will, in due course, be sentencing you to an extensive period of imprisonment?

A. Yes, I do.

Q. And what are your plans for that time that you inevitably will spend in further imprisonment?

A. I will still proclaim my innocence, number one, but, secondly, I would make use of this time, as much as I could. When it comes to studying, I'm going to study as much as I can, try to get degrees, finish off my HSC and just study, that's the best thing I could do is exercise, fitness and studying, that's the best thing you could do in gaol, in lock up.

105. When asked about the possibility of returning to the adoption of an extreme ideology in the future, the offender said [143] :

No, I won't because I'm mature now and I know how to deal with people more, in a more mature manner. I was a little kid at that time, I did not understand anything. I was lost in between two worlds and I was confused and I was being led by, like a sheep by other people.

143. T78.26 – T78.29.

106. Although the offender’s prospects of rehabilitation remain a relevant consideration on sentence, they assume less significance than might otherwise be the case because of the nature of his offending[144] . Moreover, the successful rehabilitation of an offender found guilty of an offence such as this is necessarily dependent, at least in part, upon that offender renouncing previously held extremist views[145] . It follows that if a sentencing Court is satisfied that an offender has renounced those views, the prospects of rehabilitation will be greater and will constitute a matter for which the Court must make an appropriate allowance[146] . Conversely, if the Court is not so satisfied, an offender’s prospects of rehabilitation will be less optimistic. The offender bears the onus of establishing, on the balance of probabilities, that a previously held extremist ideology has been renounced or abandoned[147] .

     144. See [6] above. See also R v Martin (1990) 1 Cr App 477 at 480; R v Kahar [2016] 1 WLR 3156; [2016] EWCA Crim 568 at [15].

     145. Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 383 at [744]; [815]-[818].

     146. R v Touma [2008] NSWSC 1475 (at [145]).

     147. Olbrich at [25]-[28]; DPP v Besim [2017] VSCA 158 at [108].

107. For the reasons I have stated, the offender was, in a number of respects, an unsatisfactory witness. There are numerous aspects of his evidence that I simply do not accept. Although it is obviously open to me accept part of what any witness says, and reject part, my rejection of material aspects of the offender’s evidence obviously gives rise to an issue as to whether other parts of his evidence can be accepted as truthful and reliable.

106. If the offender is to be believed, he has abandoned his extremist views and will not return to them because he is now more mature [148] . Quite apart from the fact that I have found that immaturity played no part in his offending, there is a demonstrated history of the offender having previously moderated his views, only to then revert to an extremist stance. That history is a matter of obvious concern when it comes to assessing his prospects of rehabilitation. For all of these reasons, the offender’s evidence that he will not revert to his previously held extremist ideology must be approached with considerable caution. Putting it at its highest, the entirety of the evidence going to the issue of rehabilitation may suggest that tentative steps have been taken by the offender to move away from his previously held extremist ideology. I can put the matter no higher than that, and I express such conclusion with considerable caution[149] .

     148. T78.24-T78.29.

     149. Touma at [144]-[145]; R v Sharrouf [2009] NSWSC 1002 at [49]-[50].

CONCLUSION

109. I am required to impose a sentence that is of a severity appropriate in all of the circumstances [150] and I must ensure that adequate punishment is imposed [151] .

     150. Crimes Act 1914 (Cth.) s. 16A(1).

     151. Crimes Act 1914 (Cth.) s. 16A(2)(k).

110. The offender has been in custody since his arrest on 12 October 2016 and the parties agree that any sentence should be backdated to that time. Senior counsel for the offender sought an order pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW) that any sentence be served by the offender as a juvenile up to his attaining the age of 21 years. The Crown did not oppose the making of that order.

111. I therefore make the following orders:

1. The offender is convicted of the offence of doing acts in preparation for, or planning, a terrorist act or acts.

2. The offender is sentenced to imprisonment for 16 years commencing on 12 October 2016 and expiring on 11 October 2032.

3. I specify a non-parole period of 12 years imprisonment commencing on 12 October 2016 and expiring on 11 October 2028.

4. The offender will be eligible for release on parole on 11 October 2028.

5. I am satisfied that there are special circumstances within the meaning of s 19(4)(c) of the Children (Criminal Proceedings) Act 1987 (NSW) and I order, pursuant to s. 19(1) of that Act, that the sentence that I have imposed upon the offender be served by him as a juvenile offender up to his attaining the age of 21 years on 6 May 2021.

6. Pursuant to s 105C of the Criminal Code 1995 (Cth) I warn the offender that an application may be made for a continuing detention order requiring him to be detained after the completion of his sentence.

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Endnotes

Decision last updated: 07 April 2020