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Supreme Court 15 February 2010

Regina (C'Wealth) v Elomar & Ors

[2010] NSWSC 10

Public order & justice offences
CRIMINAL LAW SENTENCE AFTER TRIAL COMMONWEALTH OFFENCE TERRORISM OFFENCE PRINCIPLES APPLICABLE TO SENTENCING OBJECTIVELY GRAVE OFFENCE

Citation: Regina (C'Wealth) v Elomar & Ors [2010] NSWSC 10
Court: Supreme Court of New South Wales
Date: 15 February 2010
Judge(s): Whealy J

Background

Five men were arrested in late 2005 and charged with conspiring to do acts in preparation for a terrorist act or acts, an offence under the Criminal Code Act (Cth) carrying a maximum penalty of life imprisonment. They were originally among nine co-accused, but three others pleaded guilty to lesser charges before the jury trial began, and a fourth was separately dealt with on fitness grounds. The five remaining accused maintained not guilty pleas throughout.

An eleven-month jury trial commenced in November 2008. On 16 October 2009, the jury returned guilty verdicts against all five men on the single count in the indictment. Sentencing submissions were heard in December 2009, with sentences pronounced on 15 February 2010.

The conspiracy was found to have operated at least from January or February 2005 until the men's arrests on 8 November 2005. It involved the acquisition of large quantities of assault-rifle ammunition, attempts to procure laboratory equipment and chemicals suitable for making explosives, attendance at remote camping trips under false names, and an escalating concealment operation in the final weeks before arrest. Each offender held extensive extremist and instructional material in common with the others, reflecting a shared commitment to violent jihad in Australia aimed at coercing the Australian Government to change its foreign policy.

Legal Issues

  • What principles govern sentencing for a Commonwealth terrorism conspiracy offence, particularly regarding the balance between punishment, deterrence, denunciation, and incapacitation?
  • How should the objective seriousness of a preparatory terrorism conspiracy be assessed where no specific target was identified and no terrorist act was actually carried out?
  • To what extent does the organisational character of a conspiracy (as distinct from the individual acts of each participant) inform the assessment of each offender's criminality?
  • Whether a hierarchy of criminal responsibility could be established among the five offenders, and whether such a hierarchy should produce significant differentiation in sentence.
  • Whether parity principles could be applied by analogy to the sentences imposed on co-accused who had pleaded guilty to separate, lesser charges before the trial commenced.
  • What weight should be given to conditions of "AA" (maximum security) classification custody, absence of remorse, and poor rehabilitation prospects in fixing individual sentences?
  • Whether one offender (Jamal) had withdrawn from the conspiracy before its end, and whether he had abandoned his extremist convictions.

Decision

Objective seriousness and the nature of the conspiracy

Whealy J found the conspiracy to be of the most serious kind, falling only marginally short of the worst-case category. The Crown did not press for life sentences, accepting that the evidence could not establish beyond reasonable doubt a direct intention to kill. The court accepted that submission, finding instead that each offender intended, at minimum, serious damage to property, with a real risk of death or serious injury to civilians. The absence of a confirmed target or finalised operational plan was taken into account, but the court found that prompt police intervention had disrupted a well-advanced enterprise that, absent that intervention, could have come to fruition in early 2006.

The conspiracy as an aggravating organisational factor

The court emphasised that the criminality of a conspiracy exceeds the sum of each participant's individual acts. A multi-person enterprise of this kind is harder to detect, harder to disrupt, more resourceful, and more likely to succeed than any individual's isolated efforts. Whealy J drew an analogy to a "Hydra": when one avenue was closed off (such as the seizure of ammunition), another participant moved in to fill the gap. A substantial quantity of materials was never recovered, remaining available for future use.

Hierarchy, individual roles, and differentiation

The court declined to place heavy analytical weight on a strict hierarchy. While the most senior offender plainly had a co-ordinating role, each of the five men was found to be centrally committed to the enterprise and to have performed acts that were important to its furtherance. Whealy J found that gradations in culpability existed but were not significant. The two offenders whose roles were characterised as more of a "doer" than a co-ordinator received sentences two years shorter than the most senior offender. The youngest offender, who joined the conspiracy later and acted at others' behest, received a lesser sentence reflecting his lower position in the hierarchy, though the court found the difference was not dramatic.

Jamal's alleged withdrawal

Whealy J rejected the submission that Jamal had consciously withdrawn from the conspiracy after 13 October 2005. The court found it was not satisfied even on the balance of probabilities that withdrawal had occurred. Jamal gave no evidence, his fingerprints and DNA were found in vehicles used in the concealment operation, and his subsequent conduct and statements were inconsistent with a genuine moral departure from the enterprise.

Remorse, rehabilitation, and custodial conditions

None of the five offenders demonstrated remorse, contrition, or any renunciation of the extremist convictions that motivated the conspiracy. Whealy J found prospects of rehabilitation to be poor for all five, though non-parole periods were nonetheless set at the statutory minimum of three-quarters of the head sentence to preserve the opportunity for rehabilitation. The court took into account the onerous conditions of "AA" classification custody, finding them to be a relevant but not mathematically quantifiable factor that diminished in significance when weighed against the gravity of the offence.

Parity by analogy

Whealy J accepted that strict parity principles apply only as between co-offenders but that sentences imposed on participants in the same criminal enterprise who had separately pleaded guilty could be examined by analogy for consistency. The court found the comparison of limited utility because the conspiracy conviction was substantially more serious than the individual charges to which the other participants had pleaded, and because those participants had received discounts reflecting remorse and assistance that were absent here.

Orders Made

  • Mohamed Ali Elomar: sentenced to 28 years' imprisonment commencing 8 November 2005, expiring 7 November 2033; non-parole period of 21 years, expiring 7 November 2026.
  • Khaled Cheikho: sentenced to 27 years' imprisonment commencing 8 November 2005, expiring 7 November 2032; non-parole period of 20 years and 3 months, expiring 7 February 2026.
  • Abdul Rakib Hasan: sentenced to 26 years' imprisonment commencing 8 November 2005, expiring 7 November 2031; non-parole period of 19 years and 6 months, expiring 7 May 2025.
  • Moustafa Cheikho: sentenced to 26 years' imprisonment commencing 8 November 2005, expiring 7 November 2031; non-parole period of 19 years and 6 months, expiring 7 May 2025.
  • Mohammed Omar Jamal: sentenced to 23 years' imprisonment commencing 21 December 2005, expiring 20 December 2028; non-parole period of 17 years and 3 months, expiring 20 March 2023.

Key Takeaways

  • A conspiracy to do acts in preparation for a terrorist act is assessed for objective seriousness by reference to the criminal enterprise as a whole, not merely by tallying each offender's individual acts; the organisational character of the conspiracy is itself a significant aggravating feature.
  • Where no direct intention to kill is established but the contemplated acts would foreseeably risk death or serious injury, the offence falls just short of the most serious category and may still attract sentences approaching, though not reaching, life imprisonment.
  • Parity principles arising from co-accused sentencing decisions apply only strictly between persons sentenced as co-offenders; where former co-accused resolved their matters through separate guilty pleas, the resulting sentences may guide but do not bind the sentencing court, particularly where the remaining offences are more serious in character.
  • Absence of remorse, absence of contrition, and an ongoing commitment to the extremist ideology that motivated the offence are weighty factors in favour of incapacitation, and the court found that the community's need for protection must be prominently reflected in the sentence.
  • Under s 19AG of the Crimes Act 1914 (Cth), a non-parole period for offences of this kind must be fixed at no less than three-quarters of the head sentence; the Supreme Court set all five non-parole periods at that statutory minimum, preserving the theoretical opportunity for rehabilitation despite finding its prospects poor in each case.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated