Al Maouie v R

1. [1]

   PAYNE JA: I agree with Harrison J.

2. [2]

   ROTHMAN J: I agree with orders proposed by Harrison J and generally with his Honour’s reasons. Apart from that which follows, I agree fully with his Honour’s reasons.

3. [3]

   I do not consider that the words used by the applicant are incomprehensible. Nor do I accept, when dealing with a document compiled by a number of persons, that the words used by one of them should be read otherwise than in the context of the document as a whole, unless it can be said that the relevant author was unaware of the document as a whole.

4. [4]

   Other than in those respects, I agree fully with the reasons of Harrison J. The above issues do not, in my view, affect the correctness of the sentence proposed by Harrison J. The maximum sentence for this offence is 15 years imprisonment. Given my agreement with Harrison J as to the appropriate assessment of objective seriousness, I consider the sentence proposed by Harrison J to be most appropriate for the offence and the offender.

5. [5]

   HARRISON J: On 19 July 2017, Mohamed Al Maouie and his co-accused Farhad Said pleaded guilty to an offence contrary to s 101.5(1) of the Criminal Code Act 1995 (Cth) in the following terms:

6. [6]

   An offence contrary to s 101.5(1) of the Code carries a maximum penalty of 15 years imprisonment.

7. [7]

   Both the applicant and Mr Said were sentenced by Bellew J on 3 November 2017 for that offence. As part of the same sentencing proceedings, Sulayman Khalid, IM and Jibryl Al Maouie (the applicant’s brother) were sentenced after pleading guilty to the different offence of conspiring with each other to do acts in preparation for a terrorist act (or acts) contrary to ss 11.5 and 101.6(1) of the Criminal Code (Cth). That offence carried a maximum penalty of life imprisonment. Another co-offender, Ibrahim Ghazzawy, had earlier been sentenced by his Honour on 8 May 2019 for a similar offence to the applicant.

8. [8]

   The applicant was sentenced to a term of 9 years imprisonment with a non-parole period of 6 years and 9 months commencing on 23 December 2015. By virtue of the definition of “terrorism offence” in s 3 of the Crimes Act 1914 (Cth), an offence contrary to s 101.5(1) is a terrorism offence. Section 19AG of the Crimes Act requires offenders who are sentenced for terrorism offences to have a fixed non-parole period that is at least three quarters of the head sentence. Bellew J’s sentence conformed precisely with that requirement. The applicant’s earliest possible release date is therefore 23 September 2022. His full term is due to expire on 22 December 2024. However, s 19ALB of the Crimes Act provides that the applicant will only be released on parole if there are “exceptional circumstances”. There is no guidance in the Crimes Act or the decided cases upon what the expression means in the context of that section of the Act.

9. [9]

   The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 on the following ground:

10. [10]

    The Crown accepts that error has been demonstrated and that the ground of appeal has been established: see Xiao v R [2018] NSWCCA 4 at [278]. It therefore becomes necessary for this Court independently to exercise the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. In that respect, the Crown maintained that apart from his Honour’s findings on the matter raised in the ground of appeal, this Court should adopt them in re-sentencing the applicant. In contrast, in addition to the need to take account of the utilitarian value of his plea, the applicant maintained that his Honour’s assessment of the objective seriousness of his offending should not be endorsed in this Court, and that a lesser sentence should be imposed in light of that contention as well as by reason of the conceded error.

Objective seriousness

1. [11]

   The applicant was sentenced by Bellew J upon the basis of a statement of agreed facts, subject only to the applicant’s insistence that he did not adhere to a religious ideology of violent jihad at the time of the offending. The statement of facts specified the particular ideology held by the applicant as being Wahhabi-Salafism that inspires ISIS, Al Qaeda and similarly minded groups and their supporters. His Honour found that the applicant was an adherent to that religious ideology at the time of the offending as contended by the Crown. The applicant does not challenge that finding in this Court.

2. [12]

   His Honour set forth at [236] the agreed facts in considerable detail in his remarks on sentence. With the following exceptions, it is unnecessary to repeat those facts here:

3. [13]

   The nature and objective seriousness of the applicant’s offending was dealt with by his Honour at [251]-[254] of his remarks on sentence as follows:

4. [14]

   The Crown contended in this Court that his Honour’s findings about the context and objective seriousness of the applicant’s offending were appropriate. In support of that contention, the Crown submitted as follows.

5. [15]

   In determining the appeals of Ibrahim Ghazzawy and Farhad Said, this Court was required to assess the objective seriousness of those offenders’ conduct. It is submitted that this Court’s determination in those cases that the objective seriousness of the offending was high supports the contention that the objective seriousness of the applicant’s similar offending in the same context was also in the upper range of seriousness.

6. [16]

   In Ghazzawy v R (Cth) [2021] NSWCCA 70 at [53], Hoeben CJ at CL concluded as follows:

7. [17]

   In Said v R [2019] NSWCCA 239 at [70]-[81], Hoeben CJ at CL reviewed the rival contentions about the objective seriousness of Mr Said’s conduct and stated in conclusion at [82]:

8. [18]

   In agreeing with the orders proposed by Hoeben CJ at CL in Said, White JA held as follows at [87]:

9. [19]

   Bellew J described the matters that he considered were important in this context at [25] – [26] as follows:

10. [20]

    The applicant submitted that the objective facts as to what he actually did are somewhat limited. He was not charged with being part of a conspiracy, so that the conduct of his co-offenders in the Khalid group do not attract any liability on his part. Even though the applicant now concedes that he adhered at the time of the offending to the religious ideology of violent jihad, and that he pleaded guilty to a serious offence, his was not a serious example of that offence.

11. [21]

    The applicant emphasised that his contribution to the “Gorilla Warfare” document was a mere 25 words. Read in the context of the balance of the document, he submitted that his contribution was “fairly meaningless” and certainly not such as to set out a plan capable of being read, understood or implemented by others. Moreover, the document was not published beyond members of the Khalid group. His contribution to the note and any other conduct by him does not reveal any planning, research, complexity or sophistication. As charged, the applicant’s conduct did not span more than a single day. Although the applicant’s mobile phone contained “terrorist images” including images of executions, ISIS flags, weapons, Australians associated with terrorism and the applicant firing a pistol at a pistol range, a presumably legal activity, there is no detail in the agreed facts about the volume or amount of such material. Finally, there was no evidence or suggestion that the applicant had been responsible, by whatever means, for indoctrinating others or of him attempting to do so.

12. [22]

    The applicant submitted that the objective seriousness of his offending fell “around the midrange, not at the upper range”. The following exchange in the course of the hearing in this Court further served to emphasise the applicant’s position on this issue:

13. [23]

    It will be recalled that his Honour’s assessment of the objective seriousness of the applicant’s offending was in “the upper range of seriousness”. That conclusion has not been challenged as a separate ground of appeal asserting that his Honour erred in arriving at that conclusion. So much emerges from the following exchange:

14. [24]

    The burden of the applicant’s contentions is that in exercising the sentencing discretion afresh, we would come to a different conclusion. This is an important distinction for the reason that the assessment of objective seriousness is well understood to be quintessentially a matter for the sentencing judge and not amenable to variation on appeal in the absence of a discrete error or the successful demonstration of manifest excess. In the events that have occurred, the matter is at large in this Court following Kentwell v The Queen.

15. [25]

    In my opinion, largely for the reasons identified by the applicant in this appeal, I would assess the objective seriousness of the offending conduct as in the mid-range. In forming that view, I have not ignored the comments of Hoeben CJ at CL and White JA in Said v R that his conduct was of a high level of seriousness.

16. [26]

    It will be recalled that Mr Said’s conduct, as described by Bellew J at [29], was relevantly as follows:

17. [27]

    His Honour assessed the seriousness of Mr Said’s conduct in the following way:

18. [28]

    Without derogating from either Bellew J’s characterisation of Mr Said’s conduct, or the concurring opinion of the majority in his case in this Court, the applicant’s conduct was a far less significant contribution to the document. It was less significant in the sense that it was considerably less articulate in its terms and, on one available view, incomprehensible standing alone. I am also not satisfied that it achieves much more significance when considered contextually. The applicant’s words do not in terms incorporate or adopt the preceding words, of which Mr Ghazzawy is the author, other than by the fact that they follow on the page. Having regard to the actual words written by the applicant, that is a fairly frail connection. It becomes even more tenuous in my view when account is taken of the fact that the words written by the applicant seem to me to be incapable of conveying any discernible meaning to anyone unless tied to the preceding entry, a doubtful proposition at best.

19. [29]

    My opinion may not in fact be as controversial as it appears at first sight. Although there are manifold reasons for distinguishing between the applicant and Mr Said, his Honour ultimately imposed a different sentence on Mr Said to reflect at least to some degree the differing roles they each played. That difference by itself ought in my view to lead to a characterisation of the objective seriousness of the applicant’s conduct as in the mid-range.

Plea of guilty

1. [30]

   The applicant’s plea of guilty was entered on 19 July 2017 when the trial was due to commence on 31 July 2017. Although it was a plea of guilty to an amended charge, it was a late plea.

2. [31]

   His Honour dealt with the applicant’s plea of guilty in the following terms:

3. [32]

   The applicant’s co-offender Mr Ghazzawy had commenced negotiations leading to his plea of guilty when the matter was still in the Local Court and he entered his plea to an indictment on 14 November 2016. The Crown expressly conceded in that case that Mr Ghazzawy’s “plea was entered at an ‘early opportunity’, albeit not at the earliest opportunity.”

4. [33]

   The way in which a sentencing court should approach the discount to be given for a plea of guilty, including discounts to be given for its utilitarian value, has been summarised by this Court in Bae v R [2020] NSWCCA 35 at [49]-[57] and R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32]. The applicant and his co-offender Mr Said both entered their pleas 12 days before the commencement of a six-week trial. In Said v R at [74]-[75], Hoeben CJ at CL said this:

5. [34]

   The Crown submitted in this Court that, despite the error upon which the applicant relies, it remains open to consider that the discount of 10% for the applicant’s guilty plea remains appropriate. Counsel for the applicant submitted that even though the plea was late, it responded to a new charge so that a discount higher than 10% to include its utilitarian value should be considered and that a plea of as much as 20% would be appropriate.

6. [35]

   The question raised by the applicant’s single ground of appeal is effectively whether his plea of guilty in fact had a utilitarian value. By close analogy with Mr Said, and in light of the consideration of that issue in this Court, I am unable to conclude that a discount of 10% in the applicant’s case was inappropriate. Put another way, even allowing for the need to incorporate the utilitarian value of the applicant’s plea in the assessment of the appropriate discount, I consider that a discount of 10% adequately does so in his case.

Parity

1. [36]

   As noted earlier, the Crown accepts and adopts Bellew J’s findings in this appeal. That necessarily includes his Honour’s assessment of the relativity between the objective and subjective features of the applicant and Mr Said in particular at [288] as follows:

2. [37]

   In those circumstances, the Crown accepts that an application of the parity principle might result in this Court determining that the sentence that would otherwise be in order to impose upon the applicant should be reduced to some degree to stand in appropriate relativity to the reduced nine year head sentence imposed in this Court upon Mr Said.

3. [38]

   In my view, the decision of this Court in Said v R also logically compels its consideration as a persuasive and favourable comparator in this case.

New material

1. [39]

   The applicant seeks to rely in this appeal on material that has come into existence since the imposition of the original sentence. That material consists of an affidavit of the applicant’s mother Raowa Haddad affirmed on 24 January 2022 and an affidavit from his solicitor Stephen Eccleshall affirmed on 21 January 2022. The Crown did not oppose this Court receiving that material for the purpose of re-sentencing. Among other things, that material reveals the following.

2. [40]

   The applicant has been at the high-risk management unit and classified as an extreme high-risk inmate for virtually the entire time of his sentence up until last year when he was transferred to South Coast Correctional Centre. Approximately twenty percent of the time that he has spent at the HRMU has been spent in lockdown in his cell. That cell is two metres by three metres wide. This has led to an extremely difficult custodial sentence. His classification has now been changed to A2, although he is still regarded as a maximum security prisoner. Since moving from the HRMU, he was permitted to have his first contact visit in six years.

3. [41]

   The applicant is now considered to be in the low risk category for violent re-offending. His overall risk profile for extremist violence offending/re-offending has been assessed as being in the low to moderate range.

4. [42]

   The applicant continues to maintain that he has never subscribed to an ideology that would talk about violence, contrary to the agreed facts. However, he does not support violence in Australia and would not want to see any violence perpetuated here as an act of terrorism. The applicant considers that in the right circumstances overseas, if there were a caliphate, he would participate in the fighting.

5. [43]

   Mr Eccleshall’s affidavit reveals that the applicant has been involved in three breaches of prison discipline and that he was sentenced in the District Court on 25 January 2019 for the offence of “destroy property in company using fire.” In an internal report by prison authorities contained in the material annexed to the affidavit, the following is recorded under the heading “Institutional Behaviour”:

6. [44]

   As a result of his sentence, the applicant’s non-parole period has been increased by three months.

7. [45]

   The applicant has the support of his mother. She considers that he has matured. The applicant has a home available to him on his release.

8. [46]

   This new material raises at least two matters of significance.

9. [47]

   First, the extent to which an applicant’s conditions of incarceration can or should be taken into account in determining the appropriate sentence. It may be accepted that a court can consider such conditions, and the extent to which they might be harsher than those experienced by the general prison population, as a matter that may, but will not necessarily or inevitably, provide a basis for reducing the sentence to some degree or support a finding of special circumstances: R v Farhad Qaumi [2017] NSWSC 774 at [162]; R v Durocher-Yvon (2003) 58 NSWLR 581; [2003] NSWCCA 299 at [19]. There must, however, be evidence of the conditions and a sentencing judge cannot assume that the conditions will be harsher based simply on the category of inmate into which the offender fits: Qaumi at [162]. These considerations are of limited weight in cases where the harsher or more onerous conditions are a function of the nature of the offending in question.

10. [48]

    The new material relied upon by the applicant in this case supports the fact that his custodial conditions in the HRMU were particularly onerous. However, in the sentence proceedings before Bellew J, reliance was placed by the applicant upon the anticipated conditions of incarceration he would encounter while serving his sentence as well as those already experienced by him on remand.

11. [49]

    In Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73 at [101]-[104] I adverted to this issue in the following terms:

12. [50]

    I consider that to the extent to which the applicant’s custodial conditions are established by the material upon which he relied at the sentencing hearing, and the new material relied upon in this Court, to be more onerous than those experienced by the general prison population, it is appropriate to take it into account on re-sentence.

13. [51]

    Secondly, the significance or otherwise of the applicant’s behaviour whilst in custody. The Crown submitted in this Court that the new material tendered by the applicant, which necessarily includes evidence of his disciplinary record in gaol, would not cause this Court to take a substantially different view of his prospects of rehabilitation than that taken by Bellew J. Limited to the disciplinary material, I consider that it does not materially inform the applicant’s prospects of rehabilitation and I would not be minded to give it any particular weight. On the one hand, the applicant has already been dealt with for the fire offence and sentenced accordingly. On the other hand, I remain of the view that with some obvious exceptions, of which the applicant’s custodial record is not one, prison infractions are of very little assistance to a sentencing tribunal. My remarks in Quinlan v R [2021] NSWCCA 21 at [35]-[36] should be noted:

14. [52]

    I do not consider that the applicant’s custodial record helpfully informs his prospects of rehabilitation and I propose to put it to one side.

Leave to appeal out of time

1. [53]

   The applicant requires leave to appeal out of time. An explanation for the delay is comprehensively dealt with in the affidavit of Mr Eccleshall affirmed on 17 September 2021. Having regard to the contents of that affidavit, the Crown does not oppose the grant of leave from this Court to extend time as required. I consider that an order extending time is appropriate.

Re-sentence

1. [54]

   Taking account of the matters to which I have referred, I consider that the following orders should be made:

   1. (1)

      Pursuant to s 10(1)(b) of the Criminal Appeal Act 1912, extend the time for the filing of the applicant’s notice of appeal to 17 September 2021.

   2. (2)

      Grant leave to appeal against sentence.

   3. (3)

      Allow the appeal against sentence.

   4. (4)

      Quash the sentence imposed upon the applicant by Bellew J on 3 November 2017 and in lieu thereof sentence the applicant to imprisonment for 8 years comprising a non-parole period of 6 years commencing on 23 December 2015 and expiring on 22 December 2021 with a balance of term of 2 years expiring on 22 December 2023.

   5. (5)

      Pursuant to s 105A.23 of the Criminal Code, the applicant is warned that an application may be made for a continuing detention order requiring him to be detained after the completion of his sentence.