Regina (C'Wealth) v Elomar & Ors [2010] NSWSC 10 (15 February 2010)

Last Updated: 18 February 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Regina (C'Wealth) v Elomar & Ors [2010] NSWSC 10


JURISDICTION:
Criminal

FILE NUMBER(S):
2007/2399001
2007/2400001
2007/2392001
2007/2398001
2007/2452001

HEARING DATE(S):
14/12; 16/12; 17/2; 18/12; 19/12/2009

JUDGMENT DATE:
15 February 2010

PARTIES:
Regina (C'Wealth) v Mohamed Ali ELOMAR
Rgeina (C'Wealth) v Abdul Rakib HASAN
Regina (C'Wealth) v Khaled CHEIKHO
Regina (C'Wealth) v Moustafa CHEIKHO
Regina (C'Wealth) v Mohammed Omar JAMAL

JUDGMENT OF:
Whealy J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
R Maidment SC; G Bellew SC; C O'Donnell; S McNaughton - Crown
D Dalton SC; E Ozen - Offender Elomar
D Yehia SC; S Beckett - Offender Hasan
C Waterstreet; P Lange - Offender K Cheikho
R Button SC; I Nash - Offender M Cheikho
G Scragg; D Carroll - Offender Jamal

SOLICITORS:
C'Wealth DPP - Crown
Nyman Gibson Stewart - Offender Elomar
Legal Aid Commission - Offender Hasan
Lawyers Corporation Ltd - Offender K Cheikho
William O'Brien & Ross Hudson Solicitors - Offender M Cheikho
Michael Doughty Solicitors - Offender Jamal


CATCHWORDS:
CRIMINAL LAW - Sentence after trial - conspiracy to do acts in preparation for a terrorist act - Commonwealth offence - Terrorism offence - Principles applicable to sentencing - Application of parity principles by analogy - Objectively grave offence - not far short of most serious case - Absence of remorse and contrition - Absence of withdrawal from extremist convictions.

LEGISLATION CITED:
Criminal Code Act (Cth)
Crimes Act 1914 (Cth)
Anti-Terrorism Act 2005

CATEGORY:
Sentence

CASES CITED:
Tyler v R [2007] NSWCCA 247; [2007] 173 A Crim R 458
Diesing v R [2007] NSWCCA 326
Regina v Lodhi [2006] NSWSC 691 at [79-81]
Regina v Touma [2008] NSWSC 1475 24 October 2008
Faheem Lodhi v Regina [2007] NSWCCA 360 at [92-93] per Spigelman CJ
R v Martin (1999) 1 Cr App R (477 at 480)
R v Araya [2005] NSWCCA 283
Van Haltren v R [2008] NSWCCA 274

TEXTS CITED:


DECISION:
MOHAMED ALI ELOMAR, I sentence you to a term of imprisonment of 28 years commencing on 8 November 2005 and expiring on 7 November 2033. I fix a non-parole period of 21 years in respect of that sentence to commence on 8 Novemner 2005 and to expire on 7 November 2026. The period of 21 years is the minimum period the offender must serve in custody. KHALED CHEIKHO, I sentence you to a term of imprisonment of 27 years commencing on 8 November 2005 and expiring on 7 November 2032. I fix a non-parole period of 20 years and three months in respect of that sentence. The non-parole period is to commence on 8 November 2005 and is to expire on 7 February 2026. The period of 20 years and three months is the minimum period the offender must serve in custody. ABDUL RAKIB HASAN, I sentence you to a term of imprisonment of 26 years commencing on 8 November 2005 and expiring on 7 November 2031. I fix a non-parole period of 19 years and six months in respect to that sentence. The non-parole is to commence on 8 November 2005 and to expire on 7 May 2025. The period of 19 years and six months is the minimum period the offender must serve in custody. MOUSTAFA CHEIKHO, I sentence you to a term of imprisonment of 26 years commencing on 21 December 2005 and expiring on 20 December 2031. I fix a non-parole period of 19 years and six months in respect of that sentence. The non-parole period is to commence on 8 November 2005 and is to expire on 7 May 2025. The period of 19 years and six months is the minimum period the pffender must serve in custody. MOHAMMED OMAR JAMAL, I sentence you to a term of imprisonment of 23 years commencing on 21 December 2005 and expiring on 20 December 2028. I fix a non-parole period of 17 years and three months. The non-parole period is to commence on 21 December 2005 and is to expire on 20 March 2023. The non-parole period of 17 years and three months is the minimum period the offender must serve in custody.



JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

CRIMINAL LIST

WHEALY J

MONDAY 15 February 2010

2007/2399001 - Regina v Mohamed Ali ELOMAR

2007/2400001 - Regina v Abdul Rakib HASAN

2007/2395001 - Regina v Khaled CHEIKHO

2007/2398001 - Regina v Moustafa CHEIKHO

2007/2452001 - Regina v Mohammed Omar JAMAL

SENTENCE

1 HIS HONOUR: On 3 November 2008, five men pleaded not guilty to an indictment alleging participation in a conspiracy to do acts in preparation for a terrorist act or acts. A joint trial then commenced lasting almost 11 months. On 16 October 2009, each man was found guilty by the jury of the single count in the indictment.

2 The five men were: Mohamed Ali Elomar, Abdul Rakib Hasan, Khaled Cheikho, Moustafa Cheikho and Mohammed Omar Jamal. For the purposes of these sentencing decisions, I will refer to the men, collectively or individually, as the offender or offenders. I will, in addition, refer to them by their names where it is more appropriate to do so.

3 Sentencing submissions were made during the week commencing 14 December 2009. Those submissions concluded on Friday 18 December 2009. The sentencing proceedings in relation to each offender was then stood over until today for pronouncement of sentence.

4 The offence in respect of which each offender has been convicted carries with it a maximum penalty of life imprisonment.

Background to the present trial

5 Each offender is one of nine men who were originally arrested and charged in late 2005 with a series of terrorism related offences. In the Supreme Court, an indictment was presented against each of the nine men in May 2007 alleging that each offender had conspired with each other to do acts in preparation for a terrorist act or acts. Each of the nine men on that date pleaded not guilty to the charge. Each had been committed for trial at an earlier date following a lengthy committal hearing.

6 The trial of the conspiracy charge against the nine accused was set down for hearing to commence in late February 2008. It was apparent at that time that several months might be required for adjudication upon pre-trial matters. As it happened, those pre-trial procedures lasted much longer than anticipated. Some eight months were to elapse before the trial proper could proceed. It was not until 27 October 2008 that the preliminary processes relating to the selection and empanelment of the jury were able to commence. Those procedures themselves, as might be anticipated, took some little time and the jury empanelment proper did not take place until 3 November 2008.

7 Shortly prior to the commencement of the trial before the jury, three of the original nine accused had pleaded guilty to charges contained in fresh indictments presented against each of them. Mazen Touma pleaded guilty to four charges contained in an indictment presented against him on 12 September 2008. An agreement had been reached between the Crown and the representatives for Touma in this regard. The Crown had indicated that, in view of Touma’s willingness to plead guilty to the four charges in the new indictment, the Director of Public Prosecutions would not proceed further against him in relation to the more serious conspiracy charge.

8 On 24 October 2008, Mirsad Mulahalilovic, one of those charged originally as a co-conspirator, pleaded guilty to a single charge contained in a fresh indictment presented against him on that day. The new charge was that Mulahalilovic, on or about 19 August 2005, possessed a small quantity of firearm ammunition, which was connected with the preparation for a terrorist act or acts, being reckless as to the connection.

9 On 3 November 2008, a third man, whom I shall simply refer to as “B” pleaded guilty to four charges contained in a fresh indictment presented against him on that day. Once again, as with the other two men, the Crown indicated that it would not proceed against B in relation to the conspiracy charge in the light of his decision to plead to the matters contained in the fresh indictment.

10 Finally, it is necessary to mention that a fourth man, Khaled Sharrouf, originally charged as one of the co-conspirators, had been found unfit to plead. It was common ground that he had been afflicted by a serious mental disorder both at the time of the commission of the offence and during 2008. This led to the Court making an order that he be separately tried. That order was made on 15 September 2008. In 2009, however, Sharrouf appeared to have recovered his health sufficiently to be available to face trial. By that time, it was common ground between his legal representatives and the Crown that he was, in fact, fit to plead and face trial. As a result of negotiations between his representatives and the Crown, Sharrouf pleaded guilty to a fresh charge on 3 August 2009. The offence charged was that he possessed some six clocks and 140 batteries, which were connected with the preparation for a terrorist act, he knowing of that connection. It was an offence, which carried a maximum penalty of imprisonment for 15 years. As before, the Commonwealth Director of Public Prosecutions accepted Sharrouf’s plea to this lesser charge on the basis that there would be no continuation of the conspiracy charge against him.

11 Each of the persons who pleaded guilty was sentenced in relation to the offence or offences to which he had pleaded. Touma was sentenced in late 2008. The other three were sentenced on various dates in 2009. The remaining five men who had been originally charged with the conspiracy offence remained resolute and adhered to their “not guilty” pleas. Consequently, the jury trial which began in late 2008 required the resolution of a number of issues at trial involving the essential elements of the conspiracy charge in the light of the individual pleas of not guilty. Those issues, as I shall explain, were to be resolved by the jury’s verdict in October 2009 in favour of the Crown.

Issues at trial

12 The principal issues at trial may be simply stated: First, during the relevant period, did a conspiracy of the kind alleged by the Crown exist? Secondly, if it did, was each offender a participant in that conspiracy? The Crown carried the onus of proving each of those matters beyond reasonable doubt. The essential defence raised by each offender was that, even if such a conspiracy were in existence, which was denied, he was not a party to it. Others may have been, but he was not.

13 As part of the resolution of these simple and stark issues, the Crown undertook and bore as well the more extensive burden of proving beyond reasonable doubt that each offender held the necessary intentions required by the definition of “a terrorist act” contained in the Criminal Code Act (Cth). To succeed, the Crown had to establish each of these intentions on the part of an offender so as to satisfy the jury that the criminal agreement into which he had entered was one to do acts in preparation for a terrorist act or acts.

14 The jury’s verdict in the case against each offender meant that it had been satisfied beyond reasonable doubt that a conspiracy to do acts in preparation for a terrorist act was in existence at the relevant time. Further, it must have been satisfied beyond reasonable doubt that each offender was a willing participant in that agreement. Further, the verdict necessarily meant that the jury was satisfied that, first, each offender intended that acts in preparation would be for an action or threat of action to be carried out or threatened in Australia involving either or both the detonation of one or more explosive devices, or the use of firearms. Secondly, the jury must have been satisfied to the requisite degree that the action or threat of action would itself carry the intention or object of advancing the cause of violent jihad so as to coerce or influence by intimidation the Australian Government to alter or abandon its policies of support for the United States and other western powers in Middle Eastern and other areas involving Muslims. Thirdly, each offender must have intended that the acts in preparation would be for an action or threat of action which, if carried out, would have caused at the very least serious damage to property and would have carried the further risk of physical harm to members of the public, danger to the lives of the public or a section of the public, and the creation of a serious risk to the health or safety of the public or a section of it. Each of these intentions was necessarily established beyond reasonable doubt to the satisfaction of the jury. That is to be recognised in the jury verdict against each offender.

The nature and scope of the conspiracy

15 While the assessment of the criminality of each of the offenders will not overlook, as a relevant matter, his particular act or acts in furtherance of the conspiracy, it is clear that the criminality of an offender in a conspiracy case goes well beyond the mere recognition of his or her actions and role in the enterprise. The primary aspect of the assessment of individual criminality is well understood to be on a broader basis. The gravamen of the offence – the essential feature – is the agreement to participate in organised criminal activity. The sentence must reflect the organisational nature of the conspiracy rather than by confining the sentencing discretion to the identification of the role of an offender with specific reference to the physical acts that he undertook (Tyler v R [2007] NSWCCA 247; [2007] 173 A Crim R 458; Diesing v R [2007] NSWCCA 326). It is necessary, as a consequence, to examine the nature and scope of the conspiracy and to assess on a basis, generally common to all the participants, the level of criminality exhibited by the conspiracy itself. It needs to be kept in mind that the jury’s verdict reflects the finding that each of the offenders in the present matter was a willing participant in an organised criminal enterprise that had specific criminal objects in view as the outcome of the enterprise. I turn now to examine these matters in some degree of detail.

Duration of the conspiracy

16 The indictment charged each offender on the basis that the conspiracy to do acts in preparation for a terrorist act or acts was in existence between July 2004 and 8 November 2005. Although it is always difficult in cases such as this to pin point the commencement date of a conspiracy, the Crown in its final reply submissions on sentence, suggested that the Court might safely infer beyond reasonable doubt that the conspiracy existed at least between 4 May 2005 and 8 November 2005. In my opinion, however, the evidence establishes beyond reasonable doubt that the conspiracy was on foot at least by January/February 2005. There is evidence that might suggest an earlier commencement time in the previous year. But it is sufficient for the purposes of the sentence to find beyond reasonable doubt that the conspiracy was certainly on foot, as I have said, by January/February 2005 and that it continued until about the time of the arrest of the offenders on 8 November 2005.

Ordering/collection of ammunition

Ordering/collection of ammunition – Nature and scope of conspiracy

17 On 27 January 2005, Elomar paid $2,100 deposit for the purchase of 10,000 rounds of 7.62 x .39 ammunition. I am satisfied beyond reasonable doubt that this ammunition, when it was acquired, was to be used in connection with the conspiracy. 1,000 rounds of the ammunition were collected by Elomar from the Horsley Park Gun Shop on 30 March 2005. The balance of the 10,000 rounds were collected on 26 May 2005. As it happened, Elomar was under suspicion. A search warrant was executed at his home on 27 June 2005 during which 11,755 rounds of 7.62 x .39 ammunition was seized. Also taken were 12 different types of firearms including rifles and pistols. These were all licensed. The only weapon found at Elomar’s place that would be capable of firing the assault type ammunition I have mentioned was a Zastava rifle. I am satisfied beyond reasonable doubt that the ammunition was not to be used in this bolt-action rifle but was to have been used in other automatic or semi-automatic weaponry yet to be acquired. If it was in existence, it has never been located by the authorities.

18 During the period April to June 2005, another of the men connected with the enterprise, Mazen Touma, had been involved in the purchase of a large quantity of 7.62 x .39 ammunition. For example, on 1 April Touma arranged for the purchase of some 8,000 rounds of the ammunition. This purchase was to be made through an intermediary of Touma. His name was George Lord. The collection of 7,500 of the 8,000 rounds took place on Friday 3 June 2005. On that day, the police seized the 7,500 rounds from a van parked near George Lord’s house. It is clear that Touma intended to make a delivery of the ammunition on the afternoon of 3 June 2005 but the police seizure interrupted, frustrated and brought to an end these plans. The evidence did not indicate the identity of the person or persons to whom delivery was to be made. However, there were a series of telephone calls between Khaled Cheikho and Touma between April and June 2005. These calls culminated in a series of calls on 2 and 3 June 2005 between the two men. I am satisfied beyond reasonable doubt that Khaled Cheikho was aware of and complicit in the obtaining by Touma of 7,500 rounds of ammunition which were then seized by the police on 3 June 2005. The ammunition was suitable for use in an assault rifle such as that known as an AK-47. I am satisfied beyond reasonable doubt that the acquisition and delivery of the ammunition was to be for the purpose of the conspiracy. I shall later deal with the Crown submission, disputed by Mr Waterstreet, that Khaled Cheikho was a co-ordinator for this anticipated supply.

19 The seizure of the ammunition from Elomar and from Touma’s van was plainly a set back for the conspiracy. It is not insignificant to note that the man “B” (who had assisted Touma in connection with the collection of the ammunition from George Lord) made enquiries of his own in late July 2005 concerning the possible acquisition of substantial quantities of 7.62 x .39 calibre ammunition. These enquiries, it appears, were not followed through to completion. “B” was to make a number of further enquiries about the acquisition of ammunition during the period August to late October – early November 2005. As will be seen later, Elomar had a special relationship with “B” in the latter part of 2005. He was, in effect, “running” “B” in relation to certain activities in connection with the conspiracy.

Purchase of laboratory equipment

20 Of greater significance for the purposes of understanding the nature and scope of the conspiracy were the attempts by some of the offenders, and/or persons associated with them, to obtain laboratory equipment and chemicals that might be used in the manufacture of an explosive device or devices. One of the associates of a number of the offenders was a Melbourne cleric known throughout the trial as Sheikh Bakr. He was a person who espoused beliefs which were unequivocally extremist and which supported the prospect of violent jihad in Australia. Hasan, Elomar and Moustafa Cheikho had met Sheikh Bakr as early as August 2004. The Sheikh appears to have been particularly close to Khaled Sharrouf. He also appears to have been the spiritual leader of a number of Melbourne men of a similar extremist bent. These included men known as Aimen, Ahmed and Fadl. On 23 February 2005 Hasan and Khaled Sharrouf visited Sheikh Bakr and Aimen in Melbourne. There was a mention, during the discussion, of items of laboratory equipment contained in the Haines Secondary School catalogue. These discussions were caught on a listening device. On 26 February 2005, a false name telephone service (the Eviki Soto Telephone Service) was activated. A handset used by Hasan was associated with this service. The false name details of Eviki Soto corresponded with Hasan’s birth date. This phone was used to communicate with the man Aimen after 23 February 2005. It was also to be used in connection with a camping trip to be held in a remote location in New South Wales (“Curranyalpa”).

21 On 4 May 2005, Elomar, Hasan and Sharrouf travelled from Sydney to Melbourne. The men visited Sheikh Bakr’s residence on a number of occasions before departing for Sydney on 5 May 2005. While in Melbourne, there was a lengthy discussion involving Hasan, Elomar and others that concerned the ordering of laboratory equipment listed in the Haines catalogue. The Sheikh was also a participant in the conversation. Shortly before 2 June 2005 a male person using the false name of “Peter Dravjic” rang Haines and discussed faxing through to the company an order for laboratory equipment. On 2 June 2005, a faxed order was sent from a fax machine at Sayers Road Pharmacy, Hopper’s Crossing, Victoria. This pharmacy was located a short distance from Aimen’s premises. The order was in the name of “Peter Dravjic”. The manager of Haines received a follow up call in relation to this order from a male person who gave a contact number. This was a telephone service that had been activated on 14 June 2005 in a false name. The receipt for this telephone was later located at Hasan’s premises on 27 June 2005 during the execution of a search warrant. The transaction with Haines was never completed and the equipment was not collected. The reasons for this are unclear. It is clear beyond doubt, however, that Aimen had placed the order and, as will appear, it was done with the help and approval of Hasan and Elomar.

22 Search warrants were executed at Sheikh Bakr’s place, and at Aimen’s home as well, in June 2005. During the search of the latter’s home, a handwritten document listing items of laboratory equipment was located. This document was clearly compiled from the Haines catalogue. Importantly, it generally corresponded with the items mentioned in the discussions that had previously occurred between Hasan, Elomar, Sharrouf, Aimen and Sheikh Bakr as to what items were to be ordered and the quantities of those items. Hasan’s and Aimen’s fingerprints were found on the document. The document was in the handwriting of Elomar. On 27 June 2005 a search warrant was executed at Elomar’s premises. One item seized was a USB stick containing instructions in Arabic for the manufacture of explosives (“The Illustrated Encyclopaedia”). As I have earlier mentioned, firearms and ammunition were also seized. There was also a document found on a CD entitled “Security and Intelligence” which included various topics related to the manufacture and detonation of various improvised explosives. They included step by step instructions on how to manufacture explosives such as TATP and HMTD, with details and advice as to how to source the ingredients for the explosives, and how to extract and prepare them for use.

23 On 26 July 2005, one Khalid Vetter and another man (alleged by the Crown to be Hasan) attended the New Directions store at Marrickville. The men were involved in the purchase of laboratory equipment. It was a reasonably substantial order and the equipment was taken away at the conclusion of the transaction. On 18 October 2005, Vetter returned to the store with another man. There was no dispute that, on this occasion, the other man was Hasan. However, no purchases were made on this visit. A search warrant was executed at the home of Khalid Vetter in November 2005 and laboratory equipment, consistent with that purchased from New Directions, was found underneath his home. Vetter maintained that the equipment was for his perfume business, although the search details disclosed that some of the New Directions laboratory equipment was by then missing. It was not located elsewhere in Vetter’s house. I am satisfied beyond reasonable doubt that the Melbourne attempts to obtain an extensive range of laboratory equipment (including thermometers containing mercury) were attempts to obtain equipment for the making of explosive devices. Similarly, even if it were not Hasan who went with Vetter in July 2005 to New Directions (a fact in dispute), the equipment purchased was plainly to be used for the purposes of the conspiracy, at least in part.

Attendance at camping trips

24 The authorities detected the attendance of a number of the offenders at two camping trips in remote parts of New South Wales. The first was the Curranyalpa trip between 16 and 18 March 2005. This camp was booked, as I have said, in a false name using a false name phone service. In attendance were Hasan, Elomar, Khaled Cheikho, Sharrouf and three of the Melbourne men Aimen, Fadl and Ahmed. The second trip occurred between 12 and 14 April 2005. The booking was once again made in a false name and use was made of a false name telephone service. Present at the camp were Elomar, his son, Hasan, Khaled Cheikho, Moustafa Cheikho and Touma. The camp was booked in the name of “Andrew Scott”. Moustafa Cheikho apparently introduced himself upon arrival as “Andrew Scott”. The camps were appropriately labelled by the Crown as “bonding trips”, but they were held in locations where there could be no surveillance of the men’s activities or their discussions with one another. There was some shooting at each camp, apparently principally organised by Elomar.

Purchase of chemicals

25 Between 28 September 2005 and 5 November 2005, Hasan and, to a lesser extent, Jamal, were involved in the ordering of chemicals. On 28 September 2005, Hasan and Jamal attended Auto King and placed orders for battery acid and distilled water. They left two false name phone services. One of the latter services had been activated on that day. It appears to have been created as a dedicated phone service for the purchase of chemicals. Hasan paid $200.00 deposit in cash. Later in the day there was an attendance at Chemical Cleaning Solutions at Campsie. The person ordering chemicals at that location used the name “George” and gave the false name phone number “George Markis” for contact purposes. The person who placed this order was, however, Jamal. On the same day, Hasan attended Peter’s Hardware at Greenacre and ordered 60 litres of acetone. He paid a deposit in cash and gave his name as “Adam”. Jamal went to Peter’s Hardware in early October 2005 and enquired about the progress of the acetone order placed by Hasan on 28 September 2005. He left the “George Markis” phone number on this occasion.

26 On 13 October 2005, Jamal and another unidentified man attended Auto King and collected the distilled water which had been ordered on 28 September 2005. Jamal and the other man then went to Autoquip to collect the sulphuric acid which had been ordered on 28 September 2005. However, it was not collected. It was available for collection but it appears possible that the conversation there may have “put the wind up” Jamal. At least the Crown had suggested at trial that this may have been the case. In any event, from that time onwards, it appears Jamal had no further connection with the ordering or collection of chemicals.

27 Hasan continued with his endeavours to purchase chemicals. During the week of 17 October 2005, Hasan attended Padstow Station Hardware and enquired about placing an order for methylated spirits and acetone. He provided the name “Adam” and gave a phone number that was close to the number of the “George Markis” service. Once again, a deposit was paid in cash. On 22 October 2005, Hasan collected the 16 litres of acetone from Peter’s Hardware. On 1 November 2005, Hasan returned to Padstow Station Hardware and paid $670 cash for a chemical order (acid/acetone) and made arrangements to collect it on 5 November 2005. Purely by accident, Hasan had been observed by an off-duty police officer at the Padstow Station Hardware store. Clandestine arrangements were made with the proprietor to keep the store under scrutiny in the event that Hasan returned to collect the order.

28 In fact, Hasan returned to Padstow Station Hardware on the morning of 5 November 2005. Video surveillance captured his movements around the store and finally, obviously suspicious, he was seen to leave without collecting the order. The car he had been driving on that occasion was a Musso vehicle FDT-113. It had not been hitherto detected by surveillance. I am satisfied beyond reasonable doubt that this was a car used deliberately by Hasan to escape surveillance. Two days after Hasan’s arrest, the vehicle was found abandoned in Bankstown. Items in the car included a number of containers of “Refresh” brand distilled water (those being the same brand as the items purchased at Autoquip), and a 5-litre container of hydrogen peroxide. There were also two shovels, two mattocks and a rake, and four very detailed topographic maps covering a relatively remote part of the Blue Mountains, west of Sydney. There was also found an Esky and a book entitled “Fortress of the Muslim” on which were located Jamal’s fingerprints. Similarly there was a map with Jamal’s fingerprints on it. There was also DNA analysis of items from the vehicles which targeted the man “B.”

29 A second Musso vehicle ATE-40N was found abandoned in Bankstown on 8 February 2006. It clearly had been in that location for some time. There were items found in the vehicle linked to a number of the offenders. There were also items that demonstrated that the vehicle had been used for camping or other related purposes. Once again, this was a car that had not previously come under police surveillance. As with the first Musso, it had plainly been used in connection with some type of concealment activity in rural areas. Both vehicles were registered to one Kalaam Ahmed Syed, a person who had arrived in Australia on 25 February 2003 but departed for India on 6 August 2005. His address was given as The Boulevarde, Lakemba.

Concealment and other activities occurring at the end of the period of the conspiracy

30 Between July 2005 and 8 November 2005, the activities of the man “B” increased markedly. Another man, Mulahalilovic, came into the picture at this stage. For example, on 19 August 2005, Mulahalilovic purchased $433.00 worth of 7.62 x 39 ammunition. “B” purchased quantities of hydrogen peroxide at two pharmacies on 22 September 2005. Unfortunately for him, he was detected by surveillance in these activities. He told the shop assistant at one of the pharmacies that the chemicals were for his grandmother. In late October “B” made a number of enquiries about chemicals and ammunition. He also made enquiries in relation to the delivery of chemicals that had been ordered by Hasan. In early November 2005, “B” went to Discount Mania and purchased tape. He and Mulahalilovic bought PVC end caps as did “B’s” wife. On 3 November 2005 Elomar, Moustafa Cheikho and Sharrouf went to Bunnings for tape and Sabco containers. Later that day Elomar went to Ronnie’s Hardware store and bought five containers. Still later that day, Mulahalilovic went to Bunnings for 6-metre PVC pipe, priming fluid etc. These and other transactions in early November were, plainly enough, preliminary steps in an operation to conceal and keep from detection items or materials collected in connection with the conspiracy. There was an escalating fear that either raids or arrests were imminent.

31 I should also mention that earlier police had seized 24 x 400ml bottles of hydrogen peroxide which, quite by accident, had been discovered behind Sharrouf’s house. It is clear that this was an order that had been collected from the Menai Pharmacy in June 2005 following a purchase in a false name. The Crown had alleged that Moustafa Cheikho was the purchaser of this order, although it must be said that the identification evidence in this instance was not overly reliable. Khaled Sharrouf’s home, however, was only a short distance away from the home of Moustafa Cheikho. Whoever was the purchaser, it is clear that the hydrogen peroxide was acquired for the purposes of the conspiracy.

32 On 19 August 2005, the Kingmax USB which had been seized from Elomar’s home had been returned to Elomar and his niece, Oula Awad. On that day “The Illustrated Encyclopaedia” was deleted from the memory stick. This was a rather clumsy attempt to distance Elomar from the damaging material, contained on the memory stick. Other material, of an innocent kind, was not deleted.

33 On 22 August 2005, a false name service in the name “Mark Jenkins” was activated. This was the service used by Elomar to send text messages to “B’s” false name service. On 3 September a further false name service was activated namely, the “John Pham” service. This again was a false name service used by Elomar to contact Khaled Cheikho’s false name service, the “Tom Clincley” service. On 28 September 2005, the date when Jamal and Hasan commenced their chemical purchasing, the “B” false name service and the “Mark Jenkins” service commenced “coded” SMS texting. The coding took the form of messages from fictitious persons, usually arranging a date or discussing going to a nightclub etc. The other two services I have mentioned commenced their coded SMS texting on 31 October 2005. Overall, the series of messages were designed to arrange meetings, to facilitate transactions and to arrange finance when necessary. The codes used were designed to lull an unaware observer into thinking the arrangements were purely social interactions of an innocent kind between sweethearts or pals.

34 On 3 November 2005 at 3.30pm the “Mark Jenkins” service messaged the Khaled Cheikho false name service enquiring after some rolls of silver tape. On that same afternoon, as I have said earlier, Elomar, Moustafa Cheikho and Khaled Sharrouf were at Bunnings at Bankstown and were involved in the acquisition of silver tape and containers. On two occasions “B’s” false name service contacted Elomar’s false name service and asked for money. This was plainly in connection with the purchasing and enquiries being made by B on behalf of the conspiracy.

35 On the evening of the day when Hasan had fled the Padstow Station Hardware area, and had failed to collect the ordered chemicals, Elomar visited Hasan at his home and was there for several hours. During this time Elomar’s service contacted the false name service of “B”. Their conversations, however, were not picked up. This meeting and telephone contact was plainly significant in the light of Hasan’s fears that he had been detected. It clearly confirmed the need for urgent concealment and the taking of evasive action.

36 On 7 November 2005 Elomar and a number of the other men met at a solicitor’s office. All the offenders were arrested in the early hours of the morning on 8 November 2005. Jamal was allowed to leave but was later re-arrested and charged on 21 December 2005.

37 The above material represents a very condensed version of the facts relied on by the Crown in support of the proof of its case as to the scope and nature of the conspiracy. There were many other facts and items which I have not troubled to either identify or summarise. There was, for example, a very considerable body of surveillance evidence. The principal effect of this evidence was to show a very close association between the offenders over a considerable period of time. The second area I have not endeavoured to summarise was the listening device and the telephone intercept material. It was, as might be expected, voluminous. Once again it shows the very close association between the men. It also portrays, on occasions, very extremist views being expressed by some of them. I will however endeavour, as best I can, to summarise briefly the instructional and extremist material found at the home of the offenders, including material in disc form or on the hard drive of their computers. This material is important for an understanding of the state of mind of the offenders and, particularly, the states of mind which supported their individual actions in furtherance of the conspiracy. It also gives a particularly compelling insight into the nature and scope of the conspiracy.

Instructional material

38 The material found on the USB flash drive at Elomar’s home contained recipes for the making of explosives using nitro-glycerine, hexamine, hydrogen peroxide, acetone and sulphuric acid (battery acid). There were also instructions for making a detonator from acetone and peroxide. There were also recipes for explosives made from fertilizer and mercuric fulminate. This material assumes particular significance when regard is had to the range of chemicals and equipment either procured or enquired about by the conspirators during 2005. Information contained on disc at Elomar’s home included extensive compilations dealing with “Security and Intelligence”, particularly in the context of Islamic jihad. This material focused on sabotage, kidnappings, counter-surveillance and, indeed, assassination. There was other material on disc containing extensive information on the making of bombs and the use of weaponry. There were detailed image files as well.

39 Material accessed on Khaled Cheikho’s computer included “First Introduction to Explosives”. This Arabic material detailed, for example, the ways in which battery acid might be obtained and used for explosives. It contained recipes for combining battery acid, hydrogen peroxide and acetone to form a dangerous explosive. There were other recipes as well. Other downloads accessed on this computer included details of instructions to the Mujahideen in relation to waging jihad against the enemy. This material ranged from the mundane (getting physically fit) to the more serious (making detonators and bombs). On Christmas Day 2004, a publication called “The Terrorist Handbook” was accessed on Khaled Cheiko’s computer. Although lampooned by Mr Waterstreet for Khaled Cheikho in relation to some of its contents and its somewhat “tongue in cheek” commentary, the booklet, nevertheless, contained a considerable range of working and workable recipes for dangerous explosives including those made from chemicals such as mercury (obtained from thermometers), sulphuric acid (obtained from batteries) and gun powder (from ammunition). There was expert evidence during the trial which demonstrated that the recipes, if followed, were capable of producing effective explosive devices.

40 Khaled Cheikho also had at his home a book entitled “The Layman’s Guide to Electronic Eavesdropping: how it’s done and simple ways to prevent it”. There were also instructional and educational articles in relation to basic electronics and electronic projects. In February and March 2005, Khaled Cheikho’s computer had accessed electronic files related to Kalashnikov weaponry. This was the type of weapon which might be used to fire 7.62 x 39 ammunition. There was evidence that Khaled Cheikho was not himself interested in shooting or camping. For that reason, his research on his computer took on a particular significance in this regard.

41 Moustafa Cheikho also had at his home a copy of the book entitled “The Layman’s Guide to Electronic Eavesdropping”. An electronic file found on Moustafa Cheikho’s computer on 8 November 2005 contained a document with the message “Log on and learn how to bomb via an ohmmeter plus mobile phone in one illustration”. There was also a diagram of an electrical circuit connecting a mobile telephone, ohmmeter, battery and explosives (Exhibits 1023 and 1024). There was debate at trial as to whether these, without more, could possibly work. But there is no doubt the material illuminates Moustafa Cheikho’s interests and his activities in those areas in relation to the conspiracy.

42 Each of the offenders had, either on his computer or in disc form, instructional material in the nature of military handbooks. For example, electronic copies of the “Sniper Handbook” were found on computers and/or media seized from the premises of each of the offenders. (Similar electronic copies were also found at the premises of “B”, Sharrouf and Touma). There was also survival planning and survival kits found in electronic form at the homes of each of the offenders. Each of Hasan and Moustafa Cheikho had at their homes editions of a book by John Lofty Wiseman entitled “SAS Survival Handbook”.

Extremist or Fundamentalist material

43 Each offender had at his home, in one form or another, a vast quantity of extremist or fundamentalist material. Some of this was in hard copy form but the bulk of it was in electronic form, either on hard drive or discs or both. One particular feature of this trial was the fact that a considerable volume of extremist material was held by each offender in common with the other conspirators. This was referred to throughout the trial as “the commonality material”. It was analysed in considerable detail and there was no dispute about the commonality aspect. The offender Hasan gave evidence that the CDs and other material he had at his home or which were copied on to his computer were simply unsolicited handouts made at the Prayer Hall or Mosque. I reject that evidence completely. It is clear to me that the common holding of this vast body of material among the offenders and their close associates is powerful evidence of the sharing amongst them of material which reflected their jointly held extremist views. They may not have read, viewed or digested every article or image, but generally they would have been aware of or appreciated the overall nature of the material.

44 A summary of the media commonality material may best be expressed by reference to three groupings. The first group was contained on two DVDs described in the evidence as “Seized media commonalities extracts” or SMCE. The DVDs contained an extract (but only an extract) from the common files that were found during the various searches. The first DVD contained an images section and a video section. There were 139 images found to be common to one degree or another across the offenders and the alleged co-conspirators. The video section contained extracts from 18 video files which were found to be common to a number of the hard drives and/or discs seized. The second DVD contained 19 documents in the document section and six audio files in the audio section.

45 The second “group” was contained on a CD prepared to supplement the extract material. This CD was described as “Seized media commonalities supplement CD” or SMCS. It contained a number of images – 314 in all – common to a number of the discs and hard drives found during the seizures. It also contained some 12 videos and audio files exhibiting varying degrees of commonality. There were also some 216 document files which were provided to the jury in hard copy format. There were some seven large folders containing these documents.

46 The images on the SMCE DVD themselves fell into a number of categories. First, there were images showing injured or deceased Muslim civilians and/or soldiers. The images were clearly designed to evoke sympathy and distress from Muslim viewers. The second category contained “slogans” relevant to the destruction of the Twin Towers in 2001 and images of the actual destruction and its aftermath. For example, image 10 was of an aircraft cockpit with a slogan “Mohammed Atta – nobody move. Everything will be OK. If you try to make any moves, you will endanger yourself and the airplane. Just stay quiet”. In disc or hard drive format this image was common to each of the offenders, with the exception of Elomar. There were similar images glorifying the 9/11 hijackers. There was one describing them as “The magnificent 19”. This was common to Moustafa Cheikho, Hasan and Jamal.

47 The third category of images on the “extract” DVD contained images of Islamist identities. They included, as might be expected, Osama bin Laden and Zarqawi. There were a number of others, all heroes of the jihadist movement. The fourth category contained a number of images of military conflict, generally showing Americans and their Allies being killed or wounded in combat. For example, image 41 shows a downed helicopter on fire. It was common to all of the offenders. Finally, there were images of Muslim prisoners being badly mistreated or manhandled by their captors.

48 The video files in the two groups, that is on both the “extract” DVD and the “supplement” CD, included a number showing the execution of hostages or prisoners by Mujahideen. These were particularly brutal, distressing and graphic. It is impossible to imagine that any civilised person could watch these videos. So disturbing were they that none of the executions was shown to the jury. The preliminaries to the execution of a Korean prisoner in one video were shown but without audio content. That was the extent of it. Otherwise the jury were simply given a written description of the videos and their contents. These videos were common to a number of the offenders, although it is clear Jamal did not view the one execution video found at his home. The documents in the “extract” DVD included, for example, interviews with Osama bin Laden and numerous articles justifying, over and over again, the pursuit of jihad towards “disbelievers”.

49 Generally speaking, the images on the “supplement” CD fell into the same categories I have identified. They included, however, inspirational images of Chechnyan leaders training their troops. Generally, the images appear once again to be designed to evoke both sympathy and anger in the Muslim viewer. They appear designed to create anger and hatred against the United States and its Allies, and to inspire satisfaction and rejoicing at the victories of the Muslims over the “infidel”. The videos, as I have said, once again contained a number of beheadings or executions. The document files contain Islamist exhortations to jihad, for example, “Jihad the Forgotten Obligation – Join the Caravan” was common to all five offenders, as was “Defence of the Muslim Lands”. Other common documents included “Fundamental Concepts regarding Al-Jihad” and the “bin Laden Epistle – Declaration of War”. There were also the Military Handbooks to which I have made earlier reference. At the homes of Moustafa Cheikho, Hasan and Jamal were discs containing a document entitled “Australian Government – Transnational Terrorism: The Threat to Australia”. Saved to the hard drives of the computers of Khaled Cheikho, Moustafa Cheikho and Hasan was a document entitled “The Parliament of the Commonwealth of Australia: Anti-Terrorism Bill 2005”. This document was saved to the respective computers of the three men on either 15 or 16 October 2005.

50 The third “group” of material comprised miscellaneous extremist exhortations of one kind or another. For example, there was a video common to all the offenders entitled “American Pigs Killed.wmv”. This was a video of a truck exploding with considerable force, presumably killing its American occupants. There was also a video entitled “Badr.wmv”. This was an Al-Qaeda instructional video about the 2003 Riyadh bombings. It was in Arabic and showed the assembly and detonation of an improvised explosive device. In one format or another it was available to all the offenders, with the exception of Elomar. Hasan, who did not speak Arabic to any degree, had still images from this video in pdf form on his computer as at 8 November 2005.

51 There was also a CD known as “Iraq War” CD. It was a CD containing three video files containing a good deal of disturbing imagery from the Iraq war. It was common to all the offenders, save for Jamal.

52 I will mention briefly the contents of two files in this third grouping. First, was an audio file found on disc at the homes of all offenders, with the exception of Elomar. It was entitled “The Islamic Verdict on the Madrid Bombing”. This file was principally in English. It appears to be a dialogue between the principal speaker (who may have been an Islamic cleric) and his audience concerning “the success” of the Madrid bombings. In part, the dialogue suggests that the Madrid bombings might be properly seen as an act of revenge for the expulsion of the Muslims from Andalusa many centuries earlier. But the principal message is that the bombings had brought about a change in contemporary Spanish Government policy. It was in that regard that the bombings were seen by the speaker and his audience as primarily successful. At one point, the principal speaker said:-

“Obviously, those types of operation are effect of a particular cause. That cause is the occupation of Muslim land in Afghanistan, in Iraq and as well in Chechnya and around the world. But in order ourselves to see what happened last week in Madrid, we need to understood that Mujahideen did give warning to the Governments of the West and to European community, that is, we are going to retaliate for your own aggression. No longer your soldiers can live in our country or can occupy our country and killing women and children...and go back to their own camps and sleep peacefully because they going to hear their own family back home under attack and that it will break the psyche of their own soldiers... that (is) what happened on Madrid”.

53 The file continues by justifying the death of civilians in Madrid with reference to the death of civilians in Afghanistan at the hands of the United States aircraft and their ground bombings. It accuses the “coward American soldiers” of bombing people in Afghanistan and Iraq, and of being “the real terrorists”. Later the speaker reminds his audience that “bin Laden told the world that the jihadists were going to attack a number of countries”. Here, he specifically mentions Australia. The Madrid bombings, he says, sent the message that Al-Qaeda not only continues to exist but to thrive, and that it is willing to target the homelands of other countries. Finally, the speaker says: -

“We gave the Spanish people a choice between war and peace. They choose the peace by their own choosing the right party who was against the alliance with the Americans in its own war against Islam”.

54 The article confirms that jihad is no longer to be confined to Palestine or Chechnya or Iraq. Importantly, it is to be “sent back” to any country which is involved in attacking or supporting the attack against Muslims anywhere in the world. These sentiments, I might add, are, plainly enough, completely consistent with the intentions I have found were held by each of the offenders, intentions which were, in turn, consistent with, and indeed dictated by, the jury’s verdict in this trial.

55 A final brief reference may be made to an instructional video file found on media seized from the premises for all of the offenders with the exception of Elomar. It was principally in Arabic but there was one brief segment on the video where a masked Mujahideen speaks in English with a very obvious Australian accent and says “You kill us, so you will be killed. You bomb us, so you will be bombed”. This is an overly simplistic but reasonably accurate summation of the mindset of each of the offenders in this trial. It is the mindset that prompted the entry of each man into the conspiracy and, no doubt, motivated his actions in relation to the furtherance of the enterprise.

Objective seriousness of the offence

56 The objective seriousness of the offence committed by each offender is primarily to be gathered by reference to the criminality of the enterprise upon which they were each engaged. Consistently with the jury’s verdict I find that each offender was completely committed to the outcomes of the enterprise to do acts in preparation for a terrorist act or acts. I find that the notions willingly and fully embraced by each individual offender, and shared jointly between them, included the following: First, each was driven by the concept that the world was, in essence, divided between those who adhered strictly and fundamentally to a rigid concept of the Muslim faith, indeed, a medieval view of it, and to those who did not. Secondly, each was driven by the conviction that Islam throughout the world was under attack, particularly at the hands of the United States and its allies. In this context, Australia was plainly included. Thirdly, each offender was convinced that his obligation as a devout Muslim was to come to the defence of Islam and other Muslims overseas. Fourthly, it was the duty of each individual offender, indeed a religious obligation, to respond to the worldwide situation by preparing for violent jihad in this country, here in Australia.

57 The task required by the criminal enterprise was to equip the conspirators individually and jointly, with the knowledge, the ability and the means to prepare for or to enable a terrorist act or acts to be carried out in Australia. The intended purpose of that act or those acts would be to instil terror and panic in the Australian community, and thereby to force the Australian Government to change its alliances and policies overseas. The terrorist act or acts contemplated involved the detonation of one or more explosive devices, or the use of firearms, or both. It was plainly intended that this act or those actions would be of a major kind and that they would be effective to secure the objects of the enterprise.

58 Now, it is true that the evidence does not establish that any firm conclusion had been reached as to matters such as the precise nature of the action which was to be carried out, or its target or targets. Moreover, the evidence does not establish who would actually prepare the bomb or bombs in its or their final form. Nor does it establish who would detonate the explosive or explosives or in what circumstances that would occur. The prompt action by the authorities meant that the enterprise was interrupted at a relatively early stage of its implementation.

59 It is accepted by counsel for each offender that the act constituting the offence was the intentional act of each offender in entering into the agreement to participate in the planned terrorist activity. In those circumstances, it is proper to approach consideration of the sentencing process by having regard, so far as one can, to what would have happened had the intended terrorist act or acts actually occurred, in the light of the intentions of each offender. In this case, the nature of the contemplated terrorist act or acts can be seen from the type and variety of materials collected or sought to be collected. The intentions of the individual offenders can be gleaned from their words and conduct and from the extremist and instructional material held by them or shared between them. The objects of the conspiracy, as a whole, can be plainly understood from the whole of the material and events I have earlier summarised.

60 A consideration of those matters satisfies me beyond reasonable doubt that each offender intended that the terrorist act or acts, for which preparation was being undertaken, would involve action that, at the very least, was intended to cause serious damage to property. Such act or acts, involving the use of assault ammunition and explosives, would be highly likely to endanger the life of members of the community and, at the very least, create a very serious risk to the health and safety of members of the public. While I cannot be satisfied beyond reasonable doubt that any of the offenders intended directly to kill or take human life, it is clear beyond argument that the fanaticism and extremist position taken by each offender countenanced the possibility of loss of life, if that were to occur. The offenders’ collective disdain for the Australian Government and their intolerant animosity towards members of the community who were not of a like mind to themselves made such an attitude inevitable, even if the proposed act or action were limited to an explosion or explosions directly intended to cause serious damage to property. There is not the slightest justification for thinking that the contemplated act or action might have been limited to the setting off of an explosion in some isolated rural area. Each conspirator intended that the ultimate act or terrorist act was to be an effective one, one that would make a significant difference to the Government and the community. It would also be a meaningful expression of their own anger and frustration, as they saw it, directed towards the Australian people’s unfair attitude to Muslims.

61 An examination of the individual acts carried out by each of the offenders in furtherance of the conspiracy shows that each of those acts was necessarily central to, and important for the purpose, of the fulfilment of the agreement to which each offender was a party. Each offender unequivocally and voluntarily adhered to the objects of the criminal enterprise. Each offender carried out his tasks in that regard resolutely and in complete defiance of the authorities. The Crown submitted that this was evident from the increase in activity on the part of the offenders following the execution of search warrants in mid-2005, and the further increase in such activities (particularly activities relating to concealment of items) in the latter part of 2005, at or about the time of the passing of relevant amendments to the Anti-Terrorism legislation. As I have said, copies of that legislation were found on the computer of Khaled Cheikho and also on the computers of Moustafa Cheikho and Hasan. Other persons involved in the enterprise expressed, in this latter phase, a fear that their homes would soon be raided, as indeed, they were.

62 It is necessary to add into this complex mix the large quantity of extremist material in the possession of each offender. It is fair to see this as a reflection of each offender’s ideology, his inspiration and motivation in the pursuit of the extremist cause of violent jihad. Mr Dalton SC submitted before the jury that a person is not what he reads. That is true, in general terms, but here the sheer volume of extremist material, and the particular fact that it was held in commonality among the offenders, is very telling as to the existence of a shared mindset.

63 The mindset evinced by all this material may be summarised as follows: First, a hatred of the “KUFR”, that is those Muslims and non-Muslims who did not share their extremist views. Secondly, an intolerance towards the democratic Australian Government and its policies. Thirdly, a conviction that Muslims are obligated by their religion to pursue violent jihad for the purposes of overthrowing liberal democratic societies and to replace them with Islamic rule and Sharia law. This criminal enterprise was not in any sense motivated, as criminal activities so often are, by a need for financial gain or simply private revenge. Rather, an intolerant and inflexible fundamentalist religious conviction was the principal motivation for the commission of the offence. This is the most startling and intransigent feature of the crime. It sets it apart from other criminal enterprises motivated by financial gain, by passion, anger or revenge.

64 It will be apparent from the foregoing considerations that the level of criminality involved in the present conspiracy was far more substantial than the criminality involved in the individual acts of each offender, such as might have warranted the bringing of individual substantive charges against him. Matters indicating the added level of criminality involved in the conspiracy include the following: -

(a) The formation of an agreement (and the entry into it) by a group of people to acquire materials that might subsequently be used for the carrying out of terrorist act or acts is of its nature likely to be more advanced than a sporadic individual acquisition.

(b) A conspiracy, involving the joint effort of a number of like-minded individuals, is more likely to succeed than the isolated actions of an individual.

(c) In addition, a conspiracy involving a number of people acting at different times, different places and in different ways is much more difficult to detect.

(d) Importantly, a conspiracy of the present kind is much more difficult to shut down. As can be seen from the facts I have found, where one member of the conspiracy was detected buying ammunition, another person, perhaps unheralded prior to that time, moves in and acts in furtherance of the conspiracy. The conspiracy is like a Hydra, a multi-headed monster. When one head is removed, another simply springs up in its place.

(e) Most importantly, the overall extremist zeal of a group venture is more enduring, more fanatical, more determined, more resourceful and ultimately likely to be more successful than an individual acting alone. That was the case here where, for example, a number of acquisitions have effectively been hidden from the view of the authorities and still remain concealed to this day. Chemicals, piping, firearms, ammunition, mobile phones and laboratory equipment remain out of reach of the authorities and may be able to be used, if not by the offenders, then perhaps by those who are still at large and who may remain sympathetic to the conspiracy and its aims.

65 In any event, there can be no doubt whatsoever that the criminality of each offender is at a very high level indeed. The Crown in its submissions, however, accepted that, while the offence carries a term of life imprisonment, it did not press for the imposition of such a term against any of the offenders. The principal reason the Crown put this submission was that it accepted that the evidence could not support a finding beyond reasonable doubt that the intent behind the conspiracy involved a deliberate and direct plan to kill people. The Crown, however, submitted that it clearly encompassed in the mind of each of the offenders a real risk of danger to human life. For that reason, the Crown submitted that although it might fall short therefore of the most serious case, one reserved for a clear intent to kill, it was still nevertheless, a very serious offence and one that fell not much short of the most serious class of case. I accept that submission.

66 This enterprise was very deliberate and very determined. The defiant and brazen nature of its activity was very significant. The concealment process shortly prior to the arrest of the offenders was particularly significant. This was done not merely to avoid detection but to preserve the fruits of the criminal enterprise for later use when the heat died down. Indeed, the prospect of detection and the introduction of wider terrorism laws did not lead the conspirators to countenance abandonment of the enterprise. Far from it. The focus moved to concealment and the avoidance of arrest so that the materials collected would be still available for their criminal purpose. As I said earlier, there is a wide range of materials that have never been recovered.

67 The conspiracy existed over a long period of time. I have found that it was in existence in the early part of 2005 and was only brought to an end in November when the offenders were arrested. It is possible that it may have been in existence earlier in 2004 although I have not made any finding to that effect. Each of the offenders (apart from Jamal) was a participant throughout the entire period between February and November 2005. Jamal was a willing and busy participant by 28 September 2005 and in my view, remained a participant until 8 November 2005. (Mr Scragg made submissions about his client’s withdrawal from the conspiracy and I shall deal with these separately when I deal with the individual situation of his client).

68 The criminal enterprise was carried out in a manner, which reflected considerable pre-meditation, determination and commitment. It is true that in some respects the attempts to obtain materials were sometimes amateurish and often lacking in cleverness. On occasions, they were inept and clumsy. Those factors did not make the conspiracy any the less dangerous. I accept the Crown’s submission that the arrangements were relatively well advanced and were characterised by a clear and logical inevitability, namely that, but for the intervention of the authorities, such arrangements would have been put into effect sooner rather than later. In that sense, the conspiracy was advanced to such an extent that it could not be said its outcome was remote. More work needed to be done, of course, but there is no reason to doubt that, absent the intervention of the authorities, the plan might well have come to fruition in early 2006 or thereabouts. The materials were to hand and recipes for the construction of explosives were available. It certainly could not be said that the prospect of a terrorist act or acts was completely indeterminate as to when it would occur. The driving fanaticism behind the collective mindset of the conspiracy would have ensured that events moved quickly once sufficient material had been assembled, and the authorities’ surveillance thwarted or at least diminished.

69 For all these reasons, I find that the criminality involved in the enterprise to which each man willingly participated was of the most serious kind falling only marginally short of the most serious case.

One other common factor

70 There is a common factor that has been stressed in argument on behalf of all the offenders. This is the fact that all the offenders have been in custody pursuant to an “”AA” remand classification. Now that each is convicted, the classification will continue and do so, possibly indefinitely, during the period in custody.

71 This is confirmed by Exhibit “MC 2”, a letter from Deputy Superintendent Michael Hovey of the Corrective Services of New South Wales dated 9 December 2009. A copy of this letter has been provided in the sentencing hearing for each offender. Mr Hovey envisaged that the offenders would “remain classified as AA inmates after sentencing”. It is possible that individual offenders might progress to a different level. This would be dependant upon the length of sentence and the behaviour of the offender whilst in custody and his willingness to attend appropriate programs. Mr Hovey acknowledged that classification cannot be forecast accurately.

72 The practical consequence of the classification is that prisoners are more likely to be held in Lithgow Correctional Centre, Goulburn Correctional Centre or the High Risk Management Correctional Centre. Each offender will have the capacity to make submissions to the Commissioner as to whether the classification should be downgraded but ultimately the decision will remain with the Commissioner.

73 I have examined the conditions of incarceration for an “AA” prisoner in a number of earlier decisions (Regina v Lodhi [2006] NSWSC 691 at [79-81]; Regina v Touma [2008] NSWSC 1475 24 October 2009.) I will not repeat the detailed observations in these remarks on sentence. Broadly, the evidence presently before me establishes that the conditions of incarceration for an “AA” prisoner are onerous. The prisoner is kept in a small cell and allowed out between 9am and 2.30pm each day. Cells may be shared with another prisoner. Hasan, for example, shares a cell with Omar Jamal but is not able to mix with other prisoners in the general population. This might be as much for his own safety as for any other reason. When let out of the cell, the prisoner is able to move around in a day room and yard. There is also a sports area to which they are given access and there is also access to a library. The cell itself in which Hasan is situated has no natural light. For reasons which are not explained in the evidence, there have been in the past quite a number of occasions where there have been “lock downs” in the cells. This has meant the prisoners have missed out on the opportunity to move out into the day room and yard and to use the other facilities I have mentioned. There is a protocol for inmates to be placed in handcuffs and ankle cuffs for movements to internal areas or to areas outside the prison. Inmates may associate with another prisoner in the day room and day yard areas where that is approved. Hasan, for example, is permitted to mix with Khaled Cheikho. They are also able to associate with other approved inmates, of their choice, at their request via a booking system but only in certain areas.

74 There is an Imam who visits the prisoner approximately once a month to interview inmates. Halal meals are available although they have to be paid for by the inmate. Reading of religious text is limited to an approved list, which are deemed by the authorities to be appropriate. The contents of this list are determined in conjunction with the Imam. (No doubt the purpose of this limitation is to prevent extremist material being generally available in the gaol). The prisoner has access to radio, walkman/discman and television. There is also access to a microwave, refrigerator and a jug. Access to phone calls is somewhat limited but is available on a daily booking system. Persons calling the inmate must be approved by the Commissioner. Generally, calls are limited to immediate family and legal representatives. Visitors are allowed, provided they are approved by the Commissioner. Personal visits are permitted once a week on either Saturday or Sunday for a minimum period of one hour. A maximum of four adult visitors and a manageable number of minors, is considered acceptable.

75 Educational course and facilities are available upon request. An “AA” classified prisoner does not have access to paid work.

76 In practical terms it seems unlikely that each offender will experience prison conditions less harsh as sentenced prisoners than they have experienced while they have been on remand. As I have said earlier, the conditions of imprisonment for an “AA” classified prisoner are no doubt onerous but they are not as harsh as I had envisaged three years ago at the time of writing my decision in R v Lodhi. This observation is not intended to be dismissive of the difficulties facing “AA” classified prisoners. Indeed, I propose to take into account, in fixing all of the sentences, the probability that onerous conditions will remain appropriate to all the offenders flowing from their “AA” classification. I will also take into account that each offender has had to put up with these conditions for over five years whilst on remand. Recognition of these matters does not, however, call for any mathematical quantification. Indeed, it is a factor that must diminish somewhat in significance when placed alongside the principal considerations operative when a person is sentenced for a serious terrorism offence. I shall turn to discuss those matters now.

The framework for sentencing in relation to terrorist offences

77 The statutory guidepost for the exercise of the sentencing discretion in the present matter is provided by s 16A(1) of the Crimes Act 1914 (Cth). The Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. Section 16A lists a number of matters which the Court must take into account (as are relevant and known to the Court). Although the need for general deterrence is not specifically listed among the factors in s 16A(2), a sentencing Court must have full regard to the need for denunciation and general deterrence in determining the appropriate severity of the sentence in accordance with s 16A(1).

78 I have in earlier decisions set out the basis on which the Court must approach the sentencing exercise in relation to serious terrorist offences (see Regina v Touma [2008] NSWSC 1475 at paras 72 to 82). Put shortly, the concepts that are especially important in the present sentencing exercises are punishment, deterrence, denunciation and incapacitation. (The last matter is often described as “protection of the community” – see Faheem Lodhi v Regina [2007] NSWCCA 360 at [92]- [93] per Spigelman CJ. In R v Martin (1999) 1 Cr App R (477 at 480), Lord Bingham CJ, as the senior law Lord then was, said: -

“In passing sentence for the most serious terrorist offences, the object of the Court will be to punish, deter and incapacitate: rehabilitation is likely to play a minor (if any) part.”

79 The broad purpose of the creation of offences of the kind involved in the present sentencing exercises is to prevent the emergence of circumstances which may render more likely the carrying out of a serious terrorist act. Obviously enough, it is also to punish those who contemplate action of the prohibited kind. Importantly, it is to denounce their activities and to incapacitate them so that the community will be protected from the horrific consequences contemplated by their mindset and their actions. The legislation is designed to bite early, long before the preparatory acts mature into circumstances of deadly or dangerous consequence for the community. The anti-terrorist legislation, relevantly for the present matter, is concerned with actions even where the terrorist act contemplated or threatened by an accused person has not come to fruition or fulfilment. Indeed, the legislation caters for prohibited activities connected with terrorism even where no target has been selected, or where no final decision has been made as to who will carry out the ultimate act of terrorism. The maximum penalty of life imprisonment testifies to the seriousness with which the present offence is to be regarded.

80 In determining an appropriate sentence for each of the offenders, the individual’s own culpability and level of criminality must be assessed. In addition, the Court is obliged to consider the subjective circumstances and other mitigating factors peculiar to each offender before determining the individual sentences. I turn now to deal with the individual situation of each offender. The first offender whose sentence is to be determined is Mohamed Elomar. I shall then, out of deference to counsel’s submissions, consider the position of Khaled Cheikho, Hasan, Moustafa Cheikho and Jamal in that order.

Mohamed Ali Elomar

81 I know very little about Elomar. In particular, I have not been provided with any information that allows me to understand or comprehend the situation that has led him to become a dangerous and committed terrorist. After the sentencing proceedings were completed, Mr Dalton SC, with the consent of the Crown, sent me a brief note which tells me something about Elomar’s background. Elomar gave no evidence before me either at trial or during the sentencing proceedings. There were no reports submitted on his behalf.

82 In terms of age, Elomar is the most senior of all the offenders. He is 44 years of age. He came to Australia from Lebanon in 1977. He was born in Tripoli. He attended school at Bankstown but left after completing Year 10. Initially, Elomar successfully undertook a Metal Fabrication apprenticeship with the Water Board. He was obviously intelligent and not without ambition and ability. It appears from the material submitted to me that he attended a Mechanical Engineering course and afterwards went on to undertake a Rigging and Crane Driver drafting course. He has been part of and worked in a family business for approximately 15 years. This business entailed working with structural steel on building sites. It is clear he is resourceful and successful in business.

83 Elomar comes from a large family. There are 12 children in his family. His 11 brothers and sisters reside in Australia, with most having their own businesses. His father died in 1994 and his mother passed away while he was in custody in 2008. Elomar has been married to his wife for 22 years and has six children of his own. In recent times he has operated his own drafting business, but on occasions he has also worked with his brothers in the family businesses. He was clearly well respected by the other offenders who appear to have treated him with some degree of deference.

84 This brief statement of facts, collated principally from Mr Dalton’s document, indicates how little I know of Mohamed Elomar. Some assessment of his state of mind, however, can be obtained from an examination of the interviews he had with the authorities on 21 and 22 June 2005. His answers showed a very high level of defiance, dislike and anger towards the Australian Government and its policies overseas. They contained the usual prevarications about Osama bin Laden and whether Muslims were responsible for the slaughter of innocent civilians in the Bali bombings. While it is true he was careful, during the interview, to assert that he was not involved in any plans to take jihadist action or to set off explosives in Australia, the overall attitude displayed was one of anger and aggression. It is probably correct that he was somewhat goaded by the questioning, as Mr Dalton submitted to the jury, but he remained perfectly in control throughout the interview and indeed, dominated it. A second insight into his mindset is to be gained from an examination of the extremist and instructional material he had at his home. I shall not pause to repeat these matters as they have been sufficiently examined elsewhere in these remarks.

85 Elomar, as did all the other offenders, clearly played a central part in the furtherance of the conspiracy. He occupied a co-ordinating position in relation to most aspects of the enterprise. It was he who was responsible for ordering an extensive amount of assault rifle ammunition in 2005. It was he who wrote out the handwritten list for the Haines order in May 2005. He co-ordinated the man “B” towards the end of the period of the conspiracy and participated in a coded system of communication with “B” and also Khaled Cheikho. He was clearly at the forefront of the concealment activities in October/November 2005. It was he who possessed the recipes for explosives that I have set out earlier. I find each of these matters established beyond reasonable doubt.

86 The Crown’s initial submission was that Elomar was the leader of the conspiracy. The Crown suggested that the Court could be satisfied beyond reasonable doubt that a hierarchy existed. At the top of the list was Elomar, with Khaled Cheikho not far beneath him as some type of vice-captain or senior officer. The submission continued that Hasan and Moustafa Cheikho might be seen as middle rank participants in the conspiracy, with Jamal bringing up the rear, principally on the basis that he came into the enterprise fairly late in the piece.

87 The Crown later moderated and clarified this submission to some extent. In its final written submissions it said: -

“It is further submitted that apart from the places of the offenders Elomar and Khaled Cheikho in the hierarchy of the conspiracy, the roles and nature of participation of the offenders in the conspiracy are not in any (or any substantial) dispute. It is, however, accepted by the Crown that the Court is entitled to conclude that any findings that the Court may make as to different places in the hierarchy of the conspiracy do not necessarily lead to any, or any significant, differentiation between the offenders as to appropriate sentences, albeit that Jamal was a relatively late joiner”.

88 In my opinion, the initial submission regarding hierarchy is apt to mislead in the present matter. First, in a conspiracy such as the present it is very difficult to determine whether a hierarchy exists and, if so, the precise level occupied by each of the offenders. Secondly, a conspiracy of the present kind is very different from, for example, a conspiracy to import drugs for a commercial gain. There, it may well be anticipated, there might undoubtedly exist a clear hierarchy of criminal responsibility. That may well have important consequences for the sentencing process.

89 In the present matter, while it is certainly true that Elomar was the most senior of the offenders, the fact is that each of the men was unequivocally committed to an outcome that was intended at the very least to cause serious damage to property and would have been very likely to cause devastation in the community, if not serious injury or death to civilians. Each offender was convinced that it was his solemn duty to undertake the necessary tasks to further the enterprise, no matter the individual cost to him. Each had an unswerving commitment to the enterprise and to his fellow conspirators. This commitment was deeply held by each man and arose out of a sense of contempt for the Australian Government, its leaders, its law and its values. Subject to the resolution of the submission made by Mr Scragg for Jamal, it may be safely said that each man still holds these views. Each man’s conviction was that the plight of Muslims in other lands demanded violent action in this country to redress those wrongs and, through fear and panic in the community, to change the Government’s policies.

90 While it is undoubtedly true that Elomar was the most senior of the offenders, as I have said, and while it is undoubtedly true that he played a central role in the furtherance of the conspiracy, it may also be said that each man played a central role, even if the actions of some were more numerous than those of others. In my opinion, this means that, although there may be slight gradations of difference in the allocation of criminal responsibility, overall the level of criminality to be attributed to each offender is relatively similar. In the present matter, there is little utility in trying to establish with absolute precision a gradated hierarchy when the criminal liability of each man is at such a high level. That is because the level of criminality of the conspiracy itself to which each man was a willing adherent is, as I have said, not much less serious than the worst-case situation. That said, there can be no doubt whatsoever that Elomar was, throughout the conspiracy a co-ordinator of many aspects of the criminal enterprise. That situation, as will be seen, may be contrasted with the role played by others.

91 In Elomar’s case, as with each of the others, this assessment is to be moderated by the fact that no target had been selected and no decision had been made as to what would be the precise nature of the terrorist act or who would carry it out. Secondly, I take into account that Elomar has led a blameless life for a considerable number of years. He has no criminal history whatsoever. Thirdly, I take into account the difficult conditions of his custody both pre-trial and the likely conditions following upon conviction and sentence. These men, however, while they undoubtedly face the prospect of many years in a prison with a degree of trepidation and concern, do appear to wear their imprisonment like some kind of badge of honour. This is because they see it as a test of their faith and a burden willingly to be borne as a duty arising from their fundamentalist religious conviction.

92 In Elomar’s case, as with all the men, I propose to backdate the sentence to be imposed to reflect the period spent in custody following arrest. I also take into account the fact that, from the outset, Elomar’s legal representatives have sought to facilitate the course of justice by suggesting or advocating possible methods to short circuit the length of the trial and make the reception of evidence more efficient. Unfortunately, this attitude was not shared among others and the Elomar proposals, in the end, did not, in any real way assist the shortening of the trial. Nevertheless, it is a matter that should be taken into account and I propose to do so.

93 Despite these moderating features, I have to say that Elomar has not acknowledged any responsibility for his actions, nor has he exhibited any contrition or remorse in relation to the serious crime for which he has been convicted. Of course, like the others, he continues to assert his innocence. From my perspective as the sentencing Judge, it is important to note, however, that there is no contrition and no acceptance of responsibility whatsoever. Importantly, I see little prospect of rehabilitation. There is no present indication that Elomar will ever renounce the extremist views that fuelled his participation in this very serious conspiracy. Unfortunately, Elomar has all the hallmarks of a offender whose motivation is not that of financial or other material gain, but who is driven to act from an extremist religious conviction. The significance of this for sentencing purposes is the acknowledgement that the community needs protection from his criminality. The sentence must provide an appropriate level of incapacitation so that the commensurate degree of protection will be afforded to the community.

Khaled Cheikho

94 I know perhaps a little more about Khaled Cheikho than I do about the offender Elomar. This is because I have been provided with a report from Tim Watson-Munro, a consultant forensic psychologist. The report is Exhibit KC 1 in the sentencing proceedings. The report is dated 10 December 2009. It appears to be based in part on an interview the psychologist had with Khaled Cheikho. This was, it seems, conducted by way of audio visual-link. There was also a separate consultation between the psychologist and the offender’s brother Adnan Cheikho. The report notes that Khaled Cheikho, notwithstanding the verdict of the jury, maintains his innocence in relation to the charge against him.

95 Khaled Cheikho was born in Lebanon in March 1973. He is presently 36 years of age. He has five brothers and five sisters who are alive. The offender is the youngest son and the second youngest member of the family. All his siblings reside in Australia. Khaled Cheikho’s family emigrated here when he was three years of age. His father died approximately nine years ago at the age of 73. His mother is still alive and is aged 79.

96 Khaled Cheikho was educated at Punchbowl Primary School and Bankstown Boys’ High School. He commenced Year 11 but left before the end of that year. He described himself as an average student who tended to enjoy sport more than his academic pursuits. It appears his employment record was fairly sporadic. He told the psychologist that during his late teenage years and up until his 20’s he experimented with “sex, drugs and rock’n’roll”. He reported an overall developmental history that was uncomplicated and happy. However, in his early 20’s he became disenchanted with his lifestyle and started to practice Islam. He reported that he became concerned about a lack of substance in his life. Since that time, he has been largely sustained by his Islamic faith. This strong involvement with Islam has involved him in five Prayer meetings or sessions during each day. This, it is reported, has given him the strength to deal with his current situation as a convicted offender. He is claimed to have said to the psychologist “Prophets are tested most by Mohammad”. I am not sure that this is an accurate quote, but I take the offender to have meant that his religion gives him the ability to cope with his prison situation.

97 The balance of the interview confirmed to Mr Watson-Munro that the conditions of imprisonment are rigorous for the offender. He is obviously anxious about his future and he is concerned about the fact that he is separated from his wife and child. He does have access to a limited array of Islamic literature but complains that there is no version of the Koran in his particular unit.

98 Khaled Cheikho apparently lost a significant amount of weight when he was first incarcerated, although some of this has now returned. The psychologist thought that the offender was able to provide an articulate account of his life and his views. There was no evidence of any delusional thinking. It is not insignificant that the offender described strong feelings of distrust towards the authorities, including ASIO and the Court system in general. He stated “Courts are puppets for the regime...they are cronies of the Government”. The interview with Adnan Cheikho led the psychologist to believe that, beneath a veneer of apparent coping, the offender may be suffering significantly at an emotional level. Apparently, Adnan Cheikho informed the psychologist that the offender is very much concerned about the absence of his wife and child. It appears the offender married some ten years ago and that his wife is some nine years younger than he. They have a nine year old son Zubair. It seems that his wife and child are currently domiciled in Jordan, having relocated there approximately three years ago. The offender told the psychologist that his preference is for them to be in that country, and that he is slowly adjusting to the situation. Adnan Cheikho’s version of events suggested that the offender may be more affected by this situation than he is prepared to admit. The offender has, however, given no evidence before me and, as a consequence, I can give little weight to this claim.

99 I turn next to consider the acts undertaken by Khaled Cheikho in furtherance of the conspiracy. I am satisfied beyond reasonable doubt that the offender was aware of and complicit in the obtaining, pursuant to the conspiracy, by Touma of about 8,000 rounds of 7.62 x .39 ammunition suitable for use in assault rifles such as that known as an AK-47. The telephone calls between the two men prior to the hand over of the ammunition, and the call shortly after it was discovered by the police satisfy me, not only that Khaled Cheikho knew that Touma was acquiring the ammunition for the conspirators, but that the offender had a coordinating role in that regard. It is true that the actual conversations between the two men following the telephone calls are not in evidence. Indeed, there is no direct surveillance evidence to show that they in fact met. But the contents of the telephone conversations, their tone and the timing of them in connection with the seizure by the authorities of the ammunition, leave me in no doubt that Khaled Cheikho played the role I have earlier described. There were also the escalating number of calls between the two men between April and May 2005. This role could not, by any stretch of the imagination, be regarded as peripheral to the conspiracy or its execution. It was a central aspect of the collection of materials to be used in connection with a terrorist act or acts. The unexpected seizure of the ammunition was undoubtedly a major blow to the progress of the criminal enterprise.

100 I have already referred to the significant number of covert text messages passing between the false name phones operated by Elomar and “B” in the latter stages of the conspiracy. In these, “B” sought the permission of Elomar to include the man Mulahalilovic in meetings, as well as seeking money from Elomar. I am satisfied beyond reasonable doubt that, by the beginning of November 2005, there was a pressing need to hide materials that had been acquired. There was a fear that raids would be carried out by the authorities. I am also satisfied beyond reasonable doubt that Khaled Cheikho had a role to play in this important process for the purposes of preserving the criminal enterprise. Despite the close attention of the authorities, the enterprise was not to be abandoned. Rather, materials were to be stored or concealed for use at a later time. I have earlier referred to the fact that copies of the Anti-Terrorism Act 2005 were saved to the computers of Moustafa Cheikho, Khaled Cheikho and Hasan in about the middle of October 2005. There was widespread publicity at the time to the fact that these amendments were designed to widen the ambit of the legislation to include a preparatory terrorist act, even where no particular target had been selected. The situation was undoubtedly “hotting up”. For example, Khaled Cheikho’s false phone service contacted Elomar’s service: -

“See ya soon sweetie the rain come down hard tonight, it’s clearing up soon hopefully”.

And on the next day, the following text message was sent at about 8.16pm: -

“OK but were still waiting for a lift, it will have to be in a few hours. Just tell me what time is good for you”.

And the next day: -

“Hi babes, it’s been a scorcher today. Did you see the news today for the weather forecast?”

These were clearly not calls about the weather. On 3 November 2005 at approximately 1.16am, Khaled Cheikho texted Elomar: -

“Did you get my message, darling?”

And then: -

“Where are you darling?”

At about 3.31pm, Elomar text the following message to Khaled Cheikho: -

“Hello darling, can you let me know if you still have some rolls of the silver tape? I need some for this afternoon. My credit is finished on my phone. Call me on this number”.

(Later that afternoon, Elomar and others acquired silver tape and containers from Bunnings).

101 There were subsequent calls between the two men, in the same type of code, trying to arrange an urgent meeting for that evening – and the following early morning.

102 These are but a few examples of the calls between the two men. The calls between Elomar and “B”, and the surveillance evidence show that the call regarding the rolls of silver tape was followed by a flurry of activity relating to concealment of materials. I am satisfied beyond reasonable doubt that the two Musso vehicles were being used in this concealment process as is evidenced by the contents found in those vehicles. Various maps were found as well as spades, mattocks and a rake. A container of hydrogen peroxide was in the first vehicle. There was a good deal of camping equipment and maps in the second vehicle.

103 In the first vehicle there were two documents that had Jamal’s fingerprints on them. These, it will be recalled, were “The Fortress of the Muslim”, and a Sydney UBD map. There was DNA of “B” located on the homemade fabric gun holster found in the same vehicle on 10 November 2005. DNA components of Omar Jamal were identified on the sleeping bag cover in the second Musso ATE-40N. This, it will be recalled, had been abandoned but was found later by the police in February 2006. Khaled Sharrouf’s DNA was found on a Fanta bottle in the same vehicle. DNA of Hasan was found on a water bottle in that vehicle. Khaled Cheikho’s DNA was identified on a Passiona bottle found in the same vehicle. There were various items in the second Musso that contained fingerprint material belonging to Hasan. There were items there consistent with an overnight stay in the bush. Significantly, for present purposes, the key to ATE-40N was found at Khaled Cheikho’s home. Finally, it might be mentioned that Moustafa Cheikho’s thumbprint was found on page 25 of the Sydney Morning Herald dated 5/6 November 2005. This newspaper was located in the Musso vehicle ATE-40N.

104 The submissions on behalf of Khaled Cheikho essentially argued that none of the many allegations made against him in the Crown case had been proved beyond reasonable doubt. This submission was scarcely helpful and flew markedly in the face of the jury’s verdict. On the other hand, it is true that many of the matters alleged against Khaled Cheikho during the trial were circumstantial matters that were not necessarily, of themselves, acts in furtherance of the conspiracy. Taken together with other matters alleged, they might be so described but, looked at separately, not necessarily so. Into this category fell the bonding sessions at the two camping trips, the accessing by Khaled Cheikho of the AK-47 Manuals in February and March 2005 and the accessing of the Terrorist Handbook. There were other matters as well but I need not detail them here. Those matters were relevant to the state of mind of the offender Khaled Cheikho and relevant to the question whether the intentions necessary to establish the offence had been proved beyond reasonable doubt. They were relevant to the existence and scope of the conspiracy. Similar observations may be made in relation to each of the other offenders. There were many matters of a circumstantial kind relied on before the jury as part of an overall mosaic in proof of the elements of the offence. My concern, in these remarks on sentence, is however, essentially limited to findings beyond reasonable doubt of individual acts in furtherance of the conspiracy.

105 In favour of the offender I take into account a number of the matters mentioned in the considerations relating to Elomar. These include the fact that this is the first time the offender has come under adverse criminal notice and that he has to date led a blameless life. They include a consideration of the conditions of custody both during the last four years and for the possible duration of his custodial sentence. The sentence will, of course, be backdated to take account of the time spent in custody prior to conviction. In one area, however, I am unable to make any significant allowance in favour of Khaled Cheikho. This is in the area of the facilitation of justice by means of endeavours to shorten the trial and make the reception of evidence more simple. This factor was not altogether absent from the role played by Khaled Cheikho's legal representatives in the trial but it was, by comparison with the positions taken by others, rather less generous. Khaled Cheikho is not to be punished, of course, for his lawyers’ insistence that certain matters be proved strictly, or that all available pre-trial matters be explored to the point of almost judicial exhaustion. Khaled Cheikho was entitled to instruct his lawyers to pursue his case by those litigious means. Very little, if any, allowance can be made, however, in his favour to reflect any willingness to facilitate the course of justice.

106 Khaled Cheiko's criminality, like that of Elomar, is essentially defined by the ambit of the criminal enterprise into which he willingly entered. I have found that to be an enterprise of the most serious kind, falling not far short of the most serious case. Khaled Cheikho's role was central to the conspiracy and he was fiercely committed to its objects. He too, like Elomar, was a co-ordinator of aspects of the enterprise, although his role in that regard was not as extensive as Elomar’s had been. An examination of the outburst he made at the time of his arrest shows his absolute contempt for the Australian Government and its laws. It shows his extremist conviction that Sharia Law should rule, even in this country. Those attitudes of distrust and defiance, so far as I can ascertain from the psychologist report, still inhabit his thinking. Khaled Cheikho has shown no remorse and no acceptance of responsibility. His prospects of rehabilitation are extremely poor. His extremist and fundamentalist convictions require his incapacitation for a considerable period of time so as to protect the community.

Abdul Rakib Hasan

107 I shall first set out the subjective circumstances of the offender Hasan. This is taken partly from the evidence he gave during the trial. It is also to be gleaned from the report of Dr Alex Gilandas, a Clinical Psychologist. The report is dated 19 November 2009 and was prepared following an assessment that took place at the HRMCC, Goulburn Correctional Complex on 19 November 2009.

108 Hasan is a 40-year-old divorced male with four children. He grew up in a large Bangladeshi family who, it is said, were “poverty stricken”. He was the second youngest of 12 children. He attended school between the ages of eight and 16. He worked sporadically in his brother's garment factory. His education was basic and he had no particular vocational skills. His native language is Bengali and he also has had exposure to Hindi and Urdu. He does not speak Arabic, except in a limited manner. Nor, with the exception of the Koran, does he read Arabic. His English is fairly basic despite his being 20 years in Australia.

109 The offender came to Australia when he was about 20 years of age in 1989. He came here to study Business Computing but gave up the course after a couple of weeks because his English was not good enough. He then set about learning English at a course in Bondi Junction, although he remained at this task for less than six months. He worked for a while at the Intercontinental Hotel in the cleaning section and then moved back to Bondi. It seems that he was less than attentive to his personal and moral well-being while he was at Bondi and he did not pursue any further studies. He gained some expertise as a fish filleter and, indeed, opened his own business for a short time in Lakemba. He married Shahida Steele and, under his influence and that of others, she converted to Islam. The four children of his marriage are aged between eight and two. The second youngest suffers from a serious disability. The offender's wife divorced him while he was in custody. It appears that he has now been virtually abandoned by his family.

110 Shortly before his arrest, the offender had been working at the Halal Indo-Malay butcher's shop in Lakemba. He had also done a bit of buying of second-hand materials. He impressed during his evidence as a fairly resourceful man, although not possessed of any great financial skills. It appears that, throughout his marriage, he was often in financial difficulties and, for whatever reason, he did not provide adequately for his family. Dr Gilandas thought that the offender was suffering from depression although there was no evidence of any perceptual or thought disorder or any other psychotic phenomena. The offender told Dr Gilandas that he felt like “a failure” in regards to his family life. The psychometric assessment of depression put the offender into the severely depressed range. It has been in this range for some little time. Although the offender was anxious about his future it appears that the testing demonstrated that he is now adapting more to his situation and has lowered his expectations for the future.

111 Dr Gilandas' conclusions were expressed in the following terms: -

"Mr Hasan has shown a similar pattern of emotional disturbance as for previous testing. He was already severely depressed when tested eight months ago and remains so. He is a concrete thinker with dependent personality features. Such individuals display poor coping skills and have a low level of emotional resilience."

112 The report notes that he is culturally isolated in prison and that he finds it difficult to integrate himself within the Lebanese prison community who tend to be “clannish”. The offender complained of insomnia with general fatigue. He has a need for dental treatment. His incarceration is maintaining his depression, but as Dr Gilandas noted, “nothing can be done about this”.

113 Dr Gilandas also provided an appendix to his report which summarised the conditions of imprisonment. A frequent characteristic appears to be the number of 24-hour lockdowns occurring within the prison system. This applies, of course, not only to those with an "AA" classification but to all inmates. The other conditions of incarceration have been dealt with earlier by me, or in earlier decisions. Provisions have been made for Halal food for the offender and he has the ability to exercise in the dayroom and exercise area near his cell. There is morning access to a library but Mr Hasan is not a reader and uses the library more for socialising. He has access to a TV and radio in his cell. It appears that access to an Imam is not happening as frequently as the offender would like.

114 The offender is allowed four calls per week with a six minute limit per call. There is an approved list of people who can be telephoned. These include his ex-wife, his children and sister. The last visit he had from his children as a group was on 12 November 2008. His ability to contact his family in Bangladesh by telephone is, as might be expected, not easily facilitated. He has only managed to make 10 successful calls during the past four years. The problem appears to be that of obtaining reliable service between Australia and Bangladesh.

115 Hasan has provided the Court with a sworn affidavit dated 14 December 2009. The offender confirms details of his condition of custody including the situations where lockdowns have occurred. As the affidavit notes this has been a common occurrence at the Goulburn Correctional Centre. Hasan is in a cell with a co-offender, Omar Jamal. He confirms that they are allowed out of the cell between 9am and 2.30pm each day. They are given access to a sport area and also access to a library.

116 The offender has detailed the dwindling number of visits from his ex-wife. For example, in the first year he was in custody he saw his wife and children about once a week. While he was in Silverwater during 2008, by comparison, he saw them 16 times. He has not seen the family at all between November 2009 and the date of the affidavit. I am unaware of the position after mid-December 2009. It seems, commensurately with the dwindling of family visits, the number of telephone contacts the offender has been able to make with his children has lessened. He has limited access to details of his children's life and, understandably, feels cut off from them. He now has been able to make, in recent times, two calls to his family in Bangladesh those being on 12 November and 5 December 2009. He does not receive visits from any other persons in the Lakemba community. He states that he is feeling “isolated and depressed” and is having problems sleeping and sometimes breathing at night. He describes himself as feeling “very anxious”.

117 Ms Yehia SC stressed that Hasan has no criminal antecedents although she accepted that in a crime of the present kind this may not loom as large as it does in relation to other criminal matters. Hasan is to be given credit for the fact that he has raised money for charitable Muslim purposes overseas. Once again, however, this is not a matter of any real substance in the overall context of this crime.

118 I turn to examine the basis on which Hasan has acted in furtherance of the objects of the conspiracy. Indeed, the Crown and Ms Yehia are in substantial agreement as to the basis on which, for sentencing purposes, the Court may determine the acts of participation. The only real difference between counsel is the issue as to whether Hasan was knowingly engaged in acts intended to acquire laboratory equipment to facilitate the manufacture of explosives earlier than May 2005. In my view, the evidence establishes beyond reasonable doubt that he was knowingly engaged in this pursuit as early as February 2005. Ms Yehia's arguments centred upon certain aspects of the evidence given by Hasan at trial. There was evidence, senior counsel submitted, that laboratory equipment was used by Khalid Vetter for his perfume business and that Vetter was found in possession of such equipment in November 2005. That is true, although a significant amount of the equipment was missing from the material found under Vetter’s house. There was also evidence (accepted by the Crown) that Hasan was not in Sheikh Bakr's premises when the latter made the damaging remarks about doing “maximum damage” to the Australian community. Moreover, Ms Yehia pointed to the evidence that Sheikh Bakr had been visited by Mr Hasan for a number of reasons including a desire to seek marriage counselling at the insistence of his wife.

119 While I accept the validity of the last two points made by Ms Yehia, I nevertheless find, beyond reasonable doubt, that the discussion of the Haines laboratory list on 23 February 2005 was in connection with the future acquisition of laboratory equipment for the purpose of making explosives. Hasan denied that this was so in his evidence, but I reject the majority of his evidence on the basis that it was a self-serving, carefully concocted attempt to distance himself from the conspiracy and, at the same time, to whitewash his co-offenders. In my view, his evidence was a deliberate attempt to distort the truth so as to push the blame on to the man "B" and other persons and, in that regard, to further remove blame from the other offenders. The Crown case against him was a very powerful one. Indeed, it may be said that his evidence was an almost impossible attempt to absolve himself and to whitewash the other offenders. It was all the more difficult because there were so many matters that called for an explanation. Hasan's attempt to climb these “mountains” of circumstantial fact was virtually an impossible task. I have no doubt that the jury rejected the great bulk of his evidence as do I.

120 Consequently, I am satisfied beyond reasonable doubt that Hasan was involved in the preparation of a list of laboratory equipment for the purposes of the conspiracy, and that this was occurring both on 23 February and as at 4 May 2005. I am similarly satisfied that Hasan was involved in the manoeuvres by Aimen to order the laboratory equipment from the Haines organisation and that these were in connection with the objects of the conspiracy. Ms Yehia did not dispute that it would be open to the Court to find beyond reasonable doubt that Hasan was involved in the ordering and/or collection of chemicals between 28 September and 5 November 2005. It was common ground that he and Jamal attended Auto King and ordered a large quantity of battery acid and distilled water on 28 September 2005. On the same day, Hasan attended Peter's Hardware Store and ordered acetone. In the first week of October 2005, Hasan attended Padstow Hardware and ordered acetone and methylated spirits, returning on 5 November with the intention of collecting those items but failed to do so in circumstances I have mentioned earlier. It is not disputed, for the purposes of this sentencing hearing, that these acts were done in furtherance of the conspiracy to commit acts in preparation for a terrorist act or acts. The chemicals were to be acquired to facilitate the manufacture of explosives. As I have said earlier the collection of the large amount of battery acid was frustrated for reasons which are not entirely clear. Hasan's endeavours to collect chemicals on 5 November 2005 were also plainly frustrated, but this was because of his concern that he was either under surveillance or likely to be followed.

121 There were other matters of a circumstantial nature relied on by the Crown throughout the trial. These included, for example, the camping trips to Mulga Creek and Curranyalpa. These were for bonding purposes but I cannot be satisfied beyond reasonable doubt that they were jihadist training camps. As the Crown wryly observed during his final submissions, it was now accepted by the Crown that they were bonding camps, but they were, after all, bonding camps attended by a group of jihadists. There is no need for me to detail all the matters where proof beyond reasonable doubt is not available.

122 In relation to the extremist literature, Ms Yehia submitted that the videos and images on Hasan's computer were not downloaded from the Internet. That much may be readily accepted, having regard to the expert evidence. Secondly, senior counsel argued that the material was copied from CDs onto the computer hard drives. It was not downloaded. That too, may be readily accepted. The third and major submission was that the vast majority of the extremist material would not have been viewed by Mr Hasan or, if it had been, would not have been understood by him. In this regard, Ms Yehia asked the Court to accept that the vast number of the CDs containing the extremist material had simply been obtained by Mr Hasan as “handouts” from the Prayer Hall at Lakemba.

123 While I accept that Hasan probably had a somewhat limited ability to comprehend a good deal of the material contained in the extremist documentation tendered by the Crown, I find beyond reasonable doubt that, generally, he well understood the nature of this material and regarded it as informative and inspirational so as to feed his beliefs about the need for violent jihad in this country. I reject his evidence that the CDs came into his possession by way of handouts at the Prayer Hall at Lakemba. No doubt, some of the material did, but I do not accept for a moment that this was so in the case of the vast body of the material. It needs to be emphasised in the case involving Hasan, as with the others, that this large body of extremist and fundamentalist material was important to the formation of the mindset that spurred his entry into the conspiracy and his willing participation in it.

124 Hasan's participation in the criminal enterprise was central to it. It could not, in any sense, be regarded as marginal or peripheral to the conspiracy or its execution. Hasan performed, or was complicit in the performance by others, of significant acts in preparation carried out pursuant to this conspiracy. Hasan would have been well aware that other conspirators were, were to be, or had been, engaged in other complementary acts in preparation. While his activities were central to the conspiracy, I am not satisfied beyond reasonable doubt that he was a co-ordinator or a leader. I have earlier remarked on the difficulties of establishing with clear precision the hierarchy in this conspiracy. Hasan was plainly an active and useful participant in the collection of equipment and chemicals but he could scarcely be regarded as a co-ordinator of the enterprise. Certainly, he could not be described as the financier of the enterprise, even though on a number of occasions he had to hand over reasonably large amounts of cash. It is not clear where the money came from in any of these instances. But I accept that it was not from his resources or from his own monies personally.

125 This really brings me to the main point of Ms Yehia's submissions. Ms Yehia argued that, so far as it can be ascertained, there should be a recognisable difference between the conspirators in the present case in terms of hierarchy. Senior counsel’s concern, of course, was with Mr Hasan. I accept the submission that, on the probabilities, Hasan was not a co-ordinator of the venture, and I accept further that this must mean he should be treated differently from Elomar and Khaled Cheikho. But the difference is not a significant one. As I have said, Hasan's role was central to the conspiracy. He was, like all the offenders, fully committed to the outcome of the enterprise. Like them, he was driven to it by his extremist religious convictions. Hasan was engaged in activities in furtherance of the conspiracy between February and November 2005. He was resolute and inventive in achieving the tasks he undertook, even if there were an elements of clumsiness or lack of preparation in relation to some aspects of his activities. He plainly had a role in the concealment process.

126 I have taken into account in his case, as with all the offenders, that no target was identified in relation to any action or threat of action contemplated by the criminal enterprise. I accept that the Crown has not established beyond reasonable doubt that it was Hasan's intention that people would be killed although, as I have said, the conspiracy necessarily envisaged serious injury or death as a possible consequence of the use of an explosive device or devices or the use of firearms or both. I do not accept Ms Yehia's submission that the ordering of chemicals is less serious than the actual obtaining of them. In the circumstances of this case, the chemicals failed to be collected simply because of a series of fortuitous circumstances. The criminality, in my view, is just as serious in the case of the ordering of the chemicals as in the actual collection of them.

127 The offender Hasan is to be sentenced on the basis that his criminality is at a very serious level indeed, although it falls short of the most serious case for the reasons I have indicated. While I accept that there is a difference between the criminality for which he is to be punished and that exhibited by Elomar and Khaled Cheikho, I do not think the difference is, by any means, of a significant nature.

128 I take into account all of these subjective matters to which I have earlier made reference. In addition, I note that Hasan has no criminal history of any kind. I accept that Hasan's custodial conditions to date have been onerous. I accept that, certainly for the immediate future and well beyond, it is likely that his classification will remain the same and that his conditions of custody will therefore, remain onerous. I accept that he is more culturally isolated than the other offenders although, at the moment, he has the company of Omar Jamal with whom he is on friendly terms. I accept that his family situation is an unhappy one for him. But I do not think it reaches the level of exceptional circumstances. Nor do I think that the situation of his family requires any specific allowance in the sentencing procedure. I have not heard any evidence from Shahida Steele and accordingly, must give little weight to this aspect of the submissions made on behalf of Hasan. I have sympathy for his position but Hasan is clearly the author of his own domestic misfortune. It is scarcely surprising that he has been abandoned by his family.

129 Ms Yehia submitted that an appropriate comparison for the sentence to be imposed on Hasan might be the pre-discount sentence imposed on the man "B". "B" pleaded guilty to four substantive offences under the terrorism legislation. Two of those carried the maximum penalty of life imprisonment. The sentence, prior to discount, for each of those two offences was 22 years. I do not, however, find this a particularly helpful comparison. "B" is not, strictly speaking, a co-offender with Hasan. They were originally each charged as co-offenders but the entry of the pleas by "B", and the circumstances relating to the presentation of a fresh indictment changed this situation. I accept that, strictly speaking, issues of parity only arise directly in the case of co-offenders, although sentences imposed on persons for similar offences may, in certain circumstances, create a guide, or be used as a guide in considering the range of penalty. (R v Araya [2005] NSWCCA 283; Van Haltren v R [2008] NSWCCA 274). It is obviously desirable, as a matter of sentencing consistency, however, for me to examine the situation with "B" by way of comparison. Indeed, where persons have been involved in the same criminal enterprise, the parity principles may require to be applied by analogy. The situation, however, may, upon examination, be so different that the analogy will break down, and the comparison may or will be of limited value. The first point of distinction is that here the offender Hasan has been found guilty of a criminal conspiracy which is a good deal more serious than the individual counts to which "B" pleaded guilty. It is the more serious for the reasons I have given much earlier in these remarks on sentence. Secondly, "B" pleaded guilty and gave assistance to the authorities. Those aspects of his situation were reflected in a discount given to him. But, in a general sense, aspects of his likely remorse and contrition, together with the possibility of his having moved away from a fully extremist position, were reflected in the synthesis represented by the selection of a pre-discount sentence. The “starting point” already had those factors built into it. Moreover, his subjective circumstances were by no means identical to those of Hasan.

130 Hasan did not plead guilty and, as he was entitled to do, fought the issues in the trial with great vigour and unrelenting litigious determination. The Crown was put to proof to a significant degree. Of course, he is not to be punished for this, but it is a situation in marked contrast to that of “B”. Hasan has shown no remorse whatsoever. He has not renounced in any way the extremist views which led him to the commission of the subject crime. His prospects of rehabilitation are poor. The very religious convictions that sustain him in the difficult burden of his incarceration are those same convictions that fuelled his decision to enter upon an enterprise that had the potential to pose such a serious and significant threat to the Australian community. As I say, there is no evidence whatsoever to show that he has backed away from any of those convictions. While I have taken into account the sentence imposed on the man "B", I do not think that it is a particularly helpful or useful or equivalent sentence for comparison purposes. The same may be said for the sentence imposed upon Faheem Lodhi although he, of course, did not plead guilty to his crime. The criminality in the present matter, in any event, is significantly higher than that in the matter of Regina v Lodhi.

Moustafa Cheikho

131 I turn now to consider the subjective case for Moustafa Cheikho. He was born on 25 February 1977 and is now 32 years of age, shortly to turn 33. He has no criminal history. He was born in Australia. He has a 25 year old sister and three brothers who are aged respectively 35, 31 and 27 years. His parents separated when he was 12 and are now divorced. His mother, who suffers from cardiomyopathy, is 56 years of age. It appears that there was a domestic situation of considerable tension in the family home prior to his parent's separation and subsequent divorce. His father's absence caused significant financial stress in the home as his mother was left to bring up all five children. The report of Tim Watson-Munro, dated 4 September 2009, states that the absence of the offender's father as a role model clearly impacted upon the offender’s developing self esteem and, no doubt, affected his schooling significantly. The offender attended four primary schools and this, it seems, resulted in a situation where he did not establish meaningful peer group relationships with other boys. As a consequence, he sustained ongoing security issues and low self esteem over the years. He attended Condell Park High School from Year 7 to 12 inclusive where he completed his HSC. His studies however, were essentially trade focused. He spent only two days at school and three days at TAFE.

132 Upon leaving school the offender secured an apprenticeship as a motor mechanic at Greenacre. He did not, however, obtain his final papers in the trade because he sustained an injury to his back. His work history then took a different direction. As a consequence, he worked in the security industry until about 2003. During that time he obtained a licence to use firearms. As a result, however, of escalating interest in him by both the AFP and ASIO, he lost his license to do security work and to carry a gun. The offender married his present wife in August 2002. He has one son who is now approximately five years of age. He sees his wife and child every week when they travel to Goulburn prison to visit him. His wife is not in good health.

133 The offender told the psychologist that he had never been a person who used illicit drugs or consumed alcohol. From 1995 onwards, his interest in the Koran developed and intensified until he ultimately made a full commitment to the devout observation of his religion in 1999. For example, he has attended the Prayer Hall at Lakemba twice a day during the past 10 years. The decision to follow this strict religious path apparently created a lot of difficulties amongst his former friends. It led to him developing new friends at the Mosque, and undoubtedly, he came more under the influence of his uncle Khaled Cheikho. He reports that he has had a continuing and strong bond with Khaled Cheikho “to this day”. During this period it appears that the offender developed an escalating sense of isolation from the broader community. With the effluxion of time he developed a strong sense of faith and commitment to the teachings of the Koran. This, he told the psychologist, has been a source of immense support during his time in prison.

134 The report concludes that Moustafa Cheikho is a reasonably well oriented person. He has no indications of gross psychopathology. He is suffering considerable strain in relation to his sense of anxiety referrable to his pending sentence and the broader implications that this will have on his family. He derives great comfort from his faith and from the visits. he receives from a religious advisor. The psychologist thought that the offender had become increasingly compromised at a psychological level for a number of years prior to his arrest. This was because of his back injury and his later loss of ability to work in the security industry. This, in turn, restricted his ability to earn money and to support his family which no doubt would have further eroded his already impaired self-esteem. The report gives detail of the difficult circumstances of incarceration, which are essentially those I have identified in an earlier part of these remarks on sentence. There is also a reference to the offender suffering intense migraine while in prison. This is, in turn, making sleep difficult for him in his present situation.

135 It will be necessary for me to take all these subjective circumstances into account in the assessment of an appropriate sentence for Moustafa Cheikho. One important matter is, of course, the level of criminal culpability. This is primarily to be determined by the criminal nature of the enterprise into which he willingly entered. Within that framework, the Court must also take into account those acts in furtherance of the conspiracy that have been proved beyond reasonable doubt and, to the extent that it is possible to find, his role in the hierarchy of the criminal conspiracy.

136 Mr Button SC made the principal oral submissions on behalf of the offender. There were also written submissions prepared by Mr Button and Mr Nash. These submissions, first, identified the same point as has been made on behalf of the other four offenders. This was that no target had been identified by the prosecution and that the Court could not be satisfied beyond reasonable doubt that the intended terrorist act was to be specifically and directly aimed towards the death of, or serious injury to people. Those matters have been accepted. Thirdly, the submissions argued that the preparatory acts were "very preliminary". Mr Button accepted that it would be open to the Court to find beyond reasonable doubt, on the evidence, that the offender had a role to play in connection with the taking of a number of preliminary steps towards the building of a detonator for a bomb. In addition, the concession was properly made that there is evidence that would enable the Court to accept beyond reasonable doubt that Moustafa Cheikho had a role to play in the concealment operation towards the end of the conspiracy. Mr Button submitted, however, that it would not be open to the Court to find that Moustafa Cheikho was a planner or co-ordinator in the enterprise. Rather the Court might properly find, on the probabilities, that he was “a doer” or a “taskee” as senior counsel expressed it.

137 During the trial, there were two major matters alleged against Moustafa Cheikho each of which was in serious dispute. The first was that he was a person who had trained at a LeT camp in Pakistan in 2001. The second was that Moustafa Cheikho was in fact, the person who attended the Menai Soul Pattison chemist in June 2005 and purchased 24 bottles of hydrogen peroxide. They had been ordered on 9 June 2005 and picked up on 13 June 2005.

138 As to the first matter, I am satisfied beyond reasonable doubt that it was Moustafa Cheikho who attended the LeT camp towards the end of 2001. The identification was made by a fellow trainee Yong Ki Kwon. His evidence had many aspects to it which tended to undermine its reliability. However, in the end I am satisfied beyond reasonable doubt that it was reliable and that Kwon had not made a mistake in the identification. There was compelling circumstantial evidence to indicate that Moustafa Cheikho was in Pakistan at the time and that his travel movements generally supported the Crown case in this regard. These were facts that could not have been known to the witness Kwon at the time of his identification.

139 The jury was carefully instructed at the time that a positive finding that Moustafa Cheikho had trained in Pakistan was not evidence that could establish his guilt of the offence charged. It was no more than a circumstantial piece of evidence that was capable of being used to reflect upon his mindset and intentions, if he were later found to be a participant in the conspiracy. For present purposes, although I have accepted that the offender was at the Pakistan training camp, this is not a matter that aggravates the offence, or that can be regarded as an act in furtherance of the conspiracy. The finding does not add a single day to the sentence to be imposed. It does no more than satisfy me that the radicalisation of Moustafa Cheikho had its commencement in that part of his life history when he trained with LeT in 2001. It predisposed him towards hatred and intolerance towards those persons who were, as he saw it, persecuting Muslims overseas. It established in him a jihadist mentality that was later to be reflected in some of his radical views and intolerant attitudes.

140 I am not satisfied beyond reasonable doubt, however, that it was Moustafa Cheikho who purchased the hydrogen peroxide at Menai in June 2005. The identification evidence was not, by any means, reliable. That said, there can be no doubt that the hydrogen peroxide was purchased in connection with the conspiracy. It will be recalled that it was later discovered by chance behind the premises of Khaled Sharrouf, and not far from the home of Moustafa Cheikho. Moustafa Cheikho had a number of bottles of hydrogen peroxide at his home when it was searched. He gave an explanation for this, although the explanation was of somewhat doubtful validity. But, in any event, it is quite clear, in my view, that Moustafa Cheikho would have been aware that hydrogen peroxide was being acquired for the purposes of the conspiracy, even if he were not the purchaser.

141 I do accept, as I was invited to do, that Moustafa Cheikho engaged in acts in preparation for the manufacture of a detonator suitable for the detonation of an explosive device. This finding relies in particular on material found at his home on 8 November 2005. There were weapons and ammunition found, but I am not satisfied beyond reasonable doubt that these had anything to do with the conspiracy. Of more significance were the contents of a tool box found in the second bedroom. It contained items including battery leads, off-cuts of electrical wire, a single switch, batteries and six small LED type electrical lights with purple ends. There is no need for me to detail all the items found in the toolbox but it is especially important to notice that the small light bulbs were apparently cut from a string of decorative lights. There were as well power sources, leads and battery clips and connectors. This material was plainly consistent with other instructional material in the possession of the conspirators detailing the possible way in which a detonator could be made to connect with a primary explosive. There was also found on Moustafa Cheikho's computer a two-page document being a file located in the Temporary Internet Files folder of the computer. This was for a bombing device triggered by a mobile phone. It had been created on 4 November 2005. A further file was found in the Temporary Internet Files. This was the web-page already mentioned which had an active content and a translation of "How to log on and bomb via an ohmmeter". I should also mention, although there was no dispute about this, that Moustafa Cheikho's fingerprint was found on the red toolbox and on an item in the box.

142 There was expert evidence at trial, called by the Crown, that identified and detailed chemicals and materials related to the construction of explosives and the detonation of explosive devices. Dr Naomi Speers was the principal scientist called. Her evidence principally dealt with the manner in which chemicals acquired or sought to be acquired for the purposes of the conspiracy could be used to make explosives such as TATP and HMTD. It is not appropriate nor desirable for me to go into the details of this evidence. A number of her tests related, however, to the recipes for explosives in the "Illustrated Encyclopaedia of Abdul Bajadin". She was able to demonstrate that an electric current applied to an exposed filament from a small decorative light could be used to initiate an explosion of TATP. Federal Agent Hamming gave detailed evidence of the various methods that would enable the detonation of an explosive such as TATP. Once again, I do not propose to provide details of this evidence. The evidence effectively demonstrated that, with improvisations, a common brand digital alarm clock could be used as a component in the detonation of an explosive. He also confirmed that the method of making a detonator using tungsten wire from a small decorative light globe, as described in the "Illustrated Encyclopaedia", could also work effectively. The witness examined the materials in the red toolbox in this regard. He also gave evidence concerning the materials found on Moustafa Cheikho's computer which I have earlier detailed. These required modification to be effective, but the diagram clearly represented a firing system capable of initiating an explosive charge.

143 The possession by Moustafa Cheikho of the material I have identified, illuminates the proposition that his role, concerned as it was with preliminary steps in the manufacture of a detonator or detonators for explosives, was central to the conspiracy. It fitted in precisely with the roles of others whose task was more directly related to the obtaining of chemicals that might be used in those explosives. The fact that the conspiracy was moving towards the preparation of a detonator for explosives, and that it possessed instructional material to this effect, was an indication that the planning was moving well ahead. It was by no means entirely preliminary, as senior counsel had submitted.

144 I am also satisfied beyond reasonable doubt that Moustafa Cheikho was involved in the concealment process in early November 2005. He was one of those involved in the purchase at Bunnings of silver tape and containers on 3 November 2005. There is material that links him with the Touma end caps, and the Musso vehicle ATE-40N. His fingerprint was found, for example, on the Sydney Morning Herald of 5 and 6 November 2005, an edition which had an article in it concerning John Howard and the new counter terrorism laws. The concealment of materials acquired for the purposes of the conspiracy was centrally important to it at that stage. Indeed, the process was, as I have remarked earlier, successful in a number of areas since some of the materials have never been recovered.

145 As I have found with the offender Hasan, I conclude that there is insufficient evidence to be satisfied beyond reasonable doubt that Moustafa Cheikho's role was that of an overall co-ordinator or strategist in the conspiracy. His role was nevertheless, important and he was fully committed to the outcomes of the criminal enterprise. I accept, however, Mr Button's submissions that his role was more of a “doer”, albeit a very willing one. There is an abundance of evidence in hard copy form at his home, and in the material found on his computer or in discs, that demonstrates that he was fully radicalised and committed to extremist action. This is borne out as well by a number of very intolerant and derogatory statements he made during the course of the conspiracy. These were captured on the listening devices. They are itemised in the evidence and there is no need for me to repeat them in these remarks on sentence.

146 Moustafa Cheikho has shown no remorse or contrition. He has made no acknowledgement of his wrong doing. Indeed, as Mr Button pointed out, he simply maintains his innocence. There is no evidence of his stepping back from the clear extremist views he has held for some time with great firmness and conviction. He remains a danger to the community and, so far as one can predict, he is likely to represent a danger even upon his release many years hence. Mr Button submitted that because of the long sentence he will sustain there must be some prospect of rehabilitation. I agree with Mr Button that it would be an outcome to be cherished, but I see no evidence of it at this stage. None whatsoever, I regret to say. Some recognition in the sentencing process must be given for the way in which Mr Button and his legal team endeavoured to facilitate the pre-trial issues and, indeed, the tendering of evidence before the Court. In the particular situation of this offence, the recognition must however, be necessarily a muted one.

Mohammed Omar Jamal

147 Dr Christopher Lennings interviewed the offender Jamal by way of AVL link on 30 November 2009. The interview lasted about an hour and 15 minutes. The subsequent report summarises a number of details of Jamal's history. He was born on 22 July 1984 in Australia. His parents separated about 15 or 20 years ago. There were eight brothers and four sisters, Jamal being a middle child. He reports that his early life was very strict and that his father was very hard on him. After the father left, Jamal remained living with his mother and the family moved from the country to the city. It appears that his oldest brother was “tough” on him and used considerable force towards him. Jamal maintained that he had received significant abuse and some neglect as a child. He has not seen his father since being in gaol.

148 He is concerned that the male members of his family are not allowed to visit him and does not understand why this is so. He thinks that the authorities are trying to make his life more miserable than it is at the moment. A number of his brothers have criminal records.

149 Jamal reported that he went to school but found it very hard to concentrate. He did not get on well with his teachers in high school and had difficulties with other children. He was expelled from school as a result of conflict between himself and the teachers. This was in year 9. He then went on to TAFE and completed the equivalent of a Year 10 Certificate. He had an interest in computers and developed considerable skills in this area. Shortly afterwards he began his own business of building and fixing computers. This was his job until the time when he was arrested.

150 His history in high school involved his introduction to drugs and alcohol. When he left school he continued to maintain his cannabis links and remained friendly with a substance abusing group. He decided, however, to get away from drugs and alcohol and left that group of friends. His eldest brother had been in gaol but, when he was released, he exerted some influence over Jamal and this association deepened Jamal’s religious feelings. His brother took him away from his substance abusing friends and introduced him to the Mosque. He insisted that Jamal should pray five times a day. By degrees, Jamal became religious and devout. He started going to lessons about Islam. Through this, he was introduced to some of his brother's friends. This group, as it happened, included some of the co-offenders. The introduction led to his early relationship with some of the co-offenders. This relationship continued when his brother left the country. Over time, he developed a relationship in his own right with his brother's friends. He got on well with them. They would go to parks and swim. The relationship deepened, although he claimed that he was not "heavily" into this relationship.

151 Jamal told the psychologist that he regarded himself "as a moderate Muslim". He says the truth is he liked his computers more than he liked religion. He claimed that his brother had downloaded on to his computer a number of radical Islamic tracks. He said he hardly looked at the material. He never looked at terrible scenes of beheadings etc, saying he did not want to look at “that kind of stuff”. He did read some articles but he maintained this was only moderate Islamic material.

152 Jamal is reported to have discussed the offence with Dr Lennings. He said the main allegation he faced is that he purchased chemicals with the capacity to make a bomb. He maintained that he was arrested, then released because allegedly there was insufficient evidence. But then he was re-arrested. He claimed he went back to living his normal life after the initial arrest. He reported that he was found to have helped in ordering two types of chemicals. He said that he did order the chemicals but it was because he was trying to help a friend set up a battery re-conditioning business. He reiterated that he was not "an extreme person, or someone who wanted to hurt others". He was struggling to accept the verdict of the jury. He said he would probably appeal after he was sentenced and this gave him some hope. He claimed it was hard to get a fair trial as a Muslim.

153 Dr Lennings summarised his views by stating that Jamal was a young man experiencing a degree of depression as a result of his already long incarceration. He did not reveal features of psychosis or true paranoia although he had some mild paranoid ideas associated with his distrust of the system which has imprisoned him. The psychologist maintained that, overall, risk assessment indicated a low risk of future anti-social behaviour. He was, however, unable to come to a conclusion about risk of future terrorist activities as there was simply insufficient evidentiary basis that allowed for a risk assessment for such behaviour. Dr Lennings pointed out that Jamal was somewhat constrained in the things he was able to discuss during the interview as he feared that the guards were listening into the conversation, or at least overhearing the discussions. Within the limitations of the interview, the psychologist said that he could not find support for thinking that Jamal was at a high risk of committing a further terrorist act. He presented as a man who espoused moderate Islamic ideas and who was opposed to jihadism and extremism. Despite some of the evidence, he claimed that he was not influenced by radical ideas and jihadist literature.

154 Dr Lennings made the obvious points that Jamal's future in prison would be a difficult one. He recommended that he have access to educational programs and that he be given as many opportunities as possible. He recommended that restrictions against his family visiting him be reviewed. At present Jamal is only able to see his mother, a sister and a niece. He has been told that he cannot see other members of his family for security reasons.

155 Mr Scragg, who appeared for Jamal, called three witnesses on issues related to sentence. The first was Soliman Gilany who is the Imam of the Mosque at Bathurst. This position involves him being the Muslim chaplain for the gaols situated at Bathurst and Lithgow. His first met Jamal in about the middle of 2006 when Jamal was in Lithgow gaol. His duties required him to go to the gaol on a weekly basis and there he ministered to the spiritual needs of inmates who were Muslims. He saw Jamal over a period of about two months in the first instance. Jamal was then taken to another facility but then later returned to Lithgow. During this second period, the Imam saw Jamal about once a week for a further six months. The last time he saw him was about late 2007.

156 Mr Gilany claimed that he had “tested” Jamal on occasions, He spoke to him to see what his attitude was in terms of violent jihad being justified here in Australia. For example, he tested him in relation to the disaster in Bali. He maintained that Jamal expressed views that were similar to his own.

“...he knew that I thought this was not an action of Muslims. Muslims don’t kill people on the beach or in the clubs or anywhere else, and he said, ‘that’s my view too’.”

157 The Imam said that he “believed” Jamal and thought he was telling the truth when he discussed his attitudes. He claimed that he could not detect any hatred towards Australia in Jamal. Jamal was more concerned to look after his mother. He said Jamal was a very emotional person and a great listener. Jamal did not express any extremist views to him. He thought that when Jamal was ultimately released into the community he would not be any danger or risk to the safety of the community. He said that if Jamal were released from prison, he would be prepared to see him on a regular basis and give him guidance.

158 The Imam was cross-examined briefly by Mr Maidment SC. He repeated that he had spoken with Jamal about his being involved in the ordering of the chemical ingredients for making bombs. I shall set out the relevant questions and answers as they are quite brief: -

“Q. Yes. What did he tell you?

A. He say, “Look, my intention, I have never has intention to do anything like that and I didn’t never had any chemicals.” That’s what he told me. He told me he didn’t have any – he didn’t brought any – he didn’t had any chemicals and his intention is not to get chemicals and blow up anywhere and he asked me if I believe him and I say “Well I do. I mean look, you don’t need to lie to me because there is nobody here”.

Q. Did he tell you why he was ordering battery acid, distilled water, hydrochloric acid, citric acid, methylated spirits and glycerine?

A. No sir, he didn’t tell me. We didn’t went into to any details, because one, I didn’t have the time. The second thing -

Q. You didn’t, did you? You only had a short --

A. No, I didn’t . He didn’t went to the details with me and I didn’t know the details of whatever he was --

Q. Wasn’t that pretty significant though, if you were endeavouring to really press him, to find out what the essence of this man was? Wouldn’t that be the one area that you would really press?

A. Look, when I ask him “Did you had really intention of something like this?” He said “To be honestly, no”. And I thought why he should lie to me?

Q. Did he tell you what his intention was?

A. He tell me he didn’t have any bad intentions. He didn’t have any intentions --

Q. No, did he tell you what it was though? Why did he get involved in ordering these chemicals? Did he tell you why?

A. I didn’t know.

Q. You didn’t know? He never told you?

A. No, he didn’t tell me that.

Q. You didn’t ask him?

A. No.

MAIDMENT: That’s all, your Honour.”

159 The second witness called was Anthony Chan, a friend of the offender, Jamal. He described Jamal as “friendly...always greets with a smile...he is a good guy”. He maintained that Jamal had never discussed any hatred of Australia with him. He heard in December 2005 that Jamal had been arrested. He said he was horrified. Jamal had never expressed “those kind of views” to him. He said that they never talked about “his religion or anything like that”.

160 The third and final witness called was Jamal’s brother, Abdul. He is employed as a project manager and had attended Court with other members of the family on 17 December 2009. He was not living at home at the time of Jamal’s arrest but he saw the family about once a month during 2005. He confirmed that Jamal was very religious and that he prayed with his brother when he was with him. He said his brother did not express any extremist views to him in 2005. He too was shocked when he heard that his brother had been arrested in December of that year. He couldn’t believe that his brother “would do anything like that”.

161 Abdul Jamal confirmed that the family was very close to Omar. Upon his eventual release, he said the family would do all they could to support him and to help to re-integrate him back into society. He confirmed that the background information relating to Omar Jamal and his upbringing (as expressed in Dr Lenning’s report) was generally accurate.

162 There are two points I need to make in relation to the evidence tendered on the offender’s behalf. First, I accept that there is sufficient confirmation of the history of the offender’s background and upbringing to enable me to accept it as reliable. Secondly, I bear in mind that Jamal has not given evidence before me and the present state of his mind has not been explored or tested in any reliable way. The evidence which I have summarised purports to give indications, one way or another, whether Jamal had espoused jihadist sentiments and whether he poses a risk or not in terms of recidivism in relation to terrorism offences or, for that matter, criminal behaviour generally. It purports to examine his actions and motives in ordering chemicals. The Crown has made the point that the offender was not called to give evidence during the sentence hearing. This is a valid point. In my view, little weight can be given to statements of a self-serving kind in circumstances where the offender has not himself given evidence of his present state of mind. For that reason, the statements need to be treated with a considerable degree of caution (R v Qutami [2001] NSWCCA 353). Indeed, the brief and rather gentle cross-examination of Imam Gilany shows clearly how impressions may be gained by a witness, even an honest witness, when a degree of vigorous probing has been absent from his questioning of an offender.

163 I turn now to consider the level of criminal culpability of Omar Jamal. Once again, this is primarily determined by the fact that the jury’s verdict requires a finding that he voluntarily entered into the criminal conspiracy to do acts in preparation for a terrorist act or acts. I am satisfied beyond reasonable doubt, as were the jury, that Jamal did so. Essentially, the submissions made on his behalf were, first, that he participated in the conspiracy at the behest of others. Secondly, that he was only involved in the conspiracy for a relatively brief period of time. Thirdly, that he withdrew from active participation in the conspiracy after 13 October 2005. Finally, that, in terms of a hierarchy (in so far as one can be established) Jamal stood on a lower rung than the others. The further submissions made by Mr Scragg on 17 December 2009 urged the Court to find that Jamal has good prospects of rehabilitation and that he has learnt his lesson so that there is no need to include in the sentence an element that relates to protection of the community.

164 The Crown did not dispute that Jamal may have participated in the conspiracy at the behest of others who were older and more senior than he. Secondly, the Crown did not dispute that he came to the conspiracy later than the others, although the Crown maintained that his involvement ran at least between 28 September and 8 November 2005. Specifically, the Crown did not accept that it had been established, on the probabilities, that Jamal withdrew from active participation on 13 October 2005. The Crown accepted that, compared to the others, Jamal might properly be placed at the lowest point in the hierarchy, although it maintained his criminality was nevertheless at a very high level. The Crown submitted that Jamal had poor prospects of rehabilitation and that there was no evidence that could reliably satisfy the Court that he had withdrawn from his extremist convictions, beliefs and intentions. In that regard, the Crown submitted, he still posed a threat to the community.

165 I shall endeavour to resolve these competing submissions shortly. For the moment , it is fair to say there is little dispute between the Crown and Mr Scragg as to the nature of Jamal’s acts in furtherance of the conspiracy. I shall briefly make those relevant findings of fact.

166 I am satisfied beyond reasonable doubt that on 28 September 2005 Jamal attended Auto King with Hasan and they ordered: -

(i) 10 x 20 litre drums of 45% strength sulphuric acid;

(ii) 5 x 10 litres of distilled water; and

(iii) 12 x 1.5 litres of distilled water.

167 A deposit was paid by Mr Hasan and, at the request of Mr Hasan, the false name phone “George Markis” was activated to be used in connection with the chemical transactions. Between 28 September and 13 October 2005 on a number of occasions Jamal attended Auto King enquiring about the order. The distilled water was collected but, as it happened, the chemicals were not.

168 I am further satisfied beyond reasonable doubt that, at the behest of Hasan, Jamal attended Chemical Cleaning Solutions on 28 September 2005 and ordered: -

(i) 200 litres of 98% methylated spirits;

(ii) 50 litres of hydrochloric acid;

(iii) 25 kilograms of citric acid, and

(iv) 20 litres of glycerine.

169 A deposit of $150 was paid over by Jamal. The money, it seems, had been given to Jamal by Hasan. It is not known where Hasan obtained the cash. Jamal gave a false name at the time of making the order. These chemicals were never collected, although the reason for that is not clear. I am satisfied beyond reasonable doubt that on 6 October 2005 Jamal attended Peter’s Hardware at Greenacre. Once again, this was done at the behest of Hasan to enquire about an order for acetone which had been placed by Hasan on 28 September 2005. Once again Jamal gave a false name “George” and supplied the “George Markis” telephone contact number. Jamal did not collect the acetone but referred the matter to Hasan, who himself, collected it on 22 October 2005.

170 Finally, I am satisfied beyond reasonable doubt that Jamal and another (unidentified) male attended Auto King on 13 October 2005. This was to pick up the distilled water and the sulphuric acid. The distilled water was collected and the two men were then directed to the suppliers Autoquip to collect the acid. Jamal and the other man, accompanied by an employee of the retailer, then attended the supplier Autoquip to collect the 200 litres of sulphuric acid. The sulphuric acid, however, was not collected on that day, although the reasons for this are not clear. It seems that the sulphuric acid was never collected. Later that day, Jamal took the distilled water he had picked up to Hasan and gave it to him.

171 Consistently with the jury’s verdict, I am satisfied beyond reasonable doubt that Jamal held each of the intentions necessary to demonstrate that the agreement into which he had entered related to doing acts in preparation for a terrorist act or acts. I am further satisfied that his motivation for joining the conspiracy was an effort to protest, through a terrorist act, Australia’s involvement in the war upon Middle Eastern nations. It was to intimidate the public and, in turn, the Government of Australia so as to bring about a change in governmental policy towards the Muslim situation overseas. I cannot be satisfied beyond reasonable doubt that Jamal’s intentions were to cause death or serious injury to members of the public but as the chemicals were plainly designed to be part of an explosive or explosives, there is no doubt, that, at the very least, his intention was that there would be serious damage to property, carrying with it the possible risk of death or serious injury to civilians.

172 I turn then to the first disputed issue namely whether I can accept, on the probabilities, that Jamal consciously withdrew himself from an active role in the conspiracy on 13 October 2005. Mr Scragg has argued that the Court may make this finding based on a number of matters. First, that after 13 October 2005 Jamal did not appear to have any further involvement with the ordering or collection of chemicals. Others did so, but he did not. Secondly, the fact that, thereafter, Jamal used a mobile service in a further false name but did so in a way that could not be said to be covert in any sense. Thirdly, his lack of interest in Sheikh Bakr’s attendances in Sydney at the end of October and beginning of November 2005. Fourthly, Mr Scragg pointed to the fact that Jamal had deleted certain instructional and other material from his computer prior to 8 November 2005. Fifthly, reliance was placed on the fact that he did not appear to be involved in the covert meetings organised by way of text messages in late October and early November 2005. Finally, it was suggested that there was no relevant inculpatory conduct between his initial arrest on 8 November and his final arrest on 21 December 2005.

173 The first point I would make is one I have made already. It bears repetition. There is no evidence, either at trial or during the sentencing process, from the offender Jamal himself. There is no explanation before the Court, for example, as to why Jamal did not pick up the sulphuric acid on 13 October 2005. The Crown suggested before the jury that Jamal had been “spooked” by the discussion that took place at the factory when the acid was to be collected. Certainly there was evidence that might justify such a finding. But I am simply left in the position where I do not know why it was the acid was not collected. Secondly, I cannot be satisfied, even on the lower standard of the probabilities, that Jamal consciously withdrew from collecting any further chemicals or, if so, why that was done. I accept that he used his false name mobile phone in a manner that was by no means covert, indeed the very opposite. I accept that he did not appear to have any connections with Sheikh Bakr over the two days mentioned earlier. I accept also that certain material was deleted from his computer prior to 8 November 2005, although I note that the CDs containing the deleted material were retained at his home. There is no evidence to suggest that he was involved in the covert meetings organised in late October and early November 2005. While I could not be satisfied beyond reasonable doubt that he was directly involved in the concealment activities, it remains the position that his fingerprints were found on two items in FDT-113, a vehicle obviously used to bury and conceal items collected in relation to the conspiracy. His DNA was found on a sleeping bag in Musso ATE-40N, the vehicle found in early 2006 which was also plainly used in the concealment process. No explanation or evidence has been given about either of these matters.

174 Looking at all these matters overall, while I accept that Jamal was not involved in the purchasing or collection of chemicals after 13 October 2005, I am not satisfied, even on the balance of probabilities, that he had withdrawn from the conspiracy as from that date. I am satisfied beyond reasonable doubt that he remained a participant in the conspiracy until 8 November 2005, although I accept that the conspiracy came to an end either on, or shortly after that date. I accept that there was no relevant inculpatory conduct between his initial arrest on 8 November and his final arrest on 21 December 2005.

175 I turn now to examine the second disputed issue. This is the difficult question as to whether Jamal has abandoned his extremist convictions. I am not persuaded, even on the lower standard of the balance of probabilities, that Jamal’s commitment to extremist ideology and actions had ceased as at 13 October 2005. Mr Scragg submitted that what Jamal did not do after 13 October 2005 spoke more forcibly as to his level of commitment and his ongoing risk level than any plea of guilty or statement made on oath. I do not accept this submission. The following points can be made. First, I repeat once again that Jamal has not given evidence before the Court and his present state of mind, or the state of mind he held between October and 8 November 2005, has not been reliably explored. The Court is really being asked to speculate or guess about the matter in the absence of reliable evidence. Secondly, there is evidence that is inconsistent with Mr Scragg’s claim on his client’s behalf. For example, Jamal was interviewed by Detective Moroney on 8 December 2005. This “friendly” interview was plainly designed to draw Jamal out as to the doings of the conspiracy. The police knew by then that Jamal had been recently identified as one of the persons involved in the 28 September 2005 ordering of chemicals. Detective Moroney invited Jamal to “feel free” to discuss the matter at any time with him, and told him that he would be prepared to listen. Jamal said that he had nothing to fear and, in effect, declined to say anything further to the detectives. The police officer went so far as to suggest to Jamal that if he had been involved in the purchase of chemicals, the police would be prepared to listen to any proper explanation as to why he may have purchased those items. Again, Jamal, as he was entitled to do, declined to say anything further on the subject. During the course of the conversation, the following exchange took place: -

Moroney: “We wanted to talk to you to ensure that you understand where we are coming from”.

Jamal: “I have nothing to be concerned about, I know nothing about no one”.

Moroney: “I appreciate that, but I want you to clearly understand that if you know of anything, or if you need to talk to some one in confidence, you can come to me at any time and I am happy to talk with you about anything”.

Jamal: “Yeah, I don’t know anything. You have no evidence against me or the others. There is no evidence at all”.

And later Jamal added: -

“”Yeah, I am aware of that. But you have nothing otherwise it would be out there by now. You arrested me and didn’t charge me, so you have nothing”.

176 Of course, as I have said, Jamal was entitled to say nothing in these circumstances. However, his replies do not sit easily with the suggestion that, as at December 2005, he had consciously abandoned his extremist views and position.

177 A further illustration of the same point, directed to his present state of mind, is to be found in his prison interview with Dr Lennings. During the interview, Jamal continued to maintain his innocence and, in particular, continued to suggest that his involvement with the purchase of chemicals had a completely innocent explanation and had nothing whatsoever to do with terrorist activities. Jamal was, and is, of course, completely entitled to assert his innocence and to do so upon appeal. The responses to which I have referred, however, are by no means consistent with a deliberate decision, made in October 2005, to step back from the aims of the conspiracy. Nor are they consistent with and, consequently, evidence of a rejection of or a withdrawal from extremist beliefs, intentions and actions. They are not consistent with the presence of some kind of moral revelation or sudden conversion. They do not sit easily with Mr Scragg’s submissions.

178 Regrettably, I must conclude that I can find no remorse or contrition on the part of the offender Jamal. I can find no acknowledgement by him of the wrongfulness of his actions or acceptance by him of responsibility for what he has done. With the same sense of regret, since he is a young man with no real criminal history, I find it difficult to assess otherwise than that his prospects of rehabilitation are not good. It may be, with the passing of the years, that he will come to acknowledge his responsibility in relation to the offence for which he has been convicted. But at the moment, I see little prospect of it. I take into account his youth and the conditions of his incarceration to date. I take into account the difficult time he will have in prison as a consequence of his classification as an “AA” offender. I accept, so far as it can be ascertained, that he was lower in the hierarchy than the other men. He was not, on the probabilities, a co-ordinator and his actions were taken at the behest of others. I accept his involvement came about because of his involvement with men who were older and more senior than he. Nevertheless, Jamal had deliberately thrown his lot in with those men and it is not surprising that they were able to persuade him to join the enterprise. In my view, he did so willingly and because of the extremist views and convictions he had embraced. He was committed to the outcome of the enterprise. He shared the views of the others. His role in the conspiracy was important because he was, as Mr Scragg’s submissions noted, a valuable asset due to his non-descript appearance, his youth, his Australian accent and apparently affable manner. In addition, he was not subject to the same level of surveillance to which other members of the conspiracy had been exposed. In imposing a sentence on Jamal I will take into account his apparent position at the lower end of the hierarchy, such as it is, but it must be said that his criminality remains at a significant level. There is, as counsel submitted, a difference but the difference is not, in my view, a significant one. Jamal’s sentence will be backdated to 21 December 2005 as he is entitled to credit for the time he has spent in custody.

Pronouncement of sentence

179 I turn now to pronounce sentence on each offender.

180 As a preliminary, it is necessary for me to state that s 19AB of the Crimes Act 1914 (Cth) enables the Court in the present circumstance to fix a non-parole period where a head sentence is imposed on each offender. It is appropriate in my view, that a non-parole period be determined in relation to the sentence to be imposed on each offender. The purpose of the non-parole period is to provide a mitigation of the punishment of the offender in favour of rehabilitation through conditional freedom. While I have determined that the prospects of rehabilitation are poor in the case of each offender, I nonetheless determine that it is appropriate that he be given the opportunity to achieve rehabilitation. The non-parole period, however, must incorporate all relevant sentencing principles including denunciation and deterrence.

181 Section 19AG of the Crimes Act 1914 (Cth) requires that, for an offence of the present kind, the Court must fix a non-parole period at a percentage of at least three-quarters of the sentence. The Court may increase the percentage above three-quarters of the sentence but it has no capacity to restrict the non-parole period below that percentage. While there are arguments that might be advanced to suggest that, in the case of each offender, the non-parole period should be fixed at a higher percentage than the minimum three-quarters mentioned in the section, I have decided ultimately that the non-parole period may appropriately be set at the percentage I have mentioned. No submissions were made by the Crown to suggest otherwise and, in those circumstances, I do not think it proper that I intervene to alter the minimum percentage.

182 It will be a matter for the Attorney-General of the day to determine whether any of the offenders should be released at the expiry of the non-parole period. That may depend upon each offender’s behaviour in prison. It may depend upon the extent of rehabilitation evidenced, if any, or upon the Attorney-General’s view as to whether each offender has, after serving a lengthy non-parole period, renounced the extremist views which underlay the commission of the serious crime involved in this trial. Even if released at the end of the substantial non-parole period, each offender will undoubtedly be subject to conditions that will enable scrutiny of his rehabilitation and his renouncement of extremist convictions. Any breach of those conditions would require the offender to be returned to prison to serve the balance of the term of the sentence.

183 Mohamed Ali Elomar, I sentence you to a term of imprisonment of 28 years commencing on 8 November 2005 and expiring on 7 November 2033. I fix a non-parole period of 21 years in respect of that sentence to commence on 8 November 2005 and to expire on 7 November 2026. The period of 21 years is the minimum period the offender must serve in custody.

184 Khaled Cheikho, I sentence you to a term of imprisonment of 27 years commencing on 8 November 2005 and expiring on 7 November 2032. I fix a non-parole period of 20 years and three months in respect of that sentence. The non-parole period is to commence on 8 November 2005 and is to expire on 7 February 2026. The period of 20 years and three months is the minimum period the offender must serve in custody.

185 Abdul Rakib Hasan, I sentence you to a term of imprisonment of 26 years commencing on 8 November 2005 and expiring on 7 November 2031. I fix a non-parole period of 19 years and six months in respect of that sentence. The non-parole period is to commence on 8 November 2005 and is to expire on 7 May 2025. The period of 19 years and six months is the minimum period the offender must serve in custody.

186 Moustafa Cheikho, I sentence you to a term of imprisonment of 26 years commencing on 8 November 2005 and expiring on 7 November 2031. I fix a non-parole period of 19 years and six months in respect of that sentence. The non-parole period is to commence on 8 November 2005 and is to expire on 7 May 2025. The period of 19 years and six months is the minimum period the offender must serve in custody.

187 Mohammed Omar Jamal, I sentence you to a term of imprisonment of 23 years commencing on 21 December 2005 and expiring on 20 December 2028. I fix a non-parole period of 17 years and three months. The non-parole period is to commence on 21 December 2005 and is to expire on 20 March 2023. The non-parole period of 17 years and three months is the minimum period the offender must serve in custody.

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LAST UPDATED:
17 February 2010