Khalid v R

Court of Criminal Appeal (NSW)|2019-10-04|Before: Bathurst CJ, Bell P, Harrison J, Bellew J

[This headnote is not to be read as part of the judgment] Sulayman Khalid (the applicant) pleaded guilty to the offence of conspiring to do acts in preparation for a terrorist act or acts contrary to subsection 11.5 and 101.6(1) of the Criminal Code (Cth). The applicant was sentenced to a term of imprisonment of 22 years and 6 months with a non-parole period of 16 years and 9 months. The applicant and his co-conspirators adhered to the religious ideology of violent Jihad. During the period of the conspiracy (between about 7 November 2014 and 18 December 2014), the applicant and his co-conspirators agreed to do acts in preparation for, or planning of, a terrorist act or acts. The applicant was 20 years old at the time of the conspiracy. The statement of facts described that the applicant was "the leader of the group". The terrorist act was to be a religiously inspired act of terrorism, namely violent Jihad, and was to involve firearms. The nature of the act or acts and the proposed target or targets were unresolved but included the killing of a member or members of either the NSW Police Form or the Australian Federal Police and/or attacks upon government buildings. The conspiracy involved sourcing, obtaining and retaining firearms and ammunition. The co-conspirators had numerous telephone communications about impending martyrdom, training for a domestic terrorist attack, planning a domestic terrorist attack and firearms and ammunition. The co-conspirators met at the applicant's premises for the purpose of considering documents made in preparation for a terrorist attack. The applicant sought leave to appeal against his sentence on two grounds. The first ground of appeal was that the sentencing judge erred by failing to take into account the utilitarian value of the applicant's plea of guilty. The second ground of appeal was that the sentence was manifestly excessive having regard to the objective seriousness of the offence. The Crown accepted that the sentencing judge erred by failing to take into account the utilitarian value of the applicant's plea. It was thus necessary to resentence the applicant. It was unnecessary for the Court to deal with Ground 2. Resentence The Court (Bathurst CJ, Bell P, Harrison J agreeing) after an allowance of 10% for the utilitarian value of the plea, resentenced the applicant to a term of imprisonment of 20 years with a non-parole period of 15 years: [80]-[97] (Bathurst CJ); [99] (Bell P); [100] (Harrison J). The Court held: 1. "In 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". Faheem Khalid Lodhi v Regina [2007] NSWCCA 360; (2007) 179 A Crim R 470; Elomar v R [2014] NSWCCA 303; Alou v R [2019] NSWCCA 231 referred to. 1. Having regard to the nature of the offences and the purpose of the statutory provisions, namely to intercept and interrupt planned acts of terror, mitigating factors such as the prospect of rehabilitation and other subjective factors are given substantially less weight than in other forms of offences. Faheem Khalid Lodhi v Regina [2007] NSWCCA 360; (2007) 179 A Crim R 470; Director of Public Prosecutions (Cth) v MHK (No 1) (2017) 52 VR 272; [2017] VSCA 157 referred to. 1. The offence of doing acts in preparation for a terrorist act or acts is an anticipatory offence which enables intervention by law enforcement agencies at a much earlier time than the commission of a planned offence. In those circumstances, the proximity of the planned offence, although relevant, does not necessarily determine the objective seriousness of the offence. It does not follow from the fact that the preparatory acts were even in their infancy that the offence must be objectively less serious. The main focus must be on the offender's conduct and intention at the time the offence was committed. Faheem Khalid Lodhi v Regina [2007] NSWCCA 360; IM v R [2019] NSWCCA 107 referred to. 1. Having regard to the nature of the offence, considerations relating to the youth of the offender need to be appropriately moderated when the offender was "involved in serious and dangerous offending". Director of Public Prosecutions (Cth) v MHK (No 1) (2017) 52 VR 272; [2017] VSCA 157; IM v R [2019] NSWCCA 107; Alou v R [2019] NSWCCA 231 referred to. Harrison J also held at [101]-[104]: 1. Any term of imprisonment, including what some may consider to be a lenient sentence, is a severe punishment. If rehabilitation is to retain its importance as a significant element of the sentencing equation, it is equally important that custodial conditions that are (arguably) excessively punitive or gratuitous should not frustrate the prospect that an offender might emerge from custody less dangerous and less committed to some fanatical ideology than when he or she first entered the prison system. There is a very real risk, except where it is necessary for the safety of corrections staff or the protection of the wider community, that the differential treatment of terrorism offenders, or even the undiscriminating assessment of the risks posed by individual offenders, may only serve to affirm and entrench dangerous and unacceptable views.

Judgment

BATHURST CJ: The applicant, Sulayman Khalid (the applicant), was charged with the following offence: "Sulayman KHALID, Jibryl ALMAOUIE and IM Between about 7 November 2014 and 18 December 2014 at Sydney, in the State of New South Wales, did conspire with each other and Mohamed AL MAOUIE, Ibrahim GHAZZAWY, Farhad SAID and diverse others to do acts in preparation for a terrorist act (or acts). Contrary to subsection 11.5 and 101.6(1) Criminal Code 1995 (Cth) (Law Part Code: 41450 with 51411)."
The offence carries a maximum penalty of life imprisonment.
The applicant pleaded guilty to the offence and was sentenced on 3 November 2017 to a term of imprisonment of 22 years and 6 months with a non-parole period of 16 years and 9 months.
The applicant has sought leave to appeal on the following grounds: "Ground 1: His Honour erred by failing to take into account the utilitarian value of the applicant's plea of guilty. Ground 2: The sentence was manifestly excessive having regard to the objective seriousness of the offence."

Background facts

A statement of facts was tendered at the hearing. The content of that statement was adopted by the sentencing judge and is not in dispute in the appeal. The facts as taken from that statement may be summarised as follows.
The applicant, IM and Almaouie (the conspirators) adhered to the religious ideology of violent Jihad, subscribing to that inspired by ISIS, Al-Qaeda and like-minded groups and their supporters.
The cause that was to be advanced in the proposed terrorist act or acts was that of violent Jihad. The essential feature of the cause, which the conspirators believed to be a religious obligation, was to engage in violence to advance what they considered to be the interests of Islam.
During the period of the conspiracy (between about 7 November 2014 and 18 December 2014), each of the conspirators was committed to Islam and used the term 'Jihad' to mean 'violent Jihad'.
During the period of the conspiracy and for some time before, the applicant was active in seeking to advance Islam. He actively proselytized for Islam in the street and posted videos of his activities online. IM had a video on his phone of the applicant preaching Islam in the street.
The applicant had publicly displayed his support for the violent Jihad espoused by ISIS, including by obtaining and wearing clothing with badges and adornments of ISIS. He appeared on the television programme 'Insight' and indicated his support for violent Jihad by wearing the ISIS flag on his sleeve. The applicant had also made a YouTube video which featured an ISIS emblem and the applicant making "a thinly veiled threat against various Western security services, including those of Australia".
The applicant was also the conspirator who sent religious advice and sayings to other conspirators. He "promoted violent Jihad as the leader of the group during many telephone communications with IM, during which they spoke about martyrdom and committing some form of terrorist act". The applicant coded telephone conversations with Almaouie during that period which referred to ammunition.
The facts outlined the conspiracy in the following terms.
The applicant and his co-conspirators agreed to do acts in preparation for, or planning of, a terrorist act or acts. The terrorist act was to involve firearms and was to be a religiously inspired act of terrorism, namely violent Jihad. The nature of the act or acts and the proposed target or targets were unresolved but included the killing of a member or members of either the NSW Police Force or the Australian Federal Police and/or attacks upon government buildings.
The conspiracy coalesced between about 2 November 2014 and 18 December 2014. The conspirators began planning attacks outlined in documents located in the applicant's house on 18 December 2014.
The conspiracy involved: 1. Considering, orally and in writing, various possible forms of terrorist acts including ways to carry out the act or acts (including using firearms in a direct attack or using guerrilla tactics); 2. Considering possible targets for a terrorist act or acts, such as individual members of the New South Wales Police Force or the Australian Federal Police, and the Australian Federal Police headquarters building; 3. Sourcing, obtaining and retaining firearms and ammunition; 4. Numerous telephone communications (by text message and by telephone conversations) about impending martyrdom, training for a domestic terrorist attack, planning a domestic terrorist attack and firearms and ammunition; and 5. Meeting at the applicant's premises at Regents Park, during the evening and early morning of 17 and 18 December 2014 for the purpose of considering documents the conspirators had made in preparation for a terrorist act.
The content of the planning documents, together with Almaouie's possession of firearms and ammunition and IM sourcing four firearms showed that the applicant was engaged in preparation and planning for an act or acts of terrorism by using firearms to kill those targeted.
The facts described the role of the applicant in the conspiracy in the following terms: "16. The offender was the leader of the group. He was a self-appointed preacher and used the name 'Abu Bakr'. He gave advice, including religious advice, to other conspirators over the period of the conspiracy. He expressed strong views about the correctness of extremist ideology in a number of intercepted conversations. He also organised meetings at his premises that were attended by other members of the group. 17. The offender, who was 20 years old at the time of the conspiracy (having turned 20 on 11 November 2014, four days into the conspiracy period) and is now 22 years old, had a large number of intercepted telephone communications with the much younger 'IM', who was 14 years old at the time of the conspiracy. 18. The offender's telephone communications with 'IM' indicate that the offender and 'IM' had a strong desire to engage in a terrorist act, including an act of martyrdom. In a number of telephone communications between him and 'IM', the offender urged 'IM' not to go to Syria but to stay and pursue a terrorist act in Australia instead. 19. The offender was careful to use code words and at various times made it clear in intercepted conversations that he would not speak about certain matters on the phone, believed his phone calls to be under surveillance and that he was under physical surveillance by police. 20. The offender called members to attend at his premises and issued instructions to group members. He also retained the planning documents at his premises."
The facts described the documents obtained from the applicant's premises as messages agreeing to and encouraging the preparation and planning of a terrorist act. The documents were connected with the preparations for such an act, both on their face and in the circumstance of their creation. They also demonstrated that the acts contemplated involved the use of firearms. It is unnecessary to set out details of the documents as their effect was included in the sentencing judgment in a manner which for the purpose of the appeal is uncontroversial.
During the execution of search warrants at Almaouie's residence on 18 December 2014, operational firearms and a large quantity of ammunition were located in his bedroom. On 6 December 2014, IM went to his uncle's house and took possession of firearms for the purpose of posing for photographs and sending those to the applicant to check how they were housed and to generally assess if those firearms might be seized and used by the group.
There were also lawful interceptions of the applicant's telecommunications service. Monitoring of the service showed that he was in regular contact with his co-conspirators using an intentionally false name and code words. The key topics of conversation between the applicant and IM were the desire to die, in particular to die as martyrs together and IM's questions about whether it was better to do a terrorist act here in Australia or to go overseas and to engage in fighting there, to which the applicant responded it was better to do so here, and they would do so. They also had coded discussions about firearms and ammunition.
The facts referred to a conversation between the applicant and IM on 17 December 2014 in which IM was becoming impatient and wanted to know when the terrorist attack would happen. IM asked the applicant whether "the wedding date" had changed. The "wedding date" was code for the date of the terrorist act or acts.
On 2 November 2014, the applicant and three others visited a prisoner at Goulburn jail. The conspiracy commenced after that jail visit. The applicant was responsible for arranging meetings with the co-conspirators and others and encouraged them to meet at his premises and at other places such as in parks, and from time to time to pray.
The applicant increased the frequency of meetings with the conspirators and others from 29 November 2014 until the execution of a number of search warrants on 18 December 2014. The applicant and others used coded language to arrange the meetings.
The applicant was arrested on 23 December 2014 for the offending and has been in custody since that date.

The sentencing judgment

The sentencing judge noted that he was required to sentence the offenders in accordance with Pt 1B of the Crimes Act 1914 (Cth) (Crimes Act) and that he was required to fix a single non-parole period of at least three-quarters of the head sentence which is imposed. He stated that "the primary considerations" in sentencing for matters of this nature are "the protection of the community, the punishment of the offender, the denunciation of the offending, and deterrence, both general and specific". He said that "[s]ubjective circumstances and mitigating factors, including considerations of rehabilitation, are to be given less weight".
The sentencing judge also stated that "[t]he religious and/or ideological motivation of an offender is relevant to the issue of community protection, as well as to the assessment of the objective seriousness of the offending". He said that "where it was not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance". He said that matters relevant to assessing the objective seriousness of offending of this nature will include: 1. The degree of planning, research, complexity and sophistication involved, together with the extent of the offender's commitment to carry out the act(s) of terrorism; 2. The period of time involved, including the duration of the involvement of the particular offender; 3. The depth and extent of the radicalisation of the offender as demonstrated (among other things) by the possession of extremist material and/or the communication of such views to others; and 4. The extent to which the offender has been responsible, by whatever means, for indoctrinating or attempting to indoctrinate others, and the vulnerability or otherwise of the target(s) of the indoctrination, be it actual or intended.
The sentencing judge noted that the only criminal conviction recorded in respect of the applicant was a finding of guilt in the Local Court in September 2015 for a charge of stalk/intimidate in respect of which he was given a bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 12 months.
The sentencing judge made extensive reference to the evidence of a Mr Piazza which went to the applicant's conditions of incarceration. The sentencing judge noted the applicant was held in the High Risk Management Correctional Centre (HRMCC) at Goulburn which houses offenders who have been determined to represent a significant risk to the security of both the centre and the wider community. He noted that the applicant was currently classified as AA Extreme High Risk Restricted Inmate. He noted that the applicant was permitted legal visits between Wednesday and Sunday of each week, all such visits being 'non-contact', with Correctional Staff positioned in the general vicinity of where the visit takes place. The sentencing judge noted that since being taken into custody, the applicant has had a number of visits with relatives which were also 'non-contact' visits.
The sentencing judge noted that the applicant had reached what Mr Piazza described as 'Stage 2' of his 'behaviour management level'. He noted that the evidence was that as he progressed through further levels, his privileges would be greater.
The sentencing judge noted that Mr Piazza's evidence was that it was open to the applicant to access all medical and mental health services irrespective of his classification and designation. He referred to the Proactive Integrated Support Model (PRISM) which had been established to support the rehabilitation of offenders who have expressed certain religious or political views, or who have previously acted in a way that may be considered radical or extreme. The sentencing judge noted the evidence was that the applicant had made no application to enrol in the program and there was presently no information to suggest that he had renounced any extremist ideology.
The sentencing judge noted that there was annexed to Mr Piazza's affidavit a number of case notes concerning the applicant. One recorded the applicant "screeming [sic] in the middle of the night and saying strange things" and appearing "hostile and very disturbing". Another by the same author indicated that the applicant had indicated to him that he would like to learn more about Islamic jurisprudence.
The sentencing judge also referred to a further case note annexed to Mr Piazza's affidavit which referred to the applicant expressing an interest in receiving a visit from a Rabbi because he "wanted to learn as much as possible about all things". A further case note referred to the applicant being visited by the Imam, who reported that the applicant had told him that he was "under pressure by a belief he had a demon in his body directing him to think and act in a manner not comfortable to [him]". The sentencing judge noted that there did not appear to have been a mental health assessment.
The sentencing judge also referred to the oral evidence of Mr Piazza which explained that the applicant was housed in a cell measuring approximately 2 metres x 3 metres which had no fresh air and limited exposure to natural light. He noted that the evidence was that the applicant's access to sporting areas was limited to one hour at any one time and must be booked in advance. He noted that Mr Piazza's evidence was that irrespective of the behavioural level reached by an offender, telephone calls must be conducted in English and limited to six minutes in duration. He also noted that Mr Piazza explained that although the PRISM Program is available to sentenced offenders, "technically" this was not so until the final 12 to 18 months of an offender's sentence.
The sentencing judge also noted Mr Piazza accepted that the frequency of 'complete lock-ins' (where inmates are detained in their cell for a full day) had increased to up to two times each week.
The sentencing judge made extensive reference to the occasion when the applicant was a member of the audience at the taping of the episode of a programme called 'Insight' on 12 August 2014. He noted that during the course of the program the applicant told the presenter that it was a "personal choice of anyone" who wanted to go and fight and that ISIS "do not want to bring anything but justice".
The sentencing judge also referred to YouTube footage entitled "A direct message to the Secret Services…". He stated it depicted the applicant "engaging in what might be described as a monologue which he specifically directed to law enforcement, and quasi-law enforcement agencies". He stated that the text of what the applicant said and his demeanour were both "confronting and threatening".
The sentencing judge also referred to the evidence relied upon by the applicant in support of his subjective case. He noted that a neighbour, Mr Xiang Qing Jong Meng, gave evidence that the applicant was "polite, quiet and nice". He also referred to the evidence of a journalist, Mr Neil Mercer, who had spoken to the applicant a number of times. He noted that Mr Mercer described the applicant as "young", "perhaps angry" and "naïve".
The sentencing judge also referred to evidence from Mr Abdul Raham Saleh who gave evidence that he had known the applicant for about six years, stemming in part from Mr Saleh's volunteer community work and from the fact that the applicant worked as a labourer in Mr Saleh's plumbing business. The community work involved Mr Saleh distributing what might be described as moderate Muslim literature. He noted that Mr Saleh emphatically stated that he had not seen any violent tendencies in the applicant. The sentencing judge also noted that Mr Saleh stated that the applicant "had never spoken to him, at any time, about violent jihad".
There was also evidence from Ms Sueha Belani, a primary school teacher, who had limited contact with the applicant since about 2013. He noted that Ms Belani described the applicant as a person who was a "really, really lovely young man" who "wouldn't hurt a fly". She "wholeheartedly disagree[d]" that the applicant's commission of the offence was consistent with his personality.
Similar evidence was given by the applicant's sisters and cousin and another family friend. The sentencing judge noted that the applicant's elder sister stated that she had visited the applicant in custody on a number of occasions and that he had expressed disagreement with the underlying philosophies of ISIS.
The sentencing judge also referred to a mental state examination of the applicant conducted by Dr Nielssen. He noted that Dr Nielssen observed that the applicant did not appear to be especially anxious or depressed and his concentration was unimpaired. He noted that Dr Nielssen expressed the view that the applicant did not meet the accepted criteria for the diagnosis of any kind of development disorder, acquired brain injury, psychotic illness, severe mood disorder or any other major psychiatric disorder. He noted that Dr Nielssen reported that the applicant had maintained that he was against violence and that he would have intervened to prevent any acts of violence had there been a specific plan. He noted that Dr Nielssen expressed the view that the applicant "would be expected to mature in his attitudes over time, and hopefully become more concerned with his own career and the care of his own family as he grows older".
The sentencing judge noted that Dr Nielssen did not state in specific terms that the applicant was suffering from any cognitive or psychological immaturity at the time of his offending. He noted that in any event, Dr Nielssen's opinions were based, at least in part, on accounts given to him by the applicant which were not the subject of sworn evidence and therefore "deserving of limited weight". He concluded that the applicant's youth was of "little weight in determining an appropriate sentence". He also noted that Dr Nielssen expressed the unequivocal view that the applicant was not thought to require any specific psychiatric care or counselling.
In considering the appropriate approach to sentencing, the sentencing judge noted that it was "both artificial and contrary to the concept of a conspiracy to attempt to precisely dissect the physical acts of each of the conspirators". He expressed the view that he was "not confined" to sentencing the applicant "on the narrow basis of what he physically did".
The sentencing judge noted that the conspiracy extended over a period of 6 weeks which, in comparison with other similar conspiracies, may be described as short. However, he noted it was "nevertheless a substantial period". The sentencing judge noted "what was done was both significant and wide ranging". He noted that targets and the methods by which attacks on those targets might be perpetrated were discussed and numerous firearms with a substantial quantity of ammunition were acquired.
He also noted that the applicant's "admitted act of being part of that criminal conspiracy was committed against a background of, and was inextricably linked to, an ideology which advocates violence towards people and property". He referred in particular to statements made by the applicant on the 'Insight' programme "something's gunna happen here" unless action was taken to remove Australian military forces from Iraq. He also referred to statements on the YouTube footage including that those who choose to reject Islamic teachings would have their faces "dragged through the pits of hell fire". The sentencing judge stated that the applicant's statements on that occasion must be assessed in the context of him having expressly directed them to law enforcement and/or quasi-law enforcement agencies.
In relation to the witnesses who gave evidence in support of his good character, the sentencing judge noted that the majority of the witnesses confirmed that the applicant had never discussed with them the subject of violent Jihad in circumstances where the evidence established that adherence to violent Jihad was part of the applicant's fundamental philosophy.
The sentencing judge noted the submission on behalf of the applicant that any plan was undeveloped and imperfect, to the point where there was really no plan at all. He said that it was true that the target of any proposed attack, or the method had not been precisely determined. However, the sentencing judge stated that even accepting that the plan under discussion was undeveloped in that sense, it involved, at the very least, the use of firearms for the purpose of attacking property and people. The sentencing judge also noted that the fact the plan may have been at "an embryonic stage does not mitigate the seriousness of the offending" and that it did not follow that merely because the plan may have been in its infancy, the culpability of those involved must be low.
The sentencing judge rejected the submission that the acts being discussed were properly described as naïve or fanciful. He said that such appellations were not apt to describe discussing Australian Federal Police building as a "good target" for an attack, expressing the view that "something major" should be done, targeting the headquarters of a police force or intelligence organisation for the purpose of doing "something massive that will get them shocked and stuff up there [sic] organisation", or discussing the process of "taking out a dog", which the sentencing judge described as a clear reference to injuring or killing a police officer.
The sentencing judge noted these sentiments were expressed in circumstances where firearms and ammunition had actually been acquired.
The sentencing judge also rejected the suggestion that the conspiracy was "amateurish". He stated there was "nothing amateurish about a proposal that firearms be used for the purposes of (inter alia) carrying out a terrorist attack, particularly in circumstances where firearms and ammunition were actually acquired".
In dealing with the submissions as to whether the applicant was properly described as the "leader" of the conspiracy, the sentencing judge stated that there was "limited utility in attempting to establish, with absolute precision, a gradated hierarchy amongst the offenders". He stated that he was satisfied that the applicant was "responsible for the co-ordination of many aspects of the conspiracy" and that while all the conspirators obviously played an important role, the applicant's actions "place[d] him at a level above the others".
In that context, the sentencing judge described the applicant's participation in the following terms: "[95] Khalid was an admitted participant in a criminal conspiracy to engage in acts in preparation for terrorism, in which he occupied a co-ordinating role. In offending as he did, Khalid demonstrated that he was a devout terrorist. He was corrupted by a dangerous, violent and perverted ideology to which he unequivocally subscribed, which he wore as a badge of honour, but which has no place in any civilised society. His offending falls towards the higher end of the scale of objective seriousness. Considerations of general deterrence assume particular significance in determining an appropriate sentence (citations omitted)."
The sentencing judge dealt with the applicant's subjective case by reference to the various provisions of s 16A(2) of the Crimes Act 1914 (Cth). In relation to the plea of guilty (s 16A(2)(g)), the sentencing judge took the view that the authorities as they then stood meant that the "'utilitarian value' of a plea of guilty is not to be taken into account". He stated that in the present case, he was satisfied that the applicant's plea "may be some evidence of contrition and acceptance of responsibility". He stated that "[e]qually, the plea was entered at a late stage, after considerable case management. and in the face of what, in [his] view, was a strong circumstantial case". In these circumstances, he gave a discount of 10%for the fact that it demonstrated some contrition and an acceptance of responsibility.
The sentencing judge stated that there was "a strong need" for personal deterrence (s 16A(2)(j)). In relation to character, antecedents, age, means and physical or mental condition (s 16A(2)(m)), the sentencing judge accepted that the applicant had "no history of violent offending" and that he had "worked in various community capacities". He referred to the principles governing the sentencing of youthful offenders, including that the applicant's offending was "obviously of the utmost seriousness", was "properly regarded as adult-like behaviour" and the "circumstances highlight[ed] a need to protect society". He noted that although the applicant "might be regarded as youthful in relative terms", he was "substantially beyond the age of 18 at the time of his offending".
So far as the prospect of rehabilitation (s 16A(2)(n)) were concerned, the sentencing judge noted that the applicant expressed his "deep regret" to Dr Nielssen and "his intention to work towards his rehabilitation with a view to 'communicating peacefully' with the authorities". He noted, however, the caution expressed in R v Qutami [2001] NSWCCA 353 at [58], against accepting statements made by an offender to third parties, including psychiatrists and psychologists, when no sworn evidence is given by the offender. He said that this caution assumes "considerable significance in the present case" where the rehabilitation of an offender is "necessarily dependent, at least in part, upon the offender renouncing previously held extremist views". He noted that "[t]he onus of establishing the abandonment of a previously held extremist ideology is on the offender, and is to be established on the balance of probabilities". He stated that whilst the offender was under no obligation to give sworn evidence, it may be open to the Court to conclude that the failure to do so means that the onus has not been discharged. He said that in the present case, the absence of sworn evidence by the applicant meant that the weight to be attached to statements made by the applicant to Dr Nielssen and to his sister to whom he had "expressed disagreement with the underlying philosophies of ISIS" is "necessarily limited". The sentencing judge accepted that the applicant's plea of guilty "may be some evidence of contrition" and "may also be taken as some indication of stepping away from his previously held views". He said that "[t]o that limited extent, such factors may point favourably towards rehabilitation" but said that he could "put it no higher than that" and that he expressed "those views with caution". He also stated that "[i]t must be remembered that issues of rehabilitation assume less significance in sentencing for offending of this kind".
The sentencing judge stated that there could be no doubt that the applicant's custodial conditions were "harsh" and that he would proceed on the basis that they would likely prevail for the duration of any sentence. He said that he had made "some allowance" for the applicant's conditions of custody, although, in the circumstances, it was not substantial.
In those circumstances, the sentencing judge imposed the sentence to which I have referred at [3] above.

Ground 1 - His Honour erred by failing to take into account the utilitarian value of the applicant's plea of guilty

The applicant pointed out that the sentencing judge followed Tyler v The Queen; R v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458 ('Tyler') which stated that regard could not be had to the utilitarian value of the plea. Tyler was held to be incorrect in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4; see also Jinde Huang aka Wei Liu v R [2018] NSWCCA 70 at [9]. The Crown accepted that the sentencing judge erred in this respect and it was thus necessary to resentence the applicant. It also follows that it is unnecessary to deal with Ground 2.

a The applicant's submissions

Senior counsel for the applicant accepted that the offence was "objectively very grave". However, he also submitted that it was "important to take into account that there was no actual injury to any person or property". He submitted that the offence took place over "a reasonably short period of time" and that "no actual target had been fixed upon". He submitted that was "a significant factor". He submitted that the sentencing judge did not find that the applicant was the leader of the group, though he accepted that he held "a significant position in the hierarchy of the group".
Senior counsel for the applicant also submitted that the plea of guilty, albeit a late plea, led to "a considerable saving of time and expense" and "a considerable saving of scarce judicial resources". He submitted that the discount awarded by the sentencing judge was given on the basis that it showed "some evidence of contrition" and "acceptance of responsibility".
It was submitted that the applicant's youth was "a significant matter", noting that the applicant was 20 years old at the time of sentencing. He submitted that the fact that there were no adverse entries on the applicant's prison record since June 2017, was significant evidence of rehabilitation. In dealing with the fact that the applicant had not enrolled in the PRISM Program, he referred to the evidence of Mr Piazza that the program was (technically) available only during the last 12 to 18 months of a prison sentence. He also referred to the evidence of the applicant's solicitor to the effect that the applicant had attempted to enrol in courses but they were not available to him.
Reference was also made to the conditions of custody which I have summarised at [28]-[34] above. He submitted that in all the circumstances, the sentencing judge did not pay sufficient regard to the applicant's youth, his prison record or his conditions of custody.
In the written submissions filed on behalf of the applicant, it was emphasised that the proximity of the planned attack was a relevant consideration in terrorism sentencing. The submissions referred to R v Lodhi [2006] NSWSC 691 at [69] and R v Elomar and Ors [2010] NSWSC 10 at [68] where Whealey J considered that the proximity of the actual terrorist act was a relevant consideration in determining the seriousness of the offence. The submission contrasted these cases with R v Fattal and Ors [2011] VSC 681 where King J concluded at [96] that because the offender's plan was not "attenuated with all of the steps that have been taken by those involved in Elomar", sentences of a level approximating R v Elomar and Ors [2010] NSWSC 10 were not warranted. The submissions also referred to R v Benbrika and Ors [2009] VSC 21 when Bongiorno J stated at [48] that "membership of a terrorist organisation must be regarded a serious crime although not as serious as it might have been" if a finding was made that "preparation for a terrorist act had advanced further than it actually had; namely, as far as the selection of a target or possible target".
In dealing with the manifest excess ground, the written submissions referred to a number of cases which were said to offer a useful point of comparison.
The first of these cases was R v Khaja (No 5) [2018] NSWSC 238. The offender who was aged 18 years and 6 months at the time of the offending, pleaded guilty to the charge of planning a terrorist act. It was alleged the offender between 11 and 18 May 2016 conducted a reconnaissance of potential targets, attempted to obtain a weapon or weapons and a flag of the 'khilafa' and sought guidance and assistance from 'Abu Baraa'.
The offender went to the Timor Army Barracks in Western Sydney and to the court buildings in Parramatta for the purpose of assessing those facilities as targets for an attack. He made contact with people who were in fact undercover officers and sought to procure weapons and advice from them. The evidence recorded his conversations with Abu Baraa (also an undercover officer) to whom he spoke "as a committed fanatic, beyond reason, empathy or humanity". The sentencing judge found that the plan was advanced in the sense that by the date of the offender's arrest, he was "fully committed to his project", "had carried out repeated surveillance on possible targets" and "was at the end stage of selecting the location for his attack, procuring weapons and seeking detailed advice".. The sentencing judge stated that he was satisfied beyond reasonable doubt that the offender would have gone ahead with the plan involving deliberate suicide.
The sentencing judge stated that the offender came from a good background and noted evidence from his teachers and his siblings that he was not considered violent. He referred to the history given to a psychiatrist, Dr Furst, which suggested that in addition to anxiety the offender suffered mild depression and feelings of social isolation in his later school years. He stated notwithstanding his moral culpability was "very high". He described the offender's subjective circumstances as "unremarkable".
After allowance of a discount of 12 months for the utilitarian value of the plea (effectively 5%), the sentencing judge imposed a sentence of 19 years imprisonment with a non-parole period of 14 years and 3 months.
The second case was Faheem Khalid Lodhi v Regina [2007] NSWCCA 360; (2007) 179 A Crim R 470 ('Lodhi'). The offender was convicted of collecting documents in preparation for a terrorist act, doing an act in preparation for a terrorist act, namely seeking information about chemicals capable of being used to make an explosive device and possessing a document setting out directions for making explosives, incendiary devices, detonators and poisons. He was in possession of a significant amount of radical material. The sentencing judge had made it clear he was satisfied beyond reasonable doubt that the offender was involved in a plan to execute a bombing in Australia as part of a terrorist attack. The offender was 36 years of age at the time of sentencing, a married man and a qualified architect. He was convicted by a jury and sentenced to an aggregate term of imprisonment of 20 years with a non-parole period of 15 years. The sentence was upheld on appeal.
The third case, R v Fattal and Ors [2011] VSC 681, involved three offenders who were convicted by a jury of conspiring to do acts in preparation for, or planning a terrorist act. The plan was to enter Holsworthy Army Barracks with guns and "shoot as many persons on the base as could be shot".
Fattal was 35 years of age at the time of sentencing and held radical views which he maintained throughout the trial. One of his co-offenders, Aweys, was 29 years of age at the time of sentencing. He had a criminal history but had not offended since 2005. The third offender, Elsayed, was 27 at the time of sentencing.
Each of the offenders was sentenced to a term of imprisonment of 18 years with a non-parole period of 13 years and 6 months.
The applicant also referred to the fact that a co-offender, Mr Almaouie, was sentenced to a term of 18 years and 10 months with a non-parole period of 14 years and 2 months. It was submitted that Almaouie had sourced the weapons to be used and it was "arguable that his offending had a higher degree of criminality" compared to that of the applicant. By contrast, the sentencing judge found it was "slightly lower": see [161] of the sentencing judgment.

b The Crown

The Crown at the hearing noted that senior counsel for the applicant had conceded the objective gravity of the offence. The Crown submitted that whilst there was not a formulated plan at the time of the arrest, the acquisition of the capability to carry out an attack, namely the weapons and bomb making material, made a difference to the seriousness of the offence.
The Crown submitted that the fact that the conspiracy continued for a relatively short period of time did not mean that there was not a serious desire to do harm.
The Crown submitted in considering the seriousness of the offence, what had to be looked at was the role the offender actually played rather than "leadership". However, he submitted that the applicant was in the role of leadership in terms of being a spiritual counsellor, advising IM whether to stay or go overseas.
The Crown also referred to the decision of the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v MHK (No 1) (2017) 52 VR 272; [2017] VSCA 157 ('MHK') in which the Court stated at [77] that whilst the sentences imposed in Benbrika v R (2010) 29 VR 593 may have been regarded as within range at that time, "having regard to the scourge of modern terrorism, and the development of more recent sentencing principles in this area", they were "unduly lenient".
The Crown also referred to the decision of this Court on the appeal of the co-conspirator IM where the appeal was allowed on the same basis as the present case: IM v R [2019] NSWCCA 107 ('IM'). IM, who was just over 14 years old at the time of the commencement of the conspiracy, had his sentence reduced from a term of imprisonment of 13 years and 6 months to 10 years and 9 months with a non-parole period of 8 years. IM was granted a 10% discount for the utilitarian value of his plea: IM at [62]. The Court took some account of IM's age and immaturity, particularly when compared to his co-conspirators: see [64].
In written submissions, the Crown pointed to the role that the applicant in fact played in the conspiracy. It was also submitted that the sentencing judge had correctly dealt with the question of whether the applicant had moved away from the violent ideology that he previously espoused, noting that the applicant had given no evidence on this question and that rehabilitation has less significance in cases of this nature.

Consideration

As the sentencing judge correctly pointed out, the applicant is to be sentenced in accordance with Pt 1B of the Crimes Act. The approach in applying the relevant provisions in the area of terrorist offences has been considered recently by intermediate Courts of Appeal on a number of occasions: Lodhi; Elomar v R [2014] NSWCCA 303 at [703] ('Elomar'); MHK; Alou v R [2019] NSWCCA 231 at [131]-[136] ('Alou'); IM'. From these cases, the following principles have emerged. (i) "In 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": Lodhi at [89] citing Lord Bingham CJ in R v Martin (1999) 1 Cr App Rep (S) 477 at 480; see also Lodhi at [109]; Elomar at [703]; Alou at [132]-[134]. (ii) Having regard to the nature of the offences and the purpose of the statutory provisions, namely to intercept and interrupt planned acts of terror, mitigating factors such as the prospect of rehabilitation and other subjective factors are given substantially less weight than in other forms of offences: Lodhi at [274]; MHK at [54]-[55]. (iii) The offence of doing acts in preparation for a terrorist act or acts is an anticipatory offence which enables intervention by law enforcement agencies at a much earlier time than the commission of a planned offence. In those circumstances, the proximity of the planned offence, although relevant, does not necessarily determine the objective seriousness of the offence. It does not follow from the fact that the preparatory acts were even in their infancy that the offence must be objectively less serious. The main focus must be on the offender's conduct and intention at the time the offence was committed: Lodhi at [229]-[230]. As Meagher JA put it in IM at [48], "[i]t is not to the point that the precise act or acts of terrorism and their timing had not been resolved". (iv) Having regard to the nature of the offence, considerations relating to the youth of the offender need to be appropriately moderated when the offender was "involved in serious and dangerous offending": MHK at [56]-[57], [73]; IM at [54]; Alou at [134]-[136].
It is in that context that the considerations required to be taken into account on sentencing set out in Pt 1B of the Crimes Act, particularly at s 16A, need to be taken into account. Section 16A(1) requires the imposition of a sentence that is "of a severity appropriate in all the circumstances of the offence". As Spigelman CJ pointed out in Lodhi at [81] citing Johnson v The Queen [2004] HCA 15 at [15], "the sentencing principles developed at common law, rather than the various provisions in State legislation, should apply to sentencing for Commonwealth offences".
Section 16A(2)(a) requires the nature and circumstances of the offence to be taken into account. As senior counsel for the applicant properly conceded the offence was a very serious one. It involved preparation for acts of terrorism the nature of which was unresolved but certainly contemplated killing police officers or other government officials in support of the extremist ideology to which the applicant and his co-conspirators adhered.
Senior counsel for the applicant referred to a number of first instance decisions where the proximity of the planned attack was said to be a relevant consideration. That may be accepted but it must be remembered that as Price J pointed out in Lodhi, that the offence is an anticipatory offence and lack of proximity between the preparatory act and the planned attack may not substantially lessen culpability: see also IM at [48]. In the present case, it must also be remembered that the conspiracy had advanced to the stage of obtaining firearms and ammunition and included consideration of the manner in which to carry out terrorist attacks: see [15] above.
Further, the fact that the conspiracy took place over a short period of time does not seem to me of particular significance in the present case. Weapons had been acquired, a possible target had been considered and meetings had occurred between the co-conspirators in preparation for the terrorist act. The planning and preparation was not at a preliminary stage.
Senior counsel for the applicant submitted that the sentencing judge did not find that the applicant was the leader of the group. The sentencing judge stated there was "limited utility" in establishing an operational hierarchy. His findings on this issue, which I have set out at [51]-[52] above, were not disputed and demonstrated that the applicant played a senior role in the conspiracy.
It is also important to bear in mind the applicant's adherence to an extremist ideology and the fact that the sentencing judge was not satisfied on the balance of probabilities that the applicant had renounced that ideology at the time of the sentencing hearing. As the sentencing judge pointed out (see [26] above), in those circumstances, community protection assumes even greater importance. There was no additional evidence which has caused me to reach a contrary conclusion. The evidence of the applicant's solicitor to which I have referred at [95] below does not do so.
So far as contrition and remorse are concerned (Crimes Act s16A(2)(f)), like the sentencing judge, I would be prepared to accept that the applicant by his plea showed some, albeit limited, evidence of contrition and acceptance of responsibility. However, like the sentencing judge, in the absence of evidence from the respondent, I would place little weight on the applicant's expression of remorse to Dr Nielssen.
So far as s 16A(2)(g) is concerned, allowance must be made for the utilitarian value of the plea of guilty. In the present case, the sentencing judge did not give a discount on that basis, rather gave a discount of 10% because the plea provided "some evidence of contrition" and "acceptance of responsibility". There may be a question in many cases where an error of the nature of that raised in ground 1 is identified, whether any potential utilitarian discount has been subsumed by any discount for facilitating the course of justice or, in the present case, as a demonstration of contrition and remorse: Singh v R [2018] NSWCCA 60. Nevertheless, it is appropriate in my opinion, to adopt the approach to the question set out by Johnson J in Bae v R [2020] NSWCCA 35 at [55]-[57]. His Honour, with whom Bell P and Walton J agreed, made the following remarks: "[55] It will be apparent from the authorities referred to so far, including R v Borkowski, that identification of the utilitarian value of a plea of guilty involves an objective assessment to be undertaken for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth). If an offender has demonstrated contrition involving facilitation of the course of justice, this factor may be taken into account in the offender's favour on sentence in accordance with s.16A(2)(f) Crimes Act 1914 (Cth). This aspect falls on the subjective side of factors and involves an enquiry as to the attitude of the offender and an assessment of contrition. Reference to objective and subjective factors in this way was adopted in Diaz v R [2019] NSWCCA 216 at [77]-[83] as a useful way of distinguishing between these considerations. [56] As the cases have made clear, however, there is no bright line test for distinguishing between these objective and subjective considerations so that these factors may overlap. In Singh v R [2018] NSWCCA 60, Payne JA (with the concurrence of Campbell J and myself) said at [28]: 'Whilst it is correct that contrition and remorse are factors required to be taken into account separately under s 16A(2)(f) in addition to the plea of guilty under s 16A(2)(g), those factors often overlap. Nothing in Xiao provided to the contrary.' [57] The utilitarian value of a plea of guilty is an objective factor to be considered and preferably quantified (Xiao v R at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49], [55]), with the subjective side involving demonstration of contrition to be an unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis, but with the sentencing court guarding against double counting of these aspects in a manner favourable to the offender."
In the present case, having regard to the timing of the plea, I would grant a utilitarian discount of 10% from the sentence I would otherwise impose.
So far as deterrence is concerned, there is plainly a need for both personal and general deterrence (see the cases to which I have referred at [80] above). Cases of this nature strike at the very heart of the fabric of society and threaten democratic government and the security of the State (see R v Kahar [2016] EWCA Crim 568 at [15]) and it is critical that those who would seek to undertake such acts be deterred from doing so and those who may contemplate doing so be made aware that the offences warrant severe punishment.
So far as the character, antecedents, age, means and physical or mental condition of the applicant is concerned (s 16A(2)(m)), the applicant at the time of the offence was 20 years of age and thus still a very young man. Having regard to the role he played and the seriousness of the offence, his age is of limited significance. However, I have taken it into account.
The applicant's subjective background is unremarkable. He appeared to be otherwise of good character and was evidently respected by those who were not aware of his extremist views. However, as has been pointed out in the cases to which I have referred, the fact that the person who committed the offence is otherwise of good character, whilst relevant, does not loom large in the sentencing exercise.
As to the prospect of rehabilitation (s 16A(2)(n)) the sentencing judge correctly pointed out that it was dependent upon the applicant renouncing his extremist views and that the onus was on the applicant to demonstrate that he had done so. His Honour's view that the applicant's plea may be taken as some indication of stepping away from his previous views may be fortified to some extent by the evidence of his solicitor, Mr Alexander, that he had "been of good behaviour" in custody for a period of over 2 years. Nevertheless, in the absence of evidence from the applicant on the question of whether he has renounced his views, the question of rehabilitation remains uncertain.
In considering the appropriate sentence, I have also taken into account the extremely onerous conditions of custody imposed on the applicant and the fact that these conditions are likely to continue for the foreseeable future.
So far as the comparative cases referred to by the applicant are concerned, it is important to bear in mind the limited use that can be made of such cases as establishing a range of sentences, not necessarily the correct range, which can be used as a yardstick against which a proposed sentence can be measured. Instead, what is to be sought from these cases is consistency of principle in sentencing rather than mathematical equivalence: Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [53]-[55]; R v Pham (2015) 256 CLR 550; [2015] HCA 39 ('Pham') at [26]-[28].
The cases referred to are of little assistance in providing a yardstick for sentencing in the present case. They are of limited number covering a period of 12 years in circumstances, where as was pointed out in MHK at [77], sentencing practice in this area has changed since 2009. As Bell and Gageler JJ pointed out in Pham at [49] "[i]t is not meaningful to speak of a pattern of past sentences in the case of offences which are not frequently prosecuted and where a relatively small number of sentences make up the set". Nevertheless, I would pay some regard to these cases.
In the circumstances, after an allowance of 10% for the utilitarian value of the plea, I would impose a sentence of 20 years. In accordance with s 19AG of the Crimes Act, I fix a non-parole period of 15 years. The sentence is to be backdated to 23 December 2014, the date the applicant went into custody.

Conclusion

In the result, I would make the following orders: 1. Grant the applicant leave to appeal. 2. Allow the appeal. 3. Set aside the sentence imposed on the applicant and in lieu thereof sentence the applicant to a term of imprisonment of 20 years commencing on 23 December 2014 and expiring on 22 December 2034 with a non-parole period of 15 years expiring on 22 December 2029.
BELL P: I agree with the reasons of the Chief Justice and the orders he proposes.
HARRISON J: I agree with Bathurst CJ. I wish only to add the following thoughts.
This case is but one example among several similar cases in this Court in which the custodial conditions of offenders charged with or convicted of terrorism offences are raised for consideration in the assessment of the reasonableness or otherwise of a sentence that has been imposed. It is well understood that offenders receive sentences of imprisonment as punishment: they are not imprisoned for punishment.
Imprisonment is the most severe sanction for any crime that can be imposed by our system of justice. Terrorism offences are potentially among the most serious crimes with which the courts have to deal. The maximum penalties prescribed for such offences, including life imprisonment, reflect this fact .
Any term of imprisonment, including what some may consider to be a lenient sentence, is a severe punishment. It cannot be doubted that sentences must reflect the need for general and specific deterrence, denunciation, retribution and the requirement in an appropriate case for the protection of the community. Sentences must also recognise and encourage the existence of a particular offender's prospects of rehabilitation.
If rehabilitation is to retain its importance as a significant element of the sentencing equation, it is equally important that custodial conditions that are (arguably) excessively punitive or gratuitous should not frustrate the prospect that an offender might emerge from custody less dangerous and less committed to some fanatical ideology than when he or she first entered the prison system. It is for example difficult to imagine how unnecessary shackling, excessive deprivation of exercise or restricted access to educational programs, limitations upon or withdrawal of contact visits, or any restrictions that set terrorism offenders apart from those in the general prison population, are ever likely to encourage renunciation of violent fundamentalism. There is in my opinion a very real risk, except where it is necessary for the safety of corrections staff or the protection of the wider community, that the differential treatment of terrorism offenders, or even the undiscriminating assessment of the risks posed by individual offenders, may only serve to affirm and entrench dangerous and unacceptable views.

Amendments 17 April 2020 - Amended file number DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2020

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