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 – Reference to Explanatory Memorandum issued at the time of enacting the legislation creating the offence
CRIMINAL LAW – Offences – Sentence – Failing to comply with an order requiring the disclosure of passwords to encrypted devices – Where offender stated that he had acted out of anger – Frustration of police investigation as a result of information not being provided
Legislation Cited: Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Code 1995 (Cth)
Cases Cited: R v Atik [2007] VSC 299
R v Barot [2007] EWCA Crim 1119; [2007] Crim LR 741
R v Kahar [2016] EWCA 568
R v Khalid & ors [2017] NSWSC 1365
R v Khyam and ors [2008] EWCA Crim 1612
R v Lodhi (2006) 1999 FLR 364; [2006] NSWSC 691
R v Martin (1999) 1 Cr App R 77
Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1
Category: Sentence
Parties: Regina (Crown)
Haisem Zahab (Offender)
Representation:
Counsel:
R J H Maidment QC and R Glover (Crown)
M Ramage SC (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Lawyers Corp (Offender)

File Number(s): 2017/63591
Publication restriction: Nil

Judgment

INTRODUCTION

Haisem Zahab (‘the offender’) has pleaded guilty to an indictment containing the following counts:

Count 1
Between about 1 December 2014 and about 28 February 2017, at Young in the State of New South Wales, did, contrary to section 102.7(1) of the Criminal Code (Cth), intentionally provide support or resources to a terrorist organisation, namely Islamic State, that would help the organisation engage, directly or indirectly, in preparing, planning, assisting in or fostering the doing of a terrorist act, knowing that the organisation was a terrorist organisation.
Particulars of support or resources
Research into and development of:
1.   A Laser Warning Receiver; and
2.   Rockets and a rocket guidance method.
Particulars of terrorists act
An action done with the intention of advancing a political, religious or ideological cause, namely the establishment or maintenance of an Islamic Caliphate and with the intention of coercing or influencing by intimidation the Government of foreign countries, namely Syria and Iraq, of a kind that:
a)   causes serious harm that is physical harm to a person; or
b)   causes serious damage to property; or
c)    causes a person’s death; or
d)   endangers a person’s life other than the person taking the action; or
e)   creates a serious risk to the health or safety of the public or a section of the public

and which is not advocacy, protest, dissent or industrial action of a kind that is not intended:
a)   to cause serious harm that is physical harm to a person; or
b)   to cause a person’s death;
c)   to endanger the life of a person other than the person taking the action; or
d)   to create a serious risk to the health and safety of the public or a section of the public.

Count 2
Between about 28 February 2017 and 1 March 2017, at Young in the State of New South Wales, did, contrary to section 3LA(5) of the Crimes Act 1914 (Cth), fail to comply with an order under section 3LA(2) of the Crimes Act 1914 (Cth).

The offending in count 1 is contrary to s 102.7(1) of the Criminal Code 1995 (Cth) (‘the Code’) and carries a maximum penalty of 25 years imprisonment.
The offending in count 2 is contrary to s 3LA(2) of the Crimes Act 1914 (Cth) (‘the Act’) and carries a maximum penalty of 2 years imprisonment.
The offender is to be sentenced having regard to the provisions of Part IB of the Act, and in particular by reference to the matters set out in s 16A.

THE EVIDENCE

The Crown case

The following documentary material was tendered in the Crown case on sentence:

an agreed statement of facts; [1]

the offender’s criminal history; [2]

a statement of Damien Spleeters dated 15 June 2018; [3]

a statement of Nadine Hallak dated 26 July 2018 [4] ; and

a statement of Olena Mikhailik dated 23 August 2018. [5]

1. Exh A.
2. Exh B.
3. Exh C.
4. Exh D.
5. Exh E.

The offender’s case

The following documentary material was tendered in the offender’s case on sentence:

a report of John Machlin, Psychologist, dated 14 May 2019; [6] and

a bundle of 18 testimonials. [7]
6. Exh 1.
7. Exh 2.

The offender gave oral evidence in his case on sentence, as did Ahmed Kilani, a Muslim Prison Chaplain. I have referred to aspects of that evidence further below.

GENERAL SENTENCING PRINCIPLES

Section 102.7(1) is contained within Part 5.3 of the Code which deals with terrorism offences of varying kinds. An offence against s 102.7(1) does not involve the commission, or acts in preparation for the commission, of a terrorist act. However in my view, the principles which apply to offending of that nature apply, with equal force, to an offence contrary to s 102.7(1). Those general principles include the following:[8]
8. R v Khalid & ors [2017] NSWSC 1365 commencing at [23] and the authorities cited therein.

the primary considerations on sentence are the protection of the community, the punishment of the offender, the denunciation of the offending, and deterrence, both general and specific;

matters relevant to assessing the objective seriousness of the offending will include:

the degree of planning, research, complexity and sophistication involved;

the period of time involved, including the duration of involvement of the offender;

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

the extent to which the offender has been responsible, by whatever means, for indoctrinating or attempting to indoctrinate others, and the vulnerability or otherwise of the target(s) of the indoctrination, be it actual or intended.

the religious and/or ideological motivation of an offender is relevant to the issue of community protection, as well as to the assessment of the objective seriousness of the offending. As a consequence, where it is not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance;

weight is to be given to the need for general deterrence, even if the force of ideological or religious motivations and considerations are such that deterrence may not be effective; and

subjective circumstances and mitigating factors, including considerations of rehabilitation, are to be given less weight.

Put simply, those who commit terrorism offences of any kind place themselves at risk of severe punishment. [9]

THE NATURE AND CIRCUMSTANCES OF THE OFFENDING [10]

9. R v Barot [2007] EWCA Crim 1119; [2007] Crim LR 741 at [45].

10. Section 16A(2)(a).

The agreed facts tendered by the Crown (omitting the formal introductory passages) were in the following terms:

BACKGROUND:
Islamic State
1.   The prescribed terrorist organisation Islamic State first emerged in Iraq around 2006 from a coalition of pro-al Qa’ida Islamists formed during the United States (US) occupation of Iraq. Since that time the group has undergone a number of name transformations and ideologically split from al Qa’ida.
2.   On 29 June 2014, the then leader of Islamic State, Abu Bakr Al-Baghdadi, announced the formation of the ‘caliphate’ or ‘Islamic State’. Following the routing of Iraqi military and security forces and subsequent capture of Mosul, Al-Baghdadi proclaimed himself as the successor to the prophet Muhammad and the consequent political-military leader of the Muslim community (ummah). Having conquered territory in Syria and Iraq, he then proclaimed that he would thenceforth be known as Caliph Ibrahim and that ‘..the “Iraq and Sham” in the name of the Islamic State is henceforth removed from all official deliberations and communications, and the official name is the ‘Islamic State’ from the date of this declaration.
(Islamic State Flag, otherwise known as ‘ar-raya’)
3.   The organisation seeks to impose their interpretation of Islamic law in the areas it conquers that demands a strict, literalist interpretation of that law. Islamic State has undertaken the old concept of ‘dar al-Islam’ (land of Islam), where Islamic law is followed and therefore at peace, and ‘dar al-harb’ (land of conflict), where Islamic law is not followed. Islamic State is also sometimes referred to as ‘dawlah’, a reference to its previous name ad-Dawlah al-Islāmiyah. Whilst the structure of Islamic State has evolved over time, a general overview of the structure of the organisation includes the Consultative Council, Military Council, Judicial Council, Security Council and the Financial Council. Additionally, there are separate functions for media, foreign fighters and intelligence. In order to achieve their ideals, Islamic State undertook a military campaign to reconquer what is sees as the lands of Islam and to punish all those who it deems to be unbelievers and enemies of Islam. As part of that campaign, Islamic State largely employed weapons that it seized as part of its war booty, bought via the black market or developed themselves.
4.   Coalition forces targeting Islamic State have provided support to Iraqi government land forces in Iraq and to Kurdish forces in Syria. The support has been in the form of a small number of ground troops in advisory roles, particularly to coordinate the use of offensive air support. Indirect fire support and attack helicopters have also been used by US forces against Islamic State in support of ground forces. The majority of direct targeting by coalition forces against Islamic State has come from airstrikes, including manned aircraft and drones, the predominant method using manned aircraft. These airstrikes by US forces commenced on 22 September 2014. On 3 October 2014, then Prime Minister Tony Abbott, announced to Australian media that Australian warplanes would join air strikes on Islamic State militants in Iraq.
Islamic State weapons research, development and manufacture
5.   The Islamic State weapons research, development and manufacture system is described as highly sophisticated and a well organised complex machine with a huge output. This output is numbered into the hundreds of thousands of items standardized across numerous manufacturing facilities. The process of this system is described as that of an ‘industrial state’ which resulted in the making weapons on a scale and sophistication matching national military forces. Islamic State’s weapons research, development and manufacture system can be broadly categorised as follows:
a.   Having a centralised management of manufacture, research and development of weapons which was under control by the ‘Islamic State Office of Soldiers’;
b.   Underneath the ‘Office of Soldiers’ sits the ‘Committee for Military Development and Production’ responsible for the research, development and quality control of weaponry manufactured by Islamic State. This committee was also responsible for the operation and collaboration between workshops. In some of these workshops, Islamic State were pulling apart conventional weapons with a guidance capability to conduct research into them;
c.   Underneath the ‘Committee for Military Development and Production’ sits the ‘Central Organisation for Standardisation and Quality Control’ which issued manufacturing instructions, standardised labelling, tolerances, blueprints and manufacturing processes. This organisation is also responsible for the palletisation of Islamic State manufactured weapon crates, to assist with the correct storage and ease of transportation.
6.   Islamic State conducted their research, development and production across numerous facilities throughout their territory which can be broadly categorised as storage, manufacturing, mixing, filling or repair, modification and development facilities.
7.   In particular, Islamic State performed in depth research and testing of different weaponry systems such as proof of concept testing of rockets in 2015, prior to commencing large scale manufacture. This research and testing resulted in Islamic State producing two main design types of rockets on mass as well as other types on a varied scale. In the lead up to this manufacture, Islamic State performed unique research and development into specific parts of the rockets which included the fin assembly, nozzle, motor body, warhead, fuse, electric initiator and fuel propellant mixture and composition.
[11]
11. Islamic State designed and manufactured rockets located in an assembly location in Mosul, Iraq on 12 November 2016
8.   The research and development undertaken by Islamic State went beyond simple crude weapons development and involved precision manufacturing processes that were reproduced on a mass scale. Islamic State were able to effectively source materials and construct weapons using what was available to them in their local environment, however Islamic State also obtained materials on mass from other countries. In addition, Islamic State made efforts to train their members in the use of various weapons.
Defendant’s ideology and development of motive
9.   Islamic State members and their supporters have been very active in the use of the online social media platform ‘Twitter’ as a means of disseminating propaganda videos, promote its religious ideology and make one-on-one connections with prospective recruits.
10.   On 10 July 2014, the defendant downloaded the encrypted messaging application ‘SureSpot’. Additionally, the defendant used his home Apple iMac desktop computer to access the social media platform application ‘Twitter’ and began sharing ideological support for Islamic State through Twitter Posts and his email accounts. For example, on 12 July 2014, the defendant sent an email from his account [email protected] to himself at [email protected]. The email contained a picture of the Islamic State flag with two persons holding firearms either side of the text: “Daulatul Islam” and “Baaqiyah!” translated to: “The State of Islam” and “Is remaining!”. The word ‘Baaqiyah’, short for ‘Baaqiyah wa Tatamaddad’ (remaining/enduring and expanding) is a term of special significance to Islamic State. The word featured as a title in an article of the Islamic State magazine ‘Dabiq’ telling a story of how the organisation survived during its darkest days involving the 2006 US directed surge in Iraq.
11.   Between July 2014 and December 2014, the defendant continued using Twitter accounts @Hais74 and @StrangerAhk to exchange thousands of ‘Tweets’ discussing Islamic State, sharing images associated with Islamic State and expressing his frustration over the use of airstrikes and drones in Syria and Iraq against Islamic State. The defendant also generated and posted numerous pro-Islamic State and anti-Western GIFS on these Twitter accounts. The profile picture used by the defendant for his account @Hais74 was an image of a soldier leaning against a wall in a war zone and the text ‘Victory or Martyrdom’. The background picture was of a convoy of vehicles flying the Islamic State flag.
12.   The defendant’s publicly displayed profile bio read: “Not Affiliated with IS , just following the events and news ... Al Emran 54: they plan, and Allah Planned, and Allah is the best of planners. :) spread truth. Within this ‘Twitter’ community the defendant made contact and established a network of online Islamic State supporters and members, such as United Kingdom (UK) nationals Samata ULLAH, born 7 November 1982 (ULLAH), Junaid HUSSAIN, born 8 May 1994, also known as ‘Abu Hussain’, and other unidentified persons using personas such as ‘Abu Khalid’, ‘sisiqardon’ and ‘Ghazi’ which led to him performing services for Islamic State referenced in Charges 1 and 2.
13.   A number of ‘Tweets’ involving the defendant’s account were publicly exchanged between like-minded Twitter users including ULLAH, ‘Abu Hussain’ and his wife Sally Anne JONES. Examples of these tweets, which sometimes attached pictures and Graphics Interchange Formats (GIFs – animated pictures) in the context of Islamic State and anti-Western sentiment include:
a.   On 14 July 2014, the defendant replied to a tweet made by Junaid HUSSAIN: “#Israel we are come to payback for what you done to #Gaza. #GazaUnderAttack #CaliphateRestored with the comment: “@AbuHussain102 and that is the truth !”.
b.   On 1 August 2014, the defendant retweeted the post originally by Islamic state Libya @operationlibyia which stated: “three angels.. travelled to #Jannah [12] today . #GazaUnderAttack #Caliphate is rising with #Allah swt [13] permission pic.twitter.com/ElujAxK3vx”.
12. Janhah – (Heaven)
13. Allah SWT – (God, exalted and almighty)
c.   On 8 August 2014, the defendant replied to the Twitter post by News Provider @AbuHanzala_ : “I just don’t want the citizens of US to cry when something happens to them tbh” with: “@AbuHanzaia_ @AbuUmarAlAnsari (ULLAH) Erm …. I do :)”.
d.   On 9 August 2014, the defendant replied to the Twitter post by @thatmynickname: “Turkey allowing US airstrikes. Turkish F-16 also bombarding islamic state but the government doesn’t talk about it because Turkey fear IS.” with “@thatmynickname @AbuBakr1924 sources ? Would be interested to know if turkey will allow attacked from its country on #IS.

e.   On 9 August 2014, the defendant retweeted ULLAH’s tweet: “There is an #American drone base in the Erbil Airport [14] being used against the #Islamic_State”. The defendant also tweeted: “#USA 2 Air Strikes Islamic state, Conclusion Syrian rebels to stand with #IS , tribes stand with #IS , more legitimacy for #IS :)” and “@AbuSaalihah @AbuBakr1924 Erm every air strike on Gaza has obama’s hand and blessing”.
14. Erbil is a town in Iraq
f.   On 18 August 2014, the defendant posted the Tweet: “Aljazeera English reporter says US air strikes to help Peshmerga to try to take Mosul dam. On going battle NOW still going #IS still holding”.
g.   On 22 August 2014, the defendant posted the Tweet: “@Alansarialjanab @Abulooz22 they offered ransom , they offered prisoner exchange ! Both rejected by the us , preferring instead to bomb Iraq.
h.   On 29 August 2014, the defendant retweeted a Twitter post made by Ramiz @MoRamizSY which read: “Drone? What drone…. We have our own drones. #Islamic State @Truth_unveiled @ghazishami #Iraq #ISIS pic.twitter.com/dl1vwWdTFK”.
i.   On 1 September 2014, the defendant posted the tweet: “Whatever agenda US and puppets had , has changed after the return Islamic Caliphate ! This has taken them by storm pic.twitter.com/EjhlHZhuPT.
j.   On 3 September 2014, the defendant posted the tweet: “@MinaMinaaa @Ameerana_abudua Alhamdulilah Allahs wrath will arrive soon inshaAllah to Egypt !” and a tweet retweeted by ULLAH which read: “Us soldiers and German participating in zumar and other areas in fighting against #IS. Directing air strikes from the ground against #IS ½”.
k.   On 7 September 2014, the defendant posted tweets favourited by ULLAH and others which read:
i.   “@AbuUmar_8246 (ULLAH) US backed Assad Alawites bomb civilian neighbor hood in islamic state killing civilians and destroying homes. Tyrants allies”.
ii.   @AbuUmar_8246 (ULLAH) @proxetsc3 @ghazishami @truthzsmaster1 @JihadWitness Islamic State is real Freedom and no racism. Truth pic.twitter.com/owADTfXMpr.
iii.   @AbuUmar_8246 (ULLAH) @proxetsc3 @ghazishami @truthzsmarter1 @JihadWitness All brothers under one banner. pic.twitter.com/Q5lBzTrNPQ.

l.   On 12 September 2014, the defendant posted the tweet: “#Islamicstate brings happiness and hope for Muslims and children. The Caliphate is a light in the darkness. pic.twitter.com/aKJ6lCmfrU.”.
m.   On 14 September 2014, the defendant posted the tweets: “@JihadNews5 Australia a country on the other side of the world , whom has received no threats or attacks , enters into a war against Muslims” and “#IS dawlas [15] mujahedeen [16] have come to give honor back to Islam and Muslims , May Allah give alFirdous to the shahada [17] pic.twitter.com/v3EsQzCwh”.
15. Dawlah – a reference to Islamic ‘State’.
16. Plural of ‘Mujahed’ – Islamic holy warrier.
17. Shahada – Martyrdom. Also refers to the proclamation of Islamic faith: “There is no Go but Allah, Mohamed is Allah’s messenger”.
n.   On 17 September 2014, the defendant retweeted the post by @Reuters which read: “PHOTOS: Islamic State fighters shoot down Syrian war plane using anti-aircraft guns. Reut.rs/1pidPDa pic.twitter.com/dvnjzpQLG8”.
o.   On 18 September 2014, the defendant posted the tweet: “: A lion [18] from #is #IslamicState a message to my brothers in sham [19] pic.twitter.com/6MzsTFF9Ek”.
18. The lion is mentioned in the Qur’an in reference to the unbelievers who have not accepted the revelation of Muhammad ‘As if they were affrighted asses fleeing from a lion’. In the context of Islamic State it refers to their fighters.
19. Sham – Bilad ash-Sham – refers to a broad area encompassing modern day Syria.
p.   On 9 October 2014, the defendant received a series of direct messages (private messages) on his Twitter account showing one side of the conversation with the Twitter user Abu Bakr @abubakrpro, some of which read:
i.   “Vbeid [20] and streetfights continue, US upped up their airstrikes after realizing Turkey won’t intervene”; and
20. Vbeid, alleged to be VBIED – Vehicle Borne Improvised Explosive Device
ii.   “May AllahSWT [21] protect our Mujahideen brothers and let the airstrikes hit the YPG!! [22] Ameen ya rabb!” [23] .
21. Allah SWT – (God, exalted and almighty).
22. YPG - Yekîneyên Parastina Gel (People’s Protection Unites) the armed wing of the Kurdish leftist Democratic Union Party.
23. Ameen ya rabb – Amen, O Lord.
q.   On 9 October 2014, the defendant tweeted the following posts:
i.   “@azdiah13 @ahmad27161 Obama’s coalition is now in the same Axis of evil as Assad , may they be together in jahanam”; and
ii.   “@HRHScampi @alamium @PardonMyArabic my perspective is Allah SWT [24] created the world and it is only fitting that the flag of Tawheed [25] be raised”.
24. Allah SWT – (God, exalted and almighty)
25. Tawheed – the oneness of God, the raising of the right index finger is a common symbol amongst Salafists and jihadists and has become particularly associated with Islamic State given the degree to which it is shown by fighters on social media.

r.   On 28 October 2014, the defendant tweeted the post: #IS Mujahid [26] shows the Kuffar [27] how’s it’s done and sends him straight to hell ! twitter.com/saeb_f3/status… pic.twitter.com/8YnYolbe6s”.
26. Mujahed – Islamic holy warrior
27. Kuffar – Disbelievers
s.   On 6 November 2014, the defendant commented in a Twitter post conversation:
i.   @Aidrusali2014Qa – Islamic State is in control of Baiji [28] . It’s Baqiyah watatamadad forever.
28. Baiji – Town in Iraq located north of Baghdad
ii.   The defendant: @Aidrusali2014Qa @ghazi_dimashqi wait, you mean all the US coalition airstrikes were a waste of tax payers money ? And now #IS control it?

14.   Also during this period, the defendant using his Twitter account @Hais74, exchanged numerous direct (private) messages with a number of users including ULLAH. A number of these messages discussed Islamic State and were notifications to go chat on the encrypted messaging application ‘SureSpot’. Examples of some of these messages include:
a.   On 2 October 2014, the defendant engaged in a private direct message conversation with Twitter user identification number 2835920131. During the conversation the defendant informed the user not to reveal anything that could help ‘in war against brothers’. The defendant stated he knew it was hard but ‘we’ didn’t want to be a reason for any actions or deaths of anyone ‘there’.
b.   On 20 October 2014, the defendant engaged in a private direct message conversation with Twitter user identification number 2795582920. During the conversation the defendant discussed making new videos relating to mujaheeds. The defendant stated: “The bodies of martyrs are a sign for those with intellect. Even since early days of Afgan war there was much talk about them. I remember vividly 1 brother 3 weeks later found still bleeding on a mountain. And recently a brother dug out 2 weeks after he got martyred his body intact and was bleeding SubhanAllah [29] . The difference between Mujaheds body and a Kufr body is so vivid. Would be good to include some examples for people to ponder in one of your vids - as truly they are a sign - and the ugliness of the kafr's”.
29. SubhanAllah – Exalted is Allah
c.   On 15 November 2014, the defendant engaged in a private message conversation with Twitter user identification number 2782123004. During the conversation the defendant stated: “Bro. Please don't tweet anything positions or areas that are live OPS. You put brothers in danger , you don't want that on your neck. Delete please ASAP.”
d.   On 1 December 2014, the defendant engaged in a private message conversation with ULLAH. During the conversation the defendant stated: “Could you possibly DM [30] @BaniHillal to remind him to restrain of info that is live and could hurt loved ones :)” and “Coz even with their own admission - Twitter is a major source of Intel and info. So restraint is a must on live Info. Iv also asked ghaz to warn him via surespot.”
30. DM – a known short acronym for ‘Direct Message’ on Twitter (private messaging).

15.   Also during this period, the defendant sent numerous e-mails to himself between his accounts ‘[email protected]’ and ‘[email protected]’ with GIFs promoting the Islamic State and about ‘airstrikes’, that were later distributed on his Twitter posts. E-mails like these and others included:
a.   On 6 September 2014, the defendant sent several emails to himself, one with the subject heading: ‘SamF18’ [31] , the other with the heading ‘HMmmm’ and a GIF attachment showing an F/A-18 fighter aircraft being shot down by a missile. Above the picture titled ‘SamF18’ was the text: ‘LOL’ [32] .
31. SamF18 is an acronym for ‘Surface to air missile’ and F/A18 fighter aircraft.
32. LOL is a well-known and widely used acronym for ‘Laugh Out Loud’.
b.   On 9 September 2014, the defendant sent an email to himself with the subject heading: ‘make dua [33] ’ and attaching two of the same GIF attachments showing an animated picture of a tank and other military vehicles, including a missile carrier with the Islamic State flag driving down a street. Text was imposed on the bottom which read: “Make Dua [34] for your brothers !”
33. Dua - Supplication
34. Dua - Supplication
c.   On 12 September 2014, the defendant sent an email to himself with the subject heading: ‘Evil Vs Good’ attaching a GIF image showing images of the Islamic State leader ‘Abu Bakr al-Baghdadi’ and text about Christian oppression of Muslims and “By the will of Allah SWT Justice is coming” from Islamic State.
d.   On 25 September 2014, the defendant sent an email to himself with the subject heading: ‘Airstrikes result’ with two images showing a deceased child being carried.

Online Security
16.   During the period between July and December 2014, the defendant commenced activities to enhance his online security. This included the use and promotion of the encrypted messaging applications such as ‘SureSpot’. For example:
a.   On 15 August 2014, the defendant purchased the iPhone application ‘Onion Browser - Secure & Anonymous Web with Tor’ [35] from the Apple iTunes store.
35. Tor or TOR is an acronym for ‘The Onion Router’ – a secure way to browse the internet by modifying the Internet Protocol (IP) address of the user.
b.   On 21 and 22 August 2014, the defendant received a series of direct messages (private messages) on his Twitter account showing one side of the conversation with the Twitter user Abu Muawiyah Alajami @MuawiyahAlajami and which read:
i.   Ok, I will go back and delete some of my previous posts. What is surespot? I’m a techno-retard & still new to twitter.
ii.   MuawiyahAlajami my username on sure spot…gotta scoot to salah. be back soon.

c.   On 3 September 2014, the defendant received a Twitter private message from ULLAH to “check surespot”.
d.   On 6 November 2014, the defendant acquired the iPhone application ‘ChatSecure - Encrypted Messenger’ from the Apple iTunes store.
e.   On 30 November 2014 the defendant received his account details for his online ‘CyberGhost 5 account’. [36]
36. CyberGhost is a paid Virtual Private Network (VPN) service which users can utilize for browsing and connecting to the internet privately without showing their Internet Protocol (I.P) address.
f.   On 3 December 2014, the defendant sought support via e-mail from the private internet browser ‘Red Browser’ in particular to use it with Twitter.

Research and Development of a Laser Warning Receiver (December 2014 – June 2015) (Charge 1)
17.   A Laser Warning Receiver (LWR) is an electronic device that provides advanced warning of laser guided munitions by detecting the incoming laser radiation (such as infrared lasers) made by a target designator and then sounding a warning alarm. The device is described as a passive device that can be purpose built to detect particular length of pulses, level of frequency and wavelengths. LWRs are generally not used in non-military applications, other than for detectors of police laser speed guns, yet such detectors contain different properties to the one the defendant was researching, developing and later constructed.
18.   The defendant’s activity in this field can be summarized as being conducted in the following areas and order almost daily between December 2014 and June 2015, usually in the late hours of the evening and early morning at his residential address:
a.   Research in Laser guided weapons.
b.   Research in Laser target designation.
c.   Research and Development in Electronic circuit design.
d.   Development of Printed Circuit Board (PCB) design and manufacturing.
e.   Use of electronic computer-aided-drawing (CAD) packages and simulation tools to develop a CAD design to house the LWR electronics.
f.   Development of the mechanical design and fabrication of the LWR using 3D printer technology.
g.   Development of microcontroller circuit and code using the electronic circuitry software Arduino IDE.

19.   The final construction of the LWR made by defendant can be described as containing three distinct but related units produced in the following order:
a.   The LWR control unit which contains electronic circuitry, the warning alarm sounds and light, and adjustable frequency knob and switches;
b.   A LWR sensor unit which is a 360 degree octagonal prism shaped unit that uses nine photodiode sensors to detect the incoming laser radiation (infrared laser) from the target designator; and
c.   An alternative to the LWR sensor unit, being a LWR Arduino unit which contains the microcontroller circuit and programmable code for another LWR.

20.   On 15 November 2014, the defendant commenced researching material on the internet relating to electronic defence systems. In mid-December 2014, the defendant refined his research to ‘radar detectors’, ‘laser detectors’ and ‘infrared sensors’. Undated internet history indicates the defendant also researched websites relating to ‘drone shields’, ‘killing UAVs’, ‘Laser jammers’, ‘killing predator drones’ and ‘reading mission control data out of predator drone video feeds’.
21.   On 12 December 2014, the defendant sent an email to himself with the subject heading ‘LWR’ containing a webpage link for ‘ The website titled ‘BattleField Laser Warning Receiver’ provided significant background information about laser guided weapons and guidance for building a Battlefield Laser Warning Receiver. This website is alleged to be the basis for the defendant’s own design of a LWR.
22.   The following day on 13 December 2014, the defendant used his Apple iMac desktop computer to amend and save relevant electronic schematics (circuitry) files and sent an email to the company ‘Radar Detectors’ enquiring whether a ‘Laser Elite Laser Jammer’ unit could detect infrared lasers at certain pulse rates.
23.   Between 14 December 2014 and 7 January 2015, the defendant continued to research material whilst amending and saving electronic schematics relating to his LWR design. The defendant obtained a number of publicly available documents which included US patents relating the invention of an electronic compact Laser Warning Receiver and saved them to his Apple iMac desktop computer. These documents included diagrams of the electronic circuitry schematics and technical explanations of the device. The defendant also saved a shortcut to schematic editing software named ‘Altium Designer [37] ’ and ‘NI Multisim 13.0 [38] ’ onto the desktop of his Apple iMac computer. The defendant commenced using this software to create and save computer schematic files to his computer, which allowed him to conduct circuit simulations. Computer circuit simulations allow a designer to work through the initial stages of design and testing significantly faster than using actual hardware. By 3 January 2015, the defendant created and saved a schematic file for the program NI Multisim 13.0 titled ‘LWR First Schem with MWA120 Replaced with 2n3866.ms13’ to his Apple iMac desktop computer. That particular circuit design is virtually identical to the circuit shown on the website ‘ for the Battlefield Laser Warning Receiver.
37. Altium Designer is a printed circuit board design software and an electronic design automation software package for printed circuit boards.
38. NI Multisim, short for ‘National Instruments Multisim’ is an electronic schematic capture and simulation program that can be used to simulate electronic circuits and prototype printed circuit boards.
24.   Between 8 January 2015 and 28 January 2015, the defendant continued his online research and development of the LWR electronic circuitry through continuously creating and modifying numerous schematic files using his Apple iMac computer. Beginning 12 January 2015 the defendant advanced his designs and commenced using the program NI Ultiboard [39] on his Apple iMac desktop computer to create electronic files for the PCB component of the design. On 14 January 2015, the defendant saved a picture of the Islamic State flag on his computer and placed the image onto the first electronic design of the PCB file for his LWR titled: ‘BLWR PCB1 Draft3 – Copper Top.gbr’.
39. NI Ultiboard is an electronic printed circuit board layout program that works with Multisim to allow the user to capture, simulate and lay out a printed circuit board design to create a prototype as quickly and accurately as possible.
25.   On 16 January 2015, the defendant further modified the electronic design of the PCB file and added the word ‘BAQIYAH’ [40] at each of the four corners of the board. The defendant continued to modify the electronic PCB design numerous times up to 28 January 2015 by which time he’d change the spelling of the word from ‘BAQIYAH’ to ‘BAAQIYAH’.
40. As previously mentioned, the Islamic State’s motto is ‘Baqiyyah wa Tatamaddad’ meaning remaining/ enduring and expanding and is often referred to in its shorted form ‘Baqiyyah’.
26.   Between 28 January 2015 and 2 February 2015, the defendant took several photographs using an Apple iPhone 5 of an etched circuit board without any componentry attached followed by photographs of the etched circuit board with electronic componentry attached. The printed circuit board also showed the Islamic State Flag and the word ‘BAAQIYAH’ etched into the board. Further photographs taken by the defendant showed a 3D printed rectangular case with the circuit board inserted and the lid to the case being printed in the 3D printer. The photographs indicated the defendant had begun physical construction of the PCBs matching the testing and designs on his computer as well as using the 3D printer to house the PCBs and circuitry. Furthermore, the photographs indicated that during this period the defendant had undertaken the following:
a)   Placed an electronic schematic design onto a blank copper PCB;
b)   Placed the copper PCB into the etching solution which removed the unwanted copper, leaving the required design.
c)   Populated the printed circuit board by soldering on the required components;
d)   Created computer aided drawing designs for housing the printed circuit board and circuitry; and
e)   3D printed and connected the housing for the primary LWR control unit containing the populated printed circuit boards.

27. On 2 February 2015, the defendant continued his research by e-mailing specification questions about wavelengths and pulse cycles to companies and persons selling infrared laser cards and torches. On that same date, the defendant used an Apple iPhone 5 to take two photographs of electronic circuitry inside the 3D printed casing which was now connected with wires to LED lights, toggles and switches.
28. Between 3 February 2015 and 6 February 2015, the defendant continued to modify further electronic schematics and various electronic PCB designs for the LWR, in particular the sensor boards. The defendant also used Computer-Aided-Drawing (CAD) design software named ‘Blender’ and ‘Meshmixer’ to design the 3D printable casing for the sensors, saving the files on his Apple iMac desktop computer in folders titled ‘360degSENSE_Project’ and ‘3dprint models’. Additionally, the defendant continued his research and on 5 February 2015 saved an electronic schematic file on his computer titled: ‘BFLWR Full Circuit Modified with HA-5020 and No Log Amps Simplified – for report.ms13’. Finally, on 6 February 2015, upon completing the circuitry, PCB and 3D casing design for the sensor component of the LWR, the defendant 3D printed the design and used an Apple iPhone 5 to take several photographs of the fully constructed part.

29.   On 6 February 2015, the defendant created a 288 page PDF document using the program PDFpenPro, titled ‘LWR Report.pdf’. The report, which began with the Arabic script: “In the name of Allah (God) the most merciful and the most compassionate”, contained detailed analysis, observations, research, testing and experiences by the defendant, about his research and development of a LWR. The document contained text typed out by the defendant, as well as various articles and information from the internet regarding LWRs. In addition, the document exhibited pictures of the schematic files and PCB designs created by the defendant, as well as the digital photographs showing the construction process of the items physically made by the defendant. The report reflected the defendant’s design work up until this date. The report provided enough information for a person with a reasonable technical background, to be able to repeat the work, with some effort. The majority of the information contained within the 288 page report was taken from various websites which are located in the public domain, with the most commonly used website being ‘blockyourid.com’.
30.   Around the same time on 6 February 2015 the defendant saved a file titled ‘How to Split files in O.textClipping’ which described how to zip files and send them over the internet via the terminal/ command line. It is alleged that upon completion, the report was encrypted and protected with the password: ‘Baaqiyah’. The report was then divided up into smaller files and by using the command line, sent over the internet using ‘The Onion Router’ (TOR). It is alleged this information was used to assist the defendant in sending the report on the LWR to other persons via the internet. Around 15 February 2015, a copy of the defendant’s LWR report was saved onto devices belonging to and later seized from UK national Samata ULLAH. It is alleged that the defendant transmitted this report and other images to ULLAH over the internet via secure means.
31.   Sometime after 6 February 2015, on an unknown date and time, the defendant typed an encoded message to an unknown person via unknown means. The encoded message was saved to the bash history [41] on the defendant’s Apple iMac desktop computer. The message reads as follows:
41. Bash history is a file containing previous commands entered by a user of the computer. The default amount of command history saved in this file for the operating systems used on the SanDisk Cruzer 32BG and Apple iMac desktop computer is 500 lines.
Assalamu alaikum. you know who it is. we discussed the laser detector :)
Lets communicate on this for the time being until I switch phones since my phone has a problem turning on.
Wa alaikum al salam
Yes get your self a decent phone already :)
Regarding the alarm yep I managed to put a prototype together with a single sensor. I tested it with a remote transmitter i had here and it worked fine. :)
I put together 3 designs all pretty much based on the original link i gave you previously.
1. Simplified design on 1 pcb ( this is the one i made).
2. Same as above but split on 2 pcbs
3. More sensitive design closer to the original project i followed.
I managed to get in touch with an Administrator thanks to ghazi , who showed the sneek peek pics i sent him to the tech team for analysis.
The response was -
Why isnt here here ?
How can we communicate directly with him if he is not here ?
I explained my current situation and so they requested a full report.
I said my intention was to help the techies and liase with them for development.
He said thats not possible.
He said - you have to understand your not dealing with a single person.
your dealing with a corporation.
So please send us a report with how you achieved this , how you did it , and how to develop it.
So I put together a report (288 pages) and included my build and the original resources i followed.
I tried to mention everything i could in it.
it took a few days to send it successfully due to a bad net connections.
The administrator just got back to me with -
"Alhamdulilah report is very good , but i didnt have time yet to show it
to the tech dept yet, inshaAllah i can tonight,
Barakallah fik"
Im just waiting on more feedback after the techies look at it and
im working on a design for the 360 degree sensor plus up. so 9 sensor array.
Heres some things to think about on the sensor array and driver pcb board.
We can make a 9 sensor array and it will work , I tested multiple sensors in the simulation software with my designs and it seems to work fine.
great - but
It will NOT give us an indication of which sensor tripped or caused the alarm...
it will still alarm and give you warning though.
To be able to get an indication of which sensor tripped we would need to make a pcb board for every sensor, so 9 boards simular to one i made.
Then an LED indicator can also flash showing the direction of the burglar. :)
Having an led give you an indication will further give you help in decision making a countermeasure response and direction..
So yeah - just waiting for some feed back now - and i may buid design 3 pcb (more sensitive) 9 sensor array.
if I want the led indication of direction i would need to build 9 boards.
i can show you some pics of the build if you like but confirm for me its ok on here , as we dont want a competitor stealing our designs and taking it to a different corporation :)
So look into security for me please. Isnt surespot more secure - or is mail2tor fine ??
:)
BTW how long will your email remain active ?

32.   It is alleged that the defendant is referring to the creation of the 288 page report for the LWR, in response to a request to do so.
33.   Between 7 February 2015 and 14 February 2015, the defendant began modifying CAD designs for the LWR sensor unit, being an octagonal prism object with holes for an infrared sensor on each side and on the top. Two of the CAD designs were saved in a folder on the defendant’s desktop screen of his Apple iMac computer and titled: ‘360 degrees sensor draft model1.jpg’ and ‘360 degrees sensor draft model2.jpg’. The defendant also continued to amend and save more electronic schematic files for the LWR.
34.   On 15 February 2015, the defendant took a series of digital photographic images of the octagonal shaped object being printed in his FlashForge 3D printer and then sent the images to himself via email. This object is the outer shell of the LWR sensor unit which houses the sensors that detect the infrared lasers aimed by a designator to target an incoming guided missile. Some of these photographs were also located on devices belonging to and later seized from UK national Samata ULLAH.
35.   Throughout February and March 2015, the defendant continued further research and development of the LWR sensor unit which included:
a)   Further modification of various electronic schematic files and electronic printed circuit board designs including the photodiodes (sensors) component of the LWR, such as a file titled ‘LWR_Sensor (360).ewprj’;
b)   Placed an electronic schematic design for the photodiodes (sensors) onto a blank copper PCB and placed the PCB into the etching solution to remove the unwanted copper, leaving the required design.
c)   Populated the printed circuit board photodiodes (sensors) by soldering on the required components;
d)   Created computer aided drawing designs for the housing of the photodiodes (sensors) to be fitted within the 360 degree octagonal prism unit;
e)   3D printed the housing units for the populated printed circuit boards sensors (photodiodes) for inside the 360 degree octagonal prism unit;
f)   Fitted the photodiodes into the 3D printed housing units and into the 360 degree octagonal prism sensing unit of the LWR. The housing is a mechanism to have the photodiode (sensor) array with a visibility greater than a hemi-sphere;
g)   Took digital photographs using an Apple iPhone 6 of the physical assembly process described above;
h)   Continued designing the LWR electronic printed circuit board for the copper board. One of the final designs saved on 18 March 2015 was titled ‘BFLWR 2 supply regulators Full Circuit design !.ewprj’; and
i)   Once the defendant completed the above, he researched the internet to search for information regarding ‘oscilloscopes’, ‘pulse generators’, ‘frequency generators’, ‘wave frequency generators’, ‘signal generators’, and infrared lasers’ suggesting that new research and development was to be pursued with physical testing of the defendant’s assembled LWR to that date. A number of related items for testing were enquired and researched by the defendant until the beginning of May 2015.

36.   Throughout the first half of May 2015, the defendant began specific research and development into the microcontroller circuit and code for the LWR using the electronic circuitry software Arduino IDE. For example, on 6 May 2015, the defendant researched the internet for ‘Arduino Software’, ‘Arduino infrared’, and ‘Arduino night-vision’. Additionally, during this period the defendant began using CAD design software to design and 3D print the exterior casing for the Arduino microcontroller unit of the LWR. On 14 and 15 May 2015, the defendant extensively researched the internet for a number of things including: ‘How to Simulate a Microcontroller in Multisim’, ‘Arduino software’, ‘Electronic circuit simulator will integrate with Arduino boards’ and various other electronic related issues including pulse timers and triggers.
37.   On 15 May 2015 and immediately after his internet research, the defendant created and saved electronic schematic files titled ‘555 laser receiver.pdsprj’ and ‘555 laser receiver.ms13’ of which both designs employed a ‘pulse stretcher’. A pulse stretcher takes very short pulses from a target designator and makes them long enough to drive slower circuitry such as a warning buzzer or light. It is alleged this is for the ‘warning buzzer’ for when the LWR sensor unit detects an incoming infrared target designation for a guided missile.
38.   Also that date, after completing the schematics the defendant continued internet research on his computer on further electronic specific issues such as ‘transistors’ and ‘amplifier simulators’. The defendant then began saving a series of files on his computer for specific Arduino code, such as file titled ‘IRSENSE.cpp.hex’ and ‘laserarduinotest1.hex’ alleged to be test programmable computer code used for the LWR Arduino microcontroller unit which commands the parameters of when the LWR should be alarmed. Upon completion of this and towards the late evening on 15 May 2015, the defendant began researching the internet on how to record a computer desktop video, computer screen recorders and a tutorial on how to use the related program ‘Screenflow’.
39.   At 12:36am on 16 May 2015, the defendant commenced a recording of his computer screen using the software ‘Screenflow’ on his Apple iMac desktop computer. The recording commenced by showing the background of the defendant’s home Apple iMac desktop computer screen overlaid by four open windows of different computer programs. The video is a rolling screencapture where the defendant delivered a tutorial/ report by typing each part of the report into an open notepad window and then deleting before typing the next part. Set in the background of the video are two of the schematic files previously created by the defendant on his computer. At the beginning of the video, the defendant typed ‘First we need to get some things clear….The Aim! To be able to detect infrared lasers that target you for laser guided missiles to track and target!’.
40.   The defendant also typed the following:
a.   Information about laser guided missiles, such as Hellfire missiles, and how they work;
b.   Information about the types of camera and guidance systems used in laser guided missiles, which include the infrared laser, distances and navigation;
c.   Information about how a target is designated including the equipment used, ranges, divergence beams and how this information should be taken into consideration when fitting out a vehicle;
d.   Further information about the infrared laser, wavelengths, pulse frequencies used by the US and NATO for laser guided missiles and how they are pre-programmed between the designator and missile;
e.   Information about ‘Laser sensor photodiodes’, reaction rates, sensors and wavelengths;
f.   “I have tested and tried a circuit, as you saw in the previous report…”;
g.   “InshaAllah Ill make another report soon….Just wanting on some nicks and nacks i ordered so i can do outdoor testing ….The testing will be done with the sensors i built and infrared laser pointer 940nm , and pulsed laser 980 nm ….”;
h.   Information about an electronic circuit he had built that senses incoming signals “Note! before i forget … The VBPW34s sensors im using are not the best, but as I mentioned in the previous report , they are listed in a US military patent on this subject !”;
i.   Information about the alarm sensitivity settings, pulsing intensity rates, sensor brightness, signal rates, reactance times, speed of the circuits he had researched and tested with the buzzer;
j.   Information that when he tried lighting a flame near the sensor it alarmed and that after altering the sensitivity it was fine and that it “just makes you think about the battlefield stuff ….”;
k.   Information about the flight time from the release of a laser guided missile to impact and that if ‘they’ realise that ‘you’ can detect and evade their missile, ‘they’ will change their tactics to off-set the laser designation;
l.   “But if you program and train operators you can also pick off target illumination…”; and
m.    “If its set too low and occasionally beeps here and there, it could cause the mujahids to get used to it and delay reactance time when it goes off for real ?? maybe ? Salam Alaikum : )”.

41.   The defendant also simulated a number of electronic schematics during the video, showing how they worked. The video ran for a total of 57 minutes and the defendant selected and played a number of Islamic State nasheeds [42] in the background.
42. A nasheed (chant) is a work of vocal music that is either sung or accompanied by instruments.
42.   At 2:01am that same morning, the defendant attempted to crop the frame of the video and convert the file format. However, the file created was a corrupted version which only showed the first 7 minutes and 30 seconds before freezing. The redacted version of the video only showed the schematic program and ‘Notepad’ with no other background features to the computer screen. Both the video and the corrupted version were saved into a folder named ‘test’ in the defendant’s external hard drive.
43.   At 4:04am that morning, the defendant saved a PDF document titled ‘BFLWR.pdf’. The defendant then encrypted and protected the document with the password: ‘BaaqiyaH!’. The document consisted of 15 pages beginning with the title ‘Battlefield Laser Warning Receiver……’ and contained mostly copied and pasted information from a website relating to making a Battlefield Laser Warning Receiver. In the report, the defendant briefly mentioned that some of the parts can be purchased cheaply on eBay. One of the parts highlighted was an ‘IR Infrared 808nm-1064nm’.
44.   Between 25 and 30 May 2015 the defendant researched and obtained additional freely available electronic documents including information on photodiode amplifiers, electronic voltage distortion amplifiers and the US patents all for related research on the LWR. The defendant also researched the internet on PCB milling machines and 3D printer milling machines. The defendant continued to research this topic until 9 June 2015. Additionally within these dates, the defendant commenced work on his computer for an additional electronic schematic circuit for his LWR design.
45.   On 31 May 2015, the defendant saved a number of electronic schematic files on his Apple iMac computer in a folder titled ‘Modified LWR’. The defendant also took a number of screenshots of these schematics on his computer and saved them to his desktop screen.
46.   On 1 June 2015, the defendant continued his work on the additional electronic schematic circuit for his LWR design and saved images on his encrypted Linux operating system stored on his external hard drive, which showed images of the defendant’s Laser Warning Receiver being constructed up until that date.
47.   On 2 June 2015, the defendant continued working on and saving a number of electronic schematic files for the Laser Warning Receiver before compiling an 18 page written report saved as ‘Report3_A.pdf’. This report was saved within the defendant’s encrypted Linux operating system stored on his external hard drive. The document detailed further information and pictures about his testing for his Laser Warning Receiver design. The defendant later encrypted the document and protected it with the password ‘Baaqiyah!’. Within the report, the defendant wrote a number of things such as:
a.   In the last report he included a pdf called ‘bflwr.pdf’ and mentioned it needed to be looked at;
b.   He needed to mention that the ‘Arduino direction failed outdoor testing’;
c.   He believed this was because the sun emits infrared light and affected the sensitivity values thus sounding the alarm;
d.   He hooked up the laptop and noticed the Arduino values were at maximum;
e.   As such the setup will work at night but not in the day;
f.   The defendant posed the question: “so what do we need ?” and then answered it with: “We need an Infrared Laser Pulse Detector !”;
g.   A detailed explanation about how he fixed the problem and the research he came across. In this he stated:
i.   In his research he came across the work of another individual who made a prototype battlefield laser detector and has provided this information in the last report. This work was based on a US military tracer patent, that is an individual soldier’s laser warning system that could be mounted on a vehicle or on the body of the soldier. The defendant stated he tried to replicate it as best he could.
ii.   Provided further pictures and schematics whilst extensively detailing his troubleshooting of the findings.
iii.   The defendant states it would be recommended to carefully study the placement of sensors on vehicles.
iv.   That “If you have any questions let me know and I will do my best to answer them”.
v.   Finally, the defendant writes: “Your brother in islam. May Allah Subhana Wa Ta3alla give keep the khalifate soldiers steadfast and give them swift victories. I will continue my studies inshaAllah in area's that will benifit”.

48.   Lawfully obtained information showed that on unknown dates sometime during the period between November 2014 and September 2015, the defendant exchanged a number of images with unknown recipients using the encrypted internet messaging platform ‘SureSpot’, with one of the images in his gallery being a digital photographic image of the defendant’s octagonal prism sensor unit for his LWR.
Purchased items by the defendant relating to the LWR
49.   Between January 2015 and May 2015, the defendant purchased online a vast number of items, mainly electronic items and componentry connected with the research and development of the LWR. Each purchase corresponded with a relevant phase of the defendant’s research and development and showed his intention to fully construct a physical and working LWR. The items were easily available and purchased using a number of different online companies and websites such as eBay, RS Components, Element 14 and Jaycar Electronics. The purchases made largely in this order included:
a.   Circuitry controller boards.
b.   Circuitry sound buzzers.
c.   Circuitry sound amplifiers.
d.   Filter lenses for infrared laser cameras.
e.   Circuitry resistors.
f.   Photodiodes.
g.   A microscope.
h.   Circuitry boards (including copper clad circuit boards).
i.   Printed Circuit Board etching kit including 2 x containers of Ammonium Persulphate and Printed Circuit Board film.

Consistent with the offender’s commitment and dedication, it is an agreed fact [116] that he sent a lengthy report in relation to the laser warning device to persons associated with Islamic State. Moreover, in the context of his research about rockets, the offender made mention in a conversation with ‘Ullah’ that he had sent ‘a full chemical munitions cook book’ [117] which explained a number of issues, including data verification, and which he sent to Islamic State. The extent of the offender’s research into rockets is reflected in the fact that in that same conversation [118] he made reference to having reached the point where he was ‘studying multiple stage rockets and flight times’. The evidence of Mr Spleeters establishes that rocketry is used in armed conflict.
116. At paras. (29)-(30).
117. At para. (73).
118. At para (115)(dd).
The offender was at pains to point out when giving evidence that the offending in count 1 involved the use of (at least in part) materials which were freely and publicly available. The emphasis placed by the offender on that circumstance suggested that he viewed it as mitigating, or perhaps even justifying, his conduct. The fact that some of the material he used may have been freely and publicly available is not to the point. The more important consideration is that the offender, having located such material, chose to use it in a way which amounted to the commission of a serious criminal offence.
The offender also asserted on more than one occasion in the course of his evidence, that at the time of the offending in count 1 he held a genuine belief that Islamic State was a force of good rather than a force of evil. I do not accept that for a number of reasons.
First and foremost, the offender has pleaded guilty to an offence of intentionally providing support or resources to Islamic State, knowing at the time that Islamic State was a terrorist organisation. There is an obvious, and fundamental, inconsistency between admitting knowledge of the fact that an organisation is a terrorist organisation on the one hand, and simultaneously asserting a genuine belief that such an organisation is a force of good on the other.
Secondly, I do not accept the offender’s evidence that he was unaware of the true nature of Islamic State because he chose to divorce himself from mainstream news, and restrict himself to social media platforms such as Twitter as the source of information in relation to world affairs. Leaving aside the fact that the offender admitted to always looking at news websites, [119] his evidence essentially amounts to the proposition that he was living a hermit-like existence, cloistered in something akin to a hermetically-sealed bubble, completely removed from reality, and totally oblivious to the true nature of Islamic State as a terrorist organisation. Such a proposition, in my view, is fanciful in the extreme. The fact of the matter is that like the rest of the world’s population, the offender had become aware of the atrocities committed by Islamic State. His level of dedication to that organisation saw him choose to ignore what had come to his attention.
119. At [26] above.
Thirdly, and bearing in mind that the facts of the offending were agreed, things said and done by the offender himself, often by reference to the activities of Islamic State, are antithetical to the proposition that he held a genuine belief that Islamic State was a force of good. For example, the facts record [120] that the offender generated and posted numerous pro-Islamic State, and anti-Western, GIFS on his Twitter account, and that his profile picture was an image of a soldier leaning against a wall in a war zone, accompanied by the text ‘victory or martyrdom’, against a background picture of a convoy of vehicles flying the Islamic State flag.
120. At para 11.
Messages posted by the offender on his Twitter account also fly in the face of the proposition that he was unaware of the true nature of Islamic State as a terrorist organisation. For example:

on 14 July 2014, in reply to a tweet stating ‘#Israel we are come to payback for what you done to GAZA#GazaUnderAttack#CaliphateRestored, the offender responded:

…and that is truth. [121]
121. Statement of Agreed Facts at para 13a.

on 1 September 2014 the offender posted the following on his Twitter account:

Whatever agenda US puppets had, has changed after the return of the Islamic Caliphate! This has taken them by storm. [122]
122. Statement of Agreed Facts at para 13i.

on 12 September 2014 the defendant posted a further message on his Twitter account:

#Islamicstate brings happiness and hope for Muslims and children. The Caliphate is a light in the darkness. [123]
123. Statement of Agreed Facts at para 13l.

on 28 October 2014, the defendant posted a message saying:

#IS Mujahid shows the Kuffar how it’s done and sends him straight to hell. [124]
124. Statement of Agreed Facts at para 13r.

on 20 October 2014 the offender engaged in a private direct message conversation with another Twitter user stating:

The bodies of martyrs are a sign for those with intellect. Even since early days of Afgan (sic) War there was much talk about them. I remember vividly 1 brother 3 weeks later found still bleeding on a mountain and recently a brother dug out 2 weeks after he got martyred his body intact and was bleeding Subhan Allah. The difference between Mujheds body and a Kufar body is so vivid. Would be good to include some examples for people to ponder in one of your vids – as truly they are a sign – and the ugliness of the kafr’s. [125]

on 6 September 2014 the offender sent several emails to himself, one with an attachment showing an F/A – 18 Fighter Aircraft being shot down by a missile, above which was the text:

LOL. [126]

on 12 September 2014 the offender sent an email to himself with the subject heading ‘Evil Vs Good’ attaching an image showing images of an Islamic State leader accompanied by a text about Christian oppression and Muslims and stating:

By the will of Allah SWT Justice is coming from Islamic State. [127]
125. Statement of Agreed Facts at para 14b.
126. Statement of Agreed Facts at para 15a. The abbreviation refers to ‘laughing out loud’.
127. Statement of Agreed Facts at para 15c.

There is evidence that the offender saved images of a silhouetted person in a hooded jumper as the profile picture of an encrypted messaging application which he used, accompanied by the words:

I’m back kuffar! So die in your rage. [128]
128. Statement of Agreed Facts at para 102c.

There is also evidence that the offender used a GPS visualisation calculator to depict a ‘launch location’ and a ‘ground hit location’ of a rocket. The example he used was a map of the rocket launch, distance and ground hit in the Syrian town of Sarrin in the north eastern Province of Aleppo. At the time of that being written, that town was the subject of fighting between Islamic State, and the free Syrian army. [129]
129. Statement of Agreed Facts at para. 76b.
This evidence is, in my view, inconsistent with the offender’s asserted belief that Islamic State was a virtuous organisation. It is, however, reflective of a person who holds radical and extremist views.
One of the principal submissions advanced on behalf of the offender was to the effect that the seriousness of his offending was mitigated by the fact that the citizens of Australia were unaffected (at least directly) by anything that he had done, and that his offending was not of a kind contemplated in the Explanatory Memorandum. Even if that is the case, I am unable to accept that it mitigates the offending to any real degree. The provisions of s 102.7(1) of the Code do not distinguish between the commission of an offence which directly affects this country and its citizens, and the commission of an offence which does not. Moreover, s 15.4 of the Code applies to an offence against s 102.7(1). [130] Under s 15.4, an offence contrary to s 102.7(1) applies whether or not the conduct constituting the offence occurs in Australia, and whether or not a result of the conduct constituting the offence occurs in Australia.
130. By virtue of s 102.9 of the Code.
It follows that in my view, the offending in count 1, involving as it did a high degree of planning, sophistication and analysis over a long period of time, was necessarily very serious. In those respects, it may be usefully contrasted with the circumstances of the offending considered in R v Atik [131] where the assistance provided was essentially limited to obtaining airline tickets to allow persons to fly interstate on two occasions. [132]
131. [2007] VSC
132. At [7].
The offending in count 2 was also serious. The offender’s evidence in relation to it was contradictory. To begin with, he admitted that he knew the passwords and refused to provide them. He then asserted that he had forgotten some of them. I am satisfied that the offender did know the passwords, and that he refused to provide them. According to the offender, his refusal was motivated by anger. Whilst the offender may have been angry, his conduct in refusing to comply with the demand was consistent with a desire to ensure, as far as possible, that the full extent of his offending was not discovered. That is supported by the fact that, after the police had searched his premises, the offender told Ullah:

Well that’s when I wiped and buried things. They actually went through the acerage (sic) and combed it. But Alhamdulilah nothing found.

That evidence demonstrates the significant degree of secrecy in which the offender engaged, and the lengths to which he was prepared to go in an effort to ensure, as far as possible, that his offending would not be discovered. He maintained in his evidence that his reference to things being ‘buried’ was ‘just a figure of speech’ [133] and that his reference to ‘wiped’ meant that he considered that material had been buried. I do not accept that to be the case. The offender is clearly an intelligent man. If that was he actually meant, that is what he would have said.
133. At T78.29.
The investigation into the offender’s activities was frustrated by his failure to comply with the demand which had been placed upon him. The purpose of s 3LA of the Act is to assist police in their investigations. The section addresses the fact that in this digital day and age, criminal offending often involves the compilation and storage of data. The section should be viewed as the Parliament’s response to the fact that criminal offending has become more sophisticated, and that combating it requires the exercise of extended powers of investigation. The seriousness of the offending in count 2 is reflected not only in the offender’s admission of knowledge of the passwords, but in the fact that his failure to comply with the demand frustrated the police investigation for a significant period of time.

THE OFFENDER’S SUBJECTIVE CASE

The offender’s contrition [134]

The offender’s prospects of rehabilitation [135]

134. s 16A(2)(f).

135. s 16A(2)(n).

I have already referred[136] to the offender’s expressed contrition, and his evidence of how he regarded Islamic State at the time of his offending. For the reasons I have already expressed I do not accept that the offender genuinely thought, at the time of the offending, that Islamic State was a force of good. That necessarily leads me to view, with considerable scepticism, the offender’s evidence generally.
136. See for example at [29].
I have had regard to the evidence of Mr Kilani in this respect. Whilst I have no doubt that Mr Kilani was giving his evidence honestly, the fact remains that his opinions are necessarily based largely upon what the offender told him. If what the offender said to Mr Kilani (which his generally consistent with what he said in his evidence) is rejected, then necessarily the foundation of Mr Kilani’s opinions falls away to a large degree. Significantly, Mr Kilani said [137] that it was only in April of this year that the offender had reached a point where he fully denounced his previous views of Islamic State. Whilst I accept that deradicalisation is a gradual process, it is not without significance that even on the offender’s own evidence, the process was completed only a short time before he was due to face sentence for his offending.
137. At T95.49.
In all of the circumstances, whilst the offender’s pleas of guilty are some evidence of contrition, I am sceptical as to whether the offender’s expressions of contrition in his evidence are genuine. Necessarily, that conclusion is inextricably linked to any assessment of the offender’s prospects of rehabilitation. Those prospects are necessarily dependent upon a renunciation of the views which were held by the offender at the time of his offending. In the circumstances, I am guarded about those prospects. In any event, in passing sentence for offences of this nature, the object of the Court is to punish, deter and incapacitate to the point where rehabilitation is likely to play a minor, if any, part. [138]

The offender’s pleas of guilty [139]

138. R v Martin (1999) 1 Cr App R 77 at 480 per Lord Bingham CJ; R v Khyam and ors [2008] EWCA Crim 1612 at [145]-[149]; R v Kahar [2016] EWCA 568 at [15].

139. s 16A(2)(g).

The Crown accepted that the offender was entitled to a discount of 25% to reflect the utilitarian value of his pleas of guilty. [140]

Personal deterrence [141]

140. Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1.

141. s 16A(2)(j).

Given the findings that I have made regarding the offender’s evidence, personal deterrence remains an important consideration on sentence.

General deterrence [142]

142. s 16A(2)(ja).

As previously noted [143] general deterrence is an important sentencing factor in matters of this nature. The present case is no exception to that principle.

The offender’s character, antecedents, age, physical and mental condition [144]

143. At [8]

144. s 16A(2)(m).

The offender gave evidence [145] that he was born in Bankstown and attended Bankstown Public School and Bankstown Boys High School. He completed his School Certificate at the end of Year 10, following which he undertook a 4 year apprenticeship before gaining employment as an electronic technician [146] . In his report, [147] Mr Machlin recorded that the offender told him that he had grown up in a generally well-functioning family unit, albeit one in which strict discipline was administered by his father.
145. Commencing at T29.11.
146. T29.45-T26.9.
147. At p 2.
The offender was married in 1988. He has six children ranging in ages from 4 to 23. He said [148] that he moved from Sydney to Young to look for a ‘quieter life in the country’. At the time of moving he had been employed installing and servicing solar panels [149] but once he moved he was unable to continue that employment due to the limited demand for such services.
148. Commencing at T31.28.
149. T32.22.
Mr Machlin recorded [150] that the offender reported no personal or family history of mental illness. The offender had said to Mr Machlin that he had a ‘suspicion’ that he may suffer from Asperger’s Syndrome. He also described features of OCD [151] . As to the first of those matters, Mr Machlin said [152] that it would be necessary to refer the offender for a further assessment in order to reach a definitive opinion. As to the second, Mr Machlin appeared to accept that what was reported to him indicated the presence of traits which were identifiable as being symptomatic of OCD, although he said that the offender did not have debilitating symptoms which would support the existence of a diagnosable condition.
150. At p 3 of his report.
151. At p. 3.
152. At p. 7.
Mr Machlin ultimately diagnosed the offender as suffering from an adjustment order with depressed mood [153] . However, it is evident that he attributed this condition to the stress of incarceration [154] . He did not identify the offender as suffering from any diagnosable illness, mental or otherwise, at the time of his offending. There is therefore nothing in that regard which moderates the need for general deterrence.
153. At p. 7 of his report.
154. P 7, para 5.
The offender appeared before the Local Court in 2016 and was charged with relatively minor firearms and drug related offences. In each case, he was dealt with pursuant s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). I have read the testimonials tendered on behalf of the offender. They variously describe him as being a person of excellent character, [155] who has never exhibited any violent or radical behaviour, [156] who is ‘reliable and trustworthy [157] and who has never previously shown any violent or radical behaviour. [158]
155. Testimonial of Amy Fenech.
156. Testimonial of Harla Zahab.
157. Testimonial of Houssam Raad.
158. Testimonial of Ieesha Zahab.
In the circumstances, and having regard to the testimonial evidence, I am prepared to conclude that the offender is a person of otherwise generally good character. However, given the nature of the offending, that fact is of less weight than might otherwise be the case. [159]
159. R v Lodhi (2006) 1999 FLR 364; [2006] NSWSC 691 at [91]-[92].

ORDERS:

In determining an appropriate sentence I have had regard to principles of totality. The Act requires that I have regard to the need to ensure that the offender is adequately punished for the offence. [160] All of the matters to which I have referred bear upon that issue.
160. Section 16A(2)(k).
The offender has been in custody since his arrest on 28 February 2017. Any sentences that I impose should be backdated accordingly.
I make the following orders:

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.

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.

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.

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.

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

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

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.

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 he fails, without reasonable excuse, to fulfil those conditions, he may be returned to custody.

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.

**********

Endnotes

Decision last updated: 07 June 2019

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 – Reference to Explanatory Memorandum issued at the time of enacting the legislation creating the offence CRIMINAL LAW – Offences – Sentence – Failing to comply with an order requiring the disclosure of passwords to encrypted devices – Where offender stated that he had acted out of anger – Frustration of police investigation as a result of information not being provided
Legislation Cited:	Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Code 1995 (Cth)
Cases Cited:	R v Atik [2007] VSC 299 R v Barot [2007] EWCA Crim 1119; [2007] Crim LR 741 R v Kahar [2016] EWCA 568 R v Khalid & ors [2017] NSWSC 1365 R v Khyam and ors [2008] EWCA Crim 1612 R v Lodhi (2006) 1999 FLR 364; [2006] NSWSC 691 R v Martin (1999) 1 Cr App R 77 Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1
Category:	Sentence
Parties:	Regina (Crown) Haisem Zahab (Offender)
Representation:	Counsel: R J H Maidment QC and R Glover (Crown) M Ramage SC (Offender) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Lawyers Corp (Offender)
File Number(s):	2017/63591
Publication restriction:	Nil