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R v Atai (No. 2) [2018] NSWSC 1797

sentence — one count of aiding, abetting, counselling or procuring commission of offence by another, namely engagement in terrorist act (Count 1) and two counts of intentionally collecting funds for or on behalf of an organisation, Islamic State, knowing organization was a terrorist organisation (Counts 2 and 3) offences contrary to ss 11.2 and 101.1, and s 102.6(1) of Commonwealth Criminal Code respectively — other offence of intentionally being a member of terrorist organisation, Islamic State, knowing that organisation was a terrorist organisation offence contrary to s 102.3(1) of Commonwealth Criminal Code taken into account pursuant to s 16BA — offences related to offenders role in killing of Curtis Cheng by Farhad in 2015 (Count 1) and extended to organisation of funding and support for Islamic State in Syria (Counts 2 and 3) — objective seriousness — Count 1 had degree of planning involved (although plot itself not especially sophisticated) and offender heavily committed to carrying out terrorist act —  planning occupied more than 4 weeks and offender involved regularly throughout that period — offender deeply radicalised and supporter of violent jihad and Islamic State before, during and after commission of Count 1 — offender aware of depth of radicalisation of 15 year old Farhad and acted in way which reinforced co-offender’s indoctrination – took no steps to dissuade Farhad from carrying terrorist act nor intervene with Farhad’s parents or brother for purpose of saving Farhad and stopping terrorist act, knowing full well vulnerability of 15 year old — these factors aggravate gravity of first offence — objective seriousness substantial although it does not reach level of Alou’s offence — offence extremely serious and higher end of scale of seriousness for offence — factors which bear upon objective gravity of Count 2 offences under s 102.6(1) include amount of funds involved, identity of terrorist organisation and conduct of offender — terrorist organisation was Islamic State, a terrorist organisation of the worst type — substantial objective gravity — offender engaged in elaborate steps over lengthy period to facilitate planned transfer of funds to assist Islamic State — displayed expertise in this area which (if put into effect) would provide substantial assistance to terrorist organisation — Count 3 committed against background of offender’s commission of Counts 1 and 2 — served to demonstrate depth of commitment to criminal cause of Islamic State — these aspects magnify offender’s criminality in Count 3 — fact that no prospect in Count 3 that funds would actually reach Islamic State, so that actual harm would not be caused, does not provide assistance to offender on sentence — broad analogy with sentencing for drug supply offences where drugs will not reach public because drugs are supplied to undercover operatives — although fact that funds did not actually reach Islamic State is factor taken into account on sentence, a primary consideration remains that offender intended to make funds available to Islamic State and that it was no act of his that resulted in this not happening — contrition — s 16A(2)(f) — rehabilitation — s 16A(2)(n) — offender stated no longer supported Islamic State — maintains support for Taliban and other organisations and expresses a willingness to travel overseas to act as a foreign fighter — supports Jabhat al-Nusra which is a prescribed terrorist organisation — offender prepared to give evidence and face cross-examination to move some (perhaps small) distance from Islamic State assisted offender to an extent on sentence — offender’s expression of regret for killing of Mr Cheng somewhat lukewarm — at the same time, expression of a fulsome apology would itself have been of doubtful credibility at that point — Courts must exercise caution in assessing genuineness of claims that holder of extremist views is prepared to move away from them, especially when claim made at sentencing hearing — in public interest for persons who have committed terrorist offences to seek to engage in process which has capacity to assist offender to alter thought processes to comply with laws of society — no prior criminal history indicates that offender’s prospects of rehabilitation are tied closely to alteration in belief system — additional letter withdrawing of apology to victim’s family and maintenance of extremist views supportive of violent jihad operates to neutralise almost entirely the factors which operated in offender’s favour — offender not to be punished further for course taken, but deprived of several mitigating factors which would otherwise have operated in favour on sentence — no evidence of contrition or remorse or development of insight into offending and harm done to individuals and Australian community — offender remains attached to  violent jihad which bears upon issues of specific deterrence and protection of community and prospects of rehabilitation — offender’s prospects of rehabilitation not favourable and risk of reoffending significant — guilty plea — s 16A(2)(g) — offender’s pleas entered at very late stage — reason for delay in pleading guilty is irrelevant because, by delaying pleas and entering into plea bargaining, offender obtained forensic advantage which reduced, to an extent, the number and seriousness of charges — reduced utilitarian benefit flowing from late pleas of guilty — allow 10% discount for utilitarian value of offender’s pleas of guilty — parity — in sentencing offender on Count 1, court should keep in mind parity principle by reference to sentence imposed on Alou — objective gravity of Alou’s offence was significantly greater than offender — offender’s recent change of approach moves his position closer to that of Alou in areas of contrition, remorse and prospects of rehabilitation — specific deterrence — s 16A(2)(j) — whilst primary focus must be on Count 1, Court should give greater weight to need for specific deterrence which admitted offence signifies and also to community’s entitlement to extract retribution in form of punishment for admitted offence — offender’s preparedness to move to an extent from his extremist views has given away to clear adherence to those views — specific deterrence must play significant role on sentence — general deterrence — s 16A(2)(ja) — very strong element of general deterrence is required in sentencing for terrorist offences — even more so where terrorist offence caused death and actual harm to community — critical importance that courts send message to persons who are prepared to assist or carry out terrorist acts that such conduct will not be tolerated and will be met by severe punishment — general deterrence significant factor on sentence for Counts 2 and 3 as well — necessary for sentences for these offences to operate as deterrent to others from providing financial support to terrorist organisations such as Islamic State — effect aggregate sentence imposed 38 years’ imprisonment with 28 year and 6 month non-parole period
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