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R v Alqudsi [ 2016] NSWSC 1227  (1 September 2016)

Last Updated: 17 May 2023



Supreme Court
New South Wales

Case Name:
R v Alqudsi
Medium Neutral Citation:
Hearing Date(s):
Dates of trial: 23, 24, 27, 28, 29, 30 June, 1, 4, 5, 6, 7, 8, 11, 12 July 2016. Proceedings on sentence: 24 August 2016
Date of Orders:
01 September 2016
Decision Date:
1 September 2016
Jurisdiction:
Common Law - Criminal
Before:
Adamson J
Decision:
See paragraph [126]
Catchwords:
CRIMINAL LAW – sentencing – conviction after jury trial of seven offences under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) of assisting persons with the intention that they enter Syria for the purposes of engaging in armed hostilities – principles of general deterrence and need to denounce the offending

CRIMINAL LAW – sentencing – Commonwealth offence – seven offences – no statutory ratio or judicially determined norm for proportion between non-parole and total term – single non-parole period imposed
Legislation Cited:
Cases Cited:
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Johnson v The Queen [2004] HCA 15; 78 ALJR 616
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Simpson [2001] NSWCCA 534
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
Veen v The Queen (No. 2) (1998) 164 CLR 465
Weininger v The Queen [2003] HCA 14; 212 CLR 629
Category:
Sentence
Parties:
Regina
Hamdi Alqudsi
Representation:
Counsel:
D Staelhi SC/R Glover (Crown)
S Corish (Offender)


Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Zali Burrows Lawyers (Offender)
File Number(s):
2013/363649

JUDGMENT

  1. On 12 July 2016 following a trial by jury Hamdi Alqudsi was convicted of seven counts of performing services for persons with the intention of their entering Syria for the purposes of engaging in armed hostilities there contrary to s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The maximum penalty for each offence is ten years.
  2. The first charge on the indictment was that the offender:
“Between about 25 June and 14 October 2013, at Sydney, in the State of NSW, did perform services for another person, namely Tyler Casey (also known as Abu Qaqa), with the intention of supporting or promoting the commission of an offence against section 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978, being the entry by that person into a foreign State, namely Syria, with intent to engage in a hostile activity in Syria, in particular, engaging in armed hostilities in Syria.”
  1. The remaining charges were in identical terms save for the name of the person for whom the offender provided services. In the second charge the person named was Caner Temel (also known as Abu Musa); in the third, Mehmet Biber (also known as Abu Abdul Malik); in the fourth, Muhammad Abdul-Karim Musleh (also known as Abu Hassan); in the fifth, Abu Alim; in the sixth, Amin Mohamed (also known as Abu Bilal); and in the seventh, Nassim Elbahsa. The man in the fifth count, Abu Alim, was identified by the offender in his evidence in the sentence hearing as Mr Aboshi.
  2. The offender usually addressed other Muslim men by the prefix “Abu” (meaning brother), followed by a nickname which was not the man’s actual name. The following table is for the purposes of reference.
Count in indictment
Name
Nickname
Wife’s name (if relevant)
1
Tyler Casey
Abu Qaqa
Amira Karroum
2
Caner Temel
Abu Musa
Fatima
3
Mehmet Biber
Abu Abdul Malik
4
Muhammad Abdul-Karim Musleh
Abu Hassan
5
The offender identified him at the sentence hearing as Mr Aboshi
Abu Alem/ Abu Alim
6
Amin Iman Mohamed
Abu Bilal
7
Nassim Elbahsa
N/A
Mohammad Ali Baryalei
Abu Omar

The facts

  1. As sentencing judge, I may not take facts into account in a way that is adverse to the interests of the offender unless the facts have been established beyond reasonable doubt. However, if there are circumstances which I propose to take into account in favour of the offender, it is sufficient that they be proved on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ. There are other matters which can be taken into account in sentencing, or which form part of the narrative, which do not fall into either category: Weininger v The Queen [2003] HCA 14; 212 CLR 629 at [19]- [24].

The purpose of the Crimes (Foreign Incursions and Recruitment) Act

  1. In 1978 the Commonwealth Parliament passed the Crimes (Foreign Incursions and Recruitment) Act 1978, in response to a series of resolutions passed by the United Nations General Assembly which called on nation States to stop foreign fighters and those who provide assistance to them. Section 6 of the Act makes it an offence to enter a foreign State for the purpose of engaging in armed hostilities. Section 7 of the Act makes it an offence to perform services for someone with the intention of that person entering a foreign State for that purpose. The law was originally concerned with preventing anti-government forces but was amended in 1987 to criminalise foreign fighters and assistance given to them, irrespective of the group with which they intended to associate.

Background to the conflict in Syria in 2013

  1. The offender committed the offences for which he is to be sentenced between 25 June 2013 and 14 October 2013 during the civil war in Syria. The evidence established that the offender, the men to whom he provided services and Mohammad Ali Baryalei (Abu Omar), the man to whom the men were sent, were Sunni Muslims, who were opposed to the Assad Government.
  2. For the purpose of explaining the circumstances in which the offences were committed, I propose, on the basis of Dr Shanahan’s evidence at the trial, to summarise the background to the civil war in Syria up to 2013, when the seven offences were committed.
  3. In the seventh century, when Prophet Muhammad died, disagreement about who should succeed him led to the division between Sunnis and Shias. In the ninth century a Shia sect formed around Muhammad ibin-Nusayr. The members of the sect are known as Alawites or “Nusayris”.
  4. In 1920 the United Kingdom and France created the modern state of Syria as part of an agreement to divide responsibility for areas that had been part of the Ottoman Empire. They promoted Alawites, who were a minority group in Syria, into positions of responsibility in the military, in the expectation that their loyalty would be to the French rather than to the majority of the citizens, who were Sunni Muslims.
  5. In 1970 Hafez Al-Assad, an Alawite who was a senior air force officer in the Syrian military, came to power as President. His was a secular government. In 2000 Hafez was succeeded by his British-educated son, Bashar.
  6. In 2006 a Sunni Muslim group known as Islamic State began operating in Iraq. It was an affiliate of Al-Qaeda and opposed the Shi’ite Government in Iraq which was supported by the West. In Tunisia in January 2011 and in Egypt in February 2011, there were popular uprisings which resulted in the overthrow of both governments. In March 2011 anti-government protests began in Syria, where there was an extensive drought, particularly in rural areas in the east, which were largely populated by Sunni Muslims.
  7. Various opposition groups formed in Syria with the aim of replacing the government with one which ruled in accordance with Islamic (Sharia) Law. These included two Sunni Muslim groups, Ahrar Al-Sham and Jabhat Al-Nusra, also known as Al-Nusra Front. Jabhat Al-Nusra was established by Mohammed Al-Julani, a Syrian, who was sent to Syria in about 2011 by Islamic State in Iraq to raise an Al-Qaeda affiliate there.
  8. By 2013 the Syrian Government found it increasingly difficult to keep control of its territory. It retained the capital and other strongholds. However, it had fewer forces in the provinces, which were successfully attacked by militia groups. As a result there was much armed conflict. In 2013 the areas surrounding the cities of Aleppo and Idleb in the north of Syria were controlled by Ahrar Al-Sham and Jabhat Al-Nusra, although the situation was very fluid.
  9. In April 2013 Abu Bakr Al-Baghdadi, self-appointed caliph of Islamic State, announced publicly, without consulting Julani, that Jabhat Al-Nusra formed part of Islamic State in Iraq. This led to a split between Jabhat Al-Nusra and Islamic State in Iraq, which Al-Qaeda was unable to resolve. As a result, Islamic State became a radical Islamist armed group which was no longer loyal to Al-Qaeda. From the time of the split, the various anti-government forces, including Jabhat Al-Nusra and Islamic State, fought not only Government forces, but each other, over territory. Many foreign fighters came to Syria to join these groups. In 2013 it was relatively easy for foreign fighters to get access to Syria. There were several crossings along the 900-kilometre-long border with Turkey where anti-government forces had strongholds, including Bab Al-Hawa near the Hatay province of Turkey.
  10. Much of the evidence in the Crown case at trial comprised telephone intercepts, the time and date of which was recorded by reference to Eastern Standard Time (EST). Accordingly all references to time are to EST, that being the time at the offender’s location in Sydney.
  11. Mr Alqudsi did not give evidence at the trial. He did, however, give evidence at the sentence hearing, both as to the circumstances of his offending and as to his subjective circumstances.
  12. The evidence at trial revealed that the offender performed services for several men, in addition to those named on the indictment, who travelled, or attempted to travel, to Syria to fight. The offender is not to be punished for the services he performed for men who are not named in the indictment. I refer to them only for the purpose of setting out the narrative surrounding the commission of the seven offences of which he has been convicted.

The offender’s conduct

  1. The offender met Tyler Casey in 2010 or 2011 at the hearing of a well-publicised court case involving the offender’s wife, Carnita Matthews, and whether she had a right to wear a burqa notwithstanding requests by police that she remove it for the purposes of identification. Mr Casey, who had heard about the case, came with other men of the Muslim faith to pray in the court room.
  2. The offender met Mr Baryalei in 2012. Mr Baryalei travelled from Sydney to Turkey on 10 April 2013 on his Australian passport. By June 2013, Mr Baryalei was fighting in Syria for anti-Government forces.
  3. Some time between 10 April 2013 and 13 June 2013, the offender came across Mr Casey at the Al-Risalah Mosque in Bankstown. They had not seen each other since Ms Matthews’ court case. They spoke about the situation in Syria. Mr Casey had heard that the offender was in touch with Mr Baryalei. Mr Casey knew Mr Baryalei as they had preached together on Sundays as part of a group of 10 or 15, talking to people on the streets about Islam and handing out brochures. Mr Casey introduced the offender to friends of his, Mr Temel, Mr Biber and Mr Aboshi, and told him that all four of them wanted to go to Syria to fight alongside Mr Baryalei.
  4. The men’s discussions about travelling to Syria largely took place in the form of a “shura” which is an Islamic group meeting in which matters are discussed and decided. It begins and ends with a prayer. Once a decision has been made in a shura, it is regarded as binding on the participants unless and until the decision is changed by a subsequent shura. Although a shura need not take place in a mosque, the discussions between the offender and Mr Casey about his travel arrangements largely took place there.
  5. On 13 June 2013, the offender received a text from Wassim Fayad, an associate, which listed the names and telephone numbers of thirteen men, referred to as brothers, who were to travel to Syria.
  6. The list in Mr Fayad’s text included Mr Casey, Mr Temel, Mr Biber and Mr Aboshi. It also included Mr Musleh whom the offender had met when they were both doing a Bachelor of Islamic Studies course with Charles Sturt University and the Islamic Sciences and Research Academy of Australia at Auburn. Mr Musleh visited the offender at his home in St Helen’s Park in 2013 to ask him to help him go to Syria to fight.
  7. On Saturday 22 June 2013 the offender rang Mr Baryalei in Syria. Mr Baryalei described a battle in which he had fought the day before, in which five men (two foreign fighters and three locals) had died and many others had been injured. Mr Baryalei told the offender that they were trying to take a big area, not a small stronghold, but were unsuccessful as there was a sniper who was “wiping everyone out” and that this was how the five had “gone”. He said that they were so close that “one bullet made our ears ring” and that he had seen bullets go straight through a commander’s chest. Mr Baryalei told the offender: “We got smashed but we’re going to take over.” He described as a “miracle” the fact that he had seen a tank blow up and said to the offender: “Praise be to Allah, the Nusayris they were in there bro, they were copping torture after torture”. He told the offender that he wanted to “open up the door” for the rest of the boys and “after that, I’m just going to make supplication for Allah, the Exalted and Most High, to take me, bro.” Mr Baryalei told the offender:
“I don’t wanna be here man. I’m over it. I’m over it. Why would you want to live in this rubbish for? Why would you want to live in this rubbish for?”
  1. Mr Baryalei described the situation in Syria as “the end of the world”. The offender passed on his wish that Allah would grant Mr Baryalei martyrdom in the path of Allah, to which Mr Baryalei responded:
“I hope...I hope...I hope so, I hope He is pleased with all of us man. Because the way things are going, I don’t know what to think anymore.”
  1. This conversation shows that the offender knew that, by sending the men to Mr Baryalei, he was sending them to fight. In the course of this conversation the offender also asked Mr Baryalei to provide him with a connection within Jabhat Al-Nusra, which the offender regarded at the time as a “perfect Muslim group”.
  2. The following Tuesday, 25 June 2013, the offender rang Mr Baryalei to tell him that four men would arrive that week (Mr Casey, Mr Temel, Mr Biber and Mr Musleh) and that they were going to meet up in Istanbul and go to Hatay airport and would need to be picked up from there. The offender explained in his evidence at the sentence hearing that he needed to let Mr Baryalei know who was coming because Mr Baryalei had to give his approval for each man to come and also he was the one who was either going to meet the men himself, or organise for someone to go and pick them up from Turkey and bring them across the border to Syria. Mr Baryalei already knew Mr Casey, Mr Temel and Mr Biber. Mr Baryalei trusted the offender’s judgment as to Mr Musleh’s suitability and gave his permission for him, too.
  3. The offender told Mr Baryalei that he would be the men’s “commander” from the time of their arrival. During the call, Mr Baryalei put the offender onto another man, Abu Abdeen, to discuss arrangements for the men to go to Bab Al-Hawa. Abu Abdeen told the offender that the men were to be placed with the Night Arrows Battalion, Ahrar Al-Sham, which had headquarters at Bab Al-Hawa. Mr Baryalei told the offender that he wanted to become a martyr.
  4. The services provided by the offender are evident from the telephone intercepts played in the trial. In his evidence at the sentence hearing, the offender confirmed the nature and extent of the assistance he had given. He advised the men, on the basis of information given to him by Mr Baryalei, that they should travel from Sydney to Singapore and then to Istanbul and Hatay. He instructed the men to buy a SIM card on arrival in Istanbul, check into a hotel there and book a flight to Hatay. The offender told the men to let him know their details so that he could pass them on to Mr Baryalei or whoever was to meet the men in Hatay. He also advised them about hotels in Istanbul and Hatay, which he researched on the internet as he had no direct local knowledge, having never been to Turkey or Syria himself.
  5. The offender did not book the men’s tickets or pay for their travel, which, as far as he knew, were covered by donations or their own resources.
  6. On 25 June 2013, after his conversation with Mr Baryalei, the offender spoke with Mr Fayad about other men who might go to Syria. The offender described himself as “like your father, like your older brother”. He used the metaphor, or code, of a soccer game and said that he wanted the “right players to be in the soccer club”.
  7. On Thursday 27 June 2013, the offender spoke to Mr Biber on the phone about the costs and times of various flights. In a subsequent phone call that day, Mr Biber told the offender that Mr Casey wanted to go earlier by himself. The offender disapproved as the shura had not agreed to Mr Casey travelling separately. Later that day, the offender phoned Mr Musleh, who told him that the “Turks” (Mr Biber and Mr Temel) were going on Monday with him and that the American (Mr Casey) was going on Saturday. The offender spoke on the phone to the men who were travelling about obtaining tickets, payment and travel agents.
  8. On Saturday 29 June 2013 the offender spoke to Mr Baryalei again on the phone and told him that he had one brother leaving that day (Mr Casey); three leaving the next day; and four leaving on Monday. He also promised a further eight by the end of the week. The offender told him of the arrangements he had come to with Abu Abdeen in the previous call. The offender persuaded Mr Baryalei to remain near Bab Al-Hawa to meet the “boys” and assured him that he would not be delaying jihad by waiting for them.
  9. On Saturday 29 June 2013 Mr Casey left Sydney on his Australian passport and flew to Istanbul via Singapore. He had booked return flights which were not used. Later that evening Mr Baryalei introduced the offender over the phone to a member of the Al-Nusra Front.
  10. On Sunday 30 June 2013 Mr Baryalei called the offender and told him that the Iraqi commander, Baghdadi, had split with Julani and that some foreign fighters had left Al-Nusra Front and gone to Islamic State. The offender, who did not appear to be either aware of, or concerned about, the split, responded:
“As long as we are with a group that’s not going to smoke, that’s going to follow the straight path, that’s all we care about.”
  1. At 6.37pm that Sunday Mr Casey rang the offender to confirm that he had arrived in Turkey. On 1 July 2013 Mr Temel, Mr Biber and Mr Musleh, all of whom were Australian citizens, left Australia together and flew to Singapore. They arrived in Istanbul the following day, 2 July 2013. They had booked return flights which were not used.
  2. Mr Aboshi, whose wife was in Denmark, planned to visit there first before going to Syria. On 2 July 2013 the offender rang Mr Aboshi who told him that as soon as he arrived in Denmark, he would call him. Later that day the offender spoke to Mr Casey, Mr Temel, Mr Biber and Mr Musleh, who had, by that time, arrived in Istanbul. The offender instructed them to go to their hotel, fly to Hatay and stay there for a night, after which they were to meet Mr Baryalei at Bab Al-Hawa. He also gave advice to the four men about changing money and what currencies to get.
  3. The following day, 3 July 2013, Mr Musleh rang the offender to tell him that they were at the airport and would be boarding in 20 minutes. The offender told him that Mr Baryalei was going to spend the night at Bab Al-Hawa and would meet them in the morning. A little later that same day, the offender phoned Mr Aboshi, who by that time had arrived in Denmark.
  4. About an hour and a half later, Mr Musleh phoned the offender from Hatay airport and told him that no one was there to meet them. The offender advised him to ring a number and then call him back. The offender rang back a few minutes later and was told that they were on their way to somewhere close to Bab Al-Hawa. There were several subsequent conversations with the offender in which he was told that the four men had been met by a “guide” and caught a bus which led to their being reported to police by an Alawite. They convinced the police that they were tourists by speaking in English. After their release they continued to phone and receive calls from the offender who advised them about changing money and staying in a particular hotel, or at least an expensive hotel, so that they would look like tourists. The offender also advised Mr Musleh that Mr Temel and Mr Biber should do the talking because they could speak Turkish. Once they checked into a hotel the offender advised them about changing money in the hotel and warned them not to leave the hotel until they were told that someone was waiting for them at Bab Al-Hawa.
  5. In a call at about midnight, the offender asked the men the name of the hotel where they were staying in case he managed to get in touch with Mr Baryalei.
  6. Just after midnight on Thursday 4 July 2013, the four men phoned the offender. There was a discussion about Mr Biber’s parents who, as soon as they discovered that their son had gone, had called the police to try to stop him from travelling. According to Mr Biber, his parents were “pretty much having a funeral”. Later, Mr Musleh rang the offender who told him that the police in Australia had informed the police in Turkey and that Mr Biber’s parents wanted him to be locked up for 25 years. The offender told him that it was important that they cross the border quickly so as not to be stopped.
  7. That day, 4 July 2013, Fatima, Mr Temel’s wife, called the offender who told her to delete all numbers except his own and instructed her to get rid of her phone. Fatima told the offender that her parents-in-law would rather their son rot in gaol “here” (in Australia) than die “over there” (in Syria). Later that day, the offender rang a Turkish number and spoke to Mr Casey and Mr Musleh, who were still in Turkey waiting to be picked up.
  8. On Tuesday 9 July 2013 the offender rang Mr Fayad and reported that one of the boys was going to return the following day but that it must be kept secret. This was a reference to Mr Musleh, who returned on 11 July 2013. In this conversation the offender said to Mr Fayad:
“We don’t want kids. This is serious. One of the brothers, after he saw what he saw, he went in and in and in and in, now he is coming back. He was speaking to me over the phone yesterday, he was crying over the phone. Like kids.”
  1. On Wednesday 10 July 2013, the following day, the offender communicated by SMS with Mr Aboshi who was still in Denmark. Mr Aboshi told the offender that he was leaving on 18 or 19 July and that once he had a ticket, he would send the details to him. In the following week the offender spoke to Mr Aboshi about his trip to Istanbul and who he would meet when he arrived on 21 July 2013. Mr Aboshi rang the offender from the queue going through passport control in Denmark. A few minutes later he called again to confirm that he had got through.
  2. On 21 July 2013 Mr Aboshi and another man, Abu Abdul Hameed, who also appears to have been assisted by the offender, rang him from their hotel room in Istanbul. The offender gave them instructions about flying to Hatay. He also told them that there had been a bombing inside the city of Al-Rayhanah three to four hours earlier for which it was believed either the Kurds or the Assad regime was responsible. The offender told them that he had not heard from Mr Baryalei and did not think that the brothers could pick them up from Hatay airport but that Mr Baryalei had arranged for Abu Hashim to meet them there. He advised them to lie low so as not to attract attention. He also told them that Mr Musleh had returned to Australia with some “good information”. There was discussion about what flight they would catch to Hatay. The offender explained that the “brothers” (in Syria) did not have phones and could not call him at all times. There were further communications about luggage and the two men meeting another man, as well as arrangements to fly to Hatay.
  3. On the following day, 22 July 2013, Mr Aboshi called the offender and discussed money and payments, including to Mr Baryalei. Later that day, the offender gave the men in Turkey advice about changing money and rates of commission. By this time, another man, known as Abu Zarr, who also appears to have been helped by the offender, had joined the other two. Abu Zarr asked the offender what would happen when he entered the unseen and the offender told him that the doors of heaven would open and that there was just a bullet between him and seeing the beautiful face of Allah.
  4. The next day, Tuesday 23 July 2013, Mr Aboshi, Abu Abdul Hameed, Abu Zarr and their guide, Abu Hashim, called the offender to inform him that they had just crossed the border to Syria. The offender told them not to forget that his jihad is over here as much as theirs is over there. Mr Aboshi told the offender that they were in Bab Al-Hawa with Ahrar Al-Sham and that when they were crossing the border there were gunshots on top of them and it was beautiful.
  5. Later that morning, Fatima rang the offender because she felt that something was not quite right. The offender asked her what she would do if she received a message that her husband was a martyr, to which she replied that she would cry but would praise Allah. The offender told her that she had sold her husband for Paradise. He also instructed her to delete all messages and photos from her phone. She explained that it would be hard to do because they were her last memories of her husband.
  6. On Thursday 25 July 2013 Mr Fayad called the offender, who was upset because another man wanted to come back. The offender expressed concern about the calibre of brothers who they were sending and said to Mr Fayad: “It’s causing us embarrassment. It’s no good, man, It’s no good. Whoever goes should know they can’t come back. Whoever goes can’t come back.”
  7. Later that day the offender called some of the wives of men who had gone to Syria about a photograph that had been circulated in Sydney. He was angry that his name was being mentioned in connection with the photograph. He told Fatima, “I’m the head of everything, you understand, I’m in charge of everything, therefore I mean this is potentially ruinous.” He also expressed his concern about someone going to the police and said that he would change his phone number.
  8. On Tuesday 6 August 2013 the offender rang a Syrian number to communicate his concern about not hearing from “the boys”. The explanation was given that they were 10 kilometres away, at the headquarters, “planning for their work”.
  9. On Thursday 8 August 2013, there was a lengthy conversation between the offender and Mr Baryalei and Mr Aboshi. Mr Baryalei expressed his disapproval of those who wanted to return and said that he was prepared to bring the men to Syria but was not prepared to take them back to Turkey. Mr Baryalei reported that the boys had some “important exams”, which I take to mean a battle. The offender asked whether Mr Baryalei was part of the Front (Jabhat Al-Nusra) or the State (Islamic State). Mr Baryalei said that, although he still had to do something with Ahrah Al-Sham, he was part of the State, and was taking all of the boys with him although he would continue to use Abu Hashim (to meet the boys and take them through Bab Al-Hawa border crossing). The offender was obviously delighted that they were joining Islamic State and said “book my spot”. The offender told Mr Baryalei to tell the boys not to send photographs of themselves to their wives with their “tools”, which I take to be a reference to guns or other weapons.
  10. On Tuesday 13 August 2013 the offender rang Mr Musleh who told him that he was in a bad way and that he had trouble with some people when they saw that he had returned from Syria. The offender told him, in effect, that he had been influenced by Satan. In a phone call to Mr Musleh on 14 August 2013, the offender voiced his concern about a photograph being sent around and said that had to stop quickly or it would ruin “all of us”.
  11. On Tuesday 20 August 2013 the offender’s wife rang Amira Karroum, Mr Casey’s wife, to find out how she was and invite her to visit them. Amira told her that she could not come because her car had broken down. The offender’s wife asked Amira if she was happy to talk to the offender. When she agreed, the offender came on the line to tell her that the boys would trade in her car and buy her a nice Toyota Corolla for over $3,000 and also give her $1,000 in cash. She was obviously delighted. He told her that she and her husband were very special to Allah and explained that whoever takes care of the family of a brother who is on the path of Allah is also rewarded.
  12. On 22 August 2013 Mr Baryalei and Mr Biber phoned the accused to report on their movements. Mr Baryalei told the offender that they needed more men, particularly if they could speak Arabic. Mr Biber asked the offender which photograph was floating around. The offender told them that it was the one of “all of youse” with their weapons and the truck. The photograph referred to was found by the Australian Federal Police when they executed a search warrant in December 2013 at the offender’s residence at Revesby, where he lived for part of the week with another wife. The photograph depicted nine men dressed in black apparently carrying semi-automatic weapons. It was found in a bumbag in the second bedroom with other documents which I am satisfied belonged to the offender. Towards the end of the conversation Mr Biber said to the offender, “May Allah make everything easy on you bro”, to which the offender responded, “May Allah blind the eyes of these dogs on me and my brothers”. I am satisfied from the context that the reference to dogs is a reference to the Australian Federal Police.
  13. On Thursday 5 September 2013, the offender spoke to Amin Mohamed, one of Mr Aboshi’s friends, who had passed on the offender’s number to him. Mr Mohamed was a citizen of New Zealand and wanted to travel to Syria to fight. The offender told him that he just received a message from overseas that there is a “big big operation coming up involving 1,500 brothers/ mujahideen” who may attain martyrdom for the sake of Allah but said that the boys better hurry up because the caravan is moving due to the crusaders making moves on Turkey and that the door may be on its way to being closed. The offender told Mr Mohamed “more importantly you are missing out big time on the reward the companions used to push each other to get to the front line” to which Mr Mohamed responded that he is ready for the surgery himself but there are two other doctors who are waiting for their surgical equipment. He told the offender that he was selling his car to buy surgical equipment. There was then a discussion about when his payday was. In his evidence in the sentence hearing, the offender explained that the participants spoke in code to protect the secrecy of what they were doing.
  14. The offender told Mr Mohamed that he could book a flight himself because there was no red flag on him. The offender also told him to fly to Hatay where he would be picked up by the brothers. Mr Mohamed asked the offender whether AUD$5,000 would be all right. The offender assured him that it would be fine. The offender asked him to send an SMS as soon as the doors to the flight closed. The offender confirmed in his evidence at the sentence hearing that he gave the same advice to Mr Mohamed as he had given to the other men.
  15. The offender reported the news about the imminent operation in Syria to Mr Musleh (who had not yet tried to leave again but would do on 11 September 2013) and told him that Mr Baryalei had spoken to the commander of “our headquarters” who said there might be a very big number out of the 1,500 Muslim fighters to attain martyrdom.
  16. Later that day Mr Mohamed rang the offender about the $5,000 he needed and asked whether it was to be inclusive or exclusive of the ticket. The offender told him that it did not really matter but warned him of the need to be mentally ready as there was no turning back. The offender reiterated that he was in charge of the whole thing. They also talked about the other men who wanted to go and how much money each had.
  17. On Monday 9 September 2013 Mr Mohamed rang the offender who gave him advice about his passport (which was being processed), flights and money. He also advised him to make sure that the men shaved their beards and dressed like tourists. The offender reported that the men over there were on the battlefield and that the “commander” said that they will never come back until either victory or martyrdom so he might never see them again. During the conversation they agreed that, as soon as Mr Mohamed got on the plane, he would send an SMS to the offender saying “Praise be to Allah”. The offender also instructed him to tell the boys that no one was to mention Hatay airport and that they were to dress “non-Islamic”. Mr Mohamed told the offender that they were going to say that they were only in Istanbul for a few days before going to London.
  18. Later that day the offender rang Mr Mohamed to tell him that Abu Dujana, another man who apparently wanted to go to Syria to fight, had had his passport taken away. The offender advised Mr Mohamed to delay his flight and try to get an emergency flight so that he could book and fly out on the same day.
  19. Also on Monday 9 September 2013 there was a lengthy conversation between the offender and Fatima. In the course of this conversation the offender told her:
“No matter how much you pray no matter how many anyone prays he’s [Mr Temel’s] not going to come back finish so hope has to be broken listen to me I am talking to you as a friend and as a brother so hope has to go.”
  1. At about this time the offender came to believe, mistakenly, that Mr Baryalei was dead. On Sunday 15 September 2013, Mr Musleh rang the offender from Thailand and told him his scheduled arrival time in Istanbul. The offender told him to get his “arse” over there and reported that the four who were there were in a major battlefield. He also passed on the news about Mr Baryalei.
  2. That day, the offender also rang Fatima and told her that Mr Baryalei was dead. He said to her:
“It’s not easy all right but this is why the boys went do you understand that?”
  1. Not long after this conversation the offender spoke to Mr Fayad and told him of Mr Baryalei’s death. The offender, who was obviously excited by the news, began arranging a banquet in a park at Auburn to celebrate Mr Baryalei’s martyrdom. He suggested stuffing a lamb with rice.
  2. The following day the offender found out that Mr Baryalei was still alive. He was very concerned about the mistaken news and told Mr Musleh that if the men “have martyrdom” they had to send a photograph so that the offender could show the family of the deceased man. The offender also spoke to Mr Musleh about being met and taken to the camp by Mr Casey.
  3. Later that day, Mr Mohamed reported to the offender that he would arrive on Saturday or Sunday but had not yet booked his ticket. In this conversation he referred to the offender as “coach”. On several other occasions the war in Syria was referred to as a soccer game which required “A-league” players.
  4. On Tuesday 17 September 2013 the offender phoned Mr Musleh who was at the airport in Thailand. Mr Musleh told him that they were making him wait.
  5. On 19 September 2013 the offender spoke to Mr Mohamed about appropriate luggage, money and flights, to Istanbul and from there to Hatay. He gave him a telephone number for Mr Baryalei, who was to meet him. Two days later, Mr Mohamed checked into his flight to Singapore at Brisbane airport but was stopped and not permitted to travel.
  6. On 23 September 2013 the offender tried to leave Australia to go with his wife on a fortnight’s hajj (pilgrimage) to Turkey. At about this time he exchanged messages separately with Mr Biber and Mr Temel about the cost of various weapons in Syria, including an AK47 and a M16. The offender was told that Mr Baryalei wanted him to come because he would be an “asset and moral encouragement for us aussie boys”. The offender also received a text which said: “So there’s a big benefit to u coming even if u dnt [don’t] fight”. In his evidence at the sentence hearing the offender said that he was just asking hypothetical questions about the cost of weapons in case he ever went to Syria but he was not intending to fight on this trip as he only planned to be in Turkey for two weeks. I am not satisfied from these conversations that the offender ever had any real intention to go to Syria to fight or that, in discussing the price of weapons, he was doing anything other than pretending.
  7. As it happened, the offender was prevented from leaving Australia at Sydney airport and his Australian passport was cancelled.
  8. On 8 October 2013 the offender sent a text to Nassim Elbahsa: “You got the green light brother”. The offender also knew Mr Elbahsa from the Al-Risalah Mosque in Bankstown. Mr Elbahsa was not connected with the first four men named in the indictment but had contacted the offender because he had heard that he was helping “the brothers” to go to Syria.
  9. On 12 October 2013 Mr Elbahsa left Sydney on his Australian passport and flew to Istanbul via Abu Dhabi. When Mr Elbahsa arrived in Istanbul he called the offender, who instructed him to call Mr Baryalei and told him what he should say to him. He asked Mr Elbahsa to report back to him regarding the conversation. A few minutes later Mr Elbahsa called the offender to tell him that Mr Baryalei’s number was not working. The offender gave the number to him again. Text messages passed between the offender and Mr Elbahsa on 14 October 2013 in the course of which Mr Elbahsa reported to the offender that he would be leaving for Hatay in the morning and had spoken to Mr Baryalei. Mr Elbahsa told the offender of his difficulties in booking a flight and confirmed that he had told Mr Baryalei that he would be on a later flight. On 15 October 2013 a message was sent to the offender from a Skype address confirming that a brother had arrived, which subsequent messages revealed to be Mr Elbahsa.
  10. On 19 November 2013 the offender sent a message to Mr Temel on WhatsApp in the following terms:
“Every Muslim in Australia should come to u brothers regardless of the way however he needs to leave through a shura if he wants the blessings of Allah, it’s up to abu omar.”

Relevant matters when passing sentence

The evidence

  1. The Crown tendered the offender’s criminal history, extrinsic material relating to the Crimes (Foreign Incursions and Recruitment) Act, as well as a pre-sentence report dated 19 August 2016. The Crown indicated that it did not rely on the pre-sentence report or contend that it was reliable.
  2. The pre-sentence report recorded the offender’s family and social circumstances and his education and employment as well as his mental and physical health, which will be referred to in more detail below. Its author, who assessed the offender as suitable for a Community Service Order, set out the following statements which had been made by the offender in the course of the interview:
“FACTORS RELATED TO OFFENDING

Associations

Mr Alqudsi denied any affiliation with terrorist groups and added that he was not aware of the Islamic State of Iraq and Syria at the time of his offences given that this organisation was formed in 2014.

Attitude to offending

In discussing the current offences, Mr Alqudsi stated that he was not aware that the offences were criminal in nature at the time of his offending. Mr Alqudsi denied that he promoted foreign hostile acts and stated that his intention was to provide aid to Syrian civilians as he considered they were in need of assistance.

Mr Alqudsi was able to demonstrate some insight into the consequences that his actions would have had upon the community by acknowledging his offending behaviour would have contributed towards damaging the lives of civilians. He further stated that he ‘immensely regretted’ his involvement and he was ‘blind and careless’ when he aided individuals to travel to Syria.”

  1. I regard these statements as either false or misleading.
  2. Mr Corish tendered, on behalf of the offender, a report dated 23 August 2016 from a psychologist, Dr Fayza Al Shamali; a report from a neurosurgeon, Dr Abraszko; photographs of the offender while undertaking charitable voluntary work in Somalia in 2012; and a large number of testimonials, including from the offender’s mother, father and younger brother, his wife (Carnita Matthews), as well as from some of his step-children, his wife’s parents and her siblings and their partners. His step-daughter, Lamyah Galiel, described how much her own children love the offender. She also said:
“Baba [the offender] has taken myself and my brothers as his own straight from the word go, as he was never able to conceive children of his own, I think this is what ignited the need for him to help the orphans or purely just the needy.”

The maximum penalty

  1. The maximum penalty is a relevant matter to be taken into account when passing sentence. The maximum penalty for an offence against s 7 of the Crimes (Foreign Incursions and Recruitment) Act is ten years. This is to be contrasted with the maximum penalty for an offence under s 6 of entering a foreign State with intent to engage in a hostile activity in that foreign State or engaging in a hostile activity in a foreign State, for which the maximum penalty is 20 years.
  2. Parliament has, by providing for a maximum penalty of ten years for an offence under s 7 indicated the seriousness with which it regards conduct falling within the section. I bear in mind that the maximum penalty is to be reserved for the worst category of cases: Veen v The Queen (No. 2) (1988) 164 CLR 465 at 478.
  3. I note that the Crown referred to statutory amendments that took effect on 1 December 2014, which increased the maximum penalty for an offence equivalent to each of those for which the offender has been found guilty, from ten years to life imprisonment. This increase was relied on by the Crown as an indication of the seriousness with which the Commonwealth regards such offences. The amendments apply to offences committed after 1 December 2014. They have no bearing on the sentences to be imposed on the offender since all of his offences took place before the amendments.

The nature and circumstances of the offences and the course of conduct adopted by the offender

  1. In assessing the relative seriousness of an offence under s 7 of the Act, the nature and extent of the services performed, the intention with which they were performed and their intended effect are all significant factors.
  2. The nature and circumstances of the offences have largely been addressed above. Each of the seven offences of which the offender has been convicted formed part of a course of conduct of assisting men to go to Syria to fight. The offender adopted a relatively standard practice with each of them. In these circumstances I must have regard to the totality of the offender’s criminal behaviour for the seven offences to determine the appropriate sentences for all offences: s 16A(2)(a), (b) and (c); s 16B of the Crimes Act 1914 (Cth) and Johnson v The Queen [2004] HCA 15; 78 ALJR 616.
  3. Although it is not necessary to decide whether each man would have travelled to Syria to fight but for the services provided by the offender (and the evidence does not enable such a determination to be made), the evidence established that the offender played a significant role in assisting each man to go to Syria to fight. The offender instructed each man to use him as the central point of contact; and to call him at significant junctures. The offender took upon himself the role of “commander” and “big brother” to the men, whom he described as “boys”.
  4. On the basis of the evidence, and consistently with the jury’s verdicts, I am satisfied that between 25 June 2013 and 14 October 2013 the offender performed services for each of the seven men named in the indictment with the intention that each would travel to Syria, via Turkey, to engage in armed hostilities. The offender performed a clear liaison and advisory role. He did not, however, recruit them. Each man was a volunteer who sought out the offender to obtain assistance to get to Mr Baryalei in Syria. The services which the offender performed included: the confirmation of travel movements and meeting details; advice and instruction about departure, luggage, appearance, hotel accommodation, appropriate currencies, solving problems with security overseas, as well as providing general encouragement, guidance (including with respect to religious matters and relationships with parents and spouses) and support. Although some of these matters (which Mr Corish described as “information services”) could readily have been attended to by the men themselves, who could have consulted the very same travel internet sites as did the offender, these were not the most valuable services he provided to them.
  5. The most important role the offender played was to connect each of these men to Mr Baryalei before they crossed the border from Turkey to Syria. Most of the men named in the indictment did not speak Arabic; some spoke Turkish; they generally conversed in English. They were conspicuous in Turkey and Syria because they were obviously not locals. The making of contact between the men and Mr Baryalei was important, if not essential, to their being able to enter Syria; to purchase weapons and be trained in their use; and to engage in armed hostilities there. I accept the Crown’s analogy that the offender was the centre of a wheel in which the seven men and Mr Baryalei were the spokes. Indeed as referred to above, the offender described himself to Fatima in the following terms: “I’m the head of everything, you understand, I’m in charge of everything.”
  6. It is also of significance that, in the conversation on 22 June 2013, the offender asked Mr Baryalei to provide him with a connection to Jabhat Al-Nusra. Three months later, on 15 September 2013, the offender mistakenly thought Mr Baryalei had died. There was no indication that he believed that Mr Baryalei’s death would affect his own role in helping men travel from Australia to Syria to fight.
  7. The services the offender performed for each of the men named in the indictment were not identical. But for one matter, there is no material difference such as would permit the conclusion that the seriousness of the commission of any of the offences in the seven counts differed in any material respect. Neither the Crown nor the offender contended that any sensible distinction could be made between the services performed for any of the men named in the indictment. That Mr Mohamed was stopped before leaving Australia does not lessen the criminality of the services performed for him. Although by the time the offender provided services to the men in counts 5, 6 and 7 of the indictment, he was a repeat offender, having already performed services for the men in counts 1-4, I do not propose to impose a higher sentence for later offences on that basis. I also take into account that the services performed for the men in counts 1-4 were largely provided to them collectively.
  8. The only offence which differs materially from the others is count 4 which relates to Mr Musleh who left Australia twice for Syria. Mr Musleh left on 1 July 2013 with Mr Temel and Mr Biber. He returned independently and without the offender’s prior approval on 11 July 2013. Mr Musleh left Australia again on 11 September 2013 and contacted the offender from Thailand on 15 September 2013 on his way to Istanbul. Because the offender performed services for Mr Musleh twice with the intention that he travel to Syria to fight, the sentence imposed for count 4 will be greater than those for the other counts.
  9. The evidence indicated that the men whom the offender assisted to go to Syria were intending to fight Syrian Government forces there. However, neither the offender, nor the men he helped, appeared to have any real appreciation of the various political or military aims of the warring forces in Syria. As the offender said in the sentence hearing:
“They, they did not even know where they're going and who they are going to go to.”
  1. For reasons already given it does not matter who they were fighting for or against. That some of the men might have fought for Ahrar Al-Sham, some for Jabhat Al-Nusra and some for Islamic State, and that these groups were fighting each other is not to the point. Nor is it relevant that Mr Baryalei fought, at different times, for all three groups.
  2. There was no evidence before me to establish the fates of any of the men who travelled to Syria, except Mr Musleh, who returned to Australia after the first trip and was stopped on the second trip. The offender’s evidence did not shed any light on what had become of them as the following exchange shows:
“Q. Do you know what happened to any of the men with whom you were involved in sending them to Syria?

A. Do I know what?

Q. Do you know how many of them are still alive?

A. No, of course not.

Q. You don't know one way or the other?

A. No.

Q. Have you not made enquiries about them?

A. No.

Q. You have no interest in what happened to them?

A. After, after I woke up from this nightmare, I don't have nothing to do with it.”

  1. It was accepted by Mr Corish on behalf of the offender, that there was a risk that the men for whom he performed services would, if they entered Syria as planned, die or be injured as a result of fighting there. The purpose of ss 6 and 7 of the Crimes (Foreign Incursions and Recruitment) Act is to deter and prevent foreign fighters from engaging in armed hostilities in foreign States and to punish those who go, and those who assist them. The foreseeable, if not inevitable, consequence of armed hostilities is that people will kill and be killed or injured. I am not satisfied that it is an aggravating factor that the civil war in which the offender intended the men to participate was particularly violent, since all armed hostilities tend to result in death or injury of the participants. In these circumstances, I do not consider it to be appropriate to take into account any injury, loss or damage resulting from the offence. Moreover, the Crown did not submit that the men who travelled to Syria were victims of the offender’s crimes, since it was accepted that each man was a volunteer who had approached the offender for assistance to go and fight in Syria and that none had been either recruited or exploited by the offender.
  2. The offender’s concern for Syrian civilians came across, in part, as well-meaning and his appreciation of the political situation in Syria as naïve. The offender was, at all relevant times, in a safe environment where he was unlikely to be detected except by the use of sophisticated surveillance techniques. However, he was dedicated to the task of assisting the men who came to him to go to Syria to fight. He may not have known in advance which group the men he was sending would fight for, but he did know that they would be involved in armed conflict. Although it is not an aggravating factor, I note that the offender expected that each of the men he helped to go to Syria would die there, as is evident from what he said to Fatima, when he told her to stop hoping for her husband’s return. The relative banality of his actions, which were, so far as the evidence revealed, to make and receive phone calls at all hours of the day and night, does not lessen their gravity.
  3. His various attempts at subterfuge by using codes, subscribing to various mobile phones in false names and false addresses, with different numbers; and his moving between means of communication, including phone, WhatsApp, Skype and Viber, displayed a deliberate attempt to protect himself and his activities from detection. But for the considerable surveillance of his communications conducted by the Australian Federal Police, his crimes would have gone undetected and unpunished and the law unenforced. I accept the Crown’s submission that I should take into account the difficulties of detection in the sentences I impose.
  4. For the reasons given above, and having regard to the importance of the services provided by the offender to each of the seven men, I regard the seriousness of the offending to be moderately high.

General deterrence

  1. General deterrence is an important consideration. The purpose of the Act, including s 7, is to stop foreign fighters by criminalising the conduct of those who perform services for them. The provision of services to another with the intention that the person enter a foreign State to engage in armed hostilities is to be denounced and deterred. As the men who went to Syria appeared to be willing to die for the cause, they are unlikely to be deterred by any sentence an Australian court might impose. However, a person who is contemplating performing services to assist persons to go to Syria to fight might be in a different category. The offender himself was clearly worried about his activities being detected. There is no indication that he was willing to sacrifice either his life or his liberty for “the cause”, however he defined it. However, the deterrent effect of a sentence is not only to be measured by reference to those who might consider offending in future. One of the purposes of incorporating an element of general deterrence in a sentence is to ensure that public confidence in the administration of justice is maintained: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [82] per McHugh J.

Punishment

  1. Punishment is an important purpose of sentencing. The sentences for the seven offences must also take this purpose into account.

Co-operation with authorities

  1. The offender did not co-operate with law enforcement agencies in the investigation of the offences. However, Mr Corish, his counsel, conducted the trial on his behalf in an efficient manner. Concessions were made as to the identity of participants of intercepted communications and the transcript of the content of the intercepted communications was agreed. This co-operation on behalf of the offender substantially shortened the time and cost to the public of the trial. The Crown accepts that I should take this matter into account on sentence in favour of the offender, and I do so.

The deterrent effect of any sentence under consideration on the offender

  1. The terms of the intercepted telephone calls and texts indicate that the offender’s reason for offending was, at least in part, because he understood it to be his religious duty to help send men to Syria to fight. The offender admitted that he suspected, and for at least part of the period of his offending he actually knew, that his conduct was illegal. To this extent, the statement in his pre-sentence report that he did not know his conduct was illegal was false. He accepted that he subscribed for telephone numbers in false names in order to protect himself and the whole operation of sending men to Mr Baryalei in Syria from detection.
  2. The offender was adamant in his evidence at the sentence hearing that he would not break the law again and would confine his community activities to fundraising and donations. However he persisted in portraying himself as a selfless community leader who was prepared to sacrifice himself for others. There was an element of grandiosity in his descriptions of his actions. For example, at the sentence hearing he said, “my role was as the caring big brother who wants to protect the men” and he described what the men he helped send to Syria were doing as “saving lives, protecting lives, innocent lives.”
  3. Nonetheless the offender ultimately admitted in cross-examination what was plain from the evidence: that he knew what was happening in Syria and what the men he helped send there were going to do. Despite these admissions, I am not persuaded that the offender has any real insight into the gravity of his offending or its effect on others. His statement to the author of his pre-sentence report (set out above) that he was not aware of the Islamic State of Iraq and Syria at the time of the offences given that the organisation was formed in 2014 was, in my view, a deliberate attempt to minimise his offending. The telephone intercepts showed that he was aware of Islamic State and was delighted that Mr Baryalei was going to join them. That the name of the group may have changed from time to time is beside the point.
  4. The offender obviously enjoys having people look up to him and depend on him. He was willing and able to spend considerable time and energy communicating with the men who wanted to go to Syria to fight. His availability and energy, which might in other circumstances have been used for good purposes, made him a suitable contact point between the seven men named in the indictment and Mr Baryalei.
  5. The offender expressed considerable distress while giving his evidence at the sentence hearing, including in the following exchange with his counsel:
“Q. But what was wrong about what you did?

A. I should of [sic] thought of my actions before I've done them. I was the type of person who would jump into anything to help anyone, without thinking. But I was doing the wrong thing and as a very proud Australian, this is how I feel, raising up in Australia, Australia gave us ‑ me and my family opportunities that we never had in our country. I feel that I have, I've let down my family, I've let down my wife and kids. I've let down everyone and I, I'm very, very sorry. I'm very sorry.”

  1. I am not sure whether his obvious distress was as a result of his concern for himself and his family if he is incarcerated, or whether he sincerely regrets what he did. He is accustomed to living a comfortable life in Sydney surrounded by a loving and supportive family and taking an active part in the community to which he belongs. I accept that incarceration will be onerous for him and that he is sorry for himself and his family that his actions have resulted in his being charged, prosecuted, convicted and imprisoned. As to whether this amounts to remorse and contrition, the highest Mr Corish could put it was that “he is displaying what I would expect from someone who is on the process to becoming contrite”. I am not persuaded that the offender is either contrite or remorseful, although he is obviously sorry that his actions have resulted in adverse consequences for himself and his family.
  2. Although the offender gave evidence that he would limit his future activities to fundraising, I am not satisfied that he will do so. I do not regard his prospects of rehabilitation as good.

The character, antecedents, age, means, and physical and mental condition of the offender

  1. The offender was born in Nablus in Palestine in 1974. At the age of 11, he migrated to Australia with his parents, his three brothers and his sister as a result of the unrest in Palestine. The family migrated through the family reunion program, as the offender already had extended family in Australia. He described his parents as moderate Muslims. The offender went to various schools, as the family moved house during his childhood and adolescence. He attended Public School at Lakemba and Lidcombe. He went to Marrickville High School and finished his Higher School Certificate at Glebe Public School. He went to TAFE to do a course in metal engineering but did not enjoy it and left after the first year to pursue a career as a security officer from the age of 18 to 32. He worked at the Sydney City Eye Hospital, Star City Casino as well as for Armaguard.
  2. In 2006 he worked as a security instructor for two organisations. The offender gave evidence that he was charged with corruption, as a result of which he was given a suspended sentence, and dismissed from his employment. This does not appear on the criminal history tendered by the Crown and I do not take it into account. The offender’s criminal history (which includes convictions for driving offences and making/furnishing a false statement) is not significant. But for the offending conduct for which he is to be sentenced, he is entitled to be treated as otherwise of good character.
  3. The offender was married from 2000 to 2009, after which, according to him, there was an amicable divorce. In 2009 he married Carnita Matthews, whose husband had deserted her and her seven children in 2002. The offender, who for medical reasons is unable to have his own children, became a much-loved step-father to the seven children. At the time of the offending, he had another wife, with whom he spent part of each week. She was not referred to at the sentence hearing.
  4. In about 2010 the offender obtained employment at Woolworths Minchinbury as a pick packer. He injured his back and neck and was unable to work, as a result of which he was paid workers compensation and was assessed as having 40% whole person impairment. He had an operation on his neck in May 2011. His neck and back are still painful. The workers compensation payments have apparently given him a measure of financial security and enabled him to have a greater involvement in community and charitable works. In 2012 he travelled to Dobly, a village in Somalia, for two months and worked as a voluntary assistant project manager for a project designed to help orphans.
  5. In 2013 the offender undertook fundraising activities for Syrian refugees for AFAS (All for the sake of Allah) by arranging a barbecue on 7 July 2013 at the Minto Mosque. Later that year he raised a further sum to help families leave Syria for Turkey.
  6. There is evidence from a psychologist, Dr Al Shamali, to the effect that he consulted her from 25 November 2013 until early 2014 for depression, which he was reported to have suffered from 2011. However, the description recorded in the report of the offender’s state of mind (solitary, depressed) is so much at odds with his life as established by other evidence that I cannot place any weight on it. Other evidence established that in the second half of 2013 he was regularly communicating with others; that he lived with one wife for part of the week and another wife for another part of the week and in both houses there was a number of children also living there; and that he cared for his two parents, who relied on him heavily for driving, shopping, washing, massages and other daily tasks. He was also performing services as a match-maker in the Islamic community in which he lived. The report also mentioned a car accident, which the offender admitted in his evidence was a mistake. For these reasons I do not place any weight on Dr Al Shamali’s report since its basis has not adequately been made out.
  7. About a year ago the offender moved in with his parents full-time for a while because his mother has leukaemia and his father, whom he described as elderly, at almost 70, also needed help to care for the offender’s younger brother, who has Multiple Sclerosis. His care for his mother extended to showering her, which demonstrates that he has a significant physical capacity and that any residual neck and back pain from which he suffers would not be such as to render incarceration particularly onerous on that account.

The probable effect that any sentence under consideration would have on any of the person’s family or dependants

  1. The offender is obviously devoted to his parents; his wife, Ms Matthews; and his step-children and grandchildren, and they to him. I have taken into account their several testimonials, which set out his good works and the regard in which he is held by his family and community. As referred to above, his mother has leukaemia and his younger brother was diagnosed with Multiple Sclerosis in 2013. The offender has assisted his father to care for them and perform household tasks in his parents’ home as well as to drive his family around. He took his mother to medical appointments and obtained prescription medication for her. I note that, although the offender has been, in recent years, the primary carer for his parents, the offender has two brothers who could look after his parents during his incarceration (and were apparently going to do so when the offender was to be in Turkey with his wife on a hajj in 2013). He has played a significant role as step-father for his wife’s children. Undoubtedly, the offender’s family will suffer from his being in gaol. However, although I take those matters into account, I do not consider that, in all the circumstances, they materially affect the sentence.

Conditions of incarceration

  1. The offender took great umbrage at being classified AA and being incarcerated with terrorists in gaol. He gave the following evidence, which I accept as being heartfelt:
“I love Australia. I always have. I sit down with my grandchildren and I teach them how to sing Waltzing Matilda. I'm not a terrorist, ma'am, and I've been placed with terrorist people in that gaol. I've never threatened my country once in my life. I never will threaten my country, ever.”
  1. The Crown read an affidavit of Mark Wilson, Assistant Commissioner Security & Intelligence Branch sworn 29 August 2016 to provide evidence to the Court as to the offender’s current custodial conditions. He deposed that, in addition to the offender’s AA classification, he has been assigned an interim Extreme High Risk Restricted (EHRR) inmate designation by the Commissioner of Corrective Services.
  2. I am satisfied, on the basis of Mr Wilson’s evidence, that the offender’s classification of “AA” is interim. This classification and his EHRR classification will be reviewed at least every twelve months. There is a prospect that the offender will progress through the classification system and be placed in mainstream gaols. In these circumstances I make no assumption as to his continuing classification or the conditions associated with it.
  3. I have, however, taken into account that the present conditions that apply to the offender’s custody are particularly harsh and restrictive. As it is the offender’s first time in gaol, I accept that he has found imprisonment to be a particularly difficult and punishing experience, made all the more so by his current classification.

Time in custody

  1. The offender was on bail until it was revoked as soon as the jury returned the first six of the seven guilty verdicts. He has been in custody since 12 July 2016. The sentence will commence from that date.

Other matters

  1. The Crown has drawn my attention to sentences imposed for offences under the Crimes (Foreign Incursions and Recruitment) Act although it does not contend that any are comparable. I have considered those cases and agree that none is comparable. There are, in any event, limits on the value to the sentencing process of previously decided cases: Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [54]- [55]. Offences under s 7 of the Crimes (Foreign Incursions and Recruitment) Act can be described as “protean”, which further lessens the utility of comparisons.

Whether a custodial sentence ought be imposed

  1. In all the circumstances, and having considered all other available sentences, I am satisfied that no sentence other than a sentence of imprisonment is appropriate. My reasons are those given above as to the seriousness of the offending conduct, the importance of punishing the offender and denouncing his conduct and the need for general deterrence.

The imposition of a non-parole period

  1. For Commonwealth offences, there is no statutory or judicially determined “normal” ratio between the non-parole period and the total sentence. Accordingly, my discretion to determine the total sentence, the non-parole period and the parole period is not constrained by any formula or norm. The non-parole period is to be determined by what, in all the circumstances of the case, ought be the minimum period of actual incarceration: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 627-629; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59] per Spigelman CJ; Hili v The Queen; Jones v The Queen at [44]. Although the purposes to be served by the sentence are many, I regard the purposes of punishment and general deterrence to be of particular significance in the present case.
  2. Mr Corish submitted, on behalf of the offender that, if a custodial sentence were imposed, the parole period should constitute a very substantial proportion of the total sentence. I do not consider a significant period of parole supervision to be required in the present case. I am not persuaded that the offender’s prospects of rehabilitation would be materially increased by a longer parole period. The balance of term after the expiry of the non-parole period will, in my view, provide sufficient supervision to assist the offender’s reintegration into the community.
  3. I note Mr Corish’s undertaking to explain to the offender the purposes and consequences of fixing the non-parole period: s 16F of the Crimes Act.

Sentence

  1. Hamdi Alqudsi:

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Amendments

17 May 2023 - Publication restriction removed – judgment republished

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