R v HG

1. [1]

   On 24 July 2018 HG, a young person to whom I shall refer as the offender, pleaded not guilty to a charge that between about 6 October 2016 and 12 October 2016, at Sydney in the State of NSW, he did acts in preparation for, or planning, a terrorist act or acts [1] . On 3 September 2018, following a trial, the offender was found guilty by a jury of that offence, which carries a maximum penalty of life imprisonment. The jury could not reach a verdict in respect of an alleged co-offender with whom the offender stood trial.

THE EVIDENCE ON SENTENCE

1. [2]

   The Crown tendered a folder of material [2] which included:

2. [3]

   Senior counsel for the offender tendered a folder of material [3] which included:

3. [4]

   In addition, the offender gave oral evidence on sentence and was extensively cross-examined by the Crown. Generally speaking, the offender made it clear that he does not accept the jury’s verdict. He proclaimed his innocence [4] and denied that he was engaged in preparing for, or planning, any terrorist act [5] . He sought to advance innocent explanations for various circumstances and events upon which the Crown had relied at the trial. He stated, in particular, that he was in possession of knives with the intention of using them for “purely recreational activities, outdoor recreation, going hunting, going camping etc” [6] . Such explanations had been put to the jury on the offender’s behalf by senior counsel who appeared at his trial. Given the verdict, the jury clearly rejected them. I have discussed these matters in more detail later in this judgment.

PRINCIPLES APPLICABLE TO SENTENCING FOR TERRORISM OFFENCES

1. [5]

   At the outset, it is necessary to bear in mind that the statutory provisions creating these types of offences are directed to preparatory acts. The seriousness with which the Parliament views those acts is clear from the prescribed maximum penalty of life imprisonment. The extended range of conduct which is subject to criminal sanction as a consequence of these provisions obviously goes well beyond that which had previously been regarded as criminal. However, by enacting the legislation, and by prescribing a maximum penalty of life imprisonment, the Parliament has given a clear indication that the threat of terrorist activity requires the imposition of severe punishment [7] .

2. [6]

   In R v Khalid and ors. [8] I summarised the principles relating to the sentencing of terrorism offenders as follows [9] :

3. [7]

   Consistent with these general principles, there have been repeated statements that substantial sentences are warranted for offending of this nature. The rationale for that approach is based not only upon the considerations to which I have already referred, but also upon the fact that the offending is hard to detect, and is often committed by members of the community who are persons of prior good character and who have favourable backgrounds [16] .

4. [8]

   In R v Barot [17] the Court of Appeal of the United Kingdom put the matter in this way:

Finding the facts of the offending for the purposes of sentence

1. [9]

   For the purposes of determining an appropriate sentence, I am required to make findings of fact in relation to the circumstances of the offending [18] . Any findings I make must be consistent with the jury’s verdict. I must accept such facts as are established by that verdict, and I must not determine any factual issue in a way which is inconsistent with it [19] . The Crown bears the onus of satisfying me, beyond reasonable doubt, of any finding of fact against the offender. The offender bears the onus of proving factual matters in mitigation on the balance of probabilities [20] .

The offender’s ideology

1. [10]

   As long ago as October 2012 the offender advocated extremist and radical religious views. At that time, when just 12 years of age, he was photographed at a protest in Hyde Park in the Sydney CBD holding a sign bearing the words:

2. [11]

   There was also evidence in the trial that in 2014 the offender refused to stand for the National Anthem at a school assembly, telling the Principal at the time that he “did not stand for anybody except Allah”.

3. [12]

   The affidavit sworn by the offender’s father made reference to the fact that for a period of time prior to the offending, the offender had appeared to moderate his views. Having referred to his separation from the offender’s mother, the offender’s father stated [22] :

4. [13]

   There was evidence before the jury that for a period of time in early to mid-2016 the offender had appeared to express more moderate views [23] . However, on 17 June 2016 the offender posted the following message on his Facebook account [24] :

5. [14]

   It is relevant to note that:

6. [15]

   I accept the Crown’s submission that this post was, in effect, an apology by the offender for departing from his previous extremist stance. Whatever moderated stance he may have then taken, this post marked his return to extremism. Significantly, this was only a matter of months prior to his offending.

7. [16]

   In the course of his evidence the offender maintained that he was “pressured” to resume his support of extremist ideology [26] :

8. [17]

   The offender also said that his step-father had at one point “stopped associating” with him, and had “told him off”, for expressing disagreement with the views of Islamic State [27] .

9. [18]

   On the whole, the offender’s evidence in this regard was somewhat nebulous. Although it was not put in strict terms, it appeared to be suggested that his return to extremist ideology was the result of some form of non-exculpatory duress which manifested itself in pressure from his family, as well as others. I am satisfied that the offender’s return to extremist ideology in or about mid-2016 was the product of his own conscious volition, and was unencumbered by any pressure or influence from others.

10. [19]

    On the day of the offender’s arrest, police searched his home and seized a number of items including a mobile telephone and a laptop computer. Forensic analysis of those items identified the presence of a large amount of what might be generally described as radical and extremist material, including images, videos and messages (“the extremist material”). That analysis also identified a number of internet searches conducted by the offender, the terms of some of which were consistent with the offender having extreme views.

11. [20]

    Documentary summaries of the extremist material were tendered by the Crown, without objection, in the offender’s trial [28] . No issue was taken at that time that it was, in fact, the offender who was responsible for operating the various email and internet accounts [29] . However, in the course of being cross-examined by the Crown in the sentence proceedings the offender asserted, for the first time, that others who had used him as a “minion” were responsible for posting some of the items which were found on his devices [30] , and operating one or other of his email accounts [31] . He even went so far as to assert that “his legal team forgot to tender” material which was said to make good those assertions [32] . When asked who these other people were, the offender said that he “didn’t know exactly” [33] .

12. [21]

    Given the position taken on behalf of the offender at the trial (which I infer was in accordance with his instructions), and given the inherently vague nature of what the offender said in evidence, I do not accept his assertion that others were responsible for posting material on his accounts, or for any related activity. I am satisfied that the offender’s evidence in this respect amounted to nothing more than a series of answers of convenience which were given by him in an attempt to minimise his culpability.

13. [22]

    Also tendered before the jury were three other documents relating, generally speaking, to the offender’s internet use. The first, which was tendered by the Crown, was headed “Defence Internet History” [34] . It recorded searches undertaken by the offender for material of a generally non-extremist nature, using key words such as “first aid kit”, “best all round hunting rifle” and “10 tips to avoid bee stings”. The second and third documents [35] were tendered in the offender’s case and set out other internet searches he had undertaken using key words such as “Australian bush danger” and “wasp what to do”. On the basis of this (and other) evidence, senior counsel for the offender put to the jury an alternative hypothesis to that advanced by the Crown, namely that the offender’s conduct (to which I will come in more detail) was associated with a completely innocent purpose, namely an interest in hunting and camping. Clearly, the jury rejected that hypothesis. However, as I have discussed in more detail later in this judgment, the offender again sought to advance that alternative hypothesis in his evidence before me. For reasons to which I will come, and leaving aside that it is generally inconsistent with the jury’s verdict, I do not accept his evidence in that regard.

14. [23]

    I do not propose to set out the extremist material in its entirety. At this stage, a brief reference to some aspects of it is all that is necessary to gauge its general tenor.

15. [24]

    On 13 September 2016 the offender searched the phrase “whoever attacks you then attack them” [36] . He then posted an article entitled “a Muslim woman was just set on fire in the middle of NYC” which was accompanied by the words [37] :

16. [25]

    On 8 October 2016 the offender searched the phrase “whoever attacks you then attack them ibn cathir [38] . He also accessed an image bearing the words [39] :

17. [26]

    On 9 October 2016 the offender posted footage to his Facebook page entitled “scared American. MP4” accompanied by the message [40] :

18. [27]

    Such material, and indeed the extremist material generally, is obviously consistent with the offender having an extremist and radical ideology which advocated violence. When giving evidence before me the offender was asked about the extent of that ideology at the time of his offending. Although he drew a distinction between being, on the one hand, sympathetic to the views of organisations such as Islamic State, and on the other hand, being supportive of such views [41] , he agreed that at the time of his offending he had extreme views as a Muslim [42] , that he was an extreme young man who had radical views in general [43] , and that he held extreme Salafist views [44] .

19. [28]

    However, despite admitting that he held such views, the offender asserted that he did not believe in violence [45] . I do not accept that to be the case. It is completely contrary to the nature of the extremist material, and the beliefs that the offender said that he held. It is also contrary to the terms of notes written by the offender [46] which were found in his cell following his arrest [47] , the text of one of which was as follows [48] :

20. [29]

    When asked what he meant by those words the offender said [49] :

21. [30]

    When asked whether the reference to “worshippers of the Cross and idols” was a reference to Christians, the offender replied [50] :

22. [31]

    The evidence overwhelmingly supports the conclusion that at the time of his offending, the offender held radical and extreme views which advocated the perpetration of violence on those who did not hold such views. The extremist material, along with the other evidence to which I have referred is not, as the offender would apparently have it, a reflection of his interest in world affairs. That general proposition was advanced on his behalf at his trial. The verdict of the jury is wholly consistent with its rejection.

The events of 6 October 2016

1. [32]

   On 6 October 2016 the offender attended the Bankstown Gun Shop with the co-offender and purchased two fixed-blade knives. At the time, he told the shop attendant that he wanted the knives to go pig hunting, and that he thus required “pig hunting knives”.

2. [33]

   The offender took issue with the proposition that his reference to “pig” in this context was a reference to police [51] . He maintained that it was a reference to hunting animals such as pigs and deer. He said that he had been “told by his aunty’s husband” that the knives that he had purchased were “good for killing an animal”, and that he had purchased the knives for “general hunting” and “outdoor recreation” [52] . I do not accept any of that to be the case. Any suggestion that the offender was not referring to police when he made a reference to “pig hunting” when purchasing knives on 6 October is entirely at odds with the fact that at the time of his arrest he repeatedly called the police “pigs” [53] . It is equally at odds with the fact that on 8 October 2016, only a matter of days before his arrest, the offender accessed an image of a pig standing beside a police car and looking into the window. The caption in the photo was:

The events of 11 October 2016

1. [34]

   On the afternoon of 11 October 2016, in the company of the co-offender, the offender used his mobile telephone to search the internet and at about 4:16pm he obtained a screen shot of the opening hours of the Bankstown Gun Shop [55] .

The events of 12 October 2016

1. [35]

   At about 9:56am on 12 October 2016 the offender left his home in the company of the co-offender. They went to the Max Parker Leisure and Aquatic Centre in Revesby. Each was carrying a backpack. They entered the centre and walked to the vicinity of the grandstand. The offender then attended at the kiosk and purchased some food before returning to where the co-offender was waiting. They then went and sat behind a grandstand where they remained for a period of about 11 minutes [56] .

2. [36]

   The offender and the co-offender then left the Centre and returned to the offender’s home at about 10:33am. A few minutes later, again in possession of backpacks, they left the offender’s home and caught a bus to Bankstown. When the offender departed his premises he left his mobile phone behind. He was, however, in possession of a “Casio G-Shock” watch which was recovered at the time of his arrest. On 3 October 2016, he had conducted a search on the internet using the key words “can ur gshock be tracked” [57] .

3. [37]

   On arrival at Bankstown, the offender and the co-offender went to the Bankstown Gun Shop. The offender entered the shop and the co-offender waited outside. The offender purchased two “M-9 Bayonet” knives, each of which had a fixed blade with a partially serrated edge. He also purchased a knife sharpener. He paid $230.00 in cash for the three items, following which he left the shop. He met the co-offender outside before entering a newsagency next door where he asked the attendant for a bag in which to place the knives. The attendant advised the offender that she did not have one. The offender then left the shop and returned to where the co-offender was waiting for him. The two of them then rearranged the contents of the co-offender’s backpack, discarding a number of items in a nearby rubbish bin to make room for the knives which were then secreted inside the backpack.

4. [38]

   The offender and the co-offender then went to a Musallah (an Islamic prayer hall) located at Adnum Lane, Bankstown. Between about 10:30am and 11:00am they were together inside a bathroom at the Musallah, with the door locked. One of the residents knocked on the bathroom door and asked them to come out. They then exited the bathroom, the offender telling the resident that he had been showing the co-offender how to wash in preparation for prayers.

5. [39]

   A short time later, police attended the Musallah. The co-offender was located sitting on the floor inside. The offender walked out from behind a kitchen area and was asked by the police to come outside. The offender complied and walked onto the balcony of the premises where he was searched, handcuffed and arrested. When arrested, the offender, in a stark expression of his ideology, shouted at police:

6. [40]

   When told by the police to sit down, the offender responded:

Items recovered at the time of the offender’s arrest

1. [41]

   At the time of the offender’s arrest police seized the backpacks. In the backpack which had been carried by the co-offender, police found the two knives which had been purchased earlier that day, a receipt from the Bankstown Gun Shop, and two sets of clothing, one black and one white. Police also found a note written partly in Arabic and partly in English [58] . The English translation of the Arabic script [59] was in the following terms:

2. [42]

   The (incomplete) English script was as follows:

3. [43]

   The offender said in evidence before me that he did not write any part of the note [60] although he admitted being responsible for placing it in the co-offender’s backpack [61] . Forensic examination established that the scientific properties of the paper on which the note was written were consistent with those of a quantity of paper seized during a search of the offender’s home on the day of his arrest. The offender admitted that the paper on which the note was written had come from his home [62] . It was put to him in cross-examination that the note contained a “bayah”, or pledge of allegiance. He denied that this was the case [63] . I do not accept that denial, for the simple reason that it is fundamentally inconsistent with that part of the note which made express reference to the necessity “to pledge allegiance to the Caliph”, the Caliph being the successor to the Prophet Mohammed who rules over the Khalifah [64] .

4. [44]

   In the backpack which had been carried by the offender police found several items of dark clothing, a camouflage-patterned cap (the sides of which extended below the ears and which the offender was seen wearing when he entered the Bankstown Gun Shop earlier in the day) and two sets of what were described in evidence as neck gaiters. The offender accepted that the neck gaiters could be used to disguise a person’s face [65] . However, he maintained that he had put the neck gaiters in his backpack when he had purchased them, and that he had simply forgotten that they were there [66] . Bearing in mind the entirety of the evidence, I do not accept that explanation. The fact that the neck gaiters were in the backpack was not inadvertent.

5. [45]

   Police also located a “Casio G-Shock” watch in the bathroom at the Musallah where the offender had been a short time before his arrest. As I have already noted [67] the offender had previously conducted a search, the obvious purpose of which was to determine whether a person could be located through the operation of such a device. I am satisfied that it was the offender who left the watch in the bathroom and that he did so deliberately, in an effort to ensure that he could not be located when he left the Musallah.

6. [46]

   I have already made reference, in the context of addressing the issue of the offender’s ideology, to a small sample of the extremist material [68] . Some further parts of that material are significant in assessing the events of 12 October. They concern a magazine called “Rumiyah” which is a publication of Islamic State [69] . Issue 1 of Rumiyah [70] was downloaded by the offender to his mobile phone on 8 September 2016 [71] . In an article entitled “Among the believers are men: Abu Mansur al-Muhajir”, the following was stated [72] :

7. [47]

   A little more than a month after he had downloaded this publication, the offender was arrested, effectively on the streets of Bankstown, in possession of knives and various other accoutrements which were consistent with an imminent act of terrorism. In those circumstances, the exhortation to “kill them on the streets of ….. Bankstown” which appeared in the article is of obvious significance.

8. [48]

   When cross-examined about the article [73] , the offender repeatedly sought to downplay that significance. He said, amongst other things, that the article would not have been “very interesting” but would have been “a bit interesting” [74] to him. He attributed that interest to nothing more than the fact that he was born and raised in Australia [75] and grew up in Bankstown [76] . At one point in his evidence, the offender asserted that he could not remember if he had read the article at all but thought that he had not [77] . He then contradicted himself, saying that he “probably did, probably didn’t” [78] . The offender’s evidence in these respects was completely lacking in credibility. I am satisfied that he did read the article, and that he was inspired and motivated by it to act as he did a little over one month later. The contents of the article were wholly consistent with the extreme views he held at the time, to say nothing of being consistent with his conduct on 12 October 2016.

9. [49]

   The offender was then taken to another article in the magazine entitled “The Kaffir’s Blood is halal for you so shed it” [79] . That article, which was accompanied by a photograph of a man selling flowers, included the following [80] :

10. [50]

    When cross-examined about this article [81] the offender denied that its contents reflected his views at the time [82] . He asserted that he was sympathetic to, but not supportive of, the views which were expressed in it [83] . I do not accept that the offender was merely sympathetic to such views, particularly in light of his own evidence that held extreme views at this time [84] .

11. [51]

    Issue 2 of Rumiyah [85] was published on 4 October 2016 [86] . It was downloaded by the offender, and later deleted [87] . The offender said [88] that he became aware of it by searching a website called “Jihadology” which posted information as to the availability of material published by terrorist organisations [89] . He agreed that this issue of Rumiyah expressed extreme views, and said that he was “extreme himself” [90] . The cover of this issue depicted a heavily bloodstained knife. Its contents included an article entitled “Just Terror Tactics” [91] , the introduction to which included the following:

12. [52]

    Under the sub-heading “Knife Attacks” [92] , the article then stated:

13. [53]

    In the context of the offending, this article is significant for a number of reasons.

14. [54]

    Firstly, the evidence establishes that the issue of Rumiyah in which this article appeared was published on 4 October 2016. Although the date on which it was downloaded by the offender is not entirely clear, it must have been between 4 October 2016 and 12 October 2016, and thus close in time to his arrest.

15. [55]

    Secondly, and fundamentally, the article urges the perpetration of extreme violence on “disbelievers”. It expressly urges followers to attack the “enemies of Allah” with knives, recommending it as a “simple” form of violence. Such exhortations are completely consistent with both the offender’s extreme views, and his conduct.

16. [56]

    Thirdly, the offender sourced this publication through another website. He did so deliberately, knowing that such website made material of this nature available.

17. [57]

    Fourthly, the article recommended “fixed blade” knives as the most useful for carrying out an attack. On 6 October 2016, two days after the publication of this article, the offender attended the Bankstown Gun Shop and purchased two fixed blade knives [93] . Six days later, he purchased two more.

18. [58]

    Fifthly, the article advised that particular attention be paid to the sharpness of any knife to be used in an attack. All four knives purchased by the offender were obviously sharp because they were new. Moreover, on 12 October the offender purchased a knife sharpener. He admitted in his evidence that he did this so that when a knife became blunt he could sharpen it” [94] .

19. [59]

    Sixthly, the article recommended that any knife to be used in an attack be of a size which would lend itself to easy concealment. Concealing the knives in a backpack prior to going to the Musallah was precisely what the offender did.

20. [60]

    Seventhly, knives with serrated or partially serrated blades were recommended as being the most appropriate for use as an attack weapon. The blades of the two knives purchased by the offender on 12 October and which were found in his possession at the time of his arrest, were partially serrated.

21. [61]

    Eighthly, the article identified, as an advantage in using knives, their immediate availability and ease of acquisition. The offender acquired four knives within the space of six days.

22. [62]

    Finally, the article advocated that following an attack, a note should be pinned to a victim’s body pledging allegiance to the Khalifah. I have already referred to the fact [95] that one of the items found at the time of the offender’s arrest was a note which included a written pledge of “allegiance to the Caliph”, and which the offender had admitted placing in the co-offender’s backpack.

23. [63]

    The offender sought to pass off the obvious and unequivocal correlation between the contents of the article and his conduct as nothing more than a coincidence [96] . He expressly denied that he had engaged in doing acts in preparation for a terrorist act, and maintained that the entirety of his actions were motivated by an interest in hunting and camping [97] .

24. [64]

    The offender was then asked [98] :

25. [65]

    Having maintained that the knives that he had purchased were for camping or hunting [99] , the offender was asked [100] :

26. [66]

    Under further cross-examination the offender agreed that he “wasn’t 100%” on the choice of a camping or hunting location [101] , and that although he had undertaken searches about Melbourne in that context, he was not “100% sure” that there would be wild pigs in that area [102] . Ultimately, the offender conceded that his interest was “what was going on overseas at the time” which was “ten times more important than hunting”. He said that hunting was just a “side thing” and a “long term plan”, and that it was one which he “probably wouldn’t even have been bothered doing” [103] .

27. [67]

    There, in my view, lies the reality. The offender’s primary interest was not in camping or hunting at all. His denial that he was engaged in preparing for a terrorist act simply flies in the face of overwhelming evidence to the contrary. His various assertions that his actions stemmed from an interest in hunting and camping were as nonsensical as they were fanciful, and amounted to nothing more than a ruse adopted by the offender in an attempt to cloak his criminal activity with an air of legitimacy. Consistent with the verdict of the jury, I am satisfied that in acting as he did on 12 October 2016, and specifically in purchasing the knives, the offender was preparing for a terrorist act.

28. [68]

    It is also of some significance that the offender was arrested in an area near the Bankstown Court House and the Bankstown Police Station. That significance stems from the offender’s evidence that at the time of his offending he regarded the “whole Government in general to be evil” [104] . He agreed that the proximity of the Court House and Police Station was such that if he left the Musallah he knew that there would be people in the immediate vicinity whom he regarded as evil. Indeed, he went so far as to say that he regarded anyone connected to the Government to be evil whether they were “in a subway or in the Bankstown Court” [105] . Notwithstanding these concessions, the offender denied that he would have attacked anybody, stating that to do so would have been against his religion [106] . Once again, that assertion is fundamentally at odds with the whole of the evidence, and I do not accept it. I am satisfied that at the time of his arrest, the offender was ready, willing and able to carry out a terrorist act. Not only was he in possession of the necessary weapons, he also had items which could be used to hide his face, as well as a written pledge which, according to the article in Rumiyah, was to be pinned to the victim of an attack. I am satisfied that at the time of the offender’s arrest, the perpetration of a terrorist act involving the infliction of harm with the use of a knife was imminent.

Submissions of the Crown

1. [69]

   The Crown’s initial submission was that the offending fell at the higher end of the scale of objective seriousness. However, in oral submissions the Crown revised that position and submitted that the offending fell in the “mid to high” range. The Crown submitted that the evidence established that the offender’s radical views were deeply held, and that it was his extremist ideology which had principally motivated his offending.

2. [70]

   The Crown acknowledged the evidence that for some period in the early part of 2016 the offender had expressed more moderate views. However, the Crown submitted that the offender’s post on his Facebook account on 17 June 2016 [107] amounted to him explaining, and indeed apologising for, that more moderate stance, and effectively announcing that he had reverted to his previously held extremist beliefs. The Crown submitted that this post was particularly telling not only because of its content, but because of the fact that it had occurred prior to the offending.

3. [71]

   The Crown further submitted that the depth and extent of the offender’s radical and extremist beliefs were apparent, not only from his conduct leading up to his arrest, but also from the notes found in his cell. It was submitted that I would be satisfied that the terrorist act for which the offender was preparing was intended to inspire fear in the community, and that the carrying out of such act with the use of the knives was imminent. The Crown submitted that the offender played the “lead role” in the preparation and planning, that his offending was not spontaneous, and that contrary to what had been submitted on his behalf, there was no evidence that he committed the offence as a consequence of family pressure.

4. [72]

   The Crown further submitted that the seriousness of the offending was aggravated by the fact that the offender took steps to conceal his involvement in it. These steps, in the Crown’s submission, manifested themselves in the offender (inter alia) concealing the knives and leaving behind the Casio watch in the bathroom at the Musallah. It was submitted that the fact that the offender had taken these steps was indicative of a consciousness on his part that he was engaged in serious criminal activity.

Submissions of the offender

1. [73]

   Senior counsel for the offender accepted that the offending was serious, but submitted that it fell towards the lower end of the scale. He also accepted, as I understood it, that much of what the offender had said in evidence was at odds with the verdict of the jury. However, it was senior counsel’s submission that this was of limited significance.

2. [74]

   Senior counsel further submitted that it was necessary to bear in mind that offending of this nature could be committed in a variety of ways. He submitted that the offending in the present case had been committed in a “naïve and simplistic setting”, and that the risk to the safety of the community was at the lower end of the scale. Senior counsel for the offender also pointed to the fact that although the offender had been verbally abusive towards police when arrested, he had not exhibited any violence towards them.

3. [75]

   In support of the submission that the offending fell towards the lower end of the scale, senior counsel for the offender specifically pointed to what he described as “the immaturity of a 16 year old boy who had been caught up in seductive propaganda in the context of traumatically and actually distressing world events”. He submitted that the offender had been subjected to family and peer group pressures, in circumstances where he was a person of “demonstrated naivety”.

4. [76]

   Senior counsel further submitted that there was no evidence which suggested that there was a plan for the use of the knives, and pointed to the evidence which established what he described as the waning of the offender’s radicalisation prior to his arrest.

Consideration

1. [77]

   For the reasons I have already stated, I am satisfied that at the time of his offending, the offender was an unequivocally committed terrorist. He was corrupted, and motivated to act as he did, by an extreme and perverted ideology which advocated the commission of serious acts of violence upon innocent and law abiding members of the community. It has been observed on many occasions that such an ideology has no place in any civilised society. It is fundamentally contrary to the peaceful, ordered and democratic way of life that the citizens of this country have rightfully grown to protect and cherish. The level of the offender’s extremism, and the unequivocal commitment and dedication with which he pursued it, is clear from all of the evidence to which I have referred. His actions on 12 October 2016 were directed to putting into practice, with meticulous precision and attention to detail, the exhortations to go out and inflict terror and harm upon members of the community who were likely to be doing nothing more than going about their daily business. Armed with weapons, and inspired and motivated by the depraved advocacy of Islamic State, the offender engaged in acts which had a real capacity to cause those members of the community to fear for their lives.

2. [78]

   The nature of this kind of offending is such that it will always incorporate some degree of planning. In the present case, that planning obviously included the purchase of the knives which were to be used as weapons. However, it extended substantially beyond that. It included, fundamentally, sourcing extremist propaganda which provided instructions as to how a terrorist attack could be carried out using such weapons. It also included concealing those weapons, ensuring that there were items of clothing available which could be used as a disguise, and taking steps to avoid detection. In these circumstances I am unable to accept the submission advanced on behalf of the offender that there was no evidence which suggested a plan for the actual use of the knives. On the contrary, the evidence, when viewed as a whole, establishes a clear plan to use the knives to inflict death or serious injury.

3. [79]

   For the reasons I have stated, I am satisfied that an attack was imminent. The offender regarded the Government as “evil”. The nearby presence of the Police Station and Court House, both of which represented arms of Government, meant that the offender would inevitably have found many persons within the immediate vicinity who he regarded as appropriate targets.

4. [80]

   I accept that his offending was simplistic, in the sense that it was generally unsophisticated. I also accept that the potential for harm arising from the offender’s actions may have been less than that posed in other cases. However, none of that means that the offending was not serious. On the contrary, it had the real capacity to inflict significant and immediate harm.

5. [81]

   It may well be that for a period of time leading up to mid-2016 the offender had adopted a more moderate outlook, and had expressed more moderate views. Whilst this may have some bearing upon an assessment of his prospects of rehabilitation [108] , it is largely irrelevant to a determination of the objective seriousness of his offending. The simple and unassailable fact is that by October 2016 the offender had well and truly resumed his extremist stance. For the reasons I have already expressed, I am satisfied that the decision to do so was his own.

6. [82]

   In all of these circumstances, I place the offending at or about the mid-range of objective seriousness. General deterrence remains a particularly important consideration in the determination of an appropriate sentence [109] .

THE OFFENDER’S SUBJECTIVE CASE

1. [83]

   Section 16A(2) of the Crimes Act 1914 (Cth) sets out a number of factors which are relevant to the subjective case of an offender. To the extent that those factors are applicable in the present case, I turn to consider them individually.

Section 16A(2)(f) – Contrition

1. [84]

   There is no evidence before me to suggest in any way that the offender is contrite. Indeed, the evidence is to the contrary. Consistent with the offender’s protestations of innocence in the course of giving evidence [110] , Dr Nielssen recorded the following in his report of 24 October 2018 [111] :

2. [85]

   Further, in the report of Kuranda Seyit, the following was recorded [112] :

3. [86]

   The fact that the offender displays no contrition for the offending of which he has been found guilty is not an aggravating factor. It simply means that he does not gain the mitigatory benefit of a finding that he is contrite.

Section s 16A(2)(j) – Personal deterrence

1. [87]

   Bearing in mind the conclusions I have reached as to the offender’s ideology, and quite apart from considerations of general deterrence, there is in my view a strong need for any sentence to reflect considerations of personal deterrence.

Section 16A(2)(m) – Character, antecedents, age, means, and physical condition

1. [88]

   The offender has no criminal history and is thus a person of otherwise good character. He is presently 18 years of age and was 16 years and 5 months at the time of the offending.

2. [89]

   The affidavit of the offender’s father sets out some of the offender’s personal history [113] . The offender was 4 years of age when his parents separated. It is evident that the separation was acrimonious. The offender lived with his mother following the separation, however she later directed him to leave the family home, saying that she was unable to control him any longer. The offender then resided with his father for a period of six months, although there was tension between the offender and his father’s new partner.

3. [90]

   In his report of 24 October 2018 [114] Dr Nielssen reported that the offender had informed him that he had “continued to feel depressed about his circumstances”. However, Dr Nielssen expressed the view [115] that the offender did not meet the accepted criteria for a diagnosis of any psychiatric, developmental or mood disorder, acquired brain injury, or actual or emerging psychotic illness.

4. [91]

   The offender’s age is of particular significance. In Khalid [116] I summarised the principles applicable to the sentencing of young offenders. I did so by reference to the judgment of McClellan CJ at CL in KT v R [117] where his Honour had made the following observations:

5. [92]

   I went on to make the following observations [118] :

6. [93]

   In the course of his evidence, the offender variously described himself at the time of the offending as a “young kid” [123] , a “dumb kid” [124] , a “dumb immature kid” [125] , “a little kid” [126] and “an idiot … (who) didn’t understand the whole thing [127] . I am mindful of the fact that the offender is now two years older than he was at the time he was arrested. Accordingly, I must not, and I do not, view his presentation in the witness box as reflecting his level of maturity at the time of his offending. However, whilst I acknowledge the offender’s age at the time of his offending, I am unable to accept the submission of senior counsel that he was a naïve 16 year old whose immaturity was a contributing factor to his offending. There is nothing in either of the reports of Dr Nielssen which might support that conclusion. Moreover, an examination of what the offender actually did tends totally against it. The offender deliberately sourced and posted extremist material which advocated violence. He sourced publications which not only advocated violence but gave instructions as to how it could be carried out. He followed those instructions to the letter. He purchased weapons which he then secreted. He carried camouflage gear. He took steps to ensure that he could not be traced. He was arrested in an area where he expected there would be appropriate targets. Conduct of that nature is, in my view, the antithesis of naivety. It reflects a considerable degree of forethought, intelligence and guile. It also reflects a deep and unstinting motivation to act upon, and put into specific effect, the irrational, immoral and heinous advice propounded in extremist propaganda issued by Islamic State. In my view, the offender’s conduct belies any suggestion of naivety, immaturity or lack of intelligence. None of those characteristics played any part in his offending.

7. [94]

   In DPP (Cth) v MHK (A Pseudonym) [128] the Victorian Court of Appeal (Warren CJ, Weinberg and Kaye JJA) dealt with a case involving a 17 year old offender who had pleaded guilty to doing acts in preparation for a terrorist act. The Court said [129] :

8. [95]

   Such observations are apposite in the present case. None of this is to say that the offender’s age is to be disregarded. On the contrary, it is a relevant factor which must be taken into account and I have done so. However, consistent with the authorities to which I have referred, general deterrence and denunciation are to be given primacy.

Section 16A(2)(n) – rehabilitation

1. [96]

   The report of Kuranda Seyit recorded that a mentoring program (in which the mentoring is administered in conversations over the telephone rather than face to face [130] ) commenced with the offender on 5 April 2018. The report stated [131] :

2. [97]

   The report then stated [132] :

3. [98]

   It was recommended that the telephone mentoring program continue on the basis that it would provide the offender with support “to move towards a positive trajectory and enable him to achieve his goals”.

4. [99]

   In the most recent of his reports Dr Nielssen said [133] :

5. [100]

   Such observations were consistent with those in Dr Nielssen’s earlier report [134] , namely that the offender “does not have the two main predictors of further offending, which are a pattern of antisocial conduct and a substance abuse disorder”. The Crown objected to those parts of Dr Nielssen’s reports on the basis that the opinions expressed fell outside his area of expertise. However, such opinions were obviously expressed from the perspective of the offender’s mental state, an area in which Dr Nielssen is obviously well qualified. At the same time, the fact that such opinions were expressed from that perspective means that the weight which can be attributed to them is limited accordingly.

6. [101]

   The offender’s father also touched on this issue in his affidavit [135] :

7. [102]

   After being taken into custody in 2016 the offender was enrolled in a Year 11 Life Skills program [136] . He was then enrolled in Year 12 in the early part of this year with a view to working towards the completion of his High School Certificate. However, his enrolment was withdrawn in the middle of this year due to what were described as “unsatisfactory completion of assessments/workbooks”. The withdrawal of the offender’s enrolment co-incided with the time of his trial. One can well understand in those circumstances why his focus may not have been on his school work. He has expressed a desire to resume in 2019 [137] .

8. [103]

   According to his education reports, the offender demonstrates a level of work that exceeds expectations. He is said to be highly creative. He is described as an academically capable student who demonstrates competence in literacy and mathematics, and who is continually improving and growing in his ability to self-reflect and as a result, broaden his way of thinking. He is regarded as a mature and respectful learner who has built up a good rapport with other students and teaching staff [138] . The offender has also satisfactorily engaged in a cognitive behaviour program with his custodial case worker and has satisfactorily completed all modules to date [139] . There is also evidence that the offender has progressed to the highest level in an Incentive Reward Scheme which operates at the custodial facility at which he is being held [140] . As against those matters, there have been 24 separate reported instances of misbehaviour involving the offender in custody, although the last of them appears to have been in the latter part of 2017 [141] .

9. [104]

   In his evidence before me, the offender was asked about his current attitudes and views [142] :

10. [105]

    When asked about the possibility of returning to the adoption of an extreme ideology in the future, the offender said [143] :

11. [106]

    Although the offender’s prospects of rehabilitation remain a relevant consideration on sentence, they assume less significance than might otherwise be the case because of the nature of his offending [144] . Moreover, the successful rehabilitation of an offender found guilty of an offence such as this is necessarily dependent, at least in part, upon that offender renouncing previously held extremist views [145] . It follows that if a sentencing Court is satisfied that an offender has renounced those views, the prospects of rehabilitation will be greater and will constitute a matter for which the Court must make an appropriate allowance [146] . Conversely, if the Court is not so satisfied, an offender’s prospects of rehabilitation will be less optimistic. The offender bears the onus of establishing, on the balance of probabilities, that a previously held extremist ideology has been renounced or abandoned [147] .

12. [107]

    For the reasons I have stated, the offender was, in a number of respects, an unsatisfactory witness. There are numerous aspects of his evidence that I simply do not accept. Although it is obviously open to me accept part of what any witness says, and reject part, my rejection of material aspects of the offender’s evidence obviously gives rise to an issue as to whether other parts of his evidence can be accepted as truthful and reliable.

13. [108]

    If the offender is to be believed, he has abandoned his extremist views and will not return to them because he is now more mature [148] . Quite apart from the fact that I have found that immaturity played no part in his offending, there is a demonstrated history of the offender having previously moderated his views, only to then revert to an extremist stance. That history is a matter of obvious concern when it comes to assessing his prospects of rehabilitation. For all of these reasons, the offender’s evidence that he will not revert to his previously held extremist ideology must be approached with considerable caution. Putting it at its highest, the entirety of the evidence going to the issue of rehabilitation may suggest that tentative steps have been taken by the offender to move away from his previously held extremist ideology. I can put the matter no higher than that, and I express such conclusion with considerable caution [149] .

CONCLUSION

1. [109]

   I am required to impose a sentence that is of a severity appropriate in all of the circumstances [150] and I must ensure that adequate punishment is imposed [151] .

2. [110]

   The offender has been in custody since his arrest on 12 October 2016 and the parties agree that any sentence should be backdated to that time. Senior counsel for the offender sought an order pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW) that any sentence be served by the offender as a juvenile up to his attaining the age of 21 years. The Crown did not oppose the making of that order.

3. [111]

   I therefore make the following orders:

   1. (1)

      The offender is convicted of the offence of doing acts in preparation for, or planning, a terrorist act or acts.

   2. (2)

      The offender is sentenced to imprisonment for 16 years commencing on 12 October 2016 and expiring on 11 October 2032.

   3. (3)

      I specify a non-parole period of 12 years imprisonment commencing on 12 October 2016 and expiring on 11 October 2028.

   4. (4)

      The offender will be eligible for release on parole on 11 October 2028.

   5. (5)

      I am satisfied that there are special circumstances within the meaning of s 19(4)(c) of the Children (Criminal Proceedings) Act 1987 (NSW) and I order, pursuant to s. 19(1) of that Act, that the sentence that I have imposed upon the offender be served by him as a juvenile offender up to his attaining the age of 21 years on 6 May 2021.

   6. (6)

      Pursuant to s 105C of the Criminal Code 1995 (Cth) I warn the offender that an application may be made for a continuing detention order requiring him to be detained after the completion of his sentence.