Solicitors:
Australian Government Solicitor (Plaintiff)
Legal Aid NSW (Defendant)
File Number(s): 2023/426568
[2]
Background
Mr Ibrahim Ghazzawy (the defendant) was born in October 1995, and is accordingly now aged 28 years. He grew up in the suburbs of Sydney in a family of Lebanese descent and Islamic faith, although they were not particularly devout. Of low average intelligence, the defendant left school before completing year 12. He worked in a number of jobs, including for a time with his father, and married young, in circumstances which are unclear to me. For a time, he was abusing cannabis, and, I infer, somewhat aimless in life. Things changed when he commenced to explore Islam more deeply: a positive aspect of that exploration is that he put that prohibited drug to one side. A deeply negative aspect is that, by the age of 18 years, he had adopted the religious and philosophical underpinnings of the notorious movement known as the Islamic State (IS). He also became committed to violent jihad. All of that I infer, was (at the least) under the influence of a group of older men of much stronger personalities, who were also far more committed, and dangerous.
At around the same time, when he attempted to travel with a young friend to Morocco, purportedly for a North African holiday, the Australian security services seized his passport, thereby effectively prohibited him from departing this country. That was based on the suspicion that he was seeking to fight in foreign wars in the Middle East. That disputed accusation led to a deep sense of grievance on his part; which event or emotion was cause and which was effect is not entirely clear to me, and in any event each may have been something of both.
In the event, over the course of about two days, the defendant created a number of documents which set out ideas for the commission of terrorist acts, and which were found in the home of one of the other men. They had been shared literally and intellectually, in that other members of the group had made approving notations upon them. Some of the ideas of the defendant were, in my opinion, bordering on the fantastical - for example, decamping from the city, living off the land in the bush, radicalising First Nations people of this country, and reaching a point of being able to wage a prolonged partisan war against the Australian security forces. One measure of the sophistication of the defendant and his knowledge of military matters may be that he referred to engaging in "gorilla warfare".
Other ideas, however, were not so fantastical. One was an attack on the main gate of Lithgow Gaol, presumably with firearms. Another was an attack on the Australian Federal Police headquarters in Sydney, albeit the document makes clear that the defendant was not even aware whether it was located in Parramatta or the centre of the city. With regard to the latter idea for a terrorist act, I believe I am entitled to take judicial notice of the fact that a fatal action of that kind did indeed take place against a police headquarters in Parramatta several years ago; I hasten to add that there is no suggestion that the defendant played a direct or indirect role in that.
The defendant was charged with the offence of making a document connected with the preparation of a terrorist act, knowing of that connection, pursuant to s 101.5(1) of the Criminal Code Act 1995 (Cth) (the Code). That offence carries a maximum penalty of imprisonment for 15 years. He pleaded guilty, and the agreed facts tendered on sentence provide at their commencement details of his conceded state of mind at the time.
It was clear on sentence that this then teenager had no effectual criminal record. There was no suggestion - and I interpolate that there has never been any suggestion - that the defendant suffers from any diagnosable psychiatric or even psychological condition. In the absence of sworn evidence from the defendant and exercising the well-known curial caution about accepting on sentence untested statements of offenders to third parties, the sentencing judge, Bellew J, was not prepared to accept that the defendant had renounced his extremist views. His Honour did find, however, that the plea of guilty evidenced some measure of remorse.
In the event, on 8 May 2017, a head sentence of 8 years 6 months was imposed, with a non-parole period of 6 years 4 months: R v Ghazzawy [2017] NSWSC 474.
On a successful appeal with regard to a presently irrelevant legal matter, the defendant was resentenced to a head sentence of imprisonment for 8 years, with a non-parole period of imprisonment for 6 years, to commence on 10 December 2015: Ghazzawy v R (Cth) [2021] NSWCCA 70.
In accordance with the Commonwealth sentencing regime, the non-parole period was required to be 75% of the head sentence. In accordance with the administration of the same regime, the defendant was required to demonstrate exceptional circumstances in order to be granted parole at any time after the expiry of his non-parole period. He failed to do so, with the result that he has served a period of eight years in continuous custody, much of it in extremely constrained conditions, never having intersected with the criminal justice system before. I shall set out later in this judgment a sketch of events in the life of the defendant during that time, including his impressive movement towards rehabilitation.
[3]
Application, and urgency of resolution
It is in those circumstances that the Attorney General for the Commonwealth (the plaintiff) moved upon a summons seeking, pursuant to Division 105A of Part 5.3 of the Code (the Division), an interim supervision order (ISO) of 28 days against the defendant.
The sentence of the defendant expires entirely on the morning of Saturday, 9 December 2023. The matter came before me on Wednesday, 6 December 2023, the documentary evidence was voluminous, and the hearing occupied the entire day. As the transcript shows, I accepted unreservedly apologies from officers of the plaintiff and his legal team for that state of affairs.
I also explained that I could not guarantee that a determination with reasons could be provided before the release date of the defendant, but that I would do so if reasonably practicable. I have done so, but I trust that in these circumstances I will be forgiven by the parties (and any other reader) if this judgment is notably short.
[4]
Real issues
The defendant - who was represented by a legal team expert in criminal and quasi-criminal matters - opposed the imposition of an ISO. Although it was accepted that all "mechanistic" statutory preconditions for the making of such an order had been established, the statutory test that is the fulcrum for imposing an ISO was said not to have been (there was a related dispute about how I am to understand that test, and in particular its degree of rigour).
If I were against the defendant on that, it was accepted (after a useful period of negotiation between the parties) that I could be satisfied that all of the conditions proposed by the plaintiff pass the various statutory tests in s 105A.9A of the Code.
[5]
Approach to central test
The first dispute that I resolve is the meaning of the statutory test to be found in s 105A.9A.
Speaking generally, I accept the submission for the plaintiff that I should adopt the understanding provided by Dixon J in Attorney-General v Khan [2022] VSC 507. That is not only as a matter of judicial comity with regard to the understanding of a Commonwealth statute; it is also because I respectfully believe that the analysis of his Honour is correct.
In my opinion, s 105A.9A is speaking of a (subjective) satisfaction on my part (if a standard of proof is required, on the balance of probabilities) that there are (objectively) reasonable grounds for considering that an extended supervision order (ESO) will be imposed upon the defendant.
The use of the word "will" in the statute gave me pause for thought as to whether or not what is required is a state of (objectively reasonable) certainty, or perhaps something approaching it. I have ultimately come to the view that, despite the use of that word, the section is speaking of a subsequent potentiality, albeit one with regard to which a judicial officer must be satisfied that there are reasonable grounds for considering that it will come to fruition.
That test, of course, leads one back to the anterior test for imposing an ESO, to be found in s 105A.7A(1)(b), and founded upon establishment on the balance of probabilities of an unacceptable risk of committing a serious terrorist offence.
It also leads one to the list of statutory mandatory matters for (indirect, at this stage) consideration to be found in s 105A.6B. As I said to the Bar table during the hearing, I have reflected on all of those factors, and trust that this judgment will refer to all of them, perhaps often fleetingly, but have no intention in the constraining circumstances of working through them mechanistically.
[6]
The course of eight years in prison
Returning now to the progress of the defendant since his incarceration: for well over five years at its commencement, he was held in the well-known High Risk Management Unit in the Goulburn Correctional Complex (the Unit). Inevitably, his conditions of custody were extremely constrained, in terms of physical conditions of custody, contact with the outside world, and opportunities for rehabilitation and therapy. Also inevitably, the only other prisoners with whom he could associate within the Unit were those who had been judged by the Department of Corrective Services (the DCS) to be very dangerous; some of them, indeed, were his co-defendants in the matter that bought him to prison in the first place.
At the start of his sentence, I think that it is clear that he was an angry, embittered young man. But there has been a marked settling and thereafter change over the years, and the fact that he is currently held on main discipline in a regional correctional centre speaks for itself. It is true that there have been several ugly interactions with prison officers over the years, especially in the Unit, but in the scheme of things - not least the enormous emotional pressure that this still young man has been under since he was a teenager - I give them minimal adverse probative value.
The defendant has also successfully engaged in many rehabilitative programs, including but not limited to "de-radicalisation". As for that, I accept on balance that his current emotional and intellectual position is renunciation of violent jihad, and of the religious, political, and philosophical ideas that led him to write with enthusiasm as an 18 year old of possible acts of terrorism. He remains a religious person, but I regard his current state of belief as protective, and not dangerous.
It is true that, when pressed, the defendant has refused to renounce violence in all contexts whatsoever. But the simple fact is that the criminal justice system of every State and Territory in Australia, and of the Commonwealth by way of Chapter 2 of the Code, excuses the use of force in the contexts (at least) of self-defence, defence of another, and necessity. In similar vein, I think that many religiously committed people could, if placed in extreme circumstances, be moved to use force to defend their deeply held beliefs. In short, I assess his refusal to renounce force in all contexts whatsoever as having minimal probative value as well; if anything, I would have regarded such a blanket renunciation as insincere, indeed suspicious.
Relatedly, I also accept that, speaking generally, his family (with whom he intends to live upon his upcoming release) are a positive, protective influence; that they did not play even an indirect part in his offending; and that they simply wish him to return to the community and enjoy a lawful, constructive, and happy life.
For completeness, I record that a well-respected forensic psychiatrist has provided recent reports about the defendant. But to my mind they merely confirm what is well-established: he suffers from no physiological or psychiatric illness to do with brain or mind; actuarial prediction of risk is notoriously unreliable, and doubly so with regard to persons convicted of terrorist offences; and one can bring the common sense analysis of a layperson to the questions of risk that arise in this matter.
[7]
Determination
All of that argues powerfully, I think, for me to decline to impose an ISO. And certainly, the question has been finely balanced in my mind during the time that I have had a chance to reflect. Nevertheless, I answer the question posed by the crucial section in the affirmative. I say that for the following reasons.
First, the test is ultimately a mixture of subjective/objective states of mind, to do with a potentiality. It does not require affirmative belief on my part. Nor does it require affirmative satisfaction that an ESO will certainly be imposed. To my assessment, the test for the imposition of an ISO is not a particularly onerous one.
Secondly, it is established to my satisfaction that a significant cause of the commission of this unquestionably grave offence was the pernicious influence of other more intelligent, and forceful, people, whose influence the defendant was unwilling or unable to resist. Indeed, that was a part of the plea in mitigation presented to the learned sentencing judge. Whilst incarcerated, the defendant was exposed to many such people for a further period of years. He has been incarcerated for a continuous period of eight years, and has had no experience of living in the community for that length of time. Whilst I accept that he is no longer a teenager and in fact is approaching 30, I believe that he remains vulnerable to negative influences, and emotionally and intellectually unsophisticated.
Thirdly, it is established to my mind that the milieu in which the defendant will be living will feature such influences, not just with regard to criminality generally, but also with regard to Islamic extremism, at least to some degree. To be clear: to recognise that is not subjectively to blame the defendant for (by way of example) the circles in which he moved in high school, or the persons who have been and will be his friends and acquaintances on his release. Rather, it is to accept the objective reality of the persons to whom he will be exposed in the community, and his admitted difficulty in being able to avoid contact with them. In short, there is a concern in my mind about the phenomenon that led to his incarceration as a teenager re-occurring, at least to some degree.
Fourthly, to my mind there has been one significantly troubling aspect of his behaviour in custody, not yet mentioned in this judgment, as follows.
Reasonably recently, he has on a number of occasions subverted the system for telephone contact by prisoners with the outside world by having his permitted interlocutor connect him to a third party, with whom contact was not permitted. Some of that, I accept, was spontaneous, perhaps even inadvertent. But some of it was not.
Why the defendant - who must have known that his calls were being monitored; must have known that the expiry of his head sentence was imminent; and must have known that, in light of his conviction for a terrorist offence, such infractions would be considered very seriously - undertook that course of conduct is unclear to me. His counsel was unable to provide an easy explanation for it. Indeed, the conduct of the defendant may have a flavour of wilfulness, even irrationality to it. But however one characterises it, it demonstrates a readiness to subvert a system of restraint in communications by persons who have been deprived of their liberty that, regrettably, casts something of a pall over all of the other progress that has been made. And, combined with other factors, it raises a question in my mind about his possible attitudes and conduct once he is living in the community again.
Fifthly and finally on this point, by way of the combined operation of the test for imposing an ISO with the test for imposing an ESO, the Commonwealth Parliament has commanded me to have regard to the object of the Division, by way of the first mandatory factor for consideration.
The foregoing is a very concise statement of the reasons why I have ultimately accepted the submission of the plaintiff, and propose to impose an ISO upon the defendant.
Separately and finally, I have reflected upon the proposed conditions of the ISO for myself, and am satisfied that they pass the statutory test for their imposition, not least because I was assured by the Bar table that all of them are open to exemption by those supervising the defendant.
[8]
Orders
I make the following order:
1. Pursuant to s 105A.9A(4) of the Criminal Code an interim supervision order is imposed upon the defendant for a period of 28 days, commencing on 9 December 2023, and subject to the conditions attached to this judgment.
Attorney General of the Commonwealth of Australia v Ghazzawy - ISO Conditions_Redacted (168755, pdf)
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Decision last updated: 08 December 2023