R v Uweinat

Youssef Uweinat (the offender) pleaded guilty before the Local Court to the following offences:

Each offence was committed between 5 June 2019 and 4 December 2019.

The membership offence is contrary to s 102.3(1) of the Criminal Code 1995 (Cth) (the Code) and carries a maximum penalty of 10 years imprisonment.

The advocacy offence is contrary to s 80.2C(1) of the Code and carries a maximum penalty of 5 years imprisonment.

The facts of the offending are set out in a statement of facts tendered by consent [1] which I have annexed to this judgment. I have considered a number of aspects of those facts below in the context of assessing the circumstances of the offending, its objective seriousness and the need for adequate punishment.

Before considering the specific circumstances of the present case, it is appropriate to set out a number of principles which apply to sentencing for terrorism-related offences. I acknowledge that, generally speaking, such principles have been developed in the context of sentencing for offences of greater gravity than those to which the present offender has pleaded guilty. However in my view, they necessarily remain of guidance in determining an appropriate sentence in the present case.

Firstly, the predominant considerations in sentencing an offender charged with a terrorism-related offence include protection of the community, punishment of the offender, denunciation of the offence, specific deterrence and general deterrence. [2] Where it is not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance. [3]

Secondly, a terrorist act, or a terrorism offence, involves conduct which is carried out with the intention of advancing a political, religious or ideological cause. [4] That is of significance in circumstances where the advocacy offence in the present case involved the offender advocating the doing of such an act, or the commission of such an offence.

Thirdly, the religious and ideological motivation of the offender is relevant to a consideration of the issue of community protection, as well as to an assessment of the objective gravity of the offending. [5] Even if the force of ideological or religious motivations are such that deterrence may not be effective, weight must still be given to the need for general deterrence, [6]

Fourthly, the depth and extent of the radicalisation of an offender, as demonstrated by (for example) the possession of extremist material or the communication of extremist views to others, is relevant to the assessment of the objective seriousness of the offending, and will be a significant factor when considering rehabilitation and dangerousness. [7]

Fifthly, the objective seriousness of a terrorism-related offence may be affected by the extent to which the offender has been responsible for indoctrinating, or attempting to indoctrinate, others, and the vulnerability of those individuals. [8]

Sixthly, because the law recognises that immaturity can be a contributing factor, youth may be relevant to an assessment of an offender’s moral culpability. [9] However, in circumstances where there is an absence of any causal link between an offender's age and the criminal conduct, and where the offending is serious, these principles must be appropriately moderated. [10]

Finally, subjective circumstances and mitigating factors, including rehabilitation, are to be given less weight than might otherwise be the case. [11]

A number of additional, and more specific, principles have developed with respect to sentencing for an offence contrary to s 102.3(1) of the Code, (i.e. the membership offence). They include the following.

Firstly, the concept of membership of a terrorist organisation comprehends a broad range of conduct, extending from charismatic leadership to informal participation. [12]

Secondly, the fact that membership of a terrorist organisation, in and of itself, is criminalised, indicates that the notion of membership must be taken to assume a basal level of, and adherence to, the tenets of the particular organisation in question. [13]

Thirdly, the length of membership of the terrorist organisation will be a relevant consideration on sentence. [14]

Fourthly, the history, nature, conduct and philosophies of the terrorist organisation are relevant in assessing the objective seriousness of the offending, as well as the offender’s moral culpability. [15]

Fifthly, where (in a geographical sense) the terrorist organisation's past activities have occurred is relevant in assessing objective seriousness. [16]

Finally, moral culpability for a membership offence is greater if the offender joins the organisation and maintains membership, knowing of the organisation's objectives, and the method by which it seeks to achieve them. [17]

Section 16A of the Crimes Act 1914 (Cth) (the Act) sets out a number of factors which, to the extent that they are relevant and known, must be taken into account by the Court when sentencing a Federal offender. Those factors are both objective and subjective. As discussed further below, the offender has a number of subjective considerations in his favour. In assessing those considerations, it is necessary to remain mindful of the fact that a subjective case, no matter how strong, cannot result in the imposition of a sentence which is disproportionate to the seriousness of the offending. [18]

A consideration of all of these factors encompasses a requirement to undertake an assessment of the objective seriousness of the offending, such assessment being an essential component of the sentencing process. I am not obliged to make that assessment by placing the offending at a particular position on a notional scale of objective seriousness. [19] What is required is an identification of the facts and circumstances of the offending. [20]

I turn firstly to the membership offence.

The offender was, for a period of 5 months, a member of Islamic State (IS). IS is a prescribed terrorist organisation. It is a group which adheres to an extremist ideology, and to a corresponding extremist interpretation of Islam which is anti-western, which promotes sectarian violence, and which targets those who do not agree with its interpretations, labelling such persons as “infidels” and “apostates”. Since its formation, IS has focused on capturing and consolidating its control over areas of Iraq and Syria. [21]

IS is regarded as one of the world's deadliest and most active terrorist organisations. It conducts daily attacks on security forces and civilians in Iraq and Syria, as well as against rival opposition groups. It also inspires, encourages, enables and directs its activities internationally. Such activities range from attacks with knives, vehicles or small arms, to complex and co-ordinated attacks with the use of firearms and explosives. Attacks which have been either claimed by, or which have been reliably attributed to, IS, include attacks carried out in Baghdad, Istanbul, Berlin, Nice, Orlando and Paris. [22] The fact that this is so serves as some indication of the geographical reach of IS and its extremist activities. It also demonstrates that as an organisation, IS is not simply “a ragtag collection of malcontents whose commitment to terror never advances further than a conception that one day, some time, they will undertake a terrorist act of as yet undetermined nature and scope”. Rather, it is an organisation “with a proven record of committing the worst terrorist attacks imaginable”. [23] That the offender was an admitted member of such an organisation is, of itself, significant and reflects the objective seriousness of his offending.

I accept that the offender’s membership of IS was in the nature of an informal arrangement. I also accept that he did not occupy any position of authority or leadership within IS, and that he has now renounced his membership. [24] These factors were explained in his evidence: [25]

All of that said, the fact of the offender’s membership assumes, without more, a basal adherence to the tenets of IS. In the present case, that assumption is confirmed by the fact that during the period of his membership, the offender’s conduct reflected an unbridled commitment to, and an unequivocal embracement of, the philosophies of IS, its objectives, and the violent and unlawful methods by which it seeks to achieve them. That this is so is typified by examples of the offender’s conduct.

On 7 August 2019 the offender created footage featuring a young child in a school uniform wearing the offender’s black and white balaclava and displaying the finger of Tawheed, a gesture which is an integral part of IS symbology, and which serves as an affirmation of commitment to the ideals of IS. [26] In that footage the child and the offender had the following exchange: [27]

On another occasion, the offender saved an image of his face wrapped in a shemagh, which is a form of head covering worn by jihadists (amongst others). [28] The offender, displaying the finger of Tawheed, was with a young person who was well known to him, and who was wearing his (i.e. the offender’s) balaclava. An image of the IS flag was superimposed onto the young person’s forehead. [29]

The Crown cross-examined the offender generally in relation to the involvement of young persons in his offending: [30]

Categorising the involvement of young persons in this way as “stupid”, particularly in circumstances where the offender was aware of the age of those persons, tends to grossly understate its significance. The fact that the offender involved those young persons in this way increases the objective seriousness of his offending.

Moreover, it is clear from the offender’s interview with police following his arrest that his membership of IS was forged, and maintained, in circumstances where he knew that IS was a terrorist organisation. In all of these circumstances, the offender’s assertions to police following his arrest that he was a “moderate Muslim” who “did not support extremist organisations or beliefs” [31] is one that I am not able to accept. It is entirely at odds with his membership of IS over the period of the offending, as well as being at odds with the depth of his demonstrated commitment to the ideals and objectives of IS, and the fervour with which he expressed it.

I turn to consider the advocacy offence.

The advocacy offence was also committed over a period of five months, during which the offender advocated the commission of three different terrorism offences, namely those of:

Generally speaking, during the period of the advocacy offence the offender used various social media platforms to promote and encourage the commission of terrorism offences, in circumstances where the offences in (i) and (iii) above carry maximum penalties of life imprisonment.

Once again, reference to particular aspects of the facts typifies the general nature of the offending.

On 12 July 2019 the offender engaged in a conversation with a young person in the course of which he sent three audio messages in the following terms: [32]

On 12 August 2019, the offender posted the following to a chat group which included two young persons: [33]

On 24 October 2019, the offender shared a martyrdom image of himself with accompanying text in the following terms: [34]

In the course of cross-examination about this material, the offender was asked: [35]

On 2 November 2019 the offender used a social media platform to edit an image of himself displaying the finger of Tawheed, with accompanying text in the following terms: [36]

In cross-examination, the offender accepted that he had created that image, [37] before the Crown asked: [38]

On 6 September 2019, the offender’s electronic device contained footage of him with his face wrapped in a shemagh. Speaking towards the camera whilst displaying the finger of Tawheed, and with a nasheed (an Arabic chant) [39] playing in the background, the offender said: [40]

This footage was shared with, and was later found on the device of, a young person. [41] When cross-examined, the offender agreed that he had created that footage, [42] before being asked: [43]

It is also significant that in advocating acts of terrorism, the offender did so by specific reference to Australia.

For example, on 3 August 2019 an image was saved to another person’s device depicting the offender standing in a utility displaying the finger of Tawheed. An IS flag was overlayed on the image, so as to give the appearance that it was painted on the side of the vehicle. Overlaying that image was a graphic bearing the word “Canberra”, and depicting Parliament House flying a black flag and the words “ready to take over or become green birds”. The image was taken in Ainslie, a suburb of the Australian Capital Territory. [44] Having agreed in cross-examination that he created that image, [45] the offender was asked: [46]

The offender also used a social media platform to send an image of the Sydney Town Hall with a watermarked black and white shahada flag on top of the building. [47] On another occasion, he saved and edited an image of a watermarked logo of the IS flag on the Tower of the Anzac Bridge in Sydney. [48]

It has previously been observed, in the context of terrorism-related offending, that Australia is, in general terms, a very safe country, and one which is far removed from the turmoil and gross disturbances that beset so many other parts of the world. [49] In reference to the fact that he had told Ms Seidler, whose report I have discussed further below, that he liked living in Australia, the offender was asked in cross-examination: [50]

In committing the advocacy offence, the offender acted in a way which had the potential to threaten the very freedom which characterises the Australian way of life, a way of life which he himself cited in his evidence as one of the advantages enjoyed by those who live in this country.

Consistent with his plea, I am satisfied that the offender advocated the commission of terrorist acts and terrorism offences over a consistent period of approximately 5 months. I am unable to accept his assertion that at the time of his offending he did not support the commission of terrorist acts. I am also unable to accept his assertion that he never supported terrorist acts in Australia. The evidence generally, and his references to Australian landmarks specifically, is overwhelmingly to the contrary. His evidence in those two respects is also entirely at odds with the consistency and fervour with which he acted, and the express terms of the material which he disseminated. For the reasons previously expressed, his conduct is rendered objectively more serious by his admission that he engaged in it in the knowledge that he was indoctrinating those younger than him with extremist beliefs.

In the course of giving sworn evidence in the sentence proceedings, the offender read a letter which was separately tendered [51] and which was in the following terms: [52]

The contrition which was expressed in that letter, about which the offender was not cross-examined, was consistent with observations of Dr Seidler which included the following: [53]

The offender also read an affidavit of Ahmed Kilani, a Muslim Prison Chaplain, of 10 August 2021, in which Mr Kilani said: [54]

In the course of giving evidence, Mr Kilani said that the offender’s expressions of regret were a ‘consistent message’ throughout all of their interactions. [55] Sworn evidence given by the offender's mother [56] and his stepfather [57] was to similar effect, as were the contents a number of the testimonials tendered on the offender's behalf. [58]

In all of the circumstances I am satisfied that the offender is genuinely contrite for his offending.

Section 16A(2)(g) requires the Court to take into account the offender’s pleas of guilty, together with the timing of those pleas and the degree to which they have resulted in any benefit to the community, or any victim of, or witness to, the offending. The Court may apply a discount to reflect the utilitarian value of such pleas. [59] Their timing will determine, to a large extent, the level of such discount. [60] It was submitted on behalf of the offender that in circumstances where the pleas of guilty were entered in the Local Court, the appropriate discount was one of 25%. The Crown did not cavil with that submission and in my view that discount is appropriate.

I have already expressed the conclusion that I am satisfied that the offender is genuinely contrite. For the reasons expressed further below, I am also satisfied that his prospects of rehabilitation are favourable. In these circumstances, although personal deterrence still has some role to play on sentence, its significance is reduced.

Subject to my discussion below regarding the offender’s age and its effect on sentence, general deterrence remains a predominant consideration. That arises, in part, from the fact that terrorism it is an increasing evil not only in Australia, but around the world. [61]

The offender is currently 23 years of age, and was 21 years of age at the time of his offending. His criminal history is limited to an offence of common assault in 2017 for which he was given a 12 month bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). A number of testimonials were tendered on the offender's behalf, the authors of which variously described him as “cheerful and caring", “sincere” and “kind”. [62] Such appellations obviously describe the offender’s behaviour outside of his offending.

In terms of the offender’s background, I draw the following summary from the report of Dr Seidler. [63]

The offender is the only child of his natural parents, whose relationship broke down when he was very young. The offender’s natural father has played little role in his life. He was raised by his mother and stepfather and described his childhood, and his development, as “normal”.

The offender attended two different primary schools (as a consequence of a family relocation), and one secondary school. He told Ms Seidler that he was not a particularly academically-inclined student, and that he did not achieve well, to the point where he often failed subjects. He left school in Year 10. In doing so, he apparently rejected a recommendation that he repeat that year, although there is a reference in one of the testimonials to his having completed Year 10 at TAFE. [64] The offender told Ms Seidler that his behaviour at school was poor, and resulted in frequent suspensions for misbehaviour.

After leaving school, the offender commenced a plumbing apprenticeship which he was pursing at the time of his arrest. He had worked in a number of different plumbing roles, but was unemployed for periods of several months at a time. He reported to Ms Seidler that he had been terminated from his employment on two separate occasions.

The offender told Ms Seidler that he has been in good health for most of his life. He said he first smoked cannabis at about the age of 14, following which he went through what he described as binge periods of cannabis use. However, he denied actual dependence on cannabis, and stated that he had discontinued using it in the period leading up to his arrest, which coincided with disconnecting from a number of his peers who were regular users of that drug. The offender told Ms Seidler that he first used cocaine at the age of 17 and that cocaine was his “drug of choice”, to the point where he would use it every weekend, with such use increasing during “binge” periods. The offender said that his use of cocaine was motivated by a desire to have fun with his friends. He denied the use of any other illicit substances, be it on an experimental basis or otherwise.

In terms of his religious beliefs, the offender told Ms Seidler that he was raised to practice the Islamic faith. He said that when he was about 14 years of age he had met a number of people who were “street preaching” in his local area, and with whom he had reconnected (by chance) in around February 2019, a time which marked the commencement of his present offending. He said that up until February 2019, religion had not been a part of his life. His history to Ms Seidler included the following: [65]

Ms Seidler went on to say: [66]

She continued: [67]

The offender did not specifically address the precise circumstances in which he became involved in the offending, be it in his statement or in his oral evidence. He did however, make reference to “just blindly following people” and the “mistakes of blindly following people, listening to propaganda and not doing your own research or investigation into what they say, or your religion”. [68] I interpret those references as reflecting, at least in part, the offender’s assessment of some of the circumstances in which he came to offend.

Ms Seidler concluded: [69]

The various circumstances to which Ms Seidler referred, along with the offender’s evidence and his age, necessitate a consideration of principles which apply to the sentencing of young offenders. I reviewed those principles in R v Khalid & Ors [70] and their essence may be summarised as follows.

In sentencing a young offender, considerations of general deterrence and principles of retribution will, in many cases, be of less significance than they would be when sentencing an adult for the same offence. Such an approach recognises the capacity for young people to reform, and to mould their character to conform to society’s norms. In these circumstances, emphasis is placed on the need to provide an opportunity for rehabilitation. The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to the commission of an offence, and it is for that reason that an allowance will be made for an offender's youth, and not just his or her biological age. Where the maturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult.

However, that does not mean that considerations of general deterrence and retribution can be completely ignored in the present case. There remains a significant public interest in deterring anti-social conduct. The emphasis on rehabilitation when sentencing a young offender may be moderated when that offender conducts himself or herself in the way in which an adult might, or commits a crime of violence or one of considerable gravity. Retribution and deterrence cannot, in a serious case, give way entirely, or perhaps even substantially, to the interests of rehabilitation.

The evidence in the present case tends to support a conclusion that as a result of his age and his vulnerability, the offender was, to a degree, “drawn” into the offending by others. To that extent I am prepared to accept that his immaturity played a part in his offending and that is a factor which I have taken into account in accordance with the principles to which I have referred. However, it is necessary to again emphasise that considerations of general deterrence cannot be cast aside entirely in determining an appropriate sentence. As Sully J put it in R v Mastronardi, [71] youth, whether it is real, or merely comparative, or defined with a generous elasticity, is not a cloak of convenience behind which those who engage in criminal behaviour can shelter from the just consequences of their conduct.

In his letter to the Court the offender expressed a belief that he had “strong prospects for rehabilitation”. In his oral evidence, he unequivocally stated that he had renounced his membership of IS, and he acknowledged that “everything [he] said” (i.e. when offending) was “false and wrong”. [72] He made similar statements to Dr Seidler. [73]

In his evidence in chief, the offender was asked: [74]

The offender’s evidence in this regard was not the subject of any direct challenge in cross-examination. That does not, of itself, lead to the inevitable conclusion that the offender’s evidence as to his stated change of position must be accepted. However, the Crown did not advance any reason which would cause me to reject it. [75] I do accept the evidence of the offender in these respects.

I have previously noted [76] that where it is not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance. The corollary of that proposition must be that where the Court is so satisfied, some allowance should be made for that fact because the need for protection of the community is to some extent reduced. [77] I have proceeded on that basis in sentencing the offender.

In terms of his progress in custody, the offender confirmed that he is participating in remedial programs and that he is open to continuing to do so. [78] His unchallenged evidence [79] was that he had been moved to a less restrictive section of the gaol because of “following the rules and compliance with staff”. A series of case notes formed part of the evidence [80] which, generally speaking, support a conclusion that the offender has already made some meaningful progress in terms of his rehabilitation. For example, a note of 18 December 2020 was in the following terms:

A note of 23 March 2021 is in the following terms:

The offender gave the following evidence as to his plans for his release: [81]

This evidence was generally consistent with the offender’s history to Dr Seidler, the veracity of which he confirmed on oath. [82] On the basis of that history, and whilst acknowledging the limited risk assessment tools which are available in respect of offending of this nature, Dr Seidler said the following: [83]

Dr Seidler went onto express the following opinion: [84]

The offender’s efforts towards rehabilitation are, and will continue to be, supported by those closest to him, including his mother, [85] his stepfather, [86] and Mr Kilani. [87] When asked whether he believed that the offender would engage in radical extremist behaviour again, the offender's stepfather said: [88]

Mr Kilani was asked: [89]

Mr Kilani confirmed that he would be happy to continue to work with the offender both in custody, as well as on release at the completion of his sentence. [90]

The testimonials which were tendered in the offender's case lend further support the conclusion that he will receive considerable assistance in his efforts towards rehabilitation when he is released. [91] There is also evidence that upon his release, the offender will have employment. [92] All of these matters point in a positive direction.

However, the italicised portions of Ms Seidler’s report set out above incorporate an important qualification of her overall opinion. Clearly, Ms Seidler’s view is that the offender’s successful rehabilitation is dependent upon his not resuming associations with persons of extremist beliefs. With that in mind, it is a matter of concern that in May 2020, some 6 months following his arrest, police attended the correctional facility in which the offender was held and executed a number of search warrants, including a warrant on the cell that he occupied at the time. Three letters, addressed to the offender as “Abu Musa al-Maqdisi”, were seized. The significance of those letters is twofold.

Firstly, “Abu Musa al-Maqdisi” is a name which was adopted by the offender to identify himself as the author of two martyrdom images. [93]

Secondly, and perhaps even more significantly, one of the inmates who sent the letters to the offender was Isaac El-Matari (El Matari), a known member of IS and a person who declared himself to be the Commander of IS in Australia, and the General Commander of the Sydney region. El Matari and the offender associated during the period of his offending. [94]

There is no indication of the content of this correspondence or the circumstances in which it came into existence. There is also no evidence of the nature and extent of any association that the offender may have had with El Matari in custody up to May 2020. It is noteworthy that El Matari is not one of those with whom the offender is presently approved to associate with in custody. [95]

These interactions occurred some 18 months ago. In the intervening period the offender has had, amongst other things, the benefit of Mr Kilani’s intervention. However, such interactions highlight the fact that the threat to which Ms Seidler referred can reoccur. The offender’s prospects of rehabilitation are largely dependent on his choosing not to associate with persons such as El Matari, who hold extremist beliefs, and at the hands of whom he is in danger of being influenced. The circumstances to which I have referred above cause me to express some note of caution, in what is an otherwise generally favourable assessment of the offender’s prospects of rehabilitation.

Although s 16A sets out a series of mandatory considerations which the Court must take into account, the section does not constitute an exhaustive list of matters which are relevant on sentence. One matter which is relevant, for which s 16A makes no specific provision, is the offender's conditions of custody. Those conditions, which are obviously onerous, are set out in the affidavits of Allyson Brown of 27 August 2021 and 15 September 2021.

Ms Brown gave oral evidence regarding periods of time in which there are “lockdowns” of the custodial facility in which the offender is held. Her evidence was that there were, at one point, an average of five lockdowns per month, [96] although calculations made by the offender himself suggest that the figure might be higher. There are also some differing views on the evidence as to what constitutes a “lockdown”. It is sufficient for present purposes to note three matters regarding the offender’s conditions of custody. Firstly, the conditions are, in an overall sense, onerous, consistent with the high risk facility in which he is held. Secondly, they are rendered more so by the frequency of lockdowns which, on any interpretation, further restrict the offender’s movements. Thirdly, the offender’s conditions of custody are rendered more onerous by the current pandemic, one of the effects of which is to restrict personal visits. I have taken all of these factors into account.

There is considerable overlap between the membership offence and the advocacy offence. They occurred over the same period of time and had their respective origins in the same extreme ideology. However, being a member of a terrorist organisation is one thing. Advocating the commission of acts of terrorism, and terrorism offences, is quite another. In these circumstances, counsel for the offender properly acknowledged that it would be open to me to partially accumulate the sentences in order to reflect the different aspects of the two offences. However he submitted, and I accept, that having regard to the principle of totality, a substantial degree of concurrency is nevertheless warranted.

I make the following orders: