R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said

Sulayman Khalid (“Khalid”), Jibryl Almaouie (“Jibryl”) and a third offender to whom I shall refer as “IM”, have each pleaded guilty to an indictment in the following terms:

That offence is contrary to ss 11.5 and 101.6(1) of the Criminal Code 1995 (Cth) (“the Code”) and carries a maximum penalty of life imprisonment. It should be noted at the outset that the Crown did not submit that a life sentence was warranted in the case of any of these three offenders.

In addition, Jibryl has pleaded guilty to a separate indictment containing the following counts:

Each of counts 1-4 are offences contrary to the Firearms Act 1996 (NSW) (“the FA”) and the respective maximum penalties, are as follows:

At Jibryl’s request, I have also taken into account the following matters contained in a Form 1 all of which were committed on 19 December 2014:

Jibryl’s commission of the various offences contrary to the FA are part of the conspiracy to which he has pleaded guilty. In these circumstances, the Crown and senior counsel for Jibryl agreed that any sentences imposed in respect of those offences should be wholly concurrent with any sentence imposed in respect of the conspiracy. There is some difficulty in giving effect to this agreed position, arising from the fact that Jibryl was taken into custody in respect of the charges contrary to the FA on 23 December 2014. He has remained in custody since that time and accordingly, any sentences imposed for those offences can, and should, be backdated to commence on that day. However, he was not charged with the conspiracy offence until 10 December 2015, almost 12 months later. It is not possible to backdate the sentence for the conspiracy to commence on 23 December 2014 because Jibryl was not, at that time, charged with that offence.

Following the conclusion of the sentence proceedings, the Crown filed written submissions in relation to this issue and suggested that the result which the parties agreed was appropriate could be achieved by:

No submissions were received on behalf of Jibryl which took issue with that approach. I have adopted the Crown’s suggestion of imposing sentences for the offences contrary to the FA first. Whilst those sentences cannot, in the circumstances, be made wholly concurrent with the sentence to be imposed in respect of the conspiracy, I have endeavoured to structure the sentences in a way which imposes a total sentence giving effect to what the parties agree is appropriate.

Mohamed Rashad Al Maouie (“Mohamed”) and Farhad Said (“Said”) have each pleaded guilty to separate indictments in the following terms:

That offence is contrary to s. 101.5(1) of the Code and carries a maximum penalty of 15 years imprisonment.

I heard submissions on behalf of the Crown and each of the offenders on 3, 4, 5 and 6 October 2017, in the course of which the Crown tendered a separate statement of facts in respect of each offender. Some parts of the facts tendered against one offender were common to those tendered against some others. Rather than unnecessarily repeat parts of the facts, I have indicated where this principally arises.

It should also be noted that although the facts were tendered by consent in each case, some specific issues were taken on behalf of Jibryl as to discreet parts of them. I have identified where those issues arose and have expressed by conclusions in relation to them.

I am required to sentence each of the offenders in accordance with Part 1B of the Crimes Act 1914 (Cth) (“the Act”) [1] . There are a number of provisions within that Part to which I should make reference.

Section 16A of the Act provides (inter alia) as follows:

Under s. 17A, I may only impose a term of imprisonment if I am satisfied that this is the only appropriate sentence. I am satisfied that this is the case in respect of each offender.

Section 19AG applies to each of the federal offences to which the respective offenders have pleaded guilty [2] . It requires that I fix a single non-parole period for each of the federal offences which is at least three quarters of the head sentence which is imposed.

In accordance with s. 16F of the Act, I must explain the sentence imposed upon each offender. I must also warn each offender, pursuant to s. 105C of the Code, that an application may be made for a continuing detention order, requiring the offender to be detained after the completion of any such sentence.

As discussed further below, IM is currently 17 years of age and was aged 14 at the time of his offending. He is therefore a “child” within the meaning of s. 20C(1) of the Act which is in the following terms [3] :

The effect of s. 20C(1) of the Act is to allow me to sentence IM having regard to those options for which provision is made in the Children (Criminal Proceedings) Act 1987 (NSW) (“the CCPA”) and the Young Offenders Act 1997 (NSW). However as previously noted, I have come to the view that a term of imprisonment is the only appropriate sentence.

Section 6 of the CCPA sets out a number of principles which must be taken into account when exercising functions under that Act. Senior counsel for IM urged that I have regard to those matters. To the extent that they are relevant to IM, I have done so, although they are essentially a reflection of common law principles governing the sentencing of young offenders which I have discussed further below.

Pursuant to s. 19 of the CCPA, I may make an order directing that that IM serve any term of imprisonment as a juvenile offender beyond the age of 18 years and up to the age of 21 years. To make that order I must be satisfied that there are special circumstances within the meaning of s. 19(4) of the CCPA. Senior counsel for IM submitted that I would be satisfied that there are special circumstances within the meaning of s. 19(4)(b) and/or (c). The Crown made no submissions to the contrary. I am satisfied on the evidence in IM’s case, which I have discussed more fully below, that if he were committed to a correctional centre before turning 21 years of age there would be an unacceptable risk of him suffering physical or psychological harm. I am therefore satisfied that there are special circumstances within the meaning of s. 19(4)(c) of the CCPA allowing me to order that he serve any sentence of imprisonment as a juvenile offender after he has attained the age of 18 years, and up to attaining the age of 21 years. I will give effect to that finding in the orders that I make in IM’s case.

There are obviously individual considerations which impact upon the cases of the respective offenders, both objectively and subjectively. Equally, there are also a number of principles which are of general application to sentencing for offences of this nature. Those principles, which I have applied in determining an appropriate sentence in the case of each offender, may be summarised as follows.

The primary considerations on sentence in matters of this nature are the protection of the community, the punishment of the offender, the denunciation of the offending, and deterrence, both general and specific [4] . Subjective circumstances and mitigating factors, including considerations of rehabilitation, are to be given less weight [5] .

The religious and/or ideological motivation of an offender is relevant to the issue of community protection, as well as to the assessment of the objective seriousness of the offending [6] . Consequently, 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 [7] . As previously noted, weight must be given to the need for general deterrence. This remains so, even if the force of ideological or religious motivations and considerations are such that deterrence may not be effective [8] .

Matters relevant to assessing the objective seriousness of offending of this nature will include:

In light of the charge to which Mohamed and Said have pleaded guilty, the following additional factors are relevant:

I turn to consider the cases of each individual offender.

The following evidence was tendered in Khalid’s sentence proceedings [11] :

The statement of facts tendered by the Crown against Khalid was in the following terms:

The statement of overt acts tendered by the Crown [57] is as follows:

Khalid’s criminal history records a finding of guilt in the Local Court in September 2015 for a charge of stalk/intimidate in respect of which he was given the benefit of a bond under s. 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 12 months [58] . There are no other entries.

The affidavit of Mr Piazza [59] deals with a number of matters which are generally common to all offenders (with the exception of IM, in whose case affidavits from other persons [60] were tendered which go, broadly speaking, to the same issues).

Khalid is held in the High Risk Management Correctional Centre (“HRMCC”) at Goulburn which houses offenders who have been determined to represent a significant risk to the security of both the centre and the wider community, and who therefore require a higher level of supervision than the general prison population [61] . Khalid is currently classified as an AA Extreme High Risk Restricted Inmate [62] . He is permitted legal visits between Wednesday and Sunday of each week. All such visits are “non-contact” [63] , and correctional staff are positioned in the general vicinity of where the visit takes place [64] . A person may only visit an offender of Khalid’s classification if he or she has been approved by the Commissioner. Since being taken into custody Khalid has had a number of visits with relatives. Those too are “non-contact” visits. He currently has five approved personal visitors and one approved psychologist/psychiatrist. He has also had the telephone numbers of various family members approved to allow him to have conversations with them [65] .

Khalid has reached Stage 2 of what Mr Piazza described as his “behaviour management level”. As he progresses through further levels, his privileges will be greater, particularly in terms of access to funds and amenities. The amenities to which he currently has access include basketball courts, running tracks and exercise yards. His ongoing access to those (and other) facilities will be dependent upon the particular behavioural level at which he is assessed at a given time [66] .

It is open to Khalid to access all medical and mental health services offered at HRMCC, irrespective of his classification and designation [67] . The Proactive Integrated Support Model (“PRISM”) has been established to support the rehabilitation of offenders who have expressed certain religious or political views, or who have previously acted in a way that may be considered radical or extreme. The program is managed by a multidisciplinary team which includes a psychologist and a religious co-ordinator. When an offender engages with the program he is required to undergo an assessment of his psychological and social needs, following which a plan is developed to assist him in improving his life. Thus far, Khalid has made no application to enrol in the program [68] . Mr Piazza stated that there is presently no information to suggest that Khalid has renounced any extremist ideology [69] .

Annexed to Mr Piazza’s affidavit were a number of case notes to which I was taken in the course of submissions. A case note of 15 June 2016 prepared by Mohammad Al Halabi made reference to concerns being expressed about Khalid “screeming (sic) in the middle of the night and saying strange things”. Mr Halabi noted that Khalid appeared to be “hostile and very disturbing” and he said that Khalid had indicated to him that he would like to learn more about “Islamic jurisprudence”, something Mr Halabi thought was a positive sign [70] . A further case note of 13 July 2016 prepared by James Poulos made further reference to Khalid’s “keen interest in Islamic juresprudence (sic)” which had apparently given rise to his being monitored on account of what were considered to be his extremist views [71] . The note also made reference to the fact that Khalid had been informed that concerns had been raised by a number of persons with whom he interacted about his “unsettling comments and behaviour” [72] .

A further case note of 3 August 2016 prepared by Vicki Walcott [73] made reference to Khalid expressing an interest in receiving a visit from a Rabbi because he “wanted to learn as much as possible about all things”. A further case note prepared by Ms Walcott on 7 September 2016 made reference to Khalid being visited by the Imam, who reported that Khalid had told him that he (Khalid) was “under pressure by a belief he had a demon in his body directing him to think and act in a manner not comfortable to (him)”, and that he was under “pressure to manage the unwelcome thoughts/voices in his head” [74] . The Imam expressed the view that such a presentation, if left untreated, was capable of leading to “serious mental health or self-harm behaviour”. It was noted that there was a plan to refer Khalid for mental health assessment. The evidence before me is silent on what (if anything) eventuated in that respect.

Having been taken to those case notes, I drew the attention of senior counsel for Khalid to the conclusion expressed by Dr Nielssen (whose report was tendered and relied upon in Khalid’s case), namely that Khalid was not thought to require any specific psychiatric care or counselling. In response, it was submitted that Khalid had deliberately chosen not to give a complete history to Dr Nielssen because he did not want anyone to know of his condition [75] .

Mr Piazza was called to give oral evidence in the sentence proceedings of Mohamed. Whilst some of his evidence touched specifically upon the circumstances of Mohamed’s incarceration, other parts of it were of a more general nature, and applied to the conditions of custody of each of the offenders (again, with the exception of IM). Strictly speaking, Mr Piazza’s oral evidence does not form part of the evidence in the proceedings of any offender other than Mohamed but in the circumstances, and to the extent that it applies generally, I have taken it into account in the cases of each of Khalid, Jibryl, Mohamed and Said.

Mr Piazza explained that Mohamed (and by inference, Khalid, Jibryl and Said) were each housed in a cell measuring approximately 2m x 3m, which had no fresh air and limited exposure to natural light [76] . He said that access to sporting areas is limited to 1 hour at any one time, and must be booked in advance [77] . Mr Piazza explained that the behavioural level reached by an offender will determine the extent of access to personal telephone calls, which must in any event be conducted in English and which are limited to 6 minutes in duration [78] . Family visits are limited to one per week, are “non-contact” (such that the inmate is physically separated from the visitor) and must also be conducted in English [79] . Mr Piazza explained that the PRISM program is available to sentenced offenders, although he said that “technically” this was not so until the final 12 to 18 months of an offender’s sentence [80] .

A list of “lock-ins” [81] was tendered in Khalid’s case setting out occasions on which he had been detained in his cell for periods of up to a full day. Mr Piazza accepted that the list was generally accurate [82] . He also accepted that the frequency of complete lock-ins (i.e. where inmates are detained in their cells for a full day) had increased to up to two times each week. He confirmed that one of the consequences of a lock-in is that all legal visits are cancelled [83] .

On 12 August 2014 Khalid was a member of the audience at a taping of an episode of a program called “Insight”. He was accompanied on that occasion by his solicitor, Ms Burrows. The episode was entitled “Joining the Fight”, and involved a discussion between the compere, Ms Jenny Brockie, and those present regarding the conflicts in Iraq and Syria, and the involvement of Australians in those conflicts. Khalid appeared on the program dressed in a shirt bearing what Ms Brockie described as “the ISIS flag” on the left sleeve. He was addressed by Ms Brockie as “Abu Bakr”.

Before considering what was said by Khalid on that occasion, I should note that senior counsel for Khalid submitted that the circumstances surrounding Khalid’s appearance on the program were unfair because “he had been invited to speak about the fact that his passport had been taken off him [84] , and “in the course of him being there they then asked him about his support for ISIS” [85] . As I understood it, the effect of what was put was that any statements made by Khalid on that occasion should be assessed in that light, and should be afforded limited weight. No evidence was adduced in Khalid’s case about any of the matters to which senior counsel referred. The Crown made it clear that it relied on this footage, not as evidence establishing that Khalid appeared on the program to promote ISIS, but as part of the evidence which established his ideology at the time of the offending [86] .

I have approached and assessed this evidence bearing in mind the purpose for which the Crown relied on it. However I should also make it clear that I am unable to accept the submission that anything said by Khalid on that occasion was said in the context of any underlying unfairness. Leaving aside the absence of evidence to support such a submission, the simple fact is that Khalid was accompanied by his solicitor at the time. Moreover, the footage demonstrates his solicitor periodically intervening, and advising Khalid not to make particular statements, or answer particular questions. One some occasions that advice was heeded by Khalid, and on other occasions it was ignored. It is, to say the least, difficult in those circumstances to make good a submission that statements made by Khalid in the course of the program were somehow tainted by unfairness.

One extract from the footage of the Insight program appears in the statement of facts [87] . However there are other parts of the footage which are also relevant. For example, at an early stage of the program, the following exchange took place between Ms Brockie and Khalid [88] :

At that point, Ms Burrows, Khalid’s solicitor, intervened and said:

The conversation proceeded:

The Crown tendered YouTube footage consisting of 25 separate files on which Khalid appeared [89] , although File 12 was the only footage upon which the Crown relied. It was played in the course of the sentencing hearing. At the request of senior counsel for Khalid I have also had regard to a number of other files, which were not played in the hearing. It was senior counsel’s submission that those other files place, into a proper context, that upon which the Crown relied.

File 25 contains footage entitled “A direct message to the Secret Services – a call to Tawheed” [90] . It depicts Khalid engaging in what might be described as a monologue which he specifically directed to law enforcement, and quasi law enforcement, agencies. Relevant extracts from that footage appear in the statement of facts [91] . I have viewed that footage on several occasions. As I have concluded below, the text of what Khalid said, and his demeanour, were both confronting and threatening. On some of the remaining files to which I was directed by senior counsel for Khalid, the content was more moderate, and Khalid’s demeanour less threatening. Those files contained, by way of example, statements to the following effect:

A number of witnesses were called to give oral evidence in Khalid’s case.

Xiang Qing Jong Meng gave evidence that Khalid had been his neighbour from 2007 to 2013 [95] . He described Khalid as “polite, quiet and nice” [96] . He said that Khalid helped his (i.e. Mr Meng’s) parents by wheeling their rubbish bin and that Khalid had offered to help him to wash his car [97] . He said that “neighbour to neighbour” his relationship with Khalid and his family was “quite good” and that there had been no trouble from anyone in Khalid’s family [98] .

Neil Mercer gave evidence that at the beginning of 2014, when he was a freelance journalist, he had been asked by the NSW Community Relations Commission to become involved in a project concerning young Australian men going to Syria. For that purpose Mr Mercer interviewed a number of people, including Khalid [99] . He spoke to Khalid a number of times between March 2014 and June 2014, including one occasion on which he interviewed him on camera [100] . He described Khalid as “young”, “perhaps angry” and “naïve” [101] . He said that he remembered thinking that Khalid was a “young man with a little bit of knowledge but not a lot” and that Khalid “certainly didn’t strike (him) as sophisticated” [102] .

Abdul Raham Saleh gave evidence that he had known Khalid for about 6 years [103] . Whilst their association stemmed in part from Mr Saleh’s volunteer community work, Khalid had also worked for a period as a labourer in Mr Saleh’s plumbing business [104] . The community work in which Mr Saleh and Khalid had engaged involved the distribution of literature to members of the public in the conduct of what Mr Saleh described as an “Islamic awareness program” which was designed to “educate the general people about Islam, the moderate Islam” [105] . Khalid was involved in the distribution of that literature, a sample of which was tendered [106] . It is not necessary to summarise its contents. Its general nature can be ascertained from the titles, which include “Islam is not a religion of extremism” and “About Islam – a brief introduction”. Mr Saleh explained that Khalid had also assisted him in helping disadvantaged youth, the homeless and other persons who needed assistance [107] .

When asked whether he had ever seen any violent tendencies in Khalid, Mr Saleh emphatically stated that he had not [108] . He also confirmed that between July and December 2014 he was a frequent visitor to Khalid’s home, and said that on none of the occasions on which he visited did Khalid ever speak about violence in terms of Islam [109] . In cross-examination, Mr Saleh told the Crown that in the period of time over which he knew him, Khalid had never spoken to him, at any time, about violent jihad [110] .

Sueha Belani, a primary school teacher, gave evidence via audio-visual link from the United Kingdom. She said that she had known Khalid for a period of about 9 years and that before moving to England in 2012 she had been good friends with him for about 4 to 5 years [111] , although it is apparent that she has had limited contact with Khalid since about 2013 [112] . When asked her opinion of Khalid, Ms Belani said that he was a person for whom she had “so much admiration and respect” [113] , describing him as a “really, really lovely young man” who “wouldn’t hurt a fly” and a person in whom she had never observed any violent tendency [114] . She said that she understood the charge to which Khalid had pleaded guilty and was familiar with at least some of the underlying facts. When asked how those facts fitted with the person that she knew, Ms Belani responded that she “wholeheartedly disagree(d)” that Khalid’s commission of the offence was consistent with his personality in her experience of him [115] . In cross-examination, Ms Belani stated that she was “absolutely” shocked at the charge to which Khalid pleaded guilty [116] . She also said that at no stage had Khalid ever spoken to her about violent jihad [117] .

Maryam Khalid, Khalid’s sister, also gave evidence. She described Khalid as being “the quiet one” in the family [118] and said he was a person who had problems fitting in at school because of “trust issues” [119] . She said that as a youth Khalid was never violent, and never spoke in terms of aggression, hatred or confrontation with others [120] . She said that in 2014 her parents were essentially living separate lives and that this had been the situation, on and off, for many years [121] . She said that her parents’ separation had impacted adversely upon Khalid psychologically [122] . She described him as a person who was “passionate” about helping disadvantaged youth [123] and who was “disappointed, upset, (and) confused” when his passport was cancelled in 2013 [124] . She said that he had never discussed the concept of violent Islam with her and that she had never seen any violent tendency in him [125] .

Ahmad Thaher, Khalid’s cousin, also gave evidence. He described having had a close relationship growing up with Khalid [126] , but said that in more recent years they had had less contact [127] . Mr Thaher said that as a youth Khalid was a “sensitive boy…very soft, very gentle, warm hearted” [128] , and that these attributes led to Khalid being “a little naïve, a little vulnerable and gullible, and easily manipulated” [129] . He described Khalid as a person who was “always very helpful” to others, and who wanted to lead others along the right path to becoming a better person [130] . When asked whether he had ever known Khalid to express aggression, anger or violence towards others, Mr Thaher responded by saying that Khalid “wouldn’t hurt a fly” [131] . He described Khalid’s involvement in the conspiracy as “very surprising” because Khalid’s main purpose was to help people and not harm them [132] .

Zaher El-Cheikh gave evidence that he met Khalid’s father in late 1990, and soon after met Khalid and the remaining members of his family [133] . He described Khalid as a “lovely boy” and “quiet” as a child [134] . He said that as a youth, Khalid was “polite” and “lovely to be around” although Mr El-Cheikh conceded that his primary relationship was with Khalid’s father [135] . Mr El-Cheikh said that he had seen the Insight program and that in a subsequent discussion he had advised Khalid that “this kind of debate should be left” [136] . He said that Khalid had never expressed violence in terms of his (i.e. Khalid’s) perception of Islam, nor had Khalid ever suggested embracing the concept of violent jihad [137] . He described Khalid as a person “who had a passion to call people to Islam” [138] and expressed the view that Khalid had pleaded guilty “out of desperation” [139] .

Finally, Mouminah Khalid, Khalid’s elder sister, gave evidence. She said that on a number of occasions on which she had visited Khalid in custody he had expressed disagreement with the underlying philosophies of ISIS [140] . In cross-examination, she said that Khalid had not previously supported ISIS but that she had understood from him that he thought that ISIS was “helping the people …” [141] .

The report of Dr Nielssen [142] followed two interviews with Khalid in custody on 25 August 2017 and 20 September 2017. In terms of the offending Dr Nielssen reported [143] :

Dr Nielssen said that in the course of the second interview Khalid told him that if he “knew for certainty that an attack was going to take place (he) would inform Danny Mikati” [144] (Mr Mikati was a member of the NSW Police with whom Khalid apparently had some social association). Dr Nielssen then recorded Khalid as saying [145] :

In terms of Khalid’s background, Dr Nielssen recorded that he was the third of six children whose father had come to Australia from Iraq in 1987, whose mother had originated from Sicily, and whose older siblings had worked in a number of varied occupations. Khalid attended Auburn West Public School and Birrong Boys High School to the end of Year 10 but left school to start a TAFE course in landscaping from which he withdrew after a few months. He then worked as a removalist for 8 months, then in a convenience store in the city, and later with Mr Saleh. Khalid told Dr Nielssen that his family were “normal” and “followed the basics of Islam” [146] .

In the course of a mental state examination, Dr Nielssen observed that Khalid did not appear to be especially anxious or depressed and that his concentration was unimpaired. He said that Khalid was a person of average intelligence [147] . Dr Nielssen expressed the view that Khalid did not meet the accepted criteria for the diagnosis of any kind of developmental disorder, acquired brain injury, psychotic illness, severe mood disorder or any other major psychiatric disorder, and that it seemed that Khalid had adjusted to his strict conditions of custody [148] . Dr Nielssen also reported that Khalid had maintained that he was against violence and that he would have intervened to prevent any acts of violence had there been a specific plan [149] . Dr Nielssen concluded by stating [150] :

The statement of Det. Victor set out the circumstances of Khalid’s arrest and search of his premises on 18 December 2014 [151] . Paragraph 23 recorded the following:

It is apparent that the incident to which Khalid was referring when making that statement was the siege at the Lindt Café in Sydney which had occurred only a matter of days before.

The list of “lock-ins” [152] records occasions on which Khalid has been detained in his cell for periods of between half a day and a day between September 2016 and August 2017.

The list of references from the Qur’an was tendered following submissions regarding that part of the YouTube footage upon which the Crown relied [153] . I have dealt with those references further below.

The Crown submitted that the factors set out at [23] and following above were relevant to assessing the objective seriousness of Khalid’s offending. The Crown also emphasised that the gravamen of a conspiracy is the agreement to participate in organised criminal activity, and submitted that the objective seriousness of Khalid’s offending was to be primarily assessed by reference to the criminality of the enterprise of which he, and the other conspirators, had agreed to be a part.

The Crown acknowledged that the period of the conspiracy was a relevant factor. However, it was submitted that even if a conclusion were reached that such period was relatively short, the evidence nonetheless established that there had been a considerable degree of planning in that time. In this regard, the Crown pointed to the content of the documents retained by Khalid at his home, parts of which were expressed in heavily coded language. The Crown also emphasised that Khalid took steps to conceal his involvement in the conspiracy by using coded language in text messages and phone calls, and by using a telephone service which was operated in a name other than his own.

The Crown submitted that Khalid’s offending was “not much less serious than the worst case situation”. It was submitted that Khalid, along with his co-conspirators, had a strong commitment to carry out an act or acts of terrorism as evidenced by the fact that specific acts, and specific targets, were discussed. The Crown further submitted that a matter of critical significance was the fact that the conspirators had acquired firearms and thus had available to them the means to carry out the acts which were being discussed. In this respect, the Crown pointed specifically to Jibryl’s possession of firearms and ammunition, and IM’s sourcing of further firearms for use by the group. It was submitted that this elevated the seriousness of the conspiracy to a significant extent.

Finally, the Crown submitted that Khalid was the leader of the group and in that capacity had given advice to other conspirators, and had organised meetings at his premises. The Crown also pointed to Khalid’s urgings to IM that he not to go to Syria, but that he remain and commit terrorist acts in Australia instead. Equally, the Crown acknowledged that attempting to establish a hierarchy within the conspiracy, in circumstances where each of the conspirators was committed to a common cause and had played a significant role, was of limited assistance in determining the objective seriousness of the offending in each case.

Mr van de Weil QC, on behalf of Khalid, submitted that the evidence did not establish a recognisable plan to commit any terrorist act. He submitted that much of the material relied upon by the Crown to prove the conspiracy had the appearance of being “naïve” and “fanciful”. In this regard, he drew particular attention to the “Blue Mountains” and “Gorilla Warfare” documents, although he did acknowledge that other material such as the “Lithgow Gaol” document was of greater concern.

Senior counsel took specific issue with the Crown’s submission as to the level of objective seriousness of Khalid’s offending. He submitted that the conspiracy amounted to a discussion of a wide spectrum of ideas that fell substantially short of perfecting any plan. He further submitted that the conspiracy was properly regarded as unsophisticated, infantile and seriously undeveloped. He submitted that Khalid’s role was that of a person engaged in discussions with like-minded individuals in circumstances where he was “one … of equals” [154] . He also emphasised that Khalid had access, through Mr Saleh’s business, to items such as gas bottles which could easily be converted to bombs, and that there was no suggestion that Khalid had, at any time, availed himself of such access.

Senior counsel also took particular issue with the proposition that Khalid was properly regarded as the “leader” of the group. He submitted that the evidence established nothing more than the fact than Khalid was a religious advisor to others, and that merely providing a venue for gatherings did not establish that Khalid had any leadership role at all. He submitted that there was no evidence that Khalid had any knowledge of explosives, military tactics, training exercises, or the use of firearms, that he had no access to firearms, and that he was not the author of any of the documents that were found at his premises.

It was further submitted that when viewed as a whole, Khalid’s appearances on the YouTube footage and the Insight program did not promote extremist ideology. It was submitted that this evidence amounted to nothing more than Khalid’s expression of his own religious views, and his exhortations to follow the Islamic faith. Senior counsel described Khalid as “not a very educated man” who “spouts a form a religion as he perceives it” [155] . He submitted, in particular, that many of the statements made on that part of the YouTube footage upon which the Crown relied were generally consistent with the teachings expressed in the Qur’an [156] . He further submitted that I should accept the evidence of the various witnesses called on Khalid’s behalf, and conclude that Khalid was a peace-loving and non-violent man, whose commission of this offence was properly regarded as an aberration.

The Crown emphasised that the offence to which Khalid had pleaded guilty was a conspiracy to do acts in preparation for a terrorist act. It was submitted that in circumstances where some of the documents in question pointed to the killing of police officers and martyrdom attacks on Government buildings, the fact that there was no evidence that Khalid had attempted to obtain possession of items such as gas bottles was of little or no significance.

To the extent that it was submitted that the offending was unsophisticated, the Crown submitted that shooting people with firearms (which was, on the evidence, a part of what was being discussed) did not require a highly developed or highly analytical plan, and that all that was needed was firearms, accompanied by an ability and willingness to shoot people or property. Whilst the Crown accepted that there was no evidence that Khalid had any particular skill or training in the use of firearms, it was submitted that discharging a firearm was not difficult, and that somebody with little training could cause great harm if given access to one. It was submitted that the availability of firearms was of considerable concern, and served to increase Khalid’s objective criminality.

The Crown accepted that the evidence fell short of establishing that any particular target had been selected as the site of an attack. However, the Crown emphasised that the conspiracy obviously involved discussions about possible targets, attacks on which would obviously involve the use of firearms, the destruction of property, and the possible killing of police officers.

Finally, the Crown submitted that the majority (if not all) of those who gave oral evidence in Khalid’s case were obviously completely unaware of his level of adherence to, and the strength of his belief in, violent ideology. The Crown emphasised that almost all of them had given evidence that Khalid had not discussed that issue with them at any time. It was submitted that in light of the evidence, it was obvious that Khalid had kept his extreme views from each of those witnesses. It was submitted that the evidence as a whole did not support the conclusion that Khalid was a person of the peace loving character that each of the witnesses had described. Whilst the Crown accepted that it would be open to me to find that each of those witnesses had done their best to give honest and truthful evidence, it was submitted that it was clear that none of them knew of Khalid’s adherence to violent ideology, and that their various opinions of his character necessarily fell to be assessed in that light.

It is both artificial and contrary to the concept of a conspiracy to attempt to precisely dissect the physical acts of each of the conspirators, and to then sentence each of them for those acts alone. Such an approach amounts to a negation of the complex inter-connection between the various participants, and the organisational nature of a conspiracy. That is not to say that the physical acts of an offender whose sentence is under consideration are irrelevant. However, the fundamental act of any conspirator is that he agreed with the other conspirators, in this case to commit acts in preparation for a terrorist act or acts. Whilst the identification of Khalid’s role (and the role of any other participant) may be relevant and important, the fact of the agreement, and its subject matter, are not to be put aside in favour of concentrating upon his physical acts. It follows that I am not confined to sentencing Khalid on the narrow basis of what he physically did [157] .

The present conspiracy extended over a period of six weeks and that is obviously a relevant factor. In comparison with other cases of this kind, that period might be regarded as short. However, it was nevertheless a substantial period. Moreover, giving primacy to the length of the period of the conspiracy reflects a somewhat artificial approach to the assessment of the nature and circumstances of the offending. It is obviously necessary to consider a number of other factors, including what was actually done in that period.

In the present case, what was done was both significant and wide ranging. Targets were discussed. The methods by which attacks on those targets might be perpetrated were also discussed. Parts of those discussions were reduced to writing in the course of which extremist views were expressed. Numerous firearms, along with a substantial quantity of ammunition, were acquired. It is also relevant that on the evidence before me, the conspiracy ended, not because the conspirators decided to desist, but because the authorities intervened and arrested them.

Moreover, Khalid’s admitted act of being part of that criminal conspiracy was committed against a background of, and was inextricably linked to, an ideology which advocates violence towards people and property, and which extolls the virtues of martyrdom. Khalid’s fundamental adherence to that ideology is evident from, amongst other things, his plea of guilty. The depth of that adherence is informed by a number of other factors.

For example, in his conversations with IM, Khalid repeatedly advocated acts of martyrdom. His statements that he “could not wait” to “reach the garden of Paradise”, and his expressions of a desire that he and IM be permitted to be martyrs together, are self-explanatory.

The various statements made by Khalid on the Insight program many months before his offending are equally telling. They included an unequivocal threat to the Australian Government that “something’s gunna happen here” unless action were taken to remove Australian military forces from Iraq.

Statements made by Khalid on the YouTube footage relied upon by the Crown are even more significant. The tone in which he delivered his “message”, and his general demeanour, were both confronting and threatening. He warned those who chose to reject Islamic teachings that they would “regret it”, and would have their faces “dragged through the pits of hell fire”. His statements also contained what was, in effect, a demand to reject what he described as the “chains and shackles of democracy” in favour of Sharia law, a direct attack on the democratic freedoms that Australian citizens are fortunate to enjoy. What he said cannot be explained, much less excused, on the basis that some of it is said to have been expressed in terms consistent with what appears in the Qur’an. Moreover, his statements on that occasion must be assessed in the context of his having expressly directed them to law enforcement and/or quasi law enforcement agencies, both in Australia and overseas. Even accepting that some of the statements made by Khalid on the other footage advocated more peaceful methods of resolving differences, there can be no doubt whatsoever that at the time of his offending, and for some period prior to that, Khalid had an unwavering devotion to the ideology to which I have referred. His various statements on the YouTube footage make that clear. In making them as he did, Khalid was simply masquerading as a preacher of peaceful religious philosophy.

I accept that the opinions expressed by the various witnesses about what they saw as Khalid’s generally non-violent character were earnestly and honestly given. I also accept that there have been some occasions in the past when Khalid has acted in a manner consistent with what is expected of law abiding members of the community. However, what is significant is that the majority of those witnesses who gave evidence confirmed that Khalid had never discussed with them the subject of violent jihad, in circumstances where the evidence establishes that adherence to violent jihad was part of Khalid’s fundamental philosophy. The witnesses who gave that evidence were clearly unaware of the true facts, and specifically of Khalid’s devotion to violent jihad, he having not discussed it with any of them. Similar observations may be made in respect of the evidence given by Mr Mercer, who saw Khalid as, amongst other things, “unsophisticated”. Even accepting that such opinion was genuinely formed, it remains the case that Khalid’s offending demonstrated, in my view, a not insignificant level of sophistication. In all of these circumstances, I do not accept the submission that Khalid was an otherwise peace-loving member of the community, whose participation in the conspiracy should be viewed as an aberration.

As I have noted, it was also submitted on behalf of Khalid that any plan was undeveloped and imperfect, to the point where there was really no plan at all. It is true that the target of any proposed attack, or the method by which such an attack might be carried out, had not been precisely determined, although such matters had obviously been discussed. However, even accepting that the plan under discussion was undeveloped in that sense, it involved, at the very least, the use of firearms for the purposes of attacking property and people. Moreover, the fact that the plan may have been at an embryonic stage does not mitigate the seriousness of the offending. This Court must respect the legislative policy of the Parliament to create offences where an offender has not decided precisely what he or she intends to do. In doing so, the Court must also recognise the legislative policy that the prevention of terrorism requires that criminal responsibility arise at an earlier stage than is usually the case for other forms of criminal conduct [158] .

It follows that notwithstanding that the conspiracy, and Khalid’s participation in it, did not give rise to any imminent (let alone actual) threat of personal injury or damage to property, a substantial sentence is nevertheless required. It does not follow that merely because the plan may have been in its infancy that the criminal culpability of those involved must be low. The focus must remain upon Khalid’s conduct at the time that the offence was committed [159] . Like all of the participants in the conspiracy, Khalid does not does not stand to be sentenced as though he had committed the acts which were being discussed. However, those acts must necessarily inform the nature and gravity of his offending.

I do not accept the submission that the acts which were being discussed are properly described as naïve or fanciful. Such appellations are not apt to describe:

The fear and concern which these expressions would necessarily instil in any right-thinking member of the community need no further elucidation. It is also to be borne firmly in mind that those expressions were uttered in circumstances where firearms and ammunition had actually been acquired.

I also do not accept the suggestion, inherent in the submissions made on Khalid’s behalf, that the conspiracy was amateurish. There is nothing amateurish about a proposal that firearms be used for the purposes of (inter alia) carrying out a terrorist attack, particularly in circumstances where firearms and ammunition were actually acquired. Such actions reflect a considerable degree of planning as to the method by which such an attack might be carried out. In any event, even the most amateurish and ill-conceived plan has the capacity to cause death to innocent persons, damage to property, and general fear in the community [164] .

The fact that Khalid may have had little or no expertise in firearms is not to the point, for two reasons. Firstly, as the Crown submitted, the discharge of a firearm with the intention of destroying property, or killing or injuring another member of the community, requires little expertise. Secondly, and perhaps more importantly, this is not a case in which the use of firearms was simply discussed as a method by which an attack could be perpetrated. As I have pointed out, it is a case in which firearms and ammunition were actually acquired.

The submissions of the parties debated whether Khalid was properly described as the “leader” of the conspiracy. I have already set out [165] the approach to be taken in sentencing for the offence of conspiracy. There is limited utility in attempting to establish, with absolute precision, a gradated hierarchy amongst the offenders [166] . Adopting terms such as “leader” may be apt to confuse. I am satisfied that Khalid was responsible for the co-ordination of many aspects of the conspiracy. So much is clear from his conduct in arranging meetings at his home at which the other conspirators attended [167] , issuing instructions to other conspirators [168] , reiterating his extremist views and promoting violent jihad in conversations with IM [169] , speaking with Jibryl in code about ammunition [170] and retaining documents at his premises [171] . Whilst all of the conspirators obviously played an important role, Khalid’s actions place him at a level above the others. His various self-serving statements to Dr Nielssen concerning his offending are deserving of no weight.

Khalid was an admitted participant in a criminal conspiracy to engage in acts in preparation for terrorism, in which he occupied a co-ordinating role. In offending as he did, Khalid demonstrated that he was a devout terrorist. He was corrupted by a dangerous, violent and perverted ideology to which he unequivocally subscribed, which he wore as a badge of honour, but which has no place in any civilised society. His offending falls towards the higher end of the scale of objective seriousness. Considerations of general deterrence assume particular significance in determining an appropriate sentence [172] .

The Crown acknowledged that Khalid had pleaded guilty, but pointed out that the plea had been entered at a late stage, after lengthy case management, and following the completion of all pre-trial arguments. Whilst the Crown did not suggest that Khalid was not entitled to some discount to reflect his plea, the effect of the Crown’s submissions was that taking all matters into account, any discount should be minimal.

The Crown accepted that Khalid was 20 years of age at the time of his offending and that he is now 22 years of age. Whilst acknowledging that youth can operate as a mitigating factor, the Crown submitted that where countervailing considerations such as the gravity of the offending played a part, any significance to be given to youth was significantly reduced. The Crown submitted that when sentencing for matters of this nature, considerations of community protection, general deterrence, specific deterrence, denunciation and incapacitation must take precedence.

Senior counsel submitted that Khalid was a youthful offender, who had pleaded guilty in circumstances where the evidence against him was far from overwhelming. It was submitted that in these circumstances, his plea should be seen as one which had facilitated the course of justice and had saved the community the considerable expense of a trial. It was submitted that the plea should be regarded as being particularly significant in circumstances where the trial process could have provided Khalid with a “platform” on which to express his views and ideologies.

It was submitted that I should conclude, principally on the basis of the case notes annexed to the affidavit of Mr Piazza to which I have referred, that Khalid was a “troubled man in prison” [173] , whose inherently harsh conditions of custody had been exacerbated by regular “lock-ins”, and the limitations placed upon the availability of further education. It was submitted that despite these factors, the evidence of Mr Piazza supported a conclusion that Khalid was properly described as a “good prisoner”.

Whilst senior counsel accepted that general deterrence was obviously of importance in determining an appropriate sentence [174] he submitted that in circumstances where Khalid’s demonstrated behaviour in custody had been positive, and where there was some likelihood that his movements would be monitored even after he had concluded his sentence, the need for personal deterrence was lessened. In terms of any adherence to extremist ideology, senior counsel repeated his submission that I should accept the general tenor of the evidence given by those witnesses called in Khalid’s case, and conclude that Khalid was not, and is not, a person of violence. In this regard, senior counsel drew particular attention to the evidence of Khalid’s sister Mouminah, to whom he is said to have expressed disagreement with the philosophies of ISIS. Whilst expressly accepting that this did not constitute evidence of a full renunciation of any previously held ideology, senior counsel submitted that this evidence, together with Khalid’s plea and his expressed desire to speak to a Rabbi, established, at the very least, that Khalid had distanced himself from the ideology which underpinned his offending.

In terms of Khalid’s conditions of custody, the Crown submitted that the evidence established nothing more than the unsurprising fact that Khalid was “doing it hard” [175] . The Crown also emphasised that notwithstanding the case notes, the opinion of Dr Nielssen (upon whose report Khalid relied) made it clear that he was suffering from no psychiatric illness.

The Crown relied on its previous submissions regarding the evidence of those witnesses called in Khalid’s case. To the extent that evidence was given by Khalid’s sister Mouminah that Khalid had made statements to her whilst in custody disassociating himself from the philosophies of ISIS, the Crown submitted that such evidence was of little weight. Even accepting that the statement was in fact made, the Crown submitted that it amounted to nothing more than a self-serving statement made to a third party which was not subject to cross-examination. In all of these circumstances, the Crown submitted that the entirety of the evidence, even when taken at its highest, fell substantially short of establishing any renunciation of extremist ideology, and that this necessarily had a bearing on my assessment of any expressed remorse, and the prospects of rehabilitation.

Some aspects of the Khalid’s subjective case (and indeed the subjective cases of each of the offenders) are to be considered by reference to s. 16A of the Act. However, s. 16A is not exhaustive, and that there are, in the case of each offender, relevant factors which fall outside that specific provision.

Khalid entered a plea of guilty on 31 July 2017, which was the day fixed for his trial. There is some conflict of authority as to whether, in sentencing a federal offender, a Court is entitled to have regard to the so-called “utilitarian value” of a plea of guilty. The prevailing view in this state has been that the utilitarian value of a plea of guilty is not to be taken into account in such a case [176] . That position has also been taken in the Supreme Court of the Australian Capital Territory [177] . A different view has been taken by the Court of Appeal in Victoria [178] .

In R v Ghazzawy [179] I summarised the principles which presently govern the position in this state:

In the present case, I am satisfied that Khalid’s plea may be some evidence of contrition and acceptance of responsibility. I did not understand the Crown to argue to the contrary. Equally, the plea was entered at a late stage, after considerable case management, and in the face of what, in my view, was a strong circumstantial case. In all of the circumstances, and applying the principles to which I have referred, the appropriate discount is one of 10%.

I have dealt below with the issue of Khalid’s prospects of rehabilitation. Having regard to the conclusions that I have reached as to that matter, there is in my view a strong need for any sentence to reflect considerations of personal deterrence.

As previously noted, Khalid is presently 22 years of age and was 20 at the time of the offending. He has a single entry on his criminal history which was of a comparatively minor nature and which did not result in the imposition of a conviction. I accept that he has no history of violent offending. I also accept that he has worked in various community capacities. I have taken all of those factors into account. I have already referred at length to the evidence given by a number of witnesses as to what they considered to be Khalid’s prior good character. Generally speaking they expressed surprise and shock at his admitted involvement in the offending. I have already set out my assessment of that evidence, and how it should be treated.

The principles governing the sentencing of youthful offenders have been discussed on many occasions. Those cited by McClellan CJ at CL in KT v R [187] may be summarised as follows:

In BP v R [188] Hodgson JA accepted the correctness of those principles set out by McClellan CJ in KT [189] before emphasising [190] that Courts should not be “over-ready” to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the same case Johnson J, having set out the principles in KT said [191] :

In JM v R [192] Simpson J (as her Honour then was), having reviewed the authorities, said:

In R v Tran [193] Callaway JA observed that in the case of a youthful offender, rehabilitation is usually far more important than general deterrence. At the same time, his Honour emphasised that there are cases where just punishment, general deterrence, and other sentencing objectives carry at least equal importance. In Azzopardi v R [194] it was observed that whilst, as the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigatory effect of an offender’s youth, it is only in the circumstances of the gravest criminal offending, and where there is no realistic prospect of rehabilitation, that the mitigatory consideration of youth is viewed as being all but extinguished. More recently in HJ v R [195] Garling J (with whom Hoeben CJ at CL and R S Hulme AJ agreed) observed:

Finally, DPP v MHK (A Pseudonym) [196] was a case of a 17 year old offender who had pleaded guilty to doing acts in preparation for, or planning, a terrorist act. In terms of his youth, the Court made the following relevant observations [197] :

Khalid’s offending was obviously of the utmost seriousness. His act of agreeing with the other conspirators to commit acts in preparation for a terrorist act is properly regarded as adult-like behaviour. It involved considerable planning, and detailed discussions about the nature of a proposed act of terrorism and the possible targets upon which it might be perpetrated. The agreement also involved the acquisition of firearms and ammunition. Those circumstances highlight a need to protect society. They serve to reduce the significance of issues of rehabilitation.

Further, and although he might be regarded as youthful in relative terms, Khalid was substantially beyond the age of 18 at the time of his offending. As McClellan CJ at CL pointed out in KT, the weight to be given to youth diminishes the closer an offender approaches the age of maturity.

I have made reference [198] to the opinions expressed by Dr Nielssen as to Khalid’s youth, and its connection with his offending. Those opinions are expressed in somewhat equivocal terms. Having made reference to the fact that Khalid was “very young” at the time of his offending, Dr Nielssen said that Khalid would be expected to “mature in his attitudes over time”. One of the attitudes apparently presently held by Khalid was said to stem from his “indignation at perceived discrimination and mistreatment of Muslims”. Dr Nielssen did not state, in specific terms, that Khalid was suffering from any cognitive or psychological immaturity at the time of (and which contributed to) his offending. In any event, his opinions are based, at least in part, upon accounts given to him by Khalid which are not the subject of sworn evidence. As a result, those opinions are deserving of limited weight. It follows that the evidence does not support a conclusion that immaturity was a significant contributing factor to Khalid’s offending. In all of these circumstances, Khalid’s youth is of little weight in determining an appropriate sentence.

Finally, and irrespective of the case notes annexed to Mr Piazza’s affidavit to which I was taken in the course of submissions, I do not accept that Khalid is suffering from any relevant mental condition. Notwithstanding the submissions made on his behalf regarding the incomplete history said to have been provided to Dr Nielssen (a proposition completely unsupported by the evidence) it remains the position that the report of Dr Nielssen was tendered, and relied upon, in Khalid’s case. Dr Nielssen expressed the unequivocal view that Khalid was not thought to require any specific psychiatric care or counselling.

Khalid expressed his “deep regret” to Dr Nielssen, and his intention to work towards his rehabilitation with a view to “communicating peacefully” with the authorities [199] . His sister gave evidence that he made statements in which he disagreed with the philosophies of ISIS [200] . Lengthy submissions were made regarding how this evidence ought be viewed and assessed. The resolution of that issue requires reference to some authorities.

In R v Qutami [201] Smart AJ (with whom Spigelman CJ and Simpson J (as her Honour then was) agreed) said that considerable caution should be exercised in relying upon statements made by an offender to third parties, including psychiatrists and psychologists, when no sworn evidence is given by that offender. That is not to say such statements are deserving of no weight at all. However, his Honour expressed the view that in many cases, only very limited weight can be given to them.

Smart AJ’s observations assume considerable significance in the present case. The rehabilitation of an offender who pleads guilty to an offence such as this is necessarily dependent, at least in part, upon the offender renouncing previously held extremist views [202] . If a sentencing court is satisfied that such an offender has resiled from such views, the prospects of rehabilitation are enhanced, and the Court must make an appropriate allowance for that fact on sentence [203] .

The onus of establishing the abandonment of a previously held extremist ideology is on the offender, and is to be established on the balance of probabilities [204] . Whilst an offender is under no obligation to give sworn evidence on sentence, it may be open to a court to conclude that the failure to do so means that the onus has not been discharged [205] . In the present case Khalid has chosen not to give evidence. As I have said, the decision in Qutami is not authority for the proposition that statements made to third parties are deserving of no weight at all. However, in the absence of sworn evidence, the weight to be attached to such statements made by Khalid to Dr Nielssen and to his sister is necessarily limited.

Senior counsel emphasised that Khalid had expressed a desire to see a Rabbi. I do not attach the significance to that factor which was urged upon me by senior counsel. In terms of assessing the prospects of rehabilitation, the bare fact that Khalid has made that request is of limited import in the absence of any evidence as to the underlying reason for it.

I accept that Khalid’s plea of guilty may be some evidence of contrition. It may also be taken as some indication of stepping away from his previously held views. To that limited extent, such factors may point favourably towards rehabilitation. However, I can put it no higher than that, and I express those views with caution [206] . It must also be remembered that issues of rehabilitation assume less significance in sentencing for offending of this kind [207] .

Submissions were made regarding Khalid’s conditions of custody, an issue which does not fall squarely within s. 16A but which is nevertheless relevant on sentence. Dr Nielssen formed the impression that Khalid seemed to have adjusted to his custodial conditions. That said, there can be no doubt that those conditions are harsh, and I have proceeded on the basis that they are likely to prevail for the duration of any sentence I impose. It is open to me to make some allowance for Khalid’s conditions of custody and I have done so. However, that allowance is neither mathematical nor, in the circumstances, substantial [208] .

Khalid has been in custody since 23 December 2014 [209] . Any sentence imposed should commence on that date.

The following evidence was tendered in Jibryl’s sentence proceedings [210] :

The statement of facts tendered by the Crown against Jibryl in respect of the conspiracy [218] was in the following terms [219] :

The Crown tendered a separate statement of facts in respect of the firearms offences [227] in the following terms:

Jibryl has no prior convictions [228] .

The evidence of Mr Piazza [229] establishes that Jibryl is currently classified as an AA Extreme High Risk Restricted Inmate. The restrictions about which Mr Piazza spoke in respect of Khalid [230] and about which he spoke in the evidence he gave in Mohamed’s proceedings [231] apply generally to Jibryl. Specifically, Jibryl presently has three approved personal visitors and one approved psychologist/psychiatrist [232] . He is at stage 3, level 3 of his behaviour management level and, like all other inmates, will have greater access to amenities as he progresses [233] . At the time of Mr Piazza swearing his affidavit, Jibryl had not sought to enrol in the PRISM program [234] although it is apparent that he has since done so [235] . According to Mr Piazza, there is no information to suggest that Jibryl has renounced any extremist ideology [236] .

Mr Piazza’s affidavit annexed a number of case notes to which I was taken in the course evidence. A note prepared on 17 March 2015 recorded that Jibryl had enrolled in a welding course [237] . A further note prepared on 15 May 2015 by Ahmed Kilani, a prison Chaplain, recorded that Jibryl had expressed his concerns about a search of his cell that morning and had reported to Mr Kilani that he had lost more than 20 kilograms in weight over a period of time [238] . Mr Kilani formed the view that Jibryl was “struggling in adjusting to gaol life”.

On 18 May 2015 Jibryl was spoken to by Fatima Al Sibai, a psychologist [239] . He told her that he had commenced to exhibit “pervasive OCD type behaviours” at the age of 15, had attended four different schools, and had thereafter had several jobs, each lasting 2 to 3 months. He said that during that period he wanted to be alone and would tend to isolate himself. As a result, he was provided with tasks to address his anxiety related issues.

On 29 May 2015 Mick Marshal prepared a case note in which he made reference to Jibryl having worked in the prison metal shop for approximately 4 months [240] . Mr Marshal described Jibryl as being “always polite and co-operative”. He confirmed that Jibryl had enrolled in a welding certificate course through TAFE and that all reports indicated that Jibryl was “doing well” in that course. Mr Marshal described Jibryl as a “key worker” and a person in respect of whom there were “nil issues”. He prepared a similar note on 16 September 2015 in which he confirmed that Jibryl continued to do well and was responsible for overseeing one of the gaol’s biggest outside contracts in metal work [241] . He described Jibryl as a person who “excels in fabrication logistics” and he again confirmed that Jibryl was an inmate in respect of whom there were “nil issues”. A case note of 18 November 2015 confirmed that Jibryl had completed the welding course [242] .

Jibryl’s mother described him as a “kind, compassionate and gentle soul” who, as a child, suffered from growth deficiencies which were monitored by a paediatrician for a number of years [243] . She said that during most of his school years Jibryl had been teased and bullied by his peers, a situation brought about by the fact that he was physically much smaller than the majority of them. As a consequence, he suffered from low self-esteem as an adolescent. She said that her divorce in 2008 had had a traumatic effect on Jibryl because he had been required to assume responsibility for a number of additional roles within the family, at a time when he was personally struggling to deal with the hardship of the divorce.

Ms Haddad also explained the circumstances in which Jibryl had been engaged on two separate occasions. The first was in 2013 when the relationship was terminated by his then fiancée. The second was in 2014 when, the engagement having been announced in August, it was terminated by his second fiancée’s family in November over a dispute concerning the amount of a promised dowry. Ms Haddad said that the impact upon Jibryl of these circumstances caused him to become depressed.

Ms Haddad said that Jibryl’s offending was not reflective of his peaceful and harmless nature, and that he was known for his love, empathy and kindness. She described him as being “profoundly remorseful”, and expressed confidence that he had learned from what he had done [244] . She said that he would, when given the opportunity to do so in the future, lead a meaningful life.

Dr Allnutt saw Jibryl on 6 August 2015. On the basis of the history provided, and the other material made available to him, Dr Allnutt said that Jibryl had manifested a variety of psychiatric symptoms from a young age which had attracted various diagnoses including anxiety, OCD, bipolar disorder and schizophrenia spectrum disorders [245] . He said that at the time of the examination, Jibryl had manifested a “constellation of psychiatric conditions, predominately anxiety, depressive and psychotic symptoms” [246] . Dr Allnutt was unable to reach a diagnosis of bipolar affected disorder and he did not suggest that any of Jibryl’s symptomology was casually related to his offending. He said that Jibryl was preoccupied with the fact of his incarceration, and experienced associated anxiety about the sentence proceedings and the impact upon his family [247] .

Dr Furst saw Jibryl in custody on 29 September 2017. In terms of his offending, and with particular reference to his authorship of documents, Dr Furst recorded Jibryl as saying [248] :

Jibryl told Dr Furst that he “wanted to let his anger out on a piece of paper”. He claimed that he was “a bit naïve” and did not appreciate how seriously his actions could be taken [249] . Dr Furst then recorded the following [250] :

Dr Furst said that Jibryl was suffering from high levels of stress and anxiety and that he met the criteria for diagnoses of [251] :

Dr Furst said that there was no causative link between any of these disorders and Jibryl’s offending [252] . However, he expressed the view that Jibryl’s anxiety, general psychopathology and impaired psychosocial function, all of which had developed as a consequence of his chronic anxiety and depression, had left him in an angry, irritable, disenfranchised and vulnerable state at the time of his offending. He described Jibryl’s prospects of being successfully rehabilitated as “moderate” [253] .

The report of Mr Ahmad, which was prepared on 20 August 2014, was the result of a referral from a Dr Hassan. On the basis of the information provided to him, Mr Ahmad identified a number of “diagnostic possibilities” including schizophrenia, a major depressive disorder, schizoaffective disorder, social phobia, paranoid personality disorder and schizotypal personality disorder [254] .

Dr Emder examined Jibryl following referral from his general practitioner in November 2009 when he was 16 years of age. He described Jibryl as a person who had “some problems with his growth and also significant psychological difficulty” [255] . His said that Jibryl had recently been commenced on Zoloft (an anti-depressant) and was suffering from low self-esteem, partly because of his short stature [256] .

The academic records which were tendered establish that Jibryl was assessed as “competent” in his TAFE studies [257] . His school reports were generally positive [258] .

On 25 September 2017 Jibryl’s solicitor wrote to the Commissioner for Corrective Services seeking admission to the PRISM program [259] . On 28 September 2017 he was advised that no specific information regarding Jibryl’s request could be provided. It was recommended that Jibryl express his interest in being included in the program to prison staff. It was also pointed out that all inmates were eligible to engage with psychological and counselling support services, both of which could assist in supporting Jibryl’s “stated interest in commencing the process of disengagement” [260] . As previously noted [261] , Mr Piazza gave evidence that “technically” entry into the PRISM program is not available until the latter stages of a sentence.

The testimonial material variously described Jibryl as well-mannered, kind and well behaved. The authors of a number of the testimonials confirmed the adverse effect upon Jibryl of the separation and divorce of his parents. A number of them also included statements to the effect that with proper guidance, Jibryl’s prospects of rehabilitation were favourable.

In terms of the general nature of the conspiracy, and the approach to be adopted in sentencing in such cases, the Crown relied on the submissions made in the case against Khalid. In terms of matters specific to Jibryl, the Crown submitted that he too had occupied a position of seniority, albeit at a level under that of Khalid. The Crown pointed, in particular, to:

Mr Temby QC, who appeared on behalf of Jibryl, emphasised that Jibryl had not come under investigation until November 2014 and that his involvement in the conspiracy had not commenced until some time after 7 December 2014. He submitted that his contact with the other co-conspirators was limited to contact with Khalid which had first occurred on 7 December 2014, and that the content of the conversation on that day was consistent with Jibryl having not interacted with Khalid for a lengthy period of time. It was submitted that in these circumstances, not only was the period of the conspiracy short, Jibryl’s involvement was even shorter.

It was submitted that there was no evidence that Jibryl had agreed to any nominated target. In terms of specific parts of the statement of facts, it was submitted that the conversation with Khalid on 16 December 2014 did not encompass discussions about martyrdom or planning for a terrorist attack [262] , and that the evidence did not establish that Jibryl had attended the meeting at Khalid’s premises during 17 and 18 December 2014 [263] .

Senior counsel took particular issue with the Crown’s submission that Jibryl occupied a position “high up” in the conspiracy, and submitted that Jibryl was properly described as a “late joiner” [264] . It was submitted that in circumstances where the evidence established that Jibryl had had little, if any, contact with Khalid for a considerable period of time prior to December 2014, the conclusion urged by the Crown that Jibryl occupied a senior role in the conspiracy could not be made out [265] .

Finally, to the extent that the Crown relied on references to a “wedding” as being a form of code, senior counsel pointed to the evidence that Jibryl was in fact engaged to be married on two separate occasions, and that neither marriage eventuated. It was submitted that in these circumstances any reference by Jibryl to a “wedding” [266] was legitimate and not coded.

The Crown submitted in reply that the objective seriousness of Jibryl’s offending was reflected, at least in part, in the nature of what was being considered in terms of a terrorist act. The Crown again acknowledged that no particular target had been identified, but submitted that the broad nature of appropriate targets was clearly being discussed, in the context of the use of firearms. The Crown also pointed to the fact that in conversations between Khalid and IM, and in one or more of the documents, the killing of police, and martyrdom, were both discussed, and that this reflected the objective seriousness of the offending.

The Crown accepted that the earliest contact between Jibryl and Khalid had occurred on 7 December 2014. However, the Crown submitted that this did not alter the fact that Jibryl occupied a high position in the conspiracy, and that what had been done in the period in which he was involved was significant. The Crown pointed, in particular, to the fact that Jibryl had possession of firearms and ammunition, and was the author of two separate documents. It was submitted that the inference to be drawn from Jibryl’s actions was that he was encouraging the discussion of what act(s) might be taken in pursuit of the conspiracy. In all of these circumstances, the Crown submitted that individual factors such as whether Jibryl had engaged in the use of particular coded language, or whether he attended the meeting at Khalid’s premises on 17/18 December 2014, were of little significance.

One of the principal submissions advanced on behalf of Jibryl was that the nature and circumstances of his offending were less serious on account of the fact that the conspiracy itself was short, and that Jibryl’s involvement was even shorter. It was submitted, in effect, that these (and other) factors supported a conclusion that the objective seriousness of Jibryl’s offending was substantially lower than that of Khalid. As I have already observed in dealing with Khalid’s case, the duration of the conspiracy is an obviously relevant factor, although not the only one.

I accept the submission advanced on Jibryl’s behalf that he is properly described as a “late joiner”. I also accept that prior to joining the conspiracy, Jibryl had had little (if any) contact with Khalid. I also accept that evidence falls short of establishing that he attended the meeting at Khalid’s premises on 17/18 December 2014. However, there are other factors relevant to a determination of the nature, circumstances and objective seriousness of Jibryl’s offending.

Like Khalid, Jibryl’s offending was supported by an unequivocal adherence to violent ideology. The strength of that adherence is demonstrated by the very fact of Jibryl’s offending, as well as by his plea. Given the object of the conspiracy, any comment about the significance of Jibryl’s possession of firearms and ammunition would be superfluous.

Moreover, Jibryl was responsible for writing two documents. The “Torn Up Motorbike Document” was heavily coded in its references to firearms and reflected a considerable degree of planning and premeditation. It was obviously directed towards the fundamental consideration of what firearms would be required in order to carry out the type of attack which was being contemplated.

The “We will break the ice hear in AUS” document was even more significant. In referring to the fact that surveillance may have been increased as a consequence of the Lindt Café siege, Jibryl stated that “the earlier we do things the better” [267] . Having referred to members of the Australian military forces fighting overseas as “pigs”, he exclaimed that “the time is NOW!!!” before stating that “we are going to do our own things and we will break the Ice here in AUS” and that, as a consequence, “everything will start here” [268] . I am satisfied that those various statements were references to the attack which was being contemplated and that Jibryl saw a need to commit such an attack sooner rather than later. So much is clear from the language that he adopted. Like Khalid, Jibryl does not stand to be sentenced as though he committed the acts about which he wrote and which were obviously being contemplated. Equally however, such acts necessarily inform the nature and gravity of his offending.

Jibryl told Dr Furst that he was “angry” at the time, and “a bit naïve”, and that it was “just a piece of paper”. For the reasons I have already expressed, such statements are deserving of little weight in the absence of sworn evidence. Moreover, they seriously understate the seriousness of Jibryl’s offending. What Jibryl wrote in those documents would instil fear and trepidation in any person who read it. In my view, his authorship of them reflects an unequivocal commitment to violent jihad, and an equally unequivocal commitment to the conspiracy of which he was an admitted part.

Further, I am unable to accept the submission that Jibryl’s first conversation with Khalid on 16 December 2014, and in particular his reference to “getting married”, should be construed as an innocent reference to his own personal situation. The conversation must be viewed in the context of that which immediately followed it, which was heavily coded in an obvious attempt to obscure the fact that what was being discussed was firearms.

For all of these reasons Jibryl’s offending was of considerable objective seriousness. It falls towards the upper end of the scale, although it is slightly lower than that of Khalid. That said, and like Khalid, Jibryl was also a committed terrorist, and similarly corrupted by the ideology to which he adhered. Once again, considerations of general deterrence assume considerable importance in determining an appropriate sentence.

The Crown acknowledged Jibryl’s plea but pointed out that it had been entered at a late stage. As with Khalid, the Crown did not suggest that the plea was not deserving of some discount, but submitted that any discount should be at the lower end of the scale.

Senior counsel emphasised that Jibryl had no criminal history and was therefore to be sentenced as a person of prior good character. Whilst accepting that subjective considerations generally played a lesser role on sentence given the nature of this kind of offending, senior counsel highlighted a number of factors which, he submitted, should be taken into account.

It was submitted that the evidence established that Jibryl had not previously displayed any tendency towards violence, and that his conduct in custody had been exemplary, productive and co-operative. It was further submitted that a positive feature of Jibryl’s subjective case was the fact that he has been recorded as seeking, and being granted access to, “moderate” Islamic religious material, and had been engaging with Islamic clergy. It was submitted that these factors along with his plea of guilty, the accompanying acknowledgement of wrongdoing, and his relative youth, supported a conclusion that his prospects of rehabilitation were generally favourable. Senior counsel acknowledged that there was no evidence from Jibryl himself regarding the renunciation of any previously held extremist ideology, but submitted that the other factors relied upon were generally supportive of him. It was submitted that any period of imprisonment to be imposed would see Jibryl emerge as an older and wiser person, who was strongly disinclined to follow any path of violence.

The Crown emphasised that the nature of Jibryl’s offending carried with it an adherence to the cause of violent jihad. Whilst accepting that Jibryl’s plea of guilty could be seen as some step towards the abandonment of such a cause, the Crown submitted that the onus of establishing that fact was firmly upon an offender, such that the best evidence of abandonment would necessarily be from Jibryl himself. The Crown submitted that at its highest, the plea of guilty, the inquiry about the PRISM Program and Jibryl’s behaviour in custody, may support a conclusion that he may be willing to step away from the ideology.

As with all offenders, Jibryl’s subjective case is to be considered by reference to applicable provisions of s. 16A(2) of the Act along with any other identified factors which are relevant.

Jibryl entered a plea of guilty to the conspiracy offence on 31 July 2017 which was the day fixed for his trial. He pleaded guilty to offences contrary to the FA on 3 October 2017. I have previously set out those authorities which bear upon the assessment of the discount in respect of a plea of guilty in the case of a Federal offender [269] .

To the extent that I am required to apply a discount in respect of the offences contrary to the FA, the applicable range to reflect the utilitarian value of the pleas is 10%-25%, the timing of the pleas being the predominant consideration [270] .

Taking all of those circumstances into account, the appropriate discount in the case of each of Jibryl’s pleas of guilty is 10%.

I have dealt with the issue of Jibryl’s prospects of rehabilitation below. There are some favourable aspects, although there remains a need for any sentence to reflect considerations of personal deterrence.

Jibryl is now 24 years of age and was 21 at the time of the offending. He has no previous criminal history and the testimonials speak highly of him. I have taken those factors into account.

I have already set out the principles governing the sentencing of youthful offenders [271] . I attach little weight to Jibryl’s self-serving assessment to Dr Furst that he was naïve. His offending reflected considerable planning, and involved the possession of firearms and ammunition. There is no evidence that he was suffering from any degree of cognitive or psychological immaturity which contributed to his offending, the objective seriousness of which I have concluded was in the upper range. Such offending was committed when Jibryl was substantially over the age of maturity. Further, whilst Dr Furst diagnosed Jibryl as suffering from a number of disorders, he was clearly of the opinion there was no direct correlation, or causative link, between any of those disorders and the offending. In all of the circumstances, and for the reasons expressed in Khalid’s case, Jibryl’s youth is deserving of little weight on sentence.

Jibryl expressed “regret” for his actions to Dr Furst. For the reasons expressed when dealing with Khalid’s case, statements of that nature are of limited weight in the absence of sworn evidence [272] .

In terms of his prospects of rehabilitation, I have already canvassed the effect, in a matter such as this, of the absence of any sworn evidence renouncing a previous adherence to violent ideology [273] . Those observations apply equally in Jibryl’s case. Jibryl’s plea of guilty and the fact that he has obviously used his time in custody productively by (inter alia) gaining employment, are factors which operate in his favour. They point tentatively towards a conclusion that his prospects of rehabilitation are more favourable than not, although for the reasons I have already expressed when dealing with Khalid’s case, any such prediction must be expressed with a considerable degree of caution in the absence of sworn evidence.

I have made reference to Jibryl’s conditions of custody which are obviously harsh. I have taken those conditions into account in the manner previously expressed [274] .

Jibryl has been in custody since 10 December 2014 [275] . Any sentence imposed should commence on that date.

The following evidence was tendered in IM’s sentence proceedings [276] :

The statement of facts tendered by the Crown against IM was in the following terms [291] :

IM’s criminal history contains an entry arising from his appearance at the Parramatta Children’s Court on 26 August 2015 in respect of counts of possessing an unauthorised firearm. Each of those charges was dealt with pursuant to s. 33(1)(b) of the CCPA. The firearms which were the subject of those charges are the same firearms to which reference is made in the facts tendered [303] .

Ms Arnold is an Assistant Manager at the Juvenile Justice Centre at which IM is presently held. IM has a custodial classification based upon the serious nature of the charge to which he has pleaded guilty, and what is viewed as his possible risk level. As a result, he is unable to mix with any other detainee who is charged with a similar offence. The risk he is considered to pose is monitored in a number of ways including by conducting background and intelligence checks on all of those who visit him, monitoring his phone calls, monitoring all incoming and outgoing mail and checking any books and other written material provided to him by any family member or associate.

He has been placed in a single room with a television, desk and his own amenities. The unit in which he is housed has a number of recreational facilities. His able to make telephone calls to his legal representative on any day of the week and is permitted to have legal conferences with the same frequency. He currently has 21 approved visitors, all of whom are members of his immediate or extended family. He has 7 telephone numbers approved for contact [304] .

IM is seen regularly by Justice Health for an asthma condition and is able to consult health services as and when the need arises. He has access to all the general amenities of the centre in which he is housed although due to his classification he is only able to access programs which are designated “low risk” [305] .

Ms Arnold stated that IM was generally very polite and well-mannered towards staff [306] . She described him as an intelligent young person who interacted well with others. His behaviour is managed through the Detainee Incentive Scheme, a program which rewards positive behaviour with incentives. He has achieved 5 out of 7 incentives since being taken into custody and has progressed to stage 2 of the program which gives him greater access to amenities [307] . However Ms Arnold did say that at times IM had displayed anti-social behaviour and a disregard for the rules and practices of the centre, as a consequence of which he had been issued with two reports for poor behaviour [308] . That said, she stated that IM had not been involved in any serious incidents since being taken into custody [309] .

The report of Juvenile Justice set out IM’s background, the terms of which were generally consistent with what appeared in the various medical reports. The report stated that IM had identified negative peer associations, lack of consequential thinking, and immaturity as being factors that had contributed to his offending [310] . IM said that as he started to become acquainted with his co-offenders, he enjoyed their company and that in light of the fact that he had been a victim of bullying at school, he looked up to them because he felt safe and important. The report went on to state [311] :

The report noted that IM was working closely with a psychologist in custody who had reported that he engaged well with counselling, and that he had focused upon his mental health and coping strategies [312] . In terms of IM’s attitude and beliefs, the report stated the following [313] :

Dr Woods interviewed IM on 25 September 2017. For the purposes of his assessment he was provided with a number of documents including the facts tendered by the Crown (although not, it seems, the telephone intercept material). Under the heading “Executive Summary” Dr Woods said the following [314] :

Dr Woods said that IM “was never fully radicalised” and “that he now rejects such values” [315] . He expressly disagreed with the opinions of Dr Tong and Dr Jones that IM suffered from a significant level of cognitive impairment. He said, in particular [316] :

Dr Woods made reference to IM’s reported history of having been bullied and socially isolated in primary school [317] . He said that “fantasy based hero like behaviour” by young adolescents was not unusual, but was more likely to occur when the person in question did not enjoy broad peer based social acceptance, leading to a fragile “sense of self”. Dr Woods went on to say [318] :

Dr Woods concluded that IM’s responses to testing were consistent with a diagnosis of major depressive disorder [319] . He said that IM had progressed in his rehabilitation and that continued detention represented the primary risk to IM’s long term mental health and successful rehabilitation [320] .

Dr Tong examined IM on 31 August 2017. The history given to Dr Tong by IM included the following [321] :

Dr Tong noted that IM’s clinical presentation did not exhibit symptoms suggestive of irrationality, agitation or psychomotor retardation [322] . She found, based on IM’s responses to testing, that he was functioning within the borderline range of cognitive capacity [323] , and concluded that he suffered from impaired cognitive and social maturity [324] .

Dr Jones assessed IM over a period of three days on 14, 15 and 17 November 2016. He concluded that IM was suffering from a major depressive disorder of a moderate severity [325] . He concluded that whilst IM exhibited some deficiency in conceptual and cognitive functioning, he was not suffering from any intellectual disability. He also said that IM’s depressive disorder was likely to have manifested itself as a result of the alleged offending, the current proceedings and the inevitable social ramifications, both for himself and his family [326] .

Dr Allnutt assessed IM on 21 August 2017. The history taken by Dr Allnutt included references to the telephone intercept material. IM told Dr Allnutt that he thought his interaction with Khalid was “weird”. He said, in effect, that he did not think that Khalid meant what was being discussed in at least some of their conversations. In terms of his association with firearms, IM told Dr Allnutt that he had photos taken of himself with a gun to “show off” [327] . Dr Allnutt thought that IM manifested “a constellation of anxiety and depressive symptoms” [328] and that differential diagnoses would include chronic Post Traumatic Stress Disorder and a Panic Disorder. Dr Allnutt formed the impression that IM’s involvement in the offending had emerged in the context of a relationship with older males, when he was emotionally vulnerable and felt a need for a sense of belonging, identity and personal validation. He concluded [329] :

Dr Allnutt went on to say [330] :

IM’s mother said that her separation from her husband had had a negative effect upon IM [331] and that his arrest for this offence had rendered him quieter than was previously the case [332] . She expressed a belief that IM “just fell under the spell of the other adults in this case” (who) “made him feel accepted and loved” [333] . She placed the blame for IM’s current predicament upon herself, expressing a belief that her separation from her husband had made IM feel vulnerable [334] . She described the circumstances arising from the current proceedings as being “a nightmare for (her) family” [335] .

IM’s father said that his separation “took a toll” on IM, as a consequence of which IM had become withdrawn [336] . He too sought to place blame upon himself, and described the present circumstances as having “rocked (his) family profoundly” [337] . He said IM was “only a kid” who “certainly would not have entertained the thoughts of the conspirators had he been older and more mature”, describing him as a “really a gentle boy who wouldn’t harm a fly” [338] .

The medical records pertaining to IM’s parents confirm that the mental health of IM’s mother has been adversely affected as a consequence of the stress and anxiety arising from IM’s current circumstances [339] . The records pertaining to IM’s father confirm that he is also suffering from medical issues. However, they are of a different nature to those being suffered by IM’s mother, and do not appear to be causally related to IM’s current circumstances.

The testimonials tendered on IM’s behalf variously described him as honest, quiet and kind, and a person in respect of whom the present offending was uncharacteristic. All of those providing testimonials expressed their ongoing support.

In terms of the general nature of the conspiracy and its objective seriousness, the Crown relied on the submissions made in respect of Khalid and Jibryl. Specifically in terms of IM, the Crown submitted that he too occupied a high role in the group. The Crown emphasised that IM was a strong adherent of jihadist ideology, as evidenced by his participation in the offending. The Crown also pointed to the fact that in the course of recorded conversations with Khalid, IM had often expressed a strong desire to engage in a terrorist attack and become a martyr. The Crown also emphasised that in those same conversations, IM often spoke about weapons in a coded form.

The Crown also emphasised that as part of his role in the conspiracy, IM had sourced four firearms from his uncle’s premises and had sent photographs of himself posing with the firearms to Khalid. This, it was submitted, highlighted the significant role that IM had played.

Mr James QC, who appeared on behalf of IM, accepted that the facts tendered by the Crown set out the extent of the conspiracy, and the role played by IM. However, he emphasised that IM was 14 years and 11 weeks old at the commencement of the conspiracy and submitted that his involvement in the group should be viewed as “apparently as an active disciple of Khalid” who, when told that IM sought to go to Syria to fight, had urged him to stay in Australia and perform a terrorist act in this country. He described IM’s offending as a “burst of 14 year old enthusiasm”.

Senior counsel took issue with the Crown’s submission that IM’s role was a prominent one. He submitted that the use of such an all-encompassing approach had the tendency to obscure a proper assessment and appreciation of the actual role which IM had played. Whilst accepting that the offending was objectively serious, senior counsel submitted that the period of conspiracy was short, and that there was no basis on which to assert that IM had played an “adult” or primary role. He submitted that IM was obviously immature, and that there was an air of unreality about his participation. Whilst senior counsel did not suggest that IM’s offending was other than serious, he submitted that the act of participating in a conspiracy was not as culpable, nor as objectively serious, as committing a completed offence. This, it was submitted, was particularly so where the agreement did not extend beyond planning, and where there was no specific terrorist act in mind.

It was submitted that it was not IM’s primary focus to commit any terrorist act in Australia, but rather to go and fight in Syria, and that his expressions of “enthusiasm” were illustrative of how a young person could be recruited and radicalised. It was submitted that IM was a child, in respect of whom sentencing principles in respect of young persons were applicable.

It was submitted that when determining IM’s objective criminality, I should find that he was an “enthusiastic” 14 year old [340] who was taking a religious stance at the insistence of, or at least amongst, others who were much older and much more influential. Senior counsel went so far as to say that I should find that IM was “recruited” by Khalid into joining the conspiracy and remained under his influence thereafter, seemingly envisaging himself as some kind of religious hero who was able to obtain martyrdom [341] . He submitted that I should find that IM entered the conspiracy as a “follower”, and had participated under the influence of others in circumstances where he was eager to obtain their acceptance. It was submitted that I should find that IM did not have a fixed state of mind concerning his own radicalisation, and that any apparent adherence to violent jihad was a creature of his youth, immaturity and the other influences on him.

The Crown did not take issue with the proposition there was some influence exercised by Khalid over IM. However, the Crown submitted that the evidence did not support a conclusion that IM had been “recruited or “groomed” by Khalid in the sense of being enticed into becoming involved [342] . It was submitted that the entirety of the evidence, and particularly the telephone intercept material, reflected a readiness and a willingness on the part of IM to become involved, absent any enticement whatsoever. In that regard, the Crown emphasised, in particular, that IM had engaged in coded conversations about martyrdom.

Viewed objectively, IM’s offending was obviously serious. He has admitted to being a participant in a criminal conspiracy which had, as its objective, carrying out acts in preparation for a terrorist act. I am satisfied that during the period of the conspiracy, IM was an adherent to the ideology of violent jihad. The offending to which he has pleaded guilty supports that conclusion. Such conclusion is fortified by the statements made by IM in his conversations with Khalid about becoming a martyr, as well as by the nature of the material which was found on his telephone, and which included images of a beheading, images of ISIS banners and weapons, and an image taken from the YouTube footage which was relied upon by the Crown against Khalid.

It is particularly significant that as part of his participation in the conspiracy, IM sourced a number of firearms. He was then photographed holding those firearms and sent the photographs to Khalid. In one of them, he appeared to be adopting what might be described as a “combat” pose. In another he was gesticulating with a salute generally accepted to be of a kind exhibited by devotees of ISIS.

All of these circumstances fly in the face of IM’s assertion to Dr Tong that he “thought it was a joke”. Such an assertion is at odds with acquiring firearms, and professing a desire to become a martyr. I am also unable to accept that IM’s offending can be properly regarded as a burst of teenage enthusiasm. On the contrary, his conduct was serious, sustained and multi-faceted.

Dr Woods concluded that it was “questionable” whether IM was ever “genuinely radicalised”. Precisely what was meant by that latter term was not explained, although it would appear that Dr Woods was seeking to contrast “genuine radicalisation” with what he referred to as “fantasy based hero like behaviour”. To the extent that Dr Woods was expressing the view that IM’s offending fell within the scope of the latter, I do not accept that to be the case. IM did a great deal more than engage in imaginative behaviour in which he fantasised about a terrorist attack. Actually acquiring firearms, in the context of discussions which were taking place about terrorist attacks and martyrdom, is not imaginative in any sense of the term. It is real.

Moreover, and leaving aside what may have been meant by the term “genuinely radicalised”, not only is the suggestion that IM was engaging in fantasy inconsistent with his plea of guilty, his actions reflected an unwavering commitment to the cause of violent jihad, as well as martyrdom. There is an important distinction to be drawn between being young and making poor decisions which a person of more mature years may not make, and engaging in fantasy. What IM did was not the latter. Whether it was the former is an issue I have considered further below.

It was submitted that I should find that IM was not simply a follower of Khalid, but that he had been (to use the phrase adopted by Dr Woods) “targeted and groomed” by Khalid to join the conspiracy. There is no doubt that for the period of the conspiracy, Khalid and IM had a close association. So much is evident from the nature of their recorded telephone conversations. I am satisfied that Khalid had some influence over IM. However, exerting influence over a person does not, of itself, lead to the conclusion that such a person has been targeted and groomed. Accepting for present purposes that the expression of such an opinion is within the province of an expert, I do not accept that IM was targeted and groomed in the present case. Quite apart from any other consideration, Dr Woods’ opinion is based, to a large extent, upon the history provided to him by IM regarding the circumstances in which he came to meet Khalid and others. For the reasons I have already expressed, such statements are deserving of limited weight.

All of that said, IM’s age is an obviously important factor. Of all of the offenders before the Court, the principles which govern the sentencing of youthful offenders are of the greatest significance in his case. The authorities establish that the weight to be given to youth diminishes the closer an offender approaches the age of maturity. However the corollary of that proposition is that the weight to be given to youth must increase the further away an offender is from the age of maturity at the time of his offending. Johnson J pointed out in BP that the law recognises the potential for the cognitive, emotional and psychological immaturity of a young person to contribute to his or her breach of the law, such that where immaturity of an offender is a significant contributing factor to the commission of an offence, the criminality involved will be less than if the same offence was committed by an adult. In the present case, Dr Tong expressed the view that IM suffered from impaired cognitive and social maturity. Dr Allnutt said that IM was vulnerable at the time of the offending in light of his age. Whilst those opinions are based, at least in part, on the histories provided by IM, they are also underpinned by the fundamental fact that IM was 14 years of age at the time of his offending.

Viewed objectively, IM engaged in what is properly regarded as adult like behaviour. However I am satisfied on the evidence that IM’s immaturity contributed to his offending. It follows that his youth is a mitigating factor in the sense explained in the authorities. However, in a case of offending as serious as this, youth does not mean that considerations of community protection, general deterrence and denunciation are rendered entirely irrelevant [343] .

The Crown acknowledged IM’s plea of guilty but again submitted that it was entered at a late stage. The Crown further submitted that whilst the plea might be some evidence of contrition, and some evidence of a stepping away from previously held beliefs, it was difficult to be definitive about IM’s prospects of rehabilitation.

Senior counsel for IM stressed the principles applicable to the sentencing of youthful offenders. At the same time, he expressly recognised that the youth of an offender does not automatically lead to a reduced sentence and that the greater the objective gravity of an offence, the less likely it is that retribution and general deterrence will cede to the interests of rehabilitation. However, senior counsel emphasised that at the time of the offending IM was barely above the age of statutory responsibility and that accordingly, the considerations relative to his youth, particularly as they impacted upon IM’s prospects of rehabilitation, loomed larger.

Senior counsel submitted that the evidence established a capacity for rehabilitation in IM’s case, and emphasised that achieving rehabilitation was a matter which operated for the greater protection of the community. He submitted that the Juvenile Justice Report was entirely favourable to IM, and positive as to his prospects of rehabilitation. It was submitted that the report gave no indication that during his period in custody, or on remand, IM had been “radicalised”.

In terms of the various reports which are before the court and which record statements made by IM in relation to his offending and related matters, senior counsel submitted that authorities such as Qutami did not go so far as to conclude that such evidence is to be given no weight at all, but simply that it should be approached with caution. It was submitted that IM’s plea was of considerable value, particularly when it was considered in the context of evidence relating to renunciation, rehabilitation, de-radicalisation and developing maturity. It was submitted that the plea reflected IM’s willingness to facilitate the course of justice, as well as a willingness to take responsibility for his actions. In circumstances where the plea had avoided a long and complex trial, and in circumstances where it was properly regarded as evidence of remorse and a facilitation of the objectives of justice, it was submitted that a discount of at least 15-25% should be applied.

Senior counsel submitted that the goal of specific deterrence had already been substantially achieved in the case of IM by (inter alia) the long period he had spent awaiting trial subject to strict conditions of bail. Senior counsel urged me to take into account those conditions.

Finally, senior counsel drew attention to the evidence of the health issues presently being suffered by IM’s parents. He particularly emphasised those of IM’s mother, and their connection with IM’s offending. It was submitted that this was a relevant factor under s. 16A(2)(p) of the Act.

The Crown submitted that in terms of IM’s rehabilitation, the issue was not whether IM had been “genuinely radicalised”, but rather whether he had stepped away from his previous adherence to violent ideology, and if so to what extent. The Crown submitted that there was no evidence to support a conclusion that IM had done so, although the Crown accepted that the plea of guilty may be some preliminary indication in that regard. At the same time, the Crown drew attention to some of the recorded histories in the medical reports which, it was submitted, were at odds with a conclusion that IM had accepted the seriousness of his offending.

The various aspects of IM’s subjective case are to be considered by reference to (inter alia) the relevant provisions of s 16A(2) of the Act.

The Juvenile Justice Report confirms that IM accepts responsibility for his offending and his plea is consistent with that. Equally, the plea obviously came at a late stage. I have already set out the principles which govern the assessment of any discount to be applied in recognition of that plea. In my view, the appropriate discount is 10%.

The histories given by IM to some of the medical practitioners who provided reports on his behalf tended to downplay the seriousness of his offending. Although the Juvenile Justice Report indicates that IM now accepts responsibility for his offending, there remains a need for any sentence to have some regard to personal deterrence.

I have dealt with the issue of IM’s age, and have expressed my conclusions as to how it impacts upon consideration of an appropriate sentence.

IM’s criminal history is limited to his appearance before the Children’s Court in respect of the firearms offences. As I have already noted, those offences are part of the conspiracy.

I also take into account the opinions of Dr Jones and Dr Allnutt regarding IM’s current depressive disorder.

As with the other offenders, there is no direct evidence from IM himself as to his renouncement of the beliefs which I have found that he held at the time of his offending. In that respect, his position may be usefully contrasted with the offender in MHK, whose decision to give evidence, face cross-examination on his plea, and renounce and denounce his previously held beliefs, were found to be “significant mitigating circumstances” [344] .

The precise point which IM has reached in his rehabilitation remains somewhat clouded. His plea may be some evidence of his contrition. Whilst the histories recorded in some of the medical reports indicated a tendency on IM’s part to downplay his actions, the Juvenile Justice Report indicates that he has now accepted responsibility for his part in the offending, and its seriousness. Further, accepting (as I have) that IM’s offending was committed at a time when he was immature, the general tenor of the medical evidence supports a conclusion that with increased maturity will come an increased sense of responsibility. Those factors tentatively point to a conclusion that his prospects of rehabilitation are more favourable than not. However I express that conclusions with the same degree of caution about which I have already spoken in respect of Khalid and Jibryl.

I have already referred to the medical conditions suffered by IM’s parents. That suffered by his mother appears to be in the nature of a reaction to IM’s offending, and his subsequent arrest and incarceration, although that of his father does not. In R v Zerafa [345] the majority (Hoeben CJ at CL and Latham J; Beech-Jones J dissenting) concluded that the effect to which s. 16A(2)(p) refers must be in the nature of exceptional hardship. Subsequently, in Director of Public Prosecutions (Cth) v Pratten (No. 2) [346] Basten JA raised the question whether the views of the majority in Zerafa should continue to be followed. Campbell J [347] thought that whilst there was “much to be said” for the dissenting view expressed by Beech-Jones J in Zerafa, it was not an appropriate occasion to depart from the long line of authority to the contrary. Adams J [348] expressed a not dissimilar view to that of Campbell J.

Accepting that the decision of the majority in Zerafa expresses the current state of the law in this regard, in my view it could not be said that the demonstrated effect, upon either of IM’s parents, of his offending, arrest and incarceration, amounts to “exceptional hardship”. Accordingly, s. 16A(2)(p) does not apply. However, I have taken those matters into account as part of IM’s overall subjective case.

I have already made reference to IM’s conditions of custody. Although not as rigid as those applying to the remaining offenders, they are restrictive to some degree and I have taken them into account in the same way as I have previously expressed [349] .

I was also asked to take into account the fact that prior to being detained in custody following his plea of guilty, IM had spent a considerable period of time subject to strict conditions of bail which significantly curtailed his liberty. It is open to me to take that into account but I am not obliged to do so [350] . The weight (if any) to be given to that factor in any case will depend upon a variety of matters. Less weight may be given to it in circumstances where the imposition of a sentence of imprisonment is required for the purposes of denouncing the crime and reflecting general deterrence [351] . In IM’s case, although general deterrence remains a relevant factor, consideration of other matters stemming from his youth are to be taken into account.

I have had regard to IM’s conditions of bail prior to the date on which he was taken into custody following his plea. However, like his conditions of custody, the weight to be given to that factor is neither the subject of mathematical calculation, nor substantial.

IM was arrested on 10 December 2015 and remained in custody until he was released on bail on 14 January 2016 (a total of 35 days). He remained at liberty 31 July 2017 when he was returned to custody following his plea of guilty. In determining his sentence I have taken into account the fact that he has already effectively spent 1 month in custody.

The following evidence was tendered in Mohamed’s sentence proceedings [352] :

The facts tendered by the Crown against Mohamed [358] were in the following terms:

It will be apparent that the facts tendered by the Crown against Mohamed contained references to the conspiracy with which Mohamed is not charged. The facts tendered by Said [383] are in the same category. The Crown explained that any reference to the conspiracy in each of those statements of facts was included to demonstrate the knowledge of the respective offenders of the connection between the documents in question and the preparation for a terrorist act [384] . The Crown made it clear that this was the sole basis upon which those references were included.

Mohamed’s criminal history contains a number of relatively minor drug and driving offences in 2014 and 2015. There is no history of violent offending.

The affidavit evidence of Mr Piazza was generally consistent with that relied upon by the Crown in the cases of the other offenders. As I have already noted Mr Piazza was called to give oral evidence in relation to matters specific to Mohamed and his conditions of custody [385] . Mr Piazza said [386] that there was no information to suggest that Mohamed had denounced any extremist ideology. In the course of cross examination, he was taken to a case note [387] which recorded that Mohamed had “denied any association with or interest in terrorism organisations”. Mr Piazza said [388] that he was not aware of the contents of that note at the time of swearing his affidavit.

Mr Watson-Munro expressed the view that at the time of his examination, Mohamed was suffering high anxiety and a depressive disorder, although there was no indication of any major psychiatric disturbance. He reported that Mohamed had “expressed appropriate remorse” and required treatment” [389] . In terms of Mohamed’s reported attitude to his offending, Mr Watson-Munro said [390] :

Mr Watson-Munro noted that Mohamed had been diagnosed with ADHD at the age of 13 [391] , a condition which he (Mr Watson-Munro) described as “highly debilitating” and which, in his opinion, had impacted upon Mohamed’s self-esteem and vulnerability to potential peer group influence [392] . He said that it was “arguable” that Mohamed’s judgment “in all likelihood was affected by the confluence of his ADHD and his associated symptomatology”. However, he emphasised that in expressing that view he was suggesting only that Mohamed’s judgement was impaired, not that he was unaware of his wrongdoing [393] .

The reports of Dr Kearney confirm that Mohamed was diagnosed with ADHD in or about September 2009, for which he was prescribed medication. He stopped taking that medication at some point in 2010 due to its side effects [394] . He was seen by Dr Kearney again in early 2011, at which time it was reported that there had been an improvement in his behaviour since he was originally diagnosed. At that time he agreed to resume taking medication. Dr Kearney’s report of 28 March 2011 indicated a plan to review Mohamed in about 6 to 8 weeks’ time. However there is no further report in evidence which assists in determining the level of any ongoing management of his condition after that time.

The character references attested to (inter alia) Mohamed’s work with the Police Citizens Youth Club at Bankstown and the “Mission of Hope”. Those involved in the administration of those organisations variously described Mohamed as “very compassionate” and a person who “engaged with respect” [395] .

The statement provided by Mohamed’s mother, Raowa Haddad, confirmed the circumstances which led to Mohamed being diagnosed with ADHD. Ms Haddad also made reference to the fact that she had been divorced from her husband in 2008. She said that this had “traumatised Mohamed deeply”, following which he suffered from anxiety and depression. She described her son as being “profoundly remorseful” and expressed a belief that he would not reoffend. Another testimonial described Mohamed as a “very sweet child” who had a “very caring and genuine personality” [396] .

The Crown submitted that Mohamed’s offending was objectively very serious, and fell towards the higher end of the scale. In advancing that submission, the Crown pointed to the immediacy between Mohamed’s making of the document, and its use by the conspirators in the conspiracy, and submitted that this use was a factor of which Mohamed was aware.

The Crown further submitted that the document made by Mohamed clearly recorded preparations for terrorist acts which were advanced, and that by virtue of his plea Mohamed had accepted that he knew of the connection between making the document the advancing the ideology of violent jihad. It was submitted that the document demonstrated an active and real consideration of the type of terrorist act which might be committed, as well as its target, as evidenced by (inter alia) the reference to “going … to the woods and attack the dogs…” [397] .

The Crown submitted that on the whole of the evidence the overwhelming inference was that Mohamed made the document knowing of its connection with the preparation for a terrorist act, in the sense that it was to be read, discussed and added to as the preparation continued. The Crown submitted that as a consequence, the offending was planned and not spontaneous.

Mr Ramage QC, who appeared on behalf of Mohamed, submitted that any assessment of the objective seriousness of the offending was informed by the fact that what Mohamed wrote consisted of 25 words, the meaning of which he submitted was “unclear”. It was submitted that there was no evidence to suggest that in writing what he did, Mohamed was doing anything other than “simply recording his own random thoughts”. It was submitted that the words used could not properly be interpreted as any form of commitment to violent jihad, and that Mohamed’s conduct could not, and did not, give rise to any imminent (let alone actual) threat of injury. Without seeking to minimise the seriousness of the offending, senior counsel submitted that the utility of the document written by Mohamed was minimal, that no person considering preparing for a terrorist act would have been aided by it, that there were no copies of the document made, and that there was no evidence that there was any actual or intended publication of it. It was further submitted that there was no evidence that Mohamed subscribed to, or supported, violent jihad at the time of his offending.

In all of the circumstances it was submitted that having regard to the volume, detail and accuracy of the information contained in the document, the nature and content of the harm which was capable of being caused by the acts described, the limited extent of the publication of the document, and Mohamed’s state of mind, I should conclude that the offending fell at a very low level.

The Crown took issue with the proposition that there was no evidence that Mohamed supported violent jihad at the time of the offending, and submitted that Mohamed’s adherence to such ideology was demonstrated by (inter alia) the very fact of his plea. The Crown submitted that it was completely artificial to suggest the contrary, in circumstances where such ideology was inextricably linked to the commission of the offence. In support of the proposition that Mohamed adhered to such ideology at the time, the Crown pointed, in addition to the plea, to paragraph (61) of the statement of facts [398] which detailed images found on Mohamed’s phone at the time of his arrest. It was further submitted that it was evident from the fact of his writing on the document that Mohamed knew the nature of what was being discussed amongst the conspirators.

It should be emphasised at the outset that Mohamed is not charged with conspiracy. That said, the charge to which he has pleaded guilty has a number of serious aspects. The references to “gorilla (sic) warfare” and “going to the woods and attack the dogs there” [399] are, in terms of their violent nature, self-explanatory. They are not meaningless words. Rather, they are reflective of substantial consideration having been given, not only to the method by which a terrorist attack might be carried out, but also to the target at which such attack might be directed. It is self-evident that when speaking of conducting “warfare” and an “attack”, Mohamed was referring to violent acts, the nature of which were obviously capable of inflicting considerable harm. It is also significant that in writing the words that he did, Mohamed was contemplating an attack on people. So much is clear by the use of the words “the dogs”, which is a clear reference to killing police officers.

The fact that what Mohamed wrote amounted to 25 words is not to the point. The assessment of his offending is informed, not by the number of words used, but by the terms of what was said. What was said was unequivocal. It outlined a plan for an attack. Moreover, it is to be inferred from Mohamed’s presence at Khalid’s premises at the meeting on 17/18 December 2014 that he was aware that the document would be disseminated to others. All of this occurred in circumstances in which Mohamed has admitted, by his plea, knowing of the connection between his making of the document, and the preparation for a terrorist act or acts.

I am also satisfied that at the time of his offending Mohamed adhered to the violent ideology to which I have previously referred. Quite apart from his plea, the material found stored on his phone at the time of his arrest bespeaks no other conclusion. Once again, general deterrence is an important sentencing consideration.

In Ghazzawy I observed [400] that the document written by that offender reflected an unequivocal commitment to violent jihadist beliefs which were manifested in a documented plan to engage in a violent attack. The same observation can be made in respect of Mohamed’s offending which in my view falls in the upper range of seriousness.

The Crown acknowledged Mohamed’s plea of guilty but repeated the submissions previously made regarding the extent of the discount which should be applied. The Crown further submitted that the need in Mohamed’s case for personal deterrence was high.

It was submitted on behalf of Mohamed that in circumstances where he was originally charged with conspiracy, his plea of guilty should be regarded as having been entered at an early stage. It was submitted that the plea was evidence of his contrition and his acceptance of responsibility, and that it would be appropriate to discount any sentence by 20% - 25%, bearing in mind that the plea carried with it the utilitarian benefit of avoiding a long and complex trial.

Mohamed’s position, advanced through senior counsel, was that he did not subscribe to any violent ideology at the time of his commission of the offence. Accordingly, in terms of assessing prospects of rehabilitation, senior counsel submitted that there was no ideology from which Mohamed was required to resile. In any event, it was submitted that Mohamed’s plea supported a conclusion that any belief in the legitimacy of any contemplated terrorist act or acts had been renounced.

Whilst it was acknowledged that Mohamed had a criminal record, senior counsel submitted that it was relatively minor, and was one which reflected his earlier difficulties with drug addiction. Senior counsel emphasised that Mohamed was only 19 years of age at the time of the offending, and was therefore a person to whom the sentencing principles regarding youthful offenders applied, such that emphasis should be upon rehabilitation rather than retribution, and specific and general deterrence. It was submitted, without seeking to minimise the gravity of the offending, that Mohamed had not conducted himself in the way that an adult might, and that he had not committed a crime of such gravity as would moderate the emphasis generally given to rehabilitation in the case of a youthful offender.

Senior counsel’s submissions then turned to the conditions of Mohamed’s custody. He submitted that those conditions were harsh, restrictive and severe, and would be likely to continue for the duration of any sentence which was imposed. It was submitted that to the extent that specific deterrence may be a relevant factor, it was apparent that any such requirement had been already met by the fact that Mohamed had already spent a significant period of time subject to such conditions.

Senior counsel further submitted that having regard to the contents of the report of Mr Watson-Munro, I should find that Mohamed is genuinely remorseful. He submitted that it was open to an offender to adduce evidence of remorse “in any of the usual ways, including through experts and third parties”, and that there was no authority to support the proposition that an offender must give sworn evidence before such other evidence as he might adduce could receive favourable consideration. It was further submitted that the authorities did not support a conclusion that hearsay evidence of matters in mitigation was inadmissible, or was to be given no weight at all.

All of that said, senior counsel conceded that the probative value of Mr Watson-Munro’s report was limited, and that its only real use was that it summarised aspects of Mohamed’s background. Senior counsel went so far as to candidly describe the report as being “in some ways…an inadequate psychologist’s report” [401] . However, it was submitted that on the whole of the evidence, I should be optimistic regarding Mohamed’s prospects of rehabilitation.

The Crown submitted that there was no evidence that Mohamed had renounced any previously held violent ideology and that any expressions to that effect which had been made to Mr Watson-Munro, or anyone else, were deserving of little weight. The effect of the Crown’s submission was that the plea of guilty entered by Mohamed could be regarded as some stepping away from a previously held ideology but that it could be put no higher [402] . It followed, in the Crown’s submission, that any assessment of Mohamed’s prospects of rehabilitation would necessarily be cautious.

The Crown submitted that much of what was contained in the report of Mr Watson-Munro was lacking in any identifiable evidentiary foundation and that in any event, there was nothing in the report to support a conclusion that Mohamed was suffering symptoms of any illness at the time of his offending [403] . The Crown submitted that to the extent that the report provided information regarding Mohamed’s background, and expressed a psychological view about his current position, these were matters that I could properly take into account, but that beyond that, the report was of little probative value.

The various aspects of Mohamed’s subjective case are to be considered by reference to (inter alia) the relevant provisions of s. 16A(2) of the Act.

Mohamed was originally charged with the conspiracy and pleaded guilty to the present offence on 19 July 2017. The principles applicable to the assessment of a plea of guilty, and the discount to be applied, are set out above [404] . However in light of the circumstances surrounding Mohamed’s plea and the submissions made in relation to it, some further matters must be noted.

In R v NP [405] Hodgson JA observed (inter alia) that if a plea is entered a long time after a person is first charged, but at a time when lesser charges are substituted for a greater charge, the advantage is to the administration of justice are less, even though the plea may have been entered at the earliest opportunity [406] . In R v PB [407] Bell JA (as her Honour then was) observed that a plea entered on the day fixed for trial, in circumstances where an agreement had been reached between the parties that the accused would plead guilty to an offence other than that with which he had been initially charged, did not make the plea one entered at the first opportunity.

In all of these circumstances, and taking into account the principles to which I have earlier referred, the appropriate discount to reflect Mohamed’s plea is one of 10%.

In view of the conclusions I have reached below regarding Mohamed’s degree of contrition and his prospects of rehabilitation, there is a strong need in my view for any sentence to reflect considerations of personal deterrence.

Mohamed is presently 21 years of age. He was 19 years of age at the time of the offending. I have noted his criminal history. Although that history contains entries for some offences, none of them include violent offending. The testimonials speak highly of him.

I have previously set out the relevant principles regarding sentencing youthful offenders [408] . At the time of the offending, Mohamed was in excess of the age of maturity and his offending was obviously serious. There is no evidence that Mohamed’s age or lack of maturity was in any way linked to his offending. His youth is therefore of limited weight.

Mr Watson-Munro expressed the view that Mohamed was suffering anxiety and depression. Whilst I have taken that into account, it is also noted that Mr Watson-Munro reported that there was no indication of any major psychiatric disturbance.

Mr Watson-Munro reported that Mohamed had expressed “appropriate remorse” for his offending. What he meant by “appropriate” remorse is not clear. The use of that word clouds rather than clarifies the issue, and is generally unhelpful. The weight to be attached to that expression made to Mr Watson-Munro is limited. However, I accept that Mohamed’s plea is some evidence of remorse.

For the reasons expressed when dealing with the nature and circumstances of the offending, I do not accept that Mohamed did not adhere to violent ideology at the time of his offending. As is the case with the other offenders, his plea of guilty may be indicative of some movement away from that ideology but again, that view is one formed with some caution. The case note to which Mr Piazza was taken in evidence and which recorded Mohamed denying any association with, or interest in, terrorism organisations is, for the reasons I have already expressed, deserving of little weight in the absence of sworn evidence.

Submissions were made regarding Mohamed’s conditions of custody and I have set out the evidence relevant to that issue. I have taken that factor into account in the way I have previously expressed [409] .

Finally, Mohamed has been in custody since 23 December 2015 [410] and any sentence imposed should commence on that date.

The following evidence was tendered in Said’s sentence proceedings [411] :

The facts tendered by the Crown against Said were in the following terms:

Said has no prior convictions.

The affidavit of Mr Piazza set out Said’s conditions of custody which are, generally speaking, consistent with those of the other offenders.

Mr Watson-Munro reported that Said presented as a “co-operative and repentant man” who “specifically chose the description of repentance to reflect his remorse” [425] . Mr Watson-Munro’s report set out Said’s background noting, in particular, that he had been born in Tanzania, that his parents had separated when he was 5 years of age, and that he had been sent to Australia at the age of 12 [426] . Mr Watson-Munro also reported that Said had told him that he was suffering from depression, with symptoms dating back many years, and that those symptoms had escalated since his incarceration [427] . Testing administered to Said confirmed Mr Watson-Munro’s clinical impressions of a depressive disorder.

Mr Watson-Munro reported that Said had repeated “his sense of regret” [428] . He concluded that Said was suffering from a Depressive Disorder, an Anxiety Disorder and features of an Adjustment Disorder arising from his truncated developmental history [429] . He said that the “confluence of these issues” had impacted upon Said’s judgment [430] .

A testimonial provided by Danielle Mahmoud, Said’s guardian for the past 14 years, set out the difficulties that Said had experienced as a teenager after arriving to Australia. Those difficulties led Ms Mahmoud to make the decision to return Said to Zanzibar at the age of 18. After a period of 6 months, Said’s mother contacted Ms Mahmoud following which Said returned to Australia. He found full time employment, following which he left Ms Mahmoud’s premises to live elsewhere. Ms Mahmoud expressed her ongoing support for Said. Similar support was expressed in the testimonial of Ali Iddi Mahmoud.

In a general sense the Crown repeated, as against this offender, the submissions made in respect of Mohamed. However, the Crown emphasised that Said had written both the “AFP Building” document and the “Lithgow Jail” document and submitted that:

The Crown submitted that Said’s offence was committed in circumstances where he was obviously aware that others were to read, discuss and consider the documents that he had made, such that the only available inference was that Said had made the documents knowing of their connection with the preparation for a terrorist act.

Counsel conceded that Said wrote the two documents knowing that they were left in the possession of Khalid, a man he knew to be involved in planning a terrorist act. Counsel also conceded that the nature of what was written by Said in the document had the capacity to influence, in a material way, any person who came into possession of them. That said, counsel submitted that there was no evidence that the documents were examined by any person other than Khalid, and that the potential for further dissemination of the documents was limited given the short time over which they were in existence.

Counsel further submitted that the practical utility of the document was limited in light of its brevity, generality, and the absence of any articulation of a specific methodology. He submitted that the significance of these matters was increased by the fact that Said did not have any expertise in the subject matter about which he wrote.

Having regard to these matters, counsel submitted that Said’s offending could not properly be regarded as being at the higher end of the scale of seriousness, given the “non-specific and non-instructive nature of the documents”. However, counsel accepted that the objective criminality was not “insubstantial”, and had a real capacity to bolster others in their own potential acts of terrorism. Counsel expressly accepted the need for general deterrence.

Said was the author of not one, but two separate documents. That serves to increase his criminality over and above that of Mohamed (and also that of Ghazzawy who was charged with a similar offence). What Said wrote in each case was significant. His references to doing “something major” and “something massive” indicate not only his level of pre-meditation and planning, but the extent of the harm which was capable of being done by the acts about which he wrote.

I accept that the nature and extent of the publication of the document appears to have been limited. However, it is evident from what he wrote that Said was a committed and violent jihadist. In these circumstances, the objective seriousness of his offending is high. Once again, general deterrence is an important consideration on sentence.

The Crown acknowledged that Said was a person with no prior criminal history. The Crown also acknowledged the plea of guilty but emphasised the circumstances in which, and the time at which, it had been entered.

Counsel for Said firstly submitted that the plea of guilty should be assessed as having been entered at an early stage and should thus “attract a substantial discount”. Counsel also emphasised the absence of any criminal record, as well as Said’s relative youth.

In terms of contrition and remorse, counsel pointed to those parts of Mr Watson-Munro’s report in which such expressions were recorded. That said, counsel acknowledged that the weight to be attributed to that evidence was limited, given not only the broad terms in which it was expressed, but also the fact that it was (as counsel put it) “untested hearsay”. Counsel in fact described Mr Watson-Munro’s report as “not particularly helpful” [433] .

Counsel submitted that Said was unlikely to be a danger to the community when he was released, although he conceded that the evidence fell short of establishing that Said had renounced his previously held extremist views. He did however point to the affidavit of Mr Piazza, and the absence in the notes attached to that affidavit of anything to suggest that such extreme views were presently held. Counsel submitted that this evidence, together with the fact that Said had entered a plea of guilty, indicated some movement away from those views. It was submitted that in these circumstances the evidence pointed in a generally favourable direction towards rehabilitation.

Counsel also submitted, again by reference to the affidavit of Mr Piazza, that Said’s conditions of custody were obviously strict. In submitting that this should be taken into account as a mitigating factor, counsel submitted that I should do so on the basis that those conditions would, in all likelihood, continue for the entirety of any sentence which might be imposed.

The Crown submitted that the offence committed by Said required the existence of a particular ideology and that the absence of evidence of renunciation of that ideology necessarily had a bearing upon any assessment of Said’s prospects of rehabilitation. In terms of the report of Mr Watson-Munro, the Crown did not take issue with Said’s background and submitted that the evidentiary value of the report was limited.

The various aspects of Said’s subjective case are to be considered by reference to (inter alia) the relevant provisions of s. 16A(2) of the Act.

The relevant principles as to the assessment of the plea of guilty have been previously set out [434] . The additional observations made in respect of circumstances surrounding the entry of the plea by Mohamed are equally applicable to Said.

In all of the circumstances, the appropriate discount is 10%.

In light of the conclusions that I have reached regarding Said’s prospects of rehabilitation, there is a strong need for any sentence to reflect the requirement for personal deterrence.

Said has no criminal history and the testimonials speak positively of him.

Said was 22 years of age at the time of his offending and is now 25. I have previously set out the principles relating to sentencing youthful offenders. However, Said was substantially in excess of the age of maturity at the time of his offending and there is no evidence that immaturity played any part in his offending. It follows that his youth has little role to play as a mitigating factor.

Clearly, Said has had a difficult personal background which has given rise to the disorders of which Mr Watson-Munro spoke. However, it does not appear that he is in any need of treatment and he retains the support of his guardians.

Mr Watson-Munro noted that Said had chosen to describe his level of remorse as amounting to “repentance”. Counsel conceded, for the reasons that I have already discussed, that the weight to be afforded that part of Mr Watson-Munro’s report is limited. Counsel also conceded that the evidence fell short of establishing that Said had renounced any previously held extremist ideology. As is the case with the other offenders, his plea of guilty may be seen as some movement away from such ideology but the matter can be put no higher than that.

As with other offenders, submissions were made regarding Said’s conditions of custody. I have taken those conditions into account in the manner to which I have previously referred [435] .

Finally, Said has been in custody since 26 May 2016 [436] and any sentence imposed should commence on that date.

In respect of the offender Sulayman Khalid I make the following orders:

In respect of the offender Jibryl Almaouie I make the following orders:

In respect of the offender IM I make the following orders:

In respect of the offender Mohamed Al Maouie make the following orders:

In respect of the offender Farhad Said I make the following orders: