The Queen v Abbas, Chaarani & Mohamed [2019] VSC 775

1 Hamza Abbas, Abdullah Chaarani and Ahmed Mohamed, after a lengthy trial,[1] you were each convicted of conspiring between 21 October 2016 and 22 December 2016 with one another, and Ibrahim Abbas (hereafter referred to as Ibrahim), to do an act or acts in preparation for or planning a terrorist act. Your crime was a contravention of ss 11.5(1) and 101.6(1) of the Criminal Code (Cth).

2 Consistent with the jury's verdicts, and the case presented against each of you by the prosecution, I find that you, Chaarani and Mohamed, entered into the alleged conspiracy with Ibrahim in late October 2016. You, Abbas, joined the conspiracy in early December 2016. All of you were arrested on 22 December 2016 and have been in custody since that date.

3 In the lead up to and during the period of the conspiracy, each of you, to a greater or lesser degree, accessed materials on the Internet supportive of Islamic State ('IS') and violent jihad. That each of you entered into the alleged conspiracy satisfies me that each of you ultimately embraced IS's hateful ideology. Your views were so warped by IS ideology that you came to believe that the mass slaughter of innocent civilians in the city of Melbourne, on or about Christmas Day 2016, would be a glorious act, pleasing to Allah. The stupidity of that belief was only matched by its malevolence.

4 In the charge on the Indictment, the terrorist act was described, relevantly, as follows:

An action ... involving the detonation of an improvised explosive device or devices and/or the use of bladed weapons and/ or the use of a firearm or firearms in or around the city of Melbourne, in an area in which people were likely to congregate.

(a) purchasing chemical, explosive substances and mechanical and electrical components for use in the manufacture of improvised explosive devices (IEDs);

(b) taking steps towards manufacturing and testing IEDs;

(c) purchasing bladed weapons;

(d) taking steps to gain access to firearms; and

(e) conducting reconnaissance of potential target areas of Federation Square, Flinders Street Train Station and Saint Paul's Cathedral.

6 Each of you, and Ibrahim, not only conspired to do acts in preparation for a terrorist act but, to a greater or lesser degree, actually carried out preparatory acts. I will briefly describe the more significant of those preparatory acts under the following headings: IEDs, firearms, bladed weapons and reconnaissance.

7 There were a number of steps taken by you in relation to IEDs.

8 First, you, Chaarani and Mohamed, accessed instructions for making IEDs.

9 On 10 October 2016, you, Chaarani, took photographs of bomb-making instructions published in an online terrorist magazine called Inspire. The Inspire article was titled 'Make a bomb in the kitchen of your Mom'. The instructions specified a number of materials and components for an IED, including an inflammable substance (such as match heads, cartridge gunpowder or fireworks powder), a decoration lamp, iron pipe, a 9-volt battery, electrical wire and shrapnel (such as steel pellets or small nails).

10 On 11 October 2016, you, Mohamed, stored on your phone a copy of the Inspire magazine containing those same bomb-making instructions.

11 On 19 October 2016, you, Mohamed, accessed YouTube videos depicting the ignition of party sparklers. You also sent a link to the video 'How to build a 5000 sparklers bomb' to a WhatsApp Group including Chaarani.

12 On 26 November 2016, IS released a video titled 'You must fight them, O Muwahid', which contained instructions on how to make an IED using the highly explosive substance triacetone triperoxide ('TATP'), one of the ingredients of which is hydrogen peroxide. On 28 November 2016, you, Mohamed, accessed that video.

13 Second, you, Abbas and Mohamed, were involved in the acquisition of materials for making IEDs.

14 On 21 November 2016, you, Mohamed, along with Ibrahim, purchased, from Bunnings in Broadmeadows, 300 Red Ramset cartridges (which contain gunpowder and are used in nail guns), 2 pipe pieces, 1 pipe end and 1 pipe plug.

15 On 2 December 2016, you, Abbas and Mohamed, and Ibrahim, attended a Chemist Warehouse together to purchase a bottle of hydrogen peroxide, which, as mentioned, is used in the production of TATP. Ibrahim remained in the car while you, Abbas and Mohamed, went into the store and you, Mohamed, paid for the item.

16 On 22 December 2016, you, Mohamed, purchased another 700 Red Ramset cartridges at Bunnings Broadmeadows.

17 Third, you, Chaarani and Mohamed, were involved in making and/or attempts to make IEDs.

18 On 23 October 2016, you, Mohamed, asked Chaarani, in an intercepted telephone conversation if he had any screws or nails. I find that you wanted nails or screws for shrapnel as suggested in the Inspire article to 'Make a bomb in the kitchen of your Mom'. I find that you both spent many hours together that afternoon and evening constructing or attempting to construct an IED.

19 On 21 November 2016, after the purchase of the 300 Red Ramset cartridges and pipe pieces from Bunnings, I find that you, Mohamed, and Ibrahim, made or attempted to make an IED with tools including a drill that you sourced from Chaarani, as indicated in an intercepted telephone conversation with him that afternoon.

20 On 2 December 2016, as previously mentioned, you, Mohamed, purchased hydrogen peroxide.

21 On 4 December 2016, in an intercepted telephone conversation, you, Mohamed, told Chaarani this:

... you know, the - the yesterday thing at my house? .... It's - it's - there's nothing, there's no difference, bro, it's - it's the same thing. There's no improvement, nothing ... I was so happy this that. I'm opening the fridge, I'm like, far, same thing. Disappointed, bro. Very disappointed.

22 I find that it was a failed attempt to make TATP that was causing you so much disappointment.

23 Your attempts did not all end in disappointment. You, Chaarani and Mohamed, admitted in testimony at your plea hearing that you successfully made a working IED.

24 Fourth, the three of you, and Ibrahim, were involved in testing IEDs.

25 As already mentioned, on 21 November 2016, you, Mohamed, with Ibrahim, purchased 300 Red Ramset cartridges and pieces of pipe at a Bunnings store. Later that night, you, Chaarani and Mohamed, and Ibrahim, drove to Clonbinane in Ibrahim's car. This was the first of three trips that you made to that remote spot late at night.

26 The prosecution alleged during your trial that Clonbinane was where you tested your IEDs. At your trial, you denied that that was the purpose, but at your plea hearing, you, Mohamed[2] and you Chaarani,[3] admitted that that was indeed the purpose of your visits to Clonbinane.

27 The second and third attendances at Clonbinane occurred in the early hours of 1 and 2 December 2016. You, Abbas, accompanied your co-conspirators on the third occasion. Ibrahim told Mohamed in an intercepted conversation that night that you wanted to come with them for 'the lesson'. Despite you, Mohamed, initially expressing misgivings to Ibrahim about involving Abbas, he quickly won your trust, with you commenting to your wife that night in an intercepted telephone conversation that Abbas had the same religious doctrine as you.

29 You, Chaarani, encouraged by you, Mohamed, took steps towards obtaining a firearms licence and you, Abbas, also showed some interest in that regard.

30 On 8 December 2016, you, Chaarani and Mohamed, messaged each other about steps you, Chaarani, were taking to get a firearms licence. You, Mohamed, were impatient with Chaarani's progress. You, Chaarani, registered your interest with the relevant government department in relation to hunting pest animals on Crown land as a precursor to getting a firearms licence.

31 On 14 December 2016, you, Mohamed, viewed an advertisement on Facebook for the sale of five Adler brand lever-action shotguns.

32 On 14 December 2016, you, Abbas, undertook a number of Google searches regarding obtaining a firearms licence and downloaded the Victorian Firearms Application Form for Category A and B firearms from the Victoria Police Licensing and Regulation Division website.

33 On 17 December 2016, you, Abbas, again downloaded the Victorian Firearms Application Form for Category A and B firearms.

34 On 20 December 2016, you, Chaarani, rang Sunbury Police Station and enquired about registering for a firearms course.

36 On 4 November 2016, you, Chaarani, received an email from Ebay in relation to a Muela Mirage brand hunting knife and leather sheath. The email indicated that you, Chaarani, had recently viewed the item and enquired whether you would like to look further at that knife and suggested other knives which might be of interest to you. A Muela Mirage hunting knife was seized from your premises, Chaarani, after your arrest.

37 On 21 December 2016, you, Chaarani, and Ibrahim attended 'Boating Camping Fishing' in Coburg where you purchased two Gerber machetes which you said you wanted for hunting. When Ibrahim dropped you at home, you retained one of the machetes.

38 I turn now to reconnaissance of locations in the CBD for a terrorist attack.

39 On 20 December 2016, you, Mohamed, told Chaarani in an intercepted conversation that 'we need to go to - to the city for a drive ... after we finish training, do you reckon? ... there'll be no traffic then.' You_,_ Chaarani, said 'Yeah, all right ...' You, Mohamed, said 'Bro, this is more important than anything else ... if you've got any plans, cancel because, by Allah, this is very important, very, very important. We're running out of time.' You, Chaarani, replied, 'Oh okay, okay, no worries.'

40 The three of you, and Ibrahim, met up at the Hume Islamic Youth Centre ('HIYC') at approximately 6.30pm. You spent some time walking and talking together outside HIYC then travelled together in Chaarani's car to the CBD where you all got out of the car and spent time reconnoitring Federation Square, Flinders Street Station and St Paul's Cathedral. At one point, CCTV captured Ibrahim making a chopping motion to the neck of one of you. By his own admission at your trial, he was demonstrating how easy it is to kill someone with a blade.

41 I turn now from that brief summary of your more significant preparatory acts to a comparison of the roles you each played in the conspiracy, beginning with you, Abbas.

42 As mentioned, you joined the conspiracy in early December 2016, comparatively late in the piece. You were recruited by your brother, Ibrahim. During the three weeks you were involved, you were not as active as Chaarani or Mohamed, but you were involved in three significant events. First, you attended Clonbinane in the early hours of 2 December 2016 for "the lesson", namely the testing of an IED. Second, you accompanied Mohamed and Ibrahim to a Chemist Warehouse on the afternoon of 2 December 2016 for the purpose of purchasing hydrogen peroxide which could be used to make TATP. Third, you accompanied your co-conspirators to Federation Square on 20 December 2016 for a reconnaissance of a possible location for an imminent terrorist attack. Your participation in the conspiracy extended over three weeks, a not insignificant period of time.

43 Turning to you, Chaarani, the evidence at the trial indicated clearly that you were an active player in the conspiracy over the entire two months of the conspiracy. You provided equipment for the production of IEDs. I note that police located components and ingredients for explosive devices at your home when they executed a search warrant there on 22 December 2016. You attended Clonbinane where IEDs were tested. You took steps to obtain a firearms licence and you acquired bladed weapons: police found the Gerber machete and a Muela Mirage hunting knife at your house. You also attended Federation Square for the purposes of reconnaissance. Your role, Chaarani, was more significant than Abbas' role.

44 Like Chaarani, you, Mohamed, were an active participant in the conspiracy for the whole two months. You purchased a total of 1000 Ramset Red cartridges. You purchased the bottle of hydrogen peroxide on 2 December 2016. You made IEDs. You attended Clonbinane three times for the purpose of testing IEDs. You encouraged Chaarani to get a move on with his firearms licence application. You conducted reconnaissance of Federation Square with the others.

45 You suggested at your plea hearing that you were lower in the hierarchy of conspirators than Ibrahim. You testified at your plea hearing that you met him about a month before you were arrested. You claimed in relation to the present offending that you felt like a 'chicken' to say no to Ibrahim and that you would 'go along with him a little ... keeping in mind that um he's just a guy that I don't know ... and he'll go away'.[4] This does not square with the evidence at your trial about your long-term enthusiasm for IS, your numerous acts in preparation for the contemplated terrorist act and your interactions with your co-conspirators. You were no subordinate of Ibrahim. Neither was Chaarani. I find that you and Chaarani were on a par with Ibrahim in terms of your roles in the conspiracy, even if you, Mohamed, were outwardly more nervous than Ibrahim as the contemplated terrorist attack drew near.

46 The offence of which you have each been convicted carries a maximum penalty of life imprisonment.

47 Yours is an upper range example of the offence for several reasons.[5]

48 First, the preparatory acts referred to above were done in contemplation of mass slaughter.

49 Second, that mass slaughter was to occur in the heart of the city of Melbourne to maximize terror.

50 Third, that mass slaughter in a very public place was to occur at a time of particular significance to many Australians - Christmastime.

51 Abbas, your involvement was for a lesser period than Chaarani and Mohamed (three weeks compared with two months), but given the nature of this conspiracy, and the fact you participated in attendances at Clonbinane, Chemist Warehouse and Federation Square during that time, I consider that yours, too, is an upper range example of the offence.

52 I now wish to refer to a number of general sentencing principles, after which I will refer to sentencing principles specific to terrorism offences.

53 Senior counsel for you, Chaarani, cautioned me against sentencing you and the others for an offence different to the one for which you were charged and convicted.[6] You were not charged with or convicted of conspiring to do a terrorist act; you were charged with and convicted of conspiring to do an act or acts in preparation for or planning a terrorist act. I accept that were I to sentence you on the basis that you intended to carry out a mass slaughter, I would be sentencing you for a different offence than the one you were convicted of. However, the assessment of the gravity of your offending is, according to authorities which I will refer to shortly, properly informed by my finding that the terrorist act you were contemplating, as you went about doing acts in preparation pursuant to the conspiracy, was a terrorist act involving mass slaughter in a very public place at a very significant time.

54 In sentencing you for this conspiracy, I bear in mind what the Court of Appeal said in DPP v Fabriczy[7] at [17]:

The extent of the offender's participation in the combination, established by reference to his or her individual acts and declarations, will inform but not determine the conclusion as to the offender's degree of criminality. The individual offender is to be punished for involvement in the conspiracy and not just for the acts that he or she performed. The sentencing judge therefore needs to assess, for the purpose of sentencing the individual conspirator, the 'content and duration and reality' of the conspiracy, and what is actually done in transaction of it, as well as the role of the offender before the court (footnotes omitted).

55 I now turn to the principle of parity in sentencing co-offenders. This is, of course, relevant because there are three of you to be sentenced for being party to a conspiracy, but also because Ibrahim, who was the fourth member of the conspiracy, pleaded guilty to the same offence and was sentenced by Tinney J on 24 July 2019 to 24 years' imprisonment with a non-parole period of 20 years.

56 The principle of parity does not mean you should all receive the same sentence. As Dawson J stated in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 623:

[W]here the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and ... any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.

57 There are a number of matters relating to Ibrahim's offence which I should mention.

(a) He participated in the conspiracy for the entire two months. Tinney J found he was 'an enthusiastic, committed an important member of [the] criminal group'[8] and 'a more or less equal participant' with you, Chaarani and you, Mohamed;[9]

(b) the terrorist act which he contemplated, and for which he was making preparations as part of a team, was one that would involve 'causing maximum death, damage, and fear.'[10] As he said in his first recorded interview with police, 'So my goals, okay, were to cause as much chaos, destruction, fear, bloodshed, that was my goal ...'(Q 719).[11]

(c) He alone recruited you, Abbas,[12] which Tinney J rightly described as a 'significant aggravating feature'.[13]

(a) Ibrahim received a discount on his sentence for 'modest past cooperation'[14] with the authorities. He made admissions in his recorded interview with police (although he told many lies and he told you later in an intercepted prison cell conversation that he had admitted to the conspiracy so as to assert his religion and 'let them know' that he was 'genuine, pure, Islamic State here in their own country').[15]

(b) Ibrahim pleaded guilty at the earliest reasonable opportunity. He did not cross-examine witnesses at the committal and at the conclusion thereof he entered a plea of guilty.[16] He pleaded guilty to a plea indictment on 6 February 2018 (but Tinney J was not satisfied that the plea of guilty was indicative of remorse[17]).

(c) Ibrahim had no criminal antecedents.

(d) Ibrahim was 22 years old at the time of the offence (although Tinney J said that he was a mature 22 year old and that his youth was of reduced significance because of the nature of the crime[18]).

60 Unlike Ibrahim, you do not get the benefit of a significant discount for having pleaded guilty at the earliest reasonable opportunity, but you, Chaarani and Mohamed, do get the benefit of having given evidence at your plea hearing publicly renouncing IS and violent jihad. You also get the benefit of having finally admitted your guilt in the course of that testimony; by doing so, you effectively forfeited your right of appeal against conviction. I find that that these two developments support a finding in your favour, on the balance of probabilities, that both of you are genuinely on the path of de-radicalisation. I note that Tinney J, for good reason, was not prepared to make such a finding in relation to Ibrahim.[19]

61 I do not consider that this finding that you, Chaarani and Mohamed, are genuinely on the path of de-radicalisation entitles you to the same discount you would have received if you had pleaded guilty at the earliest reasonable opportunity (as Ibrahim did) but it is deserving of a significant discount.

62 I bear in mind that neither of you were responsible for recruiting Abbas, which Tinney J described as a significant aggravating feature in Ibrahim's case, but, even adding that into the mix, I consider that the two of you should receive a sentence higher than that imposed on Ibrahim.

63 You, Abbas, will receive a lesser sentence than your co-conspirators, including Ibrahim, because you had a much lesser role in the conspiracy. You were only actively involved for a couple of days of the last three weeks of the conspiracy. Whilst you were present for the third trip to Clonbinane, the purchase of hydrogen peroxide from Chemist Warehouse and the reconnaissance of Federation Square, your contribution to the preparations and planning for a terrorist act was, in my view, of limited significance.

64 But that is not to say it was insignificant. There is strength in numbers. By joining the conspiracy, you increased the chances of the terrorist act occurring and the capacity of the group to cause mayhem when the contemplated terrorist act occurred. And your participation in the conspiracy, since it was spread over three weeks, cannot be described as fleeting.

65 Throughout the trial and at your plea hearing, your senior counsel, Abbas, tried to portray you as a simpleton who was incapable of standing up to your older brother Ibrahim and therefore as someone who was almost coerced into the conspiracy.[20]

66 In this regard, your senior counsel relied heavily on Ibrahim's testimony at your trial, as well as previous representations made by him to the police. Much could be said about Ibrahim's testimony but, suffice to say, he was a most unimpressive witness, laughable at times, if perjury can be laughable. He told many lies at your trial, just as he did in his recorded police interviews, a point also noted by Tinney J.[21] I would not rely on anything Ibrahim said which tended to diminish your culpability, Abbas, or that of your co-conspirators, unless there was cogent corroboration.

67 In your record of interview, Abbas, you described yourself as a 'fishbrain', and much was sought to be made of this during your trial by your senior counsel. Similarly, at your plea hearing, your senior counsel said this about you:

Your Honour has sufficient information to ... to look at him and say, 'This is someone who is childish and childlike and ought not to be subject to the sort of condign punishment that is normally imposed on defendants in this context' ...[22]

68 There were several difficulties with this depiction of you,[23] not least of which was the content of the expert psychological report of Mr Coffey, tendered by your senior counsel. Mr Coffey found that, notwithstanding your struggles at primary school, your intellectual functioning was in the normal range, albeit at the lower end of that range. I note that you passed Year 12.

69 Mr Coffey also found, based on several conferences with you and information provided from members of your family, that you were quite capable of standing up to your brother.

70 Whilst I accept your brother recruited you - which was an aggravating circumstance so far as his offending was concerned - I reject the suggestion that you lacked the wherewithal to resist your brother's entreaties. I also reject the suggestion that you did not understand the seriousness of what you were getting into. Rather, I accept Mr Coffey's finding that you were 'fully capable of understanding the nature and the consequences of the acts constituting the elements of the offence'.[24]

71 The fact that you became a party to a conspiracy to do acts in preparation for a terrorist act which was contemplated to involve the mass slaughter of innocent civilians means that your moral culpability is high, even though it is not as high as the other three.

72 I now turn to the principle of totality, which is relevant to you, Chaarani and Mohamed, because you are currently undergoing sentence for other matters.

73 You, Chaarani and Mohamed, were convicted by a jury and sentenced for two terrorism offences by Tinney J in July this year.[25] The offences were attempting to engage in a terrorist act and engaging in a terrorist act. In brief, motivated by your support for IS and your hatred of Shia Muslims (an aspect of IS ideology), the two of you set fire to the Imam Ali Islamic Centre in Fawkner on two occasions (25 November 2016 and 11 December 2016) late at night when there were no people around. On the second occasion, the mosque was substantially destroyed.

74 Tinney J imposed on each of you a total effective sentence of 22 years' imprisonment and a non-parole period of 17 years. Taking into account his declaration of pre-sentence detention of 703 days, you are currently not eligible for release on parole until you, Chaarani,[26] and you, Mohamed,[27] are aged 43 and 41 respectively, and your total effective sentence is not due to expire until you are aged 48 and 46 respectively.

75 In sentencing you today, I am obliged by s 19AB(2) of the Crimes Act 1914 to fix a new non-parole period. I note that the prosecution agreed that it was unnecessary for me to exceed the mandatory non-parole period, namely, three quarters of the total effective sentence (s 19AG of the Crimes Act 1914).

76 Recognising that I must impose a substantial prison term for the current offence, defence counsel submitted that the key sentencing consideration was the degree to which I order concurrency and called in aid the principles concerning totality and the avoidance of crushing sentences.[28]

77 In R v Mangelen[29] at [28] to [29], the Court of Appeal said this about the principle of totality:

Historically, the principle of totality had been applied in circumstances where an offender fell to be sentenced for multiple offences to ensure that the aggregation of the sentences was a just and appropriate measure of the offender's criminality. The ambit of the principle was extended to apply where the offences upon which the offender must be sentenced overlap with or will be cumulative upon an existing custodial sentence. In both of these situations, the principle requires the court to consider the total criminality involved in all of the offences for which the offender is to be sentenced and the offences for which the offender is currently serving a sentence. The court must evaluate the overall criminality involved in all of the offences so as to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the effective length of the sentences to be and which have been imposed. If the total sentence is an unjust or inappropriate measure of the total criminality involved, the sentence which the offender is required to serve will be moderated so that the aggregate of sentences imposed by reason of cumulation is not greater than any sentence required to fulfil the totality principle. The principle is to be applied to both the fixing of the head sentence and the non-parole period.

78 In R v Beck[30] at [19], Nettle JA, as he then was, said this regarding 'crushing sentences':

[T] he notion of a crushing sentence ...is generally conceived of as one that is imposed in such a way that it would provoke a feeling of helplessness in the applicant if and when he is released or as connoting the destruction of any reasonable expectation of useful life after release.

79 I accept that there should be substantial concurrency to give effect to those two principles but, as I indicated in discussion, there must necessarily be substantial cumulation too. Neither defence counsel nor the prosecutor took issue with that approach.

80 In the course of discussion, I indicated that the current offence was a much more serious offence than the terrorist offences for which Tinney J sentenced you, Chaarani and Mohamed. Nothing I said in the course of the plea hearing should be interpreted as belittling the seriousness of the matters dealt with by Tinney J, but here what was contemplated was a terrorist act involving mass slaughter (rather than property damage) and, consequently, the gravity of the conspiracy must be seen in that light.

81 Consistency is an important consideration in sentencing. I have had regard to comparative sentencing cases in determining your sentences and I include as an annexure to these sentencing reasons, the helpful table of cases provided by the prosecution. But, as already indicated, the sentence imposed by Tinney J on your co-conspirator Ibrahim was, of course, of particular significance.

82 I now turn to sentencing principles specific to terrorism offences.

83 In DPP (Cth) v MHK[31] at [48], the Court of Appeal said this:

[I]t is important to bear in mind that the statutory offence created by s 101.6 of the Criminal Code was designed to ensure that persons, who plan to commit dangerous acts of terror in our community, be intercepted early, well before they are able to perpetrate such acts and thereby cause the appalling casualties that invariably result from acts of terror. It is for that reason that an assessment of the criminal culpability of a person, convicted of such an offence, is not measured purely by the steps and actions taken by the offender towards the commission of the act of terror, but, in addition, by a proper understanding and appreciation of the nature and extent of the terrorist act that was in contemplation, and to which those steps were directed.

84 In my opinion, these remarks are equally applicable to a conspiracy to do acts in preparation for or planning a terrorist act.

85 In R v Alou (No 4)[32] at [165] to [171], Johnson J helpfully set out a number of principles identified by courts in Australia and the United Kingdom in respect of sentencing for terrorist offences:

[165] The primary considerations on sentence for terrorist offences are the protection of the community, the punishment of the offender, the denunciation of the offending and both specific and general deterrence: R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691 at [92]; Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360 at [274]; R v Khazaal [2009] NSWSC 1015 at [47].

[166] Subjective circumstances and mitigating factors, including considerations of rehabilitation, are to be given substantially less weight: R v Lodhi at [89]; Lodhi v R at [274]; R v Khazaal at [41]; DPP (Cth) v Besim [2017] VSCA 158 at [112]- [113].

[167] The religious and ideological motivation of an offender is relevant to the issue of community protection, as well as to the assessment of the objective gravity of the offence: R v Kahar [2016] 1 WLR 3156; [2006] EWCA Crim 568 at [19].

[168] Where it is not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance: R v Lodhi at [82]-[83], [88]; R v Elomar and Ors (2010) 264 ALR 759; [2010] NSWSC 10 at [93]; Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 at 591.

[169] Weight must be given to the need for general deterrence even if the force of ideological or religious motivations are such that deterrence may not be effective: R v Lodhi at [91]-[92]; Lodhi v R at [87]-[88]; R v Barot [2007] EWCA Crim 1119 at [45]; DPP (Cth) v Fattal [2013] VSCA 276 at [169]; DPP (Cth) v MHK [2017] VSCA 157 at [52]- [53].

[170] Whilst youth is relevant to determining the weight to be given to general deterrence and denunciation in the sentencing equation, its weight is diminished quite measurably in terrorist cases where the offender participates in, plans or carries out actions of extreme violence. The protection of society, and the upholding of its most fundamental values, necessitates that in terrorist cases, the sentencing considerations of general deterrence and denunciation must be given primacy above the ameliorating effect of youth: DPP (Cth) v MHK at [66]; R v Khalid and Ors [2017] NSWSC 1365 at [109]- [113], [270].

[171] In considering the nature and gravity of terrorist offences, courts in Australia have utilised a number of facts referred to by the UK Court of Appeal in R v Kahar at [19]: R v Elomar at [62]; R v Benbrika at [564]; R v Kahlid and Ors at [25]. The factors referred to in R v Kahar are:

(a) the degree of planning, research, complexity and sophistication involved, together with the extent of the offender's commitment to carry out the act(s) of terrorism;

(b) the period of time involved, including the duration of the involvement of the particular offender;

(c) the depth and extent of the radicalisation of the offender as demonstrated (inter alia) by the possession of extremist material and/or the communication of such views to others; and

(d) the extent to which the offender has been responsible, by whatever means, for indoctrinating or attempting to indoctrinate others, and the vulnerability or otherwise of the target(s) of the indoctrination, be it actual or intended. (footnotes omitted)

86 I have discussed at some length the circumstances of the offence. I now turn to the circumstances of each offender, beginning with you, Abbas.

87 You were born on 19 March 1995 and are now 24 years old. You were 21 years old at the time of your offending.

88 You are of Lebanese descent. Your parents migrated from Lebanon to Australia in the 1980s. Your brother and co-conspirator Ibrahim is a year older than you. You also have a half-sister who is six years older than you.

89 You grew up in Meadow Heights. Your mother raised you and your siblings whilst your father worked as a taxi driver. English and Arabic were the spoken languages at home.

90 As regards your family's religious practises, you told Mr Coffey that your parents were observant but not ardent Muslims; they did not provide you with much religious instruction and, according to Mr Coffey, based on information from you and some members of your family, 'an intensely devout religious sentiment did not pervade family life',[34] although I note that in Tinney J's sentencing reasons in respect of Ibrahim, your father is described as a 'strict disciplinarian who encouraged the family to pursue Islamic values and practices'.[35]

91 Your primary and secondary education took place at a private Islamic school in Faulkner. You were apparently a quiet child in your first few years at school who struggled to read and was generally slow to learn.

92 Sadly, your parents separated in 2005 when you were about 10, and you told Mr Coffey this was a very unsettling experience for you. In the lead up to the separation, your parents often argued and your father would sometimes throw things and injure your mother. You saw your sister being hit, but you did not suffer physical harm yourself. The police were called to the house on occasion.

93 After your parents' separation, you lived with your paternal grandmother in Keilor Downs for two years. Your father sometimes lived there with you and you stayed with your mother on weekends.

94 During secondary school, you and Ibrahim were living with your father on weekdays and with your mother on weekends.

95 At secondary school, you reportedly became more confident and outgoing, making friends and taking up boxing. Your mother recalled that you had fewer problems academically and socially as your schooling progressed. In 2012, you completed Year 12 whilst living primarily with your mother.[36]

96 You harboured hopes of a career in engineering. You did not get the necessary marks, however, you gained a place in a financial planning course at RMIT. You did not enrol in the second year of your course and instead went on to complete a certificate in warehousing and undertook an electricians' pre-apprenticeship course.

97 In 2014, your brother Ibrahim moved out of your mother's house and you saw less of him until the lead up to this offending. That same year, you started work as a painter, first on a part-time basis and then full time for around six months in 2015.

98 You have never received psychological or psychiatric treatment during childhood or adulthood[37] and Mr Coffey opined that you do not possess any antisocial or psychopathic traits.[38]

99 According to Mr Coffey's report there was no marked change in your mental state or daily habits in the two months leading up to your arrest.

101 You were married in 2015 to a young woman, according to Muslim custom. You lived together in Meadow Heights, but after six months you broke up.

102 You went back to living with your mother and although she reported that you were very upset at this time, you kept up your part-time work as a painter, working about two to three days per week in 2015 and 2016. You apparently enjoyed your work.

103 When you were not working, you generally played computer games in your room. You reported that you spent about eight to 10 hours a day, and sometimes all of your waking hours, playing computer games.

104 You told Mr Coffey that in the two-month period leading up to your offence, you would pray a few more times per week than you had in the past because you were seeing more of your brother Ibrahim and your cousin Chaarani but that you were still well short of being observant.[39] You attended the HIYC a few times a week with them.[40]

105 You told Mr Coffey that you had never been an adherent to a radical form of Islam and that you have never supported violence to achieve religious or political ends.[41] Whilst I accept that your co-conspirators were more radicalised than you, and played a more active part in the conspiracy, your entry into the conspiracy gives the lie to the claim that you never supported violence to achieve religious or political ends. Your numerous internet searches for lectures by the extremist cleric Anwar Al Awlaki and your liking for 'Jihad Nasheeds', not to mention your attendances at Clonbinane and Federation Square with your co-conspirators, fortify me in the conclusion that you, too, became radicalised.

106 Unlike Chaarani and Mohamed, you have not given evidence renouncing Islamic State and violent jihad. Whether the scales have now fallen, or are falling, from your eyes, I cannot say, but I am not persuaded that you are de-radicalised. The fact that you have expressed an interest in participating in a prison de-radicalisation course run by the Board of Imams Victoria is a step in the right direction, but it is an insufficient basis for me to find that you are genuinely on the path of de-radicalisation.

107 During your time in custody you have been held in a protection unit,[42] first in the Melbourne Assessment Prison and then in Port Phillip Prison. You reported to Mr Coffey that your time in custody has been difficult because other prisoners have abused you, made threats against your life and you have not felt safe. You receive weekly or fortnightly visits from your parents and you speak with your cousins and sister about once a month.

108 Since being in prison you have a completed a number of short courses, being OH&S, first aid, food handling, cleaning and some basic English and Maths courses. You also have a billet as a cleaner of your unit, working for 30 minutes a day each afternoon.

109 Let me now summarise your mitigating circumstances but remembering that subjective considerations are given far less weight when sentencing for terrorism offences. First, you were relatively young, 21 years old, at the time of your offending. Second, you do not appear to have been radicalised to the same extent as your co-conspirators: for one thing, the material located on your devices that was related to IS and violent jihad was a fraction of that located on your co-conspirators' devices. Third, your active participation in the conspiracy was limited to a couple of days spread over a three-week period. Fourth, your role in the conspiracy was of much more limited significance than the others. Fifth, you have no criminal antecedents. Sixth, you appear to have used your time in prison as productively as possible. Seventh, you have reasonable prospects of rehabilitation.

110 I now turn to your personal circumstances, Chaarani.

111 You, Chaarani, were born on 18 September 1990 in Carlton and are now 29 years old. You were 26 at the time of this offence.

112 You were brought up in a devout Muslim home in the northern suburbs of Melbourne. I was told that you have happy memories of your childhood.

113 Your parents came to this country separately from Lebanon and married here in Melbourne. They separated and divorced when you were about 21.

114 Growing up, you adored your mother who spoilt you with affection. Your father was a strong disciplinarian but, according to your counsel, you respected him.

115 You have one older and two younger sisters. Your elder sister is married with two children, your niece and nephew, to whom you are close.

116 Your younger sister, Ola, in her character reference for you, writes of the support you have provided her as a 'father figure' and older brother, as well as the support you have provided to your mother. Ola writes of your father's strong disciplinarian streak, which at times caused you to have disagreements with him but says that you have managed to build a good relationship with him whilst you have been incarcerated. She says that whatever happens to you, your family will continue to support you.

117 You attended Muslim schools. Your father, in particular, encouraged your Islamic education. You attended King Khaled preparatory school for one year before attending Darul Ulum Sharia Islamic School from Grades 1 to 9. It was a very strict school which placed extra emphasis upon Islamic and Arabic literature classes. Classes in Arabic and the Quran were mandatory. You were required to attend at the school mosque. You learnt most of your Islamic teachings and obligations at that school.

118 I was told by your counsel that you excelled in your study of the Quran, a third of which you committed to memory. You participated in competitions in which you recited whole passages of the Quran. In 2004 at the age of 14 you won first prize in one of these competitions at the school.

119 From about the age of 14, you started taekwondo at a club in Fawkner. You were very dedicated and by the age of 18 attained your 'black belt'. You competed in martial arts competitions around Australia, and achieved some success.

120 I was told that you completed Year 12, but it is unclear from the submissions and materials provided where you attended for your final years of school.

121 You worked as an electrician during Year 12, which you continued after school for about a year. You then started work as a painter. At one point you worked with Hamza Abbas for the same employer. You also worked as a labourer in the construction industry.

122 Over the years, you have not had any issues with drugs and alcohol and it was not suggested that you suffer, or have suffered, from any mental health conditions or disorders.

123 Your prior convictions are for driving offences and one for being a non-prohibited person in possession of a Category E handgun (an imitation pistol). I do not consider these prior convictions to be relevant to the sentence I must now pass on you.

124 As previously mentioned, your parents unfortunately separated and divorced when you were about 21 years of age. The breakup was acrimonious. I am told this was challenging for you. You became the sole male in the household and took responsibility for that household. Your counsel emphasised that this was a heavy burden for you.

125 In 2016 you married your wife, Aisha al Qattan, who has written you a character reference. You met her through the wife of your cousin, Ibrahim. You lived together in Dallas and I am told that, despite your incarceration since 2016, you are still together and enjoy a happy marriage.[43]

126 In your wife's character reference, she writes of her difficulty in adjusting to life in your absence, saying that adjusting to living independently has been one of the hardest things she has had to process. She says you encouraged her to make something of herself by pursuing a career in midwifery. Unfortunately, this has not been possible given the lengthy proceedings in this Court for your two terrorism cases. She writes of her continuing love for you and how the worst thing is not having you at home with her, remarking on your 'good character, kindness, caring, funny and loving nature', being the characteristics that drew her toward you. Aisha speaks of you being a hands on and active member of the Muslim community. She tells of how you have remained devoted to her during your imprisonment, for example, arranging for your sisters-in-law to purchase gifts for her with the money you earn in prison. She says that you have grown and matured during your incarceration.

127 Your mother-in-law and brother-in-law have also provided character references about you.

128 Your mother-in-law, Badia, writes of the support you have provided to her in relation to her vision problems as well as to the broader family. She says that you have apologised to her for your misunderstanding of your religion.

129 Your brother-in-law, Ahmad, says that you were a hardworking, respectful, trustworthy and honest man. He says that one day he hopes that you will be able to work in his small business. Again, he writes of how you have bettered yourself in custody.

130 A friend of yours, Mahmoud Houssen, also provided you with a character reference. He suffers from muscular dystrophy and writes of the support you have provided to him over the years.

131 A former neighbour of yours, whom for reasons of confidentiality I have decided not to name here, writes of the kindness you showed towards her after an incident occurred on her street.

132 Regarding your radicalisation, in 2015 you became interested in IS and events occurring in Syria and the Middle East.

133 On 9 July 2015, you attempted twice to board flights to Malaysia but were prevented from doing so by the Australian Border Force ('ABF') who interviewed you about the purpose of your travel. The prosecution argued at your trial that you were flying overseas with a view to helping IS. Your position was that you just wanted a short holiday, as you told the ABF officers. You maintained that position when you gave evidence at your plea hearing.[44]

134 Whether you were already radicalised by 9 July 2015 and hoping to fly out to join or support IS in Syria, I cannot say beyond reasonable doubt, but certainly, by the 28 March 2016, you were well advanced on the path of radicalisation. On that day, in an intercepted conversation, you were talking to a friend about photos circulating on the internet of a dead IS fighter whom you believed to be your cousin Nabil Abbas, who had flown from Melbourne to Malaysia on 16 June 2015 and never returned. In the intercepted conversation, you enthused over Nabil having become a martyr and repeatedly expressed your hopes of emulating him:

Thanks to Allah ... regardless he got it and bro - let the haters hate, bro. Let the hypocrites keep on, ah, hating and let the disbelievers keep on raging and on the day of judgement, bro, Allah willing, we'll meet again ... Allah willing, we'll follow him on the same path, bro. One day, Allah willing, we follow the same path ... Martyrdom, Allah willing ...

135 I also note that by May 2016 you were messaging Hamza Abbas about where he could access online lectures by the extremist cleric, Anwar Al Awlaki.

136 As regards de-radicalisation, I have received a letter from an Altaf Hussain, Senior Prison Chaplain of the Muslim Faith at the Port Phillip Prison, noting that you are ineligible for the CISP de-radicalisation program until you have been sentenced, but that you have shown an interest to start this program as soon as possible.[45]

137 I have also received a character reference from a fellow inmate of yours, one Abbas Allafta. He is a Shia Muslim. Notwithstanding your previous disdain for Shia Muslims, he writes that you never treated him in a 'hateful or hostile way'. He says from the very beginning you have treated him as a 'Muslim brother and a friend'. He says that during visits, your families greet one another and that you are friendly with his twin children. On Fridays he says you pray together and hold Islamic classes together in the prison library, learning of your faith as Sunni and Shia together. You have expressed your remorse to him and been apologetic for your conduct to his community.

138 More significant than your expressions of interest in the prison de-radicalisation program and the reference from your fellow prisoner is the fact that you took the uncommon step for a convicted terrorist of giving sworn evidence at your plea hearing, publicly renouncing violent jihad in general and IS in particular.

139 Whilst I did not accept all your evidence - for example, I seriously doubt your claims that your attempts to travel to Malaysia on 9 July 2015 were motivated merely by the desire to have a brief holiday - I find in your favour, on the balance of probabilities, that you are genuinely on the path of de-radicalisation. That view was not disputed by the prosecution, either in its cross-examination of you or in submissions after you had given evidence.

140 Further, in your testimony, you admitted your guilt of the current offence, effectively forfeiting your right of appeal against conviction.[46] That is no small matter, even though the prosecution case was a compelling one.

141 As already mentioned, these developments merit a significant discount on your sentence.

142 Further, on the balance of probabilities, I accept that you are now remorseful for your participation in the conspiracy. But, as previously explained, subjective considerations are accorded less weight when sentencing for terrorism offences.

143 You have been in custody since 22 December 2016.

144 I have received a number of certificates for courses you have completed whilst in custody, including kitchen, vocational and cleaning courses. You have been receiving visits from a chaplain for up to two hours, and you discuss religious matters, pray together and ask about options for de-radicalisation.

145 As I did with Abbas, I will now summarise the mitigating circumstances in relation to you, Chaarani. First, you testified at your plea hearing renouncing IS and violent jihad. Second, in the course of your testimony, you admitted your guilt, effectively abandoning any appeal against conviction. Third, you are genuinely on the path of de-radicalisation. Fourth, you are remorseful for your offence. Fifth, you have no relevant prior convictions. Sixth, you have used your time in prison productively. Seventh, you have reasonable prospects of rehabilitation.

146 I now turn to your personal circumstances, Mohamed.

147 You were born in Cairo, Egypt on 28 September 1992 and you are now 27 years of age. You were 24 years old at the time of the current offending.

148 Your parents raised you in Egypt after fleeing Kuwait in 1990. When you were seven years old, your mother brought you to Australia as she could see no opportunity for you in Egypt. Your father stayed behind and eventually moved back to Kuwait. As a result, your father has been largely absent from your upbringing, although you still hope that your father will come to live in Australia. He currently lives in Dubai.

149 You settled with your mother in Melbourne, where you completed your primary education at Moreland Primary School in Coburg, before eventually moving to Sydney, where you had more familial supports. You completed Year 9 of your secondary education in Sydney, at Liverpool Boys High School, but you did not enrol in Year 10. You then moved to Dubai with your mother for about eight years, until you returned to Melbourne in 2013.

150 When you returned to Melbourne, you were in regular employment as a carpenter and labourer, as well as truck driving.

151 There is no evidence of you having suffered from any mental illnesses or disorders.

152 You have a limited criminal record. On 4 December 2015, in the Broadmeadows Magistrates' Court, you were fined $3,000 without conviction for the offence of affray and recklessly causing injury. I understand that this arose from a fight involving a family member of your first wife.[47]

153 The only other matter is a conviction for driving whilst your authorisation was suspended. For that offence you received a community correction order, which was running at the time of your current offending. That is a circumstance of aggravation.

154 However, I do not regard your prior convictions as particularly significant.

156 Your first marriage was to a Shia woman named Shahad Hayati. This relationship ended in around the middle of 2015. There were no children from that marriage.

157 You married your second wife, Balquisa Sheikh, shortly after the divorce of your first wife, and the two of you have a son who is now two and a half years old.

158 Balquisa Sheikh wrote you a reference, even though the two of you are now divorced. In that reference she writes of how you have remained in contact and sustained a healthy relationship with your son, despite your incarceration. She writes of the commitment you have to building a bond with your son. She states that she divorced you for mental health reasons, as she could no longer physically bear visiting you whilst pregnant. Balquisa says that you have never once disrespected her choice to leave you, or her decision to remove her veil, saying that your support of these decisions reveals the change in your views since imprisonment. She writes that in the months leading up to this offending, you were not the man she married. She mentions the non-Muslims you have befriended in custody and states her belief in your de-radicalisation. She says that prison has changed you for the better. She writes that your mother has been suffering mentally and physically and has blamed herself for your actions.

159 Your mother, too, wrote you a reference, as did your aunt, and two of your fellow inmates.

160 Your mother says in her reference that the shock of your arrest has taken a toll on her life: she cannot sleep, has high blood pressure, feels that she cannot live a normal life any more, and cries herself to sleep in the knowledge that her son will be behind bars for many years. She writes of her fear of falling into depression in her old age. She is now caring full time for her mother, something that as her only child, you were assisting her with prior to your imprisonment. She says that she brought you to Australia to help you get an education and have a better life but that for many years you both struggled to make ends meet in your new country. Like your former wife, she has difficulty reconciling your actions with the son she knew before.

161 Your aunt, Manal Hamdan, has lived in Australia for about nine years after migrating from Jordan. Her family lived with you and your mother in Geelong for a time, and she writes of how welcoming and kind you were to her family when they arrived, even offering your newly rented home to her and her family. She writes that you are the backbone of her family and they could always count on you for financial and other support. She also writes of the difficultly your mother is having without you.

162 Michael Dardha is a fellow inmate of yours at Port Phillip Prison and has known you for the last six or so months. He writes of the very close friendship that you have developed. Whilst Michael identifies as a non-practising Muslim, he says that you do not treat him negatively for this and have always treated him with respect. He says that you regularly share family visits together and that your mothers have become friends.

163 William Scorse, another fellow inmate of yours, also writes of the friendship he has developed with you and your mutual interest in fitness and exercise, including boxing. He writes that you are good with your family and in particular your son, whom he says you love dearly. He has observed the love your mother continues to have for you, and the many friendships you have made in prison. He says that you are a well-behaved prisoner and that you are well respected and liked in the prison. He also says that you have encouraged him to pursue all educational opportunities available to him. He concludes by saying that his experience with you has made him a better, more responsible person.

164 When asked by your counsel at the plea hearing whether you were raised a Sunni Muslim, you responded 'I grew up as a Muslim' but that you 'didn't know Sunni or Shia or anything like that'.[48] You said that your father was not a religious man and that you never once prayed with him, and that your mum is 'a little bit religious' but, overall, that you did not grow up in a religious family. You said that you 'never prayed ... never fasted ... I did everything that a Muslim doesn't do'.[49]

165 Your apathy towards religion changed upon your return to Melbourne in around 2013. At your plea hearing, you said you started working with a Lebanese man in the northern suburbs and that you started to attend mosques, firstly a mosque in Coburg. After meeting young Muslim boys you were embarrassed by your inability to pray.[50] You began attending the HIYC in Coolaroo, where you say 'everything started'.[51]

166 You reported that in 2014 and 2015, IS was "all over the news' and that 'everybody was talking about it', including your family. You stated that in around 2014, you were exposed to IS videos, which you would watch and discuss with other men at the mosque.[52] It seems that out of some particular need to gain a sense of belonging with this group of men, you started watching IS propaganda videos in bed on Twitter, Facebook and YouTube, some of which were extremely graphic and violent.[53] You said that you wanted to show your friends that 'I know what you guys are talking about' and you started to 'compete' in terms of who knew the most about the topic.[54] You said at your plea hearing that in response to watching these propaganda videos you were 'captured by ... all the good that [IS] ... were doing'.[55] At your plea hearing, you expressly linked your exposure to this material, much of which encourages acts of terrorism, to your participation in the conspiracy from October to December 2016.[56]

167 I note that in an exchange of text messages between you and a friend in December 2014, you were saying how much you loved the IS flag, and on 17 July 2015, you stored images of yourself holding that flag.

168 You said that in December 2016, you hated non-Muslims in the general community because 'I saw they're killing us overseas and we didn't do nothing to them'.[57] You accepted at your plea hearing that as at the time of your arrest you were 'very invested' in IS ideology.[58]

169 In custody, you are seeking to enrol in a Bachelor of Arts in Islamic Studies, which you are not able to apply for until you get sentenced. You are seeking to do this to 'change [your] concept of radicalisation' and to help you be 'a better Muslim'.[59]

170 Altaf Hussain, a Senior Prison Chaplain of Muslim Faith, has written that, like Chaarani, you are ineligible for the CISP de-radicalisation program until you have been sentenced, but that you have shown an interest to start this program as soon as possible.

171 More importantly, at your plea hearing, you took the very significant step of testifying. You were the first to do so. Not everything you said was credible,[60] but given your very public renunciation of IS and acceptance of criminal responsibility for the current offence - effectively forfeiting your right of appeal against conviction - I am prepared to accept, on the balance of probabilities, that you, too, are genuinely on the path of de-radicalisation.

172 You testified about your disappointment and sense of betrayal when you did not receive any support from IS after being imprisoned, that you felt like they 'turned their back' on you.[61]

Now, I hate them ... Anyone that follows them is only going to go to gaol or get killed, and there's no martyrdom through ISIS. All the scholars, the Islamic scholars and the - and the Islamic religion everywhere is against them, and this is for a good reason, and I'm against them too.[62]

Well, ... as God says in the Quran, um, God does not prevent you from being just and fair and kind to the people that did not kick you out of your homes. In Australia, I - I have a home. This is my country. Like, um, so there's no reason at all, from the basis of the Quran, that I should fight or kill or whatever. So this is how I've changed now.[63]

175 The prosecution did not challenge your claims about de-radicalisation when cross-examining you or in submissions. But they emphasised, and I accept, that de-radicalisation is a gradual process, especially where the person concerned, like you and Chaarani, has demonstrated a longstanding enthusiasm for IS and violent jihad and was prepared to participate very actively in the kind of conspiracy of which you were convicted.

176 But I accept, on the balance of probabilities, that you are now remorseful for your involvement in that conspiracy.

177 You have been in prison since 22 December 2016.

178 You have engaged in prison education programs since your incarceration. I have received certificates of course completion in cleaning, cleaning operations and kitchen operations. I also understand that you are committed to further education and tertiary studies, including completion of a Bachelor of Arts (focusing on Islamic Studies) through the Open University scheme, having recently submitted your initial assessment application for the prison's Tertiary Preparation Program. I also understand that you have discovered a passion for reading and learning, including a focus on Islamic history.

179 As regards your work life whilst in prison, I am told that you have worked in a factory, and have two billet jobs in prison, including the unit cleaning billet and a gardening billet.

180 Let me now summarise your mitigating circumstances, Mohamed. First, at your plea hearing you gave evidence renouncing IS and violent jihad. Second, in your testimony you admitted your guilt of the current offence, effectively abandoning any appeal against your conviction. Third, you are genuinely on the path of de-radicalisation. Fourth, you are remorseful for your offence. Fifth, you have used your time in prison productively. Sixth, your prior convictions are few and of limited significance. Seventh, you have reasonable prospects of rehabilitation.

181 Section 16A(1) of the Crimes Act 1914 requires me to impose a sentence on each of you that is of a severity appropriate in all the circumstances of the offence.

182 Section 16A(2) stipulates a non-exhaustive list of mandatory sentencing considerations in respect of federal offences. Relevantly, they are:

(a) the nature and circumstances of the offence;

(e) any injury, loss or damage resulting from the offence;

(f) the degree to which the person has shown contrition for the offence:

(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii) in any other manner;

(j) the deterrent effect that any sentence or order under consideration may have on the person;

(ja) the deterrent effect that any sentence or order under consideration may have on other persons;

(k) the need to ensure that the person is adequately punished for the offence;

(m) the character, antecedents, age, means and physical or mental condition of the person;

(n) the prospect of rehabilitation of the person;

(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.

183 I have already considered (a), the nature and circumstances of the offence, at length.

184 In relation to (e), the community as a whole is the victim of your offending which, although it was preparatory in nature, still constitutes an assault on fundamental values of our society including respect for each person's dignity regardless of creed.

185 In relation to (f), contrition and reparation, I consider that you, Chaarani and Mohamed, have shown contrition and made some reparation for your offence by giving evidence and publicly renouncing IS and violent jihad.

186 In relation to (j), specific deterrence, the imposition of a sentence which strongly deters you from further offending is an important sentencing consideration given the horrifying nature of the terrorist act that you contemplated.

187 In relation to (ja) general deterrence, the sentence I impose must act as a strong deterrent to other would-be terrorists.

188 In relation to (k), adequate punishment, suffice to say at this stage that you each fall to be sentenced for an upper range example of the offence in question, which carries a maximum sentence of life imprisonment.

189 As regards (n), prospects of rehabilitation, you, Abbas, played a lesser role in the offending and do not seem to have been as immersed in IS propaganda as your co-conspirators, and have no criminal antecedents, so I find, on the balance of probabilities, that your prospects of rehabilitation are reasonable. As regards you, Chaarani and Mohamed, I am prepared to make the same finding mainly because of your unchallenged evidence publicly renouncing IS and your admission of your guilt, effectively forfeiting your right of appeal against conviction.

190 As regards (p), family hardship, your incarceration for many years will necessarily impact heavily on your family, but such hardship must be out of the ordinary before it could justify a reduction in your sentences. Understandably, no such submission was made by your counsel.

191 As previously mentioned, when discussing sentencing principles in relation to terrorism offences, the sentences I impose must emphasise just punishment, denunciation, general and specific deterrence and protection of the community.

192 Subjective considerations such as youth, previous good character and prospects of rehabilitation are of reduced significance given the gravity of your offending.

193 There are two other matters I must mention before I proceed to impose sentences of imprisonment on each of you for the current offence and fix a new non-parole period for you, Chaarani and Mohamed, due to the fact that you are already undergoing sentence.

194 Section 16F of the Crimes Act 1914 (Cth) requires me to explain to each of you, in language you will understand, the purpose and consequences of fixing a non-parole period in your case. You will be imprisoned for a period not less than the non-parole period which I fix. After that time, if you are considered suitable for release on parole, you will serve the balance of your sentence in the community. During that period on parole, if it occurs, you will be subject to conditions and supervision. If, without reasonable excuse, you fail to comply with your parole conditions or the lawful requirements of your supervisor, your parole will be cancelled and you will be taken back into custody to serve the balance of your sentence.

195 Pursuant to s 105A.23 of the Criminal Code (Cth), I am also obliged to inform you that an application may be made under Division 105A of the Code for a continuing detention order requiring you to be detained in a prison after the end of your sentence for the offence of which you have been found guilty.

197 Abbas, I sentence you to 22 years' imprisonment with a non-parole period of 16 years and 6 months. I declare that you have served 1072 days by way of pre-sentence detention.

198 This means Abbas[64] that you will be 38 years and 3 months old when you become eligible for parole and 43 years and 9 months old when your head sentence expires.

200 Chaarani and Mohamed, I sentence you to 26 years' imprisonment and I order that 16 years of those 26 years be cumulative on the sentence you are currently undergoing (which means, taking into account Tinney J's sentences, that you have a total effective sentence of 38 years to serve from when you were taken into custody on 22 December 2016).

201 In order to give effect to my order for cumulation, I direct that the sentence I have imposed on you commences on 19 August 2029, at which point the sentence imposed by Tinney J will still have 10 years to run.[65]

202 I fix a new non-parole period of 28 years and 6 months (which is the mandatory minimum).

203 I declare that you have each served 241 days by way of pre-sentence detention.[66]

204 This means that you will be eligible for release on parole when you, Chaarani,[67] are 54 years and 9 months old, and you, Mohamed,[68] are 52 years and 8 months old and your head sentences will expire when you, Chaarani, are 64 years and 3 months old, and you, Mohamed, are 62 years and 2 months old.

The Queen

-v-

Hamza ABBAS, Abdullah CHAARANI and Ahmed MOHAMED

Comparative cases: sentences for offences against s 101.6 Criminal Code (acts in preparation or planning for a terrorist act)

Lodhi v The Queen [2007] NSWCCA 360; 179 A Crim R 470

Supreme Court of NSW (Court of Criminal Appeal) Spigelman CJ, Barr and Price JJ

R v Lodhi (2006) NSWSC 691; 199 FLR 364 (Whealy J)

Contravening s 101.6(1) of the Criminal Code: 20 years imprisonment (count 2); and

Contravening ss 101.5(1) and 101.4(1) of the Criminal Code: 10 years imprisonment on each count (counts 1 and 3).

Total effective sentence: 20 years imprisonment, with a non-parole period of 15 years.

Spigelman CJ (Barr and Price JJ agreeing): The significant sentence imposed was 'well within range' due to the weight to be given to community protection, having regard to the finding that the appellant has not resiled from extremist views (at [82]-[83], [109]-[110]).

Price J: rehabilitation and personal circumstances are often to be given very little weight in sentencing for terrorism offences. Greater weight is to be given to the protection of society, personal and general deterrence and retribution (at [274]).

An application for special leave was refused by the High Court on 13 June 2008.

The offender planned a bombing of the Australian electrical supply system.

He obtained maps of the system for this purpose, (count 1) though had not yet determined the precise area to be bombed or the identity of the bomber.

He obtained a price list for chemicals, (count 2) in order to assist in an enterprise to assemble an explosive.

Whealy J was not satisfied that the offender would necessarily assemble the bomb or be the bomb carrier. HH was satisfied that the contemplated bombing was in the cause of violent jihad, to intimidate the Government and the public.

The offender also possessed a handwritten document he had created which contained instructions for the creation of homemade poisons and explosives (count 3).

The offender contemplated that the ultimate act of terror would, at least, cause serious damage to property.

Whealy J was not satisfied that he intended to kill innocent people, but was satisfied that the offender knew an explosion created a risk of serious physical harm or death to persons in the vicinity.

HH found that the offences were one uninterrupted course of conduct (which justified complete concurrency), involving a very high level of criminal culpability, falling short of the worst category of case. Although his actions were at a very early stage of the terrorist enterprise, the legislation aims to intercept and prevent a terrorist attack at the very early or preparatory stage.

The offender was born in Pakistan, migrating to Australia in 1998. He became a qualified and practicing architect. He married in 1999. His wife was a qualified medical practitioner in Pakistan who, after joining the offender in Australia in 2000, undertook additional studies in order to obtain registration as a doctor in New South Wales.

The offender became increasingly involved in his faith after marrying.

He was 36 years old at the time of sentence. He had no prior convictions.

The offender had hitherto led a blameless life, and come from a favourable and strongly supportive family background. In light of these matters, Whealy J expressed some cautious hope that, in time, the offender's extreme views may dissipate and that rehabilitation may not be beyond him.

Having maintained his innocence, the offender was not remorseful or contrite.

DPP (Cth) v Fattal [2013] VSCA 276

Supreme Court of Victoria Court of Appeal, Buchanan AP Nettle and Tate JJA

R v Fattal [2011] VSC 681 (King J)

Wissam Fattal, Saney Aweys and Nayef El-Sayed were each convicted of conspiring to do acts in preparation for, or planning, a terrorist act (contrary to ss 11.5 and s 101.6(1) of the Criminal Code).

Each offender was sentenced to be imprisoned for 18 years, with a non- parole period of 13 years and six months.

Each sentence was the subject of appeals by both offender and the Director. Each of these appeals was dismissed.

The Court considered the sentences were open, and within range (at [181], [233]), and remarked that they were 'severe, but quite properly so' (at [232]).

The Court regarded the primary purpose in sentencing as being the protection of the community (at [218]).

The subject of the conspiracy was a plan to attack the Holsworth Army barracks in NSW, and kill as many people as possible, at random. Part of the plan was for the attacker to be killed themselves, as a martyr. (Court of Appeal at [3] and [180]).

Fattal's role involved going to the barracks to assess its susceptibility to an attack and to provide encouragement, predominantly to El Sayed, for the proposed terrorist attack.

Aweys' role was to seek a fatwa (religious ruling) from Sheiks in Somalia on the permissibility of carrying out the proposed attack, and also to assist El Sayed in seeking a fatwa.

El Sayed's role was to obtain information from Fattal about the suitability of the barracks as a target, to pass this information on to Aweys, and to seek a fatwa from Sheiks in Somalia.

All of the offenders supported Al-Shabbab, a radical and extreme Muslim group in Somalia.

King J considered that the most ameliorating feature was the amateurish level at which all the offenders were operating, and that they had not advanced the conspiracy to any significant degree ([87]). The Court of Appeal held that these features did not significantly diminish the offenders' culpability (at [178]).

King J regarded Fattal's reconnaissance of the barracks as being of little or no use in preparation for an attack.

None of the offenders had resiled from their extremist views at the time of sentencing, with the consequence that community protection and personal deterrence remained very significant sentencing factors (King J [53], [83]), and each offender was regarded as having 'extremely slim' prospects of rehabilitation ([99]).

In the case of Aweys, King J reached these views despite evidence of his willingness to engage in religious discussion with an Imam who visited him in custody.

Fattal was 35 years old when sentenced. He was born in Lebanon. He left school at the age of 14 and began kickboxing at 15. At 27 he moved to Australia. In 2005 he resided in Lebanon for 6 months where he was involved in a demonstration regarding a picture of Mohammed in a Danish paper. He was jailed for 3 months. During his time in Lebanon he became devoted and fundamentalist in his religious beliefs. Fattal was married in 2004 but separated from his wife and child 6 months after returning to Australia from Lebanon. He is of borderline level intelligence.

Aweys was 27, and born in Somalia. In 1991, he and his family fled to Ethiopia to escape civil war. His father died after returning to Somalia to assist relatives. In 1998, the family came to Australia as refugees. There were some prior offences indicating a degree of anger but no further occurrence of any incidence of violence from December 2005. He married in 2003 and has 4 children. Shortly before his arrest, he completed an apprenticeship as a boilermaker.

El Sayed was born in Australia and is of Lebanese background. He was 27 years old when sentenced. His parents' marriage was characterised by domestic violence and instability. At around age 15 the offender went to Lebanon. At 19 he did compulsory service in the Lebanese Army. There he became exposed to religion. At 21, he returned to Australia. He was working as a bricklayer when arrested. He enjoyed strong family support and was otherwise of good character.

Elomar v The Queen [2014] NSWCCA 303; (2014) 300 FLR 323; 316 ALR 206

Supreme Court of NSW (Court of Criminal Appeal) Bathurst CJ, Hoeben CJ at CL and Simpson J

R v Elomar (2010) 264 ALR 759; [2010] NSWSC 10 (Whealy J)

Mohamed Elomar, Abdul Hasan, Khaled Cheiko, Moustafa Cheiko and Mohammed Jamal were each convicted of conspiring to do acts in preparation for, or planning, a terrorist act (contrary to ss 11.5 and s 101.6(1) of the Criminal Code).

Elomar: 28 years imprisonment with a non-parole period of 21 years.

Hasan: 26 years imprisonment with a non-parole period of 19 years and 6 months

Khaled Cheiko: 27 years imprisonment with a non-parole period of 20 years.

Moustafa Cheiko: 26 years imprisonment with a non-parole period of 19 years and 6 months.

Jamal: 23 years imprisonment with a non-parole period of 17 years and 3 months.

Each offender appealed against his sentence. The Court of Criminal Appeal dismissed each appeal.

Khaled Cheiko, Mustafa Cheiko and Hasan each relied on manifest excess as a ground of appeal. In rejecting this ground, the CCA followed the reasoning of Spigelman CJ and Price J in Lodhi, to the effect that even though the acts were only preparatory, and no harm had yet been caused, Parliament has indicated that, in contemporary circumstances, such acts require condign punishment (at [714]-[715]; [753]; [786]-[790]).

The object of the conspiracy was a terrorist attack within Australia involving the use of firearms, explosives, or both.

Each of the offenders had adopted a fundamentalist and extreme version of the Muslim faith.

The Court of Criminal Appeal summarised the conduct of the offenders as follows: "[21] During the course of the conspiracy, the appellants communicated extensively with one another and with others, often by telephone, and sometimes using coded language. Each of the appellants undertook various tasks. It is not necessary, for present purposes, to identify the precise activities of each appellant. It is sufficient to say that they amassed an armoury of firearms (some of them authorised by appropriate licences), together with large volumes of ammunition. They purchased laboratory equipment. They collected (usually, but not always, electronically) a considerable library of literature containing instructions on the manufacture of explosives, and the detonation of various improvised explosive devices. Much of this literature was in the Arabic language. They obtained a large number of mobile telephones, almost always (if not always) in false names. They purchased chemicals and other materials suitable for use in the manufacture and detonation of explosives. They were in possession (again, usually electronically) of a very large quantity of extremist literature, advocating the pursuit of "Jihad" (or "holy war") and expressing propagandist fundamentalist Islamic beliefs."

The conspiracy was still being planned when the group were arrested. No precise act or target had been selected, nor a perpetrator or perpetrators nominated ([26]).

In the closing stages the offenders took steps to avoid detection.

The sentencing judge (Whealy J) concluded that the terrorist act for which the preparation was undertaken would involve action that, at least, was intended to cause serious damage to property and would, at the very least, create a very serious risk to health and safety of members of the public (at [60]) He could not be satisfied beyond reasonable doubt that any of the offenders intended directly to kill or take human life, but he found

it 'clear beyond argument that the fanaticism and extremist position taken by each offender countenanced the possibility of loss of life, if that were to occur'. ([60]) The Crown did not press for life imprisonment because it accepted that the evidence could not support a finding beyond reasonable doubt that the intention behind the conspiracy involved a deliberate and direct plan to kill people ([65]).

Whealy J found that the extremist material in the possession of each offender was a reflection of his ideology, inspiration and motivation ([62]). The religious conviction which underlay the offending was a 'startling and intransigent feature' of the crime ([63]). The Court of Appeal held that this conclusion set the basis for the application of a specific sentencing principle, namely the protection of the community by the incapacitation of the appellants (at [104]).

Whealy J found that although there may be slight gradations of difference in the allocation of criminal responsibility, overall the level of criminality to be attributed to each offender is relatively similar ([90]). HH found that each offender was unequivocally committed ([89]).

Elomar was the most senior of the offenders. He occupied a co-ordinating position in relation to most aspects of the enterprise. Among his activities was the ordering of a large amount of assault rifle ammunition, and writing a list of laboratory equipment to be ordered. He was at the forefront of the concealment activities.

Khaled Cheiko assisted in obtaining assault rifle ammunition. He also assisted to hide materials lest the authorities carry out raids. He was a co-ordinator of aspects of the enterprise, although his role was not as extensive as Elomar's.

Moustafa Cheiko was more of a 'doer' than a co- ordinator or strategist. He had engaged in acts in preparation for the manufacture of a detonator, and possessed materials which could be used for that purpose.

Hasan knowingly engaged in acts intending to acquire laboratory equipment for the manufacture of explosives. He was an active and useful participant in the conspiracy, though not a leader or co-ordinator.

Jamal ordered and collected chemicals for the creation of explosive devices. He was regarded as being at the lower end of the hierarchy, such as it is, but his criminality remained at a significant level ([178]).

Elomar was 44 years of age. He came to Australia from Lebanon in 1977. He is from a family of 12. He left school in year 10. He had worked in the family business successfully for approximately 15 years. His father died in 1994 and his mother passed away while he was in custody in 2008. He had been married for 22 years with 6 children of his own. In his interviews with authorities his answers showed a very high level of defiance, dislike and anger towards the Australian Government and its policies overseas. He possessed extremist and instructional material which Whealy J said provided further insight into his mindset. The offender has no prior convictions. Elomar's difficult custodial conditions were taken into account. The offender has not demonstrated acknowledgement of any responsibility for his actions. Whealy J saw no indication that Elomar will ever renounce the extremist views that fuelled his participation in this very serious conspiracy.

Khaled Cheiko was born in Lebanon, one of 6 children. He was 36 years old when sentenced. His family emigrated here when he was 3 years of age. He left school at the end of year 11. His employment record was sporadic. He told the psychologist that during his late teens and up until his early 20's he experimented with "sex, drugs and rock'n'roll". In his early 20s he became disenchanted with his lifestyle and started to practice Islam. Prior to this offending Cheiko led a blameless life. His custodial conditions were taken into consideration. Cheikho showed no remorse and no acceptance of responsibility. His prospects of rehabilitation were regarded as extremely poor. Whealy J found his extremist and fundamentalist convictions required his incapacitation for a considerable period of time so as to protect the community.

Moustafa Cheiko was 32 when sentenced. The offender was born in Australia, and has 4 siblings. His parents separated when he was 12. His father's absence caused significant financial stress in the home as his mother was left to bring up all five children. A psychological report indicated his father's absence affected his self-esteem and schooling. Due to a back injury he was never able to complete his apprenticeship as a motor mechanic. He worked in the security industry until he lost his license, following escalating interest from the AFP and ASIO. Cheiko is married with a child, the family visit weekly. His wife is not in good health. From 1995 onwards his interest in the Koran developed. The decision to follow a strict religious path created difficulty with former friends, leading him to develop new friends and he came more under the influence of his uncle Khaled Cheikho. He was fully radicalised and committed to extremist action. He showed no remorse, no acknowledgement of wrongdoing and no evidence of stepping back from the clear extremist views.

Hasan is divorced with 4 children, aged between 2 and 8. He was 40 when sentenced. He grew up in a large, impoverished Bangladeshi family. His education was basic and he had no particular vocational skills. His native language is Bengali. His English is fairly basic despite his being 20 years in Australia. Hasan's wife divorced him while he was in custody. Hasan has no criminal history of any kind and his custodial conditions have been onerous. Although the family situation is unhappy it does not reach the level of exceptional circumstances. Hasan showed no remorse whatsoever. He has not renounced in any way the extremist views which led him to the commission of the subject crime. His prospects of rehabilitation are poor.

Jamal was 25 years old at the date of sentencing. He has eight brothers and four sisters, Jamal being a middle child. He was born in Australia. His parents separated when he was between 5 and 10 years old. His early life was very strict and his father and older brother were very hard on him. He had difficulties at school and was expelled in year 9. He had his own business building and fixing computers, which was his job until he was arrested. He was introduced to drugs and alcohol while in school. His brother later took him away from his substance-abusing friends and introduced him to the Mosque. HH found no remorse, contrition, acknowledgment or acceptance of responsibility on the part of the offender. Though Jamal was a young man with no real criminal history, his prospects of rehabilitation are not good.

Jamal relied on the evidence of an Imam, to the effect that he had been engaging with the teachings of moderate Islam, in support of an argument that Whealy J erred in finding his prospected of rehabilitation were 'not good'. The CCA held it was open to Whealy J to find that Jamal had not discharged the onus of demonstrating that he had given up his extremist views given his failure to give evidence and refusal to accept his guilt (at [815]).

R v AL-KUTOBI & KIAD [2016] NSWSC 1760

Al-Kutobi and Kiad were each convicted of conspiring to do acts in preparation for, or planning, a terrorist act (contrary to ss 11.5 and s 101.6(1) of the Criminal Code).

Each offender was sentenced to 20 years imprisonment with a non-parole period of 15 years.

Garling J: The common law provides that punishment of an offender by the imposition of a sentence is designed to achieve a series of purposes, namely protection of society, deterrence of the offender and of others who might be tempted to offend, retribution, and reform or rehabilitation. These purposes are overlapping and often in tension. The purposes of ensuring adequate punishment of the offender and promoting the offender's rehabilitation, for example, are not always compatible [179].

In sentencing an offender for a terrorism offence, one of the ways in which the purpose of protecting the community can be fulfilled, is by incapacitating the offender from being able to plan, and ultimately commit, a terrorist offence at any point in the future [180].

Conspiracy to do acts in preparation for, or planning, a terrorist act by detonating an IED to damage or destroy a Shiite prayer hall & using a blade to kill or cause serious harm. Intention of advancing an extreme interpretation of Islam.

Acts included oath of allegiance to leader of IS, reconnaissance of target, liaising with IS recruiter, accessing instructions to create IED & obtaining relevant materials.

The offenders admitted that their conspiracy included an agreement to prepare to detonate an IED to damage property, but denied it also included an agreement to prepare to use a bladed weapon to harm or kill a person. Garling J was satisfied beyond reasonable doubt that this was a part of their agreement.

The offenders agreed that one or both of them carry out a series of overt acts pursuant to their unlawful conspiracy. Those acts were:

(1) taking an oath of allegiance to the leader of the Islamic State;

(2) conducting reconnaissance and target selection of a Shia prayer hall for the purpose of damaging or destroying it;

(3) liaising with, and receiving instructions and guidance from, an individual who was a recruiter for the Islamic State, whom they believed was located either in Syria or adjacent to it;

(4) accessing written instructions on how to create an IED;

(5) making a list of ingredients which could be used to create an IED;

(6) obtaining and keeping materials which could be used in the construction of an IED, which accorded with the written directions which were accessed;

(7) possessing a jar of homemade explosives which can conveniently be described as "napalm";

(8) locating and obtaining a machete and attempting to sharpen the blade of the machete;

(9) purchasing a cordless drill, which was used to drill holes in the blade of the machete;

(10) locating and purchasing a hunting knife;

(11) creating a balaclava from a tubular scarf by cutting eye holes in it;

(12) obtaining instructions to create an Islamic State flag, acquiring various materials to create it, and creating it;

(13) creating two notes which included the words "we are here to cut your heads"; and

(14) making a video in which Mr Al-Kutobi appeared in front of the Islamic State flag and said, among other things: "I swear to God Almighty, yellow people, there is no reproach between us, you will only get from us the stabbing of your kidneys."

Al-Kutobi was born in Iraq in 1991 and lived with his family until they fled to Syria when he was a teenager. They moved to Cyprus, then Germany, and then he came to Australia in 2009. Acquired citizenship in 2013. Radicalised in 2014, stemming from resentment of impact of war on his family. Long standing symptoms of depression, anxiety and some Post Traumatic Stress Disorder. While in Australia, drifted in and out of substance abuse. Since being drug free and in custody, he renounced extremist views, but this was treated with some reserve by the court. Al-Kutobi submitted letter to the court which described difficulties of his life, including in Iraq, as well as remorse and apology.

Objective seriousness of offending was not the worst, but certainly above mid-range. Preparatory acts were substantial and intended to kill/harm persons and damage property. Incumbent upon courts to make it plain that extremist ideology has no place in Australia. Guilty plea 5 days before trial - small discount only. Expressed contrition. Unable to form view as to prospects of rehabilitation, so no account given as to that. General and specific deterrence important. No priors. Equal participant to co-accused.

Kiad was Born 1989 in Kuwait, large family which experienced racism and discrimination due to their heritage. Stable upbringing. Came to Australia in 2012. Initially had difficulty adjusting.

Radicalised in 2014, but while in custody claimed to have moderated views and no longer wanted to travel to Syria. No identifiable psychiatric conditions present.

Guilty plea 5 days before trial - small discount only. Unable to form view as to prospects of rehabilitation. No priors.

DPP (Cth) v BESIM [2017] VSCA 158

Supreme Court of Victoria (Court of Appeal) Warren CJ, Weinberg and Kaye JJA

The Queen v Sevdet Besim [2016] VSC 537

Offender was convicted of one offence contrary to section 101.6(1) of the Criminal Code (Cth) and was sentenced to 10 years imprisonment with a non-parole period of 7.5 years. (But for the plea of guilty the head sentence would have been 15 years, with a non-parole period of 11 years.)

Crown appeal against sentence allowed by Warren CJ, Weinberg and Kaye JJA.

Original sentence increased to 14 years imprisonment with a non-parole period of 10 years.

The court noted that given the nature of the offence, and the purpose of the relevant provision under which the offender was charged, mitigating factors of a personal nature had to be given substantially less weight than in other forms of offending [114].

The court noted that the language of the section creating the offence, and the elements, make that clear. "The aggravating factors present in this case, including the fact that a police officer was targeted for beheading, that the killing was to take place publicly, and on Anzac Day, and the respondent's willingness to kill other innocent civilians if at all possible, made this an extremely serious example of a terrorist offence. The respondent's moral culpability was very great indeed" [118].

The offender was planning a terrorist attack for ANZAC day which involved the offender crashing a car into a law enforcement officer and beheading them with a knife.

The offender was caught as a result of online activity with a person called only 'S' who was in the United Kingdom. S was under surveillance. The offender and S had been discussing the planned attack on-line.

Originally the offender had planned on going to fight in the middle-east but he could not obtain a passport.

At the time of his arrest, 7 days before the planned attack, he was found to have conducted internet searches on ANZAC Day and places where there might be commemorations; he had a knife in his car; a 'Jihad flag'; he had made a pledge to IS and he had left a suicide note.

The acts in preparation for the attack had occurred over 1 month.

The offender was born in Melbourne, Victoria in 1997 and lived his entire life at the same address in Hallam with family. Parents of Albanian heritage. Large extended family living in Melbourne and Macedonia. Strong relationship with parents. Muslim household but religion was not major part of his life until 3 years prior to the offending. Played sport, video games, intended to study architecture. Father became more involved with religion and offender became more interested at the end of Year 9. In Year 10, he was introduced to the Al-Furqan Islamic Centre in Springvale, which had lectures that were religious and political. Centre known for strict interpretation of Koran. Became radicalized and believed violent jihad was justifiable.

DPP (Cth) v MHK [2017] VSCA 157

Supreme Court of Victoria (Court of Appeal) Warren CJ, Weinberg and Kaye JJA

R v MHK [2016] VSC 742

MHK was convicted of one offence contrary to s 101.6(1) of the Criminal Code and was sentenced to 7 years imprisonment with a non-parole period of 5 years and 3 months.

Crown appeal against sentence, appeal allowed. Sentence increased to 11 years imprisonment with a non-parole period of 8 years and 3 months.

The court held that while youth is relevant in determining the weight to be given to general deterrence and denunciation in the sentencing equation, its weight is diminished, quite measurably, in cases such as this, in which a youthful offender either participates in, or plans to carry out, actions of extreme violence. The protection of our society, and the upholding of its most fundamental values, necessitate that in cases such as this the sentencing considerations of general deterrence and denunciation must be given primacy above the ameliorating effect of youth [66]... while the potential rehabilitation of the respondent is an important sentencing factor, nevertheless, in a case such as this, it must give way, to a significant degree, to the requirements that the sentence be adequate so as to sufficiently express the court's and the community's repugnance at the actions and intentions of the respondent, and to deter other like-minded other young people from embarking on, and proceeding down, the same pathway that the respondent chose to undertake [67].

The offender had planned and prepared to build bombs and to detonate them in a populated area to cause significant death and injury to members of the public. He had been exposed to propaganda disseminated by a prescribed terrorist organisation and had adopted that organisation's ideology. He was in contact through the internet with a person in Britain who had encouraged him to carry out a terrorist act in Melbourne. By carrying out a terrorist act, the offender had intended to further the cause of the prescribed organisation.

Acts included communicating with IS personnel, and downloading bomb-making instructions, The offender obtained materials for bombs, including a pressure cooker, pipe elbows and screws. He shaved the heads off a large number of matches.

The offender was born in Melbourne in 1998 (aged 17 at the time of the offending). Parents were Sunni Muslim, though not strict. Family originally from Syria, left due to discrimination. Lived with his family in Melbourne and until 2015, enrolled and attending high school. Cannabis use. Emotional difficulties and anxiety led to deeper involvement in Islam, including absorbing IS propaganda.

Offending at the apex of seriousness - activities as elaborate and carefully planed as possible. Requires denunciation, punishment and general deterrence. Mitigation: No priors. No mental illness. Positive changes in attitude while in remand, including empathy for non-Muslims and recapturing closeness with family and steps towards de-radicalisation. Good prospects of rehabilitation, but more work to be done. Early guilty plea and giving evidence ad being cross-examined. Co-operation with law enforcement, but shortcomings in that area initially. Youth a significant factor.

R v Khalid [2017] NSWSC 1365

Khalid, Almaouie and IM pleaded guilty to conspiring with each other and others to do acts in preparation for a terrorist act (contrary to ss 11.5 and 101.6(1) of the Criminal Code 1995).

Khalid sentenced to 22 years, 6 months imprisonment with a non-parole period of 16 years, 9 months.

Almaouie sentenced to 18 years, 10 months imprisonment with a non-parole period of 14 years, 2 months.

IM sentenced to 13 years, 6 months imprisonment with a non-parole period of 10 years, 1 month.

Bellew J: The primary considerations on sentence in matters of this nature are the protection of the community, the punishment of the offender, the denunciation of the offending, and deterrence, both general and specific. Subjective circumstances and mitigating factors, including considerations of rehabilitation are to be given less weight...The religious and/or ideological motivation of an offender is relevant to the issue of community protection, as well as to the assessment of the objective seriousness of the offending. Consequently, where it is not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance [23]-[24].

The offenders supported violent jihad espoused by ISIS. They conspired together and with others to do acts in preparation for, or planning of, a terrorist act or acts. The terrorist act was to involve firearms and was to be a religiously inspired act of terrorism, namely violent jihad. The nature of the act or acts and the proposed target or targets were unresolved, but included the killing of a member or members of either the NSW Police Force or AFP and/or attacks upon government buildings.

Acts included (between 2 Nov 2014 and 18 Dec 2014):

- considering ways to carry out the acts

- considering possible targets such as police

- sourcing, obtaining and retaining firearms and ammunition

- telephone communications about impending martyrdom, training for and planning a domestic terrorist attack

- meeting at the offender's premises during 17-18 Dec 2014 for the purpose of considering documents the conspirators had made in preparation for a terrorist act.

Khalid was 20 years of age at the time of the conspiracy. He was the third of six children who had come to Australia from Iraq in 1987. He was responsible for coordinating many aspects of the conspiracy and his actions placed him at a level above the others. His offending fell towards the higher end of the scale of objective seriousness. 10% discount for plea of guilty. He had one minor prior without conviction. His youth was of little weight. He was being held in harsh custody conditions. Friends and family gave evidence to the effect that his actions were out of character.

Almaouie was 21 years of age at the time of the conspiracy. He was high up in the conspiracy although he was a "late joiner". He was in possession of three functional firearms (a rifle and two shotguns), ammunition, jihadi documents an SAS survival guide and a black flag. He was the author of relevant documents connected with the preparation of terrorist acts. He had no criminal history. His offending fell towards the upper end of the scale, although slightly lower than that of Khalid. 10% discount for guilty plea. His youth was given little weight. Harsh custody conditions. Strong testimonials from friends and family.

IM was 14 years of age at the time of the conspiracy. He had a high role in the conspiracy. He had a significant amount of extremist material on his telephone. He went to his uncle's place to see if he could source firearms there. He photographed himself there with four firearms. He also made Youtube clips and appeared on a television Program in support of violent jihad. His youth was a mitigating factor. 10% discount for guilty plea. Diagnosed with depression. His prospects of rehabilitation were more favourable than not. Restrictive custody conditions taken into account.

R v Khaja (No 5) [2018] NSWSC 238

Convicted of doing an act in preparation for or planning a terrorist act contrary to s101.6(1) of the Criminal Code (Cth): 19 years imprisonment with a non-parole period of 14 years and 3 months.

Engaging in conduct preparatory to entering a foreign country with intent to engage in hostile activities contrary to s 119.4(1) of the Criminal Code (Cth) (s 16BA schedule taken into account in sentencing)

Fagan J: The gravity of the offence of planning and preparation for a terrorist attack is recognised by Parliament in the prescription of a maximum penalty of life imprisonment. Although actual physical injury to person or damage to property is not an element of the crime, significant harm of other kinds is inflicted on the community by offences of this nature. They give rise to a pervading public sense of exposure to a danger over and above the statistical background risk of violent interpersonal crime, accident and natural disaster [43].

The offender went to the vicinity of the Timor Army Barracks at Dundas in Western Sydney and to court buildings in the business centre of Parramatta for the purpose of assessing those facilities as targets of an attack using firearms and explosives. He made contact with people he thought were sympathisers but who were in fact undercover operatives. He attempted to procure weapons from them and he sought their advice with respect to execution of the attack. He told them he intended to kill as many unbelievers (non-Muslims) as he could before being killed himself. He contemplated 50 deaths.

The express purposes of the offender in planning this attack, as stated by him at the time, were to kill unbelievers, to intimidate the Australian people and to create a climate of fear in which the country could be subjugated to Muslim rule. He expected his actions would encourage others of the same mind to undertake similar atrocities, leading to police and security services being overwhelmed, the institutions of constitutional democratic government being weakened and the Australian people being forced to live under Islamic law (sharia).

The offender's parents were both born in Kabul, Afghanistan and arrived in Australia in 1993. The offender was their third child, born 8 September 1997. The offender's parents were moderate Sunni Muslims.

From early 2013 (Year 10) the offender became preoccupied with the study of Islam and with participation in Muslim prayer groups at the school. He later told undercover operatives that at some time he had received tuition from an Arabic teacher, over a period of three years, and that since that period of tuition he was reading the Quran for 15 or 20 minutes each day.

In November and December 2013, at the end of Year 10, the offender purchased airline tickets for travel to Hong Kong and from there to Turkey. He intended to reach Syria and to join one of the organisations which were at that time engaged in armed combat against the Syrian government. This was his first attempt to travel to Syria, pre-dating by two years the foreign incursion offence which he has admitted in these sentence proceedings. He was persuaded by his parents and school principal to change his mind about travelling to Syria on that occasion.

The offender pleaded guilty to two indictable offences:

7(1)(a) C(FIR)A - preparations for incursions into a foreign state (count 1)

101.6(1) Criminal Code - acts in preparation for or planning a terrorist act. (count 3)

1 x breach of authority required to possess explosives

Count 1 - sentenced to 3 years 6 months imprisonment concurrent.

Count 3 - sentenced to 17 years and four months' imprisonment.

Single non-parole period of 13 years fixed. A period of 972 days in pre-sentence custody declared as time served under the sentence.

Convicted and not further punished in respect of the three summary charges.

I see no evidence that your views or motivation has changed. You remain a serious risk to the public. The sentence imposed on you must not only punish you by, most importantly, protect the community and deter you and others who might be tempted to behave like you [p41].

You did acts preparatory to engaging in brutal and savage acts which would have caused death and destruction to their immediate victims and were designed to cause fear and intimidation to the whole community [p42].

The offender was intercepted at the Brisbane Airport with tickets to travel from Australia to Kosovo and his passport was cancelled. He intended to travel to Syria with the intention of engaging in hostile activities in the Syrian conflict (count 1).

The offender subsequently obtained a shortened firearm and obtained or attempted to obtain petrol and other items to make Molotov cocktails, in preparation for or planning a terrorist act. The search of the offender's residence and vehicle also resulted in the seizure of two large machete-style knives, two balaclavas, an ISIS flag, a compound bow and arrows and various other ideological material, including 'The Book of Jihad' (count 3).

The offender was born in Australia, of Albanian descent. He was aged 21 at time of offences, 25 at sentence. Of the Sunni Muslim faith. Adhered to a radical strain of Islam.

The offender participated in a record of interview with police during which he admitted to purchasing the rifle and was in the process of equipping himself.

The offender supported the overthrow of the Assad regime in Syria through armed hostilities and the establishment in its place of a state governed by Islamic law. He believed that he and other Muslims had a religious duty to fight against those who sought to oppress Muslims and this provided part of the motivation for his offending.

The offender was on remand since arrest on 10 September 2014 and it was accepted that this time had not been easy (he spent about 3.5 months in solitary confinement when first detained. Precluded from any contact with family for first 3 weeks; first visit was after a month of being detained.)

R v Abbas [2018] VSC 533R

Convicted of conspiracy to do acts in preparation for or planning a terrorist act contrary to a11.5(1) and s101.6(1) of the Criminal Code (Cth): 24 years imprisonment with a non-parole period of 20 years.

Tinney J: The objective circumstances of the intended crime at the heart of the conspiracy for which you are to be sentenced are of the highest order of seriousness. You harboured extreme and unacceptable views about the need for and propriety of carrying out outrageous violence against innocent civilians... It would have been, as was your intention, a crime which would shock this country to the core. It would have represented a shocking and entirely unjustified attack upon our democratic system, a system under which you were brought up and have always lived, but whose rules you flagrantly chose to ignore [160].

The offender, together with his co-conspirators, planned and prepared to carry out a mass casualty terrorist attack in the Melbourne CBD, specifically an attack by detonating improvised explosive devices around Federation Square, Flinders Street Station and St Paul's Cathedral, on or around Christmas Day. The acts that were subject of the conspiracy included the purchase of chemicals and other items for the use in the manufacture or improvised explosive devices, the purchase of bladed weapons and the conducting of reconnaissance of the area around Federation Square in Melbourne.

In a Record of Interview, the offender stated that the goals was "to cause as much chaos, destruction, fear, bloodshed" as he could. The offender was motivated to enter into the conspiracy in pursuit of his ideological and religious objectives. He had an allegiance to the Islamic State group. He wanted Australia and its citizens to have 'a taste' of the suffering being inflicted on Muslims overseas.

The offender was born in Melbourne, Australia and was 22 years old at the time of the offence. During the period of the conspiracy, the offender lived with his wife and child. He was educated in an Islamic school for the entirety of his schooling and lost interest in religion for some years. At the age of 19, the offender's faith was rekindled after the illness and death of his uncle. After being introduced to the scholar, Anwar Al-Awlaki, the offender became inclined towards and supportive of the cause of Islamic State.

Limited co-operation with law enforcement agencies shown, the offender gave evidence in the trial of his co-accused, however, in passing sentence, it was noted, "To my mind, your admissions were neither full nor comprehensive... when you spoke to Police in the two interviews you had with them, you were none of these things. Rather, you sought to mislead them, and told a number of clear lies about matters of great importance. [138]

[1] The jury was empanelled on 27 August 2018 and delivered their verdict on 2 November 2018 (44 sitting days in total, preceded by 22 days of pre-trial legal argument). At the conclusion of the trial, the parties requested that the plea hearing be postponed until the completion of a further terrorist trial involving Chaarani and Mohamed (which I discuss later in these sentencing reasons). That proceeding, before Tinney J, was not completed until July 2019 and the plea hearing for this matter then had to await the completion of another lengthy trial in which I was involved; hence the delay in sentencing for this matter.

[2] See the following extract from the Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 15 October 2019), 72:

All right. Talk to us about the connection between Ibrahim Abbas and trips to Clonbinane?---Um we would go four wheel driving a lot. Um I went once a very long time ago before I met Ibrahim, before I watched ISIS videos with Chaarani. We - he - I had a Nissan Patrol GU, he had the same car and we would go four wheel driving there a lot. So I knew this place. So Ibrahim really wanted to test it. Ah the TATP did not work. Um we had gunpowder from the Bunnings strip things.

From the Ramset charge?---From the Ramset charge. So we went to um ah Clonbinane and I tested it. And it was a little bang and that's it. It didn't really work so we came back um, I tried to do it again but I got very lazy and it just stopped there.

[3] See the following extract from the Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 16 October 2019), 130:

All right. And the other thing I want to ask you about that is this; as of 22 December 2016, you admit that you engaged in acts in preparation of a terrorist act?---Yes.

Yes, agreeing to engage. Agreeing to commit acts in preparation of a terrorist act. Did those acts include the purchase of machetes?---It did.

And the attempt to construct a bomb?---At one point, yes.

And was a makeshift bomb detonated at Clonbinane?---Yes.

[5] See R v Kilic [2016] HCA 48; (2016) 259 CLR 256,266,[19] which requires sentencing judges to assess the objective seriousness of an offence.

[6] See R v De Simoni (1981) 147 CLR 383 and the following extract from the Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 15 October 2019), 59:

HIS HONOUR: Having qualms isn't inconsistent with me finding an intention that they intended to carry out in the CBD, most likely Federation Square, around Christmas time a major attack, major terrorist attack involving the setting off of interim explosive devices and running amuck with machetes, killing many innocent people.

MR TEHAN: Your Honour, it's with the greatest of respect, it's more accurate that the finding be that they agreed to engage in acts of preparation for a terrorist act. That doesn't necessarily mean that in a particular case, and I say in the particular case of Chaarani and also for Mohamed that they would have been there on Christmas Day slaughtering people. That's not what the element of the offence required to be proved.

HIS HONOUR: - - - in terms of sentencing, do you say the elements of the offence preclude me from making that the finding I just referred to?

MR TEHAN: You shouldn't make that finding unless it's a finding that is consistent with the elements of the offence, does not make them more guilty of another offence, because that would offend the De Simoni principle and is a finding that can be made beyond reasonable doubt. We say it can't be here in the case of Chaarani and Mohamed given, well, perhaps I'm covering Mohamed's territory here. But certainly he had openly on a TI shown qualms.

[7] [2010] VSCA 334; (2010) 30 VR 632, [17].

[8] He was an active participant in the execution of the conspiracy. He was involved in the acquisition of materials for IEDs, their construction (though he denied that they ever got an IED to work) and the testing of IEDs at Clonbinane. He was involved in the reconnaissance of Federation Square and surrounds and the purchase of the machetes.

[9] R v Ibrahim Abbas [2018] VSC 553 at [151].

[15] Transcript of the listening device material dated 25 December 2016.

[16] R v Ibrahim Abbas [2018] VSC 553 at [119].

[20] See Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 15 October 2019), 14:

[Whilst] he genuinely believes he could have challenged his brother at the time and still could, but the practical reality is and the nature of the evidence is that he didn't, and we submit couldn't, and to a certain extent he was a dupe but not to a whole extent.

[21] R v Ibrahim Abbas [2018] VSC 553 at [140].

[22] Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 15 October 2019).

[23] Such as the fact that you successfully completed Year 12, have been in the workforce for some years and were married for a time.

[24] Psychological report of Guy Coffey dated 28 July 2019, [98].

[25] See R v Mohamed, Chaarani & Moukhaiber [2019] VSC 498.

[26] Your date of birth being 18 September 1990.

[27] Your date of birth being 28 September 1992.

[28] See the following extract from the Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 15 October 2019), 48 (Mr P Tehan QC):

Really, I suppose the pressing matter in this case comes down to the level of concurrency that should be ordered between Justice Tinney's sentence and the sentence Your Honour will impose. That really is the most important issue in this case.

[29] [2009] VSCA 63; (2009) 23 VR 692.

[30] [2005] VSCA 11.

[31] (2017) 52 VR 272; [2017] VSCA 157.

[32] [2018] NSWSC 221 ('Alou').

[33] The following is drawn from your counsel's sentencing submissions (both written and oral) and the psychological report of Guy Coffey dated 28 July 2019 which was tendered at your plea hearing.

[34] Psychological report of Guy Coffey dated 28 July 2019, [55].

[35] R v Abbas [2018] VSC 553 at [110].

[40] Ibid, [48]; see also R v Abbas [2018] VSC 553 at [6].

[42] No evidence was adduced by you, Abbas, that being in a protection unit has made imprisonment significantly harder for you than an ordinary prisoner.

[43] Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 16 October 2019), 123.

[45] This seems to be confirmed by email correspondence I have received between your instructing solicitor and Corrections Victoria confirming that you will not be considered for a referral to the disengagement program until the completion of all outstanding court matters, including any appeal.

[46] See the following extract of the testimony from the Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 16 October 2019), 128 (Lines 13-24) (Mr Tehan QC):

And you understand, by making that admission, that any hope of appealing against conviction is lost?---Absolutely, I understand that.

And indeed you've instructed your lawyers to withdraw your appeal against conviction?---That's right. I understand the consequences of my renunciations and my standing here and I've - - - Yes. All right. (Indistinct words), Your Honour. Withdraw any draft of appeal against conviction?---Yes.

I don't think that one has actually been lodged, Your Honour, but there was a draft prepared. One ground which was a legal ground.

[47] R v Mohamed, Chaarani & Moukhaiber [2019] VSC 498 at [151].

[48] Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 15 October 2019), 66.

[60] For example, I do not accept your claim that when you attempted to travel to Malaysia on 27 May 2015 and were prevented from doing so by Australia Border Force, you were only planning on a very short holiday overseas. But I cannot be satisfied of the opposite beyond reasonable doubt.

[61] See Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 15 October 2019), 74.

[64] Abbas, your date of birth is 19 March 1995.

[65] The sentence imposed by Tinney J will expire on 20 August 2039, after which my sentence will run for 16 years, less the 241 days of pre-sentence detention. This means my sentence will expire on 20 August 2055, less 241 days which is 22 December 2054.

[66] The pre-sentence detention to be reckoned as served by both Chaarani and Mohamed in relation to this offending is 241 days between 22 December 2016 (the date of their arrest for this) and 19 August 2017. On 20 August 2017, Chaarani and Mohamed were charged with other terrorism offences for which they were sentenced by Tinney J on 24 July 2019. His Honour declared pre-sentence detention of 703 days for those offences. See R v Mohamed, Chaarani & Moukhaiber [2019] VSC 498 at [214].

[67] Chaarani, your date of birth being 18 September 1990.

[68] Mohamed, your date of birth being 28 September 1992.

[69] Offender was granted an extension to file a Notice of Appeal.