R v Mohamed

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0068

S CR 2018 0069
S CR 2018 0070

THE QUEEN

AHMED MOHAMED,
ABDULLAH CHAARANI
HATIM MOUKHAIBER

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATES OF HEARING:	13 May, 14 and 26 June 2019
DATE OF SENTENCE:	24 July 2019
CASE MAY BE CITED AS:	R v Mohamed, Chaarani & Moukhaiber
MEDIUM NEUTRAL CITATION:	[2019] VSC 498 (Revised on 25 July 2019)

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CRIMINAL LAW – Sentence – Engaging in and attempting to engage in a terrorist act – Shia mosque destroyed by fire, after earlier unsuccessful attempt by two offenders – All three offenders Sunni Muslim adherents to ideology of Islamic State – Crimes carried out to advance ideology of Islamic State and to intimidate Shia Muslims – Strength of adherence to ideology – No acceptable evidence of de-radicalisation – Serious terrorist offences – Important sentencing purposes – Sentences of 22 years’ imprisonment with a non-parole period of 17 years for Mohamed and Chaarani – Sentence of 16 years with a non-parole period of 12 years for Moukhaiber.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N Robinson QC with Mr A Sim	Commonwealth Director of Public Prosecutions
For the Accused Mohamed	Mr J Kelly SC with Mr M Page	Leanne Warren and Associates
For the Accused Chaarani	Mr P Tehan QC with Mr L Richter	James Dowsley and Associates
For the Accused Moukhaiber	Ms F Gerry QC with Mr J Anderson	Stary Norton Halphen

HIS HONOUR:

Introduction

Ahmed Mohamed, Abdullah Chaarani and Hatim Moukhaiber, early in the morning of 11 December 2016, motivated by hatred, intolerance, malevolence, and misguided piety, the three of you went by cover of night into a place of religious worship in a suburb of Melbourne, intent on destroying it by fire. You comprehensively achieved your aim, deriving, so it seems, great satisfaction from the outcome. The crime you committed on that morning was motivated by a strong belief in extreme views which have no place in this or in any civilized society. Your particular purposes were to advance what to most sensible people can only be seen as being a perverse ideology, and more particularly, to strike a blow against, and to intimidate and cause terror to, Shia Muslims. Stated thus, your crime was a heinous one. However, there is more to it than that. What you did reflected an attack upon a fundamental value in our society, namely, religious freedom, an attack upon the conventions and beliefs that all Australians hold dear, and indeed, an attack upon this society itself, a society under whose protection and sharing whose benefits you have lived throughout your lives in Australia. Looked at rationally, your crime is very difficult to understand, and quite impossible to excuse.

You have all been found guilty by a jury of offences connected with terrorist attacks upon the Imam Ali Islamic Centre, (‘the mosque’), a Shia Islamic community prayer and religious centre located at 90 Lowson Street, Fawkner.

You, Mohamed and Chaarani, set fire to the mosque in the early hours of 25 November 2016, intent on destroying it (Charge 1).You failed in that attempt when the fire burnt out. In the early hours of 11 December 2016, all three of you succeeded in setting fire to the mosque, leading to its substantial destruction by fire (Charge 2). Because of the target and purposes of your offending, the crimes with which you were charged and of which you have been convicted are terrorist crimes of attempting to engage in a terrorist act (Charge 1) and engaging in a terrorist act (Charge 2) respectively.

The maximum penalty for both offences is life imprisonment pursuant to section 101.1(1) of the Criminal Code (Commonwealth)(‘the Code’).

Background to the crimes

The essential background to the involvement of each of you in these crimes was your support for the terrorist organisation Islamic State (‘IS’), and your adherence to the extreme and abhorrent ideology of that organisation. During the plea hearings conducted on behalf of each of you, some attention was devoted by your counsel to the duration and extent of your adherence to that ideology. I will have more to say about this later. Suffice to say for now that the fact of your having involved yourselves in the crime or crimes which you each committed, along with the evidence showing you to have been in possession of IS-related propaganda and the like, leaves me in no doubt whatsoever of the fact of, and the considerable strength of, your support for IS, and your adherence to the evil ideology of that organisation. I accept the submission of Mr Robinson QC, for the Crown that the fact of this terrorist act, involving the destruction of the mosque, having been carried out ‘is cogent, powerful evidence of the strength of the adherence to the ideology’.[1]
[1]Plea 161.

The prosecution case

The prosecution case made out against you, which was accepted by the jury, was a multi-faceted one. First of all, the Crown led evidence in explanation of the ideology of IS, a militant terrorist organisation based on an extreme version of Sunni Islam whose aim was to establish a caliphate to rule over all Muslims. The evidence demonstrated that from the time of the establishment of the caliphate in 2014, IS promoted anti-Western and sectarian violence, targeting those who did not agree with its interpretation of Islam. Shia Muslims, considered by supporters of IS to be apostates, came in for particular attention. On the Crown case, the crimes of the three of you, directed at a Shia mosque in the suburbs of Melbourne, were carried out due to your hatred of Shia Muslims, your desire to intimidate practitioners of that branch of the faith, and your desire to advance the cause of IS.

Next, the Crown relied on a body of evidence demonstrating the strong support of each of you for IS. That evidence comprised, inter alia:
i.numerous photographs, videos, documents, and other items, found on the mobile telephones of each of you and on the phones of others connected with you;
ii.the involvement by you in various WhatsApp group chats in a group involving each of you and other individuals;
iii.text messages sent and received by each of you;
iv.the presence of each of you in the motor vehicle of Chaarani on 22 December 2016 at a time when an IS propaganda video was played;
v.the attempts by you, Mohamed and Chaarani, to leave Australia in mid-2015 and the subsequent cancellation of your passports.
Then, the Crown pointed to a powerful body of other circumstantial evidence indicating the involvement of each of you in the crime or crimes of which you were eventually convicted. It is not necessary for me to detail that evidence here. Suffice to say, the prosecution case against each of you was compelling.

The crimes themselves

In terms of the extent of planning of the first crime, the prosecution pointed to a particular message at 2.10 pm on 24 November 2016 in which you, Mohamed, told Chaarani that you had a big surprise for him which he would love, and to make no plans for that night. On the prosecution case, the surprise was a plan you, Mohamed, had for the destruction of the mosque by fire. Within twelve hours of this message, the two of you, as the case revealed, and in circumstances on which I will shortly elaborate, attempted to destroy the mosque. On the prosecution case, this crime was the idea of you, Mohamed, and you recruited Chaarani. In spite of the submission by Mr Kelly SC on your behalf that the evidence was not sufficient to establish beyond reasonable doubt that fact, I am satisfied beyond reasonable doubt that that was so. In the circumstances, I can reach no conclusion as to how long before that conversation on 24 November 2016 it was that you came up with the idea to carry out that crime. Suffice to say, you revealed the plan to Chaarani on that afternoon at 2.10 pm, and the two of you set about acting on that plan.

A sequence of messages, calls and contacts over the course of the afternoon and evening of 24 November 2016 between you, Mohamed and Chaarani, and your wives and others, demonstrated that you spent the evening together from about 7 pm, until the early hours of the morning of 25 November 2016 when you attempted to burn down the mosque.

As mentioned already, the mosque was in Lowson Street, Fawker. Lowson Street is a predominantly residential street running east-west. The mosque was on the northern side of the street with residential properties abutting the northern boundary of the mosque property, playing fields to the east, and houses across the road to the south. The mosque was a large brick building which, as I understand it, had previously been an educational institution.

CCTV footage from the mosque indicated that two men, proved to be you, Mohamed and Chaarani, attended within the mosque property at about 1.30 am on 25 November 2016. Indications are that you must have driven to the area, then scaled the fence on the eastern border of the property. You, Mohamed, were the first to appear on the footage, walking along a corridor to the north of the foyer to the male prayer room. You entered the foyer carrying a hammer or other tool in your hand. You were wearing a long-sleeved hooded jumper with the hood over your head to conceal your face. After spending a short time in the foyer, you left the room and disappeared from view. You reappeared after a couple of minutes and were then in the company of Chaarani. You, Chaarani, were also wearing a hooded jumper, with the hood on your head to conceal your face. You were carrying a small drum or container in your right hand. I am satisfied that that container held some petrol or other accelerant.

The two of you then walked to the west, and then along the western wall of the building before turning along the southern wall. You proceeded to the entrance to the foyer of the female prayer room and gained access to the foyer through an insecure glass sliding door. You entered the mosque and through a series of insecure internal doors, gained access to the male prayer room.

Once inside the male prayer room, you took steps to disable a video camera which was affixed to a wall in the room. You removed a decorative flag from the wall and placed it on the floor, which was concrete and covered by overlapping large rugs. You spread accelerant on the flag and underlying rug, and then ignited the flag by some means. You spread accelerant on a further area of rug which was also ignited. You then departed the prayer room.

Four minutes after you had last been detected on the CCTV footage, you then were seen running along the western and then northern walls of the mosque back in the direction from which you had come. You ran between the northern wall of the foyer to the male prayer room and a smaller demountable building to the north. One of you used the tool mentioned earlier to smash two external glass windows of the foyer. You then escaped from the scene, presumably by climbing back over the fence separating the mosque from the playing fields.

It had been the intention of both of you in setting the fires on the floor of the male prayer room that the fires would take hold and that the mosque would be destroyed. As it happened, the fires self-extinguished, causing only very limited damage to the mosque.

The damage to the prayer room was noticed later that day by a member of the mosque. The event was reported to the Metropolitan Fire Brigade (‘MFB’) and Victoria Police. A forensic examination of the scene was carried out.

There was evidence indicating that you, Mohamed and Chaarani, met up later on 25 November 2016. You no doubt had become aware by then of the failure of your plan to destroy the mosque. A message from an unidentified male in the WhatsApp chat group, in which the male joked that he was going to burn down the HIYC[2] that night, would suggest that some others in the group must have been aware of your failed attempt.
[2]Hume Islamic Youth Centre, a mosque and sporting centre in Coolaroo.

At some time after the failed attempt by Mohamed and Chaarani to destroy the mosque, you, Moukhaiber, were recruited into the terrorist team. The evidence does not reveal how or when this occurred.

Evidence in the prosecution case revealed that all three of you were in very close contact in the days leading up to 11 December 2016, the day of the destruction of the mosque. Amongst other things, there was evidence that in those days, the three of you were working together on a building site in Melbourne. You frequently travelled to and from work together. There was ample opportunity for discussion and planning of the crime. I am satisfied beyond reasonable doubt that the three of you reached an agreement to carry out the crime together.

There was evidence in the prosecution case of contact between you of varying sorts on the evening of 10 December 2016. By this time, a plan to destroy the mosque by fire in the early hours of 11 December had been formulated. In that regard, the three of you, as a team of terrorists, had learnt some lessons from the failed attempt of Mohamed and Chaarani on 25 November 2016, and were not going to make the same mistakes again. By the time of the second attack upon the mosque, you had sourced a much larger container to carry a much greater quantity of accelerant to use in the fire. In addition, you had obtained two car tyres for use as a combustible material in the intended fire.

CCTV footage taken from the home of you, Chaarani, showed the three of you in the immediate lead-up to the crime. You set off together at 1.40 am, bound for the mosque. 12 minutes later, the car returned, and you, Chaarani, went into the backyard of the property to obtain an aerosol spray can of paint which was later to have an important use in marking the purpose of this crime, for the whole world to see. The three of you set off again in Chaarani’s vehicle in the direction of the mosque. You arrived there shortly before 2.28 am on 11 December 2016.

At the mosque, the three of you entered seemingly by the same route as that used by Mohamed and Chaarani on 25 November 2016. You, Chaarani, arrived first, perhaps reflecting the fact that the other two men were struggling over the side fence with the car tyres.

Using the spray can, you, Chaarani, wrote some graffiti on the external wall of the demountable building adjacent to the glass-windowed foyer of the male prayer room. You wrote two lines of large black Arabic text, one beneath the other. The uppermost line translated to ‘The State of Islam’, you having omitted the Arabic suffix which would have made the meaning, ‘The Islamic State’. The lower line translated to ‘Remaining’, part of the IS motto, ‘Remaining and Expanding’.

Having completed the graffiti, you walked towards the western side of the premises. A short time later, you, Mohamed and Moukhaiber, approached from the same direction as had Chaarani. You, Mohamed, were carrying a car tyre and a 20 litre plastic container apparently full of what was likely to be petrol. This container is highly likely to be the container found at your premises on 23 December 2016 which was tendered as Exhibit N. You attempted to gain entry to the male prayer room, without success. You, Moukhaiber, arrived shortly afterwards, carrying a car tyre.

You, Chaarani, walked to the western wall of the mosque, and using the aerosol can, painted two lines of text. The uppermost line, in Arabic, when translated into English, read, ‘The State of Islam’. The lower line, in English, read, ‘The Islamic State’.

Having spray-painted the graffiti on the western wall, you walked to the south, and then went towards the entrance to the foyer of the female prayer room on the southern side of the building. You were joined a short time later by Mohamed and Moukhaiber.

Indications are that having entered the foyer to the female prayer room through the same insecure sliding door used on the previous occasion by Mohamed and Chaarani, the three of you gained access to the female prayer room. Then, through a series of insecure internal doors, you proceeded to the male prayer room.

Once there you placed the two car tyres on the rugs on the floor of the room, near a large timber lectern. Petrol from the container was poured on the car tyres and surrounding floor and then set alight.

Less than three minutes after entering the building, the three of you ran from the direction of the female prayer room on the southern side of the building. You ran in a northerly direction along the western side of the building. You, Mohamed, were still carrying the 20 litre plastic container.

At about 2.31 am, as the three of you fled the centre, smoke could be seen in the CCTV footage captured on the outside of the mosque.

You all returned to Chaarani’s vehicle and drove away from the scene.

At about 2.42 am, nearby residents saw smoke and flames emanating from the mosque. Calls were made to 000. The MFB was called, and numerous appliances were dispatched to fight the very substantial fire which had erupted as a result of your efforts and had quickly engulfed the building. The risk of the fire spreading to nearby houses led to police door-knocking on the houses in neighbouring streets to warn of the danger.

As a result of the fire, the internal areas of the mosque sustained very severe and widespread damage. Demolition was required. An insurance assessment of the value of the loss put it at $1,590,352.30. The building was under-insured. The insurance company paid an accepted settlement of $843,666.36.

Your conduct after the fire

There was contact between the three of you later on the day of the fire. In a phone call between you, Mohamed and Chaarani, at 1.17 pm on 11 December 2016, you, Mohamed, asked Chaarani, ‘What happened? Did you go to Fawkner?’, to which you, Chaarani, replied that you had. You then said to Mohamed, ‘Heya, I wanna kiss your dick, bro’. You, Mohamed, asked, ‘What happened, brigade and that?’

The prosecution relied on this conversation as amounting to you, Chaarani, informing Mohamed that you had already visited the fire scene, and passing on your compliments to him for a job well done. I am satisfied that that is a correct interpretation of the call.

A combination of tracking data and other material established that within hours of the 1.17 pm phone call, you, Mohamed and Chaarani, along with your wives, visited the scene of your crime before going off to have a meal together. Your wives even shared photographs of the scene. Later in the day, all three of you travelled again to Lowson Street and drove repeatedly and slowly past the mosque. On the prosecution case, these repeated visits to the crime scene were signs of the three of you rejoicing in the success of the crime which you had jointly committed. I am satisfied that this is so.

The prosecution case also revealed many references to the fire in the WhatsApp chat sessions commencing on the afternoon of 11 December 2016. These messages included joking references to the fire being an inside job, and betrayed the obvious satisfaction and amusement you all derived from your crime.

There was a continuing pre-occupation of you and your wives with the crime in the ensuing days, indicative, I am satisfied, of your continuing satisfaction with what you had achieved.

On 14 December 2016, there was yet another visit by you, Mohamed, to the crime scene, this time in the company of two other men.

Arrests and police interviews

All three of you were apprehended by the police in the car of Mohamed on 22 December 2016. Mobile phones belonging to each of you were seized by the police, and found to contain material showing your support for IS.

You, Mohamed and Chaarani, were arrested in relation to another planned terrorist attack, and have been in custody since that time.[3] Search warrants were executed upon your homes, vehicles, and other connected locations. Some incriminating items were found, including a white, 20 litre plastic container consistent with being the container used to take accelerant to the mosque on the day of its destruction. This container was found clumsily hidden at your house, Mohamed.
[3]The crime with which you were charged involved preparations for a planned attack upon Federation Square or some other public location involving the use of weapons and explosives. The police operation was known as Kastelholm 1. I have not taken any of the events concerning those matters into account in sentence.

You, Mohamed, were interviewed by investigators on 22 and 23 December 2016. You claimed you had no view about IS, admitted having viewed videos of fighting in Syria and Iraq on your Twitter feed, but denied searching for any such videos online. You said that Muslims in Australia were treated ‘perfectly fine’. You provided ‘no comment’ answers to a number of questions, including questions asking if you had been involved in the crimes in question, although you did state that you were most likely at home at the time of the fires. When it was put to you that you were involved, you asked, ‘Is there any proof of that?’ In a further interview on 20 August 2017, you made no admissions of involvement in either crime. In respect of the destruction of the mosque, you said that whoever had carried out that act, it was pathetic and stupid. You indicated that you thought it could be an insurance job, that it was pointless, and that it caused a lot of harm to other Muslims. You said, ‘Luckily, there was no one there’. You denied ever having gone inside the mosque, and implicitly, denied involvement in the crime.

You, Chaarani, exercised your right to answer ‘no comment’ to questions asked of you in an interview about these matters.

The two of you, Mohamed and Chaarani, were charged in relation to Kastelholm 1 and held in custody for that crime.

You, Moukhaiber, having been allowed to go free by the police on 22 December 2016, continued to accumulate extremist material on your telephone in the ensuing months. On 19 August 2017, you were arrested by police. Another phone of yours was seized, and again, it was found to contain extremist material including an image depicting the quote, ‘The Rafidah[4] are a disease which cannot be cured except with the sword’.
[4]A derogatory reference to Shia Muslims.

You, Moukhaiber, were interviewed by police on 19 and 20 August 2017. You admitted your connection with the other two accused. You denied any connection with the destruction of the mosque, or any knowledge of the mosque. You denied any connection with or support of IS. You made some very derogatory statements about Shia Muslims, who you claimed were not Muslims at all, were ‘fucked in the head’, were ‘against everything we believe in’, and were ‘some cuckoo shit’.

All three of you were charged in respect of these matters on 20 August 2017.

Course of the trial

Lengthy pre-trial proceedings commenced before me on 30 January 2019 and occupied some eight weeks. Counsel for each of you sought the exclusion of various items of evidence. It would be fair to say that the prosecution case was further refined during that period.

A jury was empanelled on 1 April 2019 in this Court. All three of you pleaded not guilty in front of the jury. After the prosecution opening address had been completed, You, Mohamed, through your counsel in the defence response, denied involvement in either offence. You made it clear to the jury that the central issue in your trial was the identity of the offenders. You denied that you were one of them. You, Moukhaiber, through your counsel, also denied any involvement, making identity the main issue in your trial.

As for you, Chaarani, in a development which was entirely unexpected by the Court and the Crown, you took an entirely different tack. Mr Tehan QC, in his defence response on your behalf, told the jury that there was only one issue between you and the prosecution. It was whether or not your admitted involvement in the attempted destruction and then the successful destruction of the mosque were terrorist acts. He admitted on your behalf that you were present on both occasions, that you were the person who spray-painted the graffiti on the mosque on 11 December 2016, that your acts were done with the intention of advancing the cause of Sunni Islam, and that the acts were done with the intention of intimidating Shia Muslims. The element in dispute, as it was put by your counsel, was whether or not your actions were carried out as advocacy, protest, or dissent. On your behalf, it was acknowledged that your actions amounted to the serious criminal offences of attempted arson and arson, but it was asserted that they were not terrorist acts.

Late in the trial, Mr Tehan, in an application eventually joined in by counsel for the other two accused, sought to have the crimes of arson and attempted arson left as alternatives to the terrorism offences. For reasons which I announced briefly in Court but am yet to publish, I declined to do so.

In his closing address on your behalf, Mr Tehan reiterated that what was centrally in dispute in your case was first, whether the prosecution had proved that your actions were not protest, advocacy or dissent, and secondly, whether the prosecution had proved that you intended to endanger life or to create a serious risk to the health and safety of the public by your actions. He invited the jury to conclude that the prosecution had not established those elements of the crimes, and to return verdicts of not guilty on both charges you faced. In the course of his address, Mr Tehan described the arson and attempted arson which you had admittedly committed as awful, terrible, most serious, despicable, hate crimes, and serious examples of the crime of arson. In his submissions on the plea on your behalf, he stood by those descriptions.

For what it is worth, and without intending to convey any criticism of Mr Tehan in saying it, your defence, Chaarani, was optimistic verging on the entirely fanciful. For it to be asserted on your behalf that your admitted conduct could have been no more than advocacy, protest or dissent was wholly unrealistic. You were party to the intentional destruction by fire of a large building in a suburban area which had the status of a place of worship. In my view, no sensible person would countenance the idea that your conduct could possibly fit within the meaning of the words, ‘advocacy, protest or dissent’. It is hardly surprising your defence, which the circumstances indicate must have been decided upon by you very close to the time it was advanced on your behalf by Mr Tehan, was rejected by the jury. Having made those statements, I make it clear, as will the sentence I impose upon you, that I have not considered the running of this unworthy defence a matter to your detriment where sentence is concerned.

The jury returned verdicts of guilty against each of you on 9 May 2019.

The nature and circumstances of the offences; s 16A(2)(a) Crimes Act 1914 (Cth)

One of the matters I am required to take into account in arriving at an appropriate sentence for you all is the nature and circumstances of the offence or offences of which you have been found guilty. Each of your counsel and the prosecutor addressed me on these matters. I will deal with their submissions in turn on the question of the nature and seriousness of the offence or offences.

Mr Kelly

Mr Kelly SC for you, Mohamed, submitted that the attempt appeared to be spontaneous or at least, dreamt up only hours before its commission. The crime, he submitted, was ill-prepared, amateurish, unsophisticated and ineffective. I took him to be making some aspects of this submission in relation to both offences. The materials for the crimes were readily available and readily sourced. The absence of lengthy or elaborate planning distinguished these crimes from many other terrorist crimes. The crimes were committed in the early hours of the morning when no one was at the mosque. The aim of the crimes was to damage property only. That did not mean the crimes were not serious, but they were much lesser crimes than crimes intended to cause death or serious injury, or crimes where it was intended for a fire to spread to adjoining buildings. The ‘ambition’ of the plan in each case was relevant to an assessment of the objective seriousness of your crimes. The ambition here was ‘relatively modest’. The crimes were in a different category of offending from those crimes commonly brought before the Court where the intention was to cause loss of life. Furthermore, it was submitted that these crimes were very different from the crime contemplated, for example, in the case of Director of Public Prosecutions v Besim,[5] where the plan was to behead a serving police officer on Anzac Day in a manner likely to send shockwaves throughout the general population. In this case, it could not be argued that the same reverberations would necessarily flow from the targeting of a place of worship used by a discrete minority.
[5][2017] VSCA 158.

In respect of the depth and extent of the radicalisation of you, Mohamed, one of the factors considered in the case of R v Kahar(‘Kahar’)[6], your counsel acknowledged that the material on your phone showed you ‘exhibited an attraction to aspects of the IS ideology’. The writing of the pro-IS graffiti on the building on the occasion of the completed offence would provide support for the fact that the offending was done ‘in thrall’ to the IS ideology. He submitted it was difficult to ‘calibrate’ the extent of your radicalisation.
[6][2016] 1 WLR 3156 (‘Kahar’).

Mr Kelly sought to dissuade me from a finding that you, Mohamed, had recruited Chaarani into the attempt.

Returning to the gravity of the offending, Mr Kelly conceded that both episodes were committed in company, with some pre-planning, and at night time. The risk of harm or loss of life, however, was mitigated. The object was property damage only, he repeated, a significant point of departure from other crimes. Furthermore, even the completed offence was a much lesser crime than that intended in Lodhi v The Queen[7], a case which involved intended property damage.
[7][2006] NSWCCA 121.

The means of combustion and entry, on the submission of Mr Kelly, were unsophisticated in each case.

Mr Kelly submitted that only about two weeks elapsed between the attempt and the completed offence. This warranted substantial concurrency between the two offences, although he accepted that a degree of cumulation was required.

Mr Tehan

Mr Tehan admitted on your behalf, Chaarani, that the spray can used for the graffiti came from your home and that the tyres came from your wife’s parents’ place. That, he submitted, was in keeping with a crime which was not very highly planned or sophisticated.

He described your ‘crime’, by which I took him to mean ‘both crimes’, as despicable, and all the more so because of the twin motivations for them.

Mr Tehan submitted that I should not see your crimes as being ‘high-end terrorist offence[s] calling for the imposition of anything like the maximum penalty or anything approaching the maximum penalty’.[8] He said that that was not to deny for one moment the seriousness of the offences. He categorised them as low to mid-range. There was no intent to hurt people. He relied on the submissions on this point made by Mr Kelly.
[8]Plea 70.

Mr Tehan conceded that there could be no distinction in the seriousness of offences dependent on whether the target was a Muslim mosque or Catholic or Anglican cathedral, but he did emphasise that this was an attack in a large suburban block surrounded by playing fields at 3 am, with no intention to kill or injure. It placed the crimes in a different category from a range of other terrorist offences. The ambition of the crimes was modest compared with many other cases.

In his submissions to me, Mr Tehan stood by all of the descriptions he had given of the offending in his closing address.

Ms Gerry

Ms Gerry QC for you, Moukhaiber, emphasised that the objective seriousness of your crime was not as high as would be that for offences where loss of life was caused or intended. She also distinguished the seriousness of this crime from one, for example, which would have involved the destruction of a building such as Notre Dame Cathedral.

Ms Gerry asserted that there was a degree of ‘Parliamentary steer’ in the provisions which countenanced a defence of protest, advocacy or dissent for a terrorist act not involving death or serious injury.

Ms Gerry submitted that there was no evidence that the fire actually did endanger the life of any person.

Counsel submitted that you had only played a limited role in the offending. Evidence of any planning by you was particularly limited. You were, as she described it, ‘an almost last minute recruit’,[9] involved essentially for only a day or so. Whether your involvement was for a few days or at the last minute, it was the shortest possible time that you could be involved for an offence such as this. She described you as ‘a last minute recruit after a stressful day’.[10] I should indicate that no material was ever forthcoming backing up this contention that you had a stressful day on 10 December 2016.
[9]Plea 91.
[10]Plea 92.

Ms Gerry took issue with a contention that the fact that you could be seen carrying one of the two tyres to the scene of the crime was indicative of you being an enthusiastic participant in the crime. She invited me to look at the entirety of the material as indicating that you had only a limited role compared with the other two offenders. It was not your jerry can, it was not your tyre, it was not your paint, and you did not spray the graffiti. You were a follower rather than a leader. As Ms Gerry put it, ‘in terms of the setup or the planning or the arrangements,…there is much lower criminality’.[11]
[11]Plea 97.

Crown

Mr Robinson QC for the Crown, in his written and oral submissions, emphasised the seriousness of the offending of all of you.

He began by noting that the penalty of life imprisonment applicable to both crimes, which applies to only two other kinds of terrorism offences, reflects the seriousness with which Parliament views the offences of engaging or attempting to engage in a terrorist act.

The attacks upon the mosque were acts of violence inspired by the ideology of IS carried out to intimidate Shia Muslims. Mr Robinson described them as being serious examples of the offences of engaging or attempting to engage in a terrorist act. The offences involved attempting to or succeeding in setting fire to a place of religious worship in a populated suburban area of Melbourne, intending to destroy it. As such, the offences represented an attack on a fundamental value of Australian society, and also represented a grave risk to the population of that area. The crimes were carried out in the early hours of the morning, when the risk of the fires being undetected and spreading from the mosque was greater than in daylight hours. Both crimes were carried out by joint commission of two or more offenders.

As Mr Robinson put it, there was a significant degree of planning and preparation undertaken by all of you, demonstrating a level of sophistication designed to result in the successful execution of the attacks. He submitted that the fact of the failed attempt, and the return with a much greater volume of petrol and two tyres as well as the Dy-Mark spray can, were features which demonstrated that the completed offence was a determined, considered and planned act. As to the claim made by counsel that the planning was limited and lacked sophistication, Mr Robinson made the point that in this case, the plan was actually carried out, and in the case of Charge 2, was ‘efficacious’.

Mr Robinson readily conceded that the crimes here were not of the same order as terrorist crimes committed with an intention to kill.

The prosecutor took issue with the contention by Mr Kelly, at least, that these crimes were somehow less serious because they were aimed at a small section of the community, namely Shias. It cannot be the case, he submitted, that a terrorist act against a small group is a less serious offence than one against the broader community. The law is there to protect all. As he put it, ‘an affront upon our society by attacking a group of believers is an affront upon us all’.[12] That was not to say that an attack upon an icon of the society may not be worse than an attack upon a building which is not an icon.
[12]Plea 160.

As to any submission that this crime was not secret like some terrorist acts, it is true the matter became a public event because the mosque burnt down, but the offences were difficult to detect before they were carried out.

Analysis of nature and circumstances of offence

The offences of which you have been found guilty are ones in respect of which the legislature has considered it proper to set a maximum penalty of life imprisonment, the strongest punishment possible in our system of justice. As was stated by the Court of Appeal in Director of Public Prosecutions (Cth) v MHK (‘MHK’):[13]

The seriousness of the offence, to which the respondent pleaded guilty, is reflected by the maximum sentence of life imprisonment prescribed by the Criminal Code. Terrorist acts, of the kind planned and prepared by the respondent, are calculated to, and do, cause widespread carnage and suffering amongst civilian populations. Their objective is to strike at the heart of our liberal, democratic and tolerant society. Such actions, and the conduct indulged in by the respondent, are driven by a depraved and evil ideology and mentality, which are anathema to the fundamental values of our nation.[14]

[13][2017] VSCA 157 (‘MHK’).

[14]Ibid [61].

There is no question, as has been submitted, that the offence of engaging in a terrorist act covers, potentially, a great array of potential offending, from crimes of mass murder at one end, to much lesser crimes of property damage at the other.

As mentioned already, Ms Gerry submitted that there was a degree of ‘Parliamentary steer’ in the provisions which countenance a defence of protest, advocacy or dissent for terrorist acts not involving death or serious injury. If by this submission, Ms Gerry was implying that the legislature was indicating that penalties for terrorist crimes involving property damage should always necessarily be lower than those involving an intention to cause death or serious injury, that cannot be so. The maximum penalty of life imprisonment applies to all instances of engaging in a terrorist act. What is important, of course, is to look at all the circumstances of an individual crime.

As I made clear during the plea, I had no hesitation in accepting that the particular crimes of which you have been convicted are much less serious than terrorist crimes involving the planned or achieved causation of death or serious injury. However, that is not to say that the crimes of which you have been found guilty by the jury are not serious examples of the crimes of engaging and attempting to engage in a terrorist act. They clearly are.

Motivated by hatred and intolerance, you, Mohamed and Chaarani, set about seeking to further and advance the most unworthy cause of the terrorist organisation, IS, and to inflict terror upon entirely innocent people, who had in no way harmed you or earned your contempt. To use the words of the Court of Appeal in MHK, your conduct was driven by a depraved and evil ideology and mentality.

Not a great deal of planning went into the first crime, but a sufficient extent for you both to believe you would be able to achieve your aim. It seems that you, Mohamed, came up with the plan, but you, Chaarani, were clearly a willing participant. When you carried out the crime, you did so as a team, and the fact that the genesis of the plan was in your mind, Mohamed, is not itself a reason to distinguish between the two of you in sentence. In every respect, the two of you were equal and fully committed participants in the crimes.

Insofar as it was asserted by Mr Kelly that the first crime was spontaneous or dreamed up only hours before its commission, that ignores the fact that the crime was the product of the quite long-standing extremist views you both undoubtedly harboured. Mr Kelly described this first crime as ill-prepared, amateurish, unsophisticated and ineffective. That may be so, but the crime was the result of a decision you both made, as mature adults, to finally act upon the views to which I have referred, and the hatred towards Shia Muslims which went hand-in-glove with those views.

Mr Kelly described the ‘ambition’ of the crime as being ‘relatively modest’, a description, in effect, repeated by Mr Tehan. If the comparison with the ambition of a crime where death and mayhem is the plan is what is referred to, then ‘relatively modest’ may be an apt term. However in every other sense, an intention or ambition to destroy, by fire, a place of worship, for the reasons which you harboured, was far from modest.

The failed attempt by the two of you to burn down the mosque was itself a serious crime.

Having failed in that attempt, and no doubt having had more time to contemplate your actions and potentially turn your back on them, you re-doubled your efforts. You were not going to fall short again. You recruited Moukhaiber at some time likely to be in the days leading up to 11 December 2016. As the day of the crime approached, the three of you readied yourselves to strike what you obviously saw as a blow in support of IS. The equipment required to achieve the goal was acquired. That the equipment was rudimentary and the method simple takes nothing away from the seriousness of the crime.

In your case, Moukhaiber, Ms Gerry submitted that you had only played a limited role in the offending. She described you as ‘a last minute recruit after a stressful day’. She described you as a follower rather than a leader. She put it that, ‘in terms of the setup or the planning or the arrangements…there is much lower criminality’.

Those submissions do not sit at all comfortably with the reality of your involvement in this crime. It is true that you were not involved in the attempt, and that you were brought into the picture when a plan was already on foot. Your involvement, then, in the planning, was for a shorter duration than that of the other accused. However, you were drawn into a plan the desired outcome of which fitted in well with the extreme thoughts you had harboured for some considerable time. You were a 28 year old man at the time of your involvement. You were happily married. In every respect, you were a mature adult. There is nothing to suggest that you were cajoled or pressured into becoming involved. Yours was not some spur of the moment decision made at a time of weakness. It was a free decision you made, in full knowledge of the seriousness of what was contemplated. You became part of the team. Once you did, there is nothing to suggest you were anything other than a fully committed and enthusiastic member of the team. The fact that you were not the owner of the tyres, or the paint, or the jerry can, says nothing at all about the level of your criminality. I do not accept that you played only a limited role in the offending. Nor do I accept that there was much lower criminality in your case. Those claims on your behalf by Ms Gerry simply do not fit in with the proven facts.

The sentence I pass on you, Moukhaiber, will reflect the fact that you were not involved in the first crime, and did come later to the team, and to a plan which was already well on foot. Beyond that, however, I believe all three of you were equal participants in the joint crime which you carried out on 11 December 2016.

In respect of the second crime, Mr Kelly contrasted the duration of planning of that crime with the level and duration of planning apparent in other crimes which have come before the courts. I do not think that is of any assistance to any of you. You devoted as much time to the planning of this crime as you believed was warranted. When you acted, you did so in the firm belief that you had put yourselves in the position to succeed where you, Mohamed and Chaarani, had earlier failed. And you were justified in that belief.

The relatively rudimentary methods you all used to set fire to the mosque were frighteningly effective, as the outcome showed. I am satisfied that it was not the intention of any of you that the fire you lit would spread beyond the confines of the mosque. The potential for that to occur, of course, was real. Numerous fire fighters, too, were put in harm’s way trying to control the huge fire you had caused.

As I mentioned earlier, Mr Kelly made the submission on your behalf, Mohamed, that the destruction of the mosque in this case was something which targeted a discrete minority, and that as a result, the same kind of reverberations would not flow from this crime as from one aimed at the community as a whole. It was submitted that the message from this crime would not, to the same extent, be sheeted home to the community as a whole, causing the community at large to feel a sense of danger or terror. For that reason, it was submitted, the crime was less serious. That was not a submission in which, as I perceived it, counsel for the other accused joined. The prosecutor took issue with it. As he put it, the law is there to protect all, and ‘an affront upon our society by attacking a group of believers is an affront upon us all’.

I agree with the prosecutor. Shia Muslims living peacefully in our community, whether a minority or not, are an integral part of that community. An attack upon them was an attack upon the community. It was an attack which would cause a great sense of discomfort to all fair minded members of our community.

All things considered, the terrorist crime carried out by the three of you which led to the destruction of the mosque was an exceedingly serious offence, involving a very high degree of moral culpability, and deserving of condign punishment.

Extent of radicalisation

One of the matters referred to by the English Court of Appeal in Kahar[15] as being of assistance in considering the nature and gravity of terrorist offences is:

The depth and extent of the radicalisation of the offender as demonstrated (inter alia) by the possession of extremist material and/or the communication of such views to others.[16]

[15]Kahar (n 6).

[16]Ibid [19].

A good deal of time during the plea hearing was devoted to a consideration of that issue in respect of each of you.

On your behalf, Mohamed, Mr Kelly submitted that the depth and extent of your radicalisation ‘is difficult to calibrate from the materials adduced in the trial’.[17] He did acknowledge that it was ‘difficult to get away’ from the fact that certain things, including the photographs taken of you draped in the Shahada flag in mid-2015, were found on your phone. He submitted there was a basis for concluding that whatever views you held about Shias appeared to develop from 2014. Those views may have been influenced by your exposure to materials in WhatsApp and elsewhere, and may have operated as a driver for your participation in the crimes. He submitted, however, that that would not permit the Court to be able to articulate the extent of your radicalisation beyond saying that it could have operated as a motivator for your participation in the crimes.
[17]Plea 41.

On your behalf, Chaarani, Mr Tehan did not specifically address me on the depth and extent of your radicalisation. He submitted that you did see a lot of what was happening in the Middle East in the years from 2014 through to 2016 and reached a point where you felt you needed to do something about it.

On your behalf, Moukhaiber, Ms Gerry acknowledged that there was extremist material found on both your 2016 and your 2017 telephones. She submitted, however, that there was not a ‘vast quantity’ of material.[18] She also submitted that there was ‘limited involvement in the ideology’. On the second day of the plea hearing, Ms Gerry submitted that there was no evidence of any pledge by you to ISIS or other extremist organisations. There was no flag waving, or attempts to travel abroad. She submitted, further, that ‘there is no evidence that he had willingly and fully embraced any extreme ideology’.[19] Indeed, she submitted of you that, ‘He does not consider himself to be radicalised’.[20]
[18]Plea 101.
[19]Plea 114.
[20]Plea 119.

Later on, Ms Gerry submitted that the level of radicalisation in your case could not be said to be extreme, because of the short period of time you were involved in planning for the offending, the fact that the offence was not aimed at the sort of public place represented by Notre Dame Cathedral, the fact that the crime was not aimed at people, and the fact that in the nine months after the crime, you did not commit any further terrorist crimes.

In respect of the question of the depth and extent of the radicalisation of each of you, Mr Robinson submitted:

The fact that the terrorist act was carried out is cogent, powerful evidence of the strength of the adherence to the ideology. There can be obvious arguments about whether or not someone adheres to an ideology when they’re said to be planning acts. But when the act is actually carried out, it’s manifest that by the nature of the crime and the verdict of the jury, that is intended to advance the ideology.[21]

[21]Plea 161.

I accept the submissions of the prosecutor. In the case of each of you, you were in possession of extremist material to a greater or lesser extent, over a longer or shorter period of time, but the undeniable fact is that your involvement in the offences before the Court is clear and cogent evidence of the fact that you were strongly radicalised at the time of your offences. Were you not, these outrageous crimes would never have been committed.

In respect of the submission of Ms Gerry relying on the fact that you did not carry out any further terrorist crime in the period after the arrest of your two co-offenders as being an indicator of the relatively low level of your radicalisation, I do not accept it. It cannot realistically be said that your failure to commit a further crime during that period throws any light on the depth of your feelings at the time of the crime of which you have been convicted. You knew the authorities had arrested your two friends, and that they would likely be monitoring you. In spite of this, you continued to accumulate extremist material, and did nothing to distance yourself from the thinking which had motivated your crime.

Evidence of de-radicalisation?

You, Mohamed and Chaarani, have been in custody since 22 December 2016. You, Moukhaiber, have been in custody since 19 August 2017. You were all charged with the crimes of which you now stand convicted on 20 August 2017. Before you stood trial, you had a long time to think about your position and your beliefs.

You were found guilty by the jury on 9 May 2019.

Shortly after your conviction, the prosecution filed a document entitled ‘Crown’s submissions on sentence’. In the document, under a heading, ‘Motivation and radicalisation’, the prosecution submitted ‘that there is no material which suggests that any accused has resiled from the ideology each held at the time of offending’.[22]
[22]Crown written submission on sentence, [22].

The plea hearing in this matter proceeded on 13 May, 14 June and 26 June 2019, for reasons which will be apparent from a reading of the transcript.

On the first day of the plea hearing on 13 May 2019, Ms Gerry, on your behalf, Moukhaiber, sought an adjournment of the plea hearing to enable the preparation of an expert report touching on your risk of reoffending. During the course of the application, Ms Gerry, when asked by me whether there was any reason to think that you had gone anywhere in the direction of denouncing the radicalisation which you had experienced, or to suggest that you had taken any step to show that in spite of what you did, you were no longer a believer in the cause, answered in the negative. Her application for an adjournment was refused.

During the plea hearings which were conducted on behalf of each of you, Mohamed and Chaarani, on 13 May 2019, no material was placed before me which pointed to the prospect that either one of you had renounced your former beliefs and support for IS, or gone any way down the path to de-radicalisation. Mr Kelly and Mr Tehan both informed me that they were awaiting additional material which would be submitted later. I was not informed of the likely contents of such material.

During the plea hearing on your behalf on 14 June 2019, Moukhaiber, Ms Gerry made a submission that your risk of reoffending was low. I enquired whether she could point to anything to indicate you had gone any way at all down the path to de-radicalisation. She answered by directing my attention to the academic literature, to some aspects of the evidence of Dr Gully given on the trial, to some certificates and to other written material which had been tendered on the plea. To my mind, none of this material provided evidence of any movement or step towards de-radicalisation.

Ms Gerry further put it in terms of there being reason to be confident that you would engage in de-radicalisation programmes. She submitted you had done everything you possibly could on remand to demonstrate you were either not radicalised any more or capable of de-radicalisation.

On 14 June 2019, Mr Page on your behalf, Mohamed, and Ms Vinton on your behalf, Chaarani, informed me that there was further material still being prepared, and sought time to be able to provide it. I provided that time.

In the submissions that he made on sentence on 14 June 2019, Mr Robinson stated, ‘None of the accused are seeking to put evidence before the Court that they…no longer hold the views or seek to move away from them’.

The plea came on again for hearing on 26 June 2019 at the request of the defence. Mr Tehan on your behalf, Chaarani, tendered a number of documents as Exhibit AC1 on the plea. These documents included a three page letter from you addressed to me, a letter of apology from you to the Imam Ali Islamic Centre, and a very impressive letter from your wife Aisha Al-Qattan.

One of the documents was a letter from Altar Hussain, a Senior Prison Chaplain of the Muslim Faith, who indicated that he knew you and the accused Mohamed, that he had provided spiritual support to you both, and that two years ago when you both came into the prison, you indicated to him that you wanted to join the CISP[23] de-radicalisation programme. He informed you that you could not do so until you were a sentenced prisoner. Another document was a letter from a fellow inmate of the Shia faith who claimed to be your friend, and spoke positively of your conduct towards him.
[23]Court Integrated Services Program.

The letter from you addressed to me was dated 21 June 2019. In this very well-written letter, you expressed your sorrow, shame and disgust for what you described as your cowardly actions. You expressed a realisation of having gone down the wrong path as a result of having been brainwashed and misled. You condemned IS. You promised to rebuild yourself and your way of thinking from scratch. You expressed your remorse.

Your undated letter of apology to the mosque was equally well written. In it, you repeatedly apologised for your actions, brought about by your hatefulness, foolishness and ignorance. You expressed a desire to do everything in your power to make up for the pain and heartache you had caused.

The letter from your wife, dated 13 May 2019, spoke in glowing terms of you as a kind, supportive, and in every respect, wonderful husband to her. She also claimed that you now understand that your actions arose out of ignorance and immaturity, that you have had a lot of time to re-educate yourself, and that you have shown genuine remorse.

In his submissions to me on 26 June 2019, Mr Tehan indicated that you, Chaarani, are prepared to engage in de-radicalisation programmes within the prison. He also stated that you now see the crimes of which you have been convicted as heinous and wrong, and understand the suffering you have caused. He made mention of your having engaged positively with the Shia man in prison to whom I have referred. He also pointed to the remainder of the material as showing you to be a reasonably intelligent young man with good family support, which is at least a hopeful sign towards rehabilitation.

Mr Tehan also, clearly on instructions, said the following:

Now, there’s one further thing that we desire to say on his behalf, your Honour, and it is this, and we say this knowing that this place is, of course, a public forum and it is this, that he renounces before this court and to the public at large, the ideology of ISIS.[24]

[24]Plea 171.

Mr Tehan dwelt on the authorities touching on the matter, and acknowledged that in the absence of sworn evidence from you, which you did not propose to give, the sentiments expressed in your letter and the other documents pointing to your de-radicalisation would be accorded less weight than they otherwise would be. He submitted that it would be a matter for me how much weight I would give the material. In response to a question from the Court as to whether or not, in light of the authorities, the material should be accorded very little weight by me, Mr Tehan answered, ‘Can we urge your Honour not to find very little weight, but rather, to find limited weight?’[25]
[25]Plea 181.

On your behalf, Mohamed, Mr Page tendered a bundle of letters and other documents, and an outline of submissions relating to the new material, all as Exhibit AM1 on the plea. Amongst the material tendered was a letter from you which was originally provided to the Court in the lead-up to the further plea in affidavit form. The Crown objected to the tender of this affidavit unless it was supported by sworn evidence, and in the end, the document in letter form was amongst the items tendered and sought to be relied upon. This happened in circumstances where Mr Page made it clear that you had no intention of giving sworn evidence on the plea hearing.

In your letter to the Court, you described your path towards radicalisation, and in particular, how you came to see the ISIS literature and videos. You spoke of the unfortunate decision you had made which led you down ‘a dark path’. You said that your experiences in gaol had helped you to interact with people of many backgrounds and faiths, all of which had allowed you to see the error of your previous thinking. You said that you had come to reject the use of violence and hate as a means of solving problems. You said that you felt ashamed, and felt nothing but remorse, regret and shame for your interest in ‘such filth’. You described the façade that groups such as ISIS portray as a complete illusion. You thanked God that he had guided you and shown you your wrongs before it was too late. You said, ‘I utterly reject ISIS and their ideology, their followers and people of their ilk’. You described certain steps you claimed to have made to step back from the foolish position you previously occupied. You indicated that you had been found guilty of a shameful act, and that the burden would be with you forever.

A letter from your former wife, Balqisa Al-Sheik, was amongst the material tendered on your behalf. She spoke highly of your support for her, claimed your actions were the result of pressure and extreme brainwashing, and asserted that the three years you have spent in prison have brought about an enormous change in you for the better, and that you have rehabilitated yourself.

Some other material tendered on your behalf pointed to changes for the better insofar as your radicalisation is concerned.

In further submissions, Mr Page stated:

Mr Mohamed indicates, and he has instructed me, to make it clear in this public forum that he utterly rejects ISIS and their ideology, their followers and people of their ilk and he would like, if he’s given the chance, and he’s done this through counsel, to warn people publicly of such groups.

Mr Page on your behalf, when asked whether he would make the same concession as that made by Mr Tehan, that is, that I would be entitled to give the material in question limited weight, responded in the affirmative.

On your behalf, Moukhaiber, Ms Gerry indicated that you do not consider yourself to have been radicalised. A letter was tendered on your behalf from the Senior Prison Chaplain of the Muslim faith indicating that you made a request a year ago to be admitted into the CISP de-radicalisation course to which I earlier referred. Beyond that, no material was tendered on your behalf indicating you have proceeded anywhere along the path to de-radicalisation.

Mr Robinson for the Crown reminded me of what was said by the Court of Criminal Appeal in New South Wales in IM v The Queen.[26] That case, he submitted, represented a very recent statement of the position, consistent with a long line of authority,[27] that little weight should be accorded the sort of material filed on behalf of you, Mohamed and Chaarani, pointing to de-redicalisation. He submitted that counsel for all accused in this matter were well aware of the legal position. He further submitted that in light of the fact that you were both found guilty by a jury of the Kastelholm 1 matter in October last year and the fact that you were found guilty by the jury in this matter as long ago as 9 May 2019, the failure of your counsel on either the first or second occasion on which the plea hearing proceeded in this case to make any submission, based on instructions, pointing to the abandonment of the ideology, was:

powerfully cogent of the fact that this claim to abandon ideology made now, is no more than an attempt to advance themselves, following the submission I made that there was no evidence they’d abandoned.[28]

[26][2019] NSWCCA 107

[27]See, for example, R v Benbrika [2009] VSC 21 [149]-[151]; Benbrika v R (2010) VR 593 [586]; R v Qutami (2001) 127 A Crim R 369; R v Ghazzawy [2017] NSWSC 474 [35]-[40]; R v Khaja (No 5) [2018] NSWSC 238 [81].

[28]Plea 194.

Mr Robinson submitted that I should see the claim of abandonment made on behalf of each of you, Mohamed and Chaarani, as being ‘no more than opportunism’. He further submitted that each of you claimed to have given away the ideology in circumstances where you were still maintaining your innocence and had exhibited no remorse in respect of your proven offending. I should doubt the veracity of your claims, he submitted.

It was submitted by the prosecution that as a result of the applicable law and the circumstances in which the material pointing to supposed de-radicalisation had emerged at the last minute, in a way designed to ensure it could not be tested, I should give it ‘almost no weight’.

As for the enquiry that all three of you made as to the CISP scheme, the weight to be attributed to that was necessarily tied to the weight to be given to the other material pointing to de-radicalisation.

In respect of you, Moukhaiber, the Crown submitted that through your counsel, you have denied that you were radicalised. Therefore, even if there was the material indicating your enquiry about the CISP course, or any other material pointing to a movement towards, or the possibility of, de-radicalisation, it would be of little value. As he put it, the abandonment of an ideology requires a recognition of the ideology.

Conclusion on question of de-radicalisation

If any one of you wished to have the Court conclude that there was evidence that you had moved anywhere along the path to de-radicalisation, or were willing to do so, those would be matters which you would need to establish to my satisfaction on the balance of probabilities.

The authorities are clear that in the absence of sworn evidence from either of you, Mohamed and Chaarani, the material upon which you have relied pointing to a degree of de-radicalisation by both of you should be given very little weight.[29]
[29]See notes 20 and 21.

In addition to that, the circumstances in which the material eventually came before the Court would in any event have made me very hesitant to rely on it. You have been in custody on these and other terrorism matters for some years. You were convicted of one terrorism crime in late 2018. You were found guilty by the jury in the current case on 9 May 2019. No submission was made on your behalf pointing to any indication of de-radicalisation until the third occasion on which the plea proceeded. This is not explainable by the fact that there was any practical difficulty marshalling the material. I am left with the impression that the material tendered on your behalf, including your letters to the Court, is unconvincing, contrived and self-serving.

I believe the material should be given very little weight by me in the sentencing process. It is certainly not sufficient to discharge the onus you bear to establish that you have de-radicalised or at least moved down that path.

One matter is worthy of further mention in your cases, Mohamed and Chaarani. Each of you, through your counsel, in open court, renounced IS and your previous support for it. You have sought to rely on this fact, in line with the approach of Croucher J in The Queen v Cerantonio.[30]
[30][2019] VSC 284 [227].

Your public renunciation of IS may, at first blush, be seen as being entirely self-serving and unconvincing. On the other hand, it does represent a public statement by two followers of that criminal organisation that they now reject its ideology. Whether the renunciation is genuine or not, some good may flow from its having been made by you. I take that into account in your favour.

As for you, Moukhaiber, you do not even accept that you were radicalised. There is no evidence of de-radicalisation for me to assess. As to your prospects of de-radicalising, which Ms Gerry pointed to as being good, there is insufficient material on which I can form a sensible assessment of that.

Personal circumstances of each of you
Mohamed

You, Mohamed, are 26 years old now, having been aged 24 at the time of your crimes. You were born in Cairo, Egypt, to Sunni Muslim parents who had fled the forces of Saddam Hussein in Kuwait. Your mother was born in Palestine, and your father in Egypt. Your mother brought you to Australia in 1999 when you were seven years old. A number of other family members re-located to Sydney and Melbourne, but not your father. He was to follow your mother out here, but instead relocated to Dubai and set up a travel business there. He has now applied to emigrate to Australia.

You were educated in Melbourne at Moreland Primary School and then, during a period when the family lived in Sydney, at Liverpool Boys High School, where you competed Year 9.

You then lived with your father in Dubai for two years before returning here to commence Year 10, which you did not complete. Having left school, you worked for almost two years with a transport company delivering furniture. You also worked on Manus Island doing maintenance. Thereafter, you worked as a carpenter and bricklayer, which you were doing at the time of your arrest.

You were married for the first time at the age of 22 in 2014 to a Shia woman. There were no children of that union. The fact that your parents were supportive of that marriage is indicative of the fact that your parents harboured no ill-will towards Shia Muslims in spite of the historical schism. The relationship came to an end in 2015, and within a short time, you married Balqisa Sheikh, with whom you remained until your incarceration. You had a son, Youseff, born in mid-2017. After you went into custody, you and Ms Sheikh divorced, and she now has another partner who plays a role in the care of your son, although it is mainly your former mother-in-law who cares for your child. You have apparently been supportive of Balqisa’s new relationship.

Until you went into custody, you were instrumental in caring for your grandmother who is confined to a wheelchair and has many ailments.

Since your incarceration you have been visited by your mother and your son, amongst others. You are doing your best to maintain a relationship with your son.

In custody, you are now in Port Phillip Prison, in effect as a protection prisoner. You have been assigned as a guardian billet and a cleaning billet and have accrued a number of certificates which were tendered on the plea. My understanding is that most of your time in custody is taken up with reading the Qur’an and praying. You have also developed an interest in music.

You have a reasonably limited criminal history as contained in the Criminal Record filed in Court. The matters of affray and recklessly causing injury from the Broadmeadows Magistrates’ Court on 4 December 2015 arose from a fight involving a family member of your first wife. You were fined without conviction, pointing to the relatively modest nature of the offending. The only other matters were a conviction for driving whilst suspended for which you received a community correction order, which was running at the time of your crimes, and then the subsequent breach proceedings in relation to that. I do not believe your criminal history is of any real significance in sentencing you.

In respect of your path to radicalisation, Mr Kelly told me that, in circumstances where you were living in Melbourne away from your mother, and in which your father was largely absent from your life, and you were therefore without parental support, you were befriended by an older Lebanese man who was a strict adherent of Sunni Islam, hence embarking on the path towards radicalisation.

Some further written material recently provided to the Court touches on some aspects of the difficulties you have experienced and will experience in custody, and the very great dislocation, trauma and sadness caused to you and your family since your incarceration. In particular, the fact that your son was born after your incarceration and your realisation that you will not be present for his formative years are matters of great sadness to you.

Chaarani

You, Chaarani, are now 28 years old, being aged 26 at the time of the crimes. You were born in Melbourne to parents who had emigrated, separately, with their families from Lebanon in the mid-1970s. In Melbourne, your parents met and married, ultimately settling in the northern suburbs.

Your family was a strict but a stable and loving one. You grew up respecting but fearing your father, a strict disciplinarian, your mother being a much softer person. You have one older and two younger sisters.

You were educated at King Taylor Preparatory School for one year, before attending Darul Ulim Sharia Islamic School from Grade 1 to Year 9. This was a private Islamic school with a concentration on the teaching of Islamic and Arabic literature. It was strictly religious so from an early time, you came to understand the ways of your Islamic faith. You also learnt to read and write in Arabic. There is no suggestion that the form of Islam in which you were brought up at home and educated at school had any extremist leanings to it.

When you were aged 21 your parents commenced going through an acrimonious and drawn-out divorce process. After the separation of your parents you felt responsible for your mother and sisters and felt at somewhat of a loss without your father.

Upon leaving school, you worked in a computer shop, as an electrician, and then, in the years leading up to your arrest, as a painter.

You took up taekwondo, and became very proficient at that sport, being particularly dedicated to it during your teenage years. You competed at interstate level. You also developed an interest in fishing and some other outdoor pursuits.

You were introduced to your wife Aisha in 2016 by the wife of your first cousin Ibrahim Abbas. You married in 2016, only about six months before your offending. You were and are a devoted couple, who led a simple life.

You have a number of prior convictions contained in the Criminal Record filed against you. These are mainly for driving offences, with one matter of being a non-prohibited person in possession of a Category E handgun, which, as I was informed, was a toy pistol found in the boot of a vehicle you were driving. Your prior convictions are of no real significance.

In your twenties you attended various mosques in Melbourne. You remain adherent and devoted to your faith. As for your becoming radicalised, Mr Tehan indicated that you observed what was happening in the Middle East from 2014 onwards and that you reached the point where you felt you needed to do something about it.

Moukhaiber

You, Moukhaiber, were the oldest member of the team of three involved in the destruction of the mosque, being 28 at the time, and now 31 years old. As I have already indicated, Ms Gerry submitted that in spite of the fact that you were the oldest of the offenders, you had a lesser role, and were very much a follower rather than a leader.

You were born in Australia, have always lived here, and indeed, have never travelled further afield from Melbourne than Sydney, having never held a passport.

Ms Gerry described you as a dedicated family man, a description which is well in keeping with the glowing description of you contained in the letter your wife Teesha Wilson provided on your behalf. Ms Wilson said that in the time she had known you you had shown your ‘beautifully humble and respectful character’ through your everyday actions. She described the enormous assistance you provided after the birth of your daughter about two years ago, when she, Ms Wilson, was bedridden for a time after the birth.

You have apparently been the sole carer for your wheelchair-bound mother for about eight years.

Ms Gerry informed the Court of the distress you felt at the prospect of not being able to care for your wife, child and mother. You were conscious, in particular, of how difficult your incarceration would make the life of your daughter as she grows up.

Your parents divorced not very long before your offence. In addition, at the time of the offence, you were finding it difficult to obtain much employment, but you were working for your brother at the time.

You have a number of significant prior convictions contained in the Criminal Record filed against you. On my calculation, you have accrued convictions for 19 offences from 15 court appearances in the Magistrates’ and County Courts. The convictions were for a wide range of offending, including many offences of violence, an offence of being a prohibited person in possession of a firearm, and numerous breaches of community based orders, community correction orders, and suspended sentences. You have been imprisoned on multiple occasions for offences of violence, including receiving a sentence of two years with a minimum of one year in the County Court for an offence of recklessly causing serious injury in 2010 and offences of robbery and recklessly causing injury in 2008. Your offending spanned the years from 2008, when you were 20, until the time of your arrest.

In respect of your prior convictions, Ms Gerry, somewhat surprisingly, submitted that a consideration of those matters actually assists you on the plea. Whilst conceding the prior matters reveal that you are not of good character, she submitted that a number of them were quite old. She submitted that you have only limited prior convictions, with nothing terrorist or arson related. She further submitted that the priors could be explained by considering you to be a ‘wayward youth’, whose offending then ‘trespassed’ into your twenties. She submitted that I could take comfort from the fact that your offending was not ‘extreme Islamic conduct’. Your prior convictions, she submitted, indicated that you were not of an extreme ideology, because had you been, you would not have committed such offences, including drug offences.

I do not accept the submissions made on your behalf in respect of your Criminal Record. The prior convictions contained therein indicate that, while already an adult, and leading up until the time of your incarceration, you involved yourself in a variety of criminal offending, including multiple instances of violence. You also showed yourself to have a lack of regard for the authority of courts by your numerous breaches of sentencing dispositions. Far from advancing, in a positive way, your prospects of eventu-al rehabilitation, your prior convictions point in the other direction. At the time of your involvement in the terrorist crime of which you have been convicted, you had already accrued a worrying list of prior convictions which were indicative of your poor character, and raise concerns about your future prospects.

Cumulation between sentences on Charges 1 and 2

In the case of you, Mohamed and Chaarani, you have been found guilty of two offences, constituted by the initial attempt on 25 November 2016, and the successful destruction of the mosque little more than two weeks later.

As indicated already, Mr Kelly submitted on your behalf, Mohamed, that for reasons including the closeness in time of the offences, a substantial degree of concurrency was warranted. He accepted, however, that some cumulation was required. Mr Tehan, on your behalf, Chaarani, made no specific submission as to the issue of cumulation. The prosecutor submitted that the offences are separate and serious offences requiring some cumulation. He did not dispute that some concurrency would be appropriate.

I am required to pass separate sentences appropriate for each of the crimes of which you have been found guilty, and then, by means of ordering separate commencement dates for the sentences on the two separate crimes, to arrive at a total effective sentence appropriate for the totality of your offending.[31]
[31]Section 19(2) Crimes Act 1914 (Cth).

For the reasons already noted, the attempt of which you have been convicted was itself a serious crime. The completed offence occurred a little over two weeks later, and whilst building and improving upon the earlier crime, was a separate, distinct and even more serious one carried out with more detailed planning, and with the continuing appreciation you had as to the gravity of what you intended.

Bearing in mind the need for totality, a degree of concurrency is clearly necessary, but significant cumulation is also required to reflect the separate criminality involved in the two offences. I will pronounce commencement dates for the two offences on which each of you is sentenced to reflect this need.

The effect of the crime on its victims

Section 16A of the Crimes Act 1914 (Cth) requires me to take into account the personal circumstances of any victim of the offences,[32] any injury, loss or damage resulting from the offences,[33] and any victim impact statement from a victim.[34]
[32]Section 16A(2)(d).
[33]Section 16A(2)(e).
[34]Section 16A(2)(ea).

No victim impacts statements have been filed, and no material has been placed before me pointing to the effect of your crime on its victims. That is not to say, however, that the crime had no victims. Clearly it did. The members of the mosque would undoubtedly have been traumatised and frightened by what was done to their place of worship, which was of course one of your intentions. I take the effect of this crime upon its primary victims into account in sentencing. I also take into account the obvious fact that this was a crime against the broader community as well. The brazen destruction of a place of worship, no matter whether someone else’s place of worship or not, carried out for the evil reasons at the heart of this crime, would have troubled the broader community as well.

Important sentencing purposes

This is only the third case in which a court in Australia will pass sentence on offenders for engaging or attempting to engage in terrorist acts. The other two are R v Shoma (‘Shoma’)[35] and R v Khan (No 11) (‘Khan’).[36] There is therefore no appellate authority dealing directly with the sentencing of offenders convicted of offences against s 101.1 of the Code. However, the principles from cases dealing with other terrorism-related offending, much of it of a preparatory nature, are relevant.
[35][2019] VSC 367 (‘Shoma’).
[36][2019] NSWSC 594 (‘Khan’).

In Lodhi v The Queen,[37] the Court of Criminal Appeal in NSW accepted as being correct the statement by Lord Bingham CJ in R v Martin that:

In passing sentence for the most serious terrorist offences, the object of the Court will be to punish, deter and incapacitate: rehabilitation is likely to play a minor (if any) part.[38]

[37](2007) 179 A Crim R 470.

[38]Ibid [89].

In R v Alou (No 4) (‘Alou’),[39] Johnson J set out a number of principles identified by courts in Australia and the United Kingdom in respect of sentencing for terrorist offences, as follows:
[39][2018] NSWSC 221 (‘Alou’).

[165] The primary considerations on sentence for terrorist offences are the protection of the community, the punishment of the offender, the denunciation of the offending and both specific and general deterrence: R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691 at [92]; Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360 at [274]; R v Khazaal [2009] NSWSC 1015 at [47].
[166] Subjective circumstances and mitigating factors, including considerations of rehabilitation, are to be given substantially less weight: R v Lodhi at [89]; Lodhi v R at [274; R v Khazaal at [41]; DPP (Cth) v Besim [2017] VSCA 158 at [112]-[113].
[167] The religious and ideological motivation of an offender is relevant to the issue of community protection, as well as to the assessment of the objective gravity of the offence: R v Kahar [2016] 1 WLR 3156; [2006] EWCA Crim 568 at [19].
[168] Where it is not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance: R v Lodhi at [82]-[83], [88]; R v Elomar and Ors (2010) 264 ALR 759; [2010] NSWSC 10 at [93]; Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 at 591.
[169] Weight must be given to the need for general deterrence even if the force of ideological or religious motivations are such that deterrence may not be effective: R v Lodhi at [91]-[92]; Lodhi v R at [87]-[88]; R v Barot [2007] EWCA Crim 1119 at [45]; DPP (Cth) v Fattal [2013] VSCA 276 at [169]; DPP (Cth) v MHK [2017] VSCA 157 at [52]-[53].
[170] Whilst youth is relevant to determining the weight to be given to general deterrence and denunciation in the sentencing equation, its weight is diminished quite measurably in terrorist cases where the offender participates in, plans or carries out actions of extreme violence. The protection of society, and the upholding of its most fundamental values, necessitates that in terrorist cases, the sentencing considerations of general deterrence and denunciation must be given primacy above the ameliorating effect of youth: DPP (Cth) v MHK at [66]; R v Khalid and Ors [2017] NSWSC 1365 at [109]-[113], [270].
[171] In considering the nature and gravity of terrorist offences, courts in Australia have utilised a number of facts referred to by the UK Court of Appeal in R v Kahar at [19]: R v Elomar at [62]; R v Benbrika at [564]; R v Kahlid and Ords at [25]. The factors referred to in R v Kahar are:
(a) the degree of planning, research, complexity and sophistication involved, together with the extent of the offender’s commitment to carry out the act(s) of terrorism;
(b) the period of time involved, including the duration of the involvement of the particular offender;
(c) the depth and extent of the radicalisation of the offender as demonstrated (inter alia) by the possession of extremist material and/or the communication of such views to others; and
(d) the extent to which the offender has been responsible, by whatever means, for indoctrinating or attempting to indoctrinate others, and the vulnerability or otherwise of the target(s) of the indoctrination, be it actual or intended.

In her sentence in the very recent case of Shoma,[40] Justice Taylor, having set out the above passage from Alou, adopted and applied the principles contained therein. I will briefly elaborate on some of those principles.
[40]Shoma (n 35).

In respect of general deterrence, the Court of Appeal in Director of Public Prosecutions (Cth) v MHK (No 1) (‘MHK’)[41] had this to say:

Unsurprisingly, in cases involving terrorist offences, and preparation to commit terrorist acts, the principles of general deterrence, and protection of the community, are given substantial, if not primary, weight. In Lodhi v The Queen, Spigelman CJ quoted, with approval, the following passage from the judgment of Crockett J in the Court of Criminal Appeal in R v Sakr, in which the offender had placed explosive devices with intent to cause an explosion likely to endanger life or cause serious injury or property damage. Crockett J (with whom Murray and Hampel JJ agreed) stated:
If ever there were a case in which the nature of the offence and the circumstances of its commission, called for a deterrent penalty, then this is that case. The court is justified in believing that the community would expect that the punishment to be imposed should mark its intention, so far as it might be within the power of the court to do so, to arrest the insipient growth of terrorist style of criminal activity in this community.[42]

[41][2017] VSCA 157 (‘MHK’).

[42]Ibid [51] (citations omitted).

The Court in MHK[43] went on to say:

Further, the authorities have made it clear, and properly so, that the concepts of protection of the community, and incapacitation of the offender, are separate considerations to that of general deterrence… Unless the courts give adequate weight to the concepts of protection and incapacitation, they would fail to comply with the clear intent of the legislature in creating offences of the type with which this case is concerned.[44]

[43]Ibid.

[44]Ibid [54].

In respect of matters personal to the offender, the Court said:

It follows that, given the nature of the offence, and the purpose of the statutory provisions, mitigating factors of a personal nature, such as prospects of rehabilitation and the like, are given substantially less weight than in other forms of offending. In Lodhi v The Queen, Price J stated:
In determining the sentence to be passed the matters identified in section 16A(1) and (2) of the Crimes Act must be taken into account. These matters included subjective circumstances of the offender…and the prospect of rehabilitation. 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.[45]

[45]Ibid [55].

Bearing in mind the applicable authorities, and the circumstances of your crimes, the important sentencing purposes to be served by the sentences I pass upon you will be protection of the community, general deterrence, specific deterrence, punishment, and denunciation.

Before returning to those more important purposes, let me say some brief things about the matter of rehabilitation. Rehabilitation is not an important purpose to be served by these sentences. All counsel addressed me on the issue of the extent of your radicalisation at the time of the offending, a matter which goes to the seriousness of your crimes, and steps taken towards, or favourable prospects of, de-radicalisation, a matter which goes more to the need for specific deterrence and the prospects of rehabilitation. I earlier found that all of you were strong adherents to the evil ideology of IS, and that that was at the root of your offending. As I indicated earlier, Mohamed and Chaarani, I do not accept the material indicating that you have taken steps away from that adherence. If you continue to maintain the extreme beliefs and thinking which were at the heart of your crimes, your prospects of rehabilitation will be exceedingly dim. The state of your beliefs will be a matter for the assessment of others many years down the track, in light of the non-parole period I will impose on each of you.

As for you, Moukhaiber, Ms Gerry made detailed submissions to me indicating why your prospects of rehabilitation were good. She submitted that there was no evidence that you had willingly and fully embraced any extreme ideology. She further submitted that you were capable of de-radicalisation and rehabilitation. Indeed, she went so far as to submit that there were no factors to suggest that there would be a risk of reoffending by way of a terrorist act in your case. I must say, with all due respect to Ms Gerry, that I do not accept any of those submissions.

On the first score, there is evidence, as I have summarised, which shows that you did, indeed, willingly and fully embrace the extreme ideology of IS. Were that not the case, your offending would never have taken place. As to your being capable of de-radicalisation and rehabilitation, that is undoubtedly the case. Whether it occurs, however, will be a matter to play out in the years that follow. If you hold onto the shocking and evil views that governed your conduct on 11 December 2016, your prospects of rehabilitation, as with the other two accused, would be grim indeed. As to the final aspect of Ms Gerry’s submissions on this score, that is, that there are no factors to suggest that there would be a risk of your reoffending by way of a terrorist act, that is simply not the case. You held extreme views which led to your serious crime. There is no evidence at all that you have renounced those views. Indeed, you do not accept that you were even radicalised. In addition, you have accrued serious prior convictions pointing to your bad character and the future risk of further offending.

In summary, then, in respect of all of you where the issue of rehabilitation is concerned, that is not an important consideration in the sentences I will pass on you. In any event, as things currently stand, the prospects of your future rehabilitation will remain grim while you hold onto the extreme thinking which was behind your crimes.

Before I return to what I consider the important sentencing purposes, I should indicate that Ms Gerry made submissions to the effect that in your case, Moukhaiber, ‘there is no need for retribution and no need for any great level of specific deterrence’,[46] and later, that ‘he is not a person whose offending needs to be denounced’.[47] Ms Gerry sought to justify those submissions, but with all due respect, no proper justification was provided. I do not accept her submissions in this regard. In my view, there is no reason why denunciation of your conduct, punishment, and specific deterrence would not be important purposes to be served by the sentence I pass on you.
[46]Plea 134.
[47]Plea 134.

Returning, then, to the important sentencing purposes, I am required by this sentence to protect the community from the prospect of future offending by you. The sentences I pass on each of you will involve lengthy non-parole periods, during which time you will be incapacitated from committing terrorist offences against the wider community which will be thereby protected from you.

In respect of denunciation, the sentences passed must serve to mark the Court’s strong condemnation of the callous, cowardly and evil conduct which your offending entailed. That conduct simply has no place at all in a civilised society such as ours, a society which was yours to enjoy but whose rules you so flagrantly chose to ignore and whose freedoms and values you have entirely debased by your conduct.

In respect of punishment, by the sentences, the Court will punish you to an extent which is just in all of the circumstances.

Insofar as general deterrence is concerned, the sentences I pass upon you must serve to bring it home to others in our community who might be minded to carry out terrorist crimes for any reason, but in particular, out of misguided, narrow minded views of religious superiority, that such crimes will be met with powerful punishment.

As for specific deterrence, you yourselves must understand that any future conduct of a like kind will be met with a clear and strong response by the Court. The sentences I will pass aim to leave you in no doubt about that fact.

All-in-all, you will all receive head sentences and non-parole periods designed to pay proper regard to all of those purposes, and to appropriately reflect the seriousness of the serious crimes of which you have been convicted. As between you, Mohamed, and you, Chaarani, having carefully considered all of the circumstances of the crimes, and the matters personal to each of you, I have determined that it is not appropriate to distinguish between you in the sentences I pass.

As for you, Moukhaiber, the sentence I will pass on you for the single crime of which you have been convicted will be lower than those to be passed on the other two accused for that crime. This will reflect the fact that you were not involved at all in the first crime, that you were recruited by the others into the second crime, and that the duration and level of your involvement in the planning was less than that of the others. On the other hand, your prior convictions are much worse, meaning that the need for specific deterrence is even more clear in your case, and the prospects of rehabilitation perhaps even more grim than those for the other accused.

Current sentencing practices

One of the matters I am required to take into account in determining the appropriate sentence to be passed upon each of you is sentencing practices across the country in relation to the offences of which you have been found guilty, and variants of them. To that end, I have considered a number of decisions of intermediate appellate courts in Australia touching on the sentencing principles and the sentencing practices for terrorism offences, and sentences of judges alone. It would be correct to say that the vast majority of these decisions concern terrorist offending which was in the planning stage at the time the offender or offenders were apprehended. The majority of these involved planning for attacks which were intended to result in death or serious injury. Some of them, however, such as Lodhi to which some reference has been made in this sentence, concerned planning for property damage rather than serious injury or death. Two only of the decisions concerned sentences upon people for the completed carrying out of terrorist attacks. Both of these, Shoma,[48] and Khan,[49] resulted in very substantial sentences of imprisonment. I acknowledged during the hearing of the plea that I see the offending in this case as being substantially less serious than that in those two cases, and other cases where mayhem involving the loss of life was planned.
[48]Shoma (n 35) (Taylor J).
[49]Khan (n 36) (Bellew J).

I have taken a number of decisions into account insofar as the principles are concerned, and insofar as the decisions may serve to illustrate, although not define, the possible range of sentences available in this case. Of course, no decision in any other so-called comparable case amounts to a precedent binding me as to the sentence be to imposed in your cases.

Where this case sits in the spectrum

It is apparent that long sentences of imprisonment have almost invariably resulted, sometimes after the intervention of appellate courts, in respect of preparatory terrorist offences under s 101.6(1) of the Code or conspiracy to commit such offences. As for the two sentences passed in Australia thus far for engaging in terrorist acts, those sentences were also very lengthy. None of this is surprising. The maximum penalty for all of those offences is life imprisonment, and for all of the reasons enunciated in the authorities, the offences are of extraordinary seriousness.

This case is not exactly the same as any other case, and in sentencing you, I am required to take into account all of the circumstances of this individual case. Having considered all of the objective circumstances of the offending which has brought you before this Court, I am driven to the conclusion that your crimes, whilst clearly very serious, were in the mid-range of seriousness of such offences. There is no real indication of remorse or regret in any of you, other than regret for the situation in which you find yourselves. There are few mitigating circumstances. Your offending is deserving of, and can only be met by, very lengthy terms of imprisonment.

Duration of non-parole period relative to the head sentence

I am required by law to fix a non-parole period of at least three quarters the length of the head sentence. The non-parole period I will shortly announce for each of you, Mohamed and Chaarani, will slightly exceed three quarters the length of the head sentence in your cases. It is the non-parole period which reflects the minimum period I have determined that justice requires to be served by each of you in this case having regard to all the circumstances of the case before being released on parole. As for you, Moukhaiber, the non-parole period I will shortly announce will be precisely three quarters the length of the head sentence. I have considered that non-parole period to be appropriate in your case.

Explanation of sentence; s 16F Crimes Act 1914 (Cth)

The law requires me to explain to each of you in language you will understand the purpose and consequences of fixing a non-parole period in your case. The sentence I will impose on each of you will entail a period of imprisonment of not less than the non-parole period I will shortly announce. After that time, if you are considered suitable for release on parole, you will serve the balance of your sentence in the community. During that period on parole, if it occurs, you would be subject to conditions and you would be subject to supervision. Were you to fail to fulfil those conditions or comply with the reasonable requirements of your supervisor, you would be liable to be returned to custody to serve the balance of your sentence.

Warning pursuant to s 105A.23 of the Criminal Code (Cth)

In addition, I need to warn each of you pursuant to s 105A.23 of the Criminal Code (Cth) that an application may be made under Division 105A of the Code for a continuing detention order requiring you to be detained in a prison after the end of your sentence for the offence or offences of which you have been found guilty.

Conclusion

The objective circumstances of the intended crime at the heart of the conduct of each of you are very serious. You harboured extreme and unacceptable views about many things, and in particular, where this case is concerned, about the place of Shia Muslims in the world, and in this peaceful society of which you were members. Intending to advance the extreme ideology which was important to you, and in order to intimidate a group of people whom you detested for no legitimate reason at all, you carried out this callous, cowardly, vindictive and shameful attack upon the Imam Ali Islamic Centre. This, of course, as I made clear earlier, was far more than an attack upon a mere building. It was an attack upon a branch of your faith. It was an attack upon people entitled in our society to freely practise their religious beliefs, without interference. It was an attack upon society as a whole.

The sentences I will shortly pass upon each of you are designed to protect the community, to appropriately punish you for your offending, to clearly denounce your conduct, to deter you from any like offending in future, and to send a very clear message to like-minded people in this community who would contemplate planning for and carrying out a terrorist attack that if caught, they will be subject to very strong punishment.

Sentence

Will the three accused please stand.

Ahmed Mohamed and Abdullah Chaarani, on Charge 1, the offence of attempting to engage in a terrorist act, you are each sentenced to be imprisoned for a period of 8 years. On charge 2, the offence of engaging in a terrorist act, you are each sentenced to be imprisoned for a period of 18 years.

I order that the sentence upon each of you on Charge 1 commence today.

I order that the sentence upon each of you on Charge 2 commences four years from today on 24 July 2023.

The total effective sentence for each of you is therefore a sentence of imprisonment for 22 years.

I fix a non-parole period of 17 years.

Pursuant to s 18 of the Sentencing Act 1991, I declare the period of 703 days (from the date you were arrested and charged on these matters up to and including 23 July 2019 during which you have been held in custody in relation to this offence) is to be reckoned as a period of imprisonment already served under the sentences.

Hatim Moukhaiber, on charge 2, the offence of engaging in a terrorist act, you are sentenced to be imprisoned for a period of 16 years.

I fix a non-parole period of 12 years.

The sentence I have just passed upon you commences today.

Pursuant to s 18 of the Sentencing Act 1991, I declare the period of 704 days (from the date you were arrested in respect of this matter up to and including 23 July 2019 during which you have been held in custody in relation to this offence) is to be reckoned as a period of imprisonment already served under the sentence.

[2019] VSC 498

24 July 2019