R v Khan (No 11)

On 25 March 2019, Ihsas Khan (‘the offender’) pleaded not guilty on the grounds of mental illness to a charge that on 10 September 2016, at Minto in the State of New South Wales, he engaged in a terrorist act which involved stabbing Wayne Greenhalgh multiple times with a knife, with the intention of killing him. Engaging in a terrorist act is an offence contrary to s 101.1(1) of the Criminal Code 1995 (Cth) (‘the Code’). It carries a maximum penalty of life imprisonment, although I should make it clear that the Crown did not suggest that a life sentence should be imposed in the present case. The offender is to be sentenced having regard to the provisions of Part IB of the Crimes Act 1914 (Cth) (‘the Act’).

The fact that the offender stabbed Mr Greenhalgh was not an issue at his trial. It was the offender’s case that at the time of doing so he was suffering from a schizophrenic illness, as a consequence of which he did not know that his conduct was wrong. [1] In support of his defence, the offender called evidence from two psychiatrists, Dr Jonathon Adams and Dr Robert Reznik. The offender had provided a history to both Dr Adams and Dr Reznik which included an assertion that he had been told by an Islamic spirit, known as a Jinn, to stab Mr Greenhalgh. On the basis of (inter alia) that history, both Dr Adams and Dr Reznik expressed the opinion that the offender was suffering from schizophrenia at the time. Professor David Greenberg, who was called by the Crown, expressed the opinion that the offender was not schizophrenic at the time of stabbing Mr Greenhalgh, but was suffering from Obsessive Compulsive Disorder (‘OCD’) which did not impair his capacity to understand the wrongfulness of his actions.

The offender was found guilty on 2 May 2019. It is evident from that verdict that the jury rejected the proposition that he was suffering from schizophrenia at the time of stabbing Mr Greenhalgh.

I heard evidence and submissions on sentence on 23 May 2019.

The Crown tendered the following on sentence: [2]

The offender’s affidavit of 20 May 2019 was read in his case on sentence, [3] in addition to which he gave oral evidence.

At the outset, it is appropriate to set out the general principles which are applicable to sentencing for offences of this nature. I summarised those principles in in R v Khalid and ors. [4] as follows: [5]

It follows from those principles that substantial sentences are warranted for offending of this nature. That is so, not only because of the various considerations to which I have already referred, but also because offending of this nature 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. [12] In Barot [13] the Court of Appeal of the United Kingdom summarised the approach to sentencing for offending of this nature in the following terms:

Mr Greenhalgh took the opportunity of reading his victim impact statement to the Court during the sentence proceedings. I observed him carefully as he did so. It was evident to me that he remains acutely traumatised by the offending. Quite apart from the inherently violent nature of the offender’s attack which caused him to fear for his life, Mr Greenhalgh suffered severe injuries. They included lacerations and stab wounds to the upper right arm, the left middle finger, the left wrist, the left hand side of his face extending from the cheek to the throat, and the left hand side of his stomach. [14] He continues to suffer a number of ongoing disabilities as a consequence of those injuries. He has lost strength in his right arm due to nerve damage. He has lost flexibility in some of his fingers. He suffers from insomnia as a result of ongoing pain. He has been diagnosed with Post-Traumatic Stress Disorder. He has been unable to continue in his employment, which has resulted in a significant financial loss.

Whilst no objection was taken to the victim impact statement of Mr Greenhalgh, counsel for the offender objected to those of Mr and Mrs Cutforth, and the members of the Ah Chong family, on the basis that those persons were witnesses to, as opposed to victims of, the offending. It was submitted that s 16AAA of the Act, which makes provision for victim impact statements, could not be construed so broadly as to permit persons who had witnessed offending to be regarded as victims. In advancing these submissions, counsel for the offender referred me to the decision of the Court of Criminal Appeal in R v Nahlous. [15]

The Crown submitted that s 16AAA of the Act should be interpreted widely. In this regard, the Crown placed particular emphasis on the definition of the term ‘harm’ in s 16 of the Act, which encompasses physical, psychological and emotional suffering. It was submitted that this definition informed the proper interpretation of the term ‘victim’ in s 16AAA, and that Mr and Mrs Cutforth and the members of the Ah Chong family were properly regarded as victims who had suffered relevant harm, in the nature of psychological and emotional suffering.

Section 16AAA of the Act is in the following terms:

The term ‘harm’ is defined in s 16 of the Act as including:

The term ‘victim’ is not defined in the Act. The Oxford English Dictionary defines that term as meaning:

In terms of any victim of offending, s 16A(2) of the Act provides that I must take into account on sentence:

At the offender’s trial, the evidence which would otherwise have been given by each of Mr and Mrs Cutforth, and Mr and Mrs Ah Chong, was dealt with by the tender of a statement of agreed facts. [19] Those agreed facts recorded [20] (inter alia) that Mr Cutforth saw the offender thrust a hunting knife, 30cms in length, towards Mr Greenhalgh, who attempted to defend himself by walking backwards and swiping the knife away. Mrs Cutforth recalled her husband saying (in reference to the offender) ‘he’s got a knife’. She had an unobstructed view of what was taking place from about 20m away. She saw the offender holding a very large knife, about 30cms in length, threatening Mr Greenhalgh. She saw the offender point the knife towards Mr Greenhalgh and move it quickly towards his chest area.

The agreed facts also recorded [21] that Mrs Ah Chong saw Mr Greenhalgh walking near her driveway. He had blood all over him and was calling out ‘someone help me’. Mrs Ah Chong saw the offender stabbing Mr Greenhalgh with a knife, and saw Mr Greenhalgh holding his hand up in an attempt to defend himself from being attacked. Mrs Ah Chong heard the offender yelling ‘Allah, Allah…they killed our people, they should be killed too’.

The agreed facts further recorded [22] that Mr Ah Chong saw Mr Greenhalgh with blood all over him asking for help. He then saw the offender chasing Mr Greenhalgh with a knife. Mr Ah Chong tried to help Mr Greenhalgh by getting between him and the offender, at which point the offender thrust the knife towards Mr Ah Chong’s chest in an attempt to stab him. Mr Ah Chong defended himself by stepping back and using his jacket to deflect the knife. Mr Ah Chong said to the offender ‘what are you doing, you’re a crazy, what’s wrong with you?’. The offender said “these people tried to kill my brothers and sisters in Iraq”. Mr and Mrs Ah Chong then saw Mr Greenhalgh run into a nearby hairdressing salon. The offender ran after Mr Greenhalgh and tried to force open the sliding glass door to the salon but he was not able to do so. Mr Ah Chong then picked up a fence paling and told the offender to put the knife down. The offender refused, following which Mr Ah Chong hit the offender in the face with the fence paling before picking up a rock up from the ground. He said to the offender ‘put the knife down or I will throw the rock’. The offender bowed his head and said ‘kill me, I’m here to die’. Mr Ah Chong then asked Mrs Ah Chong to call the police.

Derek Ah Chong gave evidence at the trial that he was inside his home when he was alerted to the sound of his mother screaming. [23] He ran outside and saw Mr Greenhalgh ‘running around with blood coming from his neck and hand’ [24] calling out ‘somebody help me’. [25] Derek went to the garage of his home and grabbed a broomstick before going to the front of his house where he heard his father tell the offender to drop the knife. [26] Derek saw the offender touching blood on the ground, referring to it as a ‘beautiful sight’, [27] and shouting ‘Allahu Akbar’. [28] He saw the offender stabbing at the glass door of the hairdressing salon [29] and heard him saying ‘they are killing my brothers and sisters in Iraq’. [30] Derek then saw his father hit the offender with a fence paling [31] after which he saw his father pick up a rock. [32]

The decision in Nahlous to which I was referred in the course of submissions arose from an appeal by the Crown against a sentence imposed for an offence of using a carriage service with the intention of grooming a person for sexual activity. [33] One of the grounds of appeal was that the sentencing judge had failed to have regard to a victim impact statement provided by the victim’s mother. Adamson J (with whom Hoeben CJ at CL and Davies J agreed) concluded that while the term ‘victim’ plainly included the person who was the subject of the grooming, it was another question whether the term encompassed (in that case) the mother of that person. [34] Having noted [35] that there were Commonwealth offences where the categories of victims could be large, her Honour concluded: [36]

For a number of reasons, the decision in Nahlous is of limited assistance in resolving the present issue. To begin with, the decision did not involve a consideration of s 16AAA of the Act because the section had not, at that point, been enacted. Moreover, the position of the person who made the statement in that case (vis a vis the primary victim) was quite different to the respective positions of Mr and Mrs Cutforth, and the members of the Ah Chong family.

As the Crown pointed out, the definition of the term ‘harm’ in s 16 of the Act contemplates that a victim may be a person who endures psychological or emotional suffering. That is precisely the situation in the present case. Having read their statements, it is clear that Mr and Mrs Cutforth and the members of the Ah Chong family are persons who have been psychologically and emotionally harmed as a result of the offending. The harm they have suffered falls squarely within the definition of that term in s 16 of the Act. Moreover, each of them falls within the definition of the term ‘victim’ that I have previously set out. [37]

For these reasons, I am satisfied that Mr and Mrs Cutforth and the members of the Ah Chong family are properly regarded as ‘victims’ for the purposes of s 16AAA of the Act. The Crown’s tender of their statements should be accepted.

As I have outlined, Mr and Mrs Cutforth witnessed aspects of the offending. Unsurprisingly, both have suffered from anxiety as a consequence of what they observed. They continue to become emotional when recalling the incident. Mr and Mrs Ah Chong and their son also witnessed aspects of the offending. Mr Ah Chong actively intervened to assist Mr Greenhalgh. Each of them has expressed, albeit in somewhat general terms, feeling a threat to their safety as a consequence of the offending.

Whilst the effect of the offending has been most profound on Mr Greenhalgh, it has had an impact on all of those who have provided victim impact statements. I extend my best wishes to Mr Greenhalgh, to Mr and Mrs Cutforth, and to the members of the Ah Chong family. My hope is that the conclusion of these proceedings today will assist each of them to gain some closure, and allow them to move ahead in a positive frame of mind. In determining the appropriate sentence, I have taken into account those specific considerations set out in the Act relating to victims. [38]

On 9 September 2016 the offender conducted internet searches on his laptop computer, a number of which centred upon extremist ideology and acts of violence. [40] They included:

The offender told a number of medical practitioners and associated health professionals that he viewed this material in order to inspire and motivate him to commit the offence. Clinical notes of an examination conducted 2 days after the offending [41] record that the offender told a mental health nurse that he had been ‘on the internet a lot’ and ‘was getting the motivation to kill’. In a consultation with Dr Reznik on 28 February 2017 [42] the offender said that he ‘saw the light’ after watching the footage entitled ‘Tribute to the Lion of Jihad’, and that a quotation from the Qu’ran which appeared at the conclusion of that footage had ‘convinced him’. Dr Adams gave evidence that the offender had told him that in the days leading up to the attack on Mr Greenhalgh he had been ‘spiritually preparing himself’, [43] that he had looked to external sources for spiritual motivation and preparation, [44] and that part of his spiritual preparation involved carrying out internet searches of the kind to which I have referred. [45] The offender also told Dr Adams that he was ‘trying to get angry by watching videos of air strikes’. [46]

Dr Rodger Shanahan, an expert in Islamic Studies and a Research Fellow at the Lowy Institute, gave evidence at the offender’s trial [47] of footage promulgated by Islamic State in early 2015 depicting a Jordanian pilot being doused with petrol, set alight and burned to death. [48] The offender gave evidence in the sentence proceedings that the footage he watched in the period leading up to his offending included what he described as ‘the burning of the pilot’. [49] That was obviously the footage to which Dr Shanahan referred.

I am satisfied that the viewing of all of this material formed part of the offender’s planning and preparation for his attack on Mr Greenhalgh. I have set out in further detail below [50] a history provided by the offender to Dr Spencer on 19 September 2016, 9 days after the offending. Bearing in mind that history, I am also satisfied that it was the offender’s original intention to carry out the attack on Mr Greenhalgh to coincide with the anniversary of the attack on the World Trade Centre in New York in 2011. However, as the offender himself acknowledged, there was no guarantee that he would have seen Mr Greenhalgh that day, hence he decided to carry out his planned attack when the opportunity presented itself on 10 September 2016.

On the morning of 10 September 2016 Mr Greenhalgh went for a walk with his wife near his home in Minto. He was in the habit of doing so, and he generally took the same route. [51] As he passed the offender’s premises on that occasion, the offender walked out with what Mr Greenhalgh described as a “little book”. [52] The offender stood approximately 1 metre away from Mr Greenhalgh, opened and closed the book, and returned inside. [53] The offender could obviously have attacked Mr Greenhalgh at that point but chose not to do so. I am satisfied that this was because he was waiting for Mr Greenhalgh to be alone. [54]

At about 4.00pm on that day, Mr Greenhalgh left his home to walk to the local shopping mall. [55] As he approached the offender’s house, he saw the offender on the verandah. [56] The offender went inside and retrieved a backpack [57] which contained a hunting knife.

There was no issue at the trial that the offender had purchased that knife in February 2016. [58] When asked in the course of cross-examination in the sentence proceedings [59] whether, when he purchased it, it was his intention to use it in a terrorist attack, the offender responded:

That answer prompted the following further cross-examination by the Crown, to which no objection was taken: [60]

It is necessary to emphasise that the offender has not been charged with any offence arising from any plan he may have had to kill Jewish students at Sydney University. He is not to be punished for conduct which is not the subject of the offence of which he has been found guilty by the jury. [61] That said, this evidence remains relevant because it is indicative of the depth of the extremist ideology to which the offender subscribed in the period leading up to his attack on Mr Greenhalgh. [62]

Having retrieved the backpack containing the knife, the offender returned outside. [63] He stood up and rushed towards Mr Greenhalgh. [64] With the knife in his hand [65] he commenced to attack Mr Greenhalgh, repeatedly stabbing him in the head, neck, arms, hands, torso and stomach. [66]

In fear of his life, Mr Greenhalgh fled from the offender. [67] The offender pursued him. [68] Mr Greenhalgh managed to take refuge in a hairdressing salon which was operating from a garage attached to the house of a nearby resident. [69] The CCTV footage [70] of Mr Greenhalgh fleeing from the offender before entering the safe confines of the hairdressing salon was graphic. It demonstrated, amongst other things, that he was losing a significant amount of blood as a consequence of the multiple stab wounds which had been inflicted upon him by the offender, particularly those to his right arm.

After Mr Greenhalgh entered the hairdressing salon, the door was locked behind him. The offender then attempted to gain entry into the salon through the locked door, but he was unable to do so. He then touched some of the blood left by Mr Greenhalgh on the driveway of the premises and said: [71]

When later interviewed by police, the offender said: [72]

The offender was seen to point to the sky whilst standing outside the door of the hairdressing salon and say: [73]

Witnesses to the incident also heard the offender variously shouting: [74]

When attacking Mr Greenhalgh, the offender was also heard to shout ‘Allahu Akbar’, [75] an Arabic phrase meaning ‘God is great’.

The offender later told police [76] that when he stabbed Mr Greenhalgh he intended to kill him. Consistent with that, a history recorded by Dr Spencer in the clinical notes of her examination of the offender on 19 September 2016 (nine days after the attack) record the following: [77]

When asked by police what stopped him from killing Mr Greenhalgh, the offender said: [78]

As I have already outlined, [79] Mr Greenhalgh was assisted in fleeing to safety by Mr Ah Chong. But for the courage and fearlessness of Mr Ah Chong, there is a distinct likelihood that the offender would have achieved his stated aim of killing Mr Greenhalgh. Mr Ah Chong placed the interests and welfare of Mr Greenhalgh before his own. He acted completely selflessly, and should be praised and admired for the extraordinary bravery he displayed in defending a fellow member of the community.

When the police arrived at the scene, the offender ran towards their vehicle and stabbed at the closed passenger side window with sufficient force to fracture the blade of the knife. [80] The police then drove the vehicle into a side street before getting out and demanding that the offender discard the knife. He refused to do so on several occasions, as a consequence of which police were forced to repeatedly apply a Taser to him in order to subdue and arrest him, and remove the knife from his possession. [81] As he was being subdued, the offender attempted to cut the Taser wire with the knife. [82] In the course of these events, the offender continued to make statements which included: [83]

Following his arrest, the offender participated in a recorded interview with police. [84] A number of statements he made in that interview inform both the circumstances of his offending generally, and the ideology by which he was motivated in particular.

When asked if he could tell police why he was being interviewed, the offender responded: [85]

When asked why he tried to slaughter a guy, the offender said: [86]

When asked how he thought that attacking Mr Greenhalgh would prevent people being killed overseas, the offender responded: [87]

The offender told police that ‘the western world was the same’ and that ‘America’s crimes (were) on Australia as well’. [88] He confirmed [89] that he did not know Mr Greenhalgh personally, but said:

In relation to his targeting of Mr Greenhalgh, the offender told police: [90]

The clinical notes of a consultation with Dr Spencer on 19 September 2016 recorded the offender providing a history which included the following: [91]

A photograph of the t-shirt which the offender had seen Mr Greenhalgh wearing, and which caused the offender to target him, was part of the evidence in the trial. [92] It bore a stars and stripes logo on the front, accompanied by the words:

Those words were printed over a background of a well-known image depicting military personnel raising the flag of the United States of America following victory in the battle of Iwo Jima during World War II.

The offender was asked by police about his extremist ideology as it applied to Australia: [93]

The offender was then asked: [94]

Farhad Jabar, described by the offender as the ‘inspiration’, the ‘role model’, and the ‘lion’, was a 15 year old youth who, in 2015, shot and killed Curtis Cheng, a police accountant, in Parramatta before being killed himself. [95] In terms of the offender’s description of Farhad Jabar as a ‘green bird, hanging off the throne of God’, Dr Shanahan explained [96] that in Islamic law, the soul of somebody who becomes a martyr as a consequence of undertaking jihad, or a violent struggle, is believed to inhabit the soul of a green bird in heaven.

The offender told police that he considered himself to be discharging his obligation of jihad by stabbing Mr Greenhalgh. [97] He described himself as ‘a proper Muslim’. He said that ‘there were no real Muslims in Sydney’ and that ‘most of them are hypocrites’. [98] He described Muslims living in Sydney as ‘cowards’ because ‘they don’t do anything; they’re too peaceful’. [99]

When asked how he would have felt had Mr Greenhalgh died, the offender replied:

When asked how he felt about the fact that he (i.e. the offender) did not die in the incident, he said: [101]

Finally, the offender was asked the following: [102]

On 11 September 2016, the day following the offending, police searched the offender’s residence. Included in the items found was the offender’s handwritten journal. [103] Entries in that journal also inform the circumstances of the offending, and the extremist ideology which lay behind it. Significantly, the journal had been left open on a page which contained (inter alia) the following entry: [104]

There is an overwhelming inference, both from this entry and from the offender’s history to Dr Spencer, [106] that the reference to ‘Sunday’ in that entry was a reference to Sunday, September 11, 2016. That was the day following the attack on Mr Greenhalgh. It was also the 15th Anniversary of the terrorist attack on the World Trade Centre in New York in 2001. In this regard, Dr Shanahan gave evidence [107] that those who subscribe to the ideology of violent jihad generally reference their actions to past events, so that if a violent act can be perpetrated on the anniversary of another violent act it is considered beneficial. The offender told Dr Spencer that this was his intention, but that there was no guarantee that he would see Mr Greenhalgh on the Sunday, the inference being that he decided to attack Mr Greenhalgh when he saw him walking alone the day before.

Another entry in the journal was in the following terms: [108]

Bearing in mind the names of those listed in this entry, Dr Shanahan gave evidence that:

Another entry in the offender’s journal dated 1 September 2016 [112] read (in part) as follows:

A further entry in the journal [113] was in the following terms:

Copies of extremist publications which generally promoted violent ideology were also found by police. These included ‘The Book of Jihad’ [114] and ‘The Story of an American Jihaddi Part One’. [115] In the course of his evidence before me, the offender admitted downloading these publications himself. [116] Having initially said that he didn’t think that he had read them, [117] the offender then said that he had read one of them, [118] and had read part (but not all) of the other. [119]

A laptop computer, which was still powered, was also found in the course of the search. The tabs which were left open on that computer included some of the footage to which I have previously referred [120] as well as a document created by the offender [121] entitled ‘Role Models in Islam (aka the Honor list)’. That document set out the names of a number of people associated with terrorist attacks, including Osama bin Laden;

Whilst the Crown accepted that the offending was unsophisticated in the sense that it involved one person stabbing another, it was submitted that it was nevertheless objectively serious and fell towards the higher end of the scale. Apart from the nature of the attack, the injuries sustained by Mr Greenhalgh as a result, and the offender’s extremist ideology, the Crown pointed to the considerable planning which had been undertaken by the offender which, it was submitted, included:

Counsel submitted that the offender was to be sentenced for what he did, namely:

Counsel submitted that if the evidence of the offender’s extremist ideology were put to one side, what he had in fact done was more akin to a charge of attempted murder.

Counsel further submitted that the nature of the conduct encompassed by s 101.1(1) of the Code was necessarily wide. He submitted that at the most extreme end, and at a level which would be considered to be the most objectively serious, fell conduct resulting in the deaths of multiple people, and/or the destruction of major infrastructure.

Whilst accepting its gravity, counsel for the offender submitted that the offending fell at or below the mid-range of objective seriousness having regard to the wide ranging circumstances in which such offending can be committed.

In assessing the objective seriousness of the offending, the first matter to be observed is that it was not spontaneous. On the contrary, it was planned over a significant period of time. That planning involved (inter alia) specifically targeting Mr Greenhalgh over several months, purely because of a T-shirt the offender saw him wearing, and which bore an image which would be objectively viewed as innocuous, but with which the offender took issue because it was at odds with his extremist views [122] .

The planning also included waiting until Mr Greenhalgh was alone to attack him, and carrying out the attack at a time proximate to the 15th anniversary of the terrorist attacks on September 11, 2001. It was in this way that the offender sought to achieve his stated desire to ‘go global so the believers could see (his) deed)’ [123] , or in other words, to obtain international recognition for his offending. The offender’s planning also involved drawing inspiration and motivation in the period leading up to the attack by viewing extremist footage.

Planning aside, the offender’s attack on Mr Greenhalgh was, of itself, violent, ferocious and inhumane. The offender did not just set out to harm Mr Greenhalgh. He was on a mission to kill him. But for the intervention of Mr Ah Chong, it is highly likely that the offender would have achieved his stated aim.

Further, and whilst I accept that the offender is to be sentenced for what he did, to divorce his conduct from the violent ideology which underpinned it would be both artificial in the extreme, and fundamentally wrong in principle. The authorities to which I have referred make it clear that the depth and extent of an offender’s radicalisation is relevant to an assessment of the objective seriousness of offending of this kind. [124] It would also be wrong in principle to sentence the offender by seeking to draw some comparison between the present offence and an offence of attempted murder. This is because it is the offender’s religious and ideological motivation, and his intention to intimidate the Government, which distinguishes his acts from those which might be committed in pursuit of private ends, and which come within established offences against the person. [125]

In stabbing Mr Greenhalgh, the offender was motivated by an entrenched, immoral and depraved ideology which sought to justify attacking and killing innocent persons in the name of a religious and/or ideological cause. At the time of his attack on Mr Greenhalgh, the offender was unequivocally committed to that ideology. He was thus an unequivocally committed terrorist. When questioned by police about the circumstances of his offending only a matter of hours afterwards, the offender’s demeanour was one of callous indifference towards what he had done. The offender’s analogy between his attack on Mr Greenhalgh, and the experience of eating a chocolate bar, was chilling in the extreme.

At one point in time, Australia was largely isolated from acts of terrorism of a kind experienced by those living in other parts of the world. As a consequence of that isolation, the citizens of this country were, at least for a period, generally not exposed to harm at the hands of those who adhered to extremist ideology. [126] The present offending demonstrates, regrettably, that this is no longer so. The conduct of the offender, motivated and inspired as it was by his extreme, unsound and wholly irrational views, exposed Mr Greenhalgh to the possibility of death, within what should have been the safe sanctuary of the residential community in which he lived. Mr Greenhalgh, like all members of the community, had a right to enjoy a number of fundamental freedoms. They included the right to walk to his local shopping mall, in broad daylight, on a Saturday afternoon, without the fear of being subjected to an unprovoked and life threatening attack, of which he was the specific target because this offender took issue with the image on a T-Shirt that he had seen him wearing. In that sense, the conduct of the offender was not just an attack on Mr Greenhalgh. It was an attack upon the community as a whole. It represented a violation of the most fundamental of democratic rights to which all members of the community are entitled.

The fact that one may envisage offending of greater gravity, perhaps involving multiple victims, does not mean that the present offending was not serious. Clearly, it was. In my view, the degree to which the offending was planned and pre-meditated, its ferocity, the injuries which it caused, and the repulsive and evil ideology which motivated it, place it above the mid-range of objective seriousness.

As I have previously noted, [129] an affidavit of the offender of 20 May 2019 was read in which the offender said (inter alia) the following: [130]

In his affidavit, the offender described his actions on 10 September 2016 as ‘evil’. [131] He expressed his remorse [132] for attacking Mr Greenhalgh. He maintained [133] that he was now a ‘different person’ who had ‘changed (his) thinking’. He went on to say: [134]

The offender also said [135] that at the time of the offending he believed that Islamic State ‘spoke the truth about Islam’, but that he now realised that this was wrong. He attributed that realisation, at least in part, to having spoken with religious scholars and advisers who had taught him that you ‘cannot take isolated verses of the Qu’ran and understand them as promoting violence’. In expressing a willingness to undertake such de-radicalisation programs as may become available to him in the future, [136] the offender said: [137]

The offender also said: [138]

The offender concluded his affidavit by saying: [139]

In his oral evidence before me, the offender again expressed his remorse and apologised to Mr Greenhalgh. [140] He said that at the time of the attack he ‘hated’ Mr Greenhalgh but now ‘could not believe (he) got it so wrong’. [141] He said: [142]

The offender accepted that at the time of his attack on Mr Greenhalgh he held extremist beliefs to which he had adhered since he was 18 years of age. [143] At one point in his evidence [144] the offender described himself as a ‘Jihobbyist’ which, as I understood it, was a term he used to describe a person who treated adherence to extremist views as something in the nature of a hobby. He maintained that this was no longer the case. [145]

The offender was taken in cross-examination to that part of his affidavit [146] in which he referred to ‘minimising’ the radical ideology in his histories to medical practitioners: [147]

The offender said that he did not support the military involvement of Americans, Australians and western allies in the Middle East, [148] but maintained that he did not like Islamic State, saying that it was ‘better if they’re gone’. [149] He said that whilst he regarded the killing of innocent Muslims overseas as a tragedy, he did not consider that innocent people should be killed in retaliation. [150]

Having identified the occasion on which Mr Greenhalgh first gave evidence in 2018 as the “catalytic point in (his) de-radicalisation”, [151] the offender was asked what it was about that occasion that had caused him to change his views: [152]

The offender was asked: [153]

The offender was also asked whether he continued to support attacks in the Middle East: [154]

He was also asked about his current views in relation to martyrdom: [155]

The Crown submitted that given its timing, I should approach the offender’s evidence with scepticism. The Crown submitted, in particular, that the offender’s assertion that the occasion on which Mr Greenhalgh attended Court in 2018 to give evidence was the catalyst for his change of views made little sense, and that the offender continued to pose a danger to the community.

The Crown also pointed to the fact that in his affidavit [156] the offender had said that in 2016 he was ‘off his medication’. The Crown submitted that this served as an indication of a connection between the offender’s failure to take prescribed medication, and his adoption of radical views. The Crown accepted, as I understood it, that whilst ever the offender remained in custody and subject to a strictly supervised medical regime, there was at least a possibility that he may follow a path of de-radicalisation. However, the Crown submitted that there was necessarily a difficulty in forecasting what may happen if the offender were not subject to such a controlled regime at any time in the future.

It was submitted on behalf of the offender that his explanation of the catalyst for his de-radicalisation was to be viewed through the prism of a person who, on any view of the evidence, suffered from a mental illness. Counsel described the offender’s decision to give sworn evidence as ‘brave’. He submitted that I would conclude that he was genuinely remorseful for his offending, and that his prospects of rehabilitation were very good. Indeed, counsel submitted that in many ways, the offender had already rehabilitated himself as evidenced by (inter alia) his expressed willingness to undertake de-radicalisation programs in custody, although it should be noted that on the evidence before me, it is unlikely that such programs will be available to the offender until the latter part of any custodial sentence I impose. [157]

At the risk of stating the obvious, at the time of his offending the offender held extremist beliefs which advocated violence in the name of religion. On his own admission, he had held those beliefs since he was a teenager. The offender’s categorisation of his adherence to those beliefs as being in the nature of a hobby was, to say the least, bizarre. The simple fact is that his views were so deep seated that at the time he purchased the knife which he ultimately used to stab Mr Greenhalgh, he was contemplating carrying out a different act of terrorism which, had it occurred, would have had even more devastating consequences. As a matter of common sense, views which are so deeply held are unlikely to be abandoned in an instant, if they are abandoned at all. The offender accepted that to be the case, describing the process of de-radicalisation as gradual. [158]

I accept that the offender’s explanation of the catalyst for the commencement of his asserted deradicalisation must be viewed and assessed against a background of somebody who is, on the evidence, suffering from a mental illness. That said, the explanation is largely, if not completely, lacking in cogency. The connection between Mr Greenhalgh giving evidence, and the commencement of the offender’s process of deradicalisation, remains unclear to me, particularly in circumstances where the offender conceded that it was possible that if he had seen someone else walking in Minto on the afternoon of 10 September, 2016 he may have attacked them instead. I remain at something of a loss to understand precisely how it is that Mr Greenhalgh’s attendance to give evidence resulted, for example, in the offender losing his previously unabashed and unbridled admiration for the likes of Osama bin Laden, or changing his mind about the events of September 11, 2001.

Necessarily, the offender’s prospects of rehabilitation are dependent, in large measure, upon a complete and unconditional abandonment of the ideology he held when he attacked Mr Greenhalgh. I am unable to accept the submission that the offender has reached the point where he is substantially rehabilitated. That conclusion would necessarily depend upon a finding that his evidence before me should be accepted, and that is a finding which I am not able to reach. Quite apart from the matters to which I have already referred, the fact that the offender admitted lying to medical practitioners in order to be portrayed more favourably in their reports is necessarily significant. At least some of those reports, if not the majority of them, incorporated the opinions which went directly to the offender’s defence of mental illness. It was not simply a matter of the offender lying in order to be portrayed more favourably in those reports. It was, as the offender effectively admitted, a matter of lying in the hope that the jury would find him not guilty on the grounds of mental illness. In acting as he did, the offender demonstrated an unequivocal preparedness to conduct himself in a completely manipulative fashion, and to consciously tell lies in order to suit his own purposes. The significance of the fact that subject of his lies on those occasions was, at least in part, the very ideology which he now maintains that he has abandoned, needs no further comment.

If the offender maintains his current stated mindset, then his prospects of rehabilitation may be favourable. However, I am not persuaded that he will do so. At its highest, his evidence should be regarded as some preliminary indication of a stepping away from his previously held beliefs. For the same reasons, and whilst the offender’s expressions of contrition were unequivocal, I remain sceptical about their veracity. Time will tell whether they prove to be genuine.

In any event, and although issues of rehabilitation require consideration, they are to be afforded less weight in matters of this nature. [159]

In circumstances where I remain unconvinced about the truthfulness of the offender’s remorse and his asserted renouncement of his previously held ideology, personal deterrence remains a relevant factor on sentence. This is particularly so given some of the statements made by the offender to police and medical practitioners regarding his offending, to which I have previously referred. [161]

The offender was born in Australia on 12 December 1993. His parents had migrated to Australia from Bangladesh that year. [164] He was 22 years of age at the time of the attack on Mr Greenhalgh and is now 25. In about 2001, the offender’s parents purchased a home in Minto. His father left the family in 2008 and the offender and his only sibling, a sister who is six years his senior, were cared for by their mother. [165] The offender’s sister moved out of the Minto premises with her husband in January 2014. From that time until her death from cancer, the offender’s mother was his principal carer. The offender appears to have some ongoing relationship with his sister and brother-in-law.

Between 2006 and 2011 the offender attended Hurlstone Agricultural High School, a selective secondary school. [166] In his Higher School Certificate in 2011 he achieved an Australian Tertiary Admission Rank of approximately 96. In 2012 he commenced studying a Bachelor of Pharmacy Degree at the University of Sydney. [167] The level of his academic performance is reflected in the fact that he was awarded a number of credits and high distinctions. [168] The offender is, to say the least, a highly intelligent man.

In the course of submissions, counsel for the offender made reference to the principles applicable to the sentencing of youthful offenders. [169] In my view, those principles have no application in the present case. The offender was not a youth at the time of his attack on Mr Greenhalgh. On the contrary, he was a mature and intelligent 22 year old. Even it were the case that youth was a relevant factor, its weight would be diminished given the nature of the offending. [170]

The offender appeared before the Campbelltown Local Court in 2013 in respect of charges of larceny and destroying or damaging property, such property being Australian flags which were on display at a residence in his local area. The charges were dealt with pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). Whilst the offender is to be regarded as a person of prior good character, that factor is of reduced significance in a case such as the present. [171]

The offender’s history of mental illness includes his admission to Campbelltown Hospital in April 2013 with a provisional diagnosis of OCD, and a differential diagnosis of prodromal psychotic illness. [172] At the time of his discharge, some 10 weeks later, the confirmed diagnosis was one of OCD.

As I have noted, differing opinions were expressed by the experts called in the trial as to the offender’s mental state at the time of his offending. Dr Adams and Dr Reznik concluded that the offender was suffering from schizophrenia. Professor Greenberg’s opinion was that the offender was suffering from OCD. In her affidavit tendered by the Crown, Dr Spencer expressed the opinion that the offender currently suffers from schizophrenia for which he is being medicated in custody. [173]

It was the Crown’s position that it was not necessary for me to reach an affirmative conclusion as to the nature of the offender’s present mental illness and I did not understand counsel for the offender to cavil with that proposition. On any view of it, the offender suffers from some form of mental illness, be it schizophrenia or OCD. The question is how that impacts upon sentence generally, and the question of general deterrence in particular.

The Crown submitted that in circumstances where there was no causal connection between the offender’s mental illness and his offending, any moderation of general deterrence should not be great. The Crown further submitted that the evidence established that the offender’s conditions of custody were not rendered any more onerous on account of his mental illness. In this regard, the Crown pointed to the affidavit of Dr Spencer [174] which, it was submitted, established that the offender was being treated satisfactorily. The Crown submitted that in all of these circumstances, general deterrence remained an important consideration.

Whilst accepting that there was no causal connection between the offender’s mental illness and his offending, counsel for the offender submitted that mental illness remained a relevant consideration on sentence in terms of general deterrence. Counsel took particular issue with the proposition advanced by the Crown that the offender’s conditions of custody were not rendered more onerous as a consequence of his illness. He submitted that the fact that the offender had a mental illness which required treatment at all necessarily rendered his conditions of custody more onerous than might otherwise be the case.

On any view of the evidence, the offender suffers from some form of mental illness. In Director of Public Prosecutions v De La Rosa [175] McClellan CJ at CL set out the following principles regarding the relevance of mental illness on sentence: [176]

The offender’s mental illness was not, in any way, causally connected to his offending. That said, I am unable to accept the submission of the Crown that the fact that the offender’s current mental health is being satisfactorily treated in custody leads to a conclusion that his custodial conditions are not rendered more onerous than might otherwise be the case. The fact that the offender has a mental illness at all must have some effect upon his conditions of custody and I have taken that into account. However, given the nature of the offending in the present case, general deterrence remains relevant and is not significantly moderated by mental health considerations.

The Act requires that I take into account the need to ensure that the offender is adequately punished. [177] Necessarily, the entirety of the matters that I have considered impact upon that consideration.

It is common ground that the offender has been in custody since his arrest on 10 September 2016 and that any sentence I impose should be expressed to commence on that date.

I therefore make the following orders: