R (Cth) v Dakkak [2022] NSWDC 181

District Court New South Wales

Medium Neutral Citation: R (Cth) v Dakkak [2022] NSWDC 181 Hearing dates: 8 April 2022, 11 April 2022 Date of orders: 11 April 2022 Decision date: 11 April 2022 Jurisdiction: Criminal Before: Neilson DCJ Decision: Radwan Dakkak you are convicted. I sentence you to imprisonment for one year and eight months commencing on 16 January 2021 and concluding on 15 September 2022. I set a non-parole period of one year and three months expiring on 15 April 2022. Catchwords: CRIME – SENTENCE – INTERIM CONTROL ORDER – Accused pleaded guilty to breach of Interim Control Order - Terrorism offence. Legislation Cited: Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) Cases Cited: R v Alo-Bridget Namoa (Parramatta District Court, 29 November 2021) Naizmand v R [2018] NSWCCA 25 R v MO (No 1) [2016] NSWDC 144 Regina (Cth) v Ahmad Saiyer Naizmand [2017] NSWDC 4 Texts Cited: Nil. Category: Sentence Parties: Regina – Crown (Cth) Defence – Radwan Dakkak Representation: Crown Rodger, R instructed by the Commonwealth Director of Public Prosecutions Defence Quilter, T. instructed by LegalAid File Number(s): 2021/00013405 Publication restriction: Nil.

Judgment

Background 1. HIS HONOUR: Radwan Dakkak stands for sentence as a consequence of pleading guilty to a charge that between 2 January 2021 and 12 January 2021 at Sydney in this State and elsewhere, he did contravene a control order by accessing electronic media. That is an offence contrary to s 104.27 of the Criminal Code Act 1995 (Cth). The maximum penalty for that offence is five years imprisonment. 2. To understand the nature of the charge it is necessary to go back in time. This is the second occasion on which the offender has stood for sentence in the courts of this State. On 18 December 2020 the offender was convicted and sentenced on two counts of associating with a terrorist organisation contrary to s 109.8(1) of the Criminal Code Act 1995 (Cth). 3. The charges were firstly that on two or more occasions, between 1 January 2019 and 2 July 2019, he did intentionally associate with another person, namely Isaac El Matari, knowing that he was a member of, and a person who promoted and/or directed the activities of, an organisation, namely Islamic State, and knowing that organisation was a terrorist organisation, in circumstances where the association provided support to the organisation and intending that the support assist the organisation to expand or continue to exist. 4. The second offence to which the offender pleaded guilty was that on two or more occasions between 26 July 2017 and 2 July 2019 he did intentionally associate with another person, namely Sheikh Hassan Hussein and a person or persons Ahlut-Tawhid Publications, knowing that they were members of, and were persons who promoted and/or directed the activities of, an organisation, namely Islamic State, and knowing that organisation is a terrorist organisation, in circumstances where the association provided support to the organisation and intending that the support assist the organisation to expand or continue to exist. 5. For those offences, the offender appeared before Hamill J in the Supreme Court and was sentenced to imprisonment for eighteen months commencing on 2 July 2019 and expiring on 1 January 2021. His Honour imposed a single non-parole period of 14 months which expired on 1 September 2020. However the Attorney-General of the Commonwealth of Australia did not permit the offender to be released on parole. He was released from custody on 1 January 2021 at the expiration of the head sentence imposed by Hamill J. 6. At the time that he was released from custody the offender was issued with an Interim Control Order ("ICO") which had been made by Yates J in the Federal Court of Australia on 31 December 2020. Whilst that document is properly called an ICO I have been told from the Bar table, without objection, that the offender was heard through his lawyers prior to the making of the ICO. 7. The second clause of the ICO provided: "The day on which the respondent [the offender] may attend Court for the Court to either confirm (with or without variation) the interim control order, or declare the interim control order to be void, or revoke the interim control order, is 22 March 2021 at 9.30 am and the matter be listed for a case management hearing at that date and time." 1. However, the offender never had the opportunity of appearing before the Federal Court to contest or seek to vary the ICO, or to prevent its being made indefinite, because, in the month of January 2021, he breached the ICO, that breach led to his appearing for sentence before me. 2. The ICO is divided into a number of sections. The ICO contains an annexure A which is divided into a number of sections, each of which is named a "Control". "Control 6" is this: "6.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: accessing, acquiring, possessing, recording, copying or storing documents (including documents in electronic form) or electronic media, or attempting to access, acquire, possess, record, copy or store documents (including documents in electronic form) or electronic media, or directing any person to access, acquire, possess, record, copy or store any document (including documents in electronic form) on your behalf, which: a. Instruct, counsel the carrying out or use of, or are supportive of the carrying out of or use of, or in that context describe: i. anti-surveillance or counter surveillance; ii. execution; iii. beheading; iv. suicide attack; v. bombing; vi. terrorist attack; vii. assassination; viii. torture; ix. genocide; or b. Instruct, counsel the use or making of, or are supportive of the use or making of, or in that context describe: i. explosives, explosive devices, initiation systems or firing devices; ii. firearms, ammunition ; c. Relate to any of the following: i. propaganda and promotional material for a 'terrorist organisation' within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); or ii. activities of, or associated with, any 'terrorist organisation' within the meaning of s 102.1(1) of the schedule to the Criminal Code Act 1995 (Cth),…". The matters which I have omitted to quote are the exceptions to the generality of "Control 6" which are not currently relevant. 1. The ICO was personally served on the offender on the date of his release. He signed the front page of a copy of the ICO, and signed every page of the "Notification of an explanation of an Interim Control Order". The offender was then provided with a Samsung Smartphone and the necessary charger and cables, which was a permitted mobile phone for him to use, a Dell Inspiron laptop, which was a permitted computer for his use, details and password for his permitted email, and other paraphernalia relevant to the permitted mobile phone and the permitted computer. 2. There is no doubt that the offender knew of the controls imposed upon him. For example, on 1 January 2021 at about 3.48pm he made a call to a male friend, Umar Uzgur, in which he pointed out that he was on strict conditions, and that on 22 March 2021 he had to go to court to see whether some of the controls would be dropped or modified, and where and for how long they would endure. At 5.15pm on that same day he made a second call to Mr Uzgur, which is set out in the agreed facts, which makes it quite clear that he knew that he was labouring, as far as electronic communication was concerned, under strict controls. 3. On 2 January 2021 at 5.48pm the offender used his permitted mobile phone to call another male friend, Mahmood Swalhaah, during which there was a discussion about the offender's obtaining access to Arabic literature, in particular Islamic literature. Again, the offender pointed out to his friend that he was under very strict and "heavy" restrictions and that he would check to see if he could access the material to which he had been referred by his friend. 4. On 8 January 2021 the offender sent an email to the Australian Federal Police requesting confirmation of whether his ICO prohibited him from using YouTube. The conversation which he had with members of the Australian Federal Police is again set out in the agreed facts. An Australian Federal Police officer advised the offender on 11 January 2021 that the ICO did not prohibit his having access to YouTube, but he was advised that he had to be very careful to ensure that he did comply with controls contained in the ICO.