Regina (CTH) v Ahmad Saiyer Naizmand

Regina (CTH) v Ahmad Saiyer Naizmand - [2017] NSWDC 4 - NSWDC 2016 case summary — Zoe

[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.

[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.

[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.

At a glance

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Judgment (18 paragraphs)

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Legislation Cited (5)

Cases Cited (10)

Cited By (2)