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R v Halis & Ors [2021] VCC 1277

The offenders were sentenced following pleas of guilty to 1 count of conspiring to do acts in preparation for, or planning, a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Commonwealth Criminal Code.

Nature and Circumstances: The impact of inducement from undercover police officers on the offenders was significant and reduced their culpability. Offenders had not advanced very much at all towards carrying out the contemplated terrorist act.  Inducement constitutes an additional, unusual sentencing consideration that qualifies the objective gravity of the offending and indicates leniency. Although the offenders’ adherence to violent jihad was longstanding, there was a real likelihood that, but for the inducement, the offenders would not have committed the offence. The undercover operatives’ engagement with the offenders was over many months. While the operatives did not coerce or instigate the offending, their encouragement and contribution to the offenders’ agreement to attempt to acquire a gun was substantial. To find that the agreement was a consequence of the Bourke St incident was an oversimplification of the offending. The operatives’ interactions generated some of the offenders’ interest in violent jihad and enthusiasm for a potential terrorist act. The offending was serious but by no means the most serious example of the offence as their preparatory conduct was relatively short-lived and limited to obtaining a firearm and training for at least some months to learn how to use that firearm. Offenders embraced an opportunity to acquire a firearm in order to learn how to use it in preparation for, or planning, a terrorist act. That sort of conduct is calculated to sow fear and terror in our community.

Guilty Plea: Offenders’ plea of guilty substantially reduced the sentences imposed as it was not a common occurrence among offenders of this kind, facilitated the course of justice and carried significant utilitarian value of avoiding the expenses of a criminal trial and assisting the community during COVID-19. Although the pleas were entered more than two years after the time of charge, they were made at a reasonably practicable time after relevant documents and evidence were disclosed.

Rehabilitation: It is not unreasonable to expect of those who have held such views, and now claim no longer to adhere to that ideology, to discharge a persuasive burden. Some weight is attached to what amounts to public declaration of rejection of hateful ideology. The weight that can be attached is limited as the declarations and rejections remain untested. Offenders still had guarded reasonable prospects for rehabilitation due to their plea of guilty, public statements disavowing violence to the court, family and friends, doubts expressed during the conspiracy, voluntarily abortion of the conspiracy before police intervention, lack of pledged allegiance to a known terrorist organisation and high level of family support. Offenders’ reasonable prospects carried moderate weight as their conduct was not the most serious example of this type of offence.

Family and Dependents: Ertunc Eriklioglu would face some distress from serving their imprisonment with the knowledge that their wife would raise their two daughters on her own. The effect of imprisonment on the offender’s family could not be taken into account.

Offenders sentenced to 10 years imprisonment with a 7 year and 6 month non-parole period.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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