Alou v R

1. [1]

   BATHURST CJ: On Friday 2 October 2015, Curtis Cheng (Mr Cheng), a civilian employee with the NSW Police Force, was walking on Charles Street Parramatta after leaving work, when Farhad Jabar Khalil Mohammad (Farhad Mohammad,) a 15 year old youth fell in behind him and shot him in the back of the head. Mr Cheng was killed instantly.

2. [2]

   The firearm used to kill Mr Cheng, a Smith & Wesson .38 revolver, had been supplied to Farhad Mohammad by the applicant, Raban Alou (the applicant), who at the time was aged 18 years and 2 months.

3. [3]

   It was not in issue that the murder was a terrorist act. Immediately after the killing, Farhad Mohammad stood on the footpath facing the entrance of the NSW Police Headquarters and fired the revolver directly at the building and in the air a number of times whilst yelling, “Allahu-akbar” (God is great). Two Special Constables alerted by these activities left the building and in an exchange of gunfire Farhad Mohammad was shot dead. A handwritten note located in the pocket of the black robe worn by Farhad Mohammad made it clear that what occurred was a terrorist act. Amongst other things, the note said “Know your security means nothing to us” and that the purpose of the act was to “put terror in your hearts”.

4. [4]

   It was common ground that at least at that time, the applicant and Farhad Mohammad were radicalised supporters of Islamic State, which the sentencing judge described as “a fanatical terrorist organisation which specialises in the infliction of human misery and death for all who do not agree with its poisonous and criminal views”.

5. [5]

   The applicant was charged on indictment dated 4 July 2017 with the following offence:

6. [6]

   The applicant pleaded guilty to the offence and was sentenced to a term of imprisonment of 44 years with a non-parole period of 33 years. The sentence was arrived at after the provision of a discount of 15% for his plea of guilty.

The relevant legislation

1. [7]

   Section 101.1 of the Criminal Code (Cth) (the Criminal Code) provides that “a person commits an offence if the person engages in a terrorist act”, the maximum penalty being imprisonment for life. Section 11.2(1) of the Criminal Code provides that “a person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly”.

2. [8]

   The expression “terrorist act” is defined in s 100.1 of the Criminal Code in the following terms:

The circumstances of the offence

1. [9]

   The sentencing judge described in considerable detail the circumstances of the offence. His factual findings were not in dispute and the summary below is based on those findings.

2. [10]

   The sentencing judge noted that the applicant was born in August 1997 of Kurdish/Syrian parents. He noted that his parents separated when the applicant was young and they divorced when he was 12 to 13 years of age. The applicant stayed in the care of his mother who did not remarry but he remained in regular contact with his father who remarried and had three more children. The applicant had married a young woman some months before the event the subject of the charges, although it did not appear that he was living with her in the period leading up to the offence.

3. [11]

   The sentencing judge found that a process of radicalisation of the applicant was underway in late 2014 as he became more intensely involved in his religion. The sentencing judge described a report of a Dr Shanahan as providing some context for the events which occurred. Dr Shanahan noted that Islamic State is a Salafist Sunni Muslim organisation which views Shi’ite Muslims as religious heretics who must be defeated militarily and politically. Dr Shanahan noted that in September 2014, the principal Islamic State spokesman exhorted followers of Islamic State to target Westerners, Christians and apostate Muslims for attack. The sentencing judge noted that some of those sentiments were echoed in communications between the applicant and others in 2015.

4. [12]

   The sentencing judge noted that the applicant and others were part of an online WhatsApp closed chat group where they shared views and discussed ideas supportive of Salafist Islam and Islamic State. The chat group was called “The Bricks” (the Bricks Forum) and the profile picture of the group was an Islamic State flag. He noted that on 26 June 2015, the applicant posted a message on the Bricks Forum extolling various terrorist acts in France in the (Shia Kuwait) Mosque and at a Tunisian beach. He noted that on 27 June 2015, another person in the group posted pictures of Australian Defence Force personnel disembarking from a bus on the Bricks Forum. The sentencing judge noted that in response to the pictures, the applicant posted “Omg. May Allah curse them all and destroy them to pieces”. He also noted that in late June and early July 2015 a number of persons posted items on the Bricks Forum concerning the activities of Islamic State fighters and associated topics.

5. [13]

   The sentencing judge noted that on 14 August 2015 the applicant called an associate seeking the number of a person who could provide an Islamic State flag. The sentencing judge noted that these attempts included the applicant requesting a person to make an extremist flag and the applicant purchasing black material from a gift store to be used in the making of the flag. The sentencing judge noted that before arriving at the proposed flagmaker’s house, the applicant conducted counter surveillance. The sentencing judge noted that the flag was never completed but found that it was clear that the applicant was keen to have an Islamic State flag for early October 2015.

6. [14]

   The sentencing judge found that around 1.30pm on 11 September 2015, the applicant met with other persons, including Farhad Mohammad, at Lake Parramatta Park. He described Farhad Mohammad as a person living with his family, including an elder sister, Shadi Mohammad who was 21 years old at the time. He stated that it was clear that both Shadi Mohammad and Farhad Mohammad were radicalised and held “perverse extremist views”. He noted that Shadi Mohammad left Australia on 1 October 2015, linking up with Islamic State in Syria and was said to have died in Syria in an airstrike in 2016.

7. [15]

   The sentencing judge stated that he was satisfied that Farhad Mohammad was radicalised by the time of his involvement with the applicant. However, he stated that the applicant’s actions with Farhad Mohammad from mid-September 2015 served to reinforce Farhad Mohammad’s beliefs and assist him practically to become in October 2015 a killer in the “evil cause” which they both supported.

8. [16]

   The sentencing judge referred to what appeared to be an interaction between Farhad Mohammad and the applicant on 15 September 2015 which involved Farhad Mohammad placing a black sports bag into an alcove at Parramatta Mosque, leaving it there, and the applicant taking it from the Mosque three days later.

9. [17]

   The sentencing judge then recounted the applicant’s attempts to obtain a firearm. He referred to a meeting between the applicant and a person, X3, in a park on 21 September 2015 and stated that he was satisfied to the criminal standard that during the conversation, the applicant held his hands in the shape of a pistol and that the purpose of the meeting was so that the applicant could inquire whether a firearm could be obtained. The sentencing judge stated that X3 referred the applicant to another person, X2, who said he did not have access to a firearm.

10. [18]

    The sentencing judge then stated that those events involving X2 and X3 clearly demonstrated to the criminal standard that the applicant was attempting to source a firearm to be used in a terrorist act more than a week before the events of 2 October 2015.

11. [19]

    The sentencing judge then referred to conversations which took place between the applicant, his wife a Ms Perger, and a person who he had previously spoken to about the flag in which he asked the latter person whether the flag was ready.

12. [20]

    The sentencing judge also referred to a conversation between the applicant and another person which he was satisfied concerned money relating to the funding of the acquisition of a firearm to be used in the commission of a terrorist act.

13. [21]

    It is unnecessary to refer to the sentencing judge’s recounting of events which occurred between 25 and 29 September 2015. However, the sentencing judge recorded that on 29 September 2015 Farhad Mohammad and Shadi Mohammad entered the Westfield Shopping Centre at Parramatta. Farhad Mohammad carried a Nike sports bag. The sentencing judge stated that soon after Shadi Mohammad entered the STA Travel Agency whilst Farhad Mohammad was seated on a bench waiting for her. He said that about 90 minutes later Farhad Mohammad and Shadi Mohammad left the Westfield Shopping Centre in Parramatta concluding that the visit related to Shadi Mohammad’s plan to leave Australia bound for the Middle East on 1 October 2015.

14. [22]

    The sentencing judge noted that on 30 September 2015, an associate of the applicant posted two photographs on the Bricks Forum. He stated that one photograph appeared to be of a man in civilian clothing pointing a gun at the head of a policeman and the other was a photograph of a man in civilian clothing pointing a gun towards a man in military uniform. He noted that these photographs were posted with the caption “Dawla [Islamic State] Assassinations”.

15. [23]

    The sentencing judge also noted that on 30 September 2015 the applicant sent a coded SMS to X2 seeking to arrange a meeting. Later that night, the applicant met with X2 and another person at a chicken shop in Granville. X2 told the applicant that he could not source a firearm.

16. [24]

    The sentencing judge found that there was substantial interaction between the applicant and Farhad Mohammad at the Parramatta Mosque on 1 October. He accepted the Crown submission that their activities had an increased sense of urgency because of Shadi Mohammad’s planned departure to Syria on 1 October 2015. He accepted that there was concern that her departure may attract the close attention of the authorities so the commission of the terrorist act which they were planning might be thwarted.

17. [25]

    In that context, the sentencing judge referred to Farhad Mohammad’s arrival at the Parramatta Mosque at 12.02pm on 1 October 2015 carrying a black Nike backpack. He stated that on that day the applicant sent an SMS message to another person saying “… can you ask ur boss wen im getting my $$$”.

18. [26]

    At 1.00pm on that day the applicant arrived at Parramatta Mosque carrying a black sports bag and being followed by his wife Ms Perger. He entered via the female entrance of the Mosque and left the black sports bag at a location not covered by CCTV. At 1.15pm the applicant, Farhad Mohammad and another person stood inside the Mosque with a large group for prayer. At 1.36pm the applicant waved goodbye to Farhad Mohammad and left the Mosque without the black sports bag. At 2.31pm Farhad Mohammad collected the black sports bag that had been left behind by the applicant and left the Mosque carrying the bag. He returned to the Mosque 25 minutes later without the bag.

19. [27]

    At 2.51pm Farhad Mohammad met his sister Shadi Mohammad and gave her the black sports bag. Shadi was then driven to Sydney International Airport. When she arrived at the airport, she was carrying the black sports bag. Shadi then left Australia bound for Turkey.

20. [28]

    The sentencing judge stated that by this time Shadi Mohammad was entirely radicalised. He found that she played a part in the drafting of the note found on the body of her brother after he shot Mr Cheng. He stated that he was satisfied that Shadi Mohammad had played a major role in the radicalisation of Farhad Mohammad and that her departure from Australia had led to an accelerated plan to carry out the terrorist act. He concluded that it was highly likely that she had departed Australia on 1 October 2015 knowing it would be difficult, if not impossible for her to depart after her brother had committed the planned terrorist act.

21. [29]

    At 2.56pm on 1 October 2015, Farhad Mohammad returned to the Parramatta Mosque. At 9.31pm on that day the applicant and another person attended the vicinity of the home of a person described in the sentencing judgment as TA. Between 9.00pm and 10.30pm that evening, the applicant made five attempts to call TA using Ms Perger’s mobile phone. The sentencing judge stated that that he was satisfied that this attempted contact related to the supply of the firearm from this person against the background of the applicant’s previously unsuccessful attempts to obtain a firearm from X2 and X3. At 10.38pm the applicant called TA and insisted that TA see him that night. The sentencing judge concluded that the applicant wished to progress the supply of the firearm urgently.

22. [30]

    The sentencing judge referred to an exchange of text messages sent between 11.03pm and 11.38pm on 1 October 2015 between the applicant and another person which he said showed the applicant at that stage was under pressure concerning the approaching terrorist act but was not deterred from proceeding further. On 2 October 2015 at 9.21am the applicant and Ms Perger had a conversation in the applicant’s vehicle in the course of which he said “its’ dangerous stuff” and “it’s got to be done” and “whatever I do [Allah] will accept it”. Thereafter the applicant continued to attempt to contact TA for the purpose of obtaining a firearm.

23. [31]

    At 9.58am on 2 October, Farhad Mohammad entered the Parramatta Mosque carrying a Nike backpack on his back.

24. [32]

    Shortly after an exchange of text messages between the applicant and TA, the applicant parked his vehicle in front of TA’s address at Merrylands, left the vehicle, returned some 10 minutes later and drove home. At 11.31am on 2 October, the applicant entered the Parramatta Mosque and sat with Farhad Mohammad. The applicant, Farhad Mohammad and another person spent the next two hours in each other’s company and appeared to be engaged in conversation.

25. [33]

    At 1.19pm the applicant received a call from TA and they agreed to meet at Jones Park. When they met, TA was carrying a black satchel bag across his body and a Foot Locker plastic shopping bag.

26. [34]

    At about 1.36pm the applicant and TA entered the applicant’s vehicle. The applicant drove with TA sitting next to him in the front seat. The two travelled to Merrylands and their conversation was partially recorded. There was a dispute at the sentencing hearing of what was said during the course of the conversation and the sentencing judge concluded that he was not able to be satisfied beyond reasonable doubt of the substance of what was said. However, he concluded that the conversations related to the supply of the firearm which was ultimately used to shoot Mr Cheng, noting that in either of the disputed versions the conversations involved the applicant and TA discussing “the big one” and that it was said at one stage “this is bad man”. The sentencing judge concluded that the activities were part of a plan for the supply of a firearm by TA to the applicant which was perfected when TA supplied the applicant with the loaded Smith & Wesson .38 revolver.

27. [35]

    The sentencing judge traced the subsequent movements of the applicant on 2 October and concluded that all of them related to the provision of a firearm by TA. He stated that he was not satisfied beyond reasonable doubt that the activities gave rise to a finding that there was an earlier but rejected supply of a firearm from TA to the applicant before the supply of the Smith & Wesson .38 revolver used by Farhad Mohammad.

28. [36]

    The sentencing judge noted that at 3.05pm, the applicant arrived at the Parramatta Mosque where he met Farhad Mohammad. He stated by this time the applicant was in possession of the loaded Smith & Wesson .38 revolver. He noted that the applicant, Farhad Mohammad, their brothers and two other males prayed together and sat together and talked. The sentencing judge noted that at 3.46pm the two brothers left the Mosque leaving Farhad Mohammad and the applicant together. At 3.48pm the applicant walked out of the Mosque to his vehicle, got into the front seat and remained there for a short time. The sentencing judge noted that he then left the vehicle and appeared to be holding or adjusting something in his left hand. The applicant walked towards the entrance to the Mosque holding his left hand under his robe in an awkward position. The sentencing judge stated that at this time the applicant was carrying the Smith & Wesson .38 revolver into the Mosque for the purpose of giving it to Farhad Mohammad.

29. [37]

    The sentencing judge noted that at 3.58pm the applicant and Farhad Mohammad entered the female only prayer hall. Farhad Mohammad was carrying a black Nike backpack. The two men remained alone together in the female prayer room and during the meeting, the applicant handed the Smith & Wesson .38 revolver to Farhad Mohammad.

30. [38]

    The sentencing judge stated that he was satisfied to the criminal standard that the applicant was well aware that Farhad Mohammad had been radicalised and the loaded firearm was provided to him for the purpose of a serious act of violence being carried out soon after on the street in Parramatta. He stated that it was proper to conclude that the applicant was aware of the content of the note possessed by Farhad Mohammad. He stated that the note pointed to an attack directed to a law enforcement agency and that the NSW Police Headquarters was within walking distance of the Parramatta Mosque as the applicant knew. He concluded that the applicant was aware the attack was to take place in the vicinity of the NSW Police Headquarters.

31. [39]

    The sentencing judge stated that conclusion was fortified by the applicant’s subsequent movements when he left the Mosque. He drove past the Police Headquarters at Parramatta, taking a route which he had not taken before. The sentencing judge inferred that the applicant expected an act of serious violence to take place in the vicinity of the Police Headquarters and was aware that Farhad Mohammad intended to carry out the killing of a person who was associated with the NSW Police Headquarters in a public street, with the motivation for the killing being the perceived advancement of the extremist religious beliefs which the applicant and Farhad Mohammad shared.

32. [40]

    The sentencing judge then described the murder of Mr Cheng and Farhad Mohammad’s subsequent killing in the manner I have set out above. He noted that when Farhad Mohammad’s clothes were searched a handwritten note was located which read as follows:

33. [41]

    In a subsequent WhatsApp message inquiring as to the whereabouts of Farhad Mohammad, the applicant responded as follows:

34. [42]

    The sentencing judge also referred to conversations between the applicant and Ms Perger on 3 October 2015, which he stated assisted in understanding the applicant’s knowledge and role in the events of the previous day. In the first of these conversations, the applicant made the following remarks:

35. [43]

    The sentencing judge stated that the proper construction of those words was that the applicant had been discussing the firearm with Farhad Mohammad and had been taking steps to obtain an Islamic State flag for a purpose associated with a terrorist act, although the flag had not been completed by the time of that act.

36. [44]

    It is unnecessary to set out the terms of the second conversation. However, the sentencing judge noted that in this conversation, the applicant was praising Farhad Mohammad and expressing satisfaction as to what he had done, as well as foreshadowing scrutiny of himself by law enforcement agencies.

37. [45]

    The sentencing judge also referred to subsequent conversations between the applicant and Ms Perger and the applicant and Farhad Mohammad’s brother to similar effect.

38. [46]

    The sentencing judge also referred to a conversation between the applicant and another person after the applicant’s arrest in which the applicant said that Mr Cheng was a “copper”. The sentencing judge noted that in that conversation the applicant indicated that the teaching of “Ibn Taymiyyah” made the killing permissible “… course … we are in dark times”. The sentencing judge described Taqi al-Din Ahmad ibn Taymiyyah as a thirteenth to fourteenth century Islamic scholar who is considered to be a significant intellectual source for many hard-core radical Salafist groups. The applicant spoke of a fatwa by a Sheikh that the blood of the Kaffir halal and that “… you are allowed to kidnap the woman and kidnap the children”.

The sentencing judgment

1. [47]

   After setting out the facts which I have summarised above, the sentencing judge dealt with principles relating to the sentencing of terrorist offenders. He noted that as with sentencing for all Commonwealth offenders, the provisions of s 16A of the Crimes Act 1914 (Cth) were to be applied. The sentencing judge then set out a number of principles which have been identified by Courts in Australia and the United Kingdom in respect of sentencing for terrorist offences. He noted, first, that the primary considerations on sentence for terrorist offenders are the protection of the community, the punishment of the offender, the denunciation of the offending and both specific and general deterrence. He stated that subjective circumstances and mitigating factors, including considerations of rehabilitation, are to be given less weight and that the religious and ideological motivation of an offender is relevant to the issue of community protection as well as to the assessment of the objective gravity of the offence. The sentencing judge noted that where it is not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance and weight must be given to the need for general deterrence, even if the force of ideological or religious motivations are such that deterrence may not be effective.

2. [48]

   The sentencing judge stated that whilst youth is relevant to determining the weight to be given to general deterrence and denunciation in the sentencing equation, its weight is diminished quite measurably in terrorist cases where the offender participates in, plans or carries out actions of extreme violence. He stated that the protection of society and the upholding of its most fundamental values necessitate that in terrorist cases, the sentencing considerations of general deterrence and denunciation must be given primacy above the ameliorating effect of youth.

3. [49]

   The sentencing judge referred to the following four matters set out in R v Kahar [2016] 1 WLR 3156 as relevant in considering the nature and gravity of terrorist offences. They were as follows:

4. [50]

   In considering the objective seriousness of the offence, the sentencing judge stated that he was satisfied that the applicant was a radicalised supporter of Islamic State certainly from May 2015 and by September 2015, he wished to see a terrorist act carried out in the name of Islamic State in Sydney. He stated that the applicant knew that Farhad Mohammad was radicalised with similar views, and by September 2015, was aware that Farhad Mohammad was prepared to carry out a terrorist act involving the shooting of a person or persons in a public street.

5. [51]

   The sentencing judge noted that for more than a week prior to 2 October 2015, the applicant was involved in seeking a firearm for Farhad Mohammad and after several unsuccessful attempts, obtained the Smith & Wesson .38 revolver which he provided to Farhad Mohammad. The sentencing judge stated that the applicant was not acting merely as a firearms supplier for the purpose of some criminal activities, but shared the extreme view of the person who was to carry out the terrorist act using the firearm. He also noted that the applicant had requested that an Islamic State flag be made for him and was satisfied to the criminal standard the applicant intended that the flag be used as a prop in the commission of a terrorist act.

6. [52]

   The sentencing judge stated that the terrorist act was not one carried out with little planning and on the spur of the moment. He stated that he was satisfied to the criminal standard that Farhad Mohammad and the applicant were involved for at least several weeks in a plan to carry out an act with the precise nature of the act only becoming clear in September 2015.

7. [53]

   The sentencing judge stated that he was satisfied that by the time Farhad Mohammad left the Parramatta Mosque, the applicant knew that it was intended to use the revolver to shoot a person or persons in the vicinity of the NSW Police Headquarters and the applicant did nothing to dissuade Farhad Mohammad from that course. Rather he stated that the applicant was prepared to exploit a young person as the perpetrator of a terrorist act in the knowledge that it was planned to kill a person or persons in the street and that there was every prospect that Farhad Mohammad himself would die. He concluded that statements made by the applicant prior to 2 October 2015 reinforced the finding to the criminal standard that he expected a person to be killed in a terrorist act. The sentencing judge stated that the applicant’s comments to Ms Perger and others endorsed Farhad Mohammad’s actions and appeared to celebrate the commission of the crime.

8. [54]

   The sentencing judge accepted the submissions by the Crown that the applicant was involved in a number of critical steps leading to the commission of the terrorist act including:

9. [55]

   Referring to R v Kahar, the sentencing judge expressed the following conclusions:

10. [56]

    The sentencing judge noted that it was not a universal principle that the culpability of an aider and abettor is less than that of a principal offender. He stated that the applicant was a very active planner and participant in the offence and that although he was liable as an aider and abettor, the principal offender was only 15 years old and could not have committed the terrorist act unless equipped by the applicant and then further encouraged to do so. He stated that this was a case where the moral culpability of the aider and abettor was close to, if not at the same level as, the principal offender. In those circumstances, the sentencing judge stated that he was well satisfied that the offence was of a very high level of objective gravity. He noted that the applicant was involved in the planning of the act in an intensive way and obtained the firearm which he furnished to the planned juvenile killer who then used it for that purpose. He stated that the applicant’s involvement was not remote or peripheral from the terrorist act itself.

11. [57]

    In dealing with the applicant’s subjective circumstances, the sentencing judge noted that the applicant finished Year 10 when in juvenile detention and upon leaving school, worked briefly as a removalist and then did labouring work with friends on construction sites.

12. [58]

    The sentencing judge noted that the applicant had a criminal history being dealt with in the Parramatta Children’s Court for an offence of robbery in company in March 2013 where he was placed on probation for 12 months. The applicant had also appeared at the Parramatta Children’s Court on two counts of robbery whilst being armed with an offensive weapon in March 2014 to which he was sentenced to a control order of 14 months imprisonment with a non-parole period of 4 months, the sentence taking into account offences of possessing an unauthorised prohibited firearm and being in custody of a knife in a public place.

13. [59]

    The sentencing judge also noted that on 21 January 2015 the applicant was sentenced to 80 hours community service for an offence of robbery in company committed in October 2014.

14. [60]

    The sentencing judge referred to a Department of Juvenile Justice report of 14 January 2015 which he said provided some background to the applicant. The report noted that the applicant had been supervised by the Department of Juvenile Justice since 14 March 2014, having been referred to a group-based cognitive behavioural intervention program designed to reduce violence. The report noted that he completed the program in November 2014.

15. [61]

    The sentencing judge referred to the statements in the report that the applicant was not engaged in school, attributing his non-attendance to a poor relationship with his teachers and wanting to spend time with his peers.

16. [62]

    The report stated that the applicant had informed the Department that around the time of the offences to which the report related, he had a very negative peer group who were involved in anti-social behaviour. The applicant stated that cannabis use was a contributing factor to his offences as he wanted money to purchase cannabis.

17. [63]

    The report stated that since the offences, the applicant had informed the Department that “he decided to make a choice that was better for him” which “involved getting more involved in his religion, stopping his cannabis use and disassociating himself from his negative peer group”. The sentencing judge stated that it seemed clear that the change the applicant was undertaking based upon his religious views was a process of increasing radicalisation which saw him becoming involved in the terrorist act in October 2015.

18. [64]

    The sentencing judge also referred to a psychiatric report of Dr Stephen Allnut dated 25 October 2016, which stated that the applicant did not manifest a diagnosable psychiatric condition at the time he examined him and there was no evidence of anxiety, depressive mood or psychotic disorder and no evidence of significant cognitive impairment.

19. [65]

    The sentencing judge also referred to a psychological report of Mr Patrick Sheehan dated 25 January 2018. He noted that Mr Sheehan stated that the applicant’s “discourse often became political at which point he seemed to speak in set statements, using higher formal language” with there being “elements of grandiosity during these exchanges”. Mr Sheehan also noted that the applicant “expressed dystopian and cynical views on Western society, with little hope that he would be released from custody at any stage”.

20. [66]

    The sentencing judge noted that the applicant told Mr Sheehan that his brothers had become more focused on Islam when he was 15 years old, and his thought processes were influenced by an Australian Federal Police visit to his family home in September 2014 in connection with the alleged activities of his brothers.

21. [67]

    The sentencing judge noted that the applicant had told Mr Sheehan that he supported Islamic State. He referred to Mr Sheehan’s comment that the applicant “lacked sufficient insight to explain why had had been attracted to an interpretation of his religion that was permissive of violence”. The sentencing judge noted that the applicant had told Mr Sheehan “his view that jihad was a central aspect of Islam and that to deny this would be to practice an incomplete version of the religion” and that since his arrest he had “changed his allegiance from Islamic State to Al Qaeda, which he feels is a more consistent version of Islam”.

22. [68]

    The sentencing judge referred to Mr Sheehan’s observation that the applicant remained unable to express any remorse for the consequences of his behaviour and to the observations made by Mr Sheehan concerning the applicant’s risk to the community. He referred to the fact that Mr Sheehan noted that “assessing the risk of reoffending through violent political extremism remains a fledgling science at this stage due to the evolving socio-geopolitical landscape and the heterogeneity of the subject population”. The sentencing judge referred to the concluding comments of Mr Sheehan’s report which were in the following terms:

23. [69]

    The sentencing judge referred to the conditions of the applicant’s custody, noting that he was housed at the High Risk Management Correctional Centre (HRMCC) within the Goulburn Correctional Complex. He noted one significant incident of misconduct whilst in custody, namely, during a time when Correctional staff and NSW Fire Fighters were responding to a cell fire lit by two other inmates, the applicant made threats including use of the words to the effect “I will get every single one of you on the outside. I’m going to put a bullet in every single one of you” and “It will be like how we behead you infidels”.

24. [70]

    The sentencing judge noted that the applicant had been assigned an “Extreme High Risk Restricted Designation” by the Commissioner of Corrective Services. He noted that the applicant could apply to associate with other inmates with a similar security classification in accordance with his behavioural management plan.

25. [71]

    The sentencing judge noted that between 7 October 2015 and 26 December 2017, the applicant had no family visits, although he had had telephone access to his family.

26. [72]

    He noted that inmates at the HRMCC are permitted access to amenities including a television, fridge, radio and other items depending on their behavioural management levels, as well as access to library books and the computer room on request each morning.

27. [73]

    The sentencing judge noted that the applicant had not expressed any contrition or remorse for his crime. He stated that the applicant’s reaction to the understandable distress of the Cheng family has been to offer no words of comfort or apology and that his response was devoid of basic humanity.

28. [74]

    The sentencing judge stated that the applicant’s lack of contrition and remorse was demonstrated most starkly by what he said in a telephone call to his mother on 24 December 2017. He stated that during that conversation there seemed to be an attempt by family members to speak sensibly to the applicant and that at one point his brother said to him “As time goes on you’ve got to mature and you’ve gotta be thinking more calmly” to which the applicant replied amongst other things “I’m mature enough and [I swear] I have no regrets anything of me being here, this is the [fate] of Allah/God … I do not regret one single thing that I did on that day and when I go to court I swear by Allah/God I’m never ever going to say I’m sorry for what I did. But rather I’m gonna praise him, and say it’s gonna happen again [God willing]”.

29. [75]

    The sentencing judge noted that the applicant had expressed no interest in entering a deradicalisation program. He said that whilst it was always possible that a person may change a strongly fixed view in the future, the applicant’s views were already deeply entrenched as demonstrated by his comments made before and after the murder of Mr Cheng and in his statements to Mr Sheehan and to his mother. He stated that the applicant’s unwillingness to demonstrate a simple act of humanity by indicating his regret to Mr Cheng’s family for what had happened was a further indicator of the locked-in nature of his perverse and dangerous views.

30. [76]

    The sentencing judge stated that it was quite clear that the applicant remained dangerous to the general community given his views and his willingness to act upon them in the way demonstrated in this offence. He stated that in making an assessment of his prospects of rehabilitation, the prognosis was grim. He stated that whilst at some point in the future as he ages, there was a possibility the applicant may come to view things differently so that he would be receptive to rehabilitative measures, there was no present foundation for such a conclusion.

31. [77]

    The sentencing judge noted the submission that a sentence that held some hope in the future for the applicant, may assist a change in his mindset at some considerably later time. He stated that even that was doubtful and speculative given the evidence before the Court but that he kept the submission in mind, in particular, given the youth of the applicant.

32. [78]

    The sentencing judge also noted the applicant’s refusal to stand at the commencement and conclusion of each court session, notwithstanding what was stated in the “Explanatory Note on the Judicial Process and Participation of Muslims” prepared by the Australian National Imams Council, which stated that there was no prohibition or restraint on a Muslim standing up for a magistrate or judge as a sign of respect to the magistrate or judge and to the court. He stated that the applicant’s approach was based upon an unspecified foundation in his religious beliefs. He stated that the applicant had an entrenched approach which extended to his attitude towards the courts and that a mindset of that type did not assist with respect to his prospects of rehabilitation.

33. [79]

    In that context, the sentencing judge also noted that when confronted with a Victim Impact Statement read in Court by Mr Cheng’s wife, he sat coldly without emotion or any sign of ordinary human feelings. He stated that the applicant’s response was a further demonstration of his lack of contrition and remorse and his grim prospects of rehabilitation.

34. [80]

    The sentencing judge allowed a discount of 15% for the utilitarian value of the plea of guilty.

35. [81]

    The sentencing judge then considered the factors to be taken into account under s 16A of the Crimes Act. So far as the nature and circumstances of the offence and course of conduct (Crimes Act s 16A(2)(a) and (c)) was concerned, he repeated that he was satisfied that the offence was extremely serious and at the very high end of the scale of seriousness for an offence of the nature in question. He stated that he was satisfied to the requisite standard that the applicant played a key role in the enterprise and despite his age, the applicant was a pivotal participant in the criminal activity. He stated that it was a planned criminal act which was not spontaneous.

36. [82]

    The sentencing judge also noted the Court was required to have regard to the personal circumstances of the victim and any evidence of harm, loss or damage (s 16A(2)(d) and (e)). In that context he noted that Mr Cheng had been employed by the NSW Police Force as a civilian finance worker from 11 November 1997 until the date of his death and had been married for over 31 years. He noted that Mr Cheng was leaving work and was unarmed and innocently going about his normal life when he was selected randomly and murdered. The sentencing judge stated that the trauma, grief and emotional harm caused to Mr Cheng’s family, friends and colleagues was entirely clear from the Victim Impact Statement and all the evidence before the Court.

37. [83]

    The sentencing judge noted that for the purpose of s 16A(2)(f), the offender had displayed no contrition or remorse. He noted that the Court must have regard to personal deterrence (s 16A(2)(j)). He noted that the applicant had a prior criminal history and his adherence to extremist views embracing the need for violent jihad required a strong element of personal deterrence in the sentence.

38. [84]

    The sentencing judge also noted that he must have regard to general deterrence, a very strong element of which is required in sentencing for terrorist offences, even more so when the terrorist offence has caused death and thus actual harm to the community.

39. [85]

    The sentencing judge also had regard to the character, antecedents, age, means and physical or mental condition of the offender (s 16A(2)(m)). He noted that the applicant was 18 years old at the time of the offence and stated that he kept in mind statements of principle concerning the relevance of youth in sentencing for terrorist offences. He stated however, that “[w]hilst the youth of an offender is always relevant, it may be given less weight in light of the seriousness of the offence and the absence of any causal link between the [applicant’s] age and his criminal conduct”. However, he said that he had “regard to the youth of the offender” and the length of time he was likely to be in custody under the sentence which is to be passed. He also stated that he kept in mind the submission made on behalf of the applicant that the sentence should not leave him devoid of an incentive to rehabilitate himself.

40. [86]

    The sentencing judge noted that there was no evidence that the applicant’s health was in any way compromised. In relation to rehabilitation, he repeated the view that it was not possible to decide at this point that his prospects of rehabilitation were anything other than bleak.

41. [87]

    The sentencing judge noted that he was required to consider the probable effect on the applicant’s family and dependents. He stated that the applicant was in a relationship at the time of the offence but the relationship had ended and the applicant had no children. He stated that the applicant’s family members were clearly concerned about his present position but there was no scope for taking that into account beyond its bare recital.

42. [88]

    The sentencing judge stated that s 19AG of the Crimes Act required the Court in sentencing for a terrorist offence to fix a non-parole period of at least three-quarters of the head sentence. He stated that the operation of the section should not result in a lower head sentence being imposed in an effort to ensure that a specific minimum term can be found to apply. He stated that he was satisfied the Court could fix a determinative sentence for a period that exceeded that contained in s 19AG(3).

43. [89]

    The sentencing judge concluded that where a Court considers a very lengthy determinate sentence is appropriate (with a head sentence exceeding 30 years), it is open to the Court to pass such a sentence if the objective gravity of the terrorist offence is of such a level that a very lengthy determinate sentence is required. He stated that a different approach would not comply with the principle that the sentence be reasonably proportionate to the objective gravity of the offence.

44. [90]

    The sentencing judge stated that the existence of the continuing detention regime after the expiration of sentence contained in s 105A.23 of the Criminal Code (Cth) was not to be taken into account in the imposition of the sentence itself.

45. [91]

    The sentencing judge stated that he was satisfied in all the circumstances that before the application of the 15% discount, a sentence of imprisonment of 52 years was appropriate. He stated that after applying the 15% discount with some rounding, the head sentence would comprise of a term of 44 years imprisonment and applying the formula in s 19AG(2), there would be a non-parole period of 33 years. He stated that the sentence should commence from the date of the applicant’s arrest, namely 7 October 2015.

The grounds of appeal

1. [92]

   The applicant relied on the following grounds of appeal:

Ground 1- The sentencing judge erred in sentencing the applicant on the basis that his prospects of rehabilitation were poor

1. [93]

   The applicant contended that the sentencing judge was not entitled to sentence him on the basis he was a danger to the community and had “grim” or “bleak” prospects of rehabilitation.

2. [94]

   Senior counsel for the applicant said that the essence of the submission was that the sentence would be very long and in light of what the psychologist, Mr Sheehan, stated in his report that because the prospective sentence would be so long it was not possible to predict the applicant’s prospects of rehabilitation, the sentencing judge should not have sentenced on the basis which he did. The passage relied on in the report of Mr Sheehan is in the following terms:

3. [95]

   Senior counsel for the applicant submitted that notwithstanding this passage, the sentencing judge sentenced the applicant on the basis his prospects of rehabilitation were “poor”, “grim” or “bleak”. He referred to s 16A(2) of the Crimes Act which he noted commenced with the words “…the court must take into account such of the following matters as are relevant and known to the court”. Senior counsel for the applicant submitted that it was not possible to know the applicant’s prospects of rehabilitation decades in the future. He described the situation as that of a young man who clearly had at the time of sentence an ideological position which if maintained meant he was a danger to the community, but submitted that as a matter of common sense, it could not be said that it was unlikely to change in 20 years or that his prospects of rehabilitation are “poor” or “grim” or “bleak”.

4. [96]

   Senior counsel for the applicant placed particular reliance on the following passage of the judgment of the plurality in Bugmy v R (1990) 169 CLR 525 at 537; [1990] HCA 18 (‘Bugmy’):

5. [97]

   Senior counsel for the applicant submitted this was the approach which should have been taken in the present case. In the written submissions, it was contended that the sentencing judge could not be satisfied beyond reasonable doubt that the prospects of rehabilitation were poor.

6. [98]

   In written submissions in reply, the applicant contended that it was not correct to say that the applicant was sentenced on the basis that his prospects of rehabilitation were “not known” to the Court. The submissions referred to the fact that an actual assessment of the prospects was made and the reference to the “danger to the general community” and the length of sentence demonstrated that the sentencing judge did not sentence on this basis.

7. [99]

   The Director pointed to the fact that the offence in question was a particular type of offending where the ideology is embedded into the offending itself. She submitted that it was clear that the cases dealing with such offending were united in saying that if the radical ideology is maintained, the prospects for rehabilitation were poor.

8. [100]

   The Director submitted that what has to be taken into account are the relevant factors so far as they are known and it is the prospects of rehabilitation as then known and not what they are going to be in 15 or 20 years’ time. She submitted referring to the passage in Bugmy that the majority were not saying that the prospects of rehabilitation could not be taken into account but rather that they were of less significance the longer the minimum term.

9. [101]

   The Director in her written submissions contended that the matters to which I have referred at [73]-[76] and [78]-[79] above provided the evidentiary foundation for the conclusion of the sentencing judge on this issue. Further, she submitted that the sentencing judge did not conclude that the poor prospects were an aggravating factor, rather he did no more than have regard to a factor required to be taken into account by s 16A(2)(n) of the Crimes Act and came to his conclusion on the state of the evidence.

Consideration

1. [102]

   Section 16A(2) obliges the court on sentencing to take into account the various matters listed in the subsection so far as they are relevant and known to the court. They include the prospect of rehabilitation of the person: s 16A(2)(n). The task is to be carried out on the evidence before the court.

2. [103]

   In the present case, the evidence provided ample support for the finding by the sentencing judge. It is not in issue that both at the time of the offence and at the time of his sentence, the applicant was a radicalised supporter of Islamic State which, as the sentencing judge found (see [11] above) was dedicated among other things to targeting Westerners, Christians and apostate Muslims for attack. His commitment was shown in his expression of views on the Bricks Forum, in his preparation for the attack, including seeking to obtain an Islamic flag, his conversations subsequent to the killing (see [41]-[46] above) and his lack of remorse and regret for his actions which continued up to the time he was sentenced.

3. [104]

   The conclusions reached by the sentencing judge were supported by the statements made by the applicant to Mr Sheehan (see [67]-[68] above) and the applicant’s lack of interest in taking part in any deradicalisation programme.

4. [105]

   The criticism of the reasoning of the sentencing judge was that his Honour had no material on which to conclude that the position would remain the same on what on any view would be a very lengthy sentence. That may be so, even though there was no evidence that there would be any change. However, that does not mean that the sentencing judge is not obliged to make an assessment of the prospects of rehabilitation on the evidence before him.

5. [106]

   What I have written is not inconsistent with the passage from the judgment in Bugmy relied upon by the applicant (see [95] above). That passage in Bugmy was dealing with the fixing of the minimum term rather than the head sentence. The statement “…the likelihood that he will re-offend will become a matter for assessment. It is not possible to say now what the likelihood will be then”, was directed to the assessment which was required to be made at the expiration of the non-parole period. It is not authority for the proposition that assessment of the prospects of rehabilitation cannot be made in the circumstances of a lengthy head sentence.

6. [107]

   Further, it must be remembered that the sentencing judge referred to the statement of Mr Sheehan, “[t]he nature of his sentence will be an influencing factor in his future prognosis, with a sentencing structure that allows for hope, creating a platform for motivation”. The sentencing judge recognised the possibility that the applicant may see things differently at some time in the future and that a sentence which held some hope in the future may assist in his change of mindset (see [76]-[77] above).

7. [108]

   In these circumstances, this ground of appeal has not been made out.

Ground 4 – The sentencing judge erred in giving primacy to general deterrence and denunciation above the ameliorating effect of youth

1. [109]

   It is convenient to deal with these grounds together.

2. [110]

   Senior counsel for the applicant stated that the core argument in respect of these grounds was that the sentencing judge gave “a priori primacy to sentencing purposes of general deterrence, specific deterrence, incapacitation and retribution, all the factors which in the Veen (No 2) analysis (referring to Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14) point towards a severe sentence and gave them primacy” over the consideration of rehabilitation which incorporates within it the element of youth.

3. [111]

   Senior counsel for the applicant referred to the remarks of the sentencing judge, to which I have referred at [47] above, and similar statements to the effect that the primary considerations on sentence are protection of the community, punishment of the offender, denunciation, both specific and general deterrence and that subjective circumstances and mitigating factors, including consideration of rehabilitation, were to be given less weight (see [46] above). He submitted that demonstrated that the sentencing judge gave “a priori primacy to one side of the equation as compared with … rehabilitation”.

4. [112]

   Senior counsel for the applicant also referred to the statement by the sentencing judge that “[w]hilst the youth of any offender is always relevant, it may be given less weight in light of the seriousness of the offence and the absence of any causal link between the [applicant’s] age and his criminal conduct”.

5. [113]

   In his written submissions, senior counsel for the applicant, referring to Webster v R (2016) 258 A Crim R 301; [2016] VSCA 66 at [7]-[8] (‘Webster’), contended that the approach taken by the sentencing judge was erroneous. He referred to statements in Webster at [26] that there was an established body of research particularly in relation to susceptibility to peer influence, future orientation and the capacity for self-regulation. He also referred to cases including BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 and KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 5 (‘KT’) which established that when sentencing a youthful offender, considerations of retribution and general deterrence should in general be regarded as subordinate to the need to foster the offender’s rehabilitation.

6. [114]

   Senior counsel for the applicant submitted that there was “a separate question”, namely, whether there was a causal link between the offender’s age and his criminal conduct. In that context, he referred to the statement of Mr Sheehan that the applicant’s environment during his adolescent development was an important contributing factor to the pathway he ultimately chose, something he submitted was not referred to by the sentencing judge. He accepted that this was not a case where youthfulness led to a lack of impulse control or making decisions without thinking. He submitted that there was another aspect of youthfulness which he described as immaturity. He submitted that Mr Sheehan was referring to immaturity in his comments.

7. [115]

   Senior counsel for the applicant noted that the sentencing judge accepted that the applicant was radicalised when he was 17 years of age. He noted that Mr Sheehan referred to the fact that the applicant had been exposed to fundamentalist religion through his older brothers’ associates. However, there appeared to be nothing to suggest that his brothers were radicalised as distinct from being more focused on Islam. Further, it should be noted that in his meeting with Mr Sheehan, the applicant rejected the idea that he was radicalised or somehow influenced by others in his association.

8. [116]

   Senior counsel for the applicant also referred to the fact that Mr Sheehan in his report noted that the police raids on the applicant’s home was a factor in the development of his radical views. He also referred to the fact that the report of Mr Shanahan, the expert in Arabic and Islamic studies whose report was tendered by the Crown, stated that from June 2014, the Islamic State was on a major propaganda effort through social media to urge Muslims to fight against a crusade against the Islamic State.

9. [117]

   Senior counsel for the applicant submitted that in those circumstances there was no question that by reason of a variety of factors the applicant was radicalised whilst he was technically a child. He submitted that if you are immature, you see the world simplistically. He submitted that in the circumstances, his immaturity was relevant to an assessment of his culpability.

10. [118]

    In relation to the protection of society, senior counsel for the applicant submitted that it was necessary to look at the particular circumstances of the case and that the Court was in different territory if sentencing a person for 20 or 30 years rather than a smaller number of years.

11. [119]

    Senior counsel for the applicant submitted that what he was putting in respect of the applicant’s youth and immaturity related to three propositions, first, that the sentencing judge should have found that immaturity played a part in his radicalisation and consequently reduced his moral culpability, second, it demonstrated that the sentencing judge erred in giving a priori primacy to specific and general deterrence and, third, it demonstrated error in the assessment by the sentencing judge of the prospects of rehabilitation. He submitted that the approach taken to the offender’s youth should not vary depending on the type of offence. He submitted that the approach taken by the sentencing judge was inconsistent with the approach of McClellan CJ at CL in KT at [22].

12. [120]

    Senior counsel for the applicant also submitted that in considering the question of general deterrence, it was necessary to factor in what was said by Spigelman CJ in Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360 at [87] (‘Lodhi’) that given the motivation and thought process which leads to the commission of offences of the nature of the ones in question, general and specific deterrence may be entitled to less weight. He submitted that what was said by the Chief Justice was cited by this Court in Elomar v R [2014] NSWCCA 303 at [703] without disapproval. He recognised however, that a different approach could be seen in the decision of the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v MHK [No 1] (2017) 52 VR 272; [2017] VSCA 157 at [51]-[53] (‘MHK’).

13. [121]

    Senior counsel for the applicant emphasised that he was not relying on what Spigelman CJ had said to contend that general and specific deterrence are not important, but rather submitted that the matters referred to by Spigelman CJ were something to be factored in to sentencing for an offence of this nature and in the present case, it was not necessary to impose a sentence of 52 years to achieve those purposes.

14. [122]

    The Director referring to what she described as the “very powerful statements” of the Victorian Court of Appeal in MHK at [51]-[53] submitted that “the principles of punishment and denunciation … must loom large”. She described the offence as a “profoundly serious offence”. She submitted that it was the task of the courts to impose sentences which “properly and clearly reflect on behalf of the public in relation to which these offences are uniquely aimed” the principles of punishment and denunciation, along with general deterrence and specific deterrence and protection of the community with matters personal to the offender, including youth and prospects of rehabilitation, having “a much smaller role to play”. She submitted this was consistent with what was said by Price J in Lodhi at [274]. In her written submissions dealing with Ground 2, the Director contended that the question of the weight to be given to general deterrence was a matter for the sentencing judge and no error arises because a sentencing judge gave particular weight to a particular factor which is required to be taken into account.

15. [123]

    In her written submissions, the Director submitted that the applicant’s reliance on what was said by Spigelman CJ in Lodhi was misconceived. She stated that Spigelman CJ’s remarks in Lodhi at [87] must be read in the context of his approval of what was said by Crockett J in R v Sakr (1987) 31 A Crim R 444 with which the Chief Justice expressly agreed. The relevant passages from the judgment of the Chief Justice are in the following terms:

16. [124]

    The Director also emphasised the use of the word “may” by Spigelman CJ in [87] of his judgment cited above.

17. [125]

    The Director submitted that “[g]eneral deterrence is a very strong consideration in cases concerning violence and community harm”. She submitted that the sentencing judge correctly recognised that despite the offence arising from religious or ideological convictions, “weight must be given to the need for general deterrence even if the force[s] of ideological or religious motivations are such that deterrence may not be effective”. She also submitted that to the extent that less weight was given to general deterrence, greater weight may be given to the element of protection of the public including incapacitation, referring to what was said by Spigelman CJ in Lodhi at [91]-[94]. She also submitted in her written submissions that Ground 3 of the grounds of appeal was based on a similar misapprehension of what was said by Spigelman CJ in Lodhi and should also be rejected.

18. [126]

    In relation to Ground 4, the Director submitted that the sentencing judge in fact took the applicant’s youth into account and that there needed to be an incentive for rehabilitation referring to that portion of the judgment which I have set out at [85] above.

19. [127]

    The Director also submitted in writing that the contention that the sentencing judge erred because he did not address the fact that the applicant’s youth made him susceptible to older figures, should be rejected. She noted that the sentencing judge referred to what the applicant told Mr Sheehan, see [65]-[67] above. She also noted that Mr Sheehan recorded his views in the following manner:

20. [128]

    She submitted that given the way that the conclusion was expressed and the fact that the applicant did not give evidence, it was open to the sentencing judge to take the approach he took.

21. [129]

    The Director also submitted that the submissions made on behalf of the applicant did not engage with the line of authority which established that whilst youth is relevant in determining the weight to be given to general deterrence and denunciation, its weight is considerably diminished in terrorist cases. She referred to MHK and at the hearing to KT at [25] and [103].

Consideration

1. [130]

   I have referred to what senior counsel for the applicant described as his core submission at [110] above, namely, that the sentencing judge erred in giving primacy to general deterrence, specific deterrence, incapacitation and retribution over consideration of rehabilitation which incorporates the element of youth. That is in effect Ground 4. It is convenient to deal with that submission and that ground before dealing, to the extent necessary, with Grounds 2 and 3.

2. [131]

   There is a clear body of authority at the appellate level both in this State and Victoria that in sentencing for terrorist offences, the significance of punishment, deterrence and protection of the community means that mitigating factors such as youth and prospects of rehabilitation are given less weight.

3. [132]

   In Lodhi Price J in approving the approach taken by the sentencing judge in that case made the following remarks at [274]:

4. [133]

   The remarks made by Spigelman CJ were cited with approval by this Court in R v Elomar [2014] NSWCCA 303 at [703].

5. [134]

   In MHK the Court after citing what was said by Spigelman CJ and Price J in Lodhi in the passages referred to above with approval, made the following remarks:

6. [135]

   In IM v R [2019] NSWCCA 107 Meagher JA, with whom R A Hulme J and Button J agreed, after citing the passages from Lodhi and MHK to which I have referred, made the following statement at [54]:

7. [136]

   The statements made in these cases are not inconsistent with general sentencing principles. In KT McClellan CJ at CL, after pointing out at [22] that in sentencing children, principles of general deterrence and retribution are, in most cases, of less weight than they would be in sentencing an adult for the same offence, went on to point at at [25] that the emphasis given to rehabilitation rather than general deterrence and retribution may be moderated when the young person has conducted himself or herself in a way that an adult might and has committed a crime of violence or considerable gravity: see also Hall J at [102]-[104]; Price J at [132].

8. [137]

   It seems to me that the sentencing judge sentenced in accordance with those general sentencing principles concerning the relevance of youth in sentencing for terrorist offences. As I pointed out at [85] above he stated that he kept in mind statements of principle concerning the relevance of youth in sentencing for terrorist offences and that whilst youth was always relevant, it may be given less weight in light of the seriousness of the offence and the absence of any causal link between the applicant’s age and his criminal conduct. Notwithstanding this, he stated that he had “regard to the youth of the offender”.

9. [138]

   The submissions criticised the sentencing judge for not concluding that there was a causal link between the applicant’s youth and the commission of the offence. At the time that he was radicalised he was 17 years of age and said to be impressionable. I do not think that the fact he was radicalised at the age of 17 leads to the conclusion that there was a causal link between the offence and his youth so as to reduce his moral culpability. It must be remembered that this was a carefully planned terrorist act involving the use of a juvenile to engage in the killing. It was not, as senior counsel for the applicant accepted, an impulsive crime or one which was committed without foresight to its consequences. The fact that the applicant may have acquired the beliefs which motivated the acts whilst a youth, does not ameliorate his moral culpability.

10. [139]

    It follows that Ground 4 and what senior counsel for the applicant described as his core submission has not been made out. No additional submissions were made in respect of Ground 3 and it follows that this ground also has been not made out.

11. [140]

    There remains the contention in Ground 2 that the judge erred in holding that a very strong element of general deterrence was required in sentencing the applicant. The only matters raised by this ground, additional to the matters with which I have already dealt, is that the sentencing judge should have had regard to what was said by Spigelman CJ in the passage to which I have referred at [123] above, namely that deterrence “may, in many cases, be entitled to less weight whenever it appears … that the force of an ideological or religious motivation is such that deterrence is unlikely to work”.

12. [141]

    There are a number of answers to this proposition. First, the weight to be given to any particular matter required to be taken into account is quintessentially a matter for the sentencing judge. Second and related, Spigelman CJ was not seeking to set out any principle of universal application. That is apparent from his use of the word “may” in the passage relied upon (see Lodhi at [87]) and his agreement with the statement by Crockett J in R v Sakr that “[i]f ever there was a case in which the nature of the offence and the circumstances of its commission, called for a deterrent penalty, then this is that case”.

13. [142]

    Third and importantly, the force of the suggestion by Spigelman CJ in Lodhi at [87] has significantly less weight when the person being sentenced is one who aids and abets the commission of a terrorist act, as distinct from the actual perpetrator of the offence (the suicide bomber in Spigelman CJ’s example). I respectfully agree with what was said by the Victorian Court of Appeal on this issue in MHK at [53]:

14. [143]

    In these circumstances, no error was made by the sentencing judge in his consideration of the need for general deterrence.

15. [144]

    It follows that Grounds 2, 3 and 4 of the grounds of appeal have not been made out.

Ground 5 – Failure to take into account the existence of a continuing detention scheme for high risk terrorist offenders

1. [145]

   In his written submissions, senior counsel for the applicant submitted that the Victorian Court of Appeal “came close” to determining this issue adversely to his submission in Director of Public Prosecutions (Cth) v Besim (No 3); Director of Public Prosecutions (Cth) v MHK (a Pseudonym) (No 3) (2017) 52 VR 303; [2017] VSCA 180 but submitted that the Court ultimately did not have to determine the issue. At the hearing, senior counsel for the applicant emphasised that what was said in that case was dicta only.

2. [146]

   Senior counsel for the applicant submitted that the existence of the continuing detention scheme may reduce the need to take into account the protection of the community. He submitted that the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [61] did not “unambiguously exclude as irrelevant the existence of a mechanism outside the sentencing regime” which permitted the assessment of danger to the community to occur at the end of a very long sentence and provided a means to deal with that danger at that point.

3. [147]

   The Director submitted that consistent with Muldrock at [61], the possibility that some other mandatory scheme outside the sentencing regime may exist at the time of expiration of the sentence should not be taken into account.

Consideration

1. [148]

   In Muldrock v R the Court made the following remarks at [61]:

2. [149]

   That statement, which is binding on this Court, applies with equal force to the existing continuing detention scheme for any high risk terrorist offenders which presently exists or may exist in the future. Contrary to the applicant’s submission, it is not ambiguous and should be followed.

3. [150]

   This ground of appeal has not been made out.

Ground 6 – Manifest excess

1. [151]

   The applicant without elaboration stated that a starting point of 52 years prior to the discount for the plea with a non-parole period of 33 years was manifestly excessive.

2. [152]

   The Director submitted that the offence for which the applicant was sentenced carried a maximum penalty of life imprisonment which provides a yardstick against which the sentence falls to be considered.

3. [153]

   The Director also referred to what was said concerning sentencing for these type of offences in MHK at [61] and Lodhi at [79]; [108]-[109]; [274]. She noted that these observations were made in the context of offences relating to acts in preparation for or planning a terrorist act and not involving an actual terrorist act. She also noted that there were few, if any, features which the applicant could call upon in mitigation. She submitted that in those circumstances, the sentence was not manifestly excessive.

4. [154]

   At the hearing, the Director referred to R v Shoma [2019] VSC 367 where the offender committed a terrorist act by attacking the victim while she was a homestay guest at his home. The victim was not killed but seriously injured. The offender received a sentence of 42 years with a non-parole period of 31 years and 6 months. She received a discount for the utilitarian value of her plea, the judge indicating that he would otherwise have sentenced her to 46 years with a non-parole period of 36 years. It should be noted that she was sentenced on the basis that she entered the country with the express purpose of carrying out a terrorist act.

5. [155]

   The Director also referred to R v Khan (No 11) [2019] NSWSC 594 where a mentally ill person was charged with engaging in a terrorist act which involved stabbing a neighbour, with the intention of killing him. He was 22 years of age at the time and received a sentence of 36 years with a non-parole period of 27 years.

Consideration

1. [156]

   The principles on which this ground falls to be considered are well established. They are conveniently summarised by this Court in Hughes v R [2018] NSWCCA 2 at [86]:

2. [157]

   The present case is a very serious example of an offence which carries a maximum penalty of life imprisonment. It involved a carefully planned terrorist act which, unlike many of the offences of this nature, was sadly successful. Acts of this nature designed to cause fear, disruption and instability in the community, as well as serious harm or death to the victim or victims, generally are deserving of severe punishment.

3. [158]

   I have set out the facts and circumstances of the offence above and it is unnecessary to repeat them. The applicant participated in the planning of a terrorist act, obtained a weapon for its commission and if he did not procure a juvenile to commit the act, certainly encouraged him to do so. The result was that an innocent civilian employee of the NSW Police Department was murdered in the furtherance of a cause abhorrent to most right-thinking members of the community.

4. [159]

   As I indicated in dealing with the earlier grounds of appeal, the sentencing judge properly took all relevant matters into account. The sentence in my view, although a stern one, could not be said to be unreasonable or plainly unjust.

5. [160]

   In these circumstances, this ground of appeal has not been made out.

Ground 9 – Section 19AG of the Crimes Act is invalid

1. [161]

   These grounds all relate to the construction and constitutional validity of s 19AG of the Crimes Act. It is convenient to deal with them together.

2. [162]

   Section 19AG is in the following terms:

3. [163]

   In his written submissions, senior counsel for the applicant referred to the statement by the sentencing judge at [297]:

4. [164]

   The applicant submitted that this approach was erroneous.

5. [165]

   Senior counsel for the applicant contended that the sentencing judge should have first determined an appropriate non-parole period, then if it was a non-parole period that is three-quarters of the head sentence or greater than three-quarters of the head sentence, he would be permitted to impose that non-parole period. If the non-parole period was less than three-quarters of the head sentence, he would be prohibited, subject to the other arguments raised in respect of this ground, from imposing that non-parole period.

6. [166]

   Senior counsel for the applicant submitted that the fetter on the Court’s discretion imposed by s 19AG is a fetter on the fixing of the non-parole period so that the Court should first determine the non-parole period and then fix it subject to the statutory fetter.

7. [167]

   The criticism of the sentencing judge’s approach at the hearing was that the judge erred in mechanically fixing the non-parole period rather than determining a non-parole period in his discretion and fixing it subject to the statutory fetter. It was accepted that the argument had no practical consequences.

8. [168]

   So far as Ground 8 was concerned, senior counsel for the applicant pointed to what he described as “the incongruity” which arises when a comparison is made between a life sentence with a minimum non-parole period of 22 years and 6 months and a case where a determinative sentence of 44 years is imposed with the minimum non-parole period being 33 years. He submitted that the anomaly may lead to a person in the position of his client seeking a life sentence as distinct from a determinative sentence.

9. [169]

   Senior counsel for the applicant submitted that the s 19AG(2) should be read by the addition of the words “unless the sentence for the minimum non-parole offence is greater than a sentence of imprisonment for 30 years”.

10. [170]

    In relation to Ground 9, the written submissions filed on behalf of the applicant contended that “the Commonwealth Parliament cannot confer upon a court of a State a function which impairs its institutional integrity and which is therefore incompatible with the role of that court as a repository of federal jurisdiction”.

11. [171]

    In his written submissions, the applicant accepted that “the removal of judicial discretion as a result of mandatory sentencing legislation does not automatically constitute a constitutionally invalid impairment of the institutional integrity of a sentencing court”.

12. [172]

    The applicant in written submissions pointed out that s 19AG did not prescribe a mandatory minimum non-parole period but provided that even where a sentencing court concludes that a non-parole period should in fact be less than three-quarters of the sentence, the court is not permitted to fix that non-parole period but must fix a higher non-parole period determined by the statutory formula.

13. [173]

    The applicant submitted referring to Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 (‘Hili’); that determination of a non-parole period does not depend on an a priori norm. It was submitted that the non-parole period was to be determined in every case by reference to its own facts and circumstances; the period being the minimum period of imprisonment that justice required the applicant to serve. He submitted that “[o]n that analysis, s 19AG compels the court to sentence in accordance with an a priori norm that lacks any coherent relationship with the purpose of a minimum period of imprisonment”. He submitted that “should be regarded as requiring the court to dispense injustice in the constitutional sense”.

14. [174]

    The applicant contended that unless his construction of s 19AG(3) is accepted, then the legislation produces the outcome that where a sentencing court concludes that a sentence of life imprisonment will be too severe, but a determinative sentence greater than 30 years is appropriate, the court must impose a more severe non-parole period than could be imposed if the offender had received a life sentence. He submitted that “s19AG plainly impairs the institutional integrity of a State court exercising federal jurisdiction” as the “court is required to dispense injustice”.

15. [175]

    In her written submissions, the Director contended that the sentencing judge fulfilled the statutory requirement in s 19AG to fix a non-parole period which was at least three-quarters of the head sentence.

16. [176]

    The Director submitted that having determined the head sentence, “the sentencing judge fixed a non-parole period at the minimum level that was required by s 19AG(2)”. She submitted that the discretionary latitude available would have allowed the fixing of a greater non-parole period but the sentencing judge determined that three-quarters of the head sentence was appropriate. The Crown submitted that the approach taken by the sentencing judge was consistent with the approach taken by McLure P in Bahar v R (2011) 214 A Crim R 417; [2011] WASCA 249 at [54] and by this Court in Karim v R; Magaming v R (2013) 83 NSWLR 268; [2013] NSWCCA 23 at [42]-[45].

17. [177]

    At the hearing, the Director emphasised that in the case of a life sentence the sentencing judge was not required to impose a minimum non-parole period of 22 years and 6 months but could impose a greater non-parole period. She submitted that there was no incongruity in the operation of the provision.

18. [178]

    In her written submissions, the Director pointed out that it was not State but Federal legislation The Director submitted that “[t]he correct rule” was that “the legislative power of the Commonwealth does not extend to making a law which requires the courts to exercise judicial power in a manner is inconsistent with the essential character of a court or with the nature of judicial power”: Lim v Minister for Immigration, Local Government and Ethnic Affairs (1982) 176 CLR 1 at 27; [1992] HCA 64 (‘Lim’).

19. [179]

    The Director submitted that s 19AG did not have that effect for the following reasons. First, it was well established that it was not inconsistent with Ch III of the Constitution to provide for a minimum term of imprisonment. Second, a discretion remained to impose a non-parole period higher than the minimum. Third, the High Court decision in Hili, whilst rejecting the existence of a “‘judicially determined norm’ … said nothing about a statutorily mandated sentencing norm”. She submitted that the contrary conclusion was reached in Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 at [105]-[107]. She submitted that “the fixing of a minimum non-parole period, like the fixing of a maximum sentence, is a legislative setting of sentencing norms reflecting the seriousness of the offence to the community”.

20. [180]

    The Director also emphasised referring to Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 at [8], that the non-parole period is not the period at the end of which the person is to be released but rather, the period before which, having regard to the interests of justice, he or she cannot be released. She submitted that it said nothing about whether the person will actually be released on parole at the expiration of that minimum term.

Consideration

1. [181]

   It should be noted that the applicant did not suggest that the sentencing judge should have first determined the non-parole period and then fixed the head sentence by reference to the non-parole period so determined. As Price J pointed out in Lodhi at [258] that proposition would be “contrary to sentencing principle”: see also Bahar v R at [54]; Karim v R; Magaming v R at [42]-[45].

2. [182]

   Rather, the applicant contended that after fixing the head sentence, the sentencing judge should have then determined the appropriate non-parole period, fixed the non-parole period so determined if he concluded the ratio of the non-parole period to the total sentence should be three-quarters or higher and fix it at three-quarters if he determined the ratio should be less than that percentage. As senior counsel for the applicant properly conceded, it would have no practical consequences in the present case.

3. [183]

   The sentencing judge was clearly aware of the provisions of s 19AG (see [88]-[91] above). There is nothing to suggest that he proceeded on the basis that it was not open to him to fix a ratio greater than three-quarters if he considered it appropriate to do so. Ground 7 has not been made out.

4. [184]

   Ground 8 relates directly to the construction of s 19AG.

5. [185]

   The obligation to fix a minimum non-parole period is in s 19AG(2). It must be emphasised that the period is a minimum non-parole period, it does not preclude the Court from fixing a greater non-parole period.

6. [186]

   Section 19AG(3)(a) applies for the purpose of s 19AG(2). Although perhaps infelicitously worded, the section requires a court which imposes a life sentence to impose at least the minimum non-parole period prescribed by s 19AG(3) which as a matter of mathematics is 22 years and 6 months. It does not prevent a greater non-parole period being fixed.

7. [187]

   There are sensible reasons for such a provision. The actual effect of a life sentence may well depend on the age or health of a person on whom it is imposed. The ratio in s 19AG(3) gives a court flexibility to take account of such circumstances in fixing the non-parole period.

8. [188]

   There is an incongruity. The section does allow the Court in fixing a life sentence to impose a minimum non-parole period which is less than that required to be imposed for a determinate sentence greater than 30 years. However, this potential incongruity does not affect what, in my view, is the clear meaning and effect of the provision. Further, the imposition of a life sentence simply for the purpose of attracting the minimum non-parole period of 22 and a half years would be an error of sentencing discretion.

9. [189]

   Ground 8 is not made out.

10. [190]

    In relation to Ground 9, the Director, in my opinion, was correct in stating that in the case of Federal legislation, the question is whether the challenged section exceeds the legislative power of the Commonwealth as it imposes on a court obligations “inconsistent with the essential character of a court or with the nature of judicial power”: Lim at 27.

11. [191]

    It is well established and not in dispute in the present case that the Parliament has the power to impose mandatory minimum sentences: Palling v Corfield (1970) 123 CLR 52 at 58; [1970] HCA 53: Magaming v The Queen at [27], [47]. If this is correct, it is difficult to see how the imposition of a minimum non-parole period or, for that matter, a provision that no period of parole is permitted, infringes the principle laid down in Lim.

12. [192]

    The argument supporting invalidity was based upon the statements in Hili that in the case of Commonwealth sentencing, the determination of a non-parole period does not depend on an a priori norm. The remarks in Hili were in reference to a so-called “judicially determined norm” having as was said in that case at [37] as no “statutory root”. The statement said nothing about the introduction of a statutory norm providing the minimum period of a sentence that an offender must serve in prison.

13. [193]

    A legislative fetter on a court’s discretion of this nature is not constitutionally invalid as being inconsistent with “the essential character of a court or with the nature of judicial power”. That was made clear in the following passage from the judgment of Keane J in Magaming v The Queen at [103]-[106]:

14. [194]

    I do not think the incongruity to which I referred at [188] above affects the position. As I have indicated, the function of the Court is to determine the head sentence and determine the non-parole period having regard to the statutory fetter. If a non-parole period greater than the statutory minimum is thought appropriate in respect of the life sentence imposed, that should be set, otherwise it is necessary to set the statutory minimum. There is nothing incompatible with the exercise of judicial power for a court to carry out its functions in this manner.

15. [195]

    It follows that this ground of appeal has not been made out.

Conclusion

1. [196]

   As no error has been demonstrated, leave to appeal should be granted but the appeal dismissed. It is unnecessary to deal with the evidence led on the basis that it would be considered if the Court came to resentence.

2. [197]

   In the result, I would make the following orders:

   1. (1)

      Grant the applicant leave to appeal.

   2. (2)

      Appeal dismissed.

3. [198]

   PRICE J: I agree with the reasons of Bathurst CJ and the orders that the Chief Justice proposes. I wish to add a few observations with respect to Ground 6 as I have had the benefit of reading the draft judgment of N Adams J where her Honour reaches the conclusion that the sentence imposed is manifestly excessive.

4. [199]

   In rejecting Grounds 2, 3 and 4, the Chief Justice has referred to various authorities that have emphasised the importance of the need to protect society and general deterrence for terrorist related offences. The reasoning in cases such as MHK (see [134] and [142] above) is clearly appropriate. A terrorist attack when successfully implemented can result in the deaths and serious injuries to many innocent persons. One only has to consider the death and destruction caused by the truck driver in Nice on 19 August 2016 or by the gunman in Christchurch on 15 March 2019. The potential for such terrible consequences will not usually be the case in a single count of murder.

5. [200]

   I agree with the Chief Justice that the sentence is a severe one but it is not manifestly excessive.

6. [201]

   N ADAMS J: I have had the advantage of reading the judgment of Bathurst CJ in draft. I agree with his Honour that Grounds 1 – 5 and 7 – 8 have not been made out for the reasons provided by his Honour. That is, I agree that no error has been established in relation to Johnson J’s findings regarding the appellant’s prospects of rehabilitation, the significance of general and specific deterrence, the existence of a continuing detention order scheme or the fixing of a non-parole period given the terms of s 19AG of the Crimes Act 1914 (Cth).

7. [202]

   As for Ground 9, I also agree with Bathurst CJ that the applicant has failed to establish that s 19AG of the Crimes Act) is invalid. As his Honour notes at [188], the provision clearly creates an incongruity. If Johnson J had imposed a life sentence on the applicant, he would have had the statutory power to fix a non-parole period as low as 22 years and six months’ imprisonment, whereas his Honour had no such statutory power in circumstances where he imposed a determinate sentence greater than 30 years imprisonment. Despite this, I am nonetheless satisfied, for the reasons provided by Bathurst CJ, that this significant incongruity does not render the provision invalid.

8. [203]

   The remaining ground is Ground 6, in which the applicant contends that his sentence is manifestly excessive. Having considered this ground at some length, I am satisfied that it has been made out. My reasons for this are as follows.

9. [204]

   Under Ground 6 the applicant contends that, even if no patent error (such as those identified under the other grounds of appeal) is established, the sentencing judge’s discretion miscarried nonetheless and the sentence is “unreasonable” or “plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. As Bathurst CJ has observed at [151] above, the applicant’s submissions in support of Ground 6 went no further than a bare submission that a starting point of 52 years imprisonment is too high.

10. [205]

    In arriving at a starting point of 52 years imprisonment, Johnson J made a “value judgment” as to the appropriate sentence given all the factors of the case: see McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], confirmed by the Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26].

11. [206]

    There can be no doubt that the offender’s criminality was very high. To categorise it simply as the provision of a weapon to the offender who murdered Curtis Cheng does not give full effect to the facts upon which he came to be sentenced. Rather, his criminality in aiding and abetting the terrorist act of murdering Mr Cheng involved a number of actions, as set out by Bathurst CJ at [12] to [46]. The findings of Johnson J as to the objective gravity of the offence and applicant’s moral culpability are set out at [190] –[191] of his Reasons as follows:

12. [207]

    No challenge was made in this Court to the finding by his Honour that the offence occupies “a very high level of objective gravity”, nor to his Honour’s finding that the applicant’s moral culpability was “close to if not at the same level as the principal offender”.

13. [208]

    Nor did the applicant present any particular mitigating circumstances to the sentencing judge besides his youth (which has less significance in terrorism offences) and his plea of guilty (which afforded him a discount of 15%). The applicant had a criminal record, showed no remorse, expressed happiness after watching a recording of the shooting, was deeply radicalised at the time and continued to be at the time of his sentence. One particularly chilling aspect of the evidence before the sentencing judge was a telephone recording of the applicant’s mother and brother trying to persuade the applicant to be remorseful just prior to his sentencing proceedings but, despite his mother’s obvious distress, he replied that he had “no regrets”.

14. [209]

    His Honour was clearly required to reflect all of these matters in the sentence imposed. Despite this, I find myself unable to accept that a starting point of 52 years’ imprisonment for this one offence committed by a (barely) 18-year-old man does not disclose error in the exercise of the sentencing discretion.

15. [210]

    This is the first case in which the offence of aiding and abetting a terrorist act has been charged and led to a conviction and the first time an offence of committing a terrorist act has come before a court for sentencing in Australia. In the absence of any previous decisions concerning this offence, Johnson J was provided with a schedule of sentencing cases for other terrorism offences. As his Honour noted at [282]:

16. [211]

    His Honour went on at [283] to observe the following in relation to those decisions:

17. [212]

    His Honour’s observation is clearly correct. None of the cases to which his Honour was referred involved a death.

18. [213]

    The maximum penalty for an offence under s 101.1 of the Criminal Code (Cth) is a life sentence. It is of significance that although the Commonwealth DPP contended before the sentencing judge that “a substantial period of imprisonment is the only appropriate sentence in the circumstances”, it was never contended that this was a matter calling for a life sentence. This position taken by the Commonwealth DPP before Johnson J indicates an implicit acceptance that this offence did not fall into the “worst category” of offending. As the High Court (Bell, Gageler, Keane, Nettle and Gordon JJ in a joint judgment) said in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [18]:

19. [214]

    My determination of Ground 6 has led me to consider whether, as a matter of general principle, a determinate sentence for an offence carrying a life sentence can ever be so high that it runs the risk of appearing to equate to a sentence reserved for the “worst category” of the offence, even though a life sentence is not imposed. Although technically there is no limit to the length of a determinate sentence when the maximum penalty is a life sentence, as a matter of principle it seems to me that must be some point at which such a determinate sentence will just become so numerically high that it suggests error.

20. [215]

    There are a number of offences in New South Wales which carry a life sentence. The Judicial Commission Statistics published through the Judicial Information Research System (“JIRS”) disclose the sentences imposed for offences which carry a life sentence. These sentences include sexual offences (such as ss 66A, 66EA and 61JAA of the Crimes Act 1900 (NSW)) and certain drug offences in the Drug Misuse and Trafficking Act 1985 (NSW) where the quantities involved exceed the large commercial quantity. The JIRS statistics reveal that no life sentence was imposed for any of these sexual offences or drug offences during the relevant JIRS period of January 2008 to 23 September 2018 (post-Muldrock). That is not to say that very high sentences have not been imposed for sex offenders in recent times. On the contrary. But the very high sentences imposed on sex offenders are invariably the result of the fact that the sentences are being imposed for a large number of offences and/or victims rather than for any one serious offence.

21. [216]

    Ultimately, the JIRS statistics reveal that the only offence in NSW which carries a life sentence and for which a life sentence and very high sentences have been imposed for a single offence is murder: 19A of the Crimes Act 1900 (NSW).

22. [217]

    The JIRS statistics show that in the period from January 2008 to 23 September 2018 (post-Muldrock), ten persons were sentenced to life imprisonment for murder. Putting those ten offenders to one side, out of the remaining 250 offenders the highest sentence imposed for murder during that same period, short of life imprisonment (post-Muldrock), following a plea of guilty was 45 years imprisonment with a non-parole period of 30 years. This same sentence was imposed in relation to two unrelated matters. By cross referencing those statistics with the actual decisions it can be seen that those sentences were imposed in R v Corrie Loveridge; R v AB [2013] NSWSC 1591 and R v Stani-Reginald [2013] NSWSC 56. Having read those decisions I am satisfied that neither of these cases assist in assessing the highest determinate sentence imposed for murder in the relevant JIRS period as in both of these cases the offenders were also being sentenced for other very serious offences and the totality principle was applicable.

23. [218]

    The JIRS Statistics show that for a plea of not guilty, the highest determinate sentence imposed for a murder during the relevant JIRS period was also 45 years, with a non-parole period of 33 years and 9 months: R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774. That case concerned five shooting incidents that took place in the context of “differences” within the “Brothers for Life”. Again, the three offenders were convicted of multiple offences, with the first offender sentenced for 15 different offences, the second offender sentenced for 17 different offences and the third offender sentenced for 18 offences.

24. [219]

    After further analysis, I am satisfied that the highest determinate murder sentences imposed between January 2008 and 23 September 2018 on an offender not being sentenced for any other offence and who pleaded not guilty was 44 years imprisonment. This same sentence was imposed on two unrelated offenders following trial. In R v LN; R v AW (No. 10) [2017] NSWSC 1387 the mother and stepfather of a three year old child were convicted of the child’s murder at trial. The child’s death followed prolonged abuse of the child. The mother LN received a non-parole period of 33 years with a head sentence of 44 years imprisonment. The other offender to receive a head sentence of 44 years’ imprisonment following a trial was R v Droudis (No. 16) [2017] NSWSC 20. That offender stood to be sentenced for the planned murder of her boyfriend’s ex-wife (and mother of his two young children) by inflicting multiple stab wounds to her and then dousing her with petrol and setting her alight. A notice of intention to appeal has been lodged in relation to that conviction and sentence.

25. [220]

    The highest murder sentence imposed between January 2008 and 23 September 2018 on a person not being sentenced for any other offence and who pleaded guilty was in R v Milat & Klein [2012] NSWSC 634. That case involved the murder of a teenager on his 17th birthday in the Belanglo State Forest. The murder was pre-planned, the victim had begged for his life before his death, and the offence had been filmed. It was accepted that the murder was a "thrill kill". The offender Milat was 40 days short of his 18th birthday at the time of the murder and Klein was three months older. Milat received a sentence of imprisonment of 43 years with a non-parole period of 30 years. His appeal to this court against the severity of that sentence was dismissed. The offender Klein received a sentence of 32 years with a non-parole period of 22 years which was reduced on appeal to 27 years with a non-parole period of 20 years: Milat v R; Klein v R [2014] NSWCCA 29.

26. [221]

    It is often said in this Court that although the Judicial Commission statistics provide a “check” by which a court can assess a particular sentence, they are a “blunt tool” for assessing whether or not a sentence is manifestly excessive. This is clearly the case, although in circumstances where I have been able to identify the details of the actual murder cases from the relevant decisions that criticism has less force. In any event, the statistics show that the non-parole period imposed on the applicant was the highest imposed on any offender for a single offence in New South Wales for the ten year period covered by the JIRS statistics: 2008 to 2018. Furthermore, the applicant’s head sentence was the equal highest with Ms Droudis, who pleaded not guilty. That is, when the 15% discount the applicant received is applied to Ms Droudis’ sentence, the applicant has received a higher non-parole period and higher head sentence than any offender sentenced for a single offence of murder in NSW in the last ten years. That also means that he received the highest determinate sentence for any offender for a single offence in New South Wales during that period.

27. [222]

    I wish to make it clear that I am not suggesting that all offences which carry a maximum penalty are comparable. Obviously they are not. The sexual assault and drug offences are clearly in a different category and I have not had regard to them as any sort of yardstick. But in seeking to determine whether a starting point of 52 years (but for the plea of guilty) for aiding and abetting a “terrorist murder”, is manifestly excessive, the fact that the sentence imposed on the applicant exceeds any murder sentence short of a life sentence during the relevant JIRS period has to have some relevance.

28. [223]

    I have had regard to all of the relevant factors and have come to the view that a starting point of 52 years is just too high. In this respect I adopt the observations of Payne JA and Button J (Schmidt J in dissent) in Conte v R [2018] NSWCCA 209 at [9] when their Honours were also considering a contention of manifest excess:

29. [224]

    For these reasons I am satisfied that the sentence imposed is manifestly excessive. In circumstances where the other two judges would dismiss this ground, I do not propose to undertake the exercise of re-sentencing the applicant. I took the same course in Tran v R [2018] NSWCCA 220 and note that a similar course was followed by Garling J in Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208 at [69]-[70].