Solicitors:
Commonwealth Solicitor for Public Prosecutions (Crown)
Birchgrove Legal (Offender)
File Number(s): 2016/00065047
[2]
Judgment
Ahmad Saiyer Naizmand (the offender) appears for sentence after pleading guilty in the Local Court to five counts contravening a control order contrary to section 104.27 Criminal Code (Cth).
The maximum penalty for each offence is 5 years imprisonment and/or a fine of $54,000.
[3]
Facts
The parties presented an agreed Statement of Facts that can be summarised as follows.
The offender is now 22 years of age. He is married and prior to his arrest was working as a gyprocker.
On 1 July 2013 the offender's passport was cancelled due to security concerns.
On 6 August 2014 the offender flew from Australia to Malaysia and then to the United Arab Emirates using his brother's passport. He was detained in Dubai for passport irregularities and returned to Australia.
On 3 February 2015 he was convicted of using an Australian travel document that had not been issued to him. He was placed on a recognisance to be of good behaviour for 12 months.
On 5 March 2015 an interim control order pursuant to section 104.4 of the Criminal Code (Cth) was made in relation to the offender by his Honour Judge Driver of the Federal Circuit Court of Australia (the ICO). Judge Driver was satisfied on the balance of probabilities that the ICO was warranted on the basis that:
1. The offender was mentioned by name in an intercepted telephone call that concerned the threat of a terrorist act in Australia;
2. The offender was a member of a close-knit group of men in Sydney who strongly supported the ideology and activities of the proscribed terrorist organisation Islamic State;
3. The offender was closely connected with the activities and intentions of his brother-in-law, who had been charged with making funds available to a terrorist organisation, doing an act in preparation for or planning a terrorist act and conspiracy to commit murder;
4. The offender frequently communicated with the group about their shared extremist ideology, their support for Islamic State, and their desire to become martyrs. There was information to suggest that some of the communication was in code possibly relating to the sourcing of firearms;
5. The Controls set out in the ICO would substantially assist in preventing a terrorist act; and
6. That without the controls contained in the ICO that there was an unacceptably high risk that the offender or others would commit a terrorist act.
On 6 March 2015 the ICO was served on the offender and its contents were explained to him in accordance with the legislation.
Control 9 of the ICO prohibited the offender from using a telecommunications service and/or accessing the internet unless he was approved to do so by the Coordinator of the Joint Counter Terrorism Team (the Coordinator). On 3 July 2015 the Coordinator approved the use by the offender of a mobile telephone service subscribed in his name and approved him having to access the internet using the iPhone connected with that service. The Coordinator's approval was given in writing on condition of the other controls in the ICO, including those set out in Control 6.
Control 6 of the ICO relevantly provided that the offender was prohibited from:
acquiring, taking possession of, producing, accessing or supplying documentation (including in electronic form or electronic media), or attempting to acquire take possession of, produce, access or supply documentation (including in electronic form), which relate to any of the following:
explosives, explosive devices, initiation systems or firing devices; or
weapons or ammunition…
and
accessing, acquiring, possessing, accumulating, storing or distributing electronic media (including documentation in electronic form) depicting or describing any:
…
suicide attack;
bombing;
terrorist attack;
propaganda and promotional material for a terrorist organisation; or
activities of, or associated with, the Islamic State, being the organisation listed pursuant to the Criminal Code (Terrorist Organisation - Islamic State) Regulation 2014 (Cth).
On 30 November 2015 Judge Driver made a final control order by for a period of 12 months from the date of service of the interim control order being 6 March 2015 (the Control Order). On 1 December 2015 the Control Order was served on the offender and its contents were explained to him in accordance with the legislation.
Each of the contraventions involved the offender accessing videos on YouTube. Each video consisted of a slideshow of images with a soundtrack of a nasheed. A nasheed is a chant or musical form of Arabic poetry. "Anasheed jihadiyya" or jihadist nasheeds are sometimes composed or used by extremists to motivate people to commit acts of violence.
[4]
Contravention 1 - Access to "My brother you are free"
At about 6.46pm on 9 January 2016 the offender accessed a preview page on the YouTube website using his the iPhone for a video entitled "My brother, you are free".
The video was 6 minutes and 25 seconds in length. The nasheed was composed by in 1966. The nasheed makes reference to the extermination of the enemies of darkness, the taking up of weapons, the holding up of the flag, chopping off the heads of snakes, fighting, martyrdom and blood. The still images depict, inter alia, a bloodied hand, assault rifles, ammunition, a flick knife and the Islamic State flag.
The imagery, audio and subtitles of the video advocate terrorist attacks and is propaganda or promotional material for Islamic State.
Between about 6.47pm and 6.48pm on 9 January 2016, the offender played part of the video on his iPhone.
Between about 5.22am and 5.23am on 10 January 2016, the offender played part of the video on his iPhone. At about 5.24am the offender accessed the preview page for the video.
At about 2.29pm on 11 January 2016 the offender accessed part of the video on his iPhone.
Between about 7.46pm and 7.53pm 11 January 2016 the offender watched the video in its entirety on his iPhone. The video includes a still image of a male dressed in camouflage holding up the Islamic State flag at about the 1 minute and 45 seconds point. The offender continued watching the video for a further 5 minutes and 25 seconds past this point.
[5]
Contravention 2 - Access to "Proceed brother"
At about 5.11pm on 10 February 2016 the offender accessed the YouTube website and entered the search term "taqadam ukhaya" that translates to "proceed brother". Four videos were displayed. The offender selected a video entitled "Nasheed Taqaddam Okhay" that had an image of a number of men holding assault weapons in the air (Proceed Brother).
Proceed Brother lasts for 3 minutes and 18 seconds. The same video had been uploaded to the internet in 2014 with a subtitle referencing the proscribed terrorist organisation Jabhat al-Nusra, which was at the time an affiliate of al-Qa'ida. The video accessed by the offender was uploaded on 30 April 2014 and had the subtitle removed.
The nasheed contained the words (English translation):
Proceed to death, you are the proud, you are the brave and the lion of combat…
and
With bombers evoke the enemy, make the hearts bleed and destroy the wicked
So go wear an explosive, rise up, blow up and take pleasure in the destruction and in the outcome
The images and audio of Proceed Brother depicted and described suicide attacks, bombings and are propaganda or promotional material associated with a terrorist organisation, Jabhat al-Nusra.
Between 5.11pm and at least 5.13pm the offender watched Proceed Brother on his iPhone. At about 7.32pm the offender accessed part of Proceed Brother on his iPhone.
[6]
Contravention 3 - Access to "Proceed brother"
Between about 12.39pm and 12.44pm on 12 February 2016 the offender played Proceed Brother on his iPhone.
[7]
Contravention 4 - Access to "Compilation Verses of Jihad"
At about 7.21am on 23 February 2016 the offender accessed the YouTube website on his iPhone. A list of videos were displayed at this time including a video entitled "Compilation Verses of Jihad" (Verses of Jihad).
Verses of Jihad lasts for 6 minute and 29 seconds. It contains a number of still images and motion pictures and sub-titles that include:
an image of armed men with the caption "The few, the proud, the Mujahideen";
an image of a deceased male with a gunshot wound to the head with the caption "Among them is he who has fulfilled his vow";
an image of a silhouette of armed persons surrounding a person waving the Islamic State flag with the caption "and among them is he who awaits [his chance]" immediately followed by the caption "and cast terror into their hearts [so that] a party you killed, and took captive a party;
an image of men on horseback with Arabic language flags with a caption "Those who believe, fight the cause of Allah" followed immediately by video of US military personnel with the caption "and those who disbelieve, fight in the cause of Taghut (Satan);
and ends with a caption that states "have a look at these martyrs faces" followed by a number of images of deceased males with injuries consistent with those sustained in combat.
The imagery, audio and subtitles of Verses of Jihad advocate terrorist attacks and are propaganda or promotional material associated with the activities of Islamic State.
Between 7.24am and 7.30am the offender played Verses of Jihad on his iPhone.
[8]
Contravention 5 - Access to "Compilation Verses of Jihad"
Between 9.30am and 9.37am on 24 February 2016 the offender played Verses of Jihad on his iPhone.
The offender was arrested on 29 February 2016. He had his iPhone in his possession at that time. The offender declined to be interviewed.
The police executed a search warrant at the offender's residence. The police located 2 notebooks and English/Arabic language books and Islamic study books. In one of the notebooks there was a handwritten entry in both Arabic and English entitled "Nasheed (Strangers). The handwriting was consistent with that of the offender. The English component of the text read:
Ghuraba do not bow the foreheads to anyone besides Allah,
Ghuraba have chosen this to be the motto of their life,
If you ask about us, then we do not care about the tyrants,
We are the regular soldiers of Allah, our path is a reserve path,
We never care about the chains, rather we continue forever,
So let us make jihad and battle and fight from the start,
Ghuraba this is how they are, free in the enslaved world,
How many times when we remembered a time when we were happy,
In the book of Allah we recite in the morning and the evening.
Muhammed said,
Islam began as something strange and it will return as something strange so give glad tidings to the strangers
May Allah make us among the Ghuraba. AMEEN
"Ghuraba" is a term referring to strangers or foreigners to the region of Syria, a group who have participated in the smuggling of foreign fighters into Iraq.
Forensic examination of the offender's iPhone revealed links to "Proceed Brother" and "Verses of Jihad" in his browser history.
The offender speaks Arabic. The offender advised an associate on 24 December 2014 that he was going to undertake an online Arabic language course. Between 24 December 2014 and 15 October 2015 the offender conversed with other persons in Arabic of a number of occasions.
[9]
The offender's evidence in the sentence proceedings
The offender relied on a report of Dr Olav Neilsen, psychiatrist, dated 15 June 2016. The contents of that report can be summarised as follows.
The psychiatrist consulted with the offender by audio-visual link for the purpose of preparing the report.
Whilst in custody, the offender has been in the High Risk Management Unit (HRMU) in Goulburn Correctional Centre. He told the psychiatrist that he was housed in a cell without windows and locked in his cell daily from 2.30pm to 8.30am the following day. During the day he had access to a small yard and a day room. He was only permitted to associate with one other inmate. He is often locked in his cell at other times for reasons which he did not know. After 2 months the offender had progressed on the behavioural program to the extent that he was permitted to have a television in his cell and to have access to the sports yard. When outside his cell he was handcuffed and had his legs shackled. He was always escorted by 6 correctional officers. He had access to the Koran in his cell and could exercise his faith. He had not received any visits up to 15 June 2016 because his family members had not been approved. He was permitted to make one 6 minute telephone call per day.
The offender was born in Kabul, Afghanistan as the middle child of 3 children. He was exposed to fighting as a child. The offender and his family became refugees in Pakistan. His father was murdered in the family home when the offender was 7 years of age.
The offender started school in Pakistan. At age 9 he came to Australia with his mother and siblings and continued his education. He left school during the course of Year 12.
The offender told the psychiatrist that he had not been raised as religious but had been introduced to it by his brother in his teenage years. He had a Koran that was English on one side and Arabic on the other. He told the psychiatrist that he could read some Arabic script because it was very similar to Dari but he could not speak Arabic, apart from prayers.
After leaving school the offender worked in a blind and shutter factory and as a courier, before working as a gyprocker. He had commenced a gyprocking business with 2 friends before his arrest. He hopes to return to the business upon his release from custody.
The offender's mother works in Sydney and has not remarried.
The offender met his wife, who is also of Afghan heritage, in early 2015. The offender had been living with his wife and her family at Guildford prior to his arrest. They do not have any children and she is studying childcare. She has been unable to visit the offender in the HRMU. The offender's father-in-law died suddenly on 7 June 2016 and the offender reported that his wife was distressed.
The offender reported feeling depressed in the past few months, without describing any particular symptoms. He reported no significant health problems and denied any use of alcohol, tobacco or drugs and did not gamble.
The psychiatrist concluded that the offender was not suffering from any psychiatric disorder.
[10]
Sentencing principles to be applied
I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.
A court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply to the sentencing of federal offenders: Johnson v The Queen (2004) 78 ALJR 616 at [15].
[11]
Objective seriousness of the offences
The objects of Division 104 of the Criminal Code 1995 (Cth) are to allow obligations, prohibitions and restrictions to be imposed on a person by a control order to protect the public from a terrorist act and/or to prevent the provision of support for a terrorist act and/or the facilitation of engagement in hostile activity in a foreign country: section 104.1 of the Code. The Legislation is intended to deter the emergence of circumstances which may render more likely the carrying out of a terrorist act. The legislation is intended to bite long before a person's conduct manifests in violence: R v Touma [2008] NSWSC 1475 at [80].
The offender knew of the obligations imposed on him by the Control Order. The ICO was explained to him at the time it was served on 6 March 2015. He was reminded of the prohibitions relating to access to the internet when the Coordinator gave approval to him to access the internet on 3 July 2015. The Control Order was again explained to him on 1 December 2015.
The offender did not challenge the making of the Control Order.
The video "My Brother You Are Free" advocated terrorist attacks and was propaganda or promotional material for Islamic State. The content of that video was mild compared to the others. The only link to Islamic State was the still image of a male holding the Islamic State flag that appeared at 1 minute and 45 seconds and remained for about 15 seconds. The link to Islamic State was not obvious until that point in the video. The offender watched the video is its entirety and would have understood that it was propaganda or promotional material at that time. The promotion of a terrorist attack was implied. The offender watched the video once in its entirety and twice in part for short periods. The offender also accessed the preview page twice for short periods.
The video "Proceed Brother" depicted, described and encouraged suicide bombings as a form of terrorist attack and was propaganda or promotional material for a terrorist organisation, Jabhat al-Nusra. The language used was express. The offender watched the video twice in its entirety and once partially.
The video "Verses of Jihad" was not played in Court because the images depicted in it were too graphic. It included images of deceased males with injuries consistent with those sustained in combat. Those males were described as martyrs. The English subtitles displayed encouraged the creation of terror by killing and taking captives. US military personnel were described the enemy and as fighting for Satan.
The accessing of the videos constituted a series of deliberate acts by the offender on 5 separate days over a period of about 6 weeks. The content of the material accessed became progressively more disturbing in that period.
The offender did not give evidence in the sentence proceedings and has not sought to explain why he accessed the videos or to establish that he did not understand their content by reference to his proficiency in Arabic.
I am satisfied beyond reasonable doubt based on the matters set out in [25] of the Statement of Agreed Facts that the offender was able to understand the Arabic spoken in the nasheeds. I do not accept the offender's account of his limited ability to speak Arabic reported to the psychiatrist.
The maximum penalty for each offence is 5 years imprisonment. It is a relatively low maximum penalty when compared to the other terrorism offences in Part 5.3 of the Code. The lowest maximum penalty of 3 years applies to the offence of associating with a terrorist organisation.
It was submitted on behalf of the offender that the offences were at the lower end of the range of objective serious because:
1. more serious contraventions could be contemplated, for example if the offender had obtained some capacity to carry out a terrorist act;
2. the offender did not try to hide his activities from the authorities; and
3. bearing in mind the maximum penalty.
Taking into account the offender's prior conviction, the background to the making of the Control Order, the conduct constituting the offences and the handwritten material located at the offender's home I am satisfied beyond reasonable doubt that the offender accessed the videos because he believed in the extremist ideology underlying them and the activities of Islamic State. His prior conduct evidences that he was willing to act on or encourage others to act on those beliefs.
The offender in those circumstances posed a threat to the safety of the community that the Control Order was intended to alleviate. The offender's deliberate breaches of the Control Order by accessing graphic propaganda over a 6 week period makes the offences of some objectively gravity. I would assess them in the mid-range of objective seriousness.
[12]
Deterrence
There is a need for the sentence imposed to reflect general deterrence. One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and other persons intending to commit similar crimes that they will meet with severe punishment.
Control Orders are made for the protection of the community. The ability of the authorities to combat terrorism is greatly enhanced if control orders are obeyed. Persons who are the subject of a control order need to understand that if they deliberately breach the order that they will meet with a sentence of some significance: R v MO (No 1) [2016] NSWDC 144 at [9] per Judge Berman SC.
There is a need for specific deterrence. The offender has not explained his actions or expressed contrition. The offender will be afforded the opportunity for conditional liberty on parole at the expiry of the non-parole period. In recent times, he has a poor history of compliance with restrictions placed on him. The penalty imposed on him for these offences must bring home to him that he must comply with such restrictions, including any future control order.
[13]
Other matters
The offender is presently 22 years of age. He has one matter on his criminal history, an offence he committed at age 19. The offender does not have any significant health concerns. The offender is likely to have employment when he is released from custody.
The offender has not expressed contrition, but he has entered a plea of guilty that does involve some acceptance of responsibility for his actions.
There is little information available to me relating to the offender's prospects of rehabilitation. The offender has not been able to participate in any rehabilitation programs whilst in the HRMU and it is unlikely that he will do so. In the most serious terrorist offences rehabilitation is likely to be afforded little if any weight: R v Martin (1999) Cr App R 477 at 480 per Lord Bingham. This case is not in that category. The offender is still a young man and has been continuously employed since leaving school. He has a limited criminal history although it is of related to the present offences. The Control Order required the offender to seek and receive counselling and/or religious instruction. He did not take up that opportunity. Nevertheless the sentence imposed should provide him with an opportunity for rehabilitation.
The offender pleaded guilty. For Commonwealth offences the Court must consider the offender's willingness to facilitate course of justice and not the utilitarian value of the plea of guilty: Cameron v The Queen (2002) 209 CLR 339 at [14]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]-[28]. That enquiry may reveal whether the plea was a recognition of the inevitable or truly motivated by willingness to facilitate the course of justice: Lee v R [2012] NSWCCA 123 at [58]. The Crown case was a strong one. The offender's plea has saved the need for witnesses to be called at trial and that can be taken into account: Cameron at [79]. I am satisfied that the offender's plea indicates an acceptance of responsibility for his actions was motivated in part by a willingness to facilitate the course of justice. The appropriate discount is 15%.
The first offence was committed when the offender was on a recognisance to be of good behaviour and that is considered to be an aggravating factor.
By reason of his security classification, the offender has been imprisoned in onerous conditions. Those conditions are likely to continue for the term of any sentence imposed. I have taken those conditions into account in mitigation of the sentence imposed.
I have been referred to the decision of R v MO (No 1) [2016] NSWDC 144 and (No 2)[2016] NSWDC 145 as a case concerning the only other offender sentenced for breaching a control order. In that case the offender used a public telephone on 2 occasions and a mobile telephone once, neither of which had been approved for use by him by the Coordinator. The conversations that he had on the occasions that he breached the control order were innocuous. For the 3 offences, the offender was sentenced to a head sentence of 2 years with a non-parole period of 18 months, by application of section 19AG of the Act. I note that the decision is not binding on me and whilst there are some similarities between the 2 cases I must decide the present case on its facts.
I have had regard to the principle of totality and it is appropriate to apply it in mitigation of the sentence imposed.
[14]
Penalty
The offender conceded that a sentence of full-time imprisonment was the only appropriate sentence.
I have had regard to section 17A(1) of the Act and I am satisfied that after having considered all other available sentences that no other sentence other than a sentence of imprisonment is appropriate in all the circumstances of this case. The reasons for this decision are that:
1. the offences committed are objectively serious;
2. there is a significant need for general deterrence;
3. there is a need for specific deterrence;
4. there is a need for denunciation of the offending conduct;
5. there is a need for the protection of the community; and
6. the subjective considerations relating to the offender are necessarily subsidiary to the duty of the Court to ensure that he is given a punishment of appropriate severity.
The offender is convicted of each offence.
Sections 19AB and 19AG of the Act apply to this case.
In relation to Contravention 1 the offender is sentenced to imprisonment for 9 months to commence on 29 February 2016 and expire on 28 November 2016.
In relation to Contravention 2 the offender is sentenced to imprisonment for 12 months to commence on 29 August 2016 and expire on 28 August 2017.
In relation to Contravention 3 the offender is sentenced to imprisonment for 12 months to commence on 29 May 2017 and expire on 28 May 2018.
In relation to Contravention 4 the offender is sentenced to imprisonment for 15 months to commence on 28 February 2018 and expire on 27 May 2019.
In relation to Contravention 5 the offender is sentenced to imprisonment for 15 months to commence on 29 November 2018 and expire on 28 February 2020.
I fix a single non-parole period of 3 years to date from 29 February 2016 and to expire on 28 February 2019.
[15]
Explanation of sentence
I am obliged to explain to the offender the effect of the orders I have made.
Ahmad Saiyer Naizmand, the sentences I have imposed mean that you will be obliged to spend a minimum period in custody of 3 years. This means that, having regard to the time you have already spent in custody, you will be eligible for release on parole on 28 February 2019.
It will be a matter for the Attorney General as to whether you will be released on that day. It may depend upon your behaviour in prison. It will also be a matter for the Attorney General to determine whether any conditions should apply to you while you are at conditional liberty on parole after 28 February 2019. If you are released on that day, you will remain on parole for a further period of 12 months. If you were to breach your parole, you may be required to return to prison to serve the balance of the term of your sentence.
Coversheet - decision - amended to reflect corrected sentence in paragraphs [78] to [83]
[18]
Paragraph [77] amended, and new paragraphs [78] to [83] inserted, amending sentence with the imposition of a term of imprisonment in relation to each offence, in lieu of the single head sentence originally imposed; pursuant to ss.19AHA(3), 19AHA(5) of the Crimes Act 1914 (Cth)
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Decision last updated: 03 May 2017