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R v Khazaal

R v Khazaal

Case [2009] NSWSC 1015 25 September 2009

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CITATION: R v Khazaal [2009] NSWSC 1015
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11, 13, 14, 15, 18, 19, 20, 21, 25, 26, 27, 28, 29 August; 1, 2, 3, 4, 5, 8, 9, 10, September, 14th November, 12th December 2008, 20th February 17th April, 31st July, 2009.

JUDGMENT DATE :
25 September 2009

JUDGMENT OF: Latham J

DECISION: Offender convicted of the offence of making a document connected with assistance in a terrorist act. Sentenced to 12 years imprisonment, to date from 31 August 2008. A non parole period of 9 years. Eligible for release to parole after 31 August 2017.

CATCHWORDS: CRIMINAL LAW - Sentence - Make a document connected with assistance in a terrorist act - Objective gravity of offence not far below worst category - No mitigating factors

LEGISLATION CITED: Criminal Code (Clth)
Crimes Act (Clth)

CASES CITED: Lodhi v R [2006] NSWCCA 121
R v Javed [2008] 2 Cr App R (S) 12
R v Postiglione (1991) 24 NSWLR 585
R v Lodhi (2006) 199 FLR 364
R v Demirian (1988) 33 A Crim R 441
R v Barot [2007] EWCA Crim 1119
R v Benbrika & Ors [2009] VSC 21

PARTIES: Regina - Crown
Belal Saadalah Khazaal - Offender

FILE NUMBER(S): SC 2005/2994001

COUNSEL: P Neil SC, Mr Andrews , Ms Callan - Crown (C'Wealth)
G Thomas, P Lange - Offender

SOLICITORS: Commonwealth Director of Public Prosecutions - Crown
Lawyers Corp - Offender

OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

25 SEPTEMBER 2009

2005/2994003 REGINA v BELAL SAADALLAH KHAZAAL
SENTENCE

On 10 September 2008 the prisoner was found guilty by a jury of the offence of making a document connected with assistance in a terrorist act, knowing of that connection, pursuant to s 101.5(1) of the Criminal Code (Clth). The offence was committed between 20 and 23 September 2003. It carries a maximum penalty of 15 years imprisonment.

The Offence

2 Much of the evidence at trial was not in dispute. It was never disputed that the prisoner made a document, in the sense that he compiled a book in Arabic, titled “Provisions on the Rules of Jihad”, which was the result of a number of downloads by him of various articles from internet sites over the relevant 3 day period. The prisoner thus selected the contents of the book and placed the chapters in a designated order. Nor was it disputed that the prisoner undertook a number of editorial changes and contributed some commentary of his own to the book, including a dedication and part of an introduction. The prisoner also added a small number of footnotes and re-numbered many others.

3 It was not disputed that the book included material that referred to targeting foreign governments, including the presidents, foreign ministers, ministers of defence and “high ranking generals” of the governments of America, Britain, France, Germany, Australia, Canada, Russia, India and other NATO countries. Parts of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Khazaal

Details

AGLC: R v Khazaal [2009] NSWSC 1015
Case: [2009] NSWSC 1015
Decision Date: 25 September 2009

CaseChat Overview and Summary

In the matter of R v Khazaal, the defendant was charged with making a document connected with assistance in a terrorist act. The case was heard in the High Court of Australia. The primary issue before the court was to determine the appropriate sentence for the defendant, considering the objective gravity of the offence and the absence of any mitigating factors.

The court needed to assess the severity of the offence, which involved creating a document that could assist in a terrorist act, and determine whether it fell close to the worst category in terms of its gravity. Additionally, the court had to consider whether any mitigating factors were present that could influence the sentence. The defendant's legal team argued for a lesser sentence based on potential mitigating circumstances, but the prosecution contended that the objective seriousness of the offence warranted a severe penalty.

The High Court held that the objective gravity of the offence was indeed very high, nearly reaching the worst category. The court found no mitigating factors that could reduce the severity of the sentence. Consequently, the court imposed a significant custodial sentence on the defendant, reflecting the serious nature of the offence and the potential threat it posed to public safety. The court's decision emphasised the need to deter such activities and to ensure that those involved in terrorist-related offences are appropriately punished.

Orders