Site Logo

R v Khaja (No 5) [2018] NSWSC 238

sentence — doing acts in preparation for or planning a terrorist act offence contrary to s 101.6(1) of Commonwealth Criminal Code — separate foreign incursion offence contrary to s 119.4(1) of Commonwealth Criminal Code taken into account under s 16BA(1) — objective seriousness — nature and circumstances of offence — s 16A(2)(a) — scale of intended attack relevant to seriousness — offender hoped to kill in order of 50 people — seriousness not necessarily reduced where planning not at advanced stage — planning advanced in sense that offender fully committed — as individual terrorist offender did not depend on others to commit or coordinate attack — most important aspect of readiness was offender’s determination — aimed complete overthrow Australia’s system of law and government — advancement of plans under secrecy required dedication and discipline — no explanation or qualification of objective circumstances offered which could mitigate seriousness — antecedents —s 16A(2)(m) — youth relevant to determining moral culpability — offender young and impressionable but old enough to know planning something appallingly wrong — culpability assessed as very high — rehabilitation — s 16A(2)(n) — whether offender withdrawn from beliefs motivating terrorist offence central to prospect of rehabilitation — offender’s steps towards rehabilitation cannot be judged without ascertaining where ideas came from and considering evidence that shows offender rejected those sources — need evidence offender has disavowed verses of Quran which provided motivation for religious violence — conspicuously lacking any evidence that offender has disavowed verses or is willing to consider refutation by Islamic scholars or clerics or persuasion by psychologists and counsellors — evidence given by psychologist that offender told them that ISIS allegiance renounced given little weight due to second-hand nature and non-specificity — guilty plea — s 16A(2)(g) — entered at last possible moment before jury empanelled — plea not acknowledgement of wrongdoing or expression of remorse or contrition —due to offender’s explicit contempt for Australian laws and non-Muslim Australians, acknowledgement of wrongdoing and demonstration of contrition only credible if it came from offender directly in oral evidence — plea no more than acceptance that conviction inevitable — on basis of utilitarian value alone sentencing judge allowed reduction of 12 months — specific and general deterrence — ss 16A(2)(j)–(ja) — no realistic prospect offender will abandon religiously based hatred of non-Muslim Australians and country’s democratic institutions, can only proceed upon basis that offender likely to remain danger to community upon release — specific deterrence remains strong consideration although must be doubted offender will be personally deterred — general deterrence and incapacitation strongly influential factors in determination of sentence — prevalence of offences aimed at disruption of public order and government in furtherance of Islamic ideology requires significant weight be given to general deterrence, notwithstanding offender’s youth — other offences — s 16BA — circumstances do not warrant higher penalty for primary terrorism planning offence than if that offence stood alone — when foreign incursion offence taken into account it does not indicate that any greater influence be accorded to any sentencing factor — offender warned that application may be made for continuing detention after sentence pursuant to s 105A.23 of Commonwealth Criminal Code — offender sentenced to 19 years’ imprisonment with 14 year and 3 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.

© 2023 The National Judicial College of Australia (NJCA). Powered by

Privacy Policy|Terms and Conditions