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Zahab v The Queen [2021] NSWCCA 7

The offender pleaded guilty to 1 count of intentionally providing support or resources to a terrorist organisation, namely Islamic State, that would help the organisation engage directly or indirectly in preparing, planning, assisting in or fostering the doing of a terrorist act, knowing the organisation was a terrorist organisation offence contrary to s 102.7(1) of the Commonwealth Criminal Code and 1 count of failing to comply with an order under s 3LA(2) Crimes Act 1914 contrary to s 3LA(5) Crimes Act 1914 (Cth). Original sentence imposed 9 years’ and 1 month imprisonment, with a 6 year and 10 month non-parole period. Offender appealed on three interrelated basis that the sentencing judge failed to take hardship into account, that the sentencing judge failed to take the conditions of custody into account, and that the onerous conditions of detention at HRMCC will continue into the foreseeable future.  

Hardship to Offender: The relevant comparison is between the condition in which the offender is to serve their sentence compared to that of the general prison population, not between persons convicted of similar offences. When offenders of a particular class are housed in similarly onerous conditions the comparison would be meaningless. There was no direct evidence of the nature of conditions of custody. Offender’s evidence was given in context of describing how they have changed their views concerning IS and said little about the conditions of custody. Evidence from psychologist concluded that offender was coping as well as could be expected with the isolation described.  

Leave to appeal granted. Appeal dismissed.
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