R v Khalid

[2017] NSWSC 1365

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365

Hearing dates:

3, 4, 5 and 6 October 2017

Date of orders:

03 November 2017

Decision date:

03 November 2017

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

See [306]-[310]

Catchwords:

CRIMINAL LAW – Offences – Sentence – Conspiracy to do acts in preparation for a terrorist act or acts – Intentionally making documents connected with the preparation for a terrorist act knowing of that connection – Possessing firearms – Serious offending – Offending underpinned by an adherence to extremist ideology – Necessity to impose a sentence which would denounce the offending and protect the community - Necessity for general deterrence

 

CRIMINAL LAW – Offences – Sentence – Conspiracy to do acts in preparation for a terrorist act or acts – Intentionally making documents connected with the preparation for a terrorist act knowing of that connection – Assessing prospects of rehabilitation in the absence of sworn evidence renouncing previously held extremist beliefs – Necessity to adopt a cautious approach to statements made to third parties which are not the subject of sworn evidence and thus not subject to cross-examination

  CRIMINAL LAW – Offences – Sentence – Conspiracy to do acts in preparation for a terrorist act or acts – Offender 14 years of age at the time of the offending – Serious offending involving acquisition of firearms as part of the conspiracy – Adult like behaviour – Evidence of immaturity on the part of the offender – 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 (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Family Law Act 1975 (Cth)
Firearms Act 1996 (NSW)
Young Offenders Act 1997 (NSW)

Cases Cited:

Azzopardi v R (2011) 35 VR 43; [2011] VSCA 372
Benbrika v R (2010) 29 VR 593; [2010] VSCA 281
BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
Cameron v R (2002) 209 CLR 339; [2001] HCA 6
Cappis v R [2015] NSWCCA 138
DPP (Cth) v Pratten (No. 2) [2017] NSWCCA 42
DPP (Cth) v Besim [2017] VSCA 158
DPP (Cth) v Fattal [2013] VSCA 276
DPP (Cth) v MHK [2017] VSCA 157
Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303
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 (2006) 199 FLR 303; [2006] NSWCCA 121
Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
R v Barot [2007] EWCA Crim 1119
R v Dib [2013] NSWCCA 117
R v Elomar and ors (2010) 264 ALR 759; [2010] NSWSC 10
R v Fattal [2011] VSC 681
R v Fowler [2003] NSWCCA 321
R v Ghazzawy [2017] NSWSC 474
R v Harrington (2016) 11 ACTR 215; [2016] ACTCA 10
R v Kahar [2016] 1 WLR 3156; [2016] EWCA Crim 568
R v Khazaal [2009] NSWSC 1015
R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691
R v NP [2003] NSWCCA 195
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v PB [2008] NSWCCA 109
R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
R v Rahman; R v Mohammed [2008] 4 All ER 661; [2008] EWCA Crim 1465
R v Sharrouf [2009] NSWSC 1002
R v Thomas (2016) 315 FLR 31; [2016] VSCA 237
R v Thomson; R v Houlten (2009) 49 NSWLR 383; [2009] NSWCCA 309
R v Touma [2008] NSWSC 1475
R v Tran (2002) 4 VR 248; [2002] VSCA 52
R v Zerafa [2013] NSWCCA 222
Tyler v R; Chalmers v R (2007) 173 A Crim R 458; [2007] NSWCCA 247
Wong v R (2001) 207 CLR 584; [2001] HCA 64

Category:

Principal judgment

Parties:

Regina – Crown
Sulayman Khalid – Offender
Jibryl Almaouie – Offender
IM – Offender
Mohamed Rashad Al Maouie – Offender
Farhad Said - Offender

Representation:

Counsel:
N Robinson QC and M England – Crown
R van de Wiel QC – Sulayman Khalid
I D Temby QC and G Scragg – Jibryl Almaouie
G R James QC – IM
M Ramage QC – Mohamed Al Maouie
M Pickin – Farhad Said

  Solicitors:
Commonwealth Director of Public Prosecutions – Crown
Zali Burrows Lawyers – Sulayman Khalid
Kings Law Group – Jibryl Almaouie
Lawyers Corp – IM
Lawyers Corp – Mohamed Al Maouie
Lawyers Corp – Farhad Said

File Number(s):

2014/376821, 2015/363150, 2015/362628, 2015/376727, 2015/362992, 2016/161972

Publication restriction:

There is to be no publication of the name of the offender referred to as IM.

Judgment

THE OFFENCES

The offenders Sulayman Khalid, Jibryl Almaouie and IM

1. Sulayman Khalid (“Khalid”), Jibryl Almaouie (“Jibryl”) and a third offender to whom I shall refer as “IM”, have each pleaded guilty to an indictment in the following terms:

Between about 7 November 2014 and 18 December 2014, at Sydney in the State of New South Wales, did conspire with each other and Mohamed Al Maouie, Ibrahim Ghazzawy, Farhad Said and diverse others to do acts in preparation for a terrorist act (or acts).

2. That offence is contrary to ss 11.5 and 101.6(1) of the Criminal Code 1995 (Cth) (“the Code”) and carries a maximum penalty of life imprisonment. It should be noted at the outset that the Crown did not submit that a life sentence was warranted in the case of any of these three offenders.

3. In addition, Jibryl has pleaded guilty to a separate indictment containing the following counts:

1.   On or about 18 December 2014, at Condell Park in the State of New South Wales, did possess a firearm, namely, .303 British calibre ENFIELD model 4, repeating bolt action riffle, serial number 59L0792, not being authorised to do so by a licence or permit (count 1).

2.   On or about 18 December 2014, at Condell Park in the State of New South Wales, did possess a shortened firearm, namely, a shortened 12 gauge COOEY model 840 break open action single shot, shotgun, serial number 72538, that was not a pistol, without being authorised to do so by a permit (count 2).

3.   On or about 18 December 2014, at Condell Park in the State of New South Wales, did possess a firearm that was not registered, namely, .303 British Calibre ENFIELD model 4, repeating bolt action riffle, serial number 59L0792 (count 3).

4.   On or about 18 December 2014, at Condell Park in the State of New South Wales, did possess a firearm that was not registered, namely, a shortened 12 gauge COOEY model 840 break open action single shot shotgun, serial number 72538 (count 4).

4. Each of counts 1-4 are offences contrary to the Firearms Act 1996 (NSW) (“the FA”) and the respective maximum penalties, are as follows:

1. count 1 (FA s. 7A(1) – maximum penalty of imprisonment for 5 years;

2. count 2 (FA s. 62(1)(b)) – maximum penalty of imprisonment for 14 years;

3. counts 3 and 4 (FA s. 36(1)) – maximum penalty of imprisonment for 5 years.

5. At Jibryl’s request, I have also taken into account the following matters contained in a Form 1 all of which were committed on 19 December 2014:

1. possess unauthorised firearm, namely a 12 gauge LAMBER break open action double barrel under and over shotgun, not being authorised to do so by a licence or permit, contrary to s. 7A(1) of the FA;

2. possess unregistered firearm, namely a 12 gauge LAMBER break open action double barrel under and over shotgun, contrary to s. 36(1) of the FA;

3. possess ammunition for a firearm without holding a licence or permit for a firearm which takes that ammunition and without being authorised to possess that ammunition by licence or permit, contrary to s. 65(3) of the FA; and

4. not keeping a firearm safely, contrary to s. 39 of the FA.

6. Jibryl’s commission of the various offences contrary to the FA are part of the conspiracy to which he has pleaded guilty. In these circumstances, the Crown and senior counsel for Jibryl agreed that any sentences imposed in respect of those offences should be wholly concurrent with any sentence imposed in respect of the conspiracy. There is some difficulty in giving effect to this agreed position, arising from the fact that Jibryl was taken into custody in respect of the charges contrary to the FA on 23 December 2014. He has remained in custody since that time and accordingly, any sentences imposed for those offences can, and should, be backdated to commence on that day. However, he was not charged with the conspiracy offence until 10 December 2015, almost 12 months later. It is not possible to backdate the sentence for the conspiracy to commence on 23 December 2014 because Jibryl was not, at that time, charged with that offence.

7. Following the conclusion of the sentence proceedings, the Crown filed written submissions in relation to this issue and suggested that the result which the parties agreed was appropriate could be achieved by:

1. firstly imposing sentences for the offences contrary to the FA;

2. then imposing the sentence for the conspiracy and in doing so, making an allowance for the sentences imposed in (i) and imposing a total aggregate sentence.

8. No submissions were received on behalf of Jibryl which took issue with that approach. I have adopted the Crown’s suggestion of imposing sentences for the offences contrary to the FA first. Whilst those sentences cannot, in the circumstances, be made wholly concurrent with the sentence to be imposed in respect of the conspiracy, I have endeavoured to structure the sentences in a way which imposes a total sentence giving effect to what the parties agree is appropriate.

The offenders Mohamed Al Maouie and Farhad Said

9. Mohamed Rashad Al Maouie (“Mohamed”) and Farhad Said (“Said”) have each pleaded guilty to separate indictments in the following terms:

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

10. That offence is contrary to s. 101.5(1) of the Code and carries a maximum penalty of 15 years imprisonment.

THE SENTENCE PROCEEDINGS

11. I heard submissions on behalf of the Crown and each of the offenders on 3, 4, 5 and 6 October 2017, in the course of which the Crown tendered a separate statement of facts in respect of each offender. Some parts of the facts tendered against one offender were common to those tendered against some others. Rather than unnecessarily repeat parts of the facts, I have indicated where this principally arises.

12. It should also be noted that although the facts were tendered by consent in each case, some specific issues were taken on behalf of Jibryl as to discreet parts of them. I have identified where those issues arose and have expressed by conclusions in relation to them.

FEDERAL SENTENCING PROVISIONS

13. I am required to sentence each of the offenders in accordance with Part 1B of the Crimes Act 1914 (Cth) (“the Act”)[1]. There are a number of provisions within that Part to which I should make reference.

    1. In the case of the offences contrary to the Firearms Act 1996 (NSW) to which Jibryl has pleaded guilty, sentences must be imposed having regard to the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW)

14. Section 16A of the Act provides (inter alia) as follows:

16A Matters to which court to have regard when passing sentence etc.--federal offences

(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(a) the nature and circumstances of the offence;

(b) other offences (if any) that are required or permitted to be taken into account;

(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character--that course of conduct;

(d) the personal circumstances of any victim of the offence;

(e) any injury, loss or damage resulting from the offence;

(ea) if an individual who is a victim of the offence has suffered harm as a result of the offence--any victim impact statement for the victim;

(f) the degree to which the person has shown contrition for the offence:

(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii) in any other manner;

(fa) the extent to which the person has failed to comply with:

(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976 ; or

(ii) any obligation under a law of the Commonwealth; or

(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903 ;

about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence;

(g) if the person has pleaded guilty to the charge in respect of the offence--that fact;

(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

(j) the deterrent effect that any sentence or order under consideration may have on the person;

(ja) the deterrent effect that any sentence or order under consideration may have on other persons;

(k) the need to ensure that the person is adequately punished for the offence;

(m) the character, antecedents, age, means and physical or mental condition of the person;

(n) the prospect of rehabilitation of the person;

(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.

...

15. Under s. 17A, I may only impose a term of imprisonment if I am satisfied that this is the only appropriate sentence. I am satisfied that this is the case in respect of each offender.

16. Section 19AG applies to each of the federal offences to which the respective offenders have pleaded guilty [2] . It requires that I fix a single non-parole period for each of the federal offences which is at least three quarters of the head sentence which is imposed.

    2. Save for the offences contrary to the Firearms Act 1996 (NSW) to which Jibryl has pleaded guilty

17. In accordance with s. 16F of the Act, I must explain the sentence imposed upon each offender. I must also warn each offender, pursuant to s. 105C of the Code, that an application may be made for a continuing detention order, requiring the offender to be detained after the completion of any such sentence.

SENTENCING PROVISIONS SPECIFIC TO IM

18. As discussed further below, IM is currently 17 years of age and was aged 14 at the time of his offending. He is therefore a “child” within the meaning of s. 20C(1) of the Act which is in the following terms[3] :

20C Offences by children and young persons

(1) A child or young person who, in a State or Territory, is charged with or convicted of an offence against a law of the Commonwealth may be tried, punished or otherwise dealt with as if the offence were an offence against a law of the State or Territory.

3. For that purpose a child is defined as a person who is under the age of 18 years: Crimes Act 1914 (Cth) s. 3; Family Law Act 1975 (Cth) s. 4

19. The effect of s. 20C(1) of the Act is to allow me to sentence IM having regard to those options for which provision is made in the Children (Criminal Proceedings) Act 1987 (NSW) (“the CCPA”) and the Young Offenders Act 1997 (NSW). However as previously noted, I have come to the view that a term of imprisonment is the only appropriate sentence.

20. Section 6 of the CCPA sets out a number of principles which must be taken into account when exercising functions under that Act. Senior counsel for IM urged that I have regard to those matters. To the extent that they are relevant to IM, I have done so, although they are essentially a reflection of common law principles governing the sentencing of young offenders which I have discussed further below.

21. Pursuant to s. 19 of the CCPA, I may make an order directing that that IM serve any term of imprisonment as a juvenile offender beyond the age of 18 years and up to the age of 21 years. To make that order I must be satisfied that there are special circumstances within the meaning of s. 19(4) of the CCPA. Senior counsel for IM submitted that I would be satisfied that there are special circumstances within the meaning of s. 19(4)(b) and/or (c). The Crown made no submissions to the contrary. I am satisfied on the evidence in IM’s case, which I have discussed more fully below, that if he were committed to a correctional centre before turning 21 years of age there would be an unacceptable risk of him suffering physical or psychological harm. I am therefore satisfied that there are special circumstances within the meaning of s. 19(4)(c) of the CCPA allowing me to order that he serve any sentence of imprisonment as a juvenile offender after he has attained the age of 18 years, and up to attaining the age of 21 years. I will give effect to that finding in the orders that I make in IM’s case.

General sentencing principles

22. There are obviously individual considerations which impact upon the cases of the respective offenders, both objectively and subjectively. Equally, there are also a number of principles which are of general application to sentencing for offences of this nature. Those principles, which I have applied in determining an appropriate sentence in the case of each offender, may be summarised as follows.

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[4] . Subjective circumstances and mitigating factors, including considerations of rehabilitation, are to be given less weight[5] .

    4. R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691 at [92] (“Lodhi sentence”); Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360 at [274] (“Lodhi appeal”); R v Khazaal [2009] NSWSC 1015 at [47]

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

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[6] . 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[7] . 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[8] .

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

    7. 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]

    8. 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]

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

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

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

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

4. the extent to which the offender has been responsible, by whatever means, for indoctrinating or attempting to indoctrinate others, and the vulnerability or otherwise of the target(s) of the indoctrination, be it actual or intended[9] .

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

26. In light of the charge to which Mohamed and Said have pleaded guilty, the following additional factors are relevant:

1. the volume, detail and accuracy of the information contained in any document(s);

2. the nature and extent of the harm capable of being caused by the act(s) described within the document(s);

3. the nature and extent of the publication of the document(s); and

4. the state of mind of the offender [10] .

   10. Khazaal at [19]–[21]

27. I turn to consider the cases of each individual offender.

SULAYMAN Khalid

28. The following evidence was tendered in Khalid’s sentence proceedings [11] :

    11. (i), (ii) and (iii) were tendered by the Crown and the balance tendered on behalf of Khalid

1. statement of facts [12] ;

   12. Exh. SK1

2. criminal history [13] ;

   13. Exh. SK2

3. an affidavit of Glen Piazza, the Manager of Security at the High Risk Management Centre, Goulburn Correctional Complex [14] ;

   14. Exh. SK3

4. literature identified by the witness Abdul Saleh [15] ;

   15. Exh. SK4

5. copies of photographs identified by Mr Saleh [16] ;

   16. Exh. SK5 – This exhibit along with SK6 related to charges brought against the witness which were subsequently dismissed. That material went to matters specific to the witness and is of little or no relevance to the determination of sentence against Khalid

6. court attendance notices and a statement of facts pertaining to Mr Saleh [17] ;

   17. Exh. SK6

7. excerpts of footage of Khalid’s appearance on the “Insight” program [18] ;

   18. Exh. SK7 (as to which see para. 6 of the Statement of Facts under the heading “Ideology”)

8. transcript of the footage in (vii) above [19] ;

   19. Exh. SK8

9. a disc containing footage published by Khalid on “YouTube” [20] ;

   20. Exh. SK9

10. a transcript of one part of the footage in (ix) above [21] ;

    21. Exh. SK10.

11. two volumes of transcripts of intercepted telephone conversations and text messages [22] ;

    22. Exh. SK11

12. a list of prison lock-ins [23] ;

    23. Exh. SK12

13. extracts from the Qu’ran [24] ;

    24. Exh. SK13

14. a report of Dr Nielssen, psychiatrist [25] ;

    25. Exh. SK14

15. an Australian Federal Police phone extract [26] ;

16. a transcript of an interview between Khalid and Neil Mercer [27] ;

17. a statement of David Victor [28] ; and

18. a transcript of a telephone intercept of 21 November 2014 [29] .

THE EVIDENCE TENDERED BY THE CROWN

26. Exh. SK15

27. Exh. SK16

28. Exh. SK17

29. Exh. SK18

The facts

29. The statement of facts tendered by the Crown against Khalid was in the following terms:

BACKGROUND

A.   Ideology

1.   Sulayman Khalid (“the offender”), “IM” and Jibryl Almaouie (together, “the conspirators”) adhere to the religious ideology of violent jihad. Specifically, they adhere to the religious ideology of Wahhabi-Salafism. This is the ideology that inspires ISIS (the Islamic State of Iraq and Syria), Al-Qaeda and like‑minded groups and their supporters. [30]

30.    The last “s” of “ISIS” comes from the Arabic word “al-Sham”, meaning the Levant, Syria or occasionally Damascus, depending on the circumstances. ISIS is also often referred to simply as Islamic State

2.   The cause that was to be advanced in the proposed terrorist act or acts was that of violent jihad. The essential feature of the cause, which the conspirators believed to be a religious obligation, was to engage in violence to advance what they considered to be the interests of Islam. They believed Islam to be under attack from various Western countries, in Syria and the Middle East, and also in Australia. They also believed that those who died pursuing violent jihad were martyrs, who would be rewarded in paradise.

3.   During the conspiracy period (that is, between about 7 November 2014 and 18 December 2014), each of the conspirators was committed to Islam and they often spoke about it and included it in their daily lives. Whilst the word “jihad” is used and understood amongst the wider Muslim community to mean “spiritual struggle”, the conspirators used the term (and possessed material that used the term) to mean “violent jihad”.

4.   During the period of the conspiracy and for some time before, the offender was active in seeking to advance Islam. He had actively proselytized for Islam in the street and posted videos of those activities online. His activity was known to his friends, including (amongst others) “IM”, who had a video on his phone of the offender preaching Islam in the street.

5.   The offender had publicly displayed his support for the violent jihad espoused by ISIS. One way he did so was by obtaining and wearing clothing with badges and adornments of ISIS. When police executed a search warrant at his premises on 18 December 2014, the items they found included clothing bearing identifiable ISIS markings and a series of printed A4 sheets which, when placed together, formed an almost complete ISIS banner.

6.   Furthermore, the offender had appeared on the “Insight Program” (which was televised nationally) on 12 August 2014 [31] , and supported the violent jihadi ideology of ISIS including by wearing the ISIS flag on his sleeve. His comments on that program included the following:

31. The Crown tendered a Disc containing excerpts of footage from the program and an accompanying transcript (Exhs. SK7 and SK8 respectively). I have dealt with this evidence further below

“Look, ISIS, they - they - they do not want to bring anything but justice, ISIS. They don’t wanna bring anything but justice. ...

Well, the Australian government is bringing - they’re bringing harm to themself and they’re bringing harm to the Australian citizens here - - - ... Well, they’re bringing physical - you know, like, whatever - anything. If they get - If they’re - if they’re gunna leave their troops in Iraq, for example - ... if they’re not gunna do anything about this, what’s happening to the Muslims, then something’s gunna happen here.”

7.   The offender had also made a YouTube video [32] which he had posted on the internet, titled “A Direct Message to the Secret Services, A call to Taweed, Millatu Ibrahim”. [33] In that video, which features an ISIS emblem, the offender makes a thinly veiled threat against various Western security services, including those of Australia. The “message” the offender delivered included the following:

32. The Crown tendered a Disc containing this (and other) footage, and an accompanying transcript of that part of the footage upon which it specifically relied. (Exhs. SK9 and SK10 respectively). I have dealt with this evidence further below

33.    “Taweed” means the oneness of God

“To all of the Muslims out there in the world, and um, I would like to forward the message, um to the secret services of our time, MI5, MI6, MI7, FBI, CIA, ASIO, um all of, the rest of the secret services, in each and every one of the countries. ...

Accept Islam as your salvation. Because, I swear to you, I swear to you, that a day will come when it will be too late. ...

You will regret, the day, you will regret the day that when Allah, he orders his angels to drag you on your faces to the pits of hell fire. This is, this is the day you will regret it. ...

In Islam, we cannot obey man-made law. We cannot obey a man that’s not ruling with the Sharia. ...

And no matter, how many, no matter how many Muslims is in prison, no matter how many Muslims are killed, no matter how many Muslims you rape, no matter how many Muslims is bombed, on top of the skies, is bombed from the skies, no matter how many things yous do to the Muslims, Islam, at the end, will become victorious. ...

Us Muslims, we know that you know the history of Islam. Us Muslims, we know that yous know that Islam is spread by the swords. That is Islam is spread by the sword. Yes or no. It did. It did spread by the swords. How can a religion not spread without using the swords? How can the religion spread without using the swords? ...

Yous come to our lands and yous bomb and rape and kill. And butcher our, and butcher the Muslims. When yous take over, and then yous calls the Muslims terrorists. Think about it, use your heads. Use your heads. Who’s the terrorists? What is the meaning of terrorism? Who are the terrorists? Are the terrorists, are the terrorists the ones that want to establish the, the, the, the law of God and get man out of this democracy, get man out of the, the chains and shackles of the democracy, out of the man-made law system, out of the injust system. ...

The Islamic State. And if yous look, if you actually just look, at the Islamic law and the Sharia law, then yous will find, yous will find there is wisdom behind it. ...

But yous will not be able to distinguish the light of Allah and those secret services, I will leave you with one thing and I will give you one more message. ...

Its either you will become a Muslim, and you will believe in Allah, or you will die by the sword. ... [indistinguishable] Islam will be victorious. Victory is for Islam. Victory is for the Muslims.”

8.   The “Direct Message to the Secret Services” video was one of 25 published online by the offender between 25 May 2013 and 7 December 2014, the majority of which show the offender preaching and discussing Islam.

9.   The offender was also the conspirator who sent religious advice and sayings to the other conspirators. For example, on 26 November 2014, the offender a message to a number of recipients that said “TIME TO WAKE UP AND TASTE THE SWEETNESS OF IMAN [34] ”, which he signed off as “Abu Bakr”.

34. “Iman” means “faith”

10.   The offender promoted violent jihad as the leader of the group during many telephone communications with “IM”, during which they spoke about martyrdom and committing some form of terrorist act. He also had coded telephone conversations with Jibryl Almaouie, during which they referred to ammunition.

B.   Outline of the conspiracy

11.   The offender and the other conspirators agreed with each other and Mohamed Al Maouie, Ibrahim Ghazzawy and Farhad Said (all of whom, with others, were under investigation by the Joint Counter Terrorism Team from May 2014) to do acts in preparation for, or planning of, a terrorist act or acts. The terrorist act was to involve firearms and was to be a religiously inspired act of terrorism, namely violent jihad. The nature of the act or acts and the proposed target or targets were unresolved, but included the killing of a member or members of either the New South Wales Police Force or Australian Federal Police and/or attacks upon government buildings. 

12.   The conspiracy coalesced between about 2 November 2014 and 18 December 2014. The conspirators began planning the attacks outlined in documents located at the offender’s house on 18 December 2014.

13.   The overt acts of the offender and his co-conspirators in furtherance of the conspiracy are summarised in the Table of Overt Acts, annexed at “B”. Put briefly, the conspiracy involved, amongst other actions, the following:

a)   Considering, orally and in writing, various possible forms of terrorist act including ways to carry out the act or acts (including using firearms in a direct attack or using guerrilla tactics);

b)   Considering possible targets for a terrorist act or acts, such as individual members of the New South Wales Police Force or the Australian Federal Police, and the Australian Federal Police headquarters building;

c)   Sourcing, obtaining and retaining firearms and ammunition;

d)   Numerous telephone communications (by text message and by telephone conversations) about impending martyrdom, training for a domestic terrorist attack, planning a domestic terrorist attack and firearms and ammunition; and

e)   Meeting at the offender’s premises at 13 Berry St Regents Park during the evening and early morning of 17 and 18 December 2014 for the purpose of considering documents the conspirators had made in preparation for a terrorist act.

14.   Some of the code words used by the conspirators, including the offender, were as follows:

a)   Banana      =   Firearms

b)   Motorbikes      =   Firearms

c)   Party         =   Meeting/terrorist attack

d)   Wedding date      =   Date of (terrorist) attack

e)   China         =   Overseas, fighting with ISIS

f)   Wombat      =   Khalid’s residence

g)   Over Pools      =   Overseas

h)   Tony         =   Ghazzawy

As well as being used during the conspirators’ and others’ coded conversations, some of these words were located on terrorist planning documents found at the offender’s home on 18 December 2014 (which are described in detail below).

15.   The content of the planning documents, together with Jibryl Almaouie’s possession of firearms and ammunition and “IM”’s sourcing of four firearms (each of which is addressed in further detail below), confirm that the terrorist act or acts in respect to which the conspirators engaged in acts of preparation and planning was an act or were acts of terrorism by using firearms to kill those targeted by the act or acts. The conspirators’ intention was that the terrorist act or acts would intimidate the Australian Federal Government and State governments, or the public.

C.   Roles of conspirators

(i)   The offender

16.   The offender was the leader of the group. He was a self-appointed preacher and used the name “Abu Bakr”. He gave advice, including religious advice, to other conspirators over the period of the conspiracy. He expressed strong views about the correctness of extremist ideology in a number of intercepted conversations. He also organised meetings at his premises that were attended by other members of the group.

17.   The offender, who was 20 years old at the time of the conspiracy (having turned 20 on 11 November 2014, four days into the conspiracy period) and is now 22 years old, had a large number of intercepted telephone communications with the much younger “IM”, who was 14 years old at the time of the conspiracy.

18.   The offender’s telephone communications with “IM” indicate that the offender and “IM” had a strong desire to engage in a terrorist act, including an act of martyrdom. In a number of telephone communications between him and “IM”, the offender urged “IM” not to go to Syria but to stay and pursue a terrorist act in Australia instead.

19.   The offender was careful to use code words and at various times made it clear in intercepted conversations that he would not speak about certain matters on the phone, believed his phone calls to be under surveillance and that he was under physical surveillance by police.

20.   The offender called members to attend at his premises and issued instructions to group members. He also retained the planning documents at his premises.

(ii)   “IM”

21.   “IM” was born on 12 September 2000 and is now 17 years old. At the commencement of the conspiracy, he was 14 years 11 weeks old. “IM” had a high level in the group.

22.   “IM” was a strong adherent of the jihadi ideology and had a significant amount of extremist material on his telephone. He often expressed a strong desire to engage in a terrorist act and expressed an urgent desire for martyrdom. A number of the conversations he had with the offender involved the offender urging “IM” not to go to Syria but to stay and pursue a terrorist act here in Australia.

23.   “IM” was involved in a significant number of intercepted SMS and telephone conversations with the offender. In addition to those communications described above, “IM” also asked when a terrorist act or acts would be committed here in Australia in his telephone communications with the offender. “IM” often spoke about the desire for weapons, in respect of which he and the offender used code words such as “bananas”, and he said that if he was not able to train for any terrorist act he would not take part. “IM” also spoke to the offender in code about places and events.

24.   As part of “IM”’s role in the conspiracy, he sourced four firearms at his uncle’s house and sent photographs of himself posing with the firearms to the offender. [35] “IM” sourced these firearms so the group had information on another possible source of firearms, by taking them without the uncle’s knowledge or consent. “IM” located the firearms and ascertained the nature of each, and confirmed his uncle’s possession of them to the offender.

35.    Photographs found on “IM”’s phone depicting him posing with firearms are Exh. IM4

(iii)   Jibryl Almaouie

25.   Jibryl Almaouie was born on 9 October 1993 and is now 23 years old. At the commencement of the conspiracy, he was 21 years old, having turned 21 on 9 October 2014.

26.   Jibryl was involved in intercepted telephone conversations with the offender. He was an adherent of the violent jihadi ideology. He had coded telephone conversations with the offender about firearms, ammunition and martyrdom.

27.   Jibryl was high up in the group. He was in possession of three functional firearms, ammunition including 12 gauge shotgun shells, jihadi documents, an SAS survival guide and a black flag with Arabic writing when his premises were searched by police on 18 December 2014. The firearms were a bolt action rifle with a loaded magazine attached, a double barrel shotgun and a shortened “over and under” shotgun. [36]

36. Photographs of the firearms and some of the ammunition seized from Jibryl’s premises on 18 December 2015 are Exh. JA3

28.   Jibryl was the author of the “torn up motorbike” document and the “We will break the ice here in Aus” document (which are addressed in further detail below). The first of those two documents contains images and descriptions of three firearms referred to as “motorbikes”, which confirms previous coded references to “motorbikes” during conversations to which Jibryl was a party. The second of those documents talks about the Sydney Siege in the CBD (the Lindt Cafe Siege) and says “the earlier we do things the better” and “The time is NOW!!!”

(iv)   Ibrahim Ghazzawy

29.   Ibrahim Ghazzawy was born on 13 October 1995 and is now 21 years old. At the time of the conspiracy, he was 19 years old, having turned 19 on 13 October 2014[37] .

37. Although Ghazzawy is named as a co-conspirator, he in fact pleaded guilty to an offence contrary to s. 101.5 of the Code and has been sentenced: R v Ghazzawy [2017] NSWSC 474

30.   Ghazzawy was an adherent of the violent jihadi ideology. He attended meetings with the other members of the group in furtherance of the conspiracy, and had a mid-level role in the group.

31.   Three of the six handwritten documents found in the offender’s home (each of which is addressed further below) contain Ghazzawy’s handwriting. Those documents demonstrate an active and real consideration of the type of terrorist act contemplated and its target. The documents were handed to others apart from Ghazzawy, and were read, discussed and added to as the discussion continued.

32.   On the “AFP Building” document, Ghazzawy wrote “If we are gna do the istishadi [Arabic for “martyrdom”, “death of a martyr” or “heroic death”] the AFP building is a good target, its in parra or the city.” On the “Gorilla Warfare” document, Ghazzawy wrote “The plan is gorilla [sic] warfare ... we are going to go to the woods and attack the dogs there, Blue Mountains and the surrounding forests.” On the “Lithgow Jail” document, Ghazzawy’s writing included the following: “Im gna speak to the group of 5 and tell them to immobilize as soon as we do our attack or even before. So it will confuse the enemy, and insha Allah [Allah willing] more brothers will arise and do something as soon as it sparks.”

(v)   Mohamed Al Maouie

33.   Mohamed Al Maouie is Jibryl’s brother. He was born on 30 October 1995 and is now 21 years old. At the time of the conspiracy, he was 19 years old, having turned 19 on 30 October 2014.

34.   Mohamed was an adherent of the violent jihadi ideology. His telephone contained a significant amount of extremist material, and images of him firing a pistol at a pistol range. When he was questioned about this material, he said he downloaded the material to show people “How stupid it was over there”, but denied that he was a supporter.

35.   He attended meetings with the other members of the group in furtherance of the conspiracy, and had a mid-level role in the group.

36.   His handwriting was on one of the six documents found at the offender’s premises, the “Gorilla Warfare” document. His fingerprints were on three of the documents, namely the “Gorilla Warfare” document, the “We will break the ice here in Aus” document and the “Blue Mountains” document.

37.   In the “Gorilla Warfare” document, Mohamed wrote the following:

“*    Hijra [migration] out of NSW - 7

*   Abo land

*   Dawah [proselytizing or preaching of Islam] to Abos = Army

*   Army = Buildings, Fortresses, Plans etc

*   Start Slowly ( under cover )

*   Own world

*   Start small = HUGE”

(vi)   Farhad Said

38.   Farhad Said was born on 30 January 1992 and is now 25 years old. At the commencement of the conspiracy, he was 22 years old, having turned 22 on 30 January 1994.

39.   Said was an adherent of the violent jihadi ideology. His telephone contained a significant amount of extremist material. He attended meetings with the other members of the group in furtherance of the conspiracy, and had coded telephone conversations with the offender. He had a mid-level role in the group.

40.   Said’s handwriting was on two of the six documents found at the offender’s premises, the “AFP Building” document and the “Lithgow Jail” document. In the “AFP Building” document, Said’s writing included the following: “Helicopters and all that so we are going to fight till shahada anyway so we might as well do something major”. In the “Lithgow Jail” document Said’s writing included the following: “Why don’t we target like a big organisation eg: headquarters of police force, ASIO etc but something massive ... If we are want to go all out them istishhad goes in then the rest go in to finish things off”.

THE DOCUMENTS

A.   Overview - documents’ purpose and circumstances of creation

41.   The offender agreed to and in his many intercepted messages, encouraged, the preparation and planning of a terrorist act as manifested in the handwritten planning documents prepared by the other conspirators in furtherance of the conspiracy. The documents were connected with the preparations for a terrorist act or acts both on their face, and in the circumstances of their creation. The documents record a form of discussion and they were read, discussed and added to as the discussion continued. The forensic evidence shows that the documents were handed to others, apart from the author. In some cases, writing was added to the documents by someone other than the original author. The documents demonstrate an active and real consideration of the type of terrorist act contemplated, and its target. They outline different methods for the commission of one or more acts of terrorism and set out possible targets.

42.   The documents also demonstrate that the terrorist act or acts contemplated involved the use of firearms. They demonstrate that the type of acts being planned involved the killing of police - referred to disparagingly at times as “dogs” - and government officials. The documents demonstrate the religious inspiration for the act of terrorism contemplated, and reflect the violent jihadi ideology of the group (including by express references in the documents to jihad, religious obligation and the defence of Islam).

43.   In total, six handwritten planning documents were located at the offender’s premises at 13 Berry St Regents Park when a search warrant was executed on 18 December 2014. Most of them were found in the garage that the offender used as his bedroom, and one was torn and rolled up in the kitchen.

44.   The results of forensic examination of the documents are as follows:

a)   Document 1, Item I370, the “Torn Up Motorbike” document: Jibryl Almaouie wrote this document and his and the offender’s fingerprints have been identified on it;

b)   Document 2, Item I371c/d, “We Will Break the Ice Here in Aus” document: Jibryl Almaouie wrote this document and his fingerprints, together with those of the offender, “IM”, Mohamed Al Maouie and Said have been identified on it;

c)   Document 3, Item I372, the “AFP Building” document: this document was written by Ghazzawy and Said and the fingerprints of an unknown person have been identified on it;

d)   Document 4, Item I373: “Gorrilla Warfare” document: this document was written by Ghazzawy, Mohamed Al Maouie and an unknown person and the fingerprints of Mohamed Al Maouie and a third person have been identified on it;

e)   Document 5, Item I375, the “Lithgow Jail” document: this document was written by Ghazzawy and Said and the fingerprints of an unknown person have been identified on it; and

f)   Document 6, Item I374, the “Blue Mountains” document: the author of this document has not been identified and the fingerprints of Mohamed Al Maouie have been identified on the document.

In summary, the offender handled Documents 1 and 2 but his writing was not identified on any of the documents.

B.   Contents of documents

(i)   DOCUMENT 1, Item I370: “The torn up Motorbike” document

45.   Item I370, the “torn up motorbike” document, contains images and descriptions of three firearms referred to as “motorbikes”. It confirms previous coded references to “motorbikes” during conversations between the offender and another person.

46.   The note was found on the kitchen floor of the offender’s home, ripped into four strips and rolled into a ball. It was torn up immediately before police entered the premises to execute the search warrant. It reads as follows:

“   About 350 litres of fuel for 3

motorbikes. Two long ones & one short

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

-   About 100 litres of fuel for another motorbike

but it finishes quickly. 10 litres at a time

will finish in a day or less

-   About 300 litres of fuel for another

motorbike but it only takes 1 litre

at a time. It has its advantages like

2 x Long ones  $2500

$4000

Short one

Fast one

Slow one   

$5,000

$25,000

$30,000

$40,000”

47.   A reproduction of item I370 the “Torn Up Motorbike” document is on the next page.

(ii)   DOCUMENT 2, Item I371c/d: “We Will Break The Ice Here In Aus” document

48.   This document was located inside a backpack which was found in a garage adjoining the offender’s family home. The offender used this garage as his bedroom. Document examination has confirmed that this document was written by Jibryl Almaouie. It reads as follows:

Page 1

“1 – Security precautions is all wrong!!!

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

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

3 – We just saw what happened the next day, at the Sydney Siege in the CBD which means they will be on us 24/7 & I told you the earlier we do things the better. What are we waiting for the enemies to collect more info & we all cop it sideways. An example is salat [38] is a fard [39] right, can we say have sabr akhi [40] & wait till its time to pray & make tarbiyyah before praying, NO!!! Allah says about the prayer being delayed, woe to those who pray.

38.    Salat is one of the Five Pillars of the faith of Islam and an obligatory religious duty for every Muslim. It is a physical, mental and spiritual act of worship that is observed five times every day at prescribed times

39.    Fardh is an Islamic term which denotes a religious duty commanded by Allah

40.    Akhi means brother

Which was because of them delaying the prayer. And we are delaying Jihad. Jihad is a fard ayn on every Muslim. No permission is needed just as no permission is needed to pray. Both are a fara “id. Weve been waiting for years, ARE WE STILL GOING TO WAIT!!! Enough is enough, these pigs ( Australians ) are fighting our brothers in Ash – Sham [41] & here in Aus & yous still want want to wait. Read, An – Nisa [42] : 84 [43] & tell me what excuse do we have after this Read, An-Nisa; 75 [44] as well & tell me.

41.    A reference to Syria. (Al-Sham standing on its own can sometimes refer to the city of Damascus.)

42.    An-Nisa is a sura (Chapter) in the Quran known as “The Women”

43.    Sura An-Nisa 84 in, one translation, reads: So fight, [O Muhammad], in the cause of Allah; you are not held responsible except for yourself. And encourage the believers [to join you] that perhaps Allah will restrain the [military] might of those who disbelieve. And Allah is greater in might and stronger in [exemplary] punishment

44.    Sura An-Nisa 75 reads: And what is [the matter] with you that you fight not in the cause of Allah and [for] the oppressed among men, women, and children who say, “Our Lord, take us out of this city of oppressive people and appoint for us from Yourself a protector and appoint for us from Yourself a helper?”

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

- 4- Show us a visual recording or hardcore evidence that the Khalifah [45] chose you to be the Amir Otherwise I will give the bay ah [46] myself. Just as the brothers in prison did without an Amir.

45.    Khalifah is a name or title that means “successor” or “steward”. It most commonly refers to the leader of a Caliphate, but is also used as a title among various Islamic religious groups and orders

46.    In Islamic terminology bay’ah is an oath of allegiance to a leader

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

THEN WHEN ? After we get slaughtered one by one?

6- Im not a fool and I will

make sure how to give the bay ah and who

to give it too & the conditions

& so on. So I won’t give it blindly

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

things & we will break the ICE

here in AUS. Instead of being

sitting headless ducks with no –

direction were (sic) to go or look.

And by that everything will start

Here which will make yous walk

your talk instead of talking your talk”

49.   A reproduction of Item I371 is on the following pages.

(iii)   DOCUMENT 3, Item I372: “AFP Building” document

50.   A further handwritten document, Item I372, was also located in a backpack in the garage, identified as the offender’s bedroom. It reads as follows:

“If we are gna do the

istishadi [47] the AFP building is

47.    The Arabic word for “martyrdom”, death of a martyr”, or “heroic death”.

a good target, its in parra or

the city.

Like the brother said, they will

catch up with us anyway so same

thing.

Helicopters and all that so

we are going to fight till

shahada [48] anyway so we

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

might as well do something

major”

51.   A reproduction of Item I372 is on the next page.

(iv)   DOCUMENT 4, Item I373: “Gorrilla Warfare” document

52.   This document was found in a suitcase in the garage that the offender used as his bedroom. It reads as follows:

“The plan is gorilla (sic) warfare

(illegible) we are going to go

to the woods and attack

the dogs there, Blue Mountains

and the surrounding forests.

Who are we going to find there?

*   Hijra [49] out of NSW – 7

49.    Arabic word for migration

*   Abo land

*   Dawah [50] to Abos = Army

50.    Da’wah means the proselytising or preaching of Islam

*   Army = Buildings, Fortresses, Plans etc

*   Start Slowly ( under cover )

*   Own world

*   Start small = HUGE”

53.   A reproduction of Item I373 is on the next page.

(v)   DOCUMENT 5, Item I375: “Lithgow Jail” document

54.   This document was located inside a suitcase in the garage, used as the offender’s bedroom. It reads:

Page 1

“Near by theres lithgow jail, insha

Allah if we make progress we will

attack it.

So All of us gorila warfare?

Yes, but I would prefer the birthday

cake orries more but if not then

I’ll go with what the rest of yous think

Im gna speak to the group of

5 and tell them to immobilize

as soon as we do our attack or

even before. So it will confuse the

enemy, and insha Allah more brothers

will arise and do something as

soon as it sparks.

Why are they going to immobilize

Why don’t we target like a

big organisation eg: headquarters

of police force, ASIO etc but

something massive that would

get them shocked and stuff up

there organisation. If we are want

to go all out them istishhad

goes in then the rest go in

to finish things off

On Sunday Abu bakr will tell him

the Amir the 2 plans most

preferably the Gorrilla warfare first

then the istishhadi plan. Abu Azzam will lay

(illegible) conditions. [word crossed out; illegible]

As soon as we take out a

dog, they will attack.”

55.   A reproduction of I375 in on the following pages.

(vi)   DOCUMENT 6, Item I374: “Blue Mountains” document

56.   This item was located inside a suitcase that was located in the garage, used as the offender’s bedroom. It was written on the back of a notepad, and reads as follows:

“Blue Mountains

Bush

Buildings/protections”

57.   A reproduction of Item I374 is on the following page.

FIREARMS AND AMMUNITION

A.   Firearms in Jibryl Almaouie’s possession

58.   During the execution of the search warrant at Jibryl Almaouie’s residence on 18 December 2014, firearms (each of which was operational) and a large quantity of ammunition were located in his bedroom. These items were found amongst items identified as his and were seized:

a)   1 x bolt action rifle (modified .303) with magazine containing rounds attached;

b)   Ammunition;

c)   Two “12 gauge” shotgun shells;

d)   Bag containing 21 large calibre (sic) rounds;

e)   Two bags containing small calibre (sic) rounds;

f)   Black bag containing around 20 shotgun rounds;

g)   Wooden stock for a shotgun;

h)   Shotgun barrel and single round of ammunition;

i)   Five boxes of shotgun and other .22 gauge ammunition;

j)   6.5mm rifle ammunition; and

k)   Double barrel shotgun barrel.

Jibryl Almaouie’s DNA was found on the shotgun and shotgun stock. Photographs of the firearms and some of the ammunition found and seized during this search will be tendered on sentence.

B.   Firearms sourced by “IM”

59.   At about 8.00pm on 6 December 2014, “IM” went to his uncle’s house with the intention of ascertaining what firearms were there. “IM” took possession of these firearms for the purpose of posing for photographs and sending these to the offender to check how they were housed and to generally assess if those firearms might be seized and used by the group. Over the next couple of hours he posed for photographs in various positions with three of the firearms, which he sent to the offender.

60.   The firearms sourced by “IM” at his uncle’s house were:

a)   A Marlin 336 Rifle;

b)   An under over double barrel shotgun;

c)   A Carl Gustaf 96 Rifle; and

d)   A Thompson Centre Rifle.

Copies of photographs found on “IM”’s phone showing him posing with these firearms, including those sent to the offender, will be tendered on sentence.

61.   “IM” was later charged and pleaded guilty to possession of firearms.

INTERCEPTED TELEPHONE COMMUNICATIONS

62.   The offender’s telecommunications service was lawfully intercepted from 7 November 2014 to 24 December 2014. Monitoring of this service confirmed that the offender was in regular contact with the other conspirators. At the time, the services used by each were:   a)   The offender: 0405215760 - subscribed in the name of Suleiman HALID;

b)   “IM”: 0420404974 - subscribed in the name of Adam STEVENS;

c)   J. Almaouie: 0421937701 - subscribed in the name of Lady Nho TRAI;

d)   M. Almaouie: 0428815371 - subscribed in the name of Mr Abdallah ALMAOUIE;

e)   Ghazzawy: 0420298595 - subscribed in the name of Ms Amira GHAZZAWY;

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

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

63.   With the exception of one of Said’s services and that of Ghazzawy and Mohamed Al Maouie, these names were intentionally false. Whilst recognising that in some cases the service was in a parent’s name, the use of obviously false names is relied upon by the Crown as supporting the existence of the conspiracy, the purpose of subscribing in a false name being to make it more difficult to track or identify the subscriber if the call was overheard.

64.   The offender and “IM” had a large number of telephone communications. In many of these intercepted communications, code words were used. The offender and “IM” knew that their activities had to be kept secret from the authorities, and attempted to cloak the true meaning of their conversations.

65.   A significant amount of the contact between the conspirators occurred by telephone, either by text messages or telephone conversations. The majority of the hundreds of telephone communications during the conspiracy period were between the offender and “IM”. Accordingly, the transcripts of each of the intercepted communications will be tendered on sentence.

66.   The key topics of discussion between the offender and “IM” were the desire to die, in particular to die as martyrs together, “IM”’s questions about whether it was better to do a terrorist act here in Australia or to go overseas - apparently to Syria - and to engage in fighting there (to which the offender responded it was better to do so here, and that they would do so) and coded discussions about firearms and ammunition.

67.   Examples of telephone communications between the offender and “IM” follow.

68.   On 7 November 2014, they had the following conversation:

“IM”:    “I’ll be with, I’ll be with the virgins of Paradise, with the permission of Allah, the Most High ASAP.”

...

OFFENDER:    “... (Singing) O Garden (of Paradise), O Garden (of Paradise), O Garden (of Paradise), I swear by Allah I cannot wait ...”

“IM”:    “I swear by Allah I cannot wait.”

OFFENDER:   “Come on our boys, come on our beloved. Come on, come on, come on, (sounds). Let’s do... Allah willing, Isaac, you’ll be running to the Garden (of Paradise). (Indistinct conversation in the distance - males) O Garden (of Paradise). O Garden (of Paradise). O Garden (of Paradise), I swear by Allah I cannot wait. Come on, Abdul Malik, let us run to the Garden (of Paradise).”

“IM”:   “Run to mart ... martyrs”

69.   At 5:54pm on 9 November 2014, “IM” sent the offender an SMS message saying “But allhamdulilah [51] it is 9 brothers including me”.

51.    All praise is due to God alone

70.   On 10 November 2014, “IM” called the offender. During their conversation “IM” told the offender that he had sought his father’s permission to travel overseas to fight, however, his father refused. “IM” discussed martyrdom and wanting to go to “Jannah.” [52]

52.    Paradise

71.   From 2:16pm on 10 November 2014, “IM” and the offender had the following conversation by way of SMS messages:

“IM”:    “Allhamdulilah!!!! So we have 9 Shabab [53] try to get more?”

53.    Boys

OFFENDER:    “Can’t see you today 9 shabab meaning 9 chefs cause in shall ah [54] were going to be cooking lots of nice food”

54.    God willing

OFFENDER:    “We have a big kitchen as well”

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

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

“IM”:   “Look Abu [55] are we gonna train”

55.    Abu used in this manner is Arabic slang for leader

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

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

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

72.   At 8:44am on 11 November 2014, the offender and “IM” had the following conversation by way of SMS messages:

OFFENDER:   “(IM) guess what today I turned 20 years old”

“IM”:   “Praise be to Allah brother I’d say happy birthday but it’s religiously forbidden so happy 20th”

OFFENDER:   “Thanks my beloved just know that we are getting closer to death everyday.”

73.   During a telephone call at 7.12pm on 14 November 2014, the offender and “IM” had the following conversation:

“IM”:    “About over pools and stuff.”

OFFENDER:    “Pools?”

“IM”:   “Yeah, over pools.”

OFFENDER:   “What’s pools?”

“IM”:   “Your area.”

OFFENDER:   “My area?”

“IM”:   “Where you from?”

OFFENDER:   “Like yeah, man, what are you - what are you talkin’ about?”

“IM”:   “Brother, the State of Islam has been established.” ... “Yeah, I’ll tell him it’s - is like what he recommend, there or here, like” ...“No, not about - not about here. There, ask him what he recommends. No, yes.” ... “Bananas over there. Not over here.” ... “I want to ask him. I want to ask him, what do you recommend about me bananas there.”

The reference to “over pools” was a reference to overseas, and the reference to “bananas” was a reference to firearms.

74.   A few minutes later, at 7.17pm on 14 November 2014, “IM” again called the offender. “IM” said “I’m goin’ to ask him if he recommend that I do banana there or here”.

75.   In a further telephone conversation between the offender and “IM” at 11.58am on 29 November 2014, there was the following discussion of a “party”:

“IM”:   “The brother that you’re gunna meet, are we getting to the party - him? Like, you know what I mean?”

OFFENDER:   “Yeah, he’s gunna have a party, yeah.”

“IM”:   “With us?”

OFFENDER:   “Yeah. Do you want me to send the greetings to him?”

“IM”:   “Yeah. Have I ever met him?”

OFFENDER:   “No.”

“IM”:   “Can I know his name?”

OFFENDER:   “Abu ZAKARIA.” [Wassim FAYAD]

...

“IM”:   “How old’s his son?”

OFFENDER:   “He’s old enough.”

“IM”:   “Like?”

OFFENDER:   “I don’t know, probably twenty, twenty-one.”

76.   At 10:47pm on 2 December 2014, the offender and “IM” had a

conversation by way of SMS messages:

OFFENDER:    “(IM) don’t leave my side please”

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

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

77.   At 7:48pm on 3 December 2014, “IM” and the offender had the following conversation by way of SMS messages:

“IM”:   Tomatoes and bananas is our patience brother in al islam make supplication” [56]

56.    In Islamic terminology dua, or supplication, is calling out to God or a conversation with God

The offender later sent the following SMS messages to “IM”:

OFFENDER:    My love I ask Allah to allow us to leave this world together together together me and you this is what I wish for this is what I want and this is what I ask Allah everyday for to leave to depart from this world with my little brother with my love as I’m writing this to you I’m crying (IM) I want you to stick by me stand with me together we will leave this life”

OFFENDER:   “I don’t want to leave this life by myself I don’t want to”

OFFENDER:   “I will make supplication for you my young little brother I swear I’m here for you all I ask Allah Glorified and Exalted is He to allow me and you to leave to the Garden (of Paradise) together ...”

78.   On 5 December 2014, “IM” sent a text message to the offender as follows: “Glory be to Allah I had a dream that we did bananas here”.

79.   On 6 December 2014, “IM” sent a text message to the offender as follows: “Do you know how my dad got he’s bananas licences anyway me and him are going to check some bananas out at hes brothers cause he’s has some.” (“IM”’s father was the holder of a firearms licence.) At the time “IM”’s uncle was also the licensed owner of the four firearms that are described above.

80.   During the evening of 6 December 2014, “IM” sent the offender a text message as follows: “Like what time ,,, do you want me to send you a pic of me holding the banana”. The offender replied: “No show me the banana tomoz so I can eat it as well”.

81.   At 3.06pm on 8 December 2014, the offender and “IM” had a half an hour conversation during which they continually referred to the word “banana”. For example:

“IM”:   “How long do you reckon, um, we’re gonna get the - the bananas in because I’ve ordered the green ones, they’re too small but.”

OFFENDER:    “I don’t like green bananas.”

“IM”:    “Yeah, how long you reckon the full bananas will come in?”

OFFENDER:    “Don’t forget there’s oranges and there’s, um...”

“IM”:   “Um, throwers. I call the oranges throwers, yeah?”

OFFENDER:   “No, no, no, fruits.”

“IM”:   “Everything? ... Have you been told what bananas and fruits ...(indistinct)...?”

OFFENDER:   “Yeah ...(indistinct...) they’re bananas. Anyway look - - -”

...

“IM”:   “Listen to me. Do you know when we’re goin’ to get the bananas? ... Did you call about it yet? ... Did you call about it yet because I’m dying in temptation, bro? I’m dying.”

Later in the conversation “IM” said: “I’m thinking of takin’ my phone away ... I’m thinkin’ of chuckin’ my phone, bro”. The conversation continued:

OFFENDER:   “What the heck, man? ... Would you eat a - would - would you eat a banana with me?”

...

“IM”:   “I’m bein’ serious. I don’t want ..(indistinct)...”

OFFENDER:   “Ah no, I’m - I’m serious. An actual banana. Would you eat an actual banana with me?”

“IM”:   “Yeah.”

82.   On 10 December 2014, “IM” sent the offender an SMS that included the words: “I think Allah willing I am going to get the Garden of Paradise through that banana. God is great, no god but Allah is the Most Great there is no god but Allah O Abu Bakr”. The offender responded “Praise be to Allah are you going to stand and stay beside me ?” and “IM” replied “Allah willing yes.”

83.   At 10.41pm on 15 December 2014, Osman and the offender had a coded conversation about firearms. The offender said “I mean once we give the marriage contract then - then, um, then we’ll be able to get our hands on those motorbikes”. Osman said “I’m not really sure what you’re talking about exactly, brother, but I tell you what I do, tomorrow I’m gunna come see my brother, ah, my brother’s step kid”. Osman later said “I’ll go through everything in detail with you if I’m - I’m a hundred per cent what we’re talking about tomorrow, Allah willing”. When the term “motorbikes” is used out of context, as it was here, it had a coded meaning of “firearm” (as it did in the “Torn Up Motorbike” document found in the offender’s kitchen on 18 December 2014.)

84.   At 10.45pm on 15 December 2014, “IM” asked the offender what was up. The offender said “you told him - you told him about the --the marriage contract and the motorbikes”. The offender asked what made “IM” tell him about this. “IM” said that he would tell the offender tomorrow when he saw him. “IM” said he and “Tony” (that is, Ghazzawy) “are thinking of going to Bankstown and crossing the roads”. The offender asked what is in Bankstown. “IM” was not going to tell the offender. The offender asked if “IM” was going to buy some clothes in Bankstown. “IM” said that they were going to cross the roads, “[t]hen go a different area, like I mean not Bankstown. Different area you understand?”.

85.   At 2:47pm on 16 December 2014, the offender and Jibryl Almaouie had a conversation relating to firearms. This conversation referred to the Lindt café siege. Immediately after this they spoke in Arabic and Jibryl said “I need to get married bro, straight out”. The offender replied, “we need to all get married”. Later in the conversation the offender said: “Bro, I looked at the flamin’ - the flippin’, um, what’s it called, the contract you gave me yesterday.” Jibryl laughed and said, “Straight flame, bro”. This coded conversation relates to the firearms found at Jibryl’s home on 18 December 2014 (which are referred to above).

86.   At 2:53pm on 16 December 2014, the offender and Jibryl had a further conversation during which they used code, and referred to food in place of ammunition; for example: cake, apricots, marshmallows, apples, grapes, strawberries, sponges, and other terms.

87.   At 2:17pm on 17 December 2014, the offender and “IM” had a telephone conversation. In this call “IM” was becoming impatient and wanted to know when the terrorist attack would happen. He asked the offender “Tell me now, good news or bad?”. The offender stated that he would tell “IM” after, when he saw “IM”. The offender said “Now don’t give me a headache!”. The offender said that the news is “Um, ah, in the middle”. “IM” asked “So does it mean we’re taking a step or we’re not gonna take a step? ”. The offender said that it was not about that. “IM” asked if “he” changed the “wedding date”, and the offender said that “it is but it’s not. It’s nothing about the day or anything”, and that he needed to speak to “IM” and ask him a question. “IM” guessed it was about “John”. The offender said that it was not about John. “IM” guessed that John wanted in on the “marriage”, “Like my supplication has been answered and everything, man, glory be to Allah”.

MEETINGS OF THE CONSPIRATORS AND OTHERS

88.   On 2 November 2014, the offenders and three others visited a prisoner called Wisam Fayad at Goulburn jail. During the visit, in response to a question from one of the men “Is Paradise real or not”, the offender answered “100%”. He later said “I’m the only one with balls”.

89.   After that jail visit, the conspiracy commenced. The offender was responsible for arranging meetings of the conspirators and others, and encouraged them to meet at his premises at 13 Berry St Regents Park. They also met at other places such as parks, and from time to time to pray.

90.   The offender increased the frequency of meetings with the conspirators and others from 29 November 2014 until the execution of a number of search warrants on 18 December 2014 (further details of which are set out below). The offender and the others used coded language to arrange the meetings, for example referring to the offender’s premises as the “wombat hole”. The conspirators and met regularly at the offender’s house in Regents Park during the first part of December 2014 and leading up to 18 December 2014.

91.   Surveillance and telephone intercept material confirms that a number of the group, including the offender, Jibryl Almaouie, Mohamed Al Maouie and unidentified others, attended 13 Berry Street Regents Park on the evening of 17 December 2014 and the early morning of 18 December 2014. Jibryl had been under observation by police from earlier on 17 December 2014 and was seen to drive his vehicle ALK-45X into the city. A short time later the vehicle was seen to leave and travel to where it was parked and unattended in the vicinity of 13 Berry Street Regents Park from 10.45pm on 17 December 2014 until 1.55am on 18 December 2014, when a male was seen to enter the vehicle and travel to Jibryl Almaouie’s residence at 73C Clarence Street Condell Park, where the vehicle was left parked. At 11.40am on 18 December 2014, the offender was seen to leave his residence, enter his vehicle and drive away.

ARREST AND CHARGING

92. On 10 December 2015, the offender, “IM”, Jibryl Almaouie and Ghazzawy were arrested and charged. Mohamed Al Maouie was arrested on 23 December 2015. Farhad Said was arrested on 26 May 2016. Each was provided with their legal rights under Part 1C of the Crimes Act1914 and declined to participate in a record of interview.

93.   The offender has been in custody since 23 December 2014 for this offending.

30. The statement of overt acts tendered by the Crown [57] is as follows:

    57. Exh. SK1 at para. 13

Date	Overt Act	Exhibit No.	Call No.	Accused
Preparation documents
-	1. Writing identified part of Document 1: 1370, Torn Up Motorbike Document	N/A	Jibryl Almaouie
-	2. Keeping Document 1: 1370, Torn Up Motorbike Document	N/A	Khalid
-	3. Handling Document 1: 1370, Tom Up Motorbike Document	N/A	Khalid
-	4. Writing front and back of Document 2: 1371, Break the Ice Document	N/A	Jibryl Almaouie
-	5. Keeping Document 2: 1371, Break the Ice Document	N/A	Khalid
-	6. Writing Document 2B: 1371, Break the Ice Document	N/A	Jibryl Almaouie
-	7. Keeping Document 2B: 1371, Break the Ice Document	N/A	Khalid
-	8. Handling Document 2B: 1371, Break the Ice Document	N/A	"IM"
-	9. Keeping Document 3: 1372, AFP Building Document	N/A	Khalid
-	10. Keeping Document 4: 1373, Gorilla Warfare Document	N/A	Khalid
-	11. Keeping Document 5: 1375, Lithgow jail Document	N/A	Khalid
-	12. Keeping Document 6: 1374, Blue Mountains Document	N/A	Khalid
Date	Overt Act		Exhibit No.	Call No.	Accused
Firearms
13 Acquiring and retaining three firearms (a)   A shortened 12 gauge shotgun, (b)   A bolt action modified 303 rifle, and (c)   A 12 gauge double barrel over under shotgun, and ammunition thereof		N/A	Jibryl Almaouie
1 6/12/14	14 Identifying the whereabouts of four firearms (a)   A Marlin 336 Rifle, (b)   An under over double barrel shotgun, (c)   A Carl Gustaf 96 Rifle, and (d)   A Thompson Centre Rifle, at the address of Nasser "IM"		N/A	"IM"
Planning conversations (intercepted conversations and text messages)
Various, between 7/11/14 18/12/14	15 Conversations about impending martyrdom	Various (eg, CSN 18, CSN 496, CSN 490)	Khalid and "IM"
10/11/14	16 Coded and guarded conversation about training for a domestic terrorist attack	CSN 437	Khalid and "IM"
Various, between 7/11/14- 18/12/14	17 Coded and guarded conversations about planning a domestic terrorist attack	Various (eg CSN 3179, CSN)	Khalid and "IM"
5, 6, 8 & 15/12/14	18 Coded and guarded conversations about firearms	CSN 4042, CSN 4179,	Khalid and "IM"
Date1	Overt Act	Exhibit No.	Call No.	Accused
CSN 4207, CSN 4208, CSN 4407, CSN 6456
16/12/14	19. Coded and guarded conversations about firearms and ammunition	CSN 6648, CSN 6649	Khalid and Jibryl Almaouie
Meeting
The night of 17 & 18/12/14	20. Meeting at Khalid's premises at 13 Berry Street Georges Hall for the purpose of considering the documents made in preparation for a terrorist act.	N/A	Khalid and Jibryl Almaouie

Khalid’s criminal history

31. Khalid’s criminal history records a finding of guilt in the Local Court in September 2015 for a charge of stalk/intimidate in respect of which he was given the benefit of a bond under s. 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 12 months [58] . There are no other entries.

    58. Exh. SK2

The evidence of Mr Piazza

32. The affidavit of Mr Piazza [59] deals with a number of matters which are generally common to all offenders (with the exception of IM, in whose case affidavits from other persons [60] were tendered which go, broadly speaking, to the same issues).

    59. Exh. SK3

    60. Exhs. IM3 and IM13

33. Khalid is held in the High Risk Management Correctional Centre (“HRMCC”) at Goulburn which houses offenders who have been determined to represent a significant risk to the security of both the centre and the wider community, and who therefore require a higher level of supervision than the general prison population [61] . Khalid is currently classified as an AA Extreme High Risk Restricted Inmate [62] . He is permitted legal visits between Wednesday and Sunday of each week. All such visits are “non-contact” [63] , and correctional staff are positioned in the general vicinity of where the visit takes place [64] . A person may only visit an offender of Khalid’s classification if he or she has been approved by the Commissioner. Since being taken into custody Khalid has had a number of visits with relatives. Those too are “non-contact” visits. He currently has five approved personal visitors and one approved psychologist/psychiatrist. He has also had the telephone numbers of various family members approved to allow him to have conversations with them [65] .

    61. Exh. SK3 at para. 4

    62. Exh. SK3 at para. 11

    63. Exh. SK3 at para. 23

    64. Exh. SK3 at para. 24

    65. Exh. SK3 at paras. 35-39

34. Khalid has reached Stage 2 of what Mr Piazza described as his “behaviour management level”. As he progresses through further levels, his privileges will be greater, particularly in terms of access to funds and amenities. The amenities to which he currently has access include basketball courts, running tracks and exercise yards. His ongoing access to those (and other) facilities will be dependent upon the particular behavioural level at which he is assessed at a given time [66] .

    66. Exh. SK3 at paras. 47-50

35. It is open to Khalid to access all medical and mental health services offered at HRMCC, irrespective of his classification and designation [67] . The Proactive Integrated Support Model (“PRISM”) has been established to support the rehabilitation of offenders who have expressed certain religious or political views, or who have previously acted in a way that may be considered radical or extreme. The program is managed by a multidisciplinary team which includes a psychologist and a religious co-ordinator. When an offender engages with the program he is required to undergo an assessment of his psychological and social needs, following which a plan is developed to assist him in improving his life. Thus far, Khalid has made no application to enrol in the program [68] . Mr Piazza stated that there is presently no information to suggest that Khalid has renounced any extremist ideology [69] .

    67. Exh. SK3 at para. 53

    68. Exh. SK3 at paras. 54-58

    69. Exh. SK3 at para. 59

36. Annexed to Mr Piazza’s affidavit were a number of case notes to which I was taken in the course of submissions. A case note of 15 June 2016 prepared by Mohammad Al Halabi made reference to concerns being expressed about Khalid “screeming (sic) in the middle of the night and saying strange things”. Mr Halabi noted that Khalid appeared to be “hostile and very disturbing” and he said that Khalid had indicated to him that he would like to learn more about “Islamic jurisprudence”, something Mr Halabi thought was a positive sign [70] . A further case note of 13 July 2016 prepared by James Poulos made further reference to Khalid’s “keen interest in Islamic juresprudence (sic)” which had apparently given rise to his being monitored on account of what were considered to be his extremist views [71] . The note also made reference to the fact that Khalid had been informed that concerns had been raised by a number of persons with whom he interacted about his “unsettling comments and behaviour” [72] .

    70. Exh. SK3 at p. 103

    71. Exh. SK3 at p. 104

    72. Exh. SK3 at p. 104

37. A further case note of 3 August 2016 prepared by Vicki Walcott [73] made reference to Khalid expressing an interest in receiving a visit from a Rabbi because he “wanted to learn as much as possible about all things”. A further case note prepared by Ms Walcott on 7 September 2016 made reference to Khalid being visited by the Imam, who reported that Khalid had told him that he (Khalid) was “under pressure by a belief he had a demon in his body directing him to think and act in a manner not comfortable to (him)”, and that he was under “pressure to manage the unwelcome thoughts/voices in his head” [74] . The Imam expressed the view that such a presentation, if left untreated, was capable of leading to “serious mental health or self-harm behaviour”. It was noted that there was a plan to refer Khalid for mental health assessment. The evidence before me is silent on what (if anything) eventuated in that respect.

    73. Exh. SK3 at p. 105

    74. Exh. SK3 at p. 107

38. Having been taken to those case notes, I drew the attention of senior counsel for Khalid to the conclusion expressed by Dr Nielssen (whose report was tendered and relied upon in Khalid’s case), namely that Khalid was not thought to require any specific psychiatric care or counselling. In response, it was submitted that Khalid had deliberately chosen not to give a complete history to Dr Nielssen because he did not want anyone to know of his condition [75] .

    75. T116.13-T116.15

269. Mr Watson-Munro expressed the view that Mohamed was suffering anxiety and depression. Whilst I have taken that into account, it is also noted that Mr Watson-Munro reported that there was no indication of any major psychiatric disturbance.

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

The prospect of rehabilitation: s. 16A(2)(n)

272. Mr Watson-Munro reported that Mohamed had expressed “appropriate remorse” for his offending. What he meant by “appropriate” remorse is not clear. The use of that word clouds rather than clarifies the issue, and is generally unhelpful. The weight to be attached to that expression made to Mr Watson-Munro is limited. However, I accept that Mohamed’s plea is some evidence of remorse.

273. For the reasons expressed when dealing with the nature and circumstances of the offending, I do not accept that Mohamed did not adhere to violent ideology at the time of his offending. As is the case with the other offenders, his plea of guilty may be indicative of some movement away from that ideology but again, that view is one formed with some caution. The case note to which Mr Piazza was taken in evidence and which recorded Mohamed denying any association with, or interest in, terrorism organisations is, for the reasons I have already expressed, deserving of little weight in the absence of sworn evidence.

Other factors

274. Submissions were made regarding Mohamed’s conditions of custody and I have set out the evidence relevant to that issue. I have taken that factor into account in the way I have previously expressed [409] .

     409. At [124]

275. Finally, Mohamed has been in custody since 23 December 2014 [410] and any sentence imposed should commence on that date.

     410. Exh. MA 1 at paras. 67-68.

FARHAD SAID

276. The following evidence was tendered in Said’s sentence proceedings [411] :

     411. (i), (ii) and (iii) were tendered by the Crown and the balance tendered on behalf of Said

1. statement of facts [412] ;

   412. Exh. FS1

2. Said’s criminal history [413] ;

3. an affidavit of Glen Piazza sworn 14 September 2017 [414] ;

4. a report of Tim Watson-Munro dated 25 September 2017 [415] ; and

5. a series of character references [416]

THE EVIDENCE TENDERED BY THE CROWN

413. Exh. FS2

414. Exh. FS3

415. Exh. FS4

416. Exh. FS5

The facts

277. The facts tendered by the Crown against Said were in the following terms:

BACKGROUND:

1.   The offender, Farhad Said, adheres to the religious ideology of violent jihad. Specifically, he adheres to the religious ideology of Wahhabi-Salafism. This is the ideology that inspires ISIS (the Islamic State of Iraq and Syria), Al-Qaeda and like-minded groups and their supporters. [417]

417.    The last “s” of “ISIS” comes from the Arabic word “al-Sham”, meaning the Levant, Syria or occasionally Damascus, depending on the circumstances. ISIS is also often referred to simply as Islamic State

2.   On 26 May 2016, when the offender’s telephone was seized under warrant on his arrest, it was found to contain the following extremist material:

a.   Various images of combatants and weapons;

b.   Images exhorting support for Muslims in custody and support for Salafi Islamic views;

c.   Images of young men making the ISIS finger salute;

d.   An image of a letter from the British Government, advising the recipient that their passport was cancelled and that he would not be permitted to leave the United Kingdom on the basis that he was believed to be intending to go to fight for Daesh (ISIS); and

e.   Many other images including what appeared to be images of Islamic preachers. During a search of his premises, amongst other material seven compact disks of Islamic lectures were seized under warrant.

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

DOCUMENTS:

4.   The documents the subject of the charge have been referred to in Crown documents concerning the related conspiracy charges as:

a.   Document 3, Item I372, the “AFP Building” Document; and

b.   Document 5, Item I375, the “Lithgow Jail” Document [418] .

418. These documents are set out in Exh. SK1 at paras. 50-51 and 52-53 respectively. Those paragraphs are not repeated but should be treated as forming part of the evidence against Mohamed

…

THE BACKGROUND TO THE DOCUMENTS’ CREATION

The investigation [419]

419. The facts tendered in Said’s case included para (6) of the facts tendered in the case against Mohamed. That paragraph is not repeated but should be treated as forming part of the evidence against Said

Meetings of the Khalid group [420]

420. The facts tendered in Said’s case included paras (7), (8) and (9) of the facts tendered in the case against Mohamed. That paragraph is not repeated but should be treated as forming part of the evidence against Said

Telephone interception of the Khalid group [421]

421. The facts tendered in Said’s case included paras (13) and (15)-(47) of the facts tendered in the case against Mohamed. That paragraph is not repeated but should be treated as forming part of the evidence against Said

13.   In each case, with the exception of one of the offender’s services, false names were used to engage the services. While recognising that in some cases the service was in a parent’s name, the use of obviously false names is relied upon by the Crown as supporting the existence of the conspiracy, the purpose of subscribing in a false name being to make it more difficult to track or identify the subscriber if the call was overheard.

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

SEARCH WARRANT OPERATION ON 18 DECEMBER 2014 [422]

DNA ANALYSIS RESULT [423]

FINGERPRINT ANALYSIS RESULTS [424]

ARREST AND CHARGING

63. On 10 December 2015, Khalid, “IM”, Jibryl Almaouie and Ghazzawy were arrested and charged. Mohamed Al Maouie was arrested on 23 December 2015. Each was provided with their legal rights under Part 1C of the Crimes Act1914 and declined to participate in a record of interview.

64.   On 26 May 2016, the offender was arrested and charged and declined an interview after have had explained his legal rights. He provided his consent to a buccal swab.

65.   The offender has been in custody since 26 May 2016.

422. The facts tendered in Said’s case included paras (49)-(60) and (62) of the facts tendered in the case against Mohamed. These paragraphs are not repeated but should be treated as forming part of the evidence against Said

423. The facts tendered in Said’s case included para (65) of the facts tendered in the case against Mohamed. That paragraph is not repeated but should be treated as forming part of the evidence against Said

424. The facts tendered in Said’s case included para (66) of the facts tendered in the case against Mohamed. This paragraph is not repeated but should be treated as forming part of the evidence against Said

Said’s criminal history

278. Said has no prior convictions.

The evidence of Mr Piazza

279. The affidavit of Mr Piazza set out Said’s conditions of custody which are, generally speaking, consistent with those of the other offenders.

THE EVIDENCE RELIED UPON BY SAID

280. Mr Watson-Munro reported that Said presented as a “co-operative and repentant man” who “specifically chose the description of repentance to reflect his remorse” [425] . Mr Watson-Munro’s report set out Said’s background noting, in particular, that he had been born in Tanzania, that his parents had separated when he was 5 years of age, and that he had been sent to Australia at the age of 12 [426] . Mr Watson-Munro also reported that Said had told him that he was suffering from depression, with symptoms dating back many years, and that those symptoms had escalated since his incarceration [427] . Testing administered to Said confirmed Mr Watson-Munro’s clinical impressions of a depressive disorder.

     425. Exh. FS4 p.1

     426. Exh. FS4 p.2-3

     427. Exh. FS4 p.4-5

281. Mr Watson-Munro reported that Said had repeated “his sense of regret” [428] . He concluded that Said was suffering from a Depressive Disorder, an Anxiety Disorder and features of an Adjustment Disorder arising from his truncated developmental history [429] . He said that the “confluence of these issues” had impacted upon Said’s judgment [430] .

     428. Exh. FS4 p.5

     429. Exh. FS4 p.6

     430. Exh. FS4 p.6

282. A testimonial provided by Danielle Mahmoud, Said’s guardian for the past 14 years, set out the difficulties that Said had experienced as a teenager after arriving to Australia. Those difficulties led Ms Mahmoud to make the decision to return Said to Zanzibar at the age of 18. After a period of 6 months, Said’s mother contacted Ms Mahmoud following which Said returned to Australia. He found full time employment, following which he left Ms Mahmoud’s premises to live elsewhere. Ms Mahmoud expressed her ongoing support for Said. Similar support was expressed in the testimonial of Ali Iddi Mahmoud.

THE NATURE AND CIRCUMSTANCES OF THE OFFENDING

Submissions on behalf of the Crown

283. In a general sense the Crown repeated, as against this offender, the submissions made in respect of Mohamed. However, the Crown emphasised that Said had written both the “AFP Building” document and the “Lithgow Jail” document and submitted that:

1. in the first of those documents, Said had written (inter alia) “…so we are going to fight till shahada anyway so we might as well do something major” [431] ; and

2. in the second he had written (inter alia) “why don’t we target a big organisation e.g.: headquarters of police quarters, ASIO etc but something massive that would get them shocked and stuff up there (sic) organisation” [432] .

   431. Exh. FS1 at para. 6

   432. Exh. FS1 at para. 7

284. The Crown submitted that Said’s offence was committed in circumstances where he was obviously aware that others were to read, discuss and consider the documents that he had made, such that the only available inference was that Said had made the documents knowing of their connection with the preparation for a terrorist act.

Submissions on behalf of the offender

285. Counsel conceded that Said wrote the two documents knowing that they were left in the possession of Khalid, a man he knew to be involved in planning a terrorist act. Counsel also conceded that the nature of what was written by Said in the document had the capacity to influence, in a material way, any person who came into possession of them. That said, counsel submitted that there was no evidence that the documents were examined by any person other than Khalid, and that the potential for further dissemination of the documents was limited given the short time over which they were in existence.

286. Counsel further submitted that the practical utility of the document was limited in light of its brevity, generality, and the absence of any articulation of a specific methodology. He submitted that the significance of these matters was increased by the fact that Said did not have any expertise in the subject matter about which he wrote.

287. Having regard to these matters, counsel submitted that Said’s offending could not properly be regarded as being at the higher end of the scale of seriousness, given the “non-specific and non-instructive nature of the documents”. However, counsel accepted that the objective criminality was not “insubstantial”, and had a real capacity to bolster others in their own potential acts of terrorism. Counsel expressly accepted the need for general deterrence.

Consideration

288. Said was the author of not one, but two separate documents. That serves to increase his criminality over and above that of Mohamed (and also that of Ghazzawy who was charged with a similar offence). What Said wrote in each case was significant. His references to doing “something major” and “something massive” indicate not only his level of pre-meditation and planning, but the extent of the harm which was capable of being done by the acts about which he wrote.

289. I accept that the nature and extent of the publication of the document appears to have been limited. However, it is evident from what he wrote that Said was a committed and violent jihadist. In these circumstances, the objective seriousness of his offending is high. Once again, general deterrence is an important consideration on sentence.

SAID’S SUBJECTIVE CASE

Submissions on behalf of the Crown

290. The Crown acknowledged that Said was a person with no prior criminal history. The Crown also acknowledged the plea of guilty but emphasised the circumstances in which, and the time at which, it had been entered.

Submissions on behalf of Said

291. Counsel for Said firstly submitted that the plea of guilty should be assessed as having been entered at an early stage and should thus “attract a substantial discount”. Counsel also emphasised the absence of any criminal record, as well as Said’s relative youth.

292. In terms of contrition and remorse, counsel pointed to those parts of Mr Watson-Munro’s report in which such expressions were recorded. That said, counsel acknowledged that the weight to be attributed to that evidence was limited, given not only the broad terms in which it was expressed, but also the fact that it was (as counsel put it) “untested hearsay”. Counsel in fact described Mr Watson-Munro’s report as “not particularly helpful” [433] .

     433. T236.34-T236.36

293. Counsel submitted that Said was unlikely to be a danger to the community when he was released, although he conceded that the evidence fell short of establishing that Said had renounced his previously held extremist views. He did however point to the affidavit of Mr Piazza, and the absence in the notes attached to that affidavit of anything to suggest that such extreme views were presently held. Counsel submitted that this evidence, together with the fact that Said had entered a plea of guilty, indicated some movement away from those views. It was submitted that in these circumstances the evidence pointed in a generally favourable direction towards rehabilitation.

294. Counsel also submitted, again by reference to the affidavit of Mr Piazza, that Said’s conditions of custody were obviously strict. In submitting that this should be taken into account as a mitigating factor, counsel submitted that I should do so on the basis that those conditions would, in all likelihood, continue for the entirety of any sentence which might be imposed.

Submissions on behalf of the Crown in reply

295. The Crown submitted that the offence committed by Said required the existence of a particular ideology and that the absence of evidence of renunciation of that ideology necessarily had a bearing upon any assessment of Said’s prospects of rehabilitation. In terms of the report of Mr Watson-Munro, the Crown did not take issue with Said’s background and submitted that the evidentiary value of the report was limited.

Consideration

296. The various aspects of Said’s subjective case are to be considered by reference to (inter alia) the relevant provisions of s. 16A(2) of the Act.

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

297. The relevant principles as to the assessment of the plea of guilty have been previously set out [434] . The additional observations made in respect of circumstances surrounding the entry of the plea by Mohamed are equally applicable to Said.

     434. Commencing at [104]

298. In all of the circumstances, the appropriate discount is 10%.

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

299. In light of the conclusions that I have reached regarding Said’s prospects of rehabilitation, there is a strong need for any sentence to reflect the requirement for personal deterrence.

Character, antecedents, age, means and physical or mental condition: s. 16A(2)(m)

300. Said has no criminal history and the testimonials speak positively of him.

301. Said was 22 years of age at the time of his offending and is now 25. I have previously set out the principles relating to sentencing youthful offenders. However, Said was substantially in excess of the age of maturity at the time of his offending and there is no evidence that immaturity played any part in his offending. It follows that his youth has little role to play as a mitigating factor.

302. Clearly, Said has had a difficult personal background which has given rise to the disorders of which Mr Watson-Munro spoke. However, it does not appear that he is in any need of treatment and he retains the support of his guardians.

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

The prospect of rehabilitation: s. 16A(2)(n)

303. Mr Watson-Munro noted that Said had chosen to describe his level of remorse as amounting to “repentance”. Counsel conceded, for the reasons that I have already discussed, that the weight to be afforded that part of Mr Watson-Munro’s report is limited. Counsel also conceded that the evidence fell short of establishing that Said had renounced any previously held extremist ideology. As is the case with the other offenders, his plea of guilty may be seen as some movement away from such ideology but the matter can be put no higher than that.

Other factors

304. As with other offenders, submissions were made regarding Said’s conditions of custody. I have taken those conditions into account in the manner to which I have previously referred [435] .

     435. At [124]

305. Finally, Said has been in custody since 26 May 2016 [436] and any sentence imposed should commence on that date.

IMPOSITION OF SENTENCE

436. Exh. FS1 at para. 65.

SULAYMAN KHALID

306. In respect of the offender Sulayman Khalid I make the following orders:

1. The offender is convicted of the offence of conspiring to do acts in preparation for a terrorist act or acts.

2. The offender is sentenced to imprisonment for a period of 22 years and 6 months, commencing on 23 December 2014 and expiring on 22 June 2037.

3. I specify a non-parole period of 16 years and 9 months imprisonment commencing on 23 December 2014 and expiring on 22 September 2031.

4. The total sentence is one of 22 years and 6 months imprisonment commencing on 23 December 2014 and expiring on 22 June 2037, and the offender will be eligible for release on parole on 22 September 2031.

5. 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.

JIBRYL ALMAOUIE

307. In respect of the offender Jibryl Almaouie I make the following orders:

1. The offender is convicted of the offences contrary to the Firearms Act 1996 (NSW) in each of counts 1, 2, 3 and 4.

2. In respect of count 1, the offender is sentenced to a fixed term of 6 months imprisonment, commencing on 18 December 2014 and expiring on 17 June 2015.

3. In respect of count 2, the offender is sentenced to 12 months imprisonment, commencing on 18 December 2014 and expiring on 17 December 2015.

4. In respect of count 3, the offender is sentenced to 6 months imprisonment, commencing on 18 December 2014 and expiring on 17 June 2015.

5. In respect of count 4, the offender is sentenced to 6 months imprisonment, commencing on 18 December 2014 and expiring on 17 June 2015.

6. Pursuant to s. 45 of the Crimes (Sentencing Procedure) Act 1999 (NSW) I decline to set a non-parole period in respect of any of the sentences imposed in respect of counts 1 to 4.

7. The offender is convicted of the offence of conspiring to do acts in preparation for a terrorist act or acts.

8. In respect of the offence in (vii) the offender is sentenced to imprisonment for a period of 18 years and 10 months, commencing on 10 December 2015 and expiring on 9 October 2034.

9. In respect of the offence in (vii) I specify a non-parole period of 14 years and 2 months imprisonment commencing on 10 December 2015 and expiring on 9 February 2030.

1. The total sentence commences on 18 December 2014 and will expire on 9 October 2034 and the offender will be eligible for release on parole on 9 February 2030.

2. 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.

IM

308. In respect of the offender IM I make the following orders:

1. The offender is convicted of the offence of conspiring to do acts in preparation for a terrorist act or acts.

2. The offender is sentenced to imprisonment for a period of 13 years and 6 months, commencing on 31 July 2017 and expiring on 30 January 2031.

3. I specify a non-parole period of 10 years and 1 month imprisonment commencing on 31 July 2017 and expiring on 30 August 2027.

4. The total sentence is one of imprisonment for 13 years and 6 months commencing on 31 July 2017 and expiring on 30 January 2031, and the offender will be eligible for release on parole on 30 August 2027.

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 IM be served by him as a juvenile offender up to his attaining the age of 21 years on 12 September 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.

MOHAMED AL MAOUIE

309. In respect of the offender Mohamed Al Maouie make the following orders:

1. The offender is convicted of the offence of intentionally making a document connected with the preparation for a terrorist act, knowing of that connection.

2. The offender is sentenced to imprisonment for a period of 9 years, commencing on 23 December 2014 and expiring on 22 December 2023.

3. I specify a non-parole period of 6 years and 9 months imprisonment commencing on 23 December 2014 and expiring on 22 September 2021.

4. The total sentence is one of 9 years imprisonment commencing on 23 December 2014 and expiring on 22 December 2023, and the offender will be eligible for release on parole on 22 September 2021.

5. 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.

FARHAD SAID

310. In respect of the offender Farhad Said I make the following orders:

1. The offender is convicted of the offence of intentionally making a document connected with the preparation for a terrorist act, knowing of that connection.

2. The offender is sentenced to imprisonment for a period of 9 years and 6 months, commencing on 26 May 2016 and expiring on 25 November 2025.

3. I specify a non-parole period of 7 years and 1 month imprisonment commencing on 26 May 2016 and expiring on 25 June 2023.

4. The total sentence is one of 9 years and 6 months imprisonment commencing on 26 May 2016 and expiring on 25 November 2025 and the offender will be eligible for release on parole on 25 June 2023.

5. 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

Amendments

08 November 2017 - Typographical corrections to paras. [36], [202], [231], [234] and [246].

Decision last updated: 08 November 2017