Al Maouie v R

Judgment (8 paragraphs)

[1]

Judgment

PAYNE JA: I agree with Harrison J.
ROTHMAN J: I agree with orders proposed by Harrison J and generally with his Honour's reasons. Apart from that which follows, I agree fully with his Honour's reasons.
I do not consider that the words used by the applicant are incomprehensible. Nor do I accept, when dealing with a document compiled by a number of persons, that the words used by one of them should be read otherwise than in the context of the document as a whole, unless it can be said that the relevant author was unaware of the document as a whole.
Other than in those respects, I agree fully with the reasons of Harrison J. The above issues do not, in my view, affect the correctness of the sentence proposed by Harrison J. The maximum sentence for this offence is 15 years imprisonment. Given my agreement with Harrison J as to the appropriate assessment of objective seriousness, I consider the sentence proposed by Harrison J to be most appropriate for the offence and the offender.
HARRISON J: On 19 July 2017, Mohamed Al Maouie and his co-accused Farhad Said pleaded guilty to an offence contrary to s 101.5(1) of the Criminal Code Act 1995 (Cth) in the following terms: "Between about 17 December 2014 and 18 December 2014 at Sydney in the State of New South Wales, did intentionally make a document and the document was connected with the preparation for a terrorist act, knowing of that connection."

Objective seriousness

The applicant was sentenced by Bellew J upon the basis of a statement of agreed facts, subject only to the applicant's insistence that he did not adhere to a religious ideology of violent jihad at the time of the offending. The statement of facts specified the particular ideology held by the applicant as being Wahhabi-Salafism that inspires ISIS, Al Qaeda and similarly minded groups and their supporters. His Honour found that the applicant was an adherent to that religious ideology at the time of the offending as contended by the Crown. The applicant does not challenge that finding in this Court.
His Honour set forth at [236] the agreed facts in considerable detail in his remarks on sentence. With the following exceptions, it is unnecessary to repeat those facts here: "2. With the intention of advancing the religious ideology of violent jihad, the offender made a document connected with preparation of terrorist acts. Those proposed terrorist attacks were recorded in handwritten documents, described in the handwriting poster and in particular the offender's document as set out below. The Document 3. The document the subject of the charge has been referred to in Crown documents concerning the related conspiracy charges as: • Document 4, Item I373, the "Gorilla Warfare" Document. The document was located on 18 December 2014, in the garage used by and identified as the bedroom of Sulayman Khalid (a conspirator named in related proceedings), at 13 Berry Street, Regents Park. 4. Of the total of six handwritten documents found in Khalid's home, one contains writing by the offender (the 'Gorilla Warfare' document). The document, as the offender knew, was connected with the preparations for a terrorist act both on its face and in the circumstances of its creation. The document demonstrates an active and real consideration of the type of terrorist act contemplated, and its target. It outlines a plan for 'gorilla warfare' and an attack against "the dogs". The forensic evidence shows that the document was handed to others, apart from the author. Writing was added to the document by one or more people other than the offender. The inference is that the document was read, discussed and added to as the discussion continued. 5. The document contains the following handwritten entries, the [bold] portions of which were written by the offender (with the initial portion, italicised, identified as written by Ibrahim Ghazzawy, a conspirator named in related proceedings before his plea of guilty to one count of s 101.5(1) of the Code, that is, 'making documents likely to facilitate a terrorist act'): 'The plan is gorilla [sic] warfare (illegible) we are going to go to the woods and attack the dogs there, Blue Mountains and the surrounding forests. Who are we going to find there? [insufficient sample for identification] * Hijra out of NSW - 7 * Abo land * Dawah to Abos = Army * Army = Buildings, Fortresses, Plans etc * Start Slowly (under cover) * Own world * Start small = HUGE"
The nature and objective seriousness of the applicant's offending was dealt with by his Honour at [251]-[254] of his remarks on sentence as follows: "[251] 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' 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. [252] 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. [253] 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. [254] In Ghazzawy I observed 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 contended in this Court that his Honour's findings about the context and objective seriousness of the applicant's offending were appropriate. In support of that contention, the Crown submitted as follows.
In determining the appeals of Ibrahim Ghazzawy and Farhad Said, this Court was required to assess the objective seriousness of those offenders' conduct. It is submitted that this Court's determination in those cases that the objective seriousness of the offending was high supports the contention that the objective seriousness of the applicant's similar offending in the same context was also in the upper range of seriousness.
In Ghazzawy v R (Cth) [2021] NSWCCA 70 at [53], Hoeben CJ at CL concluded as follows: "[53] My independent exercise of discretion when assessing the objective seriousness of the offence is very much in line with the conclusions arrived at by the sentencing judge. This is particularly so when regard is had to the purpose of the statements, the subjects of the charge. These, it seems to me, were largely used as a rallying cry to encourage the Khalid group to engage in terroristic activities on a large and significant scale so that even if the members of the group were killed and suffered martyrdom, they would have achieved something 'great'."
In Said v R [2019] NSWCCA 239 at [70]-[81], Hoeben CJ at CL reviewed the rival contentions about the objective seriousness of Mr Said's conduct and stated in conclusion at [82]: "[82] It follows from the above that I assess the objective seriousness of the offending as high. As the Crown submitted in this Court, the threat posed by these documents was not only their function as planning documents but how they operated as an exhortation to the group to engage in a major terrorist activity. Looked at in that way, the fact that the documents were only disseminated to the Khalid group does not necessarily reduce the seriousness of the offending. The applicant was in effect urging his colleagues as a group to carry out a major attack and not be content with a single attack. The limited dissemination of the material in the documents added to the seriousness of the offending in that there was a greater likelihood of them being acted upon by a small group. This is to be contrasted with the unlikelihood of them being acted on if they had been widely published."
In agreeing with the orders proposed by Hoeben CJ at CL in Said, White JA held as follows at [87]: "[87] I agree with Hoeben CJ at CL's assessment that the objective seriousness of the applicant's offending is high. With respect to Hamill J it is not to the point that the documents the applicant prepared lacked sophistication or were not widely distributed. They reached their intended target and there is no reason to think that their lack of sophistication would have lessened their persuasive force. The applicant was urging his co-offenders to commit terrorist acts on a large rather than small scale. If carried out, they could be expected to result in multiple casualties."
Bellew J described the matters that he considered were important in this context at [25] - [26] as follows: "[25] Matters relevant to assessing the objective seriousness of offending of this nature will include: (i) the degree of planning, research, complexity and sophistication involved, together with the extent of the offender's commitment to carry out the act(s) of terrorism; (ii) the period of time involved, including the duration of the involvement of the particular offender; (iii) the depth and extent of the radicalisation of the offender as demonstrated (inter alia) by the possession of extremist material and/or the communication of such views to others; and (iv) the extent to which the offender has been responsible, by whatever means, for indoctrinating or attempting to indoctrinate others, and the vulnerability or otherwise of the target(s) of the indoctrination, be it actual or intended. [26] In light of the charge to which Mohamed and Said have pleaded guilty, the following additional factors are relevant: (i) the volume, detail and accuracy of the information contained in any document(s); (ii) the nature and extent of the harm capable of being caused by the act(s) described within the document(s); (iii) the nature and extent of the publication of the document(s); and (iv) the state of mind of the offender."
The applicant submitted that the objective facts as to what he actually did are somewhat limited. He was not charged with being part of a conspiracy, so that the conduct of his co-offenders in the Khalid group do not attract any liability on his part. Even though the applicant now concedes that he adhered at the time of the offending to the religious ideology of violent jihad, and that he pleaded guilty to a serious offence, his was not a serious example of that offence.
The applicant emphasised that his contribution to the "Gorilla Warfare" document was a mere 25 words. Read in the context of the balance of the document, he submitted that his contribution was "fairly meaningless" and certainly not such as to set out a plan capable of being read, understood or implemented by others. Moreover, the document was not published beyond members of the Khalid group. His contribution to the note and any other conduct by him does not reveal any planning, research, complexity or sophistication. As charged, the applicant's conduct did not span more than a single day. Although the applicant's mobile phone contained "terrorist images" including images of executions, ISIS flags, weapons, Australians associated with terrorism and the applicant firing a pistol at a pistol range, a presumably legal activity, there is no detail in the agreed facts about the volume or amount of such material. Finally, there was no evidence or suggestion that the applicant had been responsible, by whatever means, for indoctrinating others or of him attempting to do so.
The applicant submitted that the objective seriousness of his offending fell "around the midrange, not at the upper range". The following exchange in the course of the hearing in this Court further served to emphasise the applicant's position on this issue: "HARRISON J: Do I understand you earlier to have said that you intend to plead objective seriousness of Mr Al Maouie, he should be in the mid-range. ANDERSON: At the very top. HARRISON J: I only ask that question to be fair to you in the light of the fact that as you've helpfully indicated he wrote 25 words, largely meaningless, in a space of 45 minutes contributing to this rather larger document. ANDERSON: At worst he could be found to be in the mid-range, but my submission is it should be less than that. HARRISON J: Well I don't want to press you. What do you mean by less than that? ANDERSON: I would put it in the low-range. HARRISON J: I'm not being provocative. It's important that if you draw attention to those matters and you have a view, to which we're entitled to have regard, I'd be happy for you to express it and you have. ANDERSON: Your Honour I think when one looks at the limited time, the limited action that he's done, it's extraordinary that his Honour reached the view that he did. But certainly low range would be my submission. Mid-range at the absolute top."
It will be recalled that his Honour's assessment of the objective seriousness of the applicant's offending was in "the upper range of seriousness". That conclusion has not been challenged as a separate ground of appeal asserting that his Honour erred in arriving at that conclusion. So much emerges from the following exchange: "PAYNE JA: Subject to the Xiao error, are there any findings made by his Honour that you challenge? ANDERSON: No factual finding but I do challenge, and I hope it's raised in my written submissions, the manner in which his Honour has assessed objective seriousness. ROTHMAN J: You do raise it in the written submissions, you don't but you don't actually use it as a ground of appeal. ANDERSON: No, it's not a discrete ground of appeal but-- PAYNE JA: Because we're going straight to resentencing, the logic is DL says unless raised on the resentencing we should approach the factual findings made, you said you have raised it and the Crown has a chance to deal with it and we'd come to a different conclusion about objective seriousness. ANDERSON: Yes, that's exactly right. It's not so much the facts that his Honour's found that are problematic, it's more the manner in which his Honour has dealt with them. ROTHMAN J: And DL related to the findings of fact."
The burden of the applicant's contentions is that in exercising the sentencing discretion afresh, we would come to a different conclusion. This is an important distinction for the reason that the assessment of objective seriousness is well understood to be quintessentially a matter for the sentencing judge and not amenable to variation on appeal in the absence of a discrete error or the successful demonstration of manifest excess. In the events that have occurred, the matter is at large in this Court following Kentwell v The Queen.
In my opinion, largely for the reasons identified by the applicant in this appeal, I would assess the objective seriousness of the offending conduct as in the mid-range. In forming that view, I have not ignored the comments of Hoeben CJ at CL and White JA in Said v R that his conduct was of a high level of seriousness.
It will be recalled that Mr Said's conduct, as described by Bellew J at [29], was relevantly as follows: "40. Said's handwriting was on two of the six documents found at the offender's premises, the 'AFP Building' document and the 'Lithgow Jail' document. In the 'AFP Building' document, Said's writing included the following: 'Helicopters and all that so we are going to fight till shahada anyway so we might as well do something major'. In the 'Lithgow Jail' document Said's writing included the following: 'Why don't we target like a big organisation eg: headquarters of police force, ASIO etc but something massive ... If we are want to go all out them istishhad goes in then the rest go in to finish things off'."
His Honour assessed the seriousness of Mr Said's conduct in the following way: "[288] 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. [289] 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."
Without derogating from either Bellew J's characterisation of Mr Said's conduct, or the concurring opinion of the majority in his case in this Court, the applicant's conduct was a far less significant contribution to the document. It was less significant in the sense that it was considerably less articulate in its terms and, on one available view, incomprehensible standing alone. I am also not satisfied that it achieves much more significance when considered contextually. The applicant's words do not in terms incorporate or adopt the preceding words, of which Mr Ghazzawy is the author, other than by the fact that they follow on the page. Having regard to the actual words written by the applicant, that is a fairly frail connection. It becomes even more tenuous in my view when account is taken of the fact that the words written by the applicant seem to me to be incapable of conveying any discernible meaning to anyone unless tied to the preceding entry, a doubtful proposition at best.
My opinion may not in fact be as controversial as it appears at first sight. Although there are manifold reasons for distinguishing between the applicant and Mr Said, his Honour ultimately imposed a different sentence on Mr Said to reflect at least to some degree the differing roles they each played. That difference by itself ought in my view to lead to a characterisation of the objective seriousness of the applicant's conduct as in the mid-range.

New material

The applicant seeks to rely in this appeal on material that has come into existence since the imposition of the original sentence. That material consists of an affidavit of the applicant's mother Raowa Haddad affirmed on 24 January 2022 and an affidavit from his solicitor Stephen Eccleshall affirmed on 21 January 2022. The Crown did not oppose this Court receiving that material for the purpose of re-sentencing. Among other things, that material reveals the following.
The applicant has been at the high-risk management unit and classified as an extreme high-risk inmate for virtually the entire time of his sentence up until last year when he was transferred to South Coast Correctional Centre. Approximately twenty percent of the time that he has spent at the HRMU has been spent in lockdown in his cell. That cell is two metres by three metres wide. This has led to an extremely difficult custodial sentence. His classification has now been changed to A2, although he is still regarded as a maximum security prisoner. Since moving from the HRMU, he was permitted to have his first contact visit in six years.
The applicant is now considered to be in the low risk category for violent re-offending. His overall risk profile for extremist violence offending/re-offending has been assessed as being in the low to moderate range.
The applicant continues to maintain that he has never subscribed to an ideology that would talk about violence, contrary to the agreed facts. However, he does not support violence in Australia and would not want to see any violence perpetuated here as an act of terrorism. The applicant considers that in the right circumstances overseas, if there were a caliphate, he would participate in the fighting.
Mr Eccleshall's affidavit reveals that the applicant has been involved in three breaches of prison discipline and that he was sentenced in the District Court on 25 January 2019 for the offence of "destroy property in company using fire." In an internal report by prison authorities contained in the material annexed to the affidavit, the following is recorded under the heading "Institutional Behaviour": "24 Mr Al Maouie has been housed at the HRMCC since he entered custody due to his AA security rating and offences. He has been involved in a number of incidents in custody, the most serious of which occurred on 26 June 2017 and involved his assisting another inmate in setting fire to a cell which resulted in significant damage. He was charged and convicted for this offence and received a sentence of 22 months. 25 Mr Al Maouie related he had participated in support of his co-offender, who he says was the primary instigator and who was apparently protesting at his perceived treatment by a staff member. Case notes suggest that following his involvement in the cell fire he demanded a replacement Koran, threatening to incite further violence and fires at the HRMCC. Mr Al Maouie acknowledged that he had not thought through the potentially serious consequences of his actions in assisting in lighting the fire, and had been angry to learn that his Koran had been damaged, in his view unnecessarily."
As a result of his sentence, the applicant's non-parole period has been increased by three months.
The applicant has the support of his mother. She considers that he has matured. The applicant has a home available to him on his release.
This new material raises at least two matters of significance.
First, the extent to which an applicant's conditions of incarceration can or should be taken into account in determining the appropriate sentence. It may be accepted that a court can consider such conditions, and the extent to which they might be harsher than those experienced by the general prison population, as a matter that may, but will not necessarily or inevitably, provide a basis for reducing the sentence to some degree or support a finding of special circumstances: R v Farhad Qaumi [2017] NSWSC 774 at [162]; R v Durocher-Yvon (2003) 58 NSWLR 581; [2003] NSWCCA 299 at [19]. There must, however, be evidence of the conditions and a sentencing judge cannot assume that the conditions will be harsher based simply on the category of inmate into which the offender fits: Qaumi at [162]. These considerations are of limited weight in cases where the harsher or more onerous conditions are a function of the nature of the offending in question.
The new material relied upon by the applicant in this case supports the fact that his custodial conditions in the HRMU were particularly onerous. However, in the sentence proceedings before Bellew J, reliance was placed by the applicant upon the anticipated conditions of incarceration he would encounter while serving his sentence as well as those already experienced by him on remand.
In Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73 at [101]-[104] I adverted to this issue in the following terms: "[101] This case is but one example among several similar cases in this Court in which the custodial conditions of offenders charged with or convicted of terrorism offences are raised for consideration in the assessment of the reasonableness or otherwise of a sentence that has been imposed. It is well understood that offenders receive sentences of imprisonment as punishment: they are not imprisoned for punishment. [102] Imprisonment is the most severe sanction for any crime that can be imposed by our system of justice. Terrorism offences are potentially among the most serious crimes with which the courts have to deal. The maximum penalties prescribed for such offences, including life imprisonment, reflect this fact. [103] Any term of imprisonment, including what some may consider to be a lenient sentence, is a severe punishment. It cannot be doubted that sentences must reflect the need for general and specific deterrence, denunciation, retribution and the requirement in an appropriate case for the protection of the community. Sentences must also recognise and encourage the existence of a particular offender's prospects of rehabilitation. [104] If rehabilitation is to retain its importance as a significant element of the sentencing equation, it is equally important that custodial conditions that are (arguably) excessively punitive or gratuitous should not frustrate the prospect that an offender might emerge from custody less dangerous and less committed to some fanatical ideology than when he or she first entered the prison system. It is for example difficult to imagine how unnecessary shackling, excessive deprivation of exercise or restricted access to educational programs, limitations upon or withdrawal of contact visits, or any restrictions that set terrorism offenders apart from those in the general prison population, are ever likely to encourage renunciation of violent fundamentalism. There is in my opinion a very real risk, except where it is necessary for the safety of corrections staff or the protection of the wider community, that the differential treatment of terrorism offenders, or even the undiscriminating assessment of the risks posed by individual offenders, may only serve to affirm and entrench dangerous and unacceptable views."
I consider that to the extent to which the applicant's custodial conditions are established by the material upon which he relied at the sentencing hearing, and the new material relied upon in this Court, to be more onerous than those experienced by the general prison population, it is appropriate to take it into account on re-sentence.
Secondly, the significance or otherwise of the applicant's behaviour whilst in custody. The Crown submitted in this Court that the new material tendered by the applicant, which necessarily includes evidence of his disciplinary record in gaol, would not cause this Court to take a substantially different view of his prospects of rehabilitation than that taken by Bellew J. Limited to the disciplinary material, I consider that it does not materially inform the applicant's prospects of rehabilitation and I would not be minded to give it any particular weight. On the one hand, the applicant has already been dealt with for the fire offence and sentenced accordingly. On the other hand, I remain of the view that with some obvious exceptions, of which the applicant's custodial record is not one, prison infractions are of very little assistance to a sentencing tribunal. My remarks in Quinlan v R [2021] NSWCCA 21 at [35]-[36] should be noted: "[35] In my view, having regard to the progress that Mr Quinlan has made while in custody, particularly his documented success in overcoming his former disabling drug use, Mr Quinlan's prospects of a successful return to society have significantly increased. I would assess Mr Quinlan's prospects, nearly two and a half years since her Honour's assessments were made, as good. [36] In expressing that view, I have specifically taken account of the fact that Mr Quinlan has committed some offences while in custody. However, it does not seem to me that these are matters that bear upon the present assessment of Mr Quinlan's rehabilitation prospects. He has been incarcerated now for what I consider to be a significant period. The custodial environment is difficult and challenging for all inmates at the best of times. The conditions under which prisoners are expected and required to survive in close contact with other inmates is not always conducive to calm and peaceful interactions, where the deprivation of liberty and the imposition of restrictions often operate disproportionately to magnify or distort responses to what might otherwise be matters of little importance. …"
I do not consider that the applicant's custodial record helpfully informs his prospects of rehabilitation and I propose to put it to one side.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (8 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (14)