R v Fattal & Ors [2011] VSC 681

2 At the request of your counsel pleas were first listed to be heard on 23 March 2011, and were adjourned, again at the request of the defence, until 5 May 2011, at which stage the first of the plea hearings commenced and continued through to 6 May 2011. A request was made for additional material to be presented and a further hearing in relation to the plea was held on 31 August 2011, at which further submissions were made in respect of this matter.

3 The offence, of which you have all been convicted, carries a maximum penalty of life imprisonment, which is an indicator of the seriousness with which Parliament views offending of this type. Other offences that come within the category of life imprisonment include matters such as murder, treason and some large commercial quantities of trafficking and importing of drugs. What is unusual about the offending is that it relates to behaviour which, in the ordinary course of events, would rarely amount to criminal behaviour. As was stated by Spigelman CJ in the case of Lodhi v The Queen:[1]

Nevertheless, as Price J emphasises, the provisions creating the offence are directed to preparatory acts and the seriousness with which Parliament regards such acts is manifest in the maximum penalty. By the extended range of conduct which is subject to criminal sanction, going well beyond conduct hitherto generally regarded as criminal, and by the maximum penalties provided, the Parliament has indicated that, in contemporary circumstances, the threat of terrorist activity, requires condign punishment.

I agree with the remarks of the Chief Justice. Sections 101.4, 101.5 and 101.6 of the Criminal Code make offensive acts of a preliminary nature falling short, some well short, of attempt. Because of their especially serious nature and the commensurate need to protect the public from the consequences that might follow, the legislature has prescribed very long maximum sentences.

1. The proximity of the offending act to the substantive offence is of relevance in the assessment of the culpability of an attempt to commit a crime. With the relevant state of mind the offender must do some act towards the commission of the offence which goes beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of the intended crime. The unlikelihood of success of an attempt, although the ultimate crime is physically possible, is relevant to the consideration of the objective seriousness of the offence. The inter-relationship between the seriousness of the intended consequences and the real prospects of achieving them is a factor to be weighed in the light of all the circumstances.
2. The present offences, however, are not crimes of attempt. Sections 101.4, 101.5 and 101.6 of the Criminal Code (Cth) extend criminal liability to acts of preparation. The proximity between the criminal act and the commission of the substantive offence is necessarily more remote. These are anticipatory offences which enable intervention by law enforcement agencies to prevent a terrorist act at a much earlier time than would be the case if they were required to wait for the commission of the planned offence or for an unsuccessful attempt to commit it. The proximity between the preparatory act and the completion of the offence, although relevant, does not determine the objective seriousness of such an offence. It does not follow that as long as the preparatory acts relied upon to constitute the offences are in their infancy criminal culpability must necessarily be low. The main focus of the assessment of objective seriousness must be the offender's conduct and the offender's intention at the time the crime was committed.

4 The matters, of which the jury had to be satisfied, are set out in the particulars and statement of offence, which reads: That each of you between 1 February 2009 and 4 August 2009, at Melbourne, and elsewhere conspired with each other and unknown other persons to do acts in preparation for or planning a terrorist act or acts. The terrorist act was defined as, an action or threat of action involving an armed attack on the Australian Army Barracks as Holsworthy in New South Wales, Australia. Further that the action or threat of action was to be done or threatened to be done with the intention of advancing a political, religious or ideological cause. In this case, a combination of religious and ideological, that is the advancement of Islam through violence, that it be done with the intention of either coercing or influencing, by intimidation, the Government of the Commonwealth or intimidating the public or a section of the public. Finally, the action if carried out, would be one that would cause serious physical harm to a person or serious damage to property or cause a person's death, endanger a person's life or create a serious risk to the health and safety of the public or a section of the public and that the action, or threat of action, was not to be advocacy, protest, dissent or industrial action, which was not an issue in this trial.

5 The Crown case was that you three, together with others, were preparing and planning for an attack on the Holsworthy Army Base in New South Wales. It was to be carried out by possibly six persons, who may or may not have included each of you. The attack was to be with guns, and the basic plan was to enter the army base and using the guns that had been obtained, to then shoot as many persons on the base as could be shot, before each of those persons attacking were themselves killed. That is the case that went to the jury. That is the decision that the jury gave.

6 There was some dispute as to what the act may have been, and at the request of counsel, that matter was clarified prior to the charge to the jury and they were instructed as follows:

Let me look at each of the characteristics. There are four. The first is, "the accused intended that the acts in preparation or planning would be for an action or threat of action involving an armed attack on the Australian Army Barracks at Holsworthy in New South Wales". That is the whole argument that the Crown have run, that is what the whole ultimate threat of action is about. The threat of action was in relation to an armed attack and that these steps that were being taken were preparation or planning for that ...[4]

As to the first, the Crown have to prove that the individual accused whose case you are considering intended that acts done in preparation or planning would be for the purpose of an armed invasion of Holsworthy Army Base. That is the first characteristic. The Crown must prove beyond reasonable doubt that that state of mind was held by the particular accused whose case you are considering. If it has proved that matter, the Crown will have proved the agreement entered into by that particular accused contemplated that the implementation of the agreement would involve planning or preparation for an armed attack on the Australian barracks at Holsworthy Army Base.[5]

7 It would appear that the three of you met, or knew each other, through the Preston Mosque, and friendships were formed, not necessarily with each other. You Aweys and Fattal appeared to have little contact, whereas you el Sayed had contact with both Fattal, whilst he was in prison, and contact with Aweys. The other two men who were acquitted were also involved with the Preston Mosque. There was evidence that some of you had known each other prior to your involvement in the Preston Mosque, having worked as bricklayers or labourers for a man by the name of Yurtsever. There were numerous conversations, recorded on telephone intercepts and listening devices, in which you were conversing with each other or with others back in Somalia, in a variety of languages including Somali, English and Arabic.

8 The background to this offending appears to lie, to a degree, in the support that you all have for Al Shabbab, a radical and extreme Muslim group based in Somalia, involved in the civil war that has been raging in Somalia on and off for decades. You Aweys, together with Khayre and Ahmed are all of Somalian background. You Fattal and el Sayed are of Lebanese background. All are practising and devout Muslims. There is of course, as in all religions, great divergence in the views held by those within the religious Muslim world, it is an unfortunate, but widely known fact that some Muslims, who hold extremist views of not only their religion, but their obligation under their religion, to martyrdom, have engaged worldwide in terrorism.

9 The case really commenced with the travel to Somalia by Walid Osman Mohamed. Walid Mohamed was planning to travel to Somalia to fight on behalf of Al Shabbab against the government. Al Shabbab, as indicated, was an Islamic religious and political group that wished to replace the government and was involved in armed conflict in Somalia. You, Aweys, were a supporter of Walid Mohamed and you assisted him in a number of ways during his time in Somalia. You had numerous conversations with him, many of which were recorded and played to the jury as part of the trial. Shortly after Walid Mohamed made the bookings to travel to Kenya, which was one of the ways of entering Somalia, the names of you, Wissam Fattal, and another man by the name of Abdul el Haouli, were added to the booking. On 31 December the group, including Walid Mohamed, el Haouli, Walid Mohamed's wife and child, attended at the Melbourne airport to fly to Kenya. You, Fattal, also attended, intending to travel as part of that group. You were initially checked in for the flight, but, upon further checking, it was ascertained that you did not have the necessary visa that would permit you entry into Kenya. You were prevented from travelling that day, and thus you were unable to go with Walid Mohammed to train and fight for Al Shabbab. You made arrangements to try and obtain the necessary visa, but finally, by 30 January, you determined that the visa would take too long and you asked for your passport to be returned and your airfare refunded.

10 By February 2009, there were telephone intercepts on the phone of you Aweys, recording conversations between you and Sheikh Hayakallah, which demonstrated quite clearly your interest, indeed passionate interest, in the course of what was occurring in Somalia and particularly in respect of Al Shabbab's cause and progress in fighting with the transitional federal government. There are, throughout the entire period, many calls that indicate the extent of the interest that you, Aweys, have in relation to what was occurring in Somalia. None of that is surprising. Somalia is your homeland and your interest in those areas, as to what was occurring in Somalia, is natural. You have family still remaining there, and from that I draw no adverse inferences. There are certain significant conversations, from which a different conclusion will be drawn, but they are individual conversations that were highlighted to the jury and relied upon by the prosecution. I do not intend to go through each of the calls that were dealt with by the Crown and make findings in respect of them. The findings I make will be general, as to those matters, and not specific in respect of each call and what it means.

11 The calls and listening devices recorded and involving you, Fattal, demonstrate that you have a strong, passionate, devout but entirely rigid view of the Muslim faith. It is a simplistic view but unfortunately not a rare view. You are certainly the most dogmatic and outspoken, in terms of religious fervour, amongst the three who now stand before me, although quite clearly you, Aweys, also have extremely strong views about the Muslim faith and the obligations it places upon Muslims. All of you believe in the principle of martyrdom. All of you believe it is your obligation to oppose and deal with those you describe as infidels, being persons who are not of the Muslim faith or those of the Muslim faith who do not observe the faith in what you perceive as an appropriate manner, or adhere to the strong and fundamentalist views that you all hold.

12 During the period of February 2009 you, Aweys, sought and collected money to be sent to Al Shabbab in Somalia and had numerous conversations with Walid Mohamed, about his training, in respect of fighting in Somalia on behalf of Al Shabbab. There were also numerous conversations recorded relating to the Muslim religion, including calls that demonstrated the views held by you, Aweys and Ahmed, of that religion, your support of that religion, the support of Al Shabbab in Somalia, all of which were consistent with their belief and views of their religion and there were long passages of conversation quoting religious text. There were a number of clerics with whom you, Aweys, and el Sayed had particular contact, being Sheikh Hayakallah, Sheikh Ikrama and Sheikh Abdirahman. It was from these sheikhs that a fatwa, seeking approval for the proposed action, would eventually be sought.

13 At the Preston Mosque, during the period of at least February onwards, there was an undercover operative who went by the name of Hamza. He befriended Mr Fattal and others at the mosque. Although he was blamed by you, Fattal, as being the person behind your trip to Holsworthy, he had no real part to play in these proceedings, and I mention him only for completeness.

14 As time went on and it approached March, the expressions and statements made by you, Aweys, towards the people and the government in Australia became more heated and more anti-Australian, including comments that related to bushfires and the fact that everyone was very happy that they had occurred, as a punishment for this country, and comments relating to the economy, stating things such as 'these filthy people are coming down - the economy goes first, factories are shutting down, fire is coming and there is no water'. It is clear that, at that time you were making that particular call on 11 March 2009, you held strong views against the Australian people.

15 On 18 March 2009, an incident occurred in which you Fattal became involved with a man by the name of Ysen Tairi. This resulted in a physical altercation and the Victoria Police, and ambulance service attended with the police ultimately issuing a warrant for your arrest on a charge of assault.

16 There was a telephone call on 21 March 2009, between you, Aweys and Ahmed, in which you discussed having to send Omar, being Fattal, to Sydney for a couple of weeks because 'he put three guys in hospital'. I should note, in relation to this matter, that you stood your trial in the County Court for the charges of assault and were acquitted of those charges. The reference is made, only to explain why you went to Sydney at that time. On the evening of that phone call you, Fattal, were observed by AFP surveillance boarding a Sydney bound train at the Southern Cross railway station, having purchased a ticket at 7.42 pm that day. A number of males farewelled you at the station, one of those being you, el Sayed.

17 On Tuesday 24 March 2009 an SMS was sent from a telephone used by Fattal to a telephone utilised by Khayre which said, in part:

Peace be upon you. Can you give the address of Australian A--- and name of train station

On that same day there was a telephone conversation between you Fattal and Khayre, where Khayre asked whether it was you who sent the text message to which you said yes, and asked Khayre if he understood the message. He responded by saying he did, and he will speak to someone about it and then send a message back to you. You had, at this stage, arranged work and you were to commence the next day, being Wednesday 25 March. You had arranged to meet your new employer at Guilford train station in Sydney, and you kept that arrangement, worked at the site and were observed to be working by the surveillance crew.

18 On Thursday 26 March 2009, you Fattal, spoke to el Sayed and told him that you were attending your second day of work in Sydney. On that same day an SMS was sent, from the phone utilised by Fattal, to the phone utilised by Khayre, with a message that read in part:

Peace be upon you. I'm waiting for your message.

19 On Friday 27 March 2009, you Fattal, in a number of conversations, indicated that Mohamed, the bricklayer, did not work Fridays, Saturdays or Sundays, and that you did not like the work with Mohamed and would prefer someone else to work with and you asked a friend for names of bricklayers. At approximately 5.30 on this day, a SMS message was sent from a Telstra pay phone in Preston, to the telephone service used by Fattal and the message read:

Holsworthy train station. The base is right in front of Macarthur Drive. Peace be upon you brother.

20 The crown case was that the message was sent by Khayre from a public phone box in Preston, you however maintained that it was sent by the undercover operative Hamsa. I make no determination that it was sent by Khayre, but I can say, that I am satisfied beyond reasonable doubt, that it was not sent by the undercover, as there is clear evidence that establishes he was not in the area of the phone box at the time the message was sent.

21 You, Fattal, were renting a room in a house in Lakemba in New South Wales. On the next morning, 28 March at about 8.34 am, you left that address wearing casual clothes and carrying a blue plastic bag. You travelled to the Lakemba train station and from there to the Holsworthy train station, changing trains first at Sydenham and then at Wolli Creek stations. At about 10.00 am you arrived at the Holsworthy train station, went up the stairs to the concourse that leads in one direction towards the Holsworthy Army Base and the other direction to an area of housing and a parking area. You initially walked over to the path that leads towards the Holsworthy Army Barracks, stopped, paused for a short time, turned and walked back along the concourse, down the stairs and towards what is visible as the station car park. There was some sort of construction site on the area opposite the car park at that time. When you went down the stairs, heading in the car park direction, you went out of sight and you were not captured again on CCTV footage until 10.12 am, at which time you were seen to walk up the stairs from the car park towards platform 2, which was where you arrived. You walked down the stairs to platform 2, then spent some time looking in the direction of the Holsworthy Army Base. You then walked back up to the concourse level, where you walked around for a short time and at 10.18 am, you walked along the concourse of the station going towards the Holsworthy Army Barracks. You were observed to walk down the steps and along the path that runs beside the boundary of the Holsworthy Army Barracks. You walked up to near the entrance of the Holsworthy Army Barracks, where you stood for a short time, turned around and walked back in the direction from which you came. You climbed the stairs to the concourse area and then spent some time standing, staring in the direction of the Holsworthy Army Base. You then left and caught a train back to Lakemba via the different stations. You were seen arriving at 11.48 am at the Lakemba railway station.

22 On Monday, 30 March 2009 at approximately 11.00 pm, you had a conversation with Hassan el Mahmoud who asked: 'Did you get the ... did Yacqub give you the ...' to which you responded 'Yeah yeah'. El Mahmoud then asked if you went there and you stated that you went there and that it was good.

23 On Wednesday 1 April 2009, you had a lengthy conversation with el Sayed. That was a significant conversation in the issues for determination by the jury. The Crown submitted to the jury that this conversation, where you discuss setting up the bricklaying business, was in fact coded conversation, and at the beginning of the discussion you, el Sayed, actually say 'I'm not going to mention name. I'm going to speak in riddles'. The salient parts of this conversation were as follows:

The first point of significance relates to the seeking of a fatwa and it is at page 5 of telephone intercept no. 116 where it says:

El Sayed: Yeah, there's a brother who's going from here to there. You know him. He's going, he's going on Sunday. I said to him, I asked him few questions and I said to him to ask few scholars over there, like few sheikhs and then the answer will come to us here. Those people only feel Allah. Allah willing.

Fattal: Yes.

El Sayed: We said to him we wanted him to tell us that and he said Allah willing and so on. I also asked another brother here who speaks to them, you know him, he speaks to them over there.

Fattal: Mmm.

El Sayed: I also said to him, I said to him we wanted questions, we wanted, we wanted, we wanted to know if it was halal [permissible in Islam] or haram [not permissible in Islam]. He said to me, for your eyes Allah willing, I'll ask them for you.

The passage relating to what the Crown say was the visit to Holsworthy Army Base is found at page 10 of the transcript and I quote:

Fattal: May Allah bless you. So, anyway, the goods are ready, Allah willing.

El Sayed: What was that?

Fattal: Listen I, I, I saw the situation there.

El Sayed: Yes, yes, yes.

Fattal: Yes, I saw. It's something that's very easy.

El Sayed: By Allah?

Fattal: Yes.

El Sayed: And is there, is there, is there something good like -

Fattal: No, no, the, to enter the work -

El Sayed: I know, yes, yes -

Fattal: The work, it's easy.

El Sayed: By Allah? Thanks to Allah. That's very good.

Fattal: I went there, I strolled - yes.

Fattal: Do you know what I mean.

El Sayed: Yes.

Fattal: Yes.

El Sayed: Be careful, be careful over the -

Fattal: Yes I, yes I understand you. Yes.

El Sayed: Yes.

Fattal: It's nice, the stroll is nice and there is work and so on. Do you understand what I mean.

El Sayed: Thanks to Allah.

Fattal: And to enter the business, for a person to do business it's good. Do you understand what I mean?

El Sayed: By Allah, it's very good. Allah willing. May Allah -

Fattal: [inaudible]

El Sayed: Make it easy for us.

Fattal: Know what I mean?

El Sayed: Yes, by Allah, by Allah -

Fattal: But, eh, see, [inaudible], but, eh, I'll speak to you as to what happens, Allah willing.

24 You, Fattal, were arrested that day in Sydney, by members of the New South Wales Police Middle Eastern Organised Crime Squad, in relation to the incident alleged to have occurred near the Preston Mosque on 18 March 2009. You were extradited to Melbourne on 2 April 2009 and remanded in custody at the Melbourne Assessment Prison.

25 In relation to this incident of you attending at the Holsworthy Army Base, through questions put by your counsel and on your instructions, it was put to Hamza, the undercover operative, that he in fact had instructed you and told you to attend in that area and that you would in fact find work as a result. You claimed, through questions put by your counsel, that you had been set up by Hamza and that your attendance at the Holsworthy Army Base area was related entirely to looking for work. I reject that assertion totally. As becomes obvious from later calls and discussions, it is clear that your attendance at Holsworthy Army Base was not in any way coincidental or the result of you being pushed in that direction by Hamza. It was, I am satisfied, beyond a reasonable doubt, consistent with the verdict of the jury, an intended undertaking by you to check out and look at the Holsworthy Army Base, to ascertain its suitability and accessibility as a target for a planned terrorist attack to occur at some later stage. Your contribution from this point on, Fattal, relates to the words and encouragement that you provide, predominantly to el Sayed, whilst in custody in Melbourne.

26 You, el Sayed, and you, Aweys, have a continuing ongoing involvement in relation to activity in respect of this conspiracy, particularly, the seeking of a fatwa or approval, permission from Muslim clerics to carry out an attack upon the Australian Army Base at Holsworthy.

27 The activity undertaken by Khayre, of leaving Melbourne, going to Somalia, the Crown allege, that he was in fact going there to seek a fatwa. As an alternative, to that being sought by Aweys via the telephone, he was to seek it personally, by his presence in Somalia. The jury found that Khayre was not guilty, in respect of this offence, and accordingly I will not act upon the basis that he was any part of the conspiracy, or that his actions formed any part of the conspiracy.

28 The same applies in respect of Ahmed. He was alleged to be one of those involved in the planning. Ahmed maintained that he in fact was the person trying to stop this particular conspiracy from continuing. He accepted that there was a conspiracy on foot, but said that he was not any part of it. Accordingly, consistent with the verdict of the jury, I will not be acting upon anything said or done by Ahmed as being in furtherance of this conspiracy.

29 The jury's verdict, in the case against each of you, meant that it must have been satisfied beyond reasonable doubt that a conspiracy to do acts in preparation for a terrorist act was in existence at the relevant time nominated in the indictment. Further, the jury must also have been satisfied, beyond reasonable doubt, that each of you was a willing participant in the agreement, and that each of you intended that the acts in preparation would be for an action, or threat of action, involving an armed attack on the Australian Army Barracks at Holsworthy in New South Wales. The intention, behind such planning or preparation, was to advance the cause of Islam by violence and that it would be done, to coerce or influence by intimidation the Australian Government, or foreign countries, or alternatively for the purpose of intimidating the public, or a section of the public. Further, the finding of the jury means that they have determined that each of you intended that the acts in preparation would be for an action, or threat of action, which, if carried out, would have caused either serious harm to a person, serious damage to property, or a person's death, or the creation of a serious risk to the health or safety of the public, or a section of the public.

30 The Crown went to the jury on the basis that, the acts in preparation or planning, if carried out, would have been for the purpose of an armed attack on the Holsworthy Army Base, and, accordingly, that each of you intended that the acts in preparation would be for action, or threat of action, that was intended to and would have caused, at the very least, serious injury or death to members of the Australian Army, and members of the public on that army base.

31 On 12 June 2009 in a discussion between you, Aweys, and Sheikh Hayakallah, there is an indication to a minor degree of the type of action that is being sought and the reasons behind it. At page 3 of telephone intercept no. 223 the following conversation is recorded:

Aweys: That is correct. It is good. I will tell you now in advance, as I have told you, these are men from the Middle East. They are youth ... What can I say ... There are about five to six men now. Men who are their friends are in prison who we too knew each other earlier, but who were very close to them and their kinship have been imprisoned. They are imprisoned in this country. So, there are issues about these men having an intention to conduct operations here. We then disagreed between ourselves. We said - what if this endangers of all Muslims in this country/city/town, and they are saying we are not going to stay like this til you bring us a religious verdict. They also said that they do not trust the men, religious scholars, in this country like the sheikhs residing in this country. Hence, like your sheikh they said like that sheikh we would accept and that we will abide/accept what he tells us.

Hayakallah: Smart. May Allah bless you. Ammo, this is a religious question. They are right. It is good. So, what they actually want to do is revenge and hit the enemy in the artery, no matter what happens. Isn't it that what they want.

Aweys: Yes. What happened is that one thing. There are men, you, there are men and I don't know if you have heard it before. Who are numbering up to 10 had been imprisoned here. These people, you know these infidels, they accuse them of something. Anyhow, the men were convicted and they are sentenced between 10 to 15 years of imprisonment. They were very good youth who were humble/poor and they were falsely framed for something that does not exist. These men are the ones that remain behind and we were nonetheless associates of them. But, we known them informally in general sense, and they are good people whom we are brothers. So, one of them came up with this story - to do something, here and against these men. He said the reason is you know that they are holding our men and you and I know that they are holding them in aggression. They invaded our Muslim lands in aggression and the army of this country where we are is currently away. He raised a lot of questions and he said we want to do something here. We will not just sit here and we could not go to your land as well, so he said what do we do then.

32 Again, on 10 July 2009, a telephone intercept transcript no. 274 commencing at page 2 of that transcript in a discussion between Sheikh Abdirahman and you, Aweys, similar thoughts were expressed as the issue to be determined was again repeated commencing with Aweys saying:

I don't know if Ammo told you but the guys are men who came from the Middle East and areas of that proximity, you would know.

Abdirahman: Very much so.

Aweys: Hence, they want to know if they are about six guys who were among our colleagues. They want to know if it could be carried out here operations or if, for example, something can be robbed/taken from this government. Because they are saying that they are engaged with us in a war. Is it permissible for us to, like, to rob the system, do you understand.

Abdirahman: Very much so.

Aweys: Because, most of them cannot leave as their passports were confiscated, and are followed by entities of the State/Government. So, they can't go anywhere.

Abdirahman: Yes.

Aweys: Therefore, they are saying if we are stranded/stuck here, what is then permissible for us to do for Allah's sake. That's what they would like to know.

Abdirahman: So, they want a martyrdom operation.

Aweys: Yes. Mostly they can access acquiring weapons such as guns/rifles. They know where they can get them. Thus, they want to enter into where the military/forces are stationed, the barracks. Their desire is to fan out as much as they could until they would be hit.

Abdirahman: Yes, whatever it's very much so.

Aweys: So, they are saying that they can have the chance of guns/rifles that can take/carry up to 60 bullets and, which takes/accommodates 60 seeds. And 20 minutes would be enough for us to take out five, six, 10, and 8 whatever Allah know, who are the armed forces.

Abdirahman: What did you said. Up to six minutes.

Aweys: No. Six of them once they enter inside the location/place for 10 minutes, the specified place, for about 20 minutes to 30 minutes until they will use up their weapons. What they can get.

Abdirahman: Very much so.

Aweys: Is that permissible? Could there be disastrous repercussions and that many issues/concerns.

Abdirahman: Look brother.

Aweys: Yes brother.

Abdirahman**:** The clerics say 'The judgment of something is a branch of its [inaudible].

Aweys: Yes.

Abdirahman: That means when you want to answer an issue from a religious law perspective.

Aweys: Yes.

Abdirahman: It's imperative that the question in the prevailing circumstances must be thoroughly understood.

Aweys: Yes. Correct. And that's why they rang for. That's the importance of it all.

Abdirahman: If they want to enter into a martyrdom or risky venture, we would be looking, you know, into the religious legality of what they men can cause, firstly.

Aweys: Yes.

Abdirahman: Firstly, assessing the enormity of the damage that they can inflict the enemy.

Aweys: Yes.

Abdirahman: The repercussions of its aftermath and any lingering effects would be analysed.

Aweys: Correct.

Abdirahman: So, where you are is Australia isn't it.

Aweys: Yes. It's Australia, and in the city of Melbourne. As you may be aware of these guys that we are present in their midst, the infidels, their forces are cast in the land of Islam, and are causing great damage in the upper front.

Abdirahman: Yes.

Aweys: They are casted from Afghanistan up to Iraq. They are massacring and do no favour to anyone. They are augmented infidels, and these ones aren't any better than the English.

Abdirahman: I am aware of them, man, what I ask you brother

And then the call was in fact cut off. It continued at call 275, but it is not necessary to relate more of that call..

33 On 13 June 2009, there was a telephone intercept, call 225, between initially you, Aweys and Sheikh Hayakallah, in which you then passed the phone over to el Sayed, who continued the conversation with Sheikh Hayakallah. In that call you, Aweys, are seeking the answer from Sheikh Hayakallah to the questions I have just outlined, and the Sheik indicates he requires another two days to research the matter, and it continues in the following vein.

Hayakallah: Ammo, I am fine for you, in Allah's grace. Meanwhile, I was in a meeting earlier on. I am requesting you to postpone for me the issues/matters research for another two days that you would give me. Do you understand?

Aweys: In Allah's name ah. Are you getting to prepare it? Tell him. He is sitting with me.

Hayakallah: Yes, of course uncle, it requires a preparation and you're aware of that I am a bit busy. Do you understand.

Aweys: Ok. Tell him. Tell him yourself, ok, he wants to hear from you.

34 The call continues with Hayakallah explaining that it requires more time before he can provide an answer. The phone is then given to you, el Sayed, and you commence to speak to the sheik commencing with peace be upon you. You, el Sayed, indicate that you will wait to receive the answer. It is clear that you know and understand what the question is, for which the answer is sought. Subsequently, some days later you, el Sayed, attend the MAP and then pass on to you, Fattal, that he has spoken to the senior one, being Hayakallah, and although there is no answer yet one will be forthcoming shortly.

35 On 5 July at 7.59 pm you Aweys contact Sheik Abdirahman and yet again arrange for an answer to be received, but the Sheiks are not ready to provide that answer as they have a meeting and it is arranged that they will be called later to obtain the answer. The phone is handed over to you, El Sayed, by Aweys and he says to the Sheik, prior to that:

Yes. Just tell this man. Tell this man in his language. I will give him the number and I will leave. He is the eldest of the guys I have made the appointment with. He is the eldest of them, and here he is talk to him.

36 The ultimate answer given by the Sheiks, at a later time, is that no fatwa would be given for such an action in Australia, as it would cause significant problems for the Muslims who were living there.

37 There were discussions about Ahmed seeking a further Fatwa, but he was acquitted of the charge and I take no account of his actions. I am satisfied to the required standard of that material, and will sentence you based upon the facts I have set out today.

38 I also have to take into account your individual and personal circumstances.

39 Wissam Mahmoud Fattal, you are 35 years of age, having been born on 15 June 1976 in Tripoli, one of seven children. The two eldest of those children died as infants leaving five remaining children. Your eldest brother is a practising lawyer with three children living in Tripoli. You have a sister who is married with five children and she is a teacher and you have two younger brothers who are twins, aged 30. One is a teacher, married with three children. The other is a computer programmer, married with one child. Of the children in the family, it would appear that you were the only one who left school at an early age and did not continue to further education. You left school at the age of 14, not having performed particularly well academically during your time at school, although your perceptions are that you were in fact a good student. You went to work for your father, selling clothes in a market, and then set yourself up doing the same, for approximately three years.

40 One of the major aspects of your life was your kick boxing, for which you commenced training at about the age of 15, and which continued through until the age of 29/30. You began fighting in kick boxing competitions when you were aged 18 and you won the middle weight division of the Lebanese Kick Boxing Championship three times. You also won the Arab Championship, in Jordan, when you were 22 and went to Europe to fight in the light heavyweight division of the European Championships. You won a number of other championships in the Arabic world and travelled to America and Australia, as well as other places, competing as a professional kick boxer.

41 At the age of 27, you came to Australia as a professional kick boxer and for two years that was what you did. But after an incident, where you were fighting the then champion, Nick Kara, who you knocked out, your view of the sport of kick boxing changed and you gave it away. At that stage you were aged 29 or 30.

42 Whilst you were living here, you met your wife Khaldieh at a barbecue and commenced a relationship. Your wife is of Lebanese and Italian extraction. You married in 2004, but travelled back to Lebanon in 2005, at which stage Khaldieh was pregnant with your child. You remained in Lebanon for approximately six months. During the time that you were residing in Lebanon, you were involved in a demonstration that ultimately was of such a nature that you were jailed for a period of three months. The demonstration, in which you were involved, was outside the Danish Embassy in Beirut, in which a great deal of damage was done. You were arrested and charged. The demonstration was in relation to the depiction of the Prophet Mohammed in a cartoon in a Danish paper, a clear indication that by the time you are in Beirut during 2005, you were already, what could be described as, fervent in your views about Islam.

43 It was during this time in Lebanon that you became, what could be described as particularly strong, devoted and fundamentalist, in your religion. You returned to Australia after you were released and lived with your wife and child for approximately six months. Your counsel submitted that the separation between yourself and Khaldieh was an amicable separation, with you determining to leave the house. You became more religious, more fervent and fundamental in your views, as time went on. When you left the marriage you went, initially, to stay at different Mosques. After being at the Mosques, you went to live for some time at Broadmeadows and then at Jacana. You were working as a bricklayer over that time. You worked with Zulklulf Yurtsever and would often work six days a week as a bricklayer. By the time of this offence occurring you had been living a rather monastic life, in a rented room near the Preston Mosque, for many months.

44 I have received two reports on your mental and intellectual health, one from Dr Danny Sullivan dated 13 April 2011 and a report from Dr Ian Stuart, clinical neuro psychologist dated 14 April 2011. Dr Sullivan in his report under the heading of 'Opinion' states:

There is no indication of psychotic illness, mood disorder, personality disorder or any substance abuse.

Mr Fattal became more zealous in his religious interests in the last few years. Interestingly the zeal and passionate avowal of Islam apparent prior to his trial appears to have attenuated. He appeared reasonable at my assessment, and did not avow extremist beliefs or seek to proselytise. This is in contra distinction both to the more extremist position set out in the brief of evidence, and also his more paranoid perspective to his defence lawyers and the legal process to and during the trial.

Consequently, I would regard Mr Fattal as a man of marked cognitive rigidity, difficult to shift in his opinions and perhaps more easily subject to influence from others.

45 Dr Sullivan then continued on to expand on this point and, in my view, actually went beyond the capability of an expert in terms of opinion and I will not act upon what is contained in the balance of paragraph 31. At paragraph 32 Dr Sullivan stated:

At the time of the offending of which he has been convicted, I believe his cognitive impairment would have impacted substantially on his judgement, ability to think clearly and capacity to make rational choices. I believe his cognitive rigidity was likely to have been causally associated with the adoption of a political view point which underpinned the plans for offending.

His incarceration will be more burdensome not only due to his cognitive impairment but also due to his isolation from others and his victimisation within the prison system, which I understand has already been apparent and which has resulted in him being placed in a management unit long term.

There are no specific mental health treatment needs currently apparent, although his cognitive impairment should be factored into any custodial placement.

46 I do note, in respect of the comments of Dr Sullivan at paragraph 33, that they must be based upon your instructions to him, that your placement in a management unit is a result of your victimisation within the prison system, when in fact it is clear from evidence, to which I will subsequently refer, that your placement within a management unit is as a result of your refusal or inability to follow the instructions of corrections, as to the behaviour necessary within the prison system.

Mr Fattal's presentation and the history of kick boxing raised the question of brain injury associated with kick boxing, chronic traumatic encephalopathy. It could be argued that his intelligence and memory have been affected by the many concussive blows to the head he has suffered in the past. It is also significant that in the course of his career he has suffered from severe headaches and an episode of memory loss for a period of 24 hours. The question of epilepsy has also been raised and an EEG when he was 17 showed some abnormal activity in the frontal lobe. At various times in his career his symptoms have led him to abandon kick boxing only to return when the symptoms subsided. He complains of similar symptoms on this assessment. He describes episodes in prison when he has been affected by loud noise ('I go crazy') and he also obtained a high score on the post concussional syndrome scale, endorsing items such as headaches, dizziness, noise sensitivity, sleep disturbance, fatigue, irritability etc as severe problems.

As far as his cognitive/executive skills are concerned there are reasons for not accepting the proposition that his intelligence has been affected by brain injury. In my opinion, Mr Fattal's low cognitive functioning is not the result of trauma; it is a longstanding condition that represents his natural intellectual endowment...

In Mr Fattal's case he performed at a low level on all tests given with no evidence to suggest that his vocabulary has ever been at a higher level. Even his arithmetical skills are low, supporting the idea that his abilities have always been about the borderline level.

The results show that Mr Fattal does not suffer from an intellectual disability as his intelligence on the verbal comprehension index (72) and perceptual reasoning index (71) is above the cut off of 70. Determination of intellectual disability also requires there is an impairment in other areas of functioning such as communication skills or adaptive functioning. Mr Fattal does not suffer from any of these conditions.

48 Dr Stuart appeared to be somewhat surprised by your test results and he gave a number of tests, to try and confirm your low functioning including malingering tests. In the end he concluded, that the test results were in fact a fair representation of your ability. Once again, Dr Stuart appeared to me to stray into an area that goes beyond the level of a clinical neuro psychologist. Including making comments such as: 'In my opinion Mr Fattal's limited intelligence has played a part in the commission of the offence. I believe he lacks the intelligence to have been a leader in the plan; he appears to be a simple man with a simple faith who has followed the lead of others in the conspiracy.' What Dr Stuart continues to say in that statement, together with others that go through the rest of that paragraph, are in my view, well beyond the expertise of any neuro psychologist.

49 I do act, Mr Fattal, on the basis that you are a person who has a borderline level of intelligence. I act upon the basis that you have over the years been involved in kick boxing and would have undoubtedly suffered various concussions and injuries. I am not prepared however to accept totally the information that you gave to Dr Stuart and Dr Sullivan, as the material that can be independently verified is clearly not accurate. Matters such as the reason you are in the management unit, reasons for fighting within the prison - maintaining that corrections are discriminating against you, the version that you put forward for your involvement in this case, the circumstances and the evidence, none of that is accurate. As a result, I have grave doubts when you complain to Dr Stuart that you have every symptom relating to post concussional syndrome and, of the 16 items, you describe 10 of them as being severe and the rest as moderate. I have no doubt however, that kickboxing and the blows you have received, may well have exacerbated your lack of cognitive skills, it is only the level of that impact of which I am unsure.

50 Equally, I do not doubt that your low cognitive functioning and your rather simple mind, which has an inability to grasp anything in the way of complex ideas, has led you to become so fundamental and rigid in your views of the Islamic religion. The views you have adopted are clearly extremist views, in terms of the interpretation of the Koran, including that all persons who are not Muslims and those persons who are Muslims, but not practising faithfully, according to you, are people who are infidels.

51 Whilst Dr Stuart and Dr Sullivan refer to you as having very limited cognitive skills, and therefore not being able to rationalise and deal with interpretations related to religious doctrine, there were before this court lengthy recordings of your involvement in debate about the Koran and the interpretation of the Islamic faith, and, it is clear, that a number of your fellow Muslims, from the Preston Mosque, held you in high esteem for your knowledge and devoutness in the application of your faith. However, your faith, and your interpretation of it, was such that you considered Australia, its government, its troops and its citizens were at war with the Muslims living in Muslim lands, in places such as Chechnya, Afghanistan, Somalia and the like. As indicated, I accept that you are a simple man, however, the rigidity and harshness of your views are consistent with you being a simple man. Unfortunately, your low intellectual functioning does not make you any less of a danger. As can be seen from the description given earlier, it does not require great skills to plan or organise an offence of this nature.

52 Your view, equally, was, that by the committing of troops to any of those places, the Australian government had in fact declared war upon the Muslim faith and any action taken against the Australian government and its peoples would, in fact, be legitimate in terms of defending the Muslim faith, and, any action taken that resulted in the death of any of the persons acting in this manner, would render them martyrs to the faith. Whilst that is a simplistic expression of your views, it is one that does sum up, briefly, the views you held at the time of this offending. There is no doubt you continued to hold those views during the trial, and importantly, subsequent to the trial.

53 All counsel were given the opportunity to specifically put on behalf of their clients whether they had resiled, in any way, from the views they held in relation to the actions that were being planned, or to their views on the Muslim faith, and you, Mr Fattal, like your two co-offenders, gave no instructions that there was any change at all in your attitude towards any of those matters, or this country. I will deal with that issue shortly.

54 You still maintain contact with your child, who is Rayan, approximately five years old - approaching six, that contact is via telephone. The rest of your family is in Tripoli, so the only contact you have with them is also via the telephone and on a very limited basis. You have been in the management unit at corrections and, as currently advised, you will be there for a lengthy period of time. Your placement in the unit is in contradistinction to your two co-offenders. You are in the unit because you will not obey the rules that are laid down by corrections. You are a management problem. You insist on proselytising, to the prison population, when you have access to them and that becomes a source of complaints from other prisoners and also leads occasionally to violence. You are an intolerant Muslim, in that, you believe everything has to be done in your way and no other, whereas most Muslims, like many religions around the world, accept that others are not of their faith, or do not keep their faith as strongly as they may, and that is considered perfectly ok. You, unfortunately, do not tolerate anyone deviating in any way from what you see as the correct way of the Prophet. Whilst your conversion to this fervent Islamic belief is relatively recent in terms of the percentage of your life, it appears to be unshakeable.

55 Your ex-wife Khaldieh Elorr was called on the plea. She gave evidence of meeting you in 2004 and marrying you on 27 February 2005. You lived together for approximately two years. She described you as a happy-go-lucky person, naive but with a good heart. She said that she made the majority of the decisions in the household and the marriage, because you couldn't make decisions. She said that when she first met you, before you married, you were still doing kick boxing. She said she had a child from a previous relationship and you separated in late-2007, after your return from Lebanon. She said she found you a little dopey and that really you were not very responsible towards the children. She said she had not noticed your lack of mental ability, prior to the marriage, in the same way as she did afterwards. All of which is supportive of you having cognitive impairment, as a result of the limited intellectual capacity with which you were born.

56 In relation to you, Saney Aweys, your personal circumstances are such that you were born on 1 May 1983 and are currently 29 years of age. You were aged 25 and 26 during the tenure of this conspiracy. You were born in Somalia in Mogadishu, the eldest of five children, three boys, two girls. Counsel informed me that you were of the Darut Clan, with your father being a primary school teacher and your mother a medical student, at the time of her marriage. You attended primary school to the level equivalent of about Grade 5 or 6 and you learnt to read and write in Somali. In 1991, Somalia became involved in civil war and many people including friends, relatives and neighbours of yours were killed. As a result, in 1992, you, together with the rest of your family, escaped to Ethiopia in order to avoid that conflict. You were travelling in a convoy of trucks and some of those trucks were destroyed. You and your family, together with other relatives, settled in a refugee camp in Addis Ababa. Your father, who you described as not being a political or military man, returned to Somalia in 1993, in order to assist some relatives, and you and your family were informed later that he had unfortunately been killed in Somalia during that time.

57 You remained in Addis Ababa from 1992 until 1998, at which stage you came to Australia. You did not attend school during that time. You were aged between 9 to 15 during the times that you were living there - relatively formative years. You worked to support your family by translating for others, having picked up the local language, Ahmaric. When you arrived in Australia as refugees, you came with your mother, brothers and sisters and settled in Heidelberg. This was in 1998 and you attended the English Language School for the first six months, and then Brunswick Secondary College where you did Years 10, 11 and started Year 12. You did not complete Year 12, leaving to commence working to help support your family. By the time you had finished your education, however, you could speak Somali, English, Ahmaric and, what was described as, some religious Arabic and you had, considering your background, performed very well by obtaining an overall B Average.

58 You married your wife, Binti Aden Din, in early 2003, there are now four children from that marriage, three boys and one girl. The eldest being approximately 7 and the youngest about 2 years of age. The youngest was born whilst you were in custody. You worked in a series of jobs from the time you left school, either as a forklift driver, packager, process worker, and were constantly employed. In 2005, you sought to obtain some qualifications that would enable you to gain financially more rewarding employment and, after a number of enquiries, you commenced working as an apprentice boilermaker for Bestfab Steel Fabrication on 23 May 2005. You worked for that company right up until the time of your arrest on 4 August 2009. Your work involved designing, cutting, welding, often on large infrastructure projects such as the eastern freeway, the Broadmeadows/Craigieburn rail line and improvements to the Westgate Freeway. You completed your apprenticeship some three months before your arrest.

59 You have been before the courts on three prior occasions, when you were aged between 17 and 21. The first as a matter from the Preston Children's Court on 6 April 2001 - a charge of intentionally causing injury, for which you were placed on an undertaking. I am told that this incident occurred as a result of a confrontation between some Somali youths, including yourself, and another group of youths in the Heidelberg area. The second is an unlawful assault count, on 3 July 2003 and would best be described as a road rage incident. You assaulted a man with whom you had been involved in a road accident. For that offence you were fined $1,000 with $3,000 plus costs and your licence was cancelled. The final matter was a charge of threatening serious injury and that was dealt with at the Heidelberg Magistrates Court on 7 December 2005. A fellow employee had confronted you at work for not wearing a safety vest and you threatened him with serious injury and were fined $600 with conviction. These offences do indicate a degree of anger, but I do take into account that, there had been no further occurrence of any incidence of violence from December of 2005. You would have been approximately 22 to 23 at the time of the occurrence of the last offence.

60 Three witnesses were called on your behalf. The first was Abdinur Weli who was the head Iman at the City Mosque in Jeffcott Street, West Melbourne. He also works as the Islamic Chaplain at the various prisons and is of a Somali background. He has been in the chaplaincy work since late 2008, and on Thursdays he goes to the unit in which you are a prisoner, that is Deakin Units. He is involved in a program providing social support and mentoring, pre-release and post-release Islamic education for prisoners. A part of that education is about trying to ensure that the wrong interpretation, or the wrong understanding of the Islamic religion, and the views held by some people, is corrected. How he described it is, and I quote:

What we have is one-to-one mentoring by Iman's who preside over the Mosque that we think one-to-one relationship will help them understand or somehow reform if they have any ideological or extreme understanding.

61 He commenced seeing you in February of 2010. However, he was not seeing you as part of that program. He has described you as a person that he has seen changing. He didn't think that you had a very deep knowledge of the Islamic religion before and you were not terribly family oriented, but his view was that, in the last six to eight months, you had in fact been much more concerned in talking about your family. He sees a change in you, and gave an example of discussions that had been had, and I will quote the passage: [6]

We had discussion about whether somebody can commit violence against Australia. Whether it is Islamic or not, and discussing what is permissible or not permissible. He made a comment and he said, "Sheikh, if something Islamically permissible, it doesn't mean it's the best action to take." So I think that was for me a huge success, somebody who has been in jail coming to you and saying if its permissible it doesn't mean it's the best, so its not the permissibility it is whether it is good or not.

He described the relationship between you as very strong and that he would be supportive of you, whilst in prison and after you are released.

62 The second witness was Ihab Alazahari, who is the general manager of Bestfab Pty Ltd. He gave evidence about your commencing your apprenticeship, described you as very responsible and that you stayed at the firm for five years. He said you were friendly, willing to learn, a very quick learner, great at your job and dealt smoothly with other trades and persons within the industry. He found you to be 100 percent honest and popular at work.

63 And finally, Mr Abdiaziz Faraah, a social worker who lives in Carlton. He is currently working in the management of a family day care business. He worked previously for the Victorian Multicultural Commission as a youth commissioner and as a director of an organisation known as Somlink, which provides community support with the purposes of resettlement and integration into the community of African refugees. He gave evidence that you were a volunteer with that organisation, particularly in relation to the school holiday program and dealing with youth. It was about 2003 that you became active in that area, you were described as generous with your time and with a deep commitment to your local African community. One of the activities with which you were involved was coaching young children in soccer. They had a program called Bridging the Gap, it started in late-2007. You had a mentoring role in that program, which is difficult, I have to say, to reconcile with the words that you are recorded saying about this country, and the people who live here, and your attitude towards them. The witness indicated, in an answer in evidence, that your role was, and I quote,

'in mentoring and saying despite your difference in terms of culture or language, Australia is a country of fair go and if you put in the hard work you will have a fair go. All you need to do is just, instead of wasting your time in anti-social behaviours, go do an apprenticeship, do training, do skills and you will find a job equally as anyone else as part of Australia's easy going and fair go culture.'[7]

That program ran only from late-2007 through to 2008. It did not run in 2009. I accept that it is the view of the witness that that is what you were doing, but, as stated, it is really inconsistent with your own spoken words and I have a great difficulty in accepting that that was your view.

64 You obtained citizenship of this country in the year 2000. Of course the issue of deportation will never arise. During your time in custody you have worked as a library billet and undertaken various courses, such as first aid and food handling.

65 Nayev el Sayed you were born on 2 February 1984 and you were 25 at the time of this conspiracy. You are now 27 years of age. Your parents were both born in Lebanon, having met in Lebanon, they came to Australia in the beginning of 1981, as a result of the ongoing conflict and civil war in Lebanon. You are one of the five children of the marriage. You have two elder sisters, the eldest being Hayam Ali, who lives in Brisbane, married with three children. Your next sister Fatama Elterek, is married with two children, living in Broadmeadows. Your younger brother Tarek el Sayed is married and lives in Glenroy and your youngest sister is also married, with four children, living in Glenroy. Your parent's marriage was not a happy one, and was characterised by domestic violence, and a great deal of instability resulting in separations during the marriage; with you five children often being separated from each other. There were interventions involving the Department of Human Services, as well as, cases involving custody in the Family Court. At some stage your younger brother Tarek, for example, was placed in a foster home. Things would then settle down and there would be a resumption in the marriage. You resided, off and on, with different parents, but generally around the Glenroy area. You attended the Box Forest Secondary College, it has two campuses one in Hadfield and the other in Glenroy and you attended both campuses, depending upon where you were living. I am informed you did well at school, despite your education being interrupted.

66 When you were in Year 10 and aged approximately 15, in November 1999, you went to Lebanon primarily to be with your younger brother Tarek, who had been sent to reside with his grandparents in Northern Lebanon, due to difficulties he was having in relation to drugs and discipline issues. He was most unhappy about being there, and you and your younger sister were sent to spend time with him. Your mother and father were both still in Australia at this time. Your sister would have been about 10 years of age. Your family were Muslim, but not of any particular religious fervour. You were enrolled in school in Lebanon, and you stayed there until 2005, approximately six years. You continued your education, completing the equivalent of Year 12 but only in two subjects, being information technology and English. Not long after you were sent to Lebanon, your father moved to Lebanon, into a similar area to your grandparents, and built himself a house. You remained living with your grandparents. When you were aged 19, you did 12 months compulsory service in the Lebanese Army. The work that you did in Lebanon, prior to returning to Australia, was predominantly unskilled, such as working in restaurants; working as a waiter, or in a factory. You were 21 upon your return, and your brother Terek, returned with you. Your sister remained in Lebanon, as she had married there.

67 It appears, that your mother paid for your fare back to Australia, and your father was, by that stage, prepared to let you return. Upon your return you were initially residing with an uncle and a cousin, who had a business involving building and you worked for them, for about six months to a year, but left as a result of a dispute over money, that they owed you. You worked from then on, labouring in various jobs, for about five or six months at a time, before moving on to another job. However, in 2007 you obtained work as a bricklayer, working for a man in Sunbury who taught you the skills. You then commenced working in 2009 for Mr Zulkuf, which is where Mr Khayre and Mr Fattal also worked, and you did that type of work up until your arrest in 2009.

68 You are married, your wife Ramal, was born in Lebanon and came to Australia in 2007 and spoke very little English. You met 12 months prior to being married and you have a child, Mohamed, born on 1 March 2009, about two-and-a-half years of age at this stage. He was five months old at the time of your arrest. Your wife was working as a hairdresser, from your home, at the time you were arrested. She now resides with her mother in law.

69 In relation to your religious upbringing, neither of your parents could be described as particularly religious, and it was not any part of your upbringing, either in Melbourne or in Lebanon. You first really became exposed to your religion during your national service, in that you had friends who would pray and to avoid embarrassment, you would join in. On your return to Australia in February of 2005, you made contact with the Preston Mosque and attended there, over a period of time. It had some connection to the area in Lebanon from which your father's parents came, and you had lived for many years. You became a regular attender. Your counsel informed me that your devotion increased over time, and that initially your attendance was not of the same frequency it was towards the end. You do not accept that you hold radical views of Islam. Your counsel submitted that you were not the person expressing the extremist views against Australia. You may have been present when they were expressed, but all that you were doing was either nodding or agreeing by saying yes, or similar. Your counsel informed me about your activities at the Preston Mosque and, particularly in respect of the black Saturday fires in February of 2009, that you were one of the people from the Mosque who volunteered to attend to assist in handing out food, water and comforting those struggling with what was taking place.

70 As indicated to your counsel, however, the jury verdict belies those submissions put forward, that you are a supporter of Australia, that you do not hold any hatred towards this country or its people or its army. It is clear that whilst you have portrayed yourself to those at the Mosque as a charitable, devout, good Muslim man you have also secretly been involved in this offending. It is submitted that you are part of the mentoring program, within the prison system, of being exposed to the views of non-extreme Muslims. But, once again, my concern is you were exposed to all of those views previously, but you were capable of dissembling and convincing people that you were a just, fair and reasonable Muslim man. The level of animus expressed, towards this country and the persons living here, causes great concern. It is difficult to accept that such strongly held hateful views and attitudes can just disappear with the help of discussions from reasonable Sheikhs and Imans. You, like Mr Aweys, are held in Deaking B unit. It is a protection unit.

71 You have, Mr el Sayed, the support of your mother, your wife, your sisters and many other people. Your sisters have tendered reports to this court, as has your mother. All of which indicate the fractured life you had as a child and I accept that evidence. You are entitled to be regarded as a man of good character prior to this offending. The only matter you have recorded against you is a speeding offence and that does nothing to demonstrate or take away from your character.

72 In relation to each of you, reliance has been placed upon the conditions of your custody, and a witness, Brendon Francis Money, gave evidence before me on 31 August 2011, in relation to your custody arrangements.

73 In relation to you Fattal, he said that you are located in the Exford Management Unit at the Metropolitan Remand Centre, which relates to persons who are required to be separated from the mainstream population. It is a small unit of some 13 beds, single cells, each with a small run-out area. A small library and computer access are there, but very much limited facilities. Mr Money was asked, whether you were in that management unit as a result of your security classification, because of the nature of the offences, or whether you were there because of your, behaviour in prison. He said:[8]

Mr Fattal is separated into a security management unit as a result of his behaviour and that goes back some time. He was at the Melbourne Assessment Prison and was involved in an incident and was separated and in that time there have been various incidents, Your Honour, in relation to non-compliance and assaults in which he's been involved, and so as a result of that he was transferred down to our Barwon High Security Unit, which is where we place most of our longer term people, like where obviously they have better access to facilities, but we brought Mr Fattal up to Exford to assist with the pre-trial preparation.

74 As a result of your behaviour Mr Fattal, you remain classified as high security. The problem, in respect of your behaviour, is that you have an inability to control yourself, as has been demonstrated by your calling, yelling out during the trial, your abusing of me, Mr Money when he gave his evidence, your sometime refusal to attend court, and, overall, your inability to comply with the requirements of the custodial officers. Until that changes, there is very little prospect that you will be released from a management control unit.

75 On 1 July 2011, you were permitted access to the Deakin B Unit where your co-offenders were lodged, in an attempt to see whether you, Fattal, were capable of being moved more into the mainstream. There were two occasions, up to four hours on each occasion. The first occasion went smoothly, the second occasion was halted, as you were fermenting and encouraging non-compliance amongst the other Deakin B prisoners. You consistently fail, or choose, or elect, to refuse to comply with a range of procedures, required of prisoners and consistently defy staff and corrections officers' orders. On 5 June 2011, you had refused to leave the visitors area and you abused staff. Mr Money indicated that, it was in fact, the totality of your behaviour, with a strong pattern of non-compliance and extremist behaviour, during your time in custody, that has caused the classification that you currently hold. Together with the nature of the offending, of which you were charged and have now been convicted. The fact that you are a protection prisoner, is very much the result of the offences of which you have been convicted and the need to protect you from other persons within the prison system, but the fact of your separation within that protection, is the result of your own behaviour, was the evidence of Mr Money.

76 That cannot be a factor that is mitigatory, in terms of where you will be kept within the prison system. I will treat you in the same way as I treat, el Sayed and Aweys, in terms of security classification, being that I accept that your classification will mean your time in prison will be more difficult. But that security classification, is as a result of a number of factors, some of which, relate to your protection.

77 In your current placement, you have access to the exercise yard for up to six hours a day. It is a matter of making a request for the door to be opened. Equally, you have access to all medical facilities as required. Programs and courses can be accessed, but are definitely less than mainstream, and the exercise facilities are equally reduced. Mr Money was of the view that all three of you will remain in the protection stream, because of the nature of the offences of which you have been convicted and that will remain for the duration of your incarceration. Twenty-seven percent of the prison population is currently in protection. You may well come out of management, at some stage, but that will depend upon your own behaviour.

78 In relation to you, el Sayed and Aweys, you are also in protection but not in management, which means that you currently mix with a smaller group of people, but will have access to the general services; health services, access to programs the same as mainstream. Some courses may be run a little less often, but that would be to do with numbers in the unit, rather than being mainstream or protection.

79 Deakin B Unit holds up to 20 prisoners. It varies, depending upon the requirements of the prison at the time. Deakin B Unit is most likely to require an extra level of supervision and the persons housed there are those involved in matters such as the terrorist offences, Crown witnesses, and those who may need an extra level of protection from the population of the prison. There are cells and a day room and there is an oval attached to the unit. Visits to the oval are rotated between the three units of Deacon. All are protection. There are three units, for different reasons, and for different levels of protection. Units A, B and C are not intermingled. Prisoners in mainstream have much more access to the outside areas of exercise yards. In Deakin it would be approximately 45 minutes, at any given time, that would be spent outside and then back into the unit, and then at a different stage of the day, another 45 minutes of use and so on. Deakin B prisoners do not have access to the general industry part of the remand centre, so the employment is more limited, in terms of the service jobs.

80 El Sayed you have the role of the hairdresser in the Deacon B unit. Mr Money indicated, that all of you will be classified, once you have been sentenced and certainly, you will be sent elsewhere. In relation to the courses that are available, there are no rehabilitation or treatment services available to people until after they are sentenced prisoners, be they protection, or just straight remand prisoners.

81 The critical milestone, according to Mr Money, in the classification of a prisoner is the sentencing. I accept that each of you has been in protection as a result of the classification of your offences, and you have had a more limited ability to mix, work and exercise than if you had been in mainstream. I also accept that you will remain as protection prisoners for some time, possibly for the entire duration of your incarceration. This is the type of offence that would cause ill-feeling amongst others in the prison population and you need to be protected from that. It is a factor I will take into account in determining the appropriate level of imprisonment.

82 In relation to the issue of any recanting of the views held, at page 170 I asked:

Does anyone wish to be heard on what Mr Robinson had to say about recanting or non-acceptance of radicalism and the underlying basis of that for this offence.

No one sought to respond. Shortly thereafter this was put by Mr O'Connell at page 171, line 7:

Your Honour will have the benefit of the transcript of Mr Abdinur Weli evidence. It is our submission that a close examination of his answers provides the basis for the view that Mr Aweys was engaging meaningfully in alternatives.

Her Honour: No, in discussion, but at no point have either of you stood up and said 'these men no longer hold these views. They do not consider that jihad is appropriate in any way shape or form.' So I have nothing upon which to find that your clients have changed their views in any way. This is the point I have been trying to get across. I hope it's understood now. If you want to make further submissions about it, please do.

O'Connell: The submission is that whilst there is no evidence as to recanting, there is evidence, as I say, of a preparedness to engage, to accept mentoring, and to engage in a process that appears, very much on the evidence provided, to be constructive and to be in the right direction.

Her Honour: No, the evidence does not take it to that degree.

Mr O'Connell: We rely on it for that purpose. Obviously, we can take it no further than make the submission we have.

Her Honour: you have the opportunity to say anything else you wish to about a recanting or change of views or expression or of change of attitude. This is your chance.

Mr O'Connell: The position is that we have to rely on the evidence of Mr Abdinur Weli

Her Honour: Thank you.

83 Mr Trood, equally, sought some instructions and had nothing further to put to me. Mr Teehan, on behalf of Mr Fattal, relied on what Dr Sullivan had to say about the fact that 'his zeal and passionate avowal of Islam apparent prior to the trial appears to have attenuated.' As I indicated, that was not the impression that I had from five-and-a-half months of trial. None of you, not one, gave instructions to his counsel to say to this court, that you recanted from any extremist view that you held. That you no longer supported jihad, or terrorism, as being appropriate for pursuing the course of the Muslim faith. That is a significant factor because, each of you, whilst you hold those views remains a danger to the members of this community, and thus, protection of the community remains a very significant factor in sentencing you, as does personal deterrence.

84 The issue of general deterrence is, of course, of importance but it must be tempered by the realisation, as has been acknowledged in many cases of this nature, that people committed to terrorism and martyrdom, in the advancement of what they perceive as the course of Islam, are highly unlikely to be deterred by the incarceration of others. Irrespective of whether or not it will work, it is still a necessary factor to ensure that people understand crimes of this nature attract significant penalties, and lengthy periods of sitting, unhappily in a prison cell. As indicated there are many factors that have to be taken into account.

85 I have been urged by the Crown to consider the sentence imposed by Justice Whealey in the R v Elomar a charge against the same sections of the Commonwealth Crimes Act as this. It is very difficult to compare Elomar and your cases. Your intentions, your plans were deadly serious. It was to kill as many personnel, that could be found on the army base at Holsworthy, in the time prior to you being killed yourselves, as martyrs. Whether that was to be any, or all of you, I do not know. The planning had not advanced to that degree, but that was what the preparation was going toward. A totally horrific event, if it ever came to pass. Your views about Australia and Australians, and your attitude towards this country's armed forces, its civilians, and its government, were made clear in your statements. Your plans were evil. You intended to plan a random shooting of anyone you found on that army base, be it army personnel, civilian, male or female.

86 One of you was born in this country, a country to which your parents came to escape the civil war of Lebanon. Another of you came here as a 15 year old refugee, accepted by this country, allowing you to also escape a civil war in your homeland, where Muslim and non-Muslim fought each other. Finally, you Mr Fattal, came here by choice and decided to stay here, and not to leave, when you had the option, that could allow you to just leave this country, if you so disliked it. The fact that Australia welcomed all of you and nurtured you and your families, is something that should cause you all to hang your heads in shame, that this was the way you planned to show your thanks for that support.

87 What is by far, the most ameliorating factor that you have, is the amateurish level at which you were all operating, together with the fact, that this conspiracy did not advance to any significant degree. The Crown have urged that I should treat this matter as a more serious crime than that committed in the Queen v Elomar.

88 The Crown have submitted, that terrorist offences are viewed as very serious matters, not only in this country, this state, but in the international community. There is no dispute as to that. The Crown submit, that the factors which need to be taken into account in imposing sentence, include the protection of the community, general and specific deterrence, denunciation and punishment. In terms of evaluating the offending involved, the Crown rely upon the decision of New South Wales Court of Appeal in Lodhi (No 2),[9] Justice Price stated:[10]

That the Criminal Code (Cth) extends criminal liability to acts of preparation. The proximity between the criminal act and the commission of the substantive offence is necessarily more remote. These are anticipatory offences which enable intervention by law enforcement agencies to prevent a terrorist act at a much earlier time than would be the case if they were required to wait for the commission of the planned offence or for an unsuccessful attempt to commit it. The proximity between the preparatory act and the completion of the offence, although relevant, does not determine the objective seriousness of such an offence. It does not follow that as long as the preparatory acts relied upon to constitute the offences are in their infancy, criminal culpability must necessarily be low. The main focus of the assessment of objective seriousness must be the offenders conduct and the offenders intention at the time the crime was committed.

Having found that the appellants acts were at a very early stage, Whealey J determined that An evaluation of criminal culpability required analysis not only of the act itself but an examination of the nature of the terrorist act contemplated particularly in the light of the appellant's intentions or state of mind. The three offences were to be viewed, his Honour said, in their entirety. The judge pointed out that the very purpose of the legislation is to interrupt the preparatory stages leading to the engagement in a terrorist act so as to frustrate its ultimate commission. I see no error in his Honour's reasoning.

89 In Lodhi the court held that even though the conduct of the appellant did not give rise to any imminent, let alone, actual threat, of personal injury or damage to property, it doesn't follow that, as long as the preparatory acts relied upon to constitute the offences are in their infancies, criminal culpability must necessarily be low. I accept, as I understand do counsel for each of you, that this was a conspiracy in which the terrorist act contemplated by each of you was of a very serious nature, a very high level. The roles of each of you is clear. You Fattal attended at Holsworthy Army base in the manner I have already described. You Aweys had talks and posed questions to the Sheiks in Somalia, requesting permission or a Fatwa to carry out this operation. You el Sayed spoke to Fattal, obtained information about the suitability of Holsworthy army base, passed that on to Aweys and sought an answer from a Sheikh, utilising the services of Mr Aweys.

90 The overt acts, which are really the activity undertaken by each of you are described in, for you Mr Fattal, Exhibit 95, for you Mr Aweys, Exhibit 96 and for you Mr el Sayed, Exhibit 97.

91 Each of you played a different role. No one emerges particularly as a leader or as a follower. Whilst you Fattal were in fact incarcerated for a period of the conspiracy, it did not stop you from participating, by information being provided to you and from you, for the purposes of advancing it. This was far from a sophisticated plan that you were hatching. The reality is that whilst in Sydney, having fled there as a result of the police looking for you in Melbourne, in relation to an assault charge, you went by train to Holsworthy Army Base. You had with you no writing materials, no cameras, plans, nothing in any way sophisticated or capable of recording what it was you saw. You walked as far as the gate of the army base, you did not attempt to enter, you would have seen nothing but the entrance gate and two unarmed civilians recording names, together with bushland and possibly part of a carpark. In terms of preparation or planning it was of little or no use. It provided no information about whether anyone on the base was armed, if there was a second entry gate, if there were locked gates further on, or any information that would help you to determine the suitability of the base as a terrorist target. I accept, consistent with the verdict of the jury, that you did in fact go there for the purpose of ascertaining its suitability and that you did, Fattal, pass that information on to Nayev el Sayed and indicate that it was a suitable place and an easy place to target.

92 As indicated in relation to Mr Aweys and el Sayed, really it was the seeking of the Fatwa, that was the step that each of you were next involved in, and the communication of that to Fattal. The answer you received from the Sheikh in Somalia was a no, that you would not receive a Fatwa to cause that sort of damage in this country. You received that information in early July and you had taken no further steps by the time you were arrested on 3 August. That does not mean you were not going to take further steps, perhaps try and find an alternative Sheikh for the purposes of obtaining a Fatwa, possibly you were going to desist, that is not something that is known to me, and for me to make that determination would be nothing other than speculation. I find neither that you were going to continue, nor that you were going to desist, merely that on the 3 August you were arrested. In contradistinction to Elomar, I do not find that it was inevitable that you would commit this terrorist act that was in the process of being planned. I am unable to be satisfied to that effect and the evidence, if anything, points in the other direction.

93 Counsel for the Crown have argued, that this is a worse case scenario than that of Elomar on the basis that in that case, his Honour Justice Whealey was not satisfied that those involved were planning a terrorist offence, that would necessarily result in the death of numerous people, which, of course, is your situation. As a result, I have examined the sentence in Elomar carefully and whilst his Honour did, of course, find that there was no guaranteed plan for loss of life, there were many other factors that his Honour took into account, which are not present in your case.

94 His Honour found the following things; that the conspiracy was on foot for at least 10 months and possibly longer, that it continued until the time of their arrest, that they had purchased one lot of 10,000 rounds of ammunition, there were 12 different firearms located at the premises of Elomar, there were significant purchases of other rounds of ammunition, being 8,000 on one occasion, of which some of this was not located, there was purchase of laboratory equipment and many attempts to obtain laboratory equipment, together with chemicals that were capable of being used to create bombs. There were recipes for the construction of bombs, using the actual chemicals purchased by members of the group, using the laboratory equipment that was in fact purchased and ordered. There were also instructions on how to manufacture explosives, using rounds of ammunition. The group took camping trips together into remote parts of New South Wales, where there was shooting done by some members, at least, of the group. A number of the chemicals that had been ordered and purchased were not located by the police and clearly were hidden by the group, having formed the view they were under suspicion they purchased particular goods to enable them to hide the various items that they had, including chemicals, weapons and matters of that nature.

95 A number of the people involved had instructions for bomb making, avoidance of electronic eaves dropping, sniper handbooks and matters of that kind; each of the offenders had extremist or fundamentalist material located at their homes of such a nature that it was not, in part, shown to the jury, due to its capacity to inflame. None of those matters/materials were found at the premises of any of you. There was one speech by a Sheikh, from many years ago, extolling the virtues of martyrdom. It does not fall within the categories to which I have been referred. As Justice Whealey found at page 776:

This enterprise was a very deliberate and very determined. The deviant and brazen nature of its activity was very significant. The concealment process shortly prior to the arrest of the offenders was particularly significant. This was done not merely to avoid detection but to preserve the fruits of the criminal enterprise for later use when the heat died down. Indeed the prospect of detection and the introduction of wider terrorism laws did not lead the conspirators to countenance abandonment of the enterprise. Far from it. The focus moved to concealment and the avoidance of arrest so that the materials collected would still be available for their criminal purpose. As I said earlier, there is a wide range of materials that have never been recovered.

I accept the Crown submission that the arrangements were relatively well-advanced and were characterised by a clear and logical inevitability, namely that, but for the intervention of the authorities, such arrangements would have been put into effect sooner rather than later. In that sense, the conspiracy was advanced to such an extent that it could not be said its outcome was remote. More work needed to be done, of course, but there is no reason to doubt that, absent the intervention of the authorities the plan might well have come to fruition in early 2006 or thereabouts.

96 Whilst a severe sentence is required, due to the nature of the plan that you were seeking, it is not attenuated with all of the steps that have been taken by those involved in Elomar and, accordingly, in my view, does not warrant sentences of a level approximating those of Elomar. It does require, as I have indicated, significant sentences.

97 There is no doubt, that the protection of the community is one of the most important aspects of sentencing for offences of this nature, and that has been stressed in all of the decisions relating to terrorism charges and the imposition of appropriate penalties. I have carefully examined, the sentence of his Honour Justice Bongiorno in R v Benbrika, as well as the decision of the Court of Appeal in Benbrika. It is important that there be consistency of approach in respect of Commonwealth sentencing and I have examined, accordingly, the terrorist offences that were determined in the cases to which I have referred, including both Victoria and New South Wales, as well as the decision of the Queen v Roche,[11] that was a case in which a person had joined in a conspiracy to bomb the Israeli Consulate in Sydney. He had carried out the act of photographing and videoing the Australian Consulate in Sydney and the Israeli Embassy in Canberra, and had purchased some small igniters from a model shop.

98 The major significant factor in relation to this was that Roche withdrew shortly thereafter and played no part in the conspiracy for the next two years, at which stage he was arrested. He pleaded guilty and offered to give evidence for the Crown. He received a sentence of 9 years, with a non-parole period of 4½ years. The conspiracy itself, clearly, went no further than the initial planning stages and his Honour found, that the cessation of the conspiracy meant that nobody was injured and no property was damaged as a result. Whilst that case is of some interest, it is really not comparable, simply due to the fact of the withdrawal from the conspiracy and the cessation of the conspiracy, long before any arrests took place, together with the plea of guilty and the clear and substantial remorse exhibited by Roche.

99 I have taken into account all of the matters to which I have referred, including your personal circumstances, your prospects for rehabilitation, which I find to be exceedingly slim, as a result of you continuing to hold the same extremist views that you held at the time of this offending, the circumstances in which you will be held in custody, which will be in protective custody for the duration of your sentences. The relatively limited duration of the conspiracy, the lack of advancement of the planning of the conspiracy, the lack of satisfaction I have that you would have carried this conspiracy through irrespective of the result of the Fatwa - those are some of the factors I take into account in your favour. But I equally have to take into account, and I do, the seriousness, the very high level of seriousness, of what it was you were planning in relation to this offence. Equally, the protection of this community from you, and each of you and others of a like mind, so that aspects of protection as well as deterrence both general and personal are of significance. I take into account the need to impose an appropriate punishment for the crime that was planned. I also take into account that none of you have accepted any responsibility for your actions, exhibited any contrition or remorse, or in any way renounced your extremist views, that is a factor I am going to take into account in determining the appropriate sentence.

100 I see no basis upon which to distinguish between you in terms of the imposition of penalties. Whilst you el Sayed have nothing in the way of prior convictions, the prior convictions of your two co-offenders are not of any great significance, except to demonstrate, perhaps, anger management issues, but they do not go to an offence of this nature. The cognitive impairment of Fattal, I accept. Whilst I may not accept that it was caused by his kick boxing, I have no doubt his kick boxing may have had some impact upon it, but I agree with Dr Stuart that it appears to be, to a large degree, the cognitive skills with which he was born. That may make his time in custody more difficult, as he does not necessarily have complete problem-solving skills. He appears to be a man fixed and rigid in his views, possibly as a result of his cognitive deficits. Whilst I will take it into account, I think it comes into the category of being, just one of the factors that will make, like his co-offenders, his time in prison more onerous than others. The fact that he is in management, I do not believe is a matter in mitigation. It is a result of his behaviour and that is something that is within his own power to solve.

101 Accordingly, in relation to each of you, the sentence I intend to impose will be the same. I am obliged to impose a minimum term, that is at least three-quarters of the maximum penalty imposed for this offence, unless I am of the view that something more is required. I am not persuaded that it is necessary to impose anything more than a 75% minimum term.

102 Wissam Mahmoud Fattal, Saney Edow Aweys and Nayev el Sayed, you are each convicted and sentenced to be imprisoned for a period of 18 years, such sentence to commence on 16 December 2011. Pursuant to ss 19AB sub-s 1 and 19AG of the Crimes Act 1914 (Cth) the non-parole period fixed in respect of the sentence imposed upon each of you will be 13 years and six months. Pursuant to s 18 of Crimes Act 1914 (Cth), all of your sentences are to be served without hard labour.

103 I declare pursuant to s 16E of the Crimes Act 1914 (Cth) and s 18 of the Sentencing Act 1991 (Vic), that you Wissam Mahmoud Fattal have served 989 days of pre-sentence detention for this offence, for which you are sentenced and it is directed that that declaration be entered into the records of the court. I declare pursuant to s 16E of the Crimes Act 1914 (Cth) and s 18 of the Sentencing Act 1991 (Vic) that you Saney Edow Aweys have served 864 days of pre-sentence detention in respect of this offence, for which you are now sentenced and I direct that the declaration be entered into the records of the court. I declare pursuant to s 16E of the Crimes Act 1914 (Cth) and s 18 the Sentencing Act 1991 (Vic) that you Nayev el Sayed have served 864 days of pre-sentence detention, in respect of this offence for which you are now sentenced, and that such declaration be entered into the records of the court.

[1] [2007] NSWCCA 360; 179 A Crim R 470 at 489 [79].

[6] Page 73, plea transcript, 6 May 2011.

[7] Page 83, plea transcript, 6 May 2011.

[8] Page 182, transcript, 31 August 2011.

[9] [2007] NSWCCA 360; (2007) 179 A Crim R 470 at 527.

[10] At paragraph 229, ss 101.4, 101.5 and 101.6.

[11] A decision of the Court of Criminal Appeal of Western Australia 188 FLR (2005) 336.