R v Hatahet

[2022] NSWDC 765

District Court of NSW|2022-10-07

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At a glance

Source facts

Court

District Court of NSW

Decision date

2022-10-07

Source

Original judgment source is linked above.

Judgment (75 paragraphs)

[1]

Solicitors: Ms Hedberg (the offender) Mr Maxwell-Cullen (the Crown) File Number(s): 2020/00123568

[2]

Introduction

On 25 April 2020, the offender, Fayez Ahmed Hatahet was arrested and charged with an offence against s 6(1)(b) of the Crimes (Foreign Incursions and Recruitment Act) 1978 (Cth) ("the Act") that he, between 25 September 2012 and 13 December 2012, did engage in a hostile activity in a foreign state, namely Syria.
The maximum penalty for this offence is 20 years imprisonment.
The offender pleaded guilty in the Local Court on 26 May 2021 and was committed for sentence to this Court. On 7 October 2022 the offender adhered to his guilty plea before me.
At the sentence hearing the Crown tendered a bundle of material containing the following: 1. The indictment; 2. The agreed statement of facts (The Agreed Facts); 3. The offender's criminal history; and 4. The offender's custodial history.
The Crown, at the request of the defence, also tendered: 1. A statement by Rodger Shanahan, an expert in Middle Eastern Studies; and 2. A recorded conversation between a Federal Agent and the offender in Türkiye on 19 September 2013.
At the sentence hearing the offender gave evidence. The offender also tendered a bundle of material containing the following: 1. A letter by the offender dated 4 October 2022; 2. An affidavit of Mrs Hatahet (the offender's wife) dated 5 October 2022 attaching records relating to family medical issues and family difficulties; and 3. An affidavit of Sarah Hedberg (the offender's solicitor) dated 5 October 2022 attaching records relating to the offender's custodial history and circumstances.

[45]

The letter

The offender wrote a letter to the court. In that letter the offender sought to provide insight into his offending and how he views his offending today.
He said that he is close to his family, who are Sunni Muslims but are not that religious. Growing up, his family regularly travelled to Damascus, Syria as his family is originally from there and he has relatives who live there. His wife's family lived in Syria until 2011 when the Syrian people took to the streets to peacefully protest against President Bashar al-Assad.
Al-Assad launched a brutal campaign against his people and gunned down many unarmed protestors. The offender wrote "what followed was a relentless assault of barrel bombs and gunfire which took the lives of over 600,000 men, women and children." He said, "the use of chemical weapons was deployed throughout these attacks by al-Assad resulting in the death of hundreds." As a result of the war, some of his wife's close family fled Syria for Jordan.
However, his wife's 18-year-old brother remained in Syria. He was a soldier in the Syrian army under al-Assad. Military service is compulsory in Syria, so he had no choice but to serve. In 2012, he fled his post after refusing to shoot unarmed civilians. As a result, he was captured and was held somewhere in Aleppo, Syria. The offender was given this information by his father and wife's brother. The offender wrote, "Having been raised in the Middle East, family plays a very important role in our lives." Seeing the distress this caused to his wife and her family meant he was eager to secure his brother-in-law's release by offering money as ransom.
The offender said that in 2012, he went to Jordan to visit his family and father, who had cancer. The offender was informed of the potential whereabouts of his wife's brother by his father-in-law. The offender made his way to Aleppo which was controlled by the Free Syrian Army ("FSA") at the time. He met with them and asked for their help. He said they would allow him to stay. However, if the city was attacked, he said he would be required to assist them in defending it, and also, they instructed him to purchase a weapon as it was up to him to defend himself. The offender bought a weapon off people in the FSA. The offender wrote it is normal for people in the Middle East to have firearms. The offender did not think this was ideal but agreed because he thought he would be able to find his brother-in-law quickly and leave before any real fighting could take place.
The offender was unable to find his brother-in-law during the three weeks he remained in Syria. He said he stayed with the FSA while in Syria, who he emphasised are not a designated terrorist organisation. He admitted helping carry weapons and removing debris from collapsed buildings. He said, "the most important thing to mention is that in one way or another I did aid in fighting al-Assad." However, he said at the time he entered Syria his intention was not to fight but to help find his brother-in-law.
The offender wrote that had he known it was illegal to do these things he would not have done them.
In 2013 the offender again travelled to Jordan to visit his father who was still sick. While in Jordan, his wife's family received information in relation to his brother-in-law. The offender travelled from Jordan to Türkiye via Cyprus. When he arrived in Türkiye, he travelled by taxi into Syria where he met a contact. He was kidnapped and later told that the contact was killed. In his letter the offender said he was tortured and forced to film a video asking his family to pay a ransom for his release. He remained in captivity for approximately 20 days at which point he was driven to the border in exchange for money.
Upon his return to Australia, he found it difficult to adjust to normal life and to return to work. He suffered from depression and anxiety and after seeing a psychologist, began taking anti-depressants. In 2015 his father passed away which was difficult for him. He said his family also faced financial hardship as a result of the ransom they had paid for his release.
The offender wrote "I wish I had not done" - referring to his offending - "as it was illegal and in hindsight, I should have contacted a lawyer before going and asked whether or not it was acceptable to go." He said he is grateful to live and raise his children in a free society like Australia. He wrote that he wishes to close this chapter of his life, go back to work and return home to his wife and children.

[48]

Motivation for his incursion into Syria

The offender gave evidence that half of the offender's family lives in Damascus, Syria and half has remained in Jordan. While his wife was born and raised in Syria, his wife's family subsequently relocated to Jordan as refugees. This involved crossing the border between Damascus, Syria and Jordan.
His wife's brother undertook mandatory service in the Syrian Army after finishing high school. However, the regime was brutal. His brother-in-law was ordered to shoot innocent people but refused to do so. He said because of this, he was captured, imprisoned and tortured in Syria for approximately one and a half years.
On 25 September 2012, the offender departed Sydney, Australia to Jordan. His intention when he departed was to visit his father who had cancer and was in his final stages of life. When asked whether he also intended to travel to Syria when he departed Australia, the offender responded, "not at all."
While the offender was in Jordan, he gave evidence that his father-in-law received a call from his brother disclosing information about the possible whereabouts of the offender's brother-in-law who had been captured. The offender began to discuss ways to help find his brother-in-law, with his father-in-law.
According to the offender, his father-in-law asked him to travel to Syria. His father-in-law and other members of his wife's family were living in Jordan under refugee law. He said if they left Jordan, they would not be able to come back due to their refugee status. The offender, on the other hand, held an Australian passport which made him the only one capable of undertaking the travel required to enter the relevant area of Syria to locate his brother-in-law. The offender also said that he had the means to do so.
Accordingly, the offender made the decision to travel to Syria to look for his brother-in-law. He gave evidence that he would not have entered Syria had his brother-in-law not gone missing.
The offender said he travelled to the border area of Aleppo, Syria, which is controlled by the Free Syrian Army. This involved flying from Jordan to Istanbul, Türkiye, taking a flight to Antakya and then crossing the border by way of taxi to the border area of Aleppo, Syria. Video 15 shows the offender travelling in a vehicle near a town called Al-Dana which is approximately 50 km west of Aleppo and about halfway between Aleppo and the Turkish border with Syria. The offender said he travelled to this area in Syria to meet a contact, named Mohammad, who was a member of the Free Syrian Army. The offender gave evidence that he had not been to that area before, which is controlled by the FSA, and Mohammad was to guide him around. The offender stayed in an FSA compound in the area.
The offender said that he remained in Syria for a maximum of three weeks, after which he went back to Jordan and stayed there for 3-4 weeks before flying back to Australia. The offender gave evidence that he left Syria because he lost hope of finding his brother-in-law and things became more dangerous for him. He said, "I'm going to start getting involved with something, I'm not about to, and there's nothing for me there to help even, I'm not expert, I'm not a fighter."
The offender said that when he went to Syria, he did not think he was harming Australia in any way and did not want to harm Australia. He said "if today, they" - meaning Australia - "need me here, I'm ready to give my blood for it. This is my homeland…if anyone tried to harm Australia, this is against our belief, we have to defend it to death."

[50]

The Videos

The offender gave evidence that he received many videos, which he kept to remember his time in Syria. He said he deleted some of the videos he received. When the offender was asked why he sent these videos to himself by way of email, he said: "This is something happening in my homeland, and I liked to document all these things for me, or for the future like the next generation… this is normal for us and to keep these things is to remind us…what's happening to our family there, to our land being destroyed." He said that he is in the videos where he is depicted, and not those videos where he is not. He said he did not take the videos.
Under cross-examination the offender said "I don't really remember if I watched them…I keep them, yeah, but I wasn't looking at them every night or every day, I, I just regarded them. I even forgotten…some of them were there."
On 22 October 2012, approximately one month after the offender travelled to Jordan, he sent himself an email attaching Video 1. The offender was asked whether he was in Syria at the time he sent that video to himself. He said "firstly, I can't send Syria any video because there's no internet. There's no electricity even. There's no water." The offender was also asked whether the voice heard in the video saying the words "Abu Al Baraa sniping the Alawites" was his. The offender said, "I didn't say - I wasn't there." He was asked whether he took the video. He said, "No I didn't take it" and gave evidence that he was not present in the room with the man in the video who was holding or firing a rifle out of a window.
Under cross-examination the offender was asked why it was important for him to send this video to himself. The offender said "it's not important for me, no. But I'm like for memory…I'll keep it, I don't care about it like it just doesn't bother me."
On 9 November 2012, the offender sent himself Video 2 which the offender confirmed during evidence-in-chief depicts himself (Abu Musaab) wearing a camouflaged vest and moving an anti-tank weapons system (B9). He said this was at the compound where they were staying and that he helped them to put it in their cars. He was asked whether he understood at the time that it was a weapon that would be used in fighting. The offender said "I don't know…I just carry and that's it. I never even went to training and army training…after high school." Under cross-examination the offender agreed that he showed off next to the tank when he first arrived in Syria.
In Video 2, the offender agreed he is depicted making the "Tawhid gesture" which involved the offender raising his right index finger. The offender explained that the Tawhid gesture is what Sunni Muslims do every day, five times a day, as a prayer movement. He said it means "God is one" and that it "is about our faith." He was asked whether there was a particular reason he made the gesture at the time he carried the weapon. He said, "I'm saying 'Al-Nur Allah'… meaning God will help us to defeat the dictator… to me it mean Allah watching this gestures, and justice happening to my people."
The offender also sent himself Video 3 that same day and later that day, the offender sent this video to his brother's email account. The offender gave evidence that he did not film the video himself. He said that one of the soldiers in the FSA had many videos and the offender asked him "send me all what you have, yeah?" The soldier sent them to the offender. The offender was asked why he sent Video 3 in particular to himself and to his brother by email. The offender said "I don't know that video, like who is Abu Musaab? I didn't even take that video. Why should I take that video?" When pressed as to why he sent the video to his brother, the offender said "I thought my email maybe is not really on because I never used it. Like…I didn't read it much, so I thought I send it to my brother and myself or I asked him to keep it and send it to me…in case I lose it in my one, I still have it in his one."
When questioned about Video 9 which shows the offender walking up to a wall in the compound and firing a weapon, the offender said "I wish I never done it, but when I bought that…the AK-47, as every man…everyone loves to try that. I never tried it before so I want to fire it. Like, I told the guy, 'can you take video of me firing? Just for show off.'" The offender was asked whether he knew who was on the other side of the wall. The offender said "no-one. Did you hear anyone fire back?" The offender was asked whether there was anyone he was trying to shoot at in particular. The offender said "nothing…just I'm trying to learn how to use it over the wall, that's it." He said he asked someone to take a video of him firing the weapon to remember himself holding the weapon.
Under cross-examination it was put to the offender that he had no idea how far the bullet was going to go. The offender said "the whole city was, half of the city empty. The next wall was 20m away." The offender said, "we looked before, we looked before taking that video, over the wall." It was put to the offender that he did not have good control over the direction the bullet was going to go because of the way he fired the gun. The offender said, "not really." It was put to the offender that it was a wildly reckless thing to do. The offender said "yeah it is, yeah, yeah. I regret that now."
The offender was asked whether he ever fired a weapon at another person whilst in Syria. The offender said, "never ever." The offender said that while he was in Syria he never injured or harmed another person in the course of war or battle.
The offender was asked whether he took Video 7 titled "bombing" and he said "no." He was asked whether he is the person in the video saying the words "Allah is the greatest. Bombings target the headquarters of Ahrar Al-Sham, Allah is the Greatest". The offender said "no." The offender said that he had the video because "even back then, the start of the revolution, everyone wants to keep video of destruction and what's happening in the ground to let the world know what's happening, the genocide committed by the regime against the ‑ its own people."

[51]

The Syrian government

When questioned whether he entered Syria because he wanted to overthrow the Assad regime, he said "no, not at all." He said, "it wasn't at all to join any or fight or carry a weapon…the only reason I just tried to help my brother-in-law, that's it." The offender gave evidence that most fighters cross into Syria from the north of Jordan. He said that from where his family resides in Jordan, it would have taken him just one hour to be inside Syria and cost only $200. However, the offender flew into Türkiye and then to Antakya to cross the border, which involved "risk," spending a lot of money and leaving his family. He said, the reason he travelled so far north is because the area he travelled to is primarily controlled by the FSA, whom he associated with to find his brother-in-law.
However, the offender also gave evidence that he is "against the Assad regime" because he is "for democracy" and wants the "people to get their right for freedom" and does not deny that he is against the regime. Under cross-examination it was put to the offender that he hates Bashar al-Assad. The offender said, "who loves him?" and "yeah, I hate him…I was clear from the first minute…I am against any dictatorship in the world." It was also put to the accused that he hates the government of Syria. He said "yes."
The offender was asked who he understood the Alawites to be, referring to Video 1, in evidence and said, "the regime supporters" whom he said are the supporters of Bashar "al-Assad…the dictator."
The offender said he was willing to show the FSA support for two reasons. Importantly, he gave evidence that his "number one" reason was to "support them to get their freedom" meaning to support the FSA to secure the liberties of the Syrian people, whom the offender opined were living under brutal dictatorship. His second reason was to get the help of the FSA to find his brother-in-law.
I note that in Dr Shanahan's expert statement he described the FSA goal was to overthrow the regime of Bashar al-Assad by force and replace it with a new Syrian Government.
The offender accepted that he is depicted in Video 8 (titled "Bombing two"). The offender also accepted that he can be seen saying "I swear, we will get your head O Bashar, Allah willing". The offender was asked why he said those words. He said "because…from the vicious way of seeing - of killing innocent people…because I hate him. And he also got my brother-in-law and torturing them, torturing him. He killed cousins of mine. He destroyed my family and all buildings."
The offender was directly asked whether he was in Syria because he hates Bashar al-Assad. He said "not. If I wanted to go there and fight, I'll stay there. Why should I leave after three weeks to come back here?"

[52]

Any religious motivation and the Nasheeds

Under cross-examination the offender was asked whether his involvement in the Syrian war had a religious purpose. He said, "not really…I'm taking the freedom and the safety for my own people, and I hate the dictator." He was also asked whether there was a religious aspect to the civil war. The offender said, "nothing at all." The offender said, "I am Muslim Sunni." And was asked whether his religion formed part of the reason he was in Syria at the time. He said: "not at all. We don't see it that way, because it's, it's nothing - there's no motivation, like, there's no religious motivation. It's just human motivation towards my wife, towards my family, that's, that's it, like, how every, every, every man, you know, in every humankind will do the same in my position."
The offender gave evidence that in order to associate with the FSA one is not required to be a member of a particular faith or sect. He said, "anyone can join…even non-Arabs."
The offender was asked whether the group he spent time with was primarily comprised of Sunni Muslim men. The offender said, "when you talking about Sunnis in Syria, that means 95% of the population." He said, "there's some Christian, there's some Alawites in the Free Syria Army, there's some Sunnis, there's some Shiite…it's a mix."
It was put to the offender that he wore a headband with a Shahada flag on it (Video 15). The offender said, "not Shahada flag, it's Allah Akbar" meaning "Allah is great. And that's what we believe, that's my belief." It was put to the offender that it is a statement of creed. The offender said, "I'm not denying, I am a western Sunni." It was put to the offender that white writing on black is distinctively Sunni. The offender said, "The flag, your Honour, it's a black flag, it's saying there's no God except Allah, that's our belief." The offender said "if there is our organisation name, that means this is organisation" but the flag in the photo did not have a name for any organisation.
The offender was asked whether Alawites are a race with a distinctive religion. The offender said, "it's not a religion, it's a race…I'm not against the race." He said "they" - meaning some Alawites - "are also against the regime…because the regime has committed genocide." Under cross-examination it was put to the offender that he liked having a video showing somebody sniping the Alawites. The offender said, "not really I don't like anyone to be harmed".
The offender was asked about some of the videos which contained men singing Naheeds and whether Naheeds are religious songs. The offender said "it's not religious. It's a song."
Under cross-examination, the offender was asked about the lyrics of the Nasheed contained in [15] of the Crown Statement of Facts. The offender was asked whether they are in-part religious. The offender said, "I'm not a scholar to tell you this is religious or note." It was put to the offender "there's an indication of the creator. There's a reference to virgins in paradise. There's a reference to Jihad… Come on oh Muslim get up…". The offender said "you know…they're singing about the paradise, Gangsta's Paradise. Is that religious or gangster." The offender repeated he is not a scholar. The offender was then asked why he would not answer these straightforward questions. The offender said "sorry" and then that he could not hear the Crown prosecutor. It was put to the offender that he was being deliberately obtuse. The offender said "no, no the problem is I can't hear you properly, that's all." The questions were not pressed.
It was put to the offender that the Nasheed in [18] of the Crown Statement of Facts is a song that combines religious ideas with wishing death on the president of Syria. The offender said, "yeah on al-Bashar yeah."
The offender gave evidence that he did not film these videos containing Naheeds, that the soldier from the FSA provided him with them and that he sent them to himself because he wanted to have these videos as memories. Under re-examination the offender said that he did not think about the lyrics in the Naheeds.

[54]

Other evidence

The offender gave evidence that the experience of being captured and tortured affected him mentally in many ways. He also said that he incurred a debt because of the ransom, and he paid back around $40,000. He also said he could not continue working as a truck driver when he returned due to his nerves being damaged. He had psychological counselling for two years after he returned but said that the counselling did not really help because his family needed money and they needed help mentally and physically. He said he couldn't cope with this and soon after his father died.
The offender said that in 2019 he committed various forms of credit card fraud in order to pay back his debt and he began associating with "the wrong people".
The offender gave evidence that he has no intention of returning to Syria.
He also gave evidence concerning his time in custody. He said that following his arrest he has not been able to see his children face to face. For the first four months he was not able to have contact with his wife. He also said when speaking to his wife he had to speak in English and was not allowed to speak in Arabic and his wife does not speak English well. The offender also said that his wife contracted the coronavirus and was hospitalised, and his children were left without someone to care for them.
The offender said that following his arrest he was transferred to the High-Risk Correctional Centre ("Super Max") at Goulburn. For the first six months he was not able to mix with any other prisoners. After six months he was able to associate with others one and half hours a day for two days every two weeks and three hours every fortnight. The offender also described his cell as a very tiny cell with no windows and as being 3 metres x 1 metre with a yard being 2 metres x 1 metre.
The offender said that it was only in the last six to eight months that his conditions have improved, and he is able to undertake programs and can be out of his cell for two hours a day and mix with two people. He also said he had over 186 days lockdown due to staff shortages and the coronavirus. He said the conditions have affected his health and that he has high blood pressure and diabetes.

[58]

Crimes (Foreign Incursions and Recruitment) Act

In R v Biber [2018] NSWSC at [88]-[97] Adamson J considered the background and purposes of the Act and also sections 6 and 7. Her Honour said at [88]-[97]: "The Act was passed in 1978 by the Commonwealth Parliament in response to a series of resolutions of the United Nations General Assembly which called on nation States to stop foreign fighters and those who provide assistance to them. The legislation was originally concerned with preventing anti-government forces, but was amended in 1987 to criminalise foreign fighters and assistance given to them, irrespective of the group with which they intended to associate. These resolutions expressed the collective intention of nation States to reserve to themselves the right to wage war (through their own armed forces), which, since 1945, had been subject to the Charter of the United Nations and resolutions made by the Security Council in accordance with it. Section 6 of the Act, which created the offence for which Mr Biber stands to be sentenced, made it an offence to enter a foreign State for the purpose of engaging in armed hostilities. Section 7 of the Act made it an offence to perform services for someone with the intention of that person entering a foreign State for that purpose. The purpose of ss 6 and 7 of the Act is to deter and prevent foreign fighters from engaging in armed hostilities in foreign States and to punish those who go, as well as those who assist them. The legislative history of s 6, as referred to above, is important to an identification of legislative purpose in the context of the present case. Section 6(3)(aa) was inserted into the Act by the Crimes Legislation Amendment Act 1987 (Cth) (the 1987 Amending Act). Its effect was to include, in the definition of engaging in a hostile activity (for the purposes of offences against s 6(1)), doing an act (relevantly, entering a foreign State) with the intention of achieving the objective of engaging in armed hostilities in the foreign State. In the Second Reading Speech (Commonwealth of Australia Parliamentary Debates, Senate (Hansard) 5 November 1987), at p.1756, Senator Tate explained the purpose of the amendments in the following terms: 'The underlying purpose of the Crimes (Foreign Incursions and Recruitment) Act 1978 is to prevent persons from Australia becoming involved in hostile activity in overseas countries. The purpose of the amendments is to remedy a number of deficiencies in the Act. One such deficiency is that mercenary acts as such are not proscribed unless they involve acts done for specific purposes, those purposes generally relating to acts directed against the government of a foreign country. . . . In addition, two new offences have been created - prohibiting persons from Australia from engaging in armed hostilities outside Australia and prohibiting the use of a vessel or aircraft in preparations for an incursion into an overseas country. . . .' I understand the reference to "mercenary acts as such" in the Second Reading Speech to the 1987 Amending Act to be a reference to s 6(3)(aa), which proscribes "engaging in hostilities in the foreign State". The 1987 Amending Act also removed the reference to "foreign country" and substituted "foreign State" and redefined "government" to mean the authority exercising effective control, rather than, as previously, the government that Australia had recognised as the lawful government. This legislative history shows, in my view, that the intention of the Act, as amended in 1987 was, not only to criminalise entry into a foreign State for the purposes of engaging in armed hostilities, but also to make irrelevant any judgment about the merits of any armed conflict in a foreign State. In other words, the amendments made by the 1987 Amending Act made clear, in my view, that the criminality of such conduct was not ameliorated if the putative foreign fighter was fighting against a regime that was regarded, for example, as inimical to Australia's foreign interests or in breach of international law by reason of its conduct towards those living within its borders: R v Alqudsi [2016] NSWSC 1227 at [6] and [92]. Wars are typically fought by young men who, it may be assumed, believe themselves to be engaged in a "noble cause", whichever side they are on. History shows the susceptibility of young men to the idea that they will become heroes and that their lives will matter if they go and fight in a war, whether in a nation State's military force or a rebel group, and that accompanying other men into battle is the ultimate act of loyalty, friendship and sacrifice for which they will be forever remembered. Before the enactment of the Act, participating in a foreign war other than as part of the military forces of a nation State was not illegal under Australian law. Indeed, participation in certain historical conflicts was, at times, regarded as laudable where the foreign government sought to be overthrown was regarded as tyrannical. The Act criminalised this conduct. It made entry into a foreign State with the intention of engaging in armed hostilities, other than as part of a recognised national military force, a criminal offence, the seriousness of which is indicated by the maximum penalty of 20 years imprisonment. In R v Mohammed [2016] VSC 581, Lasry J said of the provisions, which included ss 6 and 7 of the Act: '[4] . . . [T]he clear purpose of the provisions . . . was to ensure that Australia discharged its international obligation to make criminal the activities of . . . [those] who proposed to engage in hostile activities in a foreign state and/or assist foreign fighters to do so. That purpose in itself demonstrates the seriousness of [the] conduct. Like contemporary terrorism offences, the . . . Act made criminal not only the specific act of engaging in hostile activities in a foreign state but, separately, acts which are performed in preparation with that intention.' The difference between the maximum penalty for an offence under s 6 of the Act (20 years) and an offence under s 7 (10 years) indicates that Parliament regards offences against s 6 as, generally, more serious than offences under s 7. Parliament has, by providing for a maximum penalty of 20 years for an offence under s 6 indicated the seriousness with which it regards conduct falling within that section. The maximum penalty is to be reserved for the worst category of cases: Veen v The Queen (No. 2) (1988) 164 CLR 465 at 478. I note that an offence under s 6(1)(a) (entering a foreign State with intent to engage in a hostile activity) carries the same maximum penalty as an offence under s 6(1)(b) (actually engaging in a hostile activity)."

[60]

Factual issues in dispute & the assessment of objective seriousness

Important factual issues in dispute at the sentencing hearing were the offender's reasons and motivations for his incursion into Syria in 2012, and also the nature of the hostile activities that he engaged in.
As the sentencing judge, I may not take facts into account, other than the Agreed Facts, in a way that is adverse to the interests of the offender unless those facts have been established beyond reasonable doubt.
However, if there are circumstances which I take into account in favour of the offender, it is sufficient that they be proved on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ.
There are other matters which can be taken into account in sentencing, or which form part of the narrative, which do not fall into either category: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14; at [19]-[24].
The assessment of the objective seriousness of this offence involves an assessment of the actual conduct, which constituted the offender engaging in armed hostilities. It is therefore also necessary to determine the extent to which the offender engaged in hostile activities and what those activities were: R v Biber [2018] NSWCCA 271 at [25].
The Crown accepted that it was not in a position to gainsay the evidence from the offender, that is that he went to Syria looking for his brother-in-law, and the Crown accepted that I would find that was part of what he was doing. However, the Crown further submitted that the evidence also showed that having found himself in Syria he was clearly an enthusiastic participant and happy to support the fight against the Syrian government.
The Crown also submitted that it is difficult to separate the offender's apparent political support from the religious context of his actions. The Crown submitted that I should additionally find that there was a religious motivation to the offender's activities.
The offender gave evidence before me (as summarised). I am able to accept some of what he said but not all of it. Although the offender often answered questions directly, without seeking to obscure his conduct or views, he was also a difficult and argumentative witness. This does not assist him. At times I had to ask him to answer questions, not to ask his own questions or make pronouncements. The offender repeatedly stressed that he would not have gone to Syria but for his brother-in-law but then also made very clear his hatred for the Assad government and the righteousness of his participation in the fight against the Syrian regime.
I am satisfied that the offender went to Syria for the purpose of looking for his brother-in-law. However, once there it is clear from the videos, photos, and his own evidence that he was an enthusiastic participant and supporter of the goals of the FSA. The goals of the FSA were to overthrow the regime of Bashar al-Assad by force and replace it with a new Syrian Government.
In relation to any religious motivation, Mr Evers submitted that I should be cautious when considering whether there was any religious motivation on the part of the offender, as there is nothing to support a finding that any religious aspect was connected to extremism or that this brought about some invocation by the offender of violence generally. I accept this submission and I am not satisfied beyond reasonable doubt that any religious view held by the offender played a relevant part in his conduct.
The Crown contended in the facts that there were a number of occasions where the offender's voice could be heard on the videos and as a consequence, I could find his role included his participation in those videos. However, Mr Williams, counsel for the Crown, in oral argument, accepted that there was no evidence to corroborate or support this contention.
The offender denied it was his voice and gave evidence that these videos were provided to him. He said that he was only present in those videos and photos in which he could be seen.
Having considered the evidence, I am not able to be satisfied that this is the offender's voice, and his activities will be assessed by those that are agreed to or admitted by him.

R v Hatahet

At a glance

Court

Decision date

Source

Judgment (75 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (16)