Mohamed Ali Elomar
81 I know very little about Elomar. In particular, I have not been provided with any information that allows me to understand or comprehend the situation that has led him to become a dangerous and committed terrorist. After the sentencing proceedings were completed, Mr Dalton SC, with the consent of the Crown, sent me a brief note which tells me something about Elomar's background. Elomar gave no evidence before me either at trial or during the sentencing proceedings. There were no reports submitted on his behalf.
82 In terms of age, Elomar is the most senior of all the offenders. He is 44 years of age. He came to Australia from Lebanon in 1977. He was born in Tripoli. He attended school at Bankstown but left after completing Year 10. Initially, Elomar successfully undertook a Metal Fabrication apprenticeship with the Water Board. He was obviously intelligent and not without ambition and ability. It appears from the material submitted to me that he attended a Mechanical Engineering course and afterwards went on to undertake a Rigging and Crane Driver drafting course. He has been part of and worked in a family business for approximately 15 years. This business entailed working with structural steel on building sites. It is clear he is resourceful and successful in business.
83 Elomar comes from a large family. There are 12 children in his family. His 11 brothers and sisters reside in Australia, with most having their own businesses. His father died in 1994 and his mother passed away while he was in custody in 2008. Elomar has been married to his wife for 22 years and has six children of his own. In recent times he has operated his own drafting business, but on occasions he has also worked with his brothers in the family businesses. He was clearly well respected by the other offenders who appear to have treated him with some degree of deference.
84 This brief statement of facts, collated principally from Mr Dalton's document, indicates how little I know of Mohamed Elomar. Some assessment of his state of mind, however, can be obtained from an examination of the interviews he had with the authorities on 21 and 22 June 2005. His answers showed a very high level of defiance, dislike and anger towards the Australian Government and its policies overseas. They contained the usual prevarications about Osama bin Laden and whether Muslims were responsible for the slaughter of innocent civilians in the Bali bombings. While it is true he was careful, during the interview, to assert that he was not involved in any plans to take jihadist action or to set off explosives in Australia, the overall attitude displayed was one of anger and aggression. It is probably correct that he was somewhat goaded by the questioning, as Mr Dalton submitted to the jury, but he remained perfectly in control throughout the interview and indeed, dominated it. A second insight into his mindset is to be gained from an examination of the extremist and instructional material he had at his home. I shall not pause to repeat these matters as they have been sufficiently examined elsewhere in these remarks.
85 Elomar, as did all the other offenders, clearly played a central part in the furtherance of the conspiracy. He occupied a co-ordinating position in relation to most aspects of the enterprise. It was he who was responsible for ordering an extensive amount of assault rifle ammunition in 2005. It was he who wrote out the handwritten list for the Haines order in May 2005. He co-ordinated the man "B" towards the end of the period of the conspiracy and participated in a coded system of communication with "B" and also Khaled Cheikho. He was clearly at the forefront of the concealment activities in October/November 2005. It was he who possessed the recipes for explosives that I have set out earlier. I find each of these matters established beyond reasonable doubt.
86 The Crown's initial submission was that Elomar was the leader of the conspiracy. The Crown suggested that the Court could be satisfied beyond reasonable doubt that a hierarchy existed. At the top of the list was Elomar, with Khaled Cheikho not far beneath him as some type of vice-captain or senior officer. The submission continued that Hasan and Moustafa Cheikho might be seen as middle rank participants in the conspiracy, with Jamal bringing up the rear, principally on the basis that he came into the enterprise fairly late in the piece.
87 The Crown later moderated and clarified this submission to some extent. In its final written submissions it said: -
"It is further submitted that apart from the places of the offenders Elomar and Khaled Cheikho in the hierarchy of the conspiracy, the roles and nature of participation of the offenders in the conspiracy are not in any (or any substantial) dispute. It is, however, accepted by the Crown that the Court is entitled to conclude that any findings that the Court may make as to different places in the hierarchy of the conspiracy do not necessarily lead to any, or any significant, differentiation between the offenders as to appropriate sentences, albeit that Jamal was a relatively late joiner".
88 In my opinion, the initial submission regarding hierarchy is apt to mislead in the present matter. First, in a conspiracy such as the present it is very difficult to determine whether a hierarchy exists and, if so, the precise level occupied by each of the offenders. Secondly, a conspiracy of the present kind is very different from, for example, a conspiracy to import drugs for a commercial gain. There, it may well be anticipated, there might undoubtedly exist a clear hierarchy of criminal responsibility. That may well have important consequences for the sentencing process.
89 In the present matter, while it is certainly true that Elomar was the most senior of the offenders, the fact is that each of the men was unequivocally committed to an outcome that was intended at the very least to cause serious damage to property and would have been very likely to cause devastation in the community, if not serious injury or death to civilians. Each offender was convinced that it was his solemn duty to undertake the necessary tasks to further the enterprise, no matter the individual cost to him. Each had an unswerving commitment to the enterprise and to his fellow conspirators. This commitment was deeply held by each man and arose out of a sense of contempt for the Australian Government, its leaders, its law and its values. Subject to the resolution of the submission made by Mr Scragg for Jamal, it may be safely said that each man still holds these views. Each man's conviction was that the plight of Muslims in other lands demanded violent action in this country to redress those wrongs and, through fear and panic in the community, to change the Government's policies.
90 While it is undoubtedly true that Elomar was the most senior of the offenders, as I have said, and while it is undoubtedly true that he played a central role in the furtherance of the conspiracy, it may also be said that each man played a central role, even if the actions of some were more numerous than those of others. In my opinion, this means that, although there may be slight gradations of difference in the allocation of criminal responsibility, overall the level of criminality to be attributed to each offender is relatively similar. In the present matter, there is little utility in trying to establish with absolute precision a gradated hierarchy when the criminal liability of each man is at such a high level. That is because the level of criminality of the conspiracy itself to which each man was a willing adherent is, as I have said, not much less serious than the worst-case situation. That said, there can be no doubt whatsoever that Elomar was, throughout the conspiracy a co-ordinator of many aspects of the criminal enterprise. That situation, as will be seen, may be contrasted with the role played by others.
91 In Elomar's case, as with each of the others, this assessment is to be moderated by the fact that no target had been selected and no decision had been made as to what would be the precise nature of the terrorist act or who would carry it out. Secondly, I take into account that Elomar has led a blameless life for a considerable number of years. He has no criminal history whatsoever. Thirdly, I take into account the difficult conditions of his custody both pre-trial and the likely conditions following upon conviction and sentence. These men, however, while they undoubtedly face the prospect of many years in a prison with a degree of trepidation and concern, do appear to wear their imprisonment like some kind of badge of honour. This is because they see it as a test of their faith and a burden willingly to be borne as a duty arising from their fundamentalist religious conviction.
92 In Elomar's case, as with all the men, I propose to backdate the sentence to be imposed to reflect the period spent in custody following arrest. I also take into account the fact that, from the outset, Elomar's legal representatives have sought to facilitate the course of justice by suggesting or advocating possible methods to short circuit the length of the trial and make the reception of evidence more efficient. Unfortunately, this attitude was not shared among others and the Elomar proposals, in the end, did not, in any real way assist the shortening of the trial. Nevertheless, it is a matter that should be taken into account and I propose to do so.
93 Despite these moderating features, I have to say that Elomar has not acknowledged any responsibility for his actions, nor has he exhibited any contrition or remorse in relation to the serious crime for which he has been convicted. Of course, like the others, he continues to assert his innocence. From my perspective as the sentencing Judge, it is important to note, however, that there is no contrition and no acceptance of responsibility whatsoever. Importantly, I see little prospect of rehabilitation. There is no present indication that Elomar will ever renounce the extremist views that fuelled his participation in this very serious conspiracy. Unfortunately, Elomar has all the hallmarks of a offender whose motivation is not that of financial or other material gain, but who is driven to act from an extremist religious conviction. The significance of this for sentencing purposes is the acknowledgement that the community needs protection from his criminality. The sentence must provide an appropriate level of incapacitation so that the commensurate degree of protection will be afforded to the community.