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Supreme Court

New South Wales

Case Name: R v Atai (No. 2)

Medium Neutral Citation: [2018] NSWSC 1797

Hearing Date(s): 19 September 2018, 20 September 2018, 21


September 2018, 15 November 2018

Date of Orders: 23 November 2018

Decision Date: 23 November 2018

Jurisdiction: Common Law

Before: Johnson J

Decision: The Offender, Milad Atai, is sentenced as follows:

1. For the offence under s.102.6(1) Criminal Code (Cth)


in Count 3, sentenced to imprisonment for nine years
commencing on 22 March 2016.

2. For the offence under s.102.6(1) Criminal Code (Cth)


in Count 2, sentenced to imprisonment for 10 years and
six months commencing on 22 March 2019.

3. For the offence under ss.11.2(1) and 101.1(1)


Criminal Code (Cth), and taking into account the
offence under s.102.3(1) Criminal Code (Cth) for the
purpose of s.16BA Crimes Act 1914 (Cth), sentenced to
imprisonment for 30 years commencing on 22 March
2024 and expiring on 21 March 2054.

4. In accordance with s.19AG Crimes Act 1914 (Cth), a


single non-parole period is fixed of 28 years and six
months commencing on 22 March 2016 and expiring on
21 September 2044.

Catchwords: CRIMINAL LAW - sentence - guilty pleas to three


offences - aiding and abetting commission of terrorist

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act - fatal shooting of Curtis Cheng outside New South


Wales Police Headquarters - two offences of
intentionally collecting funds for Islamic State knowing it
to be a terrorist organisation - further offence of being a
member of a terrorist organisation (Islamic State) taken
into account on sentence - Offender radicalised
supporter of violent jihad - objective gravity of offences -
tentative expression of remorse at sentencing hearing
later withdrawn by Offender - assessment of prospects
of rehabilitation and risk of reoffending - factors relevant
to sentence - importance of denunciation, specific and
general deterrence - substantial determinate sentences
imposed

Legislation Cited: Crimes (Administration of Sentences) Regulation 2014


Crimes Act 1914 (Cth)
Criminal Code (Cth)
Firearms Act 1996 (NSW)

Cases Cited: Alvares v R (2011) 209 A Crim R 297; [2011] NSWCCA


33
Director of Public Prosecutions (Cth) v Besim [2017]
VSCA 158
Director of Public Prosecutions (Cth) v Besim and Anor
(No. 3) (2017) 52 VR 303; [2017] VSCA 180
Director of Public Prosecutions (Cth) v Fattal [2013]
VSCA 276
Director of Public Prosecutions (Cth) v MHK (A
Pseudonym) (No 1) (2017) 52 VR 272; [2017] VSCA
157
Elomar and Ors v R (2014) 316 ALR 206; [2014]
NSWCCA 303
Elzahed and Ors v Commonwealth of Australia and
State of New South Wales [2016] NSWDC 353
Elzahed and Ors v Commonwealth of Australia and
State of New South Wales [2017] NSWDC 160
Elzahed v State of New South Wales [2018] NSWCA
103
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA
29
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
Georgopoulos v R [2010] NSWCCA 246
Giac v R [2008] NSWCCA 280
Green v The Queen (2011) 244 CLR 462; [2011] HCA

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49
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Liu v R [2018] NSWCCA 70
Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA
360
Mun v R [2015] NSWCCA 234
Power v The Queen (1974) 131 CLR 623; [1974] HCA
26
R v AB (2011) 59 MVR 356; [2011] NSWCCA 229
R v Achurch (2011) 216 A Crim R 152; [2011]
NSWCCA 186
R v Alameddine (No. 3) [2018] NSWSC 681
R v Al-Kutobi; R v Kiad [2016] NSWSC 1760
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA
102
R v Dennison [2011] NSWCCA 114
R v Elomar and Ors (2010) 264 ALR 759; [2010]
NSWSC 10
R v Fattal [2011] VSC 681
R v Gray [1977] VR 225
R v Kahar (2016) 1 WLR 3156; [2016] EWCA 568
R v Khaja [2018] NSWSC 238
R v Khalid and Ors [2017] NSWSC 1365
R v Lamella [2014] NSWCCA 122
R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 69
R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA
381
R v Stambolis (2006) 160 A Crim 510; [2006] NSWCCA
56
R v Whyte (2004) 7 VR 397; [2004] VSCA 5
R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA
222
Tepania v R [2018] NSWCCA 247
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA
54
Weininger v The Queen (2003) 212 CLR 629; [2003]
HCA 14
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
ZA v R [2017] NSWCCA 132

Texts Cited: Freiberg, “Fox and Freiberg’s Sentencing: State and


Federal Law in Victoria”, Lawbook Co, 2014

Shapland, “Personal Mitigation and Assumptions About

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Offending and Desistance” published in Roberts (ed),


“Mitigation and Aggravation at Sentencing”, Cambridge
University Press, 2011

Category: Sentence

Parties: Regina (Crown)


Milad Atai (Offender)

Representation: Counsel:
Mr PR McGuire SC; Mr Y Shariff (Crown)
Mr G Smith SC (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
McGirr Lawyers (Offender)

File Number(s): 2016/128965

Publication Restriction: ---

REMARKS ON SENTENCE
1 JOHNSON J: Once again, the Court is called upon to sentence an offender for
grave crimes associated with the killing of Curtis Cheng, a peaceful and
innocent civilian, in a terrorist act at Parramatta on 2 October 2015. The
Offender, Milad Atai, was then an active member and supporter of the criminal
terrorist organisation, Islamic State. His offences extend to the organisation of
funding and support for Islamic State in Syria.

The Offences
2 The Offender appears for sentence with respect to the following offences, to
which he has pleaded guilty:

(a) Count 1 - Between about 6 August 2015 and 2 October 2015, at


Sydney and elsewhere, aiding, abetting, counselling or procuring
the commission of an offence by another person, namely
engagement in a terrorist act by Farhad Jabar Khalil Mohammad
(“Farhad”) contrary to ss.11.2 and 101.1 Criminal Code (Cth), an
offence punishable by life imprisonment.
(b) Count 2 - Between about 1 September 2015 and 1 October
2015, at Sydney and elsewhere, intentionally collecting funds for
or on behalf of an organisation, Islamic State, knowing that the
organisation was a terrorist organisation, contrary to s.102.6(1)

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Criminal Code (Cth), an offence punishable by imprisonment for


25 years.
(c) Count 3 - Between 29 December 2015 and 22 March 2016 at
Sydney and elsewhere, intentionally collecting funds for or on
behalf of an organisation, Islamic State, knowing that the
organisation was a terrorist organisation, contrary to s.102.6(1)
Criminal Code (Cth), an offence punishable by imprisonment for
25 years.
3 The Offender applies under s.16BA Crimes Act 1914 (Cth) that the Court take
into account on sentence for Count 1, a further offence of, between about 6
August 2015 and 22 March 2016 at Sydney and elsewhere, intentionally being
a member of a terrorist organisation, Islamic State, knowing that the
organisation was a terrorist organisation contrary to s.102.3(1) Criminal Code
(Cth), an offence which (if prosecuted separately) is punishable by a maximum
penalty of 10 years’ imprisonment.

The Sentencing Hearing


4 The Offender pleaded guilty to these charges on 18 May 2018. The sentencing
hearing proceeded on 19-21 September 2018, at the conclusion of which, the
Court remanded the Offender for sentence today. In circumstances to be
described later in these remarks, the Court granted the Crown leave to reopen
its case and the Court sat again on 15 November 2018, when further
documentary evidence was tendered for the Crown and the Offender with
counsel addressing on issues arising from that evidence.

The Documentary and Oral Evidence

5 At the sentencing hearing between 19-21 September 2018, the Crown


tendered a folder (Exhibit A) which contained a number of documents including
a Statement of Facts and several affidavits which related to the Offender’s
custodial status and programs available within the correctional system. An
affidavit of Senior Assistant Superintendent Geoffrey Poulsen sworn 5
September 2018 concerned the Offender’s custodial conditions at the High
Risk Management Correctional Centre (“HRMCC”) within the Goulburn
Correctional Complex. The affidavit of Stephanie Scott-Smith affirmed 21
August 2018 concerned the structure and operation of the Proactive Integrated
Support Model (“PRISM”) program of Corrective Services NSW in relation to

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which Ms Scott-Smith is the senior psychologist. The affidavit of Senior


Correctional Officer David Smithson sworn 7 September 2018 related to an
event in custody concerning the Offender on 28 April 2016. Further reference
will be made to these affidavits later in these sentencing remarks.

6 Senior Assistant Superintendent Poulsen was cross-examined on his affidavit


(T15-28).

7 The Crown tendered, as well, USB sticks containing surveillance footage and
CCTV footage of certain events between 24 September 2015 and 2 October
2015 which concerned the role and activities of the Offender in the offences
(Exhibits B, C and D).

8 As will be seen, the Offender gave evidence at the sentencing hearing and
raised, amongst other things, the execution of a search warrant by police at his
family home on 18 September 2014 (as part of Operation Appleby) as an
incident which played a part in his radicalisation. In relation to this event, the
Crown tendered a number of statements and a USB stick containing video
footage of the execution of the search warrant (Exhibits E, F, G, H, J and K).

9 Other items were tendered by the Crown concerning the Offender’s electronic
communications with others in 2014 and 2015 and associated documents
which bore upon the depth of his extremist jihadist beliefs at those times
(Exhibits L, N and O).

10 A victim impact statement (Exhibit M) was made to the Court by Mrs Selina
Cheng, the widow of Curtis Cheng, on behalf of the Cheng family. I will return
to this statement later in these sentencing remarks.

11 Senior Counsel for the Offender tendered a number of documents in the


defence case on sentence (Exhibits 1, 2 and 3) which included the report of Dr
Richard Furst, forensic psychiatrist, dated 4 September 2018 concerning the
Offender, a letter dated 17 September 2018 from the Offender’s wife, Cody
Clarke (Amira Atai) and a letter from Mohammad Nader Azamy, President of
the Afghan Community Support Association with respect to the Offender.

12 The Offender gave extensive evidence over two days (T39-197) in which a
wide range of matters were advanced and tested in cross-examination by the

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Crown. Aspects of the Offender’s evidence will be referred to at different points


in these sentencing remarks.

Written and Oral Submissions

13 Both the Crown and Senior Counsel for the Offender had furnished written
submissions in advance of the sentencing hearing and these submissions were
supplemented orally on 21 September 2018 (T199-237) by reference to the
substantial oral evidence which had been given at the sentencing hearing.

14 The Court granted leave to the parties to furnish further written submissions on
the discrete question of the timing of and discount for the Offender’s guilty
pleas, and these submissions were furnished to the Court on 28 September
2018 (MFIs 3 and 4).

The Resumed Hearing on 15 November 2018

15 As a result of two letters dated 14 October 2018 sent by the Offender to the
Australian Federal Police (“AFP”) and the Senior Counsel appearing for the
Crown, the Court granted leave (without objection by the Offender) for the
reopening of evidence and the Court sat again on 15 November 2018 for that
purpose.

16 At the resumed hearing, the letters of 14 October 2018 directed to the AFP
(Exhibit P) and the Senior Counsel for the Crown (Exhibit Q) were tendered by
the Crown together with the affidavit of Yoshitha Alles sworn 31 October 2018
(Exhibit R). Tendered for the Offender were certain Department of Corrective
Services NSW case notes concerning the Offender for the period 3 July 2018
to 30 October 2018 (Exhibit 4) together with a list of telephone calls made by
the Offender between 17 September 2018 and 14 October 2018 (Exhibit 5).
Counsel addressed by reference to this evidence concerning issues of
contrition and remorse, rehabilitation and deradicalisation, general and specific
deterrence, protection of the community and the veracity and truthfulness of
the Offender with the Crown utilising a schedule (MFI5) for this purpose.

17 I will consider this evidence and these submissions at a later point in these
sentencing remarks when addressing aspects of the Offender’s subjective
case.

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Disputed Factual Issues

18 The Offender’s pleas of guilty, of course, constitute admissions of the elements


of those offences: GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at
211 [30]. Likewise, the Offender has admitted the offence to be taken into
account on sentence under s.16BA Crimes Act 1914 (Cth). Any facts beyond
those necessarily involved as elements of these offences must be proved by
evidence admitted formally or informally: GAS v The Queen at 211 [30].

19 In a number of areas, there was a dispute between the parties as to what


findings the Court should make for the purpose of sentence, by reference to
the evidentiary material. Findings will be made in areas of controversy with
respect to the role and involvement of the Offender in the offences and also
aspects of his subjective circumstances including remorse, contrition and any
change in his attitude from the radicalised and extreme pro-Islamic State views
which clearly existed at the time of the offences.

20 In resolving disputed issues of fact, the Court may only make a finding of fact
which operates adversely to the interests of the Offender if satisfied beyond
reasonable doubt of that fact. On the other hand, if there are circumstances
which the Court proposes to take into account in favour of the Offender, it is
enough if those matters are proved by the Offender on the balance of
probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 281
[27]-[28]; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at 69-71
[64]-[66].

21 It is appropriate to observe, however, that some disputed issues of fact may


not be capable of resolution in a way that goes either to increase or decrease
the sentence that is to be imposed. There may be issues which the material
available to the Court will not allow to be resolved in that way: Weininger v The
Queen (2003) 212 CLR 629; [2003] HCA 14 at 636 [19]. The Court will seek to
make findings by reference to material which is relevant and known to the
Court: s.16A(2) Crimes Act 1914 (Cth); Weininger v The Queen at 635-637
[17]-[21]; Filippou v The Queen at 69-73 [61]-[72].

22 It must be recognised that not every matter urged on a sentencing Judge has
to be, or can be, fitted into categories of aggravating or mitigating

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circumstances. The Court may be unpersuaded as to matters urged in


mitigation or in aggravation. Of course, the absence of persuasion about a fact
in mitigation is not the equivalent of persuasion of the opposite fact in
aggravation: Weininger v The Queen at 638 [24].

23 As will be seen, these principles have some bearing with respect to several
areas where the parties were in dispute as to the appropriate findings of fact to
be made.

Scope of Sentencing Remarks

24 These sentencing remarks relate only to the Offender. Raban Alou (“Alou”) has
already been sentenced by the Court for his offence (R v Alou (No. 4) (2018)
330 FLR 402; [2018] NSWSC 221) and Talal Alameddine (“Alameddine”) has
been sentenced for his offences (R v Alameddine (No. 3) [2018] NSWSC 681).
Another person has been charged with a related offence which is still before
the Court. I will not refer to that person by name in these sentencing remarks.
The findings and conclusions reached in these remarks arise solely from the
sentencing hearing concerning the Offender and the evidence adduced at that
hearing.

Facts of the Offences


25 What follows is drawn from the Statement of Facts tendered by the Crown
(Exhibit A, Tab 3), which is substantially not in dispute, together with findings
made by reference to the Offender’s evidence and other documentary
evidence tendered at the sentencing hearing.

The Offender’s Background

26 The Offender was born in Iran in January 1996. His parents were both of
Afghan ethnicity being of the Sunni Muslim faith. The Offender has seven
siblings, including four older brothers, two older sisters and a younger sister.
The Offender’s father died in about 1998 from suspected heart disease. The
Offender’s mother, and her children (including the Offender), migrated to
Australia in 2006.

27 The Offender went to school at Merrylands Public School and Parramatta High
School, gaining his Higher School Certificate in 2014.

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28 The Offender married Cody Clarke (Amira Atai) in an Islamic ceremony in July
2015 and there is a two-year old son of the relationship.

29 At the time of the commission of the terrorist attack on 2 October 2015, the
Offender was 19 years old.

30 The Offender has no prior criminal history.

31 Both the Offender’s evidence and the report of Dr Furst indicate that he was
affected by the arrest and charging in 2010 of his elder brother, Masood Atai,
for an offence of murder, for which his brother was convicted (Atai v R [2014]
NSWCCA 210).

Events on 1 and 2 October 2015

32 At about 4.30 pm on 2 October 2015, Farhad (then 15 years old) walked up


behind Mr Cheng, who was leaving the New South Wales Police Headquarters
in Parramatta after completing work as an accountant. Farhad shot Mr Cheng
in the back of the head with a .38 special calibre Smith & Wesson model British
service revolver (“revolver”). Mr Cheng died instantly. Farhad then exchanged
gunfire with New South Wales Police Special Constables and was shot dead.

33 Found inside a pocket of Farhad’s clothing was a note written by him that made
clear that the act of killing Mr Cheng was a religiously inspired act of violence
carried out in support of Islamic State. The note stated:

“Oh you disbelievers!!!


Know your security means nothing to us. Know your weapons are nothing
compared to what we have, our Lord, the all powerful and the all
encompassing.
Know that you all are being watched 24/7, while you are asleep, awake,
planning But soon by the will of God the Exalted, your nights will turn into
nightmares, your days into hell and you planning is nothing to us!!
By the will of Allah have come today to put terror in your hearts. And soon the
mujahideen will do the same, by the will of Allah
Dawlatul Islam
Baqiya
Bi'dnillah.”

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34 The loaded revolver used to commit the terrorist attack was given to Farhad by
Alou (then 19 years old) at the Parramatta Mosque less than one hour before
the attack.

35 The weapon was sourced by Alou from Alameddine earlier in the afternoon of 2
October 2015. Alou later told the Offender that the weapon was supplied by
Alameddine for free (T60-61).

36 On 1 October 2015, Shadi Mohammad (“Shadi”) (Farhad’s older sister) had


departed Australia for Syria. As will be seen, the Offender had provided funding
and assistance in September 2015 for Shadi (who was also a radicalised
supporter of Islamic State) to leave Australia utilising the Offender’s contact in
the Middle East, Ahmad Merhi (“Merhi”), who was involved in Islamic State
activities at that time as the Offender well knew.

37 Amongst other things, the Offender’s conduct in this respect gave rise to the
offence contained in Count 2. The Offender had provided telephone numbers
to Shadi prior to 22 September 2015 so that she was in a position to
communicate with Merhi for the purpose of her planned journey which was
intended to assist and support Islamic State activities in Syria. The Offender
supplied funds as well which assisted Shadi’s journey to Syria. Shadi was killed
in 2016 in an American air strike on Islamic State facilities in Syria.

38 What led the Offender to commit the offences for which he is to be sentenced?

The Offender’s Extremist Beliefs in 2014 and 2015

39 By the time of the offences in 2015 and 2016, the Offender held certain beliefs
relating to the interpretation of the Islamic religion and support for the terrorist
organisation, Islamic State. In particular, he believed that Islam throughout the
world was under attack and that there was a religious obligation to respond to
that attack by means of violent jihad.

40 The Offender said that he was a supporter of Islamic State before September
2014 (T127). At some point after Abu Bakr al-Baghdadi “became the Caliph”,
the Offender said that he swore an oath of allegiance (“bay’ah”) to Islamic
State (T127). In this way, he became a member of a terrorist organisation so
as to constitute the offence to be taken into account on sentence for Count 1.

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41 The Offender was also part of an online “WhatsApp” closed chat group where
he and others shared views and discussed ideas supportive of Salafi Islam and
Islamic State. The chat group was called “The Bricks” (“Bricks Forum”) and the
profile picture of this group was an Islamic State flag.

Execution of Search Warrant at the Offender’s Family Home on 18 September


2014 as Part of Operation Appleby

42 As at 18 September 2014, the Offender was living with members of his family
at a home unit in Northmead. After 4.30 am that day, police executed search
warrants on a variety of premises, including the Offender’s premises, as part of
Operation Appleby, an investigation into terrorist activities.

43 Evidence was adduced at the sentencing hearing concerning the execution of


the search warrant on 18 September 2014. This included video footage of
events in the unit at that time (Exhibit F) together with statements of police
officers concerning the execution of the search warrant with those officers not
being required for cross-examination (Exhibits E, G, H and J).

44 It appears that forced entry to the unit was obtained and that the Offender was
physically detained for a short period with his hands being bound. Given the
subject matter surrounding the execution of the search warrant, a cautious
approach by investigating police was understandable. What the video footage
reveals is that the Offender was present with his hands free in the unit as
police explained what was happening to his family members soon after they
had entered the premises. No complaint was made by the Offender at that time
as to what had occurred nor did the Offender appear to be disturbed or upset.

45 At their request, the Offender and his mother were allowed to move to a
separate room for the purpose of morning prayers with police facilitating that
process. This is not consistent with wrongful or irregular handling of the
execution of the search warrant by police.

46 To the extent that the Offender sought to utilise the execution of the search
warrant on 18 September 2014 as a factor which contributed to his
radicalisation, it is clear that he was already radicalised significantly at that
time. In evidence, the Offender said that he “hated” the police before the

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execution of the search warrant on 18 September 2014, but he “hated them


even more” after that day (T68-69). He said that he was a supporter of Islamic
State before 18 September 2014 (T127). The evidence discloses that the
Offender was by then good friends with Alou and had been associating with a
number of other persons, including Omarjan Azari, as at 16 September 2014
(Exhibit E). The Offender said in evidence that all of the “Appleby boys” were of
the same mind as himself concerning the permissibility of killing non-Muslims
(T185).

47 The Offender’s mobile telephone was seized on 18 September 2014. Upon


examination (Exhibit K), it was found to contain several Islamic State images
and other extremist material including some sourced to the now deceased
Anwar al-Awlaki, a radical Islamic lecturer whose work has been popular with
al-Qaeda and supporters of Islamic State (Exhibit L, page 67).

48 The Offender is not assisted by the events of 18 September 2014. It is clear


that there was a proper basis for a search warrant to be executed at his
premises given his associations and his own admission in evidence that he
was already a radicalised supporter of Islamic State at that time.

49 The investigation by police of a number of persons, which included the


execution of search warrants as part of Operation Appleby on 18 September
2014, was an understandable response to suspected terrorism in the
community. To the extent that the Offender sought to rely at the sentencing
hearing upon things he had heard about the execution of a search warrant on
the same day at the premises occupied by Hamdi Alqudsi (“Alqudsi”) and his
family as part of Operation Appleby, it was pointed out at the sentencing
hearing that civil proceedings brought by Alqudsi and his wife arising from
those events were unsuccessful: Elzahed and Ors v Commonwealth of
Australia and State of New South Wales [2016] NSWDC 353; Elzahed and Ors
v Commonwealth of Australia and State of New South Wales [2017] NSWDC
160 and Elzahed v State of New South Wales [2018] NSWCA 103.

50 The Offender’s evidence indicates that he and others who were the subject of
raids as part of Operation Appleby on 18 September 2014 spoke to each other
thereafter in ways which reinforced their views. Far from being a source of

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legitimate grievance for the Offender, it might be thought that he would have
thought twice about his continuing support for Islamic State given the adverse
consequences that could flow for his family as a result of events such as the
execution of the search warrant on 18 September 2014.

51 The Offender continues to hold a grievance with respect to the events of 18


September 2014, asserting in evidence that his family home had been “raided
for no reason” (T190). The fact that he continues to hold this view now is, in
itself, not consistent with development of any real insight.

The Offender’s Association with Alou and Farhad

52 The Offender had known Alou since 2011-2012 and they were good friends in
2015 (T48).

53 The Offender knew Farhad’s family. He knew Farhad’s elder brother, Farshad,
and had played soccer with him (T51). The Offender had been to Farhad’s
home at North Parramatta and knew his parents. Farhad lived with his parents
and also Farshad and Shadi (T54-55).

54 The Offender became aware, in 2014, that Farhad (then aged 14 years) had an
interest in the Islamic religion and he would see him at the Parramatta Mosque
(T54). The Offender described Farhad as “a hard core supporter of Islamic
State” (T75). He said that he had seen Farhad on Facebook “preaching” or
“debating” with others and supporting Islamic State, although Farhad was not a
member of the Bricks Forum (T75-76). Because of Farhad’s beliefs, the
Offender was sure that he would “use a gun on someone” (T75).

Events from June 2015

55 On 26 June 2015, Alou posted to WhatsApp the following message on the


Bricks Forum:

“Beheading in France, 25 dead in suicide bomb by IS in shia Kuwait mosque


and 37 dead at Tunisia beach.
Its going off
Lol”
56 On 27 June 2015, the Offender posted to WhatsApp on the Bricks Forum
pictures of Australian Defence Force personnel disembarking from a bus. The

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Offender said in evidence that he took the photographs when on the way back
from visiting his brother in prison (T88-89). He said that he made derogatory
comments about the service personnel as a joke for his companions in the
Bricks Forum (T89). In response to the pictures, Alou posted:

“Omg. May Allah curse them all and destroy them to pieces”.
57 At around 3.22 pm on 28 June 2015, Mohammed Atai (the Offender’s brother)
posted to the Bricks Forum a picture of what appeared to be Muslim fighters. At
3.31 pm, another member of the Bricks Forum posted:

“Those whom Allah (tabaraka wa ta 'ala) has chosen, selected, and bestowed
His grace upon so that they establish His religion and impose His rule,
disassociate from the kujfar [unbelievers or infidels], break off from them, and
announce animosity and hatred towards them. They don't ally with them and
don't compromise for them. They don't live amongst them and sit in their
shades. They don't appease them even if they are their family, tribe, or people.
This is the condition of those to establish Allah's Shariah. They don't change
no matter what disturbs them in their long path of trials and tribulations.”
58 At around 4.32 pm on 30 June 2015, another member of the Bricks Forum
posted to WhatsApp a copy of an AFP Eid dinner invitation. Members of the
Bricks Forum posted comments such as “look at these dogs” and “May allah
curse every afp ... out there”. One person commented “That night We will see
the apostates” and “Taking the enemies of Allah as allies”.

59 On 1 July 2015, a member of the Bricks Forum posted to WhatsApp a picture


of a man dressed in Islamic dress with the caption “Sometimes you gotta leave
your loved ones for the one you love”.

60 On 7 August 2015, the Offender sought from another member of the Bricks
Forum the contact details of Abu Masoo Jibroo (a reference to Ahmad Musa
Jibril). The person replied with an SMS address book contact for Sheikh
Ahmad Musa Jibril and a USA telephone number. Sheikh Ahmad Musa Jibril
was a radical preacher who was supportive of Islamic State (Exhibit L, page
52).

Alou and the Offender Seek an Islamic State Flag

61 On 14 August 2015, Alou called a person and asked him for the number of X4,
who owned a printing business.

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62 Later that day, that person sent Alou the telephone number for X4.

63 On 21 August 2015, Alou called X4 and asked whether he could see him.

64 On 26 August 2015, Alou and the Offender went to X4's home and had a
meeting with him. In the presence of the Offender, Alou asked X4 to make a
Dawlah (Islamic State) flag. X4 said that he did not wish to make the flag but
did not want to be rude so he asked Alou to bring material back. X4 said he did
not believe that Alou would return with the material.

65 On 1 September 2015, Alou purchased black material from a gift store in


Lakemba. Later that day, Alou called X4 and said to him “I swear praise be to
God. Um brother I'm gonna come past and bring my jumper, bro, so that you
can fix it up for me. Is that all right? Tonight?”. X4 responded “okay. No
worries. What time are you gunna come?”. Alou told X4 that he would call
when he was outside.

66 Before arriving at X4's house, Alou conducted counter-surveillance. Alou sent


X4 a text message telling him that he was outside. Alou gave X4 the black
material. X4 described the material as “black and square” and said he just
“chucked it aside in the garage” as he “never intended on using it”.

Meetings in Parramatta Park in August and September 2015

67 On 28 August 2015, Alou, the Offender, Hozan Alou (Alou’s brother) and
Farshad attended Lake Parramatta Park and ate a meal together. After eating,
the group walked to the lake.

68 Once at the side of the lake, they placed a cable tie around Hozan Alou's
hands and the Offender led Hozan Alou up the hill, effectively handcuffed. Alou
and Farshad filmed this activity on their mobile telephones. When they returned
to their parked cars, they cut the cable tie off Hozan Alou's wrists and departed
the area. The Offender said in evidence that this was meant to be “a joke”
where he and the others mimicked the activities of Islamic State in the Middle
East (T63-64). It is difficult to characterise this event as humorous given the
usually grim conduct of Islamic State supporters who tied and marched their
captives towards punishment or death.

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69 At around 2.20 pm on 4 September 2015, Alou, the Offender, Hozan Alou,


Farshad and another person attended Parramatta Park. The group sat around
a picnic table before the Offender and Farshad walked to Farshad’s vehicle
parked nearby.

70 At around 1.30 pm on 11 September 2015, the Offender, Alou, Hozan Alou,


Farshad, Farhad and two others met at Lake Parramatta Park. This was the
only known physical contact between Alou, the Offender and Farhad other than
at the Parramatta Mosque.

Meetings at the Parramatta Mosque in Mid-September 2015

71 On the morning of 15 September 2015, Farhad arrived at the Parramatta


Mosque carrying a black sports bag and a Nike backpack. Once at the
Mosque, Farhad put the bag into the top left alcove of the prayer hall. Soon
after, two police officers entered the Mosque and spoke briefly to Farhad.
Thereafter, Farhad left the Mosque carrying his Nike backpack but leaving
behind the black sports bag.

72 On the afternoon of 18 September 2015, Alou entered the Parramatta Mosque


without carrying any bags. After praying, Alou talked to Farshad and another
person. At about 3.45 pm, Alou left the Mosque carrying the black sports bag
that had been left behind by Farhad on 15 September 2015.

73 On the afternoon of 20 September 2015, Alou removed the black sports bag
from the boot of his vehicle and placed it on the ground. About one minute
later, Alou placed the black sports bag back into the boot.

The Offender Puts Shadi in Contact with Merhi in the Middle East

74 In the early afternoon of 21 September 2015, Alou, the Offender and Farhad
met at the Parramatta Mosque in an off-camera area between the female and
male sections of the prayer hall. After about 10 minutes, they dispersed at the
same time - the Offender via the female entry to the right and to the female
bathrooms, Alou via the female entry to the left off-camera view, and Farhad
back into the male prayer hall.

75 Merhi was an Islamic State contact of the Offender who, in September 2015,
was located in the Middle East (T138). By 21 September 2015, the Offender

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was aware of Shadi’s plan to travel to Syria to join Islamic State in that country.
I am satisfied that the Offender provided Merhi’s contact details to Farhad at
the Parramatta Mosque on 21 September 2015 so that the details could be
passed on to Shadi. On 22 September 2015, Shadi made telephone contact
with Merhi to advance her plans to travel to Syria (T56-57, 177-179, Exhibit O).

76 Not only was the Offender providing support to Alou in his efforts to obtain a
firearm for Farhad to commit a terrorist act (relevant to Count 1), but he was
also playing a significant organisational role in the planned journey by Shadi to
join Islamic State fighters in Syria (relevant to Count 2). Apart from the
provision of financial support, the Offender also advised Shadi about the route
to take to ensure she made it to Syria and about her manner of dress and
appearance to reduce the prospect of her being stopped (T101-102). The
Offender spoke to Shadi after she had arrived in Syria to ensure she made it
there safely (T102).

77 The Offender said in evidence that he knew that Shadi wished to link up with
Islamic State and he learned later that she had found a husband and that “they
got droned” (killed in an air strike in Syria) (T98).

Contact with X2 and X3 in September 2015 to Obtain a Firearm

78 The Offender said that he was aware from early September 2015 that Alou was
seeking a firearm for use by Farhad in a terrorist act (T74, 113-114). The
Offender expected that Farhad would use the firearm to kill someone and he
agreed that it was always part of the plan that Farhad himself would die during
the commission of a terrorist act (T114).

79 On 21 September 2015, Alou called an associate and asked for the telephone
number of X3.

80 Soon after, Alou called X3 and asked whether he could meet him in Greenacre
that evening and they agreed to do so.

81 In the early evening on 21 September 2015, Alou called X3 to ask for his
address. During the conversation, X3 asked Alou “who is he coming with?”.
Alou responded that he was coming with “one of the other brothers ... Milad”
(the Offender). X3 was aware that the Offender was a relative of X2.

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82 After this conversation, X3 sent his address in a text message to Alou. X3 then
sent a message to Alou asking how long he was going to be.

83 Thereafter, X3 sent a text message that stated “please be quick needa leave
the area”. Alou then rang X3 and informed him that he was “on the street” and
he would walk to X3.

84 Soon after, Alou and the Offender met with X3 in Greenacre. During the
conversation, Alou asked X3 “Can you get anything” and, as he said this, Alou
turned his hands into the shape of a pistol. X3 said that during this
conversation he told Alou to contact X2 for assistance. X3 said that Alou did
not use the word “gun” and did not disclose the reason why he wanted a
firearm and “blocked off” the question when asked for the reason.

85 I am satisfied that the Offender was present on this occasion to give support to
Alou during a conversation which was closely linked to the plan that Farhad
would kill someone with a firearm in a terrorist act. The Offender and Alou were
both supporters of violent jihad and the Offender was well aware of the
purpose of the meeting and he heard and saw all that occurred at that meeting.

86 On the afternoon of 23 September 2015, the Offender and Farhad were seen
working together removing rubbish and construction waste from inside the
Parramatta Mosque.

87 That evening, a member of the Bricks Forum called the Offender and the two
discussed where they would pray the following day.

88 In the early afternoon on 24 September 2015, Alou called X3 and asked him for
X2's number.

89 Soon after that call, both Alou and the Offender contacted X2 and made
arrangements to meet later that night. Alou made most of the arrangements
using his own mobile telephone. However, just prior to meeting X2, Alou sent a
text message to X2 informing him that the battery on his telephone was about
to "die" and to contact Alou on the Offender’s mobile telephone number. The
Offender made it clear to X2 that they had to meet him that evening as it was
"urgent".

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90 At 8.30 pm on 24 September 2015, Alou and the Offender met X2 at a chicken


shop in Granville for approximately 25 minutes. During the meeting, Alou asked
X2 for a "favour" stating he wanted a "gun". X2 asked Alou who he “had
dramas with” and Alou replied "we don't have dramas with anyone. We can't
tell no-one". X2 stated that he would “ask around ..." to see if he could source a
firearm for Alou. According to the Offender, X2 mentioned a firearm would cost
“5 to 10 grand” (T47). After finalising code words to be used, a follow-up
meeting was arranged.

91 On 25 September 2015 at 10.26 pm, Alou had a telephone conversation with


his wife, Shana Perger (“Perger”), in which he told her that he would go past
the Offender’s home to talk to him about something. When asked why he
wanted to see the Offender, Alou said "Do you want me to tell you everything
on the phone, you want me to tell you who I want to kill tomorrow!”. Alou told
Perger that he needed the Offender’s advice.

92 On 26 September 2015, Alou messaged X4 using WhatsApp and asked if his


“jumper” was ready, a reference to the Islamic State flag. X4 fended him off,
saying “Wallah sorry brother I fully forgot about it, we're doing eid festival at the
moment I'll make it as soon as I can and let you know”.

93 In the early afternoon on 27 September 2015, Alou telephoned an associate


asking to borrow $200.00. I accept that Alou was gathering money at this time
to put towards the purchase of a firearm, a transaction which he thought (at
that stage) would require payment of money.

94 On the evening of 27 September 2015, the Offender posted on the Bricks


Forum a link to a video involving Abu Bakr al-Baghdadi, the self-proclaimed
Caliph of Islamic State. In response, Alou warned the Offender about posting
the link (Exhibit L, page 62):

“Bro straight out this isn't smart at all speaking bout this stuff we should be
more wise instead of fools coz clearly these filthy munafiqs [hypocrite] dogs
see this stuff. We should be smarter and just coz we have heat doesn't mean
dats we give ourselves even more to these pigs and allahu alam (God knows
best).”

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95 On 28 September 2015, Alou telephoned a person and asked for a loan of


$100.00 which I accept was for the purpose of getting money for the purchase
of a firearm.

Events on 29 September 2015

96 At 10.38 am on 29 September 2015, Perger called Alou and they discussed the
Offender’s movements.

97 At 10.41 am, the Offender used Alou's car to drive to Alameddine’s house in
Lockwood Street, Merrylands. The Offender then talked to a number of
unidentified males out the front of Alameddine’s house.

98 At 10.58 am, Perger called Alou and told him:

“… Milad [the Offender] said to call your brother and tell him to come - send
me your brother's number so that he can call your brother to tell him to come
outside when he gets there 'cause he has to give him money or something.”
99 The Offender’s wife could be heard in the background saying “don't say it over
the phone”.

100 At about 11.00 am, Alou called his brother Hozan and told him that the
Offender would come past to give him the money that he (Alou) owed him.

101 At 12.07 pm on 29 September 2015, the Offender entered the Parramatta


Mosque and went into the alcove of the male prayer hall. Farhad, who was in a
nearby area, followed the Offender. At 12.08 pm, the Offender was seen
glancing into the female bathroom area before again going out of camera view.
Between 12.08 pm and 12.09 pm, the Offender and Farhad remained in the
same area out of camera view. It was on this occasion that the Offender gave
Farhad a sum of money ($1,000.00) to assist in funding Shadi’s travel to Syria
(T43-44) (conduct relevant to Count 2).

102 At about 12.45 pm, Shadi and Farhad entered Westfield Shopping Centre in
Parramatta. Farhad was carrying a Nike brand sports bag. At about 12.50 pm,
Shadi entered the office of STA Travel. Farhad sat on a nearby bench, waiting
for Shadi whilst she was in the STA Travel Centre. Shadi was making further
arrangements for her journey to the Middle East with the assistance of the
money provided shortly before by the Offender.

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103 At about 2.27 pm, Farhad and Shadi left the Westfield Shopping Centre in
Parramatta.

104 During the evening of 29 September 2015, Alou discussed a particular location
in Guildford with a Bricks Forum member. At 10.35 pm that evening, the
Offender was observed with an unknown person walking on Bursill Street,
Guildford towards Marion Street, Guildford.

Events on 30 September 2015

105 On the morning of 30 September 2015, Alou sent X4 a message over


WhatsApp enquiring about progress with the Islamic State flag. Alou asked
“How did it go? Finished yet akhi?”.

106 At 1.57 pm on 30 September 2015, Alou arrived at the Parramatta Mosque.


Between 1.57 pm and 2.27 pm, Alou and Farhad were present, but were out of
camera view in the Mosque.

107 At 2.27 pm, Alou and Farhad returned into camera view together and Alou left
the Mosque. Within two minutes of Alou's departure, Farhad collected his
backpack and left the Mosque.

108 At 2.46 pm, Alou sent a coded SMS to X2 providing an alternative telephone
number for X2 to contact him.

109 At 8.00 pm, Alou met with XI and X2 at a chicken shop in Granville. X2 told
Alou that he could not source a firearm for him.

110 At 8.43 pm, Alou received an SMS from X2 with the text “?”.

111 At 9.22 pm, Alou received an SMS from X2 texting a telephone number of an
associate of Alameddine.

112 At 9.28 pm, Alou called that number and spoke to a person. Alou said he was
“desperate” and that he wanted the number as “he really needs it”.

Events on 1 October 2015

113 At 12.02 pm on Thursday 1 October 2015, Farhad arrived at the Parramatta


Mosque carrying a black Nike backpack.

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114 At 12.23 pm, the Offender arrived at the Parramatta Mosque. Whilst there, the
Offender assisted a work colleague to move a hot water heater.

115 At 12.42 pm, Alou sent an SMS to the Offender saying “Asalamu alaykum
[peace be upon you] can u ask ur boss wen im getting my $$$”.

116 At 1.00 pm, Alou arrived at the Parramatta Mosque carrying a black sports bag,
followed by Perger. Alou walked into the female entry of the Mosque and left
the black sports bag in a location not covered by CCTV.

117 At about this time, the Offender and his work colleague stood in the female
entrance and the Offender appeared to speak to someone off-camera in the
area in which Alou and Farhad were last seen. I am satisfied that the Offender
spoke to Alou and Farhad about the state of planning for the commission of a
terrorist act to be carried out by Farhad. This was the topic uppermost in the
minds of the three of them.

118 It is true, as was argued for the Offender, that there was no firearm obtained at
that time. However, as is clear from the events of the next 24 hours, once a
firearm was obtained, there would be no delay in supplying the weapon to
Farhad to be used to murder someone in a terrorist act. I do not accept the
Offender’s evidence that he believed the terrorist act had been called off
(T133). He knew that Alou was continuing in his efforts to obtain a firearm with
the expectation that the weapon would be given to Farhad for the prompt
commission of a terrorist act.

119 The Offender stated in evidence that he had suggested to Farhad at one point
that he (Farhad) should accompany Shadi overseas and that Farhad initially
was agreeable to this course, but later said that he would not travel overseas
(T43, 55, 62). It may have been that the Offender discussed this with Farhad at
some point. However, it is clear that there were no arrangements made in that
respect nor any money collected or provided for the purpose of travel by
Farhad. The only planned traveller was Shadi. The Offender agreed that he
had not tried to talk Farhad out of committing a terrorist act in Australia (T111).

120 It was clear by late September 2015 that Farhad remained ready, willing and
able to commit a homicidal terrorist act once a firearm was obtained.

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121 Further, the Offender made entirely clear that, if he knew the terrorist attack
was to occur on 2 October 2015, he would have “probably cancelled work and
helped out Raban on the way” (T133). The Offender himself remained ready,
willing and able to assist Alou and Farhad in the commission of the terrorist act
if he had notice of when it was to occur.

122 At about 1.15 pm, Alou, the Offender and Farhad stood together with a large
group for prayer. At 1.36 pm, Alou hugged Farhad goodbye and then left the
Parramatta Mosque without the black sports bag he had with him when he
entered the Mosque.

123 At 2.31 pm, Farhad collected the black sports bag that was left behind by Alou
and left the Mosque carrying the bag.

124 At 2.38 pm, Alou contacted the Offender. During the conversation, the Offender
said to Alou he was “at the house” and Alou replied that he was “coming”. The
Offender then told Alou, “Raban can you bring me something, bro? Actually, I'll
give you the money, cuz”.

125 At 2.51 pm, Farhad met with Shadi near the old Parramatta library and gave
her the black sports bag before saying farewell to her. By that time, I am
satisfied that Shadi well knew that Farhad was to carry out a terrorist act and
was likely himself to die or be captured. As observed when sentencing Alou, it
is difficult for decent and right-minded members of the community to
understand the twisted and evil minds at work where a 21-year old woman is
prepared to have her 15-year old brother commit a homicidal atrocity in the
likely knowledge that he would be captured or die in the process. Acts and
thoughts of this type are the antithesis of civilised religious beliefs in a modern
democratic society such as Australia: R v Alou (No. 4) at 411 [74].

126 Shadi then got into a taxi out the front of Civic Place and was driven to Sydney
International Airport. When Shadi arrived at the International Airport, she was
carrying the black sports bag and a bag with black polka dots.

127 At 2.57 pm, Farhad returned to the Parramatta Mosque without the black
sports bag, which he had given to Shadi before she departed for the airport to
travel to the Middle East.

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128 At 7.44 pm, Alou called another person and confirmed a meeting time of 7.45
pm. Alou then drove to the Offender’s home in Guildford and picked him up
and both men then travelled to premises in Auburn.

129 Between 7.44 pm and 7.47 pm, a member of the Bricks Forum made three
unsuccessful attempts to make telephone contact with the Offender. At 7.46
pm, that person also made an unsuccessful attempt to telephone Alou.

130 At 9.31 pm, Alou and the Offender attended the vicinity of Alameddine’s home
in Lockwood Street, Merrylands. I accept that, by this time, the Offender was
aware that Alou intended to seek a firearm from Alameddine.

131 Between 9.00 pm and 10.30 pm, Alou made five attempts to call Alameddine
using his wife's (Perger's) mobile telephone.

132 At 10.38 pm, Alou called Alameddine and told him that he had attended his
house earlier that evening and had seen his brother, Rafat Alameddine.
Alameddine confirmed that he was not home and would call Alou the following
day. Alou insisted that Alameddine see him that night.

Events on 2 October 2015 - the Day of the Terrorist Act

133 On 2 October 2015 at 6.51 am, Alou sent two SMS messages to X3 asking if
he was there. X3 did not respond.

134 At 8.04 am, Alou tried to call X3, but he could not get through. At 10.15 am, X3
messaged Alou and said “Yea akhi [Yea Brother]”.

135 Between 9.38 am and 10.17 am, two unanswered calls were made between
Alou and Alameddine.

136 At 9.58 am, Farhad entered the Parramatta Mosque carrying the Nike
backpack on his back.

137 Between 10.17 am and 10.29 am, Alou and Alameddine exchanged messages
arranging to meet.

Alou Travels to the Vicinity of Alameddine’s House

138 At 10.31 am, Alou parked his car in Lockwood Street, Merrylands and left the
vehicle.

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139 Ten minutes later, Alou returned to his vehicle and then drove home.

Alou Speaks to Farhad at the Parramatta Mosque and Meets with a Member of
the Bricks Forum

140 At 11.31 am, Alou entered the Parramatta Mosque and sat with Farhad. Alou,
his brother Hozan and Farhad spent the next two hours in each other's
company and appeared during this time to be engaged in conversation.

141 At 12.21 pm, a member of the Bricks Forum arrived at the Parramatta Mosque
in his vehicle which he parked next to Alou's vehicle at the front of the building,
before entering the Mosque.

Further Contact and Meetings Between Alou and Alameddine - Supply of the
Revolver

142 Between 12.58 pm and 1.20 pm, Alameddine attempted to make six calls to
one of Alou's services from a public telephone in Rees Street.

143 At 1.10 pm, Alou took a call from Alameddine from the Rees Street public
telephone and they discussed a meeting.

144 It was the case, that the Offender was working at another location on 2 October
2015 and thus was not present at the Parramatta Mosque. That said, the
Offender said that he would have been present to assist if asked to do so (see
[121] above).

145 Between about 1.35 pm and 2.55 pm on 2 October 2015, Alou and Alameddine
met at different locations at Parramatta and Merrylands with another person
being present on some of these occasions. The purpose of the meetings was
to facilitate the supply of a firearm to Alou.

146 By 2.55 pm, Alameddine had supplied to Alou the revolver which was to be
used by Farhad about an hour later in the commission of a terrorist act.

Alou Meets with Farhad at the Parramatta Mosque and Supplies the Revolver
to Him

147 At 3.05 pm, Alou returned to the Parramatta Mosque where he met with
Farhad.

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148 At 3.34 pm, Hozan Alou and Farshad arrived at the Parramatta Mosque and
met with Alou and Farhad.

149 At 3.40 pm, Alou, Farhad, Farshad, Hozan Alou and two other males prayed
together. After praying, the men sat together and talked.

150 At 3.46 pm, Farshad and Hozan Alou departed the Parramatta Mosque,
leaving Farhad and Alou together.

151 At 3.48 pm, Alou walked out of the Mosque to his vehicle, which he had parked
alongside the Mosque’s entrance. Alou got into the front driver's seat and
remained there for a short time. Alou then got out of his vehicle and appeared
to be holding or adjusting something in his left hand. He then walked towards
the entrance of the Mosque, holding his left hand under his robe. Alou was
holding the revolver which was secreted in his clothing as he entered the
Mosque to hand the weapon to Farhad.

152 At 3.58 pm, Alou and Farhad entered the female-only prayer hall together. This
was their final meeting. Farhad was carrying a black Nike brand backpack. As
they entered the female prayer room, Alou removed his mobile telephone from
his right pocket and placed it on a shelf immediately outside the female prayer
hall.

153 The two men remained alone together in the female prayer room for about
seven minutes. During this period, Alou handed the revolver to Farhad and
discussed with him the final preparations for the terrorist act.

154 At 4.04 pm, Alou left the female prayer room by himself and, after collecting his
mobile telephone, he left the Mosque and returned to his vehicle whilst using
his mobile telephone.

Farhad Leaves the Parramatta Mosque and Kills Mr Cheng

155 At 4.06 pm, Farhad entered the main prayer hall and commenced praying.
Thereafter, he went to another section of the Parramatta Mosque and changed
into a black robe known as a “dishdasha”.

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156 At 4.10 pm, Alou got into his vehicle (parked near the entrance to the Mosque),
turned the vehicle around and reverse parked into the same car space. The car
was then facing Marsden Street.

157 At 4.12 pm, Alou drove away from Parramatta Mosque travelling along
Marsden Street and into George Street and then into Charles Street.

158 At around this time, Farhad left the Mosque. As he departed, he looked up at
the CCTV camera which was located near the entry/exit and held up his right
hand with his index finger raised. This one-finger salute had become
associated with Islamic State and is a reference to the “tawheed” (there is no
God but Allah).

159 At 4.13 pm, Farshad called Alou and asked if he knew where his brother
Farhad was. Alou replied that he had left Farhad in the Mosque half an hour
before and stated (falsely) that he did not know where he was. Alou said he
was on his way to meet his wife.

160 At 4.14 pm, Alou drove past the New South Wales Police Headquarters’
building in Charles Street. Alou had never before been observed travelling this
route after leaving the Parramatta Mosque. It is clear that Alou was aware of
the significance of the New South Wales Police Headquarters to the planned
terrorist act to be carried out by Farhad.

161 At 4.24 pm, Farhad walked in a southerly direction along Charles Street,
Parramatta. Farhad then paced back and forth along the footpath parallel to the
main entry doors of the New South Wales Police Headquarters. Farhad walked
up behind several people who had left the building before turning away and
walking back to the main doors of the building.

162 At 4.30 pm, Mr Cheng, a civilian accountant, walked out of the New South
Wales Police Headquarters. Farhad fell in behind him and walked until he was
very close and then shot Mr Cheng to the back of the head. Mr Cheng was
killed instantly and fell to the ground.

163 The murder weapon was not licensed in Australia and there were no records
that it had been imported into Australia legally.

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164 After murdering Mr Cheng, Farhad strode back and forth past the entrance to
the New South Wales Police Headquarters. Farhad stopped and stood on the
footpath facing the entrance and fired directly at the building and in the air a
number of times, whilst yelling “Allahu-akhbar”. This alerted two Special
Constables on duty inside the building. They left the building and, in an
exchange of gunfire, Farhad was shot dead.

165 When Farhad's clothes were searched, located inside a pocket of his robes
was the handwritten note referred to at [33] above. A torn copy of the note was
located later in Farhad’s bedroom, with this being written by Shadi. I accept
that Shadi drafted the note which Farhad then wrote himself and carried with
him at the time of the terrorist attack.

Events After the Death of Mr Cheng - The Offender Praises Farhad for his
Terrorist Act

166 Between 5.17 pm and 5.28 pm, Alou tried three times unsuccessfully to call the
Offender.

167 At 8.56 pm, Alou and Perger heard a commercial radio station broadcast a
statement by New South Wales Police Commissioner Scipione in relation to
the murder of Mr Cheng. Perger stated “good” and as the statement continued,
Perger went on to say “Jobs done then”. Alou could be heard speaking and
humming in the background.

168 It is apparent that the murder of Mr Cheng and the death of Farhad did not
cause the Offender to question, let alone abandon, his support for Islamic
State.

169 In the late afternoon on 5 October 2015, the Offender shared an image on the
Bricks Forum of a newspaper report entitled “Tribute page labels Parramatta
teen shooter a hero of the Islamic people” which was accompanied by a
photograph of Farhad against the background of an Islamic State flag (Exhibit
3).

170 Late on 5 October 2015, the Offender posted a message on the Bricks Forum
(Exhibit L, pages 81-82):

“Allahu akbar the young brother had a smile on his face and his finger up.”

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171 The Offender said in evidence that the “young brother” was Farhad and that
this message conveyed his then belief that Farhad was a “martyr” who had
been “rewarded by Allah by going to Paradise” (T166). The reference to
Farhad having “his finger up” picked up a common theme of Islamic State
propaganda.

172 On 5 October 2015 at 2.46 pm, the Offender called Farshad and they
discussed Mr Cheng's murder. Both men praised Farhad for his actions.

173 On 7 October 2015, search warrants were executed at premises including


those of Alou, Alameddine and others.

174 On 19 October 2015, the Offender appeared on the ABC 7.30 Report program.
In answer to the question “Would you get yourself killed for Allah?”, the
Offender said “I'm not gonna answer that, because if I say yes I'll get in trouble,
and if I say no I'll be a liar. I accept some of their opinions and I disagree with
other opinions”. The journalist asked “Which do you disagree with?”. The
Offender said “Like attacking Australia, and other stuff”. The journalist said “But
you support Islamic State?”. The Offender said “Half Half”.

175 On 22 November 2015, the Offender posted on WhatsApp a smiling


photograph of himself with a raised finger, a sign of support for Islamic State
(Exhibit 3).

176 On 29 December 2015, Merhi messaged the Offender from Syria and said:

“Listen Anything that happens you let us know b4 ... And you make sure if
there doing it for us to make a video and send to the brothers. We have our
own media teams And akhi [brother] Make sure it's civilians. Not anything else.
The same way they get our people we gotta do the same.”
Events in February-March 2016 - The Offender’s Association with Abdul

177 By February 2016, the Offender was working with a person he knew as Abdul
(who happened to be an undercover operative). Conversations between the
Offender and Abdul were recorded. Not only did these conversations provide
evidence in support of Count 3, but the Offender made admissions of his guilt
with respect to Counts 1 and 2 as well. As will be seen, the statements of the
Offender disclosed (in many unguarded moments) his continuing support for
violent jihad and Islamic State and his boasting praise of Farhad for the murder

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of Mr Cheng. The depth of the Offender’s commitment to the cause of Islamic


State was manifest.

178 On 2 February 2016, Merhi and the Offender sent text messages to each other.
During the exchange, Merhi requested the Offender to collect money on his
behalf. One of Merhi's messages said:

“Akhi do you reckon you can go collect money from all the brothers fi sabilah.
And I got a person use can drop it off to. There's a lot of rewards aiding the
Mujahideen”.
The Offender responded “Ofcs [of course] Akhi”.

179 On 24 February 2016, the Offender told Abdul that he had been listening to a
recording on his telephone of a person who was known as “the spokesperson
for the Islamic State”. The Offender said that this person had issued a “Fatwa”
that allowed those who follow Islamic State to murder an Australian at any
place or any time.

180 Later, the Offender told Abdul that he should download certain apps, as the
AFP and ASIO did not have coverage of those instant messaging services. The
Offender said that he did not trust “IMessage” or “WhatsApp”. The Offender
said that he had spoken to the “brothers” fighting overseas in Syria who were
using these apps. He explained that fighters in Syria were being “hammered”
by airstrikes and that the fighters were deployed for three-day tours and
returned home for four days. It is clear that the Offender was keeping abreast
with the criminal activities of Islamic State in Syria.

181 On 25 February 2016, the Offender and Abdul had a conversation about
sending money overseas for Islamic State. During the conversation, the
following was said:

“THE OFFENDER: You should be careful talking on the phone.


ABDUL: I will throw this phone away after a week. If you know if any brothers
that need help let me know.
THE OFFENDER: There is that brother overseas who I know needs a lot. I
contacted these guys when I helped Farhad 's sister get overseas.
ABDUL: Okay contact them and ask if they need help with money.
THE OFFENDER: The best place to talk about this stuff is at work, leave our
phones in the van and talk about it.”

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182 On 27 February 2016, the Offender wrote a letter to Alou, then being held in
custody at the HRMCC at Goulburn. The Offender’s letter contained extremist
sentiments, including the statement “May Allah destroy these pigs and let them
rot in hell” and “May the curse of Allah be upon these kuffar [non-believers]”
(Exhibit 3).

183 On 29 February 2016, the Offender told Abdul that the brothers overseas
needed supplies because of air strikes and that, if Abdul's contacts were willing
to fund brothers going overseas to fight, it would cost $5,000.00 per person.
Weapons and housing would be supplied overseas. Abdul asked the Offender
if he had someone who could handle the money. The Offender said that he had
a “trusted brother”, the same brother who assisted the Offender to get Farhad's
sister overseas. The Offender was referring to Merhi. The Offender said that
this brother would hold the money until the brother(s) were ready to travel and
“That's what I did for Farhad's sister”.

184 The Offender went on to say that “I told Farhad why don't you go overseas with
your sister, and I got him to like say yes but he prayed a isitkhara and said I am
just going to do it here, I'm ready for it”. The Offender then said that he
collected the money to fund Shadi's travel from the “brothers”. He explained to
Abdul that the process of travelling to Syria involved buying a return ticket to
Turkey, booking a hotel in Turkey, contacting a “brother” who then picked up
the person and arranged transport across the border to Syria. Abdul stated that
he did not believe that Alou had the means or connections to obtain a gun to
which the Offender replied “It's not that hard”.

185 On 2 March 2016, Abdul asked the Offender why he thought the Australian
Government had labelled Islamic State a terrorist organisation, and not the
Free Syrian Army (“FSA”). The Offender said that it was because the Dawlah
(Islamic State) were implementing Sharia and that FSA was trying to install a
democratic political system.

186 During the conversation, the Offender gave Abdul advice about how to facilitate
a female travelling to Syria:

“THE OFFENDER: In war you have to deceive them in this world you do, you
have to, Farshad 's sister, Farhad's sister you know she was a, jilbabi [wears a
Jilbabi].

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ABDUL: Yeah.
THE OFFENDER: She took everything off.
ABDUL: Did she, is that what she was told to do?
THE OFFENDER: That's what she has to do.
ABDUL: But she wants to get married?
THE OFFENDER: Over there a hundred percent. You’ll get married in like two
minutes.
ABDUL: Cause Farhad's sister got married over there.
THE OFFENDER: Farhad's sister got married yeah.
ABDUL: Was that arranged before?
THE OFFENDER: No, … she got there and she got married.
ABDUL: But how did she know she was going to the Dawlah [the Islamic
State] cause she doesn't want to do, she doesn't want to go with Nursa.
THE OFFENDER: She doesn't what?
ABDUL: She doesn't want to go with Nursa.
THE OFFENDER: She goes to Dawlah [Islamic State].”
187 The Offender said that the girl would be going to Islamic State “a hundred
percent Dawlah [Islamic State]” as “the contact we have is from the Dawlah
[Islamic State] a guy will pick you up”. Later in the day, the Offender painted
the letters “ISIS” on a wall in the premises where the two men were working,
before painting over it.

3 March 2016 - Discussion Concerning the Murder of Mr Cheng

188 On 3 March 2016, the Offender and Abdul had a conversation about the
murder of Mr Cheng. Abdul said that Mr Cheng was not a “copper” but an
“accountant”. The Offender replied that Mr Cheng was a “policeman” and that
he “... was in the Force”.

189 Abdul said that Mr Cheng just worked at the police building. The Offender
replied, “He got what he deserved. He's in that environment ... aiding them”.
The Offender went on to say “... sharpening the pencil for the kafir ... Aiding -
imagine aiding them”. Abdul asked the Offender if he knew what was going to
happen. The Offender replied “What do you think? I am Raban's best friend”.

190 Abdul asked if the Offender had tried to send Farhad overseas. The Offender
replied “Yeah I did because I knew this would backfire on us, hamdullah

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[Praise be to God]”. The Offender then said “You know what the first thing he
[Farhad] was going to do?” As he said this, the Offender mimed blowing
himself up. The Offender then said that “There was no ... Couldn't find bombs”.
Abdul then asked the Offender “Did you think he [Farhad] had the courage to
do it?” to which the Offender replied “Yeah I knew he would”.

191 The Offender confirmed in evidence that he had expected that Farhad would
die in the terrorist act although he said that he had made up the reference to
“bombs” in his discussion with Abdul as he was “boasting” and “exaggerating”
the story (T112).

192 Whether the Offender was exaggerating in his reference to “bombs” is not
clear. However, what is clear is that at a time five months after the murder of
Mr Cheng, the Offender was speaking in terms which celebrated the terrorist
act, with no hint of remorse or common humanity and decency in his
description of Mr Cheng. Rather than being shaken by the murder so as to
question his own beliefs, the Offender manifested the same hard-wired criminal
belief system with no concern for his fellow Australian citizens.

7-21 March 2016 - Further Conduct Constituting Offence in Count 3

193 Between 9.05 am and 10.03 am on 7 March 2016, Merhi and the Offender
exchanged messages in which they discussed how to facilitate the movement
of $5,000.00 in cash from Australia to Islamic State. After being asked if the
money should be sent with a traveller, Merhi stated that it should be sent via
money transfer, as it was “faster”. The Offender said that he would get the
“brother” to send it. Merhi then told the Offender to wait and he would get the
number.

194 The Offender told Merhi that he had an “uk[h]ti” (sister) who wanted to travel.
After discussing whether or not the “ukti” was divorced and had completed her
“iddah” (period of waiting after divorce), the Offender confirmed that the “ukti”
was Lebanese. Merhi replied that in this case there was “... no problem ...” to
get her into Syria. Merhi then provided the Offender with the details of his
contact in Australia together with the mobile telephone number and username
of that person. Merhi asked the Offender to see “her” today.

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195 The Offender asked Merhi what he should say to her and confirmed that he
knew who she was. Further messages were exchanged regarding
arrangements to meet this person. The Offender informed Merhi that the “...
brothers wanna know if the money will get there safe”. Merhi replied that he
had proof that the money arrived safely in the form of receipts from Western
Union. Merhi stated that he would photograph the receipt and send it as proof
that the money was received.

196 Merhi explained that money came quickly, “... like as soon as they send it and I
show the guy the [receipt]. He gives the money [on] the spot”. Merhi went on
to write “Yeah the sister is just holding it akhi then her sister or mate sends it
cause she is under age”. Merhi then said that he would send the Offender a
“brother’s” number before he “goes out next time” and that he had “... just got
back today”. The Offender then asked how the situation was “there”. Merhi
replied that the “... ranks are getting cleaned from the munafikeen … the
brothers are getting more steadfast”.

197 The conversation concluded with the Offender asking Merhi to resend the
person’s contact details. Merhi then resent the details and said that he would
get the “sister” to message him and would get him a photo of the receipt for the
money sent. Merhi later sent to the Offender a Western Union receipt for the
amount of $4,000.00, from a previous money transfer as an example.

198 On the same day, Abdul and the Offender had a conversation in which the
Offender said that he had sworn his “bay'ah” (allegiance) to Islamic State.

199 At one point, the Offender and Abdul drove past Alameddine's house in
Merrylands. The Offender pointed out the premises and said to Abdul, “This is
the Alameddine's house. It's the one that always gets raided. It's been on the
news”. Abdul asked the Offender, “Are they the ones that gave the gun to
Raban?”. The Offender replied “yeah”.

200 On 8 March 2016, a conversation was recorded between the Offender and
Hozan Alou. The Offender said to Hozan “They took those boys the last thing
we need ... you (or similar), Raban, [another person]. I was surprised I didn't
get arrested”. Hozan said “Sometimes I wish none of this happened. How
about you?”. The Offender said “You do? I don't care”. The Offender then

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laughed. In response, Hozan said “Haram bro”. During the course of the day,
the Offender and Hozan listened to audio recordings of extremist sermons.

201 Contained in the Offender’s telephone as at 11 March 2016 were various


images of Anwar al-Awlaki (see [47] above) holding firearms in extremist
propaganda (Exhibit 3). It is clear that the poisonous speeches of al-Awlaki
continued to influence the Offender’s extremist beliefs.

202 On 15 March 2016, Abdul told the Offender that the “brothers” were ready to
send the money. Abdul asked the Offender if he had spoken with the girl. The
Offender told Abdul that he had spoken to her and she had told him that she
had a sister who worked at Western Union. The Offender told Abdul that he
could meet the younger sister at Guildford Park. He also told Abdul that he
would pass her number to him so Abdul could arrange to meet her directly,
stating “You guys can go on your own”.

203 The Offender went on to say that he would make arrangements for Abdul to
meet the girl at Guildford Park on 16 March 2016. The Offender informed Abdul
that the female would take the money and would hand it to a younger boy who
would then deliver it to Western Union so “no one gets into trouble”.

204 On 16 March 2016, Abdul asked the Offender if the “girl” still wanted to travel
and if so she should be able to travel through Turkey, not Lebanon. Both men
also discussed arrangements for Abdul to hand over $5,000.00. The Offender
told Abdul that he had deleted the girl's telephone number and that she was not
answering on “Telegram” and that he regularly deleted and reinstalled the
“Telegram” app. The Offender said he would go to the girl's house to re-
establish contact and, as a last resort, his wife had her as a contact on
“Snapchat”. At about 4.09 pm, the Offender sent a message to Abdul telling
him that the girl was not home.

205 On 17 March 2016, Abdul asked the Offender whether the money he had
collected should be donated to “Dawlah” (Islamic State) or go towards a female
who wanted to travel (to Syria). The Offender stated that he could not give a
fatwa on that. Abdul then asked him, “Yeah but when you were raising money
for ... Farhad's sister and for Farhad to get the, the pistol, did like anyone know
about it? Did anyone say anything? Like don't do that or whatever?”. The

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Offender diverted the conversation back to donating money to Shadi, and told
Abdul that the people who donated the money did not know the identity of the
person for whom it was destined.

206 Abdul asked the Offender “Well what about the thing for the ...”. The Offender
said “What the pistol?”. Abdul said “The gun?”. The Offender replied “That was
for free”. Abdul repeated “That was for free?” and the Offender said “Yeah ...
We had the money but Allah's come and just opened the door; and it was for
free”. Abdul then said “So, the brother gave it for free?” The Offender replied
“Yeah”.

207 On 20 March 2016, the Offender spoke to an associate on the telephone to tell
him he had money to give him (to be given to a friend in prison). Later, the
Offender called the same associate and told him to see him at the woman’s
house.

208 On 21 March 2016, Abdul collected the Offender from his home address. They
drove the short distance to an address in Guildford and the Offender entered
those premises alone. When the Offender returned to the vehicle, he and
Abdul drove to Guildford Park. A short time later, a person arrived and spoke
with the Offender and Abdul.

209 During their (recorded) conversation, the woman told both men that “they” sent
the money to Syria via Lebanon, that they sent $10,000.00 a month before but
had not sent any more since that time. When asked by Abdul, the woman said
that they were not able to send $50,000.00 or $60,000.00 but were happy to do
the $5,000.00.

210 Arrangements were then made for Abdul to deliver $5,000.00 in cash about
8.00 am the next day (22 March 2016). Abdul said he would collect the
Offender from his home and then deliver the money to the woman at her home.

The Offender is Arrested on 22 March 2016

211 On 22 March 2016, Abdul collected the Offender from his home in Guildford
and then drove to the woman’s home, where, as arranged, Abdul delivered
$5,000.00 in cash to her and then departed.

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212 A short time later, the Offender was arrested. He has remained in custody
since that date.

Conduct of the Offender in March and April 2016

213 On 31 March 2016, the Offender was shown pictures of graffiti located on the
inside of his cell wall during an ERISP interview with Detective Sergeant Strik
and Federal Agent Foster. Some of the pictures depicted images of terrorist
attacks and made reference to Islamic State. The Offender identified parts of
the graffiti on the cell wall that he had drawn (Exhibit 3).

214 On 28 April 2016, the Offender appeared via audio-visual video link at
Goulburn Local Court. During his appearance, he lifted his index finger towards
the camera (giving an Islamic State salute) (Exhibit A, Tab 7 - affidavit of
Senior Correctional officer David Smithson dated 7 September 2018). The
Offender said in evidence that he gave this gesture as he “was pissed off” at
being charged (T105).

Some Sentencing Principles Applicable to Terrorist Offences


215 As with sentencing for all Commonwealth offences, the provisions of s.16A
Crimes Act 1914 (Cth) are to be applied in sentencing the Offender.

216 In the course of sentencing Alou (R v Alou (No. 4) at 422-423 [165]-[171]), I set
out a number of principles identified by courts in Australia and the United
Kingdom with respect to sentencing for terrorist offences:

“165 The primary considerations on sentence for terrorist offences are the
protection of the community, the punishment of the offender, the denunciation
of the offending and both specific and general deterrence: R v Lodhi (2006)
199 FLR 364; [2006] NSWSC 691 at [92]; Lodhi v R (2007) 179 A Crim R 470;
[2007] NSWCCA 360 at [274]; R v Khazaal [2009] NSWSC 1015 at [47].
166 Subjective circumstances and mitigating factors, including considerations
of rehabilitation, are to be given less weight: R v Lodhi at [89]; Lodhi v R at
[274]; R v Khazaal at [41]; DPP (Cth) v Besim [2017] VSCA 158 at [112]-[113].
167 The religious and ideological motivation of an offender is relevant to the
issue of community protection, as well as to the assessment of the objective
gravity of the offence: R v Kahar [2016] 1 WLR 3156; [2016] EWCA Crim 568
at [19].
168 Where it is not established that an offender has resiled from previously
held extremist views, the element of community protection will assume even
greater importance: R v Lodhi at [82]-[83], [88]; R v Elomar and Ors (2010)
264 ALR 759; [2010] NSWSC 10 at [93]; Benbrika v R (2010) 29 VR 593;
[2010] VSCA 281 at [591].

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169 Weight must be given to the need for general deterrence even if the
force of ideological or religious motivations are such that deterrence may not
be effective: R v Lodhi at [91]-[92]; Lodhi v R at [87]-[88]; R v Barot [2007]
EWCA Crim 1119 at [45]; DPP (Cth) v Fattal [2013] VSCA 276 at [169]; DPP
(Cth) v MHK [2017] VSCA 157 at [52]-[53].
170 Whilst youth is relevant to determining the weight to be given to general
deterrence and denunciation in the sentencing equation, its weight is
diminished quite measurably in terrorist cases where the offender participates
in, plans or carries out actions of extreme violence. The protection of society,
and the upholding of its most fundamental values, necessitates that in terrorist
cases, the sentencing considerations of general deterrence and denunciation
must be given primacy above the ameliorating effect of youth: DPP (Cth) v
MHK at [66]; R v Khalid and Ors [2017] NSWSC 1365 at [109]-[113], [270].
171 In considering the nature and gravity of terrorist offences, courts in
Australia have utilised a number of factors referred to by the UK Court of
Appeal in R v Kahar at [19]: R v Elomar at [62]; R v Benbrika at [564]; R v
Khalid and Ors at [25]. The factors referred to in R v Kahar are:
(a) the degree of planning, research, complexity and sophistication involved,
together with the extent of the offender’s commitment to carry out the act(s) of
terrorism;
(b) the period of time involved, including the duration of the involvement of
the particular offender;
(c) the depth and extent of the radicalisation of the offender as demonstrated
(inter alia) by the possession of extremist material and/or the communication
of such views to others; and
(d) the extent to which the offender has been responsible, by whatever
means, for indoctrinating or attempting to indoctrinate others, and the
vulnerability or otherwise of the target(s) of the indoctrination, be it actual or
intended.”
217 I will have regard to these considerations once again in sentencing the
Offender.

Objective Gravity of Offences


218 Assessment of the objective gravity of the offences is an essential element of
the sentencing process: Tepania v R [2018] NSWCCA 247 at [107]-[108]. The
Court must impose a sentence which is of a severity appropriate in all the
circumstances of the offences: s.16A(1) and (2)(a) Crimes Act 1914 (Cth).

Count 1

219 The Crown submitted concerning Count 1 that the Offender was intimately
involved and complicit in Farhad’s terrorist act on the afternoon of 2 October
2015 and had an extensive involvement from an early stage in the planning
and preparation of the terrorist act. The Crown submitted that the Offender and

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Alou were co-principals in the commission of the offence and the fact that the
Offender is to be sentenced for aiding and abetting does not, of itself, require
the Court to consider him any less culpable than the principal who committed
the terrorist act.

220 The Crown submitted concerning Count 1 that the Offender was a key person
in critical steps leading to the commission of the terrorist act, including:

(a) assisting Alou with attempts to have a radical, extremist flag


made;
(b) attending meetings at Parramatta Park with Alou and others in
August and September 2015, with a suspicious ritual being
filmed on 28 August 2015 (handcuffing of Hozan Alou) and with
Farhad being present as well on 11 September 2015;
(c) meeting with Alou and Farhad at the Parramatta Mosque on 21
September 2015, prior to meeting with X3 that evening in an
effort to obtain a firearm;
(d) assisting Alou to obtain a firearm by attending meetings with
Alou, X2 and X3;
(e) permitting Alou to use his mobile telephone as a point of contact
with X2;
(f) providing money to Alou at or about the time that Alou was
seeking finance for the acquisition of the firearm;
(g) using Alou’s vehicle to attend the Alameddine residence on 29
September 2015 and speaking to a number of unknown males
outside the residence;
(h) after attending the Alameddine residence, travelling to the
Parramatta Mosque and meeting briefly with Farhad in an area
which was out of camera view;
(i) visiting in the vicinity of the Alameddine residence on 1 October
2015 in the company of Alou for the purpose of obtaining a
firearm; and
(j) assisting Shadi to travel to Syria by providing funds and liaising
with his overseas contact, Merhi, to arrange her travel via
Turkey.
221 I approach the factor referred to at [220](j) as being connected with the offence
in Count 1 given the relationship between Shadi’s departure and the timing of
the commission of the terrorist act, which became more urgent after Shadi had
left.

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222 It was submitted for the Offender that he played a lesser role in the Count 1
offence than Alou and that he deliberately backed away from Farhad and
played no role in the supply of the murder weapon to him, was absent from
Parramatta (being at work on the day of the murder) and was nowhere near the
scene of the terrorist attack when it occurred on 2 October 2015.

223 With respect to Count 1, the Offender is to be sentenced for aiding, abetting,
counselling or procuring the commission of the offence. It is not a universal
principle that the culpability of an aider or abettor is less than that of the
principal offender. Much will depend on the circumstances of the case: GAS v
The Queen at 209 [23].

224 I am satisfied that the Offender was a radicalised supporter of Islamic State
and violent jihad for many months prior to October 2015 and that, certainly by
September 2015, he wished to see a terrorist act carried out in the name of
Islamic State in Sydney. The Offender knew that Alou and Farhad were
radicalised with similar views as himself and, certainly by September 2015, the
Offender was aware that Farhad was prepared to carry out a terrorist act
involving the shooting of a person or persons in a public street.

225 The Offender was well aware that Farhad was a 15-year old youth. Even
though the Offender was on friendly terms with Farhad’s family at the time, he
took no steps to dissuade Farhad from carrying through the commission of a
terrorist act, nor did he speak to members of Farhad’s family who (apart from
Shadi) were unaware of Farhad’s plans. Rather, the Offender provided support
and assistance to Farhad in preparations for the terrorist act and separately
assisted Shadi in her plans to travel to Syria to provide direct support to Islamic
State members in that region.

226 The Offender was aware that Farhad was vulnerable because of his age, but
he was content to allow Farhad to commit a terrorist act in circumstances
where he well recognised that Farhad himself would likely be killed.

227 I accept that the Offender’s conduct extended to all of the activities relied upon
by the Crown (at [220] above). In most of these activities, the Offender was
playing a role subsidiary to Alou, accompanying him to meetings involving
efforts to obtain a flag and, more importantly, a firearm. I am well satisfied that

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the Offender was aware of what was planned at that time and that his support
for Alou facilitated the steps which were being taken in advance of the
commission of the terrorist act.

228 To the extent that it was submitted for the Offender, it is not plausible that the
Offender was merely tagging along with Alou to the meetings with persons for
the purpose of a firearm being obtained as a type of disinterested
accompanying friend. Rather, the Offender shared the extremist ideological
views supportive of violent jihad held by Alou, and he was present at meetings
with X2 and X3, and preliminary attempts by Alou to meet with Alameddine,
knowing full well the reason why a firearm was being sought.

229 The Offender was actively involved in the preparation of the commission of the
terrorist act. He played a lesser role than Alou, who carried out critical acts on
2 October 2015 in obtaining the firearm from Alameddine and then meeting
with Farhad at the Parramatta Mosque, and handing the weapon to him for the
purpose of the terrorist act then being committed. The Offender was at work on
2 October 2015 and did not commit these acts with Alou.

230 However, a number of things should be said concerning the Offender’s


involvement in the offence in Count 1.

231 Although Alou may be seen as the prime mover in these events, it is clear that
the Offender was trusted and accompanied Alou on these occasions when a
firearm was being sought so that Farhad could use it to kill a person in a public
street, as both Alou and the Offender well knew.

232 The Offender attended the Parramatta Mosque in the afternoon of 1 October
2015 as part of his employment to install a hot water system. As the CCTV
footage makes clear, the Offender stopped and spoke with Farhad and Alou for
a short period whilst they were in the female prayer room. I am satisfied that
Alou and Farhad were discussing the then state of preparation for the planned
terrorist act, and that the Offender was involved in part of that conversation
although he may not have heard all that was said.

233 At 9.30 pm on 1 October 2015, Alou and the Offender travelled in a motor
vehicle to the vicinity of Alameddine’s house at Merrylands. The appropriate

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inference to be drawn is that the Offender was aware of Alou’s attempts to


obtain a firearm from Alameddine, although it did not become clear until 2
October 2015 that a firearm could be obtained from him for use that day.

234 The Offender was involved in the process of Shadi leaving Australia to travel to
the Middle East. He was an associate of Merhi, who was his Middle East
contact for purposes associated with Islamic State. The Offender provided to
Farhad (who gave it to Shadi) the telephone number of Merhi on about 21
September 2015, with Shadi contacting Merhi the next day by telephone.
Although the Offender may not have been aware of the precise date when it
was planned that Shadi would leave for overseas, he was involved in providing
money for that purpose. I am satisfied that, by the afternoon or evening of 1
October 2015, the Offender was aware that Shadi had left Australia. This
aspect is significant given the likely events which would flow from the discovery
by Shadi’s parents of the fact that she had gone overseas on 1 October 2015,
and the associated issue of Farhad’s intention to commit a terrorist act soon
after her departure.

235 On 2 October 2015, the Offender was working for his employer in a hot water
installation business. Alou was aware that the Offender was working that day.

236 To the extent that it was submitted for the Offender that his absence on 2
October 2015 operated to diminish his culpability for the offence in Count 1,
regard must be had to the Offender’s own evidence that if he had known that
the terrorist act was to be carried out on that day, he would have made sure he
could be in attendance to assist Alou (see [121] above).

237 It is the case that it was Alou who obtained the firearm on 2 October 2015,
before providing it to Farhad at the Parramatta Mosque as the last step before
Farhad set out to commit the terrorist act. As found in sentencing Alou (R v
Alou (No. 4) at 426 [191]), this aspect of Alou’s conduct was of very great
seriousness as he sent a 15-year old boy out to commit murder of a randomly
selected citizen. Although the Offender was not involved on that day in this
way, he was well aware that Farhad intended to carry out such an act if a
firearm could be found.

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238 Having regard to all the evidence, I do not accept the Offender’s evidence that
he had been told by Alou that the attack had been called off (T133). The
Offender was aware that the terrorist attack would occur once Farhad could be
armed for that purpose and he was conscious of the increasing urgency in that
respect given that Shadi had departed Australia on 1 October 2015.

239 The statements made by the Offender as contained in the Bricks Forum after
the murder of Mr Cheng indicate a form of celebration on his part that someone
had been killed in this terrorist attack (see [169]-[171] above). He
communicated enthusiastically with others expressing an interest in seeing
what he believed to be Farhad’s smiling face and raised finger. There was no
sign of any shock, let alone remorse or regret for what had happened. This
continued to be the position for some months as in March 2016, the Offender
commented to Abdul (the undercover operative) that Mr Cheng had “deserved”
to die (see [189] above).

240 By reference to the factors referred to in R v Kahar (2016) 1 WLR 3156; [2016]
EWCA 568 at 3163 [19] (see [216] above):

(a) there was a degree of planning involved (although the plot itself
was not especially sophisticated) and the Offender was heavily
committed to the carrying out of a terrorist act by Farhad using a
firearm which was likely to (and did) cause the death of an
innocent civilian;
(b) the planning for the terrorist act occupied more than four weeks
and the Offender was involved regularly throughout that period;
(c) the Offender was deeply radicalised and a supporter of violent
jihad and Islamic State in the period before, during and after the
commission of the Count 1 offence in September-October 2015;
(d) the Offender was well aware of the depth of radicalisation of the
15-year old Farhad and he acted in a way which reinforced
Farhad’s indoctrination - he took no steps in September-October
2015 to dissuade Farhad from carrying out a terrorist act, nor did
he intervene with Farhad’s parents or brother, Farshad, for the
purpose of saving Farhad and stopping the terrorist act, knowing
full well the vulnerability of a 15-year old boy who was to carry
out the act.
241 These factors serve to aggravate the gravity of the Offender’s crime as
contained in Count 1.

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242 The objective seriousness of Count 1 is substantial although it does not reach
the level of Alou’s offence. However, the offence is extremely serious and is at
the higher end of the scale of seriousness for an offence under ss.11.2(1) and
101.1(1) Criminal Code (Cth).

The Offence to be Taken into Account on Sentence for Count 1

243 The offence of intentionally being a member of a terrorist organisation contrary


to s.102.3(1) Criminal Code (Cth) is to be taken into account on sentence for
Count 1 under s.16BA Crimes Act 1914 (Cth).

244 Although it is a clear component of the facts for Count 1 that the Offender was
a strong supporter of Islamic State, the s.102.3(1) offence involves additional
criminality in that (unlike Alou) he was a member of Islamic State, and not
merely a supporter.

Count 2

245 Count 2 relates to the Offender intentionally making funds available to Islamic
State between about 1 September 2015 and about 1 October 2015 knowing
that the organisation was a terrorist organisation contrary to s.102.6(1) Criminal
Code (Cth), for which the maximum penalty is imprisonment for 25 years.

246 Factors which bear upon the objective gravity of offences under s.102.6(1)
include the amount of funds involved, the identity of the terrorist organisation
and the conduct of an offender surrounding the commission of the offence.
With respect to Count 2, the terrorist organisation was Islamic State, a terrorist
organisation of the worst type.

247 Conduct caught by the offence in Count 2 relates to the Offender making funds
available for the purpose of Shadi travelling overseas to advance the interests
of Islamic State. Although the quantum of the funds made available was not
great, the funds permitted Shadi to travel to Syria to provide direct assistance
to Islamic State.

248 Further, the Offender used his contact in the Middle East (Merhi) to facilitate
Shadi’s travel to support Islamic State. The Offender played a significant
organisational role with respect to the implementation of the making of funds
available to Islamic State. The Offender provided informed advice to Shadi

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which was intended to assist her journey to Syria and he followed up to ensure
that she had arrived at her destination.

249 This is a significant offence on its own, although there is some overlap with the
conduct relevant to Count 1, given that the Offender’s knowledge of Shadi’s
travel arrangements was a factor which bore upon the timing of the
commission of a terrorist act. It is necessary to avoid double counting this
factor in a manner adverse to the Offender.

250 In all the circumstances, Count 2 is an offence of substantial objective gravity.

Count 3

251 Count 3 charges a further offence under s.102.6(1) relating to the period
between 29 December 2015 and 22 March 2016. This offence involves
conduct on the part of the Offender where the offence was committed in the
context of his dealings with Abdul, and where there was no real prospect that
funds would actually reach Islamic State because it formed part of an
undercover operation.

252 However, as the recital of the facts makes clear, the Offender engaged in
elaborate steps over a lengthy period to facilitate the planned transfer of funds
to assist Islamic State. The Offender displayed expertise in this area which (if
put in effect) would provide substantial assistance to the terrorist organisation.
Further, the offence in Count 3 was committed against the background of the
Offender’s commission of Counts 1 and 2, and served to demonstrate the
depth of his commitment to the criminal cause of Islamic State. These aspects
serve to magnify the Offender’s criminality in Count 3.

253 The fact that there was no prospect in Count 3 that the funds would actually
reach Islamic State, so that actual harm would not be caused, does not provide
real assistance to the Offender on sentence. There is a broad analogy with
sentencing for drug supply offences where the drugs will not reach the public
because the drugs are supplied to an undercover operative: R v Achurch
(2011) 216 A Crim R 152; [2011] NSWCCA 186 at 166-168 [87]-[100].
Although the fact that funds did not actually reach Islamic State is a factor to be
taken into account on sentence, a primary consideration remains that the

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Offender intended to make funds available to Islamic State and that it was no
act of his that resulted in this not happening: R v Achurch at 168 [97].

254 Once again, the Offender’s significant organisational role, and his knowledge of
Islamic State through Merhi, were important features bearing upon the
objective gravity of the Count 3 offence.

255 Count 3 is an offence of substantial objective gravity under s.102.6(1) of the


Criminal Code (Cth).

The Offender’s Subjective Circumstances


256 The Offender was 19-20 years old at the time of the offences and is now 22
years old.

257 The Offender has no prior criminal history.

258 I have mentioned earlier (at [26]-[31]) aspects of the Offender’s personal
history before and after he and his family came to Australia in 2006.

The Psychiatric Evidence

259 In evidence, the Offender confirmed that what he had said to Dr Furst was
truthful and accurate (T181, 186). According to Dr Furst’s report, the Offender
does not drink alcohol or use any illicit drugs. He has no significant medical
problems apart from sporting injuries sustained when playing soccer. There is
no family history of mental illness.

260 When examined by Dr Furst by audio-visual link on 24 August 2018, Dr Furst


considered the Offender to be “lucid, alert and reactive at the time of
assessment, with no indications of pervasive depressed mood or psychosis”.
Dr Furst noted that the Offender was anxious about the upcoming sentencing
hearing, but there were “no indications of cognitive disorder and he appeared
to be of average intelligence”.

261 Dr Furst considered that the Offender did not suffer from a major mental
illness, depressive disorder, anxiety disorder, substance use disorder or any
other diagnosable mental disorder according to DSM-5 criteria.

262 Dr Furst outlined the Offender’s pathway towards radicalisation in the following
way (page 7):

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“It would appear that he was not overly religious in his early childhood or early
teens, socialising in a ‘normal’ manner, including social contact with girls on
social media platforms.
His pathway towards radicalization, as with the majority of terrorism-related
offenders, was likely facilitated through extremist social contacts and
influences, his older brother being very religious and the friendships that he
developed from 2013 onwards including other members of the so-called
‘Appleby Group’, most notably Raban Alou.
His apparent radicalization towards adopting the Jihadist ideologies of ISIS
were also facilitated through regular Internet access to extremist websites that
gave him a distorted perspective on events in the Middle East and helped to
engender a sense of anger and hatred towards police, the Australian
Government and other countries involved in the fight against the Islamic state.
Mr Atai shared the core beliefs of the Islamic State, namely that Islam
throughout the world is under attack and that there is a religious obligation to
respond to that attack by means of violent jihad.”
263 Dr Furst observed (page 8):

“Mr Atai’s strong connections with other members of the Appleby Group,
especially Raban Alou, identification with the Islamic State cause, Caliphate,
and the Fatwa of Abu Bakr al-Baghdadi issued on 23/09/14 are probably the
most important factors that led him to participate in the terrorism offence in
question before the court.”
264 Dr Furst proffered the following suggestion with respect to the long-term
management and rehabilitation of the Offender (page 8):

“Access and engagement in work and/or education programs, increased


socialization with non-radicalised individuals and proper religious education
and teaching would likely be of assistance in Mr Atai’s long-term management
and rehabilitation.
In my opinion, the most useful interventions in terms of ‘treatment’ would
include further religious teaching by a moderate Imam and/or a program of
deradicalization such as PRISM in order to target radical beliefs and
discourage previous peer associations that drove his participation in the
offence in question before the Court. Such measures should aim to encourage
a mainstream and prosocial religious outlook.”
265 Dr Furst concluded his report in the following way (page 9):

“At the time [of] the recent assessment, Mr Atai was showing some
encouraging signs of moving away from Islamic State support and his previous
support for the radical jihadist cause. Mr Atai now claims to appreciate the
wrongfulness of his actions and apparently no longer holds extremist beliefs
endorsing radical Jihad or support for the Islamic State, suggesting he has
developed insight into the wrongfulness of his beliefs during his time in
custody over the last two years.

He is currently willing to engage in programs of deradicalization, such as
PRISM and has seen the Imam on a number of occasions. His wife and family
are supportive. He is a young man who is likely to mature over time and will

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hopefully maintain his apparent recent gains and hold more moderate religious
beliefs over time.”
266 Dr Furst’s report predates the Offender’s letters of 14 October 2018 in which he
recanted much of what he had said in evidence. No further report was obtained
from Dr Furst to address these recent developments. Accordingly, Dr Furst’s
opinion must be heavily qualified as a result of the Offender’s changed
position, which largely removes the foundation for Dr Furst’s opinion
concerning the Offender’s prospects of rehabilitation.

Other Documentary Evidence in the Offender’s Case

267 Ms Cody Clarke, the Offender’s wife, provided a letter to the Court dated 17
September 2018. The Crown did not wish to cross-examine Ms Clarke at the
sentencing hearing. Ms Clarke recounted her relationship with the Offender
over a number of years. She has provided ongoing support to the Offender
whilst he is in custody including visits and telephone contact so that he
maintains an association with their young son. Ms Clarke spoke of the
difficulties which she faces in a number of respects including the travelling
involved to visit the Offender in Goulburn. It is to be hoped that Ms Clarke’s
ongoing support for the Offender will assist him with respect to rehabilitative
efforts. That said, there was no further evidence from Ms Clarke following the
Offender’s letters of 14 October 2018. Her reaction to the Offender’s letters
may be gleaned from an entry in the Offender’s Corrective Services NSW case
notes for 30 October 2018 where she expressed concern that the Offender had
“done something really stupid” (Exhibit 4).

268 Mr Mohammad Nader Azamy, President of the Afghan Community Support


Association, stated that he has known the Offender’s family on a professional
and personal basis for several years. The Offender’s family are regular
volunteers for community functions and other events and assisted with the
building of a Mosque at Blacktown. Mr Azamy stated that a strong support
network and guidance was required for the Offender to rehabilitate when he is
released. He indicated that the Afghan Community Support Association would
continue to provide support to the Offender’s family, and do all that is required
to support the Offender when he is released from prison “in respect of his
moral, religious, psychiatric counselling and/or mentoring for him to lead an

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ethical and honest life in order to successfully re-enter society”. Once again,
there is no evidence of Mr Azamy’s views in light of the Offender’s letters of 14
October 2018.

269 On the face of it, the Offender has family and community support mechanisms
which should assist him when in custody and provide support at a time when
conditional release from custody is possible.

270 Other documentation tendered in the defence case on sentence points to the
Offender’s compliant and polite behaviour in custody, accompanied by a stated
desire that he undertake further education whilst in custody.

Conditions of the Offender’s Custody

271 The Offender entered custody on 22 March 2016 and was transferred to the
Metropolitan Remand and Reception Centre at Silverwater where he remained
until 31 March 2016, when he was transferred to the HRMCC within the
Goulburn Correctional Complex where he has been housed since.

272 On 19 April 2016, the Offender was assigned a Category AA security


classification under Clause 12(1) Crimes (Administration of Sentences)
Regulation 2014 (“CAS Regulation”) and he remains on that classification. Also
on 19 April 2016, the Offender was assigned an Extreme High Risk Restrict
(“EHRR”) designation on the basis of the criteria set out in Clause 15(3) CAS
Regulation and that designation has remained.

273 According to the affidavit of Senior Assistant Superintendent Poulsen, the


Offender is currently on a Behavioural Management Level (“BML”) of Stage 3
Level 3 with this classification dictating the sanctions and privileges which
apply to him in the HRMCC.

274 The Offender has incurred one institutional misconduct offence whilst in
custody when, on 16 September 2016, he removed the tape restricting access
to the USB port on a Corrective Services NSW computer issued to him, an
offence for which a penalty of 14 days off buy-ups was ordered. Apart from that
incident, reports indicate that the Offender is compliant with routine and polite
towards staff in the HRMCC.

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275 The Offender has approval for non-contact visits by his mother, his wife and his
niece. There have been contact visits approved for his wife and son. Six
telephone numbers have been approved for communications by the Offender
with his mother, wife, sisters, mother-in-law and grandmother-in-law.

276 To the extent that there was some criticism in the cross-examination of Senior
Assistant Superintendent Poulsen concerning visits, it should be noted (as the
witness indicated) that provisions in the CAS Regulation require approval of
visitors to EHRR inmates (Clause 94) with a requirement that visits to EHRR
inmates be conducted in English or an approved language (Clause 101).

277 The CAS Regulation provides for access to funds by EHRR inmates and each
inmate may spend amounts specified on his BML plan on buy-ups each week.
Based on the Offender’s current BML plan, he is able to spend $100.00 on his
buy-ups each week involving an ability to purchase a variety of goods including
toiletries and food stuffs. Records indicate that, as at September 2018, the
Offender has had approximately 80 canteen buy-ups since being in custody.

278 Inmates at the HRMCC are permitted to have access to television, a


refrigerator, radio, a fan, a kettle and sandwich maker in accordance with their
BML. Inmates have access to the HRMCC library book service and a legal
computer room on request each morning. The HRMCC has a running track,
basketball courts, multiple exercise yards, computer rooms and shared day
and rear yards which are available in accordance with allowances under an
inmate’s BML. The evidence indicates that the Offender has access to
amenities and other recreational facilities on days when the HRMCC is
operational, although there is a heavy demand for these facilities with inmates
having access on a rotational basis. The Offender has frequently accessed
amenities during his time in custody.

279 In cross-examination, Senior Assistant Superintendent Poulsen agreed that


there is limited access to education for inmates in the HRMCC (T15).

280 I will have regard on sentence to the Offender’s conditions of custody, which
include additional limitations flowing from his classification and designation
because of the nature of his offences.

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Expansion of the HRMCC

281 In response to a question from the Court, Senior Assistant Superintendent


Poulsen explained that an expansion of the HRMCC was being undertaken
with an area of the Goulburn Correctional Complex being closed and
refurbished for the purpose of it being regazetted as part of the HRMCC (T25).
He explained that this will become part of the HRMCC next year. He described
the purpose to which this new area would be put in the following way (T25):

“Area 2 will be highly resourced with education, counselling, PRISM are going
to have a very big role in there, the chaplaincy service, there’s a lot of
programs and education and that is what that unit is specifically being
developed for as a transition unit from the super-max setting to a more normal
correctional centre. So it’s like a trial area to see how they participate and how
they go.”
282 Senior Assistant Superintendent Poulsen explained that this new area would
be able to locate inmates who showed signs of rehabilitation (T26-27).

283 Although this evidence may have had some bearing on the Offender’s case at
the time of the sentencing hearing in September 2018, his letters of 14 October
2018 (to which I will return shortly) indicate a change of attitude on the part of
the Offender.

PRISM

284 Ms Stephanie Scott-Smith is the senior psychologist for PRISM within


Corrective Services NSW. She described PRISM as a State-wide
multidisciplinary team which provides a custody-based service for offenders
who have expressed certain religious or political views, or acted in such a way
that may be considered radical or extreme. PRISM is designed to assist
identified offenders to disengage from extremist groups or behaviours, to desist
from support or involvement in offending behaviour and to reintegrate into
society.

285 The PRISM team currently consists of a senior psychologist, an additional


psychologist and a religious support officer. PRISM commenced on a trial basis
in February 2016, providing intervention and assistance to a small number of
offenders focusing on those who were nearing release to parole.

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286 Participation in PRISM is on a voluntary basis and eligibility for referral requires
an offender to be convicted of the offence for which he is incarcerated with a
minimum of 12 months remaining prior to the earliest possible release date. In
light of the evidence of Senior Assistant Superintendent Poulsen concerning
changes to the HRMCC (see [281] above), it appears that PRISM may become
more readily available to inmates who volunteer for it and are assessed as
suitable.

287 An offender with outstanding terrorism or national security charges will not
ordinarily be considered eligible for inclusion in PRISM until after the person
had been convicted and sentenced for the relevant offence.

288 Ms Scott-Smith outlined the nature and scope of intervention by the PRISM
team following a comprehensive assessment process to identify individual risk
indicators in order to develop an individualised intervention plan. The process
involves identification of intervention targets with an approach tailored for the
particular person.

289 Ms Scott-Smith outlined the progress of PRISM so far with offenders who had
become involved in the program.

290 Ms Scott-Smith outlined the reasons for referral to PRISM as including various
behavioural indicators of radicalisation. Without listing all these factors, it is
clear that the Offender’s extremist past words and conduct disclose a heavy
level of radicalisation so that the criteria for referral to PRISM would be prima
facie satisfied in his case.

291 However, participation in PRISM is voluntary. In light of the Offender’s letters of


14 October 2018, it would seem unlikely that he wishes to travel down that path
unless there is a substantial change in his attitude.

The Offender’s Evidence and Issues of Contrition, Remorse, Prospects of


Rehabilitation and the Risk of Reoffending
292 Before moving to consider the evidence under this heading, it is necessary to
set out some relevant legal principles.

293 In sentencing the Offender, the Court is required by s.16A(2)(f) Crimes Act
1914 (Cth) to take into account the degree to which he has shown contrition for

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the offences by taking action to make reparation for any injury, loss or damage
resulting from the offences or in any other manner. The Court must also have
regard to his prospects of rehabilitation: s.16A(2)(n) Crimes Act 1914 (Cth).

294 The Offender bears the onus of proving contrition on the balance of
probabilities, it being a factor which he relies upon to mitigate sentence (see
[20] above). Likewise, it is for the Offender to demonstrate that his prospects of
rehabilitation are favourable to him.

295 There is no substantial difference between the terms contrition and remorse,
with the words being used interchangeably in this context: Georgopoulos v R
[2010] NSWCCA 246 at [48].

296 In a sentencing context, remorse means regret for the wrongdoing which the
offender’s actions has caused, because it can be safely assumed that an
offender will always regret the fact that he or she has been apprehended:
Alvares v R (2011) 209 A Crim R 297; [2011] NSWCCA 33 at 313 [44].

297 In R v Whyte (2004) 7 VR 397; [2004] VSCA 5, Winneke P (Bongiorno and


O’Bryan AJJA agreeing) observed at (403 [21]) that it is rare to find convincing
evidence of genuine remorse and that remorse is an elusive concept which is
not to be confused with emotions such as self-pity. It has been said that
remorse is not a matter that directly affects the culpability of an offender, but is
regarded as a relevant sentencing consideration because it forms part of the
rehabilitative or reformative component of the sentence: R v Gray [1977] VR
225 at 231; Freiberg, “Fox and Freiberg’s Sentencing: State and Federal Law
in Victoria”, Lawbook Co, 2014, paragraph [6.95]. The existence of remorse will
be a major factor in determining whether an offender is unlikely to reoffend and
has good prospects of rehabilitation: R v MAK (2006) 167 A Crim R 159; [2006]
NSWCCA 381 at 169-170 [41].

298 Assessment of the genuineness and value of remorse is likely to be better


informed in circumstances in which it is expressed by an offender directly (that
is, face-to-face) as remorse is an intrinsically subjective matter, the evaluation
of which depends on the subtleties of human interaction: Alvares v R at 313
[44]; Mun v R [2015] NSWCCA 234 at [39].

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299 It has been said that, in a sentencing context, apologies are complex societal
communications in which an offender is normally apologising both to the direct
victim and to the Judge (representing society) for having committed a
proscribed act and to show that an offender knows and respects the moral
boundaries of society: Shapland, “Personal Mitigation and Assumptions About
Offending and Desistance” published in Roberts (ed), “Mitigation and
Aggravation at Sentencing”, Cambridge University Press, 2011, page 69.

300 The evidence indicates that the Offender became radicalised through his
association with others (including Alou) and his internet viewings, reinforced by
his later participation in the Bricks Forum. The Offender told the Court that his
process of radicalisation had not been contributed to by face-to-face
involvement with a preacher, but “was all online” (T190). The evidence points
to the insidious influence of internet recordings emanating from the twisted
minds of persons such as Anwar al-Awlaki and Ahmad Musa Jibril (see [47]
and [60] above).

301 It is the case that the Offender did not have to give evidence at the sentencing
hearing in September 2018. In doing so, he exposed himself to cross-
examination. It is necessary for the Court to have regard to the evidence which
he gave, both as to content and demeanour. A number of statements made by
the Offender were contrary to his own interests.

302 The evidence of the Offender was that, since he has been in custody, he
became aware of a concept where, given his family’s migrant status and later
citizenship in Australia, there is a form of contract between himself and
Australia so that he will not commit any act which harms other Australians
(T92, 110). He stated that he no longer supported Islamic State (T69-70). He
maintains support for the Taliban (T106, 177) and other organisations and
expresses a willingness to travel overseas to act as a foreign fighter. He
supports Jabhat al-Nusra which is a prescribed terrorist organisation (T107,
171).

303 The Offender described his feelings about Australia now as being “neutral”
(T70).

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304 The Offender said that he was “still probably a radical … because I still believe
in jihad, fighting overseas, but I don’t believe in attacking the west, that’s the
only thing I don’t believe” (T186).

305 He indicated that he was no longer a supporter of Islamic State but was in two
minds as to whether Farhad had become a martyr as a result of killing Mr
Cheng and then himself being killed (T189-190).

306 Expressions of remorse were made by the Offender in answer to leading


questions from his counsel. In examination-in-chief, Senior Counsel for the
Offender asked (T96):

“Q. Yesterday you saw Mrs Cheng give evidence in court?


A. Yeah.
Q. Give a victim impact statement?
A. Yeah.
Q. And did you find that sad?
A. Of course.
Q. And with your change of attitude towards Australians and the law and
obeying the law of Australia what do you say about whether Curtis Cheng
deserved to die?
A. No, 100% it was wrong. What happened should not have happened that
day you know.
Q. And do you regret that it happened?
A. Of course. If I can go back in time I’ll stop it 100%.
Q. And when is it that you formed these views of regret?
A. In gaol.”
307 In-re-examination, Mr Smith SC (and the Court) asked the Offender (T196):

“Q. Mr Atai, you were asked some questions about not talking, not trying to
talk Farhad out of violent activity, you recall that?
A. Yeah.
Q. Do you have any regrets about not trying to talk him out of it?
A. Yes I do, yeah.
HIS HONOUR:
Q. How do you feel about it?
A. What do you mean?
Q. Well you tell me how you feel about that, you say there are regrets but you
tell me how you actually feel about it?

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A. I wish it never happened and if I could [go] back in time.


Q. But that could mean a number of things Mr Atai, it may mean you wouldn’t
be in the situation you’re in right now but I want to find out whether you are
genuinely sorry for any of this?
A. Yes.
Q. Is there anything you want to [say to] Mrs Cheng, who is in Court right now?
A. Yes I do.
Q. Well what do you want to say to her?
A. I’m sorry for what happened and I’m sorry for what I put her through, her
and her family, her and her son and daughter and if I could go back, I wish I
would never get involved in this situation. I take responsibility for my actions.”
308 The onus lies upon the Offender, on the balance of probabilities, to
demonstrate the existence of genuine contrition and remorse. Likewise, the
Offender carries the onus of establishing, on the civil standard of proof, that he
is moving away from the extremist beliefs which motivated his crimes: Director
of Public Prosecutions (Cth) v Besim [2017] VSCA 158 at [108]-[109]. The fact
that the Offender was prepared to give evidence in September 2018, and face
cross-examination, and in doing so, to move some (perhaps small) distance
from Islamic State, assisted him to an extent on sentence: Director of Public
Prosecutions (Cth) v MHK (A Pseudonym) (No 1) (2017) 52 VR 272; [2017]
VSCA 157 at 292 [67]-[68].

309 The Offender’s expression of regret for the offence contained in Count 1 which
saw the killing of Mr Cheng was somewhat lukewarm. At the same time, it may
be said that the expression of a fulsome apology would itself have been of
doubtful credibility at that point.

310 The most that could be said is that, by September 2018, the Offender had
moved, to an extent, from the position which he held certainly throughout 2015
and up to his arrest in March 2016. He maintained a fully radicalised position
supportive of Islamic State well into his period in custody.

311 Courts must exercise caution in assessing the genuineness of claims that a
holder of extremist views is prepared to move away from them, especially
when that claim is made at a sentencing hearing. That said, it is in the public
interest for persons who have committed terrorist offences to seek to engage in
a process which has a capacity to assist an offender to alter thought processes

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so as to comply with the laws of society. As at 21 September 2018, there was


some prospect that the Offender was prepared to set out on this pathway in the
extended period of imprisonment which must follow for his serious crimes.

312 The Offender had stated belatedly that he wished to undertake a process of
deradicalisation commencing from deeply entrenched extremist beliefs which
have modified to a limited extent from support to Islamic State to support for
the Taliban and Jabhat al-Nusra.

313 The Offender has no prior criminal history so that his prospects of rehabilitation
and risk of reoffending are tied closely to an alteration in his belief system so
that he complies with the ordinary decent standards of the law-abiding
community.

314 As things stood as at 21 September 2018, I proposed to take into account in


the Offender’s favour on sentence the very guarded assessment which could
be made at that stage with respect to these features, knowing that the Offender
has family and community support systems available to him, and that any steps
to be taken by him towards rehabilitation would be scrutinised carefully during
his sentence, and when the time came for a parole decision to be made with
respect to him at a considerable time in the future.

The Offender’s Letters of 14 October 2018


315 It was against this background that the Offender sent letters dated 14 October
2018 to the AFP and to the Senior Counsel for the Crown.

316 The letter to the AFP (Exhibit P) said:

“In the name of Allah


All praise is due to Allah, may peace & Blessing Be upon his messenger & his
family & his companions: to what follows.
I’m writing this letter regarding what happen in court & I would like to say few
thing’s that has been playing in my mind. Firstly I said that I’m sorry to Cheng
family & about me being regretful about my action. I would like to say I’m not
sorry about my action nor I’m regretful of my action. I take back what I said in
the box because I was in the heat of moment & I just slipped up. All praise is
due to God I’m happy with my action.
If use can please let the Judge know about this letter & I want him to know
were [sic] I stand with this remorse bullshit. Remember this I have sold my life
for a cheap price & that is the next life because this world is only temporay
[sic] & the hereafter is eternal.

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I ask Allah to grant victory to the believers & to destroy those who oppress his
slaves. Ameen
‘And the worldly life is not but Diversion & amusement. And indeed, the home
of the hereafter that is the eternal life, if only they knew’.”
317 The letter to the Senior Counsel for the Crown (Exhibit Q) said:

“Im writing this letter regarding what happen in Court. I would like to say few
thing’s that has been playing in my mind. Firstly I said that I’m sorry to Cheng
family & about me being remorseful about my action’s. I would like to say that
I’m not sorry nor I’m regretful for my action. I take back what I have said
because I wasent [sic] been truthful.
If use can please let the Judge know about this letter before my sentencing
because I don’t want any discount regarding remorse.
Thank you.”
318 No oral evidence was given at the resumed sentencing hearing on 15
November 2018. Senior Counsel for the Offender tendered Corrective Services
NSW case notes which included the following entry concerning an assessment
of the Offender by a psychologist on 25 October 2018 (Exhibit 4):

“Presentation: The inmate was polite and cooperative with the interview. He
appeared to understand and respond to questions appropriately. Nothing
unusual was noted in his speech. He rated his mood as '11' out of 10, although
his mood did not seem elevated, but rather within normal range. His affect was
reactive and appropriate to the discussion. Thought form appeared intact at
interview with content appropriately focused on current concerns. Memory and
cognition were not formally assessed.
Discussion: Atai was advised that management had become concerned about
his welfare after he had produced documentation retracting statements of
remorse he had apparently made during his legal proceedings. Atai
acknowledged that this had occurred. He further clarified indicating that while
he continued to hold to his belief system, he had ‘felt for her (Mrs Cheng) as
anyone would’, and that his decision to retract his statements was in response
to being ‘pissed off with the judge’. He indicated that he was comfortable with
his decision and that he was satisfied that his legal representative understood
his position and would represent that in later proceedings. He was asked how
he would respond in the event that he received a lengthy sentence and he
indicated that he would cope with this. He was able to describe a number of
strategies that he employs to manage his mood, including training, speaking
with his wife, talking with other inmates and reading the Quran.
On specific questioning Atai denied any history of mental health concerns. He
also denied any thoughts of suicide or self-harm, and any current intent in this
regard, stating such actions were ‘forbidden’ by his religion.
Impression / Plan: The inmate does not appear to be at immediate risk of harm
to self and appears to be coping adequately with his current circumstances.
Atai indicated a willingness to engage with psychology post-sentencing and is
aware of the process for referral to OS&P staff.”

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319 It was submitted for the Crown that the Offender’s letters involved, amongst
other things, withdrawal of his apology to the Cheng family and the
maintenance of his extremist views supportive of violent jihad. It was submitted
that the letters operated strongly against the Offender in the areas of contrition
and remorse, the need for general and specific deterrence, his prospects of
rehabilitation and deradicalisation, protection of the community and his veracity
and truthfulness as a witness.

320 Mr Smith SC submitted that the letters and the case note for 25 October 2018
revealed some level of regret directed to Mrs Cheng and that the Court should
acknowledge the Offender’s frankness in explaining his position as he has
done in the letters and to the psychologist on 25 October 2018.

321 Mr Smith SC agreed that there was no evidence of pressure being placed upon
the Offender to write the letters (T271).

322 Whilst acknowledging that the letters did not assist the Offender in a number of
respects, it was submitted that they did not operate in the completely
destructive fashion as argued by the Crown.

323 In an area where the Offender carries the onus of proof to the civil standard, I
am satisfied that this additional evidence operates to neutralise almost entirely
the factors which I have mentioned which operated in his favour at the end of
the sentencing hearing on 21 September 2018.

324 What was a somewhat fragile and tentative expression of regret directed in
Court to Mrs Cheng has been withdrawn and replaced by a cursory
observation made to the psychologist that the Offender “felt for [Mrs Cheng] as
anyone would”. This is not evidence of remorse. Indeed, the approach adopted
by the Offender towards the Cheng family is cruel and devoid of basic
humanity.

325 Beyond that, the Offender is once again using the slogans of violent jihad. He
states that he is “happy with my action” and asks “Allah to grant victory to the
believers and to destroy those who oppress his slaves”. The Offender makes
clear that he continues to attach himself to the warped and criminal belief
system which has led him to his present custodial position.

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326 Although there is no evidence of pressure being placed upon the Offender to
send these letters, I have considered the situation in which he finds himself. I
am conscious that the Offender is housed in the HRMCC with others, including
Alou, who, certainly as at the date of his sentencing on 1 March 2018,
remained fixated on violent jihad: R v Alou (No. 4) at 430 [224]ff. It may be
easier for the Offender to remain aligned with others in custody who hold to the
robotic slogans and fixated thought processes of Islamic State.

327 That said, the Offender has determined what course he wishes to take and has
expressed himself in clear terms in the 14 October 2018 letters with the
psychological assessment undertaken (prudently) by the correctional
authorities on 25 October 2018 indicating that the Offender had chosen this
approach after consideration, and that he proposed to adhere to it knowing of
the likely consequences.

328 The Offender is not to be punished further for the course he has taken since 14
October 2018. However, he is deprived of several mitigating factors which
would otherwise have operated in his favour on sentence.

329 There is no evidence of contrition or remorse or the development of insight into


his offending and the harm done to individuals and the Australian community.
The Offender remains attached to the belief system of violent jihad which bears
upon issues of specific deterrence and protection of the community and his
prospects of rehabilitation and risk of reoffending. I have regard, as well, to the
Offender’s acknowledgement that he gave untrue evidence on a number of
issues at the sentencing hearing.

330 Before this recent development, the Offender had support in the community
from his wife and family and the Afghan community and he expressed an
interest in choosing a pathway towards change. Whether the Offender
reconsiders his position in the future with respect to his attitude to the offences
and his belief system remains a matter for speculation and not any prediction
based on reasonable grounds.

331 Based on the evidence now before the Court, the Offender’s prospects of
rehabilitation are not favourable and his risk of reoffending remains significant,

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albeit allowing for the substantial period of time which will pass before he is
eligible for consideration for release on parole.

Victim Impact Statement on Behalf of the Cheng Family


332 Mrs Selina Cheng read a victim impact statement made on behalf of herself,
her son, Alpha Cheng, and her daughter, Zilvia Cheng.

333 The Court may take into account on sentence a victim impact statement of any
persons who are victims of the offence and who have suffered harm as a result
of the offence: ss.16A(2)(ea), 16AAA and 16AB Crimes Act 1914 (Cth).

334 The direct victim of the terrorist act, Mr Cheng, was an Assistant Management
Accountant employed by the New South Wales Police Force as a civilian
finance worker. He worked at the Police Headquarters in Parramatta. He had
been employed by the New South Wales Police Force from 1 November 1997
until the date of his death on 2 October 2015, a period of almost 18 years. Mr
Cheng was 58 years old at the time of his death. He was leaving work and was
unarmed on 2 October 2015. He was innocently going about his normal affairs,
walking down the street, when he was selected randomly as the target for a
terrorist attack. He was shot dead in the terrible circumstances described
earlier in these remarks.

335 The shooting of Mr Cheng was an attack upon the New South Wales Police
Force as well, as Farhad had selected Mr Cheng upon the basis that he had
just emerged from the New South Wales Police Headquarters’ building.
Farhad’s note also points to a desire to attack the authorities in the form of the
New South Wales Police Force.

336 Curtis Cheng was a fine man and a beloved husband and father. He worked in
the interests of the people of New South Wales in his employment as an
accountant with the New South Wales Police Force. Mrs Cheng told the Court
that the day her beloved husband was “murdered in cold blood was the longest
and most painful day of my life”. Her words, and the emotions which
accompanied those words, made entirely clear to all that heard her speak why
she felt that way.

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337 Mrs Cheng has suffered enormously as a result of her husband’s death. She
stated that her husband was harmless and was a good man and the gentlest of
souls. He was an innocent victim selected randomly to be the subject of this
mindless atrocity.

338 In words which would be supported by all right-minded members of the


community, Mrs Cheng stated that she was “utterly repulsed by those who had
any part in Curtis’ senseless murder”. The dreams she shared with her
husband to “enjoy a happy retirement had been totally shattered”. The
shocking effects of this senseless crime upon the Cheng family were laid bare
for all to see.

339 Mrs Cheng attended each day of the sentencing hearing concerning the
Offender. She has been present, as well, on many days when other
proceedings have been before the Court arising from the murder of her
husband. Alpha Cheng and Zilvia Cheng have also attended Court during
these proceedings.

340 When sentencing Alou on 1 March 2018, I noted the fortitude, strength,
courage, humanity, decency and dignity of the Cheng family in their response
to this random act of homicidal violence which struck their family. These
features have manifested themselves constantly on the occasions since March
2018 when members of the Cheng family have attended what are undoubtedly
difficult and challenging court proceedings for them.

341 The strength and decency of the Cheng family may be contrasted with the
cowardice and moral depravity of the Offender, Alou and Farhad in the
commission of this terrible act.

342 The position adopted by the Offender since 14 October 2018 has compounded
the impact of this offence upon the Cheng family. As at 21 September 2018,
the Cheng family had at least a fragile and tentative expression of regret from
the Offender. That apology has been effectively withdrawn - a cruel act by the
Offender.

343 When sentencing Raban Alou, I referred to one of the purposes of victim
impact statements in Commonwealth sentencing proceedings being to

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“promote the rehabilitation of offenders by confronting them with the impact of


their offending behaviour”: R v Alou (No. 4) at 434 [262]. The Offender’s initial
reaction to Mrs Cheng’s victim impact statement involved some response from
him accepting responsibility and expressing regret for what he had done (see
[307] above). However, the Offender has abandoned this position in a way
which does not assist him, including an assessment of his prospects of
rehabilitation.

344 The victim impact statement read by Mrs Cheng provides eloquent and
profound support for the loss suffered by the family as a result of these crimes.
The trauma, grief and emotional harm caused to Mr Cheng’s family, his friends
and colleagues, both inside and outside the New South Wales Police Force,
are apparent from the words spoken in the victim impact statement and the
circumstances of the terrible loss of this fine man.

345 I extend the deepest sympathy of the Court and the Australian community to
Mrs Cheng, Alpha Cheng and Zilvia Cheng for the great loss that each of them
has suffered and will continue to suffer, arising from these shocking events.

The Offender’s Pleas of Guilty


346 The Offender was arrested in connection with these offences on 22 March
2016.

347 The Offender was committed for trial from the Downing Centre Local Court on
19 May 2017. According to an agreed chronology, the Offender did not
commence plea negotiations with the Crown until September 2017. That
process took eight months from September 2017 until May 2018.

348 In the meantime, the Offender was arraigned (with others) in the Supreme
Court on 7 July 2017 and his trial was fixed (as a joint trial) to commence on 4
June 2018.

349 On 9 May 2018, an offer to plead guilty to the present offences was made by
the Offender’s legal representatives with that offer being accepted by the
Crown on 16 May 2018.

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350 On 18 May 2018, the Offender pleaded guilty to the three offences on the
indictment and admitted the matter to be taken into account on sentence under
s.16BA Crimes Act 1914 (Cth).

351 The Court allowed a 15% discount for the utilitarian value of pleas of guilty
when sentencing each of Alou and Alameddine: R v Alou (No. 4) at 432-433
[242]-[255]; R v Alameddine (No. 3) at [258]-[275]. It should be noted that Alou
pleaded guilty to the charge against him when the matter was before the Local
Court with him thereafter being committed for sentence. Alameddine offered to
plead guilty to the charges for which he was sentenced on 6 July 2017, one
month after being arraigned in the Supreme Court.

352 It was submitted for the Offender that a discount of at least 15% should be
applied for the utilitarian value of his pleas of guilty entered soon after the
Crown had agreed to alter the charges originally laid. The Crown submitted
that the Offender is entitled to a modest discount at the lower end of the scale
to reflect the utilitarian value of his pleas of guilty.

353 The Court is entitled to take into account the utilitarian value of the Offender’s
pleas of guilty under s.16A(2)(g) Crimes Act 1914 (Cth). The utilitarian value of
the pleas should be taken into account in addition to any relevant factors (if
they exist) such as remorse or contrition for the offending or the acceptance of
responsibility or willingness to facilitate the course of justice. When sentencing
for Commonwealth offences, it is desirable that any discount given for the
utilitarian value of a guilty plea be specified by the sentencing court: Xiao v R
(2018) 96 NSWLR 1; [2018] NSWCCA 4 at 51 [279]-[280]; Liu v R [2018]
NSWCCA 70 at [9].

354 The Offender’s pleas of guilty occurred at a much later time than Alou and
Alameddine with his pleas being entered only one month before the
commencement of his trial.

355 The offences for which the Offender is to be sentenced are not identical to
those which were charged against him originally. That said, there are three
serious offences charged together with the matter to be taken into account on
sentence for Count 1. The charges to which the Offender has pleaded guilty
are not far distant from those charged against him at the outset.

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356 The calculation of the utilitarian value of a plea of guilty will be determined
largely by the timing of the plea so that the earlier the plea, the greater the
discount: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at 10-11
[32]. Generally, the reason for the delay in the plea is irrelevant because, if it is
not forthcoming, the utilitarian value is reduced: R v Stambolis (2006) 160 A
Crim 510; [2006] NSWCCA 56 at 513-514 [11]; Giac v R [2008] NSWCCA 280
at [27].

357 The Offender’s pleas were entered at a very late stage, long after committal for
trial and almost a month before the scheduled commencement of his trial. The
reason for the delay in pleading guilty is irrelevant because, by delaying his
pleas and entering into plea bargaining, the Offender obtained a forensic
advantage which reduced, to an extent, the number and seriousness of the
charges for which he was to be sentenced. I have regard as well to the
seriousness of the charges for which the Offender is to be sentenced and the
reduced utilitarian benefit flowing from his late pleas of guilty.

358 It is the case that there were some areas of dispute concerning the facts on
sentence as to which the Offender has not had any real success: R v AB
(2011) 59 MVR 356; [2011] NSWCCA 229 at 363-364 [30]-[33].

359 In all the circumstances, I propose to allow a 10% discount for the utilitarian
value of the Offender’s pleas of guilty.

Parity Considerations
360 Alou was sentenced for a single offence expressed in the same terms as Count
1 charged against the Offender: R v Alou (No. 4) at 403 [4]-[5].

361 Alameddine was sentenced for materially different offences under s.101.4(2)
Criminal Code (Cth) and s.51(1A) Firearms Act 1996 (NSW): R v Alameddine
(No. 3) at [5].

362 In sentencing the Offender on Count 1, the Court should keep in mind the
parity principle by reference to the sentence imposed on Alou. I have had
regard to the sentence imposed upon Alou in accordance with the principles in
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49.

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363 A very substantial sentence of imprisonment was imposed in the case of Alou
involving a total term of imprisonment of 44 years with a non-parole period of
33 years. The objective gravity of Alou’s offence was significantly greater than
that of the Offender. Further, there were differences in Alou’s subjective
circumstances in particular given his prior criminal history. Prior to 14 October
2018, the Offender could point, as well, to some difference between Alou and
himself in the areas of contrition and remorse and prospects of rehabilitation.
However, the Offender’s recent change of approach moves his position closer
to that of Alou in these respects.

364 These considerations constitute a foundation for a significantly different


sentence being imposed upon the Offender for Count 1. This is the case even
allowing for the matter to be taken into account on sentence for Count 1, and
the fact that the Offender is to be sentenced for other offences as well.

365 The offences for which Alameddine was sentenced are so different to those
charged against the Offender that the parity principle (by reference to
Alameddine’s sentence) has no role to play in sentencing the Offender.

Factors to be Taken into Account under s.16A Crimes Act 1914 (Cth)
366 I have addressed a number of factors under s.16A Crimes Act 1914 (Cth) in
the course of these sentencing remarks. I will now refer briefly to factors to be
taken into account under s.16A(2).

367 The Court must have regard to the nature and circumstances of the offences:
s.16A(2)(a). For reasons outlined earlier (at [219]-[244]), I am satisfied that the
offence in Count 1 is extremely serious and lies at the higher end of the scale
of seriousness for an offence under ss.11.2(1) and 101.1(1) Criminal Code
(Cth).

368 For reasons expressed earlier (at [245]-[255]), I am satisfied that the offences
contained in Counts 2 and 3 are serious examples of offences under s.102.6(1)
Criminal Code (Cth).

369 The Court must take into account other offences (if any) that are required or
permitted to be taken into account: s.16A(2)(b).

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370 In sentencing the Offender on Count 1, the Court will take into account under
s.16BA Crimes Act 1914 (Cth), the offence of intentionally being a member of a
terrorist organisation, Islamic State, knowing that the organisation was a
terrorist organisation contrary to s.102.3(1) Criminal Code (Cth).

371 Whilst the primary focus of the Court must be on the offence in Count 1, the
Court should give greater weight to the need for personal deterrence which the
admitted offence signifies, and also to the community’s entitlement to extract
retribution in the form of punishment for the admitted offence: R v Lamella
[2014] NSWCCA 122 at [48]. The Court must assess the objective criminality of
the admitted offence, though recognising that it assumes a significantly lower
salience in the sentencing process than the offence for which sentence is to be
passed: R v Dennison [2011] NSWCCA 114 at [47]-[57].

372 I have taken this additional offence into account on sentence on Count 1
applying these principles (see [243]-[244]).

373 I have taken into account the personal circumstances of the victim and any
injury, loss or damage resulting from the offence: s.16A(2)(d) and (e). I have
taken into account, as well, the victim impact statement made by Mrs Cheng on
behalf of the Cheng family (at [332]-[345]): s.16A(2)(ea).

374 With respect to s.16A(2)(f), for reasons set out earlier in these remarks (at
[292]-[331]), I do not find that the Offender had displayed contrition or remorse
for his offences.

375 For reasons explained (at [346]-[359]), I have taken into account the Offender’s
pleas of guilty and will allow a 10% discount for the utilitarian value of the
pleas: s.16A(2)(g).

376 The Court is required to have regard to personal deterrence and general
deterrence: s.16A(2)(j) and (ja). I have taken these factors into account on
sentence. The Offender’s preparedness to move to an extent from his
extremist views has given away to a clear adherence to those views. Specific
or personal deterrence must play a significant role on sentence.

377 A very strong element of general deterrence is required in sentencing for


terrorist offences (see [216] above). This is even more so in a case such as

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this where the terrorist offence has caused death and thus actual harm to the
community. It is of critical importance that courts send a message to persons
who are prepared to assist or carry out terrorist acts that such conduct will not
be tolerated and will be met by severe punishment.

378 General deterrence is a significant factor on sentence for the offences


contained in Counts 2 and 3 as well. It is necessary for sentences for these
offences to operate as a deterrent to others from providing financial support to
terrorist organisations such as Islamic State.

379 The Court must ensure that the Offender is adequately punished for his
offences: s.16A(2)(k). The sentences to be imposed upon the Offender in this
case will constitute adequate and proportionate punishment for his crimes.

380 The Court must have regard to the character, antecedents, age, means and
physical or mental condition of the Offender: s.16A(2)(m). I have referred to
these aspects when considering the Offender’s subjective circumstances
earlier in these remarks (at [256]-[291]). The Offender was 19-20 years old at
the time of the offences and is now 22 years of age. He is not suffering from
mental illness or any relevant physical condition. The Offender had no prior
criminal history before embarking upon the sustained pattern of criminality
reflected in these grave offences.

381 I keep in mind statements of principle concerning the relevance of youth in


sentencing for terrorist offences (see [216] above). Whilst the youth of an
offender is always relevant, it may be given less weight in light of the
seriousness of the offence and the absence of any causal link between an
offender’s age and his criminal conduct: R v Khalid and Ors [2017] NSWSC
1365 at [109], [270]. Like Bellew J in R v Khalid and Ors, I am not satisfied that
there is any causal link here between the Offender’s age and his criminal
conduct.

382 I keep in mind as well the need for courts to ensure adequate sentences are
passed upon young offenders who become involved in terrorist offences to
guard against any thought that the involvement of young offenders in
criminality of this type will ordinarily or necessarily lead to reduced penalties.

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383 The Court must have regard to the Offender’s prospects of rehabilitation:
s.16A(2)(n). Once again, I observe that the guarded, but potentially favourable
assessment of the Offender’s prospects of rehabilitation as at 21 September
2018, has given away to a bleaker assessment which flows from his recent and
renewed adherence to the criminal belief system which explains his present
predicament (see [292]-[331]). The evidence does not assist the Offender on
his prospects of rehabilitation.

384 The Court is required to consider the probable effect that any sentence under
consideration would have on any of the Offender’s family and dependants:
s.16A(2)(p). The Offender is married and there is a young child of the
relationship. The probable effect of a sentence on family or dependants is only
to be taken into account if it is exceptional: R v Zerafa (2013) 235 A Crim R
265; [2013] NSWCCA 222 at 287-288 [93].

385 Courts have observed that sentences of imprisonment will invariably cause a
level of hardship or difficulty to the family of offenders so that this state of
affairs is not exceptional. That said, I have taken into account on sentence the
emotional stress affecting the Offender’s wife and family resulting from the
imposition of sentence as a factor bearing upon the process of instinctive
synthesis in determining sentence. It must be observed that the Offender’s
recent stance has caused upset to his wife which will no doubt impact
adversely upon his son. That is the direct result of the Offender’s actions for
which he alone is responsible.

386 This draws together all of the factors which I have so far considered in these
sentencing remarks.

Other Sentencing Decisions


387 The Crown provided a schedule of comparative cases for terrorist offences.
Only one of these cases involved sentencing for the commission of a terrorist
act which caused the death of a person: R v Alou (No. 4). Other cases have
involved conspiracy, preparation or planning to commit a terrorist act or
offences involving the production or possession of documents connected with a
terrorist act.

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388 Apart from R v Alou (No. 4), the cases contained in the Crown’s schedule were
R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 69 (Whealy J); Lodhi v R
(2007) 179 A Crim R 470; [2007] NSWCCA 360; R v Elomar and Ors (2010)
264 ALR 759; [2010] NSWSC 10 (Whealy J); R v Fattal [2011] VSC 681;
Director of Public Prosecutions (Cth) v Fattal [2013] VSCA 276; Elomar and
Ors v R (2014) 316 ALR 206; [2014] NSWCCA 303; R v Khalid and Ors; R v
Al-Kutobi; R v Kiad [2016] NSWSC 1760; Director of Public Prosecutions (Cth)
v MHK (A Pseudonym) (No 1) and R v Khaja [2018] NSWSC 238.

389 I have considered these sentencing decisions and have taken them into
account in the same way as noted in R v Alou (No. 4) at 436 [283]-[285].

390 The Court was not taken to any comparative cases involving sentencing for
offences of the type contained in Counts 2 and 3. Submissions were made by
reference to the nature of the offences and the available maximum penalty for
those offences.

Section 19AG Crimes Act 1914 (Cth)


391 The offences contained in Counts 1, 2 and 3 are each a “terrorism offence” as
defined in s.3(1) Crimes Act 1914 (Cth) and therefore a “minimum non-parole
offence” within the meaning of s.19AG(1) Crimes Act 1914 (Cth). Accordingly,
if a non-parole period is to be set, the Court is required to fix a non-parole
period for each offence which is at least three-quarters of the head sentence.

392 The Court must fix a single non-parole period of at least three-quarters of the
aggregate of sentences imposed for two or more offences where (as here) all
offences are minimum non-parole offences: s.19AG(2)(b).

393 The operation of s.19AG(2)(b) should not result in a lower head sentence being
imposed in an effort to ensure that a specific minimum term can be found to
apply: R v Alou (No. 4) at 436 [286].

394 To comply with s.19AG, I will fix individual head sentences for each of the three
offences contained in Counts 1, 2 and 3, but a single non-parole period which
will represent three-quarters of the total aggregate sentence.

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Concurrency, Accumulation and Totality


395 The Offender is to be sentenced for three serious offences. The Crown
submitted that a significant degree of accumulation is warranted in order to
reflect the total criminality of the Offender. Senior Counsel for the Offender
accepted that a level of accumulation was appropriate, but submitted that it
ought be more modest than that submitted by the Crown.

396 The criminality involved in Count 1 is different to that contained in Counts 2 and
3. A significant level of accumulation is appropriate as between those two
classes of offences.

397 Counts 2 and 3 are similar in nature, with Count 2 involving the actual provision
of funds which assisted Shadi to leave Australia and travel to the Middle East
to assist Islamic State. As discussed earlier (at [251]-[255]), the offence
contained in Count 3 was not capable of having this effect, although the
Offender did not know it at the time. He fully intended to commit the offence,
but it could not be put into effect as he was subject to an undercover operation
at the time. There ought be a degree of accumulation as between Counts 2
and 3.

398 In sentencing the Offender for several offences, the Court will apply the totality
principle thereby reviewing the total sentence to consider whether the
aggregate term is a just and appropriate measure of the total criminality
involved: s.16A(1) Crimes Act 1914 (Cth); Hili v The Queen (2010) 242 CLR
520; [2010] HCA 45 at 528 [25]; ZA v R [2017] NSWCCA 132 at [68]-[84].

Determining the Appropriate Sentences


399 It is necessary to draw together all the objective and subjective factors and the
sentencing principles to which reference has been made in these lengthy
sentencing remarks.

400 The offence in Count 1 is a very serious offence which led to the death of an
innocent citizen. The Offender’s involvement in this offence occurred over a
number of days, although he committed no criminal act on the day of the
terrorist act itself. In the course of sentencing Alou, I said at R v Alou (No. 4) at
437 [293]:

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“It has been said that terrorists who set out to murder innocent victims are
motivated by a perverted ideology and that they, and their camp followers,
must understand that they are at risk of very severe punishment from
sentencing courts: R v Barot at [45]. The Victorian Court of Appeal has
observed recently that the objective of terrorists is to ‘strike at the heart of our
liberal, democratic and tolerant society’ and that the actions of terrorists are
‘driven by a depraved and evil ideology and mentality which are anathema to
the fundamental values of our nation’ with their actions and underlying intent
being ‘entirely morally bankrupt and totally cowardly’: DPP (Cth) v MHK at
[61]-[62].”
401 Although the Offender’s involvement in Count 1 was less than that of Alou,
these sentiments have application to the Offender as well.

402 The offences contained in Counts 2 and 3 are serious examples of crimes of
this type for reasons explained earlier in these sentencing remarks.

403 I note that the provisions now contained in s.105A.23 Criminal Code (Cth)
apply whereby a continuing detention scheme operates for high-risk terrorist
offenders. It is a requirement of that provision that a sentencing court provide a
warning to a person at the time of sentence of the existence and operation of
that provision and I will do so.

404 The existence of the continuing detention regime after the expiration of a
sentence is not to be taken into account in the imposition of the sentence itself:
Director of Public Prosecutions (Cth) v Besim and Anor (No. 3) (2017) 52 VR
303; [2017] VSCA 180 at [59].

405 In determining the sentences which I am about to announce, I have taken into
account the objective gravity of the offences and the subjective circumstances
of the Offender, together with other factors and principles which I have outlined
in these remarks. I have also applied the 10% discount allowed for the
Offender’s pleas of guilty.

406 For the offence in Count 1 contrary to ss.11.2(1) and 101.1(1) Criminal Code
(Cth), taking into account the offence under s.102.3(1) Criminal Code (Cth) for
the purpose of s.16BA Crimes Act 1914 (Cth), the starting point will involve
imprisonment for 34 years. After application of the 10% discount, there will be a
term of imprisonment (after some rounding) of 30 years.

407 For the offence in Count 2 contrary to s.102.6(1) Criminal Code (Cth), the
starting point will involve imprisonment for 12 years. After application of the

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10% discount, there will be a sentence of imprisonment (after some rounding)


of 10 years and six months.

408 For the offence in Count 3 contrary to s.102.6(1) Criminal Code (Cth), the
starting point will involve imprisonment for 10 years. After application of the
10% discount, there will be a sentence of imprisonment of nine years.

409 There will be three years’ accumulation as between the sentences on Counts 2
and 3. There will be five years’ accumulation as between the sentence on
Count 1 and the remaining sentences. Accordingly, the offences in Counts 2
and 3 will extend the aggregate sentence by a period of eight years.

410 The effective aggregate sentence will involve a head sentence of imprisonment
for 38 years. Applying the three-quarter rule for the purpose of s.19AG Crimes
Act 1914 (Cth), the non-parole period will be 28 years and six months. Quite
apart from the operation of the three-quarter rule, I am satisfied that a period of
28 years and six months represents the minimum period that the Offender
should remain in custody for these offences having regard to the justice of the
case and the various objects of criminal punishment: Power v The Queen
(1974) 131 CLR 623; [1974] HCA 26 at 627-628; Hili v The Queen at 533-534
[40]-[44].

411 The commencement date for the first sentence will be 22 March 2016, the date
of the Offender’s arrest.

412 For the purpose of s.105A.23 Criminal Code (Cth), I warn the Offender that an
application may be made under Division 105A Criminal Code (Cth) for a
continuing detention order requiring him to be detained in a prison after the end
of the sentence for the offences.

413 Milad Atai:

(a) for the offence under s.102.6(1) Criminal Code (Cth) in Count 3, I
sentence you to imprisonment for nine years commencing on 22
March 2016;
(b) for the offence under s.102.6(1) Criminal Code (Cth) in Count 2, I
sentence you to imprisonment for 10 years and six months
commencing on 22 March 2019;
(c) for the offence under ss.11.2(1) and 101.1(1) Criminal Code
(Cth), and taking into account the offence under s.102.3(1)

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Criminal Code (Cth) for the purpose of s.16BA Crimes Act 1914
(Cth), I sentence you to imprisonment for 30 years commencing
on 22 March 2024 and expiring on 21 March 2054;
(d) in accordance with s.19AG Crimes Act 1914 (Cth), I fix a single
non-parole period of 28 years and six months commencing on 22
March 2016 and expiring on 21 September 2044.
414 The provisions of s.16F Crimes Act 1914 (Cth) require me to explain the
purpose and consequence of the fixing of the non-parole period. The sentence
that I have just imposed on you entails a period of imprisonment of not less
than 28 years and six months from the date upon which you were arrested,
being a period expiring on 21 September 2044. After that time, if you are
considered suitable to be released on parole, you will serve the balance of your
sentence in the community. During that period, you will be subject to various
conditions and you will be subject to supervision. If you do not comply with any
of the conditions imposed or the reasonable requirements of your supervisor,
you are liable to be returned to custody for the balance of your sentence.

**********

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