Citation: R v Dirani (Sentence) [2023] NSWSC 1664
Court: Supreme Court of New South Wales
Date: 15 December 2023
Judge: Sweeney J
Background
Following a jury trial, the offender was convicted of conspiring with Raban Alou and others to do acts in preparation for a terrorist act between August and October 2015. The underlying act was the murder of police employee Curtis Cheng, shot outside the Parramatta Police Centre on 2 October 2015 by a teenager, Farhad Mohammad. Mohammad had been handed a firearm by Raban Alou at the Parramatta Mosque immediately before the shooting, and was killed by police at the scene.
The offender did not know Farhad Mohammad and had no direct interaction with him. His role centred on the events of 2 October 2015, when he accompanied Raban Alou during the sequence of meetings through which Alou arranged to obtain the gun from Talal Alameddine. The offender was present throughout those movements, though he remained in his car during the key exchanges.
The Crown acknowledged the relative sparseness of the evidence of the offender's involvement. His precise knowledge of what the gun would be used for was not established, but the jury's verdict necessarily included a finding that he assisted Alou in acts done in preparation for a terrorist act.
Legal Issues
- What findings of fact could be made against the offender, consistent with the jury's verdict and proved to the required standard?
- What was the objective seriousness of the offender's role in the conspiracy?
- What weight should be given to subjective mitigating factors, including the offender's age, background, and evidence of rehabilitation?
- How did the sentences imposed on co-offenders and others connected to the attack bear on the appropriate sentence?
Decision
Sweeney J made factual findings consistent with the jury's verdict, applying the standard that findings adverse to the offender must be proved beyond reasonable doubt. The court found that the offender assisted Alou on 2 October in obtaining the firearm, accompanying him to meetings with Alameddine at Jones Park and Merrylands. A recorded conversation between the offender and Alou at Merrylands Park was central to the Crown's case, and the jury had rejected the offender's explanation that the conversation concerned Alou's family problems. The court accepted that the offender said "can't get involved but," yet found that he did in fact get involved, for approximately one hour that day.
The court found that the offender's involvement was more limited than that of Alou, Milad Atai, and Alameddine, all of whom had been sentenced for different and more serious roles. Alou and Atai had been involved in preparatory steps long before 2 October, including attempts to obtain a gun and efforts to have an ISIS flag made. Alameddine had handed over the loaded firearm knowing it would likely be used in a terrorist act. The offender, by contrast, participated only on the day itself and in a constrained capacity.
Relevant subjective factors considered by the court included the offender's age (22 at the time), his lack of prior criminal history, his family background, and evidence of rehabilitation since being taken into custody in November 2015. The court also noted that the offender had not pleaded guilty, meaning no discount applied on that basis. His social media activity in the days following the shooting was considered as part of the overall picture of his state of mind.
The court imposed a sentence of 14 years imprisonment with a non-parole period of 10 years and 6 months, backdated to commence on 13 November 2015. The court also gave the statutory warning that the Commonwealth Attorney-General may apply after sentence for orders requiring the offender to remain in detention or under supervision in the community.
Orders Made
- The offender was sentenced to 14 years imprisonment with a non-parole period of 10 years and 6 months, commencing 13 November 2015.
- The statutory post-sentence supervision warning under the Crimes Act 1914 (Cth) was administered.
Key Takeaways
- Where a terrorism conspiracy involves multiple participants with differing roles, the sentencing court must calibrate the individual sentence to the specific nature and duration of each offender's participation, proved beyond reasonable doubt.
- Findings adverse to a defendant at sentencing require proof beyond reasonable doubt, even where the jury has returned a guilty verdict establishing the elements of the offence.
- A conviction for conspiracy to do acts in preparation for a terrorist act does not require proof that the offender knew precisely what the terrorist act would entail, provided the jury was satisfied the offender assisted in preparatory acts with the requisite state of mind.
- Sentences imposed on co-offenders and associated persons are relevant comparators but carry limited weight where the offences differ materially in nature, gravity, and the basis on which they were resolved (trial versus plea).
- Under the Crimes Act 1914 (Cth), courts sentencing for terrorism offences are required to warn the offender of the possibility of post-sentence detention or supervision orders at the Attorney-General's application.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), including s 16A (sentencing considerations) and post-sentence supervision provisions
- Criminal Code Act 1995 (Cth), s 101.4(2) (possessing a thing connected with preparation for a terrorist act)
- Firearms Act 1996 (NSW)
Cases
- Director of Public Prosecutions (Cth) v Fattal [2013] VSCA 276
- Hatahet v R [2023] NSWCCA 305
- Lodhi v The Queen (2007) 179 A Crim R 470
- Mill v The Queen (1988) 166 CLR 59
- R v Khaled [2020] NSWCCA
- R v Todd [1982] 2 NSWLR 517