Solicitors:
Commonwealth Director of Public Prosecutions
(Crown)
Pinnacle Legal Group (Offender)
File Number(s): 2019/354277
[2]
remarks on sentence
HIS HONOUR: The Court is required to impose a sentence upon Hamdi Alqudsi, who, after trial, has been found guilty of a contravention of s 102.2 of the Criminal Code Act 1995 (Cth) of directing the activities of a terrorist organisation. The maximum sentence imposed for such an offence by the legislature is imprisonment for 25 years. The offence is said to have occurred between 30 August 2014 and 31 December 2014.
Notwithstanding that the proceedings at trial had a duration of over nine weeks, the facts giving rise to the offence are relatively confined. In the period between the end of August 2014 and the end of December 2014, the offender, Mr Alqudsi, directed the activity of a terrorist organisation, which was referred to as the Shura. It operated in Sydney.
The evidence before the Court was that the Shura was initially established for the purpose of assisting people to travel to Syria to fight against the government of Syria. Law enforcement agencies, after a short time, disrupted the activity by cancelling passports and prohibiting travel by a number of persons destined to travel to Syria. The offender was, at one stage, a person who was destined to travel to Syria, although there may be some doubt as to whether the offender intended to reach that ultimate destination. Nevertheless, the offender was purporting to embark upon one of the pillars of Islam, mainly attendance at the Hajj, and he told a number of people that he was intending to go to Türkiye and, it seems, Syria.
Two former members of the Shura (one of them having been a member for only a very short time) gave evidence as witnesses in the proceedings. The Court directed the Jury that unless it believed the substance of the events and discussion as outlined by a witness known by the pseudonym OA, it could not convict the offender. The Jury, as is obvious, convicted Mr Alqudsi.
The witness known as OA gave evidence which evidence was the subject of warnings under s 165 of the Evidence Act 1995 (NSW). These warnings were provided on account of the involvement of OA in the Shura which was said to be directed by the offender, and also on account of the fact that, having assisted authorities by providing a statement and giving evidence, the sentence OA received for his role was reduced significantly by the Court.
It is the function of a sentencing judge to determine the facts relevant to the sentence. In so doing, the sentencing judge is prohibited from determining facts that are inconsistent with the verdict. While that prohibition exists and is implemented by the Court as presently constituted, I should make it clear that, notwithstanding the caution that must be applied to the evidence of OA, the Court accepts his evidence and accepts the substance of his testimony and would do so whether or not such a prohibition existed. Further, having heard the evidence of OA, I am satisfied of the substance of his allegations and testimony, beyond a reasonable doubt.
To those unfamiliar with the process of sentencing, some aspects of the task may seem difficult to understand. That difficulty is exacerbated when one is dealing with the crime as serious as terrorism-related offences. In fixing an appropriate sentence, the Court is required to assess the objective seriousness of the offence.
In so doing, the Court examines the range of conduct that may generally be involved in the offence that has been committed. It is therefore necessary to assess the conduct of the offender to determine where, in the range of seriousness of conduct that may give rise to the offence, this offence fits. The Court thereby assesses the level of moral culpability within the range that exists for an offence of this kind.
There is only one other conviction for directing a terrorist organisation. Society can be grateful for that circumstance, but one must therefore assess the range of conduct on the basis of that which is theoretically possible and practically achievable, subject, of course, to apprehension by law enforcement authorities.
It is only in circumstances where the conduct involved, compared with other conduct that could give rise to this offence in other circumstances, is so grave as to warrant the maximum penalty that the Court would appropriately impose the maximum penalty. Thus, it is only for an offender who has engaged in conduct that warrants the maximum sentence where the Court could, appropriately, impose the maximum as the appropriate sentence.
As earlier stated, the maximum sentence for this offence is 25 years' imprisonment. I reiterate the principle that imposing the maximum sentence is not confined to an offence for which it is impossible to conceive of an even worse instance of the offence.
The Court is required to assess objectively the features of the offence and the circumstances of its commission to determine whether it is in the category of worst-case, or lower down the scale of seriousness. The scale is the notional range between the lowest level of culpability or seriousness and the worst category of cases, warranting the maximum sentence. In the case of a terrorist offence of this kind, all of the offences are serious.
The purposes of sentencing have often been described as conflicting or pulling in different directions. In serious crimes such as that now before the Court, the importance of punishment and public deterrence usually loom large. Other purposes of sentencing include the protection of society, personal and public deterrence, retribution and reform.
Each of these objectives, but particularly the protection of society, personal and public deterrence, punishment, and, to a lesser extent, the need for rehabilitation, must be assessed, having regard to the gravity of the circumstances, viewed objectively within the range of offending comprehended by the offence in question.
In sentencing for a terrorism-related offence, the courts, understandably, and, with respect correctly, have stressed that the predominant consideration is the protection of the community, the punishment of the offender, the denunciation of the offence, and specific and general deterrence. Further, where it is not established on the balance of probabilities that the offender has resiled from previously held extremist views, the element of community protection will assume even greater importance. [1]
As the Court of Criminal Appeal in New South Wales has noted [2] because terrorism offences involve conduct that is potentially catastrophic and is done with the intention of advancing a political, religious or ideological cause, protection of the community is entitled to greater weight than may otherwise be appropriate.
I do not intend to recite the detail of the operation of the Shura prior to 31 August 2014. It is sufficient, for present purposes, to note that the evidence establishes that the offender was the "Commander" or Emir of the Shura. He described himself in that way and others treated him that way. The evidence also establishes that, subject to the appointment of a proxy and/or second-in-command, the offender remained the Commander or Emir of the Shura.
On 31 August 2014, there was a meeting of a number of the members of the Shura at Wattamolla Beach. At that meeting the offender gave out pamphlets. The occurrence of the meeting is established by a series of communication records.
Even though the offender's phone was at home during this event, it is clear from the terms of the conversations that Mr Alqudsi was with the group that attended the function. The function was described by OA as a Shura meeting. At this stage mention had been made in the Shura of a pledge of allegiance to ISIS and/or Al Qaeda.
Between 31 August 2014 and 16 September 2014, there were meetings (or on one view, one meeting) at the offender's house in Revesby, during which one of the members of the Shura, Mr Azari, relayed what was provided to him by Mr Baryalei from Syria that the organisation or its members should give a pledge in front of the Harbour Bridge and put the IS flag on top of the Harbour Bridge.
Mr Azari also relayed the message that someone from Syria would come to teach them how to make improvised explosive devices (IED) and that they should pick their own targets. An example of the Mardi Gras was given. There might also have been mention of the Israeli Embassy by one of the members at the Shura.
According to OA, there was another meeting at the offender's house at which a letter, referred to in the proceedings as the "Soldier Letter", was given to Mr Alqudsi. In his record of interview, Mr Alqudsi admits that he had read the letter but said he had discarded it.
One of the members of the group brought a phone jammer so that communications could not be intercepted or traced.
On 15 September 2014, Mr Azari informed the group or members of it that Mr Baryalei informed them that members of the group should kill "unbelievers", video record it, and then send the video to him (Mr Baryalei) to have their pledge of allegiance accepted.
On 16 September 2014, there was a meeting of a number of the members of the group, not including the offender, at which one of the members spoke on a payphone. At that point, the members of the group were informed that the pledge of allegiance had been accepted "from the top" and not to try to travel overseas, but to remain and wait for instructions. They were instructed to attempt to get a member of the public to behead and wrap in the IS flag.
On 17 September 2014, Mr Alqudsi purchased a whiteboard from Officeworks. While initially denying the purchase, Mr Alqudsi later accepted that it had been bought for the use for one or more of his children.
On 18 September 2014, search warrants were executed on persons who were suspected of being members of the group. The Soldier Letter to which earlier reference has been made was found [3] , as was a leaflet or document entitled "Islam Means Peace". [4]
During the search, two copies of the leaflet were discovered, one of which contained handwritten corrections and the other of which was a corrected version. [5] This was found in the offender's house, in the bedroom of his stepson. It was found in the same place as a letter addressed to Mr Alqudsi (the contents of which are irrelevant for present purposes) and a book with the nickname of the offender in handwriting on its inside leaf.
Between 18 September 2014 and 14 December 2014, there were a number of discussions between OA, Mr Al-Talebi and the offender relating to possible targets for a terrorist attack. One suggestion was the naval base at Woolloomooloo (Garden Island) to which, on the evidence of OA, the offender said that they had been given the green light by Islamic State to go ahead with attacking.
One of those meetings, which occurred around the clothesline in the offender's backyard and at which the whiteboard was used for the purpose of jotting notes, referred to the possibility of the attack on Garden Island and also to another attack in or outside the Supreme Court. Such an attack was proposed for a day that the proceedings against Mr Alqudsi, in relation to the foreign incursion offences, were to proceed.
Further, during the course of this period, the offender asked OA to source weapons or whether he could source weapons from his contacts. OA reported back to Mr Alqudsi that he could source them, but the issue was not pursued thereafter, at least on the evidence of OA. Apparently, on the evidence of OA, Mr Alqudsi said to leave it and that they would get the weapons when they were needed.
On 14 December 2014 there was a meeting at Georges River. It occurred a day before the Martin Place siege, although it is not suggested that any member of the Shura was aware that the siege was to occur.
At the meeting at Georges River, the offender brought up his forthcoming court date and suggested an attack so as to target the Australian Federal Police, who would be attending the hearings.
In the course of the evidence before the Court, a number of possible targets of terrorism were identified. It is not suggested that any target was finalised or planned to fruition.
Nevertheless, the kinds of attacks that were suggested were: an attack on the Court, in particular, to target the Australian Federal Police; an attack on Garden Island Naval Base; an attack on the Gay and Lesbian Mardi Gras; a possible attack on the Israeli Embassy; random attacks on members of the public or "unbelievers"; and the provision of personnel (or the non-use of personnel) who were necessary for an attack by another group of persons.
Two other factors need to be mentioned. When Mr Alqudsi was stopped from leaving the country, ostensibly to attend the Hajj and, on the evidence, to then travel to Türkiye and Syria (although the last-mentioned destination is not accepted beyond reasonable doubt), Mr Alqudsi was interviewed by the Australian Border Force.
The interview is instructive and informative. Mr Alqudsi gave a reasoned and a reasonable series of answers that portrayed him as an innocent traveller, as was required by the pillars of Islam to the Hajj and then as a tourist. His demeanour was reasonable and the interview, in and of itself, would not portray and did not portray any inappropriate purpose in the travel. However, the Court is aware of a number of conversations between the offender and his wives and other people as to the true purpose of the travel and that it was not confined, nor was its major purpose, travelling to the Hajj.
Over and above the foregoing, there was a record of interview by Australian Federal Police and NSW Police of Mr Alqudsi (Exhibit C in the proceedings), which occurred on 11 November 2019. During the course of this interview, Mr Alqudsi denied strenuously having any knowledge of, or involvement in any discussion about, an attack on Garden Island or upon Court proceedings.
Again, Mr Alqudsi appeared in the interview, which was electronically recorded and is available, to be reasonable and calm in his denials. The demeanour in the course of the interviews by the Australian Border Force and the interview by the Australian Federal Police and New South Wales Police are recited because it informs the believability of Mr Alqudsi when denying illegal conduct and protesting his innocence.
Yet, we know from other evidence that is accepted that many of the seemingly reasonable denials were plainly disingenuous and that Mr Alqudsi was dissembling. In and of itself, such untruthfulness is not a factor that impacts upon the sentence to be imposed, but the circumstance of that dissembling is relevant to an appreciation of the current attitude of Mr Alqudsi, which is relevant to the sentencing.
The issue of the current attitude of Mr Alqudsi to extremist behaviour is a matter on which the Court will comment later in these reasons. Otherwise, there are subjective circumstances that the Court considers in relation to any sentence that might be imposed upon the offender. Before doing so, I record that I consider the offending to be well-above the mid-range in objective seriousness.
Mr Alqudsi was born in August 1974 and was, at the time of the offending, approximately 50 years of age. The offending occurred over a period of time. The offender was born in in Jerusalem and immigrated to Australia.
I assume, although there is little evidence of it, that his childhood may have involved difficulty on account of him living, as an Arab, in Jerusalem, which was, by the time of his birth, occupied by the State of Israel. As is obvious from the foregoing, this is not the first offence for which Mr Alqudsi has been convicted.
In 2009 he was convicted of possession or use of a prohibited weapon without a permit, but I do not consider it particularly relevant in sentencing for this offence. There is no suggestion of a relationship between the possession of the weapon and any extremist views, and the offence could not have been particularly serious as it was dealt with by way of a Bond for 12 months. I do not deal with any driving offence.
Further, the offences to which reference has earlier been made, namely foreign incursion offences, were seven counts of giving money or goods to promote or support a foreign hostile act, for which the offender was sentenced to 8 years' imprisonment, commencing 12 July 2016 and expiring 11 July 2024, with a non-parole period of 6 years which expired on 11 July 2022. The offender remains in prison and has not applied for bail, in part as a result of the proceedings for the offence for which he is now to be sentenced.
The proceeding which resulted in the sentence for the foreign incursion offences did not commence until 23 June 2016, which was well after the conduct that led to this offence. As a consequence, those offences do not, in my view, inform specific deterrence and give it a greater significance than would otherwise be the situation.
Mr Alqudsi was also convicted of making or furnishing a false statement which was the subject of a fine and which is, in my view, irrelevant in assessing an appropriate sentence for this offence.
The offender provided a report from Dr Olav Nielssen, Forensic Psychiatrist, who has expressed the view that the offender has a depressive illness in partial remission. This will make his incarceration slightly more onerous, but not significantly so. There is no evidence that suggests any mental illness or disorder that has occasioned the conduct of the offender or his behaviour. As a consequence, there is and should be no reduction in his moral culpability as a consequence of the depressive illness.
No other psychiatric reports have been furnished. The immediately preceding sentence is not a criticism of Mr Alqudsi or of Counsel. It is mentioned only because there is no basis upon which any such factors can be otherwise taken into account in the sentencing. However, I do reiterate that the assumed difficult circumstances of Mr Alqudsi's early childhood is a factor to which the Court has regard.
Mr Alqudsi did not give evidence. Evidence was adduced by the offender in the sentencing proceedings. That evidence was confined to the evidence of an ad hoc expert on some of the terms utilised during the proceedings and some of the beliefs and/or customs to which reference was made during the sentencing and trial proceedings.
Evidence was also adduced by a prison chaplain who is employed by the Islamic Council of New South Wales and provides spiritual and pastoral care to inmates. Those inmates included Mr Alqudsi.
The prison chaplain, Imam Ahmed Kilani, met with and spoke to the offender. He has seen him on a number of occasions. In the course of those meetings, Imam Kilani discussed the offender's previous convictions and the circumstances that led to his offending behaviour.
The evidence of the Imam attests that he "genuinely believed" that Mr Alqudsi, in the foreign incursion offences, was involved in a cause to assist innocent civilians overseas. Further, whilst in custody, Mr Alqudsi has proclaimed and practised, at least while observed by the witness, an understanding of Islam that would be described as moderate and has openly condemned those that advocate conducting political acts of violence.
I accept that the witness, the Imam Kilani, was truthful. However, his evidence relates to a conclusion as to the genuine beliefs of Mr Alqudsi, which is not the subject of direct evidence.
Given the capacity of Mr Alqudsi to sound calm and reasonable, even when faced with contradictory evidence and when knowingly dissembling, it is difficult to accept the opinion of the witness, without Mr Alqudsi giving evidence himself.
I am not satisfied, even on the lower standard of balance of probabilities, that Mr Alqudsi has disavowed extremism or exhibited remorse for his earlier conduct. In particular, the evidence before the Court on sentencing and at the trial is inconsistent with the view that Mr Alqudsi was, in supplying people overseas, only engaged in charitable works.
The Court is not sentencing for those earlier offences, but that opinion was expressed by the offender to the Imam and the Imam accepted it as genuine, when the Court is of the view, on the basis of the evidence adduced, that it could not have been genuine.
I turn then to the factors to which the Court is required to give consideration and, in particular, the terms of s 16A of the Crimes Act 1914 (Cth).
I accept that, at the time of his arrest and charging, the terrorist act had not been finalised. No target had been finalised and the planning was incomplete. Rather, the arrest of Mr Alqudsi and the other members of the Shura occurred at a time when the planning was in its early stages. However, such an occurrence says more about law-enforcement agencies and their capacity than it does about the offender.
There can be no doubt, on the evidence before the Court, that the conduct was contemplated and would have been catastrophic. An attack on the Garden Island Naval Base would, most probably, have involved loss of life and serious injury to many people.
An attack on the Court, targeting, in particular, Australian Federal Police officers, was intended to involve serious damage and loss of life.
An attack on the Mardi Gras, particularly if it occurred by way of improvised explosive device (for which training was to have been received), would have been horrendous and targeted innocent members of the public. In that respect, the terrorist acts that were contemplated, or discussed as possible targets, by the terrorist organisation which Mr Alqudsi was directing, were most serious, involving significant loss of life to many and injury to others.
I accept, in many ways as a result of the manner in which the Crown has conducted these proceedings, that the conduct in question formed part of a course of conduct which consisted not only of the current offence, but also of offences for which Mr Alqudsi has already been sentenced and which the Court should take into account in determining an appropriate sentence.
While there is evidence of contrition and remorse, in the sense of the offender no longer having extreme beliefs, on the balance of probabilities, I do not accept that the contrition is genuine or the remorse real.
There has been a degree of cooperation. A significant amount of material was reduced by means of cooperation between the offender on the one hand, and the Crown on the other, and there were agreed facts dealing with some of the matters relevant to the proceedings at trial.
Other than the matters to which reference has already been made, the offender has had a relatively good character. He is now middle-aged but is in reasonable physical condition.
Although the offender did not give evidence in the proceedings, he gives the impression of a personable and likeable man, who, for reasons upon which I will not comment, embarked on sending people to Syria. Given the nature of the regime, such a course may not, in and of itself, evidence extremism. Nevertheless, the departure from that course and the attention then paid to domestic terrorism does reflect serious extremism with, as already stated, possible catastrophic results.
Given the evidence of the Imam, to which reference has been made, and notwithstanding my view as to his opinion of the reasonableness of Mr Alqudsi, I do accept that there are prospects of rehabilitation of the offender, which I take into account in fixing a sentence. I accept that the offender may have altered his views on extremism, but I am not satisfied of that factor on the balance of probabilities.
I have already mentioned the possible effect on innocent members of the public associated with an attack that targeted the Mardi Gras. An attack on the Court, targeting Australian Federal Police officers, is for very different reasons, extremely serious. It goes to the heart of a functioning democracy and the need to ensure that laws are enforced by officials who are not targeted by extremists. Such a proposal, which, on the evidence that I accept, was suggested by the offender, adversely affects the due administration of justice and the existence of the democracy in which we all live.
For different reasons again, an attack on Garden Island is an attack on Defence facilities that are aimed at defending Australia as a whole and does not impact upon any person's rights to practise their religion in Australia. Again, such an attack targets the protective mechanism necessary in the operation of any country and, particularly, in a democracy such as Australia.
The only other sentence imposed for an offence of this kind was in relation to the offender Benbrika. [6] The sentence imposed upon him does not set a range. Nor does it provide an indication other than somebody has received a sentence for a similar offence. Any apparent resemblance in the sentence imposed for each is mere coincidence.
The guideposts are the purposes of sentencing to which reference has been made and the maximum sentence. There are other aspects.
The offender will serve any term of imprisonment in conditions that are more arduous, materially, than that which would be suffered by the general prison population. This is a factor that I consider in the determination of the sentence.
Nevertheless, the more arduous nature of the conditions of incarceration are largely the result of the nature of the offence of which the offender has been convicted. Some of the arduous conditions of incarceration result from the depression suffered by the offender, but, largely, that is an insignificant aspect of the conditions under which the offender is and will be imprisoned.
Given the nature of the offending and the seriousness of the offence with which Mr Alqudsi has been convicted, the Court has no doubt that a term of full-time imprisonment is the only appropriate available sentence, and no other sentence is appropriate in all of the circumstances of the case. In that regard, the restrictions imposed by s 7A of the Crimes Act have been satisfied.
Pursuant to the terms of s 19AG(1) of the Crimes Act, the Court is required to apply the "three-quarters rule", being a requirement to fix a single non-parole period which is at least three quarters of the head sentence for the offence, if imprisonment is the sentence.
Given the nature of the offending and the fact that it arose as a consequence of the thwarting of the foreign incursion conduct, it seems to me that the principles associated with totality apply. In fixing an appropriate sentence, the Court should fix the sentence as if the sentence for the foreign incursion offences and the sentence for this offence were fixed at the same time.
If it does not occur, then the offender is being punished in a manner that does not take into account all of the criminal conduct with which he has been charged and for which he has been sentenced, well after the occurrence of the conduct that has given rise to this offence. As earlier stated, the foreign incursion offences were the subject of sentences, the overall effect of which was a sentence of 8 years commencing 12 July 2016. The non-parole period is, for present purposes, not particularly relevant. At the time of this sentencing, the offender is still serving two earlier federal offences and I fix a non-parole period, pursuant to ss 19AB and 19AG of the Crimes Act, for all remaining sentences to be served.
The sentence that the Court shall fix will be a sentence of 15 years' imprisonment with a non-parole period of 11 years and 3 months. Given the attitude already expressed as to the relationship with the foreign incursion offences and the sentence, and the time spent in custody already on account of this offence, the sentence will commence on 11 November 2019.
Mr Alqudsi, please rise:
1. You are convicted that between about 30 August 2014 and 31 December 2014, at Sydney, in the State of New South Wales, you did intentionally direct the activities of a terrorist organisation, namely the Shura, the said organisation being a terrorist organisation, namely an organisation that was directly or indirectly preparing or fostering the doing of a terrorist act, knowing the said organisation was a terrorist organisation. That conviction is recorded.
2. You are sentenced to a term of imprisonment for a period of 15 years, commencing 11 November 2019 and expiring 10 November 2034, with a non-parole period of 11 years and 3 months, expiring 10 February 2031.
3. Pursuant to s 105C of the Criminal Code Act 1995 (Cth), I warn you that an application may be made for a continuing detention order requiring you to be detained after the completion of the sentence.
[3]
Endnotes
R v Uweinat [2021] NSWSC 1256 at [7] and following (Bellew J).
Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360 (Spigelman CJ; Barr and Price JJ agreeing).
Exhibit K; see also pp 493-494 of Ex JB-2.
MFI 10; see also pp 495-506 of Ex JB-2.
Ex X and Ex Y respectively; see also pp 495-506 of Ex JB-2.
Benbrika v R (2010) 204 A Crim R 457; [2010] VSCA 281.
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Decision last updated: 13 April 2023