[2013] NSWCCA 115
Alvares v R (2011) 209 A Crim R 297
[2010] VSCA 281
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
Douar v R (2005) 159 A Crim R 154
[2005] NSWCCA 455
DPP (Cth) v Besim and Anor (No. 3) (2017) 322 FLR 96
[2015] HCA 29
GAS v The Queen (2004) 217 CLR 198
Source
Original judgment source is linked above.
Catchwords
[2013] NSWCCA 115
Alvares v R (2011) 209 A Crim R 297[2010] VSCA 281
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
Douar v R (2005) 159 A Crim R 154[2005] NSWCCA 455
DPP (Cth) v Besim and Anor (No. 3) (2017) 322 FLR 96[2015] HCA 29
GAS v The Queen (2004) 217 CLR 198[2004] HCA 22
Khazaal v R (No. 2) (2013) 233 A Crim R 106[2013] NSWCCA 140
Liu v R [2018] NSWCCA 70
Lodhi v R (2007) 179 A Crim R 470[2007] NSWCCA 360
Mun v R [2015] NSWCCA 234
R v AB (2011) 59 MVR 356[2009] NSWCCA 102
R v Khalid [2017] NSWSC 1365
R v Khazaal [2009] NSWSC 1015
R v Lodhi (2006) 199 FLR 364[2006] NSWSC 691
R v Mulahalilovic [2009] NSWSC 1010
R v Qutami (2001) 127 A Crim R 369[2001] NSWCCA 353
R v Thalari (2009) 75 NSWLR 307[2009] NSWCCA 170
Shi v R [2017] NSWCCA 126
Taylor v R [2018] NSWCCA 50
The Queen v Olbrich (1999) 199 CLR 270[1999] HCA 54
Truong v R [2013] NSWCCA 36
Weininger v The Queen (2003) 212 CLR 629Mr Y ShariffMs J Alderson (Crown)
Mr B Walker SC
Mr A Djemal (Offender)
Judgment (20 paragraphs)
[1]
WCCA 234
R v AB (2011) 59 MVR 356; [2011] NSWCCA 229
R v Alameddine (No. 1) [2018] NSWSC 668
R v Alameddine (No. 2) [2018] NSWSC 669
R v Alou (No. 4) [2018] NSWSC 221
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Khalid [2017] NSWSC 1365
R v Khazaal [2009] NSWSC 1015
R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691
R v Mulahalilovic [2009] NSWSC 1010
R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170
Shi v R [2017] NSWCCA 126
Taylor v R [2018] NSWCCA 50
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Truong v R [2013] NSWCCA 36
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Xiao v R [2018] NSWCCA 4
Z v R [2015] NSWCCA 274
Texts Cited: ---
Category: Sentence
Parties: Regina (Crown)
Talal Alameddine (Offender)
Representation: Counsel:
Mr P McGuire SC; Mr Y Shariff; Ms J Alderson (Crown)
Mr B Walker SC; Mr A Djemal (Offender)
[2]
Solicitors:
Director of Public Prosecutions (Crown)
Zahr Partners (Offender)
File Number(s): 2015/302381
Publication restriction: ---
[3]
REMARKS ON SENTENCE
JOHNSON J: On the afternoon of Friday, 2 October 2015, a terrorist attack occurred in a public street at Parramatta in western Sydney. An innocent man, Curtis Cheng, was murdered after leaving the NSW Police Headquarters building where he worked as a civilian accountant. Mr Cheng was shot dead by Farhad Jabar Khalil Mohammad ("Farhad"), a 15-year old radicalised and extremist supporter of the fanatical terrorist organisation, Islamic State. Farhad was himself then shot dead in a gun fight with Special Constables in the street in Parramatta.
The firearm used by Farhad as a murder weapon was an old, but fully functional, British service revolver. The revolver had been handed to Farhad shortly before the murder by Raban Alou ("Alou"), another radicalised and extremist supporter of Islamic State. Alou had obtained the revolver that day from the Offender, Talal Alameddine.
Alou was sentenced for his part in these criminal events on 1 March 2018: R v Alou (No. 4) [2018] NSWSC 221.
It is now the task of the Court to sentence the Offender for crimes which reflect his role in this terrible event. His offences differ, in significant respects, from the offence for which Alou was sentenced.
[4]
The Offences
The Offender appears for sentence following his pleas of guilty to an indictment containing the following charges:
1. that between 1 October 2015 and 2 October 2015, he did intentionally possess a thing, namely a .38 special calibre Smith & Wesson model British service revolver, that was connected with the preparation for a terrorist act and he was reckless as to the connection of the thing to the preparation for a terrorist act contrary to s.101.4(2) Criminal Code 1995 (Cth) ("Criminal Code"); and
2. that on 2 October 2015, he did supply a pistol, a .38 special calibre Smith & Wesson model British service revolver, to Alou , without Alou being authorised to possess the pistol by a licence or permit contrary to s.51(1A) Firearms Act 1996 (NSW) ("the supply pistol offence").
The maximum penalty for the terrorism offence under s.101.4(2) of the Criminal Code is imprisonment for 10 years. The maximum penalty for the supply pistol offence under s.51(1A) Firearms Act 1996 (NSW) is imprisonment for 20 years with a standard non-parole period of 10 years.
In addition, the Offender has admitted three further State offences and asks the Court to take these offences into account under s.32 Crimes (Sentencing Procedure) Act 1999 (NSW) when passing sentence for the supply pistol offence. Those offences are:
1. on or about 2 October 2015, possessing a firearm in contravention of a Firearms Prohibition Order ("FPO") that was in force under s.74(1) Firearms Act 1996 (NSW) - if prosecuted separately, the maximum penalty for this offence would be 14 years' imprisonment;
2. on or about 6 October 2015, possessing a prohibited pistol, a semi-automatic handgun or an imitation thereof, without being authorised to possess the pistol by a licence or permit contrary to s.7(1) Firearms Act 1996 (NSW) - if prosecuted separately, the maximum penalty for this offence would be 14 years' imprisonment with a standard non-parole period of four years; and
3. on or about 6 October 2015, possessing a firearm in contravention of a FPO that was in force pursuant to s.74(1) Firearms Act 1996 (NSW).
[5]
The Sentencing Hearing
On 3 October 2017, the Offender pleaded guilty to the offences on the indictment and asked for the further offences to be taken into account on sentence. A sentencing hearing took place on 2 March 2018 and 27 April 2018.
A number of documents and other items were tendered at the sentencing hearing on behalf of the Crown and the Offender. No oral evidence was given by any person including the Offender.
In a number of areas, there was a dispute between the parties as to what findings the Court should make for the purpose of sentence. These arguments proceeded by reference to the evidentiary material and findings will be made in areas of controversy in the following factual narrative.
In resolving disputed facts, the Court may only make a finding of fact adverse to the Offender if satisfied beyond reasonable doubt of that fact. On the other hand, if there are matters which the Offender seeks to rely upon to reduce penalty, it is enough if those matters are proved by the Offender on the balance of probabilities: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at 69-71 [64]-[66].
It is appropriate to observe, however, that some disputed issues of fact may not be capable of resolution in a way that goes either to increase or decrease the sentence that is to be imposed. There may be issues which the material available to the Court will not allow to be resolved in that way: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at 636 [19]. The Court will seek to make findings by reference to material which is relevant and known to the Court: s.16A(2) Crimes Act 1914 (Cth); s.21A(2) and (3) Crimes (Sentencing Procedure) Act 1999 (NSW); Weininger v The Queen at 635-637 [17]-[21]; Filippou v The Queen at 69-73 [61]-[72].
A sentencing Judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform an offender's moral culpability. However, it may not be possible for the Judge to ascertain everything which is relevant, especially where an offender (as here) chooses not to offer any evidence on the plea: Filippou v The Queen at 72 [70].
Further, it must be recognised that not every matter urged on a sentencing Judge has to be, or can be, fitted into categories of aggravating or mitigating circumstances. The Court may be unpersuaded of matters urged in mitigation or in aggravation. Of course, the absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation: Weininger v The Queen at 638 [24].
[6]
Facts of the Offences
Parts of the factual narrative which follows refer to acts of Alou and statements made by him before the Offender came on the scene in late September 2015. I have referred to acts and statements of Alou which indicate his radicalised and extremist views and his motive for a terrorist attack to occur. These features assist an understanding of Alou's mindset at the time when he interacted with the Offender in the period before the murder of Mr Cheng on 2 October 2015.
The Terrorist Attack on 2 October 2015
At about 4.30 pm on 2 October 2015, Farhad walked up behind Mr Cheng, who was leaving the NSW Police Headquarters in Parramatta after work, and shot him in the back of the head with a .38 special calibre Smith & Wesson model British service revolver ("revolver"). Mr Cheng died instantly. Farhad then exchanged gunfire with NSW Police Special Constables and was shot dead.
Found inside a pocket of Farhad's clothing was a note written by him that made clear that the act of killing Mr Cheng was a religiously inspired act of terrorist violence carried out in support of Islamic State. The note reflected the perverse and poisonous views held by Farhad and Alou. The note stated:
"Oh you disbelievers!!!
Know your security means nothing to us. Know your weapons are nothing compared to what we have, our Lord, the all powerful and the all encompassing.
Know that you all are being watched 24/7, while you are asleep, awake, planning But soon by the will of God the Exalted, your nights will turn into nightmares, your days into hell and you planning is nothing to us!!
By the will of Allah have come today to put terror in your hearts. And soon the mujahideen will do the same, by the will of Allah
Dawlatul Islam
Baqiya
Bi'dnillah."
The loaded revolver used to commit the terrorist attack was given to Farhad by Alou at the Parramatta Mosque less than one hour before the attack.
The Offender (then aged 22 years) had supplied the revolver to Alou earlier that afternoon.
When recounting events concerning the use of a firearm for a terrorist act, it is appropriate to keep in mind another event which occurred in late 2014. On 15 and 16 December 2014, a terrorist incident took place in the Lindt Café in Sydney where the perpetrator was armed with a firearm and claimed to be acting in support of Islamic State. That notorious event shocked the Australian population. As the Crown submitted, it gave rise to an increased level of alert in the community concerning the possibility of a terrorist attack and the use of firearms in such an incident. Like every other member of the Australian population, it may be taken that the Offender heard of what happened at the Lindt Café. His preparedness to supply a pistol some 10 months later which was to be used in a terrorist attack must be considered against this background.
A Firearm Prohibition Order Made Against the Offender on 28 October 2014
[7]
Findings Concerning the Motive of the Offender for Supplying the Revolver to Alou and Associated Issues
Both the Crown and Senior Counsel for the Offender made detailed submissions concerning the Offender's motive in providing the revolver to Alou on 2 October 2015, including the question whether he supplied it for free or for payment. An associated question was whether the Offender had sympathy for the Islamic State cause and, if so, whether this played a part in his willingness to provide the weapon used in a terrorist act.
Neither the terrorism offence under s.101.4(2) of the Criminal Code nor the supply pistol offence under the Firearms Act 1996 (NSW) required proof of a particular motive on the part of the Offender. The question of the Offender's motive to commit these offences, and his knowledge or belief as to what use was to be made of the revolver, were matters which bear upon the objective gravity of the offences.
In summary, the Crown submitted that:
1. the Court should find that the Offender supplied the revolver to Alou for free and that this shed light upon the Offender's willingness to support the commission of a terrorist act other than for financial gain;
2. even if the Offender supplied the revolver to Alou for financial gain, this did not diminish what was otherwise a high level of objective gravity of the offences;
3. the Offender had manifested signs of radicalisation, in particular with respect to his conduct with Constable Hannah on 5 July 2015, and this aspect assisted a finding to be made as to the Offender's motive to commit the offences on 1 and 2 October 2015;
4. the words or conduct of other persons (summarised in Exhibit N) fortified a conclusion that the Offender provided the revolver to Alou for free and that he had a radicalised connection with the Islamic State cause, in support of which Alou himself committed an offence;
5. the combination of evidence, including the meetings and discussions between the Offender and Alou on 2 October 2015 (involving more than 13 minutes of them being together and in conversation) and other evidence bearing upon the issue supported a finding that the Offender was (at least) sympathetic to the Islamic State cause and that this assisted an understanding as to why he supplied the revolver to Alou, and his state of mind concerning what was proposed to be done with the revolver.
In summary, Senior Counsel for the Offender submitted that:
1. the evidence did not permit a finding that the Offender was, to any extent, radicalised or a person with sympathies for the cause of Islamic State;
2. a finding should not be made that the Offender supplied the revolver to Alou for free - rather, to the extent that the evidence permitted a finding on this issue, the Court should find that the revolver was supplied for financial gain;
3. the conduct and words of other persons, upon which the Crown seeks to rely with respect to the question of radical beliefs of the Offender and whether the revolver had been supplied for free (Exhibit N), if admissible at all, ought be given no weight as the material did not involve an admission by the Offender in any form or any other type of admissible evidence;
4. unlike the case against Alou, there was no electronic evidence of communications to or from the Offender which revealed that he held radical beliefs in support of Islamic State, with it being acknowledged by investigating police that Operation Appleby commenced on 8 May 2014 and that the Offender was not under surveillance as part of that Operation (Exhibit 1, Tab 15);
5. it would be speculative to rely upon the meetings and discussions between the Offender and Alou on 2 October 2015, which extended for more than 13 minutes, and that no specific finding adverse to the Offender should be made arising from that evidence;
6. the Court should keep in mind that the Offender's plea of guilty to the terrorism charge in s.101.4(2) of the Criminal Code involved an admission by him of recklessness but not more, and that the plea of guilty to the supply pistol charge did not involve any admission of the Offender's knowledge or intention with respect to the purpose to which the revolver was to be put.
[8]
Some General Principles Relevant to Sentencing for Terrorism Offences
In due course, it will be necessary for the Court to apply s.16A Crimes Act 1914 (Cth) with respect to the terrorism offence and ss.3A and 21A Crimes (Sentencing Procedure) Act 1999 (NSW) with respect to the supply pistol offence, together with s.32 Crimes (Sentencing Procedure) Act 1999 (NSW) concerning the Form 1 offences.
As protection of the community, punishment of an offender, denunciation of the offence and specific and general deterrence are dominant sentencing factors for a terrorism offence, the subjective circumstances of an offender must necessarily be given less weight: R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691 at 380-381 [91]-[92]; Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360 at 539 [274]; R v Khazaal [2009] NSWSC 1015 at [47]. The need for a substantial element of general deterrence flows, in part, from the fact that terrorism offences can be hard to detect: Khazaal v R (No. 2)(2013) 233 A Crim R 106; [2013] NSWCCA 140 at 113-114 [41].
Courts have stated that substantial and condign sentences are warranted for terrorist offences and this is so even though it may be said that deterrence may be of relatively less significance given that the force of ideological or religious motivation means that deterrence is unlikely to work: DPP (Cth) v Fattal [2013] VSCA 276 at [169]; DPP (Cth) v MHK [2017] VSCA 157 at [52]-[53].
[9]
The Terrorism Offence under s.101.4(2) Criminal Code
The s.101.4(2) offence and the supply pistol offence apply to two different phases of the events. The s.101.4(2) offence is directed to the period on 1 and 2 October 2015 when the Offender possessed the revolver. The supply pistol offence applies to his act of handing the item to Alou. There are discreet, but overlapping, areas of criminality involved in the two offences.
The Offender is to be sentenced for the offence under s.101.4(2) Criminal Code for which the maximum penalty is 10 years' imprisonment. This offence is of a lesser order of gravity than, for example, the offence under ss.11.2(1) and 101.1(1) Criminal Code to which Alou pleaded guilty, being an offence punishable by life imprisonment.
The purpose underlying s.101.4(2) was explained by Whealy J in R v Mulahalilovic [2009] NSWSC 1010 in the following way at [48]:
"The broad purpose of the creation of an offence of the kind involved in this sentencing exercise is to deter the emergence of circumstances which may render more likely the carrying out of a terrorist act. It is to punish those who contemplate or recklessly commit action of the prohibited kind. It is to denounce the activities of terrorists and their adherents. It is to incapacitate them so that the community will be protected from the horrific consequences contemplated or made possible by their actions. The legislation is designed to bite early, long before the acts connected with terrorism mature into circumstances of a deadly or dangerous consequence. The legislation generally extends to the actions of those who act recklessly, as well as to those who act intentionally and knowingly. The maximum penalty for the present offence recognises that the present offence is not as serious as other terrorist offences, but it remains an offence of some considerable seriousness. The intentional possession of items that may be used in a terrorist attack, particularly items that may cause death, even where that possession is reckless rather than knowingly motivated, is a dangerous adjunct to terrorism and must be denounced and deterred by significant penalties, where that is appropriate."
The offence under s.101.4(2) is concerned with actions even where the contemplated terrorist act has not come to fruition or fulfilment. The legislation caters for prohibited activities connected with terrorism even where no target has been selected or no final decision made as to who will carry out the ultimate act of terrorism. There is a need to assess an offender's state of mind, so far as it can be ascertained, by reference to his actions and his plea: R v Mulahalilovic at [51].
[10]
The Supply Pistol Offence
The legislative regime for firearms regulation in NSW contained in the Firearms Act 1996 (NSW) arose from a national campaign to implement stronger firearm controls following the tragic events at Port Arthur in Tasmania in April 1996: R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170 at 314 [44]. Public safety and protection of the community lie at the heart of the Firearms Act 1996 (NSW): Taylor v R [2018] NSWCCA 50 at [46].
The supply pistol offence contained in s.51(1A) was created by the Firearms Amendment (Public Safety) Act 2002 (NSW). In the second reading speech with respect to that Act, the Minister for Police said that the amendments made by it would build on 2001 firearm trafficking reforms "to provide increased public safety in relation to illegal firearms" (Hansard Legislative Assembly, 18 June 2002). A maximum penalty of 20 years' imprisonment was fixed for a supply pistol offence. A standard non-parole period of 10 years was introduced for this offence in 2008.
The gravity of supply pistol offences under s.51(1A) is reflected by the fact that the applicable maximum penalty and standard non-parole period are at the highest level for offences under the Firearms Act 1996 (NSW).
As noted earlier, the supply pistol offence under s.51(1A) is not a terrorism offence and does not have a fault element of recklessness.
In the context of a s.51(1A) offence involving the professional supply of firearms, it was observed that every firearm supplied by an offender could fall into the hands of a hardened criminal or others with potentially catastrophic results, with the Court emphasising that "events in Australia and overseas demonstrate the ghastly consequences of illicit lethal weapons being at large in the community": Truong v R [2013] NSWCCA 36 at [66]; Bejanov v R [2013] NSWCCA 207 at [60]. Parliament had indicated by way of the maximum penalty and standard non-parole period "that those who profit from trading in lethal weapons should receive condign punishment": Truong v R at [66].
Firearms offences are an increasing threat to the community, and the possession and sale (or supply) of such weapons fuels the commission of crimes involving firearms so that general deterrence is of great importance in deterring such crime: Z v R [2015] NSWCCA 274 at [127].
[11]
The Form 1 Offences
In passing sentence for the supply pistol offence, the Court is asked to take into account three further offences under the Firearms Act 1996 (NSW). In doing so, the Court has regard to these further offences with a view to increasing the penalty that would otherwise be appropriate for the supply pistol offence. The Court gives greater weight to the need for personal deterrence and the community's entitlement to exact retribution for serious offences: Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at 425-426 [22]. This approach will generally lead to the imposition of a longer sentence (and in some cases, a significantly longer sentence) than would otherwise be required if the Form 1 offences were not taken into account: Abbas v R at 426 [23].
The Court does not impose a distinct penalty for the Form 1 offences to be taken into account and it is not appropriate to quantify the period or periods which may attach to these offences in taking them into account on sentence for the supply pistol offence: Abbas v R at 421 [14], 425-426 [22]. In proceeding in this way, the Court is, of course, limited by the maximum penalty for the supply pistol offence. The principle of totality also has some application: Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 at 158-159 [39]-[42].
An assessment of the objective gravity of the Form 1 offences will assist the process of taking these matters into account on sentence. Each of the Form 1 offences is objectively serious.
The first Form 1 offence relates to the Offender's possession of the revolver on 2 October 2015 when he was subject to a FPO so that his possession of the revolver on that day involved further significant criminality. In possessing the revolver on that day before he supplied it to Alou, he was acting in defiance of an order made by the Commissioner of Police under the law of New South Wales in the interests of public safety. The system for making FPOs is an important adjunct to the statutory object of community protection which is central to the Firearms Act 1996 (NSW). The Offender was ignoring his obligation under the FPO and was committing a very serious additional firearms offence whilst he was subject to the order.
The second and third Form 1 offences relate to events on 6 October 2015.
[12]
The Offender's Subjective Circumstances
The Offender was born in December 1992. He was 22 years old at the time of the offence and is now 25 years of age.
Prior Criminal History
The Offender has a criminal history.
On 24 August 2011, the Offender appeared before Fairfield Local Court for an offence of concealing a serious indictable offence of another person for which he was fined $400.00.
On 1 December 2012, the Offender appeared before Fairfield Local Court on a charge of affray in relation to which he was fined $800.00 and placed on a two-year good behaviour bond.
On 12 February 2013, the Offender appeared before Fairfield Local Court on a charge of possession of ammunition without holding a licence or permit in relation to which he was fined $1,000.00. On the same day, he was fined $400.00 for offences of possession of a prohibited drug and attempt to possess an anabolic or androgenic steroidal agent. For an offence of common assault, a suspended sentence of 12 months' imprisonment was imposed.
On appeal to the Parramatta District Court on 1 March 2013, the sentence for the common assault offence was varied to a suspended sentence of imprisonment for three months.
On 16 September 2015, the Offender appeared again before the Fairfield Local Court and was fined $1,500.00 for an offence of assaulting an officer in the execution of his duty.
It may be seen then that, at the time of the commission of the present offences, the Offender was subject to the FPO and had appeared before a criminal court just two weeks earlier with respect to his commission of a criminal offence. Despite these circumstances, the Offender was prepared to offend on 1-2 October 2015 and on 6 October 2015 in the grave respects for which he is to be sentenced today.
As noted earlier, the Offender was arrested on 15 October 2015 and has remained in custody since that time.
Offences Committed After the Present Offences
The Offender's criminal history includes offences committed after the offences for which he is to be sentenced today.
On 10 May 2017, the Offender was sentenced at the Central Local Court for four offences of being a witness who refused or failed to answer questions at a hearing, in relation to which he was sentenced to concurrent terms of imprisonment for nine months commencing on 22 November 2016 with a non-parole period of five months concluding on 21 April 2017. The Court was informed at the sentencing hearing that these offences arose out of the attendance of the Offender before the New South Wales Crime Commission on 7 October 2015, for the purpose of him being examined concerning events which occurred on 2 October 2015 surrounding the murder of Mr Cheng.
[13]
The Offender's Conditions in Custody
The Crown tendered affidavits of Steven Barracosa affirmed 19 January 2018 (Exhibit B) and Geoffrey Poulsen affirmed 22 February 2018 (Exhibit C).
Mr Barracosa is the Acting Senior Psychologist of the Proactive Integrated Support Model ("PRISM") within Corrective Services New South Wales. Mr Barracosa explained PRISM which involves a State-wide multi-disciplinary team providing a custody-based service for offenders identified at risk of radicalisation towards violent extremism. Participation in PRISM is voluntary with consideration to entry into the program not arising until after sentence is imposed. Mr Barracosa explained the operation of PRISM.
The Offender does not acknowledge that he has now, or at any time, held extremist or radicalised views. His position may be contrasted with Alou who stated readily that he held extremist views and continued to do so at the time of sentence. I have made a finding earlier in these remarks with respect to the Offender's sympathy towards the Islamic State cause with which Alou was affiliated. I do not accept that he has never held views sympathetic to Islamic State. I approach the sentencing of the Offender upon the basis that he will have an opportunity to undertake PRISM in custody if he seeks to do so.
Geoffrey Poulsen is the Senior Assistant Superintendent of the High Risk Management Correctional Centre ("HRMCC") at the Goulburn Correctional Complex. In his affidavit, Senior Assistant Superintendent Poulsen explained the operations of the HRMCC. He noted that, as at 22 February 2018, the Offender is on Stage 2 Level 2 of the behavioural management plan which dictates what sanctions and privileges apply to him whilst he is held at the HRMCC.
The Offender has been classified as an Extreme High Risk Restricted ("EHRR") inmate since 10 December 2015. Since being in custody, the Offender has had 16 persons approved as visitors and there are two pending applications for approval. The Offender has eight telephone numbers on his phone account with five of these being personal numbers and three being legal contacts.
The Offender has access to amenities including library books, the legal computer room, basketball courts and sports yards.
Senior Assistant Superintendent Poulsen noted that Justice Health provides health care to all persons at the HRMCC with a nurse attending that facility each morning and with inmates being able to have access to that service on request. If an inmate needs to see a doctor, then this can be arranged through Justice Health.
[14]
The Offender's Pleas of Guilty
It is necessary for the Court to take into account the Offender's pleas of guilty for the purposes of s.16A(2)(g) Crimes Act 1914 (Cth) and ss.21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999 (NSW).
The Offender relied upon an affidavit of Sarah Khan sworn 28 February 2018 which set out a chronology of the Offender's offers to plead guilty.
The Offender was arrested and charged on 15 October 2015. The brief of evidence was substantially served by late October 2016 and completely served by 19 April 2017 ahead of the committal proceedings listed for early May 2017.
It appears that discussions concerning pleas of guilty commenced in early May 2017, in the context of the committal proceedings, with correspondence being exchanged between the legal representatives for the Offender and the Crown with respect to these offers. On 11 May 2017, the Offender was committed for trial from the Local Court to the Supreme Court.
The Offender was arraigned in the Supreme Court on 7 July 2017 and a trial date of 4 June 2018 was fixed for the Offender and his co-accused.
By letter dated 6 July 2017, the Offender offered to plead guilty to the present charges and this offer was accepted by the Crown on 14 August 2017, subject to the clarification of certain issues.
Thereafter, the Offender appeared before me in the Arraignments List on 6 October 2017 when he pleaded guilty to the two offences contained on the present indictment and indicated an intention to ask that the further three offences be taken into account on sentence on a Form 1. On that day, the Court vacated the Offender's trial in light of his pleas of guilty.
Accordingly, the Offender offered to plead guilty to the charges now before the Court at about the time of his arraignment in this Court on 7 July 2017 with that offer being accepted by the Crown on 14 August 2017.
Since the decision of the Court of Criminal Appeal in Xiao v R [2018] NSWCCA 4, it is clear that the Court is entitled to take into account the utilitarian value of a plea of guilty in sentencing for a Commonwealth offence under s.16A(2)(g) Crimes Act 1914 (Cth).
When sentencing for Commonwealth offences, it is desirable that any discount given for the utilitarian value be specified by the sentencing court: Xiao v R at [279]-[280]; Liu v R [2018] NSWCCA 70 at [9].
[15]
Contrition, Remorse and Prospects of Rehabilitation
The Court should have regard on sentence to any evidence of contrition and remorse on the part of the Offender: s.16A(2)(g) Crimes Act 1914 (Cth); s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999 (NSW).
It was submitted for the Offender that genuine contrition had been demonstrated by his pleas of guilty, statements made by him to Ms White and Dr Nielssen and expressions of remorse to family members and friends who had provided references.
The Crown submitted that, in the absence of evidence from the Offender, little or no weight should be given to third-party reports of claims of contrition or remorse on the Offender's part. It was submitted, as well, that the Offender's pleas of guilty ought not be regarded as being reflective of genuine remorse or acceptance of responsibility or willingness to facilitate the course of justice to any meaningful degree. It was submitted that the Offender's guilty pleas ought be regarded as amounting to mere recognition of the inevitable in the face of an overwhelming Crown case.
It has been said that the assessment of the genuineness of remorse is likely to be better informed in circumstances where it is expressed directly to the Court, as remorse is an intrinsically subjective matter, the evaluation of which depends upon human interaction: Mun v R [2015] NSWCCA 234 at [29]. Likewise, it has been emphasised that considerable caution must be exercised in determining what weight, if any, can be placed upon self-serving and untested statements by an offender contained in a report of a health professional: Mun v R at [40].
It has been observed as well that remorse means regret for the wrongdoing which the Offender's actions have caused because it can be safely assumed that an offender will always regret the fact of apprehension: Alvares v R (2011) 209 A Crim R 297; [2011] NSWCCA 33 at 313 [44].
The Offender has not given evidence at the sentencing hearing. The Court has not been able to make an assessment of his claimed contrition and remorse, this being an issue upon which he bears the onus of establishing on the balance of probabilities as a mitigating factor: Mun v R at [35].
As noted earlier, the Offender committed the present offences whilst subject to a FPO and some two weeks after he had appeared before another court for sentence with respect to criminal offences. Further, four days after the use of the revolver which he had supplied to Alou to murder Mr Cheng in a notorious terrorist attack, the Offender was again committing firearm offences which are before this Court to be taken into account on sentence.
[16]
Victim Impact Statement on Behalf of the Cheng Family
Mrs Selina Cheng made a victim impact statement prepared on behalf of herself, her son, Alpha Cheng, and her daughter, Zilvia Cheng. Zilvia was present in Court at the time when the statement was made.
The Court may take into account on sentence a victim impact statement of any persons who are victims of the offence and who have suffered harm as a result of the offence: ss.16A(2)(ea), 16AAA and 16AB Crimes Act 1914 (Cth); s.28 Crimes (Sentencing Procedure) Act 1999 (NSW).
The direct victim of the terrorist act, Mr Cheng, was an Assistant Management Accountant employed by the New South Wales Police Force as a civilian finance worker. He worked at the Police Headquarters Building in Parramatta. He had been employed by the New South Wales Police Force from 1 November 1997 until the date of his death on 2 October 2015, a period of almost 18 years. Mr Cheng was 58 years old at the time of his death. He was leaving work and was unarmed on 2 October 2015. He was innocently going about his normal affairs, walking down the street, when he was selected randomly as the target for a terrorist attack. He was shot dead in the horrific circumstances described earlier in these remarks.
The victim impact statement read by Mrs Cheng provides eloquent and profound support for the loss suffered by the family as a result of these crimes. The trauma, grief and emotional harm caused to Mr Cheng's family, his friends and colleagues are apparent from the words spoken in the victim impact statement and the circumstances of the terrible loss of this fine man.
It is appropriate that I repeat comments made in Court after Mrs Cheng made the victim impact statement. I express publicly the sympathy and condolences of the Court and the Australian community for the profound loss which the Cheng family has suffered. Mrs Cheng and her family have approached the enormous challenges posed by these terrible events in ways that provide a lesson for the whole Australian community. Their fortitude and dignity in the face of great adversity is extraordinary.
[17]
Statutory Factors to be Taken Into Account on Sentence
It is necessary for the Court to have regard to a number of factors specified in s.16A Crimes Act 1914 (Cth) and ss.3A and 21A Crimes (Sentencing Procedure) Act 1999 (NSW). A number of these matters have already been referred to in these sentencing remarks.
The Court must have regard to the nature and circumstances of the offence and course of conduct: s.16A(2)(a) and (c) Crimes Act 1914 (Cth). The s.101.4(2) offence in this case is an extremely serious one which lies at the high end of the scale of seriousness for offences of this type. Likewise, I have made a finding that the supply pistol offence is of very substantial gravity.
The Court is required to have regard to the personal circumstances of the victim and any evidence of harm, loss and damage: s.16A(2)(d) and (e). I have made findings with respect to these matters at [286]ff above.
For reasons explained earlier, I am not satisfied that the Offender has displayed contrition or remorse: s.16A(2)(f) (see [276]ff above).
I have considered above (at [258]ff) the approach to be taken to the Offender's pleas of guilty and will allow a 15% discount for the utilitarian value of his plea of guilty for the Commonwealth offence: s.16A(2)(g). A similar discount will be applied for the utilitarian value of the plea for the supply pistol offence: ss.21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999 (NSW).
The Court must have regard to personal deterrence: s.16A(2)(j). It was submitted for the Offender that he has spent more than two years in custody and has made some headway towards rehabilitating himself. It was submitted that the report of Dr Nielssen was pertinent to his progress towards drug rehabilitation so that it is not necessary to make any substantial allowance for specific deterrence in this case. The Crown submitted that personal deterrence remained an important factor on sentence with respect to the Offender.
The Offender has a prior criminal history which indicated repeat offending on his part prior to the commission of the present offences. As already noted, he was subject to a FPO and had only two weeks before appeared before a criminal court for sentence. Against that background, the Offender supplied the revolver used in this terrorist act and four days later committed further firearm offences.
[18]
Other Statutory Factors Bearing on Sentence
Section 19AG Crimes Act 1914 (Cth) requires the Court in sentencing for a terrorist offence to fix a non-parole period which is at least three-quarters of the head sentence. The operation of s.19AG should not result in a lower head sentence being imposed in an effort to ensure that a specific minimum term can be found to apply: R v Lodhi at 383 [105]-[108].
I note that the provisions now contained in s.105A.23 Criminal Code apply where a continuing detention scheme operates for high-risk terrorist offenders. It is a requirement of that provision that a sentencing court provide a warning to a person at the time of sentence of the existence and operation of that provision and I will do so. The existence of the continuing detention regime after the expiration of the sentence is not to be taken into account in the imposition of the sentence itself: DPP (Cth) v Besim and Anor (No. 3) (2017) 322 FLR 96; [2017] VSCA 180 at 111 [59].
The Court must impose a discrete sentence for the Commonwealth offence and the State offence. It was common ground that the Offender's criminal conduct with respect to the Commonwealth offence overlaps, to an extent, with his offending conduct under the State offence so that double punishment for acts constituting common elements is to be avoided.
When sentencing for Commonwealth and State offences, the Court must impose separate non-parole periods for the offences: s.19AJ Crimes Act 1914 (Cth).
It is appropriate to backdate the sentences to be imposed on the Offender to reflect the fact he has already been in custody for some time for these matters. The Court is authorised to backdate the sentence for the supply pistol offence under ss.24 and 27 Crimes (Sentencing Procedure) Act 1999 (NSW). Likewise, the Court is authorised to backdate the sentence for the s.101.4(2) offence under s.16E Crimes Act 1914 (Cth), which applies ss.24 and 27 Crimes (Sentencing Procedure) Act 1999 (NSW) to Commonwealth offences: Shi v R [2017] NSWCCA 126 at [9].
When sentencing for Commonwealth and State offences at the same time, the Court is required to direct when the Commonwealth sentence is to commence and must ensure that the Commonwealth sentence does not commence later than the end of the commencement of a sentence which has already been fixed: s.19(3)(c) Crimes Act 1914 (Cth).
[19]
Determining the Appropriate Sentences
It is necessary to draw together all the objective and subjective factors and the sentencing principles to which reference has been made in these lengthy sentencing remarks.
The s.101.4(2) offence is an especially serious example of this class of offence punishable by a maximum penalty of imprisonment for 10 years.
The supply pistol offence is likewise an especially serious example of that class of offence punishable by a maximum penalty of 20 years' imprisonment with a standard non-parole period of 10 years. Further, the serious additional matters to be taken into account on the Form 1 must be reflected in the sentence to be imposed for the supply pistol offence.
It is necessary for the Court to have regard to the principle of totality in determining both the total effective sentence, and the measure of accumulation and concurrency, which is appropriate in the circumstances of the case.
In determining the sentences which I am about to announce, I have taken into account the objective gravity of the offences and the subjective circumstances of the Offender, together with other factors and principles which I have outlined in these remarks. I have also applied the 15% discount allowed for the Offender's pleas of guilty together with other allowances which operate on sentence with some rounding applying to produce the actual terms to be applied.
The sentence to be imposed for the s.101.4(2) offence will comprise a head sentence of seven years and two months with a non-parole period of five years and three months.
The sentence to be imposed for the supply pistol offence, taking into account the matters on the Form 1, will comprise a head sentence of 14 years and two months with a non-parole period of 10 years. In this regard, I have made a limited finding of special circumstances having regard to the effect of accumulation of the sentences.
There ought be a period of three years and six months' accumulation as between the s.101.4(2) offence and the supply pistol offence.
The commencement date for the first sentence will be 15 February 2016. I am satisfied that the total effective sentence should comprise a minimum term of 13 years and six months commencing on 15 February 2016 and expiring on 14 August 2029 with a balance of term of four years and two months commencing on 15 August 2029 and expiring on 14 October 2033.
[20]
Amendments
21 May 2018 - Amendment to cross-references in latter half of judgment.
25 August 2023 - Publication restriction lifted.
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: 25 August 2023
As will be seen, these principles have some bearing with respect to at least one area where the parties were in dispute as to the appropriate findings of fact to be made.
At the sentencing hearing on 2 March 2018, the Court heard submissions with respect to the admissibility and relevance of certain material upon which the Crown sought to rely. In the course of that hearing, I made rulings with respect to the contested material which are contained in two judgments: R v Alameddine (No. 1) [2018] NSWSC 668 and R v Alameddine (No. 2) [2018] NSWSC 669. As a result of those rulings, documents were prepared which were tendered at the resumed sentencing hearing on 27 April 2018.
These included a document entitled "Material upon which the Crown relies in support of the argument that the firearm was provided to Alou for free" (Exhibit N). Consideration will be given to what use (if any) can be made of this document in the course of these sentencing remarks.
The primary source of the factual narrative which follows is the Statement of Facts (Exhibit M). For the purpose of making findings, I have had regard as well to a range of other documents, photographs and disks which were tendered in evidence (Exhibits A-H, J and K and Exhibit 1).
These sentencing remarks relate only to the Offender. Alou has already been sentenced by the Court for his offence. Some other persons have also been charged with related offences which are still before the Courts. I will not refer to these persons by name in these sentencing remarks. The findings and conclusions reached in these remarks arise solely from the sentencing hearing concerning the Offender and the evidence adduced at that hearing.
At the time of the supply of the revolver to Alou, the Offender was subject to a FPO made pursuant to s.73(1) Firearms Act 1996 (NSW) which had been served on him by a police officer on 28 October 2014. The Commissioner of Police had made the FPO upon the basis that the Offender was not fit, in the public interest, to have possession of a firearm.
Accordingly, the Offender was not permitted to possess any firearm as at 2 October 2015, let alone an illegal item such as the revolver.
The Offender Manifests Sympathy for Islamic State in July 2015
There was evidence at the sentencing hearing which was capable of shedding light upon the Offender's beliefs and, in particular, whether he held sympathy for Islamic State.
An incident occurred on 5 July 2015 which, the Crown submitted, pointed to the Offender's sympathy (if not support) for Islamic State.
A statement of Constable Chantelle Hannah, a constable then stationed at Merrylands Police Station, was admitted without objection (Exhibit D). In that statement, Constable Hannah outlined her contact with the Offender over a period of time. She first observed him in the course of her duties on 28 February 2015. Constable Hannah stated that, when dealing with the Offender over a period of time, "he remained charming and would often ask to marry me" and he "would also ask me questions about my personal life attempting to gather information about me" with this being "a regular occurrence" with the Offender.
Constable Hannah observed that when she first met the Offender, and for some time after that, he "wore a short shaved-like haircut and stubble on his face" without a beard. He would often be dressed in tracksuit pants and a T-shirt or a yellow high-visibility trade shirt. Constable Hannah spoke to the Offender in the Guildford area in 2015 and he was dressed in a high-visibility trade shirt and stated that he was working in a family business as a tree lopper. Constable Hannah stated that "he was charming, asking me to be his girlfriend".
At one point, the Offender approached Constable Hannah as she completed duties, seeking to strike up a conversation with her. Constable Hannah stated that she became quite concerned by his actions and behaviour and reported the incident to an Inspector of Police.
Constable Hannah stated that she "noticed a very obvious change in his appearance and demeanour in July 2015". At about 12.20 am on Sunday, 5 July 2015, Constable Hannah and another police officer were conducting a FPO search concerning the Offender in Lockwood Street, Merrylands (where he lived) at a time when he was accompanied by three other male members of the Alameddine family. Given the significance of this event on sentence, it is appropriate to set out Constable Hannah's complete account of it in her statement (Exhibit D, paragraphs 21-26):
"21. I immediately noticed Talal ALAMEDDINE to be wearing a traditional Islamic dress pant accompanied with a black bushy full beard and shaggy like black hair. He was standing away from the other males and close to his white Toyota Hilux.
22. I had never seen him wear any type of Islamic traditional dress, whether that is a robe or pant. I walked over to Talal ALAMEDDINE and he had a straight face with no expression and was standing with his hands by his side. His demeanour was extremely different, as he was no longer his charming self and he did not engage in a conversation with me as he would normally do on previous occasions.
23. He just stood staring at Constable TURNER and I, observing our movements.
24. I had a short conversation with him; however he did not seem interested in talking to me and was reluctant to answer any of my general questions. As his appearance was of great shock to me, I questioned him in relation to this.
I Said - 'What is that you are wearing Talal?'
25. As I said this, I pointed to the traditional Islamic dress pant and Talal ALAMEDDINE's demeanour changed. He appeared to become angry by this comment and answered pointing to his traditional Islamic dress pant. He screwed up his face and stared at me with squinted eyes. He fiercely grabbed onto his dress pant.
He Said - 'You respect this!'
I Said - 'And what's with the beard? That's new.'
He Said - 'My beard is for ISIS!'
26. As Talal ALAMEDDINE made this comment he began stroking his beard with his hand and he had a slight smirk on his face. During this time, there was no one close enough to Talal ALAMEDDINE and I to hear this comment made."
Constable Hannah stated that, at a later time, the Offender's appearance remained the same as it had been on 5 July 2015. He still had a full beard on that occasion, although he was not wearing a traditional Islamic dress pant. According to Constable Hannah, the Offender appeared "quite angry and uncooperative with police" during this later incident.
Constable Hannah was not required for cross-examination at the sentencing hearing. No submission was made for the Offender that her account of the incident on 5 July 2015 should not be accepted for the purpose of sentence.
It was submitted for the Offender that the events on 5 July 2015 needed to be considered against the background of the Offender's friendly association with Constable Hannah and that what happened on that day should not be taken seriously. The Crown submitted that the Offender's conduct on that day was significant to an understanding of his thought processes.
It is necessary to keep in mind Constable Hannah's previous contact with the Offender in assessing what happened on 5 July 2015. The Offender's past jocular approach to Constable Hannah was replaced by serious words and behaviour which reflected a change in the Offender as if he had been influenced in his beliefs concerning Islamic State. Neither his words nor appearance on 5 July 2015, as described by Constable Hannah, indicated that he was adopting a humorous approach to a very serious subject matter.
I accept that the Offender meant what he said on that day. His conduct indicates at least a level of sympathy for Islamic State at a time some three months before his offences on 1 and 2 October 2015.
Events from 21 September 2015 - Alou is Seeking a Firearm
From 21 September 2015, Alou made attempts to obtain a firearm which, I accept, was to be used in the commission of a terrorist act. His efforts to obtain a firearm became more intense, displaying an urgency on his part to obtain a weapon for this purpose.
At about 8.03 pm on 21 September 2015, Alou and another person met with Person X3 in Greenacre. During the conversation, Alou asked Person X3 if he could "get anything" and, as he said this, he turned his hands into the shape of a pistol. Person X3 said that during this conversation he told Alou to contact Person X2 for assistance. Person X3 said that Alou did not use the word "gun", did not disclose the reason why he wanted a firearm and "blocked off" the question when asked for the reason.
At 8.30 pm on 24 September 2015, Alou and another person met Person X2 at a chicken shop in Granville for approximately 25 minutes. During the meeting, Alou asked Person X2 to see if he could source a firearm for him. Person X2 did not ask Alou why he wanted a weapon and Alou did not respond when he asked him if he had a problem.
Events from 29 September 2015 - The Offender Becomes Involved
At 10.41 am on 29 September 2015, a person used Alou's car to drive to the Offender's house in Lockwood Street, Merrylands. That person then talked to a number of unidentified males out the front of the Offender's house.
At 2.46 pm on 30 September 2015, Alou sent a coded SMS to Person X2, providing an alternative telephone number for Person X2 to contact him:
"Shu [Hey] X2 its raban cuz this is the guy that needs workers give him a call or message him nd he will meet up with ya tonight …"
At 7.50 pm that night, Alou sent an SMS to Person X2 with the word "mad".
At 8.00 pm, Alou met with Persons X1 and X2 at a chicken shop in Granville. Person X2 told Alou that he could not source a firearm for him.
At 8.43 pm, Alou received an SMS from Person X2 with the text "?".
At 9.22 pm, Alou received an SMS from Person X2 texting the phone number for an associate of the Offender.
At 9.28 pm, Alou called and spoke to the brother of this person. Alou said he was desperate and that he wanted the person's number as he "really needs it".
Events on 1 October 2015 - Alou Contacts the Offender
At 7.44 pm on 1 October 2015, Alou called a person and confirmed a meeting time of 7.45 pm. Alou then drove to Guildford and picked up a person and both men travelled to a place in Auburn.
At 9.31 pm that night, Alou and that person attended the vicinity of the Offender's home in Lockwood Street, Merrylands.
Between 9.00 pm and 10.30 pm, Alou made five attempts to call the Offender using the mobile phone of his wife, Zeinab (Sharna) Perger ("Perger"). During this period, Perger's phone travelled between North Merrylands, South Granville and Granville West. Clearly, Alou wished to contact the Offender urgently. The purpose of his contact was for Alou to obtain a firearm from him for use in a terrorist act.
At 10.38 pm, Alou called the Offender and told him that he had attended his house earlier that evening and had seen the Offender's brother. The Offender confirmed that he was not at home and would call Alou the following day. Alou insisted that the Offender see him that night.
Between 11.03 pm and 11.38 pm on 1 October 2015, Alou and a further person conducted an exchange of SMS messages during which Alou indicated that he was stressed. That person asked Alou "What happened with the Gucci bag man…" and "did he disappear". Alou replied with the following message:
"Yeah no good bro got to wait until next week then we can go fishing inshallah [God willing] but I told him nah too long u no we haven't went fishing for ages so might as well go asap so I sacked him bro."
After a further exchange of text messages, Alou and this person sent the following messages:
ALOU: Idk [I don't know] what to do akhi [I don't know what to do brother]. That's why allah says to verify [That's why God says to verify].
OTHER: I reckon sleep and then start fresh tomorrow inshallah [God willing].
OTHER: Cause its jummah [Friday] and maybe we can go fishing tomorrow early in the morning.
ALOU: Yeah after fajr [dawn prayers] im not gonna go sleep im gonna kick back but idk who to kick back with u no.
OTHER: Mmm have you spoke to the Persian.
ALOU: Which I akhi [brother].
OTHER: Better to speak in person cause this messaging no good, tomorrow morning I'll call you … Just sleep and tomorrow we will talk … And delete these messages."
Events on 2 October 2015 - Contact Between the Offender and Alou Leading Up to Supply of Revolver
At 6.51 am on 2 October 2015, Alou sent two SMS messages to Person X3 asking if he was there. Person X3 did not respond.
At 8.04 am that day, Alou tried to call Person X3, but he could not get through. At 10.15 am, Person X3 messaged Alou and said "Yea akhi [Yea Brother]".
At 9.21 am, Alou and Perger had a conversation in his car in which the following was said:
"ALOU: Listen.
PERGER: What.
ALOU: (indistinct). Look at me.
PERGER: I'm listening - [silence] - What.
ALOU: [indistinct] it's dangerous stuff. Forget about it.
PERGER: I feel like Raban I don't know what the hell you're up
to but.
ALOU: Shut up 'yalla' bye.
PERGER: If you do something stupid 'inshallah' you get caught.
ALOU: 'Astaghfirullah' [Forgive me God] bro don't you say that you fuck.
ALOU: [indistinct] What's stupid hows that stupid?- Alright lets do it - I'm only doing this because - whatever I do Subhanallah [Allah] he'll accept it.
PERGER: alright [indistinct].
ALOU: It's gotta be done but."
Between 9.38 am and 10.17 am, two unanswered calls were made between Alou and the Offender.
At 9.58 am Farhad entered Parramatta Mosque carrying a Nike backpack on his back.
At 10.17 am, the Offender sent a message to Alou saying "Salam alakum [peace be unto you] bro what's happening come around".
At 10.18 am, Alou sent a message to the Offender "Wa alaykum salam [and unto you be peace] akhi [brother] im in Guildford ill msg wen im outside just wanna come give salams [greetings] to ya".
At 10.29 am, Alou sent a message to the Offender "Asalamu alaykum in outside". The Offender replied to Alou saying "Wa alukum salam [and unto you peace] Yallah [I'm waiting/Let's go] cuz".
Alou Travels to the Vicinity of the Offender's House
At 10.31 am, Alou parked his car in front of the property next door to the Offender's house in Lockwood Street, Merrylands. He then left his vehicle and walked to the vicinity of a nearby property, where he moved out of sight.
At 10.41 am, Alou returned to his vehicle in Lockwood Street, Merrylands and then drove home.
At 10.56 am, Alou received a call from Perger and they discussed "WhatsApp" and getting in contact with an associate using Perger's phone. Alou told her:
"That's why I want to call him to tell him that I can't go after Jummah [Friday prayers] cause I've got something to do … that's why I want to speak with him."
At 11.05 am, Perger and Alou had a telephone conversation during which he said he has "… something to do after praying".
Alou Speaks to Farhad at the Parramatta Mosque
At 11.31 am, Alou entered the Parramatta Mosque and sat with Farhad. Alou, his brother (Hozan) and Farhad spent the next two hours in each other's company and appeared during this time to be engaged in conversation.
At 11.55 am, Alou received a call from Perger. Alou said to Perger that he was early for Friday prayers and "so he kicking back with the brothers".
At 12.21 pm, another person arrived at the Parramatta Mosque by vehicle. That person parked his vehicle next to Alou's vehicle at the front of the building and entered the Parramatta Mosque.
Further Contact Between Alou and the Offender
Between 12.58 pm and 1.20 pm, the Offender attempted to make six calls to one of Alou's services from a public phone in Rees Street, Mays Hill. It is noteworthy that the Offender was using a public phone (and not his own) for these attempted calls. As will be seen, the Offender used the public phone again that afternoon to communicate with Alou. The subject matter of their discussions was such that, in the Offender's mind, a type of antisurveillance measure should be employed.
At 1.04 pm, Alou and another person spoke to each other in the prayer hall while Farhad was present nearby.
At 1.10 pm, Alou received a call from the Offender made from the Rees Street public phone. Alou and the Offender had the following conversation:
"ALOU: Yes. Hello.
OFFENDER: Hello.
ALOU: Hello?
OFFENDER: Yeah, how you going, mate?
ALOU: Yeah, who's that?
OFFENDER: Yeah, yeah, it's, ah, it's me.
ALOU: Oh, yeah, mate, yeah. How are you, brother?
OFFENDER: Well, yeah. Good, good, man.
ALOU: Um, tell me, how you been?
OFFENDER: No, good, good, man, I'm just fuckin' - I'm just had - had a job on and I want you just come quote it for me, man.
ALOU: Yeah, yeah. Ah, where brother where at brother?
OFFENDER: You know ... [indistinct] ... - - -
ALOU: Hey?
OFFENDER: I'm now.. I'm at - I'm at my girlfriend's house. She lives right in front of Jones Park. You know Jones Park?
ALOU: Jones Park? Is that - - -."
Subsequently, there were two unanswered calls to Alou also made by the Offender from the Rees Street public phone. At 1.17 pm, Alou sent the Offender a text message saying "How u been bro".
At 1.18 pm, another unanswered call was made by the Offender from the Rees Street public phone to the service used by Alou.
At 1.19 pm, Alou received a call from the Offender from the Rees Street public phone and told him to meet him at Jones Park, off Burnett Street, described as the place where "you play grade sport". Alou agreed to meet the Offender at the park in not less than 15 minutes. Alou took this call when he was near the Parramatta Mosque in Marsden Street, Parramatta. He stepped away from the group of persons he was with to speak to the Offender (this is depicted on Exhibit F). After the call finished, Alou walked to where another person was standing with two other unknown males.
At approximately 1.23 pm, Alou took that other person some metres away from the group and whispered something in his ear. That person and Alou then stood with the males for about four minutes before walking to their respective vehicles.
Alou and Another Person Meet with the Offender at Jones Park
At 1.30 pm, another person walked from his car towards Alou's vehicle before he returned to his own vehicle. That person then got into his vehicle and left the Parramatta Mosque, and turned right onto Marsden Street in a southerly direction towards Merrylands.
That person was followed by Alou who was driving a white Toyota Camry sedan.
After the flurry of telephone calls and attempted telephone calls between Alou and the Offender, the men were finally heading to Jones Park for a face-to-face meeting.
At approximately 1.35 pm, the other person and Alou arrived at the public car park at Jones Park (the movement of the vehicles is recorded on Exhibit F). Alou then walked across a grassed area where he met the Offender who was carrying a black satchel bag across his body and a Foot Locker plastic shopping bag. The Offender and Alou were in conversation for about 15 seconds (MFI1).
It should be pointed out that, throughout these events, on 2 October 2015, Alou was dressed in a distinctive long black robe. This manner of dress itself would have been meaningful to the Offender in his dealings with Alou that afternoon.
At about 1.40 pm, the Offender and Alou walked to Alou's vehicle and got into it. Alou drove and the Offender sat in the front seat next to him. During the journey, a conversation between the two men was partially recorded by way of electronic monitoring.
Different versions of this recorded conversation were proposed on behalf of the Crown and the Offender. The competing versions are set out in paragraph 61 of Exhibit M. A similar controversy arose with respect to this conversation for the purpose of sentencing Alou. In R v Alou (No. 4), I set out the submissions and my findings with respect to this issue at [94]-[104] (with the Offender being referred to as "TA"):
"94 At about 1.36 pm, the Offender and TA entered the Offender's vehicle. The Offender drove with this person sitting next to him in the front seat. During the course of the road journey to Merrylands, the Offender and this person had a conversation which was partially recorded by surveillance device. Competing submissions were made as to what exactly was said in this conversation. The Court was provided with different versions of what was said prepared by the Crown, the Offender's legal representatives and the legal representatives for TA who has a separate sentencing proceeding with respect to charges brought against him.
95 The Court was provided, as well, with an electronic recording of the conversation together with visual surveillance device footage which was said to place this conversation in context.
96 The Crown submitted that in the course of this conversation, TA said 'I brang the 30 cal bro'. The Crown submitted that this conversation, and the surrounding activities of the Offender and this person, should give rise to a finding that he had brought a firearm to supply to the Offender which was rejected, leading to TA then obtaining the firearm ultimately provided to Farhad Mohammad which was used to shoot Mr Cheng.
97 The version provided by the Offender's legal representatives (part Exhibit J) asserted that what was said at this point by TA was 'I prayed the third in town bro'. The version provided by the legal representatives for TA (MFI7) indicated that the words were 'I prayed the [indistinct] what about you?'.
98 It is not necessary to set out in detail the competing arguments or the evidence which is pointed to in support of these arguments. I have listened to the recording and have viewed the visual surveillance footage which is in evidence. I have considered the various proposed transcripts advanced by the different interests affected. I have had regard to the submissions made by the Crown and Senior Counsel for the Offender on this issue. In addition, the legal representatives for TA provided a written submission on this issue (with the agreement of the Crown) which I have considered. This was a reasonable course given that a similar controversy was to arise in the separate sentencing hearing concerning TA.
99 Having considered all the evidence and submissions on this point, I am not satisfied beyond reasonable doubt that TA said 'I brang the 30 cal bro'. It is simply not possible to discern with clarity the precise words spoken at that point in the conversation.
100 I have had regard to the evidence generally to determine whether the Court can be satisfied beyond reasonable doubt that this aspect of the events involved the supply by TA of a firearm, which was rejected by the Offender, before the firearm ultimately provided and used was handed over to the Offender. For this purpose, I have considered the footage depicting the movements of the Offender, TA and others in vehicles or meetings in public places on the afternoon of 2 October 2015.
101 Having considered all the evidence and submissions which bear on this issue, I am not satisfied beyond reasonable doubt that the findings sought by the Crown can be made. What can be said to the requisite standard is that the movements and conversations of the Offender, TA and others related to the supply of the firearm which was ultimately used to shoot Mr Cheng. The conversations between persons involving the use of oblique language and the physical meetings between persons in unusual places were designed to minimise surveillance by the authorities.
102 The disputed conversation clearly involved (on all versions) the Offender and TA discussing 'the big one' with it being said at one stage 'this is bad man'. It is clear that this was not an innocuous conversation concerning prayer meetings nor were the convoluted movements of the Offender, TA and others capable of innocent explanation.
103 These activities were part of a plan for the supply of a firearm by TA to the Offender, which was perfected when TA supplied the Offender with the loaded Smith & Wesson .38 revolver. Beyond that, I do not think any more precise and adverse finding as sought by the Crown can be reached.
104 Events which followed the disputed conversation reinforce a finding that the whole process of activities between the Offender, TA and other persons was associated with the supply of a firearm to the Offender."
In submissions made on behalf of the present Offender, I was invited to make the same findings as those made when sentencing Alou. The Crown did not advance a contrary submission. Accordingly, for the purpose of sentencing the present Offender, I make the same findings as those set out in the above extract from my sentencing remarks with respect to Alou.
Whilst Alou and the Offender were travelling in the vehicle, the other person followed them in his vehicle in a convoy to Merrylands.
Alou and the Offender at Warwick Road, Merrylands
At about 1.42 pm, Alou and the other person parked their vehicles on Warwick Road, Merrylands, parallel to Lockwood Street (the street where the Offender lived). The Offender and Alou got out of Alou's car and walked to the front of the vehicle and stood on the footpath where they appeared to be engaged in conversation for some six minutes and 42 seconds (MFI1). The other person parked his car directly behind Alou's car (with these events being depicted on Exhibit F).
At 1.49 pm, Alou and the Offender returned to Alou's vehicle. Alou opened the driver's side door of his vehicle while the Offender collected a black satchel bag, a Foot Locker brand plastic shopping bag and a black plastic shopping bag from the front passenger side of the vehicle. Alou closed the driver's door and walked to the driver's side front door of the other person's vehicle and leaned in the window towards that person and appeared to have a conversation with him.
At around the same time, the Offender was seen carrying this assortment of bags (which he had removed from Alou's vehicle). He crossed Warwick Road, turning right into Merrylands Road and then heading into Lockwood Street, Merrylands (with these events being depicted on Exhibit F).
Alou and the Other Person Travel to Merrylands Oval
At 1.50 pm, Alou and the other person departed Warwick Road, Merrylands and travelled to Merrylands Oval in Burnett Street, Merrylands. On arrival, they parked parallel to each other and remained seated in their respective vehicles (with this and the following events being depicted on Exhibit F).
At 1.53 pm, Alou (whilst sitting in his car) said to the other person:
"I need some help. You know I told you when he's going to thing, did I tell you where [indistinct]. But it will affect, the brother, Parra, affect the masjid [Mosque], mine, it will affect me, do you know anything because Allah [indistinct] I asked the brother I told him because I gotta [indistinct] … leave it to me inshallah [God willing] because, so it doesn't come back, cause the brother's got heat and everything he's got a lot of heat".
The other person commented in response "Can't get involved but". Alou then said "I know he said, ombah Allah, I don't know that's why I'm like leave it to me. I'll do something. I'll figure it out, inshallah. The thing is it's hard".
Between 1.56 pm and 2.04 pm, Alou and the other person got out of their vehicles and walked into the park where they appeared to talk for approximately five minutes.
Between 2.04 pm and 2.07 pm, Alou and the other person returned to their vehicles and both men stood together at the rear of the other person's vehicle and appeared to continue their conversation.
The Offender Arrives at Merrylands Oval on a Bicycle
At 2.08 pm, the Offender entered Merrylands Oval car park on a bicycle and met with Alou. The Offender was wearing the same sports clothes and this time had a black satchel bag over his shoulder. The Offender and Alou engaged in conversation in the car park on two occasions for a total of about five minutes (MFI1). The other person remained near the rear of his vehicle within close proximity to the Offender and Alou.
I pause at this stage to note that Alou appears to have been tight-lipped in his dealings with Person X2 and Person X3 concerning the purpose for which he needed a firearm. Unlike Person X2 and Person X3 who had rebuffed Alou's request for a firearm, the Offender was ready, willing and able to supply the revolver to him. I am satisfied that Alou did reveal at least some information to the Offender in his dealings with him on 2 October 2015 as to the use expected to be made of the revolver which the Offender supplied to him.
At 2.12 pm, the Offender left the car park on his bicycle. Alou and the other person drove from Merrylands towards Wentworthville in a convoy (with the other person following Alou).
At 2.12 pm, Alou received a phone call from Perger, who asked him "Did you do what you had to do?". Alou denied doing anything other than attending the Parramatta Mosque and being with the other person. Specifically, Alou said:
"No, I just-ah, no, I was just - I didn't do nothing. I had nothing to do. I was muckin' around with you, bro ... I had nothing to do in the first place. I just-I was just at Parra Mosque, ah, just, you know, just read a few verses read some Koran and that's it …"
At 2.14 pm, Alou called a further person and told him he was with the other person. Alou and the further person then made arrangements for later that evening to "kick back".
Alou Travels to the Vicinity of his Home in Wentworthville
At 2.17 pm, the other person and Alou parked their cars in the vicinity of the Alou family home in Lane Street, Wentworthville.
At 2.40 pm, Alou walked to the other person's vehicle and retrieved an object from the front passenger side of the car. Alou then entered the unit block in which his family and he resided. Alou and the other person then walked towards the vicinity of the neighbouring unit complex in Lane Street. After standing in front of this unit complex for a short time, the other person and Alou entered their respective vehicles.
Alou Returns to Merrylands Oval for Another Meeting with the Offender
At 2.45 pm, Alou drove his vehicle from Lane Street to the car park at Merrylands Oval. The other person remained at Lane Street, Wentworthville as Alou drove away.
At 2.55 pm, the Offender returned to Merrylands Oval car park once again by bicycle. Whilst holding the bag, he walked up to the driver's door of Alou's car and leant into the window. The two men were in conversation for one minute and 24 seconds (MFI1). The Offender removed a white plastic bag from the front driver's window of Alou's car. Both men left the car park shortly after (with these events being depicted on Exhibit F).
At some point between the first meeting with Alou and the Offender at about 1.35 pm and the final meeting at 2.55 pm, a loaded .38 special calibre Smith and Wesson model British service revolver was provided by the Offender to Alou. The revolver was not licensed in Australia and there are no records that it had been imported into Australia legally.
From the time they met at 1.28 pm on 2 October 2015 until they parted finally at 2.55 pm, Alou and the Offender were together (and frequently in conversation) at different locations at Jones Park, Warwick Road in Merrylands and Merrylands Oval for a total period of 13 minutes and 21 seconds (MFI1).
I am well satisfied that, during these protracted conversations at various locations, the Offender learned a good deal about what was to happen with the revolver which he provided to Alou, a radicalised and extremist supporter of Islamic State who was moving single-mindedly to the commission of a terrorist act that day using the revolver.
Alou Meets with Farhad at Parramatta Mosque and Hands Him the Revolver
Having acquired the revolver from the Offender, Alou moved quickly to give it to the proposed terrorist attacker, the 15-year old Farhad. I am satisfied to the criminal standard that the revolver was loaded when the Offender handed it to Alou. There was no time nor opportunity for Alou to obtain ammunition for the revolver from any other source that day. It was the Offender who provided the loaded weapon ready for immediate use in a terrorist act.
At 3.05 pm, Alou arrived at the Parramatta Mosque where he met with Farhad (this is depicted on Exhibit F).
At 3.34 pm, Hozan (Alou's brother) and Farshad (Farhad's brother) arrived at the Parramatta Mosque and met with Alou and Farhad.
At 3.40 pm, Alou, Farhad and four other men prayed together inside the Mosque. After praying, the men sat together and talked.
At 3.46 pm, two of the men left the Mosque, leaving Farhad and Alou together.
At 3.48 pm, Alou determined that the time had come to give the revolver to Farhad. Alou left the Parramatta Mosque and walked to his vehicle, which was parked alongside the Parramatta Mosque entrance. Alou got into the front driver's seat and remained there for a short time. Alou got out of the vehicle and appeared to be holding or adjusting something in his left hand. He then walked towards the entrance to the Parramatta Mosque, holding his left hand under his robe (this is depicted on Exhibit F). The item being held by Alou under his robe was the revolver.
At 3.54 pm, Alou called Perger and told her that he was about to leave the Parramatta Mosque.
At 3.58 pm, Alou and Farhad were recorded (on the Parramatta Mosque CCTV) entering the female only prayer hall together (with this being depicted on Exhibit F). Farhad was carrying a black Nike brand backpack. As they entered the female prayer room, Alou removed his mobile phone from his right pocket and placed it on a shelf immediately outside the female prayer hall. The two men remained alone together in the female prayer room for about seven minutes. It was during this period that Alou handed the revolver to Farhad.
At 4.04 pm, Alou left the female prayer room by himself. After collecting his mobile phone, he left the Parramatta Mosque and returned to his vehicle whilst using his mobile phone.
Farhad Leaves Parramatta Mosque and Walks Towards the NSW Police Headquarters in Charles Street, Parramatta
At 4.06 pm, Farhad entered the main prayer hall and commenced praying. After praying, Farhad entered another section of the Parramatta Mosque and changed into a black "dishdasha" (a long black robe traditionally worn by Arab men).
At 4.10 pm, Alou got into his vehicle (parked near the entrance to the Parramatta Mosque), turned his vehicle around and reverse parked into the same car space.
At 4.12 pm, Alou drove away from Parramatta Mosque travelling along Marsden Street into George Street, and then into Charles Street.
At around this time, Farhad left the Parramatta Mosque. As he exited, he looked up at the CCTV camera which was located near the entry/exit and held up his right hand with his index finger raised. This one finger salute has become associated with Islamic State and is a reference to the "tawheed" ("there is no God but Allah").
At 4.13 pm, Farshad Mohammad called Alou and asked about the whereabouts of his brother, Farhad. Alou replied that he had left Farhad in the Parramatta Mosque half an hour before and that he did not know where he was. Alou said he was on his way to meet his wife.
At 4.14 pm, Alou drove past NSW Police Headquarters in Charles Street. Alou had never before been observed travelling this route after leaving the Parramatta Mosque. The fact that he took this route that day indicated awareness on his part that Farhad was to carry out a terrorist attack in that vicinity.
At 4.24 pm, Farhad walked in a southerly direction along Charles Street, Parramatta. He paced back and forth along the footpath parallel to the main entry doors of the NSW Police Headquarters. Farhad walked up behind several people who had left the Police Headquarters building before turning away and walking back to the main doors of that building.
At 4.30 pm, Curtis Cheng walked out of the NSW Police Headquarters. Farhad fell in behind him and walked until he was very close and then shot Mr Cheng to the back of the head. Mr Cheng was killed instantly and fell to the ground.
After murdering Mr Cheng, Farhad strode back and forth past the entrance to the NSW Police Headquarters. He then stopped and stood on the footpath facing the entrance and fired directly at the building and in the air a number of times, while yelling "Allahu-akhbar" ["God is Greater" - meaning God is greater than anything or anyone else]. This alerted two Special Constables on duty inside the building. They left the building and, in an exchange of gunfire, Farhad was shot dead.
When Farhad's clothes were searched, located inside a pocket of the robes he was wearing was the handwritten note referred to earlier in these remarks.
Communications After the Death of Mr Cheng
Between 5.17 pm and 5.28 pm, Alou tried to call a person unsuccessfully three times.
At 8.56 pm, Alou and Perger heard a commercial radio station broadcast a statement by New South Wales Police Commissioner Scipione in relation to the murder of Mr Cheng. Perger said "good" and, as the statement continued, she went on to say "Jobs done then". Alou could be heard speaking and humming in the background.
The Offender's Further Firearm Offences on 6 October 2015
In the days following 2 October 2015, there was saturation media publicity concerning the terrorist attack carried out by Farhad on that day in which Mr Cheng was murdered and Farhad himself was killed. I am well satisfied that the Offender became aware that it was the revolver supplied by him to Alou which had been used as the murder weapon. Despite this, and the continuing operation of the FPO, there was no reluctance on the Offender's part to involve himself criminally with firearms. The horrific events of 2 October 2015 had not deterred him in this respect.
At 9.20 pm on 6 October 2015, the Offender possessed a semi-automatic pistol (or an imitation thereof) on the footpath outside his home in Merrylands whilst several unidentified males watched on. These are the second and third offences on the Form 1 to be taken into account on sentence for the supply pistol offence. The Offender is seen on CCTV footage to be handling the pistol in conjunction with a cloth (Exhibits H and J). I am satisfied that the Offender was cleaning and handling the pistol with the cloth.
The CCTV footage recovered from the Offender's house reveals him in the company of five or six men on the footpath outside his home for an extended period. The Offender handles the pistol (in a cloth) for about two minutes and 30 seconds before placing the cloth containing the firearm in the back of a utility parked outside the house. The fact that the Offender was handling a pistol in this relaxed fashion in a public place outside his home sheds light upon his attitude to offending of that type.
The Offender was subject to a FPO so that he was prohibited from possessing any firearm, let alone a pistol which involved serious further criminality. The existence of the FPO clearly had no deterrent effect on the Offender. This was occurring just four days after the revolver supplied by the Offender to Alou had been used to murder Mr Cheng in a terrorist attack.
The Offender's conduct on 6 October 2015 manifests a lack of concern about the part he had played in the supply of a murder weapon used in a terrorist attack which had dominated the news since 2 October 2015. For a period exceeding 40 minutes, the Offender and his friends were laughing and talking amongst themselves on the footpath whilst the cleaned pistol sat neatly wrapped in a cloth in the back of the utility.
It is difficult to understand how a person in the Offender's position, who had contributed to a murderous terrorist act, could be acting in such a nonchalant manner just days after in circumstances where he was again acting criminally with respect to a firearm and in defiance of the FPO.
Search of the Offender's Premises on 7 October 2015
On 7 October 2015, search warrants were executed at various addresses including the Offender's premises at Lockwood Street, Merrylands and Alou's premises at Lane Street, Wentworthville. During the search of the Offender's premises, it took the occupants of the premises several minutes to clear the premises.
Located within the cavity at the Lockwood Street premises were parts of a severely damaged iPhone 6, as well as a SIM card linked to a telecommunications service which was that used by the Offender to communicate with Alou on 1 and 2 October 2015.
Forensic examination of the manhole to the roof cavity identified two separate left thumb prints and one right thumb print that matched the Offender. Further, a left thumb print on the smashed phone inside the roof cavity also matched that of the Offender.
The Offender was arrested on 15 October 2015 and has remained in custody since that date.
Before moving to consider the particular factual issues under this general heading, it is appropriate to say something about the charges to which the Offender has pleaded guilty. His pleas of guilty, of course, constitute admissions of the elements of those offences: GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at 211 [30]. Any facts beyond those necessarily involved as an element of the offence must be proved by evidence or be admitted formally or informally: GAS v The Queen at 211 [30].
What was said in the past concerning the need for proof of contested facts by admissible evidence (cf Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 605) must now be considered in the context where s.4(1)(d) and (2) Evidence Act 1995 state that that statute does not apply to sentencing proceedings without a direction being given to that effect. That said, it must be kept in mind that the requirements of proof laid down in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 are informed by principles of fairness: Filippou v The Queen at 73 [72]. Where objection is taken to the tender of material adverse to an offender, a sentencing court should only act upon it if it is cogent evidence which may be tested by the offender before any weight could be given to it to found a finding adverse to an offender.
Consistent with the principles referred to earlier in these remarks, if there are features of the offence which are relied upon as aggravating factors, then it is necessary for those matters to be established to the criminal standard beyond reasonable doubt. If there are factors relied upon as mitigating features, then the onus of proof lies upon the Offender to establish such matters to the civil standard on the balance of probabilities.
The Offender's pleas of guilty to the two offences on the indictment and the other offences to be taken into account on sentence constituted admissions by him of the essential elements of those offences. It remains a matter for me, as the sentencing Judge, to make findings of fact by reference to evidence adduced by the parties at the sentencing hearing. No oral evidence was adduced at the sentencing hearing by or on behalf of the Crown or the Offender. The matters in dispute fall for determination by reference to documentary, photographic and electronic evidence tendered at the sentencing hearing.
The Crown relied with respect to these issues upon a combination of direct and circumstantial evidence. I will refer to the particular areas of evidence and comment upon them before expressing my ultimate conclusion on the issues which have been contested.
It is the case that there is no electronic evidence in which the Offender expressed radical or extremist views supportive of Islamic State. Operation Appleby was on foot for a considerable period of time and the Offender effectively came on the scene and was detected in his activities on 1 and 2 October 2015. The context of the Offender's interaction with Alou related to Alou's attempts to obtain a firearm, which had been unsuccessful with respect to other persons he had contacted before he was put in touch with the Offender.
The Offender's position may be contrasted with that of Alou who, on more than one occasion, made florid and gross statements of support for Islamic State and its aims both before and after the murder of Mr Cheng on 2 October 2015.
However, the evidence does disclose a number of features which bear upon this issue.
Firstly, the Offender's interaction with Constable Hannah prior to 5 July 2015 appeared to have been friendly and humorous, but his appearance, manner and words appeared different to Constable Hannah on that day. As noted earlier, the statement of Constable Hannah was tendered by the Crown without objection and the Offender has not given evidence on this issue.
I am satisfied beyond reasonable doubt that the events described by Constable Hannah occurred on 5 July 2015. The Offender's dress and his words spoken to Constable Hannah point to a change in attitude on his part towards Constable Hannah which was reflective of a level of sympathy for a more fundamentalist view of Islam on the part of the Offender in the form of Islamic State. Although it was submitted that it may have been that the Offender was not acting seriously on this occasion towards Constable Hannah, I detect no humour in the account provided by the police officer as to what occurred. For the Offender to act in this way concerning a very serious topic supports the view that the Offender actually held those beliefs at that time. Although this is but one piece of evidence on this issue, it assists an understanding of the thinking of the Offender as at July 2015.
Secondly, the communications between Alou and the Offender on 1 and 2 October 2015 shed some light upon the thinking of the Offender. After unsuccessful attempts by Alou to contact the Offender on the evening of 1 October 2015, Alou finally spoke to the Offender by telephone that evening.
An exchange of messages occurred between the two men between 10.18 am and 10.29 am on 2 October 2015 using Arabic greetings. Alou travelled to the Offender's house in Merrylands at 10.31 am. The Offender made several unsuccessful telephone calls to Alou between 12.58 pm and 1.20 pm with the Offender making the calls from a public telephone. Eventually, the two men spoke with the Offender once again using the public telephone for this purpose. At 1.19 pm, the Offender telephoned Alou again using the public telephone and arranged a meeting at Jones Park. The Offender used the public telephone because of the clearly criminal subject matter of their conversations.
Alou met the Offender in Jones Park at about 1.35 pm and, by 1.40 pm, the Offender and Alou were travelling in Alou's vehicle to Merrylands. The conversation between the two men in the vehicle was the subject of dispute and I have referred earlier to the findings which I made in that respect when sentencing Alou. Although the precise details of what was being said in that conversation were not such as to allow a finding to be made as sought by the Crown, I found that the conversations between the two men, involving the use of oblique language and physical meetings between them in unusual places, were designed to minimise surveillance by the authorities. I noted that the disputed conversation between the two men in Alou's vehicle included the men discussing "the big one" with it being said at one stage "this is bad man". I accept that this was a conversation between two men with respect to the supply of a firearm by the Offender to Alou.
The fact that the Offender was prepared to speak to Alou in that way in the vehicle conversation supports the suggestion that conversations between the two men in open areas (such as parks or a street) were likely to involve a level of disclosure by Alou with respect to what was on foot at that time - being his strong desire to obtain a firearm to be used in a terrorist attack. As I noted earlier, unlike Person X2 and Person X3, the Offender was a willing supplier of a firearm to Alou and it requires no substantial leap to find that their conversations turned, to some degree, to the use to be made of the revolver.
Discussions took place between the Offender and Alou at about 1.42 pm in Warwick Road, Merrylands and then at Merrylands Oval when they met again at 2.08 pm, before the Offender departed and then returned with further interaction between the two men at Merrylands Oval at 2.55 pm, by which time the revolver had been supplied by the Offender to Alou.
What is known up to the point of these meetings and conversations on 2 October 2015, and the context in which they occurred that day, permits an inference to be drawn concerning the subject matter of the conversations taking place between the two men. Supply of the revolver by the Offender could have occurred quickly and simply by the handing over of the item to Alou without any accompanying conversation, let alone the protracted and circuitous process of meeting in different places over a period of about one-and-a-half hours, with the Offender using differing means of transport (including a bicycle) to get to the meetings.
It is clear that the Offender was not averse to having direct conversations with Alou, albeit using some antisurveillance measures by use of a public telephone and then having the discussions only in open spaces in parks or a street, apart from the one conversation which was recorded when the two men were in Alou's vehicle travelling to Merrylands.
It is not appropriate to look at each piece of evidence separately for the purpose of fact finding. In my view, the inference ought be drawn that, in the course of these interactions on 2 October 2015, Alou disclosed to the Offender that the revolver was to be used for the purpose of a terrorist attack.
In reaching this conclusion, I have kept in mind the almost single-minded or fixated purpose which Alou sought to achieve that very day, and the unlikelihood that he would withhold some features of what was planned in his various meetings and conversations with the Offender which extended for some 13 minutes and 21 seconds. As mentioned earlier, if the mere supply of the revolver was what was to occur, this could have been achieved by way of a very short meeting, not accompanied by conversations and further meetings at different locations.
I have considered the material upon which the Crown seeks to rely with respect to the argument that the Offender supplied the revolver to Alou for free (Exhibit N). At the outset, I note that none of the material contained in this document involves admissions by the Offender or conduct by him which operates directly against him on this issue. The material gathered in Exhibit N involves statements or acts by other persons made in the absence of the Offender.
On its face, this material would not be admissible at a trial of the Offender if objection was taken. However, the rules of evidence do not apply automatically to sentencing proceedings. For reasons disclosed in the judgments given by me on 2 March 2018, I was prepared to allow this material to be placed before the Court by the Crown. The question now is what use can be made of this material in sentencing the Offender.
With respect to the question whether the revolver was supplied for free or on payment to the Offender, the material does not provide a clear and satisfactory answer. The evidence for the purpose of sentencing Alou indicated discussions by him with others of obtaining money apparently for the purpose of purchasing a firearm. There is no evidence that money was paid. The material on this aspect is simply inconclusive.
The Crown argues that there may have been a plan to pay for the revolver but that, in the end, the Offender supplied it for free. I do not think the evidence permits a finding to that effect to be made applying the criminal standard of proof. The position is not advanced materially, reliably and adversely to the Offender by things other people are alleged to have said on other occasions in the absence of the Offender (such as Exhibit N, paragraph 14). The Crown did not call any witnesses at the sentencing hearing to give evidence of the matters contained in Exhibit N.
There is other evidence before the Court concerning the capacity of the Offender to obtain firearms. He possessed a semi-automatic handgun (or an imitation thereof) outside his house on 6 October 2015 in the circumstances referred to earlier in these remarks. His conduct on that occasion involved a type of flagrant display of the firearm to his associates on the footpath outside his house.
The result is that there is no direct evidence which is truly probative against the Offender that the revolver supplied on 2 October 2015 was provided for free. Likewise, there is no direct evidence from the Offender that the revolver was supplied on payment of money. As will be seen, the Offender said something to that effect to Dr Olav Nielssen, psychiatrist, but no weight should be given to that evidence in the absence of evidence from the Offender.
One is left with the broad proposition that the Offender was a person who could lay his hands on firearms and that conduct of that type (it might be thought) is usually undertaken for financial gain. The end position is that the Court is not able to make a finding one way or the other on this aspect.
I return at this point to the elements of the offences to which the Offender has pleaded guilty. By his plea of guilty to the terrorist offence under s.101.4(2) of the Criminal Code, the Offender admitted that, between 1 and 2 October 2015, he did intentionally possess the revolver that was connected with the preparation for a terrorist act and that he was reckless as to the connection of the revolver to the preparation for a terrorist act.
The Offender's admission of the element of recklessness involved an admission by him that he was aware of a substantial risk that the revolver would be used in the commission of a terrorist act and that, having regard to the circumstances known to him, it was unjustifiable for him to take that risk: s.5.4(1) Criminal Code. The Offender's plea of guilty to this charge did not involve any admission of intention or knowledge on his part however, if there was evidence of intention or knowledge, that could satisfy the element of recklessness: s.5.4(4).
Properly understood then, the Offender's plea of guilty admits recklessness, but does not admit intention or knowledge on his part as to the use to which the revolver was to be put for a terrorist purpose.
If the Court found that the Offender was, as at 1 and 2 October 2015, at least sympathetic to the extremist views of Alou (being supportive of Islamic State), then this aspect would elevate the objective gravity of the Offender's offence under s.101.4(2) Criminal Code. This would be so even if (as is the case) the Court is not able to make a finding that the revolver was supplied for free or for payment.
With respect to the supply pistol offence, the offence under s.51(1A) Firearms Act 1996 (NSW) does not require any knowledge or recklessness on the part of the supplier as to the purpose to which the pistol was to be put. An offence under this section would be committed even if the person supplied the pistol to an unauthorised person who intended merely to add the pistol to his firearm collection. However, if the supply of the pistol was to be used for a criminal purpose, and the supplier knew or believed or was reckless as to this aspect, then the objective gravity of the s.51(1A) offence would be elevated by this additional feature as to which the Crown bears the onus of proof.
Having considered (at some length) the evidence and submissions made with respect to these issues, it is appropriate that I express my findings concerning these matters.
Firstly, I am satisfied that the Offender was known to be a person with access to firearms, and a preparedness to supply firearms, as at the time he supplied the pistol to Alou on 2 October 2015. Alou had been searching for a person who was prepared to provide him with a firearm for the purpose of the carrying out of a terrorist act. He had drawn a blank with two other persons, but was put in contact with the Offender. The capacity of the Offender to supply the revolver on 2 October 2015, and his possession of another firearm just four days later, point to a capacity on his part to possess and deal in firearms.
Secondly, I am satisfied that the Offender had (as at 1-2 October 2015) at least some sympathy for the fundamentalist religious views of Alou. The unchallenged evidence of Constable Hannah with respect to the events on 5 July 2015 is significant in this respect and cannot be placed to one side in the manner sought by the Offender. The Offender was demonstrating overtly, support at that time for Islamic State.
However, as I have said, the evidence does not permit a finding that the Offender supplied the revolver to Alou either for free or for payment of money. It might ordinarily be thought that illegal firearm suppliers would seek payment (either in advance or on supply) where the supply of a firearm takes place. The evidence does not demonstrate that payment was made before or at the time of the supply. Nor, however, does the evidence demonstrate that no payment was made to the Offender at all for his supply of the revolver.
What do these conclusions lead to in the circumstances of this case?
The Offender was prepared to supply a revolver to Alou in circumstances where he had a strong inkling (at least) from his conversations with Alou, that the loaded pistol was to be used very soon thereafter in a violent attack in Sydney committed for terrorist purposes. This was not a case where, for example, a component for a bomb was supplied which would involve significant further work before a terrorist act could be committed or ammunition was supplied which could only be used if a firearm was located as well.
Rather, the Offender supplied to Alou a loaded revolver which was capable of being used immediately, and was actually used less than two hours later to murder Mr Cheng on the street in Parramatta. I am satisfied that, by the time that he supplied the revolver to Alou, the Offender had a good idea that the firearm was to be used soon thereafter for a terrorist attack in Sydney committed in the name of Islamic State. The Offender had acquired this level of understanding from his various discussions with Alou at different locations undertaken on 2 October 2015.
A combination of sympathy for Alou's cause, and the pragmatic activities and motivations of a firearm supplier, came together for the Offender to supply the revolver to Alou with a solid idea on his part as to what was to be done with it soon after.
I am satisfied beyond reasonable doubt that findings to this effect should be made. These findings go beyond the admission of bare recklessness implicit in the Offender's plea of guilty to the terrorism offence. These findings serve to aggravate the objective gravity of both of the offences contained in the indictment. These were very serious examples of crimes committed under the relevant Commonwealth and State provisions.
In the context of sentencing for a s.101.4(2) offence, Whealy J observed in R v Mulahalilovic at [42] that punishment, deterrence, denunciation and protection of the community are important features on sentence for this class of offence. Regard must be had as well to the nature and purpose of the anti-terrorism laws, the reasons for their enactment and the maximum penalty of 10 years prescribed for this offence: R v Mulahalilovic at [43].
As Whealy J observed further at [53], the extent of the offender's awareness and the nature of the subjective circumstances that made it objectively unjustifiable to take the risk, are both matters which are highly relevant to the assessment of objective criminality.
The objective gravity of a s.101.4(2) offence is to be determined by reference not only to the "thing" that was possessed, but also the nature of the terrorist act and the recklessness of the Offender to the connection of the "thing" to the preparation of a terrorist act: Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 at 661 [319]. The "thing" in Benbrika v R was a compact disk which contained an archive of documents including a section relating to the duty of Muslims to engage in violent jihad.
I accept the Crown submission that the objective gravity of the s.101.4(2) offence here is to be determined primarily by assessing:
1. the nature of the thing possessed, the nature of the possession and its connection with preparation of planning;
2. the nature and seriousness of the proposed terrorist act being prepared or planned; and
3. the recklessness of the Offender.
Likewise, I accept the Crown submission that, generally speaking, in assessing the objective seriousness of the offence, the nature of the thing and the nature of the possession will be less important than the connection the thing has with the preparation of the act in question. All other things being equal, the offending will be more serious the closer the connection is between the thing and the preparation and planning.
The "thing" in this case was a loaded revolver which was capable of immediate use to kill or injure in a terrorist attack.
I accept the Crown submission that the quality of the "thing" in this case (an unregistered, concealable, loaded revolver), when considered together with the circumstances in which it was provided to Alou, its temporal proximity to the terrorist act and the Offender's admission as to his recklessness and his connection between the "thing" and the preparation for a terrorist act, places this offence at a very high level of seriousness.
This case goes far beyond the circumstances in Benbrika v R (documents relating to violent jihad) and in R v Mulahalilovic (involving a quantity of firearm ammunition) where the "thing" is significantly removed from direct and indirect use in the commission of a terrorist act. In this case, the "thing" was a loaded revolver which was capable of such use in the commission of a terrorist act, with the firearm being used precisely in that way soon after its supply to Alou. The revolver was capable of being used to kill and was in fact used to that effect.
It was a revolver which was the subject of this offence, and not an automatic weapon or a completed device capable of causing multiple deaths. That said, the revolver was used by Farhad to kill Mr Cheng and was discharged in circumstances where others could also have died.
The fact that the Offender's involvement in the s.101.4(2) offence occupied a period of about 24 hours only does not operate in any significant way in his favour on sentence. I accept the Crown submission that, if anything, the urgency surrounding Alou's desire to obtain the revolver from the Offender, (leading to several meetings on the afternoon of 2 October 2015) operated to place the Offender on greater notice of an imminent terrorist attack so that he was on greater notice as well of the unjustifiable risk attaching to his conduct, thereby making his recklessness more serious.
I have made findings already concerning what was in the Offender's mind at the time of the supply of the revolver to Alou. Those aspects operate as well to elevate the objective gravity of his s.101.4(2) offence. I accept the Crown submission that the circumstances in which possession of the revolver was transferred to Alou added further to the objective gravity of the conduct, and to an inference of awareness of a connection with a terrorist act. These circumstances included the covert nature of the meetings between the Offender and Alou, the use of counter-surveillance techniques and the Islamic appearance and clothing of Alou and one of his companions.
I have kept in mind that the Offender is not charged with, nor is he to be sentenced for, an offence under s.101.4(1) Criminal Code where the fault element is knowledge and the maximum penalty is imprisonment for 15 years.
However, the s.101.4(2) offence in this case involved a very high degree of criminality. It was objectively very serious and was accompanied by a strong element of moral culpability on the part of the Offender.
To the extent that the Crown referred to R v Mulahalilovic as a comparative sentencing case for a s.101.4(2) offence, I observe that the present offence is significantly more serious than in that case, where the sentence imposed was a head sentence of imprisonment of four years and eight months with a non-parole period of three years and six months.
The standard non-parole period of 10 years represents the non-parole period for a s.51(1A) offence in the middle of the range of seriousness, taking into account only the objective factors affecting the relative seriousness of that offence: s.54A(2) Crimes (Sentencing Procedure) Act 1999 (NSW). The standard non-parole period is to be taken into account without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence: s.54B(2) Crimes (Sentencing Procedure) Act 1999 (NSW).
The number of firearms which are included in a s.51(1A) charge is relevant to objective seriousness. Here there was a single pistol, but it was loaded and capable of immediate criminal use. The fact that it was loaded bears upon objective seriousness: Thalari v R at 320-321 [88].
There may be room for technical debate as to whether the Offender's expectation as to the use to which the revolver would be put bears upon objective seriousness (in the s.54A(2) statutory sense) or his moral culpability which is to be factored in as well in characterising the gravity of the offence.
In whichever way it is used, however, it magnifies significantly the gravity of the offence including the Offender's moral culpability.
The Offender supplied the revolver in this case in circumstances where he anticipated that it would be used to cause death or serious injury to one or more members of the public. If the Offender had refused to supply the revolver to Alou, then the terrorist attack could not have taken place as it did on that day. Alou had no other available source for a firearm apart from the Offender.
This was an exceptionally grave s.51(1A) offence. It lies in the most serious range of offending for this class of offence.
It will be necessary to take into account the degree of overlap between the s.101.4(2) offence and the supply pistol offence so that there is not double counting in sentencing the Offender. This will be considered further in the context of accumulation, concurrency and totality.
The Offender possessed the pistol for an extended period on the evening of 6 October 2015. Although the evidence does not disclose what happened to the pistol after it was placed (in a wrapped condition) in the rear of the utility parked outside the Offender's family residence, it was not located when the premises were searched by police on 7 October 2015.
Having regard to the totality of the evidence adduced at the sentencing hearing, it may be concluded readily that the Offender possessed the firearm for a sinister purpose. Certainly, there is no evidence from the Offender or otherwise of possession for some benign purpose. The CCTV footage depicts the Offender handling the firearm in an adept fashion which points to familiarity on his part with handguns. These aspects are relevant to the objective gravity of the second offence on the Form 1.
Further, although it may be taken that the Offender was well aware by then that the revolver he supplied to Alou had been used as a murder weapon in a notorious terrorist attack four days prior, he was nevertheless prepared to commit a further offence by possessing a pistol which he handled in the presence of other persons and, once again, in contravention of the FPO. He continued to flout the FPO in the presence of his companions.
The Offender's further offences committed on 6 October 2015, so soon after the terrible events of 2 October 2015, disclose a then entrenched and callous disregard on the part of the Offender towards public safety and the presence of illegal firearms in the community.
In passing sentence for the supply pistol offence, a significant additional component is required having regard to these features of the Form 1 offences.
It may be taken that the Offender committed four offences on 7 October 2015 under s.25(2) Crime Commission Act 2012 (NSW) for which the maximum penalty for each offence was imprisonment for two years. In light of the sentences of imprisonment imposed for these offences, it may be taken that they were serious offences of their type, applying the principles in cases such as Field v NSW Crime Commission [2009] NSWCA 144.
The commission of these offences by the Offender after the offences for which he is to be sentenced today is relevant to his prospects of rehabilitation (Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 at 179 [131]) and also the issue of totality, concurrence and accumulation of sentences to be imposed by this Court. I will return to these issues later in these remarks.
The Offender's Family and Personal Background
The Offender is an Australian citizen of Lebanese descent. His family are of the Sunni Muslim faith. The Offender is the third of four children in the family.
The Offender has always resided in the family home along with his younger siblings. He appears to have strong family support which has continued following his arrest with his family visiting him in custody when possible.
The Offender attended Hilltop Road Public School and Parramatta High School where he was graded in special education classes. He left school in Year 10 and commenced, but did not complete, an arborist course at TAFE. At the age of 15 years, he commenced working for his father's tree lopping business and, since he was 19 years old, he has operated his own independent tree lopping business which continued until his arrest for the present offences.
Reports and References
A report dated 9 February 2018 of Amanda White, psychologist, was tendered in the defence case on sentence together with a report dated 21 February 2018 of Dr Nielssen.
The reports of Ms White and Dr Nielssen note that the Offender began smoking cannabis when aged 15 years and continued this use until he entered custody in October 2015. Dr Nielssen diagnosed the Offender as having a severe substance use disorder which is in remission since he entered custody. Dr Nielssen also diagnosed the Offender as suffering from both an anxiety disorder and persistent depression disorder since he has been in custody.
Ms White undertook a number of tests and concluded that the Offender functioned within the low-average to average range. I note that Ms White examined the Offender at Goulburn on 2 February 2018 and that he did not wish to answer any questions regarding his state of mind or actions at the time of the offences.
The Offender told Dr Nielssen that he had supplied the firearm to Alou for financial, rather than ideological, reasons. In circumstances where the Offender did not give evidence at the sentencing hearing, I have placed no weight upon this statement for the purpose of making findings, applying the principles in R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 at 377 [58]-[59].
Likewise, I place no weight upon the report of Dr Nielssen on the question whether the Offender was, to any extent, the holder of radical or extremist views as at October 2015. I note, in any event, that Dr Nielssen does not purport to express any opinion upon this issue in his report.
The report of Ms White did not seek to address this issue either, with this being an understandable approach given that the Offender refused to discuss with her his state of mind or his actions at the time of the offences, even though he had pleaded guilty to the offences and was being interviewed by Ms White just one month before his sentencing hearing.
A number of references were tendered from members of the Offender's family (including medical evidence concerning the Offender's mother and father) and persons who knew the Offender's family (and the Offender) in a number of ways. The Offender's referees included Councillor Eddy Sarkis, the Deputy Mayor of Cumberland Council, who spoke highly of the Offender's father and the Offender and Father John Rizzo, a Catholic priest at Riverstone who has known the Offender since 2011. The referees speak highly of the Offender in a number of respects, including work he has done for others, and several of them noted that the Offender appears to have manifested regret for his actions.
I give weight to the contents of the references, but observe that the weight to be given to aspects of them is limited as the Offender did not give evidence at the sentencing hearing. In the absence of evidence from the Offender, I give little weight to passing observations made by some of the referees concerning the Offender's religious beliefs, including the Offender's cousin (Emad Alameddine), a friend (Mouhamad Wehbeh), Father Rizzo and a friend of the family (Beylal Racheha).
The Offender has a disciplinary history for offences at the HRMCC, being failure to comply with correctional centre routine (on 24 November 2015), unlawfully using a phone or fax (on 22 March 2016), disobeying a direction (on 18 August 2016) and assault (on 27 June 2017) in relation to which disciplinary penalties were imposed.
I will take into account on sentence the prospect that the Offender will serve part or all of the terms of imprisonment which I impose in the more confined custodial setting at the HRMCC.
With respect to the supply pistol offence to which the Offender has pleaded guilty, the Court should take into account the utilitarian value of the plea of guilty which will be determined largely by the timing of the plea so that the earlier the plea, the greater the discount: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at 10-11 [32].
The utilitarian value of the plea should be taken into account in addition to any relevant factors (if they exist) such as remorse or contrition for the offending or the acceptance of responsibility or willingness to facilitate the course of justice. A subjective intention to facilitate the course of justice and the strength of the Crown case are not relevant to the objective assessment of the utilitarian value of the plea: Xiao v R at [267]-[268]; R v Borkowski at 10-11 [32].
It was submitted for the Offender that the discount in this case should be commensurate with that of a plea entered in the Local Court as negotiations were on foot prior to the Offender being committed from the Local Court.
The Crown conceded that the pleas of guilty were entered at an early stage, although not until the matters had come to this Court following committal for trial. Whilst noting that the Crown's acceptance of the Offender's pleas has avoided a trial, the Crown observed that not all facts had been agreed and that there had been a contested factual hearing required in this Court which has a bearing on the utilitarian value of the pleas: R v AB (2011) 59 MVR 356; [2011] NSWCCA 229 at 363-364 [30]-[33].
As mentioned earlier, the Offender was arrested and charged on 15 October 2015. The brief of evidence was substantially served by late October 2016 and completely served by 19 April 2017. Although discussions commenced with respect to pleas in the context of committal proceedings in early May 2017, the Offender was committed for trial to this Court. It was not until July 2017 that an offer was made by the Offender to plead guilty to the present charges with that offer being accepted by the Crown in August 2017.
I do not accept the defence submission that it is appropriate to regard the value of the pleas in this case as being commensurate with pleas entered in the Local Court. The offer that was made on behalf of the Offender, which was eventually accepted by the Crown, was not made until 6 July 2017.
The sentencing hearing occupied one-and-a-half days and there were some complexities to it. I have not reduced the discount which I propose to allow the Offender by reference to the outcome of the issues debated at the sentencing hearing.
In all the circumstances, I am satisfied that the appropriate discount for the utilitarian value of the Offender's pleas is 15% with respect to both the Commonwealth and the State offences.
On 7 October 2015, the Offender committed further serious offences by refusing or failing to answer questions when required by law to do so before the New South Wales Crime Commission.
Since that time, the Offender has committed disciplinary offences whilst in custody.
He has expressed remorse and regret to members of his family and to other persons who have provided references and to Ms White and Dr Nielssen, the health professionals who interviewed him for the purpose of the sentencing hearing.
The Offender pleaded guilty to these offences in the face of a strong Crown case. I do not think that his pleas of guilty provide any real assistance to him on the issue of contrition and remorse. Beyond that, there are statements made by him to third parties which cannot be tested in the absence of the Offender giving evidence.
The onus lies upon the Offender to establish on the balance of probabilities that there is contrition and remorse on his part for these offences. Upon the evidence adduced at the sentencing hearing, I am not persuaded that the Offender has demonstrated contrition and remorse for these offences which ought be taken into account in his favour on sentence.
The Court must have regard to the Offender's prospects of rehabilitation: s.16A(2)(n). The Offender's prospects of rehabilitation need to be considered in light of his prior criminal history for offences of some seriousness. That history supports the view that the Offender had not been rehabilitated despite the previous steps taken by criminal courts up to October 2015.
Once again, I note that the Offender has a supportive family and other community supports (as borne out in the references) so that he had every opportunity to take advantage of non-custodial orders made by sentencing courts up to October 2015. Despite this, the Offender continued to offend in an even more serious way through the commission of the present offences in ways which manifested defiance of orders made under the law.
The Offender's further offences committed on 7 October 2015 in refusing to give evidence to the New South Wales Crime Commission about the subject matter surrounding the murder of Mr Cheng points once again to his recalcitrant, if not defiant, position at that time.
The reports of Ms White and Dr Nielssen and the character references suggest that the Offender has given further consideration to his past conduct so that, it is argued on his behalf, a positive finding should be made with respect to his prospects of rehabilitation.
The Offender did not give evidence at the sentencing hearing and there has been no opportunity for the Court to form a view concerning any claimed insight or signs of reformation on his part. The Court is limited to third-party assessments of the Offender.
In light of his past history and the factors to which I have adverted on this issue, the Court should be very cautious in approaching the question of the Offender's rehabilitation. The Offender bears the onus of proof on the civil standard on this issue. I am not persuaded that the Offender has good prospects of rehabilitation. The position cannot be put any higher than that there is some prospect in this regard in the future, but much will depend upon steps taken by the Offender whilst in custody over the long term to allow for a more informed view as to his prospects.
I accept that the Offender has considerable family and community support which is available to assist him when the time comes for his release from custody. That said, however, the Offender has always had these forms of support, but they have not assisted him in the past from repeat offending escalating to the grave crimes for which he is to be sentenced today.
Unlike many offenders who come before the Courts, the Offender had, and continues to have, a supportive family. He lived comfortably in the family house and had the capacity to work in a business associated with the family. Despite this, the Offender was involved on a repeated basis in serious firearm offences for which he is to be sentenced by this Court. There is some evidence that he used cannabis, but this does not seem to bear materially upon the offences for which he is to be sentenced. The mental health issues referred to by Dr Nielssen appear to involve a measure of depression which is to be expected when a person is in custody facing a potentially lengthy term of imprisonment.
In my view, personal deterrence remains a very significant issue on sentence in this case. I have not found contrition or remorse on the part of the Offender. He is a person who has committed serious offences despite opportunities extended to him by sentencing courts and when subject to a FPO which he flouted by the commission of the present offences.
The Court must have regard to general deterrence: s.16A(2)(ja). General deterrence is a very important factor to take into account on sentence for a terrorist offence (see [182]-[183] above). A high degree of general deterrence is to be reflected on sentence for the Offender's s.101.4(2) offence. Likewise, general deterrence is a very important factor on sentence for the supply pistol offence (see [207] above).
The Court must ensure that the Offender is adequately punished for his Commonwealth offence: s.16A(2)(k). I have referred earlier to sentencing principles to be called in aid to ensure that adequate punishment is imposed for a terrorism offence. One of the characteristics that distinguishes terrorism from other crimes involving violence (or the threat of violence) is that its object is to use serious violence (or the threat of it) as an instrument of coercion or intimidation of the community or governments, in the pursuit of a political, religious or ideological cause: R v Lodhi at 380-381 [91]-[92]. This aspect must be kept in mind when determining adequate punishment for the Offender's terrorism offence.
The Court must ensure that the Offender is adequately punished for the supply pistol offence: s.3A(a) Crimes (Sentencing Procedure) Act 1999 (NSW). I have considered earlier the serious features of this offence (and the Form 1 offences) for which the Offender is to be punished.
The Court must have regard to the character, antecedents, age, means and physical or mental condition of the Offender: s.16A(2)(m). I have referred to aspects of the evidence when considering the Offender's subjective circumstances earlier in these remarks. The Offender was 22 years old at the time of the offences. The youth of the Offender, whilst generally relevant, is to be given limited weight in light of the seriousness of the offences and the absence of any causal link between his age and his criminal conduct: R v Khalid [2017] NSWSC 1365 at [109], [270]; R v Alou (No. 4) at [170], [277].
The Court is required to consider the probable effect on the Offender's family: s.16A(2)(p). It is well established that this aspect may be taken into account on sentencing an offender in an exceptional case. The evidence with respect to the Offender rises no higher than a level of upset and concern on the part of his family members arising from his imprisonment. As was conceded for the Offender, concerns of this type are inevitable where a person is sentenced to imprisonment.
The factors which I have referred to have, in most respects, corresponding provisions in ss.3A and 21A Crimes (Sentencing Procedure) Act 1999 (NSW) so that it is not necessary to refer expressly and additionally to those factors on sentence. It may be taken that the Court has had regard to factors under the State legislation in the manner referred to when considering corresponding matters arising under s.16A Crimes Act 1914 (Cth).
I am satisfied that a degree of accumulation is necessary in order to reflect the total criminality of the Offender's conduct in the commission of the two offences on the indictment because the sentence for each individual offence cannot comprehend and reflect the criminality of the overall offending.
It is appropriate that the sentence for the s.101.4(2) offence operate first in time, with the sentence for the supply pistol offence to be accumulated upon it. In this way, the non-parole period for the State offence will be the operative non-parole period which will expire last in time.
It is necessary to take into account the concurrent sentences of imprisonment imposed at the Central Local Court on 10 May 2017 for the offences of refusing or failing to answer questions at a hearing of the New South Wales Crime Commission. The sentences to be imposed upon the Offender for the present offences should be accumulated to an extent so that it be the case that the Offender will have served some actual time in custody referable solely to those offences for which he has been sentenced.
I acknowledge that there is some general overlap between the subject matter of those offences and the present offences. The subject matter of the New South Wales Crime Commission hearing concerned the events surrounding the murder of Mr Cheng in a terrorist act on 2 October 2015. The Offender is to be sentenced for his criminal conduct associated with those events.
That said, the offences dealt with in the Local Court involved criminality of a different order, being defiance on the part of the Offender to comply with his obligations at law before a statutory body exercising important functions in the investigation and detection of crime in this State. There were statutory protections which the Offender could have relied upon at that hearing. Apparently, he did not do so, instead refusing to comply with his legal obligations.
Noting that there was a non-parole period of five months fixed with respect to those offences, I am satisfied that the appropriate course is to accumulate the sentences to be imposed today by a period of four months so that the earliest sentence to be imposed by this Court will date from 15 February 2016.
For the purpose of s.105A.23 Criminal Code, I warn the Offender that an application may be made under Division 105A Criminal Code for a continuing detention order requiring him to be detained in a prison after the end of the sentence for the offences.
Would the Offender please stand.
Talal Alameddine, for the offence under s.101.4(2) Criminal Code (Cth), you are convicted and I sentence you to imprisonment for a period of seven years and two months comprising a non-parole period of five years and three months commencing on 15 February 2016 and expiring on 14 May 2021 with a balance of term of one year and 11 months commencing on 15 May 2021 and expiring on 14 April 2023.
For the offence of supplying a pistol contrary to s.51(1A) Firearms Act 1996 (NSW), you are convicted and taking into account the offences on the Form 1, I sentence you to imprisonment for 14 years and two months comprising a non-parole period of 10 years commencing on 15 August 2019 and expiring on 14 August 2029 with a balance of term of four years and two months commencing on 15 August 2029 and expiring on 14 October 2033.
The earliest date upon which you will be eligible for consideration for release on parole is 15 August 2029.
As the Court has imposed sentences for both Commonwealth and State offences in which the sentence for the State offence exceeds that imposed for the Commonwealth offence, it is not appropriate to explain to the Offender the effect of the sentence for the Commonwealth offence for the purpose of s.16F Crimes Act 1914 (Cth).