The Queen v Temssah

[2021] VCC 1353

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01726

THE QUEEN

v

KHALED TEMSSAH

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JUDGE:	His Honour Judge Hannebery
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2021, 30 August 2021
DATE OF SENTENCE:	15 September 2021
CASE MAY BE CITED AS:	The Queen v Temssah
MEDIUM NEUTRAL CITATION:	[2021] VCC 1353

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Engaging in conduct in preparation for an incursion into a foreign country for the purpose of engaging in hostile activity - terrorism related offence - serious offence - online covert operative - renouncement of beliefs - reasonable prospects of rehabilitation - plea of guilty - COVID-19 - general deterrence.

Legislation Cited:      Criminal Code 1995 (Cth); Crimes Act 1914 (Cth).

Cases Cited:R v Taleb (No 5) [2019] NSWSC 720; The Queen v Cerantonio & Ors [2019] VSC 284.

Sentence:                  4 years and 9 months imprisonment – non-parole period of 3 years and 9 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr B Ihle SC with Ms S Lenthall	Solicitor for the Commonwealth Director of Public Prosecutions
For the Accused	Mr R Nathwani with Ms S Condon	Stary Norton Halphen

HIS HONOUR:

Introduction

1Khaled Temssah, you have pleaded guilty to one charge of engaging in conduct in preparation for an incursion into a foreign country for the purpose of engaging in hostile activity contrary to s 119.4(1) of the Criminal Code1995 (Cth) (‘the Code’). The maximum penalty for this offence is life in prison.

2Pursuant to s 3 and s 19AG of the Crimes Act 1914 (Cth), this offence is classified as a ‘terrorism offence’, for which a mandatory non-parole period of at least three quarters of the head sentence must be imposed.

Summary of Offending

3The prosecution tendered a Summary of Prosecution Opening upon Plea,[1] Appendix A: Complete Wickr conversation,[2] Appendix B: selection of images located on your phone,[3] Google searches,[4] and an excerpt of the Hijrah ISIS Handbook.[5] I do not intend to repeat the Summary of Prosecution Opening in full in these remarks but in summary your offending is as follows.

[1]Prosecution Exhibit 1.

[2]Prosecution Exhibit 2.

[3]Prosecution Exhibit 3.

[4]Prosecution Exhibits 4 and 5.

[5]Prosecution Exhibit 6.

4You are an Australian citizen and were 30 years old at the time of the offending.  Between 3 June 2019 and 20 June 2019 you prepared to travel to what Islamic State media declared in 2019 to be ‘Wilayah Al-Hind’ (the Islamic State Province in India).

5In May 2019, the Joint Counter Terrorism Team commenced an investigation into you, as you were suspected of making plans to travel abroad to engage in hostile activities.

6In June 2019, a Major Controlled Operation was established. It authorised police to deploy an Online Covert Operative (‘OCO’) to engage with you. You and the OCO communicated via the messaging application ‘Wickr’. Your communications occurred partly in English and partly in Arabic.

7The entirety of those online conversations was appended to Prosecution Exhibit 1. Salient portions of those conversation are set out as follows.

8On 3 June 2019 at 7:56pm, the OCO initiated contact with you via Wickr:

OCO: Peace be upon you and Allah’s mercy and blessings.

9The following day you responded at 12:22am:

Temssah: Peace be upon you too, my dear brother by Allah. I love you for the sake of Allah the exalted and almighty.

10The conversation immediately turned to your desire to ‘make hijrah’ to India. Between 3:22pm and 7:22pm on 4 June 2019, the following exchange occurred:

Temssah: Thanks to Allah my brother Allah willing you going to help me make hijra to India for the conquest of India with the permission of Allah how much do I need to make hijra from Australia brother.

OCO: May Allah reward you good. There are many areas given pledge of allegiance brother. Did you mean Province of India?

Temssah: Yess brother whatever is easier for me to get from Australia.

OCO: Exalted is Allah I help the mujahedeen in Province of Khorasan and Province of India brother. I can help you get to these areas but depends what you want to do.

Temssah: I would love to go to Province of Khorasan brother.

OCO: Thanks to Allah my brother. I will help you and you will be with the brothers soon Allah willing.

Temssah: How much do I need brother may Allah the exalted and almighty reward you.

OCO: It depends brother on what you want to do and what you can do for the brothers in Khorasan.

Temssah: Sorry brother India.  Not khurusan Province of India.  How much do I need to make hijra?

OCO: ok brother.

Temssah: I go to brother helping me financially.

OCO: You will need to pay for flights brother and then there are many things to pay for when you get there depends what you want to do here brother and what skills are. There are different costs.  Exalted is Allah brother. I will tell the brothers here to make supplication for you and your brother.

Temssah: Amen O Lord so it will be me travelling on my own Allah willing I want to be on the front line brother with the mujahideeen I want to give my life to Allah so how much for flights and what the next step I take brother?

OCO: May Allah reward you good brother I love you for the sake of Allah. 

I will speak to the brothers tonight about getting you here Allah willing, when do you plan to make hijra?

Temssah: Depending on how much I need I ahluld [scil. should] have 5 thousand Allah willing in 2 weeks brother by Allah I love u for the sake of Allah brother Allah willing sbwbtbreward [scil. swt reward] you O Lord

May the exalted and almighty reward you for helping me brother

Allah willing I wantnto [sic] be from th3 mujahideen on the froblnt lines and fight the idol worshipper tyrant till I reach martyrdom O Lord that is my intention with the permission of Allah.

OCO: May Allah reward you good brother.  Brother what should I tell the other brothers about you?  They will be so happy to hear of your plan to make hijra.

11You then sent an audio file to the OCO (at 7:22pm) in which you again reiterated your desire to join the brothers on the frontline:

Peace be upon you, brother. I thought I’d send you a voice message, it’s probably a bit easier. My dear brother, by Allah, if you can just tell them my intention that I want to make Migration in the cause of Allah, Allah willing, and I want to join them on the front ranks…and join the Mujahiden and…Allah wiling, may Allah the glorious and the almighty keep us all steadfast to bring and terrorise the idol worshiper tyrant, and avenge our brothers and sisters, Allah willing, O Lord, and protect them and…May Allah the glorious and the almighty grant us all martyrdom, O Lord. Yeah brother. I want to make Hijra soon…

12The following day, on 5 June 2019, you and the OCO continued this conversation on Wickr. You confirmed that you had a passport and would be ready to leave in two weeks. You told the OCO that you intended to ‘make hijrah’ on 28 June and asked if five thousand (dollars) was enough to cover costs, including flights. You also asked the OCO what you should pack.

13On 6 June 2019, you again communicated with the OCO on Wickr. You told the OCO what you intended to pack and asked when you should book your flights. You also stated that you would book a hotel to give the appearance that your travel was tourism related.

Temssah: ...i plan on leaving at night brother so it looks like in going for tourism so I can book flight there and.back with cheap hotel so the Idol worshipper tyrant do3snt think im going for jihad

OCO: brother you need to buy the flights soon it will seem strange if you buy them too close to the 28th. yes brother book them return to look like a tourist. you should fly to new dehli brother and I can make arrangements from there

Temssah: And peace be upon you brother il book a cheap hotel there aswell so it can look real Allah the exalted and almighty willing reqard you ill book in next to days Allah willing may allah reward u so much brother for helping me what else do i need to do

14This conversation then turned to what training you would need and your experience with weapons:

OCO: there are brother doing different work in the province and i need to know what training you need. what experience do you have brother? what have you trained in

Temssah: I know a little bit of martial arts brother i have also used a rifle for hunting brother im good with my Arabic thanks to Allah allah the exalted and almighty has blessed me with a good tongue for speaking to people i am th3 vice leader of a charitu [scil. charity] group and I am the treasurer so i collect the money and do videos to encourage others to helo [scil. help] the ummah in need hete [scil here] in Australia and overseas thanks to Allah I have good leadership skills

But i definitely want to be on the front lin3 woth the mujahideeen that is ny dream that is why im making hijra Allah willing.

If i don’t reply back too quick brother its cause my wife is next to me and she doesn’t know about this

...

OCO: How much hunting have you done brother. we have brothers here who hunted before making hijra but hunting is different to battle brother.

what kind of rifle have you used brother. i can organised to get you what you need for the frontline

Temssah: May allah the exalted and almighty reward u a dniper [scil. sniper] rifle used for hunting deer my brother ive done wlot of hunting

Im happy to be trained brother in very sincere

Thanks to Allah i tun a team of about 39 brothers thanks to Allah im well spoken this is a blessing from allah the exalted and almighty i hav3 memorised some quran and hadith21 in also the leader for the fatwa e do so i have some skills by the faviur of allah the exalted and almighty.

The rifle im used to using isna 3006 barrel 185 bullets

Im happy to learn to use anything else im a very wuick learner thanks to Allah

15You began to discuss your family with the OCO and wrote:

‘Thanks to Allah im weak in other aspects brother but I try ny best i love allah abd I wantnto to to Paradise and yhe beat thing i can do for ny family is to die a Martyr saybe i can save yhem from hellfire even though once they know when im in labd If jihad [scil. land of jihad] Allah willing im a terrorist nlbut I trust allah the exalted and almighty.’

16During the same conversation, you told the OCO:

Temssah: And in sick of seeing my brothers and sisters bient tortured asp3cially in Kashmir no one talks about Kashmir or china that’s why i want to go defend there honour I swear by Allah it woule be my hobour brother Allah willing i get to meed u soon brother i love u for th3 sake of allah the glorious and almighty I swear by Allah i do

...

OCO: May Allah reward you good for your concern for the ummah in kashmir brother. theres a lot that happens here that does not make it out. many of the brothers have made pledge of allegiance [Bay’ah] to the caliph because of whats happening

...

Temssah: May allah the exalted and almighty to protect them O Lord Allah willing I cant wait to come join the caliphate

I have already given my pledge of allegiance [Bay’ah] in my heart to the leader of the believers

17On 7 June 2019 you called two travel agencies to enquire into booking a return flight to New Delhi leaving on 28 June 2019. You provided your personal details so that the reservation could be held.

18You attended an agency later that afternoon and paid $1,680 in cash to book a ticket in your own name on an international flight from Melbourne to New Delhi on 28 June 2019; with a return flight booked for 10 July 2019.

19You told the OCO that you had booked a flight for 28 June 2019. You also sent two images of your printed flight itinerary to the OCO via Wickr. You asked the OCO:

‘Brother do u want me to book a cheap hotel for the time there so the idol worshipper tyrant don’t ask me why haven’t u books accommodation and where do I book accommodation and.when i Allah willing get to the airport what do i do next’.

20The OCO responded that he would make plans for your arrival and get back to you.

21You and the OCO also continued this online conversation over the following days. In summary, it was discussed:

(a)   what hotel you should book to give the appearance of being a tourist;

(b)   you purchasing items to bring with you, such as running shoes;

(c)   arrangements for you to be picked up from the airport on arrival; and

(d)   how much money you would need to take with you.

22You asked an associate to take you to the airport on 28 June for a holiday to India to go camping. You spoke to another associate about buying a new pair of runners.

23Between 10 June 2019 and 12 June 2019, you and the OCO discussed what weapon you should use when you reached the Caliphate:

Temssah: No problem brother im happy to use anything even assault rifle no problem Allah willing will I get picked up from the airport or do I wait till they contact me

OCO: Thanks to Allah brother, i will give you a number to call when you get here and a brother will pick you up

Temssah: Allah is Greater what else y need me.to do or u want to ask me anything else does anything beeded to be added to my hijra list that I sebt u

OCO: the brothers send their greetings brother

The brothers said there are some more itms that can be useful here brother. good boots, a waterproof jacket, head torch. there is more to organise here for you too brother

Temssah: Allah willing i will come with a good jacket boots head torch i think better if i buy there brother if i travel with that from here they’ll no straight away

Is 2 thousand enough brother Australian

To bring in cash i don’t want the idol worshipper tyrant to get suspicous

OCO: More money would help brother but Allah willing 2 thousand will be enough

there are people to pay here to get you into the province of India brother and you will need money for other things for the frontline

Temssah: By Allah brother im happy to use whatever to start off with maybe ak47 brother

Whaytever is available brother what ammoubt u think is good to bring without raisibg to much suspicion c what the brothers think

OCO: Exalted is Allah brother. if you send $600 for housing and transport to get to al-hind and the rest you can bring with you as US dollars like a tourist brother, you can use it here

And $400 if you want ak47 and ammo brother

Temssah: So 600 for housing and transport and 400 for ak us or aussie brother

OCO: US brother

Temssah: So all together 2000 us brother is enough

OCO: yes brother it is enough for now but bring as much as you can with you for other things you might need later

Temssah: Ill try to bring as much as I can brother may allah bless u abd reward u abu jawad may allah the exalted and almighty give u martyrdom O Lord brother is thete any other questions u wana ask me

OCO: When can you send the money brother. i will pay some people in advance to get you in to India and for the ak47

24On 13 June 2019, you and the OCO arranged to send $880 to the OCO for the purchase of an AK-47 and to cover the cost of entering Kashmir.

25The following day, on 14 June 2019, you attended Metro Travel and paid $620 in cash to book a hotel in New Delhi, under your own name, for the duration of your purported stay (ten days). A booking receipt was generated. You later sent images of the booking details to the OCO via Wickr.

26On 15 June 2019, you and the OCO continued the discussion about you sending money to cover the cost of your entry into Kashmir and an AK-47. You were instructed to contact another person (the ‘hawala’), whose name was ‘Ahmed’. Ahmed’s phone number was provided as well as a ‘token’. The hawala ‘Ahmed’ was in fact also an Undercover Police Operative (‘UCO’), authorised to engage with you pursuant to a variation of the Major Controlled Operation.

27On 17 June 2019, you called the UCO and provided the token. You made arrangements to meet in person and exchanged a number of SMS messages confirming the time and place. These calls and messages were captured on the telephone intercept. You also provided updates to the OCO via Wickr about his plans to meet with ‘Ahmed’.

28Later that evening, you met with the UCO, ‘Ahmed’, in a Caltex Service Station in Campbellfield. You provided the token and gave the UCO $880 in cash. This conversation was covertly recorded. The UCO gave you a five dollar note, bearing a serial number which was the token, as a receipt for your purchase. You later confirmed with the OCO via Wickr that the transaction had taken place.

29On 19 June 2019, you asked the OCO via Wickr if there was anything else you needed to do. You also asked the OCO:

‘If the idol worshipper stop me abd imprison me will i still get thenreward of hijra andmjihad in the cause of Allah i know that they can only stop me if allah the exalted and almighty allows.it and Allah willing allah the glorious and almighty.jail doesn’t let that happen.’

30The OCO told you he was working on plans for your arrival and training. He then confirmed that he had received the money from you.

31The following day, 20 June 2019, was the last day on which the OCO communicated with you. You discussed how much money you could bring with you to India.

32At various points during the Wickr conversations, you reiterated your enthusiasm about your plans to the OCO.

33The  preparatory conduct engaged in by you included:

(a)   speaking to an Online Covert Operative to make arrangements to travel to Kashmir, including seeking and receiving advice about various matters;

(b)   researching and booking a flight to New Delhi;

(c)   researching and booking a hotel in New Delhi (under the guise of a legitimate visit); and

(d)   meeting with an Undercover Operative and exchanging AUD$880 cash, believing that this money would be used to both fund your travel to Kashmir and for the purchase of an AK-47.

34As you variously stated, you wanted to be with the ‘brothers on the front line’, to fight the non-believers and maybe even to die as a martyr. These intentions satisfy the following limbs of the definition of ‘engage in hostile activity’ under s 117.1(1) of the Code, which you held throughout the charge period at different points in time:

(a)   to cause serious harm that is physical harm to a person (ss117.1(1)(b) and 100.1(2)(a));

(b)   to cause serious damage to property (ss117.1(1)(b) and 100.1(2)(b));

(c)   to cause a person’s death (ss117.1(1)(b) and 100.1(2)(c));

(d)   to endanger the life of another person (ss117.1(1)(b) and 100.1(2)(d));

(e)   to create a serious risk to the health or safety of the public or a section of the public (ss117.1(1)(b) and 100.1(2)(e));

(f)    to intimidate the public or a section of the public of that or any other foreign country (s117.1(1)(c));

(g)   to unlawfully destroy or damage any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country) (s117.1(1)(e)).

35On 20 June 2019 at 8.30am, you were arrested by police as you arrived at work at Mantello Holden in Coolaroo.

36You participated in a recorded police interview. You told police:

(a)   You are of Lebanese heritage, but were born in Melbourne;

(b)   You were the sole user of mobile phone, though your wife and children sometimes accessed it;

(c)   You previously took part in religious pilgrimages (Umrah and Hajj) between 2017 and 2018;

(d)   You are a follower of mainstream Sunni Islam, and in particular follows the interpretation of the ‘Sharif’ or ‘Salaf’ – the ‘righteous predecessors’;

(e)   You are a co-director of the charity ‘Families in Need Australia’;

(f)    You have never accessed or used a firearm.

37You otherwise exercised your right to answer ‘no comment’ in relation to questions about the mobile phones, your use of Wickr, the Wickr conversations with the OCO, and the contact made with travel agencies.

38You were charged and remanded in custody to appear at a filing hearing later that day.

39On 21 June 2019, the day following your arrest, it was discovered that you had radicalised Islamic material in the internet search history of your desktop computer.

40Your two mobile phones and two work computers were analysed by digital forensic examiners. The Samsung Galaxy S8 contained numerous images, including screenshots and photographs of your Asus desktop computer screen depicting details of various hotels in India. The phone was also used to call Metro Travel on 7 June 2019 and ‘Ahmed’ (the UCO) on 17 June 2019.

41The Samsung Galaxy S4 was used to contact both the OCO on Wickr, and the UCO prior to the in-person meeting. This phone also contained more than 100 image files, video files and documents concerning extremist Islamic ideology and IS propaganda.

42A selection of those images were appended to Prosecution Exhibit 1. Amongst the array of materials of this nature that you had searched, on 29 April 2019, you accessed the document titled ‘Hijrah to the Islamic State’, which is a 50-page eBook published by the Islamic State in February 2015.[6] The document contains stories of jihad and martyrdom and includes detailed instructions for Muslims around the world on how to travel to the Caliphate in Syria to join ISIS, such as what a traveller should bring, travel routes they should use, where to go, who to contact and ways to avoid law enforcement detection at borders.

[6]Prosecution Exhibit 6.

Nature and Circumstances of the Offence

43Pursuant to Australia’s international obligations, the Commonwealth Parliament has criminalised behaviour of the type engaged in here to protect the people and institutions of other countries from citizens of this country who might be minded to head overseas and engage in hostile conduct. The seriousness with which Parliament views these offences is reflected by its maximum penalty of life imprisonment.

44The revised explanatory memorandum to the bill that introduced the new foreign incursion provisions into the Code and designated them to have a maximum penalty of life imprisonment that aligned them with other terrorist act and preparatory terrorism offences within the Code rationalised the reasons for that change as follows:

The increased penalties for foreign incursions and recruitment offences are proportionate and reflect the gravity of these offences. Australians engaged in foreign conflicts act to destabilise foreign governments and may be involved in the perpetration of violence, which at its most serious could involve unlawful death or an intention to cause unlawful death. Moreover, those returning from foreign conflicts to Australia may have enhanced capabilities which may be employed to facilitate terrorist or other acts in Australia. To this extent, the penalty provisions reflect the seriousness of the offences and the threat posed to the national security of Australia and people in Australia.[7]

[7]Revised Explanatory Memorandum to the Counter-Terrorism Legislation Amendment (Foreign

Fighters) Bill 2014 (Cth) at [226].

45In your case, Mr Temssah, the following matters are relevant in determining the gravity of the offence before the court.

46The conduct the subject of the charge was committed between 3 June 2019 and 20 June 2019. That is, the criminality to be punished was for the relatively modest period of 17 days.

47During that time, you engaged in multiple separate preparatory acts. These acts were unsophisticated, but they were purposeful. Your conduct persisted even though you had ample opportunity to desist.

48There was a degree of planning evident in the acts you undertook. You booked a hotel in a manner intended by you to make your departure seem an innocent act of tourism. You attended a travel agency and paid for a booking in cash. You arranged for a friend to transport you to the airport and thought to give that friend a false explanation to hide your true intentions.  You arranged to pay for what you believed to be the supply of an AK-47.

49The acts you engaged in were all functional in nature and not in and of themselves violent or threatening. However, in relation to the charges before the court, it is the intention behind inherently unremarkable acts that I must assess. Measured by that criteria, there is no doubt about the gravity of your intention.

50The actions you took over those 17 days represented a persistent commitment to get to Kashmir and fight on the front line with the Mujahadeen. It is evident from the sentiments you consistently expressed to the OCO that it was your sincere wish to engage in hostile activity of the nature outlined in the Code, and to die as a martyr if necessary.

51That you took steps to pay to ensure that you were armed with an AK-47 upon arrival in the Kashmir leaves no scope for doubt about the nature and gravity of your intentions. Based on all the available material, I reject your initial contention made in evidence that you simply wished to act as a guard, or that your motivations were purely humanitarian in nature. I note that your counsel did not seek to pursue that submission and that you ultimately did give evidence consistent with the allegations at the core of the charge.

52Your intentions were motivated by an interest in and an adherence to an extremist religious ideology. You had accessed and stored a substantial amount of graphic and disturbing material, including material specifically referring to Islamic State. Whilst it is not suggested that you were a member of Islamic State, you did tell the online covert operative that you had already given a pledge of allegiance in your heart, and that if you had to kill some people, that this would be justified according to the Islamic State doctrine.

53Your intentions and your preparatory actions to fulfil those intentions reveal that your commitment to these extremist beliefs was at the time, absolute. You were prepared to kill and to give your own life in adherence to an extremist philosophy. Your actions were not those of someone with just an interest in or a loose commitment to radical beliefs. You were prepared to deceive and then to leave your family to give your life for those beliefs.

54The entirety of your conduct was engaged in whilst in direct contact with an undercover operative purporting to be an Islamic State sympathiser. At no stage in this matter was there any actual prospect that you could achieve your desired aims. That is to be regarded as the absence of a matter that would otherwise have been aggravating.

55The fact you were engaging with an online covert operative has undoubtedly influenced the specific nature of the preparatory acts you engaged in. It is reasonable to conclude that the suggestions by the online covert operative has directed your conduct to the extent that the prospect of booking flights was first raised by him, not you. In a more general sense, had you not encountered the online covert operative and engaged with him over those 17 days it is unclear that at that time you would have taken any of the specific steps that are the subject of the charge.

56When the entirety of your contact with the online covert operative is considered, however, the extent to which your offending is mitigated by any kind of entrapment is very limited indeed.

57The online covert operative has not initiated or encouraged any interest you had in religious extremism or in the pursuit of hijrah that you did not already have. The online covert operative provided an outlet and a direction for your pre-existing and deeply held desires. He provided a means for which you could purchase an AK-47 but did not introduce a desire in you to possess and use one. You were not in any way exploited in order to foster intentions you did not otherwise have. You were not, as was the case in Taleb,[8] a vulnerable individual who was actively encouraged to do something you may not have otherwise contemplated.

[8]R v Taleb (No 5) [2019] NSWSC 720.

58You did not encourage any other person nor engage anyone else to participate in this conduct with you. I also note that the offending conduct is constrained to the 17 day period of the charge and that the period of your interest in extremist propaganda material goes back only as far as December 2018.

59Your intention was not specific. Whilst your desire may have been strong, this was not reflected in well-established or realistic plans as to precisely how you were to achieve your goal to fight on the frontline. There was no clear and defined intention to commit any individually identified act of violence.

60Overall, I accept the proposition that your offending is a low to middle range example of an inherently serious offence.

Personal Circumstances

61Khaled Temssah, you are 32 years old and were 30 years old at the time of offending. Your parents were born in Lebanon and moved to Australia 35 years ago in order to escape the Lebanese Civil War. You are the second of three children and describe your family as being culturally Muslim, but not religiously devout. You have a close and supportive relationship with each of your family members and I note your family was present via video link for your plea hearings.

62You attended the King Khalid Islamic College in Coburg from Prep until Year 10. In your early years of schooling, you recall being bullied for being overweight and that you were socially isolated with no close friends. However, in your senior years this bullying reduced and you developed a close group of friends. In Year 11, you moved to Roxburgh Park College where you completed Year 12.

63You  commenced a cabinet-making apprenticeship. You also obtained a security guard license and worked across these roles simultaneously.

64You met your wife and after one year, you were married in an Islamic ceremony and under Australian law. You moved into a property together in Dallas but sold that property in 2017. You rented various properties from that point, until your arrest.

65Your first child was born in 2015. Your family commenced a more devout practice of your faith, which included the wearing of a hijab and thobe. You also began your involvement in charitable work, through volunteering with Homeless Aid, a Muslim-run project that provides food for people experiencing homelessness.

66Your second child was born in 2017. In 2018, you founded the charity, ‘Families in Need Australia’ whereby funds raised through this organisation were given to more established charities such as Islamic Relief. You were employed as a car salesman at various dealerships through this period up until your arrest in 2019.

Matters in Mitigation

Plea of Guilty and Contrition

67You first indicated an intention to plead guilty to this charge on the day prior to the scheduled contested committal hearing. The resolution of this matter meant that it could proceed as a straight hand-up brief and that no witnesses were required to give evidence at committal. I consider this to be a plea of guilty at an early stage in proceedings.

68Your plea of guilty has considerable utilitarian value. By your plea you have spared the time and resources that would otherwise have been expended on contested proceedings. Those resources would have been significant indeed. A trial of this nature, even of a single accused, is a substantial undertaking involving a great amount of court time. These charges are challenging for the prosecution to present even when the case is strong and the running of these cases is resource intensive.

69The utilitarian worth of your plea is of particular value at a time when pandemic restrictions have placed considerable pressure on court listings. You are entitled to a considerable discount on sentence by virtue of your plea of guilty.

70I also consider that your plea of guilty is reflective of a level of remorse for your offending, though I will discuss this matter in more detail in the context of your prospects of rehabilitation.

Prospects of Rehabilitation

71You are, at age 32 , still a relatively young man. You have no prior criminal history. Up until the commencement of your interest in extremist ideology in December 2018 when you were 28 years old, you were, by any measure, a successful and valuable member of society. You were married with a young family. You were employed and seemingly progressing at your work. You had displayed an admirable capacity for altruism, as revealed by your acts of community service.

72The character references tendered on your plea reveal that you are loved and highly regarded by your family and by others.[9]

[9]Defence Exhibit 4.

73You were remanded in the middle of 2019. Your time on remand since March 2020 has been subject to significant restrictions owing to the pandemic. During your period in custody, you have received good reports from prison officers and were allocated as a cleaning billet for your unit.[10] You applied for a role as a ‘Peer Support Educator’, however given the nature of the charges against you, this was denied.[11]  Despite the pandemic restrictions, you have completed some courses whilst in custody.[12]

[10]Defence Exhibit 5.

[11]Defence Exhibit 6.

[12]Defence Exhibit 7.

74You gave evidence during your plea. Publicly and under oath, you renounced belief in the extremist ideology that motivated this offending. The cynicism expressed by the Prosecution about the sincerity of your stated position is understandable. Your rejection of extremism was given in the course of testimony during which you clearly and falsely minimised the nature of your intentions in going to Kashmir.

75Whilst I cannot completely exclude the possibility that your renouncement was disingenuous, on balance I am prepared to accept it as genuine. It was public, it was on oath, and given subject to cross-examination. Your renouncement is also consistent with similar sentiments  you have expressed to Guy Coffey[13] and Peta Lowe.[14]

[13]Defence Exhibit 3.

[14]Defence Exhibit 2.

76Both Mr Coffey, a psychologist, and Ms Lowe, a consultant with expertise in assessing the risk of recidivism for terrorism related offenders, have both arrived at what might be described as positive but heavily qualified conclusions about your prospects of rehabilitation.

77Mr Coffey said that you had arrived at “a position which should preclude recidivism”. He said that there were two caveats to that proposition. He expressed concern that you had limited insight into the reasons why you were susceptible to offending as you did and worried that your change had “come about almost too easily”.

78Ms Lowe assessed you against the VERA-2R testing criteria and concluded that your violent extremist risk is currently in the low range. Ms Lowe gave evidence on your plea and was very careful to note that her testing did not amount to an actuarial assessment of risk.

79In addition to the matters listed above, I consider your plea of guilty, the salutary effect of being imprisoned for the first time in your life, and the fact that your family, friends and broader community are now fully informed as to matters that were previously unknown to them, are all matters supportive of the proposition that your prospects of rehabilitation are positive.

80This is, however, not the entirety of the evidence that must be considered on the issue. Some caution must be expressed simply because you appear to have become radicalised within a relatively short time. From the time you first commenced to access extremist material online to the time you were seeking to arrange your departure from the country and separation from your family to potentially martyr yourself in a foreign war zone was a matter of months. The speed of your conversion to become a person prepared to give your life in service of a religious ideology is concerning.

81It is also troubling that this change occurred apparently without your family becoming aware. Your capacity to deceive them was significant. I also note that you held these extremist beliefs as recently as June 2019, so you are still at an early stage in your rehabilitation. Similar material to that which inspired your extremist beliefs will continue to exist online.

82On balance, I consider that your prospects of rehabilitation are reasonable. If you continue to engage with appropriate professional assistance then those prospects should improve further.

Burden of Imprisonment and Impact of COVID-19

83Since March 2020, pandemic restrictions imposed on the prison environment have made imprisonment more burdensome than it would otherwise be. This additional burden is likely to be a feature of prison life for the foreseeable future.

84Further, I accept that you have endured and will continue to endure anxiety and stress because you are very conscious that your imprisonment has placed your wife and children in a very difficult predicament.

Sentencing Principles

85The sentence imposed on you must punish you adequately for your conduct, considering its objective gravity.

86Whilst you are someone with no prior criminal history, specific deterrence does still have some role to play in sentencing, albeit somewhat reduced.

87General deterrence remains an important sentencing consideration. Whilst in practical terms, seeking to deter those prepared to give their lives for a cause and motivated by religious ideology is a difficult task, the sentence imposed on you must still seek to deter like-minded persons from engaging in this sort of conduct.

88It has been put on your behalf that I should consider the fact of you providing details of the providing the PIN for your mobile phone amounts to cooperation for the purposes of s 16A(2)(h). I note that you were in fact lawfully compelled to do this pursuant to s 3LA of the Crimes Act 1914. In my view, not acting to resist that request is perhaps better described as the absence of active unlawful resistance than to cooperation such as to mitigate sentence.

89Given the nature of this matter, the denunciation of your conduct and the protection of the community are both important sentencing considerations.

Comparable Cases

90In sentencing someone for a federal offence, it is important that some consistency is sought to be achieved by having regard to comparator cases. This is however, one factor to be considered in the instinctive synthesis and does not set the limits within which the sentencing discretion must be exercised. Facts vary from case to case, as do matters in mitigation.

91Both parties have made reference to the sentences imposed by Justice Croucher in The Queen v Cerantonio & Ors.[15] I have considered that case to provide strong assistance as to the applicable principles in sentencing in matters of this nature.

[15][2019] VSC 284.

92It was submitted on your behalf that your offending is at the level of, or below that of, the co-accused of Mr Cerantonio.

93The prosecution contended that your offending was objectively lesser than that of Mr Cerantonio but more serious than that of his co-accused.[16]

[16]Prosecution Exhibit 8.

94

Your offending is a lesser example of the offence than was the case for

Mr Cerantonio. The substantial period of time over which his offending occurred plus his actions in recruiting and encouraging the offending of his co-accused justified Justice Croucher’s description of his offending as very serious.

95

I regard your culpability as being greater than that exhibited by each of

Mr Cerantonio’s co-accused. In their case, it was conceded by the Crown that their offending was towards the lower end of the spectrum by virtue of several factors. The most relevant distinction between their offending and yours was that the Crown accepted in their case that these offenders would not have been involved in the offence but for the charismatic and persuasive Mr Cerantonio.

96The sentencing principles relevant to offences against Commonwealth legislation are set out in Part 1B of the Crimes Act 1914 (Cth). Section 16A of the Act sets out a non-exhaustive list of matters to which the Court must have regard when passing sentence.

97In sentencing for a Commonwealth matter, the court must not pass a sentence of imprisonment unless satisfied, having considered all other available sentences, that no other sentence is appropriate in all the circumstances of the case.

98It has not been suggested in this case that in all the circumstances any other sentence save for a period of imprisonment with a head sentence and a non-parole period was appropriate.[17] Having regard for the objective gravity of the offence, the need for deterrence and an adequate punishment, and balancing the matters in mitigation including the plea of guilty and the prospects of rehabilitation as I have found them to be, I have concluded that no other sentence bar imprisonment is appropriate in all the circumstances.

[17]Prosecution Exhibit 7 and Defence Exhibit 1.

Sentence

99Khaled Temssah, I sentence you as follows.

100On Charge 1, you are convicted and sentenced to 4 years and 9 months imprisonment.

101I order that you serve a period of 3 years and 9 months before becoming eligible for parole.

102Pursuant to s 16E of the Crimes Act 1914 (Cth), I declare that this sentence commences today and that 818 days of presentence detention are already served under the sentence imposed.

103Pursuant to s 6AAA of the Sentencing Act I declare that but for your plea of guilty I would have sentenced you to 6 years and 3 months imprisonment with a 5 year non-parole period.

104A forfeiture order was sought by the prosecution in relation to the two Samsung mobile phones. This was not opposed by counsel on your behalf and I make that Order in the terms sought.

105Are there any further orders I need to address?

106MR IHLE:  Yes, Your Honour, there is one matter.  It is referred to in our written submissions but typically it arises pursuant to s 105A.23 of the Criminal Code.  That is the obligation that falls to Your Honour to warn Mr Temssah about the possibility of continued detention orders being sought.

107HIS HONOUR:  Thank you.  Sorry, I did have that, I just deleted it on my last draft of it, sorry.  Let me get the wording of that.  Is that the wording of that in your submissions?

108MR IHLE: Not the precise wording of the order. I can draw Your Honour's attention to the part of the submissions that deals with it, but it is on the final page, page 20, which is at paragraph 86(d) and it is the requirement that falls to the court to warn the person that an application may be made under the Criminal Code for a continuing detention order requiring the person to be detained in prison after the end of the person's sentence for the offence, or at the end of any later sentence if the person is continuously detained in custody and would otherwise be released into the community.

109HIS HONOUR: Thank you for reminding me of that, Mr Ihle. So, Mr Temssah, because you have been convicted of an offence under Part 5.5 of the Code I must warn you that an application may be made under the Code for a continuing detention order requiring that you be detained in prison after the end of your sentence for that offence.

110You understand that that is an application that can be made, so I have given you that warning about that because of the nature of your offence?  Is there anything further?

111MR IHLE:  Not from me, Your Honour.

112HIS HONOUR:  Thank you.  Ms Condon?

113MS CONDON:  And nor from us, Your Honour, thank you.

114HIS HONOUR:  Thank you, in which case I thank all the parties for their assistance with this matter.

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