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R v Bayda; R v Namoa (No 8) [2019] NSWSC 24

sentence — conspiracy to do acts in preparation for a terrorist act or acts offence contrary to s 101.6(1) of Commonwealth Criminal Code — two co-offenders both charged with conspiracy offence following police investigation into text messages and other intercepted communications — antecedents — s 16A(2)(m) — rehabilitation — s 16A(2)(n) — Offender 1 turned to Christianity while isolated in custody — insufficient evidence to be satisfied on balance of probabilities that conversion is meaningful — not necessary that Offender 1 should convert to another religion in order to renounce the fanaticism which was inherent in the offence — Offender 1 gave evidence that they have abandoned Islam altogether because they ceased to believe in Allah’s command of violence — Offender 1 does not consider the religion as a whole can be separated from that concept — no reason to doubt Offender 1 holds these views sincerely — Offender 2 informed correctional staff they had renounced Islam altogether and reverted to Christianity — unnecessary to determine with what degree of sincerity Offender 2 has reverted to Christianity — sentencing judge satisfied Offender 2 no longer accepts command of Allah for Islamic domination by violence — Offender 2’s evidence that belief in jihadism was a childish phase from which they have matured is supported by surrounding circumstances — Offender 2 has not studied Islamic scriptures with sufficient thoroughness or understanding to have acquired from them a deeply embedded intellectual belief in duty of religious warfare — sentencing judge found Offender 2 drawn into jihadism at a superficial level — Offender 2 at 18 was highly susceptible to militant Islamic brainwashing — educational difficulties and anger during school years necessarily led to a degree of isolation compounded by their lack of involvement in the workforce since leaving school — most would balk at a doctrine of purported instruction from a deity to kill people who do not share one’s religious beliefs — Offender 2 lacked the intellectual strength to bring reason and humanity to prevail against this outrageous concept — objective seriousness — s 16A(2)(a) — gravity which Parliament regards this offence indicated by maximum penalty of life imprisonment — several aspects of offence contribute to inherent degree of seriousness — first, all terrorism offences have propensity to cause generalised insecurity in the community — secondly, where ideological cause sought to be advanced is that of Islam, crime involves an intention to intimidate Australia public and/or Commonwealth or State governments, with the objective of destabilising existing constitutional order — thirdly, any individual terrorism offence by which the ideology of Islam is sought to be advanced is a manifestation of what has become a persistent disruption of peace and security in this country — notwithstanding features which make offences of this nature in general very serious, the particular instance before the Court has elements which greatly reduce is objective gravity — the scale of an intended attack is an important consideration in determining the objective seriousness of an offence against ss 11.5(1) and 101.6(1) of Commonwealth Criminal Code — conspiracy had no defined objective and was not developing in intensity of planning or in specification of objective — the duration of conspiracy is relevant to its objective seriousness — where a conspiracy is in existence for only two weeks, where its first objective is abandoned and a replacement is conceived in only the vaguest terms, these factors support an assessment of a relatively low order of seriousness — overall this conspiracy was at the lower end of the wide range of possible gravity of an offence of this type — Offender 1’s criminality was greater because initiative came from them and they exercised a degree of influence over Offender 2 — general deterrence — s 16A(2)(ja) — although the many individual Islamic terrorists who have been dealt with by the courts have not all acted in concert with each other, their separate offences have been unified by the perpetrators’ adherence to a single religious ideology which has the object of breaking down democratic government and replacing it with Islamic rule — this number of convicted Islamic terrorists whose offences span 15 years, all inspired by the same ideology and with the same objective, constitutes a significant phenomenon — this is to be taken into account in fixing a sentence which provides general deterrence — sentencing judge found both offenders genuine in their renunciation of fanatical beliefs reducing the need for general and specific deterrence —assistance to authorities — ss 16A(2)(h) and 16A — Offender 1 provided assistance to authorities and undertaken to cooperate in other proceedings — Offender 1’s cooperation with authorities has already made their conditions of custody more onerous than those of most prisoners and will continue until release — taking all considerations into account sentencing judge reduced by 20% sentence which would otherwise be imposed — 15% attributed to future assistance — Offender 2’s compliance with police request does not warrant specification of a particular discount but sentencing judge treated it as reinforcing expressions of contribution and confirming progress in rehabilitation — sentences imposed — Offender 1’s sentence to commence from date of arrest, the whole period on remand to count — Offender 2’s sentence should be accumulated by 1 month on sentence offender has served for refusing to answer questions in the Australian Crime Commission — Offender 1’s sentence imposed 4 years’ imprisonment with a 3 year non-parole period — per s 105A.23(1) warned that application may be made for continuing detention order — Offender 2’s sentence imposed 3 years’ imprisonment with a 2 year and 10 month non-parole period — warned that application may be made for continuing detention order
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