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R v Khayat; R v Khayat (No 14) [2019] NSWSC 1817

sentence — conspiring with each other and others to do acts in preparation for, or planning, a terrorist act (or acts) offence contrary to s 11.5(1) and 101.6(1) of Commonwealth Criminal Code — relevant terrorist acts involved the use of improvised explosive device and/or improvised chemical dispersal device — nature and circumstances of the offence — s 16A(2)(a) — although Co-offender 1 communicated with conspirators overseas about the subject matters of the conspiracy and received instructions from them as to various acts, Co-offender 2 also played important role as English language skills and technological ability were superior to Co-offender 1’s, making Co-offender 2 able to perform important tasks — Co-offender 1 more culpable than Co-offender 2 because involvement, measured by time spent, amount of communication with overseas conspirators and nature and extent of tasks performed was greater — objective seriousness — that no one suffered physical injury or killed as a result of this conspiracy does not make it anything other than extremely serious — the conspiracy plainly envisaged that a large number of people would be killed — scale of intended impact adds significantly to gravity of offence — both offenders played a highly significant role in Australia, taking delivery of the bomb and doing what was asked of them — although offenders did not initiate conspiracy, they carried out instructions to advance its purposes in Australia — objective seriousness of offence very high for each offender — co-operation — s 16A(2)(h) — Co-offender 1’s volunteered details in police interviews were “valuable” — while co-operation motivated by hope they would be treated more leniently as consequence, offender’s self-interested motive does not undermine utility of co-operation — Co-offender 2’s police interview answers were strategic and it became apparent they were dissembling to try to save themselves — no co-operation taken into account in Co-offender 2’s favour apart from co-operation in conduct of the trials — efficient conduct by offenders’ legal representation and substantial admissions enabled Crown to put its case in clear and efficient manner — both offenders entitled to have co-operation during the trial taken into account in their favour — antecedents — s 16A(2)(m) — Co-offender 1’s age of 52 and ill-health are matters to be taken into account since they might die in gaol and if they survive, will have a shorter time after their release  — deportation — both offenders have been convicted and sentenced for life by a military court in Lebanon for this offence — sentencing judge bound by decisions of the Court of Criminal Appeal to the effect that, at least in cases such as the present, the prospect of deportation is irrelevant to the sentencing discretion including for Commonwealth offences — even if it were relevant, not clear what difference it would make to the sentence — taking into account other offences — s 16A(2)(b) — sentencing judge did not accept submission that provisions in Crimes Act which require sentencing judges to take into account other sentences apply to sentences imposed by foreign courts in absentia, particularly where prospect that offender will be deported to jurisdiction where foreign sentence imposed depends on executive act in local jurisdiction — rehabilitation — s 16A(2)(n) — Co-offender 1 will probably be loath to jeopardise benefits of family life and liberty in Australia by entering into conspiracy upon his eventual release — Co-offender 2 has come to know of dire consequences of becoming involved in terrorist crime — each offender has some prospects of rehabilitation — sentence — sentence imposed 40 years’ imprisonment with a 30 year non-parole period for Co-offender 1 and imposed 36 years’ imprisonment with a 27 year non-parole period for Co-offender 2
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