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Supreme Court 7 June 2019

R v Zahab

[2019] NSWSC 629

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW TERRORISM OFFENCES SENTENCE SERIOUSNESS OF OFFENDING TERRORISM OFFENCES SENTENCE

Citation: R v Zahab [2019] NSWSC 629
Court: Supreme Court of New South Wales
Date: 7 June 2019
Judge: Bellew J

Background

The offender, a man residing in Young, New South Wales, pleaded guilty to two offences. The first was intentionally providing support or resources to Islamic State between December 2014 and February 2017, contrary to s 102.7(1) of the Criminal Code 1995 (Cth). The second was failing to comply with an order requiring him to disclose passwords to encrypted devices, contrary to s 3LA(5) of the Crimes Act 1914 (Cth).

The support the offender provided consisted of researching and developing a laser warning receiver and a rocket guidance method for use by Islamic State. The offender claimed that during the relevant period he believed Islamic State was a "force of good." At the time of arrest, he said he refused to provide device passwords out of anger.

Critically, the offender did not travel overseas to fight or train with any extremist group. He conducted his offending entirely from within Australia, using technical expertise to contribute to Islamic State's weapons research and development activities.

  • What were the applicable sentencing principles for an offence of intentionally supporting a terrorist organisation under s 102.7(1) of the Criminal Code?
  • How should the objective seriousness of the offending be assessed, having regard to the nature, duration, and sophistication of the conduct?
  • Whether the fact that the offender did not travel overseas to participate in a foreign conflict constituted a mitigating factor.
  • What weight should be given to the offender's claimed remorse and prospects for rehabilitation?
  • How should the offence of failing to comply with a password disclosure order be sentenced?

Decision

Bellew J applied the general sentencing principles applicable to terrorism offences, holding that they applied with equal force to an offence under s 102.7(1), even though that provision does not require the actual commission or preparation of a terrorist act. The primary sentencing considerations were community protection, punishment, denunciation, and deterrence. His Honour observed that subjective mitigating factors, including rehabilitation prospects, carry reduced weight in the terrorism context.

The court assessed the offending as serious. Relevant factors included the significant duration of the conduct (over two years), the degree of planning and technical sophistication involved in developing weapons-related research for Islamic State, and the ideological motivation underpinning the offending. His Honour acknowledged that the offender had not travelled overseas to fight or train, but declined to treat that as a meaningful mitigating factor. The Explanatory Memorandum to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth), which introduced the offence, made clear that the provision was intended to capture a wide range of support activities, not merely those involving foreign travel.

On the question of remorse and rehabilitation, the court had the benefit of a psychologist's report and testimonials from 18 character witnesses, as well as the evidence of a Muslim prison chaplain. His Honour gave some weight to these matters but noted significant uncertainty about the depth of the offender's renunciation of his previously held extremist views. Where an offender has not clearly resiled from such views, the court held that the consideration of community protection assumes even greater importance.

For the password disclosure offence, the court treated it as a separate and distinct matter. The offender's explanation that he acted out of anger was noted, but the offence frustrated the police investigation by denying access to encrypted information on his devices.

Orders Made

  • Count 2 (failing to comply with password disclosure order): Convicted and sentenced to 3 months imprisonment, commencing 28 February 2017 and expiring 27 May 2017.
  • Count 1 (intentionally providing support or resources to Islamic State): Convicted and sentenced to 9 years imprisonment, commencing 28 March 2017 and expiring 27 March 2026.
  • Non-parole period of 6 years and 9 months specified, commencing 28 March 2017 and expiring 27 December 2023.
  • The offender will be eligible for parole on 28 December 2023.
  • The court issued the statutory explanation required by s 16F of the Crimes Act 1914 (Cth) regarding the conditions and possible revocation of any parole order.
  • A warning was issued pursuant to s 105A.23 of the Criminal Code 1995 (Cth) that an application for a continuing detention order may be made at the end of the sentence.

Key Takeaways

  • The sentencing principles developed for terrorism offences generally, including the primacy of community protection, denunciation, and deterrence, apply with equal force to the offence of intentionally providing support or resources to a terrorist organisation under s 102.7(1) of the Criminal Code, even where no terrorist act was committed or directly prepared.
  • Declining to travel overseas to participate in a foreign conflict does not, of itself, constitute a mitigating factor for an offence of this kind. The provision was enacted specifically to capture a broad spectrum of support activities, including those conducted entirely within Australia.
  • Where an offender has not clearly renounced previously held extremist or radical views, the Supreme Court placed heightened emphasis on community protection as a sentencing consideration, reducing the effective weight given to rehabilitation and remorse.
  • Technical sophistication, duration of offending, and the ideological motivation underlying the conduct are all factors that increase the objective seriousness of terrorism support offending.
  • Failing to comply with an order to disclose passwords to encrypted devices is treated as a distinct offence warranting its own separate sentence, particularly where the non-compliance frustrates a police investigation.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 102.7(1), 105A.23
- Crimes Act 1914 (Cth), ss 3LA(2), 3LA(5), 16A, 16F
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth)

Cases:
- R v Khalid & ors [2017] NSWSC 1365
- R v Barot [2007] EWCA Crim 1119; [2007] Crim LR 741
- R v Atik [2007] VSC 299
- R v Kahar [2016] EWCA 568
- R v Khyam and ors [2008] EWCA Crim 1612
- R v Lodhi (2006) 199 FLR 364; [2006] NSWSC 691
- R v Martin (1999) 1 Cr App R 77
- Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1