R v Khaled Khayat; R v Mahmoud Khayat

Judgment

On 18 March 2019 a single indictment was presented which charged Khaled and Mahmoud Khayat that they: "Between about 20 January 2017 and about 29 July 2017 at Sydney in the State of New South Wales and elsewhere, did conspire with each other and divers others to do acts in preparation for, or planning, a terrorist act (or acts)."
The maximum penalty for an offence of conspiring to do acts in preparation for a terrorist act or acts contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cth) is life imprisonment.
Following a trial by jury, Khaled Khayat was found guilty of the charge on 1 May 2019. As the jury could not reach a unanimous verdict in respect of Mahmoud Khayat, the jury was discharged on 3 May 2019.
On 20 August 2019 a further indictment was presented which charged Mahmoud Khayat as follows: "That he between about 20 January 2017 and about 29 July 2017 at Sydney in the State of New South Wales and elsewhere, did conspire with Khaled Mahmoud Khayat and divers other to do acts in preparation for, or planning, a terrorist act (or acts)."
On 19 September 2019, following a trial by jury, Mahmoud Khayat was found guilty of the charge.
Where referred to collectively, Khaled and Mahmoud Khayat will be referred to as "the offenders" or by their first names when referred to individually.
The offenders are to be sentenced on a basis which is consistent with the jury's verdict and on the basis of the facts which I find: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [14] (Gleeson CJ, Gummow and Hayne JJ). The jury's respective verdicts establish that they were satisfied that there was an agreement to which each offender was party with a common objective of doing acts in preparation for a terrorist act, that each offender intended to enter into that agreement and that at least one overt act was done by one of the parties to the conspiracy in furtherance of the agreement. Each jury must have been satisfied that the act for which the preparation was done was a terrorist act as defined in s 100.1(1) of the Criminal Code. It follows that, relevantly, the act or acts would cause serious injury or death, that the act or acts would be done by the offender or by at least one other person with the intention of advancing a political, religious or ideological cause; and would be done with the intention of coercing or influencing a government by intimidation.
The Crown case, which the jury can be taken to have accepted, at least in part, was that the terrorist act or acts involved the use of an improvised explosive device (the bomb plot) and/or an improvised chemical dispersal device (the poisonous gas plot).
As the offenders were convicted in separate trials, it is necessary to make findings of fact by reference to the evidence in the particular trial following which each offender was convicted. However, as the evidence in the Crown case was substantially similar in both trials, there is no need to distinguish between the trials when narrating the evidence, except where it is to different effect. Further, although the recorded interviews with each offender were admissible only against the offender to which they related, both offenders gave evidence in each of the two trials. Thus, reference will only be made to differences in the evidence in the two trials where necessary. I do not propose to take into account against Khaled the evidence he gave, or his demeanour, while giving his evidence, in Mahmoud's trial.
As sentencing judge, I am required to make findings as to the facts, including those facts which follow from, and are consistent with, the jury's verdict. I may not take facts into account in a way that is adverse to the interests of either offender unless the facts have been established beyond reasonable doubt. However, if there are circumstances which I propose to take into account in favour of either offender, it is sufficient that they be proved on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ. There are other matters which can be taken into account in sentencing, or which form part of the narrative, which do not fall into either category: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [19]-[24].

[3]

The geopolitical situation in Syria and Lebanon

The offenders' motivation for preparing for a terrorist act had, as its source, the geopolitical situation in the Middle East, particularly in Lebanon and Syria. Although the majority of people in Syria were Sunni Muslims, President Bashar al-Assad was an Alawite, a sect which many Muslims would not recognise to be part of Islam. There was a majority of Alawites in both the Syrian government and the military.
In about 2012 there was a popular protest against Assad which was put down by military forces under his control. Subsequently, foreign fighters joined the conflict, entering Syria either from Turkey to the north or Lebanon to the south-west. Various opposition groups formed with the aim of overthrowing Assad.
Other countries intervened in the civil war, including the United States (the US) and its Coalition forces, Russia and Turkey. The US supported some non-jihadist opposition forces but opposed Islamic State. Turkey also took military action, largely to protect its borders. Russia fought against all opposition forces and used air strikes to destroy them. These air strikes killed many civilians as well as those engaged in the conflict.
Islamic State was one of the opposition groups. Its aim was to replace Assad with a Caliphate which would be ruled under a hard-line radical version of Islamic law. Islamic State established Raqqa as its capital and, at its height, controlled a significant area in Syria and Iraq. It attracted foreign fighters and foreign support through its widespread campaigns on social media, which promoted violent jihad and martyrdom. Some Muslims believe that those who die in the course of violent jihad will obtain advantages for themselves and their families in the afterlife. For certain extreme Muslims, jihad is a global responsibility. Islamic State fostered the belief that Muslims who are unable to travel to places where violent jihad is taking place have a responsibility to conduct terrorist acts in their own countries.
Islamic State appropriated conventional Islamic symbols and gestures, including the shahada ("There is only one true God and Mohammed is his prophet") and the raised index finger. Whether the incantation of the shahada or the raised index finger ought be regarded as demonstrating loyalty to Islamic State or merely as an outward sign of faith in Islam depends on the context in which the act is performed.

[4]

The offenders' family

The offenders come from a large family of twelve siblings. Khaled, the eldest surviving sibling, is 18 years older than Mahmoud, who is the youngest. The offenders and their brother, Amer, migrated to Australia. Their surviving siblings live in Lebanon or Syria. One of the brothers, Tarek, was a leader of Islamic State and a sheikh. He fought for Islamic State in Syria with his three sons, Abdulla, Mohamed and Abdul-Rahman, and his nephew, Ziad. Abdul-Rahman and Mohamed were both killed while fighting in Syria.
The five pillars of Islam include an obligation to travel to Mecca. Khaled and Tarek have both travelled to Mecca, which gives each an entitlement to be addressed by the honorific "Haj".
Members of the Khayat family, including Khaled, Tarek and Mahmoud, were involved in a construction business in Tripoli, Lebanon. The offenders would periodically send money from Australia to Lebanon either to pay the wages of those who worked in the business or to support members of the family.
Khaled lived in a unit in Sproule Street, Lakemba with his wife Rana, two of their sons and the younger of their two daughters. In 2005, Mahmoud married Dianne Merhi, Rana's sister. Mahmoud and Dianne lived in a unit block on Victoria Road, Punchbowl with their two sons, Jalal and Tarek. Due to marital difficulties, Mahmoud stayed periodically at a unit in Dellwood Street, Bankstown, which he also used as his postal address. The Dellwood Street unit was the home of Emma (Khaled's elder daughter) and her husband and cousin, Mohamad (the offenders' brother Ahmad's son).
In mid-2017 Dianne would sometimes stay at her parents' house in Cleveland Street, Surry Hills, either because they needed care or because they were patients at St Vincent's Hospital, which was closer to Surry Hills than to Punchbowl. Dianne and her two sons stayed at the house on Cleveland Street for the three weeks before 15 July 2017 as it was school holidays.
Two of Dianne and Rana's brothers, Abdul-Karem Merhi and Bilal Merhi, lived in Renown Avenue, Wiley Park.
Amer, who was divorced, lived in a garage unit which he rented from Deon Hughes in Morton Street, Lakemba until his departure for Lebanon on 15 July 2017. Neither offender was particularly close to Amer, although each said he loved him as a brother and spoke to him when he saw him. They disapproved of him because he drank, went clubbing, gambled and was gay which they regarded as bringing shame on the family.

[5]

Phones and means of communication

The offenders communicated with their relatives in Lebanon and Syria via an application known as Telegram which allows end-to-end encrypted chat (that is, undiscernible to anyone but the users), push-to-talk (to permit voice messages to be transmitted) and the sharing of images and videos. Telegram affords greater anonymity than WhatsApp because anyone with a handset with access to the internet can create a Telegram account, whether or not that person has a phone number or an email. A number is allocated for every Telegram account which is particular to the user. Telegram has features which enable users to cause messages to self-destruct after a set time period. Unlike WhatsApp, the file path for Telegram messages and images does not reveal whether the message or image has been received or sent.
Each offender had two phones. Khaled had an iPhone 6 for everyday use as well as an Alcatel. The iPhone had a SIM card but the Alcatel did not, which meant that it could only be used by him at home where there was Wi-Fi. The Telegram app was installed on the Alcatel. Mahmoud had an HTC mobile phone for everyday use. He also had a Samsung phone, on which the Telegram app had been installed, which he kept at home. The Samsung phone had originally been Dianne's. Dianne and their young sons continued to use it to watch YouTube videos. The messages sent by the offenders to each other and to family members in Lebanon and Syria were written in Arabic. Although Dianne can speak Arabic she can neither read nor write in Arabic.
Dianne had a USB stick and a MacBook Pro laptop on which she stored family photos, including photographs of their young sons wearing head scarves bearing the symbols of Islamic State. In some of these photos the boys carried toy replicas of AK-47 weapons or similar and, in others, a real gun belonging to an uncle. There was a photograph of Mahmoud's two sons with their cousin, Abdul-Rahman, who was then aged ten. Three years later, Abdul-Rahman went to fight for Islamic State in Syria where he died at the age of 13.

[10]

The delivery of the parcel to the Wiley Park address and its collection by the offenders

On Wednesday 19 April 2017 the parcel was delivered to Abdul-Karem. The offenders drove to Wiley Park to collect it and take it back to Khaled's garage at Sproule Street. For reasons which do not appear from the evidence, they waited until 21 April 2017 to open it.
At 6.49am on 21 April 2017, Khaled received by Telegram an image of a timer from Tarek or the Controller on his Alcatel phone. I infer that the sender of the image intended Khaled to attach the timer to the bomb which had been delivered in the parcel.
At 9.06am on 21 April 2017, Khaled sent a message to Mahmoud, telling him to "come over so we can open it". The "it" in this context was a reference to the welding machine which, to the knowledge of both offenders, contained a bomb. I reject the evidence of both offenders and Dianne that this was a reference to Dianne's car which was said to require two people to open the bonnet. I also reject the version given by Mahmoud in his recorded interview that the only occasion on which he had gone into Khaled's garage was when the back brakes of his car were making a noise and that he had asked Khaled to fix them.
Eleven seconds after receiving the invitation from Khaled to come over, Mahmoud responded with the question, "did he speak to you", which was a reference to Tarek. Mahmoud, whose son, Jalal, was with him, enquired whether Khaled's daughter Rukkaiyah could look after Jalal while they were in the garage. Mahmoud arrived shortly after 9am and was present when Khaled opened the welding machine and removed the copper coil which contained the bomb.
At 7.29pm that evening (on 21 April 2017), Khaled took a photograph of the copper coil with his finger pointing to the leg wires and sent it to Tarek or the Controller to show them that he had taken the coil out of the welding machine.
On the following day, 22 April 2017, the Controller sent an audio message to Khaled about wiring up the bomb.
Between 21 and 24 April 2017, the offenders communicated by WhatsApp about buying an industrial timer. Mahmoud suggested they buy it from eBay. Mahmoud and Dianne arranged for the purchase of a timer on eBay. To this end, Mahmoud updated his account with Khaled's address so that the timer would be delivered there. I reject Mahmoud's evidence that he thought that Khaled needed the timer to conserve electricity. He appreciated that Khaled was endeavouring to wire up the bomb and needed a timer for that purpose.
On 30 April 2017 Khaled asked Mahmoud, whom he regarded as more adept with technology than he was, to download a further application for him on his Alcatel phone. On 1 May 2017, the application was downloaded to Khaled's Alcatel phone. Khaled's user name for the purposes of communications using the app was "Carl".
Khaled undertook more than 135 searches regarding timers and sent many images to Tarek and the Controller of the research he had done. On 19 May 2017, Khaled did the first of many searches about installing a timer. He connected the battery to the timer to see if it would work and took a photograph to send to Tarek and the Controller. I reject Khaled's evidence that he had never connected the battery to the timer or that he had disconnected it to make it safe. I accept Khaled's evidence that he bought the timer and took a photograph for Tarek to show that he was doing the work to set up the bomb. I reject Khaled's evidence that he was "just pretending" to "do the work" since I am satisfied that he was working out how to get the bomb to explode at a pre-determined time.
On 23 May 2017 Khaled went to a retail store to purchase a different timer to connect it to the bomb.

[13]

Preparation for 15 July 2017

No later than June 2017, Khaled learned that Amer was intending to fly to Lebanon. At about this time the offenders decided, after consultation with Tarek and the Controller, to send the bomb with Amer, who was booked on a flight leaving Sydney on 15 July 2017.
On 13 June 2017 Khaled received on his Alcatel phone via the Telegram app instructions from Tarek or the Controller in the form of a video with Arabic subtitles as to how to connect the bomb to a power source. The soundtrack of Arabic chanting, known as Nasheed, included the following: "My Nation a dawn has glimmered, so expect the lethal victory Islamic State has risen, by the blood of the righteous Islamic State has risen, by the jihad of the pious . . . My Nation there are glad tidings, the sun of steadfastness has risen We have marched in groups to the hills of glory To return the light and the faith and the glorious glory By men who divorced the physical world and won eternal life."
On around 1 July 2017, Mahmoud, in furtherance of the conspiracy to put the bomb into Amer's luggage for his flight, asked Amer to take a photograph of his silver suitcase. Amer sent the photograph to Mahmoud who forwarded it to Khaled. Although I accept that Mahmoud generally photographed his own luggage to make recovery easier in the event that it was lost, I reject Mahmoud's evidence that the taking and sending of the photograph had anything to do with this habit. First, it was Amer's luggage which was being photographed; and, secondly, Mahmoud forwarded the image to Khaled.
In July 2017, the offenders received photographs of Ziad, one of their nephews, who had injured his foot in the Syrian conflict.
On 1 July 2017 the Controller sent a further video with Arabic subtitles to Khaled. The video demonstrated how to make a highly explosive substance. The explosive substance plot was the third plot. Although Khaled tried to follow what was depicted in the video, he soon decided that the whole process of manufacturing the explosive substance was too dangerous for him personally and did not persevere.
Tarek instructed Khaled to purchase a machine in which to secrete the bomb. Khaled already had a meat mincer and decided that this would be a suitable repository for it. He removed certain parts from the inside of the machine in order to create space for the bomb, the timer and the batteries. He put the bomb inside the meat mincer and put silicon around it to keep it in place. On 11 July 2017, he positioned the device on the desk in the garage under his unit at Sproule Street and took a photograph which he sent to Tarek or the Controller to demonstrate what he had done. At that stage he had not finished preparing the bomb for the journey and was still experimenting with the parts necessary for its effective operation.
On 14 July 2017 the Controller and Khaled exchanged a substantial number of messages using the app that had been installed on Khaled's Alcatel phone on 1 May 2017. The messages principally related to the time at which the timer ought be set to ensure that the bomb exploded mid-flight. The Controller instructed him to make allowance for the amount of time before departure at which the timer was set. The Controller advised Khaled to write down his calculations. The Controller also asked for a "picture" of the "work".
On 14 July 2017, at a time when the copper coil which contained the bomb fitted inside the meat mincer was still on the white desk in his garage at Sproule Street, Khaled took a photograph which he sent to the Controller at 4.57pm using his Alcatel phone. In response to the photograph, the Controller said, at 5.02pm: "You should not have sent me a picture of the item you want to send brother." Several messages passed between the Controller and Khaled about setting the timer so that it would explode while the plane was mid-air.
Tarek, or someone on his behalf, sent an audio file of one of his sermons to Mahmoud and Khaled. Mahmoud received it on the Samsung at 4.30am on 14 July 2017 and Khaled received it on the Alcatel at 10.41am on 15 July 2017.

[14]

The events of 15 July 2017

In about the last week of June 2017 Dianne and her two sons moved to her parents' home in Cleveland Street for the school holidays. During this period Dianne looked after the property for her parents and visited them at St Vincent's Hospital where they were both in-patients. By this time, Mahmoud had recovered from the hernia operation and was back at work at Mascot. Because of his injuries, he was working in the office preparing invoices, which also required him to work on Saturday mornings.
On Thursday 13 July 2017, Dianne's mother was discharged from St Vincent's Hospital and came home to her residence in Cleveland Street. However, as Jalal had to go back to school on Monday 17 July 2017, Dianne wanted to return with her children and her mother to the unit on Victoria Road, Punchbowl on Saturday 15 July 2017.
At 8.52am on 15 July 2017, before he left work, Mahmoud sent a text message to Khaled's iPhone asking whether he was taking Amer to the airport. There were exchanges between the offenders about whether Khaled was going to send anything with Amer. Both offenders understood these exchanges to refer to the bomb in the meat mincer. At around 10am Mahmoud finished work and went to Cleveland Street.
Dianne gave evidence that, on the morning of 15 July 2017 prior to Mahmoud's arrival, she noticed that the courtyard at Cleveland Street was really messy and that there was rubbish everywhere. The evidence of both Dianne and Mahmoud was that when Mahmoud arrived at about 10am, she told him to clean it up. I reject this evidence which I regard as false and designed to account for Mahmoud's fingerprints which were later found on the plastic bags and the housing of the meat mincer.
At 10.09am Mahmoud sent a text to Khaled confirming that he had arrived at Cleveland Street. At 10.12am Khaled responded saying that he and Amer would be there at midday and mentioned that Amer wanted to see his aunt, Amneh (Dianne's mother and the offenders' mother-in-law), before he left. In a series of texts the offenders discussed Amer's departure and whether "it" (the bomb) was "OK" to send.
At 10.41am on 15 July 2017, Tarek sent the offenders an audio recording of a Friday prayer which he was to deliver, or had delivered, in Syria. It included the following: "Oh God the sky is your sky, and the land is your land, and the seas are your seas. Oh God, bring down their aeroplanes, and drown their battleships, and destroy their materiel, and let their possessions be captured by your worshippers, the Mujahidin/Jihadis. Oh God, we are not equal to them at all, we fight in order to let your word rise, we fight for your sake, but they fight for the sake of the devil."
Although the evidence is insufficient for an inference to be drawn that the offenders actually listened to this prayer before they went to the airport with the bomb, I am satisfied that each of the offenders shared the sentiments which Tarek expressed in it.
Before leaving home, Khaled took, in its box, the meat mincer, which contained the bomb together with its attachments as well as the timer and the battery, from his garage and put them in a Toyota Corolla which he was fixing for the father of one of Mahmoud's work colleagues. Khaled collected Amer from his garage unit in Lakemba and drove to Cleveland Street.
When Khaled and Amer arrived at Cleveland Street at about midday, Amer went inside to see his aunt, Amneh. The offenders stayed in the courtyard which provided a more suitable venue for the bomb and its chosen receptacle to be prepared as Surry Hills was much closer to the airport than Khaled's unit in Lakemba, there was more space in the courtyard than inside Khaled's garage and it was private. Khaled opened up the meat mincer, connected the battery and the timer to the bomb and closed the meat mincer so that it could be put in Amer's luggage before they left for the airport. Certain parts had to be removed from the inside of the meat mincer (which had been in place when he took the photograph in his garage on 14 July 2017), in order to accommodate the additional devices within the housing. He discarded the bits he had not needed from the meat mincer and left some of the attachments, such as the sharp discs and blades, in the courtyard. Mahmoud was present while Khaled was doing this work and was aware of its purpose.
At around 1.00pm, the offenders left for the airport with Amer in the Toyota Corolla. On the way, at 1.11pm, Mahmoud sent a text to Dianne: "Don't let kids go out da yard haj [Khaled] opened mince mChine its sharp no one touch it please." He followed this message with another sent shortly afterwards: "Make sure". Dianne responded to the effect that she and the children were inside. Mahmoud sent these messages because he knew, from seeing what Khaled was doing in the courtyard, that there were broken pieces and sharp discs and blades there which had been left behind after the meat mincer had been closed up with the bomb inside which posed a danger to his two young children who might otherwise play there.

[15]

Airport trip on 15 July 2017

At about 1.12pm, the three brothers arrived at the upstairs departure area of the international airport. The three men got out of the car. Mahmoud went around to the driver's seat to mind the car while Khaled went inside with Amer to check in.
Amer was booked into an economy seat on Etihad Airways flight number EY451 travelling from Sydney to Beirut, Lebanon, via Abu Dhabi. At around 1.15pm, Amer and Khaled went to the online check-in counter of Etihad Airways because the queue was shorter. Amer had a silver suitcase, two smaller black bags, one on wheels and the other a small back-pack, and a white plastic Toys R Us bag which contained a doll and some plastic jewellery which Khaled's wife had bought for relatives in Lebanon. The luggage allowance on the flight was one bag up to 23kg, as well as one carry-on piece of up to 7kg. Justine Browning, a passenger service agent who was working at the counter for on-line check-in, checked in the silver suitcase but told Amer that his two cabin baggage pieces were overweight. Because she suspected that he might take the excess bags to the gate she made a note on the system. Ms Browning told Amer either to repack his bags or to pay the excess for one of his hand-luggage bags to go in the hold as a checked bag. She also instructed him to come back and see her once he had repacked his bags.
At about 1.18pm, Mahmoud sent his wife Dianne a voice message which was translated as follows: "We have arrived sweetheart, I am waiting a bit for the Haj [Khaled], he went in with him to check the weight and he will come out straight away, he won't be long, five minutes and we will be back, God willing".
Not long afterwards, Khaled and Amer went outside where the Toyota Corolla was still in the drop-off area with Mahmoud in the driver's seat. Khaled put the Toys R Us bag back into the car. He leaned into the back seat to remove the meat mincer from one of the black bags and to rearrange Amer's hand luggage. After a short period, Khaled returned the two black bags to Amer and embraced him before Amer went back inside the terminal. Amer did not return to Ms Browning. The film of Amer walking towards immigration clearance showed that he was wheeling one of the black bags and carrying the other over his shoulder.
The evidence established that Khaled, having taken the meat mincer containing the bomb to the airport that day, decided to remove it from Amer's luggage before he went through Customs. The compelling inference is that he made this decision because he assessed the danger of detection as being too great once Ms Browning had put the note on the system beside the entry for Amer. This inference is supported by Khaled's explanation to the Controller referred to below. Further, Khaled knew that he would not be able to source a bomb in Australia and that, if the bomb was discovered before Amer boarded, he, Khaled, would be implicated.
EY451 departed Sydney at 3.20pm for Abu Dhabi with Amer as a passenger. It landed safely in Abu Dhabi and Beirut.

[16]

After taking Amer to the airport

Mahmoud remained in the driver's seat of the Toyota Corolla and drove back from the airport to Cleveland Street with Khaled in the passenger seat. Dianne opened the back door which led to the rear courtyard for them. Once they were inside, the offenders proceeded to break open the meat mincer and disconnect the leg wires of the bomb from the timer and battery. One of them taped the leg wires together so that they would not accidentally complete the circuit. They left the broken pieces of the meat mincer in the grey bin in the courtyard and secured the other parts of the machine which had not been taken to the airport, including the blades. It was during this period that Mahmoud touched the inner housing of the meat mincer and wrapped the copper coil in two clear plastic bags which had contained parts of the meat mincer. A piece was torn from a black plastic garbage bag and used to wrap the copper coil in a layer over the two clear plastic bags. White tape from the courtyard in Cleveland Street was wrapped around the bomb to secure it. Khaled took the bomb back to his garage at Sproule Street and stowed it in the wooden hutch where it was found during the search by police on 29 July 2017. The Toys R Us bag and its contents were subsequently located at the Dellwood Street unit.
I reject Khaled's evidence that, in early July, he had stowed the bomb in a yoghurt container and buried it in a raised garden bed at Cleveland Street and left it there until his father-in-law came out of hospital about five days after 15 July 2017. Khaled's evidence was that, at that point, he dug it up so that his father-in-law would not find it. He said that he took it out of the yoghurt container and stashed it down his pants to hide it from his father-in-law before taking it back to his garage at Sproule Street. I regard this version as a lie concocted to protect Mahmoud from the obvious inference that he was involved in the preparation of the bomb before the trip to the airport and its dismantlement when they returned with it from the airport.
At 6.48pm on 15 July 2017 Khaled, who by that time had returned to Sproule Street, sent a message to the Controller by Telegram on the Alcatel to say that he would send him the details "tomorrow". The following day, 16 July 2017, in response to messages from the Controller asking him what had happened, Khaled replied: "I gave the gift to the person but he had extra weight so he returned all of the people's items. His family did not tell me until 5pm. I went back to the person's family house and took back the gift and secured it." This message was true apart from the statement that Khaled did not know that the bomb had not gone on the plane until 5pm. This part was a lie which Khaled told the Controller designed to excuse his failure to achieve the aim of the conspiracy of getting the bomb onto the plane.
On 17 July 2017 Mahmoud told Khaled that he had booked a flight to go to Lebanon for a fortnight in September that year and that his ticket had a luggage allowance of 45kg. There was then an apparently humorous exchange about Khaled sending "the machine" with him. This was a reference to the meat mincer and not, as the offenders and Dianne said in their evidence, to a diabetes machine which Amneh wanted to send to her brother of whose death she had not been informed because of her own ill-health. Because of his arrest, Mahmoud could not travel to Lebanon as planned.
On 20 July 2017 Khaled sent a screenshot of a business in Gardeners Road to Mahmoud. It is possible that Khaled sent the screenshot so that Mahmoud would purchase some glassware for the explosive substance plot. However, the evidence is insufficient to make this finding. I do not accept the evidence of the offenders and Dianne that the screenshot was related to problems with a blocked drain at the Victoria Road unit.
On 21 July 2017 the Controller sent Khaled a message saying that "we should be a bit fast". On 22 July 2017 the Controller sent a message to Khaled asking him to do a trial with "the powder". Khaled responded that he had burned the powder. On 22 July 2017 Khaled sent a message to the Controller asking for further instructions.
Also on 22 July 2017 Mr Hughes, who had been Amer's landlord, sent various text messages to Khaled about Amer which generated discussion between the offenders in Sydney and Amer in Lebanon. The substance of Mr Hughes' texts was he wanted Amer's possessions collected because Amer had threatened to kill another resident living in the premises. Mr Hughes said that he would call the police if this did not occur. There was no suggestion that Amer had actually threatened to kill anyone. It appears that Mr Hughes overdramatised the situation to make sure that Amer did not return and also to persuade Khaled to collect Amer's possessions. The offenders knew from talking to Amer that he was considering remarrying and returning to Sydney. They sought to dissuade him because Khaled feared that, if Amer returned, Mr Hughes would actually call the police and bring unwanted attention on the family. Mahmoud discounted the risk, reasoning that, if Mr Hughes had actually believed that Amer was a threat, he would have called the police already.
On 23 July 2017 the Controller sent a message to Khaled telling him that he would send "details", which I infer pertained to the poisonous gas plot. From 24 July 2017 there was a long series of messages between the Controller and Khaled about the preparation and testing of poisonous gas. In one such message the Controller instructed Khaled to conduct a trial that week. The Controller gave Khaled further information about the amounts of the poisonous gas which would need to be made in order to achieve the lethal concentration in a confined space. Khaled transcribed the formula and calculations onto a piece of paper which he kept in his wallet. The piece of paper was obtained following the search of his person after his arrest. The accuracy of the calculations to produce a lethal dose was confirmed by Mr Cabot, a forensic chemist. Had the gas been produced in accordance with the instructions, it would have been lethal within a space of the proportions specified.
On 27 July 2017 the Controller told Khaled that they would postpone working on the explosive substance plot and concentrate on the poisonous gas plot. To that end, the Controller encouraged Khaled to do the trial of the poisonous gas.

[17]

The actions of the offenders on 29 July 2017

Police conducted surveillance of Khaled on 29 July 2017. There were eight police operatives involved, including a designated note-taker. Videos were taken of the offenders' actions throughout the course of the day. The operatives were in radio contact with each other.
At 9.33am Khaled sent a message to the Controller: "Rejoice brother, God willing, I will let you know the results." It was Khaled's intention to conduct a test burn on the barbecue in Mahmoud's car space behind the Victoria Road unit block that day. At 10.06am Mahmoud sent an audio message to Khaled saying, "I am just on my way to pick up Jalal and then will go to you straight away, God willing." I do not accept the offenders' evidence that the purpose of the visit was so that Khaled could fix the stereo in Mahmoud's Nissan Pulsar. I am satisfied that Mahmoud knew that Khaled wanted to conduct a test burn on the barbecue at Victoria Road that day.
Shortly before 11am on 29 July 2017 Mahmoud drove his Nissan Pulsar to collect Khaled from Sproule Street to take him to Victoria Road, Punchbowl. Mahmoud's son, Jalal, was in the back seat. Khaled emerged from the unit block and opened the boot of his white Holden Astra sedan which was parked outside. He removed a plastic bag, which contained the constituent elements to make the poisonous gas, carried it to Mahmoud's car and got into the front passenger seat. Mahmoud drove them to the unit at Victoria Road. When he arrived, he drove down the driveway at the side of the unit block and parked in the allocated parking spot under the carport in front of the barbecue.
Khaled took a tile out of the boot and carried it around to the barbecue. He used the tile as the base on which to burn the chemicals from which the poisonous gas could be made. He also used a metal plate from the stereo of Mahmoud's car. Khaled lit the barbecue. While Khaled was conducting the test burn, Mahmoud was cleaning the inside of the car. At times the doors of the vehicle were open, the boot was open and the bonnet was up, thereby obscuring the view of the barbecue.
That morning, Simon Boudaher, who lived in a unit in the Victoria Road block, recognised Mahmoud, who asked him for a piece of wire "for the car". Before leaving the premises for a few hours, Mr Boudaher gave him a piece of electrical wire about 50-60cm long.
Mr Lymberatos, a panel beater by trade, lived at the property adjoining the back of the Victoria Road property. From about 10.00am on 29 July 2017 he was in his back yard fixing a car. His property was separated from the Victoria Road property by a 6-foot high timber fence which backed onto the carport. He had been listening to the radio until about midday when he turned it off because he needed to use the high-amp power point at the back of the house for some tools.
At some stage that afternoon, Mr Lymberatos heard three male voices through the fence which adjoined the Victoria Road unit block. They were speaking a language which he did not understand. Smoke was coming from the same general area as the sound of the voices. Mr Lymberatos described the smoke as "a nice thick white plume, barbecue-type smoke" which had a nice sweet smell. The smoke emanated from Khaled's barbecue and was caused by the test burn which Khaled was conducting. I am satisfied beyond reasonable doubt that Mahmoud knew that Khaled was conducting a test burn to make poisonous gas. Although Mahmoud denied smelling smoke, he was so proximate to the scene that he must have smelled it.
Between 12.40pm and 2.45pm, Mr Wilson was the only member of the surveillance team who was in a position to see what was happening in this area. He took a video of what he could see from a balcony near the driveway. The compelling inference from the video evidence was that Khaled was operating the barbecue during this period. Neither Mr Boudaher nor Mr Wilson smelled smoke in the area which is consistent with the wind blowing the smoke away from where they were and in the direction of Mr Lymberatos' property.
At some point after the test burn, Khaled left the Victoria Road property to pick up the Toyota Corolla. He returned at 1.51pm and parked the Toyota Corolla near Mahmoud's Nissan Pulsar. Mohamad Khayat, Khaled's son-in-law, arrived in his blue Holden Astra and parked near the other two vehicles.
At 2.45pm, Khaled left in the Toyota Corolla and arrived at Sproule Street by 2.58pm. He sent two photographs to the Controller on his Alcatel which he described in a further message as follows: "This is during combustion and after combustion".
At 3.09pm, Khaled sent a further message to the Controller, saying "But brother after mixing them I only got 94 grams." He also sent a photo of a bag, which I infer to be the post-burn product, on a set of scales. Subsequent testing revealed that the burn had not been effective to cause the constituent elements to react so as to create the requisite compound.
At 3.23pm Khaled drove the Toyota Corolla to Haldon Street, Lakemba where his wife worked. The tile on which he had burned the chemicals was in the footwell of the driver's seat with a bag of chemicals. He was arrested at 3.55pm that day and taken to Burwood Police Station.

[19]

Mahmoud's arrest

Mahmoud was also arrested on 29 July 2017. He was interviewed at length over the course of three days, 29, 30 and 31 July 2017. Before the interview commenced, the interviewing officers, Federal Agent Luchetti and Detective Senior Constable Simmons, had watched the footage taken at the airport and interviewed Justine Browning. Although the officers understood that there was an allegation that a bomb had been taken to the airport on 15 July 2017, the bomb had not been located when they began the interview on 29 July 2017. The police were anxious to find the bomb because they feared that it would explode. None of the phones or other devices had been analysed before the interviews concluded. The police had not noticed the Toys R Us bag on the CCTV footage taken at the airport and had no information about it. For these reasons, the interviewing of Mahmoud was characterised, particularly in the early stages, by open questions.
During the interview Mahmoud was polite, courteous and apparently respectful to police. He gave a version of events which corresponded in part with the objective evidence. He raised the Toys R Us bag several times in the course of the interview although he was aware that it was not relevant to the investigation as he knew that the bomb had been secreted in the meat mincer.
Federal Agent Foster, who had a co-ordinating role in the investigation, subsequently appreciated from the images retrieved from Khaled's mobile phone; the location of the copper coil, associated detonator and timer in Khaled's garage; the shell of the meat mincer retrieved from Cleveland Street; and the admissions made by Khaled that the bomb had been hidden in the meat mincer. There was no evidence, apart from Mahmoud's self-serving speculation, that indicated that the doll contained in the Toys R Us bag had ever contained a bomb. I am satisfied that Mahmoud raised the doll to mislead police about the location of the explosive device with a view to making himself look as if he was being helpful.

[22]

The nature and circumstances of the offence and whether it formed part of a course of conduct

The primary facts of the offence have been outlined above. I am satisfied that each of the offenders was a party to a conspiracy with each other and with Tarek and the Controller to do acts in preparation for a terrorist act or acts. The relevant terrorist acts were the bringing down of an aircraft by a bomb which had been set to explode mid-flight and the killing of persons by the release of a lethal dose of poisonous gas. I am satisfied that the conspiracy began around 21 January 2017 when the offenders sought to obtain the details of Abdul-Karem Merhi's name and address with a view to providing the information to Tarek so that he could send a parcel containing a bomb to Sydney for the offenders' later use.
Khaled had skills as a handyman and, because he was substantially unemployed, he was available during weekdays when his wife and children were away from home to do tasks in furtherance of the conspiracy.
I do not accept the submission put by Mr Finnane QC, who appeared on behalf of Mahmoud at the sentence hearing, that Mahmoud was not "doing anything apart from assisting at the fringes". Although Khaled was the person who communicated with Tarek and the Controller about the subject matters of the conspiracy and received instructions from them as to various acts, Mahmoud also played an important role. His English language skills and technological ability were superior to Khaled's which meant that he, too, was able to perform important tasks.
The conspiracy continued until the offenders' arrest on 29 July 2017. During this period, Khaled constructed a viable bomb which was concealed in a meat mincer, in accordance with instructions given to him. When Amer told his brothers of his plan to go to Lebanon, the offenders decided to send the bomb with him, which would involve killing him in the process. Mahmoud accompanied Khaled and Amer to the airport and waited outside, which meant that Khaled could leave the terminal quickly after Amer had checked in. When they arrived back at Cleveland Street, Mahmoud helped Khaled to dismantle the bomb and secure it within plastic wrapping so that it could be stored for use on a later occasion. The ostensible joking about sending the machine to Lebanon with Mahmoud showed that the bomb plot was still on foot although its execution had been deferred for a period while the poisonous gas plot was advanced.
On the day the offenders were arrested, they had participated in a test burn of chemicals to produce the poisonous gas. There are no grounds to suppose that, had they not been arrested, they would not have gone ahead with the poisonous gas plot or that they would not have found another way of getting the bomb onto an aircraft. This is not to suggest that I could be satisfied that they would have committed a terrorist act if not arrested since this is a matter which cannot be known and is largely speculative. I regard the acts committed by the offenders during the period of the conspiracy as amounting to a course of conduct.
I accept the Crown's submission that Khaled was more culpable than Mahmoud because his involvement, measured by the time spent, the amount of communication with the Controller and the nature and extent of the tasks performed, was greater, as the narrative of facts set out above demonstrates. This finding is relevant to parity.

[23]

The seriousness of the offence

That no one actually suffered physical injury or was killed as a result of this conspiracy does not make it other than extremely serious.
The crime of conspiring to do acts in preparation for a terrorist act or acts is not one which can be left by police to continue with a view to seeing what will come of it. It is to be distinguished from crimes such as importation of prohibited drugs where police might intercept an importation and replace it with a substitute to see where it might end up. Doing acts in preparation for a terrorist act is a crime, which, once detected, must be closely monitored lest its ultimate goal be achieved with potentially devastating consequences.
The conspiracy to which both offenders were parties plainly envisaged that a large number of people would be killed. If the plots had gone according to plan, no one in the aircraft carrying the bomb and no one exposed to the poisonous gas would have survived and no one would have had time to say goodbye. It was common ground that an intention to take or cause harm to human life is more heinous than conduct intended only to damage property. The scale of the intended impact adds significantly to the gravity of the offence.
Tarek and the Controller were the guiding minds of the conspiracy, leaving Khaled and Mahmoud to do the requisite physical acts to bring it about in Australia. The Controller sent the bomb to Sydney and gave Khaled detailed instructions as to what he should do at every step of the way. The Controller's requirement that photographs be sent to him of the "work" was an indication of the extent to which Khaled was supervised remotely by the Controller. Khaled, in turn, made requests of Mahmoud that he do things which he was either unable to do, which were harder for him than for Mahmoud, or which required a second person. This is why Mahmoud spoke to the delivery company, set up an email address for Abdul-Karem Merhi and was Khaled's assistant for the airport trip, the wiring of the bomb, the dismantling of the bomb and the test burn of the poisonous gas. However, both of the offenders played a highly significant role in Australia, taking delivery of the bomb and doing what was asked of them. Although Khaled and Mahmoud did not initiate the conspiracy, they both carried out instructions to advance its purposes. The conspiracy could not otherwise have been furthered in Australia.
Mr Pontello SC, who appeared with Ms Bennett on behalf of Khaled at the sentence hearing, accepted that the offence committed by Khaled was "very serious and above the middle range of objective seriousness, but not at the highest end". Mr Finnane, who was not trial counsel, substantially underestimated the seriousness of Mahmoud's offending. I find that the objective seriousness of the offence was very high for each offender.

[26]

Co-operation with law enforcement agencies in the investigation of the offence

Both offenders participated in lengthy recorded interviews following their arrest and detention. Khaled was both forthcoming and voluble in his interview about several matters which incriminated him, including the arrival of the bomb in Australia, the location of the bomb, its construction and its concealment. He also volunteered details about the poisonous gas and explosive substance plots. He told police that the formula for the poisonous gas was in his wallet. Detective Senior Constable Kazzi agreed that his answers in the interview were "valuable". The Crown accepted at the sentence hearing that Khaled's answers "put the police at some advantage". Thus, although Khaled ultimately denied, in the recorded interview, both his intention and Mahmoud's involvement and told many untruths throughout the interview, he was the source of much information which helped the investigation. Khaled's co-operation, such as it was, was motivated by a hope that he would be treated more leniently as a consequence, as is revealed by his question of police in the interview: "do I get like something in the Court for that?" His self-interested motive does not undermine the utility of his co-operation. I am persuaded that he is entitled to have his co-operation taken into account in his favour.
Mahmoud purported to co-operate with police in his recorded interviews. As referred to above, he was courteous and apparently willing to answer questions. However, his answers were strategic. He deliberately understated his own contact with Tarek and lied about his knowledge of whether Khaled was in contact with Tarek. On several occasions in the course of the interview he mentioned the doll in the Toys R Us bag with a view to diverting the investigation from the meat mincer in which, to his knowledge, the bomb had been secreted. Mahmoud pretended that he did not know the parcel was coming until the day Khaled came to his house before going to Wiley Street to collect it. He also feigned surprise that Khaled and Amer were calling into Cleveland Street although he knew from the text messages he exchanged with Khaled that morning, if not before, that this was what they were going to do. While his performance in the recorded interview was, if taken in isolation, impressive, it became apparent, in the context of all the evidence in the Crown case, that he was dissembling to try to save himself. Mahmoud had no obligation to co-operate with police and could have remained silent rather than taking part in an interview. However, I do not accept that there is any co-operation which can be taken into account in Mahmoud's favour, apart from his co-operation in the conduct of the trials, to which I will now turn.
Both the joint trial and the trial of Mahmoud were conducted very efficiently by Mr Crowley QC who appeared with Mr Shariff for the Crown at trial. This would not have been possible without the co-operation of Mr Pontello (now senior counsel), trial counsel for Khaled, and Mr Walmsley QC, trial counsel for Mahmoud. There were substantial admissions made which led to agreed documents being tendered which summarised the material on each of the offender's devices and the relevant chats between them in a manner which was designed to put before the jury only relevant entries out of a large number of total entries. There was a comprehensive forensic summary tendered, which included the evidence of the searches conducted and forensic examinations, including with respect to DNA and fingerprints. The summary was admitted without objection which led to a significant saving of time and cost. There were also detailed statements of agreed facts which minimised the number of witnesses who were required to be called. Mr Lymberatos, who gave evidence in the joint trial and in a trial in respect of which the jury had to be discharged, was not available for Mahmoud's eventual trial which led to his evidence being the subject of a statement of agreed facts. These facts involved substantial admissions by Mahmoud about the smoke coming from the barbecue on 29 July 2017. Each of these matters enabled the Crown to put its case in a clear and efficient manner to the jury. Both offenders are entitled to have their co-operation in this respect taken into account in their favour.
Neither offender has undertaken to co-operate with law enforcement authorities within the meaning of s 16AC of the Crimes Act. Accordingly, there is no need to quantify the effect of the offenders' co-operation, that being a matter forming part of the instinctive synthesis which characterises the sentencing process.

[27]

Specific deterrence

In order to decide whether the sentence I impose will have a deterrent effect on the particular offender, it is necessary to come to a view about what motivated each offender to commit the offence. On the one hand each offender had migrated to Australia, settled here, had children in this country and was, at least apparently, well-integrated into life in Sydney. Khaled was proud that his elder daughter had graduated from the University of New South Wales and did domestic chores at home while his wife worked. Neither offender attended a mosque regularly outside Eid although each prayed five times a day. I accept that Khaled's wife and children were entirely unaware of his involvement. There is no indication that he sought to indoctrinate them in any way.
Nonetheless, the offenders were close to Tarek and their nephews who were fighting in Syria. They identify as Sunni Muslims and were appalled by the killing in Syria. They felt a family and religious obligation to help Tarek in a cause in which they all believed. Khaled admitted in his recorded interview that his "head" kept telling him to "do it" (put the bomb on the plane). He also admitted that he thought "bad things" when he saw on the news that Syria was being bombed and Sunni Muslims were dying. Khaled considered there to be a connection between Etihad Airways and those bombing Syria. He decided to bomb the aircraft because he wanted to "do something" … "for the people dying over there [in Syria]."
The messages which the offenders sent to each other and to Tarek indicated that their sympathies were with the cause of Islamic State and that they acknowledged the martyrdom of their nephews who had been killed in Syria. It is difficult to know whether any sentence I might impose might deter them from committing other offences on release or make them more determined to advance the cause of Islamic State and Islamic fundamentalism. However, I accept that each is suffering considerably as a result of separation from family members and that this will have an effect on their conduct on release.
Notwithstanding the images of Mahmoud's two sons in Islamic State outfits referred to above, I am not satisfied that Mahmoud tried to indoctrinate his sons in the cause of Islamic State.

[28]

General deterrence

The question of general deterrence is a vexed one in this context. The definition of "terrorist act" includes the motivation of advancing, relevantly, a religious or ideological cause. In circumstances where death as a martyr is glorified, a lengthy prison sentence imposed on the offenders may not deter others who are similarly motivated: see Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 at [87]-[88] (Spigelman CJ).
However, the general deterrent effect of a sentence is not only to be measured by reference to the effect on those who might be inclined to commit similar crimes. The sentence can also provide reassurance to the general community that crimes such as these are regarded as serious. One of the purposes of incorporating an element of general deterrence in a sentence is to ensure that public confidence in the administration of justice is maintained: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [82] (McHugh J). It is important that general deterrence be given weight in this sentence.
Had either Khaled or Mahmoud envisaged that they would be caught, arrested, tried, convicted and imprisoned, I do not consider that they would have become involved in the conspiracy. Although their sympathies were with Islamic State because of their family and religious connection, I doubt that either was prepared to become a martyr to the cause. Khaled abandoned the explosive substance plot because he feared for his safety. The offenders joked with each other about taking the "machine" on a plane, knowing that neither would have been prepared to do so personally. Khaled appeared to believe that they could get away with the bomb plot because, as he explained to police in his recorded interview, had the bomb got onto the plane, no one would have known what had caused it to explode mid-air over water. The instructions which Khaled received from the Controller about how to implement the poisonous gas plot included instructions about how to ensure that he was not exposed to the lethal gas. Mahmoud would not have wanted to put himself in a position where he would be separated, either through death or imprisonment, from his wife and sons. Neither offender believed that he would be found out or harmed had the purposes of the conspiracy come to pass.
The sentences which I impose on Khaled and Mahmoud Khayat ought include an element which is designed to deter those, such as the offenders, who live relatively comfortable lives in Australia, and who may feel, because of family and religious connections, inclined to commit a terrorist crime in Australia to draw attention to the plight of those engaged in a political or religious war elsewhere.

[32]

Khaled Khayat

Khaled was born in Lebanon in 1967. As a young man, he fought in the Lebanese Army on the side of the Christians because he "hated the Shia". He migrated to Australia in 1987 or 1988 and worked in various occupations, including at the Ford Motor Company at Flemington, as a panel beater, spray painter, meat wholesaler, butcher and, since he suffered his first heart attack in 2010, as a handyman. As referred to above, Khaled is married and has four children: Emma, aged 28; Mouhammad, aged 26, Mahmoud, aged 24 and Rukkaiyah, aged 23. Character references have been tendered on behalf of Khaled from each of his four children and from his wife, Rana. They describe a kind, hard-working, generous man who is devoted to his family. He was 49 years old at the time of the offending and is now 52.
According to a report of Dr Herman, consultant cardiologist, Khaled has a history of heart disease, which, in 2010, caused him to stop full-time work. Khaled has a strong family history of cardiac disease and several risk factors, including hypertension, high cholesterol and mild obesity. He was a heavy smoker before his arrest on 29 July 2017. He takes a number of medications. His incarceration will prevent his smoking but is also likely to constrain his opportunities to exercise at an optimal level for his heart. It is likely that he will suffer further cardiovascular events. I infer that his life expectancy is diminished as a consequence. Although his offending was more serious than that of Mahmoud, his age and ill-health are matters to be taken into account since, depending on the length of the sentence, he might die in gaol and, if he survives, he will have a shorter time after his release. For this reason, I have reduced the sentence which I would otherwise have imposed on Khaled.
Khaled has no criminal history. His family members are adamant that he would not commit any further offence. Mahmoud, Khaled's younger son, said: "I can assure the court that my dad will not commit an offence after he has seen how his wife and children have suffered. I know he would not want us to go through this again."
The difference between the face Khaled showed his family and the wider community and the one he displayed when he was engaging in acts in furtherance of the conspiracy with which he has been convicted is stark. By all accounts, Khaled was a generous man, who helped others and was always ready to use his handyman skills for members of the family and others and who took great pride in his children's achievements. Since he has been in prison, he has conducted himself well. There have been only two recorded infringements while in gaol, both of which related to his speaking on the phone in Arabic, which is prohibited in the extreme high-risk area where he is housed. I do not regard these infringements as being of any significance to sentencing.
However, in private, when communicating with Tarek, the Controller or Mahmoud, a different Khaled Khayat emerged: in this context, he was a man who was angry at the foreign powers who engaged in airstrikes in Syria and who hated Assad and all that he stood for. This version of Khaled was keen for Islamic State to triumph over Assad and wanted to do something to help, including something which would kill a significant number of people. Although, particularly in his recorded interview, Khaled purported to disapprove of some of the methods of Islamic State (and, for example, did not accept that smoking was wrong), he saw Islamic State as the best chance of deposing Assad.
It is part of the human condition to be inconsistent: to be one person in one situation and another in a different situation. Those who commit terrorist offences are not immune from this phenomenon. Indeed they may, as here, provide dramatic illustrations of it.

[33]

Mahmoud Khayat

Mahmoud was born in Lebanon in 1985. He, too, migrated to Australia when he was about 21 with Dianne, his wife. They have two young sons, Jalal, aged 13, and Tarek, aged 8. Mahmoud worked in various roles and was consistently employed. Mahmoud was 32 years old at the time of the offending and is now 34. At the time of his arrest, Mahmoud worked at Vic's Meats at Mascot. As a consequence of a work-related injury which required him to have a hernia operation, he was given work in the office in a position which he greatly enjoyed. He has no criminal history. On 27 July 2017, two days before his arrest, he passed the test for Australian citizenship but did not become an Australian citizen because the ceremony was scheduled to take place after his arrest. Despite his marital difficulties, he was known to be a family man who coached his son's soccer team and was well-liked at work and in the wider family circle. I accept that he was devoted to his two sons and suffers greatly from being away from them.
Three of Khaled's children gave character references for Mahmoud. Mahmoud Khayat junior (Khaled's son) described Mahmoud (the offender) as "hardworking, reliable, trustworthy and respectable". Emma and Rukkaiyah Khayat described his devotion to his children, as compared with his own situation: Mahmoud's own father died before he was born. Dianne also made a statement deposing as to his character and his qualities, including as a father and husband.
As with Khaled, there is a stark difference between the Mahmoud which his children, wider family and workmates knew and the Mahmoud who played a significant role in the conspiracy. While I accept that Mahmoud was courteous to police when interviewed and has been a model prisoner since being arrested, these attributes are to be compared with his knowledge of the purpose of the conspiracy and his preparedness to use his particular skills to further it.
Mahmoud Khayat was interviewed for the purposes of a pre-sentence report. The report recorded that he maintained his innocence. It also recorded that there had been no management difficulties with him and that he had not incurred any offences while in gaol. He was assessed at a low risk of re-offending. However, the author said: "Due to the nature of these offences [sic], further assessments will need to be completed to reflect his risk to the community."
Mahmoud was also interviewed by Dr Olaf Nielssen, psychiatrist, on 12 December 2019. Dr Nielssen prepared a report dated 16 December 2019 in which he recounted what Mahmoud had told him, including that he had not been able to get adequate treatment for a number of health problems including back pain, high cholesterol, gastric reflux and toothaches. Dr Nielssen diagnosed an anxiety disorder (panic disorder), based on a history he elicited which dated from two and a half years prior to Mahmoud's arrest. He also noted that Mahmoud was "polite in his manner", that his "emotional responses were appropriate", "he smiled readily and did not appear pervasively depressed".

[34]

Prospects of deportation

Amer Khayat, who was called as a witness on behalf of Mahmoud Khayat at the sentence hearing, gave unchallenged evidence that each of Tarek, Khaled and Mahmoud had been convicted and sentenced by a military court in Lebanon. Amer translated the court documents which were later translated at the request of the DPP and by Mahmoud's solicitor by a certified translators whose translation were tendered. The charge of which Tarek and the offenders were convicted was that, while in Lebanon, they joined Islamic State and acted together in planning a terrorist act aimed at blowing up a passenger plane after take-off above Sydney, using two explosive devices prepared for this purpose which were placed with Amer who boarded the plane. According to the charge, because of excessive weight in Amer's carry-on baggage, "the operation which was supposed to kill all passengers on the plane was abandoned."
Amer's evidence was that Tarek had been sentenced to death and that Khaled and Mahmoud had each been sentenced for life. Amer said that, on 18 September 2019, the Lebanese military court acquitted him of the charge "for doubt and insufficient evidence". After spending two and a half years in prison in Roumieh, Lebanon, Amer was released. He has since returned to Australia.
Mr Finnane submitted that I ought take into account on sentence that Mahmoud would be deported to Lebanon on the expiry of the non-parole period of his sentence in Australia to serve the life sentence in Lebanon. He argued that I ought not impose a sentence of 12 months or more because, if I did, it would have the effect that Mahmoud would have a "substantial criminal record" within the meaning of s 501 of the Migration Act 1958 (Cth), thereby obliging the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) to cancel his visa: s 501(3A). When I indicated that I would impose a sentence considerably longer than 12 months, Mr Finnane ultimately submitted that the prospect of deportation ought not increase the sentence but should decrease it. He submitted, without evidence, that the process of "complementary protection" would result in the Australian Government not deporting him but keeping him in immigration detention indefinitely. He submitted that this amounted to extra-curial punishment which should be a principal sentencing consideration.
Although cancellation in the present case is mandated by s 501(3A), the Minister has power under s 501CA of the Migration Act to revoke the original decision to cancel the visa. Mr Finnane accepted that what would occur on Mahmoud's eventual release, both in terms of deportation or indefinite detention, was "imponderable". In any event, I am bound by decisions of the Court of Criminal Appeal to the effect that, at least in cases such as the present, the prospect of deportation is irrelevant to the sentencing discretion, including for Commonwealth offences: Kristensen v R [2018] NSWCCA 189 at [23]-[34] (Payne JA, R A Hulme and Button JJ). However, even if it were relevant, it is not clear what difference it would make to the sentence in any event.
Further, I do not accept Mr Finnane's submission that the provisions in the Crimes Act which require sentencing judges to take into account other sentences apply to sentences imposed by foreign courts in absentia, particularly where the prospect that the offender will be deported to the jurisdiction where the foreign sentence was imposed depends on an executive act in the local jurisdiction.

[36]

Conditions of incarceration

The offenders are presently imprisoned in the Goulburn Maximum Security Gaol. Their present classification as "extreme high risk" is the consequence of the crime of which they were charged and convicted. Their conditions of incarceration are very onerous. In certain circumstances the offenders are required to speak English and are prohibited from speaking Arabic, which is their mother tongue, although they both speak English. The case notes tendered on behalf of Mahmoud at the sentence hearing show that he was, as a consequence of the conditions of his imprisonment, unable to say goodbye to his father-in-law, who does not speak English, before he died in 2018.
Mr Coleman, a Functional Manager of the High Risk Management Unit at Goulburn Gaol, gave evidence of the area where the offenders are presently housed. Each is accommodated in a single cell and has his own shower and small backyard. There is a sports yard and a "multi-purpose" area where they can go at rostered times, with an approved companion, who is another prisoner. The offenders not infrequently spend time together under these conditions. Mr Coleman said that prisoners can study externally. There is a library in the gaol as well as an educational television channel which may be accessed 24-hours a day. An education officer for the gaol is likely to be appointed next year to facilitate the education of prisoners. No work is available at Goulburn Gaol for prisoners such as the offenders.
I accept Dr Nielssen's description of Goulburn Gaol as "the most onerous gaol in New South Wales, because of the long periods of isolation, the limited availability of rehabilitation and recreational opportunities and the severe restrictions on contact with family and other communication".
Dr Nielssen recorded that Mahmoud told him that he did not have access to a library and that there were no therapeutic or other programs. Mahmoud, who did not give evidence at the sentence hearing, told Dr Nielssen that he spent "nearly all his time walking in his cell and watching free to air television". Mahmoud told Dr Nielssen that he had been locked in his cell for 24 hours a day on a total of 150 days since his arrest. I note Dr Nielssen's opinion, based on the descriptions of Goulburn Gaol given to him by several prisoners that it "is not conducive to rehabilitation".
I accept that the sentence will weigh more heavily on the offenders because of their conditions of incarceration. It is not possible to predict whether they will be reclassified following the imposition of sentences or during the term of the sentences or whether either one or both of the offenders will be moved to another gaol.

R v Khaled Khayat; R v Mahmoud Khayat - [2019] NSWSC 1817 - NSWSC 2019 case summary — Zoe

At a glance

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Judgment (47 paragraphs)

Legislation Cited (2)

Cases Cited (15)