R v MHK
[2016] VSC 742
•7 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0062
| THE QUEEN |
| v |
| MHK |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 5 & 6 December 2016 |
DATE OF SENTENCE: | 7 December 2016 |
CASE MAY BE CITED AS: | R v MHK |
MEDIUM NEUTRAL CITATION: | [2016] VSC 742 |
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CRIMINAL LAW - Sentence – Commonwealth Criminal Code s 101.6(1) - Act in preparation for a terrorist act – Plea of guilty – Maximum penalty life imprisonment - Youth - Accused constructing improvised explosive device – Islamic State propaganda – Islamic State recruiter providing information – Intention to carry out terrorist attack – “De-radicalisation” – Whether effective - Remorse incomplete – Contrition – Youth Justice order – Whether within sentencing range – Recommendation pursuant to s 471 Children, Youth & Families Act 2005.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S McNaughton SC, Director of Public Prosecutions with Mr D Lane. | Commonwealth Office of Public Prosecutions |
| For the Accused | Mr R Richter QC with Ms G Morgan | Stary, Norton, Halphen |
HIS HONOUR:
MHK, on 29 January 2016 you pleaded guilty in the County Court to a charge of doing an act in preparation for, or planning, a terrorist act. The period of your offending occurred between 25 April 2015 and 8 May 2015. On 5 September 2016 when arraigned in this Court, you again pleaded guilty to that charge.
The conduct you engaged in, and which is at the basis of this charge, is contrary to s 101.6(1) of the Commonwealth Criminal Code. The maximum penalty for this offence is life imprisonment with a possible fine of the equivalent of $360,000.00. The Commonwealth Director of Public Prosecutions has rightly submitted that this offences stands ‘at the apex’ of seriousness in offending against Commonwealth law.
At the time of committing this offence between April and May 2015, you were aged 17 years and therefore within the jurisdiction of the Victorian Children’s Court. Your plan, until it was interrupted by police, was to build a bomb and detonate it in a populated area to cause death and injury in the thoroughly misguided cause you became an adherent to. You followed this course as a result of consuming the propaganda distributed by Islamic State and falling within the influence of one other young man in particular.
You are young but I should say at the outset that your conduct and its purpose had the most dreadful of potential consequences – it is very serious indeed.
Until 1 June 2015 this matter was to be dealt with in the Children’s Court but on that date the Commonwealth DPP successfully applied to have it uplifted to the County Court. The order of the Children’s Court was the subject of review in this Court by T Forrest J. His Honour upheld the order for removal from the Children’s Court.
A committal hearing was then listed before the Children’s Court but no witnesses were called and at that stage you indicated your willingness to plead guilty.
On 31 May 2016 the matter was uplifted to this Court.
On 5 September 2016 in this Court, I heard an opening and submissions on sentence from the Commonwealth Director of Public Prosecutions and a plea on your behalf from your counsel. During the course of that plea on your behalf, evidence was called from several witnesses and you also gave sworn evidence to which I will later refer. It is now my responsibility to sentence you for this offence.
Circumstances of offending
The Director opened this matter in detail and that opening and various annexures to the document were tendered to the Court and marked as exhibit A. I have not attached that opening to these reasons but it forms part of the record of the Court. I will endeavour to summarise the effect of the opening in order to adequately describe your offending. Your counsel announced at the commencement of his plea that no issue was taken with the facts as set out by the Director though some matters required explanation.
As I have already noted, you gave sworn evidence during your plea and I will also refer to some parts of that evidence.
At the time of this offence you were living with your family in Melbourne. Your family is originally from Syria having come to Australia some years ago. Some of your family remained in Syria.
Until the beginning of 2015 you were enrolled at high school completing your secondary education. In the early part of 2015, you were going through some emotional difficulties in connection with an anxiety condition. Although enrolled you did not attend school in 2015 for reasons I will come to.
Given your family background, you maintained a strong interest in what was happening in Syria. Your emotional and anxiety difficulties seems to have led you to a deeper involvement in the Islamic religion. As you searched for more information about Syria and your faith, you began absorbing Islamic State (IS) propaganda.
You came to support IS and its campaign of violence with the result that you began to consider how best to assist in the cause as you saw it. One option you wanted to pursue was to travel to Syria and join the fight there. It appeared that doing that was not a realistic option because you needed your parent’s approval to travel and so you considered alternative ways of supporting jihad as you saw it. Another alternative, which you adopted after you began your contact with JH, was to assist the cause as you saw it by launching a terrorist attack here in Melbourne with a view to killing and injuring a significant number of people.
You began corresponding intensively via JH. He was 20 years of age at the time of his death in August 2015 and was from the United Kingdom. He had been a party to a planned terrorist attack in London in 2013 using pipe bombs filled with nails. The information provided from UK authorities indicated that he was a jihadist and left England in August 2013 for Syria where he received training. He was connected with IS, acting as a propagandist and recruiter and was in Syria at the time of his communications with you. He was apparently killed in that country in August 2015.
JH’s communication with you began through the social media platform Facebook and then through an internet messaging service called Surespot. These communications began in early April 2015. Apart from the usual propaganda, you communicated with him about technical matters such as computer encryption and later about bomb-making.
The outcome of those communications with JH was that rather than you going to Syria to fight, he would encourage you to remain in Melbourne and assist you to construct explosive devices. He did that by sending you electronic links to enable your access to bomb-making manuals. These instructions made available to you were found in your possession when your home was searched by police. The primary documents were titled ‘Make a bomb in the kitchen of your mom’ which you said you downloaded from the internet after JH sent you the link.[1] There was also ‘Pressure cooker backpack bomb with switch detonator’. These documents set out in alarming detail how to make and use such devices and in order to avoid these instructions being in some way discovered, you determined that they should be encrypted on your computer. The evidence indicated that by following the instructions found within those documents you could produce one or more viable Improvised Explosive Devices (IEDs) without any further knowledge of explosives or the manufacture of such devices. The bomb-making manuals that were found explain how such devices can be made from readily available materials that can be purchased without raising suspicion. They emphasise the need for large amounts of shrapnel to increase the number of deaths and injuries from such an explosion. They go on to urge that the bombs should be placed in a crowded area and camouflaged with materials like cardboard that will not inhibit their lethal effect on the victim or victims.
[1] Transcript at p 117.
In relation to your source of this information, JH, you said in your evidence before me that you saw him as someone who sacrificed his life to go and join the fight and defend the Muslim nation. You also said you respected and admired him and believed he had a high position in Islamic State.[2]
[2]Transcript at p 126.
Amongst the records located by police were your communications with JH which began on 7 April 2015. Those records indicate that he provided you with the bomb making manual which you appear to have first opened on 25 April 2015.
So, between 25 April 2015 and 8 May 2015 you searched for and obtained materials and documents related to IEDs. Once you began, there were two kinds of bombs that you considered. The first was the so-called pressure cooker bomb. The second type was a pipe bomb.
In both cases they involved assembling a container, or several containers, that would explode under pressure spreading shrapnel with great force such as to kill and seriously injure. One of the main ideas was to be able to create these bombs with materials that were freely available in the community. The explosive mixture included ground up match heads from a very large number of matches coupled with sugar which could then be detonated.
A factual issue arose during the evidence about which form of device you were planning to use. In effect, your evidence was that although in the early stages of planning you considered using a pressure cooker and went and bought one with a 6 litre capacity on 28 April 2015, that idea was one you abandoned.
Your mother also had a pressure cooker to which you had access and you had sent a photograph of that cooker to JH. You said that having abandoned this plan you put the pressure cooker you purchased back in its box and placed it in the garage at your home. In your evidence you said that you told JH that you didn’t think using the pressure cooker was a good idea and that you did not know how to use it. You claim he told you not to worry about it and to just do other things[3]. In my opinion, and given the volume of potential shrapnel you had acquired, I find that evidence very difficult to accept. As the Director pointed out, the evidence indicated that there were a very large number of screws to be used as shrapnel and well in excess of what could be used in the elbow shaped pipe mechanisms. The pressure cooker you purchased was in the garage and it was in there that some of your preparations were being carried out in relation to the bombs you were making.
[3]Transcript at p 152.
I am not able to say what method you would have ultimately used had you not been arrested. In my opinion and despite your evidence I do not think you had made a final decision about that except that at the very least, you intended to use a pipe bomb and that there were to be several of them.
Based on your communication with JH, the plan was that a form of IED would be detonated in the Central Business District of Melbourne or on a train or police station. In your evidence you said you thought that such a step was what God wanted from you.
On Friday 8 May 2015, you were arrested at your home by police and the premises were searched over the next four days. You have accepted in your evidence that in some respects you were not entirely helpful or honest with the police.
The comprehensive list of items found are specified in detail in the prosecution’s written opening for this matter. Among those items and apart from two pressure cookers, under your bed there were three elbow‑shaped lengths of steel pipe with respective end caps fitted and four elbow‑shaped lengths of steel pipe along with eight end caps, which were not fitted together. The three lengths with ends fitted were deemed by police too dangerous for further examination. There were also five boxes of screws in total found in your bedroom which you accepted was for the purpose of making shrapnel.
As I have already described, a report on the examination of those items illustrates that at the time of your arrest, you were part way through the construction of several pipe bombs and had assembled the means to construct a pressure cooker bomb, though as I have noted you claim to have abandoned that project.
Police engaged the assistance of the Federal Bureau of Investigation (FBI) in the United States who suggested the devices you were making were similar to those used in the Boston Marathon bombing in April 2013. Your efforts in the making of an IED were consistent with the Boston IEDs in their configuration and because the instructions on how to make the bomb located in that investigation are the same as you had been provided with by JH. One difference was that the use of the match head and sugar mix as an explosive had not been encountered in the United States. The basic object of the exercise is to create a build-up of pressure in the container whether a pressure cooker or metal pipe resulting in the explosion of the container creating metal fragments which may cause significant injury and death.
The written material, over and above the instructions on bomb making was in the ISIS-style language of hate for non-Muslims and Shiite Muslims. There were a number of documents and Facebook records located which record your own writing and which give some insight into your state of mind at the time. As an example, the Director referred in opening to the following:
In 2015 (the accused) made a large number of postings using that (Facebook) account which expressed his hatred for kuffar, non Muslim, and for those Muslims who were regarded as apostates, and his support of violence by Islamic State and other such organisations. Examples of these postings included (a) a Facebook post dated 3 May 2015, ‘Shias might look like humans but don’t be fooled. They are animals that learnt how to talk. They are the scum of the earth. They're nothing more than cockroaches who are using up the resources on earth. The next time you see one slap him across the head’.
Apart from the documents which gave instructions about the making of a bomb, other material of a jihadist nature was located in your possession including an edition of the Islamic State propaganda magazine Dabiq which includes references to two attacks in Australia by Man Haron Monis in Sydney and Numan Haider in Melbourne.
Your actions in acquiring the materials necessary to make a bomb including acquiring several of the necessary parts only two days before your arrest made your intentions clear enough. You also gave indications of what you were planning in private messages.
On 7 May 2015 in the course of an exchange using what was identified as the AY Facebook account with user AW, you said that you had deleted your account permanently. AW responded, ‘If you leave permanently I will surely miss you.’ You replied, that you would miss him too but said you would meet in paradise and you would be birds. Green birds in paradise is some form of signification of martyrdom.
In your evidence you were asked as follows:
You pleaded guilty to an offence which says that you were preparing, doing acts in preparation for a terrorist act, so it's more than a possibility or a chance in your mind?‑‑‑Well, maybe it was a strong possibility, but there was chance. I was a bit hesitant as well, a bit scared, so I don't know what would have happened.[4]
[4]Transcript page 148
The way you wrote and the sentiments you expressed are, in my opinion, compelling evidence of your intentions at that time. These writings were extensive and angry and they reflected the hostile propaganda of Islamic State that has now become all too familiar.
On Friday 8 May 2015, after your arrest you were interviewed by police. It is sufficient to say that in that interview you did not meaningfully contribute to the investigation.
I am going to sentence you on the basis that the only reason these bombs were not fully completed and not then activated by you in a public place was because the police intervened and arrested you. I am satisfied that you had every intention of using them, as you had been urged to do by JH, knowing their potential consequences, and your intention persisted until the intervention of the police.
Personal circumstances
You were born on 10 February 1998 in Melbourne and are therefore now 18 years of age. At the time you committed this offence you were 17 and living with your parents and brother and sister.
Your parents are Sunni Muslims, though not strict. Your family were close and integrated and had left Syria due to the discrimination that was experienced by Sunni Muslims. Your early life was as part of a stable family. You played sport and maintained an interest in language speaking Arabic as well as English. As a young child you went to Syria twice but you have not been there since the age of 6 years.
However, at some point tension arose between you and both your father and sister, more due to you than them. That seems to have changed since you have been at the Melbourne Youth Justice Centre at Parkville in recent times and those relationships have consequently improved.
Your primary education and the first part of your secondary education was satisfactory. You attended Islamic schools and your academic performance varied. In 2014 your commitment to your education wavered as clinical psychologist Mr Coffey described in his report of August 2016.
At school you were suffering a degree of social anxiety and that remained into 2014. You ate erratically and began to lose significant weight. You said you were depressed and your academic performance diminished. At that stage you were smoking cannabis and feeling isolated. In July of that year you claim that you found a video of a Muslim man speaking about his religion and recovery from drugs and that profoundly affected you. You became very committed to your religion and for a time the results were positive.
However, you did spend a lot of time on the internet seeking the teachings of Muslim scholars and came to think more about the events then occurring in Syria and the suffering being inflicted on Sunni Muslims. By the end of 2014, you were watching films of atrocities being committed against Sunnis and their plight caused you to deprive yourself with increased vigour.
By December 2014 you had begun to watch IS videos on the internet and over the summer of 2014-15 you became completely absorbed in both your religion and the need you felt to act in relation to the events in Syria. In your evidence, you said that at that stage you regarded IS as defending Muslims from oppression globally and you considered them the saviours.
As I have already said, you decided you wanted to go to Syria but not having a passport and needing your parent’s unlikely approval to obtain one resulting in you deciding an alternative strategy to highlight the suffering of Sunni Muslims in that country had to be found. That led you ultimately to your contact with IS, JH and your offending culminating in your arrest.
At the start of 2015, you were going in to year 12. Notwithstanding that though, you wished to maintain the beard you had grown as part of your religious commitment. The school did not permit this with the result that you left that school. You continued your education for a time at a TAFE college but did not persist with it and ceased attending about 3 weeks before your arrest.
Significantly, you have no prior criminal record and apart from an occasional use of cannabis you do not use any other drugs and do not consume alcohol.
Mental state
Amongst the evidentiary material presented on your plea was a report from the Clinical Psychologist, Guy Coffey. He provided a report dated 28 August 2016. He also gave evidence. Mr Coffey made the important point in his evidence that in your case we are not concerned with a mental illness that has an identifiable cause and a treatment. In your case what is of concern is your adherence to ideas. As Mr Coffey said, that is a much more fickle and difficult thing to estimate.
In his lengthy report Mr Coffey expressed the view that the risk of general criminal conduct with you is low. The only substantial risk of you re-offending is associated with violence inspired by religious belief or a perversion of religious belief. Importantly Mr Coffey did not identify strong emotion associated with remorse for what you have done, and for whatever it was worth, he could not discount a reversion to your previous position, though I regard his position as being that such a thing is less likely the more progress you make.
The changes since arrest
After your arrest on Friday 8 May 2015, you went into youth custody and have remained there since. That has involved you attending school and participating in sport. Evidence was given by SR, who is the campus principal. She had also prepared a report dated 30 August 2016. She was a very impressive witness.
She said that in her view the time you have had at your new college was, as she described it, ‘transformative’. She has seen a change in you and your attitude, particularly to her. That has occurred because since your time at your new college you have been exposed to a more diverse selection of people than you otherwise would have been. Importantly, she described your empathy for people who are not Muslim.
Your family have visited you on virtually a daily basis and have been very supportive of you throughout with the promise that the support will continue. I received written references including from your father and your sister. Your sister also gave evidence about the change and improvement in her relationship with you in more recent times. Her evidence is part of the material that shows your attitude to females has changed and improved. Your family are very supportive of you and that is obviously a valuable resource for you in the future. I urge you not to breach the trust they continue to place in you.
Plea of guilty
I accept your counsel’s submission that your plea of guilty was early and was a genuine one, intended by you as a means to take responsibility for what you did to a degree though tempered by the view you expressed that your arrest was a sign from God which stopped you from hurting people as you had planned. As Mr Coffey put it, that rationale shielded you from the full potential consequences of what you were planning to do. I am also slightly less confident about the element of remorse because I am not sure you have fully come to grips with the direction you were heading in.
However, it is unusual for an accused person to plead guilty and then give evidence and, in this case, you have found yourself being cross-examined by the Commonwealth Director of Public Prosecutions. In addition, your plea has furthered the interests of justice and avoided the need for a trial and a sentencing court must take into account the objective utilitarian benefit of a plea of guilty. Your willingness to follow that course vindicates the course of justice, saves the community the expense of a trial and releases witnesses from the ordeal of a trial. These considerations provide the primary basis for the discount for a plea of guilty.[5] It is important that the utilitarian benefit be adequately reflected and it will be.
[5]DPP v Thomas [2016] VSCA 237.
Remorse and ‘De-radicalisation’
An important part of the submissions made on your behalf depended on evidence which, so it was argued, support the conclusion that your state of mind and your attitude to radical Islamic hostility is now quite different from what it was in the first half of 2015. It was also urged upon me by your counsel that you are remorseful for what you have done.
As part of the evidence on that topic, RE gave evidence during the course of the plea on your behalf. RE is from the Islamic Council. On 26 August 2016 he prepared a report about you on the Islamic Council letterhead. He has been involved in the Muslim community for a long time and although not professional in his dealings with situation like yours he is experienced. He began his contact with you in August 2015.
He described you as defensive at first but in summary he felt you lacked a mentor and good guidance. He says you have now developed views that are resistant to violence and extremism. His report has a theme of optimism about your future.
In his evidence he described his own background with young Muslims between 1990 up to 2005 and then with the Islamic Council. As in his report, his evidence about your present state of mind was very positive and he wants to continue the relationship with you and provide further assistance.
It was also argued on your behalf that the evidence supports the conclusion that you are remorseful. That involves a sense of guilt and an acknowledgement that what you did was wrong.
RE said you had expressed remorse and he described his understanding of your attitude to your future. However, I am not convinced that the regret you feel for your circumstances and the effect they have had on your family is actually remorse. Your attitude may be headed in that direction but I am not sure you yet have a deep regret for a wrong committed by you.
You said in your evidence that you were looking for a sign from God about your proposed actions and you interpreted your arrest as a sign from God that he did not approve of what you were proposing. As I have already said, I suspect that is a means by which you are trying to avoid some, though not by any means all, of your responsibility for the fact that had you not been arrested you would have killed and injured a number of innocent people.
As Mr Coffey put it in his evidence remorse or contrition is a ‘work in progress’. There has been no sign on your part of distress at what you might have done.
You have said, supported by RE, that you wish to work with others who might be tempted to tread the path you trod and seek to persuade them not to. If that occurred and was effective it would valuable.
Considering all the material, I do regard your prospects for rehabilitation as being good but that is not said without qualification. I am persuaded by RE that you have seen the error of IS’s type of radical jihad. I do accept that you now see that is not the way to deal with the very serious issues you had been concerned about. I would add that in his opinion there is more work to be done on your views in this area.
Pre-Sentence Report
At the request of your counsel, I have obtained what is effectively a pre-sentence report. On 20 October 2016 two officers of the Department of Health and Human Services compiled a report on you that had been requested as a result of the plea hearing.
Apart from recording a shifting and moderation in your religious beliefs and corroborating that you have good support from your family while you have been in the Youth Justice Centre, the report was otherwise of limited assistance. It recorded and re-recorded the facts that are now well known.
The authors of the report did indicate that they raised with you the question of victim empathy. You apparently maintained that no victim was ever identified and that only general targets were ever discussed with JH. That is a less than insightful view on your part if it accurately records your view. In the course of being cross-examined, you gave evidence that JH was urging you to detonate the device or devices that you were making in the central business district, on a train or at a police station. You also said[6]:
Well, can you answer it when I ask you what would have happened do you say if the bomb that you were making was completed and was let off?‑‑‑People would have died.
[6]Transcript p 137.
In addition to these reports, I have been recently provided with two documents, including an affidavit from you, which demonstrate that when a riot occurred at the Youth Justice Centre at which you were held, you did not participate and behaved appropriately. That stands to your credit.
Conclusion
In sentencing you I am required to take into account the nature and circumstances of the offence and I have endeavoured to summarise that in these reasons for sentence. I must also examine the degree to which you have shown contrition for this offence. As I have indicated that is something that remains incomplete for the reasons expressed by Mr Coffey and also because in my opinion you have not yet come to grips with the consequences of what you were preparing to do.
Of course your plea of guilty to this charge and your willingness to give evidence stands to your credit. It would also appear that you have co‑operated with law enforcement agencies in the investigation of your conduct though, as you acknowledge, there were shortcomings in that co-operation initially.
In addition I must consider a sentence that will have a deterrent effect both on you and others. I have considered your character, your age and your lack of any criminal record. With some caution, if you continue on your present path I would regard your prospects of rehabilitation as good. You are well supported by your family and the sentence I impose on you will, of course, have an effect on them as well.
In his submissions Mr Richter particularly relied on your plea of guilty and the fact that you gave evidence as signs of remorse, acceptance of responsibility and rehabilitation. He placed particular weight on the support you have from your family. Appropriately he also placed significant emphasis on your youth, and I agree that is a factor that is significantly relevant for sentencing purposes. You committed this crime when you were 17. However, of course, there are cases where the need for deterrence, denunciation and the expression of the community’s moral outrage may outweigh considerations of youth and rehabilitation. To a degree that is true in your case.
I am however impressed with the change that has begun to occur in you. As I have already said, I was very impressed with your campus principal and I accept her evidence about the transformation she has seen in you.
I also admire the efforts of RE. His heart and his efforts are clearly in the right direction. Your apparent rehabilitation and rejection of extreme jihadi ideas about the infliction of violence on innocent citizens and the significant personal support you have from your family and wider Muslim circle persuades me that the sentence I should impose can be significantly less than might otherwise be appropriate. The need for specific deterrence has been reduced to a significant degree and your prospects of rehabilitation are good. It is by this more gradual but more effective process that the risk of terrorism will be reduced.
However, that is not all there is to consider. Your activities were elaborate and as carefully planned as you could make them. The attraction of these explosive devices is that they could be constructed from ordinarily available materials without creating suspicion and the purchase of those materials would be staged for the same reason. The terrorist act or acts for which your preparation was being undertaken meant that at the urging of JH and from the IS propaganda, you were contemplating an outcome that would cause serious injury or death. The explosion of these devices, depending on where that occurred, was likely to endanger or end the lives of members of the community and cause serious injury.
I am required to impose a sentence on you that is of a severity appropriate in all the circumstances of the offence and bearing in mind that the Federal Parliament has prescribed the maximum penalty as life imprisonment. The community is rightly concerned about the risk of terrorism and they are entitled to be protected. Members of the community would be very concerned about the consequences of your actions had you not been arrested. As I put to your counsel, and he accepted, I must sentence you on the basis that what you did until your arrest was done with the intention of igniting a device or devices and causing death and injury. This is a very serious case. You are a first time offender and a youthful offender. That makes this a particularly difficult sentence. The interests of your rehabilitation would normally be a primary consideration. In this case, that has resulted in some amelioration of the penalty. However, I would not conclude that as a result of the stage of development you have reached, you do not fully appreciate the seriousness and real consequences of what you did and what you were planning.[7]
[7]R v SJK & GAS {2002] VSCA 131
Having considered the evidence, the submissions on your behalf and from the Director of Public Prosecutions, in my opinion a sentence amounting to three years in a Youth Justice Centre would fail to recognise the objective seriousness of the offence you committed and also fail to give proper weight to the important factors of denunciation, punishment, general deterrence and protection of the community. Young people who might be inclined to pursue the course that you did must understand that despite their youth significant punishment awaits them if they do. I am satisfied that no sentence other than a significant term of imprisonment is appropriate.[8]
[8]Crimes Act 1914 (Cth) s 17A
On the charge that you did acts in preparation for, or planning, a terrorist act contrary to s 101.6 (1) of the Commonwealth Criminal Code, you will be sentenced to be imprisoned for a period of seven years. I direct, as I am required to do,[9] that you serve at least a minimum period of 75% of the head sentence. I fix that period as five years and three months before being eligible for release on parole. Having determined that seven years’ imprisonment is an appropriate head sentence, had I been permitted to do so, I would have fixed a minimum term of four years, which would have better enabled your supervision and rehabilitation given your youth.
[9]Crimes Act 1914 (Cth) s 19AG
I declare that a period of 579 days to be reckoned as pre-sentence detention and to be record as time already served by you under this sentence.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty and all of the matters associated with that plea, I would have sentenced you to a period of 11 years’ imprisonment which would have brought with it a statutory minimum period of eight years and three months before being eligible to apply for release on parole.
However, having determined that it is necessary to sentence you as I have, I do strongly recommend that pursuant to s 471 of the Children, Youth & Families Act 2005, the Adult Parole Board consider transferring you to a Youth Justice Centre so that you being held in an adult prison can be avoided altogether.[10]
[10]The Crown noted in its submissions that the option under s 471 remains available for those sentenced for federal offences even though the Adult Parole Board does not make parole decisions in relation to those individuals presumably on the basis that s 20C of the Crimes Act 1914 picks up this provision.
To the extent that it is possible, I strongly recommend the following:
(a) That you not be incarcerated with any other person serving a sentence for a similar offence where extreme and violent Islamic views are at the basis of the offending;
(b) That to the extent that it can be achieved, you should serve as much of the non-parole period of your sentence, or all of it, in a Youth Justice Centre as possible;
(c) That to continue your rehabilitation, any prison classification you undergo should take account of your need for family support.
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