R v Musleh

Documents tendered

1. The Crown tendered a Statement of Facts at the sentence hearing on 7 December 2018 which were agreed save for the following. Mr Scragg, who appeared on behalf of the offender, confirmed that the offender did not admit that he entered Syria. He accepted all the other facts for the purposes of the proceedings although he disputed the relevance of certain facts which related to what the offender's companions did in Syria after the offender had begun his return journey home to Australia. He also disputed the relevance of a book found in the offender's possession when a search warrant was executed.
2. The Crown also tendered the offender's criminal history and, in accordance with its obligations, a sentencing assessment report dated 20 November 2018 by Claire Peters, a Community Corrections Officer. The offender tendered a "Letter of Apology" dated 5 December 2018 (the Letter of Apology); character references from his wife, Hyam Musleh, his mother, Siham Tabbouch, and a friend, Andriana Chidiac; and a statutory declaration from Hassan Danndoui dated 5 December 2018.
3. Neither the offender, nor the authors of the character references, gave evidence. Mr Danndoui was not required for cross-examination. The Crown did not submit that I ought not give weight to the character references, although it contended that allowance ought be made for the fact that their authors did not give evidence. However, the Crown contended that little weight ought be given to the Letter of Apology. I discount the weight of the Letter of Apology as the offender did not give sworn evidence. I accept some of the statements in the Letter of Apology which are admissions, corroborated by the Statement of Facts and other material, or are inherently credible.

The facts

1. The following narrative of facts is principally taken from the Statement of Facts, except where indicated.

The civil war in Syria

1. The following summary of the conflict in Syria up to July 2013 is not disputed. The civil war began in Syria in about April 2011. The early armed opposition to President Assad came from groups of army deserters and locals with access to small arms. Ahrar Al-Sham (AAS), a largely Syrian resistance group, wanted to replace Assad with Islamic rule. Jabhat Al-Nusra (JAN), which was formed in Iraq in mid-to-late 2011, established a branch in Syria to overthrow Assad. There were many other anti-Assad groups. By about April 2013 the various anti-government forces, including AAS, JAN and Islamic State were fighting against Government forces and also between themselves over territory in Syria. In 2013 many foreign fighters joined these groups as it was relatively easy for them to get access to Syria. There were several crossings along the 900-kilometre-long border with Turkey where anti-government forces had strongholds, including at Bab Al-Hawa, a border crossing in the province of Hatay in southern Turkey.

Summary of the narrative

1. The offender is an Australian citizen of Palestinian descent. In July 2013, he travelled with two other young men, Biber and Temel, from Australia to Turkey. Biber and Temel were both Australian citizens of Turkish descent. When they arrived in Turkey they joined Casey, who had travelled separately from Australia. Casey was an Australian citizen of US descent. The group, which was supported by Alqudsi, an Australian citizen of Palestinian descent, planned to join Mohamed Ali Baryalei (Baryalei), another Australian, who was fighting in Syria on behalf of AAS and, later, JAN.
2. It is common ground that all telephone calls referred to were lawfully intercepted. At all material times, Alqudsi was in Sydney. The times given in the narrative are all Australian Eastern Standard Time.

The background to the journey

1. On 10 April 2013 Baryalei flew from Sydney to Istanbul via Toyko. He has not yet returned (and may be dead). On 13 June 2013, Alqudsi received a text message from an associate, Wasim Fayad, which listed names and phone numbers of 13 men whom Fayad described as "the brothers that I have[,] God willing". The list included the offender, Biber and Temel. Temel phoned Alqudsi on 17 June 2013 telling him that he had "good news . . . in regards to tourism". I infer that the reference to "tourism" was a reference to travel to Syria.
2. On 19 June 2013 Biber applied for an Australian passport and nominated Temel as his guarantor.
3. On 22 June 2013 Alqudsi phoned Baryalei who told him that he had "got back yesterday". In the course of the conversation, Baryalei described a battle in which several men had died. He referred to a sniper, tanks, bullets and roadside traps.
4. On 25 June 2013 Alqudsi rang Baryalei in Syria and told him that he had "four brothers" coming that week who would meet up in Istanbul and travel together to Hatay. The "four brothers" included Temel, Biber and Casey but not at that stage the offender. In the course of that conversation, Baryalei handed the phone to another man, Abdeen, who advised Alqudsi that when the men arrived in Bab Al-Hawa they should contact the Night Arrows Battalion through the AAS headquarters.
5. It was an agreed fact that, before he left Australia, the offender attended three shuras which took place at Minto Mosque and Alqudsi's residences at Helen's Park and Revesby. A "shura" is a consultation session. The purpose of these shuras was to discuss the travel arrangements for the journey to Syria. The first of the three meetings, at Minto Mosque, did not result in any discussion because of the lateness of the hour. Alqudsi suggested that they reconvene at his home later.
6. On 27 June 2013 Biber and Alqudsi spoke on the phone about the travel plans of the members of the group, including that Casey would be the first to leave on Saturday 29 June 2013. Shortly after these calls, Alqudsi rang Casey to tell him to "stick to the shura".
7. Later on 27 June 2013 Alqudsi rang the offender who told him that "the Turks [Temel and Biber] are registered for Monday and the American [Casey] is registered for Saturday". The offender told Alqudsi that he was planning to leave on Monday (1 July 2013) but the booking had not been confirmed. Alqudsi told the offender that he was having a shura the following evening at which he intended to introduce the offender to the others in the group. Alqudsi told the offender, "I'll put them under your command, Allah Willing, Okay?" to which the offender responded, "Allah willing, Allah willing." The offender told Alqudsi that he would go to the travel agent early the following day.
8. At about 11.13am on Friday 28 June 2013 the offender told Alqudsi on the phone that he needed the names of "the boys" and that they had to be ready to come to Liverpool that day to pay for their tickets or else they would lose the booking. The offender explained that there were "three vacancies for Monday" which were $400 cheaper than "our one". About half an hour later, Alqudsi phoned Temel to inform him that the offender was doing the booking for "three brothers", that the money for the tickets had to be delivered to the offender and that "he [the offender] is one of the boys . . . he's leaving with you". Shortly afterwards, Alqudsi rang the offender to find out exactly how much money he needed, to which the offender responded, "six, six". The offender stressed the urgency of the need for the full names and the money as the booking was only valid for 24 hours and the "bloke" (the travel agent) was not open the following day, which was a Saturday.
9. At the second shura, at Alqudsi's St Helen's Park residence, which I infer took place on the evening of 28 June 2013, there were several men present with Alqudsi, including the offender, Biber, Temel and Casey, each of whom confirmed their intention to go to Syria to fight. It was agreed that the offender would travel with Biber and Temel. The offender was appointed an emir, or commander, of the group.
10. Subsequently the group met at Alqudsi's Revesby residence for a third shura. There was further discussion about the travel plans and what the men would say if they were asked about their travel arrangements. Alqudsi reminded them that the offender was to be their emir.
11. At about 4.49pm on 29 June 2013, Alqudsi told Baryalei that he had "one" leaving that day (Casey) and four leaving on Monday (including the offender, Biber and Temel). Alqudsi informed Baryalei of the plan for the group to meet in Istanbul, fly to Hatay and go to Bab Al-Hawa where they would ask for the Night Arrows Battalion. Alqudsi told Baryalei that he had appointed the offender as the "travelling commander" until they reached Syria, at which point Baryalei would become their commander. Alqudsi and Baryalei spoke again about an hour later. In the course of their discussion, Baryalei told Alqudsi of his "main aim" to become a "martyr" "within a month or whatever". Alqudsi confirmed his appointment of the offender as the emir: "I'm sending you an Arab brother. He is the commander of the travelling, with the brothers, Abu Al-Hasan." Abu Al-Hasan was the offender's Kunya, or Arab nickname.
12. On 30 June 2013, Baryalei, who was in Syria, told Alqudsi that "the group" had split into two and that he did not know whether to join JAN or Islamic State.

The journey from Australia and the arrival in Turkey

1. On 29 June 2013 Casey left Australia for Turkey via Singapore. At about 4.49pm on 30 June 2013 Alqudsi learned that Casey had safely arrived in Turkey.
2. On 1 July 2013 Biber, Temel and the offender left Australia for Turkey via Singapore. At about 4.35pm on 2 July 2013 Alqudsi called the group in Turkey and spoke to each of the three men. Alqudsi asked the offender to send text messages to let him know of the group's movements (from Istanbul to Hatay and then to Bab Al-Hawa). Biber obtained advice from Alqudsi about changing money into different currencies. Alqudsi advised them to get Turkish, Syrian and US currency but more Syrian currency because "that's what you're going to be using most of the time inside".
3. On 3 July 2013 the offender called Alqudsi to report that they were about to board an aircraft to Hatay. Alqudsi informed him that Baryalei would be waiting for them at the airport. About three hours later the offender called Alqudsi to tell him that there was no one at the airport although Baryalei had told him that someone would be there to meet them. At almost 7pm on 3 July 2013, the offender told Alqudsi that they were expecting to be picked up and that he would let Alqudsi know when this had happened. Just before 8pm the offender phoned Alqudsi and told him that they were with "the brother" now, a man who identified himself as Abu Yeha. Alqudsi then spoke directly with Abu Yeha and later confirmed to the offender that Abu Yeha was "trustable".
4. A few minutes later, at about 8.09pm on 3 July 2013, Alqudsi phoned the offender and told him that Baryalei was waiting for them at Bab Al-Hawa. The offender reported to Alqudsi: "[T]he boys . . . there's not one look of fear in any of their faces . . . the boys are ready . . . they look beautiful and ready."
5. Alqudsi and the offender also discussed means of transport and changing money. Alqudsi told the offender that he was a "smart Mujahid" who should do whatever he thought best because "I trust you with the boys' lives . . . That's why Allah put you in that position."
6. At 8.57pm on 3 July 2013, the offender rang Alqudsi and told him that there was an Alawite on the bus who called the police but that when the police had searched the group, the police had let them go. Alawites are a sect of Shiite Muslims from which the Assad ruling family is descended. The offender told Alqudsi that they had lost their guide who was "rubbish" and asked him what they should do. Alqudsi instructed the offender that they should leave the area, go to a hotel room, and stay overnight and that he would advise him further. The offender confirmed that he would go to the airport and then to the Grand Ana hotel. Baryalei, who was working out how to get the men across the border to Syria, was informed of the group's movements.
7. At about 9.47pm on 3 July 2013 the offender rang Alqudsi to report on their location and what they planned to do. The offender told Alqudsi that he and Biber were going to change money. He hoped that they would not attract attention because he spoke Arabic and Biber spoke Turkish. Alqudsi again told the offender that there was a reason why Allah chose him (to be the emir) and reminded him of the importance of a shura, even if it lasted for no more than five seconds. Alqudsi instructed the offender that he should get the others to express their opinions and he should give his own opinion "as the commander" before finishing with prayers.
8. Shortly after midnight on 4 July 2013 Alqudsi sent a text to the group asking for the name of their hotel. A response was sent.
9. At about 12.33am on 4 July 2013 Biber rang Alqudsi. When Biber handed the phone to the offender, Alqudsi told the offender that he entrusted him with the task of sending a text to let him know "every step you take".
10. At about 4.51am on 4 July 2013 the offender rang Alqudsi to tell him that the group needed to leave Turkey as soon as possible because Biber's parents had alerted the police in Australia and the men feared that the Turkish authorities were looking for them. The offender told Alqudsi that the group was attracting attention in Turkey and that when they went into the street "everyone looks at us". The offender asked Alqudsi to get in touch with Baryalei to tell him and also to text the number of "the base" (in Syria) to Casey's phone so that they could try to ring direct to get someone to come and collect them. The offender told Alqudsi: "[W]e have all our money changed. We are ready to get up and leave, whenever. All our money is in US. We've accomplished that, okay, and . . . we had to do it very strategically."
11. At 4.59am on 4 July 2013 Alqudsi sent a text message to a Turkish number, which I infer was associated with the group to which the offender belonged, containing a Syrian number, which I infer was "the base".
12. Later on 4 July 2013 the offender reported to Alqudsi that they were "with the brothers now" on the border waiting to be picked up. Alqudsi asked him whether he was happy with the group he was in to which the offender replied that they were all happy and that it was "[o]ne of the best days of our lives". Alqudsi asked the offender whether "the brother" who would be picking them up would take them to Baryalei, to which the offender answered, "Yes, Allah willing". The group crossed the border into Syria on 4 July 2013.

The offender's change of mind

1. Four days later, on 8 July 2013, the offender called Alqudsi to tell him that he was returning to Australia. In the course of the conversation he was crying because of what he had seen. I infer from its absence from the Statement of Facts that this conversation was not intercepted. However, Alqudsi told Fayad about it the next day, 9 July 2013, in an intercepted conversation as follows: "One of - one of the boys is coming back today or tomorrow…This is a secret between me and you. Brother, the brother's coming back and I won't mention his name - very staunch brother but, brother, it's not - it's a big thing over there. It's a huge thing over there. It's not a joke….We don't want kids. This is serious. One of the brothers, after he saw what he saw, he went in and in and in and in, now he is coming back. He was speaking to me over the phone yesterday, he was crying over the phone. Like kids."

The offender's return to Australia

1. On 11 July 2013, the offender arrived at Sydney International Airport. I accept the following from the Letter of Apology: "Upon my return [to Australia] I was ostracised by everyone for differing reasons. I was a disappointment to those who I had been associating with in religious circles, and upon explaining my brief absence to close friends they disowned me as they just couldn't understand what would have made me do that. Overnight I went from [being] a person with many friends and associates to feeling alone and detached from everyone in the world, a feeling of not knowing where I belonged."
2. On 13 July 2013 at about 3.07pm, the offender telephoned Alqudsi and told him that he had returned.
3. A month later, on 13 August 2013, the offender phoned Alqudsi who said, "You know - the door's still open and I don't know what you're doing, bro". The offender told Alqudsi that he was having trouble with certain people (presumably those who had provided money for his trip) on his return and that he had told them that he would give them their money back. Alqudsi told the offender, "the brothers give greetings to you…The brothers love you very much…That's all you need to know, bro". I infer from this conversation that Alqudsi was endeavouring to persuade the offender to return to Syria while the border, referred to euphemistically as "the door", was still open by reminding the offender of the affection with which he was still held by the men with whom he had travelled to Syria.

The activities of Casey, Temel and Biber in Syria after the offender's return

1. The Statement of Facts contains details of conversations between Alqudsi and others which refer to the activities of the remaining members of the group while they were in Syria. I consider the conduct of the offender's companions to be relevant to their previous intentions, which were known to the offender when he assisted them to go to Syria as so-called "retrospectant evidence": R v Biber [2018] NSWCCA 271 (R v Biber (CCA)) at [27]-[28] (Meagher JA, Hoeben CJ at CL and Fagan J agreeing). Agreed facts concerning the offender's companions may also provide some indication of what the offender was preparing for, which is relevant to the Form Offence.
2. On 8 August 2013 Baryalei told Alqudsi that he had left his "college" and gone to the "other college we spoke about". I infer from the whole of the conversation that Baryalei had left JAN and gone to fight with Islamic State. Baryalei told Alqudsi that he was taking "everyone" with him. I do not regard the identity of the force with which the group was to fight as material. In any event, the offender had returned to Australia by this time.

The attempted departure of Amin Mohamed

1. On 21 September 2013 Amin Mohamed (Mohamed) attempted to leave Australia at Brisbane International Airport. He was issued with a "Notice of recall and cancellation of New Zealand passport" and was not permitted to depart. A baggage examination revealed that his luggage included a plastic bag labelled Abu Malik (Biber's Arab nickname) which contained an iPhone mobile handset, Islamic headdress, chocolate and a printed book in Arabic.

The execution of search warrants and the criminal prosecutions of Alqudsi, Mohamed and Biber

1. On 3 December 2013 Alqudsi was arrested and charged with a number of offences contrary to s 7 of the Act. Search warrants were executed at various properties including his two homes. Mobile phones used by Casey's wife and Temel's sister contained a number of images of Casey, Temel and Biber wearing military style fatigues and Casey and Temel holding firearms. There was an image of a number of men dressed in black holding firearms around the rear of a utility vehicle. A copy of this image was found in one of Alqudsi's homes when the search warrant was executed. It was not suggested that the offender was depicted in any of these photographs, which were taken in Syria.
2. On 3 December 2013 Mohamed was arrested and charged. His trial was conducted by Lasry J before a jury in the Supreme Court of Victoria. On 13 October 2015 he was convicted after trial of three counts of doing acts preparatory to incursion into a foreign state with the intention of engaging in hostile activity in that state contrary to s 7(1)(a) of the Act. The relevant acts were applying for a passport; booking aircraft tickets for Turkey; and obtaining contact details from Alqudsi of a person who was to ensure Mohamed's safe passage from Turkey to Syria. After trial, Lasry J imposed three sentences of 4 years and 6 months' imprisonment each which resulted in a total term of imprisonment of 5 years and 6 months: R v Mohamed [2016] VSC 581.
3. In about February 2014, Biber, who had left Syria for Turkey, was detained by Turkish authorities and deported to Australia. He arrived in Australia on 9 February 2014. He was not arrested for almost three years.
4. On 12 July 2016 Alqudsi was convicted, after trial by jury, of seven counts contrary to s 7(1)(e) of the Act of performing services for others with the intention of supporting or promoting the commission of an offence against s 6 (entry by that person into a foreign State, namely Syria, with intent to engage in armed hostilities in Syria). Count 3 related to services provided to Biber; count 4 related to services provided to the offender; and count 6 related to services provided to Mohamed. For each of the offences of providing services to Biber (count 3) and Mohamed (count 6) respectively, Alqudsi was sentenced to a term of imprisonment of 4 years. For the offence of providing services to the offender (count 4), Alqudsi was sentenced to a term of imprisonment of 4 years and 6 months. Alqudsi was sentenced to a total term of 8 years' imprisonment with a non-parole period of 6 years: R v Alqudsi [2016] NSWSC 1227.
5. On 3 November 2016 Biber was arrested and charged with an offence against s 6(1)(a) of the Act of entering a foreign state, Syria, with intent to engage in hostile activity in that state, which carried a maximum penalty of twenty years' imprisonment. He remained in custody from the time of his arrest. On 27 April 2018, following his plea of guilty, Biber was convicted of the offence with which he was charged and sentenced to a term of imprisonment of 4 years and 9 months commencing on 3 November 2016 and expiring on 2 August 2021, with a non-parole period of 2 years and 6 months: R v Biber [2018] NSWSC 535 (R v Biber (Sentence)). A Crown appeal against sentence was dismissed: R v Biber (CCA).

The offender's personal circumstances between offending and charge

1. According to the offender's wife's reference, before the offender was charged, he was sufficiently concerned about "the offence" to disclose it to her in about June 2016. It is not clear what the offender said to her about what had occurred or whether he told her, or even appreciated at the time, that what he had done was a criminal offence. I am not satisfied that, before he was charged, the offender appreciated that there was any risk of prosecution. Indeed, the fact that Alqudsi had been charged on 3 December 2013 (assuming that the offender was aware of this) would not necessarily have led him to believe that he might be charged or that he had even committed an offence. I do not regard his Letter of Apology as indicating that he was in a state of uncertain suspense before he was actually charged. In circumstances where the offender chose not to give evidence, I am not prepared to draw an inference that he believed himself to be at risk of prosecution in the period from his return to Australia until he was charged.

Arrest and charge

1. On 15 November 2016 the offender was arrested and charged with one offence against s 7(1)(a) and three offences against s 7(1)(e) of the Act. At the same time a search warrant was executed at his home. One of the items seized was an A4 printed book entitled The Book of Jihad on which the offender's fingerprints were found. The contents of the book included violent jihad and the virtues of martyrdom. The Crown accepted that no other material of an extremist nature was located during the search. I do not regard the location of the book in the offender's home as providing an indication either of his past or future intentions.
2. The offender took part in a recorded interview on 15 November 2016 in which he confirmed his identity and details and said he spoke English and Arabic. When the allegations were put to him by police, the offender exercised his right to silence. The offender divulged the passcode for his mobile phone and told police that he had not set up a passcode for his Blackberry mobile device.

Bail conditions

1. The offender was granted bail on 15 November 2016 subject to the provision of a surety of $500,000. This requirement was varied on 13 December 2016 to require surety of $150,000, which was provided on that day, as the offender's mother had been able to obtain a loan for that sum from St George Bank. The offender was released on bail on 13 December 2016, having spent 29 days in custody. Since that time he has been subject to strict bail conditions.
2. As a condition of his bail the offender was required to reside at a specified address. From 13 December 2016 to 11 July 2017 he had to report twice daily to the Liverpool Police Station. There was a curfew condition that he be at home from 10.30pm until 8am on Mondays, Wednesdays and Fridays and from 8pm until 8am for the remainder of the week. A curfew enforcement condition required him to present himself at the front door if required by a police officer. He was required to surrender his passport and he was limited to one mobile phone and required to provide the number to the Officer in Charge. On 11 July 2017 the reporting condition was reduced to require once daily reporting. On 20 June 2018 the curfew condition was varied and required the offender to be at home from 10.30pm until 6.30am every night, except for the purpose of attending to the health or medical needs of his child (who was born in May 2018). On 31 October 2018 I removed the curfew condition. It was accepted by the Crown that there were no breaches of the bail conditions. At no time did the Crown oppose bail although it opposed the removal of the curfew condition.

Committal and post-committal

1. On 24 May 2017 the prosecution offered to accept a plea by the offender to one count contrary to s 7(1)(e) of the Act, being a "rolled up" count in respect of the three offences under s 7(1)(e) with which he had been charged. The remaining charge, an offence against s 7(1)(a), was proposed to be placed on a schedule pursuant to s 16BA of the Crimes Act. The offender rejected the offer.
2. On 29 September 2017, the offender pleaded not guilty in the Local Court to the four charges and was committed from the Parramatta Local Court to this Court, having waived his right to a committal proceeding. These proceedings were listed with the proceedings concerning Biber. On 3 November 2017, at the first arraignments list in this Court, Biber pleaded guilty and, as referred to above, was subsequently sentenced. On 3 November 2017, the offender pleaded not guilty to the four charges on the original indictment (one offence against s 7(1)(a) and three offences against s 7(1)(e) of the Act) and his trial was listed for 19 November 2018 with an estimate of 2-3 weeks.
3. Not long before 3 August 2018, the offender agreed to accept the Crown's offer (which had been made on 24 May 2017) to plead to a rolled up charge under s 7(1)(e) and have the charge under s 7(1)(a) dealt with pursuant to s 16BA of the Crimes Act. On 6 August 2018 the offender pleaded guilty to a fresh indictment dated 3 August 2018 in those terms. A form pursuant to s 16BA of the Crimes Act was signed by the offender and tendered at the sentence hearing.

Crimes (Foreign Incursions and Recruitment) Act

1. The Commonwealth Parliament passed the Act in 1978 to implement Australia's obligations following a series of United Nations resolutions which called on nation states to stop foreign fighters and those who assist them. Section 6 of the Act made it an offence to enter a foreign State for the purpose of engaging in armed hostilities or to engage in armed hostilities in a foreign state and carries a maximum penalty of 20 years.
2. Section 7(1) of the Act provides: "7 Preparations for incursions into foreign States for purpose of engaging in hostile activities (1) A person shall not, whether within or outside Australia: (a) do any act preparatory to the commission of an offence against section 6, whether by that person or by another person; (b) accumulate, stockpile or otherwise keep arms, explosives, munitions, poisons or weapons with the intention of committing an offence against section 6, whether by that person or by another person; (c) train or drill or participate in training or drilling, or be present at a meeting or assembly of persons with intent to train or drill or to participate in training or drilling, any other person in the use of arms or explosives, or the practice of military exercises, movements or evolutions, with the intention of preparing that other person to commit an offence against section 6; (d) allow himself or herself to be trained or drilled, or be present at a meeting or assembly of persons with intent to allow himself or herself to be trained or drilled, in the use of arms or explosives, or the practice of military exercises, movements or evolutions, with the intention of committing an offence against section 6; (e) give money or goods to, or perform services for, any other person or any body or association of persons with the intention of supporting or promoting the commission of an offence against section 6; (f) receive or solicit money or goods, or the performance of services, with the intention of supporting or promoting the commission of an offence against section 6; (g) being the owner, lessee, occupier, agent or superintendent of any building, room, premises or place, intentionally permit a meeting or assembly of persons to be held in the building, room, premises or place with the intention of committing, or supporting or promoting the commission of, an offence against paragraph (a), (b), (c), (d), (e) or (f); or (h) being the owner, charterer, lessee, operator, agent or master of a vessel or the owner, charterer, lessee, operator or pilot in charge of an aircraft, intentionally permit the vessel or aircraft to be used with the intention of committing, or supporting or promoting the commission of, an offence against paragraph (a), (b), (c), (d), (e) or (f).
3. The only offence for which the offender is to be sentenced is the Principal Offence (s 7(1)(e)), although the Form Offence (s 7(1)(a)) is also to be taken into account in that sentence. I have, however, set out s 7(1) of the Act in full to show the range of offences which are covered by it. Neither the Principal Offence nor the Form Offence involved arms, vessels or any substantial degree of organisation unlike many of the offences that would fall within s 7(1). What the offender provided was himself, his capacity to speak Arabic, his willingness to fight, his loyalty to Alqudsi and his preparedness to travel from Sydney to Bab Al-Hawa and communicate with Alqudsi along the way. These were the attributes which he used in performing services for the other men and in preparing himself for entry into Syria to fight in the civil war.
4. Any judgment about the merits or otherwise of the relevant armed conflict is irrelevant to the criminality associated with offences under ss 6 or 7 of the Act: R v Biber (Sentence) at [93]; R v Biber (CCA) at [29].

Matters relevant to sentencing

1. In sentencing the offender, I am obliged to impose a sentence that is of a severity appropriate in all the circumstances of the offence: s 16A(1) of the Crimes Act. I am required to take into account such matters as are relevant in s 16A(2) as well as other matters raised by the parties or which I consider to be relevant.

The nature and circumstances of the offence

1. The facts relating to the Principal Offence and the Form Offence are set out above. The two offences were complete by the time the group which included the offender was ready to cross the border into Syria. The maximum penalty of 10 years' imprisonment for an offence against s 7 is an important indication of the seriousness with which the Parliament views the provision of assistance and support to foreign fighters and preparation for entry to a foreign state with the intention of engaging in armed hostilities.
2. The offender had an association with Alqudsi, having met him at Charles Sturt University when they were enrolled in a course on Islam. Both Alqudsi and the offender had a Palestinian background. Alqudsi appears to have played a substantial role in grooming the offender and other young men and urging them to go to Syria to fight. On 28 June 2013 Alqudsi introduced the offender to Temel, Biber and Casey and appointed him their commander. The evidence does not reveal the reason for the appointment. I reject Mr Scragg's submissions as to the reason as no more than speculation unsupported by evidence.
3. The offender accompanied Biber and Temel on the flight from Sydney which left on 1 July 2013, joined Casey in Turkey and remained with the three men at least until they crossed the border into Syria on about 4 July 2013. Throughout this period the offender was an important, although not the sole, point of contact between Alqudsi, the other members of the group and those whom they were to meet. Although Alqudsi regularly spoke to the other members of the group, he entrusted the offender with the responsibility of informing him about the location of the men and their plans. The offender fulfilled that role. However, the men had recourse to Alqudsi for basic information, such as how much money to change into what currencies, as they had little idea what to do and relied on Alqudsi to direct them.
4. While the offender performed a useful role for the other men, what he actually did for them was relatively basic and largely involved telephoning Alqudsi and answering calls from Alqudsi. The offender's capacity to speak Arabic was thought to be useful to deflect attention from the group, particularly when the men were trying to change money and were fearful of being arrested before they crossed the border. In Turkey, the group was also assisted by the fact that Temel and Biber could speak Turkish. Mr Scragg submitted that the offender was "nothing more than Alqudsi's puppet". I reject this submission. Although the men's real commander was, until they met Baryalei, Alqudsi, the offender was Alqudsi's designated deputy and, as such, was no mere "puppet".
5. The offender was undoubtedly a willing participant in the journey. It is telling that, on 3 July 2013, when the group was near the border with Syria, the offender reported to Alqudsi that the boys had no fear and were "beautiful and ready" (for martyrdom).
6. I regard the objective seriousness of the offender's conduct as below the mid-range.

Immediate post-offence conduct

1. Although it is not material to the objective seriousness of the offending conduct, it is necessary to address what occurred after it was completed because of its bearing on other factors relevant to sentencing. I am satisfied that the offender crossed the border into Syria. I regard Alqudsi's report to Fayad in their conversation on 9 July 2013 that the offender went "in and in and in and in" as code for the offender's journey to Istanbul, Hatay, Bab Al-Hawa and, finally, Syria. I also regard Alqudsi's reference to what the offender "saw" as being a reference to a disturbing sight which made the offender decide to return home to Australia rather than fulfil his intention of fighting in the Syrian civil war. This is consistent with the length of the period between 4 July 2013 when the men reached the border and 8 July 2013 when the offender called Alqudsi to tell him that he was coming home. It is also consistent with the Letter of Apology in which the offender said: "But at no time did we think that we would be at the front-line fighting. As soon as I was exposed to this terror, I immediately felt scared and commenced my return to Australia."
2. I do not accept the first sentence of the extract. However the first sentence makes clear that "this terror" in the second sentence is the terror of front-line fighting. The offender has admitted in this extract that he was exposed to the terror of front-line fighting. In the circumstances, this can only have occurred within Syria itself. The evidence does not reveal the precise reasons for his decision to return. I reject Mr Scragg's submission that "with Alqudsi half a world away the offender broke free" as speculative and unsupported by evidence.
3. Further, the inference that the offender entered Syria is not a circumstance of aggravation since he has not been charged with an offence against s 6 (entering a foreign state with the intent of engaging in armed hostilities), which carries a maximum penalty of 20 years' imprisonment: The Queen v De Simoni (1981) 147 CLR 383 at 389 (Gibbs CJ); [1981] HCA 31. It is therefore not to be taken into account against the offender and does not increase the objective seriousness of his offending: Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [29] (Bell and Keane JJ). It belongs to the category of the facts referred to in Weininger v The Queen at [20] which forms part of the narrative and, being neither mitigating nor aggravating, need not be proved to any particular standard.

Injury, loss or damages resulting from the offence

1. For the reasons given in R v Alqudsi at [94], I regard the potential consequences of the Principal Offence (including death of those the offender assisted, prolongation of a civil war and the effect on Australia's international relations) as an intrinsic part of an offence under s 7 and not something to be taken into account separately by way of aggravation. For completeness I note that, although the offender assisted each of the other three men, each was a volunteer who had made up his mind to go to Syria to fight before meeting the offender at the shura on 28 June 2013. None of the men needed, or obtained, any encouragement from the offender to go to Syria.

The degree to which the offender has shown contrition for the offence

1. I accept the offender's description of himself in the Letter of Apology which is corroborated by the objective circumstances and the references provided by his mother and wife: ". . . I lost my moral compass. I met people who I thought were better than me and who knew better than me. . . I never intended any malice to society. At the time I honestly believed that I was doing the right thing and justified my actions in my subjective mind and now I completely understand how gullible that was. . . . I have given a lot of thought about [sic] the boy I was in 2013 in comparison to the man I now am in 2018 and am proud of how I have evolved and grown thanks to my family and friends. I only wish I could go back in time and caution myself about what I was getting myself into, so it could all have been avoided."
2. In essence, the offender, though expressing regret, seeks to blame others and to justify his conduct by reference to his youth and gullibility. While the offender was a victim, he was also a perpetrator.
3. In his Letter of Apology, the offender apologised to the community and his family for the "headache I have caused". He acknowledged that there were "no excuses" for his behaviour and said that he "can't wait for the next chapter of my life". As the offender did not give evidence, I am not prepared to place weight on these statements. I am not persuaded that the offender has shown true remorse or contrition although he undoubtedly regrets the consequences for himself and his family of his offending. Nor am I persuaded that his plea of guilty showed an intention to facilitate the course of justice. The Crown case, which was based on telephone intercepts, was not only strong but also largely incontrovertible. By pleading guilty, the offender obtained the benefit of a rolled-up single charge, the Principal Offence, and a fourth charge being dealt with as the Form Offence.

The offender's plea of guilty

1. The offender's guilty plea is also relevant for its utilitarian value. I accept that there should be a specified discount in recognition of the utilitarian value of the offender's guilty plea because it has saved the expense of a trial which was listed for 2-3 weeks: Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 at [277]-[278].
2. I propose to allow a discount for the utilitarian value of the offender's plea of guilty of 15%.

Specific deterrence

1. I do not consider there to be any particular need for specific deterrence. The offender's attitude and circumstances have changed significantly since 2013. He appears to have grown up and is no longer susceptible to influences such as Alqudsi's, which inclined him to commit the Principal and Form Offences.

General deterrence

1. The need for general deterrence is significant. It is important to denounce offences such as the Principal and Form Offences in order to educate the community, including potential offenders, about the criminality of foreign fighting as well as preparatory acts or acts of assistance and the extent to which the commission of such crimes by Australians has the potential to harm the nation's international reputation. The sentence imposed should be sufficient to deter or discourage other like-minded persons from engaging in such conduct.
2. Young men, such as the offender, are notoriously susceptible to a call to arms, particularly in furtherance of what they believe, or have been led to believe, amounts to a just cause. In this context, it is important to emphasise that the role of general deterrence (and denunciation) in sentencing is not limited to the utilitarian purpose of regulating the risks of criminal behaviour. The obligation of the state (through the sentencing court) is also to express the community's disapproval of the offending conduct: Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ). I regard it as necessary for a sentence of imprisonment which involves actual incarceration to be imposed to achieve this purpose: Power v The Queen (1974) 131 CLR 623 at 627-629 (Barwick CJ, Menzies, Stephen and Mason JJ); [1974] HCA 26.

Punishment

1. Punishment is an important purpose of sentencing. The sentence I impose must take that purpose into account, while acknowledging that the offender has already suffered for his crimes. On his return to Australia, he was shunned by those who had helped fund his travels as well as members of the wider community in whom he confided who found it difficult to understand why he had gone to Syria to fight. In August 2017, while on bail, the offender married and fathered a child who was born in May 2018. These milestones have taken place under the shadow of a criminal trial and, after his plea of guilty, a sentence hearing.
2. The bail conditions to which the offender has been subjected were, I infer, "designed to ensure the integrity and effectiveness of the trial process but not to act as a form of anticipatory punishment of a putative offender" (Hugh Dillon (ed.); "Presuming Innocence", Advocacy and Judging: Selected Papers of Murray Gleeson, (2017, Federation Press), 271). Nonetheless, the bail conditions, although unremarkable, have substantially constrained his freedom and been a daily, if not twice daily, and nightly, reminder both to himself and his loved ones of the pending charges and, after his plea, the prospect of the sentence to be imposed for the Principal Offence.

The relevance of the Form Offence

1. The offender is not to be sentenced for the Form Offence. However, the effect of s 16BA of the Crimes Act is that the Court is to take into account the Form Offence with a view to increasing the penalty that would otherwise be appropriate for the Principal Offence. The approach laid down in Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146 at [39] and [42] by Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) with respect to offences on a Form 1 pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW) has been held to be applicable to s 16BA of the Crimes Act: R v Lamella [2014] NSWCCA 122 at [48] (Price J, Garling and Bellew JJ agreeing).

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

Subjective circumstances

1. The offender was born in 1994. He is the second of three children. His mother is an accredited court interpreter and translator and his father is a senior accountant who works in the public service. The offender's childhood was relatively non-religious. In early 2013 he became curious about Islam and enrolled in the Islamic Studies and Research Course at the Charles Sturt University, where he met Alqudsi who influenced him in the decision to go to Syria to fight.
2. There is scant indication of what the offender did in the period between his return to Australia in July 2013 and January 2016 when he met Hyam. Accordingly, no assumption can be made about this period, except that no further offending occurred. Shortly after meeting Hyam the offender enrolled in a certificate course through Trades College Australia in Punchbowl and worked in the construction industry. In his Letter of Apology he said that the work he had done was "in development projects within the family business". The offender told Ms Peters that he has been unemployed and financially reliant on his parents since 2016. The evidence does not enable me to draw inferences about the timing of his employment and any connection between the loss of his employment and his arrest and incarceration. While his bail conditions have been strict, there is no evidence to explain why the offender has not worked since 2016.
3. The offender was arrested in November 2016, released on bail in December 2016 and married in August 2017. The offender is closely involved in the care of his son who was born in May 2018. Mr Scragg informed me at the sentence hearing that the offender's wife is expecting their second child.

The offender's age and mental condition

1. Of the offender's characteristics, the most significant for present purposes was his age at the time of offending when he was only 19 years old. I accept the offender's admission to Ms Peters that he "concealed his movements from his family and found the secrecy of the situation appealing". I regard this statement as typically adolescent.
2. The Crown did not dispute that the "boy" who rang Alqudsi on 8 July 2013, crying about what he had seen and wanting to come back to Sydney was the offender. At the very least, I would infer that the offender was scared and came home because he changed his mind about being involved in the war in Syria. As the offender did not give evidence, I am not prepared to accept that he returned to Australia because he felt remorse or contrition. Indeed, such an inference would be inconsistent with the maintenance of his plea of not guilty until 6 August 2018. The objective facts are consistent with a young man wanting to go on an adventure to become a hero and fight for a just cause but, when he realised that he might well die in the process, returning to the safety of his family and his home in Sydney.

Antecedents

1. Between 2007 and 2010, the offender was found guilty of various summary offences which, because of his age, were dealt with in the Children's Court, principally either with control orders pursuant to s 33(1)(g), or a bond pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW). His juvenile offending history included recklessly wound other while in company. I do not regard these matters as particularly significant in the present context.

Character

1. The statutory declaration of Mr Danndoui is to the effect that the offender was among those people who, on 10 November 2018, subdued a motorcyclist who wielded a chain-saw and a screwdriver in Kemps Creek after he had collided with a four-wheel drive. I accept that such conduct exhibited bravery and a concern for others.
2. The statements of the offender's mother, wife and friend indicate that he has become a loving, attentive and devoted husband and father.

Prospects of rehabilitation

1. I regard the offender's prospects of rehabilitation as good on the basis of his conduct during the three and a half years between the offending conduct and his arrest, his conduct since being charged, his compliance with bail conditions and his family circumstances. In these circumstances his lack of true remorse or contrition is of limited weight as I do not consider that he is likely to re-offend.

Effect on the offender's family and dependants

1. For any period of imprisonment, the offender will be separated from his wife and child. If a sentence of imprisonment is imposed, it is likely that his second child will be born while he is in prison. The offender and his family have been financially supported by his parents since 2016, during which period he has been unemployed. I assume that they will continue to support the offender's wife and child or children during any period of imprisonment. Although I accept that the offender's family will suffer from any separation which results from a term of imprisonment, I do not regard the potential effect as exceptional except in the case of the offender's wife and son. His wife suffered pre- and post-natal depression with respect to her first child and was assisted through this period by the offender. The offender also has a close relationship with his seven-month old child. Because of his age, the child will not be able to understand the reason for the separation and will suffer from being without his father.

Delay by prosecuting authorities

1. Delay may be relevant to sentencing in three ways: first, a person may be left in "uncertain suspense" for an extended period; second, an offender may demonstrate rehabilitation in the ensuing period; and, third, a sentence for a "stale crime" calls for a "measure of understanding and flexibility of approach": Blanco v R [1999] NSWCCA 121; (1999) 106 A Crim R 303 at [16] (Wood CJ at CL, Bell J and Smart AJ agreeing). Of these, I regard only the second to be presently relevant.
2. Much of the Crown case against both Alqudsi and the offender derived from lawfully intercepted telephone calls which took place between June and October 2013. Alqudsi and Mohamed were arrested on 3 December 2013. The offender was not charged and arrested until 15 November 2016. No explanation has been given for the considerable delay by prosecuting authorities. A consequence of the delay is that the offender has had an opportunity, which I accept he has taken, to mature and rehabilitate himself before the imposition of sentence.
3. As set out above, since the offender's release from custody 29 days after his arrest, he has been subject to strict bail conditions which I regard as onerous. I am entitled to take them into account in determining the appropriate sentence to be imposed even where they do not (as in the present case) amount to quasi-custody: R v Cartwright (1989) 17 NSWLR 243 at 258 and R v Webb [2004] NSWCCA 330; (2004) 149 A Crim R 167 at [17]-[18] (Grove J, Simpson and Shaw JJ agreeing).

Parity

1. Equal justice requires that, as between co-offenders, there should not be any marked disparity of sentence that gives rise to a justifiable sense of grievance: Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26. Although the offender, Alqudsi, Biber and Mohamed were not convicted of the same offences, they were co-offenders to whom the principles of parity apply: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30] (French CJ, Crennan and Kiefel). However, in applying parity principles, it is important to take account of the difference in the offences for which the relevant offender stood, or stands, to be sentenced. The Court is not, under the guise of parity principles, to engage in any review of prosecutorial discretion: Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 (French CJ, Hayne, Kiefel, Bell and Keane JJ) at [30] and [35].
2. Although the parity principles apply in a broad sense to Mohamed (to whom Alqudsi also provided services, as charged in count 6 of Alqudsi's indictment) there can be no comparison between the sentence imposed for Mohamed's offences and the offender's Form Offence (for which no sentence is imposed). The prosecutor's discretion to include the s 7(1)(a) offence on a form under s 16BA of the Crimes Act rather than as a charge on the offender's indictment is not reviewable and diminishes the effect of parity principles, except with respect to the Principal Offence: Dunn v R [2018] NSWCCA 108 at [20]-[23]. Further, Lasry J found that he could not be satisfied, even on the balance of probabilities, that Mohamed had "fully renounced the religiously motivated desire of going to Syria to engage in hostile activities in that country": R v Mohamed at [39]. This is another point of distinction with the present case.
3. Alqudsi committed seven offences against s 7 of the Act, of which one related to services provided to the offender, another to services provided to Biber and another to services provided to Mohamed. Biber was sentenced for an offence against s 6 of the Act, which carries a maximum penalty twice that for s 7. The offender is to be sentenced for one offence against s 7(1)(e) and I am to take into account the Form Offence (against s 7(1)(a)) in imposing that sentence.
4. As the Crown accepted, there are significant differences between the offender's involvement and that of Alqudsi, Biber and Mohamed. Further, as referred to above, the manner of charging them has been different. Alqudsi's offending was more serious overall (and with respect to the particular offence involving services provided to the offender) than that of the offender although Alqudsi's offending did not involve his departure from Sydney. Biber pleaded guilty to a much more serious offence than the offence for which the offender pleaded guilty in satisfaction of the original indictment which gives rise to practical difficulties in making any meaningful comparison.
5. In June/July 2013, Alqudsi was almost 39 years old, Mohamed was almost 23, Biber was almost 21 and the offender was only 19. Alqudsi, as the older man, influenced and encouraged the three younger men (and others) to travel. The offender was the youngest of the co-offenders. Although the offender appears to have been significantly influenced by Alqudsi, I reject Mr Scragg's submission that Temel, Casey and Biber were "always more committed to Alqudsi and his cause than the offender" as speculative and lacking in evidence.
6. Subject to the reservations and qualifications referred to above, I have taken into account the sentences imposed on Biber, Alqudsi and Mohamed for the purposes of parity.

Comparative cases

1. I have read the authorities to which the parties have referred in light of what the High Court said in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]-[49] and [53]-[56] about the limited value in the sentencing process of previously decided cases, except those that concern sentences imposed on co-offenders where the parity principles apply.

Sentencing options

1. I have considered all available options, including those proposed by Mr Scragg (a community correction order and an intensive correction order). I have also considered the conditions that might be imposed on an offender under a sentence or order: s 16A(2). I have also considered whether to suspend the sentence.
2. The seriousness of the offence, as indicated by the maximum penalty, and importance of general deterrence and punishment, require a sentence of imprisonment to be imposed which involves full-time custody: Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; [2004] HCA 46 at [163] (Kirby J). I am satisfied that no sentence other than a sentence of full-time imprisonment is appropriate in all the circumstances of the case: s 17A of the Crimes Act.
3. Because of the length of the sentence, I am required by s 19AC(1) of the Crimes Act to make a recognizance release order pursuant to s 20(1)(b) of the Crimes Act. In determining the period of imprisonment before the offender is to be released on recognizance, I have had regard to the principles in Power v The Queen at 627-629 and the requirements of s 19AF of the Crimes Act.

Other matters

1. The offender has spent 29 days in custody. I propose to back-date the sentence to take account of this period in custody as well as to make some allowance for the period of approximately two years during which the offender has been subject to strict bail conditions.
2. I note the undertaking given by Mr Scragg to explain to the offender his sentence as well as the purpose and consequence of the recognizance release order in accordance with s 16F of the Crimes Act.

Orders

1. Muhammad Abdul-Karim Musleh: 1. You are convicted of the count on the indictment. 2. I sentence you to a term of imprisonment of 2 years and 1 month commencing on 13 August 2018 and expiring on 12 September 2020. 3. I make a recognizance release order pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) directing that on 12 August 2019, after serving 1 year of that sentence, on giving surety in the sum of $100 without security, you be released upon recognizance to be of good behaviour for the remainder of the term, being 1 year and 1 month expiring on 12 September 2020.

Amendments 13 December 2018 - Correction to Order (3) 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: 13 December 2018