Regina (C'Wealth) v Mulahalilovic

Supreme Court of NSW|2009-01-30|Before: Whealy J, Spigelman CJ

Background to the plea 5 The offender is one of nine men who were arrested and charged in late 2005 with a serious terrorism related offence. In this Court, an original indictment had been presented against the offender and the other men in May 2007. The charge in this indictment was that the offender and the other men, had conspired together to do acts in preparation for a terrorist act or acts. All the accused, including the offender, had earlier been committed for trial. This occurred in March 2007, following a lengthy committal hearing. 6 The trial against the nine men was set down to commence on 27 October 2008. The commencement of the jury empanelment was to occur on that date. (I should add that the Court had earlier been involved in some eight months of intensive pre-trial decision making prior to the jury empanelment. Those pre-trial procedures had commenced in February 2008, and had continued unabated until the week of 27 October 2008). 7 During the pre-trial process, one of the accused, Khaled Sharrouf, had been found unfit to plead. This led to the Court making an order that he be separately tried from the others. The order was made on 15 September 2008. On 12 September 2008, another of the accused, Mazen Touma, pleaded guilty to four charges contained in a fresh indictment. Plainly, an agreement had been reached between the Crown and Touma in this regard. The Crown had indicated that, in view of Touma's then willingness to plead guilty to the four individual charges in the new indictment, the Director of Public Prosecutions would not proceed further against him in relation to the conspiracy charge. 8 A third member of the alleged conspiracy also determined that he would plead guilty to certain charges in a fresh four count indictment, alleging a series of terrorist offences. In fact, this offender, O, pleaded guilty to those four charges on 3 November 2008. At this stage sentence has not been imposed on O. Once again, the Crown informed the Court, presumably in conformity with the agreement reached between the parties, that the Crown would not proceed further against O on the conspiracy charge. 9 The particular circumstances which led to the presentation of the fresh indictment against the present offender and his subsequent decision to plead guilty to the new charge may be briefly stated. I have been told that, not long before the anticipated date of the jury empanelment in the conspiracy matter, the offender's legal representatives had made a "No Bill" application on their client's behalf. This application, however, was rejected by the Director of Public Prosecutions. There then followed an urgent application by the offender for a separate trial. This contested application was actively pursued in a hearing on 14 October 2008. At the conclusion of the hearing of the application, I announced that, in the exercise of my discretion, I would not order a separate trial for the offender. I determined that his trial should proceed together with the trial of the remaining men facing the conspiracy charge. A week or so later, on 24 October 2008, I provided reasons for that decision. It appears that extensive negotiations were taking place between the legal representatives for the Director and those appearing for the offender. This occurred during the intervening days between the decision and the publication of reasons. Those negotiations, as it happened, bore fruit in the sense that a fresh indictment was presented on 24 October 2008, and the offender immediately pleaded guilty to the new charge. The Director of Public Prosecutions took the position that, in view of the offender's willingness to plead guilty to the charge in the new indictment, he would not proceed further against him in relation to the separate conspiracy charge.

The statutory offence 10 The offence to which the offender has pleaded guilty is contained in Part 5.3 of the Criminal Code Act 1995. Relevantly, s 101.4 of the Act provides: - "(2) A person commits an offence if: (a) the person possess a thing; and (b) the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and (c) the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b)". 11 The offence carries a maximum of ten years imprisonment. 12 The statutory definition of "recklessness" is found in Part 5.4 of the Criminal Code Act 1995: (1) A person is reckless with respect to a circumstance if: (a) he or she is aware of the substantial risk that the circumstances exist or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (2) A person is reckless with respect to a result if: (a) he or she is aware of a substantial risk that the result will occur; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is one of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element".

The facts surrounding the commission of the offence 13 There is a large measure of agreement between the parties as to the facts that are relevant to the commission of the present offence. Regrettably, however, the parties were not able to agree completely in relation to all the factual allegations. It will be necessary for me to resolve the difference between the parties in that regard. The matters where agreement has been reached may be briefly stated as follows: -

(a) At the time of the arrest of the offender on 8 November 2005, police found a receipt in his wallet issued by Jansa Arms Co. That receipt was dated 19 August 2005. Jansa Arms Co traded at premises at 458 Bexley Road, Bexley, New South Wales 2207.

(b) The receipt recorded the purchase on 19 August 2005 of a quantity of ammunition. It was described in the receipt as "7-62-39 Ammo".

(c) In the same wallet was found a torn page from a notebook on which was written the notation "308 or 7.62 x 39 cleaning kit" along with the words "black powder for black powder guns".

(d) The police also located a firearms licence permit in the name of Mirsad Mulahalilovic. This had an expiry date of 19 July 2006 and had been issued under the authority of the Commissioner of Police New South Wales. There was also a card showing membership by the offender of the Sporting Shooters Association of Australia. This particular membership card, on its face, appeared to have expired on 31 March 2005. It indicated, however, that the offender had been a member of the association since April 2001.

(e) The precise detail of the terrorist act or acts stipulated in the indictment was, and is not, known to the Crown. The quantity of ammunition, to which the receipt related, however, has never been located.

(f) The ammunition mentioned in the receipt is of a type which is capable of being used in a variety of rifles including AK-47 rifles, SKS rifles and Zastava rifles. It was of a type identical to that which was the subject of an earlier enquiry made by O at the Condell Park Firearms Range and Gun Shop in late July 2005. It was identical to the type of ammunition recorded on a "to do" list found in the possession of O on 8 November 2005. It also appears that the ammunition was of a type identical to that which had either been purchased by or found in the possession of two other men. These two men were said to have been engaged in the alleged conspiracy during 2005. There was no evidence to suggest that the present offender had any knowledge of the activities of those two men in that regard.

(g) The "to do" list found in the possession of O on 8 November 2005 also contained an entry bearing the words: - "See Mirsad - $ Ammo".

(h) The offender was friendly towards, and associated with, O throughout 2005. 14 The critical area of disputation in relation to factual matters arose principally from the Crown's assertion during the sentencing hearing that the offender held and embraced certain beliefs of an extremist nature. The holding of these beliefs was, according to the Crown's submission, a relevant matter to be taken into account in assessing the objective seriousness of the offence, and in relation to other matters generally relevant to the issue of penalty. Mr Turnbull SC, who appeared with Mr Djemal for the offender, accepted that the holding of views of this kind would be relevant to sentence, but disputed the factual conclusions advocated by the Crown. It will be convenient to state these at this stage. The Crown had submitted that at the time of the commission of the offence, the offender was a devout Muslim. There can be no doubt about that matter. The Crown, secondly, submitted that the offender held certain beliefs in relation to his interpretation of the Muslim faith. These were said to include the following: -

(a) Islam throughout the world was under attack and there was a religious obligation to come to the defence of Islam and other Muslims.

(b) Jihad was the primary means by which this religious obligation should be fulfilled.

(c) A significant and legitimate aspect of the fulfilment of this obligation was violent Jihad, which involved the application of force and violence, including in certain circumstances the killing of persons who did not hold or have the same fundamentalist beliefs. 15 The Crown argued that the fact the offender held these beliefs was to be inferred from the finding of a large volume of material supporting such views (extremist material) at his premises upon the execution of a search warrant at the time of his arrest. The extremist material was extensively described in a schedule provided by the Crown. In addition, the Crown provided DVD's showing a selection of this material. 16 The type of images contained in the material may be briefly described. They appear to fall into a number of categories. First, there are images extolling the September 11 2001 attacks on America. Secondly, there are images involving Osama bin Laden and/or praising his activities particularly in relation to "warfare". Thirdly, there are extremely gruesome images showing the brutal execution of foreign prisoners held by Militarist Islamists. These include, for example, the particularly horrible beheading of a Korean prisoner by a group of masked men holding rifles. All the images in this category are ghastly, to say the least. Fourthly, there are images praising suicide bombings, documents dealing with the defence of Muslim lands and the need to employ violent jihad in the defence of Islam. The Crown also pointed to the presence at the offender's home of non-electronic material. For example, the book by Sheik Abdullah Azzam "Defence of the Muslim Land". 17 Mr Turnbull SC countered by tendering a copy of a report by Ahamad Moutasallem. This was an analysis described as "Mulahalilovic Hard Disc Report". It forms part of Exhibit 1, a folder containing the bulk of the material relied upon by the offender during the sentence hearing. The report is essentially a brief summary of the contents of each of the major sub-folders found on the hard disc of the offender's computer. The author noted that the hard disc was quite large. In total, 150 gigabytes had been used consisting of over 100,000 files and over 5,000 sub-folders. The three main sub-folders contained much material that could be described as "benign". It included, for example, Islamic lectures, Quranic recitations, Arabic religious songs, Arabic language classes and American movies. The war clips and execution material were described in the report as "random", being interspersed among computer games, accounting documents and the like. There were, for example over 1,000 files of Islamic lectures. These "lectures" covered issues such as the translation of certain verses of the Koran, the lives of the Islamic Prophets etc. Many of the lectures encouraged Muslims to be open minded, diplomatic, pleasant, peaceful, wise and patient. The Arabic Anasheed's content varied greatly. It ranged from gentle poetry about the affection a Muslim man should have for his wife to tracts concerning the occupation of the Muslim lands and the need for resistance. 18 There was also significant material on the hard disc relating to Arabic language classes (the offender did not speak Arabic as he was a Bosnian by birth). 19 There was a smaller folder which contained a number of recent American movies. There was also a considerable volume of music. There were also movie files from "Faces of Death" which appeared to be a selection of gory movies including animal attacks, deadly accidents, executions and amputations. There was also a hidden folder containing several pornographic videos. 20 The folder Exhibit 1 contains a lengthy summary described as "seized media summary - Mulahalilovic". This summary gives further detail of the contents of much of the material found on the offender's computer. It is 57 pages in length. The point made by Mr Turnbull SC was that the material relied on by the Crown to support its assertion that the offender held extremist beliefs and enjoyed extremist material must be seen against his possession of a much broader range of documentation, both Islamic and other, which is generally of a "benign" nature. I should mention that the Crown not only relied on the fact that the offender "possessed" extremist material on his computer. It relied on the fact that a good deal of this extremist material was apparently "shared" between the offender and those persons with whom he was originally charged as co-conspirators. For example, the Crown particularly relied on the fact that some of the extremist material was held by O in particular. 21 Exhibit "A" (a Crown exhibit) is a schedule of extremist and instructional material seized from the offender's premises at 34 Kent Street, Belmore. This schedule demonstrates that a good deal of the extremist material, indeed most of it, was also held by O. For example, the images entitled "The End of America". Secondly, the video introduced by Osama bin Laden showing a number of explosions of vehicles and persons. Thirdly, Islamic teachings about paradise. Fourthly, material described as "female suicide bombers for God". Fifthly, the work entitled "Defence of the Muslin Lands". I shall not list them all. There are many, including images and documents regarding jihad and the need to destroy non-believers and those who would "stray" from the path of Islam. Finally, mention might be made of a video described as "American Pigs Killed" showing a video of a truck exploding. It does not, however, seem that O had any of the execution videos or images in his possession. 22 In further support of his argument Mr Turnbull SC placed before the Court a number of character references and called a number of witnesses. In relation to the first category, the statements of the character witnesses became Exhibit 2 in the sentencing hearing. There is no need for me to detail these. Many of them stress that the offender was not disposed to violence and that he was generally a peaceful person. Many described him as honest, reliable and family oriented. His general practitioner, Dr Jamal Rifi, described the offender as "a gentle well mannered person". Ms Rose Matijevic said, "he is not a violent or vengeful person…and I know he would not be involved in anything that would cause anybody any harm". There were work references as well, attesting to the fact that the offender has always been a good worker. His mother provided a note which indicated that she had been working three jobs to maintain payments on the mortgage and the bills for the jointly owned home during his time in prison. The remaining character references stress the fact that the offender has never been involved in any violent behaviour, and that he is, generally speaking, "a peaceful person". 23 These aspects of the offender's character were commented upon by witnesses who gave evidence at the hearing. One particular witness, Mr Camdzic, gave evidence about the circumstances surrounding a conversation he had with the offender on 5 November 2005. This conversation had been captured in a telephone intercept. It is necessary to make some brief comment about this because the Crown has placed reliance on the conversation to suggest that it points to the offender's support for extremist behaviour, particularly that related to a possible terrorist response. On 5 November 2005, the offender had been having a discussion with Mr Camdzic. The topic of discussion was an item on the internet in which a person in the United States of America had taken a copy of the Koran, shot at it and set it on fire. Both men expressed their disgust at this behaviour and the offender said "Don't worry, there will be the day for them" (or, according to another translation "never mind, they'll get theirs too"). 24 Mr Camdzic suggested that during this discussion there had been no suggestion by either man of any threat of extremist behaviour, but that they were each simply expressing abhorrence towards the behaviour, which they were discussing. 25 Even without the evidence of Mr Camdzic, I would not be satisfied that the particular remarks made by the offender during the conversation afford any particular basis for asserting that the offender was espousing extremist beliefs or suggesting extremist behaviour on that occasion. 26 Another witness, Mr Adkovic stated that, for example, the offender was particularly critical of those Muslims who had been involved in the infamous Beslan massacre. The Crown argued, however, that little weight could be given to this statement, as it was not confirmed by any evidence from the offender. 27 It will be apparent from all of the above that there is an area of dispute between the parties in relation to the extent to which the offender did or did not hold extremist beliefs and the extent to which the holding of such beliefs, even to the extent that they were held, ought contribute to the relevant considerations underlying the imposition of penalty in the present matter. The offender, of course, is not to be punished for the holding of extremist beliefs, but those beliefs, to the extent to which they were held, do have the capacity to impact upon an assessment of the objective seriousness of the offence and they have a relevance, in other respects, for the sentencing process. This is particularly so in relation to the question as to whether the plea of guilty entered on the offender's behalf might properly be regarded as the drawing back from the holding of any such extremist beliefs. Of course, if that were not the offender's mindset, this will become a matter of little or no significance in the sentencing process. 28 I will return to this disputed area of fact in dealing with other aspects of the sentencing process. Before doing so, however, I will say something about the offender's subjective circumstances.

The offender's subjective circumstances 29 Most of the factual matters I will now describe emerge from the report of a consulting clinical psychologist, Emma Collins. Ms Collins provided a report dated 5 December 2008. The information she presented was gleaned from an interview she had with the offender on 1 December 2008. Some of the material referred to in the report was confirmed by the details of the character evidence called on the offender's behalf. The offender himself gave no evidence before me and I have to say that, in matters of importance, as I will later explain, little weight can be given to some of these matters appearing in the psychologist's report in circumstances where the offender has not given evidence or where it is not reliably supported by other evidence. 30 The indisputable facts, however, are that the offender is a 32 year old Bosnian born Muslim male. He has been bail refused and in custody for a little over three years. He had been living with his wife and family, and had a painting business, at the time of his arrest. 31 The background history establishes that the offender was the older of two brothers who were born and raised in a small Bosnian town. He had "a good childhood". It appears, however, that for a time his father abused alcohol, and that this adversely affected his father's parenting and general behaviour within the home. Consequently, the offender had a poor relationship with his father in these early years, principally because of these abusive experiences. The relationship, in more recent times has improved. His father has given up alcohol and has become more religious and devout in his daily life. 32 The offender completed his education to the end of Primary school. He did not have any learning or behavioural problems and probably would have continued with High School education were it not for the fact that the family life was disrupted because of the need to move to Germany in about 1992. This "forced" migration occurred because of the growing tensions and problems in Serbia. The family stayed in Germany for about four years and then they relocated to Sydney in 1996. 33 There is no doubt that these various moves, coupled with attendant language difficulties, would have had an unsettling effect on all the family, including the offender. It appears, however, that they have settled well in Australia and, after a time, adapted fairly well to Australian conditions. The family currently reside at Belmore. The offender became involved with his present wife in 2001 and they married the following year. The offender built a granny flat on the property for his wife and his daughter. (The child was born after he was taken into custody). The marriage is a good one and the offender's wife remains supportive of him and visits him weekly. 34 The offender set up his own Plastering and Painting company a little while after he had moved to Australia and he was working in that capacity right up to the time of his arrest in 2005. He had always maintained consistent work within the community. 35 For a time, when he was living in Germany, the offender had experimented with drugs and experienced binge drinking. This behaviour, not unusual for a young man of that age, began to moderate after he moved to Sydney. From the time he turned 21, he ceased using cannabis and, after a short time, gave up alcohol altogether. The offender told Ms Collins that he experienced an increasing interest and participation in the religion of Islam. In relation to the present offence, the offender discussed this with Ms Collins. I will quote from the report (at paras 16 and 17): - "He reports that he heard many varying religious beliefs and perspectives but he said that he did not get swayed by such influences and rather made his own choice about Muslim "schools" of religion through his own research and practices. Mr Mulahalilovic denied following beliefs relating to the fundamentalist application of jihad, stating that he does not tolerate the killing of "innocence". (He reports) that he discussed religious laws with some members of the Prayer Hall, including the co-accused. He states that he took this man's comments lightly and did not give them much merit. He did acknowledge that he did not always challenge this man's personal beliefs preferring to "keep the peace". Mr Mulahalilovic attempted on one occasion to go pig hunting with this man, as was traditional in Bosnia, but the place where he had previously been with his family was closed. He reports that this man later asked him to buy some bullets for him and he complied. He told me that he was aware that this man's gun licence had expired and so accepted that he was unable to handle firearms appropriately, given his (expired) licence. He reported that he was "naïve" as to how this behaviour could be construed as a terrorist act. Mr Mulahalilovic denied any knowing involvement in terrorism". 36 The conclusions reached by Ms Collins in relation to the offence appear at para 23 in the following terms: - "Mr Mulahalilovic admits that whilst he did not condone more fundamentalist practices he did not always assert his beliefs around others, stating that he tends to avoid confrontation. Therefore, with regard to the current offence, there were times when he might have been more firm about his beliefs, but seemingly was unable to. If his account of not being aware of terrorist activity is to be given credence, his lack of assertion seems to be no more than what might be expected from anyone moving in a group of people where views of varying intensity are expressed and one does not want to make waves". 37 Ms Collins thought the offender was a person who was rather passive in his communication style with others, and perhaps naïve in his appreciation of the motives of others, particularly those outside his family. He admitted that he had been manipulated by other more sophisticated parties. Ms Collins did not make any strong recommendations for treatment for Mr Mulahalilovic. She found him to be "a healthy person and reasonably well adjusted". He was free from any major mental illness or recent substance abuse. Ms Collins, however, thought that the offender would have available to him a number of protective factors that would make him amenable to ongoing supervision in the community. She considered that he was a person who had stable accommodation available to him, a supportive family and the benefit of a firm relationship. He had "reasonable employment prospects". 38 A number of these views of the offender were, to some degree, confirmed by each of the three character witnesses who gave evidence. Each of these persons confirmed that, based on his experience, the offender was not a violent person, nor a person given to violent behaviour of any kind. Each confirmed that, in a number of ways, the offender was quite a tolerant person, that is tolerant of people of different backgrounds and beliefs. All three witnesses thought that there would be no prospects of the offender committing any further offences, especially those of the kind referable to the offence to which he has pleaded guilty. They did not, however, provide any particular insight into the circumstances surrounding the commission of the offence.

The statutory framework for sentencing in Federal matters 39 The statutory guidepost for the exercise of the sentencing discretion in the present matter is provided by s 16A(1) of the Crimes Act 1914 (Cth): "16A(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a Federal offence, a Court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence." 40 Section 16A lists a number of matters which the Court must take into account "as are relevant and known to the Court". These include, relevantly, for the present sentencing exercise: · The nature and circumstances of the offence · The degree to which the offender has shown contrition for the offence · The fact that a person has pleaded guilty to the charge in respect of the offence

· The deterrent effect that any sentence may have on the person · The character, antecedents, age, means and physical or mental condition of the offender · The prospect of rehabilitation of the offender, and · The need to ensure that the offender is adequately punished for the offence. 41 Although the need for general deterrence is not specifically listed among the factors in s 16A(2), a sentencing court must have full regard to the need for denunciation and general deterrence in determining the appropriate severity of the sentence in accordance with s 16A(1) (R v Paull (1990) 20 NSWLR 47; El Karhani (1990) 21 NSWLR 370). The formulation of words in s 16A(1) indicates that the sentencing principles developed at common law, rather than the various provisions in the State legislation, should apply for sentencing of Commonwealth offences (Faheem Khalid Lodhi v Regina (2007) NSWCCA 360 at [81] per Spigelman CJ; Johnson v The Queen (2004) HCA 15; (2004) 78 ALJR 616 at [15].) 42 It is clear that the common law concepts that are especially important in the present sentencing exercise are punishment, deterrence, denunciation and incapacitation (the last matter is often described as protection of the community - see Faheem Lodhi v Regina at [89, 97 - 109] per Spigelman CJ). In R v Martin (1999) 1 Cr App R 477 (at 480), Lord Bingham CJ, as the Senior Law Lord then was, said: "In passing sentence for the most serious terrorist offences, the object of the Court will be to punish, deter and incapacitate: rehabilitation is likely to play a minor (if any) part." 43 There is also a need to consider the nature and purpose of the anti-terrorism laws, the reasons for their enactment and, in the context of the particular offence, the maximum penalty prescribed by the legislature. 44 In relation to the first matter, part 5.3 of the Criminal Code Act 1995, within which the relevant offence is contained, is based not only on the general legislative powers of the Parliament of the Commonwealth, but also on legislative powers referred by each of the States under s 51(XXXV) of the Constitution. As such, it is based on a scheme determined by the Parliament of the Commonwealth and the Parliament of every State. In that sense, it reflects the common will of the people of Australia through their elected representatives. 45 In addition, the seriousness with which the international community views terrorism offences is reflected in the number of international instruments which address the issue. The provisions of the Code in relation to terrorism offences give effect to Australia's international obligations as a signatory to a number of these instruments. They reflect a common worldview that terrorism is a matter of international, not merely domestic, concern. 46 The background to the enactment of the anti-terrorism provisions contained in part 5.3 of the Code was explained by the Attorney General in the course of the Second Reading Speech on 12 March 2002. This related to the provisions, which were originally enacted. On that occasion the Attorney observed: "(This bill) has been prepared in response to the changed security environment since September 11. September 11 is a stark example of the horror and devastation that can be caused by acts of terrorism.

Terrorism has the potential to destroy lives, devastate communities and threaten the national and global economy.

For these reasons this government has affirmed its commitment to combating terrorism in all of its forms.

We join with the international community in condemning the 11 September attacks and other terrorist activities.

Other like-minded countries have passed, or are in the process of passing, anti-terrorism legislation designed to assist in this fight.

Consequently, counter-terrorism legislation and proposals throughout the world have been considered in the preparation of this Bill."

47 It may safely be assumed the subsequent amendments to the terrorism legislation have been motivated by these or similar considerations, and by the impact of subsequent terrorist atrocities in various parts of the globe. 48 The broad purpose of the creation of an offence of the kind involved in this sentencing exercise is to deter the emergence of circumstances which may render more likely the carrying out of a terrorist act. It is to punish those who contemplate or recklessly commit action of the prohibited kind. It is to denounce the activities of terrorists and their adherents. It is to incapacitate them so that the community will be protected from the horrific consequences contemplated or made possible by their actions. The legislation is designed to bite early, long before the acts connected with terrorism mature into circumstances of a deadly or dangerous consequence. The legislation generally extends to the actions of those who act recklessly, as well as to those who act intentionally and knowingly. The maximum penalty for the present offence recognises that the present offence is not as serious as other terrorist offences, but it remains an offence of some considerable seriousness. The intentional possession of items that may be used in a terrorist attack, particularly items that may cause death, even where that possession is reckless rather than knowingly motivated, is a dangerous adjunct to terrorism and must be denounced and deterred by significant penalties, where that is appropriate. 49 There is an observation made by the Court of Appeal for England and Wales in R v Barot (2007) EWCA Crim 1119 at [45] which is germane to this discussion. There the Court said: "Terrorists who set out to murder innocent citizens are motivated by perverted ideology. Many are unlikely to be deterred by the length of the sentence that they risk, however long this may be. Indeed, some are prepared to kill themselves in order to more readily kill others. It is, however, important that those who might be tempted to accept the role of camp followers of the more fanatic, are aware that, if they yield to that temptation, they place themselves at risk of very severe punishment. Punishment is the other important element of the determination of the sentence for offences such as this."

50 This observation was, of course, made in the context of terrorist activity designed to kill innocent people. It has a relevance, however, for terrorism in all its aspects. Specifically, it includes in its ambit those who, intentionally or recklessly assume, in some form or other, the role of a camp-follower to those who are of a more extreme terrorist bent. Terrorists cannot adequately function without followers, acolytes or assistants. 51 It is especially important to note that the terrorism legislation, relevantly for the present matter, is concerned with actions even where the terrorist act contemplated or posited by an accused person has not come to fruition or fulfilment. Indeed, the legislation caters for prohibited activities connected with terrorism even where no target has been selected, or no final decision made as to who will carry out the ultimate act of terrorism. There is a need, then, to consider what would have happened had the intending terrorist act or acts actually occurred. There is a commensurate need, in the present matter, to assess the offender's state of mind, so far as it can be ascertained, by reference to his actions and his plea. 52 It will be necessary to ask the questions: What do the agreed facts, tell us as to those matters? What do the facts, in the areas of difference between the parties, tell us as to those matters? In the light of the answers to those questions, what then is the objective seriousness and gravity of the criminal conduct that falls to be punished by this sentencing exercise?

Objective seriousness 53 I turn now to assess the objective gravity of the offence. The assessment of the criminality involved, particularly in an offence where the core element is recklessness, is plainly an important aspect of the sentencing task. This is at the heart of the differences between the parties. It will require me to resolve the two areas of related primary dispute, namely the nature of the relationship between the offender and O, so far as it can be ascertained, and the state of the offender's mind, relevant to the commission of the offence. This, in turn, will require an examination of the following two questions. To what degree was the offender aware of the substantial risk represented by obtaining possession of and handing over of the ammunition to O? Secondly, why did the offender, being so aware, go ahead with the transaction? The offender's plea, of course, acknowledges that the offender was aware of the substantial risk that the ammunition was connected with preparation for, or the engagement by O, or some other person, in a terrorist act. It also acknowledges that, objectively viewed, it was unjustifiable for the offender to take that risk. The extent of the offender's awareness, however, and the nature of the subjective circumstances that made it objectively unjustifiable to take the risk, are both matters highly relevant to the assessment of objective criminality. 54 As a preliminary, it will be convenient to note one further area of agreement arising from the contents of a series of telephone intercepts played in evidence before the Court at the hearing of the sentencing submissions. The Crown has accepted that the ammunition in question was purchased by the offender as a consequence of requests made to him by O. This appears not only from the telephone intercepts, but also from the text of one particular SMS message also in evidence before the Court. I shall briefly describe the sequence of the facts relevant to this proper concession. 55 On 10 August 2005, O sent an SMS to the offender with a telephone number for the offender to contact. ("Salam Bro there is the (no) u wanted 9559.2311"). This was the number of Jansa Arms Co at Bexley. It will be recalled that this was the business which eventually supplied the offender with the ammunition. Following this, in several calls, the offender was "prompted" by O to carry out the task he had been asked to undertake. These were friendly and jocular calls, but, in their own effusive way, they were persistent. After the purchase, O rang the offender to make arrangements to collect the ammunition from him. Significantly, O spoke to the offender about the ammunition using a rather clumsy code. It is true, as Mr Turnbull submitted, that the offender was slow to pick up on the fact that a code was being used by O. But, on the other hand, it is not without significance that O felt free to use code language in this regard when he spoke to the offender concerning the ammunition the offender had bought for him. Eventually, the offender understood what was being said to him and agreed to keep the ammunition safe until it was collected the next day. It is to be assumed that O collected or was given the ammunition, but as I have earlier said, it has never been accounted for or located. This sequence of events has essentially been gleaned, as I have said, from the telephone calls, since no evidence has been given by the offender himself. 56 The phone calls, incidentally, show quite a warm and lively relationship between the two men, although O may properly be perceived as being the more dominant personality of the two. The offender, in general terms, appears to be affable and compliant towards his friend's suggestions. There is not the slightest tension between them. 57 The calls indicate that no particular pressure was put on the offender to make the purchase. Secondly, the follow-ups to the original request were made, although somewhat persistently, in a relatively leisurely manner by O. Thirdly, the entire "transaction" occurred over a period of some ten days, so it could hardly be said that it was spontaneous, or something done merely on the spur of the moment. Fourthly, the offender had ample time, had he wished to contemplate the situation more carefully, to withdraw from the transaction before the ammunition was obtained and collected by O. 58 It has not been argued on the offender's behalf that he was unaware of O's extremist sympathies. Indeed, the following concession is specifically made by the offender's legal representatives in paragraph 52 of the written submissions: - "In light of the friendship between O and the offender and their religious associations, including attendance at the same prayer hall, it is a safe inference that the offender was aware of his friend's extremist sympathies. The offender, by his plea, now accepts that the provision of bullets to O, …carried with it a substantial risk that the ammunition was connected with the preparation for a terrorist act or acts and that it was unjustifiable to take that risk having regard to the circumstances known to him being O's extremist views and desire to obtain the bullets, effectively illegally by use of Mirsad Mulahalilovic's license." 59 It is not without significance, as I have earlier noted, that O felt comfortable and easy in using a code when speaking to the offender regarding the ammunition that he wished to collect. There was a "conspiratorial" tone to the conversation. Indeed, the entire topic was generally muted throughout the various calls. Although the offender was a little slow on the uptake, the final conversation demonstrates that once he realised what O was speaking about, he was readily compliant with the suggestion that he should take care of the ammunition, keep it safe and make it available to O on the following day. 60 These conclusions regarding the relationship between the two men, and its role in the transaction, lead me next to consider the issue of the extremist material found in the offender's possession. Let me say immediately that I am not satisfied beyond reasonable doubt, as the Crown urged me to find, that the offender believed that a significant aspect of the fulfilment of the obligation to defend Islam was violent jihad involving the application of force and violence. Nor do I accept beyond reasonable doubt that the offender embraced, as part of his ideology, the killing of "infidels" or "kuffir". That said, I am satisfied beyond reasonable doubt that the offender's mindset went further than that advocated by Mr Turnbull SC on his behalf. In particular, I consider that the offender's beliefs went beyond mere "tolerance" of the views of his friend O. I think it may be safely inferred that the offender shared, to some unknown degree, a portion of the extremist views espoused by O, and that the offender was, to some extent, in the process of dabbling in, or contemplating, the possibility of taking a more extreme position himself. 61 That this is so appears to me to be a readily available inference from a number of matters. First, from the nature of the relationship itself as between the two men. It was in part a relationship based on a sharing of religious views, and of views regarding the position of Islam in world politics. Secondly, the offender did have in his possession a fair swag of extremist literature and material. In that regard, I am quite unimpressed by the submission that, because the quantity of this material was dwarfed by other more benign material in the offender's possession, it should be given little weight. Rather, I think that its possession is significant because of the very nature of the material itself. There is indeed a considerable volume of material espousing the need for good Muslims to go to the active defence of Muslims worldwide. The impact of this volume of consistently jihadist material is not to be devalued. The gruesome images, as I have described them, are particularly repellent. They do not sit at all easily with the suggestion made by the live witnesses and the character references suggesting that the offender had no interest whatsoever in violence. Nor do they sit easily with the suggestion that he was a tolerant easygoing person. No civilised person could take any pleasure in, or even tolerate, these images. But, as I have said, I am not prepared to find beyond reasonable doubt that the offender had embraced the more extremist views held by O. Rather, I consider that he was on the edge, on the brink of, being drawn into a more extremist position, and that the possession of this gruesome material is a reflection of that growing interest. It is altogether too glib to say that the offender was merely "tolerating" the views of O. The truth appears to me that, at least in some respects, he shared some of those extremist views and, by virtue of his association with O and perhaps others, he was, at the very least, contemplating the possibility of being drawn further into that extremist position. 62 I conclude therefore that the criminality involved in the present offence is not at the very low level advocated by Mr Turnbull on the offender's behalf. Of course, it must be said that it is not the most serious type of offence contemplated by this part of the legislation. In my view, however, it stands, in terms of seriousness, well above the level contended for by senior counsel. The offender undertook the activities the subject of the offence for a number of complex and inter-woven reasons. First, because of his friendship with O. Secondly, because of his sympathies with O's more extremist views, and thirdly, because he himself, to some undetermined degree, shared some of those views and was in the process of considering whether he should be drawn further into a more extremist position. I accept that the offender was, on a day-to-day basis, not a violent person nor was he a person particularly disposed to violence of any kind. He was a mild person, generally capable of toleration of other people's points of view. But world events, his embrace of Islam and the views of those with whom he was mixing were urging him or, at least, drawing him towards the embrace of a more extremist position. It is for this reason, among others, that the offence must be classified as a serious one. 63 Mr Turnbull argued that since it was not possible, in connection with the extremist material, to know when the material was collected, how often it was examined by the offender, when it was first accessed etc, that no great weight should be given to the material. Alternatively, Mr Turnbull argued that greater weight should be given to the overall tone of the telephone conversations. These, counsel argued, favoured the proposition that the offender was simply doing a favour for a friend. I consider that it is clear from the conclusions I have already reached that the offender's possession of the extremist material cannot be swept under the carpet or treated as lightly as the written submissions have attempted to do. In addition, the possession in the present circumstances of ammunition which is capable of killing or causing serious injury to people if used in a terrorist manner is another reason why this offence must be regarded as serious. I accept, of course, that no terrorist target or targets had been determined either by O or by anyone else. I accept also that the evidence falls short of demonstrating whether the ammunition was to be used directly by O or by others. These are properly matters that may be taken into account but they do not dispel or substantially dilute the seriousness of the offence. It seems to be suggested in Ms Collins' report that, despite the events of the relevant 10 day period, it did not occur then to the offender that the situation was redolent with terrorist possibilities. She suggested he was naïve, or that he simply failed to assert himself. I do not accept this view of the matter. The offender himself gave no evidence and, in those circumstances, I consider that little weight can be given to these statements in the report. The facts I have found must mean that the offender's failure to back away from the transaction at a time when he was fully aware of O's proclivities renders the offence a serious one. It is not, as I have said, the most serious of offences of this kind, but it is, nevertheless, a serious offence.

The plea of guilty 64 Mr Turnbull SC has argued that the plea was entered at the earliest "reasonable" opportunity. The plea is an important matter to be taken into account as all the authorities accept. The position in relation to the value of plea in sentencing for a Commonwealth offence in New South Wales is quite clear. The proper approach is to recognise the value of a plea of guilty by reference to the willingness of the offender to facilitate the course of justice. It is not appropriate to simply view the utilitarian value of the plea on the basis that it has saved the community the expense of a contested hearing (Tyler v R; R v Chalmers [2007] NSWCCA 247 at (110-111); R v Cameron [2002] 209 CLR 339 at (11) and following). Although the Court is not bound to state a mathematical quantification for a discount allowed on this basis, it is desirable in the present matter to demonstrate transparency in that regard. 65 I cannot accept, however, that the plea in the present matter was entered at the first available opportunity, even in the sense suggested by Mr Turnbull. It is true, of course, that the plea was entered immediately upon the presentation of a fresh indictment. Mr Turnbull's submission however, is contrary to the decision of the Court of Criminal Appeal in R v PB [2008] NSWCCA 109 at (30). A realistic view of the overall situation, however, must be taken. The presentation of the fresh indictment and the entry of the plea must be seen as a "deal" struck between the prosecutor and the offender. It is, in effect, a compromise reflecting no doubt advantages to both sides. It is, as between the Commonwealth and the offender, a compromise and resolution of the issues between them. In real terms, the Court must take account of the entire history of the matter. I have set this out earlier and there is no need for me to repeat it here. It was only when the offender's "No Bill" application had failed, and his subsequent application for a separate trial was declined, that intensive negotiations took place resulting in the compromise to which I have referred. It would be wrong to regard the plea otherwise than as a plea entered at the hearing. 66 The Crown has made it clear that an informal approach to resolve the position between the parties was made many months ago but that was not successful. It was not based on instructions nor was it posited upon any specific factual basis. I do note, however, that one very real consequence of the offender's willingness to facilitate the course of justice, as evidenced by his plea, is that the nature and prospective length of the trial involving the offender has been very significantly curtailed. The Court should reflect in its allowance a recognition that the course of justice has well and truly been facilitated as a consequence of the subjective intentions of the offender as reflected in the plea. Mr Turnbull also asked me to take into account that the conduct of the offender and his legal representatives during the pre-trial procedure has been one of generally attempting to facilitate the course of justice in a practical sense. The pre-trial procedures were long and difficult, involving the Court in the delivery of nearly 60 decisions. All the accused in the conspiracy trial were entitled to test aspects of the Crown case, and no criticism is presently offered in that regard. As I said in R v Touma (24 October 2008 at para 137) a plea of guilty may facilitate not only the ultimate objects of our system of justice, for example, the imposition of sentence and the infliction of appropriate punishment. It may also carry with it the avoidance of lengthy pre-trial hearings and matters of a similar kind. Consequently, I take into account Mr Turnbull's submissions in this regard and make allowance for the fact that, during the pre-trial procedures, the offender's legal representatives consistently took a stance that facilitated the trial in a real and commendable manner. 67 The matters I have mentioned satisfy me that the appropriate discount to be allowed for the present plea is a discount of 10 per cent. That is the discount I will apply to the sentence of this offender to recognise his facilitation of the course of justice.

Remorse and contrition 68 Mr Turnbull has submitted that current sentencing practice has emphasised that, generally speaking, a discount should also be given to acknowledge that a plea of guilty might properly be taken as an indication of remorse, contrition and an acceptance of responsibility for an offender's wrong doing. In cases involving a terrorist offence or offences, the New South Wales Court of Criminal Appeal has made it clear that, generally speaking, the more important considerations will be punishment, deterrence, denunciation and protection of the community. In that situation, the Court is entitled to ask in the present matter - to what extent has the offender stepped back from any extremist notions he may have held, or perhaps contemplated, at the time of the commission of the offence? Is the community protected from any future danger in this regard? 69 In the present matter, I accept that some allowance can and should be made for the fact that the plea of guilty may be taken, to some extent, to express remorse and acceptance of responsibility. More significantly, perhaps, the plea may be taken, at least to some degree, to be a drawing back by the offender from his interest in any extremist beliefs he may have contemplated embracing in 2005. It is obvious, however, that considerable caution needs to be taken about this aspect of the matter. This is because the offender has not given evidence before me, and the present state of his mind has not been expounded, explored or tested in any realistic way. The report of Ms Emma Collins indirectly touches upon this matter. There is also the evidence of the offender's family and associates, which suggests that the Court need have no fears for the offender's behaviour in the future. The absence of any evidence from the offender, once again, means however, that less weight can perhaps be given to this particular aspect of the assessment. 70 In the ultimate, however, I accept that the plea may be taken as a cautious indicator that the defendant has abandoned his interest in the possibility of embracing more extremist notions. It is always difficult to be certain about such a matter because the Court is required to make a prediction about the future behaviour of the accused in circumstances where the Court has not heard from the offender himself. In the circumstances, however, I propose to make an allowance or recognition of the fact that the plea may be taken to indicate that the offender is unlikely to be, or represent, a danger to the community on release. This allowance must, however, be a moderate allowance.

Other matters 71 The offender has no prior convictions in Australia or elsewhere. He has a history of hard work. He is a person who is plainly committed to making provision for his extended family. I accept that the witnesses called to testify on his behalf, and those who provided character evidence, generally regard him as a reliable, honest, hardworking and family orientated person. He is clearly sincere in his religious beliefs and those beliefs have been important during his life in rescuing him from potential problems he has had with alcohol and drugs. 72 I also take into account that the offender has been in prison now for a little short of three years and three months. His custodial situation as an AA classified person on remand has been a difficult one. There is no need for me to go into the detail of this. I have examined the position of an AA offender in R v Touma (24 October 2008) and R v Lodhi [2006] 199 FLR 364. The Crown has not suggested that it is otherwise than appropriate to take into account pre-conviction custody and I propose to make a modest allowance in that regard. (The sentence I propose to impose will require the offender to spend a further brief time in custody and I also take into account his custodial situation in that regard). 73 The final matter is the position of the offender's family. While I have very considerable sympathy for his wife and child, and for that matter his parents, I do not think that I can make any specific allowance in the sentencing process for the burdens that have been placed on his family up to the present time, or for that matter, for the future. The circumstances revealed by the evidence are unhappy ones but they are by no means extraordinary or out of the usual. They reflect the situation, commonly experienced, where a husband and provider loses his liberty because of his criminal conduct. 74 I turn finally to consider the sentence to be imposed upon the offender. I leave to one side, for the moment, the discount for the plea, although I have found that this should be allowed at a percentage of 10 per cent. Taking into account the overall objective criminality involved in the offence, and making proper and adequate allowance for the subjective and other matters I have examined, it is my view that, prior to discount, the offence warrants the imposition of a sentence of five years and three months imprisonment. This means, when the discount is allowed and applied, the sentence for the offence should be (when rounded down), for a term of four years and eight months. The sentence is to commence on 8 November 2005 and is to expire on 7 July 2010. 75 Section 19AB of the Crimes Act 1914 (Cth) requires that the Court fix a non-parole period. The purpose of the non-parole period is to provide a mitigation of the punishment of the offender in favour of rehabilitation through conditional freedom. The non-parole period, however, must itself incorporate all relevant sentencing principles, including punishment denunciation and general deterrence. 76 Section 19 AG of the Crimes Act 1914 (Cth) obliges the Court, in relation to the present offence, to fix a non-parole period at a percentage of at least three-quarters of the sentence. In my opinion, it is appropriate that the non-parole period be set at 75 per cent of the sentence. The Crown has not submitted that the Court should do otherwise and it is, in all the circumstances, appropriate that I do so. 77 The non-parole period is to commence on 8 November 2005 and it will expire on 7 May 2009. 78 Mirsad Mulahalilovic in relation to the charge in the indictment, you are convicted and I sentence you to a term of imprisonment of four years and eight months commencing on 8 November 2005 and expiring on 7 July 2010. 79 I fix a non-parole period in respect of the sentence for three years and six months, commencing on 8 November 2005 and expiring on 7 May 2009.

Explanation 80 I am obliged to explain to the offender the effect of the orders I have made. 81 Mirsad Mulahalilovic, the sentences I have imposed mean that you will be obliged to spend a minimum period in custody of three years and six months. This means that, having regard to the time you have already spent in custody, you will be eligible for first release in a little over three months time, namely on 7 May 2009. 82 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 upon parole after the 7th day of May 2009. If you are released on that day, you will remain on parole for a further period of 14 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.

16/10/2009 - Anonymisation of certain names - Paragraph(s) Various

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.

CITATION : Regina (C'Wealth) v Mulahalilovic [2009] NSWSC 1010 This decision has been amended. Please see the end of the judgment for a list of the amendments.

El Karhani (1990) 21 NSWLR 370 Faheem Khalid Lodhi v Regina [2007] NSWCCA 360 at [81] per Spigelman CJ Johnson v The Queen [2004] HCA 15; [2004] 78 ALJR 616 at [15] R v Barot [2007] EWCA Crim 1119 at [45] CASES CITED : R v Cameron [2002] 209 CLR 339 at (11) and following R v Martin (1999) 1 Cr App R 477 (at 480) R v Paull (1990) 20 NSWLR 47 R v PB [2008] NSWCCA 109 at (30) Tyler v R; R v Chalmers [2007] NSWCCA 247 at (110-111)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (31 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (8)

Cited By (3)