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R v Shoma (No 2) [2021] VSC 797 (3 December 2021)

Last Updated: 3 December 2021

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0162

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CRIMINAL LAW – Sentence – Guilty plea to engaging in a terrorist act and membership of a terrorist organisation – Accused already serving 42 year sentence for engaging in a terrorist act at the time of the offences – Prison offence – Limited injury to victim – No remorse – Very poor prospects of rehabilitation – Sentenced to total effective sentence of 12 years imprisonment – Partial cumulation on current custodial sentence - R v Shoma [2019] VSC 367 – Criminal Code Act (Cth) ss 101.1, 102.3, 105A.23, Crimes Act 1914 (Cth) ss 16A, 16B, 17A, 19, 19AG.

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HER HONOUR:

Introduction

1 Momena Shoma, you have pleaded guilty to engaging in a terrorist act on 30 October 2021 (charge 1) and being a member of a terrorist organisation, namely Islamic State (‘IS’), between 4 July 2019 and 30 October 2020 (charge 2).
2 The maximum penalty for charge 1 is life imprisonment.^[1] The maximum penalty for charge 2 is ten years imprisonment.^[2]
3 On 5 June 2019, Justice Taylor of this Court sentenced you to 42 years imprisonment for the offence of engaging in a terrorist act.^[3] The offences to which you have pleaded guilty before me occurred at Dame Phyllis Frost Centre (‘DPFC’) during that term of imprisonment.
4 In considering the matters put forward during the plea hearing I have had regard to the documents tendered by the Crown, including a plea opening,^[4] submissions on legal principles,^[5] a table of comparative cases,^[6] and a victim impact statement from Kailee Mitz.^[7] I have also had regard to the written submissions tendered on your behalf^[8] and the oral submissions made by each party.

Summary of your offending

5 There was no dispute about the factual basis of the offences set out in the Crown’s plea opening.

Background

6 The plea opening includes detailed information about the foundation of IS but I will not repeat that information here, other than to note that IS is a listed terrorist organisation.^[9] It is variously known as the Islamic State of Iraq and Sham, ‘ISIS’ and ‘IS’. Abu Bakr Al-Baghdadi declared a Caliphate, and named himself Caliph on 29 June 2014, before calling upon all Muslims to declare allegiance to the newly named IS. IS espouses an extremist interpretation of Islam, and promotes sectarian violence. On 22 September 2014, an official spokesman for IS^[10] issued a Fatwa ordering followers of IS to travel to Syria (where IS was waging civil war). Failing that, the Fatwa ordered followers to target, amongst others, the Australian Government or the wider Australian community in retribution for Australia’s involvement in the conflicts in Syria and Iraq.

Charge 1

7 In early October 2020, whilst serving your sentence for an act of terrorism you were transferred to a more open unit after having spent the previous 12 months in restrictive lockdown for up to 23 hours a day. Early in the morning of 30 October 2020, you left your cell and joined other prisoners who were able to go outdoors into the yard. That morning, another prisoner had signed out a pair of gardening shears to work in the yard.^[11] When you saw the shears, you returned to your cell to put on runners and a pair gloves. You then went out to the yard and watched the two prisoners who were using the gardening shears, while you pretended to read a book. After some time, just before a head count, one of the prisoners stowed the shears in a laundry area, rather than signing them back in, in accordance with the rules. You followed that prisoner. When she left the laundry area, you loitered and obtained a newspaper from nearby. After a short while, you retrieved the shears, hid them behind the newspaper, and left the unit. You took the shears to a nearby annex where another prisoner, Kailee Mitz, was lying on a couch, reading. You then approached Ms Mitz, intending to stab her in the neck with the shears. Ms Mitz greeted you when you entered the room but then noticed that as you were approaching her you were armed with gardening shears. She raised her hands to defend herself as you came towards her and the shears cut the base of her left thumb causing bleeding. You were quickly restrained and disarmed by other prisoners, allowing Ms Mitz to run off and seek help. Corrections staff were notified, and you were taken to a holding cell. Kailee Mitz was taken to hospital, where she received five stitches to the laceration caused by the gardening shears. She returned to the prison later that same day.
8 Following the incident you were interviewed by police. Initially, when you thought you might only be charged with an assault you either denied the attack or declined to comment, but when police suggested you could be charged with a terrorism offence you immediately made admissions to having committed a terrorist act in the name of IS, and expressed pride in having done so. You told police you had been planning the attack for a long time. It seems you had planned it since at least February 2020.
9 On 4 November 2020, Corrections Victoria Assistant Commissioner Jenny Hosking spoke with you about your formal separation into the management unit but you said your memory of the event was blurry, and you denied saying the attack was motivated by IS. However, later that same day, you wrote to Ms Hosking changing your position again, offering an honest account of what occurred. You were then interviewed by Corrections Victoria’s Intelligence Unit on 6 November 2020 and made full admissions.
10 On 10 November 2020, you met with Ms Hosking and another prison official^[12] and admitted that the attack was an act of terrorism, done in support of IS. You explained that you had planned the attack for months and chose Kailee Mitz because she is a Canadian national, and because you wanted wider public exposure for the attack. You admitted that you intended to stab Ms Mitz to death.^[13] You expressed willingness to commit another attack if given access to other prisoners.
11 You made further detailed admissions during another police interview on 13 November 2020. The latter interview also canvassed information relevant to charge 2, and you made admissions that have been relied upon to support the membership charge.

Charge 2

12 Your membership of IS, a listed terrorist organisation, is supported through evidence of your pledged allegiance to IS and your self-identification as a soldier of IS over the charge period. You wrote a series of letters between July 2019 and May 2020 to a male prisoner.^[14] In one of those letters dated 4 July 2019, you said that you would never give up your allegiance to Islamic State and described efforts to de-radicalise you as an ‘evil’ agenda.^[15] In those letters you also expressed support for martyrdom.^[16] On 31 October 2019, in your own notes, you wrote a pledge of allegiance to the leader of IS,^[17] and vowed to listen to and obey him.^[18] You also wrote a series of letters to your younger sister.^[19] In one such letter intended for her, dated 31 December 2019, you suggested she had what it took to be a ‘devoted mujahid’, and that that was what she was ‘meant to be’.^[20] You also expressed hope that Allah would ‘bless’ her with martyrdom.^[21] In a letter to your father dated 9 January 2020, you again explained that your allegiance to IS^[22] would remain intact.^[23] In two further letters to your sister, dated 9 January and 30 April 2020 you again expressed hopes for your sister’s martyrdom.^[24] In addition to the above, a search of your cell revealed depictions of the IS flag including on the wall of your cell, and notes referring to ‘green wings’, and martyrdom as the ‘best outcome’.
13 The Crown case is that your membership of a terrorist organisation is evidenced by your demonstrated knowledge of the terrorist organisation, your persistent preparations to undertake terrorist attacks, your obsession with IS materials and propaganda, your support for the former and current Caliphs of IS and the admissions you made in your record of interview.
14 Taken together, these matters demonstrate your commitment to, and support for IS, and establish that you are indeed a member of IS.^[25]
15 I note also that on 30 November 2020, after the charge 2 period, you wrote to your father and confessed to stabbing Kailee Mitz ‘by order of Islamic State’ explaining it was for the same reason as your previous criminal offending.

Applicable legal principles

16 Pursuant to s 16A(1) of the Crimes Act 1914 (Cth)(‘Crimes Act’), I must impose a sentence for each offence that is of a severity appropriate to all the circumstances of the offence. I must consider all matters that are relevant to your case, and that are known to this Court, including, but not limited to, the matters set out in s 16A(2) of the Crimes Act. I am also cognisant of the principles summarised in the case of R v Alou (No 4) (‘Alou’),^[26] regarding the approach to sentencing for terrorist offences.
17 Those principles were helpfully set out by Taylor J in her Honour’s sentencing remarks in 2019, so I will not repeat them here.^[27]

Matters personal to you^[28]

18 You are currently 28 years old. You were born in Dhaka, Bangladesh, one of two daughters to your parents who were happily married up until your mother’s death in 2015. Your father is the vice-president of an insurance company and still lives in Bangladesh. Your family were well-off financially and you were privately educated at British Curriculum schools.
19 Your sister is four years younger than you and she is in prison in Bangladesh. You have no family in Australia. Your father refuses to take phone calls from you, and you have not had contact with either your father or your sister in the past three years.
20 When you were growing up, your family followed conventional religious observances as Sunni Muslims. You were academically successful at secondary school and in tertiary studies and completed an Arts Degree.^[29] You lived at home during your years as a student with full financial support from your family. Indeed, you have never worked in paid employment. You had a respectful but distant relationship with your father and were closer to your mother.
21 From 2012 onwards, whilst at university, you began to pray more earnestly, pursuing religious instruction over the internet. By 2013, your pursuit of a more mainstream form of Islam transformed to an interest in Islamic jihad. You began seeking out information about IS.
22 Your mother died after a long illness in 2015 and you were grief stricken after her death. By then you had begun to follow Abu Bakr Baghdadi. You became aware that IS had made a call for women to engage in jihad. You responded to that call and became increasingly radicalised, culminating in your decision to travel to Australia in order to commit the offence that led to you being sentenced by Taylor J in 2019. Following the commission of that offence on 8 February 2018, you were arrested, and taken into custody and you have remained in custody ever since.
23 On 5 June 2019, after pleading guilty to the offence of engaging in a terrorist act, you were sentenced to 42 years imprisonment, with a non-parole period of 31 years and six months.^[30]
24 I will briefly describe the facts that led to that lengthy custodial sentence. On 1 February 2018 you arrived in Australia from Bangladesh on a student visa having arranged to stay with Homestay hosts in Melbourne. Eight days later, on 9 February 2018, you carried out a carefully planned and rehearsed attack on a Homestay host stabbing him once to the neck, in the name of violent jihad. That attack was performed when the victim was taking a nap with his 5 year old daughter. You brought a knife with you to Australia with the plan of carrying out an attack of the sort you enacted. The knife became embedded in the victim’s spine but fortunately the victim did not die. Your motivations for that offence were the same as for charge 1 on the current indictment. On the occasion currently before the Court, the terrorist act was the attempted stabbing of Ms Mitz to the neck with a pair of gardening shears, whereas previously the terrorist act was the stabbing of the male victim with a knife. The previous offence involved similar features such as the fact that you attacked an unsuspecting victim and the fact that you told police that you hoped the attack would cause the victim’s death. A distinguishing feature is that the injury that actually resulted from the offence in charge 1 on the current indictment was much less serious than the injury that resulted from your 2018 offending. Since you were in custody you had less control over the surrounding circumstances than at the time of the 2018 offence.
25 You have no other criminal history, nor any history of mental illness, or substance use.
26 After being sentenced by Taylor J you participated in the Court Integrated Services Program (‘CISP’), a de-radicalisation program at DPFC. This appears to have been unsuccessful. When you were interviewed by the Corrections Victoria Intelligence Unit you said that you had pretended to be de-radicalised.^[31] As was conceded by Mr Marsh, letters written by you reveal your lack of sincerity in participating in the CISP program.
27 Mr Marsh informed the Court that since the commission of the current offences, your management regime involves you being confined to your cell 23 hours a day, being only permitted to exercise while manacled and away from other prisoners.
28 You spend your time reading religious and secular works, and have shown an interest in psychology. In the evenings, you watch mainstream television programmes. Apart from the matters that bring you before this Court you believe yourself to be a polite and cooperative prisoner.
29 Nevertheless, when interviewed about the current offences, you said that if you had the chance to attack other prisoners you would do so. This together with your ongoing commitment to jihad, explains why you are being managed restrictively, under very onerous conditions.^[32]

Victim impact statement.

30 Kailee Mitz, a female prisoner at DPFC, is a Canadian national. She is 27 years old.^[33]
31 I have read Kailee Mitz’ victim impact statement tendered by the Crown at your plea hearing.^[34] I have had regard to the injury and harm you caused to her.^[35] Ms Mitz received five stitches to her left hand and experienced prolonged pain while recovering. Physically, she has largely recovered, although she considers she may have lost some strength in her hand. Nevertheless, your attack on Ms Mitz was very frightening and has had a lasting impact on her. The attack caused her to experience ongoing anxiety, nightmares and flashbacks.

Procedural history, Delay and Timing of Plea of Guilty^[36]

32 Charge 1 was laid on 18 November 2020, and charge 2 was laid on 22 June 2021. You pleaded guilty to both charges at the committal mention on 29 June 2021 and were committed to this Court for plea and sentence.^[37] You entered your plea of guilty at an early stage, entitling you to a significantly reduced sentence for the utilitarian value of your plea notwithstanding that it was not attended by any remorse. I will discuss that aspect a little later.^[38] I accept that charges of the kind you have pleaded guilty to can be complex and difficult to prosecute. Mr Sonnet conceded that charges of membership of a terrorist organisation can sometimes be hard to prove.
33 The utilitarian value of your plea of guilty is greater at this time than at other times, as a result of the COVID-19 pandemic.^[39] Your guilty plea has saved the State’s precious resources by avoiding the need for a trial at a time when Victorian courts are strained.

Your cooperation with law enforcement^[40]

34 I take into account in mitigation that the proof of both charges was facilitated by the admissions you made to police and correctional authorities.

Hardship in custody

35 You are geographically isolated from family members, but it also seems that your father does not seek out contact with you at any event. It is likely that you will remain under restrictive custodial conditions for the foreseeable future. This may result in hardship for you but little weight can be given to personal hardship in your case. Mr Marsh conceded, and I agree, that you have been the architect of your own misfortune. You set your own path by reoffending whilst under sentence in prison.

Nature and circumstances of your offending^[41]

36 The Crown emphasised the significance of the offending occurring whilst under sentence for engaging in a previous terrorist act and despite provision of the CISP program. Therefore, your prospects for rehabilitation were submitted to be very poor and greater recognition was required to be paid to the need for deterrence, just punishment, denunciation, and community protection. I agree with the Crown’s submission in this regard.

Charge 1

37 The gravity of the offence captured by charge 1 is reflected in the maximum sentence of life imprisonment. Your commission of an act of terrorism was motivated by a warped and violent ideology that is antithetical to the values of our democratic society. The high maximum penalty for acts of terrorism reflects that fact that the objective of such offences is to cause fear and suffering in the community for ideological purposes. The offence you perpetrated against Ms Mitz was inherently serious. Your Counsel conceded as much. Nevertheless, I must also consider the particular circumstances of the offending and the manner in which it was carried out.
38 Mr Marsh submitted that your offending was on the lower end of the spectrum of objective seriousness. He argued that far more serious examples of the offence could be postulated and that the actual harm you caused was not grave. Therefore, regardless of the intent you held when you attacked Ms Mitz, it was not apt to describe your attack on her as a very serious example of the offence. He argued that the difference between the harm you intended to cause and the harm you actually caused, was relevant to mitigation of penalty.
39 Mr Marsh accepted that you planned your attack, for at least eight months before carrying it out,^[42] and that this was an aggravating feature of your offending. The fact that you used a weapon to attack Ms Mitz, having waited for an opportunity to get your hands on one, was also conceded to be an aggravating factor.
40 In response to the submissions advanced by Mr Marsh, the Crown conceded that your offending was not in a category that would attract the maximum penalty, but the attack on Ms Mitz was submitted to be a very serious example of the offence of engaging in a terrorist act. Just because one could hypothesize worse examples of this offence did not mean that the seriousness of your offending was reduced.
41 In considering the competing arguments regarding the gravity of your offending on charge 1, I observe that it was a matter of good fortune that Ms Mitz reacted swiftly to your approach and avoided severe injury. You were quickly disarmed by other prisoners and then removed back to solitary confinement by officers. The physical injury you inflicted turned out to be relatively minor. I accept that this factor reduces the objective gravity of the offence to some degree.
42 However, there are significant aspects of the offending that I regard as aggravating circumstances. It is clear from your record of interview that you chose the gardening shears because you perceived they would cause a significant amount of harm.^[43] The materials before the Court also reveal that in your calendar in the month of October, in the lead up to your offending, you had written exhortations to yourself including the words ‘just go for it’ and ‘act now’.
43 You have admitted that when you approached Ms Mitz with the gardening shears you intended to stab and kill her in furtherance of your extremist ideology. Fortunately you were unsuccessful in achieving your aims. While Mr Marsh submitted that the attack was not prolonged or persistent, this is largely because you were stopped and disarmed by other prisoners.
44 The fact that you intended to cause serious injury or death for ideological purposes makes your offending more serious than a terrorist act aimed only at property damage. Kailee Mitz was vulnerable in the prison setting, having little control over her surroundings.^[44]
45 Further, while I accept that you only targeted one person, you selected Ms Mitz very carefully. You targeted her because she is a Canadian national and you perceived that an attack on a Canadian national would get more public exposure and have greater value as propaganda. This calculated approach aggravates the gravity of the offending. You admitted in your record of interview that you did all the thinking beforehand and were well composed and carried out a very cold blooded act.^[45]
46 You were well aware of the consequences of your actions. You acted for purely ideological reasons. You have not suffered an impoverished life and your moral culpability is not moderated by subjective factors such as a mental illness or reduced intellectual functioning. Mr Marsh suggested that your family background meant that you were unworldly or naïve, and that prior to your earlier terrorist offence you were enticed by online propaganda. Even if that were so, it does not explain your persistent adherence to the same ideology at the time of the current offences, despite having had time to reflect on your past actions and despite participating in the CISP program in prison.
47 Mr Marsh argued that since your offending occurred in a custodial setting, it did not, and was not capable of, causing the same degree of fear in the general community as an attack perpetrated whilst at large amongst the general public. He submitted that a preparatory offence aimed at causing widespread harm could potentially pose a greater threat to community safety than an offence of the kind your perpetrated.
48 Whilst I accept that the planned and actual impact of your offending may have been more confined within the prison setting, the moral culpability attaching to your intent is not reduced. You were in prison because of terrorism offending. As such, you were unable to have access to the broader community. You embarked on a strategy of careful planning, waiting for the chance to get hold of a potentially deadly weapon, and adopted various ruses to put yourself in a position to carry out the attack on Ms Mitz.
49 You crafted your offending to suit your situation, planning to kill a fellow inmate, whose nationality would call attention to your crime and your cause. In the circumstances that you were in, this was one of the most serious actions available for you to fulfill your ideological objectives.
50 It must also be accepted that offences committed whilst in custody are wont to cause significant fear within the prison community and distress to friends and relatives of prisoners.
51 In summary, I consider that the objective circumstances of the offending captured by charge 1, combine to make this a serious example of the offence, although the resulting degree of physical harm caused was relatively slight.

Charge 2

52 Mr Marsh submitted that your offending in respect of the charge of membership was at the lower end of objective seriousness for that offence because your membership of IS was ‘informal’. Whilst acknowledging on your behalf that the period of membership represented longer and more committed offending, Mr Marsh drew the Court’s attention to the absence of evidence that you received direct orders from IS (apart from the Fatwa) or that IS was even aware of your membership. You unilaterally declared allegiance to IS, and your actions were self-directed. The factual basis of the membership charge was contrasted with cases where a person is integral to the organised activities of a terrorist organisation.
53 On the other hand, the Crown highlighted that your membership continued for a period of 16 months showing persistent commitment to IS, despite de-radicalisation attempts. This was said to elevate the seriousness of the offence along with your claim in your record of interview to being a ‘soldier of Islamic State.’
54 I regard the facts founding the membership offence as supporting a finding that this is a low to mid-range example of the offence. The fact that you have remained a steadfast supporter of Islamic State over a lengthy period and that you have been willing to extol the benefits of your ideology to others, elevates the objective seriousness of the offence. However, I accept that the informal and self-directed nature of your membership makes it a much less serious example than in a case involving active participation in the organised activities of a terrorist organisation.^[46]

Punishment,^[47] Deterrence,^[48] Denunciation, and Community protection

55 As mentioned in Alou,^[49] the primary considerations on sentence for terrorist offences are protection of the community, punishment of the offender, denunciation of the offending and both specific and general deterrence.^[50]
56 The sentence to be imposed, especially in respect of charge 1, is aimed at deterring you from engaging in further offending. The fact that this is the second time you have engaged in this kind of offending makes specific deterrence particularly important in your case, as does the fact that you have no remorse.
57 Regarding charge 2, the offence of membership of a terrorist organisation captures continuing offending as a result of ongoing self-identification by you as a soldier of IS and actions in performance of that attitude. Justice Taylor observed when sentencing you in 2019 that: ‘There is no evidence that you have renounced or are close to renouncing the beliefs that led you to commit this offence. On the contrary you are defiant.’^[51] Those same words apply with equal force today.
58 You must be punished to an extent that reflects the gravity of each offence on the indictment. You remain committed to your extremist ideology, and appear even more radicalised.^[52] Therefore, community protection takes on greater importance in sentencing you.^[53] In sentencing you, the Court denounces your offending and seeks to deter you and others from similar offending. These factors have all played an important role in the sentence I am about to impose.

Contrition^[54] and Prospects for rehabilitation^[55]

59 The authorities confirm that in sentencing you for offending of the kind captured by charge 1, I must give less weight to favourable subjective circumstances.^[56] At any event, in your case there are few favourable subjective matters that you can point to in respect of either charge 1 or charge 2.
60 Mr Marsh conceded that your prospects of rehabilitation must be viewed as poorer than at the time you were sentenced in 2019, given your adherence to your radical beliefs despite having been detained in onerous conditions and having completed the CISP program. It was not disputed that you have no contrition for your actions. On the contrary, you are proud of your crimes.
61 Regarding charge 2, the facts founding that charge are redolent of your ideological fanaticism. Your prolonged commitment to IS, the fact you consider your allegiance to IS part of your identity,^[57] and your willingness to act on those beliefs, makes it appear unlikely that you will change your attitude and beliefs.
62 However, Mr Marsh referred to your ongoing pursuit of self-education in prison. This was suggested to show a willingness to engage with new ideas. Relying on this, combined with your age and the length of the sentence you face, Mr Marsh submitted the Court was precluded from viewing you as being incapable of being deradicalized at some time in the future.
63 Mr Marsh argued that, in light of the length of your current sentence the Court should find there is a possibility that your views and beliefs may change over the years ahead so that the Court should preserve the chance of a useful life post-release.
64 I consider that the extent of your fanaticism, despite participation in CISP, does not bode well for your long-term prospects of rehabilitation. However, I accept that you are still relatively young and that it remains feasible that your views may change over the years ahead.
65 Therefore, having regard to all of the circumstances of your case, I assess your prospects of rehabilitation as very poor, but perhaps not non-existent.

Comparative Cases and Current Sentencing Practice

66 I have read and considered the cases noted in the Crown’s table of comparative cases and I have also taken note of the approach of Taylor J to current sentencing practice when she sentenced you in 2019.^[58] I accept that preparatory offences or offences of complicity which involve an intention that a terrorist act occur may provide some useful guidance. Whilst I must pay regard to current sentencing practice, the task of sentencing you involves an unusual constellation of factors. I also note that I must exercise caution in identifying a sentencing range by reference to previous sentencing decisions, as comparable cases do not set ‘boundaries’ that bind Courts. Current sentencing practice is just one factor to be considered in the sentencing exercise.^[59]
67 You are currently serving a very lengthy sentence for engaging in a terrorist act. Your commission of another terrorist act marks you out as a person for whom current sentencing practice can only provide limited assistance.
68 While you had hoped to attract a great deal of publicity from your attack on Ms Mitz, your physical aims largely missed their mark and the outcome you planned did not eventuate. Nonetheless, it is plain that your intent in committing the charge 1 offence was to seriously injure or kill Ms Mitz. This distinguishes your intent from terrorist offences where only property damage is contemplated.^[60]
69 In considering the comparative cases put forward by the Crown, I consider that some useful comparisons can be drawn between the intent behind your crime and that of Sevdet Besim.^[61] The cases of Omar Al- Kutobi and Mohammed Kiad^[62] also have some comparative value. I have kept in mind that each of the aforementioned offenders committed preparatory offences whereas your offending in charge 1 involved a completed offence, albeit the attack did not play out as you had planned.
70 Regarding the membership charge, the case of Abdirahman-Khalif v The Queen^[63] is a useful comparator, although that offender was younger than you at the time of the offence and seemingly had better prospects for rehabilitation.

Totality and Avoiding a Crushing Sentence

71 I am required to apply the principle of totality in imposing sentences for each of the charges. I must ensure that the individual sentences for each offence, and the overall structure of the sentence, is just and appropriate to the totality of your offending, whilst avoiding imposing a crushing sentence on you.
72 Having regard to the seriousness of the charges and your prior offending, I am satisfied that no sentence other than imprisonment is appropriate for each offence.^[64] However, I have taken account of your counsel’s submission, with which the Crown agreed, that I should not impose a sentence on you that extinguishes all hope of release.
73 In applying the principle of totality, I have considered whether cumulation is warranted between the sentences for charges 1 and 2. Mr Sonnet conceded at the plea hearing that there was significant factual commonality between charges 1 and 2. Mr Marsh pointed to the common threads between the offending on charge 1 and your membership of IS. Your commission of the terrorist act was done in the name of IS, and in accordance with what you perceived to be their aims and orders. This is clear from your confession to your father in your letter to him dated 30 November 2021. It is also clear from your record of interview on 30 October 2020, where you explained that having given your allegiance to the new caliph of IS, you have to do whatever he says.^[65] The evidence relied on by the Crown in support of both charges^[66] shows your ongoing allegiance to that organisation and your performance of the terrorist act as a result of that allegiance, rather than because of any personal grievance against Ms Mitz. Therefore, in light of the factual overlap between the two charges, and applying the principle of totality to the overall structure of your sentence, I propose to order that the sentence on charge 2 be served wholly concurrently with the sentence on charge 1.
74 In applying the principle of totality I must also have regard to the sentence you are currently undergoing and determine the extent to which the sentences I impose today ought to be served cumulatively upon that sentence.^[67] In undertaking this exercise, I have taken account of the fact that you are currently serving a very lengthy sentence.
75 Whilst further punishment is required in respect of the offences before the Court, I have paid regard to your age and the expiry date of the sentences you are currently undergoing. Weighing all of the abovementioned matters I consider it appropriate that half of the total effective sentence to be imposed today be served cumulatively upon the sentence you are currently undergoing.
76 I consider that the total effective sentence I am about to impose is appropriate to your overall criminality.
77 I have determined that it is appropriate to fix a new non-parole period,^[68] noting that it was not suggested by the Crown that this is a case where the court should decline to do so. The principle of totality is also relevant to the length of the non-parole period to be imposed. In fixing the new non-parole period, I have had regard to all relevant circumstances that bear on that issue, including your prior conviction and the sentence that was imposed for that offence along with the nature and circumstances of your current offences.
78 In fixing the non-parole period, I am obliged to impose a period that is at least three quarters of the length of your head sentence.^[69] This is because the offences for which you are about to be sentenced are ‘minimum non-parole offences’ within the meaning of the Crimes Act, as was the previous offence for which you were sentenced in 2019.^[70] The sentence you are currently serving is very lengthy, and it will be further extended by the sentences I am about to impose. I have had regard to the age you will be before being eligible for a grant of parole. I bear in mind that you may ultimately have to serve the entirety of your sentence if parole is not granted. I consider that the non- parole period I have fixed preserves the possibility of a useful life beyond release, whilst addressing the overall criminality of your offending.

Sentence

79 Momena Shoma, on the charge of engaging in a terrorist act, you are convicted and sentenced to 12 years imprisonment.
80 On the charge of membership of a terrorist organisation you are convicted and sentenced to 2 years imprisonment. This sentence is to be served wholly concurrently with the sentence I have just imposed on charge 1.
81 Therefore, your total effective sentence on charges 1 and 2 is 12 years imprisonment.
82 It is my intention that 6 years of this sentence be cumulative on the sentence you are currently undergoing. I therefore direct that the sentence of 12 years is to commence six years before the expiry of the sentence of 42 years imposed by Taylor J. Taylor J’s sentence expires 9 February 2060.^[71] Therefore the sentences on charges 1 and 2 commence on 9 February 2054.
83 Pursuant to s 19AD(2)(e) of the Crimes Act, I will fix a new non-parole period in respect of all Federal sentences you are to serve or complete. Pursuant to s 19AG of the Act, the non-parole period must be not less than three quarters of the length of the aggregate of the Federal sentences you must serve, as they are all minimum non-parole period offences.^[72] The aggregate of those sentences, or your new head sentence, is 48 years.^[73] I fix a new non-parole period of 36 years imprisonment. This is three quarters the length of the new head sentence. Pursuant to s 19AD(3), this new non-parole period supersedes the existing non-parole period of 31 years that was fixed by Taylor J.
84 Because you were serving another custodial sentence for the entire period of your remand for these offences, there is no referable period of pre-sentence detention that can be reckoned as having already been served. For the avoidance of any doubt, the period of pre-sentence detention credited by Taylor J on your 2019 sentence still applies.
85 Regarding s 6AAA I state that but for your plea of guilty to each charge, I would have imposed a sentence of 16 years imprisonment on charge 1 and a sentence of 3 years imprisonment on charge 2.

Explanation under s 16F of the Crimes Act

86 The sentence I have just imposed requires you to serve a term of imprisonment not less than 36 years, and if a parole order is made after that period, you will be required to complete a period of service in the community, called the parole period, to complete your sentence. During any parole period, you would be subject to various conditions. If you failed to comply with those conditions, you could be returned to custody to complete your sentence.

Warning regarding continuing detention order

87 Lastly, I must warn you^[74] that, because you have now been convicted of an offence against s 105A.3(1)(a) of the Code, an application may be brought under Division 105A of the Criminal Code for a continuing detention order, requiring you to be detained in prison after the end of your sentence for this offence, or at the end of any later sentence if you are continuously detained in custody and would otherwise be released into the community.
88 I formally direct that these reasons be entered into the records of the Court.^[75]
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^[1] Criminal Code Act 1995 (Cth) (‘the Code’), s 101.1.

^[2] The Code, s 102.3.

^[3] R v Shoma [2019] VSC 367.

^[4] ‘Summary of Prosecution Opening for Plea’ dated 30 July 2021 (‘Plea Opening’).

^[5] ‘Prosecution Submissions on Sentence’ dated 30 August 2021 (‘Crown Submissions’).

^[6] ‘Comparative cases: sentences for offences against ss 101.1 (act of terrorism) and 101.6 (acts in preparation for a terrorist act) of the Criminal Code’ filed 31 August 2021 (‘Comparative Cases Table’).

^[7] Dated 16 August 2021.

^[8] ‘Submissions on Plea’ dated 11 August 2021 (‘Defence Submissions’).

^[9] Pursuant to the Criminal Code (Terrorist Organisation-Islamic State) Regulations 2017 (Cth) and the Criminal Code (Terrorist Organisation – Islamic State) Regulations 2020.

^[10] Shaykh Abu Muhammad Al-Adani Ash-Shami.

^[11] A picture of those shears was tendered by the Crown at the plea hearing (EXH P6).

^[12] Acting General Manager Candace Vella.

^[13] Record of Interview 30 October 2020 Q and A 378, Plea Opening, 6.

^[14] Adam Brookman.

^[15] Plea Opening, [34].

^[16] Plea Opening, [36].

^[17] At that time, Abu Ibrahim al-Hashimi al-Quarashi.

^[18] Plea Opening, [37].

^[19] Dated 31 December 2019, 9 January 2020, 30 April 2020, 31 May 2020, Plea Opening, [39], [41], [42], [44].

^[20] Plea Opening, [39].

^[21] It was not contended by the Crown that these letters were actually forwarded to her after being intercepted by prison authorities.

^[22] Which there you called ‘the State’.

^[23] Plea Opening, [40].

^[24] Plea Opening, [41], [42], [44].

^[25] Membership of a terrorist organisation can be formal or informal according to section 102.1 of the Criminal Code. See also The Queen v Abdirahman-Khalif [2020] HCA 36.

^[26] [2018] NSWSC 221

^[27] [2019] VSC 367, [54].

^[28] Including character, antecedents, age, means and physical or mental condition both at the time of the offence and since being arrested and placed on remand per Crimes Act 1914 (Cth)(‘Crimes Act’) s 16A(2)(m).

^[29] After completion of a Bachelor’s Degree in Arts, majoring in Linguistics and the English language, in 2015, a Masters in Linguistics was commenced in 2015, but not completed.

^[30] R v Shoma [2019] VSC 367.

^[31] Interview dated 6 November 2020.

^[32] Defence Submissions, [35].

^[33] Crimes Act s 16A(2)(d).

^[34] Kailee did not wish for the statement to be read aloud in Court.

^[35] Crimes Act s 16A(2)(e), (ea).

^[36] Crimes Act s 16A(2)(g).

^[37] On the basis of the Hand Up Brief.

^[38] I note the case of DPP v Thomas [2016] VSCA 237, cited by the Court of Appeal in Worboyes v The Queen [2021] VSCA 169.

^[39] Worboyes v the Queen [2021] VSCA 169; Trent Chenhall v The Queen [2021] VSCA 175, [35].

^[40] Crimes Act s 16A(2)(h).

^[41] Crimes Act s 16A(2)(a).

^[42] Defence Written Submissions, [7].

^[43] Record of Interview Question and Answer, 95 and 108 of the Plea Opening, 11.

^[44] She was in a part of the prison not readily accessible by prison staff, increasing her vulnerability.

^[45] Record of interview Question and Answer, 72, Plea Opening, [31(c)].

^[46] I note that in the case of R v Benbrika & Ors [2009] VSC 21; Benbrika & Ors v the Queen [2010] VSCA 281, Mr Benbrika (re-sentenced on appeal to 5 years imprisonment on the charge of membership of a terrorist organisation) was considered both a member and a director of a terrorist organisation, and through that organisation he preached to others about violent jihad. His co-accused, who were members of the organisation that Benbrika led, but not directors of that organisation, were all re-sentenced on appeal to 4 years and 6 months imprisonment for their respective membership charges. In R v Abdirahman-Khalif [2020] HCA 36 (where the initial conviction was appealed but then re-instated by the High Court in 2020), the offender was sentenced to three years imprisonment for a single charge of membership of a terrorist organisation. Her offending was comprised of, amongst other things, possessing and accessing extremist material, and pledging allegiance to IS by reciting a pledge in her home.

^[47] Crimes Act, s 16A(2)(k).

^[48] Crimes Act, ss 16A(2)(ja), 16A(2)(j).

^[49] [2018] NSWSC 221.

^[50] Ibid [165].

^[51] [2019] VSC 367, [89].

^[52] As admitted in Record of Interview on 30 October 2020 Question and Answer, 566, Plea Opening 4, [24(x)].

^[53] R v Lodhi [82]-[83], R v Elomar and Ors (2010) 264 ALR 759; [2010] NSWSC 10 at [93]; Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 at 591.

^[54] Crimes Act s 16A(2)(f).

^[55] Crimes Act s 16A(2)(n).

^[56] R v Alou [2018] NSWSC 221, [166].

^[57] Record of Interview 13 November 2020, Question and Answer 209-210, Plea Opening [31](o),(p): “When asked “O.K. So you’ve put that up in your room because it is the Islamic State flag. Is that right?” – Accused replied “Yeah, yeah. When asked “And what was the reason for doing that?” – Accused replied “It's my identity. It's, you know, my nation, my flag. Obviously I'm gunna put it up. It's a reminder of who I am.”

^[58] I should note that I have taken account of sentencing practice for Federal offences in other jurisdictions.

^[59] See: House v R [2021] VSC 319, [33]–[36].

^[60] Such as the intentions of the offenders in R v Mohamed, Chaarani & Moukhaiber [2019] VSC 498, who were found guilty by a jury of engaging in a terrorist act and attempting to engage in a terrorist act, and who had intended to destroy a mosque by setting fire to it (two of the accused in that case were sentenced to 22 years imprisonment with a non-parole period of 17 years, and the other sentenced to 16 years imprisonment with a non-parole period of 12 years). They succeeded in causing substantial damage to the mosque but did not succeed in destroying it.

^[61] DPP (Cth) v Besim; DPP (Cth) v MHK [2017] VSCA 180. Besim was sentenced to 10 years imprisonment with a non-parole period of 7 years and six months for doing acts in preparation for or planning a terrorist act. A Crown appeal as to inadequacy of the sentence was upheld and he was re-sentenced by the Victorian Court of Appeal to 14 years imprisonment with a non-parole period of 10 years and six months. Besim had pleaded guilty to planning to kill a police officer during Anzac Day celebrations by driving a car into the police officer and then beheading the victim with a knife.

^[62] R v Al- Kutobi: R v Kiad [2016} NSWSC 1760. The two offenders conspired to carry out acts in preparation for , or planning a terrorist act. They spoke about planning to commit a stabbing to avenge Islamic State. They had purchased a large hunting knife in preparation, along with other items. They were each sentenced to 20 years imprisonment with a non-parole period of 15 years. Each offender pleaded guilty 5 days before their trial.

^[63] [2020] HCA 36; sentenced to 3 years imprisonment with a non-parole period of 2 years and 3 months, upon being found guilty after a trial(conviction quashed by Full Court in South Australia but reinstated by the High Court.)

^[64] Crimes Act s 17A.

^[65] Record of Interview on 30 October 2020, Question and Answer 367, Plea Opening, [24(f)].

^[66] I note in particular what you said in your record of interview, and the letters you wrote to Adam Brookman, your sister, and your father, as well as the notes in your diary.

^[67] Crimes Act, s 16B.

^[68] Crimes Act, s 19AD(2).

^[69] Crimes Act, s 19AG(2)(b).

^[70] Crimes Act, s 19AG(1): a ‘terrorism offence’ is a minimum non-parole offence. The definition of ‘terrorism offence’ at s 3 captures Charges 1 and 2 because they are offences against Part 5.3 of the Criminal Code, as was the single charge for which you were sentenced by Taylor J in 2019.

^[71] When imposing sentence on your on 5 June 2018, Taylor J credited 481 days as having already been served. This was the entire period you were in custody between your arrest on 9 February 2018 and 5 June 2019 when Taylor J’s sentence commenced. Accordingly, your 42 year sentence effectively began on 9 February 2018.

^[72] Crimes Act s 19AG(1)(b), being that they are ‘terrorism offences’.

^[73] Taken to have commenced on 9 February 2018.

^[74] Pursuant to s 105A.23 of the Criminal Code.

^[75] Pursuant to s 17A(2)(b) of the Crimes Act.