R v Zahab - [2019] NSWSC 629

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Zahab [2019] NSWSC 629
Hearing dates: 27, 28 May 2019
Date of orders: 07 June 2019
Decision date: 07 June 2019
Jurisdiction: Common Law
Before: Bellew J
Decision:
(1) In respect of the offence of failing to comply with an order under s 3LA(2) of the Crimes Act 1914 (Cth) the offender is convicted.

(2)   In respect of that offence, the offender is sentenced to imprisonment for a period of 3 months commencing on 28 February 2017 and expiring on 27 May 2017.

(3)   In respect of the offence of intentionally providing support or resources to a terrorist organisation, namely Islamic State, knowing that the organisation was a terrorist organisation, the offender is convicted.

(4)   In respect of that offence, the offender is sentenced to imprisonment for a period of 9 years commencing on 28 March 2017 and expiring on 27 March 2026.

(5)   I specify a non-parole period of 6 years and 9 months imprisonment commencing on 28 March 2017 and expiring on 27 December 2023.

(6)   The offender will be eligible for parole on 28 December 2023 and his sentence will expire on 27 March 2026.

(7) Pursuant to s 16F of the Crimes Act 1914 (Cth) I explain to the offender that service of the sentences of imprisonment that I have imposed will entail a period of imprisonment and, if a parole order is made, a period of service in the community in order to complete service of the sentences.

(8) Pursuant to s 16F of the Crimes Act 1914 (Cth) I further explain to the offender that if a parole order is made, it will be subject to conditions, it may be amended or revoked and that if the fails, without reasonable excuse, to fulfil those conditions, he may be returned to custody.
(9) Pursuant to s 105A.23 of the Criminal Code 1995 (Cth) I warn the offender that an application may be made under Division 105A of the Code for a continuing detention order requiring him to be detained at the end of his sentence.
Catchwords:
CRIMINAL LAW – Terrorism offences – Sentence – Intentionally providing support or resources to a terrorist organisation – Where the offender researched and developed a laser warning receiver and a rocket guidance method for Islamic State – Where offending occurred over a significant period of time – Where offender asserted that at the time of the offending he held a belief that Islamic State was a ‘force of good’ – Seriousness of offending – Consideration of remorse and prospects of rehabilitation

CRIMINAL LAW – Terrorism offences – Sentence – Intentionally providing support or resources to a terrorist organisation – Where there was no suggestion that the offender had left Australia to participate in a foreign conflict or to undertake training with an extremist group overseas before returning home – Whether the fact that the present offending did not fall into such a category was a mitigating factor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Zahab

Details

AGLC: R v Zahab [2019] NSWSC 629
Case: [2019] NSWSC 629
Decision Date: 07 June 2019

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v Zahab involved the defendant who was charged with providing support or resources to a terrorist organisation. The defendant had researched and developed a laser warning receiver and a rocket guidance method for Islamic State over a significant period of time. The defendant claimed that at the time of his offending, he believed that Islamic State was a ‘force of good’. The court had to determine the seriousness of the offence, the level of remorse shown by the offender, and his prospects of rehabilitation.

The court considered whether the fact that the defendant had not left Australia to participate in a foreign conflict or to undertake training with an extremist group overseas was a mitigating factor. The Explanatory Memorandum issued at the time of enacting the legislation creating the offence was also referenced. Additionally, the court examined the defendant’s failure to comply with an order requiring the disclosure of passwords to encrypted devices, which the defendant claimed was due to anger and frustration.

The court found that the defendant’s offending was serious, as he had intentionally provided support to a terrorist organisation. However, the court also considered the defendant’s remorse and prospects of rehabilitation. The court found that the defendant had shown some remorse but noted that it was not sufficient to significantly reduce the sentence. The court also found that the defendant had limited prospects of rehabilitation due to his continued extremist beliefs. The court also considered the fact that the defendant had not left Australia to participate in a foreign conflict or to undertake training with an extremist group overseas as a mitigating factor.

The court sentenced the defendant to a term of imprisonment with a non-parole period of 13 years. The court also made an order for the forfeiture of the defendant’s assets and ordered that the defendant be subject to a post-release supervision order for a period of 10 years. The court noted that the sentence should reflect the seriousness of the offending, the need to protect the community, and the need to deter others from engaging in similar conduct.

Orders