R v Lawrence

1. [1]

   HIS HONOUR: On 12 August 2023, Tukiterangi Lawrence (the offender) pleaded guilty to a count that between about 6 June 2019 and 1 October 2019 he did acts in preparation for, or planning, a terrorist act or acts, contrary to s 101.6(1) of the Criminal Code Act 1995 (Cth) (the indictment offence). It is a “rolled up” count which encompasses the following two particulars, which I will refer to as “Particular (a)” and “Particular (b)”, that he:

2. [2]

   The maximum penalty for the offence is life imprisonment: s 101.6(1) of the Criminal Code.

3. [3]

   For the purposes of s 16BA of the Crimes Act 1914 (Cth), the offender also admitted his guilt to an offence, which is to be taken into account in his sentence. That offence, which predates the indictment offence, is that between about 30 November 2018 and about 18 March 2019, he intentionally advocated the doing of a terrorist act or the commission of a terrorism offence referred to in s 80.2C(2) of the Criminal Code, being reckless as to whether another person will engage in a terrorist act or commit a terrorism offence referred to in s 80.2C(2) of the Criminal Code, contrary to s 80.2C(1) of the Criminal Code (the advocating terrorism offence). The maximum penalty for that offence is 5 years imprisonment.

The offender’s status at the time of and following the offences

1. [4]

   The offender is presently aged 27. At the time of the advocating terrorism offence, he was aged 22 and was in the community serving the parole component of an aggregate sentence of imprisonment for two offences: demanding property by force in company with intent to steal and being armed with intent to commit an indictable offence (the demanding property and armed with intent offences). His parole was revoked on 17 March 2019 and he was returned to custody the following day to serve the balance of his parole, which was a period of 5 months and 5 days, which expired on 21 August 2019. On 30 July 2019, the offender was sentenced for a count of stalk/intimidate in a domestic context to 18 months’ imprisonment, to commence on that date and conclude on 29 January 2021, with a non-parole period of 9 months, to expire on 29 April 2020. Following a severity appeal in the District Court, the offender was sentenced on 25 March 2020, for two counts of intimidate police officer in the execution of their duty to 18 months’ imprisonment, to commence on 29 January 2020 and expire on 28 July 2021, with a non-parole period of 9 months, to expire on 28 October 2020.

2. [5]

   At the time of the indictment offence, that is, between about 6 June 2019 and 24 June 2019 and between about 3 September 2019 and about 1 October 2019, the offender was aged 22 and 23 respectively and was an inmate in the Goulburn High Risk Management Correctional Centre (HRMCC). He was charged with the indictment offence (at that stage, it was two separate offences) on 18 February 2021 and bail refused. On 27 November 2021, the offender suffered a catastrophic spinal cord injury whilst in detention which rendered him a tetraplegic. He was granted bail in the Supreme Court on 7 April 2022. On 3 May 2022, Bellew J revoked an interim detention order that had been made on 21 August 2019 and made an interim supervision order in respect of the offender, who was released from custody the following day (4 May 2022). On 3 August 2022, Lonergan J made an extended supervision order (ESO) for a period of 3 years, to date from 4 August 2022.

3. [6]

   On 27 January 2023, the offender was arrested for breaching his bail conditions and three counts of breaching the conditions of the ESO. His bail was revoked the following day and he has remained in custody since then, at the Long Bay Hospital Correctional Centre (the Long Bay Hospital). On 19 July 2023, he was sentenced for four breaches of the ESO and an offence of intentionally distributing an intimate image without consent, for which he received an aggregate sentence of imprisonment of 2 years, to date from 27 January 2023 and conclude on 26 January 2025, with a non-parole period of 12 months, concluding on 26 January 2024.

The agreed facts

1. [7]

   A statement of agreed facts was tendered by the Crown at the sentence hearing which is to the following effect. The entirety of the agreed facts as to the relevant conduct for each offence is not summarised in this judgment.

2. [8]

   When the offender was aged about 14 or 15, he converted to Islam. At the time of the offending, he described himself as a Salafi-Jihadist. [1] He adhered to a fundamentalist interpretation of Islam, an aspect of which was that Muslims were obliged by their religion to undertake violent jihad, which included participation in a violent offensive struggle to promote Salafi-Jihadi ideology globally, and thus including Australia. The act or acts in planning or preparation for a terrorist act(s), was or were done with the intention of advancing violent jihad through the plans that were the subject of the indictment offence.

3. [9]

   Islamic State was a Salafi-Jihadi organisation that instructed its followers that they had a religious duty to travel to territory associated with it or, if that was not possible, to attack unbelievers in their own countries. It is a proscribed terrorist organisation.

4. [10]

   The agreed facts of the offences are summarised in the order in which they were committed, so that the first is the advocating terrorism offence (between about 30 November 2018 and about 18 March 2019). A summary of the offender’s conduct in respect of the advocating terrorism offence, as itemised in the agreed facts, is as follows:

5. [11]

   The offender used a particular Apple phone (the black phone) and had three “Apple IDs”. He was active on WhatsApp and Facebook. Located on the black phone were four images he had taken of himself between December 2017 and February 2018, in which he is standing and facing the camera. In the first image, dated 15 December 2017, he is using a gesture widely recognised as a symbol of support for Islamic State. In the second image, taken on 16 January 2018, he is wearing a t-shirt bearing the words “Muslim Brotherhood” with an image of two crossed rifles that appear similar to AK-47 assault rifles. In the third and fourth images, taken on 14 and 19 February 2018, he is wearing a t-shirt bearing the words “Al-Shabaab” with a silhouette underneath of a rifle similar to an AK-47. Al-Shabaab means “the boys” or “the youth” in Arabic. It is also a Somali-based jihadist group that was a listed terrorist group.

6. [12]

   On 22 February 2018, the offender was arrested for the offences of demanding property and being armed with intent and was refused bail. On 8 March 2018, [5] he received an aggregate sentence for those offences of 18 months’ imprisonment backdated to commence on 22 February 2018, with a non-parole period of 6 months which would expire on 21 August 2018. On 21 August 2018, the offender was released to parole and an officer of Community Corrections (his CCO officer) commenced his supervision.

7. [13]

   Following his release, the offender resumed using his black phone to search for and download content related to his beliefs. On 3 October 2018, he searched online the words “jihad muslim sunni wouts [sic]” and took a screenshot of the flag of Islamic State.

8. [14]

   On 3 December 2018, the offender captured multiple images of quotes by Anwar Al-Awlaki superimposed upon images of him. Mr Al-Awlaki was a Yemeni-American cleric who preached Salafi propaganda. In late 2009, he pledged loyalty to Nasr al-Wuhayshi, who was the leader of al-Qa‘ida in the Arabian Peninsula, and overtly or covertly encouraged those who wished to undertake terrorist activities against western targets. Mr al-Wuhayshi became a “specially designated global terrorist” on 16 July 2010 and was killed in September 2011 in a US drone strike.

9. [15]

   A photograph of the offender wearing a t-shirt bearing the words “Al-Shabaab”, together with an image of a rifle resembling an AK-47, was later located in the black phone with a date of 15 December 2018.

10. [16]

    On 16 January 2019, during a parole interview with his CCO officer, he stated that he was studying to become a sheik, that he had Salafi beliefs and described Salaf as being “middle ground”. He stated that he did not support violence.

11. [17]

    On 23 January 2019, in a further interview with his CCO officer, the offender stated that corrections staff would think the course he was studying was extreme, but he did not think so; he desired revenge and justice and agreed with the idea of an “eye for an eye”, but struggled to reconcile this with the principle of forgiveness in Islam; he believed in Sharia law, although this could only be implemented in a country where it was supported.

12. [18]

    Located in the black phone were two screenshots of YouTube videos dated 1 February 2019. One, titled “The fall of Islamic State”, depicted multiple males brandishing firearms, with the caption “to fight for its declared domain”. The other, titled “Enforcing Sharia in Raqqa: The Islamic State”, depicted males brandishing firearms, a sword and the Islamic State flag.

13. [19]

    On 27 February 2019, the offender participated in an interview with his CCO officer, in which he stated that he was committed to Sharia law but would abide by the law of the land. He stated if he stole, he would chop off his hand if he was in an Islamic state, which “doesn’t exist”. He described himself as a “Jihad Salifesi”.

14. [20]

    The evidence that establishes the offence constitutes exchanges on social media platforms and other forms of communication to promote and encourage the doing of a terrorist act or the commission of a terrorism offence.

15. [21]

    On 30 November 2018, in a WhatsApp conversation with contact “Hamzah El Salih”, the offender stated:

16. [22]

    When cautioned by Hamzah El Salih to “[k]eep the intention and cause in your heart, at least until the time arises. Don’t bring suspicion to yourself”, he replied:

17. [23]

    On 28 December 2018, the offender had an exchange with Tamer Muhammad via WhatsApp, in which they discussed the implementation of an “Islamic society”. The offender said:

18. [24]

    On 4 January 2019, the offender wrote the following in the “Notes” section of the black phone and sent it to Tamer Muhammad:

19. [25]

    On 12 January 2019, the offender posted under his Facebook account “Hamza Lawrence”, an image of a male, overlaid with the words: “We are Muslim you kill us you rape us you invade our lands when we fight back you call us terrorists”.

20. [26]

    On the same date, the offender sent a WhatsApp message to a contact named “Bro”, in which he quoted passages from the Qur’an with a particular commentary that stated it was obligatory “to fight in Jihad against the evil of the enemy who transgress against Islam”, promising “full rewards” in the “Hereafter”. Other parts counselled against patience with non-believers, affirming that instead they should “fight and kill the idolators wherever you may find them”. The passage was of considerable length and quite specific as to the need to kill non-believers.

21. [27]

    On 23 January 2019, in a WhatsApp exchange with Tamer Muhammad, the offender said:

22. [28]

    On 24 January 2019, in a WhatsApp text exchange with “Hamzah El Salih”, the offender observed that jihad must be practised globally and must be part of the life of a true Muslim.

23. [29]

    On 26 January 2019, the offender posted on his Facebook account “Hamza Lawrence” a complaint that “brothers and sisters” are being attacked overseas and, quoting from the Qur’an:

24. [30]

    On the same date, in an exchange with Mohamed Hawchar, the offender said:

25. [31]

    On 27 January 2019, in a WhatsApp exchange with Tamer Muhammad, the offender quoted passages from a book written by Yusuf al-’Uyari, [8] which was the subject of a speech by Anwar al-Awlaki, that called for continuous armed jihad on the part of Muslims until the “Day of Judgment”.

26. [32]

    In another exchange with Tamer Muhammad on the same day, the offender related passages from a book he was reading that advocated the killing of various groups of non-believers.

27. [33]

    On 28 and 29 January 2019, the offender posted on his “Hamza Lawrence” account references to books he was reading, concerning Jihad. On 29 January 2019, he sent messages to Tamer Muhammad referencing particular chapters of one of the books. One chapter was titled: “The virtues of killing a non-believer for the sake of Allah”.

28. [34]

    On 4 February 2019, the offender sent screenshots to Tamer Muhammad of multiple sections of the publication “The Terrorist’s Handbook”, including chapters concerning the manufacture of explosives.

29. [35]

    On 11 February 2019, the offender posted on his Facebook account “Hamza Lawrence” that he had decided to “save a little bit of money and then do Hijra [9] for the sake of Allah”, meaning that he wanted to join Islamic State.

30. [36]

    On 8 March 2019, the offender texted his wife, stating:

31. [37]

    The message prompted this exchange with his wife the following day:

32. [38]

    In fact, the police had not frozen his bank accounts or otherwise blocked his access to his funds.

33. [39]

    On 16 March 2019, in a post on Facebook, the offender declared that:

34. [40]

    As noted, on 17 March 2019, the offender’s parole was revoked and he was arrested the following day and returned to custody. The black phone was seized and found to contain a total of 166 videos by eight different advocates of Islamic extremist violence.

The indictment offence

1. [41]

   In relation to Particular (a), the offender’s conduct is summarised in the agreed facts as follows:

2. [42]

   On 22 March 2019, the offender was transported to Silverwater MRCC. In a recorded phone call on the afternoon of 27 March 2019 with his wife, the offender said that he had converted someone to Islam earlier that day and that “I’m going to get all the boys for a meeting tomorrow and I’m going to get them to all pray in the yard for now to have unity in the unit you know, stand together”.

3. [43]

   On 29 March 2019, in a recorded phone conversation with his wife, the offender said he was struggling to cope in “the pod”, he was scared of being stabbed and was thinking of putting himself “on segro”. His wife advised him against that, saying that he would not “handle it”. He continued:

4. [44]

   On 8 April 2019, in the course of a conversation with his cellmate that was recorded, the offender said:

5. [45]

   On 10 April 2019, in the course of a conversation with his cellmate, the offender said:

6. [46]

   And later that day:

7. [47]

   On 11 April 2019, in the course of a conversation with his cellmate, the offender said:

8. [48]

   Later the same date, the offender referred to a forthcoming parole hearing and said: “Well if they keep me in for terrorism I may as well just become it. You know what I mean?”

9. [49]

   On 17 April 2019, the offender was transferred to the Goulburn Correctional Centre. Pursuant to a surveillance device warrant, a listening device was installed in his cell, which captured conversations with his cellmate in which he explained his belief in an extreme Salafi-Jihadi interpretation of Islam.

10. [50]

    On 6 May 2019, the offender said:

11. [51]

    On 7 May 2019, in the course of a conversation with his cellmate, the offender said:

12. [52]

    On 8 May 2019, in the course of a conversation with his cellmate, the offender said:

13. [53]

    On 8 May and again on 12 May 2019, the offender watched videos that were apparently on a USB stick that they possessed that were released by Islamic State. They were grossly violent, showing Islamic State fighters torturing and executing soldiers. The offender repeatedly expressed delight at what he saw.

14. [54]

    Later on 8 May, the offender referred to himself as “the lion of Allah”. He said that “I was blessed to come to gaol because of what I believed in and I haven't … fully lived up to that name yet, no”.

15. [55]

    On 9 May 2019, the offender said to his cellmate:

16. [56]

    On 12 May 2019, after watching Islamic State videos, the offender said:

17. [57]

    On 15 May 2019, the offender, referring to Corrective Services officers, said to his cellmate:

18. [58]

    On 20 May 2019, the offender said to his cellmate:

19. [59]

    On 6 June 2019, the offender was moved within Goulburn Correctional Centre into the HRMCC, into a cell alongside a prisoner who had converted to Islam (Witness A). In about June 2019, the offender complained to Witness A that corrections officers were “kufr” and were oppressing Muslims and had stopped him contacting his wife and children.

20. [60]

    The offender arranged with Witness A to collect a letter that the offender had left for him. According to the agreed facts: “The letter contained religious information about dying as a martyr for Allah. Witness A then returned the letter, at the Offender’s request”. About a week later, the offender told Witness A that he had a list of the names and ranks of Corrective Services officers, that he had obtained from his brief of evidence, who had been involved in placing him in the HRMCC. The agreed facts state:

21. [61]

    On 1 October 2019, during a search of his cell, apparently by Australian Federal Police (AFP), the offender said “Don’t worry, I’ll have all your addresses soon, just wait” and looked in the direction of an AFP officer. He also said, “I’ll slit your fucking throats!” As he was being restrained by NSW Corrective Services officers, he said: “I’ve got no problems with you, it’s these fucking dogs”. AFP officers took that to mean that the offender did not have a problem with NSW Corrective Services but that he did not like Police. As noted, as a result of this incident, he was convicted of two counts of intimidate police officer in the execution of their duty and sentenced to imprisonment for 18 months, with a non-parole period of 9 months.

22. [62]

    The offender’s conduct in relation to Particular (b) is summarised thus:

23. [63]

    In September 2019, one of the offender’s cellmates was Isaac El Matari. The agreed facts are as follows:

24. [64]

    On 20 September 2019, along with Mr El Matari’s letter, Correctional Services officers seized two Compact Discs (CDs). The content of one CD included a handbook on camouflage, combat and survival, a publication titled “Transnational Terrorism: The Threat to Australia”, the text of a speech by Osama Bin Laden declaring war on the USA and the text of a speech by Shaykh Usaamah in Laaden. The content of the other CD included terrorism or jihad-related texts.

25. [65]

    The contents of Mr El Matari’s letter included the following:

26. [66]

    Mr El Matari offered to link the offender with key figures in Islamic State in various locations in the Middle East and elsewhere and to facilitate the purchase of “false documents ranging from degrees to passports”, weaponry, including explosives and suicide vests.

27. [67]

    In his reply, the offender wrote:

28. [68]

    Another document seized from the offender’s cell on 1 October 2019 was a sheet of paper that included drawings of a person being shot in the head with a pistol and having their throat cut with a curved-blade sword. Another document seized at the same time had references to his release date and the note:

29. [69]

    The agreed facts have a summary of the offender’s statements during an interview by police that was conducted on 18 February 2021, which I relate in its entirety:

30. [70]

    The offender was charged with the indictment offence on 18 February 2021.

The offender’s spinal cord injury suffered on 27 November 2021

1. [71]

   On 27 November 2021, while still an inmate at the HRMCC, the offender and seven fellow inmates refused to be locked into their cells. According to a Correctional Services case note report of that date, “force and chemical munitions” were used to ensure compliance. The offender suffered a spinal cord injury and was initially taken to Goulburn Base Hospital. He was later transferred to the Prince of Wales Hospital for treatment, including surgery. He was subsequently diagnosed as being a tetraplegic.

Subsequent charges for breaching his ESO

1. [72]

   As noted earlier, on 4 May 2022, the offender was released on bail and subject to an ESO. On 26 January 2023, a police officer attached to the High Risk Terrorist Offenders Unit seized a mobile phone that had been in the offender’s possession at about that time. In a statement tendered by the Crown, Federal Agent Detective Sergeant Joel Williams (FA Williams) stated that he downloaded and examined its contents. He located 123,822 images, an extensive web history, 2,057 documents, 1,192 videos and 856 audio files. FA Williams prepared a report that contained samples of the material, which he produced as an annex of his statement. The imagery included images of Islamic State victims about to be beheaded, firearms, AFP officers, the Sydney headquarters of the AFP and Corrective Services staff. The report included a description of 25 images that were too violent to reproduce. The documents on the phone included articles about terrorist attacks in Australia. The videos included speeches and interviews extolling violent jihad, a video of a pistol in the cabin of a vehicle that is fitted with a silencer and a video of mutilated bodies, as well as videos of the offender speaking to camera (presumably filming himself on his phone), on topics that included an explanation of terrorist attacks in the West being motivated by attacks on Muslims in their homelands. The documents included one titled “The Al Qaeda Manual” and other publications extolling violent jihad, publications concerning weapons and a book about Goulburn jail. Web searches made on the phone included searches of terrorist attacks in Australia. Audio files included multiple speeches by Anwar Al-Awlaki.

The offender’s current circumstances

1. [73]

   The offender is presently an inmate in the Long Bay Hospital. According to a statement of the Manager of Security of the Long Bay Hospital, he is accommodated alone but in a “two-out” cell; [18] he is subject to a segregation order (a Section 10 order [19] ) that requires him to be in a “one-out” cell. Due to his medical condition, placing him alone in a double cell allows easier access for staff and room to perform tasks such as lifting him. [20] As to his current conditions of incarceration, the Manager stated:

2. [74]

   The Manager states that the offender will remain in the Long Bay Hospital if he receives a full-time custodial sentence. A statement by the manager of Countering Violent Extremism programs (the CVE manager) refers to the offender’s eligibility for those programs. One that they administer is known as the Proactive Assessment and Intervention Service (PRAXIS), which she described as “an enhanced case management model, and not a program with a formal start and end date”. Its staff includes a service manager, senior psychologists and religious support. She stated:

3. [75]

   The offender is subject to a non-association order (PRNA) due to his high security rating and National Security Interest (NSI). [21] A briefing note dated 12 May 2023 records five adverse reports concerning the offender’s behaviour in the Long Bay Hospital, which led to a recommendation to maintain the PRNA. One is as follows:

4. [76]

   According to Corrective Services records, the only approved visitor that the offender has is his sister, who has telephone contact with him. Contact with his wife and mother has not been approved. He has been disciplined for unlawfully using a phone and supplying false or misleading particulars (3 April 2023) and communicating with a restricted associate (31 May 2023).

Material tendered by the offender

1. [77]

   The material includes a psychologist’s report dated 28 April 2004, that is, when the offender was aged 7 (the 2004 psychologist’s report). It noted that the offender and his sister, who is a year older than him, were placed into their maternal grandparents’ care when the offender was aged 9 months, “due to neglect, chronic ongoing drug use and domestic violence”. A trial return to the parents’ home in 1998, on the understanding that the father would not be there, resulted in concerns as to their mother’s drug use and the offender’s father being there and fracturing the offender’s arm (his humerus); the offender was aged 2 at the time. The children were returned to the care of their maternal grandparents. The grandparents separated in 2000 and the children were cared for by their grandfather. In 2002, the children’s grandfather informed the authorities that he could no long care for them. They were transferred to the care of their grandmother and her new partner, but were removed in 2003 following allegations of sexual abuse made against the partner, and placed in departmental care.

2. [78]

   The report noted that the offender had serious behavioural issues, including impaired social functioning, self-blame for the domestic violence he had received and witnessed, low self-esteem and issues with pornography and adult sexual acts. He was noted to derive considerable support from his sister.

3. [79]

   A second childhood psychological report by Charlie Gangemi, dated 14 November 2011, when the offender was aged 15, was also tendered. He noted that the offender had 13 placements by then, four with family members and the balance with foster carers. The offender was separated from his sister in 2004.

4. [80]

   A cognitive assessment in May 2005 by a school counsellor, using the Wechsler Scale for Children-Third Edition (WISC-III) yielded scores that placed the offender in “the mild range of intellectual functioning with a significant difference between his verbal and non verbal score”, which indicated the possibility of “learning difficulties and visual difficulties”. Mr Gangemi administered the WISC-IV to the offender, which placed him in the “extremely low” range. He concluded:

5. [81]

   A report by Dr Kerri Eagle, who is a forensic psychiatrist, dated 14 July 2023, was tendered by the offender. It is extensive in its consideration of the material that has been otherwise tendered on sentence, the history she obtained from the offender and her assessment. Dr Eagle excluded a mental illness, stating:

6. [82]

   Dr Eagle diagnosed the offender as having the symptoms of

7. [83]

   Dr Eagle is of the opinion that the offender satisfies diagnostic criteria for an antisocial personality disorder:

8. [84]

   Dr Eagle also diagnosed the offender as having a substance use disorder (in remission) and considered the childhood testing of the offender’s intellectual functioning:

9. [85]

   Dr Eagle considered the extent to which her diagnoses assisted an understanding of the offender’s criminal behaviour:

10. [86]

    Dr Eagle noted from records provided to her that the offender had deliberately self-harmed and had suicidal ideation from 2005, at the age of 8 to 9 years old. As to his childhood generally, she said:

11. [87]

    Dr Eagle considered the impact of the offender’s mental condition and spinal cord injury on his experience of imprisonment:

12. [88]

    As to his prospects of rehabilitation, Dr Eagle noted the offender’s willingness to participate in therapy and adopt a pro-social lifestyle, but cautioned:

13. [89]

    A report by Dr Susan Rutkowski, a spinal cord injury specialist, was tendered. Dr Rutkowski examined the offender on 9 May 2023 at the Long Bay Hospital. She has provided a detailed account of the complex daily care needs of the offender, and his future needs for his medical management and surgery. Dr Rutkowski noted that the offender has elevated risks of developing multiple conditions as he ages, including bladder and kidney stones and consequent bladder infections, pressure injuries requiring plastic surgery, post-traumatic syringomyelia (a cyst enlargement in the spinal cord), shoulder overuse degenerative disease, osteoporotic fractures that may result in joint replacements, type II diabetes, obstructive sleep apnoea, gall bladder disease and significant cardiovascular disease.

14. [90]

    Dr Rutkowski also noted that there is significant long-term morbidity associated with spinal cord injury. She noted that, statistically, the offender could expect to live until the age of about 67 years with a spinal cord injury if he lived in the community, although she expected that his life expectancy would be “somewhat better than average” because of the nature of his injury. However, in custody he would not receive the individualised care that is necessary to maximise his life expectancy.

15. [91]

    An affidavit by Sarah Hedberg, who is the offender’s solicitor (Ms Hedberg’s affidavit), sets out in more detail the offender’s journey through services provided by Health (principally the Prince of Wales Hospital), Corrective Services and the National Disability Insurance Scheme (the NDIS), following his spinal cord injury. Under the NDIS, Specialist Disability Accommodation (SDA) was set up in the community for him upon his discharge from the Prince of Wales Hospital.

16. [92]

    It is apparent from the discharge summary from Prince of Wales Hospital, dated 19 December 2022, that the offender has multiple complex on-going medical issues that require intensive professional support. It lists seventeen different medications that he is to take, at least once per day.

17. [93]

    Ms Hedberg’s affidavit has annexed to it critical assessments by the NSW Inspector of Custodial Services of the HRMCC at the time that the offender was detained in that facility, including the absence of access to “programs, work or education”, insufficient time for inmates to be out of cells, limited permitted contact visits, minimal communication and interaction with staff and the use of force by staff against inmates (43 times in 2021) in spite of a “low number of assaults” in the same 12 month period.

Relevant sentencing principles

1. [94]

   The sentencing exercise for federal offences is carried out pursuant to Pt 1B of the Crimes Act 1914 (Cth) (the Act) and relevant common law principles.

2. [95]

   It has often been observed that sentencing for a terrorism offence involves different emphases on sentencing factors. In Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360, Price J, Spigelman CJ and Barr J agreeing, stated, at [274]:

3. [96]

   The maximum penalty for the indictment offence is life imprisonment, which I take into account as a sentencing guidepost. I note that, in the words of Whealy J in R v Elomar [2010] NSWSC 10 at [79], cited with approval in Elomar v R [2014] NSWCCA 303, at [641]:

Sentence considerations

1. [97]

   In relation to Particular (a), the offender’s objective was to discover where certain Corrective Services officers lived in order to target them with serious violence, either by Witness A or himself upon his release from prison. Presumably the offender wanted Witness A to do the scouting because he was less likely to attract the attention of the Corrective Services officers in question. Although the plan did not progress beyond the offender’s initial approach to Witness A, it was a serious attempt to lay the groundwork for a violent attack upon those officers.

2. [98]

   As to Particular (b), Mr El Matari’s letter constituted a broad-brush proposal for how human resources would be deployed in preparing for, and carrying out, terrorist attacks in Australia. The offender’s written response indicated his agreement with the letter’s contents and a desire to be a part of it. I note, however, that there is no evidence that Mr El Matari’s letter or the offender’s response were intended to be disseminated.

3. [99]

   The offender submits that the objective seriousness of the offence fell “well below the middle of the range and towards the lower end”. In my view, having regard to the approach to Witness A not being pursued and the limited nature of the offender’s response to Mr El Matari’s letter, the seriousness of the rolled-up offence, having regard to both of its aspects, I would characterise as well below the mid-range of objective seriousness for offences of this type. As noted, Witness A was unpersuaded and was not further pursued by the offender. Mr El Matari’s letter and the offender’s response lacked any specificity, although it reflected a general commitment to violent jihad in Australia and a declaration by Mr El Matari that he had the means to equip perpetrators, the capacity for which was to be further developed along the lines foreshadowed in his letter.

4. [100]

   As to the advocating terrorism offence, the offender accepts that he was reckless as to whether another person reading his messages, posts or other communications would engage in a terrorist act. In my view, it falls in the mid-range of objective seriousness. The offender’s advocacy involved various electronic communications with multiple recipients over a period of three and a half months. It was passionate and determined.

5. [101]

   There is no evidence of remorse, contrition or insight by the offender into the wrongfulness of his behaviour, although there is a degree of understanding of the pathway that led him to the offences in this passage from Dr Eagle’s report:

6. [102]

   I am not satisfied on the balance of probabilities that the offender has resiled from his belief system of violent jihad, which underscores a need for the sentence to reflect the protection of the community: Lodhi per Spigelman CJ at [88].

7. [103]

   The offender is entitled to the utilitarian benefit of his plea of guilty to be taken into account: Xiao v R (2018) NSWLR 1; [2018] NSWCCA 4. A trial was set down to commence on 2 February 2023, in relation to a count that is now constituted by Particular (b) of the indictment offence and the advocating terrorism offence. In January 2023, the offender was alerted to the prospect of a further charge involving what is now Particular (a) of the indictment offence. That sparked negotiations between the parties that resulted in a plea of guilty being entered to the indictment offence, and the advocating terrorism offence being taken into account pursuant to s 16BA of the Act. It follows that the plea was entered at the first opportunity in respect of Particular (a) and late in relation to Particular (b). I propose to allow a discount of 25 per cent from his sentence, which is a quantum that I note the offender sought and that the Crown did not oppose, on the basis that the trial, had it proceeded, had an estimate of 8 weeks duration.

8. [104]

   There is an obvious need for general deterrence and retribution for an offence of this type. As to specific deterrence, although the offender will be confined to a wheelchair or at best a walking frame, in my view his post-spinal cord injury offending demonstrates that the need for specific deterrence to be reflected in the sentence for this offence has not evaporated and, indeed, is undiminished, subject to considerations of the offender’s moral culpability.

9. [105]

   The context material establishes that at the time of his offending behaviour, the offender held a deep conviction of principles of violent jihad, as he understood them. The catastrophic nature of his spinal cord injury left open the possibility that it might have prompted him to re-assess that adherence. Regrettably, however, the discovery of the contents of his mobile phone in late January 2023 confirms how entrenched those beliefs are and, more significantly, how little restriction his spinal cord injury had on his capacity and determination to access jihadist material and profess his justification of it.

10. [106]

    The offender was aged in his early twenties at the time of the indictment offence and the advocating terrorism offence. He is now aged 27. However, considerations of youth may be tempered when sentencing for a terrorism offence.

11. [107]

    In Alou v R (2019) 101 NSWLR 319; [2019] NSWCCA 231, Bathurst CJ at [131], Price and N Adams JJ agreeing, observed that there is a clear body of authority that in sentencing for terrorist offences:

12. [108]

    In that case, the sentencing judge had acknowledged that whilst youth was always relevant to the sentencing exercise for a terrorism offence, it may be given less weight in light of the seriousness of the offence and the absence of any causal link between an offender’s age and his criminal conduct. The Chief Justice, at [138], rejected a submission that such a causal link was established by the applicant having been radicalised at 17 years of age and said to be impressionable:

13. [109]

    The offender is not a person of prior good character. As to his antecedents, his first contact with police was when he was 13 years old. He had extensive contact with the criminal justice system from the age of 15. As noted, he was serving the parole period of a prison sentence for a violent offence at the time of the advocating terrorism offence.

14. [110]

    I accept the evidence of Dr Rutkowski and find that, consequent to the offender’s medical needs because of his spinal cord injury, the level of care that he receives in a custodial environment, whether in the Long Bay Hospital or elsewhere in a custodial institution, is not optimal for his already heavily qualified quality of life and for his life expectancy. I take that into account in fixing the offender’s sentence.

15. [111]

    I note Dr Eagle’s view that the offender’s mental afflictions facilitated him being open to persuasion to adopt violent jihad, her observation that the offender’s mental diagnoses are “enduring and pervasive”, his need for therapy to address his “trauma related symptoms and psychological vulnerabilities” and his refusal thus far of available psychological services whilst in custody, because they are “not confidential”.

16. [112]

    Accordingly, I am of the view that the offender’s prospects of rehabilitation are dependent upon his deradicalization, which in turn is dependent upon, initially, his preparedness to accept treatment and therapy for his mental conditions and ultimately, the progress that he makes in that regard if and when he begins that process.

17. [113]

    As reported by the CVE manager, the offender has engaged in the PRAXIS program since September 2022 which, while a positive development, nevertheless was four months before he was found to possess an unapproved mobile phone upon which he breached his bail and ESO conditions by accessing violent jihadist material.

18. [114]

    I also note that the offender appears to have little in the way of community ties and support beyond his sister and the NDIS. Although he has two children, it seems there has been no recent contact with them.

19. [115]

    I conclude that the offender’s road to rehabilitation, if eventually successful, is likely to be long and its success is uncertain. His prospects of rehabilitation, as presently assessed, are poor.

20. [116]

    The offender relies upon the well-known principles enunciated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]-[178], to be considered when sentencing an offender who has a mental illness or mental condition, such as an intellectual disability. I take those principles into account. They warrant a reduction in the offender’s moral culpability, but to be balanced against the extent to which the entrenched nature of his relevant mental conditions mitigate against him accepting treatment and him reconsidering his views on violent jihad.

21. [117]

    The offender submits that his childhood deprivations enliven the principle enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43] so as to reduce his moral culpability. The Crown concedes that it is a relevant consideration.

22. [118]

    I note the 2004 psychologist’s report and the passage from Dr Eagle’s report extracted at [86] above. The terms of the majority (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) in Bugmy, at [43], are apposite:

23. [119]

    I am also mindful that such considerations are not necessarily mitigatory for all of the purposes of punishment: see Bugmy at [44].

24. [120]

    The sentence to be imposed will be backdated to incorporate the period of time following the offender’s arrest on 18 February 2021 that he was detained in the HRMCC. I find that the offender’s conditions of incarceration in the HRMCC were more arduous than in the prison population generally, which warrants a reflection in the sentence to be imposed.

25. [121]

    Mr El Matari was arrested on 2 July 2019 and charged with three offences. The first was contrary to s 101.6(1) of the Criminal Code. The second was contrary to s 119.4(1) of the Criminal Code (preparing to enter Afghanistan via Pakistan with the intention of engaging in hostile activity in a foreign country) and the third was contrary to s 102.3(1) of the Criminal Code (knowingly being a member of a terrorist organisation, namely Islamic State).

26. [122]

    Mr El Matari pleaded guilty to the first two offences and admitted the third offence, on the basis that it would be taken into account on the sentencing for the first offence. He was sentenced by Garling J on 11 October 2021: R v El Matari [2021] NSWSC 1260. His Honour noted, at [21], that the prosecution described the letter that he wrote to the offender as “the most significant fact relied upon by it to demonstrate the extent of the terrorism offence”.

27. [123]

    The sentencing judge found:

28. [124]

    The sentencing judge attributed “some weight” to a letter of apology and other recorded expressions of remorse by Mr El Matari for his offending behaviour, which was tempered by him not having given evidence of that contention. His Honour found that the utilitarian value of the plea was significant, warranting a discount of 25 per cent off the sentence. His Honour was satisfied that Mr El Matari had made some attempts to renounce his violent Islamic extremist views, but was not satisfied that he had made any progress on a path to rehabilitation.

29. [125]

    His Honour handed down an aggregate sentence of 7 years and 4 months, with a non-parole period of 5 years and 6 months. The indicative sentence for the first offence was 4 years and 6 months, after a discount of 25 per cent.

Sentence

1. [126]

   The consequences of the offender’s spinal cord injury in particular, and to a lesser extent the reduction in his moral culpability consequent to his mental health issues and his appalling childhood experiences that inevitably shaped his attitudes and behaviour, render this a difficult sentencing exercise that might reasonably be regarded as unique in the sense that there is little guidance to be derived from comparative sentences and, equally, to be provided by this case. Pursuant to s 17A of the Act, a court shall not pass a sentence of imprisonment on a person for a federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. I am satisfied that a sentence of imprisonment is appropriate. In my view, the starting point for the sentence is 8 years. After reducing the sentence by 25 per cent for the utilitarian value of the offender’s plea of guilty, the sentence to be imposed is 6 years. The non-parole period, fixed consistently with s 19AG of the Act, is a period of 4 years and 6 months.

2. [127]

   As noted, the offender’s exclusive custody in relation to this offence commenced on 18 February 2021 until he was released pursuant to a grant of bail and an ESO on 4 May 2022. That is a period of 1 year, 2 months and 17 days. He returned to custody, upon his arrest for breaching the conditions attached to his ESO, on 27 January 2023. He was again refused bail in relation to this matter on 6 February 2023 which, as of the date of this judgment, is a period of 9 months and 3 days, thus comprising a total period of 1 year, 11 months and 20 days.

3. [128]

   I note that the offender has been serving the sentence that was imposed for the breach of the ESO conditions since 28 January 2023. The Crown concedes that the period that the offender was serving that sentence should be taken into account in its entirety for this sentence as well, and that 75 per cent of the period that the offender was on strict bail conditions and confined by his spinal cord injury, which is another 172 days, should count towards his sentence on the basis that it was quasi custody. I concur with those submissions. I will backdate the commencement of the sentence to 23 May 2021.

4. [129]

   Accordingly, for the offence contrary to s 101.6(1) of the Criminal Code Act 1995 (Cth) and taking into account the offence contrary to s 80.2C(1) of the Criminal Code pursuant to s 16BA of the Crimes Act 1914 (Cth), I sentence the offender to imprisonment for a period of 6 years, backdated to commence on 23 May 2021 and to expire on 22 May 2027, with a non-parole period of 4 years and 6 months, to expire on 22 November 2025.

Explanation to offender

1. [130]

   I am obliged by s 16F of the Act to explain to you, Mr Lawrence, the effect of this sentence. You are sentenced to imprisonment which started on 23 May 2021 for a total term of 6 years of which you must spend at least 4 years and 6 months in custody before being released on parole. Whether you are released on parole is a matter to be determined by the Attorney-General of the Commonwealth of Australia having regard to your progress whilst in custody.

2. [131]

   I am also obliged to warn you, pursuant to s 105A.23 of the Criminal Code, that you may be the subject of an application for an order for your detention or for an extended supervision order at the completion of your term of imprisonment. Such an application may be made before the end of your sentence.