R v Biber

THE COURT:

1. On 9 February 2018, the respondent (Mehmet Biber) entered a plea of guilty to the charge that: Between about 1 July 2013 and 9 February 2014, [he] did enter a foreign State, namely the Syrian Arab Republic, with intent to engage in a hostile activity in that foreign State, namely, engaging in armed hostilities contrary to Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6(1)(a).
2. The maximum penalty for that offence was 20 years imprisonment. On 27 April 2018, he was sentenced by Adamson J to a period of imprisonment of 4 years and 9 months commencing on 3 November 2016 with a non-parole period of 2 years and 6 months: R v Biber [2018] NSWSC 535.
3. The Commonwealth Director of Public Prosecutions (the Crown) appeals against that sentence under Criminal Appeal Act 1912 (NSW), s 5D(1) on the following grounds, except for ground 3 which is no longer pressed: 1. The learned sentencing judge erred in her characterisation of the objective seriousness of the respondent's conduct. 2. The learned sentencing judge erred in finding that the respondent had reasonable prospects of rehabilitation. 3. The learned sentencing judge erred in finding that the effect of the respondent's incarceration on his family was exceptional. 4. The sentence imposed is manifestly inadequate.
4. To succeed the Crown must establish appellable error in the sentencing judge's discretionary decision, and negate any reason why this Court should exercise its discretion under s 5D(1) to decline to intervene should error be established: CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9.
5. At the time of the offence, the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6 relevantly provided: 6 Incursions into foreign States with intention of engaging in hostile activities (1) A person shall not: (a) enter a foreign State with intent to engage in a hostile activity in that foreign State; or (b) engage in a hostile activity in a foreign State. Penalty: Imprisonment for 20 years. (2) A person shall not be taken to have committed an offence against this section unless: (a) at the time of the doing of the act that is alleged to constitute the offence, the person: (i) was an Australian citizen; or (ii) not being an Australian citizen, was ordinarily resident in Australia; or (b) the person was present in Australia at any time before the doing of that act and, at any time when the person was so present, his or her presence was for a purpose connected with that act, or for purposes that included such a purpose. (3) For the purposes of subsection (1), engaging in a hostile activity in a foreign State consists of doing an act with the intention of achieving any one or more of the following objectives (whether or not such an objective is achieved): (a) the overthrow by force or violence of the government of the foreign State or of a part of the foreign State; (aa) engaging in armed hostilities in the foreign State; (b) causing by force or violence the public in the foreign State to be in fear of suffering death or personal injury; (c) causing the death of, or bodily injury to, a person who: (i) is the head of state of the foreign State; or (ii) holds, or performs any of the duties of, a public office of the foreign State or of a part of the foreign State; or (d) unlawfully destroying or damaging any real or personal property belonging to the government of the foreign State or of a part of the foreign State.
6. Section 6(3)(aa) was included in the Act by the Crimes Legislation Amendment Act 1987 (Cth), s 22. In his second reading speech, the Minister for Justice described the purpose of the amendments (which also included substituting "foreign State" for "foreign country" and redefining "government" to mean "the authority exercising effective governmental control") (Commonwealth of Australia, Parliamentary debates (Senate) (Hansard) 5 November 1987, p. 1756): The underlying purpose of the Crimes (Foreign Incursions and Recruitment) Act 1978 is to prevent persons from Australia becoming involved in hostile activity in overseas countries. The purpose of the amendments is to remedy a number of deficiencies in the Act. One such deficiency is that mercenary acts as such are not proscribed unless they involve acts done for specific purposes, those purposes generally relating to acts directed against the government of a foreign country … In addition, two new offences have been created - prohibiting persons from Australia from engaging in armed hostilities outside Australia and prohibiting the use of a vessel or aircraft in preparations for an incursion into an overseas country …
7. The reference to "mercenary acts as such" is to acts which, before the inclusion of s 6(3)(aa), would only have answered the description "engaging in a hostile activity against the government of a foreign country" in the unamended language of s 6(1) if they had been undertaken with the intention of achieving one of the objectives in s 6(3).
8. The sentencing judge's findings are set out at Judgment [5]-[87]. A statement of agreed facts, signed by the respondent, was tendered at the sentencing hearing. The respondent also gave evidence and was cross-examined, as was Dr Katie Seidler, the psychologist who interviewed the respondent and undertook a psychological assessment of him. Her Honour also had the benefit of two reports of Dr Rodger Shanahan concerning the history of the Syrian civil war. With very few exceptions, the sentencing judge's findings are not the subject of challenge and the central facts may be summarised shortly.

Summary of facts

1. The respondent is an Australian citizen of Turkish heritage, and a follower of Islam. He and two friends (Caner Temel, Muhammad Musleh) flew to Turkey on 1 July 2013 where they met with Tyler Casey, who had left Australia two days earlier. The four men then travelled to Syria. The group's travel was arranged and facilitated by Hamdi Alqudsi, whose principal connection in Syria was another Australian, Mohamed Ali Baryalei. Mr Alqudsi was subsequently arrested on 3 December 2013: Judgment [38]; and later charged and sentenced: R v Alqudsi [2016] NSWSC 1227.
2. By 2013, the main opposition forces facing President Bashar Assad's government and army were the Free Syrian Army (FSA), and two insurgent groups, Ahrar al-Sham (AAS) and Jabhat Al-Nusra (JAN). The sentencing judge described AAS as then being "a coalition of multiple islamist units that coalesced into a single brigade to fight against the Assad government during the Syrian civil war": Judgment [12]. Mr Baryalei was a member of AAS when the respondent's group arrived in Syria, but also had associations with JAN. On 30 June 2013, Mr Baryalei told Mr Alqudsi that AAS had split into two groups: one being JAN, and the other what came to be known as Islamic State, or ISIS. The Australian government designated each to be a terrorist organisation, JAN on 29 June 2013 and Islamic State on 12 July 2014. AAS has never been listed as a terrorist organisation: Judgment [13].
3. Between 2 and 4 July 2013, the four men travelled to Bab Al-Hawa, a border crossing from southern Turkey into north-west Syria, at a point 50 or so kilometres west of Aleppo. On 4 July, they entered Syria. Mr Musleh returned to Sydney a week later. After spending about 3 months in Syria, in October 2013 the respondent returned to southern Turkey, staying at Antakya with members of his mother's family. In late November 2013 his wife, who was pregnant, and his mother travelled from Australia to join him in Turkey. The three of them remained there until early February when the respondent's wife gave birth to their daughter. Around that time the respondent was arrested by authorities in Turkey for not having a current visa and was returned to Australia, arriving on 9 February 2014.
4. Whilst in Syria, and as part of AAS, the three Australians spent a month or so living in a "guest house" in Talbajr, a small village in north-west Syria. They then spent time in Raqqa, before returning to Talbajr. Whilst in Talbajr, they also visited the nearby city, Saraqib, where there was a hospital. The respondent did not engage in any armed hostilities with anyone during his time in Syria. In July and August, the three Australians were photographed and one photograph (taken outside the guest house at Talbajr) shows Mr Baryalei and eight others, including the respondent, dressed in black and holding assault weapons. The respondent also gave evidence of two occasions when they undertook "training" while staying in Talbajr, which involved visiting a local rubbish tip where they "shot at cans": Judgment [62].
5. During his time in Syria, the respondent stayed in contact with Mr Alqudsi via instant messaging applications. In a separate communication with Mr Alqudsi on 8 August 2013, Mr Baryalei indicated that he was proposing to join Islamic State. He later did so, as did Mr Temel and Mr Casey. However, as the sentencing judge observed at Judgment [66], it is not clear when they did so. The respondent's evidence was that this was after he had left Syria. Mr Temel and Mr Casey were later killed, possibly in a conflict between members of FSA and Islamic State.
6. After their return to Australia on 9 February 2014, the respondent, his wife and child lived with his parents. Over two and a half years later he was arrested and charged with the offence for which he was sentenced.

Ground 1

1. With respect to the objective seriousness of the respondent's offending, the sentencing judge concluded at Judgment [105]: I regard Mr Biber's conduct in entering Syria for the purposes of engaging in armed hostilities, but not actually engaging in armed hostilities, and returning to Turkey of his own volition as well below the mid-range of seriousness for this offence.
2. The Crown submits this conclusion was erroneous and significantly underestimated the seriousness of the offending. It is established that this Court can only interfere with a sentencing judge's characterisation of the objective seriousness of offending if error is shown in accordance with the principles stated in House v The King (1936) 55 CLR 499 at 504-505. In such a case the question for the appellate court is "whether or not the particular characterisation which [the sentencing judge] gave to the circumstances of the offence was open", meaning a reasonably available one in the light of the evidence: Mulato v Regina [2006] NSWCCA 282 at [37] (Spigelman CJ, Simpson J agreeing). That is not to say that "appellate courts should not intervene once they have reached a concluded view that the sentencing judge was in error in his or her assessment of the objective seriousness of the offence. However, the approach in Mulato [also] emphasises the need for caution in reaching such a view and the importance of paying due regard to the opinion of the sentencing judge": Regina v KB; Regina v KL; Regina v RJB [2011] NSWCCA 190 at [53] (Bathurst CJ, Buddin and Harrison JJ agreeing).
3. The Crown contends that the sentencing judge erred in two respects when assessing objective seriousness. First, it is said her Honour wrongly compared the seriousness of the respondent's offence under s 6(1)(a), which involved entry with intent to engage in armed hostilities (sub-section 6(3)(aa)) with the offence of actually engaging in such hostilities contrary to s 6(1)(b); and that in doing so treated the latter as necessarily more serious. Secondly, it is said her Honour erred in having regard to the respondent's conduct after he entered Syria as relevant to the assessment of the objective seriousness of his offending.
4. The first argument directs attention to the terms of the Act, and her Honour's analysis and application of it. Accepting that the difficulties of construction presented by the "duplication of concepts between the defined term in s 6(3) and the provision which incorporates it (s 6(1)) are to be resolved in the way suggested by Leeming JA in Alqudsi v Commonwealth of Australia (2015) 91 NSWLR 92 esp at [69] and [77]; [2015] NSWCA 351, the position is as follows. Section 6(1) creates two offences - entry with intent to engage in a hostile activity in the foreign State, and engaging in such an activity in that state. The physical and fault elements of the first offence are the act of entry with, at the time of entry, an intent to engage in hostile activity. In relation to the second, they are the doing of an act which constitutes engaging in hostile activity, and intending to do that act. In practical terms the position is as described by Leeming JA in Alqudsi at [77]: If an Australian citizen intentionally engages in armed hostilities in the foreign state, then he or she will be doing acts with the intention of engaging in armed hostilities in the foreign state, and so will contravene s 6(1)(b). If an Australian citizen enters a foreign state with the intention of engaging in armed hostilities in that state, then when he or she enters, he or she will have the intention in the future of doing acts with the intention of achieving the objective of engaging in armed hostilities, which suffices to contravene s 6(1)(a).
5. Similar analysis applies to conduct directed to the other "objectives" in s 6(3). It follows that any assessment of the objective seriousness of particular conduct, either as intended or undertaken, involves an evaluative judgment that must take account of those different objectives, each of which is capable of a significant variation in seriousness and degree, and the wide range of conduct, also capable of significant variations in seriousness and degree, by which they might be pursued.
6. The sentencing judge, as the Crown accepts, recognised that s 6(1) covers a wide range of prohibited conduct. Specifically, her Honour, correctly in our view, observed at Judgment [104]: The circumstances which may give rise to a conviction for an offence under s 6 of the Act are so various that it is unhelpful, if not impossible, to generalise about the conduct covered by the section, not least because it covers entry into a foreign State with intention, as well as actually doing the physical acts in a foreign State. Like manslaughter, the offence has a protean character: R v Forbes [2005] NSWCCA 377 at [133]-[134] (Spigelman CJ); R v Blacklidge (Unreported, Court of Criminal Appeal (Gleeson CJ), 12 December 1995) pp 2-3. Its objective gravity may vary from an individual crossing a national border with the intention of destroying some item of government property of little or no strategic value, to membership of a mercenary group conducting a lengthy violent campaign to overthrow the government of a foreign State and terrorise those within its borders. Matters of fact and degree can arise both within s 6(1)(a) and (b) and within the objectives referred to in s 6(3).
7. The sentencing judge also correctly noted that the offence under s 6(1)(a) was complete when the respondent crossed from Turkey into Syria on the evening of 4 July 2013; and that in assessing the relative seriousness of that offence it was necessary to have regard to the circumstances of that entry and his intention at the time of entry: Judgment [100], [102].
8. 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.
9. The sentencing judge's findings concerning the "nature and circumstances of the entry and the [respondent's] intention" included that he and Mr Temel "wanted to go to Syria to 'help' and … from the outset, to fight against the Government of Syria": Judgment [57]; that he knew from speaking with Mr Temel "that they would be fighting Assad's army in Syria": Judgment [59]; that he expected that those activities would involve the use of semi-automatic weapons: Judgment [114]; that before his arrival in Syria the respondent had "no understanding of any of the groups fighting Assad and had not heard of AAS": Judgment [61]; and that he "had no idea who AAS was until he arrived and [that he] joined them merely because Mr Baryalei was already associated with AAS, which happened to control the area where the group to which [he] belonged crossed into Syria": Judgment [82].
10. On the basis that the respondent was not charged with an offence under s 6(1)(b), the sentencing judge also observed at Judgment [102] that "what he did after he entered does not affect the nature and circumstances of the offence in any significant way". The Crown relies on the sentencing judge's immediately following reasons and her Honour's conclusion at Judgment [105] (extracted in [15] above) as exposing errors of approach in treating intended conduct as necessarily less serious than equivalent conduct actually engaged in, and in having regard to what the respondent did and did not do after he entered Syria in assessing objective seriousness. Those reasons were: [103] Although, as noted, the offence of entering a foreign State with the intention of engaging in armed hostilities carries the same maximum penalty as engaging in armed hostilities, this is not to say that the seriousness of Mr Biber's conduct ought be assessed as if he actually engaged in armed hostilities. Offences against s 6 cover a very wide range of prohibited conduct in a foreign State, of which engaging in armed hostilities is but one. Other prohibited conduct set out in s 6(3), whether or not actually achieved, includes: overthrowing the Government of the foreign State by force or violence; causing the public of the foreign State to be in fear of death or personal injury by force or violence; causing the death or bodily injury of the head of state of the foreign State; and unlawfully destroying real or personal property of the government of the foreign State.
11. Her Honour's observation that the respondent's conduct was not to be assessed as if he actually engaged in armed hostilities reveals no error in approach. It implicitly acknowledged the breadth of conduct that may constitute "engaging in armed hostilities". It also recognised that whereas the objective seriousness of an offence under s 6(1)(a) depends on an assessment of the nature and extent of the conduct intended at the time of entry, that of an offence under s 6(1)(b) involves an assessment of actual conduct which constituted engaging in armed hostilities. In some cases the intention satisfying s 6(1)(a) may be specific, focussed, detailed, organised, thoughtful, well-resourced and determined, making it more likely that what is proposed will come to pass. In others that intention may be more general, not the result of any detailed forward planning or organisation, and dependent upon opportunities, as well as the decisions of others; as was in significant respects the position of the respondent. The sentencing judge's observation, on which the Crown relies, recognises in the light of such considerations, the need to assess the objective seriousness of an offence under s 6(1)(a) by reference to what was intended at the time of entry, rather than to what might or might not have come to pass in the working out of that intention.
12. The first part of the Crown's second argument - that the sentencing judge had regard to subsequent conduct - substantially depends on a reading of Judgment [105] as saying that the conduct taken into account included the respondent's "not actually engaging in armed hostilities, and returning to Turkey of his own volition". That suggested understanding of the sentencing judge's conclusion does not accommodate the reasoning preceding it which makes clear that because the respondent was not charged with an offence under s 6(1)(b) what he did after he entered Syria did not affect the nature and circumstances of his offending, which depended on his intention on entry: Judgment [102]. There being no other indication in her Honour's reasons that she took such conduct into account, the language of Judgment [105] is sensibly read as emphasising that the relevant conduct for which he was being sentenced was what the respondent had done, and not what he had not done.
13. The second aspect of this argument was that later conduct could not be relevant to an inquiry as to the respondent's intent at the time of his entry into Syria. That is not so. The nature and extent of an intent, and the resolve with which it is held, may be revealed by subsequent events. Circumstantial evidence relied on for that purpose is described as "retrospectant" because it may support an inference as to the existence or nature of an earlier state of affairs or mind. As Ormiston JA (Phillips and Callaway JJA agreeing) observed in The Queen v Ashdown [2003] VSCA 216 at [12], a case involving the offence of burglary, the elements of which are entry to a building as a trespasser with intent to steal: Doubtless the offence of burglary is complete when the accused has entered the premises but it does not follow, as the night the day, that everything that thereafter occurs is irrelevant to the sentencing process. In the first place, there may be relevant retrospectant evidence that may assist in determining the intent of the offender and the seriousness with which the burglary may be viewed. If an offender takes nothing and seemingly tries to take nothing, as in this case, then it is easier to say that, although he may have had an intent to steal, it was not part of any systematic or deliberate plan to take property from the premises.
14. For further examples, see R v Baden-Clay (2016) 258 CLR 308 at [76], [77]; [2016] HCA 35 (French CJ, Kiefel, Bell, Keane and Gordon JJ); and the discussion in JD Heydon, Cross on Evidence, (11th ed 2017, LexisNexis) at [1170].
15. Finally, contrary to the Crown's submission, the sentencing judge did not have regard to the respondent's belief as to the cause of overthrowing Assad's government being a "noble" one, and in doing so treat his proposed involvement as involving less criminality than that of a mercenary, in each case for the purpose of assessing objective seriousness. Having earlier observed at Judgment [93] that the object of the amended Act was "not only to criminalise entry into a foreign State for the purposes of engaging in armed hostilities, but also to make irrelevant any judgment about the merits of any armed conflict in a foreign State", her Honour concluded that the criminality of a foreign incursion offence was not lessened either by the nature of the cause or the offender's belief in it.
16. In the result, none of the respects in which it is submitted that the sentencing judge erred in assessing objective seriousness is made out; and her Honour's conclusion at Judgment [105] was open in the light of her findings concerning the respondent's intention at the time he entered Syria.

Ground 2

1. Dealing with the Crown's submission that the respondent's prospects of rehabilitation were "slim", and describing them as "difficult to assess", the sentencing judge concluded that they were "reasonable" (Judgment [128]): … particularly having regard to the length of his period at liberty following his return; his father's good example and steadfast support; his family's love; his desire to be part of his daughter's life; and his time in custody, which I accept to be very onerous.
2. Within a range of prospects of the respondent re-establishing himself as a responsible and law abiding citizen (as to which see the discussion of the concept of rehabilitation in R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60 at [114]-[122]; [2012] NSWCCA 225), "reasonable" describes prospects that are less than good and better than poor, and not to be dismissed as irrelevant. The Crown maintains that such an assessment was not open on the sentencing judge's findings. In doing so, the Crown does not rely on any specific error in the sentencing judge's evaluation. Accordingly, it must establish that the factors taken into account by the sentencing judge nevertheless compelled the different conclusion that those prospects were "slim".
3. Focussing on the matters summarised in Judgment [128], the Crown submits that her Honour's assessment was "primarily premised upon an absence of further offending" after the respondent's return to Australia, coupled with the assumed continuing "protective" influences of his family. It is said that each of these factors was 'present' when the respondent committed the offence. Prior to that he had not offended and had the love and support of his family, yet neither factor prevented him from travelling to Syria or remaining there for three months. Furthermore, the absence of any offending during the 2 years and 9 months after his return was said not to provide a sufficient basis for a conclusion as to there being reasonable prospects of rehabilitation because of his continuing interest in, and sympathy for, the cause of Islamic State; as well as his accessing via the internet material, particularly through chat groups, showing violent terrorist acts. Reference was also made to the sentencing judge's findings that although the respondent regretted the consequences of his action, especially for his family, he did not feel any remorse or contrition: Judgment [118]; and that he had not matured significantly since his travel to Syria, her Honour having described his rationalisation of that conduct as "largely immature, selfish and self-justifying": Judgment [85].
4. The countervailing considerations to those emphasised by the Crown which the sentencing judge also took into account included that in the end the support of the respondent's family had been sufficient to remove him from the conflict before he engaged in armed hostility: Judgment [125]; that although he had not matured significantly he had lost his illusions about the reality of fighting in Syria, particularly in the light of the deaths of his friends and the effect his actions had on his family (Judgment [126], [127]); that although he had continued to engage in online and chat group activities, none of those activities was illegal, and many were explained by stupidity or immaturity; that he had never joined Islamic State; and that he had lived with his family for almost three years without any evidence that he had done anything directed to his returning to Syria or which had involved any risk to the safety of the Australian community: Judgment [124]. Ultimately, the weight to be given to these factors and those relied on by the Crown was for the sentencing judge. The conclusion that the respondent's rehabilitation prospects were reasonable was plainly open. This ground is not made out.

Ground 4

1. In circumstances where the Crown has not succeeded on grounds 1 and 2, it must demonstrate that the sentence is "so manifestly inadequate" that it is "plainly unjust". Appellate intervention on this basis is not warranted unless, "having regard to all the relevant sentencing factors including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle": R v Pham (2015) 256 CLR 550 at [28]; [2015] HCA 39 (French CJ, Keane and Nettle JJ).
2. The adequacy of the length of the sentence falls to be assessed by reference to the guidepost of the maximum penalty, 20 years. The sentence imposed was discounted by 20% to reflect the utilitarian value of his plea of guilty, entered just after committal but before any trial date was set. The Crown does not take issue with the appropriateness of that discount. Accordingly before the application of the discount, the starting point of the sentence was 6 years, a significant sentence, even for an offence with a maximum penalty of 20 years. Similarly, the notional undiscounted non-parole period of about 3 years and 2 months is a substantial term of imprisonment, as is the period of 2 years and 6 months imposed by the sentencing judge after discount.
3. In response to these considerations, the Crown maintains that the offence committed was a "serious" contravention of s 6(1)(a). The sentence imposed was the first for an offence under s 6(1), and s 7(1) having a lower maximum penalty of 10 years imprisonment, the Crown does not rely on the difference between that sentence and sentences imposed in cases said to be comparable. Instead, it submits that offences of the nature committed by the respondent "threaten and endanger Australia's international reputation and standing and the peace and harmony of the Australian community, particularly when motivated by religious and ideological beliefs which place adherence and obligation on one's faith ahead of compliance with the law".
4. While conduct proscribed by s 6 could involve activity in the nature of terrorism in the foreign state, there is no reference to terrorism in the elements of the offences created by that section: see R v Succarieh; R v Succarieh; Ex parte Commonwealth Director of Public Prosecutions [2017] QCA 85 at [139] (McMurdo JA, Bond J agreeing). In cases involving terrorist acts, or preparation to commit terrorist acts, the principles of general deterrence and protection of the community are given significant weight: Director of Public Prosecutions (Cth) v MHK (2017) 52 VR 272 at [51]; [2017] VSCA 157; citing Lodhi v The Queen (2007) 179 A Crim R 470; [2007] NSWCCA 360 (Spigelman CJ). The Crown accepts that the offence to which the respondent pleaded guilty was not a terrorist offence.
5. The sentencing judge was required to impose a sentence that was of a severity appropriate in all of the circumstances, and in doing so to take account of such of the matters described in Crimes Act 1914 (Cth), s 16A(2) as were relevant and known to the Court. It is not suggested that her Honour did not do so. The extent to which each of those factors was to be weighed in the balance was a matter for her Honour's judgment and the discretionary nature of that judgment means that there could be no single sentence that was just in all the circumstances. We are not persuaded that the sentence imposed was clearly unjust as manifestly inadequate. Ground 4 is not made out.

Conclusion

1. It follows that the appeal is dismissed.

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