Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Almaouie v R [2021] NSWCCA 274 Hearing dates: 6 September 2021 Date of orders: 19 November 2021 Decision date: 19 November 2021 Before: Beech-Jones CJ at CL at [1] R A Hulme J at [32] Wilson J at [33] Decision: (1) Extend the time in which the applicant may apply for leave to appeal against his sentence up to and including 7 May 2021; (2) Allow the appeal; (3) Set aside the sentence imposed on the applicant on 3 November 2017 for the offence of conspiring to do acts in preparation of a terrorist act contrary to ss 11.5 and 101.6(1) of the Criminal Code 1995 (Cth); (4) In lieu thereof: (a) For the offence of conspiring to do acts in preparation of a terrorist act, sentence the applicant to imprisonment for a period of 16 years and 6 months commencing on 10 December 2015 and expiring on 9 June 2032; (b) Specify a non-parole period for the offence of conspiring to do acts in preparation of a terrorist act of 12 years and 6 months commencing on 10 December 2015 and expiring on 9 June 2028; (c) Note that the total sentence imposed on the applicant commenced on 18 December 2014 and will expire on 9 June 2032 and the applicant will be first eligible for release on parole on 9 June 2028; (d) Pursuant to s 105C of the Criminal Code 1995 (Cth) warn the applicant that an application may be made for a continuing detention order requiring him to be detained after the completion of his sentence. Catchwords: SENTENCING – terrorist offence – utilitarian value of plea for federal offence – Xiao error – applicant re-sentenced Legislation Cited: Counter-Terrorism Legislation Amendment (2019 Measures No 1) Act 2019 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Code 1995 (Cth) Firearms Act 1996 Cases Cited: Alou v R [2019] NSWCCA 231 Elomar v R [2014] NSWCCA 303 Faheem Khalid Lodhi v Regina [2007] NSWCCA 360; (2007) 179 A Crim R 470 IM v R [2019] NSWCCA 107 Jinde Huang aka Wei Liu v R [2018] NSWCCA 70 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Khalid v R [2020] NSWCCA 73 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 Category: Principal judgment Parties: Jibryl Almaouie (Applicant) Regina (Respondent) Representation: Counsel: TD Anderson (Applicant) BJ Power (Crown) Solicitors: Legal Aid NSW (Applicant) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2014/376663; 2015/362992 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Criminal Citation: R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365 Date of Decision: 03 November 2017 Before: Bellew J File Number(s): 2015/362992 Judgment 1. BEECH-JONES CJ at CL: This is an application for leave to appeal against a sentence imposed on 3 November 2017 by Bellew J on the applicant, Jibryl Almaouie, for an offence of conspiracy to do acts in preparation for a terrorist act contrary to ss 11.5 and 101.6(1) of the Criminal Code 1995 (Cth) ("the Code") and firearms offences (R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365). 2. Although his Honour sentenced the applicant in accordance with the law applying at the time, it was accepted by the Commonwealth Director of Public Prosecutions (the "CDPP") that, in light of the subsequent decision of this Court in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 ("Xiao"), his Honour erred in his consideration of the applicant's plea of guilty. For the reasons that follow that concession was well founded and it will be necessary to resentence the applicant (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37). 3. The application was filed out of time, although the Court has the power to extend the period within which the application might be filed (Criminal Appeal Act 1912, s 10(1)). In view of the explanation given by his solicitor for the delay, namely that it arose out of the decision in Xiao, and the strength of the application, I propose that the extension of time be granted. Background 1. On or about 31 July 2017, the applicant entered a plea of guilty to an indictment that charged that he, Sulayman Khalid ("Khalid") and a third offender, IM, between about 7 November 2014 and 18 December 2014, at Sydney in the State of New South Wales, did conspire with each other and Mohamed Al Maouie, Ibrahim Ghazzawy, Farhad Said and diverse others to do acts in preparation for a terrorist act (or acts) (the "conspiracy offence"). The maximum penalty for an offence contrary to ss 11.5 and 101.6(1) of the Code is imprisonment for life. 2. The applicant also pleaded guilty to a separate indictment containing four firearms offences committed on 18 December 2014, specifically one count of possessing an unauthorised firearm, one count of possessing a shortened firearm and two counts of possessing an unregistered firearm contrary to s 7A(1), s 62(1)(b) and s 36(1) of the Firearms Act 1996 respectively. They had maximum penalties of 5 years, 14 years and 14 years imprisonment respectively. 3. On 3 November 2017, Bellew J convicted the applicant of the firearm offences and sentenced the applicant to concurrent fixed terms of imprisonment all of which commenced on 18 December 2014. As noted below, there is an issue about the appropriate start date for the sentence for the firearms offence. Three of those sentences were of 6 months duration but the offence concerning the shortened firearm was of 12 months duration. It expired on 17 December 2015. For the conspiracy offence, the applicant was sentenced to a term of imprisonment of 18 years and 10 months commencing on 10 December 2015 and expiring on 9 October 2034 with a non-parole period of 14 years and 2 months expiring on 9 February 2030. 4. As the conspiracy offence is a "terrorism offence" as defined in s 3 of the Crimes Act 1914 (Cth), his Honour was obliged to impose a single non-parole period on the applicant which was at least three quarters of his sentence for the conspiracy offence (Crimes Act 1914, s 19AG(2)). Further, since the time his Honour sentenced the applicant, the Counter-Terrorism Legislation Amendment (2019 Measures No 1) Act 2019 has come into force. It inserted s 19ALB in the Crimes Act which, inter alia, precludes the Attorney-General from making a parole order in respect of the applicant unless satisfied that "exceptional circumstances exist". It was not contended that the Court was required to consider that provision in resentencing the applicant. The Conspiracy Offence and the Firearms Offences 1. Although they were related, the conspiracy offence and the firearms offences were the subject of separate agreed statements of fact that were tendered before Bellew J. The following is taken from those agreed statements. 2. The period of the conspiracy offence was from 7 November 2014 to 18 December 2014. As at that time, the applicant was 21 years of age, Khalid was 20 years of age and IM was just over 14 years of age. They were all under surveillance. The agreed statement of facts identifies up to nine persons as having participated in the conspiracy offence which included the applicant, Khalid and IM as well as two other offenders that his Honour sentenced for a different offence, namely Mohamed Rashad Al Maouie and Farhad Said. Mr Al Maouie and Mr Said pleaded guilty to a single charge on a separate indictment that charged them with intentionally making a document that was connected with preparation for a terrorist act knowing of that connection contrary to s 101.5(1) of the Code. 3. The agreed facts for the conspiracy offence describe Khalid as the "leader" and the applicant as "high up in the group". Each of the three offenders was an adherent to a religious ideology of pursuing "violent jihad" (as opposed to jihad in the form of "spiritual struggle"). They conspired to do acts in preparation for, or the planning of, terrorist acts in order to intimidate Australian governments and the public. The agreed facts noted that the nature of the acts and the proposed targets were unresolved but included killing a member or members of the Australian Federal Police or the New South Wales police force or attacking government buildings. The agreed facts included a detailed description of the overt acts of the conspiracy as well as a general description as follows: "(a) Considering, orally and in writing, various possible forms of terrorist act including ways to carry out the act or acts (including using firearms in a direct attack or using guerrilla tactics); (b) Considering possible targets for a terrorist act or acts, such as individual members of the New South Wales Police Force or the Australian Federal Police, and the Australian Federal Police headquarters building; (c) Sourcing, obtaining and retaining firearms and ammunition; (d) Numerous telephone communications (by text message and by telephone conversations) about impending martyrdom, training for a domestic terrorist attack, planning a domestic terrorist attack and firearms and ammunition; and (e) Meeting at the offender's premises at 13 Berry St Regents Park during the evening and early morning of 17 and 18 December 2014 for the purpose of considering documents the conspirators had made in preparation for a terrorist act." 1. The scope and object of the conspiracy as well as the state to which it was advanced is best illustrated by reference to six documents referred to in the agreed statement of facts which were seized when a search warrant was executed at Khalid's premises on 18 December 2014. Of the six documents, two were written by the applicant. One of the documents the applicant wrote was described as "contain[ing] images and descriptions of three firearms" referred to as "motorbikes", which confirms previous coded references to "motorbikes" during conversations to which the applicant was a party, being a reference to firearms. The second of those documents was described as referring to the "Sydney Siege in the CBD" and says "the earlier we do things the better" and "The time is NOW!!!". The third document was written by Khalid and described the "AFP building [as] a good target". The fourth document contained a rudimentary discussion of guerrilla warfare. The fifth document referred to attacking Lithgow jail and the sixth document consisted of the words "Blue Mountains", "Bush" and "Buildings/Protections". 2. The agreed facts outline various meetings and intercepted communications between the co-conspirators. The intercepted communications between Khalid and IM suggest that IM was preparing to martyr himself. 3. As noted on 18 December 2014, a search warrant was executed at Khalid's home. A search warrant was also executed at the home the applicant occupied with his mother and siblings. Consistent with the conspiracy charge, the police located in his bedroom a bolt action 303 calibre rifle, a 12-gauge double barrel for a shotgun with a separate wooden stock and a shortened 12-gauge barrel with a separate sawn off timber stock. The rifle chamber for the 303 calibre rifle was empty but a number of live rounds were loaded in a magazine. Each of the other firearms contained live ammunition. The police also located different calibre ammunition in the bedroom. The applicant's possession of the bolt action rifle was the basis for both of the possess unauthorised firearm and possess unregistered firearms offences. His possession of the sawn-off shotgun was the basis for the possess shortened firearm offence and the other possess unregistered firearm offence. Offences concerning his possession of the other shotgun, possession of ammunition and not keeping a firearm safely were included on a form filed with the Court pursuant to s 32(1) of the Crimes (Sentencing Procedure) Act 1999 that was associated with one of the charges of possession of unauthorised firearm. 4. The applicant was arrested and charged on 9 January 2015 with the firearms offences. He was not arrested on any charge arising out of his involvement in the conspiracy until 10 December 2015. The Sentencing Judgment 1. As the complaints on appeal only concerned the start date for the firearms offences and his Honour's consideration of the applicant's plea of guilty on the conspiracy charge, his Honour's findings on sentence need only be noted briefly. 2. First, his Honour characterised the conspiracy offence as "both significant and wide ranging" extending as it did to the discussion of proposed or possible targets (at [82]). His Honour rejected the contention that the acts being discussed by the participants was "naïve or fanciful" (at [90]) and the conspiracy was otherwise "amateurish" (at [92]). 3. Second, so far as Khalid was concerned, his Honour did not accept that his participation in the conspiracy offence should be considered an "aberration" (at [87]). His Honour found that he was "responsible for the co-ordination of many aspects of the conspiracy" (at [94]) and that his "actions place him at a level above the others" (at [94]). His Honour did not accept that "immaturity" was a factor in Khalid's offending and found that his youth was deserving of "little weight" (at [116]). His Honour found that there were some factors which "may point favourably towards rehabilitation" (at [123]). His Honour accepted that the conditions of Khalid's incarceration are harsh and are likely to prevail for the duration of his sentence (at [124]). Otherwise, his Honour noted that his plea of guilty was only entered on the day fixed for his trial (at [104]). Applying the authorities which at that time precluded his Honour from allowing any discount for the utilitarian benefit of the plea, his Honour allowed a discount of 10% (at [106]). 4. Third, in relation to the applicant, his Honour accepted that he was a "late joiner" to the conspiracy and prior to doing so he had no prior dealings with Khalid (at [155]). Otherwise, his Honour found that his offending "was of considerable objective seriousness" that "falls towards the upper end of the scale, although it is slightly lower than that of Khalid" (at [161]). Like Khalid, his Honour found that his youth was deserving of little weight on sentencing (at [172]) and his conditions of custody were harsh (at [175]). His Honour noted that the applicant had no previous criminal history and character testimonials that spoke highly of him (at [171]). His Honour considered that little weight should be given to the applicant's expressions of regret and renouncement of his previous adherence to a violent ideology (at [173] to [174]). However, his Honour added that his plea of guilty and the fact that he "has obviously used his time in custody productively by (inter alia) gaining employment are factors that operate in his favour [and] point tentatively towards a conclusion that his prospects of rehabilitation are more favourable than not" (at [174]). Like Khalid, the applicant pleaded guilty on the first day of his trial and received a discount of 10% for the same reason (at [169]). 5. Fourth, in relation to IM, his Honour characterised his conduct as "adult like behaviour" but found that his, "immaturity contributed to his offending" such that his youth is a mitigating factor (at [213]). IM had previously appeared before the Children's Court in respect of firearms offences (at [225]). His Honour found that some "factors tentatively point to a conclusion that his prospects of rehabilitation are more favourable than not" (at [228]). IM received a discount of 10% for his plea of guilty on the same basis as Khalid and the applicant (at [222]). 6. Fifth, his Honour also addressed the subjective cases of Mr Al Maouie and Mr Said. It is not necessary to outline them in detail. 7. Sixth, the sentences imposed on the applicant have already been noted. The sentence imposed on Khalid for the conspiracy offence was 22 years and 6 months with a non-parole period of 16 years and 9 months and on IM was 13 years and 6 months with a non-parole period of 10 years and 1 month. Other Appeals 1. IM sought and was granted leave to appeal against his sentence (IM v R [2019] NSWCCA 107). His appeal was upheld on the basis sought to be argued here namely that, as a consequence of Xiao, the sentencing judge erred in not allowing a discount for his plea of guilty for its utilitarian effect (at [12]). On resentence a further discount of 10% was allowed on account of the "late plea of guilty" (at [62]). After a consideration of the factors affecting the re-exercise of the sentencing discretion especially his youth, IM was resentenced to a term of imprisonment for 10 years and nine months with a non-parole period of 8 years. 2. Khalid also sought and was granted leave to appeal against his sentence (Khalid v R [2020] NSWCCA 73). His appeal was also upheld on the basis of a Xiao error (at [58]). On resentence a further discount of 10% was also allowed (at [97]) although it was noted that "[t]here may be a question in many cases where [a Xiao error] is identified, whether any potential utilitarian discount has been subsumed by any discount for facilitating the course of justice or, in the present case, as a demonstration of contrition and remorse" (at [88]). Khalid was not such a case and it was not contended that this is such a case. After a consideration of the factors affecting the re-exercise of the sentencing discretion, Khalid was resentenced to a term of imprisonment of 20 years with a non-parole period of 15 years. Grounds of Appeal and Resentence 1. Ground 1 of the appeal contends that the sentencing judge erred in not taking into account the utilitarian value of his plea of guilty. Ground 2 contends that his Honour erred in commencing the sentence for the firearms offences on 18 December 2014 rather than the first day he went into custody namely 9 January 2015. 2. Ground 2 can be addressed first. It seems that his Honour commenced the sentence for the firearms offences on the day the search warrant was executed at the applicant's home that discovered the firearms rather than the day he was arrested and refused bail, being 9 January 2015. An error of that kind concerns the exercise of the discretion conferred by s 47(2) of the Crimes (Sentencing Procedure) Act 1999 to fix the commencement date of a sentence. Although they are related, the exercise of that power is distinct from the exercise of the power to determine, say, the length of the non-parole period conferred by s 44(1). The commission of such an error does not necessarily engage any obligation in this Court to re-exercise the sentencing discretion as opposed to adjusting the start date to address the identified error (Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72] per Bathurst CJ). It does not do so here. The sentence for the firearms offences has now expired. Even though the applicant has raised this point, as it is his appeal and not the Crown's I see no warrant to increase his period in custody for those offences by three weeks. I do not propose to interfere with those sentences or adjust the commencement date for the conspiracy offence. 3. In relation to Ground 1, it follows from the above that the ground is made out and the sentencing discretion should be re-exercised. In Jinde Huang aka Wei Liu v R [2018] NSWCCA 70, at [9], Bathurst CJ with whom Hoeben CJ at CL agreed, suggested that, following the decision in Xiao, in dealing with a plea of guilty to a federal offence sentencing judges should take into account its utilitarian value and that a failure to do so constitutes error. His Honour also noted that it is desirable that any discount given for the utilitarian value be specified, although a failure to do so would not of itself constitute error. Consistent with that statement and the approach taken on appeal in Khalid, I consider that a discount of 10% on the account of the utilitarian value of the plea is warranted. 4. Otherwise, in relation to the re-exercise of the sentencing discretion, the applicant read an affidavit attaching prison records indicating that he has been generally well behaved in custody and has taken up the employment opportunities that are available to him. That said, he has incurred three breaches of prison discipline and declined to be assessed for participation in deradicalization programs This material is generally consistent with the assessment of Bellew J. The material tendered on resentence also noted a report of a prison inspector that detention at the Goulburn "Supermax" jail can "reinforc[e] and amplify ... radicalisation". This can be accepted and is reflected both in the findings about harsh prison conditions and the approach to rehabilitation. I otherwise adopt the findings of Bellew J concerning the applicant noted above. 5. In general, when sentencing for terrorism offences the object of the sentencing exercise is to punish, deter and incapacitate with rehabilitation only likely to play a minor part, if any (Khalid at [80] to [97] citing Faheem Khalid Lodhi v Regina [2007] NSWCCA 360; (2007) 179 A Crim R 470; Elomar v R [2014] NSWCCA 303; Alou v R [2019] NSWCCA 231). Further, for offences such as doing acts in preparation for a terrorist act or acts, the proximity of the planned offence, although relevant, does not necessarily determine the objective seriousness of the offence. Instead, the main focus must be on the offender's conduct and intention at the time the offence was committed (Khalid supra). Consistent with the approach taken by Bellew J, for such offences, sometimes a consideration of the youth of the offender needs to be moderated if the offender was "involved in serious and dangerous offending" (Khalid supra). 6. The applicant's submissions on re-sentence also point to considerations of parity between the sentences imposed on the applicant compared to those imposed on Khalid and IM. I accept that, if this Court does not interfere with the applicant's sentence, then there will be an unjustified disparity between his sentence and that imposed on Khalid on appeal, given Khalid's greater role in the offence. 7. Allowing for the matters raised on appeal and the findings of Bellew J, I propose that this Court resentence the applicant on the conspiracy offence to a term of imprisonment of 16 years and six months with a non-parole period of 12 years and 6 months. 8. Accordingly, the orders I propose are: (1) Extend the time in which the applicant may apply for leave to appeal against his sentence up to and including 7 May 2021; (2) Allow the appeal; (3) Set aside the sentence imposed on the applicant on 3 November 2017 for the offence of conspiring to do acts in preparation of a terrorist act contrary to ss 11.5 and 101.6(1) of the Criminal Code 1995 (Cth); (4) In lieu thereof: 1. For the offence of conspiring to do acts in preparation of a terrorist act, sentence the applicant to imprisonment for a period of 16 years and 6 months commencing on 10 December 2015 and expiring on 9 June 2032; 2. Specify a non-parole period for the offence of conspiring to do acts in preparation of a terrorist act of 12 years and 6 months commencing on 10 December 2015 and expiring on 9 June 2028; 3. Note that the total sentence imposed on the applicant commenced on 18 December 2014 and will expire on 9 June 2032 and the applicant will be first eligible for release on parole on 9 June 2028; 4. Pursuant to s 105C of the Criminal Code 1995 (Cth) warn the applicant that an application may be made for a continuing detention order requiring him to be detained after the completion of his sentence. 1. R A HULME J: I agree with Beech-Jones CJ at CL. 2. WILSON J: I agree with Beech-Jones CJ at CL. ********** Amendments 23 November 2021 - Orders (4)(a), (b) and (c) amended to indicate correct dates of new sentence imposed. 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: 23 November 2021