R v Bayda; R v Namoa - [2019] NSWSC 24 - NSWSC 2018 case summary — Zoe

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R v Bayda; R v Namoa

[2019] NSWSC 24

Supreme Court of NSW|2018-12-14|Before: Fagan J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2018-12-14

Before

Fagan J

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

Judgment

On 5 September 2018 Sameh Bayda and Alo-Bridget Namoa were arraigned on a charge that: Between about 8 December 2015 and about 25 January 2016 at Sydney in the State of New South Wales and elsewhere, [they] did conspire with each other to do acts in preparation for a terrorist act (or acts).
Both pleaded not guilty. They were tried over the ensuing 20 days. Verdicts of guilty were returned against both offenders on 5 October 2018.
They were aged 18 years at the time of the conspiracy and are now 21. Bayda is from a Muslim family of Lebanese background. Religious teachers at a bookstore and prayer hall taught him militant Islam from about mid-2013, when he was 15. He became more fanatical in late 2015. Namoa's parents are of Tongan origin and are Christian. Namoa was introduced to Islam by two female street preachers in 2012 when she was 14½. In her own words she was an Islamic fanatic from mid-2015.
Islam was the religion and ideology the offenders intended to advance by the acts for which they conspired to make preparations. They were in a romantic relationship on and off from about April 2015 and they went through an Islamic ceremony of marriage during the charge period.
The maximum penalty for the substantive offence of doing acts in preparation for a terrorist act contrary to s 101.6(1) of the Criminal Code (Cth) is life imprisonment. By force of s 11.5(1) that is also the maximum penalty for conspiracy to commit the substantive offence. Their offence was of a relatively low order of seriousness and there are significant mitigating circumstances with respect to each of them justifying determinate sentences of moderate duration.
What constitutes a terrorist act is defined in s 100.1 of the Criminal Code. Paraphrasing and abbreviating the definition so far as relevant to this case, a terrorist act is as an act: 1. involving the use of a weapon or weapons which would in the ordinary course of events cause serious physical harm or death to one or more persons AND 2. intended to advance the cause of Islam by violence AND 3. intended either to: 1. coerce or intimidate the government of the Commonwealth or that of New South Wales OR 2. intimidate the public or a section of the public OR 3. both (a) and (b).

[2]

Evidence at trial of the conspiracy in SMS texts

The conspiracy was apparent from the offenders' SMS text communications of 30 and 31 December 2015. The messages were recovered, incompletely, from Namoa's phone after she had attempted to delete them.
From the early afternoon of 30 December 2015 texts were exchanged between them concerning an act of violence against non-Muslims which was planned by Bayda and encouraged by Namoa. She expected Bayda would be killed in this attack. Bayda's responses confirmed he was planning an action in which he expected to die for the sake of Allah. The messages of both offenders were liberally punctuated with Islamic religious exclamations such as "Alhamdulillah" (praise to Allah) and "Subhan Allah" (God is perfect).
Namoa urged Bayda to proceed and expressed respect for his commitment to carry out an act which would take him to paradise. In one message Namoa said she wanted to perform a jihadist attack in concert with Bayda, or to support him in such an attack, in these words: I wanna do an Islamic bonnie and Clyde version on the kuffs haha.
The term "kuffar" or "kuffs" was frequently used by both offenders as a contemptuous reference to people who do not follow Islam. I am satisfied beyond reasonable doubt, as the jury must have been, that these messages on 30 December 2015 concerned an act of violence against non-Muslims which at that time was planned by Bayda and encouraged by Namoa.
Bayda and Namoa took part in an Islamic marriage ceremony at about 8:00 pm on 30 December 2015. From shortly before 7:00 am the next morning they exchanged more messages to the same effect as those of the previous afternoon, indicating that Bayda's proposed act was imminent. Namoa continued to offer strong encouragement, including more Islamic exclamations such as "in shaa Allah" (God willing, as spelt by her).
At 10:18 am on 31 December 2015 Namoa was with Bayda and entered on his phone a note of support. She was clearly aware that Bayda planned to act in company. She wrote: Be happy i wanna know yous are smiling before yous jump outa the car. No matter what the outcome is at least you didn't pull out, do it for our ummah [Islamic community]. … note to the kuffar, DIE IN YOUR RAGE!! Boom bye bye
During the afternoon and evening of 31 December 2015 Bayda's messages indicated hesitation. Namoa continued to encourage him, suggesting that he and his associates "make dua" (supplication to Allah) and "Go hard fisbilillah" (in the cause of Allah). She said "Allah will send some kaafirs your way if He wills for them to come your way".
At 10:26 pm on 31 December 2015 a photograph of Bayda was taken on his phone, showing him in the driver's seat of his van dressed entirely in black, including a head covering and a scarf over the lower part of his face, tied behind his head. The effect was to leave only his eyes showing. The photograph depicts Bayda making the one fingered salute used extensively in propaganda of the Islamic State ("IS") to signify the oneness of Allah according to Islam. The photograph was sent to Namoa's phone.
The jury's verdict shows they were satisfied on this evidence that on New Year's Eve 2015 Bayda in company with some other young males was intending to prepare for a violent attack against non-Muslims and that on 30 and 31 December Namoa knew of the proposed attack, agreed with Bayda that he should carry it out and strongly encouraged him. The evidence before the jury would not have enabled them to conclude precisely what type of attack Bayda contemplated or to determine his reasons for not proceeding with it. Evidence given by Bayda on sentence, summarised below, has satisfied me that he and his associates intended to carry out a street robbery on non-Muslims. They did not proceed with the plan because one or more of them called it off.

[3]

Evidence at trial of offenders' activities in January 2016

Police obtained telephone intercept warrants for the mobile phone services of both offenders on 9 January 2016. SMS and voice communications were intercepted from then up to the arrest of Bayda on 25 January 2016. The intercepted communications do not reveal any further planning of a terrorist attack or discussion of preparations during January.
Evidence in the trial showed that the two offenders spent the night together at the Novotel, Parramatta on 9 January 2016. On that day illustrated instructions for stabbing a person with lethal effect and for making a bomb were saved onto the offenders' phones. The text of the instructions was in Arabic. In a recorded interview with police on 25 January 2016 Bayda said he could read Arabic. The evidence concerning creation dates and access dates for these electronic files is not sufficient to satisfy me beyond reasonable doubt that any downloading or reading of these files, or access to them, constituted an additional overt act of the conspiracy.
On the morning of 13 January 2016 police served upon each of the offenders, at separate locations, weapons prohibition orders issued by the Commissioner of Police pursuant to the Weapons Prohibition Act 1998 (NSW). Bayda was served first, after being directed to stop while he was driving to work. He phoned Namoa from his vehicle and told her to delete all his messages from her phone. She did this, however the phone seized from her shortly afterwards was capable of being examined with forensic software and it yielded the SMS messages of preceding weeks, some of which have been summarised above.
Shortly after serving Bayda, police searched the house where Namoa was residing. They found in her possession a Tactical brand knife, being a weapon of approximately 20 cm in overall length. This was in her handbag wrapped in a shahada flag (that is, a black flag bearing the messages in Arabic "There is no God but Allah" and "Muhammad is the prophet of God"). Photographs on Bayda's phone showed that he had been in possession of the Tactical brand knife at his home in Guildford at some time before 13 January 2016. It was open to the jury to infer beyond reasonable doubt that these items were being held by Namoa for safekeeping pursuant to an arrangement between herself and Bayda. That is the inference I draw.
From 30 December 2015 Namoa was in agreement with and expressly supported Bayda's intention to carry out a terrorist act. It was an agreement which looked beyond the aborted New Year's Eve attack, as shown by Namoa's message that she wanted to carry out an attack "on the kuffs" together with Bayda. The evidence concerning possession of the knife and flag established overt acts pursuant to this agreement. It is implicit in the jury's verdict that they found the agreement subsisted from 30 December 2015 at least to 13 January 2016.

[4]

Offenders' evidence of events on New Year's Eve 2015

In the sentence proceedings both Bayda and Namoa gave evidence. This qualified the picture that had emerged before the jury at trial, where no evidence was called in the defence case. On sentence Bayda described his actions on New Year's Eve 2015 and both offenders offered explanations of the SMS texts between them on 30 and 31 December. I apply the civil standard of proof to determine whether Bayda's acts and plans on New Year's Eve 2015 were as limited as he has now asserted.
Bayda said his relationship with Namoa broke up in late November or early December 2015 and they had little contact, only by phone, from then until Christmas Day. From 26 December 2015 Bayda and two other young men planned to carry out "an extremist operation" in the form of a robbery of a brothel or a gun store or a bank. The next day they met with a fourth person and discussed the possibility of starting a bushfire. Bayda said that in al-Qaeda propaganda that he had read online, crimes such as these were promoted as a means of causing Western governments to waste taxpayers' money.
Then, Bayda and his associates found on the Internet a suggestion from jihadists of stabbing or bashing drunk non-Muslims and stealing their money. Bayda developed the idea of making such an attack on New Year's Eve and he acquired a baseball bat as a weapon for this purpose. Bayda said that IS and al-Qaeda propaganda online deemed such crimes against non-Muslims "Islamically acceptable". I do not accept his evidence that he intended to take part in such an attack "specifically for the money". That is contradicted elsewhere in his evidence where he acknowledged religious and ideological motivation.
When Bayda recommenced communications with Namoa on Christmas Day 2015 he understood she had become interested in another man. Subsequent to the above discussions with his associates, on 27 December 2015 he asked Namoa to marry him. She said they should "take it slow and see how things go" but he wanted to pressure her to agree, to pre-empt his rival. He claims that in those circumstances he told her "if you do not marry me, I am going to do an attack and die". Bayda said in evidence he had no such intention but said this to Namoa "to try and convince her to marry me and not the [other] guy".
Bayda said that on 29 December 2015 he told Namoa of his commitment to his associates to participate in the attack and that they opposed him getting married because it would cause him to "back out". Bayda's explanation of the text messages summarised at [9]-[15] above is that by 30 December 2015 he had persuaded Namoa he was going to "do an attack and die". He said he kept up the pretence of a planned suicide attack "to manipulate Namoa, try to convince her to marry me".
According to Bayda's evidence this resulted in Namoa agreeing, in the mid-afternoon of 30 December 2015, to marry him. Bayda promptly arranged an Islamic marriage ceremony for that evening. Independent evidence clearly establishes that the ceremony took place. Bayda has said that late in the evening Namoa asked him whether he could get out of his commitment to take part in the attack and he said he could not.
On Bayda's evidence he and Namoa went to a mosque together at around 10:00 am on 31 December 2015. At that time she entered on his phone the message quoted at [14] and told him not to read it "until before you go out", apparently meaning immediately before the proposed attack. In evidence Bayda explained his text messages to Namoa during the rest of 31 December, continuing into the evening, as an attempt to maintain the pretence that he was embarking upon a suicide attack, despite his real feelings that now he had secured marriage to Namoa he had no interest in even the limited street crime which had been planned for that night.
Bayda's description of the events of the night was that he joined one of his associates at a mosque in Guildford, then drove his van to pick up the other associate at Bankstown. All three continued in the van to Brighton-Le-Sands where they drove about the streets looking for isolated, intoxicated non-Muslims whom they could bash and steal from. They had a baseball bat, which Bayda had purchased, and two knives. They identified a couple who appeared to be suitable victims and Bayda pulled over. One of the associates alighted with the baseball bat but Bayda "froze". He said: I was now looking at these two people and at that point reality hit me about what we were about to do. You know, there was all this boasting about going out, bashing drunk people and stealing their money; at that point I just couldn't get out of the car. I stayed staring at those two people, the male and female. I just couldn't get out there and hurt those innocent people.
Following this they picked up another associate nearby and proceeded to some parkland where they attempted to start a fire using petrol in crudely prepared Molotov cocktails. Then they all went home.
Namoa gave evidence that she was told by Bayda on 25 December 2015 that he and his friends were going to carry out an "operation" on New Year's Eve. As already mentioned Bayda says he did not plan this with his friends until 26 December and did not tell Namoa until 27 December. The difference in evidence about the date does not appear to be important. I do not consider that it bears upon the credibility of either offender concerning the substance of what they said to each other.
Namoa said she initially attempted to talk Bayda out of the planned attack and when this was unsuccessful she gave him encouragement, as appears in the SMS texts. In oral evidence and in a letter she tendered to the Court (Exhibit N5) Namoa disputed that there was any conspiracy between herself and Bayda, including on 30 and 31 December 2015.

[5]

Conclusion regarding events on New Year's Eve 2015

I accept on the balance of probabilities that Bayda's activities on New Year's Eve were substantially as he described them. Essentially the three young men set out to commit a robbery in company with violence. Whether it was Bayda only who drew back from commission of the offence or whether this came from his associates as well, the fact is that no such robbery took place. The Crown did not suggest otherwise.
I accept Bayda's evidence that he and his friends were inspired by jihadist propaganda to plan a street attack upon non-Muslims. I do not regard this as an improbable minimisation of the level of violence intended. Some of the material on the offenders' devices urged Muslims to attack and plunder Western civilians in their own countries in furtherance of their religious duty. An article entitled "Advice to Those Who Cannot Come to Sham" by Abu Sa'eed al-Britani encouraged precisely this kind of crime. Another article by al-Awlaki was entitled "The Ruling on Dispossessing the Disbelievers Wealth in Dar al Harb", referring to the sphere of war, meaning anywhere not under Islamic control. This cited hadith as follows: The Messenger of Allah said, "I was sent before the hour with my sword, and my sustenance is under my spear, and humility and belittlement is the destiny of whoever defies my commands". The best and purest form of income is booty. The Messenger of Allah said: "… and the spoils of war are made halal [lawful] for me …".
Bayda said that the jihadist propaganda he read online encouraged any sort of violent street crime against non-Muslims. He understood these propagandists to say: whoever the target is, is a non-Muslim, they call it to be part of jihad, so they say you'll be rewarded by Allah if you do these acts.
It follows that I also accept Bayda did not intend to carry out on New Year's Eve an attack of a kind likely to lead to his death. I find it plausible in all the circumstances that he exaggerated to Namoa the nature of what he was planning. Bayda made excitable phone calls to Namoa and to his mother on 13 January 2016 when the weapons prohibition orders were served, illustrating his capacity for histrionics. Namoa's induction into Islam and Dr Furst's report on her education and psychology show that she was naïve and suggestible. Namoa's evidence on sentence and her demeanour in the witness box have left me with the impression she could well have been taken in by false boasting from Bayda that he was on a suicide mission.
I am not satisfied on the balance of probabilities that Namoa initially tried to discourage Bayda. There is no hint of this in the texts, which were exchanged in high volume on the relevant days. In any event, whatever her initial reaction may have been, it is apparent Namoa offered encouragement during 30 and 31 December 2015 and clearly agreed with Bayda in the making of preparations for a terrorist act. The fact that she envisaged he might carry out on New Year's Eve an attack of greater scale than in fact he actually intended is not inconsistent with the jury's finding that there was a conspiracy between them as charged.

[7]

Bayda's background and induction into jihadism

Bayda was born in Australia. His father migrated here from Lebanon. His mother was born in this country. Bayda's parents did not give much attention to religion during his upbringing. He describes them as "moderate" which he explained as meaning that they observed private and personal aspects of the religion such as praying and fasting but did not evince hostility to people of other faiths or to Australia's non-Islamic laws. There is nothing to suggest that the jihadist ideas Bayda held in 2015 and 2016 came from, or were in any way supported by, his parents.
Bayda said he received no instruction in Islam in his youth, either at home or elsewhere. Then in the first half of 2013, at the age of 15, he commenced to attend Bukhari House, an Islamic bookstore and prayer meeting room in Auburn. At about the same time he began to listen to lectures and sermons on the Internet which promoted salafist doctrine. In his evidence he described salafists as those who "take the Quran literally and they want to live exactly as Muhammad, the way Muhammad lived", including violent subjugation of non-Muslims. Bayda said that during a 10 day period over which he slept at Bukhari House in July 2013 he was instructed by two men in their late 20s who "believed in jihad … so they followed like same beliefs as ISIS, al-Qaeda".
Bayda gave this evidence regarding the teaching he received from these two instructors at Bukhari House: I looked at them as very knowledgeable in the religion … they were teaching me about this whole new ideology and this whole new way to look at Islam … I started to … view [ISIS and al-Qaeda propaganda] online because this is what I was taught by them boys and this was at the time what I understood to be … the right interpretation of Islam.
He said that he was shown by these two men "verses about jihad in the Quran" and they told him the history of the Prophet and his companions and "spoke about the violent activities that they did". He said "they spoke about how evil democracy is" and supported what they said by reference to the Quran and other Islamic scriptures. When Bayda subsequently read IS and al-Qaeda propaganda online he found it consistent with what he had been taught at Bukhari House.
Bayda left school in 2014 when he was 17. In early 2014 he was still attending Bukhari House but, on his own account, he was "beginning to distance [himself]" from the men who had instructed him in jihadism. He said "they weren't too happy about that and they would try to keep me away from my high school friends". He ceased contact with these Islamic instructors from August 2014.
In September 2014 Bayda sat an entrance examination for the Australian Defence Force but failed mathematics. He enrolled at TAFE in early 2015 to attain a higher level of education. However in the first half of 2015 he turned to heavy cannabis use and then to selling cannabis to pay for his consumption. This led to abandonment of his further education. He took up work with his father as a painter from June 2015. In November he purchased a van, obtained a contractor's license and commenced his own painting business.
Bayda was watching jihadist videos quite extensively in June, July and August 2015. This developed into sharing jihadist ideas with his friends, in person and online, from early December 2015 and then a desire to undertake his own violent action against non-Muslims by the end of that month. One of the associates with whom he was talking about jihad from early December and who went out with him looking for victims on New Year's Eve was a young man he had met at Bukhari House.

[8]

Namoa's adoption of jihadism

In a letter to the Court tendered on sentence Namoa said of her recruitment to Islam by two female street preachers in 2012 that: being the extremely impulsive and curious 14½-year-old girl that I was I wanted to try something new, so, I became Muslim overnight.
I infer that at least one of these street preachers actively supported jihad. According to Namoa the woman's husband was subsequently killed while fighting in Syria and the woman herself was later killed there. Namoa said she initially followed Islam for only about three months, then reverted to attending Mass in accordance with her Catholic upbringing. She came back to Islam in late 2014 but not seriously. She continued "clubbing and binge drinking". From about early 2015 she practised Islam to the extent of observing daily prayer rituals and covering her hair and face.
Namoa told Dr Furst that she developed an interest in IS propaganda from about late June 2015. At that time she had been in a romantic relationship with Bayda for two months. Namoa's letter to the Court included this (emphasis added): I got into propaganda first and then learnt the fundamentalist ideology through other Muslims on social media which I then followed being the only thing I've seen widespread online which was always labelled as the path of Islam. Following that I learnt the basics of Islam, such as the prayer and ablution in September 2015. I acknowledge that I was a fanatic and that I've accessed a substantial amount of Islamic State propaganda, as well as downloading various books and documents onto my phone.
Namoa's fanaticism at around the charge period is well illustrated in a letter she wrote on 5 February 2016 addressed to Bayda. He had been charged more than a week earlier and was in custody. Namoa was on notice that she was going to be questioned by authorities. In this letter she rejected Australian laws and law enforcement authorities, saying "Allah is my legislator". She spoke of having no interest in life on earth and desiring only death and paradise.

[9]

Trial evidence of Islamic propaganda on offenders' phones and devices

The offenders' phones seized on 13 January 2016 contained Islamic propaganda in thousands of images, videos and text files. This material had been downloaded from the Internet, mostly during 2015. Under search warrants police seized a laptop computer and a digital hard drive from Bayda's home on 25 January 2016 and 5 February 2016. Both devices contained numerous downloaded electronic editions of IS's periodic magazine "Dabiq" and a similar publication by al-Qaeda entitled "Inspire". A representative selection of material was tendered in the trial.
The material on Bayda's phone included the following: 1. Numerous videos of sermons delivered by Islamic scholars identifying in the Quran and in the example of the Prophet's life a foundation for the belief that Allah has commanded the believers to kill or subjugate all non-Muslims. 2. Instruction manuals on how to carry out lethal attacks on non-Muslims in Western countries. 3. Still images and videos of Islamic combatants in the Middle East, either posing heavily armed or carrying out mass executions of bound and helpless prisoners, often by beheading. 4. Conversations, in the form of exchanged text messages and/or images, between believers in the Islamic duty of jihad.
On Namoa's phone there was material in the same categories but of lesser volume. The IS and al-Qaeda electronic magazines on Bayda's laptop and hard drive contained learned religious articles urging violence against non-Muslims, particularly in the West, instructions upon how to carry out such violence and depictions of religious warfare in the Middle East.
The message conveyed by the written and video-recorded propaganda on all devices was essentially as follows: 1. All non-Muslims, being people who do not accept Allah as the one God and Muhammad as his Prophet or Messenger, are the enemies of Allah. 2. It is a Muslim's obligatory religious duty to wage jihad against (that is, make war upon) all non-Muslims everywhere, including civilian populations in the West. 3. The obligation of jihad against non-Muslims is never-ending until Islam has been imposed universally and non-Muslims everywhere have submitted.
By way of encouragement of attacks on non-Muslim civilians and governments in the West the propaganda represents that Muslims generally are under attack. No substantiation of this supposedly general attack is offered and the passages from the Quran relied upon are not expressed in defensive terms but call for forcible imposition of Islam as an imperial project. The propaganda urges Muslims in the West to engage in terrorism upon the premise that their loyalty to Islam is higher than any loyalty to the nations in which they live, that they are residing amongst an enemy and that their religious obligation to dominate non-Muslims by force displaces the mutual obligations of citizenship under Western laws.
I am satisfied beyond reasonable doubt that each of the offenders read and/or viewed sufficient of the jihadist material on their phones and other devices to understand this divine command for attacks on innocent Western civilians. In their evidence on sentence neither of them disputed that at the time they understood and accepted that message.
At trial the significance of the downloaded material was to support an inference that Bayda and Namoa intended to advance their religion by perpetrating violence against non-Muslims. The verdicts of guilty carry an affirmative finding that that was the belief and intent of both offenders. On sentence they have not denied it.
The countless images of death in the propaganda on the offenders' devices and the relish with which the video recorded sermons and written articles speak of bloodshed convey a first impression of no more than depravity. However the sermons and writings are serious and scholarly religious teaching. They quote verses of the Quran which unmistakably instruct the believers to undertake jihad in pursuit of universal Islamic dominance. For example in one of Anwar al-Awlaki's essays in "Inspire" magazine (Trial Exhibit FF) verses are quoted in these terms: 8:39 Fight them until there is no fitnah [disbelief] and [until] the religion, all of it, is for Allah. 8:60 And prepare for them what you can of strength and steeds of war that you may terrorise with it the enemy of Allah and your enemy. 4:84 So fight, [O Muhammad], in the cause of Allah; you are not held responsible except for yourself. And encourage the believers [to join you] that perhaps Allah will restrain the [military] might of those who disbelieve. …
Al-Awlaki's essay, which is part of the evidence tendered to the jury, also quotes sayings of the Prophet to similar effect, such as the following (from two collections of Hadith): The [Prophet] said: "I was instructed to fight mankind until they testify that there is no one worthy of worship except Allah, and that Muhammad is the Messenger of Allah, they establish Salah [prayer] and they pay Zakah [tax on wealth for alms]. Whoever does so have protected from me his blood and his wealth.
The Crown's witness, Dr Rodger Shanahan, gave evidence before the jury that in Islam the Quran: needs to be understood differently to the Bible insofar as the Quran is the literal word of God, so delivered over a period of time specifically to Muhammad by the Angel Gabriel. The Prophet Muhammad then recounted or wrote down what he had been told in these revelations, and they are collated in the book we now know as the Quran. … So when we talk about references in the Quran, that takes on a very important aspect within Islam, because that is essentially what God has told his followers to do. (In this and in subsequent extracts from the evidence, some spellings as they appear in the transcript have been altered for uniformity.)
The following are further examples of Quranic verses cited by contributors to the online propaganda magazines which Bayda had on his electronic devices. I quote them in the terms in which they appear in the evidence: 2:216 Jihad is ordained for you though you dislike it, and it may be that you dislike a thing which is good for you and that you like a thing which is bad for you. Allah knows but you do not know. 9:5 And when the Sacred months have passed, then kill the polytheists wherever you find them … . 9:29 Fight against those who believe not in Allah, nor in the Last Day, nor forbid that which has been forbidden by Allah and His Messenger and those who acknowledge not the religion of truth among the people of the Scripture [Jews and Christians], Until They Pay the Jizyah [poll tax] with willing submission, and feel themselves subdued. 9:33 It is he who has sent his Messenger [Muhammad] with guidance and the religion of truth, to make it superior over all religions even though the mushrikun [polytheists, pagans, idolaters, unbelievers] hate it. 9:73 O Prophet fight against the kuffar and the munafiqin [hypocrites] and be harsh upon them. 9:123 Fight those adjacent to you of the kuffar and let them find in you harshness.
An article in one issue of Dabiq, tendered from Bayda's electronic storage, was entitled "Islam is the Religion of the Sword not of Pacifism". It contains this argument: Allah has revealed Islam to be the religion of the sword, and the evidence of this is so profuse that only a zindiq (heretic) would argue otherwise. The article proceeds to quote from the Quran, including some of the verses set out above, and the following (being part of 47:4): So when you meet those who disbelieve, strike their necks until, when you have inflicted slaughter upon them, then secure their bonds, and either [confer] favour afterwards or ransom [them] until the war lays down its burdens.
The jihadist propaganda on Bayda's laptop and hard drive (particularly the IS and al-Qaeda magazines) also relies upon the Prophet's example of waging religious war in the 7th Century. The articles invoke the duty of Muslims to follow the Prophet's example in all things as a central tenet of Islam. Writings of other Islamic scholars, ancient and modern, are quoted to substantiate that the war-making of IS in the Middle East against everyone except Sunni Muslims and the extension of this violence against Western communities are the fulfilment of all Muslims' religious duty.

[10]

Evidence given at trial by Dr Shanahan

Dr Shanahan is a retired Army officer who has served as a defence attaché at various Australian diplomatic posts in the Middle East. He holds a doctorate in Arab and Islamic studies from the University of Sydney and has published extensively on Islamic subjects. In evidence before the jury he recounted the origin of Islamic State in Iraq in about 2006 and its combat activities in Syria up to June 2014 when its leader declared himself the caliph, or successor to the Prophet Muhammad, and ruler over the area which IS controlled.
Dr Shanahan said that following the announcement of the caliphate IS called: for people to travel to build the Islamic State, at the same time they were also telling people who … were unable to travel there that they could also contribute to Islamic State by conducting attacks in their home locations.
Dr Shanahan described Islam as a legal and political system not limited to religion in the spiritual and personal sense: Islam is supposed to be not just a religion but a total system of life, so for any total system of life you need a legal framework. … Islamic law as we know it, or the Sharia, provides guidance for how you are supposed to live your life in the way in which God willed you to do that. … [W]ithin Islamic law, different weight is given to different sources of Islamic law. Obviously the most weight is given to the Quran because that is the literal word of God, but that doesn't give complete guidance for how people should live their lives. So in those vast areas that it doesn't mention, … you take your guidance off what are known as the hadith, and the hadith are the actions or the sayings of the Prophet Muhammad and his companions. So if Muhammad was chosen out of all people by God to receive the revelations, then it follows that the actions that he undertook and the words that he said should be the next most important source of law within Islam.
Dr Shanahan said that in the extensive publishing activities of IS a significant component has been "encouraging attacks against non-believers in Western lands". He said Anwar al-Awlaki, whose writings were amongst those stored on the offenders' devices, was a Muslim scholar who had been influential up until his death in 2011: He had done some formal Islamic training, allegedly in Saudi Arabia but definitely in Yemen. … He was a very good orator and he had formal Islamic legal qualifications. … [P]eople who have been attracted to Islamic State have downloaded al-Awlaki's speeches, because he talks about the same kind of things that all jihadist groups talk about, about your personal religious obligation to attack the West.
Dr Shanahan gave evidence about a publication on the offenders' phones dated 20 December 2015 entitled "Advice to Those Who Cannot Come to Sham" (meaning, broadly, Syria and Lebanon). Dr Shanahan said: the idea of this online book was things that you could do to assist Islamic State if you weren't physically able to travel there, and it gave religious justifications for those actions. They [included] killing people in the non-Muslim lands in which you live … .

[11]

The offenders' culpability for religious fanaticism

There is no suggestion in the evidence or in the arguments put on behalf of the offenders that the commission of this offence was induced in any degree by social or economic marginalisation or by any reaction to police vigilance and enforcement activities with respect to terrorism. The offenders simply adopted a fanatical Islamic hostility toward non-Muslims and toward Australia's liberal democratic society in accordance with religious instruction they received, both directly and on-line.
Widespread sermonising and scholarship on the Internet, as tendered in this case, shows that those who believe Allah has instructed Muslims to impose their religion upon the world by violence derive this conviction from the Quran, believing it, as Dr Shanahan explained, to record "essentially what God has told his followers to do". The propagandists whose writings are in evidence in this case and terrorists who respond to their call (like the offenders now before the Court) cannot sensibly be regarded as mere anti-social deviants. It could not be clearer that jihadi propagandists and terrorists are motivated by religion and are able to identify scriptural support for their actions. They consistently invoke belligerent verses of the Quran.
In the belief of the propagandists, shared by Bayda and Namoa at the time of their offence, violence toward non-Muslims is not merely an incidental tactic for attracting attention to the faith or to issues which concern its followers. Relying upon the parts of the Quran which they cite and upon the example set by the Prophet, the ideology espoused in the online jihadi literature embraces never-ending war against non-believers as an inherent and central element of belief. This ideology elevates violence to the performance of a religious duty and an act of devotion.
Section 93Z(1)(b) of the Crimes Act 1900 (NSW) came into force on 13 August 2018. It is in these terms: 93Z Offence of publicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status (1) A person who, by a public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on any of the following grounds is guilty of an offence: (b) that the other person has, or one or more of the members of the group have, a specific religious belief or affiliation, Maximum penalty: (a) in the case of an individual - 100 penalty units or imprisonment for 3 years (or both), or (b) in the case of a corporation - 500 penalty units. (5) In this section: public act includes: (a) any form of communication (including speaking, writing, displaying notices, playing of recorded material, broadcasting and communicating through social media and other electronic methods) to the public, and (b) any conduct (including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia) observable by the public, and (c) the distribution or dissemination of any matter to the public. For the avoidance of doubt, an act may be a public act even if it occurs on private land. religious belief or affiliation means holding or not holding a religious belief or view.
Publicly disseminating in Australia the religious belief that Muslims are under a duty to attack non-believers (as taught by the online propagandists and by Bayda's Islamic mentors in Sydney in 2013) is an incitement to communal violence. Since the commencement of s 93Z(1)(b) of the Crimes Act it would constitute an offence in this State, not excused by the reference to scripture.
Although Australian citizens are not subject to penalty for their choice of belief by which to relate to God, teaching a divine duty of violence against non-Muslims is not within the law's protection. It goes beyond personal religious experience and counsels criminal breaches of the peace. The whole concept of inclusive tolerance would be destroyed if respect and protection were accorded to beliefs that are themselves violently intolerant and that conflict with secular laws designed to secure diverse freedom of worship for all.
Even at 18 and irrespective of their knowledge of the law Bayda and Namoa should have understood that their belief in Allah's instruction to attack everyone who has a different religion from their own and to seek to impose Islam by force would stand condemned by the standards of the civilised world. It should have been apparent to both of them that citing verses of the Quran and recounting deeds of the Prophet from 1400 years ago could not make such a purported divine command acceptable as a religious concept, according to reason and human decency.
Terrorists' reliance on verses of the Quran to support an Islamic duty of religious violence has been seen with more or less clarity in a number of NSW and Victorian cases: see R v Khaja (No 5) [2018] NSWSC 238 at [72]-[78], [98], [101], [122]. The many Australian Muslims who wish to live in peace with the whole community may reflect that if Islam accepts the entire Quran as Allah's eternal instruction to believers, without explicit repudiation of verses which ordain intolerance, violence and domination, that unqualified acceptance will embolden terrorists to think they are in common cause with all believers and indeed that they are the spearhead of the religion. The scriptural support for the terrorists' perceived obligation of jihad cannot be rebutted by Australian courts or law enforcement authorities. If the verses upon which the terrorists rely are not binding commands of Allah, it is Muslims who would have to say so. If Australian followers of the religion, including those who profess deep knowledge, were to make a clear public disavowal of these verses, as not authoritative instructions from Allah, then the terrorists' moral conviction might be weakened.
The incitements to violence which terrorists quote from the Quran cannot just be ignored by the many believers who desire harmonious coexistence. Those verses are not ignored by terrorists. As seen in this and numerous other prosecutions, the hostile verses are inspiring serious crimes. In turn those crimes have the capacity to provoke social division and mistrust.
The apparent message of these verses is not answered by non-specific and unelaborated suggestions, from various quarters, that "there are other verses" or that "it is an interpretive religion" or that the hostile passages are "cherry picked". Assurances are from time to time offered to Western communities that "Islam is a religion of peace" and that the faith of Muslims requires them to obey the laws of a country in which they are in a minority. But in the absence of express public disavowal of verses which convey Allah's command for violence, as quoted in the jihadist literature tendered in this case, such assurances are apparently contradicted. Certainly that is how the matter is seen by jihadi propagandists and those who have followed them, including these offenders.

[12]

Bayda's abandonment of jihadism

Bayda gave evidence that after 15 months in the High Risk Management Unit at Goulburn prison on remand he no longer believed in Allah and confided this to his second cousin who was in custody with him. The cousin broke his confidence to other inmates of the unit who are convicted Islamic terrorists. They purported to approve physical punishment of Bayda. The cousin assaulted and threatened him. Bayda was then segregated.
Consequent upon these events Bayda has been in isolated custody since mid-2017. He said in evidence that he was depressed and suicidal, without any religious faith, from May 2017 to June 2018 and that he then turned to Christianity. I have insufficient evidence from which to be satisfied on the balance of probabilities that this conversion is meaningful. Because of his remand in custody there has been no opportunity for Bayda to demonstrate genuine Christian philosophy or belief. However it is not necessary that he should convert to another religion in order to renounce the fanaticism which was inherent in the offence of which he has been convicted.
Bayda gave evidence that he has abandoned Islam altogether because he has ceased to believe in Allah's command of violence and he does not consider the religion as a whole can be separated from that concept. Bayda described salafists as people who "take the [Quran] literally and they want to live exactly as Muhammad, the way Muhammad [lived]" including, he said, following the instruction of Allah for violent domination of people of other faiths. Bayda said that he understood the overwhelming majority of Sunni Muslims are not salafists but are, in his terms, "moderate". He then gave the following answers: Q And when they're not Salafists then how do Sunni Muslims who aren't following that Salafist approach, how do they treat the word of Allah, which you say is in the Quran, that they should, and are [under] a duty as Muslims [to], fight and subjugate people of other faiths? How do they reconcile not doing so with their belief and acceptance of the Quran? A Well they don't, they don't reject it. Q They don't reject those parts of the Quran? A They don't reject it. They just, I would say, ignore it. Q They ignore it? A Yes.
I see no reason to doubt that Bayda holds these views sincerely. It is entirely credible that his parents should not have found in Islam the violent intolerance of non-Muslims to which Bayda was introduced at Bukhari House and online. His father was brought up in Lebanon, speaks only Arabic after 18 years in Australia and no doubt works and socialises with others of similar background. According to Bayda his father does not possess a Quran or attend a mosque. He may never have had any occasion to inquire what Islam has to say about people of other faiths. Bayda on the other hand has inquired. He has encountered the differences between Australia's liberal society and the teachings of Islam. Learned instructors in the religion have taught him, from the Quran and from the example of the Prophet as they recount it, that it is a Muslim's religious duty to resolve the differences with violence.
The Crown challenged Bayda's evidence that he perceives Islam to be inseparable from belief in a divine command to kill non-Muslims. Bayda said he could not live as a moderate Sunni and gave these answers when challenged as to why not: A From what I've learnt about Islam. Q Yes? A I've read many books about Muhammad, about the religion, I was spending time in the HRMU [High Risk Management Unit] with the rest of the extremists. From what I understand there's only [-] a [person] who wants to practise as the Quran, as Muhammad taught, there's only one way and that is to practice jihad and violence, 'cause that's what the Quran encourages. …. Q I'll ask you this way sir. Do you seriously say to his Honour that you could not see a way to practise Islam and to live in peace with your fellow man, is that what you're telling his Honour? A Yes.
Bayda rejected a suggestion from the Crown in cross examination that his claim to have adopted Christianity was "no more than a pretence to try to mitigate the penalty you fear you may face". He answered further questions as follows: Q But in any event whatever view may be taken of your sincerity with respect to the Christian religion you maintain, do you, that you have renounced Islam? A Yes. Q That you disavow what you understand to be the teaching of the Quran, that hostility, intolerance and violence should be exhibited towards unbelievers? A Yes. Q You do not accept those commandments from Allah, as you understand them to be in the Quran, as valid, and really as the word of God? A That's correct. Q You don't? A No.
Bayda said that "according to Sharia law a person who leaves Islam is called an apostate and the punishment is to be crucified". I consider it credible and realistic that he should fear physical retribution for renouncing his religion. He has described a serious assault and threats within the prison system in May 2017 as a result of disclosing his loss of faith. His understanding that sharia prescribes punishment by death for apostasy is widely shared. It was confirmed in a televised interview in June 2016 by Ahmed el-Tayeb, Grand Imam of Al Azhar University in Cairo, the pre-eminent seat of Islamic learning. Bayda is obviously known to Islamic fanatics within the HRMU. They, and possibly sympathisers outside the prison, might well take this aspect of Islamic law seriously despite its obvious repugnance to the laws of this State.

[13]

Namoa's background

Namoa was born in Sydney and attended primary school with Bayda but they were at separate schools during high school years. She has four older brothers, an older sister, a twin brother and a younger brother. Namoa had learning difficulties in primary school which increased in high school. She became, by her own account, angry and aggressive. This progressed to depression and symptoms of generalised anxiety disorder. Behavioural problems prevented her completing her final year of high school and she left at 16. Year 9 was the highest level she attained satisfactorily.
Dr Furst, whose report was tendered on her behalf, gained the impression that Namoa's cognitive function is well below average. She told Dr Furst that during her childhood and teens she was exposed to violence, both within her family home and in the neighbourhood. This does not appear to be presently relevant except to the extent it may explain her behavioural and emotional dysregulation at school. Her only working experience has been two months in a cafe in the Sydney central business district in 2013.
Namoa's mother appears to be supportive, judging from attendance at court during the trial and from text messages sent at the time of Bayda's arrest. Those messages indicate that in late January 2016 Namoa's fanatical Islamic outlook made her hostile to her mother and difficult to help. One of her brothers also attended court during the trial and sentence proceedings. Both Namoa's mother and her twin brother provided to the Court letters conveying strong family loyalty to her and representations concerning her favourable characteristics.
On 5 February 2016 Namoa was summoned to give evidence before the Australian Crime Commission, presumably in relation to her apparent involvement in terrorism. She attended but refused to answer questions and was subsequently convicted on 31 counts of refusing or failing to answer a question at a hearing. Concurrent sentences of 8 months imprisonment with a non-parole period of 4 months were imposed. The imprisonment has been served out during her remand on the conspiracy charge.

[14]

Namoa's eventual abandonment of Islamic fanaticism

In prison over the first five months of her remand, from 5 February 2016, Namoa was medicated for depression and her mental state appeared to deteriorate. In late June and early July 2016 she appeared to have psychotic symptoms. These apparently resolved in the second half of 2016 and have not recurred.
Letters written by Namoa from prison during March and April 2016 show her Islamic fanaticism continuing unabated. They show her lack of insight, at that time, regarding the wrongfulness of encouraging Bayda, on 30 and 31 December 2015, to carry out what she expected to be a suicide attack on unbelievers in the name of Allah. The following examples are typical of her convincing herself she had done nothing wrong: I still don't understand why we're both locked up like animals. We didn't do nothing wrong and if reading documents were illegal well I didn't know. I still don't know what kind of terrorism I was doing. I cry every night Mum you know how weak I am yet they think I'm a terrorist. Me and Sam had nothing to do with whatever they think we were involved in. I didn't hurt anyone, how am I more dangerous than a murderer?
Namoa's conduct at the time of her arrest and her letters from prison show her immaturity, lack of critical judgment and immersion in jihadist thinking. On the premise she had done nothing wrong her letters of March and April 2016 adopted a posture of righteous victimhood. She issued a stream of imprecations against the laws and authorities by which she was in custody. She wrote of herself as a prisoner of conscience, held by oppressors of the Muslims. She invoked Allah to strike them all down.
There are numerous of these letters, saturated with Islamic self-righteousness and oblivious to the concern of law enforcement authorities to protect the community against jihadist violence. A number of the letters were written to male Muslim prisoners in terms which assume acceptance by those prisoners of jihadist doctrine. The volume of this correspondence tapered off through May, June and July 2016 but Namoa again expressed such ideas, in violent and abusive language, in a letter written on 8 September 2016.
Namoa wore a hijab, a scarf covering her hair, throughout the trial in September 2018, giving the impression that she continued in her Islamic faith. However she told Dr Furst: I abandoned my extremist views over 12 months ago [by December 2017]. I was only 18. We all make mistakes. … I have no interest in this shit, this radical bullshit anymore. … [Bayda] is Christian now. I want to follow him.
On 7 October 2018 Namoa informed correctional staff at the facility where she is held that she had renounced Islam altogether and reverted to Christianity. That was only two days after the jury had returned their verdict of guilty, which on first impression provokes scepticism about her sincerity. However Namoa gave evidence that she continued to wear the hijab on advice of correctional staff, in order to conceal from other inmates that she is not practising the religion. I accept that there would be a risk of violence towards her by other Muslim inmates if they believed she had renounced.
In her letter to the Court on sentence Namoa attributed her jihadist Islamic fanaticism in 2015 and 2016 to teenage immaturity which she says she has left behind: In my defence at the time of my arrest I was a regular teenager in love that made many mistakes as any other during my transition to adulthood. I had found a curiosity in a subject that I was eager to understand. As a then young foolish teenager I extensively searched for knowledge and understanding without considering the repercussions of my actions and speech. I highly doubt that there exists any regular teenager that adopts this sensible thinking process automatically. All inappropriate conversations were merely projected from me, as a then childish, impulsive and hypothetical thinking teenager. … I meant no harm, but in truth, I had an unhealthy curiosity of that which carried federal consequences that I was oblivious to.
In this letter Namoa described herself as "a sincerely remorseful adult" and continues: [M]y lonely days [in custody on remand] have forced me to realise how much I regret my childish mistakes. Essentially this time on remand already feels like an indefinite life sentence without my freedom and family, as well as any human contact. I am trying everything in my power to further distance myself from any form of extremism and individuals that adhere to my previously held beliefs. I'm embarrassed by my previous fanatical mentality, it was a phase for me, a phase in which I've grown out of over a year ago.
Her letter went on to refer to jihadism as "the rather disgusting ideology I once felt sympathetic towards" and stated that she is participating in a prison program designed to divert offenders from extreme views.

[15]

Assessment of Namoa's Islamic fanaticism

I do not find it necessary to determine with what degree of sincerity Namoa has reverted to Christianity. Three years have passed since the offence was committed and two and a half years since she penned the fanatical letters to which I earlier referred. I am satisfied she no longer accepts the command of Allah for Islamic domination by violence.
Namoa's evidence that her belief in jihadism was a childish phase from which she has matured is supported by surrounding circumstances. She has not studied Islamic scriptures with sufficient thoroughness or understanding to have acquired from them a deeply embedded intellectual belief in a duty of religious warfare. I find that she was drawn into acceptance of salafi jihadism at a superficial and emotional level, as a doctrine that gave her a sense of belonging to something, a sense of purpose and a channel for expression of aggressive feelings.
Namoa at 18 was highly susceptible to militant Islamic brainwashing. Educational difficulties and concomitant frustration and anger during school years necessarily led to a degree of isolation, probably compounded by her lack of involvement in the workforce since leaving school at 16. Dr Furst accounted for her vulnerability in these terms: Ms Namoa has a history of mental health problems that have been present since at least 2010, probably longer, and persisted throughout her late childhood and teens, including depression, anxiety, emotional dysregulation, low self-esteem, low self-worth, anger issues, learning difficulties and a level of cognitive function that appears to be well below average. … Her history of emotional and behavioural instability, low self-esteem, and low self-worth were identified by [a clinical psychologist who reported on her in 2011, 2012 and 2016] as factors that made Ms Namoa vulnerable to being influenced by others and were also thought to be related to her recent conversion to Islam. Her suspected learning difficulties were thought to be manifesting in social and cognitive immaturity, with suspected deficits in consequential thinking and a general executive function … including problem-solving and higher order thinking. In my opinion, the deficits identified by [the clinical psychologist] are clearly related to her mental disorders/conditions and likely played a role in her conversion to Islam and attraction towards the extremist Jihadist ideologies of Islamic State … Her mental health problems outlined above probably also made her vulnerable to the influence of her co-offender and/or other individuals holding extremist Jihadist ideologies, which is likely to have been a significant factor in her offending.
Having considered Namoa's developmental history, her extensive text exchanges and intercepted phone conversations with Bayda, her letters, her oral evidence and her demeanour in the witness box, I have no hesitation in accepting Dr Furst's analysis. Any 18-year-old can be seduced by an ideology. The jihadists' propaganda would be highly persuasive for anyone susceptible to divine dogma, given the impressive scriptural scholarship offered in support. Most would balk at a doctrine of purported instruction from a deity to kill people who do not share one's religious beliefs. Namoa lacked the intellectual strength to bring reason and humanity to prevail against this outrageous concept. As she said in her letter to the Court, fundamentalism (by which she referred to the jihadist ideas she had read) is: the only thing I've seen widespread online which was always labelled as the path of Islam.

[16]

Objective seriousness of the offenders' conspiracy: s 16A(2)(a)

The gravity with which Parliament regards the offence of conspiracy to do acts toward preparation and/or planning for a terrorist attack is indicated by the maximum penalty of life imprisonment. Several aspects of the offence for which Bayda and Namoa are to be sentenced contribute to an inherent degree of seriousness. First, all terrorism offences have the propensity to cause generalised insecurity in the community. Secondly, where the ideological cause sought to be advanced is that of Islam, the crime involves an intention to intimidate the Australian public and/or Commonwealth or State governments, with the objective of destabilising the existing constitutional order. A crime of this nature is an attack on the framework of government and law.
Thirdly, any individual terrorism offence by which the ideology of Islam is sought to be advanced is a manifestation of what has become a persistent disruption of peace and security in the two largest cities of this country. Although the many individual Islamic terrorists who have been dealt with by the courts have not all acted in concert with each other, their separate offences have been unified by the perpetrators' adherence to a single religious ideology which has the object of breaking down democratic government and replacing it with Islamic rule. In R v Khaja (No 5) [2018] NSWSC 238 at [94]-[127] I summarised the cases of approximately 40 of these jihadists, involved in ten separate plans over the years 2003-2016 mainly in Melbourne and Sydney.
At the date of that judgment (March 2018) the most recent finalised case was R v Alou (No 4) [2018] NSWSC 221, in which Johnson J dealt with one of the terrorists who assisted Farhad Mohammad in his murder of Curtis Cheng on 2 October 2015. Since then this Court has sentenced two more of the offenders involved in that attack: R v Alameddine (No 3) [2018] NSWSC 681 and R v Atai (No 2) [2018] NSWSC 1797. In R v Abbas [2018] VSC 553 the Victorian Supreme Court sentenced one of four men who conspired between October and December 2016 to attack civilians in Federation Square, Melbourne. The other three have since been convicted. In R v HG [2018] NSWSC 1849 Bellew J sentenced a 16½-year-old boy who, with a co-offender, had purchased hunting knives in October 2016 in preparation for an imminent terrorist attack.
Taking into account these cases decided during 2018 and the attack by Hassan Khalif Shire Ali in Bourke Street Melbourne on 9 November 2018, the total over the past 15 years has now reached approximately 13 plots or actual attacks involving some 47 jihadists. More such cases are awaiting determination by the courts. This number of convicted Islamic terrorists whose offences span 15 years, all inspired by the same ideology and with the same objective, constitutes a significant phenomenon. This is to be taken into account in fixing a sentence which provides general deterrence.
Notwithstanding the features which make offences of this nature in general very serious, the particular instance now before the Court has elements which greatly reduce its objective gravity. The scale of an intended attack is an important consideration in determining the objective seriousness of an offence against ss 11.5(1) and 101.6(1) of the Criminal Code: Fattal v The Queen [2013] VSCA 276 at [165]. Here, for two days at the end of December 2015 the conspiracy was directed to the New Year's Eve attack. The Crown did not challenge Bayda's evidence regarding the limited objective of that plan. I could not be satisfied beyond reasonable doubt that anything of greater scale was at that time proposed.
From 1 January 2016 to the date of Bayda's arrest the conspiracy had no defined objective and was not developing in intensity of planning or in specification of an objective. On the contrary, in mid-January 2016 the offenders' intercepted phone conversations were concerned with romantic, domestic and employment subjects. I am not satisfied that they were speaking in code during these conversations or that they were dissembling or deliberately avoiding more sinister subjects to avoid detection. The intercepts show no indication of such concealment.
The duration of a conspiracy is relevant to its objective seriousness. This one continued into the first two weeks of January 2016 but there is no evidence upon which the Court could impute that the offenders' very limited preparations of holding the Tactical knife and the shahada flag were accompanied by any formed intent as to a particular degree of violence or property damage which would be inflicted. The continuance of the conspiracy after 1 January 2016 had only a nebulous object of some act of terrorism at some time.
An offence of doing acts in preparation for a terrorist act contrary to s 101.6(1) will not necessarily be of reduced seriousness merely because the planning or preparation did not reach an advanced stage: R v Lohdi [2006] NSWCCA 360 at [65]-[66], [229], [232]. The same must apply to a conspiracy to commit the substantive offence. However where a conspiracy is in existence for only two weeks, where its first objective is abandoned and a replacement is conceived in only the vaguest terms, these factors support an assessment of a relatively low order of seriousness.
The objective seriousness of this offence is reduced, also, by the relative superficiality of the offenders' ideological conviction. Both of them talked the talk of Islamic supremacism and bigotry towards non-Muslims. But it is fair to recognise that the teaching and propaganda of Allah's command to kill unbelievers did not take hold of them to the point of Bayda actually carrying out street violence when the opportunity arose or either of them making effective preparations for any more substantial attack. Overall this conspiracy was at the lower end of the wide range of possible gravity of an offence of this type. Bayda's criminality was the greater because the initiative came from him and he exercised a degree of influence over Namoa. So far as any action was taken pursuant to the conspiracy, it was taken by him.
I have considered a table of sentencing decisions provided by the Crown. This refers to all the cases I have cited above and those which I summarised in R v Khaja (No 5). The objective seriousness of each offender's participation in the conspiracy in this case was of a significantly lower order than what was proved in any of those cases. The combination of low order objective seriousness and mitigating subjective features which were absent from the other cases (including renunciation of violent ideology) mean that the sentences for Bayda and Namoa will be significantly shorter than those imposed in the cases cited.
The need for incapacitation is often a central consideration in sentencing for this type of crime but I do not see it as having a significant role for these offenders. Neither of them has exhibited, either in the commission of this offence or on other occasions, a strong will to carry through an act of violence. Neither of them, in my view, remains motivated by jihadist ideology.

[19]

Personal and general deterrence: s 16A(2)(j) and (ja)

As required by s 16A(2)(m) of the Crimes Act 1914 (Cth) I take into account the character and antecedents of each offender. I have already referred to the evidence on that subject. An additional consideration is that neither has any relevant criminal record. Namoa's offences of refusing to answer questions in the Australian Crime Commission occurred after the conspiracy had been disrupted by the arrest of Bayda and arose from the offending comprehended in the conspiracy.
With respect to Namoa the part of s 16A(2)(m) which concerns the offender's mental condition is relevant. I consider that her history of mental health problems, described by Dr Furst in the extract from his report at [102], materially contributed to her engagement with militant Islamic ideas and hence to the commission of the offence. In accordance with the principles stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177], this reduces the need for specific deterrence and for denunciation. The causal effect of Namoa's mental disturbances makes it inappropriate to penalise her at a level which might otherwise have been called for by way of deterrent to others.
In KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22]-[26] McClellan CJ at CL drew together the principles to be applied in sentencing youthful offenders. In R v Khalid [2017] NSWSC 1365 Bellew J summarised and restated those principles as follows (at [109]): 1 Considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. 2 The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. 3 Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. 4 Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. 5 The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself, and has committed a crime of violence or considerable gravity. 6 In determining whether a young offender has engaged in "adult behaviour", the Court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence. Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society. 7 The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity. A 'child offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age. However, the younger the offender, the greater the weight to be afforded to the element of youth.
The authorities consistently treat the mitigating effect of the offender's youth as being diminished in proportion with the gravity of the crime. The relative seriousness of this crime was not so great as to disentitle the offenders from significant consideration for their youth. Both were demonstrably immature, even for their age. In Namoa's case this is the subject of professional opinion. In Bayda's case I find that his posturing to Namoa on New Year's Eve to aggrandise the level of his commitment to Islamic militancy and his pretence that he faced martyrdom are manifestations of immaturity rather than deep fanaticism. The intercepted phone calls between the two offenders in mid-January 2016 are further evidence of his immaturity relative to chronological age.
Each offender was drawn into commission of this offence by indoctrination in Islamic jihadism. Neither has any other background influence or disposition toward crime. I find both of them genuine in their renunciation of fanatical beliefs. The need for general and specific deterrence is reduced. The realistic objective of facilitating rehabilitation is correspondingly more important in sentencing them. The offenders have expressed remorse and contrition, which I also find genuine. The public interest will best be served by moderation in sentencing.
Both offenders have at least commenced to develop reason and humanity in place of blind, submitting belief. The evidence heard since the jury gave their verdict justifies some confidence that on their return to the community Bayda and Namoa will show respect for the beliefs of others and for the laws of this country which protect the freedom of its citizens to pursue personal spirituality in their own way.

[20]

Assistance to authorities: ss 16A(2)(h) and 16A

Bayda has provided assistance to authorities which must be taken into account in accordance with s 16A(2)(h) of the Crimes Act. He has undertaken to cooperate in other proceedings and therefore the degree to which his sentence is reduced on that account must be specified. The Court has received confidential affidavits on the sentence proceedings (Exhibits B3-B8) which specify the nature of assistance provided and confirm its value in the opinion of the responsible officers. It would not be appropriate to detail the nature of the assistance in these remarks. I take into account that Bayda said in open court he proposes to give evidence against the perpetrator of the assault upon him in the HRMU at Goulburn. Under the Crimes (Sentencing Procedure) Act 1998 (NSW) assistance of that nature may be the subject of a discount: see RJT v R [2012] NSWCCA 280 and R v XX [2017] NSWCCA 90. It is not necessary for me to decide whether that is equally applicable in Commonwealth sentencing because, in the circumstances of the present case, Bayda's assistance with respect to the assault upon himself would not cause me to reduce his sentence further.
Bayda's cooperation with authorities has already made his conditions of custody on remand more onerous than those of most prisoners. This has been the case for approximately 18 months and will continue until he is released. Inevitably an offender who cooperates with authorities faces the risk of retribution and I accept that that is a concern of significance for Bayda.
Decisions of the Court of Criminal Appeal have addressed the maximum levels of sentence reduction which may be allowed for the combination of a plea of guilty and the provision of assistance. In Z v R [2014] NSWCCA 323 it was held that when there is no plea of guilty, as in the present case, 25% should not be regarded as a ceiling on the available reduction. Taking all considerations into account I will reduce by 20% the sentence which I would otherwise impose. Of this I attribute 15% to assistance to be provided in the future.
Namoa has cooperated with police to the extent of allowing herself to be interviewed in custody and answering questions in a manner which the responsible officer regards as frank. I do not consider that her compliance with the police request in this respect warrants specification of a particular discount but I treat it as reinforcing her expressions of contrition and confirming her progress in rehabilitation. It contributes to the overall mitigation of her penalty.

[21]

Sentences

I am satisfied that there is no sentence other than imprisonment appropriate in all the circumstances of the case. Bayda's sentence should commence from the date of his arrest, the whole period on remand to count. Namoa's sentence should be accumulated by 1 month on the sentence she has served for refusing to answer questions in the Australian Crime Commission. There was in that refusal an additional and distinct element of criminality which warrants a degree of accumulation, notwithstanding the occasion for her being required to answer questions arose out of her participation in the conspiracy. Her sentence will therefore commence from 1 month after her arrest on 23 February 2016, namely, from 23 March 2016.
In each sentence the non-parole period will be fixed at 75% of the head sentence, in accordance with s 19AG of the Crimes Act. Bayda's head sentence would have been 5 years but for his cooperation with law enforcement authorities. It would have been 4 years and 8 months but for his future assistance alone.
In respect of Sameh Bayda the orders of the Court are: 1. For the offence of conspiring to do acts in preparation for, or planning, a terrorist act between 8 December 2015 and 25 January 2016 at Sydney, Sameh Bayda is sentenced to imprisonment for a period of 4 years commencing on 25 January 2016 and expiring on 24 January 2020. 2. A non-parole period of 3 years is fixed commencing on 25 January 2016 and expiring on 24 January 2019. Sameh Bayda has been eligible for release on parole from 24 January 2019. 3. Pursuant to s 105A.23(1) of the Criminal Code (Cth) Sameh Bayda is warned that an application may be made for a continuing detention order requiring his continued detention after the completion of his sentence.
In respect of Alo-Bridget Namoa the orders of the Court are: 1. For the offence of conspiring to do acts in preparation for, or planning, a terrorist act between 8 December 2015 and 25 January 2016 at Sydney, Alo-Bridget Namoa is sentenced to imprisonment for a period of 3 years and 9 months commencing on 23 March 2016 and expiring on 22 December 2019. 2. A non-parole period of 2 years and 10 months is fixed commencing on 23 March 2016 and expiring on 22 January 2019. Alo-Bridget Namoa has been eligible for release on parole from 22 January 2019. 3. Pursuant to s 105A.23(1) of the Criminal Code (Cth) Alo-Bridget Namoa is warned that an application may be made for a continuing detention order requiring her continued detention after the completion of her sentence.