Ghazzawy v R (Cth)

HOEBEN CJ at CL:

An offence contrary to s 101.5(1) of the Code carries a maximum penalty of 15 years imprisonment. On 8 May 2017, Bellew J sentenced the applicant to imprisonment for 8 years and 6 months, commencing 15 December 2015 and expiring 14 June 2024. His Honour set a non-parole period of 6 years and 4 months, commencing 15 December 2015 and expiring 14 April 2022. In determining the sentence, his Honour applied a discount of 15 per cent for the applicant’s plea of guilty.

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the sentence imposed upon him by Bellew J in the Supreme Court on 8 May 2017 on the following grounds:

The applicant’s application for leave to appeal is out of time and the applicant relies on an affidavit of Mr Stephen Eccleshall, a solicitor employed by the NSW Legal Aid Commission, to explain the background to the appeal and the delay.

There was no objection raised by the Crown to leave being granted to the applicant to appeal against sentence out of time and in due course the Court will make that order.

A statement of facts was tendered, without objection, in the sentence proceedings and its contents were not disputed. It asserted that the applicant had adhered to a religious ideology of violent jihad, specifically, Wahhabi-Salafism that inspires ISIS (the Islamic State of Iraq and Syria), Al-Qaeda and like-minded groups and their supporters.

The facts before the sentencing judge were that on 8 May 2014 the Joint Counter Terrorism Group Team (JCTT) commenced an investigation (Operation Appleby) to inquire into allegations that a group was conspiring to commit a terrorist act. The statement of facts identified a number of other persons, collectively referred to as the “Khalid group” in reference to its lead member, Sulayman Khalid. Sulayman Khalid, Jibryl Almaouie and the young person, IM, pleaded guilty to a charge of conspiring to do acts in preparation for a terrorist offence pursuant to s 101.6 (1) of the Criminal Code. The offence provided for a maximum sentence of life imprisonment.

Farhad Said, Mohamed Almaouie and the applicant each pleaded guilty to a charge of knowingly making a document connected with the preparation for a terrorist act.

Khalid’s mobile phone had been monitored by authorities between 7 November 2014 and 24 December 2014. The phone records demonstrated that Khalid was in regular contact with other members of the group. With the exception of Farhad Said, all of the telecommunications services used by members of the Khalid group (including the applicant) were subscribed in either false names or in the names of other family members (as in the applicant’s case). The intercepted material demonstrated coded and guarded conversations that related to planning a domestic terrorist attack and attempts to avoid detection by police.

Khalid organized a number of meetings with other members of the group at his home at Regents Park. During December 2014, and immediately leading up to the morning of 18 December 2014, members of the Khalid group met regularly there. During these meetings, members wrote out various documents outlining their plans for a terrorist attack.

On 18 December 2014, the JCTT executed a search warrant at Khalid's home and the homes of the other offenders. During the search of Khalid's home, a total of six handwritten documents that outlined plans to commit an act of terrorism were located. Two of those documents (located in Khalid’s bedroom inside a backpack and black suitcase) contained writing by the applicant. Khalid returned to the house during the search. He stated to police that he owned the suitcase, that he used the backpack, and while he did not write the notes, he had read them. He stated that just because he had read them did not mean that he was going to carry out the acts described.

During a search of the co-offender Almaouie’s residence, three firearms were seized as well as ammunition, a black flag with Arabic writing, a black shirt with Islamic text, head-scarfs, a book titled “SAS Survival Guide” and notes referring to weapons.

During a search of the residence of the co-offender IM, police seized mobile phones containing pictures of IM taken on 6 December 2014 with his uncle’s firearms, two bullets, various CDs and documents containing extremist jihadi propaganda in the form of lectures and nasheeds (chanting in Arabic often with religious and violent messages).

Forensic fingerprint and handwriting examination revealed the fingerprints of the applicant on one of the documents seized from Khalid’s property and his handwriting on three of the documents. In essence, the documents outlined different methods for the commission of one or more acts of terrorism. These included attacks against the AFP Building in Parramatta or the City, which were described as “a good target”, “attacking the dogs, Gorilla (sic) Warfare [style]” from the Blue Mountains as a means to achieve martyrdom and an attack on Lithgow Gaol, again, to achieve martyrdom.

On 10 December 2015, the applicant, Almaouie, Khalid and IM were arrested and charged. They declined to participate in an interview. Said was arrested and charged on 26 May 2016.

The statement of facts included copies of the documents made by the applicant. The three offending documents in the applicant’s case contained the following (with the applicant’s contribution underlined and in bold):

5. Document 3, Item I372 (the “AFP Building” Document), with other parts written by Farhad SAID, a conspirator named in related proceedings:

In order to understand the documents, the following definitions are of assistance:

Several issues were argued during the sentence hearing. The first was the objective seriousness of the offence. The second was the extent to which this Court could find that the applicant had renounced his previously held extremist beliefs and thirdly, the closely connected issue of his prospects of rehabilitation.

The Crown submitted that the key considerations on sentence for a person charged with a terrorism offence were: protection of the community; the punishment of the offender; the denunciation of the offence and general deterrence. Consequently, issues of rehabilitation played a minor role and, generally speaking, the subjective circumstances of the offender should be given less weight than would otherwise be the case.

With respect to factors to be taken into account when assessing the objective seriousness of the offence, the Crown set out what were described as eight key considerations:

In regard to the first issue, the applicant’s submissions were that the objective seriousness of the offending should take into account that the three documents which underpinned the charge only contained 143 words “couched in the language of possibility”. To the extent that the statement of facts made reference to the activities and statements of the other persons with whom the applicant had originally been charged, and with whom he associated at or about the time of the offending, the applicant emphasised the need to ensure that the objective seriousness of the single offence to which he had pleaded guilty was determined by reference to his actions, and not by reference to the actions of others, or the actions of a particular group as a whole.

The applicant submitted that the offending behaviour should not be treated as a feasible written plan for a terrorist act, the documents did not demonstrate a high range of culpability and while there was a connection with a prospective terrorist act, there was little connection with the actual preparation for one. It was submitted that the applicant’s “overall culpability was below mid-range.”

With respect to the second issue, the Crown submitted that where an offender had not established that he or she had resiled from a previously held religious and/or ideological motivation, the element of community protection will assume even greater importance. This was a matter which was reflected in the second area of dispute. As the applicant did not give evidence at his sentence hearing, the resolution of this issue turned on the extent to which the Court could rely on the statements contained in the report of Ms Anna Robilliard, a psychologist retained on behalf of the applicant.

Relying on R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353, the Crown submitted that in the absence of sworn evidence from the applicant, the Court would not be satisfied that he had renounced his commitment to violent jihad and terrorism.

The applicant submitted that at the time of the offence, he was “immature” and “stupid” but had wanted to be part of the Khalid group to show others in the group that he was strong and not weak. In making these submissions, the applicant relied on the statements attributed to him in the report of Ms Robilliard.

The applicant submitted that in his case there was a low likelihood of recidivism. This submission was based on the fact that between the date of the offence on 17-18 December 2014 and his arrest on 10 December 2015, there was no evidence of the applicant being involved in any extremist activity and he did not possess any extremist material. The applicant also relied on his marriage and that during that period he “showed no signs of being radical or violent”.

Relevant to this appeal, his Honour said at [58]-[61] in his sentence judgment:

With respect to the question of objective seriousness, his Honour at [46] accepted the Crown’s submission that in sentencing for offending of this kind, the predominant considerations include the protection of the community, punishment, the denunciation of the offence and general deterrence. His Honour rejected the applicant’s submission that the offence was “below mid-range,” stating at [56] that the offence was of “considerable objective gravity, falling at a level substantially higher than that which was submitted”.

With respect to the question of the weight to be given to the applicant’s unsworn and untested statements to Ms Robilliard, his Honour at [35]-[39] referred to the key authorities on the question of the reliance a court may place on the untested statement of an offender contained in a third party’s report: R v Elomar & Ors (2010) 264 ALR 759 at [162]; [2010] NSWSC 10; Elomar & Ors v R (2014) 300 FLR 323 at [815]-[818]; [2014] NSWCCA 303; R v Benbrika (2009) 222 FLR 433 at [148]-[151]; [2009] VSC 21 and Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 at [586]-[587].

His Honour’s conclusions were as stated at [42] to [43]:

With respect to objective seriousness his Honour at [44] referred to R v Khazaal [2009] NSWSC 1015 and at [45] to R v Kahar & Ors [2016] 1 WLR 3156; [2016] EWCA Crim 568 as supporting his conclusion at [46] that the protection of the community, punishment of the offender, denunciation of the offence and general deterrence were the predominant considerations. His Honour then stated at [47]-[48]:

Later in his sentence judgment, his Honour said at [53] - [55]:

In Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4, the Court of Criminal Appeal (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ) held:

It follows from that analysis that Ground of Appeal 1 has been made out. Justice Bellew’s understandable omission in not expressly taking into account the applicant’s entitlement to a discount for the utilitarian value of his guilty plea brings the matter within the type of error identified in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 being a “failure to take into account a material consideration” when determining the relevant sentence.

For completeness, it ought also be noted that the Crown accepted that there was an error in the commencement date of the sentence and that the correct commencement date was 10 December 2015. Accordingly, Ground of Appeal 2 has also been made out.

By way of further background, regard should be had to the recent decision of this Court in Bae v R [2020] NSWCCA 35 where Johnson J (with whom Bell P and Walton J agreed) restated the relevant principles to be applied when assessing the utilitarian value of a plea of guilty. Particular regard was had by the Court to the decision of R v Robert Borkowski [2009] NSWCCA 102 where the leading judgment was given by Howie J (with whom McClellan CJ at CL and Simpson J agreed) as follows:

Johnson J in Bae v R confirmed the continuing relevance of R v Robert Borkowski when his Honour said:

It follows from that analysis that it is necessary for the applicant to be re-sentenced and in doing so, this Court will exercise its own independent discretion. This is in line what was said in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

It should also be noted that in the re-exercise of the sentencing discretion, regard has to be had to what has occurred since the applicant was originally sentenced. Information concerning those matters is set out in the affidavit of Stephen Eccleshall of 8 October 2020. That affidavit confirmed that the applicant has been in custody since 10 December 2015 and was moved to the High Risk Management Correctional Centre (HRMCC) at Goulburn on 21 December 2015. He has remained there ever since. The only change is that recently his designation has been reduced from “Extreme High Risk Restricted (EHRR) to Extreme High Security (EHS). That still involves significant restrictions but not as extensive as had been his situation until recently.

He has been disciplined on three occasions for breaches of rules but otherwise there has been no significant criticism of his behaviour while in custody. These three instances of misconduct did not prevent his classification being reduced to that of EHS.

Attached to the affidavit as Exhibit D is a psychological report, dated 16 April 2020, which was prepared at the request of the Correctional Centre.

The applicant told the psychologist about his increasing commitment to Islam which commenced at the age of 18. He told the psychologist that it was in Ramadan of that year that he became “more dedicated” and started praying. He engaged in this activity through what was described as “self directed learning”. He told the psychologist of becoming increasingly connected to another group of friends who shared grievances such as passport confiscations with each other.

When asked by the psychologist why he engaged in a particular episode of disobedience, i.e. refusing to return to his cell, the applicant said that this was a reaction to what he regarded as “unfair and abusive treatment from officers” and that “if they leave us alone we will leave them alone”. The comment made by the psychologist was “Mr Ghazzawy provided some insight into the function of his behaviour but appeared to justify his actions in the context of increased frustrations”.

Because of the applicant’s history of no reported violence while in custody, he was not given the full Violence Risk Scale (VRS) test but what was described as the “screening version of the VRS”. He was reported as having obtained an overall score of 4.1, which indicated a “low risk of future violent offending”.

In relation to “risk promoting indicators”, the psychologist reported as follows:

In reaching a conclusion, the psychologist reported:

As can be seen from the comprehensive psychological report, there appear to have been some rather shallow improvements in the applicant’s demeanour and beliefs. Generally speaking he has behaved himself in custody. Nevertheless, I share the concerns of the psychologist as to whether there has been any real change to the applicant’s beliefs and his approach to life and religion. Given that one of the most important factors to be taken into account when sentencing for a terrorist offence is the protection of the community, I am not satisfied that there has been any significant change in the applicant’s beliefs. It follows that the matters of concern to the sentencing judge continue to be matters of concern, i.e. the perception that Islam was under attack and a sense of grievance which continues to affect and influence him.

In relation to what allowance should be made for the utilitarian value of the plea of guilty, regard can only be had to objective benefits which have been brought about by the plea. Subjective matters such as remorse are irrelevant to such an assessment. On the positive side, it is accepted that the plea was at an early point in time, although not at the earliest point. In addition, the plea of guilty saved the community the cost of a substantial trial. On the negative side, is the fact that negotiations had been taking place for a considerable period of time in relation to the charge to be faced by the applicant with his legal advisors trying to get the best result for him. Since the timing of a plea of guilty is such an important consideration when considering its utilitarian value, the longer the delay before a plea is entered, the lower the discount to be awarded.

Accordingly, applying the principles set out in R v Robert Borkowski and which were endorsed in Bae v R I would assess the utilitarian value of the plea of guilty at 17.5 per cent.

In relation to the re-exercise of the sentencing discretion by this Court, no challenge was made in the appeal to any of the factual findings by the sentencing judge. What was challenged was the finding that the objective seriousness of the offending, as assessed by the sentencing judge, was excessive, that it should be assessed at below the midrange and that this should be the approach followed by this Court when making that assessment. The applicant relied upon the same arguments before this Court as were relied upon at first instance, i.e. that only 143 words were involved, there was nil distribution of the documents, there was no planning or research or sophistication involved in the language used and the offending alleged in the indictment occurred over two days.

As this Court has said on many occasions, the assessment of the objective seriousness of an offence is very much a discretionary matter (Mulato v Regina [2006] NSWCCA 282).

My independent exercise of discretion when assessing the objective seriousness of the offence is very much in line with the conclusions arrived at by the sentencing judge. This is particularly so when regard is had to the purpose of the statements, the subjects of the charge. These, it seems to me, were largely used as a rallying cry to encourage the Khalid group to engage in terroristic activities on a large and significant scale so that even if the members of the group were killed and suffered martyrdom, they would have achieved something “great”.

In relation to other matters which were not challenged on re-sentence, my reasons are very much in line with those of the sentencing judge and in my independent exercise of the sentencing discretion, I would assess their importance and significance in the same way.

For the reasons already set out, I am not persuaded that the applicant has to any significant extent modified the views which he held and that he remains a threat to the community. I base that conclusion on the assessment of the psychologist who assessed the applicant in April 2020.

Nevertheless, the applicant has been successful in his appeal and in accordance with the increased discount for the plea of guilty, he will have to be re-sentenced. Accordingly, the orders which I propose are:

HARRISON J: I agree with Hoeben CJ at CL.

IERACE J: I also agree with Hoeben CJ at CL.