R v Khazaal

CATCHWORDS : CRIMINAL LAW - Sentence - Make a document connected with assistance in a terrorist act - Objective gravity of offence not far below worst category - No mitigating factors

LEGISLATION CITED : Criminal Code (Clth) Crimes Act (Clth)

Lodhi v R [2006] NSWCCA 121 R v Javed [2008] 2 Cr App R (S) 12 R v Postiglione (1991) 24 NSWLR 585 CASES CITED : R v Lodhi (2006) 199 FLR 364 R v Demirian (1988) 33 A Crim R 441 R v Barot [2007] EWCA Crim 1119 R v Benbrika & Ors [2009] VSC 21

PARTIES : Regina - Crown Belal Saadalah Khazaal - Offender

COUNSEL : P Neil SC, Mr Andrews , Ms Callan - Crown (C'Wealth) G Thomas, P Lange - Offender

SOLICITORS : Commonwealth Director of Public Prosecutions - Crown Lawyers Corp - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SENTENCE 1 HER HONOUR : On 10 September 2008 the prisoner was found guilty by a jury of the offence of making a document connected with assistance in a terrorist act, knowing of that connection, pursuant to s 101.5(1) of the Criminal Code (Clth). The offence was committed between 20 and 23 September 2003. It carries a maximum penalty of 15 years imprisonment.

The Offence 2 Much of the evidence at trial was not in dispute. It was never disputed that the prisoner made a document, in the sense that he compiled a book in Arabic, titled "Provisions on the Rules of Jihad", which was the result of a number of downloads by him of various articles from internet sites over the relevant 3 day period. The prisoner thus selected the contents of the book and placed the chapters in a designated order. Nor was it disputed that the prisoner undertook a number of editorial changes and contributed some commentary of his own to the book, including a dedication and part of an introduction. The prisoner also added a small number of footnotes and re-numbered many others. 3 It was not disputed that the book included material that referred to targeting foreign governments, including the presidents, foreign ministers, ministers of defence and "high ranking generals" of the governments of America, Britain, France, Germany, Australia, Canada, Russia, India and other NATO countries. Parts of the book promoted methods of assassination and the commission of acts of violence in the name of restoring the nation of Islam. Some of the sub headings in the Chapter "Reasons for Assassination" are indicative of the tenor of the material in the document, namely, "Characteristics of the assassination team," "Optimal conditions for assassination", "Features and stages of the assassination process", "Aspects of the assassination mission", "Methods and means of assassination", "Targets that should be assassinated" and "Benefits of assassination". The chapter "Reasons for Assassination" and another titled "The Last Word" were introduced by the prisoner's composition, in favourable terms, of the first paragraph in each of those chapters. 4 The prisoner, using a pseudonym, submitted the document for publication on an internet site, which, according to the expert evidence at trial, was endorsed by al Qaeda and contained a number of publications by leaders of known terrorist organisations. When submitting the document for publication, the prisoner expressed the hope that it would be published on that website, or anywhere else the administrators of the website saw fit. For ease of publication, he re-formatted the book from A5 to A4 size. The prisoner referred to the document as an "urging for jihad", which he had prepared in haste following a request from "the brothers". The Crown case was that the religious or ideological justifications for jihad, meaning violent struggle, were advanced in the first half of the book, and the second half provided the practical guide to achieving martyrdom and destroying those who would oppose or oppress Islam. 5 It is clear that the jury, by their verdict, accepted this characterisation of the Crown case. More particularly, given the particularisation of the charge in the indictment, the jury were satisfied beyond reasonable doubt that :- (i) the prisoner was aware that the acts, described in the document, were directed at various people including diplomats, military personnel and holders of public office, and (ii) the prisoner was aware of the purpose of those acts, namely, the advancement of the Muslim religion in the world, including the dominance of that religion in Arabia and/or the establishment of a Muslim nation in that region and/or the expulsion of Jews, Christians and other non Muslims from that region, and (iii) the prisoner was aware that the acts were intended to coerce or influence by intimidation one or more of the government of this country, the government of a foreign country, or to intimidate the public or a section of the public, and (iv) the prisoner was aware that the acts, if carried out, would cause serious physical harm or death to persons, or endanger a person's life, or cause serious damage to property or create a serious risk to the health or safety of the public, and (v) the prisoner was either aware that the acts were not advocacy, protest, dissent or industrial action, or, he was aware that the acts were intended to cause the types of harm referred to in (iv). Assessment of the Objective Gravity of the Offence 6 The assessment of the objective gravity of this offence must begin with an appreciation of the legislative policy underlying the introduction of the offence in the criminal calendar of the Commonwealth. Not only is the legislature's view of the seriousness of the offence a relevant consideration, but an understanding of the gravamen of the offence is vital, particularly in the light of the prisoner's submissions on sentence that suggested the offence was low on the scale of criminality. 7 The offence is found within Part 5.3 of the Criminal Code, which was enacted in March 2002 in response to the changed security environment since the events of September 11. In the course of the second reading speech, the Attorney General stated :- September 11 is a stark example of the horror and devastation that can be caused by acts of terrorism. Terrorism has the potential to destroy lives, devastate communities and threaten the national and global economy. For these reasons this government has affirmed its commitment to combating terrorism in all its forms. We join with the international community in condemning the 11 September attacks and other terrorist activities. Other like-minded countries have passed, or are in the process of passing, antiterrorism legislation designed to assist in this fight. Consequently, counterterrorism legislation and proposals throughout the world have been considered in the preparation of this bill. 8 There are twelve major multilateral conventions and protocols relating to the responsibilities of member states of the United Nations for combating terrorism, most of which impose an obligation to establish criminal jurisdiction over offenders. The provisions of the Code in relation to terrorism offences give effect to Australia's international obligations, as a signatory to these various multilateral instruments. They reflect a worldview that terrorism is a matter of international, not merely domestic concern. 9 Against this background, the offence created by s 101.5(1) is designed to target conduct which renders more likely the carrying out of a terrorist act. The attachment of criminal responsibility to such conduct, whether or not an act of terrorism ultimately takes place, was emphasised by Spigelman CJ in Lodhi v R [2006] NSWCCA 121 at [66] as a significant feature of the legislative regime under Part 5.3 :- It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgement has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, for example, well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy. 10 In Lodhi v R [2007] NSWCCA 360 at [79], the Chief Justice said :- The provisions creating the offence are directed to preparatory acts and the seriousness with which Parliament regards such acts is manifest in the maximum penalty. By the extended range of conduct which is subject to criminal sanction, going well beyond conduct hitherto generally regarded as criminal, and by the maximum penalties provided, the Parliament has indicated that, in contemporary circumstances, the threat of terrorist activity, requires condign punishment. 11 The prisoner's submission that the above dicta from Lodhi is of little assistance in the circumstances of this case, because it was never suggested that the prisoner was to engage in terrorist activity himself, entirely misses the point. The dissemination of extremist literature, connected or unconnected with a terrorist plot, is caught by the legislative scheme, no doubt because literature of the type sourced by the prisoner is capable of, and has been shown to, foment terrorist activity. 12 The submissions on behalf of the prisoner went further, however. The failure of the jury to agree upon a verdict in respect of a charge brought under s 101.1/s 11.1/s 11.4 of the Code, namely attempting, by the publication of the document, to incite others to commit a terrorist offence, founded a submission that the Court must proceed to sentence on the basis that the prisoner knew that his book was connected with assistance in a terrorist act, but that he did not thereby intend to incite the commission of a terrorist act. It is then said that, essentially for this reason, the offence of which the prisoner was found guilty is "at the lowest end of the spectrum." 13 There are two flaws in this argument. The fact that a jury fails to agree with respect to a criminal charge, containing an element of specific intention, does not establish positively that an offender lacked that specific intention. It establishes that the jury was unable to reach a unanimous verdict on that charge. Of course, the Court accepts that the prisoner does not stand to be sentenced for an offence of which he has not been found guilty, and there is no warrant for a finding beyond reasonable doubt that the prisoner intended to incite the commission of a terrorist act. 14 The further flaw is that the absence of such a specific intent does not correspondingly reduce the objective gravity of the offence the prisoner has committed. That specific intent is no part of an offence under s 101.5(1). If a finding beyond reasonable doubt to that effect were made, it would increase the criminality inherent in the offence, but the absence of an aggravating factor does not, as a matter of logic, mitigate an offence. 15 The inability of the Crown to demonstrate any nexus between the making and publication of the document by the prisoner and the commission of any terrorist act does not substantially affect the assessment of the objective gravity of the offence. In circumstances where material of this nature is published on an internet site, chosen by the prisoner because of its connection with adherents of violent struggle against the enemies of Islam, allowing for almost instantaneous and international distribution, the Crown may never be in a position to bring forward evidence of the identity or numbers of people who read the document, or whether they are influenced by its contents to commit terrorist acts. That is precisely why the gravamen of the offence lies in the construction of a document likely to facilitate a terrorist act, whether or not such an act occurs. 16 In answer to a submission made on appeal by the legal representatives of Lodhi, not dissimilar to the submissions now made on the prisoner's behalf, Price J (Spigelman CJ and Barr J agreeing) said :- [229] The present offences, however, are not crimes of attempt. Sections 101.4, 101.5 and 101.6 of the Criminal Code Act 1995 (the Criminal Code ) extend criminal liability to acts of preparation. The proximity between the criminal act and the commission of the substantive offence is necessarily more remote. These are anticipatory offences which enable intervention by law enforcement agencies to prevent a terrorist act at a much earlier time than would be the case if they were required to wait for the commission of the planned offence or for an unsuccessful attempt to commit it. The proximity between the preparatory act and the completion of the offence, although relevant, does not determine the objective seriousness of such an offence. It does not follow that as long as the preparatory acts relied upon to constitute the offences are in their infancy criminal culpability must necessarily be low. The main focus of the assessment of objective seriousness must be the offender's conduct and the offender's intention at the time the crime was committed.

[232] An inevitable consequence of early intervention by the law into acts of preparation is that definitive conclusions might not be able to be reached about the viability, sophistication or indeed the offender's role in the ultimate offence. But that does not mean that the act which constitutes the offence charged will not be regarded as serious.

17 A further submission on the prisoner's behalf deserves attention. The fact that the document was in effect a "cut and paste job" is said to demonstrate that the prisoner did not devote the skill and industry to the construction of the document that would otherwise justify a substantial sentence. The reference to "skill and industry" derives from R v Javed [2008] 2 Cr App R (S) 12 at [38] per Lord Phillips CJ. That case was concerned with sentence appeals in respect of offences of inciting racial hatred and solicit to murder arising out of "a one-off demonstration, mounted at short notice, without sophisticated planning." (at [45]) Essentially, the offences consisted of shouting slogans in the course of the public demonstration. It is unsurprising that Lord Phillips would approach the appeal in that manner. 18 However, where the prisoner has applied himself to the task of searching and downloading from internet sites a quantity of material, which has then been edited, arranged, indexed, footnoted and formatted into a comprehensive document, albeit with few alterations and additions, I do not accept that he has not thereby demonstrated considerable application to the task. I am not persuaded that reliance by an offender on research material in order to make a document necessarily affects the assessment of the objective gravity of this type of offence. The offence is drafted in terms of making the document, not in terms of authorship. The offence recognizes that much of the information that is capable of facilitating the commission of terrorist acts has already been committed to writing by those wishing to advocate for, and recruit to, a particular cause. 19 Accepting these matters, I regard the following additional factors of relevance in the determination of the objective gravity of the offence. First, the volume, detail and accuracy of the information in the document that relates to the commission of terrorist acts are substantial. The chapter titled "Reasons for Assassination" consists of approximately 30 pages of close typed text. Apart from a number of general instructions in relation to the carrying out of assassinations, there are eight specific methods that are the subject of detailed instructions. They are the remote detonation of a device, letters containing biological hazards and letter bombs, booby trapping a car with an explosive device, detonating a car bomb from a distance, using snipers, suffocation, the use of implements such as an axe or hammer, and booby trapping a room, such as in an hotel. Despite the efforts by the prisoner's legal representatives at trial to suggest in cross examination of the Crown's expert witness that these instructions lacked the specificity that would allow anyone, without more, to carry them out, that expert witness described this part of the document as a terrorist training manual. I agree with that description. 20 Next, the nature and extent of the harm capable of being caused by the acts described within the document are considerable. It is not necessary to repeat the details of the instructions contained within the document in order to appreciate that it advocated widespread and indiscriminate loss of life, serious injury and serious property damage within the countries identified as enemies of Islam. That factor brings with it a further factor, namely, the identity and scope of the proposed targets of the terrorist acts. Finally, the nature and extent of the publication of the document, to which I have already referred, was designed to maximise the speed and the reach of the dissemination of the document. 21 For all of these reasons, this offence is not far removed from the worst category of an offence under s 101.5(1). The objective gravity of the offence calls for a sentence towards the top of the range indicated by the maximum penalty. That is but one aspect of the sentencing exercise. I turn to the prisoner's subjective circumstances.

The Prisoner's Subjective Case 22 The prisoner is presently 39 years of age. He is the third of four children born in rural Lebanon. He came to Australia at the age of six months with his family, however at the age of 18 months he returned to Lebanon with his grandmother and an aunt. His parents joined him in Lebanon when the prisoner was eight years of age. Due to the war and other political tensions in Lebanon, the family returned to Australia permanently in 1986. The prisoner's family now reside in the Bankstown area. His father died in 1996 and his mother died in 2001. The prisoner took out Australian citizenship in approximately 1989. The prisoner married in Australia in 1993 and there are two children of the marriage, now aged 11 and 10 years. The prisoner's wife remains supportive. 23 The prisoner's education was interrupted, resulting in completion up to a primary school level. Since arriving in Australia, the prisoner studied Islam intensively. The prisoner worked initially for approximately 12 months in a mixed business catering to the Lebanese community, followed by 10 months in a factory, followed by employment over a 10 years period with a major Australian airline as a cleaner and driver. A work injury during 1999 resulted in the cessation of all employment. The prisoner has received government benefits since 1999. His family occupies a rental property and is presently in financial difficulties. 24 Since 1994, the prisoner has been employed as an unpaid journalist for a magazine titled "Call to Islam". The prisoner has written articles for that magazine and for other publications since 1990. It was not in dispute at the trial that he carried a card that identified him as a journalist. The magazine "Call to Islam" featured in the evidence in the trial and was described as an influential publication in Islamic circles. 25 Much of the evidence tendered on the prisoner's behalf referred to his state of health. In addition to the work injury, the prisoner was in a motor vehicle accident in April 2003, when he was struck by a car, whilst standing adjacent to another car speaking to a passenger. The prisoner was taken to Bankstown hospital with injuries to his left leg and back. These injuries were said to aggravate his earlier injury. There were no fractures recorded to the limbs. 26 Between September 2003 (the date of the offence) and the prisoner's arrest on 2 June 2004, the prisoner was under surveillance, to his knowledge, by the authorities, who had become aware of his activities. This is a relevant observation, because the first occasion on which the prisoner consulted a psychologist complaining of anxiety and depression was 24 December 2003. That psychologist last saw the prisoner on 21 January 2004. 27 Following the prisoner's release on bail approximately 1 week after his arrest, the prisoner consulted a forensic psychologist, Tim Watson-Munro, in anticipation of a Crown appeal against the grant of bail. In a report of 15 June 2004, Mr Watson-Munro expressed the view that the prisoner was then suffering ongoing depression, anxiety, poor sleep, low self-esteem and a subjective outlook. 28 The prisoner first consulted a psychiatrist on 3 October 2007. In the body of a report of 15 October 2007, Dr Ali says that "since he has been charged he has suffered from anxiety and depressive symptoms including depressed moods, sleep difficulty, tiredness, irritability and poor concentration. There is no evidence of any active suicidal thoughts. The onset of the problem has been since this charge and the symptoms have been fluctuating. On further examination of his mental state there was no evidence of psychosis, brain damage or any other problem. He appeared to be functioning at an average level of intelligence and had reasonable insight into his problems." The diagnosis was "an adjustment disorder with depression as a result of the court case and related charges." The only medication prescribed for the prisoner was a sleeping tablet "basically as an anti-anxiety measure." 29 Mr Watson-Munro again saw the prisoner after conviction on 7 November 2008. Mr Watson-Munro commented upon a diagnosis made by Dr Olav Nielssen, who interviewed the prisoner on 16 October 2008, and noted that "consistent with my view, Dr Nielssen comments upon the significant depression that this man has and continues to suffer which has been compounded by the conviction and the circumstances of his incarceration." The full context of Dr Nielssen's diagnosis on 17 October 2008 is as follows :- The diagnosis of adjustment disorder with depressed mood (clinically significant depression arising from a life event) is made on the basis of [the prisoner's] account of symptoms of depression of sufficient severity to warrant treatment by a psychiatrist with antidepressant medication, which developed after he was charged with these offences in 2004 . He seemed depressed at interview and reported insomnia, anxiety, significant weight loss and low mood since his reception to prison. 30 However, in Dr Nielssen's report of 28 March 2009, this diagnosis was varied to the following extent :- .. adjustment disorder with depressed mood (clinically significant depression arising from a life event) … on the basis of [the prisoner's] account of symptoms of depression of sufficient severity to warrant treatment by a psychiatrist with antidepressant medication. The syndrome developed in response to his circumstances in 2003, beginning with the effect of chronic pain and a head injury after being hit by a car. From the history... and the further information provided by Mr Watson-Munro, it seems apparent that [the prisoner] was in a depressed state around the time of the offences. Moreover, his intellectual function and judgement may also have been affected by the recent head injury and his treatment with a combination of pain relieving and anxiety relieving medication. 31 The further information provided by Mr Watson-Munro is to be found in a supplementary report of 20 February 2009, wherein Mr Watson-Munro notes the attendance by the prisoner on a psychologist "several months subsequent to the offence occurring". The high point of Mr Watson-Munro's opinion in that report is that he thought it "highly likely that [the prisoner] was symptomatic at the time of the offence occurring." This conclusion was reached against the "backdrop of long-standing medical and psychological problems." It is not clear what long-standing psychological problems Mr Watson-Munro is referring to, given that there is no psychological report pre-dating late January 2004. 32 In my view, the preponderance of the evidence favours the conclusion that the prisoner's psychological condition, such as it is, appears to be almost wholly related to the circumstances of his arrest, charge and conviction. It is being appropriately managed by Justice Health. There is no cogent evidentiary basis for concluding that the prisoner's depression in any way contributed to the commission of the offence. 33 As for the balance of the prisoner's physical health, a report dated 12 December 2008 from Justice Health records the following conditions, namely, obstructive sleep apnoea, allergic rhinitis, diabetes Type II, cardiovascular risk factors such as hypertension, haemorrhoids, reflux, a hearing impairment, asthma, neck and back pain and knee pain. A number of these conditions, in particular the prisoner's sleep apnoea, diabetes and elevated blood pressure, have been alleviated by a substantial loss of weight. All of these conditions are being treated appropriately by Justice Health. 34 There is nothing in this history that suggests that the prisoner's incarceration will be particularly onerous for reasons of ill health, such that the imposition of a lesser sentence than is otherwise appropriate is warranted. I note for completeness that the spectre of a serious brain disease, neurofibromatosis, raised by the prisoner's treating general practitioner, has been discounted by a series of tests which were administered to the prisoner between his trial and the most recent submissions on sentence. It is largely because of the necessity to address this issue that sentence has been so long delayed.

The Issue of Character 35 The prisoner tendered a number of testimonials and in addition called evidence from his wife, a male friend, and Dr Kahil, who is the prisoner's treating general practitioner. None of these witnesses had read the document the subject of the charge and there was no evidence from the terms of the documentary evidence that any of the authors of the testimonials were aware of the contents of the book. 36 In the course of submissions on sentence, the prisoner's legal representative relied heavily upon the fact that the prisoner had enjoyed a good reputation in the course of his employment with an international airline, where he was subject to a security clearance. That circumstance may be evidence of the prisoner's good character up to and including the termination of his employment, but evidence presented by the Crown militates against the finding that the prisoner has remained a person of good character. 37 Evidence was placed before the Court that in or about December 2003, the prisoner was convicted by the Permanent Military Court in Beirut, Lebanon of forming a terrorist association for the purpose of committing crimes against people and property, becoming concerned in the crime of possessing explosive charges for the purpose of carrying out terrorist operations, and becoming concerned in a crime aimed at carrying out terrorist activities through explosive charges. The prisoner was convicted of these offences and sentenced to imprisonment with hard labour for 10 years to be served concurrently. His civil rights were revoked. I interpolate that the prisoner holds dual Australian and Lebanese citizenship. 38 Furthermore, in or about March 2005, the prisoner was convicted by the same court in Beirut on two further offences against the penal code, resulting in a sentence of imprisonment with hard labour for 15 years in respect of each offence, to be served concurrently. The prisoner's civil rights were revoked. These offences related to the formation of a criminal group with the intention of committing crimes against people and property and undermining the authority of the Lebanese State, and attempting to commit crimes that undermined the security of the Lebanese State. All of these proceedings were conducted in the absence of the prisoner. 39 The prisoner submits that the Lebanese proceedings should have no bearing on this issue. The absence of the prisoner from the trials, the absence of any representation by counsel and an alleged absence of notice of the proceedings are said to justify the conclusion that the proceedings were not conducted in accordance with the commonly accepted principles of natural justice. It is also said that the transcript demonstrates that several of the accused who were questioned about their involvement in the alleged offences were tortured. However, the Court was not taken to those references. For these reasons, the prisoner submits that the judgement of the Lebanese court lacks any vestige of compliance with "essential principles of justice and morality". 40 I note that the prisoner did not give evidence disputing his guilt of these offences, nor was there evidence that he had no notice of the charges. The evidence went no further than an extract from the relevant code which prescribed the method of service in the absence of a residential address. To the extent that the prisoner seeks to call into question the fairness of the trial process in Lebanon, the same complaint in R v Postiglione (1991) 24 NSWLR 585 was met with the following :- The essence of complaint is that, in distinction from the common law trial method, the appellant was convicted without the opportunity of confronting and cross examining persons who incriminated him. Such an opportunity is fundamental to our system of trial but it does not follow that another system which involves proof of guilt by different procedures in investigation, evidence gathering and analysis must include the same step. The argument misapprehends that a course which is essential to the achievement of justice in one particular system must necessarily be an ingredient in another. 41 I accept the Crown's submission that the prisoner cannot be regarded as a person of prior good character. Even if I were wrong in this regard, it is of little moment, given that good character is of minimal significance to the sentencing exercise having regard to the nature of the offence : R v Lodhi (2006) 199 FLR 364.

Remorse, Contrition and Prospects of Rehabilitation 42 The prisoner has not demonstrated any remorse or contrition. He continues to minimise the severity of the offence by claiming to a Probation and Parole officer that he had "sourced information for an article from various sources and on the Internet over a period of one day and his belief was that the material was strictly religious journalism. He claimed that the information was published separately [because] there was no room left in the magazine. The [prisoner] admitted the material was placed on the website, however he stated that when he realised the material was regarded by the Australian government as assisting terrorism he removed it from the web site immediately." 43 When speaking to Dr Nielssen as recently as 16 October 2008 and 17 March 2009, the prisoner described himself as a writer who took the material from other publications without checking it too closely. 44 These justifications mirror the prisoner's defence at trial, which was unsurprisingly rejected by the jury. It beggars belief that a person of average intelligence who had devoted themselves to the study of Islam over a period of some years would fail to register the nature of the material which ultimately found its way into the document that the prisoner compiled. It is even less worthy of credence when account is taken of the fact that the prisoner described himself as an Islamic scholar and a journalist, who actively pursued those interests. 45 My assessment of the prisoner's prospects of rehabilitation are that they remain exceedingly poor. There has been no acknowledgement, let alone renunciation of the extremist nature of the prisoner's views. For these reasons, the sentence must contain a strong element of personal deterrence, in addition to punishment and general deterrence which are generally considered paramount in sentencing for terrorist related offences.

Sentencing Principles Applicable to Terrorism Offences 46 These remarks on sentence have already addressed many of the factors set out in s 16A of the Crimes Act (Clth). It cannot be doubted that a sentence of imprisonment is the only appropriate sentence in all the circumstances. 47 Terrorism offences have been described as crimes of notoriety and heinousness in the name of a political cause, requiring the imposition of a significant sentence in order to mark the seriousness with which the offence is viewed. General and specific deterrence, and denunciation, must be manifestly reflected in the sentence ultimately imposed, given that the objects of terrorism are to use violence, or the threat thereof, as an instrument of coercion and/or intimidation of governments, in the pursuit of a political, religious or ideological cause. The offence committed by the prisoner falls within this rubric. The potential for great harm to members of the public, the economy and the social fabric, reinforces the obligation of the courts to denounce terrorism in all its forms by the imposition of sentences that have a strong deterrent effect : R v Demirian (1988) 33 A Crim R 441 ; R v Lodhi (2006) 199 FLR 364 ; R v Barot [2007] EWCA Crim 1119 ; R v Benbrika & Ors [2009] VSC 21. 48 These principles cannot give way because the nature of the offence leads to the incarceration of the prisoner under restricted conditions. The prisoner's classification as AA allows him to associate with other prisoners of a similar classification, albeit in a separate part of the prison system. The evidence called by the Crown established that the prisoner's classification will be reviewed approximately 3 months after the imposition of sentence and thereafter every six months. It is by no means unlikely that the prisoner will progress to a lower security classification in time. 49 Nor do I accept that there has been any relevant delay between the commission of the offence, the charging of the prisoner and the final disposition of the proceedings, such that some amelioration of the penalty is appropriate. The prisoner cannot have been under any misapprehension as to the likely outcome of the prosecution, nor has the lapse of time allowed the prisoner to demonstrate any progress towards rehabilitation. Between the prisoner's arrest and charge and the commencement of the trial on 11 August 2008, there were a considerable number of pre-trial issues that were agitated by both the prisoner and the Crown, including an application for adjournment of the committal hearing by the prisoner, an application to vacate a trial date in April 2006 by the prisoner, a lengthy voir dire conducted before Whealy J in November 2007, an application by the prisoner to vacate a trial date in February 2008, and an appeal to the Court of Criminal Appeal in respect of a refusal to allow access to subpoenaed documents. 50 Throughout this period of time, the prisoner was subject to bail conditions which were deemed necessary by the Court, having regard to the nature of the charges the prisoner was facing. Whilst those bail conditions restricted the prisoner's movements to the extent that he was required to reside at a notified address, report daily to Campsie police station and travel only in the metropolitan area of Sydney, they do not qualify as quasi-custodial.

Sentence 51 Belal Saadalah Khazaal, you are convicted of the offence of making a document connected with assistance in a terrorist act. I sentence you to 12 years imprisonment, to date from 31 August 2008. I fix a non parole period of 9 years. You may be released to parole after 31 August 2017. **********

28/09/2009 - Formatting of coversheet - Paragraph(s) No paragraphs altered - formatting alteration to coversheet 29/09/2009 - Amendment to coversheet only - Paragraph(s) Nil

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