DPP (Cth) v Besim [2017] VSCA 158 (23 June 2017)

Last Updated: 23 June 2017

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0199

DIRECTOR OF PUBLIC PROSECUTIONS (CTH) Appellant v SEVDET BESIM Respondent

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CRIMINAL LAW – Sentence – Crown appeal – One charge of having done acts in preparation for, or planning, a terrorist act contrary to s 101.6 of Criminal Code 1995 (Cth) – Respondent sentenced to 10 years’ imprisonment with non-parole period of 7 years’ and 6 months – Whether sentencing judge erred in taking into account possibility that respondent would abandon planned attack – Whether sentencing judge erred by casting onus on Crown to prove beyond reasonable doubt that respondent had not resiled from belief in violent jihad – Whether sentence and non-parole period manifestly inadequate – Culpability of respondent measured by nature and extent of planned attack as well as proximity to commission of proposed act – General deterrence and protection of community paramount sentencing considerations – Personal mitigatory factors of limited weight – Grave example of offending – High moral culpability – Appeal allowed – Respondent resentenced to 14 years’ imprisonment with non-parole period of 10 years and 6 months – Lodhi v The Queen (2007) 179 A Crim R 470 – R v Elomar [2014] NSWCCA 303; (2014) 316 ALR 206 – Fattall v The Queen [2013] VSCA 276.

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APPEARANCES: Counsel Solicitors For the Appellant Ms S M McNaughton SC, DPP (Cth) with Mr P J Doyle Ms A Pavleka, Solicitor for Public Prosecutions (Cth) For the Respondent Mr P J Morrissey SC with Ms F H Todd James Dowsley & Associates

WARREN CJ

WEINBERG JA

KAYE JA:

1 In June of last year, the respondent, Sevdet Besim, pleaded guilty in the Trial Division to having, between 17 March 2015 and 15 April 2015, done ‘acts in preparation for, or planning, a terrorist act’. This is an offence contrary to subsection 101.6(1) of the Criminal Code 1995 (Cth), and carries a maximum penalty of life imprisonment.

2 The ‘terrorist act’ specified in the particulars to the indictment was ‘the killing of a law enforcement officer’. It was said that this was to be carried out with the intention of advancing ‘violent jihad’.

3 The respondent was sentenced to a term of 10 years’ imprisonment. A non-parole period of 7 years and 6 months was fixed.[1]

4 The Commonwealth Director of Public Prosecutions (‘Director’) now appeals against that sentence. She relies upon the following three grounds:

The learned sentencing judge erred in taking into account the possibility that the respondent would abandon his planned terrorist attack. The learned sentencing judge erred in his application of the principle of the protection of the community, by wrongly casting an onus on the Crown to prove beyond reasonable doubt that the respondent had not resiled from his belief in violent jihad. The sentence and non-parole period imposed on the respondent are manifestly inadequate.

Particulars of Ground 3 The learned sentencing judge failed to give sufficient weight to:

The need for protection of the community;

The need for general deterrence;

The need to denounce the offending;

The need for specific deterrence;

The seriousness of the offence, including the maximum penalty prescribed for the offence;

The nature and circumstances of the offence;

The need for consistency in sentencing; and

The need to ensure the respondent was adequately punished.

In imposing sentence, the learned sentencing judge gave too much weight to: The respondent’s plea of guilty; The respondent’s prospects for rehabilitation; The respondent’s youth and previous good character; and The sentences imposed in R v Fattal [2011] VSC 681.



Background facts

5 What was planned was, in effect, a most brutal and outrageous crime. The respondent would drive his car into a police officer, selected at random, during the course of Anzac Day 2015 commemorations. Having killed or seriously injured the victim, the respondent would then proceed at once publicly to behead him. He would thereafter seize the officer’s gun and, until he himself was either killed or seriously injured, kill as many others as he could in the immediate vicinity.

6 This Court has made comments in CDPP v MHK[2] as to the moral bankruptcy and cowardice of such plans directed to innocent and defenceless citizens. We do not propose to repeat those comments here but note they are equally applicable to this case.

7 The respondent was born in Australia in January 1997, and was therefore only 18 at the time of the commission of this offence. His parents are both of Albanian background, though his mother was born in this country. He has a substantial extended family, most of whom live in Melbourne.

8 It seems that, prior to embarking upon this criminal enterprise, the respondent had lived a perfectly ordinary existence. According to the sentencing judge, there were no signs of any ‘distorted thoughts’ of the kind that ultimately led him to commit this offence.[3]

9 Throughout his formative years, the respondent, though nominally Muslim, had little involvement in religious matters. He only occasionally attended mosques, and showed no signs at all of extremist fervour.

10 All this changed when, while in Year 10 at school, he began attending the former AlFurqan Islamic Centre and Bookshop in Springvale South (‘the Centre’).

11 For nearly two years, the respondent regularly attended lectures at the Centre. These were of a political, as well as religious, nature. Gradually, he became increasingly radicalised. It was at the Centre that he was first exposed to ‘extremist, hate-filled thinking from older, hateful but charismatic individuals’.[4] There, he was introduced to one Neil Prakash, later a senior figure in what has come to be known as Islamic State (‘IS’). Prakash subsequently went to fight in Iraq. He became a major recruiter of Australian terrorists.[5]

12 Throughout the period of his attendance at the Centre, the respondent became ever more extreme in his beliefs. He reached the point of believing that violent jihad against all non-Muslims was justifiable. He began to respect and look up to individuals from IS and other radical groups, including Al-Qaeda.

13 On 22 September 2014, the official spokesperson for IS issued a ‘fatwa’. This was considered to be the first official call upon the followers of IS to kill ‘disbelievers’ in Western countries. The fatwa, which was widely disseminated in this country, was in the following terms:

So O Muslim, do not let this battle pass you by wherever you may be. You must strike the soldiers, patrons, and troops of the idol worshippers. Strike their police, security, and intelligence members, as well as their treacherous agents. Destroy their beds. Embitter their lives for them and busy them with themselves. If you can kill a disbelieving American or European – especially the spiteful and filthy French – or an Australian, or a Canadian, or any other disbeliever from the disbelievers waging war, including the citizens of the countries that entered into a coalition against the Islamic State, then put your trust in Allah, and kill him in any manner or way however it may be. Do not ask for anyone’s advice and do not seek anyone’s Fatwa. Kill the disbeliever whether he is civilian or military, for they have the same ruling. Both of them are disbelievers. Both of them are considered to be waging war ... Blood becomes legal to spill through disbelief. So whoever is a Muslim, his blood and wealth are sanctified. And whoever is a disbeliever, his wealth is legal for a Muslim to take and his blood is legal to spill ... The best thing you can do is to strive to your best and kill any disbeliever, whether he be French, American, or from any of their allies. ... If you are not able to find an IED [an improvised explosive device] or a bullet, then single out the disbelieving American, Frenchman, or any of their allies. Smash his head with a rock, or slaughter him with a knife, or run him over with your car, or throw him down from a high place, or choke him, or poison him.

14 The very next day, 23 September 2014, a young man named Numan Haider, who was the respondent’s close friend, attacked two police officers with a knife at the Endeavour Hills police station. Haider was shot and killed. The respondent had been with Haider in the hours immediately leading up to the attack.

15 Haider’s death was said to have been the ‘catalyst’ for the respondent’s decision to embark upon the Anzac Day terror attack.

16 After Haider was killed, Prakash, who by then was fighting for IS in Iraq, contacted the respondent through social media. He encouraged the respondent to come and join him in Iraq. He also provided the respondent with the contact details of someone who, for the purposes of this judgment, we will describe as ‘S’.

17 On 13 November 2014, the respondent lodged an application for an Australian passport. It seems that he intended to travel overseas to join and fight with IS. However, he was subsequently informed by letter that ‘a competent authority’ was reviewing his application, and further told that it might recommend to the Minister that he not be issued with a passport.

18 Between 22 and 25 January 2015, the respondent conducted a number of internet searches associated with IS. He particularly sought out publications such as the ‘Islamic State Report’ and ‘Dabiq’, the latter being an IS propaganda and recruitment online magazine that glorified IS. It contained photographs of a number of victims of IS violence. It also contained speeches by IS leaders urging Muslims in the West to strike out at citizens of countries participating in the United States-led coalition in Iraq.

19 On 28 January 2015, the respondent drafted an electronic memorandum on his mobile phone. The memorandum was said to constitute a ‘bay’ah’, or pledge of allegiance, to the leader of IS.

20 On 2 February 2015, the respondent began conducting internet searches regarding the Anzac Day commemorations to be held in Melbourne later that year. He accessed information concerning Anzac Day generally, and the particular ceremonies that were to be held at both the Melbourne Shrine of Remembrance and the Dandenong RSL.

21 On 17 March 2015, the respondent initiated contact with S by way of an encrypted voice over internet protocol application. The messages could be programmed automatically to self-destruct from both participating devices. It seems that the respondent had been told, falsely, that S was an influential religious figure, and that he was a married man with children. In fact, and amazingly, having regard to the nature of the communications that passed between the two, S happened to be a 14 year old boy, living at the time in England.[6]

22 The communications between the respondent and S all took place over a nine-day period, from 17 to 25 March 2015. The Director relied upon these communications as the first series of acts in support of the charge ultimately brought against the respondent. They detail explicitly, horrifyingly and in chilling terms, the respondent’s intentions, targets and motivation.

23 In his sentencing remarks, the judge set out in detail the terms of these communications.[7] Broadly speaking, they include the planning for the attack, in which the respondent was constantly being pressured by S, as well as ‘educated’ by him, as to how to go about achieving IS’s objectives.

24 Typical of the exchanges between them were the following:

17 March 2015:

S told the respondent that he had only two options —travel for jihad, or a local attack.

S said that it was time to ‘[give] them what they deserve’ and asked whether ‘shahada’ (or martyrdom) was what the respondent wanted.

The two then discussed weapons, including whether the respondent had access to a gun.

The respondent said he was ‘ready to fight these dogs on [their] doorstep. The more equipment [I’m] provided with the better but [I’ll] still go with [just] a knife in my hand’.

The respondent told S that he had a large machete, and a Taser. He further stated that he ‘[could not] wait now for the op’, that he would ‘love to take out some cops [or] [i]ntelligence agents’ and that he was going to ‘meet with them [and] then take some heads’.

When asked for a list of those he hated most, in order to target them, the respondent replied the Australian Federal Police (‘AFP’), Australian Security Intelligence Organisation (‘ASIO’) and police generally.

He later said that he would ‘run the dogs over’.

18 March 2015:

The respondent said ‘I see the best way to do this is to attack [Australia’s] authority because by attacking [their] authority it shows weakness [and] it then means that the general population has less confidence in them and therefore is more scared ... putting fear into these kuffar.’

The respondent said that he had selected Anzac Day for the operation, saying it would ‘Make sure the dogs remember this as well as [their] fallen [heroes].’

19 March 2015

The respondent told S that, if he could not obtain a firearm he would ‘run a dog cop over, take ghanimah [the spoils of war] and go’.

He later said that he would ’leave [the police officer’s] head a few [metres] from his body.’

21 March 2015

The respondent said ‘25 [April] is a good day [because it is Anzac Day] and this will mean they will remember this on that day every [year] after’.

He said Anzac Day is ‘close to the kuffar heart [because] they lost so many [people] ... The [government] gives a speech on how they will always be remembered’.

23 March 2015:

The respondent and S discussed the planned attack, and how it could possibly go wrong.

The respondent said:

Quick thing [I] wanted to bring up. [Let’s] say [I’m] pulled over between now and the op. And the dog cops [want to] search my car. I got a machete, knife, Taser and shahada flag in the car. [Just] the flag and knife could get me [like two years]. In my mind, [I] would stab the dogs and go on a rampage. This would obviously stop my op. My point being is that this is a possibility [you] know. [It’s just] a heads up. Raids [are] also a possibility. But [God willing] it doesn’t happen and that the op goes to plan.

24 March 2015:

The respondent told S that he would ‘go out there and keep stabbing till [I] get shahada’.

S asked the respondent how many would die or be injured if he ran over a crowd on Anzac Day. The respondent replied:

Depends on who get hit but I won’t be able to drive my car into a crowd. They’re going to be up on the sidewalks. My car’s too low to go on sidewalks. The soldiers marching easy.

The respondent said that his Taser was a ‘knuckleduster with [a] Taser on the front’ and added that, if you hold it long enough, it ‘burns you’.

He said the Taser would drop another on the spot if applied to the neck but then suggested that it would be ‘more effective to stab the dog’.

25 March 2015:

The respondent said ‘My motivation is jannah [paradise] itself, [it’s] the sacrifice of my life and my dunya to fight the enemy of Allah. To be able to show Allah what [I] sacrificed for him.’

Later, the respondent remarked that kuffar reading this would think them ‘crazy, [b]ut we [just] love death more than life [and we] know [with] 100 [percent] conviction of the promise of our Lord’.

The respondent said that the planned terrorist attack had been five months in the making. S said that the respondent should make sure that he got shot. The respondent replied:

I feel like a young kid with a ticket to Disneyworld. Can’t wait. Yeah, I want to make sure I get shot too. Not before I take out at least one. May Allah grant me the strength to take out as many as possible.

S suggested that at least five be killed. The respondent replied ‘I’d love to if I could.’

25 Police in the United Kingdom were the first to discover the communications between the respondent and S when, on 25 March 2015, S was arrested for an unrelated matter. After his arrest, his telephone was analysed. While on bail, S tweeted: ‘[A]nyone who has me on Telegram immediately self-destruct, police have my phone’. S was thereafter re-arrested, following further examination of his telephone, and a review of his communications with the respondent.

26 On 1 April 2015, the respondent placed an online order with Telstra for a new mobile phone. The Crown submitted that his decision to acquire a new phone, and delete the data from his old phone, was a direct result of S’s tweet following his initial arrest. The sentencing judge, in his sentencing remarks, accepted that submission.

27 The second basis upon which the Director relied in support of the charge related to the respondent having accessed websites concerning Anzac Day in preparation for, or planning, the terrorist attack. Digital analysis of his telephone revealed that, on 22 March 2015, he accessed a number of websites relating to the Anzac Day march, road closures and public transport. He also downloaded a document relating to Anzac Day onto his phone. On 14 April 2015, he transferred that document onto the new phone that he had purchased.

28 On 29 March 2015, the respondent contacted the AFP and told them that he had been informed that his passport application was the subject of an investigation by a competent authority. He asked about the status of the investigation.

29 On 6 April 2015, the respondent again contacted the AFP, and this time ASIO as well, about the status of his passport application. On each occasion, he claimed that he needed a passport in order to travel to Dubai.

30 The sentencing judge observed that, at this time, the respondent may still have been harbouring the idea of travelling overseas in order to fight for IS.

31 On 8 April 2015, during a conversation with a friend, the respondent expressed concern about the recent behaviour of another friend, Harun Causevic. It seems that Causevic had made a number of calls to the Australian Passport Office, during which he had become aggressive and referred to ASIO and the AFP as ‘dogs’. The respondent was concerned that Causevic’s behaviour might draw attention to him, and thus jeopardise his plans for Anzac Day. He complained that, when Haider had behaved in a similarly aggressive manner prior to Haider’s death, no one had censured him. He explained to his friend that Causevic had been acting ‘without knowledge’. He added, ‘Now that I’m going somewhere [heaven] and it can get them in trouble.’

32 The third particular upon which the Crown relied concerned the respondent having conducted a series of internet searches relating to the Dandenong Anzac Day commemoration. On 15 April 2015, the respondent accessed the following internet sites on his new mobile phone:

• the ‘Dandenong Cranbourne RSL Facebook’ website;

• ‘Anzac Day Dawn Service – City of Greater Dandenong’;

• the ‘Anzac Day dawn service’ page on the City of Greater Dandenong website;

• Google searches on ‘Clow Street, Dandenong’; and[8]

• the ‘What’s on Anzac Day’ page of the Dandenong Journal website.

33 On 18 April 2015, the respondent redrafted the earlier electronic memorandum, which was on his mobile phone. The Crown submitted that this memorandum was his religious and ideological manifesto, in which he set out his reasons for the planned attack, and his expectation that he would die during the course of carrying it out. He gave instructions as to his burial, and left a message for his family. The sentencing judge concluded that these were things that would be written and kept only if the respondent were seriously intending to carry out a terrorist attack in which he expected to be killed.

34 Digital forensic analysis of the mobile phone found in the respondent’s possession after his arrest revealed that, on 21 January 2015 at 1:58 am, an electronic memorandum had been created on the respondent’s previous phone. This was one week before he created the memorandum regarding the bay’ah on 28 January 2015. The analysis revealed that the memorandum was last modified at approximately 1:00 am on 18 April 2015, some three months after it was first drafted.

35 The memorandum included the following:

In the name of Allah the beneficent, the Merciful A while ago world leaders declared war on Islam and Muslims, invading lands, dividing us into separate nations, installing puppets, killing and torturing Muslims. This war had always had a[n] impact on me, however recently my brother Numan (may Allah accept him) carried out his attack, this opened my eyes up to the reality of who the enemy is. Since then a growing feeling within me had led me to decide to carry out my own. To establish my jihad in Australia, to fight the oppressors, those who have implemented man made law, to fight to make Allah’s word known and the highest, to defend Islam and put fear into those who are enemies to Allah and his religion Insha’Allah. At first I wanted nothing else but to leave this country and live in the Islamic State, however after many complications with my passport I realised this could not be done. So I started to prepare myself for my attack against the enemies of Islam, as Allah says in Quran-8:60: And prepare against them whatever you are able of power and or steeds of war by which you may terrify the enemy of Allah and your enemy and others besides them whom you do not know [but] whom Allah knows. And whatever you spend in the cause of Allah will be fully repaid to you, and you will not be wronged. It is essential for authorities and my family to understand this decision is wholly my own, no one influenced me to do this, no one ‘brainwashed’ me into this, none of my close brothers in Islam put this in my head, the only ones that could be appointed any recognition would be my brothers in Dawlah Islamiah. To my family I’d like to say, do not cry and weep for me Insha’Allah [I] am shaheed Insha’Allah & will be granted Jannaj Al–Firdous, [I] will be able to intercede for you on the day of judgment Insha’Allah. Quran 3:169: And never think of those who have been killed in the cause of Allah as dead. Rather, they are alive with their Lord, receiving provision. Concerning my burial, [I] do not want my grave to be decorated, no stone work or flowers. Simply a wood or stone marking my grave and my name, it is to be done within Islamic guidelines. For my close brothers (outside of family) who want to attend, let them, no one is to be blamed for this action i took it on my own accord, influenced by Quran and Sunnah. Finally whatever money I have left is to pay off any debt [I] might have on my name, the rest is for charity to go overseas to help the poor and needy in Muslim countries. Do not let violence [break] out due to my death between my family and close friends (brothers in Islam). Also to my family turn to Allah, practice your religion properly, do not compromise for anything. Anyone mentioned in my will is to be informed and shown my will.

36 A few hours after drafting this memorandum, at 3.42 am on 18 April 2015, the respondent was arrested at his family home. He was found on a couch in the lounge room. He was aggressive towards police, and had to be restrained. Police located a Rambo knife,[9] with a blade of about 40 centimetres, and also a locking tactical knife, in the respondent’s car. Police also located a large black flag displaying the shahada in white Arabic writing, ten Islamic textbooks, various other Islamic documents, and the letter relating to the review of his passport application.

37 When police analysed the respondent’s electronic devices, including a computer, tablet, mobile phone and watch, they found an extensive internet search history of extremist material, most of it focusing on IS. Numerous images, audio files, videos and other documents were also located on these devices, many of which contained extremist material. Additionally, the Telegram messaging application, with which he had communicated with S, was found on his phone.

38 Police also found a knuckleduster, and a Taser disguised as a black iPhone.

39 When interviewed by police, the respondent:

refused to answer any questions relating to IS or any other terrorist organisation;

said that he was not comfortable answering any questions that were in any way terrorism-related;

denied knowing when Anzac Day was, or having done any internet searching on the topic;

said that he did not recall having discussed Anzac Day with anyone overseas; and

claimed that the knives found in his car were to be used for fishing.

Sentencing remarks

40 After outlining the circumstances of the case, as discussed above, the sentencing judge turned to the nature and gravity of the offence.[10]

41 His Honour noted that the offence to which the respondent had pleaded guilty carried a maximum penalty of life imprisonment. This was greater than the maximum penalty available for a number of other terrorism offences.[11] He observed that the objective gravity of the offence could be measured by the fact that it carried the same maximum as the offence of actually engaging in a terrorist act, and a heavier maximum than the various offences of receiving or providing training, possessing things connected with terrorist acts, and being a member of a terrorist organisation.[12]

42 Noting that the offence of preparing or planning for a terrorist act could vary substantially in its level of seriousness, his Honour stated that he considered that the respondent’s offending fell somewhere between the gravest end of the spectrum, and a much less serious example (albeit one that was still serious).[13]

43 His Honour said:

the offence was at once terrifying and evil. That Mr Besim was planning such an outrageous and gruesome act of murder must terrify law enforcement officers across this country, their loved ones and right-thinking members of the community. It was also evil because, among other things, the planned behaviour was calculated to undermine the authority of the institutions of government, to strike fear into the hearts of the community and, to use Mr Besim’s own words, to ‘make sure the dogs remember this as well as [their] fallen heroes [on ANZAC Day]’. Further, while the acts of preparation and planning were relatively simple, those acts were carried out over a month, were preceded by thoughts of acting in such a way for some months and were accompanied by a hatred for law enforcement officers that is chilling in anyone, let alone one so young. Thus, these were not fleeting thoughts and actions abandoned as quickly as they came to mind. They were actions in pursuit of beliefs held for a considerable period. In addition, Mr Besim had done virtually all of the preparation and planning required for the murder, and was only a week from attempting it, when, fortunately, his plan was uncovered and he was arrested.[14]

44 The judge then noted that the fact that only one death was specifically contemplated, and the fact that the respondent had acted alone, made his offence less serious than those of the conspirators in DPP (Cth) v Fattal.[15] In that case, the three co-offenders who were convicted of conspiracy to do acts in preparation for or planning a terrorist attack agreed to go to an army base in Sydney in order to kill as many personnel as could be found, whether they be ‘army personnel, civilian, male or female’.[16]

45 The sentences in Fattal for each offender, were 18 years’ imprisonment with a non-parole period of 13 years and 6 months. Those convicted sought leave to appeal against sentence on the basis that those sentences were manifestly excessive. There were also cross-appeals brought by the Commonwealth Director, claiming that each sentence was manifestly inadequate. Both the appeals and cross-appeals were dismissed.[17]

46 The sentencing judge in the present matter then turned his attention to the question whether the respondent’s proposed terrorist act, on Anzac Day, was ever, in fact, going to be carried out. He said:

While most of the outward signs are that Mr Besim would have tried to go through with the planned murder, for reasons that follow, I entertain the possibility that he might have pulled out. While he had effectively left a suicide note for his family, which, along with the tenor of most of his conversations with S, suggested a fixed resolve to attempt to carry out his gruesome plan to its inevitable end, there are suggestions, perhaps faint but they are there, in their conversation from 2:23 p.m. on 23 March 2015 that Mr Besim was setting up an excuse for abandoning his planned ‘operation’ in the event that he weakened. For example, he mused that, if pulled over in his car by police, he could be charged with offences concerning his possession of things such as a knife, a Taser, a machete and a shahadah flag, and that that might land him in gaol for two years, which ‘would obviously stop [his operation]’. Then, as if to make sure that S understood that this could happen, he repeated — unnecessarily and a little tellingly, it seems to me — that ‘this is a possibility’; that this was ‘just a heads up’; and that ‘[r]aids [are] also a possibility’; but that he hoped none of this would happen and that the operation would ‘go to plan’. I should add that, in the next breath, Mr Besim quipped that, if he were pulled over, he would ‘stab the dogs and go on a rampage’. And, later, the conversation returned to the disturbing detail of how the planned killing might occur, with S cautioning of the difficulty of decapitation, ‘especially ... in public’. But, as I say, these and other remarks in the same conversation suggest to me the reasonable possibility that Mr Besim recognized in himself that, despite his resolve to murder a police officer in the name of violent jihad, when it came to the appointed day, the natural human inclination to self-preservation, if not a reluctance to kill another human being, might cause him to abandon his ultimate plan and hope that he was arrested for some lesser offence, which in turn might still allow him to save face.[18]

47 His Honour then added that the ‘reasonable possibility’ that the actual plan would not have been carried into effect was only a very ‘small consideration’ in his assessment of the gravity of the offence.[19] He went on to say, however, that in conjunction with other mitigating factors, ‘it does give me at least a measure of confidence that Mr Besim is not as irretrievable as his offence would seem to suggest.’[20]

48 After this, the judge took into account a number of mitigating factors. He first considered whether the respondent had, as was submitted on his behalf, renounced violent jihad.[21] He referred to two reports by Patrick Newton, a forensic psychologist, that were tendered on the plea. Mr Newton said that, when he spoke to the respondent, he had disavowed any intent to pursue violent extremism in the future. Although he continued to hold a conservative interpretation of Islam, he had told Mr Newton that he believed that societal change would be best achieved through discussion, political advocacy and similar means, rather than through violence.[22] He said that he had changed his views over a period of some months, after discussions with moderate Imams, as well as through his own reflection and reading.[23]

49 The prosecutor on the plea objected to any reliance being placed on Mr Newton’s report for the purpose of demonstrating that the respondent had renounced extremist violence. The prosecutor said that such evidence had to come from the respondent himself.

50 However, the respondent did not give evidence on the plea. Given the fact that there was no direct evidence from him that he had moderated his views his Honour was not affirmatively satisfied that he had renounced violent jihad. However, his Honour went on to conclude that the Crown had not established, beyond reasonable doubt, that there had been no such renunciation.[24] Accordingly, he was prepared to give the respondent some credit, in that regard, through a finding of enhanced prospects of rehabilitation.[25] That finding is challenged and forms the basis of ground 2 of this appeal.

51 The sentencing judge accepted that the respondent’s youth and immaturity were significant mitigating factors. In his report, Mr Newton had observed that the respondent was, in some respects, immature and lacked sophistication. His Honour accepted that this was so. He also accepted that the respondent had been ‘exposed to extremist ideas by older and charismatic individuals who corrupted his thinking’. Finally, he accepted Mr Newton’s opinion that Haider’s death had been the immediate trigger for the respondent’s profound alienation from mainstream society.

52 The sentencing judge also accepted Mr Newton’s view that the respondent’s personality was still in a developmental phase. He accepted that it would be preferable for the respondent to continue his involvement in a long-term de-radicalization programme, and to be insulated from extremist views.

53 By way of further mitigation, the judge noted that the respondent had no prior convictions, and that he had previously been of good character. He said:

While it may be true that young people of previous good character often commit terrorist offences, in my opinion, that does not deny the importance of youth, immaturity and previous good character as mitigating factors. This is all the more important when a youth’s mind has been corrupted by adults who should know better. It is essential that the law recognize this reality and factor into sentencing the impressionability of youth, and the consequent effect that has on moral culpability, and that the reform of a corrupted youth is a worthy aim in itself.[26]

54 Finally, his Honour took into account, as significant mitigation, the respondent’s plea of guilty, and the level of contrition that he had shown. In that regard, he relied upon various character references that were tendered, as well as what he perceived to have been the respondent’s general conduct throughout the plea. He also considered that additional mitigation should be afforded by the fact that the respondent was likely to serve his time in protection. He concluded that the respondent had good prospects of rehabilitation, noting that his youth meant that he could be ‘set on the right path’. In that regard, he took into account the support of the respondent’s family and his good work history.

55 His Honour next turned to general sentencing principles. He rightly spoke of the importance of general deterrence, and noted that the Court must ‘denounce such behaviour in the strongest terms’ and ‘send a signal that such outrageous crimes will be met with condign punishment.’[27]

56 In relation to specific deterrence, his Honour took into account the respondent’s youth, previous good character, plea of guilty, contrition and good prospects of rehabilitation.

57 Finally, in terms of rehabilitation itself, he noted that the respondent should be given a sentence that maximised his chances of reform, rather than being ‘crushed by a sentence that otherwise does no more than to incapacitate him’.[28]

58 His Honour then considered several comparative cases that had been drawn to his attention. These were the decisions of the New South Wales Court of Criminal Appeal in Lodhi v The Queen,[29] and Elomar v The Queen,[30] and the decision of this Court in Fattal.[31] He noted that he had not been provided with any authorities that were on all fours with the instant case, nor had he been able to find any. As such, he relied mainly on the particular facts of the case before him, and on general sentencing principles.

59 He noted, however, that Fattal had been of some assistance. That was because the Crown had accepted that the respondent’s offending should be viewed as less serious than that of the three conspirators in that case. It seems that this was primarily because the offenders in Fattal had intended, all along, to kill as many people as possible, whereas the respondent’s plan had been somewhat less ambitious.[32] Unlike the respondent, the offenders in Fattal had pleaded not guilty.

60 His Honour also observed that the respondent was younger than the conspirators in Fattal, all of whom were in their late-20s or early-30s.

61 The judge said that, had the respondent not pleaded guilty, he would have imposed a sentence of 15 years’ imprisonment with a non-parole period of 11 years and 3 months.

Director’s submissions

Ground one

62 The Director submitted that the sentencing judge erred in treating as a reasonable possibility the prospect that the respondent would have abandoned his planned attack. The Director went so far as to submit that it was not open on the evidence to infer that there was a reasonable possibility that he would have done so.

63 The sentencing judge based this finding of possible withdrawal upon a single passage in the respondent’s exchanges with S, on 23 March 2015, which we have earlier set out.[33]

64 The Director submitted that the passage in question did not justify the conclusion that the respondent had not made up his mind irrevocably to proceed with the Anzac Day attack. Yet, according to the Director, his Honour had used that finding to conclude that there was less need for specific deterrence, and also less need to have regard to community protection, when sentencing the respondent. He had also impermissibly used that finding to treat the respondent’s prospects of rehabilitation as being somehow enhanced.

65 The Director referred specifically to s 101.6(1) of the Criminal Code which, as she noted, is concerned with planning and preparation. As the sentencing judge correctly noted, this section is designed to interrupt preparation for terrorist acts in order to frustrate their commission.

66 The Director referred to the decision of the New South Wales Court of Criminal Appeal in Lodhi v The Queen, where it was held that ‘the main focus of the assessment of objective seriousness must be the offender’s conduct and the offender’s intention at the time the crime was committed’.[34] Accordingly, she submitted, although the likelihood of a terrorist act actually being carried out was not necessarily irrelevant, it was usually nothing more than a subsidiary consideration in sentencing for an offence against this provision.

67 The Director submitted that the mere possibility of an offender withdrawing from a planned attack in no way mitigated the offending. Moreover, it did not ‘offer hope’ for the respondent’s rehabilitation, and did not reduce the need for specific deterrence, or community protection, as the judge had found.

68 The Director pointed to a number of facts which, she submitted, supported a finding that the respondent was no more likely to withdraw from the planned attack in this case than in any other case. She referred to the following facts in support of that submission:

the respondent had held the beliefs motivating the attack for a considerable period of time;

he had done virtually all the preparation and planning for the attack before being arrested only a week or so before its intended commission;

he had drafted a memorandum, dated 18 April 2015, which included instructions as to his burial; and

he had been motivated by the prospect of martyrdom and being admitted to paradise in the afterlife.

69 The Director further submitted that in the passage in question, upon which his Honour relied, the respondent was simply a warning to S of a possible impediment to the attack going ahead if the police intervened. Nothing in this communication indicated any reluctance on his part to go through with the planned operation.

70 Moreover, even if it could be understood that way, the respondent could scarcely gain any benefit from what he had said. He had, after all, told S that if he were intercepted by police he would ‘stab the dogs and go on a rampage’.

71 The Director noted that counsel for the respondent on the plea had not advanced the submission that this exchange with S indicated any vacillation on the part of his client.

72 The Director next submitted that merely because the judge had said that the possibility of withdrawal was only a ‘small consideration’ in his assessment of the gravity of the offending did not mean that it had been given no weight. The error, specific only, and factual, though it may have been, was material and had vitiated the exercise of the sentencing discretion.

Ground two

73 The Director submitted that the sentencing judge erred in his application of the principle of protection of the community, by wrongly casting an onus on the Crown to prove, beyond reasonable doubt, that the respondent had not resiled from his belief in violent jihad, an onus that his Honour concluded the Crown had not discharged.

74 The Director submitted that this error arose from the fact that his Honour, though not affirmatively satisfied that the respondent had resiled from jihadist beliefs, nonetheless gave some credence to what he had told Mr Newton regarding his current beliefs. The judge, having noted the prosecutor’s objections to evidence of that kind being treated as having discharged the onus resting upon the respondent to establish a matter of mitigation, had ruled these statements inadmissible, as hearsay, based upon s 4(2)(a) of the Evidence Act 2008.

75 The prosecutor below drew attention to various matters that suggested positively that the respondent had in no way resiled from his support for IS, or acts of terror. He pointed to the finding, some months after his arrest, of a hand drawn IS flag in the respondent’s cell, as well as newspaper clippings and other documents indicating support for IS beliefs.

76 The Director submitted that there was overwhelming evidence that the respondent had undertaken the various acts relied upon in the particulars in preparation for, or planning, a terrorist act out of a fanatical and substantial commitment to violent jihadist doctrine. There was no basis, on the evidence, upon which his Honour could conceivably have been satisfied that the respondent had renounced his jihadist beliefs.

77 The Director also submitted that whether an offender has resiled from the fundamentalist beliefs which motivated his actions will be of particular importance in sentencing for this specific offence.

78 The Director submitted that, because the judge was not satisfied that the respondent no longer held extremist views, he was obliged to sentence on the footing that the position in that regard had not changed. At the very least, he ought not to have treated his uncertainty as to the respondent’s beliefs at the time of the plea as warranting any degree of mitigation.

79 The Director next submitted, in support of this ground, that the correct approach had been that adopted by Spigelman CJ in Lodhi v The Queen.[35] There, the Chief Justice said:

In the context of the crimes presently under consideration, incapacitation does not merely refer to the prospect that in the future a particular offender will re-offend. With respect to the crime of preparation for terrorist acts the Court is not simply concerned with future criminal conduct of a recidivist character. It is concerned with the possibility of perfection of the very crime for the preparation of which the offender has been found guilty. Accordingly, the issue is not merely one of punishing an offender for something s/he may do in the future. It is the recognition that the protection of society requires the offender to be prevented from perpetrating the offences which s/he was preparing to commit. Giving the element of protection of society substantial weight, particularly in a context where personal deterrence and rehabilitation are, given the nature of the offence and the findings of fact, entitled to little weight, is consistent with the principle of proportionality laid down in Veen (No 2).[36]

80 The Director submitted that the need for community protection in sentencing an offender for planning a terrorist act did not depend on any assessment of the likelihood of that person’s future reform. Rather, it arose from the need to protect society from the very kind of behaviour in which the respondent had engaged.

Ground three

81 The Director commenced her submissions in support of the ground of manifest inadequacy by contending that, as a general proposition, circumstances personal to the offender count for much less by way of mitigation when dealing with terrorism offences. She referred to what Price J said in Lodhi:

Rehabilitation and personal circumstances should often be given very little weight in the case of an offender who is charged with a terrorism offence. A terrorism offence is an outrageous offence and greater weight is to be given to the protection of society, personal and general deterrence and retribution.[37]

82 The Director submitted that the sentencing judge’s emphasis throughout his remarks on the respondent’s youth, immaturity, previous good character and prospects for rehabilitation was inconsistent with this principle.

83 The Director submitted that there was no proper basis for his Honour’s finding that the respondent had good prospects of rehabilitation.[38] Even if (contrary to her submission) it had been necessary for the judge to be satisfied beyond reasonable doubt that the respondent had not renounced his extremist beliefs, if he were to sentence on that basis, his Honour ought to have been so satisfied on the evidence. On any view, given the nature of the offending and the course of conduct that led up to it, there needed to be some tangible basis for concluding that the respondent had significantly and materially changed his views. There was none.

84 The Director submitted that the evidence of contrition was slight. The bare plea of guilty, in the face of an overwhelming case, did not warrant the weight it was given. There was no real evidence that the respondent had accepted responsibility for the gravity and repugnance of his offending. Indeed his false denial to Mr Newton that he had taken an oath of allegiance[39] — far from being consistent with his claim that he had renounced violent jihad, as the judge thought[40] — suggested the contrary.

85 The Director contended that, for serious terrorism offences, the sentencing discretion should be guided by the principles of deterrence, punishment, denunciation, and protection of the community.[41] The primacy to be accorded to these principles was not reflected in either the respondent’s sentence, or in the sentencing judge’s reasons for imposing that sentence.

86 In referring to the purposes of sentencing, his Honour had not explained the weight that he accorded to each of them, individually and collectively.[42] Nor had his Honour referred to the principles set out in the leading authorities, including Lodhi, Elomar and Fattal, all of which established a clear hierarchy of sentencing considerations. His failure to apply these principles, together with the errors the subject of grounds 1 and 2, had resulted in a plainly inadequate sentence.

87 The Director submitted that, rather than applying the principles from cases involving cognate offending, the sentencing judge gave particular significance to the actual sentences passed in Fattal.[43] In doing so, his Honour erroneously treated that case as establishing a kind of numerical benchmark.[44] That meant that he derived the sentence that he imposed through a process of numerical equivalence, rather than as the outcome of the application of correct legal principles to the facts of the respondent’s offending.[45]

88 Given the small number of cases involving offending comparable with that of the respondent, it could not be said that the sentences upheld in Fattal were in any sense representative of a discernible sentencing pattern or range.[46] A related danger in treating Fattal as some sort of numerical benchmark was that a comparison between the seriousness of the offending in that case, and that of the respondent, was not straightforward.[47] For example, while an assault on a military base would undoubtedly cause great alarm, it would differ in nature, extent and duration from the public fear, and horror, which the respondent’s Anzac Day attack would have caused.

89 Similarly, the Director submitted that, while the sentencing judge was correct to observe that, in its literal sense, the respondent’s plan, as specified in the indictment, was to kill a single person, it was also clear that he welcomed the prospect of killing more victims if the opportunity arose, and would have done so.[48]

90 The Director further submitted that the inherent gravity of the respondent’s offence was underscored by the maximum penalty of life imprisonment which attached to a contravention of s 101.6(1) of the Criminal Code. That said, it was submitted that the respondent’s conduct was a very serious example of that offence, having regard to the following features:

the terrorist act contemplated was murder, and not mere property damage; [49]

the intended victim was a police officer, performing his or her duty; [50]

the murder was to have been carried out in a particularly shocking and gruesome manner, involving as it did the public beheading of that police officer;

the respondent welcomed the prospect of there being multiple victims whom he would have killed had he been able to do so; [51]

the plan had been developed over some months;

the respondent’s preparation extended to his carrying a large knife concealed in his clothing in order to ‘test’ whether he was able to move freely, and whether the knife could be seen;

the attack was to be carried out during a public ceremony, on a day of national significance;

the respondent was arrested just one week prior to the date for the planned attack; and

the occasion, and the proposed victim, had been deliberately selected in order to maximise the terror that the attack would generate.[52]

91 The Director submitted that this last point had a special significance. She argued that it was a distinguishing feature of terrorism offences that their object was the coercion or intimidation of the community or government.[53] The nature and extent of the intimidation intended to be generated by a terrorist act was therefore central to an assessment of the gravity of the offence.

92 The Director argued that it was difficult to overstate the impact that this attack would have had upon this community, had it taken place.[54] While all terrorist attacks will have a lasting impact upon the public’s sense of security, this attack would have re-entered the national public consciousness every year, for many years to come. Indeed, that was precisely what the respondent intended.

93 As the respondent correctly anticipated, an attack upon the very people whose job it was to protect the public would certainly have eroded the community’s sense of safety. Moreover, the public would feel directly threatened by an attack of this kind, which was to be committed in the street, where many members of the public were to gather. To cause members of the public to think twice before attending a public commemoration, on a day of national significance, would itself be a shocking consequence of the kind of terrorist act that the respondent was intent upon carrying out.

94 The Director contended that the gravity of the respondent’s offending, and the need to protect the community from terrorist acts of the kind he was planning, were not adequately reflected in the sentence passed.

Respondent’s submissions

Ground one

95 The respondent submitted that the sentencing judge had been entitled, on the basis of the discussion between the respondent and S on 23 March 2015, set out at paragraph 24 of these reasons, to find that there was a reasonable possibility that the respondent would abandon his planned attack. Indeed, it could be said that this passage indicated that there was some level of vacillation on the part of the respondent, although couched in terms of being intercepted by police before he could carry out his plan.

96 Alternatively, the respondent submitted that the sentencing judge had treated this matter as one of no great consequence, having described the possibility of abandonment as one the significance of which ‘should not be overstated’. In other words, the error if there were one, was not a material error. It was certainly not an error that should vitiate the exercise of the sentencing discretion.

Ground two

97 The respondent submitted that this ground should be rejected, in part at least because the prosecutor below had not challenged the mode of reasoning that the judge had foreshadowed he would adopt, and that he ultimately did.

98 The respondent referred to a passage in the transcript of the plea where the judge specifically foreshadowed that, although he might not be affirmatively satisfied as to the respondent having renounced violent ideology, he also might not be satisfied beyond reasonable doubt that the respondent had not done so. All that the prosecutor had said in that regard was:

Then if your Honour were to find yourself in the mid-point your Honour would have to give full regard to the need to protect society because of the uncertainty associated with that. Your Honour would have to approach it in exactly the same way as Justice Whealy and others have approached it.

99 The respondent submitted that this was a far cry from a rejection by counsel who appeared on the plea of the two forms of onus of proof that his Honour ultimately adopted. In particular, the prosecutor had not submitted that the Crown was not obliged to prove that the respondent had not resiled from belief in violent jihad beyond reasonable doubt, but had rather left that matter very much in the air.

100 The respondent next submitted that merely because he had been motivated by a commitment to jihadist violence up to the time of his arrest did not mean that he should be considered as someone who would retain such an attachment into the future. Were that to be the case, it would be a circumstance of aggravation, and the sentencing judge would need to be satisfied beyond reasonable doubt of its existence if he were to act upon it. His Honour had been entitled to find that the respondent, as a young person who had been heavily influenced by ‘lunatic clerics’ and others, might still be a good candidate for future rehabilitation. After all, the factors that made the respondent a danger to the community at the time of the offending would not be static over time.

101 Accordingly, ground 2 was not made out.

Ground three

102 The respondent submitted that the sentencing judge had set out, in his sentencing remarks, all relevant and applicable sentencing principles. He had acknowledged the importance of general deterrence, denunciation and community protection. He had also taken into account the various mitigating factors and balanced them against the objective gravity of the offending. The case involved a very young person, who had pleaded guilty.

103 It was further submitted that the respondent had good prospects of rehabilitation, having regard to his young age, relative intelligence, and close family ties. The plea of guilty was said to be particularly significant, especially in terrorism cases where such pleas were said to be rare.

104 The respondent submitted that the Director’s contention that the sentencing judge had misused Fattal by treating it as a ‘numerical benchmark’ was misconceived. His Honour was entitled to act upon the fact that the prosecutor on the plea had conceded that the offending in Fattal involved greater criminality than did the offending in the present case.

105 A sentence of 10 years’ imprisonment, with a non-parole period of 7 years and 6 months, could not be regarded as wholly outside the range reasonably available in the circumstances.

Conclusion

106 In our opinion, it is unnecessary to decide this case on the basis of either grounds 1 or 2. In the end, the points raised by the Director under these grounds seem to us to be largely subsumed within her broader contention that the sentence imposed in this case was manifestly inadequate.

107 That said, we are quite satisfied that the particular passage in the communications between the respondent and S, upon which the sentencing judge fixed[55] when he concluded that there was a reasonable possibility that the respondent might not proceed to carry out his planned attack, cannot be read as supporting that conclusion. There was nothing in that passage that suggested even the slightest reluctance on the part of the respondent to carry out his plan. There was merely a reference to a contingency that he might adopt in the event that he happened to be apprehended before he could complete his self-assigned task.

108 Ground 2 also seems to us to have some force. The submission put on the plea that the respondent no longer held jihadist views, based upon what he had told Mr Newton, was strongly challenged, and the onus that rested upon him to make good that point, upon which he sought to rely in his favour, was clearly not discharged.[56] His failure to discharge that onus left the sentencing judge with nothing but the evidence as to the respondent’s state of mind, at the time of the commission of the offence, and nothing tangible to suggest that his attachment to violence had been abandoned by the time he came to be sentenced.

109 There was no onus resting upon the Crown, in those circumstances, to prove beyond reasonable doubt, or indeed to any lesser standard, that this attachment still continued. The question of an offender’s attitude towards violence is not, in the classic sense, to be viewed as an aggravating factor, and it was wrong to approach the matter in that way.

110 Both grounds 1 and 2 should be seen as particulars of manifest inadequacy which was, in substance, the ground upon which the Director ultimately relied.

111 In that regard, the starting point must be the maximum sentence for this offence, which is, of course, life imprisonment. As this Court said in DPP (Cth) v MHK,[57] the offence created by s 101.6 was designed to ensure that persons who planned to commit terrorist acts in our community be intercepted early, well before they are able to carry these acts out. It is, for that reason, that the culpability of an offender, convicted of such an offence, is not measured purely by how close he or she has come to committing the act of terror, but also by appreciating the nature and extent of the act that was both contemplated and intended.[58]

112 Again, as was said in MHK, in cases such as the present, the principles of general deterrence and protection of the community must be given substantial, if not primary, weight. The fact that the respondent indicated an intention to himself be killed during the course of the Anzac Day terror attack in no way reduces the importance of general deterrence as a sentencing consideration.[59]

113 We also reiterate that entirely separate from general deterrence, sentencing for terrorist offences must give full weight to protection of the community, including by way of incapacitation of the offender. This was not a case in which the sentencing judge could properly have regarded rehabilitation as some form of assurance of community protection, since there was no basis for any finding that the respondent had changed his views.[60]

114 Given the nature of the respondent’s offence, and the purpose of the relevant provision under which he was charged, mitigating factors of a personal nature had to be given substantially less weight than in other forms of offending. Indeed, we agree with the observations of Price J in Lodhi, to which the Director referred in her submissions, to the effect that rehabilitation and personal circumstances should often be given ‘very little weight’ in such cases. As his Honour added, a terrorism offence is ‘an outrageous offence’, and greater weight must be given to the protection of society, general deterrence and retribution.

115 In the present case the respondent was only 18 years of age at the time of the offending. Ordinarily, that would be a significant mitigating circumstance in relation to most offending. His age would be relevant to an assessment of his moral culpability, because it is recognised that young people of that age are immature, and impressionable. In addition, rehabilitation is regarded as of particular importance in such cases.

116 The relevance of youth as a mitigating factor, in cases involving serious criminality, has been considered by this Court on a number of occasions. We reiterate what we said upon that subject in MHK.[61] The greater the objective gravity of an offence, the less likely it is that factors such as general deterrence, denunciation, and retribution will cede to the interests of rehabilitation. In that regard, the position in this State is no different to that in any other part of Australia.

117 The judge, in his sentencing remarks, observed that instances of this offence could vary substantially in their level of seriousness. He then distinguished between ‘the gravest end of the spectrum’ in which the offence could involve behaviour preparatory to the murder of ‘say, thousands of people’, and could therefore be equated with the actual killing of several people. He distinguished such behaviour from a ‘much less serious example of the offence, albeit still serious’, involving only grave damage to property.

118 His Honour concluded that the respondent’s offence ‘fell somewhere between these two extremes’. No doubt, logically that is so. However, and for the reasons given by the Director in both her written and oral submissions it was still, on any view, a grave example of offending of a kind that, by its very definition, will always be regarded as extremely grave. The very language of the section creating the offence, and the elements contained therein, make that clear. The aggravating factors present in this case, including the fact that a police officer was targeted for beheading, that the killing was to take place publicly, and on Anzac Day, and the respondent’s willingness to kill other innocent civilians if at all possible, made this an extremely serious example of a terrorist offence. The respondent’s moral culpability was very great indeed. His cold-blooded and chilling discussions with S, which the sentencing judge rightly characterised throughout the plea as reflecting ‘putrid’ behaviour, called for severe punishment, and a strongly deterrent sentence.

119 Being fully conscious of the limitations that apply to appellate intervention of this Court upon a ground such as manifest inadequacy,[62] we are nonetheless compelled to the conclusion that the sentence of 10 years’ imprisonment with a non-parole period of 7 years and 6 months was ‘wholly outside the range’ of sentences reasonably available for offending of this gravity. The sentence did not accord with community expectations, and did not meet the requirements set out by various intermediate appellate courts throughout this country as to the principles that govern sentencing for terrorism offences.[63]

120 We would set aside both the head sentence and non-parole period fixed below. In lieu thereof we would sentence the respondent to a term of 14 years’ imprisonment, and fix what therefore is a statutorily mandated non-parole period of 10 years and 6 months.

121 In arriving at that new sentence, we are of course aware that in Benbrika v The Queen[64] significantly lower sentences were imposed for the very serious terrorism offences there committed. Those sentences may have been regarded as within range at the time. However, having regard to the scourge of modern terrorism, and the development of more recent sentencing principles in this area, they seem to us to have been unduly lenient. No such sentences would have been imposed today.

122 Having regard to the usual practice in this Court of treating s 6AAA of the Sentencing Act 1991 as applicable to Commonwealth sentences, we indicate that had it not been for the respondent’s plea of guilty, we would have imposed a sentence of 19 years with a non-parole period of 14 years and 3 months.

- - - - -

[1] Crimes Act 1914 (Cth) s 19AG.

[2] DPP (Cth) v MHK [2017] VSCA 157.

[3] R v Besim [2016] VSC 537, [10] (‘Reasons’).

[4] Ibid.

[5] Although at the time of sentencing it was thought that Prakash had been killed while fighting in Iraq, it was subsequently discovered that he was still alive. It seems that he is currently awaiting extradition to Australia.

[6] S has since been prosecuted for his involvement in terrorist activities. He was sentenced to life imprisonment with a non-parole period of five years.

[7] Reasons, [38]–[90].

[8] The Dandenong RSL is located in Clow Street, Dandenong. Anzac Day services for the Dandenong RSL were scheduled to occur in Clow Street on 25 April 2015.

[9] Named after the large and deadly knife used to great effect by Sylvester Stallone in the various Rambo movies of the 1980s.

[10] Reasons, [118].

[11] Ibid [119].

[12] Ibid.

[13] Ibid [122]-[123].

[14] Ibid [124]–[125].

[15] [2013] VSCA 276 (Buchanan AP, Nettle and Tate JJA) (‘Fattal’); R v Fattal [2011] VSC 681 (King J).

[16] Fattal [2013] VSCA 276, [179] (Buchanan AP, Nettle and Tate JJA).

[17] Ibid [2].

[18] Reasons, [127].

[19] Ibid [128].

[20] Ibid.

[21] Ibid [131].

[22] Ibid [132].

[23] Ibid.

[24] Ibid [138]-[139].

[25] Ibid [141], [160]–[165], [170].

[26] Ibid [150].

[27] Ibid [168].

[28] Ibid [171].

[29] (2007) 179 A Crim R 470 (Spigelman CJ, Barr and Price JJ). See also at first instance: R v Lodhi [2006] NSWSC 691; (2006) 199 FLR 364 (Whealy J).

[30] [2014] NSWCCA 303; (2014) 316 ALR 206 (Bathurst CJ, Hoeben CJ at CL and Simpson J). See also at first instance: R v Elomar [2010] NSWSC 10; (2010) 264 ALR 759 (Whealy J).

[31] [2013] VSCA 276.

[32] It could, of course, be said that the respondent also planned to ‘kill as many people as possible’.

[33] See par [24] of these reasons.

[34] (2007) 179 A Crim R 470, 531 [229].

[35] Ibid.

[36] Ibid 493–4 [108]–[109].

[37] Ibid 539 [274]. See also 491 [89], where Spigelman CJ cited Lord Bingham CJ’s statement in R v Martin [1999] 1 Cr App T (S) 477, 480, that ‘in passing sentence for the most serious terrorist offences, the object of the Court will be to punish, deter, and incapacitate; rehabilitation is likely to play a minor (if any) part.’ See also Elomar v The Queen [2014] NSWCCA 303; (2014) 316 ALR 206, 329 [640]–[641]; and at first instance: R v Elomar [2010] NSWSC 10; (2010) 264 ALR 759, 779 [78].

[38] Reasons, [160]–[165].

[39] Ibid [142]–[143].

[40] Ibid [143].

[41] See Fattal [2013] VSCA 276, [173]. See also Benbrika v The Queen [2010] VSCA 281; (2010) 29 VR 593, 715 [557]; Elomar v The Queen [2014] NSWCCA 303; (2014) 316 ALR 206, 329 [640]–[641].

[42] Reasons, [166]–[171].

[43] Ibid [176].

[44] Cf Hudson v The Queen (2010) 30 VR 610, 617 [31].

[45] Cf Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 527 [18] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) and 542–4 [74]–[78] (Heydon J).

[46] Cf R v Pham [2015] HCA 39; (2015) 256 CLR 550, 558 [26].

[47] On the plea, the Crown referred to the difficulties in comparing cases.

[48] Reasons, [89].

[49] Rather than a terrorist act involving only damage to property.

[50] See R v Debs [2005] VSCA 66, [351] (Vincent JA, with whom Warren CJ and Winneke P agreed).

[51] In his messages with S on 25 March 2015, Besim confirms his intention to ‘take out at least one’ and then prays for the strength ‘to take out as many as possible’.

[52] Reasons, [41]; [48] and [124].

[53] See Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, 338 [45] (Gummow and Crennan JJ); 451 [421] (Hayne J).

[54] Some approximation of that impact is provided by the reaction of citizens of the United Kingdom to the murder by beheading of British soldier Leigh Rigby on 22 May 2013.

[55] Set out at [24] of these reasons for judgment.

[56] R v Storey [1998] 1 VR 359, 369 and 371 (approved by the High Court in in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 and Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47).

[57] [2017] VSCA 157.

[58] R v Lodhi [2006] NSWSC 691; (2006) 199 FLR 364, 373, affirmed on appeal in Lodhi v The Queen (2007) 179 A Crim R 470.

[59] DPP (Cth) v MHK [2017] VSCA 157.

[60] In MHK, the respondent gave evidence to the effect that he no longer supported violent jihad. In the present case, although the sentencing judge invited counsel who appeared on the plea to call his client to that effect, the invitation was declined.

[61] See also DPP v Lawrence [2004] VSCA 154; (2004) 10 VR 125 (Batt JA) and Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43.

[62] See, for example, R v Karazisis (2010) [2010] VSCA 350; 2010 31 VR 634, 662-3 [127] (Ashley, Redlich and Weinberg JJA), a passage from which is set out in DPP (Cth) v MHK [2017] VSCA 157.

[63] R v Pham [2015] HCA 39; (2015) 256 CLR 550.

[64] [2010] VSCA 281; (2010) 29 VR 593.