o 5) (Sentence) [2019] NSWSC 720
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category: Sentence
Parties: Regina (Plaintiff)
Moudasser Taleb (Defendant)
Representation: Counsel:
S Duggan (Plaintiff)
T Spohr (Defendant)
[2]
Solicitors:
Director of Public Prosecutions (Cth) (Plaintiff)
Legal Aid Commission (NSW) (Defendant)
File Number(s): 2017/179287
[3]
EX TEMPORE Judgment (REVISED)
On 14 June 2019, I was called upon to sentence Moudasser Taleb in relation to an offence of engaging in conduct preparatory to committing a foreign incursion offence, [1] which had been committed in 2017 when he was 22 years of age and psychiatrically unwell. He had been involved with a number of people in what can be generally described as radical Islamic activities and eventually had some dealings with an undercover police officer. This led him to be arrested at Sydney Airport on 15 June 2017, when he had the intention of flying to Syria and joining in the war as part of the Caliphate formed by Islamic State.
I am going to assume that any future reader of these ex tempore remarks is familiar with what I will refer to as "the sentencing judgment". [2] I will not, in the course of these remarks, say very much more about the details of the offending or the subjective circumstances that led me to the conclusion to which I then came.
At that stage, speaking approximately, Mr Taleb had been in custody for a period approaching two years. He had been held in extremely onerous conditions of incarceration throughout the period of remand. I formed the view, to use the vernacular, that that was enough punishment, but that even if I were to impose a custodial sentence upon him the relevant Commonwealth statutory provisions relating to the length of any non-parole period was such that any period of supervision or parole would be very short.
I also found that because of his radicalisation and psychiatric illness at that stage, the protection of the community was a significant factor, even though there was evidence before the Court that he had no intention, and specifically denied any intention, to commit a terrorist act or similar act in Australia.
Even so, the protection and safety of the community was a potent factor and it led me, counterintuitively perhaps, to the conclusion that the best outcome was to impose a recognizance, formally known as a conditional release order, under s 20(1)(a) of the Crimes Act 1914 (Cth) ("Commonwealth Crimes Act"). That order was for a period of 5 years. He was subject to a number of strict conditions for that period. Those conditions are set out in the final orders made at paragraph [120] of the sentencing judgment.
It seems that for a period of more than a year Mr Taleb was compliant with the conditions and there were no incidents. However, since November 2020 and through to April 2021, he breached the conditions of the recognizance in a number of different ways.
The Commonwealth Director of Public Prosecutions ("the Director"), by way of two "summons and information", brought proceedings pursuant to s 20A of the Commonwealth Crimes Act, which is the provision that applies when a person fails to comply with an order under s 20(1).
The most serious breach of the order, at least in terms of it constituting a serious offence under the criminal law, resulted in Mr Taleb's arrest on 16 April 2021. He was charged with a number of firearms offences, relating to being in possession of a shortened shotgun and ammunition. That gun was loaded when it was found. He was dealt with in relation to those offences and sentenced to a term of imprisonment comprising a total aggregate sentence of 24 months, with a non-parole period of 13 months. That sentence commenced on the day on which he was taken into custody, that is 16 April 2021. The non-parole period expired on 15 May 2022. However in a private hearing on 12 May 2022 the NSW State Parole Authority revoked his statutory parole order and he remains in custody.
The total aggregate sentence will conclude on 15 April 2023. However, on 24 June 2022, there will be another parole hearing where the decision as to whether or not to revoke his parole will be revisited in circumstances where he will actually have an opportunity to provide submissions to the State Parole Authority. That hearing is to be heard in public.
The matter has been before me a couple of times since the first summons and information was filed by the Director, and both summonses have been heard today. I received a bundle of material, which became Exhibit A, tendered by the prosecution, but which really contains evidence relied on by both sides, including material relating to the circumstances surrounding the various breaches of the s 20(1)(a) order, some reports relating to his psychiatric condition and the facts of those firearm offences for which he has been sentenced.
To be specific, the breaches are set out in the two summonses as follows:
1. On 12 November 2020, the offender, without reasonable cause or excuse, failed to comply with condition 4(c) of the recognizance order, "to follow all reasonable directions of your Community Corrections Officer", by failing to make himself available for a home visit as directed.
2. On 26 November 2020, the offender, without reasonable cause or excuse, failed to comply with condition 4(g) of the recognizance order, "to accept psychiatric and psychological treatment and take all medication, including anti-psychotic medication, as recommended, directed or prescribed by your medical practitioner or psychiatrist", by failing to accept an anti-psychotic depot injection as directed by Bankstown Mental Health Service.
3. On 4 December 2020, the offender, without reasonable cause or excuse, failed to comply with condition 4(g) of the recognizance order set out at paragraph 11(2) above, by failing to accept an anti-psychotic depot injection as directed by Bankstown Mental Health Service.
4. Between 24 December 2020 and 12 April 2021, the offender, without reasonable cause or excuse, failed to comply with condition 4(c) of the recognizance order set out at paragraph 11(1) above, and condition 4(e), "to attend psychological and other counselling, including counselling directed at 'deradicalisation' or similar such counselling, as directed by your Community Corrections Officer", by failing to book an appointment with an Islamic psychologist as directed.
5. On 16 January 2021, the offender, without reasonable cause or excuse, failed to comply with condition 1 of the recognizance order, "to be of good behaviour for a period of 5 years", by committing an offence contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW), by being in possession of a prohibited drug, namely 7.7 grams of cannabis.
6. On 15 February 2021, the offender, without reasonable cause or excuse, failed to comply with condition 4(f) of the recognizance order, "to attend medical, psychiatric and psychological appointments as directed by your Community Corrections Officer", by failing to attend an appointment with a private psychiatrist as arranged by Bankstown Community Mental Health.
7. On 25 February 2021, the offender, without reasonable cause or excuse, failed to comply with condition 4(c) of the recognizance order set out at paragraph 11(1) above, by failing to report to Bankstown Community Corrections as directed.
8. On 16 March 2021, the offender, without reasonable cause or excuse, failed to comply with condition 4(c) of the recognizance order set out at paragraph 11(1) above, by failing to report to Bankstown Community Corrections as directed.
9. On 16 April 2021, the offender, without reasonable cause or excuse, failed to comply with condition 1 of the recognizance order set out at paragraph 11(5) above, by committing an offence contrary to s 74(1) of the Firearms Act 1996 (NSW) by possessing a prohibited firearm in contravention of a firearms prohibition order.
10. On 16 April 2021, the offender, without reasonable cause or excuse, failed to comply with condition 1 of the recognizance order set out at paragraph 11(5) above, by committing an offence contrary to s 74(3) of the Firearms Act by possessing ammunition in contravention of a firearms prohibition order.
11. On 16 April 2021, the offender, without reasonable cause or excuse, failed to comply with condition 1 of the recognizance order set out at paragraph 11(5) above, by committing an offence contrary to s 66(1)(b) of the Firearms Act by possessing a defaced firearm.
12. On 16 April 2021, the offender, without reasonable cause or excuse, failed to comply with condition 1 of the recognizance order set out at paragraph 11(5) above, by committing an offence contrary to s 62(1)(b) of the Firearms Act by possessing a shortened firearm (not pistol) without authority.
13. On 16 April 2021, the offender, without reasonable cause or excuse, failed to comply with condition 1 of the recognizance order set out at paragraph 11(5) above, by committing an offence contrary to s 39(1)(a) of the Firearms Act by not keeping a firearm safely (not pistol or prohibited firearm).
Those breaches are of serious concern when it comes to considering the issue of community safety. Obviously enough his possession of a firearm, and a loaded one at that, is extremely troubling. But it is also of great concern that a number of the conditions, which were calculated to provide protection to the community and the opportunity for Mr Taleb to rehabilitate, have not been complied with. I am speaking there about his not attending certain appointments at the direction of his Community Corrections officer, concerned with de-radicalisation, as well as not attending psychiatric treatment sessions. There is also a concern that he has been using cannabis in spite of the fact that that drug is likely to trigger psychiatric illness of the kind that he suffers, rather than alleviate the symptoms, whereas he is of the belief it will do the latter.
Doctor Nielssen has provided two reports which post-date Mr Taleb's sentencing, although he also provided evidence at the sentencing hearing. He is well familiar with Mr Taleb and his circumstances and conditions. The evidence suggests that he was something of an advocate for him around the time of the sentencing proceedings.
Doctor Nielssen maintains, and I accept, that Mr Taleb has serious illnesses of paranoia and schizophrenia which are, to a degree, treatment resistant. The details of Dr Nielssen's assessment are set out in his two reports, dated 15 March 2021 and 12 April 2022, at pages 105 to 114 of Exhibit A. That echoes the contents of a report written by a Justice Health clinical nurse consultant, dated 4 August 2021.
A further matter of concern is that Mr Taleb was not subject, for some reason which appears to be administrative (or what is described as "poor management" by the Justice Health clinical nurse consultant in an email set out at page 115 of Exhibit A), to a Community Treatment Order when he was at liberty. He was, however, subject to a number of recognizance conditions which ought to have achieved the same thing, except Mr Taleb chose, whether that was an entirely free and rational choice or the product of his health issues, to not comply with those conditions.
Dr Nielssen explains that Mr Taleb had quite adverse reactions to some of the anti-psychotic medication that he has been prescribed.
We are now where we are, and Mr Spohr, who appears for Mr Taleb, acknowledges that the breaches alleged by the Director are admitted by Mr Taleb and that the revocation of the s 20(1)(a) order is inevitable and that there is no other choice. I agree with the concession made by Mr Spohr, and with the submission made by Mr Duggan, that it would be inappropriate to take no action on the breaches. They were escalating and serious in their nature and they raised real concerns for the safety of the community.
The issue then becomes; what do I do? It is an exercise of sentencing for the offences for which he was previously been sentenced and I am confronted with the same conundrum as I was then. I previously assessed the seriousness of offences, in terms of their relative seriousness for foreign incursion and terrorism recruitment offences, as being at the lower end of the scale and also that he had been punished enough.
I accept Mr Duggan's submission, on behalf of the Director, that community safety is now a feature, given what I now know, which must be given more weight in the synthesis of factors relevant to sentencing. However, the sentence must remain proportionate to the crime, and I am not here empowered with some ability to simply keep Mr Taleb incarcerated for a period extending beyond that which is proportionate to his crimes. [3]
It also has to be noted that he has been in custody now for over a year for those offences constituting the breaches of the recognizance order, and may remain there for the full two years of the relevant sentence, depending on what the State Parole Authority choses to do. If that does not bring home to him the consequences of breaching orders such as this, it is difficult to know what would.
The options are limited. The Director's primary position is that I should impose a full-time custodial sentence, but those submissions are made with appropriate restraint and an acknowledgement of the difficulty in approaching the matter on that basis, which is probably the easiest thing to do, in so far as it would provide a very limited, if any, period of supervision beyond his period of imprisonment.
As I said when imposing the original sentence, the principle of proportionality would mean that any sentence I would impose would not be very much longer than the period he has already spent in custody.
As Mr Spohr submits, there is also a question of totality that arises because he has been in custody since April last year, both as a result of the breaches of the recognizance order and the sentence for the firearm offences.
The real, or primary, question is whether there is any alternative to the imposition of a sentence of imprisonment or, put the other way, whether a sentence of imprisonment is the only appropriate sentence. I am not satisfied that it is any more than I was satisfied when I first imposed sentence on him.
Mr Taleb is a young man who requires treatment. Mr Duggan's submission that he seems to respond better to treatment while in custody than in the community is probably correct on the evidence before me. However, the fact is that he is not going to be kept in custody forever and he will, at some stage, need to find a way to receive treatment in, and assimilate back into, the community.
Both parties agree that a Community Corrections Order made pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is an available sentencing option that is picked up by s 20AB of the Commonwealth Crimes Act.
After some deliberation, internal as it is, I have come to the conclusion that that is the appropriate way to deal with the matter.
The conditions of such an order will be in similar terms to those which attached to the original order under s 20(1)(a).
I accept Mr Duggan's submission that the order must be of the maximum duration allowed under the legislation, which is 3 years, and the legislation provides that any such order is to commence today, albeit that Mr Taleb is in custody and will remain in custody pending the outcome of the State Parole Authority's hearing later in the month.
For those reasons I make the following orders:
1. On the offender's admissions and the evidence tendered by the prosecution, the breaches of the recognizance order previously made under s 20(1)(a) of the Crimes Act 1914 (Cth) are established.
2. Pursuant to s 20A(5), the recognizance order previously made under s 20(1)(a) of the Crimes Act 1914 (Cth) made on 14 June 2019 is revoked.
3. The offender is subject to a Community Corrections Order pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 3 years commencing today, 7 June 2022.
4. The Community Corrections Order is subject to the following conditions:
1. The offender must not commit any offence.
2. The offender is to appear before the Court if called upon to do so at any time during the period of the Community Corrections Order.
3. The offender is to submit to supervision by a Community Corrections officer.
4. The offender is to report to the nearest office of Community Corrections to his home within seven days of his release from custody.
5. The offender is to attend on psychological and other counselling directed at "de-radicalistion", or similar such counselling as directed by his Community Corrections officer.
6. The offender is to receive treatment from a psychologist or psychiatrist in accordance with the reasonable directions of the Community Corrections officer, including:
1. attending appointments arranged by his Community Corrections officer.
2. taking medications recommended by the medical practitioner or psychiatrist arranged by his Community Corrections officer.
1. The offender is to comply with the conditions of any existing Community Treatment Order under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
2. The offender is not to:
1. use the messaging application known as Telegram.
2. access websites or applications of similar concern with, or controlled by, the Islamic State, Al Qaeda or any other organisation practising or supporting radical Islam or terrorism.
1. The offender is to provide a list of all electronic devices to which he has access and which are capable of accessing the Internet and must notify his Community Corrections officer of any new device he acquires during the period of the Community Corrections Order.
2. The offender is to consent to inspection of his electronic devices by his Community Corrections officer and to provide any necessary password base or fingerprint identification to facilitate such inspection.
[4]
Endnotes
See Criminal Code 1995 (Cth), s 119.4.
R v Taleb (No 5) (Sentence) [2019] NSWSC 720.
See Veen v The Queen (No 2) (1988) 164 CLR 465 at 472-473; [1988] HCA 14 (Mason CJ, Brennan, Dawson and Toohey JJ).
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Decision last updated: 04 August 2022