R v Kent

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE CRIMINAL DIVISION
No. 1544 of 2006

THE QUEEN

SHANE KENT

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JUDGE OF THE COURT:	BONGIORNO JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 and 19 August 2009
DATE OF SENTENCE:	2 September 2009
CASE MAY BE CITED AS:	R v Kent
MEDIUM NEUTRAL CITATION:	[2009] VSC 375

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CRIMINAL LAW — Sentencing — Terrorism offences — Plea of guilty — Membership of a terrorist organisation — Creating a document connected with a terrorist act — Remorse — Proof of facts relevant to remorse — No admissible evidence — Criminal Code (Cth), Pt. 5.3 — Crimes Act 1914 (Cth), Pt. 1B — Charter of Human Rights and Responsibilities (Vic), s. 22 — R v Olbrich (1999) 199 CLR 270

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Appearances:	Counsel:	Solicitors:
For the Crown	Mr N. Robinson S.C. with Ms L. Taylor	Commonwealth Director of Public Prosecutions
For the prisoner	Mr J. Champion S.C. with Mr J. O’Sullivan	James Dowsley & Associates

HIS HONOUR:

Shane Kent was originally indicted with 12 other men on a number of counts alleging offences against Part 5.3 of the Commonwealth Criminal Code — terrorism offences. Kent himself faced three counts, that of being a member of a terrorist organisation and two counts relating to his having assisted in the production, with one of his co-accused, of part of a propaganda video for use on an overseas website said to be connected with the notorious international terrorist organisation, Al-Qaeda. Following interlocutory rulings which resulted in the severance of the two latter counts from the indictment, Kent stood trial with his 11 co-accused solely on the count of being a member of a terrorist organisation. That trial ran from February to September 2008 and resulted, as far as Kent was concerned, in the jury being discharged without verdict when they failed to reach agreement on the one count he faced. He was remanded for re-trial on that count.
In due course an indictment was filed against Kent in which the count of being a member of a terrorist organisation was joined, again, with the two counts previously severed. He pleaded not guilty on arraignment and a trial date was set. However, shortly before that trial was due to commence before Byrne J, the Crown filed over a new indictment against Kent which charged him with the count of being a member of a terrorist organisation and one count of making a document connected with preparation for a terrorist act, he being reckless as to that connection. On 28 July 2009 Kent pleaded guilty to these two counts before Byrne J, each of which carries a maximum penalty of imprisonment for ten years.
On 18 and 19 August 2009 a plea in mitigation in respect of these offences was heard. It is now the function of this Court to pass sentence in respect of them.
The offences
The first count on the indictment, that of being a member of a terrorist organisation between 1 July 2004 and 8 November 2005, concerned Kent’s membership of a jemaah, Arabic for group, headed by Abdul Nacer Benbrika, an Algerian migrant who arrived in Australia in 1989. Benbrika and six of his co-accused, were convicted by a jury of being members of a terrorist organisation being that jemaah. Another co-accused, Izzydeen Atik, had, some time earlier, pleaded guilty to that charge and another, and had been sentenced.
In sentencing Benbrika and his co-accused on 3 February 2009, this Court reviewed the nature of the offences proscribed by Pt. 5.3 of the Code by reference to decisions of the New South Wales Court of Criminal Appeal and set out, in some detail, the nature of the terrorist organisation led by Benbrika of which Kent has now conceded he was a member. It would serve no useful purpose to repeat verbatim what was said about that organisation in the Court’s sentencing remarks which are published at [2009] VSC 21[1]. However, as they are relevant to Kent’s sentence, paragraphs four to fifty-two of those sentencing remarks have been extracted and appended to this judgment. As far as the existence and nature of the terrorist organisation is concerned, Kent will be sentenced on the same factual basis as each of his former co-accused was sentenced in respect of their membership of the Benbrika organisation. The paragraphs referred to are incorporated by reference into these sentencing remarks as being an appropriate description of the nature of the terrorist organisation of which Kent has admitted membership.
[1]R v Benbrika & ors [2009] VSC 21.
The Crown case as to Kent’s membership of the terrorist organisation rests, as did its case against Benbrika and his other co-accused at trial, largely upon evidence derived from intercepted conversations involving members of the jemaah between 27 July 2004 and 2 November 2005. These conversations were both by telephone and in face-to-face discussions recorded on listening devices concealed in Benbrika’s home pursuant to warrants obtained by investigators. The Crown relied on some 138 of these conversations in this case, being a selection of the 482 conversations proved by the Crown in the trial of Benbrika, Kent and their co-accused in 2008.
That Kent was a committed jihadi and was committed to the Benbrika organisation emerges from a number of the conversations. For example, on 27 September 2004 he complained of oppression by the authorities making it difficult to advance the Islamic cause in Australia by violence. In doing so he did not dissent from a statement by one of his co-accused encouraging Benbrika to “bring the tools” so that “something” could be done before a forthcoming Federal election—the inference being that the group should engage in some kind of terrorist activity to put pressure on the Commonwealth government to achieve the group’s aims, one of which was the withdrawal of Australian troops from Iraq and/or Afghanistan.
On 22 October 2004, Kent engaged in a conversation with Benbrika and another of his co-accused as to whether investigators would have found anything on his computer which had been seized. In that conversation he conceded that the group was terrorist in its intention. In each of these conversations, as in many others, he spoke as a member of the group and not as an outsider.
Upon the execution of search warrants on his house, Kent was found by investigators to have had a considerable electronic library of terrorist material, much of it supportive of the Islamic jihad in the way that term was interpreted by Benbrika—the promotion of the Islamic cause by violence against the kuffar, Arabic for “unbelievers”. This material included videos of hostages being beheaded. In some of the recorded conversations, Kent and other members of the group discussed internet materials of a similar nature. Previously, upon returning to Australia from overseas in 2003, Kent was found to be in possession of jihadi literature, including an Al-Qaeda training manual, and an electronic versions of photographs of himself dressed as a mujahid, or warrior, carrying what appears to be an automatic weapon. It is said, however, by his counsel that these photographs originated in Australia, not Afghanistan.
The Crown maintained that Kent was an active member of the organisation over the whole of the indictment period. The prosecutor pointed to conversations on 27 July 2004 and 10 July 2005 as both indicating active involvement by him. In the first Kent expressed concern about a television news item about terrorism in Melbourne which he thought might have been about the group. A year later, in another conversation with Benbrika, he was still concerned that the group might be found out.
In its assessment of Kent’s criminality, the Crown emphasised the fact that in 2001 he undertook six or seven weeks of military training at a camp called Al Farouq in Afghanistan. This training included weapons training, training in topography, and training in the demolition of buildings using explosives.
The evidence of this training was undoubtedly relevant to Kent’s membership of the Benbrika organisation because, as a member, he brought to the organisation many skills which would be of use to it in the carrying out of its terrorist activities. However, the significance of Kent’s having undertaken such training should not be overemphasised. He did so before 11 September 2001, and in circumstances of some ambiguity as to the purpose of the camp and the ideology behind its establishment and operation.
Overall, the Crown argued that, as far as Kent’s membership of the Benbrika organisation is concerned, his criminality should be regarded as “mid-range”.
Counsel for Kent submitted that there were a number of features of his involvement in the Benbrika organisation which should lead the Court to regard his membership as being less than enthusiastic. They submitted that there was no evidence that he contributed to the sandooq (Arabic for “common fund”), no evidence that he gave the bayat (Arabic for pledge) to Benbrika, and no evidence that he was engaged in the car re-birthing scheme by which some members sought to finance the group’s operations. Counsel pointed to the fact that Kent did not attend any of the “bonding trips” or other group activities which were engaged in by others. He did not attend any of the dars classes, and there was no evidence that he spoke approvingly of terrorist attacks in Western countries. They also pointed to the fact that Kent was not involved in any group activities with respect to any Muslims in Sydney, that he was not involved in any of the credit card frauds perpetrated by Atik to raise funds, and there was no evidence that he knew anything of SIO 39’s trip to Mount Disappointment where he demonstrated an explosive device to Benbrika.
Kent’s counsel also emphasised that there was evidence which, they submitted, suggested that, as time passed, his enthusiasm for the organisation diminished somewhat. He is said to have associated with Benbrika less as time went by. He even frequented venues which served alcohol and played Western music: each being, it was said, hardly consistent with being a dedicated Muslim. His counsel provided extracts from intercepted conversations which, he said, supported a submission that Kent was not as fervent a member of the Benbrika organisation at the end of 2004 as he might have been earlier. He often said he had family obligations which prevented him associating as much with the jemaah, and by April 2005 it appears he may not even have had the phone numbers of some, at least, of the other known members. These matters, argued his counsel, suggested that he was not, at least then, as enthusiastic as other members of the group.
As against this, however, there are subsequent conversations which show that Kent was still concerned about the jemaah and the fact that it might have been being watched by law enforcement authorities. The only safe conclusion that one can draw from this material, however, is that, whilst Kent remained a member of the organisation throughout the whole of the indictment period, his fervour probably waxed and waned from time to time, depending upon his circumstances. This situation may have been brought about by increasing family responsibilities which he had acquired, or simply because he was concerned that the organisation had done very little in a concrete way to engage in the activities for which it was established.
Mr. Champion, of senior counsel, for Kent submitted that his criminality with respect to his membership of the Benbrika organisation should be assessed as being at the lower end. He submitted that Kent had really done nothing to further the cause of the organisation’s objects, and that his degree of commitment was, as had been submitted, somewhat less than enthusiastic.
The Court has had the benefit of a large amount of factual material as to the Benbrika organisation and Kent’s membership of it, and it has heard exhaustive submissions by the prosecutor and Kent’s counsel as to the level of his involvement. Having regard to this material and counsels’ arguments, I am satisfied that the criminality for which Kent must be punished in respect of his membership of the Benbrika organisation falls at about the mid-point of criminality for this offence, or slightly below that point. With respect to the application of the principle of parity, his criminality should be regarded as being similar to that of Ezzit Raad or Abdullah Merhi, and considerably less than that of his other former co-accused.
The second count faced by Kent, to which he pleaded guilty, was that of making a document connected with a terrorist act, being reckless as to that connection. Again, a mass of material was assembled by the Crown to prove this count which related to his part in modifying or improving the first seven or so minutes of a propaganda video originally created by a jihadi website outside Australia. Kent’s plea of guilty to this offence makes it unnecessary to canvass, in any detail, the material to which I have referred. It is sufficient to describe the essence of the offence briefly.
From time to time, members of the Benbrika organisation viewed material on various internet sites generally supportive of Islam and sometimes exhortative of violent jihad in the Islamic cause. One such site was called “At-Tibyan Publications”, a site which originated outside Australia with connections to Al-Qaeda. On 10 May 2005, Kent opened an account with At-Tibyan so that he could access its material. He was required to do so if he wished to access the site as it was password protected and available only to subscribers. Kent had been introduced to the site by one of his former co-accused who was a close confidant of Benbrika and a senior member of Benbrika’s organisation. In registering as a subscriber to At-Tibyan, Kent chose the user name QoswarA, the Arabic word for lion.
On or shortly after 19 May 2005, Kent was informed by his co-accused, who had introduced him to the At-Tibyan website, that the site was seeking anyone that was “good with graphics” and that he, the co-accused, had responded. Kent subsequently agreed to join with him to assist At-Tibyan in the production of the opening sequence of an At-Tibyan video entitled “Such are the Messengers Tested and Then the Outcome will Be in Their Favour”. This video, as finally produced, extolled the virtues of martyrdom in the Islamic cause by reference to a large number of scholars who had allegedly been imprisoned because of their religion, and mujahideen who had been killed whilst engaging in violent jihad. It extolled the alleged virtues of Osama bin Laden and, particularly, Abu Musab al-Zarqawi, the leader of Al-Qaeda in Iraq—both of them notorious terrorists. As his contribution to the production of the video, Kent manipulated images of the depicted scholars and martyrs, and added moving clouds, water effects and other graphic devices to it, for the purpose, presumably, of enhancing its aesthetic appeal. Upon completing this task, Kent and his accomplice returned the introduction to the video to the site in a form in which it could be added to the rest of the video for publication. The video’s purpose was, clearly, to encourage viewers to emulate the persons depicted in it, not only in their devotion to Islam but also in their willingness to engage in atrocities in the Islamic cause. It is the latter which forms the connection between the video (or document as it is referred to in the charge) and the preparation for engagement of persons in a terrorist act or acts. By pleading guilty to the charge upon which he was indicted, Kent admitted that he was reckless in his consideration of this connection.
Kent’s criminality with respect to this offence must be assessed, as far as is possible, by reference to the potential for his actions to have advanced the cause of violent jihad. That assessment must be made in light of the fact that the video he assisted to produce was to be published on the At-Tibyan website and, thus, made available to its subscribers to encourage them to emulate the subject of it.
Counsel for Kent argued that, as Kent was only concerned with the introduction to the video, there is no evidence that he knew what it would contain when it was finished. This submission must be rejected. The persons in the video, the general tenor of it and the purpose for which it was being made was obvious enough from the material which Kent worked upon. Kent will be sentenced on the basis that he assisted to produce one item of terrorist propaganda in respect of which he was reckless as to its connection with a terrorist act or acts.
Personal circumstances
Shane Kent was born on 23 November 1976 and is, accordingly, now 32. He attended Glen Waverley High School to Year 10 and then Huntingdale Technical College to Year 11, which he did not complete. Between 1993 and about 1995 he was employed as an apprentice painter and then as a painter, an occupation which he has followed intermittently since.
In 1997, Kent converted to Islam. The following year he travelled to South Africa with a friend and lived at an Islamic university. Subsequently he and his friend travelled to Saudi Arabia and Yemen where they studied at an Islamic school in the city of Sana for about four months. During this time they visited Egypt.
In 1999, he married Eman Abdou, an Islamic woman whom he met through the Preston Mosque. They now have three children and Kent’s wife is currently pregnant.
Between 2000 and about 2004, Kent undertook volunteer work for the Islamic Information and Support Centre of Australia (IISCA), and travelled to Pakistan and Afghanistan and subsequently to Pakistan again, to Lebanon, and to the UAE where Kent’s brother worked as an English teacher. He worked in Dubai for an internet website company (Dubai Technology Partners) for about five months until, in 2003, his passport was cancelled and he returned to Australia. At about the beginning of the indictment period, July 2004, he was studying a multimedia diploma course at Broadmeadows TAFE and lived with his wife and children in Meadow Heights.
Kent was arrested on 8 November 2005 and remained in custody until he was granted bail shortly after his first trial ended without a verdict in September 2008. Overall, up to today, he has served 1,115 days of pre-sentence detention applicable to the offences to which he has now pleaded guilty.
Considerable emphasis was placed by Kent’s counsel, in his plea, on his mental health. The Court has before it a number of reports on this subject: those of Mr. Patrick Newton, a psychologist, dated 14 September 2006 and 15 August 2009; and those of Dr. Danny Sullivan, dated 22 February 2008; Dr. Marita Smith, dated 21 July 2009; and Dr. Lester Walton, dated 11 August 2009, all psychiatrists.
When Mr. Newton first examined Kent in September 2006 he had been incarcerated in the Acacia Unit of HMP Barwon for some ten months. Unsurprisingly, he diagnosed Kent as suffering from major depression which, although contributed to by a number of factors revealed in his history, had been severely exacerbated by his then conditions of incarceration. He noted suicidal ideation, poor appetite, profound sleep disturbance, a pervasive sense of lethargy and fatigue, and similar classical symptoms of depression. Mr. Newton considered that Kent was suffering from a recurrent major depressive disorder of moderate to severe clinical intensity.
This Court had occasion to consider the impact of the conditions of incarceration of inmates at the Acacia Unit with respect to the trial and sentencing of all of Kent’s co-accused. The evidence which the Court considered in this regard, and the consequences of that consideration, are described in two previously published judgments: R v Benbrika and ors (Ruling No. 20)[2] and in the sentencing remarks published with respect to the sentencing of seven of Kent’s co-accused who were tried with him last year[3]. There is no need to repeat those matters here. They are now well known, as is the fact that those co-accused, or, at least, some of them, are now being held in the Acacia Unit as sentenced prisoners. Kent will be sentenced, as they were, on the basis that he will be subjected to these, or similar, conditions after he is sentenced.
[2](2008) 18 VR 410.
[3]R v Benbrika & ors [2009] VSC 21.

The Victorian Charter of Human Rights and Responsibilities provides that persons deprived of their liberty by law must be treated with humanity, and with respect for their inherent dignity as human beings.[4] To place people in a custodial environment which is able to be foreseen as likely to result in their suffering a major psychiatric illness can hardly be said to be treating them with humanity. This is particularly so if, as here, no cogent grounds have ever been put forward as justifying such conditions for these prisoners. The relevance of the conditions of incarceration to sentencing has been referred to in the sentencing remarks with respect to Kent’s co-accused to which reference has been made. The law requires that, if the conditions of incarceration of a prisoner are so harsh as to produce the kind of consequence referred to by Mr. Newton, that must be taken into account in determining the length of any appropriate sentence.
[4]Charter of Human Rights and Responsibilities (Vic), s. 22(1).
When Mr. Newton reviewed Kent in August 2009, he found that he was still suffering significant, enduring and severe psychological disturbance. He referred, as he had done in his earlier report, to Kent’s history of poly-substance abuse, including the abuse of alcohol, and of his prior history of depression and anxiety going back to childhood. He described his ongoing psychological symptoms in much the same way as he had in 2006. He considered that he was still suffering significant depressive symptoms which were managed with an antidepressant prescribed by Dr. Smith. He said that his problems were such that he needed intense treatment and that without that treatment he was at a high risk of relapse to even more severe depressive symptoms in the immediate aftermath of his being sentenced.
Mr. Newton particularly referred to Kent having expressed unreserved remorse and regret for his involvement with the Benbrika organisation. He said that Kent told him that, although he still had concern for the suffering of Islamic people in various parts of the world, he no longer endorsed the Benbrika group’s views and wished to distance himself form his past statements and actions. He said that Kent told him that whilst he retained a belief in God he was not currently pursuing Islamic practices.
Counsel for Kent placed particular emphasis on Mr. Newton’s opinion, expressed in his second report, that Kent’s offending took place during a time when the combined effects of his various psychological problems affected his capacity to reason clearly about his actions and their consequences.
Dr. Danny Sullivan examined Kent on 22 February 2008, just after his then trial had commenced. He considered that Kent was suffering then from a recurrent depressive disorder and his comments in relation to it were similar to those of Mr. Newton. He considered that he warranted increased mental health attention, an increase in antidepressant medications, and interventions to assist him to cope.
Kent began seeing Dr. Marita Smith, a psychiatrist in private practice, in November 2008 after he was released on bail. She diagnosed him as suffering from a major depressive disorder, generalised anxiety and acute traumatic stress disorder. She prescribed psychotropic medication and various other modalities of treatment which Kent apparently underwent until his return to prison recently. She considered that his mental state would worsen with the stress of his current predicament, and she recommended that his mental state be monitored closely.
Dr. Lester Walton examined Kent on 7 August 2009 during his present period of incarceration. He thought that Kent was suffering from a chronic, waxing and waning, major depressive disorder with parallel alcohol and drug abuse—the two phenomena not being independent of each other. Dr. Walton considered that Kent’s psychiatric condition was relevant to his offending. This was because, having lapsed back into depression and alcohol abuse, he was urged by his wife and mother to meet with Benbrika and his co-accused. Like Mr. Newton, he considered it highly likely that Kent’s capacity to make sound decisions and exercise proper social judgement was compromised.
Dr. Walton considered that Kent had derived benefit from the treatment administered by Dr. Smith, and he also noted that Kent “castigate(s) himself with his ill considered involvement in the organisation and he expresses sorrow for the distress he has caused family members”. Dr. Walton considered that during the period of Kent’s offending he was mentally disturbed and that being imprisoned would be more onerous than usual for him because of his psychological condition.
In terms of sentencing, Kent’s psychological state may be relevant in a number of different ways.[5] First, he may have been psychologically vulnerable at the time he began associating with Benbrika. If so, it could be argued that his moral responsibility for the offences he has committed is diminished. However, having regard to the nature of those offences, this factor must be given very little weight. His offending was not impulsive or undirected. It occurred over a considerable period. He had ample opportunity to reflect on his membership of the jemaah and appreciate the consequences of it. It involved a deliberate association with a number of people who were intending to effect a particular result. Whatever might have been the effect of Kent’s psychological state on him at the relevant time, I am not satisfied that he could not have desisted from his membership of the group had he so wished.
[5]R v Tsiaras [1996] 1 VR 398 at 400; R v Verdins (2007) 16 VR 268.
The fact that Kent is currently suffering from a psychiatric disorder, much like most of his co-accused who were sentenced earlier this year, makes it appropriate to take into account the probable conditions under which he will serve his sentence and the effect of those conditions on his psychological state. As indicated, this matter was considered in sentencing Kent’s co-accused. It will be likewise considered in his case. Apart from the matters to which I have referred above, Kent’s psychiatric condition will also be taken into account to the extent appropriate in the circumstances of this case, in considering questions of general and specific deterrence as required by law.
There were also a number of written testimonials before the Court with respect to Kent. They were provided by persons of diverse backgrounds: a school welfare officer, a dentist, and family friends and relatives. They will all be given appropriate consideration bearing in mind their purpose and their limitations.
Counsel for Kent emphasised what he described as Kent’s remorse in respect of his offending. He argued that this was demonstrated in at least two ways: by his plea of guilty to these offences and then by his expressions of remorse to those examining him, particularly, perhaps, Mr. Newton and Dr. Walton.
Kent will undoubtedly be given the benefit of his plea of guilty as required by s. 16A of the Crimes Act 1914 (Cth). By pleading guilty he has saved the cost and inconvenience of a trial which might have taken up to two months. However, whether that plea bespeaks remorse in any conventional sense is more difficult to resolve. First, remorse is a difficult concept and perhaps particularly difficult in a case such as this. Secondly, the forensic benefit of Kent’s plea of guilty, when combined with the long period of pre-sentence detention he has already served, may have made the entry of that plea an extremely wise decision quite aside from any question of remorse. The case against him was strong on both counts and the benefit of pleading guilty was obvious.
An even greater difficulty for Kent is the fact that he relies for proof of his remorse upon statements he made to Mr. Newton and Dr. Walton. The Crown made it clear during the course of the plea hearing that it did not accept Kent’s expressions of remorse to the practitioners concerned as evidence of that remorse, and that, if he sought to rely on it as a factor in mitigation of sentence, it needed to be proved by admissible evidence on the balance of probabilities. In the course of the plea the Court raised the same difficulty faced by the prisoner in demonstrating remorse in the way he sought to do.[6]
[6]R v Schofield [2003] NSWCCA 3 per Hulme J at [9]–[20]; R v Olbrich (1999) 199 CLR 270 at 281.
There is no doubt that Kent is sorry for having got himself into the situation in which he is facing a gaol sentence. He is doubtless sorry for having imposed the hardship of his incarceration on his family. However, whatever his feelings in this respect, I am not prepared to accept, on the material proffered, that he has abandoned the cause of violent jihad. There is no admissible evidence of his having done so, or of his being genuinely contrite for what he did. Accordingly he will be sentenced, like his co-accused, for the crimes he has committed but without any mitigation of his penalty for remorse or contrition. Had I been satisfied he was remorseful or contrite it would have affected the approach taken to questions of specific deterrence and rehabilitation.
The Court is satisfied, pursuant to s. 17A of the Crimes Act, that, having considered all other available sentences, no sentence other than a sentence which requires immediate imprisonment is appropriate in all of the circumstances of this case. The Court is so satisfied because of the nature and gravity of the offences to which Kent is to be sentenced, the circumstances in which the were committed, and his personal circumstances.
In sentencing Kent the Court must take into account each of the matters referred to in s. 16A of the Crimes Act. In this case, the following matters are particularly relevant: the nature and circumstances of the offences;[7] the fact that he has pleaded guilty to those offences;[8] the need to ensure that he is adequately punished for those offences;[9] his character, antecedents, age, means and physical or mental condition;[10] his prospects of rehabilitation;[11] and the probable effect that any sentence would have on his family or dependents. The Court must also take into account the nature and severity of the conditions that may be imposed on or may apply to him in serving his sentence.[12]
[7]Crimes Act 1914 (Cth), s. 16A(2)(a).
[8]Crimes Act 1914 (Cth), s. 16A(2)(g).
[9]Crimes Act 1914 (Cth), s. 16A(2)(k).
[10]Crimes Act 1914 (Cth), s. 16A(2)(m).
[11]Crimes Act 1914 (Cth), s. 16A(2)(n).
[12]Crimes Act 1914 (Cth), s. 16A(3).
If the activities of the Benbrika organisation are properly characterised as including the promotion of violent jihad by other organisations here and/or overseas, it could be said that, in assisting in the production of the At-Tibyan video, Kent was merely acting as a member of that organisation and fulfilling his duties as such. If that conclusion were reached, an argument for total concurrency of the sentences to be imposed in respect of counts 1 and 2 would have considerable weight. In the circumstances of this case it is appropriate to view Kent’s activities with respect to count 2 as being largely but not wholly activities which he engaged in as a member of the Benbrika organisation. Accordingly, the sentence imposed upon Kent in respect of count 2 will be substantially but not wholly concurrent with his sentence on count 1.
Sentence
It is the sentence of the Court that Shane Kent be convicted and sentenced as follows:
1.That on the count of being a member of a terrorist organisation (count 1) he be convicted and sentenced to four and a half years’ imprisonment, such sentence to commence on 3 September 2009.
2.That on the count of making a document connected with a terrorist act, being reckless as to such connection (count 2), he be convicted and sentenced to two and a half years’ imprisonment, such sentence to commence on 2 March 2012.
3.That pursuant to ss. 19AB(1) and 19AG of the Crimes Act 1914 (Cth), the non-parole period fixed in respect of the aggregate sentence imposed upon him be three years and nine months.
4.That pursuant to s. 18 of the Crimes Act 1914 (Cth), all of the said sentences be served without hard labour.
5.That it be declared, pursuant to s. 16E of the Crimes Act 1914 (Cth) and s. 18 of the Sentencing Act 1991 (Vic), that he has served 1,115 days of pre-sentence detention in respect of the offences for which he is now sentenced and it is ordered that this declaration be entered in the records of the Court.
APPENDIX R v Benbrika & ors [2009] VSC 21, [4]–[52]
The nature and particular characteristics of the offences created by Part 5.3 have been considered by the New South Wales Court of Criminal Appeal in two cases concerning the indictment and subsequent conviction of Faheem Khalid Lodhi. Lodhi was indicted on four counts of having committed breaches of ss 101.5, 101.6 and 101.4 of the Code, each of which are found within Part 5.3. These counts concerned collecting and making documents connected with the preparation of a terrorist act, doing an act in preparation for a terrorist act and the possession of a thing connected with preparation for a terrorist act. The subjects of the allegations against Lodhi were the collecting of maps of the Australian electricity supply grid, the seeking of information from a chemical supply company about the availability of materials capable of being used to make explosives or incendiary devices, and the possession of a document setting out the ingredients for and the method of making poisons, explosives, detonators, incendiary devices and other similar things. On the evidence which was led at Lodhi’s trial, his plans, such as they were, had not advanced beyond the collection of materials for future use. No target had been selected nor had there been any imminent, let alone actual, threat of personal injury or damage to property.
In an interlocutory appeal concerned with the validity of the indictment in Lodhi’s case, Spigelman CJ (with whom McClellan CJ at CL and Sully J agreed) referred to the offences created by Part 5.3 of the Code in these terms:
“[65] Each of the offence sections is directed to the preliminary steps for actions which may have one or more effects. By their very nature, specific targets or particular effects will not necessarily, indeed not usually, have been determined at such a stage. …
[66] Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, e.g. well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy.”[13]
[13]Lodhi v The Queen [2006] NSWCCA 101
Upon being convicted of three out of the four counts upon which he was indicted, Lodhi was sentenced to a term of imprisonment of 20 years with a non‑parole period of 15 years. This sentence was imposed in respect of the count of doing an act in preparation for a terrorist act. Concurrent sentences of ten years were imposed in respect of the two counts of collecting and possessing documents connected with a terrorist act.
In dismissing an appeal in respect of Lodhi’s sentence, the Court of Criminal Appeal (Spigelman CJ, Barr and Price JJ) emphasised the serious nature of these offences as demonstrated by the maximum penalties provided for them by the statute. It pointed out that this was so notwithstanding the fact that criminal liability in respect of such activity may arise at a very early stage of what might or might not ultimately result in a terrorist act. The offences exist to protect the community from such acts by disabling those who might go on and commit them, not only before any damage is inflicted but before the possibility for such damage becomes real. As Spigelman CJ said:
“By the extended range of conduct which is subject to criminal sanction, going well beyond conduct hitherto generally regarded as criminal, and by the maximum penalties provided, the Parliament has indicated that, in contemporary circumstances, the threat of terrorist activity, requires condign punishment.”[14]
[14]Lodhi v The Queen [2006] NSWCCA 101 per Spigelman CJ at [79]; Barr J at [211] and Price J at [215] agreeing.
Although the offences now before this Court differ from those which were dealt with in Lodhi, the principles enunciated by the Court in that case apply equally to the cases of the seven men now to be sentenced. This is particularly so with respect to that Court’s acceptance that the legislative intention behind Part 5.3 of the Code was to impose criminal liability upon persons who engaged in activities proscribed by that part of the Code at a very early stage of those activities — well before such liability might ordinarily be imposed at common law or under conventional criminal statutory provisions.
All of the prisoners to be sentenced in this case were convicted of being members of a terrorist organisation contrary to s 102.3(1) of the Code. For them to have been so convicted, the jury must have found that each of them was such a member for some period between 1 July 2004 and 8 November 2005, the day upon which, in simultaneous police raids, all of them were arrested. In fact it was the Crown case that all of them, with the exception of Amer Haddara, were members for the whole or most of that period — at least from the end of 2004.
In Haddara’s case, such membership was alleged to have been confined to the period between 17 September and 8 November 2005. In the case of Abdullah Merhi, his counsel urged a finding, for sentencing purposes, that he abandoned such membership as he might have had in about the middle of 2005. The particular cases of Haddara and Merhi will be addressed separately in due course.
Because of the complexity of the statutory definitions involved in the concept of a terrorist organisation as proscribed by Part 5.3 of the Code, there are many forms in which such an organisation could exist. The Crown case here was that the terrorist organisation to which these men belonged was an unincorporated body which was directly or indirectly engaged in preparing or fostering the doing of a terrorist act: that is to say, preparing or fostering an action or threat of action involving the use of explosives, incendiary devices or weapons intended to advance a religious cause, namely the pursuit of violent jihad in the advancement of Islam. The Crown alleged that this action or threat of action was intended to coerce or influence a government or governments and/or to intimidate the public or a section of the public.
The jury, by its verdicts, found that this organisation existed during the indictment period, that is to say between 1 July 2004 and 8 November 2005, and that each of the prisoners belonged to it. It also found that Abdul Nacer Benbrika directed the activities of the organisation.
Benbrika is now a 48 year old former aviation engineer who was born, raised and educated in Algeria. He migrated to Australia in 1989, partly, at least, because he perceived the observance of Islam to be becoming more difficult in his home country. After he arrived in Australia it would appear that he became increasingly recognised as a learned person in the Islamic community. He taught at various mosques, and at Islamic organisations such as the Islamic Information and Support Centre of Australia, which is known by its acronym “IISCA”. He was said by Samir Mohtadi, a prominent Muslim who was called by the Crown, to follow a version of Islam which he, Mohtadi, regarded as “harsh”, although Mohtadi also thought that Benbrika was learned. However, Benbrika’s attitudes to Islam and its practice appear to have brought him into some conflict with other Muslims from time to time to the effect that, eventually, he was either excluded from or voluntarily desisted from some community activities: notably, being involved with the Preston mosque. Also, from about 2002, he came to the attention of the Australian Security Intelligence Organisation, commonly known as “ASIO”. This was an organisation to which he often expressed antipathy and with which, he proudly asserted, he would never co‑operate.

Some time prior to the commencement of the indictment period, a number of young men, including some, at least, of his co‑accused, began to associate with Benbrika and each other, and attend religious classes called “dars” classes[15] which he gave. These dars classes, at least as far as the evidence in this case revealed, were unremarkable. They appear to have been concerned with Islamic theology, particularly the central concept of monotheism or “tawheed”. That the classes were of this nature, and that the prisoners or most of them attended the classes from time to time, is not surprising. The intercepted conversations upon which this case was largely based conclusively demonstrated that the prisoners all considered themselves as active, involved and committed Muslims. They saw their commitment to violent jihad in the context of this religious commitment. To them, it was the same commitment. They observed the external requirements of Islam; they prayed, they attended the mosque, and they followed the Muslim practice of continually calling upon Allah in their ordinary verbal discourse. But they also regarded violent jihad as an integral part of their religious obligations — a belief constantly reinforced by Benbrika’s teachings and his ordinary discourse with them.
[15]Sometimes referred to as “daroos” classes.
Outside the dars classes Benbrika associated, informally and socially, with some of the same young men so that, at some indeterminate time, they, with him, formed a group, or, in Arabic, a “jemaah”, of which he was the leader. The jemaah existed, under Benbrika’s direction, for the purpose of engaging in violent jihad. Benbrika regarded the destruction of the “kuffar” — Arabic for “unbelievers” — as an essential aspect of the Islamic religion. The jemaah would achieve this by acts of terrible violence in this country, or perhaps elsewhere. In Australia, such terrorism would be directed towards coercing the Australian Government into withdrawing Australian forces from Iraq, as the presence of such troops in that country was seen as oppressive to Muslims and the Islamic religion.
The jemaah was not proved by the Crown to have had any formal structure as to meetings, records or the like, although, in common with many Islamic organisations, it had a sandooq (literally “a box”) to which the members made financial contributions. Although it appeared that it was intended that such contributions would be made regularly, there was evidence that not all of the members of the jemaah were diligent in making such contributions and some may have made no contributions at all.
There was much dispute during the trial as to what the sandooq was used for, or was intended to be used for, by the jemaah. It was contended on behalf of some of the prisoners that it was purely for charitable or other benign purposes, and this might have been, at least partly, true. However, it is an inescapable inference from the whole of the evidence that it was also either used or intended to be used to finance the activities of the jemaah, including those activities which made it a terrorist organisation. Of particular significance in this regard was the evidence of a conversation in the prisoner Ezzit Raad’s garage on 10 September 2004 when he, Ahmed Raad and Aimen Joud were discussing the necessity to steal “in Allah’s cause” for the purpose of obtaining weapons.[16] This conversation occurred in the context of Ezzit Raad having to store a stolen car which they had acquired and which they intended would be stripped and the parts sold to provide funds for the jemaah. It is unclear as to what total sum of money was involved in the sandooq over the whole indictment period — probably, at most, something in the order of about seven thousand dollars.
[16]Conversation 40: the so-called “garage conversation”.
The sandooq was kept by Ahmed Raad, under Benbrika’s direction. He sought to collect contributions for the sandooq on a regular basis, with mixed success. A number of the intercepted conversations relate to this topic.[17] Various sums were disbursed by Raad although it appears he generally made such disbursements only after receiving approval from Benbrika. Most of the disbursed funds were used for purposes associated with the jemaah, such as hiring cars for trips which were taken and, probably, accommodation and expenses on those trips. The Crown did not prove that any funds from the sandooq were ever used for the purchase of weapons, explosives or the like.
[17]E.g. conversations 126, 341 and 453.
The evidence that the jemaah, led by Benbrika, was engaged in preparing or fostering a terrorist act is largely contained in the 482 intercepted conversations which were before the jury. Some of those conversations were covertly recorded at Benbrika’s home and, occasionally, at other places, and some were recorded from intercepted telephone calls. In the former, Benbrika was almost always a participant, whereas the latter were often between other members of the group and sometimes included unidentified people. The nature and purpose of the organisation emerges from those conversations, and from the written and electronically recorded material found in the possession of some of the prisoners and discussed by them in a number of the conversations.
The term “jihad” is used, particularly by Benbrika, in many of the intercepted conversations. Although it is an Arabic word which translates literally as “struggle”, it has acquired many different meanings in Islam, as Samir Mohtadi explained in his evidence. Many of those meanings are benign. It can mean the promotion of Islam by non‑violent means; the seeking of perfection in one’s own moral life and relationship with Allah; the diligent attention to one’s religious and familial duties; and probably a number of other similar things. However, it also means a violent struggle against the enemies of Islam: the kuffar. This was the meaning which Benbrika attributed to it, and he claimed that it was the only meaning of jihad authorised by the Koran. In a conversation with Sayadi and a man called Belhaj on 19 August 2005[18] he not only asserted that the only meaning of jihad was fighting the kuffar but also that it equated to what the kuffar called “terrorism”. The Crown case was that, whatever meanings jihad might have in Islamic discourse generally, Benbrika and his organisation used the term in the sense he described — as a violent attack on the kuffar to advance the Islamic cause. In other words, the jemaah used the expression “jihad” in almost precisely the way s 100.1 of the Code defines a terrorist act.
[18]Conversation 432.
Whilst, as might be expected, the content of the 482 conversations heard by the jury was diverse, it included a great deal of discussion concerning the necessity for the jemaah to engage in jihad in the Islamic cause. This concept was explained more than once by Benbrika as involving violence towards those, including governments, who were considered to be resisting the expansion of Islam and the adoption of Shariah law (which he referred to as “Allah’s law”) in this country. As he expressed it:
“… I don’t believe in this country. I don’t believe in this law. Which all this believe, no Allah but Allah, no Allah no other law of. This is the meaning of no Allah but Allah. (as punctuated in agreed transcript)
Benbrika referred to Australia as “a land of war”, thus justifying the promotion of a violent Islamic response as being self-defence. He justified fraud and violence against the kuffar because, according to him, both “the money and the blood of the kuffar are lawful”[19].
[19]Conversation 107.
The participants in the intercepted conversations often referred to each other using various English and Arabic expressions as a group might be expected to do. They clearly considered themselves “brothers”. They spoke of “doing something”, a term which the Crown invited the jury to infer from its frequent use, and the context in which it was often used, as being generally a euphemism for the carrying out of a terrorist act. They also sometimes referred to themselves as “mujahideen” — Islamic warriors fighting in the cause of Allah. Benbrika often praised the courage of mujahideen who, he believed, had made great sacrifices for Islam.
There are numerous references in the conversations to the need for the members of the jemaah to be ready to destroy buildings and kill people in the cause of jihad. It was apparently considered by Benbrika that if such actions were carried out the Australian government would withdraw troops from Iraq or would leave the American alliance. The actions of those who engaged in the 11 September 2001 attacks in the United States and the attacks on trains in Madrid and London were discussed in terms of praise and admiration. The heavenly rewards said to be consequent upon dying in the Islamic cause were often spoken of. The necessity for fortitude in the face of opposition and even the inevitability, or at least the probability, of ultimate arrest and imprisonment were discussed as praiseworthy objects for the true “mujahid”, or “person who engages in jihad”, to pursue. On one occasion at least, Benbrika referred to his desire to continue the jemaah in gaol if “the brothers” were arrested. He also expressed admiration for Osama bin Laden in conversations with members of the jemaah whilst criticising a Melbourne imam or cleric who expressed a view of bin Laden which was other than complimentary.
In many of the conversations, reference is made to hard copy and electronic copy versions of jihadi literature, examples of which were eventually seized in various raids carried out by law enforcement agencies on the homes of some of the prisoners. Much of this material originated from Islamic websites which would be commonly described as “extremist” and was circulated to various members of the jemaah. Examples of this material include a collection of materials supporting violent jihad under the title of “Mansura” (which included US military combat training manuals re‑badged as “the Mujahid’s Handbook”), and documents entitled “The Terrorist’s Handbook” and the “White Resistance Manual” which contained recipes for the manufacture of explosives from commonly available materials, and diagrams and instructions for the construction of an electronic circuit that, when coupled with an alarm clock, would detonate an explosive device. One CD seized from the premises of the prisoner Joud on 17 September 2004 contained a document entitled “The Vortex Cookbook” which provided, amongst other things, simple instructions relating to homemade explosive devices
In his evidence, Samir Mohtadi said that, in his experience in the Muslim community in Australia, it is not uncommon for ordinary young Muslims to access websites containing the sort of material found by investigators in the possession of some of the prisoners and/or discussed by them. This included, it would appear, video material depicting the beheading of hostages captured by mujahideen fighters in Muslim countries, some examples of which were put before the Court — edited to the extent necessary to protect the jury from being exposed to the depiction of unspeakable acts of cruelty.
It was put by some Counsel, on behalf of their clients, that the widespread access to such material, particularly among young Muslims as attested to by Mohtadi, excused those prisoners who had had examples of it in their possession. Whilst mere possession of such material might not, of itself, constitute an offence proscribed by Part 5.3 of the Code, it would always depend on surrounding circumstances. Possession of such material takes on a much more sinister complexion when it is realised that those who have it are being encouraged by someone they regard as worthy of emulation and respect to engage in, and are encouraging each other to engage in, acts of terrorism for which such material could provide extremely useful instruction.
It was part of the Crown case that on a number of occasions during the indictment period some, at least, of the jemaah members met or attempted to meet together outside of Melbourne. There was evidence before the jury of trips to Kinglake, Ocean Grove, Eden and a remote location in far western New South Wales. The Crown case was that these meetings or trips were directed towards bonding “the brothers” and allowing them to engage in some sort of training for the purpose of advancing violent jihad.
That Benbrika regarded training as important can be gauged from references in a number of the intercepted conversations. For example, on 21 September 2004 Benbrika expressed the view that training in the use of knives for attacking the kuffar was necessary. He demonstrated to an unidentified male how a knife could be used to attack and kill a person, saying “You have to learn it”.[20]
[20]Conversation 53.
In December 2004 a number of members of the jemaah, including all of the prisoners who are now to be sentenced, and who were then members, went to Kinglake where they were observed by two police officers who were called by a local resident to a group of men acting suspiciously late at night in a remote woodland area. The explanation given to the police for their being there was that the group had been looking for somewhere to pray. There was other evidence which would have permitted the jury to infer that, whether or not the group was in fact intending to pray, it intended to watch jihadi material on a computer while it was at that location.
In February 2005, a trip to Ocean Grove was planned where a number of members of the group were to share a house. In fact, the meeting at Ocean Grove never eventuated because the owner of the rental property refused to permit the 12 males who attended to all stay in the premises. All of the prisoners then members, with the exception of Merhi and Ezzit Raad, were among those who sought to go to Ocean Grove.
In March 2005, Joud, Sayadi and Ahmed Raad went to a property at Louth, a remote location in far western New South Wales, where they camped with some other young men. The evidence before the Court showed that firearms were discharged and a curious device consisting of a battery connected to a number of spark plugs was found after they left. Expert evidence demonstrated that this device could not have been used in any nefarious way, but the jury were invited to infer that it was an attempt, albeit a totally ineffective attempt, to construct some sort of explosive or incendiary device.
Another planned trip to Lakes Entrance did not eventuate, and one to Eden in southern New South Wales which involved a number of young males who were not part of the jemaah appears to have been no more than a fishing trip, even if it had originally been planned as something more — as to which there was no evidence.
In about May 2004, an undercover Victorian police officer who gave evidence under the name SIO 39 infiltrated the group. He pretended to be a Turkish Muslim called Ahmet Sonmez who had had experience with explosives and their use in agriculture, particularly in tree stump removal. He attended a number of dars classes and similar gatherings where he began to befriend members of the jemaah. Whilst it could be concluded that he appeared to have been generally accepted into the group, some members, particularly perhaps Sayadi, were concerned at his eagerness and willingness to accept almost everything suggested to him without argument. Sayadi expressed these concerns to Benbrika who appeared to dismiss them or at least to play them down.
In October 2004, SIO 39 offered to show Benbrika how an explosive could be made from a mixture of ammonium nitrate fertiliser and diesel oil. He obtained a small quantity of these materials and took Benbrika to a remote location in the bush to the north of Melbourne where he detonated a very small quantity of this material for Benbrika’s benefit. The whole episode was video and audio recorded, and was subsequently put before the jury.
Although, in discussions with SIO 39, Benbrika sought information as to how much explosive would be needed to destroy different targets such as buildings, houses et cetera, and where and how such explosive could be obtained, he did not ask SIO 39 to obtain explosive or, for that matter, anything else that might have been useful to the jemaah. Nor is there any evidence that Benbrika told any other members of the group of SIO 39’s demonstration.
Argument was put that a conclusion should be reached that Benbrika was not serious about wishing to learn about explosives as, if he had been, he would have expressed greater interest than he did in SIO 39’s demonstration and would have requested him to procure explosives for the group. Against this, however, must be weighed the fact that Benbrika was well aware, at all times during the indictment period, that ASIO was very interested in him and probably also in those around him. As well, other members of the group, notably Sayadi, had expressed doubts as to SIO 39’s bona fides as far as his expression of support for the organisation was concerned. Benbrika’s apparent nonchalance at SIO 39’s demonstration and his failure to take up offers to procure explosives can be equally interpreted as caution on his part.
If Benbrika was cautious in his dealings with SIO 39, this was in complete contrast to his open encouragement of the members of the group to engage in terrorism — almost always in conversations covertly recorded within his own home. For example, on 24 September 2004 he exhorted Merhi to not just kill a few people but to “do a big thing”, to which Merhi replied, “like Spain” — an obvious reference to the terrorist attacks on the Madrid train system which had occurred on 11 March that year. In the same conversation, Benbrika referred to killing a thousand people so as to coerce the government into withdrawing Australian troops from Muslim countries. In a later recorded conversation with Atik, Benbrika referred to damaging buildings and blasting things.
The only evidence before the Court that the Benbrika organisation had selected a target or targets for a terrorist act came from the only member of the group to turn Queen’s evidence, Izzydeen Atik. He said that on one occasion in late August 2005 he travelled with Benbrika to a motor car accessory shop in the Campbellfield area to obtain a set of decorative “mag” wheels for Benbrika’s wife’s Toyota van. He was able to obtain such wheels at no cost because of a fraudulent arrangement he had with someone connected with the business, Buy Direct Tyres. The arrangement involved credit card fraud, an activity in which Atik was highly skilled. He said that in the course of that journey Benbrika told him that the group had intended to carry out a terrorist attack at the Melbourne Cricket Ground during the then forthcoming Australian Football League Grand Final but that the plan had been postponed for security reasons and because of funding difficulties. He said that Benbrika had also mentioned the NAB Cup and Crown Casino on Grand Prix weekend as being possible targets.
But Atik was a liar, a cheat and a fraudster of significant accomplishment. He specialised in credit card fraud but also defrauded the social security system to such an extent that he was able to receive a disability pension for a psychiatric illness whilst living in a luxury townhouse, driving a motor vehicle of commensurate standard and employing a butler. For one period, Centrelink even paid his brother a carer’s pension to look after him. All of this was provided to him at the same time as he was earning thousands of dollars every month in a systematic credit card fraud which involved the use of other peoples’ credit card numbers obtained, for payment, from taxi drivers.
The jury in this trial heard all of this and more about Atik. In particular it heard evidence from a police officer that he had interviewed Atik on 30 November 2005 at HM Prison Barwon. That officer said that in that interview Atik had denied any knowledge that the group was planning a terrorist attack and that he would have gone straight to the police had he known of any such thing. He first told the police of the alleged conversation in the motor vehicle with Benbrika in mid-2007 after he had decided to plead guilty and was concerned to reduce any sentence which might be imposed upon him as much as possible.

The jury were warned as to the danger of relying on Atik’s evidence not only because he was an accomplice who had turned Queen’s evidence but also because of his significant deficiencies as a witness. It is unlikely that the jury accepted him as a witness of truth. Certainly, the Court will not now accept him as such. Indeed, having now seen and heard Atik give evidence and seen and heard him cross‑examined on two occasions[21] I am satisfied that much of the material he provided to the police, before he was sentenced, including his account of the targets conversation with Benbrika was untrue and designed purely to serve his own ends. I am also now satisfied that his account of the psychiatric condition he relied upon in mitigation of his sentence was at least grossly exaggerated and probably totally feigned despite its having been accepted by a number of psychiatrists and psychologists over a considerable period and its not having been contested by the Crown.
[21]Once on a preliminary enquiry on the voir dire on the statements he provided to police in July 2007 before he was sentenced and once at trial.
For sentencing purposes, no account will be taken against the prisoners of any of Atik’s evidence. Specifically, the prisoners will be sentenced on the basis that they were members of a terrorist organisation which, although it had encouraged them to perform a terrorist act or acts in the future and had taken steps towards that end, no target or targets had been selected and no explosives or other material had been obtained to carry out such an attack.
To be guilty of the offence of membership it was not necessary that the terrorist organisation to which they belonged had gone as far as selecting a particular target. The organisation became a terrorist organisation in the terms of the indictment in this case once it engaged in any activity which could be characterised as fostering or preparing the doing of a terrorist act. An organisation may become a proscribed terrorist organisation long before it selects a target, obtains bomb-making or similar materials, or plans an attack.
It is an element of the offence created by s 102.3 of the Code that for a person to be convicted of being a member of a terrorist organisation he must know that the organisation is a terrorist organisation. In the way this case was put by the Crown, these prisoners must have known that the organisation was fostering and/or preparing the doing of a terrorist act, that is to say encouraging its members (and perhaps others) to engage in a terrorist act and/or taking some step, however indirect, towards the doing of that act. Submissions by some counsel to the effect that the highest the case could be put against their clients was that the organisation only ever fostered the performance of a terrorist act and took no steps in preparation, ignore the evidence that the organisation either provided or supplied the means of obtaining bomb making and similar instruction material to its members and provided instruction for terrorist activity. It provided or supplied the means of obtaining jihadi material such as videos of hostages being beheaded which had the effect, or could have had the effect, of desensitising these young men to the brutal and barbaric means by which they were expected to carry out executions of other human beings — as mujahideen faithful to the Islamic cause as interpreted by Benbrika. All of these activities in which the organisation engaged are able to be characterised as “directly or indirectly” preparing the doing of a terrorist act within the definition of terrorist organisation in s 102.1 of the Code.
Had Atik’s evidence as to the proposed targets been accepted, and had knowledge of those targets been proved against the prisoners other than Benbrika, their criminality in belonging to the terrorist organisation would have been commensurately greater than has been proved without Atik’s evidence. They will all be sentenced on the basis that they knew the jemaah led by Benbrika encouraged and/or took some act towards the commission of a terrorist act some time in the future on an as yet undetermined target.
This is not to say that their criminality is to be regarded as trivial. The existence of the jemaah as a terrorist organisation constituted a significant threat that a terrorist act would be or would have, by now, been committed here in Melbourne. The absence of an imminent, let alone an actual, terrorist attack does not mean that condign punishment is not warranted in this case. As Price J said in Lodhi, with respect to a different offence under the Code:
“It does not follow that as long as the preparatory acts relied upon to constitute the offences are in their infancy criminal culpability must necessarily be low.”[22]
[22]Lodhi v The Queen [2006] NSWCCA 101 at [229].
Whilst the criminality of each of the prisoners will be considered with regard to his own circumstances and a sentence imposed accordingly, the general approach will be that the membership of this terrorist organisation must be regarded as a serious crime although not as serious as it might have been regarded had Atik’s evidence been accepted, leading to a finding that preparation for a terrorist act had advanced further than it actually had; namely, as far as the selection of a target or possible target.
In reaching an appropriate sentence for each of the prisoners, their own culpability and mitigating factors peculiar to each of them will be taken into account individually. There are some matters, however, which are common to all of them and can be dealt with before proceeding to consider the cases of each of them. One of the most obvious relates to the conditions under which they will serve their sentences.
Since they were arrested in November 2005, all of these men have been in custody, classified by prison authorities as requiring incarceration in a maximum security facility. Until the Court intervened in March last year to ensure that they were able to obtain a fair trial, they were held at HM Prison Barwon in the Acacia Unit. A description of the conditions of their confinement and travel during this period is set out in the Court’s ruling given on 20 March 2008[23] and need not be repeated here.
[23]R v Benbrika and ors (Ruling No. 20) (2008) 18 VR 410.
An affidavit of Brendan Francis Money attesting to the principles of prison classification and placement within the Victorian system is before the Court. Whilst that evidence does not permit any confident prediction as to how these men will be classified or where they will be placed in the Victorian prison system, after they are sentenced it would seem highly improbable that they will experience prison conditions less harsh as sentenced prisoners than they experienced when they were on remand. This probability will be appropriately taken into account in fixing all of their sentences, as will the fact that they have already endured those conditions for the first two and a half years of their custody whilst on remand.
Secondly, all of the prisoners co‑operated with the Crown and with each other in the way the trial was conducted. They also conducted themselves in an exemplary manner in the court room. Their co‑operation led to considerable savings in public expenditure by permitting the trial to be concluded in as short a time as reasonably possible. They will all receive consideration for this co‑operation in their sentences.

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[2009] VSC 375

2 September 2009