R v Lawrence

[2023] NSWSC 1428

Supreme Court

New South Wales

Medium Neutral Citation:

R v Lawrence [2023] NSWSC 1428

Hearing dates:

20 July 2023

Decision date:

23 November 2023

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

For the offence contrary to s 101.6(1) of the Criminal Code Act 1995 (Cth) and taking into account the offence contrary to s 80.2C(1) of the Criminal Code Act 1995 (Cth) pursuant to s 16BA of the Crimes Act 1914 (Cth), the offender is sentenced to a term of imprisonment for a period of 6 years, backdated to commence on 23 May 2021 and to expire on 22 May 2027, with a non-parole period of 4 years and 6 months, to expire on 22 November 2025.

Catchwords:

SENTENCING – Terrorism offence – Doing acts in planning or preparation for terrorist acts – Advocacy of terrorism act/offence taken into account on 16BA schedule – Where offender has not resiled from belief system of violent jihad – Poor prospects of rehabilitation – Catastrophic spinal cord injury suffered in custody – Impact of childhood deprivation and mental health diagnoses upon moral culpability

Legislation Cited:

Crimes Act 1914 (Cth), ss 16A,16BA, 16F, 17A, 19AG

Crimes (Administration of Sentences) Act 1999 (NSW), s 10

Criminal Code Act 1995 (Cth), ss 80.2C, 101.6, 105A.23, 119.4

Cases Cited:

Alou v R (2019) 101 NSWLR 319; [2019] NSWCCA 231

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Elomar v R [2014] NSWCCA 303

Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360

R v El Matari [2021] NSWSC 1260

R v Elomar [2010] NSWSC 10

Xiao v R (2018) NSWLR 1; [2018] NSWCCA 4

Category:

Sentence

Parties:

Rex
Tukiterangi Lawrence (Offender)

Representation:

Counsel:
J Hannebery KC; R Taylor (Crown)
R Wilson SC; R El-Choufani (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s):

2021/46726

JUDGMENT

1. HIS HONOUR: On 12 August 2023, Tukiterangi Lawrence (the offender) pleaded guilty to a count that between about 6 June 2019 and 1 October 2019 he did acts in preparation for, or planning, a terrorist act or acts, contrary to s 101.6(1) of the Criminal Code Act 1995 (Cth) (the indictment offence). It is a “rolled up” count which encompasses the following two particulars, which I will refer to as “Particular (a)” and “Particular (b)”, that he:

Between about 6 June 2019 and 24 June 2019 at Goulburn in the State of New South Wales, intentionally did acts in preparation for, or planning, a terrorist act or acts, namely an action or threat of action in Australia directed at Corrective Services NSW officers, which involved the offender attempting to recruit Witness A to obtain information about NSW Corrective Services officers upon Witness A’s release from prison; and

Between about 3 September 2019 and about 1 October 2019 at Goulburn in the State of New South Wales, intentionally did acts in preparation for, or planning a terrorist act or acts, namely an action or threat of action in Australia in support of Isaac El Matari’s plan for an extremist Islamic insurgency.

2. The maximum penalty for the offence is life imprisonment: s 101.6(1) of the Criminal Code.

3. For the purposes of s 16BA of the Crimes Act 1914 (Cth), the offender also admitted his guilt to an offence, which is to be taken into account in his sentence. That offence, which predates the indictment offence, is that between about 30 November 2018 and about 18 March 2019, he intentionally advocated the doing of a terrorist act or the commission of a terrorism offence referred to in s 80.2C(2) of the Criminal Code, being reckless as to whether another person will engage in a terrorist act or commit a terrorism offence referred to in s 80.2C(2) of the Criminal Code, contrary to s 80.2C(1) of the Criminal Code (the advocating terrorism offence). The maximum penalty for that offence is 5 years imprisonment.

The offender’s status at the time of and following the offences

4. The offender is presently aged 27. At the time of the advocating terrorism offence, he was aged 22 and was in the community serving the parole component of an aggregate sentence of imprisonment for two offences: demanding property by force in company with intent to steal and being armed with intent to commit an indictable offence (the demanding property and armed with intent offences). His parole was revoked on 17 March 2019 and he was returned to custody the following day to serve the balance of his parole, which was a period of 5 months and 5 days, which expired on 21 August 2019. On 30 July 2019, the offender was sentenced for a count of stalk/intimidate in a domestic context to 18 months’ imprisonment, to commence on that date and conclude on 29 January 2021, with a non-parole period of 9 months, to expire on 29 April 2020. Following a severity appeal in the District Court, the offender was sentenced on 25 March 2020, for two counts of intimidate police officer in the execution of their duty to 18 months’ imprisonment, to commence on 29 January 2020 and expire on 28 July 2021, with a non-parole period of 9 months, to expire on 28 October 2020.

5. At the time of the indictment offence, that is, between about 6 June 2019 and 24 June 2019 and between about 3 September 2019 and about 1 October 2019, the offender was aged 22 and 23 respectively and was an inmate in the Goulburn High Risk Management Correctional Centre (HRMCC). He was charged with the indictment offence (at that stage, it was two separate offences) on 18 February 2021 and bail refused. On 27 November 2021, the offender suffered a catastrophic spinal cord injury whilst in detention which rendered him a tetraplegic. He was granted bail in the Supreme Court on 7 April 2022. On 3 May 2022, Bellew J revoked an interim detention order that had been made on 21 August 2019 and made an interim supervision order in respect of the offender, who was released from custody the following day (4 May 2022). On 3 August 2022, Lonergan J made an extended supervision order (ESO) for a period of 3 years, to date from 4 August 2022.

6. On 27 January 2023, the offender was arrested for breaching his bail conditions and three counts of breaching the conditions of the ESO. His bail was revoked the following day and he has remained in custody since then, at the Long Bay Hospital Correctional Centre (the Long Bay Hospital). On 19 July 2023, he was sentenced for four breaches of the ESO and an offence of intentionally distributing an intimate image without consent, for which he received an aggregate sentence of imprisonment of 2 years, to date from 27 January 2023 and conclude on 26 January 2025, with a non-parole period of 12 months, concluding on 26 January 2024.

The agreed facts

7. A statement of agreed facts was tendered by the Crown at the sentence hearing which is to the following effect. The entirety of the agreed facts as to the relevant conduct for each offence is not summarised in this judgment.

Background

8. When the offender was aged about 14 or 15, he converted to Islam. At the time of the offending, he described himself as a Salafi-Jihadist. ^[1] He adhered to a fundamentalist interpretation of Islam, an aspect of which was that Muslims were obliged by their religion to undertake violent jihad, which included participation in a violent offensive struggle to promote Salafi-Jihadi ideology globally, and thus including Australia. The act or acts in planning or preparation for a terrorist act(s), was or were done with the intention of advancing violent jihad through the plans that were the subject of the indictment offence.

   1. According to the agreed facts: “The term ‘Salafi/Salafist’ comes from the word ‘salaf’, which means predecessor or ancestor. In Islamic terms, salaf refers to the first three generations of the Muslim community, who are considered to have led exemplary Muslim lives.”

9. Islamic State was a Salafi-Jihadi organisation that instructed its followers that they had a religious duty to travel to territory associated with it or, if that was not possible, to attack unbelievers in their own countries. It is a proscribed terrorist organisation.

The advocating terrorism offence

10. The agreed facts of the offences are summarised in the order in which they were committed, so that the first is the advocating terrorism offence (between about 30 November 2018 and about 18 March 2019). A summary of the offender’s conduct in respect of the advocating terrorism offence, as itemised in the agreed facts, is as follows:

“a.   The offender used various social media platforms and forms of communication to promote and encourage the doing of a terrorist act or the commission of a terrorism offence, namely an act or offence that would involve the following:

i.   preparation for violent jihad;

ii.   the establishment of an ‘Islamic brotherhood’ which adhered to fundamentalist sharia law and promoted violent jihad;

iii.   physical training for violent jihad;

iv.   the following steps ‘Train for fisibilliah ^[2] and prepare…buy guns eqipt the brothers, Fight the kafr ^[3] to spread the religion of Allah for the ummah to be victories’. The offender sent a screenshot of this to Tamer Muhammad;

v.   the carrying out of actions listed in screenshots of ‘The Terrorists Handbook’ including the preparation of chemicals, explosive recipes, impact explosives, low order explosives, delays, explosive containers, advanced uses for explosives, projectile weapons, rockets, and canons. The offender sent a screenshot of ‘The Terrorists Handbook’ to Tamer Muhammad;

vi.   physically violent punishments for people who leave ‘the jammah’ ^[4] including ‘death lashes ect’;

b.   The offender was reckless as to whether another person reading his messages or posts or communications would engage in a terrorist act or commit a terrorism offence.

c.   The offender believed in violent jihad and subscribed to an extremist form of Islam at all relevant times.”

Context

2. The agreed facts define “fisibilliah” as: “an Arabic expression meaning ‘in the cause of Allah’.”

3. “Kafr” means unbeliever. It is also sometimes spelt “kafir” or “kuffar”.

4. This term is not defined in the Agreed Facts. I presume it is a reference to “jama’ah”, meaning “congregation”.

11. The offender used a particular Apple phone (the black phone) and had three “Apple IDs”. He was active on WhatsApp and Facebook. Located on the black phone were four images he had taken of himself between December 2017 and February 2018, in which he is standing and facing the camera. In the first image, dated 15 December 2017, he is using a gesture widely recognised as a symbol of support for Islamic State. In the second image, taken on 16 January 2018, he is wearing a t-shirt bearing the words “Muslim Brotherhood” with an image of two crossed rifles that appear similar to AK-47 assault rifles. In the third and fourth images, taken on 14 and 19 February 2018, he is wearing a t-shirt bearing the words “Al-Shabaab” with a silhouette underneath of a rifle similar to an AK-47. Al-Shabaab means “the boys” or “the youth” in Arabic. It is also a Somali-based jihadist group that was a listed terrorist group.

12. On 22 February 2018, the offender was arrested for the offences of demanding property and being armed with intent and was refused bail. On 8 March 2018, ^[5] he received an aggregate sentence for those offences of 18 months’ imprisonment backdated to commence on 22 February 2018, with a non-parole period of 6 months which would expire on 21 August 2018. On 21 August 2018, the offender was released to parole and an officer of Community Corrections (his CCO officer) commenced his supervision.

    5. The offender’s bail chronology, which was tendered by the Crown, records the date of sentence as 1 March 2018.

13. Following his release, the offender resumed using his black phone to search for and download content related to his beliefs. On 3 October 2018, he searched online the words “jihad muslim sunni wouts [sic]” and took a screenshot of the flag of Islamic State.

14. On 3 December 2018, the offender captured multiple images of quotes by Anwar Al-Awlaki superimposed upon images of him. Mr Al-Awlaki was a Yemeni-American cleric who preached Salafi propaganda. In late 2009, he pledged loyalty to Nasr al-Wuhayshi, who was the leader of al-Qa‘ida in the Arabian Peninsula, and overtly or covertly encouraged those who wished to undertake terrorist activities against western targets. Mr al-Wuhayshi became a “specially designated global terrorist” on 16 July 2010 and was killed in September 2011 in a US drone strike.

15. A photograph of the offender wearing a t-shirt bearing the words “Al-Shabaab”, together with an image of a rifle resembling an AK-47, was later located in the black phone with a date of 15 December 2018.

16. On 16 January 2019, during a parole interview with his CCO officer, he stated that he was studying to become a sheik, that he had Salafi beliefs and described Salaf as being “middle ground”. He stated that he did not support violence.

17. On 23 January 2019, in a further interview with his CCO officer, the offender stated that corrections staff would think the course he was studying was extreme, but he did not think so; he desired revenge and justice and agreed with the idea of an “eye for an eye”, but struggled to reconcile this with the principle of forgiveness in Islam; he believed in Sharia law, although this could only be implemented in a country where it was supported.

18. Located in the black phone were two screenshots of YouTube videos dated 1 February 2019. One, titled “The fall of Islamic State”, depicted multiple males brandishing firearms, with the caption “to fight for its declared domain”. The other, titled “Enforcing Sharia in Raqqa: The Islamic State”, depicted males brandishing firearms, a sword and the Islamic State flag.

19. On 27 February 2019, the offender participated in an interview with his CCO officer, in which he stated that he was committed to Sharia law but would abide by the law of the land. He stated if he stole, he would chop off his hand if he was in an Islamic state, which “doesn’t exist”. He described himself as a “Jihad Salifesi”.

Conduct in respect of the advocating terrorism offence

20. The evidence that establishes the offence constitutes exchanges on social media platforms and other forms of communication to promote and encourage the doing of a terrorist act or the commission of a terrorism offence.

21. On 30 November 2018, in a WhatsApp conversation with contact “Hamzah El Salih”, the offender stated:

“… start training with me and the brother boxing kickboxing ect get us fit slowly prepare for jihad akhi get ready emotionally spiritually and physically my brother in sha allah

Be prepared lets make the path for the ummah call to the proper aqeedah and get ready to fight for allah”

22. When cautioned by Hamzah El Salih to “[k]eep the intention and cause in your heart, at least until the time arises. Don’t bring suspicion to yourself”, he replied:

“That’s the thing akhi allot of people are not ready the just say wait wait wait … The best deed is jihad … If everybody keeps saying wait wait they will never be ready what are we waiting for are we waiting for a just ruler to say let’s go we can see how the Muslim and the ummah are getting oppressed wide spread but we are not doing anything about it”

23. On 28 December 2018, the offender had an exchange with Tamer Muhammad via WhatsApp, in which they discussed the implementation of an “Islamic society”. The offender said:

“… to implement it in our lives like you said is permissible and with In our community but we need some one also with sound knowledge of sharia ^[6] and and extensive studies in fiqh ect becase it is actually impermissible to carry out a punishment without sound knowledge of the punishment and ect for difrent casses there are different punishment …”

6. The agreed facts state that; “Shari’ah literally means path, and in Islamic legal terms it means the path that should be followed to act in accordance with God’s will. In common parlance it has simply come to mean Islamic law.”

24. On 4 January 2019, the offender wrote the following in the “Notes” section of the black phone and sent it to Tamer Muhammad:

“1. First thing raise money

2. Bye land houses masjid ect

3. Start a Islamic community

4. Train for fisibilliah and prepare

5. Bye guns eqipt the brothers

6. Fight the kafr to spread the religion of Allah for the ummah to be victories”

25. On 12 January 2019, the offender posted under his Facebook account “Hamza Lawrence”, an image of a male, overlaid with the words: “We are Muslim you kill us you rape us you invade our lands when we fight back you call us terrorists”.

26. On the same date, the offender sent a WhatsApp message to a contact named “Bro”, in which he quoted passages from the Qur’an with a particular commentary that stated it was obligatory “to fight in Jihad against the evil of the enemy who transgress against Islam”, promising “full rewards” in the “Hereafter”. Other parts counselled against patience with non-believers, affirming that instead they should “fight and kill the idolators wherever you may find them”. The passage was of considerable length and quite specific as to the need to kill non-believers.

27. On 23 January 2019, in a WhatsApp exchange with Tamer Muhammad, the offender said:

“We should never worry about the outcome that’s not important but worry about obeying what allah says and that is fighting in his path … I think we should start training a bit harder in sha allah … Because it’s a sin f we don’t prepare properly”

28. On 24 January 2019, in a WhatsApp text exchange with “Hamzah El Salih”, the offender observed that jihad must be practised globally and must be part of the life of a true Muslim.

29. On 26 January 2019, the offender posted on his Facebook account “Hamza Lawrence” a complaint that “brothers and sisters” are being attacked overseas and, quoting from the Qur’an:

“… we have this Kafr country were our woman and brothers are still being oppressed... Allah says, ‘Fighting has been prescribed upon you and you dislike it, but it is possible that you dislike a thing that is good for you and you love a thing that is bad for you. Allah knows and you know not.’”

30. On the same date, in an exchange with Mohamed Hawchar, the offender said:

“Yes it’s a bit red hot how I speak but I do not fear the taghut ^[7] my complete trust is in allah that’s why I don’t hide the fact about jihad because allah has actually told us to fihht in the Quran and obey his laws not the laws of the taghut”.

7. The agreed facts define the term “taghut” as: “A Qur‘anic term for false god or idol, but can be used in political terms to mean a tyrant who oppresses people.”

31. On 27 January 2019, in a WhatsApp exchange with Tamer Muhammad, the offender quoted passages from a book written by Yusuf al-’Uyari, ^[8] which was the subject of a speech by Anwar al-Awlaki, that called for continuous armed jihad on the part of Muslims until the “Day of Judgment”.

    8. The Saudi jihadist ideologue and founder of al-Qa’ida’s Saudi branch. He was killed by Saudi security forces in 2003.

32. In another exchange with Tamer Muhammad on the same day, the offender related passages from a book he was reading that advocated the killing of various groups of non-believers.

33. On 28 and 29 January 2019, the offender posted on his “Hamza Lawrence” account references to books he was reading, concerning Jihad. On 29 January 2019, he sent messages to Tamer Muhammad referencing particular chapters of one of the books. One chapter was titled: “The virtues of killing a non-believer for the sake of Allah”.

34. On 4 February 2019, the offender sent screenshots to Tamer Muhammad of multiple sections of the publication “The Terrorist’s Handbook”, including chapters concerning the manufacture of explosives.

35. On 11 February 2019, the offender posted on his Facebook account “Hamza Lawrence” that he had decided to “save a little bit of money and then do Hijra ^[9] for the sake of Allah”, meaning that he wanted to join Islamic State.

    9. The agreed facts explain: “The term ‘hijrah’ generally means migration (and particularly relates to the migration of Muhammad and his companions from Mecca to Medina in 622 CE). Abu Bakr al-Baghdadi called on Muslims to perform hijrah to join Islamic State.”

31. On 8 March 2019, the offender texted his wife, stating:

“if youse have no back bone to go fight for allahs sake donate and give zakat for the sake of Allah for the sincere brothers that want to help and if people ask me why are you not over there helping well I’ll tell you why because I do not have money to get there if I hade money for a plain I would be there I would not care if that’s all I had was the money to get a plain ticket I would even if it means no food no shelter and the only weapon I have is rocks.”

37. The message prompted this exchange with his wife the following day:

“[The offender’s wife]: Why did you write the other day ... That you dont have the money to go overseas to do charity work. Is it money or parole?

[The offender]: Yer so now they police have stuffed me atm, and actually seized my account couple of days ago …”

38. In fact, the police had not frozen his bank accounts or otherwise blocked his access to his funds.

39. On 16 March 2019, in a post on Facebook, the offender declared that:

“Shits Bout to hit the fan I’m ready for war enough is enough no more killing my brothers n sisters and thinking we can’t do shit will c u cunts u pushed now where off the edge if I’m going down I’m taking u with me.”

40. As noted, on 17 March 2019, the offender’s parole was revoked and he was arrested the following day and returned to custody. The black phone was seized and found to contain a total of 166 videos by eight different advocates of Islamic extremist violence.

The indictment offence

Particular (a)

41. In relation to Particular (a), the offender’s conduct is summarised in the agreed facts as follows:

“a.   The offender’s conduct included:

i.   on or about June 2019, the Offender communicated with [Witness A], including about his Islamic religious ideology;

ii.   secreting a letter to Witness A in the shared sports yard containing statements about dying for the sake of Allah as a martyr;

iii.   reading to Witness A the names and ranks of Corrections Officers including managerial staff who he believed were connected to his detention in Supermax; ^[10]

10. The HRMCC.

iv.   requesting that Witness A, when he was released from custody, attend pubs in Goulburn and follow Corrections Officers home, to determine where Corrections Officers and their families lived; and encouraged Witness A to carry out the task: “you’re Muslim, you’re my brother”.

v.   saying on 1 October 2019: ’Don't worry, I’ll have all your addresses soon, just wait’ and looking in the direction of an AFP officer;

vi.   the possession of a document which was indented with the sentence ‘…2 carry out a operation ect for eg perol cop’s army screw’s ect. & if the objective was 2 get many but you only sucseded in getting 1 or 2…would u wait 4 something bigger…if we could get one is it suffient’ which was indented through the Offender writing a note on top of the document creating the indentations;

b.   The offender believed in violent jihad and subscribed to an extremist form of Islam at all relevant times.”

Context and ideology

42. On 22 March 2019, the offender was transported to Silverwater MRCC. In a recorded phone call on the afternoon of 27 March 2019 with his wife, the offender said that he had converted someone to Islam earlier that day and that “I’m going to get all the boys for a meeting tomorrow and I’m going to get them to all pray in the yard for now to have unity in the unit you know, stand together”.

43. On 29 March 2019, in a recorded phone conversation with his wife, the offender said he was struggling to cope in “the pod”, he was scared of being stabbed and was thinking of putting himself “on segro”. His wife advised him against that, saying that he would not “handle it”. He continued:

“I don’t know what’s best for me to be honest. … But Soon I am going to fucking smash the screws up you know what I mean? Because I don’t know what to do … But I don’t know what to do anymore. Huh? … It’s affected me. All the mixing, I want to go to (inaudible) you know? They’re making me violent. They’re making me a monster. They’re fucking, these screws are fucking. … They’re going to make me fucking click you know?”

44. On 8 April 2019, in the course of a conversation with his cellmate that was recorded, the offender said:

“I’m fucking telling ya, I’m gonna start acting violent, just to, just to show cunts shut the fuck up ... I’ma bash the screws, I’ll fucking bash these cunts ... the longer they ... fuck this shit. I’m sick of it. Cunts just ... otherwise. These couple of little fuckheads.

It’s cunts coming in here and talking shit. That’s why, that’s what’s making me angry.

Yeah, because I’m religious, I do, I get treated, ah, I don’t get treated, no one treats me like shit.

… I’ve got ... where I get ... actually kill ’em I’m not gunna go smash someone, I’m gonna fuck ’em up and hospitalise them. Like I said, I don’t like to fight to fight just to fuck around. I fight to kill cunts, I’m not this little gronk that’s just gunna punch on and that’s it.

That’s why I know not to do that shit. But … Thing is you have to beat up sometimes, just to show people.

... I just feel pain and try to ignore it, but I think very soon it’s gonna get the better of me to be honest. I’ll end up fucking stabbing a screw or end up bashing a screw or end up fucking stabbing some cunt in here ...

... Try to keep the lid on my anger. If not,

I’ll still be humble but, like … I’m just gunna be violent, very, very violent. Very violent. I’ll end up in ... straight away. It’ll be very violent ... why the fuck ...”

45. On 10 April 2019, in the course of a conversation with his cellmate, the offender said:

“I don’t care if they can hear whatever they want to hear in this cell, like, I’ll go over there and I’ll fight. If, that’s what I was gonna do, I wouldn’t do it in Australia …”

46. And later that day:

“I’m tellin’ you though, these cunts are gonna make me fuckin’ violent. They expect ya, they're gunna create a terrorist. Fuckin’ piece of shit.”

47. On 11 April 2019, in the course of a conversation with his cellmate, the offender said:

“I’m gonna start training tomorrow … well not tomorrow, the next day. … I’ll be physically fit. And, then I’ll just read Qu’ran ... I need to get back into martial arts again. Train, for this religion. Get physically and then get prepared for war. ... physically prepared for it, though. Just in case it kicks off ever you know what I mean.”

48. Later the same date, the offender referred to a forthcoming parole hearing and said: “Well if they keep me in for terrorism I may as well just become it. You know what I mean?”

49. On 17 April 2019, the offender was transferred to the Goulburn Correctional Centre. Pursuant to a surveillance device warrant, a listening device was installed in his cell, which captured conversations with his cellmate in which he explained his belief in an extreme Salafi-Jihadi interpretation of Islam.

50. On 6 May 2019, the offender said:

“I miss my daughter … I want to see her, and now my son … if I don’t get the chance to see ’em before I go and fuckin’ die … Before I die just for the sake of Allah, I want to see ’em. Do you know what I mean? I at least want to spend 1 month at least with ’em, and that’s all, or 2 weeks. I just need 2 weeks with ’em or so … Just to give ’em a kiss and tell ’em I love ’em and write a letter to ’em so that my daughter will always know that I love her and stuff. … I want her to know that I done it for the sake of Allah and that I love her to death and that I hope she becomes a righteous and pious little daughter you know tell my son I love him and I hope that, if he comes a mujahideen like his father, inshallah.

I write her a letter without her knowing and then I’ll go out and do my thing. … … that’s why I wanted to spend like two weeks with her so it’s going to be out of the blue no one’s even going to know do you know what I mean but she’s going to wake up and I’m going to be gone and there’s going to be a letter there for her and my daughter fuck, so a week before I do that inshallah do the month of preparation, I’ll send them a letter … I’ll write it from the computer so it’s neat and I’ll write like a 12 page essay of how I love her and I wish the best for them in this world … I’ll write my daughter a letter saying that I’m sorry I left her but it was for a greater cause and to my son. And I told them both become mujahideens. I’ll tell them to kill the west, and to blow themselves up.”

51. On 7 May 2019, in the course of a conversation with his cellmate, the offender said:

“We do not believe in nationalism, we believe in Islam. So what is your role … each operation against the Muslims were to be retaliated by a single Muslim living in the West resulting in killing of many Americans. … So what do you think that will happen as a result? If we were not to fear, if it were not for Allah checking some people by means of others, the earth would have been corrupt. So, do you know what this means? There’s people in Australia that do not carry out the jihad operation attack, but we have to. … Maybe you are killed. All right. You are victorious mujahid, if you sacrifice yourself for the purpose of Allah then you can do great things ... but he executed his death operation ...”

52. On 8 May 2019, in the course of a conversation with his cellmate, the offender said:

“So the difference between me and them is I didn’t talk, I was training, I was getting’ weapons prepared and then I got arrested. … be … very, very careful of who you accuse because I would have been Insha’allah a Shahid if Allah had of willed that but I got arrested and put in gaol instead. … every day I trained for mujahid. I trained, I trained, I trained, I trained with weapons, I trained with this, I trained that...... people were training me. ... I was preparing guns … I’m in here because I prepared for jihad, not, I didn’t talk about jihad, that’s the thing. I prepared for jihad. So when you say, Talk’s cheap, be very careful of who you’re accusing. … Like, I watched since I was 14 years old, so I had to go under the radar.”

53. On 8 May and again on 12 May 2019, the offender watched videos that were apparently on a USB stick that they possessed that were released by Islamic State. They were grossly violent, showing Islamic State fighters torturing and executing soldiers. The offender repeatedly expressed delight at what he saw.

54. Later on 8 May, the offender referred to himself as “the lion of Allah”. He said that “I was blessed to come to gaol because of what I believed in and I haven't … fully lived up to that name yet, no”.

55. On 9 May 2019, the offender said to his cellmate:

“Anwar al-Awlaki … a very prominent sheikh … They’e labelled him as an extremist. … He supports Al-Qaeda. He’s a beautiful brother, but he’s Salaf. Same … that I follow.”

56. On 12 May 2019, after watching Islamic State videos, the offender said:

“… we’ll lay in wait and fight them wherever they are and capture them and fight until there no more fitna left, which means until there is no more kafirs, till there is no more kafirs.”

57. On 15 May 2019, the offender, referring to Corrective Services officers, said to his cellmate:

“Like, they just think the most stupidest things … And call me a terrorist, think I’m gunna go and I support Islamic State. I completely don’t support the Islamic State. Wallah, I don’t. Um, they just look at me like I’m a terrorist and they’re so scared for some reason, like I’m gunna do something or whatever. I dunno, man. It’s better, better to be feared than be a ... do you know what I mean? These people you need to fear ’em ’cause otherwise they just make your life hell. Look what they’re doin’, playin’ games with us today. They’re voice recording us in this room.”

58. On 20 May 2019, the offender said to his cellmate:

“… let’s not talk because they’re listening … cause they’re dogs and they’re listening to our conversation right now. Anyway, dogs, I’m gunna sleep.”

Conduct

59. On 6 June 2019, the offender was moved within Goulburn Correctional Centre into the HRMCC, into a cell alongside a prisoner who had converted to Islam (Witness A). In about June 2019, the offender complained to Witness A that corrections officers were “kufr” and were oppressing Muslims and had stopped him contacting his wife and children.

60. The offender arranged with Witness A to collect a letter that the offender had left for him. According to the agreed facts: “The letter contained religious information about dying as a martyr for Allah. Witness A then returned the letter, at the Offender’s request”. About a week later, the offender told Witness A that he had a list of the names and ranks of Corrective Services officers, that he had obtained from his brief of evidence, who had been involved in placing him in the HRMCC. The agreed facts state:

“The offender asked Witness A to follow these Corrections Officers when he was released from prison. He asked Witness A to attend pubs in the area and follow the officer’s home to see where they lived. He asked Witness A to find out information about their families and what they were doing outside of gaol. The offender told Witness A that he would receive rewards if he did what the offender asked. The offender also told him ‘you’re Muslim, you’re my brother’. The offender said he wanted to get back at the ‘screws’. The offender wanted to attack Corrections Officers when he was released or was assessing whether Witness A would do something to them himself.

Witness A did not want to do anything that the offender had asked him to do. He told the offender ‘I don’t know about that’ and did not otherwise answer. The conversation occurred on one day and there was no further mention of the topic.”

61. On 1 October 2019, during a search of his cell, apparently by Australian Federal Police (AFP), the offender said “Don’t worry, I’ll have all your addresses soon, just wait” and looked in the direction of an AFP officer. He also said, “I’ll slit your fucking throats!” As he was being restrained by NSW Corrective Services officers, he said: “I’ve got no problems with you, it’s these fucking dogs”. AFP officers took that to mean that the offender did not have a problem with NSW Corrective Services but that he did not like Police. As noted, as a result of this incident, he was convicted of two counts of intimidate police officer in the execution of their duty and sentenced to imprisonment for 18 months, with a non-parole period of 9 months.

Particular (b)

62. The offender’s conduct in relation to Particular (b) is summarised thus:

“a.   The offender’s conduct included:

i.   on or about September 2019 possessing a letter from Isaac El Matari (El Matari) in his cell within the High Risk Management Correctional Centre (HRMCC); and

ii.   writing a letter in response to El Matari in support of El Matari’s plan indicating his agreement with the contents of El Matari’s letter;

b.   The offender believed in violent jihad and subscribed to an extremist form of Islam at all relevant times.”

Conduct

63. In September 2019, one of the offender’s cellmates was Isaac El Matari. The agreed facts are as follows:

“On or about 16 September 2019, El Matari wrote a three-page letter and, by means unknown, gave it to the Offender who took possession of it and read it. El Matari’s letter detailed plans for a violent Islamic insurgency in Australia.

At some point between 16 September 2019 and 1 October 2019, the Offender wrote a one-page letter responding to El Matari’s letter in which he expressed agreement with El Matari’s plan and sought El Matari’s direction. The Offender did not send his one-page letter to El Matari or any other person.

The Offender maintained possession of El Matari’s three-page letter and his letter in response until those letters were seized by authorities on 20 September 2019 and 1 October 2019 respectively.”

64. On 20 September 2019, along with Mr El Matari’s letter, Correctional Services officers seized two Compact Discs (CDs). The content of one CD included a handbook on camouflage, combat and survival, a publication titled “Transnational Terrorism: The Threat to Australia”, the text of a speech by Osama Bin Laden declaring war on the USA and the text of a speech by Shaykh Usaamah in Laaden. The content of the other CD included terrorism or jihad-related texts.

65. The contents of Mr El Matari’s letter included the following:

“My suggestion is the establishment of a small enclosed battalion to exploit the landscape, taking to remote regional areas to plan the orchestration of attacks, whilst cells living amongst the civilian population finance, recruit and resupply the mujahideen through strict, well regulated agreed upon protocols to avoid arousing the suspicion of the authorities. The cells also regulate direct communication with senior command overseas as well as media/audio visual publications. This allows attacks to be orchestrated undetected, whilst maintaining and asserting the presence of a jihadist identity.”

66. Mr El Matari offered to link the offender with key figures in Islamic State in various locations in the Middle East and elsewhere and to facilitate the purchase of “false documents ranging from degrees to passports”, weaponry, including explosives and suicide vests.

67. In his reply, the offender wrote:

“... Jazak allahu kyra ^[11] 4 the beautiful letter. As 4 this path I understand that is a path is going 2 be a path of many tribulations & afflictions. Also a path of sabr. ^[12] May allah reward u with Jannah firdaws. ^[13] Amin. …

What ever you think is the best course of action with the greater outcome and benefits I will go with that inshallah. I wanted 2 no if I can sit under u & u teach me as much as u can about aqeedah takfir ^[14] darb al kufr ect everything …

As 4 the 2nd (masala) ^[15] u mentioned that contains both Hijra ^[16] & operations if that is the best & most beneficial then I will need U 2 direct me 2 people ect that can help me in that course.”

11. The agreed facts explain: “Jazak allahu kyra is an Islamic expression of gratitude meaning “May God reward you with goodness.”

12. The agreed facts explain: “Sabr is an Arabic word meaning endurance.”

13. The agreed facts explain: “Jannah firdaws is an Arabic expression for a beautiful garden or paradise.”

14. The agreed facts explain: “Takfir is the act of declaring someone to be a kafir (unbeliever).”

15. The agreed facts explain: “‘Musalla’ is a non-mosque place to pray, such as a prayer hall or prayer room.”

16. As to the meaning of Hijra”, see fn 9.

68. Another document seized from the offender’s cell on 1 October 2019 was a sheet of paper that included drawings of a person being shot in the head with a pistol and having their throat cut with a curved-blade sword. Another document seized at the same time had references to his release date and the note:

“2 carry out a opperation ect for eg perol cop’s army screw’s ect. & if the objective was 2 get many but you only sucseded in getting 1 or 2 ... would u wait 4 something bigger ... if we could get one is it suffient”

The offender’s recorded interview by police

69. The agreed facts have a summary of the offender’s statements during an interview by police that was conducted on 18 February 2021, which I relate in its entirety:

“a. He is a Sunni Muslim and follows ‘Salafi Jihadi’;

b. He believes in jihad ‘hundred per cent’ and ‘I believe in fighting as well’;

c. He believes in the whole of the Quran and follows Sharia over the laws of Australia;

d. The objective of physical fighting is ‘to raise the word of Allah’;

e. The conditions for fighting jihad fluctuate;

f. Jihad can be fought ‘all over the world. It can be fought anywhere’;

g. He is currently known as [redacted] after his son, but before his son was born he was known as [redacted], which is his daughter’s name;

h. He could not remember a three page letter that was located in his cell and does not know Isaac El Matari;

i. In relation to the note with six points on his phone the offender stated he didn’t write it, but agreed with the overall aims to spread the religion of Allah ‘because Allah says, I fight those who fight you. Or fight until, until the word of Allah is most supreme’;

j. It would be justified to kill a nonbeliever for the sake of Allah if it was necessary to spread the religion of Islam;

k. When played a recording from 8:13pm on 6 May 2019 where the offender refers to dying for the sake of Allah and telling his children to blow themselves up, the offender stated it was his voice and him speaking; ^[17]

17. See [48] above.

l. When played a recording from 6:39pm on 8 May 2019 where the offender stated ‘I hope this is where they behead him. Kill him silly dog’, the offender laughed. Upon hearing his voice say ‘beautiful isn’t it, when they chop their heads off’, he said it was funny. He said he liked horror movies and also found them funny, but said when this was done in the name of Allah it was jihad;

m. When played a recording from 8:22pm on 9 May 2019 where the offender stated jihad was the best thing in the world, he described that being the night he had an argument with his cellmate and physical jihad is the greatest deed to Allah, and no other deed can compare;

n. He would physically fight everyone that disrespects the Muslims. He said this disrespect could involve swearing at the prophet, swearing at Islam and trying to fight Islam but declined to say how he would fight;

o. When played a recording from 7:09pm on 12 May 2019, where the offender stated ‘I like watching their eyes and how they scream’, the offender laughed and said he found the head being cut off and rolling down the hill funny. He stated he found half a head being blown off as funny.

p. When played a recording from 6:53pm on 13 May 2019, where the offender said ‘... we’ll lay in wait and fight them wherever they are and capture them and fight until there no more fitna left, which means until there is no more kafirs, till there is no more kafirs’ the Offender stated he believes in jihad, all fighting, offensive and defensive.

q. When the offender was asked about the five pillars of Islam, he said Muhammad had said if there was a sixth pillar it would’ve been jihad. He said this is a hard thing to do and he seeks that death but declined to say how he sought it;

r. The offender stated in Islam there are many rewards for undertaking jihad and dying as a martyr including seventy three virgins and getting to the highest level of paradise and if he needs to fight jihad he will;

s. If he was going to do any act he could do it with a knife or a sword or just pick up an AK;

t. He acknowledged being a shahid is an Islamic term, meaning to be a martyr and die for the sake of Allah;

u. Jihad does not depend on a specific place or a land. Jihad and Islam were spread by the sword but he hasn’t thought about doing this;

v. In relation to the letter found in the cell of the offender on 1 October 2019 with indentations, the offender was read the indentations ‘to carry out operation, etcetera, for e.g. parole cops, army screws, etcetera and the objective was to get many, but you only succeeded in getting one or two would you wait for something bigger? If we could get one, is it sufficient?’ and replied ‘of course it’s sufficient.’ He then stated ‘One, two, three, four, ten, twenty. It’s your intention. If my intention was to go, if it was to go and fight and die, even if you don’t kill anyone, you still die as a martyr’ and ‘If your intention was to die that way, then you still get that reward, you know. ‘Cause, there’s a hadith. Actions are based on intentions and everyone will have what they intended’;

w. The offender agreed he was looking to get out on parole shortly after the letter was found;

x. When asked about saying ‘one or two would be sufficient’ he said ‘They’re hood, they’re a good, army, they attack Muslims, and coppers, they attack Muslims’. He then asked ‘who else did I say?’ and when police stated ‘parole, cops’, he stated ‘yeah. Of course’;

y. The offender said the media attacks Muslims and portrays them to be bad. When asked if any of these groups were legitimate targets, he said not according to him, it wasn’t his words ‘but, yeah, they’re kufr’. He said if you were going to attack someone it wouldn’t be an elderly lady or a child, but ‘you would attack the head, the head of the snake. Government systems, courts’ and police but has no intention for that;

z. He wants his kids to be pious Muslims and if his son wanted to fight jihad would allow him to do so;

aa. ‘My belief’s with Al-Qaeda’ and he aligns with them because they follow how the religion is supposed to be and they have morals;

bb. In relation to Al-Qaeda flying planes into the World Trade Centre in 2001, the people ‘weren’t innocent’, ‘they were all government people and this attack was for a better cause. This attack was for a government person that, oppressed or invaded Afghanistan and this is why there was an attack. Like I said, they went and they invaded Afghanistan and that’s why many people went and became jihadists, because their, like I said, their land got invaded’. He stated the people in the World Trade Centre were ‘collateral damage’;

cc. It’s also collateral damage when civilians are killed in Muslim countries. Children dying ‘is why Australia gets attacked’;

dd. If he could, he would go to Afghanistan, Syria or Turkey, where he can practice his religion and talk about jihad or practice it;

ee. Jihad can be fought in any country including Britain, UK, Australia and France. In France, the school teacher who insulted the prophet was beheaded and that was legitimate. If someone in Australia did that, it would be legitimate to behead them, though believing in it doesn’t mean he will carry it out;

ff. If someone attacked his house, ‘I’d kill them and if they killed me, then great. Beautiful.’ His belief in Islam is more important than his house. If someone attacked Islam he would be prepared to retaliate. If someone attacked Jesus or insulted Islam, he would attack them;

gg. He agreed his phone contained many videos, photographs, quotes and references to Anwar Al-Awlaki, Ahmad Jibril and Abu Waleed and they speak truth from the Quran and Sunnah. Al-Awlaki is the number one Sheikh in English. His book Constants On The Paths of Jihad is the ‘go to about jihad’;

hh. If he is imprisoned for the rest of his life ‘it’s an honour’ and ‘this is beautiful’. He said that if he dies in prison it will be as a shahid;

ii. He admitted he had said that ‘jihad’s in this country, so why wouldn’t you fight it in this country’;

jj. He can make a very deadly bomb in his cell. He can get a shank whenever he wants and put it in someone’s throat. He said ‘I believe in it and that’s as far as it goes’;

kk. Parole, cops, army, screws, etcetra are legitimate targets ‘of course’, ‘lslamically’;

ll. When put to him that he was talking about preparing and training and that his arrest ‘put a stop to his preparations’ the Offender said ‘No it hasn’t’; ‘I could carry it out in jail’

mm. When told he will be charged and the maximum penalty is life in prison, he said ‘oh, beautiful’.”

70. The offender was charged with the indictment offence on 18 February 2021.

The offender’s spinal cord injury suffered on 27 November 2021

71. On 27 November 2021, while still an inmate at the HRMCC, the offender and seven fellow inmates refused to be locked into their cells. According to a Correctional Services case note report of that date, “force and chemical munitions” were used to ensure compliance. The offender suffered a spinal cord injury and was initially taken to Goulburn Base Hospital. He was later transferred to the Prince of Wales Hospital for treatment, including surgery. He was subsequently diagnosed as being a tetraplegic.

Subsequent charges for breaching his ESO

72. As noted earlier, on 4 May 2022, the offender was released on bail and subject to an ESO. On 26 January 2023, a police officer attached to the High Risk Terrorist Offenders Unit seized a mobile phone that had been in the offender’s possession at about that time. In a statement tendered by the Crown, Federal Agent Detective Sergeant Joel Williams (FA Williams) stated that he downloaded and examined its contents. He located 123,822 images, an extensive web history, 2,057 documents, 1,192 videos and 856 audio files. FA Williams prepared a report that contained samples of the material, which he produced as an annex of his statement. The imagery included images of Islamic State victims about to be beheaded, firearms, AFP officers, the Sydney headquarters of the AFP and Corrective Services staff. The report included a description of 25 images that were too violent to reproduce. The documents on the phone included articles about terrorist attacks in Australia. The videos included speeches and interviews extolling violent jihad, a video of a pistol in the cabin of a vehicle that is fitted with a silencer and a video of mutilated bodies, as well as videos of the offender speaking to camera (presumably filming himself on his phone), on topics that included an explanation of terrorist attacks in the West being motivated by attacks on Muslims in their homelands. The documents included one titled “The Al Qaeda Manual” and other publications extolling violent jihad, publications concerning weapons and a book about Goulburn jail. Web searches made on the phone included searches of terrorist attacks in Australia. Audio files included multiple speeches by Anwar Al-Awlaki.

The offender’s current circumstances

73. The offender is presently an inmate in the Long Bay Hospital. According to a statement of the Manager of Security of the Long Bay Hospital, he is accommodated alone but in a “two-out” cell; ^[18] he is subject to a segregation order (a Section 10 order ^[19] ) that requires him to be in a “one-out” cell. Due to his medical condition, placing him alone in a double cell allows easier access for staff and room to perform tasks such as lifting him. ^[20] As to his current conditions of incarceration, the Manager stated:

“As a result of [the offender’s] classification, the following conditions apply to him:

a. Currently [the offender] does not associate with other inmates due to his section 10 order.

b. [The offender] is managed under the Countering Violent Extremism (CVE) team. [The offender] is seen by the following CVE team members, Senior Assistant Superintendent, Senior Psychologist, Religious Support Officer, Theological Mentor & Services & Programs Officer. [The offender] also has access to Centre Psychology, Centre Services & Programs Officer and the Muslim Chaplain.

c. [The offender] currently has 2hrs a day outside of his cell area for exercise even though he is confined to a wheelchair. He currently is in his cell for the rest of the day. There are a number of other inmates that also need exercise therefore the exercise area is restricted.

d. [The offender] is out for exercise daily from 1030 – 1230 which is inclusive of phone access.”

18. Meaning he shares the cell with one other offender.

19. Crimes (Administration of Sentences) Act 1999 (NSW), s 10.

20. Meaning he has a cell to himself.

74. The Manager states that the offender will remain in the Long Bay Hospital if he receives a full-time custodial sentence. A statement by the manager of Countering Violent Extremism programs (the CVE manager) refers to the offender’s eligibility for those programs. One that they administer is known as the Proactive Assessment and Intervention Service (PRAXIS), which she described as “an enhanced case management model, and not a program with a formal start and end date”. Its staff includes a service manager, senior psychologists and religious support. She stated:

“[The offender] is currently subject to an Extended Supervision Order (‘ESO’) wholly suspended whilst he is incarcerated. [The offender] is currently housed at Long Bay Hospital.

Due to his suspended ESO, he has been eligible to participate in PRAXIS and has given his consent to participating in PRAXIS. [The offender] commenced participating in PRAXIS on 7 September 2022. He continues to be engaged with the PRAXIS team. He engages regularly with a Senior psychologist, SAPO, Religious Support Officer and a Theological Mentor. He interacts with each at least every 2-3 weeks.

[The offender] is currently in the intervention phase of PRAXIS. A full comprehensive assessment and subsequent supplementary assessments have been completed on [him] as a result of his ESO proceedings and these have been reviewed for the purpose of assessing his engagement with PRAXIS. This includes a review of his risk, needs, responsivity, vulnerabilities, and goals following his injury.

If [the offender] is released to the community under a CSNSW supervised order, he will continue to be eligible to maintain his engagement with the PRAXIS team.

If [the offender] is sentenced to a protracted custodial sentence, he will continue to be eligible for CVE services. The most appropriate service and timing of intervention would depend on his sentence, housing location and willingness to maintain engagement with CVE.”

75. The offender is subject to a non-association order (PRNA) due to his high security rating and National Security Interest (NSI). ^[21] A briefing note dated 12 May 2023 records five adverse reports concerning the offender’s behaviour in the Long Bay Hospital, which led to a recommendation to maintain the PRNA. One is as follows:

“On the 04/04/2023 target search revealed religiously themed military propaganda drawing and unauthorised items being books (Subject of local investigation). IR Generated.”

21. Defined as “where the Commissioner considers there is a risk the inmate ‘may engage in, or incite other persons to engage in, activities that constitute a serious threat to the peace, order or good government of the State or any other place’”; page 58 of the 2021 report of the Inspector of Custodial Services concerning the inspection of Goulburn CC and the HRMCC at tab 9 of SH-1.

76. According to Corrective Services records, the only approved visitor that the offender has is his sister, who has telephone contact with him. Contact with his wife and mother has not been approved. He has been disciplined for unlawfully using a phone and supplying false or misleading particulars (3 April 2023) and communicating with a restricted associate (31 May 2023).

Material tendered by the offender

The offender’s background

77. The material includes a psychologist’s report dated 28 April 2004, that is, when the offender was aged 7 (the 2004 psychologist’s report). It noted that the offender and his sister, who is a year older than him, were placed into their maternal grandparents’ care when the offender was aged 9 months, “due to neglect, chronic ongoing drug use and domestic violence”. A trial return to the parents’ home in 1998, on the understanding that the father would not be there, resulted in concerns as to their mother’s drug use and the offender’s father being there and fracturing the offender’s arm (his humerus); the offender was aged 2 at the time. The children were returned to the care of their maternal grandparents. The grandparents separated in 2000 and the children were cared for by their grandfather. In 2002, the children’s grandfather informed the authorities that he could no long care for them. They were transferred to the care of their grandmother and her new partner, but were removed in 2003 following allegations of sexual abuse made against the partner, and placed in departmental care.

78. The report noted that the offender had serious behavioural issues, including impaired social functioning, self-blame for the domestic violence he had received and witnessed, low self-esteem and issues with pornography and adult sexual acts. He was noted to derive considerable support from his sister.

79. A second childhood psychological report by Charlie Gangemi, dated 14 November 2011, when the offender was aged 15, was also tendered. He noted that the offender had 13 placements by then, four with family members and the balance with foster carers. The offender was separated from his sister in 2004.

80. A cognitive assessment in May 2005 by a school counsellor, using the Wechsler Scale for Children-Third Edition (WISC-III) yielded scores that placed the offender in “the mild range of intellectual functioning with a significant difference between his verbal and non verbal score”, which indicated the possibility of “learning difficulties and visual difficulties”. Mr Gangemi administered the WISC-IV to the offender, which placed him in the “extremely low” range. He concluded:

“Even though there was some variability, his results and presentation during testing had characteristics which would typically be seen in a person diagnosed with a mild intellectual disability.”

81. A report by Dr Kerri Eagle, who is a forensic psychiatrist, dated 14 July 2023, was tendered by the offender. It is extensive in its consideration of the material that has been otherwise tendered on sentence, the history she obtained from the offender and her assessment. Dr Eagle excluded a mental illness, stating:

“[The offender] does not display signs of a psychotic disorder or major mood disturbance at the time of this assessment. He has likely previously experienced some transient substance induced psychotic phenomena. He has described episodes of mood disturbance that may be consistent with a depressive episode. He has a history of deliberate self harm and suicide attempts. He is susceptible to the development of depressive episodes in future which may increase his risk of deliberate self harm and/ or suicide.”

82. Dr Eagle diagnosed the offender as having the symptoms of

“… a post-traumatic stress disorder (PTSD) that is most consistent with a complex PTSD. He has been exposed to and witnessed repeated episodes of severe violence causing injury and sexual assault since early childhood. … [The offender’s] lifetime experience of severe trauma from childhood, exacerbated by ongoing exposure to violence and substance abuse, has profoundly contributed to his psychological functioning, personality style and behaviour.”

83. Dr Eagle is of the opinion that the offender satisfies diagnostic criteria for an antisocial personality disorder:

“His conduct would be considered a pervasive pattern of disregard for and violation of the rights of others since childhood, including behaviours that would satisfy a diagnosis of conduct disorder. He has repeatedly failed to conform to social norms with respect to lawful behaviours, demonstrated the capacity for deceitfulness, displayed impulsivity, has been irritable and aggressive, demonstrated a reckless disregard for his own safety and the safety of others and displayed consistent irresponsibility. He has also been identified as having features of borderline personality disorder including a pattern of unstable and intense interpersonal relationships, identity disturbance, suicidal gestures, inappropriate intense anger and emotional instability. [The offender] has shown the capacity to be superficially charming and manipulative. His personality structure has arisen in the context of a highly abusive, dysfunctional, disruptive childhood including exposure to preverbal trauma (trauma that occurs before speech and language development). He has lacked prosocial familial care givers and role models. He has been exposed to antisocial attitudes, repeated violence, premature exposure to sexual conduct and sexual abuse. He has had a disrupted education and development. His psychological and personality development was further disrupted by repeated incarceration, hostile interactions with authority figures and exposure to violence, further exacerbating problematic attitudes, behaviours and grievances.”

84. Dr Eagle also diagnosed the offender as having a substance use disorder (in remission) and considered the childhood testing of the offender’s intellectual functioning:

“[The offender] appears to have an intellectual developmental disorder (intellectual disability), that was formally assessed as a mild intellectual disability on the basis of structured cognitive assessments during childhood. He has demonstrated significant performance deficits in social functioning and reasoning, as well as other domains.”

85. Dr Eagle considered the extent to which her diagnoses assisted an understanding of the offender’s criminal behaviour:

“[The offender’s] trauma related disorder, cognitive impairment and personality structure have pervasive effects on his attitudes, emotions and behaviour. The conditions influence his judgment and behaviour, but do not prevent him from understanding the legal and moral consequences. However, his ability to problem solve, identify alternative lifestyle choices, control his impulses and change his behaviour is likely to be substantially impaired by psychological and cognitive deficits arising from his conditions. His interpersonal and relationship problems, potentially arising from an insecure attachment style, have also made him susceptible to the influence of others and have likely contributed to his apparent involvement with an extreme Islamic group in custody. His psychological deficits, and the effects of PTSD, make him more susceptible to grievances causing heightened anger in the context of perceived hostility and antagonism. He has been a victim of violence and maltreatment throughout his life, and this has resulted in an enduring heightened state of fearfulness that increases his perception of threats and significantly impacts on his response to perceived threats.”

86. Dr Eagle noted from records provided to her that the offender had deliberately self-harmed and had suicidal ideation from 2005, at the age of 8 to 9 years old. As to his childhood generally, she said:

“… I am of the view that [the offender] has had an extremely deprived and disadvantaged life starting from early childhood. He has been exposed to significant physical, psychological and sexual trauma including pre-verbal trauma (prior to the development of language or communication skills). His access to education and appropriate psychosocial support has also been disrupted. He appears to have never received any stable supportive living environment. Those who he would have expected to have protected him have let him down, and abused him. He was exposed to antisocial and pro-violent attitudes from an early age, through close family members and peers.”

87. Dr Eagle considered the impact of the offender’s mental condition and spinal cord injury on his experience of imprisonment:

“[The offender’s] mental health conditions, his cognitive impairment and his physical disability would, in my experience, be considered more severe than the average inmate, and would be likely to make full-time imprisonment challenging. In particular, the experience of having suffered such a serious injury in the context of an altercation with corrective services officers, and on a background of trauma related symptoms, would heighten maladaptive psychological vulnerabilities and potentially worsen fearfulness, anxiety and emotional instability by exposing [him] to possible triggers. He would also have less access to appropriate mental health treatment and support. He has indicated a lack of trust in treatment providers that are associated with CSNSW, including Justice Health, which is not unexpected in the circumstances, but is also likely reflective of longstanding difficulties trusting care providers.

…

[The offender’s] physical disability potentially isolates him further from his peers and supports. He is on a non-association order, and has said he cannot associate with any peers, increasing his loneliness and isolation. Isolation and loneliness are known to contribute to mental health difficulties such as mood disturbance. He has been identified as having interpersonal, social and relationship problems since childhood, which in my view are likely to be exacerbated by long periods of isolation from others.”

88. As to his prospects of rehabilitation, Dr Eagle noted the offender’s willingness to participate in therapy and adopt a pro-social lifestyle, but cautioned:

“On the other hand, [the offender] has continued to partially justify his beliefs and conduct. He has, somewhat understandably, continued to express grievances towards CSNSW and other authority figures. He has been unable to demonstrate the capacity to comply with conditions of release. Despite his physical disability, he appears to have developed inappropriate relationships and reoffended during his most recent period of supervision. He is not engaged in any psychological interventions or other treatments for his trauma related symptoms and psychological vulnerabilities.

[The offender] has mental health conditions and impairments that are enduring and pervasive, and will require intensive clinical support and interventions over the longer term to mitigate. At this stage, from a psychiatric perspective, his prospects for rehabilitation are guarded.”

89. A report by Dr Susan Rutkowski, a spinal cord injury specialist, was tendered. Dr Rutkowski examined the offender on 9 May 2023 at the Long Bay Hospital. She has provided a detailed account of the complex daily care needs of the offender, and his future needs for his medical management and surgery. Dr Rutkowski noted that the offender has elevated risks of developing multiple conditions as he ages, including bladder and kidney stones and consequent bladder infections, pressure injuries requiring plastic surgery, post-traumatic syringomyelia (a cyst enlargement in the spinal cord), shoulder overuse degenerative disease, osteoporotic fractures that may result in joint replacements, type II diabetes, obstructive sleep apnoea, gall bladder disease and significant cardiovascular disease.

90. Dr Rutkowski also noted that there is significant long-term morbidity associated with spinal cord injury. She noted that, statistically, the offender could expect to live until the age of about 67 years with a spinal cord injury if he lived in the community, although she expected that his life expectancy would be “somewhat better than average” because of the nature of his injury. However, in custody he would not receive the individualised care that is necessary to maximise his life expectancy.

91. An affidavit by Sarah Hedberg, who is the offender’s solicitor (Ms Hedberg’s affidavit), sets out in more detail the offender’s journey through services provided by Health (principally the Prince of Wales Hospital), Corrective Services and the National Disability Insurance Scheme (the NDIS), following his spinal cord injury. Under the NDIS, Specialist Disability Accommodation (SDA) was set up in the community for him upon his discharge from the Prince of Wales Hospital.

92. It is apparent from the discharge summary from Prince of Wales Hospital, dated 19 December 2022, that the offender has multiple complex on-going medical issues that require intensive professional support. It lists seventeen different medications that he is to take, at least once per day.

93. Ms Hedberg’s affidavit has annexed to it critical assessments by the NSW Inspector of Custodial Services of the HRMCC at the time that the offender was detained in that facility, including the absence of access to “programs, work or education”, insufficient time for inmates to be out of cells, limited permitted contact visits, minimal communication and interaction with staff and the use of force by staff against inmates (43 times in 2021) in spite of a “low number of assaults” in the same 12 month period.

Relevant sentencing principles

94. The sentencing exercise for federal offences is carried out pursuant to Pt 1B of the Crimes Act 1914 (Cth) (the Act) and relevant common law principles.

95. It has often been observed that sentencing for a terrorism offence involves different emphases on sentencing factors. In Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360, Price J, Spigelman CJ and Barr J agreeing, stated, at [274]:

“Rehabilitation and personal circumstances should often be given very little weight in the case of an offender who is charged with a terrorism offence. A terrorism offence is an outrageous offence and greater weight is to be given to the protection of society, personal and general deterrence and retribution.”

96. The maximum penalty for the indictment offence is life imprisonment, which I take into account as a sentencing guidepost. I note that, in the words of Whealy J in R v Elomar [2010] NSWSC 10 at [79], cited with approval in Elomar v R [2014] NSWCCA 303, at [641]:

“The broad purpose of the creation of offences of the kind involved in the present sentencing exercises is to prevent the emergence of circumstances which may render more likely the carrying out of a serious terrorist act. Obviously enough, it is also to punish those who contemplate action of the prohibited kind. Importantly, it is to denounce their activities and to incapacitate them so that the community will be protected from the horrific consequences contemplated by their mindset and their actions. The legislation is designed to bite early, long before the preparatory acts mature into circumstances of deadly or dangerous consequence for the community. The anti-terrorist legislation, relevantly for the present matter, is concerned with actions even where the terrorist act contemplated or threatened by an accused person has not come to fruition or fulfilment. Indeed, the legislation caters for prohibited activities connected with terrorism even where no target has been selected, or where no final decision has been made as to who will carry out the ultimate act of terrorism. The maximum penalty of life imprisonment testifies to the seriousness with which the present offence is to be regarded.”

Sentence considerations

The seriousness of the offences

The indictment offence

97. In relation to Particular (a), the offender’s objective was to discover where certain Corrective Services officers lived in order to target them with serious violence, either by Witness A or himself upon his release from prison. Presumably the offender wanted Witness A to do the scouting because he was less likely to attract the attention of the Corrective Services officers in question. Although the plan did not progress beyond the offender’s initial approach to Witness A, it was a serious attempt to lay the groundwork for a violent attack upon those officers.

98. As to Particular (b), Mr El Matari’s letter constituted a broad-brush proposal for how human resources would be deployed in preparing for, and carrying out, terrorist attacks in Australia. The offender’s written response indicated his agreement with the letter’s contents and a desire to be a part of it. I note, however, that there is no evidence that Mr El Matari’s letter or the offender’s response were intended to be disseminated.

99. The offender submits that the objective seriousness of the offence fell “well below the middle of the range and towards the lower end”. In my view, having regard to the approach to Witness A not being pursued and the limited nature of the offender’s response to Mr El Matari’s letter, the seriousness of the rolled-up offence, having regard to both of its aspects, I would characterise as well below the mid-range of objective seriousness for offences of this type. As noted, Witness A was unpersuaded and was not further pursued by the offender. Mr El Matari’s letter and the offender’s response lacked any specificity, although it reflected a general commitment to violent jihad in Australia and a declaration by Mr El Matari that he had the means to equip perpetrators, the capacity for which was to be further developed along the lines foreshadowed in his letter.

The advocating terrorism offence

100. As to the advocating terrorism offence, the offender accepts that he was reckless as to whether another person reading his messages, posts or other communications would engage in a terrorist act. In my view, it falls in the mid-range of objective seriousness. The offender’s advocacy involved various electronic communications with multiple recipients over a period of three and a half months. It was passionate and determined.

The offender’s contrition: s 16A(2)(f) of the Act

101. There is no evidence of remorse, contrition or insight by the offender into the wrongfulness of his behaviour, although there is a degree of understanding of the pathway that led him to the offences in this passage from Dr Eagle’s report:

“[The offender] was able to reflect on the relationship between his childhood experiences and his offending conduct. He identified peer influence and childhood exposure to violence as significant contributors to his offending behaviour. He could recognise his need for belonging and identify as motivating his conversion to Islam, and experiences (such as grievances) that contributed to a pathway to adopting more extreme interpretations of the Islamic ideology that justified violence.”

102. I am not satisfied on the balance of probabilities that the offender has resiled from his belief system of violent jihad, which underscores a need for the sentence to reflect the protection of the community: Lodhi per Spigelman CJ at [88].

Plea of guilty: s 16A(2)(g) of the Act

103. The offender is entitled to the utilitarian benefit of his plea of guilty to be taken into account: Xiao v R (2018) NSWLR 1; [2018] NSWCCA 4. A trial was set down to commence on 2 February 2023, in relation to a count that is now constituted by Particular (b) of the indictment offence and the advocating terrorism offence. In January 2023, the offender was alerted to the prospect of a further charge involving what is now Particular (a) of the indictment offence. That sparked negotiations between the parties that resulted in a plea of guilty being entered to the indictment offence, and the advocating terrorism offence being taken into account pursuant to s 16BA of the Act. It follows that the plea was entered at the first opportunity in respect of Particular (a) and late in relation to Particular (b). I propose to allow a discount of 25 per cent from his sentence, which is a quantum that I note the offender sought and that the Crown did not oppose, on the basis that the trial, had it proceeded, had an estimate of 8 weeks duration.

Deterrence and punishment: s 16A(2)(j) and (k) of the Act

104. There is an obvious need for general deterrence and retribution for an offence of this type. As to specific deterrence, although the offender will be confined to a wheelchair or at best a walking frame, in my view his post-spinal cord injury offending demonstrates that the need for specific deterrence to be reflected in the sentence for this offence has not evaporated and, indeed, is undiminished, subject to considerations of the offender’s moral culpability.

105. The context material establishes that at the time of his offending behaviour, the offender held a deep conviction of principles of violent jihad, as he understood them. The catastrophic nature of his spinal cord injury left open the possibility that it might have prompted him to re-assess that adherence. Regrettably, however, the discovery of the contents of his mobile phone in late January 2023 confirms how entrenched those beliefs are and, more significantly, how little restriction his spinal cord injury had on his capacity and determination to access jihadist material and profess his justification of it.

Subjective circumstances: s 16A(2)(m) of the Act

106. The offender was aged in his early twenties at the time of the indictment offence and the advocating terrorism offence. He is now aged 27. However, considerations of youth may be tempered when sentencing for a terrorism offence.

107. In Alou v R (2019) 101 NSWLR 319; [2019] NSWCCA 231, Bathurst CJ at [131], Price and N Adams JJ agreeing, observed that there is a clear body of authority that in sentencing for terrorist offences:

“… the significance of punishment, deterrence and protection of the community means that mitigating factors such as youth and prospects of rehabilitation are given less weight.”

108. In that case, the sentencing judge had acknowledged that whilst youth was always relevant to the sentencing exercise for a terrorism offence, it may be given less weight in light of the seriousness of the offence and the absence of any causal link between an offender’s age and his criminal conduct. The Chief Justice, at [138], rejected a submission that such a causal link was established by the applicant having been radicalised at 17 years of age and said to be impressionable:

“I do not think that the fact he was radicalised at the age of 17 leads to the conclusion that there was a causal link between the offence and his youth so as to reduce his moral culpability. … The fact that the applicant may have acquired the beliefs which motivated the acts whilst a youth, does not ameliorate his moral culpability.”

109. The offender is not a person of prior good character. As to his antecedents, his first contact with police was when he was 13 years old. He had extensive contact with the criminal justice system from the age of 15. As noted, he was serving the parole period of a prison sentence for a violent offence at the time of the advocating terrorism offence.

The offender’s physical condition: s 16A(2)(m) of the Act

110. I accept the evidence of Dr Rutkowski and find that, consequent to the offender’s medical needs because of his spinal cord injury, the level of care that he receives in a custodial environment, whether in the Long Bay Hospital or elsewhere in a custodial institution, is not optimal for his already heavily qualified quality of life and for his life expectancy. I take that into account in fixing the offender’s sentence.

The offender’s mental condition and his prospects of rehabilitation: ss 16A(2)(m) and (n) of the Act

111. I note Dr Eagle’s view that the offender’s mental afflictions facilitated him being open to persuasion to adopt violent jihad, her observation that the offender’s mental diagnoses are “enduring and pervasive”, his need for therapy to address his “trauma related symptoms and psychological vulnerabilities” and his refusal thus far of available psychological services whilst in custody, because they are “not confidential”.

112. Accordingly, I am of the view that the offender’s prospects of rehabilitation are dependent upon his deradicalization, which in turn is dependent upon, initially, his preparedness to accept treatment and therapy for his mental conditions and ultimately, the progress that he makes in that regard if and when he begins that process.

113. As reported by the CVE manager, the offender has engaged in the PRAXIS program since September 2022 which, while a positive development, nevertheless was four months before he was found to possess an unapproved mobile phone upon which he breached his bail and ESO conditions by accessing violent jihadist material.

114. I also note that the offender appears to have little in the way of community ties and support beyond his sister and the NDIS. Although he has two children, it seems there has been no recent contact with them.

115. I conclude that the offender’s road to rehabilitation, if eventually successful, is likely to be long and its success is uncertain. His prospects of rehabilitation, as presently assessed, are poor.

The effect of the offender’s mental condition on his moral culpability

116. The offender relies upon the well-known principles enunciated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]-[178], to be considered when sentencing an offender who has a mental illness or mental condition, such as an intellectual disability. I take those principles into account. They warrant a reduction in the offender’s moral culpability, but to be balanced against the extent to which the entrenched nature of his relevant mental conditions mitigate against him accepting treatment and him reconsidering his views on violent jihad.

Bugmy considerations

117. The offender submits that his childhood deprivations enliven the principle enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43] so as to reduce his moral culpability. The Crown concedes that it is a relevant consideration.

117. I note the 2004 psychologist’s report and the passage from Dr Eagle’s report extracted at [86] above. The terms of the majority (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) in Bugmy, at [43], are apposite:

“… The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.”

119. I am also mindful that such considerations are not necessarily mitigatory for all of the purposes of punishment: see Bugmy at [44].

The offender’s experience of custody in the HRMCC

120. The sentence to be imposed will be backdated to incorporate the period of time following the offender’s arrest on 18 February 2021 that he was detained in the HRMCC. I find that the offender’s conditions of incarceration in the HRMCC were more arduous than in the prison population generally, which warrants a reflection in the sentence to be imposed.

A consideration of parity

121. Mr El Matari was arrested on 2 July 2019 and charged with three offences. The first was contrary to s 101.6(1) of the Criminal Code. The second was contrary to s 119.4(1) of the Criminal Code (preparing to enter Afghanistan via Pakistan with the intention of engaging in hostile activity in a foreign country) and the third was contrary to s 102.3(1) of the Criminal Code (knowingly being a member of a terrorist organisation, namely Islamic State).

122. Mr El Matari pleaded guilty to the first two offences and admitted the third offence, on the basis that it would be taken into account on the sentencing for the first offence. He was sentenced by Garling J on 11 October 2021: R v El Matari [2021] NSWSC 1260. His Honour noted, at [21], that the prosecution described the letter that he wrote to the offender as “the most significant fact relied upon by it to demonstrate the extent of the terrorism offence”.

123. The sentencing judge found:

“The terrorism offence is, in my assessment, one which fell towards the lower end of the range of similar offences. In my assessment, the Offender did a lot of talking and took little action. He had only the most generalised of plans. He had no weapons, nor had he attempted to acquire them. He had no followers. He had not persuaded anyone to his cause in Australia. There was no direct or indirect threat to anyone. Although imbued with extremist ideals, the likelihood of any terrorist act coming to fruition in Australia was very low indeed.”

124. The sentencing judge attributed “some weight” to a letter of apology and other recorded expressions of remorse by Mr El Matari for his offending behaviour, which was tempered by him not having given evidence of that contention. His Honour found that the utilitarian value of the plea was significant, warranting a discount of 25 per cent off the sentence. His Honour was satisfied that Mr El Matari had made some attempts to renounce his violent Islamic extremist views, but was not satisfied that he had made any progress on a path to rehabilitation.

125. His Honour handed down an aggregate sentence of 7 years and 4 months, with a non-parole period of 5 years and 6 months. The indicative sentence for the first offence was 4 years and 6 months, after a discount of 25 per cent.

Sentence

126. The consequences of the offender’s spinal cord injury in particular, and to a lesser extent the reduction in his moral culpability consequent to his mental health issues and his appalling childhood experiences that inevitably shaped his attitudes and behaviour, render this a difficult sentencing exercise that might reasonably be regarded as unique in the sense that there is little guidance to be derived from comparative sentences and, equally, to be provided by this case. Pursuant to s 17A of the Act, a court shall not pass a sentence of imprisonment on a person for a federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. I am satisfied that a sentence of imprisonment is appropriate. In my view, the starting point for the sentence is 8 years. After reducing the sentence by 25 per cent for the utilitarian value of the offender’s plea of guilty, the sentence to be imposed is 6 years. The non-parole period, fixed consistently with s 19AG of the Act, is a period of 4 years and 6 months.

127. As noted, the offender’s exclusive custody in relation to this offence commenced on 18 February 2021 until he was released pursuant to a grant of bail and an ESO on 4 May 2022. That is a period of 1 year, 2 months and 17 days. He returned to custody, upon his arrest for breaching the conditions attached to his ESO, on 27 January 2023. He was again refused bail in relation to this matter on 6 February 2023 which, as of the date of this judgment, is a period of 9 months and 3 days, thus comprising a total period of 1 year, 11 months and 20 days.

128. I note that the offender has been serving the sentence that was imposed for the breach of the ESO conditions since 28 January 2023. The Crown concedes that the period that the offender was serving that sentence should be taken into account in its entirety for this sentence as well, and that 75 per cent of the period that the offender was on strict bail conditions and confined by his spinal cord injury, which is another 172 days, should count towards his sentence on the basis that it was quasi custody. I concur with those submissions. I will backdate the commencement of the sentence to 23 May 2021.

129. Accordingly, for the offence contrary to s 101.6(1) of the Criminal Code Act 1995 (Cth) and taking into account the offence contrary to s 80.2C(1) of the Criminal Code pursuant to s 16BA of the Crimes Act 1914 (Cth), I sentence the offender to imprisonment for a period of 6 years, backdated to commence on 23 May 2021 and to expire on 22 May 2027, with a non-parole period of 4 years and 6 months, to expire on 22 November 2025.

Explanation to offender

130. I am obliged by s 16F of the Act to explain to you, Mr Lawrence, the effect of this sentence. You are sentenced to imprisonment which started on 23 May 2021 for a total term of 6 years of which you must spend at least 4 years and 6 months in custody before being released on parole. Whether you are released on parole is a matter to be determined by the Attorney-General of the Commonwealth of Australia having regard to your progress whilst in custody.

131. I am also obliged to warn you, pursuant to s 105A.23 of the Criminal Code, that you may be the subject of an application for an order for your detention or for an extended supervision order at the completion of your term of imprisonment. Such an application may be made before the end of your sentence.

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Endnotes

Decision last updated: 24 November 2023