R v Roche

[2005] WASCA 4

R -v- ROCHE [2005] WASCA 4

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 4
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:85/2004	Heard:	9 SEPTEMBER 2004
Coram:	MURRAY ACJ TEMPLEMAN J MCKECHNIE J	Delivered:	14/01/05
No of pages:	41	Judgment Part:	1 of 1
Result:	Appeal against sentence by Crown dismissed Application for leave to appeal against sentence by offender dismissed
Category:	A
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Parties:	THE QUEEN JACK ROCHE
Catchwords:	Criminal law and procedure Appeals by prosecution and defence against sentence Internationally protected persons Conspiracy to endanger lives by use of explosives No challenge to trial Judge's findings No material relevant fact overlooked Whether sentence manifestly inadequate or excessive
Legislation:	Crimes (Internationally Protected Persons) Act 1976 (Cth), s8(1), s 8(3c)(a) Crimes Act 1914 (Cth), s 16A, s 19AA(1), s 21E(1)(a), s 86(1)
Case References:	Bugmy v The Queen (1991) 169 CLR 525 Deakin v The Queen (1984) 58 ALJR 367 Demirian v The Queen (1988) 33 A Crim R 441 Dinsdale v The Queen (2000) 202 CLR 321 Dinsdale v The Queen (2002) 202 CLR 321 Duffy (1996) 85 A Crim R 456 Gallagher v The Queen (1991) 23 NSWLR 220 Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 Leucus (1995) 78 A Crim R 40 Leucus v The Queen (1995) 78 A Crim R 40 Liversidge v Anderson [1942] AC 206 Lowndes v The Queen (1999) 195 CLR 665 R v Byrne (1975) 62 Cr.App.R. 159 R v Clarke (1996) 2 VR 520 R v De Simoni (1981) 147 CLR 383 R v Disun (2003) 27 WAR 146 R v Martin (1999) 1 Cr.App.R.(S) 477 R v Mullin 12 Crim LR (S) 754 R v O'hAdhmaill [1996] Crim LR 509 R v Smith [2004] QCA 31 R v Turner (1975) 61 Cr.App.R. 67 Radebe (2001) 122 A Crim R 559 Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) (2002) 137 A Crim R 196 Savvas v The Queen (1995) 183 CLR 1 Suarez-Mejia (2001) 131 A Crim R 577 Templer v The Queen (1999) 108 A Crim R 407 Veen v The Queen (No 2) (1988) 164 CLR 465 Warby v The Queen (1982) 9 A Crim R 349 Brewer (1986) 32 A Crim R 1 Cameron v The Queen (2002) 209 CLR 339 Gronow v Gronow (1979) 144 CLR 513 Hayes v The Queen (1981) WAR 252 Oancea (1990) 51 A Crim R 141 R v Olbrich (1999) 199 CLR 270 R v Peterson (1984) WAR 329 R v Thomson (2000) 49 NSWLR 383 R v Wright [2003] WASCA 56 Wong v The Queen (2001) 207 CLR 584

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- ROCHE [2005] WASCA 4 CORAM : MURRAY ACJ

TEMPLEMAN J
MCKECHNIE J

HEARD : 9 SEPTEMBER 2004 DELIVERED : 14 JANUARY 2005 FILE NO/S : CCA 85 of 2004 BETWEEN : THE QUEEN

Appellant

AND

JACK ROCHE
Respondent

FILE NO/S : CCA 91 of 2004 BETWEEN : JACK ROCHE

Applicant

AND

THE QUEEN
Respondent

(Page 2)

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : HEALY DCJ

File No : IND 622 of 2003

Catchwords:

Criminal law and procedure - Appeals by prosecution and defence against sentence - Internationally protected persons - Conspiracy to endanger lives by use of explosives - No challenge to trial Judge's findings - No material relevant fact overlooked - Whether sentence manifestly inadequate or excessive

Legislation:

Crimes (Internationally Protected Persons) Act 1976 (Cth), s8(1), s 8(3c)(a)

Crimes Act 1914 (Cth), s 16A, s 19AA(1), s 21E(1)(a), s 86(1)

Result:

Appeal against sentence by Crown dismissed

Application for leave to appeal against sentence by offender dismissed

Category: A

(Page 3)

Representation:

CCA 85 of 2004

Counsel:

Appellant : Mr R J Davies QC & Mr M G A Plummer
Respondent : Mr H C Quail

Solicitors:

Appellant : Commonwealth Director of Public Prosecutions
Respondent : Hylton Quail

CCA 91 of 2004

Counsel:

Applicant : Mr H C Quail
Respondent : Mr R J Davies QC & Mr M G A Plummer

Solicitors:

Applicant : Hylton Quail
Respondent : Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bugmy v The Queen (1991) 169 CLR 525
Deakin v The Queen (1984) 58 ALJR 367
Demirian (1988) 33 A Crim R 441
Dinsdale v The Queen (2000) 202 CLR 321
Duffy (1996) 85 A Crim R 456
Gallagher v The Queen (1991) 23 NSWLR 220
Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952
Leucus (1995) 78 A Crim R 40
Liversidge v Anderson [1942] AC 206
Lowndes v The Queen (1999) 195 CLR 665
R v Byrne (1975) 62 Cr.App.R. 159
R v Clarke (1996) 2 VR 520
R v De Simoni (1981) 147 CLR 383
R v Disun (2003) 27 WAR 146


(Page 4)

R v Martin (1999) 1 Cr.App.R.(S) 477
R v Mullin 12 Crim LR (S) 754
R v O'hAdhmaill [1996] Crim LR 509
R v Smith [2004] QCA 31
R v Turner (1975) 61 Cr.App.R. 67
Radebe (2001) 122 A Crim R 559
Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) (2002) 137 A Crim R 196
Savvas v The Queen (1995) 183 CLR 1
Suarez-Mejia (2001) 131 A Crim R 577
Templer (1999) 108 A Crim R 407
Veen v The Queen (No 2) (1988) 164 CLR 465
Warby (1982) 9 A Crim R 349

Case(s) also cited:

Brewer (1986) 32 A Crim R 1
Cameron v The Queen (2002) 209 CLR 339
Gronow v Gronow (1979) 144 CLR 513
Hayes v The Queen (1981) WAR 252
Oancea (1990) 51 A Crim R 141
R v Olbrich (1999) 199 CLR 270
R v Peterson (1984) WAR 329
R v Thomson (2000) 49 NSWLR 383
R v Wright [2003] WASCA 56
Wong v The Queen (2001) 207 CLR 584


(Page 5)

1 MURRAY ACJ: I am grateful to have had access to drafts of the judgments prepared by Templeman and McKechnie JJ. I note that their Honours disagree as to the fate of the Crown appeal. Like Templeman J, I consider that appeal should be dismissed. But although I disagree with McKechnie J in the conclusion to which his Honour comes, I agree with his Honour's discussion of the relevant sentencing principles and I propose, gratefully, to adopt his Honour's careful distillation of those principles and content myself with a discussion of their application to this case.

2 I start by noting that under the Crimes Act 1914 (Cth), s 86, as it was at times relevant to this indictment, the offence of which Roche (to whom it will be convenient to refer as "the offender") was convicted was that of conspiracy to commit an offence against the law of the Commonwealth. Unlike many jurisdictions, including this State, where such an offence exists under State law, the Commonwealth offence of conspiracy is punishable "as if the offence to which the conspiracy relates had been committed". In this State, generally speaking, conspiracy to commit an offence is punishable by half the penalty with which the principal offence is punishable on indictment: Criminal Code (WA), s 558.

3 In my view, that is consistent with the fact that conspiracy to commit an offence, like an attempt to commit an offence and incitement to commit an offence, is an inchoate offence chargeable although the acts necessary to complete the commission of the principal offence have not occurred. I consider that the fact that conspiracy to commit a Commonwealth offence is punishable to the same extent as the completed offence does not detract from the inchoate nature of the conspiracy offence for purposes of punishment, but it should be recognised that the penalty range available is that provided for the principal offence and, therefore, it must be recognised by the court to be the case that for the worst form of the conspiracy offence it may be appropriate to impose the maximum punishment available for the completed offence.

4 In that regard, however, and importantly so far as this case is concerned, it must be recalled that in a conspiracy case the court is punishing the offender for the completed agreement to commit the crime alleged, the offender intending at that time to implement that agreement. It is therefore proper that the court, for sentencing purposes, should have regard to the nature of the agreement and its seriousness as such, together with the conduct of the offender in seeking to implement the agreement, conduct which will often be expressed, as in this case, in the overt acts alleged against the offender. So it will be proper to have regard not only

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to the features presented by the conspiracy itself, but also its established duration and the offender's participation in it: Savvas v The Queen (1995) 183 CLR 1, 7, 8.

5 The basic nature of the conspiracy was expressed in the indictment to which ultimately the offender pleaded guilty. It charged him with a conspiracy formed between 15 February 2000 and 30 September 2000, although that really marked the duration of the conspiracy and the extent of the offender's participation in it. It was a conspiracy to commit the offence provided by the Crimes (Internationally Protected Persons) Act 1976 (Cth), s 8(3C)(a). As particularised in the indictment, that was the offence of intentionally destroying or damaging by means of explosive, official premises of internationally protected persons - the Israeli Embassy in Canberra - with intent to endanger the lives of internationally protected persons by that damage or destruction. An offender is liable to imprisonment for 25 years. That was, therefore, the maximum penalty available for the conspiracy charged.

6 The legislation provides this and other offences by way of implementation by Australia of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, a Convention ratified by this country, which ratification is approved by s 7 of the Act.

7 Section 8 provides a series of offences differently punishable. The most serious is to murder or kidnap an internationally protected person, an offence punishable by life imprisonment. There is a range of offences concerned with attacking the person or liberty of such a person and a range of offences concerned with intentional destruction or damage of property. As I have said, the most serious form of such an offence is where the destruction or damage is by fire or explosive with the intention of endangering the life of an internationally protected person by means of that destruction or damage. Without that intention, such an offence is punishable by 15 years imprisonment. If the destruction or damage is otherwise than by fire or explosive, the penalty range is between 10 and 20 years imprisonment, depending upon the circumstances. To threaten to commit any such offence is punishable by imprisonment for 7 years.

8 The importance of these offences as part of this country's commitment to the protection of internationally protected persons is undoubted. Such persons may be sufficiently described for present purposes as heads of state, other representatives or officials of countries

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and officials or agents of certain international organisations and overseas missions, together with their families.

9 The offender was sentenced to 10 years imprisonment, reduced to 9 years imprisonment on account of promised future co-operation, that reduction being separately stated in compliance with s 21E of the Crimes Act. A non-parole period of 4½ years was fixed and the sentence was backdated to 18 November 2002, when the applicant was interviewed by agents of the Australian Federal Police and was arrested. He had been in custody since that time.

10 The Crown appeals against the inadequacy of that sentence. It is asserted that neither the head sentence nor the non-parole period were of a severity appropriate to the circumstances of the case. The sentence did not properly reflect the need for general deterrence, it is said, and it is asserted the sentencing Judge erred by giving too much weight to matters personal to the offender, his plea of guilty, his co-operation and his promised future co-operation.

11 The offender's application for leave to appeal against the severity of the sentence, on the other hand, asserts that insufficient credit was given for the offender's past co-operation and promised future co-operation. It is convenient to say something now about those matters, particularly identified by the parties as providing cause for complaint about the sentence.

12 I have mentioned that the sentencing Judge discounted his sentence by a year for promised future co-operation. I agree with Templeman and McKechnie JJ, for the reasons their Honours give, that neither side can have any cause for complaint about the allowance made for promised future co-operation. To the extent to which it is possible to assess the value of that promise, it does not seem to me that it can be said affirmatively by either side that the discretion miscarried either because his Honour allowed too much of a discount or too small a discount, having regard to this factor.

13 His Honour quantified the discount he allowed for the plea of guilty and the co-operation previously given to the AFP and ASIO, so far as the character of that co-operation was established. His Honour said he would have imposed a sentence 2 years greater had those circumstances not been present. I need not set out in any detail what the past co-operation consisted of. The offender talked to the agencies mentioned. He described what occurred and he named names. How useful all that was

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does not seem to me to appear clearly, but to the extent that it was within his power, it was accepted that the applicant co-operated in the investigation process.

14 His plea of guilty was given after the close of the Crown case and during the course of his evidence. I read his evidence. While it might be said that the offender was not necessarily by his evidence assisting to make out a defence case of any strength, there was nonetheless value in the plea, if no more than rendering his conviction certain. But these were matters to which the sentencing Judge was to have regard under s 16A(2)(g) and (h) of the Crimes Act and their tendency was obviously mitigatory in effect.

15 While it might be said that an allowance of 2 years was rather more than it ought to have been or, from a different point of view, rather less than it might have been, in the end it seems to me that the crucial point for this Court is the simple point that, in my view, neither party has made out a case that upon this ground the sentencing discretion miscarried and there is an end to that matter: Lowndes v The Queen (1999) 195 CLR 665.

16 That is sufficient to dispose of the offender's application for leave to appeal against sentence. Leave should be refused.

17 Turning to the general grounds relied upon in the Crown's appeal against sentence, that the sentence was manifestly inadequate to serve the need for general deterrence having regard to the circumstances of the offence, I remind myself that this Court will review the exercise of discretion by the sentencing Judge mindful of the fact that it is dealing with a Crown appeal and mindful of the element of double jeopardy which that involves, placing in jeopardy for a second time the respondent's liberty. Having regard to that fact, the Court will approach such an appeal with additional circumspection. It will take the view that such an appeal should, generally speaking, be a rarity. It should be directed to establishing error of principle and achieving certainty in the sentencing process. The error by the sentencing Judge which is to be identified must appear with abundant clarity before this Court will intervene. That will offer protection against tinkering with sentences. Where the Court is minded to intervene, it will again do so with circumspection by choosing a sentencing disposition at the lower end of severity within the range of available dispositions: Dinsdale v The Queen (2000) 202 CLR 321, 339 - 341 [57] - [62].

(Page 9)

18 It is against that background and accepting, as I do, the statement of general principles to be applied in a case such as this formulated by McKechnie J after his Honour's review of relevant authorities, that I turn to consideration of the reasons of the trial Judge for the sentence imposed. The facts found by his Honour may be accepted. I particularly note the following: the offender was not the instigator of the conspiracy. He acted upon the direction of others and there was no finding that he was to be the bomber. However, the Israeli Embassy was a clear target and the offender participated willingly in the process by which the conspiracy was to be carried into effect. He went about seeking to recruit at least one person to be a member of a terrorist cell in Australia, albeit in a desultory fashion and without success.

19 He was aware that the enterprise in which he was to participate involved at least damage to the property of the Embassy. It was not necessarily the aim of the conspiracy that people in the Embassy would be killed, but the offender was aware, and the intention was, that the lives of persons in the Embassy would be endangered by the detonation of the explosive device. This was not necessarily to be an event which would not be repeated. Indeed, the offender understood that if the planned event came to pass and his part in it was not detected, he and the others involved would lie low and await their chance for a further effort of this kind.

20 The offender was engaged in the conspiracy between March and September 2000, although in that period of about six months he does not appear to have accomplished very much. He was given money and he purchased a vehicle. He drove from Perth to Canberra and Sydney. He took photographs and made a video film. He took some preliminary steps towards the acquisition of materials from which an explosive device might ultimately be constructed, but he did not, even years later, provide the results of his work to any other person in furtherance of the conspiracy.

21 In fact, he lost enthusiasm. By July the offender was attempting to make contact with ASIO. In August other attempts were made to make contact with the authorities. In that month the offender was instructed by Abu Bakar Bashir to cease his activities. He did not immediately do so, but he soon ceased his activities and did nothing further until his premises were raided by police agents on 30 October 2002. By then, and in early November 2002, he was interviewed by a press reporter to whom he spoke and, as I have said, he was ultimately interviewed by the AFP and arrested on 18 November 2002. Effectively, therefore, he remained in the community, inactive, for about two years until his arrest and incarceration.

(Page 10)

22 The trial Judge found that there was no prospect that the offender would be involved in anything of this kind again. He expressed the view that the prospects of rehabilitation were good. The offender had been a model prisoner since his incarceration. His contrition was accepted by the sentencing Judge.

23 When he was sentenced, he was 50 years of age. He had had a varied but otherwise unremarkable past. There were some previous convictions of no particular relevance for sentencing purposes, mostly alcohol related. Indeed, it seems to have been accepted that the offender's genuine conversion to Islam and his study of that religion assisted to overcome what the offender regarded as alcoholism and led to his marriage with his present wife. The applicant had embarked for the first time in his life upon the pursuit of higher educational qualifications. It was appreciated that his co-operation with the investigating authorities might give cause for concern about the offender's personal safety. Because of threats made against him in prison, he had been kept in segregation.

24 All of that was considered by the sentencing Judge. His Honour did not, in my opinion, overlook any relevant material fact. He was mindful of the nature and seriousness of the offence of which the offender had been convicted. His Honour was mindful of the need to impose a sentence which would be a strong deterrent to others who might be tempted to allow themselves to be involved in such activity.

25 I am not persuaded that his Honour's exercise of discretion miscarried. No doubt a longer term of imprisonment and a longer non-parole period might have fallen within the general range of discretion appropriate to the case, but I am quite unpersuaded that the sentence imposed was so manifestly inadequate as to warrant interference by this Court. Given the seriousness of the offence, it is obvious, I think, that this was a conspiracy offence which might have been committed in very much more serious circumstances than are presented by this case. Having regard to the maximum available, it seems to me that a sentence of 9 years with a non-parole period of 4½ years fell within the acceptable range and constituted punishment proportionate to the seriousness of the offending behaviour. In my opinion, the Crown's appeal against sentence should be dismissed.

26 TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be delivered by McKechnie J. His Honour has set out the relevant facts and extracts from the learned sentencing Judge's remarks,

(Page 11)

thereby making it unnecessary for me to do so, except to the extent necessary for an understanding of my reasons.

27 The gravamen of the Crown's case on appeal was that the conspiracy in which the respondent was involved was extremely serious, being aggravated by an intent to endanger the lives of internationally protected persons. It was submitted that in those circumstances, a penalty approaching the maximum should have been imposed.

28 The relevant substantive offence in the present case is that created by s 8(3C)(a) of the Crimes (Internationally Protected Persons) Act 1976 (Cth) being the intentional destruction or damage by means of explosive of official premises of internationally protected persons - the Israeli Embassy in the present case – with intent to endanger the lives of those persons. The substantive offence carries a maximum penalty of 25 years' imprisonment.

29 By the operation of s 86 of the Crimes Act 1914 (Cth), as it was in force at the material time, the maximum penalty for the offence of which the respondent was convicted is also 25 years' imprisonment. Section 86 provides:

"A person who conspires with another person to commit an offence against the law of the Commonwealth punishable by imprisonment for more than 12 months … is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed."

In other words, as Phillips JA put it in Templer (1999) 108 A Crim R 407 at 408, albeit in relation to a different offence: "by s 86(1) of the Crimes Act … the offence of conspiracy to commit such an offence attracts the like penalty."

30 The respondent was sentenced pursuant to s 16A of the Crimes Act. Section 16A(1) provides that in determining the sentence to be passed, the Court must impose a sentence or make an order "that is of a severity appropriate in all the circumstances of the offence".

31 A number of factors are set out in s 16A(2) which the Court must take into account when performing this exercise. They include "the nature and circumstances of the offence", and "any injury, loss or damage resulting from the offence.

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32 In order to determine an appropriate sentence in relation to conspiracy it is necessary to consider what the offender actually did. Generally, an offender is not to be punished for what he might have done, or at some stage intended to do, or thought about doing – but did not do. The point is made in Savvas v The Queen (1995) 183 CLR 1, at p 6, where the High Court approved the statement in Gillies on the Law of Criminal Conspiracy (2nd ed (1990), p 254-5) that:

"A considerable number of more recently reported cases illustrate the imposition of sentences by reference to what was actually done in the transaction of the conspiracy."

33 However, it may be necessary to draw a distinction between offenders whose criminal intentions are frustrated by the timely intervention of the police or other relevant authorities and those such as the respondent, who desist from criminal conduct voluntarily.

34 An example of the former case is Warby (1982) 9 A Crim R 349. There, the offender had engaged in a conspiracy to import heroin into Australia from Thailand. Street CJ (with whom Samuels JA and Lee J agreed), referred (at p 350) to a submission made on behalf of the offender that he had "dropped out of the conspiracy prior to its final disintegration". His Honour did not accept that submission. He held that:

" … at what might be regarded as the central core of the negotiations carried out with a view to planning and bringing of this venture, the appellant was deeply involved."

35 In the present case, the "central core" of the conspiracy, had it proceeded, would have involved the manufacture of some kind of bomb or explosive device, the acquisition of some means of conveying that device to the Israeli Embassy, its detonation, and (presumably) the escape of those involved.

36 The conspiracy did not, however, progress to that stage. Instead, the prosecution relied on 24 much more preliminary overt acts of the respondent in aid of the conspiracy. They are set out in the judgment of McKechnie J at [84].

37 In support of its case, the prosecution tendered a notebook written by the respondent in Indonesian, and a translation made by an interpreter. Because the translation had not been available when the respondent was interviewed by Federal Police officers, he had not been questioned in detail about the contents of his notebook. Nor was it the subject of

(Page 13)

cross-examination at the trial: the respondent pleaded guilty before that point was reached.

38 In the hearing of the appeal, leading counsel for the Crown placed considerable emphasis on the notebook, because the document was "never really aired before his Honour" (TS 18). That may be so, but it was clearly open to the prosecution to rely on the notebook in the course of the sentencing submissions.

39 In any event, I do not think it necessary to quote from the notebook. The respondent's intentions, as disclosed in that document, were undoubtedly as the Judge found them to be. His Honour said:

It's clear that when you entered into the conspiracy you were full of fervour for the Islamic cause and were prepared to assist the conspiracy by carrying out the surveillance of the Israeli embassy in Canberra and setting up a cell in Australia of like-minded Australian Muslims to carry out the plan. This fervour is evidenced by the letter which you wrote to your son in which reference was made to:

'The greater sacrifice worthy of the highest reward from Allah that I am about to undertake. As Muslims we are obligated to perform jihad to uphold the laws of Allah and we are obligated to perform jihad to uphold the laws of Allah. As we see today, the disbelievers are now out of control and believe that their ways based on inequality, arrogance, et cetera, are right. I hate them for that and need to learn more about how to combat them.'

… You were also interviewed by the journalist and told her when you came back you were full of fervour. You also said when you came back from Afghanistan you were quite willing to go through 'with all this sort of stuff,' but that you had made a mistake in telling Abdul Rahim Ayoub and his brother what you were doing. Later when she asked you what was in your mind you said:

'When I initially arrived from overseas I thought this is great. I couldn't see anything wrong with it. It's not aimed at Australian but Israeli and American men that we're following in their country. They are casualties of war.'

(Page 14)

You talked to her about your plan to set up an al-Qaeda operational cell which was to plan getting an Israeli or a United States target, getting that target and then disappearing for a few months and to do the same thing again. As to your willingness to be part of the plan to set off a bomb, you told her that you could justify the killing of Israelis because of what was happening in Palestine, it being pure evil." (AB 38-9)

40 The most sinister of the acts carried out by the respondent were the photographing and videoing of the Israeli Consulate in Sydney and the Israeli Embassy in Canberra. The purchase of small igniters from model shops was, I think of less significance, having regard to the Judge's finding that:

"Your role in the conspiracy was to carry out the surveillance on the embassy in Canberra and to send the material to Afghanistan for further planning. You were to recruit members for an al-Qaeda cell in Australia. I don't believe your role was to be one of the persons who was to destroy or damage by means of explosive the embassy. However, your role was an important one and that you first you (sic) very willing embraced it." (AB 40-41)

41 The fact remains that shortly after the respondent carried out these acts, he withdrew from the conspiracy and played no further part for over two years before he was taken into custody. Thus, as the Judge said:

"That this conspiracy went no further than its initial planning stages and surveillance of the premises in the embassy in Canberra meant that nobody was injured and no property was damaged as a result of the conspiracy." (AB 41)

The Judge went on to say:

"It's unlikely you will ever be involved in an offence of this nature in the future. The consequences to you of your involvement have been personally devastating for you and your likelihood of being a further vehicle for these people is, I think, very slim, so slim as to be non-existent." (AB 44)

42 In all the circumstances as the Judge found them to be, I consider that the starting point of 12 years' imprisonment was well within his Honour's discretion.
(Page 15)

43 It must be emphasised that whether or not the members of this Court would have imposed a different sentence on the respondent is irrelevant. The issue is whether the appellant has demonstrated that the sentencing discretion has miscarried: Lowndes v The Queen (1999) 195 CLR 665 at 671-2.

44 Of course, this Court is concerned with the sentence actually imposed on the respondent: not the starting point. However, I respectfully agree with McKechnie J, that the discount of 2 years for the respondent's past cooperation with the authorities and his plea of guilty, and a further 1 year for his promised future cooperation, were well within the sentencing Judge's discretion.

45 Further, I do not think the Judge erred in fixing a minimum term which was one half of the head sentence. It was not suggested that his Honour was wrong to make the respondent eligible for parole. Indeed having regard to the considerations to which McKechnie J has referred in relation to parole, I consider that in all the circumstances, the period fixed by the Judge was appropriate.

46 When an appellate court considers whether a sentence is manifestly excessive or inadequate, it is common to have regard to sentences imposed in respect of similar offences. Even where there is no recognised tariff – cases involving sexual offences for example – it is sometimes appropriate to have regard to the range of sentences imposed for broadly comparable conduct.

47 In the present case, there is no tariff; a fact which, in my view, presents a considerable difficulty for the Crown in seeking to demonstrate a mis-exercise of the sentencing discretion. The difficulty is compounded by the fact that no complaint is made about the matters taken into account by the sentencing Judge.

48 Regard must be had also to the fact that this is a Crown appeal. As Murray J said in Leucus (1995) 78 A Crim R 40, at 50, Crown appeals against sentence involve the respondent in double jeopardy. Agreeing with Kennedy and Rowland JJ, his Honour said:

"It seems clear therefore, that the rationale behind the operation of the principle as to double jeopardy is that it directs the Court of Criminal Appeal to bear in mind that the essential purpose of a Crown appeal against sentence ought to be to expose serious error of principle in the sentencing court, to correct that, and by the reinforcement of a proper statement of principle to aid the

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consistency and certainty of the sentencing process and to avoid undue disparity. Upon that basis a Crown appeal ought to be a relative rarity, and it should only be in a clear case that the appellate court is persuaded to interfere with the sentencing disposition of the Judge at first instance."

49 The Court restated the principle recently in R v Disun (2003) 27 WAR 146, at [26] – [27].

50 The Court was told by leading counsel for the Crown that the present case was "the first conspiracy related to international terrorism in this country" (TS 2). Thus, counsel submitted, it was appropriate for the Court "to take a stand by way of a deterrent penalty". Later in his submissions, counsel said:

"This Court is called upon to set an appropriate approach to this type of conspiracy to international terrorism, and called upon to do it for the first time." (TS 30)

51 In my view, that submission calls for two responses. First: if the submission was an invitation to deliver a form of guideline judgment, the invitation should not be accepted. In Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) (2002) 137 A Crim R 196 the Court of Criminal Appeal was asked to give a guideline judgment in relation to the offence of "assault police" in s 60(1) of the Crimes Act 1900 (NSW). Spigelman J declined to do so, for reasons which included the fact that there had been no history of Crown appeals with respect to the offence in question. Wood CJ at CL and Grove, Sully and James JJ agreed. That is the position here.

52 Secondly, this is not, in fact, the first case of international terrorism in Australia. In Demirian (1988) 33 A Crim R 441, the Court of Criminal Appeal in Victoria heard, inter alia, an application for leave to appeal against the sentence imposed on Demirian for conspiracy to cause an explosion likely to endanger life or cause serious injury arising out of an incident at the Turkish Consulate in Melbourne, in 1986.

53 On a Sunday in November of that year, a large bomb which had been placed in the rear of a Holden Torana, exploded in the car park below a building at 44 Caroline Street, South Yarra, causing very substantial damage to that building and to other premises in the vicinity. 44 Caroline Street was used for business purposes. The Turkish Consulate occupied the first floor. Presumably because the offence was committed on a

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Sunday, the Consulate was unoccupied. There was only one person in the building. He was injured, but not seriously.

54 After the explosion, human remains were found close to the vehicle. It emerged from a detailed scientific investigation that a man had probably been standing alongside the driver's door when the bomb exploded, apparently, prematurely.

55 Demirian was charged with conspiracy and with the murder of the deceased. The Crown case was that Demirian was a party to the agreement with the deceased, and perhaps others, to place and explode the bomb so that it would blow up the building containing the Turkish Consulate.

56 Demirian was convicted of both conspiracy and murder. On appeal, the conviction for conspiracy was upheld and that for murder was quashed. The only remaining issue was whether the sentence imposed on Demirian for the conspiracy was excessive: a sentence of 10 years' imprisonment, with no minimum term.

57 In a joint judgment, McGarvie and O'Bryan JJ said:

"The type of activity engaged in by the applicant and others is rare in this country but terrorist acts are commonplace in the country from whence the applicant emigrated to Australia. Unless courts in this country are vigilant in imposing condign sentences for such conduct evil-minded persons might seek to emulate this conduct. The conduct of the applicant in conspiring with others to endanger life and cause serious injury to property by detonating an explosive substance beneath the Consulate brought shame to this country when the bomb exploded. The Turkish nation is a friendly power and members of the Turkish community now assimilated into Australian society were affronted by this evil deed. The heinousness of the crime is accentuated by the fact that the applicant abused the sanctuary this country offered him.

When a crime of such notoriety and heinousness is committed in the name of a political cause this Court is not required to fix a minimum term. The political nature of the offence and its seriousness render the fixing of such a term inappropriate. A sentence imposed in these circumstances should be exceptional to mark the seriousness with which the crime is viewed and

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therefore no minimum term should be fixed." (1988 33 A Crim R at p 474)

58 Tadgell J agreed, in relation to that aspect of the appeal (at p 481).

59 The maximum penalty for the offence of which Demirian was convicted was 15 years' imprisonment. The sentence imposed on him was therefore two-thirds of the maximum.

60 In my view, it is not unreasonable to assume that if the maximum penalty in Demirian's case (supra) had been 25 years' imprisonment, a sentence of two thirds of that maximum would have been imposed on him: that is, a sentence of the order of 16 years' imprisonment. It may be assumed also, that if Demirian had succeeded in causing death or serious injury to some person, the sentence would have been more severe, even though the Crown case was that the bomb was placed with the intention of causing death or serious injury, and the knowledge that it would probably do so.

61 The present case is distinguishable from Demirian in several respects: the respondent did not commit the substantive offence, he caused no actual harm and he volunteered an account of his involvement to the Federal Police. In my view, a notional adjustment to the sentence imposed on Demirian to take account of those factors would lead one instinctively to a sentence in the region of that suggested by the sentencing Judge as the starting point for the respondent.

62 I consider that the passage in the judgment of McGarvie and O'Bryan JJ in Demirian (supra) set out above, although written some 16 years ago, still reflects the appropriate judicial response to those who would engage in terrorist activities in Australia. Everything said by their Honours about Demirian could have been applied mutatis mutandis to the respondent, had he continued with the conspiracy to the point at which the substantive offence was committed. The respondent could then have expected a much more severe sentence and no minimum term.

63 However, I repeat that given the circumstances as the Judge found them to be, the fact that there is no challenge to his Honour's findings, and the fact this is a Crown appeal, I am not persuaded that his Honour's sentencing discretion miscarried. I would therefore dismiss the appeal.

64 I turn to the respondent's application for leave to appeal against his sentence.

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65 Having reached the conclusion, on the Crown appeal, that the sentence imposed on the applicant (as I shall now refer to him) reflected the sound exercise of the sentencing discretion, I am unable to see any basis upon which it could be said that the sentence was manifestly excessive.

66 The only ground relied on by the applicant is that he was given insufficient credit for his past cooperation with the relevant authorities.

67 It was submitted on behalf of the applicant that the information he had provided to the authorities was "extraordinarily valuable". However, the only evidence to that effect before the sentencing Judge was the statement of a Federal agent who had been in charge of the investigation. He described the information given by the applicant as "unique". The information was not, itself, before the Court. But even if it had been, I think it doubtful whether the sentencing Judge would have been in a position to assess its significance. This is not a case in which information given by an offender has led to others being brought to justice.

68 Having regard to the extreme lateness of the applicant's plea of guilty, that plea alone would have justified only a very small discount. It may therefore be assumed that the bulk of the discount reflected the Judge's view about the utility of the applicant's past cooperation. In my view, a discount of nearly 2 years was both significant and adequate.

69 I would therefore dismiss the application for leave to appeal against sentence.

MCKECHNIE J:

Introduction

70 At the height of war Lord Atkin, alone, and in dissent, said:

"In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.": Liversidge v Anderson [1942] AC 206 at 244.

71 It took nearly 40 years for the House of Lords to acknowledge that the dissenting speech of Lord Atkin was right: Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 at 1011.

72 At a time when Australia is under threat from terrorists' bombs, the importance of Lord Atkin's speech should be emphasised. It stands as an elegant refutation of Cicero's observation. Especially amid the clash of

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arms it is the duty of courts in a democracy to apply the law without fear or favour, affection or ill will.

73 Article 9 of the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons guarantees any person regarding whom proceedings are being carried out, fair treatment at all stages of the proceedings.

74 Submissions by the prosecution that "…the whole Nation awaits upon this Court to hear just what is to be the approach to this sort of thing" with all the intended implications, provide no assistance with determination of the issue of sentence. As counsel for Roche put it:

"The rule of law requires that Mr Roche be sentenced for the crime for which he was convicted and not for the fear that terrorists create."

75 There are before the Court two appeals against a sentence of 9 years' imprisonment with the minimum of 4½ years' imprisonment imposed on Roche on 1 June 2004 following his plea of guilty during the course of a trial on an indictment charging that:

"Between 15 February 2000 and 30 September 2000 in Malaysia, Pakistan and Afghanistan, Jack Roche conspired with Mukhtar, Abu Hafs, Saif and divers others, to commit an offence contrary to section 8(3C)(a) of the Crimes (Internationally Protected Persons) Act 1976, being to intentionally destroy or damage by means of explosive, official premises of internationally protected persons, namely the Israeli Embassy, with intent to endanger the lives of internationally protected persons by that destruction or damage, contrary to section 86(1) of the Crimes Act 1914."

76 The prosecution, by notice of appeal dated 11 June 2004, asserts that the sentence is manifestly inadequate. Roche, by application for leave to appeal dated 17 June 2004, asserts that the sentence is manifestly excessive. To an extent different principles govern each appeal. Roche must satisfy the Court that this is a fit subject for leave to appeal. The prosecution is constrained by principles relating to prosecution appeals neatly set out in R v Clarke (1996) 2 VR 520 at 522 and 523; Suarez-Mejia (2001) 131 A Crim R 577.
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77 Both appeals seek the interference by this Court into the exercise of judicial discretion entrusted to the trial Judge. In Lowndes v The Queen (1999) 195 CLR 665 the Court said at [15]:

"Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

78 Sometimes a measure of the exercise of discretion may be whether a sentence falls within or without a range of sentences commonly imposed for offences of the type. This case, being the first prosecution of its type in Australia, does not have that measure available to it.

79 Whether a sentence is manifestly excessive or inadequate is a conclusion: Dinsdale v The Queen (2000) 202 CLR 321 per Gleeson CJ and Hayne J at [6]. This does not, however, allow a court simply to state the conclusion without explaining why the sentencing discretion miscarried.

80 The enquiry is not whether the sentence is too low or too high but whether the sentence manifests error. In sentencing decisions, "…straight jackets are not the characteristic; the fully informed judicial sentencing discretion is the hallmark": R v Smith [2004] QCA 31 per de Jersey CJ.

The factual circumstances

81 The trial commenced on 17 May 2004. The prosecution closed its case at about lunchtime on 26 May 2004. Roche then went into evidence on 26 May 2004 and cross-examination commenced after lunch on 27 May 2004. On 28 May 2004, before cross-examination continued, the indictment was again put to Roche and he pleaded guilty following which a conviction was entered.

82 There is no material challenge to the Judge's findings or his characterisation of the offence, except as to the issue of co-operation which I will deal with shortly. The prosecution referred to aspects of the evidence on appeal. I have reviewed that evidence and consider that the

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Judge did not mistake any fact or overlook any matter of importance. I adopt and rely upon his recitation of the facts.

83 The Judge noted that he was in the unusual position of having heard all the evidence relied on by the prosecution and the evidence-in-chief in which Roche had put his defence. The Judge noted that the plea of guilty adversely affected the credibility of the evidence-in-chief before proceeding to find facts proved beyond reasonable doubt as follows:

"In light of your plea of guilty I have rejected any of the statements by you, particularly in your evidence-in-chief, which were intended to clear you of guilt. I will deal later in the reasons with your personal circumstances and your conversion to Islam. Dealing first with the nature and the circumstances of the offence, the indictment pleaded that the conspiracy was formed between you and the named persons between 15 February and 30 September 2000. The places where it was formed were pleaded as Malaysia, Pakistan and Afghanistan.

Those dates were based on the evidence of trips you took. In February 2000 Abdul Rahim Ayub, then the leader of Jemaah Islamiya in Sydney, delegated you to visit Hambali in Malaysia. You flew to Malaysia on 15 February and met Hambali. He was then a leader of Jemaah Islamiya in Malaysia. He told you that you were to go to Afghanistan for basic training. He gave you some money towards your expenses. You flew back to Australia in order to obtain the necessary entry visa for entry in Pakistan.

As to the persons with whom you are alleged to have conspired and now admit having conspired, they were as follows: Mukhtar as a senior member of the terrorist organisation al-Qaeda in Karachi, Pakistan; Abu Hafs, you identified as being second-in-command of al-Qaeda; Saif was another senior member of al-Qaeda, whom you met with Abu Hafs in the camp at Afghanistan. By your plea you have admitted conspiring with those people to do what is alleged in the indictment.

At the camp you also briefly met the leader of that organisation, that is, al-Qaeda; namely Osama bin Laden. You didn't have any discussions with him about the conspiracy, those discussions were with his named deputies and associates. The indictment alleged that you conspired with divers others. It's

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not necessary for me to determine who they were for the purpose of sentence. On 23 March 2000 you flew to Malaysia and again met Hambali. He gave you a letter to take to Mukhtar in Karachi. You flew to Karachi, met Mukhtar. You gave him this letter from Hambali.

Mukhtar asked you at that time about Israeli and American interests in Australia. He gave you another letter to take to Afghanistan. He told you that you were to meet the sheikh. That turned out to be Osama bin Laden. You went by bus from Karachi to Quetta and then into Afghanistan to an al-Qaeda camp near Kandahar. One of the people you travelled with handed over the letter from Mukhtar to Osama bin Laden. You were later spoken to by Abu Hafs and Saif.

You were again asked about Israeli and American interests in Australia. You were told there were two important targets in Australia, one of which was the Israeli Embassy. While you were in the camp you underwent a course of how to use explosives. You were also asked to set up a cell of like-minded Australian Muslims, who were to undertake training in Afghanistan before returning to Australia. In your interview on 18 November you were asked what was going to occur to these targets to your knowledge.

At that time you replied that the idea was either to destroy these targets or get rid of the person who was considered high up in the organisation or administration of the United States or Israeli interests in Australia. On your return to Karrachi Mukhtar gave you some money for expenses and you received the balance of the $8000 promised to you from Hambali in Malaysia on your return journey. You were told to recruit two white Australians, Muslims, who were to go to Afghanistan for training. One was to be trained in explosives, the other in weapons which could be used for sniping.

On your return to Perth and after again seeing Hambali in Malaysia and collecting the money you purchased a car and drove to Sydney. You also purchased a mobile phone on 1 June and the car a little later. On 6 June when you arrived in Sydney you took some still photographs of the Israeli Consulate in York Street. You borrowed a video camera. You and your son and a driver drove to Canberra and on 12 June you took a video of the

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Israeli Embassy and its surrounds. Your son said that during the taking of the video you made reference to a place being a good place to put a truck. Those words were not recorded on the video. However, he was not challenged in relation to that evidence in cross-examination and I accept what he had to say in that regard. On your return to Sydney you used the camera to take video footage of the Israeli Embassy. None of that footage which you took was ever forwarded through Hambali to Afghanistan; that is, neither the footage you took in Canberra nor the footage in Sydney was forwarded on through Hambali to Afghanistan.

When you returned to Australia there had been a falling out between you and the then leader of Jemaah Islamiya who wasn't happy with the role that you were undertaking which seemed to undercut his position. He told you to visit Malaysia to see Abu Bakar Bashir who was then the spiritual leader of Jemaah Islamiya. You went and were told by him to continue what you'd been told to do. In mid-August Abu Bakar Bashir again - he rang you and told you to stop whatever you were doing. Despite that, in September you conducted a search on the Internet for information in relation to igniters and after that you went out and purchased igniters from two different sources in the metropolitan area.

It's clear that when you entered into the conspiracy you were full of fervour for the Islamic cause and were prepared to assist the conspiracy by carrying out the surveillance of the Israeli Embassy in Canberra and setting up a cell in Australia of like-minded Australian Muslims to carry out the plan. This fervour is evidenced by the letter which you wrote to your son in which reference was made to:


'The greater sacrifice worthy of the highest reward from Allah that I am about to undertake. As Muslims we are obligated to perform jihad to uphold the laws of Allah. As we see today, the disbelievers are now out of control and believe that their ways based on inequality, arrogance, et cetera, are right. I hate them for that and need to learn more about how to combat them.'

That's the end of the quotation. I am aware of Mr Fraser's evidence about what your thoughts were when you went to

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Afghanistan, namely, in relation to your fears for your personal safety in fighting the Northern Alliance. However, that conversation had occurred before you had gone to see Mukhtar in Pakistan later in that same trip. You were also interviewed by the journalist and told her when you came back you were full of fervour. You also said when you came back from Afghanistan you were quite willing to go through 'with all this sort of stuff,' but that you had made a mistake in telling Abdul Rahim Ayoub and his brother what you were doing. Later when she asked you what was in your mind you said:

'When I initially arrived from overseas I thought this is great. I couldn't see anything wrong with it. It's not aimed at Australian but Israeli and American men that we're following in their country. They are casualties of war.'

You talked to her about your plan to set up an al-Qaeda operational cell which was to plan getting an Israeli or a United States target, getting that target and then disappearing for a few months and to do the same thing again. As to your willingness to be part of the plan to set off a bomb, you told her that you could justify the killing of Israelis because of what was happening in Palestine, it being pure evil. As I said, you purchased the car and drove to Perth and on 6 June you took the still photographs in the environs of the Israeli Consulate in York Street in Sydney.

On 12 December you went to Canberra. The car was driven by an Ethiopian Muslim and your son accompanied you. You borrowed the video camera, you took the video footage of the Israeli Embassy and its surrounds. In relation to the notes that you wrote out, those notes were found when the search warrant was conducted and it gave particulars of the directions and the building which were seen in the video and it was intended to send those along with the video to Hambali to Afghanistan although as I said, that never occurred.

When you returned to Australia the witness Fraser said that he remembered you clearly saying on numerous occasions that you had to take this action against Israelis to remind the world about the Palestinian crisis and that you had been told to do this by Osama bin Laden. If you say you did not have such a conversation with Osama bin Laden, then you clearly had such

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conversations with his close associates and delegates. Fraser also made reference to you saying that after one bombing the plan was to disappear and to come back and do another.

In your evidence you said that you returned to Australia and tried to recruit another Australia Muslim into the idea of Abu Hafs setting up a cell here in Australia. That person wasn't keen on the idea and his reaction may have caused you to commence or may have caused you to commence to have second thoughts in relation to your participation in the conspiracy.

As to the issue of withdrawal from the conspiracy, a federal agent gave evidence that he had been informed by ASIO that you had made contact with the Perth office in July 2000 and you also made contact on your return in August. However I don't accept those calls as being evidence necessarily of your withdrawal from the conspiracy nor - he was unable to obtain any information from the American consulate as to whether or not any calls had been made to them by you but they declined to provide an answer to his queries.

By this time in July when the calls were made, you had already carried out the overt acts pursuant to the agreement, one of which was your trip to Canberra to film the embassy. Of the 24 other overt acts which were carried out, all of them were supported by the evidence which was led and I don't intend to detail them all.

Your role in the conspiracy was to carry out the surveillance on the embassy in Canberra and to send the material to Afghanistan for further planning. You were to recruit members for an al-Qaeda cell in Australia. I don't believe your role was to be one of the persons who was to destroy or damage by means of explosive the embassy. However, your role was an important one and that you first you very willingly embraced it. Fortunately for Australia, the conspiracy did not achieve its end.

There are no other offences to be taken into account. Therefore, this is not said to be part of a course of conduct. There is not any evidence that the conspiracy to which you pleaded guilty was part of a course of conduct in relation to other conspiracies. The mention of what you did in relation to the consulate or your interest in Mr Gutnick during the trial were for the limited

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purpose of showing that you in fact entered into the conspiracy alleged.

That this conspiracy went no further than its initial planning stages and surveillance of the premises in the embassy in Canberra meant that nobody was injured and no property was damaged as a result of the conspiracy. Because of your evidence as to your contacts and activities, we now realise that Australia cannot assume that it's isolated from what happens in the rest of the world in relation to terrorist activities."

84 The 24 overt acts referred to were as follows:

"1. Karachi, Pakistan: Roche calls Mukhtar when he returns to Karachi from Afghanistan, meets with Mukhtar and accepts US$3,500 to $4,500 cash from him.

2. Kuala Lumpur, Malaysia: Roche purchases a ticket for a flight from Kuala Lumpur to Perth.

3. Kuala Lumpur, Malaysia: Roche calls Hambali from his hotel. Roche meets Hambali at the hotel, gives him the note from Mukhtar and discusses when the outstanding money promised will be available.

4. Indonesia: Roche purchases an Olympus camera.

5. Indonesia: Roche shaves his beard.

6. Roche calls Hambali from the Concorde Inn, Kuala Lumpur and Indonesia. Roche e-mails Mukhtar after returning to Australia.

7. Kuala Lumpur, Malaysia: Roche accepts the balance of the US$8,000 agreed to be paid to him being US$3,500 to $4,500 from an Indian or Pakistani man on behalf of Hambali.

8. Perth: Roche briefs Abdul Rahman Ayub and others on his activities overseas.

9. Roche records the overseas events in his Blue Notebook.

10. Roche buys a second hand Toyota Tercel 8BZ 352 from Need A Car, East Victoria Park.

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11. Roche drives from Perth to Sydney.

12. Roche borrows a video camera and buys a videocassette.

13. Roche photographs the Israeli Consulate, Sydney.

14. Roche travels from Sydney to Canberra. Roche asks Ahmed Garad to drive him to Canberra.

15. Roche films the Israeli Embassy, Canberra.

16. Roche films the Israeli Consulate, Sydney.

17. Roche records the route of his surveillance of the Israeli Embassy, Canberra.

18. Roche attempts to recruit John Bennett to participate in the conspiracy.

19. Roche travels to Indonesia at the request of Abu Bakar Bashir and meets with him.

20. Roche asks Ibrahim Fraser about the location of mines in Australia to obtain explosives.

21. Roche records the names of mines in Western Australia.

22. Roche purchases copperhead igniters from Stanbridges Hobby Store, Mt Lawley.

23. Roche searches and prints details of 'The Estes Igniter' from the Internet site Roche purchases Estes model rocket igniters from Ace Radio Controlled Models, Midland."

Matters affecting sentence

85 The Judge was required to have regard to the provisions of the Crimes Act 1914 (Cth), particularly s 16A and referred to a number of matters there enumerated. He noted the need for a strong deterrent sentence, both personal and for others of like mind who wished to commit acts of terrorism within Australia. The Judge considered that although Roche did not initiate the conspiracy, it was a serious conspiracy that did not just remain an unfulfilled agreement. The Judge noted a degree of co-operation with the running of the trial and the eventual plea of guilty,

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albeit very late, as an indication of some remorse. He said these matters should be taken into account. As to character and antecedents, the Judge noted that Roche was 50 years old. He recounted Roche's history and noted his conversion to Islam and the fact that his third wife has supported him and still does. The Judge accepted that Roche was a model prisoner and that his prospects of rehabilitation are good. The consequences of his involvement had been personally devastating and the likelihood of being a further vehicle for other conspirators was so slim as to be non-existent. As to withdrawal from the conspiracy the Judge said:

"There was no feeble attempt but a realistic conspiracy masterminded by people who were subsequently showing what they were capable of. It is accepted that you didn't initiate the plan to bomb the embassy and that that was the plan of persons that you saw in Afghanistan and Pakistan. However, once it was formed, you willingly went along with it. In light of your later actions, I'm unable to find that you had formed an intention to withdraw when you first rang the ASIO in July and in my view you didn't commence to withdraw until you were ordered to by Abu Bakar Bashir in August."

86 Finally, in fixing the term of imprisonment, the Judge indicated that a term of 12 years would have been appropriate but credit of 2 years was given for co-operation and eventual plea of guilty. Having regard to specific matters of promised future co-operation, outlined in a letter given to the Judge, the Judge reduced the sentence by a further 1 year to arrive at the 9 year period.

Co-operation

87 Each side complains about the Judge's treatment of co-operation and the discount he allowed from 12 to 10 years as being either excessive or inadequate.

88 In sentencing submissions, counsel for Roche described the information which he has provided as very valuable. He said:

"…the quality of the information that Mr Roche provided to ASIO and the Australian Federal Police was very high and enormously valuable. …Agent Duthie … described it as unique information."

89 The submission was made that the information led to the arrests of Hambali and Mukhtar. This latter submission was rejected by the

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prosecution as being without support in the materials. The prosecution did not specifically challenge the other assertions about the quality of the information. The Judge did not make any specific findings about the extent of the co-operation but gave credit for it, and the eventual plea of guilty, by reducing the indicative sentence by 2 years.

90 A further 1 year was taken off the sentence as a result of promised future co-operation evidenced by a letter to the Judge from the authorities. The Judge was entitled to give that letter such weight as he thought it deserved. If Roche fails to live up to the promise, it is open for the prosecution to apply to the Judge to have 1 year restored to the sentence.

91 Although the prosecution did not challenge all aspects of Roche's plea in respect of co-operation, it did challenge a substantial conclusion. The prosecution did not verify the assistance given (as to which see Radebe (2001) 122 A Crim R 559 at [36]) except to the extent that the co-operation appears from answers given by witnesses in the course of evidence and from the records of interview.

92 Even, perhaps especially, for offences which require denunciatory sentences, the co-operation by an offender with the authorities must always be recognised in a reduction in sentence to some degree. This is for two reasons. First, co-operation is a tangible expression of remorse and a desire to put things right. Secondly, a reward for co-operation is utilitarian. It may encourage others to assist the police to unravel conspiracies and other crimes: Duffy (1996) 85 A Crim R 456; Gallagher v The Queen (1991) 23 NSWLR 220.

93 The balance between these various factors is difficult. I am not persuaded that the Judge erred in either allowing too little or too much reduction for co-operation.

The relevance of conspiracy as the offence

94 The prosecution's submission in essence is that this conspiracy is one of the worst of its type. Parliament prescribes the same penalty for conspiring to commit the offence as for the actual commission of the offence. There is a need to impose a sentence of general deterrence. In this latter respect, the prosecution acknowledges that a heavy sentence is unlikely to deter fanatics. However, the prosecution submits that deterrence is necessary for persons in the position of Roche who may be unwilling themselves to die for the cause but are prepared to take steps to assist others in carrying out the agreement.

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95 As to the matter being one of the worst of its type, this Court is bound to follow the principle laid down by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 478:

"…the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category."

96 Conspiracy is an inchoate offence. Although the penalty is the same for commission of the principal offence, nevertheless in assessing the gravity of particular facts, the focus must be on what was actually done, the intention with which it was done, and the harm that occurred. The fact that the conspiracy, if successful, might have endangered the lives of many internationally protected persons does not disguise the fact that it did not do so. Moreover, Roche was not charged with conspiracy to murder: Crimes (Internationally Protected Persons) Act 1976 s 8(1), so he must receive a punishment commensurate with an intention to endanger life by means of explosion, not an intention to kill: R v De Simoni (1981) 147 CLR 383 per Gibbs J at 389. In Savvas v The Queen (1995) 183 CLR 1 at 8 the High Court cited with approval a portion of the judgment of Kirby P when he said:

"The key to a principled approach to sentencing a person such as the applicant who has been convicted by a jury of conspiracy is to ensure that he is punished solely for the offence of which he stands convicted. This is the criminal agreement which constitutes the conspiracy and not the substantive offence.": R v Savvas [No 2] 1991 58 A Crim R 185.

97 In the present case there was an active conspiracy for a period of months during which the overt acts were performed. It may be that Roche had some equivocation about continuance of the conspiracy. For example, he appears to have telephoned ASIO in July 2000 in a manner which would suggest that he wished to discontinue involvement in the conspiracy. On the other hand, after being directed to desist by Abu Bakar Bashir, he nevertheless continued on with the purchase of igniters. At all events, Roche's involvement in the conspiracy ceased by September 2000 and there is no evidence that he took any further steps to facilitate

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the agreement. The surveillance video, for instance, was found following a search of his premises two years later. It had not been sent on to other conspirators.

The relevance of the Crimes Act s 16A

98 The Judge was required to sentence Roche having regard to the matters set out in the Crimes Act (Cth) s 16A. Clearly the Judge did have in mind the matters enumerated under s 16A(2). The Judge imposed a sentence which he considered would act as a general deterrent. The prosecution in this appeal demands a sentence of general deterrence. It is interesting that general deterrence is not enumerated under s 16A(2) although personal deterrence is: s 16A(2)(j). Under common law, general deterrence is specifically recognised as a proper principle of sentencing. Section 16A(2) does not purport to be prescriptive and I infer that this Court should apply general common law principles with the result that general deterrence is an appropriate factor to be taken into account.

Crimes of terrorism

99 The prosecution cited R v O'hAdhmaill [1996] Crim LR 509 in support of its general submission as to manifest inadequacy. This is the only case in relation to sentencing for conspiracy to cause explosions to which counsel made reference in the appeal. However, British Courts have long had to deal with the consequences of terrorism and there are many cases readily available in the published reports. No case was cited to the Judge. The fact that the Judge was not provided with this assistance means that an error in sentencing discretion is not attributable solely to him. In appropriate cases, this lack of assistance might be decisive against a prosecution appeal.

100 Caution must always be exercised in accepting the precedential value of sentences or sentencing trends from jurisdictions other than Australia. However, in circumstances where this is said to be the first conviction in Australia for terrorist activity, the jurisprudence from countries which have had to deal with crimes of terrorism is useful. This is so even though the actual tariff, or range of sentences, commonly imposed for such crimes may be less helpful due to different statutory regimes.

R v Turner (1975) 61 Cr.App.R. 67

101 The appellant and others were convicted of offences, some of which were carried out with considerable violence and netted a great deal of money.

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102 In dealing with an appeal against sentence, Lawton LJ, reading the judgment of the Court, noted the difficult sentencing problem in respect of serious crimes when the only sentence which can be imposed for the most serious crime, that of murder, is life imprisonment. He noted the actual time in which a person convicted of murder might have a reasonable chance of being let out before posing the question: "…what is the appropriate sentence for someone who has been convicted of a lesser offence than murder?"

103 He answered the question he posed as follows:

"Ought it to be any more than the sentence which is likely to be served by someone convicted of murder? It is that aspect of this problem which has concerned this Court very much when dealing with these seventeen appeals, because it seems to us that it is not in the public interest that even for grave crimes, sentences should be passed which do not correlate sensibly and fairly with the time in prison which is likely to be served by somebody who has committed murder in circumstances in which there were no mitigating circumstances."

104 Lawton J then differentiated between crimes of gravity that have common occurrence and crimes which might be regarded as abnormal. He described abnormal crimes in this way at 91:

"Into the first category fall such crimes as the Great Train Robbery, bad cases of espionage, cases of horrid violence such as occurred in the case of Richardson and Others (1967) 51 Cr.App.R. 381, known as the 'Torture Case'. We are running into an era when the courts are finding themselves having to deal with bomb outrages, acts of political terrorism and possibly in the future acts of political kidnapping. The courts must have some range of penalties to deal with those abnormal crimes."

R v Byrne (1975) 62 Cr.App.R. 159

105 Byrne and others were convicted of conspiracy to cause explosions by means of explosive substances. Byrne received 18 years' imprisonment. Four appellants were members of a gang of terrorists in the Manchester area who were engaged over a period of months in planting bombs. The maximum penalty for the offence was a term of imprisonment not exceeding 20 years. Lawton LJ, again delivering judgment for the Court, said at 163:

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"It is important to notice that the conspiracy which is created an offence can have two objectives. One is to endanger life and the other is to cause injury to property. Clearly conduct which is likely to endanger life is more grave than conduct which is likely to cause serious injury to property. In any particular case it may well be that the conduct is likely to do both; in other cases conduct, although it is likely to do both, is more likely to endanger life than to cause serious injury to property or vice versa.

Following the general sentencing principle that the maximum sentence provided for by statute should be reserved for the most serious type of case, we ask ourselves what is the most serious type of case which is likely to arise under this section?

The answer seems to us to be the type of explosive device which has, as its primary purpose (and I stress primary) to endanger life. It is unnecessary for us to specify what kind of explosive device we have in mind. Explosive devices differ considerably. A device which is primarily designed to endanger life may well attract the maximum sentence. On the other hand, if the primary purpose of the device is not to endanger life but to cause serious injury to property then, in our judgment, a sentence less than the maximum may well be appropriate.

There are, we think, good, sound, practical reasons for drawing the distinction. The first is that endangering life is more serious anyway than causing serious injury to property. Secondly the deterrent aspect of sentences for using or conspiring to use explosive devices designed primarily to endanger life should be made clear. This can only be done if a distinction is drawn between sentences for placing such bombs and those for placing bombs primarily designed for causing injury to property."

106 Applying those principles, the Court reduced the sentences to terms of 14 years' imprisonment on the basis that the facts displayed that the primary purpose was to damage property although there was a likelihood of endangering life.

107 The Court also noted that the degree of complicity is of marginal importance because those who join in a conspiracy of the kind alleged do so knowing the object of the conspiracy. They knew certain results were intended and they joined to help bring them about.

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R v O'hAdhmaill [1996] Crim LR 509

108 O'hAdhmaill was convicted of conspiring for a period of a little over a year to cause an explosion. He was sentenced to 25 years' imprisonment. Other counts of possessing an explosive substance with intent and possessing a firearm with intent to endanger life were left on the file, an English custom somewhat similar to taking offences into account. The appellant was involved in importing a motor car from Ireland which he drove to a motor accessories shop and was in the process of dismantling the rear seats when arrested. Concealed inside the vehicle's boot and seat cavities were 17 packages of Semtex, 17 TPU's, 17 detonators, a gun and a quantity of ammunition. Inside the appellant's wallet were a number of cigarette papers, some of which bore a code which enabled phone calls and meetings to be arranged secretly. Others contained lists of possible military, political and strategic targets. There was other evidence to suggest that the appellant was intending to conceal the explosives. The alleged targets were to include military bases, Members of Parliament and strategic installations. In relation to the sentence, counsel for the appellant conceded that the sentence of 25 years was "a tariff sentence" which was in line with other sentences passed upon those who conspired to cause explosions in the supposed interest of some political cause.

109 The Court of Appeal made mention of R v Mullin 12 Crim LR (S) 754. Mullin was convicted of a similar offence to that of O'hAdhmaill. No explosions were in fact caused. The cache of explosives was larger than in the present case. A sentence of 30 years for Mullin was upheld. In dismissing O'hAdhmaill's appeal against sentence, the Court of Appeal noted that there was a settled intention to cause explosions which puts the offence very high on the scale of gravity. Moreover, it was clear from the evidence that the appellant occupied a prominent position. He was holding down a senior academic post which afforded him good cover and he was entrusted not only with the arsenal of explosives but the list of potential targets from which to choose and a code for communicating with other members of the conspiracy.

R v Martin (1999) 1 Cr.App.R.(S) 477

110 The appellant was convicted of conspiring with others to cause, by explosive substances, explosions of a nature likely to endanger life or cause serious injury to property. In other words, he was convicted of an offence with strong similarities to the present case. He was sentenced to a term of 35 years' imprisonment. The maximum penalty for the offence was one of life imprisonment.

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111 In summary, he and five others were members of an active service unit of PIRA who planned to cause explosions at the six main external sub-stations feeding electricity to London and parts of south-east of England from the national grid. In pursuance of the conspiracy they took a number of steps such as acquiring premises and vehicles, carrying out research and planning, reconnoitring five of the sub-stations, purchasing equipment, making 37 long delay time and power units for the 37 bombs to be used at the sub-stations, buying and dismantling ladders for ease of concealment and constructing wooden blocks with which to reassemble the ladders. They had false identities, and money was supplied by PIRA, to finance the operation. At the time of arrest the time and power units were being tested and the plan was about to be put into effect.

112 Although it was accepted that the primary purpose of the conspiracy was to cause damage to property, the Court of Appeal approved the sentencing basis of the Judge who said "You were reckless as to the number of people who might be killed or maimed as a consequence of your planned bombings". The Court of Appeal issued a guideline judgment. Lord Bingham CJ, in delivering the judgment of the Court said:

"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."

113 The Court then reviewed a series of sentences concluding that sentencing in cases involving acts done or conspiracies to cause terrorist explosions appeared to be in the range of 20 to 35 years. Lord Bingham continued at 483:

"The appropriate sentence for any given offence will plainly depend on a large number of factors, which will include the likely result of any explosion or the target of any conspiracy, the role of the individual defendant, the nature, size and likely effect of any explosive device, the motivation of the defendant and, where death, injury, or damage has been caused, the nature and extent of the death, injury and damage in question."

114 The Court noted that when imposing sentences for conspiracies of this sort, the courts should remind themselves of the term actually served for murder, particularly murder in its more aggravated forms, but continued:

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"…But there can be no precise equivalence, and conduct threatening the democratic government and the security of the state, and the daily life and livelihoods of millions of people, has a seriousness all of its own."

115 In the event, the Court reduced the sentence of 35 years to one of 28 years' imprisonment because "…some weight must be given to the fact that death and injury, although a likely by-product of implementation of the conspirators' plan, was not its primary object".

The Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents

116 There is a further matter which is appropriate to mention. The conspiracy targeted the Israeli Embassy. Members of the Embassy staff are entitled to diplomatic protection afforded by the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, done at New York on 14 December 1973.

117 The Convention entered into force for Australia on 20 July 1977 and for Israel on 30 August 1980. Neither State has denounced the Convention.

118 As part of its obligations, Australia enacted the Crimes (Internationally Protected Persons) Act 1976. It is this Act which creates the substantive offence which Roche conspired to commit.

The principles which apply to this appeal

119 I now set out the principles which I would adopt and apply to this appeal. They are, in part, extracted from the cases to which reference has been made. They also take into account, as they must, the provisions of the Crimes Act s 16A and the purpose and objects of the Crimes (Internationally Protected Persons) Act 1976:

• A terrorism offence is an abnormal crime requiring consideration of a range of penalties which do not necessarily correlate with normal, though grave, crimes.

• Possession of an explosive device, which has as its primary purpose the endangerment of life, is the most serious type of offence for which is reserved the maximum penalty provided by statute.

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• Conduct calculated to endanger life is more grave than conduct which is intended or likely to cause serious injury to property.

• Where the primary purpose of an explosive device is not to endanger life but to cause serious injury to property then a sentence less than the maximum may be appropriate.

• A settled intention to cause an explosion puts an offence high on the scale of gravity.

• For the most serious terrorist offences the sentence must be of a severity appropriate to the circumstances. The object of the sentence is to punish, deter and incapacitate.

• An offence which threatens the democratic government and security of the State has a seriousness all of its own.

• An offence which threatens the daily life and livelihood of millions of people has a seriousness all of its own.

• An offence which threatens diplomats and others to whom Australia owes protection has a seriousness all of its own.

• It is always necessary to look at the precise nature and circumstances of the offence.

• It is necessary to punish for the criminal agreement which constitutes the conspiracy, not the substantive offence.

• The degree of complicity in a conspiracy to use explosives against persons or property is of marginal importance.

• The matters summarised in the Crimes Act s 16A(1) and (2), including rehabilitation, must be taken into account for all offences including abnormal offences. The matters must be given appropriate weight.

Application of the principles to the facts

120 At the risk of repetition, I now restate, though in short form, the salient facts to which the principles I have just outlined should be applied:

• The conspiracy was entered into for political reasons.

• Roche intended to destroy or damage property.

• He further intended to endanger the lives of people by that destruction or damage.

• The damage or destruction was to be caused by explosion.

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• Between March and September 2000 Roche was actively engaged in the conspiracy.

• He received money to further the conspiracy.

• He conducted photographic surveillance of the Israeli Consulate in Sydney.

• He conducted video surveillance of the Israeli Embassy in Canberra and Sydney.

• He attempted to recruit others into the conspiracy.

• He took preliminary steps for the acquisition of explosives.

• He purchased igniters.

• The conspiracy did not progress to the possession of explosives.

• Roche did not pass on the results of his surveillance to other conspirators.

• He was ambivalent for a time as to his further involvement in the conspiracy and eventually withdrew.

• Lives were not in fact endangered.

• Roche appears to pose no further risk.

• The prospects of rehabilitation are excellent.

121 When those facts are reviewed against the principles I have set out, I have reached the conclusion that the sentence imposed by the Judge was manifestly inadequate because it failed to take sufficient account of the abnormal nature of the crime, the intention with which the conspiracy was entered into and the threat to the State of such a conspiracy. The sentence was insufficiently grave to mark denunciation of the conduct and insufficient to be a general deterrent. It failed to take account of the principles I have outlined to such a degree that the sentence exhibits manifest error. Despite the prosecution's inaction in failing to provide the Judge with reference to authority, to which he was entitled, I conclude the appeal by the prosecution should nevertheless be allowed and the appeal by Roche dismissed.

Re-sentence

122 It is necessary to re-sentence Roche. In doing so I take account of the relevant matters set out in s 16A(2) of the Crimes Act noting his antecedents and the circumstances of his family. Although the plea of guilty was entered into both late, and in circumstances where it might be regarded as an inevitable plea, I nevertheless think that some slight credit

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should be given to it. On the question of past co-operation, I would not depart from the Judge's assessment of the value, being 2 years. All the matters I have enumerated, together with any other matters which the Judge mentioned, have the effect of reducing the sentence from one which would apply if there were no matters properly to be taken into account by way of mitigation under the Crimes Act s 16A(2).

123 In selecting an appropriate head sentence it is also proper to bear in mind that this is a prosecution appeal. The principle of double jeopardy inherent in a prosecution appeal means that the Court may need to modify the ultimate result towards the more lenient end of the range of appropriate sentences: Leucus (1995) 78 A Crim R 40 at 52.

124 Bearing in mind all these factors, and giving weight to the last mentioned matter, I would have imposed a sentence of 16 years but it is necessary to reduce that term by 1 year to take account of future co-operation: (Crimes Act s 21E(1)(a)).

125 I therefore would impose a head sentence of 15 years.

The minimum term

126 It is not suggested that the Judge was wrong to order parole. The trial Judge set a minimum term of one-half the maximum term.

127 The fact that there is no longer a minimum term before parole under the Crimes Act is happenstance. The scheme of the Crimes Act is to pick up State parole provisions to ensure that Commonwealth offenders serving sentences next to State offenders in State prisons are treated similarly.

128 In 2003 the Sentencing Legislation Amendment and Repeal Act (WA), among other things, repealed the Sentencing Act (WA) s 95. Consequently, in Western Australia, there is no law of the State providing for the revision or reduction of State offences to make the provisions of the Crimes Act s19AA applicable. As a result, there is no longer any upper limit to the length of a non-parole period set under the Crimes Act. It is submitted by the prosecution that the Judge erred in fixing a non-parole term 50 per cent of the head sentence. It is contended that the non-parole period should approach the head sentence.

129 In Bugmy v The Queen (1991) 169 CLR 525 the majority (Dawson, Toohey and Gaudron JJ) quoted with approval the decision in Deakin v The Queen (1984) 58 ALJR 367 as follows:

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"The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence."

130 In this case, the denunciation of the conduct must be reflected in both the head term and the minimum term. It should be remembered, however, the minimum term is not the minimum sentence; it is the portion of the sentence to be served within a prison before the Attorney-General directs that the person be released on parole. The person released is not free. They are properly to be regarded as serving a portion of the sentence, up to 5 years, in the community. For this reason, although the factors which relate to the seriousness of the crime remain relevant in setting a non-parole period, greater weight can be given in appropriate circumstances to the need, or absence of need, for personal deterrence and the rehabilitation of the offender.

131 Taking into account again those matters, together with the matters I have earlier outlined in setting the head sentence, I conclude that an appropriate period before parole is one of 9 years.

Proposed orders

132 I would allow the appeal in appeal number CCA 85 of 2004 and dismiss the appeal in CCA 91 of 2004.

133 I would set aside the sentence of 9 years' imprisonment with a minimum period of 4½ years before parole and substitute in lieu a period of 15 years' imprisonment which acknowledges a period of 1 year reduction for future assistance. I would set a non-parole period of 9 years and direct that the sentence take effect from 18 November 2002.