Mostafa Shiddiquzzaman v R; Mohammad Junaid Thorne v R

Facts

1. The parties presented an Agreed Statement of Facts, which can be summarised as follows.
2. On the morning of 6 December 2014, Mr Shiddiquzzaman used a computer connected to the Internet to book three seats for air travel from Perth to Sydney in the names of Moses BANGURA, Prince BHOPAL and Mathew JACOBS on a Virgin Australia flight departing Perth on 8 December 2014. Mr Shiddiquzzaman used a MasterCard in his name to pay for the booking and recorded a Virgin Velocity frequent flyer number belonging to Mr Thorne.
3. On 7 December 2014, Mr Thorne used his mobile telephone to contact Flight Centre Travel Group Ltd (Flight Centre) to confirm the bookings, but was informed that the direct flight from Perth to Sydney had been cancelled. At that time the three tickets in the false names were reissued for two Virgin Australia flights, being a flight from Perth to Brisbane with a connecting flight from Brisbane to Sydney, both departing on 8 December 2014.
4. On 7 December 2014, boarding passes were printed for the two Virgin Australia flights in the names of Moses BANGURA, Prince BHOPAL and Mathew JACOBS.
5. At about 7.17am (AWST) on 8 December 2014, Mr Shiddiquzzaman presented the boarding pass in the name of Prince BHOPAL, Mr Thorne presented the boarding pass in the name of Mathew JACOBS and the co-offender Omer Abdirahman Issak presented the boarding pass on the name of Moses BANGURA to Virgin Australia staff at Perth Airport. They then boarded the flight and travelled from Perth to Brisbane on flight VA 463.
6. At about 2.30pm (AEST) on 8 December 2014, Mr Shiddiquzzaman presented the boarding pass in the name of Prince BHOPAL, Mr Thorne presented the boarding pass in the name of Mathew JACOBS and the co-offender Omer Abdirahman Issak presented the boarding pass on the name of Moses BANGURA to Virgin Australia staff at Brisbane Airport. They then boarded the flight and travelled from Brisbane to Sydney on flight VA 958.
7. On 8 December 2014, Virgin Australia security staff notified the Australian Federal Police Joint Counter Terrorism Team (AFP JCTT) of the travel by the three men. The AFP then began an investigation by reviewing CCTV footage from Brisbane Airport and by checking the passenger booking information.
8. On 12 December 2014, Mr Shiddiquzzaman was arrested when he arrived at Perth Airport on a flight from Sydney. A search of his baggage located a Virgin Australia boarding pass issued in the name of Mathew JACOBS and the MasterCard that was used to pay for the Internet booking.
9. On 13 December 2014 the AFP executed a search warrant at Mr Shiddiquzzaman's home in Perth and located a number of computers. At that time, Mr Shiddiquzzaman made admissions that he paid for the flights and said that Mr Thorne printed the boarding passes from a computer. Mr Shiddiquzzaman was unable to travel to Bangladesh on 14 December 2014 with his family as a result of the charges before the Court.
10. On 13 January 2015, Mr Shiddiquzzaman participated in a record of interview, during which he said that: 1. he booked the flights for himself, Mr Thorne and the co-offender; 2. he used his MasterCard; 3. he boarded the flights with the others using fictitious names; 4. he did it "just for fun…to see if it works and it did. We checked in online and it worked. We heard from someone else that it does work and so we just tried it out for fun"; and 5. he believed that boarding commercial flights using fictitious names was commonly done.
11. On 15 January 2015, the AFP executed a search warrant at Mr Thorne's home in Sydney and located a Virgin Velocity frequent Flyer card in the name of Mr Thorne, bearing the frequent flyer number entered in the Internet booking made by Mr Shiddiquzzaman on 6 December 2014. At that time, Mr Thorne made the following admissions: 1. that he travelled on the Virgin Australia flights from Perth to Brisbane and Brisbane to Sydney on 8 December 2014; 2. that the flights were booked under false names as Mr Shiddiquzzaman did not want people to know he was travelling with Mr Thorne because of Mr Thorne's high profile in the media; and 3. that the mobile telephone used to contact Flight Centre on 7 December 2014 was subscribed to him.
12. At the time of the alleged offences, Perth Domestic Airport and Brisbane Airport were constitutional airports and Virgin Australia flights VA 463 and VA 958 were constitutional flights starting and ending in Australia.

Criminal antecedents

1. Mr Shiddiquzzaman has no prior convictions.
2. Mr Thorne has one prior traffic conviction. On 9 July 2014, he was convicted of Unlicensed Driving in the Fremantle Magistrates Court, fined the sum of $200 and disqualified from holding or obtaining a driver's licence for a period of three months. I consider that prior conviction to be irrelevant to my consideration of this matter.

Pre-Sentence Reports

1. Pre-Sentence reports in the form of a Sentencing Options Assessments were prepared by a Community Corrections Officer in relation to both offenders.

Mr Shiddiquzzaman's subjective case

1. Mr Shiddiquzzaman tendered on the appeal: 1. a number of character references; 2. a report of Wajma Ebrahimi, his treating Clinical Psychologist dated 3 August 2015; and 3. a report of Thea Gumbert-Jourjon, Psychologist dated 31 July 2015 that was prepared at the request of his solicitor for the purposes of the appeal; 4. an undated letter from Associate Professor Anne Aly of Curtin University.
2. Mr Shiddiquzzaman's subjective material can be summarised as follows.
3. Mr Shiddiquzzaman was born in Tokyo to Bangladeshi parents. He is the eldest of four children. He lived in Bangladesh until emigrating to Australia with his family in about 1999, when he was four years old The family settled in Perth. His parents were devout Muslims and the family returned to Bangladesh between 2004 and 2009 in order to provide the children with an appropriate religious and cultural education. The family returned to Australia in 2009 when he was 13 years old. In 2012 his father returned to work in Bangladesh where he continues to be a Professor of Environmental Science at Kuhnla University. In 2013 Mr Shiddiquzzaman became an Australian citizen.
4. He is presently 19 years of age. He completed his secondary education in Perth in 2012. In 2013 the enrolled in a Bachelor of Biomedical Science and a Bachelor of a Molecular Biology at Murdoch University. In 2014 he transferred to Curtin University. He has deferred his university course for the 2015 year. His intention is to continue his education at Curtin University and to graduate.
5. He played soccer at high school. Since leaving high school he has practised his faith, and supported other young men from his community in the transition to tertiary education. During high school and his first year of university he has held a number of casual jobs.
6. On 6 June 2015 he sought treatment from his general practitioner for symptoms of depression related to the unknown outcome of these proceedings. He was given a Mental Health Care Plan and referred to Wajma Ebrahimi a Clinical Psychologist for counselling. He attended for counselling on two occasions being, 6 June 2015 and 1 August 2015.
7. On 14 July 2015 when he was assessed by Ms Gumbert-Jourjon, he completed a number of psychological tests and presented from the results of those tests as severely depressed, anxious and stressed. The precursor for all of Mr Shiddiquzzaman's feelings of distress was the uncertain outcome of these proceedings and the affect that the outcome would have on his future.
8. Mr Shiddiquzzaman contends that his compliance with the bail conditions imposed on him pending the hearing of this appeal, is demonstrative of his suitability to be rehabilitated within the community.
9. Mr Shiddiquzzaman wishes to return to Western Australia at the conclusion of these proceedings to continue his tertiary education and to be near his family.

Mr Thorne's subjective case

1. Mr Thorne tendered on the appeal: 1. a number of character references; 2. an application to the University Admissions Centre dated 5 February 2015; 3. a letter from the University Admissions Centre dated 28 July 2015 informing Mr Thorne that he was unsuccessful in the applications he had made to it for enrolment in tertiary education courses; 4. a letter from Wajma Ebrahimi, Clinical Psychologist to his General Practitioner Dr Silva dated 10 February 2015; 5. a report of Wajma Ebrahimi, his treating Clinical Psychologist dated 3 August 2015 6. a report of Dr Liu, Sonographer dated 27 July 2015; 7. a report of Thea Gumbert-Jourjon, Psychologist dated 31 July 2015 that was prepared at the request of his solicitor for the purposes of the appeal; 8. a Medical Certificate from Dr Theresa Wong dated 4 August 2015 certifying him fit to undertake community service work; and 9. an undated letter from Associate Professor Anne Aly of Curtin University.
2. Mr Thorne's subjective case can be summarised as follows.
3. He was born in Perth. His father was Aboriginal and his mother was an Australian citizen of Singaporean descent. He had one older brother from his parent's relationship. His parents separated when he was an infant and he was raised by his mother and his step-father. They had 6 children from their relationship.
4. Mr Thorne was the victim of domestic violence at the hands of his step-father. Mr Thorne was raised in the Islamic faith and was largely home schooled by his mother. In about 1999 when Mr Thorne was 10 years old the family moved to Riyadh in Saudi Arabia. He did well in secondary school but his step-father's physical abuse escalated and he and his elder brother were forced to leave home at age 17. Mr Thorne completed his final high school examinations whilst working part-time to support himself and his brother. He achieved excellent results in his final examinations and was offered a scholarship to undertake a Bachelor of Finance at Prince Sultan University in Riyadh.
5. During his second year of university, his elder brother was arrested at their home and subsequently incarcerated. Mr Thorne did not know the basis on which his brother had been arrested and did not know where he was being held. Mr Thorne's brother remained in custody for nearly 4 years. Mr Thorne conducted research into the rights of prisoners and became more politically active in the year or two following his brother's arrest.
6. His mother separated from his stepfather and returned to Australia. At about this time Mr Thorne obtained employment and commenced a relationship with a woman who he had planned to marry.
7. In early 2013, towards the end of his final year of university, Mr Thorne participated in a protest and was arrested. He was detained and held for approximately 4 months and subjected to extremely poor conditions including inadequate food and sanitation. It was very frightened for his safety at this time. As a result of his detention Mr Thorne missed his university exams and was unable to complete his degree. He lost his employment and his fiancee's family ended the engagement.
8. In mid-2013 Mr Thorne was released from custody and deported to Australia. He began to reside with his mother and half siblings in Perth. At this time he started to attract quite a bit of media attention as his brother was a political prisoner. He became involved in activism in Australia and was regularly invited to give talks on religion and politics.
9. Mr Thorne attempted to complete his degree at Curtin University in early 2014 but found it difficult to re-engage with his studies. At around this time he reported that he was subject to increasing attention from ASIO and he became aware that many of his friends were being interviewed in relation to his activities. In about mid-2014 he participated in a 4-5 hour interview with ASIO officers, with a view to having them deal with him directly, rather than with his family and friends.
10. At about this time he began to receive death threats and hate mail both online and physically sent to his family home. Mr Thorne discontinued his university studies out of fear for his safety and reported the threats to police. He decided to move to Sydney where he had friends and could participate in a larger Islamic community.
11. He is currently 26 years of age. He is married and resides with his wife, her 3 children and Mr Shiddiquzzaman. He works as a labourer and casually as an Arabic language teacher. Mr Thorne and his wife are expecting their first child in about March 2016.
12. In about 2011 Mr Thorne slipped a spinal disc during martial arts training. He also injured his knee playing soccer in 2012. His ability to complete physical work is limited to some extent.
13. In January 2015, Mr Thorne was diagnosed with Post-Traumatic Stress Disorder by his general practitioner Dr Silva and referred to Wajma Ebrahimi, Clinical Psychologist for counselling. He has subsequently attended a total of 10 counselling sessions. The concerns expressed to the clinical psychologist by Mr Thorne relate to outcome of these proceedings.
14. On 8 May 2015 Dr Olav Neilsen, Psychiatrist, opined in a report that Mr Thorne did not meet the criteria for diagnosis with any psychiatric disorder. However Dr Nielsen believed that Mr Thorne was experiencing some difficulties with mood and functioning as a result of the current charges, including anxiety and poor sleep.
15. The psychological testing of Mr Thorne by Thea Gumbert-Jourjon on 16 July 2015 did not report any abnormal findings of significance.
16. Mr Thorne contends that his compliance with the bail conditions imposed on him pending the hearing of this appeal, is demonstrative of his suitability to be rehabilitated within the community.
17. Mr Thorne intends in the future to re-enrol into tertiary education.

Consideration

1. As these are Commonwealth offences, the procedural requirements and penalty options for sentencing are set out in Part IB Crimes Act 1914 (Cth) (the Act).
2. Section 16A(1) of the Act requires that the Court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. The court must take into account such of the matters as are set out in section 16A(2) of the Act as are relevant and known to the Court. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply to the sentencing of federal offenders, Johnson v The Queen (2004) 78 ALJR 616 at [15].
3. The phrase "known to the court" does not require the formal proof of matters before they can be taken into account in sentencing, Weininger v The Queen (2003) 212 CLR 629.

Objective circumstances of the offences

1. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v R (No 2) (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton (2006) 66 NSWLR 566 at [15].
2. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
3. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No 5) [2009] NSWSC 432 at [61].
4. Both of the offences being considered by the Court involve dishonesty.
5. The offenders committed the offences with the intention of avoiding coming under notice of the authorities when travelling within Australia. Mr Shiddiquzzaman reported that intention to the Community Corrections Officer who prepared the Pre-Sentence Report and Ms Gumbert-Jourjon. Mr Thorne reported that intention to the Community Corrections Officer who prepared the Pre-Sentence Report, to his treating Clinical Psychologist and Ms Gumbert-Jourjon.
6. The offenders sought to avoid coming to the notice of the authorities when they knew that their activities were of interest to the authorities. At the time of the offences, according to what they both told Ms Gumbert-Jourjon they had already both been interviewed by ASIO officers in connection with Mr Thorne's activities. There is no evidence before me as to what those activities were and it is not appropriate for me to speculate as to what they might have been or why they were of interest to ASIO.
7. The intention of the offenders had the effect of subverting one of the purposes of the prohibition contemplated by the offence, which was the promotion of security of air travel.
8. On the material before me I am satisfied beyond reasonable doubt that it was Mr Thorne's idea to commit the offences and he stood to gain the most from travelling incognito. The offences involved some degree of planning; albeit that planning was unsophisticated.
9. I do not accept that Mr Shiddiquzzaman committed the offences "just for fun".
10. I do not accept that Mr Thorne was motivated to commit the offences to avoid media attention. Whilst I accept that Mr Thorne had been the subject of media attention, presumably as a result of his activities, and he wanted to leave Perth, I do not understand how he could have reasonably believed that if he travelled from Perth to Sydney using his own identity that the media would have been alerted to his movements.
11. The fact that the offenders took two flights and have thereby been charged with two counts of the section 376.3(2) offence arose from Virgin Australia's decision to cancel the direct flight from Perth to Sydney on 8 December 2014. This was a matter of which the offenders had no control.

Deterrence

1. General deterrence is not a matter specifically referred to in section 16A(2) of the Act, but it is so obviously relevant to sentencing that it must be considered, Putland v The Queen (2004) 218 CLR 174 at [12].
2. It is a very significant factor in sentencing these two offenders. One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and other persons intending to commit similar crimes that they will meet with severe punishment.
3. Since about 2002 the security arrangements at airports and relating to air travel have been significantly strengthened. A common feature of that security has been the provision of photograph identification as a pre-condition of air travel. In recent times these requirements have been relaxed for domestic air travel, presumably in an effort to reduce the costs associated with it. The community are expected to be able to put trust in those persons who use carriage services to book air travel and to print boarding passes to use their true identity. In breaching that trust, the offenders caused significant concern or the risk of such concern in the community for the safety of air travel.
4. Specific deterrence is expressly provided for in section 16A(2)(j) of the Act. There is a need for specific deterrence in dealing with Mr Shiddiquzzaman. The need for specific deterrence is more significant in dealing with Mr Thorne as he has not fully accepted responsibility for his actions.
5. Mr Shiddiquzzaman expressed to Ms Gumbert-Jourjon that he accepts responsibility for his involvement in the offences and I accept that he has shown some contrition. Mr Thorne stated to Ms Ms Gumbert-Jourjon that "I've done something wrong, but I feel I was forced into it. He expressed remorse to one of his referees, but in the context that he felt pressured into the offending behaviour. I accept that he has shown some small amount of contrition.
6. The offenders entered an early plea of guilty. For Commonwealth offences, the Court must consider the offender's willingness to facilitate course of justice and not the utilitarian value of the plea; Cameron v The Queen (2002) 209 CLR 339 at [14]. In assessing the willingness of an offender to facilitate course of justice the strength of the Crown case against the offender is a relevant consideration. That enquiry may reveal whether the plea was a recognition of the inevitable or truly motivated by willingness to facilitate course of justice, Lee v The Queen [2012] NSWCCA 123 at [58]. In this matter the Crown case was a strong one, but I also take into account that the guilty plea has saved witnesses from giving evidence at trial and that is a part of facilitating the course of justice. According both offenders are entitled to a discount on the sentence imposed by reference to their pleas of guilty.
7. The offenders were both previously persons of good character.
8. Mr Shiddiquzzaman is quite young at age 19 and but for these offences he would have continued his university studies in Perth this year. His first contact with Mr Thorne was in July 2014 when he attended a series of talks presented by Mr Thorne. On 8 December 2014 he travelled with Mr Thorne to Sydney for a holiday, intending to return to Perth, whereas Mr Thorne intended to relocate to Sydney for a longer period. I am satisfied that Mr Shiddiquzzaman's involvement in these criminal offences was as a follower and not a leader. He has no physical restrictions and the concerns for his mental health are directly related to the stress and anxiety caused by the uncertainty of the outcome of these proceedings. He has excellent prospects for rehabilitation, particularly if he can return to Perth where he has the support of his family.
9. Mr Thorne is 26 years of age, recently married and expecting his first child in March 2016. He is presently working as a labourer as his tertiary education has been interrupted by a complicated series of events occurring in his life. He has recently had attempted to enrolling in other tertiary courses but that has not been successful. He is undecided as to whether he will remain in Sydney returned to Perth. He has some physical restrictions that will probably make work as a labourer difficult for the long term. He does not have any significant mental condition other than experiencing some difficulties with mood and functioning as a result of the current charges. He has some prospects for rehabilitation.
10. Both offenders rely on an offer of support from Associate Professor Anne Aly of Curtin University. Associate Professor Aly is the founding chair of a non- government organisation that works with young people to address issues of violent extremism in Australia and the region. She has offered each of the offenders an opportunity to participate in a structured mentoring program that is based at Curtin University in Perth. That program would be of particular benefit to Mr Shiddiquzzaman as he intends to return to Perth as soon as possible. As to whether the program could be of benefit to Mr Thorne would depend on where he intends to reside with his family in the future. It has been suggested that Mr Thorne could make monthly visits to Perth to be part of the mentoring program, whilst living in Sydney, but I think that is unlikely to occur as it would involve considerable cost that could not be met by Mr Thorne.

Parity

1. The co-offender was charged with two counts of take a flight with a ticket obtained by use of carriage service with false identification, contrary to section 376.3(2) Criminal Code (Cth). He was dealt with by Magistrate Hawkins on 22 May 2015 after entering pleas of guilty. He had a record involving minor traffic matters that was irrelevant to the Magistrate's determination. He was 22 years of age and enrolled at university. He made admissions and accepted responsibility for his actions which were denounced by his family. The magistrate accepted that he had been foolish and had not played any part in the booking of the tickets in false names. The magistrate imposed a community-based order for a period of 12 months on the basis that the co-offender was supervised and required to participate in programs as directed.
2. The parity principle is an aspect of the systemic objectives of consistency and equality before the law-the treatment of like cases like, and different cases differently, Green v The Queen (2011) 244 CLR 462 at [28]. The principle is to be applied at first instance and on appeal.
3. There is no rule of law which requires co-offender is to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously with the circumstances of each offender with his involvement in the offence are different than different sentences may be called for but justice should be even-handed. Any difference between sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done, Lowe v The Queen (1984) 154 606 at 623.
4. Disparity may be justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise, Green at [31]-[32].
5. I have had regard to the sentence imposed on the co-offender. I have come to a different conclusion on penalty to that imposed by the magistrate on the co-offender, by reference to his age his excellent prospects for rehabilitation and his lesser involvement in the offences.
6. I have had regard to section 17A(1) of the Act and I am satisfied that after having considered all other available sentences that no other sentence other than a sentence of imprisonment is appropriate in all the circumstances of these cases. The reasons for this decision are that in these cases: 1. the offences committed are objectively serious; 2. there is a significant need for general deterrence; 3. there is a need for specific deterrence; 4. there is a need for denunciation of the offending conduct; and shipped 5. that whilst the subjective considerations relating to each of the offenders are persuasive they are necessarily subsidiary to the duty of the Court to ensure that they are given a punishment of appropriate severity.

Penalty - Mr Shiddiquzzaman

1. Section 20AB of the Act and clause 6 Crimes Regulations 1990 provide that an Intensive Corrections Order is available as a sentencing alternative for federal offenders.
2. The Court has considered section 17A(1) of the Act and is satisfied for the reasons given that no penalty other than imprisonment is appropriate, and that the sentence will be for a period of no more than 2 years.
3. It is appropriate in the case of Mr Shiddiquzzaman to consider an alternative to full-time imprisonment, because of his age, his prospects for rehabilitation and his role in the offences.
4. Mr Shiddiquzzaman is referred for assessment as to his suitability for an Intensive Corrections Order as a means of serving the sentence.
5. Mr Shiddiquzzaman is directed to report to the Bankstown Community Corrections Office in person on or before 4.00pm on 13 August 2015. His appeal is adjourned part heard before me to 6 October 2015.

Penalty - Mr Thorne

1. The Court has considered section 17A(1) of the Act and is satisfied for the reasons given that no penalty other than imprisonment is appropriate, and that the sentence will be for a period of no more than 2 years.
2. However, the alternative to full-time imprisonment of either an Intensive Corrections Order or a Home Detention Order should not be invoked in Mr Thorne's case because of the need for general and specific deterrence, his age, his lack of acceptance of responsibility for his actions and his superior role in the offending conduct. Mr Thorne's prospects for rehabilitation will be improved by providing for a longer than normal period of the sentence to be subject to a recognizance release order.
3. Taking into account all of those matters I make the following orders: 1. Mr Throne's appeal against the severity of his sentence is allowed; 2. I set aside the penalty imposed by the Magistrate and in lieu thereof: 1. in relation to each of the offences contrary to section 376.3(2) Criminal Code 1995 (Cth) he is sentenced to a term of imprisonment of 3 months to date from today and expire on 5 November 2015 and are to be served concurrently; 2. in relation to the offence contrary to section 376.3(1) Criminal Code 1995 (Cth) he is sentenced to a term of imprisonment of 7 months to commence from 6 September 2015 and I make a recognizance release order that he be released after 3 months of that term on 5 December 2015.
4. The total effective sentence I have imposed is one of 8 months imprisonment, to commence today and he is to be released upon a recognizance release order on 5 December 2015 after serving 4 months.

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: 30 October 2015