Citation: R (Cth) v Alqudsi (No 8) [2023] NSWSC 355
Court: Supreme Court of New South Wales
Date: 11 April 2023
Judge: Rothman J
Background
Following a jury trial lasting over nine weeks, the offender was convicted of directing the activities of a terrorist organisation, the Shura, between 30 August 2014 and 31 December 2014 in Sydney. The Shura was initially formed to assist individuals travelling to Syria to fight against the Syrian government, but law enforcement disruption through passport cancellations and travel bans altered the group's activities. The offender held the role of "Commander" or Emir of the organisation and was treated as such by its members.
During the offence period, the Shura engaged in activity that contemplated serious terrorist targets. Members discussed pledging allegiance to ISIS and/or Al-Qaeda, placing an Islamic State flag on the Sydney Harbour Bridge, and conducting an attack in front of the Bridge. References were made to selecting targets, including the Mardi Gras and potentially the Israeli Embassy, and a member from Syria communicated that someone would come to teach the group how to make improvised explosive devices.
The key prosecution witness, known by the pseudonym OA, was a former Shura member who gave evidence under a warning pursuant to s 165 of the Evidence Act 1995 (NSW), both because of his own involvement in the organisation and because his cooperation with authorities had reduced his sentence. Rothman J accepted OA's evidence and was satisfied of its substance beyond reasonable doubt.
Legal Issues
- What sentence was appropriate for the offence of directing a terrorist organisation under s 102.2 of the Criminal Code Act 1995 (Cth), which carries a maximum of 25 years' imprisonment?
- How should the objective seriousness of the offence be assessed against the notional range of conduct that could give rise to this offence?
- How should the sentence interact with the offender's existing sentences for foreign incursion offences?
- What non-parole period was appropriate under ss 19AB and 19AG of the Crimes Act 1914 (Cth)?
Decision
Rothman J approached the sentencing task by assessing where the offender's conduct sat within the notional range of seriousness for this type of offence. The court noted that the maximum penalty need not be reserved only for cases where no worse instance is conceivable, but should be imposed where the conduct falls into the worst category of cases. The court identified that all terrorism offences are inherently serious, and that the predominant sentencing considerations in such cases are community protection, punishment, denunciation, and specific and general deterrence.
The court found that the offender remained the Commander of the Shura throughout the relevant period, directing its activities while serious terrorist targets were being contemplated by the group. The targets discussed, the references to IED training, and the pledge of allegiance to ISIS and/or Al-Qaeda all elevated the objective gravity of the offending. The court also noted that, where it was not established on the balance of probabilities that the offender had resiled from previously held extremist views, community protection assumed even greater importance.
In fixing the sentence, the court took into account that the offender was already serving sentences for related foreign incursion offences, the overall effect of which was eight years commencing 12 July 2016. To avoid double punishment and to reflect the totality principle, the new sentence was backdated to commence on 11 November 2019. The court imposed a term of 15 years' imprisonment, reflecting the seriousness of the conduct but stopping short of the 25-year maximum.
Orders Made
- The offender was convicted of intentionally directing the activities of a terrorist organisation (the Shura) between approximately 30 August 2014 and 31 December 2014, in contravention of s 102.2 of the Criminal Code Act 1995 (Cth).
- Sentenced to 15 years' imprisonment, commencing 11 November 2019 and expiring 10 November 2034.
- Non-parole period of 11 years and 3 months, expiring 10 February 2031, fixed pursuant to ss 19AB and 19AG of the Crimes Act 1914 (Cth).
- A warning was issued pursuant to s 105C of the Criminal Code Act 1995 (Cth) that an application for a continuing detention order may be made after completion of the sentence.
Key Takeaways
- For terrorism offences involving directing a terrorist organisation, the Supreme Court confirmed that community protection, punishment, denunciation, and deterrence are the dominant sentencing considerations, consistent with the Court of Criminal Appeal's approach in Lodhi v R.
- Where an offender has not been shown on the balance of probabilities to have abandoned extremist views, the element of community protection carries even greater weight in the sentencing calculus.
- The maximum penalty of 25 years is not confined to cases where no worse instance is imaginable; courts assess whether the conduct falls within the worst category of cases on a notional scale of culpability.
- Totality principles applied to federal offences: the new sentence was backdated to avoid the offender being punished without proper account being taken of his existing sentences for related foreign incursion offences.
- At the time of sentencing, this was only the second conviction recorded for directing a terrorist organisation in Australia, meaning the court assessed the range of possible offending largely on a theoretical basis of what was practically achievable.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), ss 102.2, 105C
- Crimes Act 1914 (Cth), ss 7A, 16A, 19AB, 19AG
- Evidence Act 1995 (NSW), s 165
Cases
- Benbrika v R (2010) 204 A Crim R 457; [2010] VSCA 281
- Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360
- R v Uweinat [2021] NSWSC 1256