R v Alou

Supreme Court of NSW|2018-01-29|Before: Johnson J

The Offence for Which the Offender is to be Sentenced

The Offender has pleaded guilty to a charge under ss.11.2(1) and 101.1(1) Criminal Code (Cth) that between about 6 August 2015 and about 2 October 2015 at Sydney and elsewhere in the State of New South Wales, he did aid, abet, counsel or procure the commission of an offence by Farhad Mohammad against s.101.1(1) Criminal Code (Cth) namely that Farhad Mohammad did commit a terrorist act.
The particulars of the terrorist act in this case were that action involving the use of a firearm was to be done or threatened with the intention of advancing a political, religious or ideological cause and with other features falling within the definition of a "terrorist act" in s.100.1 Criminal Code (Cth).
The maximum penalty for this offence is imprisonment for life. As a person who aided, abetted, counselled or procured the commission of the terrorist act, the Offender is liable to the same penalty as the principal offender: s.11.2(1) Criminal Code (Cth).
This is the first time the offence of aiding and abetting a terrorist act has been charged and led to a conviction and consequently the first time this offence provision has come before a sentencing court in Australia. Likewise, it is the first time an offence of committing a terrorist act contrary to the Criminal Code (Cth) has come before a sentencing court in Australia. There have been sentencing decisions for offences of conspiracy or planning or preparing to commit a terrorist act and possessing documents for that purpose, but not a case where the terrorist act has been committed which causes the death of a person.

The Sentencing Hearing

A sentencing hearing took place between 29 January 2018 and 2 February 2018 with respect to the Offender. A Statement of Facts (Exhibit T) was tendered by consent. There were a number of areas of factual dispute in relation to which the Court heard evidence and submissions.
As at 13 December 2017, it was expected that three persons would give oral evidence at the sentencing hearing. The Court made a number of orders to facilitate that process: R v Alou (No. 1) [2017] NSWSC 1731.
When the hearing commenced on 29 January 2018, the Court was informed that it was no longer necessary for one of these persons to give evidence. During the course of the hearing, it was also agreed that a second person did not need to give evidence. One person gave extensive evidence in closed court and was cross-examined by Senior Counsel for the Offender.
In addition, submissions were made concerning what findings should be reached by the Court on certain factual issues which involved the conclusions which should be reached arising from the movements of persons (including the Offender) and conversations between persons (including the Offender).
The Crown tendered other documentary material as well. This included a helpful report of Dr Rodger Shanahan dated 1 November 2017 which addressed, amongst other things, the origin of radical Islamic beliefs (including Islamic State), relevant terminology and symbols. The Crown also tendered affidavits sworn on 19 and 25 January 2018 of Glen Piazza concerning the Offender's custodial conditions. An affidavit of Steven Barracosa affirmed on 19 January 2018 addressed the availability of a deradicalisation program in a custodial setting. Further, the transcript of a telephone conversation between the Offender and his mother on 24 December 2017 was tendered by the Crown. More will be said about this later in these sentencing remarks.
A number of documents were tendered in the Offender's case on sentence including psychological and psychiatric reports to which I will return.
The Offender did not give evidence at the sentencing hearing.

Facts of the Offence

In sentencing the Offender for his crime, it will be necessary to recount, in particular, the activities of the Offender and Farhad Mohammad in the period leading up to the commission of this terrible crime.
What follows are my findings of fact concerning the offence for the purpose of sentencing. Where there are disputed issues, I will indicate shortly the nature of the dispute and my finding. In addition to the documentary evidence tendered at the sentencing hearing, audio, video and photographic evidence was also tendered (including Exhibits G, K, N, R, V and W and Exhibits 3 and 4). These exhibits were played in open court with the exception of Confidential Exhibit R. I have viewed this material for the purpose of making findings of fact on sentence.
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].
These sentencing remarks relate only to the Offender. 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. The Offender
The Offender was born in August 1997. More will be said concerning his personal background and history when addressing his subjective circumstances. It is sufficient to observe that, at all relevant times, he was residing with his mother and his siblings at Wentworthville. The Offender was born in Sydney to Kurdish/Syrian parents. He has a younger brother and two older brothers. His parents separated when he was young and they divorced when he was 12-13 years old. He stayed in the care of his mother who did not remarry. He remained in regular contact with his father throughout childhood. His father remarried and had three more children. The Offender had married a young woman some months before the events of 2 October 2015, although it does not appear that he was living with her in the period leading up to the offence.
It appears that a process of radicalisation of the Offender was underway in late 2014 as he became more intensely involved in his religion. As will be seen, Department of Juvenile Justice officers who were supervising the Offender at that time considered that this step may have been a positive and stabilising factor. In fact, it appears to have entrenched radical and criminal views upon which the Offender acted later in 2015.
The report of Dr Shanahan provides some context for events in 2014. Islamic State is a Salafist Sunni Muslim organisation which views Shi'ite Muslims as religious heretics who must be defeated militarily and politically. Since 2010, Islamic State had operated in Iraq and Syria. In June 2014, its leader, Abu Bakr al-Baghdadi, proclaimed himself the successor to the Prophet Muhammad and, as a consequence, the political and military leader of the worldwide Muslim community. In September 2014, the principal Islamic State spokesman, Abu Muhammad al-Adnani, exhorted followers of Islamic State to target westerners, Christians and apostate Muslims in an English language Islamic State publication which said: "At this point of the crusade against the Islamic State, it is very important that attacks take place in every country that has entered into the alliance against the Islamic State, especially the US, UK, France, Australia and Germany. Rather the citizens of crusader nations should be targeted wherever they can be found. … Every Muslim should get out of his house, find a crusader, and kill him. It is important that the killing becomes attributed to patrons of the Islamic State who have obeyed its leadership."
As will be seen, some of these sentiments came to be echoed in communications between the Offender and others in 2015. Events from May 2015
Although the offence period for the Offender does not commence until 6 August 2015, events occurred before that day which are relevant to the facts upon which he is to be sentenced.
On 21 May 2015, a video clip was uploaded to YouTube entitled "Who Do You Love? Global Messenger Day Sydney Australia". The video clip was about Muslims in Sydney attending lectures and sermons for Global Messenger Day. In the video, the Offender and another person were sitting next to each other in a lecture.
The Offender (and others) were part of an online "WhatsApp" closed chat group where they shared views and discussed ideas supportive of Salafist Islam and Islamic State. The chat group was called "The Bricks" (hereafter "the Bricks Forum") and the profile picture of this group was an Islamic State flag.
On 26 June 2015, the Offender posted the following message on the Bricks Forum: "Beheading in France, 25 dead in suicide bomb by IS in shia Kuwait mosque and 37 dead at Tunisia beach. It's going off. Lol."
On 27 June 2015, another person posted on the Bricks Forum, pictures of Australian Defence Force personnel disembarking from a bus. In response to the pictures, the Offender posted: "Omg. May Allah curse them all and destroy them to pieces."
In late June and early July 2015, a number of persons posted items on the Bricks Forum concerning the activities of Islamic State fighters and associated topics.
The Offender turned 18 years of age on 3 August 2015.
The period covered by the charge in the indictment against the Offender commences on 6 August 2015. The Offender Seeks an Islamic State Flag
On 14 August 2015, the Offender called an associate seeking the number of a person who could provide an Islamic State flag.
On 21 August 2015, the Offender called this person and arranged to see him. On 26 August 2015, the Offender and an associate went to the person's home and met with him. The Offender asked this person to make him an extremist flag, a "Dawlah flag" or Islamic State flag. The person did not want to make the flag for the Offender, but did not wish to be rude so he asked the Offender to bring material back to him, believing that the Offender would not return with the material.
On 1 September 2015, the Offender purchased black material from a gift store in Lakemba. At around 5.23 pm that day, the Offender called the proposed flag maker and said to him "I swear praise be to God. Um brother I'm gunna come past and bring my jumper Bro, so that you can fix it up for me. Is that all right?" Tonight?". The word "jumper" was a reference to the black cloth to be used to make a flag. The flag maker agreed with this and the Offender said that he would call when he was outside.
Before arriving at the flag person's house, the Offender conducted counter surveillance. The Offender brought in the material which was "black and square" which the person placed to one side as he never intended to use it. As will be seen, the flag was never completed, although the Offender made further contact with the flag person about the flag on 26 and 30 September 2015. Clearly, the Offender was keen to have an Islamic State flag for early October 2015. The black cloth was located and a photograph of it is in evidence (Exhibit G). Meetings Between the Offender and Other Persons from September 2015
In late August and early September 2015, the Offender met with several persons at Lake Parramatta Park.
At around 1.30 pm on 11 September 2015, the Offender met with other persons, including Farhad Mohammad at Lake Parramatta Park. This was the only known physical contact between the Offender and Farhad Mohammad until later events, all of which occurred at the Parramatta Mosque.
Farhad Mohammad lived with his family, including an elder sister, Shadi Mohammad (who, in 2015, was 21 years old). It is clear that both Shadi Mohammad and Farhad Mohammad were radicalised and held perverse extremist views. The social media analysis of Shadi Mohammad revealed that she had been actively posting under the name "Amatallah" from January 2015 and that Farhad Mohammad was aware of her using that name. The online profile of Shadi Mohammad demonstrated extremist tendencies. I accept that Shadi Mohammad played a major role in the indoctrination of her younger brother. She was involved in the drafting of the note found on her brother's body on 2 October 2015.
As will be seen, Shadi Mohammaed left Australia on 1 October 2015 and travelled to Turkey and then Syria where she linked up with Islamic State. Investigators considered that she married an extremist in Syria and was engaged in social media postings with a view to being a high-level recruiter for Islamic State. She is said to have died in Syria in an air strike in 2016.
I am satisfied that Farhad Mohammad was radicalised by the time of his involvement with the Offender, who was also radicalised. However, the Offender's actions with Farhad Mohammad from mid-September 2015 served to reinforce Farhad Mohammad's beliefs and assist him practically to become, on 2 October 2015, a killer (and a 15-year old killer) in the evil cause which they both supported. What is described hereafter should be understood in this way. All of the interaction between the Offender and Farhad Mohammad was for sinister purposes associated with the commission of a proposed terrorist act.
At 7.37 am on 15 September 2015, Farhad Mohammad arrived at the Parramatta Mosque carrying a black sports bag and a Nike backpack. Once at the Mosque, Farhad Mohammad put the bag into an alcove of the prayer hall. At about 8.11 am, two police officers entered the Mosque and spoke briefly to Farhad Mohammad. At about 8.27 am, Farhad Mohammad left the Mosque carrying his Nike backpack, but leaving behind the black sports bag.
At 3.28 pm on 18 September 2015, the Offender entered the Parramatta Mosque. He was not carrying any bags. After praying, the Offender talked to other persons. At about 3.40 pm, the Offender left the Mosque carrying the black sports bag that had been left behind by Farhad Mohammad three days earlier.
The Offender retained the black sports bag. In the afternoon of 20 September 2015, the Offender removed the black sports bag from the boot of his vehicle and placed it on the ground. About one minute later, the Offender placed the black sports bag back into the boot. The Offender Seeks to Obtain a Firearm
At 1.42 pm on 21 September 2015, the Offender called an associate and asked for the phone number of X3. A few minutes later at 1.52 pm, the Offender called X3 and asked whether he could meet him in Greenacre that evening. X3 agreed to meet the Offender that night. At 7.36 pm, the Offender called X3 to ask for his address. During the conversation, X3 asked the Offender who he was coming with and the Offender responded that he was coming with "one of the other brothers …". Further text messages were exchanged between the Offender and X3 before X3 sent a text message at 8.01 pm that stated "Please be quick needa leave the area".
The Crown submitted that the Offender, X3 and another person met in a park that evening and that during the conversation, the Offender asked X3 "Can you get anything?" whilst turning his hands into the shape of a pistol when asking this question. X3 gave evidence at the sentencing hearing. It is not necessary to outline in detail his evidence for the purpose of making findings of fact on sentence. Having considered all the evidence bearing on this issue, including the accounts of X3 given at different times, I am satisfied to the criminal standard that the Offender held his hands in the shape of a pistol during the course of this short conversation in a park with X3 that evening. I am satisfied that the purpose of the meeting was so that the Offender could enquire as to whether a firearm could be obtained.
X3 could not provide a firearm to the Offender himself, but suggested that X2 may be able to assist.
At 8.30 pm on 24 September 2015, the Offender and another person met X2 at a chicken shop and the Offender asked X2 for a favour stating that he wanted a gun. There was no discussion of the size or type of gun. X2 did not have access to source a firearm and did not put the Offender in contact with any other person who could acquire or source a firearm.
The events involving X2 and X3 and the Offender between 21 and 24 September 2015 demonstrate clearly, and to the criminal standard, that the Offender was attempting to source a firearm to be used in a terrorist act more than a week before the tragic events of 2 October 2015. I am satisfied to the criminal standard that the Offender was seeking out a firearm at this time with the knowledge that it was to be used in a terrorist act with the intention of killing a person or persons. Events From 25 September 2015
The evidence reveals that the Offender married Sharna Perger in an Islamic ceremony a few months before October 2015. They did not cohabit in a formal sense. There were no children of the relationship, which has ceased since the Offender has been in custody. As will be seen, discussions between the Offender and Ms Perger provide considerable insight into his motivation and thought processes both before and after the murder of Mr Cheng.
At 10.26 pm on 25 September 2015, the Offender had a telephone conversation with Ms Perger, in which he told her that he would attend the home of a person to talk to him about something. When asked why he wanted to see that person, the Offender said "Do you want me to tell you everything on the phone, you want me to tell you who I want to kill tomorrow?".
At about 2.00 pm on 26 September 2015, the Offender messaged the person whom he had spoken to about the flag and asked if his "jumper" (the Islamic State flag) was ready. The person replied that he had forgotten about it, but would get back to him.
At 12.38 pm on 27 September 2015, the Offender telephoned a person and asked to borrow $200.00. During this conversation, the person told the Offender that he could lend him a maximum of $100.00. The person agreed to meet the Offender and they did so shortly before 1.00 pm that day. I am satisfied that this and later conversations between the Offender and others concerning money related to the funding of the acquisition of a firearm to be used in the commission of a terrorist act.
At 7.29 pm on 27 September 2015, a person posted a link to a video involving Abu Bakr al-Baghdadi (the leader of Islamic State who proclaimed himself Caliph Ibrahim in June 2014). In response, the Offender said: "Bro straight out this isn't smart at all speaking bout this stuff we should be more wise instead of fools coz clearly these filthy munafiqs dogs see this stuff. We should be smarter and just coz we have heat doesn't mean dats we give ourselves even more to these pigs and allahu alam [God knows best]."
At 8.53 am on 28 September 2015, the Offender telephoned a person asking for a loan of $100.00. Discussion took place as to the possible source for these funds. A short time later, a withdrawal was made from an ATM machine at Chester Hill.
Between 10.28 am and 11.41 am that day, the Offender and another person engaged in a conversation on "WhatsApp" in which the other person said "You didn't come past. Pick up the millions" to which the Offender replied "Yeah I'm gonna come past". The two men arranged to meet for prayers. Soon after, the other person sent a text message to the Offender as follows: "If you need anything let me know. Patience Allah is the best of planners Do you think you will believe and not get tested."
The Offender replied with a message in Arabic which, when translated, stated "Glory to God may God reward you with good".
At 10.41 am on 29 September 2015, another person used the Offender's car to drive to the home of a person in Merrylands ("TA"). The person then talked to a number of unidentified males outside the front of the Merrylands house.
At 10.58 am on 29 September 2015, Ms Perger called the Offender and told him they were at the Mosque and that: "[A person] said to call your brother and tell him to come - send me your brother's number so that he can call your brother to tell him to come outside when he gets there 'cause he has to give him money or something." The wife of the person could be heard in the background saying "Don't say it over the phone".
At about 11.00 am, the Offender called his own brother and told him that a person would come past to give him the money that the Offender owed him.
In the early afternoon of 29 September 2015, Farhad Mohammad and Shadi Mohammad entered the Westfield Shopping Centre at Parramatta. Farhad Mohammad carried a Nike brand sports bag. Soon after, Shadi Mohammad entered the STA Travel Agency whilst Farhad Mohammad was seated on a bench waiting for her. About 90 minutes later, Farhad Mohammad and Shadi Mohammad left the Westfield Shopping Centre in Parramatta. This visit related to Shadi Mohammad's plan to leave Australia bound for the Middle East on 1 October 2015.
At 9.20 pm on 29 September 2015, the Offender sent a text message to a person saying "Yeah of course I believe I'm just paranoid Akhi [brother]. This stuff is doing my head in Wallah [I swear to God]. Gonna lose it". After further text messages between the two men, a conversation took place between them in which the Offender said at one point "I've been buying stuff, bro".
At 7.22 am on 30 September 2015, the Offender sent a message to the flag person over "WhatsApp" asking "How did it go? Finished yet Akhi [brother]?". It is clear that the Offender's interest in obtaining the Islamic State flag was intensifying at this time.
At about 2.00 pm that day, an associate of the Offender posted two photographs on the Bricks Forum. One of the photographs appeared to be of a male in civilian clothing pointing a gun at the head of a policeman and the other photograph was a man in civilian clothing pointing a gun towards a man in a military uniform. These photographs were posted with the caption "Dawla [Islamic State] Assassinations".
At 2.46 pm on 30 September 2015, the Offender sent a coded SMS to X2 seeking to arrange a meeting that night. At 8.00 pm, the Offender met with X2 and another person at a chicken shop in Granville. X2 told the Offender that he could not source a firearm for him. At 9.22 pm, the Offender received an SMS providing a telephone number for another person. Events on 1 October 2015
Between 11.06 am and 12.08 pm on 1 October 2015, the Offender and other persons engaged in a conversation on the Bricks Forum about Palestinians in Israel and their failure to act. At the end of the conversation, a number connected to the Offender stated "Until they drop that filthy flag and lift up the flag of Tawheed Allah we'll give them victory Inshallah".
On 1 October 2015, there was substantial interaction between the Offender and Farhad Mohammad at the Parramatta Mosque. It is clear that their expected activity was coming to a head. It was submitted for the Crown, and I accept, that the increased sense of urgency arose from Shadi Mohammad's planned departure on 1 October 2015. I accept that there was concern that her departure may attract the close attention of the authorities so that the commission of the planned terrorist act may be thwarted.
At 12.02 pm on 1 October 2015, Farhad Mohammad arrived at the Parramatta Mosque carrying a black Nike backpack. At 12.42 pm that day, the Offender sent an SMS message to another person saying "Asalamu alaykum [peace be upon you] can you ask ur boss wen im getting my $$$".
At 1.00 pm, the Offender arrived at the Parramatta Mosque carrying a black sports bag and being followed by Ms Perger. The Offender entered the female entry of the Mosque and left the black sports bag in a location not covered by CCTV.
At about 1.15 pm, the Offender, Farhad Mohammad and another person stood together inside the Mosque with a large group for prayer. At 1.36 pm, the Offender waved goodbye to Farhad Mohammad and left the Mosque without the black sports bag he had when he had entered the Mosque.
At 2.31 pm, Farhad Mohammad collected the black sports bag that had been left behind by the Offender and left the Mosque carrying that bag. Twenty-five minutes later, Farhad Mohammad returned to the Mosque without the black sports bag.
At 2.51 pm, Farhad Mohammad met with his sister, Shadi Mohammad, near the Old Parramatta Library and gave her the black sports bag. Shadi Mohammad then got into a taxi out the front of Civic Place and was driven to Sydney International Airport. When Shadi Mohammad arrived at the International Airport, she was carrying the black sports bag and a bag with black polka dots.
Other evidence before the Court establishes that Shadi Mohammad left Australia on a flight that day bound for Turkey. The evidence reveals that she then travelled to Syria where she married an Islamic State fighter. According to an announcement made by United States authorities, Shadi Mohammad died in an air strike in Syria in 2016.
As noted earlier, the evidence demonstrates that Shadi Mohammad was entirely radicalised. She played a part in the drafting of the note found on the body of her brother after he had shot Mr Cheng. I am satisfied that Shadi Mohammad had played a major role in the radicalisation of Farhad Mohammad. I have found earlier, that her departure from Australia had led to an accelerated plan to carry out the terrorist act (see [65] above). I am satisfied that she knew that her 15-year old brother was to play a part in the terrorist act. It is highly likely that she departed Australia on 1 October 2015 in the knowledge that it would be difficult, if not impossible, for her to depart Australia after her brother had committed the planned terrorist act.
It is clear that Shadi Mohammad expected that those who remained in Australia, including the Offender, would take all necessary steps so that the terrorist act could be carried out by her younger brother. Clearly, her presence in Australia was not considered to be an integral part of the implementation of the terrorist act.
I pause at this point in the narrative to observe that it is difficult for decent and right-minded members of the community to understand the twisted and evil minds at work where a 21-year old woman is prepared to have her 15-year old brother commit a homicidal atrocity in the likely knowledge that he would be captured or die in the process. Acts and thoughts of this type are the antithesis of civilised religious beliefs in a modern democratic society such as Australia.
At 2.56 pm on 1 October 2015, Farhad Mohammad returned to the Parramatta Mosque.
At 9.31 pm on 1 October 2015, the Offender and another person attended the vicinity of the home of TA at Merrylands. Between 9.00 pm and 10.30 pm that evening, the Offender made five attempts to call TA using Ms Perger's mobile phone. I am satisfied that this attempted contact related to the supply of the firearm from this person against the background of the Offender's unsuccessful attempts to obtain a firearm from X2 and X3.
At 10.38 pm, the Offender called TA and told him that he had attended his house earlier that evening. TA said he would call the Offender the following day. The Offender insisted that TA see him that night. Clearly, the Offender wished to progress the supply of the firearm urgently.
Between 11.03 pm and 11.38 pm, the Offender and another person exchanged SMS messages during which the Offender indicated that he was stressed. The Offender was under pressure concerning the approaching terrorist act, but was clearly not deterred from proceeding further. Events on 2 October 2015
On the morning of 2 October 2015, the Offender sent SMS messages and made phone calls in an effort to advance the supply of the firearm to him.
At 9.21 am, the Offender and Ms Perger had a conversation in the Offender's vehicle, in the course of which he said "it's dangerous stuff" and "it's got to be done" and "whatever I do [Allah] will accept it".
Between 9.38 am and 10.17 am, the Offender continued to attempt contact with TA for the purpose of obtaining a firearm.
At 9.58 am, Farhad Mohammad entered the Parramatta Mosque carrying a Nike backpack on his back.
Between 10.17 am and 10.29 am, the Offender and TA exchanged text messages. At 10.18 am, the Offender sent a message to this person as follows: "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."
Soon after, the Offender parked his vehicle in front of TA's address at Merrylands. The Offender left the vehicle and returned to it some 10 minutes later and then drove home.
Shortly before 11.00 am, the Offender and Ms Perger were speaking by telephone. The Offender said that he could not meet someone after Friday prayers "cause I've got something to do".
Soon after, the Offender and Ms Perger spoke by telephone again and the Offender said he had "… something to do after praying". The Offender Speaks at Length to Farhad Mohammad at the Parramatta Mosque
At 11.31 am, the Offender entered the Parramatta Mosque and sat with Farhad Mohammad. The Offender, Farhad Mohammad and another person spent the next two hours in each other's company and appeared to be engaged in conversation.
At 12.21 pm, another person arrived at the Parramatta Mosque by vehicle. He parked next to the Offender's vehicle at the front of the building and entered the Mosque. Further Contact Between the Offender and TA Concerning the Supply of a Firearm
Between 12.58 pm and 1.20 pm, TA attempted to make six calls to one of the Offender's services from a public telephone.
At 1.10 pm, the Offender and this person spoke by telephone. In the course of the conversation, TA said "… I'm just had - had a job on and I want you just come quote it for me, man".
At 1.19 pm, the Offender received a call from TA and they agreed to meet at Jones Park.
At 1.30 pm, the Offender left the Parramatta Mosque in his Toyota Camry sedan and followed a silver Toyota Corolla driven by another person.
At 1.35 pm, the Offender and the other person arrived at the public carpark at Jones Park. The Offender walked across a grassed area where he met TA, the expected firearm supplier, who was carrying a black satchel bag across his body and a Foot Locker plastic shopping bag. A Disputed Conversation Between the Offender and TA
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.
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.
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.
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?".
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.
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.
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.
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.
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.
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.
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.
At about 1.42 pm, the Offender, TA and another person left their vehicles parked in the street at Merrylands and met, engaging in conversation.
At 1.49 pm, the Offender and TA returned to the Offender's vehicle and the latter collected a black satchel bag, a Foot Locker brand plastic shopping bag and a black plastic shopping bag from the front passenger seat. He then walked away carrying the bags, heading towards his address in Merrylands.
At 1.50 pm, the Offender and another person travelled in separate vehicles to Merrylands Park where they parked parallel to each other and remained seated in their vehicles. Soon after, the Offender spoke to the other person saying "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 Offender well knew that the planned terrorist act to be carried out that day would be linked to the Parramatta Mosque and those who attended it.
The Offender and the other person got out of their vehicles and walked into the park where they stood together and spoke to each other for five minutes before returning to their vehicles where the conversation continued.
At 2.08 pm, TA rode a bicycle into the Merrylands Oval carpark and met with the Offender. TA had a black satchel bag over his shoulder and across his body and he engaged in a short conversation in the carpark with the Offender.
At 2.12 pm, he left the carpark on his bicycle and the Offender and the other person drove from Merrylands towards Wentworthville in a convoy.
At 2.17 pm, the Offender and the other person parked their cars in the vicinity of the Offender's home in Wentworthville and at 2.40 pm, the Offender walked towards the other person's vehicle and retrieved an object from the front passenger side before entering the building in which the Offender's home was situated.
At 2.45 pm, the Offender drove his vehicle from Wentworthville to the carpark at Merrylands Oval. At 2.55 pm, TA returned on his bicycle to the Merrylands Oval carpark with a white plastic bag hanging from the right handle bar of the bicycle. He rode his bicycle up to the driver's door of the Offender's car and lent into the window. TA removed a white plastic bag from the front driver's window of the Offender's car before both men left the park.
As I noted earlier, I am satisfied that all of these movements related to the provision of a firearm by TA to the Offender. The description of the circuitous movements of the persons involved, and some of the things said by them in the process, is strongly supportive of these movements of the Offender being associated with the crime for which the Offender is to be sentenced. That said, as noted earlier, I am not satisfied beyond reasonable doubt that these activities give rise to a finding that there was an earlier but rejected supply of a firearm from TA to the Offender before the supply of the Smith & Wesson .38 revolver used by Farhad Mohammad. I am satisfied that these movements involved the supply of the Smith & Wesson .38 revolver, but no further finding can be made to the criminal standard as sought by the Crown. The Offender Meets with Farhad Mohammad at the Parramatta Mosque and Supplies Him with the Revolver
At 3.05 pm, the Offender arrived at the Parramatta Mosque where he met with Farhad Mohammad. By this time, the Offender was in possession of the loaded Smith & Wesson .38 revolver.
At 3.34 pm, the brothers of the Offender and Farhad Mohammad arrived at the Mosque and met with the Offender and Farhad Mohammad. At 3.40 pm, the Offender, Farhad Mohammad, their brothers and two other males prayed together and then sat together and talked.
At 3.46 pm, the two brothers left the Mosque leaving Farhad Mohammad and the Offender together.
At 3.48 pm, the Offender walked out of the Mosque to his vehicle which he had parked alongside the Mosque entrance. The Offender got into the front driver's seat and remained there for a short time. He then left the vehicle and appeared to be holding or adjusting something in his left hand. The Offender then walked towards the entrance of the Mosque holding his left hand under his robe. All of this is recorded on CCTV footage which allows a direct assessment of the appearance and demeanour of the Offender. It is entirely clear that the Offender is holding his left hand in an awkward fashion under his robe. At this time, the Offender was carrying the Smith & Wesson .38 revolver into the Mosque under his clothing for the purpose of giving it to Farhad Mohammad.
At 3.58 pm, the Offender and Farhad Mohammad entered the female-only prayer hall together. Farhad Mohammad was carrying a black Nike brand backpack. As he entered the female prayer room, the Offender removed his mobile phone from his 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 meeting that the Offender handed the Smith & Wesson .38 revolver to Farhad Mohammad. It is clear that the two of them were in the female prayer room for an extended time. I infer that there was conversation between them in which the acts to be undertaken by Farhad Mohammad were discussed.
I am satisfied to the criminal standard that the Offender was well aware that Farhad Mohammad had been radicalised and that the loaded firearm was being provided to him for the purpose of a serious act of violence being carried out soon after on the street in Parramatta. It is proper to conclude that the Offender was aware of the contents of the note possessed by Farhad Mohammad. This note pointed to an attack directed to a law enforcement agency. The New South Wales Police Headquarters was within walking distance of the Parramatta Mosque as the Offender well knew. The Offender was aware that the attack was to take place in the vicinity of the New South Wales Police Headquarters.
This conclusion is fortified by the Offender's subsequent movements when he left the Mosque. He drove past the Police Headquarters in Parramatta taking a route which he had not taken before. I infer that the Offender expected that an act of serious violence was to take place in the vicinity of Police Headquarters. In circumstances where Farhad Mohammad had been provided with a loaded firearm, I infer that the Offender was aware that Farhad Mohammad intended to carry out the killing of a person who was associated with the New South Wales Police Headquarters in a public street with the motivation for the killing being the perceived advancement of the extremist religious beliefs which they shared.
At 4.04 pm, the Offender left the female prayer room on his own and, after collecting his mobile phone, he left the Mosque and returned to his vehicle whilst using his mobile phone. Farhad Mohammad Leaves the Mosque and Walks to Police Headquarters Where he Kills Curtis Cheng
At 4.06 pm, Farhad Mohammad entered the main prayer hall and commenced praying. A short time later, he entered another section of the Mosque and changed into a "dishdasha" (a long black robe traditionally worn by Arab men).
At 4.10 pm, the Offender got into his vehicle which had been parked near the entrance to the Mosque. He turned the vehicle around and reverse parked into the same car space so that the vehicle was then facing Marsden Street. Whilst seated in the car, the Offender called another person and told him that he wanted to come past and pay the $100.00 he owed him. I accept that this conversation (and other earlier conversations about money) were associated with the obtaining of the firearm which had been provided to Farhad Mohammad.
At 4.12 pm, the Offender drove away from the Parramatta Mosque travelling along Marsden Street and into George Street and then into Charles Street, Parramatta.
At around this time, Farhad Mohammad left the Mosque and, as he exited, he looked up at the CCTV camera which was located near the entry and held up his right hand with his index finger raised. This one figure salute has become associated with Islamic State and is a reference to the "tawheed" ("there is no God but Allah").
At 4.13 pm, Farhad Mohommad's brother called the Offender and asked if he knew were Farhad Mohammad was. The Offender replied that he had left Farhad Mohammad in the Mosque 30 minutes before and that he did not know where he was. The Offender said that he was on his way to meet his wife.
At 4.14 pm, the Offender drove past the New South Wales Police Headquarters in Charles Street. The Offender had never before been observed travelling this route after leaving the Parramatta Mosque.
At 4.24 pm, Farhad Mohammad walked in a southerly direction along Charles Street, Parramatta. He then paced back and forth along the footpath parallel to the main entry doors of Police Headquarters. Farhad Mohammad walked up behind several people who had exited that building before turning away and walking back to the main doors of Police Headquarters.
At 4.30 pm, Mr Cheng walked out of Police Headquarters. Farhad Mohammad fell in behind him and walked until he was very close and then shot Mr Cheng to the back of the head. Mr Cheng fell to the ground and was killed instantly.
The weapon used by Farhad Mohammad was not licenced in Australia and there are no records that it was imported into Australia legally.
After murdering Mr Cheng, Farhad Mohammad strode back and forth past the entrance to Police Headquarters. He stopped and stood on the footpath facing the entrance and fired the revolver directly at the building and into the air a number of times whilst yelling "Allahu-akbar" ("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 Mohammad was shot dead.
When Farhad Mohammad's clothes were searched, located inside a pocket of the black robe he was wearing was a handwritten note that read as follows: "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, 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 [Islamic State]. Baqiya [part of the Islamic State motto 'Remaining, enduring and expanding'] Bi'dnillah [By the permission of God - often used to express a willingness to undertake an action]."
During the search of Farhad Mohammad's home after the murder of Mr Cheng, a torn-up note was located in Farhad Mohammad's room. The wording on that note appears almost identical to the note that Farhad Mohammad wrote and carried with him when he committed the terrorist act. Handwriting analysis confirmed that Shadi Mohammad wrote the note located in the bedroom. Communications by the Offender with Other Persons After the Murder of Mr Cheng
The thought processes and motivation of the Offender may be discerned from statements he made to various persons after the murder of Mr Cheng.
At 5.09 pm on 2 October 2015, the Offender called a person and the conversation included the following: "ALOU: Cuz, can you come down to mine real quick. MALE: Yeah. I will, 'cause I'm going to the gym now anyway. ALOU: Yeah, because, cuz, I don't know I feel really, really sick, bro, um, 'cause I swear I'm sick, brother. … ALOU: Alright, call me - call me when you're - when you're down. I'll just come down God willing. I'll give you money. MALE: Peace be upon you. ALOU: Peace be upon you too."
At 5.24 pm, the Offender called this other person to arrange the handing over of money.
At 8.56 pm, the Offender and Ms Perger heard a commercial radio station broadcast which included a statement by Andrew Scipione, the New South Wales Commissioner of Police, in relation to the murder of Mr Cheng. Ms Perger stated "Good" and, as the statement continued, she went on to say "Job's done then". The Offender could be heard speaking and humming in the background.
At 11.27 pm, the Offender received a "WhatsApp" message from an associate enquiring as to the whereabouts of Farhad Mohammad. The Offender responded: "Wa Alaykum salam [and upon you be peace] akhi [brother] no way! Subhanallah [glory to god] inshallah [god willing] everything is alright tell him not to stress akhi he's a man inshallah everything is well. Sus out parra mosque maybe he's there allahu alam [God knows best]"
On 3 October 2015, the Offender met with persons who had been associated with the events concerning Farhad Mohammad the previous day.
At 8.34 pm that day, a conversation took place between the Offender and Ms Perger in the Offender's vehicle which assists an understanding of the Offender's knowledge and role in the events of the previous day. The Offender said: "He goes to me she should have stayed. I said Walla akhi [I swear to God brother] I know its sad but wallah [I swear to God] its better to go I know she's in good hands ... He goes I'm happy to get a gun ... how easy is it? I said wallah Allah knows best. He goes how will I make 'Istishhad' [martyrdom] ... he said how do I make an alam [flag] where do I get the alam [flag] How do I get an abaya ... I know he had a black one a long one ... I said Allah knows best and I got teary because [inaudible], he was crying he was crying my brother my brother . His eyes went red, he only found out properly this morning, martyr he's a warrior, he's martyred in the path of Allah, he's killed in the path of Allah."
The Crown submitted that the statements by the Offender in the preceding paragraph comprised something of a "terrorist's checklist" with reference being made to a firearm, the Islamic State flag and "martyrdom" (of Farhad Mohammad) in a manner which sheds considerable light upon the Offender's motivation, knowledge and involvement in the offence. I accept this submission.
The proper construction of these words is that the Offender had been discussing the firearm with Farhad Mohammad and had been taking steps to obtain an Islamic State flag for a purpose associated with the terrorist act, although it had not been completed by the time of that act.
Between 9.45 pm and 10.15 pm, the Offender and Ms Perger went to the KFC drive-through at Granville during which they discussed the murder of Mr Cheng: "ALOU: "Ah brother you're a soldier, Oh my god Allahu Akbar, thats beautiful footage bro, that's beautiful footage. PERGER: I'm telling you, you have to watch it before it gets deleted. PERGER: You actually see it all happen, you see where he is last standing, that's where he drops, Oh ya Allah my heart you know me I was about to cry I was watching it and I was about to cry. ALOU: Oh my heart [indistinct conversation]. ALOU: It makes me so happy man, see how he drops? did you see how much fight he had in him [indistinct conversation]. ALOU: He was dressed in the clothes of the [inaudible]. He had probably just finished reading Qu 'ran 100%. PERGER: I know 100% they're going to question you. ALOU: They know who I am, they know me, I'm on the radar ... ASIO … they know what I stand for they know everything . PERGER: I'm telling you, you 're better to be at home when they do it. If they do hell. ALOU They will accuse me of accessory to murder and terrorism ... they will go hard ...".
Here, the Offender was praising Farhad Mohammad and expressing satisfaction as to what he had done as well as foreshadowing scrutiny of himself by law enforcement agencies.
At 10.52 pm, on 4 October 2015, the Offender had a lengthy telephone conversation with Farhad Mohammad's brother who was very distraught over his brother's death. The Offender tried to comfort him. During the conversation, they had the following exchange: "ALOU: Just remember - remember this, I swear he left his life for the sake of God. MOHAMMAD: Oh God, oh God. ALOU: He left his life. He gave his life for God. I swear he wanted to meet God, I swear, just remember that he died for the sake of God and he will be in Paradise with the Prophets and with the Messenger of God. May God be pleased with him, and with God, God himself and God said God will forgive his sins. God will give him Paradise because that's what the reward is for the martyr."
In conversations between the Offender and Ms Perger on the evening of 4 October 2015, the Offender once again described the actions of Farhad Mohammad in shooting Mr Cheng in a manner which indicated support for that action. Later that evening, the Offender was heard to say to Ms Perger: "I remember the lecturer ... the brother who gave it was very good ... All the boys were there ... we us boys disagree with their perspective ... We want an Islamic leader like, overseas, like the leader ... Al Baghdadi ...They don't think it's through jihad, they think it's through talking, they don't think fighting is the way ...".
At 2.46 pm, on 5 October 2015, the Offender called Farhad Mohammad's brother and they discussed the murder of Mr Cheng with both men praising Farhad Mohammad for his actions. The Offender participated in a further telephone conversation with another person along similar lines later that afternoon. Later that evening, the Offender discussed the murder of Mr Cheng with Ms Perger and said that the case had "been given to the AFP … the one's that raid Muslims". In the course of the conversation, the Offender said at one point "It doesn't matter we watched the video of our boy shoot someone".
Further communications took place between different persons on 6 October 2015. Execution of Search Warrants and Arrest of the Offender on 7 October 2015
On 7 October 2015, search warrants were executed at various premises including the Offender's family residence at Wentworthville. On 8 October 2015, the handsets of Farhad Mohammad and Shadi Mohammad were found in the common toilet block attached to the unit block at Wentworthville in which the Offender's family resided. The phones were found wrapped in plastic and concealed under a locked door to an external toilet.
The Offender was arrested on 7 October 2015 and has remained in custody since then. The Offender's Comments to Others Between 10 and 15 October 2015
On 10 October 2015, the Offender talked to Ms Perger during a break in an interview which was being undertaken. The Offender talked about things that had been put to him by investigators including reference to $600.00 in cash and a listening device being in the vehicle. He stated that the police were doing forensics but they had nothing or he would have been charged by then. The Offender also stated that it was a good sign that TA had been released without charge. Ms Perger then assisted the Offender to record the following voice message on her mobile phone: "Brothers, tell Abu Mussab, Abu Mussab's wife that I give you [indistinct] for bringing you here. Give her my salaams, give Abu Mussab my salaams, I love him so much wallah I love him so much inshallah, can't wait until the control order finishes. Tell all the brothers, all the brothers, all the brothers who love Allah, who claim to love Allah, that I said to fear Allah, and by Allah if you do not make dua for me for your brother who is in the hands of the kafir [unbeliever] I will take mahak [?] on the day of judgement. Yes. So the dua is to call Allah by his attributes to call Allah by his name say Allah [indistinct] Rahim. That's the best method to do Allah by him and to Allah, make sure to tell Allah don't let them charge me, don't let them charge me, don't let them charge me, make them release me as soon as possible, make them release me as soon as possible, make them release me as soon as possible and to destroy the investigation, destroy all of it. And make the dua for me, inshallah I love you all for the sake of Allah. Salaam Alaykum [Peace be upon you]".
On 11 October 2015, whilst attempting to explain why he drove past the Police Headquarters' building after leaving the Mosque on 2 October 2015, the Offender said: " ... passing the Police Headquarters ... you thought ... I went that way to see if it's clear. Is that what you said? Look, even if it wasn't clear, what am I go in' to do? What, am I go in' to call Farhad? He didn't have a phone anyway. So what am I goin' to do?"
On 15 October 2015, a conversation between the Offender and another person took place in which the Offender said that Mr Cheng was a "copper". The Offender also indicated that the teaching of "Ibn Taymiyyah" made the killing permissible "… course … we are in dark times". Taqi al-Din Ahmad ibn Taymiyyah was a 13th-14th Century Islamic scholar who is considered to be a significant intellectual source for many hard-core radical Salafist groups. The Offender spoke of a fatwa by a Sheikh that the blood of the Kaffir halal and that "… you are allowed to kidnap the woman and kidnap the children". A little later, the Offender said during this conversation: "ALOU: But there is no evidence because a lot of people say that jihad is in - only in Afghanistan and Syria and Iraq. That's only where jihad is. ... [indistinct] ... jihad is, jihad's everywhere. All around the world. All around the world. Middle east or not Middle East. OTHER PERSON: Mm. ALOU: Allah ordered it in a lot of Ayars [Quranic verses] Allah, you know, in the Prophet's, sallallahu alaihi wasallam, [may Allah send prayers and peace upon him] times ... [indistinct] ... in the Prophet's sallallahu alaihi wasallam times it was fahrd [compulsory] ..."
The Offender went on to say that: "... if the other brother didn't get charged with terrorism I'm goin' to be really angry ... it was 'cause he was connected - he had links to organised crime and ... but ... that was from his Jahaliya [ignorance] but then he became religious. He ... left the game, you know ... And he got onto the deen but he's still got the links." The Offender continued: "Look only if they get fingerprints then we're gone. Done ... Allah will deal with it. I don't think they did". The Offender was asked if the police had taken his fingerprints. The Offender responded: "They take it but ... yeah it was cleaned, it was clean." The other person repeated: "It was clean?". . The Offender responded: "Yeah".

Conclusions With Respect to Areas of Disputed Fact

With respect to the principal areas of factual dispute at the sentencing hearing, I record my findings as follows.
I am satisfied beyond reasonable doubt that the Offender was making attempts to obtain a firearm for the purpose of it being used in a terrorist act from about 21 September 2015. He made requests to two persons in this respect before ultimately coming into contact with TA who provided the Smith & Wesson .38 revolver on 2 October 2015. The Offender's efforts in this regard were persistent and ultimately successful.
I am satisfied beyond reasonable doubt that the discussions which the Offender had with various persons at different times concerning money related to payment for a firearm to be used in a terrorist act.
I am satisfied beyond reasonable doubt that the Offender was seeking to have an Islamic State flag made for use in a manner associated with the commission of a terrorist act. The Offender took action in this respect on 14 August 2015 and obtained black cloth for this purpose. He followed up on this repeatedly on 21 August 2015 and 1, 26 and 30 September 2015. The fact that the Islamic State flag was not obtained by 2 October 2015 was not for want of trying by the Offender. In the end, the time had come for the terrorist act to happen and the flag was not ready. However, I am satisfied that the Offender's plan was to have the flag as a prop for use during the performance of the terrorist act to be carried out by Farhad Mohammad.
With respect to the disputed telephone conversation between the Offender and TA on the afternoon of 2 October 2015, I am not satisfied beyond reasonable doubt that there was an earlier provision of a firearm to the Offender which was rejected before the ultimate provision of the revolver used in the terrorist act. There were movements and conversations between various persons in the early afternoon of 2 October 2015 that demonstrate clearly that the supply of a firearm was involved in that process, with the firearm to be used for a serious criminal purpose given the counter surveillance measures being undertaken by those involved. However, I am not in a position to make a finding that another firearm was supplied but rejected. The appropriate finding is that the Smith & Wesson .38 revolver was supplied by TA to the Offender with the Offender knowing well that the weapon was to be provided soon after to Farhad Mohammad.
I am satisfied to the criminal standard that the Offender well knew at that time that the firearm was to be used that day in the commission of a terrorist act in which a person or persons were likely to be killed.

Some Sentencing Principles Applicable to Terrorist Offences

As with sentencing for all Commonwealth offences, the provisions of s.16A Crimes Act 1914 (Cth) are to be applied in sentencing the Offender.
A number of principles have been identified by Courts in Australia and the United Kingdom with respect to sentencing for terrorist offences.
The primary considerations on sentence for terrorist offences are the protection of the community, the punishment of the offender, the denunciation of the offending and both specific and general deterrence: R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691 at [92]; Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360 at [274]; R v Khazaal [2009] NSWSC 1015 at [47].
Subjective circumstances and mitigating factors, including considerations of rehabilitation, are to be given less weight: R v Lodhi at [89]; Lodhi v R at [274]; R v Khazaal at [41]; DPP (Cth) v Besim [2017] VSCA 158 at [112]-[113].
The religious and ideological motivation of an offender is relevant to the issue of community protection, as well as to the assessment of the objective gravity of the offence: R v Kahar [2016] 1 WLR 3156; [2016] EWCA Crim 568 at [19].
Where it is not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance: R v Lodhi at [82]-[83], [88]; R v Elomar and Ors (2010) 264 ALR 759; [2010] NSWSC 10 at [93]; Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 at [591].
Weight must be given to the need for general deterrence even if the force of ideological or religious motivations are such that deterrence may not be effective: R v Lodhi at [91]-[92]; Lodhi v R at [87]-[88]; R v Barot [2007] EWCA Crim 1119 at [45]; DPP (Cth) v Fattal [2013] VSCA 276 at [169]; DPP (Cth) v MHK [2017] VSCA 157 at [52]-[53].
Whilst youth is relevant to determining the weight to be given to general deterrence and denunciation in the sentencing equation, its weight is diminished quite measurably in terrorist cases where the offender participates in, plans or carries out actions of extreme violence. The protection of society, and the upholding of its most fundamental values, necessitates that in terrorist cases, the sentencing considerations of general deterrence and denunciation must be given primacy above the ameliorating effect of youth: DPP (Cth) v MHK at [66]; R v Khalid and Ors [2017] NSWSC 1365 at [109]-[113], [270].
In considering the nature and gravity of terrorist offences, courts in Australia have utilised a number of factors referred to by the UK Court of Appeal in R v Kahar at [19]: R v Elomar at [62]; R v Benbrika at [564]; R v Khalid and Ors at [25]. The factors referred to in R v Kahar are: 1. the degree of planning, research, complexity and sophistication involved, together with the extent of the offender's commitment to carry out the act(s) of terrorism; 2. the period of time involved, including the duration of the involvement of the particular offender; 3. the depth and extent of the radicalisation of the offender as demonstrated (inter alia) by the possession of extremist material and/or the communication of such views to others; and 4. the extent to which the offender has been responsible, by whatever means, for indoctrinating or attempting to indoctrinate others, and the vulnerability or otherwise of the target(s) of the indoctrination, be it actual or intended.

Conclusions Concerning Objective Gravity of the Offence

I now express my conclusions with respect to the objective gravity of the offence in this case.
I am satisfied that the Offender was a radicalised supporter of Islamic State, certainly from May 2015 and, by September 2015, he wished to see a terrorist act carried out in the name of Islamic State in Sydney.
The Offender knew that Farhad Mohammad was radicalised with similar views as himself and, by September 2015, the Offender was aware that Farhad Mohammad was prepared to carry out a terrorist act involving the shooting of a person or persons in a public street.
For more than a week prior to 2 October 2015, the Offender was involved in seeking a firearm which Farhad Mohammad could use to carry out the commission of a terrorist act. After several unsuccessful attempts, the Offender obtained the Smith & Wesson .38 revolver from TA on 2 October 2015 which he provided to Farhad Mohammad.
The Offender was not acting merely as a firearm supplier for the purpose of some criminal activity. The Offender shared the extreme views of the person who was to carry out the terrorist act using the firearm. The Offender wished the act to be carried out by use of the loaded firearm which he provided to Farhad Mohammad.
Earlier in 2015, the Offender had requested that an Islamic State flag be made for him. Cloth was obtained for this purpose although the flag was not completed. I am satisfied to the criminal standard that the Offender intended that the Islamic State flag be used as a prop in the commission of a terrorist act. Although the flag was not finished, the Offender's desire to have it made reveals that his thought processes were moving well beyond bare radical expressions of views to others. The fact that the flag was not made and used on 2 October 2015 is best explained by the fact that the Offender was diverted urgently towards more direct pursuits in preparation for the terrorist act as the person required to obtain a firearm for use in that act and because of the departure of Shadi Mohammad from Australia on 1 October 2015.
This was not a terrorist act carried out with little planning and on the spur of the moment. I am satisfied to the criminal standard that Farhad Mohammad and the Offender were involved for at least several weeks in a plan to carry out an act with the precise nature of the act only becoming entirely clear in September 2015. The communications taking place between a number of people using counter surveillance and other measures indicate a process of working towards the commission of the terrorist act with Farhad Mohammad having been identified as the person who would carry it out.
The planning intensified as Friday, 2 October 2015 approached. By 29 September 2015, Shadi Mohammad was making arrangements to leave the country and she did so on 1 October 2015.
The Offender had been a significant point of contact with Farhad Mohammad and Shadi Mohammad in September 2015. It is clear, that he was a trusted associate of each of them. Although Shadi Mohammad played a part in the preparation for the terrorist act before leaving Australia (including her drafting of the note later found on her brother), she had departed the country before several critical steps were taken. It was the Offender who took those steps on 2 October 2015 as well as on earlier days.
By a somewhat circuitous and protracted process on 2 October 2015, the Offender was supplied with the loaded revolver. Within a short time, the Offender attended the Parramatta Mosque and met Farhad Mohammad. It was the Offender, and not anyone else, who was the final point of contact with Farhad Mohammad before he set out to commit the act.
The firearm provided was a revolver. It was not an automatic weapon. It was capable of being used to kill and was so used to murder Mr Cheng. Farhad Mohammad fired the revolver in an effort to shoot the Special Constables, but he himself was shot dead in the exchange of gunfire. Greater loss of life could have occurred if Farhad Mohammad had not been killed.
I am well satisfied that, by the time Farhad Mohammad left the Parramatta Mosque, the Offender knew that it was intended to use the revolver to shoot a person or persons in the vicinity of the New South Wales Police Headquarters in Parramatta.
It is clear that the Offender did nothing to dissuade Farhad Mohammad from this course. Although the Offender himself was just 18 years and two months old at the time, he well knew that Farhad Mohammad was a 15-year old youth. The Offender was aware that Farhad Mohammad was vulnerable because of his age, but he was content to send out Farhad Mohammad to commit this act. The Offender was prepared to exploit a young person as the perpetrator of a terrorist act in the knowledge that it was planned to kill a person or persons in the street, and that there was every prospect that Farhad Mohammad himself would die, as indeed happened.
Statements made by the Offender in the period before 2 October 2015 reinforce a finding to the criminal standard that he expected a person to be killed in a terrorist act. When the Offender heard what had happened, he did not express any surprise. Indeed, his comments to Ms Perger and others endorsed what Farhad Mohammad had done and appeared to celebrate the commission of the crime.
The Crown submitted that the Offender was the key person involved in a number of critical steps leading to the commission of the terrorist act, including: 1. attempts to have a radical, extremist flag made; 2. identification of persons to source the supply of a firearm; 3. sourcing and obtaining funds to purchase a firearm; 4. engaging in acts of counter-surveillance to conceal and avoid detection of his activities; and 5. supplying the firearm to Farhad Mohammad.
I accept that the Offender's conduct extended to all of these activities.
Competing submissions were made concerning the Crown argument that the Offender was a "key person" who played a lead role in the enterprise. Senior Counsel for the Offender submitted that Shadi Mohammad had played a major role and that the Offender's role was more limited. Whilst being cautious about the use of labels, I am satisfied that the Offender was a key person who played a lead role in this criminal enterprise. This was despite his youth, which did not seem to impede his capacity to be involved in an organised criminal activity exercising critical functions.
By reference to the factors mentioned in R v Kahar (at [171] above), I express the following findings: 1. there was a significant degree of planning involved in this offence with the Offender being fully committed to the carrying out of a terrorist act - there was a level of research and complexity involved although some of the actions were not especially sophisticated; 2. the Offender was engaged intensively in steps to aid and abet the commission of the terrorist act from September 2015 with his involvement in this respect dating back to his efforts to obtain an Islamic State flag in August 2015; 3. the Offender was deeply radicalised from May 2015 (if not before) and the depth of his radicalisation is demonstrated by his fixed and entrenched views which persist at present with no sign of change; 4. although Shadi Mohammad was the principal agent of the radicalisation of Farhad Mohammad, the Offender's contact with him prior to and on 2 October 2015 involved reinforcement of Farhad Mohammad's beliefs by the Offender before the youth was sent out with the loaded revolver to carry out a terrorist act.
The Offender is to be sentenced for aiding, abetting, counselling or procuring the commission of the offence. It is not a universal principle that the culpability of an aider and abettor is less than that of the principal offender. Much will depend on the circumstances of the case: GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at 209 [23]. The Offender was a very active planner and participant in this offence. Although he is liable as an aider and abettor, the principal offender was but 15 years old who could not have committed the terrorist act unless equipped by the Offender and then further encouraged to do so. This is a case where the moral culpability of the aider and abettor is close to if not at the same level as the principal offender.
Although the offence to which the Offender has pleaded guilty may encompass a wide degree of activity, I am well satisfied that this offence occupies a very high level of objective gravity. The Offender was involved in the planning of the act in an intensive way and obtained the firearm which he furnished to the planned juvenile killer who then used it for that purpose. The Offender's involvement in this offence is not remote or peripheral from the terrorist act itself. Rather, the Offender's involvement placed him next to the killer himself, both temporally and in his acts which assisted the crime. Unless the Offender had obtained the firearm and provided it to Farhad Mohammad, this crime could not have been committed.

The Offender's Subjective Circumstances

The Offender was born on 3 August 1997. As already mentioned, he was 18 years and two months of age at the time of the offence. He is now 20 years old.
I have mentioned some of the Offender's family history earlier (at [19]). The Offender attended Wentworthville Public School and Merrylands High School. He finished Year 10 when in juvenile detention. He was an average student, but did not return to school after his juvenile detention. Upon leaving school, he worked briefly as a removalist and then did labouring work with friends on construction sites.
The Offender has a criminal history. On 28 March 2013, he was dealt with at the Parramatta Children's Court for an offence of robbery in company where he was placed on probation for 12 months.
On 7 March 2014, the Offender appeared at the Parramatta Children's Court on two counts of robbery whilst being armed with an offensive weapon in relation to which he was sentenced by way of a control order for 14 months with a non-parole period of four months concluding on 13 March 2014, to be released subject to the supervision of the Department of Juvenile Justice.
According to the Offender's criminal history, offences of possessing an unauthorised prohibited firearm and being in custody of a knife in a public place were taken into account on sentence imposed on 7 March 2014. It may be taken that these items were involved in the offences for which the control order was made at the Parramatta Children's Court on that day.
On 30 June 2014, the Offender was dealt with without conviction at the Fairfield Local Court upon charges of unlicensed driving and negligent driving.
On 21 January 2015, the Offender was sentenced to 80 hours community service for an offence of robbery in company committed in October 2014.
On 9 November 2015, the Offender appeared at the Parramatta Local Court upon a charge of driving whilst suspended for which no other penalty was ordered, but a period of three months' disqualification was ordered. This offence was committed on 18 September 2015 during the period covered by the charge for which he is to be sentenced. Department of Juvenile Justice Report Concerning the Offender
A Department of Juvenile Justice report dated 14 January 2015 was tendered in the Offender's case on sentence. I have made brief mention of this report earlier (at [20]). This report provides some background to the Offender. The report noted that the Offender had been supervised by the Department of Juvenile Justice at Blacktown since 14 March 2014. He was referred to attend a group-based cognitive behavioural intervention program designed to reduce violence which he attended on a weekly basis from April to November 2014. The Offender's attendance and engagement with the program appeared to be good. He completed the program in November 2014 as it was felt that he would not progress any further.
The report noted that the Offender was not engaged in school with him attributing his non-attendance to a poor relationship with the teachers and wanting to spend time with his peers. Employment referrals were discussed with the Offender and assistance was offered in this respect, but the Offender declined assistance and said that he would find employment through his friends. In December 2014, the Offender reported that he began employment as a labourer with a friend of his. The Offender informed the Department of Juvenile Justice officers that around the time of the offences to which the report related, he had a very negative peer group who were involved in anti-social behaviour. The Offender stated that cannabis use was a contributing factor to his offences as he wanted money to purchase cannabis.
With respect to the Offender's attitudes and beliefs, the Department of Juvenile Justice report noted that the Offender had "reported a big change in his offending thoughts since the offence occurred". He said that whilst he was in custody, "he decided to make a choice that was better for him" and that this "involved getting more involved in his religion, stopping his cannabis use and disassociating himself from his negative peer group". The authors of the report state that "It appears that [the Offender] has followed through with these changes, as there has been no escalation in his offending since August 2013, and the only offence he incurred was the driving charges".
It may be seen that the Offender has a juvenile criminal history for serious matters. It appears that, by early 2015, he was "getting more involved in his religion" in a manner which led to a reasonably optimistic view in the Department of Juvenile Justice report. However, it seems clear that the change that the Offender was undertaking at that time, based upon his religious views, was a process of increasing radicalisation which saw him becoming involved in the commission of a shocking terrorist act on 2 October 2015. Psychiatric and Psychological Reports
A report of Dr Stephen Allnutt, psychiatrist, dated 25 October 2016 was tendered in the Offender's case. Dr Allnutt examined the Offender on 18 October 2016. At the conclusion of his report, Dr Allnutt stated that the Offender did not manifest a diagnosable psychiatric condition at the time he examined him and there was no evidence of anxiety, depressive mood or psychotic disorder and no evidence of significant cognitive impairment. Dr Allnutt noted that the Offender did not manifest any major medical problems. With respect to the Offender's mental state in October 2015, Dr Allnutt noted that the Offender denied any active symptoms of a mood, depressive, anxiety or psychotic disorder around that time and that there was no evidence of cognitive impairment or a substance abuse disorder.
A report of Mr Patrick Sheehan, psychologist, dated 25 January 2018 was tendered in the Offender's case. Mr Sheehan assessed the Offender on 24 January 2018. He noted that the Offender's "discourse often became political at which point he seemed to speak in set statements, using higher formal language" with there being "elements of grandiosity during these exchanges". Mr Sheehan noted, as well, that the Offender "expressed dystopian and cynical views on Western society, with little hope that he would be released from custody at any stage".
The Offender denied to Mr Sheehan that either of his parents had been particularly religious, but he recalled that his two older brothers became more focused on Islam when the Offender was aged 15 years. The Offender asserted that his thought processes were influenced by an Australian Federal Police visit to the family home in September 2014 in connection with the alleged activities of his brother.
The Offender told Mr Sheehan that he supported Islamic State, but Mr Sheehan noted that the Offender "lacked sufficient insight to explain why he had been attracted to an interpretation of his religion that was permissive of violence". The Offender repeated to Mr Sheehan "his view that jihad was a central aspect of Islam and that to deny this would be to practice an incomplete version of the religion".
The Offender told Mr Sheehan that, since his arrest he had "changed his allegiance from Islamic State to Al Qaeda, which he feels is a more consistent version of Islam".
In terms of personality pathology, Mr Sheehan considered that the Offender exhibited a conduct disorder in childhood which would likely see him on a trajectory to manifest an anti-social personality disorder in adulthood. However, Mr Sheehan considered that the current offence and the Offender's political orientation "however destructive, does not fit cleanly into the construct of anti-social personality".
Whilst Mr Sheehan could not define this with any confidence, he said there may be some indication of narcissistic personality traits, a construct which may lend itself to the type of belief system adopted by the Offender needing to be seen as part of an important group with a need for admiration, a disregard for the feelings of others, and a sense of entitlement with grandiose fantasies of power and political importance.
Mr Sheehan observed that the Offender remained unable to express any remorse for the consequences of his behaviour. Mr Sheehan continued: "When pressed to examine the impact on the family of Mr Cheng [the victim], he would respond by listing atrocities in the Middle East where many civilians have died due to foreign incursions. His political focus may be largely a self-protective mechanism, shielding him from appreciating the scope of suffering caused by his actions."
Whilst not purporting to undertake a risk assessment, Mr Sheehan made a number of observations concerning the Offender's risk to the community. He noted that "assessing the risk of reoffending through violent political extremism remains a fledgling science at this stage due to the evolving socio-geopolitical landscape and the heterogeneity of the subject population". He noted that risk assessment is not static, but dynamic, changing over time in response to fluctuations in the factors measured, but that little more could be said with respect to the Offender at this stage, given the likely length of any sentence.
Mr Sheehan concluded his report in the following way: "Mr Alou will have the benefit of various treatment interventions in custody, with a program of behavioural reinforcement and psychological treatment. To my knowledge there is limited evidence for the efficacy of so called de-radicalization programs, but it would seem wise to attempt to engage Mr Alou in a therapeutic process to reconstruct his belief system. His exposure to credible Islamic mentors who could debate the nature of his faith with him would also seem a valuable target. The nature of his sentence will be an influencing factor in his future prognosis, with a sentencing structure that allows for hope, creating a platform for motivation." Conditions of the Offender's Custody
The Offender is housed at the High Risk Management Correctional Centre ("HRMCC") within the Goulburn Correctional Complex. There have been some incidents of misconduct since he has been in custody. A significant incident for present purposes occurred on 20 June 2017 when Correctional staff and NSW Fire Fighters responded to a cell fire lit by two other inmates at Goulburn. During this incident, the Offender made threats against Correctional staff including use of words to the effect "I will get every single one of you on the outside. I'm going to put a bullet in every single one of you". A little later he said words to the effect, "It will be like how we behead you infidels".
On 26 June 2017, the Offender pleaded guilty to a disciplinary charge arising from this incident. The Inmate Discipline Action Form with respect to the matter notes that the Offender said in mitigation "I should not have said it, I said it in anger. I have learnt my lesson". Submissions were made concerning the significance of this in the context of the Offender's unwillingness to express any apology for the present offence, an issue to which I will return.
The evidence indicated that the Offender is currently assigned a "Category AAU (un-sentenced)" security classification and that he has also been assigned an "Extreme High Risk Restricted Designation" by the Commissioner of Corrective Services.
Mr Piazza states that the Offender is currently on Stage 2 of Level 2 of the Behavioural Management Levels ("BML") which affects his level of privileges.
The Offender may apply to associate with other inmates with "AA" classification in the HRMCC and he can currently associate with a number of inmates in that facility in accordance with his behavioural management plan.
Between 7 October 2015 and 26 December 2017, the Offender has had no family visits. It was said that his mother is unable to travel to Goulburn to visit her son. There are four nominated persons with whom he may have telephone contact.
Based on the Offender's current BML, he is able to spend up to $75.00 on buy-ups each week from the inmate canteen.
Inmates at the HRMCC are permitted access to amenities including television, fridge, radio and other items depending on their BML, as well as access to library books and the computer room on request each morning. The Offender has access to amenities and recreational facilities once a day.
Although the Offender has limited personal contact with family members, he has telephone access to them and access to a range of facilities and amenities within the structured and controlled conditions of the HRMCC.
I will have regard on sentence to the Offender's conditions of custody.

Lack of Contrition and Remorse and Prospects of Rehabilitation

The Offender has not expressed any contrition and remorse for his crime. This remains the position even though he has pleaded guilty to the offence.
This case is unlike other terrorist offences in Australia. Tragically, in this case, Mr Cheng died violently in a public street. As will be seen, the Court received a victim impact statement from Mrs Cheng, her son, Alpha, and daughter, Zilvia.
In murder cases where the offender pleads guilty, it can sometimes occur that the offender will express regret to the victim's family for what he or she has done. That is not the present case. The Offender's reaction to the understandable distress of the Cheng family has been to offer no words of comfort or apology. The Offender's response is devoid of basic humanity.
The Offender's lack of contrition and remorse is demonstrated most starkly by what he said during a telephone call to his mother on 24 December 2017, a transcript of which is in evidence. The Offender was well aware that the telephone conversation was being recorded. During the conversation, the Offender's mother and brother enquired as to when he was next in court. He told them, correctly, that a hearing was scheduled to commence on 29 January 2018 to run for five days. During the conversation, there seemed to be an attempt by family members to speak sensibly to the Offender. At one point, his brother said to him, "As time goes on you've got to mature and you've gotta be thinking more calmly" to which the Offender replied, amongst other things, "I'm mature enough and [I swear] I have no regrets anything of me being here, this is the [fate] of Allah/God … I do not regret one single thing that I did on that day and when I go to court I swear by Allah/God I'm never ever going to say I'm sorry for what I did. But rather I'm gonna praise him, and say it's gonna happen again [God willing]".
Despite the fact that the Offender's thought processes were causing clear distress to his mother in the telephone call, he expressed himself in this way in strident terms.
The Offender's willingness to express regret for his custodial offence on 20 June 2017 (see [215] above) may be contrasted with his stance in this conversation with his mother at the end of 2017. Mr Sheehan referred to this conversation in his report. He noted correctly that the Offender's family members "appeared to be appealing to his better judgment" but that the Offender equated "re-evaluating his actions as renouncing his spiritual beliefs" and that this remained a "barrier to rehabilitation and remorse".
The Offender has made clear that he has no wish to participate in any form of deradicalisation program. Mr Barracosa is the Acting Senior Psychologist of the Proactive Integrated Support Model ("PRISM") with Corrective Services NSW. He described PRISM as a custody-based service for offenders identified at risk of radicalisation towards violent extremism. The PRISM program is designed to assist identified offenders to disengage from extremist groups or behaviours and to desist from support or involvement in offending behaviour and to reintegrate into society. Mr Barracosa emphasised that PRISM is available on a voluntary basis. It is not available for someone charged with a terrorist offence until after conviction and sentencing. The engagement in the assessment process involves a period of about three months and includes engagement with an offender's primary social supports and family.
It should be noted immediately that the Offender has expressed no interest in entering a deradicalisation program. The time for being asked formally about such a program has not yet arrived, as he is only being sentenced today. However, having regard to the approach he has adopted as illustrated so vividly by his comments to his own family in December 2017, there is no present objective foundation for a finding that he is likely to change his mind at some time in the future, even the long-term future.
It is always possible that a person may change a strongly fixed view in the future. That said, the Offender's views are already very deeply entrenched as demonstrated by his comments made before and after the murder of Mr Cheng and in his statements to Mr Sheehan and his mother recently.
The Offender's unwillingness to demonstrate a simple act of humanity by indicating his regret to Mr Cheng's family for what has happened is a further indicator of the locked-in nature of his perverse and dangerous views.
It is quite clear that the Offender remains dangerous to the general community given his views and his willingness to act upon them in the way demonstrated in this offence. In making an assessment of his prospects of rehabilitation, the prognosis is grim. At some point in the future as he ages, there is a possibility that the Offender may come to view things differently so that he is receptive to rehabilitative measures. However, there is no present foundation for such a conclusion.
It was submitted on his behalf (and noted by Mr Sheehan) that a sentence that held out some hope for the Offender in the future may assist a change in his mindset at some considerably later time. Even that is a doubtful and speculative approach given the evidence before the Court. However, I have kept this submission in mind, in particular, given the youth of the Offender.
A further aspect of the sentencing proceedings touches on the issue of contrition and remorse and prospects of rehabilitation. The Offender refused to stand at the commencement and conclusion of each court session during the hearing. Senior Counsel for the Offender informed the Court that his client was adopting this stance because of his religious beliefs.
At that point, I raised for consideration the "Explanatory Note on the Judicial Process and Participation of Muslims" prepared by the Australian National Imams Council. This publication is widely available to judicial officers in Australia and is posted on the Judicial Information Research System website of the Judicial Commission of New South Wales.
This publication states that there is no prohibition or restraint on a Muslim standing up for a Magistrate or Judge as a sign of respect to the Magistrate or Judge and to the Court. Likewise, it states that there is no prohibition or restraint on a Muslim, when entering or leaving a courtroom, to stand and lower their head in a mark of respect. The reasoning for these conclusions is contained in the document. This is a powerful statement by the leadership of Islam in Australia concerning the approach to judicial proceedings.
The Offender's approach was based upon an unspecified foundation in his religious beliefs.
The point of this, of course, is not any personal concern that I may have as a Judge. Rather, the issue is whether the Offender, as an Australian citizen who was before one of the Courts of the land, was prepared to take a step which all members of the community are expected to do as a mark of their acceptance of the law applying in our democratic society through one of the arms of government, the judicial branch.
The Offender has an entrenched approach which extends to his attitude towards the Courts. A mindset of that type does not assist the Offender with respect to prospects of rehabilitation.

The Offender's Plea of Guilty

The Offender was arrested in connection with this offence on 7 October 2015. He pleaded guilty to the present charge on 19 May 2017 when he was still before the Local Court at a time when committal proceedings were on foot with respect to other persons. He was committed for sentence on the present charge to this Court.
The Crown accepted that the plea of guilty should be approached as one entered at an early time.
At the time of the sentencing hearing, submissions were made on behalf of the Crown and the Offender with respect to the approach to be taken by the Court on sentence to the Offender's plea of guilty. Since the sentencing hearing, the Court of Criminal Appeal (comprised of five Judges) has handed down its decision in Xiao v R [2018] NSWCCA 4. Further written submissions were made by the parties in light of the decision of the Court of Criminal Appeal in Xiao v R.
Given the decision in Xiao v R, the Crown accepted that the Court is entitled to take into account the utilitarian value of the Offender's plea under s.16A(2)(g) Crimes Act 1914 (Cth). The Crown accepted that 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. The Crown accepted, as well, that the decision in Xiao v R found that a subjective intention to facilitate the course of justice and the strength of the Crown case were not relevant to the objective assessment of the utilitarian value of the plea: Xiao v R at [267]-[268].
In light of Xiao v R, the Crown noted that calculation of a discount for the plea of guilty was open in a Commonwealth matter, but submitted that a discount of 25% (as sought by the Offender) should not be extended to the Offender in this case. In this respect, the Crown submitted that there were a number of belated concessions made by the Offender together with some areas of factual dispute which ought be resolved adversely to him.
Mr Johnston SC, for the Offender, submitted that the Court should quantify the discount for the Offender's plea of guilty. He submitted that a discount of 25% or close to that percentage should be allowed in this case. It was accepted that it was open to the Court to reduce the level of any discount in the event that the Court resolved any area of factual dispute adversely to the Offender in this case: R v AB (2011) 59 MVR 356; [2011] NSWCCA 229 at 363-364 [30]-[33].
The sentencing hearing in this case extended over five days. Part of that time was occupied for the purpose of resolving factual issues in dispute, including the giving of evidence by one witness. I have resolved the issue arising from the evidence of that witness favourably to the Crown, this being the question of whether the Offender held his hand in a firearm gesture during a conversation with the witness. The evidence of that witness occupied some 95 pages of the 277-page transcript.
Beyond that, I have resolved other factual issues in dispute essentially by reference to documentary and electronic evidence. I have not accepted the Crown submission on the "30 cal bro" issue, although I do not consider that that aspect operates in any substantial way to assist the Offender on sentence. I have accepted the Crown submission with respect to the obtaining by the Offender of an Islamic State flag.
As already explained, the Offender's plea of guilty is not an indicator of contrition and remorse. There is a complete absence of those features in this case. This is not a case like R v Ghazzawy [2017] NSWSC 474 at [75], where the sentencing Judge was prepared to accept cautiously that the offender's plea of guilty may be some evidence of a move away from radicalised beliefs and that this provided some prospect of rehabilitation.
It is the case that the Offender has pleaded guilty at an early point of time and this has utilitarian value in that a trial involving him has not been necessary. A trial is scheduled to proceed with respect to other persons, but not one involving the Offender as an accused person. If he had not pleaded guilty, he would have stood trial jointly with these other persons.
In my view, some features of the sentencing hearing do call for reduction in discount in accordance with the principles in R v AB given that I have resolved some of these contested issues adversely to the Offender and, in particular, the issue which involved a substantial evidentiary hearing.
The discount to be applied for the plea of guilty in this case is purely a utilitarian one.
In all the circumstances, I consider that it is appropriate to quantify the discount for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth). That provision neither requires nor prohibits the specification of the discount, but it is desirable that such a discount be specified in the interests of transparency: Xiao v R at [279]-[280].
In all the circumstances, I propose to allow a discount of 15% for the Offender's plea of guilty in this case.

Victim Impact Statement on Behalf of the Cheng Family

Mrs Selina Cheng read a victim impact statement made on behalf of herself, her son, Alpha Cheng, and her daughter, Zilvia Cheng, who were also present when the statement was made.
Curtis Cheng was a fine man and a beloved husband and father. He worked in the interests of the people of New South Wales in his employment as an accountant with the New South Wales Police Force. Mrs Cheng told the Court that the day her beloved husband was "murdered in cold blood was the longest and most painful day of my life". Her words, and the emotions which accompanied those words, made entirely clear to all that heard her speak why she felt that way.
Mrs Cheng has suffered enormously as a result of her husband's death. Mrs Cheng stated that her husband was harmless and was a good man and the gentlest of souls. He was an innocent victim selected randomly to be the subject of this mindless atrocity.
In words which would be supported by all right-minded members of the community, Mrs Cheng stated that she was "utterly repulsed by those who had any part in Curtis' senseless murder". The dreams she shared with her husband to "enjoy a happy retirement had been totally shattered". The shocking effects of this senseless crime upon the Cheng family were laid bare for all to see.
The fortitude of the Cheng family is also clear. The wickedness and cowardice of the Offender (and Farhad Mohammad) may be contrasted with the strength, courage, humanity, decency and dignity of the Cheng family in their response to this random act of homicidal violence which has struck their family.
In the second reading speech with respect to the legislation which introduced victim impact statements for Commonwealth offences (Hansard, House of Representatives, 29 May 2013), the Attorney General, Mr Dreyfus, stated that a "scheme allowing the use of victim impact statements will benefit victims by providing catharsis, vindication and healing". The victim impact statement on behalf of the Cheng family has served these purposes to some extent at least.
However, the Attorney General also said that a scheme for victim impact statements "will also promote the rehabilitation of offenders by confronting them with the impact of their offending behaviour". When so confronted in this case, the Offender has sat coldly and without emotion or any sign of ordinary human feelings. The response of the Offender to the victim impact statement is a further demonstration of his lack of contrition and remorse and his grim prospects of rehabilitation.
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). I take into account on sentence the great harm suffered by each of the members of the Cheng family as a result of this offence.
It is appropriate that I repeat what I said in Court immediately after the victim impact statement was made at the sentencing hearing. I extend the deepest condolences of the Court and the Australian community to Mrs Cheng, Alpha Cheng and Zilvia Cheng for the great loss that each of them has suffered, and will continue to suffer, arising from these terrible events.

Factors to be Taken Into Account Under s.16A Crimes Act 1914 (Cth)

I have addressed a number of factors under s.16A Crimes Act 1914 (Cth) in the course of these sentencing remarks. I will refer to other factors at this point.
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).
For reasons outlined earlier in these sentencing remarks, I am satisfied that the present offence is extremely serious and is at the very high end of the scale of seriousness for an offence under s.11.2(1) and s.101.1(1) Criminal Code (Cth).
I am satisfied to the requisite standard that the Offender played a key role in the enterprise. Most significantly, he was integrally involved in the obtaining of the firearm and then in providing it directly to Farhad Mohammad on 2 October 2015. It is notable that it was the Offender alone who entered the Parramatta Mosque at that vital time to provide the firearm to the 15-year old youth who was to carry out the act. Despite his age, the Offender was a pivotal participant in this criminal activity. It may be said that Shadi Mohammad had played a role, as well, as the elder sister of Farhad Mohammad and as a person involved in the drafting of the note found on the killer's body. However, Shadi Mohammad had left the country the day before the killing occurred. The central participant in the activities on 2 October 2015, leading up to the commission of the murder, was the Offender who obtained the weapon (after some considerable efforts to do so) and then provided it to Farhad Mohammad in a private seven-minute meeting before the youth departed the Parramatta Mosque to carry out his homicidal mission.
This was a planned criminal act which was not spontaneous. As I explained earlier (at [172]-[191]), this was an offence of very high objective 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).
Mr Cheng was an accountant employed by the New South Wales Police Force as a civilian finance worker. He had been employed by the New South Wales Police Force from 11 November 1997 until the date of his death on 2 October 2015, almost 18 years. At the date of the shooting, Mr Cheng was 58 years of age. He and his wife, Selina Cheng, had been married for over 31 years. They have a son and daughter now aged 30 and 24 years. On 2 October 2015, Mr Cheng was leaving work and was unarmed. He was innocently going about his normal life when he was selected randomly and murdered.
The trauma, grief and emotional harm caused to Mr Cheng's family, friends and colleagues is entirely clear from the victim impact statement and all the evidence before the Court.
The Offender has displayed no contrition or remorse (see [224]-[241]): s.16A(2)(f).
I have considered above (at [242]-[255]) the approach to be taken to the Offender's plea of guilty and will allow a 15% discount for the utilitarian value of the plea of guilty: s.16A(2)(g).
The Court must have regard to personal deterrence: s.16A(2)(j). The Offender has a prior criminal history referred to earlier in these remarks. The Offender's adherence to his extremist views, which embrace the need for violent jihad, and his refusal to resile from his extremist beliefs requires a strong element of personal deterrence in the sentence.
The Court must have regard to general deterrence: s.16A(2)(ja). A very strong element of general deterrence is required in sentencing for terrorist offences. Even more so in a case such as this where the terrorist offence has caused death and thus actual harm to the community. It is of critical importance that Courts send a message to persons who are prepared to carry out violent acts such as this that such conduct will not be tolerated and will be met by severe punishment.
The Court must have regard to the character, antecedents, age, means and physical or mental condition of the Offender: s.16A(2)(m). The Offender was 18 years old at the time of the offence and is now 20 years of age. I keep in mind statements of principle concerning the relevance of youth in sentencing for terrorist offences (see [170] above). Whilst the youth of an offender is always relevant, it may be given less weight in light of the seriousness of the offence and the absence of any causal link between the Offender's age and his criminal conduct: R v Khalid and Ors at [109] and [270]. Like Bellew J in R v Khalid and Ors, I am not satisfied that there is any causal link here between the Offender's age and his criminal conduct.
I have regard to the youth of the Offender and the length of time that he is likely to be in custody under the sentence which is to be passed. In this respect, I note the submission of Mr Johnston SC concerning the present life expectancy of 80.4 years for Australian males. I have kept in mind, as well, the submission made on behalf of the Offender that the sentence to be imposed should not leave the Offender devoid of an incentive to rehabilitate himself: R v Denyer [1995] 1 VR 186 at 193.
There is no evidence that the Offender's health is in any way compromised. The report of Dr Allnutt and the later report of Mr Sheehan do not reveal any health difficulties which the Court may be required to take into account at this time. There is no reason to conclude that any future health difficulties which the Offender may encounter cannot be dealt with appropriately by Justice Health in the custodial setting: R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186 at 171 [125]-[126].
The Court must have regard to the Offender's prospects of rehabilitation: s.16A(2)(n). I have already set out in some detail the grim picture with respect to the Offender and his unwillingness to take any step towards his own rehabilitation. It is not possible to decide at this point that his prospects of rehabilitation are anything other than bleak.
The Court is required to consider the probable effect on the Offender's family and dependants: s.16A(2)(p). The probable effect of the sentence on the family or dependants is only to be taken into account if it is exceptional: R v Zerafa [2013] NSWCCA 222 at [93]. The Offender was in a relationship at the time of the offence, but that relationship has ended. He has no children. His family members are clearly concerned about his present position, but there is no scope for taking this factor into account beyond its bare recital.
This draws together all of the factors which I have so far considered.

Other Sentencing Decisions

The Crown provided a schedule of sentencing cases for terrorist offences. None of these cases involved the commission of a terrorist act which caused the death of a person. These cases have involved conspiracy, preparation or planning to commit a terrorist act or offences involving the production or possession of documents connected with a terrorist act. This distinguishing feature must be kept squarely in mind in the sentencing of the Offender given his close involvement to the terrorist act which involved the death of Mr Cheng.
I have considered the sentencing decisions to which the Court has been taken.
These decisions have laid out sentencing principles in terrorist cases which I outlined earlier in these remarks (at [164]-[171]). That is their principal utility on sentence in the present case. There is no Australian sentencing precedent which assists with quantum of sentence for the purpose of this case.

Section 19AG Crimes Act 1914 (Cth)

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].
I have considered the question whether the period specified in s.19AG(3) (30 years) represents an effective upper limit on the head sentence if the Court determines to pass a determinate sentence for a terrorist offence. I am satisfied that the Court can fix a determinate sentence for a period that exceeds that contained in s.19AG(3).
Section 19AG(3) only operates if a life sentence is passed and the Court determines to fix a non-parole period for a terrorist offence.
In an appropriate case, it would be open to a Court to impose a life sentence of imprisonment for a terrorist offence and decline to fix a non-parole period under s.19AB(3) Crimes Act 1914 (Cth) so that a sentence of imprisonment would operate for the term of an offender's natural life.
Where the Court considers that a very lengthy determinate sentence is appropriate (with a head sentence exceeding 30 years), then it is open to the Court to pass such a sentence. If the objective gravity of the terrorist offence is of such a level that a very lengthy determinate sentence is required, then the Court should proceed to pass sentence in that way. A different approach would not comply with the principle that the sentence be reasonably proportionate to the objective gravity of the offence.

Determining the Appropriate Sentence

I move now to determine the appropriate sentence which will adequately punish the Offender (s.16A(2)(k)) and will be of a severity appropriate in all the circumstances of the offence (s.16A(1)). There needs to be a reasonable proportionality between the sentence and the circumstances of the crime: R v Dodd (1991) 57 A Crim R 349 at 354. This brings into play all of the matters which I have considered so far in these remarks.
This was an offence of very great objective gravity which led to the death of a citizen as a direct result of the Offender's supply of the weapon to Farhad Mohammad. The Offender's involvement was close in time to the commission of the murder which would not have occurred without his involvement.
It has been said that terrorists who set out to murder innocent victims are motivated by a perverted ideology and that they, and their camp followers, must understand that they are at risk of very severe punishment from sentencing courts: R v Barot at [45]. The Victorian Court of Appeal has observed recently that the objective of terrorists is to "strike at the heart of our liberal, democratic and tolerant society" and that the actions of terrorists are "driven by a depraved and evil ideology and mentality which are anathema to the fundamental values of our nation" with their actions and underlying intent being "entirely morally bankrupt and totally cowardly": DPP (Cth) v MHK at [61]-[62].
All of these statements have direct application to the Offender in this case.
I note that the provisions now contained in s.105A.23 Criminal Code (Cth) apply whereby 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 a 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].
Having regard to the objective gravity of the offence and the Offender's subjective circumstances, and taking into account all factors relevant to the imposition of sentence for this grave crime, I am satisfied that, before application of the 15% discount, a sentence of imprisonment for 52 years is appropriate in this case. After applying the 15% discount (and with some rounding), the head sentence will comprise a term of 44 years' imprisonment. Applying the s.19AG(2) formula, there will be a non-parole period of 33 years.
The sentence should commence from the date of the Offender's arrest being 7 October 2015.
For the purpose of s.105A.23 Criminal Code (Cth), I warn the Offender that an application may be made under Division 105A Criminal Code (Cth) for a continuing detention order requiring him to be detained in a prison after the end of his sentence for the offence.
Raban Alou, for the offence of aiding, abetting, counselling or procuring the commission of a terrorist act by Farhad Mohammad against s.101(1) Criminal Code 1995 (Cth), you are convicted. I sentence you to imprisonment for a term of 44 years commencing on 7 October 2015 and expiring on 6 October 2059 with a non-parole period of 33 years commencing on 7 October 2015 and expiring on 6 October 2048.
The provisions of s.16F Crimes Act 1914 (Cth) require me to explain the purpose and consequence of the fixing of the non-parole period. The sentence that I have just imposed on you entails a period of imprisonment of not less than 33 years from the date upon which you were arrested. After that time, if you are considered suitable to be released on parole, you will serve the balance of your sentence in the community. During that period, you will be subject to various conditions and you will be subject to supervision. If you do not comply with any of the conditions imposed or the reasonable requirements of your supervisor, you are liable to be returned to custody for the balance of your sentence.

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: 16 May 2023

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (16 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (25)

Cited By (14)