R v Mallah

[2005] NSWSC 317

CITATION:	R v Mallah [2005] NSWSC 317
HEARING DATE(S):	21/3/05 - 6/4/05, 15/4/05
JUDGMENT DATE :	21 April 2005
JUDGMENT OF:	Wood CJatCL at 1
DECISION:	HIS HONOUR: Zaky Mallah, for the offence to which you have pleaded guilty, I sentence you to imprisonment for 2 years and 6 months to date from 3 December 2003 and to expire on 2 June 2006. I make an order that you be released on 2 September 2005 upon giving security, by way of a recognisance, without surety, to comply with the following conditions, namely that: (i)You will be of good behaviour for a period of 2 years from 2 September 2005; (ii)You will, during that period, be subject to the supervision of the New South Wales Probation and Parole Service, and obey all reasonable directions of that Service as to your conduct, including any directions which it may make, as to your taking up of any accommodation which is offered to you through the good offices of the Mufti, Sheik Hilaly, or of the Lebanese Muslim Association, and as to your attendance at, and participation in, the mentoring and other programs offered by that Association and by its Youth Guidance Leader.

CATCHWORDS:	Criminal law - plea of guilty - recklessly making to another person a threat to cause serious harm to a third person, being a Commonwealth public official, by reason of the status of that third person - sentencing principles - issues of personal and general deterrence.
LEGISLATION CITED:	Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth)
CASES CITED:	R v Doff [2005] NSWCCA 119 R v Israil [2002] NSWCCA 255 R v Lawrence [2005] NSWCCA 91 R v Scognamiglio (1991) 56 A Crim R 81
PARTIES:	Regina Zaky Mallah
FILE NUMBER(S):	SC 2004/2101
COUNSEL:	D J Fagan SC with G J Bellew (Crown) P R Boulten SC
SOLICITORS:	Commonwealth Director of Public Prosecutions Murphy's Lawyers Inc

LOWER COURT JURISDICTION:

- 6 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WOOD CJ at CL

Thursday 21 April 2005

2004/2101 Regina v Zaky MALLAH

SENTENCE

1 HIS HONOUR: On 21 March 2005 the Prisoner was indicted upon two counts alleging, in each case, that he did an act in preparation for or in the planning of a terrorist act, contrary to s 101.6(1) of the Criminal Code Act 1995 (Cth); and upon one further count of recklessly making to another person a threat to cause serious harm to a third person, being a Commonwealth public official, by reason of the status of that third person, contrary to s 147.2 of the Criminal Code Act 1995.

2 After a trial before a jury, he was, on 6 April 2005, acquitted of the first two counts. No verdict was taken in relation to the third count, for the reason that, on 29 March 2005 he changed his plea to one of guilty. He now stands for sentence on that third count.

Facts

3 Although the Prisoner was acquitted of Counts 1 and 2, the offence to which he pleaded guilty was so closely connected with the facts, upon the basis of which those charges were preferred, that it is necessary to recount the full history of the events which preceded his arrest on 3 December 2003.

4 On 21 May 2002 the Prisoner applied to the Department of Foreign Affairs and Trade (DFAT) for a passport. He was interviewed by officers of the Australian Security Intelligence Organisation (ASIO), and on 7 June 2002 he was advised that his application was refused, by reason of an assessment that he was likely to engage in conduct that might prejudice the security of Australia or of a foreign country.

5 The refusal of the passport was an occasion for considerable anguish on the part of the Prisoner, as it prevented him from travelling to Lebanon where he hoped to meet up with a family into which his brother had married, and to meet a potential bride who had been the subject of matrimonial discussions within their respective families.

6 The Prisoner filed an application seeking a review of the passport decision by the Administrative Appeals Tribunal (AAT) which conducted a hearing in March 2003. For part of that hearing both the Prisoner, and his legal advisers, were excluded from the hearing room, while evidence, considered to be important for security reasons, was tendered. Those proceedings were stood over part heard and were due to be relisted in December 2003.

7 Both before and after the initial hearing, the Prisoner's case attracted media attention through radio and television and in the Australian and Daily Telegraph. In October 2002, following the Bali bombings, he made appearances on the television programme "A Current Affair", and on the Alan Jones morning radio programme. These appearances drew a good deal of adverse comment on talkback radio, as well as from friends and relatives. It also led to him receiving some counselling or advice from within the Muslim community.

8 There were some break-ins at his premises which led to him being relocated by the Housing Commission, and which the Prisoner attributed to persons who had been angered by his public observations.

9 By this time he was, on his own account, upset and angry with the government, ASIO and DFAT, and also with the members of the Tribunal, and had formed a belief that his phone was being intercepted and that he was being subjected to surveillance and monitoring. The attention, which he was attracting, had the effect of driving away his family and friends, who did not want to give an appearance of being associated with him.

10 In June and September 2003, he made some telephone calls and sent text messages to two associates, in a somewhat thinly disguised code, in the course of which he made inquiries about obtaining a weapon. As a result of these exchanges, he acquired a Sterling .22 rifle and about 100 rounds of ammunition, on 27 September 2003.

11 Police became aware of this purchase and naturally were concerned at this development. As a result, a search warrant was executed at his home on 28 September. The rifle and ammunition were found along with a number of documents, including a handwritten will, a printed document "How can I prepare myself for Jihad", a handwritten letter which appears to have been a message to ASIO, and a typed manifesto setting out his grievances and identifying ASIO as his target, as well as a copy of a job application and supporting documents which he had sent to ASIO.

12 The Prisoner was arrested and charged with firearms offences arising out of his possession of the rifle and ammunition, and of the incorrect way in which they had been stored. This led to him being fined in the Local Court at Bankstown, on 30 October 2003. He was informed, some time during the ensuing weeks, that the Crown intended to appeal against the leniency of the sentence.

13 His arrest, and the subsequent proceedings, attracted further media attention, and naturally enough also guaranteed that he would remain under surveillance. By this time it is evident that he was beginning to enjoy, if not to crave, the media attention, which was providing him with an interest or cause in an otherwise unfulfilling or empty life. As a result he encouraged further contact particularly with The Australian, and The Daily Telegraph but also with several television stations.

14 In the course thereof he showed, or sold, to the journalists copies of some of the documents which police had earlier seized, as well as some photographs of himself in dramatic poses, holding a knife, and wearing the kind of garb which, it seems, he considered appropriate for a would-be terrorist or suicide bomber. It is also evident that he made it known that he had made a videotape which, amongst other things, included recitations from the Koran, images of himself, and a recitation of what purportedly was to be his last message to the world.

15 In the weekend edition of The Australian of November 22-23, he featured in an article on the front page entitled "Tortured World of an Angry Young Man". It contained some of the photographs that he had supplied, and extracted portions of his manifesto or final message. Reference was made to his grievances and prior arrest, and the article concluded with some observations as to his potential dangerousness and vulnerability to manipulation, noting that "without urgent help, Zak Mallah, Islam and his problems make a deadly cocktail".

16 It was in this environment, that the Counter Terrorist Command, not surprisingly, and entirely appropriately, undertook an operation using an undercover operative, to investigate whether the Prisoner was in fact planning a terrorist related offence. This involved the operative "Greg" making telephone contact, in the guise of a freelance journalist who was interested in writing a story on the Prisoner, and later speaking face to face with him, between 28 November 2003 and 3 December 2003.

17 It was in the course of these discussions that the Prisoner made the threats to kill officers of ASIO or DFAT, in the course of a siege, which he said he had planned at the building of one or other of those agencies. It was these threats that gave rise to the offence to which he pleaded guilty.

18 The "plan" as recounted by him involved the surveillance of the building, after which he would make an entry armed with a weapon, hold its occupants hostage and shoot some of them. He indicated that he then expected police would be called to the scene, and that they would, at his request, permit Greg to enter the building with a video camera, by which Greg could record his message, and his execution by police when he either shot, or threatened to kill, more hostages.

19 In the course of these meetings, there was a progressive disclosure of this "plan", accompanied by discussions leading to the sale for $3000, to Greg of the video which the Prisoner had prepared, together with some photographs of himself holding a knife and in stylised Islamic extremist dress and poses, and his manifesto. The video was to be made available so as to give to Greg, as an "independent journalist", a newsworthy item, which he could release for broadcast in return for appropriate payment.

20 At the same time as these discussions were taking place, the Prisoner was also in contact with journalists from The Australian, and The Daily Telegraph and possibly also Channel 9, with a view to obtaining further coverage and the sale of photographs or the video.

21 The act of acquiring the rifle with the intention of killing officers of ASIO or DFAT, was the basis for the terrorist act charged in Count 1; while the sale of the video, photographs and manifesto for use in the "planned" siege was the basis for the terrorist act charged in Count 2.

22 There were issues at the trial in relation to Counts 1 and 2 as to:

(a) Whether the accused had a genuine plan by which he intended to kill ASIO or DFAT officers;

(b) If he had such a plan and intention whether by killing such officers he had an intention:

(i) to advance a political, religious or ideological cause, as distinct from some purely personal cause either to secure a passport, or to exact revenge on ASIO or DFAT for obstructing its issue, or to gain publicity for himself; and
(ii) to coerce or influence by intimidation the government of the Commonwealth, to alter its policies in relation to persons such as himself, or to do something that it would not otherwise have done.

23 It was the case for the Prisoner that he had never had a serious plan involving an intention to take the building hostage, or to kill anyone or to die himself in a siege situation. He gave evidence to the effect that he had acquired the rifle for self-protection because of the expectation of break-ins and threats; and also in the expectation of being arrested and placed before a Court, so that he could expose his grievances and obtain judicial assistance.

24 Additionally, he said that his dealings with Greg were to secure publicity for himself and to obtain money for items which he considered newsworthy; and alternatively, in the event of Greg being part of an undercover operation, rather than a journalist, of being arrested and of then using the opportunity of going to trial, so as to obtain redress for his grievances. He also claimed that his discussions with Greg were all "nonsense talk", and that he was effectively stringing him along, making the conversation sound real, so that he could get the $3000 which Greg had indicated would be available for the video.

25 At all material times, it was the case that the Prisoner was in straightened financial circumstances, and living in a Housing Commission flat, without any substantial means of income. There was no evidence of him having acquired or made inquiries about acquiring a second gun between 28 September and 3 December.

26 By its verdict it is clear that the jury were not satisfied beyond reasonable doubt of one or other of the elements which the Crown had to establish, in order to make Counts 1 or 2 good, having regard to the terms of s 101.6(1) and the definition of "terrorist act" contained in s 100.1 of the Code. Their verdict does not, however, disclose in respect of which of the issues mentioned, the Crown failed.

27 By reason of the terms in which s 147.2 is framed, it was not necessary for the Crown to establish for the third count that the person threatened actually feared that the threat would be carried out. Moreover the offence was charged in terms of the Prisoner's recklessness as to whether the threat would cause Greg to fear that it would be carried into fruition; it being sufficient, by reason of the definition of "reckless" (s 5.4(2)) that he was aware of a substantial risk that Greg would entertain that fear and that it was unjustifiable for him to take that risk.

THE SENTENCING PRINCIPLES

28 The Prisoner is to be sentenced in accordance with the following provisions of the Crimes Act 1914 (Cth):

16A Matters to which court to have regard when passing sentence etc.
(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

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

(a) the nature and circumstances of the offence;
(b) other offences (if any) that are required or permitted to be taken into account;
(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;
(d) the personal circumstances of any victim of the offence;
(e) any injury, loss or damage resulting from the offence;
(f) the degree to which the person has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner;
(g) if the person has pleaded guilty to the charge in respect of the offence—that fact;
(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;
(j) the deterrent effect that any sentence or order under consideration may have on the person;
(k) the need to ensure that the person is adequately punished for the offence;
(m) the character, antecedents, cultural background, age, means and physical or mental condition of the person;
(n) the prospect of rehabilitation of the person;
(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.


…

17A Restriction on imposing sentences

(1) A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, 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.

…

THE NATURE AND THE CIRCUMSTANCES OF THE OFFENCE

29 The Prisoner is to be sentenced only for the threats which he made to Greg during the period charged, and not directly or indirectly for the conduct which gave rise to the counts of which he was acquitted. The wider history is relevant so far as it places the present offence for which the maximum prescribed penalty is imprisonment for 7 years, into context and throws light, for example, on whether the words spoken were uttered seriously, or whether they were the empty words of a foolish, naïve, emotionally immature and manipulative man, who on his own admission, engaged in a sustained deception of Greg.

30 To some extent that depends upon an examination of his evidence, and also upon the question whether he may have been encouraged, unintentionally by Greg, to say things that he did not really mean, when the latter was, perfectly properly, questioning him in an attempt to discover whether he was genuinely threatening to kill an ASIO or DFAT officer, or whether it was all empty bluster.

31 The evidence which the Prisoner gave during the trial was, in many respects, self contradictory, illogical, bizarre and downright foolish. His credibility remains very much in issue, particularly in so far as he gave the impression, at times, of saying virtually anything that came to his mind, and demonstrated himself capable of deception and manipulation of others.

32 Paradoxically, however, I am of the view that herein lies the answer to the question whether his threats were genuine or simply the product of a fertile imagination which had been allowed, or perhaps more accurately encouraged, by the media attention which he received, to run wild.

33 It does seem to me to have been regrettable that some sections of the media took up the Prisoner as a person of interest, and gave him an entirely underserved and unnecessary exposure, particularly if it be the fact, as he has claimed, that he was paid for his cooperation.

34 Had real fears been entertained as to his potential dangerousness, then the preferable course surely would have been to pass any relevant information concerning him, to the appropriate policing and security agencies. Had he been dismissed as an attention seeker, of no moment, then there surely would have been no occasion to give him the extensive public exposure which he obviously enjoyed and indeed craved.

35 It is not to be overlooked that had the Prisoner's plan in this case been genuine, the journalists dealing with him, and indeed any police officer doing so without a controlled operations certificate, risked committing offences themselves, under the widely crafted terrorism laws, for example, under s 101.4 or 101.5 of the Criminal Code if they obtained possession of, or collected, documents connected with the preparation for a terrorist act by him; or under s 103.1 if they paid monies to him and were reckless as to whether they might be used by him to facilitate or engage in such an act.

36 Leaving this case aside, to continue discussions with a suspect in the position of the Prisoner, or to give him publicity, risks trampling all over any covert operation that may have been mounted under strict controls by professional policing and intelligence agencies, thereby potentially frustrating the collection of valuable intelligence that may have prevented a genuine terrorist event. Any investigation of such a person is far better left to professional agencies with the necessary training and access to intelligence, and should, in my view, be absolutely avoided by the media.

37 Furthermore, placing a person such as the Prisoner into the public spotlight is not only likely to encourage him to embark on even more outrageous and extravagant behaviour but, perhaps more importantly, it risks unnecessarily heightening the existing public concerns about terrorist activity as well as encouraging or fanning divisive and discriminatory views among some members of the community.

38 I have reached the conclusion in this case that the Prisoner was an idiosyncratic, and embittered young man, who was to all intents something of a loner, without significant prospects of advancing himself. I am not in a position to determine whether he was deservedly deprived of a passport, but I am satisfied that he personally felt that he had been the subject of an injustice.

39 I am similarly satisfied that he used the occasion of his grievance with DFAT and ASIO, and the media attention which came his way, to make something of himself so as to gain status, as he saw it, among those who may have shared his extremist views, and to present himself as an alternative voice of Islam. That he saw things this way reflects the impression which Keysar Trad formed of him. It also accords with the capacity that I find he has, for a vivid imagination and for some degree of religious fervour.

40 My acceptance of his sense of injustice does not mitigate his criminality. At most it helps to explain why he behaved in the way that he did. It does not excuse it. For those who feel that they have been unfairly treated in relation to passport decisions, or in relation to the attention of policing or security agencies, there are lawful avenues available for redress other than the making of threats.

41 While I accept that the Prisoner enjoyed posing as a potential martyr, and may from time to time, in his own imagination, have contemplated creating a siege and taking the lives of others, I am satisfied that in his more rational moments he lacked any genuine intention of doing so.

42 It is against this background that the objective criminality of the offence to which the Prisoner pleaded guilty is to be assessed. Clearly there is a significant difference in the criminality involved in a threat which is accompanied by a genuine intention to carry it into effect, and one which is made jocularly or by way of bluster, without any such intention.

43 They occupy different ends of the spectrum. The present case, I find, falls somewhere about the mid point in that range, and certainly not toward the lower end, because of the fact that it involved considerably more than an isolated observation.

44 Although the Prisoner was, to a considerable degree, led on by the media, whose coverage effectively brought about the meetings with Greg in which the threat was made, that threat could not be readily dismissed as having been purely of a nuisance kind.

45 History shows that those with bizarre and extremist views, who can easily be written off as harmless nuisances, can nevertheless carry out or attempt acts of violence, with far reaching consequences. For that reason the Counter Terrorist Coordination Command had no alternative, in this case, other than to commence an undercover operation to determine whether the Prisoner was a harmless nuisance, or a person who presented as a genuine threat.

46 Its time and resources, as well as those of other officers of the Commonwealth had to be diverted to this case. The strategy adopted by the undercover officer was both professional and entirely appropriate in the circumstances which presented themselves. Although there was an inevitable risk that any attempt to gain information about the Prisoner's true intentions might encourage him to embellish what he had already put into train, so as to gain more publicity for himself or money, there was little else that could be done. I am not in fact persuaded that anything which Greg said in this context was inappropriate, or that it was the catalyst for the threats. That it did not have such an effect is supported by the circumstance that the Prisoner had, to a considerable extent, already disclosed his plan in the videotape and the other documents, which he had prepared well before meeting Greg.

47 In summary, I find that the offence was serious, in so far as it necessarily occupied the time and resources of agencies that should have been available for potentially more important matters.

48 Counsel for the Prisoner pointed out that the offence to which the Prisoner pleaded could have been dealt with in the Local Court. I accept that to be the case, but clearly it was appropriate for it to have been dealt with on indictment. Moreover the fact that it could have been dealt with as a summary offence, does not of itself alter the degree of objective seriousness which attaches, that being a matter which can only be determined by reference to the nature and extent of his wrongful conduct.

Personal History

49 The Prisoner was born in Australia on 11 August 1983, of Lebanese parents, and was 20 years of age at the time of the offence. He grew up in the Sydney south western area, and attended Punchbowl Boys High School and then the Noor Al Houda Islamic College to Year 10. He commenced a TAFE course at Bankstown in management and leadership, and worked on a casual basis for Franklins as a shelf stacker, and later for Domino's Pizzas in a delivery capacity.

50 He has two brothers, one sister and one step sister. His mother, for whom he had been a primary carer during her illness, died when he was about 13 years of age. His father remarried but died when he was about 17 years of age. The relationship with his step mother was strained, and the two deaths, and the lengthy illness of his mother affected him seriously. A school counsellor and family friend, Mae Abumahmoud gave evidence confirmatory of the fact that he had been distracted during this period of his schooling, by reason of the problems within the family.

51 He claims to have been a devout Muslim, who had undertaken a pilgrimage with his father to Mecca, and to have been a worshipper at the Mosque and Prayer Hall at Lakemba. It is, however, apparent that he had adopted a distorted and unorthodox view of the Islamic faith, which had been of sufficient concern to Keysar Trad to cause him to counsel the Prisoner toward a more acceptable and orthodox interpretation of the Koran.

Antecedents and Prior Character

52 The Prisoner had no prior convictions other than the firearms offences for which he was fined.

53 There was evidence from three witnesses in relation to his character, namely Mae Abumahmoud, Alison Noori, who had been his teacher in 1998, and Keysar Trad, who is the President of the Lebanese Muslim Association and a community leader as well as a person well versed in the Islamic faith.

54 In general terms their evidence was to the effect that the prisoner was by nature a gentle and harmless person, who was not given to violent action, but who was also naïve, talkative, attracted by publicity, and preoccupied and depressed by the events surrounding his inability to obtain a passport, which he perceived to have involved an injustice.

55 Keysar Trad said that he had counselled him on his concerns, and had tried not only to persuade him to a more orthodox view of his faith, but also to dissuade him from making further public comments that were harming himself and bringing his community and his religion into disrepute. He said that the Prisoner had assured him that he had not intended to harm anyone and that the observations in his manifesto were "merely words". He saw him as a "movie producer" or "showman" creating entertainment for general consumption, and as perceiving himself as a "star" who was in fact the victim of the media attention which he had attracted. He described the Prisoner as a placid person who would not harm other people, but who was prone to going into escapades of his own imagination.

56 Both Keysar Trad and the Mufti Sheik Hilaly have indicated a willingness to find accommodation and mentors who would be able to keep a close eye on him post release, and to persuade him to a more rational and acceptable view of life.

57 He has not been a user of drugs or alcohol.

58 As a result of his behaviour in recent years, he has become estranged from his brothers and sisters, and also from at least some sections of his friends who presumably regarded his conduct as unacceptable. That there is some possibility of him regaining a degree of family support is indicated by the fact that some of his relatives have visited him, in recent times, while on remand.

The Plea of Guilty and Remorse

59 The plea of guilty was offered mid trial, and upon that basis was not, at first blush, an early plea. However to say that overlooks the circumstance that initially the Prisoner was charged only with the offence which became Count 2 in the indictment.

60 Well prior to the committal hearing he offered to plead guilty to a s 147.2 offence, which is not a terrorist offence, in satisfaction of that count. The offer was not accepted, and subsequently the indictment was framed in terms which added Count 1, as well as the count to which he had offered a plea.

61 In these circumstances, I consider it only fair to approach the plea as one that was offered at an early stage but not accepted, and as indicating a measure of contrition as well as an acceptance of responsibility and a willingness, by the time of the offer, to facilitate the administration of justice.

62 In circumstances where there clearly were issues of substance in relation to Counts 1 and 2, and where there was an obvious overlap between all three counts, the delay in offering the plea to the third count did not add to the length or complexity of the trial at all.

63 Otherwise it is the case that the defence was conducted efficiently and responsibly and in a way that did not waste any time or require the formal proof by the Crown of several matters which may have prolonged the trial, or unnecessarily trespassed on matters of national security. The Prisoner is entitled to some benefit for that degree of co operation: R v Doff [2005] NSWCCA 119 at [58].

64 Evidence was led from the Prisoner during the sentencing proceedings that while he formerly regarded his actions as having been justified, he now appreciates that his conduct was stupid, was likely to have caused others to be scared, and wasted a lot of taxpayers money. He claimed to have learned a lot of lessons including the need to avoid making further threats and to seek professional help and assistance from the Muslim community instead. To the extent that these observations indicate an expression of regret and an understanding of the wrongfulness of his conduct, they may be accepted as evidence of remorse and of insight into his criminality, albeit emerging only from the time that he was placed on trial.

65 In truth he has been his own worst enemy, since his behaviour was exceedingly foolish, and was such as not only to divert the attention of those engaged in anti-terrorist operations from investigating potential threats of a more serious kind, but also to make it most unlikely that he will ever be given an Australian passport.

66 He is however entitled to a discount at the upper end of the range for his plea, remorse and contrition.

Physical and Mental State

67 There is no suggestion of the Prisoner suffering from any form of physical illness or disability. Reports were provided by Tim Watson-Munro, a Clinical Forensic Psychologist, and by Dr Olav Nielssen, a Consultant Psychiatrist in relation to his mental state.

68 Mr Watson-Munro reported that there was nothing in the Prisoner's presentation to suggest the presence of any psychotic illness, although he added that "it was arguable that [he] was suffering features of a chronic adjustment disorder with depressive and anxiety features" before the series of events that led to the offence. This was a somewhat qualified diagnosis which he expressed in slightly different, although still not in unequivocal terms, in his oral evidence, which was to the following effect:

"Q. And you have reached some conclusions about his mental state in the period leading up to and including the time of his offending conduct?
A. That's correct. I, of course, did not know him then, but he described a range of life events which enabled me to hypothesise that in all likelihood he was suffering from adjustment disorder.

Q. What is adjustment disorder?
A. It is a condition described in the DSM-IV which is the diagnostic manual, the fourth edition, which describes a range of psychological symptoms arising from an individual's poor past to cope with life events; in other words, they have difficulty adjusting to changes that those life events impose on them.

…

Q. Given your opinion about the state of his mental health at the time of the commission of this offence, are you in a position to be able to offer an opinion about how that condition would have impacted on his decisions to threaten these officers in the way that he did?
A. Well, I'm not suggesting he was not aware of what he was doing, but certainly the impact of these issues on him became more frustrating and he had difficulty to think through his behaviour, but not to the point of being unaware of the consequences of his behaviour.

Q. What about his ability to discern the correctness or justification for what he was doing?
A. Well, it was diminished. I am not saying he was unaware of these issues, but the predominant matter affecting him was getting his passport. A strong sense of frustration in not being able to obtain his passport and on top of that, the life events that I have described; the loss of his parents in particular.”

69 Mr Watson-Munro recorded that the Prisoner expressed to him a continuing feeling of a strong sense of resentment and injustice concerning what had happened to him, and that his mood state had been severely aggravated by his arrest and incarceration. He said that while denying any suicidal ideation the Prisoner had also described ongoing symptoms of depression, reflected in a variation of energy levels and a loss of appetite.

70 Dr Nielssen's opinion differed to some degree from that of Mr Watson-Munro in that he excluded a diagnosis of any form of psychiatric disorder, and did not find the Prisoner to be particularly depressed. He found him to be of normal intelligence. He saw some signs in his interview that were consistent with him being a person who sought attention, and who had some histrionic personality traits, but otherwise found no abnormality. The Prisoner's behaviour, he said, "appears to have been to attract attention to himself because of an obstinate and idealistic belief that he has been a victim of injustice".

71 I accept Dr Nielssen's opinion in preference to the somewhat qualified opinion of Mr Watson-Munro.

72 Even if it be the case that the Prisoner has an adjustment disorder of the kind mentioned by Mr Watson-Munro, it does not seem to me to be of the kind that excused the Prisoner's criminality or that would lessen the need for both general and personal deterrence.

73 Before any form of psychiatric disorder or other condition can have a relevance for sentencing, in accordance with the well known principles mentioned for example in Regina v Scognamiglio (1991) 56 A Crim R 81; and R v Israil [2002] NSWCCA 255, there does need to be some positive evidence in relation to the extent to which it contributed to the commission of the offence, or to otherwise be relevant in relation to deterrence. It is not enough merely to label an offender with some disorder based on DSM-IV or some other diagnostic measurement scale: see the caution that was given by the Court of Criminal Appeal in this regard in R v Lawrence [2005] NSWCCA 91 at [22] - [23].

Prospects of Rehabilitation

74 Mr Watson-Munro did not offer any opinion as to the Prisoner's risks of re-offending, although relevantly he noted the Prisoner's remark that if successful in the trial he intended to seek exile in Dubai. Dr Nielssen recorded the Prisoner's observation to the effect "I want to stay in gaol until I get my passport", and his additional observation that if he was released now "I would set myself up again…I'd create a scene just to get my passport…I guess I'm just a very stubborn person." He thought him to need further counselling, ideally by one of the well regarded Islamic clerics who might be able to persuade him to retract his statements and to act in his own interests.

75 During the sentencing proceedings the Prisoner resiled from these observations, suggesting that he had changed his mind about this "the second he came to trial", and that he no longer wishes to travel or to have a passport. Whether or not this is a truthful observation remains to be seen, bearing in mind, in particular, the Prisoner's evidence during the trial, that he was an "amazing person" who changes his mind "every five seconds". Subject to those observations I accept that in his current state of mind he does not intend to re-agitate for the issue of a passport.

76 In the Prisoner's favour was the evidence of Mr Trad that confirmed the readiness of Sheik Hilaly to provide him with accommodation post release, and of the Lebanese Muslim Association to take him in for counselling and supervision through its Youth Development Program, which has been successful in providing guidance for other young offenders and for those with extremist views. The Prisoner has indicated a willingness to accept this assistance and guidance.

77 In the light of the history of the matter, the manipulative nature of the Prisoner and the observations made to Dr Nielssen, the prospects of the Prisoner reoffending in a similar way cannot be entirely eliminated. They depend entirely, it seems to me, upon the genuineness of his commitment, that is, whether he will accept the advice and counselling of his religious leaders, and both adopt a more rational and orthodox view of the Islamic faith, and acquire a genuine insight into the wrongfulness of his behaviour and its potential impact on others.

Personal and General Deterrence

78 I am satisfied that the offence was one for which there is a need for a substantial element of general deterrence. Threats directed to the well being of Commonwealth public servants need to be regarded seriously, and absent some frank psychiatric disorder, the present case is not one that calls for any mitigation for this factor.

79 It can never be known, without considerable diversion of resources, and even then rarely with absolute confidence, whether such threats are likely to be carried out. Whether seriously entertained or not, they can occasion genuine alarm to the potential victim, as well as to others who are aware of them.

80 Potentially they can interrupt the operations of government departments, and become the occasion of increased security arrangements that will adversely affect those who need to deal with those departments.

81 For all these reasons such conduct is not to be written off lightly as a prank or as of little moment. Similarly for hoax calls made in relation to airlines and buildings, in the absence of special circumstances, they are to be discouraged by the risk of attracting an appropriate sentence of imprisonment of some magnitude.

82 In this case there is also a need for personal deterrence. The potential for further mischief on the part of the Prisoner is not capable of firm prediction. His behaviour on this occasion suggests that he could well reoffend, unless he abandons his unorthodox and unacceptable views, and accepts proper guidance and mentoring.

Conditions of Imprisonment

83 The Prisoner has been held in continuous custody since 3 December 2003. By reason of his status as a person charged under the anti- terrorism legislation, he was held in conditions of very tight security, initially at the MRRC Silverwater and subsequently in the Multi-purpose Unit at Goulburn, permitting him only very limited periods out of his cell between the time of his arrest and October 2004. Throughout this period he was deprived of any contact with other prisoners, required to eat alone in his cell and permitted only limited opportunities for exercise or access to a telephone or visitors. Whenever moved from his cell to any other location he was accompanied by specially trained correctional officers and placed in restraints.

84 Since October there has been some relaxation in these conditions, although he is still denied access to the oval and gymnasium, and has not been permitted to join the Friday religious services for members of his faith. His correspondence is monitored, his cell door is subject to continuous video surveillance, and he is only moved in the custody of a SWAT team, again in conditions of close confinement.

85 An appeal to the Serious Offenders Review Counsel against the restrictions was dismissed, although with a recommendation for review. His current classification is due for review on 28 April next, and it might reasonably be expected, in the light of the jury verdict, that he will lose the AAU classification which is reserved for those on remand for, or convicted of, terrorist offences.

The Sentence

86 I am satisfied, having regard to the various considerations outlined above, that the only sentence which is appropriate is one of imprisonment. I am also satisfied that it is not appropriate that any part of it should be suspended. Rather, so far as the Prisoner might be released before its expiry, that should occur by way of a recognisance release order.

87 It is appropriate to backdate the sentence to the date on which he went into custody, and to make allowance for the strict conditions in which he has been confined to this time.

88 Zaky Mallah, for the offence to which you have pleaded guilty, I sentence you to imprisonment for 2 years and 6 months to date from 3 December 2003 and to expire on 2 June 2006. I make an order that you be released on 2 September 2005 upon giving security, by way of a recognisance, without surety, to comply with the following conditions, namely that:

(i) You will be of good behaviour for a period of 2 years from 2 September 2005;

(ii) You will, during that period, be subject to the supervision of the New South Wales Probation and Parole Service, and obey all reasonable directions of that Service as to your conduct, including any directions which it may make, as to your taking up of any accommodation which is offered to you through the good offices of the Mufti, Sheik Hilaly, or of the Lebanese Muslim Association, and as to your attendance at, and participation in, the mentoring and other programs offered by that Association and by its Youth Guidance Leader.

89 I need to explain to you that the effect of the sentencing order is that you will serve a period of imprisonment of 1 year and 9 months from 3 December 2003. On 2 September 2005 you will be released upon a recognisance to be of good behaviour for a further period of 2 years during which period you will be subject to the supervision of the Probation and Parole Service of New South Wales, and will be required to obey any reasonable directions which they give you as to your conduct.

90 If you fail to comply with a condition of that recognisance release order, then an information may be laid before a Magistrate, who may issue a summons requiring your appearance before this Court and, if necessary, a warrant for your arrest in order to secure your appearance. If the Court is then satisfied that you have failed to comply with a condition of that order, without reasonable cause or excuse, it may impose a pecuniary penalty of up to $1000 upon you; or take further action which may include amending the original order so as to extend the period for which you are required to give security to be of good behaviour, revoking the original order and directing that you serve the remainder of the sentence that you have not already served, or passing some alternative sentence which is available under the laws of this State, or taking no action.

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