AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Supreme Court 29 March 2019

R v Azari (No 12)

[2019] NSWSC 314

Public order & justice offences
CRIMINAL LAW SENTENCE AFTER TRIAL TERRORISM OFFENCES CRIMINAL CODE (CTH), S 101.6(1)

Citation: R v Azari (No 12) [2019] NSWSC 314
Court: Supreme Court of New South Wales
Date: 29 March 2019
Judge: N Adams J

Background

The offender, an Australian citizen born in Afghanistan, was sentenced for two terrorism offences committed in Sydney in 2014 in connection with his support for Islamic State (a declared terrorist organisation). He had grown up in Australia and, by 2012, was engaged in street preaching in Parramatta, where he came into contact with Mohammad Ali Baryalei, a senior Australian member of Islamic State who subsequently travelled to Syria.

The offender became part of a Sydney-based group of men who shared radical Islamist views, collectively referred to as a "shura" (an Arabic term for a consultative council). Members of the group met regularly, collected and transferred funds to support Islamic State fighters, and maintained contact with Baryalei in Syria. The offender had attempted to travel to Syria in 2013 to fight with Islamic State but was prevented from doing so.

Two offences came before the court for sentencing. First, the offender had pleaded guilty in 2015 to attempting to make approximately USD 9,000 available to Islamic State between July and September 2014 (the funding offence). Second, following a jury trial concluding in November 2018, he was convicted of doing an act in preparation for, or planning, a terrorist act on 15 September 2014, namely participating in a telephone conversation with Baryalei in which a plan for a domestic terrorist attack in Australia was discussed (the planning offence). Two further funding matters were also taken into account on sentence.

  • What were the appropriate facts upon which to sentence for both offences, applying the principles from R v Isaacs and The Queen v Olbrich?
  • What was the objective seriousness of each offence, having regard to the maximum penalties and the nature of the conduct?
  • What weight should be given to the offender's personal circumstances, including age, background, and any prospects of rehabilitation?
  • What discount, if any, applied to the funding offence by reason of the guilty plea?
  • How should the principle of totality be applied to arrive at an effective aggregate sentence for the two offences?
  • Whether, and to what extent, the non-parole period was governed by the mandatory three-quarter rule under s 19AG of the Crimes Act 1914 (Cth)?

Decision

Adams J found the facts by reference to all evidence adduced at trial, including surveillance material, lawfully intercepted telephone calls, expert testimony on Middle Eastern politics, police evidence, civilian witness evidence, and formal admissions made by the offender under s 184 of the Evidence Act 1995 (NSW). The offender had also given evidence at trial and was cross-examined. Consistent with Olbrich, facts adverse to the offender were required to be established beyond reasonable doubt, while facts in his favour needed only to be established on the balance of probabilities.

The planning offence, carrying a maximum of life imprisonment, was treated as the principal offence. The court found that on 15 September 2014 the offender participated in a telephone conversation with Baryalei in which terrorist acts to be committed in Australia were planned. The call took place against the backdrop of the offender's sustained engagement with the shura, his attempted travel to Syria, and his active role in fundraising for Islamic State. These circumstances placed the offence at a significant level of objective seriousness.

For the funding offence, which carries a maximum penalty of 25 years imprisonment, the offender had pleaded guilty and was entitled to a 25 percent discount on sentence. The court also took into account the two additional funding matters under s 16BA of the Crimes Act 1914 (Cth), which related to separate transfers of AUD 6,000 arranged in August 2014 to support Islamic State fighters.

Applying the sentencing methodology endorsed in Markarian v The Queen and Muldrock v The Queen, Adams J identified and weighed all relevant factors before arriving at individual sentences. The principle of totality then required a two-year period of concurrence between the two sentences to avoid a disproportionately crushing combined term.

Orders Made

  • For the planning offence (s 101.6(1) of the Criminal Code (Cth)): imprisonment for 12 years, commencing 18 September 2014.
  • For the funding offence (ss 11.1(1) and 102.6(1) of the Criminal Code (Cth)), taking into account two further offences under s 102.6(1) pursuant to s 16BA of the Crimes Act 1914 (Cth), and after a 25% guilty plea discount: imprisonment for 8 years, commencing 18 September 2024.
  • A two-year period of concurrence applied between the two sentences.
  • Effective aggregate head sentence: 18 years imprisonment, expiring 17 September 2032.
  • Single non-parole period fixed under s 19AG of the Crimes Act 1914 (Cth) at 13 years and 6 months, commencing 18 September 2014 and expiring 17 March 2028.
  • The offender was warned pursuant to s 105A.23 of the Criminal Code (Cth) that an application for a continuing detention order may be made after the expiry of the planning offence sentence.

Key Takeaways

  • An act in preparation for, or planning, a terrorist act under s 101.6(1) of the Criminal Code (Cth) carries a maximum penalty of life imprisonment, and participation in a telephone conversation in which a domestic terrorist attack is planned can constitute such an offence.
  • A 25 percent discount on sentence was applied for the early guilty plea to the funding offence; no such discount arose for the planning offence, which proceeded to verdict after a contested trial.
  • Under s 19AG of the Crimes Act 1914 (Cth), the mandatory three-quarter rule applied to fix the non-parole period for federal terrorism offences, resulting in a non-parole period of 13 years and 6 months against an 18-year head sentence.
  • The principle of totality required a two-year period of concurrence between the consecutive sentences to ensure the combined term was not disproportionate to the overall criminality.
  • Where no agreed statement of facts is tendered on sentence, the sentencing court may determine the relevant facts by reference to the evidence adduced at trial, provided the facts found are consistent with the jury's verdict and the applicable standard of proof for facts adverse to the offender is satisfied beyond reasonable doubt.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.1(1), 101.6(1), 102.6(1), 105A.23
- Crimes Act 1914 (Cth), ss 16A, 16BA, 17A, 19AG
- Evidence Act 1995 (NSW), ss 184

Cases
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Isaacs (1997) 41 NSWLR 374
- Elomar v Regina [2014] NSWCCA 303; (2014) 316 ALR 206
- R v Elomar (2010) 264 ALR 759
- Benbrika v R (2010) 29 VR 593; [2010] VSCA 281
- DPP (Cth) v Besim [2017] VSCA 158
- R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691
- R v Lodhi [2007] NSWCCA 360
- Postiglione v The Queen (1997) 189 CLR 295
- Johnson v The Queen (2004) 78 ALJR 616
- R v Al-Kutobi; R v Kiad [2016] NSWSC 1760
- *R v Khalid and Ors