Said v R

Court of Criminal Appeal (NSW)|2019-06-07|Before: Hoeben CJ, White JA, Hamill J, Bellew J

Offence and sentence On 19 July 2017, the applicant pleaded guilty in the Supreme Court to a single count of making a document and the document was connected with the preparation for a terrorist act and he knew of that connection, contrary to s 101.5(1) of the Criminal Code 1995 (Cth) (the Criminal Code). This offence carries a maximum penalty of imprisonment for 15 years and a substantial fine.

On 3 November 2017, the applicant was sentenced to imprisonment for a period of 9 years and 6 months, commencing 26 May 2016 and expiring 25 November 2025, with a non-parole period of 7 years and 1 month expiring 25 June 2023.
The applicant seeks leave to appeal against that sentence on the following grounds:

Ground 2 - The sentence imposed was manifestly excessive having regard to the objective seriousness of the offence

FACTUAL BACKGROUND

The applicant adhered to the religious ideology of violent jihad. Specifically, he adhered to the religious ideology of Wahhabi-Salafism. This is the ideology that inspires ISIS (the Islamic State of Iraq and Syria), Al-Qaeda and like-minded groups and their supporters.
On 26 May 2016, when the applicant's telephone was seized under warrant on his arrest, it was found to contain the following extremist material: 1. various images of combatants and weapons; 2. images exhorting support for Muslims in custody and support for Salafi Islamic views; 3. images of young men making the ISIS finger salute; 4. an image of a letter from the British Government advising the recipient that his passport was cancelled and that he would not be permitted to leave the United Kingdom on the basis that he was believed to be intending to go to fight for Daesh ("ISIS"); and 5. many other images including what appeared to be images of Islamic preachers. During a search of his premises, amongst other material, seven compact disks of Islamic lectures were seized under warrant.
With the intention of advancing the religious ideology of violent jihad, the applicant made documents connected with preparation for terrorist acts. Those proposed terrorist attacks were recorded in handwritten documents, as set out below.

Documents

The documents, the subject of the charge, have been referred to in submissions as: 1. document 3, Item I372, the "AFP Building" document; and 2. document 5, Item I375, the "Lithgow Jail" document.
The documents were located on 18 December 2014 in the garage used by and identified as the bedroom of Sulayman Khalid (a conspirator named in related proceedings) at Berry Street, Regents Park.
Of the six handwritten documents found in Khalid's home, two contained writing by the applicant. The documents, as the applicant knew, were connected with the preparation for a terrorist act both on their face and in the circumstances of their creation. The documents demonstrated an active and real consideration of the type of terrorist act contemplated (i.e. "Istishadi" or martyrdom or heroic death, and "gorilla [sic] warfare") and its target (the "AFP building" or "the dogs"). The forensic evidence showed that the documents were handed to others, apart from the applicant. On each document writing was added by someone other than the applicant. The inference is that the documents were read, discussed and added to as discussions continued.
The "AFP building" document contained handwritten entries, the underlined portions of which were written by the applicant. The remaining sections were written by Ibrahim Ghazzawy, a conspirator named in related proceedings. The underlined portions read: "Like the brother Said, they will catch up with us anyway so same thing. Helicopters and all that so we are going to fight till shahada anyway so we might as well do something major" (footnote omitted)
The "Lithgow Jail" document contained the following writing, the underlined portion of which was written by the applicant. The underlined portion read: "Yes, but I would prefer the birthday cake orries more but if not then I'll go with what the rest of yous think. Why don't we target like a big organisation eg: headquarters of police force, ASIO etc but something massive that would get them shocked and stuff up there organisation. If we want to go all out them istishhad goes in then the rest go in to finish things off"
On 8 May 2014 the Joint Counter Terrorism Team ("JCTT") commenced an investigation named "Operation Appleby" to inquire into allegations that certain persons of interest had formed a group ("the Khalid group") and were conspiring to commit a terrorist act. The applicant was a member of the Khalid group. Other members faced or initially did face conspiracy charges in related proceedings including: 1. Sulayman Khalid; 2. IM; 3. Jibryl Almaouie (Jay/J Almaouie) 4. Mohamed Al Maouie; and 5. Ibrahim Ghazzawy.
To facilitate the conspiracy's criminal objective, Khalid organised a number of meetings at his home address at Berry Street, Regents Park with other members of the Khalid group. Khalid occupied the garage at this address, using it as his personal bedroom and place to meet.
Lawfully intercepted telephone conversations between Khalid and other members of the Khalid group show that Khalid was organising and planning meetings of the group through the use of code words and demanding to meet members in person. The interception of Khalid's mobile phone service showed that he believed his calls were being monitored.
Between 2 November and 18 December 2014, the Khalid group came together. The Crown case was that during this period the conspirators began planning the attacks outlined in the documents located at Khalid's house on 18 December 2014.
The telecommunication service of Sulayman Khalid was lawfully intercepted from 7 November 2014 to 24 December 2014. Monitoring of this service confirmed that Khalid was in regular contact with members of the Khalid group.
In each case, with the exception of one of the applicant's services, false names were used to engage the service. While recognising that in some cases the service was in a parent's name, the use of obviously false names was relied upon by the Crown as supporting the existence of the conspiracy, the purpose of subscribing in a false name being to make it more difficult to track or identify the subscriber if the call was overheard.
Telephone intercept material and physical surveillance showed Khalid contacting each member of the Khalid group and arranging meetings. Conversations between Khalid and IM often referred to their impending deaths.
Khalid increased the frequency of meetings with the members of the group from 29 November 2014 leading up to the execution of search warrants on 18 December 2014. Telephone intercept material showed coded and guarded conversations between each of the group's members that related to planning a domestic terrorist attack and to attempts to avoid detection by police.
At 7.12pm on 14 November 2014, IM called Khalid. The conversation concerned IM wanting to make a decision whether to fight overseas or commit to a domestic terrorist attack in Australia.
On 17 November 2014 and 26 November 2014, Khalid sent a long SMS message containing religious ideology to the members of his group, including the applicant. The messages were signed off by Khalid using the words "from your brother Abu Bakr". On 6 December 2014, the "banana" code (i.e. firearms) was confirmed when IM told Khalid his uncle had a "banana" licence in reference to a firearms licence. At the time, IM's uncle was a licensed owner of four firearms as follows: 1. Marlin brand rifle; 2. double barrel shotgun; 3. Carl Gustaf brand rifle; and 4. Thomson brand rifle.
At about 8:00pm on 6 December 2014, IM went to his uncle's house with the intention of ascertaining what firearms were there, and of taking possession of these firearms for the purpose of posing for photographs and sending these to Khalid. Over the next couple of hours, he posed for photographs in various positions with three of the firearms. After taking the pictures IM sent Khalid a further text message as follows "Like what time, do you want me to send you a pic of me holding the banana?" Khalid replied "No show me the banana tomoz so I can eat it as well".
On 10 December 2014, IM sent Khalid an SMS that included "I am going to get paradise though that Banana. God is great, no god but Allah." Khalid responded "are you going to stand and stay beside me" and IM responded "Inshalla yes."
On 18 December 2014, the JCTT executed search warrants at the following premises occupied by members of the Khalid group: 1. Berry Street, Regents Park, the home of Sulayman Khalid; 2. Clarence Street, Condell Park, the home of Jibryl Almaouie and Mohamed Al Maouie; and 3. Denman Road, Georges Hall, the home of "IM".
At the time the search warrant was executed, Khalid was not at home. However, other members of his family were and Khalid arrived during the search. A total of six handwritten documents that outlined plans to commit an act of terrorism were located in Khalid's home. The first handwritten document ("the torn up motorbike document") was located on the kitchen floor of Khalid's home. The other four handwritten documents ("the planning documents") were located in Khalid's bedroom inside a black suitcase.
The "torn up motorbike document" contained images and descriptions of three firearms referred to as "motorbikes". It confirmed previous coded references to "motor bikes" during conversations. The note was found on the floor and it appears to have been torn up immediately before police entered the premises. The entry was made by knocking on the door and co-operation from the occupants.
On 10 December 2015, Khalid, "IM", Jibryl Almaouie and Ghazzawy were arrested and charged. Mohamed Al Maouie was arrested on 23 December 2015. Each was advised of their legal rights under Part 1C of the Crimes Act 1914 (Cth) (the Act) and declined to participate in a record of interview.
On 26 May 2016, the applicant was arrested and charged. He declined an interview after having his legal rights explained to him. He provided his consent to a buccal swab. The applicant has been in custody since 26 May 2016.
In relation to the applicant's subjective case, he was born in January 1992 and was aged 22 at the time he committed the offence and 25 at the date of sentence. He was born in Tanzania. He was the only child of his parents but had two paternal half brothers. He lived in Tanzania with his parents until he was approximately 4 years old, before his father moved him to live locally in the care of his paternal grandmother.
The applicant travelled to Australia at age 12 years to live with his father. However, at age 14 his father went to live overseas and the applicant remained in Australia living with his father's brother, Ali Mahmoud. The applicant found it extremely difficult, both in terms of the perceived rejection by his father, as well as living with a family of whom he had no knowledge at the beginning of his adolescent years. Even so, the applicant reported experiencing a caring homely environment throughout his life and denied physical, mental or sexual abuse at any time. The applicant had not seen his father, nor had any contact with him, since the age of 18. He had maintained some contact with his mother via social media.
The applicant commenced school in Tanzania and attended an Intensive English Centre at Chester Hill before enrolling at Birrong Boys High School in Year 8. He transferred to Homebush Boys High School where he remained until Year 11. He completed the HSC at the Bankstown Senior College. He then enrolled in a college in Sydney City where he commenced a Diploma of Counselling of Community Services, which he failed to complete. This was in part due to the fact that the college was insolvent and shut down. The applicant then commenced working in the security industry at Granville and maintained that employment until the time of his arrest. The applicant performed passive security work for clients including Woolworths, Wilson Security, JB Hi-Fi and in train yards.
The applicant had been in a de facto relationship for about 13 months at the time of his arrest. At the time of sentence his partner was aged 21 years and was studying medical science at the University of Western Sydney. They had a child in September 2016. The relationship became very strained at the time of sentence. The applicant stated that his partner was unable to cope and wanted to move on with her life. This added to the applicant's sense of despair and regret, given that it was always his intention to provide a stable family life for any children he had, given the dislocated nature of his own upbringing.
At sentence the Crown did not challenge any of this evidence concerning the applicant's background.
The applicant had no juvenile or adult criminal history. The applicant did not give evidence on sentence.
On 28 May 2016 (two days after his arrest), the applicant was transferred to the High Risk Management Centre, Goulburn Correctional Complex, where he remained until the date of sentence. At the time of sentence, he was classified as an AA Extreme High Risk Restricted (EHRR) inmate. The applicant's AA classification was approved on 23 June 2016 and his EHRR designation was approved on 22 June the same year. His behaviour within the prison up to the time of sentence was either unremarkable or praiseworthy. An example was given of an occasion on 27 June 2017 when the applicant displayed self-control and discipline when a cell mate became involved in a heated discussion with a Corrective Services officer and refused a direction to move cells. The applicant removed himself from the immediate area and did not get involved despite the urging of his cell mate.

The sentence proceedings

The Crown submitted that the applicant had produced two documents, the effect of which was clear. The documents read and operated as an encouragement or incitement to engage in a major act of terror. The Crown submitted that the applicant's offending was committed in circumstances where he was well aware that others would read, discuss and consider the documents which he had prepared. The Crown submitted that the inference was overwhelming that the applicant had made the documents knowing that they would be considered in the preparation for a terrorist act.
On behalf of the applicant it was conceded that he had produced two documents in circumstances where he was fully aware that they had been left in the possession of Khalid, a man he knew to be involved in planning a terrorist act. It was also conceded that the documents written by the applicant had the capacity to influence in a material way any person who came into possession of them.
The applicant submitted that apart from Khalid, there was no evidence that anyone else had seen them or that they had been further disseminated. It was submitted that the practical utility of the documents was limited, given their brevity and the complete absence of any detail or of a specific methodology. It was submitted that the fact that the applicant had no practical experience or expertise in such matters weakened their persuasive capacity.
It was submitted that having regard to those matters, the objective seriousness of the offending could not properly be regarded as at the high end of the scale of seriousness. This was particularly so, given the non-specific and non-instructive nature of the documents. Nevertheless, it was accepted that the objective criminality was "not insubstantial" and had a real capacity to encourage others to commit potential acts of terrorism. The need for general deterrence was accepted.
The applicant submitted that the plea of guilty should be assessed as having been entered at an early date and should thus "attract a substantial discount". The applicant emphasised the absence of any criminal record and his youth.
In terms of contrition and remorse, the applicant relied upon those parts of the report of Mr Watson-Munro in which such expressions were recorded. The applicant accepted, however, that the weight which could be attributed to that evidence was limited, given not only the broad terms in which it was expressed, but also because the evidence itself was "untested hearsay".
The applicant submitted that he was unlikely to be a danger to the community when he was released. In making that submission, the applicant acknowledged that the evidence fell short of establishing that he had renounced his previously held extremist views. The applicant submitted that the fact that he had entered a plea of guilty indicated that there was some movement away from those extremist views. The applicant submitted that generally speaking the evidence pointed towards rehabilitation taking place.
The applicant submitted that his conditions of custody were very strict and should be taken into account as a mitigating factor, given that those harsh conditions were likely to continue for the entirety of any sentence which might be imposed.
By way of response, the Crown submitted that it was inherent in the offence committed by the applicant that he adhered to a particular ideology and the absence of evidence of renunciation of that ideology must have a bearing on any assessment of his prospects of rehabilitation. As had been conceded by the applicant, the evidentiary value of the report of Mr Watson-Munro was limited.

Consideration and findings by sentencing judge

His Honour found that the offending was more serious because the applicant was the author of, not one, but two separate documents. That increased his criminality over and above his co-offenders, Mohamed and Ghazzawy, who were charged with the same offence. His Honour regarded the applicant's references to doing something major and "something massive" as important. They indicated not only a level of premeditation and planning but the extent of the harm which was capable of being done by the acts about which he wrote.
His Honour accepted that the nature and extent of the publication of the documents was limited but that it was evident from what he had written that the applicant was a committed and violent jihadist. Accordingly, his Honour assessed the seriousness of the offending as high. He regarded general deterrence as an important consideration when sentencing the applicant.
His Honour then applied relevant provisions of s 16A(2) of the Act.
When applying s 16A(2)(g) of the Act to the plea of guilty, his Honour noted that it had been entered approximately two weeks before the first day of trial. In those circumstances, his Honour allowed a discount of 10 per cent.
In relation to personal deterrence, in accordance with s 16A(2)(j) of the Act, his Honour concluded that there was a strong need for any sentence to reflect the requirement for personal deterrence.
When having regard to the character antecedents, age, means and mental condition in accordance with s 16A(2)(m) of the Act, his Honour noted that the applicant had no criminal history and that the testimonials spoke positively of him. Although the applicant was only young (22 years of age at the time of the offending) his Honour found that there was no evidence that immaturity played any part in his offending. As a result, his Honour concluded that the applicant's youth had little role to play as a mitigating factor.
His Honour acknowledged that the applicant had had a difficult personal background but that he was not in need of any treatment and had support from his guardians.
His Honour accepted that the applicant's conditions of custody would be harsh and his Honour took that matter into account as a mitigating factor.

Ground 1 - The sentencing judge erred by failing to take the utilitarian value or benefit of the applicant's guilty plea into account

It was common ground that his Honour delivered judgment before this Court delivered its decision in Xiao v R [2018] NSWCCA 4; 96 NSWLR 1 (Xiao v R). The effect of the decision in Xiao v R was that in sentencing for a Commonwealth offence, the Court can take into account by way of discount the utilitarian value of a guilty plea. That approach was confirmed in Jinde Huang aka Wei Liu v R [2018] NSWCCA 70 at [9] when the Court held that a failure to have regard to the utilitarian value of a plea of guilty when sentencing for Commonwealth offences amounts to an error.
In those circumstances, the Crown accepted that this Ground of Appeal had been made out and that in accordance with the guidance provided by Kentwell v The Queen [2014] HCA 37; 252 CLR 601 it will be necessary for this Court to independently exercise the sentencing discretion afresh.
In those circumstances, there is no requirement for the Court to consider the second Ground of Appeal, which raises manifest excess. The same issues raised in that ground will need to be considered when this Court re-exercises the sentencing discretion. When engaging in that process, it will be necessary for this Court to have regard to the considerations raised by s 16A of the Act.

Resentence

When making submissions about the circumstances and nature of the offence (s 16A(2)(a)) the applicant noted that the yardstick presented by the maximum penalty for the offence was imprisonment for 15 years. The applicant accepted the importance of this yardstick in that it indicated a legislative objective of suppressing the making of documents connected with preparation for terrorist acts.
The applicant submitted that despite that legislative intent, attention had to be given to the actual documents prepared by him. He submitted that the volume of information contained in the two documents was small and consisted of but three brief paragraphs. He submitted that the documents were general, vague and contained little detail. The applicant contrasted these documents with those in Faheem Khalid Lodhi v Regina [2007] NSWCCA 360; 179 A Crim R 470 (Lodhi v Regina) where the documents included two maps of the Australian electricity supply system.
The applicant submitted that the detail in these documents did not go beyond the mere existence of the organisations referred to, i.e. the Police Force and the Australian Security Intelligence Organisation (ASIO). The applicant submitted that he did not devote any skill or industry to the construction of the documents. While he accepted that the nature and extent of the harm capable of being caused by the acts within the documents was significant and that they might have the capacity to inspire others, he submitted that as instructive documents connected with a potential terrorist attack they were largely useless. Moreover, the capacity of the documents to influence others was limited.
The applicant submitted that it was in his favour that there was no dissemination of the documents beyond the immediate persons associated with the Khalid group. The applicant submitted that it was not without significance that the documents were located in Khalid's bedroom inside a black suitcase. He submitted that it was extremely unlikely that there was any intention to widely publish either of the documents.
The applicant submitted that the offence was committed over a relatively short period of time, i.e. between 17 and 18 December 2014. He submitted that no real planning went into the creation of the documents by him.
Having regard to the guilty plea in accordance with s 16A(2)(g), the applicant submitted that the plea itself indicated that he had made some movement away from his previously held extremist ideology. He submitted that although the plea was entered at a relatively late stage in the proceedings, it was still entered well before the trial was due to commence. In those circumstances, the applicant submitted that a discount of greater than 10 per cent for its utilitarian value was warranted.
On that issue, the applicant relied upon Huang v R [2018] NSWCCA 57 at [100] where McCallum J said: "100 I agree that, in quantifying the discount allowed for the utility of a plea in this context, some guidance might be drawn from the decision in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [152] to [154], so long as care is taken not to elevate the guideline stated in that decision to the status of a judicially-determined norm for offences against Federal law. There is much to be said for taking a consistent approach in respect of State and Federal offences, but it must always be borne in mind that s 16A of the Crimes Act 1914 (Cth) requires the sentencing court to "impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence", which the Court in Hili at [25] construed to mean the particular offence for which a sentence is to be imposed, with all its individual features."
The applicant submitted that another reason why the discount for the plea of guilty should be increased beyond 10 per cent was that three of his co-offenders (Sulayman Khalid, Jibryl Almaouie and IM) received discounts of 10 per cent in circumstances where their pleas were entered at a later time, i.e. on the date fixed for trial, after lengthy case management and after pre-trial arguments were completed.
The applicant submitted that the provisions of s 16A(2)(h) were relevant in that he had co-operated with law enforcement agencies when he provided his consent to a buccal swab.
The applicant submitted that when s 16A(2)(m) was considered, it was clear that his character, antecedents and age demonstrated that he was a person of previous good character with no criminal record. He submitted that although his education was sporadic, he had maintained a relatively solid work history including the 17 months period between the commission of the offence and his arrest. The applicant submitted that at 22 years of age, he was a relatively young man. He had formed a de facto relationship and at the time of sentence his partner was expecting their first child. The applicant submitted that the commission of this offence could reasonably be viewed as an aberration.
The applicant submitted that his prospects of rehabilitation, pursuant to s 16A(2)(n) were good. He relied upon his age (27), his lack of criminal antecedents, his prior good character, his solid work history and the significant delay between the commission of the offence and his arrest during which time he did not in any way seek to continue to engage in any illegal activity. The applicant also relied upon his favourable prison record and good behaviour while incarcerated under very harsh conditions.
The applicant submitted that a sentence of the kind which had been imposed by Bellew J was manifestly excessive in the sense of being unreasonable or plainly unjust. The applicant submitted that the unreasonableness of the sentence could be seen by reference to the s 16A considerations which he relied upon.
In further support of that proposition, the applicant relied upon the sentence imposed in Lodhi v Regina which was 10 years imprisonment for a much more sophisticated and planned terrorist attack.
The applicant submitted that in all the circumstances a lesser sentence was warranted.

Consideration

While there is considerable force in some of the matters raised by the applicant, no real challenge was made to the findings of fact by the sentencing judge. His Honour accepted that the nature and extent of publication of the documents was limited. Nevertheless, his Honour considered it evident from what the applicant had written that he was a "committed and violent jihadist". His Honour held that the objective seriousness of the offending was high and this finding has not been challenged.
His Honour noted that the applicant was the author of two documents which increased his criminality over and above that of co-offenders such as Mohamed Rashad Al Maouie (who authored only one) and of Ghazzawy. His Honour considered that the words that the applicant wrote in each document, in particular the references to doing "something major" and "something massive" went to the degree of premeditation and the extent of the harm that could be caused by the acts written.
While it was open to his Honour to conclude that the plea of guilty might be seen as some movement away from previously held ideology, the issue of remorse and acceptance of responsibility could not be put any higher than that. This was particularly so when the applicant did not give evidence as to those matters. It is not without significance that in the sentence proceedings counsel for the applicant conceded that: "[t]he evidence fell short of establishing that [the applicant] had renounced any previously held extremist ideology." (Judgment [303])
The fact that the applicant did not give evidence on sentence was important. On that issue his Honour's comments when sentencing IM (IM v R [2019] NSWCCA 107 at [20]) are pertinent: "20 In a series of decisions this Court has made clear that if offenders do not give evidence in a sentencing hearing and are not tested about assertions made to others which are relevant in determining an appropriate sentence, that material, whilst admissible, must be treated with very considerable caution (see R v Qutami [2001] NSWCCA 353 at [58] (Smart AJ); (2001) A Crim R 369). Ordinarily such evidence should be given very limited weight …"
The applicant's submissions as to why he should receive a discount of greater than 10 per cent for his plea of guilty when one has regard to three of his co-offenders receiving the same discount, are not persuasive. All of the pleas of guilty were late pleas. None of them were entered at the first reasonable opportunity. In the applicant's case, the plea was entered 12 days before the start of a six week trial. This clearly limited the utilitarian value of the plea. The prosecution still had to fully prepare the trial and the court system had to fully engage in accommodating a six week trial up until the plea was entered. The fact that the pleas of guilty of his co-offenders may have been entered somewhat later, does not provide a basis for successfully arguing that his Honour wrongly exercised his discretion in awarding a discount of 10 per cent to the applicant. His Honour was not in error in failing to draw the fine distinction sought to be made by the applicant as between himself and some of his co-offenders.
In the circumstances, and in re-exercising the sentencing discretion, I have concluded that a discount of 10 per cent for the utilitarian value of the plea of guilty is appropriate.
In his submissions, the applicant emphasised the comparative simplicity of the documentation and argued that its objective seriousness should be significantly discounted as a result. This submission should not be accepted. The seriousness of the contents of a document cannot be measured by how many words are written, nor by a lack of sophistication of expression. It is trite to observe that a very serious threat can be conveyed in a few words. Here, the applicant wrote "We are going to fight to Shahada" meaning martyrdom, death of a martyr or heroic death. He also wrote "So we might as well do something major". On the same theme, in the second document, he wrote about targeting a "big organisation" such as Police Headquarters or ASIO, i.e. "something massive that would get them shocked".
It is clear from those extracts that the comparative simplicity of expression did not obscure the high objective seriousness of the content of the documents. Each target of the proposed killing, the building and type of building specified in the documents were part of the machinery for maintaining law and order in society. The content of the documents was directed at a substantial disruption of part of the machinery of government.
The applicant clearly knew that the documents were connected with preparation for a terrorist act, both in their content and in the circumstances of their creation. The Agreed Facts (AF) which was before the Court on sentence made this clear: "The documents demonstrate an active and real consideration of the type of terrorist act contemplated ("Istishadi" or martyrdom or heroic death and "gorilla warfare") and its target (the "AFP Building" or "the dogs")." The forensic evidence shows that the documents were handed to others, apart from the author. On each document writing was added to that document by someone other than the applicant. The inference is that the documents were read, discussed and added to as the discussion continued." (AF [5])
Against that background, it is not to the point that the precise act or acts of terrorism and their timing had not been resolved, or if there had been a decision, was not set out in the documents.
As is apparent from their content, the documents were planning documents and were not prepared for instruction of others outside the Khalid group. The inference in the AF that they were read, discussed and added to as the discussion continued is important. It is consistent with the concession made by the applicant's counsel in the sentence proceedings to the effect that the applicant's offending "had a real capacity to bolster others in their own potential acts of terrorism". (Judgment [287])
In relation to the planning that went into the creation of the documents, it is an appropriate conclusion on re-sentence (as his Honour held) that the references to doing "something major" and "something massive" indicated a level of premeditation and planning, i.e. that the act should be of a martyrdom type so that the documents operated as an exhortation to the members of the group to bring about the result referred to, i.e. something "major" and "massive".
It follows from the above that I assess the objective seriousness of the offending as high. As the Crown submitted in this Court, the threat posed by these documents was not only their function as planning documents but how they operated as an exhortation to the group to engage in a major terrorist activity. Looked at in that way, the fact that the documents were only disseminated to the Khalid group does not necessarily reduce the seriousness of the offending. The applicant was in effect urging his colleagues as a group to carry out a major attack and not be content with a single attack. The limited dissemination of the material in the documents added to the seriousness of the offending in that there was a greater likelihood of them being acted upon by a small group. This is to be contrasted with the unlikelihood of them being acted on if they had been widely published.
In relation to the re-sentence process generally, I have taken into account the applicant's good behaviour while in prison. I have taken into account that in relation to terrorist offences, the Court's object in passing sentence is to "punish, deter and incapacitate: rehabilitation is likely to play a minor (if any) part" (Lodhi v Regina at [89]). I have also taken into account that in circumstances where the protection of the community, the punishment of the offender, denunciation of the offence and deterrence are important sentencing factors, the subjective circumstances of an offender must necessarily be given less weight.
I have taken into account the applicant's depressive disorder, his difficult personal background and his onerous conditions of custody. I have taken into account the limited number of cases involving offences of this kind so that there is no sentencing pattern disclosed by the authorities and that the applicant has to be re-sentenced in accordance with the particular facts applicable to his case.
Exercising my own independent judgment in the light of all these circumstances, I consider that an appropriate sentence is imprisonment for 9 years with a non-parole period of 6 years and 9 months. Accordingly, the orders which I propose are: 1. Leave is granted to the applicant to appeal against sentence. 2. The appeal is allowed. 3. The sentence imposed by Bellew J on 3 November 2017 is quashed. 4. In lieu thereof, the applicant is sentenced to imprisonment for a period of 9 years, commencing 26 May 2016 and expiring 25 May 2025, with a non-parole period of 6 years and 9 months, expiring 25 February 2023.
WHITE JA: I agree with the orders proposed by Hoeben CJ at CL and with his Honour's reasons. As Hamill J takes a different view, I add the following to explain my concurrence with Hoeben CJ at CL.
I agree with Hoeben CJ at CL's assessment that the objective seriousness of the applicant's offending is high. With respect to Hamill J it is not to the point that the documents the applicant prepared lacked sophistication or were not widely distributed. They reached their intended target and there is no reason to think that their lack of sophistication would have lessened their persuasive force. The applicant was urging his co-offenders to commit terrorist acts on a large rather than small scale. If carried out, they could be expected to result in multiple casualties.
It is true that the applicant was not to be sentenced for any of the more serious offences with which he was not charged. Nor was he. The fact that he was not charged with more serious offences does not detract from the serious level of criminality of the offence with which he was charged.
Hoeben CJ at CL concludes that in re-exercising the sentencing discretion, the appropriate discount for the applicant's plea of guilty is 10 per cent to allow for utilitarian value of the plea (at [75]). The sentencing judge allowed a discount of 10 per cent not for the utilitarian value that the plea saved the expense of a contested hearing, but (presumably) as demonstrating subjective mitigating factors, such as remorse, acceptance of responsibility or willingness to facilitate the course of justice (Judgment [105]). IM was also allowed a 10 per cent discount on sentence for the plea of guilty (Judgment [222]). As Hoeben CJ at CL observes IM's plea was made on the first day of trial. The applicant's plea was made some 12 days earlier.
On IM's appeal against sentence (IM v R [2019] NSWCCA 107) Meagher JA, with whom R A Hulme and Button JJ agreed, allowed a discount of 10 per cent for the utilitarian value of IM's late plea of guilty. His Honour also noted that the plea was an acceptance by IM of responsibility for his crime and consistent with his being contrite. His Honour took those aspects of the plea into account as part of IM's overall subjective case (at [62]).
Hoeben CJ at CL adopts a similar approach. I agree with it. I agree with Hoeben CJ at CL that the applicant is not entitled to a discount of more than 10 per cent because his plea was entered 12 days before the start of the trial, whereas the guilty pleas of his co-offenders were not made until the first day of the trial. The trial still had to be prepared and court resources allocated.
I agree with Hoeben CJ at CL (at [72]) that the plea of guilty cannot be seen as more than some movement away from previously held ideology. Particularly in the absence of the applicant's giving evidence, rather than showing genuine contrition or remorse I would see it as no more than a belated acceptance of the inevitable.
I acknowledge the strength of the subjective factors referred to by Hamill J at [95]. Notwithstanding the powerful subjective factors to which Hamill J has referred, I think the seriousness of the criminality does not warrant a sentence of less than 10 years prior to a discount for the guilty plea. Accordingly, I agree with the orders proposed by Hoeben CJ at CL.
HAMILL J: I have had the advantage of reading the draft judgment of Hoeben CJ at CL. I agree with the Chief Judge that the respondent's concession that error is established must be accepted. The sentencing Judge did not have the benefit of this Court's decision in Xiao v R [2018] NSWCCA 4, a case decided some months later, and as a result there was an error in failing to provide the applicant with a discount for the utilitarian value of his plea of guilty. His Honour's approach accorded with the law as it was understood at the time. Accordingly, it is necessary for this Court to exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. There is no single correct sentence and, having considered the relevant facts and circumstances, I have reached a different conclusion to that of Hoeben CJ at CL as to the appropriate sentence.
I would give greater weight to the applicant's subjective case, the details of which are set out in the judgment of Hoeben CJ at CL at [29]-[35] and [50]-[52]. I would give substantial weight to the applicant's youth, his dislocation from Tanzania and his family difficulties, including the fact that he was separated from his mother and then essentially deserted by his father in Australia. I consider that the depressive disorder and good conduct and efforts while in custody are significant factors. I also take into account the onerous conditions of incarceration under which offenders charged with and convicted of terrorism offences are held.
Hoeben CJ at CL assesses the objective criminality as "high". While the offence was serious, my assessment is that it falls well below the most serious offending caught by s 101.5 of the Criminal Code Act 1995 (Cth). The limited distribution of the documents and their lack of sophistication are relevant considerations, notwithstanding the matters referred to by the Chief Judge at [76]-[79]. While the surrounding circumstances, and the activities of the Khalid group, were important in placing the two documents upon which the charge was based in context, the applicant was not to be sentenced for any of the more serious offences created by Divisions 1 and 2 of the Criminal Code Act 1995. For example, he was not to be sentenced for conspiring to commit a terrorist act (an offence carrying life imprisonment) or directing the activities of, or recruiting members for, a terrorist organisation (offences carrying 25 years imprisonment). Nor do those surrounding activities support a finding that the objective gravity was high because there was any particular degree of planning and premeditation in the creation of the documents. The appearance of the documents points in the opposite direction.
In determining an appropriate sentence, I remain conscious of the maximum penalty of 15 years and the authorities that stress the importance of deterrence in sentencing for terrorism related offences. I have considered, where relevant, the matters set out in s 16A of the Crimes Act 1914 (Cth) but I do not propose to catalogue those matters. They are set out in the judgment of Hoeben CJ at CL by reference to the careful judgment of Bellew J at first instance.
I would commence with a starting point of 8 years. This is more than half of the maximum penalty for a first offender aged 22 years. I would allow a discount of slightly more than 15% for the utilitarian value of the plea of guilty. There would be a total sentence of 6 years and 8 months. By operation of s 19AG of the Crimes Act 1914 (Cth), the non-parole period must be at least 75% of the total sentence and I would impose a non-parole period of 5 years. Accordingly, the orders I favour are: 1. Leave to appeal granted. 2. Allow the appeal. 3. Quash the sentence imposed by Bellew J on 3 November 2017 and in lieu thereof: 4. The applicant is sentenced to imprisonment for a period of 6 years and 8 months commencing 26 May 2016 and expiring 25 January 2023, with a non-parole period of 5 years, expiring 25 May 2021.

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