Daniel Greenfield, you appear for sentence in relation to one offence, and that is knowingly collect (or make) a document connected with terrorism.
The offence involves a contravention of s101.5(1) of the Commonwealth Criminal Code.
The maximum penalty is imprisonment for 15 years.
The facts surrounding your offending are contained in an agreed statement of facts which, for my purposes today, can be summarised as follows.
As a preliminary matter, I note that, in the sentencing exercise (apart from what is contained in the agreed statement of facts), I cannot make a finding of fact adverse to your interests unless I am satisfied of such a fact beyond reasonable doubt. But I also cannot make a finding of fact in your favour in mitigation unless I am satisfied of that fact on the balance of probabilities.
In the first half of December 2021, you "shared" three documents online.
The first of those three documents was issue 8 of "Inspire Magazine". "Inspire" is a propaganda magazine created by the terrorist organisation known as Al Qaeda. Issue 8 contained instructions on how to make a remote detonator.
The second of those three documents was issue 12 of "Inspire". This issue contained instructions on how to make a car bomb using propane gas tanks.
You were aware that these issues of that magazine contained those various instructions.
Between 7 and 8 December 2021, you communicated with a person whom you thought was sympathetic to your (criminal) way of thinking, but who actually was an Online Covert Operative ("OCO").
Initially, these communications were on Instagram; however, they later were continued on the Telegram channel.
In these communications, you posted issues 8 and 12 of the "Inspire" magazine.
And in these communications, you were clearly aware of the criminal nature of the material, as was evidenced by your exhortation to the OCO to delete your communication to that person as soon as he (the OCO) had saved the sent material.
One concerning statement (amongst many) you made in those communications was: "I want to do it to cop shops all over Sydney just hit them".
Apart from posting issues 8 and 12 of "Inspire" to the OCO between 7 and 8 December 2021, you also, on 6 December 2021, posted issue 8 to a Telegram channel entitled "The stranger's'"; and, on 10 December 2021, you posted both issues (8 and 12) to a Telegram channel entitled "The truth has come to smash the falsehood". This post directed readers to the back of the specific issues of the magazine - accompanied by a smirking face emoji; a raised index finger emoji; and a black flag emoji. I am unable to make any further finding as to how widely, or otherwise, this information was disseminated. But, considering the nature of the information, it did not need to be widely disseminated to be potentially seriously dangerous to the Australian community.
The third of the three documents I earlier referred to was a book entitled "Middle Eastern Terrorist Bomb Designs".
On 20 December 2021, you posted an extract from that book to your Telegram channel. The extract was specifically concerned with a device known as a "banner bomb" - a form of explosive mechanism which is attached to an "objectionable banner" (i.e. "objectionable" to its intended target) and which detonates when someone attempts to pull it down.
In this context, a "dowla flag" was thought of by you as being such an "objectionable banner".
A fuller explanation of a banner bomb is contained in the agreed statement of facts:
"In various Middle Eastern nations, the display of antigovernment slogans is against the law. Terrorists often place this type of device on an objectional banner, hoping that the slogan will entice the officer to remove it. The explosive charge is hidden at ground level (often in a trash can or planter), and thin wires connect the charge with the contact points and metal strips. A battery is usually placed with the charge. When the officer pulls on the banner, the contact plates on the monofilament fishing line touch the metal strip. These devices are sewn within the banner, making them quite difficult to see".
In relation to the extract that you posted, you added the following comment:
"I should put a dowla flag up somewhere then put this device on it and just do one a week till death comes that will really terrorise the kafars not just one but multiple attacks".
I am again unable to make any finding as to how widely, or otherwise, this material was disseminated. But, again, considering the nature of the material, it did not need to be widely disseminated to be potentially seriously dangerous to the Australian community. I have said "potentially" here and at [15] above because of the concession referred to at [24] below.
On 24 December 2021, a search warrant was executed at your residential premises. Electronic copies of the three documents were located in PDF format on a MicroSD card.
You were "cooperative" with police and provided them with marginally useful information as to the PIN of your mobile phone and the location of your SD cards. I say "marginally" because, properly addressed, the police could have, in time, found this information for themselves.
The Crown has submitted that the objective seriousness of your offending is "high". Senior Counsel, on your behalf, submitted that the publications "are serious examples of the offence, if they were accurate". The Crown conceded that there was no evidence before the Court as to the "accuracy" of the publications; and the Crown conceded that it bore an evidentiary onus of proving that fact (a concession which, for the purpose of the sentence today, I am constrained by, but I am not sure that it was correctly made.). Whether or not the instructions contained in the two issues of "Inspire" were accurate, you believed them to be accurate. In my opinion, therefore, your offending is a serious example of that type of offence and its objective seriousness is high - and above the "mid-point" (as your experienced senior counsel properly conceded) - and this, notwithstanding that the third document might not have been easily read by any recipient.
The offence is additionally aggravated because you were on a community corrections order at the time of the offending.
You did not give direct sworn evidence in the sentencing hearing. Rather, your further subjective circumstances have been advanced through the report of a psychiatrist (Dr Furst) dated 16 July 2023; an affidavit made by your mother on 30 August 2023; and an affidavit made by your solicitor (Ms Huseyin) also on 30 August 2023. The Crown did not object to the tender of Dr Furst's report (in circumstances where you were not going to give evidence as to the truth of the histories given to Dr Furst), nor did the Crown seek to cross-examine your mother on her affidavit. As I shall later note, there are significant inconsistencies between the history you gave to Dr Furst and aspects of your mother's affidavit - both of which documents you seek to rely on - thereby giving rise to difficulties for you in the discharge of the onus of proof which you bear.
At the time of this offence, you were 34 years of age.
By that stage, you had a significant and continuous criminal history dating from 2006. Included in that history are numerous offences of violence, weapons offences, and offences of dishonesty - as well as periods of imprisonment.
In this latter context, on 11 February 2021, you were sentenced in the Local Court to a fixed term of imprisonment of 6 months for an offence of using a carriage service to menace / harass / offend, which offence was committed between 2 September 2020 and 16 December 2020. The facts of that offence are deeply disturbing. For example, on 2 September 2020, you posted to your Instagram account an image entitled "How to stab a Jew" and "depicting a body its major upper body organs and various knives pinned on specific areas." Another example is that, on 13 December 2020, you posted to your Instagram account an image of yourself holding a knife with the comment "Better to use a knife with the little teath (sic) on it not this blade cuts better I found anyway". Yet another example is that on 14 December 2020, you posted to your Instagram account an image of a male person with various points on the body labelled. It had a heading "Effective Strike". You posted this comment with that image:
"Self defence knife fighting kill points and nerve points best to go up Under the arm pit or neak (sic) that will kill… but I like the eyes so that if he doesn't die the dog is blind and the last thing he seen was you a lion (emoji of tears of joy and one finger)".
I note that, in relation to that sentence hearing in the Local Court, it was submitted on your behalf that a period of imprisonment should not be imposed, in part, because of your "… change in attitude…". That submission was undoubtedly made on your instructions. You were released from that period of imprisonment on 15 June 2021. Six months later, and notwithstanding the submission made in the Local Court about your "change in attitude", you committed the offence for which you are to be sentenced today - and whilst you were on a community corrections order (the same community corrections order you were on when you committed the offence for which you were sentenced in the Local Court and to which I have just referred) - that being a community corrections order for 2 years 6 months to date from 18 June 2020 to 17 December 2022 for the offence of custody of a knife in a public place (it being a "subsequent" offence).
As I have already noted, the balance of your subjective circumstances are based on your mother's affidavit, the report of Dr Furst, and your solicitor's affidavit.
I pause to make the following observation.
A copy of Dr Furst's report was given to your mother to read before she made her affidavit. This was not the subject of any submission by the Crown. Notwithstanding an absence of Crown submissions, I want to clearly state that it is an unacceptable practice.
I earlier mentioned that there were inconsistencies between the history you gave to Dr Furst and the affidavit of your mother, inconsistencies which were not the subject of submissions by your experienced senior counsel nor by the advocate for the Crown. The absence of submissions does not mean, however, that the Court can ignore them. The following are examples.
First, you told Dr Furst that you did not know your biological father. This is not consistent with your mother's affidavit in which she states that she used to take you to gaol to see your father (whom she said was "Neddy" Smith, a notorious criminal) and "… that is where [you] had the most contact with [your] father. [Your] father only ever came around to [your mother's] home on a few occasions to see [you]". Your mother also said that from "…12 years old to date, [you]… had no contact with [your] father".
Secondly, your mother, in her affidavit, states that it was she who introduced you to heroin - and when you were 12 years of age. You told Dr Furst that you started using heroin at 19 years of age and made no reference to your mother being the person who introduced you to that drug of addiction.
Not only were there inconsistencies between the history you gave to Dr Furst and your mother's evidence, there were also inconsistencies between that history and other material before me, inconsistencies which, again, were neither explained nor the subject of submissions. The following is an example.
Dr Furst, in his report, referred to entries in your Justice Health file. One of those entries concerned an assessment of you made by Dr Ho, a psychiatrist, on 8 January 2021. You told Dr Ho during that assessment that you "denied attempting to incite violence"; and that you "made a point of denying posting anything about Jews or violence on the internet". These denials are not consistent with the facts which were placed before the Local Court on 11 February 2021 - approximately 4 weeks after Dr Ho's assessment of you.
These various unexplained inconsistencies, taken with your history of significant criminal dishonesty, means that I regard what you told Dr Furst with considerable scepticism - unless supported by independent and reliable evidence.
With these various qualifications and cautions, I am satisfied, on the balance of probabilities, of the following matters (unless otherwise indicated).
Your father was a notorious criminal who played only a very limited role in your early life and none after you had turned 12 years of age.
Your mother had long-term issues with heroin and spent periods of time in incarceration whilst you were young and in your teenage years. Your mother has fortunately been able to recover from those difficult issues.
You were sexually abused by a family member when you were 8 years old.
From your early teens, you have abused illicit substances.
You had a disrupted education, attending multiple high schools.
As a child, you may possibly have had ADHD.
It may be accepted, therefore, that you had a dysfunctional childhood within the meaning of Bugmy v R (2013) 249 CLR 571, thereby reducing your personal moral culpability.
As I have mentioned, you have had a significant criminal history, most likely related to your long-term illicit drug use. That history disentitles you to the leniency which, in appropriate circumstances, can be extended to a first offender.
You converted to Islam in 2010. Your long-term drug use is inconsistent with jihadist interpretations of Islam - and it is to jihadism that you have aligned yourself.
You have also had a series of unsuccessful personal relationships from which there are three children now aged 7, 6 and 2 years - all of whom are in care. You told Dr Ho in the assessment which he conducted in January 2021 that you "…wanted to return home to be a father to [your] kids". But, as I have said, those children are in care. I am not able to say - and neither are you - whether the relevant authorities (whose paramount consideration is the welfare of those children) will allow you custody of, or even access to, those children upon your eventual release.
You have no major mental health illness or intellectual disability. You do, however, suffer from a substance use disorder.
There is no evidence that you have ever had any meaningful employment.
It may be accepted, as Dr Furst considered, that issues concerning your childhood deprivation "…contributed to the social context of [your] criminal lifestyle, incarceration, conversion to Islam at Bathurst Correctional Centre in 2010, and ultimately [your] radicalisation towards an extremist ideology, that being the context of [your] offending".
However, there is no sworn evidence that you have resiled from your extremist views. You have not expressed on oath any meaningful remorse for your offending. Second hand expressions are of little weight in the circumstances of your offending. I am therefore not satisfied of either of these matters, in your favour, on the balance of probabilities.
In all the circumstances, I consider that you are at a high risk of re-offending: both generally and for this specific type of offending.
The dominant sentencing purposes for terrorism offences are: the protection of the community; general and specific deterrence; and retribution.
Considerations of rehabilitation and the personal circumstances of the offender are of considerably reduced weight and significance.
The authorities make it clear that, for offences of this kind, substantial and condign sentences are required. In R v Lodhi [2006] NSWSC 691 at [91ff], Whealy J said:
"91. The need for substantial sentences to reflect the principles of general deterrence are obvious in relation to crimes of this kind. Such crimes are hard to detect; they are likely to be committed by members of our own community and often by persons of prior good character and favourable background. One has only to consider the tragedy of the London bombings in 2005 to recognise this observation as a sad truism. Moreover, terrorism is an increasing evil in our world and a country like Australia, with its very openness and trusting nature, is likely to fall easy prey to the horrors of terrorist activities.
92. In those circumstances, the obligation of the Court is to denounce terrorism and voice its stern disapproval of activities such as those contemplated by the offender here. It may be argued that the imposition of stern penalties, in the context of firm denunciatory statements, will not in fact deter those whose religious and political ideologies are extreme and fanatical. But a stand must be taken. The community is owed this protection even if the obstinacy and madness of extreme views may mean that the protection is a fragile or uncertain one. In my view, the courts must speak firmly and with conviction in matters of this kind. This does not of course mean that general sentencing principles are undervalued or that matters favourable to an offender are to be overlooked. It does mean, however, that in offences of this kind, as I have said, the principles of denunciation and deterrence are to be play a substantial role. There is also a need to recognise that the imposition of a substantial sentence may have a personal impact as a deterrent on this offender so that upon his release he will, it is cautiously hoped, be unlikely or less likely to re-offend. In addition to general deterrence, the need to deter this man from future offences is a potent factor in the sentencing process".
I note that the sentence imposed by his Honour, and his Honour's observations, were approved on appeal in the Court of Criminal Appeal (see Faheem Khalid Lodhi v R [2007] NSWCCA 360).
The force and relevance of Whealy J's remarks have not diminished with the passage of time.
When the superior Courts have mandated that, for offences of this kind, substantial and condign sentences are required, those Courts have, of course, taken into account the onerous conditions attending upon such sentences. A significant quantity of material was placed before me on your behalf setting out the onerous conditions which you have already experienced whilst being on remand and which you will continue to experience in serving the sentence I shall impose today. In this context, it is, again, helpful to refer to the judgment in R v Lodhi at first instance. At [88], Whealy J said:
"88. In my view, the Court is entitled to make some allowance in the sentencing process for the conditions of imprisonment, which will be imposed on the offender here… However, I do not consider that the allowance should be in any sense a substantial one, or even one that can or should be mathematically calculated".
In my view, the only appropriate sentence is a lengthy sentence of full-time imprisonment.
The date of the sentence will be backdated to the date of your arrest, 24 December 2021.
You entered an early plea of guilty and there will be a reduction in the sentence of 25 per cent for the utilitarian value of the plea.
Daniel Greenfield, for the offence of intentionally collecting documents that were connected with assistance in a terrorist act, knowing of the connection of the documents to assistance in a terrorist act, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 6 years 9 months. After the discount of 25 per cent, the term of imprisonment is 5 years. I fix a non-parole period of 3 years 9 months to date from 24 December 2021. You will, therefore, be eligible for parole on 23 September 2025.
I fix a balance of 1 year 3 months to date from 24 September 2025 and which will expire on 23 December 2026
[2]
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Decision last updated: 17 November 2023