R v Ali [2020] VSC 316

Supreme Court of Victoria|2020-05-21|Before: CHAMPION J

CRIMINAL LAW - Sentence - Plea of guilty - Single charge to do an act in preparation for, or planning a terrorist act contrary to s 101.6 of Criminal Code 1995 (Cth) - Supported Islamic State - Preparation of a terrorist act involving the shooting of innocent civilians in Melbourne CBD on New Year's Eve 2017 enjoying celebrations - Steps taken to acquire a firearm - Admissions of guilt - Renunciation of Islamic State - Evidence of remorse - Sentenced to 10 years' imprisonment with non-parole period of 7 years and 6 months - Criminal Code (Cth) ss 101.6(1), 105A.23 DPP (Cth) v Besim [2017] VSCA 158 - DPP (Cth) v MHK [2017] VSCA 157

2 The maximum penalty for the offence under s 101.6 of the Code is life imprisonment. This reflects the seriousness Parliament views the offence for which you will be sentenced.[1]

3 You planned to carry out a terrorist attack in the city of Melbourne at the end of 2017. The core features of the attack you contemplated were the killing of civilians; targeting a crowd of people to maximise casualties; and your eventual death, to achieve martyrdom. While planning the attack, you considered various methods of carrying it out, including the use of a vehicle, a firearm, bladed weapons, and a bomb.

4 The prosecution case is that in the course of your planning and preparation you made enquiries about obtaining a firearm and ammunition. You made these enquiries on 31 March and 6 April 2017 of people you believed might have been able to supply the weaponry you sought. However, you were unaware that the people you were speaking with were undercover police officers, and that your conversations with them were being covertly recorded.

5 During the time you engaged with the undercover police officers, you were contemplating an attack on a crowd of people, using a rapid fire assault rifle, and repeatedly shooting into the crowd at Federation Square moments before midnight, while New Year's Eve celebrations were taking place. Further, you planned to then take hostages. During the time of your planning for a terrorist attack you also contemplated using a truck to run multiple people down.

6 In the months following the last of your meetings with undercover operatives, you were still planning to conduct a terrorist attack at the end of 2017. You downloaded a document on 27 June in connection with this plan, called the Lone Mujahid Pocket Book ('The Pocket Book'). The Pocket Book is a collection of articles from the Al Qaeda publication Inspire, which describe various techniques for conducting terrorist attacks. It contains instructions in the use of firearms (including AK-47 assault rifles) and steps to create bombs at home. During this period you also accessed extremist video propaganda material, and contemplated pledging allegiance to Islamic State by making a video explaining your intended actions.

7 You were motivated to carry out this attack in pursuit of your ideological and religious objective to wage violent jihad against those you considered to be disbelievers ('kuffar') and the enemies of Muslims. You had an allegiance to the group known as Islamic State, or ISIS, which encouraged its supporters to carry out terrorist attacks in western countries. ISIS is a listed terrorist organisation pursuant to the Code.

8 You wanted to intimidate the Australian community because of what you saw as the Australian government's complicity in the persecution of Muslims overseas. You also wanted to motivate other Muslims to rise up against the Australian government.

First meeting with undercover operatives - Friday 31 March 2017

9 On 29 March 2017, AFP undercover operative 841990 ('UCO 990') exchanged a series of text messages with you via the WhatsApp messaging application. UCO 990 offered to meet you as he had been told that you "needed something". You replied that you "... needed help to get connections" and that you would tell him what kind when you met.

10 On 31 March 2017, you met with UCO 990 and another AFP undercover operative 1052459 ('UCO 459') outside the Coburg Mosque at approximately 2.20pm. The three of you had a conversation at a park nearby which was recorded with audio and visual equipment. You asked about obtaining a fake passport in order to travel overseas. You wanted the passport so you could travel overseas and join ISIS to pursue martyrdom by engaging in violent jihad. You explained that your passport had expired and were sure you would be unable to get another one. The UCO's advised about the difficulty in making fake passports given their modern security features. To which you asked:

... how about as a second option... do you have any connections where I can...get firearms?...

11 When asked what you were looking for, you replied by asking how much a machine gun would cost. The UCOs asked, "a machinegun?", you replied: "like an AK or something like that". You were referring to an AK-47 assault rifle.

12 The UCOs advised you that an "AK" is hard to bring into Australia but a pistol would be "no problem". You responded

... the thing is with Glocks, like, as in pistols... they take a long time to shoot, as in they're not as effective ...

13 You discussed with the UCOs your preference for rapid fire gun. When first asked about your reason for wanting a gun, you said you were told not to talk about it. You indicated that your first option was to get a passport, and your second option was to get a firearm.

14 When the UCOs said they would not help you if your intention was to use the firearm to do something 'haram' (something forbidden in Islam) such as holding up a 7/11 store. You responded:

... let's say, for example, a brother comes to you and he doesn't want - he wants to do a Fi Sabililah...like, he wants to do some Fi Sabililah using a gun...would you provide that...?[2]

15 When the UCOs confirmed that they would provide a firearm if it is not for crimes or standover tactics, you confirmed that the firearm is for something no forbidden, and said:

... if that's the case, then yeah, make that as priority. As in grabbing the firearm because I was hesitant to tell you guys about what I want to do with it. But then since if that's the case, then yeah, like, make that as priority.

16 When the UCOs asked you what you had planned so far, you responded:

...I'm already like - my planning is coming, um- is about New Year's Eve. When people congregate, come together. That's the main - like, ...I want to do something when people come together, a majority, so it can be maximum. So then my planning is towards the end of the year when New Year's Eve comes. But I'm saying like obviously this taking - getting the gun will probably take me months...

17 You agreed with the UCO's that you should talk in person and not over messaging applications or over the phone.

18 When the UCOs asked if you had sworn allegiance yet, you replied:

...not yet. My plan is to do it at the end of time, when the time comes because I want to do it in a video where like it's - I can send it to actual people...

19 The UCOs told you that they could help you with your video.

20 The UCOs also asked you how many people you wanted to "take out" on New Year's Eve, you said:

...well, as much as I can to be honest. As much as I can. Like, I'll leave one glock for the police but then I'm saying other than that, as much as I can. I was planning to use a truck but then my licence got cancelled...

21 The UCOs asked you if the truck would be used to drive through people, to which you responded:

...yeah... but then my licence got cancelled just recently. Then I'm like the only option I have is a firearm. I would've been glad to use a truck because that's like, a truck's massive, but then they cancelled just a couple of weeks ago...

22 The UCOs asked you where you would keep the firearm. You explained that you would bury it.

23 The UCOs said to you that they wanted to ensure that you were 100% ready. You replied:

I'm a hundred per cent ready, bro. I've always been thinking about it, since last year I've been thinking about it. Since last year, and then when they - it got to a point where I got to University and I was saying, shall I just do it now. Because that how much I missed becoming a shahid [a martyr].

24 You told the UCOs that you didn't have the money to purchase the firearm but you told them you could come up with "around maybe ten grand". You explained your intention to raise funds through a mobile phone scam.

25 The UCOs asked you if you were planning your attack in Melbourne. You confirmed that the attack would occur on New Year's Eve, at Federation Square, "where it's more packed."

26 When asked what you would do if there were Muslims there, you said you would not shoot them. When asked what you would do if you saw a "kuffar" woman holding a child, you responded:

...I wouldn't shoot them, because I thought about that actually, it is still halal but I'm saying like just for the child's sake. But if she was alone then yeah.[3]

27 The UCOs asked you to describe what you wanted to do and asked you if you needed a glock in addition to the assault rifle. You responded that one gun would be enough and continued:

...[d]id you ask me about how I want to do it?...It's like, um, just before...twelve o'clock. You know when it goes to you know eleven fifty-nine and it starts the countdown? As soon as the countdown finishes I'll be in the middle of the, you know, the audience, or the whatever, the people. And just from then on I just start going off at it. And I know there'll be police there. And next to Federation Square there's a party. There's like a club type place. So I go down and then hold people, hold the people hostage, until the police comes and then whatever happens, I die then.

28 When you were asked how you would respond to attending police, you said:

...how I deal with them is I - just how the brother from, you know France, did it...because I hold them hostage until them come in. From then I'm just going hard until they shoot me, what about it...

29 When asked whether you were 100% willing to go like that, you said "...yeah a hundred per cent..."

30 When you were asked how you would conceal the firearm, you responded:

...I already thought about that...I thought about putting it in like a sports bag or anything or like a massive bag. And because you know usually I wear a sports bag and its not really suspicious on me. Because I used to play soccer and that. I'll just grab a massive you know, sports bag, put that in, walk until the - what's it called, into the middle of the audience. And then from then on when it goes to the fifty-ninth minute, and towards the end of the fifty-ninth minute I just bring it out and just going off...

31 After your meeting, the UCOs dropped you off in the city on the corner of La Trobe and Swanston Streets near the RMIT. During the car trip, you referred to extremist preacher Anwar Al-Awlaki as your "main lecturer".

Second meeting with undercover operatives - Thursday 6 April 2017

32 On 4 April 2017, UCO 990 sent you a WhatsApp message and arranged to meet you in the "same park" being Campbell Reserve in Coburg.

33 On Thursday 6 April 2017, shortly after 11.00am, you met with UCOs 990 and 459 on the corner of Nicholson and Moore Streets in Coburg. All three of you placed your phones in the boot of the Holden Vectra being driven by the UCOs and walked to Campbell Reserve. Unknown to you, the meeting was recorded with audio and visual equipment.

34 The UCOs advised you that they could obtain an assault gun, which had been used in a bikie clubhouse shooting, for $3000. You stated that this would be fine. You said you weren't planning to do anything other than what you had already told the UCOs.

35 When you were asked about how many magazines of ammunition you needed, the UCOs informed you that there were 30 rounds in each magazine. You said you had no knowledge of this but guessed you would need five, six or seven magazines. The UCOs commented that seven clips was a lot of rounds. You responded: "...I'm planning to go hard bro...".

36 Seven magazines equated to 210 rounds of ammunition, which could potentially kill 210 people. You replied:

...that's all right actually. That's alright. We've gotta get that, there is no problem with that, I'll get that one...

37 You told the UCOs that you should be able to get the money together, and would go to the phone company tomorrow. The UCOs advised you that the owners of the gun were asking about how serious you were about wanting to "do something". You said:

To be honest I'm invested through to - I can't really prove, how serious I am. Last year towards the end when I started thinking of it, and towards this year I've been having a lot of dreams about it. Like one - one night I've been getting a dream of me, for example, I see my own dead body and one of the brothers they're looking over me and they're like 'the Shahid never dies'. Another one is where I see myself, you know how I said I want to run over people. How I see myself in Melbourne city with the truck and running over people like that, so that how serious I - I'll get.[4]

38 When seeking confirmation that you were committed to proceeding with the purchase of the firearm, UCO 990 asked: "So are you a hundred per cent?". You responded: "I'm a hundred per cent".

39 The UCOs asked if you had thought further about the planning of your attack. You told the UCOs that you had had been thinking about it every day:

...I've been thinking, to detail on how exactly I'm going to hold hostages and this that because I see the place the club itself it has a lot of windows, open windows, open spots, for, like, snipers or whatever so that's how I'm saying that's how in planning, in detailed planning. ...

40 The UCOs asked you how you thought you were going to carry out your attack. You responded:

...right now I'll probably have to obviously close all of the blinds. And I'll have to find a spot inside the - inside the club where they can't - where it's a blind spot where they can't see me... I'll have to you know first, go to the club myself and then just you know give a reconnaissance of what's going to happen and I'll probably do that soon, maybe in the next three weeks, that about it...

41 During the meeting you discussed international affairs with the UCOs, the Syrian conflict in particular. You expressed sympathy for ISIS as a group that only supported sharia law, which was something you also supported.

42 The UCOs asked you if you had thought more about what you wanted to put in the video you wanted to record pledging your allegiance to the Islamic State. You responded:

...First to the Australia public to explain why I'm doing this exactly, and what the solution is for that for not, you know, experience everything ever again. And then my second one is to the Muslim community, I'm gunna rise them up, and that's my main thing is I want to say...[5]

43 When you were asked how you were going to say it, you said:

...I'll be explaining...to the Australian community into the Australian Government why I'm going this and what the solution is to this, and what you have done to us for - for this to happen. After that then I'll be giving another maybe two, three minute explanation to the Muslim community to the brothers I know...but are too scared to do anything, and I'll be saying you see what's happening in Sha Iraq and Afghanistan and Somalia and that all those places, how Muslims are being the - totally demolished there, and what are you doing here? ...

44 When asked how you will release the video, you said:

...I'll have to find a, what's a name, a brother, because you know you can find anything on Twitter. And the connections on Twitter through other brothers but I'm going to be searching for the actual person that has a link to mujahideen or find him, find him mujahid myself then I'll send the video to...[6]

45 You were asked if there is anything else that they can help with, apart from a gun and ammunition. You asked:

...do you know where I can get the actual Dawlah flag?...[7]

46 You were referring to the ISIS flag. The UCOs said that the flag was hard to get. You then suggested that you could make yourself one and then said that you knew a brother who has a bandana of the "shahada".[8]

47 When asked whether you would consider something earlier than New Year's Eve, you responded:

...I'll probably look for, you know, ah - if it's too far out probably look for, ah, the public - other holidays that will congregate massive amounts, like New Year - New Year's Eve. There is, there's a lot. To be honest you know, there's um, the AFL Champion's march. I think it's in September. I'm not sure to be honest. But then there's even earlier than that...

48 When asked again if you would consider a date earlier than New Year's Eve, you responded:

Yeah. But after - or something that has you know near as much as a lot of people to congregate like New Year's Eve. There's the, I'm not sure when this is but there's the 'White Night'...but I was even looking on - search - like, I just typed Google, you know, Australia holidays. I mean, you know, there was maybe around twenty that came up...

...my original target at first, prior to when I even talk to you guys, there was this lady ...kafir, her name was, ah, Ayaan Hirsi...she's an actual dog... there's no one that I hate most and then anybody that insults the deen. So I was like firstly - and then I saw that once - her planning - that they were set for her arrival, I saw that you can't go into the place without going through security. So then I'm like I'll probably second thought, no probably not because you wont be able to get in to 'em with the, ah, stuff, and also if I do, you know, go with it, even if I take out the security, she's gunna run away and leave...[9]

50 The UCOs asked you how you would get into Federation Square for his attack concealing his weapon. You responded:

...nah best way is to get public transport like a train because by car you can get stopped at any time, and my sisters car, the one I was driving mostly when they were overseas, it got searched also and I had nothing on myself, so I'm like best thing to do is get a sports bag, put that in, cover it up with stuff and just go by train. Flinders Street Station is right next to Federation Square ... across the road so I'm like, it's not a long walk that I have to walk, it's just right there...

51 On the suggestion from UCO 459, you drove with the UCOs to Federation Square to have a look at the location. On arriving at Federation Square you remarked "the place that - I wanted to things is here". You pointed at a bar you identified as the Connex Bar. The UCOs asked you where you would stand, to which you replied:

...on New Year's Eve ... they place a massive screen... Coz yeah I've been to the - it's the exact place that I want to do it and the people they congregate right in front of the screen, and they go - they're packed. So I'm going to go from behind them and there's going to be stairs, so I'm going to be a little bit elevated... and then once you know, I told you when it goes fifty-nine to midnight and it's going towards - you know once the countdown starts, then I just go off from there... Once I see enough is enough, I'll go to the bar. And then I'll you know kill some and, ah, take some hostages, close all the windows, you know, all the curtains and that. Probably make one of the hostages hold the - hold the Dawlah flag on the window. Ah, probably that's a bit too far though...

52 When the UCOs asked why it was too far, you responded:

...they can - they can do something shifty while I'm not looking, they can just open a window a little bit for snipers to do something like that. But it depends on when I do reconnaissance to find if I can see a blind spot. Because after when I take hostages I'll wait for the police to come. They're gunna come in I know with full army gear and shields and all that...

53 After the visit to Federation Square, the UCOs dropped you off on the corner of Swanston and La Trobe streets.

54 On 28 April 2017, UCO 990 sent you a text message asking you if everything was okay. You did not reply to his message.

55 On Monday 12 June 2017, you accessed a Facebook account in the name of 'Abu Yahya', linked to his telecommunications service 0414 911629, and posted the following:

Ikhwan wal akhawat [brothers and sisters] in Australia do not leave your house without something to defend yourselves with. Carry stuff from now on. These kuffar only target vulnerable people and they come in groups. Especially the sisters, learn self defence. Australian isn't like how it was 10 years ago. It will only get worse.

Make dua for a Somali brother who was brutally beaten by a group of Kuffar pigs. They attacked him because he was Muslim. He has died today from head injuries.[10]

57 At 1.01am on Tuesday 27 June 2017, using the 'Telegram' instant messaging service application on your mobile phone, you initiated a conversation with an unidentified person using the account name of 'Sabruun jameel':

ALI: Asalamu alaykum sorry for messaging you but I need to ask something inshallah

58 At 6.25am on Tuesday 27 June 2017, you and Sabruun jameel joined a 'Telegram' instant messaging service 'secret chat'.

59 At 6.52am on Tuesday 27 June 2017, using the 'Telegram' application, you set a 'self-destruct timer to eight seconds' on a secret chat with 'Sabruun jameel'

60 At 6.56am on Tuesday 27 June 2017, 'Sabruun jameel' forwarded a message from 'Bomb Kuffar' to you containing a 77.7 megabyte PDF file titled 'Lone Mujahid Pocket Book'. You then exchanged a series of messages with 'Sabruun jameel':

ALI: you should've sent that on secret chat

ALI: [3x laughing faces]

ALI: DELETE

SJ: I don't know how

SJ: It's a food recepee

ALI: Cant you send it on other chat?

SJ: Like

ALI: I'll take it but clear chat and delete when I say so

SJ: Okay

ALI: Jazakallahu Kheyr [May Allah reward you good]

SJ: Wa iyaaak [and you too]

61 At 7.11am on Tuesday 27 June 2017, you downloaded a 77.73MB PDF titled 'Lone Mujahid Pocket Book Spring 2013' onto your Samsung Galaxy S7 Mobile phone.

62 At 11.43am on Tuesday 27 June 2017, police surveillance operatives observed you attend your place of employment at WIX computers.

63 At 1.55pm on Tuesday 27 June 2017, you viewed an email received on your mobile from 'account-noreply@adobe.com' which was addressed to 'jack smith' regarding a recently created AdobeID. The email confirmed that the created 'AdobeID was ali.khalif97@hotmail.com'. The email provided a link and instructed 'jack smith' to confirm the email address of ali.khalif97@hotmail.com by clicking the link. At 1.57pm on Tuesday 27 June 2017, Acrobat Reader, a program used to view PDF documents and for which an AdobeID can be used, was open on a Thermaltake computer which you used.

64 At 2.03pm on Tuesday 27 June 2017, using your mobile, you attempted to compose an email from the ali.khalif97@hotmail.com address to ali.khalif97@hotmail.com but received a message saying 'can't attach file over 25MB'. You were attempting to send a copy of the pocket book to yourself.

65 At 4.54 pm on Tuesday 27 June 2017, using the 'Telegram' instant messaging service application on your mobile, you sent images depicting a receiver, wires, lamp, light, battery connector and clock face. These images were screenshot images of pages 21, 22, 35 and 36 of the pocket book located in the chapter named 'Bomb Making: Kitchen Fun' and under the sub-headings 'Make a bomb in the kitchen of your Mom' and 'Remote Control Detonation', providing detailed instructions on how to make an explosive device and detonate it by remote control.

66 The pocket book was last opened on the computer used by yourself at WIX Computers on 29 September 2017.

67 The computer found to contain the pocket book was brought into WIX Computers approximately 18 months prior by a customer for repair, but was never collected. You began using the computer whilst working at WIX Computers.

68 There were a dozen messages with references to either ISIS or Islamic State within six hours prior to and after first downloading the pocket book.

69 The pocket book is a collection of articles from Inspire magazine, Issues 1-10. Inspire magazine is an online magazine published by Al Qaeda and used to motivate and influence Islamic extremist around the world to carry out attacks. The book contains step by step instructions on how to carry out an attack including:

(a) Torching parked vehicles;

(b) Causing road accidents;

(c) Starting bush fires;

(d) Making a bomb;

(e) Making acetone peroxide;

(f) Remote control detonation;

(g) Training with an AK-47 (assault rifle) and handguns;

(h) Creating poison; and

(i) Sending and receiving encrypted messages.

70 Shortly after 5.30pm on Tuesday 27 June 2017, you were observed by police surveillance operatives to depart WIX Computers and make your way home via public transport.

71 On Friday 30 June 2017, whilst using the 'Telegram' instant messaging service application on your mobile, you engaged in a conversation with a person using the account name of 'Bilal'. The following messages were exchanged:

ALI: Akhi if the family can't afford a lawyer the gov provides one yh?

BILAL: Nope not for these kind of chargers

BILAL: Plus legal aid strictly don't do work on irhab [terrorism] chargers so when you see one doing it then we should be worried about it.

ALI: I'm asking because I have a feeling that soon I may be in need of one

ALI: But I don't know where fam is going to bring up thousands of dollars for it

ALI: Lol

72 On Saturday 1 July 2017, whilst using your mobile, you accessed a Facebook account in the name 'Abu Yahya' and posted the following:

Looking at the surge of attacks against Muslims in the west I reckon very very soon Muslims will be legally killed on the streets or put into concentration camps.

73 On Sunday 2 July 2017, you sent a photograph of yourself holding up your index finger in a gesture known as the sign of "tawheed", to a 'Telegram' instant messaging service application group named 'oculus riftus'.[11]

74 On Sunday 2 July 2017, you used an instant messaging service application on your mobile and engaged in a discussion with a number of persons where the following messages were exchanged:

ALI: Boys I've come to the conclusion that it's possible that I would get raided soon lol

Ali Hussain: Why's that man' Did you loot any ships lately

ALI: ASIO is on my arse

Abu Musa: As long as you aint got nothing on you or on your phone that your ok Akhi

Ali Hussain: You will be fine as long as you don't say or do anything stupid

Bilal Abu Musa: When I get stopped by CT I just go along with they say and be polite

Bilal Abu Musa: Act like a coconut

ALI: Akhi a brother from Dubai was arrested and put into solitary confinement and interrogated for 2 weeks and for 1 week they interrogated him about me

ALI: idk y

Bilal Abu Musa: Subhan Allah [exalted is Allah]43 you know people who gone out that's why bro

ALI: Then another brother from Sydney got visited and they asked him if he, knows me,

Unidentified: Your ok akhi just don't get involved in telegram channel and make no videos or pictures on ur phone

ALI Hussain: When police ask people if they know people it's to investigate you and keep an eye on u

Ali Hussain: or they asking for any info

ALI: They have also sent undercover agents to me

Unidentified: to move the mountains

Ali Hussain: I wouldn't worry too much just relax in sha Allah

Ali Hussain: Be groovy

Ali: 2 brothers got arrested yesterday and you could see the pictures of when they were cuffed and lying on the floor with blood dripping off the face

75 At 5.17am on Tuesday 4 July 2017, using the 'Telegram' instant messaging service application on your mobile, you had a conversation with an unidentified person where the following messages were exchanged:

ALI: Akhi can we speak on secret chat?

Unidentified: [foreign] (yes)

ALI: Akhi

Unidentified: [foreign] (dear brother)

ALI: I'm going to ask a question and the reason I made it secret is that it's red hot but just a random question

Unidentified: Yes

Unidentified: Didn't get to read that

ALI: I'll send it again Unidentified: yea

Unidentified: That is like wearing a vest

ALI: Because let's say he only knows how to create remote controlled ones and no suicide vest

Unidentified: Odd question

ALI: Yeah but the vest needs a person to be next to the target while a remote controlled one doesn't. So is he considered an istishadi [martyr] even though he wasn't needed to be near the target and wasn't needed to kill himself?[12]

Unidentified: Oh

Unidentified: That's strange Unidentified: I get what you saying akhi

Unidentified: Allahu a'lam tho Unidentified: Why

Unidentified: Try not to worry about akhi because the likely hood of that actually happening is slim

ALI: It's a question that I really want to know akhi

ALI: Like for example the ones that did 7/7 I think they used one that is controlled by mobile but these still died

Unidentified: Allahu a'lam [Allah knows best or Only Allah knows] akhi I don't know for sure

ALI: Is there someone I can ask?

Unidentified: Junayd?

ALI: Too heated to talk about it on the phone and plus he lives in a different state

Unidentified: Do a chat like this

ALI: Even on this he wouldn't talk about it

76 It was submitted that at the time of these messages, you were contemplating the use of a bomb in a terrorist attack, having read about bomb making techniques in the pocket Book.

77 On Sunday 9 July 2017, whilst using the 'Telegram' instant messaging service application on your mobile, you engaged in a conversation with an unidentified person using the account name of 'random_traveller_' where the following messages were exchanged:

ALI: But for me I'm paranoid because I'm under hardcore surveillance

ALI: Nah it's nothing got to do with fear

ALI: They can do whatever they want with me I don't fear that

ALI: But these kuffar are cursed dogs who will have no mercy on your family if you get raided

78 On Tuesday 11 July 2017, whilst using the 'Telegram' instant messaging service application on your mobile, you engaged in a conversation with a person using the account name of 'Bilal'. The following messages were exchanged:

ALI: Did you find a sister already?

BILAL: Lol nah ima post it up once you fill out

ALI: Nah akhi barakallah [Blessings of Allah] I don't want that

BILAL: Lmaooo

BILAL: Fill it out before I do

ALI: Akhi wallah [I swear by Allah] may allah reward you but im not really interested in it as much as I was before

BILAL: This has always been the case you in for it then your out but then youll go back in lol akhi I don't wanna tell ya so I don't give any hopes but there a sister who is thinking of marriage when my fiancé told her about you

BILAL: I told her to gather me info about her cause all I know is shes turk

BILAL: No

ALI: Let me pray istikhara [a prayer seeking guidance from Allah]

ALI: Tonight

ALI: Tomorrow ill message

ALI: I do want to get married but I'm very much thinking other plans

BILAL: Wait let me find out info first leh then pray. Go for it

ALI: Haha

BILAL: Lol heart changed already ay

BILAL: Funny guy

ALI: Nah akhi I've always wanted to get married but im not sure about it

ALI: In confusion

BILAL: Akhi all the shabab are like we had enough of searching I stopped my search for almost a year and I'd never accept it if I was offered marriage the only sister I accepted during this whole year was abrar and this sister I'm marrying now Insha'Allah. It's different when you find the right kind of sister you will never say no after that even if you hated marriage lol but wallahi to get a proper sister. Step number one is to take marriage of ya mind completely. Step two focus on yourself your ibadah And Allah will grant you what you once wanted but chose to be patient for

ALI: I'm trying not to get married because theres a few things in the way

BILAL: Person things or financial things

ALI: Personal things

ALI: Plans

ALI: Lool

BILAL: Lol you need a partner for that

ALI: Yeah but it's going to take ages to make them agree to be partners

BILAL: Lool I'll be your partner for that

ALI: Loool I aint planning for next year tho I'm planning for the end of the year

BILAL: lol by then you will be married with a child cuz dw we can play a TRIP all together

BILAL: Insha'Allah I'll be taking the wife to Sydney after zawaj [marriage]

BILAL: Bru I wanna live there

BILAL: Btw I spoke to shayk khodr for the marriage so either in 1 week or 1 and a half I'll be doing it just let me know when will you be free so I can do it then

ALI: Bruv how can I have a child by the end of the year

ALI: Lool

ALI: that's impossible

BILAL: Maybe not born yet but mummys tummy

ALI: Baby and wife need someone to take care of them loool

79 The prosecution case is that this was a conversation in 'code', and the 'plans' you were referring to in this exchange related to your plan to carry out a terrorist attack at the end of 2017, in the course of which you would be killed.

80 On Friday 14 July 2017, a photograph of you holding up you index finger in the sign of "tawheed" is captured in your mobile phone gallery.

81 On Tuesday 8 August 2017, whilst using your mobile, you viewed page six of a document titled 'The Permissibility of Martyrdom'. This page is part of a 60 page document titled 'The Islamic Ruling on the Permissibility of Self-Sacrificial Operations Suicide, or Martyrdom'.

82 On Thursday 17 August 2017, whilst using your mobile, you typed the following comment, intended to be posted on Facebook: 'I've got a solution for terrorism!! Give back the passport of every...'.

83 On Sunday 20 August 2017, whilst using an instant messaging service application on your mobile, you engaged in a conversation with associates in a group titled 'Friends' and wrote the following messages:

ALI: Asalamu alaykum

ALI Another attack just happened in France

ALI: Lol

Third meeting with Undercover Operatives - Thursday 31 August 2017

84 On Thursday 31 August 2017, you met with UCO 459 in Footscray. You said you had been working. UCO 459 said he hadn't seen you for some time, to which you responded: "...yeah, you got to keep it low...".

85 You asked about UCO 990. UCO 459 stated that UCO 990 had been wondering where you had been, to which you replied: "...yeah it kinda got heated so you have to keep it on the low..." "...there's also change of mind, also change of everything...".

86 UCO 459 requested your mobile number. You provided your mobile number as 0414 911629.

87 UCO 459 asked whether you ended up getting what you were looking for. You responded: "...no because I changed my mind a bit, because I realised more that I need to help my family, my mum is kind of sick at the moment, that's why...".

88 UCO 459 asked if everything was okay, to which you responded: "...yeah but what's it called, medically, you know mentally she's not right. That's why I had to stand by...".

89 UCO 459 told you to message him if he still wanted to do something.

90 By this time, as the messages you sent to your associates reveal, you suspected that the UCOs were undercover agents.

Internet activity related to jihadist material and extremist propaganda

91 Forensic examination of your Samsung mobile revealed that you conducted a large number of internet searches relating to Islamic State, jihadism, extremist teaching and propaganda using that device. For a period of around six months before September 2017, internet history records were not accessible to investigators because they had been deleted or concealed by private browsing. During that period, however, the 'downloads' history database reveals that jihadist material, including some relating to Islamic State, was accessed from your Samsung phone.

92 Some examples of the material you accessed using your phone are as follows.

93 On 13 August 2017 , you accessed a video on your Instagram account which you described as your favourite video of Abu Izzadeen. In the video, Izzadeen, a British radical Islamist, delivered a speech:

(a) Stating that his allegiance is to his religion only, rather than to Britain or its institutions;

(b) Urging the introduction of sharia law into the United Kingdom; and

(c) Stating that western nations were at war with Islam.

94 You sought out material featuring Abu Izzadeen on other occasions.

95 On 5 September 2017, you watched a subtitled video, in which Anwar Al-Awlaki delivered a speech in support of violent jihad.

96 On Wednesday 13 September 2017, while using your mobile, you viewed a video titled "[Combat edit] The Capture of Mosul - ISIS fighters overrun Iraqi Army positions in Mosul and capture the city (June, 2014)". The video depicted Islamic State fighters engaged in combat scenes using heavy gun fire and explosives, and entering a Mosul prison to release prisoners.

97 On the same day, you used your mobile phone to conduct a Google internet search for 'flames of war isis', and viewed a video titled 'Flames of War'. This is an Islamic State propaganda video depicting combat scenes including heavy gun fire, explosives, deceased bodies and executions. The video celebrates terrorist attacks in western countries as part of a global jihad being waged by Islamic State. It glorifies killing and martyrdom in the name of this jihad.

98 On Sunday 24 September 2017, whilst using an instant messaging service application on your mobile, you engaged in a conversation with an unidentified person using the account name 'Alfvsran'. You then sent the following message:

Lmao one dream was a quick one where someone was telling my to make to Afghanistan. But there was another one where I was in a palace next to tora bora with the brothers. And I just arrived and I was sooo happy and I wanted to take a picture with the d flag. But someone handed me a flag that looked like jfs black flag and I hated it and I think I threw it away. Then a uzbeki muj who was smiling and coming towards me handed me the d flag and I kissed it. Subhanallah.

99 On Monday 2 October 2017, while using your mobile, you conducted a Google internet search for 'to them we ride nasheed' and viewed a nasheed titled 'Towards them we ride'. This is a jihadi nasheed which contains English subtitles.[13]

100 On Tuesday 3 October 2017, while using your mobile, you conducted a Google internet search for 'ibn taymiyaa aiding a mujahid' and viewed text titled '17: The Reward of Helping A mujahid. Jihad The forgotten obligation'. This text was viewed from a website portal titled 'WorldOfIslam' which provides Islamic theological instruction. The text refers to rewards in the afterlife for those who die in the cause of jihad.

101 On Tuesday 3 October 2017, you viewed images from the 'East Asia News' channel on the 'Telegram' application, depicting suicide vests being made. You subscribed to and received regular news updates from the 'East Asia News' channel. This subscription has approximately 228 members and distributes graphic news stories with photos and videos of conflict zones in the Middle East. You subscribed to a number of instant messaging service forums and news feeds accessed by your mobile phone.

102 Between 1 October 2017 and 8 November 2017 you conducted a significant number of internet searches which reveal an interest in, and sympathy for, jihadist ideology. They included the following search terms:

(a) 'race towards good Isis video';

(b) Jihadology Isis';

(c) 'Flames of war Isis';

(d) 'Knights of Africa Isis';

(e) 'Cubs of caliphate jihadology';

(f) 'For the sake of allah Isis video';

(g) 'To them we ride nasheed';

(h) 'Knights of Africa Isis; and

(i) 'Rebels attack Isis and their families'.

103 Forensic examination of the Thermaltake computer tower seized from WIX Computers revealed records of a number of internet searches, and visits to web pages, relating to Islamic State and extremist propaganda. The prosecution case is that you conducted these searches and visited these web pages whilst working at WIX Computers, between 26 June 2017 and 25 September 2017. Some examples of the searches recorded in the internet history are as follows:

(a) 'Isis';

(b) 'Epic Isis fighting footage';

(c) 'Isis message to the west';

(d) 'Isis beheads Syrian regime fighters video';

(e) 'epic Isis fighting footage';

(f) 'Isis is back in Libya for revenge';

(g) 'Isis epic battles'; and

(h) 'Islamic State beheading Syrians'.

104 At 2.50pm on 27 November 2017, you were arrested at the corner of Princess Freeway and Bridge Street, Werribee, in Victoria.

105 When later interviewed, police investigators asked why you were recorded asking for an AK-47 in order to kill innocent people, you replied that you may have had another reason but you could not remember. You said you were "pretty sure" that you did not want to go out and kill innocent people. You told police that you did not know what state of mind you were in at the time.

106 However, you also told police that you could have had that conversation with the undercover operatives "just to test them".

107 When questioned about news feeds and extremist material on your mobile, you said that you had opinions, and liked to keep up. You told police officers that you went against what the extremists believed but liked to keep up with what they said. However, in evidence you gave before this Court you said that as you conducted your own research around this time you had slowly started to have sympathy for ISIS. By 2017 you had a more radical view of Islam, and that you believed Jihad had to be done now. You conceded that over the course of about three years, you had absorbed ISIS material through watching a number of videos and reading the material they published. You began to agree with what you were reading, believed in the material you were watching and listening to.

108 In your police interview you denied remembering meetings with the UCOs. This was submitted by the prosecution as an example of incriminating conduct. It was submitted that you told these lies out of an awareness that those meetings, and what you had said during them, implicated you in planning a terrorist attack.

109 During the course of the plea hearing before me you gave evidence. In doing so it is to be recognised that you willingly exposed yourself to cross-examination. Rather than simply summarise your evidence, where I am of the opinion that aspects of it are significant to the determination of the sentence I will impose, I will make reference to it.

110 You were born on 11 March 1997 in Flemington, Melbourne. You are now 23 years old. At an early age your family moved to Werribee, where you have lived in the same family home your whole life. Your father, Khalif Shire Ali was born and grew up in Somalia and immigrated to Australia in 1989. Your father had been a soldier in the Somalian army. Your mother was born and raised in Ethiopia and came to Australia with your two eldest siblings on a refugee visa in 1993.

111 You come from a close, loving and supportive family and you have had a happy upbringing. Your family are conservative Muslims, being regular attendees at their local mosque, and are involved in the broader religious community. Both the Somali and English languages are spoken in your home with Somali mostly spoken with your parents and English with your siblings.

112 You have had eight siblings, three of whom are now deceased. Your elder brother, Hassan, was fatally shot by police on the afternoon of 9 November 2018, during an extremely serious ISIS inspired terrorism incident in the Melbourne CBD. One person was killed, and another two seriously wounded. These events occurred when you were in custody after having been arrested for the offending before this Court. I shall say more about your brother later.

113 You attended primary and secondary schooling at the Al-Taqwa College in Truganina, a large mainstream Islamic school. Between the ages of 4 and 16, you also attended after-school Islamic classes. You enjoyed school and had a wide circle of friends. You have always had a strong interest in sport, particularly basketball and soccer. You played Australian Rules football and hockey at school. You successfully completed VCE in 2014, deciding to study computing and information technology. You began a certificate program at Swinburne University in 2015, and in early 2016 transferred to the RMIT, where you remained until mid-2017. Around this time you ceased attending RMIT classes and began working at WIX Computers in Nicholson Street, Footscray. You were employed there on a casual basis, working a couple of days per week repairing mobile phones. Despite what had become a nightly routine of viewing ISIS-produced graphically violent and macabre images, your daily life had an outward appearance of normality, and it appears your work was productive. I will discuss these aspect of your life later in more detail.

114 You have described a very religious upbringing. Your parents taught you the principles of the Muslim faith from an early age. Your family attended the Mosque together every Friday for prayer, and in addition you attended with your father on Saturdays and Sundays for evening prayers. Your father was involved in the council affiliated with the Mosque and was very involved in the Muslim community. Throughout your childhood you attended Quran classes and Arabic classes. However, as a teenager, you rebelled slightly from this devout faith. You smoked cigarettes for a period and had an interest in girls, but you remained devout. You never consumed alcohol, but tried cannabis once.

115 The Court received a report authored by clinical psychologist, Mr Guy Coffey, dated 20 October 2019. Mr Coffey gave evidence at your plea hearing.

116 Mr Coffey reports that your family life was largely harmonious but you described being defiant for a few years from the age of 14 when you began to question your family's values. However, by broader community standards, this appears to have mostly been a gentle youthful rebellion until you approached the age of 17 when you began turning towards a more stringent form of Islamic belief. Mr Coffey described your father and elder sister's recall of you during your secondary schooling as a "happy boy", who was reserved and courteous, with a modest circle of friends.

117 Mr Coffey notes that, while you experienced a degree of emotional turmoil and tension during 2016 and the first half of 2017, you reported to him that you did not experience early developmental difficulties. You appear to have acquired physical and intellectual abilities at a normal rate. Your father and older sister describe you as never displaying any psychological problems, including problems with conduct or anger. You have never received any psychological or psychiatric treatment.

118 However, as your ideas became more extreme and you developed a new interest in middle-eastern conflicts, your increasing involvement in extreme forms of Islam and your absorption in those conflicts did affect your psychological well-being. However, Mr Coffey notes that whilst during 2016 and the first half of 2017 you experienced a degree of emotional turmoil and tension, at no stage did you suffer from a mental disorder, you were not clinically depressed, and you did not suffer the range of anxiety symptoms associated with an anxiety disorder.

119 You told Mr Coffey that the imagery in the violent ISIS material you were viewing on a nightly basis stayed with you as you lay in your bed but that during the day you had an outward appearance of normality, maintained a routine, and were reasonably productive at work. Mr Coffey opined that around this time you did not appear to have suffered a diagnosable disorder, and did not experience any abnormal experiences suggestive of severe mental illness. Whilst you may have experienced a degree of depressed mood and anxiety, these were not of an intensity or duration suggestive of a mental disorder.

120 When later interviewed by Mr Coffey you were again not experiencing anxiety symptoms suggestive of an anxiety disorder, and you demonstrated no formal thought disorder, abnormal ideation, perceptual disorders or any other symptoms that might suggest a psychotic illness. Mr Coffey concluded you had no cognitive impairment, that you use vocabulary which is reasonably sophisticated, your attention and memory functioning was unimpaired, and you are of normal intelligence. Further, he opined that you have no abnormalities of personality functioning, and that you have no history of aggression or violence, or have used coercion to achieve personal ends. You have no affective volatility or pattern of unstable attachments or abnormal ideation. Whilst you may have a number of personality characteristics that made you more receptive to an extremist ideology, none of these individually or cumulatively constitute a disorder of personality.

121 Significantly, in describing the development of your terrorist beliefs, Mr Coffey concluded that in the course of the evolution of those beliefs you were not affected by any abnormal mental state. He did conclude that you possess some personality traits that may have played a role in your adoption of extreme ideologies, however none of those traits in themselves are abnormal.

122 You reported to Mr Coffey that while studying at the RMIT you found some of the secular aspects of campus life unsettling, and became increasingly religious. Your parents noticed this and were concerned that your ideas were becoming too extreme. Your friends also questioned this new interest in middle-eastern conflicts. At university you were exposed to a much broader cross-section of the community, which was something of an awakening to a broader world.

123 With your religious beliefs beginning to change from around 2014, you began to express more conservative views about how women should behave, you stopped going to parties, and you no longer listened to secular music. From the age of about 15, you and your brother, Hassan, who was nine years older than you, had begun being influenced by various political theories you found on the internet. Over the course of the next year or two you both regularly watched videos espousing conspiratorial views. You were drawn to the developing conflict in Syria and in June 2014 when ISIS declared a caliphate, you were captivated and euphoric. You believed from your previous education that a caliphate was a place all Muslims longed for. Your Counsel described the type of material that you began to consume as propaganda designed to persuade in a compelling way that there was righteousness in its cause, that you were taken in by it, and persuaded by the arguments that ISIS was making, such that you became saturated with that type of material.

124 You developed an increasing interest in learning more about ISIS. You did not openly declare your sympathy towards ISIS to your family and friends, but when it was discussed with your parents you had disagreements with them, to the point where they were worried for you, and attempted to persuade you to speak with a local sheik. You did not take their advice.

125 From around 2014 you had begun having daily contact with ISIS supporters around the world on social media. You began watching ISIS videos, which led you to a nightly routine of viewing such material for up to two hours. You found the material compelling, and more persuasive than your parents or your teacher's views. Eventually, ISIS material became your only viewing. Your routine became spending a few hours late at nights in this violent world, viewing videos and related material up until your arrest in November 2017. You found the videos mesmerising, harrowing and disturbing all at the same time. You described to Mr Coffey feeling angry and confused, that the imagery was gruesome and would stay in your mind and affect your mood during the day. You reported to Mr Coffey that in hindsight this material "sucked the life out of me", and that the anger you felt over the depiction of wanton killing of Muslims "overtook my rational thinking".

126 By 2016 you had arrived at the view that you needed to do something in response to the killing of innocent Muslims, along the lines suggested by ISIS. You told Mr Coffey that you felt a sense of shame and urgency. However, you were never under an illusion that a local terrorist attack in Australia could improve the situation in Syria, Iraq, or Afghanistan. Rather, you thought that you would give Australia a small taste of what was happening in those countries by hurting innocent people in this country. Your motivation was the taking an eye for an eye rather than planning the commission of a criminal act to force change, and you were intent on revenge. It is clear that you had become radicalised. You accept that you had reached that point.

127 You gave evidence about your journey to radicalisation, and how that occurred in circumstances where you were an angry and confused young man. You explained that you started to do your own research which was how you developed sympathy with ISIS. You explained that this mostly occurred on your own but you did share it with some people, including your brother. Your evidence is that in your evolving plan to commit a terrorist act as outlined by the prosecution, you were hoping to be martyred. This was a prospect that made you feel happy at the time.

128 You told Mr Coffey that over the course of 2017 you began to have doubts of whether a terrorist attack was consistent with Islam. Whilst you had stated in March 2017 that you were 100% ready to perpetrate an attack, in the months that led up to your arrest your plans did not become more concrete. You claimed to be unsure of what method to use to execute the attack, having considered firearms, using a bomb, and a vehicle. Despite the misgivings you later expressed, you said you did not lose the sense that something had to be done and that you remained under the influence of ISIS. You believed you would die in the aftermath of your planned terrorist attack, and that you welcomed a martyr's death. In the months before your arrest you continued to access ISIS material each day, saying that you were attempting to resolve your doubts about staying on the path to an act of terrorism. However, in the month before your arrest you accessed a range of ISIS material, and continued to be intensely involved in what was occurring in Iraq and Syria. I will return to further discuss your radicalisation later.

129 As above, the maximum penalty for your offence is life imprisonment. Only two other kinds of terrorism offences carry that same sanction, namely, actually engaging in a terrorist act and financing terrorism or a terrorist act. The maximum penalty reflects the seriousness with which Parliament views this offence of doing acts in preparation for, or planning, a terrorist act. The maximum penalty provides a yardstick in sentencing for this offence.

130 One of the defining features of terrorism is that its objective is the use of serious violence, or threat of violence, as an instrument of coercion or intimidation of both the community and governments in the pursuit of a political, religious or ideological cause. It is beyond doubt that the offence that you have pleaded guilty to must be regarded as an inherently serious category of offending.

131 In assessing the objective gravity of the offending you carried out, Counsel submitted on your behalf that care must be taken to keep in mind that the offence you committed occurred between 31 March and 6 April 2017. Your Counsel pointed to a number of matters alleged by the prosecution which took place after 6 April 2017, across the following months. These matters included the downloading of the pocket book on 27 June 2019, as I have discussed. I have already noted them and do not need to again, it being sufficient to note that they add context to your earlier offending, and are relevant to determining the period of time for which you had a terrorist act in contemplation.

132 It is not disputed that your intention to engage in a terrorist act persisted up until your arrest, however, it is pointed out that there is an absence of positive acts in furtherance of your intended ultimate act of violence beyond the matters specified in the prosecution opening. It is emphasised that after the second meeting with the police undercover operatives on 6 April 2017, no further attempts were made to acquire the firearm that you had sought; you did not attempt to acquire plastic piping to store a firearm; there is no evidence that you pursued the plan to engage in a phone scam to obtain money to pay for the firearm; and, by the time of your arrest you had no materials or equipment in your possession that were intended to be used in your overall plan. The absence of evidence demonstrating you actually acquired a means by which your planned attack would be carried out may be compared to other similar cases where significant levels of preparation and planning had taken place, weapons and tools of the method of attack had been assembled and made ready, and where the commission of the planned terrorist attack was imminent.

133 In this regard it was submitted that there is no suggestion that the attack you planned to carry out was imminent, or would have taken place but for the intervention of authorities.

134 Your Counsel accepted that in cases such as the present, objective seriousness is not to be determined by reference to the proximity of the intended act to its actual commission, but rather an offender's conduct and their intention at the time the crime was committed. In the assessment of objective gravity, your counsel noted the observations in DPP (Cth) v MHK,[14] that:

[I]t is important to bear in mind that the statutory offence created by s 101.6 of the Criminal Code was designed to ensure that persons, who plan to commit dangerous acts of terror in our community, be intercepted early, well before they are able to perpetrate such acts and thereby cause the appalling casualties that invariably result from acts of terror. It is for that reason that an assessment of the criminal culpability of a person, convicted of such an offence, is not measured purely by the steps and actions taken by the offender towards the commission of the act of terror**,** but, in addition, by a proper understanding and appreciation of the nature and extent of the terrorist act that was in contemplation, and to which those steps were directed.[15]

135 Accordingly, it was submitted that while the nature of the contemplated terrorist act intended by you was a very important factor in the assessment of gravity, proximity, or the lack of proximity, between the preparatory act or acts and the completion of the intended attack, as well as an assessment of the steps and actions taken towards the commission of the act of terror, are matters that still remain relevant. In this regard, the prosecution submitted that while proximity is a matter of relevance, generally speaking the assessment of the nature of the contemplated act and an offender's intention at the time are relevant acts in preparation were committed, are the determinative matters upon which focus should be concentrated, and this is a reflection of the maximum penalty that attaches to this offence.

136 The prosecution submitted the objective gravity of your offending is very high. It is argued that gravity is to be determined by assessing the conduct of the offender, and an offender's intention at the time the crime was committed, in this case, your planning and preparation. The prosecution points to your attempts to acquire an automatic rifle to kill as many people as possible in a crowded place; the devastating level of harm that would have been caused to the public; that you had selected a target and date, that you had given thought to the attack since the previous year and continued to think about it up until your arrest; that you were undeterred by others who had been arrested for terrorism offences, along with your suspicion that you were at risk of arrest; that your plan contained a significant level of detailed thought about how the offending would be carried out; that it would be carried out on a date of significance; that you attempted to avoid detection with your communications by carrying them out in secret; that you hoped your plan would motivate other Muslims to rise up against the Australian government; and, that over the period in contemplation your radicalisation had become entrenched.

137 I note the concession by the prosecution that after 6 April 2017 you made no further attempts to acquire a firearm, even though you were given the opportunity to make a deposit for a weapon. However, the prosecution argues that this should be seen in light of your belief that you were being monitored by law enforcement, as demonstrated by your assertions to the UCO's on 31 August 2017 that you no longer intended to commit the attack.

138 The prosecution points out that the main focus of assessing the objective seriousness of your offending should be on your conduct and intention at the time of the preparatory acts, and to this end the prosecution argues that your intention at the time of the commission of these acts between 31 March 2017 and 6 April 2017 was clear, it being to cause as much harm to innocent civilians as you could, and terrify the Australian community.

139 It is conceded that if ultimately carried out, the acts you planned would have caused death and serious injury to multiple members of the Australian community. This breadth of intended damage is a factor that may be compared to those offenders that have planned and prepared for the death of a single person, or property. The acts you prepared for were intended to kill and injure as many people as possible, intended to be in the possible range of approximately two hundred casualties. The consequences of your intended actions were to wreak a terrible and horrifying toll. It is a relevant consideration that your plan involved a mass casualty event, thus elevating the gravity of your offence to a more serious level than had you planned to kill or injure one victim, or destroy property.[16]

140 The very serious nature of your offending cannot be doubted. Had you not been intercepted early by the AFP, and if carried out, the extreme level of violence you had contemplated would likely have caused deaths and serious injuries to innocent members of the Australian community, a community of which you are a member, and someone who has enjoyed the benefits of that membership. Your aim was to commit an act of terror and horror by causing maximum harm to other members of your community in pursuit of twisted religious and political objectives to wage violent jihad against those you considered to be disbelievers and the enemies of Muslims. Such contemplated actions must be condemned in the strongest terms.

141 Further, your intention was to take revenge, and in doing so intimidate the Australian community, with the objective of motivating other Muslims to rise up against the Australian government, and the wider Australian community. Terrorism legislation is designed to deter people like yourself from acting on your political religious or ideological beliefs, and to protect the whole community.

142 Taking into account all the circumstances, in my opinion an assessment of the objective gravity of the offence to which you have pleaded guilty requires that it be regarded as very serious offending.

143 With respect to your level of culpability, your Counsel have emphasised your youth and have argued that you were heavily influenced by very persuasive propaganda published by ISIS, it being material designed to engage and persuade. It was submitted that the context in which your radicalisation developed was as a youth just reaching adulthood, experiencing the unfamiliar openness of university life and culture, having grown up in a very conservative environment. The above noted, it was conceded on your behalf that whilst you may have lacked maturity, you functioned at a normal intellectual level, that you had been well educated, and are intelligent. You clearly had the capacity to know what you were setting out to do, and to know that it was wrong.

144 It was acknowledged on your behalf that you have no mental illness or cognitive deficiencies or behavioural issues that materially contributed to your offending. It was specifically acknowledged that you do not rely on any suffering from a mental disorder as a basis for reducing your culpability. That stated, it was also submitted that your intelligence provides you the capacity to change and to move on from a rigidity in thinking, such that you should be considered to have good prospects for rehabilitation.

145 Mr Coffey described you as a young man who in the years leading up to your offending was open to an intense attachment to abstract ideas and dogma, unleavened by common sense and everyday experience. He described you as being able to put aside the normal desires of adolescence such as seeking out the approval of peers, sharing their world view, and forming intimate relationships. You had a pre-existing and strongly felt set of ideas about the desirability of a caliphate in the creation of a perfect Islamic society on earth, ideas that appeared to be attended by a kind of euphoria, which undoubtedly made you more receptive to ISIS pronouncements. Mr Coffey concluded that although you were clearly intelligent, you did not appear to possess an ability to analyse such ideas logically and rationally and independently from religious precepts. Further, Mr Coffey expressed the view that while it was possible to retrospectively identify a number of personal characteristics as playing a role in your evolution towards terrorism, none were in themselves psychopathological or abnormal. Taken individually, and in various combinations, these characteristics are not uncommon in adolescence and early adulthood. Mr Coffey expressed the view that the fraternal relationship with your brother Hassan was influential in the development of your sympathies for ISIS, and played a role in the genesis of your beliefs. He was also of the opinion that it was incontrovertible that the single greatest contribution to your offending was the three years of unremitting daily exposure to ISIS propaganda.

146 The prosecution submitted that at the time you met with the UCOs you had a clear resolve to commit the intended attack at Federation Square. You reconnoitred the location, engaged in detailed planning, and considered alternative methods to commit the attack, as a number failed to reach viability, and remained committed up until the time of your arrest.

147 As to my conclusion on your culpability, you were a young man heavily influenced by terrorist propaganda and other extremist material. You were absorbed and heavily influenced by it. You put significant effort into engaging with ISIS with respect to the acquisition of a weapon, and other items to carry out your intended attack. However, the acquisition of items to carry out your attack, and preparation beyond talking and thinking, did not develop past the second conversation, although your intention persisted until the point of your arrest. That observed, your offence was complete by the end date on the charge on the indictment.

148 As to whether you would go on to commit this attack, albeit that you told Mr Coffey that you had a sense of relief that you were intercepted and detained, that sense of relief was expressed in hindsight. The state of mind you had at the time of your arrest was that you were still committed to carry out the attack, but this is to be assessed in the context of you not taking positive steps to gather the means by which to carry out the act. The quality of your resolve at the time of your arrest might be compared to other like offenders who were arrested at a point where the attack was imminent and evidence was capable of demonstrating that the event was clearly going to happen.[17] The prosecution submitted that in your case I should be satisfied that the attack was likely to have been committed and that there was a real risk that it would take place. It is sufficient to conclude that your plan had not been abandoned by the time of your arrest and that you still had the resolve that the plan would be carried out. On the other hand, it is fair to say that the attack was not imminent, given that it was to occur on the next New Year's Eve. It is also fair to say that you had become aware of the likelihood that your activities were under surveillance, yet you persisted in the plan, and were considering alternative ways in which to carry it out.

149 It may well be that from time to time you wavered in your resolve to carry out the attack, however, in my opinion such a circumstance is consistent with the enormity of the ultimate step that you were planning to take, which was unequivocally horrifying in its potential savagery, it being one that was intended to lead towards your own martyrdom. In my opinion it was likely you would have carried out the attack had the authorities not intervened to stop you.

150 In all the circumstances, you are to be assessed at a high level of culpability for this offence, however, for the reasons I have discussed, and will discuss below, I have moderated my assessment of your culpability due to your youth and susceptibility of persuasion by the vicious and insidious nature of the propaganda expounded by Islamic state.

151 You have pleaded guilty to this offence, however, the plea was not entered at the earliest possible opportunity available to you. The matter involved a contested committal hearing, and your plea was entered following this Court's rulings on complex pre-trial issues, after 13 days of pre-trial argument. Accordingly, you do not qualify for the full discount that otherwise might have been available had you pleaded guilty at the earliest possible opportunity. However, despite the lateness of your plea, it is to be acknowledged that by pleading guilty you have facilitated the course of justice, and the plea has utilitarian value in that it has saved the resources of this Court, and the trouble of having to proceed to a jury trial.

152 It was submitted by your counsel that your plea of guilty was very valuable and justifies a significant discount on sentence. Your counsel argued that whilst the trial in this matter would not necessarily have been a long one, it would have nevertheless been complex and traumatic for jurors. Further, it is submitted that there is good evidence establishing that your plea of guilty reflects substantial remorse.

153 It was submitted on your behalf that you are remorseful for having committed this offence. In my opinion this is an important factor in the assessment of an appropriate sentence in your case.

154 In your evidence you expressed deep sorrow for your actions against the Australian community. In the period leading up to and involving your offending you describe having experienced feelings of deep anger and confusion which blinded you from reality. You explained having now gained an understanding that the consequences of your planned actions would give rise to fear, division and anger in the community, and that you did not want to be a person that caused those circumstances. Further, you explained that you did not want your actions to be representative of the religion of Islam. You said that your actions were a mistake, and that you are deeply grateful for the intervention of the authorities.

At a glance

Court

Decision date

Before

Source

Judgment (305 paragraphs)

Parties