Booth v Namoa

Background 14 Ms Booth set out a comprehensive account of the factual background to Ms Namoa's and Mr Bayda's offending. On 30 December 2015, Ms Namoa and Mr Bayda went through an Islamic ceremony of marriage, but he, and possibly she, no longer regard that ceremony as legally effective. 15 Part of Ms Namoa's current circumstances appear in the sentencing remarks of Fagan J. His Honour had the benefit of hearing from both Ms Namoa and her co-offender in the sentencing hearing. He was able to observe them being cross-examined and used that opportunity to make his findings of fact. In sentencing, his Honour found (at [5]) that the offence was of a relatively low order of seriousness and that there were significant mitigating circumstances with respect to each of the offenders, justifying determinate sentences of moderate duration. 16 He found that Ms Namoa was in agreement with, and expressly supported, Mr Bayda's intention to carry out a terrorist act. Initially, her co-offender agreed to carry out an attack on people in Sydney during the New Year's Eve festivities on 31 December 2015. His Honour found that the agreement extended beyond that proposed attack, which, in the event, was aborted. He found that Ms Namoa had encouraged her co-offender to perpetrate that attack, including by sending him a text message that she said: "I wanna do an Islamic bonnie and Clyde version on the kuffs haha". Fagan J found that the expression "kuffs" was a contemptuous reference that both offenders used to refer to people who did not follow Islam (at [10]-[13]). 17 His Honour found that on 13 January 2016 Ms Namoa was in possession of a weapon being a 20cm knife, which was wrapped in an Islamic State flag and that Mr Bayda had been in possession of the knife and flag previously. Fagan J found that those circumstances would justify the jury finding that she was holding the knife and flag in safekeeping pursuant to an arrangement between her and Mr Bayda and that it was implicit in the jury's verdict that they had found the agreement subsisted from 30 December 2015 to at least 13 January 2016, although his Honour found that the agreement extended for a lengthier period when entering the conviction. 18 Importantly, his Honour had regard to both Ms Namoa's evidence and a report by Dr Richard Furst dated 1 December 2018. Dr Furst is a consultant forensic psychiatrist. His Honour found (at [38]) that Ms Namoa's induction into Islam and Dr Furst's report on her education and psychology showed that she was naïve and suggestible. He said that her evidence on sentence and her demeanour in the witness box: left me with the impression she could well have been taken in by false boasting from Bayda that he was on a suicide mission. 19 His Honour found that, soon after the authorities seized the 20cm knife from Ms Namoa on 13 January 2016, Mr Bayda purchased another knife with a folding blade. His Honour accepted Ms Namoa's evidence that Mr Bayda had not consulted her about buying the new knife and that, as soon as she found he had it, she disposed of it (at [41]). His Honour quoted (at [51]) from a letter that Ms Namoa had written to him as the sentencing judge (that is also in evidence before me) in which she said: I acknowledge that I was a fanatic and that I've accessed a substantial amount of Islamic State propaganda, as well as downloading various books and documents onto my phone. 20 Fagan J also found (at [71]) that both offenders had adopted a fanatical Islamic hostility toward non-Muslims and towards Australia's liberal democratic society in accordance with religious instruction they had received, both directly and online, and that those views were not capable of being regarded as mere antisocial or political views, but involved the infliction of violence on non-Muslims as an act of religious duty and devotion. His Honour found (at [94]) that Ms Namoa's conduct at the time of her arrest and her letters from prison showed her immaturity, lack of critical judgment and previous immersion in jihadist thinking. 21 He found that she had told Dr Furst that she had abandoned her extremist views by about December 2017, and that she had learned that Mr Bayda had by then become a Christian and that she wanted to follow him. Fagan J found (at [97]) that, on 7 October 2018, two days after the jury returned the guilty verdict, Ms Namoa informed correctional staff at the facility where she was held that she had renounced Islam altogether and had reverted to Christianity. His Honour said that, on first impression, that conduct provoked cynicism about her sincerity. However, he accepted her evidence as genuine and found that she had continued to wear the hijab on the advice of correctional staff in order to conceal from other inmates that she was not practising the Islamic religion. His Honour accepted that there would be a risk of violence towards her by other Muslim inmates if they believed she had renounced their faith. 22 Although his Honour did not find it necessary to determine with what degree of sincerity Ms Namoa had reverted to Christianity, he was satisfied (at [101]) that she no longer accepted any command of Allah for Islamic domination by violence. Fagan J also found support in the surrounding circumstances (at [102]) for her evidence that her belief in jihadism was a childish phase from which she had matured, including that she had not studied Islamic scriptures with sufficient thoroughness or understanding to have acquired them from them a deeply embedded intellectual belief in a duty of religious warfare. His Honour found that she had been drawn into her previous salafi jihadism beliefs at a superficial and emotional level, because that doctrine gave her a sense of belonging to something, as well as a sense of purpose and a channel for expression of aggressive feelings. 23 Fagan J found that, being 18 years of age at the time of the offending, Ms Namoa was highly susceptible to Islamic brainwashing and that her educational difficulties and concomitant frustration and anger during school years necessarily led to her feeling a degree of isolation that was probably compounded by her lack of involvement in the workforce since leaving school at 16. His Honour said (at [103]-[104]) that, having considered Ms Namoa's developmental history, her extensive text exchanges and intercepted phone conversations with her co-offender, her letters, oral evidence and her demeanour in the witness box, he had no hesitation in accepting the analysis of Dr Furst that his Honour set out in his reasons which I repeat below, namely: Ms Namoa has a history of mental health problems that have been present since at least 2010, probably longer, and persisted throughout her late childhood and teens, including depression, anxiety, emotional dysregulation, low self-esteem, low self-worth, anger issues, learning difficulties and a level of cognitive function that appears to be well below average… Her history of emotional and behavioural instability, low self-esteem, and low self-worth were identified by [a clinical psychologist who reported on her in 2011, 2012 and 2016] as factors that made Ms Namoa vulnerable to being influenced by others and were also thought to be related to her recent conversion to Islam. Her suspected learning difficulties were thought to be manifesting in social and cognitive immaturity, with suspected deficits in consequential thinking and a general executive function ... including problem-solving and higher order thinking. In my opinion, the deficits identified by [the clinical psychologist] are clearly related to her mental disorders/conditions and likely played a role in her conversion to Islam and attraction towards the extremist Jihadist ideologies of Islamic State… Her mental health problems outlined above probably also made her vulnerable to the influence of her co-offender and/or other individuals holding extremist Jihadist ideologies, which is likely to have been a significant factor in her offending. 24 His Honour made allowance for her youth that allowed her to be seduced by an ideology promoted by propaganda. He found that Ms Namoa lacked the intellectual strength to bring reason and humanity to prevail against the outrageous concepts that had previously influenced her. 25 His Honour also found (at [105]) that a crime of the nature the subject of the two offenders' convictions was an attack on the framework of government and law. He found (at [115]) that neither of the co-offenders, at the time of his sentencing, remained motivated by jihadist ideology. 26 He also found (at [117]) that the causal effect of Ms Namoa's mental disturbances made it inappropriate to penalise her at a level that otherwise might have been called for by way of a deterrent to others. Fagan J found that both Ms Namoa and Mr Bayda were demonstrably immature, even for their age, and that Dr Furst's opinion supported that finding in Ms Namoa's case. He found (at [120]) that both offenders were genuine both in their renunciation of fanatical beliefs and in their expressions of remorse and contrition (at [120] and [125]). He said (at [121] and [125]): Both offenders have at least commenced to develop reason and humanity in place of blind, submitting belief. The evidence heard since the jury gave their verdict justifies some confidence that on their return to the community Bayda and Namoa will show respect for the beliefs of others and for the laws of this country which protect the freedom of its citizens to pursue personal spirituality in their own way. … Namoa has cooperated with police to the extent of allowing herself to be interviewed in custody and answering questions in a manner which the responsible officer regards as frank. I do not consider that her compliance with the police request in this respect warrants specification of a particular discount but I treat it as reinforcing her expressions of contrition and confirming her progress in rehabilitation. It contributes to the overall mitigation of her penalty. 27 The material before Fagan J, including the transcript of Ms Namoa's evidence on sentence and the documents she had written, are in the material before me. Ms Namoa a year ago gave evidence at the sentencing hearing. There is no more recent, relevant material to suggest any reason to think, for present purposes, that the positive factors in Ms Namoa's favour to which Fagan J referred have not continued to be in place.