R v Khaja

Offender's background to early 2016

1. The offender's parents were both born in Kabul, Afghanistan and were married there in December 1990. They arrived in Australia in 1993. The offender is their third child, born 8 September 1997. The offender's parents are Sunni Muslims who describe themselves as moderate. He attended Epping Boys High School from the beginning of 2010 when he commenced Year 7. From early 2013 (in Year 10) he became preoccupied with the study of Islam and with participation in Muslim prayer groups at the school. He later told undercover operatives that at some time he had received tuition from an Arabic teacher, over a period of three years, and that since that period of tuition he was reading the Quran for 15 or 20 minutes each day.
2. In mid-November 2013, at 16, the offender was required to answer a series of school examination questions in the subject "Health". He submitted answers which reflected his view of the incompatibility of the Islamic faith with democratic government in Australia. One answer was "Democracy is haraam [meaning forbidden according to Islamic law]. Screw the government".
3. In November and December 2013, at the end of Year 10, the offender purchased airline tickets for travel to Hong Kong and from there to Turkey. He intended to reach Syria and to join one of the organisations which were at that time engaged in armed combat against the Syrian government. This was his first attempt to travel to Syria, pre-dating by two years the foreign incursion offence which he has admitted in these sentence proceedings. He was persuaded by his parents and school principal to change his mind about travelling to Syria on that occasion.
4. The offender returned to Epping Boys High School after this incident and completed Years 11 and 12 in 2014 and 2015. During those years he continued to engage in Islamic thought and study. He attended a student-organised prayer group at the school each day and gave a sermon to the group on most Fridays. In about mid-2015 allegations were made that he was preaching violence towards non-Muslims in these Friday prayer meetings. He was interviewed by counter-terrorism police. It was concluded that he "did not appear to have an extremist view" and that there was no information to suggest his school prayer sessions "were promoting any extremist beliefs". He told police that he had ceased to be interested in ISIS and refused to take part in a program which he was offered, designed to divert participants from terrorist activity.
5. The offender left school at the end of 2015 and in early 2016 was employed as a sales assistant in a clothing store at Parramatta. He remained in that employment until his arrest on 17 May 2016.

The foreign incursion offence

1. At 7:15 am on 27 February 2016 he was intercepted by Australian Border Force officers at Sydney International Air Terminal as he attempted to embark for Thailand on the first leg of his journey to Syria. He falsely told the Border Force officers that he was only intending to travel as far as Thailand and to return after a four-day holiday.
2. The offender was then interviewed by Agents of the Australian Federal Police. He denied that he was planning to travel on from Bangkok to join ISIS. He said he was aware ISIS and two other groups in Syria were terrorist organisations "according to our religion and according to your legislation". He said Islamic scholars were against these groups and had given religious rulings accordingly. He said ISIS and similar groups attempt to justify their actions by taking passages of religious texts out of context. Following this police interview at Sydney Airport on 27 February 2016 the offender's passport was suspended and he was not permitted to board his flight. The passport was cancelled on 8 March 2016.

Offender's untruthfulness in connection with the foreign incursion offence

1. The offender was untruthful, in numerous respects, with the Australian Border Force officers and Federal Agents. Subsequently in early May 2016, when he conversed with police undercover operatives who he thought were sympathetic to his plan for a terrorist attack in Australia he admitted that on 27 February 2016 he had been trying to depart Australia to join ISIS in the Middle East.
2. Those conversations show that at the date of his planned flight to Bangkok he considered ISIS' war-making was supported by the Quran, contrary to what he told police. In the May conversations he also repeatedly expressed the belief that violent attack upon unbelievers is the religious obligation of Muslims, dictated by Allah through revelations recorded in the Quran.

Events prior to the charge period of the terrorism planning offence

1. In March and April 2016 the offender used an encrypted broadcast and messaging application [unnamed] on his mobile phone. In early to mid April 2016 he used the application to view a post containing detailed instructions for making a bomb from readily available components. The instructions said that: In one or two days the bomb could be ready to kill at least ten people. In a month you may make a bigger and more lethal bomb that could kill tens of people. Descriptions of the components and information for assembly and detonation followed.
2. The offender used the application from 29 March 2016 to communicate with an Islamic religious leader apparently living in the United Kingdom, Abu Haleema. He sought religious guidance from this person, including as to whether it is permitted for a Muslim to marry if he knows he will not live long. I am satisfied beyond reasonable doubt the offender intended by this date to make an attack upon unbelievers on Australian soil and that he did not expect to survive.
3. From 2 to 5 May 2016 the offender was in contact with an individual referred to in these sentence proceedings as "Person A". He told this person he had been in contact with a man who had travelled from Australia to fight with ISIS and who had since been killed. He said: We were talking about important things which I wish to discuss with you or any other trusted person who can be offer work for the state for people who are in darul kufr. In this quotation and in those that follow from the offender's text messages emphasis has been added but spelling and other errors are as in the original.
4. By the expression "darul kufr" the offender referred to the realm of unbelief, meaning a country or locality in which the Muslim religion is not dominant and which is not governed by sharia. The offender continued: I want to work from here tell me what to do I have been planning for a while now but am waiting on a few things. What are good solid targets and before I do I will send my final words to you …
5. Person A messaged back: "who are you? And where are you from?" The offender replied that he was a "brother from Australia" who had been caught trying to travel to Syria. He said: So I wish to fulfil my obligation here …
6. Having regard to the offender's later statement that his motivation to carry out an attack "comes straight from the verses of the Quran" (see [40] below), I am satisfied beyond reasonable doubt that he was referring to what he believed to be the "obligation" of Muslims, commanded in passages of the Quran, to fight unbelievers "in the cause of Allah", to achieve worldwide domination by Islam.
7. Person A enquired what capabilities and weapons the offender had and whether he acted alone or with others. The offender replied, again by way of the application, as follows: … no weapons at the moment I am currently sourcing a glock but I want to do big damage I am thinking more along the lines of boston marathon.. I know how to make a portable microwave b..b I am acting alone … … with the permission of Allah no doubt even with a handgun I would be able to cause a lot of damage. Using it isn't an issue when I went on holidays to Afghanistan over a few years ago I got taught how to shoot etc. obviously I haven't had practice since [but] it wont be a problem at all … … I am so sad I couldn't come. My heart has been broken. I wanted so badly to be on the battlefield with my brothers. … Advise me which sort of places would be best to attack in sha Allah [God willing] and I will plan from there. I was thinking US embassy but it may be heavily guarded. Or an army barracks which I see do front yard training some days and when I drive past I see them sometimes. There is a big gate but sometimes its open. If I plan around there schedule I would be able to launch an attack by ramming the lot of them by car and then firing head shots when they are on the ground Or if its possible Teach me how to make an istishhadi belt
8. An "istishhadi belt" is a device fitted with explosives designed to be detonated by the wearer for the purpose of killing people around him and himself. It is otherwise known as a suicide vest or belt. The term refers to "istishhad", the Islamic concept of martyrdom.
9. On 8 May 2016 the encrypted conversation with Person A continued, including these messages from the offender: I will speak to someone in the next few days in regards to sourcing a weapon in sha Allah [God willing] but it wont be enough for what I want to plan … Is it possible to make an istishhadi belt here with the things available in the shops of the west? … … I am sourcing [the weapon] from someone I can trust … . Only problem is how long it takes. My plan is in the process that's why I required your assistance in what I should do. I want to plan around my intentions and the first being 1. [weakening] the forefront of the kuffar by putting the fear of Alla and the Islamic State in them. This way they will be weak and fearful of the Khilafah so it needs to be big. The 2nd intention is getting revenge for the sake of Allah so indeed a lot of blood needs to be spilled. 3rd is attaining shahadah Bi'idhnillah. My main intention fulfilling the obligation of jihad with pure heart and intention … . Plan is leaving a bomb in a central business district where there are government jobs and offices. When this goes off I will launch my own attack and kill as many planned targets as possible with the sourced weapons and a machete as well. 3rd is if I am able to make an istishhadi belt here then that will make the plan even bigger I will walk into there courthouse where they judge by a Law other than Allahs and I will take them all out with the permission of Allah.
10. "Khilafah" means caliphate, the entire Muslim community under the leadership of a caliph. "Shahadah" apparently translates literally as bearing witness but, taking into account the context of this passage, I conclude the offender was speaking of achieving martyrdom. "Bi'idhnillah" means by the permission of God. From his usage of the term "Jihad" throughout his written and oral communications I am satisfied that he meant by it physical, violent struggle in furtherance of Islam. His reference to "a Law other than Allahs" is to Australian laws which, not being sharia, he evidently does not accept.
11. On 10 May 2016 the offender told Person A that of the targets he was contemplating he thought the "courthouse would be a great plan but only problem is that Muslims are there often attending court cases. And we cannot spill a drop of Muslim blood so I must be careful and plan properly". He sent to Person A an image of Timor Barracks and said he thought it was "also a good target but activity on it is low so I don't think results will be great as we desire".
12. In further reference to the courthouse as a target the offender wrote: A lot of taghut police thoughi judges but as you walk in there is metal detectors and guards so I would have two launch an attack upon entry … . In context, by the expressions "taghut police and thoughi judges" the offender apparently meant officials who apply laws other than sharia.

Events during the charge period of the terrorism planning offence

1. On 11 May 2016 Person A informed the offender by encrypted message that he would contact a "very pious and highly trusted" Australian "brother" to see if the brother would assist the offender with his plan. The next day Person A provided to the offender the name Abu Baraa and said this person would make contact within a day or two and arrange a meeting to provide assistance.
2. On the evening of 12 May 2016 the offender commenced to exchange encrypted messages with a person who identified himself as Abu Baraa. He believed he was dealing with a supporter of Islamic terrorism but the name was in fact being used by Australian investigating authorities. Early in the exchange the offender explained he had been stopped trying to travel to the Middle East and said: If i cant travel… I will fulfil my obligation here In darul kufr
3. The offender then proceeded to outline to Abu Baraa his plans and needs: My plan is to carry out an attack here bro but not something small. Im talking big Our brother will be sending me encrypted documents which will teach me how to make a bomb, more importantly an istishadi belt … So i am trying to figure out the best targets, source a weapon which i am in the process of doing but money is an issue and second is timing ... The person i am talking with is a dealer. He doesnt ask questions. His a jahil [ignorant].. if he can get it he will but i dont like time wasters and he seems to be wasting time so im starting to doubt his ability to source a weapon … Istishadi belt for most damage, a gun (glocks dont jam) but anything will do. Flag of the khilafah for propaganda. If you could get these things thats pretty much the things needed. The planning and attack planning will be done by our brothers when I send them photos of a target which im trying to think about which would be best
4. The offender said he was confident with a firearm and that his uncle in Afghanistan had taught him how to shoot. He continued: if yiu could source an assault rifle akhi it would do way more damage. The gun will be to launch the attack but the main weapon has to be a bomb to send a message Akhi there has never been an istishadi op in aus If this happens … They will be shocked and vulnerable to the state and more attacks. When this happens brothers who have been holding back or waiting will launch attacks too. After paris i wanted to pick up a knife and start cutting heads of but i waited but there is no more time for waitinf It will send a big message like paris in sha Allah
5. I infer that the offender's reference to "paris" was to the Islamic terrorist attack on the office of Charlie Hebdo magazine on 7 January 2015 in which 12 people were killed and 11 wounded by Islamic terrorists' gunfire. Towards the end of this exchange of messages, late in the evening of 12 May 2016, the offender informed Abu Baraa that he needed the approval of "an amir", meaning a leader, "to carry out our istishadi ops here"
6. On Sunday 15 May 2016 at about 10:15 am, by arrangement the offender met an undercover operative known by the pseudonym AB in Parramatta Park, believing him to be the Abu Baraa with whom he had communicated on the encryption application. The offender related his planned but aborted trip to Syria of 2013, his contacts with people fighting with ISIS, the attention he had received from authorities as a result of preaching in Friday prayer groups at his school in mid-2015 and the interception at the airport in February 2016. The offender said he held his job in a retail clothing store as a cover, to make himself appear "moderate".
7. The offender stated a concern with the Parramatta courthouse as a target that "there's too many Muslims there going to court". He also said: … every morning that I wake up there is a deep, deep depression inside of me and I know the only way to be freed is by fulfilling my obligation whether I'm in the land of Al Sham [Syria and adjoining territory of the Eastern Mediterranean] or whether I'm here. When I'm here Jihad is Jihad. It's got to be fulfilled wherever you are.
8. After this conversation in Parramatta Park the offender walked with AB past the nearby court complex. He said he had observed about three or four months earlier that officers within the court building were not armed. He described his knowledge of how a suicide vest might be set up for detonation. Images on his mobile phone, apparently downloaded from Internet sites, showed how to assemble and wire such a device.
9. AB walked with the offender to a parked motor vehicle. Another undercover operative with the pseudonym Ali, whom the offender believed was also a sympathiser, was waiting there. AB drove the offender, following his directions, to the vicinity of Timor Army Barracks.
10. During this car trip the offender was recorded on video as well as audio. These are some of the things he said: (1) … everything is based upon my intentions and my first and foremost intention, is obviously purely this is for the sake of Allah, but to weaken the forefront of the Kuffar. Why should we weaken them, so Islamic State has the advantage no doubt … (2) the first and foremost thing you have to make sure it's strategic, just like Paris and Brussels. … if you look at the way it was organised, the way the brothers Said and Cherif the ones from Al-Qaida, the ones who did the Charlie Hedbo attack, how strategic that was as well… (3) … I've driven past here [Timor Barracks] a lot and I've always … had this in mind. … They train here right in this yard and car park, they have a lot people stand out there. … on ANZAC day or whatever they have a lot of soldiers come there. Regularly they will be soldiers there that will come train kids on weekend … I've seen 20 of them before … 8 to 10 soldiers the rest are young teens. (4) … if I'm given a green light for an istishhadi … It would be, maximum fire. To fire as much as I can. … The way I was thinking about it akhi if I had a car as well, if I had something heavy duty, and I wasn't alone if I had someone with me I could maximise the results a lot. … Cause if [they're] not armed the first hit can be with a car a heavy duty car to take down as many and then and even if [they're] not armed it gives me time to start to get out of the car and start firing as well.
11. AB drove back to Parramatta and dropped the offender off. Throughout the car trip of about half an hour the offender spoke earnestly. His discussion of the logistics of killing as many people as possible was practical and direct. He revealed no compassion for the intended victims or for anyone connected with them. He spoke as a committed fanatic, beyond reason, empathy or humanity.
12. One of the undercover operatives arranged another meeting for the morning of Tuesday, 17 May 2016. During a 20 minute recorded conversation on that day the offender said: My motivation for this my thing for this doesn't come from watching Youtube videos or anything, it comes straight from the verses of Quran. I know a lot of brothers who get pumped by watching some Youtube videos, you know …, buts it's not coming from that akhi. It's coming straight from the verses of Quran. The [verses] of the Quran are clear. Everything is clear akhi, so I made this decision long ago that if I'm not able to fulfil it there, it's here. I regard that statement as of great importance to understanding this crime and to assessing the risk he poses to the community and his prospects of rehabilitation. I will return to it later in these remarks.
13. In the 20 minute conversation with AB and Ali on 17 May 2016 the offender also made these statements: (1) An istishadi operation is when you are actually sacrificing yourself for the greater good of the ummah [Muslim community] and the loss is less. … For example … there's … 50 kuffar … .To take them out and to make sure you do the most damage … for example you send a team of 12 people, there's a chance couple of them will be killed or maybe a few and there is a greater loss for the ummah. So if one goes in to take out all of them the loss is less and the result … the greater result is for the Muslims because you've taken out more kuffar. That's the advantage. So it is used as a battle strategy (2) … the whole point of this is to make the kuffar vulnerable to the state. … To weaken them, to break their pillars, that's it. Akhi we have seen what happened to Paris. Look at what happened to their governments, how weak did they become? … For an attack like this is taken in Australia … it would weaken the Australian government so much. So that's why I'm saying when I say maximum fire, I mean to take as many of them down as I can, and at the end when I see that there's too many I will take myself with them as well. … Akhi, I'm talking most crowded place something good, if we can get 50 plus that's amazing akhi. (3) [The offender said he was leaning towards the Parramatta court as his preferred target and he discussed using an assault rifle with a 30 round clip]. …the targets don't have to be police officers. Yeah they are the best of targets. But at the end of the day, we are still allowed to take the blood of the kuffar because they don't have the allegiance with the Islamic State. It's allowed akhi. … they've killed ours we will kill theirs. Even if there is an area where they are not armed, the results will be better because they won't be firing back. … Anyone that comes in my way when I'm at that stage … I'm gonna keep in mind it's happening for the sake of Allah. So I'm not going to stop firing. … If there's like a two month old baby, or someone holding a baby, I'm just trying to think if that's true, I wouldn't buckle in that situation akhi. No, I wouldn't buckle. There's no turning back akhi.
14. The offender acknowledged that he needed to do more planning. He expressed the expectation that once he had decided upon a target he would send a photograph of it to associates of the two men he was speaking with, to obtain advice on how to arrange his proposed attack. His conversation with AB and Ali ended at 9:55 am on 17 May 2016 when police arrested him.

The objective seriousness of terrorism planning offences in general

1. The gravity of the offence of planning and preparation for a terrorist attack is recognised by Parliament in the prescription of a maximum penalty of life imprisonment. Although actual physical injury to person or damage to property is not an element of the crime, significant harm of other kinds is inflicted on the community by offences of this nature. They give rise to a pervading public sense of exposure to a danger over and above the statistical background risk of violent interpersonal crime, accident and natural disaster. The danger of terrorist attack is one against which individual citizens necessarily feel it difficult to take precautions because the motivation of such offenders is an irrational religious fervour, unpredictable and incalculable.
2. A substantial factor in the public apprehension caused by an offence like the present is the knowledge that the offender is one of a number of people unified by common ideology and objectives. Through the statutory definition of "terrorist act" in s 100.1 of the Code it is inherent in the offence that the perpetrator acts in a "cause". Where, as here, the cause sought to be furthered is that of killing and intimidating non-Muslims to achieve Islamic domination under sharia in place of democratic constitutional government, it is only realistic to recognise that public anxiety is elevated by the significant number of similar offences that have been committed in Australia in the same cause. This enduring threat detracts from the quality of individual and community life. It has the potential to sow suspicion and to fracture society.
3. In making these observations I apply the following statement by Begg J in R v H (1980) 3 A Crim R 53 at 75: It is the judges' duty to reflect, in sentences passed by them, their beliefs as to the attitude of members of the public to the particular type of crime. They do this from their own experience and knowledge of human life. It is not a matter calling for inquiry on evidence.
4. The cost of providing protection for public buildings, transport systems and open spaces is substantial. That cost and the interference with freedom of movement which these measures entail are further aspects of the disruption of community life caused by such offences.

The objective seriousness of the offence in this case: s 16A(2)(a)

1. By s 16A of the Crimes Act I am required to take into account specified considerations relevant to the level of punishment appropriate to the offender. The first of them, s 16A(2)(a), is the nature and circumstances of the offence.
2. A consideration that contributes to the gravity of the planning and preparation offence in the present case is the scale of the intended attack: Fattal v The Queen [2013] VSCA 276 at [165]. I am satisfied beyond reasonable doubt, from the offender's own words, that he hoped to kill in the order of 50 people (see [41(2)]). He was aiming to cause as many deaths as one man, acting alone, could achieve. He did not intend to spare anyone who should be amongst the crowd at the chosen location, except any fellow Muslims (see [27] and [35]). Taking into account his demeanour, as shown on the video recording of his conversations in the undercover operatives' vehicle, I have no doubt that his true intent accorded with his spoken words. No evidence has been given or tendered by the offender to raise any doubt that he meant to do precisely what he said if not stopped.
3. A particular instance of this offence will not necessarily be reduced in seriousness by reason that the planning or preparation may not have reached an advanced stage: R v Lohdi [2006] NSWCCA 360 at [65]-[66], [229], [232]. The present offender's planning was advanced in the sense that by the date of his arrest he was fully committed to his project. He had carried out repeated surveillance on possible targets. He was at the end stage of selecting the location for his attack, procuring weapons and seeking detailed advice about how to make the attack most effective.
4. I accept as truthful his statement that he endeavoured to procure a Glock handgun (see [23] and [31]). He had learned how to make a bomb (see [17] and [23]) and he had sought guidance over the Internet on how to make a suicide vest ([23], [25]). He requested the undercover operatives to help him obtain an assault rifle ([32]) and a suicide belt. He proposed to seek religious approval for use of the latter (see [33] and [38(4)]). I am satisfied beyond reasonable doubt he would have gone ahead with his attack even if he could not have procured these more destructive weapons and/or obtained approval to attack in a way which would involve deliberate suicide. He expected imminent death ([18]) and at one point spoke of looking forward to dying. His intention to carry out an attack was not contingent upon procuring a suicide belt or religious approval for its use.
5. On behalf of the offender it was submitted that his talk of attempting to source weapons was "no more than bluster". I am not satisfied on the balance of probabilities that that is so. The offender's counsel listed steps which had not yet been taken and said that preparations were at a "low level and early-stage". The list included that the offender had not yet acquired a flag of the khilafah for propaganda, had not settled upon a target and intended to await orders (apparently from someone in the Middle East, by Internet). I recognise that more was to be done before the offender launched the attack but I do not accept the characterisation of "low-level and early-stage" preparations. For this individual terrorist, who did not depend upon others to commit or coordinate, the most important aspect of readiness was his own determination. That being in place, there were no insurmountable barriers to implementation. He expressed impatience to proceed.
6. In the passages I have quoted from the offender's discussions with undercover operatives he made explicit his intention of intimidating the public in order to advance Islam in a climate of fear and instability (see [25], [32] [38(1)] and [41(2)]). On two occasions he characterised his motives as a response to perceived wrongs done to Muslims. For example, he said "they've killed ours we will kill theirs" (see [25], [41(3)]). I am satisfied beyond reasonable doubt that in this he was merely adopting a posture of victimhood. In these conversations he never entered into discussion of any wrong he thought had been done to Muslims by Australians who would be killed in his attack. His only criterion was that his victims would be unbelievers.
7. The offender planned an attack not merely to attract attention to a specific issue concerning his religion. He aimed for complete overthrow of Australia's system of law and government and to replace it by Islamic rule under a caliph, according to sharia law. The unreality of his thinking that the country could be intimidated into abandoning democracy and surrendering the peace and freedoms which it preserves, in favour of his theocratic alternative, is a measure of the grip of the religious ideology upon his faculties.
8. The offender acted on his own initiative in making the plans and preparations which constituted this offence. The advancement of his plans under secrecy until he was discovered in May 2016 required dedication and discipline. He was careful to use an encrypted messaging application. By his own admission to the undercover operatives he avoided discussing with other people any aspect of what he planned. A significant number of images and articles associated with Islamic violence were found on his phone. It appears to have been the only subject in which he had any interest.
9. His stated reaction to the January 2015 terrorist attack on the Charlie Hebdo office in Paris (see [32]) is disturbing. The claim, apparently made in all seriousness, that that massacre inspired him to want to commit murders of his own suggests a complete loss of moral sense. He appears to have said this as an illustration of how his proposed terrorist attack might spur into action other "brothers who have been holding back or waiting".
10. In R v Touma [2008] NSWSC 1475 at [115] Whealy J considered that the violently intolerant views of the offender in that case "demonstrate graphically the serious character of the criminality involved". His Honour found that Touma had: a hatred of all those persons (Muslim and non-Muslim alike) who do not share extremist views. … a detestation of democratic government and social liberalism. … the notion that Muslims are obligated to pursue a violent form of jihad to undermine and overthrow liberal democratic societies and to replace them with Islamic rule and Sharia law.
11. The same may be said of the offender now before the Court. He has not offered in evidence any explanation or qualification of the objective circumstances of his crime which could mitigate its seriousness or reduce the danger to the community that he represents.

Character and antecedents: s 16A(2)(m)

1. Some of the offender's background has been summarised at [8]-[12]. Detail of his home life was provided in statements of two of his siblings. They portray him as a caring and well-loved member of his family. A school friend who now works in social services described the offender as "just an everyday person" and said he would never have considered him violent. This friend had discussed with the offender religious topics. It is apparent he was entirely unaware of the offender's hatred of unbelievers and desire to kill them.
2. In the sentencing proceedings the offender relied upon statements from the principal of Epping Boys High School and the school chaplain. He tendered a report of the school counsellor prepared in July 2015. This evidence sheds no light upon the development of the offender's Muslim fanaticism. He was evidently secretive about the detail of his beliefs. The school personnel showed open-mindedness and goodwill in dealing with the offender after his discussion of Islamic topics on campus had been reported to police. They endeavoured to support him to return to his studies.
3. On sentence it was submitted the evidence does not show the offender preached violent opinions at school in mid-2015. His counsel contended that accusations made against him at that time were not substantiated upon enquiry by the school and by police. It was submitted that "this had a very disruptive effect upon him and that the consequences of that carried through to the events" out of which the present charges against him have arisen.
4. I accept it has not been shown that he preached violence at school. I do not accept that the accusations against him in that respect caused distress or contributed to his plans in early 2016 to travel overseas or, later, to carry out a terrorist attack in Australia. I agree with the Crown that when speaking to undercover operatives in May 2016 the offender referred to the police investigation of his activities at school to enhance his credibility as a committed Islamic fighter.
5. A report of Dr Richard Furst, consultant forensic psychiatrist, dated 21 December 2017, records that the offender told him: I believed there was no fair go for young Muslims. The authorities were not releasing information on my innocence after the investigation. I was painted as a terrorist. That's what I became … I was going through pain and suffering [after the accusations made in mid-2015]. I felt rock bottom.
6. I reject the entirety of this statement. It is quite illogical to suggest that resentment concerning unproved allegations of violent preaching somehow caused him to plan an attack in the name of his religion which otherwise he would not have planned. The offender did not support this assertion from the witness box where it could have been tested in cross examination. I do not accept that he sincerely believed "there was no fair go for young Muslims". Allegations against him in 2015 of course had to be investigated. No charge was laid. His teachers supported his return to school.
7. Dr Furst's report incorporates history provided during a long consultation with the offender in custody, by audio-visual link, in early December 2017. The history includes that he had some confronting experiences on visits to Afghanistan in 2007 (at age 8) and again in 2012. On each occasion he stayed with an uncle who was "often drunk and abusive" and who beat him "for talking to girls on Facebook". He saw evidence that combat had taken place in the country, including injured people and damaged buildings. None of this appears to me to be of significance to his subsequent commission of the terrorist offence in Australia.
8. The offender consulted a General Practitioner in early 2014 and was commenced on medication. He told Dr Furst that he had been prescribed an antidepressant for about a month in late 2014. He said he had become "paranoid" in the second half of 2015 as a result of comments about him on Facebook concerning the investigation of his religious activities at school. To Dr Furst he described his contact with "people in Syria" from early 2016 as "reaching out" and "seeking acceptance and self-worth". He said these people "told him he had an obligation to do something [a terrorist act] in Australia and sent him teachings to that effect".
9. Dr Furst considered the offender's description of his own mental state was "suggestive of generalised anxiety" during his later school years. In custody he was found to have "persisting symptoms of anxiety" and to be "low in his mood but … not severely depressed". He appeared to Dr Furst to have "average intellectual function". The history he gave to Dr Furst suggests that in addition to anxiety the offender suffered mild depression and feelings of social isolation in his later school years. He perceived stigmatisation on account of his ethnic and religious background.
10. In KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22]-[26] McClellan CJ at CL drew together the principles to be applied in sentencing youthful offenders. These were recently restated by Bellew J in R v Khalid [2017] NSWSC 1365, with reference to a number of other appellate decisions on the subject: at [109]-[113]. Those authorities consistently treat the mitigating effect of the offender's youth as being diminished in proportion with the gravity of the crime.
11. In DPP (Cth) v MHK (a Pseudonym) [2017] VSCA 157 the Victorian Court of Appeal considered the penalty for a 17 year old offender who pleaded guilty to doing acts in preparation for, or planning, a terrorist act. The facts of the case are summarised at [124] below. Regarding the influence upon sentence of an offender's youth the court made these observations (at [66]-[67]): 66 As the authorities, to which we have referred, make plain, while youth is relevant in determining the weight to be given to general deterrence and denunciation in the sentencing equation, its weight is diminished, quite measurably, in cases such as this, in which a youthful offender either participates in, or plans to carry out, actions of extreme violence. The protection of our society, and the upholding of its most fundamental values, necessitate that in cases such as this the sentencing considerations of general deterrence and denunciation must be given primacy above the ameliorating effect of youth. 67 In the same way, while the potential rehabilitation of the respondent is an important sentencing factor, nevertheless, in a case such as this, it must give way, to a significant degree, to the requirements that the sentence be adequate so as to sufficiently express the court's and the community's repugnance at the actions and intentions of the respondent, and to deter other like-minded […] young people from embarking on, and proceeding down, the same pathway that the respondent chose to undertake. …
12. The offender was young and impressionable but at 18 years and 6 months he was old enough to know that he was planning something appallingly wrong. His youth is relevant to determining the level of his moral culpability for the purpose of fixing his sentence. Taking that factor into account, his culpability must still be assessed as very high. I find his subjective circumstances otherwise unremarkable. In summary, he had a stable and supportive upbringing and an educational environment which was sympathetic and constructive. He suffered from no mental impairment. I take into account that he has no criminal record.

Contrition and the offender's prospects of rehabilitation: s 16A(2)(f), (n)

1. In Elomar v R [2014] NSWCCA 303 at [820] the Court made this observation about Jamal, one of the appellants in that case who was 21 years old when he conspired to carry out an act in preparation for the commission of a terrorist act: In the absence of reliable evidence that Jamal had withdrawn from his extremist beliefs, the fact of his youth could have little weight in determining his prospects of rehabilitation.
2. In the sentencing decisions referred to at the end of these remarks ([94] to [126]) the question whether an offender has withdrawn from the beliefs which motivated his terrorist offence has consistently been treated as centrally important to determining prospects of rehabilitation, the need to protect the community and, hence, the appropriate level of sentence.

The offender's claimed basis of his beliefs

1. In his conversations with the undercover operatives the offender repeatedly referred to an "obligation" to carry out an attack (see [21], [25], [30], [35] and [40]) and spoke of killing unbelievers as a duty of his religion, as he understands it. It is now submitted on his behalf that he has taken steps towards rehabilitation and is willing to continue this. That cannot be judged without ascertaining where the ideas came from and considering what evidence there may be that he has rejected those sources. For the Court to have any confidence in his rehabilitation there would at least have to be evidence that he has opened his mind to disavowal of those verses of the Quran which he said provided his "motivation" for religious violence. The question is, can he be persuaded to a view of his religion which is compatible with civilised conduct in a community of mixed faiths and which involves respect for the existing framework of democratic government in this country?
2. The offender did not specify to undercover operatives which verses he regarded as "clear" in support of his plans (see [40]). On sentence, still, he did not nominate particular verses. Anyone familiar with the Quran can relate the beliefs he espoused to the Medinan suras. That is, chapters of the Quran dating from when Muhammad and his followers had established themselves at Medina after migrating from Mecca in 622 CE.
3. The Quran is readily available in English translation both online and in book form. It is in the public domain. Lists of Medinan and Meccan (earlier) suras are included by some translators and the chronological order of revelation appears to be well established. The chronological order is entirely different from the traditional sequence in which the suras appear in the Quran, where they are numbered and arranged (with exceptions) according to length of text, from longest to shortest.
4. Verses concerning hostility to unbelievers appear particularly in suras 8, 3, 33, 4, 49, 61, 48, 5 and 9 (in that chronological order, all from the Medinan period). They are expressed as instructions from Allah to the believers, not as mere parable or history. They include that fighting of unbelievers should continue until "the religion will be all for Allah alone" (8:38-39). Verse 9:5 directs that polytheists and idolaters should be killed. Verse 9:29 is a command to fight unbelievers until they pay "the jizyah", a poll tax to signify submission. Language of violence and combat, not of proselytising or persuasion, is used in the Medinan suras (for example 8:59-60, 9:123). The expression "fight in the cause of Allah" appears repeatedly (for example 4:74, 61:4, 61:11). Some verses in these suras promise the highest rewards for such fighting (4:95, 4:96). Martyrdom is praised (3:143, 3:157, 3:169-172). The offender's perception that he was under an "obligation of jihad" (see [42]) show, to my mind beyond doubt, that verses of the Medinan suras are the ones he drew upon. The ideas he expressed of religious violence, martyrdom and Muslim supremacism correspond closely with these parts of the Quran.
5. To a non-Muslim these parts of the Medinan suras are confronting. It should be clear the Court does not ascribe to Australian Muslims generally an acceptance of the verses referred to. The great majority of Muslims living in Australia give no indication whatever of abiding by purported instructions from Allah to pursue religious violence. They are able to observe other aspects of Islam, such as faith, prayer, alms-giving, fasting and pilgrimage, peacefully. The offender believes that the militant instructions of Allah in these verses are valid and binding upon him even in the present day, to the point that he is willing to implement those commands by an attack such as he planned. He is one of a very small minority in this. I repeat what I said on more than one occasion during the sentence hearing (transcript 33 - 44): The Muslim religion is not on trial here. I am not determining what any other Muslims believe. … [M]ost Muslims are quite capable of living at peace with the unbelieving population of Australia. … [T]hat is demonstrably so and it is not an issue in this case.
6. Earlier revelations, in suras of the Meccan period and in a verse of Sura 2 (the first sura from Medina), are in terms more conciliatory to unbelievers. Verse 2:256 contains the words "There is no compulsion in religion" and is often referred to as approving tolerance. Publications concerning the religion, including explanations of the Quran by Islamic scholars, identify a principle of abrogation based upon verse 2:106, to the effect that verses believed to have been revealed later in Muhammad's life abrogate earlier ones. If the offender has thought at all about parts of the Quran which run counter to the Medinan suras he presumably considers that the conciliatory parts are either abrogated by the later-revealed violent passages or in some other way negated.
7. What is conspicuously lacking from the offender's case on sentence is any evidence that he has received and is at least willing to consider an authoritative refutation, from within the scholarship of his own religion, of the verses of the Quran in which he found justification for planning a terrorist attack. In his devout frame of mind it would seem that only a disavowal of those verses by respected Islamic scholars or clerics would have any prospect of causing him to change his own view of Muslim scripture.

Evidence regarding the offender's withdrawal from his beliefs

1. Tamim Khaja's intolerance of non-Muslim people and institutions in Australia has been exhibited over several years. He was already preoccupied with inconsistency between Islamic religious rules, on the one hand, and democracy and social liberalism in Australia, on the other hand, in late 2013 (see [9]). The only evidence purporting to show that he has moved away from the belief in religious violence which he held in May 2016 is the report of Dr Furst. The doctor has recorded the following statements made by the offender when giving his history (emphasis added): At the time, I believed ISIS was justified on religious grounds. I had no religious background to challenge their teachings. [His actions and ISIS affiliation were] a cover up for the personal problems I didn't get help for. I now feel sad for others who might be vulnerable to the influence of ISIS because of personal problems they are going through. I denounce the actions I did. I'm a Muslim. As a Muslim, I believe in Jihad, but ISIS is far from those beliefs. … I denounce any allegiance to ISIS. I don't hold extremist beliefs now.
2. The offender also told Dr Furst he was motivated to engage in a prison program which is "aimed at de-radicalisation". He said he had been seeing on a regular basis the imam who visits the gaol where he is held and that from this person he has received "teaching and guidance". The content of this teaching has not been tendered in evidence in any form. Prison records confirm that the offender has received visits from an imam. Dr Furst was told by the offender that he has renounced "ISIS allegiance".
3. Little weight can be given to any of these statements. The accused did not give evidence regarding his present state of mind and belief and I treat assertions conveyed through Dr Furst with considerable caution: R v Qutami [2001] NSWCCA 353 at [58] (Smart AJ). Apart from their second hand character they are extremely non-specific. Further, I find it disingenuous that the offender claims to disown IS but says nothing to disavow the verses of the Quran which in early 2016 he found "clear" in their prescription of a duty to kill non-believers. Far from reconsidering those verses he maintains that "As a Muslim, I believe in Jihad" (see [79]). Consistently with his usage of the word "Jihad" throughout his conversations with undercover operatives, this indicates that nearly two years on from his arrest he has not moved from the religious belief which underlay the offence to which he has pleaded guilty.
4. Under questioning by Federal Agents at the airport on 27 February 2016 the offender professed religious disapproval of IS (see [14]). As the Court now knows, at that time he harboured a strong belief in Islamic violence. Taking into account his history of dissembling on this critical subject I am not satisfied that anything has changed or has any foreseeable prospect of changing.
5. The offender did not call the prison imam. Neither from him nor from any other source has there been any attempt to show that the offender can be offered cogent religious instruction that the verses upon which he relied are cancelled and that killing non-Muslims and destruction of democratic government are not decreed by Allah. Still less was there evidence that he is receptive to any such alternative religious doctrine.
6. Although it was rightly pointed out that the offender is well supported by his family, with numerous prison visits, nothing was led from family members as to any discourse they may have had to disabuse him of his understanding of the scripture or as to a favourable response from him.
7. These considerations are particularly important because the offender does not just believe that the ends of his religion justify violent means. He regards violence against unbelievers as a religious end in itself. In lieu of any meaningful address to the issue of how he is to be turned away, doctrinally, from his belief that attacking unbelievers is a sacred duty, he has offered only untested statements about participating in a "de-radicalisation" program conducted by Corrective Services (as described in the affidavit of Mr Barracosa, a senior psychologist). His certainty about the meaning of the scripture was strong enough to motivate his making of the ghastly plans to which he has pleaded. There is no basis in the evidence before the Court to expect that he can be persuaded from this certainty by psychologists and counsellors in the prison system.

The plea of guilty: s 16A(2)(g)

1. The offender's plea of guilty was entered at the last possible moment before a jury would have been empanelled to try him. I do not infer from the plea an acknowledgement of wrongdoing or an expression of remorse or contrition. Having regard to the offender's explicit contempt for Australian laws and for the people of this country other than Muslims and taking into account his professed deep religious conviction that he was justified in planning a mass killing of Australian civilians, an acknowledgement of wrongdoing and demonstration of remorse or contrition would only be credible if it came from the offender directly in oral evidence. That would allow his claimed change of beliefs to be tested in cross-examination and evaluated. I am not satisfied of this, on the balance of probabilities, by information provided second hand through Dr Furst.
2. I conclude that the offender's plea of guilty was no more than an acceptance that conviction was inevitable. The Crown case against him was overwhelming. Two weeks before the trial was to commence a full day was occupied with pre-trial applications for orders to ensure that the Crown's evidence could be given without compromising police methods and sources. Once those orders had been made the trial was fully ready to proceed. The decision in Xiao v R [2018] NSWCCA 4 requires that when determining what if any discount on sentence should be allowed for a plea of guilty the Court should take into account the utilitarian value of the plea. On that basis, and with no other ground upon which to allow a discount, I will allow a reduction of 12 months to reflect the offender's eleventh hour plea.

Personal and general deterrence: s 16A(2)(j) and (ja)

1. In R v Touma Whealy J said (at [80]): The broad purpose of the creation of offences of the kind involved in this sentencing exercise is to deter the emergence of circumstances which may render more likely the carrying out of a terrorist act. It is to punish those who contemplate action of the prohibited kind. It is to denounce their activities and to incapacitate them so that the community will be protected from the horrific consequences contemplated by their actions. The legislation is designed to bite early, long before the preparatory acts mature into circumstances of deadly or dangerous consequence.
2. At [81] his Honour quoted with approval the following passage from the judgment of the Court of Appeal for England and Wales in R v Barot (2007) EWCA Crim 1119 at [45]: Terrorists who set out to murder innocent citizens are motivated by perverted ideology. Many are unlikely to be deterred by the length of the sentence that they risk, however long this may be. Indeed, some are prepared to kill themselves in order to more readily kill others. It is, however, important that those who might be tempted to accept the role of camp followers of the more fanatic, are aware that, if they yield to that temptation, they place themselves at risk of very severe punishment. Punishment is the other important element of the determination of the sentence for offences such as this.
3. In Lohdi v R [2007] NSWCCA 360 Spigelman CJ made these observations at [108] and [109]: 108 In the context of the crimes presently under consideration, incapacitation does not merely refer to the prospect that in the future a particular offender will re-offend. With respect to the crime of preparation for terrorist acts the Court is not simply concerned with future criminal conduct of a recidivist character. It is concerned with the possibility of perfection of the very crime for the preparation of which the offender has been found guilty. 109 Accordingly, the issue is not merely one of punishing an offender for something s/he may do in the future. It is the recognition that the protection of society requires the offender to be prevented from perpetrating the offences which s/he was preparing to commit. Giving the element of protection of society substantial weight, particularly in a context where personal deterrence and rehabilitation are, given the nature of the offence and the findings of fact, entitled to little weight, is consistent with the principle of proportionality laid down in Veen v The Queen (No 2) (1988) 164 CLR 465.
4. In the absence of a realistic prospect that he will abandon his religiously based hatred of non-Muslim Australians and the country's democratic institutions, the Court can only proceed upon the basis that he is likely to remain a danger to the community upon his release. Personal deterrence remains a strong consideration although from the present perspective it must be doubted he will be personally deterred by whatever punishment may be given. General deterrence and, particularly, incapacitation are strongly influential factors in the determination of sentence in the present case.
5. Under the following heading is a survey of significant terrorist offences committed in Australia during the past 15 years. In all of these cases the "cause" underlying the offence, although described by the courts in a variety of ways, has been that of furthering Islamic ideology by force and fear through indiscriminate killing of non-Muslims. Prevalence of offending is a concept which is relative to the type of offence concerned. The same number of assaults recorded over a decade and a half would not make assault a prevalent offence. But this concentration of offences of a type aimed at general disruption of public order and of government, all in furtherance of the same cause, warrants the description "prevalent".
6. This requires that significant weight be given to the need for general deterrence, notwithstanding the offender's youth: R v Sharma (2002) NSWLR 300; [2002] NSWCCA 142 at [74] (Spigelman CJ). A strong measure of general deterrence has already been reflected in past sentencing decisions for offences of this type, to which I have regard in order to treat the present offender consistently. The question whether there has been an increase in the frequency of commission of these crimes was not the subject of submissions on sentence and in any event would be a matter best reserved for the Court of Criminal Appeal: R v House [2005] NSWCCA 88 at [23]-[24]. See also Wootton v R [2014] NSWCCA 86.

Significant past cases of terrorism in Australia

1. In October 2003 Faheem Lohdi (36 years old at the date of the offences) acquired maps of the Sydney electrical distribution system for the purpose of planning an attack on its infrastructure and a chemical supplier's pricelist of materials suitable for making a bomb: see Lohdi v R [2007] NSWCCA 360. He prepared a 15-page handwritten manual for the manufacture of poisons, explosives and incendiary devices. He was arrested in April 2004. Lohdi was convicted after trial on two counts under s 101.4(1) of the Code of collecting documents connected with preparation for a terrorist attack (the maps of the electrical distribution system and the 15-page manual) and one count under s 101.6 of planning and preparation for a terrorist attack (acquiring the chemicals pricelist).
2. For all offences the sentencing judge found Lohdi's purpose was "to advance the cause of violent jihad" (see the judgment of Barr J in the Court of Criminal Appeal at [116]). It was not established that he had intended himself to be the perpetrator of the attack, nor that he had fixed upon a precise target. The offences were preliminary to an attack on property rather than upon people, although it was found Lohdi would have been aware of the risk of inflicting death or injury.
3. Lohdi, a devout Muslim, was sentenced on the basis he had not renounced his "deeply fanatical, but sincerely held, religious views" and that he maintained a general intention relating to terrorist activities at least up until his arrest: [224]). He was sentenced for the s 101.6 count to 20 years with a non-parole period of 15 years. Ten-year sentences on each of the other counts were ordered to be served concurrently.
4. Between May 2005 and 8 November 2005 nine offenders were concerned in a conspiracy to equip themselves to carry out a terrorist attack involving the detonation of one or more explosive devices and/or the use of firearms: see Elomar v R [2014] NSWCCA 303. They amassed an armoury of weapons, large volumes of ammunition, laboratory equipment and chemicals suitable for the manufacture of explosives. They were in possession of documents showing how to make and detonate improvised explosive devices. It was not proved that a precise terrorist act had been decided upon or that a particular perpetrator or perpetrators had been nominated.
5. The purpose of the planned attack was "to instil terror and panic in the Australian community, and to force the Australian government to change its alliances and foreign policies": [18]. Each of the participants was, or perceived himself to be, "a devout adherent of the Muslim faith. Each could properly be called a fundamentalist or extremist": [17]. The conspirators held a large volume of literature regarding jihad and martyrdom events taking place around the world and encouraging violence by Muslims against unbelievers, to achieve Islamic domination and to impose sharia. This literature quoted from and paraphrased verse 9:29 of the Quran (see [86] of the Court of Criminal Appeal's judgment) and verses 4:84 and 8:39 (see [96]).
6. Five of the nine offenders were convicted after trial of conspiracy to do acts in preparation for a terrorist attack, charged under s 11.5 of the Code and punishable by the same maximum sentence as for the substantive offence they had conspired to commit (s 101.6). The remaining four were dealt with on pleas of guilty to substantive counts.
7. The sentencing judge found that the criminal enterprise fell "not far short of the most serious case". The conspirators were all sentenced on the basis they had not renounced their beliefs in the Islamic obligation of violence towards unbelievers and that they had poor prospects of rehabilitation. The sentences varied primarily according to each offender's degree of participation in the conspiracy. They were not disturbed on appeal: 1. Mohamed Ali Elomar (40 years at the time of the offence) played a coordinating role and was the oldest of the conspirators: 28 years with a non-parole period of 21 years. 2. Khaled Cheikho (32 years old) coordinated the acquisition of about 8,000 rounds of ammunition suitable for use in an AK-47 assault rifle and assisted with concealment when concern about surveillance arose. He continued to have an attitude of "absolute contempt for the Australian government and its laws" and an "extremist conviction that Sharia Law should rule, even in this country": 27 years with a non-parole period of 20 years and 3 months. 3. Abdul Rakib Hasan (36 years old) assisted in the acquisition of laboratory equipment to facilitate the manufacture of explosives and ordered substantial quantities of chemicals for the same purpose: 26 years with a non-parole period of 19 years and 6 months. 4. Moustafa Cheikho (28 years old) undertook preliminary steps in the manufacture of detonators for explosives and assisted in attempts to conceal the conspirators' accumulated materials in November 2005 to defeat surveillance. The sentencing judge found no evidence of him "stepping back from the clear extremist views he has held for some time with great firmness and conviction" and that he was likely to remain a danger to the community even on his release: 26 years with a non-parole period of 19 years and 6 months. 5. Mohammed Omar Jamal (21 years old) was involved with Hasan and another in acquiring large quantities of chemicals to be used in the manufacture of explosives: 23 years with a non-parole period of 17 years and 3 months.
8. The remaining four were dealt with on pleas of guilty to substantive counts. 1. Mazen Touma (25 years old) acquired substantial quantities of ammunition (one count under s 101.6 of the Code), attempted to make an improvised explosive device in preparation for a terrorist act (a second count under s 101.6) and held materials for bomb making and literature espousing Islamic violence (two counts under s 101.4(1)): 14 years with a non-parole period of 10 years and 6 months. A discount of 25% was allowed for the plea of guilty. The plea caused the sentencing judge to accept "that he has moved away from, or is in the process of moving away from, such a fanatical and extremist position". A "moderate allowance" was therefore made to reflect remorse, contrition, acceptance of responsibility and that "although the community may still require protection, this is at a lower level than might have been otherwise, were it not for the plea": R v Touma [2008] NSWSC 1475. At [16] the judgment quotes an intercepted conversation in which Touma spoke of the obligation of all Muslims to fight infidels. In another conversation quoted at [20] he paraphrased verse 3:60. 2. Mirsad Mulahalilovic (29 years old) pleaded guilty to a single count of possession of a small quantity of firearm ammunition connected with the preparation for a terrorist act or acts, being reckless as to the connection (s 101.4(2)). Mulahalilovic was sentenced to imprisonment for 4 years and 8 months with a non-parole period of 3 years and 6 months. A discount of 10% was allowed for the plea. The trial judge was "not satisfied beyond reasonable doubt … that the offender believed that a significant aspect of the fulfilment of the obligation to defend Islam was violent jihad involving the application of force and violence. … Rather, I consider that he was on the edge, on the brink of, being drawn into a more extremist position". His Honour took the plea of guilty as "a cautious indicator that the defendant has abandoned his interest in the possibility of embracing more extremist notions" and made "a moderate allowance" for its possible indication that he might not be a danger to the community upon release. R v Mulahalilovic [2009] NSWSC 1010. 3. Omar Baladjam was sentenced, in respect of four counts similar to those against Touma, to 18 years and 8 months, with a non-parole period of 14 years: R v Baladjam (Supreme Court (NSW), Whealy J, 7 April 2009, unrep). 4. Khaled Sharrouf was sentenced on one count for the possession of six clocks and 40 batteries connected with preparation for a terrorist attack (s 101.4(1)). His sentence was greatly reduced by a 25% discount for his plea of guilty, by the consideration that he was found to have suffered from schizophrenia with psychotic and delusional symptoms at the time of the offence and on the sentencing judge's assessment that he had reasonable prospects of rehabilitation. (Subsequent notorious acts on his part, in Syria, showed that these prospects were not realised). The sentence was 5 years and 3 months with a non-parole period of 3 years and 11 months: R v Sharrouf [2009] NSWSC 1002.
9. Between July 2004 and November 2005 twelve men committed an offence against s 102.3(1) of the Code by being members of a terrorist group: Benbrika v The Queen [2010] VSCA 281. They were convicted after trial, some of them also being found guilty of other terrorism offences. A thirteenth offender was separately convicted of terrorism offences. All of them were associated as a group based in Melbourne led by Benbrika. They swore allegiance to him, contributed cash to a fund which he expended on the group's purposes and accepted his religious instruction concerning violence against unbelievers. Benbrika was about 45 years old at the time of the offences and all of the others were in their early to mid-20s. The group conducted training camps. The ultimate objective of the organisation was to commit a terrorist act. The court was satisfied that "it would surely have done so had it not been shut down": [565].
10. In a covertly recorded conversation Benbrika said to one of the conspirators (and to Khaled Sharrouf) (see [521] of the Victorian Court of Appeal's judgment): If we want to die for jihad we do maximum damage … . Damage their buildings with everything, and damage their lives, just to show them. (There was evidence in Elomar v R and in Benbrika v The Queen that the New South Wales and Victorian groups had interacted).
11. Benbrika said in a televised interview in August 2005 that Australian laws which require citizens "to let other people of religions live side-by-side, respect them and not to express anything bad or hate against them" were "hundred percent … very bad" (see Elomar v R at [143]). He said: I am telling you that my religion doesn't tolerate other religion, it doesn't tolerate.
12. The charge of being a member of a terrorist group (s 102.3(1)) carried a maximum penalty of only 10 years. Most of the substantive counts for which the members of the Benbrika group were sentenced were of making funds available to the organisation or attempting to do so or possessing things connected with preparation for a terrorist attack. The maximum penalties for those offences vary according to whether the offender knows the recipient of funds is a terrorist organisation or is merely reckless as to this and whether he or she knows or is merely reckless regarding the connection between the thing possessed and a terrorist act. The maxima for the various counts in Benbrika v The Queen ranged between 10 and 25 years so that the sentences actually passed are not suitable comparators for the present case.
13. The sentences passed were all below 10 years but the Victorian Court of Appeal subsequently made the following observation in DPP (Cth) v Besim [2017] VSCA 158 at [121]: In [re-sentencing Besim], we are of course aware that in Benbrika v The Queen significantly lower sentences were imposed for the very serious terrorism offences there committed. Those sentences may have been regarded as within range at the time. However, having regard to the scourge of modern terrorism, and the development of more recent sentencing principles in this area, they seem to us to have been unduly lenient. No such sentences would have been imposed today.
14. Between February and August 2009 three men based in Melbourne conspired to do acts in preparation for a terrorist act, namely an attack on the Australian Army Base at Holsworthy in New South Wales, to shoot and kill as many soldiers and other persons at the barracks as possible: Fattal v The Queen [2013] VSCA 276. The charge was laid under ss 11.5 and 101.6 of the Code. The first of the conspirators reconnoitred the barracks to assess them for vulnerability to the proposed attack and passed on his observations to a second conspirator, together with encouragement that he proceed with the mission. The role of the third conspirator was to assist the second in the attack and to obtain from him a fatwa from a mufti approving it.
15. The Victorian Court of Appeal summarised the objective of the conspirators as follows (at [78]; see also [84]): the conspiracy was entered into and … the overt acts were carried out for the purposes of advancing Islam by the violent means of staging an armed suicide attack on personnel in or about the entrance to Holsworthy Barracks.
16. Each offender was sentenced to 18 years with a minimum term of 13 years and 6 months. Severity appeals and a Crown appeal against inadequacy were dismissed. It was not established that any of the offenders had recanted from the religious views which informed their participation in the conspiracy.
17. Over six weeks in November and December 2014 six young men in Sydney engaged in acts and discussions with a view to carrying out a terrorist attack: R v Khalid [2017] NSWSC 1365. Three of them pleaded guilty to conspiracy to do acts in preparation for an act of terrorism (ss 11.5 and 101.6). One of them was dealt with at the same time for substantive offences under the Firearms Act 1996 (NSW). Two were sentenced, also at the same time, on their pleas of guilty to offences of making a document connected with preparation for a terrorist attack (s 101.5(1)). One offender was sentenced by Bellew J separately on a single count under s 101.5(1): R v Ghazzawy [2017] NSWSC 474. The youngest of this group was IM, aged 14 years at the time of the criminal conduct. The others ranged in age between 19 years and 22 years.
18. The three who pleaded to conspiracy were Sulaymah Khalid, Jibryl Alamouie and IM. Khalid was the leader and gave religious advice to the others on the Islamic justification for violence against unbelievers. Jibryl Alamouie was a senior member of the group. He obtained three firearms and a quantity of ammunition. IM sourced four weapons, in the possession of his uncle, which he proposed should be taken for the group's use without the uncle's knowledge or consent.
19. Ghazzawy contributed to discussion of targets, including the Australian Federal Police building in Sydney, the Lithgow Gaol and civilians and police who could be attacked in guerilla warfare to be conducted from the Blue Mountains. The documents on which he was prosecuted recorded these plans. Mohamed Al Maouie and Farhad Said both attended meetings and contributed to the planning of targets. They were prosecuted for possession of documents setting out the plans.
20. The members of the group had a number of meetings to discuss the commission of a terrorist act and they exchanged many crudely coded telephone messages on the subject, with encouragement to one another to proceed. Their activities continued until arrests were made in December 2015. The cause to be advanced by the offenders was described in an agreed statement of facts before the sentencing judge as: that of violent jihad. The essential feature of the cause, which the conspirators believed to be a religious obligation, was to engage in violence to advance what they considered to be the interests of Islam. They believed Islam to be under attack from various Western countries, in Syria and the Middle East, and also in Australia. They also believed that those who died pursuing violent jihad were martyrs, who would be rewarded in paradise.
21. The evidence on sentence included a video made by Khalid in which he warned those who reject Islamic teachings that they would "regret it" and have their faces "dragged through the pits of hell fire". He demanded that "the chains and shackles of democracy" be rejected in favour of sharia. Other evidence showed that he was secretive about these views and presented quite a different face to non-Muslim acquaintances.
22. All sentences fixed by Bellew J allowed a 10% discount for the pleas of guilty, except that for Ibrahim Ghazzawy who was allowed 15%. With respect to each offender the sentencing judge was cautious about prospects of rehabilitation and about renunciation of violent ideology. The following sentences were imposed for conspiring to do acts in preparation for a terrorist act: 1. Khalid: 22 years and 6 months with a non-parole period of 16 years and 9 months. 2. Jibryl Almaouie: 18 years and 10 months with a non-parole period of 14 years and 2 months. This would have been one year longer but for the need to structure the sentence around sentences for the firearm charges (see [6]-[8] of Bellew J's judgment). 3. IM: 13 years and 6 months with a non-parole period of 10 years and 1 month.
23. The sentences for intentionally making a document connected with the preparation for a terrorist act, knowing of the connection (s 101.4(1)) were: 1. Mohamed Al Maouie: 9 years with a non-parole period of 6 years and 9 months; 2. Farhad Said: 9 years and 6 months with a non-parole period of 7 years and 1 month; 3. Ibrahim Ghazzawy: 8 years and 6 months with a non-parole period of 6 years and 4 months.
24. In January and February 2015 two Sunni Muslim offenders planned to firebomb a Shia prayer hall in Sydney. They acquired materials and instructions for making an improvised explosive device and bought a hunting knife with which to execute a victim at the scene of the attack: R v Al-Kutobi [2016] NSWSC 1760. They pleaded guilty to having conspired to commit acts in preparation or planning for a terrorist act (ss 11.5 and 106.1). The attack on the prayer hall and on Shia individuals was intended to be in furtherance of the offenders' Sunni belief that Shia Islam is a perversion.
25. The offenders were in contact with an adherent of IS in Syria and received encouragement from him. They purported to pledge loyalty to IS. They made a video recording of a message explaining the proposed attack as revenge for "our brothers and sisters and mothers and fathers in the land of Caliphate". The offenders envisaged they would die in the attack and they were only hours away from carrying it out when arrested. Both were in their mid-20s. One gave evidence of having recanted from his support for religious violence but it was uncorroborated and unsatisfactory. Garling J allowed a discount for their pleas of guilty in the order of 17.5%: [192]. His Honour was unable to form any view about prospects of rehabilitation. They were each sentenced to 20 years with a non-parole period of 15 years.
26. In March and April 2015 an 18-year-old Islamic terrorist in Melbourne planned and made preparations for the killing and beheading of a police officer at the ANZAC Day 2015 commemorations: DPP (Cth) v Besim. Upon killing the officer he planned to seize his service weapon and kill as many others as he could in the immediate vicinity before being killed himself. He pleaded guilty to carrying out acts in preparation for, or planning, a terrorist act contrary to s 106.1.
27. Besim's parents were of Albanian background and he was brought up in the Muslim religion. In year 10 he had commenced to attend an Islamic Centre where he was exposed to "extremist, hate filled thinking from older, hateful but charismatic individuals": [11]. He "reached the point of believing that violent jihad against all non-Muslims was justifiable": [12]. He was a close friend of Numan Haider who attacked two officers with a knife at Endeavour Hills police station in Victoria on 23 September 2014 and was shot dead. Besim had been with Haider in the hours leading up to those events: [14].
28. Soon after Haider's attack and death Besim attempted to obtain a passport with a view to travelling to Syria to fight with IS. He viewed on the Internet IS propaganda encouraging attacks by Muslims on citizens of Western countries. He was frustrated in his attempt to obtain a passport and turned his attention to a local attack. His communications by Internet with a person in the United Kingdom, who encouraged him, revealed a bloodthirsty attention to detail in his plans. He expressed hatred for the unbelievers of the Australian community and a desire to create fear in a way which would be remembered, by murdering a law enforcement officer on ANZAC Day. He hoped to kill at least five people. He expressed excitement at the prospect of being killed in the course of these acts and entering Paradise.
29. Besim created on his mobile phone a declaration of his purposes, evidently intended to be read after his death. He quoted in full verse 8:69 (Allah's instruction to Muslims to prepare for war against "the enemies of Allah") and cited verse 3:169 (concerning martyrdom).
30. The court upheld a Crown appeal against inadequacy. It resentenced Besim taking into account that there was no evidence to raise a doubt that he would have proceeded if not stopped by his arrest. It was found he had not discharged the onus, which rested upon him, of showing he had abandoned jihadist views. Besim was resentenced to 14 years with a non-parole period of 10 years and 6 months. The court indicated that but for his plea of guilty this would have been 19 years with a non-parole period of 14 years and 3 months. That is, a discount of slightly over 25% was applied.
31. In April and May 2015 a 17-year-old offender planned and prepared to build a bomb and to detonate it in a populated area of Melbourne for the purpose of furthering the cause of IS: DPP (Cth) v MHK (a Pseudonym) [2017] VSCA 157. He had ceased attending school in early 2015. During the preceding 12 months he had absorbed IS propaganda distributed over the Internet. He wished to travel to Syria "to fight on behalf of Sunni Muslims" (see the Victorian Court of Appeal's judgment at: [15]) but realised he could not do so because he would need his parents' approval. Instead he was encouraged over the Internet, by a jihadist in Birmingham, United Kingdom, to commit a terrorist act in Melbourne. This person sent him information regarding how to make a bomb and how to deploy it to cause maximum death and injury. MHK purchased the necessary components including boxes of screws to serve as shrapnel.
32. MHK's family had been "observant, but not strict, adherents to the Sunni Muslim faith": [13]. He had "turned increasingly to his Islamic faith" from the age of 16, when he commenced to experience feelings of inadequacy and social anxiety. He had withdrawn from social contact. His secretive communications with those who were encouraging him revealed "total callousness" and were "devoid of any sense of conscience about the human tragedy and suffering that he was planning to inflict in the midst of the community of which he was a member": [64]. The court found no evidence of any hesitation with respect to implementing his plan and, up to the sentence hearing, no significant contrition. There was some evidence of MHK at least commencing to renounce his violent ideas and moving towards rehabilitation: [16]-[32].
33. MHK was resentenced to 11 years with a non-parole period of 8 years and 3 months. The court stated that this would have been 16 years with a non-parole period of 12 years but for his plea of guilty, indicating a discount applied of 31%.
34. In summary, over 13 years between 2003 and 2016 no less than 34 men (including the present offender) engaged in eight separate plans, either in groups or as individuals, to carry out individual or multiple attacks on non-Muslim Australian citizens in furtherance of Islamic objectives. This does not include the attack planned by Al-Kutobi and his co-conspirator, in which the religious cause was that of one branch of the Muslim religion against another. If account is taken of the attack actually carried out by Haider on police at Endeavour Hills in September 2014 and the murder of Curtis Cheng at Parramatta on 2 October 2015 (considered in the judgment of Johnson J in R v Alou [2018] NSWSC 221 - handed down the day before this decision), the number is nearer to 40 jihadists involved in ten separate plans. This is what I have referred to at [92] as the prevalence of such offending. I disregard allegations of more recent plans and preparations, also said to have been directed to the Islamic cause, which have not yet been brought to trial.

Consistency

1. With a view to arriving at a sentence consistent with the treatment of other terrorist offenders I have considered the decisions cited at [94]-[126], making due allowance for varying levels of objective seriousness, differing subjective characteristics of the offenders and variance in the sections under which charges were laid.

Account taken of the foreign incursion offence

1. In applying s 16BA of the Crimes Act I am to sentence the offender only for the primary offence to which he has pleaded guilty and not for the foreign incursion offence which he has separately admitted: Le v R [2017] NSWCCA 26 at [56]. Upon full consideration of the facts surrounding his attempt to travel to Syria to take part in hostilities there I do not consider that the circumstances warrant a higher penalty for the primary terrorism planning offence than that which would have been appropriate if the latter offence stood alone.
2. Both offences were born of the same religious fanaticism. They were separate manifestations of it. They occurred within about three months of each other. The two offences do not reflect a repetitive or recurrent course of organised criminal activity. In that respect there is a contrast with, for example, cases of multiple housebreaking or successive drug importations. The terrorism planning offence is by far the more serious in its level of threat to the Australian public and in the offender's criminal intent.
3. I consider that the criminality of the terrorism planning offence comprehends that of the admitted foreign incursion offence to a degree which does not warrant increase of the sentence above what would have been imposed if s 16BA had not been engaged. When the foreign incursion offence is taken into account it does not indicate that any greater influence should be accorded to personal deterrence, retribution, denunciation or any other factor in fixing the sentence for the primary terrorism planning count.

Sentence

1. I am satisfied that no sentence other than one of imprisonment is appropriate in all the circumstances of the case. The offence is not in the worst category of what may be committed in contravention of s 101.6(1) and a finite term of years should be imposed. I take into account that the offender's incarceration will be under high security, with limited association and, at least in the short term, without access to training or education programs.
2. The sentence is as follows: 1. For the offence of doing acts in preparation for, or planning, a terrorist act between 11 May 2016 and 18 May 2016 at Sydney, Tamim Sahil Khaja is sentenced to imprisonment for a period of 19 years, commencing on 17 May 2016 and expiring on 16 May 2035. 2. A non-parole period of 14 years and 3 months is fixed, commencing on 17 May 2016 and expiring on 16 August 2030. Tamim Sahil Khaja will be eligible for release on parole at the expiration of 16 August 2030. 3. Pursuant to s 105A.23 of the Criminal Code (Cth) the offender is warned that an application may be made for an order requiring his continued detention after the completion of his sentence.

Amendments 04 September 2018 - typographical error in [98] 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: 04 September 2018