Zahab v R

[2021] NSWCCA 7

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Zahab v R [2021] NSWCCA 7

Hearing dates:

22 July 2020

Decision date:

05 February 2021

Before:

Bathurst CJ at [1]; Garling J at [55]; Wright J at [62];

Decision:

(1)   Grant the applicant leave to appeal.

(2)   Appeal dismissed.

Catchwords:

CRIME – appeals – appeal against sentence – onerous conditions of custody – limited evidence as to conditions – High Risk Management Correctional Centre (HRMCC) – whether sentencing judge failed to take conditions of custody into account on sentence

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code (Cth)

Cases Cited:

Alameddine v R [2020] NSWCCA 232

C v R [2013] NSWCCA 81; 229 A Crim R 233

Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73

Lodhi v R [2007] NSWCCA 360; 179 A Crim R 470

R v Alameddine (No 3) [2018] NSWSC 681

R v Atai (No 2) [2018] NSWSC 1797

R v Atik [2007] VSC 299

R v Durocher-Yvon (2003) 58 NSWLR 581; [2003] NSWCCA 299

R v Ferrer-Esis (1991) 55 A Crim R 231

R v HG [2018] NSWSC 1849

R v Khalid [2017] NSWSC 1365

R v Khan (No 11) [2019] NSWSC 594

R v Scott [2003] NSWCCA 28

R v Totten [2003] NSWCCA 207

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Haisem Zahab (Applicant)
The Crown (Respondent)

Representation:

Counsel:
C Smith SC with R El-Choufani (Applicant)
P R McGuire SC with M Kalyk (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2017/63591

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2019] NSWSC 629

Date of Decision:

7 June 2019

Before:

Bellew J

File Number(s):

2017/63591

Judgment

1. BATHURST CJ: The applicant, Haisem Zahab (the applicant) pleaded guilty to two counts on an indictment presented on 27 May 2019.

2. The first count was that between about 1 December 2014 and about 28 February 2017 the applicant, contrary to s 102.7(1) of the Criminal Code (Cth), intentionally provided support or resources to a terrorist organisation, namely Islamic State, that would help the organisation engage directly or indirectly in preparing, planning, assisting in or fostering the doing of a terrorist act, knowing the organisation was a terrorist organisation. The support particularised was the research into and development of a laser warning receiver, and rockets and a rocket guidance method.

3. The second count on the indictment was that between about 28 February 2017 and about 1 March 2017 the applicant, contrary to s 3LA(5) of the Crimes Act 1914 (Cth) failed to comply with an order under s 3LA(2) of the Crimes Act. The offence involved refusing to provide passwords to police to allow them to unlock devices on which there was encrypted material.

4. The offence the subject of count 1 on the indictment carries a maximum penalty of 25 years imprisonment, whilst the offence the subject of count 2 carries a maximum penalty of 2 years imprisonment.

5. The applicant pleaded guilty to both offences. In respect of the offence the subject of count 2, he was sentenced on 7 June 2019 to a term of imprisonment of 3 months commencing on 28 February 2017 and expiring on 27 May 2017. In respect of the offence the subject of count 1, he was sentenced to imprisonment for 9 years commencing on 28 March 2017 and expiring on 27 March 2026. The sentencing judge specified a non-parole period of 6 years and 9 months imprisonment commencing on 28 March 2017 and expiring on 27 December 2023. In imposing the sentences, the sentencing judge allowed a discount of 25 per cent for the pleas of guilty to both offences.

6. The applicant has sought leave to appeal against his sentence on the sole ground that the sentencing judge erred in failing to take into account the onerous nature of the applicant’s custodial conditions.

The sentencing judgment

7. At the outset of his judgment, the sentencing judge set out what he described as general principles concerning sentencing for terrorism offences. He accepted that the offence the subject of s 102.7(1) of the Criminal Code does not involve the commission, or acts in preparation for the commission, of a terrorist act, but stated that the principles which apply to that type of offending apply with equal force to an offence contrary to s 102.7(1). In setting out those principles he stated that the primary considerations on sentencing are the protection of the community, the punishment of the offender, the denunciation of the offending and deterrence, both general and specific.

8. He also stated (at [8]) that subjective circumstances and mitigating factors, including considerations of rehabilitation, are to be given less weight.

9. The sentencing judge set out the agreed statement of facts, which demonstrated the applicant’s adherence at the time of offending to the principles of Islamic State and the research and development work which had been carried out by him which formed the subject of the s 102.7(1) offence. Because of the limited nature of the appeal it is unnecessary to refer to these agreed facts in any detail.

10. The applicant gave evidence at the sentencing hearing. The sentencing judge referred to the applicant’s evidence that in about 2012 he became aware of the nature of the conflict in Syria via mainstream news, social media outlets and information obtained from family members. The applicant stated that he formed a desire to assist civilians in that conflict to defend what he regarded as the oppressive regime of Bashar al-Assad. The sentencing judge noted that the applicant gave evidence that he became “obsessed” with Islamic State which he regarded as a “force of good”.

11. The sentencing judge recorded that the applicant initially maintained that it was only after he had been arrested and taken into custody that he began to realise that his generally favourable view of Islamic State may not be correct, although he later acknowledged that even before his arrest he had seen material on social media platforms which suggested that Islamic State was involved in the commission of various atrocities.

12. The sentencing judge noted that in terms of the offending the subject of count 1, the applicant said that he decided to try and build a laser warning receiver as a challenge to himself, but that he shared material with another Twitter user who he thought was a member of or was otherwise connected to Islamic State. He noted that the applicant agreed that once he had compiled his report in relation to the receiver, he sent it to Islamic State with the intention of assisting that organisation. His evidence was that a laser warning receiver assisted people to avoid the effect of laser guided missiles. The sentencing judge recorded that the applicant also agreed it had the effect of keeping people alive so that they could kill other people.

13. The sentencing judge noted that the applicant agreed that the purpose of developing the laser warning receiver was so that it could be used in the battlefield, but stated that he did not send any information to anyone regarding the development of rocket simulations, although he said that if someone had asked him he would have sent it. The sentencing judge also noted that the applicant accepted that he regularly used an alias in order to ensure that others would not discover the communications and conversations in which he was engaged.

14. In relation to count 2, the applicant agreed that he refused to provide passwords to police to allow them to unlock devices on which there was encrypted material, saying that he had done so out of anger. The sentencing judge noted that the applicant’s evidence was that his “journey full circle” to reach the point of regret for supporting ISIS had taken approximately 12 months, but stated that the applicant agreed that even at the conclusion of that period he did not offer the police any assistance in providing the relevant passwords to allow them access to the devices.

15. The sentencing judge noted that in his evidence the applicant acknowledged that he was aware that Islamic State had declared its intention to create an Islamic Caliphate but denied that this was his reason for supporting them. The sentencing judge also noted that the applicant acknowledged that his support of Islamic State was “incredibly wrong” and said that he now accepted that the organisation itself was also “wrong”.

16. The sentencing judge referred to the evidence given by a Mr Ahmed Kilani, a Muslim Prison Chaplain, who gave evidence that he had seen the applicant on three or four occasions in custody for extended periods and had other more limited contact with him on a further 10 occasions. Relevantly for the purpose of the appeal, he noted that Mr Kilani said that in his observations the applicant had limited interaction with other inmates in custody, and that the applicant had told him that was because his views were different to those held by others. He noted that Mr Kilani also stated that it was “extremely rare” for a person to publicly denounce Islamic State.

17. The sentencing judge referred to a summary by the Crown of what was included in the offending the subject of count 1. To understand the nature of the offence it is convenient to set those paragraphs out:

“34   In addressing the offending in count 1, the Crown pointed firstly to the offender’s conduct in relation to the laser warning receiver which, it was submitted, included:

(i)   researching laser guided weapons, electronic defence systems, laser target designation and electronic circuit design;

(ii)   developing schematics and printed circuit board designs, often incorporating the image of the Islamic State flag;

(iii)   using computer aided drawing packages and simulation tools to design a unit to house the electronic components of the laser warning receiver;

(iv)   compiling documents, including a 288 page report, which contained detailed analysis, observations and results of research and testing of the laser warning receiver which was then sent to Islamic State;

(v)   creating a tutorial about his research, development and design of the laser warning receiver; and

(vi)   purchasing a large number of electronic components for use in the construction of the laser warning receiver prototype.

35   The Crown then pointed to that part of the offending in count 1 which related to rocket research, and submitted that it included:

(i)   conducting research in relation to experimental rockets, fuel burn rates and motor designs;

(ii)   designing rocket bodies and nose cones using computer aided drawing programs;

(iii)   researching the performance and manufacture of rocket propellant; and

(iv)   conducting flights of rockets to test the accuracy of computer software.

36   The Crown submitted that in carrying out all of the tasks referable to the offending in count 1, the offender had developed and utilised a sophisticated computer system. The Crown also emphasised that the offender was in regular contact with persons overseas during the period of the offending, and had taken significant steps to conceal his activity by the use of an alias, as well as by the use of encrypted messaging applications installed on his devices.”

18. The sentencing judge stated that the offending the subject of count 1 was not fleeting. He said it occurred over a significant period of time and was concentrated and sophisticated. He stated that it involved the applicant engaging in intricate and planned scientific research with unwavering focus, at all times intent upon assisting Islamic State in its involvement in armed and violent hostilities overseas. He stated that the results of the research undertaken and the assistance the applicant provided to Islamic State was not nebulous but was both substantial and tangible. He pointed out that it was an agreed fact that the applicant sent a lengthy report in relation to the laser warning device to persons associated with Islamic State, and that in the context of his research about rockets he made mention of a conversation with “Ullah” (Samata Ullah, United Kingdom supporter of Islamic State) that he had sent to Islamic State “a full chemical munitions cookbook” which explained a number of issues including data verification.

19. The sentencing judge rejected the applicant’s assertion that at the time of the offending in count 1 he held a genuine belief that Islamic State was a force of good rather than a force of evil. The sentencing judge rejected that evidence and it was not in dispute that he was correct in doing so. The sentencing judge also rejected the submission that the seriousness of the applicant’s offending was mitigated by the fact that citizens of Australia were not directly affected by anything that he had done.

20. The sentencing judge concluded in those circumstances that the offending in count 1, involving as it did a high degree of planning, sophistication and analysis over a long period of time, was very serious. He said that it may be usefully contrasted with the circumstances of the offending considered in R v Atik [2007] VSC 299 where the assistance provided was essentially limited to obtaining airline tickets to allow persons to fly interstate on two occasions. In that case, the offender was found to have demonstrated contrition and remorse by his plea of guilty and assistance to the authorities, which were described as “mitigating factors of a high order”. In sentencing the offender to 5 years’ imprisonment with a non-parole period of 4 years, 1 month and 14 days, the sentencing judge in Atik stated that but for the undertaking to give assistance, he would have imposed a sentence of 7 years for the offence.

21. The sentencing judge also concluded that the offending in count 2 was serious, stating that the applicant’s conduct in refusing to comply with a demand by the police was consistent with a desire to ensure, as far as possible, that the full extent of his offending was not discovered. The sentencing judge concluded that the investigation into the applicant’s activities was frustrated by his failure to comply with the demand which had been placed on him. He stated that the section should be viewed as Parliament’s response to the fact that criminal offending has become more sophisticated, and that combating it requires the exercise of extended powers of investigation.

22. The sentencing judge stated that he had regard to the evidence of Mr Kilani, stating whilst he had no doubt that Mr Kilani was giving his evidence honestly, the fact remained that his opinions were based largely upon what the applicant told him. He stated that if what the applicant said to Mr Kilani, which was generally consistent with what he said in his evidence, is rejected, then the foundation of Mr Kilani’s opinions falls away to a large degree.

23. The sentencing judge stated that in all the circumstances, whilst the applicant’s pleas of guilty were some evidence of contrition, he was sceptical as to whether the expressions of contrition in his evidence were genuine. He said that that conclusion was inextricably linked to any assessment of the applicant’s prospects of rehabilitation, which he said were necessarily dependent upon a renunciation of the views which were held by the applicant at the time of his offending. He stated that he was guarded about those prospects, and that in any event, in passing sentence for offences of that nature, the object of the Court is to punish, deter and incapacitate to the point where rehabilitation is likely to play a minor, if any, part.

24. The sentencing judge also concluded that personal deterrence and general deterrence were important sentencing factors in matters of the nature of that under consideration.

25. In dealing with the applicant’s subjective circumstances, the sentencing judge referred to a report of a Mr John Machlin, a clinical psychologist, dated 14 May 2019 which was tendered on the sentencing hearing. He stated that the applicant had reported no personal or family history of mental illness. He also stated that Mr Machlin ultimately diagnosed the applicant as suffering from an adjustment disorder with depressed mood. He stated that it was evident that Mr Machlin attributed this condition to the stress of incarceration. He stated that there was nothing in that report which moderated the need for general deterrence.

26. The sentencing judge also referred to character references which described the applicant as being a person of excellent character who had never exhibited any violent or radical behaviour. The sentencing judge stated he was prepared to conclude that the applicant was a person of otherwise generally good character, but given the nature of the offending, that fact was of less weight than might otherwise have been the case.

27. In those circumstances the sentencing judge imposed the sentence to which I have referred.

The appeal

28. Before dealing with the submissions on the appeal, it is convenient to set out some of the evidence and submissions before the sentencing judge on which the parties placed reliance.

29. As I indicated the applicant gave evidence. He said very little about his conditions of custody. He was asked what motivated him to write certain letters indicating support for Islamic State whilst he was in prison, and he gave the following answers:

“Q. Do those letters basically reflect your anger at that time?

A. Yes, of course, I was very angry at that time at the way I got arrested. My journey of – I’ve never been to prison before. I was sent to Supermax prison. It appeared to me that most of the inmates were Muslim. I felt like I was being attacked for my religion.

HIS HONOUR

Q. Attacked by whom?

A. By the system. I felt like I was being attacked for my religion because I was in Supermax prison and it appeared to me that they were young - they were all children. It appeared to me they were the same age as my young boy, and that they were young kids, and it appeared that I was being attacked for my religion, and eventually when I got a TV I saw a lot of anti-Muslim sentiment in the news.”

30. He was then asked questions concerning the reason he changed his mind about Islamic State. He was asked these questions and gave these answers:

“Q. Along the way whilst you’ve been in prison in Supermax, have you met others that have been charged with terrorist offences?

A. Yes, I have.

Q. Have you had occasion to discuss their ideology?

A. Yes.

Q. Have some of those been - or maybe all of them - supporters of ISIS?

A. Some of them are and some of them are supporters of other groups.

Q. What I want to get to is did you form the impression that their ideology as totally antithetical to yours?

A. Yes, I did, because just from exchanges, I was looked at and criticised for not knowing my religion more, and I ended up distancing myself from that because - and it gave me a feeling in my head actually that if I’m being exposed to this kind of chatter, then what would be happening on the ground in ISIS territory. So it was like a wake-up call as well.

Q. When you say this type of chatter, do you mean that they are still - and I don’t want to nominate them by name - but they were still proposing some sort of violent jihad or something of that nature?

A. No, it wasn’t exactly that, no. It was more of just talk about supporting. Who do you support and what’s happening on the ground, and what’s the correct doctrine and what’s the correct ideology and things like that. And I was perceived as someone that doesn't know my religion and attacked verbally and I just - I don’t like confrontation, so I just went silent and walked away from those things, and I distanced myself ever since then.”

31. The Muslim Prison Chaplain Mr Kilani gave the following evidence concerning his discussions with the applicant whilst he was in prison:

“Q. Tell me this, were you able to observe him interacting at all with any of the other prisoners that are held in Supermax?

A. No, I would see him on his own, so I would see him generally just with one other inmate sometimes in the area they’re held but no, not generally, no.

Q. Did he report to you that he was - because his views were different that he was isolated from the other prisoners in an exchange of ideas?

A. Yes he did. And he’s not the only one down there in that circumstance but for him it was very prominent. Yep.

Q. Tell me this in your experience how rare is it for a person to publicly denounce ISIS?

A. Extremely rare. For me, in my occupation, and especially with inmates on remand I don’t think if it’s ever happened before, maybe once or twice, but I’ve never had anyone openly denounce, renunciate it in that way with me before.

Q. And your view does it place him in some danger having done that?

A. Yes it does. The conditions that are held down there are quite difficult for inmates in that they’re very limited in their associations that they have, and there are some inmates that are quite extreme and radicalised down there. So for you to denounce that when there’s members in that facility that are actually members of ISIS that people there, that puts you in a very difficult situation while you’re in custody.”

32. In cross-examination Mr Kilani said he had been working at the Supermax since 2015, stating he also worked with the deradicalisation team for one year where he only dealt with terrorist offenders. In re-examination he said that the applicant appeared to gradually become aware of the violations ISIS had committed. He said that the applicant had gained this realisation through talking to him and through also engaging with some of the other inmates.

33. Particular reliance was placed on the following extract from the report of Mr Machlin:

“CONSEQUENCES AND CURRENT FUNCTIONING

Mr Zahab has been in custody since he was arrested on 28 February 2017. Aside from the first two days, he has spent his entire detention in the HRMCC at Goulburn due to his high security status.

Mr Zahab related the difficulties of enduring the conditions within the HRMCC. Human interactions are severely restricted, and there have been times when he has had no association with other detainees at all. Unscheduled lock-ins increase the isolation. He said, in two years, he has been locked in 24 hours a day for over 200 days.

Family visits have to be approved a month in advance, and are sometimes cancelled. His family has incurred unavoidable delays in the annual requirement to re-register for contact visits, and he has not seen them in the last three months. Box visits are an option, but they are distressing to the younger children. He is permitted phone calls every two days, but again they are often cancelled due to lock-ins.

Due to the solitude, he said, ‘Sometimes I feel I’m losing my mind…I talk to myself…I talk to my children as if they are with me in my cell.’ He said he has become very emotional, and considers himself ‘a changed man’ in terms of how easily he becomes tearful, especially when he thinks of family and children. He said he tries to keep to a routine to pass the time. Sleep has been difficult throughout his detention. He was given sleeping pills at one stage, but he stopped using them due to side-effects of bodily fatigue.

Aside from his own welfare, Mr Zahab related a large amount of concern for his family. His arrest was highly traumatic for them given the sudden and dramatic nature of the police raid, when police reportedly blew down the door with explosives and held guns to family members’ heads. He said the three youngest children suffered ongoing trauma symptoms, and his youngest son has been seeing a psychiatrist. After the media published his address, locals would come ‘sightseeing.’ He said, ‘Some hoons went to the front gate in utes and terrorised the family.’ His wife has been shunned by the community. She wants to sell the house. The family continues to be affected by noises in the night.

Mr Zahab related that his wife, who is prone to stress, suffered a stroke last year in the prison carpark, causing some initial paralysis, and now lingering pain down one side. His children’s distress continues. His parents, with whom he is not allowed physical contact, have both shown high distress.

Mr Zahab also related concerns over difficulties gaining access to medical care, and especially dentistry. He referred to some recent problems with broken teeth, saying that he has not seen a dentist in a year and eight months.”

34. Mr Machlin made the following additional comments:

“Now that he is in custody, the conditions of the HRMCC clearly add to the hardship of his detention, coupled with his concerns about the strain on the rest of the family. He is currently coping as well as can be expected, but with difficulty. Isolation, sleeplessness, worry, and lack of control over his life will continue to challenge him. He reports some frailties with the occasional sense of ‘losing my mind’ and easily triggered emotion. Although his mental health is generally robust, extended confinement within the HRMCC will increase his vulnerability to mental health problems.”

35. In written submissions filed on behalf of the applicant at the sentencing hearing, only brief reference was made to the conditions of custody. Under the heading “Specific and general deterrence” the following remarks were made:

“It is further submitted that the offender’s incarceration in the ‘super Max’ section of Goulburn gaol with all the privations attached to that is in itself a more severe form of punishment already sustained than that which a normal prisoner would be subjected to.”

36. In submissions on the sentencing hearing, the then senior counsel for the applicant made the following submission:

“Of course, I needn’t say that the conditions under which they’re held there are extreme. They’re accepted as necessarily extreme for people facing terrorist offences, but they are very harsh regimes et cetera.

There is a body of material that is before your Honour which would support the proposition, and that’s the character references which support the proposition that he is not a violent person by nature. He’s never committed acts of violence and I’d ask you to ignore the finding of a rifle on his premises. That’s not an indication that he was in any way violent. There were some doubts as to who it was that really - we won’t through that.”

The submissions

a   The applicant

37. Senior counsel for the applicant on the appeal made what he described as three points in his submissions. All of these points were interrelated. The first of the three points was that the sentencing judge failed to take hardship into account. He referred to the evidence of Mr Kilani to which I have referred at [31] above, which he submitted was “specifically relevant to his subjective case in terms of conditions of custody in the particular place that he’s housed”. He referred to that portion of the sentencing judgment where the sentencing judge dealt with the evidence of Mr Kilani (SJ [30]-[31]; see [16] above), noting that it was under the heading “The nature and circumstances of the offending”. With respect, I would place little weight on that fact. Further, he accepted that there was no evidence of how association was managed in the institution where the applicant was in custody.

38. He also referred to the reference by the sentencing judge to the report of Mr Machlin to which I have referred at [25] above. He submitted that there was no mention of the fact that because of the applicant’s mental health condition his conditions of custody would be more onerous.

39. Senior counsel for the applicant submitted that the relevant test was not whether there was any evidence contrasting the applicant’s position to that of other inmates in the High Risk Management Correctional Centre (HRMCC), but rather whether his custody was more onerous than that of the average prisoner. He accepted, however, that there was no evidence contrasting the applicant’s position against other inmates of the HRMCC, except in relation to his renunciation of extremist views “and the fact that he would endure likely detention in that Centre … for years”. In that context, he referred to the applicant’s description of his conditions of custody to Mr Machlin which I have set out at [33] above.

40. The second of the three points on which senior counsel for the applicant relied was the proposition that the sentencing judge was obliged to take the conditions of custody into account. He submitted that was supported by what was said in C v R [2013] NSWCCA 81; 229 A Crim R 233 at [41]-[44] and Lodhi v R [2007] NSWCCA 360; 179 A Crim R 470 at [254]. He submitted that the former case, which dealt with hardship endured as a result of the applicant being placed in protective custody, demonstrated that the relevant comparison was the applicant’s conditions of custody compared to the general prison population. It should be noted that in that case, Hoeben JA, with whom the other members of the Court agreed, stated that it was up to the offender to lead evidence of such onerous conditions. In relation to Lodhi, senior counsel for the applicant submitted that Price J stated that it was necessary to take into account in favour of the appellant the segregated pre-sentence custody and the likelihood it would continue in determining the length of the sentence.

41. Senior counsel for the applicant submitted that his third point was that, similarly to what was said on sentence in R v Khalid [2017] NSWSC 1365 at [124] (on appeal Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73 at [94]) and in R v Alameddine (No 3) [2018] NSWSC 681 at [257] (on appeal Alameddine v R [2020] NSWCCA 232), there should have been taken into account the onerous conditions of custody imposed on the applicant by virtue of his detention at the HRMCC which will continue into the foreseeable future. However, it must be remembered that in R v Khalid, evidence was adduced from the Manager of Security at the HRMCC as to the custodial conditions (R v Khalid at [32]-[35], [39]-[41]), whilst in Alameddine similar evidence was led from the Senior Assistant Superintendent of the HRMCC (R v Alameddine (No 3) at [252]-[255]). No such evidence was led in the present case.

42. In his submissions in reply, senior counsel for the applicant referred to the decisions of this Court in R v Ferrer-Esis (1991) 55 A Crim R 231, R v Durocher-Yvon (2003) 58 NSWLR 581; [2003] NSWCCA 299 and R v Totten [2003] NSWCCA 207, which he submitted supported the proposition that the relevant comparison was between the conditions of custody of the applicant and that of the general prison population. So far as the absence of evidence was concerned, he referred to the comments made by Mr Machlin in his report.

b   The Crown

43. The Crown submitted that Mr Kilani’s evidence that renunciation of extremist views was extremely rare was incorrect, referring to R v Atai (No 2) [2018] NSWSC 1797, Atik, R v Khan (No 11) [2019] NSWSC 594 and R v HG [2018] NSWSC 1849. Whilst this submission is correct it does not seem particularly material. What may be relevant is what effect, if any, renunciation of extremist beliefs had on the applicant’s conditions of custody.

44. The Crown referred to the conclusion reached by Mr Machlin to which I have referred at [34] above, particularly his remark that the applicant was coping as well as could be expected. He submitted that placed the applicant in the same category as other offenders convicted of a terrorist offence. He submitted that in those circumstances it was not necessary to take the conditions of custody into account, as they had been taken into account in what he described as comparative sentences in cases dealing with offenders in a similar facility and suffering the same harsh conditions.

45. The Crown referred to Ferrer-Esis in which a foreign national was convicted of a drug offence. In that case, it was submitted that the respondent’s incarceration in a foreign country with a foreign language and foreign culture and being isolated from any outside contact should be taken into account on sentence. In rejecting that submission, it was stated (at 239) that little weight should be given to that circumstance when the respondent came to the country specifically and deliberately to commit a serious crime. The Crown submitted that the position was analogous in respect of a terrorist offender. He submitted that senior counsel for the applicant who appeared in the court below conceded as much.

46. The Crown submitted that the appropriate comparison in any event is not with the prison population generally but with other terrorist offenders. He submitted that the applicant was not in a special or unique category for having denounced ISIS.

Consideration

47. It is well established that the fact that an offender will be subject to onerous conditions of custody is a factor which can be taken into account as a mitigating factor in sentencing: see C v R; Durocher-Yvon at [20]; Totten at [43]-[44]. As was pointed out in the applicant’s submissions, the principle has been applied in cases involving terrorist offences: see R v Khalid and R v Alameddine (No 3) to which I have referred at [41] above; see also Lodhi at [254].

48. Further, in my opinion the relevant comparison is between the condition in which the applicant is to serve his sentence compared to that of the general prison population, not between persons convicted of similar offences. When offenders of a particular class are housed in similarly onerous conditions the comparison, with respect, would be meaningless. In a concurring judgment in Khalid v R, Harrison J at [101] emphasised that “[i]t is well understood that offenders receive sentences of imprisonment as punishment: they are not imprisoned for punishment”.

49. However, a number of cases have emphasised the need for evidence when the matter is raised. Thus, in C v R, Hoeben JA, with whom the other members of the Court agreed, emphasised the need for such evidence in the following passages at [41]-[42]:

“[41]   The better view, in my opinion, is that an offender in the position of the applicant during a sentence hearing, if he or she wishes to gain some benefit in the sentencing process because of the conditions under which the sentence is likely to be served, should adduce evidence as to those conditions. If the Crown disputes that evidence, it can call its own evidence, otherwise the evidence of the offender should be given appropriate weight.

[42]   In this case the only evidence adduced was that the applicant was serving his sentence under some form of protection. There was no evidence as to the nature and extent of restrictions, if any, which were imposed. In those circumstances, the fact that he was serving his sentence under a form of protection should have been taken into account by her Honour but only in a general sense, i.e. that normally some additional restrictions and constraints are imposed upon a person serving a sentence in such a way. If, however, an applicant seeks to have the conditions under which he or she is serving a sentence taken into account in such a way as to have a significant effect on the sentence to be imposed, then some evidence of those conditions needs to be adduced.”

See also R v Scott [2003] NSWCCA 28 at [34] per Bell J.

50. In the present case there was no direct evidence of the nature of the conditions of custody such as there was in Lodhi, R v Alameddine (No 3) and R v Khalid. The applicant’s evidence, to which I have referred at [29]-[30] above, was given in the context of describing how he changed his views concerning Islamic State and, as I pointed out, said little about his conditions of custody. The only evidence of this came from the report of Mr Machlin, who gave some account of the onerous conditions but ultimately concluded that the applicant was coping as well as could be expected with the isolation the applicant had described to him. From the account given to Mr Machlin it is apparent that the applicant’s principal complaint was the isolation he had to endure.

51. I referred at [35]-[36] above to the relatively brief submissions made by senior counsel for the applicant at the sentencing hearing.

52. In that context, the sentencing judge, whilst not directly referring to the submissions made, referred to the report of Mr Machlin and his ultimate conclusion that the applicant was suffering from an adjustment disorder with depressed mood which was attributed to the stress of incarceration. There is no reason to suggest that the sentencing judge did not take the whole of Mr Machlin’s report into account including the description of the applicant’s conditions of incarceration in arriving at the appropriate sentence. As was pointed out by James J in Totten at [44], the fact that a judge may not have expressly referred to the conditions of custody should not necessarily give rise to an inference that he or she has not taken them into account. I do not think that inference should be drawn in the circumstances of the present case.

53. It follows that this ground of appeal has not been made out.

54. In the result I would make the following orders:

1. Grant the applicant leave to appeal.

2. Appeal dismissed.

55. GARLING J: I agree with the orders proposed by the Chief Justice and with his reasons for those orders. The following reasons are in addition to those given by the Chief Justice.

56. In this case, during the sentencing proceedings, the applicant gave extensive sworn evidence which occupied about 3 hours of court time. He was both examined in chief, and cross examined. At no time was the applicant asked about, nor did he give any evidence about, the nature of the conditions of his custody, nor whether they were from his perspective harsh or difficult to endure. He said nothing at all about any adverse effect upon him of the conditions of his incarceration at the High Risk Management Correctional Centre (“HRMCC”) at Goulburn.

57. The applicant was not asked to verify the truth and accuracy of the history which he gave to Mr John Machlin, the psychologist, whose expert report was tendered as part of his case on sentence. The Chief Justice has set out the relevant parts of that report at [33] – [34] above.

58. As the Chief Justice notes, Mr Ahmed Kilani, a Muslim prison chaplain, gave some sworn evidence on behalf of the applicant. It dealt generally with the issue of whether the applicant had renounced any association with his previously held beliefs. It only indirectly and peripherally touched upon the conditions of custody being experienced by the applicant at the HRMCC. The part of the evidence noted at [31] above related to the perceived consequences for the applicant, by way of isolation from other inmates of the HRMCC, because of his claimed renunciation of ISIS. Mr Kilani had, at the time of the sentencing proceedings, been employed as a full-time prison chaplain for more than four years, working in a number of gaols in NSW. He is a person who, by reason of his occupation, might be expected to be able to give evidence about the conditions of custody experienced by inmates in the typical correctional centre, and those conditions in place at the HRMCC. Yet, no such evidence was led from him.

59. Perhaps in recognition of the paucity of evidence on this issue, senior counsel for the applicant (who did not appear on this appeal), both orally and in writing, made only a passing reference to the applicant’s conditions of custody as seen in [35]–[36] above.

60. In light of the very limited nature of the evidence, the sentencing judge was entitled to give the issue of the applicant’s conditions of custody very little, if any, weight as a factor mitigating the length of the sentences which were being imposed. The sentencing judge referred to the relevant evidence of Mr Kilani, and Mr Machlin. The nature of the evidence about the applicant’s conditions of custody did not call for any separate or additional consideration to that which the sentencing judge made when referring to the evidence of these two witnesses.

61. This application seems to me to be a case where the applicant now seeks to elevate, what was on the evidence before the sentencing judge, a minor and peripheral matter of no real or apparent adverse consequence for the applicant, into a central matter of great significance, such that the failure of the trial judge to consider and discuss the matter at greater length than he did, should be held to be an appellable error. I am unpersuaded that the sentencing judge made any error at all.

55. WRIGHT J: I agree with the orders proposed by the Chief Justice, for the reasons that his Honour has given.

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Decision last updated: 05 February 2021