R v Azari (No 12)

Omarjan Azari stands to be sentenced for two terrorism offences he committed in Sydney in 2014 arising out of his support for the terrorist organisation Islamic State, a declared terrorist organisation.

On 16 December 2015, he pleaded guilty in the Local Court to a charge that between about 18 July 2014 and about 18 September 2014 at Parramatta and elsewhere he attempted to make US$9000 available, directly or indirectly, to Islamic State knowing that it was a terrorist organisation. This offence contrary to ss 11.1(1) and 102.6(1) of the Criminal Code (Cth) carries a maximum penalty of 25 years imprisonment. I shall refer to this count as the “the funding offence”.

On 11 October 2018, the offender was arraigned before me on an indictment alleging that on 15 September 2014, at Parramatta, in the State of New South Wales, he did an act in preparation for, or planning, a terrorist act or acts, namely he did participate in a telephone conversation with Mohammad Ali Baryalei in which he discussed a plan for a terrorist attack in Australia. The offender pleaded not guilty to the charge and a trial proceeded before a jury. On 2 November 2018, the jury returned a verdict of guilty. This charge, brought pursuant to s 101.6(1) of the Criminal Code, carries a maximum penalty of life imprisonment. For ease of reference I shall refer to this count as the “the planning offence”.

In addition to these two offences, the offender also makes admissions pursuant to s 16BA of the Crimes Act 1914 (Cth) in relation to two further funding offences under s 102.6(1) of the Criminal Code and asks the court to take them into account when passing sentence for the funding offence. Those two offences relate to his actions on 6 and 7 August 2014 when he arranged for a total of $6000 to be transferred to Pakistan intending for it to be made available, directly or indirectly, to Islamic State.

It is necessary for me to determine the facts upon which the offender is to be sentenced in relation to both offences. In relation to the planning offence the facts must be consistent with the verdict of the jury: R v Isaacs (1997) 41 NSWLR 374 at 377–378. I may not take facts into account in a way adverse to the interests of the offender unless they are established beyond reasonable doubt, whilst it is sufficient that facts favourable to the offender be established on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ).

No statement of facts was tendered on sentence in relation to the funding offences. It was submitted that I would find the facts in relation to these three matters based on the trial evidence as, consistent with his plea of guilty, the offender fully admitted the funding offences and those admissions were before the jury.

The Crown case at trial relied upon surveillance evidence, lawfully obtained intercepted telephone calls which were played in court, expert evidence from interpreters and a scholar in Middle Eastern politics, police evidence, the evidence of two civilian witnesses known by the pseudonyms M2 and Ahmed Hussain and two separate statements of formal admissions made by the offender under s 184 of the Evidence Act 1995 (NSW). The offender also gave evidence at his trial and was cross-examined. The facts upon which the offender stands to be sentenced have been found by reference to all of the evidence called at the trial.

The evidence establishes that in 2013 the offender attempted to travel to Syria to fight with the terrorist organisation Islamic State but was prevented from doing so. In 2014, he attempted to provide funds to Islamic State in Syria and was in frequent telephone contact with a senior Australian Islamic State member who was then in Syria, Mohamed Ali Baryalei. On 15 September 2014, he participated in a telephone conversation with Baryalei in which terrorist acts to be committed in Australia were planned.

Expert evidence was adduced at the trial concerning the emergence of the terrorist organisation Islamic State against the backdrop of the events in Syria in 2011 which developed into what became known as the Syrian Civil War. In around 2012, the organisation known as the Islamic State in Iraq (“ISI”), which was an affiliate of Al-Qa’ida created a group in Syria called “Jabhat Al-Nusra”. In April 2013, Abu Bakr Al-Baghdadi declared that Jabhat Al-Nusra was independent of Al-Qa’ida and it changed its name to ISIS or ISIL and eventually Islamic State. This resulted in a split between Islamic State and Jabhat Al-Nusra.

The Australian Government declared a number of groups operating in Syria at that time as being terrorist organisations under the Criminal Code. Jabhat Al-Nusra was declared a terrorist organisation in June 2013, ISIL (“Islamic State of Iraq and the Levant”) was declared a terrorist organisation on 14 December 2013 and Islamic State was listed as a terrorist organisation on 11 July 2014.

Islamic State’s objective was to create a caliphate, that being, a geographical area in parts of Iraq and Syria ruled by a caliph or Islamic religious leader. It declared a caliphate on 29 June 2014 in relation to areas it controlled which were mostly comprised of western and north-western Iraq and eastern and parts of north-eastern Syria. Islamic State went further than simply promoting extremist religious views – it promoted intolerance to those who did not conform to those views through extreme violence.

Islamic State called for Muslims to travel to Syria and Iraq to create the perfect Islamic State and fight to establish it. It did so by using social media networks to convince young Muslims that they had a religious obligation of “fard-al’ayn” to undertake jihad or armed struggle against the forces of oppression. Foreign fighters from countries around the world travelled to Syria and Iraq to enter into the Syrian conflict particularly with Islamic State and Jahbat Al-Nusra.

In addition to the arrival of foreign fighters in Syria and Iraq, money was being sent from Western nations to support those foreign fighters on the ground. This was facilitated in a number of ways including money transfers through currency exchange businesses.

Whilst these events were unfolding in Syria, the offender was a young man residing in Sydney. He was born in Afghanistan in either 1992 or 1994. He came with his family to Australia through Pakistan on a humanitarian visa when he was either 6 or 8 years’ old. He is now an Australian citizen. He was raised by his parents as a Muslim and he described himself as being “devout” throughout high school. He gave evidence that when the Syrian War commenced in 2011 he began developing an understanding of politics. In about 2012, he began preaching his faith publically in Parramatta. It was during this time as a “street preacher” that the offender came into contact with Baryalei.

Baryalei was also an Australian citizen born in Afghanistan. After working as a bouncer in Kings Cross and then appearing as an extra on the television show Underbelly: The Golden Mile he became a devout Muslim. In 2012 both Baryalei and the offender would meet every Sunday street preaching.

In April 2013, Baryalei travelled to Syria via Turkey and briefly joined Jabhat Al-Nusra. Shortly after Abu Bakr Al-Baghdadi declared the existence of the Islamic caliphate, Baryalei joined Islamic State.

Meanwhile, back in Australia, the offender also became supportive of Islamic State. He became involved with a number of other men in Sydney who shared his radical religious and political views. These men were also supportive of Islamic State and other militant Islamist groups such as Jabhat Al-Nusra. They referred to their group by the word “shura”, which is the Arabic word for a consultative council or body. The senior member of the shura was Hamdi Alqudsi who was in regular communication with Baryalei in Syria. The members of the shura included Tyler Casey, Ali Al-Talebi, Milad Atai, Ahmed Saiyer Naizmand, Kawa Alou, Waris Azari (the offender’s brother) and others. During the period from 2013 until the offender’s arrest on 18 September 2014 the shura showed its support for Islamic State by meeting regularly, travelling to Syria or Iraq to fight with Islamic State or Jabhat Al-Nusra, collecting funds to make them available to those wishing to travel to join Islamic State and liaising with Baryalei in Syria.

Those in the shura were given or took “kunya” names. Evidence was called that a kunya name is a type of nickname in Arabic. A kunya name is most commonly given when a person has a child and the kunya name describes the person as the parent of that child. The kunya name is derived from placing the word “Abu” (meaning father) before the name of his child. All of the members of the shura who supported Islamic State took a kunya name even if they did not have children. A schedule of these names was tendered at the trial. Relevantly, the offender was known as Abu Yazid and Baryalei was known as Abu Omar. The members of the shura are often referred to by their kunya names in the intercepted telephone calls and surveillance device recordings.

I am satisfied that these members of the shura adopted particular kunya names so as to avoid detection and show their support for Islamic State.

Baryalei was in frequent telephone communication with Hamdi Alqudsi whilst he was in Syria throughout 2013. Members of the shura were able to travel to Syria assisted by Alqudsi in Sydney and Baryalei in Syria. Throughout 2013 the offender continued to meet with Alqudsi and other members of the shura.

Ahmed Hussain was a member of the shura at that time. He gave evidence for the Crown at the trial having pleaded guilty and been sentenced in relation to unrelated terrorism offences. He gave evidence, which I accept, that he, the offender and Naizmand had originally planned to travel to Afghanistan to engage in fighting for the Taliban. This plan changed in 2013 when the men were offered the opportunity through the shura to travel to Syria instead. The shura obtained money for its members to travel to do so. There were a number of meetings at Alqudsi’s home and elsewhere where such travel was discussed. It was arranged that the offender would join Baryalei’s group in Syria. Hussain, Naizmand and the offender were each given $7000 by Alqudsi. They were to travel in smaller groups to avoid detection. Members of the shura started travelling to Syria and some were successful in doing so.

The offender signed his passport application in 3 April 2013. On 29 June 2013, the offender, Hussain and Naizmand booked return flights to Singapore so as to mislead the authorities into believing that they were intending to return to Australia when in reality they were planning to travel to Turkey and then into Syria. It was proposed that the three men would fly to Singapore on 2 July 2013.

The authorities became aware of the proposed travel by the offender and his co-travellers and attended all of their homes. On 12 August 2013, the Department of Foreign Affairs and Trade issued a letter to the offender advising him that his passport had been cancelled due to suspicion that he would be likely to engage in conduct that might prejudice the security of Australia or a foreign country if he were to hold an Australian passport.

Hamdi Alqudsi attempted to travel to Syria in late 2013 but was arrested on 3 December 2013 and charged for various offences under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (now repealed). Alqudsi was released on conditional bail with one of the conditions being “to not make any international phone calls or communicate with anyone overseas by any means”. One of the bail conditions, as varied on 13 December 2013, required him “to provide his mobile phone number to the Australian Federal Police and that be the only phone number he uses”.

I am satisfied that, sometime after Alqudsi was arrested, the offender assumed the role of communicating with Baryalei by mobile telephone on behalf of the shura and reporting back to Alqudsi.

The offender continued to meet with the other members of the shura in 2014. On 15 May 2014, his older brother Waris Azari flew to Port Moresby. Although his precise travel arrangements thereafter are unclear, Waris Azari subsequently joined Islamic State in Syria.

By July 2014 the offender and other members of the shura were under close surveillance by authorities. A surveillance schedule was tendered at the trial outlining the offender’s movements during this time. That evidence showed that he spent time with other members of the shura at the Parramatta Mosque, at Arabic bookshops and playing soccer. Some of the surveillance during this period also records the offender’s attempts to transfer funds to Islamic State.

On 18 July 2014, between about 4:38 pm and 4:47 pm, the offender and Naizmand were recorded by CCTV converting Australian currency notes in a pink plastic bag into US currency notes at the Red Rate Money Exchange in Auburn.

On 25 July 2014, at about 11:48 pm, a man referred to as “Shabir Ahmad” telephoned the offender from Pakistan and the two discussed what was required for the offender to enable funds to be sent to him in Pakistan. The offender told him that the shura had agreed to send $3,500 to him.

On 28 July 2014, Baryalei telephoned the offender. As with all of the telephone conversations between Baryalei and the offender after that time, they were conducted in English and Dari with some Arabic expressions also used. A dispute arose during the trial as to whether 28 July 2014 was in fact the first time that the two men had ever spoken on the telephone after Alqudsi’s arrest. The offender claimed that it was, whereas the Crown case was that there must have been prior communication between the two men given the content and tone of this first recorded telephone call. I am satisfied that the reference in this call to matters earlier discussed establishes that this was not the first telephone conversation between the two men after Alqudsi’s arrest. Beyond that, it is not possible for me to be satisfied precisely when it was that such contact commenced. I am satisfied that it was some time before 28 July 2014.

In the 28 July 2014 telephone conversation Baryalei told the offender that he was busy working with his “commander”. The offender told him he had been in religious seclusion in Auburn and that he was storing some money at his home. I am satisfied this is a reference to the funds he had exchanged at the Red Rate Money Exchange on 23 July 2014. Baryalei told him he was “strapped” and in need of the funds and they discussed arrangements for the funds to be transferred to him. The offender told him that he was attempting to contact a person who would perform the money transfer.

Other matters discussed included Baryalei telling the offender of an upcoming “martyrdom operation” involving three “brothers” that would occur later that day or the following day. The two men also discussed the whereabouts of persons who had travelled to Syria and were fighting against the “Nussayris” (Syrian government troops) at an airport. Baryalei asked the offender whether he had spoken to his brother Waris and the offender replied that he had not. Baryalei then stated that: “there’s a lot of work on, you know, here in both places, in both the land of AI-Sham, in both Syria and Iraq is busy. A lot – a lot of things going on”. The offender spoke of Boko Haram and noted how it had given the pledge of allegiance to Abu Bakr Baghdadi. They also discussed how some members of the Islamic community in Australia were critical of Islamic State.

On 28 July 2014 at about 11:13 pm, the offender’s brother Waris Azari telephoned his family home in Sydney from Syria. The offender was present at that time. Waris spoke to his parents and also spoke to the offender. He told the offender that he had completed a period of training and had been selected by “the State” for a further three months of “special forces” training which he had commenced at Tabqah, near Raqqah. The offender advised Waris that “Abu Omar” (Baryalei) would be in Raqqah shortly. When Waris spoke to his mother she was clearly upset. She begged him to go to Afghanistan and get married instead. The offender passed on greetings from the “boys” in the shura. Waris told the offender that his kunya name was “Abu Bakr Al-Australi” and that “everyone changes their name here…if they come”.

The offender next spoke to Baryalei on 31 July 2014. That conversation focussed on arranging the transfer of funds to Islamic State. The offender asked Baryalei whether he knew of any women in Australia who could accompany another member of the shura to depart Australia to join Islamic State, so as to avoid suspicion. The offender told Baryalei about his conversation with Waris and his selection for the special forces. He said that “out of three thousand people he got chosen amongst the sixty to be in this special force”. He indicated that at the completion of the training Waris wanted to join Baryalei because “he’ll be trained properly”. The two men also discussed their hopes that their planned activity involving the sending of money would avoid detection by Australian authorities, with the offender saying “here it’s getting very, very hard, brother”. The offender then told Baryalei about “the other big brother” sending greetings to Baryalei and that there was stuff that he wanted to tell him but could not because he was concerned about “heat on the phone and stuff”, and that he was told “not to say it anyways”. The reference to the other big brother is a reference to Alqudsi.

Later that same day at 7 pm Baryalei called the offender again. They discussed difficulties the offender was having in procuring third persons to perform the transfers of funds.

There were further telephone conversations between Baryalei and the offender on 2 August, 4 August (2 calls), 7, 8 and 13 August (three calls) and 20 August 2014 during which the transfer of funds was discussed.

Ultimately the offender approached a young man, M2, to transfer the funds. M2 met the offender between late 2013 and early 2014 at the Parramatta Mosque at a time when he was a university student. On 6 August 2014, he was contacted by the offender and asked to assist by sending money overseas. The offender told him that he trusted him and that he needed somebody over 18 years of age to assist. At some stage later that day M2 and the offender drove to the Parramatta Mosque for prayers. The offender, Al-Talebi, M2 and Atai met in the underground carpark of the Mosque. Al-Talebi handed an envelope containing $6,000 to the offender who then passed it to M2. M2 was given US$9,000 in a pink bag which was also to be transferred overseas. Al-Talebi also handed M2 a booklet entitled “How should we be pleased in staying behind?” and told him he should read it.

On 6 August 2014, after receiving the money, M2, Atai and the offender attended the Ria Money Transfer in Parramatta where he and the offender discussed with staff the requirements to transfer funds to Pakistan. By this time, the offender had told M2 that the money was for the purpose of getting people into Syria to become foreign fighters. They left the Ria Money Transfer and made their way to the Travelex Agency in Parramatta. M2 gave evidence that the offender provided him with the details of the transfer which involved sending the money to “Shabir Ahmad” in the Pakistani city of Peshawar. M2 was advised that he could only transfer $3,000 in one transaction. He transferred this amount, telling the offender about the transfer limitation and provided him with a receipt.

On 7 August 2014, the next day, M2 transferred the other $3,000 at a newsagency in Auburn using a Western Union Money Transfer. He used the same details as the first transfer and thereafter met with the offender and provided him with a receipt. The offender then told him that the US money needed to be transferred to Turkey through the Bristol Ria currency exchange in Lakemba. A new name, “Mahmoud Al-Khiari”, was provided. M2 said that he assumed the transfer to be for the same purposes. The following day, M2 went to the Bristol Rea currency exchange with a friend from university. He was informed that the transfer would incur a fee of $600 so he did not proceed. He kept the final $9,000 in the pants pocket of his cargo shorts.

Following the two successful transfers totalling $6,000, the offender told M2 that there had been issues in the collection of the money in Pakistan in light of regulations. M2 said that the offender asked him to refund the transactions but that he did not do so and that he had no further involvement in those transactions.

These two transfers of $3000 each form the basis of the two s 16BA charges the offender has admitted to whereas the offender’s ongoing efforts to transfer the US$9000 forms the basis of the funding offence to which he pleaded guilty on indictment.

M2 informed the offender that he had not completed the transfer of the US$9000 due to the associated fee. The offender told him to exchange the money for Australian currency. M2 did not do this. As it turned out, his mother found the money in his cargo shorts and took it from him. M2 told the offender that his family had found it. The money was ultimately seized by police when, on 18 September 2014, they searched his home. It was still in the same pink bag.

Before making the first money transfer, M2 asked the offender whether it was illegal but the offender said “[n]o, just say in the name of God and do it, there’s big rewards for someone that does something like this.”

In 2014 Agim Kruezi resided in Queensland. He had previously resided in Sydney and was known to some members of the shura. On 9 March 2014 he was stopped by Australian Customs and Border Protection officers at Brisbane airport attempting to fly to Syria via Kosovo with the intention of engaging in hostile activities in the Syrian conflict. He was not charged at that time.

Kruezi later travelled from Brisbane to Sydney on 15 August 2015 and spent time in the company of the offender and other members of the shura before returning to Brisbane on 27 August 2015.

Hussain gave evidence that in mid 2014 Kruezi came to his home in Sydney with Al-Talebi. At that time, Kruezi asked Hussain if he or someone he knew could assist in obtaining a firearm. Hussain’s evidence was that he said he had never inquired about it but that he could not imagine it being too hard.

Hussain saw Kruezi on another occasion about two days later at a prayer hall in Granville. The offender and Al-Talebi were also present. At some stage the offender said to Hussain that Kruezi had “the best plan” and that he wanted to access a firearm to carry out an attack in Queensland. Hussain said that ultimately Kruezi did get a firearm and that, while he did not know exactly how he got it, it was obtained with the assistance of the shura. He said that he saw Kruezi on only one other occasion, at the Mosque in Granville, where Al-Talebi informed him that they were taking Kruezi out to say goodbye.

Kruezi was later arrested on 10 September 2014. Searching officers located a shortened .22 calibre rifle and ammunition, a compound bow and arrows, machetes and other knives, a jerry can containing 10 litres of petrol and a collection of glass bottles and corks suitable for use in the manufacture of improvised incendiary devices. They also found the Islamic State flag, documents and electronic items containing extremist electronic documents, video and audio recordings and photographs. Kruezi was arrested and subsequently charged by police with terrorism offences alleging he did acts preparing for or planning a terrorist act and also in connection with his attempt to travel in March 2014. He pleaded guilty and has been sentenced.

A number of members of the shura took the oath of allegiance (or ba-yah) to Islamic State at Wattamolla Beach in the Royal National Park on 31 August 2014. The offender was not present that day. He was helping his parents move house. There was no evidence adduced in the prosecution case that the offender had in fact taken the oath of allegiance to Islamic State by the time he was arrested.

During the first two weeks of September Baryalei called and spoke with the offender at least six times. Each call, made by Baryalei to an intercepted mobile number, was answered by the offender’s younger brother, who subsequently passed the phone to the offender.

In a telephone conversation intercepted on 3 September 2014, Baryalei advised the offender that his brother Waris was “loving it” and intended to join up with Zia Abdulhaq who used the kunya name “Abu Yusuf Al-Khorasani”. Baryalei discussed the plans to arrange for funds to be sent to him by arranging for three “unbelievers” to each send $2,950. I am satisfied that this was a reference to sending the US$9,000 previously provided by the offender to SE to persons in Lebanon or Turkey. The offender then explained how he still had to get the money back from “the guy” who had disappeared. This is clearly a reference to SE.

Baryalei enquired about the rest of the money in “the Money House”, which I am satisfied is a reference to the funds accumulated by the shura. The offender advised that there was a lot of money with “us”, but that it was being saved for “that thing that we talked about, about doing a thing you do here”, a reference to an unidentified prior conversation concerning plans for something else to do with Islamic State.

During this call the offender told Baryalei that he had got a new telephone for his younger brother, “because he is the one that speaks for me now because I can’t speak, like I can’t carry a phone or anything, yeah?” Later in the call the offender told Baryalei, “actually, I have no one’s number. I don’t even have a phone”. I am satisfied that the offender took this course as a means of counter surveillance.

In a telephone conversation intercepted on 4 September 2014, Baryalei and the offender discussed the difficulty of obtaining persons to undertake fund transfers due to “the heat and stuff here”. The offender discussed plans for a “boy” he had procured to transfer the US$9000, that M2 continued to hold, to a person or persons in Lebanon within a week, as requested by Baryalei.

The offender then raised the topic of the “two journalists”. I accept that this is a reference to video recordings depicting beheadings of abducted Western journalists James Foley and Steven Sotloff by members of Islamic State at that time. The offender indicated that he had discussed with others of the Muslim faith whether the video recordings had been faked to portray a negative image of Islamic State and the offender had told them, “[i]t’s not giving us a bad name at all. Hah, you kill our one, we’re gonna kill yours.”

The telephone conversation then briefly returned to the offender’s arrangements for the transfer by other persons of funds at the direction of Baryalei, indicating that he would speak to a few of the “jahil”. There was evidence at trial that the Arabic word “jahil” can mean an ignorant person, a religiously ignorant person or a minor.

In a telephone conversation intercepted on 6 September 2014, Baryalei and the offender discussed the latter’s progress in arranging for the transfer of funds. The offender advised that the money was still “in American” and discussed his concerns that M2 may “buckle” and refuse to make the transfer.

In a telephone conversation intercepted on 12 September 2014, the offender advised Baryalei that a second “unbeliever” had been procured to perform a transfer of funds. He then discussed how Baryalei was “all over the news in Australia” and was being described as a “senior IS leader” and as “the biggest IS from Australia”. He told him that there was reportage of his previous work as a bouncer in Kings Cross, his performance as an extra on Underbelly and his role in radicalising “Khalid” and Mohammed Elomar. The offender also told him that a warrant had been issued by Australian authorities for his arrest. Baryalei replied, “if they had any guts they would come here and arrest me”.

Having heard this recorded conversation, most of which was in the English language, I am satisfied that, even when Baryalei became annoyed about his history being revealed in the media, the offender continued to joke with him about the publicity nonetheless.

In a telephone conversation intercepted on 14 September 2014 Baryalei enquired of the offender as to what was happening with “the boys” and was advised that “one” had “pulled out” because “Tony Abbott ... raised the terror level from medium to high”. They then discussed other persons who might instead be willing and trusted to transfer the funds, or the possibility of performing two larger transfers, rather than three transfers. They also discussed whether Baryalei could assist a person in relation to aiding their entry into Syria and reaching Islamic State-occupied territory.

Late that day Baryalei called again to speak to the offender but his brother answered and advised Baryalei that the offender was unavailable. Baryalei indicated that he would call the offender again the following day.

On 15 September 2014, at about 9.03 pm, Baryalei telephoned the offender. His younger brother answered the mobile telephone and spoke briefly before passing the handset to the offender. A conversation lasting approximately 20 minutes then took place in the English, Arabic and Dari languages. This telephone call is the basis of the charge that the offender did an act in preparation for, or planning, a terrorist act.

The offender told Baryalei he was “playing soccer with the boys”, which is consistent with the surveillance footage. The conversation then moved on to the topic of a person attempting to enter Syria to join Islamic State.

Baryalei then changed the subject and said to the offender: “I got some good news for you… Remember…we discussed about you know what we discussed?” The offender replied, “[y]eah, yeah, yeah, yeah,” and Baryalei continued: “We’re gonna do it but... differently”. The offender replied “[d]ifferently?” and Baryalei continued: “It’s gonna be different. It’s gonna be ah a kind of..., in the name of Allah”.

Baryalei then said a prayer in Arabic to which the offender replied “Amen”. The following exchange then took place:

The “Telegram” application was popular at that time for encrypted instant messaging telecommunications. It could be used to evade detection by Australian intelligence or law enforcement authorities. The exchange continued between the two men:

The reference to the “Al-Furqan” boys by Baryalei was a reference to the media arm of Islamic State.

Baryalei went on to state:

The offender responded by stating: “Look ah … A brother wanted to do this work, yeah?” to which Baryalei responded: “Yes”. The offender continued: “He prepared two persons, he completely prepared everything, and …, but two days ago he got raided, everything was raided.”

I am satisfied that this reference to a “brother” who wanted to do this work is a reference to Agim Kruezi who had been arrested a few days earlier.

Baryalei then asked the offender how the authorities learned about this plan and the offender replied:

Baryalei then interrupted him to ask who this person was and the offender replied:

Baryalei then told the offender:

The offender replied:

Baryalei asked: “How about you?” to which the offender replied:

In other calls it was Alqudsi who was referred to as “big brother”. I am satisfied that here the offender suggested to Baryalei that either a religiously ignorant person or a minor not under surveillance by Australian intelligence or law enforcement could commit the murders of random members of the Australian public, with the offender and his associates being involved in obtaining a video recording and transmitting it to Islamic State members for propaganda purposes.

Baryalei responded:

The offender replied:

The offender then indicated that, whilst he was not sure, it was likely that their present telephone conversation was being monitored, but that their recorded conversation would not constitute evidence. The offender then went on to suggest:

The offender then indicated that a number of his associates were suitable to assist him, stating “This work... there are courageous boys, with a heart.”

Baryalei indicated that only three or four persons were necessary. He then described how he had consulted with a person of some seniority who had assured him that the planned domestic terrorist acts against members of the public in Australia were justified, as the public were responsible for electing the Australian Government, indicating:

The offender responded to this by stating:

Baryalei then asked “[i]s Sheikh Anwar talking about these things, yeah?” The offender responded by stating:

The two men then discussed the selection of three to five committed, trusted associates to assist the offender in bringing about the planned future terrorist attacks. I am satisfied that this is a reference to the offender’s knowledge of Kruezi’s plan to commit a domestic terrorist attack. Baryalei asked the offender:

The offender replied “Yeah” and the exchange continued:

Baryalei then indicated that the direction to commit the planned terrorist acts had come from senior Islamic State members who wished the offender and his associates to remain in Australia and commit terrorist acts there rather than travel to Syria or Iraq to join Islamic State, and that if they did so their bayeh or pledge of allegiance to Islamic State would be accepted. Baryalei stated:

I am satisfied that Baryalei was here passing on a message from a senior figure in Islamic State that if the offender stayed in Australia to commit terrorists acts, rather than flying to Syria to fight, that his oath of allegiance to Islamic State would be accepted. The offender replied:

Baryalei replied: “Oh, beautiful.”

The offender then stated:

There was evidence at the trial that the word “Tablighi” is an Arabic word, meaning a person who spreads Islam through preaching by peaceful means. I am satisfied that the offender was here suggesting to Baryalei that he and others, who could assist in bringing about the planned domestic terrorist act(s), pose as persons not interested in Islamic State for two months in order to evade detection by Australian intelligence and law enforcement. Baryalei agreed to this.

Then, after briefly discussing the offender’s efforts to procure trustworthy persons to transfer funds, the two men discussed the Australian Government’s commitment of 600 soldiers to the conflict in Iraq and moves by senior members of the Australian Islamic community to report those suspected of supporting Islamic State.

The two men then returned to their earlier discussion of planned domestic terrorist attacks. The offender stated:

Baryalei then told the offender not to tell too many people about what was being planned and “to keep it tight”. The offender told him there were about 17 members of the shura. Baryalei responded that “we don’t need too many people for this job ’cause why? ’Cause we want it to be - we want it to be, like … continuous, man. Don’t want words getting out, this and that. It has to be, like, proper heavy duty – heavy - heavy - heavy duty boys with perfect faith…” The offender responded:

The two men then discussed other persons involved in the shura. The offender described one of them by stating “His faith is good, he’s just under extreme surveillance brother”. He described how this man and “the other brother” had not gone and still have the same faith. The offender then stated:

The telephone call ended with Baryalei telling the offender:

On the following day, 16 September 2014, there was a further lengthy call between the offender and Baryalei concerning the transfer of the funds whilst the offender was at the Guildford Mosque.

Later that day the offender met with other members of the shura including Al-Talebi, Hussain and Atai outside the IGA at Guildford next to a payphone. Al-Talebi is seen in the CCTV footage making telephone calls from the payphone and the others are seen milling around. Hussain’s evidence was that, during this conversation, the offender said that he had spoken to Baryalei and that the ba-yah had been approved. The members of the shura were to stay in Australia and not make any attempts to travel overseas. The offender said that he had received instructions that they were to pick out a member of the public, or to get someone else to, and behead the person and drape them in the Islamic State flag. Hussain said that although this information had come from Baryalei the offender told them that the message came from “the top”. No discussions about how it was to be done occurred. Hussain said that, at that time, Al-Talebi dropped down and made a prostration, a ritual in Islam when a person receives news that pleases them.

This evidence was corroborated by CCTV footage of these men together outside the IGA and, in particular, the footage where a member of the group can be seen in the distance to prostrate himself.

The offender’s explanation for Al-Talebi prostrating himself at this time was that he was pleased that the offender’s brother was travelling to do the haj and then on to Syria. There was evidence that the offender’s parents and his brother Fahim did in fact leave Australia to travel to Mecca the following day. Despite this, having assessed the evidence of Hussain at the trial in the context of the other evidence called at the trial, I accept Hussain’s evidence that the offender did in fact pass on some of the contents of the telephone conversation he had had with Baryalei the previous day to other members of the shura. I note that the offender’s senior counsel in fact relied on the fact that Hussain agreed in cross-examination that when the offender told him of this, Hussain thought the plans were “crazy” and “ludicrous” and that he wanted to play no part in it.

The 15 September 2014, conversation had been intercepted by police and recorded. It was subsequently translated from Dari to English.

On 17 September 2014, the offender’s parents and brother Fahim left Australia to do the haj. The offender’s brother then flew to Syria where he also fought with Islamic State.

Early on 18 September 2014, the offender was arrested in his home as part of the Operation Appleby raids. Those raids received considerable publicity at the time and were triggered by the translation of the call between the offender and Baryalei on 15 September 2014 in which future terrorist acts in Australia were discussed.

During the search at the offender’s home, police located and seized telephone handsets and a computer hard drive with search histories which included websites promoting extremist views concerning Islamic jihad. There was no evidence in the trial that the offender (as opposed to his brothers) had accessed any of the extremist material himself.

The offender exercised his right to silence and declined to be interviewed by police. He was refused bail and has been in custody since that time.

In the period since the offender was arrested and refused bail Mohammad Ali Baryalei and both of the offender’s brothers Waris Azari and Fahim Azari have all been killed in Syria fighting for Islamic State.

A dispute arose as to the translation of part of the 15 September 2014 telephone conversation from the Dari language into English. Two expert witnesses were called in relation to this issue. The issue in dispute was the translation of the Dari word “baan”. There was no dispute that that was the word used by the offender during the relevant conversation. Its translation is “to leave” but it has different meanings depending upon the context in which it is used. It can mean to “postpone” and also to “abandon”. The word was used by the offender when he told Baryalei that they should “postpone” the plan for two months until after the surveillance had died down. The offender gave evidence that he used the word to mean “abandon” the plan. Consistently with the jury verdict, I am satisfied that having regard to the context in which the word was used in the relevant conversation the offender was seeking to defer the plan until after the surveillance had lessened and was not saying that he would “abandon” the plan completely.

The offender gave evidence at the trial.

The offender explained that he knew that Baryalei was a high-ranking member in Islamic State. The only reason the offender wanted to stay in contact with him was to know the whereabouts of his brother Waris. He stated that he had no means of contact with Waris except through Baryalei. He did not want to upset Baryalei because if he was not on his good side there would be consequences. He stated that Islamic State was a ruthless group and if you go against them there are severe consequences including death. He stated that he had tried to avoid Baryalei’s phone calls during the August and September period by giving him his brother’s phone number.

The offender stated that he did not hang up on Baryalei on 15 September 2014 when he raised the topic of domestic terrorist attacks because he feared for his brother Waris and also for his other brother Fahim who was soon to travel to Syria as well. He stated that he had no intention of passing on the plan to the shura. He took no steps to get the Telegram app, nor did he intend to, and he had no intention of being part of getting the shura to participate in the plan that had come from Baryalei. He stated that Kruezi did not tell him about his plans to commit a terrorist act. He only found out about that plan from the news on television and in the newspapers.

Clearly the jury did not accept the offender’s explanation for the contents of the call on 15 September 2014. There were a number of difficulties with his explanation of which I will identify just two.

First, the offender’s explanation for participating in the 15 September telephone call was that he was fearful of Baryalei and scared for his brother Waris and that he needed to keep the communication going because that was the only way to keep in touch with him. But none of the telephone calls revealed any threats, expressed either directly or indirectly, in relation to Waris coming from either Baryalei or Islamic State. The way the two men interacted with each other during the calls suggests neither that the offender was personally in fear of Baryalei nor that he was worried or had any fears for his brother. In fact in one of the calls the offender can be heard laughing about Baryalei’s past life as an extra on the set of Underbelly and as a bouncer at Kings Cross when those details were reported by the media. The offender also told Baryalei that he would go and visit Baryalei’s mother “to catch up with her”.

There is no evidence that the offender ever warned his brother about Baryalei nor that he had any qualms about Baryalei talking to his younger brother on the telephone. On the contrary, he was trying to get Baryalei to meet up with his brother Waris and Baryalei did go to visit him on a couple of occasions. The offender did not have to go through Baryalei to get to his brother as Waris had already spoken to the family. In addition to that, Baryalei was busy and constantly on the move and was not in the same area as Waris. Baryalei never came even close either to exercising any authority over Waris or being a threat to him. In fact, Waris was selected for the special forces of Islamic State and was going with another commander anyway. The offender himself agreed that Baryalei never made any threats to his brother.

Second, the offender gave evidence that Kruezi did not tell him of his plans to commit a terrorist act when he spent time with members of the shura in Sydney in August in 2014. His evidence was that the only basis for him to be able to tell Baryalei that he knew Kruezi’s plan was because he read it in the newspapers. He stated that the reason he did not discuss any politics with Kruezi was because Kruezi was a supporter of Jabhat Al-Nusra whereas the offender was an Islamic State sympathiser. The offender explained that when Kruezi first came to Sydney, Al-Talebi told the offender that he was a guest and out of respect the offender should not argue or debate with him.

Contrary to this assertion, the offender made a formal admission that when police officers executed a search warrant of Kruezi’s Queensland residence they found an Islamic State flag.

The proceedings on sentence were conducted before me on 1 February 2019. The Crown relied upon two affidavits of officers of Corrective Services NSW (“CSNSW”) as well as the offender’s custodial report. The offender has no prior criminal history.

The offender relied upon an affidavit affirmed by him on 1 February 2019 outlining the circumstances of his incarceration at the High Risk Management Correctional Centre (“HRMCC”), the maximum-security section of Goulburn Correctional Centre. In addition, some of the evidence he gave at the trial outlined his personal circumstances. He did not give evidence at his proceedings on sentence nor did he rely on any other material on sentence.

I am required to sentence the offender in accordance with Part 1B of the Crimes Act 1914. Section 16A(1) relevantly provides that, in determining the sentence to be passed on a federal offender, a court must impose a sentence that is of a severity appropriate in all the circumstances of the offe nce. Section 16A(2) provides that in addition to any other matters, the court must take into account specified matters as are relevant and known to the court. The list of factors in s 16A(2) is not exhaustive. Other relevant common law principles of sentencing in this matter include those of parity and totality. These principles are also relevant to fixing a sentence “of a severity appropriate in all the circumstances of the offence” as required by s 16A(1).

In relation to the nature and circumstances of the offence, the assessment of objective gravity must take place having regard to the principles applicable to sentencing for terrorism offences. It was not disputed during the trial that what was discussed in the telephone call amounted to a terrorist act or acts. That is, if carried out, the acts were intended to advance a political, religious or ideological cause and would have been done with the intention to coerce or influence by intimidation any Australian or foreign government, or intimidate the public or a section of the public. The relevant sentencing principles were recently summarised by Johnson J in R v Alou (No. 4) [2018] NSWSC 221 at [165] to [171] as follows:

Consistent with judicial recognition of the scope of anticipatory terrorism offences created under the Criminal Code, the offender’s participation in the telephone conversation constitutes an act done in preparation for, or planning, a terrorist act, contrary to s 101.6(1) of the Criminal Code. This offence carries a maximum penalty of life imprisonment and covers a very broad range of criminal conduct. The Commonwealth DPP did not suggest a sentence of life imprisonment should be imposed in this matter on the offender.

The offender is to be sentenced on the basis that he intended by participating in the telephone conversation with Baryalei to be doing an act in preparation for, or planning, a terrorist act or acts. He is not be sentenced on the basis that he had formed any agreement to commit any terrorist acts. He did not have the authority to bind the other men in the shura. The Crown case was not one of conspiracy or joint criminal enterprise. When the offender told Baryalei during the telephone conversation that he knew boys of heart who were “very much with him in religion” and would do what was being suggested by Baryalei, the offender could not in fact speak for the other members of the shura and bind them in any way at that time. Nor is the offender to be sentenced in relation to his meeting with Kruezi and any discussion about obtaining a weapon. He is to be sentenced solely on the basis that he participated in the 15 September 2014 telephone conversation.

There was no evidence of the offender doing anything after the telephone call besides passing on the contents of the call to some other members of the shura. This is consistent with the offender telling Baryalei that any terrorist acts should wait until the “extreme surveillance” the offender and other members of the shura were under died down. Although the offender’s senior counsel placed significance on the fact that the offender did not attempt to set up a Telegram account after the telephone conversation, this fact is also consistent with the offender telling Baryalei he would not be doing anything suggested by Baryalei for two months or until surveillance on him lessened.

The offender was a conduit between Baryalei and the members of the shura. At that time Baryalei was the most senior Australian Islamic State member in Syria. As for the contents of the telephone call itself, it included discussion of the role that the offender and other trusted members of the shura would play in a series of public executions and the reasons why such murders were justified. Critical parts of the conversation between the offender and Baryalei were spoken in Dari, to make detection by the authorities of what was being discussed more difficult.

Most acts of terrorism which police have intercepted have involved so-called “lone wolves”. Such offenders were usually radicalised online, with no direct contact with any actual members of Islamic State. By contrast, because I am satisfied that the offender was in direct contact with Islamic State, his role with the terrorist organisation as an intermediary is relevant to the court’s assessment of the nature and seriousness of his offending.

There was no significant planning of the offence beyond what was discussed in the telephone call and the offender was arrested only days later in the early hours of 18 September 2014. The fact that the planning was at such an early stage does not necessarily mitigate the seriousness of the offence. In R v Lodhi [2007] NSWCCA 360; (2007) 179 A Crim R 470 (“Lodhi CCA”) at [65]–[66], Spigelman CJ (McClellan CJ at CL and Sully J agreeing) observed that a policy judgment has been made by the Government that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct. Such criminality can arise in terrorism offences well before any agreement has been reached for a conspiracy charge.

Similarly, in DPP (Cth) v Besim [2017] VSCA 158 (“Besim appeal”), the court (Warren CJ, Weinberg and Kaye JJA) relevantly stated at [111]:

Another relevant factor in assessing the objective gravity of the planning offence is the depth and extent of the radicalisation of the offender. In other cases this has been demonstrated by the possession of extremist material and/or the communication of such views to others. There was no evidence before me to establish that the offender had ever accessed any extremist material online. Although there was evidence of extremist material having been accessed on computers found at his home, they had last been accessed in 2013 and early 2014 and it could be not be excluded that it was the offender’s brothers who accessed this extremist material. The offender gave evidence that his brother Waris, who was also a member of the shura before he travelled to Syria, persuaded him that Islamic State was on “the right path” and this is consistent with Waris having accessed the material. Nor was there any history of such material being accessed by the offender on any mobile telephone.

Having listened to all of the offender’s telephone conversations with Baryalei played at the trial I am satisfied that the offender held radical, Salafist Islamist and anti-Western ideological beliefs at that time and was supportive of Islamic State and other militant Islamist groups. Although there was no evidence before me that the offender had taken the pledge of allegiance to Islamic State by the time of his arrest, in the 15 September 2015 telephone conversation Baryalei told him that Islamic State would accept his and the others’ oaths of allegiance if they carried out terrorist acts. The offender responded that he had no problem with that and that “of course we’re gonna accept the order of the Commander.”

A broad range of conduct is caught by s 101.6(1) of the Criminal Code. For example, as a matter of general principle, a case where the target is property will be less serious than a terrorist attack intended to kill or injure people: R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691 (“Lodhi sentence”) at [65] per Whealy J.

Having regard to all of these factors I would assess the gravity of the offender’s offence as being below the mid range of objective gravity for an offence under s 101.6(1). Although the offender’s actions in preparing for or planning a terrorist act or acts were confined to the telephone call, the offender made a number of suggestions during that call as to how the acts could be carried out. Significantly, the offender indicated to Baryalei during that call that he was willing to agree with any order from the “Commander” of Islamic State even if it included being asked to commit the killings discussed in the telephone call.

The offender accepted in his evidence at trial that he attempted to provide funds to a terrorist organisation knowing they would be used to fund fighters on the ground and that this was wrong because it was going to people who were fighting and not helping the Syrian people. Although the amounts were not large, as Baryalei noted in a number of calls, they were much needed.

The offender went to great efforts to transfer the funds as the facts show. In addition, the offender approached the young man M2 who was previously not involved with Islamic extremism and recruited him. Al-Talebi gave M2 extremist literature in the presence of the offender. The recruitment of M2 is relevant to the assessment of the objective seriousness.

I would assess this offence as being below the mid rage of objective gravity as well. I note that Sutherland SC DCJ made a similar finding when sentencing Al-Talebi in finding that his offending was above the low end of the range of objective gravity. I will address the question of parity with the sentence imposed on Al-Talebi later in these reasons.

The offender was born in Afghanistan either in 1992 or 1994. He is one of nine children. Two of his siblings died as infants before he was born and another two died in Syria fighting with Islamic State. The offender attended school in Kabul before his family migrated to Australia. Arriving in Sydney, the offender attended schools in Westmead and Parramatta. He spoke no English before he came to Australia. He later graduated from High School. He speaks a number of languages: Hindi, Persian, Dari, Pashto, English and basic French.

The offender played sport for many different clubs across a number of codes while at school, including representing the New South Wales under-18 soccer team. He gave evidence that he was the sole Muslim on that team. After graduating, he spent a year working for a company involved with the Special Olympics. He gave evidence at trial that he enjoyed this work with the disabled. He was studying accounting at TAFE at the time of his arrest.

Although raised by his family as a Muslim he gave evidence that he only became devout after observing his grandmother’s dementia. Even though she could not remember people’s names she could remember her prayers. At the age of 13 the offender began reading the Quran and praying five times a day. The offender stated that prior to the Syrian war his religion had nothing to do with politics. He was just following the values of his parents.

The offender describes a very close relationship with his mother, whom he acknowledges is going through a lot of “tough times”. He stated in his affidavit that he had asked her not to come to the trial as it would be too upsetting for her. Although the offender is permitted to speak to his mother by telephone, she has not learned English and the offender is required to speak English at all times as a rule of the HRMCC, including during phone calls. The offender feels that he has lost his connection with his mother because the two cannot speak properly. He stated that he has also lost his connection to his native language because he has not been allowed to speak in it for over four years.

Both the offender’s father and grandmother have died since he was arrested and he was not permitted to attend either of their funerals.

No members of the offender’s family nor any friends or other supporters attended the offender’s trial or the proceedings on sentence. Nor were any letters from family members or friends provided to the court.

As I noted earlier, there is some uncertainty as to the year of the offender’s birth. His official papers bear the date of 7 July 1992 as his date of birth, however he gave evidence that his real birthday is 7 July 1994 and that his uncle in Australia who assisted his family’s move to Australia, and filled out the immigration forms, was unaware of his date of birth. Although little turns on it for the purposes of the sentencing exercise, the Crown conceded it was not in a position to rebut the evidence of the offender as to his true age and I shall proceed on the basis that he was 20 years of age at the time of his arrest rather than 22.

Whilst the youth of an offender is always a relevant factor on sentence, the summary of principles I have already set out provide that it may be given less weight in light of the seriousness of terrorism offences and the absence of any causal link between an offender’s age and his criminal conduct: R v Khalid and Ors [2017] NSWSC 1365 at [109], [270]. Many of the supporters of Islamic State were younger males. The use of social media people by Islamic State was effective in this regard. It is necessary that the court imposes appropriate sentences on young offenders who become involved in terrorist offences. As Johnson J observed in R v Atai (No. 2) [2018] NSWSC 1797 (“Atai”) at [382], it is important “to guard against any thought that the involvement of young offenders in criminality of this type will ordinarily or necessarily lead to reduced penalties”.

By an affidavit affirmed on 1 February 2019, the offender described his custodial conditions while on remand. He deposed that, after his arrest, he was taken to Silverwater Correctional Centre where he was held in a “dry cell” for two days being a cell without a shower. The sole window in the cell door was kept covered at all times. He was stripped down to his underwear and was not allowed clothes for the duration of his time in the cell.

On 3 December 2014, the offender was transferred from the Metropolitan Remand and Reception Centre to the HRMCC in Goulburn and kept in segregation for two weeks.

The Senior Assistant Superintendent of the HRMCC described in his affidavit the nature of, and conditions at, the HRMCC. The HRMCC houses inmates “who require a higher level of supervision than the general prison population” because the Commissioner of CSNSW forms the view that the inmate represents a “special risk to the correctional centre and/or national security”.

The offender is currently classified as a “3:3” inmate, meaning that he has the highest level of privileges available to prisoners held in the HRMCC, including access to books, a TV, a kettle and a sandwich press in his cell. The offender is permitted to have visits on a non-contact basis. Visits are for up to a maximum of one hour in duration. The offender’s classification status under the Crimes (Administration of Sentences) Act 1999 (NSW) and the Crimes (Administration of Sentences) Regulation 2014 (NSW) is “Extreme High Risk Restricted” which means that his contact with other inmates and family members must be approved by the Commissioner of CSNSW and is subject to security vetting by the Corrections Intelligence Group. Many of his family members have not been approved for visitation without a reason being provided to him and contact visitation with his mother has been rejected.

While at the HRMCC, the offender was disciplined for inappropriate behaviour five times within the first 14 months and on two further occasions since December 2015. He attributes these incidents to immaturity and says that he has learned his lesson from them. His custodial records disclose that in more recent times he has been a compliant prisoner who has not caused any disciplinary issues.

The offender described how when he first entered custody he could not cook or clean but has since taught himself to do so. He now does all his own cooking, laundry and cleaning.

The Crown submitted that his status as a high risk offender at the HRMCC was no different to being a high risk prisoner in the general population.

I will have regard to the offender’s custodial limitations resulting from the nature of his offences as a relevant factor in sentencing the offender.

The planning offence has had a somewhat unfortunate procedural history. On 5 February 2015 the offender was committed to stand trial in the Supreme Court. His trial was first listed on 10 April 2017. That trial did not commence before me until 24 April 2017 as the offender sought a temporary stay of the trial until the CDPP elected which of the two counts on the indictment at that time she wished to proceed with. An alternate count of conspiracy to murder was initially also included on the indictment. I granted the stay on 13 April 2017: R v Azari (No 1) [2017] NSWSC 404. The CDPP subsequently elected to proceed with the planning offence.

On 3 May 2017 the jury had to be discharged for the reasons set out in R v Azari (No 2) [2017] NSWSC 515. A new trial was listed on 20 November 2017.

On 15 November 2017, a joint application by the parties to vacate the trial date was granted and the matter put back in the arraignments list on 1 December 2017 to obtain a new trial date. On 1 December 2017, the matter was listed for trial on 2 October 2018. One of the reasons for the delay was the unavailability of a courtroom at Parramatta until that date.

Following the jury verdict on 2 November 2018 the proceedings on sentence were listed for hearing on 12 December 2018. That date became unavailable to the Crown and defence counsel was not available on the proposed alternative date of 11 December 2018. The matter was subsequently listed for hearing on 1 February 2019.

After the proceedings on sentence were heard on 1 February 2019 I stood the matter over until 11 February 2019 for sentence. In the interim it became known to me that publication of my reasons for sentence of the offender may create prejudice to the jury trial of R v Dirani then proceeding before Johnson J. The sentencing in this matter was then deferred until the Dirani trial finished. The jury reached a verdict in that matter on Thursday 14 March 2019. This matter could not be listed any sooner than today for a number of reasons including, again, the availability of this court at Parramatta where the proceedings had to be listed.

As at today 29 March 2019, the offender will have spent 4 years, 6 months and 12 days in pre-sentence custody. Although the commencement date of the sentence I will impose will be 18 September 2014, the date the offender first came into custody, the delay in finalising the matter is most regrettable.

Section 16A(2)(g) allows a sentencing judge to give a discount to the sentence which would otherwise be imposed for a plea of guilty. As recommended in Xiao v R [2018] NSWCCA 4 I propose to specify the discount to be applied to the sentence for the funding offence. The Crown did not wish to be heard against a 25% discount for that offence given that he pleaded guilty at an early stage in the Local Court.

Although the offender pleaded guilty to the funding offence, he did not express any contrition for that conduct. On the contrary, he maintained in his evidence at trial that he had engaged in the conduct, whilst knowing it was a crime, because it was his religious obligation, to which the laws of Australia were subordinate.

The offender is not entitled to any discount for the planning offence. He maintains that he is innocent of that offence.

In assessing the offender’s prospects of rehabilitation, it is necessary to assess the extent to which the offender has renounced his previously held extremist views. The offender gave evidence at his trial that he does not hold extremist views and no longer shares the ideology of Islamic State. By its verdict, the jury rejected the offender’s evidence that he did not hold such views at the time of the offence. The question is whether he still holds them now. The offender bears the onus of establishing, on the balance of probabilities, that he no longer holds such beliefs.

Where an offender has not established that he has disavowed those views, courts have repeatedly recognised that the element of community protection will be of even greater importance: Lodhi CCA at [82]–[83] and [88]; R v Elomar (2010) 264 ALR 759 at [93]; R v Fattal [2011] VSC 681 at [83] per King J; Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 at [591]. In the absence of evidence of renouncement of these views a court could not find that an offender has prospects of rehabilitation.

When the offender gave evidence at trial he denied that he values his own religious belief above complying with the law of Australia. He accepted, however, that at the time of the offending he thought he had a stronger duty to support his religion.

I have already summarised some of the telephone calls between Baryalei and the offender prior to the call on 15 September 2014. Some of them include statements of the offender’s support for violence at that time. For example, on 4 September 2015 when discussing the deaths of the Western journalists the offender observed that the deaths were not giving Islamic State a bad name and that “if you kill our one, we’re gonna kill yours”.

The offender was cross examined about some of his telephone conversations with Baryalei prior to the 15 September 2014 call. In one of them he referred to American troops as “American dogs”. He confirmed in this evidence that he was referring to the American soldiers in Afghanistan and stated that he had to come to Australia because of the air strikes by Americans in Afghanistan. When he was asked by the Crown Prosecutor whether his family had in fact come to Australia because of “atrocities by the Taliban” the offender replied:

The offender gave evidence that when he made the funds available to Islamic State he believed his religion told him he had a duty to do so. He wanted to support Islamic State, including their religious and political views about establishing an Islamic caliphate and he believed, based on the Quran, that people should be governed according to Sharia law.

The offender accepted in cross-examination that the individuals to whom he was sending money overseas would be taking up arms and carrying out martyrdom operations. He also accepted that in planning to go to Syria he, too, was prepared to engage in armed combat. He denied, however, that in the period leading up to his arrest he held extremist views. Rather, he gave evidence that he held views according to Islam and the Prophet. The offender denied in his evidence at trial that he was a Salafist, holding extremist religious views. He claimed that he had only supported Islamic State in limited respects. The jury must have rejected this evidence.

The offender claimed that his views have changed, but that he remains a devout Muslim. When asked by the Crown whether his views have become less radical since his arrest, he replied: “I wouldn’t say less radical but I wouldn’t get involved too much in politics.” He agreed that at the time of the offending, he wanted to see Islamic State take over Syria and Al-Sham be instituted and brought back under Islamic rule. He gave evidence that it was not his view but the view of the Prophet. He stated “we look at the text of the Prophet so my view would be based on his view.” The offender uses the word “infidel” to describe non-believers, according to, and in the habit of, the Prophet.

Another matter relevant to the question of whether the offender still holds radical beliefs is the fact that he refused to stand for either me or the jury through the entirety of his trial save for when he was arraigned.

Prior to the offender’s first trial, after it became apparent that he was not standing when I entered and left court, I asked his then senior counsel Mr Stratton SC whether he would be standing for the jury. I was informed that he would not. A letter was subsequently provided to me by the offender in these terms:

Mr Stratton described the offender’s reasons for not standing as “religious in nature” and indicated that he had spent considerable time discussing the issue with the offender. The offender did not stand during his first trial in April 2017 except for when he was arraigned before the jury.

Prior to the commencement of his second trial, I raised this issue again with the offender’s new senior counsel Mr Hughes SC. I indicated that since the first trial I had become aware that senior Imams in Australia had advised the courts that it was not a part of religious observance for a Muslim to refuse to stand in court. Mr Hughes indicated that his client was not prepared to stand for the jury or for me during the trial. Consistent with this he did not do so.

I again raised this issue of the offender’s refusal to stand on religious grounds at the proceedings on sentence on 1 February 2019 as being relevant to whether the offender still holds extremist views. Mr Hughes submitted that the offender’s failure to stand in court was never meant to be an insult to the court or the jury members. He said that the offender has chosen to do that and is prepared to live with its consequences, even though the Council of Imams has stated that it is not consistent with the Quran and Islamic practice not to stand.

In September 2017, the Australian National Imams Council published a document titled the “Explanatory Note on the Judicial Process and Participation of Muslims”. It is published on the Judicial Commission of New South Wales website. The relevant passage concerning the question of court protocol is as follows:

I accept that the offender conveyed to the court that in not standing on religious grounds he meant no disrespect to me, but the Australian National Imams Council has expressly stated that there is no prohibition on a Muslim standing in court as a sign of respect. In this context, the offender’s refusal to stand in court as recently as last October does not suggest that he has disavowed extremist views held by him at the time of the offences.

A further matter relevant to my assessment of the offender’s prospects of rehabilitation is his willingness to undergo any courses in custody such as the Proactive Integrated Support Model Service (“PRISM”).

There was affidavit evidence before me from a psychologist employed by CSNSW who explained the PRISM. It is a statewide, custody-based service for offenders “who have expressed certain religious or political views, or acted in such a way that may be considered radical or extreme”. PRISM is designed to assist offenders to disengage from extremist groups or behaviour, desist from support or involvement in offending behaviour, and to reintegrate into society through an “individualised intervention plan”. Each plan is individually tailored to each offender’s risk, needs and responsivity factors through certain “intervention targets”, which include personal identity and religious ideology and criminal patterns of thought.

Participation in PRISM is voluntary. An offender with outstanding terrorism or national security charges would not ordinarily be considered eligible for inclusion in the PRISM service until they are convicted. For this reason the offender would not have been eligible for inclusion in the program until he was convicted.

In the offender’s affidavit he stated that he would be willing to undertake any rehabilitation courses in custody. When I enquired of his senior counsel at the sentencing hearing whether that meant that the offender would be willing to undertake PRISM, I was informed that the offender is not willing to undertake PRISM. Although his attitude may well change in the future when his potential release date draws nearer I have had regard to the fact that he is not willing to participate in PRISM at this stage.

A further matter I have taken into account is the evidence of M2. He gave evidence that through his relationship and interactions with the offender he knew him to have adopted the views of Islamic State. M2 recalled him expressing happiness or gratefulness when Islamic State would advance its agenda, such as when the caliphate was announced under Abu Bakr Baghdadi. He also remembered the offender discussing the bay-ah (the pledge of allegiance) and that the offender and Al-Talebi had spoken about taking oaths of allegiance to Islamic State around mid-2014 on more than one occasion. In cross-examination M2 stated that he had once observed the offender approach people handing out religious or political pamphlets with opposing views outside Parramatta Mosque after Friday prayers and argue with them but his approach towards them was “calm and respectful.”

The Crown submitted that when the evidence in the trial is looked at, including what was said in the telephone calls over a lengthy period of time, the court would accept that the offender held an extreme and radical view at that time and he has not established that he has disavowed it.

Having regard to all of these matters, I am not persuaded on the balance of probabilities that the offender has rejected all of his previously held extremist views. This fact is relevant both to the need for community protection and the offender’s prospects of rehabilitation.

The offender has asked the court to take into account under s 16BA of the Crimes Act two further funding offences. Even though these matters assume less importance in the sentencing process than the charged offences, it is still necessary for the court to assess the objective criminality of them: R v Dennison [2011] NSWCCA 114 at [47]–[57]. Greater weight is to be given to the need for personal deterrence which the admitted offence signifies, and also to the community’s entitlement to extract retribution in the form of punishment for the admitted offence: Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1991 (No 1 of 2002) (2002) 56 NSWLR 146; (2002) 137 A Crim R 180; [2002] NSWCCA 518 at [18]; [42]. These principles were stated in relation to NSW legislation but have been held to be equally applicable to s 16BA Crimes Act 1914: see R v Lamella [2014] NSWCCA 122 at [48]

The offender’s involvement in the two s 16BA matters included participating in phone calls with Shabir Ahmad who was located in Pakistan and arranging for M2 to carry out the money transfers as I have already described. The offender intended that Shabir Ahmad would make the funds available to Islamic State, directly or indirectly, by making them available to a member of Islamic State or by making them available for use by or on behalf of persons seeking to travel to Islamic State-occupied territory in Syria or Iraq in order that they could participate in fighting with, or otherwise support, Islamic State.

General deterrence is a significant factor on sentence for these offences. It goes without saying that the sentences need to operate as a deterrent to others who would seek to provide financial support to terrorist organisations such as Islamic State and also be willing to do an act in preparation for, or planning, a terrorist act in Australia.

Despite the offender having no prior convictions, the Crown submitted that the need for personal deterrence is also high in the circumstances of this case, because of the offender’s adherence to the religious ideology of violent jihad and the nature and circumstances of activities as a member of the shura over a lengthy period of time.

The court must ensure that the sentences to be imposed in this case constitute adequate and proportionate punishment for his crimes: s 16A(2)(k). While “community protection” is not explicitly listed in s 16A(2) of the Crimes Act 1914, the sentencing principles for terrorism offences emphasise the relevance of this sentencing principle. This is due to the fact that terrorism offences involve the threat or use of violence as a means to intimidate the community and/or the government to pursue a particular political, religious or ideological agenda. In this case the offender was pursuing the agenda of Islamic State. On this basis community protection is another relevant sentencing factor.

The Crown provided a schedule of comparative cases for terrorist offences. The cases were Lodhi, both at first instance and in the CCA; R v Al-Kutobi; R v Kiad [2016] NSWSC 1760 (Garling J); Besim appeal; The Queen v Sevdet Besim [2016] VSC 537 (Croucher J); Director of Public Prosecutions (Cth) v MHK [2017] VSCA 157; The Queen v MHK [2016] VSC 742 (Lasry J); R v Sulayman Khalid; R v Jibryl Almaouie; R v IM [2017] NSWSC 1365 (“Khalid”) (Bellew J); R v AH [2018] NSWSC 973 (Latham J); R v Khaja (No 5) [2018] NSWSC 238 (“Khaja”) (Fagan J); R v Agim Kruezi, unreported, Supreme Court of Queensland, 31 July 2018 (Atkinson J); Atai (Johnson J).

The offender relied upon the decisions in R v AH, Regina v Touma [2008] NSWSC 1475, Lodhi (CCA), Elomar v Regina [2014] NSWCCA 303; (2014) 316 ALR 206, Khaja and Khalid.

Although I have had regard to the principles to be derived from all of these decisions, none of them came close to the facts in the present case and nor were the subjective features of the offenders in those cases similar to those of the offender. In particular, I note that many of the offenders in the other cases to which I was referred pleaded guilty to the relevant terrorism offences, which the offender did not.

Al-Talebi was also charged with the funding offences to which the offender is to be dealt with. Following a trial before a jury in November and December 2016 in the District Court, Al-Talebi was convicted of three offences of attempting to provide support, resources or funds to Islamic State, knowing that organisation was a terrorist organisation. The indictment comprised two offences contrary to s 102.7(1) and one offence contrary to s 102.6(1) of the Criminal Code.

Section 102.6(1) is directed towards the funding of terrorist organisations whereas s 102.7 creates an offence for persons who provide support or resources to terrorist organisations that would help those organisations engage in terrorist activities. Both offences relevantly carry a penalty of imprisonment for 25 years for offences committed, relevantly, intentionally.

The factual basis for the two s 102.7(1) offences was grounded in Al-Talebi’s role in the two transactions of 6 and 7 August 2014 involving M2, while the s 102.6(1) offence concerned his dealings in relation to the US$9,000.

On 28 August 2017, Sutherland SC DCJ sentenced Al-Talebi to a head sentence of 10 years in respect of each of the three offences, with the sentences for the two s 102.7(1) offences to be served wholly concurrently, while the commencement sentence for the s 102.6(1) offence was deferred for two years. Accordingly, the total head sentence was 12 years, with a non-parole period of 9 years. His Honour found that the matters for sentence could not be viewed as falling at the lowest end of criminality and recognised the need for general deterrence.

Although the offences under ss 102.6(1) and 102.7(1) carry the same maximum penalty of 25 years, it is not an element of the offender’s funding offence that the funds would help Islamic State engage in preparing, planning, assisting in or fostering the doing of a terrorist act. For the s 102.6(1) offence, Al-Talebi was sentenced on the basis that the funds were intended to be directly utilised by a person identified as a senior member of Islamic State, or at least a person in a position of senior responsibility.

There are some differences and similarities between the offender and Al-Talebi. Although Al-Talebi was sentenced on the basis that his offences were committed jointly with the offender, the offender is only to be sentenced for the s 102.6(1) offence, with two additional offences of that type to be taken into account. It is also noted that the offender’s additional matters are not the same as Al-Talebi’s offences in counts 1 and 2. In addition, Al-Talebi was older and he was the person who provided the extremist literature to M2, albeit in the presence of the offender.

It is a fundamental principle of equal justice that offenders who are charged with offences arising out of the same factual circumstances should receive sentences, which are proportionate to one another (Postiglione v The Queen (1997) 189 CLR 295 at 301–302; [1997] HCA 26 per Dawson and Gaudron JJ). The principle is not restricted to situations where the offenders are charged with the same offence (Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [29]–[30] per French CJ, Crennan and Kiefel JJ).

I have kept the question of parity in relation to this offence in mind in arriving at the appropriate sentence for an offence.

Under s 17A of the Crimes Act 1914 I may only impose a term of imprisonment if I am satisfied that this is the only appropriate sentence. Clearly, I am satisfied that this is the case in respect of the offender. The offences for which the offender stands to be sentenced are both “terrorism offences” as defined in s 3(1) of the Crimes Act 1914. This means that each of them is a “minimum non-parole offence” within the meaning of s 19AG(1) of the Crimes Act 1914.

Section 19AG(2)(b) relevantly provides that where two or more sentences have been imposed I am required to fix a single non-parole period of at least three quarters of the aggregate of those sentences. As Johnson J observed in R v Alou (No. 4) at [286], the operation of s 19AG(2)(b) should not result in a lower head sentence being imposed in an effort to ensure that a specific minimum term can be found to apply: R v Alou (No. 4) at [286].

I am also required to apply common law principles of totality: Johnson v The Queen (2004) 78 ALJR 616. The offender is to be sentenced for two serious offences and in relation to one of them a further two offences are to be taken into account under s 16BA of the Crimes Act 1914. The question arises as to the degree of concurrence and accumulation warranted in order to reflect the total criminality of the offender. Senior counsel for the offender accepted that a level of accumulation was appropriate, but submitted that it ought to be more modest than that submitted by the Crown.

Although there is a factual continuum between the conduct constituting the funding offence and the planning offence, the goals in each case were separate. The criminality involved in making funds available to Islamic State to fund foreign fighters and that involved in doing an act in preparation for, or planning, a domestic terrorist act or acts is different. The sentences must be accumulated to a significant extent to reflect this.

In compliance with s 19AG(2)(b) and the principle of totality I propose to indicate the appropriate head sentence on each of the offences, allow for a degree of concurrence, review the total sentence to consider whether the aggregate term is a just and appropriate measure of the total criminality involved: s 16A(1) Crimes Act 1914 and then finally fix the non-parole period of 75% on that aggregate head sentence.

The evidence before me establishes that prior to the offender’s support for Islamic State he was a devout Muslim of good character who excelled at soccer and enjoyed working with the disabled. He had no prior criminal history and no material was put before the court by the Crown to suggest that he has ever used any actual physical violence.

The facts in this case demonstrate the insidious nature of Islamic State and the hold it was able to take over young Muslims. In this case it captured the heart and mind of an otherwise law abiding young man and radicalised him. Belief in Islamic State led this offender to attempt to fly to Syria to fight, transfer funds to help Islamic State, liaise with a senior Australian member of Islamic State and become so indoctrinated that during the telephone call on 15 September 2014 he agreed that he would follow any order of the Commander of Islamic State even if it included terrorist acts in Australia.

Consistent with the proper approach to sentencing described by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], confirmed in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26], I have identified the factors relevant to the sentence, discussed their significance and made a value judgment as to what is the appropriate sentence given all the factors of the case.

For the planning offence there will be a term of imprisonment of 12 years.

For the funding offence (and taking into account the other two matters) and after allowing a 25% discount, there will be a sentence of imprisonment of 8 years.

Applying the principle of totality there will be a period of 2 years’ concurrence between both sentences.

The effective aggregate sentence will involve a head sentence of imprisonment for 18 years. Applying the three-quarter rule for the purpose of s 19AG of the Crimes Act 1914 (Cth), the non-parole period will be 13 years and 6 months.

Mr Azari, you are convicted and sentenced as follows: