R v Hraichie - [2019] NSWSC 973 - NSWSC 2019 case summary — Zoe

NSWNSWSC

R v Hraichie

[2019] NSWSC 973

Supreme Court of NSW|2019-03-25|Before: Johnson J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-03-25

Before

Johnson J

Catchwords

[2012] NSWCCA 203 BP v R (2010) 201 A Crim R 379
[2010] NSWCCA 159 CMB v Attorney General for the State of NSW (2015) 256 CLR 346
[2015] HCA 9 Dasreef Pty Limited v Hawchar (2011) 243 CLR 588 at 605
[2011] HCA 21 Director of Public Prosecutions (Cth) v Besim [2017] VSCA 158 Director of Public Prosecutions (Cth) v Besim (No. 3) (2017) 52 VR 303

Source

Original judgment source is linked above.

Catchwords

[2012] NSWCCA 203 BP v R (2010) 201 A Crim R 379[2010] NSWCCA 159 CMB v Attorney General for the State of NSW (2015) 256 CLR 346[2015] HCA 9 Dasreef Pty Limited v Hawchar (2011) 243 CLR 588 at 605[2011] HCA 21 Director of Public Prosecutions (Cth) v Besim [2017] VSCA 158 Director of Public Prosecutions (Cth) v Besim (No. 3) (2017) 52 VR 303[2017] VSCA 180 Director of Public Prosecutions (Cth) v De La Rosa (2010 79 NSWLR 1[2010] NSWCCA 194 Douar v R (2005) 159 A Crim R 154[2005] NSWCCA 455 DPP (Cth) v Fattal [2013] VSCA 276 DPP (Cth) v MHK (a pseudonym) (No 1) (2017) 52 VR 272[2018] NSWSC 221 R v Atai (No. 2) [2018] NSWSC 1797 R v Bell [2005] NSWCCA 81 R v Borkowski (2009) 195 A Crim R 1[2006] NSWCCA 381 R v Mohamed and Others [2019] VSC 498 R v Shoma [2019] VSC 367 R v Simpson (2001) 53 NSWLR 704 at 718[2001] NSWCCA 534 R v Windle [2012] NSWCCA 222 Ryan v The Queen (2001) 206 CLR 267[2001] HCA 21 Shine v R (2016) 260 A Crim R 534[2016] NSWCCA 149 Tepania v R [2018] NSWCCA 247 The Queen v De Simoni (1981) 147 CLR 383[1981] HCA 31 Thomas v Mowbray (2007) 233 CLR 307 at 338

Judgment (27 paragraphs)

[1]

DPP (Cth) v Fattal [2013] VSCA 276 DPP (Cth) v MHK (a pseudonym) (No 1) (2017) 52 VR 272; [2017] VSCA 157 Hitchcock v R [2016] NSWCCA 226 Johnston v R [2017] NSWCCA 53 R v Abbas [2018] VSC 553 R v Al-Kutobi and Kiad [2016] NSWSC 1760 R v Alou (No. 4) (2018) 330 FLR 402; [2018] NSWSC 221 R v Atai (No. 2) [2018] NSWSC 1797 R v Bell [2005] NSWCCA 81 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v Dodd (1991) 57 A Crim R 349 R v Ellis (1986) 6 NSWLR 603 R v Hraichie (No. 2) [2019] NSWSC 765 R v Jeremiah [2016] NSWCCA 241 R v Khaja (No 5) [2018] NSWSC 238 R v Khalid [2017] NSWSC 1365 R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Mohamed and Others [2019] VSC 498 R v Shoma [2019] VSC 367 R v Simpson (2001) 53 NSWLR 704 at 718; [2001] NSWCCA 534 R v Windle [2012] NSWCCA 222 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 Shine v R (2016) 260 A Crim R 534; [2016] NSWCCA 149 Tepania v R [2018] NSWCCA 247 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Thomas v Mowbray (2007) 233 CLR 307 at 338; [2007] HCA 33 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 ZA v R (2017) 267 A Crim 105; [2017] NSWCCA 132 Texts Cited: --- Category: Sentence Parties: Regina (Crown) Bourhan Hraichie (Offender) Representation: Counsel: Ms S Callan; Ms D New (Commonwealth Crown) Mr LJ Carr SC (State Crown) Ms GA Bashir SC; Ms G Huxley (Offender) (25 March 2019 and 26 March 2019) Mr B Hraichie (in person - 21 June 2019)

[2]

Solicitors: Commonwealth Director of Public Prosecutions (Commonwealth Crown) NSW Director of Public Prosecutions (State Crown) Lawyers Corp Pty Limited (Offender) (25 March 2019 and 26 March 2019) File Number(s): 2016/277456 (Commonwealth); 2016/108074 (State) Publication restriction: ---

[3]

REMARKS ON SENTENCE

JOHNSON J: The Offender, Bourhan Hraichie, appears for sentence with respect to a number of serious offences of violence and threatened violence committed both inside and outside New South Wales correctional centres in 2015 and 2016.
Unusually, both the Commonwealth Director of Public Prosecutions ("CDPP") and the New South Wales Director of Public Prosecutions ("NSWDPP") appeared to prosecute offences which involve crimes under Commonwealth and State criminal law. As will be seen, the Offender has committed a disturbing and unusual mix of serious crimes.

[4]

The Offences

On 4 May 2018, the Offender pleaded guilty in the Parramatta Local Court to the following offences prosecuted by the CDPP for which he was committed for sentence to this Court: 1. between about 1 November 2015 and 19 May 2016, committing acts in preparation for or planning terrorist acts, namely attacks on Australian law enforcement officers in support of Islamic State contrary to s.101.6(1) Criminal Code (Cth), an offence punishable by imprisonment for life ("the Acts in Preparation Offence"); 2. between about 1 April 2016 and 20 May 2016, intentionally delivering to an officer of Corrective Services NSW a letter threatening to kill the Commissioner of Corrective Services NSW, knowing the contents of that document, contrary to s.31 Crimes Act 1900 (NSW), an offence punishable by imprisonment for 10 years ("the Threat to Kill Offence").
On 5 October 2018, the Offender pleaded guilty before Fullerton J to the following offences, which were prosecuted by the NSWDPP: 1. on 7 April 2016, at Aldavilla in the State of New South Wales, wounding Michael O'Keefe with intent to murder contrary to s.27 Crimes Act 1900 (NSW), an offence punishable by imprisonment for 25 years with a standard non-parole period of 10 years; 2. on 7 April 2016, at Aldavilla in the State of New South Wales, causing grievous bodily harm to Michael O'Keefe with intent to cause grievous bodily harm contrary to s.33(1)(b) Crimes Act 1900 (NSW), an offence punishable by imprisonment for 25 years with a standard non-parole period of seven years.

[5]

The Sentencing Hearing

The sentencing hearing proceeded before me on 25 and 26 March 2019 at the conclusion of which the Offender was remanded for sentence on 26 April 2019. The Court had received helpful and detailed written submissions on sentence filed on behalf of the CDPP, the NSWDPP and the Offender in advance of the hearing. In addition, helpful oral submissions were made at the sentencing hearing by counsel for the CDPP, the NSWDPP and the Offender.
A separate Agreed Statement of Facts was tendered in each of the CDPP and the NSWDPP matters. There were limited areas where there was a dispute as to relevance concerning certain facts on sentence, an issue to which I will return later in this judgment.
A number of documents were tendered without objection at the sentencing hearing on behalf of the CDPP, the NSWDPP and the Offender. A report of Mr Stephen Woods, psychologist, dated 15 November 2017 was tendered in the Offender's case with objection being taken to parts of that report by both the CDPP and the NSWDPP. I will refer to that report, and make necessary findings with respect to it, later in this judgment.
No witness was called to give oral evidence at the sentencing hearing. The Offender did not give evidence on sentence.

[6]

The Offender Writes a Letter to the Court

On 18 April 2019, the Court was informed by the CDPP that the Offender had written a letter to the Court. The letter had been made available to senior and junior counsel and the solicitor who had represented the Offender at the sentencing hearing. The Court was informed that the Offender's legal representatives could no longer represent him given the contents of the letter and had withdrawn from the matter. This was regrettable as the Offender's legal representatives had assisted the Court and represented the Offender effectively at the sentencing hearing. Their position was understandable however, given the contents of the Offender's letter.
Both the CDPP and the NSWDPP indicated a desire to tender the Offender's letter at a resumed sentencing hearing. The matter was listed for mention on 26 April 2019 when the Offender appeared by audio-visual link. He told the Court that he did not wish to be legally represented and would appear for himself for the balance of the proceedings. The Court gave directions for the service of further evidence and written submissions.
The sentencing hearing resumed on 21 June 2019. In accordance with his wishes, the Offender was unrepresented. Further material, including the Offender's letter, was tendered by the CDPP and the NSWDPP without objection. Supplementary written submissions had been prepared and served by the CDPP and the NSWDPP touching on issues relating to the Offender's letter. Short oral submissions were made on behalf of the CDPP and the NSWDPP and the Offender addressed the Court. At the conclusion of the hearing, the Offender was remanded for sentence today.
I will return to the Offender's letter and issues arising from it later in this judgment.

[7]

Facts of Offences

The following findings of fact are based almost entirely on the Agreed Statements of Facts tendered by the CDPP (Exhibit A, Tab 3) and the NSWDPP (Exhibit B, Tab 2). The factual recital will take a little time given the nature and range of the offences to be considered.

[8]

The Acts in Preparation Offence and the Threat to Kill Offence Prosecuted by the CDPP Introduction and Overview

The Offender is an Australian citizen of Sunni Muslim Lebanese background, born in Sydney on 15 April 1997. The Offender travelled to Lebanon in November 2010 at the age of 13 for a period of about six weeks, but has not otherwise been overseas.
The Offender first came to the attention of police in February 2010 at the age of 12. Between 2011 and 2015, the Offender served periods in juvenile detention and adult prison (after turning 18) on remand and served sentences for larceny, break and enter, robbery and other offences.
On 28 October 2015, the Offender was released on parole, but was arrested on 8 December 2015 for breaching his parole conditions and committing new larceny, break and enter and other offences.
On 16 March 2016, after being sentenced for the new offences, the Offender was transferred to the Mid North Coast Correctional Centre ("MNCCC") at Aldavilla near Kempsey.
In circumstances to be described later in this judgment, on 7 April 2016, the Offender attacked his cellmate, Michael O'Keefe (the offences prosecuted by the NSWDPP).
On 9 April 2016, the Offender was transferred to the High Risk Management Correctional Centre ("HRMCC") at Goulburn.
Whilst at the MNCCC and the HRMCC, the Offender was subjected to searches and his mail was examined, leading to police from the Joint Counter Terrorism Taskforce ("JCTT") seizing a number of documents. These included documents entitled "The Book of Jihad" and "Inshallah after First Operation", as well as a letter to "Kayman Masters" which the Offender had placed in a prison post box and a letter to the Commissioner of Corrective Services NSW which he had handed to a Corrective Services officer.
On 14 September 2016, the Offender was transported to Goulburn Police Station, where he participated in a record of interview under caution with JCTT police, in which he made a number of admissions relating to his conduct and his extremist religious views. The Offender was then charged with the Acts in Preparation Offence and Threat to Kill Offence. Background to Acts in Preparation Offence - the Offender's Association with Other Persons in Juvenile Detention
The Offender demonstrated an increasing interest in radical Islam whilst detained in juvenile detention.

[9]

Facts for Offences Prosecuted by the NSWDPP Arising from the Attack on Mr O'Keefe

Michael O'Keefe was born in December 1975. As at 7 April 2016, he was 40 years of age. He was incarcerated at the MNCCC serving a relatively short sentence and was due for release on 22 September 2016. He was housed in EPod, but on 7 April 2016, was moved to A-Pod due to cell shortages.
As at 7 April 2016, the Offender was in custody at the MNCCC serving the balance of his parole, as well as sentences of imprisonment for break, enter and steal offences. Those sentences commenced on 8 December 2015 and the Offender's earliest date of release was 18 August 2018. He was housed in A-Pod at the MNCCC. The Two Men Share a Cell
Mr O'Keefe and the Offender were designated to share Cell 30 in A-Pod at the MNCCC.
On the afternoon of 7 April 2016, Mr O'Keefe and the Offender met for the first time and had a short conversation. In that time, Mr O'Keefe told the Offender that he had served in the Australian Army between 1992 and 2000, having been based in Townsville whilst enlisted, and at Port Macquarie when in the Army Reserve. He had never served overseas on deployment. Mr O'Keefe states that he told the Offender nothing more than he had been in the Army for eight years. He did not tell him that he had served overseas as that was not the case.
As they were to share Cell 30, the Offender discussed with Mr O'Keefe some cell rules.
About five to 10 minutes after meeting the Offender, Mr O'Keefe left the cell and spoke with other inmates. He perceived everything between himself and the Offender to be "normal". Mr O'Keefe remained outside in the yard, associating with other inmates, until it came time for them to be locked in the cell between 3.10 pm and 3.30 pm.
After lock up, Mr O'Keefe placed his dinner on the end of his bed, which was on the left-hand side of the cell as you enter. The Offender gave Mr O'Keefe his own dinner to eat.
Mr O'Keefe lay on his bed and was ready to "chat and relax". The Offender Attacks Mr O'Keefe
Mr O'Keefe stated he was lying on his bed with his head furthest from the door. Without any prior warning, the Offender began punching him to the face and jaw. Mr O'Keefe lost consciousness and when he came to, the Offender was speaking in a language which he did not recognise. Mr O'Keefe moved in and out of consciousness.

[10]

Objections to Parts of the Statements of Facts

At the March 2019 sentencing hearing, objection was taken on behalf of the Offender on relevance grounds to that part of the CDPP's Statement of Facts which referred to the Offender's associations with others in juvenile detention, including Raban Alou (see [24] to [34] above). Although accepting that the factual matters contained in those paragraphs were accurate, it was submitted that this material was not relevant to sentence.
I was satisfied that this material was relevant as it bore upon aspects of the Offender's behaviour in custody before 2015, at a time when he was developing a strong interest in Islam which extended to extremist beliefs and support for violent jihad. The Offender's association with Raban Alou bore upon this issue.
Objection was taken to parts of the Statements of Facts which referred to the Offender's later offence in custody in 2017. The offence committed by the Offender on 20 June 2017 (involving the setting fire to his cell) was relevant to the Offender's conduct since the commission of the present offences. Of course, the Offender is not to be sentenced again for that offence, for which he has already been sentenced in the District Court. However, the commission of a subsequent offence may be taken into account in assessing the Offender's prospects of rehabilitation: Douar v R (2005) 159 A Crim R 154 at 179; [2005] NSWCCA 455 at [131]. In addition, as will be seen, the Offender's explanation for that offence revealed an ongoing attachment to extremist beliefs.

[11]

Impact of the Offences Upon Mr O'Keefe

Reference was made earlier to the immediate effect upon Mr O'Keefe of the attack carried out by the Offender in the cell at the MNCCC on 7 April 2016. Photographs tendered at the sentencing hearing depict graphically the serious nature of the attack upon Mr O'Keefe and its immediate physical consequences. To describe the attack as being horrific for Mr O'Keefe involves an element of understatement.
Also tendered at the sentencing hearing were photographs of Mr O'Keefe taken on 10 April 2016 and 12 March 2019 indicating areas of scarring which remain on his cheek, forehead, neck and back.
Crime scene photographs taken in the cell on 7 April 2016 reveal that substantial blood loss resulted from the attack.
Also contained within the material tendered by the NSWDPP (Exhibit B, Tab 11) are discharge notes and medical reports prepared concerning the grave physical and mental harm suffered by Mr O'Keefe in the attack carried by the Offender on 7 April 2016.
Unsurprisingly, the report of Dr Christopher Canaris, psychiatrist, dated 13 November 2016 concludes that Mr O'Keefe's presentation is consistent with a diagnosis of post-traumatic stress disorder.
An affidavit of Mr O'Keefe affirmed 12 March 2019 was read at the sentencing hearing. Mr O'Keefe stated that he continues to suffer from scarring to his face, throat, back of neck, chest and back together with chest pain, back pain, discomfort when swallowing and headaches. In relation to the scarring to his forehead, Mr O'Keefe covers it by wearing a hat or a beanie so that people cannot see it. As a result of the assault, Mr O'Keefe stated that he continues to suffer from post-traumatic stress disorder (including flashbacks), anxiety and sleeping difficulties. He does not like being in crowds because of feelings of heightened anxiety and stress. He took medication for a period after the attack, but no longer uses it because of adverse effects which the medication was having upon him.
Although a formal victim impact statement was not placed before the Court on sentence, it is hardly necessary in this case. Self-evidently, the attack upon Mr O'Keefe was ferocious and terrifying with very significant physical and psychological injuries being caused to him which will likely have permanent consequences.

[12]

The Offender's Subjective Circumstances

As noted earlier, the Offender was born on 15 April 1997. He is the eldest child in a family of four. He has a younger brother and two younger sisters.
Tendered in the Offender's case on sentence were references from his mother, Mouna Hraichie, and his father, Ahmad Hraichie, which provided some family history. Also tendered was the psychological report of Mr Woods dated 15 November 2017 to which reference has already been made. From that material, it appears that the Offender left school at about 14 or 15 years of age. Apart from some brief periods, he has never held any form of employment since then. The Offender's Criminal History
The Offender has an extensive criminal history with his first offence committed when he was 13 years of age. Offences of larceny, break and enter a dwelling house with intent and aggravated entry of a dwelling house with intent in company were committed in 2011 and 2012, and were dealt with between July and November 2012 by way of a good behaviour bond and probation in the Children's Court.
The Offender committed further offences of dishonesty of different types in 2012 and 2013, for which bonds were ordered and, in some cases, juvenile detention by way of control orders.
On 2 September 2013, for an offence of robbery whilst armed with an offensive weapon (committed on 22 January 2013), the Offender was sentenced in the Parramatta Children's Court to juvenile detention for six months by way of a control order commencing 28 March 2013.
On 19 June 2013, the Offender was sentenced in the Parramatta Children's Court for several offences of aggravated break and enter and commit serious indictable offence (committed in March 2013) for which juvenile detention by way of a control order for 12 months commencing 19 June 2013 was ordered.
On 18 February 2014, the Offender was sentenced in the Parramatta District Court for an offence of robbery whilst being armed with a dangerous weapon (committed on 27 March 2012), for which a sentence of 18 months' imprisonment was imposed with a non-parole period of six months to date from 19 December 2013.
On 27 July 2015, the Offender appeared before the Parramatta Children's Court for sentence for a range of offences committed when he was 17 years of age including destroying property (five counts), larceny, aggravated break and enter and commit serious indictable offence in company and destroying property by fire, in relation to which juvenile detention by way of control orders was imposed for a period of 18 months with a non-parole period of six months commencing 29 April 2015.

[13]

The Offender's Custodial Conditions Evidence of Senior Assistant Superintendent Poulsen

An affidavit of Senior Assistant Superintendent Geoffrey Poulsen sworn 1 March 2019 was tendered without objection by the CDPP. Senior Assistant Superintendent Poulsen is currently posted to the HRMCC where he has served since October 2015.
Senior Assistant Superintendent Poulsen described the structure and operation of the HRMCC. He described the behavioural management plan under which inmates are managed, which includes a staged progression pathway with a multi-disciplinary approach involving custodial, psychological and welfare support. An inmate's progression takes into consideration the inmate's behaviour whilst in the HRMCC. He described the three behavioural management levels ("BML"), with BML reviews conducted generally on a monthly basis for each inmate.
The documents attached to the affidavit of Senior Assistant Superintendent Poulsen reveal that the Offender had not risen higher than BML 1.2 up to March 2018 but that, on 20 March 2018, he was approved to progress to BML 1.3. The Offender continued to progress during 2018 to BML 2.1 (on 15 May 2018), BML 2.2 (on 12 June 2018), BML 2.3 (on 9 August 2018), BML 3.1 (on 4 October 2018) and BML 3.2 (on 25 December 2018) (Exhibit E).
Senior Assistant Superintendent Poulsen stated that the Offender was, as at 1 March 2019, on BML Level 3.2 which dictated sanctions and privileges which applied to him within the HRMCC.
A further affidavit of Senior Assistant Superintendent Poulsen sworn 29 May 2019 was tendered by the CDPP at the resumed hearing on 21 June 2019 (Exhibit H). That affidavit revealed that the Offender progressed to BML 3.3 on 19 March 2019.
Senior Assistant Superintendent Poulsen described the classification regime under the Crimes (Administration of Sentences) Act 1999 (NSW) and the Crimes (Administration of Sentences) Regulation 2014 (NSW). He stated that inmates convicted of terrorism offences are initially housed in the HRMCC. After a period of time, inmates have the capacity to progress through the classification system. He stated that there are a number of inmates (whose offences are terrorism related) who have progressed out of the HRMCC into other mainstream correctional centres as part of the classification process. He stated that these inmates are assessed for a national security designation, which allows a continued level of monitoring of the inmate's communications with a capacity to allow contact visits and access to funds.

[14]

The Different Offences for Which the Offender is to be Sentenced

As mentioned at the outset of this judgment, this case has a number of unusual features. The Offender is to be sentenced for a terrorism offence as well as a number of serious offences of violence or threatened violence under New South Wales law. Although there is some degree of overlap between the offences, there remain four very serious offences involving different victims and different conduct.
Further, the fact that the offences under ss.27, 31 and 33(1)(b) Crimes Act 1900 (NSW) were each committed by the Offender whilst he was a convicted inmate in a correctional centre means that it will be necessary for the Court to have regard to provisions contained in s.56 Crimes (Sentencing Procedure) Act 1999 (NSW) when considering issues of concurrency and accumulation with respect to sentencing for these offences.
No submission was made that s.56 applied to the sentence to be imposed for the Acts in Preparation Offence contrary to s.101.6(1) Criminal Code (Cth).
Each of the offences under ss.27 and 33(1)(b) Crimes Act 1900 (NSW) carry a standard non-parole period so that it will be necessary to apply the principles in Tepania v R [2018] NSWCCA 247 at [104]-[119] in passing sentence for those offences.
In determining sentence for the s.33(1)(b) offence, it will be necessary to have regard to the principles summarised in AM v R (2012) 225 A Crim R 481 at 489-490; [2012] NSWCCA 203 at [67]-[74]. The extent of the injuries suffered by Mr O'Keefe is an important factor together with the cruel manner in which they were inflicted.
The s.33(1)(b) offence here involved a measure of planning and preparation by the Offender for an attack on a Corrective Services officer, although the Offender determined to attack Mr O'Keefe only shortly after meeting him. The Court should be careful not to double count against the Offender, the planning for a terrorist act which forms part of the Acts in Preparation Offence insofar as it could possibly relate to the s.33(1)(b) offence against Mr O'Keefe.
The s.27 offence involved an intention to kill Mr O'Keefe, an aspect which must be reflected in the sentence to be passed. The gravity of this class of offending has been explained in decisions such as Hitchcock v R [2016] NSWCCA 226 and Shine v R (2016) 260 A Crim R 534; [2016] NSWCCA 149. It is a common feature of s.27 offences that they are committed by offenders with mental health issues. That is not so with the Offender. There is no evidence that he was subject to a mental illness or mental condition which could operate in his favour in the manner identified in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

[15]

Objective Gravity of Offences

I am satisfied that the Acts in Preparation Offence under s.101.6(1) Criminal Code (Cth) is a very serious example of an offence of this class. It involved conduct by the Offender over an extended period of time and in four different stages, whilst he was at large in the community and in custody. It is necessary to keep in mind that the charge is not one of attempting to commit an offence where it would be appropriate to have regard to the extent of preparatory acts which had been undertaken for the purpose of an attempted offence. Rather, an offence of this type is directed to the stifling of the commission of acts by persons preparing to commit a terrorist act. The Offender undertook substantial acts in preparation for the commission of a terrorist act.
It is necessary to keep in mind as well the concept of "terrorist act" under the Criminal Code (Cth). In Thomas v Mowbray (2007) 233 CLR 307 at 338; [2007] HCA 33 at [45], Gummow and Crennan JJ emphasised the distinction between a terrorist act and an offence against the person or property under the general law. Their Honours said: "45 … it is the political, religious or ideological motivation and the intention to intimidate governments or the public (ie elements of the body politic) which distinguishes the acts in question from acts in pursuit of private ends, which come within established offences against the person or property …"
The Offender here sought to achieve these ends by planned attacks upon police officers and Corrective Services officers.
It was submitted for the Offender that the objective gravity of this offence was placed lower on the continuum of offending by reference to its breadth, nature and scope and the number of members of the public who may be potential victims.
Commission of acts in preparation of a terrorist act which would kill police officers or Corrective Services officers is a very grave crime, even where the target group was not said to include random members of the public.
The circumstances of this offence remain especially serious in particular where one takes into account the four different phases over a six-month period, incorporated in what is a rolled-up count. Contrary to a submission made on his behalf, I do not think the Offender is assisted by a comparison between the present case and the facts in other s.101.6(1) cases such as DPP (Cth) v Fattal [2013] VSCA 276; R v Al-Kutobi and Kiad [2016] NSWSC 1760; DPP (Cth) v MHK (a pseudonym) (No 1) (2017) 52 VR 272; [2017] VSCA 157; Director of Public Prosecutions (Cth) v Besim [2017] VSCA 158; R v Khaja (No 5) [2018] NSWSC 238; R v Abbas [2018] VSC 553. Although some of these decisions are useful as comparative sentences, the cases (and the sentences imposed) do not support a conclusion that the s.101.6(1) offence committed by the Offender was anything other than a serious example of offending of this type.

[16]

The Offender's Pleas of Guilty

The Offender entered pleas of guilty in the Local Court to the Acts in Preparation Offence and the Threat to Kill Offence. After being charged with these offences on 14 September 2016, the brief of evidence was served by December 2016 with the Offender indicating from at least 30 May 2017 an interest in pleading guilty. He entered a guilty plea at the Parramatta Local Court on 4 May 2018 with respect to these matters and was committed for sentence.
The Offender is entitled to have taken into account in his favour the utilitarian value of his pleas of guilty for the offences prosecuted by the CDPP. With respect to the Acts in Preparation Offence, this is taken into account under s.16A(2)(g) Crimes Act 1914 (Cth) with a discount ordinarily to be extended for this purpose: Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4. With respect to the Threat to Kill Offence, the utilitarian value of the plea of guilty is to be taken into account for the purpose of ss.21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999 (NSW) in accordance with the principles in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32].
It was submitted for the Offender that a 25% discount ought be extended for his guilty pleas for the offences prosecuted by the CDPP. It was submitted for the CDPP that it was open to the Court to extend a discount for the utilitarian value of the Offender's pleas of guilty within the range of 10%-25%.
In all the circumstances, I am satisfied that a 20% discount ought be extended to the Offender for his pleas of guilty for these offences. The pleas of guilty were entered in the Local Court although the matters had been on foot for some considerable time at that stage. The utilitarian value of his pleas may be reflected appropriately in a 20% discount on sentence for each of these offences.
With respect to the offences prosecuted by the NSWDPP, the Offender was committed from the Local Court on 24 April 2017 to stand trial. Thereafter, the matter was mentioned on several occasions before being set down for trial. The trial was listed to commence in the District Court on 3 December 2018. In May 2018, the Offender indicated through his legal representative that he would plead guilty to the offences contained in the indictment. After an exemption under s.128(2) Criminal Procedure Act 1986 (NSW) was granted by Bathurst CJ on 7 September 2018, the Offender was arraigned on 5 October 2018 in this Court on which occasion he pleaded guilty to the State offences.

[17]

The Offender's Co-operation with Authorities

The Offender made admissions in the course of his record of interview with the JCTT on 14 September 2016. In addition, the Offender made a number of admissions with respect to the ss.27 and 33(1)(b) offences in the interview with New South Wales Police on 7 April 2016.
The audio-visual recording of the Offender's JCTT record of interview on 14 September 2016 is in evidence on sentence. I have watched the lengthy recording of the interview so as to acquire a clear understanding of what the Offender said, and how he said it in this interview.
It is correct to observe that the Offender made admissions with respect to the Acts in Preparation Offence and the Threat to Kill Offence, as well as fuller admissions concerning his attack on Mr O'Keefe, in particular, his intention to kill.
There was no hint of contrition or remorse underlying the making of these admissions. To the contrary, the Offender appeared to be boasting concerning his exploits and planned acts of violence on behalf of Islamic State. He gave the clear impression that he was proud of his acts and his support of violent jihad.
Senior Counsel for the Offender submitted that the Offender was entitled to a quantified discount, which combined the discount for the utilitarian value of his pleas of guilty with a discount for his co-operation with law enforcement agencies, to be taken into account in his favour (with respect to the Commonwealth offence) under s.16A(2)(h) Crimes Act 1914 (Cth) and (in relation to the State offences) under ss.21A(3)(m) and 23 Crimes (Sentencing Procedure) Act 1999 (NSW).
Reliance was placed in submissions for the Offender upon authorities including R v Ellis (1986) 6 NSWLR 603, R v Bell [2005] NSWCCA 81 at [9]-[11] (concerning the s.27 offence) and CMB v Attorney General for the State of NSW (2015) 256 CLR 346 at 371-374; [2015] HCA 9 at [70]-[78].
It was submitted for the Offender that the Offender's assistance by way of admissions warranted a quantified discount at least with respect to the Acts in Preparation Offence, the Threat to Kill Offence and the s.27 offence.
It was accepted by the CDPP that the Offender's admissions with respect to the Threat to Kill Offence were candid, but that the admissions concerned matters already known. It was submitted, as well, for the CDPP that the Offender was deliberately selective in the information he proffered to the JCTT officers on 14 September 2016.

[18]

The Offender's Letter to the Court

The time has come to refer to the Offender's letter to the Court apparently written on about 11 April 2019 (Annexure "A", affidavit of Senior Assistant Superintendent Poulsen, 29 May 2019).
It is clear from the letter itself, and what the Offender said to the Court about the letter, that it represents his present attitudes and thought processes concerning different issues which bear upon sentence in this case. There is no evidence that pressure was applied to the Offender to write the letter. Indeed, his approach to the letter suggests that the contrary is the case - he wishes the Court to have this information for the purpose of sentencing.
The handwritten letter is 13-pages long. It is a considered document written by the Offender who has prepared earlier documents which constitute evidence in the Acts in Preparation Offence and Threat to Kill Offence.
On the application of the CDPP, I made a non-publication order with respect to the letter on 21 June 2019: R v Hraichie (No. 2) [2019] NSWSC 765. The Offender's letter was unsolicited and offenders should not be left with "an automatic expectation that [the contents of such a letter] will be available for general publication" (at [16]). It was made clear, however, that parts of the letter would be referred to in sentencing the Offender. It is appropriate to refer to parts of the letter in this judgment.
The Offender commenced the letter with the heading "In the Name of Allah". He said: "The reason I am writing this letter is so that my views actions and beliefs may be made absolutly [sic] clear."
A little later, the Offender said: "This is in no way an attempt to propagate or promote extremism it is not a political stunt nor have I undertaken this task in search of any gratification or praise. It is only my duty as a Muslim to openly express and present Islam in its pure form and every single thing I mention is back [sic] 100% by Islamic texts and sources. Let this be a proof for me on the Day of Judgment that I did not water down, compromise or distort the religion of Allah and perhaps Allah may free my neck from the fire."
Under a heading "Democracy and Islam", the Offender said: "Obviously when one is asked whether they accept western values the questioner is refering [sic] to the religion of Democracy. The same religion which many lands, Muslim lands, have been invaded in order to establish its rule."

[19]

Absence of Contrition and Remorse

In sentencing the Offender, the Court is required by s.16A(2)(f) Crimes Act 1914 (Cth) to take into account the degree to which he has shown contrition for the Commonwealth offence. With respect to the New South Wales offences, remorse shown by the Offender may be taken into account as a mitigating factor on sentence: s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999 (NSW).
The Offender bears the onus of proving the existence of contrition or remorse on the balance of probabilities. I keep in mind what was said in R v Atai (No. 2) [2018] NSWSC 1797 at [295]-[299] with respect to the concepts of contrition and remorse.
The Offender made clear in his police interviews in 2016 that he was not remorseful.
Second-hand expressions of contrition and remorse directed to his mother carry no weight in circumstances where the statement cannot be tested and was made against the background of deeply entrenched views and beliefs held by the Offender. In any event, the Offender has disowned what his mother wrote on his behalf.
In his recent letter, the Offender has expressed selective regret (not based on real contrition) for part of his attack on Mr O'Keefe. He maintains the belief system which motivated these crimes. The Offender's beliefs continue his support for terrorism.

[20]

The Offender's Prospects of Rehabilitation and Risk of Reoffending

These were very serious offences committed by a heavily radicalised offender who believed in the righteousness of his own actions. The Offender's beliefs were based upon a perverse and criminal adherence to the extreme and poisonous views of the terrorist organisation, Islamic State.
The Offender's further offence committed in custody where he set fire to his cell on 20 June 2017 reflected a continuing manifestation of extremist beliefs on the part of the Offender.
The evidence before the Court at the sentencing hearing in March 2019 reflected a limited and very recent move in his attitude. It rose no higher than the possibility of the commencement of a process of disengagement by the Offender. It remained the case that there was no evidence of any interest in deradicalisation on his part.
The position has worsened for the Offender since then, given the attitudes expressed in his letter of April 2019.
It was submitted for the Offender at the hearing in March 2019 that the onus of proof lay upon the Crown to establish future dangerousness by reference to the Offender's current belief system. I do not accept this submission.
The onus lies upon the Offender to demonstrate a genuine movement away from his heavily radicalised and extremist views which involved acts of serious violence to an approach or belief system which pointed in a different direction. This forms part of the onus which lies upon the Offender to establish a fact which he sought to rely upon to mitigate sentence: Director of Public Prosecutions (Cth) v Besim; R v Alou (No. 4); R v Mohamed and Others [2019] VSC 498 at [137]. He has not done so in this case.
Before receipt of the Offender's letter of April 2019, an assessment of his prospects of rehabilitation was required, taking into account the deeply entrenched and radical beliefs which he manifested in 2015 and 2016, and acted on in ways that involved significant acts of violence and plans to carry out other acts of violence. There is no doubt that the Offender was a deeply radicalised person in 2016 who was committed to violent jihad in the cause of Islamic State.
The Offender's refusal to stand at the sentencing hearing provided some insight into his attitudes. However, what was unexplained at the time of the hearing in March 2019 as to his refusal to stand in Court is now explained in his recent letter in a way which demonstrates the Offender's rejection of the Australian democratic system (see [281]-[282], [290]-[291]).

[21]

The Offender's Youth

Senior Counsel for the Offender submitted at the March 2019 hearing that substantial regard should be had to his youth at the time of the commission of these offences. Although the Offender was an adult at the time of the offences, being 19 years of age, it was submitted that the principles in BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [3]-[6] should apply here with respect to a person not much older than the age of adult responsibility.
The CDPP and the NSWDPP accepted that the Offender's youth could be taken into account to an extent, but contended that the circumstances of these offences were very grave and reflected offences of a kind typically committed by adults.
I have regard to the Offender's youth in determining sentence. He has a significant criminal history involving custodial sentences as a juvenile offender and an adult offender. I do not consider that the Offender's youth provides any significant assistance to him on sentence given the gravity, variety and circumstances of the offences for which he stands to be sentenced.
The Offender's criminal history does not assist him on sentence. There have been many occasions where non-custodial sentencing options were made available to him, but with the Offender breaching probation or other forms of conditional liberty and returning to custody. The Offender's criminal history does not assist him with respect to his prospects of rehabilitation and likelihood of reoffending, except for the clear circumstance that he will be in custody for a very substantial period of time before he is eligible for release to parole at some time in the future.
The attitude of the Offender displayed in his recent letter to the Court suggests a considered approach to a serious issue written by a 22-year old man. He has had ample time since 2015 to consider his position in custody. If anything, the Offender's attitude has hardened.

[22]

The Relevance of the New South Wales Offences Being Committed Whilst the Offender was in Custody

The offences under ss.27 and 33(1)(b) Crimes Act 1900 (NSW) (in which Mr O'Keefe was the victim) and the offence under s.31 Crimes Act 1900 (NSW) (in which Mr Severin was the intended victim) each constituted an "Offence against the Person" falling within Part 3 of the Crimes Act 1900 (NSW).
The offences against Mr O'Keefe involved offences against the person (both involving an assault) committed by the Offender whilst he was a convicted inmate of a correctional centre. Accordingly, the usual provision concerning concurrent and consecutive sentences contained in s.55 Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply to these offences. Section 56(2) of that Act provides that a sentence imposed for each of these offences is to be served consecutively upon each other, and upon any sentence to which the Offender is subject when the sentences are passed, unless the Court gives a direction that the sentences are to be served concurrently, either wholly or in part.
The offence under s.31 Crimes Act 1900 (NSW) involved an offence against the person committed against a Corrective Services officer, Mr Severin. Accordingly, the sentence for the s.31 offence is to be served consecutively with an existing sentence of imprisonment and other sentences of imprisonment imposed in the present proceedings, unless the Court is of the opinion that there are special circumstances justifying a direction that the sentence be served concurrently, wholly or in part: s.56(3A) Crimes (Sentencing Procedure) Act 1999 (NSW).
The rationale for these provisions is clear enough. In R v Windle [2012] NSWCCA 222, Basten JA (Price J agreeing) noted at 56, in the context of a serious offence of violence committed by one inmate against another whilst in custody, the importance of maintaining discipline within the prison system and protecting other offenders from criminal assaults by fellow inmates, a matter which is reflected in the general requirement for such offences to be the subject of cumulative sentences.
In R v Jeremiah [2016] NSWCCA 241, the Court of Criminal Appeal (Meagher JA, Davies and Fagan JJ), in the context of a Crown appeal concerning a sentence imposed for a serious offence of violence committed by one inmate against another in custody, said at [9]-[10]: "9 Accompanying the need to reflect total criminality is the Court's concern to maintain public confidence in the administration of criminal justice. The concurrence ordered by his Honour, if allowed to stand, would undermine that confidence and give rise instead to a perception that a person who has committed a serious offence has escaped effective punishment: Regina v Wheeler [2000] NSWCCA 34 at [36] - [37]; Pannowitz v R [2016] NSWCCA 13 at [40]. A case such as the present involves an especially important factor relevant to general deterrence which must be taken into account in determining whether concurrence of any degree (and, if so, what degree) will be consistent with the imposition of a sufficient penalty overall. Namely, the sentence must effect sufficient general deterrence to demonstrate that violence and disorder between prisoners in custody will not be tolerated by the courts: R v Fyffe [2002] NSWSC 751 at [33]; R v Hoskins [2004] NSWCCA 236 at [62] - [63]; R v Windle [2012] NSWCCA 222 at [56]. 10 This consideration was stated in these terms by Barr J in R v Fyffe at [33]: 'It is particularly important that courts impose sentences calculated to deter the commission of offences in prison. Officers who administer prison communities are entitled to expect that inmates will be deterred from offending. Equally, inmates serving their sentences as best they may are entitled to as much protection as the courts can afford them'."

[23]

Statutory Factors to be Taken into Account on Sentence

It is necessary for the Court to have regard to a number of factors specified in s.16A Crimes Act 1914 (Cth) and ss.3A and 21A Crimes (Sentencing Procedure) Act 1999 (NSW). A number of these matters have already been referred to in these sentencing remarks.
The Court must have regard to the nature and circumstances of the Acts in Preparation Offence and the course of conduct involved: s.16A(2)(a) and (c). The s.101.6(1) offence in this case is an extremely serious one which lies at the high end of the scale of seriousness for offences of this type. It is a rolled-up count involving four phases of conduct by the Offender over a six-month period in which he planned the commission of terrorist acts against police officers or Corrective Services officers, both inside and outside prison.
With respect to the offences under the Crimes Act 1900 (NSW), I have made findings above concerning the substantial gravity of each of these offences (see [230]-[242]). The Court should ensure that the Offender is adequately punished for these offences: s.3A(a) Crimes (Sentencing Procedure) Act 1999. It is necessary, as well, that the sentences for the offences against Mr O'Keefe recognise the harm to him and the community: s.3A(g).
The Court must ensure that the Offender is adequately punished for the Acts in Preparation Offence: s.16A(2)(k) Crimes Act 1914 (Cth). With respect to that offence, I have referred earlier (at [223]) to sentencing principles to be called in aid to ensure that adequate punishment is imposed for that offence. One of the characteristics that distinguishes terrorism from other crimes involving violence (or the threat of violence) is that its object is to use serious violence (or the threat of it) as an instrument of coercion or intimidation of the community or governments, in the pursuit of a political, religious or ideological cause: R v Lodhi at [91]-[92]; Thomas v Mowbray at 338 [45]. This aspect must be kept in mind when determining adequate punishment for the Offender's terrorism offence.
For reasons explained earlier, I am not satisfied that the Offender has displayed contrition or remorse: s.16A(2)(f); s.21A(3)(i).
I have considered earlier (at [243]-[250]) the approach to be taken to the Offender's pleas of guilty and the discount to be applied in that regard: s.16A(2)(g); ss.21A(3)(k) and 22.

[24]

Other Statutory Matters

Section 19AG Crimes Act 1914 (Cth) requires the Court, in sentencing for a terrorist offence, to fix a non-parole period which is at least three-quarters of the head sentence. The operation of s.19AG should not result in a lower head sentence being imposed in an effort to ensure that a specific minimum term can be found to apply: R v Lodhi at [105]-[108].
The Court must impose a discrete sentence for the Commonwealth offence and apply State sentencing law in passing sentence for the State offences. When sentencing for Commonwealth and State offences, the Court must impose separate non-parole periods for the offences: s.19AJ Crimes Act 1914 (Cth).
When sentencing for Commonwealth and State offences at the same time, the Court is required to direct when the Commonwealth sentence is to commence and must ensure that the Commonwealth sentence does not commence later than the end of the commencement of a sentence which has already been fixed: s.19(3)(c) Crimes Act 1914 (Cth).
I note that the provisions now contained in s.105A.23 Criminal Code (Cth) apply where a continuing detention scheme operates for high-risk terrorist offenders. It is a requirement of that provision that a sentencing court provide a warning to a person at the time of sentence of the existence and operation of that provision and I will do so. The existence of the continuing detention regime after the expiration of the sentence is not to be taken into account in the imposition of the sentence itself: Director of Public Prosecutions (Cth) v Besim (No. 3) (2017) 52 VR 303; [2017] VSCA 180 at [59].
An offence under s.27 Crimes Act 1900 (NSW) is a "serious violence offence" for the purpose of the Crimes (High Risk Offenders) Act 2006 (NSW) so that in compliance with s.25C(1) of that Act, the Court is required to warn the Offender of the existence of that Act and its possible application in his case.
I will bear these various provisions in mind when imposing sentences for the various offences in this case.

[25]

Issues of Accumulation, Concurrency and Totality

With respect to the ss.27 and 33(1)(b) offences prosecuted by the NSWDPP, it was submitted for the NSWDPP and the Offender that the sentences for these offences may be made entirely concurrent. In this respect, it was argued that the Offender's attack upon Mr O'Keefe constituted a single course of conduct with different features so as to give rise to two separate offences.
During the course of submissions, I made clear that I had trouble with this submission. Quite apart from the operation of s.56 Crimes (Sentencing Procedure) Act 1999 (NSW), it seemed to me that these offences should be approached upon the basis that there were two very serious crimes of violence committed against Mr O'Keefe during the course of a sustained and multifaceted attack upon him by the Offender.
A broad analogy may be drawn with a course of conduct where a sexual attack is made by an offender against a victim with various forms of sexual assault involving differing types of penetration being committed. As Senior Counsel for the Offender acknowledged during submissions, an element of accumulation is more than reasonably open in those circumstances.
There was an attack by the Offender upon Mr O'Keefe in the cell on this occasion, in a way which involved different offences of violence and different physical acts, which gave rise to different and very serious crimes. I do not consider that it is appropriate to proceed upon the basis that the sentences for these offences ought be entirely concurrent.
Working within the discretion allowed under s.56(2) Crimes (Sentencing Procedure) Act 1999 (NSW) there is substantial scope for the offences to be served other than consecutively. As flagged during the course of submissions, I am satisfied that the appropriate way to deal with these offences is by means of an aggregate sentence.
I am satisfied that a significant level of accumulation is required as between the aggregate sentence to be imposed for these offences and the separate sentence to be imposed for the offence under s.31 Crimes Act 1900 (NSW) prosecuted by the CDPP. This approach gives effect to s.56(2) and also the fact that there are separate victims of these offences against the person.
I am satisfied that special circumstances exist for the purpose of s.56(3A) justifying a direction that the sentence for the s.31 offence not be entirely consecutive in this case. In this regard, I have taken into account the nature of the offence, which does not involve an actual attack upon a Corrective Services officer, together with the totality principle to which I will turn shortly.

[26]

Determining the Appropriate Sentences

I move now to determine the appropriate sentences. There needs to be reasonable proportionality between the sentences and the circumstances of the Offender's crimes: R v Dodd (1991) 57 A Crim R 349 at 354. This brings into play all of the matters which I have considered so far in this judgment.
The Offender planned the commission of a terrorist act over a six-month period in 2015 and 2016. His initial plan was to attack police officers. He was not deterred from planning a terrorist act by being detained in a correctional centre. Indeed, he varied his plan so as to make a Corrective Services officer or officers the potential targets of the planned attack.
The Offender's plans were not the subject of idle thoughts or fantasies. He prepared for an attack in prison, arming himself with a blade, rope and other items to permit an attack on a Corrective Services officer as Anzac Day 2016 drew near. When upset by nothing more than having an ex-serviceman in his cell, the Offender launched a ferocious and sustained attack upon Mr O'Keefe with intent to cause grievous bodily harm and death to his unfortunate victim. The Offender was prepared to use weapons and other paraphernalia which he had gathered for a terrorist act to inflict a form of torture upon Mr O'Keefe. Although not a terrorist act, it was a hateful and cruel attack.
When transferred to the HRMCC at Goulburn, the Offender continued to plan for the commission of a terrorist act against police officers in the community.
In addition, in a display of supreme arrogance, he wrote to the Commissioner of Corrective Services NSW threatening to kill him unless the Offender got his way.
Three years later, in his recent letter to the Court, the Offender has endorsed the beliefs and thought processes which led to these crimes. Even after sober reflection and the passage of years, the Offender remains fixated by the perverse and criminal thought processes which operated at the time of the offences in 2015 and 2016.
In sentencing for the terrorism offence, the Court should keep in mind, as the Victorian Court of Appeal has observed, that the objective of terrorists is to "strike at the heart of our liberal, democratic and tolerant society" and that the actions of terrorists are "driven by a depraved and evil ideology and mentality which are anathema to the fundamental values of our nation" with their actions and underlying intent being "entirely morally bankrupt and totally cowardly": DPP (Cth) v MHK (a pseudonym) at [61]-[62].

[27]

Amendments 14 August 2019 - [227] - On the application of counsel appearing for the Offender at the sentencing hearing in March 2019, and with the consent of counsel who appeared for each of the Commonwealth Director of Public Prosecutions and the Director for Public Prosecutions for New South Wales at the sentencing hearing, this paragraph has been amended to more accurately reflect the submission made on behalf of the Offender at that hearing. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 August 2019

In a boasting and self-congratulatory manner which was devoid of any contrition or remorse, the Offender made the following additional comments in the interview: 1. he confirmed that he would tell the truth to police, even if it incriminated him, but he would not name other people or say anything that would incriminate "my brothers"; 2. he praised the killer of Curtis Cheng as a "Little lion" for the "fear he put in the hearts of Australia"; 3. he said that he could not be deradicalised because he regarded it as his religion, stating "There's nothing to deradicalise ... There's no such thing as extremism. How is it extreme? You know what I mean? It's in the Quran. It's the religion, end of the day"; 4. he explained his reasoning process was that Western leaders like George W Bush, Tony Blair, Barack Obama and Malcolm Turnbull should also be regarded as terrorists because of their actions towards Muslims, and they would go to hell, but in contrast the Offender said he thought of himself as belonging to terrorists that Allah was pleased with; 5. he confirmed that he wanted attacks to keep occurring until Sharia law was established in Australia; 6. he expressed his dislike for gay people and gay marriage; 7. he said he knew his mother and father were against his extremist views but he did not care what they said; 8. he looked forward to beheading someone because of the feeling he believed it would give him; 9. he emphasised that the decisions he makes are based on his considered study of the Quran and the Sunnah; 10. he explained that when he had been younger in the community he had been doing drugs, going to parties and was not that interested in religion, but that his views started to change after visiting Lebanon where he claimed to have seen Muslims being mistreated, as well as seeing similar things on videos he had watched; 11. he said he had formed his own views and had supported Islamic State, from about 2014, but he did not think of himself as being radicalised or brainwashed as it was part of fighting in the way of Allah; 12. he had wanted to obtain Lebanese citizenship so that he could leave Australia, because of Australia's support for gay marriage, imprisoning his fellow Muslims and sending Australian soldiers to fight Muslims overseas; and 13. he confirmed that if he were out in the community, he would not hesitate in carrying out an attack, even though he would not have immediate access to firearms, as he would just steal a car and run someone over.

In the interview of 7 April 2016, the Offender stated: 1. He returned to his cell at 2.00 pm and saw Mr O'Keefe in his cell (Q/A22). 2. The Offender "didn't really speak to him. I just asked him, 'Are you in the room here?'" to which Mr O'Keefe replied "Yeah". Mr O'Keefe told the Offender about the "house rules", such as that the Offender had to sit down to use the toilet. Mr O'Keefe then went out and walked around until they were locked in their cells that afternoon (Q/A31). 3. After being locked in, the Offender and Mr O'Keefe started talking (Q/A34). 4. The Offender said Mr O'Keefe asked the Offender what religion he was, to which the Offender replied that he was Christian. The Offender asserted that Mr O'Keefe told him that he used to serve in the Army and that he had served in Timor. The Offender said he asked Mr O'Keefe whether he had killed anyone and Mr O'Keefe replied, "I was killing Muslims ... killing Muslims 1, 2, 3". Mr O'Keefe was alleged to have told the Offender he had killed "too many", but that he remembered killing a 13-year old child by running up to him and shooting him twice in the chest and executing him. The Offender said Mr O'Keefe started saying "racist shit", something about the Prophet that angered the Offender (Q/A38 to Q/A42). 5. The Offender stated that he got off his bed and said to Mr O'Keefe, "Brother, you know I'm Muslim". The Offender said Mr O'Keefe looked at him "and it clicked straight away, that I'm about to have a go with him". The Offender said he and Mr O'Keefe then exchanged a number of punches, some of which connected. The Offender said he punched Mr O'Keefe which "dropped" him, and the Offender stood over him punching him repeatedly. The Offender said he got his disposable razor and said to Mr O'Keefe "You're lucky I don't kill ya". The Offender used the razor to carve "E4E" (being an "eye for an eye") into Mr O'Keefe's forehead. The Offender continued to "bash" Mr O'Keefe saying that he did not feel bad for him but did not want him to die either (Q/A43 to Q/A47). 6. The Offender said he put Mr O'Keefe in the shower to clean the blood and gave him a couple of towels. The Offender said that there was "blood everywhere ... l started cleaning it ... it was too much". The Offender admitted slicing Mr O'Keefe's neck a couple of times on the front and back but described them as not "bad cuts". The Offender then tied a sheet around Mr O'Keefe's neck and head in an effort to stop the bleeding (Q/A48 to Q/A56). 7. The Offender said he gave Mr O'Keefe water and told him to lie down and that he (the Offender) would clean the cell. The Offender told police that he had a knife in his cell, which he did not use, and that it was down his pants at the time. He told police that whilst cleaning up, he turned around and noted that Mr O'Keefe was holding a coaxial cable (Q/A58 to Q/A61). 8. The Offender told police that Mr O'Keefe tried to whip him with the cable and then the Offender thought "you know, like that's it, you know, game over, fuck him ..." (Q/A64). 9. The Offender said he punched Mr O'Keefe to the face with sufficient force that he thought he had broken Mr O'Keefe's nose, and that Mr O'Keefe had dropped the coaxial cable (Q/A71). 10. The Offender said he grabbed the coaxial cable and kicked Mr O'Keefe in the leg before he "started lashing him, lashing him" on his back with the cable. The Offender said he told Mr O'Keefe not to disrespect his religion. The Offender alleged that Mr O'Keefe said "Fuck the Islamic State, fuck the Muslims". The Offender continued to lash Mr O'Keefe's back with the cable before kicking him. Mr O'Keefe then started convulsing and the Offender thought that he was going to die and noticed that his sternum was all black and Mr O'Keefe was coughing blood. The Offender used the buzzer inside the cell to alert officers. When doing so, the Offender asserted that Mr O'Keefe told him to "leave it". The Offender then formed the view that Mr O'Keefe was seriously injured and used the buzzer again, telling the officers that he had bashed Mr O'Keefe (Q/A75 to Q/A80). 11. The Offender told police that he had got "done" the previous Friday for having a photocopy of a book entitled "The Flames of War'', a religious book which was given to the Offender by a "cousin in Supermax". The book was confiscated by prison authorities and sent to Sydney (Q/A82 to Q/A86). 12. The Offender told police that when Mr O'Keefe asked what religion he was, he became paranoid, thinking that Mr O'Keefe was a member of the Australian Federal Police (Q/A86). 13. The Offender told police that he bashed Mr O'Keefe because he repeatedly talked about killing a Muslim child in Timor, and then called the prophet Mohammed a "rapist" (Q/A97, Q/A101, Q/A104). 14. The Offender told police that he first bashed Mr O'Keefe, then whipped him, then cut him and he stated after he lashed Mr O'Keefe with the cable, he "got very dirty" and filled up the kettle with water and placed a towel over Mr O'Keefe's face. He then poured water over Mr O'Keefe's face for about 10 seconds because Mr O'Keefe had earlier joked about how he (Mr O'Keefe) had water-boarded Muslims in the past (Q/A130 to Q/A136). 15. The Offender confirmed that he cut Mr O'Keefe across the throat a "couple of times" demonstrating one cut to the left, and one cut to the right side of the neck (Q/A170 to Q/A175). 16. The Offender stomped on a razor to get the blade out and "I carved E4E" on Mr O'Keefe's forehead and after that "I lashed him" with the coaxial cable (Q/A112 to Q/A122). 17. The Offender also cut Mr O'Keefe on the left side of his face (Q/A175). 18. The Offender told Police that after he put Mr O'Keefe in the shower and "washed him" and he placed bandages around Mr O'Keefe's neck. The Offender stated that he "got a bed sheet … the bed sheet I ripped it into … , like long shreds, so it's like a, works like a bandage and I just wrapped it around him a couple of times"' (Q/A163 to Q/A167). In his interview with JCTT on 14 September 2016, the Offender expanded upon when he had in fact prepared the "bandages" and their intended use (see 135 below). 19. The Offender told Police that he had "flushed" the knife and he described it as a "shiv" (Q/A250 to Q/A253). 20. The Offender told Police that he felt "very bad for it [what he had done] now but like I was in rage, you know …" and the Offender went on to state "I hope he doesn't, you know, doesn't die or something, you know what I mean. If he dies, yeah, like honestly it's 'cause of that life. If you kill someone in gaol you're doing life … and I don't want to die in gaol" (Q/A197, Q/A351 to Q/A353). Interview with JCTT on 14 September 2016

In that interview, the Offender had more to say about his attack upon Mr O'Keefe. Both the tone and the content of the Offender's account shed considerable light upon this attack. The Offender boasts about the attack, laughing at one point as he denied being remorseful, noting his "only regret" was that he "didn't use a bigger knife". The interview included the following: 1. The Offender said about his placement in a cell with Mr O'Keefe - "I was put in with the ex-soldier, all right, who was put there by the Governor who got stood down and he's lucky he didn't die. I tried to, ah-ha. He's lucky he didn't" (Q/A159). 2. The Offender referred to the sheets which he used to cut into ropes - "I cut - I cut a few shreds of bed - bed - bed cloth, bed linen whatever that were found - that - that I used to tie up that other idiot [Mr O'Keefe], that O'Keefe on the GBH charge, all right". The Offender stated he had prepared the "ropes" before the attack on Mr O'Keefe and that he had intended "to tie up the screw". When asked what he used the ropes for, the Offender replied "well they were used on the other idiot [Mr O'Keefe] to tie him up". The Offender went on to say that he "tied one around his throat ...They had to cut them off him ... there's pictures of the ropes drenched in blood" (Q/A263, Q/A283, Q/A284, Q/A285, Q/A288). 3. When asked by police about the knife he used in the attack, the Offender said "it was a gaol knife'' that he got the week before the attack. The Offender stated that he "tried to stab that other mutt [Mr O'Keefe] with it and it didn't go - it didn't really go into him. It cut his head, it didn't go into him". Concerning the use of the knife, he stated "I tried to. It didn't do as much damage as I wanted. I tried to stab him with it. It wouldn't go into his skin ... So that's why I resorted to the razor to cut his head and try to slit his throat and that …" (Q/A264, Q/A271, Q/A501). 4. Concerning the injuries sustained by Mr O'Keefe, the Offender told police - "Why should I care? I tried to kill him. I wish I - I wish he died... I got no regrets to that. I did that attack and it was Islamic State inspired ... I don't care whether I get ten years or twenty years or thirty years". The Offender went on to say "Remorse. Do I have remorse for it? Why should I have remorse for it? My only regret is I didn't use a bigger knife [the Offender laughed at this point]" (Q/A1044). At other times in the JCTT interview, the Offender referred to Mr O'Keefe as a "gronk" (Q/A289, Q/A295). 5. With respect to his claim to New South Wales Police in the 7 April 2016 interview that he provided water to Mr O'Keefe, the Offender said that he had lied when he told them that he was trying to help Mr O'Keefe. He said that "I wanted to kill him. Do you think I wanted to - do you think I wanted to give him what do you call it? I've explained it with you. What I just told now is the truth. I was - my intention was to kill him but at the time I didn't know whether I should try to play the defensive, 'ah help me' card or the - reveal my true intention. That's the truth". (Q/A1220). The Offender stated that when he spoke to the New South Wales Police "I cooled down and I had time to refresh my story. Then I played the little eighteen year old innocent, oh, cause I thought I'm goin' to beat it …The only remorse is I didn't use a bigger knife" (Q/A1268).

In sentencing the Offender for the Acts in Preparation Offence, it will be necessary to apply the provisions of s.16A Crimes Act 1914 (Cth). In addition, regard should be had to principles concerning sentencing for terrorism offences summarised in R v Alou (No. 4) at 422-423 [164]-[171]: "164 A number of principles have been identified by Courts in Australia and the United Kingdom with respect to sentencing for terrorist offences. 165 The primary considerations on sentence for terrorist offences are the protection of the community, the punishment of the offender, the denunciation of the offending and both specific and general deterrence: R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691 at [92]; Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360 at [274]; R v Khazaal [2009] NSWSC 1015 at [47]. 166 Subjective circumstances and mitigating factors, including considerations of rehabilitation, are to be given less weight: R v Lodhi at [89]; Lodhi v R at [274]; R v Khazaal at [41]; DPP (Cth) v Besim [2017] VSCA 158 at [112]-[113]. 167 The religious and ideological motivation of an offender is relevant to the issue of community protection, as well as to the assessment of the objective gravity of the offence: R v Kahar [2016] 1 WLR 3156; [2016] EWCA Crim 568 at [19]. 168 Where it is not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance: R v Lodhi at [82]-[83], [88]; R v Elomar and Ors (2010) 264 ALR 759; [2010] NSWSC 10 at [93]; Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 at [591]. 169 Weight must be given to the need for general deterrence even if the force of ideological or religious motivations are such that deterrence may not be effective: R v Lodhi at [91]-[92]; Lodhi v R at [87]-[88]; R v Barot [2007] EWCA Crim 1119 at [45]; DPP (Cth) v Fattal [2013] VSCA 276 at [169]; DPP (Cth) v MHK [2017] VSCA 157 at [52]-[53]. 170 Whilst youth is relevant to determining the weight to be given to general deterrence and denunciation in the sentencing equation, its weight is diminished quite measurably in terrorist cases where the offender participates in, plans or carries out actions of extreme violence. The protection of society, and the upholding of its most fundamental values, necessitates that in terrorist cases, the sentencing considerations of general deterrence and denunciation must be given primacy above the ameliorating effect of youth: DPP (Cth) v MHK at [66]; R v Khalid and Ors [2017] NSWSC 1365 at [109]-[113], [270]. 171 In considering the nature and gravity of terrorist offences, courts in Australia have utilised a number of factors referred to by the UK Court of Appeal in R v Kahar at [19]: R v Elomar at [62]; R v Benbrika at [564]; R v Khalid and Ors at [25]. The factors referred to in R v Kahar are: (a) the degree of planning, research, complexity and sophistication involved, together with the extent of the offender's commitment to carry out the act(s) of terrorism; (b) the period of time involved, including the duration of the involvement of the particular offender; (c) the depth and extent of the radicalisation of the offender as demonstrated (inter alia) by the possession of extremist material and/or the communication of such views to others; and (d) the extent to which the offender has been responsible, by whatever means, for indoctrinating or attempting to indoctrinate others, and the vulnerability or otherwise of the target(s) of the indoctrination, be it actual or intended."

R v Hraichie

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Cases Cited (58)

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