Alameddine v R

BATHURST CJ: The applicant, Talal Alameddine (the applicant), pleaded guilty to the following charges on an indictment presented on 3 October 2017:

Three further offences were taken into account on sentence pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when passing sentence for the s 51(1A) Firearms Act 1996 (NSW) offence:

The offence the subject of count 1 (the terrorist offence) carries a maximum penalty of 10 years imprisonment whilst the offence the subject of count 2 (the firearms offence) carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. The three offences on the Form 1 each carry a maximum penalty of 14 years imprisonment.

On the terrorist offence, the applicant was sentenced to imprisonment for 7 years and 2 months with a non-parole period of 5 years and 3 months commencing on 15 February 2016 and expiring on 14 May 2021 with a balance of term of one year and 11 months commencing on 15 May 2021 and expiring on 14 April 2023.

On the firearms offence taking into account the three further offences on the Form 1, the applicant was sentenced to imprisonment for 14 years and 2 months with a non-parole period of 10 years commencing on 15 August 2019 and expiring on 14 August 2029 with a balance of term of 4 years and 2 months expiring on 14 October 2033.

The second sentence was accumulated on the first for a period of 3 years and 6 months.

It follows that the aggregate sentence was one of 17 years and 8 months to date from 15 February 2016 expiring on 14 October 2033 with a non-parole period of 13 years and 6 months with the applicant being eligible for release on parole on 15 August 2029.

The applicant has appealed against the sentences imposed on him on the following grounds:

Section 101.4 of the Criminal Code (Cth) relevantly provides as follows:

Recklessness is defined in s 5.4 of the Criminal Code in the following terms:

Section 51(1A) of the Firearms Act provides as follows:

The offences related to the supply of a loaded revolved to a Mr Raban Alou (Mr Alou) on the afternoon of Friday 2 October 2015. The weapon was subsequently supplied to Farhad Jabar Khalil Mohammad, a supporter of the radical terrorist organisation, Islamic State, who used it on the same day to murder Mr Curtis Cheng as he was leaving the NSW Police Headquarters where he worked as a civilian accountant.

At the time of the supply of the revolver to Mr Alou, the applicant was subject to a Firearms Prohibition Order (FPO) made pursuant to s 73(1) of the Firearms Act which had been served on him on 28 October 2014.

It appears the applicant first became involved with Mr Alou on 29 September 2015. In his sentencing judgment his Honour recorded and it was not disputed, that from 21 September 2015 Mr Alou was making attempts to obtain a firearm. At about 8.03pm on 21 September 2015 Mr Alou in company with another person met Person X3 in Greenacre and asked him if he could “get anything” and, as he said this, he turned his hands into the shape of a pistol. Person X3 said that he told Mr Alou to contact Person X2 for assistance. At 8.30pm on 24 September 2015 Mr Alou and another person met Person X2 at a chicken shop at Granville for approximately 25 minutes. Mr Alou asked Person X2 if he could source a firearm for him.

On the evening of 29 September Mr Alou met Person X1 and Person X2 at Granville and Person X2 told Mr Alou that he could not source a firearm for him. At 9.22pm on that day Mr Alou received an SMS from Person X2 texting the phone number of an associate of the applicant.

At 9.31pm on 1 October 2015 Mr Alou and another person attended the vicinity of the applicant’s home in Merrylands. Between 9.00pm and 10.30pm Mr Alou made five attempts to call the applicant using his wife’s mobile phone. The sentencing judge concluded that Mr Alou wished to contact the applicant urgently to obtain a firearm from him for use in a terrorist act.

At 10.38pm Mr Alou called the applicant and told him that he attended his house earlier that evening and had seen the applicant’s brother. The applicant confirmed that he was not at home that night but would contact Mr Alou the following day. Mr Alou insisted that the applicant see him that night.

Notwithstanding, the next contact between Mr Alou and the applicant was at 10.17am on 2 October. Between 9.30am and 10.17am two unanswered calls were made between them but at 10.17am the applicant sent a message to Mr Alou saying, “Salam alakum [peace be unto you] bro what’s happening come around”. At 10.18am Mr Alou sent a message to the applicant, “Wa alaykum salam [and unto you be peace] akhi [brother] im in Guildford ill msg wen im outside just wanna come give salams [greetings] to ya”.

At 10.29am Mr Alou sent a message to the applicant stating “Asalamu alaykum in outside”. At 10.31am Mr Alou parked his car in front of the property next door to the applicant’s house and walked to the vicinity of a nearby property where he moved out of sight.

At 10.41am Mr Alou returned to his vehicle and drove home.

Between 12.58pm and 1.20pm the applicant attempted to make six calls to one of Mr Alou’s mobile phone services from a public phone. The applicant again used a public phone in the afternoon to communicate with Mr Alou. At 1.10pm the following call took place between Mr Alou and the applicant:

Subsequently there were two unanswered calls to Mr Alou made through a public phone. At 1.19pm Mr Alou received a call from the applicant from a public phone who told him to meet him at Jones Park. He agreed to meet the applicant at the park in not less than 15 minutes. Mr Alou at the time was near the Parramatta Mosque.

At 1.30pm another person walked from his car towards Mr Alou’s vehicle before he returned to his own vehicle. That person then got into his vehicle and left the Parramatta Mosque driving towards Merrylands. That person was followed by Mr Alou who was driving his own vehicle.

At approximately 1.35pm the other person and Mr Alou arrived at the public carpark at Jones Park. Mr Alou then walked across a grassed area where he met the applicant who was carrying a black satchel bag across his body and a Foot Locker brand plastic shopping bag. Mr Alou and the applicant were in conversation for about 15 seconds. The sentencing judge noted that Mr Alou was dressed in a distinctive long black robe which he said would have been meaningful to the applicant in his dealings with Mr Alou that afternoon.

At about 1.40pm the applicant and Mr Alou walked to Mr Alou’s vehicle and got into it. Mr Alou drove and the applicant sat in the front seat next to him. A conversation between them was partly recorded by way of electronic monitoring.

The sentencing judge made certain findings in respect of this conversation in sentencing Mr Alou for the offence of aiding and abetting a terrorist act: R v Alou (No 4) [2018] NSWSC 221, affirmed on appeal Alou v R [2019] NSWCCA 231. The parties in the present proceedings agreed that he should make the same findings. These findings were in the following terms:

At 1.42pm Mr Alou and the other person parked their vehicles parallel to the street where the applicant lived. The applicant and Mr Alou got out of Mr Alou’s car and walked to the front of the vehicle and appeared to be engaged in conversation for some 6 minutes and 42 seconds. At 1.49pm Mr Alou and the applicant returned to Mr Alou’s vehicle. Mr Alou opened the driver’s side door of his vehicle whilst the applicant collected a black satchel bag, a Foot Locker brand plastic shopping bag and a black plastic shopping bag from the front passenger side of the vehicle. Mr Alou closed the driver’s door and walked to the driver’s side front door of the other person’s vehicle and leaned into the window towards that person and appeared to have a conversation with him. At the same time, the applicant was seen carrying the bags and heading into the street where he lived.

At 1.50pm Mr Alou and the person with him travelled to Merrylands Oval in Burnett Street, Merrylands. They parked parallel to each other and remained seated in their respective vehicles. Between 1.56pm and 2.04pm Mr Alou and the other person got out of their vehicles and walked into the park where they appeared to talk for approximately 5 minutes.

At 2.08pm the applicant entered Merrylands Oval carpark on a bicycle and met with Mr Alou. The applicant was wearing the same sports clothes and this time had a black satchel bag over his shoulder. The applicant and Mr Alou engaged in conversation in the carpark on two occasions for a total of about 5 minutes. The other person remained near the rear of his vehicle within close proximity to the applicant and Mr Alou.

At 2.12pm the applicant left the carpark on his bicycle. Mr Alou and the other person drove from Merrylands towards Wentworthville and parked their cars in the vicinity of the Alou family home. At 2.40pm Mr Alou walked towards the person’s vehicle and retrieved an object from the front passenger side of the car. He then drove his vehicle back to Merrylands Oval.

At 2.55pm the applicant returned to Merrylands Oval carpark once again on his bicycle. Whilst holding the bag, he walked up to the driver’s door of Mr Alou’s car. The two men were in conversation at the driver’s window for one minute and 24 seconds. The applicant removed a white plastic bag from the front driver’s window of Mr Alou’s car. Both men left the car park shortly afterwards.

His Honour concluded and it was not disputed that at some point between the first meeting with Mr Alou and the applicant at about 1.35pm and the final meeting at 2.55pm, a loaded British service revolver was provided by the applicant to Mr Alou. The revolver was unlicensed in Australia and there was no record of it having been imported into Australia legally.

The sentencing judge also noted that from the time they met at 1.28pm until they finally parted at 2.55pm, Mr Alou and the applicant were together and frequently in conversation at different locations at Jones Park, Merrylands and Merrylands Oval for a total period of 13 minutes and 21 seconds.

The matters I have referred to above were the facts leading to the commission of the offences the subject of each charge and the first offence on the Form 1.

Mr Curtis Cheng was murdered on 2 October 2015. The sentencing judge was satisfied that the applicant became aware that it was the revolver supplied by him to Mr Alou which had been used as the murder weapon. He stated that despite this and the continued operation of the FPO, there was no reluctance on the applicant’s part to involve himself criminally with firearms.

At 9.20pm on 6 October 2015 the applicant possessed a semi-automatic pistol (or an imitation thereof) on the footstep outside his home in Merrylands whilst several unidentified males watched on. These were the second and third offences on the Form 1 to be taken into account on sentence for the firearms offence. The applicant was seen on CCTV footage to be handling the pistol in conjunction with a cloth.

The applicant is an Australian citizen of Lebanese descent. His family are of the Sunni Muslim faith. He is one of four children and had always resided in the family home along with his younger siblings. The sentencing judge concluded that he appeared to have “strong family support which has continued following his arrest”. The applicant attended high school where he was graded in special education classes. He left school in Year 10 and commenced, but did not complete, an arborist course at TAFE. Since he was 19 years old, he has operated his own independent tree lopping business.

The sentencing judge referred to the reports of a psychologist, Ms Amanda White and a psychiatrist, Dr Nielssen. They each noted that the applicant began smoking cannabis when he was aged 15 and he continued this use until he entered custody. Dr Nielssen diagnosed the applicant as having a severe substance use disorder which is in remission since he entered custody. He also diagnosed him as suffering from both an anxiety disorder and persistent depression disorder since he has been in custody.

Ms White concluded that the applicant functioned within the low-average to average range of intelligence. The sentencing judge noted that Ms White examined the applicant at Goulburn and he did not wish to answer any questions regarding his state of mind or actions at the time of the offences.

The sentencing judge noted that the applicant told Dr Nielssen that he supplied the firearm to Mr Alou for financial rather than ideological reasons. The sentencing judge stated that he did not place any weight on that statement for the purpose of making findings referring to R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]-[59]. He stated that he also did not place any weight upon the report of Dr Nielssen on the question of whether the applicant was to any extent the holder of radical or extremist views.

The sentencing judge referred to a number of references tendered from members of the family and persons who knew the applicant in a number of ways. The sentencing judge said that he gave weight to the contents of the references but asserted that the weight to be given to aspects of them is limited as the applicant did not give evidence at the sentencing hearing.

The sentencing judge dealt with the applicant’s conditions in custody. He noted that the applicant did not acknowledge that he has now or at any time held extremist or radicalised views. As will appear below, the sentencing judge did not accept this and approached the sentencing of the applicant on the basis that he had the opportunity to undertake the Proactive Integrated Support Model (PRISM) in custody if he sought to do so. PRISM involves a State-wide multi-disciplinary team providing a custody-based service for offenders identified at risk of radicalisation towards violence extremism.

The sentencing judge noted that Superintendent Poulsen the Senior Assistant Superintendent of the High Risk Management Correctional Centre (HRMCC) at the Goulburn Correctional Complex gave evidence that the applicant is on Stage 2 Level 2 of the Behavioural Management Plan which dictates the sanctions and privileges which apply to him whilst he is held at the HRMCC. He noted that the applicant had been classified as an Extreme High Risk Restricted (EHRR) inmate since 10 December 2015. He noted that the applicant had 16 persons approved as visitors, eight telephone numbers on his phone account, five of them being personal numbers and three being legal contacts and has access to amenities including library books, the legal computer room, basketball courts and sports yards.

The sentencing judge also noted that the applicant had a disciplinary history for offences at the HRMCC involving failure to comply with the Correctional Centre routine, unlawfully using a phone or fax, disobeying a direction and assault in relation to which disciplinary penalties were imposed. The sentencing judge said that he would take into account the prospect that the applicant would serve part or all of his imprisonment in the more confined custodial setting at the HRMCC.

The sentencing judge summarised the facts in the manner I have referred to above. He pointed out at the outset of his remarks that the applicant’s offences differed in significant respects from the offence for which Mr Alou was sentenced.

The sentencing judge reminded himself that in resolving disputed facts, the Court may only make a finding of fact adverse to the applicant if satisfied beyond reasonable doubt of that fact. He noted that some disputes of fact may not be capable of resolution in the way that goes either to increase or decrease the sentence that is to be imposed. This was particularly relevant on the issue of whether, as the applicant contended, the firearm was supplied to Mr Alou for financial gain, or as the Crown contended, supplied for free.

The primary judge referred to the murder of Mr Cheng and the terrorist incident which took place at the Lindt Café on 15 and 16 December 2014. In that context, he accepted the submission that it gave rise to an increased level of alert in the community concerning the possibility of a terrorist attack and the use of firearms in such an incident. He stated that like every other member of the Australian population, it may be taken that the applicant heard of what happened at the Lindt Café and that his preparedness to supply a pistol some 10 months later which was to be used in a terrorist attack must be considered against this background.

The sentencing judge noted that at the time of the supply of the revolver to Mr Alou the applicant was subject to an FPO served on him by a police officer on 28 October 2014. He stated that the FPO was made upon the basis that the applicant was not fit in the public interest to have possession of a firearm.

The sentencing judge also referred to a statement of Constable Chantelle Hannah which assumes some significance in the appeal. He noted that in her statement she outlined her contact with the applicant over a period of time. She said that she first observed him in the course of her duties on 28 February 2015, stating that when dealing with him over a period of time “he remained charming and would often ask to marry me” and he “would also ask me questions about my personal life attempting to gather information about me” with this being “a regular occurrence”.

Constable Hannah observed that when she first met the applicant and for some time after, he “wore a short shaved-like haircut and stubble on his face” without a beard and would often be dressed in tracksuit pants and a t-shirt or a yellow high-visibility trade shirt. She stated that she spoke to him in the Guildford area in 2015 and he was dressed in a high-visibility trade shirt and stated that he was working in the family business as a tree lopper.

Constable Hannah stated that at one point, the applicant approached her as she completed duties, seeking to strike up a conversation with her. Constable Hannah stated that she became quite concerned by his actions and behaviour and reported the incident to an Inspector of police.

Constable Hannah stated that she “noted a very obvious change in his appearance and demeanour in July 2015”. The sentencing judge placed particular emphasis on Constable Hannah’s account of an incident which occurred at about 12.20am on Saturday, 5 July 2015, whilst she and another police officer were conducting an FPO search concerning the applicant at his home. The sentencing judge stated that given the significance of the event on sentence, it was appropriate to set out Constable Hannah’s complete account of it in her statement. The account was in the following terms:

The sentencing judge noted that Constable Hannah stated that at a later time, the applicant’s appearance remained the same as it had been on 5 July 2015, noting that he still had a full beard, although he was not wearing a traditional Islamic dress pant.

The sentencing judge stated that the applicant’s “past jocular approach to Constable Hannah was replaced by serious words and behaviour which reflected a change” in the applicant as if he had been influenced in his beliefs concerning Islamic State. He concluded that his conduct indicated “at least a level of sympathy for Islamic State at a time three months before his offences on 1 and 2 October 2015”.

The sentencing judge commented that Mr Alou appeared to have been “tight-lipped in his dealings with Person X2 and Person X3 concerning the purpose for which he needed a firearm”. He stated that unlike Person X2 and Person X3, the applicant was “ready, willing and able to supply the revolver to him”. He stated that he was satisfied that “Mr Alou did reveal at least some information” to the applicant in his dealings with him on 2 October 2015 as to the use expected to be made of the revolver.

The sentencing judge’s ultimate conclusion on that issue at [105] was that he was “well satisfied” that, during the protracted conversations at various locations, the applicant “learned a good deal about what was to happen with the revolver” which he provided to Mr Alou, “a radicalised and extremist supporter of Islamic State who was moving single-mindedly to the commission of a terrorist offence that day using the revolver”. He stated that he was satisfied to the criminal standard that the revolver was loaded when the applicant handed it to Mr Alou. He said that it was the applicant “who provided the loaded weapon ready for immediate use in a terrorist act”.

The sentencing judge stated that the question of the applicant’s motive to commit the offences, and his knowledge or belief as to what use was to be made of the revolver, were matters which bear upon the objective gravity of the offences. He noted that the applicant’s pleas of guilty constituted admissions by him of the essential element of the offences, however that it remained a matter for him to make findings of fact by reference to evidence adduced by the parties at the sentencing hearing.

The sentencing judge noted that there was no electronic evidence in which the applicant expressed radical or extremist views supportive of Islamic State. He stated at [146] that the context of the applicant’s interaction with Mr Alou related to Mr Alou’s attempts to obtain a firearm, which had been unsuccessful with respect to other persons he had contacted before he was put in touch with the applicant. He stated, however, that there were a number of features which bear upon the issue.

The sentencing judge stated that the first of these was that the applicant’s interaction with Constable Hannah prior to 5 July 2015 appeared to be friendly and humorous, but his appearance, manner and words appeared different to Constable Hannah on that day. He stated that he was satisfied beyond reasonable doubt that the events described by Constable Hannah occurred on 5 July 2015 and were “reflective of a level of sympathy for a more fundamentalist view of Islam … in the form of Islamic State”. He stated that he detected no humour in the account and that for the applicant “to act in this way concerning a very serious topic” supported the view that “he actually held those beliefs at that time”.

The sentencing judge also referred to the fact that the applicant made calls to Mr Alou from a public telephone and met at Jones Park. He stated that he found the conversations, involving “the use of oblique language”, and the fact that physical meetings between them occurred in unusual places, “were designed to minimise surveillance by the authorities”. In particular, he noted that the disputed conversation between the two men in Mr Alou’s vehicle (see [26] above) included the men discussing “the big one” with it being said at one stage “this is bad man”. He stated that he accepted that this was a conversation between the two men with respect to the supply of a firearm by the applicant to Mr Alou. He stated at [154] that it required “no substantial leap of faith” to find this conversation referred, to some degree, to the use to be made of the revolver.

The sentencing judge stated that the fact that the applicant was prepared to speak to Mr Alou in that way supports the suggestion that the conversations “were likely to involve a level of disclosure by [Mr] Alou with respect to what was on foot at the time – being his strong desire to obtain a firearm to be used in a terrorist attack”. He stated that the supply of the revolver by the applicant “could have occurred quickly and simply by the handing over of the item to [Mr] Alou without any accompanying conversation, let alone the protracted and circuitous process of meeting in different places over a period of about one-and-a-half hours”, with the applicant using different means of transport to get to the meetings.

In that context, the sentencing judge concluded at [158] that “the inference ought be drawn” that, in the course of these interactions of 2 October 2015, Mr Alou disclosed to the applicant that the revolver was to be used for the purpose of a terrorist attack. He stated at [159] that in reaching that conclusion, he “kept in mind the almost single-minded or fixated purpose” which Mr Alou sought to achieve that very day, and the unlikelihood that he would withhold some features of what was planned in his various meetings and conversations with the applicant which extended for some 13 minutes and 21 seconds.

The sentencing judge noted the Crown submission that the applicant supplied the revolver to Mr Alou for free. He stated at [166] that he was unable to make a finding one way or the other on this aspect.

In summarising his conclusions, the sentencing judge again noted that the admission of the element of recklessness in relation to the terrorist offence involved an admission that the applicant was “aware of a substantial risk that the revolver would be used in the commission of a terrorist act” and that, “it was unjustifiable for him to take that risk”. He stated that if the Court found that the applicant was “at least sympathetic” to the extremist views of Mr Alou, that “would elevate the objective gravity” of the applicant’s offence, even if the Court was not able to make a finding that the revolver was supplied for free. He also stated that if the supply of the pistol was to be used for a criminal purpose and the supplier knew or believed or was reckless as to this aspect, the objective gravity of the firearms offence would be elevated by this additional feature.

In dealing with these issues he stated that first he was satisfied that the applicant was known to be a person with access to firearms, and a preparedness to supply them at the time he supplied the pistol to Mr Alou on 2 October. He said secondly that he was satisfied that the applicant had on 1 and 2 October 2015 “at least some sympathy for the fundamentalist religious views of [Mr] Alou”. He stated at [177] that the applicant was prepared to supply a revolver to Mr Alou in circumstances “where he had a strong inkling (at least) from his conversation with [Mr] Alou, that the loaded pistol was to be used very soon thereafter in a violent attack in Sydney committed for terrorist purposes”.

The sentencing judge stated at [178] that the applicant supplied to Mr Alou “a loaded revolver which was capable of being used immediately, and was actually used less than two hours later to murder Mr Cheng on the street in Parramatta”. The sentencing judge stated that he was satisfied that by the time that he supplied the revolver to Mr Alou, the applicant “had a good idea that the firearm was to be used soon thereafter for a terrorist attack in Sydney committed in the name of Islamic State”. He stated that the applicant had acquired this level of understanding from his various discussions with Mr Alou at different locations during the course of 2 October 2015.

The sentencing judge also found at [179] that a “combination of sympathy for [Mr] Alou’s cause, and the pragmatic activities and motivations of a firearm supplier, came together” for the applicant to supply the revolver to Mr Alou “with a solid idea on his part as to what was to be done with it soon after”.

The sentencing judge stated at [180] that he was “satisfied beyond reasonable doubt that findings to this effect should be made”. He stated that “[t]hese findings go beyond the admission of bare recklessness” implicit in the applicant’s plea of guilty to the terrorist offence and served to “aggravate the objective gravity of both of the offences contained in the indictment”. He described the offences as “very serious examples of crimes committed under the relevant Commonwealth and State provisions”.

Referring to the judgment of Whealy J in R v Mulahalilovic [2009] NSWSC 1010 at [48], the sentencing judge noted that “[t]he offence under s 101.4(2) [of the Criminal Code] is concerned with actions even where the contemplated terrorist act has not come to fruition or fulfilment”. He noted that Whealy J had observed that punishment of terrorists, deterrence, denunciation and protection of the community are important features on sentencing for this class of offence.

The sentencing judge also stated at [190] that “[t]he objective gravity of a s 101.4(2) offence is to be determined by reference not only to the ‘thing’ that was possessed, but also the nature of the terrorist act and the recklessness of the Offender to the connection of the ‘thing’ to the preparation of the terrorist act”. He stated that he accepted “the Crown submission that the quality of the ‘thing’ … when considered together with the circumstances in which it was provided” to Mr Alou, “its temporal proximity to the terrorist act” and the applicant’s “admission as to his recklessness and his connection between the ‘thing’ and the preparation for a terrorist act, places this offence at a very high level of seriousness”. He noted that the revolver was capable of being used to kill and was in fact used for that purpose.

The sentencing judge stated at [197] the fact that the applicant’s “involvement in the s 101.4(2) offence occupied a period of about 24 hours only” did not operate in a significant way in his favour on sentence. He accepted the Crown submission that the urgency surrounding Mr Alou’s desire to obtain the revolver operated to place the applicant on greater notice of an imminent terrorist attack. He also accepted that the circumstances in which the revolver was transferred to Mr Alou added to the objective gravity, referring to the covert nature of meetings between the applicant and Mr Alou, the use of counter-surveillance techniques and the Islamic appearance of clothing of Mr Alou and one of his companions.

The sentencing judge emphasised at [199] that he kept in mind that the applicant was not charged with an offence under s 101.4(1) of the Criminal Code where the mental element is knowledge and the maximum penalty is imprisonment for 15 years.

In relation to the firearms offence, the sentencing judge stated that “[f]irearms offences are an increasing threat to the community” and that in those circumstances, “general deterrence is of great importance”. In that context, he noted the standard non-parole period of 10 years which he said “is to be taken into account without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence”.

The sentencing judge stated that the fact the revolver was loaded bears upon objective seriousness. He stated that it would be necessary to take into account the degree of overlap between the terrorist offence and the firearms offence so that there is not double counting in sentencing the applicant.

His Honour concluded at [212] that the applicant supplied the revolver “in circumstances where he anticipated that it would be used to cause death or serious injury to one or more members of the public”. He stated that if the applicant had refused to supply the revolver, “the terrorist attack could not have taken place as it did on that day”. He described the offence at [213] as “an extraordinarily grave s 51(1A) offence” lying in “the most serious range”.

The sentencing judge noted that the first Form 1 offence related to the applicant’s possession of the revolver on 2 October 2015 when he was subject to the FPO so “his possession of the revolver on that day involved further significant criminality”.

In relation to the offences on 6 October 2015 he stated the applicant possessed the pistol for an extended period on that evening. He stated that “[h]aving regard to the totality of evidence adduced at the sentencing hearing, it may be concluded readily” that the applicant possessed the firearm “for a sinister purpose”. He noted that the events of 6 October 2015 occurred when the applicant was “well aware” that the revolver he supplied to Mr Alou four days earlier was used in the terrorist attack.

The sentencing judge referred to the applicant’s prior criminal history noting in particular that on 16 September 2015 he appeared before the Fairfield Local Court and was fined $1,500 for an offence of assaulting an officer in the execution of his duty. He stated that at the time of the commission of the present offences, the applicant was subject to the FPO and appeared before a criminal court just two weeks earlier with respect to his commission of a criminal offence.

The sentencing judge also noted that after the offences the subject of the present appeal, the applicant was sentenced to four offences of being a witness who refused or failed to answer questions at a Crime Commission hearing contrary to s 25(2) of the Crime Commission Act 2012 (NSW). He stated that was relevant to his prospects of rehabilitation and also the issue of totality, concurrence and accumulation of sentences to be imposed on him.

The sentencing judge dealt with the applicant’s subjective circumstances and the applicant’s conditions in custody in the manner in which I have referred above. He stated that he was satisfied that the appropriate discount for the utilitarian value of the applicant’s pleas was 15 percent in respect of both offences.

The sentencing judge stated that as the applicant had not given evidence at the sentencing hearing, the Court had not been able to make an assessment as to his claimed contrition and remorse. In that context, he referred to the further offences of refusing or failing to answer questions before the NSW Crime Commission and disciplinary offences which had occurred whilst in custody.

The sentencing judge concluded at [287] that upon the evidence adduced at the sentencing hearing, he was not persuaded the applicant had demonstrated contrition and remorse for the offences. He stated that the applicant’s prospects of rehabilitation needed to be considered in light of his prior criminal history for offences of some seriousness. He concluded at [293] that he was not persuaded that the applicant had good prospects of rehabilitation. He said that the position could not be put any higher than that there is some prospect of rehabilitation in the future, but much would depend upon steps taken by the applicant whilst in custody over the long term to allow for a more informed view of his prospects.

In dealing with particular matters required to be taken into account under s 16A of the Crimes Act 1914 (Cth) and s 3A and s 21A of the Crimes (Sentencing Procedure) Act, the sentencing judge expressed the view at [308] that “personal deterrence remains a very significant issue on sentence in this case” and that the Court must have regard to general deterrence. He stated that the youth of the applicant, “whilst generally relevant, is to be given limited weight in light of the seriousness of the offences and the absence of any causal link between his age and his criminal conduct”.

The sentencing judge stated at [317] that it was common ground that the applicant’s criminal conduct with respect to the terrorist offence overlaps, to an extent, with his offending conduct under the firearms offence “so that double punishment for acts constituting common elements is to be avoided”.

His Honour stated at [321] that “a degree of accumulation is necessary in order to reflect the total criminality” of the applicant’s conduct in the commission of the two offences on the indictment “because the sentence for each individual offence cannot comprehend and reflect the criminality of the overall offending”.

His Honour noted that there also had to be a degree of accumulation in respect of the Crime Commission Act offences although there was some general overlap between their subject matter and the subject matter of the present offences. Noting that there was a non-parole period of 5 months in respect of those offences, he accumulated the sentence which he imposed by a period of 4 months so the first sentence to be imposed was to commence on 15 February 2016.

He stated that it was appropriate that the sentence for the terrorist offence operates first in time with a sentence for the firearms offence to be accumulated upon it. He stated that that meant that the non-parole period for the firearms offence would be the operative non-parole period. He made “a limited finding of special circumstances” to take into account the effect of the accumulation of the sentences.

In those circumstances, the sentencing judge imposed the sentences to which I have referred above.

Because ground 7 of the grounds of appeal impacts on a number of the other grounds, it is convenient to deal with it at the outset.

The statement of Constable Hannah was admitted after negotiations between representatives of the Crown and the applicant. As a result of these negotiations, the statement, excluding paragraphs 20 to 27 and all the annexures, was admitted. Constable Hannah was not required for cross-examination.

The incident on which the sentencing judge placed particular reliance in concluding at [38] that the applicant had “at least a level of sympathy for Islamic State” was said to be what occurred on 5 July 2015. In paragraph 14 of her statement, Constable Hannah described the applicant’s conduct to her prior to the incident in the following terms:

As I indicated Annexure E was not tendered at the hearing. However, the report which is Annexure E was dated 24 July 2015, that is after the incident described by Constable Hannah on which the sentencing judge placed reliance. The report contained the following information:

The evidence filed in support of the admission of Annexure E included an affidavit affirmed by junior counsel for the applicant in the sentencing proceedings. He stated that when he reviewed the affidavit he was not cognisant that Annexure E related to the incident described in paragraph 14 of Constable Hannah’s statement and that he could not recall any forensic advantage in leaving out the date of the incident described in Annexure E. He stated that a forensic decision was made to exclude the annexures but that decision was made without being aware that Annexure E disclosed the date of the incident described by Constable Hannah at paragraph 14 of her statement as occurring on 24 July. He said that had he been aware of that matter, he would have brought it to the attention of senior counsel. There was also in evidence an email from senior counsel for the applicant in the Court below to the applicant’s solicitor. It stated the following:

It should be noted the Crown ultimately did not object to the tender of Annexure E at the hearing of the appeal.

Prior to dealing with ground 7, senior counsel for the applicant put some general propositions which he stated were relevant to all of the grounds. He pointed to the fact that s 101.4(2) of the Criminal Code did not actually require there be a terrorist act or there be an attempt to commit one but rather what is relevant is possession of the thing and the nature of the connection as explained in Benbrika v R (2010) 29 VR 593; [2010] VSCA 281.

He submitted that conceptual difficulties arose in assessing the criminality of the applicant by reason of the fact that the terrorist act took place. He pointed out that the applicant was removed from the commission of the offence, particularly when he was charged under s 101.4(2) where the mental element is recklessness compared to the offence under s 101.4(1) where the mental element is knowledge.

In dealing with ground 7, senior counsel for the applicant referred to the judge’s reference to the statement of Constable Hannah and stated the sentencing judge was misled (not deliberately) as to the sequence. He referred to the conclusion of the sentencing judge to which I have referred at [59] and [67] above to the effect that the applicant had at least some sympathy for the extreme views of Mr Alou.

He submitted that even on the evidence before the sentencing judge, the finding was “finely balanced” and once it was shown the reasoning in this regard was incorrect, his Honour should not have been satisfied beyond reasonable doubt on this issue.

Senior counsel submitted referring to Tsiakas v R [2015] NSWCCA 187 at [41]-[45] that the relevant question was whether, objectively speaking, there had been a miscarriage of justice. He submitted that there was a miscarriage of justice in the present case, emphasising that there was no forensic advantage from the omission of Annexure E to Constable Hannah’s statement.

In answer to a question from the bench, he emphasised that Annexure E related to the conversation referred to in paragraph 14 of Constable Hannah’s statement. He accepted the annexure stated that the applicant was uncooperative with the police but said that the applicant had “an antagonistic relationship with the police, at least from time to time”.

The Crown submitted that the omission of the annexure to Constable Hannah’s statement was not so compelling nor significant as to give rise to a miscarriage of justice. He submitted that the finding of the sentencing judge to which I have referred at [59] above, was limited to a change in attitude and appearance on the particular day in question. He submitted that the sentencing judge could still be satisfied that the applicant had the same attitude as at the date of the offence because proffering that his beard was “for ISIS” is consistent and supportive of the finding that he had “some sympathy” for Islamic State. He noted that the sentencing judge expressly compared the applicant to Mr Alou stating that there was nothing found on the applicant’s phone or computer to show he was an extremist. He said the finding that the applicant had “at least some sympathy” for Islamic State was “still available and appropriate”.

The Crown submitted that the sentencing judge was entitled to reject the submission that the remark by the applicant, “my beard is for ISIS”, was some attempt at humour and entitled to take the whole of Constable Hannah’s statement into account, including the totality of the description of the events of 5 July. He submitted that it followed that the sentencing judge was entitled to find it was “not a misconceived sense of humour but … that there was an amount of aggression, anger and physical conduct” consistent with the remark being one made with sincerity and seriousness. He submitted that there was no subsequent disavowal of the “my beard is for ISIS” comment.

The submissions in respect of ground 1 generally cover the same ground as ground 7. However, in dealing with the applicant’s beard, the applicant stated in his written submissions that on the day of the offence, CCTV footage showed the applicant with a “neat close cropped beard” and wearing sports clothes. However at the hearing, senior counsel for the applicant conceded that the beard was “a full beard” whilst submitting that the applicant’s clothing and beard could not tell you anything about any particular form of ideology. It was also submitted that the applicant was entitled to be offended by remarks about his clothing and its cultural affiliations.

The Crown, in their written submissions, emphasised the limited nature of the factual finding made by the sentencing judge, namely that the applicant had “some sympathy” for Islamic State, not that the applicant was an adherent or was himself a terrorist. It was also submitted that the CCTV footage of 2 October 2015 and 6 October 2015 both established that the applicant then had “a full and bushy beard”.

The Crown also emphasised that there was no sworn affidavit from the applicant to contradict or contextualise his remark as to his beard being “for ISIS”.

There are three matters which should be noted at the outset. First, the Crown did not object to the tender of Annexure E on the application, thus there is no need to consider, at least on the question of admissibility, whether it contains compelling material the significance of which was not appreciated at the sentencing hearing: see Tsiakas v R at [44] applying by analogy Nudd v R [2006] HCA 9; 80 ALJR 614 at [24]; TKJW v R (2002) 212 CLR 124; [2002] HCA 46 at [31]-[33]; [79]; [97]; [101] and [103]-[108]; see also Pym v R [2014] NSWCCA 182 at [75].

The second matter is this. Once Annexure E was admitted, it was apparent that the sentencing judge was misled through no fault of his own into misstating the facts in the sense described in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. It follows that the Court is entitled and indeed obliged to review his conclusion that the applicant was sympathetic towards Islamic State and was motivated to commit the offence in part because of such sympathy.

The third and most important matter is that it does not automatically follow from what I have described as a misstatement of facts that the conclusion reached by the sentencing judge was erroneous.

The sentencing judge concluded first that the events described by Constable Hannah were “reflective of a level of sympathy for a more fundamentalist view of Islam” and that he maintained that sympathy on 1 and 2 October (see [59] and [67] above). He stated importantly that formed part of the motivation to supply the revolver (see [67] above) which aggravated the seriousness of the offence. It was not disputed that for the sentencing judge to reach that conclusion, it was necessary for him to be satisfied beyond reasonable doubt that the applicant had such sympathy and was motivated in part by such sympathy to supply the revolver.

The significance of the evidence of Constable Hannah once Annexure E is included is that the conduct referred to in paragraph 14 of her statement occurred after the incident on 5 July on which the sentencing judge placed considerable reliance. Viewed in that light, the incident on 5 July could at least possibly be seen as an isolated incident rather than demonstrating a change of attitude on behalf of the applicant.

Apart from the evidence of Constable Hannah, there were a number of matters which point both ways on the question. First, there was nothing to suggest at the time of the incident of 24 July that the applicant demonstrated any support for Islamic State. Second, although he continued to wear the beard referred to by Constable Hannah in her statement and by the sentencing judge in his judgment, at the time of the negotiations leading to the supply of the firearms, he was wearing sports clothes and not the traditional Islamic robe or Islamic form of dress, being something on which the sentencing judge placed reliance. Third, there was no other evidence which indicated the applicant supported or had sympathy for Islamic State.

There are matters pointing the other way. First, as the Crown pointed out, the applicant’s comment of 5 July that his beard was “for ISIS”, irrespective of the subsequent events could be seen to demonstrate some sympathy for Islamic State. Second, the surreptitious nature of the meetings between the applicant and Mr Alou and particularly the conversation in the car, including the comments “the big one” and “this is bad man” (see [26] above) suggest at least that the applicant was not deterred from supplying the revolver by the knowledge of the possibility that it could be used in a terrorist attack. Further, there is no doubt that it could be inferred that the applicant was aware not only of the substantial risk that the revolver could be used in a terrorist attack, but also of the risk that it could be used in a terrorist attack in support of Islamic State.

Having taken all these matters into account, I am not satisfied beyond reasonable doubt that the applicant’s supply of the revolver was motivated in part by his sympathy for Islamic State. Just as the sentencing judge was unable to determine whether or not the revolver was supplied for free or financial reward, I am unable to reach the requisite degree of satisfaction that the supply was motivated by sympathy for Islamic State.

It follows that these grounds, to the extent that they deal with the applicant’s motivation to supply the revolver, have been made out.

The applicant acknowledged that by his plea he was aware of a substantial risk that the revolver was connected with preparation for a terrorist attack. It was also accepted that by virtue of s 101.4(5) the plea had the effect of accepting that possession of the ‘thing’ was intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

The applicant pointed out that in the course of the remarks on sentence, the sentencing judge made a number of references to what the applicant was told by Mr Alou in the context of the applicant supplying Mr Alou with a gun.

The applicant referred to the remarks of the sentencing judge to which I have referred at [55] above. He stated that whilst the fact that Mr Alou was “tight-lipped” in his dealings with Person X2 and Person X3, that could not support an inference that Mr Alou gave the applicant any information as to the expected use of the revolver. He also submitted that the sentencing judge did not lay any foundation for his conclusion to which I have referred at [61] above.

In written submissions, the applicant also referred to the reasoning and conclusion of the sentencing judge to which I have referred at [82] above (see sentencing judgment [158]-[159]). The applicant submitted that this conclusion was predicated first on the assumption that the negotiations for the gun would have been conducted efficiently. He submitted that there was also an assumption that Mr Alou not only disclosed his purpose, but was honest with the applicant in doing so. He submitted that neither assumption was warranted. It was submitted that there may be many reasons for a person in the position of the applicant to spend more time than absolutely necessary during the negotiations and that there was no evidence to suggest that Mr Alou would be candid with the applicant. It was submitted that in these circumstances, there was no basis for the sentencing judge’s finding.

Senior counsel for the applicant referred to the finding concerning the conversation in the motor vehicle to which I have referred at [26] above. He submitted that there was a great deal of difficulty in extracting much at all from it and it was not possible, at least from the words of the conversation, to obtain the context. He referred to the reference by the sentencing judge to the words “the big one” and “this is bad man”, stating that it was not clear whether these words were used by Mr Alou or the applicant. He submitted that if it was the applicant who said “this is bad man”, it did not reflect upon the applicant at all. He accepted that because the gun was loaded it was an available inference that it would be used. He also accepted that the strength of his argument “lies as to the actual purpose of the use rather than the use itself”, agreeing that it may have been open to the sentencing judge to find that Mr Alou disclosed to the applicant the revolver was to be used, but not that the purpose of its use was a terrorist attack. He accepted that the applicant’s admission of recklessness in relation to the terrorist offence carried over to the firearms offence.

The Crown submitted that the necessary knowledge of the substantial risk for the purpose of s 101.4(2)(c) must be adduced from things said by Mr Alou and the circumstances of the interaction between the applicant and Mr Alou, including the urgency and degree of interchange which went beyond the minimum which was necessary for the supply of the gun. He submitted that this supported the inference that Mr Alou had disclosed his purpose to the applicant.

It was submitted that given the ‘thing’ was a readily concealable revolver, it also follows inexorably that the purpose was to cause death or serious injury. He submitted that the broader definition of ‘terrorist attack’ encompassing property damage, risks to public health and the like had no application to the facts of this case. It was submitted that the extent and urgency of the dealings between Mr Alou and the applicant gave further weight to the inference that Mr Alou made the applicant aware, in general terms, of the use to which the firearm was to be put.

At the hearing, the Crown submitted that although the sentencing judge came “perilously close to it”, he did not find the applicant knew of the precise use to which the gun was to be put. He submitted rather that the sentencing judge found a high degree of recklessness. He submitted that finding arose from the number of interactions and attempted interactions to which I have referred to at [16]-[31] above, the attempt to make telephone contact from a public telephone booth, the meetings at Jones Park and Merrylands and the conversation in the motor vehicle. The Crown submitted that the sentencing judge was entitled to find a high degree of recklessness in those circumstances.

Three matters should be considered at the outset in dealing with this ground. First, as the applicant conceded the effect of the plea included, in effect, an admission of the matters referred to in s 104.1(5) of the Criminal Code, namely that the possession of the revolver was intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act: see Benbrika v R at [321]-[323].

The second matter is that the sentencing judge was well aware that the applicant was not charged with the more serious offence in s 101.4(1) where the mental element is knowledge: see [72] above.

The third matter is that it is necessary to have regard to the precise findings made by the sentencing judge. I have set out the first finding at [55] above, namely that Mr Alou revealed “some information” to the applicant as to the use expected to be made of the revolver. The second finding, as set out at [56] above, is that the sentencing judge reached the conclusion that during the protracted conversations which were held, the applicant “learned a good deal about what was to happen with the revolver”. The third set of findings are those set out at [62] above. In this paragraph, the sentencing judge made a finding that Mr Alou disclosed to the applicant that the revolver was to be used for the purpose of a terrorist attack. However, the sentencing judge subsequently stated that the applicant’s plea involved an admission that he was “aware of a substantial risk that the revolver would be used in the commission of a terrorist act”: see [64] above.

In these circumstances, it seems to me that what the sentencing judge was doing was emphasising the very high degree of recklessness involved in the present case and that the conversations the applicant had with Mr Alou revealed to him that there was a very high risk that the loaded revolver would be used in a terrorist attack and it was quite unjustifiable to take that risk. The sentencing judge was fully entitled to reach that conclusion from the surreptitious nature of the conversations which took place between the applicant and Mr Alou and particularly in the conversation in the motor vehicle to which I have referred at [26] above. His Honour’s findings in R v Alou (No 4) at [101]-[104] (see [61] above), which were accepted as correct by the applicant in the present proceedings, provide powerful support for this conclusion, particularly having regard to the comments “the big one” and “this is bad man”.

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

The applicant referred to the fact that in dealing with the sentence for the terrorist offence, the sentencing judge was aware of the limitations in sentencing for an offence under s 101.4(2) having regard to the offence in s 101.4(1). He referred to the statement by the sentencing judge at [199] to which I have referred at [72] above.

In his written submissions, the applicant contended that the sentencing judge exercised “no similar caution” in relation to the firearms offence, referring to his conclusion at [212] and [213] (see [75] above).

The applicant submitted that supplying a revolver, knowing it would be used to kill or inflict grievous bodily harm, would make the person liable as an accessory before the fact to murder (which carries a maximum penalty of life imprisonment) or an offence of accessory to wounding with intent (which carries a maximum penalty of 25 years imprisonment) or an offence of accessory to discharging a firearm with intent (which also carries a maximum penalty of 25 years imprisonment). He submitted, referring to Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 and Blundell v R [2019] NSWCCA 3, that it was not necessary to have precise knowledge of the actual crime.

It was submitted in those circumstances that for the sentencing judge to have regard to the fact that the applicant anticipated that the revolver “would be used to cause death or serious injury” was to have regard to a matter which warranted conviction for more serious offences contrary to the principle in R v De Simoni (1981) 147 CLR 383 at 389; [1981] HCA 31.

At the hearing, senior counsel for the applicant accepted that the admission of recklessness carried over to the firearms offence. He submitted that the sentencing judge was entitled to look at the surrounding circumstances but there was a difficulty if that would take you into other offences, including murder. He submitted that although the sentencing judge was careful to limit what he took into account in sentencing for the terrorist offence, he did not do so on the firearms offence.

He submitted that the problem was twofold. First, it was not open to the sentencing judge to make the findings he did with respect to the applicant’s state of mind but second, having done so in respect of ground 3, it made the applicant guilty of more serious offences for which he had not been convicted, namely the offence of murder or the offence under s 101.4(1) read with s 11.2 of the Criminal Code. He also submitted that once the firearms offence was removed from the terrorist act, “a whole word of possibilities” as to the use of the firearm is opened up.

The Crown in its written submissions submitted that in assessing the objective gravity of the offence it was entirely orthodox to consider the circumstances in which the revolver was supplied. It was submitted that the fact that the sentencing judge stated that the firearms offence was “grave” and at the “most serious range of offending” was unremarkable and does not mean that the sentencing judge acted contrary to the principle in R v De Simoni.

At the hearing, the Crown stated that the finding of the sentencing judge at [212] (see [75] above) did not refer to the terrorist offence but rather focused on the firearms offence. It was submitted that it was difficult to draw any inference other than the supply of a loaded firearm in those circumstances was to be used to cause death or serious injury.

The passages complained of in his Honour’s judgment at [212]-[213] are said by the applicant to amount to a conclusion that he knew that the revolver would be used to cause death or serious injury.

The applicant correctly accepted that recklessness would not be sufficient to convict the applicant as an accessory before the fact to any crime that Mr Alou may have subsequently committed using the revolver: Giorgianni v The Queen at 487, 506: GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [19].

However, contrary to the applicant’s submission, I do not think it is correct to say that it is not necessary to have knowledge of the actual crime (as distinct from its consequences) to constitute a person as an accessory. In Giorgianni the need for knowledge of all essential facts of the crime was emphasised by all members of the Court: Gibbs CJ at 479, 482; Mason J at 495; Wilson Deane and Dawson JJ at 500, 505. The distinction between knowledge of the essential facts of the offence and knowledge of its consequences was explained by Mason J in the following passage at 495:

The distinction was elaborated on by the plurality (Mason ACJ, Wilson, Deane and Dawson JJ) in Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65. The plurality explained the principle as follows at 667:

In the present case, it follows that it was not sufficient to make the applicant an accessory to any crime that Mr Alou might commit using the revolver merely because he contemplated that it would be used to kill or injure a member or members of the public. This is because the applicant did not know of the essential facts of any crime that Mr Alou may have committed much less the one he in fact committed.

Thus dealing with the firearms offence in isolation, even if by saying that the applicant “anticipated” that the revolver would be used to cause death or serious injury to a member or members of the public that would not of itself infringe the principle in R v De Simoni at 389.

Further, although such a finding would have rendered the applicant liable for the offence contained in s 101.4(1) of the Criminal Code. on its face it would not offend the De Simoni principle as the maximum penalty for that offence was 15 years which is less than the maximum penalty for the firearms offence.

Nevertheless, it would seem at least incongruous that the applicant be sentenced for the terrorist offence on a different basis from that for which he was sentenced on for the firearms offence. Whether or not it would amount to an error of law need not be determined as, in my view, the sentencing judge did not adopt this course.

The sentencing judge, in the paragraph complained of, used the words the applicant “anticipated” the manner in which the gun would be used, rather than he knew the manner in which it would be used. The word “anticipated” was, in my view, used to again emphasise what his Honour concluded, namely that there was a very high degree of recklessness involved in the offence.

It follows that this ground has not been made out.

The applicant in his written submissions submitted that the structure of the sentences did not reflect the overall criminality. It was submitted that the gravamen of the possession of the ‘thing’ was the possession of a revolver that was to be supplied to Mr Alou. It was submitted that the possession covered the short period before it was supplied to Mr Alou and ended at the moment of supply. It was submitted that the “real mischief” reached fruition by the supply of the revolver and, therefore, the sentence for the firearms offence was “capable of comprehending the entire criminality” of the terrorist offence, which he submitted was “the determinative issue, when determining matters of accumulation and concurrency”, referring to Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [37] and Cahyadi v R [2007] NSWCCA 1 at [27].

It was submitted that given the sentencing judge’s finding that the firearms offence was aggravated by the fact that the applicant “supplied the revolver … in circumstances where he anticipated that it would be used to cause death or serious injury to one or more members of the public”, the criminality of the terrorist offence was in fact subsumed almost entirely by the firearms offence. It was noted that to the extent that the sentencing judge’s finding went beyond recklessness given the maximum penalty for the supply offence was 20 years, the sentencing judge was not constrained by the principle in De Simoni. In these circumstances, little if any accumulation was warranted. The applicant submitted that the relevant principles were set out by Adams J in Redfern v R [2012] NSWCCA 178; (2012) 228 A Crim R 56 at [17].

At the hearing, the applicant, referring to Pearce v R (1998) 194 CLR 610; [1998] HCA 57 at [40], submitted that ultimately, when passing sentence it is necessary to try to “get at the heart of the criminality”. He submitted in the present case that the criminality of the s 101.4 offence lies in the contemplated supply.

Referring to Benbrika v R at [315], he stated that the ‘thing’ is connected by virtue of the use to which it was to be put. He submitted that in the present case, irrespective of how long the applicant had the weapon, he could not have had the necessary connection until Mr Alou approached him.

He submitted that in these circumstances, there really was a “complete coincidence between the two matters”. He submitted that irrespective of the terrorist offence, if the firearm was supplied by a person who was known to be going to use it for a terrorist purpose, it would be regarded as an offence of a great deal of seriousness.

In his written submissions, the Crown pointed out that the sentencing judge took into account the overlapping nature of the offences in allowing for 3 years and 6 months accumulation. He submitted that the applicant’s contention proceeds on the assumption that the firearms offence is “capable of comprehending the entire criminality”. He submitted that the offences had different elements and involved different conduct. It was submitted that the substantive difference between the two offences was that one offence was a terrorist offence in respect of which the Courts have repeatedly stated that substantial sentences are warranted. He stated that the reason for this was explained in R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691 at [91]-[92], on appeal Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 at [79], see also R v Barot (Dhiren) [2007] EWCA Crim 1119 at [45]. It was submitted that once this was taken into account, no error was established.

At the hearing, the Crown contended that the terrorist offence could have been committed without the weapon being supplied. He accepted, however, it would have to be shown that the applicant obtained the weapon for the purpose of supplying it to a terrorist organisation, or agreed, formally or informally, to supply it to a terrorist organisation.

The approach in sentencing so far as it concerns accumulation and totality was succinctly summarised by Gageler, Nettle and Gordon JJ in Nguyen v The Queen at [64]:

As was pointed out in that paragraph, the degree of accumulation in a particular case is something on which the minds of sentencing judges may differ.

The primary submission of the applicant in the present case was that the totality of the criminality for the terrorist offence was encompassed by the firearms offence given the fact that the sentencing judge concluded that the firearms offence was aggravated by reason of the fact that the applicant “anticipated” that the revolver would be used to cause death or serious injury. The applicant equated the position to that considered by Adams J in Redfern v R at [17] where his Honour concluded in a case where the applicant was charged with supplying cocaine that the totality of the applicant’s criminality was “not increased by the fact that he had in his possession the money paid to him for the supply of the drugs”, which was the subject of the offence of dealing with the proceeds of crime contained on a Form 1.

I do not think that this submission properly takes into account the criminality of the terrorist offence. As was pointed out in Lodhi v R at [79], offences of this nature are “directed to preparatory acts” and the seriousness of such preparatory acts is shown in the maximum penalty. The position was summarised by Price J in that case in the following manner at [229]:

The legislative intent in imposing offences of the nature of that in s 101.4 is to deter and punish persons who, whilst they may not actually participate in a terrorist offence, render assistance by (in this case) recklessly keeping a ‘thing’ connected with preparation for a terrorist act. It makes it clear that criminality extends beyond participating in, or for that matter, preparing for a terrorist act. Persons who engage in the conduct prescribed by s 101.4 can, in these circumstances, expect condign punishment.

It follows, in my view, that the criminality of the terrorist offence is not encapsulated by the firearms offence, even taking into account the aggravated criminality of the latter offence. Thus a degree of accumulation is necessary.

The approach by the sentencing judge undoubtedly had the effect of imposing a very severe sentence on the applicant. Although as will be seen, I have come to the conclusion in resentencing that a lesser degree of accumulation is appropriate, that does not mean that the sentencing judge was in error, although it may have been a relevant consideration if it was necessary to determine whether the sentence was manifestly excessive.

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

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

It is not necessary to deal with this ground by reason of the fact that it is necessary for the Court to resentence in view of the applicant’s success on grounds 1 and 7. However, I have summarised the submissions made by the parties as they are relevant on resentence.

The applicant in written submissions submitted that the undiscounted sentence [Redacted] was in excess of 21 years. It was submitted that was manifestly excessive.

The applicant accepted that the firearms offence was aggravated by his recklessness as to the use to which the pistol might be put and the fact that at the time the pistol was supplied, he was subject to a FPO . He also accepted that the Form 1 offences served to aggravate the offence. However, he submitted that whilst the firearm was capable of being used to cause death, it did not have the features of some prohibited firearms, such as automatic machine guns and submachine guns.

The applicant, although noting the limitations on sentencing statistics, pointed out that they revealed that no other person had received a sentence for the supply of revolver offence in excess of 8 years and no person received a non-parole period in excess of 5 years. He compared this to the sentence of 14 years and 2 months in the present case.

In relation to the terrorist offence, he stated that the statistics revealed only one case finalised, for which a sentence of 5 years (with a non-parole period of 3 and a half years) was imposed. He also submitted that when regard was had to the accumulation, the sentence for each offence was approximating the maximum penalty.

At the hearing, senior counsel for the applicant repeated the submission that one could see the entire criminality in the firearms offence and that even if some degree of accumulation was necessary, the sentences were very lengthy. He pointed out that as the applicant was turning 22 years at the time of sentence, the sentence ends when he was 40 years of age and the non-parole period when he is 36. He submitted that the sentence removed very significant years of a person’s life.

He also submitted that each year which is added on to a long sentence has an “exponential effect”.

The Crown in his written submissions stated that it was instructive that the applicant did not state that the judge did not apply the correct sentencing principles which he submitted were addressed by this Court in Lodhi v R at [108]-[109]. He submitted that “[i]n the circumstances of the present case, punishment, protection of the community, deterrence and denunciation were prominent sentencing features”.

The Crown also emphasised the limited use which could be made of the statistics.

At the hearing, the Crown submitted the relevant sentencing principles for an offence under s 101.4 of the Criminal Code were summarised correctly in R v Mulahalilovic at [42]-[50], pointing out that case only related to the provision of ammunition, not ammunition along with the item which could be used to fire it.

He submitted, referring to R v Barot (Dhiren) at [45], which he stated had been picked up in a number of Australian authorities, that it was “important that those who might be tempted to accept the role of camp followers of the more fanatic, are away that, if they yield to that temptation, they place themselves at risk of very serious punishment”. It was submitted in that context that although the sentence was high, it was not inappropriately high.

Both offences committed by the applicant are of a very high degree of seriousness for offences of this nature. The terrorist offence involved the handing over of a revolver ready for immediate use in circumstances where the applicant was aware of a high degree of risk that the revolver would be used in a terrorist act which could cause death or serious injury to a member or members of the public.

Whilst I am not satisfied beyond reasonable doubt that the offence was aggravated by the fact that the applicant was motivated by sympathy for Islamic State in supplying the revolver, at the very least he was indifferent to the fact there was a substantial risk that it would be used in a terrorist act in support of that group. The absence of the particular aggravating factor of sympathy for Islamic State does not alter the fact that the offence is a serious one of this nature, nor does it alter the need for both general and personal deterrence.

The firearms offence is also most serious. It is aggravated by the fact that it was supplied in circumstances where the applicant knew there was a substantial risk that it would be used in a terrorist attack. It is further aggravated by the fact that at the time of its supply, the applicant was subject to a FPO. As the sentencing judge pointed out, it demonstrates a significant need for personal deterrence.

The sentencing judge dealt with subjective circumstances of the applicant in the manner which I have set out at [37]-[44] above. It was not subject to any criticism on the appeal and I would respectfully adopt what was said by his Honour on this issue. So far as the applicant’s prospects of rehabilitation are concerned, I agree with the sentencing judge that in light of the applicant’s prior criminal history his prospects of rehabilitation are at best “guarded”. In reaching this conclusion, I have taken into account the evidence of the Prison Muslim Chaplain, Mr Ahmed Kilani, as to his interaction with the applicant at the HRMCC and in particular his statement that the applicant was not driven by any extremist Islamic ideology and that in fact he was treated by some other inmates as a Muslim apostate. I have also taken into account the evidence of his mother, Ms Sanaa Alameddine, and his cousin, Mr Emad Alameddine, to similar effect as well as that of his childhood friend, Mr Mouhamad Wehbeh. Each of them gave evidence similar to that of Mr Kalini as to his treatment by other inmates and also referred to his expressed desire to reintegrate himself into the community.

However, these matters must be weighed against the applicant’s previous criminal record and the fact that he did not give any evidence on these issues. Whilst they demonstrate some progress towards rehabilitation and tend to confirm that he was not motivated by extremist beliefs in handing over the weapon, in my opinion, in light of that previous criminal record, his prospects of rehabilitation remain no more than guarded.

I have also taken into account the fact that he has expressed remorse to those persons who have visited him in prison. Whilst that may be given some weight, like the sentencing judge in the absence of evidence from the applicant, I am unable to be satisfied that the applicant has demonstrated contrition or remorse. I also agree with the sentencing judge that little weight can be placed on the youth of the applicant having regard to the nature of the offences.

I have also taken into account the other matters required to be taken into account by s 16A of the Crimes Act and s 3A and s 21A of the Crimes (Sentencing Procedure) Act to the extent relevant in the present case.

In relation to the firearms offence, it is necessary to take into account the offences on the Form 1. The criminality of the first offence on the Form 1 seems to me entirely subsumed by the firearms offence. However, the criminality involved in the other offences on the Form 1 (the 6 October 2015 offences) need to be taken into account.

The statistics provided by the applicant in respect of sentencing for offences of the nature of the firearms offence provide no assistance. The firearms offence was a serious offence of its kind in circumstances where the maximum penalty is 20 years and the standard non-parole period is 10 years. Although I have concluded that a slightly less sentence than that imposed by the sentencing judge is appropriate, I do not think that the statistics supplied by the applicant provide any assistance. Of more relevance is the maximum penalty and the standard non-parole period.

Like the sentencing judge, I would allow a discount of 15 percent on the sentence for each charge for the utilitarian value of the applicant’s pleas. [Redacted].

So far as accumulation is concerned, as I indicated in dealing with ground 4, a degree of accumulation is required to reflect the separate criminality of the terrorist offence. However, in my view, a lesser degree of accumulation than that provided for by the sentencing judge is appropriate. I agree that the starting date for the sentence provided for by the sentencing judge is appropriate.

So far as the non-parole period is concerned, in relation to the terrorist offence, I have imposed a non-parole period of 75 percent of the total sentence as required by s 19AG of the Crimes Act. In relation to the firearms offence, like the sentencing judge I have made a limited finding of special circumstances to take into account the effect of the accumulation.

In the result, I would impose the following sentences after taking into account the discounts to which I have referred.

In the result, I would make the following orders:

PRICE J: I have read in draft the judgment of the Chief Justice with whom N Adams J agrees.

The relevant facts and issues in this appeal are comprehensively covered in the Chief Justice’s judgment and I gratefully adopt them. I agree that Grounds 2, 3, 4 and 5 of the appeal have not been established.

As to Grounds 1 and 7 of the appeal, I agree that the sentencing judge was misled through no fault of his own by the admission into evidence of Constable Hannah’s statement in the absence of annexure E to that statement. My respectful point of departure from the Chief Justice’s judgment arises from the Chief Justice’s conclusion that he could not be satisfied beyond reasonable doubt the applicant’s supply of the revolver was motivated in part by his sympathy for Islamic State.

True it is that the conduct referred to in paragraph 14 of Constable Hannah’s statement occurred on 24 July which was after the incident on 5 July and at that time the applicant was wearing a fluoro high visibility work shirt and was charming to Constable Hannah. However, in my opinion, this does little to detract from the sentencing judge’s finding that the events described by Constable Hannah occurred on 5 July 2015 and was reflective of a level of sympathy for a more fundamentalist view of Islam. During the conversation with Constable Hannah, the applicant told the police officer that his beard was “for ISIS”. It was open to the sentencing judge to detect no humour in the account and to find for the applicant to act in this way, concerning a very serious topic, supported the view he actually held such beliefs at the time.

These findings are to be viewed in combination with other findings made by the sentencing judge which are not disturbed on appeal. These findings are:

When all of the findings are considered together, it is my conclusion there is not a reasonable possibility that at the time the applicant handed over the loaded revolver to Alou the applicant was not motivated in part by his sympathy for Islamic State. I am fortified in reaching that conclusion by the applicant’s concession that on the day of the offence, he had a full beard.

In my view, it was open to the sentencing judge to be satisfied beyond reasonable doubt that the applicant was sympathetic towards Islamic State and was motivated to commit the offence in part because of such sympathy. In my respectful opinion, Grounds 1 and 7 to the extent that they deal with the applicant’s motivation to supply the revolver have not been made out.

Because I am in the minority, it is sufficient to state for Ground 6 of the appeal that the applicant has not demonstrated that his sentence was unreasonable or plainly unjust.

Whilst I would grant leave to appeal, I would dismiss the appeal.

N ADAMS J: I agree with Bathurst CJ.