R v Taleb (No 5) (Sentence)

1. [1]

   Moudasser Taleb is a 24 year old man with schizophrenia and very little criminal record. He is to be sentenced following his conviction in relation to an offence of engaging in conduct preparatory to committing a foreign incursion offence. [1] The conduct was engaged in early 2017 when the offender was 22 years old and in the course of his dealings with an undercover police officer (‘UCO’). [2]

2. [2]

   Mr Taleb was arrested on 15 June 2017 as he walked through the doors of the departures terminal at Sydney Airport. He had little money and no ‘plane ticket but his suitcase was packed and he was ready to travel. His intention was to travel to Syria, join the Caliphate established by the Islamic State and fight with the insurgency against the Syrian government and other enemies of ISIS. He believed his passage was to be organised by people associated with the UCO. He has been in custody ever since. When I impose sentence on him in an hour or so, he will have been in custody for exactly two years. This period must be taken into account in determining the commencement date of any sentence. [3] It is also relevant in determining the appropriate penalty to be imposed.

3. [3]

   The offence carries a maximum penalty of life imprisonment. [4] Imprisonment for life is the most severe sentence contemplated in Australian law. This shows how seriously such offences are treated by the Parliament. Sentencing courts must respect the legislature’s clear intention reflected in this maximum penalty. One reason the Parliament increased the penalty for this kind of offence is to protect the Australian public from the risk that people who travel overseas to fight with extreme and violent groups will become more radicalised and then return to Australia with ideas and plans of carrying out terrorism domestically. This aspiration must be respected by sentencing Courts and the maximum penalty of life imprisonment given real emphasis in exercising the sentencing discretion. While I intend to impose a penalty almost at the opposite end of the sentencing spectrum, I have kept the maximum penalty of life imprisonment firmly in my mind throughout my deliberation as to what constitutes an appropriate and just penalty in all of the diverse, complex and individual circumstances of Mr Taleb’s case. At the forefront of my consideration is the protection and safety of the community.

4. [4]

   The circumstances of Mr Taleb’s offending, along with his personal situation, are compelling and unusual. I consider the combination of relevant factors to be exceptional. Those circumstances include the onset of his mental illness during the period of the offending, the impact of the incarceration upon his psychiatric condition, the lengthy and onerous nature of his pre-trial incarceration and the fact that his crime was encouraged and facilitated (entirely appropriately) by investigating police. Without the assistance and encouragement of the undercover officer, Mr Taleb would not have taken himself to the airport. There was certainly no realistic prospect that he would have boarded a flight and left Australian soil, let alone joined the insurgency in Syria.

5. [5]

   Mr Taleb was found guilty after a trial by jury. The facts upon which he is to be sentenced must be consistent with the findings inherent in the jury’s verdict. Where a fact aggravates the criminality it must be established beyond reasonable doubt. Mr Taleb has an onus of proving mitigating features on the balance of probabilities. I have considered the evidence given in the trial as well as additional evidence tendered on sentence.

Background: a lonely boy, a sick mother, a near death experience, an incipient mental illness, and religion

1. [6]

   Mr Taleb was born and raised in south-west Sydney. He was an only child although he has a stepbrother. His father deserted the family and his mother had a number of relationships described by one of her nephews as unhealthy. [5] Mr Taleb’s mother suffers from multiple sclerosis and by 2016 her condition was extremely debilitating. She was wheelchair bound and had very limited movement in each of her limbs. By the time of the trial, at which she gave evidence, she had no movement in her arms and legs and could scarcely move her neck.

2. [7]

   Mr Taleb played an important role in the care of his mother. This was the situation for many years before he committed the offence. A number of carers came to the home but Mr Taleb was, in a sense, his mother’s full-time carer. He received a carer’s benefit from Centrelink as a result. [6] Sometimes his mother went to a nursing home or similar, presumably as a form of respite care. Mr Taleb appears to have had a very limited social life. Much of his time was spent in his room playing video games, many of which were violent games, including war and battle simulations. He said he had some contact with “mates” from school but it seems he was a lonely and isolated young man. At some stage in his early twenties he was married but his marriage lasted a very short time. [7]

3. [8]

   On 24 March 2014, Mr Taleb was admitted to Bankstown Hospital. He was 19 years old. While no diagnosis was made at that time, it seems he was in some kind of psychiatric or psychological crisis. He had consumed two bottles of vodka and there was a strong suggestion of self-harm or suicide. Hospital notes tendered in the trial reported that he had consumed the alcohol “due to stepfather mistreating his mother and their relationship” [8] . Mr Taleb was brought to the hospital by his landlord after reporting that he wanted to kill himself. He may have simply been exhausted. The evidence is not entirely clear. However, this was a significant and life-changing event in the offender’s life.

4. [9]

   After his admission to Bankstown Hospital, Mr Taleb became more religious. He was raised as a Muslim but was not particularly devout until his hospital admission in 2014. After the admission to Bankstown Hospital, Mr Taleb’s interest in Islam became intense. By 2017, his religious interest was obsessive and included a belief in radical Islamism and support of the Islamic State or ISIS. [9] In his evidence at the trial, the offender described Islamic State as a terrorist organisation.

Mr Taleb comes on to the police radar

1. [10]

   Neither the evidence on the pre-trial voir dire, nor the evidence in the trial, allow for a finding as to how Mr Taleb came to be on the police radar. There was a good deal of “closed” or “confidential” material tendered in the course of various pre-trial arguments over a number of subpoenas. [10] However, the open or public evidence merely established that by January 2017, New South Wales police began (or had already commenced) an investigation into his thoughts, beliefs and activities.

2. [11]

   On 11 January 2017, Detective Sutherland went online and looked at the offender’s Facebook account. The pages “liked” by Mr Taleb, his user names, profile pictures and biography betrayed an interest in radical Islamism and the activities of the Islamic State in Syria and Iraq. Police then obtained telephone intercept warrants and began listening in to Mr Taleb’s telephone calls. Some or all of those calls were tendered in the trial. Based on this and other evidence, I am satisfied that by the time the police investigation was in full swing in March and April of 2017, Mr Taleb was already interested in travelling to the Middle East and joining the forces of the Islamic State. While such a finding was not inherent in the verdict, I am satisfied that this was the case and the finding is not inconsistent with the jury’s verdict.

Telephone intercepts

1. [12]

   The telephone calls make for painful listening. They are long and discursive; in parts, troubling, in others, embarrassing and awkward. Calls with a young woman went on for hours in the early hours of the morning. Those calls appeared to be a very immature, rudimentary and tedious form of flirtation or seduction interspersed with religious and political pronouncements. The young couple fed off one another’s religious devotion, if not zealotry. In making factual findings on sentence, and I expect from the jury’s point of view, the more significant calls are those in February and March of 2017. This is because they pre-date the involvement of the UCO and establish, beyond reasonable doubt, that Mr Taleb was “radicalised” by that time and had an interest in travelling to Syria to become a martyr.

2. [13]

   In one passage, Mr Taleb purported to express the view that he was against terrorism and that violence gave Muslims a bad name. However, I accept (beyond reasonable doubt) that this was a ruse. The comment came after the young woman made a comment that they should not talk about going to fight in Syria over the telephone and before a self-evidently facetious and disingenuous comment to the effect that the United States’ government was “the hope for humanity”. This particular part of the conversation was important because it demonstrated that Mr Taleb was aware that his ideas and percolating plans were illegal, if not wrong. They also established a pre-existing desire to fight with IS in Syria or Iraq.

3. [14]

   In the course of telephone calls with the young woman and an old school friend, Mr Taleb expressed extreme and violent views about the war in Syria, infidels, Shia Muslims and the perceived benefits of martyrdom. Contrary to the case presented at trial, I have no doubt the jury was satisfied that those comments reflected Mr Taleb’s beliefs and desires at the time and exposed him as a young man with extreme and potentially dangerous beliefs. Whether those ideas and beliefs would ever have manifested themselves in acts of violence or terrorism, is a different question. Of course, he is not to be sentenced for any act of violence or terrorism and is not charged with any such offence. Equally, the fact that no violence actually eventuated does not mitigate the objective criminality of the present offence which is, by its nature and terms, concerned with punishing and thereby deterring preparatory conduct.

The first stage of the controlled operation

1. [15]

   The police commenced a controlled operation on 25 January 2017. The details of this operation are scanty. It was described as the “non-evidentiary” phase of the operation. None of the evidence gathered in the course of that operation was tendered at the trial. A limited amount of the material was tendered on a pre-trial application concerning some subpoenas and on a voir dire conducted to determine the admissibility of some of the evidence. [11] Counsel for the Commissioner of Police NSW maintained a watching brief over the proceedings and was fastidious in ensuring that very few details of the non-evidentiary stage of the operation emerged in evidence.

2. [16]

   However, Mr Taleb gave evidence of what happened before he met the UCO. Based on his evidence, and the inferences to be drawn from the objective of the controlled operation, I am satisfied that in February and March 2017, one or more agents provocateurs made contact with Mr Taleb and investigated and encouraged any desire he may have had to commit acts of terrorism and/or to take part in foreign incursions. I am satisfied that one of these agents told him that he would be contacted by a person who would assist him in preparing to go overseas to take part in a foreign incursion. I am satisfied that these agents also explained that a code would be employed when Mr Taleb was contacted by the UCO. There is no other reasonable explanation to explain the nature of the initial contact between Mr Taleb and the UCO.

3. [17]

   On 24 March 2017, this first “non-evidentiary” phase of the controlled operation came to an end. Police then commenced a second controlled operation. This involved the use of the UCO.

The second stage of the controlled operation

1. [18]

   On 24 March 2017, the UCO contacted the offender via an encrypted messaging service called “Telegram”. He said he was from the “pest control service.” Mr Taleb said he needed help to get to “the jobsite”. These initial messages were in the code Mr Taleb had been advised to use in the course of the first stage of the controlled operation. I am satisfied that Mr Taleb’s reference to the “jobsite” was a veiled reference to the battlefields of Syria and/or Iraq. This initial exchange of messages demonstrates two things relevant to a proper assessment of Mr Taleb’s objective criminality. First, the use of code demonstrates that Mr Taleb knew that what he was doing was wrong or illegal or both. Second, Mr Taleb’s interest or desire to fight with Islamic State existed before the involvement of the UCO.

2. [19]

   Over the next two months, there was ongoing contact between the UCO and the offender. This involved exchanges of messages on Telegram and five meetings. The meetings were the subject of electronic surveillance. In the course of those meetings, Mr Taleb sought the undercover officer’s advice and assistance in relation to his proposed trip to Syria to fight with Islamic State. There is no doubt that Mr Taleb was actively seeking this advice and assistance rather than being duped into agreeing to do something about which he was not particularly enthusiastic. Even so, most of the “conduct” upon which the prosecution relied was constituted by acts suggested or encouraged by, or at least discussed with, the undercover operative.

3. [20]

   The indictment particularised the preparatory conduct as comprising the following seven acts:

   1. (1)

      Meet, plan and consult with a person who he believed could assist him to travel overseas.

   2. (2)

      Participate in long distance training exercises wearing walking boots and carrying a backpack.

   3. (3)

      Purchase thermal tops, a solar powered phone charger, and a sleeping bag.

   4. (4)

      Purchase military style clothing, gloves and a belt.

   5. (5)

      Attempt to send $300 to a person he believed was a contact in Syria who could facilitate his travel there.

   6. (6)

      Attempt to obtain money on loan from a relative.

   7. (7)

      Attempt to depart Australia on a flight from Sydney International Airport.

4. [21]

   The case was put to the jury on the basis that it only needed to be satisfied of one or more of these particular acts. However, with the exception of the attempt to secure the loan from the relative, there was little controversy at the trial that the offender did the acts alleged. I am satisfied beyond reasonable doubt that Mr Taleb did all seven of these acts. Mr Taleb’s cousin, who was a convincing witness, gave evidence of some attempts to borrow money, which he was told was for a wedding or honeymoon.

5. [22]

   The controversy at the trial was whether these acts were preparatory to committing a foreign incursion offence and whether Mr Taleb intended that they be preparatory to the commission of such an offence. Again, I am satisfied beyond a reasonable doubt that each of the acts was done in preparation to commit a foreign incursion offence (that is, to go to Syria or Turkey to fight for Islamic State to overthrow the government of Syria or establish or maintain a Caliphate under Sharia law). I am also satisfied to the criminal standard that Mr Taleb did these acts intending that they be in preparation to commit such an offence. The fact that the offence would not have happened – because the police were controlling the entire process, and because Mr Taleb was unable to organise or afford his own airline ticket – is not to the point. The crime created by s 119.4 of the Criminal Code is deliberately couched in terms designed to catch preparatory acts done with the requisite intention.

6. [23]

   While the acts particularised in the indictment are mundane acts, it is the intention with which they were performed that lies at the core of their serious criminality. Contrary to some of the submissions made in the trial, the nature of some of the items purchased and located in Mr Taleb’s suitcase on arrest are not typically purchased by your average hiking enthusiast. The solar powered ‘phone charger and military camouflage trousers and jacket were clearly purchased because the undercover agent told Mr Taleb that those items were necessary for the trip to Syria. The act of arranging an international money transfer through Western Union at the Post Office was another act that demonstrated a clear intention on the part of Mr Taleb to do whatever was necessary to facilitate his proposed trip to Syria to involve himself in the hostilities there. Again, while this act was suggested by the undercover officer, Mr Taleb undertook the conduct alone and of his own free will, with the intention to prepare for a future trip to the Middle East to fight in an insurgency.

7. [24]

   The same can be said of all of the acts particularised as preparatory conduct in the indictment. While it is true that the police operation, from beginning to end, was calculated to encourage Mr Taleb to perform these acts, and also true that he may not have thought to do them himself, there is nothing in the evidence to suggest that Mr Taleb was other than a willing participant in the conduct giving rise to the offence.

Had Mr Taleb planned a previous trip to Syria?

1. [25]

   At the trial, the prosecution relied on a number of things said by Mr Taleb that suggested he had previously planned to travel to Syria to join the Islamic State.

2. [26]

   On 5 April 2017 the following conversation between the undercover officer (UCO) and the offender (MT) was recorded by a surveillance device: [12]

3. [27]

   The offender went on to say that he did things in preparation such as going to boxing (Muay Thai) training.

4. [28]

   Again, on 5 April 2017, the following was recorded: [13]

5. [29]

   On 7 April 2017, the offender showed the UCO clothes and boots that he had acquired in preparation for the earlier trip: [14]

6. [30]

   On the same day, the offender suggested that he may have had two previous attempt to make “migration”: [15]

7. [31]

   The offender told the UCO that “another brother was helping me” and that he was organising the ‘plane tickets.

8. [32]

   In his evidence in the trial, Mr Taleb agreed he had said those things, and that he had previous thoughts of travelling, but had made no real plans or preparations. He said “I wanted to migrate, at least for a little while, and I was seeking assistance from someone here to get through” but “couldn't leave because of my marriage”. [16] He said he did not believe that the “brother” had actually bought tickets and asserted “that’s incorrect, from what I remember”. I accept Mr Taleb’s evidence on this issue. Both the content of his answers and his demeanour in providing the evidence was unguarded. He seemed genuinely to be trying to work out a puzzle, or to remember what actually occurred.

9. [33]

   There was also evidence that Mr Taleb had acquired a passport in July 2015 and was accessing Islamic State propaganda at around the same time. There is “chat” on his Facebook page (or Messenger) in June 2015 suggesting he was watching Youtube video’s to prepare himself for “hijrah”. [17]

10. [34]

    From all of this evidence, I am satisfied that Mr Taleb had contemplated or hoped that he might one day travel to the Middle East, fight in a holy war, and become a martyr. I am unable to make a positive finding, one way or the other, as to whether Mr Taleb was telling the truth when he told the UCO that another “brother” was assisting him. The things Mr Taleb said to the UCO and his would-be girlfriend may be unreliable. The UCO encouraged the offender to prove his commitment and there is a real prospect that Mr Taleb was boasting in order to gain credibility with the UCO and his imaginary supporters. However, the other evidence (such as the acquisition of a passport, the Facebook chat and his obtaining certain clothing items) establishes that there was at least some planning directed to travelling to the Middle East to join Islamic State (or a similar organisation). I suspect that no coherent or positive plans were made but the evidence supports the prosecution case, and my factual finding, that Mr Taleb’s desire to join a foreign insurgency pre-dated the involvement of the UCO and that he had made some preparations towards that end.

11. [35]

    It is important to remember that Mr Taleb has not been charged with, let alone convicted of, a second (or third) offence of preparing to commit a foreign incursion offence. He cannot be sentenced for an offence with which he has not been charged. The relevance of this matter to the sentence to be imposed is that it shows he was “radicalised” at an earlier stage and that his conduct was not entirely inspired by the conduct of the UCO or those involved in the first stage of the controlled operation. In making that last observation, and in conclusion, there is no evidence one way or the other as to whether any of the officers or agents involved in the earlier operation may have offered encouragement, advice or assistance in preparing to go overseas and join a violent insurrection.

Mr Taleb’s dilemma: whether to fight with Islamic State or to remain with his sick mother?

1. [36]

   The evidence establishes that Mr Taleb was unsure whether he should travel overseas to join Islamic State or stay at home and look after his mother. The Prosecutor addressed the jury on the basis that this was Mr Taleb’s “dilemma”. On several occasions in his dealings with the undercover agent, Mr Taleb expressed concerns about leaving his severely disabled mother. She gave evidence in the trial and is significantly incapacitated. She is wheel-chair bound, has no movement in her arms and legs and requires full-time care. While part-time carers came to the home, and sometimes she went to a nursing home, Mr Taleb played an important role in taking care of his mother up until the date of his arrest.

2. [37]

   In conversations with the UCO, Mr Taleb seemed reluctant to leave his mother. He sought reassurance from the UCO and “the brothers” that it was okay to do so. The following exchange occurred at the first meeting between Mr Taleb and the UCO: [18]

3. [38]

   In the course of the second deployment, the UCO told the accused that “the brothers” had said “as long as she’s being cared for … that’s, it’s alright” [19] . The UCO told the accused that it’s up to him whether he stayed to take care of his mother, to which Mr Taleb responded “no, no I just wanted to know what comes first”. This raises the obvious question of what would have happened if the UCO had told Mr Taleb that the “brothers’” advice was that he should stay at home and take care of his mother.

4. [39]

   It is clear from these conversations that Mr Taleb experienced uncertainty about going overseas while his mother was unwell and was concerned that he should not leave her. While the resolution of his dilemma was said to be “up to him”, he was re-assured that “the brothers” approved of him going to Syria in spite of his mother’s situation. This reassurance appeared to play an important role in his decision making.

5. [40]

   On the fourth deployment, the UCO asked the accused to consider what would happen if he got turned away at the airport and the following interchange occurred: [20]

6. [41]

   During the later stages of the operation, the accused continued to show a degree of reluctance. On the fifth and final deployment of the UCO, Mr Taleb again raised concerns about leaving his mother: [21]

7. [42]

   At the time of the undercover operation, Mr Taleb had not pledged his allegiance to any particular group or made any decision as to where he wanted to go to fight. One of the conversations included the following: [22]

8. [43]

   Over the course of the operation, Mr Taleb appeared to be perplexed about the group to which he should pledge allegiance and where to travel without options being given to him: [23]

9. [44]

   On the other hand, as I have said, the evidence establishes that Mr Taleb had a pre-existing desire to travel overseas to join the ISIS insurgency. He had spoken about this on the telephone calls in February. In the first deployment, Mr Taleb told the UCO that he needed help with “Hijrah (migration)” [24] and it is clear from the context that this was a reference to going to Syria or Iraq to fight with Islamic State. The accused also spoke to the UCO of a previous attempt or attempts at Hijrah. Mr Taleb told the UCO that he was ready to go “a month, like a couple of months ago”. [25] It is not clear whether this assertion was true but it betrayed Mr Taleb’s pre-existing desire to join Islamic State. There was also evidence, to which I have already referred, that Mr Taleb appeared to be making some plans as early as the middle of 2015.

10. [45]

    It is impossible to know what would have happened if the UCO had provided the offender with different advice; for example, had he told Mr Taleb that “the brothers” thought it was important that he stay and take care of his mother. It is not certain what Mr Taleb would have done, if anything, were it not for the involvement of the UCO. However, on the balance of probabilities, I am satisfied that Mr Taleb would most likely still be living with (and caring for) his mother, playing silly and sometimes violent video games, trying to find a nice girl to marry, struggling with mental illness and, possibly, ruminating on religious matters.

Mr Taleb’s mental illness

1. [46]

   There was no dispute at the trial that Mr Taleb suffers from schizophrenia. There was no dispute that this disease was at least in its incipient stages during the period of his offending.

2. [47]

   At the very least, Mr Taleb had a severe episode around six weeks after he went into custody at which time he held a delusional belief that he had an electronic chip implanted in his head. As a result, he was scheduled by two psychiatrists and transferred to the prison hospital at Long Bay gaol. He was provided with anti-psychotic medication.

3. [48]

   There was a dispute at the trial as to whether he had that delusion when he committed the offence (Dr Nielssen’s opinion) or whether his schizophrenic disease was in its prodromal stages at that time and was brought on by the stress of going into custody (Professor Greenberg’s opinion). The jury’s rejection of mental impairment as a defence does not resolve that issue. On either opinion, Mr Taleb was either delusional at the relevant time or paranoid and in what Dr Greenberg described as the “prodromal” stages of schizophrenia.

4. [49]

   In the course of the sentencing hearing, the Prosecutor cross-examined Dr Nielssen and made submissions suggesting that Mr Taleb did not suffer from schizophrenia at the relevant time. I reject this suggestion. It is contrary to the prosecution’s own expert. Professor Greenberg gave evidence: [26]

5. [50]

   The dispute between the doctors at the trial (on this issue) was not whether Mr Taleb suffered from schizophrenia during the period of offending but rather whether he was diagnosable and/or psychotic at that time. Dr Nielssen thought that he was, while Professor Greenberg was of the view that the disease was in its “prodromal” stage. However, I did not understand Professor Greenberg to be contesting the proposition that the offender had the disease. On the sentencing hearing, Dr Nielssen was cross-examined forcefully by the Prosecutor. He disputed that this was just his “opinion” and said it was the “scientific position” that the offender “had the neurological development substrate of schizophrenia for quite some time and it just didn’t pop out of the ground”. Dr Nielssen is a well-qualified expert and I accept his opinion on this issue. The cross-examination seemed to be based on an erroneous understanding of Professor Greenberg’s evidence. However, this does not resolve the issue of when the psychosis (ie the delusional belief that he had a chip implanted in his brain) commenced or why the jury rejected the defence of mental impairment.

6. [51]

   In rejecting the defence, it is likely that the jury rejected the suggestion that Mr Taleb did not know the nature of his conduct, or that it was wrong, or that he could not control his conduct. That is my finding on sentence. The evidence of his conduct supports a rejection of that aspect of the defence. His furtiveness in parts of the telephone calls, and some of his interactions with the UCO, demonstrated a knowledge that what he was doing was against the law. For example, in the first meeting with the UCO he said he had deleted the contact details from his Telegram app. There was also the use of code in the first exchange of messages. He also cooked up a cover story – that he was a tourist going to Bosnia – which was suggested by the UCO and used upon his arrest. These actions, and others, are inconsistent with the defence of mental impairment as enacted in the Criminal Code. [27]

7. [52]

   The question of when the mental illness became severe, and included delusional beliefs, is more difficult. Prior to his arrest, Mr Taleb constructed a device that was designed to interfere with the transmission of certain electronic devices. The prosecution submitted that this was an attempt to interfere with listening devices that Mr Taleb, in what Professor Greenberg described as a paranoid state, believed were secreted in his home. The defence submitted that he made the device in order to interfere with the chip that he believed was in his brain.

8. [53]

   I am satisfied that Mr Taleb was suffering from a mental illness for some period of time before his incarceration but that the full impact of the schizophrenia, and its manifestation of delusional beliefs, probably came on towards the end of his period of offending or after he went into custody.

9. [54]

   I am satisfied that his mental illness played a significant role in his offending. There were signs of (at least) psychological distress when he was admitted to Bankstown Hospital in 2014. It was after this episode of possible self-harm that he became devoutly religious. He was vulnerable to religious ideas and extremist ideology. This finding is consistent with the report of Dr Nielssen dated 8 May 2019. His illness caused him to be isolated and this increased his vulnerability. His delusional beliefs three years later included the belief that the chip was planted in his brain during his admission at Bankstown Hospital.

10. [55]

    It is not without significance that the jury was directed, in accordance with the provisions of the Criminal Code, that it could not take Mr Taleb’s mental illness into account in considering the fault element of the offence. [28] I accept that the mental illness in this case has an important role to play in the proper exercise of the sentencing discretion. It is relevant in a number of ways.

11. [56]

    In R v Israil, [29] Spigelman CJ said at [22]-[26]:

12. [57]

    In DPP (Cth) v De La Rosa, [30] McClellan CJ at CL summarised the principles at [177] as follows:

13. [58]

    I accept that Mr Taleb’s mental illness has a significant impact on his moral culpability. His conduct must be considered in the light of his psychological vulnerability and, towards the end of his offending, his serious psychiatric illness, albeit perhaps in its formative stages. Mr Taleb’s impairment made him more vulnerable to extremist ideology.

14. [59]

    I accept that Mr Taleb is an inappropriate vehicle for a sentence where significant or undue weight is afforded to the principle of general deterrence. In R v Letteri, [31] Badgery-Parker J (with Gleeson CJ and Sheller JA agreeing) explained:

15. [60]

    General deterrence and denunciation still has a role to play in offences of this kind. In R v Lodhi [2006] NSWSC 691; (2006) 199 FLR 364 it was said at [91]:

16. [61]

    And at [92], “in offences of this kind, as I have said, the principles of denunciation and deterrence are to play a substantial role.” “Offences of this kind” in these passages refers to terrorism and similar offences, such as that with which Mr Taleb is charged.

17. [62]

    However, it must be recognised that persons who are vulnerable because of mental illness are far less likely to be impacted by messages sent by sentencing courts. In any event, Mr Taleb’s arrest and incarceration for two years is capable of sending a salutary message both to him and to others.

18. [63]

    I accept that personal deterrence is also important but, again, I have formed the view that it is less significant as a result of the offender’s mental illness. I am also satisfied that the two years spent in custody to this point is likely to have had a significant deterrent impact on the offender.

19. [64]

    Finally, accepting Dr Greenberg’s view that the stress of his arrest and incarceration precipitated the severe schizophrenic attack, it is clear that imprisonment is more onerous on Mr Taleb than it would be on somebody who was not pre-disposed to a schizophrenic illness. I accept Dr Nielssen’s opinion that “the security regime at the HRMCC creates a very anti-therapeutic environment”, that this would “have an adverse effect on the course of Mr Taleb’s illness and impede his recovery” and that “the conditions of detention are counter therapeutic and would be likely to make his medical condition worse and have an adverse effect on his longer term rehabilitation”.

20. [65]

    Before leaving this evidence, I should record my findings in relation to attacks made on both psychiatrists by experienced counsel on both sides. In cross-examination at the trial, Queens Counsel put to Professor Greenberg that he was not objective and was attempting to give evidence favourable to the prosecution. I reject that contention. An even more strident attack was made on Dr Nielssen by Senior Counsel for the Prosecution in the sentencing hearing. Senior Counsel attacked Dr Nielssen’s objectivity and qualifications to give opinions as to the detrimental effects of incarceration at the “Supermax” prison in Goulburn. In fact, Dr Nielssen played a role in assisting the Coroner in relation to a death in custody that happened at the Supermax. I accept both the objectivity and substance of Dr Nielssen’s evidence on this issue. I accept that some of his language was emotional but I reject the suggestion that this betrayed a lack of objectivity and impacted on his credibility as an expert witness. I have accepted parts, and rejected parts, of the evidence of both psychiatrists. However, I have no doubt that both of them were doing their best to assist the Court in accordance with the Expert Code of Conduct.

21. [66]

    On the basis of those findings, the penalty to be imposed on this young, mentally ill, and vulnerable offender must be at the bottom of the putative range of sentences that might otherwise be imposed for such an offence. This is not to lose sight of the seriousness of the conduct, the fact that Mr Taleb knew what he was doing was illegal, the important role of general deterrence in offences of this kind, or the maximum penalty. Rather, it is to keep firmly in mind the words of Mahoney ACJ in R v Lattouf: [32]

22. [67]

    His mental illness, and the substantial community interest in ensuring that Mr Taleb is treated once he is returned to the community, is also a matter that must be considered carefully in determining the nature of the penalty to be imposed and the structure of the appropriate sentence or penalty.

Maximum penalty

1. [68]

   I have already referred to the importance of the maximum penalty in assessing the appropriate penalty. In Markarian v The Queen, [33] Gleeson CJ, Gummow, Hayne and Callinan JJ said at [30]:

2. [69]

   Their Honours went on to say at [31]:

3. [70]

   Where the legislature prescribes a maximum penalty of life imprisonment, it is indicating in the clearest terms that the offence is of a type that lies at the pinnacle of seriousness contemplated by the criminal law.

Section 16A

1. [71]

   If ever there was a statutory provision calculated to turn the exercise of the sentencing discretion into a check list it is s 16A of the Crimes Act 1914 (Cth). [34]

2. [72]

   The overriding principle, which reflects the common law, is stated in s 16A(1). The sentence imposed on Mr Taleb must be of a “severity appropriate in all the circumstances of the offence”.

3. [73]

   Section 16A(2) provides a list of matters that the court “must” take into account along with “any other matters” relevant to the proper exercise of the sentencing discretion. The list in sub-s(2) does not purport to be exhaustive. In other words, sentencing principles established at common law continue to apply.

4. [74]

   As undesirable, [35] not to say tedious, as it may be considered to be, I will address the relevant factors in s 16A(2):

5. [75]

   The application of this subsection is not without controversy. I am bound by authority that requires a finding of “exceptional hardship” on the offender’s family or dependents before any, or any substantial weight, can be given to this matter. [37] This is so in spite of the apparently plain language of the section and the detailed and persuasive dissenting judgments of Beech-Jones J in R v Zerafa and R v Elshani. [38] I agree with Beech-Jones J that the word “exceptional” should not be read into this section and that s 16A(2)(p) should be applied by according to its terms without needing to find that the impact on the family or dependents amounts to exceptional hardship. [39] However, I am bound to apply the law as it currently stands.

6. [76]

   The offender’s mother suffers from multiple sclerosis; she is a quadriplegic, confined to a wheelchair and requires full-time care. She can barely speak and her condition is deteriorating. For some time before his arrest the offender lived with his mother and was her primary carer. Now the offender is in custody, Ms Merhab has become a permanent resident of an aged care facility that provides her with 24 hour care. Ms Milic, the director of the facility, gave evidence on sentence that suggests that Ms Merhab has few visitors.

7. [77]

   Recordings of two telephone calls between the offender (in custody) and his mother were tendered on sentence. They are very sad. I also observed the offender’s demeanour in the dock change considerably when his mother gave brief evidence in the trial. The bond between mother and son is very strong. I have no doubt that the period in custody has weighed more heavily on the offender because of the illness of his mother and his inability to care for her, or to comfort her as her condition deteriorates. Equally, I am satisfied that the impact on Ms Merhab of her son’s incarceration is significant.

8. [78]

   Unconstrained by authority, I would give these matters significant weight in determining the appropriate penalty to be imposed on this young offender. However, based on the majority position in the New South Wales Court of Criminal Appeal and the facts and circumstances of cases where such matters have been argued to be exceptional but were held not to be, [40] I am unable to find that the impact on Ms Merhab constitutes “exceptional hardship” for the purpose of the application of the section. The hardship on the offender’s mother is not a matter that can be taken into account, let alone be determinative, in deciding whether any option other than a gaol sentence is appropriate.

9. [79]

   In some cases, such matters have been said to be relevant to the length of the non-parole period. [41] However, the provision in s 19AG of the Crimes Act 1914 (see below) means that the matter can play no role there either.

10. [80]

    Section 16A(3) requires a sentencing judge to “have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order.” An affidavit was provided by Senior Assistant Superintendent Geoffrey Poulsen concerning conditions at the High Risk Management Correctional Centre (HRMCC), sometimes referred to as “Supermax”. Mr Poulsen could not predict or comment on the likely conditions of incarceration in the future. However, he indicated that people charged with terrorism are usually held at the HRMCC initially although they may then progress through the classification system.

11. [81]

    I have also considered the kinds of conditions that could be imposed under various orders pursuant to the Crimes Act 1914 or under the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) which is picked up by s 20AB of the Crimes Act 1914 (although some sentencing options under the state legislation are not available for terrorism offences). [42]

12. [82]

    While not in terms covered by the provision in s 16A(3), the pre-trial conditions of incarceration are also relevant. The evidence establishes that the offender has been incarcerated at times in quite severe conditions. Professor Greenberg was of the opinion that his incarceration caused his incipient schizophrenia to manifest as extreme delusional psychosis. I have already set out Dr Nielssen’s opinion that the conditions of incarceration at the HRMCC are anti-therapeutic.

Statutory requirement in setting a non-parole period for certain offences

1. [83]

   Section 19AG of the Crimes Act 1914 provides:

2. [84]

   Section 19AG applies to the present offence because “terrorism offence” is defined in s 3 as including an offence under Part 5.5 of the Criminal Code. Part 5.5 relates to “foreign incursions and recruitment” and includes the offence under s 119.4.

3. [85]

   However, the section only applies if the court “imposes a sentence” for the offence. The section is prescriptive and imposes a fetter on a sentencing Judge in setting the non-parole period and, in turn, allowing for an extended period of parole or supervision after release. [43] However, s 19AG does not (i) provide for any minimum term of imprisonment or mandate that a gaol sentence must be imposed in relation to offences otherwise caught by its terms, (ii) prohibit the making of an order under s 20(1) of the Crimes Act 1914, or (iii) eliminate or override the requirements of s 17A of the Crimes Act 1914.

Imprisonment remains the sentencing option of last resort

1. [86]

   Notwithstanding the maximum penalty and the provisions in s 19AG, s 17A of the Crimes Act 1914 remains a critical provision:

2. [87]

   This section is also a reflection of one of the most important principles of the common law of sentencing.

Protection of the community

1. [88]

   Another important principle of the common law, not referred to in the statute but not excluded by it, is the requirement that the “protection of society” is a material factor in determining a proper sentence. [44] The kinds of offences dealt with in those parts of the Criminal Code dealing with terrorism (and similar) offences fall classically within the ambit of this important object of sentencing. The Court must be astute to take into account the protection of the community from terrorist attacks and similar outrages in formulating the appropriate sentencing response to offences committed by offenders with extremist views who have demonstrated a willingness to commit crimes involving a manifestation of those views. This is such a case.

2. [89]

   The best way of protecting the community will vary from case to case. As the Court emphasised in Veen (No 2), the sentence must be proportionate to the facts of the crime and the individual circumstances of the offender. In some cases – for example, where an offender appears to be incorrigible – the best or only way to protect society may be to impose the longest possible period of incarceration. However, in many cases the better way to protect society is to foster the rehabilitation of the offender even where the result appears to be a lenient one and may prove to be unpopular amongst commentators who appear to take the view that no sentence is ever long enough. [45]

3. [90]

   As King CJ said in The Queen v Osenkowski: [46]

4. [91]

   Striking the balance can be difficult and, as King CJ observed, the decision to adopt a lenient approach is often intuitive, albeit based firmly in the evidence available to the sentencing court.

“Entrapment”

1. [92]

   Another matter not referred to in the catalogue of factors in s 16A(2), but which is established at common law to have possible relevance to sentencing, arises in cases where an offender’s conduct is “facilitated” by the police investigators. In some of the cases, this is referred to as “entrapment”. Entrapment is not a defence in Australia, but it has been held that it can be a mitigating factor on sentence depending on the extent to which the offender commit acts that they would not otherwise have committed. [47]

2. [93]

   The principles discussed in the earlier cases are applicable in Mr Taleb’s case. While the offender was not an “unwary innocent”, he was vulnerable to the suggestions and importuning of the UCO. Most or all of the acts alleged in the indictment were encouraged or suggested by the UCO. He was also encouraged to display a commitment to the cause. Without the assurances of the UCO that the brothers would arrange his airfare and passage, it is unlikely that the offender would have travelled to the Sydney Airport.

3. [94]

   Dr Nielssen, no doubt conscious of, and sympathetic to, the offender’s vulnerability due to his fragile mental stability, described the actions of the UCO as “dispiriting” [48] and was of the view that “unseemly pressure” was placed on the offender. While those views are understandable, I am unable to conclude that the police investigators conducted themselves improperly or unlawfully. Indeed, an attempt to exclude this evidence on that basis was rejected in advance of the trial. However, I am satisfied (on balance) that most of Mr Taleb’s actions were undertaken because of the encouragement and incitement of the UCO. That is precisely what the controlled operation authority authorised the UCO to do. I am satisfied that the particular acts which form the basis of the charge would not have been carried out if it were not for the encouragement of the UCO.

4. [95]

   It is well established that each case must be considered on its own facts and that only limited assistance can be derived from the outcomes in other cases or from any statistical database recording the penalties and sentences imposed in other cases under the same, or similar, provisions. [49] That is particularly so where, as here, there have been very few cases decided under the relevant provisions.

5. [96]

   The New South Wales Judicial Commission’s JIRS system records only one sentence imposed under s 119.4. That was an offence under sub-s (5) of providing goods or services to support the commission of a foreign incursion offence. Like the present case, the offender was exposed to a maximum penalty of life imprisonment. In the case recorded on the database a sentence of 2 years and 3 months with a non-parole period of 1 year, 8 months and 1 week was imposed. It appears that this was the decision of Davies J in R v EB [2018] NSWSC 201.

6. [97]

   The Prosecutor provided a helpful schedule of seven cases (including EB) and brought my attention to a very recent sentencing decision of Croucher J in Cerantonio & Ors. [50] I considered the reasons and outcomes in the cases of Biber, Elomar, Alqudsi, Mohamed, Succarieh and El Sabsabi. [51] I also considered the imposition of a Community Corrections Order by McCallum J in Lelikan although the offender in that case was acquitted of the foreign incursion offence and was sentenced in relation to his membership of a terrorist organisation. [52] Some of these cases were decided before the increase in the maximum penalty but all of them provide some insight into the seriousness with which the courts treat such offences.

7. [98]

   In some of the cases, a community based order of different species were imposed (or took effect from the date of sentence) in circumstances where the offender had spent some period of time in custody before sentence. However, those cases (eg Elomar; El Sabsabi) were decided when the maximum penalty remained 10 years. Other cases (eg Alqudsi and Succarieh) involved far more serious criminality. A number of the cases involved naive and youthful offenders with strong subjective cases. None involved the unique combination of circumstances, and in particular the onset of severe psychiatric illness at around the time of the offending or as a result of the incarceration, that exist in the offender’s case. The closest case on the objective facts and personal circumstances is probably EB.

R v EB [2018] NSWSC 201

1. [99]

   EB was a juvenile offender aged 17 years at the time of the offence for which he was sentenced. He asked that another offence, committed when he was 16, be taken into account pursuant to s 16BA of the Crimes Act 1914. The offence taken into account was an offence under s 119.4 (which is to say, the same offence for which the present offender was convicted). The facts are set out in some detail in Davies J’s judgment on sentence from [9]-[38].

2. [100]

   The preparation offence (not the subject of sentence, but taken into account) was committed in January 2015 and involved EB obtaining an airline ticket to Turkey, sending money overseas and attending Sydney Airport to travel overseas. His intention was to travel from Turkey to Syria to join the Islamic State. He was arrested at the airport and his ‘phone was seized. A great deal of extremist material was subsequently located on his telephone. In the meantime, he was released and committed the offence under s 119.4(5) for which he was sentenced. The supporting a foreign insurgency offence (for which EB was sentenced) involved EB communicating with a known extremist and with a person who had travelled from Australia to Turkey (Amin Elmir). The communications were designed to assist and encourage Mr Elmir “in any way that he could” to travel from Turkey into Syria to join the insurgency. There were 14 text messages over a period of around a month in May and June 2016. When Mr Elmir looked like he might return to Australia without crossing into Syria, EB “was determined” to convince him to stay. He also encouraged Mr Elmir to carry out hostile and violent acts against the government and military of Turkey.

3. [101]

   EB pleaded guilty and Davies J indicated that he received a 25% reduction for what his Honour described as the utilitarian value of the plea. [53]

4. [102]

   His Honour said that it would require an “extremely minor infraction” of s 119.4 for a sentence other than imprisonment to be appropriate. [54] While I agree with that statement, I would add that the personal circumstances of an offender, particularly youth, vulnerability, mental illness and a lengthy period of pre-trial custody may also mean that a case that otherwise warrants a gaol sentence may appropriately be dealt with by resort to one of the non-custodial alternatives provided by the Crimes Act 1914 or the State sentencing legislation picked up by the Commonwealth sentencing regime.

Factors relevant to an assessment of objective seriousness

1. [103]

   In EB, Davies J referred to helpful statements of principle made by other judges of this Court in sentencing for terrorism and foreign incursion offences. In R v Khalid and Ors, [55] Bellew J sentenced a group of offenders for conspiring to carry out acts in preparation for the commission of a terrorism offence. His Honour said at [25]:

2. [104]

   I note there is an appeal pending from Bellew J’s decision but the statement of relevant factors appears to be uncontroversial.

3. [105]

   In R v Alqudsi, [56] Adamson J was dealing with an offender convicted of seven counts of performing services for people intending to enter Syria to engage in armed hostilities. It was an earlier form of the offence and the maximum penalty on each count was 10 years. Her Honour said at [83]:

An assessment of Mr Taleb’s objective gravity and moral culpability

1. [106]

   While the offence is obviously a very serious one, I am satisfied that the offender’s objective criminality falls towards the bottom end of the wide range of conduct potentially criminalised by s 119.4 of the Criminal Code. Factors supporting that finding include:

2. [107]

   None of this is meant to categorise Mr Taleb as “an unwary innocent”. [57] He clearly knew that what he was preparing to do was illegal. The information available to police made it appropriate for the offender to be targeted by such an operation and the telephone conversations recorded before the UCO’s involvement show that he had, by that stage, formed the desire to fight and die for Islamic State. Rather, it is to compare the current offender with an offender whose actions are all his own, who makes sophisticated preparations and arrangements, or sends large amounts of money overseas, and who has the will and the means to carry out their plans to travel overseas and fight in a foreign incursion.

3. [108]

   Against those matters tending towards a finding that the offence is at the lower end of the putative range of seriousness, I have also taken into account matters that point in the other direction. These include the fact that the conduct continued over two months and involved a series of deliberate acts performed with the intention of preparing to commit the foreign incursion offence. While the true extent of the offender’s “radicalisation” is difficult to gauge, there was a disturbing amount of radical and extreme material on his telephone and he had obviously sought out that material by subscribing to particular ISIS channels on Telegram and “liking” items concerning radical and violent Islam on Facebook. While I accept his evidence that he had not viewed or read all of the material on his telephone, the inference is irresistible that by early to mid-2017, he had become a firm believer in radical or extreme Islamism and believed he was willing to die for that cause. He said he “may have watched” some of the videos of executions, [58] and later agreed that he had “seen some executions on those videos”. [59] There was evidence that when a friend or associate (who cannot be named) visited his home, Mr Taleb yelled out that he was watching ISIS videos.

4. [109]

   In addition to those matters, and to repeat an earlier finding, the impact of the offender’s mental illness (albeit perhaps in its formative stages) during the period of the offending convince me that Mr Taleb’s moral culpability is not particularly high compared with other offenders whose conduct is or may be caught by the offence in s 119.4.

5. [110]

   As I have said, section 19AG of the Crimes Act 1914 does not mandate that an offence that falls within its terms will necessarily result in a sentence of imprisonment. However, as Davies J explained in EB, due to the nature of such offences, the legislative purpose behind their creation and the applicable maximum penalty which has been increased relatively recently to life imprisonment, a sentence of imprisonment will usually be the only appropriate outcome. Where such a sentence is imposed, the non-parole period will be 75% of the total sentence. [60]

6. [111]

   As a comparison with the case of EB demonstrates, if a sentence of imprisonment were imposed on this offender, the result would be that the non-parole period (or total sentence) would already have expired, or would not be very much longer than the period of remand. The result of the application of s 19AG would mean that there would be a very short period (if any) for the offender to be supervised on parole. That would be an unsatisfactory outcome. This is a case where the interests of the community require an extended period of supervision on parole including structured psychiatric or psychological intervention. It is not a case where a control order under Division 104 of the Criminal Code would necessarily be made, assuming that such an order is appropriate in the circumstances of the present offender. In any event, the sentencing outcome cannot be dictated by a prediction as to whether such an order would be applied for or made. Further, as the prosecution submitted in written submission filed after the sentence hearing, the existence of the “control order is not relevant to the sentencing exercise, it is a decision which may be made on application by police at a subsequent date”. [61]

7. [112]

   The benefits of fostering the rehabilitation of an offender in the sentencing process have been widely recognised. In R v Pogson and Ors [2012] NSWCCA 225, McClellan CJ at CL and Johnson J said at [122]:

8. [113]

   The successful rehabilitation of an offender is the most well founded way of ensuring the long-term protection of the community. In Yardley v Betts (1979) 22 SASR 2018, King CJ said at 112-113: [62]

9. [114]

   An important factor in the present case is protecting the community. The most effective way of achieving this is to impose a penalty that is calculated to foster the offender’s rehabilitation. Although Superintendent Polson cannot say where Mr Taleb would be incarcerated if he receives a further term of imprisonment, I accept the evidence of Dr Nielssen that incarceration is likely to be anti-therapeutic in terms of the management of Mr Taleb’s mental illness. This is a case where a long period of supervision is required to ensure compliance with counselling and medication regimes. This will reduce the risk of re-offending. There is a concern that if Mr Taleb is locked up with other inmates charged with terrorism offences, the risk of radicalisation is increased in spite of the existence of programmes such as the one of which Ms Prince provided evidence on sentence. As to this, see the comments of Davies J in EB where his Honour ordered that the sentence be served in a juvenile detention centre to decrease this risk. [63]

10. [115]

    Before imposing a sentence of imprisonment, I must be satisfied that no other sentence is appropriate in all of the circumstances of the case. I am not satisfied that a sentence of imprisonment is the only appropriate penalty, especially in view of the fact that Mr Taleb has already spent two years in gaol. Giving significant weight to the fact that incarceration is particularly onerous due to the offender’s mental illness (which was exacerbated by his incarceration according to Professor Greenberg), I am satisfied that the time already spent in custody is sufficient punishment and that the appropriate order now is to release the offender on strict conditions. If Mr Taleb does not comply with the conditions, he will be required to appear for sentence.

11. [116]

    Those conclusions are guided by the mitigating features of the offence itself, the psychiatric illness of the offender and the period of time already spent in custody.

12. [117]

    Section 20 of the Crimes Act 1914 provides:

13. [118]

    While an order under s 20(1)(b) is prohibited under s 93AG, the latter section only applies where a sentence of imprisonment is imposed. It does not prevent the Court from making an order for the conditional release of the offender under s 20(1)(a). I propose to make an order under that section with a number of conditions.

14. [119]

    In deciding to make this order, I have also applied the provision in s 16A(3). That is, I have had regard to the nature and strictures of the conditions that may apply to the order under s 20(1)(b). While not strictly arising under s 16A(3), I have also given some weight to the onerous nature of the offender’s incarceration pending the conclusion of the criminal proceedings.

15. [120]

    Moudasser Taleb, for the offence of doing conduct preparatory to the commission of a foreign incursion offence, you are convicted. Without passing sentence, I order that you enter a recognisance pursuant to s 20(1)(a) of the Crimes Act 1914, without sureties, to be of good behaviour for a period of 5 years. The conditions are as follows:

    1. (1)

       To be of good behaviour for a period of 5 years.

    2. (2)

       To appear before the Court, for sentence or otherwise, if called upon at any time in respect of any breach within that period.

    3. (3)

       To report to the Bankstown Office of Community Corrections (Probation and Parole) within 24 hours of your release.

    4. (4)

       To comply with the following conditions for a period of 2 years: