Supreme Court New South Wales Medium Neutral Citation: R v Dakkak [2020] NSWSC 1806 Hearing dates: 11 December 2020 Date of orders: 18 December 2020 Decision date: 18 December 2020 Jurisdiction: Common Law Before: Hamill J Decision: Sentenced to 18 months imprisonment with a non-parole period of 14 months. Catchwords: CRIMINAL LAW - sentencing - guilt by association - association with member of terrorist group - first offence charged under provision - objective seriousness - factors relevant to assessment - first offender - no previous convictions - statutory constraints on sentencing discretion - whether imprisonment only appropriate sentence - unavailability of alternatives - where offender served 18 months on remand in harsh conditions - offender entitled to imminent release Legislation Cited: Crimes Act 1914 (Cth), ss 3, 17A, 19AG Crimes (Sentencing Procedure) Act 1999 (NSW), s 67(1)(c) and Pt 4 Div 1A Criminal Code 1995 (Cth), ss 102.1, 102.3, 102.4, 102.8 Cases Cited: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 Alou v R (2019) 101 NSWLR 319; [2019] NSWCCA 231 Droudis v R [2020] NSWCCA 322 Georgopolous v R [2010] NSWCCA 246 Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 R v Laws [No 2] (2000) 116 A Crim R 70 R v Perez-Vargas (1986) 8 NSWLR 559 R v Rostom [1996] 2 VR 97; (1995) 83 A Crim R 58 R v Taleb (No 5) (Sentence) [2019] NSWSC 720 R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R R v ZMN (2002) 4 VR 537; [2002] VSCA 140 Saleh v The Queen [2016] HCATrans 175 Sivell v R [2009] NSWCCA 286 York v The Queen (2005) 225 CLR 466; [2005] HCA 60 Texts Cited: Explanatory Memorandum to the Anti-terrorism Bill (No 2) 2004 (Cth) Category: Sentence Parties: Regina (Commonwealth) Radwan Dakkak Representation: Counsel: R Ranken (Regina) T D Anderson (Dakkak) Solicitors: Commonwealth Director of Public Prosecutions (Regina) Legal Aid Commission (Dakkak) File Number(s): 2019/205247 Publication restriction: Nil Judgment 1. Radwan Dakkak is to be sentenced on his plea of guilty in relation to two offences against s 102.8(1) of the Criminal Code 1995 (Cth) ("the Code"). That offence sits within Part 5.3 of the Code, entitled "Terrorism". Section 102.8(1) is therefore a "terrorism offence" as that concept is defined in s 3 of the Crimes Act 1914 (Cth) ("Crimes Act"). Falling within that definition has several legal consequences and creates some constraints on the exercise of the sentencing discretion. For example, such offences cannot be dealt with by the imposition of an intensive corrections order. [1] Nor can an order be made under s 20(1)(b) of the Crimes Act which allows for the imposition of a sentence along with an order for conditional release either immediately or after a specified period. [2] Further, if a court imposes a sentence of imprisonment for a terrorism offence, the non-parole period must not be less than 75% of the total sentence. [3] Even so, a sentence of imprisonment cannot be imposed unless the Court is satisfied that no other sentence is appropriate. [4] The conditional release of an offender, without imposing sentence, under s 20(1)(a) of the Crimes Act is not prohibited. 2. Although an offence contrary to s 102.8(1) is a terrorism offence, it is one of the least serious terrorism offences created by the Code. The offence carries a maximum penalty of 3 years' imprisonment. Considered in the context of all offences known to the criminal law, this maximum penalty indicates that the offence is serious, but places it towards the lower end of all offences created under Commonwealth and state law. In sentencing for any terrorism offence, considerations of deterrence (both general and personal) and the protection of the community must be at the forefront of the sentencing Judge's mind. [5] Mitigating factors such as youth and rehabilitation generally receive less weight in sentencing for terrorism offences. 3. The offence created by s 102.8(1) is an unusual one in that, contrary to the traditions of the common law, the offence exposes citizens to potentially severe punishment as a result of what is sometimes referred to as "guilt by association". The offence criminalises association between an offender and persons who are members of a terrorist organisation, even where there have been no actions taken towards, or in preparation of, any terrorist act or foreign incursion activity. Counsel advised the Court that this is the first case prosecuted, or the first offender to be sentenced, under s 102.8(1) of the Code. 4. The purpose of criminalising such associations was explained in the Explanatory Memorandum to the Anti-terrorism Bill (No 2) 2004 (Cth) at p. 3: "The offence is therefore designed to address the fundamental unacceptability of the organisation itself by making meeting or communicating ("associating") with the organisation in a manner which assists the continued existence or the expansion of the organisation illegal. This is an acknowledgement that because membership of such organisations is illegal, playing a role in supporting the existence or expansion of an illegal organisation should also be a crime." 1. The elements of the offence, and the things that Mr Dakkak has admitted as a consequence of his plea of guilty, are as follows: 1. The offender intentionally associated with another person on two or more occasions. 2. The offender knew the other person was a member of or a person who promotes or directs the activities of an organisation. 3. The organisation was a terrorist organisation and the offender knew this. 4. The association between the offender and the other person provided support to the terrorist organisation. The fault element (for this physical element) is "intention" and, by pleading guilty, Mr Dakkak admits that he intended to support the organisation to expand or continue to exist by his association with those named in the charges. 1. The nature of the support required to be established by the fourth element can be, as demonstrated in the present case, a long way removed from any actual terrorist act or foreign incursion activity. 2. The facts of the first offence (sequence 2 on the Court Attendance Notice) concern Mr Dakkak's association with Isaac El Matari. The association was over a period of around 6 months between 1 January and 2 July 2019. Mr El Matari was a member of the Islamic State ("IS") – a terrorist organisation recognised as such by the Australian government. 3. An agreed statement of facts set out in a little detail the numerous occasions when Mr Dakkak associated with Mr El Matari. To Mr Dakkak's knowledge, Mr El Matari had been arrested in Lebanon for seeking to join IS in 2017 when he travelled there for that purpose. Mr El Matari returned to Australia in 2018 but intended to return to the Middle East to fight with IS. He discussed these plans with Mr Dakkak and the offender's responses were encouraging. On some occasions, Mr Dakkak provided advice to Mr El Matari such as "not to have a full beard [when travelling] but also not to shave it off completely" and discussed the safest routes into the areas where IS was operating in Syria and Iraq. Mr Dakkak also told Mr El Matari that he was "speaking to Dawla" (another term for IS) and other associates to facilitate Mr El Matari's travel plans and engagement with IS, and spread a story that Mr El Matari had recently married to give him an excuse to return to Australia. The prosecution case is that these conversations provided support to the organisation by encouraging Mr El Matari's plans to travel abroad and fight with IS. 4. In one of the conversations, the two men were discussing a terrorist attack in Sri Lanka in which children were killed and the offender expressed the view that the killing of children was justified in the circumstances based on what were obviously extreme political and religious beliefs. That conversation was an example of a body of evidence demonstrating that Mr Dakkak was radicalised to a significant degree. 5. The second offence (sequence 3) was referred to as a "rolled-up" charge because it involved association with two "persons", one of which was an entity involved in publishing IS propaganda. 6. Mr Dakkak was associated with Sheikh Hassan Hussein between 14 March 2019 and 2 July 2019. Sheikh Hussein was a member of IS. By his plea of guilty, Mr Dakkak acknowledges that he knew this. However, Mr Dakkak submitted that his contact with the Sheikh did not involve discussions of terrorism or similar activities. Rather, he sought contact with Sheikh Hussein to obtain religious instruction and understanding. On about four occasions the offender assisted Sheikh Hussein by translating religious writings to allow these writings to be published and disseminated in both Arabic and English. Mr Dakkak also shared Mr Hussein's writings and publications on social media. The Prosecutor fairly acknowledged that these translations did not involve terrorism or any call to violence or Jihad, but were concerned with Islamic doctrine. However, by assisting with publishing these writings, the offender enhanced Sheikh Hussein's capacity to influence a larger audience. By his plea, Mr Dakkak admits that this association assisted and supported IS (of which the Sheikh was a member). 7. The second charge also encompasses Mr Dakkak's association with an organisation known as Ahlut-Tawhid Publications from 19 March 2018 to 2 July 2019. [6] The organisation publishes online newspapers, magazines, translations of religious texts and other communications associated with IS. It appears largely to be a propaganda tool for those who espouse radical Islam and violent Jihadist views. Mr Dakkak supported the terrorist organisation by interpreting and translating pro-IS ideological material and sharing material he obtained from the publisher's online magazine known as "From Dabiq to Rome". The material was largely of a religious nature but also included summaries of the activities of IS, including publication of the number of deaths in various geographical areas occupied by the terrorist organisation. One of those areas (Khurasan) was the area where Mr El Matari intended to fight with IS. 8. Those are the bare facts of the offences. The agreed statement of facts sets out the circumstances of the offences in greater detail. I have considered the whole of the content of that document. 9. In addition to the evidence that supported the particular charges, there was evidence that established Mr Dakkak's beliefs and interests. This included material downloaded from his computer and other devices. The material betrayed an interest in extreme and dangerous political views. It is relevant because it demonstrates Mr Dakkak's motivation in providing such assistance as he did to those members of IS nominated in the charges against him. 10. Objection was taken to paragraphs 33, 37 and 38 of the agreed statement of facts. Initially it seemed the objection was concerned with the relevance of that material. However, in the course of argument it became clear that the true basis of the objection was that the material may have led the Court into error based on the principles explained by the High Court in the case of R v De Simoni. [7] In other words, it was submitted that the evidence disclosed a more serious offence or offences with which the offender is not charged. It is beyond question that an offender cannot be punished for an offence with which they are not charged. [8] The material describes the offender chanting or repeating a pledge of allegiance to IS and encouraging his girlfriend to take such a pledge: "[33] At 11:09am on 26 April 2019, the Offender was in his vehicle, listening to an audio recording which included the pledge of allegiance to Abu Bakr Al-Baghdadi by those responsible for the Sri Lankan attacks, and the Offender starting repeating a portion of it." "[37] At 9:04pm on 22 May 2019, the Offender spoke in his vehicle to Hozan ALOU. The Offender spoke about how his fiancé was 'pure Dawla' and that he had asked her to give the pledge of allegiance to Abu Bakr Al-Baghdadi in front of her mother and she had agreed. The Offender also said he had discussed religious concepts with his fiancé and wanted her to be aware of what was happening in the Middle East. Hozan ALOU warned the Offender that he knew of people who had been charged with an offence for a pledge of allegiance. The Offender said he thought it was not a serious offence, and added: 'Okay, but I just wanted to ensure, because I wouldn't marry anyone who doesn't have pledge of allegiance, you know what I mean?' Hozan ALOU asked the Offender to stop talking about a pledge of allegiance." "[38] At 2.11pm on the same day, the Offender was recorded talking alone in his vehicle during which he appeared to be rehearsing a speech or sermon, which included him repeating a pledge of allegiance to Abu Bakr al-Baghdadi, stating: 'I renew my allegiance to the Caliphate of Islam ABU BAKR IBRAHIM IBN AWAD AL-QURAISHI AL-BAGHDADI to hear and obey with acts of kindness as I can be capable, for immigration and Jihad in hardship and in ease, and to proclaim the right everywhere, not fearing in Allah the blames of blamers. I will not dispute the people of Religion unless I see clear infidelity with evidence according to Allah's conditions. Allah is my witness.'" (Footnotes omitted.) 1. I do not accept that this material, by itself, establishes that the offender was a member of a terrorist organisation [9] or recruiting for a terrorist organisation. [10] I do accept, however, that the evidence is relevant to an assessment of the criminality in this case. I have taken these paragraphs into account in considering the nature of Mr Dakkak's beliefs and his degree of radicalisation because that is relevant to his motivation in committing the offences under s 102.8(1). However, I have not done so in such a way as to treat him as though he committed more serious offences with which he is not charged. 2. In terms of an assessment of the seriousness of the offences, the prosecution submitted the offences fell "within the mid-range for the kind of conduct contemplated by s 102.8(1)". Mr Dakkak submitted that "this conduct would fall at the lower end of objective seriousness for the offence". 3. It is unnecessary, and sometimes undesirable, to place an assessment of the conduct on some kind of putative scale of "objective seriousness". [11] However, it was not unhelpful for experienced counsel to assist the Court by casting their submissions in those terms. In deference to their submissions, I record that I consider this case to fall below the putative mid-range of objective seriousness but to be substantially more serious than cases that would fall at the bottom of the range. 4. These are serious offences. Mr Dakkak's associations with members of the terrorist group were not fleeting. Between them, they spanned many months from March 2018 through to July 2019. Further, there is clear evidence of Mr Dakkak's radicalisation and this was a substantial part of his motivation to associate with people he knew to be members of a terrorist organisation. Further, the particular terrorist organisation is notorious for engaging in barbaric and egregious abuses of human rights and Mr Dakkak expressed opinions that some of these tactics (like killing children) were justified. 5. On the other hand, I accept Mr Anderson's submission that each of the people with whom the offender associated was a "member" of IS rather than someone who was directing the activities of that organisation. There was a concession that some of Sheikh Hussein's activities also promoted IS and the same could be said of Ahlut-Tawhid Publications. However, there was no evidence that any of the offender's associates directed the activities of IS and their connection to the organisation was somewhat obscure. These facts, as Mr Anderson submitted, place the offences at a lower level of culpability. I also accept the submission that the nature of the support provided by Mr Dakkak's "associations" was far from the most serious kind. In respect of Mr El Matari, the assistance involved providing some advice and encouragement as to the proposed trip to fight with IS in the Levant. In the case of the second charge, it involved publishing material, thereby promoting the organisation, albeit that the material did not involve any call to Jihad, terrorism or other violent activity. The offences are serious but far from the most serious that might be caught by the section. Because it is the first case prosecuted under the section, it is difficult to draw any comparisons other than in a theoretical or academic sense. 6. Mr Dakkak pleaded guilty in the Local Court to the two offences and the parties agree that he is entitled to a 25% reduction in his sentence as a result of the utilitarian value of his plea of guilty. 7. In some cases, a plea of guilty may also be indicative of contrition and remorse. However, in the present case, I am unable to accept that the offender has established that he is truly remorseful or contrite. He gave no evidence to support that assertion and there was no compelling evidence of contrition in the character references tendered on his behalf or in the material attached to his solicitor's affidavits. 8. It is difficult to assess Mr Dakkak's prospects of rehabilitation. It is clear from various letters he has written while in gaol that he remains committed to a strict form of Islam. However, that is no crime and does not of itself suggest that he will involve himself in criminal activities in the future. [12] He has no previous criminal record and his character references are very positive. He has a supportive fiancé although there is some evidence that Mr Dakkak prevailed upon her to swear allegiance to IS. She is a qualified primary school teacher and has attained tertiary qualifications. She remains supportive although she has not been able to visit Mr Dakkak in gaol "due to being rejected to visit him for no given reason". A neighbour, Ms Rosemary Smith, speaks highly of Mr Dakkak's kindness and family values. Ms Smith attended Court for the sentencing hearing and there was a nice interaction between her and Mr Dakkak when her name was mentioned in the course of submissions. It is clear that Mr Dakkak has strong support in the community and this is a positive sign for his rehabilitation. On the other hand, there is no evidence that he has been "de-radicalised". Given his youth, prior good character and family support, I find that Mr Dakkak has some prospects of rehabilitation. However, in the absence of evidence of contrition and "de-radicalisation" this matter cannot be given much weight. In Alou v R, Bathurst CJ said: "There is a clear body of authority at the appellate level both in this State and Victoria that in sentencing for terrorist offences, the significance of punishment, deterrence and protection of the community means that mitigating factors such as youth and prospects of rehabilitation are given less weight." [13] 1. A case note made on 16 August 2019 by the prison authorities set out Mr Dakkak's personal and family background. He was then aged 23 and had not been in gaol before. Mr Dakkak was raised by his mother and father and had twin brothers a little younger than him, an older sister, and another brother aged 8. His father was emotionally abusive and verbally aggressive. He had a supportive and caring relationship with his mother. One of his twin brothers has a serious mental illness and his younger brother is physically disabled. His social time was spent reading the Quran and he is a good cricketer. He went to public schools and completed the Higher School Certificate (HSC). He was quite talented academically and his favourite subject was mathematics. He scored well in the HSC. He finished school at 17 years of age and went to university to study engineering. He has had some employment delivering pamphlets, packing in a warehouse and some work in IT. He has no history of psychiatric illness and, at the time of the case note, was coping well with being in custody. 2. The letters of his mother and Ms Smith showed that he is committed to his family and helps a great deal with his disabled siblings. He shows great empathy and compassion to his siblings and is gentle, loving and caring towards them. His mother misses him a lot. The parties agree these are relevant factors as part of the "subjective mix" when it comes to sentencing, but that the evidence does not establish "exceptional" hardship to the family. [14] 3. There is no evidence before the Court that the offender has changed his radical views. I was told that he has not been eligible to participate in the prison's de-radicalisation programmes because he was not a sentenced prisoner. A number of letters that he wrote from gaol were tendered. While these established some ongoing contact with a few people who hold extremist views, including Mr El Matari, there is nothing in the correspondence that espouses any philosophy of violent Jihad or other inclinations towards terrorism. [15] A lot of the letters were to his fiancé. 4. Mr Dakkak is still a young man. He has no previous offences of any kind. For the most part, his conduct in gaol has been exemplary. On the other hand, the extreme nature of his views is a matter that must be taken into account in considering the protection of the community. 5. Mr Dakkak was arrested on 2 July 2019 and has been in custody for almost 18 months. During that time, he has been incarcerated at the High Risk Management Correctional Centre ("HRMCC") at Goulburn. That gaol is largely, although not exclusively, used to house offenders charged with terrorism offences. Part of a report prepared by the Inspector of Custodial Services New South Wales was tendered on the hearing. It demonstrates the onerous nature of the custodial conditions and raises questions as to whether being imprisoned at the facility in question may have an adverse impact in terms of de-radicalisation. The inspection team found: "[T]here was no clear policy to guide prison staff on placement to prevent the risk of radicalisation to violence, or to prevent vulnerable inmates being subjected to violent behaviours of other inmates." [16] 1. For example, one officer was reported as saying "If you were to measure extremist views, they wouldn't diminish in here". [17] 2. To exemplify this, in one of his letters to another inmate of the HRMCC, Mr Dakkak wrote: "My intention isn't to turn anyone against these brothers, in fact like you mentioned Supermax is a blessing from Allah and that comes from many aspects, like just hearing the 'Call to prayer' from these guys is beautiful, and many have love for Islam and strengthen your faith." 1. The wisdom of placing a young offender with no previous record on remand in an institution such as this is questionable but it is not something over which the Court has any control. 2. There was more particular evidence of the conditions to which Mr Dakkak has been subjected while on remand. They are very onerous. The evidence shows that he is kept in isolation for many hours per day and that on at least 61 occasions (and possibly up to 75 days) he has been in solitary confinement for the whole day. This was due to the institution being "locked down" and not through any fault of Mr Dakkak. That, on its face, appears to be contrary to the mores of a civilised society but, putting aside such emotive language, it is relevant to an assessment of an appropriate sentence. As Hayne J said in York v The Queen: "The effect of serving a term of imprisonment, and the conditions under which an offender would serve that sentence, are relevant matters that may be taken into account by a sentencing judge — at least when that effect and those conditions are shown to be different from, and more onerous than, the effect on and conditions undergone by other prisoners." [18] See also the cases referred to by Hayne J in that passage. [19] 1. In AB v The Queen, Kirby J said "that every year in protective custody is equivalent to a significantly longer loss of liberty under the ordinary conditions of prison". [20] 2. I am conscious of s 16A of the Crimes Act and the list of matters that a sentencing court "must take into account" in sentencing for a federal offence. I have done so but I do not propose to convert my judgment on sentence into some kind of check list in a misguided attempt to make it appeal-proof. [21] Similarly, I have applied the various provisions in the Crimes Act concerning accumulation, concurrency, commencement dates and non-parole periods. Again, I do not propose to set out all of those provisions in this judgment. 3. I repeat that in sentencing for terrorism offences, the Court must give significant weight to the protection of the community, personal and general deterrence and retribution. [22] 4. Mr Dakkak has already spent almost 18 months in gaol in very onerous conditions. Taking all relevant considerations into account, I am satisfied that this is sufficient punishment. I considered taking the same approach to this matter as I did in R v Taleb and making an order releasing the offender conditionally under s 20(1)(a) of the Crimes Act. [23] There would be advantages to that course in that the offender would be subject to supervision for an extended period. As I hinted in R v Taleb at [111] and following, the constraints in the legislation concerned with terrorism offences have some unintended consequences. However, the requirement that a message be sent to those who would associate with terrorism, convinces me that this approach would be inappropriate in the circumstances. Section 19AG of the Crimes Act does not detract in any way from the obligation of a sentencing judge to first impose a proportionate sentence before considering the non-parole period. [24] 5. Ultimately, I accept the submission of the Prosecutor and the concession made by counsel for Mr Dakkak and conclude that no sentence apart from full-time imprisonment is appropriate in all of the circumstances of the case. [25] I consider sequence 3 to be the more serious offence because there were two separate "associations" and the publication of material that had a greater capacity to assist the terrorist organisation. By contrast, Mr Dakkak's assistance to Mr El Matari was largely responsive to the latter's pre-existing aspirations. 6. For sequence 2, I would begin with a sentence of 12 months imprisonment. That sentence will be reduced to nine months by virtue of the 25% reduction for the utilitarian value of the offender's plea of guilty. That sentence commenced on 2 July 2019 and expired on 1 April 2020. 7. The offences were separate and distinct and there must a degree of accumulation. However, the offences were of a similar kind and there was a period of about six months during which the offending overlapped. The same terrorist organisation was involved in each of the associations. For those reasons the sentences will be largely concurrent. There will be three months' accumulation of the sentences so that the sentence for sequence 3 will commence on 2 October 2019. 8. For sequence 3, I would begin with a sentence of 20 months. That sentence will be reduced to 15 months upon application of the discount for the utilitarian value of the plea of guilty. The sentence will commence on 2 October 2019 and expire on 1 January 2021. 9. That is a total sentence of 18 months. There will be a single non-parole period of 14 months. This is slightly higher than 75% of the total sentence to ensure compliance with s 19AG of the Crimes Act. The non-parole period will be ordered to have commenced on 2 July 2019. It expired on 1 September 2020. 10. Subject to the Commonwealth Attorney-General granting parole in the meantime, Mr Dakkak is to be released on 1 January 2021. 11. Mr Dakkak, I will now formally impose sentence: 1. On your pleas of guilty, you are convicted. 2. On Sequence 2, you are sentenced to a term of imprisonment of 9 months commencing on 2 July 2019 and expiring on 1 April 2020. 3. On Sequence 3, you are sentenced to a term of imprisonment of 15 months commencing on 2 October 2019 and expiring on 1 January 2021. 4. You are sentenced to a single non-parole period of 14 months commencing 2 July 2019 and expiring on 1 September 2020. 5. You are to be released on 1 January 2021 unless you are granted parole in the meantime. 1. Mr Dakkak, I am required to explain the sentence to you. There are two individual sentences of 9 months and 15 months. The mostly run together but there is three months' accumulation. That means the total sentence is 18 months. I set a non-parole period that has already expired so technically you are eligible for release on parole. That will be up to the Attorney-General in Canberra. The full 18-month sentence of imprisonment expires on 1 January 2021 and you will be released on that day. I will allow Mr Anderson and Ms Steell to explain this to you after I leave the bench. ********** Endnotes 1. Crimes (Sentencing Procedure) Act 1999 (NSW), s 67(1)(c). 2. Crimes Act 1914 (Cth), s 20(6). 3. Crimes Act 1914 (Cth), s 19AG. 4. Crimes Act 1914 (Cth), s 17A. 5. Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 at [83]-[109] per Spigelman CJ and [274] per Price J. 6. Transcript 11 December 2020, p 19. 7. (1981) 147 CLR 383; [1981] HCA 31. 8. See, for example, LN v R [2020] NSWCCA 131 at [39]-[40], [113]-[125]. 9. An offence under s 102.3 of the Code carrying a maximum penalty of 10 years. As to the definition of "member of an organisation", see s 102.1 of the Code. 10. An offence under s 102.4 of the Code carrying a maximum penalty of 25 years. 11. Sivell v R [2009] NSWCCA 286 at [32], Georgopolous v R [2010] NSWCCA 246 at [3] and [30]; cf the position where there is a standard non-parole period under Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act. 12. Cf Droudis v R [2020] NSWCCA 322 at [72]. 13. Alou v R (2019) 101 NSWLR 319; [2019] NSWCCA 231 at [131] – [136] per Bathurst CJ; and see, for example, Elomar at [703] per Bathurst CJ, Hoeben CJ at CL, Simpson J; Lodhi at [132] per Barr J and [274] per Price J. 14. See the majority view expressed in R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R at [94]–[93] (Hoeben CJ at CL with Latham J agreeing) while noting "the force" in the dissenting view of Beech-Jones J at [104] – [153]: see the comments of Keane J in the special leave application in Saleh v The Queen [2016] HCATrans 175. 15. Counsel helpfully agreed this was the position and did not think it necessary that I read all of the correspondence. I have scanned it and noted the recipients of the letters. 16. Ex 1, Annexure A (Extract of Report on the Management of Radicalised Inmates in NSW) p 62. 17. Ibid, p 63. 18. York v The Queen (2000) 225 CLR 466; [2005] HCA 60 at [38]. 19. R v Perez-Vargas (1986) 8 NSWLR 559 at 565 per Street CJ; R v Rostom [1996] 2 VR 97 at 100, 102 per Charles JA; R v Laws [No 2] (2000) 116 A Crim R 70 at 78 per Wood CJ at CL; R v ZMN (2002) 4 VR 537; [2002] VSCA 140. 20. AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [105]. 21. See, for example, Ghamraoui v R [2009] NSWCCA 111 at [23]. 22. See Lodhi at [109] per Spigelman CJ, [274] per Price J, while noting that Lodhi involved a far more serious offence of preparing to commit a terrorist act. 23. R v Taleb (No 5) (Sentence) [2019] NSWSC 720 at [114]-[119]. 24. Lodhi at [261] per Price J. 25. Crimes Act 1914 (Cth), s 17A. Amendments 18 December 2020 - Amendment to initials of Counsel. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2020