R v Zahab

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

The offending in count 1 is contrary to s 102.7(1) of the Criminal Code 1995 (Cth) (‘the Code’) and carries a maximum penalty of 25 years imprisonment.

The offending in count 2 is contrary to s 3LA(2) of the Crimes Act 1914 (Cth) (‘the Act’) and carries a maximum penalty of 2 years imprisonment.

The offender is to be sentenced having regard to the provisions of Part IB of the Act, and in particular by reference to the matters set out in s 16A.

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

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

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

Section 102.7(1) is contained within Part 5.3 of the Code which deals with terrorism offences of varying kinds. An offence against s 102.7(1) does not involve the commission, or acts in preparation for the commission, of a terrorist act. However in my view, the principles which apply to offending of that nature apply, with equal force, to an offence contrary to s 102.7(1). Those general principles include the following: [8]

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

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

Mr Spleeters gave evidence that he is presently the head of regional operations of Conflict Armaments Research (‘CAR’). He is a former investigative journalist specialising in weapons and ammunition. In that role, he has travelled to approximately 50 locations throughout the world for the purpose of researching the arms trade, and investigating the activities of arms dealers and traffickers.

Mr Spleeters explained [52] that CAR is a private research organisation which is principally funded by the European Union for the purpose of investigating the manufacture and use of weaponry in conflict areas around the world. He explained [53] that his role was to try and understand how weapons used in overseas conflicts came to be at the place of conflict in the first instance.

He gave evidence that in the locations he had visited there were facilities for: [54]

Bearing in mind the facts in the present case, Mr Spleeters agreed that he:

The offender gave evidence [59] 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. He said that as a consequence of what he had learned, he formed a desire to assist civilians in that conflict to defend what he regarded as the oppressive regime of Bashar al-Assad, the Syrian President. [60] He said that he regarded Islamic State as ‘the biggest group on the ground that had the best military success against the Assad regime’. [61] He said that he became ‘obsessed’ with Islamic State [62] which he regarded as a ‘force of good’. [63]

The offender initially maintained that it was only after he had been arrested and taken into custody that he began realise that his generally favourable view of Islamic State might not be correct. [64] However, he later acknowledged [65] 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. He said: [66]

In terms of the offending in count 1, the offender said that he decided to try and build a laser warning receiver as a challenge to himself, [67] but that he shared material with another Twitter user whom he thought was a member of (or was otherwise connected to) Islamic State. [68] He 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. [69] He said that a laser warning receiver assisted people to avoid the effect of laser guided missiles. He also agreed that it also had the effect of keeping people alive so that they could kill other people. [70] On several occasions in the course of giving evidence, the offender emphasised that his offending involved utilising material which was, in large measure, freely and publicly available. [71]

The offender agreed that the purpose of developing the laser warning receiver was so that it could be used in the battle field, [72] but he reiterated that he did not send any information to anyone regarding the development of rocket simulations. [73] The offender was asked, in relation to his rocket research: [74]

The offender accepted that he had regularly used an alias when communicating with others during the period of his offending. [75] When asked why, he initially said that it was “just a habit”. [76] However, he later conceded [77] that he had done so in order to ensure that others would not discover the communications and conversations in which he was engaged.

The offender said that he became interested in rockets because he was ‘a fan of technology’ and ‘a fan of space’. [78] He said that he had researched and documented how to make rocket engines, [79] and had realised that he could ‘fulfil his fantasy’ by using his computer to design and launch rockets. [80] He explained: [81]

The offender said that as far as he was aware, Islamic State did not derive any benefit from his research into rockets. [82] However, he accepted that his research could have been used to assist them. [83] When asked whether he thought it was possible that his research could have been used in a way which would hurt civilians, he said: [84]

When specifically asked [85] whether he regarded Islamic State as a violent organisation, the offender said:

The offender was then asked: [86]

In terms of the offending in count 2, the offender agreed that he refused to provide passwords to police to allow them to unlock devices on which there was encrypted material, and said that he had done so out of “anger”. [87] He said that his ‘journey full circle’ to reaching the point of regret for supporting ISIS had taken approximately 12 months, [88] but he 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. He explained that this was because he thought that the police would have obtained access by that time in any event. [89] He said that he knew what the passwords were and decided not to provide them, [90] but then asserted [91] that there were a ‘couple he didn’t remember’.

As previously noted [92] the offender maintained that he first started to realise that what he had done was wrong, and that his view of Islamic State might not be correct, when he was taken into custody and was exposed to ‘general media and documentaries’. He explained: [93]

The offender agreed [94] that it was his choice to confine himself to social media as his only source of news. He was asked: [95]

He was asked: [96]

The offender acknowledged that he was aware that Islamic State had declared its intention to create an Islamic caliphate, but denied that this was a reason that he supported them [97] . He acknowledged that his support of Islamic State was ‘incredibly wrong’ [98] and said that he now accepted that the organisation itself was also ‘wrong’ [99] .

The offender said that he had had several consultations with an Imam since being taken into custody which he had found beneficial in terms of his rehabilitation. [100] He said: [101]

Ahmed Kilani, a Muslim Prison Chaplin, gave evidence that he had seen the offender on 3 or 4 occasions in custody for extended periods, and had had other (more limited) contact with him on a further 10 occasions. [102] Mr Kilani expressed the view that the offender was ‘not ideologically driven like most of the other inmates in the facility’. [103] In terms of the offending, he said that the offender had told him that he was ‘just trying to help innocent people and wouldn’t want to harm anybody else’. [104] Mr Kilani described the offender’s understanding of Islam as ‘very basic’. [105] He said [106] that he (the offender) saw Islamic State as a movement that supported the Syrian people, and that he was not ‘aware of some of their atrocities’. [107] Mr Kilani went onto explain [108] that within the last 12 months the offender had expressed to him that he ‘felt like a fool’ because he had come to the realisation that Islamic State was ‘actually a movement that’s completely un-Islamic and quite barbaric and evil in their actions’.

Mr Kilani said [109] that in his observations the offender had limited interaction with other inmates in custody, and that the offender had told him that this was because his views were different to those held by others. [110] He said it was ‘extremely rare’ for a person to publicly denounce Islamic State. [111] He also said that the offender had told him that he felt that he had let both himself and his family down by his offending. [112]

When cross-examined, Mr Kilani confirmed that although he had first spoken to the offender in about March or April of 2017 [113] , it was not until April of this year, some two years later, that the offender had made a ‘full denunciation’ of his previous views regarding Islamic State. [114]

The Crown submitted that the objective seriousness of the offending in count 1 was reflected in the fact that the offender had consistently applied himself, over a period of approximately 2 years, to researching both the laser warning receiver and rockets, and that he had done so intending to assist Islamic State in armed hostilities overseas.

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:

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

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.

It was submitted that in light of all of these matters, the offending in count 1 was very serious.

In terms of the offending in count 2, the Crown submitted that the only available conclusion to be drawn from the offender’s refusal to supply the passwords to police was that he wished to conceal his offending, or at least wished to conceal its gravity and extent. It was submitted that the offender’s failure to comply with the demand that he provide the passwords had hampered the police investigation into his activities, and that the sophisticated encryption which had been placed on his devices was reflected in the fact that it took the police more than a year to unlock the devices and access the material.

Having regard to these matters, the Crown submitted that the offending in count 2 was also serious, bearing in mind the purpose of the legislation, and the effect, on the police investigation, of the offender’s refusal to comply with the demand which was made of him.

Senior counsel for the offender emphasised that there was no evidence that the offender had, at any time:

In advancing this submission, senior counsel for the offender referred generally to the Revised Explanatory Memorandum [115] to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth) which introduced (inter alia) s 102.7 of the Code, and which made reference to domestic security threats posed by the return, to Australia, of persons who had travelled overseas and participated in foreign conflicts, or who had travelled overseas and undertaken training with extremist groups. Senior counsel for the offender submitted that the actions of the offender did not fall into either of these categories. He submitted that the offending in count 1 should be regarded as ‘unusual’, and that in circumstances where the offender had not, at any time, entered any foreign country to fight or train with any extremist group before returning to Australia, it was an exaggeration for the Crown to submit that the offending was very serious. It was further submitted that the offending had arisen from the offender’s concern for persons being killed in Syria, as a consequence of which he felt compelled to use his knowledge and expertise to try and assist an organisation that he believed to be well intentioned.

Senior counsel further submitted that although the evidence supported a conclusion that the offender was a supporter of Islamic State during the period of the offending, the offender was not ‘radicalised’, had not wanted to commit any terrorist act, be it in Australia or overseas, and did not hold any fanatical religious views.

Senior counsel emphasised (as the offender himself had emphasised when giving evidence) that much of the material utilised in the offending in count 1 was readily and publicly available. Senior counsel further submitted that at least in relation to the research undertaken by the offender in relation to rockets, there was no evidence that any of the material assembled was sent to any person connected with Islamic State.

In terms of the offending in count 2, senior counsel submitted that although the offender had not complied with the demand made of him by police, there was no evidence that he genuinely did not recall the passwords, and that the objective seriousness of that offending was to be assessed in that light.

The offending in count 1 was not fleeting. It occurred over a significant period of time, and was concentrated and sophisticated. It involved the offender earnestly engaging in intricate and planned scientific research. He did so with unwavering focus, at all times intent upon assisting Islamic State in its involvement in armed and violent hostilities overseas. The level of the offender’s commitment and dedication to his task is reflected in his admission that he was ‘immersed’ in what he was doing.

Moreover, the results of the research undertaken by the offender, and the assistance he provided to Islamic State as a result, was not nebulous. It was both substantial and tangible. It is significant that the offender saw a need to engage in subterfuge in an attempt to ensure that his offending was not discovered.

Consistent with the offender’s commitment and dedication, it is an agreed fact [116] that he sent a lengthy report in relation to the laser warning device to persons associated with Islamic State. Moreover, in the context of his research about rockets, the offender made mention in a conversation with ‘Ullah’ that he had sent ‘a full chemical munitions cook book’ [117] which explained a number of issues, including data verification, and which he sent to Islamic State. The extent of the offender’s research into rockets is reflected in the fact that in that same conversation [118] he made reference to having reached the point where he was ‘studying multiple stage rockets and flight times’. The evidence of Mr Spleeters establishes that rocketry is used in armed conflict.

The offender was at pains to point out when giving evidence that the offending in count 1 involved the use of (at least in part) materials which were freely and publicly available. The emphasis placed by the offender on that circumstance suggested that he viewed it as mitigating, or perhaps even justifying, his conduct. The fact that some of the material he used may have been freely and publicly available is not to the point. The more important consideration is that the offender, having located such material, chose to use it in a way which amounted to the commission of a serious criminal offence.

The offender also asserted on more than one occasion in the course of his evidence, that at the time of the offending in count 1 he held a genuine belief that Islamic State was a force of good rather than a force of evil. I do not accept that for a number of reasons.

First and foremost, the offender has pleaded guilty to an offence of intentionally providing support or resources to Islamic State, knowing at the time that Islamic State was a terrorist organisation. There is an obvious, and fundamental, inconsistency between admitting knowledge of the fact that an organisation is a terrorist organisation on the one hand, and simultaneously asserting a genuine belief that such an organisation is a force of good on the other.

Secondly, I do not accept the offender’s evidence that he was unaware of the true nature of Islamic State because he chose to divorce himself from mainstream news, and restrict himself to social media platforms such as Twitter as the source of information in relation to world affairs. Leaving aside the fact that the offender admitted to always looking at news websites, [119] his evidence essentially amounts to the proposition that he was living a hermit-like existence, cloistered in something akin to a hermetically-sealed bubble, completely removed from reality, and totally oblivious to the true nature of Islamic State as a terrorist organisation. Such a proposition, in my view, is fanciful in the extreme. The fact of the matter is that like the rest of the world’s population, the offender had become aware of the atrocities committed by Islamic State. His level of dedication to that organisation saw him choose to ignore what had come to his attention.

Thirdly, and bearing in mind that the facts of the offending were agreed, things said and done by the offender himself, often by reference to the activities of Islamic State, are antithetical to the proposition that he held a genuine belief that Islamic State was a force of good. For example, the facts record [120] that the offender generated and posted numerous pro-Islamic State, and anti-Western, GIFS on his Twitter account, and that his profile picture was an image of a soldier leaning against a wall in a war zone, accompanied by the text ‘victory or martyrdom’, against a background picture of a convoy of vehicles flying the Islamic State flag.

Messages posted by the offender on his Twitter account also fly in the face of the proposition that he was unaware of the true nature of Islamic State as a terrorist organisation. For example:

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

There is also evidence that the offender used a GPS visualisation calculator to depict a ‘launch location’ and a ‘ground hit location’ of a rocket. The example he used was a map of the rocket launch, distance and ground hit in the Syrian town of Sarrin in the north eastern Province of Aleppo. At the time of that being written, that town was the subject of fighting between Islamic State, and the free Syrian army. [129]

This evidence is, in my view, inconsistent with the offender’s asserted belief that Islamic State was a virtuous organisation. It is, however, reflective of a person who holds radical and extremist views.

One of the principal submissions advanced on behalf of the offender was to the effect that the seriousness of his offending was mitigated by the fact that the citizens of Australia were unaffected (at least directly) by anything that he had done, and that his offending was not of a kind contemplated in the Explanatory Memorandum. Even if that is the case, I am unable to accept that it mitigates the offending to any real degree. The provisions of s 102.7(1) of the Code do not distinguish between the commission of an offence which directly affects this country and its citizens, and the commission of an offence which does not. Moreover, s 15.4 of the Code applies to an offence against s 102.7(1). [130] Under s 15.4, an offence contrary to s 102.7(1) applies whether or not the conduct constituting the offence occurs in Australia, and whether or not a result of the conduct constituting the offence occurs in Australia.

It follows that in my view, the offending in count 1, involving as it did a high degree of planning, sophistication and analysis over a long period of time, was necessarily very serious. In those respects, it may be usefully contrasted with the circumstances of the offending considered in R v Atik [131] where the assistance provided was essentially limited to obtaining airline tickets to allow persons to fly interstate on two occasions. [132]

The offending in count 2 was also serious. The offender’s evidence in relation to it was contradictory. To begin with, he admitted that he knew the passwords and refused to provide them. He then asserted that he had forgotten some of them. I am satisfied that the offender did know the passwords, and that he refused to provide them. According to the offender, his refusal was motivated by anger. Whilst the offender may have been angry, his conduct in refusing to comply with the demand was consistent with a desire to ensure, as far as possible, that the full extent of his offending was not discovered. That is supported by the fact that, after the police had searched his premises, the offender told Ullah:

That evidence demonstrates the significant degree of secrecy in which the offender engaged, and the lengths to which he was prepared to go in an effort to ensure, as far as possible, that his offending would not be discovered. He maintained in his evidence that his reference to things being ‘buried’ was ‘just a figure of speech’ [133] and that his reference to ‘wiped’ meant that he considered that material had been buried. I do not accept that to be the case. The offender is clearly an intelligent man. If that was he actually meant, that is what he would have said.

The investigation into the offender’s activities was frustrated by his failure to comply with the demand which had been placed upon him. The purpose of s 3LA of the Act is to assist police in their investigations. The section addresses the fact that in this digital day and age, criminal offending often involves the compilation and storage of data. The section should be viewed as the Parliament’s response to the fact that criminal offending has become more sophisticated, and that combating it requires the exercise of extended powers of investigation. The seriousness of the offending in count 2 is reflected not only in the offender’s admission of knowledge of the passwords, but in the fact that his failure to comply with the demand frustrated the police investigation for a significant period of time.

I have already referred [136] to the offender’s expressed contrition, and his evidence of how he regarded Islamic State at the time of his offending. For the reasons I have already expressed I do not accept that the offender genuinely thought, at the time of the offending, that Islamic State was a force of good. That necessarily leads me to view, with considerable scepticism, the offender’s evidence generally.

I have had regard to the evidence of Mr Kilani in this respect. Whilst I have no doubt that Mr Kilani was giving his evidence honestly, the fact remains that his opinions are necessarily based largely upon what the offender told him. If what the offender said to Mr Kilani (which his generally consistent with what he said in his evidence) is rejected, then necessarily the foundation of Mr Kilani’s opinions falls away to a large degree. Significantly, Mr Kilani said [137] that it was only in April of this year that the offender had reached a point where he fully denounced his previous views of Islamic State. Whilst I accept that deradicalisation is a gradual process, it is not without significance that even on the offender’s own evidence, the process was completed only a short time before he was due to face sentence for his offending.

In all of the circumstances, whilst the offender’s pleas of guilty are some evidence of contrition, I am sceptical as to whether the offender’s expressions of contrition in his evidence are genuine. Necessarily, that conclusion is inextricably linked to any assessment of the offender’s prospects of rehabilitation. Those prospects are necessarily dependent upon a renunciation of the views which were held by the offender at the time of his offending. In the circumstances, I am guarded about those prospects. In any event, in passing sentence for offences of this nature, the object of the Court is to punish, deter and incapacitate to the point where rehabilitation is likely to play a minor, if any, part. [138]

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

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

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

The offender gave evidence [145] that he was born in Bankstown and attended Bankstown Public School and Bankstown Boys High School. He completed his School Certificate at the end of Year 10, following which he undertook a 4 year apprenticeship before gaining employment as an electronic technician [146] . In his report, [147] Mr Machlin recorded that the offender told him that he had grown up in a generally well-functioning family unit, albeit one in which strict discipline was administered by his father.

The offender was married in 1988. He has six children ranging in ages from 4 to 23. He said [148] that he moved from Sydney to Young to look for a ‘quieter life in the country’. At the time of moving he had been employed installing and servicing solar panels [149] but once he moved he was unable to continue that employment due to the limited demand for such services.

Mr Machlin recorded [150] that the offender reported no personal or family history of mental illness. The offender had said to Mr Machlin that he had a ‘suspicion’ that he may suffer from Asperger’s Syndrome. He also described features of OCD [151] . As to the first of those matters, Mr Machlin said [152] that it would be necessary to refer the offender for a further assessment in order to reach a definitive opinion. As to the second, Mr Machlin appeared to accept that what was reported to him indicated the presence of traits which were identifiable as being symptomatic of OCD, although he said that the offender did not have debilitating symptoms which would support the existence of a diagnosable condition.

Mr Machlin ultimately diagnosed the offender as suffering from an adjustment order with depressed mood [153] . However, it is evident that he attributed this condition to the stress of incarceration [154] . He did not identify the offender as suffering from any diagnosable illness, mental or otherwise, at the time of his offending. There is therefore nothing in that regard which moderates the need for general deterrence.

The offender appeared before the Local Court in 2016 and was charged with relatively minor firearms and drug related offences. In each case, he was dealt with pursuant s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). I have read the testimonials tendered on behalf of the offender. They variously describe him as being a person of excellent character, [155] who has never exhibited any violent or radical behaviour, [156] who is ‘reliable and trustworthy [157] and who has never previously shown any violent or radical behaviour. [158]

In the circumstances, and having regard to the testimonial evidence, I am prepared to conclude that the offender is a person of otherwise generally good character. However, given the nature of the offending, that fact is of less weight than might otherwise be the case. [159]

In determining an appropriate sentence I have had regard to principles of totality. The Act requires that I have regard to the need to ensure that the offender is adequately punished for the offence. [160] All of the matters to which I have referred bear upon that issue.

The offender has been in custody since his arrest on 28 February 2017. Any sentences that I impose should be backdated accordingly.

I make the following orders: