R v Betka

Supreme Court of NSW|2019-12-18|Before: Harrison J

REMARKS ON SENTENCE

HIS HONOUR: Belal Betka has pleaded guilty to a single charge under s 119.1(2) of the schedule to the Criminal Code Act 1995 (Cth) of engaging in hostile activity in Syria. A further charge under s 119.2(1) of the Code, of entering Al-Raqqa province in Syria, being reckless to the fact that it was a declared area, is listed on a schedule pursuant to s 16BA of the Crimes Act 1914. The former offence under s 119.1(2) is an offence under Part 5.5 of the Code and is a terrorism offence as defined by s 3 of the Crimes Act. However, it is not the same as an offence committed contrary to Part 5.3 of the Code. Part 5.5 is headed "Foreign Incursion and Recruitment". Part 5.3 of the Code is headed "Terrorism", and includes planning or committing an act of terrorism in Australia. This distinction has been recognised in R v Succarieh [2017] QCA 85 at [142], DPP v El Sabsabi [2017] VSCA 160 at [47]-[48] and R v Biber [2018] NSWCCA 271 at [38].

Facts

The following matters are taken from an agreed statement of facts signed by Mr Betka.
Mr Betka was born in Australia in 1992. He is currently 27 years of age. He is a dual national and has Algerian citizenship. He was married at the end of 2014 but is now separated from his wife. He travelled to Syria via Malaysia with his then wife in 2015, leaving Australia on 7 March of that year. They arrived in Syria about six days later. While there, Mr Betka and his wife entered Al-Raqqa province, which was a "declared area" under s 119.3(1) of the Code with effect from 5 December 2014. That declaration was revoked on 27 November 2017 following liberation of the province from the Islamic State.
On 11 July 2015, there was a withdrawal from Mr Betka's bank account at an ATM in Tekirdag, Turkey. There are no records of withdrawals from that account or records of any other account activity between 12 March 2015 and 11 July 2015. Mr Betka and his wife left Turkey for Algeria on 18 July 2015. They left Algeria on 21 October 2015 and arrived back in Australia on 23 October 2015.
Upon arrival in Australia, Mr Betka and his wife were interviewed by the Australian Federal Police Returned Terrorist Suspect Team. They each declined to answer questions. An inspection of their luggage failed to locate any electronic items, cameras or mobile phones. They were not detained.
Mr Betka was arrested on 19 December 2017 following the execution of a search warrant at his home in Sydney. He was charged with the offences referred to earlier, as well as some money laundering offences contrary to s 400.3 of the Code. Mr Betka was not under surveillance of any kind for terrorism related activity in the two-year period between his return to Australia in October 2015 and his arrest in December 2017.
In addition to the agreed facts, Mr Betka gave evidence in the form of an affidavit dated 16 December 2019. He was cross-examined. Although the agreed facts include details of events since Mr Betka's return to Australia, they unsurprisingly do not refer to Mr Betka's activity in Syria. Mr Betka's detailed recollection of his time there is therefore both highly instructive and extremely relevant for present purposes. Though quite extensive, it is important that the following extracts from the affidavit be recorded in these remarks: "11. I remember that during 2011/2012 I began becoming interested in the conflict in Syria. It was the topic of conversation amongst a lot of my friends who were also Muslim and amongst the Muslim community. 12. I began attending Mosques and learning my religion. 13. I began going to Mosque at about 23 years old. I attended Lakemba and Belmore Mosques. There were always discussions about Syria and the need to help the people who were being killed and injured by the Assad regime. 14. The Australian Government was promising a lot [of] aid to Syrian refugees at this time and the Mosque was always doing fundraising for charities to assist refugees. I remember donating money to the charities and wanted to help. 15. By around 2013/2014 the Syrian conflict was all people spoke about at the Mosque and Assad's use of chemical weapons on his own people. I saw it as a war on innocent Muslims, namely women and children. 16. Around this time I began watching more and more on-line videos about the Syrian conflict. There was a particular YouTube channel called 'Vice' which posted a lot of videos, but it was not an Islamic State channel. 17. The videos that I watched promoted the need for people from the West to go to Syria in order to help, not so much with the fighting, but with the development of the country generally. I had been watching videos on YouTube and Facebook which promoted the good lifestyle that ISIS wanted the world to believe they were encouraging in Syria. 18. By 2014 I had stopped studying and working at the mechanics, but I was working for NRMA roadside assistance. I was still living at home. 19. I met [my then future wife] in June or July 2014 via friends at the Mosque. She was 21 and she was not very religious. [She] had been working as a sales woman for a shoe company. 20. [We] got married in December 2014 in an Islamic ceremony. I was 23 years old. 21. [We] had been donating to the Syrian refugee cause during 2014 and 2015 but during 2015 we could no longer do this as there were laws that had been introduced that meant we could no longer use Western Union to transfer sums to Syria. I do not remember why that was the case, but I remembered we could not do it. It made me feel very powerless. 22. I felt I should go to Syria and help the anti-Assad forces. [My wife] agreed with me. We were even thinking of starting a family in Syria and becoming part of the Caliphate. 23. While I was in Sydney I remember reading a magazine that contained the contact details of individuals in Syria who you could contact and who could provide information about how you could come to Syria to help. I remember contacting someone by WhatsApp on my mobile phone. 24. I was given a telephone number on WhatsApp to call when we arrived in Turkey and I was told that a person would provide us with step-by-step instructions as to what to do… 25. We had to pay for all of our travel costs ourselves. 26. Around this time - early 2015 - I remember often looking at a website about the fight against Assad and how foreigners could help in Syria. I remember it had what I now know to be an ISIS logo (the black flag with the white writing) but I didn't realise that at the time. I did not know much about Islamic State in 2015, but what I did know was that they were fighting Assad and that was a good thing. 27. Looking back on this decision I realise I was very misguided and very misled by pro-Islamic State videos I had been watching. I had been misled about what my religion was about and should be about. 28 [We] left Australia on 7 March 2015 and spent one day in Malaysia and then we flew to Turkey, arriving on 13 March 2015. 29. When we arrived at the Turkey/Syrian border we were met by a contact and taken to Sanliurfa, which is in Turkey, but about 20km north of the border with Syria. We had been in Turkey for about five days at this point. We stayed in a hotel called Swiss Hotel. 30. Once we arrived in Sanliurfa we were taken to a safe house and waited there until it got dark for us to cross the border. We were to be picked up by our contact and taken over the border in Syria and taken to what was called a 'safe house'. We had a backpack with some clothes, some first aid kits, shoes, torches and lighters. I did not have army boots or camouflage gear. 31. The border between Turkey and Syria was deserted at night time when we crossed into Syria. There were no security guards or soldiers patrolling the area. At least 10-20 people crossed the border with us at that time. 32. [We] were worried about what would happen to us if things did not work out so [my wife] hid our passports in her bra. We figured that if we were searched, they would be safe and we were right. 33. When we were taken into Syria the person that met us wanted our mobile phones and passports. I said our passports had been lost and they believed this. We did hand over our mobile phones. 34. Once we were in Syria we were taken to a 'safe house' in a small city called Tall Abiad which was about 1km over the border into Syria. There were about 20 people who crossed the border together from all over the world. 35. I remember that shortly after arriving at the safe house we were met by a person who I believed was an Islamic State Mujahadeen. Of course, neither he nor anyone else ever introduced themselves as being from Islamic State, but I believed they were. 36. I was interviewed by this person and another person and asked why [we] came to Syria and what they [sic, we] wanted to do, that is, did I want to fight, do humanitarian work or just live there. I said, 'We are here to do humanitarian work, but I will need training.' We were constantly told to be patient. 37. We were in Tall Abiad for about two weeks. [We] were separated during this time - there was a house for men and a house for women. 38. After waiting for about two weeks in Tall Abiad we were taken to Raqqa, to another safe house. Raqqa is about 100km from Tall Abiad and the drive took about two hours. We travelled with a number of other foreigners. 39. We were in this safe house in Raqqa for approximately four weeks. Raqqa is a big city, just like any normal city. Apart from seeing men with guns and how it physically looked -run down, old cars - it was like a normal city, similar to how Lebanon looks. 40. I was getting very frustrated because we were not doing anything productive and no-one really seemed to know what to do with us. At this point our accommodation was paid for but we needed to spend our own money to buy food. 41. I would ask what I was going to be doing and how we could help. I was just getting told to be patient. 42. In Raqqa I was separated from [my wife] again. [She] and the other women were taken to a safe house, while the men were taken to Al-Tabqa Airport, which is Raqqa's airport, to work. I was aware that in August 2014 there had been a series of battles between Islamic State and the Syrian Army to do with control of the airport. 43. Al-Tabqa Airport was not like any airport you would see in Australia. It was pretty much destroyed, with bomb craters and wreckage everywhere and lots of tombstones. I had no idea what I was doing there, other than being told. 'Everyone does this when they arrive.' 44. [My wife] was in a safe house at this time, but I did not know where. There were about 20 foreigners who had been taken to the airport by Islamic State to work and we were divided up and placed in what were called 'stands'. 45. A stand consisted of approximately three men standing approximately 100m apart around the perimeter of the airport. The 'stands' were a 3-6 hour rotational shift. 46. I was given an AK-47 rifle at this stage, but I was not shown how to use it and did not know anything about it. We did not fire any rounds. I was not given any special clothing to wear - I was still wearing a pair of track-suit pants I had from Sydney. 47. When our shifts finished, we would just sit in an aircraft hangar [and] talk or we were playing soccer and volleyball. It was very boring. Again there did not seem to be any planning. Everything was very unorganised and I just felt like I was wasting my time and I was separated from [my wife]. 48. This went on for perhaps two weeks. After that we went back to Ar-Raqqa. We arrived and the men I was with were taken to another 'safe house'. 49. Annexed to the Statement of Facts are some photographs of [my wife] and I firing a rifle. The rifle is the AK-47 I was given by the commander from the airport. [We] are firing that weapon when we were together again at Ar-Raqqa. The photographs were taken at the Euphrates River. 50. Having a rifle was very common in Ar-Raqqa. The Arabic term for this was 'Sunna'. - it means that to carry a weapon is just part of the tradition. It is the normal thing to see in places like Algeria, Africa and Lebanon. 51. My commander told me that [my wife] and I could live together and that we could rent an apartment. I had to pay for the apartment. It was USD50 a month. 52. [We] bought a mobile phone and rented an apartment. 53. After a few days I had to return to a safe house in Ar-Raqqa, in the street of Abyard where I met another commander. I was there with men from all over the world - probably about 6-8 of us. We were called a brigade and our commander told us what to do. Our job was to go to the outskirts of a city called Kobane where we would bury dead people. 54. There had been a battle between ISIS and, I think, the PKK at Kobane. Kobane was about 150km north-west of Ar-Raqqa and close to the border with Turkey. 55. Kobane was outside of the front line of fighting at this point and I spent about three to six days there. I was there with people from all over the world, including other people from Australia, Germany, the United Kingdom and Sudan. I did not know any of their names. In Syria people use what's known as Koonya, which means a nickname. It was a miserable time. 56. We had to bury women, men and children - about 80 people in total. Most of these people were civilians. Our job was to gather the bodies and then take them and put them in a big grave that had been dug by an excavator machine. I did that for three days. 57. After completing that task, we were all taken back to Ar-Raqqa to see our wives. 58. Apart from being moved around there really seemed no organisation and no-one looking after us at all. I had lost my enthusiasm for being there. Nothing looked like it did in the YouTube videos I had been watching in Sydney. 59. After being in the apartment in Ar-Raqqa for about two weeks, someone from my group asked me to come and do a course on health care. This was really very basic and, in hindsight, useless. The training lasted for a couple of days, and I was shown how to do blood tests, how to make what the instructions called insulin, and how to bandage people. It seemed fairly hopeless, but this was the kind of work I wanted to do. 60. After doing this 'hospital course' for a couple of days I remember going back to the apartment and about a few days later I was told by our Amir (or Commander) that I was going to do some training in order to go and fight. The other men that I had been doing the hospital course with were told the same thing. 61. I was not happy about fighting because that was not what I had come to Syria to do. I was very frightened at that point about what fighting would actually involve. At this point I became aware that [my wife] was pregnant and she was also very scared and she wanted to now leave Syria. 62. Over time I noticed how poorly Islamic State was treating civilians in Ar-Raqqa. They would harass people for the way they dressed, the way they looked. 63. I was also never paid by Islamic State. I was supposed to get USD100 a month and an apartment but it never happened and we were living off our own money. 64. By this point I was becoming extremely disheartened. [My wife] and I had gone with a view of helping set up a new community and doing courses that may help people, but none of that was happening. I did not go to Syria wanting to fight, but I did go there wanting to help IS. 65. At this point we decided to leave. 66. I was using our mobile phone to speak to my father at this time. I told him we wanted to leave and needed to leave Syria. 67. On or about early June 2015 I became aware through speaking to my sister that my father was in Turkey. I contacted my father and told him that [we] wanted to leave Syria, and asked him whether he could help us. 68. By my calculation [we] left Syria during mid-June 2015. 69. [We] escaped from Raqqa and went to a place called Al-Bab, which is about two hours' drive away. We went to a house with a lot of foreigners. We had a lot of our possessions with us at that time, such as clothes and bags. 70. I was told to leave most of the possessions with these people and we began making our way to the Turkey/Syria border via these people who, we understood, were going to smuggle us out of Syria. 71. I later learnt from my father that these smugglers were paid USD2,000 to help to get us out of the country. Once we were in Kilis, [we] were driven over the border, entering Turkey, and then meeting my father in an area called Gazientep. 72. [We] stayed there for a few days and then made our way to Istanbul with my father. We were in Turkey for about a month before we went to Algeria. We stayed with my aunty in Tekirdag which is about three hours from Istanbul. [My wife] had to apply for an Algerian visa which took about two and a half weeks to get. We were not in Algeria for very long before we returned to Australia. 73. When I arrived in Algeria I was imprisoned for 28 days because I had overstayed my 90 day visa in Turkey and was under suspicion for being in Syria. I was beaten for six days. A wooden stick was used to repeatedly strike me on my knees, back, souls of feet and back of head during interrogation periods. 74. At times I would be asleep or laying [sic] on the floor, I would be kicked in the head, ribs, stomach and back. 75. During the night, at approximately 2am to 3am, cold water would be randomly thrown at me. I would be abused and sworn at during these times. 76. I was provided with foul food and contaminated water during this period. I had constant diarrhoea. 77. I look back on this period and do not understand what I was thinking. It now seems so crazy to have simply packed up my wife and life and decided to set up a new community in Syria while all this fighting was going on. I never considered myself particularly radical, I simply felt like it was some form of calling and that I had to help somehow. My emotions got the better of me. 78. When I returned from Syria and Algeria with [my wife] I was completely disillusioned. I separated from [my wife], who continued to be very observant. I just lost interest in religion and the cause of overthrowing the Assad regime. 79. I returned to living with my parents. I got my old job back with the NBN where I would fly to places like Tasmania and Dubbo for work. I did that job for a year. Then I started my truck driving business. It was very hard work. I had no interest in Islamic State, religion or politics. When I was not working I spent a lot of my spare time drinking and gambling. 80. None of these things is consistent with the type of religious extremist I am forced to live with at the High Risk Management Unit at Goulburn (HRMU). I do not identify with the religious extremism that exists in the HRMU."
This evidence will be referred to later in these reasons.

Facts in dispute

Counsel for Mr Betka identified three issues of fact that are not agreed.

How long Mr Betka was in Syria and Al Raqqa

The Crown contends that the best evidence of the date when or by which Mr Betka left Syria is to be found in the date when his bank account was next activated after he originally entered Syria from Turkey. That was on 11 July 2015. Mr Betka's evidence is that he left Syria in mid-June 2015. That is a difference of about four weeks.
Mr Betka was unable to draw upon any material, independently of his recollection, to support his version. It seems on the contrary highly probable that the activation of his account in Turkey coincided with his arrival there and the assumed need for money at that time. I am satisfied beyond reasonable doubt that Mr Betka left Syria in mid-July 2015. Fundamental to that conclusion is that Mr Betka was mistaken in his recollection. For the sake of clarity, I note that the difference between the Crown's contention concerning the period spent in Syria by Mr Betka and his own recollection is in my opinion of no particular importance or significance in the circumstances of this case.

What exactly was said in some of the listening device recordings

The Crown relied upon a significant amount of material taken from listening device recordings of conversations to which Mr Betka was party. These were harvested from an unrelated investigation in 2017. Mr Betka was not otherwise under investigation for the subject offence for which he is to be sentenced. The conversations span the period between 13 June 2017 and 10 November 2017.
Before proceeding further with this issue, it is necessary to understand the context in which the recorded conversations took place and the utility for present purposes, if any, of what Mr Betka said. The offence to which he has pleaded guilty is described thus: "Between about 13 March 2015 and 18 July 2015 did, while being at the time of the activity an Australian citizen, engage in hostile activity in Syria, being a foreign country."
In the light of his plea, this material is not relevant to the proof of Mr Betka's guilt. It is however proffered by the Crown upon the basis that Mr Betka's offence is more objectively serious if he can be shown to have engaged actively in hostile activities, for example by the use of weapons in combat, than if he were only performing humanitarian work such as tending to the wounded or supplying administrative support and assistance.
The agreed facts contained the following transcripts from the recorded conversations. At the risk of including too much material and in deference to the competing contentions of the parties, they are included here as follows: "13 June 2017 Excerpt 1: Mr Betka: Mmm … 'cause I don't really. They tried to grab me because they knew I was in the army for a couple of weeks. Associate: When you joined the army did they train you? Mr Betka: They trained me to typewrite. Associate: … OK. They treat Muslims … Mr Betka: Mmmm … Associate: In the army … Mr Betka: They're racist in the army. … Excerpt 2: Mr Betka: I went to Kobani … I smelt death … Mr Betka: After … been, like, two, four months, it's bad. I feel like … … Associate: … went to, what's the army base? … Excerpt 3: Mr Betka: My one group got bombed. Mr Betka: … He was sending an … from the internet, he was using a what do you call it a Turkey one. He still had his sim (card), it was in between Kobani and … Turkey, the border. It was raining … The commander came in, took his phone off him broke it broke everything. Two minutes later, bang it started raining, it started raining bombs. Associate: … Mr Betka: That's how the drones got us, the what's it called Associate: … mmm Mr Betka: The heat Associate: … the heat? Mr Betka: The heat was another one, … pitch black … the heat. Then the drone … gone up. Associate: … at night, with scopes, it's pitch black … yellow … even over there they've got … we just shoot wherever we want … … Excerpt 4: Mr Betka: It was raining hard it never stopped, never ever ever ever. Mr Betka: No. There's nothing to worry about … why am I sticking up for them? I can't stand the dogs … He's right. Ahmed copped it hard. He got bashed, bashed, bashed. May God destroy them, I swear. Associate: One thing about you … Mr Betka: … Anyone will tell … Syria … go fuck yourself … Mr Betka: One bloke he was like Sheikh Khaled … He was good but in the end … A lot of people thought they were bigger than him … Because in Syria they show off. They think they are the best they have the best 'gat' best guns, I've got this one … (tuts) I'm like go fuck yourself man, we are all here for the same purpose. … Excerpt 5: Associate: … I swear that's how hungry he was … Mr Betka: … they eat like scavengers … Associate: I know that … I had to … it's not like that… Mr Betka: … We help out, you know me, me I stocked up on bullets … I started giving bullets I swear … When it comes to weapons I'm like nah … I'm not like that … Except 6: Mr Betka: Ummm Aleppo Associate: Oh yeah Mr Betka: There was a tank at the airport … I spent like two days with him. Like how it works is you go twelve out. Twelve stay in the house … In the house separated. It's like a checkpoint. Associate: Hmmm. Mr Betka: It's dangerous anytime the checkpoint they can ambush you at anytime I swear. We'll be twelve out some nights then we will swap. So I was with him for two days kicking it until the next crew comes. Drop off, we go back home, it's complicated. And umm, that's the thing we were eating together I swear no one starved. The food I swear it's like not five stars but --- … Excerpt 7: Mr Betka: What I'm saying is … In this world that's bullshit. Muslim fighters especially ones that have lost their lives are ten times better than a person that's still living. There's no … you ask … ask a scholar or a sheikh whatever you want. 12 July 2017 Mr Betka: Do you get it? Associate: (silence) Mr Betka: … shot him - Associate: mmm Mr Betka: - and as we were climbing … the angle of the gun … Associate: Oh ok. Mr Betka: They're saying that they … themselves basically. But they're saying, … He didn't shoot himself … down. You know what I mean? And he goes what was that for? So if you shoot yourself now in the head, what's the chances of you going back? Associate: Yeah Mr Betka: The recoil of the gun is always clockwise it's not anti-clockwise. That's why I'm sick of … Associate: What's that? Mr Betka: … him … 25 July 2017 Mr Betka: ISIS Associate: What about it? Oh that. What made you go Billo was it for honestly just for a good time, or was it just a , what was it that made you want to go? Mr Betka: You know I've been to Afghanistan yeah? Associate: Really? (RATTLING SOUND) Mr Betka: You didn't know that? Associate: … come on … Mr Betka: Didn't your little birdie Ali say that, didn't tell you that? Associate: Ali Abbas? Mr Betka: Mmm. Associate: No. … Mr Betka: Praise be to God, I swear, I swear, I swear. They have actually made every single pinpoint of a AK gun … Associate: Do you know how much that gun was? Mr Betka: I swear on the Quran, I swear by God if you type in A-K-47 on the net (TAPPING SOUND) and put your rod, the safety, your I-socket, this is, if you fold it in or out. It's not wood um … the clip, your dots, to you know which country it's from (TAPPING SOUND) now. I swear I God , they haven't left anything they haven't done … man. Associate: And do you know what the fucker said (TAPPING SOUND) when I bought it the box the actual box said um, the most fucking gun around the world. Mr Betka: Most powerful assault rifle in the world. Associate: The what? Mr Betka: Most powerful assault rifle in the world. Associate: No. No, no. Mr Betka: … Associate: That … that toy gun … you know, the best toy gun goin' around … number 1. Mr Betka: Look, no, no I swear I'm actually serious. Even when you want to (CLATTER SOUND) strip it, you want to open it, even, every single, fuckin', point I swear to God it's not normal. (MUSICAL SOUND) Send this video to your brother. 5 August 2017 Mr Betka: His cousin married Maz. And he married, and she married Ahmed Merhi I know it was El Zayah … all the Sydney boys are there all the Melbourne Boys, UK … Everyone knows each other. Even Bassam …, he was Anwar Al Awlaki nah he was sheikh of the State for us… Associate: … So was … together Mr Betka: No. Associate: Really. Mr Betka: Mmm. Associate: Are you serious? Mr Betka: No. Because the language Associate: … Mr Betka: They can't put 'em together … the Russians, the Algerians and the … and all that. On the battle field instructions aren't clear. Associate: Yeah. Mr Betka: deployment … go back. Associate: True … Mr Betka: There's a lot of slang things. They use a lot of slang. But the lebbos Algerians, the Moroccans, the Tunisians all different languages. Associate: Yeah. Mr Betka: And on the battle field they use Formal Arabic Associate: Yeah. Mr Betka: Algerians, a lot of people got killed, like, 'cause they use street words. Associate: Yeah. Mr Betka: The, the - - - Associate: That's not on purpose but it's … Mr Betka: Like, no …. They are just talking as if they are one of the boys. Associate: … Mr Betka: And they don't understand and it rained on them. They got blown. 10 November 2017 Mr Betka: When I was overseas, went to a, there's a airport. It's called, ah Tabqa Airport there was tombstones, we were actually smashin' 'em 'cause we have to destroy it. I swear Associate: So like ISIS were like taking them off? Mr Betka: It's not about ISIS, Islamically, a structure or a tombstone is a statue a statue in other words is no good you can't it's forbidden. Associate: Mmm Mr Betka: You know what I mean? Associate: Yeah. Mr Betka: We smash them if they are Sunni, we have a book of the names or whatever. … Mr Betka: Everyone was Nusra. Everyone's been with Nusra as well. (RUSTLING SOUND) … Associate: Huh? Mr Betka: Everyone's been with Nusra as well. Associate: What do you mean, you know, if my brother Osman --- Mr Betka: All of us. Every single one of the boys. We never had anything against anyone. I swear, I'm serious. … Mr Betka: And the smell, I've smelt the dead as well Associate: Where? Mr Betka: … in Syria. Associate: Mmm. Mr Betka: … someone… some of them they smell… Associate: … after you …? Mr Betka: … you don't wanna leave, the smell is, you can say it's musk but that musk is like wow I swear to God you just wanna stay there…"
The Crown submitted that this material reliably informs the nature and extent of Mr Betka's activities in Syria. There is said to be no evidence that Mr Betka was exaggerating or fabricating these accounts. The conversations were covertly recorded and Mr Betka was speaking in an unguarded way. On the Crown's submission, his spoken version is a clear account of what Mr Betka did while in Syria. In summary, Mr Betka: 1. Joined the Islamic State army and was trained to type; 2. Became part of a group with a commander that was bombed; 3. Engaged in conflict where his group was attacked by drones which had been detected by one of their number using a mobile phone; 4. Fired a weapon wherever he wanted at night when it was dark; 5. Stocked up on firearm rounds and distributed them; 6. Manned a checkpoint in the vicinity of Aleppo airport which was dangerous due to the ever present threat of ambush; 7. Used a firearm; 8. Remained present at Tabqa Airport in the Al-Raqqa province and smashed tombstones because they were forbidden structures.
The Crown emphasised that from these recorded conversations it appears that Mr Betka also made the following observations concerning his time in Syria: 1. Muslim fighters, especially those who have died, are "ten times better" than a person who is still living; 2. The different nationalities and languages of foreign fighters caused difficulty so they consequently used formal Arabic on the battlefield; 3. He smelt death in Kobani; 4. Everyone was "with Nusra", a reference to the insurgent group Jabhat Al-Nusra; 5. He considered the AK-47 to be the most powerful assault rifle in the world.
The Crown contended that this material revealed that Mr Betka was "heavily involved in armed hostility". In my opinion, this is not what the listening device recordings establish. I disagree with the submission that they are an accurate or unalloyed account of what Mr Betka did in Syria. They are significantly short on detail having regard to the time that he was there. In my estimation they do in fact evince a sense of exaggerated self-promotion: it is in this context in my view not without significance that they are conversations with an unidentified female. They must also be compared and contrasted with the evidence given by Mr Betka in his affidavit. Having regard to the fact that I must be satisfied beyond reasonable doubt of any issue unfavourable to Mr Betka, I am not satisfied that the listening device transcripts establish that Mr Betka was "heavily involved in armed hostility". Indeed, except in the most peripheral ways, such as standing guard at an airport for hours in the dark, or burying bodies after a battle in which he was not involved, I cannot be satisfied that Mr Betka was or became actively involved in fighting at all.
By way of example, I note the incident in which someone is said incautiously to have used a mobile phone that revealed the group's location. Mr Betka refers to the fact that "the commander came in" and presumably reprimanded that person or explained why they were being targeted. That rather suggests that they were inside a building together, not outside on the streets or on a battlefield engaged in fighting.
The photographs of Mr Betka holding or firing an automatic weapon are also, with one minor exception, curiously all taken of him with his wife. None of them is taken in combat, in which the women were not engaged. She is also photographed with a weapon in identical circumstances. None of the pictures is taken in the actual or inferred presence of other fighters in his group. The single photograph taken without Mr Betka's wife neither shows his head nor is it obviously taken in combat. Mr Betka's concession offered in cross-examination that he was in a conflict zone with his gun when "bombs started raining down" is quite simply not the same as being actively engaged or involved in fighting, particularly given the Assad regime's notoriously indiscriminate choice of military and non-military targets.
In summary, the listening device transcripts do not by themselves satisfy me that Mr Betka became involved in actual combat. They are also at odds with, or at least not supported by, other evidence, such as the photographs, upon which the Crown relies. Finally, Mr Betka in any event challenged the transcripts, and the recordings from which they are derived, as "hopeless". The recordings are difficult to hear and the transcripts contain significant gaps. In short, Mr Betka did not accept what is extracted as an accurate translation or interpretation of what he said. However, having regard to the view I have formed of the significance of the material, it is unnecessary to resolve that dispute.

Who owns the USB found in the wardrobe

The Crown also relied upon material taken from a USB discovered in a wardrobe at Mr Betka's home. The USB contained 221 audio files and one .html internet file. Almost all of the files were either produced by Islamic State or promoted violent jihad. For example, one file is titled ISIS Jihadists in Syria, and contains a number of people singing in Arabic. The Crown emphasised that Mr Betka lived with his parents at the premises at the time and had previously lived there with his wife, from whom he separated in mid-2017. The USB was recovered from a wardrobe in a bedroom that they had shared.
Mr Betka was cross-examined about the USB as follows: "Q. It was your USB wasn't it Mr Betka? A. No. Q. It was material that you had downloaded because of your support of Islamic State? A. Definitely not."
Mr Betka had said in his affidavit that the USB belonged to his wife. Having regard to the evidence with which I have been provided, that seems unlikely. Moreover, far from being merely unlikely, I am satisfied beyond reasonable doubt that the USB belonged to Mr Betka. It was discovered at his home. His wife by then lived elsewhere. It was marginally consistent with material found on Mr Betka's mobile phone. However, the significance of that finding remains to be seen. As far as I am aware, the precise dates or timeframe during or over which the material was electronically assembled is not revealed. For example, I am unaware whether it was gathered before or after Mr Betka went to Syria. I also note that the forensic examination of Mr Betka's mobile phone that revealed him to be the so-called administrator of two WhatsApp groups which shared videos, audio and images said to be consistent with an interest in and support for jihadist views and ideology, is limited to the period between 19 April 2017 and 31 July 2017. In other words, at the time of his arrest there had been no similar activity on Mr Betka's phone for approximately five months.

Commonwealth offences - sentencing principles

Part 1B of the Crimes Act applies to sentencing for Commonwealth offences. Section 16A(1) provides that the Court must impose a sentence of a severity that is appropriate in all of the circumstances of the offence. In doing so, the Court must take account of the matters listed in s 16A(2) to the extent that they are relevant and known.

Section 16A(2)(a): the nature and circumstances of the offence

The nature and circumstances of the offence are outlined in the agreed statement of facts.
Having regard to the date upon which s 119.1(2) was inserted in the Code, I am informed that there has yet been no direct judicial consideration of this offence. The provision is, however, similar to s 6(1)(a) of the Crimes (Foreign Incursions and Recruitment) Act 1978 with which other courts have dealt. For example, in R v Mohammed [2016] VSC 581 at [4], Lasry J indicated that: "[4]…the clear purpose of the provisions…was to ensure that Australia discharged its international obligation to make criminal activities of … [those] who proposed to engage in hostile activities in a foreign state and/or assist foreign fighters to do so. That purpose in itself demonstrates the seriousness of [the] conduct." (footnote omitted)
In R v Biber [2018] NSWCCA 271 at [22], the Court said this: "[22] In assessing the objective seriousness of an offence under s 6(1)(a) where the relevant intent is to engage 'in armed hostilities in a foreign State' it may be accepted, as the Crown submits, that it is necessary first to consider the nature and circumstances of the hostile activity intended to be undertaken, the means, methods and scope of any intended participation in those activities, the particular target or objective, if any, of the intended activities, and the apparent capabilities of the offender to achieve the intended objective, as well as the intended duration of the offender's participation in the hostile activity. It is then necessary to assess the seriousness of that conduct by reference to where it sits in a range of proscribed conduct for which 20 years imprisonment is the maximum penalty."
The Explanatory Memorandum to the introduction of Part 5.5 of the Code on 1 December 2014 contained the following: "Australia faces a serious and ongoing terrorist threat. The escalating terrorist situation in Iraq and Syria poses an increasing threat to the security of all Australians both here and overseas. Existing legislation does not adequately address the domestic security threats posed by the return of Australians who have participated in foreign conflicts or undertaken training with extremist groups overseas ('foreign fighters'). … The Bill implements the Government's responses to the evolving national security landscape and in particular, the threat posed by Australians engaging in, and returning from, conflicts in foreign States. The latter category of persons, collectively referred to as 'foreign fighters', may have fought alongside listed terrorist organisations in overseas conflicts and return to Australia with enhanced terrorism capabilities and ideological commitment. This heightens the likelihood of the commission of terrorist acts on Australian soil." (Emphasis added)
An offence against Part 5.5 is, as earlier noted, a "terrorism offence" as defined in s 3(1) of the Crimes Act. Such an offence is a "minimum non- parole offence" within the meaning of s 19AG(1) of that Act: a minimum non-parole period of at least ¾ of the overall sentence must be imposed.
In the present case I accept that Mr Betka went to Syria in response to calls from Islamic State. He made his own travel arrangements and was a willing if not enthusiastic volunteer. His trip was carefully planned and was neither impulsive nor opportunistic. Mr Betka contacted someone in Syria about how to make his travel arrangements. In 2015, he often visited websites regarding fighting against Assad and how foreign fighters could help Syria. He also watched online videos regarding the Syrian conflict, including material relating to Islamic State.
Mr Betka submitted that in terms of objective seriousness, his conduct amounted to the commission of a serious offence but not to a serious breach of a serious offence. He submitted in terms that his conduct amounted to the least objectively serious offence of its kind. I consider that Mr Betka's criminal conduct can, having regard to all of the evidence, best be characterised in the following way.
Mr Betka went to Syria with a view to supporting Islamic State. I am satisfied that he was beguiled by slick advertising and propaganda designed to attract young Islamic supporters such as him. Although he gave evidence that he went with the sole aim of providing humanitarian assistance, I do not accept that he had no anticipation of being involved in armed conflict. However, I am equally satisfied that with the few desultory exceptions described, Mr Betka's experience in Syria was unsatisfying and unsatisfactory. There is no evidence that he received training in the use of arms or explosives or in the practice of military exercises or movements. Being provided with an AK-47 assault rifle and given rudimentary instructions about how to fire it in my opinion barely qualifies as military training in the sense referred to in Division 117 of the Code. Even though by definition and by his plea Mr Betka engaged in hostile activity, I am satisfied on the balance of probabilities that he did not engage in a battle or a skirmish directly or indirectly with armed combatants in opposing forces. Nothing in his recorded conversations leads me to that view. The conversations in fact suggest to me that he did not even come close to doing so. The details of his affidavit, which I accept, reinforce my perception that Mr Betka's experience in Syria was (for him) frustratingly uneventful. The listening device conversations to my mind convey an attempt to talk up his experience and his role in Syria, rather than a reliable version of what he did there in fact. In forming that view I have had particular regard to the fact that Mr Betka provided a very detailed account of his time in Syria in his affidavit and that he was tested upon that material in court. I believe his account. I remain of that view notwithstanding the skilful cross-examination by Ms McDonald SC for the Crown and the concessions that she was able to secure from him.
In this last respect I also note Mr Betka's submission that his "hostile activity" was limited to entering a designated conflict zone, associating with a prescribed terrorist organisation, becoming part of a unit with a commander, manning a checkpoint, handling rounds of ammunition and, in a limited sense, firing a weapon. He was not involved in sourcing weapons or equipment or providing funding. He conceded that he supported the overthrow of the Assad regime. It is a matter of considerable significance to his credit, and to the issues of contrition and remorse, that Mr Betka brings these matters forward in his affidavit in detail that went well beyond what the Crown knew about what he did in Syria or could ever have expected to discover. The fact that Mr Betka left Syria after such a short stay also supports the proposition that he did not wish to be involved in the escalation of his contribution to Islamic State.
I consider in these circumstances that Mr Betka's breach of s 119.1(2) of the Code is at the very lowest end of objective seriousness for offences of this kind.
In assessing Mr Betka's moral culpability it is relevant that he travelled to Syria and joined the Islamic State with a less than fully informed understanding and knowledge of its objectives and the methods by which it sought to achieve them. Any belief that he may have held in the rightness of the cause does not of itself affect his moral culpability. However, the fact his primary motivation was the amelioration or prevention of the depredations being visited upon the Syrian population by the Assad regime mitigates that culpability: see, for example, R v Lelikan [2019] NSWCCA 316 at [127]-[129], [131] per Bathurst CJ; at [154] per Bell P; at [157] per Davies J.

Section 16A(2)(b): other offences to be taken into account

The Crown submitted in this case that Mr Betka's offending against s 119.2(1) was "independently serious" and that it required an increase in the sentence for the primary offence. The Crown submitted that the scheduled offence represented "additional criminality that should be reflected in the sentence imposed for the principal offence". This is said to be for three reasons.
First, Mr Betka entered Al-Raqqa. In my view, that submission does no more than state the fact that Mr Betka committed the offence on the schedule.
Secondly, Mr Betka entered Al-Raqqa "in the context of engaging in hostile activity". Having regard to the fact that the Al-Raqqa province is part of Syria, I do not consider that Mr Betka's sentence for the principal offence should be significantly increased for doing something that is contemplated by the principal offence. The scheduled offence is necessarily geographically contemplated by the principal offence. The Crown's submission, if accepted, would lead to double counting.
Thirdly, Mr Betka, by his own account, smashed tombstones because they were "forbidden structures". In like fashion, the scheduled offence is made out by entering a "declared area". Mr Betka's conduct while in that area is no part of the scheduled offence in the first place and is otherwise something to be taken into account as part of the principal offence in the second place.

Sections 16A(2)(f) and (g): the degree to which contrition is shown; plea of guilty etc

These proceedings were originally listed for a committal hearing on 30 July 2018. That was vacated. Mr Betka waived his committal on 26 September 2018 and was committed for trial. After six separate listings in the arraignment list between 7 December 2018 and 18 July 2019, Mr Betka pleaded guilty to count 1 on the indictment on 18 July 2019. The s 16BA schedule matter was added later and the sentence hearing was allocated on 2 August 2019.
Mr Betka is entitled to the benefit of his plea of guilty as evidence of his remorse, his acceptance of responsibility for the offence and as an indication of his willingness to facilitate the course of justice.
The strength of the Crown case may be taken into account when assessing the subjective value of a plea of guilty in order to determine whether there has been a genuine willingness to facilitate the course of justice or simply a recognition of the inevitable. In the present case, the general elements of the Crown case were strong. However, the specific details of the activities that Mr Betka engaged in while there all come from him. That suggests to me a desire to facilitate the just disposition of his criminal conduct.
Specifically with respect to his contrition and remorse, Mr Betka gave this evidence: "Q. Is there anything you'd like to say to his Honour about this offence? A. I'm sorry I was misled your Honour. I was naïve. I thought I was doing the right thing. Looking back now, it was pretty stupid to go into a declared zone. A war zone, thinking I was doing the honourable thing. I actually, this probably sounds stupid but I actually feel sorry for the young people in Super Max that got sucked into the same thing. They're 19 years old, 20 years old. The things that ISIS was promoting was like a Hollywood - it's like a Hollywood editing of videos. It was easy to get sucked in. There was so much, so much stuff that they promoted which was easy to get influenced by and your Honour, it's - it's a crime I would never ever do again."
Mr Betka is entitled to a discount of 15 percent for the utilitarian value of his plea.

Section 16A(2)(j): specific deterrence

When considering the issue of specific deterrence and Mr Betka's prospects of rehabilitation, he bears the onus of satisfying me that he is unlikely to reoffend. Having regard to his initial motivation for the offence, that onus is partly informed by his ability to establish that he is no longer associated with extremist Islamic ideology. That needs to be put into context.
It is apparent from all of the evidence that the object of Mr Betka's religious energies when he left for Syria was not the specific implementation of some well thought out terrorist agenda as much as the simplistic concern to oppose the Assad regime's infliction of genocidal assaults on large sections of its population. The destruction of "tombstones" with Bashar al-Assad's image engraved upon them is the clearest manifestation of this concern. Mr Betka was therefore singularly associated with this specific inspiration rather than with the wider and dangerous extreme ideology of so-called Islamic fundamentalism said to be embraced by the Islamic State. It is a matter of some considerable and tragic irony that Mr Betka was recruited by an organisation that he subsequently came to appreciate was decidedly un-Islamic.
Mr Betka described his current view: "Q. So these videos influenced you did they? A. Yes. Q. Just tell me about what was in the videos? A. Well the way they were explaining things, it's a happy lifestyle, you don't need to work, you don't need to - basically you can do whatever you want, it's a happy life, it's a happy lifestyle, it's just like living in Lebanon with your wife or family, you can work, start a business. Q. And you've seen those videos from ISIS had you and what influence did they play on your thinking? A. I thought it was happy days, why not go there, helping innocent, men, women and children. Q. And then what did you see when you go there? A. The complete opposite. Q. In what respect? A. Especially with them talking about what the Assad regime was doing to innocent civilians, they were doing the opposite with mistreating the civilians. Q. ISIS was mistreating their civilians? A. Yes. Q. At the time you went into Syria did you support ISIS? A. Yes. Q. Do you support ISIS now? A. No. Q. Do you support any other group that's associated with terrorism? A. No. Q. Do you look back on those times when you were in Syria and supporting ISIS? A. Absolutely. Q. And what do you think about your state of mind at that time? A. Misled, naïve, stupid, jumped the gun, if - if I can put it in [those] terms. Didn't think twice. Q. Do you still think going to Syria is something that you'd like to do? A. Definitely not."
The Crown submitted that Mr Betka "by his conduct positively sought out and embraced the opportunity to be involved in armed hostilities". That submission needs in my view to yield to the force of Mr Betka's evidence last quoted.
I am satisfied that Mr Betka has never embraced, and does not now embrace, radical or violent Islamic extremism. It is not without significance that he committed no crimes associated with such views in the two years between his return from Syria in October 2015 and his arrest in Sydney at the end of 2017. As I have indicated, there is no evidence of the date upon which the material on the USB was downloaded. The material on Mr Betka's phone was obtained during a discrete timeframe. Neither the USB material nor the mobile phone content is said standing alone to constitute the commission of some other offence. I acknowledge in this context that statements of contrition and remorse, or more particularly for present purposes expressions of renunciation of extreme views, that might have been given to third parties such as Dr Katie Seidler, Mr Betka's psychologist, need to be treated with caution and are of little weight.
Critically, in purely pragmatic terms, Mr Betka is not charged with, and has not committed, domestic acts of violence or terrorism. His offence was consummated by travelling to a foreign country and engaging in hostile activity there. Whatever may be the expressed rationale for criminalising such behaviour in Australia, it is principally directed to the prospect of preventing the commission of violence here. Mr Betka's plea of guilty to the principal offence does not carry with it any concession that he is prone to acts of violence in Australia, or indeed anywhere at all. Strictly understood, specific deterrence must be directed to the prospect that Mr Betka might commit the same or a similar offence again, not to the risk that in committing the principal offence he may have become prone to commit acts of domestic violence. I am satisfied that Mr Betka will never travel to any foreign country to engage in hostile activity there. There is therefore no corresponding need specifically to deter the possibility of any such conduct.

Sections 16A(2)(ja) and (k): general deterrence and adequate punishment

I accept that I am required to ensure that Mr Betka is adequately punished for his criminal conduct. That punishment must be appropriately severe having regard to all of the circumstances. Those circumstances include the fact that Mr Betka was naïve and vulnerable to deceptive persuasion by reason of his ill-informed and misguided appreciation of what he was getting himself into. His criminality must be assessed having regard to that consideration.
By the same token, the relative and recent ubiquity of this type of offence calls for general deterrence. That proposition is not diluted by the fact that the principal offence is at the lower end of the range of objective seriousness. General deterrence is in any event a fundamental consideration when sentencing for Commonwealth offences and is specifically identified as such in the Act.
Mr Betka suffers from post-traumatic stress disorder. This is referred to later in these reasons. That condition should be taken into account when considering the sentence to be imposed in accordance with the familiar discussion in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. However, the only basis upon which Mr Betka's mental condition could operate in the present circumstances to ameliorate his sentence is that a custodial sentence may weigh more heavily upon him and that the sentence may be more onerous as a result.

Section 16A(2)(m): character, antecedents and background

Mr Betka was born in St George Hospital in Sydney in 1992 and went to Punchbowl Boys' High School, finishing Year 12 in 2009.
His family are Muslim but are not very religious. They did not go to the Mosque regularly and religion was not a big part of their life. Mr Betka does not consider himself to be a religious person now.
Mr Betka's father is Algerian and his mother is Lebanese. His mother comes to visit him in gaol, but his father does not. Mr Betka's father, who is a taxi driver, is very angry and disappointed with Mr Betka because of his conduct in recent years and they are not currently speaking. Mr Betka's father was devastated about him being in Syria and involved in this offence.
When he first left school Mr Betka studied at TAFE to become a mechanic. He wanted to specialise in high-performance cars. He completed 3 years of the course, but had one year left to go before he finished. During his time at TAFE Mr Betka was still living at home and worked at Sam's Performance Race Engines at Padstow. He was at TAFE and working at Sam's from 2010 to 2012. He also did part-time modelling at that time.
During 2011/2012 Mr Betka became interested in the conflict in Syria. It was a topic of conversation amongst a lot of his friends who were also Muslim and amongst the Muslim community. He began attending Mosques and learning his religion. He was about 23 years old at this time. He attended Lakemba and Belmore Mosques. There were frequently discussions about Syria and the need to help the people who were being killed and injured by the Assad regime.
Mr Betka recalled that the Australian Government was promising a lot of aid to Syrian refugees at this time and the Mosque was often fundraising for charities to assist refugees. He donated money to the charities and wanted to help. By around 2013/2014 the Syrian conflict, including Assad's use of chemical weapons on his own people, was all that people spoke about at the Mosque. Mr Betka saw it as a war on innocent Muslims, namely women and children.
Around this time Mr Betka began watching more and more online videos about the Syrian conflict. Mr Betka said that there was a particular YouTube channel called "Vice" that posted such videos, but it was not an Islamic State channel. The videos that he watched promoted the need for people from the West to go to Syria in order to help, not so much with the fighting, but with the development of the country generally. Mr Betka had been watching videos on YouTube and Facebook which promoted the good lifestyle that ISIS wanted the world to believe they were encouraging in Syria.
By 2014 Mr Betka had stopped studying and working as a mechanic, and was working for NRMA roadside assistance. He was still living at home.
Mr Betka met his wife in June or July 2014 through friends at the Mosque. She was 21 and not very religious. Mr Betka's wife had been working as a sales woman for a shoe company. They were married in December 2014 in an Islamic ceremony. He was 23 years old.
Mr Betka and his wife had been donating to the Syrian refugee cause during 2014 and 2015 but in 2015 could no longer do this due to the introduction of laws preventing their use of Western Union to transfer sums to Syria. Mr Betka said that this made him feel very powerless.
Mr Betka felt he should go to Syria to help the anti-Assad forces. His wife agreed. They were were even thinking of starting a family in Syria and becoming part of the Caliphate.
Mr Betka had no prior convictions at the time of his offending. Since his arrest in December 2017, Mr Betka has been convicted of the following offences: 1. Assault occasioning actual bodily harm and common assault in a domestic violence context: 12 April 2018. He was placed on a bond to be of good behaviour for 18 months. 2. Dealing with money in excess of $1M intended to become an instrument of crime: 2 December 2019. He was sentenced to a term of imprisonment of 6 years and 9 months with a non-parole period of 4 years commencing on 19 December 2017 and expiring on 18 December 2021. The offending occurred between 20 December 2016 and 23 October 2017.
As a result of his experiences in Syria and his gaoling in Algeria, Mr Betka developed and now suffers from post-traumatic stress disorder. He suffers from occasional nightmares about his Algerian travails and when he experiences physical pain, this triggers recollections of Algeria. Since his incarceration he has been experiencing recurrent, intrusive and distressing nightmares involving images of dead people, which are recollections of some of his experiences overseas. Dr Seidler did not however consider that there was a nexus between these medical conditions and Mr Betka's offending behaviour, as he was not suffering from a mental health condition at the time.

Section 16A(2)(n): prospects of rehabilitation

Dr Seidler expressed the following opinion about Mr Betka's prospects of rehabilitation: "I would consider Mr Betka to pose a low risk of violent extremism. This risk would have been rated in the moderate range previously, according to VERA-2R, in the period prior to his decision to travel to Syria. This risk would have been most strongly associated with exposure to extremist material, ideology and training, in addition to the strong sense of anger and outrage that Mr Betka experienced in relation to the trauma that the Syrian people were exposed to. This has tempered since that time and with the reorganisation of his thinking associated with the sense of disillusionment and trauma as a function of his experiences overseas, has tempered Mr Betka's risk and reduced it to the low range."
There is also no suggestion or evidence to found the proposition that Mr Betka had ever supported, encouraged or considered, let alone engaged in, any terrorist activity in Australia. He has never been the subject of surveillance by authorities inspired by any suspicion or suggestion of that kind. Moreover, Mr Betka's mobile telephone was analysed by the authorities and its contents became part of the brief of evidence. There is nothing on Mr Betka's phone such as a book, recording, article or other material that could reasonably suggest or demonstrate any ongoing support for Islamic State or that Mr Betka poses any threat to the Australian community. I have already referred to the fact that Mr Betka's life in Australia from the time of his return to Australia until his arrest was relevantly law-abiding. His money laundering conviction is an obvious exception to that. There were no illegal or prohibited pro-jihadist posts or images on his phone and nothing that could reasonably suggest that Mr Betka held a radicalised pro-Islamic State view of the world. That would appear also to have been the view of the Australian Federal Police who did not charge Mr Betka with the present offences, involving activities in Syria but not in Australia, until more than two years after he returned home.
Mr Betka submitted, consistently with the principles enunciated in R v Filippetti (1978) 13 A Crim R 335, that I could not be satisfied beyond reasonable doubt that the USB found at Mr Betka's home was his. I have already rejected that submission. The USB was not tendered in these proceedings and I have been provided with no more than a submission that the content of the files on the USB promote violent jihad and correspondingly should be taken to limit Mr Betka's prospects of rehabilitation. The Crown submits that the material is inimical to Mr Betka's contention that he has no interest in radical or violent Islam or associated terrorist activities.
It is obviously not possible for me in these circumstances to determine the significance, if any, of this material to Mr Betka's prospects of rehabilitation. Neither the Crown nor Mr Betka has tendered this item. I am not prepared to make other than very general assumptions about what it contains or what significance it might have. The Crown maintained that Mr Betka has not discharged the onus of demonstrating that he no longer adheres, or alternatively does not now adhere, to violent or radical Islamic views. To the extent that that submission is said to be supported by the files on the USB, I am unable to decide it.
As circumspect as I must be about accepting without examination an offender's assertion that he has surrendered any adherence to radical religious views in the context of sentencing proceedings in which the true position is undoubtedly significant, I have had the advantage of hearing Mr Betka give evidence at some considerable length. One of the matters that impressed me was the evidence he gave concerning the inmates at the HRMU at Goulburn where he is presently housed. Without descending into the detail of that evidence, Mr Betka made it clear that he wanted no part of any such violent or extreme radical religious views and no part of his fellow inmates who profess them. I accept that evidence as truthful. It is not without significance that Mr Betka did not tell me that he had renounced his faith, an approach that some others might have adopted in an attempt more convincingly to support their case. On the contrary, I take Mr Betka's adherence to what he calls the real Islam as support for his truthfulness. The following passage from Mr Betka's evidence should be noted in this context: "Q. What prompted you to leave after you'd been there for that period of time? A. The main reason was, I got told to fight and there was a number of other reasons of how, mistreatment of civilians, including people that are, like foreigners as well. Q. Who was doing the mistreating? A. Members from ISIS. Q. And you saw that? A. Yes. Q. What did you think about that? A. It's unislamic, and second of all it's inhumane."
The prediction of an offender's prospects of rehabilitation and the related issues of the risk of reoffending and future dangerousness is an imprecise exercise at best producing in most cases an opinion of quite variable reliability. The prognostications of medical professionals and judges are only as good as the evidence that is available at the time. Doing the best I can, I consider that Mr Betka's prospects of rehabilitation are very good and that his risk of reoffending is low.
I note, however, that the conditions under which he is presently incarcerated are particularly harsh. A significant amount of evidence about these conditions was tendered at the sentencing hearing. By reason of Mr Betka's current classification as a person charged with a so-called terrorist offence, he is housed and treated in custody, even while on remand, in the same way as offenders who have been convicted of the worst category of terrorist offences. It seems to me that the possibly indiscriminate and generic classification of prisoners in this way, and the extremely onerous conditions and restrictions to which they are subjected, has the very real potential to create more disaffection among inmates with a low level of reoffending than if they were housed with the general prison population. I am concerned that the optimistic prospects that I have attributed to Mr Betka may be diluted or rendered vulnerable to change if these conditions and restrictions persist.

Section 16A(2)(p): probable effect of the sentence on family or dependants

Mr Betka has a three year old child. The effect referred to in this provision is said only to be taken into account where it is an exceptional case, consistently with the common law position. The Crown maintained that there is currently no evidence of any hardship to Mr Betka's family or his dependants that could be regarded as justifying any leniency and that any hardship that does exist is merely an expected consequence of incarceration for criminal activity.
The precise words of the paragraph are "the probable effect that any sentence or order under consideration would have on any of the person's family or dependants". They are unqualified. There is no statutory reference to any limitation requiring or even suggesting that the provision only applies in an exceptional case. Notwithstanding that fact, authorities on the point suggest otherwise: R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522, R v Hinton (2002) 134 A Crim R 286; [2002] NSWCCA 405, R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222, R v Sakovits [2014] NSWCCA 109, R v Berlinsky [2005] SASC 316, R v Huston; Ex parte DPP (Cth) (2011) 219 A Crim R 209; [2011] QCA 350, Markovic v R (2010) 200 A Crim R 510; [2010] VSCA 105, Nguyen v R (2001) 118 A Crim R 519; [2001] WASCA 72, McAree v Barr [2006] TASSC 37, R v Elshani (2015) 255 A Crim R 488; [2015] NSWCCA 254. Beech-Jones J has queried the correctness of this approach in Zerafa at [125] and [144] and R v Elshani [2015] NSWCCA 254. If it were presently relevant I would indicate a preference for the view expressed by Beech-Jones J.
However, I consider that the circumstances in this case are exceptional. I note immediately that exceptional does not mean unique. There may well be other similar instances in existence. Mr Betka's daughter has not been allowed to visit her father since he has been in custody. Mr Betka submits, and the Crown has quite uncontroversially not suggested otherwise, that this is not merely having a negative effect upon his daughter's relationship with him but that she in fact has no relationship with him at all. I am in these circumstances unable to accept, at the end of the second decade of the third millennium in a civilised country apparently ordered by humanitarian values, that completely excluding all or any contact between a daughter and her father is not at least presumptively, if not actually, an exceptional situation for her to endure. It is something that I propose to take into account.

Other matters

I have been provided with a document prepared by Darius Halim and Darren Bennett. I do not propose to include the details of that document in these reasons. It is sufficient to observe that I have read that document and have taken it into account.

Disposition

Mr Betka has been in custody since the date of his arrest on 19 December 2017. However, as earlier noted, he is currently serving a sentence for an unrelated matter that commenced on that day. The Crown submitted, and I accept, that the sentence I am required to impose upon Mr Betka should not be backdated to that date in order to reflect the need for a degree of accumulation. It is not controversial that no sentence other than a sentence of imprisonment is required in this case. In arriving at what I consider to be an appropriate sentence I have taken account of the offence listed on the s 16BA schedule. I also wish to make it plain that in arriving at what I consider to be a proper sentence, if it is not otherwise already apparent from these remarks, that I have carefully considered the issues of totality, accumulation and concurrence in the exercise of my sentencing discretion, having regard to the fact that Mr Betka is currently serving a sentence of imprisonment for an unrelated offence.
Belal Betka, for the offence of engaging in hostile activity in a foreign country contrary to s 119.1(2) of the Code, and taking account of the offence contrary to s 119.2(1) of the Code listed on a s 16BA schedule, I sentence you to imprisonment for 3 years and 8 months commencing on 19 June 2018 and expiring on 18 February 2022 with a non-parole period of 2 years and 9 months expiring on 18 March 2021.
I am required by s 16F of the Crimes Act to explain to you that you will be required to serve the non-parole period that I have set, and that any entitlement that you may have to be released on parole will not arise until 19 March 2021 at the earliest. In so saying, I am aware that you are otherwise subject to a sentence of imprisonment for an unrelated offence with a non-parole period that does not expire until 18 December 2021.
I am also required to warn you pursuant to s 105.23 of the Criminal Code that an application may be made under Division 105A of that Code for a continuing detention order requiring you to be detained in custody at the end of your sentence for this offence.

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: 20 February 2020

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (18 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (17)

Cited By (3)