R v Khan

Supreme Court of NSW|2019-05-23|Before: Bellew J

DPP v Besim [2017] VSCA 158 HJ v R [2014] NSWCCA 21 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 R v Alou (No.4) [2018] NSWSC 221; (2018) 330 FLR 402 R v Barot [2007] EWCA Crim 1119; [2007] Crim LR 741 R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 R v Elomar [2010] NSWSC 10; (2010) 264 ALR 759 R v Kahar; R v Ziamani [2016] 1 WLR 3156; [2016] EWCA Crim 568 R v Khalid and ors. [2017] NSWSC 1365 R v Khazaal [2009] NSWSC 1015 R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691 R v Nahlous [2013] NSWCCA 90; (2013) 228 A Crim R 503 Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 Texts Cited: The Oxford English Dictionary Category: Sentence Parties: Regina (Crown) Ihsas Khan (Offender) Representation: Counsel: P McGuire SC and K Curry (Crown) T Anderson (Offender)

Solicitors: Director of Public Prosecutions (Cth) (Crown) Legal Aid NSW (Offender) File Number(s): 2016/272232 Publication restriction: Nil

THE EVIDENCE ON SENTENCE

The Crown tendered the following on sentence: [2] 1. an affidavit of Dr Sarah-Jane Spencer from the Justice Health and Forensic Mental Health Network dated 10 May 2009, addressing the offender's current mental state; 2. an affidavit of Stephanie Scott-Smith from Corrective Services NSW dated 14 May 2009, addressing the availability of de-radicalisation programs in custody; 3. an affidavit of Geoffrey Poulson from Corrective Services NSW dated 15 May 2019, setting out the offender's current conditions of custody; 4. the offender's criminal history and associated documents; and 5. victim impact statements of 6. Mr Greenhalgh dated 15 May 2019; 7. Mathew and Kristy Cutforth dated 16 May 2019; and 8. Sivei, Pearl and Derek Ah Chong dated 20 May 2019.
The offender's affidavit of 20 May 2019 was read in his case on sentence, [3] in addition to which he gave oral evidence.

PRINCIPLES APPLICABLE TO SENTENCING FOR TERRORISM OFFENCES

At the outset, it is appropriate to set out the general principles which are applicable to sentencing for offences of this nature. I summarised those principles in in R v Khalid and ors. [4] as follows: [5] [23] The primary considerations on sentence in matters of this nature are the protection of the community, the punishment of the offender, the denunciation of the offending, and deterrence, both general and specific. [6] Subjective circumstances and mitigating factors, including considerations of rehabilitation, are to be given less weight. [7] [24] The religious and/or ideological motivation of an offender is relevant to the issue of community protection, as well as to the assessment of the objective seriousness of the offending. [8] Consequently, where it is not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance. [9] As previously noted, weight must be given to the need for general deterrence. This remains so, even if the force of ideological or religious motivations and considerations are such that deterrence may not be effective. [10] [25] Matters relevant to assessing the objective seriousness of offending of this nature will include: (i) the degree of planning, research, complexity and sophistication involved, together with the extent of the offender's commitment to carry out the act(s) of terrorism; (ii) the period of time involved, including the duration of the involvement of the particular offender; (iii) the depth and extent of the radicalisation of the offender as demonstrated (inter alia) by the possession of extremist material and/or the communication of such views to others; and (iv) the extent to which the offender has been responsible, by whatever means, for indoctrinating or attempting to indoctrinate others, and the vulnerability or otherwise of the target(s) of the indoctrination, be it actual or intended. [11]
It follows from those principles that substantial sentences are warranted for offending of this nature. That is so, not only because of the various considerations to which I have already referred, but also because offending of this nature is hard to detect, and is often committed by members of the community who are persons of prior good character, and who have favourable backgrounds. [12] In Barot [13] the Court of Appeal of the United Kingdom summarised the approach to sentencing for offending of this nature in the following terms: 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.

THE VICTIM IMPACT STATEMENTS

Mr Greenhalgh took the opportunity of reading his victim impact statement to the Court during the sentence proceedings. I observed him carefully as he did so. It was evident to me that he remains acutely traumatised by the offending. Quite apart from the inherently violent nature of the offender's attack which caused him to fear for his life, Mr Greenhalgh suffered severe injuries. They included lacerations and stab wounds to the upper right arm, the left middle finger, the left wrist, the left hand side of his face extending from the cheek to the throat, and the left hand side of his stomach. [14] He continues to suffer a number of ongoing disabilities as a consequence of those injuries. He has lost strength in his right arm due to nerve damage. He has lost flexibility in some of his fingers. He suffers from insomnia as a result of ongoing pain. He has been diagnosed with Post-Traumatic Stress Disorder. He has been unable to continue in his employment, which has resulted in a significant financial loss.
Whilst no objection was taken to the victim impact statement of Mr Greenhalgh, counsel for the offender objected to those of Mr and Mrs Cutforth, and the members of the Ah Chong family, on the basis that those persons were witnesses to, as opposed to victims of, the offending. It was submitted that s 16AAA of the Act, which makes provision for victim impact statements, could not be construed so broadly as to permit persons who had witnessed offending to be regarded as victims. In advancing these submissions, counsel for the offender referred me to the decision of the Court of Criminal Appeal in R v Nahlous. [15]
The Crown submitted that s 16AAA of the Act should be interpreted widely. In this regard, the Crown placed particular emphasis on the definition of the term 'harm' in s 16 of the Act, which encompasses physical, psychological and emotional suffering. It was submitted that this definition informed the proper interpretation of the term 'victim' in s 16AAA, and that Mr and Mrs Cutforth and the members of the Ah Chong family were properly regarded as victims who had suffered relevant harm, in the nature of psychological and emotional suffering.
Section 16AAA of the Act is in the following terms: Victim impact statements (1) A victim impact statement, for an individual who is a victim of an offence, is an oral or written statement for which the following requirements are satisfied: (a) the statement must be made by one of the following: (i) the individual; (ii) if the court gives leave, a member of the individual's family; (iii) a person appointed by the court; (b) the statement must describe the impact of the offence on the victim, including details of the harm suffered by the victim as a result of the offence; (c) if the statement is written, the statement must be: (i) signed or otherwise acknowledged by the maker of the statement; and (ii) given to both the prosecutor and the offender (or the offender's legal representative) at a reasonable time before the hearing for determining the sentence to be passed on the offender; (d) if the statement is to be oral, a written or oral summary of the statement must be given to both the prosecutor and the offender (or the offender's legal representative) at a reasonable time before the hearing for determining the sentence to be passed on the offender. (2) However, the court may order that the requirement in paragraph (1)(d) does not apply to a particular oral statement. (3) The Minister may, in writing, prescribe a form for victim impact statements. Such a form does not restrict how victim impact statements may be made. (4) The Minister may delegate, in writing, his or her power under subsection (3) to: (a) the Secretary of the Department; or (b) an SES employee, or acting SES employee, in the Department.
The term 'harm' is defined in s 16 of the Act as including: 1. physical, psychological and emotional suffering; and 2. economic and other loss; and 3. damage.
The term 'victim' is not defined in the Act. The Oxford English Dictionary defines that term as meaning: a person harmed, injured or killed as a result of a crime, accident etc.
In terms of any victim of offending, s 16A(2) of the Act provides that I must take into account on sentence: 1. the personal circumstances of any victim of the offending; [16] 2. any injury, loss or damage resulting from the offending; [17] and 3. if an individual who is a victim of the offence has suffered harm as a result of the offence - any victim impact statement of that victim. [18]
At the offender's trial, the evidence which would otherwise have been given by each of Mr and Mrs Cutforth, and Mr and Mrs Ah Chong, was dealt with by the tender of a statement of agreed facts. [19] Those agreed facts recorded [20] (inter alia) that Mr Cutforth saw the offender thrust a hunting knife, 30cms in length, towards Mr Greenhalgh, who attempted to defend himself by walking backwards and swiping the knife away. Mrs Cutforth recalled her husband saying (in reference to the offender) 'he's got a knife'. She had an unobstructed view of what was taking place from about 20m away. She saw the offender holding a very large knife, about 30cms in length, threatening Mr Greenhalgh. She saw the offender point the knife towards Mr Greenhalgh and move it quickly towards his chest area.
The agreed facts also recorded [21] that Mrs Ah Chong saw Mr Greenhalgh walking near her driveway. He had blood all over him and was calling out 'someone help me'. Mrs Ah Chong saw the offender stabbing Mr Greenhalgh with a knife, and saw Mr Greenhalgh holding his hand up in an attempt to defend himself from being attacked. Mrs Ah Chong heard the offender yelling 'Allah, Allah…they killed our people, they should be killed too'.
The agreed facts further recorded [22] that Mr Ah Chong saw Mr Greenhalgh with blood all over him asking for help. He then saw the offender chasing Mr Greenhalgh with a knife. Mr Ah Chong tried to help Mr Greenhalgh by getting between him and the offender, at which point the offender thrust the knife towards Mr Ah Chong's chest in an attempt to stab him. Mr Ah Chong defended himself by stepping back and using his jacket to deflect the knife. Mr Ah Chong said to the offender 'what are you doing, you're a crazy, what's wrong with you?'. The offender said "these people tried to kill my brothers and sisters in Iraq". Mr and Mrs Ah Chong then saw Mr Greenhalgh run into a nearby hairdressing salon. The offender ran after Mr Greenhalgh and tried to force open the sliding glass door to the salon but he was not able to do so. Mr Ah Chong then picked up a fence paling and told the offender to put the knife down. The offender refused, following which Mr Ah Chong hit the offender in the face with the fence paling before picking up a rock up from the ground. He said to the offender 'put the knife down or I will throw the rock'. The offender bowed his head and said 'kill me, I'm here to die'. Mr Ah Chong then asked Mrs Ah Chong to call the police.
Derek Ah Chong gave evidence at the trial that he was inside his home when he was alerted to the sound of his mother screaming. [23] He ran outside and saw Mr Greenhalgh 'running around with blood coming from his neck and hand' [24] calling out 'somebody help me'. [25] Derek went to the garage of his home and grabbed a broomstick before going to the front of his house where he heard his father tell the offender to drop the knife. [26] Derek saw the offender touching blood on the ground, referring to it as a 'beautiful sight', [27] and shouting 'Allahu Akbar'. [28] He saw the offender stabbing at the glass door of the hairdressing salon [29] and heard him saying 'they are killing my brothers and sisters in Iraq'. [30] Derek then saw his father hit the offender with a fence paling [31] after which he saw his father pick up a rock. [32]
The decision in Nahlous to which I was referred in the course of submissions arose from an appeal by the Crown against a sentence imposed for an offence of using a carriage service with the intention of grooming a person for sexual activity. [33] One of the grounds of appeal was that the sentencing judge had failed to have regard to a victim impact statement provided by the victim's mother. Adamson J (with whom Hoeben CJ at CL and Davies J agreed) concluded that while the term 'victim' plainly included the person who was the subject of the grooming, it was another question whether the term encompassed (in that case) the mother of that person. [34] Having noted [35] that there were Commonwealth offences where the categories of victims could be large, her Honour concluded: [36] [104] The offences committed by the respondent are not, in my view, apposite to include a class of victims beyond the person being groomed. In this context I consider that the word "victim" in s 16A(2)(d) means the primary victim herself and not the loved ones of the victim, who may also suffer by reason of their feeling for the primary victim. Unlike the state legislation, s 16A does not introduce the concept of "family victim". [105] It follows from my view of the meaning of "victim" in the context of these offences is that, if his Honour took into account the harm to the mother, this was more than he was required to do under s 16A. If his Honour did not take such harm into account, there was no error because he was not obliged to do so by s 16A.
For a number of reasons, the decision in Nahlous is of limited assistance in resolving the present issue. To begin with, the decision did not involve a consideration of s 16AAA of the Act because the section had not, at that point, been enacted. Moreover, the position of the person who made the statement in that case (vis a vis the primary victim) was quite different to the respective positions of Mr and Mrs Cutforth, and the members of the Ah Chong family.
As the Crown pointed out, the definition of the term 'harm' in s 16 of the Act contemplates that a victim may be a person who endures psychological or emotional suffering. That is precisely the situation in the present case. Having read their statements, it is clear that Mr and Mrs Cutforth and the members of the Ah Chong family are persons who have been psychologically and emotionally harmed as a result of the offending. The harm they have suffered falls squarely within the definition of that term in s 16 of the Act. Moreover, each of them falls within the definition of the term 'victim' that I have previously set out. [37]
For these reasons, I am satisfied that Mr and Mrs Cutforth and the members of the Ah Chong family are properly regarded as 'victims' for the purposes of s 16AAA of the Act. The Crown's tender of their statements should be accepted.
As I have outlined, Mr and Mrs Cutforth witnessed aspects of the offending. Unsurprisingly, both have suffered from anxiety as a consequence of what they observed. They continue to become emotional when recalling the incident. Mr and Mrs Ah Chong and their son also witnessed aspects of the offending. Mr Ah Chong actively intervened to assist Mr Greenhalgh. Each of them has expressed, albeit in somewhat general terms, feeling a threat to their safety as a consequence of the offending.
Whilst the effect of the offending has been most profound on Mr Greenhalgh, it has had an impact on all of those who have provided victim impact statements. I extend my best wishes to Mr Greenhalgh, to Mr and Mrs Cutforth, and to the members of the Ah Chong family. My hope is that the conclusion of these proceedings today will assist each of them to gain some closure, and allow them to move ahead in a positive frame of mind. In determining the appropriate sentence, I have taken into account those specific considerations set out in the Act relating to victims. [38]

The events leading up to 10 September 2016

On 9 September 2016 the offender conducted internet searches on his laptop computer, a number of which centred upon extremist ideology and acts of violence. [40] They included: 1. a news article headed "Islamic State urges lone wolf terrorists to kill Australians", which reported that Islamic State had called upon Muslims to conduct lone wolf attacks and to kill non-believers wherever they found them; 2. a search conducted by reference to "Australian solders kill civilians in Afghanistan"; 3. footage entitled "Tribute to the Lion of Jihad - Sheik Osama bin Laden"; 4. footage entitled "9/11 September 11th 2001-Attack on the World Trade Centre"; and 5. footage of an interview with Osama bin Laden conducted after the attacks in New York on September 11, 2001.
The offender told a number of medical practitioners and associated health professionals that he viewed this material in order to inspire and motivate him to commit the offence. Clinical notes of an examination conducted 2 days after the offending [41] record that the offender told a mental health nurse that he had been 'on the internet a lot' and 'was getting the motivation to kill'. In a consultation with Dr Reznik on 28 February 2017 [42] the offender said that he 'saw the light' after watching the footage entitled 'Tribute to the Lion of Jihad', and that a quotation from the Qu'ran which appeared at the conclusion of that footage had 'convinced him'. Dr Adams gave evidence that the offender had told him that in the days leading up to the attack on Mr Greenhalgh he had been 'spiritually preparing himself', [43] that he had looked to external sources for spiritual motivation and preparation, [44] and that part of his spiritual preparation involved carrying out internet searches of the kind to which I have referred. [45] The offender also told Dr Adams that he was 'trying to get angry by watching videos of air strikes'. [46]
Dr Rodger Shanahan, an expert in Islamic Studies and a Research Fellow at the Lowy Institute, gave evidence at the offender's trial [47] of footage promulgated by Islamic State in early 2015 depicting a Jordanian pilot being doused with petrol, set alight and burned to death. [48] The offender gave evidence in the sentence proceedings that the footage he watched in the period leading up to his offending included what he described as 'the burning of the pilot'. [49] That was obviously the footage to which Dr Shanahan referred.
I am satisfied that the viewing of all of this material formed part of the offender's planning and preparation for his attack on Mr Greenhalgh. I have set out in further detail below [50] a history provided by the offender to Dr Spencer on 19 September 2016, 9 days after the offending. Bearing in mind that history, I am also satisfied that it was the offender's original intention to carry out the attack on Mr Greenhalgh to coincide with the anniversary of the attack on the World Trade Centre in New York in 2011. However, as the offender himself acknowledged, there was no guarantee that he would have seen Mr Greenhalgh that day, hence he decided to carry out his planned attack when the opportunity presented itself on 10 September 2016.

The events of 10 September 2016

On the morning of 10 September 2016 Mr Greenhalgh went for a walk with his wife near his home in Minto. He was in the habit of doing so, and he generally took the same route. [51] As he passed the offender's premises on that occasion, the offender walked out with what Mr Greenhalgh described as a "little book". [52] The offender stood approximately 1 metre away from Mr Greenhalgh, opened and closed the book, and returned inside. [53] The offender could obviously have attacked Mr Greenhalgh at that point but chose not to do so. I am satisfied that this was because he was waiting for Mr Greenhalgh to be alone. [54]
At about 4.00pm on that day, Mr Greenhalgh left his home to walk to the local shopping mall. [55] As he approached the offender's house, he saw the offender on the verandah. [56] The offender went inside and retrieved a backpack [57] which contained a hunting knife.
There was no issue at the trial that the offender had purchased that knife in February 2016. [58] When asked in the course of cross-examination in the sentence proceedings [59] whether, when he purchased it, it was his intention to use it in a terrorist attack, the offender responded: Not a terrorist attack but I was planning on using it on Jewish students in the University.
That answer prompted the following further cross-examination by the Crown, to which no objection was taken: [60] Q. You were planning on using it on Jews in the University? A. That's correct. Q. Using it in what way? A. To kill them. Q. So you were planning to use it in a terrorist attack? A. I don't think it would be a terrorist attack, it would just be murder. Q. Just a murder? A. That's correct. Q. A murder apparently focussing on Jews at University? A. I was filled with a lot of hatred at that time. ….. Q. Dealing with the question though, you brought (sic) the knife with a view of attacking people of a particular religious faith at University? A. That's correct. HIS HONOUR Q. And you were motivated, I take it, by your extremist beliefs at that time, were you? A. That's correct, your Honour. MCGUIRE Q. And you selected people from the Jewish community because they were not Muslims, is that right? A. Not really, no. Q. Why would you focus a potential attack on people of a Jewish faith? A. Because of the conflict in Palestine. Q. Sorry, say that a bit louder? A. Because of the conflict in Palestine. Q. All right, so you're trying to make a political point in relation to attacking Jewish people because of the conflict in Palestine? A. Not really trying to make a political point, just following my emotions. Q. What was the point of targeting Jewish people at University? A. Revenge. Q. Revenge on what? A. Based on what was happening in Palestine. Q. So a bit like what you told the police, that you were trying to avenge the mistreatment of Muslims when you attacked Mr Greenhalgh, your initial plan was to attack Jewish students at University to avenge mistreatment of Muslims in Palestine, is that right? A. That's correct yes - it wasn't a plan but I was thinking about it. Q. Not just thinking about it; you purchased a hunting knife on the internet? A. That's correct. Q. Apart from using this hunting knife to kill people of a particular religious faith, were you intending to do anything else with it? A. No. Q. You weren't planning on going hunting for animals? A. No. Q. It was to attack and kill people, wasn't it. A. That's correct. … Q. How long had you (sic) planning to attack Jewish people at University? A. I can't remember. Q. Was it a period of months, weeks, days? A. Possibly months. Q. So-- A. I wouldn't say I was planning, I was just thinking about it, contemplating. Q. When you say University, these are people at Sydney University, the campus that you attended? A. That's correct, yes. Q. Were they people of a Jewish faith who were also doing the pharmacy degree with you? A. No. Q. Do you know which group of people you were going to carry this attack out on? A. Just people wearing the Jewish headgear, the kippah. Q. So anyone at university wearing the Jewish headgear, you decided would be worthy of an attack? A. That's correct. Q. Just so we're clear, your plan was to kill somebody wearing a Jewish headpiece? A. It wasn't a plan but I was thinking about it.
It is necessary to emphasise that the offender has not been charged with any offence arising from any plan he may have had to kill Jewish students at Sydney University. He is not to be punished for conduct which is not the subject of the offence of which he has been found guilty by the jury. [61] That said, this evidence remains relevant because it is indicative of the depth of the extremist ideology to which the offender subscribed in the period leading up to his attack on Mr Greenhalgh. [62]
Having retrieved the backpack containing the knife, the offender returned outside. [63] He stood up and rushed towards Mr Greenhalgh. [64] With the knife in his hand [65] he commenced to attack Mr Greenhalgh, repeatedly stabbing him in the head, neck, arms, hands, torso and stomach. [66]
In fear of his life, Mr Greenhalgh fled from the offender. [67] The offender pursued him. [68] Mr Greenhalgh managed to take refuge in a hairdressing salon which was operating from a garage attached to the house of a nearby resident. [69] The CCTV footage [70] of Mr Greenhalgh fleeing from the offender before entering the safe confines of the hairdressing salon was graphic. It demonstrated, amongst other things, that he was losing a significant amount of blood as a consequence of the multiple stab wounds which had been inflicted upon him by the offender, particularly those to his right arm.
After Mr Greenhalgh entered the hairdressing salon, the door was locked behind him. The offender then attempted to gain entry into the salon through the locked door, but he was unable to do so. He then touched some of the blood left by Mr Greenhalgh on the driveway of the premises and said: [71] What a beautiful sight.
When later interviewed by police, the offender said: [72] …. there was blood absolutely everywhere. Beautiful sight. Beau-ti-ful.
The offender was seen to point to the sky whilst standing outside the door of the hairdressing salon and say: [73] It was all for him.
Witnesses to the incident also heard the offender variously shouting: [74] These people try to kill my brothers and sisters in Iraq …. kill me, I am here to die…kill me, kill me … I came here to die … call the police, call the police, I want to die today.
When attacking Mr Greenhalgh, the offender was also heard to shout 'Allahu Akbar', [75] an Arabic phrase meaning 'God is great'.
The offender later told police [76] that when he stabbed Mr Greenhalgh he intended to kill him. Consistent with that, a history recorded by Dr Spencer in the clinical notes of her examination of the offender on 19 September 2016 (nine days after the attack) record the following: [77] …. the offender said that he wanted to 'chop (Mr Greenhalgh's) head off … inscribe IS on his forehead … and maybe disembowel him'.
When asked by police what stopped him from killing Mr Greenhalgh, the offender said: [78] Oh, I tried, but, uh, I'm not very good. You know? It's my first time, actually hurting someone, physically. I've never slapped or punched someone in the face. So I'm a bit, bit of an amateur. Unskilled assassin.
As I have already outlined, [79] Mr Greenhalgh was assisted in fleeing to safety by Mr Ah Chong. But for the courage and fearlessness of Mr Ah Chong, there is a distinct likelihood that the offender would have achieved his stated aim of killing Mr Greenhalgh. Mr Ah Chong placed the interests and welfare of Mr Greenhalgh before his own. He acted completely selflessly, and should be praised and admired for the extraordinary bravery he displayed in defending a fellow member of the community.

The offender's arrest

When the police arrived at the scene, the offender ran towards their vehicle and stabbed at the closed passenger side window with sufficient force to fracture the blade of the knife. [80] The police then drove the vehicle into a side street before getting out and demanding that the offender discard the knife. He refused to do so on several occasions, as a consequence of which police were forced to repeatedly apply a Taser to him in order to subdue and arrest him, and remove the knife from his possession. [81] As he was being subdued, the offender attempted to cut the Taser wire with the knife. [82] In the course of these events, the offender continued to make statements which included: [83] I'm gunna die today … just shoot me … why didn't you shoot me?

THE OFFENDER'S IDEOLOGY

Following his arrest, the offender participated in a recorded interview with police. [84] A number of statements he made in that interview inform both the circumstances of his offending generally, and the ideology by which he was motivated in particular.
When asked if he could tell police why he was being interviewed, the offender responded: [85] I tried to slaughter a guy.
When asked why he tried to slaughter a guy, the offender said: [86] Oh, Muslims in Iraq and Syria are getting killed day and night, under the … drones … I don't think it's fair that people live in peace here while people there are living under your air force's bombs … yeah, dropping bombs on women and children. And men. You know? For what reason? … It's absolutely ridiculous, you know? …. Any sane mind would, like, say, hey man. It's not right".
When asked how he thought that attacking Mr Greenhalgh would prevent people being killed overseas, the offender responded: [87] Eye for an eye… maybe if I butchered a guy, the Government would think, you know, again about sending the air force.
The offender told police that 'the western world was the same' and that 'America's crimes (were) on Australia as well'. [88] He confirmed [89] that he did not know Mr Greenhalgh personally, but said: … he hurt me. Whole, the whole world is hurting me. 'Cause Muslims are one body. Hurt one of us, you hurt us all.
In relation to his targeting of Mr Greenhalgh, the offender told police: [90] Yeah, well, I've seen him for a few weeks. … he was wearing, like, pro-America t-shirts. That's the only reason.
The clinical notes of a consultation with Dr Spencer on 19 September 2016 recorded the offender providing a history which included the following: [91] had my eye on him for a while… had idea to do it on Sunday … 15th anniversary of 9/11 … Sunday … Christian day … guy was walking past and I was talking to god … and there was no guarantee I was going to see him on Sunday … I had my eye on him for a few months … that I could kill him and dispose of the body … and never get caught … Islamic state brothers gave a call to Muslim brothers and sisters to rise up … kill them … kill them in their houses … on their streets … I don't mind killing anyone … Australia and America and UK … streets awash with blood … T-shirt with American flag … thought target this man … Australian society is filthy and dirty but the call came … and I am going to go ahead full steam …
A photograph of the t-shirt which the offender had seen Mr Greenhalgh wearing, and which caused the offender to target him, was part of the evidence in the trial. [92] It bore a stars and stripes logo on the front, accompanied by the words: Home of the free, because of the brave.
Those words were printed over a background of a well-known image depicting military personnel raising the flag of the United States of America following victory in the battle of Iwo Jima during World War II.
The offender was asked by police about his extremist ideology as it applied to Australia: [93] Q98. Do you remember when Islamic State put out a video showing that they beheaded Americans, and British journalists? A. The Americans and British commit some of the most horrific, brutal crimes in Afghanistan and Iraq … Q103. So, does that mean British people are bad people? A. Of course. Q104. Just generally, they're bad people? A. Of course, 'cause they're like their army. Q105. O.K. Same with Americans? A. Americans are even worse. Q106. What about Australians? A. Same thing.
The offender was then asked: [94] Q113. So earlier when we were talking, you mention Fahad (sic) Jabar. Fahad (sic) Jabar. A. The inspiration. The role model. Lion. Q114. Tell me about Fahad (sic) Jabar. A. Oh, I just from the news. I don't remember anything about him. Like, like, I'm sorry, I don't know him personally. Q115. What did he do? A. He, he shot a cop, in Parramatta. Q.116. O.K. what did you think about that? A. Oh, I, I thought, I thought he was a very noble, noble man. With a good heart and soul. Inshallah, he's a green bird, hanging off the throne of God, Allah Subhanahu Wa Ta'ala. Q.117. Do you agree with what he did? A. Yes. Q.118. Why? A. Why? Because there's a war against Islam. There is a war against Islam, you know?
Farhad Jabar, described by the offender as the 'inspiration', the 'role model', and the 'lion', was a 15 year old youth who, in 2015, shot and killed Curtis Cheng, a police accountant, in Parramatta before being killed himself. [95] In terms of the offender's description of Farhad Jabar as a 'green bird, hanging off the throne of God', Dr Shanahan explained [96] that in Islamic law, the soul of somebody who becomes a martyr as a consequence of undertaking jihad, or a violent struggle, is believed to inhabit the soul of a green bird in heaven.
The offender told police that he considered himself to be discharging his obligation of jihad by stabbing Mr Greenhalgh. [97] He described himself as 'a proper Muslim'. He said that 'there were no real Muslims in Sydney' and that 'most of them are hypocrites'. [98] He described Muslims living in Sydney as 'cowards' because 'they don't do anything; they're too peaceful'. [99]
When asked how he would have felt had Mr Greenhalgh died, the offender replied: I would feel a bit of, sense of justice in the world. [100]
When asked how he felt about the fact that he (i.e. the offender) did not die in the incident, he said: [101] It's God's will. And I'm content with it. Bit bummed about it, but, like, I thought if you just stick the knife in a cop's face, they'll shoot you. But they had the electrodes on me. And when I took a step, 'bzzzzz'. And my whole body just turned into a, like, a zombie, and I just fell…Like a wooden board.
Finally, the offender was asked the following: [102] Q202: How do you feel now about what you did today? A: What about it? Q203: How does it, I mean, right now, how do you feel about what you did? Do you think it was the right thing to do? A: Yeah. How do you feel about eating a Picnic bar? You don't really think about it, do you? Q204: Right A: … Q205: Well, this is a bit more extreme than eating a Picnic - - - A: Oh, I think it's the same. Q206: O.K. A: Well, to me it is. Q207: So this is just normal? A: Yeah. Q208: Do you think this is normal? A: Is it normal for you to drop bombs in Iraq and Syria? Q209: Well, that's not really what we're talking about at the moment. A: Oh, it's the same thing. Uh - - - Q210: Mmm, yep. A: You go to go back to …it's a backbone, mate. It's the backbone. Q211: Do you regret what you are doing? A: Nah, I don't. Q212: Or you did? A: Not at all.

THE SEARCH OF THE OFFENDER'S RESIDENCE

On 11 September 2016, the day following the offending, police searched the offender's residence. Included in the items found was the offender's handwritten journal. [103] Entries in that journal also inform the circumstances of the offending, and the extremist ideology which lay behind it. Significantly, the journal had been left open on a page which contained (inter alia) the following entry: [104] I couldn't give two shits what kuffar say - I want it to go global so the believers can see my deed alwaj…Sunday's operation is easy as fuck, I like ease. Benefit is Dhul Hijjah martyrdom. [105]
There is an overwhelming inference, both from this entry and from the offender's history to Dr Spencer, [106] that the reference to 'Sunday' in that entry was a reference to Sunday, September 11, 2016. That was the day following the attack on Mr Greenhalgh. It was also the 15th Anniversary of the terrorist attack on the World Trade Centre in New York in 2001. In this regard, Dr Shanahan gave evidence [107] that those who subscribe to the ideology of violent jihad generally reference their actions to past events, so that if a violent act can be perpetrated on the anniversary of another violent act it is considered beneficial. The offender told Dr Spencer that this was his intention, but that there was no guarantee that he would see Mr Greenhalgh on the Sunday, the inference being that he decided to attack Mr Greenhalgh when he saw him walking alone the day before.
Another entry in the journal was in the following terms: [108] Qualities I want: 1. 30%, 2. 20%, 3. 10%, 4. 35%, 5. 5% 1.Soft gentle manners of Osama bin Laden. 2. No fear of the blame of blames of Anwar Awlaki. 3. Intellect patience of Tareh Mehana. 4. Fighting skills/love for Allah of Tamerlan Tsarnaev. 5. Nonchalance of Dzhokhar Tsarnaev.
Bearing in mind the names of those listed in this entry, Dr Shanahan gave evidence that: 1. Osama bin Laden was the Commander of al-Qaeda who had a direct connection with Islamic State; [109] 2. Anwar al-Awlaki was a former senior member of al-Qaeda who became popular with radical Islamists in advocating support for violent Jihad, al-Qaeda and martyrdom; [110] and 3. Tamerlan Tsarnaev and Dzhokhar Tsarnaev were two of those responsible for the so-called 'Boston Marathon bombing' in 2013. [111]
Another entry in the offender's journal dated 1 September 2016 [112] read (in part) as follows: Mentally prepare yourself for the heat of jihad in Australia.
A further entry in the journal [113] was in the following terms: You have to think global. What can you do on a global scale.
Copies of extremist publications which generally promoted violent ideology were also found by police. These included 'The Book of Jihad' [114] and 'The Story of an American Jihaddi Part One'. [115] In the course of his evidence before me, the offender admitted downloading these publications himself. [116] Having initially said that he didn't think that he had read them, [117] the offender then said that he had read one of them, [118] and had read part (but not all) of the other. [119]
A laptop computer, which was still powered, was also found in the course of the search. The tabs which were left open on that computer included some of the footage to which I have previously referred [120] as well as a document created by the offender [121] entitled 'Role Models in Islam (aka the Honor list)'. That document set out the names of a number of people associated with terrorist attacks, including Osama bin Laden;

Submissions of the Crown

Whilst the Crown accepted that the offending was unsophisticated in the sense that it involved one person stabbing another, it was submitted that it was nevertheless objectively serious and fell towards the higher end of the scale. Apart from the nature of the attack, the injuries sustained by Mr Greenhalgh as a result, and the offender's extremist ideology, the Crown pointed to the considerable planning which had been undertaken by the offender which, it was submitted, included: 1. sourcing and purchasing the knife; 2. identifying and selecting Mr Greenhalgh as the proposed victim of the attack; 3. ensuring that the offending took place on a date proximate to the 15th anniversary of the terrorist attacks in the United States on 11 September 2001; and 4. obtaining inspiration and motivation by viewing extremist material in the period leading up to the offending.

Submissions on behalf of the offender

Counsel submitted that the offender was to be sentenced for what he did, namely: 1. purchasing the knife; 2. identifying Mr Greenhalgh as the victim; and 3. attacking Mr Greenhalgh.
Counsel submitted that if the evidence of the offender's extremist ideology were put to one side, what he had in fact done was more akin to a charge of attempted murder.
Counsel further submitted that the nature of the conduct encompassed by s 101.1(1) of the Code was necessarily wide. He submitted that at the most extreme end, and at a level which would be considered to be the most objectively serious, fell conduct resulting in the deaths of multiple people, and/or the destruction of major infrastructure.
Whilst accepting its gravity, counsel for the offender submitted that the offending fell at or below the mid-range of objective seriousness having regard to the wide ranging circumstances in which such offending can be committed.

Consideration

In assessing the objective seriousness of the offending, the first matter to be observed is that it was not spontaneous. On the contrary, it was planned over a significant period of time. That planning involved (inter alia) specifically targeting Mr Greenhalgh over several months, purely because of a T-shirt the offender saw him wearing, and which bore an image which would be objectively viewed as innocuous, but with which the offender took issue because it was at odds with his extremist views [122] .
The planning also included waiting until Mr Greenhalgh was alone to attack him, and carrying out the attack at a time proximate to the 15th anniversary of the terrorist attacks on September 11, 2001. It was in this way that the offender sought to achieve his stated desire to 'go global so the believers could see (his) deed)' [123] , or in other words, to obtain international recognition for his offending. The offender's planning also involved drawing inspiration and motivation in the period leading up to the attack by viewing extremist footage.
Planning aside, the offender's attack on Mr Greenhalgh was, of itself, violent, ferocious and inhumane. The offender did not just set out to harm Mr Greenhalgh. He was on a mission to kill him. But for the intervention of Mr Ah Chong, it is highly likely that the offender would have achieved his stated aim.
Further, and whilst I accept that the offender is to be sentenced for what he did, to divorce his conduct from the violent ideology which underpinned it would be both artificial in the extreme, and fundamentally wrong in principle. The authorities to which I have referred make it clear that the depth and extent of an offender's radicalisation is relevant to an assessment of the objective seriousness of offending of this kind. [124] It would also be wrong in principle to sentence the offender by seeking to draw some comparison between the present offence and an offence of attempted murder. This is because it is the offender's religious and ideological motivation, and his intention to intimidate the Government, which distinguishes his acts from those which might be committed in pursuit of private ends, and which come within established offences against the person. [125]
In stabbing Mr Greenhalgh, the offender was motivated by an entrenched, immoral and depraved ideology which sought to justify attacking and killing innocent persons in the name of a religious and/or ideological cause. At the time of his attack on Mr Greenhalgh, the offender was unequivocally committed to that ideology. He was thus an unequivocally committed terrorist. When questioned by police about the circumstances of his offending only a matter of hours afterwards, the offender's demeanour was one of callous indifference towards what he had done. The offender's analogy between his attack on Mr Greenhalgh, and the experience of eating a chocolate bar, was chilling in the extreme.
At one point in time, Australia was largely isolated from acts of terrorism of a kind experienced by those living in other parts of the world. As a consequence of that isolation, the citizens of this country were, at least for a period, generally not exposed to harm at the hands of those who adhered to extremist ideology. [126] The present offending demonstrates, regrettably, that this is no longer so. The conduct of the offender, motivated and inspired as it was by his extreme, unsound and wholly irrational views, exposed Mr Greenhalgh to the possibility of death, within what should have been the safe sanctuary of the residential community in which he lived. Mr Greenhalgh, like all members of the community, had a right to enjoy a number of fundamental freedoms. They included the right to walk to his local shopping mall, in broad daylight, on a Saturday afternoon, without the fear of being subjected to an unprovoked and life threatening attack, of which he was the specific target because this offender took issue with the image on a T-Shirt that he had seen him wearing. In that sense, the conduct of the offender was not just an attack on Mr Greenhalgh. It was an attack upon the community as a whole. It represented a violation of the most fundamental of democratic rights to which all members of the community are entitled.
The fact that one may envisage offending of greater gravity, perhaps involving multiple victims, does not mean that the present offending was not serious. Clearly, it was. In my view, the degree to which the offending was planned and pre-meditated, its ferocity, the injuries which it caused, and the repulsive and evil ideology which motivated it, place it above the mid-range of objective seriousness.

The degree to which the offender has shown contrition [127]

The prospects of the offender's rehabilitation [128]

As I have previously noted, [129] an affidavit of the offender of 20 May 2019 was read in which the offender said (inter alia) the following: [130] Since being in custody from 10 September 2016 I have been spoken to by a series of nurses and psychiatrists, including Dr Jonathan Adams, Dr Robert Reznik and Professor David Greenberg. I have told all of those doctors and nurses the truth about the Jinn. I have never tried to embellish my symptoms but I at times tried to minimise the radical ideology I held at the time.
In his affidavit, the offender described his actions on 10 September 2016 as 'evil'. [131] He expressed his remorse [132] for attacking Mr Greenhalgh. He maintained [133] that he was now a 'different person' who had 'changed (his) thinking'. He went on to say: [134] 17. As at 2016 I was misguided and misled by Islamic State about what my religion was about and should be about. 18. I know and believe now that Islam is a religion of submission to the Creator, it is a religion of peace. It is not about killing innocent civilians. 19. When I saw my police interview played in court, I felt shocked that I could say these things or have those thoughts. 20. When I look and hear what I wrote in my journal, I disagree with it completely. 21. Terrorism has no religion. I know now that what I did was not true to Islam. Islamic State has no place in Islam. I believe now that nature is peaceful; and I see God reflected in nature, therefore He must be peaceful.
The offender also said [135] that at the time of the offending he believed that Islamic State 'spoke the truth about Islam', but that he now realised that this was wrong. He attributed that realisation, at least in part, to having spoken with religious scholars and advisers who had taught him that you 'cannot take isolated verses of the Qu'ran and understand them as promoting violence'. In expressing a willingness to undertake such de-radicalisation programs as may become available to him in the future, [136] the offender said: [137] I do not hate Australia or Australians. I thank God for letting me be born in Australia. I hope to one day be able to reintegrate in Australian society and to make a positive contribution. Even in the peak of my radicalisation I could not bring myself to harm a person I thought was an Australian. I harmed Mr Greenhalgh because I believed he was an American. I no longer have those same views that I had in 2016 that would prompt me to harm anyone anymore.
The offender also said: [138] I also hope for an opportunity to improve myself and use my mind in a positive way, by studying when I am in custody, if my classification will allow it. I would like to study medicine when I eventually leave custody. Eventually I want to become a cardiologist. I do not know if this is possible but that is my long term goal.
The offender concluded his affidavit by saying: [139] I wish to apologise again to Mr Greenhalgh, his family, the people in Minto and to the Australian community in general.
In his oral evidence before me, the offender again expressed his remorse and apologised to Mr Greenhalgh. [140] He said that at the time of the attack he 'hated' Mr Greenhalgh but now 'could not believe (he) got it so wrong'. [141] He said: [142] I've messed up a completely innocent man's life and I have to live with this for the rest of my life. Mr Greenhalgh, you're my brother in humanity. I love you for the sake of God. My prophet taught me that God would not have mercy on you if you are not merciful to the creation. Based on that I have to have mercy on you, your family, your loved ones, the Minto community are affected, the Australian community that are affected, or God's not going to have mercy on me.
The offender accepted that at the time of his attack on Mr Greenhalgh he held extremist beliefs to which he had adhered since he was 18 years of age. [143] At one point in his evidence [144] the offender described himself as a 'Jihobbyist' which, as I understood it, was a term he used to describe a person who treated adherence to extremist views as something in the nature of a hobby. He maintained that this was no longer the case. [145]
The offender was taken in cross-examination to that part of his affidavit [146] in which he referred to 'minimising' the radical ideology in his histories to medical practitioners: [147] Q. You say in your affidavit you tried to minimise the radical ideology I held at the time, does that mean that you lied to the psychiatrists? A. To some extent, yes. Q. And that lie was to downplay the extremist ideology and to increase the role that the jinn had, is that right? A. No, that's incorrect. Q. What was the lie? A. The lie was about Anwar al-Awlaki. I told Dr Robert Reznik that I listened to only peaceful lectures of him, when in fact I had listened to radical lectures on YouTube. Other stuff I told Dr Reznik that I didn't remember who Abeer al Janabi was. That's a lie, of course. I remember Abeer al Janabi. That was the reason why I attacked Mr Greenhalgh. I didn't have access to the reports, Mr Crown, but I'm just trying to remember. Q. Do you remember telling Dr Reznik that you couldn't remember things that you said to the police? A. Yeah, that's correct (sic) as well, like I lied about that as well. Q. Why were you lying to the psychiatrist? What was your purpose? A. I wanted a better report. Q. Wanted a better report? A. Like that didn't focus on my radical beliefs. Q. And is it the case, Mr Khan, you wanted a better report so that you might be found not guilty by reason of mental impairment? A. I don't understand the process to get not guilty reasons of mental illness but I would say that's incorrect. Q. Why did you want a better report? A. Because I didn't want them to focus on my radical beliefs. Q. Why didn't you want them to focus on your radical beliefs? A. Because I wanted a better report. Q. You didn't want to be found guilty, did you? A. Yeah, that's true.
The offender said that he did not support the military involvement of Americans, Australians and western allies in the Middle East, [148] but maintained that he did not like Islamic State, saying that it was 'better if they're gone'. [149] He said that whilst he regarded the killing of innocent Muslims overseas as a tragedy, he did not consider that innocent people should be killed in retaliation. [150]
Having identified the occasion on which Mr Greenhalgh first gave evidence in 2018 as the "catalytic point in (his) de-radicalisation", [151] the offender was asked what it was about that occasion that had caused him to change his views: [152] Q. What was it about his evidence that caused you to change your views? A. I saw how - I targeted him because of the T-shirt. I saw how insignificant that T-shirt played a role in his life. He wasn't the man that I thought he was and that's why I realised everything I've done has been based on pure misguidance. Q. Mr Khan, apart from the T-shirt, what else did you know about Mr Greenhalgh at the time you attacked him? A. Nothing, I made an insinuation. Q. You're now saying you realise the T-shirt was insignificant. Can I suggest to you at the time of the attack you knew that it was just a T-shirt, didn't you? A. I thought the T-shirt represented views that he'd support war crimes. I wasn't thinking straight. Q. The basis for that was that the T-shirt had some American motif on it? A. Something, yeah, yeah. Q. So is it the case that if anyone else had walked down the street in Minto that day with an American flag on their T-shirt, you might have attacked them instead? A. Possibly.
The offender was asked: [153] Q. Could it be that you've decided to tell the Court you no longer hold these extremist views because you realise that you'll get a lighter sentence if you say that? A. I'm honestly not looking for a lighter sentence, I think Mr Greenhalgh is right, that I get a heavy sentence, so I'm not trying to play around the bush or anything, beat around the bush. I'm speaking from the bottom of my heart and my views have changed, but I'm not looking for a lighter sentence.
The offender was also asked whether he continued to support attacks in the Middle East: [154] Q. Do you support attacks in the Middle East to avenge the deaths of innocent Muslims? A. It depends on who. Q. Tell us what you mean by that? A. If it's war criminals from the army, then I would support that but if not war criminals in the army then I wouldn't support that.
He was also asked about his current views in relation to martyrdom: [155] Q. What are your current thoughts about martyrdom? A. I'm not against Jihad, like the understanding of Jihad needs to be defined. It's not killing innocent civilians or running people down, flying a plane into buildings. It's just military conflict, soldier versus soldier, the US army on the battlefield, to defend Muslims, not offensive warfare or anything like that. Q. So Jihad is still justifiable if it's between armies in a war environment, is that what you're saying? A. That's correct, yes. Q. What about martyrdom? A. If someone is in a war environment and he dies fighting, then he would get the reward of being a martyr but these terror attacks that happen around the word, I don't think they're martyrs. Q. At the time of the attack on Mr Greenhalgh, you said a number of times it was your intention for yourself to be killed? A. That's correct. Q. It was your belief at the time that if you had been killed, you would have been rewarded by Allah by being promoted to a high level in Paradise? A. And I could be with my mum, yes. Q. Sorry? A. I could be with my mother. Q. You would be promoted to a higher level in Paradise, that was your belief at the time? A. Yes. Q. What do you now believe, what do you think might have happened to you if you died after you attacked Mr Greenhalgh? A. If Constable Savage pulled that trigger, I would have been in hellfire because Prophet Mohammad, peace be upon him, said he will go into Paradise and someone asked him who are you referring to and he said the one whose neighbour is not safe from his home. Mr Greenhalgh was my neighbour and he was not safe from my home so based on that, I would not be entering Paradise.
The Crown submitted that given its timing, I should approach the offender's evidence with scepticism. The Crown submitted, in particular, that the offender's assertion that the occasion on which Mr Greenhalgh attended Court in 2018 to give evidence was the catalyst for his change of views made little sense, and that the offender continued to pose a danger to the community.
The Crown also pointed to the fact that in his affidavit [156] the offender had said that in 2016 he was 'off his medication'. The Crown submitted that this served as an indication of a connection between the offender's failure to take prescribed medication, and his adoption of radical views. The Crown accepted, as I understood it, that whilst ever the offender remained in custody and subject to a strictly supervised medical regime, there was at least a possibility that he may follow a path of de-radicalisation. However, the Crown submitted that there was necessarily a difficulty in forecasting what may happen if the offender were not subject to such a controlled regime at any time in the future.
It was submitted on behalf of the offender that his explanation of the catalyst for his de-radicalisation was to be viewed through the prism of a person who, on any view of the evidence, suffered from a mental illness. Counsel described the offender's decision to give sworn evidence as 'brave'. He submitted that I would conclude that he was genuinely remorseful for his offending, and that his prospects of rehabilitation were very good. Indeed, counsel submitted that in many ways, the offender had already rehabilitated himself as evidenced by (inter alia) his expressed willingness to undertake de-radicalisation programs in custody, although it should be noted that on the evidence before me, it is unlikely that such programs will be available to the offender until the latter part of any custodial sentence I impose. [157]
At the risk of stating the obvious, at the time of his offending the offender held extremist beliefs which advocated violence in the name of religion. On his own admission, he had held those beliefs since he was a teenager. The offender's categorisation of his adherence to those beliefs as being in the nature of a hobby was, to say the least, bizarre. The simple fact is that his views were so deep seated that at the time he purchased the knife which he ultimately used to stab Mr Greenhalgh, he was contemplating carrying out a different act of terrorism which, had it occurred, would have had even more devastating consequences. As a matter of common sense, views which are so deeply held are unlikely to be abandoned in an instant, if they are abandoned at all. The offender accepted that to be the case, describing the process of de-radicalisation as gradual. [158]
I accept that the offender's explanation of the catalyst for the commencement of his asserted deradicalisation must be viewed and assessed against a background of somebody who is, on the evidence, suffering from a mental illness. That said, the explanation is largely, if not completely, lacking in cogency. The connection between Mr Greenhalgh giving evidence, and the commencement of the offender's process of deradicalisation, remains unclear to me, particularly in circumstances where the offender conceded that it was possible that if he had seen someone else walking in Minto on the afternoon of 10 September, 2016 he may have attacked them instead. I remain at something of a loss to understand precisely how it is that Mr Greenhalgh's attendance to give evidence resulted, for example, in the offender losing his previously unabashed and unbridled admiration for the likes of Osama bin Laden, or changing his mind about the events of September 11, 2001.
Necessarily, the offender's prospects of rehabilitation are dependent, in large measure, upon a complete and unconditional abandonment of the ideology he held when he attacked Mr Greenhalgh. I am unable to accept the submission that the offender has reached the point where he is substantially rehabilitated. That conclusion would necessarily depend upon a finding that his evidence before me should be accepted, and that is a finding which I am not able to reach. Quite apart from the matters to which I have already referred, the fact that the offender admitted lying to medical practitioners in order to be portrayed more favourably in their reports is necessarily significant. At least some of those reports, if not the majority of them, incorporated the opinions which went directly to the offender's defence of mental illness. It was not simply a matter of the offender lying in order to be portrayed more favourably in those reports. It was, as the offender effectively admitted, a matter of lying in the hope that the jury would find him not guilty on the grounds of mental illness. In acting as he did, the offender demonstrated an unequivocal preparedness to conduct himself in a completely manipulative fashion, and to consciously tell lies in order to suit his own purposes. The significance of the fact that subject of his lies on those occasions was, at least in part, the very ideology which he now maintains that he has abandoned, needs no further comment.
If the offender maintains his current stated mindset, then his prospects of rehabilitation may be favourable. However, I am not persuaded that he will do so. At its highest, his evidence should be regarded as some preliminary indication of a stepping away from his previously held beliefs. For the same reasons, and whilst the offender's expressions of contrition were unequivocal, I remain sceptical about their veracity. Time will tell whether they prove to be genuine.
In any event, and although issues of rehabilitation require consideration, they are to be afforded less weight in matters of this nature. [159]

Personal deterrence [160]

In circumstances where I remain unconvinced about the truthfulness of the offender's remorse and his asserted renouncement of his previously held ideology, personal deterrence remains a relevant factor on sentence. This is particularly so given some of the statements made by the offender to police and medical practitioners regarding his offending, to which I have previously referred. [161]

The character, antecedents, age, means and physical or mental condition of the offender [163]

The offender was born in Australia on 12 December 1993. His parents had migrated to Australia from Bangladesh that year. [164] He was 22 years of age at the time of the attack on Mr Greenhalgh and is now 25. In about 2001, the offender's parents purchased a home in Minto. His father left the family in 2008 and the offender and his only sibling, a sister who is six years his senior, were cared for by their mother. [165] The offender's sister moved out of the Minto premises with her husband in January 2014. From that time until her death from cancer, the offender's mother was his principal carer. The offender appears to have some ongoing relationship with his sister and brother-in-law.
Between 2006 and 2011 the offender attended Hurlstone Agricultural High School, a selective secondary school. [166] In his Higher School Certificate in 2011 he achieved an Australian Tertiary Admission Rank of approximately 96. In 2012 he commenced studying a Bachelor of Pharmacy Degree at the University of Sydney. [167] The level of his academic performance is reflected in the fact that he was awarded a number of credits and high distinctions. [168] The offender is, to say the least, a highly intelligent man.
In the course of submissions, counsel for the offender made reference to the principles applicable to the sentencing of youthful offenders. [169] In my view, those principles have no application in the present case. The offender was not a youth at the time of his attack on Mr Greenhalgh. On the contrary, he was a mature and intelligent 22 year old. Even it were the case that youth was a relevant factor, its weight would be diminished given the nature of the offending. [170]
The offender appeared before the Campbelltown Local Court in 2013 in respect of charges of larceny and destroying or damaging property, such property being Australian flags which were on display at a residence in his local area. The charges were dealt with pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). Whilst the offender is to be regarded as a person of prior good character, that factor is of reduced significance in a case such as the present. [171]
The offender's history of mental illness includes his admission to Campbelltown Hospital in April 2013 with a provisional diagnosis of OCD, and a differential diagnosis of prodromal psychotic illness. [172] At the time of his discharge, some 10 weeks later, the confirmed diagnosis was one of OCD.
As I have noted, differing opinions were expressed by the experts called in the trial as to the offender's mental state at the time of his offending. Dr Adams and Dr Reznik concluded that the offender was suffering from schizophrenia. Professor Greenberg's opinion was that the offender was suffering from OCD. In her affidavit tendered by the Crown, Dr Spencer expressed the opinion that the offender currently suffers from schizophrenia for which he is being medicated in custody. [173]
It was the Crown's position that it was not necessary for me to reach an affirmative conclusion as to the nature of the offender's present mental illness and I did not understand counsel for the offender to cavil with that proposition. On any view of it, the offender suffers from some form of mental illness, be it schizophrenia or OCD. The question is how that impacts upon sentence generally, and the question of general deterrence in particular.
The Crown submitted that in circumstances where there was no causal connection between the offender's mental illness and his offending, any moderation of general deterrence should not be great. The Crown further submitted that the evidence established that the offender's conditions of custody were not rendered any more onerous on account of his mental illness. In this regard, the Crown pointed to the affidavit of Dr Spencer [174] which, it was submitted, established that the offender was being treated satisfactorily. The Crown submitted that in all of these circumstances, general deterrence remained an important consideration.
Whilst accepting that there was no causal connection between the offender's mental illness and his offending, counsel for the offender submitted that mental illness remained a relevant consideration on sentence in terms of general deterrence. Counsel took particular issue with the proposition advanced by the Crown that the offender's conditions of custody were not rendered more onerous as a consequence of his illness. He submitted that the fact that the offender had a mental illness which required treatment at all necessarily rendered his conditions of custody more onerous than might otherwise be the case.
On any view of the evidence, the offender suffers from some form of mental illness. In Director of Public Prosecutions v De La Rosa [175] McClellan CJ at CL set out the following principles regarding the relevance of mental illness on sentence: [176] 177 Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing. … They can be summarised in the following manner: ● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. ● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. ● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced. ● It may reduce or eliminate the significance of specific deterrence. ● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public.
The offender's mental illness was not, in any way, causally connected to his offending. That said, I am unable to accept the submission of the Crown that the fact that the offender's current mental health is being satisfactorily treated in custody leads to a conclusion that his custodial conditions are not rendered more onerous than might otherwise be the case. The fact that the offender has a mental illness at all must have some effect upon his conditions of custody and I have taken that into account. However, given the nature of the offending in the present case, general deterrence remains relevant and is not significantly moderated by mental health considerations.

ORDERS

The Act requires that I take into account the need to ensure that the offender is adequately punished. [177] Necessarily, the entirety of the matters that I have considered impact upon that consideration.
It is common ground that the offender has been in custody since his arrest on 10 September 2016 and that any sentence I impose should be expressed to commence on that date.
I therefore make the following orders: 1. The offender is convicted. 2. The offender is sentenced to imprisonment for a period of 36 years, commencing on 10 September 2016 and expiring on 9 September 2052. 3. I specify a non-parole period of 27 years imprisonment, commencing on 10 September 2016 and expiring on 9 September 2043. 4. The offender will be eligible for parole on 10 September 2043 and his sentence will expire on 9 September 2052. 5. Pursuant to s 16F of the Crimes Act 1914 (Cth) I explain to the offender that service of the sentence of imprisonment I have imposed will entail period of imprisonment of not less than 27 years and, if a parole order is made, a period of service in the community in order to complete service of the sentence. 6. Pursuant to s 16F of the Crimes Act 1914 (Cth) I further explain to the offender that if a parole order is made, it will be subject to conditions, it may be amended or revoked and that if the offender fails, without reasonable excuse, to fulfil those conditions, he may be returned to custody. 7. Pursuant to s 105A.23 of the Criminal Code 1995 (Cth) I warn the offender that an application may be made under Division 105A of the Code for a continuing detention order requiring him to be detained at the end of his sentence.

Endnotes

Section 7.3(1)(b) of the Code.
Exh A on sentence.
Exh 1 on sentence.
[2017] NSWSC 1365.
Commencing at [23].
R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691 at [92]; ('Lodhi sentence'); Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 ('Lodhi appeal'); R v Khazaal [2009] NSWSC 1015 at [47].
Lodhi sentence at [89]; Lodhi appeal at [274]; Khazaal at [41]; DPP v Besim [2017] VSCA 158 at [112] - [113].
R v Kahar; R v Ziamani [2016] 1 WLR 3156; [2016] EWCA Crim 568 at [19].
Lodhi sentence at [82]-[83]; [88]; R v Elomar [2010] NSWSC 10; (2010) 264 ALR 75 at [93]; Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 at [591].
Lodhi appeal at [87]-[88]; DPP (Cth) v Fattal [2013] VSCA 276 at [169]; Lodhi sentence at [91] - [92]; R v Barot [2007] EWCA Crim 1119; [2007] Crim LR 741 at [45].
Kahar at [19]; Elomar at [62]; Benbrika at [564].
Lodhi sentence at [91]-[92].
At [45].
T94.7 - 94.31; Exh A, p. 471.
[2013] NSWCCA 90; (2013) 228 A Crim R 503.
s 16A(2)(d).
s 16A(2)(e).
s 16A(2)(ea).
Exh H.
Commencing at para. 8.
Commencing at para. 20.
Commencing at para. 23.
T117.4-T117.7.
T117.16-T117.18.
T117.44.
T118.10-T118.31.
T118.37-T118.39.
T119.26.
T120.43-T120.44.
T120.46-120.47.
T121.6.
T121.47.
S 474.27 of the Code.
At [102].
At [103].
At [104]-[105].
At [14] above.
Ss 16A(2)(d), (e) and (ea).
Section 16A(2)(a).
Exh V.
Exh AF, Tab 2 at p.1.
Exh AF, Tab 2 at p.29.
T970.9-T970.24.
T970.22-T970.28.
T970.14-T970.17.
T970.19-T970.20.
Commencing at T457.23.
T457.42-T457.50.
T15.29.
At [52].
T83.27-T84.15.
T114.20.
T87.35-T87.40.
T28.14 - T28.31.
T88.14-T88.18.
T89.6-T89.19.
Exh L.
Exh 1; Exh A p. 1-4; p. 189-192; Exh J.
Commencing at T23.15.
Commencing T23.20.
R v De Simoni (1981) 147 CLR 383; [1981] HCA 31.
Khalid at 25.
T90.3-90.14.
T92.34-T92.38.
T92.44.
Commencing at T93.44.
Exh D, Channels 3 & 4.
T95.3.
Exh D, Channel 5.
Exh D.
T119.13.
Exh A p.431; Q and A 168.
T118.39-T118.40.
Exh. H.
T119.26
Exh. A p.429; Q and A 142.
Exh. AF, Tab 2 at p. 11.
Exh. A p. 429; Q and A 143.
At [18] above.
Exh K.
Exh F.
T136.29.
T142.44-T142.45.
Exh Q; Exh A commencing at p 417.
Exh A p.421; Q and A 34.
Exh A p.421; Q and A 38.
Exh A p.422; Q and A 45.
Exh A p.422; Q and A 53.
Exh A p.423 commencing at Q and A 63.
Exh A p.442; Q and A 47 and following.
Exh AF, Tab 2 at p.11.
Exh C and AE.
Exh A p.425 commencing at Q and A 98.
Exh A p.427 commencing at Q and A 113.
Evidence of Dr Shanahan at T368.10-T368.13.
T309.6-T309.33.
Exh A p. 432; Q and A 186.
Exh A p. 433; Q and A 190.
Exh A p. 433; Q and A 191-192.
Exh A p. 439; Q and A 286.
Exh A p. 440; Q and A 289.
Commencing at Q and A 202; Exh A p. 434.
Exh A commencing at p. 7; Exh M.
Exh A p. 544; Entry 106.
The term "kuffar" means "non-believer."
At [52] above.
Commencing at T462.4.
Exh A p. 491; Entry 39.
T359.15-359.30.
Commencing at T 364.36.
T363.30-T363.37.
Exh A p. 539; Entry 100.
Exh A p. 541; Entry 103.
Exh A commencing at p. 195.
Exh A commencing at p. 705.
T15.45-T15.46.
T15.49.
T16.14.
T16.23-T16.26.
At [26].
T36.45-T36.46.
See [52] above.
See [62[ above.
See [7] above.
Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 at [45] per Gummow and Crennan JJ.
Lodhi sentence at [53] per Whealy J.
Section 16A(2)(f).
Section 16A(2)(n).
At [6].
At [2].
At [5].
At [6].
At [8].
Commencing at [17].
At [22].
At [29].
At [25].
At [30].
At [35].
Commencing at T10.30.
T10.41-T10.43.
Commencing at T10.44.
T19.46.
T20.4-T20.21.
T11.14-T11.19.
At [82] above.
Commencing at T12.26.
T14.29-T14.34.
T14.36-T14.41.
T14.47-T14.50.
T21.12-T21.13.
Commencing at T21.43.
T21.31-T21.37.
T30.41-T30.47.
Commencing at T31.23.
At [9].
Affidavit of Ms Scott-Smith at [9].
At T20.48; T39.28-T39.37; T40.11-T40.13.
Khalid at [23].
Section 16A(2)(j)
At [46]-[61] above.
Section 16A(2)(ja)
Section 16A(2)(m)
Exh 6, paras.1 and 2.
Exh 6, paras.1-3.
Exh 6, para.4.
Exh 6, para.6.
Exh A, p.125.
See for example KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22] and following per McClellan CJ at CL; BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [4] and following per Hodgson JA; HJ v R [2014] NSWCCA 21 at [56] per Garling J.
R v Alou (No.4) [2018] NSWSC 221; (2018 330 FLR 402 at [170], citing DPP (Cth) v MHK [2017] VSCA 157; (2017) 52 VR 272 at [66], Khalid at [109]-[113]; [270].
At [8] above.
Exh AF, Tab 1 at p. 2.
Affidavit of Dr Spencer at paras.8-9.
At [9]-[11].
[2010] NSWCCA 194; (2010) 79 NSWLR 1.
At [177], citations omitted.
S 16A(2)(k). 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: 05 June 2019

Mental Health (Forensic Provisions) Act 1990(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (26)

Cited By (5)