Citation: Regina (CTH) v Ahmad Saiyer Naizmand [2017] NSWDC 4
Court: District Court of New South Wales
Date: 2 February 2017
Judge: Judge AC Scotting
Background
The offender, a 22-year-old married man who had been working as a gyprocker, pleaded guilty in the Local Court to five counts of contravening a control order under the Criminal Code Act 1995 (Cth). The control order had been imposed by the Federal Circuit Court in March 2015 following serious security concerns, including that the offender was associated with a group supporting Islamic State and had been mentioned in intercepted calls concerning a potential terrorist act in Australia.
The control order contained strict conditions on the offender's use of telecommunications and internet services. One condition prohibited him from accessing propaganda or promotional material relating to terrorist organisations, including Islamic State. Despite being permitted limited use of an iPhone under a conditional approval, the offender repeatedly accessed jihadist videos on YouTube between January and March 2016.
The five contraventions each involved the offender watching videos consisting of slideshows of violent imagery accompanied by jihadist nasheeds (chant-based Arabic poetry). The content depicted and described suicide attacks, bombings, and martyrdom, and constituted propaganda or promotional material for Islamic State or its affiliates.
Legal Issues
- What is the appropriate sentence for five counts of breaching a control order under s 104.27 of the Criminal Code Act 1995 (Cth)?
- How should the principles of parity and totality apply to a series of related but distinct contraventions?
- What weight should be given to mitigating factors such as guilty plea, youth, remorse, and the onerous conditions of the offender's custody?
- How should general and specific deterrence be balanced against prospects of rehabilitation in the context of counter-terrorism offending?
Decision
The court assessed the objective seriousness of the offences as falling in the low to mid range, noting that the contraventions involved viewing online videos rather than participating in any terrorist activity directly. However, Judge Scotting emphasised that control orders exist precisely to prevent radicalisation and the escalation of risk, and that deliberately breaching conditions prohibiting access to terrorist propaganda undermines the purpose of the legislative scheme.
The court considered a range of mitigating factors, including the offender's early guilty plea, his youth (22 years old at the time of sentencing), expressions of remorse and contrition, and the particularly onerous conditions under which he had been held in custody. Against these, the court weighed the need for both specific and general deterrence, noting that general deterrence carries significant weight in terrorism-related offending because of the serious threat such conduct poses to community safety.
Applying the principles of totality and parity, including reference to a comparable case involving another offender subject to a control order (R v MO), the court structured the sentences so that they were partly concurrent and partly cumulative. This approach was intended to reflect the seriousness of each individual contravention without producing an aggregate sentence that was disproportionate to the overall criminality.
The court imposed a single non-parole period of three years, reflecting its assessment that the offender retained genuine prospects of rehabilitation if he engaged appropriately with programs available during his custodial term.
Orders Made
- Contravention 1: 9 months imprisonment, commencing 29 February 2016, expiring 28 November 2016.
- Contravention 2: 12 months imprisonment, commencing 29 August 2016, expiring 28 August 2017.
- Contravention 3: 12 months imprisonment, commencing 29 May 2017, expiring 28 May 2018.
- Contravention 4: 15 months imprisonment, commencing 28 February 2018, expiring 27 May 2019.
- Contravention 5: 15 months imprisonment, commencing 29 November 2018, expiring 28 February 2020.
- A single non-parole period of 3 years fixed from 29 February 2016, expiring 28 February 2019.
(Note: The judgment was amended on 3 May 2017 to impose individual terms of imprisonment for each offence, correcting the originally imposed single head sentence, pursuant to ss 19AHA(3) and 19AHA(5) of the Crimes Act 1914 (Cth).)
Key Takeaways
- The District Court treated deliberate breach of a counter-terrorism control order by accessing jihadist propaganda as a matter of genuine seriousness, even where the offending did not involve direct participation in violence, because such conduct undermines the protective purpose of the control order regime.
- General deterrence carries substantial weight in control order breach offences given the community interest in preventing radicalisation and terrorist activity.
- Mitigating factors including youth, early guilty plea, remorse, and onerous custodial conditions were recognised, but did not displace the need for a meaningful custodial sentence reflecting the counter-terrorism context.
- Under the totality principle, sentences for multiple related contraventions must be structured to avoid a disproportionate aggregate outcome; the court applied partly concurrent, partly cumulative terms to achieve this balance.
- A single non-parole period may be fixed across multiple federal offences under ss 19AB and 19AG of the Crimes Act 1914 (Cth), with the length of that period informed by the offender's prospects of rehabilitation alongside the seriousness of the overall conduct.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 104.1, 104.4, 104.27
- Crimes Act 1914 (Cth), ss 16A, 17A(1), 19AB, 19AG, 19AHA(3), 19AHA(5)
- Criminal Code (Terrorist Organisation – Islamic State) Regulation 2014 (Cth)
Cases:
- R v El Karhani (1990) 21 NSWLR 370
- Johnson v The Queen (2004) 78 ALJR 161
- R v Touma [2008] NSWSC 1475
- R v MO (No 1) [2016] NSWDC 144
- R v MO (No 2) [2016] NSWDC 145
- R v Martin (1999) Cr App R 477
- Cameron v The Queen (2002) 209 CLR 399
- Danial v R [2008] NSWCCA 15
- Lee v R [2012] NSWCCA 123