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[2016] VSC 537
General information, not legal advice.
Supreme Court of Victoria
2016-09-05
Croucher J
Original judgment source is linked above.
Background and circumstances giving rise to the offence
8 Before doing so, I turn to a more detailed summary of the circumstances giving rise to the offence. Mr Rapke QC, who appeared with Mr Doyle for the Crown, set out those circumstances in considerable detail in the prosecution opening, which he read to the Court and which became an exhibit on the hearing. Instead of repeating the entirety of the contents of that document now, I shall annex it to these reasons[3] and summarize its main features.
9 Also included in this summary will be some other relevant background information conveyed on the plea in mitigation by Mr Georgiou QC, who appeared with Ms Todd on behalf of Mr Besim.
10 One of the striking, yet disturbing, things about Mr Besim is that, for most of his life, he had a perfectly ordinary existence and showed no signs of the distorted thoughts that drove him to commit this offence. It was only once he became exposed, in his late-teens, to extremist, hate-filled thinking from older, hateful but charismatic individuals that his plans and actions took a decidedly sinister turn.
11 Sevdet Besim was born in Dandenong on 22 January 1997. As I have said, he was aged only 18 and the time of the offence and is now 19. He has lived his entire life at the same address in Hallam with his family.
12 His father Sefer is aged 48. He was born in Macedonia of Albanian parents. His mother Sajme is aged 43. She was born in Melbourne. Her parents are of Albanian origin too. Mr Besim's parents were married in Macedonia and then came to Australia and had four children, all boys. He is the third child in the family. His brothers are aged 25, 23 and 17. All are employed in good jobs. One is married and has a young child.
13 Mr Besim also has a large extended family living in Melbourne, including both maternal grandparents, as well as family in Macedonia.
14 He has had, and still has, a strong relationship with his parents. They visit him twice a week at the gaol and speak to him daily over the phone. Two of his brothers also visit when they can. His family remain very supportive of him, despite his crime.
15 Mr Besim attended primary schools at Hallam and Eumemmering and secondary school at Fountain Gate. He completed Year 12 at the end of 2014, although his VCE exams were interrupted because of his grief following the death of his friend Mr Haider. While he was studious and enjoyed school, he achieved only average grades. He liked subjects such as history and geography.
16 He has a particular interest in architecture and hopes to study that subject formally eventually. He did work experience with an architecture firm in Year 10. After completing Year 12, he enrolled in, but then deferred, a building and design course at RMIT. Successful completion of that course would have allowed him to study architecture.
17 Throughout his early teens, Mr Besim enjoyed the social and other activities that most young people enjoy in this community. He participated in sports (such as swimming, soccer and football), played video games and was interested in woodwork, cars and socialising with friends, many of whom were of different cultural and religious backgrounds. He did the usual teenage things, like going out to eateries, seeing a movie and "hanging out" at the local shopping centre.
18 Mr Besim had little time between leaving school and his arrest - which was only a matter of months - to become gainfully employed. While at school, however, he did some part-time work with his cousin, who is a florist at South Melbourne Market, and with one of his brothers, who is a tiler.
19 While Mr Besim grew up in a Muslim household, religion was not a major part of his life until about three years ago. His family belong to the Hanafi branch of Islam. Although his parents identified as Muslims, they were not particularly devout throughout their children's upbringing. They celebrated festivals such as Ramadan and Eid. They ate halal food. But that was about it.
20 In the last few years, however, Mr Besim's father has become more involved with his religion. He has abstained from drinking alcohol and started attending the mosque regularly of a Friday. His mother, on the other hand, tends to go to the mosque only on special occasions, such as Ramadan.
21 The mosque they originally attended was at Hallam. Then, about 18 months ago, the Imam at that mosque left and set up another place of worship at the Timbarra Aboriginal Centre. The Besim family followed the Imam across to Timbarra.
Family's cultural heritage, values and hopes for their son
22 The Besim family identifies strongly with its Albanian origins. Mr Besim is fluent in the Albanian language. Albanian culture was also a significant part of his upbringing. It had, as its focus, an emphasis on the importance of family and on teaching good values.
23 Mr Besim's parents say that he was never a problem child. They regarded him as a kind and considerate young person who showed respect towards his elders. The character references, which were also from other members of his extended family and neighbours, support that observation.[5] He did not smoke, drink alcohol or take illicit drugs. He was attentive towards his studies. He would have been the first in his family to go on to tertiary education. They held high hopes for him.
24 Up until the end of his Year 9 schooling, Mr Besim's only real connection with Islam was that he was born into a Muslim household. He observed some of the practices, but never fasted or attended the mosque. He was living very much a Western lifestyle. It was not that he rejected Islam; he simply did not practice its teachings. Nor did his parents insist upon his participation.
25 Mr Besim became more interested in his religion towards the end of Year 9. In that year, while he had friends from diverse cultural groups, he was particularly friendly with some students who were devout and who often would talk about the Koran. He felt embarrassed and hypocritical that he did not know much about his own religion and its teachings. Through his association with those students, he began to learn more about Islam. He started reading the Koran and attending the Hallam mosque. His religious observance got to the point that where he was praying five times a day; and, when he was not at school, he would go to the mosque quite often.
26 In Year 10, Mr Besim was introduced to the AlFurqan Islamic Centre in Springvale. He attended that centre on a few occasions that year but more often in Years 11 and 12. Unlike the Hallam mosque, where the lectures were religious, the lectures at AlFurqan were also political in their nature and focused on, among other things, the conflict in the Middle East and the fate of Muslims in that part of the world. The centre was known for its strict interpretation of the Koran. Its leader has been described as an influential and charismatic figure. This is also where Mr Besim met Neil Prakash, a man who went on to become a senior figure in the Islamic State, and a senior recruiter of Australian terrorists. (Mr Prakash was killed recently.)
27 In becoming more religious and then attending AlFurqan, Mr Besim found a group to whom he had a greater sense of belonging. Many in that group were older, and he was quite influenced by the religion, ideology and politics that were being espoused at the centre.
28 Sadly, however, some of the thoughts to which his young and impressionable mind was being exposed were vile and extremely dangerous. Further, as later events would demonstrate, he had become radicalized to the point where he fervently believed that violent jihad - both here and elsewhere - was justifiable. He had become increasingly admiring of individuals from groups such as the Islamic State and Al-Qaeda, people he felt "spoke out boldly for Muslims", as opposed to mainstream Islamic leaders, who, in his view, did little for change or justice. The more he immersed himself in these extremist views, the more he came to endorse them and the more committed he became to putting his beliefs into practice by violence.[6]
29 Against this background, a series of particularly significant events preceded Mr Besim's offending.
30 First, on 22 September 2014, the official spokesman for the Islamic State issued a fatwa in the following terms:
So O Muslim, do not let this battle pass you by wherever you may be. You must strike the soldiers, patrons, and troops of the idol worshippers. Strike their police, security, and intelligence members, as well as their treacherous agents. Destroy their beds. Embitter their lives for them and busy them with themselves. If you can kill a disbelieving American or European - especially the spiteful and filthy French - or an Australian, or a Canadian, or any other disbeliever from the disbelievers waging war, including the citizens of the countries that entered into a coalition against the Islamic State, then put your trust in Allah, and kill him in any manner or way however it may be. Do not ask for anyone's advice and do not seek anyone's Fatwa. Kill the disbeliever whether he is civilian or military, for they have the same ruling. Both of them are disbelievers. Both of them are considered to be waging war ... Blood becomes legal to spill through disbelief. So whoever is a Muslim, his blood and wealth are sanctified. And whoever is a disbeliever, his wealth is legal for a Muslim to take and his blood is legal to spill ... The best thing you can do is to strive to your best and kill any disbeliever, whether he be French, American, or from any of their allies. ... If you are not able to find an IED [an explosive incendiary device] or a bullet, then single out the disbelieving American, Frenchman, or any of their allies. Smash his head with a rock, or slaughter him with a knife, or run him over with your car, or throw him down from a high place, or choke him, or poison him.
31 The fatwa was widely reported in the Australian media. It was thought to be the first official instruction by the Islamic State to its supporters to kill "disbelievers" in Western countries.
32 Secondly, the very next day, on 23 September 2014, Numan Haider, aged only 18, was shot and killed when he tried to carry out a terrorist attack by stabbing police in Endeavour Hills. Mr Besim and Mr Haider were friends. They were about the same age and had known each other for a year or so. Indeed, Mr Besim had been with Mr Haider and another young person, Harun Causevic, in the hours leading up to the attack. As the psychologist Mr Newton reported, following Mr Haider's death, Mr Besim experienced "significant grief-related symptoms together with prominent anger, irritability and emptiness".[7] He was so distracted and grief-stricken that he failed to complete his VCE exams and, in consequence, did not receive a tertiary entrance score.[8] His focus on extremist ideas became even more intense. He became more alienated from mainstream religious views and more antagonistic towards the authorities - perceiving them as "enemies who killed [his] friend".[9]
33 Thirdly, later in 2014, after Mr Haider's death, Mr Prakash contacted Mr Besim through social media. Mr Prakash, it appears, was at "the battlefront", somewhere in the Middle East. He told Mr Besim about life on the front and encouraged him to follow his path. It was also Mr Prakash who provided Mr Besim with S's contact details.
34 Fourthly, with Mr Haider's death swirling around his mind, as well as thoughts of heading overseas and fighting for the Islamic State, on 13 November 2014, Mr Besim applied for a passport. On 9 December 2014, however, he was informed by letter that "a competent authority" was reviewing his application and might recommend to the Minister that he not be issued with a passport. Mr Haider had applied for a passport too, but that application had been refused only a week before his attack on police. I accept Mr Rapke's submission that, in view of the rejection of Mr Haider's passport application, Mr Besim held little or no hope that his application for a passport would be granted.
35 Fifthly, between 22 and 25 January 2015, Mr Besim conducted a number of internet searches associated with the Islamic State ("IS"). These included searches for publications issued by IS, including the Islamic State Report and a propaganda and recruitment on-line magazine called Dabiq, which glorified IS and contained pictures of those who were to be, or had been, murdered by IS, and speeches by leaders of IS urging Muslims to strike at citizens of countries participating in the US-led coalition.
36 Sixthly, subsequent police analysis of Mr Besim's mobile telephone revealed that, on 28 January 2015, he had created an electronic memorandum on the phone which amounted to a bay'ah or pledge of allegiance to the leader of IS. One of the Dabiq magazines later seized from Mr Besim contained a bay'ah in terms very similar to those in the memo. In one of his subsequent conversations recorded in March, he confirmed that had given his bay'ah to the head of IS about two months earlier.
37 Seventhly, on 2 February 2015, Mr Besim commenced making internet searches on the ANZAC Day commemoration to be held in Melbourne that year. Those searches included references to the Dawn Service, the Shrine of Remembrance and Camp Gallipoli.
38 It was against this background that Mr Besim made the decision to plan, or prepare for, a terrorist act in Melbourne.
39 The first series of acts relied on in support of the charge is Mr Besim's repeated communication with S via a telegram messaging application over a nine-day period from 17 to 25 March 2015.
40 On 17 March 2015, Mr Besim made his first telegram communication with S. He commenced by introducing himself as "the brother from Australia". Later, S posed a number of (what appeared to be) security questions. Mr Besim told him his name was "Sev", that he was 18, from Melbourne, Albanian and born in 1997. S told Mr Besim that he had two options - travel for jihad or an attack. Mr Besim said he could not travel because his passport was under investigation. S said that it was time to "[give] them what they deserve" and asked whether "shahada" (or martyrdom) is what he wanted. Mr Besim replied affirmatively. S asked how easy it would be to obtain a firearm, and Mr Besim said that someone has already found one for him, albeit a low calibre weapon. S asked Mr Besim whether he was "a lone wolf", to which Mr Besim responded "pretty much" and that he was "ready to fight these dogs on [their] doorstep. The more equipment [I'm] provided with the better but [I'll] still go with [just] a knife in my hand".
41 Later, Mr Besim said that he had "been planning with the brothers" and that his "main focus is authority". S said he would research targets in Melbourne and would give him one task when a target was identified. He encouraged Mr Besim to stay fit in the meantime - to run every day and to recite the Koran. Mr Besim confirmed he was committed to the attack and that he would stick to the task. He said he has "been motivated for the last [four] months" and that every time he goes out he "[feels] like doing something".
42 They continued to talk about weapons. Mr Besim said he had a large machete and a Taser. S urged Mr Besim to attack early as the intelligence agencies in Australia were "crazy". He said that Mr Besim must yearn to achieve martyrdom.
43 Mr Besim then asked S if he had heard about Numan Haider. He also said that he was with him on the day he committed his "op", which, he thought, explained why his own passport application was under investigation.
44 S told Mr Besim to be careful, to start dressing like "kuffar" (a derogatory Arabic word for a non-Muslims or non-believers)[10] and that the attack was to be unexpected. He told Mr Besim that all his money would be required for the operation, that he would need to get a firearm and that he would arrange a target. To this, Mr Besim responded that he "[can't] wait now for the op", that he would "love to take out some cops [or] [i]ntelligence agents" and that he was going to "meet with them [and] then take some heads". When asked for a list of those he hated the most in order to target them, Mr Besim replied the AFP, ASIO and police, and later said that he would "run the dogs over". S told Mr Besim that he would need to get some pictures of the police station. Mr Besim revealed that initially he had had the idea of storming the AFP headquarters in Melbourne.
45 On 18 March 2015, Mr Besim resumed the communication. He told S that he had been on a road trip with some brothers and sent an attachment showing a video-recording of him and a number of friends walking through a forest. Mr Besim then provided more information about himself, saying he lived in the Dandenong/Hallam area of Endeavour Hills.
46 Later in the conversation, S offered further operational advice, including the need to have black clothing, a scarf and a tawhid flag, and to smash his phone and burn it. Mr Besim said he had a shahada flag and that he wanted to leave a note regarding his burial and taking blame away from "brothers" close to him.
47 Mr Besim agreed with S's suggestion that the gun spoken of earlier might be more effective at close range - such as for "back head ambush shots" - but clarified that he could only get the gun if the brother came back from his current mission alive. S again counselled Mr Besim to be a lone wolf and not to trust anyone.
48 Mr Besim later explained that he already had orders to carry out an attack in Australia. He went on: "I see the best way to do this is to attack [Australia's] authority because by attacking [their] authority it shows weakness [and] it then means that the general population has less confidence in them and therefore is more scared ... putting fear into these kuffar".
49 Later that day, Mr Besim recommenced the conversation. They discussed how close police stations were to Mr Besim and how easy they were to access. The topic turned to Mr Besim's car and possibly using it in the attack or selling it to buy equipment for the attack.
50 They spoke about their families. Mr Besim said that he had two older brothers aged 24 and 22 and a younger brother aged 16. He said, "I've always been the good boy, best at school and home," to which S responded, "[You will be] the first ... to get shahada."
51 Mr Besim told S how his plans had changed since having his passport investigated. S said that Allah has given them both better opportunities. He urged him to "[s]trike them where it hurts most" and that it is "a test", to which Mr Besim responded, "Of course."
52 S asked when would be a suitable time for the operation, Mr Besim answered, "April 25, ANZAC Day." He went on to say, "Make sure the dogs remember this as well as [their] fallen [heroes]." He also said that that (date) would give "a lot of time for planning".
53 A little later, S sent Mr Besim a message referring to a terrorist attack at the National Museum in Tunis, Tunisia, on 18 March 2015, the day of these communications. In that attack, 22 people were killed and over 50 were wounded.
54 Early the next morning, on 19 March 2015, the conversation about the attack in Tunisia continued. Mr Besim indicated he hoped that Allah would reward those who organized these "ops" and said that "[t]hese dogs had it coming".
55 S cautioned him to act normally, especially around family. Mr Besim said that, for the past four months, he had continued to act normally around his family.
56 After Mr Besim referred to two dreams he had had about Mr Haider, they continued to discuss the attack and weapons. Mr Besim suggested that he could get hold of a firearm after he killed a police officer. After referring to the uncertainty as to whether the person from whom he was hoping to get a firearm would return to Australia, Mr Besim said that he was thinking that, if he could not obtain one, he would "run a dog cop over, take ghanimah [the spoils of war] and go". He then said that there was a handgun buried in his back garden and that he would look for it when his parents were away at a wedding.
57 Shortly thereafter, S sent a link to a news report about the Tunisian attack. Mr Besim remarked that he would have attacked parliament first. S then suggested that, prior to the planned attack on ANZAC Day, Mr Besim should "break into [someone's] house and get your first taste of beheading". Mr Besim said that that was a bit risky and reiterated, "If [I can't] get a weapon, [I just want to] drive [and] find a cop walking [and] run him over [and] take ghanimah and leave his head a few [metres] from his body."
58 Mr Besim then referred to Abu Kamboz, which is believed to be a reference to the Australian terrorist Neil Prakash. He said that Mr Kamboz "was sayin[g] he would get me a list of army servicemen who have been in [I]raq [and] then [I will] go to [their] house and take [them] out". Later, he confirmed he had not yet received the list. S spoke of the rewards offered by IS for killing pilots and warned Mr Besim to ensure he only kills in the name of Allah.
59 They briefly discussed girls and their mutual disdain for women not wearing the niqab (a veil which covers the head and face, worn by some Muslim women). S reminded Mr Besim that there were rewards in heaven, namely "the hoor" (virgins of paradise). They also discussed the virtues of being a mujahedeen on the day of judgment, when they could stand before God and show their battle scars. Mr Besim said, "How can [I] live here in peace while these dogs support and assist in the killing of our brothers and sisters."
60 After a period of about six hours without contact, they again discussed the Tunisian terrorist attack. Mr Besim sent a link providing information that an Australian national was one of the tourists killed. They rejoiced at this news. Both considered the attack a success. Mr Besim explained that his friend who was to arrange his firearm was killed fighting the Kurds; that they were "close"; that he was "happy for him"; and that they would "meet soon" (presumably, this was a reference to meeting in the afterlife).
61 Later, S presented three options for weapons for the attack - a knife, a car or a gun. Mr Besim said that it was "[t]ough to decide ... [a]ll [are] so good" and that he was thinking of "a combo of knife and car [because the] gun [is not an] option [at the moment]". He explained that Endeavour Hills Police Station was close to his house. S suggested making a false call to the police in order to attract them to his house so he could attack them. Mr Besim was not keen on that idea as he thought his phone calls were being monitored. S told him to get a machete, "sharpen [it] as hard as [you] can [and] [t]hen run a police[man] over and decapitate [him]". Mr Besim confirmed that that was what he had in mind.
62 S asked Mr Besim for pictures of the weapons. He warned him to make sure he does not get arrested as he needs shahada (martyrdom). Mr Besim said, "Getting arrested is the last thing I want." S said, "Run [over a] cop, shank [his] neck [and] then when all them gun police show up you go and try to attack them; [don't] look back; expect a bullet inside you ... [because] only with a gun can [you] expect guaranteed shahada." Mr Besim agreed, saying, "Sounds lik[e] a plan." He went on to say that the police would shoot, even if there was just a knife involved, as this was what happened with Mr Haider. The conversation concluded with Mr Besim indicating he needed to go to the mosque.
63 Communications resumed in the early hours of 20 March 2015. Mr Besim detailed what he did that day and engaged in a general discussion about animals and wildlife in Australia.
64 He indicated that the Tunisian attack had hit the news in Australia because an Australian had been killed. He said that IS had claimed responsibility for the attack and had released an audio clip. They discussed using "torbrowser" (private on-line browsing) to prevent being watched by authorities and then discussed attempting to obtain a firearm. Mr Besim confirmed the most likely option was the knife.
65 There was then a break in the conversation until the following day, 21 March 2015. That day, Mr Besim sent S a link concerning the conviction of Brusthom Ziamani, a London-based male who was plotting to behead a soldier. He then talked about his plans for later that day, referring to a BBQ and Al-Furqan. Later, Mr Besim spoke about how nationalism had been used by the unbelievers to divide Muslims. The conversation then turned to the latest issues of the Islamic State Report and Dabiq. Mr Besim confirmed that he had all of the publications.
66 S then asked Mr Besim if his real name was Illyas (the name he had been using on the messaging service). He said it was the name of his "kunya" (suggesting a parent). He reminded S that he had told him his real name was Sev; and said that his middle name was Ramadan. S suggested that the attack should be during Ramadan, in June. Mr Besim said he had been wanting to do the attack since September. S said that it was his choice. Mr Besim responded to the effect that "25 [April] is a good day [because it is ANZAC Day] and this will mean they will remember this on that day every [year] after". He said ANZAC Day is "close to the kuffar heart [because] they lost so many [people] ... The [government] gives a speech on how they will always be remembered".
67 S recommended a website where users could access details about home-made explosives. He said that it was recommended to him by a leader of IS and he had used it to help with planning 32 to 34 operations in Nigeria and Syria. Mr Besim then indicated that he had to leave to attend the BBQ organized by Al-Furqan.
68 Four hours later, Mr Besim recommenced the conversation while attending the BBQ, indicating that he had just finished playing soccer. He said that, when he played sport at school, he had a short temper with "the kuffar" and would give people injuries. He said that the last time he was practising, he speared a punching bag and ripped the whole top of the bag open. He then mused, "Spear a cop to the ground, take his head off as well."
69 The conversation again turned to weapons, specifically swords, machetes and knives, with Mr Besim indicating that he was going to a market the next day.
70 Mr Besim went on to state that the brother that died had been planning an attack for him since January. After his death, he had wondered what he was going to do. That was when "Kamboz", believed to be a reference to Neil Prakash, messaged him about S. Mr Besim also said that a "brother offered [him] a way out" but it was "really risky" and would "take a year", so he told the brother that he had "other things". He said that his passport had been under investigation for four months and that the authorities were watching him.
71 The conversation then turned to making a martyrdom video and publicising the attack. S said that he would need an official video before the attack, with information about his bay'ah and the motive for the attack. Mr Besim confirmed that he had a three-metre shahada flag in his room.
72 On 22 March 2015, the communication resumed at 1:09 a.m. During this conversation, S pretended that he was at home with his wife, who supported his plans to conduct a domestic terrorist attack.
73 The communications recommenced at midday, with S asking for photographs of the streets where the ANZAC parade was to take place. Mr Besim said that the parade was in the city and that it would be time-consuming and suspicious to be taking photos. S asked whether there was "space for a car to run over". Mr Besim thought there might be but said that the roads would be blocked off.
74 An hour later, the conversation recommenced with the two again discussing weapons for the attack. Mr Besim indicated that he considered guns and knives suitable. He said he would make the video when his parents were at a wedding. He then said that he really just wants to "run a cop over and cut [his] head and keep going till [he gets] shahada". Mr Besim spoke about the brother who could get him a gun not wanting him to do the "op".
75 At about 2:03 p.m., Mr Besim sent a nasheed (a tune or hymn or song) praising martyrdom. He said that, after Mr Haider "did his op here, ... it was enough for me to say, ['That's it; I'm doing this, I'm going to] fight these enemies of Allah'".
76 They continued to discuss YouTube videos and how emotional they found them. Mr Besim sent a link which featured a Moroccan male who served as a frontline commander for the Islamic State. He said he almost started crying watching the video and that "these kuffars must trip out [when] we are talking [a]bout [not being able to] wait for the day we die. But they do not understand. May Allah guide them or destroy them". Mr Besim confirmed that he had also been watching a video by a senior recruiter and motivator for Al-Qaeda.
77 On 23 March 2015 at 2:23 p.m., Mr Besim recommenced communications with S. They discussed the planned attack and how it could possibly go wrong. Mr Besim said:
Quick thing [I] wanted to bring up. [Let's] say [I'm] pulled over between now and the op. And the dog cops [want to] search my car. I got a machete, knife, Taser and shahada flag in the car. [Just] the flag and knife could get me [like two years]. In my mind, [I] would stab the dogs and go on a rampage. This would obviously stop my op. My point being is that this is a possibility [you] know. [It's just] a heads up. Raids [are] also a possibility. But [God willing] it doesn't happen and that the op goes to plan.
79 The conversation reverted to the acquisition of weapons, with Mr Besim indicating that he was waiting for money to acquire a machete, and that he had a brother who had "checked out" some machetes. S replied that it has to be heavy and sharp, like a sword, so that there can be a "[q]uick beheading, then move to next target". S also said that, if he feels as though the police know, he has to have a "Plan B". Mr Besim said he needed something to hide on his waist. He added that he tried this with a weapon a while back and no one had noticed it. When S asked Mr Besim to show him the weapon, he sent an attachment and said that it is about the size of his forearm. S said, "[That's] a weapon. Handle is perfect for tearing through throat." He went on to say that Mr Besim should not underestimate decapitation. He offered that it is hard and that the attacker has to be "a lion", especially when doing it in public. Mr Besim replied that, if the policeman is by himself (which, he added, would be rare), he would do his best, but the main thing is that "[I] send the dog to hell" and that, after being sure enough he is dead, he would "go for his gun". He then related that, only last night, when at McDonald's, he was watching police and where their gear is located on their person.
80 They talked about attacking police outside high profile places like Parliament, the courts and even police stations. They also wondered whether Mr Besim should attack a police station or a shopping centre. S cautioned against a police station because police would have training, weapons and procedures to react, whereas those at a shopping centre would not. Mr Besim said that "it would be good if [he] could arrange a meeting with intelligence agents [because] they [are] not armed". He suggested arranging a meeting at a carpark over his passport application and added that, "when they [are] coming towards me, [I'll] get out of my car armed and attack". He also said, "This is why [I'm] thinking, [if] on [ANZAC day, I] drive around a littl[e] until [I] find some [policeman] walking [and] run [him] over and go for it." He then exclaimed, "Damn, [I] need a gun."
81 S said to Mr Besim that, on ANZAC Day, he should "stick the shahada flag onto your bonnet [and] run people over", and "make [sure] no one [is] around [and] mak[e] sure [you] have [a] Taser". He urged him to do his best to get a gun, because time is running out for ANZAC Day. He then asked how much money he has. Mr Besim said he about $2,000 and that he receives $150 a fortnight from his parents. The two then continued to discuss the flag on the bonnet and how to secure it. Mr Besim said that he would use duct tape.
82 During the course of this conversation, S pretended that he had a son who was going to participate in a terrorist attack in the United Kingdom.
83 On 24 March 2015, the communications commenced with S providing advice on the lead-up to the operation. S said he had to have an eye operation around ANZAC Day. Mr Besim said that, if he could not contact him, he would just "go out there and keep stabbing till [I] get shahada". When asked by S how many people he had told about the planned attack, Mr Besim replied, "No one really, [there's just] a few brothers that know [I] want to do [something, but] they [don't] know dates or specifics about the op." S advised him to burn his phone and sim card.
84 S asked how many would die or be injured if he ran over a crowd on ANZAC Day. Mr Besim said that it depended on who got hit, but warned that he would not be able to drive his car into a crowd because the people would be up on the footpaths and his car was too low for that. S asked about the presence of armed officers at the parade. Mr Besim said they had about three every 10 to 20 metres, as well as some walking with "them" (presumably meaning the returned soldiers and others who march).
85 The conversation then turned to Tasers. Mr Besim said that his Taser is a "knuckleduster with [a] Taser on the front" and that, if you hold it long enough, it "burns you". He said it would drop another on the spot if applied to the neck but then suggested that it would be "more effective to stab the dog".
86 The communications recommenced at 3:03 a.m. on 25 March 2015. Mr Besim recapped his plan for the attack: "So far, the plan is to run a cop over [on] the [ANZAC parade and] then continue to kill a cop [and] then take ghanimah and run to shahada?" S responded, "[I'll] give orders soon but [it's] looking along that line." S took a screenshot of this conversation, pretending that he would send it to his son. S then asked how ready he was. Mr Besim said that he was ready, excited for it, and preparing himself - "[just] spending time gaining knowledge, purifying [my] intentions, and distancing myself from [material] possessions".
87 In relation to making a martyrdom video, Mr Besim said that the last time he made his bay'ah video, he recorded it with his tablet and had the bay'ah written on his phone which was leant on the tablet below the camera, "so ... it looked nice". Later, Mr Besim indicated a brother had deleted the video. S gave further instructions for the making of a martyrdom video. Mr Besim indicated that would he would create it in his bedroom but expressed concerns about sending the video via email for fear of monitoring by the authorities. Later, Mr Besim asked if Mr Kamboz (aka Neil Prakash) could send it via a telegram, as it was much safer. He also asked if S could write a list of things that he should cover in the video which, again, he confirmed he intended to make while his family was away at a wedding.
88 Later, Mr Besim went on to say that his mother was angry because he had left his job for the cause of Allah, but he reasoned that a martyr could intercede for 70 relatives, so if people "really cared for their parents they would rush to martyrdom". He said, "My motivation is jannah itself, [it's] the sacrifice of my life and my dunya to fight the enemy of Allah. To be able to show Allah what [I] sacrificed for him." Later, he remarked that kuffar reading this would think them "crazy, [b]ut we [just] love death more than life [and we] know [with] 100 [percent] conviction of the promise of our lord".
89 Mr Besim continued, saying that the attack had been five months in the making. S quipped, "[One] more, [t]hen shahada ... Make sure [you] get shot, Lol, Harsh but true." Mr Besim said, "I feel lik[e] a young kid with a ticket to [D]isney [W]orld [who can't] wait. Yeh, [I want to] make sure [I] get shot to[o]. Not [before I] take out at least [one]. May Allah grant me the strength to take out as many as possible." S responded enthusiastically, suggesting at least five (be killed), and Mr Besim said he would love to do so if he could.
90 S again referred to having an eye operation and that, in his absence, Mr Besim could talk to his son, as he knew everything about the "op". Mr Besim then told him he would love to have had a wife and child but knew that that it was not to be. He concluded by saying that he would leave the conversation open on his tablet so that, when he made the martyrdom video, he could send it via telegram.
91 The second particular of the charge on the indictment concerns Mr Besim's accessing websites relating to ANZAC Day in preparation for or planning the terrorist attack. This occurred on 22 March 2015. Digital analysis of Mr Besim's telephone revealed that he had viewed a number of websites relating to the ANZAC Day march, road closures and public transport. He downloaded an ANZAC Day pdf document onto his phone, which subsequently was copied onto his new phone on 14 April 2015.
92 On 25 March 2015, S, who had been arrested in the United Kingdom, was released on bail after being charged with a criminal offence. While on bail, S tweeted: "[A]nyone who has me on Telegram immediately self-destruct, police have my phone". S was re-arrested following further examination of his telephone and a review of the telegram communications with Mr Besim.
94 The Crown submitted that Mr Besim's decision to obtain a new mobile telephone and delete data on his old phone was a direct result of the advice posted by S on Twitter following his first arrest. I accept that submission.
95 On 29 March 2015, Mr Besim contacted the AFP and advised he had been informed by the Australian Passport Information Service that his passport application was the subject of an investigation by a competent authority. He inquired about the status of the investigation.
96 On 6 April 2015, Mr Besim again contacted the AFP and ASIO about the status of his passport application. On each occasion, he said that he needed a passport in order to travel to Dubai.
97 Thus, he may well have been harbouring the thought that there was still a possibility that could go overseas to fight.
98 On 8 April 2015, during a conversation with an associate Lindim Sulejmani, Mr Besim expressed concern about the recent behaviour of his friend Harun Causevic. Part of the behaviour that worried him was a series of telephone calls to the Australian Passport Office during which Mr Causevic became aggressive and referred to ASIO and the AFP as "dogs". Mr Besim's concern was that such behaviour might draw attention to him and thus jeopardise his plans. He said Mr Causevic had complained that, when Mr Haider was behaving in a similar fashion prior to his death, no one had censured him. He explained to his associate that Mr Causevic had been acting without knowledge and that he should gain knowledge first and then act on that knowledge. Further, Mr Besim said, "Now that I'm going somewhere (heaven) and it can get them in trouble."
99 During the afternoon of 9 April 2015, Mr Besim paid a visit to Mr Haider's grave at the Springvale Cemetery.
100 At 12:56 p.m. on 11 April 2015, Mr Besim made a social media post about brothers losing "their deen" and "[I]slamic values" and about cutting off their "[M]uslim brothers", as contact might mean they fall under surveillance. The post continued: "My one message to these people is to fear Allah only, these [kuffar] have shaken you to the point where you cut ties with the brothers, you sacrifice parts of deen and act like you [are] a jahil because you fear that these [kuffar] could one day call you, or kick down your door". Mr Besim specifically referred to ASIO, AFP, police, ASIS and DOFAT.
101 Later that day, at 8:06 p.m., Mr Besim made a further social media post in which he stated: "Brotherhood is between [M]uslims not jahils [and] especially not with [kuffar]".
102 On 13 April 2015 at 4:34 p.m., Mr Besim made a further social media post quoting the Koran about those who had been killed in the cause of Allah and rejoicing in their death: "A life of humiliation, no, I am not content with it. But love of death in glory is an aspiration. For no, by God, I do not fear the fate of death. For the slave has no place in the material world". Between these posts, Mr Besim accessed a video entitled "The crisis of ISIS & Black Flag. A Prophetic Prediction - Hamza Yusuf".
103 On 14 April 2015, the home screen on Mr Besim's mobile phone had the IS flag set as the background wallpaper.
104 While the Crown relied on the various internet sites accessed by Mr Besim on 22 March as part of his preparation for and planning of the terrorist attack to take place a month later, the other activities to which reference has just been made were relied on not as part of the offence charged but simply as confirming his ongoing intention to carry out that attack and his commitment to militant Islam.
Internet searches relating to Dandenong ANZAC Day commemorations
105 The third particular of the charge concerns Mr Besim's conducting internet searches relating to the Dandenong ANZAC Day commemoration.
106 On 15 April 2015, the following searches were conducted and internet sites accessed by Mr Besim on his new mobile phone:
a) the "Dandenong Cranbourne RSL Facebook" website at 4:55 a.m.;
b) "ANZAC Day Dawn Service - City of Greater Dandenong";
c) the "ANZAC Day dawn service" page on the City of Greater Dandenong website at 4:55 a.m.;
d) Google searches on "Clow Street, Dandenong" at 4:56 a.m., 4:58 a.m. and 12:15 p.m.; and
e) the "What's on ANZAC Day" page of the Dandenong Journal website at 4:57 a.m.
107 The Dandenong Returned Services League (RSL) is located in Clow Street, Dandenong. ANZAC Day services for the Dandenong RSL were scheduled to occur in Clow Street at 5:45 a.m. and 10:30 a.m. on 25 April 2015. Mr Besim was aware of the location of the Dandenong RSL and that a local service was to be held there.
108 On or about 18 April 2015, Mr Besim completed an electronic memo on his mobile phone. The Crown submitted that what he put on his phone was his religious and ideological manifesto in which he set out his reasons for the attack and his expectation that he would die in the course of it. He gave instructions on his burial and left a message for his family - things that would be written and kept only if he were seriously intending to carry out a terrorist attack in which he expected to be killed. I accept that submission.
109 Digital forensic analysis of the mobile phone found in Mr Besim's possession after his arrest revealed that, on 21 January 2015 at 1:58 a.m., an electronic memo was first created on the phone. This was one week before Mr Besim created the bay'ah on his phone. The forensic analysis revealed that the memo was last modified at approximately 1:00 a.m. on 18 April 2015, three months after it was first created. That memo included the following:
A while ago world leaders declared war on Islam and Muslims, invading lands, dividing us into separate nations, installing puppets, killing and torturing Muslims. This war had always had a[n] impact on me, however recently my brother Numan (may Allah accept him) carried out his attack, this opened my eyes up to the reality of who the enemy is. Since then a growing feeling within me had led me to decide to carry out my own. To establish my jihad in Australia, to fight the oppressors, those who have implemented man made law, to fight to make Allah's word known and the highest, to defend Islam and put fear into those who are enemies to Allah and his religion Insha'Allah. At first I wanted nothing else but to leave this country and live in the Islamic State, however after many complications with my passport I realised this could not be done. So I started to prepare myself for my attack against the enemies of Islam, as Allah says in Quran-8:60:
And prepare against them whatever you are able of power and or steeds of war by which you may terrify the enemy of Allah and your enemy and others besides them whom you do not know [but] whom Allah knows. And whatever you spend in the cause of Allah will be fully repaid to you, and you will not be wronged.
It is essential for authorities and my family to understand this decision is wholly my own, no one influenced me to do this, no one 'brainwashed' me into this, none of my close brothers in Islam put this in my head, the only ones that could be appointed any recognition would be my brothers in Dawlah Islamiah. To my family I'd like to say, do not cry and weep for me Insha'Allah [I] am shaheed Insha'Allah & will be granted Jannaj Al-Firdous, [I] will be able to intercede for you on the day of judgment Insha'Allah.
Quran 3:169: And never thing of those who have been killed in the cause of Allah as dead. Rather, they are alive with their Lord, receiving provision.
Concerning my burial, [I] do not want my grave to be decorated, no stone work or flowers. Simply a wood or stone marking my grave and my name, it is to be done within Islamic guidelines. For my close brothers (outside of family) who want to attend, let them, no one is to be blamed for this action i took it on my own accord, influenced by Quran and Sunnah.
Finally whatever money I have left is to pay off any debt [I] might have on my name, the rest is for charity to go overseas to help the poor and needy in Muslim countries. Do not let violence [break] out due to my death between my family and close friends (brothers in Islam). Also to my family turn to Allah, practice your religion properly, do not compromise for anything. Anyone mentioned in my will is to be informed and shown my will.
110 At 3:42 a.m. on 18 April 2015, members of the Special Operations Group arrested Mr Besim at his family residence in Hallam. He was found in the lounge room covered by a doona and blankets. He was aggressive towards police and was arrested after being restrained.
111 Search warrants were executed at his residence and on his car. In the car, police found a Rambo knife (with a blade of about 40 centimetres) under the driver's seat, and a locking tactical knife in the glovebox.
112 In Mr Besim's bedroom, police found a large black flag containing the shahada in white Arabic writing, ten Islamic textbooks, various Islamic documents and a letter dated 9 December 2014 relating to the review of Mr Besim's passport application.
113 Police also found Mr Besim's new mobile phone and charger, a tablet, a watch and a computer.
114 Analysis of the various electronic items revealed an extensive internet search history of extremist material focusing on the Islamic State and, on his mobile phone, the telegram messaging application. The electronic devices contained numerous images, audio files, videos and pdf documents, many of which contained extremist material.
115 Police also found a knuckleduster and a Taser disguised as a black iPhone.
116 After his arrest, Mr Besim was taken to the AFP headquarters where he participated in a taped record of interview. During the course of the interview, amongst other things, he said the following:
117 At the conclusion of the interview, Mr Besim was charged. He has remained in custody since then.
118 I turn now to the nature and gravity of the offence.[11]
119 The offence of doing an act in preparation for, or planning, a terrorist act carries a maximum penalty of imprisonment of life,[12] which indicates just how seriously the legislature views the worst examples of the offence. Another measure of the potential gravity of the offence is that it carries the same maximum penalty as the completed offence of actually engaging in a terrorist act[13] and a heavier maximum than for some other terrorist offences, such as providing or receiving training connected with terrorist acts (25 or 15 years' imprisonment),[14] possessing things connected with terrorist acts (15 or 10 years' imprisonment)[15] and being a member of a terrorist organization (10 years' imprisonment).[16]
120 The offence of doing an act in preparation for, or planning, a terrorist act has a far greater reach than traditional offences - even greater than inchoate offences such as attempt, conspiracy and incitement - in that it criminalizes preparatory terrorist behaviour that hitherto has not been regarded as criminal. But at least one of the purposes behind this expansion of the criminal law is clear enough: it is to enable the intervention of the authorities at an early stage to prevent planned terrorist activity from coming to its horrifying conclusion.
121 That the offence does criminalize preparatory behaviour makes it more difficult to assess the gravity of the offending according to the more familiar notions of criminal culpability. However, the courts have recognized that the harm that was intended had the planned act been committed is an important matter informing the assessment of the gravity of the offence. Equally, it has been said, by the Court of Appeal of this State, that it would be "a mistake to consider that ... the sentence must reflect the moral and criminal culpability of the commission of the terrorist act planned".[17]
122 Instances of the offence can vary very substantially in their level of seriousness. At the gravest end of the spectrum, the offence could involve behaviour preparatory to the murder of, say, thousands of people with the intention of advancing a political, religious or ideological cause, such as violent jihad, and of intimidating the government and the people of this nation. Such an offence might be as grave as actually committing a terrorist act that involved the killing of several people. A much less serious example of the offence, albeit still serious, would be behaviour preparatory to causing grave damage to property accompanied by a similar motive or intention.
123 The offence committed by Mr Besim fell somewhere between these two extremes. As I have said, it involved communicating with another and searching the internet in preparation for, or planning, the act of killing and beheading a law enforcement officer on ANZAC Day, in a public street, all with the intention of advancing violent jihad and intimidating the Commonwealth Government and the people of Australia.
124 On the one hand, the offence was at once terrifying and evil. That Mr Besim was planning such an outrageous and gruesome act of murder must terrify law enforcement officers across this country, their loved ones and right-thinking members of the community. It was also evil because, among other things, the planned behaviour was calculated to undermine the authority of the institutions of government, to strike fear into the hearts of the community and, to use Mr Besim's own words, to "make sure the dogs remember this as well as [their] fallen heroes [on ANZAC Day]".
125 Further, while the acts of preparation and planning were relatively simple, those acts were carried out over a month, were preceded by thoughts of acting in such a way for some months and were accompanied by a hatred for law enforcement officers that is chilling in anyone, let alone one so young. Thus, these were not fleeting thoughts and actions abandoned as quickly as they came to mind. They were actions in pursuit of beliefs held for a considerable period. In addition, Mr Besim had done virtually all of the preparation and planning required for the murder, and was only a week from attempting it, when, fortunately, his plan was uncovered and he was arrested.
126 On the other hand, as Mr Rapke accepted, that there was one death intended and that Mr Besim was to act alone are factors that make this a less serious example of the offence than that which was committed by the conspirators in DPP (Cth) v Fattal,[18] who were planning to go to the army base at Holsworthy in Sydney and kill "as many personnel that could be found", whether they be "army personnel, civilian, male or female".
127 Further, since one of the purposes of criminalizing such behaviour is to frustrate terrorist acts in their infancy, in assessing the gravity of the offence, it must also be proper to have regard to whether the terrorist act in question was ever going to be committed. While most of the outward signs are that Mr Besim would have tried to go through with the planned murder, for reasons that follow, I entertain the possibility that he might have pulled out. While he had effectively left a suicide note for his family, which, along with the tenor of most of his conversations with S, suggested a fixed resolve to attempt to carry out his gruesome plan to its inevitable end, there are suggestions, perhaps faint but they are there, in their conversation from 2:23 p.m. on 23 March 2015 that Mr Besim was setting up an excuse for abandoning his planned "operation" in the event that he weakened. For example, he mused that, if pulled over in his car by police, he could be charged with offences concerning his possession of things such as a knife, a Taser, a machete and a shahadah flag, and that that might land him in gaol for two years, which "would obviously stop [his operation]". Then, as if to make sure that S understood that this could happen, he repeated - unnecessarily and a little tellingly, it seems to me - that "this is a possibility"; that this was "just a heads up"; and that "[r]aids [are] also a possibility"; but that he hoped none of this would happen and that the operation would "go to plan". I should add that, in the next breath, Mr Besim quipped that, if he were pulled over, he would "stab the dogs and go on a rampage". And, later, the conversation returned to the disturbing detail of how the planned killing might occur, with S cautioning of the difficulty of decapitation, "especially ... in public". But, as I say, these and other remarks in the same conversation suggest to me the reasonable possibility that Mr Besim recognized in himself that, despite his resolve to murder a police officer in the name of violent jihad, when it came to the appointed day, the natural human inclination to self-preservation, if not a reluctance to kill another human being, might cause him to abandon his ultimate plan and hope that he was arrested for some lesser offence, which in turn might still allow him to save face.
128 The latter point should not be overstated. It is a small consideration in my assessment of the gravity of the offence. That said, along with other considerations to which I shall come shortly, it does give me at least a measure of confidence that Mr Besim is not as irretrievable as his offence would seem to suggest.
129 Overall, however, I accept Mr Rapke's submission that the offence to which Mr Besim has pleaded guilty is properly to be regarded as objectively very serious notwithstanding that no terrorist act ultimately occurred.
130 I turn now to the factors which, if accepted, must be taken into account in mitigation of the sentence to be imposed on Mr Besim.
131 First, I shall deal with the question whether Mr Besim has since renounced violent jihad.
132 In two reports tendered on the plea, psychologist Patrick Newton reported that Mr Besim now disavows any intent to pursue violent extremism. While he continues to espouse a conservative interpretation of Islam, he told Mr Newton that he believes change in society would best be achieved through discussion, political advocacy and similar means rather than through violence. He also told Mr Newton that he had changed his views over a matter of months, in the context of various discussions with moderate Imams, as well his own reflections and reading.
133 Mr Rapke submitted that I should not act on these hearsay assertions of renunciation unless they were supported by evidence on oath or affirmation from another source, such as Mr Besim himself. Mr Besim did not give any such evidence. Nor were any Imams to whom Mr Besim had spoken in prison called on the plea.
134 Mr Rapke also submitted that I should direct, pursuant to s 4 of the Evidence Act 2008 (Vic), that the rules of evidence apply to this issue, as its resolution involves proof of a fact that is significant in determining sentence.
135 He further submitted that, not only should I fail to be satisfied on the balance of probabilities that Mr Besim had renounced violent jihad, but that also I should be satisfied beyond reasonable doubt that he is still committed to that course of action. In this regard, he pointed not only to the evidence of the conversations he had with S and his internet searches, but also to materials found in his prison cell, including slogans marked on his wall soon after his arrest, sketches of what appear to be an Islamic State flag and newspaper cuttings concerning the activities of other Australian terrorists.
136 As I understood him, Mr Georgiou accepted that it was appropriate to invoke s 4, but submitted that, despite a lack of viva voce evidence from Mr Besim on this issue, I should be satisfied on the balance of probabilities that he has renounced violent jihad.
137 I accept that I should direct that, under s 4, the rules of evidence apply to the resolution of this issue. Proof that Mr Besim had renounced violent jihad would be a significant matter in mitigation. It is therefore in the interests of justice to require the rules of evidence to be applied to the resolution of such a fact, at least in so far as it is pressed and disputed respectively as a matter in mitigation, the onus of proving which rests on the accused on the balance of probabilities.
138 Having considered all of the material before me on the plea, while I am not satisfied beyond reasonable doubt that Mr Besim still holds violent jihadist beliefs, I am also not persuaded, on the balance of probabilities, that he has renounced such beliefs. Given the vehement way in which he expressed himself in his conversations with S, and given the nature of the offence he committed, I am not satisfied beyond reasonable doubt that Mr Besim would allow himself to be seen as publicly denouncing violent jihadism unless he had doubts about the correctness of the views he held at the time of committing the offence.[19] Of course, it is possible that this is nothing more than a cynical ruse designed to secure him a reduced sentence. But, as I say, I cannot exclude the possibility that the depth of his beliefs, as revealed in his conversations with S and his earlier behaviour, would not allow him to utter such thoughts to Mr Newton unless he doubted the beliefs that motivated his offending. It is also positive that he is consulting so-called moderate Imams, which is not disputed by the Crown.
139 Equally, however, in the absence of viva voce evidence from Mr Besim, who is the one best placed to answer the question, I am not prepared positively to accept, on the balance of probabilities, that he has in fact renounced violent jihadism. Added to that is Mr Newton's opinion that, when pressed on the processes by which his views changed, Mr Besim's insight was found to be only formative and superficial. Further, it would have been preferable to have heard from the Imams he has consulted, but, as I said, they were not called to give evidence.
140 In my view, the materials found in his prison cell do not advance the matter. The slogans on the wall were found soon after his arrest, well before any asserted change in view. There is no evidence as to when the IS flag was drawn. And, given his history and circumstances, the newspaper articles would be of interest to him irrespective of his views about violent jihad.
141 In the result, while I am not satisfied of his renunciation of violent jihad as a factor in mitigation, my doubt about whether he still adheres to those beliefs impacts on other matters, such as his prospects of rehabilitation and sentencing purposes such as the weight to be accorded to protection of the community, to which I shall come shortly.
142 Secondly, similar submissions were made by both parties as to Mr Besim's denial to Mr Newton of making the pledge to the leader of Islamic State.
143 I do not hold the same doubt about the making of the pledge. Mr Besim admitted doing so to S. He had the pledge on his phone. Without evidence on oath or affirmation from Mr Besim, I am not satisfied on the balance of probabilities of his denial of making the pledge and I do not harbour the same or any reasonable doubt that he did so. It strikes me as an afterthought, consistent with his assertion that he has renounced violent jihad, about which I have already expressed my finding, but as not reflecting the true state of affairs as they existed at the time of the offending.
144 Thirdly, I accept that Mr Besim's youth and immaturity are significant mitigating factors.[20]
145 He was just 18 at the time of the offending and is now only 19. Mr Newton opines that Mr Besim is, in some respects, immature and that he lacks sophistication.
146 I also accept that, in his late-teenage years, Mr Besim was exposed to extremist ideas by older and charismatic individuals who corrupted his thinking. Further, Mr Newton opines, and I accept, that the death of his friend Mr Haider led to his profound alienation from mainstream society.
147 Mr Newton says that Mr Besim's personality is still in the process of forming. In his view, it would be preferable if Mr Besim could continue to be exposed to a long-term de-radicalization programme and to be insulated from extremist views. I agree.
148 Fourthly, it is significant that Mr Besim has no prior convictions but a previous history of good character.[21]
149 The references tendered on the plea speak of a quiet, kind and considerate boy who has behaved completely out of character.
150 While it may be true that young people of previous good character often commit terrorist offences, in my opinion, that does not deny the importance of youth, immaturity and previous good character as mitigating factors. This is all the more important when a youth's mind has been corrupted by adults who should know better. It is essential that the law recognize this reality and factor into sentencing the impressionability of youth, and the consequent effect that has on moral culpability, and that the reform of a corrupted youth is a worthy aim in itself.
151 The fifth possible factor in mitigation is that Mr Besim has pleaded guilty to the offence.[22]
152 No witness were called at the committal hearing and instead Mr Besim accepted a straight hand-up brief to this Court. On the day appointed for some pre-trial legal argument, a new indictment was filed and Mr Besim pleaded guilty.
153 The plea has avoided a trial and, I accept, indicates a willingness to facilitate course of justice. It is a significant step for anyone, and particularly one so young, to admit his guilt of such a serious offence.
154 In my view, the plea of guilty is a very significant matter in mitigation. It also impacts on other considerations, such as contrition and rehabilitation, to which I now turn.
155 Sixthly, I am satisfied that Mr Besim has shown a level of contrition for his offending.[23] While I would be more confident of a greater level of remorse had I been satisfied that Mr Besim had renounced violent jihad, I am nevertheless satisfied of some contrition, for three reasons.
156 First, Mr Besim's plea of guilty suggests a measure of remorse.
157 Secondly, the references, which were not challenged by the Crown, speak of remorse.
158 Thirdly, and this is perhaps a minor consideration, but the way in which Mr Besim has conducted himself in this Court suggests a young man who accepts that he has done wrong and who is accepting of the authority of the Court. He has not refused to stand when asked to do so or turned his back, which is behaviour not unknown for other alleged or convicted terrorists.
159 The seventh possible matter in mitigation is that there is an element of additional hardship for Mr Besim while in prison.[24] Given the nature of his offence, he has served his time in "protection", which status is likely to continue for the foreseeable future.
160 Finally, I am satisfied that Mr Besim has good prospects of rehabilitation.[25] Again, while I would have been more confident of substantially better prospects of rehabilitation had I been satisfied that Mr Besim had renounced violent jihad, I am nevertheless satisfied of that his prospects are good, for the following reasons.
161 First, his previous good character, plea of guilty and contrition point in that direction.
162 Secondly, that he is young and his views about important matters are still being formed satisfies me that he can be steered away from inappropriate thoughts and actions and set on the right path. It is also promising that he is consulting moderate Imams.
163 Thirdly, Mr Besim is fortunate to have the support of a close-knit family. His parents and siblings visit him regularly in prison and, I accept, will continue to do so.
164 Fourthly, while he has worked only briefly in his short life, Mr Besim appears to have the intelligence and ability to secure meaningful employment in the future. He has been working as a billet in prison, as well as doing courses[26] and pursuing his interest in architecture.
165 In my view, all of this bodes well for the future.
166 I turn now to the purposes of sentencing.[27]
167 In my view, general deterrence, specific deterrence, curial denunciation and punishment are important sentencing purposes in the present case.
168 While it might be said that general deterrence must be hard to achieve for those who are prepared to kill themselves in the name of violent jihad, not all would-be terrorists are so minded and, in any event, the Court must be astute to denounce such behaviour in the strongest terms and to send a signal that such outrageous crimes will be met with condign punishment, even when the planned terrorist acts do not come to fruition.
169 Specific deterrence is also important, but it is moderated by the fact that Mr Besim is young, has no prior convictions, has pleaded guilty, has shown some contrition and has good prospects of rehabilitation.
170 Protection of the community is also an important consideration in this case. Again, had I been satisfied that Mr Besim had renounced violent jihad, I would have considered community protection to be of less importance. However, even allowing for my doubts that he still harbours such views, it is appropriate to reflect that uncertainty in the need to give significant weight to the protection of the community.
171 Finally, rehabilitation is also an important purpose for fixing sentence in this case. Mr Besim's youth and prospects for rehabilitation make that so. Further, it must be understood that the order of sentence to be imposed means that Mr Besim will be released back into the community eventually in any event. In my view, it is far better that he be returned to the community with his chances of reform maximized rather than crushed by a sentence that otherwise does no more than incapacitate him.
172 On the plea, counsel referred me to several other cases in which sentences have been imposed in this and other states for terrorist offences of the same or a similar character.[28]
173 Sometimes, case comparisons can be a useful tool in gauging sentencing practices. However, counsel were unable to direct me to any cases similar to the present case. My own researches also have failed to produce any meaningful comparators.
174 Thus, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentence for Mr Besim's offence, with no particular guidance from case comparisons.
175 That said, in sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. And, in any event, sentences are not precedents to be distinguished or applied.
176 However, there was one decision that afforded more helpful guidance than the others. As I indicated earlier, Mr Rapke accepted that the offence committed in DPP (Cth) v Fattal & Ors[29] was more serious than Mr Besim's offence, principally because that offence involved an intention to kill as many people as possible, whereas Mr Besim's offence was confined to an intention to kill one person. I accept that submission. In R v Fattal & Ors,[30] King J imposed a sentence of 18 years' imprisonment with a non-parole period of 13-and-a-half years on each of the three offenders. Those sentences were imposed following a long trial on men who were in their late-20s and early-30s. I should have thought that Mr Besim's comparatively less serious offence, combined with his youth, would have compelled a sentence in the order of 15 years' imprisonment had he not pleaded guilty. As it happens, such a sentence would fit comfortably with the sentences imposed by King J and endorsed on appeal by the Court of Appeal.[31] But, of course, Mr Besim did plead guilty and has several other related mitigating factors to be weighed in the balance.
177 Another case of passing relevance concerns the sentence imposed on S in the United Kingdom for his role in the offending connected with Mr Besim. It is of course difficult to compare the two cases, for S was only 14 and was sentenced for a different offence and under a quite different sentencing regime.[32] It is interesting to note, though, that he received a sentence of life imprisonment with a non-parole period of five years. It is difficult to conceive of a 14-year-old receiving a life sentence in this country. Another striking difference is the massive disparity between the head sentence and the non-parole period. As will be seen shortly, the Commonwealth Parliament has taken the opposite approach to non-parole periods for terrorist offences, by requiring that they be at least three-quarters the length of any head sentence. Counsel did not urge me to treat this sentence as a relevant comparator - correctly, in my view.
179 Balancing all factors as best I can, for the offence of doing acts in preparation for or planning a terrorist act, Mr Besim is convicted and sentenced to ten years' imprisonment.[33]
180 Section 19AG of the Crimes Act 1914 (Cth) requires that I fix a non-parole period of at least three-quarters the length of the head sentence.[34] Mr Rapke conceded that the non-parole period should not exceed that proportion of the head sentence. I fix a non-parole period of seven-and-a-half years.[35]
181 Had I been allowed the usual discretion to do so, I would have fixed a non-parole period of six years, particularly given Mr Besim's youth, previous good character, plea of guilty, remorse and prospects of rehabilitation. But, in my view, the law does not allow me to fix that non-parole period and work backwards to the corresponding head sentence. Rather, I must fix what I consider to be the appropriate head sentence and then fix the non-parole period in accordance with the limitation imposed by s 19AG. That is what I have done.
182 Pursuant to s 16E of the Crimes Act 1914 (Cth) and s 18 of the Sentencing Act 1991 (Vic), I declare that this sentence commences today and that 507 days (including today) be reckoned as served under this sentence.
183 Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that, but for Mr Besim's plea of guilty, I would have imposed a sentence of 15 years' imprisonment with non-parole period of 11 years and three months.[36]
"So O Muslim, do not let this battle pass you by wherever you may be. You must strike the soldiers, patrons, and troops of the idol worshippers. Strike their police, security, and intelligence members, as well as their treacherous agents. Destroy their beds. Embitter their lives for them and busy them with themselves. If you can kill a disbelieving American or European - especially the spiteful and filthy French - or an Australian, or a Canadian, or any other disbeliever from the disbelievers waging war, including the citizens of the countries that entered into a coalition against the Islamic State, then put your trust in Allah, and kill him in any manner or way however it may be. Do not ask for anyone's advice and do not seek anyone's Fatwa (Islamic decree). Kill the disbeliever whether he is civilian or military, for they have the same ruling. Both of them are disbelievers. Both of them are considered to be waging war...Blood becomes legal to spill through disbelief. So whoever is a Muslim, his blood and wealth are sanctified. And whoever is a disbeliever, his wealth is legal for a Muslim to take and his blood is legal to spill...The best thing you can do is to strive to your best and kill any disbeliever, whether he be French, American, or from any of their allies.
If you are not able to find an IED or a bullet, then single out the disbelieving American, Frenchman, or any of their allies. Smash his head with a rock, or slaughter him with a knife, or run him over with your car, or throw him down from a high place, or choke him, or poison him.
We pledge allegiance to the Leader of the Believers Ibraheem ibne Awaad Al Qurayshee Al Husaynee to listen to him and to obey him in difficulty and in ease, in likes and dislikes and in that which impacts us, and to not dispute a matter unless we see clear disbelief/apostasy that we have proof of from Allah, and Allah to what we say is a witness.
In the name of Allah the beneficent, the Merciful
A while ago world leaders declared war on Islam and Muslims, invading lands, dividing us into separate nations, installing puppets, killing and torturing Muslims. This war had always had a impact on me, however recently my brother Numan (May Allah accept him) carried out his attack, this opened my eyes up to the reality of who the enemy is. Since then a growing feeling within me had led me to decide to carry out my own. To establish my jihad in Australia, to fight the oppressors, those who have implemented man made law, to fight to make Allahs word known and the highest, to defend Islam and put fear into those who are enemies to Allah and his religion Insha'Allah. At first I wanted nothing else but to leave this country and live in the Islamic State, however after many complications with my passport I realised this could not be done. So I started to prepare my self for my attack against the enemies of Islam, as Allah says in Quran-8:60
And prepare against them whatever you are able of power and or steeds of war by which you may terrify the enemy of Allah and your enemy and others besides them whom you do not know [but] whom Allah knows. And whatever you spend in the cause of Allah will be fully repaid to you, and you will not be wronged.
It is essential for authorities and my family to understand this decision is wholly my own, no one influenced me to do this, no one 'brainwashed' me into this, none of my close brothers in Islam put this in my head, the only ones that could be appointed any recognition would be my brothers in Dawlah Islamiah. To my family I'd like to say, do not cry and weep for me Insha'Allah i am shaheed Insha'Allah & will be granted Jannaj Al - Firdous, i will be able to intercede for you on the day of judgment Insha'Allah.
And never thing of those who have been killed in the cause of Allah as dead. Rather, they are alive with their Lord, receiving provision,
Concerning my burial, i do not want my grave to be decorated, no stone work or flowers. Simply a wood or stone marking my grave and my name, it is to be done within Islamic guidelines. For my close brothers (outside of family) who want to attend, let them, no one is to be blamed for this action i took it on my own accord, influenced by Quran and Sunnah.
Finally whatever money I have left is to pay off any debt i might have on my name, the rest is for charity to go overseas to help the poor and needy in Muslim countries. Do not let violence brake out due to my death between my family and close friends (brothers in Islam). Also to my family turn to Allah, practice your religion properly, do not compromise for anything. Anyone mentioned in my will is to be informed and shown my will.
Therefore let those fight in the way of Allah, who sell this world's life for the hereafter; and whoever fights in the way of Allah, then be he slain or be he victorious, We shall grant him a mighty reward.
And what reason have you that you should not fight in the way of Allah and of the weak among the men and the women and the children, (of) those who say: Our Lord! Cause us to go forth from this town, whose people are oppressors, and give us from Thee a guardian and give us from Thee a helper.
Those who believe fight in the way of Allah, and those who disbelieve fight in the way of the Shaitan. Fight therefore against the friends of Shaitan; surely the strategy of the Shaitan is weak.
Surely Allah had bought of the believers their persons and their property for this, that they shall have the garden; they fight in Allah's way, so they slay and are slain; a promise which is binding on Him in the Taurat and the Injeel and the Quran; and who is more faithful to his covenant that Allah? Rejoice therefore in the pledge which you have made; and that is the mighty achievement.
[1] There are reporting restrictions in the United Kingdom on the identification S. See R v S (sentencing remarks of Mr Justice Saunders, Crown Court, Manchester, 2 October 2015). Whether or not those restrictions formally extend to this side of the world, they should continue in spirit, particularly given the ubiquity of the internet, the tender age of S and the judge's reasons for imposing the restrictions. Thus my description of the child as S, as the judge described him.
[2] An offence contrary to s 101.6(1) of the Criminal Code (Cth).
[3] The prosecution opening became Exhibit 1. Parts of this document have been redacted and amended to maintain the anonymity of the child S.
[4] Some of that information also comes from the documents tendered on the plea, including the reports of psychologist Patrick Newton and the character references.
[5] The references (which became Exhibit 4) were from Sefer and Sajme Besim (Mr Besim's parents), Tony Islami (who is married to Sajme Besim's cousin), Alten Seidi (Mr Besim's aunt), Selvie Aycicek (Sajme Besim's cousin), Sylvia Symons (Mr Besim's neighbour) and Sanije Sinani.
[6] Report of Patrick Newton, dated 27 July 2016 (Exhibit 2), at p 3.
[7] Report of Patrick Newton, dated 27 July 2016 (Exhibit 2), at pp 2-3 & 5.
[8] Later, he went on to complete a school-based assessment at a level sufficient to secure a place in the TAFE course that would allow him ultimately to study architecture - although, as I mentioned earlier, he deferred that course.
[9] Report of Patrick Newton, dated 27 July 2016 (Exhibit 2), at pp 2-3 & 5; and second report of Patrick Newton, dated 29 July 2016 (Exhibit 3), at p 3.
[10] Also sometimes spelled kaffir and kufar (kafir is singular; kuffar is plural).
[11] See s 16A(2)(a) of the Crimes Act 1914 (Cth).
[12] See s 101.6(1) of the Criminal Code (Cth).
[13] See s 101.1(1) of the Criminal Code (Cth).
[14] See ss 101.2(1) and (2) of the Criminal Code (Cth).
[15] See ss 101.4(1) and (2) of the Criminal Code (Cth).
[16] See s 102.3(1) of the Criminal Code (Cth).
[17] DPP (Cth) v Fattal & Ors [2013] VSCA 276 at [230] (Buchanan AP, Nettle and Tate JJA).
[18] DPP (Cth) v Fattal & Ors [2013] VSCA 276 at [179] (Buchanan AP, Nettle and Tate JJA); R v Fattal & Ors [2011] VSC 681 at [85] (King J).
[20] See s 16A(2)(m) of the Crimes Act 1914 (Cth).
[21] See s 16A(2)(m) of the Crimes Act 1914 (Cth).
[22] See s 16A(2)(g) of the Crimes Act 1914 (Cth).
[23] See s 16A(2)(f)(ii) of the Crimes Act 1914 (Cth).
[24] See s 16A(2) of the Crimes Act 1914 (Cth) ("any other matters").
[25] See s 16A(2)(n) of the Crimes Act 1914 (Cth).
[26] I received (as Exhibit 5) certificates of completion of a "Certificate II in General Education for Adults" and "Participation in Student Research with Swinburne University of Technology".
[27] See ss 16A(1) and (2)(j), (ja) and (n) of the Crimes Act 1914 (Cth).
[28] See, e.g., the table of sentences provided by the Crown (which became Exhibit 7), which comprised Lodhi v The Queen (2007) 179 A Crim R 470 (Spigelman CJ, Barr and Price JJ); R v Lodhi [2006] NSWSC 691; (2006) 199 FLR 364 (Whealy J); DPP (Cth) v Fattal & Ors [2014] VSCA 276 (Buchanan AP, Nettle and Tate JJA); R v Fattal & Ors [2011] VSC 681 (King J); Elomar v The Queen [2014] NSWCCA 303; (2014) 316 ALR 206 (Bathurst CJ, Hoeben CJ at CL and Simpson J); and R v Elomar [2010] NSWSC 10; (2010) 264 ALR 759 (Whealy J).
[29] DPP (Cth) v Fattal & Ors [2014] VSCA 276 (Buchanan AP, Nettle and Tate JJA).
[30] R v Fattal & Ors [2011] VSC 681 (King J).
[31] The Court of Appeal dismissed appeals against sentence by both the offenders and the Director of Public Prosecutions (Cth). The Court (Buchanan AP, Nettle and Tate JJA) concluded, inter alia, that "the sentences imposed were severe but quite properly so" and they "fell within the range" (DPP (Cth) v Fattal & Ors [2014] VSCA 276 at [232]- [233]).
[32] See R v S (sentencing remarks of Mr Justice Saunders, Crown Court, Manchester, 2 October 2015).
[33] Plainly, nothing other than a prison sentence is an appropriate sentence in this case (see 17A of the Crimes Act 1914 (Cth)). Counsel for Mr Besim conceded as much.
[34] Section 19AB(1) of the Crimes Act 1914 (Cth) sets out the circumstances in which the Court must fix a non-parole period, including where, as here, the sentence exceeds three years' imprisonment. Section 19AB(3) sets out the circumstances in which the Court may decline to fix a non-parole period. None of those circumstances applies here.
[35] I expect that Mr Besim's counsel or solicitors will explain to him the purposes and consequences of fixing that non-parole period - see s 16F(1) of the Crimes Act 1914 (Cth).
[36] There is some debate about whether s 6AAA of the Sentencing Act 1991 (Vic) applies to sentencing for federal offences. See, e.g., R v Yim & Ors [2012] VSC 325 at [47]; R v Ramazanoglu [2013] VSC 724 at [66]; and R v Rhys Cini [2014] VSC 409 at [77]. Rather than enter into that debate, I think the preferable course is to assume the provision is applicable and make a declaration. Neither party in this case objected to that course.
[41] Dabiq is an online magazine used by the Islamic State for propaganda and recruitment.
[65]An image of BESIM in a bathroom taken on 18 March 2015 at 12:02pm was located on BESIM's Samsung Galaxy S6 mobile phone- see Report of Calvin Wills, Appendix 7, p 20, item number 22
[109] Telephone Intercept Material Tab 5 - Audio and Transcript (A9326 (01) Session 00197)
[110] Telephone Intercept Material Tab 5 - Audio and Transcript (A9326 (01) Session 00335)
[115] Data Surveillance Product Tab 7 - SD4784_01-000000-001522
[116] Data Surveillance Product Tab 7 - SD4784_02-000000-000221
The Queen
Besim [2016] VSC 537