The Queen v Halis
[2021] VCC 1277
•7 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Unrestricted Suitable for Publication |
Case No. CR-19-02295
CR-19-02296
CR-19-02297
| THE QUEEN |
| v |
| HANIFI HALIS SAMED ERIKLIOGLU ERTUNC ERIKLIOGLU |
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JUDGE: | O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 15, 16, 19, 20, 22, 29–30 October 2020, 7–8 December 2020, 27–29 January 2021, 1–3, 25 February 2021, 1–5, 10–11, 15, 24, 26 March 2021, 15–18 June 2021 | |
DATE OF SENTENCE: | 7 September 2021 | |
CASE MAY BE CITED AS: | The Queen v Halis & Ors | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1277 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Conspiracy to commit acts in preparation for, or planning, a terrorist act involving an attack on members of the public with a firearm in pursuit of violent jihad; Negotiating and agreeing to the purchase of a firearm with undercover police operatives for the purpose of learning how to use a firearm in contemplation of future attack; Whether contribution and encouragement of undercover police reduced culpability and qualified objective gravity of offending; Preparation and/or planning not far advanced; Nature and extent of preparatory conduct limited where offenders called off agreement to purchase firearm before police intervention; Pleas of guilty; Utilitarian benefit of pleas of guilty made during pandemic; Reasonable prospects for rehabilitation afforded moderate weight; Requirement for emphasis on general deterrence and protection of the community in terrorist offending;
Legislation Cited: Criminal Code Act 1995 (Cth), Crimes Act 1914 (Cth), Sentencing Act 1991 (Vic)
Cases Cited:R v Cerantonio [2019] VSC 284; R v Lodhi (2006) 199 FLR 364; Lodhi v R (2007) 179 A Crim R 470; Benbrika v R (2010) 29 VR 593; R v Al-Kutobi [2016] NSWSC 1760; R v Khaja (No 5) [2018] NSWSC 238; DPP (Cth) v MHK (a pseudonym) (No 1) (2017) 52 VR 272; Elomar (2014) 300 FLR 323; DPP (Cth) v Besim [2017] VSCA 158; DPP v Besim (No 3) (2017) 52 VR 303; DPP (Cth) v Ali [2020] VSCA 330; Fattal v R [2013] VSCA 276; Abbas v R [2020] VSCA 80; DPP (Cth) v Galea [2020] VSC 750; R v Bayda; R v Namoa (No 8) [2019] NSWSC 94; R v Kruezi (2020) 356 FLR 59; Khalid v R (2020) 102 NSWLR 160; Baladjam v The Queen (2018) 341 FLR 162; Mohamed, Chaarani & Moukhaiber v The Queen [2019] VSC 498; R v Taleb (No 5) [2019] NSWSC 720; R v Kahar [2016] EWCA Crim 568; DPP (Cth) v Haidari (2013) 230 A Crim R 134; Kada v The Queen (2017) 270 A Crim R 197; R v Ali [2020] VSC 316; R v Taouk (1992) 65 A Crim R 387; DPP v Weybury [2018] VSCA 120; DPP (Cth) v Thomas (2016) 53 VR 546; Worboyes v The Queen [2021] VSCA 169; R v Ghazzawy [2017] NSWSC 474; R v Martin (1999) 1 Cr App R (S) 477; R v Touma [2008] NSWSC 1475
Sentence: 10 years imprisonment, non-parole period of 7 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr D. Renton with Ms S. Holmes | Commonwealth Director of Public Prosecutions |
| For the Accused Halis For the Accused S. Eriklioglu For the Accused E. Eriklioglu | Mr J. McMahon SC with Mr M. Stanton Mr P. Tehan QC with Ms K. Mildenhall Mr J. Kelly SC with Mr J. Anderson | Stary Norton Halphen Slades & Parsons James Dowsley & Associates |
HIS HONOUR:
Introduction
1Hanifi Halis, Samed Eriklioglu and Ertunc Eriklioglu have each pleaded guilty to one charge that between about 9 November 2018 and 19 November 2018 at Dallas and elsewhere in Victoria they conspired with each other to do acts in preparation for, or planning, a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Criminal Code Act 1995 (Cth).
2The terrorist act they had in contemplation at the time of the conspiracy was particularised as an action, or threat of action, involving an attack on members of the public with a firearm, with the intention of advancing Islam through violence.
3The acts carried out in preparation for, or planning, that terrorist act included negotiating and agreeing to the purchase of a firearm.
4The maximum penalty for this offence is imprisonment for life.
5The evidence supporting this charge was substantially derived from covert surveillance devices and the work of Victoria Police covert operative 309 (“CO 309”), who had been regularly attending at a number of Islamic prayer centres and mosques in the northern suburbs and in that context met and befriended the offenders.[1]
[1] Whilst I would ordinarily address these sentencing remarks directly to each of the offenders, for ease of reference I will refer to them collectively as “the offenders”. When dealing with their individual actions or circumstances, I will use their full names so as to distinguish between the Eriklioglu brothers.
6In order to put the offending in context and better explain how it unfolded, I will first provide a brief overview of the offending, summarise the evidence about the offenders’ activities collected in the eighteen months or so between May 2017 and November 2018 and then detail the circumstances as to the formation of the conspiracy.
Overview
7Hanifi Halis was born in Melbourne in September 1997. At the time of the conspiracy he lived with his parents in Greenvale, Melbourne. He had just turned 21.
8Samed Eriklioglu was born in Melbourne in September 1992. At the time of the conspiracy he lived with his parents and his grandmother at the family home in Campbellfield, Melbourne. He had just turned 26.
9Ertunc Eriklioglu was born in Melbourne in January 1988. At the time of the offending he lived with his wife and two young daughters at Geach St, Dallas in Melbourne. He was 30 years of age.
10Hanifi Halis met Samed and Ertunc Eriklioglu through the MyCentre Multicultural Youth Centre in their local area. Each of them had been brought up as “mainstream” Muslims but had become interested in learning more about their religion.
11Through the youth centre, they practiced what was called “street dawah”,[2] where they would travel into central Melbourne and attempt to engage with ordinary members of the public about their religion. Over time, they were exposed to sermons, lectures and videos, primarily through the internet, which portrayed the conflict in the Middle East, particularly in Syria, as oppressive and unjust to Muslims.
[2] Call to Islam (in this context, proselytise).
12Exposure to that kind of material radicalised the offenders such that they became believers in the righteousness of violent jihad [3] in that they had an obligation to wage violence against the perceived enemies of Islam. Over time, the offenders stopped attending mainstream mosques, preferring to keep to themselves and pray together in a prayer room set up in Ertunc Eriklioglu’s garage.
[3] Jihad, meaning a struggle. This concept exists along a spectrum from an individual's day-to-day struggle to live the life of a good Muslim, to an armed and violent undertaking to kill those who are opposed to Allah’s path and/or those oppressing Muslims: Summary of prosecution opening, Annexure A.
13This change in the behaviour and attitude of the offenders came to the attention of the authorities, who started to monitor their activities from mid-2017 onwards. In July of that year, the Eriklioglu brothers met Victoria police covert operative 309 (“CO 309”) at the Broadmeadows Mosque. A month or so later, Hanifi Halis was introduced CO 309 at the Al-Muntada Mosque in Coolaroo.
14In the following months, the covert operative developed what came to be a close friendship with the offenders and, as I explain in these reasons, a central figure in the circumstances leading to the offending. At the outset, it should be made clear that the activities of the covert operative were authorised by a Major Controlled Operation Authority issued under the Crimes Act 1914 (Cth).
15In March 2018, the Joint Counter Terrorism Team in Melbourne commenced a formal investigation (Operation Donabate) into the offenders and intensified the monitoring of their activities.
16Initially, the focus of the group was on what was called “defensive” jihad – the obligation to kill those opposed to Islam and oppressing Muslims overseas.[4] They wanted to travel to the Middle East and join the fighting in Syria. However, their aspirations were frustrated because their passports were cancelled by the authorities. In the case of Hanifi Halis, this occurred in January 2018, in the case of Samed Eriklioglu, in March 2018, and in the case of Ertunc Eriklioglu, in October 2018.
[4] ‘Offensive’ jihad was said to refer to killing non-Muslims in Australia.
17By early November 2018, investigators appeared to have formed the view that whilst the offenders had generally maintained their belief in violent jihad, they had not taken any practical steps towards committing an act of terrorism, and the investigation was to be scaled down. However, on 9 November 2018, a terrorist act was committed in central Melbourne in which one person was killed and two others seriously injured. The commission of that act focused the offenders’ attention on domestic terrorism.
18Shortly afterwards, in discussion with CO 309, they ultimately agreed to acquire a firearm through that covert operative and his friend, “John”, CO 239. The purpose for doing so was to engage in training with a firearm in preparation for, or planning, an attack on members of the public using a firearm. A price for a .22 calibre semi-automatic rifle was agreed at $1,800 and a deposit of $450 was paid to CO 239 on 17 November 2018. The balance was to be paid within a month.
19On 19 November 2018, Hanifi Halis asked CO 309 to tell “John” that the group wanted their money back and did not want to proceed with the purchase. At the time, Hanifi Halis indicated that “there’s four hundred people the AFP’s watching”. In the early hours of the following morning, all three offenders were arrested and charged.
Summary of activity between July 2017–March 2018
20In the period of 11 July 2017 to 1 March 2018, CO 309, using the alias “Ali”, came into contact with the offenders on eight occasions. The following examples demonstrate the thinking and activities of the offenders during that period, and how, over time, the covert operative was able to develop a close relationship with them.
21On the first occasion, CO 309 attended Broadmeadows Mosque and whilst in the car park was approached by Ertunc Eriklioglu, who introduced himself, Samed Eriklioglu, and their father. Ertunc Eriklioglu then took CO 309 inside the mosque.
22On 22 August 2017, CO 309 attended at the Al-Muntada Mosque where he spoke to Samed Eriklioglu about learning the Qur’an and was later introduced to Hanifi Halis. Ertunc Eriklioglu was also present.
23On 13 November 2017, CO 309 again went to the Al-Muntada Mosque and spoke with the offenders. On that occasion, members of the Lebanese Parliament were present, providing advice as to how to vote. The offenders spoke of their distaste for the mosque and said that they would not return to pray there because they had allowed kafir[5] into the mosque. Samed Eriklioglu explained that it was “haram[6] to vote in Islam”.
[5] Disbelievers/non-Muslims.
[6] Forbidden.
24Samed Eriklioglu drove CO 309 to Ertunc Eriklioglu’s residence at Geach St in Dallas. The garage of that house had been set up as a prayer room (“the Geach St garage”). During the journey Samed Eriklioglu spoke of Islamic scholar Ahmed Musa Jibril,[7] whom he said could explain in detail what was right and what was wrong.
[7] A Palestinian American Salafist scholar whose "clear and passionate speeches have made him popular amongst jihadis” – statement, Dr Roger Shanahan 6 February 2020 P 7 paragraph [33].
25On 20 November 2017, CO 309 met with the offenders at the Geach St garage. Hanifi Halis led the group through prayer and suggested that they use the word “training” as code for praying. Later, when discussing hadiths,[8] Samed Eriklioglu told the group that for “people lining up in the ranks before the battlefield, the reward is like – better than 60 years of worship.” Hanifi Halis responded, “Allah Akbar[9] bro”.
[8] Narrative/s of the Muslim Prophet Mohammed.
[9] Allah is Greater/Greatest.
26On 18 December 2017, CO 309 went to the Geach St garage to pray with the others. After prayer, CO 309, Ertunc Eriklioglu, Samed Eriklioglu and another person watched the Islamic State (“IS”) propaganda video “Flames of War”, which is narrated in English and features extreme violence, including beheadings, committed by IS fighters. Hanifi Halis was not present at this time.
27On 21 December 2017, CO 309 met with Ertunc Eriklioglu, Samed Eriklioglu and another person, where they discussed downloading the application Telegram. Ertunc Eriklioglu suggested that CO 309 could access “good books” about jihad – “full on stuff”. The group continued to discuss Telegram and the publications available through it, including “How to Survive in the West”. Hanifi Halis joined the group and indicated that he had read most of “How to Survive in the West”.[10]
[10] "… essentially a survival guide for would-be Muslim jihadists who live in non-Muslim majority countries or in Muslim countries where the government cracks down on Islamist activity. It includes sections on keeping one's real identity secret, raising money through fraud, scams and falsely claiming state benefits, communication security, training and accessing weapons, making bombs and a range of other issues": statement of Dr Roger Shanahan, 6 February 2020, p 23 [77](e)(vi).
28On 3 January 2018, Hanifi Halis attempted to leave Australia from Melbourne Airport to travel to Morocco. His passport was cancelled on the grounds that he would be likely to engage in conduct that might prejudice the security of Australia or a foreign country, and he was unable to depart.
Operation Donabate
29In March 2018, the Joint Counter Terrorism Team in Melbourne commenced an investigation named Operation Donabate into the activities of the offenders. As part of that operation, from 1 March 2018 leading up to the commencement of the conspiracy, CO 309 engaged with the offenders much more frequently (on at least 37 occasions). Listening devices were installed in the Geach St garage and in vehicles used by the offenders. They were also the subject of telephone intercepts and surveillance.
30Broadly summarised, the evidence gathered during this period shows that the group frequently discussed jihad and a desire to travel to Syria. They regularly shared and discussed extremist materials. The group was wary of being monitored by the authorities and took steps to minimise the risk of detection, such as using hand gestures and coded language and exercising caution when using the internet or talking on the phone.
31The investigation generated a very large volume of material. I will try to illustrate the sorts of activities the offenders engaged in during this period, albeit that the examples used represent only a small selection drawn from a lengthy and detailed summary of prosecution opening. I will first focus on what was gleaned during March 2018 to illustrate, in some reasonable detail, the offenders’ activities, and then describe the period of April to early November 2018 more generally.
March 2018
32On 1 March 2018, Ertunc Eriklioglu and Hanifi Halis had a conversation in the Geach St garage about studying. Hanifi Halis explained that he had looked up hadiths and stated that “Tafsir Qutb[11] is not for the beginner.” They then practiced Arabic pronunciation. Later that evening, Hanifi Halis read from chapter 1 of “Defence of Muslim Lands” by Abdullah Azzam.[12] He told Ertunc Eriklioglu that “it has everything here”. Ertunc Eriklioglu responded, “Allah Akbar”. Hanifi Halis went on to quote from chapter 3 of that book, for example: “To stand one hour in the battle line in the cause of Allah is better than 60 years of night prayer”.
[11] Qutb was "…one of the most important Islamist ideologues of modern times and he sought to establish an Islamic order on earth, through persuasion but also through violence if that was what was required to overthrow unjust rule. He believed that non-adherence to Islamic law was inexcusable…": Statement of Dr Roger Shanahan, 6 February 2020, 8 [34].
[12] Abdullah Azzam was a Sunni Islamic scholar, a founding member of Al Qaeda and known as the Father of Global Jihad: Summary of prosecution opening for plea, 14 [32].
33In the early afternoon of 2 March 2018, CO 309 attended at Al-Muntada and was afterwards invited to the Geach St garage by Ertunc Eriklioglu. They prayed, after which Hanifi Halis read from chapter 1 of “Defence of the Muslim Lands”. CO 309 left after a couple of hours whilst the others continued to listen to a recording of “Allah is Preparing Us for Victory” by Anwar al-Awlaki,[13] in which he spoke about Muslims fighting the Crusaders. Hanifi Halis highlighted and repeated excerpts from that recording.
[13] Anwar al-Awlaki was born in the United States to Yemeni parents and claimed to have undertaken Islamic studies in Saudi Arabia. He was acknowledged as a gifted orator, and as a young native English speaker was regarded as being able to relate well to Western Muslims. He settled in Yemen in 2004 and thereafter began actively advocating jihad and support for Al Qaeda. Through his writings and lectures, he is alleged to have inspired a number of notorious terrorist attacks in the West. In 2010, he was declared to be a “specially designated global terrorist”. He was killed in a drone strike in September 2011: Statement of Dr Roger Shanahan, 6 February 2020, PP 6 & 7 [20]–[30].
34On 5 March 2018, CO 309 met Ertunc Eriklioglu in the street as he was approaching the Geach St garage. Ertunc Eriklioglu said that he had been out all day studying in a park and that he had “just learnt stuff that was more obligatory than praying”. He made a gesture of a firearm with his hand and said, “It comes before prayer, it comes before Hajj,[14] comes before zakat,[15] comes before fasting … after you take Shahada,[16] first thing that’s rewarded,” and again made the gesture of a firearm.
[14] Pilgrimage of Muslims to the Islamic holy cities of Mecca and Medina.
[15] Obligatory alms.
[16] Proclamation of Islamic faith.
35After prayers, Hanifi Halis played a video on his tablet of Osama bin Laden walking in the desert, and then a second video narrated by Al-Awlaki titled “Martyrs of Allah”. CO 309 quoted Al-Awlaki: “… have two choices, hijrah[17] or jihad,” to which Hanifi Halis responded, “That’s it brother, that’s the haq.[18] There’s evidence for that as well”. In the recording being played, Al-Awlaki invites Muslims to either fight in the West or join the brothers on the fronts of jihad. Hanifi Halis explained to CO 309 that fard ayn[19] was obligatory for all Muslims and referred to chapter 1 of “Defence Of The Muslim Lands”.
[17] Migration in the cause of Allah.
[18] “Truth. On the truth. On the right”: Summary prosecution opening for plea, Annexure A.
[19] Individual duty. In a jihadi context, it refers to a duty upon the individual to take part in jihad “due to the absence of the collective” – Summary of prosecution opening for plea, Annexure A.
36In a recorded conversation of 8 March 2018, Ertunc Eriklioglu and Hanifi Halis discussed travel to Syria and other places. Hanifi Halis stated, “We’ll do it together bro”. They also discussed plain-sounding Christian names, such as Jack , that they might use, as recommended in the book “How to Survive in the West”.
37That evening, Samed Eriklioglu attended at Melbourne Airport, where he told Australian Border Force officers that he was travelling with his mother to Turkey for six months to look for a wife. He and his baggage were searched and his mobile phone examined. He was not allowed to leave. His passport was surrendered and subsequently cancelled for the same reasons given in respect of Hanifi Halis.
38On 10 March 2018, Hanifi Halis and Ertunc Eriklioglu engaged in a discussion at the Geach St garage during which Hanifi Halis quoted Azzam’s commentary on fard ayn and explained to Ertunc Eriklioglu where he could find it. He also suggested that Ertunc Eriklioglu watch Al-Awlaki’s video titled “Freedom Posthumous Call” (to jihad). Hanifi Halis later said “… need to prepare, learn the Arabic, understand what’s required iman[20] wise, financially, physically, mentally, everything. And then we [indistinct]”. Ertunc Eriklioglu responded, “Some people die straightaway yeah?” Hanifi Halis said, “Only if Allah wills bro”. Ertunc Eriklioglu and Hanifi Halis continued to discuss what material they should share and after Hanifi Halis left, Ertunc Eriklioglu was heard to play a recording of “State of the Ummah”[21] by Al-Awlaki, which references another of his lectures, “44 Ways of Supporting Jihad”.
[20] Faith/Islamic faith.
[21] Nation of Islam. All Muslims.
39On 18 March 2018, Ertunc Eriklioglu and Hanifi Halis together listened to “Explanation of the Three Fundamental Principles of Tawheed”[22] by Jibril at the garage. The lecture was about patience in acquiring knowledge. When it concluded, Ertunc Eriklioglu commented, “It’s way more than that bro, after I saw this, I was like, I’m telling you bro, I’m doing it.” Hanifi Halis responded, “It’s fard ayn according to the sheikh”. Shortly afterwards, Ertunc Eriklioglu excitedly read a list of benefits of martyrdom from “jihad in the Qur’an and Sunnah”[23].
[22] Oneness of Allah/Islamic monotheism.
[23] Way of life of the Muslim Prophet Mohamed.
40Later that evening, CO 309 attended the garage, where he and the three offenders listened to and discussed another recording from Al-Awlaki. At one point, Hanifi Halis described jihad as an obligation and said that it was not voluntary.
41On 26 March 2018, CO 309 went to the Geach St garage, where he was given a USB device onto which Ertunc Eriklioglu said he had put “everything”. Included in the material were documents such as “Black Flags from the Islamic State”, “The Book of Jihad”, “Book of a Mujahideen”, “44 Ways to Support Jihad”, “Suicide or Martyrdom”, “The Islamic State”, and “The Undead Warriors”. It was clear that the group were engaging with this sort of material regularly, and they invited CO 309 to do likewise.
42On 29 March 2018, Ertunc Eriklioglu and Hanifi Halis listened to “25 Promises Of Allah to the Believers” by Al-Awlaki. Afterwards, Hanifi Halis stated, “Al-Awlaki was saying not to be a copycat, not to be a replication of the norms living in the condition of the kuffar.[24] Don’t be like them, as soon as you start being like them that’s it bro… this religion needs steadfast, strong believers”.
[24] Alternate spelling of kafir (n 4).
43That evening, CO 309 arrived and the group discussed Qur’anic verses. Just before CO 309 was about to leave, Hanifi Halis told Ertunc Eriklioglu and CO 309 that “we should stick together brother,” and Ertunc Eriklioglu said, “Yeah we should”. Hanifi Halis then said, whilst gesturing a flying motion with his hand, “Because subhanallah,[25] like me as well brother, it’s not good bro, alhumdulillah,”[26] which was a reference to Hanifi Halis being prevented from travelling overseas in January 2018. Ertunc Eriklioglu said that “it’s not good to stay on your own brother cause situations bro…”. Hanifi Halis said, “…if like if I was going to stay this situation Alhumdullillah, if I stayed on my own – different”. Ertunc Eriklioglu and Hanifi Halis agreed that Allah knows best and that some things are a test.
[25] Exalted is Allah.
[26] Thanks to Allah/praise be to Allah.
April–Early November 2018
44In the following months, CO 309 and the offenders continued to meet at the Geach St garage and engage in the same sorts of discussions and activities as they had in March. In the following section I provide some further examples from the period of April to early November 2018. I should again emphasise that these examples are taken from a much larger summary set out in the summary of opening for plea.
45On 2 April 2018, Ertunc Eriklioglu told CO 309 about meeting up with some other “brothers” the previous day, and said, “So we had a bit of a talk about this,” referring to the Qur’an, “and this…”, making a gesture of a firearm with his hand.
46On 12 April 2018, Ertunc Eriklioglu and Hanifi Halis had a conversation about ways to leave Australia. Hanifi Halis said he had “been thinking of different tactics. Musa tried to go”. (This was a reference to the convicted Melbourne terrorist Musa Cerantonio and his plan to travel to the Philippines by boat with five others to engage in a foreign incursion).[27]
[27] R v Cerantonio [2019] VSC 284.
47On 21 April 2018, Ertunc Eriklioglu told Hanifi Halis that “this is not a good place,” and Hanifi Halis responded, “The better of two choices”. On 3 May 2018, they discussed with CO 309 how much money would be needed to get to Syria.
48On 25 April 2018, CO 309 and the three offenders discussed funds that might be collected for the benefit of fighters overseas.
49On 6 May 2018, Ertunc Eriklioglu dropped Hanifi Halis at his home address. Hanifi Halis’s father approached Ertunc Eriklioglu and explained that he was concerned about the direction of Hanifi Halis’s religious views. His son had won awards at university but had now dropped out. He wanted Ertunc Eriklioglu to speak to Hanifi Halis and to tell him not to “pull away from society”. Ertunc Eriklioglu responded, “Yeah”.
50On 5 June 2018, Ertunc Eriklioglu and Samed Eriklioglu travelled to Sydney to participate in Itikaf.[28] Ertunc Eriklioglu and Samed Eriklioglu later explained to CO 309 that they had been asked to leave the mosque because they had spoken “loosely”. Ertunc Eriklioglu gestured flying and holding a gun in his hands as this was explained.
[28] Religious seclusion at a Mosque or Islamic prayer centre during the last ten days of Ramadan.
51On 7 July 2018, the offenders were at the Geach St garage with another associate, Trevor Aggrey. They discussed the reasons for jihad outlined in Azzam’s book “Join the Caravan”. Ertunc Eriklioglu said, “[inaudible] spread to Australia so basically we all need to do something, every single one of us”. Hanifi Halis said, “This is a hush-hush topic,” and then recounted the circumstances of the death of Al-Awlaki, saying, “He spoke the haq… He was calling people, telling the truth, wake up in the West, wake up, wake up, the youth, return back to the command of Allah”. They later listened to a recording of a speech by Azzam about jihad.
52On 11 July 2018, CO 309 attended the Geach St garage, where Ertunc Eriklioglu and Samed Eriklioglu were studying Arabic. CO 309 asked Ertunc Eriklioglu if he could teach him how to get ready “for the right stuff” and said, “I need to be on… the right path”. Ertunc Eriklioglu said that “there is knowledge out there,” and “not many people know about this stuff,” as he made a gesture of a gun with his hands. CO 309 asked Ertunc Eriklioglu about the best way to be prepared and said that he wants to have a proper death. Ertunc Eriklioglu told CO 309 that Allah provides for everything “and inshallah[29] bro, like all this comes” and gestured with his right hand a flying motion, and then made a gesture of a gun with his hands.
[29] Allah willing.
53On 1 August 2018, Samed Eriklioglu told CO 309 that he was meeting with someone that night who was sending money for the “needy”, while again making a hand gesture of a gun. Ertunc Eriklioglu and Hanifi Halis spoke of others travelling to Syria and Iraq to fight. A short time later, Samed Eriklioglu said he too would go overseas. Ertunc Eriklioglu indicated that was why they were studying Arabic, so that they could “…communicate there, so we can get closer to the book of Allah and be steadfast in the ranks”.
54The following night, Ertunc Eriklioglu and Hanifi Halis were in the garage listening to a lecture by Al-Awlaki. After the lecture had finished, Samed Eriklioglu said, “Maybe if you can’t go there, gotta do something here,” meaning that if they couldn’t travel offshore to fight in jihad, they would have to undertake jihad here in Australia.
55The discussions about who could be trusted and the need for caution when using phones demonstrated that the offenders were aware of the authorities’ interest in them. On occasion, they also spoke of the need for physical training and lifting weights to prepare to carry a gun for a long time.
56On 11 August 2018, the three offenders were at the Geach St garage with two cousins of the Eriklioglus, Haldan Kirbas and Hakan Kirbas. They listened to recordings from a Turkish jihadist website and then discussed jihad, the conflict in Syria, and travelling to the Middle East to fight for Allah. They also listened to a recording about the terrorist attack on the Charlie Hebdo office in Paris. One of the cousins said, “One point he is missing is innocent life, how do you justify that?”
Ertunc Eriklioglu replied, “Innocent, no one is innocent here”.
57On 24 August 2018, Samed Eriklioglu and Ertunc Eriklioglu attended a lunch at CO 309’s apartment. During the discussion Ertunc Eriklioglu sought to reinforce the idea that the group’s interpretation of the material they had been sharing was the correct one, saying, “…you cannot get that knowledge unless Allah put it there for you. You may read the same hadiths, you may not see it the way that that person (indistinct)…”. CO 239 (“John”) attended the apartment. He was introduced to Ertunc and Samed Eriklioglu and joined them for lunch.
58A few days later, on 27 August 2018, Hanifi Halis was recorded complaining that his mother was angry with him because she likely saw things on his laptop, “jihadi stuff”; “…you’re going extreme this that,” and, “she started arguing about me and how I’ve changed and stuff”.
59Around the end of August, CO 309’s passport was purportedly cancelled. CO 309 told Hanifi Halis that he had lost the energy and needed something to motivate him. Hanifi Halis replied that it was better to “be with brothers” than to be alone “in this situation”. CO 309 asked Hanifi Halis what his plan would be if he didn’t manage to travel to join jihad. Hanifi Halis said that he had asked this of the sheikh, and “at the moment yani I’m just being patient about it bro inshallah because I, I don’t know myself as well”.
60On 2 September 2018, Ertunc Eriklioglu read “10 Qualities to be the Commander of the Mujahideen” to Samed Eriklioglu and Hanifi Halis. There was a discussion about owning firearms and the need for more brothers who have “knowledge”. Later, Hanifi Halis read from “The Legal Status of Using Weapons of Mass Destruction Against Infidels” by Nasir Bin Hamad Al-Fahd.[30]
[30] A radical Salafist cleric from Saudi Arabia who argued that the use of weapons of mass destruction against the United States and the European Union was religiously permissible – Statement of Dr Roger Shanahan, 6 February 2020, 9 [38].
61On 13 September 2018, Samed Eriklioglu and Ertunc Eriklioglu discussed the dangers of reading about jihad and seeking knowledge. They confessed to their lack of knowledge on the subject and Ertunc Eriklioglu said, “We gotta be careful how many we read now, just in case…“.
62The following week, Ertunc Eriklioglu and Samed Eriklioglu discussed Australians fighting overseas in Syria. Samed Eriklioglu said that there were no Australians fighting there because Australia stops them all from travelling. Ertunc Eriklioglu said, “We gotta go there man. Make dua[31] for the brothers over there, they’re going through tough times you know”. They discussed doing training when they got there.
[31] Supplication.
63On 15 October 2018, CO 309 attended the Geach St garage where all offenders were present. Ertunc Eriklioglu informed CO 309 that ASIO had visited him and that his passport had been cancelled. He indicated that he would nevertheless find a way to travel by water. Hanifi Halis played three short videos to the group that showed people running, training with firearms and undertaking other physical workouts. CO 309 commented on the firearms training and instructed the others on how to hold firearms as in the video. That exchange is particularly relevant to later conversations which occurred during the currency of the conspiracy.
64On 28 October 2018, Samed Eriklioglu and Hanifi Halis were present in the garage when Hanifi Halis read verses from the publication titled “Fiqh of Jihad – Understanding the Obligation Part One”. They then discussed the need for a hunting license and the different types of weapons for different ranges. Hanifi Halis stated, “Allah commands Muslims to prepare as much as possible”.
65On 30 October 2018, Ertunc Eriklioglu told CO 309 about the group’s plans to do dawah and give out pamphlets about democracy at the mosques, and asked CO 309 to join them. Ertunc Eriklioglu also spoke of training, running and swimming, and Hanifi Halis commented that all of them needed to get fit.
66On the night of 1 November 2018, the three offenders listened to a recording in Turkish by Baltaci.[32] The lecture was about how the media are against Islam and oppressing Islam, how they want to remove God’s chosen language, how groups are suppressing Islam by putting Muslims in prison, and that life without jihad is meaningless. Ertunc Eriklioglu and Hanifi Halis discussed the lecture, referring to the kuffar. Hanifi Halis said, “They try to scare, they’re the ones who are scared”.
[32] Turkish Sunni preacher who was convicted of terrorism charges in July 2017 – Statement of Dr Roger Shanahan, 6 February 2020, 10 [43].
67On 7 November 2018, Samed Eriklioglu and Hanifi Halis had a discussion at the Geach St garage about Samed Eriklioglu’s parents wanting to travel to Turkey. Samed Eriklioglu wanted to know if it was possible for him to travel and whether it might be worth appealing his passport cancellation to the Administrative Appeals Tribunal. Hanifi Halis advised that many scholars clearly say that he could not attend a “kuffar court”. They had a further conversation in Turkish which was indistinct, but which appeared to canvass other options for travel. The three offenders also spoke of obtaining a Turkish passport and watched a YouTube video produced by the Australian Border Force demonstrating the use of smart chip passports at Australian international airports.
68Later, Ertunc Eriklioglu commented, “Like, we don’t want to be extremist bro [indistinct]. We don’t want to be extremists. We don’t want to be extremists in anything, anything, whether it is looking, whether it is listening, whether it is patience, whether it is dawah, whether it is anything.”
Conspiracy to do an act in preparation of, or planning, a terrorist act
69The conspiracy spans the period 9–19 November 2018.
70At around 4pm on Friday, 9 November 2018, Hassan Khalif Shire Ali engaged in a terrorist attack. He set a car containing LP Gas bottles on fire and attacked three members of the public with a knife near the corner of Bourke and Swanston streets in the Melbourne CBD. One of the victims of the attack suffered fatal injuries, while the other two suffered serious but non-life threatening injuries. Shire Ali was fatally shot by police. The attack received considerable media attention.
71At about 8pm that night, CO 309 went to the Geach St garage, where he spoke with the offenders. He invited them to a farewell dinner at his apartment on Monday, 12 November 2018, as he said he was leaving Melbourne to live interstate. CO 309 informed the group, “If you guys find [a way to join jihad] call me next day and I’ll come. Any opening you call me.”
72After prayers, CO 309 asked the offenders whether they had seen the news today about someone stabbing people in the city. Hanifi Halis responded, “Oh yeah? Was he Muslim?” Shortly after 9pm, following some further discussion, CO 309 left.
73Just after 10pm, Ertunc Eriklioglu returned to the garage, having been inside the house. He told Hanifi Halis and Samed Eriklioglu that he had big news and proceeded to recount the Bourke St incident. In so doing he stated, “…pretty sure he was trying to stab the police. Shaheed shaheed[33] bro… subhanallah bro, that’s amazing.” Hanifi Halis said, “…there’s knowledge here bro, there’s knowledge”. Later in the conversation Ertunc Eriklioglu said, “We do something yeah? Yeah [indistinct] let’s do something”. Hanifi Halis responded that Sheikh Nasir Al-Fahd had written a fatwa[34] on this and that he had read his book referring to something being done in a good manner.[35] Hanifi Halis then advised Ertunc Eriklioglu that he had received advice from a sheikh that he had been told to get a family, work a bit, and sound normal.
[33] Martyr.
[34] Islamic decree. Religious opinion.
[35] The second preliminary of Al-Fahd’s "ruling on using weapons of mass destruction against the infidels" is that the basic rule of killing is to do it in a good manner.
74During the afternoon of 12 November 2018, Hanifi Halis, Samed Eriklioglu and Ertunc Eriklioglu met at the Geach St garage, where they engaged in a number of discussions and listened to a Qur’anic recording which advised that those who fear Allah will have paradise, and the criminals “will be led to the hellfire and thirsty they will scream”.
75Shortly after 7.30pm, they attended at CO 309’s apartment for his farewell dinner. CO 309 mentioned a “…brother I was telling you – the one who got taken away in the city? He was Muslim.” The group then discussed jihad and the need to gain knowledge. The discussion included references to rewards for both onshore and offshore jihad. They agreed they needed to plan properly.
76After dinner the discussion returned to the terrorist attack. Ertunc Eriklioglu commented that Shire Ali was a shaheed and Samed Eriklioglu appeared to agree. The discussion then turned to knowledge of firearms:
H Halis: Do you know how
(inaudible) do you know how to, um – you know this
C.O ALI: mm.
E Eriklioglu: I don't know – I don't know bro, do you know how to –
C.O ALI: I bought mine from Murat
H Halis: Nah, nah – this
C.O ALI: Yes, yeah.
H Halis: I don’t really
C.O ALI: I do, I know.
S Eriklioglu: Oh, yeah?
C.O ALI: When I was in Africa I did.
S Eriklioglu: Oh, yeah.
C.O ALI: Since I was, um, 12 to 15 –
E Eriklioglu: Subhanallah
C.O ALI: Yeah.
S Eriklioglu: Experience.
C.O ALI: (laughs) Yeah.
H Halis: 'Cause if you get like here, – they thing you
C.O ALI: Mm.
H Halis: He’s got one now –
C.O ALI: Mm.
S Eriklioglu: (inaudible)
E Eriklioglu: Yeah.
C.O ALI: Oh, I know how to do it.
H Halis: Okay.
C.O ALI: Three to four - three or four years, yeah.
E Eriklioglu: (inaudible) Inshallah bro.
Give me some kind of training (inaudible)
C.O ALI: Mm, yeah.
H Halis: (inaudible)
C.O ALI: Yeah, well do –
H Halis: (inaudible)
C.O ALI: We’ll training whenever you guys want.
E Eriklioglu: We've gotta go for our L’s and P’s -
C.O ALI: Yeah.
S Eriklioglu: First. (laughs)
H Halis: And I gotta get my manual license.
C.O ALI: Yeah, mm. (laughs)
E Eriklioglu: (inaudible)
C.O ALI: Very true. Oh, I think a couple of practices -
E Eriklioglu: Yeah.
C.O ALI: Teach you the basics.
S Eriklioglu: Inshallah bro.
C.O ALI: Put it in -
H Halis: Mm, oh, yeah.
C.O ALI: How to control.
E Eriklioglu: That's it.
C.O ALI: How to hold it.
S Eriklioglu: Easy, yeah.
C.O ALI: Easy, easy.[36]
[36] UCO transcript, 12 November 2018, 39-41.
77CO 309 then suggested that “John” could find firearms for the group.
H Halis: Have more potatoes –
C.O ALI: Ah, you know – yo know John? Nah, you can. You remember John? That guy who used to live here, the guy that I was telling you about–
H Halis: Yeah.
C.O ALI: Yeah, 'cause he used to, ah – he took me, um, hunting (inaudible)
S Eriklioglu: I might have some, ah dessert bro
H Halis: (inaudible)
E Eriklioglu: (inaudible) Yeah.
C.O ALI: So – deer hunting
C.O ALI: Yeah.
E Eriklioglu: He got some.
C.O ALI: Yeah, he can find them, yeah.
H Halis: Oh, how is John
C.O ALI: Yeah, he can find them, yeah.
H Halis: Oh, yeah?
C.O ALI: 'Cause he goes deer hunting
H Halis: He has contact?
C.O ALI: Yeah, yeah, yeah. He (inaudible)
S Eriklioglu: (inaudible)
C.O ALI: Contact. The guy that you met here, remember that guy?
H Halis: Yeah, yeah, yeah.
C.O ALI: Remember that guy
E Eriklioglu: Oh, yeah.
C.O ALI: 'Cause he used to live in, um, new south wales, when he had issues with his wife he came here. But it took me months for, um -
E Eriklioglu: Mm
C.O ALI: Yeah, to – yeah. (clears throat) 'cause he -
H Halis: Can you contact him, you know (inaudible)
E Eriklioglu: Yeah, yeah.
C.O ALI: Yeah.
S Eriklioglu: (inaudible)
C.O ALI: And – yeah, he knows me, I’ll just, I’ll just tell him whatever I have to tell him, it's for me.
S Eriklioglu: Yeah.
C.O ALI: Yeah.
H Halis: Subhanallah Allah found us a way -
E Eriklioglu: Subhanallah
E Eriklioglu: Bro.
S Eriklioglu: Yeah, yeah.
H Halis: Subhanallah
E Eriklioglu: We were thinking how are we going to do this
H Halis: Subhanallah
C.O ALI: Yeah, he used to have a magazine.
E Eriklioglu: Yeah.
C.O ALI: (inaudible)
E Eriklioglu: (inaudible)
C.O ALI: I think it's in my car –
H Halis: Like does he have the air ones or proper?
C.O ALI: He has, like, proper ones.
H Halis: Subhanallah
E Eriklioglu: Alhamdulillah
C.O ALI: The proper one.
H Halis: Alhamdulillah
C.O ALI: 'Cause he took me deer hunting, like, to – to (inaudible)
H Halis: Not like the air rifles, yeah?
C.O ALI: Nah, nah, nah, the proper – proper ones.
H Halis: Subhanallah
C.O ALI: The one for hunting animals.
S Eriklioglu: Hunting?
C.O ALI: Yeah.
S Eriklioglu: Oh, yeah.
C.O ALI: Yeah.[37]
[37] UCO transcript, 12 November 2018, 42-44.
78CO 309 stated “… if you want to talk to him [John] I can just connect you… just let me know”.[38] Further on, CO 309 referred to the probable cost:
[38] Ibid 46.
C.O ALI: But from what I remember, John said, um, 1,000 to 2,000 then you get a good one.
E Eriklioglu: Oh, yeah.
C.O ALI: You don't –
S Eriklioglu: (inaudible)
C.O ALI: Want something that's gonna -
E Eriklioglu: Nah.
C.O ALI: Yeah, you want something with power.
E Eriklioglu: Yeah.
S Eriklioglu: Yeah.
H Halis: Yeah, quick.
E Eriklioglu: That's (inaudible)
C.O ALI: Yeah.
S Eriklioglu: Yeah.
C.O ALI: Yeah.
Halis: So you can get them from here yeah?
C.O ALI: Yeah.
S Eriklioglu: Regarding that one we can spend.
79The group then discussed what they might tell CO 239 about why they wanted the firearm. Shortly afterwards, whilst making a gesture of a gun with his right hand, Ertunc Eriklioglu said, “We got someone [CO 239] who’s got this [access to firearms], we got someone [CO 309] who’s used this [firearms], and we are here talking about this [violent jihad], got the knowledge for it”.[39] The following exchange then occurred:
[39] Ibid 62–63.
C.O ALI: (inaudible) If something like this this is gonna happen, as long as we win, we get a bigger number than them.
E Eriklioglu: Mm.
C.O ALI: So even if they get me, I’m just one, but if we get 10 of them, 20 of them –
E Eriklioglu: Yeah.
C.O ALI: Allahu Akbar
E Eriklioglu: Yeah. (laughs)
H Halis: (inaudible)
C.O ALI: Yeah.
E Eriklioglu: Because what's the point of this?
C.O ALI: Exactly, nah, nah -
S Eriklioglu: (inaudible)
E Eriklioglu: (inaudible)
C.O ALI: Nah, I don't have time for that
Halis: Nah, you're seeking that–
H Halis: (inaudible)
S Eriklioglu: You're seeking that though.
C.O ALI: Yeah.
E Eriklioglu: That's it.
C.O ALI: And I’m like, yeah, if I was like if I let go and they get me
E Eriklioglu: (inaudible)
C.O ALI: (inaudible) I’ll go everyone may be I’ll jump there if we have to.
E Eriklioglu: Even if you feel a bit of pain (inaudible)
C.O ALI: Yeah.
E Eriklioglu: Try, try to hold
C.O ALI: Yeah.
S Eriklioglu: (inaudible) Don’t let go man.
H Halis: (laughs)
S Eriklioglu: (inaudible) Don’t let go bro
C.O ALI: Mm.
S Eriklioglu: Man.
E Eriklioglu: Nah (inaudible)
S Eriklioglu: (inaudible) Don’t get caught bro.
C.O ALI: (inaudible) Bro, mm.
H Halis: (inaudible) You don’t let go
E Eriklioglu: 'Cause it's when it's the faith -
C.O ALI: Mm
H Halis: Mixed with -
S Eriklioglu: Yeah.
H Halis: That pain, bro, Allah (inaudible)
E Eriklioglu: Yeah.[40]
[40] Ibid 64–65.
80The group prayed again, after which a code was agreed upon to be used in future communications about firearms. Hanifi Halis wrote the code down, which related to “iqra books”,[41] on two pieces of paper towel. He retained one and gave the other to CO 309. Ertunc Eriklioglu later warned CO 309 to destroy the paper towel and not to discuss anything over the phone as they did not have a firearm licence and so could not be caught with guns. Samed Eriklioglu referred to “wearing armour” and was told by Ertunc Eriklioglu, “Now you don’t need that, you want to thing” (a reference to becoming a martyr).
[41] Literally, the word “iqra” means “read”. Iqra is also the name of Islamic websites, Islamic television channels and Islamic media organisations and publications.
81CO 309 suggested that they needed to buy the gun as soon as possible, because guns can be hard to acquire. Ertunc Eriklioglu cautioned against this, stating, “I reckon it’s way too early bro, because there is no plan. Way too early. And plus where are you gonna put it? ... I wouldn’t get it, bro, at this time, too early”.[42] Hanifi Halis indicated that his view was that they couldn’t take too long.
[42] UCO transcript, 12 November 2018, 102–103.
82On 13 November 2018, Hanifi Halis sent a text message to CO 309 referencing the agreed code with a link to “iqra books”. CO 309 responded “I don’t know yet about the iqra books, will txt u [sic] as soon as I know”. That afternoon, Hanifi Halis read to Samed Eriklioglu rulings on defensive and offensive jihad, quoting excerpts from the book titled “Fiqh of Jihad – Understanding the Obligation”. Hanifi Halis commented to Samed Eriklioglu, and later to Ertunc Eriklioglu, that “we need to do deeds bro [indistinct] everyone dies bro [indistinct]”. Later that evening, CO 309 advised that he did not travel interstate and that he would get back to Hanifi Halis about the “iqra books”.
83On the night of 14 November 2018, CO 309 went to the Geach St garage. Hanifi Halis asked him, “Is there iqra books [firearms] bro?” CO 309 suggested they meet with CO 239 to discuss what they wanted. After prayer, Hanifi Halis played Al-Awlaki’s “Call to Jihad” in which he called on Muslims to either fight in the West or join the brothers in the fronts of jihad in Afghanistan, Iraq and Somalia. At that point in the video Hanifi Halis commented, “There’s your fatwa”. Afterwards, the group continued to discuss the prospective purchase of the firearm, including what they would tell John the firearm would be used for.
84At one point, Samed Eriklioglu, Hanifi Halis and CO 309 discussed whether night-time or after fajr[43] would be the best time “for doing stuff” (an attack). Samed Eriklioglu suggested that “night vision would be good too”. As Samed Eriklioglu and CO 309 walked outside to leave, CO 309 queried whether after fajr was too early. Samed Eriklioglu said, “Oh yeah. You mean when, when everyone is piled up, the better oh yeah, but a main area,” and pointed towards the Melbourne central business district. CO 309 queried, “Like [indistinct] city?” and Samed Eriklioglu replied, “Yeah”.
[43] Dawn prayer.
85On 15 November 2018, Hanifi Halis and Samed Eriklioglu went to CO 309’s apartment, where CO 239 was present also. They spent about an hour preparing CO 239 to take the Shahada.[44] Afterwards, Hanifi Halis said, “Oh yeah, we’re gonna ask bro ‘cause we wanna go hunting… we need to like know about, like the rifles and stuff. Like, cause we’re like hunting and stuff. If the Creator permits you can go hunting with these things, these rifles.” Samed Eriklioglu, Hanifi Halis and CO 239 then discussed different types of firearms, calibres, distances they could shoot and firearm licenses. Hanifi Halis said he preferred “the big sort” and later referred to M4 military rifles. CO 239 produced images of different firearms on his mobile phone, which he showed to the offenders.
[44] Islamic proclamation of faith.
86Towards the end of the discussion, Hanifi Halis confirmed to CO 239 that “we are interested man, fairly interested”. CO 239 offered to find out what sort of deposit would be required to secure the firearm so that the supplier did not sell it to anyone else. Hanifi Halis agreed, saying, “Yeah… when you’re free man, we can start off like learning and stuff”. Samed Eriklioglu and Hanifi Halis returned to Geach St where they advised Ertunc Eriklioglu of their discussions.
87Just after 8pm on 16 November 2018, CO 239 and CO 309 arrived at the Geach St garage. They went for coffee with all of the offenders. CO 239 discussed specific guns that might be available to purchase. Photos on CO 239’s phone of a .22 calibre semiautomatic rifle, a 12 gauge over-under shotgun and a pump-action shotgun were shown to Ertunc Eriklioglu, who had not been present the previous evening. At one point, Ertunc Eriklioglu asked, “…and what about pistols and stuff, you get them too, don’t you?”
88Ultimately, it was agreed that the .22 calibre semiautomatic rifle would be purchased for $1,800. Hanifi Halis agreed to pay a $300 deposit and all three offenders agreed to pay the balance within a month.
89On the night of 17 November 2018, CO 309 and CO 239 attended at the Geach St garage. After prayers there was some general discussion. Hanifi Halis was recorded talking about oppressors bombing their sisters and brothers, and saying that their brothers experience a lot of suffering and torture. After Ertunc Eriklioglu went inside, CO 239 asked Hanifi Halis, “…you still, you still want the ah?” Hanifi Halis said, “Yeah, yeah”. Hanifi Halis then retrieved $450 from his wallet and handed it to CO 239 as a deposit for the .22 rifle. Once Ertunc Eriklioglu returned to the garage, Hanifi Halis said to CO 239, “If you can keep it [the firearm] brother, because they can come any time and raid the house”. They discussed ammunition for the rifle and Hanifi Halis suggested that 5,000 rounds would probably be enough.
90When asked by CO 239 about paying the rest of the money for the firearm, Hanifi Halis said, “Probably like a month and a bit, a month,” and Ertunc Eriklioglu said, “We’ll stick with a month bro”. CO 239 asked if the group wanted him to look for other stuff for the future and Hanifi Halis and he discussed handguns and military-style rifles. The conversation then turned to whether CO 239 would be able to train the offenders with firearms. They discussed going shooting in the near future.
91On 18 November 2018, the offenders met at the Geach St garage and, after prayers, watched and discussed a number of jihadi videos. Hanifi Halis was heard to suggest that they listen to a recording, and saying, “…we gotta, need a little motivation”.
92About 1.35pm on 19 November 2018, the offenders had a discussion at the garage. Hanifi Halis told Ertunc Eriklioglu that a brother who had a license told him, “If you get caught with that, holding it, very big fine [indistinct]”. Shortly afterwards, Hanifi Halis commented, “I just thought bro, if we want to do it bro,” and Ertunc Eriklioglu responded, “We gotta do it together”. The discussion between all three continued, with Hanifi Halis commenting, “I’ll try to get your money back bro… It’s not safe”. Samed Eriklioglu suggested that Hanifi Halis tells CO 239 that “we changed our mind”. Ertunc Eriklioglu commented, “When thing came by it wasn’t even my idea bro in the first place [indistinct]”. Hanifi Halis responded, “Yeah, I know, it built up quick [indistinct] quick actions”.
93That night, CO 309 attended the garage. CO 239 was not with him. Hanifi Halis said, “I was gonna say, inshallah, can you tell him I want to get my money back bro”. After prayers Hanifi Halis told CO 309 that “there’s four hundred people the AFP’s watching,” and that he had been speaking to a brother who had a licence: “He’s got his [indistinct] licence. He said to me that if they [police] catch you [with a firearm] and it’s not in your name…” Hanifi Halis went on to say, “I asked the sheikh about this. He said act normal, start acting normal, [indistinct] start acting normal, family, get married, this and that [indistinct] settle and then… yeah”. Hanifi Halis told CO 309 that “Allah’s testing us bro”. CO 309 indicated that he would bring John back with him the following evening. Hanifi Halis told him, “You don’t need to tell him the reason why, just say, like, I want my money back”.
Arrests
94All three offenders were arrested in the early hours of the following morning, 20 November 2018, at their respective home addresses. Investigators seized various incriminatory items from each of those residences.
95In the case of Hanifi Halis, items seized included two phones and four USB devices, a copy of the Herald Sun newspaper dated 10 November 2018 (relating to the Bourke St terrorist attack of 9 November 2018) and one paper towel containing handwritten notes (compiled by Hanifi Halis on the evening of 12 November 2018, containing codewords to be used when discussing the purchase of firearms).
96When questioned by police, Hanifi Halis exercised his right to remain silent.
97In the case of Samed Eriklioglu, items seized included a phone, a USB device and a number of CDs and DVDs.
98When questioned by police, Samed Eriklioglu made a number of significant admissions, albeit somewhat reluctantly, as the following passage illustrates:
Q882. Yeah. So, when you were discussing this Monday – that Monday night [12 November 2018] at his house during this dinner were you talking about getting guns, body armour, killing as many people as possible? Was that about hunting or was that about committing or planning a terrorist attack?
A Probably, like, some – as I said, I say – I say stuff and it’s – it’s like a joke, you know, I just say it.
Q883. So, you were saying it – I’m asking you.
A Yeah.
Q884. Were you saying it about hunting?
A Yeah.
Q885. Or were you – you’ve said, “Yeah.” Or are you saying it about an attack?
A I probably said both of them, so yeah.
Q886. Samed.
A I – I did say like hunting and - - -
Q887. I know you said.
A Yeah.
Q888. You said, “We will tell John we were going hunting.”
A Yeah.
Q889. But everyone else there knew what the real intention was. Knew what we were really talking about.
A Yeah, but I just – they can’t – like, no one can know the intention, you know. As – as we cancelled it and that’s it, like.
Q890. Your intention at that time?
A Yeah, but many – there’s many Muslims have, like, that intention, like, that doesn’t mean that’s their intention, you know? Like, I don’t know – yeah.
Q891. I put it to you that at that time when you were discussing all that that I’ve talked about you were talking about an attack with guns, killing as many people as possible. Am I wrong?
A Could – could be right, yeah. That’s right.
Q892. I could be right?
A Yeah.
99Samed Eriklioglu also admitted that he had looked at extremist material, but said that that did not mean he agreed with it. He admitted that he had spoken to John and agreed on a price of $1,800 and a deposit of $300 for the firearm.
100In the case of Ertunc Eriklioglu, items seized included a phone, two USB devices and one torn handwritten note titled “Plan” (containing references to knowledge, learning Arabic and saving money).
101When questioned by police, Ertunc Eriklioglu answered questions as to his personal circumstances and religion but otherwise generally exercised his right not to comment on the allegations. He did, however, make what the Crown would have contended at trial were false denials, in that he denied downloading or viewing jihadist material and discussing firearms or wanting to purchase firearms.
102A forensic analysis of the 11 electronic devices seized demonstrated that as a whole, the group possessed:
· 280 video files (244 of which were unique);
· 357 document files (236 of which were unique); and
· 298 audio files (149 of which were unique)
of a religious or ideological nature, which included material that was instructive in or supportive of jihad. It also revealed that some of the devices had been used to access jihadist material through social media and the internet.
Procedural history
103As I have indicated, the offenders were each arrested and charged on 20 November 2018. They have been in custody since that date. The matter proceeded to a contested committal over five days commencing on 11 November 2019. An initial directions hearing was conducted in this court on 29 November 2019. After a series of delays caused by the pandemic, the matter was listed for directions on 14 August 2020.
104Between 12–22 October 2020, pre-trial argument commenced in this court. Further pre-trial hearings were conducted on 29–30 October 2020, 17–18 November 2020, 7–8 December 2020, 27–29 January 2021, 1–3 February 2021 and 1–5 March 2021. Seven of those hearing days were concerned with determining issues of public interest immunity (“PII”). During the period October 2020–March 2021, there was substantial disclosure of further material.
105Following this further disclosure, on 24 March 2021, the offenders each indicated their intention to plead guilty to an amended charge, and on 26 March 2021, they were arraigned and pleaded guilty to that charge. The pleas in mitigation took place over four days between 15–18 June 2021.
106Made in the midst of the pandemic, the pleas of guilty are a significant matter to which I will return.
General sentencing principles
107Over the last 15 or so years there have been quite a number of superior court sentencing decisions dealing with conspiracy to commit acts in preparation for, or planning, a terrorist act, with the substantive offence, or with like offending, which state and apply the relevant sentencing principles.[45] With one exception (Galea[46]), those cases involve plans either in groups or as individuals to carry out attacks on non-Muslim (or on Shia Muslim[47]) Australians in furtherance of violent jihad. The number and frequency of this type of offending now merits its description as prevalent.[48]
[45] R v Lodhi (2006) 199 FLR 364 (“Lodhi (2006)”); Lodhi v R (2007) 179 A Crim R 470 (“Lodhi (2007)”); Benbrika v R (2010) 29 VR 593; R v Al-Kutobi [2016] NSWSC 1760; R v Khaja (No 5) [2018] NSWSC 238 (“Khaja (No 5)”); DPP (Cth) v MHK (a pseudonym) (No 1) (2017) 52 VR 272 (“MHK”); Elomar (2014) 300 FLR 323 (“Elomar”); DPP (Cth) v Besim [2017] VSCA 158 (“Besim”); DPP v Besim (No 3) (2017) 52 VR 303; DPP (Cth) v Ali [2020] VSCA 330 (“Ali”); Fattal v R [2013] VSCA 276 (“Fattal”); Abbas v R [2020] VSCA 80 (“Abbas”); DPP (Cth) v Galea [2020] VSC 750 (“Galea”).
[46]Galea.
[47] See Mohamed, Chaarani & Moukhaiber v The Queen [2019] VSC 498 (“Mohamed & Ors”).
[48] Khaja (No 5), [92], [127] per Fagan J; R v Bayda; R v Namoa (No 8) [2019] NSWSC 94 (“Bayda & Namoa (No 8)”), 108, also per Fagan J.
108At the outset, four basic points which are common to all of those authorities might be made.
109First, it is difficult to overstate the inherent seriousness of this kind of offending. As was said in the context of a Director’s appeal in MHK:
“Terrorist acts, of the kind planned and prepared by the respondent, are calculated to, and do, cause widespread carnage and suffering amongst civilian populations. Their objective is to strike at the heart of our liberal, democratic and tolerant society. Such actions, and the conduct indulged in by the respondent, are driven by a depraved and evil ideology and mentality, which are anathema to the fundamental values of our nation.”[49]
[49] MHK, [61] per Warren CJ, Weinberg and Kaye JJA.
110Second, the offence is punishable by a maximum penalty of life imprisonment. That is the most severe sentence contemplated by Australian law. Parliament has made it clear that this offending must be regarded with the utmost seriousness, and a sentencing court must respect the legislature’s clear intention.
111Third, whilst the offenders are not to be punished as if they had committed the contemplated terrorist act, s 101.6 of the Criminal Code (Cth) is directed to intercepting and preventing terrorist acts well before innocent people might be killed. As Whealy J said in Lodhi at first instance:
“The very purpose of the legislation is to interrupt the preparatory stages leading to the engagement in a terrorist act so as to frustrate its ultimate commission. An evaluation of the criminal culpability involved in any particular offence requires an analysis not only of the act itself, which may be relatively innocuous, but as well an examination of the nature of the terrorist act contemplated, particularly in the light of the intentions or state of mind of the person found to have committed the offence.”[50]
[50] Lodhi (2006), [51].
112Fourth, consistent with that purpose, general deterrence and protection of the community will invariably need to be given substantial weight, whilst personal factors and considerations such as prospects for rehabilitation will need to become subsidiary.[51]
[51] Whilst this point was accepted generally, there was a good deal of argument on the plea as to how much emphasis, in the particular circumstances of this case, could be afforded to rehabilitation as against the more retributive sentencing purposes. I deal with that issue below.
113The Crown particularly emphasised these four principles, but all counsel helpfully framed their submissions acknowledging their application to this sentencing exercise.
114In formulating sentence, s 16A of the Crimes Act (Cth) requires me to impose a sentence that “is of a severity appropriate in all the circumstances of the offence”.
115Section 16A(2) provides a non-exhaustive list of factors which I “must” take into account along with “any other matters” relevant to the proper exercise of the sentencing discretion. I will set out those factors and then deal in sequence with those that are particularly relevant to this case:
(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
(a) the nature and circumstances of the offence;
(b) other offences (if any) that are required or permitted to be taken into account;
(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;
(d) the personal circumstances of any victim of the offence;
(e) any injury, loss or damage resulting from the offence;
(ea) if an individual who is a victim of the offence has suffered harm as a result of the offence—any victim impact statement for the victim;
(f) the degree to which the person has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner;
(fa) the extent to which the person has failed to comply with:
(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or
(ii) any obligation under a law of the Commonwealth; or
(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;
about pre‑trial disclosure, or ongoing disclosure, in proceedings relating to the offence;
(g) if the person has pleaded guilty to the charge in respect of the offence:
(i) that fact; and
(ii) the timing of the plea; and
(iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence;
(h) the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences;
(j) the deterrent effect that any sentence or order under consideration may have on the person;
(ja) the deterrent effect that any sentence or order under consideration may have on other persons;
(k) the need to ensure that the person is adequately punished for the offence;
(m) the character, antecedents, age, means and physical or mental condition of the person;
(ma) if the person’s standing in the community was used by the person to aid in the commission of the offence—that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;
(n) the prospect of rehabilitation of the person;
(p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.
Section 16A(2)(a) – The nature and circumstances of the offence
116I have already set out in some detail the circumstances of the offence. What remains is to assess the nature or seriousness of this offence. An issue which arose on the plea relating to that assessment was the extent to which the undercover operatives contributed to the commission of the offence – described in shorthand as the “inducement”.
117I will deal with each of those issues in turn.
The seriousness of the offence
118In assessing the seriousness of this offence, counsel referred me to a number of comparative cases to provide some guidance.[52] One of those cases, the Court of Appeal decision in Ali, identified four criteria to be weighed in that assessment:
· the nature of the contemplated terrorist act;
· the nature and extent of the preparatory conduct;
· the degree to which the planning/preparation had advanced towards its objective; and
· whether the terrorist act was likely to have occurred had the offender not been arrested.[53]
[52] Ali, R v Kruezi (2020) 356 FLR 59; Abbas; Khalid v R (2020) 102 NSWLR 160; Baladjam v The Queen (2018) 341 FLR 162; MHK; Besim; Elomar; Fattal; Lohdi (2006); Khaja (No 5); Bayda & Namoa (No 8); Galea; Mohamed & Ors; R v Taleb (No 5) [2019] NSWSC 720 (“Taleb (No 5)”). I have borne in mind the limited use that might be made of comparators as establishing a range of sentences, “…not necessarily the correct range, which can be used as a yardstick against which a proposed sentence can be measured”. What is to be taken from comparative cases is consistency of principle, not “mathematical equivalence”: Khalid, [95] per Bathurst CJ.
[53] Ali, 27 [102] per Maxwell P, McLeish and Weinberg JJA.
119The Court in Ali also helpfully analysed the approach to be taken in assessing the seriousness of this offence to the following effect:
“These twin features can be viewed as two axes of seriousness for sentencing purposes. The first, focusing on the action in contemplation, includes both threats and other actions targeted at property, electronic systems, public health or safety and the physical well-being and lives of other persons. The second, concentrating on the acts actually done, encompasses a myriad of activities including conversations, research, acquisition of equipment, strategic planning, recruitment of fellow offenders and everything done in preparation or planning short of the terrorist act itself.
…
Other things being equal, the preparatory act is more serious if the planned terrorist act involves:
· the killing of persons, rather than the causing of property damage;
· deliberate killing, rather than the risk or possibility of people being killed; and
· the killing of many people, rather than only one or a few.
The preparatory act itself may be assessed by reference to factors including:
· the degree of planning, research, complexity and sophistication involved;
· the offender’s level of commitment to carry out the terrorist act;
· the period of time involved in planning or preparation;
· the depth and extent of radicalisation of the offender as demonstrated by the possession of extremist material and communication of such views to others;
· the extent to which the offender has indoctrinated or recruited others, or attempted to do so; and
· the nature and extent of the equipment or materials which the offender has assembled for use in the terrorist act.
· The offence is said to be ‘no less serious’ merely because of matters such as:
· the ineffective nature of the preparatory conduct;
· a ‘general lack of viability and sophistication’;
· a ‘degree of impracticability’; and
· ineptitude, clumsiness or ‘amateurish conduct’.”[54]
[54] Ali, [71], [75]–[77]; R v Kahar [2016] EWCA Crim 568, [19].
120All counsel framed their submissions so as to address those considerations.
Prosecution submissions as to seriousness of the offence
121The Crown submitted that the objective seriousness of the offending was “mid-range”.
122That was so, it was argued, because of the following factors:
· the proposed terrorist attack aimed to kill multiple people using a firearm;
· the attack would therefore have caused significant harm;
· the offenders harboured a longstanding commitment to jihad, whether defensive or offensive;
· the offending involved conspiracy and was therefore more likely to succeed;
· although the conspiracy spanned a relatively short timeframe (ten days), it was by no means a momentary lapse;
· the preparatory act had progressed to paying a deposit for a firearm and at that point in time there must have been a significant level of commitment; and
· whilst no other equipment or materials were gathered, that was because the proposed attack involved a firearm and no other materials or equipment were necessary.
123Mr Renton, who appeared with Ms Holmes on behalf of the Commonwealth Director, submitted that the twin axes discussed in Ali might be assessed in the following way. First, the contemplated terrorist act in this instance involved deliberately killing multiple innocent members of the public. That may, for example, be contrasted with cases where killing is a collateral consequence of the plan. An analysis of that first axis placed the seriousness of this offence in a very serious category.
124Second, an assessment of the dangerousness of the preparatory conduct, that is, how close these offenders came to actually carrying out the terrorist act, suggests that their planning was relatively nascent and that they had not advanced very much at all towards carrying out the contemplated terrorist act. It followed that the less serious nature of the second axis tempered somewhat the seriousness derived from the first axis.
125It was that logic, as I understood it, which underpinned the prosecution submission that this offending fell in the mid-range.
Defence submissions as to the seriousness of the offence
126Mr McMahon SC, who appeared with Mr Stanton on behalf of Hanifi Halis, made a number of submissions as to how I should characterise the objective seriousness of this offending, with which counsel for Samed Eriklioglu and Ertunc Eriklioglu joined.
127First, it was accepted that the contemplated terrorist act was unquestionably serious, involving as it did an attack on members of the public with a firearm. However, the offenders were not to be sentenced on the basis that the acts in preparation were for an attack on a “well-populated area of the city of Melbourne” as had originally been alleged.
128The terrorist act contemplated was said to be “relatively amorphous”. Even at the end of the conspiracy the plan was only at a nascent stage. There was no specific target or plan and there had been no acts of reconnaissance. The reason the offenders wanted to obtain the .22 rifle was to learn how to use the gun over a period of some months in preparation for potential engagement in a terrorist act. It followed that there was no immediate threat to the community.
129Those circumstances were contrasted with other cases involving more detailed and immediate plans for specific terrorist acts.[55]
[55] Ali; Besim; Galea.
130It was submitted that the degree of planning and sophistication involved in this conspiracy was at the lowest end. The level of commitment shown by the offenders to carry out the terrorist act was quite low, considering the expression of doubts in recorded discussions and the decision to seek the return of the deposit and not follow through with the purchase of the gun.
131The focus of the group had always been to travel overseas rather than commit a terrorist act in Australia. In addition, there was there no suggestion that the offenders had sworn a bayat or oath of allegiance to a terrorist organisation such as Al Qaeda or IS.
132It was submitted that the period of the conspiracy encompassed the comparatively short period of only ten days. Indeed, the key discussions regarding obtaining the .22 rifle occurred over four days, being 12, 15, 16 and 17 November 2018.
133It was also contended that there were two key aggravating features present in Ali which were not present here. First, in this case the overt act performed pursuant to the conspiracy was remote from the terrorist act contemplated. It could not be established to the requisite standard that the .22 rifle was to be used for anything more than training. The accused had limited knowledge of firearms. They wanted to train with the .22 rifle. The rifle would be shared between them and likely stored with CO 239.
134Second, it was significant that the conspiracy had ended before the arrest of the accused. It therefore could not be said in the circumstances of this case that but for the arrest, the offenders would have gone ahead and engaged in further acts of preparation for the planning of a terrorist act. That state of affairs was contrasted with the position in Ali, where the Court said:
“Another obvious ‘dangerousness’ factor is whether the offender’s intention to carry out the terrorist act subsisted at the date of arrest. Presumably, a preparatory step directed at a very serious terrorist act would still be regarded as very serious even if, by the time of the arrest, the offender had decided not to go ahead. But the preparatory offence should be viewed as much more serious — because much more dangerous — if the Court is satisfied that, as at the date of arrest, the offender still intended to go ahead and would have done so but for the intervention of the authorities.”[56]
[56] Ali, [83].
135It followed that this offending should be characterised “… as falling at the lower end of the range having regard to the nature and circumstances of the offence”.
The relevance of inducement
136Beyond those considerations, a matter which attracted a good deal of attention during the plea hearing was the effect of the inducement on the sentencing calculus.
137In this case an assessment of the seriousness of the offence would not be complete without considering the extent to which the police contributed to its commission.
138All defence counsel contended that were it not for the undercover police inducement, there was a real likelihood that the offenders would not have committed the offence. Counsel relied upon Harper JA’s reasoning in Haidari:[57]
“If there is a real likelihood that, in the absence of police inducement, the offender would not have committed the crime, leniency may well be indicated. In the words of Badgery-Parker J in R v Taouk:
... when it comes to sentence, the question is ... whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have [committed the crime], and whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as to diminish his culpability.”
[57] DPP (Cth) v Haidari (2013) 230 A Crim R 134 (“Haidari”), 142 [32].
139Leniency is not to be extended where the inducement merely detects and obtains evidence against an offender who is only too ready to commit the offence.[58] There is a distinction to be drawn between those who might well have been encouraged by police to do what they otherwise would not have done, and those who engaged in the criminal behaviour in question as part of their ongoing business.[59]
[58] Kada v The Queen (2017) 270 A Crim R 197 (“Kada”), [60].
[59] Haidari, [33].
140Counsel also referred to the considerations helpfully set out in the subsequent decision of Kada,[60] to which I will return.
[60] Kada, 214-5 [72].
141In its written outline of submissions on sentence, the prosecutor stated:
“Cases like DPP (Cth) v Haidari have noted that “if there was a real likelihood that, in the absence of police inducement, the offender would not have committed the crime, leniency may well be indicated.” The Crown accepts that [there] was a real likelihood of such in this case, in circumstances where undercover police provided the offenders with the opportunity to purchase the firearm and purported to facilitate such a purchase. However, the Crown does not accept that there was any impropriety on behalf of the police.”[61]
[61] Outline of prosecution submissions on sentence, 11 June 2021, [46].
The scope and effect of the inducement
142Whilst the fact of the inducement was conceded, there was considerable debate between the parties as to its scope and the effect it should have on sentence.
143Attempting to resolve that dispute has been difficult, as it was necessary to go behind the summary of prosecution opening for plea and review quite a number of the relevant recordings and transcripts in order to make findings as to what was said and done by the covert operatives, and assess how it impacted the offenders.
144I should make clear that it was not argued, and I was not asked to make a finding as to whether the inducement was illegal or improper. That said, for reasons I discuss below, I do find that CO 309 played a very valuable role in monitoring the offenders’ activities.
145In order to properly explain the position of the parties and the reasons for my conclusions, it is necessary to go into quite some detail.
Prosecution submissions on inducement
146Mr Renton submitted that the inducement arose after the Bourke St incident involving Shire Ali. The offenders’ reaction to that incident provided the catalyst for “the next step”. Until that point, he acknowledged that nothing had been done in the nature of preparing or planning for a terrorist attack.
147CO 309 raised the topic of the Shire Ali attack on the night of 9 November. After he had left Geach St, Ertunc Eriklioglu described Shire Ali as a shaheed and they all appeared to enthusiastically discuss what had happened. Ertunc Eriklioglu was recorded as telling the others that they should “do something”.
148It was submitted that the conversation of 12 November 2018 was the key to properly understanding the context of the inducement. During that conversation, Hanifi Halis had asked if CO 309 knew how to use guns. Ertunc Eriklioglu asked if CO 309 could give them some training. It was submitted that they happily embraced the idea that CO 309 might be able to acquire a gun. They enquired as to whether they could get proper guns, not air rifles.
149The police, it was argued, were being responsive to what was being asked by the offenders. They wanted CO 309 to deal with “John” on their behalf, even though he suggested that they could deal with him themselves.
150It was submitted that the police controlled the situation by confining the facilitation of the access to firearms to CO 239, but that the intention to access a firearm was driven by the offenders, not by the police. The purchase of the gun in those circumstances gave rise to the reasonable possibility, and therefore the concession, that but for the inducement the offence would not have occurred.
269Mr Kelly also relied on references from Shaykh Wissam Zaatiti, Savas Goker, Ersen Emresoy, Kaled Elorr and Samir Mohtadi to submit that aside from the commission of this offence, Ertunc Eriklioglu has contributed constructively to the community through work and in providing for his family. Like his brother, it was said that he presents as a quiet, humble person without any discernible tendency towards violence, who has otherwise been of good character.
Section 16A(2)(n) – The prospect of rehabilitation of the person;
270It was contended on behalf of each of the offenders that their prospects for rehabilitation were at least reasonable.
271In the case of Hanifi Halis, it was put that his prospects were strong. He relied on his relative youthfulness,[123] his lack of previous convictions, the fact that the offending had come to an end before his arrest, his evident immaturity before and at the time of the offending, what was said to be his contrition, the high level of family support, and his history in achieving academically, in sport and in music.
[123] As indicated, Hanifi Halis was 21 at the time of the offending and turned 24 on 3 September 2021.
272Whilst in custody, Hanifi Halis has also been “counselled” by Mr Adel Salman, a prominent member of the Islamic community and President of the Islamic Council of Victoria. Mr Salman had been asked by Hanifi Halis’s parents to visit him and provide some positive advice and guidance. He met with him on “at least 12 occasions”. Mr Salman provided a reference in which he asserts that he does not believe that Hanifi Halis holds “any extreme views”.
273In the case of Samed Eriklioglu, it was submitted that his prospects were reasonable by reference to his lack of previous convictions, his relative youthfulness, his previous good character, the fact that he had not pledged allegiance to a jihadist terrorist organisation, his cooperation with police in that he was prepared to engage in a responsive record of interview, the support of his family, his work history, and his plea of guilty.
274Ertunc Eriklioglu, as the older brother of Samed Eriklioglu, was in a similar position. He relied on his previous good character, his lack of prior convictions, a stable work history, the support of his family and his plea of guilty. Significantly, he married in 2014 and has two daughters, aged five and three, with whom he had been actively involved.
Prosecution submissions as to renunciation
275Mr Renton submitted that despite the lack of prior convictions and favourable matters personal to each, all offenders had a longstanding commitment to violent Islamic ideology. Renunciation of that ideology would bear directly on their prospects for rehabilitation.[124] In the absence of a finding that they had recanted their extremist views, it was submitted that it would be difficult to infer that their prospects for rehabilitation were any more than “slim”.
[124] R v Ghazzawy [2017] NSWSC 474 (“Ghazzawy”), [68].
276It was contended that the onus is on the offender to establish on the balance of probabilities that they have abandoned their beliefs. On the plea, they had not discharged that onus. None of the three offenders had given evidence which could test their assertion as to renunciation, and little weight could be placed on the hearsay statements they have made to third parties or their instructions put by counsel from the bar table.
277It was further submitted that, because these offenders have not established that they have resiled from their extremist views, the sentencing purpose of community protection assumes greater importance.
Defence submissions as to renunciation
278All defence counsel put their instructions that each of the offenders had renounced their extremist views and that I could impose sentence on that basis.
279In various ways, counsel sought to distinguish the level of commitment shown by these offenders from that typically shown by offenders in cases of this kind. Their submissions can be distilled to the following seven propositions.
280First, the group’s primary focus throughout the lengthy period leading up to the conspiracy was on travelling offshore to engage in the conflict in Syria, that is, to engage in “defensive jihad”.
281Second, whilst the group regularly engaged with extremist material, the majority of that material was not necessarily graphic or violent, and generally comprised the works of extremist “scholars”. That is to be distinguished from the many cases where offenders of this type immerse themselves in graphic material and become desensitised to human suffering and loss of life. As I followed the argument, these offenders were therefore more likely to be persuaded to mainstream views.
282Third, although there was evidence that the offenders had sought to indoctrinate three others, it was not alleged that they had tried to recruit others to participate in the conspiracy.
283Fourth, one indicia of the degree of commitment to violent jihad is the making of a pledge or oath to a terrorist group such as IS. These offenders had not made any such pledge.
284Fifth, in the lengthy period leading up to the conspiracy, the offenders’ commitment to violent jihad had, at times, waned.[125] Further, during the conspiracy itself, each of the offenders at different times expressed doubts and/or vacillated about whether to proceed with the purchase of the firearm.
[125] See for example the discussion concerning Hanifi Halis’s recorded conversation with CO 309 on 21 September 2018 at [184]–[188] of these reasons.
285Sixth, whilst it appears that the decision not to proceed with the purchase of the firearm was primarily motivated by a concern as to being caught, the fact that the offenders decided to end the conspiracy of their own volition says something about their steadfastness, or lack thereof. That can be contrasted with the intransigent and determined attitude evident in many other cases of this type, where offenders would have proceeded with the proposed terrorist act but for the intervention of the police.[126]
[126] See for example: Ali; Besim; MHK.
286Seventh, the plea of guilty can be taken as a movement away from the views held at the time of the commission of the offence.
287It followed, as I understood the argument, that these offenders were not the hardened fanatics who typically commit this kind of offence.
288In response, the Crown submitted that an initial preference to participate in jihad overseas does not reduce the seriousness of the offending which involved a clear intention to train for a terrorist act to be committed domestically. An adherence to violent jihad is still an adherence – whether it is sourced from academic works or graphic media is of little moment.
289Further, it was submitted that the lack of allegiance to a recognised terrorist organisation like Al Qaeda or IS was not a matter of mitigation. What is important is that at the time of the conspiracy, the offenders adhered strongly to a belief in the righteousness of offensive jihad.
290The prosecutor also submitted that it would not be correct to conclude that a plea of guilty in circumstances of this kind constitutes a movement away from extremist views. It is possible that it may be an indicator of some movement away; however, that indication must be approached with a good deal of caution.[127]
[127] Ghazzawy, [73] per Bellew J.
291Mr Renton relied on the principle that in sentencing for the most serious terrorist offences, the court will be concerned to “punish, deter and incapacitate: rehabilitation is likely to play a minor (if any) part”.[128] Because the offenders had failed to establish that they had resiled from their extremist views, it was submitted that there needed to be greater emphasis on protection of the community.[129]
[128] Lodhi (2007), [88], citing R v Martin (1999) 1 Cr App R (S) 477, 480.
[129] Ibid [88]–[110] per Spigelman CJ.
Findings as to renunciation and prospects for rehabilitation
292In considering these submissions it seems to me that two questions arise:
(i)What are the offenders’ prospects for rehabilitation?
(ii)What weight should be given to those prospects in the particular circumstances of this case?
293As to the first question, it must be emphasised that the terrorist act prepared for, or planned, to which the offenders have pleaded guilty was an action or threat of action involving an attack on members of the public with a firearm carried out with the intention of advancing Islam through violence. The distorted thinking and belief system that rationalised that contemplated terrorist act is anathema to our community’s way of life.
294I do not think it is at all unreasonable to expect of those who have held such views, and now claim no longer to adhere to that ideology, to discharge a persuasive burden. If they do discharge that burden, then appropriate allowance must be made for that fact when fixing sentence.[130]
[130] R v Touma [2008] NSWSC 1475, [145].
295During the plea hearing, I expressed the preliminary view that it would be difficult to be affirmatively satisfied that any of the offenders had recanted from violent jihad in the absence of evidence from them which could be tested through cross-examination. Having now carefully listened to all counsel, I remain of that view.
296I can, and do, attach some weight to what amounts to a public declaration of their rejection of that hateful ideology. But such weight as I can attach to those assertions must be limited because they remain untested. It follows, as Mr Renton emphasised, that protection of the community must remain prominent as a sentencing purpose.
297That said, there is some scope for cautious optimism as to the offenders’ prospects. They will, as I understand, be offered the chance to undertake a deradicalization program in custody once sentenced. The sorts of factors relied on by counsel, such as the plea of guilty, the public statements disavowing violence to the court, family and friends, the doubts expressed during the currency of the conspiracy, the lack of commitment demonstrated by voluntarily aborting the conspiracy before police intervention, the lack of pledged allegiance to a known terrorist organisation like IS, which is a common feature in the other cases, and the high level of family support, do suggest that these offenders are likely to be receptive to changing their beliefs.
298Whether they have changed, or will change, their ways remains to be seen. Nevertheless, the present indications lead me to conclude that their prospects are more accurately characterised as “reasonable” rather than “slim”, albeit that the absence of evidence tested on oath as to renunciation, constitutes a qualification to that finding.
299As to the second question, it is clear that considerations personal to the offenders such as youthfulness[131] and sentencing purposes such as rehabilitation necessarily become subsidiary in terrorist cases. Price J in Lodhi expressed that principle so:
“Rehabilitation and personal circumstances should often be given very little weight in the case of an offender who is charged with a terrorism offence. A terrorism offence is an outrageous offence and greater weight is to be given to the protection of society, personal and general deterrence and retribution.”[132]
[131] I note that the offenders in quite a number of the comparative cases were very young: in Besim, 18, in MHK, 17, in Khaja, 18 and in Kruezi, 18.
[132] Lodhi (2007), [274], cited with approval in Besim, [114].
300The extent to which those considerations will attract less weight, however, will depend on an assessment of the seriousness of the instant offence:
“The greater the objective gravity of an offence, the less likely it is that factors such as general deterrence, denunciation, and retribution will cede to the interests of rehabilitation.”[133]
[133] Besim, [116].
301In my view, the circumstances of this case are such that there is still some scope for sentencing considerations personal to the offenders and their prospects for rehabilitation to play some constructive part in the sentencing synthesis. As I have concluded, this is unquestionably a serious offence, but not by any means the most serious example of this type of offending. That finding leaves room for the offenders’ reasonable prospects for rehabilitation to be afforded some moderate weight.
Section 16A(2)(p) – The probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.
302It was not contended by any of the offenders that s 16 A(2)(p) had been engaged or that there were exceptional circumstances establishing hardship to family or dependants.
303I note that Ertunc Eriklioglu will continue to serve his imprisonment knowing that his wife is left to raise their two daughters on her own. The distress that is said to cause him is a relevant sentencing consideration which will be taken into account. The effect on his family, however, cannot be taken into account.
Other relevant matters
Comparative cases
304Many of the authorities concerned with the sentencing of terrorist offenders survey comparative cases in some detail. I have found those surveys helpful, but I do not believe there is anything to be gained by trying to add to that sum of knowledge.
305All counsel properly recognised that numerical equivalence was not the point of comparison with other cases – rather, what was to be gleaned was sentencing principle. There were, however, two authorities which attracted some discussion on the plea. The first was the decision in Ali, which I have relied on extensively as to principles to be applied in analysing the seriousness of this offending. The second was the decision in Besim.
306The latter case involved the following:
“What was planned was, in effect, a most brutal and outrageous crime. The respondent would drive his car into a police officer, selected at random, during the course of Anzac Day 2015 commemorations. Having killed or seriously injured the victim, the respondent would then proceed at once publicly to behead him. He would thereafter seize the officer’s gun and, until he himself was either killed or seriously injured, kill as many others as he could in the immediate vicinity.”[134]
[134] Besim, [5] per Warren CJ, Weinberg and Kaye JJA.
307Mr Renton submitted that the objective criminality of these offenders was less than Ali and “…comparable to, but ultimately less than, that in the case of… Besim”.[135]
[135] Outline of prosecution submissions on sentence, [90].
308There were similarities between this case and Besim, in that Besim held similar views, had wanted to go overseas and fight but could not, was motivated by the terrorist act of another, was youthful, and had planned to kill multiple people. Mr Renton also acknowledged that there were differences in that there had been a pledge of allegiance to a terrorist organisation, the planning was more developed, and there was no question of inducement.
309The sentence imposed in Besim on a Director’s appeal was 14 years imprisonment with a non-parole period of 10 years and 6 months.
310On behalf of the offenders it was put that Besim involved a far more specific plan, developed over months, which was calculated to be as shocking as possible. The terrorist act would have proceeded but for the intervention of police and the offender’s moral culpability was of a much higher order. It was submitted that the offending in the present case was “significantly lower”.
311It seems to me that the level of specific planning, the commitment of the offender and his high moral culpability, despite his youth, locates Besim as a more serious example of this type of offending. The inducement in this case is an additional distinguishing feature.
The roles played by each offender
312The Crown did not contend that there was any hierarchy amongst the three offenders, nor did counsel on behalf of each of the offenders suggest that any one of their clients had played a more or less important role. Accordingly, I will sentence on the basis that that each of the offenders are equally liable and equally culpable for the acts that constitute the offending.
313There are, of course, differences in their personal circumstances. Those matters can be important to weigh in the balancing exercise, but ultimately I have concluded that none of those differences justify the imposition of disparate sentences.
314Each of the offenders will receive the same sentence.
Conclusion
315Although a fair proportion of these reasons has been devoted to assessing the impact of the inducement, I have been conscious not to lose sight of what is at the core of this offending. These men embraced an opportunity to acquire a firearm in order to learn how to use that firearm in preparation for, or planning, a terrorist act. That terrorist act was an action or threat of action involving an attack on members of the public with a firearm, with the intention of advancing what has been rightly called a ‘depraved and evil ideology’[136].
[136] MHK, [61] per Warren CJ, Weinberg and Kaye JJA.
316That sort of conduct is calculated to sow fear and terror in our community, and any sentence imposed in response to such conduct must seek to protect the public and deter others from resorting to similar action or threats of action.
317As I have endeavoured to show in these reasons, however, there are some unusual features of this particular offending which qualify its objective gravity:
(i)The agreement to engage in the preparatory conduct was unlikely to have been made but for the contribution and encouragement of the undercover police.
(ii)The conduct performed pursuant to the agreement was controlled by the undercover operatives, and was limited to paying a deposit to CO 239 to acquire a firearm, with the idea that the undercover operatives would teach the offenders how to use the firearm in the coming months.
(iii)The agreement was short-lived and abandoned within days, before police intervention.
(iv)The agreement did not advance very far at all towards the contemplated terrorist act.
318Those considerations lead me to conclude that, whilst this remains unquestionably serious offending, it is by no means the most serious example of this type of offence.
319The evidence shows that the offenders retained a longstanding adherence to the ideology of violent jihad. They assert now that they have renounced that ideology. Whilst I can give some weight to that assertion, the fact is that it remains untested and open to question.
320Subject to that qualification, I assess their prospects for rehabilitation as reasonable. Those prospects have some role to play in the formulation of sentence, albeit that that role must be limited by the need to emphasise protection of the community and general deterrence.
321Finally, the pleas of guilty in this case will very substantially reduce the sentence imposed. That is so for the reasons already given, save that I reiterate that the reduction in sentence will be all the greater because it is made in the midst of the pandemic.
Sentence
322Taking all relevant matters into consideration, you will be sentenced as follows.
323On the charge of conspiracy to do acts in preparation for, or planning, a terrorist act, you will each be sentenced to 10 years imprisonment. I will direct that sentence to commence today, 7 September 2021.
324Pursuant to s 19AG(2) of the Crimes Act 1914 (Cth) I must fix a non-parole period which is at least ¾ of the sentence imposed for a terrorism offence. I will therefore fix a non-parole period of 7 years and 6 months.
325I will declare that you have already served 1,022 days’ imprisonment by way of pre-sentence detention, and I will cause that declaration to be noted in the records of the court.
326I further declare pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that but for your pleas of guilty you would have been sentenced to 15 years imprisonment with a non-parole period of 11 years and 3 months.
327Section 16F of the Crimes Act 1914 (Cth) requires me to explain to each of you, in language you will understand, the purpose and consequences of fixing a non-parole period in your case. You will be imprisoned for a period not less than the non-parole period of 7 years and 6 months. After that time, if you are considered suitable for release on parole, you will serve the balance of your sentence in the community. During that period on parole, if it occurs, you will be subject to conditions and supervision. If, without reasonable excuse, you fail to comply with your parole conditions or the lawful requirements of your supervisor, your parole will be cancelled and you will be taken back into custody to serve the balance of your sentence.
328Pursuant to s 105A.23 of the Criminal Code (Cth), I am also obliged to inform you that an application may be made under Division 105A of the Code for a continuing detention order requiring you to be detained in a prison after the end of your sentence for this offence.
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