R v Sharrouf

[2009] NSWSC 1002

CITATION:	Regina (C'Wealth) v Sharrouf [2009] NSWSC 1002
HEARING DATE(S):	03/08/09; 23/09/09
JUDGMENT DATE :	24 September 2009
JUDGMENT OF:	Whealy J at 1
DECISION:	Khaled Sharrouf, in relation to the charge in the indictment to whichhave pleaded guilty, I sentence you to a term of imprisonment of 5 years and 3 months. This sentence is to commence on 8 November 2005 and is to expire on 7 February 2011. I fix a non-parole period in respect of the sentence of 3 years and 11 months and 7 days commencing on 8 November 2005 and expiring on 14 October 2009.
CATCHWORDS:	CRIMINAL LAW - Sentence - terrorism offence - need for punishment, deterrence and protection of the community - qualification where mental illness is involved - schrizophenia - discount for plea where accused becomes fit for trial.
LEGISLATION CITED:	Commonwealth Criminal Code Act Crimes Act 1914 (Cth) NSW Crimes Act
CASES CITED:	El Karhani (1990) 21 NSWLR 370 Faheem Khalid Lodhi v Regina [2007] NSWCCA 360 at [81] per Spigelman CJ Johnson v The Queen [2004] HCA 15; [2004] 78 ALJR 616 at [15] R v Cameron [2002] 209 CLR 339 at [11] R v Champion 1992 (64 A Crim R 244) R v Henry (1999) 46 NSWLR 346 at para 241 R v Israil [2002] NSWCCA 255 per Spigelman CJ at (21-23) R v Letteri NSWCCA 18 March 1993 as adopted in R v Engert (1995) 84 A Crim R 67 R v Martin (1999) 1 Cr App R (477 at 480) R v Matthews (2004) NSWCCA 112 per Wood CJ at CL (at 20-24) R v Paull (1990) 20 NSWLR 47 R v Touma NSWSC 24 October 2008 Scognamiglio (1991) 56 A Crim R 81 Tyler v R; R v Chalmers [2007] NSWCCA 247 at (110-111)
PARTIES:	Regina (C'Wealth) v Khaled Sharrouf
FILE NUMBER(S):	SC 2007/2396001
COUNSEL:	G. Bellew SC; S. McNaughton - Crown W Brewer; M Pickin - Offender
SOLICITORS:	C'Wealth DPP - Crown Matouk Joyner Lawyers - Offender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: THURSDAY 24 September 2009

2007/2396001 - Regina v Khaled SHARROUF

SENTENCE

1 HIS HONOUR: On 8 November 2005 Khaled Sharrouf ("the offender") was arrested and charged with offences falling under pt 5.3 of the Commonwealth Criminal Code Act. The offender was remanded in custody and has remained in custody since that time. He was committed for trial on 30 April 2007. On 31 May 2007, he was arraigned in the New South Wales Supreme Court upon a single count of conspiracy to do acts in preparation for a terrorist act or acts. This offence carries with it a maximum penalty of life imprisonment. A plea of not guilty was entered.

2 The trial of the accused and eight other men was listed to commence on 25 February 2008. In November 2007, however, a notice of motion was filed on behalf of the offender. This raised the issue of his unfitness to be tried. The material in support of the application, as it was later to appear, cast serious doubt on the offender's capacity to comprehend and the charge to instruct his lawyers in relation to the earlier processes I have mentioned.

3 On 25 June 2008, the offender was found unfit to be tried, although it was the view of the Court that it was likely that the offender would, with appropriate treatment, be fit for trial within the ensuing twelve month period. On 1 July 2008, as a consequence of the finding as to unfitness, the Court made an order that the offender receive a separate trial from the other men.

4 In early 2009, the offender was examined anew by his forensic psychiatrist, Dr Nielssen, who determined that the offender was now fit for trial. This brought on a round of negotiations between the offender's legal representatives and the Crown. These negotiations resulted in the presentation of a fresh indictment. On 3 August 2009, the offender pleaded guilty to a fresh charge, and the matter of that charge was then stood over for sentence.

5 The offence to which the offender has now pleaded guilty is that on or about 7 October 2005 at Sydney in the State of New South Wales, he did possess a thing, namely six clocks and one hundred and forty batteries, which were connected with the preparation for a terrorist act or acts knowing of that connection. This offence is prescribed by s 101.4(1) of the Commonwealth Criminal Code. It carries a maximum penalty of imprisonment for fifteen years. The legislation provides that a person commits an offence under subs (1) of 101.4 even if a terrorist act does not occur and notwithstanding that the thing in question is not connected with, nor engaged in, a specific terrorist act. As I understand it, in view of the offender's plea to this fresh charge, the Commonwealth Director of Public Prosecutions will not proceed against him on the more serious conspiracy charge.

6 Exhibit “A” is an agreed statement of facts tendered by consent in the sentencing hearing. The fact that the parties have agreed to the relevant facts is, of course, very helpful to the Court, although it is necessary to note that the Court is specifically limited to those facts and cannot look to any matters outside of them. The statement of facts is in the following form:-

Agreed Statement of Facts

7 At the time of commission of the offence, the offender was a devout Muslim and held certain fundamental beliefs in relation to the interpretation of his faith. Those beliefs included the following:

(a) that Islam throughout the world was under attack and there was a religious obligation to come to the defence of Islam and other Muslims.
(b) that jihad was the primary means by which this religious obligation should be fulfilled.
(c) that a significant and legitimate aspect of the fulfilment of this obligation was violent jihad which involved the application of force and violence including, in certain circumstances, the killing of infidels or kufr, that is, persons who do not have the same fundamentalist beliefs.

8 The views held by the offender which form the background to the offence to which he has pleaded guilty are evidenced by a number of factors, including his possession of:

(a) videos, still images and documents which can properly be described as instructional;
(b) a video containing instructions as to how to construct and detonate an explosive device;
(c) a file depicting various violent scenes from the Iraq War;
(d) another file depicting the ambush of US soldiers;
(e) various files containing material relating to violent jihad;
(f) a Nokia mobile telephone with an American flag bearing the date 9/11 on one side and a picture of Osama bin Laden on the other; and
(g) documents, either in the form of pamphlets or printouts from the Internet in relation to undertaking violent jihad.

9 The material set out above does not constitute the totality of such items found in the offender's possession. Those items are fully set out in Annexure A to the statement.

10 The nature and extent of the offender's views are also evidenced by statements made by him to others. One example is a conversation he had with Abdul Nacer Benbrika, a Muslim cleric based in Melbourne on 10 January 2005, which was partly in the following terms:-

“ SHARROUF: Is it true that if you want to travel to make immigration, there's a 90% chance of getting caught, it is still a duty to go. I don't know, maybe I misunderstand, but from Abdullah Azzam I think it says maybe, this is the way that I understood it, that if you're gonna get - if you think you're gonna get caught it is still an obligation, I mean it is still from Allah that you do your duty what's on you, it doesn't matter if you get caught.
BENBRIKA: That's it. Why, because you belong to Allah, true or no?
SHARROUF: Yeah.”

11 Further, on 5 August 2005, a conversation took place between the offender and Mazen Touma, which was recorded by way of listening device. On that occasion, in the context of the discussion about the role played by the United States of America in the Middle East, the offender made reference to the fact that Australia had sent troops to East Timor, the Philippines, Afghanistan and Israel and said:-

“Forget Australia law…Australia law get stuffed, finished…give us all back our passports and we leave. I swear to God I'll be the first to get out of this stuffed up country. Sons of dogs…listen here, I swear I'd rather be locked up and tortured and everything in a Muslim country rather than be locked up one day in this country."

12 On 7 October 2005, the offender, in the company of two other persons, attended the vicinity of the Big W department store in Chullora. All three were seen on CCTV to enter the store premises. A short time after entering, the offender was stopped at the cash register by security staff and found in possession of six clocks and a quantity of at least one hundred and forty batteries made up of

(a) eighty-two AA size batteries of which sixty-four were titanium, twelve were lithium, two were rechargeable, four were standard;
(b) fifty-four AAA size batteries of which eighteen, two of which were rechargeable, were Duracell brand, that is longer lasting than standard batteries, thirty-six, twelve of which were titanium, twelve of which were lithium and twelve of which were standard Energizer brand; and
(c) four D size batteries.

13 The clocks and batteries were secreted in empty potato chip boxes which themselves had been taken from the shelves of the store premises. The offender left the store premises in possession of the clocks and batteries, but was apprehended by security staff a short time later. The offender subsequently pleaded guilty to charges under the New South Wales Crimes Act in respect of the theft and was sentenced to a period of 14 days imprisonment, which was served whilst he was in custody bail refused following his arrest in November 2005.

14 Each of the six clocks in the possession of the offender was an Equity brand digital alarm clock powered by a single AAA sized battery. Each possessed a mechanism where a designated alarm time could be set and, upon that time being reached, a volt is delivered from the battery to a small buzzer inside the clock, which would cause the buzzer to activate and emanate a beeping sound. The level of current delivered to the buzzer to cause it to sound in the manner described above was a maximum of 280 micro amps, a level which would not be sufficient to fire an electronic detonator. There are, however, a number of different electronic circuits which could have been added to the level of current generated by the clock so as to create sufficient charge to fire such a detonator.

15 The more common of such circuits utilises a silicone controlled rectifier commonly known as SCR, along with a number of small resistors. In simple terms, an SCR is an electronic relay or switch which is capable of being activated by a weak level of current, such as that produced by a digital alarm clock of the type found in the possession of the offender. Upon activation, the SCR operates to allow a larger current to pass through it and the level of output generated by the SCR in this way is sufficient to fire a commercially available electronic detonator. The alarm clock assists in facilitating the operation of the detonator by, inter alia, allowing for a designated time delay of up to 24 hours.

16 The construction of an electronic circuit of the type described above using an SCR and resistors would require a power supply of at least 1.44 volts. A single AA sized battery - 82 of which were in the possession of the offender at the time of his arrest - is capable of generating that level of supply. The SCR itself is readily available from any commercial electronics outlet at a cost of less than $2, while the small resistors can be purchased from the same outlets for a few cents each.

17 The type of explosive which could be used and detonated by an explosive device constructed with an SCR circuit and alarm clock include TATP, HMTD and DADP. All three of these explosives are classed as primary high explosives and are sensitive to, inter alia, spark or heat. Their explosive effects are capable of causing death, serious injury and destruction of or damage to property, although the scale of such effects is necessarily dependent upon a number of variables, including the type, quantity and quality of explosives used.

18 The offender, by his plea, has admitted that he possessed the batteries and clocks knowing of their connection with the preparation for a terrorist act or acts. Quite apart from the fact of his plea, the offender's knowledge in that regard, it is agreed, is to be inferred from:

(a) The fundamental nature of the material which was in his possession;
(b) His generally extremist views; and
(c) His possession of the material in annexure A and, in particular, his possession of a video detailing how to construct and detonate an explosive device.

Extremist and Instructional Material

19 Accompanying the statement of facts was a document described therein as annexure A. This contains a list of the electronic extremist material in the possession of the offender at his home on 8 November 2005. It includes, at page 51, a CD containing a video of instructions on the manufacture and detonation of an improvised explosive device. The material includes images, documents, videos and audio files. Generally speaking, they are all of an extremist nature and some are especially confronting. They include, for example, videos of hostages being executed by beheading or shooting.

20 There is a plethora of material exalting Muslims to come to the aid of Muslims overseas and to repel the “invaders” of their countries. Some of the material exalts and praises the death and destruction of innocent civilians in western countries as a means to aid in the repulsion of foreign invasion in Muslim lands.

The offender’s background

21 I turn, then, to describe the offender's background and his subjective circumstances. The offender is a son of Lebanese parents. He was born in Australia in February 1981. His relationship with his father in his early and teen years was a difficult one, involving some considerable violence shown by his father towards the offender on occasions. The offender's schooling was limited, but unremarkable. He barely made it to Year 9, but was then expelled from school for violent conduct at that time. The offender was soon drawn into bad company. He has a reasonably long history of minor criminality in the Children's Court between 1995 and 1998. As an adult he was dealt with for a string of minor offences in the Local Court system, but nothing that is relied upon in this sentencing procedure as of any importance. This bout of adolescent criminality, essentially of a minor kind, was accompanied by the offender's exposure to drugs. Of particular significance was his sustained use of amphetamines, LSD and ecstasy. This exposure is likely to have been a significant factor in the emergence of his chronic mental illness, schizophrenia. The ingestion of these types of drugs around the age of 17 and 18 led the offender to experience the onset of voices, hallucinations and delusions. It appears, however, he has not taken any kind of illicit drug since the onset of his mental illness.

22 The offender worked occasionally as a labourer in the building industry, but generally he has eked out an existence by dint of the disability support pension. That was certainly the position and had been for some time, prior to his arrest in November 2005. The offender was married some years ago in Islamic law to Tara Nettleton, a woman of Anglo Australian background, who had converted to Islam. They have four young children. The offender was diagnosed at a relatively early stage with chronic schizophrenia.

The offender’s mental illness

23 As this is a significant factor in a number of aspects of this sentencing procedure, I will turn now to outline a brief history of his illness. Following the issue of the offender's fitness to stand trial being raised in the latter part of 2007, the relevant clinical records detailing his treatment prior to his arrest were produced under subpoena from his treating doctors. Those records confirmed that the offender had been diagnosed with depression by his general practitioner on 2 October 1999. This diagnosis was subsequently confirmed on 15 October 2000. A little over 12 months later, on 23 October 2001, he was diagnosed with a depressive anxiety disorder. The same records also established that on 9 August 2002 the offender was diagnosed by his general practitioner, Dr Al Sayed, with schizophrenia. He was then placed under the care of a consultant psychiatrist, Dr Ali. After his initial examination of the offender, Dr Ali reported to Dr Al Sayed in the following terms:

“The main diagnosis appears to be polydrug abuse and psychosis which is either a drug induced psychosis, or could be a schizophrenic illness.”

24 The offender continued under the care of Dr Ali from late 2002, until late October 2005. The clinical records produced under subpoena by Dr Ali reflect a somewhat haphazard course of treatment during that period of time. However, there is no evidence that the offender's schizophrenic condition, which had been diagnosed in August 2002, was in remission at any stage between that time and the date of his arrest on 8 November 2005. On the other hand, there is evidence that during the period, the offender was prescribed with Risperdal, Luvox, Zyprexa and Avanza. These are medications that are used to treat schizophrenia and are used in the treatment of depression and like conditions.

25 The material produced on subpoena also established that during that same period there were, in addition to the diagnosis of schizophrenia, further diagnoses of depressive anxiety disorder and major depression, for which he was prescribed Tramol, an analgesic medication used for severe pain.

26 The clinical notes produced by Dr Ali under subpoena contained little detail and there was little in the way of reports from him to the offender's general practitioner during the period of treatment. However, included in the material produced was a report of Dr Ali dated 12 August 2004. This was provided in association with the offender's appearance before the Burwood Local Court on driving charges. Dr Ali observed:

“Mr Sharrouf has a history of psychotic symptoms over the past few years and has been diagnosed to be suffering from a schizophrenic illness. His main psychotic symptoms have included: auditory hallucinations, some delusional ideas of a persecutory nature, and occasional bizarre behaviour. The onset of symptoms was several years ago and they have been fluctuating in intensity. He has been on antipsychotic medication for some time and has also had brief depressive symptoms which are part of the symptomatology of schizophrenia. I note that he has done irrational things in the past, but sometimes he is impulsive and he does things and is not able to appreciate the consequences of his actions."

27 Further, an additional report was produced under subpoena prepared in association with the same Local Court proceedings by Natasha Langovski. Miss Langovski's conclusions, following her examination of the offender, included the following:-

“Based on the information provided by Khaled during this assessment, he presents with symptoms of psychotic illness. This is in line with the findings of his treating psychiatrist, Dr Ali, who is treating him for schizophrenic illness. His illness is evident in symptoms such as distorted reality, perceptional disturbances, auditory and visual hallucinations and the presence of paranoia. In addition to this, he also presents with symptoms of depression. In relation to the impact on his general functioning, his apparent cognitive impairment is of concern. Cognitive impairment is a devastating symptom of psychotic illness with wide-reaching consequences; impaired memory, difficulty in thinking logically and difficulty in solving even the most straightforward problems can have an enormous impact on everyday living. As previously mentioned, a noted feature of psychotic illness is the presence of impaired insight. With such an illness, a diminished ability to think logically and sequentially directly affects one's ability to make rational, appropriate judgments.”

28 There is one further report which documents the offender's mental condition at or about the time of commission of the offence, namely, the report of Dr Nielssen dated 22 September 2005. This report had been provided for medico-legal purposes at the request of the offender's then solicitor for use in conjunction with another appearance by the offender before a Local Court on a charge of possession of a knife in a public place. It included the following observations:-

“Mr Sharrouf was unable to say why he was taking the tablets or the name of the illness for which he was receiving treatment. However, he agreed that he had experienced hallucinations of voices which he said began around the age of 18. He said that he attributed the voices to people outside the house and had often gone outside the house to look for the sources of the voices. Mr Sharrouf said he did not know who might be behind the voices.”

29 Having examined the offender's mental state Dr Nielssen continued:-

“His affect was lacking in emotional range rather than depressed. His hearing was thought to be normal but he had difficulty registering questions and frequently asked for questions to be repeated in a way that was typical of people with impaired concentration due to mental illness. He gave brief uninformative answers that were lacking in explanatory detail. There was no evidence of disorganisation of speech of a kind often observed during acute mental illness. He denied experiencing hallucinations at the time of the interview and did not offer a delusional explanation for his reported experiences. However, he did not appear to recognise that the experiences were a symptom of mental illness. Mr Sharrouf's attention was impaired as was his ability to register and retrieve information.”

30 Dr Nielssen eventually arrived at a diagnosis of schizophrenia. In doing so he observed:-

“He appears to have a fairly disabling form of the illness in that it has resulted in significant impairment in his intellectual performance confirmed in psychological testing performed last year. He has a disabling mental illness and it appears that fluctuations in his mental state may have contributed to his offending behaviour.”

31 The evidence I have set out above serves to document the offender's mental health as it was at or about the time of the commission of the offence. The Crown agrees it supports the conclusion that at that time he was suffering from a mental illness. The Crown does not point to any material which contradicts the diagnoses which were made or the opinions which were expressed as outlined above.

32 In addition to the production of the offender's treating medical records relating to the period prior to his arrest, Justice Health produced other records pertaining to his treatment following his arrest on 8 November 2005. Those records disclosed that on 17 November 2005, only nine days after his arrest, the offender was assessed by Dr Allnutt, a consultant psychiatrist. No written report of Dr Allnutt was included in the material produced on subpoena. His clinical notes however, were included and recorded the following history:-

“He has in the past heard voices. He last heard a voice a few months ago. Can't recall what. Used to hear things outside and thought they were people. Used to run out with a bat but unable to hear properly. Thought they were saying negative things. Onset about 6 to 7 years ago. Began to use acid LSD about 6 to 7 years ago in one hit. After that began to think that people were after him. At the start, not sure, freaked out because started thinking that it may be his family, thought everything that they told him was a lie. Thought his family were planning to harm him. Began to affect his sleep. Kept waking up. Believed someone outside of his house. On occasions he went out with a bat but wife has never heard the sounds. Recalls telling his mother and father that people were following him. Around this time also had feelings of depression, appetite decreased, saw Dr Ali, followed up by Dr Ali, saw him every few weeks. Thought people would read his mind and control his thoughts. Used to be highly contemplative about what people meant when they were talking to him. After he realised he had a problem, he began to hang out with Muslims. They always reminded him of God. Began to hang with people in the mosque. Attended each time prayers were on. This relaxed him. He found that every time he felt paranoid, the thought of God would relax him. Used to attend as often as he could. Began to attend the mosque frequently after he got married about four and a half to five years ago. At that time he was recovering from his paranoia.”

33 This history was generally consistent with that recorded by other medical practitioners, including Dr Nielssen. Moreover, it was sufficient, in combination with evidence obtained from other sources, including the treating records, for Dr Allnutt to arrive at the same diagnosis as had been made by Drs Ali and Nielssen, namely schizophrenia. The clinical notes of Dr Allnutt and his diagnosis are indeed consistent with the treating medical evidence. In circumstances where the offender was examined by Dr Allnutt only a matter of nine days after being taken into custody, only one month following the commission of the offence which is the subject of the plea, the records produced by Justice Health provide ample support for the conclusion that the offender was suffering from a schizophrenic condition at the time of the commission of the offence.

34 In November 2007, Dr Nielssen came to the view that the offender was unfit for trial. This opinion was confirmed in a further report of Dr Nielssen on 23 February 2008. The opinions of Dr Nielssen were generally supported by Dr Westmore, who examined the offender on behalf of the Crown for the purposes of determining whether or not he was fit to stand trial. In his initial report, Dr Westmore expressed the following opinion:-

“I would note early in this report that based on his clinical presentation Mr Sharrouf is not fit to stand trial. He appeared to be perplexed and confused throughout the assessment and he also appeared to be responding to auditory perceptual disturbances. In a forensic context and following a single cross-sectional interview, the question of malingering or a factitious disorder need to be considered. I would indicate, however, that I think that those diagnoses are less likely. It is probable that he is suffering from an acute psychosis.”

35 Having set out his finding on examination, Dr Westmore went on to say:-

“This man appears to have an acute exacerbation of the illness schizophrenia. His presentation suggested that he would not be able to understand the nature of the proceedings or to follow the course of the proceedings. Again, based on his clinical presentation, he would not be able to understand the substantial effect of any evidence that may be given in support of the prosecution, nor could he make a defence or answer the charge.”

36 Significantly, as regards appropriate treatment for the offender, Dr Westmore expressed, essentially, the same view as had been expressed by Dr Nielssen:-

“This man does need to be transferred to a secure psychiatric unit. Any organic causes for his clinical presentation need to be excluded. He needs to have Serial Mental State Assessments commenced and regular notations regarding his longitudinal behaviour. As I indicated at the commencement of this report, differential diagnoses of malingering and a factitious disorder need to be considered but at this stage my preferred opinion is that he is suffering from an acute and probably untreated or inadequately treated exacerbation of the illness schizophrenia.”

37 On 25 June 2008, primarily based on the opinions of Drs Nielssen and Westmore, the Court concluded, as I mentioned at the outset, that the offender was not fit to stand trial but that he would become fit within a period of 12 months. Following that finding, an order was made that he be tried separately from those with whom he had originally been indicted. It was further ordered that the issue of fitness be further canvassed in early 2009.

38 During the period between June 2008 and early 2009, the offender underwent more structured psychiatric treatment. In early 2009 he was reviewed by Dr Cassidy from Justice Health as well as by Dr Nielssen. Both specialists expressed the opinion that the offender was now fit to be tried and the Court ultimately accepted that to be the position.

39 In February 2009, as I have indicated earlier, Dr Nielssen had interviewed the offender. He concluded that "a remarkable recovery had been made". Dr Nielssen attributed this recovery to a change in medication and to the fact that it now appeared it was being administered appropriately and regularly. Dr Nielssen thought that the offender was now fit for trial but expressed the opinion that he might have a defence of mental illness open to him.

40 Dr Nielssen's final report is dated 14 September 2009. The offender confirmed to the forensic psychiatrist that he had entered a plea of guilty to the present charge and discussed this with him in some detail. The offender confirmed that he had continued to take a moderate dose of the two drugs which appear to have brought about his remission. The interview confirmed to Dr Nielssen that the offender had maintained the recovery noted earlier in the year. In the concluding part of his report, he expressed the following opinions:-

“Mr Sharrouf's schizophrenic illness has remained in remission as a result of the continuation of an adequate dose of antipsychotic medication. Moreover, his intellectual function has continued to improve, and he did not appear to be specially affected by the residual impairment in the intellectual function often observed in patients with chronic schizophrenia.”

41 Later, Dr Nielssen said:-

“Mr Sharrouf was mentally ill at the time of the offence. An abnormal state of mind arising from mental illness is likely to have resulted in significant impairment in his appreciation of what was taking place and his capacity to think in a logical way about the likely consequences of his action. I examined Mr Sharrouf on 19 September 2005 and found him to have objective features of a severe form of mental illness for which he was supposed to be taking antipsychotic medication prescribed by Dr Ali. However, he was either not taking the medication at that time or the dose was not high enough at that time.”

42 I should add that the Crown did not take issue with the views expressed in this paragraph of Dr Nielssen's report.

43 In the last paragraph of his report, Dr Neilssen said:

“Mr Sharrouf's presentation since recovering from the acute phase of illness is remarkably different to his mental state prior to his arrest and the early years of his imprisonment. He appears to have gained some perspective on his situation and how he came to be involved in this offence. He indicated that he did not hold any kind of extreme religious views or any desire to remain involved in organised religious activity. He does not come from an especially zealous family and his association with religious fanatics appears to be, in part, due to the effect of his emerging schizophrenic illness. My impression is that he is unlikely to become involved in a further offence of this kind and he does not need to be detained in a maximum security setting.”

44 As a consequence of the material to which I have referred, it is common ground between the parties that the offender was suffering from a serious schizophrenic condition at the time of the commission of the offence. Mr Brewer, however, in his written submissions argued that the offender's mental illness was likely to have contributed both to the genesis and degree of religious and political radicalisation experienced by him, as well as to the degree to which others around him may have adversely affected his beliefs in this regard. While it may be true that his mental illness predicated the offender towards extremism and radicalisation by others, there is no hard evidence in the agreed facts or in any other material before me that enables me to conclude that this is so, at least to any marked degree.

Prospects of Rehabilitation

45 It appears to be the clear view of Dr Nielssen that the offender is unlikely to become involved in a further offence of the kind involved in the present sentencing process. Dr Nielssen thought, as I have said, that the offender's presentation since recovering from the acute phase of his illness was remarkably different to his mental state prior to his arrest and in the early years of his imprisonment. Importantly, it was thought that the offender had gained some perspective of his situation, and some understanding of how it was he came to be involved in the offence.

46 There is an affidavit before me from Tara Nettleton in which she says:

“Khaled and I have discussed on numerous occasions during our visits what he wants to do once he is released from prison. He often tells me how sad he feels that he has missed out on so much of his children's life and that he can't wait to be able to return home so that he can have a chance to make up to his children all the time that was missed and get to know them again. We often talk about moving out to the country and living on a farm so that we get away from everything and get the chance to have a fresh start. He has said to me many times how he wants things to be different, how he wants the chance to start a career and try and make something of himself. He doesn't want to involve himself with anyone. He just wants to stick to himself and stay out of trouble. The only place he mentions he wants to go is the Friday prayer at the mosque.”

47 In the last section of the affidavit Ms Nettleton says:

“Once Khaled is released, he will be living with me and his children. I used to support and care for Khaled before he went to prison and I am prepared to do the same once he is home. He will have ongoing support by not only me, but his mother and siblings also. We are all prepared to provide him with any type of assistance he needs. Khaled has many people who love and care for him and are more than willing to help him.”

48 On the issue of his rehabilitation, the Crown pointed out that there is a discrepancy between the statement made by the offender to Ms Nettleton and a statement contained in Dr Nielssen's report. Dr Nielssen had said the offender indicated he had no desire to remain involved in any organised religious activity, whereas Ms Nettleton suggested he had indicated to her that he wanted to get back to Friday prayer at the mosque. There is a suggestion in the agreed facts that his extremist views may have been sourced, at least in part, in the mosque, although the matter is by no means clear.

49 Overall, I accept that the offender has reasonable prospects of rehabilitation, although this must necessarily be a cautious prediction. The offender gave no evidence before me. It is difficult to place very much weight upon the statements made by the offender to Dr Nielssen and Tara Nettleton in the circumstances where the offender has not given evidence concerning his withdrawal from, or rejection of, his previous extremist position.

50 There is some reason to accept, particularly having regard to the plea itself, that he may have moved away from, or, at least, is in the process of moving away from his former extremist position. There is a prospect for rehabilitation in this regard. I repeat, however, that I can only accept this as the situation on a rather cautious basis. If it is the offender's intention to return to the mosque as a place of religious devotion, he and those responsible for him will have to take special care that he is not inappropriately exposed to any degree of radical or extremist tutelage and influence.

Objective Seriousness

51 I turn now to evaluate the objective seriousness of the offence. The submissions of both the Crown and Mr Brewer traversed the circumstances of the offence in some detail with a view to assessing the objective criminality involved. First, I would observe that this endeavour must, in the final assessment, clearly be influenced by the existence, indeed the pervasive existence, of the offender's mental illness. Mr Brewer accepts, however, that the objective criminality involved here is significant. Counsel argues that the offender's capacity to judge and rationalise, however, was significantly impaired. That submission is, I think, supported by the psychiatric evidence. However, Mr Brewer went so far as to submit that the impairment may represent a causative and/or principal factor in the offending. I am unable to accept this submission, and indeed it is not borne out by the evidence. Especially, it is not borne out by Dr Nielssen's evidence. Moreover, the offender's plea recognises, importantly, that the offender knew of the connection between the items themselves and the preparation for a terrorist act or acts.

52 It is clear that the margin between the parties on the issue of the objective seriousness of the offence is relatively narrow. On the one hand, it is true that the batteries and clocks were common items. They were easily obtainable domestic items. They could have been purchased without any degree of subterfuge or concealment. They were not, in themselves, dangerous items, although it must be conceded that their use in the manufacture of an improvised explosive device would have been likely to render them very dangerous indeed. Moreover, the venture must be seen as a one-off acquisition, and not as part of any course of continuing criminal conduct on the offender's part.

53 Each of those conclusions appears to be clearly the situation arising from the agreed statement of facts. It must also be accepted, I think, that the offender's behaviour in stealing the items, and his method of concealing them for example, was of a very unsophisticated nature. It was likely to be easily detected, as it in fact was. The Crown, however, has submitted that while the offence created by s 101(4) is less serious than a number of others for which provision is made in the legislation, it remains nevertheless an offence of significance and seriousness. The Crown submitted that the offender's level of criminality, when viewed objectively, should be regarded as falling towards the higher end of the scale. In this regard the Crown relies upon the fact that the offender's possession of the batteries and the clocks should be viewed as having been brought about by conduct which was, to a degree, clearly premeditated.

54 The Crown submitted that there could be no dispute, having regard to the agreed facts, that the items which were in the offender's possession were, when combined with other components which were themselves both readily available and inexpensive, capable of constructing six timed explosive devices. Each of those would have had the capacity to detonate a number of different primary explosives. The Crown argued that the terrorist acts which would have occurred, had the intended act or acts actually been carried out, suggested the use of an explosive device or devices which would, at the very least, have caused serious damage to property, and possibly have endangered life and posed a threat to the wellbeing of the public.

55 In my view, leaving aside for one moment the issue of mental illness, the Crown's submission must be accepted. The seriousness of possessing items of this kind in connection with a terrorist act or acts, knowing of the connection, must be regarded as one falling towards the higher end of the scale. That this is so in the present matter is, I think, reinforced by the nature of the extremist and instructional material in the offender's possession in 2005, and by the extremist views he held.

56 This finding as to objective seriousness is to be moderated, however, by the existence of the mental illness at the relevant time. I have already referred to the relevant material in Dr Nielssen's report which is not in contest. The offender's capacity at the time of the offence to reason about his actions and their consequences was likely to have been significantly impaired by his mental illness. In addition, Mr Brewer suggested that the offender may have been influenced into obtaining possession of these items by others who took advantage of his mental illness and his fragility in that regard. While I suspect that that may be so, there is no evidence before me that enables me to come to that conclusion. As I said at the outset, the agreed facts somewhat limit the Court's ability to drill down into the substratum of events behind the commission of the offence. I am bound by those agreed facts and I cannot look outside them, whatever my suspicions.

Statutory and other guides to sentencing

57 The statutory guidepost for the exercise of the sentencing discretion in the present matter is provided by s16A(1) of the Crimes Act 1914 (Cth):

“In determining the sentence to be passed, or the order to be made, in respect of any person for a Federal offence, a Court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.”

58 Section 16A lists a number of matters which the Court must take into account "as are relevant and known to the Court". These include, relevantly, for the present sentencing exercise:

• the nature and circumstances of the offence
• the degree to which the offender has shown contrition for the offence

• the fact that a person has pleaded guilty to the charge in respect of the offence

• the deterrent effect that any sentence may have on the person
• the character, antecedents, age, means and physical or mental condition of the offender
• the prospect of rehabilitation of the offender, and
• the need to ensure the offender is adequately punished for the offence.

59 Although the need for general deterrence is not specifically listed among the factors in s16A(2), a sentencing Court must have full regard to the need for denunciation and general deterrence in determining the appropriate severity of the sentence in accordance with s16A(1) (R v Paull (1990) 20 NSWLR 46; El Karhani (1990) 21 NSWLR 370). The formulation of words in s16A(1) indicates that the sentencing principles developed at common law, rather than the various provisions in the State legislation, should apply for sentencing of Commonwealth offences (Faheem Lodhi v Regina (2007) NSWCCA 360 at (81) per Spigelman CJ; Johnson v The Queen (2004) HCA 15; (2004) 78 ALJR 616 at (15)).

60 It is clear that the common law concepts that are especially important in a sentencing exercise in connection with a terrorism offence are punishment, deterrence, denunciation and incapacitation (the last matter is often described as protection of the community) (Faheem Lodhi v Regina at (89, 97 to 109) per Spigelman CJ). In R v Martin (1999) 1 Cr App R (477 at 480), Lord Bingham CJ 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.”

61 These propositions need to be qualified, however, where, as is the case here, the circumstances of the offending are significantly clouded by the presence of a substantial and chronic mental illness. In such a case, the presence of that kind of mental illness is relevant in the assessment of objective criminality. It is also relevant to a determination as to whether or not the case is one that calls for a particular measure of general or specific deterrence. (Regina v Matthews (2004) NSWCCA 112 per Wood CJ at CL (at 20-24); Regina v Israil (2002) NSWCCA 255 per Spigelman CJ at (21-23); R v Letteri NSWCCA 18 March 1993 as adopted in R v Engert (1995) 84 A Crim R 67 - see also Scognamiglio (1991) 56 A Crim R 81 and R v Champion 1992 (64 A Crim R 244)).

62 In my opinion, the offender, on account of his schizophrenia is by no means a suitable vehicle for general deterrence. Although his crime is a most serious one, his mental condition and its impact on the circumstances of the commission of the offence call for the application of the remarks of the then Chief Judge at common law, Justice James Wood, in Regina v Matthews at (para 22). His Honour pointed out that the reason for the adoption of this qualifying principle was, as he had stated it in Regina v Henry (1999) 46 NSWLR 346 at para 25. His Honour there had said:

“The community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act or of its moral culpability which, although falling short of avoiding criminal responsibility, does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice.”

63 His Honour noted that similar considerations apply in relation to personal deterrence where the disability or limited intellectual functioning is such that the offender may not fully appreciate or understand the nature of his or her offending, or of the message which the sentence is expected to convey.

64 Accordingly, I determine that general and personal deterrence, while not entirely absent, should have a much reduced role to play in the present sentencing exercise.

65 Finally, it is necessary to mention that, in relation to the sentencing of a person for a serious terrorism offence, there is a need to consider the nature and purpose of the antiterrorism laws, the reasons for their enactment, and, in the context of the precise offence, the maximum penalty prescribed by the legislature.

Matters to be taken into account on the offender’s behalf – the plea

66 I turn then to consider matters that are to be taken into account on the offender's behalf. The first matter is the discount for plea. The plea is a factor that must be taken into account under the terms of the Crimes Act 1914. Indeed, the plea is an important matter to be taken into account, as all the authorities accept. The position in relation to the value of a plea in sentencing for a Commonwealth offence in New South Wales is clear. The proper approach is to recognise the value of the plea of guilty by reference to the willingness of the offender to facilitate the course of justice. It is not appropriate simply to view the utilitarian value of the plea on the basis that it has or may have saved the community the expense of a contested hearing. (Tyler v R; R v Chalmers [2007] NSWCCA 247 at [110-111]; R v Cameron [2002] 209 CLR 339)

67 Although the Court is not bound to state a mathematical quantification for a discount allowed on this basis, it is, in my view, desirable in the present matter to demonstrate a level of transparency in that regard. I have earlier in these remarks set out the circumstances that led to the plea, including, importantly, the timing of the plea. It is common ground between the Crown and Mr Brewer that the plea was entered at the first available opportunity. In view of the offender's mental illness at the time of his arrest and during the following years, that must be so. For that reason, a discount of 25% should be allowed. It is to be allowed on the basis that the plea demonstrates a subjective willingness, indeed a very effective willingness to facilitate the course of justice. The Crown very fairly agreed that a discount of that level should be allowed in the present circumstances.

68 The offender, through his counsel, has argued that the Court should make allowances for a number of other factors in the sentencing process. I shall deal with each of these separately. I should make it clear, however, that these are each matters that are simply to be reflected, to the extent they are made out, in the selection of an overall sentence rather than by the granting of specific discounts or allowances.

Other matters

69 First, Mr Brewer has argued that there should be taken into account the factor relating to the special hardship experienced by the offender as a consequence of his status as an AA prisoner and his incarceration in high security facilities at Lithgow and Goulburn Correctional Centres. Secondly, there is the allied factor that the offender has been an untreated mentally ill person during a good deal of his remand incarceration. Mr Brewer argued that this was likely to have occasioned him a special degree of distress and anxiety. I accept that these are matters that can and should be taken into account in selecting an appropriate sentence.

70 I examined the issue of AA classification in some detail in the decision of Regina v Touma 24 October 2008 (see paras 147 to 149). As to the second matter, it seems to be correct as a matter of factual evaluation that the Department of Corrective Services was slow to set about fulfilling its duty of care in the present matter. Dr Nielssen thought that the failure to treat the offender left him "languishing in prison in an untreated state". That state was likely to have been a paranoid anxious state that would have been distressing and frightening to him. In due course, however, with a good deal of prompting, the Department of Corrective Services effectively responded to the offender's situation and provided appropriate treatment. This had a remarkable effect upon bringing his mental illness to a state of remission. I propose to make a moderate recognition in the sentence for each of these matters.

71 The third matter argued for by Mr Brewer related to an allegation of special hardship to the offender. This was said to arise as a consequence of the administrative decision to preclude visits for a period of two years by his wife Tara Nettleton. Ms Nettleton addressed this in paragraph 7 of her affidavit. She said that she was banned from seeing her husband from February 2006 until February 2008 for "attempting to bring contraband into the correctional centre". She alleges this was a prescribed painkiller. It seems that she was further banned from visiting in January 2009, although the reason for this exclusion is not made clear. However, I simply do not know enough of the circumstances relating to these matters to determine whether it is a matter that can or should be taken into account.

72 The next matter mentioned was hardship to the offender's family caused by the limited and/or extinguished access that arose following upon his remand in custody. I do not accept that the circumstances of this matter are such as to warrant any allowance to be made as suggested. I have sympathy for the family, considerable sympathy, but the consequence of the commission of a serious criminal offence is likely to be that the person charged will be bail refused in custody pending trial. This will carry with it all of the deprivations and restrictions that follow upon incarceration. That is the situation here. When this occurs, of course, administrative decisions may result in difficulties for members of the family wishing to visit the prisoner. But that situation is not, in my view, an exceptional circumstance. At least I am not satisfied on the evidence that it was so in the present matter.

73 A final matter relied upon by Mr Brewer was his assertion that an allowance or discount should accrue as a consequence of an acceptance of responsibility and remorse. Allied to this proposition was the argument that the offender does not present as a danger to the community. I have touched upon these matters earlier. As to each, I repeat, the Court must approach this aspect of the sentencing process with some measure of caution and hesitation. While these are matters that may be taken into account in an appropriate case, it is important, even if they be established, to make sure that they are not taken into account in such a way that has the effect of inappropriately doubling up, or merely repeating a discount or a recognition that has already been given or made.

74 In the present matter, I accept that the plea of guilty may be taken, to a moderate degree, to express remorse and the acceptance of responsibility. Secondly, I accept that it may also be taken to represent, at least to some degree, a drawing back by the offender from the extremist beliefs that motivated and characterised the commission of the offence. In the case of each of these considerations, I repeat, that the offender has not given evidence before me as to his present state of mind or attitude. I can, give but little weight to the statements attributed to him by his wife and forensic psychiatrist. In relation to both these aspects of the matter I accept, however, that the plea may be taken as a cautious indicator that the offender is in the course of relenting, or moving away from his past extremist position. Although the community may still require protection, this may well be at a lower level than might have otherwise been the case, had it not been for the plea.

The sentence to be imposed

75 I turn now to consider the sentence to be imposed. I shall leave to one side for the moment the discount for the plea, although I have found that this should be allowed at a percentage of 25%. Taking into account the overall objective criminality involved in the offence, but making proper allowance for the subjective and other features, particularly the offender's mental illness, it is my view that, prior to discount, the offence warrants the imposition of a sentence of seven years imprisonment. This means that, when the discount is applied, the sentence should be for a term of imprisonment of five years and three months. The sentence is to commence on 8 November 2005 and is to expire on 7 February 2011. It will be apparent from this that the sentence is to be backdated to take into account the period of time the offender has already spent in prison on remand.

76 Section 19AB of the Crimes Act requires the Court to fix a non-parole period or a recognisance release order in the present circumstances. I am satisfied that a non-parole period should be fixed. The purpose of such an order is to provide a mitigation of the punishment of the offender in favour of his rehabilitation through conditional freedom. It is necessary that the non-parole period itself should incorporate all the relevant sentencing principles, including punishment, denunciation and general deterrence. These factors, however, themselves necessarily require to be moderated where there is, as here, a significant mental illness involved.

77 The length of the non-parole period, however, is effectively governed in the present matter by s19AG of the Crimes Act 1914. Following the enactment of that section, the Court is obliged to fix the non-parole period in the present matter at a percentage of at least three-quarters of the sentence. This means, in practical terms, that the non-parole period in the present matter must, at the very least, be for a period of three years eleven months and seven days. In my opinion, it is appropriate in the circumstances of this matter that the non-parole period be set no higher than at 75% of the sentence. It has not been submitted by the Crown that the Court should do otherwise. This means that the non-parole period will commence on 8 November 2005 and will expire on 14 October 2009.

78 Khaled Sharrouf, in relation to the charge in the indictment to which you have pleaded guilty, I sentence you to a term of imprisonment of five years and three months. This sentence is to commence on 8 November 2005 and is to expire on 7 February 2011. I fix a non-parole period in respect of the sentence of three years and eleven months and seven days commencing on 8 November 2005 and expiring on 14 October 2009.

Explanation

79 Mr Sharrouf, I am bound to explain to you the sentence. This means that you will have to spend a little less, one day less, than three more weeks in prison. In approximately three weeks' time, on 14 October 2009, you will be eligible for release. I have backdated your sentence to take into account that you have been in custody since 8 November 2005. Now, I should make it clear to you that it will be a matter for the Attorney-General as to whether you will be released on that day, 14 October, this year. It will also be a matter for the Attorney-General to determine if any conditions should apply to you when you are released.

80 You should bear in mind that upon your release you will remain on parole for just over a year and four months, until 7 February 2011. If you were to breach your parole in any way, you might be required to return to prison to serve the balance of your sentence. All right, thank you.

BELLEW: Your Honour, there is just one factual matter and it is my error. In the statement of facts at paragraph 8 there was a reference to the offender having been sentenced to a period of 14 days imprisonment on the New South Wales charges. It should have read "whilst in custody" not "whilst on bail".

HIS HONOUR: I will make that correction.

BREWER: Your Honour, might we seek an order or recommendation from your Honour that he be kept in Sydney for another week?

81 HIS HONOUR: Yes, I am going to suggest that he be kept in Sydney until the term of his sentence expires. I make that recommendation. It seems clear that it is in his interests to be in a stable position where he can receive appropriate medication at this late stage, when there is only matter of days before he is to be released. It would be a tragedy if he were to be inadequately or inappropriately treated for his condition during his last weeks in custody.

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