R (Cth) v Dakkak

The breaches of the ICO

1. There were in fact three contraventions of the ICO. The first was on 2 January 2021, the second between 11 and 12 January 2021, and the third on 12 January 2021. The agreed facts set that offending out in some detail.
2. The first offending relates to the offender seeking access, using his permitted computer, to information concerning Sheikh Ahmad Al-Hazimi. He downloaded four MP3 files, which were audio files, which appeared to contain Islamic sermons. At about 7.20pm the offender commenced watching a one-and-a-half-hour video entitled "Clear-cut evidence regarding the invalidity of the Tunisian fatwa", a document made by Sheikh Ahmad Umar Al Hazimi. The agreed facts contain this: "40. At 55 minutes and 44 seconds of the video, Al-HAZIMI states: "If someone makes a prophet, or a person such as IBN ABBAS or MAHJOUB or ABI TALIB, an intercessor and he depends on them or asks them instead of Allah, to bring forward their interest or to keep away harm. That is, creations ask him and they ask Allah just like intercessors who ask kings for people's needs, because they are close to him. And people ask them out of respect. Who is more deserving to ask? Just because they are closer to the king. Whoever made them intercessors in this way is perceived as a disbeliever and a polytheist where his money and blood is permissible. 41. At 57 minutes and 16 seconds of the video, Al-HAZIMI states: They mentioned in the ESNAD and others what is meant is that the book and SUNNAH claimed that whoever makes the angels or a prophet, or a person such IBN ABBAS or MAHJOUBA or ABI TALIB, an intercessor to intercede on their behalf with Allah, because of their closeness to him, in a way that is similar to the one used with kings, is then a disbeliever and a polytheist and his money and blood is permissible. 42. At 59 minutes and five seconds of the video, AL-HAZIMI stated: It is known in the Religion by necessity that this is a disbeliever polytheist, his blood and his finances are permissible."
3. The references to a person's "money and blood" being permissible is a clear suggestion that their life and property can be forfeit, or taken by a true believer, that is, a reference to murder or assassination in a religious cause. What I have just quoted is material relating to the second offending. The first offending and the third offending are similar.
4. The third offending took place on 12 January 2021. It relates to the offender conducting multiple searches on Google relating to polytheism. One article that the offender accessed said this: "These three types are the major polytheism. The one who commits it or believes in it is apostatizing from the religion of Islam, so it will not be prayed over his body when he dies, he will not be buried in the cemeteries of Muslims, his money will not be passed on to his heirs but his money will be saved in the Muslims fund, his slaughtered animals for sacrifice will not be eaten, it will be ruled that he should be killed and the person who's in charge of Muslims' affairs will be the one in charge of this ruling, however he should be asked to repent before killing him, if he repents, his repentance is accepted, and then he shall not be killed and he shall be treated like all other Muslims. In regards to minor polytheism: It is everything prohibited in the Sharia (Islamic law) which can be an excuse to lead to major polytheism and a mean to fall into it, and in texts it was described as polytheism."
5. The agreed facts contain a number of footnotes in which it is pointed out that there were quotes taken from the glorious Quran and from the Hadith, and the defence did not accept that such quotations were a breach of the ICO. However, the Crown disputed the relevance of that fact. The glorious Quran and the Hadith were not being quoted by the offender himself, but were being quoted by others for their own purposes in the dialogue which the offender viewed or listened to which amounted to the breach of the ICO. That others may use such quotations for the benefit of their arguments does not mean that the quotations from the glorious Quran and the Hadith have any moral failing, but rather those who use them to support their arguments are the persons who may have committed a moral failing.
6. It is difficult to know what caused the offender to access this material. There is no suggestion that the offender has committed any act which imperils any person, or that he did anything which might assist a terrorist organisation, such as to give money to an organisation which might assist that organisation supporting a terrorist organisation. The offender's failing was in accessing material which he was prevented from accessing by the ICO. Whether that was because he was studying his religion, or whether he was doing it purposefully to instil radical beliefs in himself, is not at all clear. However, it is clear that he did not comply with the ICO.
7. As I said, there are three breaches of the ICO but the Crown has rolled them up into one count. As a number of recent judgments point out, one is concerned with the total criminality, not the number of counts to which a person pleads guilty to. The rolling up of the three offences into the one count can be taken as a concession by the Crown that the maximum penalty for that one offence is more than sufficient to cover the total criminality of the offender for the three offences.

The offender's arrest

1. The offender was arrested on 16 January 2021 at 6.00am and was taken to the Ryde Police Station. He has been in custody since that time. One can say therefore that he was at liberty from his release from custody on 1 January 2021 until arrested in the early hours of 16 January 2021. He was at liberty for 15 days although the law would see it as 16 days as the law knows not part of a day. The offender pleaded guilty on 17 December 2021 at Parramatta Local Court and was committed for sentence in this Court at that time. As at the sentencing hearing last Friday, the offender had been in custody for one year, two months and 24 days. He has now been in custody for one year, two months and 27 days.

Criminal history

1. The only offending committed by this offender are the offences for which he stood for sentence before Hamill J and the offences for which he stands before me for sentence. He is otherwise a young man of good character.

Antecedents

1. At the time of the offending he was 25 years old. He is now 26 years old. The offender's background in seen in the report of Mr Patrick Sheehan, a psychologist who interviewed him by audio visual link on 1 March 2022. The relevant parts of Mr Sheehan's history are these: "5. Mr Dakkak was born in Sydney to Lebanese parents and raised in the western Sydney suburb of Toongabbie. He said that to his knowledge, his birth was normal and he met developmental milestones normally. He is the eldest of five children. The language spoken at home was a mix of Arabic and English. He told me that his parents had fled to Australia to escape conflict in Lebanon but that the history of war trauma did not figure prominently in family life. His father was a civil engineer and a university lecturer. He told me that he came from an "academic family" where there was a strong focus on education and achievement. The family attended the Mosque weekly but he denied that the family were strictly religious or political, with the attendance to the [Mosque] being "cultural". There were no familial issues with substance abuse, domestic violence or crime. He denied ever having been the victim of neglect, physical/sexual abuse or any other type of trauma. He reported a tense family home environment, with much arguing. Meals were not eaten together. He thought this was not normal, but he has always been close with his mother. One of his brothers suffers from severe mental illness, and was a psychiatric inpatient for four years, according to Mr Dakkak. Another brother is intellectually disabled and he is unable to communicate. Mr Dakkak reported having been heavily involved in the care needs of his two brothers during his late teens and early twenties. 6. Mr Dakkak never formally moved from the family home, having first entered custody aged 23 years. He recalled that his family had not approved of his associates leading up to his first conviction. However, his family have remained closely supportive over the past three years. On release to community on 1 January 2021 Mr Dakkak resided in a family home for one week, but then relocated to his aunts' home, due to fear that the tools in his fathers' garage could be seen as a breach of his conditions (his concern was that tools may be considered as weapons). In terms of the current offence, his family have criticized him for obtaining a mobile phone, regarding it as an unnecessary risk, but he said that his family did not believe he has done anything wrong. He said: "They think it was easy to breach it. Something minute". He reported frustration in maintaining contact with family from the High Risk Management Correctional Centre (HRMCC), being unable to have any face to face visits, and finding that approval processes for video visits or phone calls take several months. He hopes to live independently on release. Education and Vocational History 7. Mr Dakkak reported an unremarkable experience of early education. He attended Toongabbie West Public School, and recalled no problems with his learning, social adjustment or conduct. He attended Pendle high school where he had favourable adjustment, and found that his peers were curious and supportive about aspects of his faith, such as Ramadan. He completed his Year 12 certificate in 2013. He would not tell me his percentile ranking, being embarrassed by the low result, saying: "I didn't put much effort in Year 12, I was distracted". Despite his results he was able to enter a degree in civil engineering at Western Sydney University. He studied for four years, but was unable to complete his degree, saying: "I was overwhelmed, I was too busy looking after my brothers". He said that his father was disappointed in him. He denied that his failure to meet family expectations had affected him adversely or shaped his interest in pursuing alternative means of establishing self-worth through affiliation with Islamic State. However, I formed the impression that his self-image was fragile and at times he seemed to overstate his abilities or achievements to compensate. 8. Mr Dakkak reported a negligible history of employment, having only held part-time pamphlet delivery roles and as a pick-packer in a warehouse. He said: "I started my own business as a sole trader in support work", but on further examination he had only established an ABN and an intention to work in this field, but had been arrested prior to being able to enter employment. He has been unable to work in custody, with HRMCC offering no significant employment opportunities. He expressed enthusiasm to pursue employment as a carer or support worker in the future."
2. The next section of Mr Sheehan's report details the offender's social and intimate relationships. One paragraph is this: "10. He acknowledged having become increasingly focussed on Islam during the three years prior to his first arrest, joining various Facebook groups and reading religious interpretations. He denied that his interest was focused on violence or conflict, saying: "What I was interested in was propagating Islam. 99% of it is random Islamic knowledge, only 1% about politics and Isis". He reported minimal social engagement since his arrest in 2019, with strict gaol conditions making it "almost impossible to have a single friend other than immediate family". He referred to lengthy and frustrating vetting of systems that discouraged pursuing friendships. He has communicated through correspondence but said that his letters take months to reach their destination and that return mail also takes months to get to him, due to security processes. He said that he associates well with other offenders in custody. He denied limiting his inmate associations to other "terrorist" offenders or even other Islamic inmates saying: "It's my religion to live peacefully with non-believers"."
3. Mr Dakkak is engaged to be married. One of the documents before me is a letter from his fiancée. She is a primary school teacher holding a teaching position in a school, which I am told is in the Bankstown area. She has degrees in arts and primary school teaching. She has known the offender for five years and they have been engaged for three years. In her reference she says this: "During this period of time of knowing Radwan, I have only seen good character and uprightness. I have seen that he develops a good rapport with anyone he meets, regardless of age or beliefs. He is extremely well mannered individual and has never displayed any kind of violent or aggressive behaviour. Radwan is a very selfless, hardworking, and compassion being who always helps those in need and puts others before himself. This was especially demonstrated by the amount of car he provided his two younger brothers who suffer from different disabilities and mental illnesses. His entire family relied on him for support, and he always provided his support without any complaints. He spe nt most of the days providing care to his brothers and taking them to important appointments and tending to their daily needs. His absence has deeply affected his family as he provided immense emotional and physical support to them as well as having a close relationship with them."
4. The offender's fiancée recalls that after his release on 1 January 2021 the offender took active steps to find work quickly. Within two weeks of his release he had almost completed a course, which was required for the job he was applying for, and the offender was extremely excited about starting work and being able to help his family with his income.
5. At that time, the offender and his fiancée were planning on marrying as soon as possible after his release and they were actively looking for accommodation so that they could live together after their marriage and have a family.
6. Since the offender's incarceration for the second time, only members of his immediate family have been approved to visit him, and not his fiancée. The fiancée tells me that once the offender is released on this occasion, they will remain in Sydney close to their respective families, especially because the offender's mother needs help looking after the offender's younger brothers and she needs to help her mother as she also requires support because of personal illness. They also hope to start a family. In other words, things in the future are positive.

Religious education

1. Attempts have been made for the offender to see an imam in prison, but that has not come to pass. There is before me Exhibit 3, a letter from Sheikh Wesam Charkawi, an Islamic scholar serving the Muslim community here in Sydney who is happy to see the offender and to see him once a week upon his release in order that they can discuss various beliefs and outlooks in Islam. The Sheikh's curriculum vitae is before me and attests to his knowledge of his religion, his university studies in Australia, the work he does for members of the Muslim community in this State where he is a Chaplain with the Department of Education and a counsellor to the Australian Federal Police in community contact, and where he has assisted New South Wales Police in countering violent extremism in the past.
2. Annexure 12 of the communications contained in the defence tender bundle is a letter from the offender bearing date 1 April 2022 in which he says this: "I'm more than willing to engage with an imam upon my release from custody, whilst managing that around work, family commitments & getting married to my wonderful fiancée who has provided me with immense moral support and encouragement."
3. He is aware of the imam whom his lawyer has contacted, namely Sheikh Charkawi, and he is happy to attend upon him.

Family commitments

1. A little more should said about the offender's family commitments. In evidence are a number of letters from Dr Caroline Williams, a consultant paediatrician who has been treating the offender's youngest brother. Dr Williams has been treating him since his birth. In a letter dated 2 September 2019 she says this: "He has Mowat-Wilson syndrome which is a rare genetic disorder with severe to profound global developmental delay and food allergies. He has epilepsy and there are ongoing behavioural problems. [His] behaviour has deteriorated. He is aggressive, slapping, kicking & hitting his mum. He frequently absconds. He climbs heights and has to be supervised every minute of the day as he puts himself unwittingly into dangerous situations. [He] is completely reliant on his mother for self cares. It can take an hour to complete his bedtime routines. He is unable to toilet himself and nappy changes are becoming more difficult for him where he will frequently hit and grab at [his Mother].[His Mother] is a [redacted] year-old lady who has chronic back pain as a result of picking [him] up. [He] weighs over 22kg. She has problems with low mood and she is exhausted. She is socially isolated. She cannot meet friends and she has other children who live outside Sydney whom she is unable to visit as [a result of her youngest child who] cannot tolerate the car journey. She has applied for work outside of the home but has not been able to start this due to [her child]'s requirements." The letter goes on to point out that the youngest son attends a special school where he has speech pathology, occupational therapy, and physiotherapy, fortnightly and monthly. It is clear when one reads the various letters from Dr Williams that the amount of care required by the offender's youngest brother is quite substantial, and that it is debilitating his mother. One can understand the offender, a fit and able young man, being called in to care for his youngest brother who, frankly, cannot even speak.
2. The offender's second youngest brother suffers from a mental illness which has required hospitalisation. According to the last letter that I have from Dr Williams, that son has obsessive compulsive disorder, and he also needs a full-time carer, which can only be the mother when the offender is in custody.
3. One can see that the demands of the offender's family were such that when he was not doing his university studies, he was looking after his younger brothers, and when his university studies ended he could not really enter the workforce because of the demands of his family.

The future

1. The fact that the offender has a fiancée and they intend to marry, live together, and commence a family, is a very positive thing. The fact that the offender is prepared to consult an imam who does not hold extremist views of Islam but holds a positive view of his faith which he is prepared to pass on to the offender is another positive thing.
2. However, the Crown reflects some cynicism as to the offender's mental attitude. For example, at the penultimate paragraph of Mr Sheahan's report is this: "Mr Dakkak reports favourable circumstances during his development, in a prosocial and politically moderate Islamic family. There is no history of mental illness, antisocial personality or other serious impediment to community adjustment. He is unable to provide a detailed understanding of his index offence and current offence, and that his discourse showing only a glancing acknowledgment of the mechanisms, intent or distorted beliefs underpinning the behaviour. This may be due to defensiveness, evasiveness or simply a lack of insight. Either way, he has disadvantaged himself by gravitating towards religious readings that contain destructive interpretations of Islam, even knowing that his internet use would be scrutinized."
3. The real question as far as the future is concerned is whether the offender is being defensive or evasive, or whether he lacks insight leading to the commission of the offences for which he stood for sentence before Hamill J and for the current offences. It is extremely difficult for me to know. However, everything else about this young man is positive. For example, the written submissions on his behalf by his barrister commence in this fashion: "1. Radwan Dakkak is 26 years old. He is polite and well mannered. He has partially completed a university degree. He is engaged to marry a primary school teacher. 2. Mr Dakkak spent his 24th, 25th and 26th birthdays in custody. Apart from a 16-day period, he has spent the last 32-33 months in custody (almost exclusively on remand). The conditions of that custody have been onerous. 3. His incarceration has prevented him from assisting his mother look after his disabled brother. 4. He is to be sentenced today for breach of an Interim Control Order (ICO). The breach did not involve: carrying out or preparing for violence; providing material support for others; sharing ideas or information with other people; or any attempt to evade the authorities. It is submitted that the offence falls towards the bottom of the range for offences against this section."
4. As far as rehabilitation is concerned, I cannot say whether it is positive, nor can I say that it is negative. All one can say is that if the offender marries his fiancée, they decide to live together in Sydney and start a family, he obtains employment and in that way supports his brothers and his mother, and that his fiancée or his then wife supports her mother during her illness, that he will be so busy that he will not have idle time in which to search web sites looking for the type of material which has gotten him into trouble thus far. Furthermore, his consulting with Sheikh Charkawi may lead him along a more fruitful path in his study of his own faith.

The seriousness of the offence

1. Counsel for the offender submitted that this case should have been dealt with in the Local Court where the maximum penalty for the offence would have been one year's imprisonment rather than the five years' imprisonment that the offender faces today.
2. The Crown says that the offences were so soon after the offender was released from custody, the breaches of the ICO being within two weeks of his release from custody, that the offending is egregious.
3. The offending itself is not egregious, but the timing of it was very poor. Equally, the offender was using his approved laptop and approved mobile phone so that commission of the offences would have been easily detectable by the Commonwealth authorities. This case is very different of course to the case of R v MO (No 1) [2016] NSWDC 144 in which Berman DCJ sentenced an offender for breaching of an ICO. His Honour pointed this out: "[2] In this case the offender MO was subject to an interim control order. He has breached it, he admits, in three ways. He was served with the control order on 18 December 2014 it having been made the day before. One of the terms of the control order expressly prohibited the offender from using a mobile telephone service that had not been approved by the Joint Counter-Terrorism Team. Another term of the control order expressly prohibited the offender from using a public telephone service that had not been approved by the Joint Counter-Terrorism Team. [3] It is clear that the offender knew and understood the requirements of those orders because four days after being served with the order he obtained permission from the Joint Counter-Terrorism Team to use a particular telephone service, that permission was granted. So when the offender breached the control order by using a public telephone on two occasions, one very shortly after the other, and by using a mobile telephone on another occasion he was fully aware that he should not be doing so. He explains his behaviour now as by saying that he was simply naïve. Clearly he did not take the control order seriously, nor it would seem the fact that he was at liberty on bail when he committed the offences for which I must now sentence him. [4] The offender called the same person on each occasion and as the Crown concedes the contents of the discussions between them were trivial. We know that because fortunately procedures were in place which allowed the recording of the telephone conversations. Mr Lange who appears for the offender impressed upon me a finding that these offences were at the lower end of the scale of objective seriousness. I do not agree. What I see is the offender deliberately thumbing his nose at the control order and the authorities who imposed it."
4. I could not say in this case that the offender was thumbing his nose at the Commonwealth because he was using services which the Commonwealth could easily monitor, and which he must have known would be monitored. His offence appears to be reading on when he ought to have stopped reading.
5. In R v MO (No 1) the offender was sentenced to two and a half years imprisonment with a non-parole period of one year and six months. Another sentence for this offence was imposed by Scotting DCJ in Regina (Cth) v Ahmad Saiyer Naizmand [2017] NSWDC 4. There was an appeal from his Honour's decision: Naizmand v R [2018] NSWCCA 25. Although his Honour did commit error by failing to allow a discount for the utilitarian value of the plea, the Court of Criminal Appeal on resentence imposed the same penalty. The contraventions carried out by Mr Naizmand were much more serious and grave than those carried out by the current offender. Mr Naizmand was sentenced to imprisonment for four years and a non-parole period of three years was fixed. The Crown has alerted my attention to a decision of Hanley DCJ in R v Alo-Bridget Namoa (Parramatta District Court, 29 November 2021) in which a head sentence of one year and four months was imposed with a non-parole period of one year. However, his Honour's reasons are not available to me nor to the Commonwealth.
6. Because the offending of Mr Dakkak was so close to his release from custody and his being served with the ICO, I cannot regard the offending as so trivial as to warrant the type of penalty suggested to me by learned Counsel for the offender. Equally, it appears to me that time served can account for the majority of the sentence to be passed. There are a number of other things that I should say before going to that issue.

Extra-curial punishment

1. It has been submitted that the conditions of the offender in custody have been onerous. One matter raised is the amount of lockdowns to which the offender has been exposed. In a recent decision, which is restricted but is known to the Commonwealth, I pointed out in detail that lockdowns occur in prisons for a large number of reasons. Unless the reason is particular to the offender in question, if the Court took into account lockdowns available to all of the inmates of a prison, lockdowns would become a routine matter for mitigation of sentence. The lockdowns here appear to be related to usual operational requirements of a gaol and the COVID-19 pandemic.
2. The COVID-19 pandemic has also been responsible for other impositions on the offender that appear to have made his custody onerous, such as the curtailment of in-person visits from members of the offender's family and the need for only electronic communication and the lack of active resources to make that freely available. Again, that has affected all the prison community just as all members of our society have been affected by COVID-19 restrictions in their daily life and ought not be taken into account.
3. There is affidavit evidence before me from officers of the gaol which indicate to me that the offender's conditions of custody have not been unduly onerous such as to be a mitigating factor. Having said that, it is clear that the offender is in the High Risk Management Correctional Centre. He is in a place where high security inmates are imprisoned, and these inmates appear to all be charged with or convicted of a terrorism offence. The irony of course is that although the ICO, which the offender breached, certainly requires him not to consort with any person who has been found guilty, or is accused, of, or suspected of being involved in, terrorism related-offences, when in custody he is incarcerated with many such people. It is better that he be excluded from their company by being discharged from custody.

Special statutory provisions

1. The final thing I should say is that there are special provisions contrary to the usual provisions of the Crimes Act 1914 (Cth) which relate to persons in the position of the current offender. There is a minimum non-parole period which applies the three-quarter rule well known to New South Wales lawyers, without there being any provision for a finding of special circumstances. Accordingly, the non-parole period should be three quarters of the head sentence and a non-parole period is to be applied even if the head sentence is less than three years. Under the general provisions of the Crimes Act 1914 (Cth), a non-parole period is imposed only if the sentence exceeds three years, otherwise there should be a release on recognizance order.
2. It has been submitted that the offender may not be released at the expiration of the non-parole period because that appears to be "government policy". The person who makes the decision about release on parole is not the Court or an organisation such as the Parole Board, but rather the Attorney-General of the Commonwealth. That may well be the case, but the Court must do its duty and impose a non-parole period, and it is left to others to determine whether the offender would be admitted to parole. The Court should not lessen the head sentence merely to evade the possibility of the offender's not being admitted to parole. To do so would be contrary to the Court's duty.

Utilitarian value of guilty plea

1. It is common ground that the offender is entitled to a discount for the utilitarian value of his plea of guilty. It is accepted that the plea was at the earliest available opportunity, and the offender is therefore entitled to a 25% discount of the proper sentence to be passed upon him.

Sentence

1. I have reached the view that the appropriate starting position and for this offence is a head sentence of two years and three months. I reduce that by 25% to account for the utilitarian value of the offender's plea of guilty. I round that figure down to a whole number of months in the offender's favour. That gives me a head sentence of 20 months' imprisonment or one year and eight months. I fix a non-parole period of fifteen months. That non parole period expires on Friday of this week. If the head sentence starts on 16 January 2021 it will conclude on 15 September 2022.
2. Radwan Dakkak you are convicted. I sentence you to imprisonment for one year and eight months commencing on 16 January 2021 and concluding on 15 September 2022. I set a non-parole period of one year and three months expiring on 15 April 2022. 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: 27 May 2022