Citation: R v Khaled Khayat; R v Mahmoud Khayat (No 14) [2019] NSWSC 1817
Court: Supreme Court of New South Wales
Date: 17 December 2019
Judge: Adamson J
Background
Two brothers were charged on a single indictment with conspiring, between January and July 2017, to do acts in preparation for a terrorist act or acts, contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cth). The maximum penalty for that offence is life imprisonment. The Crown case was that the conspiracy involved two distinct plots: one to deploy an improvised explosive device (the bomb plot) and another to deploy an improvised chemical dispersal device (the poisonous gas plot).
The elder brother was convicted by a jury on 1 May 2019 after the first trial. The jury in that trial could not reach a unanimous verdict on the younger brother, so it was discharged. A second trial was held, and the younger brother was convicted on 19 September 2019. Both men had been in custody since their arrest on 29 July 2017.
The sentencing proceedings required Adamson J to make findings of fact consistent with each jury's verdict, applying separate evidentiary records from the two trials. The court was required to find adverse facts beyond reasonable doubt and favourable facts on the balance of probabilities.
Legal Issues
- What sentence was appropriate for each offender convicted of conspiracy to do acts in preparation for a terrorist act under ss 11.5(1) and 101.6(1) of the Criminal Code (Cth)?
- What findings of fact could be made consistently with each jury's verdict, applying the correct standard of proof (beyond reasonable doubt for adverse facts; balance of probabilities for favourable facts)?
- How should objective and subjective factors, including the scale of intended harm, the degree to which the conspiracy was advanced before arrest, and each offender's individual circumstances, be weighed in determining the sentence?
- What were the applicable commencement dates for each sentence, given that both offenders had been held in pre-sentence custody since arrest?
Decision
Adamson J characterised both the bomb plot and the poisonous gas plot as significant potential terrorist events, noting that the conspiracy was interrupted only by the offenders' arrest and not by any failure or abandonment on their part. Her Honour found that the intended scale of killing was very large, and that the elder brother's conduct was particularly serious because the bomb plot had progressed to a point of close proximity to actual execution.
The court assessed the conspiracy as falling into a category largely distinct from previously decided terrorism cases, primarily because of the scope of intended destruction in terms of the number of casualties envisaged. Adamson J applied the standard sentencing methodology, weighing objective seriousness, subjective circumstances, and the relevant provisions of the Crimes Act 1914 (Cth), including ss 16A and 19AG.
The elder brother received a heavier sentence, reflecting his greater role and the advanced state of the bomb plot attributable to his conduct. The younger brother received a somewhat lesser sentence, consistent with findings about his individual participation in the conspiracy.
Both offenders were also warned, as required by s 105A.23 of the Criminal Code, that an application for a continuing detention order may be made at the conclusion of their respective sentences.
Orders Made
- The elder brother convicted and sentenced to 40 years' imprisonment, commencing 29 July 2017 and expiring 28 July 2057, with a non-parole period of 30 years expiring 28 July 2047.
- The younger brother convicted and sentenced to 36 years' imprisonment, commencing 29 July 2017 and expiring 28 July 2053, with a non-parole period of 27 years expiring 28 July 2044.
- Both offenders warned that an application for a continuing detention order may be made after the expiry of their sentences.
Key Takeaways
- Conspiracy to do acts in preparation for a terrorist act under ss 11.5(1) and 101.6(1) of the Criminal Code (Cth) carries a maximum of life imprisonment, and the Supreme Court imposed sentences of 40 and 36 years respectively, reflecting the very high objective seriousness of the offending.
- A conspiracy of this kind is treated as having achieved its criminal objective even where it is interrupted by arrest before the intended terrorist act is carried out, provided the conspiracy was real and the preparatory acts were substantially advanced.
- Where offenders are sentenced following separate trials arising from the same conspiracy, the sentencing court must make findings of fact by reference to the evidence adduced in each individual trial, distinguishing between the records only where they materially differ.
- Adverse facts at sentencing must be established beyond reasonable doubt, while facts relied upon in mitigation need only be proved on the balance of probabilities, consistent with The Queen v Olbrich (1999) 199 CLR 270.
- The scale of casualties intended distinguishes this case from earlier terrorism sentencing decisions, and Adamson J explicitly declined to treat prior cases as directly comparable benchmarks, consistent with the principle in Hili v The Queen (2010) 242 CLR 520 that each case turns on its own objective and subjective circumstances.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth), ss 11.5, 100.1, 101.6, 105A.23
- Crimes Act 1914 (Cth), ss 3, 16A, 16E, 16AC, 17A, 19AG, 19AK
- Migration Act 1958 (Cth), ss 501, 501CA
Cases
- Alou v R [2019] NSWCCA 231
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Kristensen v R [2018] NSWCCA 189
- Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14