Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Azari v R; Al-Talebi v R [2021] NSWCCA 199 Hearing dates: 2 August 2021 Decision date: 25 August 2021 Before: Bathurst CJ at [1]; Adamson J at [2]; Bellew J at [82] Decision: Proceedings 2014/274649 and 2014/368436 (1) Grant leave to appeal against sentence. (2) Dismiss the appeal. Proceedings 2014/367702 (1) Grant leave to appeal against sentence. (2) Dismiss the appeal. Catchwords: CRIMINAL LAW – Offences providing assistance to terrorist organisation – doing acts in preparation for or planning a terrorist attack – charges against co-offenders formulated differently – Sentence – alleged disparity – alleged manifest excess – issue regarding treatment of offence on Schedule pursuant to s 16BA of Crimes Act 1914 (Cth) – whether error in statement regarding effect on sentence of admitted offences Legislation Cited: Crimes (Foreign Incursion and Recruitment) Act 1978 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1914 (Cth), ss 3, 16A, 16BA, 19AG Criminal Code Act 1995 (Cth), ss 11.1, 11.2A, 101.6, 102.6, 102.7 Evidence Act 1995 (NSW), s 184 Cases Cited: Abbas v R; Bodiotis v R; Taleb v R and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1991 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 DS v R [2014] NSWCCA 267 Dunn v R [2018] NSWCCA 108 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Martellotta v R [2021] NSWCCA 168 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61 R v Azari (No 12) [2019] NSWSC 314 R v Knight [2005] NSWCCA 253; (2005) 155 A Crim R 252 R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 Sparos v R [2013] NSWCCA 223; (2013) 235 A Crim R 462 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 Category: Principal judgment Parties: Proceedings 2014/274649; 2014/368436 Omarjan Azari (Applicant) Regina (Respondent) Proceedings 2014/367702 Ali Al-Talebi (Applicant) Regina (Respondent) Representation: Proceedings 2014/274649; 2014/368436 Counsel: S Odgers SC (Applicant) L Crowley QC / P McEniery (Respondent) Solicitors: Ryan Payten Le (Applicant) Director of Public Prosecutions (Cth) (Respondent) Proceedings 2014/367702 Counsel: R Pontello SC / M Phelps (Applicant) L Crowley QC / P McEniery (Respondent) Solicitors: O'Brien Criminal and Civil Solicitors (Applicant) Director of Public Prosecutions (Cth) (Respondent) File Number(s): 2014/274649; 2014/368436; 2014/367702 Decision under appeal Court or tribunal: Supreme Court; District Court Citation: R v Azari (No 12) [2019] NSWSC 314 Date of Decision: 29 March 2019 Before: N Adams J; Sutherland SC DCJ File Number(s): 2014/274649; 2014/368436; 2014/367702 Judgment 1. BATHURST CJ: I agree with Adamson J. 2. ADAMSON J: The applications of Omarjan Azari and Ali Al-Talebi (the applicants) for leave to appeal against their sentences were heard sequentially. The sentences in respect of Mr Al-Talebi were imposed in the District Court by Sutherland SC DCJ on 28 August 2017. The sentences in respect of Mr Azari were imposed by N Adams J in the Supreme Court on 29 March 2019. 3. Mr Al-Talebi relied on two grounds: alleged disparity with the sentence of Mr Azari, and manifest excess. Mr Azari raised three grounds: error in taking into account offences on a schedule under s 16BA of the Crimes Act 1914 (Cth), manifest excess, and disparity with the sentence imposed on Mr Al-Talebi. 4. Because each applicant appeals on the ground of parity, it is convenient for my reasons to be expressed in a single judgment, although the applications for leave to appeal and appeals are distinct, and the applicants were sentenced by different judges. It was common ground that they were co-offenders. 5. All references to legislation in these reasons are references to the Crimes Act, unless otherwise indicated. All references to amounts of money are to Australian currency except where otherwise stated. Mr Al-Talebi 1. Mr Al-Talebi seeks leave to appeal against the sentence imposed on him by Sutherland SC DCJ on 28 August 2017 for three offences for which he was convicted after trial, as follows: Count Period of offending Section of the Criminal Code Act 1995 (Cth) (the Code)/Offence Max penalty Sentence 1 Between about 18 July 2014 and 18 September 2014 Sections 102.7(1), 11.1(1) and 11.2A(1)/ jointly attempt with Mr Azari to provide support or resources ($3,000) to a terrorist organisation (Islamic State) 25 years' imprisonment 10 years' imprisonment commencing 15 December 2014 2 Ditto Ditto Ditto Ditto 3 Ditto Sections 102.6(1), 11.1(1) and 11.2A(1)/ jointly attempt with Mr Azari to make funds available (USD $9,000) to a terrorist organisation (Islamic State) Ditto 10 years' imprisonment commencing 15 December 2016 1. As can be seen from the table, for each of counts 1 and 2, his Honour sentenced Mr Al-Talebi to a term of imprisonment for 10 years, commencing on 15 December 2014, to be served concurrently. For count 3, a sentence of imprisonment for 10 years was also imposed, but it was to commence on 15 December 2016. The overall total term was 12 years' imprisonment, commencing on 15 December 2014 and expiring on 14 December 2026. Pursuant to s 19AG, his Honour specified a single non-parole period of 9 years' imprisonment, commencing on 15 December 2014 and expiring on 14 December 2023. The ratio of 75% between the non-parole period and the total term conformed to the minimum requirement for terrorism offences, as provided for by ss 3(1) and 19AG(2). Judge Sutherland's sentencing judgment The facts as found by Sutherland SC DCJ in respect of Mr Al-Talebi 1. The offending conduct comprised Mr Al-Talebi's involvement in the period from about 18 July 2014 to 18 September 2014 in a joint attempt to transfer cash funds. The funds were collected by a group of men who shared his radical religious and political views and supported Islamic State. This group of men formed the Shura, of which Mr Al-Talebi and Mr Azari were members. 2. Mr Al-Talebi had an association with Mohammad Ali Baryalei who left Australia in 2013 and became a senior member of Islamic State, which was declared a terrorist organisation on 11 July 2014. 3. The Shura had a common intention to send funds of $6,000 to Pakistan to sponsor the travel of fighters for Islamic State from Pakistan to Syria. The Shura also intended to send $10,000 to Turkey for Mr Baryalei. On 18 July 2014, Mr Azari and another man attended a money exchange in Auburn to change Australian currency for about USD $9,000. Mr Azari spoke to Shabbir Ahmad in Pakistan as well as to Mr Baryalei to discuss the means by which these funds could be delivered. Mr Al-Talebi and Mr Azari also spoke about the funds. Mr Azari asked Mr Al-Talebi to bring "five spoon or six spoon", which was a code for the funds. Mr Al-Talebi also asked Mr Azari whether he had found someone who could transfer the money. 4. On 6 August 2014, Mr Al-Talebi, Mr Azari, an intermediary (the Intermediary) and others met in the underground carpark of the Parramatta Mosque. Mr Al-Talebi collected a pink bag from his car, which contained USD $9,000 and an envelope which contained $6,000. He handed these to Mr Azari who handed them to the Intermediary. Mr Al-Talebi also handed to the Intermediary a booklet entitled "How Should We Be Pleased in Staying Behind". 5. After this meeting, Mr Azari, the Intermediary and another man went to a money transfer facility in Parramatta. The Intermediary tried to send the entire $6,000 to Mr Ahmad in a single transaction but was unable to do so. Thus, the Intermediary was only able to transfer $3,000 on that day. This transfer was the subject of count 1 on the indictment. 6. On the following day, 7 August 2014, Mr Al-Talebi, Mr Azari and others met with the Intermediary again with a view to sending the remaining $3,000 to Mr Ahmad. Mr Azari and the Intermediary went to a different money exchange at which the Intermediary was able to transfer $3,000 to Mr Ahmad. This transfer was the subject of count 2 on the indictment. 7. Count 3 concerned the USD $9,000 which was passed to the Intermediary on 6 August 2014. Because of the Intermediary's concerns about the transfer fees associated with the transfer of this sum to Mr Baryalei's nominee in Turkey, the Intermediary did not transfer the cash, which was later found by his mother and confiscated. 8. His Honour found that Mr Al-Talebi was well aware of the illegality of his actions and took steps to avoid detection, including by using pay phones. Other matters relevant to sentencing Mr Al-Talebi 1. Mr Al-Talebi did not give evidence at trial or on sentence. His Honour found that denunciation and general deterrence were significant factors in sentencing for terrorism offences. His Honour also found that specific deterrence was also required because of Mr Al-Talebi's strongly held Islamic beliefs that had the potential, if acted on, to endanger public safety and national security. His Honour found that the three counts could not be viewed as falling at the lowest end of criminality. 2. His Honour recorded that Mr Al-Talebi was born in Iraq and was 27 at the time of sentence (he was therefore about 24 at the time of the offending). He arrived in Australia at the age of about 10 or 11 as a refugee with his maternal aunt and sisters (his mother having died when he was about 5 years old). Having settled in Melbourne for some years, the family moved to Sydney, where Mr Al-Talebi completed his Higher School Certificate at Epping Boys High School. The principal described him as honest, reliable, responsible, diligent and trustworthy. Mr Al-Talebi completed a sports science degree at the University of Western Sydney. He was a devout Muslim. 3. His Honour found that there was no evidence of remorse or contrition; that his prospects of rehabilitation were poor; and that he was of prior good character. Mr Al-Talebi's ground 2: alleged manifest excess 1. As referred to above, Mr Al-Talebi sought leave to appeal on two grounds: first, alleged disparity with the sentence imposed on Mr Azari; and second, alleged manifest excess. I propose to address the manifest excess ground first because a parity ground can only be entertained on the basis that the sentence imposed is otherwise correct. 2. A ground of manifest excess, like manifest inadequacy, does not depend on the establishment of patent error, since it is, in effect, a conclusion which may be infected by latent error which is obvious only on examination of the sentence imposed: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [7] (Gleeson CJ and Hayne J). 3. It was submitted on behalf of Mr Al-Talebi that he did not play a major role in the transfer of the funds; that there was no evidence that he had directly communicated with Mr Baryalei; that he had not recruited the Intermediary; that the amount of money was relatively small; and that his involvement was for a limited period from 6-8 August 2014. Further, in support of this ground, reliance was placed on other sentences imposed for terrorist offences, or similar offences. 4. Mr Al-Talebi's involvement, as is evident from the offences for which he was convicted, was as a party to a joint attempt to transfer the funds. Thus, it is not determinative that his role was limited to particular acts as set out above, since there was a common purpose to effect the transfers, in respect of which he played an important part. While the amounts of money may be regarded as relatively small, the purpose of the transfers was to facilitate the travel of persons to Syria to fight for Islamic State and to assist Mr Baryalei as a senior member of Islamic State. Further, while Mr Al-Talebi was only 24 years old at the time of the offending, this was a matter taken into account by the sentencing judge. His relative youth is not necessarily entitled to particular weight in this context. 5. I accept the Crown's submissions that the sentences imposed in respect of offences contrary to the Crimes (Foreign Incursion and Recruitment) Act 1978 (Cth), which were relied on by Mr Al-Talebi as comparable, are not of particular assistance, not least because the offences for which Mr Al-Talebi was to be sentenced had a maximum penalty of 25 years' imprisonment, which was significantly greater than the maximum penalties for the alleged comparables under the Crimes (Foreign Incursion and Recruitment) Act, for which the maximum penalty was, in the main, 10 years' imprisonment. 6. The way in which Judge Sutherland structured the sentences for the three counts emphasised the seriousness of the offending (since a sentence of 10 years' imprisonment was imposed for each). However, the total term of 12 years' imprisonment and a non-parole period of 9 years, indicated the extent to which concurrency operated. I am not persuaded that it was not open to Judge Sutherland to impose the sentences which were imposed or that the individual sentences or effective sentence were manifestly excessive. For these reasons, I am not persuaded that Mr Al-Talebi's ground 2 has been made out. 7. It is convenient to address the parity ground in respect of each applicant, after addressing Mr Azari's other grounds of appeal. Mr Azari 1. Mr Azari seeks leave to appeal against the aggregate sentence imposed on him by N Adams J for two offences: 1. attempt to make funds available to a terrorist organisation (Islamic State), knowing that the organisation was a terrorist organisation contrary to ss 11.1(1) and 102.6(1) of the Code (the funding offence); and 2. doing an act in preparation for, or planning, a terrorist act, contrary to s 101.6(1) of the Code (the planning offence). 1. On 16 December 2015, Mr Azari pleaded guilty to the funding offence. On 2 November 2018, he was convicted after trial by jury of the planning offence. 2. N Adams J was asked to take into account two further offences contrary to s 102.6(1) of the Code, pursuant to s 16BA of the Crimes Act (the s 16BA offences) in sentencing Mr Azari for the funding offence. 3. On 29 March 2019, her Honour imposed an effective total sentence on Mr Azari of 18 years' imprisonment. Pursuant to s 19AG, her Honour imposed a single non-parole period of 13 years and 6 months. The details of the offences, the maximum penalties, the discount (where applicable) for the plea of guilty and the sentences are set out in the following table. Period of offending Section of the Code/Offence Max penalty Discount for plea Sentence Between 12.01am on 18 July 2014 and 7.00pm on 18 September 2014 Sections 11.1(1) and 102.6(1)/funding offence (attempt to make funds of USD$9,000 available to Islamic State) 25 years' imprisonment 25% 8 years' imprisonment On or about 6 August 2017 Sections 11.1(1) and 102.6(1)/Attempt to make funds of USD$3,000 (being part of a total of USD$6,000) available to Islamic State 25 years' imprisonment N/A N/A: Taken into account on s 16BA schedule with respect to funding offence On or about 7 August 2017 Sections 11.1(1) and 102.6(1)/Attempt to make funds of USD$3,000 (being part of a total of USD$6,000) available to Islamic State 25 years' imprisonment N/A N/A: Taken into account on s 16BA schedule with respect to funding offence 15 September 2014 Section 101.6(1) of the Code/planning offence (participate in telephone conversation with Mr Baryalei) Life imprisonment N/A (convicted after trial) 12 years' imprisonment 1. Mr Azari pressed the following grounds of appeal: "1 The sentencing judge erred in taking into account offences admitted by [Mr Azari]. 2. There is disparity of sentence between the sentences imposed on [Mr Azari] and the sentences imposed on Ali AI-Talebi. 3. [No longer pressed.] 4. The sentence imposed on [Mr Azari] is manifestly excessive." 1. As ground 2, the parity ground, depends on an acceptance that the sentence is otherwise correct, it will be considered last. Before turning to the grounds, I propose to summarise the relevant factual findings made by N Adams J as to Mr Azari's offending conduct. The proceedings on sentence in respect of Mr Azari 1. No oral evidence was adduced at the proceedings on sentence. The Crown presented the relevant indictments and tendered the form for the purposes of s 16BA, a report from Corrective Services and two affidavits from Corrective Services officers. The evidence tendered on behalf of Mr Azari included an affidavit of Mr Azari as to his conditions of custody, which was read without objection. He was not required for cross-examination. He also tendered a statement of admissions pursuant to s 184 of the Evidence Act 1995 (NSW). 2. In the proceedings on sentence, the Crown submitted, in written submissions: "For the offences on a schedule pursuant to s 16BA of the Crimes Act, the Crown submits that whilst the primary focus of the Court must be on the offences for sentence, the Court should give greater weight to the need for personal deterrence which the admitted offence signifies and also to the community's entitlement to extract retribution in the form of punishment for the admitted offence. [footnote reference to Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1991 (No 1 of 2002) (2002) 137 A Crim R 180; [2002] NSWCCA 518 at [18];[42]. These principles were stated in relation to NSW legislation but have been held to be equally applicable to s 16BA Crimes Act: see R v Lamella [2014] NSWCCA 122 at [48].] The Court must assess the objective criminality of the admitted offence, though recognising that it assumes a significantly lower salience in the sentencing process than the offence for which sentence is to be passed. [footnote reference: R v Dennison [2011] NSWCCA [49]-[59].]" 1. An exchange occurred between her Honour and the Crown concerning the way in which the s 16BA offences ought be taken into account in which the Crown said: "And of course then we have set out in the written submissions the way in which your Honour deals with the 16BA schedule under the Crimes Act is the same essentially as a Form 1 … But your Honour would have to bear that in mind when you are looking at the way in which parity might apply but that is a matter in our submission really of form rather than substance but nevertheless being careful … that your Honour is taking those matters into account in the way in which that would be done for greater weight for personal deterrence and retribution on behalf of the community rather than discrete individual punishment which might be the case if it was a separate charge other than on a schedule." The sentencing judgment in respect of Mr Azari Summary of facts relating to the offending conduct of Mr Azari 1. Although the findings of fact made by N Adams J as to the offending conduct are relatively similar to those made by Sutherland SC DCJ, I propose to summarise them since there are some slight differences. The funding offence 1. In about 2012, Mr Azari met Mr Baryalei, who, as referred to above, left Australia in 2013 to fight for Islamic State in Syria. In 2014, Mr Baryalei became a senior member of Islamic State in Syria. On 11 July 2014, Islamic State was declared a terrorist organisation. In about 2013, Mr Azari became a member of the Shura. At that time, the Shura was led by Hamdi Alqudsi, who was regularly in contact with Mr Baryalei until Mr Alqudsi's arrest in December 2013. After Mr Alqudsi's arrest, Mr Azari was in regular contact with Mr Baryalei. Mr Azari and other members of the Shura appreciated the risks of surveillance by the Australian authorities and took steps to minimise detection. 2. The Shura supported Islamic State by raising funds to be made available for those wishing to travel to Syria to fight for Islamic State. 3. Mr Azari's conduct with respect to the funding offence comprised the following acts. On 18 July 2014, he went with another man to a money exchange to convert Australian currency to US currency. Between at least 28 July 2014 and 20 August 2014, Mr Azari communicated with Mr Baryalei to discuss Mr Baryalei's need for funds; where the funds would be kept; and attempts to find a third person to effect the money transfer. Mr Azari recruited a young man, the Intermediary, to effect the money transfers. On 6 August 2014, Mr Azari met with Mr Al-Talebi, the Intermediary and another man in the underground carpark of the Parramatta Mosque. Mr Al-Talebi handed an envelope containing $6,000 to Mr Azari, who then passed it to the Intermediary. The Intermediary was then given USD $9,000 in a pink bag. Mr Azari was present while Mr Al-Talebi also handed a religious booklet to the Intermediary. 4. On 7 August 2014, Mr Azari provided instructions to the Intermediary as to how and to whom the US money was to be transferred in Turkey. When the Intermediary was unsuccessful in effecting the transfer, Mr Azari directed him to change the funds back into Australian currency. 5. Her Honour assessed the objective seriousness of the funding offence as below the mid-range of objective gravity and noted the similar finding of Sutherland SC DCJ when sentencing Mr Al-Talebi. The offences on the s 16BA schedule 1. The two offences which Mr Azari asked to be taken into account, pursuant to s 16BA, on his sentence for the funding offence concerned his involvement on 6 and 7 August 2014 with the transfer of $6,000 to Pakistan to assist foreign fighters for Islamic State. Her Honour found that Mr Azari had participated in telephone calls with Mr Ahmad, who was in Pakistan, and arranged for the Intermediary, to carry out the money transfers. Mr Azari's intention was to make the funds available to Islamic State or for those who would fight with or support Islamic State. The planning offence 1. On 15 September 2014, when Mr Azari spoke on the telephone to Mr Baryalei, he intended to be doing acts in preparation for or planning a terrorist act or acts. He was acting as a conduit between Mr Baryalei and the other members of the Shura. In the course of the conversation, which lasted for about 20 minutes, Mr Azari suggested that a religiously ignorant person or a minor (not under surveillance) be used to murder random members of the Australian public. Apart from passing on details of the phone call to other members of the Shura, Mr Azari did not do anything after this call to implement the plan. 2. Mr Azari held radical ideological beliefs and supported Islamic State and other militant Islamist groups. He was prepared to follow the orders of the Commander of Islamic State. 3. Her Honour assessed the gravity of the planning offence as being below mid-range. Mr Azari's subjective circumstances and other matters relevant to sentencing 1. Her Honour found that Mr Azari had been born in Afghanistan and was to be sentenced on the basis that he was 20 years old at the time of his arrest. After starting school in Kabul, he and his family had migrated to Australia on humanitarian visas. He did not speak English when he arrived in Australia. He was one of nine children, two of whom died in infancy and a further two died while fighting in Syria for Islamic State. He completed high school and speaks several languages (Hindi, Persian, Dari, Pashto, English and basic French). After finishing school, he worked for a company that was involved in the Special Olympics, where he worked with the disabled. He represented New South Wales in soccer. 2. Her Honour took into account Mr Azari's lack of criminal history and his prior good character. The sentencing judge also took into account the significant delay (the reasons for which are set out in detail in the reasons for sentence: R v Azari (No 12) [2019] NSWSC 314) in finalising the planning offence, which had resulted in Mr Azari spending 4 years, 6 months and 12 days on remand. Her Honour also took into account Mr Azari's unchallenged affidavit evidence given at the sentence hearing as to his conditions of custody. 3. As set out in the table above, her Honour allowed a discount of 25% for the plea of guilty to the funding offence. Her Honour noted that in his evidence at the trial for the planning offence Mr Azari did not express any contrition for the funding offences and maintained that he believed it to have been his religious obligation to engage in the conduct which constituted the funding offence, to which Australian laws were subordinate. Her Honour also noted that, notwithstanding his conviction after trial, Mr Azari maintained his innocence of the planning offence. Her Honour was not satisfied that Mr Azari had disavowed or modified his extremist views and took this matter into account in assessing his prospects of rehabilitation and the need for community protection. 4. Her Honour considered the need for specific and general deterrence and the need, under s 16A(2)(k), for the sentences to constitute adequate and proportionate punishment for the crimes. Her Honour referred to the comparative cases relied on by the parties. The offences on the s 16BA schedule 1. It is necessary to set out her Honour's reasons as to the relevant principles since they are the subject of ground 1 of Mr Azari's application for leave to appeal. Her Honour said, at [180]: "The offender has asked the court to take into account under s 16BA of the Crimes Act two further funding offences. Even though these matters assume less importance in the sentencing process than the charged offences, it is still necessary for the court to assess the objective criminality of them: R v Dennison [2011] NSWCCA 114 at [47]–[57]. Greater weight is to be given to the need for personal deterrence which the admitted offence signifies, and also to the community's entitlement to extract retribution in the form of punishment for the admitted offence: Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1991 (No 1 of 2002) (2002) 56 NSWLR 146; (2002) 137 A Crim R 180; [2002] NSWCCA 518 at [18]; [42]. These principles were stated in relation to NSW legislation but have been held to be equally applicable to s 16BA Crimes Act 1914: see R v Lamella [2014] NSWCCA 122 at [48]." [Emphasis added to indicate the sentence which is the subject of ground 1.] Parity 1. Her Honour noted that, on 28 August 2017, Judge Sutherland had sentenced Mr Al-Talebi to a total term of 12 years' imprisonment with a non-parole period of 9 years' imprisonment (being the minimum ratio between the non-parole period and the total term for terrorism offences). Her Honour identified the offences for which Mr Al-Talebi had been sentenced by Judge Sutherland and had regard to the sentences which his Honour had imposed. 2. Her Honour noted that the sentences for the two offences contrary to s 102.7(1) (which were ordered to be served concurrently) were based on Mr Al-Talebi's role in the transactions on 7 and 8 August 2014 which involved the Intermediary and the offence contrary to s 102.6(1) was based on his dealings involving the USD $9,000. Her Honour also referred to the findings of Judge Sutherland as to objective seriousness. Her Honour stated the principles relating to parity in a manner which is not the subject of challenge. On the question of parity, her Honour said at [192]-[193]: "192 Although the offences under ss 102.6(1) and 102.7(1) carry the same maximum penalty of 25 years, it is not an element of the offender's funding offence that the funds would help Islamic State engage in preparing, planning, assisting in or fostering the doing of a terrorist act. For the s 102.6(1) offence, Al-Talebi was sentenced on the basis that the funds were intended to be directly utilised by a person identified as a senior member of Islamic State, or at least a person in a position of senior responsibility. 193 There are some differences and similarities between the offender and Al-Talebi. Although Al-Talebi was sentenced on the basis that his offences were committed jointly with the offender, the offender is only to be sentenced for the s 102.6(1) offence, with two additional offences of that type to be taken into account. It is also noted that the offender's additional matters are not the same as Al-Talebi's offences in counts 1 and 2. In addition, Al-Talebi was older and he was the person who provided the extremist literature to [the Intermediary], albeit in the presence of the offender." Totality 1. Her Honour said on the question of totality: "198 I am also required to apply common law principles of totality: Johnson v The Queen (2004) 78 ALJR 616. The offender is to be sentenced for two serious offences and in relation to one of them a further two offences are to be taken into account under s 16BA of the Crimes Act 1914. The question arises as to the degree of concurrence and accumulation warranted in order to reflect the total criminality of the offender. Senior counsel for the offender accepted that a level of accumulation was appropriate, but submitted that it ought to be more modest than that submitted by the Crown. 199 Although there is a factual continuum between the conduct constituting the funding offence and the planning offence, the goals in each case were separate. The criminality involved in making funds available to Islamic State to fund foreign fighters and that involved in doing an act in preparation for, or planning, a domestic terrorist act or acts is different. The sentences must be accumulated to a significant extent to reflect this. 200 In compliance with s 19AG(2)(b) and the principle of totality I propose to indicate the appropriate head sentence on each of the offences, allow for a degree of concurrence, review the total sentence to consider whether the aggregate term is a just and appropriate measure of the total criminality involved: s 16A(1) Crimes Act 1914 and then finally fix the non-parole period of 75% on that aggregate head sentence." Mr Azari's ground 1: alleged error with respect to offences on the s 16BA schedule 1. Mr Odgers SC, who appeared on behalf of Mr Azari in this Court, submitted that her Honour was in error in two respects when taking into account the s 16BA offences. First, he contended that her Honour was in error in finding that it was appropriate to exact retribution in the form of punishment "for the two admitted offences" and that this was contrary to what this Court said in Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1991 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 (the Guideline Judgment). Second, he submitted that her Honour had erred in the application of the principle of totality, as enunciated in Sparos v R [2013] NSWCCA 223; (2013) 235 A Crim R 462 (Sparos) at [4]-[7] (Fullerton J, Beazley P agreeing) by taking the s 16BA offences into account in the total sentence, when they had already been taken into account in fixing the sentence for the funding offence. These arguments will be considered in turn. 2. In support of the first argument, Mr Odgers referred to what Spigelman CJ said in the Guideline Judgment at [42] (Wood CJ at CL, Grove, Sully and James JJ agreeing): "The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another." 1. Mr Odgers contended that the correct analysis was that the principle of retribution was to be applied in respect of the principal offence, not the admitted offence, and that the sentencing judge was in error in referring to "the community's entitlement to extract retribution in the form of punishment for the admitted offence" (emphasis added). He relied on the highlighted extract from the following passage in the judgment of Bathurst CJ in Abbas v R; Bodiotis v R; Taleb v R and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [22], as follows: "In my respectful opinion, the approach suggested by Adams J is incorrect if it is interpreted as meaning that a sentence cannot be increased to take into account an additional need for deterrence and retribution in respect of the offences charged by virtue of the Form 1 offences being taken into account. Such an interpretation is contrary, in my opinion, to the meaning of s 33 properly construed and to what was said by Spigelman CJ in Attorney General's Reference. Section 33(1) empowers the Court to take the further offences into account where the preconditions in that section and s 32 are met. It is clear from the provisions of s 33(3) that that could lead to an increase in penalty up to the maximum penalty for the principal offence. The existence of these additional offences may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged. This does not mean the Court is imposing a separate penalty for the Form 1 offences. Rather, as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]-[54], it takes these matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender is convicted." [Emphasis added to indicate the particular section relied on by Mr Odgers.] 1. Judicial statements, including those to be found in guideline judgments issued pursuant to Division 4 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW), are not to be read as if they were words in a statute, any deviation from which will result in an error of law. For the following reasons, I regard Mr Odgers' argument as semantic. 2. No sentence is imposed for an offence listed on a s 16BA schedule (or a Form 1 for State offences). Thus, specific deterrence and punishment (or retribution) can only be reflected in the sentence imposed for the offence of which an offender has been convicted and not for an offence where guilt has been admitted but for which the offender has not been convicted (such as, in the present case, the s 16BA offences). Mr Odgers' argument depends, in part, on the ambiguity in the word "punishment". Punishment is a synonym for penalty or sentence: that is, it refers to the result, which, in this case, is a term of imprisonment. However, punishment is also a relevant consideration in determining the sentence (or punishment) as provided for in s 16A(2)(k), which refers to "the need to ensure that the person is adequately punished for the offence" (emphasis added). In this context, punishment is a synonym for retribution, which is one of the purposes of sentencing. 3. The effect of the s 16BA offences is to increase the sentence that would otherwise have been imposed for the funding offence. Whether the additional penalty (being the uplift in the offence for which the offender has been convicted) is regarded as being due to specific deterrence or retribution or some other matter, it is nonetheless, by definition, punitive since it adds to the punishment, which as the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) said in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [24] is measured in "units of punishment usually expressed in time or money." Thus, Mr Azari has been punished for the admitted offences (the s 16BA offences), although he can only ever be sentenced for the offences of which he was convicted. 4. I note that Mr Odgers orally submitted first, that the Crown's written submissions on sentence were wrong; second, that her Honour had been led into error by adopting them; and, third, that this Court had "no choice" but to conclude that the appeal ought be allowed. I reject each of these submissions. The Crown's written submissions were expressly explained to her Honour orally in the course of the proceedings on sentence. The Crown gave her Honour the assistance to which she was entitled. 5. Her Honour referred to the relevant authorities. Further, the passage extracted above contains the only reference made by her Honour to retribution. There is nothing in the sentencing judgment to suggest that her Honour did other than apply the well-established principles. To the extent to which it could be said that her Honour put the matter around the wrong way, I regard this as a mere slip and not an error of principle. 6. As to the second argument, I am not persuaded that there was any error in her Honour's application of the principle of totality. In Sparos, Fullerton J said at [7] (Beazley P agreeing): "I accept, of course, that the totality principle operates to ameliorate the effect of two or more sentences being wholly accumulated by obliging the sentencing judge to make an assessment of the overall criminality in the offender's criminal conduct to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. However, in accordance with the approach mandated in Pearce v R (1998) 194 CLR 610; 103 A Crim R 372, this necessarily occurs after the individual sentences have been imposed, since it is only at that time that any informed assessment can be made of the degree of adjustment necessary to achieve the relativity between the effective sentence and the total criminality in the offences for which the offender has been convicted. In my view, the sentencing judge is not permitted to take into account in that assessment the criminality reflected in the offences the offender asked be taken into account on the Form 1 and for which he or she has not been convicted. I regard the reference to the overall criminality in the various seminal authorities concerned with the totality principle to which Beech-Jones J has referred at [38]-[41] [in Sparos] as limited to the offending the subject of a criminal conviction." 1. The sentencing judge referred to the Guideline Judgment and took the s 16BA offences into account when imposing the sentence for the funding offence. The principle of totality affected the degree of concurrency and accumulation between the respective sentences imposed for the funding and planning offences. The sentence for the funding offence had already built into it an unquantified allowance for any uplift associated with the s 16BA offences. There is no indication that the s 16BA offences were taken into account again or that there was any aspect of double-counting in the approach taken by her Honour. 2. Accordingly, I am not persuaded that ground 1 has been made out. Mr Azari's ground 4: alleged manifest excess 1. Mr Odgers did not challenge the individual sentence imposed for the planning offence. He challenged the individual sentence for the funding offence only on the basis set out in ground 1. However, he submitted in support of ground 4 that the level of accumulation between the sentences of six years was unreasonable and that there should have been significantly greater concurrence between the sentences. He instanced several cases where there had been a greater degree of concurrence between sentences imposed for distinct sentences which could be regarded as a course of conduct and argued that the concurrence allowed in the present case was far too limited. 2. Where a judge is required to sentence an offender for more than one offence, the judge must specify the appropriate sentence for each offence as well as consider questions of totality: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45] (McHugh, Hayne and Callinan JJ). The principle of totality requires the judge to ensure that the total effective sentence for the criminal conduct is appropriate for the whole of the offending: Mill v The Queen (1988) 166 CLR 59 at 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); [1988] HCA 70. Further, although the almost inevitable effect of the totality principle is that the total effective sentence will be less than the sum of its parts, sentencing is not linear: that is, a sentence which is twice as long as another sentence may have much more than twice the impact on the offender: R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 (MAK) at [15]-[16] (Spigelman CJ, Whealy and Howie JJ). Further, it is important, in this context, that a sentencing judge not give the impression that there is a discount for a greater number of offences (R v Knight [2005] NSWCCA 253; (2005) 155 A Crim R 252 at [112] (Johnson J, Mason P and Barr J agreeing), cited with approval in MAK at [18]), or that no, or little, penalty is imposed for additional offences: MAK at [18]. 3. The Crown accepted that the two offences for which Mr Azari was to be sentenced could, in some respects, be regarded as constituting a course of conduct. It acknowledged that both the funding and planning offences were committed with the same motivation, which sprang from Mr Azari's holding fundamentalist Islamist beliefs and a belief that violence (either in Australia or in Syria) was an appropriate means to achieve the requisite ends. However, in other respects the planning offence and the funding offence were both distinct and different. The funding offence involved Mr Azari taking part in an attempt to make funds available to a terrorist organisation (Islamic State). The planning offence involved him doing an act (making a telephone call) in preparation for, or planning, a terrorist act, being the murder of random members of the public in Australia for a terrorist purpose. 4. In the proceedings on sentence, counsel for Mr Azari accepted that a degree of accumulation in the sentences was required to reflect the different criminality of the two offences. The real question was how much was appropriate. This was a discretionary judgment for her Honour: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [28] (Howie J, Price J agreeing). I am not persuaded that the discretion was exercised erroneously or that the total effective sentence imposed was not open to her Honour. The parity ground Mr Azari's ground 2: alleged disparity between the sentence imposed on Mr Azari and that imposed on Mr Al-Talebi Mr Al-Talebi's ground 1: alleged disparity between the sentence imposed on Mr Al-Talebi and that imposed on Mr Azari 1. The parity principle, which is a manifestation of the principle of equal justice, is that there should not be a "marked disparity" with the sentence imposed on a co-offender such as to give rise to a "justifiable sense of grievance" in one or other of the co-offenders: Lowe v The Queen (1984) 154 CLR 606 at 610 (Gibbs CJ, Wilson agreeing), 612-613 (Mason J) and 623 (Dawson J); [1984] HCA 46 and Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] (French CJ, Crennan and Kiefel JJ). Whether there is a justifiable sense of grievance is to be assessed objectively by reference to matters of substance and not form: DS v R [2014] NSWCCA 267 at [39] (Bathurst CJ, Fullerton and Davies JJ). 2. As both Mr Azari and Mr Al-Talebi raised alleged disparity as a ground, it is convenient to address them together. I note that, as is evident from the narratives set out above, this is not a case where the factual substratum of two co-offenders was found to be significantly different such that would make comparison between their sentences impossible without close analysis of the factual substratum: cf. PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61 at [24], [48] (Basten JA, Button and N Adams JJ relevantly agreeing) and Martellotta v R [2021] NSWCCA 168 at [59]-[60] (Adamson J, Basten JA and Walton J agreeing). 3. There were substantial similarities between the roles played by Mr Azari and Mr Al-Talebi concerning the provision of funding. This is evident from the findings as to their conduct and role made by the two sentencing judges as set out above and summarised in the table below. Activity or responsibility Mr Al-Talebi Mr Azari Paragraph in sentencing judgment of Sutherland SC DCJ Paragraph in sentencing judgment of N Adams J Membership of Shura Yes: [42] Yes: [17] Acted as a conduit for Baryalei with the Shura Yes: [42] Yes: [25], [30], [31], [34] Converted money into USD N/A. Converted AUD notes into USD notes with another man at a money exchange: [28] Noted Mr Azari's involvement in converting money: [47] Recruitment of the Intermediary to transfer money Mr Al-Talebi asked Mr Azari whether he had found someone to transfer the money: [51] Recruited the Intermediary: [131] Responsibility for USD $9,000 Held money on behalf of the Shura and was in the position to make responsible decision regarding disposition of funds: [42] Handing over cash to the Intermediary Met with Mr Azari and others, including the Intermediary, in the carpark of the mosque where he handed Mr Azari USD $9,000 and $6,000, whereupon Mr Azari gave these two amounts of cash to the Intermediary: [52] [37]-[38] Indoctrination of others In the carpark under the mosque, Mr Al-Talebi provided the Intermediary with a religious pamphlet entitled, "How Should We Be Pleased in Staying Behind": [51] [37]-[38] Transfer of funds to Pakistan Conveyed to a person in Pakistan the details of the transfer (of 2 x $3,000) by payphone: [54] 1. Their subjective cases were relatively similar. Mr Azari was thought to be 20 years old at the time of the offending, whereas Mr Al-Talebi was 24 years old at the time of the offending. Both men were born in the Middle East. Mr Al-Talebi came to Australia on a boat and was granted refugee status. Mr Azari migrated to Australia on a humanitarian visa. Both were regarded as being of prior good character. Neither was found to be remorseful or contrite. General deterrence and specific deterrence were regarded as significant in both cases. 2. Mr Odgers accepted that, for the purposes of the parity ground, the relevant comparison was between the starting point for Mr Azari for the funding offence (which was 10 years and 8 months' imprisonment) and the sentence imposed on Mr Al-Talebi for two offences contrary to s 102.7(1) of the Code and one offence pursuant to s 102.6(1) of the Code. For each of these three offences, Mr Al-Talebi was sentenced to a term of imprisonment of 10 years. The level of accumulation between the three sentences imposed was such as to give rise to a total sentence of 12 years' imprisonment, with a non-parole period of 9 years' imprisonment. 3. Mr Pontello SC, who appeared with Ms Phelps for Mr Al-Talebi in this Court, accepted that, despite the differences in the charges, both offenders were sentenced for the same activities which founded the funding offences, that is, their involvement in the transfer of $3,000 on two occasions and an attempt to transfer USD $9,000, intending that it be transferred to Islamic State. 4. While Mr Odgers made much of the alleged concession by the Crown that Mr Al-Talebi was "slightly higher in the hierarchy of persons involved in the funding" than Mr Azari, it was contended in written submissions prepared on behalf of Mr Al-Talebi, that "… in several respects, [Mr] Azari had a more critical role than [Mr Al-Talebi]." While Mr Pontello relied on the circumstances that Mr Al-Talebi did not recruit the Intermediary or accompany him to the money transfer business or speak directly to Mr Baryalei, Mr Odgers relied on the circumstances that it was Mr Azari who handed over the cash to the Intermediary and that he gave the Intermediary the booklet. Each contended that the role of the other offender was greater. 5. As has been referred to above, although the offence involving USD $9,000 was charged in both cases as being an offence contrary to s 102.6(1) of the Code, the other two offences were charged, in the case of Mr Azari, under the same section but were ultimately included on a s 16BA schedule. In the case of Mr Al-Talebi, the other two offences were separately charged under s 102.7(1) of the Code and, when proved to the jury's satisfaction, required distinct sentences to be imposed in respect of each. 6. The decision whether to include offences on a schedule under s 16BA or to proceed with them on an indictment is one which involves the exercise of prosecutorial discretion which is not reviewable by this Court. Generally, although not necessarily, the inclusion of offences on a s 16BA schedule will result in a higher overall sentence: the Guideline Judgment at [34]. As I said in Dunn v R [2018] NSWCCA 108 at [16]-[24] (Macfarlan JA and Johnson J agreeing), this makes comparisons for parity purposes less helpful. Thus, the inclusion of matters on a s 16BA schedule in respect of one offender is not a merely formal matter which can be disregarded for parity purposes as against a co-offender who was actually convicted of each charge and was, accordingly, required to be sentenced for each. 7. I accept the Crown's submission that the circumstance that different charges (whether under s 102.6(1) or s 102.7(1) of the Code) were laid against the two offenders was, in effect, immaterial because the maximum penalty for each was 25 years' imprisonment, and their conduct was related and substantially similar. Thus, it was not significant that the Crown did not have to prove, as an element of the funding offence against Mr Azari, that the funds would help Islamic State to engage in preparing, planning, assisting or fostering the doing of a terrorist act, since Mr Azari admitted at trial that he knew that the funds would be used to fund fighters on the ground. 8. I accept the Crown's submission before both sentencing judges and in this Court that the roles played by each offender, though different, were of similar importance to the overall aim. That Mr Al-Talebi happened to be the man who actually handed the money to the Intermediary was not of particular consequence in circumstances where the provenance of the money had not been established. Nor was it particularly significant that it was Mr Azari who had gone to the money exchange business and not Mr Al-Talebi. 9. In effect, disregarding the effect of the discount allowed for Mr Azari's guilty plea, Mr Azari was sentenced for the funding offence, taking into account the s 16BA offences, to a sentence of imprisonment of 10 years and 8 months' imprisonment. Mr Al-Talebi was sentenced for the three substantive offences to an effective term of 12 years' imprisonment with a non-parole period of 9 years. The sentences were within a similar range. The lower sentence for Mr Azari may be explained by inclusion of the s 16BA offences on the schedule, rather than as separate charges on the indictment, and by his relative youth. 10. I am not persuaded that either Mr Azari or Mr Al-Talebi has a justifiable grievance arising from the sentences imposed on each of them. 11. For the reasons given above, I propose the following orders: Proceedings 2014/274649 and 2014/368436 1. Grant leave to appeal against sentence. 2. Dismiss the appeal. Proceedings 2014/367702 1. Grant leave to appeal against sentence. 2. Dismiss the appeal. 1. BELLEW J: I have had the advantage of reading, in draft, the judgment of Adamson J. I agree with the orders her Honour proposes, and with her Honour's reasons. ********** Amendments 25 August 2021 - catchwords inserted - coversheet 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: 25 August 2021