R v Khawaja

[2020] NSWDC 718

District Court

New South Wales

Medium Neutral Citation:

R v Khawaja [2020] NSWDC 718

Hearing dates:

19 June 2020 (Sentence Hearing), 2 September 2020 (Notice of Motion), 11 September 2020 (Sentence Hearing)

Date of orders:

5 November 2020

Decision date:

05 November 2020

Jurisdiction:

Criminal

Before:

R. J. Weber SC DCJ

Decision:

(1) The offender is convicted of the offences which bring him before the Court.

(2) The offender is sentenced to a term of imprisonment of 4 years and 6 months, with a non-parole period of 2 years and 6 months.

(3) The Court directs that such a term of imprisonment shall commence on 27 December 2018 and that the non-parole period shall expire on 26 June 2021, with the balance to expire on 26 June 2023.

Catchwords:

CRIME – Commonwealth Offences – act with intent to dishonestly influence a Commonwealth public official in the exercise of the official’s duties as a Commonwealth public official – attempt to obstruct, prevent, pervert or defeat the course of justice in relation to a judicial power, being a judicial power of the Commonwealth – make a false document with the intention to use it to dishonestly induce a person in the person’s capacity as a Commonwealth public official to accept it as genuine and if so accepted, to dishonestly influence the exercise of a public duty or function – act intending to induce a person to be called as a witness in a federal judicial proceeding to withhold true testimony – where the offender’s deceptive and dishonest conduct caused the incarceration of an innocent man

SENTENCING – Dishonestly influence offence – Objective seriousness – relevant considerations – nature of the Commonwealth function to be exercised by the person sought to be influenced – the manner in which the official is sought to be influenced and the seriousness of such intended influence – the way in which the offender acted in order to give effect to that intention – any benefit gained by the offender and any detriment caused to the Commonwealth and the community – offending was planned and not spontaneous – where the offender made a lengthy phone call to the Border Watch Hotline and made serious, detailed allegations purporting an innocent man was engaged with groups, espousing beliefs, and potentially preparing terrorist acts in accordance with extremist ideologies – where the recipient of the information was a conduit to persons in authority – where the allegations could have had serious consequences – where there was no adverse result to the man the object of the false allegations

SENTENCING – Public justice offence – Objective seriousness – relevant considerations – the intended actions had a tendency to affect the course of justice – where the offence took place over an extended period of time and involved multiple interactions between the offender and police, at which the the offender purported to be assisting police – offending was planned and not spontaneous – where the offending continued the incarceration of an innocent man – where the offender attempted to conceal the offence – where the offender's conduct had real and dire consequences for the man the object of public justice offence – where the offence had a serious, deleterious effect on the administration of justice and constitutes a significant perversion of the course of justice

SENTENCING – the governing principle for the imposition of a sentence  of "severity appropriate in all the circumstances of the offence" – where there was injury, loss and damage resulting from the offence on the victim – where the offender expressed contrition and entered a guilty plea – no prior convictions – offender's mental condition – where the uncontradicted expert evidence of the offender’s mental condition was that in all probability the offender’s mental condition was causative of the offending – where De La Rosa considerations were relevant – lowering the offender’s moral culpability – not making the offender an appropriate vehicle for general deterrence – having the effect that a custodial sentence may weigh more heavily on the offender – reducing the significance of general deterrence

SENTENCING – Aggregate sentence – good prospects of rehabilitation – low risk of reoffending – relevant considerations in relation to a non-parole period – COVID-19 considerations – mental condition treatment considerations

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code 1995 (Cth)

Cases Cited:

Markarian v The Queen  (2005) 228 CLR 357

R v De La Rosa (2010) 79 NSWLR 1

Category:

Sentence

Parties:

Regina (Crown)
Arsalan Khawaja (Offender)

Representation:

Counsel:
Mr P McGuire SC, with Ms T Epstein (Crown)
Philip Boulten SC with Mr M Kalyk (Offender)

Solicitors:
Ms A Vo (CDPP)
Mr B Wrench (Murphys Lawyers)

File Number(s):

2018/372934

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, and upon the grounds set out at s 8(1)(a), (c) and (e) of that Act, by order of the Court, dated 2 September 2020, there is to be no publication of
the real names of M1 and F1.

Judgment

1. On 8 November 2019, the offender, Arsalan Khawaja, pleaded guilty to the following two offences:

1. On about 9 January 2017, the offender did make a telephone call to the Department of Immigration and Border Protection’s “Border Watch” hotline with the intention of dishonestly influencing a Commonwealth public official in the exercise of the official’s duties as a Commonwealth public official contrary to s 135.1(7) of the Criminal Code 1995 (Cth) (“the Code”) (“the Dishonestly Influence Offence”). The maximum penalty for this offence is imprisonment for 5 years and/or 300 penalty units; and

2. Between about 30 August 2018 and 13 September 2018, the offender did attempt to obstruct, prevent, pervert or defeat the course of justice in relation to a judicial power, being a judicial power of the Commonwealth, contrary to s 43(1) of the Crimes Act 1914 (Cth) (“Crimes Act”) (“the Public Justice Offence”). The maximum penalty for this offence is imprisonment for 10 years and/or 600 penalty units.

2. The offender comes before the court for sentence.

3. The offender admits two further offences and asks the Court to take them into account when passing sentence for the Public Justice Offence, pursuant to s 16BA of the Crimes Act. These are:

1. That between about 1 July 2018 and 30 August 2018, the offender did make a false document, being parts of a notebook, with the intention to use it to dishonestly induce a person in the person’s capacity as a Commonwealth public official to accept it as genuine and if so accepted, to dishonestly influence the exercise of a public duty or function contrary to s 144.1(1) of the Code (“the Forgery Offence”); and

2. That on about 26 December 2018, the offender did an act intending to induce a person to be called as a witness in a federal judicial proceeding, “F1” (a pseudonym), to withhold true testimony contrary to s 37(3) of the Crimes Act (“the Influence Witness Offence”).

The Offender’s Background

4. It may be of assistance in understanding the offences which bring the offender before the court to consider some background.

5. The offender comes from a Pakistani family, and was born in Karachi on 24 November 1979. He is one of three sons, of which he is the middle son, and he immigrated to Australia with his family when he was 11 years of age. He is currently 40 years of age. At the time of the Dishonestly Influence Offence he was 37 years of age, and at the time of the commission of the balance of the offences he was 38.

6. The offender did well at school. He was the dux of his school, and school captain. He completed a Bachelor of Business degree and a Masters of Information Technology degree at the University of Technology Sydney.

7. He has been employed as an information technology consultant by Lane Cove Council, and by IBM. At the time of his offending, he was employed by IT services at the University of New South Wales (“UNSW”).

Background to the Dishonestly Influence Offence

8. The offender met a woman, F1, in November 2013. He commenced a romantic relationship with F1 which lasted for a number of years.

9. Apparently, in August 2015, F1 met another man, to whom I shall refer as “M1”. F1 brought her relationship with the offender to an end, and apparently commenced a relationship with M1. At the risk of stating the obvious, the offender did not take this development well. He was clearly obsessed with F1.

10. The offender reported to psychiatrists with whom he consulted for the purposes of these proceedings that he was haunted by both auditory and visual hallucinations regarding F1 and her relationship with M1. I will deal with the relevant aspects of the offender’s mental condition later in these reasons.

Facts of the Dishonestly Influence Offence

11. The offender felt that he needed to get M1 off the scene, in the hope that he could resurrect his relationship with F1.

12. On 9 January 2017, the offender made a telephone call to the "Border Watch” hotline, a service maintained by the Department of Immigration and Border Protection (as it was then known) (“the Department”) to enable members of the community to report suspicious or illegal activity.

13. In overview, the offender told the Border Watch officer with whom he was dealing that M1:

1. Conveyed extremist ideology to him;

2. Told the offender that he had been to Pakistan in June 2016 and undertaken weapons and physical training, including with guns;

3. Told the offender that he was in contact with Islamist groups while he was overseas, such as Hizbat Tahrir and Jamaat-e-Islami, and in addition was connected to a group in Australia;

4. Communicated an intent to travel overseas to fight non-believers; and

5. Advised the offender that he wished to obtain permanent residency so that he could remain in Australia and continue to spread his ideology to other Muslim people.

14. The information which the offender told the Border Watch hotline about M1’s purported extremist ideology and conduct in furtherance of that ideology was false, and the offender knew it to be false.

15. This conduct in summary constitutes the Dishonestly Influence Offence.

16. This was, in fact, the second occasion upon which the offender had made a false report in relation to M1 to Border Watch. On 4 October 2016, he provided an anonymous online report in relation to M1.

17. Following an analysis of the information provided by the offender, the National Security Allegations Team (“NSAT") at the Department located no further adverse information in relation to M1. NSAT referred the information provided in the offender’s report to external agencies for information purposes only.

The phone call to Border Watch

18. The following is a summary of the phone call to the Border Watch Hotline derived from the Agreed Facts.

19. The offender identified himself and stated that he had met a person who he later identified as M1, using his first name and surname on three occasions. The offender said M1 told him information which was “disturbing”;

20. The offender stated M1 had “conveyed some… very extreme ideology”, had taken a trip to Pakistan in June 2016, and “attended a camp there somewhere called Rhywun in Lahore” where he realised that there was a “bigger purpose in life” which was “to fight non-Muslims, which was very worrying”;

21. The offender stated M1 had told him that he had attended a “weapons, like a guns training camp in Peshawar”, and was “very eager to meet” the offender’s younger brother, as M1 was “interested in trying to convey this message to people who have a real influence in society…”

22. The offender told the operator that he was reporting M1 as this was the second time that M1 had purportedly expressed those views to him.

23. The operator asked the offender whether he was aware of any links between M1 and terrorist organisations. The offender again told the operator that M1 had trained in Peshawar, and that M1 had said that he was associated with a group called Jamaat-e-Islami. The offender said M1 said he had spent a month there and that M1 “obviously had a good time with these guys”. Further, the offender mentioned that M1 had said he was “in link” with a group called “Hizbut Tahrir”. The offender also said that M1 was communicating with “a group here”.

24. The operator asked the offender what sort of training M1 had undertaken in Pakistan, to which the offender responded that M1 had said he had taken part in “weapons training”, “some physical training”, and “boxing”. The offender then reiterated that M1 “said he wants to spread the message here…”, and that M1 wanted to travel to Pakistan, and then travel “with people that he knows” through Turkey and into Iraq and Syria in order to fight there.

25. The offender later stated that he had asked M1 “Are you referring to ISIS?”, and reported that M1 had said ISIS was a made up name, and he would be fighting with a “group of believers that are fighting for the right purpose”.

26. The operator asked the offender whether M1 was a permanent resident or a student, and the offender replied that M1 had told him that M1 was on a student visa, which was close to expiry. The offender reported that M1 was potentially in breach of his visa conditions by studying part time, and suggested to the operator that “you guys might want to have a look at that.”

27. In relation to M1’s visa status, the offender also reported that M1 was “eagerly trying to find a girl here so that he [can] get citizenship through marriage” and was “courting those relationships to get his visa”.

28. The operator then referred to a Departmental privacy statement, which the operator read to the offender, and to which the offender acceded.

29. Following that, the offender then provided personal details for M1 such as his date of birth, address, the name of his university, and his mobile phone number.

30. The offender then summarised the three messages that M1 had purportedly conveyed in the following terms:

1. That M1 agrees with Hizbut Tahrir, that Australian laws are wrong, and that “we need to have One Muslim nation, under Sharia Law.”

2. That M1 had expressed a need for Muslims to undertake physical and weapons training, as well as to “understand the message so we can go and help our brother[s] and sisters around the world.” And that M1 planned to travel to Turkey and “make it look like a holiday”, but to actually go across the border into Iraq and Syria.

3. That M1 had asked about the offender’s attitude toward Anzac Day, in which context he referred to Australian soldiers “killing your brothers and sisters”.

31. The offender stated that he had asked M1 whether he was concerned by deferring his studies to part time, which was contrary to his visa requirements. The offender said that M1 replied that this did not worry him.

32. The offender then reported to the operator:

“So he knows he’s in breach by doing that… because I think he’s supposed to be studying full time on his visa… but obviously … he’s using his time for a lot of other dangerous stuff”

33. The offender stated that M1 had advised the offender to refrain from using social media and messaging applications such as WhatsApp to discuss extremist ideology with him, as the government could track these. He stated M1 told him to only discuss extremist ideologies face to face, and to only discuss regular topics such as “girls” and “the gym” on social media.

34. As I have indicated, the information the offender told the hotline about M1’s purported extremist ideology and prior conduct in furtherance of that ideology was false, and the offender knew it to be false.

35. In fact, the offender had never met or spoken to M1. M1 did not support nor hold any extremist ideological views, and had never undertaken any military style training.

36. The offender provided the information to the hotline to dishonestly influence a Commonwealth public official in the exercise of the official’s duties as a Commonwealth public official to investigate wrongdoing by M1. The information provided by the offender was referred to the NSAT for review. The NSAT concluded that there was no new information to add since the previous allegation on 4 October 2016, and referred the telephone call to external agencies for information purposes only.

Background to the Forgery Offence

37. As I have previously indicated, at the time of his offending the offender was employed within the Information Technology Department at the University of New South Wales. He had worked there since June 2015.

38. In around January 2018, another male, Mr Nizamdeen, began working with the offender. At that time, Mr Nizamdeen was 25 years of age and the offender was 38 years of age.

39. Also employed in the IT Department of UNSW was a female, whom I shall refer to as F2. In March 2018, the offender met F2 and they became friendly, and began to socialise regularly.

40. F2 had apparently been to the University with Mr Nizamdeen, and they had been friendly at University during that time. Mr Nizamdeen had apparently expressed a romantic interest in F2, but she had told him that that interest was not reciprocated.

41. Sometime in April or May 2018, the offender and F2 went on a couple of dinner dates to see if their friendship could progress beyond its platonic stage. These interactions occurred over a 1 to 2 week period. F2 decided that she did not wish the relationship to proceed beyond the platonic stage and told the offender so. Notwithstanding this, they remained friendly.

42. In late June of that year, F2 went for an overseas holiday. While she was overseas, the offender sent F2 a number of messages in which he enquired as to whether F2 had been calling or texting Mr Nizamdeen from overseas. The offender’s messages at times exhibited that he was experiencing considerable angst at the prospect that F2 may have been in contact with Mr Nizamdeen.

43. In fact, while overseas F2 had no interaction with Mr Nizamdeen. The offender told F2 that he had seen F2’s name appear on Mr Nizamdeen’s phone as though she had contacted him.

Facts of the Forgery Offence and Subsequent Offences

44. Sometime between about 1 July 2018 and 30 August 2018, the offender created multiple handwritten entries in a 240-page spiral-bound notebook belonging to Mr Nizamdeen (“the Notebook”), with the intention that they would appear as though Mr Nizamdeen had created them.

45. The entries indicated that the author (purportedly Mr Nizamdeen) was preparing for, engaging in, or assisting with, a terrorist act.

46. The offender created small handwritten entries on at least 22 pages in the notebook, which already depicted Mr Nizamdeen’s ordinary notes relating to his work.

Forged entries

47. The offender’s entries included:

“4 more brothers joined ISIS group – Masha Allah”

“Call brother in Lakemba in Jihad discussion and ISIS recruiting”

“Get bomb and weapon training in Sri Lanka”

“Jihad purpose of life
Death for Allah = Paradise
Kill army and police and politicians”

“Keep recruiting for ISIS and Jamal”

“Win [F2] over to get marriage and PR and win her to Jihad cause”

48. Some extracts of the larger entries that the offender created are as follows.

49. On page 222:

Some days you will be angry, sum [sic] days sad, that’s life but use mood anger to focus and my focus is to get VISA then do Jihad against infidels and Kafirs. Also win over [F2] for marriage and convert her to Jihad, and join ISIS. Top priority [is] to spend time with her online and face to face.

50. On page 223, underneath the heading “Goals for 2018 – Kamer” there were a list of goals, including:

Go for 6 weeks [at the] end of year to Sri Lanka for weapons training, fighting skills, and [to] bring back material to win converts back to recruit for fighting. Also look for material on bomb making.

Recruit brothers and sisters and converts for ISIS.

Attack UNSW chancellery [sic] building Nov 27 2019 when I have PR and VISA.
Go to Europe and America in 2019 to do attacks and meet brothers in Jihad.

Australian army a joke, they rape/kill our brothers and sisters in Syria, Afghanistan and Iran, I will take revenge when I get PR (Nov 27 2019 attack)

51. On page 225, there was an entry which among other things reiterated a plan to conduct a terrorist attack on the UNSW chancellery.

52. On page 226, under the heading “Things to do in Sri Lanka/Aus (2018)” there was a list of matters relating to the possible preparation for, or engagement or assistance with a terrorist act, and strategies to remain undetected.

53. On page 227, under the heading “People to target at work” the names of other employees in the IT Department at the UNSW were listed.

54. On page 228, under the heading “Places to attack/Bomb (In Priority)” various well-known landmarks and places in Sydney and the names of prominent politicians were listed.

55. The entries written by the offender in the notebook constitute the Forgery Offence.

Purported discovery of the notebook and subsequent arrest of Mr Nizamdeen

56. On or prior to 30 August 2018, the offender placed the notebook next to a wall behind a set of drawers at his workplace.

57. On the morning of 30 August 2018, the offender purported to locate the notebook inadvertently, and brought the incriminating false entries in the notebook to the attention of other colleagues, including his supervisor. The supervisor contacted university security, who then contacted the police.

58. On 30 August 2018, police arrested and later charged Mr Nizamdeen with one offence of collecting or making documents likely to facilitate terrorist acts contrary to s 101.5 of the Criminal Code (Cth). The offence carries a maximum penalty of imprisonment of 15 years. The offender became aware of Mr Nizamdeen’s arrest shortly after it occurred.

59. While in custody, Mr Nizamdeen participated in an interview with police (ERISP), during which he repeatedly denied creating the notebook entries, and continually stated that the handwriting was not his.

60. On 31 August 2018, Mr Nizamdeen was brought before Waverley Local Court, and did not apply for bail, which was formally refused.

Purported assistance to police

61. The offender purported to assist police in their investigation of Mr Nizamdeen and did the following.

62. In the evening on 30 August 2018, the offender was asked to provide a witness statement to police in relation to the circumstances of his finding the notebook, and provided a four-page witness statement to police in which he stated that he inadvertently found the notebook belonging to Mr Nizamdeen earlier that morning. In the statement, the offender made representations about Mr Nizamdeen’s religious devotion and practices, and cast aspersions on Mr Nizamdeen’s social behaviour.

63. Prior to signing the statement, the offender was told by police that the jurat in the statement meant that what he stated in the statement was the truth, that he could be charged if he lied, and that he may be required to come to court to give the evidence in the statement. The offender indicated that he understood this, read the statement, and signed each page. After the statement was signed, the offender appeared quite anxious and asked police what would happen to Mr Nizamdeen. He was informed that Mr Nizamdeen was at the police station with investigators, and it was likely that he would be charged and bail refused.

64. On 3 September 2018, police attended UNSW and requested handwriting samples for comparison with the incriminating entries in the notebook from a number of employees including the offender. The police officers also informed employees that police wanted their contact details and, potentially, elimination samples of DNA and fingerprints.

65. Initially, the offender told police that he did not have any available handwriting samples, but could provide them if provided with more time. However, as police were about to leave the premises the offender approached them, and stated that he had just run back to fetch a notebook containing his handwriting. Police took photocopies of pages from the notebook and returned it to the offender.

66. On 4 September 2018, the offender attended a police station and provided a sample of his DNA, and a second handwriting sample for comparison. Police were not able to take the offender’s fingerprints at that time.

67. On 5 September 2018, the offender was requested to participate in a video walkthrough. The offender participated in a video walkthrough with two police officers at UNSW in which he demonstrated how he had, purportedly, found the notebook on 30 August 2018. The video walkthrough occupied approximately some 11 minutes.

68. On 6 September 2018, the offender contacted police by telephone and told them that:

“I just wanted to let you know that if there is anything that I can do to assist with your investigation I’m available to come… at any time today. I am happy to come down… this afternoon and have my fingerprints done if you have time.”

69. On 7 September 2018, the offender provided police with a sample of his fingerprints and a third handwriting sample for comparison.

70. On 10 September 2018, F2 told the offender that she had nominated the incorrect person in her statement dated 31 August 2018.

71. In that statement, F2 stated that in July 2018 she had a funny conversation with her female friend who asked her why she kept calling Mr Nizamdeen whilst she was overseas earlier that month, because the friend had seen Mr Nizamdeen’s call records. The female friend mentioned in F2’s statement was in fact the offender. The offender encouraged F2 to inform investigators, and brought F2 back to the police station to correct her earlier version.

72. On 11 September 2018, F2 provided a further statement correcting her earlier version.

73. On 12 September 2018, the offender contacted police to advise that he had provided a colleague’s handwriting sample by mistake on 7 September 2018. The offender told police that he had only realised the mistake that day.

74. On 13 September 2018, the offender attended a police station to be voluntarily interviewed. Prior to the interview, police informed the offender of the seriousness of the investigation and of the importance of telling the truth, as Mr Nizamdeen was presently remanded in custody and had been charged with a terrorism offence in relation to the notebook. Police informed the offender that the investigation into the notebook was still ongoing, and that if he was involved in the making of the notebook, or knew who was involved, he should tell the police. The offender stated that he understood the seriousness of the offence and the implications for him in relation to supplying a handwriting sample that did not belong to him, and that he wanted to do the right thing by reporting it immediately to police.

75. During the interview, the offender told police how he inadvertently located the notebook on 30 August 2018, he described his friendship with Mr Nizamdeen and F2 respectively, he denied that he was the author of the incriminating entries in the notebook, and he denied that he was involved in their creation. The offender said F2 and Nizamdeen were his friends. F2, in her interview on the same date, confirmed that they were friendly.

76. On 27 September 2018, a document examiner returned an “inconclusive result” after comparing handwriting samples of Mr Nizamdeen with the incriminating entries in the notebook.

77. On 28 September 2018, by consent, Mr Nizamdeen was granted conditional bail.

78. On 18 October 2018, a second document examiner concluded that the handwriting samples of Mr Nizamdeen did not match the incriminating entries in the notebook. On the following day, the charges against Mr Nizamdeen were withdrawn and dismissed, and he was released from custody.

79. The offender’s conduct in dealing with the Australian Federal Police following the Forgery Offence constitutes the Public Justice Offence.

Attempt to influence witness

80. On 4 December 2018, the offender was arrested and charged for his conduct in respect of the notebook. He was brought before Parramatta Local Court, and by consent was granted conditional bail.

81. The offender’s bail conditions included a condition not to associate with any person who may be called as a witness for the prosecution including, but not limited to, a number of named persons, of whom F1 was one.

82. On 26 December 2018, the offender followed F1’s brother from his home address in Westmead to a location at Chatswood. There he handed F1’s brother a letter addressed to F1, and requested that he provide it to F1. In substance, the letter requested that F1 not give any evidence against him which was deleterious to an assessment of his character by the court. This constitutes the Influence Witness Offence.

Resolving Factual Disputes

83. Notwithstanding that the matter proceeded by way of agreed facts on sentence, three issues were contentious. These were:

1. The Crown alleged that at the time of providing false information to police as part of their investigation into Mr Nizamdeen, the offender intended that the information would further incriminate Mr Nizamdeen in relation to the terrorism related offence with which he had been charged.

• The offender denies this allegation;

2. The Crown also alleged that when the offender created the false entries in the notebook, he intended for police to accept them as genuinely belonging to Mr Nizamdeen and, if so accepted, to dishonestly influence the exercise of police’s public duties and functions to investigate Mr Nizamdeen for offences, in particular, terrorism related offences.

• The offender asserts that the word “police” should be replaced with “Commonwealth entity”; and

3. The offender disputes the relevance of the words he told F2 while she was overseas in relation to the contact he perceived she had with Mr Nizamdeen.

84. I am conscious of the fact that in order to resolve these issues against the interests of the offender, I am required to do so on the basis that the matter has been established beyond reasonable doubt, and I have approached these fact-finding tasks accordingly.

85. I should note that later in these reasons where I have made factual findings against the interests of the offender, I have concluded that these matters are established beyond reasonable doubt.

86. As to the first matter in dispute, I am satisfied beyond reasonable doubt that the information provided by the offender to the police was provided by him with the intention that it would further incriminate Mr Nizamdeen in relation to the terrorism related offence with which he had been charged.

87. The offender’s information provided to the police, namely, that he had found the notebook without informing police as to the fact that he was the author of the incriminating entries, seems to me to inevitably have had the effect of further implicating Mr Nizamdeen in relation to the offence, and I so find. I shall elaborate on this issue later in these reasons.

88. I also find beyond reasonable doubt that when the offender created the false entries in the notebook, he intended for the police (my emphasis) rather than other Commonwealth officials to accept them as genuinely belonging to Mr Nizamdeen. The incriminating entries which the offender had made in the notebook of Mr Nizamdeen were of such nature and quality that he must have known that it was inevitable that, once it was provided to university authorities, it would in turn be provided to the police.

89. I shall come to discuss the various psychiatric evidence in the proceedings later in these remarks, but for present purposes I note that while psychiatrists were in agreement that the psychiatric disorder which affects the offender to some extent impaired his decision making processes, neither psychiatrist suggested that his mental state denied him the capacity to appreciate the obvious, namely, that once he had purportedly discovered the existence of the notebook and provided it to the authorities at UNSW, it was inevitable that its existence would be brought to the attention of police. I so find beyond reasonable doubt. I shall also elaborate on this issue later in these reasons.

90. As to the relevance of the words which the offender told F2 while she was overseas, I agree with the offender’s submissions that these are irrelevant, and as a consequence I have not brought them to bear in any manner in the sentencing task which confronts me.

Objective Seriousness of the Dishonestly Influence Offence

91. The Crown submitted that the objective seriousness of this offence was in the midrange. It did so on the following basis:

1. That the offending was planned and not spontaneous.

92. In that regard, it says by way of context that this was the second report which the offender to the Department made in respect of M1

93. The Crown also drew attention to the fact that the telephone call was lengthy insofar as it ran for 34 minutes, during which the offender gave extensive details of what M1 had purportedly told the offender, and also personal details of M1, such as his date of birth and his mobile phone number. The Crown contended that this conduct evidenced calculated and considered thought as to the information which he was providing to the authorities.

94. The Crown submitted that given the nature of the information which the offender provided to Border Watch, it must be inferred that the offender’s intention was to cause M1 to experience some form of harm of either a criminal or immigration nature.

95. The Crown also drew attention to the fact that during the telephone call on 9 January 2017, the offender made specific references to M1 training overseas with “Jamaat-e-Islami”, and having links with “Hizbut Tahrir”. These were not fictitious organisations. Jamaat-e-Islami is an Islamic movement that has engaged in violence in Pakistan, and has been accused of harbouring and supporting extremists. Hizbut Tahrir is an international Islamic fundamentalist organisation, which has been banned in a number of countries.

96. Both the Crown and the offender were in agreement that there was no appellate authority which cast light on the factors which may be relevant to an assessment of objective seriousness in offences of this nature.

97. That said, the offender proffered the following as being relevant to the analysis of objective seriousness:

1. The nature of the Commonwealth function to be exercised by the person sought to be influenced;

2. The manner in which the official is sought to be influenced and the seriousness of such an intended influence;

3. The way in which the offender acted in order to give effect to that intention; and

4. Any benefit gained to the offender, and any detriment caused to the Commonwealth and the community.

98. I accept that these are matters relevant to be considered in assessing the objective seriousness of the offending

99. The offender submitted that the objective seriousness of the Dishonestly Influence offence was in the low range. He submitted that the recipient of the call to the Border Watch hotline was a lower level official who fields calls from the public and directs them appropriately. As such, was not a person charged with making any particular decision on any particular case, such as an investigating police officer, or the Commissioner of Taxation, or the like.

100. I do not consider that this is the case. Rather, it seems to me that the official manning the phone was the first port of call for any information to be provided, but given the seriousness of the information provided in this case the recipient of the information can be seen as a conduit to those persons in authority who would make determinations as to the relevance and importance of the information provided. The offender must have realised this.

101. The offender also submitted that the report was not intended to influence the Border Watch official in any particularly serious way. This was so, the submission continued, as the allegations were false and the border watch official was carrying out a very preliminary function in a putative investigation. As such, it was contended, there was a natural limit to how far the allegations could go.

102. I do not accept that this is the case. Rather, it seems to me that the serious nature of the allegations which the offender was making, were intended to have serious consequences. This was so even if in fact they did not ultimately have such consequences.

103. It was also submitted by the offender that the report was not a part of an ongoing process and was not carefully planned. Rather, it was submitted that the report was ill-thought-out, crude, and unsophisticated.

104. Again, I do not accept that this is the case. On the contrary, as the Crown pointed out, the report had detail as to such matters as the personal information going to M1’s identity, and he had taken the trouble to investigate actual terrorist organisations in respect of which he sought to implicate M1.

105. Finally, the offender contended that it was relevant that the conduct led to no result adverse to M1 ensuing.

106. I accept that this is a matter to be brought into account.

107. I am in broad agreement with the Crown’s contentions as to the objective seriousness of the Dishonestly Influence Offence for the reasons which I have set out above. Thus, I am of the view that the objective seriousness of that offence is greater than that contended by the offender.

108. I find that the offender made the call to the Border Watch hotline with the intention that M1 would be simultaneously under the investigation by both police and immigration authorities.

109. In this regard, I note that the offender told Dr O’Dea, a psychiatrist retained by the Crown, that his interest was to get M1 into “some form of trouble”. In cross-examination he accepted that that trouble could only be from some form of authority.

110. I also note that the offender told Dr Henderson, a psychiatrist qualified by his solicitors, that he wanted M1 to “go away”. He said that by this process he would be able to spend more time with F1.

111. I accept the Crown’s contention, that the only way that this could be achieved was either by M1 being incarcerated or deported, or indeed both.

112. The offender gave evidence that all he sought to achieve by the Dishonestly Influence Offence was for M1 to receive a phone call from a person in authority.

113. I do not accept this evidence. A phone call could not achieve the offender’s aims.

114. In conclusion, I find that the objective seriousness of the Dishonestly Influence Offence to be slightly below the midrange.

Objective Seriousness of the Public Justice Offence

115. The Crown contended that the offending in relation to this offence was extremely serious and at the higher end of the scale of objective seriousness.

116. The Crown pointed to the following aspects of the offending as being relevant to that assessment:

1. That the offender’s conduct spanned over approximately two weeks and involved the offender interacting with the police on at least eight instances while purporting to assist with their investigation.

• In this regard, the Crown noted that as part of that purported assistance the offender provided information which suggested that Mr Nizamdeen was the author of the incriminating entries in the notebook;

2. That the offending was planned and not spontaneous.

• In this regard, the Crown pointed out that Public Justice Offence must be viewed in the context of the Forgery Offence which, it says, reveals significant planning and effort leading up to the commission of the Public Justice Offence. I shall return to this issue.

• Further, the Crown noted that the offender proactively contacted police to advise them that he was willing and happy to assist with the investigation in any way required;

• The Crown asserted that the offender was aware that Mr Nizamdeen had been arrested and was in custody in relation to the notebook during the entire offending period;

3. That as a result of the offender’s failure to reveal to police that he had in fact created the false entries, and despite having many opportunities to correct the position, Mr Nizamdeen continued to be remanded in custody in relation to an offence which he did not commit;

3. That it was through no action by the offender that Mr Nizamdeen was ultimately released from custody and cleared of wrongdoing; and finally

4. That the offender attempted to conceal his involvement in the offence.

• In respect of which the Crown pointed to the fact that the offender provided inconsistent information about the handwriting samples he provided to police, thereby potentially undermining the reliability of any handwriting comparison analysis.

117. The offender submitted that properly understood the authorities demonstrated that the question of objective seriousness of the Public Justice Offence must encompass two aspects in relation to the perversion of the course of justice:

1. The extent to which the intended actions had a tendency to affect the course of justice in a particular case; and

2. The extent to which the intended actions had the tendency to affect the course of justice more generally, that is to say, institutionally.

118. The offender went on to contend that in considering these issues comparison must be made between the course of justice that would have occurred but for the conduct of the offender, and the course of justice that would have occurred had the intended conduct been carried into effect.

119. The offender submitted that as the focus of the crime is on the tendency of the conduct to pervert the course of justice, the actual perversion that occurred is only relevant to the extent to which it assists the understanding of the tendency in question.

120. I accept the offender’s analysis of principle and did not understand the Crown to put that analysis in issue.

121. The offender contended that the objective seriousness of the Public Justice Offence falls below the midrange.

122. In that regard the offender pointed to the following matters:

1. That while the offender intended to provide a false statement to police, he did not genuinely intend for Mr Nizamdeen to be convicted; and

2. That the offender’s evidence was formed as part of a criminal case in circumstances where no crime had in fact been committed.

123. The submission continued that the case was always necessarily going to fail in circumstances where:

1. Mr Nizamdeen denied the authorship of the handwriting; and

2. A handwriting expert was always going to show that the handwriting was not that of Mr Nizamdeen.

124. The offender also relied on the fact that he was merely a potential civilian witness in a prosecution case, in contrast with cases where the person concerned was a judicial officer or police.

125. The offender also submitted that the offence did not concern bribery or corruption, or any abuse of process, rather it concerned the provision by the offender of false information to the police. The offender relied on the fact that the offence concerned only the provision of one written statement and various verbal statements to police, and was not committed in company with any others.

126. Finally, it was submitted that the offence was not extensively planned or calculated. This submission was made on the basis that the creation of the forgeries in the notebook was a separate matter from the offence which is the subject of the Public Justice Offence.

127. I do not accept that this is the case, after all it is the provision of evidence as to his alleged finding of that notebook, and his failure to inform police that he had in fact been the author of the incriminating entries in that notebook, that is at the heart of the offence.

128. I reject the contention of the offender that the offence was not extensively planned or calculated. I shall refer to this issue later in these reasons.

129. The offender accepted that what made the offence more serious, were the real and dire consequences of his actions for Mr Nizamdeen. He contended, however, that by the creation of the notebook he did not intend for Mr Nizamdeen to be arrested.

130. I do not accept that this is the case. On the final day of submissions, Mr Boulten of senior counsel who appeared for the offender, said that his client accepted “albeit through gritted teeth” that, possibly, police would become involved. This concession was well made, but understated. To my mind, it is inconceivable that the nature of the matters fraudulently inserted into the notebook would not have come to the attention of the police, and would almost inevitably result in Mr Nizamdeen’s arrest. I so find beyond reasonable doubt.

131. Moreover, by the time the offender had provided evidence to the police, he knew that Mr Nizamdeen had already been arrested and that Mr Nizamdeen had been arrested because of the entries that the offender had created in the notebook. And, the offender knew that Mr Nizamdeen was incarcerated, bail refused.

132. The offender accepted that the tendency of the conduct to pervert the administration of justice in relation to actual or contemplated proceedings against Mr Nizamdeen was serious. He nonetheless submitted that he did not in fact intend to affect the course of justice, but only acted with the intention that true evidence would not be brought to the attention of the court in future curial proceedings.

133. I do not accept that this was the case. It seems to me that the provision of the false information, in the knowledge that Mr Nizamdeen was already in custody, had the actual effect of extending that custody, and thus actually had a serious, deleterious effect on the administration of justice.

134. The offender also pointed to the fact that while his evidence that he found the notebook was a critical component of the prosecution case, nonetheless that case was weak, as in the absence of handwriting evidence confirming that the handwriting was that of Mr Nizamdeen, the prosecution case was bound to fail. As such, the offender submitted that the duration of the perversion of the course of justice was tolerably short, as it lasted no longer than it took the police to obtain the opinion of document examiners.

135. I do not accept this submission. The duration of the perversion needs to be considered against the background that it was having the effect of an innocent man being incarcerated in a maximum security prison.

136. Finally, as to the second aspect of the tendency to pervert the course of justice, that is, the tendency to pervert the course of judicial power of the Commonwealth (in an institutional offence) the offender submitted that his conduct only had a minimal tendency.

137. I accept that this is the case. The offender’s helpful written submissions on the objective seriousness of the Public Justice Offence understandably concentrated on the actual steps undertaken by the offender in the course of that offence.

138. The creation of the fictitious entries in the notebook by the offender was not, strictly speaking, part of the Public Justice Offence. That said, in my view, it is impossible to adequately consider the objective seriousness of the Public Justice Offence without taking the Forgery offence into account. At the risk of stating the obvious, but for the Forgery Offence, the Public Justice Offence would never have occurred.

139. For the same reasons, it is only by considering the Forgery Offence that the Public Justice Offence can be placed and considered in context.

140. The artificiality of any attempt to segregate consideration of the two offences, to my mind, is made all the more artificial by dint of the fact that I am asked to take into account the Forgery Offence in consideration of an appropriate sentence for the Public Justice Offence. Accordingly, I propose to take into account the Forgery Offence in my consideration of the objective seriousness of the Public Justice Offence.

141. What is crucial however, in undertaking a process that brings the Forgery Offence into account as providing context to the Public Justice Offence, is to ensure that there is no double counting when the Forgery Offence is brought into account, pursuant to s 16BA.

142. In order to avoid this I should make clear that I have brought the Forgery Offence into account within the rubric of the consideration of objective seriousness of the Public Justice Offence, and not separately in relation to the consideration of that offence pursuant to provisions of section 16BA. I raised this approach with the parties, who did not demur from it.

Conclusions on objective seriousness of the Public Justice Offence

143. In my view, the objective seriousness is considerably higher than that for which the offender contends.

144. The offender’s behaviour, as correctly categorized by the Crown, had the effect of deflecting the police from the truth of the fact that the fraudulent entries which the offender placed in the notebook were in fact, forgeries. Absent that forgery, Mr Nizamdeen never would have been incarcerated, and absent the offender’s conduct constituting the Public Justice Offence, that incarceration would have been brought more swiftly to an end. The imprisonment of an innocent man on such serious charges renders the offender’s conduct as more objectively serious than that for which he contends.

145. The offender is an intelligent man. He must have realised that his actions would lead to Mr Nizamdeen’s arrest and/or deportation. Again, he told Dr Henderson that he saw Mr Nizamdeen as a reason for why F2 was not talking to him. He said he wanted Mr Nizamdeen “gone”. That aim could only be achieved realistically by the methods to which I have referred.

146. He stated in evidence before me that he merely wanted Mr Nizamdeen dismissed from his position.

147. I do not accept this evidence. The offender agreed that when he made the false entries in the notebook, he knew that university authorities, including university security, would have no role in investigating the extremist beliefs or possible terrorist acts referred to in the notes.

148. I find beyond reasonable doubt that given the seriousness of the matters fraudulently entered into the notebook, the offender intended for Mr Nizamdeen to be arrested.

149. The incarceration of an innocent man as a consequence of the Public Justice Offence was a serious matter indeed, and as such constitutes a significant perversion of the course of justice.

150. I find the objective serious of this offence to be slightly above the midrange.

Relevant Sentencing Principles of Offences Against the Administration of Justice.

151. The parties were in agreement that the most serious of the offences was the Public Justice Offence. Such offences are considered serious as they strike at the heart of the criminal justice system. The maximum penalty of 10 years imprisonment for the offence can only be seen as reflecting the legislature’s view of the obvious seriousness of the offences.

152. Offences of this nature go to public confidence in the administration of justice which is vital for the welfare of society. Accordingly, the sentences imposed on offenders must reflect both specific and general deterrence such that a salutary warning is delivered to others who might consider such conduct.

Relevant Sentencing Principles of the Dishonestly Influence Offence

153. The parties were in agreement that there is little relevant appellant guidance as to the principles applicable to this offence.

154. The Crown submitted that it was relevant that section 135.1(7) was contained within the division headed “Other Offences Involving Fraudulent Conduct”.

155. It further submitted that the maximum penalty of five years imprisonment reflected the legislature’s view of the seriousness of the offence.

156. The Crown pointed out that it was not necessary for the official involved in the act, to, in fact, be influenced, in order for the offence to be committed. Rather, it is sufficient that the offender does “anything” with the relevant intention. The relevant intention, it was submitted, was to cause the person performing a public duty to act contrary to that duty.

157. I did not understand the offender to put these submissions in dispute.

Taking Into Account Other Offences

158. It was agreed between the parties that these offences should be taken into account by me in relation to the Public Justice Offence.

159. In taking those offences into account, it was also agreed between the parties that weight must be given to the need for personal deterrence for the offending, and also to reflect the community’s entitlement to extract retribution in the form of punishment for serious offending.

160. I shall bring the other matters into account accordingly, though significantly discounting the Forgery Offence for reasons which I have earlier discussed.

Sentencing Provisions

161. In sentencing the offender I am required to have regard to the matters set forth in part 1B of the Crimes Act, and more specifically, the matters set out in section 16A. The governing principle in section 16A(1) is the imposition of a sentence which is of “severity appropriate in all the circumstances of the offence.” Section 16A(2)(a) provides that I am to take into account the nature and circumstances of the offence. These have been described by me earlier in these reasons, and I shall proceed to sentence accordingly.

162. The Crown submitted that I was obliged to take into account that the two offences constituted a course of conduct consisting of a series of criminal offences of similar character (s 16A(2)(c)).

163. I do not accept that this is the case. The Dishonesty Influence Offence and the Public Justice Offence are both temporally significantly different, and involve a different victim.

164. The Crown also relied on the fact of the injury, and loss and damage resulting from the offence, on the victim (s 16A(2)(d) and s 16A(2)(e)).

165. In that regard, I note the victim impact statement of Mr Nizamdeen, who gives compelling evidence as to the trauma and emotional harm suffered by him as a result of his arrest and incarceration, which included being subject to adverse media reporting and adverse commentary by Australian politicians. As a result of the offending he was unable to return to the University of New South Wales where he had worked, and he left the country shortly after his release, notwithstanding the fact that he had previously applied for permanent residency. Mr Nizamdeen suffers flashbacks of his time in prison, which has affected his mental health. This is hardly surprising as part of his incarceration was in isolation in a maximum security prison. Mr Nizamdeen reports that as a result of this incident his US 5 year tourist visa has been cancelled, with the consequence that he cannot visit his fiancé who lives in the United States. He further reports that he is continuing to experience adverse social consequences now that he has returned to his native Sri Lanka. I take these matters into account.

166. The Crown also sought to rely on a victim impact statement provided by Mr Nizamdeen’s mother. In order to do so requires leave. I can see no basis for leave, which is refused. As a consequence I have not taken that statement into account.

Contrition and Guilty Plea (s16A(2)(f) and s 16A(2)(g))

167. The offender entered guilty pleas on 8 November 2019, in the Local Court.

168. In a general sense, a guilty plea may be relevant for two purposes, the first being its subjective value as evidence of genuine contrition and acceptance of responsibility, and the second being reflecting its utilitarian value, which is objective.

169. The offender gave evidence before me of his contrition, and gave evidence from which a realisation of the consequences of his actions was apparent.

170. I accept his evidence of contrition, and see his guilty plea as being further evidence thereof. I did not understand the Crown to put the offender’s contrition and remorse in issue.

171. I propose to discount the offender’s sentence by 25% to reflect the utilitarian value of the plea and to take his contrition into account in the instinctive synthesis process.

Antecedents

172. The Crown accepted that the offender had no prior convictions at the time of the offending in relation to the Dishonestly Influence Offence.

173. At the time of the Public Justice Offence, he had committed an offence of common assault, which was dealt with by way of a Conditional Release Order.

The Offender’s Mental Condition

174. The offender qualified Dr Anthony Henderson, a forensic psychiatrist, who provided a report to the Court, dated 12 July 2020. The Crown qualified Dr Jeremy O’Dea, who was also a forensic psychiatrist. Dr O’Dea provided a report dated 1 September 2020. Both psychiatrists had the benefit of conferring with the offender.

175. At the end of the day, there was little difference of opinion between the medical experts. They both concluded that the offender suffers from a Borderline Personality Disorder. Both experts also agreed that this disorder was causally linked to the offender’s offending behaviour.

176. The offender’s past and current state of mental condition may be relevant to the purposes of section 16A(2)(m) of the Crimes Act, in a manner summarised by McClellan CJ at CL in R v De La Rosa (2010) 79 NSWLR 1 [at 177].

177. In R v De La Rosa, His Honour stated that an offender’s mental condition may be relevant for the following reasons:

1. Where the state of a person’s mental health contributes to the commission of the offence in a material way; the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.

2. It may also have the consequence that an offender is an inappropri­ate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.

3. It may mean that a custodial sentence may weigh more heavily on
   the person. Because the sentence will be more onerous for that
   person, the length of the prison term or the conditions under which it
   is served may be reduced.

4. It may reduce or eliminate the significance of specific deterrence.

5. Conversely, it may be that because of a person's mental illness
   they present more of a danger to the community. In those
   circumstances, considerations of specific deterrence may result in an
   increased sentence.

178. It was agreed between the parties that each of the matters set forth by his Honour in points 1 to 4 above were relevant in the current sentencing task which confronts me, but the final matter, that is to say, community protection from the offender, was not.

179. It should be noted however, that there can be no suggestion that the offender’s psychiatric condition deprived him of his capacity to reason in relation to the offences which bring him before the court.

180. Dr Henderson opined that while the offender’s ability to consider the implications of his actions and their wrongfulness was compromised at the time of the offending, he was not completely bereft of the ability to navigate the moral wrongfulness of his actions. Indeed, the offender conceded in cross-examination that he knew at the time that he committed each of the offences that his conduct was wrong.

181. In relation to the Forgery Offence, the offender admitted that he knew that he was acting dishonestly.

182. In relation to the Influence Witness Offence, the offender admitted that he knew his conduct was in direct breach of the court order.

183. The offender says that he is still experiencing voices and seeing visions. Dr Henderson agreed that future control of the offender’s borderline personality disorder is dependent on him continuing to engage in appropriate therapy, and continuing to take prescribed medications. This is a factor which is obviously relevant to the twin issues of the offender’s prospects of rehabilitation and his risk of reoffending.

184. The Crown contended that in circumstances the offender’s diagnosis of psychiatric illness should not be treated as a significant mitigating factor on sentence, for the following reasons:

1. That the medical evidence showed that the offender was not deprived of his capacity to navigate the moral wrongfulness of what he was doing;

2. That his actions were, to use Dr Henderson’s expression, “goal driven”; and

1. That the offender’s continuing experiences of auditory and visual hallucinations, despite treatment, casts in doubt his likelihood of reoffending.

185. Both Doctors Henderson and O’Dea opined that the offender will require ongoing psychiatric treatment, including the taking of medicines.

186. Dr Henderson expressed the view that the offender had made significant progress in his treatment notwithstanding the suboptimal custodial environment in which it was being received. He reported that the offender accepts that he suffers from psychiatric illness, and that this acceptance motivates him to engage in the treatment in the long-term.

187. Dr Henderson’s opinion was that should the offender engage in weekly psychological therapy specific for borderline personality disorder, and take the prescribed medication, his personality disorder is likely to further improve, such that he will have a significantly lower risk of reoffending. He went on to express concerns as to whether the intensive psychological therapy required to treat the severe borderline personality disorder which afflicts the offender is available in the custodial setting. In that regard, he noted that the offender had been unable to access certain psychological treatment in recent months as a result of COVID-19 related limitations on professional visits.

188. Finally, he expressed the view that the hostile, custodial environment was generally counter-therapeutic to all relevant treatments which the offender requires.

189. Ultimately, Dr Henderson expressed the view that the offender’s risk of reoffending was low. This opinion was based on various factors which I shall summarise in the following terms:

1. That the offender did not have a significant history of prior offending, nor antisocial personality disorder, nor significant substance abuse history;

2. In view of the fact that the offender’s condition appears to have stabilised and is likely to improve with ongoing treatment, and the offender had experienced objective relief from treatment and developed insights into his condition; and

3. That the offender is motivated to continue that treatment in the long-term.

190. Dr Henderson said that his view that the offender’s low risk of further offending behaviour was reinforced by the fact that the offender had completed tertiary education, had been involved in full-time employment, and was a member of a supportive family. Dr O’Dea did not express a contrary view on this issue to that expressed by Dr Henderson.

191. The offender gave evidence before me that he had read the treatment plan proposed by Dr Henderson, which involves him seeing a psychiatrist on release. He indicated that he would comply with the plan, even to the point of consenting to be admitted to a psychiatric hospital should his condition deteriorate, if such course were recommended by a treating psychiatrist. Dr Henderson gave evidence that he would be prepared to accept the offender as a patient upon the offender’s release, and that he would carry out the psychiatric course of treatment which he has in mind.

192. I do not accept the Crown’s contention that the offender’s psychiatric condition does not constitute a significant matter in relation to the sentencing task which confronts me.

193. In my view, the psychiatric evidence provides a cogent explanation of the offender’s offending. It explains why an intelligent man would reason in such a preposterous manner so as to consider that his acts were an appropriate response to the situations which confronted him.

194. The psychiatric evidence is that the offender was in all probability significantly affected by his illness at the time of the offending. At that time he was experiencing feelings of abandonment, which is a factor which is characteristic of this illness. It was only in such a psychologically impaired state that he could reason that his proposed responses to his concerns were appropriate.

195. Thus, in my view, given the uncontradicted expert evidence that, first, the offender suffers from borderline personality disorder, and secondly, that such disorder was in all probability causative of the offending, this has important consequences for sentence. In my view, the uncontradicted evidence of the psychiatric disorder with which the offender was afflicted at the time of the commission of the offences should be treated in the manner described by McClellan CJ at CL in De la Rosa, namely as:

1. Lowering the offender’s moral culpability;

2. Not making the offender an appropriate vehicle for general deterrence;

3. Having the effect that a custodial sentence may weigh more heavily on him; and

4. Reducing the significance of general deterrence.

196. The Crown did not demur from the proposition that the principles in De La Rosa had been engaged, the difference in approach between the parties was as to the effect on the sentencing task of that engagement.

197. As I have earlier indicated, I believe that the Crown’s approach to the issue of the offender’s mental health is unduly restrictive. I accept the offender’s contention in relation to the mental health issue and propose to give it the prominence in the sentencing synthesis for which the offender contends.

Determining the Appropriate Punishment

Prospects of rehabilitation and risk of reoffending

198. I accept the opinion proffered by Dr Henderson that provided he maintains his psychiatric treatment, the offender’s prospects of rehabilitation are good, and his risk of reoffending is correlatively low.

199. I share Dr Henderson’s opinion for the reasons articulated by him which can be summarised as follows:

1. That the offender has demonstrated an improvement in his mental functioning, together with improving the regulation and amelioration of any psychotic-like symptoms under treatment;

2. That he accepts that he suffers from a psychiatric condition, and appears motivated to continue to engage in treatment in the long-term

3. That should the offender engage in weekly psychiatric or psychological therapy specific for borderline personality disorder, his personality disorder is like to further proved improve;

4. That the offender does not have a significant prior offending history nor antisocial personality disorder or significant substance abuse history;

5. That the offender appears motivated to continue his treatment in the long-term;

6. That the offender has expressed remorse in relation to his offending and an insight into the effects of it; and

7. That the fact of the offender has completed tertiary education, has engaged in full-time employment, and has a supportive family.

200. The seriousness of the offending is such that gaol is the only appropriate punishment which can be imposed on the offender. Neither party suggested to the contrary.

201. This matter tosses up the ever present tensions in the sentencing process between punishment and rehabilitation.

202. The offences to which the offender has pleaded guilty are serious offences, and his conduct should, and does, attract the court’s and the community’s unequivocal denunciation.

203. The offender’s actions have caused an innocent man to be incarcerated in a maximum security gaol. For this unforgivable behaviour he deserves appropriate punishment by way of a full-time custodial sentence.

204. On the other hand, if the offender carries into effect the treatment program proposed by Dr Henderson, as he has undertaken to do, then there is every reason to believe that the offender can be rehabilitated, and resume his former pro social life. His intelligence, educational achievements, and ongoing family support all point in that direction.

205. I am also of the view that given the cardinal role of his psychiatric treatment to his future, that there is benefit in him receiving that treatment in a non-custodial context, and to receive it in that setting as soon as possible, consistent with the dictates of justice.

206. The issue easily stated, but difficult to resolve, is what sentence is necessary to give effect to the applicable principles of sentencing to which I have earlier referred, recognising the inherent tension between punishment and rehabilitation.

207. In this regard, it must also be borne in mind that the offender has already been incarcerated for a lengthy period while bail refused, and awaiting his sentence.

208. At the end of the day, the sentencing task in this matter, as it often does, involves a degree of a judicial leap of faith, by which I mean to convey a trust that the offender will carry out his undertaking to continue his psychiatric treatment and through that process be returned to being a contributing member of the community. I have decided that is that it is appropriate to take that leap.

Consideration of appropriate non-parole period

209. In structuring an appropriate sentence in this matter the non-parole period it is self-evidently of great significance. In the present case I consider that a longer period of parole than might otherwise be considered usual is appropriate.

210. I take this view as such a lengthy period of parole will help to ensure the offender’s compliance with his undertakings in respect of his future psychiatric health care. As a consequence, I am of the view that it is both in the interest of the offender and in the public interest that such a non-parole period be set.

211. I am also of the view that it is appropriate to bring into account COVID-19 issues in relation to the issue of arriving at an appropriate non-parole period.

212. In order to ensure that coronavirus does not enter the NSW custodial system, face-to-face visits have for many months now been suspended. For the same reason prisoners have been subject to longer periods of lockdown.

213. In one sense, the hardships which the offender confronts in this regard are no different to that of other inmates, which hardships I acknowledge. That said, the period of no personal visits and increased lockdown will constitute a significant part of the offender’s non-parole sentence. In my view, the high percentage of his term which will have been served in these onerous conditions is appropriate to be brought into account in relation to the determination of an appropriate non-parole period.

214. In addition, the evidence was that COVID-19 restrictions were also having a deleterious effect on the offender’s access to psychological treatments and courses which he is undertaking within the custodial setting. I have also taken this matter into account.

215. Finally, the parties were agreed that it is appropriate to take into account the fact that the offender’s mental condition would make his period of incarceration more onerous than usual. I accept that this is the case and will also bring that factor into account.

Appropriate Commencement Date

216. The offender has spent 1 year, 10 months, and 10 days (which equates to 680 days) in custody for these offences. I shall take this into account accordingly in the sentence which I am about to pronounce.

Aggregate Sentence

217. I propose to deal with this matter by way of an aggregate sentence. I have taken this course as, in my view, this approach best accommodates the requirements of proportionality, accumulation, concurrence and totality. Accordingly, I formally indicate that such a sentence is being imposed.

Indicative sentences

218. I am also required to indicate the sentences I would have imposed for each offence, had separate sentences been imposed rather than an aggregate sentence. In setting forth the following indicative sentences and the aggregate sentence, I have taken into account the matters set forth earlier in these reasons in relation to the objective seriousness of the offences. Aggravating and mitigating factors to which I have referred have also been taken into account.

219. As to the discount for the early plea, this has been applied to each indicative sentence and thus derivatively to the aggregate sentence (with rounding down in certain circumstances to the offender’s benefit).

220. The offences attached on the s 16BA schedule to the Public Justice Offence have also been taken into account.

221. In arriving at both the indicative sentences and the aggregate sentence, I have attempted to carry into effect the instinctive synthesis described by McHugh J in Markarian v The Queen (2005) 228 CLR 357.

222. The following indicative sentences are head sentences and are as follows:

1. For the Dishonestly Influence Offence, 2 years imprisonment.

2. For the Public Justice Offence, 4 years imprisonment.

223. Arsalan Khawaja,

1. You are convicted of the offences which bring you before the court.

2. You are sentenced to a term of imprisonment of 4 years and 6 months, with a non-parole period of 2 years and 6 months.

3. I direct that such a term of imprisonment shall commence on 27 December 2018 and that the non-parole period shall expire on 26 June 2021, with the balance to expire on 26 June 2023.

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Decision last updated: 24 November 2020