Regina v Lodhi [2006] NSWSC 691 (23 August 2006)

Last Updated: 28 August 2006

NEW SOUTH WALES SUPREME COURT

CITATION: Regina v Lodhi [2006] NSWSC 691



CURRENT JURISDICTION:

FILE NUMBER(S): 2005/1094

HEARING DATE{S): 19/04/06 - 19/06/06; 29/06/06; 13/07/06

DECISION DATE: 23/08/2006

PARTIES:
Regina v Faheem Khalid Lodhi

JUDGMENT OF: Whealy J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Mr R. Maidment SC; Mr. G. Bellew - Crown
Mr P. Boulten SC; Mr P. Lange - Offender

SOLICITORS:
DPP (Commonwealth) - Crown
Michael Doughty (Solicitor) - Offender


CATCHWORDS:
Criminal proceedings - Sentence - Terrorism offences - need for deterrent sentence of some length to reflect seriousness of offences

ACTS CITED:
Crimes Act 1914 (Commonwealth)
Criminal Code ss 101.4, 101.5 and 101.6
Crimes (Internationally Protected Persons) Act 1976 (Commonwealth)
Anti-Terrorism Act 2004

DECISION:
In relation to the second charge in the indictment I sentence you to a term of imprisonment of 20 years commencing on 22 April 2004 and expiring on 21 April 2024. In relation to count 1 in the indictment, I sentence you to a term of imprisonment of ten years. This sentence is to commence on 22 April 2004 and will expire on 21 April 2014. In relation to the third charge in the indictment, I sentence you to a term of imprisonment of ten years. This sentence should commence on 22 April 2004 and expire on 21 April 2014. The sentences in respect of counts 1 and 3 are to be served concurrently with the sentence in relation to count 1 and with each other. In relation to the three sentences, I fix a single non-parole period in respect of those sentences for 15 years commencing on 22 April 2004 and expiring on 21 April 2019.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST


WHEALY J


WEDNESDAY 23 August 2006


2005/1094 - REGINA v Faheem Khalid LODHI


SENTENCE


1 HIS HONOUR: On 19 June 2006 Faheem Khalid Lodhi (“the offender”) was found guilty by a jury in respect of three of the four charges on which he had been indicted. The three charges were as follows. First on or about 3 October 2003 at Sydney, the offender collected documents, namely two maps of the Australian electricity supply system, which were connected with preparation for a terrorist act, namely bombing part of the system, knowing the said connection.

2 Secondly, a charge that the offender, on or about 10 October 2003 intentionally did an act in preparation for a terrorist act, namely he sought information concerning the availability of materials capable of being used for the manufacture of explosives or incendiary devices.

3 Thirdly, a charge that on or about 26 October 2003, the offender possessed a document containing information concerning the ingredients for and the method of manufacture of poisons, explosives, detonators and incendiary devices connected with the preparation for a terrorist act, knowing the said connection.

4 The first and third of these charges carries a maximum penalty of 15 years imprisonment. The second charge carries a maximum penalty of life imprisonment.

5 As I have indicated earlier, there was a fourth charge namely, a charge that on or about 24 October 2003 the offender made a set of aerial photographs of certain Australian Defence establishments. The jury found that the accused was not guilty in respect of this charge.

6 It is now necessary for me to make findings of fact in relation to each of the charges in respect of which the offender has been found guilty. Those facts must reflect and be consistent with the jury’s verdict. Since these are Commonwealth offences, it is also necessary for me to have regard to the matters set out in Part 1B of the Crimes Act 1914 (Commonwealth) and, more specifically, to the matters set out in s 16A of the Act. There are other provisions of the Crimes Act that I must also take into account.

7 I have had the advantage of comprehensive submissions made by Mr Maidment SC and Mr Bellew for the Crown. I have had the advantage as well of equally comprehensive submissions from Mr Boulten SC and Mr Lange for the offender.

The facts relative to the offences

8 In mid-May 2003 a French citizen, one Willie Brigitte, arrived in Australia. This man, I accept, had trained at a Lashkar-e-Taiba paramilitary training camp in Pakistan in late 2001. One of his fellow trainees, Yong Ke Kwon, gave evidence in the trial about his own training at the Lashkar-e-Taiba camp and his meeting there and relationship with a man he knew as Salahudin. He identified Salahudin from a photograph of Willie Brigitte shown to him in November 2003. The organisation Lashkar-e-Taiba has now been prescribed as a terrorist organisation by the Australian Government and it is also regarded in this light by the Government of Pakistan. Its primary focus is on the removal of Indian security forces from India controlled Kashmir. But it has a broader interest in terrorism generally and may, perhaps, have had some links with the terrorist organisation al-Qaeda. It is clear, however, that military and religious training occurred in the Le-T camp attended by both Brigitte and Kwon; and that the training related not only to the local situation but was intended to aid in the battle against oppression of Muslim communities elsewhere.

9 There is very little detailed evidence about Willie Brigitte’s activities while he was here in Australia. This much however is clear: a few days before he arrived in Australia, the offender set up a mobile phone service in a false name. It has been referred to throughout the trial as the “Sam Praveen” telephone service. Two calls were made from Willie Brigitte’s phone in France to the Sam Praveen telephone service. The first occurred on 7 May 2003, a day or so after the offender had obtained the service. The second of these calls was made on 13 May 2003, the day before Brigitte left France for Australia. There was also evidence to show that, although the offender had never met Willie Brigitte, arrangements had been made for him to meet and collect him on the day of his arrival in Sydney. This is, in fact, what happened and two the men spent most of the day together.

10 The connecting link between the offender and Willie Brigitte appears to be a somewhat shadowy figure in Pakistan known to both men. His name was “Sajid”. The offender said he met him in Pakistan at a mosque during visits there in 2002 and 2003. The offender said it was Sajid who asked him to look after Willie Brigitte on his arrival in Australia. I have no doubt that this was so. I do not accept, however, that the relationship between the two men was an innocent one, as the offender endeavoured to explain it. His version was that he gave assistance to Willie Brigitte as a matter of courtesy to a stranger travelling in a new country; and that he did so at the behest of a mutual friend who had asked that such courtesy be extended. In my view, the evidence establishes that Sajid was endeavouring to co-ordinate a liaison between the offender and Willie Brigitte in Sydney so that, in general terms, the prospect of terrorist actions in Australia could be explored.

11 I should say immediately that there is no evidence to indicate precisely what Brigitte’s role was to be in relation to any terrorist activity. There is no evidence to indicate, for example, that he himself was to be involved in the commission of any of the three offences in respect of which the offender has been found guilty. But there was a continuing association between the offender and Willie Brigitte during his short stay in Australia. This is exemplified by a number of calls made by an Australian Mobile phone service associated with Brigitte (again in a false name, known during the trial as the “John Huck” telephone service) to the “Sam Praveen” telephone service.

12 There is also evidence that Willie Brigitte’s French telephone service made approximately nineteen telephone calls to Sajid in Pakistan before Brigitte left for Australia. After Willie Brigitte’s detention and deportation from Australia, there was evidence that the offender telephoned Sajid’s telephone number from a public phone box in Campsie. This occurred after the offender had been at an Internet Café with one Abdul Rakib Hasan. Hasan, who worked in a Halal butcher’s shop at Lakemba, also knew Brigitte.

13 There was also evidence that the offender and Hasan visited Brigitte at his flat at Boorea Avenue, Lakemba on at least two occasions. Although the evidence does not enable me to discover the details of what transpired between the offender and Willie Brigitte, I am satisfied beyond reasonable doubt that the relationship was not an innocent one. I am also satisfied that the connecting link between the two men was their joint interest in contemplating and discussing the possibility of some type of terrorist activity in Australia. This association came to an abrupt end in October 2003 in circumstances that achieved considerable notoriety in the Australian media. French authorities had notified Australian Intelligence that Brigitte had a substantial connection with terrorism and this, so it appears, led to his sudden detention and swift deportation from Australia to France. It seems that he is still in France awaiting determination as to whether he is to face terrorism charges under the laws in that country relating to his activities in France or elsewhere. Brigitte gave no evidence in the trial.

14 A little under a week before Brigitte’s detention took place, the offender obtained a desk map and a wall map of the electrical supply system from Energy Supply at Level 6, 208 Pitt Street Sydney. He told Ms Bakla, who worked for the organisation, that he was starting a business and that he wanted to place a wall map in his office. The offender was asked to fill out a form giving his name, address and company name. The name he wrote down was “M Rasul”. His position was given as “partner”; and the company name as “Rasul Electrical”. The postal address given was “Post Office Box 2359 Smithfield”. The telephone number, which was altered by Ms Bakla to include an additional 9, was 9230.051.

15 There was no contest at trial that it was, in fact, the offender who made these enquiries and that it was he who was supplied with the maps. The offender explained before the jury that his obtaining of the maps had nothing whatsoever to do with terrorist related activities. In fact, he said that he wanted them for a business of an electrical nature he was proposing to establish. The offender expressly disclaimed any intention that these maps were connected with, or in any way involved in or part of any plot, to carry out a terrorist act against the Electricity Supply System. The offender also explained why he filled out the application form in the way he did. The Post Office Box address and the telephone number were simply errors. The name “Rasul” or “Mohamed Rasul” was to be part of the name he proposed to give the electrical company when it was established.

16 Consistently with the jury’s verdicts, I find that these explanations and excuses were untrue. The real reason the offender gave a false name, telephone number and address was that he did not want his own identity to be known. This was because his plain purpose in securing the maps related to an intention he held at the time to use the maps in connection with a proposal for an enterprise that would involve bombing part of the Australian Electricity Supply System.

17 Not only did the offender intend to use the maps for this purpose when he collected them, it was also his intention that any bombing of the electrical system by the detonation of a homemade explosive or incendiary device would be done to advance the cause of violent jihad and be carried out so as to intimidate the Government of Australia and the Australian public.

18 The offender’s association with Willie Brigitte and the man Sajid in Pakistan were not the only matters relevant to the existence of these intentions. There was also found in his possession a significant amount of material which threw considerable light on his intentions in relation to these offences. The material included a CD-Rom which was described, throughout the trial, as the “jihadi CD”. This was a virtual library containing exhortations to violent jihad, justifications for suicide bombings (called “martyrdom” in the text of the material), and which extolled the virtues of those who had given their lives to the murder of innocent civilians and others in the name of extremist Islam. Much of the material exhorted the reader or listener to follow, or at least support violent jihad. In addition to this CD, there were two volumes of the Lion of Allah, other material and Chechnyan videocassette glorifying those who had given their lives in the fight between Chechnya and Russia.

19 The offender told the jury that he had never seen the “jihadi CD” and that he could not explain its presence in the material found near his computer at home. Although he acknowledged the existence of some of the other material I have mentioned, he explained that he had either not seen it or, if he had seen it, it was only in part and that he had generally little to do with the contents.

20 I do not accept these explanations. Nor do I accept the offender’s attempts to distance himself from the material so obviously found in his possession. Rather, I think the truth is that all this material makes it clear that the offender is a person who has, in recent years, been essentially informed by the concept of violent jihad and the glorification of Muslim heroes who have fought and died for jihad, either in a local or broader context. The material is eloquent as to the ideas and emotions that must have been foremost in the offender’s mind throughout October 2003 and later, at least until the time of his arrest.

21 Although these specific intentions were, I am satisfied beyond reasonable doubt, at the forefront of the offender’s mind when he collected the maps, it seems clear that he had not at that stage necessarily made a final determination as to the precise target, or the precise area of the target, that was to be hit. Indeed, the maps themselves would not have given sufficient information to the offender. Nor would they, of themselves, have given sufficient insight into how such an attack upon the electrical system could be maintained. They were, however, a starting point for a terrorist related enterprise potentially of some considerable magnitude.

22 Of further relevance to this first offence, and indeed, to each offence found proven against the offender, was the material located at his workstation during the execution of a search warrant on 26 October 2003. This comprised 15 pages of carefully written out handwriting in the Urdu language, or at least in the Urdu script. It was not disputed that this document was in the handwriting of the offender. He explained that, many years earlier, he had seen this material written in English on a computer he was using at University during the course of his studies. Although he maintained that the information was of no special interest to him, it is obvious that he must have spent several hours writing out the material he selected from the computer screen. He then kept it in his possession for a considerable time afterwards. The offender maintained that he had forgotten about this material and that it had found its way to his workplace by accident, as it were.

23 I reject the offender’s explanation for the possession of this document. Moreover, I find that its contents were central to his thinking and state of mind at least during 2003 and thereafter. The offender’s attempt to explain or justify his possession of this material was simply incredible.

24 These 15 pages were fairly described by the Crown in its submissions before the jury as “a terrorism manual for the manufacture of homemade poisons, explosives, detonators and incendiary devices”. Although the recipes were not particularly sophisticated or scientific, they included formulas for homemade grenades, petrol bombs and, relevantly for this present purpose, an explosive device containing an explosive known as urea nitrate. This particular explosive could be easily made, as the evidence of Dr Spears and Mr Taylor showed during the trial. Once detonated, it had the capacity for significant damage to property and for substantial loss of life for those who may have been in the vicinity when the explosion occurred. This situation, of course, would depend on the size of the urea nitrate parcel detonated.

25 Throughout the trial, a central issue for the jury’s determination had been the state of mind or the intentions of the offender. The contents of these documents, Exhibit “G” and its English translation Exhibit “H”, make it plain beyond reasonable doubt that, when he collected the wall maps from Ms Bakla at Energy Supply, the subject of homemade bombs or explosives was likely to have been at the forefront of his thinking.

26 I am not satisfied beyond reasonable doubt, however, that the offender had at any time made up his mind that it would be he who would carry out the bombing of the Australian Electrical Supply System. Indeed, I am perfectly satisfied that the proposal had not reached the stage where the identity of a bomber, the precise area to be bombed or the manner in which the bombing would take place, had been worked out. The obtaining of the electrical maps was at a very preliminary stage indeed, a matter, which the Crown accepted throughout the presentation of its case to the jury.

27 The day after Willie Brigitte’s detention commenced, the offender exchanged faxes with one Melissa Phelps. She was an employee of Deltrex Chemicals. Here again, he used a false name and a fictitious address. The fax-headed sheet he created was this time that of a non-existent business called “Eagle Flyers”. It had a Post Office box “2286 Smithfield”. This was a fictitious business identity in all respects although, of course, the fax number of the firm of Thomson Adsett Architects was given to Ms Phelps. It is also of interest to note that the offender, in making the enquiry, spelt his first name differently from its usual spelling; and he signed his name with a signature which was not his usual signature.

28 The offender told Ms Phelps that he was going to start up a detergent business. He gave Ms Phelps a list of the chemicals he wanted. Ultimately a price list for certain chemicals was sent by Ms Phelps to “Fahim” at Thomson Adsett. It became Exhibit “J” in the trial. The price list contained and included chemicals which were to be found on the Urdu document Exhibit “G”. In particular, the list gave prices for minimum quantities of urea and nitric acid, the components for a urea nitrate homemade bomb.

29 Exhibit “J” was not however received by the offender. It found its way to Ms Kenny, his superior, at work. Ms Kenny confronted the offender. She asked him whether the document had anything to do with his work. He told her that it did not. It has to do, he said, with his family company. He explained to her that his fax was broken and he needed to use the work fax for “family company business”.

30 Before the jury, the offender gave a similar explanation. He explained that he had a proposal for exporting chemicals to Pakistan. Indeed, there was other evidence in the trial, from his family in Pakistan and other people, that at one stage he had contemplated some sort of business venture, which would involve the exporting of certain chemicals from Australia.

31 I am satisfied beyond reasonable doubt, however, that the explanation given to the jury for the offender’s obtaining the price list of chemicals from Deltrex Chemicals was a false explanation. The truth of the matter was that he wanted the information to assist in his proposal for planning and carrying out a bombing enterprise within Australia as part of a terrorist act. Again, it is quite possible, as at 10 October 2003, that the offender may well have still had in contemplation the bombing of part of the Electrical Supply System. It is not possible to say, however, that when the enquiries were made of Deltrex Chemicals, the precise target had been selected. As before, it is clear that the planning was at a very preliminary stage. I am not satisfied beyond reasonable doubt that the offender intended that he himself would necessarily assemble the bomb or that he would be the bomb carrier when it came time to place it at or near the ultimate target. But I am satisfied beyond reasonable doubt that his role in the enterprise was an important one. This is evidenced by the fact that it was he who was making the enquiry to Deltrex Chemicals, albeit using a false name. Once again the offender gave an explanation as to why he used the name “Eagle Flyers”. Once again, he claimed that a mistake had simply been made in the postal address.

32 I do not accept these explanations as true. To the contrary, I find that they were patently false.

33 I am satisfied beyond reasonable doubt that the offender’s intentions in obtaining the list of chemicals was in contemplation for an action that he intended would be carried out to advance the cause of violent jihad. The information was sought with the intention on his part to influence by intimidation the Government of Australia and to intimidate the public.

34 The third and final offence relates to the offender’s possession of the Urdu document Exhibit “G”. This was found, as I have said, at his workstation on 26 October 2003. The offender, as I have already recounted, endeavoured to distance himself from this document before the jury. It is quite apparent however, that the jury did not accept his explanation. Consistently with the jury’s verdict, I do not accept his explanation and reject it. Indeed, the offender’s explanation in relation to the way in which this document came into existence and the reasons for his possession of it through until October 2003 were, as I have said, simply unbelievable.

35 I am satisfied beyond reasonable doubt that the offender’s possession of this document reflected very clearly his intention to make use of its contents for the purpose of using the information to assist in an enterprise to assemble an explosive which would be used as part and parcel of the ultimate carrying out of an act of terror within Australia. I am satisfied that his intention or state of mind at the time it was found in his possession, and indeed prior to that time and well after, was that the material could be used to advance the cause of violent jihad in Australia. Moreover, I am satisfied beyond reasonable doubt that it was the offender’s intention that any such enterprise would be carried out to coerce, or influence by intimidation, the Government of Australia and to intimidate the public.

36 I am not satisfied beyond reasonable doubt, however, that the offender had formulated any intention as at 26 October 2003 to poison any person or to cause the death of any person by the use of poison. Rather, I think the document Exhibit “G” reflected a range of options. Any one of these would have been available for the carrying out of an act of terror but, so far as the offender’s personal intentions were concerned, he favoured the use of an explosive or explosive device. I am satisfied beyond reasonable doubt that in relation to each of the three offences, the offender contemplated that the ultimate act of terror would, at least, cause serious damage to property. I cannot be satisfied beyond reasonable doubt that, at this very preliminary stage, a definite intention had been formulated to use an explosive to kill innocent people. I am satisfied, however, that the offender would have been aware, or at least would have contemplated, that, by using an explosive to damage property or infrastructure, there would have been a risk of serious physical harm to people who might be in the vicinity; and that even death might be occasioned to persons who happened to be close to the site of the explosion.

Objective seriousness of the offences

37 It is now necessary to evaluate the seriousness of the offences for which the offender has been convicted. In that regard, it is necessary to assess the level of criminal culpability involved in the offences both in relation to each particular offence and generally.

38 The Crown position may be stated briefly: It is that the Court should find that the criminal culpability involved in the commission of these three offences is at a very high level. The Crown maintains that, overall, the objective seriousness of the offences is close to, but not necessarily at, the worst-case level. The Crown has not sought the imposition of a life sentence in relation to count 2.

39 In this regard, the Crown has argued, first, that the jury verdicts require a finding by the sentencing court that what was involved here was a deliberate and pre-meditated course of conduct. I agree with this submission by the Crown. It is clear that the assembling of the 15 page Urdu document, that is the selection of the material that was to be copied, and the act of writing it out in the Urdu language, demonstrates beyond reasonable doubt a significant degree of pre-meditation and deliberation. In the same way, the efforts put into purchasing the electricity supply maps from the ESAA and the efforts involved in the enquiries to Deltrex Chemicals show the same kind of deliberation and reasonably carefully thought out pre-meditation. This is particularly so in the creation of false identities and particulars. Indeed, the same point may be made regarding the Urdu document. Clearly, one purpose in putting the contents of the document into that language was to make them difficult to identify, at least for a person other than one who spoke the Urdu language or who was able to read Urdu text.

40 Secondly, I accept the Crown position that the jury verdict must mean, in the light of the facts I have found, that at the time of the collection of the ESAA maps, and at the time of the enquiries made at Deltrex Chemicals, the offender had in mind an ultimate act which would involve the detonation of an explosive so as to cause at least very serious damage to property. There was no issue in the trial that the offender had obtained the electrical maps and that he had made enquiries of the chemical supply company. What was at issue, indeed, very much in issue, was his intention or state of mind at the time those events occurred.

41 It was clearly the jury’s conclusion that, at the relevant times, the offender intended to obtain the maps and the list of chemicals with a view to their use in a plot to cause the detonation of an explosive or explosives that would advance the cause of violent jihad and intimidate the government and the public. The explosion, however, was aimed essentially at property or infrastructure.

42 It was principally for this reason that the Crown, very fairly and properly, made its concession in relation to counts 1 and 2 that the objective seriousness of the offences, although very high, was not in the worst possible category.

43 The Crown, however, took a somewhat different view in relation to the circumstances revealed in relation to count 4. Here, the Crown argued that the contents of the Urdu document, Exhibit “G”, demonstrated that the offender intended or contemplated at least that he would be involved in a plot or proposal to administer poison to another person or persons. This involved, according to the Crown argument, an intention to kill or to cause at least serious physical harm to persons as opposed to serious damage to property.

44 I am not satisfied beyond reasonable doubt however, that the evidence establishes that the offender held, at any relevant time, an intention that he would be involved with an actual plot involving the use of poison aimed at causing the death of, or serious physical harm to, an individual or to individuals. There is really no evidence to suggest that this type of activity was contemplated beyond the fact that, in the various “recipes” in Exhibit “G”, there are several for making poisons. In the same way, although there is a formula for making an improvised hand grenade, there is no evidence in the case to suggest that the offender ever intended that there would be an enterprise involving the use of a hand grenade aimed at any individual, or for that matter, any building. Rather, I consider that, in this area, the submissions made by Mr Boulten SC on behalf of the offender are correct: there is, in the circumstances of all three offences, really one continuing uninterrupted course of conduct centring upon an enterprise to blow up a building or infrastructure.

45 The evidence establishes, for example, that the offender undoubtedly had in mind to damage some part of the electrical supply system. But there is no evidence from which one can conclude beyond reasonable doubt the precise nature of the ultimate target to be hit. The contents of the Urdu document considerably flesh out, colour and illuminate the offender’s intention in relation to the circumstances surrounding the obtaining of the ESAA maps and the enquiries he made of the chemical supply company. In the same way, those facts and circumstances, relating to counts 1 and 2, give illumination to his reasons for the possession of the Urdu document and flesh out the use he intended to make of it. I accept that Exhibit “G” was held by the accused in circumstances where he had an intention to make use of one or more of its recipes for purposes associated with his contemplated actions in relation to counts 1 and 2. But I am not satisfied beyond reasonable doubt that he, in fact, contemplated the use of a poison or poisons in any particular terrorist enterprise. An option to cause the death of someone by the use of poison no doubt was available to him. There is no evidence, however, from which I can infer that he had, even in the most preliminary of ways, selected such a course as an option to be in fact pursued.

46 The real dispute between the Crown and Mr Boulten SC related to the categorisation of the offences. As I have said, the Crown argued that the objective seriousness of the offences fell just below that of the worst category whereas Mr Boulten SC argued that the criminal culpability was at a low level.

47 Senior counsel for the defence provided a catalogue of reasons supporting his submissions. First, he argued that the accused held the requisite intentions for a very limited period of time. Either they were held for no longer than a period between 3 and 12 October 2003; or, alternatively, those intentions were held no longer than the period between 3 October and the date of seizure of the Urdu document. Mr Boulten based this submission on the fact that no criminal or terrorist related activity had been observed between 26 October 2003, and the date in late April 2004, when the offender was arrested.

48 I do not agree with this submission. I am satisfied beyond reasonable doubt that the offender maintained a general intention relating to terrorist activities at least up until the time of his arrest. It is clear that the offender knew, or at least suspected, that he was under surveillance following the seizure, as indeed he was. Both his office and his home had been thoroughly searched, indeed turned upside down by those authorised to do so under the relevant warrants. In addition, the offender was compulsorily detained and questioned in November 2003. It would have been an extraordinary situation had he been foolish enough to continue with any overt terrorist related activities after this confluence of events, all of which would have brought home to him most clearly that he was a person of considerable interest to the authorities.

49 On the other hand, there is not the slightest evidence to suggest that he had renounced his former intentions. They were, I am satisfied beyond reasonable doubt, intentions he held with great vigour and firmness. They were the consequence of a deeply fanatical, but sincerely held, religious and worldview based on his faith and his attitude to the extreme dictates of fundamentalist Islamic propositions. It is hardly likely that a handful of searches and a bout of questioning, unnerving though they doubtless were, would have led him to renounce the views, so deeply held by him.

50 The remaining matters relied upon by Mr Boulten SC essentially focused upon the very early stage of planning any proposal had reached by the end of October 2003. Senior counsel pointed to the absence of precision in the selection of any target or targets; the lack of viability or effectiveness of any proposed plan due to the preliminary nature of the enterprise; the fact that the offender himself was not necessarily to be the person who would carry out any attack, and that no decision had been made as to who else might be involved in any such attack. Indeed, Mr Boulten SC argued that, although count 2 carries with it a maximum sentence of life imprisonment, the criminality involved in the circumstances surrounding count 2 was no greater than that demonstrated in, for example, count 1 where the maximum penalty is 15 years.

51 Once again, although I have endeavoured to pay due respect to the forceful arguments of learned senior counsel, I am unable to agree with these propositions advanced on the offender’s behalf. It is true that the actions carried out by the offender may properly be regarded as at a very early stage of any terror related enterprise. The obtaining of the maps from ESAA, for example, would have done little by itself to advance a terrorist plot to bomb part of the electrical supply system. In relation to the enquiry of Deltrex Chemicals, it is also true that a good deal more work and preparation would have been necessary to advance the construction of a physically assembled bomb capable of causing destruction to part of the electrical supply system. But, on the other hand, the legislation under which these offences has been created was specifically set up to intercept and prevent a terrorist act at a very early or preparatory stage, long before it would be likely to culminate in the destruction of property and the death of innocent people. The very purpose of the legislation is to interrupt the preparatory stages leading to the engagement in a terrorist act so as to frustrate its ultimate commission. An evaluation of the criminal culpability involved in any particular offence requires an analysis not only of the act itself, which may be relatively innocuous, but as well an examination of the nature of the terrorist act contemplated, particularly in the light of the intentions or state of mind of the person found to have committed the offence.

52 When the offender’s conduct is examined in that way, although it is correct to make allowance for the matters stressed by Mr Boulten in his submission, the position becomes quite clear: the offender’s culpability in relation to the commission of these three offences, viewed as they should be, in my opinion, in their entirety, since they do involve inevitably one uninterrupted course of conduct, is at a very high level. Objectively examined, these are very serious offences indeed. This is especially so because of the fact that the offender himself held the relevant intention in relation to each offence to cause very serious damage to property, to advance violent jihad and to do so to coerce the Australian Government and to intimidate the public generally. As I have said a number of times, these were the central issues that were left to the jury and the jury’s verdicts must mean that the level of criminality is, as I have said, at a very high level. In a practical context, it is my finding that the actions of the accused, in relation to each of the offences, displayed an intention on his part that a violent terrorist act or acts would be carried out in Australia. This was intended, in effect, to be a general attack on the community as a whole. It carried the obvious consequence that, if carried out, it would instil terror into members of the public so that they could, never again, feel free from the threat of bombing attacks within Australia.

53 Australia is in general terms a very safe country. It is far removed, physically, from the rest of the world. It is far removed from the turmoil and gross disturbances that beset so many parts of the inhabited globe. It is a country in which Australians have been able in the past, with some exceptions no doubt, to congratulate themselves on their easy going and tolerant way of life. Although we have not escaped being drawn into world affairs and world conflicts, and although our citizens have not been free from attack in other countries, Australia has, to this time, not been a country where fundamentalist and extreme views have exposed our citizens to death and destruction within the sanctuary of our shores. One has only to think of the consequences on the national psyche of a tragedy such as the Port Arthur massacre to realise how a major terrorist bombing would or could impact on the security, the stability and well being of the citizens of this country.

54 I venture to suggest that these observations, general though they be, are not out of place in contemplating the seriousness of the offender’s actions and, in particular, his intentions in relation to the offences which have been committed here. Those intentions were of course, thwarted at a very early stage. The actions he took were, in themselves, ineffective enough. It may well be that there was a general lack of viability and sophistication about his actions. It may well be that there was a degree of impracticability as to whether he would be able to carry out his criminal intentions. On the other hand, even the most amateurish and ill-conceived plot to cause mayhem by the use of explosions would be capable of causing considerable damage and even death amongst our community.

55 For these reasons, I accept generally the submissions of the Crown that the offender’s criminal culpability in the present matter is to be regarded at a high level, although falling short of the worst category of case. I am unable to accept that the offender’s culpability is to be regarded at a low level, as Mr Boulten submitted.

Subjective circumstances

56 I turn now to assess the offender’s subjective circumstances. The offender has no prior convictions either in this country or in his country of birth, Pakistan. He comes from a well-established family. He was born at Sialkot in the Punjab region of Pakistan and is presently 36 years of age. His father is in his 70’s and his mother is 68 years old. They continue to live in Sialkot where is father is now retired. The offender’s father was previously employed with the Pakistan airport and later worked as a trained legal practitioner in Lahore.

57 The offender has three sisters and two brothers. His 39 year old brother lives and works in Sydney as a teacher. He has an uncle, an electrician who also lives in the Sydney region. The offender completed his secondary schooling in Pakistan before training as an architect at Lahore University over a period of five years. He finished that degree at about the age of 24 and, after a brief period of indenture with an architect firm, he then commenced his own general practice in Lahore, which continued until 1997. After a brief visit to Sydney he decided to immigrate here and this occurred in 1998.

58 Upon arrival in Australia, the offender set about obtaining qualifications to enable him to practice as an architect in this country. He applied for registration with the New South Wales board of architects. He enrolled at the University of Sydney where, over the next eighteen months, he completed a number of additional subjects. This enabled him to be awarded a Bachelor of Architecture Degree from the University of Sydney. He graduated in 2000. The offender also undertook further training at the Ultimo College of TAFE where he obtained certificates in Quality Management and Total Quality Management. At the time of his arrest, he was in the process of completing a Masters Degree in Construction Management at the University of New South Wales. In addition to working with Thomson Adsett Partners he was employed in 2004 by Bishop Hitchcock & Irvine an Architect’s firm at Alexandria. He was working there at the time of his arrest in April 2004.

59 It clear that the offender has, throughout his life, demonstrated and maintained a solid and prodigious work ethic.

60 The offender was married in 1999. This was an arranged marriage and, in this context, it was not until 2000 that his wife was able to join him in Australia. She is a qualified medical practitioner in Pakistan and has currently been undertaking additional studies in order to obtain registration as a doctor in New South Wales. There are no children from the marriage but the offender’s wife has remained loyal to him and supportive of him. His wife, brother and uncle have frequently visited him in prison.

61 The offender informed Mr Tim Watson-Munro, a Consultant Forensic Psychologist, that he is a devout Muslim. He told the psychologist that his renewed interest in his faith occurred at about the time of his marriage. Prior to that, he claimed that his interest in religion had been “fairly laisez-faire”. The offender also stated to the psychologist that after his marriage, he felt a strong need to have a greater structure and focus in his life and it has been in this context that he has become more dedicated to the spiritual aspects of his life. From that time onwards, he regularly attended his local mosque and he did the same during his major visits to Pakistan after 2000.

62 Mr Watson-Munro concluded that there was nothing in the offender’s prior history, nor emerging from his discussions with him, to indicate a violent disposition nor were there any features of an anti-social personality. The offender told Mr Watson-Munro that he came to Australia to better his life and that at no time had he felt any antipathy towards this country. There were no symptoms of depression and no indications of depressive illness at the time of psychological assessment. Mr Watson-Munro said the task in determining whether the offender might pose a risk upon his release was a difficult assessment to make in the light of Mr Lodhi’s continued claim to be innocent, notwithstanding the jury’s verdict. The psychologist, however, said that there was no previous involvement with the police or courts; rather there was a history of a hard working devout man who was well supported by those of his family who were in Australia. All of these matters, Mr Watson-Munro considered, were positive prognostic indicators.

63 Finally, the offender told the psychologist of the difficult system of incarceration he was enduring, having regard to his classification as an AA inmate. Notwithstanding these difficulties, the offender appeared to be coping quite well with the situation.

64 I should add, that in addition to the thorough information contained in Mr Watson-Munro’s report, a number of family friends of the offender gave evidence during his trial. They all attested to his non-violent personality, his devotion to his work and his satisfactory relationship with other people. In particular, a number of witnesses said that he was non-political and not a violent person in any respect. All of these matters, it must be said, stand in stark contrast to the circumstances of the offences committed by the offender and the intentions, which I have found he possessed at the time of the commission of the offences.

The Sentence to be imposed - principles of sentencing

65 What principles then should govern the imposition of sentence on the offender?

66 The purposes of sentencing in this matter include a number of well known considerations: overall, there is a need to protect the community from the consequences of serious crime of the kind involved here. This in turn requires the Court to pay particular heed to deterrence, both general and particular; to rehabilitation and to retribution and denunciation.

67 There is as well a need to have regard to a number of matters arising specifically under the Commonwealth Crimes Act 1914. There is no need for me to mention all the matters arising under the legislation but they include the presence of contrition or remorse; the character antecedents and cultural background of the offender; the need to impose a sentence that is of a severity appropriate in all the circumstances of the offences; and the need to ensure that the offender is adequately punished for the offences.

68 At the outset I should say that I am satisfied that, in relation to each of the offences, no sentence is appropriate in all the circumstances other than a sentence of imprisonment. This arises from the nature and circumstances of each offence, the level of criminal culpability involved and the will of the Commonwealth Parliament as expressed in the maximum penalties available.

69 Secondly, it is necessary for me to say that I consider that the offence committed under count 2 in the indictment is, a more serious offence than the offences in counts 1 and 3. This is so for a number of reasons. First, the offence in count 2 carries with it as I have earlier noted, a maximum sentence of life imprisonment. Parliament considers it a more serious offence than each of the offences the subject of counts 1 and 3. Secondly, it is a more serious offence because, the act of preparing for a terrorist act is the carrying out of a preliminary action that is, by its nature, closer to the commission of the ultimate terrorist act than the offences contemplated in ss 101.4 and 101.5 of the Criminal Code. Thirdly, the offender’s actions in making the enquiries of Deltrex Chemicals in the present matter were, in fact, actions that brought him that much closer to the carrying out of an act of terror than did the other preliminary actions for which he has been convicted. For these reasons, the level of criminal culpability in relation to count 2 is greater than the culpability in the offences involving the collection of the ESAA maps and possession of the Urdu document. Having regard to these circumstances and the maximum penalty involved, it is my view that the sentence in relation to count 2 must carry with it a significantly greater penalty than the offences in count 1 and 3.

70 I am not satisfied, however, that there is any necessity in all the circumstances to impose sentences that are other than entirely concurrent. This flows from the reasons I have given earlier in this decision relating to the fact that the offender’s conduct might properly be viewed and, in my view, should properly be viewed as one uninterrupted and continuing course of criminal conduct over a relatively brief period of time. The offender’s criminal intention, although directed to the commission of three separate offences, was in essence a manifestation of the one continuing and uninterrupted intention. In my view, the criminality involved in the second count is sufficient to encompass the criminality of the other offences. The principle of totality in the particular circumstances does not permit me to inflict any additional punishment for those two offences.

71 May I now pass to a consideration of the subjective features of the offender. First, there is the undoubted fact that he is, by all accounts, a person who has hitherto led a blameless life. He is a person who comes from a favourable and strongly supportive family background and who has no criminal background or antecedents whatsoever. These features of the offender’s life and circumstances are clearly matters that may be brought to account in his favour for the purposes of the sentencing process. But I have to say that these favourable circumstances make it difficult to understand why a young man of excellent personal background, with a considerable professional work ethic, would have contemplated and carried out the very serious criminal actions that have brought him to his present position in these proceedings.

72 The offender has, of course, maintained his innocence throughout the trial and continues to do so during this sentencing hearing. I can gain no meaningful insight into the circumstances, which have transformed him from an otherwise respectable member of the community to a dangerous terrorist whose views are coloured by notions of the most extreme and fundamental kind. It may be that the offender’s deep embrace of religion about the time of his marriage resulted in his embracing extremist views. This is perhaps no more than speculation on my part but, even if it were true, it does not explain why or how the dangerous intentions underlying the offender’s actions were ignited.

73 It has always been my understanding that Islam does not enjoin the killing of innocent people. Moreover, violent warfare is regarded by true Islam as a matter of last resort. It is subject to rigorous conditions laid down by the sacred law. The term “jihad” literally means “struggle”. The greatest form of “jihad” is the inner struggle of the soul, which is to be waged against selfish desires for the sake of the attainment of inner peace. Indeed, these concepts were the very concepts of jihad espoused by the offender during his trial. But it is clear from the jury’s verdict and the findings I have made that they are not the true reflection of this man’s inner thoughts and beliefs. The extremist views, which he must in truth be taken to have espoused, are not representative of the true nature of his Islamic religion. Rather they are a distortion of it.

74 As I say, these reflections, made in an endeavour to gain insight into the reasons, which may have led a young man of previous excellent character into the path of serious criminal misconduct, are perhaps speculation. The truth is I can gain little, if any, insight into the offender’s mind in this regard. The consequence is, however, that I can make no allowance in his favour for remorse and contrition. There plainly is none. The offender was perfectly entitled to maintain his innocence both during the trial and thereafter. This does not mean that his penalty is to be in any sense aggravated or increased. But it does mean that I can make no allowance on his behalf for contrition and remorse. Equally, it makes it difficult for the sentencing court to form any view as to whether the imposition of a significant penalty on the offender will result in his reform and rehabilitation.

75 The best I can do is to repeat the opinion expressed in Mr Watson-Munro’s report suggesting that the absence of any previous violent disposition, the absence of any features of an anti-social personality, and the strongly supportive background of the offender’s family are positive factors in his favour. These matters entitle the Court to express some cautious hope that, in time, the offender’s extreme views may dissipate and that rehabilitation may not be beyond him.

76 It is now necessary to consider a discrete matter that was raised by Mr Boulten SC on behalf of the offender. This related to the conditions of the offender’s imprisonment prior to trial and the likely conditions of imprisonment following the imposition of sentence. It will be recalled that the offender was received into custody on 22 April 2004. At that time, he was placed in segregated custody and he remained in that situation for just under two months. He was classified as A2U (maximum security unsentenced). He was also designated as an Extreme High Security inmate. This remained the situation until 17 February 2005 when, as a consequence of new regulations, he was assessed for a new classification AAU (National Security Threat Maximum Security unsentenced). It seems to be the position that once the offender has been sentenced he will have his security classification re-evaluated by the Risk Assessment Evaluation team. It is likely that his classification will be in the AA category and this will remain so for at least some considerable time. It was the evidence given by the correctional officer, Mr Andrew McClintock that this classification would not, in effect, be set in concrete. Mr McClintock conceded that it was possible there would be at least a marked delay in his progress from the AA category to a less onerous classification.

77 During the offender’s time in custody, he has been segregated from other prisoners with the exception of a relatively brief period when he was placed into protection limited association. This enabled him to mix with one other prisoner but the association was brought to an end through no fault of the offender.

78 An initial management regime has been settled for inmates who possess the AA classification. This regime has paid particular attention to security issues raised by the new classification. In other respects, it did not restrict statutory requirements.

79 In practical terms, the offender’s history of incarceration has meant that, except for the relatively brief limited association period, he has been kept in segregated custody. Mr McClintock explained that the term “solitary confinement” is not used any more. Rather, the favoured expression at the present time is that the inmate is described as “one out”. Whatever the terminology, the reality is that this is solitary confinement. There is a small exercise yard outside his cell where he may exercise for a brief period each day. In practical terms, this period of exercise outside the cell varies on a daily basis. The variation may, on any particular day, involve an exercise period between one and a half to three hours. The offender is required to wear an orange set of overalls whenever he is out of his cell and moved to another part of the complex. On those occasions, he is shackled. The reason for these procedures is presumably related to security.

80 The offender is constantly monitored and filmed by a video camera. If he has visits with his family, the visits are monitored in the sense that the conversations are within hearing distance of a Corrective Services officer and the visit itself is video taped. All telephone calls the offender makes are recorded other than those to his lawyers. All of his mail is read. He is not allowed access to a computer.

81 Details of the custodial management plan were in evidence before me as part of Exhibit “A”. It is not necessary for me to give all the details of this program. Included in it are some of the matters I have already mentioned. In addition, the offender is to have a cell change every two weeks. His cell is to be searched daily. He may not be employed within the prison system unless approval in writing is given by the Governor. He is not allowed to be employed in a sweeper/domestic position. The offender is not permitted to use the gymnasium nor is he allowed access to the prison oval. Barring exceptional situations, he is not allowed to leave his cell after 15.30 hours and he must be secured in the cell from that time. The offender is not entitled to and not permitted to speak to an Official Visitor.

82 Mr Boulten SC has submitted that the Court should make some allowance in the sentencing process for the harshness of the conditions sustained by the offender while he has been awaiting trial. Secondly, an allowance should be made for the future since it is highly likely he will be classified AA after sentence and that this classification will stay in force for at least a reasonably long period of time.

83 Because the offender has been in prison since 22 April 2004, it will be appropriate in formulating a sentence to backdate it to the date on which he went into custody. I am also of the view that some allowance should be made for the strict conditions in which he has been confined up to the time of trial. (R v Mallah per Wood CJ at CL [2005] NSWSC 317 at para [87]).

84 As to the offender’s future incarceration, there is no doubt that the conditions of imprisonment, while ever he remains classified as AA, are harsh. Should the Court make allowance for this in the sentencing process?

85 In a Daily Telegraph Editorial published 30 June 2006, the editor captioned his article “Shed no tears for this terrorist”. In the body of the article, which related to the present offender, the writer said (dealing with the evidence of harshness of incarceration): -

“We’re now supposed to feel sorry for him as he languishes, friendless and alone in his prison cell? What? This bloke is our enemy.”

And later: -

“Aligned with the world’s worst butchers and psychopaths, Lodhi deserves only to be locked up for a very long time, away from the fellowship even of other prisoners, out of sight and out of mind. And if his gaol term is a torment to him, few will shed any tears for that”.

86 This somewhat vengeful attitude is a sorry reflection of the recent inroads made into our normally tolerant and decent society. The Court reflects no doubt, or it should do so, the attitudes of society when it imposes sentence on a serious offender. Our society, a free and democratic one, allows for a variety of attitudes in such a situation. No doubt, the Telegraph editorial reflects one such attitude. But it seems to me that, no matter how much we may deplore and disapprove of a particular offender, no matter how repulsive we may find his or her actions, we sacrifice our essential decency if we fail to treat him or her as a fellow human being.

87 If the vengeful attitude to which I have referred is allowed to override our traditional values, the war against terror will be over and we will have lost. Rather, I consider the position is well stated by the writer, Richard Ackland in his published comment in the Sydney Morning Herald on July 7, 2006. In a different context from the present, he spoke of “the sheer folly of sacrificing our decency in the name of fighting terrorism”.

88 In my view, the Court is entitled to make some allowance in the sentencing process for the conditions of imprisonment, which will be imposed on the offender here. This is particularly so because of the fact that those conditions of imprisonment are imposed by virtue of a classification following on conviction. It emerges from the terms of a regulation rather than by way of a detailed subjective assessment of his situation or any detailed analysis of the crimes he has committed. In the present matter, however, I do not consider that the allowance should be in any sense a substantial one, or even one that can or should be mathematically calculated. It needs to be borne in mind that the offender is in fact coping very well with his prison situation and that this is no doubt, at least in part, occasioned by his religious convictions. Secondly, it is clear that his classification is not set in concrete and that the possibility of a less onerous re-classification is by no means out of the question. As the sentencing Judge, I would recommend to the prison authorities that they ought not lose sight of the need to consider the re-classification of the offender at a relatively early stage during his prison term.

89 I now turn to consider the general sentencing considerations that, in my view, are the most prominent in the present sentencing exercise. I have, of course, given consideration to the offender’s subjective circumstances to the extent I am able to do so. Those matters, however, are to be given less weight in the present matter than the important principles of general deterrence and denunciation.

90 The offences in respect of which the offender has been convicted are offences that were brought into existence following upon the original anti-terrorism enactments of 12 March 2002. Those earlier enactments themselves were a package of legislation prepared in response to the changed security environment in existence, following the terrible events of September 11, 2001. At that time, the Attorney-General observed, “September 11 is a stark example of the horror and devastation that can be caused by acts of terrorism. Terrorism has the potential to destroy lives, devastate communities and threaten the national and global economy. For these reasons this Government has affirmed its commitment to combating terrorism in all of its forms. We join with the international community in condemning the 11 September attacks and other terrorist activities”.

91 The need for substantial sentences to reflect the principles of general deterrence are obvious in relation to crimes of this kind. Such crimes are hard to detect; they are likely to be committed by members of our own community and often by persons of prior good character and favourable background. One has only to consider the tragedy of the London bombings in 2005 to recognise this observation as a sad truism. Moreover, terrorism is an increasing evil in our world and a country like Australia, with its very openness and trusting nature, is likely to fall easy prey to the horrors of terrorist activities.

92 In those circumstances, the obligation of the Court is to denounce terrorism and voice its stern disapproval of activities such as those contemplated by the offender here. It may be argued that the imposition of stern penalties, in the context of firm denunciatory statements, will not in fact deter those whose religious and political ideologies are extreme and fanatical. But a stand must be taken. The community is owed this protection even if the obstinacy and madness of extreme views may mean that the protection is a fragile or uncertain one. In my view, the Courts must speak firmly and with conviction in matters of this kind. This does not of course mean that general sentencing principles are undervalued or that matters favourable to an offender are to be overlooked. It does mean, however, that in offences of this kind, as I have said, the principles of denunciation and deterrence are to play a substantial role. There is also a need to recognise that the imposition of a substantial sentence may have a personal impact as a deterrent on this offender so that upon his release he will, it is cautiously hoped, be unlikely or less likely to re-offend. In addition to general deterrence, the need to deter this man from future offences is a potent factor in the sentencing process.

93 These are new offences and there is little assistance in decided cases in Australia, which can give the Court guidance as to the appropriate sentence to be imposed. Mr Boulten SC referred me to a decision of the Court of Criminal Appeal in Western Australia in Roach’s case [2005] WASCA 4. Jack Roach was charged with a conspiracy to commit an offence provided by the Crimes (Internationally Protected Persons) Act 1976 (Commonwealth), s 8(3C)(a). As particularised in the charge, this was the offence of intentionally destroying or damaging by means of an explosive, the premises of the Israeli Embassy in Canberra within intent to endanger the lives of internationally protected persons by that damage or destruction. The primary offence carried a liability to imprisonment to 25 years. This therefore was the maximum penalty available for the conspiracy charged.

94 The circumstances of the charge and trial were very unusual. Roach was engaged in the conspiracy between March and September 2000. His role in the conspiracy was essentially to carry out surveillance on the Embassy in Canberra and to send the material to Afghanistan for further planning. He was also asked to recruit members for an al-Qaeda cell in Australia. He did not have a role to play in the contemplated damage by means of explosive of the Embassy building. Roach embraced his role with enthusiasm at first. Shortly afterwards, however, he withdrew from the conspiracy and played no further part for over two years before he was taken into custody. It appears, so the trial Judge held, that Roach had lost enthusiasm for the conspiracy generally. Indeed, he attempted to make contact with ASIO and with other authorities but without success. Nothing further happened for about two years at which time he was arrested. Roach pleaded guilty at trial and the trial Judge found that there was no prospect that he would be involved in anything of this kind again. The trial Judge also expressed the view that Roach’s prospects of rehabilitation were good and that he was fully contrite for his involvement in the conspiracy. Moreover, he was given an allowance both for past co-operation and promised future co-operation. His guilty plea was recognised as well.

95 In the upshot, Roach was sentence to ten years imprisonment, reduced to nine years on account of promised future co-operation. A non-parole period of four and a half years was fixed. His sentence was backdated to the time of his arrest. The trial Judge made allowance for the plea of guilty and co-operation previously given to the AFP and ASIO. The trial Judge said he would have imposed a sentence two years greater had those circumstances not been present.

96 The Court of Criminal Appeal, by majority (Murray ACJ and Templeman J agreeing with McKechnie J in dissent) dismissed the Crown appeal, which had been brought alleging manifest inadequacy in the sentence imposed by the trial Judge. There was also an application for leave to appeal against sentence brought by Roach himself but leave was not granted.

97 Both the Acting Chief Justice and Templeman J mentioned in their separate decisions that an important factor in disposing of the appeal was the fact that it was a Crown appeal (see Murray ACJ at para 17; Templeman J at 63). McKechnie J in dissent would have allowed the Crown appeal and imposed a sentence of 16 years reduced by one year to take in account future co-operation. His Honour concluded that an appropriate period for parole would be one of nine years.

98 The facts I have outlined make it clear, in my view that Roach’s case is not of any great assistance in the present matter. The offence was a different one; the maximum penalty was 25 years and not life imprisonment as is the situation with count 2 here. In addition, the circumstances which led Roach to quit the conspiracy in which he was involved were highly unusual. Moreover, his assistance to the authorities, both past and future, stand in stark contrast to the situation of the present offender. Roach pleaded guilty whereas the offender here continues to maintain his innocence. Moreover, Roach’s involvement in the conspiracy was, according to the trial Judge and the majority in the Court of Criminal Appeal, quite limited as I have earlier indicated.

99 Mr Boulten SC also referred to a number of overseas “terrorist” cases. These included the Queen v Boutrab (2005) NICC 36; a Dutch case involving a defendant Lamrani who was charged with an offence of “recruiting for jihad and membership of a criminal organisation with terrorist intent” (February 2006); and R v Abu Mansha who was convicted of possessing information “likely to be useful to a person committing or preparing an act of terrorism” (reported in Guardian Unlimited 29 June 2006).

100 So far as the “tariffs” reflected in these various European decisions, I find that they are of little or no assistance (R v Brownlow (2004) NSWCCA 465). The nature of the offences themselves, and the penalties applicable are, in the main, very different from the legislation underlying the convictions against the present offender.


Pronouncement of Sentence

101 What sentence then should be imposed on the offender for these offences?

102 It is necessary to state once again that although the overall criminal culpability of the offender is very high indeed, the Crown has properly conceded that these offences do not fall within the worst case situation. It is also necessary to repeat that the Crown has not sought the imposition of a life sentence in respect of count 2. As I have said earlier, I agree with the assumptions and propositions underlying these fair and appropriate concessions made on behalf of the Crown.

103 Nevertheless, the sentence to be imposed, especially for count 2, must be a substantial one to reflect the important principles of deterrence and denunciation. In relation to count 2 the appropriate sentence, in my view, is one of imprisonment for a term of 20 years. The sentence is to commence on 22 April 2004 and to expire on 21 April 2024.

104 In relation counts 1 and 3 in the indictment, an appropriate sentence in each case, in my view, is one of imprisonment for a term of ten years. The sentence is to commence in each case on 22 April 2004 and is to expire on 21 April 2014. As will be apparent, these two sentences are to be served entirely concurrently with the sentence to be imposed in relation to count 2. The structure of the sentence is intended to reflect the totality of the criminality in all three offences.

105 Section 19AB of the Crimes Act 1914 (Commonwealth) requires of the Court in the present circumstances that it fix a single non-parole period. 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. The non-parole period however must incorporate all the relevant sentencing principles including denunciation and deterrence. Prior to the enactment of s 19AG of the Crimes Act 1914 (Commonwealth) – see Item 1B of Schedule 1 of the Anti-Terrorism Act 2004 – the normal range for a non-parole period was between 60-66 per cent of the total sentence (R v Bernier (1998) 102 A Crim R 44), although a higher non-parole period, up to 75 per cent in the most serious cases, might be justified. The new legislation specifically applies to the present offences. It makes it obligatory for the Court to fix the single non-parole period at a percentage of at least 3/4 of the sentence. Where two or more sentences have been imposed on a person, the relevant percentage must relate to the aggregate of those sentences.

106 As a consequence of these legislative changes, the single non-parole period in the present matter must be for a period of at least 15 years. The Crown has, very properly, submitted that, although the Court is at liberty to impose a non-parole period which is in fact more than 75 per cent of the aggregate of the sentences, it does not suggest that the Court should do so in the present matter.

107 I have given particular consideration to the recent written submissions made by both the Crown and Mr Boulten SC. These relate specifically to the application of s 19AG. I do not however accept the submission made on the offender’s behalf that, because of the operation of s 19 AG, it is in some way necessary to fix a lower head sentence than might otherwise have been appropriate.

108 As a consequence, in the present matters, it is my conclusion that a non-parole period of 15 years should apply. This is consistent with the legislation and with the submissions made on behalf of the Crown. Moreover, I consider that both the head sentence and the proposed non-parole period I have selected reflect adequately and appropriately the application of the general sentencing principles I have stated. Any lesser sentence would not, in my view, adequately address those important sentencing principles in the case of this offender and would, in relation to the proportion between the non-parole period and the head sentence, be inconsistent with the terms of the legislation.

109 The non-parole will commence on 22 April 2004 and it will expire on 21 April 2019.

Faheem Khalid Lodhi, in relation to the second charge in the indictment presented against you in this matter, I sentence you to a term of imprisonment of 20 years commencing on 22 April 2004 and expiring on 21 April 2024.

110 In relation to count 1 in the indictment, I sentence you to a term of imprisonment for ten years. This sentence is to commence on 22 April 2004 and will expire on 21 April 2014.

111 In relation to the third charge in the indictment, I sentence you to a term of imprisonment for ten years. This sentence should commence on 22 April 2004 and expire on 21 April 2014. The sentences in respect of counts 1 and 3 are to be served concurrently with the sentence in relation to count 2 and with each other.

112 In relation to the three sentences, I fix a single non-parole period in respect of those sentences for 15 years commencing on 22 April 2004 and expiring on 21 April 2019.


Explanation

113 I am obliged to explain to the offender the effect of the orders I have made.

114 Faheem Lodhi, the sentences I have imposed means that you will be obliged to spend a minimum period in custody of 15 years. You will be eligible for release on 21 April 2019.

115 It will be a matter for the Attorney-General as to whether you will be released on that day and that may depend upon your behaviour in prison. It will also be a matter for the Attorney-General to determine whether any conditions should apply to you while you are at conditional liberty upon parole after 21 April 2019. If you are released on that day, you will remain on parole for a further period of five years. If you were to breach your parole, you may be required to return to prison to serve the balance of the term of your sentence.



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LAST UPDATED: 24/08/2006