AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Supreme Court 31 January 2019

R v Bayda; R v Namoa (No 8)

[2019] NSWSC 24

Public order & justice offences
CRIMINAL LAW PARTICULAR OFFENCES OFFENDERS MARRIED UNDER ISLAMIC RITES SENTENCE FOLLOWING GUILTY VERDICTS OBJECTIVE SERIOUSNESS OF CONSPIRACY PROSPECTS OF REHABILITATION

Citation: R v Bayda; R v Namoa (No 8) [2019] NSWSC 24
Court: Supreme Court of New South Wales
Date: 31 January 2019
Judge: Fagan J

Background

Two offenders, both aged 18 at the time of the offending and 21 at sentencing, were convicted after a 20-day jury trial of conspiring with each other to do acts in preparation for a terrorist act, contrary to ss 11.5 and 101.6 of the Criminal Code (Cth). The conspiracy was charged as occurring between 8 December 2015 and 25 January 2016 in Sydney. The offenders had entered into an Islamic marriage ceremony on 30 December 2015, during the charge period.

The Crown's case rested substantially on SMS text messages recovered from one offender's phone after a partial deletion attempt, as well as intercepted telephone communications. Those messages revealed that, on New Year's Eve 2015, the male offender was planning a violent attack on non-Muslims in company with other young men, and that the female offender knew of the plan, agreed it should proceed, and actively encouraged him. The attack was not carried out. Evidence given at the sentence hearing later satisfied the court that the intended act was a street robbery targeting non-Muslims, abandoned when one or more participants called it off.

Both offenders had come to militant Islam in their mid-teenage years. The male offender was introduced to extremist teaching at a bookstore and prayer hall from around age 15. The female offender, raised in a Christian household of Tongan background, converted to Islam at around 14 and described herself as an Islamic fanatic from mid-2015.

  • What level of objective seriousness should be attributed to the conspiracy, given that the precise nature of the intended terrorist act was unclear and no attack ultimately occurred?
  • What weight should be given to the offenders' youth (aged 18 at the time of offending) in mitigation?
  • Whether each offender had genuinely resiled from extremist beliefs, and what bearing that had on prospects of rehabilitation and the structure of the sentence.
  • Whether the mandatory minimum non-parole ratio under s 19AG of the Crimes Act 1914 (Cth) (75% of the head sentence) applied, and whether determinate sentences were appropriate rather than indefinite terms.
  • How cooperation with law enforcement authorities and any offer of future assistance should affect the sentence for the male offender.
  • Whether Namoa's sentence should be accumulated on a separate sentence she was already serving for refusing to answer questions before the Australian Crime Commission.

Decision

Fagan J found the offending fell at a relatively low level of objective seriousness for a terrorism preparation conspiracy, with significant mitigating circumstances warranting sentences of moderate, fixed duration. The conspiracy was limited in scope: no specific terrorist act had been resolved upon, no attack was carried out, and the planned act (a street robbery on non-Muslims) was comparatively less grave than many terrorism offences of this type. Nevertheless, the court emphasised that general deterrence carries particular weight in terrorist offending motivated by jihadist ideology, given its prevalence.

The court undertook a detailed assessment of each offender's background, the radicalisation process, and the credibility of their claimed abandonment of extremist beliefs. Youth was a significant mitigating factor for both, given their ages at the time of the conspiracy. However, the court was cautious about accepting, without reservation, assertions that each offender had fully and sincerely renounced jihadist ideology, treating prospects of rehabilitation as meaningful but not yet established beyond doubt.

For the male offender, a base head sentence was reduced to account for his cooperation with law enforcement authorities and his undertaking to provide future assistance. His sentence commenced from the date of his arrest, with the full remand period counting toward the sentence. For the female offender, a partial accumulation of one month was imposed to reflect a distinct and additional element of criminality arising from her refusal to answer questions before the Australian Crime Commission, even though that refusal related to the same conspiracy.

Both sentences were structured as fixed terms (not indefinite detention), with non-parole periods fixed at 75% of the head sentence in accordance with the mandatory statutory ratio under s 19AG of the Crimes Act 1914 (Cth). Both offenders were also warned, pursuant to s 105A.23(1) of the Criminal Code (Cth), that an application for a continuing detention order may be made upon completion of their sentences.

Orders Made

Sameh Bayda:
- Sentenced to 4 years' imprisonment commencing 25 January 2016 and expiring 24 January 2020.
- Non-parole period of 3 years fixed, commencing 25 January 2016 and expiring 24 January 2019; eligible for parole from 24 January 2019.
- Warned pursuant to s 105A.23(1) of the Criminal Code (Cth) that an application for a continuing detention order may be made.

Alo-Bridget Namoa:
- Sentenced to 3 years and 9 months' imprisonment commencing 23 March 2016 and expiring 22 December 2019.
- Non-parole period of 2 years and 10 months fixed, commencing 23 March 2016 and expiring 22 January 2019; eligible for parole from 22 January 2019.
- Warned pursuant to s 105A.23(1) of the Criminal Code (Cth) that an application for a continuing detention order may be made.

Key Takeaways

  • A conspiracy to do acts in preparation for a terrorist act under ss 11.5 and 101.6 of the Criminal Code (Cth) carries a maximum of life imprisonment, but the court found that relatively low objective seriousness and significant mitigating factors can justify moderate fixed-term sentences, even in jihadist terrorism cases.
  • Where the precise nature of the intended terrorist act remains unresolved, sentencing courts are not limited to the jury's findings; evidence given at sentence proceedings can be used to make more specific factual findings about the nature and scope of the conspiracy.
  • The mandatory non-parole ratio of 75% under s 19AG of the Crimes Act 1914 (Cth) applies to terrorism preparation offences, significantly constraining judicial discretion in setting the parole eligibility date.
  • Youth at the time of offending operates as a meaningful mitigating factor in terrorism sentencing, though courts will scrutinise with care any claims by young offenders to have genuinely abandoned extremist ideology when assessing rehabilitation prospects.
  • Separate and distinct criminal conduct occurring in connection with, but legally separate from, the primary terrorism offence (here, refusing to answer questions before the Australian Crime Commission) may warrant a degree of sentence accumulation even where it arises from the same factual background.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 100.1, 101.6, 11.5, 105A.23
- Crimes Act 1914 (Cth), s 19AG
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1998 (NSW)
- Weapons Prohibition Act 1998 (NSW)

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Fattal v The Queen [2013] VSCA 276
- KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
- R v Abbas [2018] VSC 553
- R v Alameddine (No 3) [2018] NSWSC 681
- R v Alou (No 4) [2018] NSWSC 221
- R v Atai (No 2) [2018] NSWSC 1797
- R v HG [2018] NSWSC 1849
- R v Khaja (No 5) [2018] NSWSC 238
- R v Khalid [2017] NSWSC 1365
- R v Lohdi [2006] NSWCCA 360
- R v XX [2017] NSWCCA 90
- RJT v R [2012] NSWCCA 280
- Z v R