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Supreme Court 2 March 2018

R v Khaja (No 5)

[2018] NSWSC 238

Public order & justice offences
CRIMINAL LAW PARTICULAR OFFENCES PLEA OF GUILTY ENTERED SENTENCE RELEVANT FACTORS PROSPECTS OF REHABILITATION

Citation: R v Khaja (No 5) [2018] NSWSC 238
Court: Supreme Court of New South Wales
Date: 2 March 2018
Judge(s): Fagan J

Background

The offender, then aged 18, pleaded guilty on what was to be the first day of his trial to a terrorism planning offence under s 101.6(1) of the Criminal Code (Cth). Between 11 and 18 May 2016, he conducted reconnaissance of the Timor Army Barracks at Dundas and court buildings in Parramatta, attempted to procure weapons, sought a flag of the "khilafa", and requested guidance from a contact he believed shared his views. Those contacts were in fact undercover police operatives. He told them he intended to kill as many non-Muslims as possible before being killed himself, contemplating around 50 deaths.

The offender's stated purposes were to kill unbelievers, intimidate the Australian public, and create conditions for the country to be brought under Islamic law. He also admitted to a second offence: on 27 February 2016, he had attempted to fly to Thailand as the first step in travelling to Syria to join ISIS and participate in armed combat. That offence, contrary to s 119.4(1) of the Criminal Code (Cth), was taken into account under s 16BA of the Crimes Act 1914 (Cth) rather than being separately charged and sentenced.

The offender's radicalisation had a traceable history. From early 2013, while still in high school, he became preoccupied with an extreme interpretation of Islam. In late 2013 he had attempted to travel to Syria before being dissuaded by his parents. Counter-terrorism police interviewed him in mid-2015 but concluded at that time that he did not hold extremist views. He was arrested on 17 May 2016.

  • What sentence was appropriate for a guilty plea to a terrorism planning offence under s 101.6(1) of the Criminal Code (Cth), which carries a maximum penalty of life imprisonment?
  • How should the admitted foreign incursion offence under s 119.4(1) be treated under the s 16BA "take into account" mechanism, and what effect, if any, should it have on the sentence for the primary offence?
  • What weight, if any, should be given to a psychiatrist's report tendered on behalf of the offender where its contents had not been verified by the offender giving evidence, and where it contained statements attributed to him?
  • What weight should prospects of rehabilitation carry for a terrorism offender whose fanatical religious views underpinned his offending and where no satisfactory evidence of genuine reconsideration of those views was presented?

Decision

Fagan J found that what the offender planned and prepared for would clearly have constituted a terrorist act within the meaning of s 100.1 of the Criminal Code, involving intended deaths, religious motivation, and an intention to intimidate the public. The offence was complete even though no attack ultimately occurred and even though the offender had not yet settled on a final target.

On the psychiatrist's report, the Court was not prepared to act upon statements attributed to the offender within it, because the offender had not given evidence to verify those statements and they had not been tested. The Court therefore found no satisfactory evidence that the offender had genuinely reconsidered his extremist religious views. Rehabilitation accordingly carried little weight as a mitigating factor.

Fagan J considered the usual sentencing objectives of general and specific deterrence, retribution, and denunciation to be of particular importance in terrorism matters. The offender's youth and guilty plea (entered on the day of trial) were acknowledged as mitigating factors, but the plea was given limited discount given the timing and the strength of the prosecution case.

On the s 16BA foreign incursion offence, the Court found that both offences arose from the same religious fanaticism within approximately three months of each other. The terrorism planning offence was by far the more serious, and its criminality was found to comprehend that of the foreign incursion offence to a degree that did not justify increasing the sentence beyond what it would otherwise have been.

Orders Made

  • The offender was sentenced to 19 years' imprisonment for the terrorism planning offence, commencing 17 May 2016 and expiring 16 May 2035.
  • A non-parole period of 14 years and 3 months was fixed, commencing 17 May 2016 and expiring 16 August 2030, with eligibility for parole from that date.
  • The offender was warned pursuant to s 105A.23 of the Criminal Code (Cth) that an application may be made for an order requiring his continued detention after the completion of his sentence.

Key Takeaways

  • A terrorism planning offence under s 101.6(1) of the Criminal Code (Cth) is complete once preparatory acts are performed with the requisite intention, regardless of whether a final decision on a specific attack has been made or whether any attack actually occurs.
  • Where a psychiatrist's report tendered at sentence contains statements attributed to the offender but he does not give evidence to verify them, a sentencing court may decline to treat those statements as reliable or established.
  • Prospects of rehabilitation carry reduced weight in terrorism sentencing where no satisfactory evidence exists that an offender has genuinely reconsidered the fanatical religious views that motivated the offending.
  • Under the s 16BA "take into account" mechanism, where a secondary offence arises from the same motivation as the primary offence and the primary offence is substantially more serious, it may not be necessary to increase the primary sentence above what would have been imposed without the secondary offence.
  • A guilty plea entered on the first day of trial attracts only a limited discount, particularly where the prosecution case was strong.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 100.1, 101.6(1), 105A.23, 119.4(1)
- Crimes Act 1914 (Cth), s 16BA

Cases
- Benbrika v The Queen [2010] VSCA 281
- DPP (Cth) v Besim [2017] VSCA 158
- DPP (Cth) v MHK (a Pseudonym) [2017] VSCA 157
- Elomar v R [2014] NSWCCA 303
- Fattal v The Queen [2013] VSCA 276
- KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
- Le v R [2017] NSWCCA 26
- R v Al-Kutobi [2016] NSWSC 1760
- R v Alou [2018] NSWSC 221
- R v Baladjam (Supreme Court (NSW), Whealy J, 7 April 2009, unreported)
- R v Barot [2007] EWCA Crim 1119
- R v Ghazzawy [2017] NSWSC 474
- R v H (1980) 3 A Crim R 53
- R v House [2005] NSWCCA 88
- R v Khalid [2017] NSWSC 1365
- R v Lohdi [2006] NSWCCA 360
- R v Mulahalilovic [2009] NSWSC 1010
- R v Qutami [2001] NSWCCA 353
- R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142
- R v Sharrouf [2009] NSWSC 1002