R v Atai

church (2011) 216 A Crim R 152; [2011] NSWCCA 186 R v Alameddine (No. 3) [2018] NSWSC 681 R v Al-Kutobi; R v Kiad [2016] NSWSC 1760 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v Dennison [2011] NSWCCA 114 R v Elomar and Ors (2010) 264 ALR 759; [2010] NSWSC 10 R v Fattal [2011] VSC 681 R v Gray [1977] VR 225 R v Kahar (2016) 1 WLR 3156; [2016] EWCA 568 R v Khaja [2018] NSWSC 238 R v Khalid and Ors [2017] NSWSC 1365 R v Lamella [2014] NSWCCA 122 R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 69 R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Stambolis (2006) 160 A Crim 510; [2006] NSWCCA 56 R v Whyte (2004) 7 VR 397; [2004] VSCA 5 R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222 Tepania v R [2018] NSWCCA 247 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 ZA v R [2017] NSWCCA 132 Texts Cited: Freiberg, "Fox and Freiberg's Sentencing: State and Federal Law in Victoria", Lawbook Co, 2014

Shapland, "Personal Mitigation and Assumptions About Offending and Desistance" published in Roberts (ed), "Mitigation and Aggravation at Sentencing", Cambridge University Press, 2011 Category: Sentence Parties: Regina (Crown) Milad Atai (Offender) Representation: Counsel: Mr PR McGuire SC; Mr Y Shariff (Crown) Mr G Smith SC (Offender)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) McGirr Lawyers (Offender) File Number(s): 2016/128965 Publication restriction: ---

REMARKS ON SENTENCE

1. JOHNSON J: Once again, the Court is called upon to sentence an offender for grave crimes associated with the killing of Curtis Cheng, a peaceful and innocent civilian, in a terrorist act at Parramatta on 2 October 2015. The Offender, Milad Atai, was then an active member and supporter of the criminal terrorist organisation, Islamic State. His offences extend to the organisation of funding and support for Islamic State in Syria.

The Offences

1. The Offender appears for sentence with respect to the following offences, to which he has pleaded guilty: 1. Count 1 - Between about 6 August 2015 and 2 October 2015, at Sydney and elsewhere, aiding, abetting, counselling or procuring the commission of an offence by another person, namely engagement in a terrorist act by Farhad Jabar Khalil Mohammad ("Farhad") contrary to ss.11.2 and 101.1 Criminal Code (Cth), an offence punishable by life imprisonment. 2. Count 2 - Between about 1 September 2015 and 1 October 2015, at Sydney and elsewhere, intentionally collecting funds for or on behalf of an organisation, Islamic State, knowing that the organisation was a terrorist organisation, contrary to s.102.6(1) Criminal Code (Cth), an offence punishable by imprisonment for 25 years. 3. Count 3 - Between 29 December 2015 and 22 March 2016 at Sydney and elsewhere, intentionally collecting funds for or on behalf of an organisation, Islamic State, knowing that the organisation was a terrorist organisation, contrary to s.102.6(1) Criminal Code (Cth), an offence punishable by imprisonment for 25 years.
2. The Offender applies under s.16BA Crimes Act 1914 (Cth) that the Court take into account on sentence for Count 1, a further offence of, between about 6 August 2015 and 22 March 2016 at Sydney and elsewhere, intentionally being a member of a terrorist organisation, Islamic State, knowing that the organisation was a terrorist organisation contrary to s.102.3(1) Criminal Code (Cth), an offence which (if prosecuted separately) is punishable by a maximum penalty of 10 years' imprisonment.

The Sentencing Hearing

1. The Offender pleaded guilty to these charges on 18 May 2018. The sentencing hearing proceeded on 19-21 September 2018, at the conclusion of which, the Court remanded the Offender for sentence today. In circumstances to be described later in these remarks, the Court granted the Crown leave to reopen its case and the Court sat again on 15 November 2018, when further documentary evidence was tendered for the Crown and the Offender with counsel addressing on issues arising from that evidence. The Documentary and Oral Evidence
2. At the sentencing hearing between 19-21 September 2018, the Crown tendered a folder (Exhibit A) which contained a number of documents including a Statement of Facts and several affidavits which related to the Offender's custodial status and programs available within the correctional system. An affidavit of Senior Assistant Superintendent Geoffrey Poulsen sworn 5 September 2018 concerned the Offender's custodial conditions at the High Risk Management Correctional Centre ("HRMCC") within the Goulburn Correctional Complex. The affidavit of Stephanie Scott-Smith affirmed 21 August 2018 concerned the structure and operation of the Proactive Integrated Support Model ("PRISM") program of Corrective Services NSW in relation to which Ms Scott-Smith is the senior psychologist. The affidavit of Senior Correctional Officer David Smithson sworn 7 September 2018 related to an event in custody concerning the Offender on 28 April 2016. Further reference will be made to these affidavits later in these sentencing remarks.
3. Senior Assistant Superintendent Poulsen was cross-examined on his affidavit (T15-28).
4. The Crown tendered, as well, USB sticks containing surveillance footage and CCTV footage of certain events between 24 September 2015 and 2 October 2015 which concerned the role and activities of the Offender in the offences (Exhibits B, C and D).
5. As will be seen, the Offender gave evidence at the sentencing hearing and raised, amongst other things, the execution of a search warrant by police at his family home on 18 September 2014 (as part of Operation Appleby) as an incident which played a part in his radicalisation. In relation to this event, the Crown tendered a number of statements and a USB stick containing video footage of the execution of the search warrant (Exhibits E, F, G, H, J and K).

Facts of the Offences

1. What follows is drawn from the Statement of Facts tendered by the Crown (Exhibit A, Tab 3), which is substantially not in dispute, together with findings made by reference to the Offender's evidence and other documentary evidence tendered at the sentencing hearing. The Offender's Background
2. The Offender was born in Iran in January 1996. His parents were both of Afghan ethnicity being of the Sunni Muslim faith. The Offender has seven siblings, including four older brothers, two older sisters and a younger sister. The Offender's father died in about 1998 from suspected heart disease. The Offender's mother, and her children (including the Offender), migrated to Australia in 2006.
3. The Offender went to school at Merrylands Public School and Parramatta High School, gaining his Higher School Certificate in 2014.
4. The Offender married Cody Clarke (Amira Atai) in an Islamic ceremony in July 2015 and there is a two-year old son of the relationship.
5. At the time of the commission of the terrorist attack on 2 October 2015, the Offender was 19 years old.
6. The Offender has no prior criminal history.
7. Both the Offender's evidence and the report of Dr Furst indicate that he was affected by the arrest and charging in 2010 of his elder brother, Masood Atai, for an offence of murder, for which his brother was convicted (Atai v R [2014] NSWCCA 210). Events on 1 and 2 October 2015
8. At about 4.30 pm on 2 October 2015, Farhad (then 15 years old) walked up behind Mr Cheng, who was leaving the New South Wales Police Headquarters in Parramatta after completing work as an accountant. Farhad shot Mr Cheng in the back of the head with a .38 special calibre Smith & Wesson model British service revolver ("revolver"). Mr Cheng died instantly. Farhad then exchanged gunfire with New South Wales Police Special Constables and was shot dead.
9. Found inside a pocket of Farhad's clothing was a note written by him that made clear that the act of killing Mr Cheng was a religiously inspired act of violence carried out in support of Islamic State. The note stated: "Oh you disbelievers!!! Know your security means nothing to us. Know your weapons are nothing compared to what we have, our Lord, the all powerful and the all encompassing. Know that you all are being watched 24/7, while you are asleep, awake, planning But soon by the will of God the Exalted, your nights will turn into nightmares, your days into hell and you planning is nothing to us!! By the will of Allah have come today to put terror in your hearts. And soon the mujahideen will do the same, by the will of Allah Dawlatul Islam Baqiya Bi'dnillah."

Some Sentencing Principles Applicable to Terrorist Offences

1. As with sentencing for all Commonwealth offences, the provisions of s.16A Crimes Act 1914 (Cth) are to be applied in sentencing the Offender.
2. In the course of sentencing Alou (R v Alou (No. 4) at 422-423 [165]-[171]), I set out a number of principles identified by courts in Australia and the United Kingdom with respect to sentencing for terrorist offences: "165 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]. 166 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]. 167 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]. 168 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]. 169 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]. 170 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]. 171 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: (a) 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; (b) the period of time involved, including the duration of the involvement of the particular offender; (c) 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 (d) 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."

Objective Gravity of Offences

1. Assessment of the objective gravity of the offences is an essential element of the sentencing process: Tepania v R [2018] NSWCCA 247 at [107]-[108]. The Court must impose a sentence which is of a severity appropriate in all the circumstances of the offences: s.16A(1) and (2)(a) Crimes Act 1914 (Cth). Count 1
2. The Crown submitted concerning Count 1 that the Offender was intimately involved and complicit in Farhad's terrorist act on the afternoon of 2 October 2015 and had an extensive involvement from an early stage in the planning and preparation of the terrorist act. The Crown submitted that the Offender and Alou were co-principals in the commission of the offence and the fact that the Offender is to be sentenced for aiding and abetting does not, of itself, require the Court to consider him any less culpable than the principal who committed the terrorist act.
3. The Crown submitted concerning Count 1 that the Offender was a key person in critical steps leading to the commission of the terrorist act, including: 1. assisting Alou with attempts to have a radical, extremist flag made; 2. attending meetings at Parramatta Park with Alou and others in August and September 2015, with a suspicious ritual being filmed on 28 August 2015 (handcuffing of Hozan Alou) and with Farhad being present as well on 11 September 2015; 3. meeting with Alou and Farhad at the Parramatta Mosque on 21 September 2015, prior to meeting with X3 that evening in an effort to obtain a firearm; 4. assisting Alou to obtain a firearm by attending meetings with Alou, X2 and X3; 5. permitting Alou to use his mobile telephone as a point of contact with X2; 6. providing money to Alou at or about the time that Alou was seeking finance for the acquisition of the firearm; 7. using Alou's vehicle to attend the Alameddine residence on 29 September 2015 and speaking to a number of unknown males outside the residence; 8. after attending the Alameddine residence, travelling to the Parramatta Mosque and meeting briefly with Farhad in an area which was out of camera view; 9. visiting in the vicinity of the Alameddine residence on 1 October 2015 in the company of Alou for the purpose of obtaining a firearm; and 10. assisting Shadi to travel to Syria by providing funds and liaising with his overseas contact, Merhi, to arrange her travel via Turkey.
4. I approach the factor referred to at as being connected with the offence in Count 1 given the relationship between Shadi's departure and the timing of the commission of the terrorist act, which became more urgent after Shadi had left.

The Offender's Subjective Circumstances

1. The Offender was 19-20 years old at the time of the offences and is now 22 years old.
2. The Offender has no prior criminal history.
3. I have mentioned earlier (at [26]-[31]) aspects of the Offender's personal history before and after he and his family came to Australia in 2006. The Psychiatric Evidence
4. In evidence, the Offender confirmed that what he had said to Dr Furst was truthful and accurate (T181, 186). According to Dr Furst's report, the Offender does not drink alcohol or use any illicit drugs. He has no significant medical problems apart from sporting injuries sustained when playing soccer. There is no family history of mental illness.
5. When examined by Dr Furst by audio-visual link on 24 August 2018, Dr Furst considered the Offender to be "lucid, alert and reactive at the time of assessment, with no indications of pervasive depressed mood or psychosis". Dr Furst noted that the Offender was anxious about the upcoming sentencing hearing, but there were "no indications of cognitive disorder and he appeared to be of average intelligence".
6. Dr Furst considered that the Offender did not suffer from a major mental illness, depressive disorder, anxiety disorder, substance use disorder or any other diagnosable mental disorder according to DSM-5 criteria.
7. Dr Furst outlined the Offender's pathway towards radicalisation in the following way (page 7): "It would appear that he was not overly religious in his early childhood or early teens, socialising in a 'normal' manner, including social contact with girls on social media platforms. His pathway towards radicalization, as with the majority of terrorism-related offenders, was likely facilitated through extremist social contacts and influences, his older brother being very religious and the friendships that he developed from 2013 onwards including other members of the so-called 'Appleby Group', most notably Raban Alou. His apparent radicalization towards adopting the Jihadist ideologies of ISIS were also facilitated through regular Internet access to extremist websites that gave him a distorted perspective on events in the Middle East and helped to engender a sense of anger and hatred towards police, the Australian Government and other countries involved in the fight against the Islamic state. Mr Atai shared the core beliefs of the Islamic State, namely that Islam throughout the world is under attack and that there is a religious obligation to respond to that attack by means of violent jihad."

The Offender's Evidence and Issues of Contrition, Remorse, Prospects of Rehabilitation and the Risk of Reoffending

1. Before moving to consider the evidence under this heading, it is necessary to set out some relevant legal principles.
2. In sentencing the Offender, the Court is required by s.16A(2)(f) Crimes Act 1914 (Cth) to take into account the degree to which he has shown contrition for the offences by taking action to make reparation for any injury, loss or damage resulting from the offences or in any other manner. The Court must also have regard to his prospects of rehabilitation: s.16A(2)(n) Crimes Act 1914 (Cth).
3. The Offender bears the onus of proving contrition on the balance of probabilities, it being a factor which he relies upon to mitigate sentence (see [20] above). Likewise, it is for the Offender to demonstrate that his prospects of rehabilitation are favourable to him.
4. There is no substantial difference between the terms contrition and remorse, with the words being used interchangeably in this context: Georgopoulos v R [2010] NSWCCA 246 at [48].
5. In a sentencing context, remorse means regret for the wrongdoing which the offender's actions has caused, because it can be safely assumed that an offender will always regret the fact that he or she has been apprehended: Alvares v R (2011) 209 A Crim R 297; [2011] NSWCCA 33 at 313 [44].
6. In R v Whyte (2004) 7 VR 397; [2004] VSCA 5, Winneke P (Bongiorno and O'Bryan AJJA agreeing) observed at (403 [21]) that it is rare to find convincing evidence of genuine remorse and that remorse is an elusive concept which is not to be confused with emotions such as self-pity. It has been said that remorse is not a matter that directly affects the culpability of an offender, but is regarded as a relevant sentencing consideration because it forms part of the rehabilitative or reformative component of the sentence: R v Gray [1977] VR 225 at 231; Freiberg, "Fox and Freiberg's Sentencing: State and Federal Law in Victoria", Lawbook Co, 2014, paragraph [6.95]. The existence of remorse will be a major factor in determining whether an offender is unlikely to reoffend and has good prospects of rehabilitation: R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at 169-170 [41].
7. Assessment of the genuineness and value of remorse is likely to be better informed in circumstances in which it is expressed by an offender directly (that is, face-to-face) as remorse is an intrinsically subjective matter, the evaluation of which depends on the subtleties of human interaction: Alvares v R at 313 [44]; Mun v R [2015] NSWCCA 234 at [39].

The Offender's Letters of 14 October 2018

1. It was against this background that the Offender sent letters dated 14 October 2018 to the AFP and to the Senior Counsel for the Crown.
2. The letter to the AFP (Exhibit P) said: "In the name of Allah All praise is due to Allah, may peace & Blessing Be upon his messenger & his family & his companions: to what follows. I'm writing this letter regarding what happen in court & I would like to say few thing's that has been playing in my mind. Firstly I said that I'm sorry to Cheng family & about me being regretful about my action. I would like to say I'm not sorry about my action nor I'm regretful of my action. I take back what I said in the box because I was in the heat of moment & I just slipped up. All praise is due to God I'm happy with my action. If use can please let the Judge know about this letter & I want him to know were [sic] I stand with this remorse bullshit. Remember this I have sold my life for a cheap price & that is the next life because this world is only temporay [sic] & the hereafter is eternal. I ask Allah to grant victory to the believers & to destroy those who oppress his slaves. Ameen 'And the worldly life is not but Diversion & amusement. And indeed, the home of the hereafter that is the eternal life, if only they knew'."
3. The letter to the Senior Counsel for the Crown (Exhibit Q) said: "Im writing this letter regarding what happen in Court. I would like to say few thing's that has been playing in my mind. Firstly I said that I'm sorry to Cheng family & about me being remorseful about my action's. I would like to say that I'm not sorry nor I'm regretful for my action. I take back what I have said because I wasent [sic] been truthful. If use can please let the Judge know about this letter before my sentencing because I don't want any discount regarding remorse. Thank you."
4. No oral evidence was given at the resumed sentencing hearing on 15 November 2018. Senior Counsel for the Offender tendered Corrective Services NSW case notes which included the following entry concerning an assessment of the Offender by a psychologist on 25 October 2018 (Exhibit 4): "Presentation: The inmate was polite and cooperative with the interview. He appeared to understand and respond to questions appropriately. Nothing unusual was noted in his speech. He rated his mood as '11' out of 10, although his mood did not seem elevated, but rather within normal range. His affect was reactive and appropriate to the discussion. Thought form appeared intact at interview with content appropriately focused on current concerns. Memory and cognition were not formally assessed. Discussion: Atai was advised that management had become concerned about his welfare after he had produced documentation retracting statements of remorse he had apparently made during his legal proceedings. Atai acknowledged that this had occurred. He further clarified indicating that while he continued to hold to his belief system, he had 'felt for her (Mrs Cheng) as anyone would', and that his decision to retract his statements was in response to being 'pissed off with the judge'. He indicated that he was comfortable with his decision and that he was satisfied that his legal representative understood his position and would represent that in later proceedings. He was asked how he would respond in the event that he received a lengthy sentence and he indicated that he would cope with this. He was able to describe a number of strategies that he employs to manage his mood, including training, speaking with his wife, talking with other inmates and reading the Quran. On specific questioning Atai denied any history of mental health concerns. He also denied any thoughts of suicide or self-harm, and any current intent in this regard, stating such actions were 'forbidden' by his religion. Impression / Plan: The inmate does not appear to be at immediate risk of harm to self and appears to be coping adequately with his current circumstances. Atai indicated a willingness to engage with psychology post-sentencing and is aware of the process for referral to OS&P staff."

Victim Impact Statement on Behalf of the Cheng Family

1. Mrs Selina Cheng read a victim impact statement made on behalf of herself, her son, Alpha Cheng, and her daughter, Zilvia Cheng.
2. 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).
3. The direct victim of the terrorist act, Mr Cheng, was an Assistant Management Accountant employed by the New South Wales Police Force as a civilian finance worker. He worked at the Police Headquarters in Parramatta. He had been employed by the New South Wales Police Force from 1 November 1997 until the date of his death on 2 October 2015, a period of almost 18 years. Mr Cheng was 58 years old at the time of his death. He was leaving work and was unarmed on 2 October 2015. He was innocently going about his normal affairs, walking down the street, when he was selected randomly as the target for a terrorist attack. He was shot dead in the terrible circumstances described earlier in these remarks.
4. The shooting of Mr Cheng was an attack upon the New South Wales Police Force as well, as Farhad had selected Mr Cheng upon the basis that he had just emerged from the New South Wales Police Headquarters' building. Farhad's note also points to a desire to attack the authorities in the form of the New South Wales Police Force.
5. 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.
6. Mrs Cheng has suffered enormously as a result of her husband's death. She 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.
7. 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 Offender's Pleas of Guilty

1. The Offender was arrested in connection with these offences on 22 March 2016.
2. The Offender was committed for trial from the Downing Centre Local Court on 19 May 2017. According to an agreed chronology, the Offender did not commence plea negotiations with the Crown until September 2017. That process took eight months from September 2017 until May 2018.
3. In the meantime, the Offender was arraigned (with others) in the Supreme Court on 7 July 2017 and his trial was fixed (as a joint trial) to commence on 4 June 2018.
4. On 9 May 2018, an offer to plead guilty to the present offences was made by the Offender's legal representatives with that offer being accepted by the Crown on 16 May 2018.
5. On 18 May 2018, the Offender pleaded guilty to the three offences on the indictment and admitted the matter to be taken into account on sentence under s.16BA Crimes Act 1914 (Cth).
6. The Court allowed a 15% discount for the utilitarian value of pleas of guilty when sentencing each of Alou and Alameddine: R v Alou (No. 4) at 432-433 [242]-[255]; R v Alameddine (No. 3) at [258]-[275]. It should be noted that Alou pleaded guilty to the charge against him when the matter was before the Local Court with him thereafter being committed for sentence. Alameddine offered to plead guilty to the charges for which he was sentenced on 6 July 2017, one month after being arraigned in the Supreme Court.
7. It was submitted for the Offender that a discount of at least 15% should be applied for the utilitarian value of his pleas of guilty entered soon after the Crown had agreed to alter the charges originally laid. The Crown submitted that the Offender is entitled to a modest discount at the lower end of the scale to reflect the utilitarian value of his pleas of guilty.
8. The Court is entitled to take into account the utilitarian value of the Offender's pleas of guilty under s.16A(2)(g) Crimes Act 1914 (Cth). The utilitarian value of the pleas 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. When sentencing for Commonwealth offences, it is desirable that any discount given for the utilitarian value of a guilty plea be specified by the sentencing court: Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 at 51 [279]-[280]; Liu v R [2018] NSWCCA 70 at [9].

Parity Considerations

1. Alou was sentenced for a single offence expressed in the same terms as Count 1 charged against the Offender: R v Alou (No. 4) at 403 [4]-[5].
2. Alameddine was sentenced for materially different offences under s.101.4(2) Criminal Code (Cth) and s.51(1A) Firearms Act 1996 (NSW): R v Alameddine (No. 3) at [5].
3. In sentencing the Offender on Count 1, the Court should keep in mind the parity principle by reference to the sentence imposed on Alou. I have had regard to the sentence imposed upon Alou in accordance with the principles in Green v The Queen (2011) 244 CLR 462; [2011] HCA 49.
4. A very substantial sentence of imprisonment was imposed in the case of Alou involving a total term of imprisonment of 44 years with a non-parole period of 33 years. The objective gravity of Alou's offence was significantly greater than that of the Offender. Further, there were differences in Alou's subjective circumstances in particular given his prior criminal history. Prior to 14 October 2018, the Offender could point, as well, to some difference between Alou and himself in the areas of contrition and remorse and prospects of rehabilitation. However, the Offender's recent change of approach moves his position closer to that of Alou in these respects.
5. These considerations constitute a foundation for a significantly different sentence being imposed upon the Offender for Count 1. This is the case even allowing for the matter to be taken into account on sentence for Count 1, and the fact that the Offender is to be sentenced for other offences as well.
6. The offences for which Alameddine was sentenced are so different to those charged against the Offender that the parity principle (by reference to Alameddine's sentence) has no role to play in sentencing the Offender.

Factors to be Taken into Account under s.16A Crimes Act 1914 (Cth)

1. I have addressed a number of factors under s.16A Crimes Act 1914 (Cth) in the course of these sentencing remarks. I will now refer briefly to factors to be taken into account under s.16A(2).
2. The Court must have regard to the nature and circumstances of the offences: s.16A(2)(a). For reasons outlined earlier (at [219]-[244]), I am satisfied that the offence in Count 1 is extremely serious and lies at the higher end of the scale of seriousness for an offence under ss.11.2(1) and 101.1(1) Criminal Code (Cth).
3. For reasons expressed earlier (at [245]-[255]), I am satisfied that the offences contained in Counts 2 and 3 are serious examples of offences under s.102.6(1) Criminal Code (Cth).
4. The Court must take into account other offences (if any) that are required or permitted to be taken into account: s.16A(2)(b).
5. In sentencing the Offender on Count 1, the Court will take into account under s.16BA Crimes Act 1914 (Cth), the offence of intentionally being a member of a terrorist organisation, Islamic State, knowing that the organisation was a terrorist organisation contrary to s.102.3(1) Criminal Code (Cth).
6. Whilst the primary focus of the Court must be on the offence in Count 1, the Court should give greater weight to the need for personal deterrence which the admitted offence signifies, and also to the community's entitlement to extract retribution in the form of punishment for the admitted offence: R v Lamella [2014] NSWCCA 122 at [48]. The Court must assess the objective criminality of the admitted offence, though recognising that it assumes a significantly lower salience in the sentencing process than the offence for which sentence is to be passed: R v Dennison [2011] NSWCCA 114 at [47]-[57].
7. I have taken this additional offence into account on sentence on Count 1 applying these principles (see [243]-[244]).
8. I have taken into account the personal circumstances of the victim and any injury, loss or damage resulting from the offence: s.16A(2)(d) and (e). I have taken into account, as well, the victim impact statement made by Mrs Cheng on behalf of the Cheng family (at [332]-[345]): s.16A(2)(ea).
9. With respect to s.16A(2)(f), for reasons set out earlier in these remarks (at [292]-[331]), I do not find that the Offender had displayed contrition or remorse for his offences.

Other Sentencing Decisions

1. The Crown provided a schedule of comparative cases for terrorist offences. Only one of these cases involved sentencing for the commission of a terrorist act which caused the death of a person: R v Alou (No. 4). Other 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.
2. Apart from R v Alou (No. 4), the cases contained in the Crown's schedule were R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 69 (Whealy J); Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360; R v Elomar and Ors (2010) 264 ALR 759; [2010] NSWSC 10 (Whealy J); R v Fattal [2011] VSC 681; Director of Public Prosecutions (Cth) v Fattal [2013] VSCA 276; Elomar and Ors v R (2014) 316 ALR 206; [2014] NSWCCA 303; R v Khalid and Ors; R v Al-Kutobi; R v Kiad [2016] NSWSC 1760; Director of Public Prosecutions (Cth) v MHK (A Pseudonym) (No 1) and R v Khaja [2018] NSWSC 238.
3. I have considered these sentencing decisions and have taken them into account in the same way as noted in R v Alou (No. 4) at 436 [283]-[285].
4. The Court was not taken to any comparative cases involving sentencing for offences of the type contained in Counts 2 and 3. Submissions were made by reference to the nature of the offences and the available maximum penalty for those offences.

Section 19AG Crimes Act 1914 (Cth)

1. The offences contained in Counts 1, 2 and 3 are each a "terrorism offence" as defined in s.3(1) Crimes Act 1914 (Cth) and therefore a "minimum non-parole offence" within the meaning of s.19AG(1) Crimes Act 1914 (Cth). Accordingly, if a non-parole period is to be set, the Court is required to fix a non-parole period for each offence which is at least three-quarters of the head sentence.
2. The Court must fix a single non-parole period of at least three-quarters of the aggregate of sentences imposed for two or more offences where (as here) all offences are minimum non-parole offences: s.19AG(2)(b).
3. The operation of s.19AG(2)(b) 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 Alou (No. 4) at 436 [286].
4. To comply with s.19AG, I will fix individual head sentences for each of the three offences contained in Counts 1, 2 and 3, but a single non-parole period which will represent three-quarters of the total aggregate sentence.

Concurrency, Accumulation and Totality

1. The Offender is to be sentenced for three serious offences. The Crown submitted that a significant degree of accumulation is warranted in order to reflect the total criminality of the Offender. Senior Counsel for the Offender accepted that a level of accumulation was appropriate, but submitted that it ought be more modest than that submitted by the Crown.
2. The criminality involved in Count 1 is different to that contained in Counts 2 and 3. A significant level of accumulation is appropriate as between those two classes of offences.
3. Counts 2 and 3 are similar in nature, with Count 2 involving the actual provision of funds which assisted Shadi to leave Australia and travel to the Middle East to assist Islamic State. As discussed earlier (at [251]-[255]), the offence contained in Count 3 was not capable of having this effect, although the Offender did not know it at the time. He fully intended to commit the offence, but it could not be put into effect as he was subject to an undercover operation at the time. There ought be a degree of accumulation as between Counts 2 and 3.
4. In sentencing the Offender for several offences, the Court will apply the totality principle thereby reviewing the total sentence to consider whether the aggregate term is a just and appropriate measure of the total criminality involved: s.16A(1) Crimes Act 1914 (Cth); Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 528 [25]; ZA v R [2017] NSWCCA 132 at [68]-[84].

Determining the Appropriate Sentences

1. It is necessary to draw together all the objective and subjective factors and the sentencing principles to which reference has been made in these lengthy sentencing remarks.
2. The offence in Count 1 is a very serious offence which led to the death of an innocent citizen. The Offender's involvement in this offence occurred over a number of days, although he committed no criminal act on the day of the terrorist act itself. In the course of sentencing Alou, I said at R v Alou (No. 4) at 437 [293]: "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]."
3. Although the Offender's involvement in Count 1 was less than that of Alou, these sentiments have application to the Offender as well.
4. The offences contained in Counts 2 and 3 are serious examples of crimes of this type for reasons explained earlier in these sentencing remarks.
5. 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.
6. 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: Director of Public Prosecutions (Cth) v Besim and Anor (No. 3) (2017) 52 VR 303; [2017] VSCA 180 at [59].
7. In determining the sentences which I am about to announce, I have taken into account the objective gravity of the offences and the subjective circumstances of the Offender, together with other factors and principles which I have outlined in these remarks. I have also applied the 10% discount allowed for the Offender's pleas of guilty.

Amendments 25 August 2023 - Publication restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 August 2023