The Queen v Mohamed [2016] VSC 581

2 The three charges of which you were found guilty by the jury were constituted by three discrete acts:

1. On 6 September 2013, being a New Zealand citizen, you applied for a New Zealand passport from Melbourne;
2. On 19 September 2013, from Melbourne, you booked plane tickets for Istanbul and Turkey from where you intended to enter the foreign state of Syria;
3. On 19 September 2013, while in Melbourne you obtained from Hamdi Alqudsi the contact details of 'Omar', who was to act as a guide ensuring safe passage for you and others from Turkey to Syria.

3 It is now my responsibility to sentence you for these offences.

4 For the purposes of the CFIR Act, these three acts of preparatory conduct are in each case the complete offence. The CFIR Act was enacted in 1978 and subsequently amended from time to time. The provisions which made your conduct an offence in each case are now incorporated into the Commonwealth Criminal Code with increased maximum penalties. In straightforward terms, the clear purpose of the provisions under which you were charged was to ensure that Australia discharged its international obligation to make criminal the activities of someone like you who proposed to engage in hostile activities in a foreign state and/or assist foreign fighters to do so.[1] That purpose in itself demonstrates the seriousness of your conduct.[2] Like contemporary terrorism offences, the CFIR Act made criminal not only the specific act of engaging in hostile activities in a foreign state but, separately, acts which are performed in preparation with that intention. Whether there is anything more to be taken from terrorism offences in the sentence I impose on you is a topic I will return to.

5 On the prosecution's case, the acts committed by you were criminal in nature because they each represented acts in preparation for entry into Syria with the intention of you engaging in hostile activities in that country. Objectively, this is very serious offending as the circumstances demonstrate.

6 At your trial, most of the evidence was not in contention. You had made arrangements, with the assistance and advice from Hamdi Alqudsi to travel from Australia to Istanbul in Turkey and then travel by air from Hatay, a town and province of Turkey, to Syria with the assistance of a man named Omar who was a contact given to you by Alqudsi. Though you were organising your own travel with the knowledge of Alqudsi, you were also organising and coordinating others who, like you, were travelling to Syria. The intention was to meet up with your fellow travellers in Istanbul prior to your proposed entry into Syria where you would be guided to particular locations.

7 During the making of these arrangements, you reported back to Alqudsi on how many other individuals were travelling, not necessarily with you, and the arrangements that had been made so that that information could be relayed by Alqudsi overseas.

8 On 20 September 2013, you left Melbourne and travelled to Sydney in readiness for a flight to Brisbane the following day, from where you were intending to board an international flight to begin the international aspect of your travel to Syria. For some time you had been the subject of surveillance by law enforcement authorities. Although unknown to you, your passport was cancelled during these events and the result was that you were prevented from traveling from Brisbane to Singapore by members of the Australian Federal Police.

9 The only issue raised during the course of your trial was whether the prosecution could prove, beyond reasonable doubt, that upon reaching Syria you intended to engage in hostile activities within the legal meaning of that phrase.

10 For the purpose of the sentencing process in this matter, the prosecution prepared a summary of the prosecution opening, which reflects a summary of the evidence led at your trial and which is exhibit A in the proceeding and forms part of the record. I do not propose to repeat all that evidence in detail, but it is appropriate to adequately summarise the circumstances of your offending.

11 Lawfully monitored telephone conversations in which you were involved at the time reveal a number of conversations with Alqudsi, from whom you were receiving advice and instruction and to whom you were reporting. There were also conversations between you and other men who would be your fellow travellers. During these conversations, you were referred to by yourself and others as Abu Bilal. Also, during these conversations, certain code words were used in relation to what was being discussed for the purpose of avoiding detection. During the period you used four telephones - two of those were registered in other names and addresses and one of those phones was that of a work colleague.

12 On 28 August 2013, you gave notice to your employer that you would resign on 18 September 2013. The reason you gave for that, concerning your mother and a terminal illness, was false.

13 The intercepted telephone conversations that you were involved in began on 5 September 2013. There were four phone calls on that day, with you using more than one phone to participate. You were told by Alqudsi to use a safe phone number. In the conversations that followed you were told that, in effect, there was to be a big operation, which was obviously in Syria and would involve martyrdom, and that there was an urgency about you and others from Australia getting over there [Syria]. You said you could be ready. There were extensive discussions about the arrangements. In a further conversation, there was more discussion about money and the idea that there was no turning back.

14 You said in your evidence before the jury that this conversation with Alqudsi just flowed and was moving along. You said you did not pause and think.[3] You claimed that the evidence referred only to the plan to go to Syria and was not a reference to fighting. You said that the only reason you used coded language was because you did not want to be stopped from going to Syria but it was not your intention to engage in hostile activities. Clearly the jury rejected that, and did so beyond reasonable doubt.

15 As to the quote 'front line' referred to in that conversation, you claimed you thought that meant prayer not battle.[4] In a later conversation, Alqudsi again referred to the battlefield and martyrdom and you said you knew what was being said to you but did not agree that the conversations were being directed at you. Also, in that first conversation there was discussion about 'red flags' and about money being taken and also whether you 'had the boys ready'.

16 On 6 September 2013, you rang the New Zealand Passport office and made arrangements to apply for a new New Zealand passport. You told the passport officer to whom you spoke that your passport had been lost. There were then conversations with other participants at that time about the arrangements for travel. These continued on the following day. Also on 7 September 2013 you purchased a sim card for a mobile phone in the false name of Chris Wright. Your application for the New Zealand passport constitutes charge one on the indictment.

17 On 9 September 2013, an application from you for a new passport was received by the New Zealand Passport office with the appropriate fee. As the evidence and Crown summary indicate, there were further phone calls with Alqudsi. You reported to him on the travel arrangements. There were discussions about altering the appearance of the travellers by shaving their beards and doing other things to avoid suspicion. You were warned not to refer to Hatay airport if questioned. The need for secrecy was emphasised. Later that day, the arrangements were altered with travel to be delayed because the passport of a man named Abu Dujanah had been confiscated by the authorities. Your original plan was to depart on 15 September 2013 but, in view of those developments and the risk of being observed, that departure was delayed.

18 The arrangements continued on 16 September 2013 and they began with a conversation with Alqudsi in which you told him that all was in readiness.

19 There were several other phone calls on 16 September 2013 between you and your fellow travellers during which respective travel arrangements were discussed.

20 On 19 September 2013, you booked a flight from Singapore to Istanbul via Doha. That conduct is the basis of charge two. On the following day, you booked flights from Sydney to Brisbane and from there to Singapore.

21 On the same day, you obtained the contact details for 'Omar' from Alqudsi. Omar was the person who would assist you to travel from Hatay airport into Syria. That is the basis of charge three. The details were provided by Alqudsi, who told you not to come and visit him in Sydney as to do so would endanger your trip. It was on this day, 19 September 2013, that your new passport was cancelled.

22 On 20 September 2013, you boarded a flight to Sydney from Melbourne Airport. On the following day, 21 September 2013, you travelled from Sydney to Brisbane and, at Brisbane Airport, members of the Australian Customs Service reacted to an alert that was attached to your record and you were stopped from checking in to the international flight. You were prevented from leaving the country because of the cancellation of your passport. Though prevented from travelling on that day, you were not arrested.

23 On 23 and 24 September 2013, you communicated with the New Zealand Passport office about the cancellation of your passport and gave detailed explanations, which you admitted were lies, about why you were travelling and where you were going. You had said that you were going to Denmark to meet your fiancé and that she would buy you a ticket to get from Turkey to Denmark.

24 From then on until your subsequent arrest you were in Melbourne and Sydney where you resumed working and seemed to have no further contact with Alqudsi.

25 On Tuesday 3 December 2013, you were arrested by police in Sydney. I will return to the circumstances of what followed, including your time in custody, shortly.

26 As I have said, the main issue in your trial was whether or not the Crown could prove beyond reasonable doubt that your intention in going into Syria was to engage in hostile activity. In your sworn evidence at your trial, you denied that was your intention and said:

My intention was still the same when I had decided to go to Syria. That was the first make the migration for the sake of God, and with the migration also from our teachings is that the person who makes this migration if it is successful that all his sins behind him are wiped away, so for me it was migration redemption, go to Syria, be with my cousin. The only thing that had changed was the fact that now I had some few other guys come with me and the intention remained the same of going there, and at that time I never called it humanitarian work, but helping the people in the way that my cousin was at that time.

27 Clearly the jury rejected that evidence, and you must be sentenced on the basis that your intention in travelling to Syria was to engage in hostile activity. A question arises as to what that means for the purpose of sentencing you in this case.

28 In directing the jury during the course of your trial, and pursuant to a ruling[5] I delivered before the trial started, I said:

The law says that engaging in a hostile activity in a foreign state consists of doing an act with the intention of achieving any one or more of the following objectives (whether or not such an objective is achieved):

(a) the overthrow by a force or violence of the government of the foreign state or of a part of a foreign state;

(aa) engaging in armed hostilities in the foreign states;

(b) causing by force or violence the public in the foreign state to be in fear of suffering, death or personal injury;

(c) causing the death of, or bodily injury to, a person who:

(i) is the head of the foreign state; or

(ii) holds, or performs any of the duties of, a public office of the foreign state or of a part of a foreign state; or

(d) unlawfully destroying or damaging any real or personal property belonging to the government of the foreign state or of a part of a foreign state.

Now in this case the particular form of hostile activity that the Crown rely on is engaging in armed hostilities in the foreign state being Syria.

So, if you are satisfied that the accused intended to go to Syria to fight; to go to the 'front line' and/or to 'be a martyr' in all likelihood you would be satisfied that he intended to engage in armed hostilities. An intent to engage in armed hostilities does not require proof that the intention was to be involved in regular armed forces of a nation state. Nor does it require proof of the intention to pursue any particular political objective.

29 On the basis of the jury's verdict, I propose to sentence you as a person who intended to go to Syria to fight in the conflict, which was going on in that country at that time, and to go to what you regarded as the 'front line' and, if necessary, to be a 'martyr', which may have involved your death in some form of armed conflict. The evidence does not support a conclusion which is any more specific than that. Whilst you were obviously willingly involved you did not declare any more specific intention. I do not think you would have lasted long. You do not seem to have any previous experience that would have equipped you for what you apparently wanted to do. That may be a clear indicator of how misguided your state of mind was at the time.

30 I accept your counsel's point that the circumstances in Syria in 2013 were different from those that prevail at present, though there is no evidence about the detail of that before me. In my opinion, it is enough for sentencing purposes to act on the basis that Syria is a foreign state; there was and is a conflict going on in that country which you were intending to participate in. For these purposes, I make no further judgements about the nature of that conflict, either then or now.

31 Having been stopped from travelling in Brisbane on 21 September 2013 by virtue of your New Zealand passport having been cancelled, you were not charged with the offences until 3 December 2013. You apparently returned to Melbourne and stayed with your mother before returning to Sydney to obtain employment with your former employer.

32 On being charged you were admitted to bail without opposition from the prosecution, and that effectively lasted until 7 January 2014 when you were detained under the Migration Act 1958 and held at Villawood Detention Centre until you were transferred to Maribyrnong Detention Centre on 11 July 2014, where you remained until your trial, which began in October 2015 and where you continued to remain until today. The result is that you have been in immigration detention for a period of 997 days and this will be taken into account as pre-trial detention.

33 In a report from Mr Stephen Gault, clinical psychologist, dated 29 January 2016, it appears that you have coped well with detention despite the restrictions on your freedom. Being separated from your family is obviously a hardship that flows from it. Mr Gault describes you as being the longest serving prisoner at Maribyrnong. I will return to the detail of Mr Gault's report shortly.

34 Pursuant to s 16A of the Crimes Act 1914, I am required to impose a sentence on you that is of appropriate severity and takes certain specific matters into account, several of those matters are relevant to you. I have already dealt with the nature and circumstances of your offending. I turn next to your personal circumstances.

35 You were born in 1990 in Somalia and are therefore now 26 years of age. You are the youngest of six children. Not long after your birth, your father died in the Somalian civil war. In 1998, your family migrated to New Zealand. Your childhood in New Zealand from the age of eight onwards was positive and you had a good primary and secondary education. You passed the New Zealand equivalent of the VCE in 2008 and then commenced and completed a degree in business and marketing at Auckland University of Technology. In addition, your work history is good with part time jobs at school and university. In more recent times you have also been involved in charity work.

36 Though a citizen of New Zealand, you came to Australia in 2012. Your siblings and mother had already moved to this country. Your work record in Australia was good. You are a first offender, having no previous convictions either here or in New Zealand.

37 Part of the evidentiary material presented during your plea included a large number of references from friends and family. It was argued that they demonstrate the significant support you have from all those people. The material came from your close family, including your mother and siblings. They support you and have suffered as a result of your incarceration. I have no doubt their support for you is genuine and will, of course, continue after your release subject to the complication of your likely deportation to New Zealand. Many of those who wrote supportive documents refer to the change they have seen in you but, unfortunately from you, I do not have an acknowledgement of your true intention in going to Syria or insight into that intention. I note that many of your friends and family are here this morning.

38 In addition, as I have already mentioned, part of the material put forward on your behalf was a report from Stephen Gault. His assessment of you was largely based on what you told him and parts of that narrative are at odds with the jury's verdict. An example of that is your assertion to Mr Gault that you could not see yourself 'committing violence in the name of Islam'. You also told him that in June 2013 you were motivated by the Islamic concept of hijrah, which means to travel to another country for the sake of God, thus making amends or reparation for your sins. As I understand Mr Gault's report, he concludes that whatever risk of future violence you pose is based on ideology rather than any propensity you have for violent behaviour which, as far as he can tell, is not a factor. You have no history of violent behaviour of any kind.

39 In all the circumstances I cannot be satisfied even on the balance of probabilities that you have fully renounced the religiously motivated desire of going to Syria to engage in hostile activities in that country.

40 It is not in dispute that general and specific deterrence are significant relevant factors in fixing the sentence to be imposed on you and are specifically referred to in s 16A(2)(j) & (ja) of the Crimes Act. It is necessary that the sentence I impose demonstrate the seriousness of your conduct and the significance of the consequences for those who would want to emulate it. You also need to be deterred from any repetition of such offending. It was submitted on your behalf that your behaviour, after being stopped from travelling at Brisbane airport, demonstrates that you appear to be already deterred or at least unlikely to engage in any repetition of this or similar conduct. There is merit in that submission. However, on 23 and 24 September 2013, after it must have been clear to you that the authorities were interested in your activities, you rang the New Zealand Passport Office and, as you admitted in your evidence at your trial, told lies about why you were travelling out of Australia, in particular claiming you were going to Denmark and that the time in Turkey was merely a stopover in the course of that journey.

41 The next matter to which I turn is whether you are now different and in some way rehabilitated from the way you were when these offences were committed, as your counsel had argued. I have already made some observations about that.

42 From what Mr Gault has reported, you told him that your proposed trip to Syria was connected to a desire to become more religious. You acknowledged that you became 'extreme' about religion. You said you were motivated by hijrah, a concept I mentioned earlier as travelling to another country for the sake of God. You now describe yourself as being naïve and foolish at that time. However, to act on those opinions and observations for the purpose of the sentencing you would, in my opinion, be inconsistent with the jury's verdict and fail to take account of the reality that you have not accepted responsibility for your intentions at the time.

43 However, as Mr Gault has noted in his report, you have a tertiary degree and a good employment history. You are young and without any substance abuse problem or any form of mental illness or disorder. You do have, as your counsel argued, very substantial support from a large number of people who contribute to our community, as the written references show. Unlike your earlier religiously inspired position, you now maintain good relationships with women and, so it was argued, are a changed person from the way you were in mid-2013.

44 The prosecutor has pointed out several of the reference documents describe you as being 'remorseful', going through 'deep regret', demonstrating 'repentance', 'sorry and remorseful' and having 'learnt the lessons'. I acknowledge there is a difficulty with that. You conducted your committal and trial on the basis that your purpose in going to Syria was innocent. The jury found beyond reasonable doubt that it was not. Section 16A of the Crimes Act requires me to consider the degree to which you have shown contrition for these offences. Though there is regret, I am unable to detect contrition.

45 However, ultimately, I am persuaded that in some respects you are not the same person you were in mid-2013. There have been positive changes. This is a case where the three actions you performed are not of themselves illegal or criminal. They are made so here by your intention upon reaching Syria. However, my conclusion that you are a changed person from the way you were in mid-2013 and that your reasonably good prospects for rehabilitation must be tempered by the fact that I cannot reach a conclusion that you are remorseful for what you had originally intended because you have never acknowledged, despite strong evidence to the contrary which the jury accepted, that you were going to Syria to engage in hostile activities.

46 On your behalf, it was submitted it was likely that upon the completion of your sentence there is a 'very high risk' that you will be deported to new Zealand, and that would be a hardship which I should consider. While no submissions to the contrary were made orally by the prosecutor, written Crown submissions on sentence argue that, given you had only been in Australia 10 months prior to the commission of the offences, and were both educated and largely raised in New Zealand, the burden of imprisonment would not necessary be more onerous for you on account of any prospective deportation.

47 Legal principle indicates that the prospect of deportation is a factor which may bear on the impact which a sentence of imprisonment will have on an offender, both during the currency of the incarceration and upon release.[6] It is therefore a factor which is appropriate to take into account.

48 It was submitted on your behalf that the reality of deportation has been hanging over your head since January of 2014. Whilst your family is now in Australia, it was not submitted that you would be isolated in New Zealand as there is a community network there to support you. However, you would miss out on life with your direct family. I accept that would be a hardship and I take it into account in determining the sentence to be imposed.

49 On 1 September 2016, in the Supreme Court of New South Wales, Hamdi Alqudsi was sentenced by Adamson J in relation to seven charges of performing services for persons with the intention of their entering Syria for the purpose of engaging in armed hostilities there contrary to s 7(1)(e) of the CFIR Act.[7] The relationship Alqudsi had with you was at the factual basis of count six on that indictment. The total effective sentence imposed by her Honour in relation to all involved in the enterprise was eight years' imprisonment with a minimum term of six years. In respect of count six, which concerned you, her Honour sentenced Alqudsi to four years' imprisonment.

50 The principle of parity in sentencing requires me to consider that sentence to determine whether there is a proper relationship between the sentence imposed on Alqudsi and the sentence I impose on you. For a significant part of 2013, Alqudsi had been involved in what Adamson J described as performing services for each of the seven men, you included, with the intention that each of them would travel to Syria and engage in hostile activities. He was a central point of contact and portrayed himself as being in a position of command or control.

51 Given that the sentence of Alqudsi was published after submissions had been completed in your case, I invited the parties to file further written submissions on the issue of parity of that sentence with yours if they wished to do so. On your behalf it was submitted that, given the activities of Alqudsi and the difference in your ages, the sentence I impose on you should be less than the sentence that was imposed on him. Indeed, it was put that the sentence to be imposed on you should be less than the sentence imposed on him in respect of his dealings with you. I do not accept that submission. As the prosecution have submitted in their supplementary written submissions, your conduct was not procured by Alqudsi; he did not recruit you. You were a volunteer and the jury reached a verdict which required them to conclude you were going to Syria to engage in hostile activities in the conflict going on in that country

52 However, given the extent of his activities and the number of people he was engaged with, it is appropriate that the total effective sentence that was imposed on him be significantly more than the total effective sentence to be imposed on you.

Current Sentencing Practices and Terrorism Offences

53 As the prosecutor pointed out, only a very small number of sentences have been imposed under this legislation and those that have been were not in the present context or similar to it.[8] She also submitted that given the statutory scheme for the offences you have committed, the nature of the offences and your motivation for committing them 'guidance as to sentencing can be gained from a consideration of the principles which apply to terrorism offences'.[9] That arises, she argued, because, as in terrorism offences, preparatory conduct is made criminal. As I followed the submission, such a comparison would enable me to assess the seriousness of your offence by reference to other forms of preparatory conduct which are also criminal.

54 In my opinion, the objective seriousness of your conduct can be assessed without reference to offences which are different and which carry a different maximum penalty. As I noted in the submissions, the intention to engage in hostile activities in a foreign state is not the same as an intention to engage in an act of terrorism in Australia but is nonetheless a serious offence. Conduct such as yours, done with the intention to engage in hostile activities in Syria, has the potential to affect Australia's international relations and is obviously contrary to the country's national security interests.

55 In conclusion, therefore, I do not impose sentence on you on the basis of any suggested guidance from offences which deal with the preparatory acts for acts of terrorism. As I have said, I do regard your offending as objectively serious. Over an extended period between the end of August 2013 and the time you were prevented from travelling on 21 September 2013, you began to make arrangements to travel to Syria for the purpose of engaging in hostile activities in that country. These arrangements were being carefully planned with a view to ensuring that your plans were not discovered. There was time for reflection, but you were not deterred and indeed your enthusiasm for your travel plans and the desire to engage in hostile activities seemed to escalate.

56 On the other hand, on the evidence there remains a lack of precision as to what exactly you were proposing to do when you reached Syria beyond the jury's finding that you intended to engage in hostile activities. In whatever form they took, given your background, I doubt that you would have been a leader in those activities despite your educational credentials.

57 It was submitted on your behalf that I should sentence you so that you are released from immigration detention with your time in that arrangement to date fully constituting your sentence for these matters. Particular reliance was placed on your lack of prior offending and the strong support of family and friends. Reliance was also placed on your relative youth, which I acknowledge. I do, of course, take those matters into account as important considerations, but I am unable to agree that such a sentence would be sufficient to recognise the seriousness of your offences.

58 Taking all the matters I have identified into account, I intend to sentence you as follows:

59 I intend that six months of the sentence on charges 2 and 3 be served cumulatively with the sentence on charge 1. That results in a total effective sentence of five years and six months. I direct that you serve a period of three years and six months before being eligible to apply for release on parole. I also intend that all of your time in immigration detention from 7 January 2014 be counted as pre-sentence detention and be reckoned as time already served. It was not submitted that I should do otherwise.

60 Section 19 Crimes Act 1914 (Cth) requires the Court, where a person is convicted of two or more federal offences and is sentenced to imprisonment for more than one of those offences, to direct when each sentence commences.

61 Therefore, in respect of the first charge on the indictment, I sentence you to four years and six months' imprisonment commencing on 7 January 2014 and expiring on 7 July 2018.

62 In respect of the second charge on the indictment, I sentence you to four years and six months' imprisonment commencing on 7 July 2014 and expiring on 7 January 2019.

63 In respect of the third charge on the indictment, I sentence you to four years and six months' imprisonment commencing on 7 January 2015 and expiring on 7 July 2019

64 I fix a non- parole period of three years and six months and that non parole period will expire on 7 July 2017.

[1] R v Alqudsi [2015] NSWSC 1222.

[2] See generally per Adamson J in R v Alqudsi; Alqudsi v Commonwealth of Australia [2015] NSWSC 122 where the constitutional validity of s 7(1)(e) of the CFIR Act was unsuccessfully challenged.

[5] R v Mohamed (Ruling No 1) [2015] VSC 290R.

[6] Guden v The Queen [2010] VSCA 196.

[7] [2016] NSWSC 1227.

[8] See R v Little (2013) sentence imposed by the District Court of Queensland, 26 September 2013_; R v Hughes_ (1996) unreported judgement of Queensland Court of Appeal delivered on 16 May 1996.

[9] Crown submissions on sentence para. 16.