R v Touma

[2008] NSWSC 1475

CITATION:	Regina (C'Wealth) v Touma [2008] NSWSC 1475
HEARING DATE(S):	12/09/08; 10/10/08
JUDGMENT DATE :	24 October 2008
JUDGMENT OF:	Whealy J at 1
DECISION:	Mazen Touma, in relation to the first charge in the indictment, I sentence you to a term of imprisonment of 14 years commencing on 8 November 2005 and expiring on 7 November 2019. In relation to count 2 in the indictment, I sentence you to a term of imprisonment for 14 years. This sentence is to commence on 8 November 2005 and will expire on 7 November 2019. In relation to the third charge in the indictment, I sentence you to a term of imprisosnment for 8 years. This sentence should commence on 8 November 2005 and expire on 7 November 2013. In relation to the fourth charge in the indictment, I sentence you to a term of imprisonment for 8 years. This sentence should commence on 8 November 2005 and expire on 7 November 2013. The sentences sin respect of counts 2, 3 and 4 are to be served concurrently with the sentence in relation to count 1, and with each other. In relation to the four sentences, I fix a single non-parole period in respect of those sentences for 10 years and 6 months comme4ncing on 8 November 2005 and expiring on 7 May 2016.
CATCHWORDS:	CRIMINAL LAW - Sentence - Terrorism offences - Principles applicable - Plea at the earliest opportunity - Co-operation by legal representatives - need for general detterence and protection of the community - Failure of accused to give evidence in sentencing proceedings - Weight to be given to statements in forensic psychologist's report
LEGISLATION CITED:	Crimes Act 1914 (Cth) Criminal Code Act 1995
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] Markarian v R [2005] HCA 25; [2005] 215 ALR 213 at [39] R v Barot [2007] EWCA Crim 1119 at [45] R v Cameron [2002] 209 CLR 339 at [11] R v Lodhi [2006] 199 FLR 364 R v Martin (1999) 1 Cr App R (477 at 480) R v Paull (1990) 20 NSWLR 47 R v PB [2008] NSWCCA 109 at (30) R v Qutami [2001] NSWCCA 353 per Smart AJ at [58] Tyler v R; R v Chalmers [2007] NSWCCA 247 at (110) and (111)
PARTIES:	Regina (C'Wealth) v Mazen Touma
FILE NUMBER(S):	SC 2007/2455001
COUNSEL:	G Bellew Sc; S McNaughton - Crown S Hanley; Ms R Mathur - Offender
SOLICITORS:	C'Wealth DPP - Crown Burke & Elphick Lawyers - Offender

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

WHEALY J

PARRAMATTA: FRIDAY 24 October 2008

2007/2455001 - REGINA v Mazen TOUMA

SENTENCE

1 HIS HONOUR: On 12 September 2008 Mazen Touma (the offender) pleaded guilty to each of four charges contained in an indictment presented against him on that day. The charges were:

(1) Between about 5 April 2005 and about 24 October 2005, at Sydney in the State of New South Wales, Mazen Touma did an act, namely acquired substantial quantities of firearm ammunition, in preparation for a terrorist act, or acts.
(2) Between about 5 April 2005 and about 24 April 2005, at Sydney in the State of New South Wales, Mazen Touma did an act, namely attempted to make one or more improvised explosive devices, in preparation for a terrorist act, or acts.
(3) On or about 8 November 2005, at Sydney in the State of New South Wales, Mazen Touma possessed a thing, namely a collection of items including lengths of copper pipe, gun powder, 165 railway detonators, instructional notes and dismantled firearm ammunition, connected with preparation for a terrorist act, or acts, knowing of that connection.
(4) On or about 8 November 2005, at Sydney in the State of New South Wales, Mazen Touma possessed a thing, namely a collection of documents, including electronic documents, images, videos and audio files, connected with preparation for a terrorist act, or acts, knowing of that connection.

2 As I have said, the offender pleaded guilty to each of these charges. This sentence hearing commenced on that day and he was thereupon convicted of each of the four charges. The sentence hearing was ultimately adjourned to Friday 10 October 2008 when oral submissions were taken. The parties had, prior to this date, filed written submissions. The sentence proceedings were adjourned to today for pronouncement of sentence.

3 The Court's task now is to state the facts of the matter, consider the competing submissions from the Crown and the legal representatives for the offender, and to impose sentence.

Background to the present plea

4 The offender is one of nine men who were arrested and charged in 2005 with a terrorism related offence. The charge in the original indictment was that the offender, and the other men, conspired together to do acts in preparation for a terrorist act, or acts. With the exception of one accused, who has been granted a separate trial on the basis of his unfitness for trial, the remaining accused are to be tried by a judge and jury. The empanelment of the jury is to occur during the week commencing 27 October 2008. In view of the offender's willingness to plead guilty to the four individual charges in the present indictment, the Director of Public Prosecutions has indicated that he will not proceed further against the offender in relation to the serious conspiracy charge.

Criminal History

5 Before embarking on the statement of facts relevant to this sentencing exercise, I should mention that the offender has a very limited criminal history. Apart from a matter in the Children's Court in 1997, the offender was convicted of assault occasioning actual bodily harm in the Redfern Local Court and fined $1,000, together with Court costs. Nearly a year later, on 22 September 1999, the offender was found guilty in relation to two charges, being possession of a prohibited drug and "resist officer" in execution of duty. On each charge the offender was placed on a recognisance to be of good behaviour for twelve months. These matters are, as I have indicated, of little or no moment when compared to the seriousness of the charges to which the offender has now pleaded guilty.

Agreed Facts

6 After consultation and sensible discussion between the parties, the Court has been provided with an agreed statement of facts. This is a very detailed document. It sets out the background to the commission of the offences, and then lists the facts in relation to each separate count in the indictment. It will be convenient and appropriate to set out the material in full in this decision.

Background to the commission of the offences

7 In 2004 and 2005 Police undertook an investigation of the activities of a number of persons, as a result of which the offender was arrested and charged. At the time of the commission of the offences, the offender was a devout Muslim and held certain beliefs in relation to his interpretation of the Muslim faith. Those beliefs included the following:

(a) that Islam throughout the world was under attack and that there was, as a consequence, 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; and

8 (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 “kuffir” (that is, persons who do not have the same fundamentalist beliefs).

9 The views held by the offender are evidenced by (inter alia) the finding of a large volume of material supporting such views (“extremist material”) at his premises upon the execution of a search warrant at the time of his arrest. That material is the subject of Count 4 in the Indictment.

10 The views held by the offender are also evidenced by statements made by him in the course of conversations with others. These were recorded, under warrant, by listening devices and telephone intercepts during the course of the Police investigation. Examples of those conversations are set out in the following thirteen paragraphs.

11 On 22 June 2005 at 10.31pm, there was a discussion between the offender and 2 other persons recorded by a listening device. During the conversation, the offender stated that he had “never ever saw, so strict about the Sunna until I hung out with Ahl Al-Sunna Wal Jamaa” [Ahel al Sunna Wal Jumma Association]. The offender encouraged the person to whom he was speaking to attend the prayer hall because with these people “you can’t go wrong” because “these people speak the truth and when they talk, they talk with proof and the doctrine…cannot go wrong.”

12 On 7 July 2005 at 7.24 pm, there was a telephone conversation between the offender and another person during which the offender said the following:

“ ..you can’t love infidels brother. How do you go save a man, an infidel against a Muslim when Muslims are at war with these people…God has promised that an infidel, whoever kills an infidel, the Muslim that kills an infidel they will never meet in hell .”

13 On 9 July 2005 at 6.03 pm, there was a telephone conversation between the offender and another person during which the offender was told on a number of occasions not to talk on the telephone. During this conversation the offender spoke about Clerics who had been martyred.

14 On 11 July 2005 at 8.30 pm, there was a conversation between the offender and another person which was recorded on a listening device. They discussed issues relating to Islam, including attempts by the West to clamp down on terrorism by encouraging Sheiks to give “fatwa” favourable to the west. The offender claimed that the West was attempting to arrange for fatwas to be given precluding the use of suicide bombings. The conversation included the following:

TOUMA: “But look, you know what else he said. He said that the fatwa they are giving they are trying to kill suicide bombing completely to make people have fears of it and to warn people against it so that people can think that suicide bombing is forbidden. This is the most things they are trying to do and it is petrifying for them it is scaring the Westerners what they are doing Brother that is what he says…

MALE: Please I am scared my brother I’m not the kind to wreck/destroy.

TOUMA: You are not wrecking this is Sharia, this is God’s Sharia he is doing something you have no guts to say something to him man.

MALE: But look look I want to tell you something these people are innocent it is nothing to do with them you can’t.

TOUMA: You can’t say that brother but what

MALE: Yeeeeh but

TOUMA: You can’t say that brother but what you cannot kill like this and like that what you mean you can’t the companions hey hey killed Abu Bakr Abu Bakr do you know about paying charity he killed Muslims because they stopped giving charity when the Prophet died. What are you talking about. These people want to talk about the sheikhs but we know and people know from their own country that America is paying them or they are with the American and they are giving legal ruling the way they want and they’re giving fatwa in this manner or in that manner.”

15 On 23 July 2005 at 7.17 pm the offender and his wife were recorded discussing various issues relating to Islam, including the undertaking of Jihad. The offender described being captured by the enemy as a chance to test oneself for the sake of Allah;

16 On 27 July 2005 at 8.03 pm, during a conversation initially between the offender and his mother, and later between the offender and his wife Voula, there was a discussion about various issues relating to Islam. The offender described the need for undertaking Jihad and in doing so, he criticized Taj el-Din, whom he said his mother still supported, saying that Taj el-Din had moved away from the person he once was. The offender said that Islam became weak when people forgot about Jihad. When relating to his wife the conversation he had just had with his mother, the offender said:

“Jihad still exists until the day of judgment brother, you can’t change it, you can’t change it. Then I explained to her [his mother] a Hadith about innocent people, why they die. Why Islam doesn’t kill innocent people. But innocent people die in war, its an unfortunate thing innocent people die in war, that is how it is, you know what I mean.

17 And later:

“ Hey, I seek refuge from Satan Allah promised, promised that I seek protection from Allah you’ve just told me that you will rely on Allah and Allah promised the Mujahidd [sic] that when he goes he look after his family when you are going out for the sake of Allah glory and almighty he is . Allah promised this sister and if you do this and if you put you through hardship this is to reward them more. I do go why do this world . OK you are saying that what if tomorrow I am driving on the way to the Mosque and I have an accident and die what are youse going to do? What are youse going to do I am not going to be around forever. Do you understand that? I told her to understand that, my wife’s not going to be around forever, my son is not going to be around forever, my darling everyone dies. I told her everyone dies. Wherever you are Allah says call him indeed the death from which you flee – indeed it will meet you then you will be returned to the Noah of the unseen and the witnessed and he will inform about what you used to do .”

18 On 31 July 2005, the offender had a telephone conversation with another person. During that conversation there was discussion about Islamic teachings, obtaining Islamic tapes and CDs, and having a computer installed to view the programs. There was also a discussion about which moderate “Clerics” were going on “the Denton Show”. The offender said that the Clerics thought that this was good for Islam but they were ruining it because the media knew how to manipulate them. They talked about other Islamic schools of thought and Muslim fundamentalist groups. The offender said that the moderate Islamic teachings were “the work of the infidels to deviate the Muslims” and by such teachings “the war for America becomes easier”.

19 On 5 August 2005 at about 4.10 pm, the offender had a conversation with his mother where he expressed his willingness to undertake Jihad. He said that in response to his mother’s protestations, he had stated that Jihad is an obligation for all Muslims and that he did not need her permission. The offender also said: “I place God’s satisfaction above your [his mother’s] satisfaction”. He also said: “one should do a deed to satisfy his God, the Almighty”. The offender said that his mother should be patient because tomorrow they will all be living in paradise and she could see her children as much as she liked. The offender then discussed with his wife the conversation he had had with his mother. He also described the pressures that “Sheikh Osama” felt before undertaking Jihad (in circumstances where Sheikh Osama’s mother begged him not to do so). The offender spoke of Allah giving him paradise for martyrdom and stated that there is an “obligation on every Muslim to defend his faith to fight for the religion of God against the infidels”.

20 A short time later on 5 August 2005 between about 6.57 pm and 7.07 pm, there was a conversation between the offender and another person in which the offender said that he loved being called Osama Bin LADEN. The offender then said:

“...we [as Muslims are] terrorist because (ind.) all of us [Muslims] to be terrorists. (Ind) the terrorism way huh…and God the Almighty he said…prepare for them whatever power and arms you are capable of with which terrorise the enemy of God you’re your enemies…terrorise is to terrorise. (Ind) God and your enemy. So therefore if you’re going to terrorise you’re a terrorist. So we [Muslims] are terrorists ….. If they kill me I get martyrdom ”.

21 On 25 August 2005, there was a telephone conversation between the offender and his wife during which the offender discussed the rationale for engaging in militant Jihad.

22 On 4 September 2005 at 9.53 am, there was a telephone conversation between the offender and another person during which they discussed a third party having meetings with ASIO about “anti terrorism and all that”. The offender stated: “may God never grant them success … May God exact revenge upon them”. The offender also stated that “the victory of God is soon to come … how are ya gonna get victory without hardship”. There was then a discussion about hurricane Katrina destroying New Orleans and how this event revealed the wrath of almighty God. In a conversation with another person shortly afterwards, the offender stated that the destruction from hurricane Katrina showed that “the Mujahedin’s supplication doesn’t go astray”.

23 On 24 March 2005 at 11.49 am, there was a telephone conversation between the offender and another person when, in reference to a discussion about shooting people, the offender said “It’s a…it’s a order from God to be like that too man ….. it’s part of the preparation for everything”.

24 In accordance with the holding of these beliefs, the offender engaged in acts in preparation for a terrorist act (or terrorist acts), and possessed things in connection with such acts, knowing of that connection.

Count 1 – The acquisition of ammunition

25 Between 5 April 2005 and 24 October 2005 there were a series of telephone calls between the offender and one George LORD (“LORD”). Those conversations centred upon arrangements being made by the offender for the acquisition of significant quantities of ammunition.

26 On 5 April 2005 at 4.56 pm, the offender called LORD, who told him that the “point 7 point six two, whatever it is...you can’t get any more”. The offender responded: “no way”. LORD said that “hunting rounds” were available but with “soft points” and that these were $15.50 a box. He also told the offender that “high velocity powder” was also available at $40 a kilo. The offender enquired as to whether the latter was the “most like, powerful stuff” and whether there was a limit to how much could be supplied.

27 On 6 April 2005 at 8.11 am, there was a telephone discussion between the offender and LORD about the payment terms in relation to the proposed purchase of ammunition. A few minutes later there was a discussion as to the amount to be ordered, timing and payment terms. Later that day, the offender confirmed that it was a definite order.

28 On 6 April 2005 at 1.05pm, there was a telephone conversation between the offender and his wife, during which the offender asked his wife to obtain an item from the front pocket of his “army vest” and take it to his mother, where he would pick it up. During the conversation the item was referred to in code as “a block of chocolate”. On the following day, 7 April 2005, the offender again spoke with LORD and told him that he would bring half the money, being $4,000, “tonight”. LORD stated that the ammunition would not be ordered by the supplier until he had received that amount.

On 8 April 2005 at 4.30pm, LORD called the offender, who asked: “Hey, what did you get? A kilo uh?” LORD replied: “yeah I got you ... yeah. … [they are] in plastic containers now”. The offender enquired whether they were the same size. LORD responded:”yeah, half a kilo, yeah, actually they’re, they’re heavy, heavy, heavy grades, you know”. The offender responded: “Right, so they’re good ones?” LORD told him: “yeah, the good one mate, I said they’re heavy grades”. The offender responded: “they’re, they’re the best ones, uh…oh beautiful”. Arrangements were made for the offender to go to LORD’s at around 6.30pm.

29 On 9 April 2005, there was further discussion between the offender and LORD about the terms and conditions of the proposed supply of ammunition. LORD said that he would contact the offender on the following day.

30 On 10 April 2005 at 8.41am, LORD called the offender. He told him to come past that afternoon as his [LORD's] friends had given him “the list” of items (ammunition) to be supplied which included “certain rounds that you can’t find anywhere”. The offender asked: “should I come past real quick?” LORD replied: “yeah, well come past yeah.” The offender responded: “I’ll come past real quick”.

31 On 15 April 2005 at 11.47pm, LORD told the offender: “Come past ‘cause I rang him…he’s going somewhere, so he goes…come, pick ‘em up”.

32 On 16 April 2005 at 8.31am, the offender called LORD. They discussed various types of ammunition purchased on the offender’s behalf. The offender stated that he would collect them either that night or the next day. LORD again rang the offender at 8.36 am and discussed the size of a particular type of ammunition. Later that day, at 5.28 pm, LORD called the offender and told him that he was “home” and to “come and get it now”.

33 On 19 April 2005 at 8.09 am, there was a telephone conversation between LORD and the offender during which LORD asked the offender if he still wanted “those things” [ammunition]. The offender said that he would “come and grab them” from LORD and that he would “definitely [be] getting money tonight”. They also talked about the price of the ammunition.

34 On 20 April 2005 at 10 am, there was a telephone conversation between the offender and LORD during which they discussed the offender needing to receive money before he could pay for the ammunition.

35 On 24 April 2005 at 11.09 am, LORD called the offender and asked him whether the ammunition was required. The offender stated that it was required “100%” and indicated that he was likely to give LORD the money that night.

36 On 26 April 2005 at 8.56 am, the offender received a telephone call from LORD. The following conversation took place:

LORD: … “You know my Winchester [rifle] .

TOUMA: Yeah .

LORD: I let one go last night…Mate, talk about nuclear warhead…

TOUMA: …Where, where’d you do it?

LORD: At the front…Fuckin’ solid mate, solid as (ind) a kick, you wouldn’t believe it…I just aimed it up in the air…if I went to the tower maybe I would have taken the tower down…

TOUMA: …How many of them…rounds have you got?”

37 Later in the same conversation, the offender told LORD to “ask Harry” about something that the offender had told LORD the previous day, saying: “I don’t want nothing with a small thing, only like…nice heavy like, like yours, you know like…a big kick and that on it…As long as… it’s in good condition and it works good…It doesn’t matter if it’s second hand”. They agreed to speak to each other later.

38 On 3 May 2005 at 5.42 pm, the offender received a call from LORD. During this call there was discussion between the offender and LORD about the use of a rifle. LORD provided assistance to the offender on how to use that rifle. LORD told the offender to bring the rifle to him the next day and he would show the offender how to use it.

39 On 10 May 2005 at about 6.46pm, the offender called LORD during which the following conversation about the offender purchasing ammunition took place:

TOUMA: “Remember them things I was asking you about…to get off Harry…

LORD: Yeah .

TOUMA: They’re for 35 each?

LORD: Yeah…

TOUMA: …Alright. Is there any… chance in the world you’ve got any …of that same one…now?

LORD: Nuh…Not that round…not that size.

TOUMA: I just thought you would have had from your old one or some…no ……….

LORD: No, I’ve got, I’ve probably got some…But not, not for that price.

TOUMA: OK, well, how much you want to sell them…50 bucks? ...

LORD: …Mine are completely different, you know what I mean?

TOUMA: Yeah, yeah, I know what you’re saying…How much…go see how much you’ve got and ring me back” .

40 On 10 May 2005 at 6.51pm, the offender again called LORD about the ammunition they had just discussed. LORD said: “I’ve got 49 of them…one missing…say a box…these are mine…my load”. The offender then asked: “…what do you want for them” and LORD replied: “I want at least seventy…’cause they’re hectic…they’re full soft…they’re blunt …”. The offender said that he would ring him back.

41 On 16 May 2005 at 4.55 pm, the offender received a call from LORD. LORD said that he could only get 8 and a half thousand at a cost of 75 for each 1,000 and if the offender wanted them he needed to grab them “now”. The offender told LORD that he would ring him when he sorted it out.

42 On 16 May 2005 at 4.59 pm, the offender received another call from LORD. LORD wanted to know whether there was going to be a problem with the purchase [of ammunition]. LORD said that he would “be getting them down” Thursday or Friday.

43 On 24 May 2005 at 7.08 pm, the offender received a call from LORD. LORD told the offender: “what we ordered is in…The bang bang.” The offender said: “…that stuff I asked you about today please get it for me…see how much…how it comes, like what form it comes …it’s really important…I’ll sort out the money for that other stuff”. They arranged to speak in the morning.

44 On 3 June 2005 at 7.14 am, the offender called LORD and told him that he was going to pick up the ammunition that day, probably at about 12.30, 1.00 or 2.00 pm. LORD said that he would be at work so he would leave “them” on the veranda and that someone would be at home. LORD told the offender to come before 9.00 or in the afternoon.

45 On 3 June 2005 at 7.34am, LORD called the offender and told him that he [LORD] had the ammunition on the veranda and to pick them up as soon as possible. The offender responded that he would collect them in an hour or so.

46 On 3 June 2005 at 9.32 am, the offender attended LORD’s premises at 95 Griffith Street, Punchbowl. At approximately 10.40am on that day he was observed to load boxes of ammunition into his (i.e. the offender’s) van which was parked directly outside that address. A short time later the offender left in another vehicle, but his van remained outside Lord’s premises. At 10.53 am, the offender called LORD and told him that there were only 15 boxes, not 16 boxes. The offender suggested that one of the boxes must have been left inside LORD’s house and arrangements were made for the offender to collect it. LORD told the offender that he would stop work at 3 o’clock and would then “come down”.

47 On 3 June 2005 at approximately 1.30 pm, police approached the offender’s van which was stationary and unoccupied outside 95 Griffiths Avenue, Punchbowl. Police located and seized from the van 15 boxes of ammunition which contained 7,500 rounds of 7.62 × 39mm calibre ammunition. This type of ammunition is used in SKS or AK-47 type semi-automatic weapons.

48 On 5 September 2005 at 7.21 am, LORD telephoned the offender and their subsequent conversation included the following:

LORD: “Just so, sort out with…you sort out for the, the drums.

TOUMA: Yeah, um…ah…yeah er, listen, you have the right forty five litres that you…the…the.

LORD: Yeah.

TOUMA: … forty five litre drums?

LORD: Yeah.

TOUMA: …….. as much as you can get.

LORD: Yeah but.

TOUMA: 100%, as much as you can get but ah the ones you’ve got…

LORD: Yeah.

TOUMA: All the 9 litre drums the, the 9 litre drums, ……...

LORD: Alright. …

LORD: What about the 40 litre drums?

TOUMA: The 40 litres? Um…well what’s today? Prob…I’ll come and I’ll get some…I’ll probably come and get, like I told ya, 10 drums of em.

LORD: Yeah.

TOUMA: Um probably… today’s Wednesday. I’m just waiting for my money to come man. I got no money bro.”

49 This conversation related to obtaining ammunition.

50 On 17 September 2005 at 7.28 pm, the offender telephoned LORD and asked whether he was “going up tomorrow?” The offender told LORD: “Before you go, can you just ring me so I can come and give you money … did you tell him about them things and everything as well, have you got them? You know which ones, hey, the thousand of them?” LORD replied: “I told them but the thing is, I mean…I mean, he’s got to order them in”.

51 On 18 September 2005 at 4.26 pm, the offender attempted to telephone LORD. The call went to message bank. The offender left the following message:

“Yeah George, it’s me Maz. Er, I’m tryin’ to call ya man but obviously you’re not answering your phone. Give me a call man as soon as you get the message, before you go up if you can. Bye. Or if you don’t…if you don’t get the message, you know the, the … the 45 litre drums of the white (ind) paint, leave me, leave 5 boxes of ‘em, there. (ind) Just leave 5 drums and I’ll pick ‘em up off ya later.”

52 On 19 September 2005 at 9.15 am, the offender telephoned LORD. LORD told him that he [LORD] had left his phone at home. The offender wanted to find out if LORD had got the things from “Harry”. The offender asked: “Did ya take him everything? Like the other drums and that?” The offender said that he would come past and see LORD.

53 On 20 September 2005 at 6.10 pm, the offender telephoned LORD. He asked: “Did you get everything?” When LORD replied that he had, the offender told him that he would come past.

54 On 24 September 2005 at 6.45 pm, LORD telephoned the offender and told him that he had 10 of those “forty five litre drums”. The offender asked how much he wanted for each [“drum”]. LORD told him “sixty five each”. TOUMA said: “I’ll grab your money and I’ll come.” He asked: “What happened to the other, the ones that we, the other one can we get it or? The other … the usual ones, the usual ones that you gave me the money back for?” LORD told him that he could not get any.

55 On 28 September 2005 at 3.30 pm, the offender had a telephone conversation with LORD. During the conversation LORD asked whether the offender still wanted the “Forty five litre drums” and if he did, he could have them tomorrow. The offender asked whether he could get any more. LORD told him he probably could but to come past anyway. The offender asked for 10 drums.

56 On 29 September 2005 at 9.35 pm, the offender contacted LORD. During this conversation LORD told him: “They’re, they’re here”. The offender asked: “Everything?” LORD told him: “No, not everything but you know if you want to come and pick it up now or come tomorrow”. The offender then asked: “Oh the same drums as yesterday?” LORD told him they were. Arrangements were made to meet the following day.

57 On 10 October 2005 at 3.29 pm, LORD telephoned the offender. The conversation included the following:

LORD: “… I just rang Harry and he’s got all my … he’s got everything except he can’t get, we can’t, we can’t get any three 0 threes … And, um, the locker we were getting’ a fair bit of.

TOUMA: Yeah.

LORD: Yeah, but he says they’ve put an order, it won’t take long but it’ll come, they’ll come in.

TOUMA: What happened, he can’t get right now, we have to wait for ...

LORD: The three 0 threes I’m gonna have to go somewhere probably elsewhere to go and get ‘em … probably, um, oh look probably Bexley or somewhere.”

58 In the course of the execution of a Search Warrant at the offender’s premises on 8 November 2005, the following items were located:

(a) 3 boxes of ammunition containing:
• 1 box of PMC El Dorado Starfire brand, 20 × .40 calibre pistol cartridges;
• 1 box of Federal Brand 20x .40 calibre pistol cartridges;
• 1 box of Winchester Brand .222 magnum rifle cartridges;
• 3 x PMC precision made pistol cartridges 50 PK centre fire;
• 40 Boxes of “Bushman Field” shotgun shells;
• 1 x box Winchester centre fire cartridges (9mm Luger 124 GR.

(b) 1 Glock Pistol box.

Count 2 – The attempted manufacture of one or more improvised explosive devices

59 On 9 April 2005 at 8.47 am, LORD called the offender. The conversation included the following:

TOUMA: “You know that thing that eh eh ah…you know them paints the guy was tellin’ you about yesterday that you were painting at his house? You know how he goes to ya, put the like um…the thing on the bottom and stuff?...’cause I was like thinking yesterday night man, now if you put that stuff on the bottom, alright?...Then you put…then then ya, then you plaster, you plaster the wall with corner cement on top of that right?...OK, then you put like (ind), you grab all the tools and stuff and you pour…pour. Then you plaster again with corner cement on top of that…huh, and then you put the stuff on…that I got off you yesterday again, right…and then on top of that again um…er, you plaster with cement…and that’s it?

LORD: Yeah that’s but the thing is eh, eh, the best thing it’s like um, it’s, it’s, the cut you put down…like put a bit of ah, put a bit of um, um.

TOUMA: A plastic sheeting?

LORD: Sheeting, yeah .

TOUMA: OK

LORD: …That way.

TOUMA: OK, I, I know what you’re saying. Uh, OK, I know. But you know how you’re gunna put...you know that stuff I got off you yesterday?

LORD: Yeah

TOUMA: If you put it right to the top and you...and and won’t...like once you, once you um do this thing, right, um and you try to sand it or burn it with the steamer, alright?

LORD: Yeah

TOUMA: Won’t the...won‘t the stuff at the top um go off but the stuff right at the bottom it won’t, because it’s gonna...the the top one’s gonna burn first?”

…
TOUMA: “…It might burn first and the ones at the bottom won’t burn because…because, because that thing…the thing…the, the steam’s gonna hit the top one first.

LORD: Yeah, well, you do, you know what will be better?

TOUMA: What?

LORD: Put it, put it all down the bottom alright?

TOUMA: And put…

LORD: And just tuck it there and then just, just um do it…

TOUMA: And and lay it down .

LORD: And, and then, then ah, what do you call it, then and put the the thing in right down to the bottom and let it.

TOUMA: Yeah, and and I won’t put none…I won’t put none of it on the top.”

60 This conversation relates to the making of an explosive device.

61 On 25 April 2005 at 10.42am, the offender called LORD and informed him that he [the offender] still needed to get the money that night. LORD said: “…tell him if he wants some more so he’ll have to put in a order”. Later, the conversation included the following:

TOUMA: “…Like, it works and everything, like, I tried it again like, after I made the other one. Remember how I go to ya…it works but it just like, um…it just goes like (ind) like um…soft?

LORD: Yeah.

TOUMA: …When it goes off? Now, I made another one and I sealed it properly like I said, you know like I thought...I sealed it with um...tiler cement…(ind)and I waited about 24 hours but, mate, ya know like, when I, when I went and switched it on…you know what I mean?

LORD: Yeah.

TOUMA: …(ind) in the house um...spat it right out, man, from the top, eh?

LORD: It what?

TOUMA: It spat it right out like from the...the...the…you know how you’ve got some at the bottom and some on the top to push the thing together to compress it together?

LORD: Yes.

TOUMA: To push it together? Like when it...when it um, when I switched it on it just spat it out from the top. It spat a whole block of it that I put in.

LORD: You know what you might have to do...

TOUMA: How...how would I...how would I make it so stiff if they like, the thing is when I switched it on um...like, the electricity, it made a bigger noise than the er…than the original one that I made, you know?

LORD: Yeah.

TOUMA: But it just...I...I’ve realised now that the only way it’s gonna work is if it’s um...if it’s...if it gets held in there so tough that it...it doesn’t break, you know, that it doesn’t come out. But it spat it...right out, man. It’s...the whole piece like, perfectly, just puffed, it just spat it...straight out. So I’ve gotta find a way where I can compress it from the top like, like keep it there like, put ...I dunno what I’m gunna put. What do you reckon I can put?”

62 On 25 April 2005 at 5.52 pm, the offender called a friend with whom he enquired about copper plumber pipes that his friend used on job sites. The offender asked about how to seal the end of a copper pipe and whether his friend had the tools to do this. The offender asked: “if I got you five can you, can you, um, seal them?” His friend replied, “Of course”. The offender said: “if I ever need it, if I …” [asking whether he could use the equipment if needed]. The offender asked: “how big can you get them pipes?” The offender made these enquires under the guise that he was on a job site and might have to do this, although the offender commented that he was probably quitting his job.

63 At the time of the execution of the Search Warrant on the offender’s premises on 8 November 2005 lengths of copper pipe (some of which had one end crimped/fused closed) were found. A note book was also found which included the following entry in the handwriting of the offender:

“Bearings ball, salt, firecracker powder/thick one, electric cord/firecracker cord, batteryies (sic), sealed with cotton (sic) and compress good, gun powder, uraic (sic) acid”.

64 Also found were 13 rounds of ammunition, cut in half, with the gunpowder removed.

Count 3 – Possession of things connected with preparation for a Terrorist Act

At the time of the execution of the Search Warrant on the offender’s premises at the time of his arrest on 8 November 2005, the following items were seized from the garage and are the subject of this count:

(a) A plastic box containing nails, 2 x 500 gram containers containing a total of approximately 800 grams of gun powder, various tools, crimped copper pipe, lead sinkers, 13 projectile pieces from sawn off shotgun, 13 sawn off bottom pieces from cartridge with primers unstuck and a quantity of .45 calibre ammunition;

(b) 165 Railway Detonators;

(c) one crimping plier set.

Count 4 – Possession of things connected with preparation for a Terrorist Act

65 At the time of the execution of the Search Warrant on the offender’s premises on 8 November 2005, Police seized a large quantity of what has been referred to as “extremist material”. The nature and extent of that material was summarized in Annexure A to the agreed statement of facts. It included a VHS video entitled “Sheikh Osama’s Training Course”.

66 In relation to this fourth count, there is also available a schedule of extremist and instructional material. This relates to a number of items tendered for the purposes of the sentencing hearing. There is no need for me to detail each and every one of these. There are really three categories. The first category relates to "seized media", being a number of image files, video files, document files and audio files. Once again, there is no need for me to describe these in detail. They include, for example, images of Mujahideen training and firing weapons. They include images of a number of explosions occurring during the Iraq conflict in 2005. These are described as punishment for challenging the Muslim nation. There are images of beheadings and shootings. There is fundamentalist material of various kinds glorifying suicide bombers and praising Osama bin Laden. Finally, there are instructional images dealing with sniper training, nuclear, biological and chemical warfare, and instructions on preparing firing systems, and the like.

67 The second category of "seized media" relates to files located on a number of separate disks. These were found during a search of the offender's premises on 8 November 2005. They include, for example, the virtues of martyrdom, fundamentalist concepts regarding jihad, and various instructional material relating to military and weaponry matters. There is also religious material on the methodology necessary to establish the Islamic state worldwide, and material highly critical of the United States.

68 The third category of "seized images" relates essentially to video files of beheadings, Mujahideen training and al-Qaeda instructional material, including assembly and detonation of an IED.

69 Finally, there is, as I mentioned earlier, a VHS cassette entitled "Sheikh Osama's Training Course". This material, once again, was found at the offender's premises on 8 November 2005.

The statutory framework for sentencing in Federal matters

70 The statutory guidepost for the exercise of the sentencing discretion in the present matter is provided by s 16A(1) of the Crimes Act 1914 (Cth):

“16A(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a Federal offence, a Court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.”

71 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 that the offender is adequately punished for the offence.

72 Although the need for general deterrence is not specifically listed among the factors in s 16A(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 s 16A(1) (R v Paull (1990) 20 NSWLR 47; El Karhani (1990) 21 NSWLR 370). The formulation of words in s 16A(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 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].)

73 It is clear that the common law concepts that are especially important in the present sentencing exercise are punishment, deterrence, denunciation and incapacitation (the last matter is often described as protection of the community - see Faheem Lodhi v Regina at [89, 97 - 109] per Spigelman CJ). In R v Martin (1999) 1 Cr App R (477 at 480), Lord Bingham CJ, as the Senior Law Lord then was, 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.”

74 There is also a need to consider the nature and purpose of the anti-terrorism laws, the reasons for their enactment and, in the context of the precise offences, the maximum penalties prescribed by the legislature.

75 In relation to the first matter, part 5.3 of the Criminal Code Act 1995, within which the relevant offences are contained, is based not only on the general legislative powers of the Parliament of the Commonwealth, but also on legislative powers referred by each of the States under s 51(XXXV) of the Constitution. As such, it is based on a scheme determined by the Parliament of the Commonwealth and the Parliament of every State. In that sense, it reflects the common will of the people of Australia through their elected representatives.

76 In addition, the seriousness with which the international community views terrorism offences is reflected in the number of international instruments which address the issue. The provisions of the Code in relation to terrorism offences give effect to Australia's international obligations as a signatory to a number of these instruments. They reflect a common world view that terrorism is a matter of international, not merely domestic, concern.

77 The background to the enactment of the anti-terrorism provisions contained in part 5.3 of the Code was explained by the Attorney-General in the course of the Second Reading Speech on 12 March 2002. This related to the provisions which were originally enacted. On that occasion the Attorney observed:

“(This bill) has been prepared in response to the changed security environment since September 11.

September 11 is a stark example of the horror and devastation that can be caused by acts of terrorism.

Terrorism has the potential to destroy lives, devastate communities and threaten the national and global economy.

For these reasons this government has affirmed its commitment to combating terrorism in all of its forms.

We join with the international community in condemning the 11 September attacks and other terrorist activities.

Other like-minded countries have passed, or are in the process of passing, anti-terrorism legislation designed to assist in this fight.

Consequently, counter-terrorism legislation and proposals throughout the world have been considered in the preparation of this Bill.”

78 It may safely be assumed the subsequent amendments to the terrorism legislation have been motivated by these or similar considerations, and by the impact of subsequent terrorist atrocities in various parts of the globe.

79 The first two counts (doing an act in preparation for a terrorist act, contrary to section 101.6(1) of the Code) each carry a maximum penalty of life imprisonment. The remaining two counts (possessing a thing connected with preparation for a terrorist act, knowing of that connection, contrary to s 101.4(1) of the Code) each carry a maximum penalty of 15 years imprisonment.

80 The broad purpose of the creation of offences of the kind involved in this sentencing exercise is to deter the emergence of circumstances which may render more likely the carrying out of a terrorist act. It is to punish those who contemplate action of the prohibited kind. It is to denounce their activities and to incapacitate them so that the community will be protected from the horrific consequences contemplated by their actions. The legislation is designed to bite early, long before the preparatory acts mature into circumstances of deadly or dangerous consequence.

81 There is an observation made by the Court of Appeal for England and Wales in R v Barot (2007) EWCA Crim 1119 at [45] which is germane to this discussion. There the Court said:

“Terrorists who set out to murder innocent citizens are motivated by perverted ideology. Many are unlikely to be deterred by the length of the sentence that they risk, however long this may be. Indeed, some are prepared to kill themselves in order to more readily kill others. It is, however, important that those who might be tempted to accept the role of camp followers of the more fanatic, are aware that, if they yield to that temptation, they place themselves at risk of very severe punishment. Punishment is the other important element of the determination of the sentence for offences such as this.”

82 This observation was, of course, made in the context of terrorist activity designed to kill innocent people. It has a relevance, however, for terrorism in all its aspects.

83 It is essentially important to note that the terrorism legislation, relevantly for the present matter, is concerned with actions even where the terrorist act contemplated or posited by an accused person has not come to fruition or fulfilment. Indeed, the legislation caters for prohibited activities connected with terrorism even where no target has been selected, or no final decision made as to who will carry out the ultimate act of terrorism. There is a need, then, to consider what would have happened had the intending terrorist act or acts actually occurred. There is a commensurate need, in the present matter, to assess the offender's intentions, reflected both in his actions and by his plea, as to the type of activity necessarily contemplated by the preparatory acts, or by the acts of possession knowingly connected with a terrorist act or acts.

84 It will be necessary to ask the question: What do the facts, agreed as they are between the Crown and the offender, tell us as to those matters? In the light of the answers to that question, what then is the objective seriousness and gravity of the criminal conduct that falls to be punished by this sentencing exercise? Before answering these questions, I will turn to say something of the subjective circumstances of the offender and of the events that led him to engage in the activities which underpin the present pleas of guilty. I bear in mind however, that the offender falls to be punished, and his punishment assessed, solely in relation to the offences to which he has pleaded guilty, and not for the fear and detestation generated by terrorism generally.

The offender’s subjective circumstances

85 Many of the factual matters I will now turn to describe emerge from the report of a consulting clinical psychologist, Mr Peter Champion. He has interviewed the offender on one occasion only at the MRRC. This happened on 24 September 2008. The interview, however, together with some testing occurred, over a period of some four hours, and the resultant report, in the main, contains a thorough and helpful background to the offender's circumstances.

86 The offender is now a 28-year-old man. He has been in custody since the time of his arrest on 8 November 2005. He is classified as an AA prisoner although he is currently in strict segregation. (It is my understanding that AA segregation enables him to mix with those persons who were arrested at the same time he was and who still await the hearing of the conspiracy charge against them.)

87 The offender was born in Tripoli (Lebanon), the second of four children. His mother was of Lebanese descent, his father of Syrian descent, and both were of the Muslim faith (Sunni branch). It does not appear that, during his early childhood years, he was exposed to any of the violence which had occurred in Lebanon during the 1980s. He had a generally happy and unremarkable upbringing during his early years. The family came to Australia in about 1986, although his father did not accompany them, and has settled in Canada in more recent times. Despite the loss of his father in this sense, the offender enjoyed the support of his mother during his upbringing in Australia, and his relationship with her extended family. His childhood and earlier adolescence were again unremarkable and generally quite happy. He finished years 7 and 8 at De La Salle College at Ashfield. He then completed years 9 to 12 at Belmore Boys' High where he attained his higher school certificate, albeit with a rather modest TER. It appears that his interest in his studies had diminished somewhat by the end of his schooling. This may have been, in part, because many of his friends had left school, had started apprenticeships and were thus leading a freer life, with access to money and the enjoyment of material things. The offender told Mr Champion that his application to school work, by the time of the HSC, had not been particularly sound. It is to be inferred he was a reasonable student prior to this time.

88 After the offender left school, he began to associate with a range of "sub-cultural peers". (I took this to be a reference to young adults classically referred to as “dropouts”) He then began to use cannabis, in the end reaching a stage where he was abusing significant quantities of this drug, and was regularly substance affected. He remained, however, living at his mother's home and took up a number of apprenticeships, somewhat unsuccessfully. Later he commenced an apprenticeship as a painter, ceasing TAFE involvement after a time, and working as an uncertificated tradesman. It seems he was able to find ample work, even without the formal certificate.

89 The offender married when he was 20, his bride being 18 and of Greek descent (Orthodox faith). There were two sons born to the marriage, now aged five and six.

90 It seems that, although the offender was born into a family of the Muslim faith, they were not particularly involved in observing formal religious rites, attending the mosque on special occasions, that is, only a few times each year. At the height of his drug abuse, the offender was approached by a neighbour who encouraged him to address his drug problem. It was in that situation he began attending the Lakemba mosque, where there was a programme for individuals who were affected in the way he was by drugs or alcohol. According to the offender's account, there was a strong religious element involved in this treatment, but it was not of a political or religiously extremist bent. In any event, this encounter, and the encouragement of those who helped him, seemed to have achieved the desired effect. The offender returned to his employment, he had a stronger grasp of the tenets of his faith, and spoke of committing to his religion on a consistent basis, particularly once he had ceased using drugs. About this time, his wife converted to Islam and began to wear Islamic clothes. For the remainder of the year 2000, and into 2001, he led a "normal, observant Muslim life-style". (The offender’s uncle, who gave evidence, said that this adoption of a more radical religious life by both the offender and his first wife created something of a rift in the offender’s broader family).

91 It appears that the events of September 11, 2001 changed things radically for the offender. All the young Muslims at the mosque had begun to become embroiled in politics, arguing issues back and forth, this being encouraged by a number of the clerics. The offender told Mr Champion of a perception that he and all Muslims were at risk. He himself was abused and called "Osama bin Laden" and a "terrorist" by non-Muslim workers he encountered. At a more abstract level, the offender perceived the threat in terms of all Muslim people being under attack, where the "war against terror", as it was described, was translated by some Muslims into meaning a "war" against all Muslims. This notion, so far as the offender was concerned, was then reinforced by the invasions of Iraq and Afghanistan. He was an uncritical user of the Internet and other news sources, and this served to reinforce his attitudes concerning the threat and the need for action.

92 The offender spoke to Mr Champion about his becoming “radicalised”. He spoke of his religious faith taking on a much harder and more uncompromising edge. He spoke of the notion of "violent jihad" and regarded that as a response to the perceived threats to, and the persecution of, Muslims and the perceived discrimination against them within the Australian community. This led him to believe that he had an obligation as a Muslim to prepare to fight back, and to defend other Muslims. He spoke of having "got stuck in the hype" and "influenced by the hype", getting caught up in the agitation and emotions of the time.

93 It appears that the offender attempted to explain to Mr Champion some of the circumstances involved in the offending behaviour forming the sub-stratum of the offences to which he has pleaded guilty. In this context, he told Mr Champion that he believed there was a state of war, that Muslims throughout the world were at risk, and that there was a need to defend them and to confront the aggressors. He spoke of thinking that he would go to Afghanistan, but nothing came of this. He spoke of collecting a range of items he thought might be useful in a war situation (more particularly for sabotage) without any specific intent as to its use, following, in effect, what he believed others were collecting, yet not knowing what a lot of it was or how to use it. The offender further indicated that "towards the end" his interest had been waning to some extent, and that he was "just going with the flow" by the end, more particularly in the few months prior to his arrest.

94 As I have said earlier, he was arrested on 8 November 2005. Although I do not have any particular insight into this aspect of the situation, it seems that his wife was seriously affected following his arrest and incarceration, bail refused. His wife divorced the offender in 2008. The offender told Mr Champion that she seemed to have "lost the plot" on him, and that she suffered some type of "nervous breakdown", as a result of which she had handed over the care of the children to the offender's mother. The offender spoke of this whole episode with a measure of regret and perplexity, suggesting a residual affection for his ex-wife, though perhaps showing limited insight into the impact of his own situation on her circumstances.

95 The offender entered into a form of marriage in 2008 (essentially at a distance, and presumably by proxy) to the sister of a fellow prisoner who had suggested the match. His second wife was a divorced woman, having two sons aged two and five years. She was of Lebanese descent, and of the Muslim faith. The offender had met her during visits she made to him in prison. He told Mr Champion it was his intention, once released, to formalise their union and set up a home with his "family" and to return to work.

96 Mr Champion's report at (41) states:

“He indicated that he was now 'over it', and was taking a more balanced approach to his religion and the political views which flowed from that religion. He indicated that he no longer accepted the notion of violent jihad, in that while innocent people tended to get killed in war...he no longer believed that he should be involved in such things, or that indiscriminate killing was appropriate. Indeed he claimed that it had never been his intention to take human life, his recorded comments (as per the documents) being more in the form of arguing points of Islamic 'jurisprudence' as he had heard others do.”

97 (The Crown objected to the weight of the matters in this paragraph as the offender was not called to give evidence. I agree that little weight can be given to these statements in the circumstances where the accused did not himself give evidence of his present state of mind. The statements, for this reason, should be treated with considerable caution (R v Qutami [2001] NSWCCA 353 per Smart AJ at [58]. Of more concrete value for the present exercise is the plea of guilty itself.)

98 Mr Champion conducted a number of tests in relation to the offender and made various assessments. He concluded that the offender demonstrated "an uneven pattern of cognitive development". He also reported that he could not exclude the possibility of a neurological contribution to the observed pattern of cognitive deficits. The individual tests provided "a somewhat mixed picture". The basic IQ scores gave a reasonable reflection of the offender's general functioning, that is slightly below average. There were a range of skilled deficits which were, however, atypical. On the arithmetic sub-test, the offender achieved quite a poor score, whereas on the verbal scale he demonstrated as being reasonably articulate, but with a lesser ability on a test of social awareness. The offender "struggled with a test of verbal reasoning and with tests involving visuo-spatial construction”.

99 It was these poor results that gave Mr Champion cause to wonder whether there might not have been a possibility of brain injury resulting from a push bike accident the offender had suffered when he was ten years of age. Mr Champion confirmed, however, that there was no question of mental illness, psychosis or clinical depression. In addition, the offender appeared to be suffering no present problems as a consequence of his incarceration. Overall, Mr Champion saw the offender as a somewhat unsophisticated man, caught up in a form of religious fervour such as is not uncommon in those who convert or recommit to their faith. This process, he wrote, had been “exacerbated by his young age at the time and the real-world triggers which led to friction between Muslim and non-Muslim communities”. Mr Champion suggested there had been a moderation in some of his views since entering prison, and with his having time to think matters over.

Submissions

100 Detailed written and oral submissions were provided both by the Crown and by Mr Stephen Hanley, leading counsel for the offender. There was much agreement between the parties as to the stance the Court should take on a number of the issues arising on the sentence hearing. I shall acknowledge these areas of common agreement in due course.

101 The principal areas where there were differences were these:

(a) the gravity of the offence;
(b) the nature and circumstances of the offence;
(c) whether reductions in the sentence should be allowed over and above the allowance generated by the plea itself (in general terms, both parties suggested that a proper discount for the plea in the present matter would be one of 25% on the basis that the plea represented a willingness to facilitate the course of justice.)

102 There was a general agreement between the parties that any sentences imposed should be ordered to be served concurrently. There was no substantial disagreement with the proposition advanced by Mr Hanley that the non-parole period required under s 19AG of the Crimes Act 1914 might be set at three-quarters of the sentence. These areas of commonality between the parties recognised, as they must, that any agreement between the parties could not, and should not, fetter the Court's discretion in relation to the sentences to be imposed. The areas of agreement, however, were reached only after very careful consideration, as is recognised in the detailed and thorough written submissions, provided to the Court. That, in itself, is a matter that commends the agreed matters to the Court.

103 It will be seen from these observations that one of the principal areas of contention is the assessment of the overall gravity of the offences. Allied to this is the need for the Court to properly assess the nature and circumstances of each offence. I shall now turn to consider these matters.

Objective criminality of the offences

104 The offender's submissions traverse the circumstances of each of the four offences with a view to assessing the objective criminality involved in each of them. The first offence (possession of ammunition), it was argued, did not fall within the "worst case" situation, and was not at the “upper limit” on any scale of objective seriousness. This was essentially because it was not possible to perceive, even in a rudimentary way, any plan establishing the primary object of the contemplated terrorist act. Secondly, the absence of a full variety of weapons found in the offender's possession should lead to the inference that his capacity to carry out any preparatory act was limited, as were the likely consequences of any proposed act. There was, for example, no weapon found in his possession that was capable of firing the type of ammunition he had collected in such voluminous quantities in June 2005.

105 The circumstances surrounding the second and third counts were also examined in detail. Mr Hanley argued that the evidence did not establish that it was ever the offender's intention to act with the primary purpose of endangering life. At best, his limited attempts to make an explosive device pointed no further than towards a proposal to cause injury to property. Secondly, counsel submitted that the attempts were limited in nature and in frequency. In addition, they were amateurish and ineffective. Thirdly, it was argued that the offender's cognitive and other skills were lessened to a degree by the limit of his intellectual capacity.

106 In relation to the fourth count, Mr Hanley submitted that the criminality revealed fell to be assessed as no higher than in the mid range of objective seriousness for such an offence. First, the material was readily accessible from the Internet and other sources. Secondly, the offender's extremist views were formed as a result of discrimination within the community, and emerged from a post 9/11 sense of isolation experienced and shared by many Muslim youths in the aftermath of the community's reaction to the events of that day. Thirdly, the offender's intellectual and cognitive deficiencies would probably have predicated him to such a response. Finally, it was submitted that there must be, in the light of Mr Champion's assessments, a question mark over the offender's ability to read, comprehend and conceptualise the large amount of extremist material he possessed.

107 Overall, Mr Hanley submitted that a comparison with the criminality revealed in R v Lodhi (2006) 199 FLR 364 would suggest that the criminality involved in the present offences, viewed as a whole, would be at a lower level. (The Crown, in support of its submission that an overall starting point for the sentence, prior to allowance for the pleas and other subjective matters, should be twenty-five years imprisonment, had suggested that the objective criminality involved in the present offences might be properly regarded as more serious than that revealed by the criminal behaviour examined in Lodhi's case).

108 In responding to the submissions made on behalf of the offender, it is necessary to make a number of general observations. First, the parties have agreed between themselves, correctly in my view, that the offender's criminal behaviour in relation to these four offences represents, and should be assessed, as one continuing course of criminal conduct. That concession will have obvious consequences for the structure of the sentences to be imposed for the individual offences. But it also has a consequence for the assessment of the level of criminality itself.

109 The more serious offences, obviously enough, are those set out in the first two counts. They each carry a maximum penalty of life imprisonment. They involve, as part of their statutory makeup, the notion that they are likely to be, in the usual course of events, closer to the implementation of a terrorist act than are the offences captured by counts 3 and 4. Indeed, the facts supporting the pleas made to counts 1 and 2 show this to be so in the present matter, even though a target or targets had not been selected. Thirdly, the criminal behaviour in relation to count 4 sheds considerable light on the intentions properly to be inferred from the actions relating to counts 1 and 2. A similar observation might be made in relation to the various discussions of an extremist nature captured by the listening device and telephone intercepts.

110 All of this material gives a significant and revealing insight into the intentions and beliefs held by the offender during the time he committed the offences in counts 1 and 2. They show that his views were deeply and firmly held. They demonstrate that he had espoused an obligation to carry out acts of violence, and that he approved of suicide bombings. They point to his belief that violence was justified, and that jihad and the killing of innocents was permissible and indeed, warranted in the name of religion. Finally, they plainly showed an intolerance towards non-Muslims, and a conviction on the offender's behalf that he personally should wage jihad against non-Muslims. It will be recalled that, during the discussion on 5 August 2005, he spoke of:

“An obligation on every Muslim to defend his faith, to fight for the religion of God against infidels.”

111 Of particular significance for a proper understanding of the offender's mindset and intentions during the relevant period in 2005 is the contents of some of the extremist material found in his possession. The detail is set out in annexure “A”, but the detail, sketched briefly as it is, gives a barely adequate picture of the content of the material when it is viewed. It seems to me that the material may adequately be described as falling into three categories, each of which is capable of impinging on the mind of the committed extremist in an ascending scale of dangerous intent. First, there are the images of Muslim people, often women and children, wounded or killed by the actions of United States soldiers and their allies. Images of this kind would be likely to inflame the committed Muslim viewer and ignite his or her anger at the actions of the enemy.

112 The second category of imagery shows military type explosions and the like, clearly in circumstances where the Americans and their allies were sustaining significant casualties at the hands of the insurgents. Images of this kind would be likely to promote an extremist pleasure in the victory of the insurgents over the enemy.

113 The third and final category is the gruesome and atrocious imagery of hostages being executed by the Islamists in the most terrible and brutal fashion. They include images of the actual beheadings of captives in sickening detail. No doubt, one intention of the display of images of this kind would be to desensitise the viewer, and to make him or her more readily able to take action against "infidels" in his own community. But a second clear intention is plainly to inflame the extremist viewer to a sense of jubilation and joy at the humiliating and degrading death of the enemy, viewed as an individual human being.

114 Final mention should be made of the "practical" training manuals found in the possession of the offender. These include detailed lessons on topics such as sniper training, field techniques, marksmanship and the like. In this context also the offender possessed much material of a general nature, discussing the need to establish an Islamic state and criticising the Americans and their allies.

115 Collectively, the material which was in the possession of the offender advocates a hatred of all those persons (Muslim and non-Muslim alike) who do not share extremist views. It propounds a detestation of democratic government and social liberalism. It propounds the notion that Muslims are obligated to pursue a violent form of jihad to undermine and overthrow liberal democratic societies and to replace them with Islamic rule and Sharia law. All these are the intentions and state of mind that I accept and find underlay the actions of the offender in acquiring ammunition, and in attempting to create an explosive device or devices. The presence of those intentions, and the existence of that state of mind, demonstrate graphically the serious character of the criminality involved, especially in relation to the offences pleaded to under counts 1 and 2.

116 These observations need to be tempered and moderated by the recognition that I cannot be satisfied beyond reasonable doubt that the offender ever intended, in committing the offences, to use the weaponry or explosive devices to directly bring about the loss of human life. Assessment of the objective seriousness of the criminality involved must, as a consequence, be confined to a generalised plan or intention on his part to damage, perhaps seriously damage, property. That said, it must also be observed that the detonation of a homemade explosive device always carries with it the possibility that human life will, or may be endangered, or at the very least threatened, in the execution of a plan to destroy or damage property. Bystanders and those in the vicinity may well be injured or killed.

117 I am unable to accept that the criminality involved, especially in relation to counts 1 and 2, is otherwise than at a very serious level. The conduct was both deliberate and sustained. The gathering and attempted gathering of the ammunition was carried out over a period of about five months. Considerable effort and thought went into the securing of the ammunition. Even after authorities had detected and seized fifteen boxes of the ammunition found in the offender's van on 3 June 2005, he later set about ordering further ammunition, using a form of code and by reliance on covert conversation, in an endeavour to avoid being found out. These covert attempts to avoid detection were clumsy in the extreme, but they demonstrated that the extremist intentions were still active, notwithstanding the June exposure.

118 While I accept Mr Hanley's submissions that the offender's attempt to make one or more explosive devices was both ham-fisted and amateurish, nevertheless the attempts he made showed that he was prepared to seek out and use the experience of others who might, because of their knowledge, help him to achieve his aims. Throughout most of the entire period, the offender clearly contemplated actions involving the detonation of one or more explosive devices, or the use of firearms, or both, and contemplated that actions involving this type of equipment would be threatened or perpetrated upon the Australian community.

119 It is clear that the possession of firearms and material capable of being assembled to make an explosive device placed the offender in a position where he would be, and was, closer to and better equipped to carry out, or provide assistance for the carrying out of, a terrorist act. The possession and acquisition of weaponry and other materials must be seen in that light.

120 A number of the matters relied on by Mr Hanley in the course of his careful arguments plainly need to be assessed and taken into account properly and carefully in the overall evaluation of the offender's criminality. But they are not, in my opinion, matters that would lead to the reductive significance sought to be placed on them in the presentation of the arguments.

121 First, in view of the nature of the statutory offences, the absence of a finally selected target does not significantly diminish the level of criminality. These offences are admittedly preparatory in nature, but the circumstances of their commission nevertheless establish a serious level of criminality.

122 Secondly, the fact that there was only one firearm found in the offender's possession in November 2005, and that it did not match the 7.62 by .39 mm calibre ammunition seized on 3 June 2005, does not significantly diminish the level of criminality. It is clear that the offender was able to access firearms by utilising the service of others (see the facts recorded in paras 36 - 38 above). In any event, the ammunition and other materials he acquired were available for others to use even if, in the ultimate, he did not make use of them himself. In that regard, I should briefly mention the report by Frank Lawton. This expert examined the material in the possession of the accused (counts 2 and 3) and concluded that some of the material could be used to make a small explosive device, and that other of the material could only be used to make an explosive device provided that there were an efficient means of initiation. So far as the handwritten note referred to in paragraph 63 is concerned, Mr Lawton thought that the items listed there could be used to make a crude explosive device, although other chemicals might be needed. This report confirms that the offender himself was, generally speaking, a rank amateur in the area of making explosives, but it does not rule out his use of other people, or the use by other people of the materials he assembled, for a terrorist purpose. His state of mind, his actions and intentions clearly embraced each of these possibilities.

123 The photographs in Exhibit “A” include crimped copper pipes, which could be used as the casing for an explosive. They include two 500 gram containers containing smokeless rifle powder. Conversations the offender had with his third party supplier in April 2005 showed that he was well aware that this latter material could be used as a component for an explosive. Indeed, it is quite likely that some of the material had been used in the attempts to make an explosive device.

124 The final matter I wish to address under this heading is the offender's cognitive ability. As I have said earlier, I am not satisfied that the evidence demonstrates that the offender had suffered any serious brain injury in his childhood accident. In referring to this incident, his uncle, Michael Yasseen, said that he had been told by the offender's mother that this accident, which occurred when the offender was about ten or eleven, resulted in his losing his front teeth and that he had a head injury, memory loss and was a bit slow in thinking. Mr Yasseen said that he had employed the offender as a painter and it is clear that his work was satisfactory in that regard. He did add that the offender could not "comprehend a lot of things...it takes a while to grasp".

125 On the other hand, Mr Champion's testing showed that the offender's overall testing score was in the middle of the low average range. The discordant results on some aspects of his testing raised a question mark in Mr Champion's mind as to whether there might have been some form of brain injury, but he did not conclude that there had been such an injury. The offender scored a sound result on tests in vocabulary development and general knowledge, although his ability to think things through when he did not know an answer was "somewhat limited".

126 It needs to be recalled that the offender had attained his higher school certificate, and that he appears to have done passably well at school until his last year or so, when he lost interest in his studies. It is true that he had suffered dizzy spells since his accident, but he reported that these were infrequent now, although they had not disappeared altogether. On the other hand, his drug use had been significant. It included regular ingestion of cannabis in considerable quantities ("stoned all day"), and included the use of cocaine, speed and ecstasy on a periodic basis throughout his late teens. All that ceased, however, by the time he was twenty.

127 Mr Champion accepted that the offender was not mentally ill. He accepted that he did not suffer from depression. At the most, the offender demonstrated an uneven pattern of cognitive development. It is necessary for the Court to give some weight to this material but I do not think that overall it diminishes or reduces, in any significant way, the serious level of criminality involved in the commission of the offences.

Pronouncement of sentence

128 I turn now to consider the sentence that should be imposed on the offender for these offences.

129 As I have found, the overall criminal culpability of the offender is at a high level. The Crown, however, has not suggested that these offences fall within the worst case situation. There is no suggestion by the Crown that, for example, a life sentence should be imposed in respect of either counts 1 and 2. On the other hand, the Crown has argued that a starting point for the appropriate sentence should be a term of imprisonment for twenty-five years. This, I think, is perhaps too high a starting point. But, in any event, as I will explain shortly, the selection of a nominal starting point is not desirable in assessing an appropriate sentence, having regard to the complexity of the present sentencing exercise.

130 Some of the Crown submissions may perhaps reflect the fact that originally the accused had been charged with a serious multi person conspiracy charge to do acts in preparation for a terrorist act or acts. It may well be true that, had the offender been found guilty of such a charge, and were the level of criminality in the overall conspiracy found to be sufficiently high, it would have warranted a very significant penalty, perhaps indeed even the imposition of the maximum penalty. That, however, is not the present position. Here the Crown has accepted pleas to the present four charges and has determined that it will not proceed against the offender in relation to the conspiracy charge. This offender, as I have said earlier, falls to be punished for the specific offences to which he has pleaded guilty in the light of the agreed facts and his subjective circumstances.

131 Nevertheless, the sentences to be imposed for each of counts 1 and 2 must be substantial so as to reflect the important principles of punishment, general deterrence and denunciation. I do not consider it appropriate, however, to select or nominate an “opening” figure as the Crown has suggested. Such a process may properly be said to raise the spectre of the approach criticised by the High Court of Australia in Markarian v R [2005] HCA 25; [2005] 215 ALR 213 at [39]. Secondly, the Crown’s benchmark of comparison appears to have been the sentence imposed on Faheem Lodhi. The circumstances there, though similar, were not the same as revealed here. Moreover, the 20 year sentence imposed on Mr Lodhi was the end point of the sentencing exercise. It was not a nominated point of commencement. In terms of objective criminality, however, the present offences overall reflect a level of criminal seriousness that is certainly equal to, if not indeed somewhat higher, than that demonstrated in Lodhi.

132 What then is the effect of the plea and the other subjective circumstances required to be taken into account? As to the plea, the position in relation to sentencing for a Commonwealth offence in New South Wales is quite clear. The proper approach is to recognise the value of a plea of guilty by reference to the willingness of the offender to facilitate the course of justice. It is not appropriate to simply view the utilitarian value of the plea on the basis that it has saved the community the expense of a contested hearing (Tyler v R; R v Chalmers [2007] NSWCCA 247 at (110) and (111); R v Cameron [2002] 209 CLR 339 at (11) and following). Although it is not necessary to state a mathematical qualification for a discount allowed on this basis, there is, in my view, a need in the present matter to demonstrate transparency at least in that regard.

133 Both parties agree in the present matter that a discount of 25% should be allowed as representing an allowance for the offender's willingness to facilitate the course of justice. I agree with this proposition. I will explain my reasons for so agreeing.

134 First, it is common ground between the parties that the plea agreement in the present case was reached, and the pleas of guilty entered, at a relatively late stage in the pre-trial proceedings. Mr Hanley argued, however, that the plea was entered at the first available opportunity, in the sense that pleas were entered immediately after the presentation of a fresh indictment. Such a submission, however, is contrary to the decision of the Court of Criminal Appeal in R v PB [2008] NSWCCA 109 at (30). A realistic view of the overall situation here must mean, as is clearly the fact, that the pleas of guilty were entered relatively late in the pre-trial proceedings. Those proceedings have been on foot since the end of February 2008.

135 On the other hand, the Court is entitled to take into account and acknowledge (as is agreed) that the first approach in this regard was made by the offender's (then) counsel at the conclusion of the committal proceedings in 2007. The offer made on that occasion was, however, rejected by the Director of Public Prosecutions. A fresh approach was then made to the Crown by leading counsel for the accused as early as February 2008. Subsequent discussions, and detailed negotiations, then took place over a period of some months, culminating in agreement being ultimately reached between the Crown and the offender for the proposed plea agreement.

136 It is also appropriate for the Court to note that an indirect but very real consequence of the offender's willingness to facilitate the course of justice is that the nature and prospective length of the trial involving the offender has been significantly curtailed. This would have been a trial of considerable length because of the number of witnesses to be called, and the number of exhibits to be tendered. The Court should reflect this in the allowance of a significant discount to recognise that the course of justice has well and truly been facilitated as a consequence of the subjective intentions of the offender as reflected in the plea.

137 Finally, in this regard, it is also necessary to note the conduct of the offender and his legal representatives during the pre-trial procedures in the conspiracy proceedings. These procedures have been both protracted and difficult, involving the Court in the delivery of in excess of fifty-eight decisions. The accused in the conspiracy trial were entitled to test aspects of the Crown case, and no criticism is presently offered in that regard. A willingness to facilitate the course of justice, however, is a broader concept than that of mere utilitarian benefit. It incorporates considerations that the plea of guilty facilitates not only the ultimate object of our system of justice, for example, sentence and punishment, but it also carries with it (or may do so) the avoidance of lengthy pre-trial hearings and matters of a similar kind.

138 It is to be noted that the offender's legal representatives, throughout the pre-trial period, have consistently taken a position that, unless indicated otherwise, evidence in relation to surveillance, voice identification or the occurrence of particular evidence could be led in the Crown case in short form. There were a number of concessions made by the offender and his lawyers during the pre-trial period that may properly be regarded as steps taken, short of a plea of guilty, to facilitate the trial in a real and commendable manner. Their conduct in this regard stood in marked contrast to the stance taken by a number of the other accused. These factors were further indications of a genuine and real intention on the offender’s part to facilitate the course of justice, even though they related to the conduct of the conspiracy trial.

139 All of the matters I have mentioned satisfy me that the Court is justified in allowing a full 25% discount in the sentencing of this offender. Although the strength of the Crown case is a permissible factor to be taken into account where a plea is relied upon as evidence of a subjective willingness to facilitate the course of justice, no submissions have been made by the Crown, however, requiring the Court to identify the strength or otherwise of the Crown case in the present matter. It is sufficient to say that the offender, through his counsel, notified the Court at the outset of the pre-trial applications of the likely nature of the defence case. He was not obliged to do so. There clearly was a genuine defence case for argument. In view of the fact that the Crown has made no submission in this regard, I do not propose to make any finding about the strength or otherwise of the Crown case.

140 The offender has argued that, in addition to the 25% discount, there should be a discount on sentence for a number of other specific matters. They generally fall into three categories. First, the offender has asked that a specific allowance be made for remorse, acceptance of responsibility and for his rejection of the beliefs that motivated the offences. Mr Hanley has argued that these matters should be recognised over and above the degree to which the pleas of guilty indicated a willingness to facilitate the course of justice.

141 Secondly, counsel argued that the difficult custodial situation of the offender, both presentence and following sentence, should warrant a further reduction in the sentence to be imposed. This was a reference to the fact that the offender has been in presentence custody as an AA classified prisoner. Moreover, he has spent some nine months of the last three years in segregation, quite apart from his AA classification. As well, it is a reference to the fact that the offender will be classified AA (or likely to be so classified) once he has been sentenced. This will mean that his terms of incarceration will be more onerous than that of a prisoner in the general prison population.

142 The third matter relates to the probable effect that any sentence may have on the offender's family or dependants. Prior to his arrest and imprisonment, the offender enjoyed a warm and close relationship with his wife and two young sons. He was the sole economic provider for the family. Since his imprisonment, the family has completely broken down and his wife has divorced him. This has led to her abandoning the children, who are now cared for by the offender's mother, a pensioner. Mr Hanley has argued that an allowance should be made for the impact of the likely sentence on his mother and his two sons in the future.

143 As to the first matter, I accept that an allowance can, in appropriate circumstances, be made over and above that given for the fact that the plea represents a willingness to facilitate the course of justice. An additional allowance can be made, in a proper case, for the presence of remorse, contrition, and other matters. It is important, however, that such an allowance does not have the effect of inappropriately “doubling up”, or merely repeating the allowance that has already been made. There is a plain overlap in some of these considerations.

144 In the present matter, I accept that some allowance can and should be made for the fact that the pleas of guilty may be taken, to a degree, to express remorse and acceptance of responsibility. Perhaps, even more importantly, the pleas of guilty may be taken, to some degree, to be a drawing back by the offender from the extremist beliefs that motivated the commission of the offences. There are two points I would make about this. First, care, indeed considerable caution, needs to be taken about such a matter. This is because the offender has not given evidence before me, and the present state of his mind has not been explored or tested in any way. There is, as I have said, a reference to it in Mr Champion's report, but this is a matter to which little weight can be given.

145 Secondly, the plea itself, may, however, be taken as a cautious indicator that the offender is in the course of relenting or moving away from his past extremist position. This is a particularly difficult area because it requires the Court to make a prediction about the future behaviour of the offender, in circumstances where there is very little to go on by way of hard evidence. On the other hand, the Court of Criminal Appeal, in Lodhi, made it clear that a significantly heavy sentence will be required to protect the community in a case where the Court is satisfied that a terrorist offender has not resiled from his previous extremist convictions. It must be the case that some allowance or recognition should be made where that is not the position.

146 At the very least, it can be said, in the present matter, that I am by no means satisfied beyond reasonable doubt that the offender has refused to budge from his former extremist position. Rather, there is some reason to accept, having regard to the plea, that he has moved away from, or is in the process of moving away from, such a fanatical and extremist position. A moderate allowance, therefore, should be made to reflect remorse, contrition, acceptance of responsibility and the commensurate fact that, although the community may still require protection, this is at a lower level than might have been otherwise, were it not for the plea.

147 I turn then to consider the situation of the offender's incarceration both pre and post sentence. I examined the position of an AA offender in my remarks on sentence in R v Lodhi. There is no need for me to repeat those remarks here. It is possible, however, to predict that, in certain respects, the offender's time as a convicted person, AA classified, is likely to be more onerous than that sustained by a person in the general prison population. This is particularly so because the offender will not be able to mix among the general prison population, and there will be limitations on the recreations and enjoyments he will receive during his time in prison. He will not be able, for example, to receive any paid work.

148 The position, however, appears to me to be that the circumstances of AA classification may not currently be as onerous as I described or anticipated them in the Lodhi decision. Indeed, evidence before me as to the present position of Mr Lodhi in the Goulburn high security unit rather reinforces the fact that these conditions, although undoubtedly difficult, are not so onerous as to warrant any significant discount in the sentence. It appears that an AA prisoner, for example, does have regular rights of visitation, has the ability to make contact with people by telephone, has physical recreational facilities available, and can, in certain circumstances, undertake approved studies and courses. There are, of course, restrictions that go beyond those experienced by the general prison population, but overall, as I say, the position is not as onerous as it appeared to me to be several years ago. I propose to make a modest allowance, however, in the decision for the conditions of incarceration, and this will extend to the offender's presentence incarceration, particularly in relation to his periods of segregation.

149 I should add, finally, that the offender is segregated at present, but this is solely for his own protection and is to be reviewed quite shortly. The authorities acted cautiously when it was known that he was likely to plead guilty and placed him in segregation for that purpose. I should also mention that any presentence segregation has not occurred as a consequence of any untoward behaviour on the offender's part. Rather, it has been designed to protect him from violence or other recriminations emanating from elements in the general prison population. In any event, as I noted earlier, Mr Champion reported that the offender did not appear to be suffering any problems as a consequence of his incarceration.

150 The final matter is the position of the offender's family. Whilst I have considerable sympathy for his mother and two children, I do not think that any specific allowance can be made for this in the sentencing process, as the circumstances revealed by the evidence are by no means extraordinary or out of the usual. They reflect the unfortunate situation, commonly experienced, where a husband and provider is incarcerated because of his criminal conduct.

151 I now turn to consider the sentence to be imposed in relation to each of Counts 1 and 2. I leave to one side, for the moment, the discount for the plea. I have found that this should be allowed at a percentage of 25%. Taking into account the overall objective criminality involved in each offence, and making proper allowance for the subjective features I have examined, it is my view that, prior to discount, each count warrants the imposition of a sentence of 18 years and 9 months imprisonment. This means that, when the discount is allowed, the sentence for each of counts 1 and 2 should be (rounded-down) for a term of imprisonment of 14 years. The sentence in each case is to commence on 8 November 2005 and is to expire on 7 November 2019.

152 In relation to counts 3 and 4 in the indictment, an appropriate sentence in each case, in my view, is one of imprisonment for a term of eight years. The sentence in each case is to commence in each case on 8 November 2005 and is to expire on the 7 November 2013.

153 As will be apparent, all sentences are to be served entirely concurrently with each other. This structure of the overall sentence is intended to reflect the finding I have made that there was but one course of continuing criminal conduct involved in the commission of the offences. It is intended as well to reflect the totality of the criminality in all four offences. In my view, the criminality involved in each of counts 1 and 2 is sufficient to encompass the criminality of the remaining two offences. The principle of totality does not require me to inflict any additional punishment for those two offences.

154 Section 19AB of the Crimes Act 1914 (Cth) requires that the Court fix a single non-parole period in the present circumstances. The purpose of the non-parole period is to provide a mitigation of the punishment of the offender in favour of rehabilitation through conditional freedom. The non-parole period, however, must itself incorporate all the relevant sentencing principles, including punishment, denunciation and general deterrence.

155 Following the enactment of s 19AG of the Crimes Act 1914, the Court is obliged, in relation to the present offences, to fix the single non-parole period at a percentage of at least three-quarters of the sentence. Where two or more sentences have been imposed on a person, the relevant percentage must relate to the aggregate of those sentences. This means in practical terms that the single non-parole period in the present matter must be, at the very least, for a period of ten years and six months. In my opinion, it is appropriate in the circumstances of this matter that the non-parole period be set at 75% of the aggregate of the sentences. It has not been submitted by the Crown that the Court should do otherwise.

156 The single non-parole period will commence on 8 November 2005 and it will expire on 7 May 2016.

157 Mazen Touma, in relation to the first charge in the indictment, I sentence you to a term of imprisonment of 14 years commencing on 8 November 2005 and expiring on 7 November 2019.

158 In relation to count 2 in the indictment, I sentence you to a term of imprisonment for 14 years. This sentence is to commence on 8 November 2005 and will expire on 7 November 2019.

159 In relation to the third charge in the indictment, I sentence you to a term of imprisonment for eight years. This sentence should commence on 8 November 2005 and expire on 7 November 2013.

160 In relation to the fourth charge in the indictment, I sentence you to a term of imprisonment for eight years. This sentence should commence on 8 November 2005 and expire on 7 November 2013.

161 The sentences in respect of counts 2, 3 and 4 are to be served concurrently with the sentence in relation to count 1, and with each other.

162 In relation to the four sentences, I fix a single non-parole period in respect of those sentences for 10 years and 6 months commencing on 8 November 2005 and expiring on 7 May 2016.

Explanation

163 I am obliged to explain to the offender the effect of the orders I have made.

164 Mazen Touma, the sentences I have imposed mean that you will be obliged to spend a minimum period in custody of 10 years and six months. You will be eligible for first release on the 7 May 2016.

165 It will be a matter for the Attorney-General as to whether you will be released on that day. That may depend upon your behaviour in prison. It will also be a matter for the Attorney General to determine whether any conditions should apply to you while you are at conditional liberty upon parole after the 7 May 2016. If you are released on that day, you will remain on parole for a further period of three years and six months. If you were to breach your parole, you may be required to return to prison to serve the balance of the term of your sentence.

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