[2017] VSCA 157
FL v R [2020] NSWCCA 114
HJ v R [2014] NSWCCA 21
IM v R (2019) 100 NSWLR 110
[2019] NSWCCA 107
Jinde Huang aka Liu v R [2018] NSWCCA 70
Source
Original judgment source is linked above.
Catchwords
[2019] NSWCCA 231
Benbrika v R (2010) 29 VR 593[2010] VSCA 281
BP v R [2010] NSWCCA 159[2017] VSCA 157
FL v R [2020] NSWCCA 114
HJ v R [2014] NSWCCA 21
IM v R (2019) 100 NSWLR 110[2019] NSWCCA 107
Jinde Huang aka Liu v R [2018] NSWCCA 70(2018) 272 A Crim R 266
JM v R [2012] NSWCCA 83(2012) 223 A Crim R 55
Khazaal v R (No. 2) [2013] NSWCCA 140(2013) 223 A Crim R 106
KT v R [2008] NSWCCA 51(2008) 182 A Crim R 571
Lodhi v R [2007] NSWCCA 360(2007) 179 A Crim R 470
McDowall v R [2019] NSWCCA 29
R (C'Wealth) v Elomar and Ors [2010] NSWSC 10(2010) 264 ALR 759
R v Alou (No.4) [2018] NSWSC 221[2016] EWCA Crim 568
R v Khalid and ors.[2017] NSWSC 1365
R v Lelikan (2019) 101 NSWLR 490[2019] NSWCCA 316
R v Lodhi [2006] NSWSC 691(2006) 199 FLR 364
R v Mastronardi [2000] NSWCCA 12(2000) 111 A Crim R 306
R v Touma [2008] NSWSC 1475
R v Tran (2002) 4 VR 457[2002] VSCA 52
Sharma v R [2017] NSWCCA 85
Xiao v R (2018) 96 NSWLR 1
Judgment (18 paragraphs)
[1]
9 A Crim R 470
McDowall v R [2019] NSWCCA 29
R (C'Wealth) v Elomar and Ors [2010] NSWSC 10; (2010) 264 ALR 759
R v Alou (No.4) [2018] NSWSC 221; (2018) 330 FLR 402
R v Amati [2019] NSWCCA 193
R v Barot [2007] EWCA Crim 1119
R v Ghazzawy [2017] NSWSC 474
R v Kahar [2016] 1 WLR 3156; [2016] EWCA Crim 568
R v Khalid and ors.[2017] NSWSC 1365
R v Lelikan (2019) 101 NSWLR 490; [2019] NSWCCA 316
R v Lodhi [2006] NSWSC 691; (2006) 199 FLR 364
R v Mastronardi [2000] NSWCCA 12; (2000) 111 A Crim R 306
R v Touma [2008] NSWSC 1475
R v Tran (2002) 4 VR 457; [2002] VSCA 52
Sharma v R [2017] NSWCCA 85
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
Category: Sentence
Parties: Regina - Crown
Youssef Uweinat - Offender
Representation: Counsel:
S Flood - Crown
N Steel - Offender
[2]
Solicitors:
Commonwealth Director of Public Prosecutions - Crown
Legal Aid NSW - Offender
File Number(s): 2019/00382534
Publication restriction: Nil
[3]
INTRODUCTION
Youssef Uweinat (the offender) pleaded guilty before the Local Court to the following offences:
1. being a member of an organisation, namely Islamic State, knowing that the organisation was a terrorist organisation (the membership offence); and
2. intentionally advocating the doing of a terrorist act or the commission of a terrorism offence, being reckless as to whether another person will engage in a terrorist act or commit a terrorism offence (the advocacy offence).
Each offence was committed between 5 June 2019 and 4 December 2019.
The membership offence is contrary to s 102.3(1) of the Criminal Code 1995 (Cth) (the Code) and carries a maximum penalty of 10 years imprisonment.
The advocacy offence is contrary to s 80.2C(1) of the Code and carries a maximum penalty of 5 years imprisonment.
[4]
The facts of the offending
The facts of the offending are set out in a statement of facts tendered by consent [1] which I have annexed to this judgment. I have considered a number of aspects of those facts below in the context of assessing the circumstances of the offending, its objective seriousness and the need for adequate punishment.
[5]
General principles in sentencing for terrorism-related offences
Before considering the specific circumstances of the present case, it is appropriate to set out a number of principles which apply to sentencing for terrorism-related offences. I acknowledge that, generally speaking, such principles have been developed in the context of sentencing for offences of greater gravity than those to which the present offender has pleaded guilty. However in my view, they necessarily remain of guidance in determining an appropriate sentence in the present case.
Firstly, the predominant considerations in sentencing an offender charged with a terrorism-related offence include protection of the community, punishment of the offender, denunciation of the offence, specific deterrence and general deterrence. [2] Where it is not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance. [3]
Secondly, a terrorist act, or a terrorism offence, involves conduct which is carried out with the intention of advancing a political, religious or ideological cause. [4] That is of significance in circumstances where the advocacy offence in the present case involved the offender advocating the doing of such an act, or the commission of such an offence.
Thirdly, the religious and ideological motivation of the offender is relevant to a consideration of the issue of community protection, as well as to an assessment of the objective gravity of the offending. [5] Even if the force of ideological or religious motivations are such that deterrence may not be effective, weight must still be given to the need for general deterrence, [6]
Fourthly, the depth and extent of the radicalisation of an offender, as demonstrated by (for example) the possession of extremist material or the communication of extremist views to others, is relevant to the assessment of the objective seriousness of the offending, and will be a significant factor when considering rehabilitation and dangerousness. [7]
Fifthly, the objective seriousness of a terrorism-related offence may be affected by the extent to which the offender has been responsible for indoctrinating, or attempting to indoctrinate, others, and the vulnerability of those individuals. [8]
Sixthly, because the law recognises that immaturity can be a contributing factor, youth may be relevant to an assessment of an offender's moral culpability. [9] However, in circumstances where there is an absence of any causal link between an offender's age and the criminal conduct, and where the offending is serious, these principles must be appropriately moderated. [10]
[6]
Statutory considerations on sentence
Section 16A of the Crimes Act 1914 (Cth) (the Act) sets out a number of factors which, to the extent that they are relevant and known, must be taken into account by the Court when sentencing a Federal offender. Those factors are both objective and subjective. As discussed further below, the offender has a number of subjective considerations in his favour. In assessing those considerations, it is necessary to remain mindful of the fact that a subjective case, no matter how strong, cannot result in the imposition of a sentence which is disproportionate to the seriousness of the offending. [18]
[7]
The nature and circumstances of the offences - s 16A(2)(a)
[8]
The need for adequate punishment - s 16A(2)(k)
A consideration of all of these factors encompasses a requirement to undertake an assessment of the objective seriousness of the offending, such assessment being an essential component of the sentencing process. I am not obliged to make that assessment by placing the offending at a particular position on a notional scale of objective seriousness. [19] What is required is an identification of the facts and circumstances of the offending. [20]
I turn firstly to the membership offence.
The offender was, for a period of 5 months, a member of Islamic State (IS). IS is a prescribed terrorist organisation. It is a group which adheres to an extremist ideology, and to a corresponding extremist interpretation of Islam which is anti-western, which promotes sectarian violence, and which targets those who do not agree with its interpretations, labelling such persons as "infidels" and "apostates". Since its formation, IS has focused on capturing and consolidating its control over areas of Iraq and Syria. [21]
IS is regarded as one of the world's deadliest and most active terrorist organisations. It conducts daily attacks on security forces and civilians in Iraq and Syria, as well as against rival opposition groups. It also inspires, encourages, enables and directs its activities internationally. Such activities range from attacks with knives, vehicles or small arms, to complex and co-ordinated attacks with the use of firearms and explosives. Attacks which have been either claimed by, or which have been reliably attributed to, IS, include attacks carried out in Baghdad, Istanbul, Berlin, Nice, Orlando and Paris. [22] The fact that this is so serves as some indication of the geographical reach of IS and its extremist activities. It also demonstrates that as an organisation, IS is not simply "a ragtag collection of malcontents whose commitment to terror never advances further than a conception that one day, some time, they will undertake a terrorist act of as yet undetermined nature and scope". Rather, it is an organisation "with a proven record of committing the worst terrorist attacks imaginable". [23] That the offender was an admitted member of such an organisation is, of itself, significant and reflects the objective seriousness of his offending.
I accept that the offender's membership of IS was in the nature of an informal arrangement. I also accept that he did not occupy any position of authority or leadership within IS, and that he has now renounced his membership. [24] These factors were explained in his evidence: [25]
Q. And just in terms of that, on what basis do you admit that you're a member, or were a member of IS?
A. I was a member by pledging my allegiance to IS.
Q. And did you do that to any particular person, or was it any formal process, or how did that occur?
A. No, it wasn't a formal process. I seen it somewhere online, and I copied and pasted it on to my channel. Yes, so it was a typed up pledge of allegiance, non verbal, and it wasn't like a formal thing.
Q. And in some of your conversations you use the expression "we" when referring in conversation, referring to Islamic State?
A. Yeah.
Q. And was it the situation that, even though there had been no formal way that you're a member, you considered yourself a member, or would be a further legal requirement?
A. Correct, I did consider myself a member, yeah.
…….
Q. And how do you feel now about your membership and your advocacy conduct?
A. Regards to the membership, I've completely renounced my membership of IS or any other terrorist organisation.
[9]
Contrition - 16A(2)(f)
In the course of giving sworn evidence in the sentence proceedings, the offender read a letter which was separately tendered [51] and which was in the following terms: [52]
I understand the seriousness of my offending and the impact it has had, not only on myself, friends and family but also on all those who were exposed to my online posts. At the time I was young and naive, and thought that the Islamic State were fighting for a just cause. I now know that they follow a false, extreme and barbaric interpretation of the Islamic faith, one that I do not believe nor support.
I believe I have strong prospects for rehabilitation, with ongoing support from friends, family and the community. I want to put this terrible experience behind me.
Upon my release from custody I wish to help young Australians turn away from extreme ideology and on to our mainstream and moderate belief. I truly am embarrassed and deeply remorseful for my actions. I hope I can earn Australians' forgiveness and in time their trust.
Thank you.
The contrition which was expressed in that letter, about which the offender was not cross-examined, was consistent with observations of Dr Seidler which included the following: [53]
[The offender] expressed regret in relation to his offending, commenting that he is aware that his actions were 'wrong' and that 'everything [he] shared or said was a lie' and could have had an adverse impact on those he shared the material with, including distressing them or encouraging them to have extremist views and facilitating the radicalisation process. Further to this, [the offender] discussed the adverse impact of his offending on his family.
The offender also read an affidavit of Ahmed Kilani, a Muslim Prison Chaplain, of 10 August 2021, in which Mr Kilani said: [54]
He is full of regret for his past actions and beliefs. His process of disengagement from these beliefs appears to have started prior to his arrest. He accepts complete responsibility for his actions and now fully understands that the Islamic beliefs he held prior to his arrest are completely wrong and dangerous. He fully renounces his past views and affiliation with Islamic State.
In the course of giving evidence, Mr Kilani said that the offender's expressions of regret were a 'consistent message' throughout all of their interactions. [55] Sworn evidence given by the offender's mother [56] and his stepfather [57] was to similar effect, as were the contents a number of the testimonials tendered on the offender's behalf. [58]
[10]
The pleas of guilty - s16A(2)(g)
Section 16A(2)(g) requires the Court to take into account the offender's pleas of guilty, together with the timing of those pleas and the degree to which they have resulted in any benefit to the community, or any victim of, or witness to, the offending. The Court may apply a discount to reflect the utilitarian value of such pleas. [59] Their timing will determine, to a large extent, the level of such discount. [60] It was submitted on behalf of the offender that in circumstances where the pleas of guilty were entered in the Local Court, the appropriate discount was one of 25%. The Crown did not cavil with that submission and in my view that discount is appropriate.
[11]
Specific deterrence - s16A(2)(j)
I have already expressed the conclusion that I am satisfied that the offender is genuinely contrite. For the reasons expressed further below, I am also satisfied that his prospects of rehabilitation are favourable. In these circumstances, although personal deterrence still has some role to play on sentence, its significance is reduced.
[12]
General deterrence - s16A(2)(ja)
Subject to my discussion below regarding the offender's age and its effect on sentence, general deterrence remains a predominant consideration. That arises, in part, from the fact that terrorism it is an increasing evil not only in Australia, but around the world. [61]
[13]
Character, antecedents, age, means and physical or mental condition of the offender - s16A(2)(m)
The offender is currently 23 years of age, and was 21 years of age at the time of his offending. His criminal history is limited to an offence of common assault in 2017 for which he was given a 12 month bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). A number of testimonials were tendered on the offender's behalf, the authors of which variously described him as "cheerful and caring", "sincere" and "kind". [62] Such appellations obviously describe the offender's behaviour outside of his offending.
In terms of the offender's background, I draw the following summary from the report of Dr Seidler. [63]
The offender is the only child of his natural parents, whose relationship broke down when he was very young. The offender's natural father has played little role in his life. He was raised by his mother and stepfather and described his childhood, and his development, as "normal".
The offender attended two different primary schools (as a consequence of a family relocation), and one secondary school. He told Ms Seidler that he was not a particularly academically-inclined student, and that he did not achieve well, to the point where he often failed subjects. He left school in Year 10. In doing so, he apparently rejected a recommendation that he repeat that year, although there is a reference in one of the testimonials to his having completed Year 10 at TAFE. [64] The offender told Ms Seidler that his behaviour at school was poor, and resulted in frequent suspensions for misbehaviour.
After leaving school, the offender commenced a plumbing apprenticeship which he was pursing at the time of his arrest. He had worked in a number of different plumbing roles, but was unemployed for periods of several months at a time. He reported to Ms Seidler that he had been terminated from his employment on two separate occasions.
The offender told Ms Seidler that he has been in good health for most of his life. He said he first smoked cannabis at about the age of 14, following which he went through what he described as binge periods of cannabis use. However, he denied actual dependence on cannabis, and stated that he had discontinued using it in the period leading up to his arrest, which coincided with disconnecting from a number of his peers who were regular users of that drug. The offender told Ms Seidler that he first used cocaine at the age of 17 and that cocaine was his "drug of choice", to the point where he would use it every weekend, with such use increasing during "binge" periods. The offender said that his use of cocaine was motivated by a desire to have fun with his friends. He denied the use of any other illicit substances, be it on an experimental basis or otherwise.
[14]
The offender's prospects of rehabilitation - s16A(2)(n)
In his letter to the Court the offender expressed a belief that he had "strong prospects for rehabilitation". In his oral evidence, he unequivocally stated that he had renounced his membership of IS, and he acknowledged that "everything [he] said" (i.e. when offending) was "false and wrong". [72] He made similar statements to Dr Seidler. [73]
In his evidence in chief, the offender was asked: [74]
Q. And what has prompted that change in your position?
A. Well, at the time I believed what I believed because I didn't have much knowledge of my religion, I didn't really know much, I was still new. I would say I was, I was very much influenced by the IS propaganda, and led to believe that they were doing the right thing. The reason my views have changed is because since then I've done my own research, instead of just blindly following people. I've spoken to, I've spoken to people who have taught me the true meaning of Islam, and I have read the Quran, and I've understood it properly, whereas IS, they only take little sections from here and there, and mix it together to try to justify what they do, but yeah, since then I've read everything and understood everything.
The offender's evidence in this regard was not the subject of any direct challenge in cross-examination. That does not, of itself, lead to the inevitable conclusion that the offender's evidence as to his stated change of position must be accepted. However, the Crown did not advance any reason which would cause me to reject it. [75] I do accept the evidence of the offender in these respects.
I have previously noted [76] that where it is not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance. The corollary of that proposition must be that where the Court is so satisfied, some allowance should be made for that fact because the need for protection of the community is to some extent reduced. [77] I have proceeded on that basis in sentencing the offender.
In terms of his progress in custody, the offender confirmed that he is participating in remedial programs and that he is open to continuing to do so. [78] His unchallenged evidence [79] was that he had been moved to a less restrictive section of the gaol because of "following the rules and compliance with staff". A series of case notes formed part of the evidence [80] which, generally speaking, support a conclusion that the offender has already made some meaningful progress in terms of his rehabilitation. For example, a note of 18 December 2020 was in the following terms:
[The offender] has successfully completed the EQUIPS Program. He appears to have gained some insight into his behaviour and understands the different strategies he can use to reduce his levels of emotions when there is a trigger such as physical exercise, listening to music and being patient. He appears to want to change and seems to be making positive improvements to make these changes happen by mindfulness and breathing exercises. [The offender] would like to finish off his plumbing course when he is released from custody and advised of some of his positive supports as his stepfather and one of his uncles. [The offender] was a positive member of the group and would always participate in any activity or discussion. A certificate of completion has been awarded.
[15]
The offender's conditions of custody
Although s 16A sets out a series of mandatory considerations which the Court must take into account, the section does not constitute an exhaustive list of matters which are relevant on sentence. One matter which is relevant, for which s 16A makes no specific provision, is the offender's conditions of custody. Those conditions, which are obviously onerous, are set out in the affidavits of Allyson Brown of 27 August 2021 and 15 September 2021.
Ms Brown gave oral evidence regarding periods of time in which there are "lockdowns" of the custodial facility in which the offender is held. Her evidence was that there were, at one point, an average of five lockdowns per month, [96] although calculations made by the offender himself suggest that the figure might be higher. There are also some differing views on the evidence as to what constitutes a "lockdown". It is sufficient for present purposes to note three matters regarding the offender's conditions of custody. Firstly, the conditions are, in an overall sense, onerous, consistent with the high risk facility in which he is held. Secondly, they are rendered more so by the frequency of lockdowns which, on any interpretation, further restrict the offender's movements. Thirdly, the offender's conditions of custody are rendered more onerous by the current pandemic, one of the effects of which is to restrict personal visits. I have taken all of these factors into account.
[16]
The structure of the sentences
There is considerable overlap between the membership offence and the advocacy offence. They occurred over the same period of time and had their respective origins in the same extreme ideology. However, being a member of a terrorist organisation is one thing. Advocating the commission of acts of terrorism, and terrorism offences, is quite another. In these circumstances, counsel for the offender properly acknowledged that it would be open to me to partially accumulate the sentences in order to reflect the different aspects of the two offences. However he submitted, and I accept, that having regard to the principle of totality, a substantial degree of concurrency is nevertheless warranted.
[17]
ORDERS
I make the following orders:
1. The offender is convicted of both offences.
2. In respect of the offence of intentionally advocating the doing of a terrorist act contrary to s 80.2C(1) of the Criminal Code 1995 (Cth) the offender is sentenced to 1 year and 8 months imprisonment commencing on 4 December 2019 and expiring on 3 August 2021.
3. In respect of the offence of being a member of an organisation knowing that organisation was a terrorist organisation, contrary to s 102.3(1) of the Criminal Code 1995 (Cth) the offender is sentenced to 3 years and 8 months imprisonment commencing on 4 March 2020 and expiring on 3 November 2023.
4. The total effective sentence is one of 3 years and 11 months imprisonment, commencing on 4 December 2019 and expiring on 3 November 2023.
5. I impose a single non-parole period of 2 years and 11 months imprisonment commencing on 4 December 2019 and expiring on 3 November 2022.
6. In light of the fact that the offence contrary to s 102.3(1) carries a maximum penalty of 10 years imprisonment, I warn the offender, pursuant to s 105A.23 of the Code, that an application may be made under Division 105A requiring him to be detained in a prison after the end of his sentence.
Statement of Facts (5976131, pdf)
[18]
Endnotes
Exhibit A; Tab 2.
R v Ghazzawy [2017] NSWSC 474 at [46]; R v Alou (No.4) [2018] NSWSC 221; (2018) 330 FLR 402 (Alou sentence); Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 (Lodhi appeal); Director of Public Prosecutions (Cth) v MHK (A Pseudonym) (No 1) (2017) 52 VR 272; [2017] VSCA 157 at [54].
R v Lodhi [2006] NSWSC 691 at [82] - [83]; [88] (Lodhi sentence); R (C'Wealth) v Elomar and Ors [2010] NSWSC 10 at [93]; (2010) 264 ALR 759; Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 at [591].
Lodhi appeal at [88] per Spigelman CJ, Barr and Price JJ agreeing).
Alou sentence at [167] citing R v Kahar [2016] 1 WLR 3156; [2016] EWCA Crim 568 at [19].
Lodhi sentence at [91] - [92]; Lodhi appeal at [87] - [88]; R v Barot [2007] EWCA Crim 1119 at [45]; Director of Public Prosecutions (Cth) v Fattal [2013] VSCA 276 at [169]; MHK at [52] - [53].
Kahar at [19]; R v Khalid and ors. [2017] NSWSC 1365 at [25]; Alou sentence at [171].
Kahar at [19]; Khalid and ors. at [25]; Alou sentence at [171].
IM v R (2019) 100 NSWLR 110; [2019] NSWCCA 107 at [54].
Alou v R (2019) 101 NSWLR 319; [2019] NSWCCA 231 (Alou appeal).
Alou sentence at [166]; Lodhi Sentence at [89]; Lodhi appeal at [274]; Khazaal v R (No. 2) [2013] NSWCCA 140 at [40] and [42]; (2013) 223 A Crim R 106; Director of Public Prosecutions (Cth) v Besim [2017] VSCA 158 at [112] - [113].
R v Lelikan (2019) 101 NSWLR 490; [2019] NSWCCA 316 at [52].
Lelikan at [53].
Lelikan at [128].
Benbrika at [555]-[556].
Lelikan at [125].
Lelikan at [128].
R v Amati [2019] NSWCCA 193 at [120] and the authorities cited therein.
Sharma v R [2017] NSWCCA 85 at [63] per R A Hulme J (Beazley P and Walton J agreeing), cited in McDowall v R [2019] NSWCCA 29 at [35] per Adamson J (Hoeben CJ at CL and Schmidt J agreeing).
FL v R [2020] NSWCCA 114 at [59] - [60] per Wilson J (R A Hulme and Hamill JJ agreeing).
Attachment B to the Explanatory Statement specifying IS as a terrorist organisation (Attachment B) at Exhibit A Tab 8.
Finally, subjective circumstances and mitigating factors, including rehabilitation, are to be given less weight than might otherwise be the case. [11]
A number of additional, and more specific, principles have developed with respect to sentencing for an offence contrary to s 102.3(1) of the Code, (i.e. the membership offence). They include the following.
Firstly, the concept of membership of a terrorist organisation comprehends a broad range of conduct, extending from charismatic leadership to informal participation. [12]
Secondly, the fact that membership of a terrorist organisation, in and of itself, is criminalised, indicates that the notion of membership must be taken to assume a basal level of, and adherence to, the tenets of the particular organisation in question. [13]
Thirdly, the length of membership of the terrorist organisation will be a relevant consideration on sentence. [14]
Fourthly, the history, nature, conduct and philosophies of the terrorist organisation are relevant in assessing the objective seriousness of the offending, as well as the offender's moral culpability. [15]
Fifthly, where (in a geographical sense) the terrorist organisation's past activities have occurred is relevant in assessing objective seriousness. [16]
Finally, moral culpability for a membership offence is greater if the offender joins the organisation and maintains membership, knowing of the organisation's objectives, and the method by which it seeks to achieve them. [17]
All of that said, the fact of the offender's membership assumes, without more, a basal adherence to the tenets of IS. In the present case, that assumption is confirmed by the fact that during the period of his membership, the offender's conduct reflected an unbridled commitment to, and an unequivocal embracement of, the philosophies of IS, its objectives, and the violent and unlawful methods by which it seeks to achieve them. That this is so is typified by examples of the offender's conduct.
On 7 August 2019 the offender created footage featuring a young child in a school uniform wearing the offender's black and white balaclava and displaying the finger of Tawheed, a gesture which is an integral part of IS symbology, and which serves as an affirmation of commitment to the ideals of IS. [26] In that footage the child and the offender had the following exchange: [27]
Offender: Exalt Allah.
Child: Allah is the Greatest.
Offender: The Islamic State.
Child: It will remain.
Offender: The Islamic State.
Child: It will remain.
On another occasion, the offender saved an image of his face wrapped in a shemagh, which is a form of head covering worn by jihadists (amongst others). [28] The offender, displaying the finger of Tawheed, was with a young person who was well known to him, and who was wearing his (i.e. the offender's) balaclava. An image of the IS flag was superimposed onto the young person's forehead. [29]
The Crown cross-examined the offender generally in relation to the involvement of young persons in his offending: [30]
Q. Can I ask you a couple of questions and I won't take you to the specific paragraphs but it's clear from the agreed facts that on occasions you involved at least one young child in the production of videos that you were making, correct?
A. Yes.
Q. And at least one of those videos glorified Islamic State, correct?
A. Yes.
Q. And how do you feel about having done that?
A. Stupid. I regret it.
Q. You think it might have had some influence even on what that young child might have been thinking?
A. Yes.
Q. You think that it could impact, and I'm not saying it does that necessarily, but do you think that that sort of behaviour would impact well on developing extremism in people?
A. It can, yes.
…..
Q. You knew that he was younger than you?
A. Yes.
Q. Is that also the case in relation to young person 2, that you knew he was younger than you?
A. Yes.
Q. Did you know that both of them were under 18?
A. Yes.
Q. Yet you were still prepared to effectively indoctrinate them with extreme beliefs?
A. Sorry what does indoctrinate mean?
Q. You were prepared to send them material that could suggest to them that it was okay to behave in the sorts of way that Islamic State suggested they should?
A. Yes, that's correct.
Categorising the involvement of young persons in this way as "stupid", particularly in circumstances where the offender was aware of the age of those persons, tends to grossly understate its significance. The fact that the offender involved those young persons in this way increases the objective seriousness of his offending.
Moreover, it is clear from the offender's interview with police following his arrest that his membership of IS was forged, and maintained, in circumstances where he knew that IS was a terrorist organisation. In all of these circumstances, the offender's assertions to police following his arrest that he was a "moderate Muslim" who "did not support extremist organisations or beliefs" [31] is one that I am not able to accept. It is entirely at odds with his membership of IS over the period of the offending, as well as being at odds with the depth of his demonstrated commitment to the ideals and objectives of IS, and the fervour with which he expressed it.
I turn to consider the advocacy offence.
The advocacy offence was also committed over a period of five months, during which the offender advocated the commission of three different terrorism offences, namely those of:
1. entering a foreign country with the intention of engaging in hostile activities;
2. being a member of IS; and
3. engaging in a terrorist act.
Generally speaking, during the period of the advocacy offence the offender used various social media platforms to promote and encourage the commission of terrorism offences, in circumstances where the offences in (i) and (iii) above carry maximum penalties of life imprisonment.
Once again, reference to particular aspects of the facts typifies the general nature of the offending.
On 12 July 2019 the offender engaged in a conversation with a young person in the course of which he sent three audio messages in the following terms: [32]
… Randomly we only kill the ones that are fighting against us and trying to stop um trying to stop us implementing the Sharia. And this whole war, as well as this whole war started from the Kuffar [believers], they started it because um the Muslims which protesting say saying they wanted new government they want to implement Sharia and Bashar started bombing em and whatever so they started the war with us…… And we don't just kill all the Kuffars [disbelieve]… umm .. because Allah said in the Quran kill them wherever you find them but if you, but if they ask for like umm …. if they surrender or whatever, then leave them and do not tran … and like do not yanneh [I mean], what's that word? transgress or whatever against him because Allah doesn't like umm, the people that transgress or whatever…. but anyways just tell him umm [indistinct] [sounds like somebody] hasn't replied.
On 12 August 2019, the offender posted the following to a chat group which included two young persons: [33]
Reasons for jihad
In order that the disbelievers do not dominate.
Due to the scarcity of men.
Fear of the hellfire
Fulfilling the duty of jihad and responding to the call of the Lord.
Following in the footsteps of the pious predecessors.
Establishing a solid base for Islam.
Protecting those who are oppressed in the land.
Hoping for martyrdom.
A shield for the ummah, and a means of lifting disgrace off of them.
Protecting the dignity of the ummah, and repelling the conspiracies of its enemies.
Preservation of the earth and protection from corruption.
Security of Islamic places of worship.
Protection of the ummah from punishment, disfiguration and displacement.
Prosperity of the ummah, and surplus of its resources.
Jihad is the highest peak of Islam.
Jihad is the most excellent form of worship and by means of it the Muslim can reach the highest of ranks.
On 24 October 2019, the offender shared a martyrdom image of himself with accompanying text in the following terms: [34]
JANNAH [paradise] IS OUR GOAL, THE PROPHET IS OUR LEADER, THE QURAN IS OUR LAW, JIHAD IS OUR WAY AND DYING IN THE WAY OF ALLAH IS OUR HIGHEST INSPIRATION
In the course of cross-examination about this material, the offender was asked: [35]
Q. And it's the case, isn't it, Mr Uweinat, that what you're sending a message about there is that martyrdom is something that is desirable, correct?
A. At the time, yes, that's what I believed, yeah.
Q. And this was an image of you, correct?
A. Yes. Yes.
Q. So, at the very least, at that point in time, were you sending a message that you were prepared to die?
A. No.
Q. You would agree, though, that it was certainly a message that people should be prepared to die for Allah, correct?
A. Yes.
On 2 November 2019 the offender used a social media platform to edit an image of himself displaying the finger of Tawheed, with accompanying text in the following terms: [36]
Alhamdulillah [Praise Allah] about to go on Istishhadi [martyrdom]. I thank Allah the most high for this chance. To everyone who stayed behind; I urge you to continue to strive in your jihad [fight in the cause of Allah] and do not stop until you place the flag of Tawheed [monotheism] over the White House! I ask Allah to keep you steadfast on the religion of Haqq [truth] and may he grant you victory. BAQIYAH BI'INDILLAH [IT WILL REMAIN IN THE WILL OF ALLAH]
In cross-examination, the offender accepted that he had created that image, [37] before the Crown asked: [38]
Q. And, again, I suggest to you that what you're saying in the text is that you're going to go off and participate in a martyrdom exercise in some way, in other words, that you were prepared to kill yourself for the cause. Do you agree or disagree with that?
A. That's what the image says, yes.
Q. Well, were you just communicating that message even though it wasn't true, or at that point in time was that really your belief?
A. No, it wasn't my belief.
Q. But you were prepared to create, and have available to other people an image that certainly sent that message, that it was acceptable to participate in martyrdom exercises, correct?
A. Yes.
On 6 September 2019, the offender's electronic device contained footage of him with his face wrapped in a shemagh. Speaking towards the camera whilst displaying the finger of Tawheed, and with a nasheed (an Arabic chant) [39] playing in the background, the offender said: [40]
Wallah [I swear by Allah] the Islamic State has been established and we will not stop fighting in the cause of Allah [Exalted and sublime is he] until we have the head of every tyrant until we once again raise the banner of Tawheed and bring glory dignity of his deen [to this religion].
This footage was shared with, and was later found on the device of, a young person. [41] When cross-examined, the offender agreed that he had created that footage, [42] before being asked: [43]
Q. And it's the case, isn't it, again that what you're communicating there is the idea of committing terrorist acts anywhere around the world?
A. Yes, but I had seen someone say that in a video game. I probably thought that person was saying.
Q. So are you again saying whilst it wasn't your belief that that should occur, you were prepared to repeat it and communicate it to other people?
A. Yes
It is also significant that in advocating acts of terrorism, the offender did so by specific reference to Australia.
For example, on 3 August 2019 an image was saved to another person's device depicting the offender standing in a utility displaying the finger of Tawheed. An IS flag was overlayed on the image, so as to give the appearance that it was painted on the side of the vehicle. Overlaying that image was a graphic bearing the word "Canberra", and depicting Parliament House flying a black flag and the words "ready to take over or become green birds". The image was taken in Ainslie, a suburb of the Australian Capital Territory. [44] Having agreed in cross-examination that he created that image, [45] the offender was asked: [46]
Q And, again, what's being discussed, in the text put on that image, is the idea of being involved in a martyrdom exercise, that's what the reference to green birds is all about?
A. Yes.
Q. And the image clearly communicates that this was a martyrdom exercise that could occur in Australia, in Canberra, correct?
A. Correct.
Q. And, again, during that period of time did you think it was acceptable for terrorist acts to be undertaken in Australia?
A. No. I never, never supported terrorist attacks in Australia.
Q. But you were prepared to create an image that would communicate that to other people?
A. Yes.
The offender also used a social media platform to send an image of the Sydney Town Hall with a watermarked black and white shahada flag on top of the building. [47] On another occasion, he saved and edited an image of a watermarked logo of the IS flag on the Tower of the Anzac Bridge in Sydney. [48]
It has previously been observed, in the context of terrorism-related offending, that Australia is, in general terms, a very safe country, and one which is far removed from the turmoil and gross disturbances that beset so many other parts of the world. [49] In reference to the fact that he had told Ms Seidler, whose report I have discussed further below, that he liked living in Australia, the offender was asked in cross-examination: [50]
Q. What is it you like about Australia?
A. The freedoms that, you know, you can move around without, you know, people. It's safe, you know, if you disagree with something, you know, you can vote to have the Government changed or stuff like that. It's not a dictatorship.
Q. And now reflecting back how does terrorist activity fit in with those sorts of freedoms and choices that people can make?
A. It takes all that stuff away.
In committing the advocacy offence, the offender acted in a way which had the potential to threaten the very freedom which characterises the Australian way of life, a way of life which he himself cited in his evidence as one of the advantages enjoyed by those who live in this country.
Consistent with his plea, I am satisfied that the offender advocated the commission of terrorist acts and terrorism offences over a consistent period of approximately 5 months. I am unable to accept his assertion that at the time of his offending he did not support the commission of terrorist acts. I am also unable to accept his assertion that he never supported terrorist acts in Australia. The evidence generally, and his references to Australian landmarks specifically, is overwhelmingly to the contrary. His evidence in those two respects is also entirely at odds with the consistency and fervour with which he acted, and the express terms of the material which he disseminated. For the reasons previously expressed, his conduct is rendered objectively more serious by his admission that he engaged in it in the knowledge that he was indoctrinating those younger than him with extremist beliefs.
In all of the circumstances I am satisfied that the offender is genuinely contrite for his offending.
In terms of his religious beliefs, the offender told Ms Seidler that he was raised to practice the Islamic faith. He said that when he was about 14 years of age he had met a number of people who were "street preaching" in his local area, and with whom he had reconnected (by chance) in around February 2019, a time which marked the commencement of his present offending. He said that up until February 2019, religion had not been a part of his life. His history to Ms Seidler included the following: [65]
[The offender] acknowledged having become involved in an antisocial peer culture through his adolescence and [he] met these people through his local area apparently. Within this context, [the offender] noted that he had very few, if any, friends that were engaged in a prosocial routine or activities. In the months prior to his offending and arrest, this shifted as [the offender] became more involved in and invested with a peer group of people also espousing a strongly religious, and, in fact, extremist, ideology and this will be discussed further below.
Ms Seidler went on to say: [66]
[The offender] reflected that at the time he met these people, he was 'over the drugs and partying', having recognised that this behaviour was not having any positive impact on him and his trajectory and therefore, [the offender] suggested that he was already considering making changes to his lifestyle and behaviour at that time. This left him open to the preachings of these people as a 'recipe' for making changes in his life.
[The offender] commented that these new social connections invited him to become more interested and therefore, invested in his religion. It was at this time that [the offender] initiated his own research into Islam, which also involved attending [the] Mosque more, attending lectures and connecting with others online via social media platforms. [The offender] acknowledged that his commitment to the Islamic faith increased from this time and this is also when he began praying on a regular basis. [The offender] told me that he has maintained this since.
[The offender] stated that he is not prepared to die for his religion.
[The offender] reported that the aforementioned new associates that he became more involved with in early 2019 exposed him to extremist ideology and content. Some of these people are well-known to national security authorities and influenced [the offender's] thinking, in addition to encouraging his investment in learning more about their ideology.
In the context of these influences, [the offender] claimed that he came to believe that violence and terrorist action were justified on religious grounds, as a result of the Quran's teachings to protect Muslims in the face of the atrocities that were being metered [sic] out on these people internationally. [The offender] noted that he was exposed to media content depicting people, including children, being killed and this content made him 'angry' and 'upset'.
She continued: [67]
[The offender] reported to have been raised to follow the Muslim faith, although this was flexible for him, as was his cultural identity and it is clear that [the offender] developed a connection to this country and an Australian national identity, which he feels generally positive about. However, this began to change in or around 2019 and in the context of tiring of his hedonistic routine and seeking a change that gave [the offender] a different way to live. It was at this vulnerable period in [the offender's] life that he developed some association with others who exposed him to an extremist and violent Islamic interpretation. Thereafter, [the offender] was increasingly exposed to extremist ideology, both through his own research and activity but also the connections he was establishing with others, including through attending lectures and [the] Mosque. He described a process of brainwashing, whereby [the offender] became radicalised in his thinking, he believed that violent extremism was justified on religious grounds and he felt a perceived obligation to disseminate information about this ideology to others. It was this obligation that resulted in [the offender's] offending behaviour. To his credit however, [the offender] appears to have experienced a change in his thinking and ideology, such that he now actively distances himself from extremist ideology and groups and considers the beliefs and actions of such organisations as immoral, inappropriate and justifiably illegal.
The offender did not specifically address the precise circumstances in which he became involved in the offending, be it in his statement or in his oral evidence. He did however, make reference to "just blindly following people" and the "mistakes of blindly following people, listening to propaganda and not doing your own research or investigation into what they say, or your religion". [68] I interpret those references as reflecting, at least in part, the offender's assessment of some of the circumstances in which he came to offend.
Ms Seidler concluded: [69]
There are no obvious mental health concerns in this case and although [the offender] impresses as a low functioning person intellectually, there is no evidence of gross neurocognitive impairment that would aid in an understanding of this case. In terms of mitigation, it is noted that [the offender's] radicalisation occurred at a time when he was vulnerable and seeking direction and change. Further to this, the period of his extremist ideology commitment was seemingly short lived. … [The offender] does not present with mental health concerns, nor is there a history of such on the basis of his account.
The various circumstances to which Ms Seidler referred, along with the offender's evidence and his age, necessitate a consideration of principles which apply to the sentencing of young offenders. I reviewed those principles in R v Khalid & Ors [70] and their essence may be summarised as follows.
In sentencing a young offender, considerations of general deterrence and principles of retribution will, in many cases, be of less significance than they would be when sentencing an adult for the same offence. Such an approach recognises the capacity for young people to reform, and to mould their character to conform to society's norms. In these circumstances, emphasis is placed on the need to provide an opportunity for rehabilitation. The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to the commission of an offence, and it is for that reason that an allowance will be made for an offender's youth, and not just his or her biological age. Where the maturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult.
However, that does not mean that considerations of general deterrence and retribution can be completely ignored in the present case. There remains a significant public interest in deterring anti-social conduct. The emphasis on rehabilitation when sentencing a young offender may be moderated when that offender conducts himself or herself in the way in which an adult might, or commits a crime of violence or one of considerable gravity. Retribution and deterrence cannot, in a serious case, give way entirely, or perhaps even substantially, to the interests of rehabilitation.
The evidence in the present case tends to support a conclusion that as a result of his age and his vulnerability, the offender was, to a degree, "drawn" into the offending by others. To that extent I am prepared to accept that his immaturity played a part in his offending and that is a factor which I have taken into account in accordance with the principles to which I have referred. However, it is necessary to again emphasise that considerations of general deterrence cannot be cast aside entirely in determining an appropriate sentence. As Sully J put it in R v Mastronardi, [71] youth, whether it is real, or merely comparative, or defined with a generous elasticity, is not a cloak of convenience behind which those who engage in criminal behaviour can shelter from the just consequences of their conduct.
A note of 23 March 2021 is in the following terms:
[The offender] has successfully completed the EQUIPS Addiction Program. He appears to have gained some insight into his behaviour and understands the different strategies he can use to reduce his levels of emotions when there is a trigger such as talking to trusting friend/family, spending time with family or going for a drive. He appears to want to change and seems to be making positive improvements to make these changes happen by being motivated to change by using strategies he gained from the program. He has also challenged his core beliefs and has started using positive measures to challenge the unhelpful thoughts and beliefs and acknowledges he needs to address his history of being in high risk situations and stop his partying to help him become a better person for his family, live a healthier lifestyle and feel better about himself. [The offender] was a positive influence in the group and pro-active in discussions which encouraged others to talk openly. A certificate of completion has been awarded.
The offender gave the following evidence as to his plans for his release: [81]
Q. …... And just in terms of when you're eventually released from custody. You understand that you're most probably likely to have supervision, and perhaps strict supervision?
A. Yes.
Q. And would you be willing to comply with all the supervision that's imposed upon you?
A. Yes I would.
Q. And what is the situation in terms of your plans post release, to where you would live or what you might be doing?
A. Well, just back with my parents where I was before my arrest, yeah, find a job, work, settle down, and yeah, try to forget all of this.
Q. Speaking to Dr Seidler, and also in your case notes previously, you've referred to wanting to perhaps assist other youth learn from your mistakes?
A. Yes.
Q. And what mistakes are those that you're talking about?
A. Mistakes of blindly following people, listening to propaganda and not doing your own research or investigation into what they say, or your religion.
Q. Knowing what you know now, do you think that there is a risk that you could fall back into extremist religion?
A. No.
This evidence was generally consistent with the offender's history to Dr Seidler, the veracity of which he confirmed on oath. [82] On the basis of that history, and whilst acknowledging the limited risk assessment tools which are available in respect of offending of this nature, Dr Seidler said the following: [83]
The primary risks in this case appear to have been [the offender's] vulnerability to adverse influence and indoctrination into an extremist ideology, which appears to have occurred at a time in his life when he was seeking change and difference. Therefore, rather than being representative of an enduring belief structure, [the offender's] radicalisation and extremist ideology appears to have been short lived in the context of a personal period of transition and the adverse influences that were around him at the time. As the situation for [the offender] has changed, it is likely that his risk would now be well managed. However, if this should change for [the offender] such that he began associating with people of concern, accessing identified proscribed content online or seeking to communicate or connect with others who espouse extremist beliefs, I would anticipate that his risk would increase in tangible terms (emphasis added).
Dr Seidler went onto express the following opinion: [84]
There is no indication that [the offender] continues to hold beliefs that support a violent and extremist Islamic interpretation. …… Given the apparent changes [the offender] has made since his arrest, coupled with the relatively short lived period during which [the offender] was indoctrinated, and his long-standing mainstream religious beliefs, I am of the view that [the offender] presents a strong prospect of rehabilitation and positive community reintegration. This is further supported by the apparent lack of entrenched antisocial attitudes, although [the offender] reportedly had an involvement in an antisocial peer culture through his adolescence.
On the basis of this assessment, it is recommended that the most salient area of need for [the offender] is in cementing his engagement in a prosocial and productive community that supports his connection with the mainstream Australian community, as well as reinforcing his separation from antisocial peers. Further to this, supporting [the offender's] connection with a mainstream Islamic faith will also be important in supporting the changes that [the offender] has made in his ideology since coming to prison. There is no other area of need identified in this case (emphasis added).
The offender's efforts towards rehabilitation are, and will continue to be, supported by those closest to him, including his mother, [85] his stepfather, [86] and Mr Kilani. [87] When asked whether he believed that the offender would engage in radical extremist behaviour again, the offender's stepfather said: [88]
A. Definitely, I don't believe that. I think he's learned his lesson. I'm sure he did because Youssef is a type of boy who loves his freedom, he loves his food, he loves his bed, he loves his cousins. I'm sure he realised what he's lost.
Mr Kilani was asked: [89]
Q. What about in terms of his prospects of rehabilitation, what do you say in relation it to that?
A. Yes, I think considering his young age and also the fact that he is very, very happy to engage and he doesn't just engage, he actually contemplates and acts upon, you know, those engagements in a quite positive manner; and the fact that he also realises that the views that he held were completely wrong and that he is willing to learn and improve. I think and because obviously he didn't have much knowledge to start off with, he has very strong prospects of being rehabilitated.
Mr Kilani confirmed that he would be happy to continue to work with the offender both in custody, as well as on release at the completion of his sentence. [90]
The testimonials which were tendered in the offender's case lend further support the conclusion that he will receive considerable assistance in his efforts towards rehabilitation when he is released. [91] There is also evidence that upon his release, the offender will have employment. [92] All of these matters point in a positive direction.
However, the italicised portions of Ms Seidler's report set out above incorporate an important qualification of her overall opinion. Clearly, Ms Seidler's view is that the offender's successful rehabilitation is dependent upon his not resuming associations with persons of extremist beliefs. With that in mind, it is a matter of concern that in May 2020, some 6 months following his arrest, police attended the correctional facility in which the offender was held and executed a number of search warrants, including a warrant on the cell that he occupied at the time. Three letters, addressed to the offender as "Abu Musa al-Maqdisi", were seized. The significance of those letters is twofold.
Firstly, "Abu Musa al-Maqdisi" is a name which was adopted by the offender to identify himself as the author of two martyrdom images. [93]
Secondly, and perhaps even more significantly, one of the inmates who sent the letters to the offender was Isaac El-Matari (El Matari), a known member of IS and a person who declared himself to be the Commander of IS in Australia, and the General Commander of the Sydney region. El Matari and the offender associated during the period of his offending. [94]
There is no indication of the content of this correspondence or the circumstances in which it came into existence. There is also no evidence of the nature and extent of any association that the offender may have had with El Matari in custody up to May 2020. It is noteworthy that El Matari is not one of those with whom the offender is presently approved to associate with in custody. [95]
These interactions occurred some 18 months ago. In the intervening period the offender has had, amongst other things, the benefit of Mr Kilani's intervention. However, such interactions highlight the fact that the threat to which Ms Seidler referred can reoccur. The offender's prospects of rehabilitation are largely dependent on his choosing not to associate with persons such as El Matari, who hold extremist beliefs, and at the hands of whom he is in danger of being influenced. The circumstances to which I have referred above cause me to express some note of caution, in what is an otherwise generally favourable assessment of the offender's prospects of rehabilitation.
Attachment B; Exhibit A; Tab 8.
Benbrika at [555].
T17.10 - T17.43.
T17.10 - T17.27.
Annexure B to the Statement of Facts.
Statement of Facts at [93].
Annexure B to the Statement of Facts.
Statement of Facts at [96].
T27.25 - T28.41.
Statement of Facts at [152].
Statement of Facts at [70].
Statement of Facts at [77].
Statement of Facts at [125].
T22.32 - T23.45.
Statement of Facts at [132].
T23.32 - T23.33.
T23.35 - T23.48.
Annexure B to the Statement of Facts.
Statement of Facts at [119].
Statement of Facts at [120].
T27.13 - T27.14.
T27.16 - T27.23.
Statement of Facts at [114] - [116].
T15.5 - T 25.7.
T25.9 - T25.24.
Statement of Facts at [110]
Statement of Facts at [117].
Lodhi sentence at [53].
T28.4 - T 29.5
As part of Exhibit 1.
T18.30 - T18.45.
[53]; Exhibit A, p.12.
[9]; Exhibit 1, p.68.
T38.46 - T39.21; T40.26 - T40.30.
T31.23 - T31.26.
T35.3 - T35.7.
See for example testimonial of Mariam Alchikh at p.83 of Exhibit 1; testimonial of Ayah Hawashin at p.89 of Exhibit 1.
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4.
Jinde Huang aka Liu v R [2018] NSWCCA 70 at [69]; (2018) 272 A Crim R 266.
Lodhi Sentence at [91].
AB 81 - 89.
Commencing at [10]; Exhibit 1, p.3.
AB 81.
[30]; Exhibit 1 p. 8.
[41] - [45]; Exhibit 1 pp. 10 -11.
[67]; Exhibit 1 pp. 15 - 16.
T20.38 - T20.30.
[87]; p.22 of Exhibit 1.
[2017] NSWSC 1365 at [109] - [113] citing KT v R [2008] NSWCCA 51 at [22] - [26],[75]; (2008) 182 A Crim R 571; BP v R [2010] NSWCCA 159 at [6]; (2010) 201 A Crim R 379; JM v R [2012] NSWCCA 83 at [108]; (2012) 223 A Crim R 55; R v Tran [2002] VSCA 52 at [14]; (2002) 4 VR 457; HJ v R [2014] NSWCCA 21 at [56].
[2000] NSWCCA 12 at [20]; (2000) 111 A Crim R 306.
T17.40 - T 17.46.
[47]-[48]; [67]; Exhibit 1 p 11; 16.
T17.48 - T18.9.
T49.14 - T 49.15.
At [7] above.
R v Touma [2008] NSWSC 1475 at [145].
T20.9 - T 20.17.
T19.44 - T20.7.
Exhibit A; Tab 6.
T20.19 - T20.43.
T19.10 - T 19.12.
[86]; p. 21 of Exhibit 1.
[87] - [88]; p.22 - 23 of Exhibit 1.
T31.32 - T32.6.
T34.41 - T34.47.
[10]; p.61 of Exhibit 1; T 42.9 - T 42.15.
T35.11 - T35.13.
T42.19 - T42.27.
T42.29 - T42.39.
See for example testimonial of Samar Yaghi at p.88 of Exhibit 1.
Exhibit 1 p 85.
Statement of Facts at [125]; [130]; [154].
Statement of Facts [13].
Affidavit of Allyson Brown of 27 August 2021 at [37]; Exhibit A, Tab 6.
T7.25 - T 7.28.
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: 11 October 2021