Al-Kutobi and Kiad v R

Court of Criminal Appeal (NSW)|2023-04-03|Before: Kirk JA, Button J, Hamill J, Garling J

HEADNOTE [This headnote is not to be read as part of the judgment] On 9 December 2016, the applicants, Omar Al-Kutobi and Mohammad Kiad, were sentenced for a single offence of conspiring with each other to do acts in preparation for, or planning, a terrorist act, contrary to sections 101.6(1) and 11.5(1) of The Criminal Code Act 1995 (Cth) (the Code). They were both sentenced to 20 years' imprisonment, with a non-parole period of 15 years, to commence on 10 February 2015. In relation to both applicants, the sentencing judge did not explicitly quantify a discount for the utilitarian value of the pleas of guilty, their willingness to facilitate the course of justice, or contrition. His Honour did record a submission on behalf of Mr Al-Kutobi that "a discount in the range of 17.5% to 20% ought to be allowed". The sentencing judge went on to say that he was "of the view that some discount should be allowed to both offenders which is about the bottom of that range", and that "I give full weight to the entry of the plea of guilty by each of the offenders as indicating a willingness to facilitate the course of justice". Finally on this topic, his Honour said, "there is little difference, if any, in the allowance which I make, were I also to consider objectively the utilitarian benefit of the avoidance of a trial". Subsequently, Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 provided that an explicit discount for the utilitarian value of a plea of guilty should be provided when sentencing for Commonwealth offences. The applicants sought leave to appeal against the sentence imposed on them on the ground that the sentencing judge failed to take into account the utilitarian value of their pleas of guilty. The Court upheld the appeal, quashed the sentence and resentenced the applicants (per Button J, Kirk JA agreeing, Hamill J agreeing with additional reasons):

Per Button J, Kirk JA and Hamill J agreeing The present application was based on the decision in Diaz v R [2019] NSWCCA 216, in which the Court upheld the appeal and moved to consider resentence in broadly similar circumstances. This Court subsequently called into question that approach in Garcia-Godos v R [2021] NSWCCA 229 but did not explicitly overrule it as clearly wrong: [12]-[13]. 1. The better and safer course, jointly contended for by the parties, is for this Court to uphold the appeal on the basis of asserted error and move immediately to exercise the sentencing discretion afresh, based on the subsequently clarified principles of sentencing: [15]-[16]. 2. The appropriate discount for the utilitarian discount for the pleas of guilty is 10% each: [74]. Separately, the pleas also indicate some willingness to facilitate the course of justice and were an early part of a developing process of acceptance of wrongfulness on the part of both men: [75]-[76]. 3. Terrorist offending is an attack on the democratic Australian polity, is almost always extremely grave, calls for significant general deterrence, and, in the case of committed offenders, calls for significant personal deterrence and, as necessary, significant incapacitation: [77]. But if the sentencer is convinced that the offence will not be repeated, then incapacitation of itself becomes, if not irrelevant, then unnecessary: [79]. Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360, in Benbrika v R (2010) 29 VR 593; [2010] VSCA 281, DPP (Cth) v MHK (a Pseudonym) (No1) (2017) 52 VR 272; [2017] VSCA 157, Director of Public Prosecutions (Cth) v Besim [2017] VSCA 158, IM v R (2019) 100 NSWLR 110; [2019] NSWCCA 107, considered. 1. Events subsequent to sentence in this case are very significant, including the applicants' experience of onerous conditions of custody during the pandemic, their move to a less secure correctional centre (manifesting an assessment that they do not pose a threat of seeking to radicalise other prisoners) and their public renunciation of their extremist beliefs: [86]-[88]. 2. A lesser sentence is warranted in law and the sentence previously imposed is quashed: [95]. A sentence of 16 years with a non-parole period of 12 years is imposed on each applicant, to commence on 10 February 2015: [97].

Per Hamill J 1. The decision of this Court in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 changed the approach taken by judges sentencing in Commonwealth offences by holding that a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing: [100], [103]. The sentencing Judge did not have the benefit of Xiao v R when sentencing the applicants and took the contrary approach: [104]. Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4, applied. 1. The utilitarian value of a plea involves consideration of objective matters such as the timing of the plea and the saving in court time and should generally involve an identifiable reduction or discount from the otherwise appropriate sentence. The willingness to facilitate the course of justice is concerned with subjective matters and informs the instinctive synthesis of the appropriate sentence; no "discount" is provided: [105]. 2. The material tendered by the applicant fits comfortably into the category of post-sentence evidence that is properly received when an intermediate appellate court is called upon to re-exercise the sentencing discretion: [108]-[109]. Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25, Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied.

JUDGMENT

KIRK JA: I agree with Button J.
BUTTON J:

Error conceded On 9 December 2016, Garling J sentenced Mr Omar Al-Kutobi and Mr Mohammad Kiad (the applicants) for a single Commonwealth offence that they had committed together: see R v Al-Kutobi; R v Kiad [2016] NSWSC 1760. The offence was conspiring with each other to do acts in preparation for, or planning, a terrorist act, contrary to sections 101.6(1) and 11.5(1) of The Criminal Code Act 1995 (Cth) (the Code). The maximum penalty for the offence is imprisonment for life.

The learned sentencing judge imposed an identical sentence upon each of them: a head sentence of imprisonment for 20 years, with a non-parole period of 15 years, to commence from 10 February 2015.
No explicitly quantified discount was given for the utilitarian value of the pleas of guilty of each of the applicants, which had been entered five days before the trial date. The value of those pleas had been reduced by a dispute about facts on sentence that extended over some days and that was resolved against the applicants: see R v Al-Kutobi; R v Kiad at [188] to [193]. Nor was an explicit discount provided for anything arising from those pleas, such as willingness to facilitate the course of justice, or contrition. That approach cannot be the subject of criticism, because at the time the law was in a state of development as to whether or not a discount for the utilitarian value of a plea of guilty should be provided when sentencing for Commonwealth offences.
His Honour, did, however, record a submission on behalf of Mr Al-Kutobi that "a discount in the range of 17.5% to 20% ought to be allowed": at [192]. The sentencing judge went on to say that he was "of the view that some discount should be allowed to both offenders which is about the bottom of that range", and that "I give full weight to the entry of the plea of guilty by each of the offenders as indicating a willingness to facilitate the course of justice". Finally on this topic, his Honour said, "there is little difference, if any, in the allowance which I make, were I also to consider objectively the utilitarian benefit of the avoidance of a trial": Ibid.
Subsequently, of course, the decision of the five judge bench of this Court in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 provided that an explicit discount for the utilitarian value of a plea of guilty should be provided when sentencing for Commonwealth offences.
The application for leave to appeal by both applicants is based upon the following straightforward ground: that the sentencing judge failed to take into account the utilitarian value of the applicants' plea of guilty.
At the hearing of the appeal, members of the Court invited attention to two aspects that may tend against its success.
The first was that the extracts provided by me above show that, in a practical sense, a discount related to the pleas of guilty was provided, albeit for an inapposite reason, and albeit without identification of a specific starting point and ending point. Furthermore, senior counsel for the applicants conceded that, if a discount for the utilitarian value of the pleas had been given, it probably would not have been as large as 17.5% [AT 30.46-47].
In other words, one aspect of the query was whether the sentencing process had in fact miscarried in a way unfavourable to the applicants, in a practical sense.
The second aspect was that the application was based on the decision of this Court in Diaz v R [2019] NSWCCA 216, in which (with the agreement of Gleeson JA and Lonergan J) I had said that the appeal should be upheld and moved to consider resentence in broadly similar circumstances. In the subsequent decision of Garcia-Godos v R [2021] NSWCCA 229, Simpson JA (with Adamson J (as her Honour then was) agreeing with separate reasons; Lonergan J agreeing with Adamson J) called into question the correctness of the approach in Diaz v R: at [7] to [12].
Counsel for the Crown reflected upon those aspects. Even so, he maintained the concession made in written submissions, that error had been established and this Court should move to consider resentence. His approach was that, until Diaz v R is explicitly overruled as clearly wrong, or overruled by a five judge bench, it should be regarded as good law [AT 21.23-28].
Relatedly, his submission was that the utilitarian value of a plea of guilty is not the same thing as one's willingness to facilitate the course of justice, though they relate to the same subject matter. The difference can readily be shown by the fact that the strength of the Crown case is irrelevant to the former, but certainly relevant to the latter [AT 41.38-42.6].
In the circumstances, his submission was that, despite the distinct possibility that, if a utilitarian discount had been provided by the sentencing judge, the outcome would not have been more advantageous to the applicants, the safer course is for this Court to intervene and consider resentence, based upon the subsequently clarified principles of sentencing.
For the reasons summarised above, I agree that the better course - one of abundant caution, and jointly contended for by the parties - is for this Court to uphold the appeal on the basis of the asserted error, and move immediately to consider resentence.

Undisputed first instance findings

Senior counsel for the applicants made it clear that all of the findings of fact and evaluative judgments made by the sentencing judge were accepted as correct. The focus of his submission that a lesser sentence is warranted in law for each of his clients was upon events subsequent to the imposition of sentence.
That concession about the findings of the sentencing judge included matters of fact that were disputed in the proceedings on sentence and determined adversely to the applicants, and which, importantly, remained disputed by both applicants.
I turn then to summarise the salient facts found by the sentencing judge.
Objectively, the indictment averred that the conspiracy existed between 1 January 2015 and 10 February 2015.
The two applicants were friends, living together in a suburb of Sydney. Towards the end of 2014, the two young men had become thoroughly radicalised and were committed to Islamic State.
In a nutshell, that movement rejects the Shiʿa branch of Islam as unrighteous, asserts that Islam worldwide is under attack from the West, and also asserts that that putative unrighteousness and that putative attack must be resisted by force. That resistance can certainly extend to acts of terrorism, a rough working definition of which (seeking to leave aside the complexities of s 100.1 of the Code) could be: ideologically (broadly defined) motivated serious violence against property or persons committed by a non-State actor in order to advance that ideology. As at early 2015, many acts of terrorism, including mass murder, were being committed around the world, committed or instigated or encouraged by Islamic State.
The two applicants were in contact with an Islamic State "mentor". They desired to travel to Syria to fight for Islamic State, and hoped that the mentor would facilitate that. When that did not eventuate, their thoughts turned to committing a terrorist act in this country. Unbeknownst to them, many of their communications with the mentor were being monitored by the Australian security services.
In late January 2015, the applicants had agreed that they would perform "an operation" in Sydney. They constructed an improvised explosive device (IED) for that purpose. The plan in short was to firebomb a Shi'ite prayer hall.
In the evening of 8 February 2015, the two applicants attended at such a location. They were prepared, emotionally and physically, to firebomb that religious building. Unexpectedly, however, an individual exited the building, thereby giving rise to the possibility of serious harm or death if there were others inside. The sentencing judge accepted the evidence of Mr Al-Kutobi that, although they lied to the mentor or as to the reason why the firebombing did not proceed, it was in truth because the resolve of the two men had "buckled": at [77].
The above acts in preparation or planning for a terrorist act were expressly accepted as having been done pursuant to the conspiracy by both applicants in the proceedings on sentence.
A little afterwards, they purchased a hunting knife. They also created a video recorded by Mr Kiad, in which Mr Al-Kutobi was brandishing the knife and in which a machete appeared, and in which both men said such things as "I swear to God, brother today God willing, we will execute the first operation for the soldiers of the Caliphate in Australia" and "I swear to God we will not survive if they survive, God willing". They also prepared a written statement that read "We are the soldiers of the Islamic State … We are here to cut your heads". They communicated with the mentor in a way that strongly suggested that an alternative "operation" of inflicting serious harm or death by way of the use of the bladed items against a person or persons was imminent. The police intervened at that stage. When they entered the apartment, in which both men were arrested, there was playing a notorious and horrific video of a captured Jordanian pilot being burned to death in a cage.
On sentence, the Crown asserted that the above acts also fell within the conspiracy, and that that proposition would be accepted by the sentencing judge beyond reasonable doubt. In contrast, the alternative thesis of the applicants was that they had no real intention of doing harm to others by that stage. Rather, they were simply undertaking those acts in order to impress the mentor, so that he would facilitate their travel to Syria, where they could fight on behalf of Islamic State.
The sentencing judge rejected the submissions for the applicants, and was satisfied beyond reasonable doubt that the implementation of the conspiracy extended to those acts in preparation or planning as well: at [146]. I interpolate that my own opinion is that finding is unimpeachable, and the inferences upon which it was based are irresistible. Even so, to repeat: that finding, although not impugned by senior counsel in this Court, remains disputed by both applicants.
His Honour found that there was no guarantee that the "faintheartedness" demonstrated by the applicants at the prayer hall would be repeated at the subsequent, imminent operation: at [153].
As for objective seriousness, the sentencing judge rejected the Crown submission that the offending was at or close to the worst category. Having said that, the evaluative judgment of his Honour was that it was "above the mid-range": at R v Al-Kutobi; R v Kiad [154].
Subjectively, Mr Al-Kutobi was born in 1991 in Iraq, and was 24 years of age at the time of the offence. His life and that of his family was grossly disrupted by the war that commenced in that country in 2003, and its well-known aftermath, with the result that they eventually fled. He entered Australia in 2009 on a false passport, and became a citizen in 2013. He harboured a deep resentment about the suffering that the war and its after-effects had caused to his family.
His Honour found Mr Al-Kutobi to be intelligent, and explicitly accepted expert evidence that he was suffering from a depressive disorder, and recorded the expert opinion that he also suffered from anxiety and some features of post-traumatic stress disorder.
The sentencing judge recorded that Mr Al-Kutobi gave evidence on oath that he had renounced his previously held support for Islamic State. He had also told the psychologist that, in custody, he had abstained from prohibited drugs, and was hoping to engage in a de-radicalisation program.
On the other hand, his Honour remarked that "it is too early, and I have insufficient information, to reach a definite conclusion about Mr Al-Kutobi's prospects of rehabilitation. In part, that is also because I am being asked to engage in a predictive exercise over what will inevitably be a substantial period of custody without any evidence of the outcome, whether successful or not, of the programs which may be, or else may become available to Mr Al Kutobi whilst he is in custody.": at [163].
The sentencing judge also recorded that Mr Al-Kutobi confirmed on oath the contents of a tendered letter, in which he described the suffering of his family during and after the war, his use of prohibited drugs, and his failed relationships and lack of success in this country. The letter also contained an apology to the sentencing judge, and to the government and community of Australia, and expressed his regret for "everything that I have done", and the hope that he would have another chance to "prove myself to everyone in the community": at [166].
Again, the sentencing judge adopted a cautious approach, and said that "his renunciation of the extreme views… Necessarily has to be treated with some reserve": at [168]. It was also found that various factors, not least the late plea of guilty, "suggest that his change of his previously held extremist views is a relatively recent phenomenon": ibid.
Turning now to Mr Kiad, in the absence of sworn evidence from him, the sentencing judge regarded the following, derived from a psychological report, as of limited weight.
The history provided was that he was born in 1989, and was aged approximately 26 years at the time of the offence. Born in Kuwait, he is of Bedouin background, and suffered exclusion and racism as a result. Otherwise, his upbringing was generally satisfactory. He came to Australia in early 2012, with his new wife pursuant to an arranged marriage, which proved to be unsuccessful. He had been granted permanent residency, which had been cancelled by the time of imposition of sentence. His English as at the date of sentence remained limited. Mr Kiad informed the psychologist that he had been "addicted to cannabis and had tried other drugs": at [174].
The sentencing judge recorded that the psychologist wrote that Mr Kiad had told her that in custody his views had "considerably moderated" (at [175]), and that he no longer wished to go to Syria, nor to otherwise help Islamic State.
The sentencing judge recounted that no specific psychiatric or psychological condition was relied upon. His Honour concluded his remarks about the subjective features of Mr Kiad by quoting from the conclusion of the psychologist, which included reference to his early life of alienation and marginalisation; a resultant strong sensitivity to injustice; a life of under-achievement; depression, isolation and vulnerability as a result of the disappointing outcome of the move to Australia; recourse to illicit drugs, under the influence of Mr Al-Kutobi; the fact that the relationship between the two young men provided "fertile ground" for radicalisation to develop; and the misguided belief on the part of Mr Kiad that service to Islamic State could give his life "some purpose and meaning".
Turning to consider the matters spoken of in s 16A of the Crimes Act 1914 (Cth), the sentencing judge emphasised the finding of objective gravity. His Honour went on to say that, in a democratic, multicultural and pluralistic country like Australia, violent extremism and sectarianism must be demonstrated by the courts to have no place, and that conduct that reflects such ideas must be "taken extremely seriously": at [187].
As for the statutory factor of contrition, his Honour noted that Mr Al-Kutobi tendered a letter, and gave oral evidence confirming it, in which he expressed contrition. Mr Kiad gave no such evidence, directly or indirectly, including through the psychological report, although he did express "some regret for his offending", with the benefit of hindsight: at [194].
It was accepted by his Honour that the pleas of guilty of both men showed some contrition, though the inevitable finding was that, due to the facts dispute on sentence about the second set of acts in preparation or planning, that contrition could not extend beyond what was proposed to occur at the prayer hall.
Turning to the future, his Honour was "unable to form any view about the prospects of successful rehabilitation for either offender": at [197]. Although the sentencing judge expressed the hope of rehabilitation with regard to both men, it was said with regard to both "I cannot take account of such a hope without material which would enable me to conclude that there is a realistic basis for the conversion of that hope into a reliable prediction of successful rehabilitation": at [198].
His Honour referred to general and specific deterrence, and indicated that the sentence to be imposed needed to send a "clear signal that" such offending will be the subject of serious punishment, with the intention that like offending will be strongly discouraged, that discouragement contributing to such offences ceasing: at [199].
His Honour noted that each man possessed no criminal record, and no adverse prior conduct generally.
Finally, as to the conditions of custody then known, it was found that the inevitably restricted regime to which the two applicants would be subjected "will be somewhat more harsh than the general population of maximum-security inmates": at [202]. His Honour made an allowance whereby the sentence imposed would have regard to the "particular harshness of the conditions of custody": Ibid. Having said that, the sentencing judge noted that there was a prospect of those conditions ameliorating, especially if the applicants showed signs of rehabilitation.
Finally, noting the requirement in s 19AG(1)-(2) of the Crimes Act 1914 (Cth) that, for such offending, the non-parole period must be 75% of the head sentence, his Honour determined to impose upon both men - whose roles and participation in the giving effect to the conspiracy were similar, as were their subjective features - an identical sentence, set out at the commencement of this judgment.

Subsequent events, and submissions for the applicants about them

As can be seen from the above, as at 9 December 2016 - a little less than two years after the commission of the offence - the sentencing judge adopted considerable caution with regard to asserted moderation of views on the part of both applicants, and their future prospects. With respect, that approach was impeccable, as things stood then. In contrast, however, this Court has the unusual advantage of knowing how things have developed for both applicants, after them spending more than eight years in continuous custody. I turn now to summarise the evidence in that regard, derived chiefly from the matters emphasised by senior counsel in written and oral submissions.
Conditions of custody: 1. For four years from the date of their sentencing, 9 December 2016, the applicants were held in Area 1 of the High Risk Management Correctional Centre (HRMCC). They were continuously held under those harsh conditions, save for a four-month period in which Mr Kiad was moved to Lithgow Correctional Centre. Even then, it was said, he was held in a similar form of highly segregated custody during this time. 2. From October 2020 until August 2022, both applicants were transferred to Area 2, where they were held under somewhat less restrictive conditions. On 5 August 2022, the applicants were transferred again, this time to Wellington Correctional Centre, their classifications having been reduced to A2. In other words, approaching a year ago, they achieved a commonly encountered level of classification, and were placed in a mainstream gaol.
Impact of COVID-19 on applicants: 1. It was submitted that the increase in HRMCC lockdowns, necessitated due to staff illness and subsequent shortages, significantly intensified the harshness of the conditions in which the applicants were kept. Lockdowns longer than 6 hours resulted in the applicants being confined to their cells for 24-hour periods, not even able to use the individual exercise yard attached to each cell. (WS [33]). Oral evidence from a high-ranking correctional officer in this Court confirmed that the pandemic itself, and its effect on staffing levels even after it had subsided, had a significant negative impact upon the circumstances of incarceration of the applicants (AT 12.47-14.22)
Isolation from family: 1. On behalf of Mr Kiad, it was submitted that he has not been able to speak to his family, all of whom reside overseas, since the COVID-19 pandemic began in early 2020. Inmates at HRMCC must communicate in English, and difficulties sourcing an interpreter has resulted in Mr Kiad's ongoing isolation from his family. (WS [34]) 2. Mr Al-Kutobi's family is also overseas. He has been able to speak with his father and brother on the phone, as they speak English, but has only been able to speak to his mother, through an interpreter, twice since 2019.
(I interpolate that the evidence about their ability to contact their families since their transfer to Wellington Gaol was that communication had been improved, as one would expect in an institution with a much lower level of security.)
Progress towards rehabilitation: 1. Counsel for the applicants argued that both Mr Kiad and Mr Al-Kutobi had significantly improved their prospects of successful rehabilitation since the imposition of sentence. 2. Though each of the applicants had conceded difficulties adjusting to custody, it was submitted that the behaviour of each has improved substantially since sentencing. Mr Kiad's last post-sentence punishment was in August 2021, for destroying or damaging of property. Mr Al-Kutobi's last punishment was in February 2019, for fighting. Each applicant has successfully transitioned from Area 1 of the HRMCC to Area 2, and further to Wellington Correctional Centre. 3. Since transitioning to Area 2, both applicants have engaged in numerous rehabilitation programmes and psychological assessments. Further, the applicants also plan to participate in the Proactive Integrated Support Model (PRISM) program for disengagement from extremist beliefs when it becomes available.
Further, senior counsel for the applicants submitted that both Mr Al-Kutobi and Mr Kiad have now firmly renounced their former beliefs in violent extremism. In the report tendered on resentence of psychologist Dr Seidler (dated 6 June 2022), the following conduct was submitted as proof of genuine renunciation (WS [49]): 1. Explicit rejection of, and withdrawal of support from, Islamic State, as well as denunciation of all forms of violent extremism. 2. Refusal of religious guidance from other inmates (presumably some of whom remain radicalised) at the HRMCC, instead turning to the visiting Imam. 3. Willingness to engage in PRISM referred to above. 4. Respectful behaviour towards custody officers and other inmates. 5. Actively having separated themselves from inmates who support violent extremist ideologies.
Dr Seidler's report also contained evidence of a reduced risk of re-offending by both applicants. On the basis of the VERA-2R risk assessment tool, Mr Kiad was rated a Low risk, and Mr Al-Kutobi a Low-Moderate risk, of future engagement in acts of violent extremism.
Within those generally favourable, positive, and mitigating factors, two discordant notes were accepted to have sounded. The first is that, in March 2018, another inmate of the HRMCC was found in possession of a Nasheed (Islamic song) promoting violent jihad. Furthermore, there was material to suggest that it was written by Mr Al-Kutobi and Mr Kiad. That certainly has the potential to suggest that - albeit approaching six years ago - the two of them remained at the least attracted to extremist positions.
The second negative factor I have already discussed: this Court was asked by senior counsel to approach resentence on the basis that the findings of the sentencing judge were correct, including the finding that, in early February 2015, an act of profound physical violence was imminent, pursuant to the conspiracy. And yet, for some undetermined reason, even eight years later, both applicants cannot or will not accept the truth of that finding. Self-evidently, that remains a matter of concern for this Court on resentence.

Other submissions for applicants

All of the subsequent events sketched above were relied upon by senior counsel for the applicant to submit that, with the benefit of knowledge denied the sentencing judge, a lesser sentence is indeed warranted at law. He expanded on that as follows.
During oral submissions, he emphasised the importance of an offender's progress towards rehabilitation as an important ultimate object of sentencing for terrorism maters. The promotion of rehabilitation, it was submitted, was not only relevant to the question of personal deterrence, but also the protection of the community. An overview of the evolution of the jurisprudence in this area of sentencing was then given, as follows.
Reference was first made to the judgment of Price J (with Spigelman CJ and Barr J providing separate reasons) in Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360, in which it was his Honour said that: "[274]…Rehabilitation and personal circumstances should often be given very little weight in the case of an offender who is charged with a terrorism offence. A terrorism offence is an outrageous offence and greater weight is to be given to the protection of society, personal and general deterrence and retribution." (emphasis added)
Protection of the community and deterrence were similarly accepted as being "foremost among sentencing considerations" in Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 at [591]).
The observations of Spigelman CJ in Lodhi v R, however, provide a view on sentencing through a lens more focused on community protection. At [88], it was stated that: "[88] The crimes under consideration in the present case, in which the conduct must occur with the "intention of advancing a political, religious or ideological cause"…suggest that deterrence is of less significance than usual. In such a context, the element of protection of the community is entitled to greater weight than may otherwise be appropriate." (emphasis added)
It was said, however, that subsequent jurisprudence has not necessarily adopted a rigid view about these factors. It was accepted that, DPP (Cth) v MHK (a Pseudonym) (No1) (2017) 52 VR 272; [2017] VSCA 157 (at [53]), in rejecting a submission that general deterrence should be given lesser weight in circumstances in which a terrorist offender may expect or intend to die in the course of commit committing the offence, it was noted that "preparation and planning for a terrorist act takes some time", and "It is during that time frame that the concept of general deterrence may have some important effect".
It was also accepted as I understood it that, in the same case, that Court did not resile from the importance in sentencing for such offences of the separate significance of general deterrence (whatever the unbending commitment of some such offenders might be expected to be), protection of the community, and incapacitation: see [54] of the same judgment.
Reference was also made to Director of Public Prosecutions (Cth) v Besim [2017] VSCA 158 at [112]; IM v R (2019) 100 NSWLR 110; [2019] NSWCCA 107 at [52] to confirmatory effect.
Those authorities, at first blush, hardly seemed to assist senior counsel for the applicants. But I understood his submission to be that, in the right case - perhaps, in the context of this kind of offending, an unusual case - if there are persuasive signs of rehabilitation at the time of sentence (or resentence), a court can look to that as itself being protective of the community, thereby reducing the emphasis on simple physical incapacitation by way of incarceration. He also submitted that the rehabilitation, and moderation if not reversal of views, of terrorism offenders are significant considerations when determining the extent to which specific deterrence requires weight in the sentencing process. Senior counsel went on to draw upon various cases to illustrate the asserted developing willingness on the part of sentencing judges to view rehabilitation as being able to play these roles, in the right kind of case (see, for example, R v Bayda; R v Namoa (No 8) [2019] NSWSC 24 at [120]-[121]; Director of Public Prosecutions (Cth) v Ali [2020] VSCA 330 at [107]; and, by way of contrast, Khalid v R [2020] NSWCCA 73 at [86])

Submissions for Crown

The Crown submitted that it is well-established that, in sentencing for terrorism offences, subjective and mitigating factors are to be given less weight (WS [53]).
Although it was conceded that particularly arduous imprisonment conditions should ordinarily be taken into account in the determination of sentence, the Crown argued that the applicants are not entitled to any greater leniency here, as the custodial conditions imposed on them were a result of the terrorist offences for which they were each convicted. (WS [56])
The fact that both applicants had experienced some isolation and hardship due to the language difficulties of their families, it was submitted, should similarly be given little weight. The applicants were aware of their families' circumstances and nevertheless decided to engage in criminal behaviour, despite knowing that such conduct could result in their incarceration and consequent isolation in Australia.
The Crown accepted that the impact of COVID-19 on the applicants' custodial conditions is an appropriate sentencing consideration. It was argued, however, that this should be given limited weight in the determination of an appropriate sentence, following Simpson AJA's approach (which was the subject of agreement by Rothman J; Bellew J agreeing, but providing additional reasons) In Smith v R [2020] NSWCCA 181 at [83] (WS [60]): [83] …[The COVID-19] outbreak also caused restrictions within the prison where the applicant is held. These are relevant circumstances to take into account in the sentencing exercise. They have some, but limited, bearing on the selection of an appropriate sentence. (emphasis added)
The Crown also accepted that Dr Seidler's report was generally supportive of a finding that the applicants had improved prospects of rehabilitation. Having said that, it was submitted that both Mr Kiad and Mr Al-Kutobi had not yet taken full responsibility for the offence. As explained above, both continue to deny their intention to carry out a knife attack, contrary to the evidence and conclusions made by the sentencing judge. (WS [52])

Instinctive synthesis regarding re-sentence

I commence my reflection on re-sentence by complying with the law about a utilitarian discount for pleas of guilty. The pleas were entered late. They were also followed by a lengthy disputed facts hearing on sentence that took a number of days. Having said that, the estimate of the trial was between 6 and 8 weeks, and no doubt great deal of time, money, and effort would have been expended if it had needed to have been conducted. I assess the appropriate utilitarian discount as being 10% for each.
Separately, the pleas also indicate some willingness to facilitate the course of justice. The Crown case, in my broad assessment, was certainly strong, and the pleas were entered late. Having said that, the maximum penalty was life imprisonment, the Code in general and terrorism offences in particular have their complexities, and one of the applicants could not speak English. The pleas should not be assessed as merely a grudging acceptance of the inevitable at the last minute, with the result that my sentence reflects some unquantified reduction for this factor.
Finally on the question of whether the pleas demonstrated a measure of remorse, with the benefit of hindsight, I believe that they were an early part of a developing process of acceptance of wrongfulness on the part of both men, one that has reached quite a deep level.
Separately, all of the authorities to which we were taken by both leading counsel about sentencing for offences to do with terrorism were of assistance. Self-evidently, such offending is an attack on the democratic Australian polity, is almost always extremely grave, calls for significant general deterrence, and, in the case of committed offenders, calls for significant personal deterrence and, as necessary, significant incapacitation.
But none of those judgments require further analysis by me now, for the simple reason that none of them are rigidly binding or determinative of this outcome. I say that because ultimately for terrorism offences, like all other offences, each matter must be dealt with on its own facts by the sentencing judge, and there can be no hard and fast rules in the realm of instinctive synthesis.
In particular, I do not accept that incapacitation must invariably play a significant role in the sentencing exercise for such an offence. That is because I believe that incapacitation is about the simple physical prohibition upon the offence in question being repeated, by way of removal from the community through incarceration. But if the sentencer is convinced - for whatever reason - that the offence will not be repeated, then incapacitation of itself becomes, if not irrelevant, then unnecessary. And there are obvious positions upon a spectrum between satisfaction beyond reasonable doubt that such an offence will definitely be repeated, and satisfaction on the balance of probabilities that it will not be.
Turning then to the facts of this particular case, despite its relatively short duration, the gravity of the conspiracy and its subject matter is self-evident. It was the subject of firm commitment by each applicant, and the two acts encompassed by it almost approached completion.
The attack on the prayer hall, if completed, would have been an egregious act of religious intolerance, quite apart from it running the risk of serious injury or death, and quite apart from the destruction of a sacred building, no doubt to the distress of many.
The second act had the potential to constitute horrific fatal bloodshed, the effects of which would have spread far beyond the deceased and their loved ones.
In short, I am content to replicate the finding about objective gravity of the sentencing judge, though on one view it could be described as generous (I do not say that critically).
It is inevitable that denunciation and general deterrence remain of great significance, despite the progress that I believe has been achieved by both applicants.
Subjectively, I give weight to the youth of the applicants at the time of the offence; their difficult and disrupted backgrounds; their isolation and unhappiness in this country at the time of the offending; the notorious way in which extremist movements can take advantage of persons in such a situation; the fact that their joint radicalisation became a vicious circle whereby each exacerbated the other; and the prior good character of each of them.
Events subsequent to sentence are, in my opinion, very significant. Each of them has spent many years in very constrained circumstances of custody, worsened by the inevitable effects of the pandemic. Those conditions of custody were made even more restricted than otherwise, not only in order to protect the health of prison staff and inmates, but also because of simple staffing difficulties. And that very onerous custody has been further exacerbated by the fact that both of them are physically isolated by thousands of kilometres from loved ones, and one of them remains with limited English.
Their movement to Wellington Correctional Centre 10 months ago is, in my opinion, a very positive sign. It shows that those responsible for managing them in custody believe not only that they can be trusted to behave themselves generally in that less secure environment, but also that do not pose a threat of seeking to radicalise other prisoners.
I also think significant their recent public renunciations, contained in two affidavits upon which they were not cross-examined by the Crown. They show that the positions placed before the sentencing judge have been maintained, if not strengthened, many years later. And it is important, I think, that those affidavits, read in open court, could have been published in the mass media. In other words, this Court was provided with rejections of extremism that were open to be being provided to the whole world.
The two discordant notes that I have mentioned are not irrelevant. Having said that, the troubling item was found in 2018 - five years ago, and only three years after they were first incarcerated. Its true provenance, and its true meaning as to their feelings then, is unclear. On balance I am prepared to approach it as possibly showing a vestigial interest, perhaps reignited as a result of stress or trouble in jail, not firm ongoing support. And it certainly does not overwhelm the positive signs that exist, over five years later.
The second constitutes a troubling refusal to face the conceded truth about what the conspiracy encompassed. Certainly, that rules out remorse with regard to the second set of acts done in preparation or planning, and constitutes a worrying refusal to face up to the past. It is possible, I think, that the applicants could not face their loved ones if that truth were personally admitted by them, although they were content for their legal team to conduct the application for leave to appeal without seeking to re-agitate that rejection. The factor is problematic, but I do not believe that it detracts absolutely from all of the other positive material.
In summary, I think that the first signs of moving away from violent extremism that were provided to the sentencing judge 6 ½ years ago have been shown to be sincere, and have borne fruit.
I think that one can approach the future of these two men - now both in their early 30s - with significantly more optimism than the sentencing judge was able to adopt. Even so, the optimism I possess must remain sensibly guarded.
Finally, in my opinion it is appropriate in resentencing in circumstances such as these to demonstrate that sincere rehabilitative progress will be rewarded, even with regard to offending of the utmost gravity. Just as the unacceptability of criminal violent extremism must be reflected in significant sentences, so must movement away from such extremism be reflected in sentencing, if it is reliably established.
In all the circumstances, unusually known to this Court now, well over eight years after the commission of the offence, I propose a starting point head sentence of head sentence of imprisonment for 18 years. Applying a 10% discount to that, one arrives at 16.2 years, which I would round down to 16 years. Statute requires a non-parole period of at least 75% of the sentence imposed, with the lowest point of which I am comfortable. The commencement date should remain unchanged.
It follows that I consider that a lesser sentence is warranted in law, and that this Court should move to quash the sentence previously imposed.
Finally, I believe that the sentence is straightforward, and I would leave it to the amply qualified legal team of the applicants to fulfil s 16F(1) of the Crimes Act 1914 (Cth) on behalf of this Court.

Proposed orders

I propose the following orders: 1. Leave to appeal against sentence granted, and appeal upheld. 2. The sentence imposed on 9 December 2016 is quashed. 3. In substitution, each applicant is sentenced to a head sentence of imprisonment of 16 years, to commence on 10 February 2015, and expire on 9 February 2031, with a non-parole period of 12 years to expire on 9 February 2027.
HAMILL J: I have the advantage of having considered the draft judgment of Button J. I agree with the orders proposed by his Honour and with his reasons. I add the following observations merely by way of emphasis and not to detract from his Honour's careful judgment.

The concession that the ground of appeal is established

The respondent conceded that the single ground of appeal advanced by the applicant was established. Like Button J, I am persuaded the concession should be accepted.
The decision of this Court in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 ("Xiao") clarified - and in reality, changed - the approach taken by judges sentencing in commonwealth offences in terms of whether the utilitarian value of a plea of guilty should result in a specified "discount" or reduction in the sentence. That change of approach occurred after Garling J sentenced the applicants.
The specially constituted five-member bench in Xiao declined to follow the decision in the case of Tyler v The Queen (2007) 173 A Crim R 458; [2007] NSWCCA 247 ("Tyler") "which specifically excludes reference to the utilitarian value of the plea" in federal matters. A majority of this Court in Director of Public Prosecutions (Cth) v Gow (2015) 252 A Crim R 573; [2015] NSWCCA 208 ("Gow") (at [26]-[28], [72]) questioned the underlying reasoning in cases such as Tyler. In particular, the majority in Gow doubted that the decision in Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 limited the extent to which a sentencing court may take into account the utilitarian value of a guilty plea, as distinct from the extent to which the plea reflected an offender's subjective willingness to facilitate the course of justice. However, Tyler continued to represent the general practice followed in New South Wales and did so at the time the applicants were sentenced.
In Xiao, the Court (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum J and Bellew J) articulated the issue in these terms at [167] (with most citations omitted): "The issue raised involves the divergence of views between the decision of this Court in Tyler and the cases which followed it, to the effect that such a discount could not be given, and the decision of the Court of Appeal of the Supreme Court of Victoria, in Director of the Public Prosecutions (Cth) v Thomas [2016] VSCA 237 and the Victorian cases which followed it, which came to a contrary view (see also DPP v Gow). To resolve this issue, a five judge bench was constituted in all three appeals."
Having reviewed the authorities in considerable detail, the Court concluded at [278]: "In these circumstances it is our opinion that in sentencing proceedings governed by s 16A, a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing. To the extent that Tyler and the cases which followed it provide to the contrary, they should not be followed."
As both Button J and I have emphasised, Garling J did not have the benefit of that authoritative statement when he sentenced the applicants. That his Honour took the contrary approach to the issue is clear from the italicised portion of the following statement in the sentencing judgment at [191]: "There is conflicting legal authority as to whether, when applying the provisions of s 16A(2)(g) of the Act, the Court is entitled to have regard to the utilitarian benefit of the plea of guilty, objectively ascertained, as well as, or instead of, the willingness of an offender to facilitate the course of justice, subjectively ascertained, or both. Some judgments suggest that the difference between these two expressions is merely semantic. It is not for me in the course of this sentence to engage in a resolution of those differing authorities. I am bound to apply the authority of Tyler v The Queen [2007] NSWCCA 247; (2007) 173 A Crim 458. However, even applying that authority, there is very little difference, if any, in the particular circumstances of this case between the discount which would be allowed if one was considering the offender's willingness to facilitate the course of justice, or the objectively ascertained utilitarian value of the plea. That is because of the fact that the plea was late and was only entered a few days before trial. The determination of disputed facts meant that a number of witnesses were called to give evidence."
His Honour's observation that there was "very little difference, if any" between the utilitarian value of the plea and its reflection of an offender's willingness to facilitate the course of justice, can only be taken so far. It involves a value comparison between two incommensurate matters. The utilitarian value of a plea involves consideration of objective matters such as the timing of the plea and the saving in court time and should generally involve an identifiable reduction or discount from the otherwise appropriate sentence. The willingness to facilitate the course of justice is concerned with subjective matters and informs the instinctive synthesis of the appropriate sentence; no "discount" is provided. The distinction is exemplified by the re-sentencing exercise undertaken by Button J in this appeal.
For those reasons, which are designed to complement rather than augment those provided by Button J, I am satisfied that the respondent's concession must be accepted. The single ground of appeal is established and the Court should exercise the sentencing discretion afresh. If a less severe sentence is warranted, leave should be granted and the appeal allowed.

The admissibility and significance of the evidence tendered "on the usual basis"

In Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 the High Court considered the admissibility of evidence on a criminal appeal where such evidence was not tendered before the sentencing Judge. The Court (French CJ, Kiefel, Bell, Gageler and Gordon JJ) made it clear that there are restrictions on the tender of new evidence on an appeal, and that an offender is generally bound by the conduct of the case before the sentencing court. However, the Court confirmed at [11]: "It is accepted, however, that the appellate court may receive evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. Evidence of this description is routinely received by the Court of Criminal Appeal on the limited basis that it may be taken into account in the event the Court comes to re-sentence."
Again, at [14], the Court noted the exception for "post-sentence conduct": "Forensic choices are made in the conduct of the offender's case at the sentence hearing. These include the material that is to be relied upon in mitigation of penalty and whether any of the facts are to be contested. The circumstance that the sentencing judge's discretion is vitiated by House error does not, without more, provide a reason for not holding the offender to these forensic choices. Justice does not miscarry by reason of the refusal to allow an appellant to run a new and different case on the question of re-sentence. Exceptional cases apart, the question of whether some other sentence is warranted in law is answered by consideration of the material that was before the sentencing court and any relevant evidence of post-sentence conduct." (My emphasis).
The material tendered on behalf of each of the applicants fits comfortably into the category of evidence that is properly received when an intermediate appellate court is called upon to re-exercise the sentencing discretion in accordance with the decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
As the judgment of Button J demonstrates, the evidence in this case has real significance to several important matters relevant to sentence. Each of the applicants has renounced their extremist views, made good efforts at rehabilitation, and has endured harsh conditions of incarceration until relatively recently. I agree with Button J that the evidence means that some of the findings made by Garling J should be revisited to the benefit of the applicants. I state specifically my agreement with what Button J has written at [78] about the euphemistic concept of the "incapacitation" of terrorism offenders in circumstances where the evidence of rehabilitation is strong and the offender has renounced their previously held extremist views. It remains the case that the protection of the community in such cases, along with deterrence and denunciation, must be given significant weight in the sentencing process.

Concurrence in re-sentencing

I have nothing to add to Button J's clear and comprehensive explanation of, and reasons for, the sentences that should now be imposed on the applicants.
I concur in the orders his Honour proposes.

Amendments 10 July 2023 - The addition of post nominals to counsel on the cover sheet. 11 July 2023 - Paragraph 109 line 4: corrected the paragraph number. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 July 2023

(2019) 100 NSWLR 110

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