Atai v R

Court of Criminal Appeal (NSW)|2020-06-02|Before: Bathurst CJ, Price J, Adams J, James AM, Johnson J

Judgment

BATHURST CJ: Milad Atai (the applicant) pleaded guilty on 18 May 2018 to the following charges contained in an indictment dated 16 May 2018: Count 1: "Between about 6 August 2015 and about 2 October 2015 at Sydney and elsewhere in the State of New South Wales, did aid, abet, counsel or procure the commission of an offence by Farhad Jabar Khalil Mohammad against s 101.1(1) of the Criminal Code (Cth), namely that Farhad Jabar Khalil Mohammad did commit a terrorist act… Contrary to sections 11.2(1) and 101.1(1) of the Criminal Code (Cth)"; Count 2: "Between about 1 September 2015 and about 1 October 2015 in Sydney and elsewhere in the State of New South Wales, did intentionally make funds available to a terrorist organisation, namely Islamic State, knowing that the organisation was a terrorist organisation. Contrary to section 102.6(1) of the Criminal Code (Cth)"; Count 3: "Between about 29 December 2015 and about 22 March 2016 in Sydney and elsewhere in the State of New South Wales, did intentionally make funds available to a terrorist organisation, namely Islamic State, knowing that the organisation was a terrorist organisation. Contrary to section 102.6(1) of the Criminal Code (Cth)".
In addition, a further offence was taken into account under s 16BA of the Crimes Act 1914 (Cth). This was that between about 6 August 2015 and about 22 March 2016, the applicant was intentionally a member of a terrorist organisation, namely Islamic State, knowing that the organisation was a terrorist organisation, contrary to s 102.3(1) of the Criminal Code (Cth). The offence the subject of count 1 was subject to a maximum penalty of life imprisonment, whilst the offence the subject of counts 2 and 3 was subject to a maximum penalty of 25 years imprisonment. The offence taken into account under s 16BA of the Crimes Act, if prosecuted separately, carried a maximum penalty of 10 years imprisonment.
On 23 November 2018 the sentencing judge imposed the following sentences on the applicant: 1. For the offence the subject of count 3, a term of imprisonment of 9 years commencing on 22 March 2016. 2. For the offence the subject of count 2, a term of imprisonment of 10 years and 6 months commencing on 22 March 2019. 3. For the offence the subject of count 1, taking into account the offence under s 102.3(1) of the Criminal Code for the purpose of s 16BA of the Crimes Act, a term of imprisonment of 30 years commencing on 22 March 2024 and expiring on 21 March 2054.
The sentencing judge, in accordance with s 19AG of the Crimes Act, fixed a single non-parole period of 28 years and 6 months commencing on 22 March 2016 and expiring on 21 September 2044. The head sentence of imprisonment imposed was 38 years.
The applicant has sought leave to appeal against his sentence.

The sentencing judgment

The sentencing judge carefully summarised the factual background giving rise to the offences, the applicant's subjective circumstances and the other matters required to be taken into account under s 16A of the Crimes Act. As can be seen from the grounds of appeal, apart from the complaint that the sentencing judge failed to take into account the applicant's youth, no issue was taken as to the manner in which he dealt with each of these issues.
The sentencing judge noted that the applicant was born in Iran in January 1996. His parents were both of Afghan ethnicity being of the Sunni Muslim faith. He noted that the applicant went to school at Merrylands Public School and Parramatta High School, gaining his Higher School Certificate in 2014. The applicant married Cody Clarke (Amira Atai) in an Islamic ceremony in July 2015, and there is a son of the relationship who, at the time of sentence, was aged two years.
His Honour noted that at the time of commission of the terrorist offence on 2 October 2015, the applicant was 19 years old and had no prior criminal history.
The sentencing judge described the events which gave rise to the offences the subject of counts 1 and 2. At about 4.30 pm on 2 October 2015, Farhad Mohammad (Farhad), a 15-year old, walked up behind Mr Curtis Cheng, who was leaving the NSW Police Headquarters in Parramatta after completing work as an accountant. Farhad shot Mr Cheng in the back of the head with a .38 special calibre Smith & Wesson model British service revolver (the revolver). Mr Cheng died instantly. Farhad then exchanged gunfire with NSW Police Special Constables and was shot dead.
There was found inside a pocket of Farhad's clothing a note written by him that made it clear that the act of killing Mr Cheng was a religiously inspired act of violence carried out in support of Islamic State. The loaded revolver used to commit the terrorist offence was given to Farhad by Raban Alou (Alou) at the Parramatta Mosque less than one hour before the attack. The weapon was sourced by Alou from Talal Alameddine (Alameddine) earlier in the afternoon. It should be noted that both Alou and Alameddine have been sentenced for their part in the commission of the offences and their appeals disposed of by the Court of Criminal Appeal: see Alou v R (2019) 101 NSWLR 319; [2019] NSWCCA 231; Alameddine v R [2020] NSWCCA 232.
The sentencing judge noted that Shadi Mohammad (Shadi), Farhad's older sister, had departed Australia for Syria on 1 October 2015. His Honour noted that the applicant had provided funding and assistance in September 2015 for Shadi to leave Australia utilising the applicant's contact in the Middle East, Ahmad Merhi (Merhi), who, as the applicant knew, was involved in Islamic State activities at the time. He noted that the applicant's conduct in this respect gave rise to the offence contained in count 2. His Honour found that the applicant had provided telephone numbers to Shadi prior to 22 September 2015 so that she was in a position to communicate with Merhi for the purpose of her planned journey which was intended to assist and support Islamic State activities in Syria.
The sentencing judge noted that by the time of the offences, the applicant believed that Islam throughout the world was under attack and that there was a religious obligation to respond by means of violent jihad. He noted that the applicant on the sentencing appeal stated that he was a supporter of Islamic State before September 2014 and had sworn an oath of allegiance to Islamic State. In that way, he became a member of a terrorist organisation so as to constitute the offence to be taken into account on sentence for count 1.
The sentencing judge referred to the execution of a search warrant at the applicant's home on 18 September 2014 as part of a terrorist investigation known as "Operation Appleby". He noted that forced entry to the unit was obtained and the applicant was physically detained for a short period with his hands being bound. However, he also noted that no complaint was made by the applicant at that time nor did the applicant appear to be disturbed or upset.
In that context, the sentencing judge concluded that to the extent that the applicant sought to utilise the execution of the search warrant on 18 September 2014 as a factor which contributed to his radicalisation, it was clear that he was already radicalised significantly at that time. The sentencing judge noted that in his evidence, the applicant said that he hated the police before the execution of the search warrant but even more after that day. His Honour concluded that the applicant was not assisted by the events of 18 September 2014 as there was a proper basis for the search warrant to be executed as he was already a radicalised supporter of Islamic State.
The sentencing judge noted that the applicant's evidence indicated that he and others who were the subject of raids as part of Operation Appleby spoke to each other thereafter in ways that reinforced their views.
The sentencing judge referred to the fact that the applicant had known Alou since 2011-2012 and that they were good friends in 2015. He noted that the applicant also knew Farhad's family, and became aware in 2014 that Farhad (then aged 14 years) had an interest in the Islamic religion and he would see him at the Parramatta Mosque. He noted that the applicant described Farhad as "a hard core supporter of Islamic State". He noted the applicant's evidence that because of Farhad's belief he was sure that Farhad would "use a gun on someone".
The sentencing judge noted that the applicant was part of an online "WhatsApp" closed chat group called "The Bricks" (Bricks Forum) where he and others shared views and discussed ideas supportive of Islamic State. He noted that on 27 June 2015, the applicant posted to WhatsApp on the Bricks Forum pictures of Australian Defence Force personnel disembarking from a bus. He noted that the applicant said he made derogatory comments about the service personnel as a joke for his companions in the Bricks Forum. The sentencing judge noted that in response to the applicant's post, Alou posted, "Omg. May Allah curse them all and destroy them to pieces".
The sentencing judge referred to similar posts from other members of the Bricks Forum chat group. It is unnecessary to set them out.
The sentencing judge referred to attempts by Alou and the applicant to obtain an Islamic State flag from a person X4 between 14 August 2015 and 1 September 2015. He also referred to meetings between Alou, the applicant and Farhad's brother Farshad at Lake Parramatta Park in August and September 2015. It is unnecessary to set out all that occurred at those meetings. However, the sentencing judge referred to what was described by the applicant in his evidence as "a joke" where he and others mimicked the activities of Islamic State in the Middle East. The "joke" involved placing a cable tie around the wrists of one of the persons at the park, Alou's brother, and leading him up a hill whilst filming it on a mobile telephone. The sentencing judge stated that it was difficult to characterise this event as humorous given the usually grim conduct of Islamic State supporters who tied and marched their captives towards punishment or death.
The sentencing judge referred to the manner in which the applicant put Shadi in contact with Merhi in the Middle East. He stated that by 21 September 2015, the applicant was aware of Shadi's plans to travel to Syria to join Islamic State in that country. He stated that he was satisfied that the applicant provided Merhi's contact details to Farhad at the Parramatta Mosque on 21 September 2015 so that the details could be passed on to Shadi. In that context, he noted that not only was the applicant providing support to Alou in his efforts to obtain a firearm for Farhad to commit a terrorist act, but he was also playing a significant organisational role in the planned journey by Shadi to join Islamic State fighters in Syria. He noted that apart from the provision of financial support, the applicant also advised Shadi about the route to take to ensure she made it to Syria and about her manner of dress and appearance to reduce the prospects of her being stopped.
The sentencing judge also dealt with the contact which Alou and the applicant had in September 2015 with X2 and X3 to obtain a firearm. He noted that Alou and the applicant met X3 in Greenacre, where Alou asked X3, "Can you get anything" and, at the same time, turned his hands into the shape of a pistol. His Honour noted that X3 said that during the conversation he told Alou to contact X2 for assistance. He stated he was satisfied that the applicant was present on this occasion to give support to Alou during a conversation which was closely linked to the plan that Farhad would kill someone with a firearm in a terrorist act.
The sentencing judge stated that on 24 September 2015, Alou called X3 and asked him for X2's number, and that soon after that call Alou and the applicant contacted X2 and made arrangements to meet him later that night. He also noted that just prior to meeting X2, Alou sent a text message to X2 informing him that the battery on his telephone was about to "die" and to contact Alou on the applicant's mobile telephone number. He noted that at 8.30 pm on 24 September, Alou and the applicant met X2 at a chicken shop in Granville for approximately 25 minutes. He stated that during the meeting Alou asked X2 for a favour, stating he wanted a gun. X2 asked Alou who he "had dramas with", and Alou replied, "we don't have dramas with anyone. We can't tell no-one". X2 stated that he would "ask around" to see if he could source a firearm.
The sentencing judge then referred to the events of 29 September 2015. He noted that on that day, the applicant entered the Parramatta Mosque and went into the alcove of the male prayer hall. He said that Farhad, who was in a nearby area, followed the applicant and that between 12.08 pm and 12.09 pm the applicant and Farhad remained in the same area. He stated that it was on that occasion that the applicant gave Farhad $1,000 to assist in funding Shadi's travel to Syria.
The sentencing judge also referred to the applicant's involvement in the events of 1 October 2015. He stated that at 12.23 pm, the applicant arrived at the Parramatta Mosque. He said that at 1.00 pm, Alou arrived at the Parramatta Mosque carrying a black sports bag, followed by his wife. He noted that the applicant appeared to speak to someone off-camera in the area where Alou and Farhad were last seen, Farhad having arrived at the Mosque at 12.02 pm carrying a black Nike backpack. The sentencing judge stated he was satisfied that the applicant spoke to Alou and Farhad about the state of planning for the commission of the terrorist act to be carried out by Farhad. The sentencing judge accepted that there was no firearm obtained at that time. However, he stated that as was clear from the events of the following 24 hours, once the firearm was obtained, there would be no delay in supplying the weapon to Farhad to be used to murder someone in a terrorist act. He rejected the applicant's evidence that he believed the terrorist act had been called off. He stated that the applicant knew that Alou was continuing his efforts to obtain a firearm with the expectation that the weapon would be given to Farhad for the prompt commission of a terrorist act.
The sentencing judge accepted the possibility that the applicant discussed with Farhad a proposal that Farhad should accompany Shadi overseas. However, he stated it was clear that there were no arrangements made in that respect nor any money collected or provided for the purpose of travel by Farhad. He noted that the applicant agreed that he had not tried to talk Farhad out of committing a terrorist act in Australia. He also noted that the applicant made it entirely clear that if he knew the terrorist act was to occur on 2 October 2015, he would have "probably cancelled work and helped out Raban on the way". In the light of that evidence, he concluded that the applicant remained ready, willing and able to assist Alou and Farhad in the commission of the terrorist act if he had notice of when it was to occur.
His Honour also noted that at 9.31 pm, Alou and the applicant attended the vicinity of Alameddine's home. He accepted that by this time the applicant was aware that Alou intended to seek a firearm from Alameddine.
The sentencing judge then referred to the events of 2 October, including Alameddine's supply of the weapon to Alou, who provided it to Farhad, and Farhad's subsequent use of it to kill Mr Cheng. He accepted it was the case that the applicant was working in another location on 2 October 2015 and noted again that the applicant had said that he would have been prepared to assist if asked to do so.
In dealing with events subsequent to the death of Mr Cheng, his Honour noted it was apparent that the murder of Mr Cheng and the death of Farhad did not cause the applicant to question, let alone abandon, his support for Islamic State. In that context, he noted that the applicant on the afternoon of 5 October shared an image on the Bricks Forum of a newspaper report entitled "Tribute page labels Parramatta teen shooter a hero of the Islamic people", which was accompanied by a photograph of Farhad against the background of an Islamic State flag. In relation to a subsequent post by him on the same day, which read "the young brother had a smile on his face and his finger up", the sentencing judge noted that the applicant confirmed in his evidence that the "young brother" was Farhad and that the message conveyed his then belief that Farhad was a "martyr". The sentencing judge also noted that in a telephone conversation of 5 October 2015 with Farshad, both men praised Farhad for his actions.
The sentencing judge also noted that on 19 October 2015, the applicant appeared on the ABC 7.30 Report program. He noted that in answer to the question, "Would you get yourself killed for Allah?" the applicant said, "I'm not gonna answer that, because if I say yes I'll get in trouble, and if I say no I'll be a liar. I accept some of their opinions and I disagree with other opinions".
His Honour then dealt with the facts giving rise to the offence the subject of count 3. He stated that by February 2016, the applicant was working with a person he knew as Abdul who was in fact an undercover officer. His Honour noted that statements made by the applicant to Abdul disclosed his continuing support for violent jihad and Islamic State and what the sentencing judge described as "his boasting praise of Farhad for the murder of Mr Cheng". The sentencing judge stated that the depth of the applicant's commitment to the cause of Islamic State was manifest.
The sentencing judge noted that in an exchange of text messages on 2 February 2016, Merhi requested the applicant to collect money on his behalf. He noted that on 24 February, the applicant told Abdul that he had spoken to the "brothers" fighting overseas in Syria, and explained that they were being "hammered" by airstrikes and that the fighters were deployed for three day tours and returned home for four days. He also referred to a conversation between the applicant and Abdul on 25 February about sending money overseas for Islamic State. On 29 February, the applicant told Abdul that the brothers overseas needed supplies because of airstrikes and that if Abdul's contacts were willing to fund brothers going overseas to fight it would cost $5,000 per person. He explained to Abdul that the process of travelling to Syria involved buying a return ticket to Turkey, booking a hotel in Turkey and contacting a brother who arranged transport across the border to Syria. He further noted that during a conversation on 2 March 2016, the applicant gave Abdul advice about how to facilitate a female travelling to Syria.
The sentencing judge also referred to a conversation between the applicant and Abdul of 3 March 2016. It is unnecessary to set the conversation out in any detail. However, his Honour concluded from the conversation that it was clear that at a time about five months after the murder of Mr Cheng, the applicant was speaking in terms "which celebrated the terrorist act, with no hint of remorse or common humanity and decency in his description of Mr Cheng". The sentencing judge stated that rather than being shaken by the murder so as to question his own beliefs, the applicant manifested the same "hard-wired criminal belief system" with no concern for his fellow Australian citizens.
The sentencing judge referred to further conduct constituting the offence the subject of count 3 which took place between 7 and 21 March 2016. He referred to an exchange of text messages on 7 March 2016 in which the applicant and Merhi discussed how to facilitate the movement of $5,000 in cash from Australia to Islamic State. The discussions included the best way of transferring the money and the method of getting a female into Syria. The sentencing judge noted that Merhi provided the applicant with details of his contact in Australia together with the mobile telephone number and username of that person. His Honour noted that on 15 March 2016, Abdul told the applicant that the "brothers" were ready to send the money. Abdul asked the applicant if he had spoken with the girl (the girl who wished to go to Syria), and he said she had told him she had a sister who worked at Western Union. This was in the context that Western Union had been suggested to be used to effect the transfer of funds.
The applicant told Abdul that he could meet the younger sister at Guildford Park and that he would pass her number to him. The applicant informed Abdul that the female would take the money and would hand it to a younger boy who would deliver it to Western Union so "no one gets into trouble".
On 16 March 2016, Abdul asked the applicant if the "girl" still wanted to travel and if so she should be able to travel through Turkey, not Lebanon. Both men also discussed arrangements for Abdul to hand over the $5,000. On 21 March 2016, Abdul collected the applicant from his home address. They drove to an address in Guildford and the applicant entered the premises alone. When the applicant returned to the vehicle, he and Abdul drove to Guildford Park. His Honour noted that a short time later, a person arrived and spoke with the applicant and Abdul. He noted that during their recorded conversation, the woman told the men that "they" sent the money to Syria via Lebanon, and that they send $10,000 a month before but had not sent any more since that time. When asked by Abdul, the woman said they were not able to send $50,000 or $60,000 but were happy to do the $5,000. Arrangements were then made for Abdul to deliver $5,000 in cash the next day. On 22 March 2016, Abdul collected the applicant from his home in Guildford and drove to the woman's home where, as arranged, Abdul delivered $5,000 in cash to her and then departed. His Honour noted that a short time after that, the applicant was arrested.
The sentencing judge also noted that following his arrest, the applicant drew graffiti on the inside of his cell wall which depicted images of terrorist attacks and made reference to Islamic State. He also noted that during his appearance via audio visual link at Goulburn Local Court he gave an Islamic State salute.
In dealing with the objective seriousness of the offence the subject of count 1, the sentencing judge accepted the Crown's submissions that the matters set out in pars (a)-(j) below showed that the applicant was a key person in critical steps leading to the commission of the terrorist act: "(a) assisting Alou with attempts to have a radical, extremist flag made; (b) attending meetings at Parramatta Park with Alou and others in August and September 2015, with a suspicious ritual being filmed on 28 August 2015 (handcuffing of Hozan Alou) and with Farhad being present as well on 11 September 2015; (c) meeting with Alou and Farhad at the Parramatta Mosque on 21 September 2015, prior to meeting with X3 that evening in an effort to obtain a firearm; (d) assisting Alou to obtain a firearm by attending meetings with Alou, X2 and X3; (e) permitting Alou to use his mobile telephone as a point of contact with X2; (f) providing money to Alou at or about the time that Alou was seeking finance for the acquisition of the firearm; (g) using Alou's vehicle to attend the Alameddine residence on 29 September 2015 and speaking to a number of unknown males outside the residence; (h) after attending the Alameddine residence, travelling to the Parramatta Mosque and meeting briefly with Farhad in an area which was out of camera view; (i) visiting in the vicinity of the Alameddine residence on 1 October 2015 in the company of Alou for the purpose of obtaining a firearm; and (j) assisting Shadi to travel to Syria by providing funds and liaising with his overseas contact, Merhi, to arrange her travel via Turkey."
The sentencing judge noted that it was "not a universal principle that the culpability of an aider or abettor is less than that of the principal offender".
His Honour stated that he was satisfied that the applicant was a radicalised supporter of Islamic State and violent jihad for many months prior to October 2015, and that by September 2015, he wished to see a terrorist act carried out in the name of Islamic State in Sydney. He stated that the applicant knew that Alou and Farhad had similar views and that Farhad was prepared to carry out a terrorist attack involving the shooting of a person or persons in a public street.
The sentencing judge also found that the applicant was well aware that Farhad was a 15-year old youth. He noted that the applicant took no steps to dissuade Farhad from carrying out the terrorist act, but rather provided support and assistance to Farhad in preparations for the act and separately assisted Shadi in her plans to travel to Syria to provide direct support to Islamic State.
The sentencing judge accepted that in most of the activities carried out, the applicant was playing a role subsidiary to Alou. However, he stated that it was "not plausible" that he was playing a role of "a type of disinterested accompanying friend". He stated that rather, the applicant shared the extremist ideological views held by Alou, and was present at meetings with X2 and X3, knowing full well the reason why a firearm was being sought.
The sentencing judge again set out the activities of the applicant on 1 October 2015 to which I have referred at [24] above. He noted that the statements made by the applicant as contained in the Bricks Forum after the murder of Mr Cheng indicated a form of celebration on his part that someone had been killed.
In that context, his Honour, referring to R v Kahar [2016] 1 WLR 3156; [2016] EWCA 568, reached the following conclusions: "(a) there was a degree of planning involved (although the plot itself was not especially sophisticated) and the Offender was heavily committed to the carrying out of a terrorist act by Farhad using a firearm which was likely to (and did) cause the death of an innocent civilian; (b) the planning for the terrorist act occupied more than four weeks and the Offender was involved regularly throughout that period; (c) the Offender was deeply radicalised and a supporter of violent jihad and Islamic State in the period before, during and after the commission of the Count 1 offence in September-October 2015; (d) the Offender was well aware of the depth of radicalisation of the 15-year old Farhad and he acted in a way which reinforced Farhad's indoctrination - he took no steps in September-October 2015 to dissuade Farhad from carrying out a terrorist act, nor did he intervene with Farhad's parents or brother, Farshad, for the purpose of saving Farhad and stopping the terrorist act, knowing full well the vulnerability of a 15-year old boy who was to carry out the act."
In the circumstances the sentencing judge concluded that the objective seriousness of count 1 was substantial although it did not reach the level of Alou's offence. However, he stated that the offence was extremely serious and at the higher end of the scale of seriousness for an offence under ss 11.2(1) and 101.1(1) of the Criminal Code.
So far as the offence to be taken into account under s 16BA of the Crimes Act was concerned, the sentencing judge stated that although it was a clear component of the facts for count 1 that the applicant was a strong supporter of Islamic State, the offence to be taken into account involved additional criminality in that (unlike Alou) the applicant was a member of Islamic State and not merely a supporter.
In dealing with the objective seriousness of count 2, the sentencing judge stated that factors which bear upon the objective gravity of offences under s 102.6(1) of the Criminal Code include the amount of funds involved, the identity of the terrorist organisation and the conduct of an offender surrounding the commission of the offence. He noted that the terrorist organisation was Islamic State, and that whilst the quantum of the funds made available was not great, the funds permitted Shadi to travel to Syria to provide direct assistance to Islamic State. The sentencing judge also noted that the applicant used his contact in the Middle East (Merhi) to facilitate Shadi's travel to support Islamic State. He stated that the applicant played a significant organisational role with respect to the implementation of the making of funds available to Islamic State. He also stated that the applicant provided informed advice to Shadi intended to assist her journey to Syria and followed up to ensure that she had arrived at her destination.
He concluded that in all the circumstances, the offence the subject of count 2 was an offence of substantial objective gravity.
In relation to count 3, the sentencing judge noted that the offence was committed in the context of the applicant's dealings with Abdul, and where there was no real prospect that the funds would actually reach Islamic State because it formed part of an undercover operation. However, he noted that the applicant engaged in elaborate steps over a lengthy period to facilitate the planned transfer of funds to assist Islamic State. He also noted that the offence was committed against a background of the commission of the offences the subject of counts 1 and 2 and demonstrated the depth of his commitment to the criminal cause of Islamic State. He stated that those aspects served to magnify the applicant's criminality.
The sentencing judge concluded that the fact that there was no prospect that the funds the subject of count 3 would actually reach Islamic State did not provide real assistance to the applicant on sentence. He stated that there was a broad analogy with sentencing for drug supply offences where the drugs will not reach the public because the drugs are supplied to an undercover operative. He concluded that although the fact that the funds did not actually reach Islamic State was a factor to be taken into account on sentence, a primary consideration which remained was that the applicant intended to make funds available to Islamic State and that it was no act of his which resulted in that not happening. He concluded that the offence was of substantial objective gravity.
In dealing with the applicant's subjective circumstances, the sentencing judge noted that the applicant was 19-20 years old at the time of the offences and had no prior criminal history.
The sentencing judge noted that the applicant had been examined by Dr Furst, a psychiatrist. He noted that in his evidence the applicant confirmed that what he had said to Dr Furst was truthful and accurate. He noted that according to Dr Furst's report, the applicant did not drink alcohol or use illicit drugs, and that Dr Furst on examination considered the applicant to be "lucid, alert and reactive at the time of assessment, with no indications of pervasive depressed mood or psychosis". He also referred to the fact that Dr Furst concluded that there were "no indications of cognitive disorder and he appeared to be of average intelligence". The sentencing judge then referred to Dr Furst's outline of the applicant's pathway towards radicalisation, and in particular to his comments that at the time of the recent assessment, the applicant was "showing some encouraging signs of moving away from Islamic State support and his previous support for the radical jihadist cause". He noted Dr Furst's conclusion that the applicant was willing to engage in programs of deradicalisation and his description of the applicant as "a young man who is likely to mature over time and will hopefully maintain his apparent recent gains and hold more moderate religious beliefs over time".
The sentencing judge noted that Dr Furst's report predated the applicant's letters of 14 October 2018 in which he recanted much of what he said in evidence. He considered that accordingly, Dr Furst's opinion must be heavily qualified as a result of the applicant's changed position which largely removed the foundation for Dr Furst's opinion concerning the applicant's prospects of rehabilitation.
The sentencing judge noted that the applicant's wife Ms Clarke provided a letter to the Court dated 17 September 2018 recounting her relationship with the applicant. He noted that Ms Clarke had provided ongoing support to the applicant whilst he was in custody so that he maintained an association with their young son. He noted, however, that there was no further evidence from Ms Clarke following the applicant's letters of 14 October 2018. He said that her reaction to those letters could be gleaned from an entry in the applicant's Corrective Services NSW case notes for 30 October where she expressed concern that the applicant had "done something really stupid".
The sentencing judge also noted the evidence of Mr Mohammad Azamy, President of the Afghan Community Support Association, who stated that he had known the applicant's family on a professional and personal basis for several years. He noted that Mr Azamy stated that a strong support network and guidance was required for the applicant to rehabilitate when he was released, and that the Afghan Community Support Association would do all it could to provide that support. He noted that once again there was no evidence of Mr Azamy's views in light of the letters of 14 October 2018.
His Honour concluded that on the face of it, the applicant had family and community support mechanisms which should assist him in custody and provide support at a time when conditional release from custody is possible.
The sentencing judge summarised the conditions of the applicant's custody. He stated he would have regard on sentence to those conditions, which included additional limitations flowing from his classification and designation because of the nature of his offences.
The sentencing judge also referred to the "PRISM" program, which is designed to assist identified offenders to disengage from extremist groups or behaviours. He noted that participation is on a voluntary basis and eligibility requires an offender to be convicted of the offence for which they are incarcerated with a minimum of 12 months remaining prior to the earliest possible release date. He stated that in light of the applicant's letters of 14 October 2018, it would seem unlikely that he would wish to avail himself of PRISM.
So far as contrition, remorse, prospects of rehabilitation and the risk of reoffending were concerned, the sentencing judge noted that the evidence indicated that the applicant became radicalised through his association with others (including Alou) and his internet viewings, reinforced by his later participation in the Bricks Forum.
The sentencing judge noted that the evidence of the applicant was that since he had been in custody, he had become aware of a concept where, given his family migrant's status and later citizenship in Australia, there is a form of contract between himself and Australia so that he will not commit any act which harms other Australians. He noted that his evidence was that he no longer supported Islamic State, although he maintained support for the Taliban and Jabhat Al-Nusra, a prescribed terrorist organisation. He noted that the applicant said he was "still probably a radical" because he believed "in jihad, fighting overseas" although he did not believe in attacking the West. The applicant stated that he was in two minds as to whether Farhad had become a martyr as a result of killing Mr Cheng and then being killed himself.
The sentencing judge found that the fact that the applicant was prepared to give evidence and face cross-examination and in doing so, move some small distance from Islamic State, assisted him to an extent on sentence. However, he described the applicant's expression of regret for the offence which saw the killing of Mr Cheng as "somewhat lukewarm".
In those circumstances, the sentencing judge concluded that the most that could be said was that by September 2018, the applicant had moved to an extent from the position which he held certainly throughout 2015 and up to his arrest in March 2016. He again noted that the applicant had no prior criminal history.
The sentencing judge thus concluded that as things stood at 21 September 2018, he had proposed to take into account in the applicant's favour the "very guarded assessment" which could be made with respect to contrition, remorse, prospects of rehabilitation and the risk of reoffending. However, the sentencing judge indicated that his view changed in light of the letters written by the applicant to the Australian Federal Police and to senior counsel for the Crown on 14 October 2018. The letter to the Australian Federal Police was in the following terms: "In the name of Allah All praise is due to Allah, may peace & Blessing Be upon his messenger & his family & his companions: to what follows. I'm writing this letter regarding what happen in court & I would like to say few thing's that has been playing in my mind. Firstly I said that I'm sorry to Cheng family & about me being regretful about my action. I would like to say I'm not sorry about my action nor I'm regretful of my action. I take back what I said in the box because I was in the heat of moment & I just slipped up. All praise is due to God I'm happy with my action. If use can please let the Judge know about this letter & I want him to know were [sic] I stand with this remorse bullshit. Remember this I have sold my life for a cheap price & that is the next life because this world is only temporay [sic] & the hereafter is eternal. I ask Allah to grant victory to the believers & to destroy those who oppress his slaves. Ameen 'And the worldly life is not but Diversion & amusement. And indeed, the home of the hereafter that is the eternal life, if only they knew'."
The letter to senior counsel for the Crown made the following remarks: "Im writing this letter regarding what happen in Court. I would like to say few thing's that has been playing in my mind. Firstly I said that I'm sorry to Cheng family & about me being remorseful about my action's. I would like to say that I'm not sorry nor I'm regretful for my action. I take back what I have said because I wasent [sic] been truthful. If use can please let the Judge know about this letter before my sentencing because I don't want any discount regarding remorse. Thank you."
The sentencing judge noted that there was no oral evidence given at the resumed hearing of the sentencing proceedings. However, he noted that a Corrective Services NSW case note was tendered which contained the following entry: "Discussion: Atai was advised that management had become concerned about his welfare after he had produced documentation retracting statements of remorse he had apparently made during his legal proceedings. Atai acknowledged that this had occurred. He further clarified indicating that while he continued to hold to his belief system, he had 'felt for her (Mrs Cheng) as anyone would', and that his decision to retract his statements was in response to being 'pissed off with the judge'. He indicated that he was comfortable with his decision and that he was satisfied that his legal representative understood his position and would represent that in later proceedings. He was asked how he would respond in the event that he received a lengthy sentence and he indicated that he would cope with this. He was able to describe a number of strategies that he employs to manage his mood, including training, speaking with his wife, talking with other inmates and reading the Quran."
The sentencing judge stated that in an area where the applicant carried the onus of proof to the civil standard, he was satisfied that the additional evidence operated to "neutralise almost entirely" the factors which he mentioned had operated in the applicant's favour at the end of the sentencing hearing on 21 September 2018. He described the approach adopted by the applicant towards the Cheng family as "cruel and devoid of basic humanity".
The sentencing judge stated that although the applicant was not to be punished further for the course he had taken since 14 October 2018, he was deprived of several mitigating factors which would otherwise have operated in his favour on sentence. He stated that there was no evidence of contrition or remorse or the development of insight into his offending. The sentencing judge stated that he also had regard to the applicant's acknowledgement that he gave untrue evidence on a number of issues at the sentencing hearing. He concluded that the applicant's prospects of rehabilitation were not favourable and that his risk of reoffending remained significant.
The sentencing judge took into account the victim impact statement read on behalf of the Cheng family.
The sentencing judge allowed a discount of 10 per cent for the applicant's plea of guilty. It was not suggested that this was inappropriate.
In dealing with questions of parity, the sentencing judge noted that the objective gravity of Alou's offence was significantly greater than that of the applicant and constituted a foundation for a significantly different sentence being imposed for count 1. He stated that the offences for which Alameddine was sentenced were so different to those charged against the applicant that the parity principle had no role to play in sentencing him. The contrary was not suggested on the appeal.
In dealing with the matters required to be taken into account under s 16A of the Crimes Act, he noted that the Court must have regard to the nature and circumstance of the offences (s 16A(2)(a)). He repeated that he was satisfied that the offence the subject of count 1 was extremely serious and lay at the higher end of the scale of seriousness for an offence of that nature. He also repeated his view that the offences contained in counts 2 and 3 were serious examples of offences of that nature.
The sentencing judge took into account under s 16BA of the Crimes Act the offence of intentionally being a member of a terrorist organisation. He stated that whilst the primary focus of the Court must be on the offence in count 1, the Court should give greater weight to the need for personal deterrence which the admitted offence signifies, and also to the community's entitlement to exact retribution in the form of punishment for the admitted offence.
He stated that the Court must assess the objective criminality of the admitted offence, though recognising that it assumes a significantly lower salience in the sentencing process than the offence for which sentence is to be passed.
The sentencing judge stated that he took into account the personal circumstances of the victim and any injury, loss or damage from the offence. He also stated that he took into account the victim impact statement.
The sentencing judge stated that a very strong element of general deterrence is required in sentencing for terrorist offences, which was even more the case where the terrorist offence has caused death and thus actual harm to the community. He stated that general deterrence was also a significant factor on sentence for the offences contained in counts 2 and 3. He noted the Court must ensure that the applicant was adequately punished for the offences and that the sentences to be imposed would constitute adequate and proportionate punishment.
In dealing with the character, antecedents, age, means and physical or mental condition of the applicant, the sentencing judge again noted that he was 19-20 years old at the time of the offences and 22 years of age at the time of sentence. He noted that he was not suffering from any mental illness or any relevant physical condition and that he had no prior criminal history.
The sentencing judge kept in mind statements of principle concerning the relevance of youth in sentencing for terrorist offences. He stated that whilst youth is always relevant, it may be given less weight in light of the seriousness of the offence and the absence of any causal link between an offender's age and their criminal conduct.
So far as rehabilitation was concerned (s 16A(2)(n)), he stated that the evidence did not assist the applicant on his prospects of rehabilitation.
In dealing with questions of accumulation, the sentencing judge noted that the criminality involved in count 1 was different to that contained in counts 2 and 3, and that a significant level of accumulation was appropriate as between those two classes of offences. He stated that there ought to be a degree of accumulation between counts 2 and 3. He also stated that he applied the totality principle and reviewed the total sentence to determine whether the total term was just and appropriate.
In those circumstances, the sentencing judge imposed the sentence to which I have referred above.

The grounds of appeal

The applicant relied on the following grounds of appeal: "1. The learned trial judge erred in imposing on each count sentences which were excessive and disproportionate to the crimes and the factors in section 16A(1) of the Crimes Act 1914 and in particular the objective criminality of each offence. 2. The learned trial judge erred in accumulating the sentences as he did so that considerations common to all the offences had an excessively penal effect and so as not to apply the totality principle. 3. The learned trial judge erred in the manner in which he treated for sentencing purposes the Applicant's youth."
Ground 1 of the grounds of appeal, as argued both in the written submissions and orally, was based on the proposition that the sentence was manifestly excessive. To a lesser extent the same may be said of grounds 2 and 3, although separate consideration was given to these grounds in the written submissions. In those circumstances, it is convenient first to summarise the submissions made by the parties in respect of grounds 2 and 3 and then the written submissions in respect of ground 1 and the submissions made at the hearing. It is also convenient to set out my conclusions on grounds 2 and 3 prior to dealing with ground 1.

The written submissions on ground 2

The applicant's written submissions on this ground did not identify any specific error in the approach to accumulation taken by the sentencing judge, but stated that the overall effect of the sentences was "crushing" and "disproportionate even to the very serious objective criminality even considering the sentences passed on Alou and Alameddine".
The submission repeated what was in effect the submission made in respect of ground 1, that the sentencing judge erred in his assessment of the objective criminality. It was submitted that the proper process of evaluation and assessment should have been as conducted by the Court of Criminal Appeal in IM v R (2019) 100 NSWLR 110; [2019] NSWCCA 107.
The Crown in its written submissions pointed out that the sentencing judge did take into account the overlapping nature of the offences in reaching an evaluative assessment of the extent of accumulation. It was submitted that the applicant did not point to any error. It was submitted that the submissions concerning proportionality and objective seriousness were subject to the same considerations as those on ground 1.

Consideration - ground 2

The approach to the question of accumulation and totality was summarised by the plurality in Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 in the following terms (at [64]): "[64] Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency." (footnotes omitted)
As was stated in that passage, the question is one on which judicial minds might differ.
In the present case no specific error was identified, although it was contended that the degree of accumulation led to the sentence being manifestly excessive. The sentencing judge noted that the criminality involved in count 1 was different to that contained in counts 2 and 3 and that a significant level of accumulation was appropriate between those two classes of offences. There does not appear to me to be any error in that approach. Further, the offences the subject of counts 2 and 3 were separate to each other, and a degree of accumulation was necessary to give effect to the requirement in s 16A(2)(k) of the Crimes Act to ensure that the person is adequately punished for the offence.
The real complaint made by the applicant was that the sentencing judge misapplied the totality principle such that the overall effect of the sentence was crushing: see R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [15]-[18]. As was pointed out in GS v R [2016] NSWCCA 266 at [51], the description of the sentence as "crushing" is but one of the matters taken into account in determining whether the sentence is beyond the range of sentences properly available to the sentencing judge.
In these circumstances and where the sentencing judge expressly stated that he took the totality principle into account, it is more convenient to consider the matter in detail in dealing with ground 1. However, as will be seen from what I have said in relation to ground 1, the judge did not misapply the totality principle such that the sentence was manifestly excessive. Thus for the reasons set out above and the reasons in respect of ground 1 this ground has not been made out.

The written submissions on ground 3

The applicant submitted that the principles concerning the sentencing of young offenders were correctly set out in IM and Howard v R [2019] NSWCCA 109. It was submitted that the sentencing judge erred in his treatment of the applicant's youth, as it was not to be considered only as a subjective circumstance or as a mere "ameliorative effect" to be overtaken by general deterrence and denunciation, but to be given a significant effect considering the sentencing judge had to impose a long sentence. It was submitted that the sentencing judge gave no or erroneously insufficient consideration to the applicant's youth.
The Crown in its submissions stated that the sentencing judge discharged the obligation imposed on him by s 16A(2)(m) of the Crimes Act by taking into account the applicant's youth in setting an appropriate sentence: see [50] and [75]-[76] above.
The Crown submitted that the applicant's submissions ignored the line of authority relied upon by the sentencing judge, which establish that whilst youth is relevant in determining the weight to be given to general deterrence and denunciation, its weight is considerably diminished in terrorist cases where the offender participates in planning or carrying out acts of extreme violence. The Crown referred in that context to R v Khalid [2017] NSWSC 1365; Director of Public Prosecutions (Cth) v MHK (2017) 52 VR 272; [2017] VSCA 157 at [56], [58], [66]-[67], IM at [53]-[54] and Alou at [130]-[139], [144], [198]-[199]. It was submitted that consistently with those cases, the sentencing judge did not err in giving priority to general deterrence and denunciation above the ameliorating effect of youth and sentenced in accordance with the general sentencing principles concerning the relevance of youth in dealing with terrorist offences.

Consideration - ground 3

It has been consistently stated by intermediate appellate courts in this state and Victoria that whilst youth is relevant as a mitigating factor, its weight needs to be appropriately moderated in terrorist cases where the offender participates in planning and carrying out acts of extreme violence. Thus in IM, a decision of this Court on which much reliance was placed by the applicant, Meagher JA with whom the other members of the Court agreed made the following comments: "[53] Because of the significance given to punishment, general deterrence and protection of the community in cases involving terrorist offences, mitigating factors such as the youth of the offender and prospects of rehabilitation are given much less weight in the face of those other factors, and especially the often overwhelming need for general deterrence and the protection of the community. In Lodhi v The Queen, Price J stated at [274] in a passage agreed in by Spigelman CJ at [109] and cited with approval in MHK at [55]: 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. [54] The position is similar in relation to the youth of an offender, which in general is an important mitigating circumstance. As the Court observed in MHK at [56], an offender's youth is 'relevant to an assessment of the moral culpability of the offender, as the law recognises that the immaturity and impressionability of youth may be, and commonly is, an important contributing factor to the involvement of a young offender in the crime for which that offender is to be sentenced'. However the Court then acknowledged that these principles 'need to be appropriately moderated where, as in a case such as this, the offender has been involved in serious and dangerous offending' at [57]."
The present case involved a terrorist act and other offences which were both serious and involved a degree of planning. As was pointed out in Alou at [136], the emphasis given to rehabilitation rather than general deterrence and retribution in the case of a young offender may be moderated when the young person has conducted himself or herself in a way that an adult might have and has committed a crime of considerable gravity: see also the cases relied on by the Crown to which I have referred at [92] above.
The sentencing judge correctly applied these principles. This ground of appeal has not been made out.

a The applicant

In his written submissions, in relation to count 1 the applicant seemed to accept the sentencing judge's conclusion that the applicant was involved for a significant period of time in the procuring of a terrorist act, but described those events as "on a limited scale", with the applicant's role being "comparatively limited even having regard to the further offence to be taken into account". It was submitted that the offence did not approach the "higher end of the scale" for an offence which would apply to multiple homicides, the use of weapons of mass destruction and greater societal disruption.
It was submitted that insofar as count 2 was concerned, the funding was "limited in scope", "unsophisticated in method" and "at the lower end of culpability". It was submitted in these circumstances that the assessment of objective seriousness was in error and the sentence was disproportionate.
Similar submissions were made in respect of count 3. It was also submitted that the sentencing judge erred in concluding that the overlap between the two offences "magnified" the offence: see [48] above.

b The Crown

The Crown submitted in relation to count 1 that it was incorrect to state that the events were on a limited scale. It was pointed out that the acts involved the applicant assisting in the supply of a firearm to a 15 year old for the purpose of carrying out a terrorist act in a public place, as a result of which people were killed. The Crown referred to the applicant's evidence at the sentencing hearing that the gun could have been used to kill one, two or three people, and that it was always part of the plan that Farhad was going to die.
The Crown submitted that the sentencing judge applied orthodox principles in dealing with the objective seriousness of the offence: see [43] above. The Crown referred to the reference in IM to Kahar, and the statement in that case that terrorist offences involve conduct which threatens "democratic government and the security of the state", and that in relation to such conduct, offences involving an intended threat to human life are the most serious. It was submitted, contrary to the applicant's submission, that the offending was not less serious because it was not at the "higher end of the scale" in circumstances where the offending had led to actual deaths.
In submitting that there was a very real need in the present case for the application of the principles relevant to sentencing for terrorism offences, including incapacitation, protection of society and general and specific deterrence, the Crown referred to the evidence given by the applicant at the sentencing hearing that he: "(a) continued to support the Taliban and its military activities overseas, which he said were religiously justifiable; (b) continued to support Jabah Al Nusra (a listed terrorist organisation); (c) continued to support Islamic military activity in Syria; (d) continued to believe that there was a religious obligation to fight non-Muslins in conflict; (e) continued to believe that Islamic fighters who die in overseas conflicts are martyrs who are rewarded by Allah with entry to Paradise; (f) allowed for the possibility that Farhad Mohammad might be rewarded by Allah for killing Curtis Cheng; (g) continued to support Islamic military activity in Afghanistan; (h) previously regarded himself as an extremist and probably was still a radical; (i) if he was not in custody he would want to travel overseas, including to Syria and Afghanistan, to fight for the Mujahideen in armed conflicts, even if that involved fighting against Australian soldiers."
The Crown referred to the applicant's letters of 14 October 2018 as providing further support for the need for deterrence and incapacitation in the present case.
In relation to count 2, the Crown submitted that the objective seriousness had to be considered in the context that the conduct related to the provision of funding for a particular purpose, namely to enable Shadi to travel overseas to advance the interests of Islamic State. The Crown noted that the findings by the sentencing judge to which I have referred at [46] above were not challenged.
In relation to count 3, the Crown submitted that the fact that there was no prospect of the funds reaching Islamic State did not diminish the gravity of the offence. It was also contended that the sentencing judge did not err in considering that the applicant's criminality was magnified because it showed the depth of his commitment to Islamic State.

a The applicant

Senior counsel for the applicant submitted that s 16A(1) of the Crimes Act picks up the concept of proportionality referred to by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14. He submitted that the sentencing judge erred having regard to the matters to be taken into account. He submitted that the sentence imposed was "dramatically greater" than the sentence imposed by the Court on the offender in IM in circumstances where the offender was only four years younger than the applicant, and that imposed on the offender in Khalid v R [2020] NSWCCA 73. He submitted that although those offences were preparatory offences they were punishable by the same maximum penalty. He also pointed out that the applicant's offence was not as serious as that of his co-offender Alou. The sentencing judge expressly recognised this fact.
Senior counsel for the applicant submitted that the sentence of 38 years must have been passed on the basis that, "without such factors as there were" (presumably a discount for the guilty plea), the offence merited a sentence on a 19 year old of at least 40 years imprisonment that would be served in particularly onerous conditions.
He submitted that underlying all the offences was the common ground of adherence to Islamic State ideology. He submitted that counts 2 and 3 essentially amounted to providing "limited financial assistance" and a number of arrangements which were "not particularly sophisticated". He suggested that the objective seriousness lay in the same matters as were taken into account on count 1, namely, the applicant's adherence to Islamic State.
Senior counsel for the applicant submitted that he was both challenging the objective seriousness of each offence, and submitting that the sentence imposed for each offence and in totality was manifestly excessive. He stated that emphasis was placed on the objective seriousness because the case law firmly establishes that matters such as remorse, rehabilitation, age and various other considerations that might otherwise lead to a significant discounting in sentencing have been held to be moderated or given little weight in terrorist offences. He submitted, however, that youth is not to be disregarded and that there is still a substantial component of rehabilitation sought to be achieved.
In contrasting the difference in the sentence imposed on the applicant and that imposed on Mr Alou, senior counsel submitted that it was not just "a matter of happenstance" that he had a much lesser role than Alou. He repeated what was said in the written submissions concerning count 1, and submitted that the concept of "incapacitation" referred to in the United Kingdom cases has little application in the present case.
In his submissions in reply, senior counsel for the applicant again emphasised the difference in the sentence imposed on the offender in IM and that on the applicant, submitting that the offender in IM was 14 years and 11 months of age at the time of the offence (he was in fact 14 years and 2 months), the conspiracy was much wider in that case and that offence involved a considerable amount of planning. On the question of youth, he also relied on the decision of the majority in Howard.

b The Crown

The Crown referred to the applicant's submission that the underlying cause of all the offences was the applicant's commitment to Islamic State and its particular ideology. He submitted that although the sentencing judge accepted there was a connection between the assistance given to Shadi to travel to Syria and the offence the subject of count 1 (see 37 above), the sentencing judge was referring to a temporal connection. He submitted that the sentencing judge did not say that there was any connection in the elements of the offences.
The Crown submitted that the sentencing judge correctly took into account the difference in the seriousness of the applicant's conduct and that of Mr Alou, noting that the starting point for the applicant's sentence on count 1 before discount was 34 years and Mr Alou's was 52 years.
The Crown submitted that neither IM nor Khalid were particularly good comparators, and particularly IM because of his age. He submitted that the distinguishing feature in IM and Khalid was that although the co-conspirators had reached agreements with one another and engaged in some physically overt acts in preparation, their planning and overt acts had not gone beyond that point. He submitted that there were no specific weapons identified, no specific acts had been planned, no "candidate" had been identified as the martyr who would carry out the attack and no deaths had occurred.
The Crown submitted that whilst the applicant was not physically present on the day of the offence, he said he would have cancelled work that day if he had known the attack was going to happen. In those circumstances, he submitted that it was "a matter of happenstance" that the applicant did not accompany Mr Alou on the day of the shooting.
The Crown noted that the sentencing judge did not regard youth as an irrelevant factor, but gave it less weight because of the serious circumstances and because of the line of authority about the reduced significance of youth in terrorist offences. He contrasted the present offence to that considered in Howard, where the offender threw an explosive substance in the context of mob violence behaviour, an act which the Court of Criminal Appeal said was unpremeditated, unplanned and reflective of an offender who had a compromised capacity for mature decision-making. He also pointed out that in IM there was evidence that the offender was impaired cognitively and socially immature.
The Crown submitted that the approach of the sentencing judge to accumulation was appropriate, given that counts 2 and 3 were in relation to different financing. He accepted that the amount of the financing was a relevant consideration to an assessment of objective seriousness, but submitted it was not the most relevant.

Consideration - ground 1

As I have indicated, this ground essentially involves a claim that the sentence was manifestly excessive. The principles to be applied in dealing with an appeal on this ground were conveniently summarised by this Court in Hughes v R [2018] NSWCCA 2 at [86]: "[86] When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust. See Obeid v R [2017] NSWCCA 221 (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443]."
The applicant was correct in submitting that the principle of proportionality is applicable in determining an appropriate sentence. So much is made clear by the terms of s 16A(1) of the Crimes Act, which requires the Court to impose a sentence which is of a severity appropriate in all the circumstances of the offence.
In Khalid v R [2020] NSWCCA 73 I stated at [80], referring to Lodhi v R [2007] NSWCCA 360; 179 A Crim R 470 at [89] citing R v Martin (1999) 1 Cr App Rep (S) 477 at 480, Elomar v R [2014] NSWCCA 303; 316 ALR 206 at [703] and Alou at [132]-[134], that "[i]n passing sentence for the most serious terrorist offences, the object of the Court will be to punish, deter and incapacitate; rehabilitation is likely to play a minor (if any) part". As was said by a five member bench of the English Court of Appeal in Kahar at [15] (cited with approval in IM at [45]), terrorist offences involve conduct which threatens the security of the state and accordingly have a seriousness all of their own, and in relation to such conduct, offences involving an intended threat to human life are the most serious.
The offence the subject of count 1 carries a maximum penalty of life imprisonment. In my opinion, the sentencing judge was entirely correct in concluding it was a most serious offence, resulting as it did in the death of Mr Cheng. The extent of the applicant's involvement was summarised by the sentencing judge in the passages to which I have referred at [37] and [43] above. To this must be added his unchallenged conclusion that, having regard to the applicant's evidence that had he known the terrorist attack was to take place on 2 October he would probably have cancelled work and helped Alou, he remained ready, willing and able to assist Alou and Farhad in the commission of the terrorist act if he had notice of when it was to occur: see [25] above.
It may be as the applicant submitted that it was possible to envisage a more serious offence of this nature. However, that does not alter the fact that participation in a terrorist act with the object of murdering an innocent person, which object was achieved, falls within the high range of objective seriousness.
The findings by the sentencing judge in respect of the applicant's subjective circumstances and the matters required to be taken into account by virtue of s 16A(2) of the Crimes Act are not in dispute, with the exception of the approach taken by the sentencing judge in relation to the youth of the applicant. I have dealt with the latter matter in dealing with ground 2, and have set out the conclusions reached by the sentencing judge on the subjective circumstances of the applicant and the s 16A(2) matters above. It is unnecessary to repeat them. Suffice to say, the applicant has affirmed his extremist beliefs and has ultimately demonstrated no remorse for the crimes he committed. His prospects of rehabilitation are guarded, if not poor.
It is also necessary to take into account, pursuant to s 16BA of the Crimes Act, the offence of being a member of a terrorist organisation. It has been held that the principles for dealing with such offences, as set out by Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518, are applicable to the Commonwealth legislation: R v Lamella [2014] NSWCCA 122 at [48]. Those principles demonstrate that in sentencing for the charged offence, the Court is entitled to take into account the s 16BA offence as showing additional need for personnel deterrence and retribution in respect of the offence charged: Abbas v R [2013] NSWCCA 115; 231 A Crim R 413 at [22].
The appellant contended that the sentences imposed on Khalid and IM were appropriate comparators. I do not agree. The offenders in those cases were charged with a different offence, namely, conspiracy to do acts in preparation for a terrorist act, although as was pointed out by the applicant it must be noted that that offence also carries a maximum penalty of life imprisonment.
I summarised the conspiracy for which Khalid and IM were sentenced in Khalid v R at [15]. The conspiracy extended over six weeks, and whilst some firearms were obtained and there was general discussion concerning targets, no particular target was identified, much less attacked. Khalid was described by the sentencing judge as the co-ordinator of many aspects of the conspiracy and a person whose actions placed him at a level above all the others. His offence was described as at the higher end of the scale of objective seriousness. He was sentenced to a term of imprisonment of 20 years after a 10 per cent discount for his plea of guilty. In my opinion, the offence the subject of count 1 committed by the applicant is of significantly greater seriousness.
Whilst IM received a lesser sentence, he was aged 14 years and 2 months at the time of the offence, and was described by one psychologist following clinical assessment as being within the borderline range of cognitive capacity and the Court accepted that his prospects of rehabilitation were more favourable than not: IM at [32], [63]. The latter conclusion could not be reached in respect of the applicant.
A more relevant comparator is the sentence imposed on Alou. Alou was sentenced for his part in the terrorist attack to a term of imprisonment of 44 years after a discount of 15 per cent for his plea of guilty. His pre-discount sentence was thus 52 years, compared to a pre-discount sentence of approximately 34 years imposed on the applicant for the offence the subject of count 1. The sentence imposed on Alou was upheld by a majority on appeal. Taking into account the difference between their respective roles, it does not seem to me that the sentence imposed on the applicant for the offence the subject of count 1 could be said to be manifestly excessive. That is all the more so when the s 16BA offence is taken into account.
As I indicated, the offence the subject of counts 2 and 3 carries a maximum penalty of 25 years. This is an indication of the seriousness with which the legislature regards the offence. The offence is evidently designed to prevent the flow of funds to terrorist organisations and thereby hinder their operations and the consequent danger to the public. The maximum penalty provides a clear indication that those who engage in facilitating the flow of funds to terrorist organisations can expect severe punishment.
I agree with the sentencing judge that the offence the subject of count 2 was a serious one. Although only a relatively small amount of money was involved, the context in which the offence took place, namely, assistance to Shadi to travel overseas to join Islamic State utilising the applicant's contact in the Middle East, justifies the offence being described as serious. As with the offence the subject of count 1, general and specific deterrence are of importance in sentencing for offences of this nature. In all the circumstances it does not seem to me that the sentence imposed on this count was manifestly excessive.
So far as the offence the subject of count 3 is concerned, it took place when the applicant was well aware of the tragic consequences of the terrorist act which had taken place on 1 October the preceding year. That did not deter him from continuing to engage with his Middle East contact and from soliciting Abdul to supply funds to enable persons to travel to Syria. The circumstances surrounding the offence involved communication with the applicant's Middle East contact Merhi, seeking funds from Abdul, discussing the mode of transfer of these funds and ultimately arranging for the distribution of the funds to a contact: see [30]-[35] above. Although the amount involved was again relatively small and did not reach its target, the considerations to which I have referred demonstrated in my opinion that the sentencing judge was justified in considering that the offence was one of substantial objective seriousness. It does not seem to me that a sentence of 9 years after a discount of 10 per cent for a plea of guilty was manifestly excessive.
There remains the question whether the application of the totality principle by the sentencing judge had the effect of rendering the total sentence manifestly excessive. The purpose of the totality principle may be broadly described as requiring a sentencing judge when imposing consecutive sentences to review the aggregate sentence and determine whether it is just and appropriate. One objective is to ensure that the offender is not subjected to a crushing sentence not in keeping with his or her record and prospects: Postiglione v The Queen (1997) 189 CLR 295 at 304, 340; [1997] HCA 26; see also Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70.
Nonetheless, a conclusion that an aggregate sentence is crushing does not necessarily mean it is not just and appropriate. The relationship between the totality principle and the concept of a crushing sentence was explained by Gleeson JA in GS v R in the following terms at [50]-[51]: "[50] The relationship between the totality principle and the concept of a 'crushing sentence' was considered by this Court in R v MAK at [15]-[18], where Spigelman CJ, Whealy and Howie JJ said: 15 ... Whenever the Court sentences an offender for multiple offences, including when there are different victims, or sentences an offender who is already serving a sentence after conviction for other offences, it is necessary for the judge to ensure that the aggregation of all of the sentences is a 'just and appropriate measure of the total criminality involved': Postiglione v The Queen (1997) 189 CLR 295 at 307-308 per McHugh J. The need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences arises for at least two reasons. 16 The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. As Malcolm CJ said in R v Clinch (1994) 72 A Crim R 301 at 306: ... the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years may be appropriate for another set of offences, each looked at in isolation. Where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences. 17 The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint. 18 A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences. [51] The description of a sentence as crushing on the offender is but one of the matters that is taken into account in determining whether he is beyond the range of sentences properly available to the sentencing judge: R v Cumberbatch (2004) 144 A Crim R 253; [2004] VSCA 37 at [12] (Chernov JA, Vincent JA and Bongiorno AJA agreeing). In Paxton v R [2011] NSWCCA 242 Johnson J (Tobias AJA and Hall J agreeing) explained at [215]: An assessment whether a particular sentence is a 'crushing sentence' must have regard to the offence or offences committed by the offender, the maximum penalties and standard non-parole periods relevant to those offences, and all objective and subjective factors which should be appropriately brought into account on sentence, together with principles concerning accumulation, concurrency and totality. As Grove J observed in Ta'ala v R [2008] NSWCCA 132 at [42], 'justice is individual and each offence and each offender requires assessment'."
In the present case, the offences the subject of counts 2 and 3 were distinct offences, albeit of the same nature. It does not seem to me that the criminality involved in these two offences could be properly addressed by imposing concurrent sentences. A degree of accumulation between them was appropriate and it seems to me that a period of three years' accumulation between them was not manifestly excessive.
Nor do I think that the further accumulation of five years between the sentences imposed on counts 2 and 3 and the sentence on count 1 is inappropriate. Although the ultimate sentence is undoubtedly severe, it seems to me that having regard to the total criminality involved, the applicant's lack of remorse associated with his ongoing commitment to Islamic State justified the total sentence of 38 years which was imposed. In my opinion it could not be said to be unreasonable or plainly unjust.
It follows that ground 1 of the grounds of appeal has not been made out.

Conclusion

In the result I would make the following orders: 1. Grant the applicant leave to appeal. 2. Appeal dismissed.
PRICE J: I agree with the reasons of the Chief Justice and the orders proposed.
N ADAMS J: I have had the advantage of reading the judgment of the Chief Justice in draft. I agree with the orders proposed by his Honour for the reasons provided.

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: 23 November 2020

(2019) 101 NSWLR 319

(2019) 100 NSWLR 110

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