Supreme Court New South Wales Medium Neutral Citation: R v Hraichie (No. 2) [2019] NSWSC 765 Hearing dates: 21 June 2019 Date of orders: 21 June 2019 Decision date: 21 June 2019 Before: Johnson J Decision: An order is made that the letter from the Offender, which is Annexure A to the affidavit of Senior Assistant Superintendent Poulsen sworn 29 May 2019, is not to be published. That order operates until further order of the Court and applies throughout the Commonwealth of Australia. Catchwords: CRIMINAL LAW - Offender pleaded guilty to serious offences against the person and terrorism offence - Offender writes letter to Court after sentencing hearing but before sentence passed - extremist content of letter - Crown application for non-publication order concerning letter - non-publication order made Legislation Cited: Court Suppression and Non-publication Act 2010 Cases Cited: R v Dirani (No. 32) [2019] NSWSC 275 R v Dirani (No. 33) [2019] NSWSC 288 R v Hraichie (No. 1) [2019] NSWSC 319 Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown) Bourhan Hraichie (Offender) Representation: Counsel: Ms S Callan; Ms D New (Commonwealth Crown) Mr LJ Carr SC (State Crown) Mr B Hraichie (Offender in person) Solicitors: Commonwealth Director of Public Prosecutions (Commonwealth Crown) NSW Director of Public Prosecutions (State Crown) File Number(s): 2016/277456 (Commonwealth); 2016/108074 (State) Publication restriction: --- Judgment 1. JOHNSON J: The Court is undertaking the resumed sentencing hearing with respect to the Offender, Bourhan Hraichie. Mr Hraichie is to be sentenced for a number of offences including serious offences against the person and a terrorism offence. 2. The sentencing hearing with respect to the Offender proceeded on 25 and 26 March 2019. At the conclusion of that hearing, I remanded the Offender for sentence on 26 April 2019. 3. On 18 April 2019, the Court was informed that the Offender had written a letter to the Court. The content of this letter was such that the legal representatives for the Offender considered that they could no longer represent him and they withdrew from the matter. 4. The Commonwealth Crown and the State Crown both indicated that they sought to place the Offender's letter before the Court for the purpose of sentence and to make further submissions with respect to it on sentence. For that purpose, the Court gave further directions and listed the matter for a resumed hearing today. The Offender continues to be unrepresented. 5. The Commonwealth Crown and State Crown have tendered a number of documents. The affidavit of Senior Assistant Superintendent Geoffrey Poulsen sworn 29 May 2019 has been admitted as Exhibit H on sentence. Annexure A to that affidavit is the letter written by the Offender to the Court. Other parts of Mr Poulsen's affidavit explain briefly the circumstances in which the letter came to the attention of correctional authorities on 11 April 2019 and what steps were taken thereafter with it. The affidavit touches, as well, upon aspects of the Offender's current custodial status. 6. In addition, there has been tendered at the sentencing hearing the supplementary submissions filed on behalf of the Commonwealth Crown (Exhibit J) and the State Crown (Exhibit K). 7. At the commencement of the hearing today, lead counsel for the Commonwealth Crown sought an order prohibiting publication of the Offender's letter to the Court. That application is supported by the State Crown. 8. It was submitted, on behalf of the Commonwealth Crown, that the Court had made a non-publication order at the commencement of the Offender's sentencing hearing on 25 March 2019 with respect to certain material, and in particular the audio-visual recording of his interview with police and other material. My reasons for making those orders may be found in R v Hraichie (No. 1) [2019] NSWSC 319. 9. Amongst the concerns raised in that judgment was the capacity for material tendered in terrorism cases to be misused by way of wider publication. I referred (in particular at [15]) to my decision in R v Dirani (No. 32) [2019] NSWSC 275, where I refused an application by the media for access to certain evidence arising from the trial of Mustafa Dirani, one of the persons charged over the tragic events surrounding the murder of Curtis Cheng in October 2015. 10. In a later decision involving Mr Dirani, I gave more detailed reasons for refusing the application by media interests for access to a range of exhibits: R v Dirani (No. 33) [2019] NSWSC 288. As I explained in that judgment, there is a capacity for material (in both electronic and printed form) once released, to be further disseminated electronically and otherwise, in a way which can, in the minds of those engaging in the dissemination, promote violent jihad and future terrorist acts. 11. Considerations of that type lie behind the present application for a non-publication order to be made with respect to the Offender's letter. 12. The written submissions relied upon on behalf of the Commonwealth and State Crowns make reference to parts of the Offender's letter. They do so for the purpose of making submissions that bear on sentence. A non-publication order is not sought with respect to the written submissions of the Commonwealth Crown or the State Crown. 13. It seems to me that the Offender's letter, fairly read, is capable of being treated as a recital supporting violent jihad which (if able to be disseminated in its entirety) is susceptible to misuse. The capacity of persons publishing terrorist propaganda is substantial. Their ability to promote material including quotations (even selective quotations) from documents can operate to urge others to commit terrorist acts. 14. The Offender has pointed out his statement (on page 1 of the letter) that "it is in no way an attempt to propagate or promote extremism". He goes on to say "it is not a political stunt", nor had he "undertaken the task in search for any gratification or praise". That is the perception of the Offender. 15. In considering the present application, however, the Court should have regard to the effect of the letter itself and its contents. The availability to the media of what is said in the written submissions will itself provide some inkling of what is contained in the letter without the actual document being available. Further, and in due course, I will refer to parts of the letter, in sentencing the Offender. That, of course, will form part of a statement made by the Court and not the Offender. 16. The Offender's letter was unsolicited. The mere fact that someone in the Offender's position writes a letter to the Court, unsolicited, and it is tendered in the case should not give rise to an automatic expectation that its contents will be available for general publication. 17. I have in mind the importance of the open justice principle which is critical to the operation of the Court Suppression and Non-publication Act 2010. However, I consider that the reasoning applied by the Court in R v Hraichie (No. 1) has application as well to the Offender's letter. It is part of the responsibility of the Court to consider real concerns as to use that may be made of material such as this for propaganda purposes. The content of the letter, and its relevance to sentence, can be sufficiently identified ultimately in the Court's sentencing reasons. 18. In my view, it is necessary for the purpose of s.8(1)(e) Court Suppression and Non-publication Order Act 2010 that a non-publication order be made with respect to the letter from the Offender, which is annexure A to the affidavit of Senior Assistant Superintendent Poulsen. The non-publication order will extend throughout the Commonwealth of Australia and the order will operate until further order of the Court. 19. Accordingly, I order that the letter from the Offender, which is Annexure A to the affidavit of Senior Assistant Superintendent Poulsen sworn 29 May 2019, not be published. That order operates until further order of the Court and applies throughout the Commonwealth of Australia. ********** 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 June 2019