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R v Succarieh; ex parte Director of Public Prosecutions (Cth)[2017] QCA 85

R v Succarieh; ex parte Director of Public Prosecutions (Cth)[2017] QCA 85

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Succarieh; R v Succarieh; Ex parte Commonwealth Director of Public Prosecutions [2017] QCA 85

PARTIES:

In Appeal No 304 of 2016:
R
v
SUCCARIEH, Omar
(applicant)

In Appeal No 332 of 2016:
R
v
SUCCARIEH, Omar
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

FILE NO/S:

CA No 304 of 2016

CA No 332 of 2016

SC No 1276 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

Sentence Appeal by Director of Public Prosecutions (Cth)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 2 November 2016

DELIVERED ON:

12 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2017

JUDGES:

Morrison and McMurdo JJA and Bond J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In CA No 304 of 2016:

Application for leave to appeal against sentence refused.

In CA No 332 of 2016:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to two counts of preparing for incursions into a foreign state (s 7(1)(a) Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)) and two counts of giving money for incursions into a foreign state (s 7(1)(e) Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)) – where the applicant was sentenced to imprisonment for four years for the s 7(1)(a) offences and one of the s 7(1)(e) offences – where the applicant was sentenced to imprisonment for four years and six months on the remaining s 7(1)(e) offence – where the applicant seeks leave to appeal against the sentences on the sole ground that they are manifestly excessive and not of appropriate severity in all of the circumstances – where the learned sentencing judge noted that the maximum penalty for the offences is ten years imprisonment – where the maximum penalty serves as a basis for comparison between the case before the Court and the worst case of offending – where there are few comparable cases that are of assistance – where the sentencing judge considered many factors required to be considered under s 16A of the Crimes Act 1914 (Cth) – whether the sentences are reconcilable with the few comparable cases – whether the sentencing judge erred in her consideration of relevant matters – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY INADEQUATE – where the Commonwealth appellant appeals against the sentences imposed on the grounds that the learned sentencing judge did not properly assess the respondent’s prospects of rehabilitation when exercising the sentencing discretion – where the appellant must demonstrate error on the part of the learned sentencing judge – where the appellant contended that the sentencing judge did not make a finding on whether the respondent showed prospects for rehabilitation – where the sentencing judge identified a number of factual matters that were relevant to rehabilitation – where the appellant alleged that the respondent had failed to acknowledge that his actions were criminal – where it is unclear whether the learned sentencing judge made a positive finding on the issue of rehabilitation – whether the sentencing judge erred in failing to assess prospects for rehabilitation

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY INADEQUATE – where the appellant appeals against the sentences imposed on the grounds that the sentences are manifestly inadequate – where the appellant must demonstrate error on the part of the learned sentencing judge – where the alleged error was that the sentence of four years and six months imprisonment for one of the s 7(1)(e) offences failed to properly comprehend the objective seriousness of the offending – where the matter identified as support for that contention were subject to careful examination by the sentencing judge – whether the sentencing discretion was applied properly – whether the sentence was manifestly inadequate

Crimes Act 1914 (Cth), s 16A

Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 7(1)(a), s 7(1)(e)

CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9, cited

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited

R v Agaky-Wanda, unreported, District Court of New South Wales, Judge Trafford-Walker, 19 March 1991, distinguished

R v Alqudsi [2016] NSWSC 1227, considered

R v Drummond, unreported, District Court of New South Wales, Judge Smyth, 9 May 1988, distinguished

R v El Sabsabi [2016] VSC 740, distinguished

R v Elomar [2016] NSWDC 319, distinguished

R v Hughes [1996] QCA 156, distinguished

R v James, unreported, District Court of Queensland, Judge White, 27 August 1998, distinguished

R v Little, unreported, Judge McGill, DC No 122 of 2013, 26 September 2013, distinguished

R v Maric, unreported, District Court of New South Wales, Judge Thorley, 9 October 1981, distinguished

R v Mohamed [2016] VSC 581, considered

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54, cited

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited

COUNSEL:

S Ryan QC, with R Ivessa, for the applicant/respondent

S M McNaughton QC, with L K Crowley, for the respondent/appellant

SOLICITORS:

Anderson Fredericks Turner for the applicant/respondent

Director of Public Prosecutions (Commonwealth) for the respondent/appellant

  1. MORRISON JA:  On 2 November 2016, Mr Succarieh was sentenced for four offences involving conduct preparatory to the commission of a foreign incursion offence.  Two of the offences were under s 7(1)(a) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (CFIRA), and can be summarised as follows:
    1. count 1 – between 4 January 2014 and 10 March 2014, Mr Succarieh facilitated the arrangements for the safe passage of LB into Syria, with intent that he would engage in hostile activity therein;
    2. count 3 – on 28 February 2014, Mr Succarieh caused money to be provided to LB, in preparation for him entering Syria, with the intent that he would engage in hostile activity.
  2. Two of the offences were contrary to s 7(1)(e) of the CFIRA, and can be summarised in this way:
  1. count 2 – between 7 January 2014 and 15 March 2014, Mr Succarieh gave money to Abraham Succarieh and others associated with him, with the intention of supporting or promoting the commission of an offence against s 6 of the CFIRA, namely those persons engaging in armed hostilities activity in Syria;
  2. count 4 – between 3 June 2014 and 15 July 2014, Mr Succarieh gave money to Abraham Succarieh and others associated with him, for the same purpose as count 2.
  1. All counts carried a maximum penalty of 10 years imprisonment.
  2. On each of counts 1 to 3, Mr Succarieh was sentenced to four years imprisonment.  On count 4, he was sentenced to four years and six months imprisonment.  He was also convicted at the same time of a summary offence,[1] in respect of which he was convicted and no further punishment was imposed.  The summary offence need not be referred to again in these reasons.
  3. Mr Succarieh seeks leave to appeal against his sentence on the sole ground that they are manifestly excessive in all the circumstances and did not, as required by s 16A of the Crimes Act 1914 (Cth), constitute a sentence of “severity appropriate in all the circumstances of the offence”.
  4. The Commonwealth Director of Public Prosecutions also appeals against the sentences on two grounds, the first being that the learned sentencing judge failed to properly assess Mr Succarieh’s prospects of rehabilitation, and the second, that the sentences (whether individually or in aggregate) are manifestly inadequate.

Particulars of the offences

Count 1

  1. Between 4 January 2014 and 10 March 2014, Mr Succarieh engaged in a series of telephone calls with his brother, Abraham.  At that time Abraham was in Syria.  In the course of those conversations Mr Succarieh and Abraham discussed arrangements for an Australian Muslim man, LB, to travel from Australia to a location close to the Syrian border, where he would enter into, and be received in Syria by Abraham or members of his group, in order to join with them to become a participant in armed hostilities in Syria.

Count 2

  1. Between 7 January 2014 and 15 March 2014, Mr Succarieh provided approximately US$18,700 to his brother Abraham, with the intention that it be distributed between Abraham and three other Australians who Mr Succarieh knew, or believed, to be engaging in armed hostilities in Syria, in company with Abraham.  Mr Succarieh provided the money with the intention of aiding those persons to engage in, or continue to engage in, armed hostilities in Syria.

Count 3

  1. On about 28 February 2014, Mr Succarieh assisted LB to obtain or retrieve the sum of AUD$7,700 from a particular person.  Mr Succarieh intended that the obtaining of those funds and the provision of them to LB would assist LB to travel to, and enter, Syria to engage in armed hostilities in Syria.

Count 4

  1. Between 3 June 2014 and 15 July 2014, Mr Succarieh provided approximately US$25,000 to his brother Abraham, with the intention that it be distributed between Abraham and the three other Australians.  Mr Succarieh provided the money with the intention of aiding those persons to engage in, or continue to engage in, armed hostilities in Syria.

Background to the offences

  1. Mr Succarieh was born on 15 February 1983 and is an Australian-born citizen of Lebanese descent.  He had two younger brothers, Abraham and Ahmed.  In 2013, Ahmed left Australia.  He has not returned and authorities believe he died in a suicide attack in Syria on 11 September 2013.  On 10 September 2013, Abraham departed Australia and eventually arrived in Syria.  There he supported opposition forces in the Syrian conflict, particularly militant Islamic groups seeking to overthrow the Assad regime and establish a state in Syria governed by Islamic law.
  2. Following the 11 September suicide attack in Syria, Australian Federal Police (AFP) commenced an investigation, in which Mr Succarieh was a person of interest.  Telecommunication intercepts revealed that Mr Succarieh maintained regular telephone contact with Abraham, and other persons in Syria and Lebanon.  Investigations also revealed that Mr Succarieh had one mobile telephone that he used overtly to conduct his normal day-to-day life, and a second mobile telephone that he used covertly to communicate with Abraham and other associates overseas.  The covert mobile telephone was held in a false name.
  3. Mr Succarieh used his covert telephone to contact a particular Syrian telephone number and communicate with Abraham.  During the period of surveillance, Mr Succarieh made numerous telephone calls to various Syrian telephone numbers and spoke to a number of other males with whom he seemed to be familiar, and who had Australian accents.
  4. During the communications with Abraham, they discussed and organised the arrangements that form the basis for the offences in counts 1, 2 and 4.  Each of the offences committed by Mr Succarieh occurred in the context of the current and ongoing Syrian civil war and conflict.  Through his support for Abraham and Abraham’s associates in Syria, Mr Succarieh was able to vicariously “participate” in the Syrian conflict.
  5. Mr Succarieh supported the overthrow of the Assad regime through armed hostilities and the establishment, in its place, of a state governed by Islamic law.  He believed that he and other Muslims, had a religious duty to fight against those who sought to oppress Muslims, and that provided part of the motivation for his offending.  At the time he committed the offences, Mr Succarieh knew, or believed, that his brother Abraham and the other Australians with him in Syria, were associating with a prescribed terrorist organisation, Jabhat Al-Nusra (JAN), or other Islamic opposition groups, and that those groups shared his religious ideology and views, and his support for the establishment of a state governed by Islamic law.
  6. Mr Succarieh was also aware that Abraham and the other Australians were living in an area of military activity and would engage in armed patrols, and, if necessary, would engage in conflict with Assad regime forces.

Count 2

  1. In late 2013 to 19 March 2014, Mr Succarieh and Abraham discussed and made arrangements for the sum of US$18,700 to be provided by Mr Succarieh.  Numerous intercepted telecommunications on Mr Succarieh’s covert telephone revealed he and his brother conducting conversations in guarded or cryptic terms, in which they discussed the need for money, the state of the conflict in Syria, and the nature and identity of some of the opposition groups involved in that conflict, including JAN and the Islamic State in Iraq and the Levant (ISIL).  Mr Succarieh and Abraham often used code words to avoid identifying persons, places and subject matter, so that they could disguise the true meaning of their discussions.
  2. Intercepted phone conversations reveal the nature of some of the calls:
  1. on 4 November 2013, Abraham told Mr Succarieh that he had run out of money: “Yeah, I’ve literally run out of cash but other than that all good praise god”.  Mr Succarieh replied: “Okay, well is there a way to get it … that to you or what”.
  2. on 20 December 2013, Abraham told Mr Succarieh that “cash is extremely low for me and the boys not just me … me and Jihad specifically”.  Mr Succarieh told Abraham that he had “stuff” ready for him and that it is “just for youse I’m saying”.  Abraham later told Mr Succarieh that “… every day that goes by is another day you know we are digging ourselves deeper … we are all in serious need”, and that “I’ve literally lived off 100, about 100 bucks in the past two months”.
  3. on 5 January 2014, Abraham told Mr Succarieh that “I haven’t had a dollar for two months”.
  4. throughout several of the intercepted telephone conversations Mr Succarieh attempted to disguise his discussions about the money by referring to it as “sweets” and by referring to the amount of the money by stating that the weight of the “sweets” was “18 kilos 700 grams” (ie. $18,700).
  1. As a result of the conversations, Mr Succarieh agreed to provide financial support and assistance to Abraham and the other Australians associated with him in Syria.  To that end Mr Succarieh undertook and directed a series of arrangements, through a number of people and over a period of time, to provide the money to Abraham.
  2. The arrangements to provide the money commenced in Australia through a Brisbane-based Lebanese-Australian man.  Mr Succarieh telephoned and met with that man to obtain his assistance in making money available on Mr Succarieh’s behalf, through a Lebanese bank account operated by the man.  Once the money was available in Lebanon, Mr Succarieh then arranged for the money to be converted into US dollars and passed on to his brother-in-law.  Mr Succarieh then directed his brother-in-law to keep the money secretly and securely until such time that Mr Succarieh was able to make arrangements for its collection.  Through a series of further cryptic and coded telephone conversations between Mr Succarieh and his brother-in-law on the one hand, and Mr Succarieh and Abraham on the other, Mr Succarieh coordinated the arrangements for the money to be collected from the brother-in-law by, or on behalf of, Abraham.
  3. After several months of discussions and arrangements Abraham advised Mr Succarieh that the money had arrived.  In that conversation Mr Succarieh and Abraham had this exchange:

“SUCCARIEH:  What happened to that other thing, then?

ABRAHAM:  Praise to god, it arrived yesterday.

SUCCARIEH:  And was it … the right amount?

ABRAHAM:  Yeah tell them contributors, god reward them, it’s gonna go a long way.

SUCCARIEH:  God willing there’s more coming … we’re gonna try to get some …

ABRAHAM:  Tell ‘em it’s gonna be going quarters … four people that you know, it’s me, Struggle, Saiful and Bilal, that’s four.”[2]

  1. Mr Succarieh told Abraham to use it as a “group thing, together”.
  2. In a further conversation, Mr Succarieh spoke with a person who was part of Abraham’s group.  He also confirmed that the money had arrived and had been distributed.  During the conversation the other man said: “the, the, that arrived, praise Allah, the, everyone’s got their Haqq, praise Allah”.  Mr Succarieh replied: “Praise Allah, bro.  God willing, man … god willing, brother.  Allah, glory to be to him, bless you for everything that you do, man.  And ah, if youse are fine … you know, easier avenues, god willing, I wanna be, I wanna try to, you know, ah send some more, god willing”.

Counts 1 and 3

  1. With respect to count 1, Mr Succarieh facilitated the arrangements for the safe passage of LB into Syria, where he intended to engage in armed hostilities as a “foreign fighter”.  With respect to count 3, Mr Succarieh caused money to be provided to LB by assisting him to recover possession of money intended to fund his trip to Syria, in preparation for him to engage in armed hostilities.  Each of these offences occurred at a time when Mr Succarieh was aware that his brother Abraham, and a small group of other Australians, were already in Syria and participating in the conflict.
  2. Through a series of cryptic and coded telephone conversations with Abraham commencing in late 2013, and on Mr Succarieh’s covert telephone, the prospect of other Australian Muslims travelling to Syria to join with those already there was discussed.
  3. Around this time, Mr Succarieh became aware that LB wished to travel to Syria to support the opposition to the Assad regime.  As a consequence, he and Abraham discussed arrangements for LB to join the group of fellow Australian Muslims, by travelling to a border-crossing area adjacent to Syria where he could then be met and received by Abraham (or those associated with him) and taken safely across the Syrian border.  During the initial conversations, Abraham advised Mr Succarieh to tell “old mate” to bring suitable clothing and footwear for the Syrian conditions, and the pair discussed the means by which contact would be made with Abraham once LB arrived at the border-crossing point.
  4. In preparation for his intended travel to Syria, LB secured funds which he arranged to be deposited in a bank account of an acquaintance, Mr Vaevae.  Under that arrangement Vaevae was to receive $100 for receiving a deposit of about $7,705 from a third party into his account, and subsequently withdrawing the money and providing it to LB.  The money was deposited into Vaevae’s account by an unidentified person.  Although the money was received into his bank account, Vaevae did not hand the money over to LB as agreed.  Instead he withdrew the money from his account.  Once LB discovered the money had been received but not handed over, he contacted Vaevae and requested the money.  Vaevae did not comply, and LB then sought the assistance of Mr Succarieh and others to recover the money.
  5. By arrangement with LB, Mr Succarieh drove to the vicinity of Vaevae’s home.  He remained in the vicinity, meeting with three other males “staking out” those premises.  Later that day Mr Succarieh had a telephone conversation with Vaevae during which Mr Succarieh spoke in an aggressive tone, saying:

“You’ve taken my money.

You see that red shirt[3] that you are wearing today … that red shirt is going be changed with something else if you don’t give me my money soon.  It’s going to be a different sort of red.

I know you’ve taken my money, you with two withdrawals, you went to your Commonwealth fricken Bank, you’ve taken two withdrawals out of your account.  Where’s my money?

But I know everything about you, I know where you live, I know where your family is, I know where your friends are.  I know everything about you.  Where’s my money.  You think you’re gunna take someone’s money and nothing’s going to happen out of it.

Listen you dumb shit.  Listen, listen, I know you’ve already taken money out.  I already know this.  You took two withdrawals, in two days, last Friday, don’t play stupid now.

Listen, you’ve … really stuffed up this time, man.  You think that because LB is the one that told you to put it into the account, that it’s his money.”

  1. At that point, an unidentified man then continued the conversation with Vaevae, on Mr Succarieh’s telephone.  He said:

“You fucken stole the money, I’m gunna fucken torch your house, I’m gunna fucken torch your brother, your fucken sister-in-law, everyone in the fucken house, I’m gunna fucken torch you all.  I want my fucken money and now, do you understand?

I swear, I’m gunna fucken cut your throat, I’m gunna fucken put you on fire, I want my fucken money.”

  1. Subsequently Mr Succarieh and two other men attended at Vaevae’s house.  They spoke to Vaevae’s mother, with one of the other men doing most of the talking.  They asked where Vaevae said that money had been put into LB’s account, and asked for the money.
  2. The next day Mr Succarieh was involved in telephone calls with Vaevae’s parents, with one of the other men who visited the house, and with LB.  Through these conversations, arrangements were made for Mr Succarieh to collect the money from Vaevae’s parents.  These arrangements required a number of telephone calls and Mr Succarieh pretending to be someone other than himself.  Later that afternoon, Mr Succarieh got a text message from LB revealing a receipt, with an image of the bank deposit for the amount of money.  Later again, Mr Succarieh, LB and another man attended the residence of Vaevae’s parents where they were given AUD$7,700.  That money was given back to LB, who used it to fund his travel arrangements to Syria.
  3. Some days later Mr Succarieh had a telephone conversation with LB in which they discussed the purchase of a universal solar-powered phone charger, and the type of clothing most suitable to wear while LB was in Syria.  Mr Succarieh suggested that LB buy a pair of “good boots”, and later suggested that he should “travel light man and buy your stuff over there”.  He reiterated that “a good pair of shoes would be good, sufficient”.
  4. Later the same day Mr Succarieh had a telephone conversation with his brother Abraham and three other unidentified men.  That conversation involved them speaking in cryptic or coded terms about the arrangements for LB to joint Abraham and the other Australians in Syria.  The conversation was:

“SUCCARIEH:  I just wanted to ask you, God knows best, there might be … what’s it called is everything would everything be alright for any company? … Is is all good for some company?

ABRAHAM:  Sooner rather than later, sooner rather than later … Yeah don’t muck around.

SUCCARIEH:  Is it pretty full on at the moment?

ABRAHAM:  Yeah we got something happening soon.”

  1. Two days later LB purchased an airfare to travel to Kosovo, via Dubai.  He told the travel agency that he was travelling to see family and wanted to travel only on an Arab airline.  He also said that he was intending to travel from Kosovo to Istanbul and enquired about quotes for flight and train tickets for that journey.  He declined the option of a stopover in Turkey, even though that was a cheaper option.  LB also said he had been planning the trip for a few months but had waited until now to purchase the airfare.  He paid about AUD$2,600 in cash.
  2. Later the same day Mr Succarieh spoke with LB by telephone.  The conversation was:

“LB:  Do you reckon it’s a good idea when I go overseas to like, ah, wear like dress pants and a dress shirt and like leather shoes?

SUCCARIEH:  I probably no point, I mean … I understand what you’re saying … I don’t think it’ll make a difference bro … it’s not going to change anything.

SUCCARIEH:  You um er booked your ticket yet or not?”,

to which LB replied that he had booked his ticket “today” for “the 9th”.

  1. Later the same day Mr Succarieh had a further telephone conversation with Abraham, using the covert telephone.  They discussed arrangements for LB to make contact with Abraham once he had arrived at the border crossing area.  The conversation was:

“SUCCARIEH:  … anyway so basically they are just going to call you, huh?

ABRAHAM:  Yeah, they’ll talk to me.

SUCCARIEH:  Alright so the normal, the same way or a different way? … like the area same area or different area?

ABRAHAM:  Yeah same way, just get him to contact me.”

  1. Two days later LB’s passport was cancelled.  On 9 March he attended Brisbane International Airport to board his flight to Dubai, but was intercepted by Customs officers.  Five days later Mr Succarieh had a telephone conversation with Abraham, using the covert phone.  In the course of that conversation Mr Succarieh told Abraham, in guarded terms, that LB was not coming as planned.  The conversation was:

“SUCCARIEH:  … they’re smashing everyone over here at the moment bro … everyone getting their whatchacallits taken off ‘em … there’s two just recently … one of them was, he’s literally … wanted to come, … the other day … they pulled him up at the actual airport and gave him a notification and then took it off him.

ABRAHAM:  … the visit is obviously cancelled hey?

SUCCARIEH:  Yeah, yeah, they literally … one of them one of them fricken probably just gossip anyway, but the other one was full on, bro, but they literally smashed him a new one … he got smashed very good man … literally in the airport man”.

Count 4

  1. This count concerned the second amount, approximately US$25,000, provided by Mr Succarieh to Abraham.
  2. Over the period from 3 June to 15 July 2014, Mr Succarieh and Abraham had numerous conversations in guarded or cryptic terms, discussing the need for money, the state of the conflict in Syria, and the nature and identity of some of the opposition groups involved in the conflict.  Throughout that period Mr Succarieh referred to the money using the code word “sweets”.  He referred to the expected amount of money to be sent using the same code, and stating:

“… the what’s it called, the sweets, … you know went around … roughly around the 30 kilo, sort of sweets mark”.

  1. As a result of those conversations, Mr Succarieh agreed to provide financial support and assistance to Abraham and the other Australians present and associated with him in Syria.  He undertook and directed a series of arrangements through various people including his mother and his brother-in-law, in order to provide the money to Abraham.
  2. The physical arrangements for getting the money to Abraham started in Australia on 2 June 2014.  Mr Succarieh provided an amount of cash to a friend, Masri.  The following day Masri and his family departed Australia for Lebanon.  Before departing, Masri declared that he was carrying AUD$82,000 in cash out of the country.  Some of that was money that Mr Succarieh had given to him, to be provided to Abraham.
  3. Once Masri was in Lebanon, he and Mr Succarieh spoke a number of times, making arrangements for Masri to meet Mr Succarieh’s brother-in-law, and to hand over the cash destined for Abraham.  At about the same time, Mr Succarieh engaged in a further series of cryptic and guarded telephone conversations with his wife, his mother and Abraham, to coordinate the handover of the money.
  4. By 30 June 2014, the money had been provided to an intermediary (Fatima Succarieh), but Abraham was unable to make the necessary arrangements to travel to Lebanon (either by himself or by anyone on his behalf), to collect the money, because of hostilities in the area.  Instead he made arrangements for it to be collected.
  5. By 11 July 2014, Abraham had received the money.  On that day he and Mr Succarieh had a coded telephone conversation, with Mr Succarieh using his covert telephone.  The conversation included:

“ABRAHAM:  Ah, just a quick question about the … the sweets … can you tell me, well, who, who it was gathered for, or who’s, who’s it intended for it to go to?

SUCCARIEH:  Same as last time, but there is … there’s 500 of that, that’s meant to be … for … the celebration.

ABRAHAM:  What about of the rest?

SUCCARIEH:  Yeah, normal, like last time … normal.

ABRAHAM:  I know with last time, was it, did youse, was it intended for … our little group of Aussies or … but should it be straight out on, like a donation, or should we be giving it between the four Aussies, like us, yeah, … small group of brothers and we deal with it as we see fit?

SUCCARIEH:  Yeah, as you see fit, like last time.  This, this is for, for youse … for spending, and whatever [indistinct] whatever youse want with it.

ABRAHAM:  … but the ones that, that made the sweets, are they, are they clear …?

SUCCARIEH:  The sweets is for, from the people that we know, as spending … the sweets it’s for the people we know to eat.”

  1. In the course of the AFP investigation, Mr Succarieh was spoken to by AFP officers, warning him against the commission of Commonwealth criminal offences, similar in nature to those in counts 1 to 4.  Notably, on 13 August 2013, well before any of the current offences, Mr Succarieh was warned about the existence of the CFIRA offences.  It was accepted that the evidence demonstrated that Mr Succarieh was aware of the likelihood that he was under surveillance and that his usual telephone may be being monitored.  He therefore conducted his conversations with Abraham using his covert telephone.

Approach of the learned sentencing judge

  1. The learned sentencing judge took some care in setting out the facts of the offences to make clear the basis upon which the sentence was being imposed.  Those facts were largely taken from the agreed Schedule of Facts,[4] but her Honour added observations from time-to-time.  For example, her Honour found that the explanation given to Mr Succarieh by the AFP on 11 August 2013,[5] namely that going to Syria to fight or providing money to assist in that conflict was a crime unless it was for a charity or humanitarian reasons, was given in “no uncertain terms”.[6]  Her Honour found that it was clear that Mr Succarieh knew then that the actions which he later engaged in were against the law.[7]
  2. The learned sentencing judge then referred to some of the defence submissions about matters that were the subject of the agreed facts, following which her Honour made the following findings, taking into account those submissions.  First, there was no suggestion that Mr Succarieh had ever supported, encouraged or considered any terrorist activity in Australia.  Secondly, Mr Succarieh’s motivation for the offending was multifactorial, one of the reasons being because Abraham and the other Australians had no money and were struggling to live.  Thirdly, Mr Succarieh felt very connected to the civil war in Syria, particularly because of what he perceived as the justice of the overthrow of the Assad regime.[8]
  3. That being said, the learned sentencing judge observed that the CFIRA was directed to “all conflicts, regardless of their origin and the virtues and vices of the participant”.  Further, her Honour found that Mr Succarieh knew that his brother and the other Australians with him were ideologically attracted to the Islamist groups, and Mr Succarieh, himself, supported the ultimate establishment of a state in Syria governed by Islamic law.  Further, Mr Succarieh felt that he had been unfairly targeted by authorities following a truck bombing in Syria thought to have been carried out by Abraham.  Her Honour observed:

“But, of course, as the thorough investigation by the police show, their targeting of you was well warranted”.[9]

  1. The learned sentencing judge then made the following findings in respect to the payment of monies to Abraham and the others:

“In relation to the payment of money to your brother, the request came from your brother and it was required, as was submitted, not for some specific purpose but because he and other Australians had little or no money.  But in terms of their activities, you accept, by your plea of guilty, that you believe that they were engaged in armed hostilities.  As your counsel has submitted in his written submissions, the schedule of facts that has been tendered now puts the position on the basis that Abraham and the other Australians were living in an area of conflict, would conduct armed patrols and would, if necessary, engage in armed conflict with Assad regime forces.  This is in contrast to earlier descriptions of them as an organised unit of foreign fighters.”[10]

  1. Her Honour also held that, because of Mr Succarieh’s intention that LB would meet with Abraham and the other Australians, his appreciation of what the group of Australians was, and was not, was also relevant to an assessment of his conduct in relation to LB.
  2. The learned sentencing judge noted the maximum penalties for the offences under the CFIRA, namely 10 years imprisonment, and observed that the maximum penalty “serves as a yardstick and as a basis for comparison between the case before the court and the worst case”.  Noting that the maximum penalty indicated that those offences were serious, her Honour said that the Court had to have regard to the maximum penalty and, amongst other things, should determine the degree by which Mr Succarieh’s conduct offended against the legislative objects of the Act.[11]
  3. The learned sentencing judge set out matters advanced by the prosecution and defence on the issue of the sentencing principles and considerations to be applied.[12]
  4. The learned sentencing judge accepted that Mr Succarieh had not been charged under the 2014 provisions which repealed the CFIRA and provided for replacement offences in the Criminal Code (Cth), with increased penalties.  Having not been charged under those provisions, her Honour concluded it would be wrong in law to take into account that there were now increased penalties under the new legislative regime.[13]
  5. As to comparable cases, the learned sentencing judge noted that there were few prosecutions for offences under the CFIRA and therefore only a small number of sentences to consider.  As to those past sentencing decisions, her Honour said:

“Unfortunately, contemporary circumstances, of course, have changed, and some of the older sentences have such different circumstances as to be of little relevance to any sentence to be imposed upon you for these offences.

I agree with the prosecution submission that of more assistance and significance is the small number of recent prosecutions and resulting sentences for offences against s 7(1) of the Act, committed in a contemporary context similar to that involved in your case.  Those sentences are the cases of R v Elomar (unreported decision of Judge Hock on 1 July 2016), R v Alqudsi [2016] NSWSC 1227, and R v Mohamed [2016] VSC 581.”[14]

  1. However, her Honour rejected a submission by the prosecution that guidance as to the relevant factors in sentencing could be gained from a consideration of the principles applying to terrorism offences.  That said, her Honour recognised that there were factors applicable to terrorism offences such as the need for punishment, deterrence, denunciation and protection of the community, that were generally applicable, and applicable to Mr Succarieh’s case.
  2. The learned sentencing judge turned to considerations arising under s 16A of the Crimes Act.  The first was the nature and circumstances of the offence which, as her Honour observed, she had dealt with in great detail.  The following factors were then referred to:
  1. the offences were committed by Mr Succarieh out of a desire to assist opposition forces to oust the Assad regime and promote the establishment of an Islamic caliphate within the region; what Mr Succarieh did was in pursuit of those ends;
  2. a total of about US$44,000 was provided to Abraham and the group of other Australian men who were with him, to support and promote their activities;
  3. concurrent sentences were called for, given that the offences occurred in combination, were of a similar character, were within several months of each other, and ceased when he was arrested;
  4. as a consequence, it was appropriate to impose a period of imprisonment on the most serious offence, count 4, which reflected the totality of the offending behaviour, and lesser concurrent sentences on the other offences;
  5. the conduct was protracted and planned; over a long period (about seven months) Mr Succarieh coordinated and organised the assistance provided to Abraham and the fellow Australians, and provided moral and religious support;
  6. steps were taken to hide the movement of money out of the country, and the true purpose for the conduct;
  7. part of the motivation for the offending was to support Abraham, who was needy at the time;
  8. however, in all the circumstances, the objective seriousness of the four offences, seen together, was high;
  9. the offences were committed as part of a continuing course of conduct, and all were motivated by the same religious and ideological mindset and world view; at the time Mr Succarieh’s religious beliefs were fundamentalist in nature and accorded with the Islamic views of JAN and similar militant Islamic groups;
  10. the plea of guilty was timely; it was accepted that it had facilitated the course of justice and as a mitigating factor;
  11. Mr Succarieh had been a good prisoner and not given the authorities any trouble;
  12. the learned sentencing judge did not entirely accept that the offences were committed out of naivety because he had been informed by the police, before the offences were committed, that to do so was against the law;
  13. Mr Succarieh had expressed remorse, and that would be taken into account;
  14. Mr Succarieh had not cooperated in the investigation of the offence or other offences;
  15. specific deterrence had to be taken into account, as well as punishment, denunciation and protection of the Australian community;
  16. such delay as had occurred between the offences and the sentencing did not have much relevance beyond having afforded Mr Succarieh time in custody to reflect;
  17. he had been in custody from 10 September 2014, for a period of 784 days, which was “quite a long time”; and
  18. when first in custody Mr Succarieh was kept in solitary confinement for 90 days taking into account the psychiatric report as to the impact of that confinement on Mr Succarieh, the learned sentencing judge took into account that some of the time in pre-sentence custody was spent in much more difficult conditions.

Submissions on Mr Succarieh’s challenge to the sentence

  1. Senior counsel for Mr Succarieh advanced a number of points in support of the contention that the sentence imposed was manifestly excessive.  Essentially, the contention was that almost all of the authorities from 1987 were relevant to determining the appropriate sentence, primarily because the offenders in those cases were driven by comparable motivations to offend.  The amendments to the CFIRA in 1987 and 2004,[15] demonstrated that the earlier cases were still relevant.  The learned sentencing judge ought to have placed greater weight on R v Hughes.[16]  There were distinguishing features of Mr Succarieh’s case including: his financial assistance was to his brother, at his brother’s request, for money to live upon while he and his associates were in Syria; no financial assistance was given to anyone else; the financial assistance was only on two occasions; he did not recruit LB, and the assistance provided to him was limited; his offending was limited to those four offences; he had made a timely plea of guilty and spent 90 days in harsh prison conditions; he had a supportive family, positive personality traits and a good work ethic, and had established contact with appropriate members of the Muslim community, with a view to making amends.
  2. It was contended that on a review of all of the cases, a sentence of no more than three years imprisonment was appropriate, with immediate release on recognizance, was the appropriate penalty.
  3. For the Crown, it was contended that when all relevant circumstances were taken into account, the sentence could not be said to fall outside the range of those available.  Past sentence decisions were of limited assistance, as they were factually different and did not establish that any of those sentences were in a correct range, or at the upper or lower limits of a range.  It was contended that consistency in the sentencing of federal offenders was to be achieved by application of relevant principles, and not numerical equivalents of particular cases.[17]  In particular, Hughes did not establish that Mr Succarieh’s sentence was manifestly excessive.  The examination of past sentences in this case showed that they were of limited utility, and at best, represented particular aspects on the spectrum of seriousness.[18]
  4. It was contended that Mr Succarieh’s offending was serious, involving substantial breaches of the CFIRA, and committed over a lengthy period of time.  Whilst the motivation was multifactorial, all the offences were committed with the same intention, namely to provide support to another person or persons engaged in hostile activities in Syria.  The funding provided was not limited to the money required for them to live on, and was provided in circumstances knowing it was a criminal offence to do so.  Mr Succarieh’s primary motivation was by reason of fundamentalist religious and ideological beliefs, which are not beliefs shared by the Australian or wider Muslim community.  The offending involved significant planning, organisation and effort, and was engaged in deliberately and enthusiastically, using covert means.

Discussion

Utility of past sentences under CFIRA

  1. At the sentencing hearing, the prosecution pointed out that there had been few prosecutions for offences against the CFIRA and therefore only a small number of sentences could be identified.  The prosecution attached a schedule of all known past sentence decisions for CFIRA offences.  The prosecution submitted that the earlier decisions “concerned a range of different offence provisions under the CFIRA and a variety of factual circumstances which were manifestly different to the circumstances of the offences committed by [Mr Succarieh]”, and accordingly, only limited guidance could be derived from them.
  2. That submission was accepted by the learned sentencing judge, who held that the small number of recent prosecutions and sentences for offences against s 7(1) of CFIRA were “of more assistance and significance”.[19]
  3. The prosecution’s submission and the learned sentencing judge’s acceptance of it were challenged by senior counsel for Mr Succarieh before this Court.  In addition to the submissions referred to above, reliance was placed on: the fact that original terrorism charges against Mr Succarieh had been discontinued, and there was no suggestion of any terrorism risk to the Australian community, the focus being on the Assad regime only; and the utility of earlier decisions was shown by the 2004 amendments to the CFIRA and the fact that the Act was not concerned with the rightness or wrongness of one side or another in a foreign conflict.
  4. Included with the prosecution’s submissions at sentencing, was a schedule of past sentences imposed for offences under the CFIRA.  For present purposes there is no need to fully analyse them, but rather points of distinction can be noted:
  1. R v Maric:[20] the offending conduct was training others in military activities in a camp where weaponry was present; the offence was on the basis that Maric was training others to commit an offence against s 6, by going and participating in hostilities in Yugoslavia; the sentence was four years imprisonment;
  2. R v Drummond:[21] the offender entered into negotiations for a proposed reconnaissance trip, and there were preparatory acts towards that; he was to be paid a substantial sum, but the money did not become available; the offending was described as having a certain “Walter Mitty quality to it”; the sentence was 18 months imprisonment;
  3. R v Agaky-Wanda:[22] was a District Court decision in Queensland in 1991; the offender was a West Papuan who entered Australia via Thursday Island seeking refugee status; he purchased 10 rifles and 2000 rounds of ammunition, stockpiling them for the purpose of engaging in a hostile activity in Indonesia; the intended effort was to support the Free Papua movement in their struggle against Indonesia; the scale of the operation was described as being minor, and it was “pathetically put together and it was never going to succeed”; the sentence was nine months imprisonment, to be released after three months;
  4. R v James:[23] involved two sentences imposed[24]; the conduct was the accumulation or attempted accumulation of weapons, found by the police on searching the offenders’ house, where 130 rounds and two replica weapons were found, in addition to money which was intended for the purchase of further weapons; the purpose was to assist members of the Free Papua movement; in each case the sentence was five months imprisonment; and
  5. R v Little:[25] the 46 year old offender was on a disability support pension, and attended a five day course in the Ukraine in counter-terrorism; the purpose was possibly to assist the campaign for West Papuan independence; the finding was that the offender had no formal role or position in the organisation campaigning for independence, and he was unlikely to be any threat to the Indonesian Army; there was a suggestion that his attendance at the course may have been an effort to impress the organisation so that he could be accepted; sentence was limited to the 218 days already served in prison.
  1. In light of the emphasis placed on Hughes a closer examination is warranted.  Hughes was a 61 year old businessman who pleaded guilty to s 7(1)(a) offences.  Over a three month period in 1994, he negotiated with a police informant for the supply of arms to a political group in South Cameroon.  In doing so he was acting on behalf of persons who wished to stage a coup to oust the country’s hierarchy by means of a land-based civil war.  The negotiations concerned the acquisition of 100 pistols with silencers, 100 remote control explosives, 100 machine guns with ammunition, and 2000 rifles.  This Court described the circumstances as “a very serious offence”.  A figure in the range of AUD$1.5m was mentioned as the price for the arms, and it appeared that the offender was to receive a commission on completion of the deal.  Having considered the circumstances, the age of the offender and his state of health, a District Court judge imposed a sentence of two and a half years imprisonment.
  2. This Court noted that it had no appellate court decisions by way of comparable cases.  The earlier District Court or County Court decisions were not explored in the reasons of the Court.  It also noted that none of the previous decisions involved negotiations for the acquisition of major weaponry.  The Court also referred to the fact that the conviction would have some adverse effect on the offender’s international business activities.  More importantly, the Court noted that the negotiations “never came to fruition because the negotiations had been monitored by authorities at all material times”.[26]  The sentence was described as being “towards the upper end of the relevant range”, but that must be understood as referring simply to the sentences imposed in the previous District Court or County Court decisions.
  3. In my view, there are several distinguishing features which have the result that Hughes does not compel the view that Mr Succarieh’s sentence is manifestly excessive.  First, the offender was considerably older and there were aspects of his health that evidently affected the sentence.  Secondly, it was accepted that the conviction would have some adverse impact upon his business.  Thirdly, and most importantly, the conduct in that case was never going to come to fruition in the sense of the actual acquisition of what was being sought, or its provision for use in the foreign state.  The negotiations in their entirety were with a police informant.  That is not the case here, where all of Mr Succarieh’s conduct achieved its purpose, in terms of the direct provisions of aid to those engaged in hostile activities in Syria, and facilitating LB’s preparation to travel to Syria.
  4. Of the earlier decisions, two (Maric and Drummond) are quite dated, being over or close to 30 years old.  That alone would make one circumspect about their current utility.  Of those, the circumstances in Drummond were far removed from Mr Succarieh’s case, where active support and funding of four Australians engaged in hostilities was achieved.
  5. The circumstances in Agaky-Wanda were also well removed from those of Mr Succarieh.  Leaving aside the fact that the decision is 26 years old, the description of the offending reveals why it is of limited utility.  The scale of the operation was described as minor, and pathetically put together, and “it was never going to succeed”.  That is to be contrasted with Mr Succarieh, whose efforts were prolonged, complicated, and successfully carried out.
  6. The two James decisions were acknowledged by senior counsel for Mr Succarieh as being less serious than his case.  Even allowing for the fact that they were decided in 1998, the offending was of a distinctly different quality.  They had accumulated or attempted to accumulate weapons, but the effort was sterile in that the weaponry had not made its way to those who might use it.  By contrast, Mr Succarieh’s assistance was direct in the sense that about US$44,000 was sent directly to aid his brother and three other Australians, all of whom were actually engaged in hostile conduct in Syria.  Further, in his efforts to assist LB, Mr Succarieh achieved a measure of success.
  7. Senior counsel for Mr Succarieh also accepted that his case was more serious than that in Little.  I would go further as, whilst the offender in Little attended a course in Ukraine in counter-terrorism, that location had nothing to do with the intended area of support (West Papua), and the attendance at the course seems to have been simply to impress others enough that he might be accepted into their organisation.  There was no suggestion that had occurred.  Those facts make Little distinctly different from Mr Succarieh, whose efforts were direct and successful.
  8. Two other decisions were listed in the prosecution’s schedule, R v Pilgrim[27] and R v Scott.[28]  The offences were under different sections than that applicable to all of the other CFIRA cases, and can be put to one side on that basis.  That much was recognised, at least implicitly, by senior counsel for Mr Succarieh, who did not advance them as having any relevance.
  9. The foregoing demonstrates, in my view, that the learned sentencing judge was correct to characterise the earlier decisions as being of limited assistance.  What her Honour said was that contemporary circumstances had changed since some of those decisions and some of the older sentences “have such different circumstances as to be of little relevance”.  I respectfully agree with that characterisation.

Limited assistance

  1. At the centre of the contentions advanced on behalf of Mr Succarieh, was an acknowledgment that the nature of the foreign hostilities which he was assisting, were relevant.  In that context, it was submitted that:

“… in the present case, her Honour accepted as a fact, in accordance with the agreed statement of facts, that the applicant’s brother and his associates patrolled the area in which they lived and would, if necessary, respond to the hostility of supporters of the Assad regime.  There was no suggestion that the involvement of those assisted by the applicant went further.”[29]

  1. That characterisation tends to downplay Mr Succarieh’s conduct.  Abraham was the second of his brothers to depart Australia for Syria.  Once in Syria, Abraham supported opposition forces in the Syrian conflict.[30]  Mr Succarieh was in regular telephone contact with Abraham, and others in Syria and Lebanon.  For the purposes of his telephone conversations with Abraham, he used the covert telephone subscribed in a false name.[31]  Through his support for Abraham, and Abraham’s associates in Syria, Mr Succarieh was able to vicariously “participate” in the Syrian conflict.[32]
  2. Mr Succarieh was aware that Abraham and the three other Australians were living in an area of military activity, and would engage in armed patrols, and if necessary engage in conflict with Assad regime forces.[33]  The money which Mr Succarieh provided to Abraham was to be distributed between Abraham and the three other Australians, for the purpose of aiding those persons to engage in, or continue to engage in, armed hostilities in Syria.[34]  The arrangements for the money to be provided, and the discussions about that, were conducted over quite a number of months, in code.
  3. At first, in December 2013, Mr Succarieh told Abraham that the money was just for him.[35]  However, by March 2014, Mr Succarieh told Abraham to use the money as a “group thing, together”.[36]  In the later supply of funds in July 2014, Abraham asked Mr Succarieh the specific question as to who was intended to benefit from the money.  Mr Succarieh told him that it was the same as the last time, except for $500 which was meant for a birth celebration.[37]  That prompted Abraham to ask about the rest of the money, specifically to identify whether it was to be given to the four Australians for them to deal with it as they saw fit.  Mr Succarieh said that it was for them to use on whatever they wanted to do with it.[38]
  4. The foregoing demonstrates plainly that there were no limits put on the use of the money by Mr Succarieh.  Firstly, it was not to benefit Abraham alone, but also to support three other Australians who were all engaged in hostilities in Syria.  Secondly, no constraints were put on the use of the money, such as for food and clothing as opposed to weapons.  Abraham and the other three could use it for whatever they thought fit.  Thus, Mr Succarieh effectively contributed a substantial sum on the basis that it could be used directly or indirectly in the carrying out of hostilities in Syria.  His support, whilst prompted by similar beliefs to those held by Abraham and the other Australians, was unqualified.  The Agreed Statement of Facts established that the money was successfully delivered to Abraham in Syria.  The total was about US$43,700, which in no reasonable way can be described as a small or inconsequential contribution.  This was a case of very substantial, direct and successful monetary support of four persons engaged in hostilities in Syria.

Comparable cases

  1. R v Mohamed[39] involved a 26 year old man who had migrated, as a child, with his family from Somalia to New Zealand.  He had a good education and tertiary degrees, a good work history, and no prior offences.  He was charged with three offences under s 7(1)(a) of the CFIRA.  Specifically he:
  1. applied for a passport so he could travel to Syria;
  2. booked plane tickets to Turkey, where he intended to enter Syria; and
  3. obtained from another man, the contact details of “Omar” who was to act as a guide ensuring safe passage into Syria.  In addition to organising his own travel, he was also organising and coordinating others who were travelling to Syria.  The intention was to meet up with those fellow travellers in Istanbul prior to the proposed entry into Syria.
  1. He was sentenced on the basis that his intention in travelling to Syria was to engage in hostile activity, by participating on the “front line” and, if necessary, becoming a martyr.  The trial and committal were conducted by him on the basis that he had an innocent purpose in going to Syria.  As the jury had rejected that, the sentencing judge was unable to detect contrition or remorse.  However, he was sentenced on the basis that he was a changed person from the way he was at the time of the offences and had reasonably good prospects for rehabilitation.[40]  On each of the three counts he was sentenced to four and a half years imprisonment, with six months on two of the charges to be served cumulatively with the sentence on the other.  The result was a total effective sentence of five years and six months.  Of that, it was ordered that he serve three years and six months before being eligible for parole.
  2. The sentence imposed in Mohamed was after a trial and therefore did not attract the sort of discount applicable in Mr Succarieh’s case, for the very fact that he pleaded guilty.  That being said, the offending in Mohamed was plainly of a lesser order than that of Mr Succarieh.  All of his efforts were directed to preparing himself to depart Australia for Syria, there to engage in hostile activities.  Whilst his intentions were carried out to the extent that he got a passport, booked plane tickets, and travelled from Melbourne to Brisbane intending to join an international flight, none of these efforts directly aided what was happening in Syria, or the support or perpetuation of hostile activities.  In Mr Succarieh’s case, his support was direct and tangible, and in Syria itself.  The money he supplied arrived in Syria to support four persons engaged in hostile conduct.
  3. For these reasons, I am of the view that Mohamed does not suggest that Mr Succarieh’s sentence is manifestly excessive.  If anything, it tends to support the sentence, in that if there had been a guilty plea, one might expect a sentence closer to about four years.
  4. R v El Sabsabi[41] was a case where a young man (22 or 23 during the offences, and 24 at sentencing) pleaded guilty to two charges under s 7(1)(e) of the CFIRA.  His offending involved the transfer of a total of about AUD$16,000 to a man who was in Syria participating in hostile conduct.  There were 11 separate transfers in order to achieve the total sum.  The funds were transferred to facilitate that person’s travel from the USA to Syria, and, once there, to enable him to engage in hostile activity.  The funds financed his plane ticket as well as a replacement passport.  Once that person had arrived in Syria the funding continued, in the belief that he was using those funds to fight the Syrian Assad government.
  5. The learned sentencing judge considered it significant that the funds were sent to the person in Syria, believing that he was engaging in hostile activities, and in particular believing that people were being killed.  I pause to note the similarity in that belief and that of Mr Succarieh.  As it was put by the learned sentencing judge:

“[T]he fact is that you decided to contribute a relatively significant sum of money to a person to enable him to engage in hostile activities in [Syria] which appeared to you to involve violence and killing.”[42]

  1. The offender was relatively young, and lacked any relevant prior offending.  Whilst there were prospects of rehabilitation, it was noted that might involve a form of “de-radicalisation”, the prospects of which were apparently difficult to determine.  There had been a considerable period of delay which enabled the offender’s rehabilitation to be well advanced.  That was evidently a central reason in the sentence imposed, which consisted of 44 days of time already served, and a community corrections order.  The learned sentencing judge took the view that “it would not only be counter-productive to you but also to the community to return you to custody because, in all likelihood it would set back your rehabilitative process”.[43]
  2. There are several reasons why El Sabsabi is of limited assistance in relation to Mr Succarieh’s offence.  It involves a much younger offender who provided only a small sum by way of support compared to Mr Succarieh, albeit that the support was in the same form.  More importantly, the well advanced rehabilitation and the prospect that it would be negated by a return to custody, makes it difficult to draw any conclusion from El Sabsabi about whether the sentence on Mr Succarieh is manifestly excessive or not.
  3. R v Alqudsi[44] concerned an offender whose conduct consisted largely of assisting others to travel to Syria in order to engage in hostilities.  The assistance mostly took the form of telephone advice about travel, exchange of currencies, purchase of tickets, hotels to stay at, the need for secrecy and a low profile when in Turkey and Syria, changing physical appearance so that the men would look like tourists, and encouragement about the prospect of becoming a martyr.  Further, the learned sentencing judge found that the most important role the offender played was to connect each of the men to a particular contact before they crossed the border from Turkey into Syria.  Seven men were involved in travelling to Syria to fight, and the offender was described as being effectively at the centre of the wheel, in which the seven men and the contact were the spokes.  The offender regarded himself as (and he probably was), the head of the organisation, referring to himself as the “coach” of a soccer team.  Other advice that he gave included instructing the wife of one of the men to delete all her phone numbers and then get rid of her phone.
  4. In each of the seven offences, the offender played a significant role in assisting each man to go to Syria to fight.  Whilst the offender performed a clear liaison and advisory role, he did not recruit the men themselves, each of whom were volunteers.
  5. The learned sentencing judge regarded the seriousness of his offending to be “moderately high”.  The judge was not persuaded that the offender had any real insight into the gravity of his offending or its effect on others, and was not persuaded that he was either contrite or remorseful.  His prospects of rehabilitation were not regarded as being good.  At the time of the offending, he was about 39 years old.  He had been married more than once and was a step-father to seven children.  His extended family included more than one wife, and his parents and younger brother (who had Multiple Sclerosis).
  6. On all but one of the seven counts, the sentence was four years imprisonment.  On the fourth count, it was four years and six months.  One of the four year terms was to commence in 2020, meaning that the overall effective sentence was one of eight years, with a non-parole period of six years.
  7. The offending conduct in Alqudsi can be seen as more serious than that of Mr Succarieh.  There was direct assistance, albeit of a non-financial kind, to seven persons who went to Syria to engage in hostilities.  That assistance was pivotal to their success in arriving in Syria, particularly as regards the contact person who was the key to crossing the border safely.  Further, one must bear in mind that the sentence was imposed after a trial, not a plea of guilty.  One might anticipate that if it had been on a plea of guilty, which would itself indicate a degree of remorse which was otherwise absent, the likely effective sentence would have been in the range of five to six years.  Of interest is the observation by the learned sentencing judge in Alqudsi that offences under s 7 of the CFIRA “can be described as ‘protean’, which further lessens the utility of comparisons”.[45]
  8. For these reasons it is my view that Alqudsi does not establish that Mr Succarieh’s sentence is manifestly excessive.  Indeed, it lends support in a general way to the view that Mr Succarieh’s sentence is within the bounds of appropriate discretion.
  9. R v Elomar[46] involved the wife of an Australian who had already left for Syria, and was fighting there as a member of ISIL.  Over the period of a month, following his advice and instructions, she assembled a series of items to take with her when she travelled to Syria with her children, to join him.  The items consisted of various forms of outdoor clothing, camouflage printed solar-powered watches and electronic device accessories such as cables and charges.  At all times she knew that her husband was fighting in Syria, and that he had gone to Syria in order to fight with ISIL.  In order to join him she had falsified his signature on passport applications for their four children.
  10. The learned sentencing judge found that the objective gravity of the offence was “at a fairly low level”.  It was noted that the items did not include weapons or ammunition, but nonetheless were capable of providing support to the husband in his engagement in armed hostilities.  The offender was 31 years old, and had no prior convictions.  Her husband was dominant in the partnership, and overbearing towards her, and in the month during which she assembled the goods, she was isolated and vulnerable.  Even so, because of her beliefs, she was highly motivated to continue with the marriage, and if that involved travel to Syria, she was prepared to do so.  Since her arrest she had been at liberty in the community for more than two years, during which time she had not been charged with any offence.  As the sentencing judge noted, the offender “appears to have substantially rehabilitated herself”.
  11. Those circumstances show that the sentence imposed in that case (two years and three months, fully suspended), is no guide as to whether the sentence imposed on Mr Succarieh is manifestly excessive.
  12. One needs to bear in mind that the mere fact that the sentence imposed is different from others, even markedly so, is not enough for appellate intervention.  As was said in Wong v The Queen:[47]

“In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. It follows that for a court to state what should be the range within which some or all future exercises of discretion should fall, must carry with it a set of implicit or explicit assumptions about what is, or should be regarded as, the kind of case which will justify a sentence within the specified range. It is those assumptions that may reflect or embody relevant principle, not the result.”

  1. In my view, it has not been demonstrated that the sentence imposed on Mr Succarieh was, in the circumstances, manifestly excessive.

An additional matter

  1. In the course of the learned sentencing judge’s remarks her Honour said this:

“From its inception, the Crimes (Foreign Incursions and Recruitment) Act provided a legislative scheme to promote and protect Australia’s international interests and the security and social cohesion of this nation.  It did this through criminal sanctions for Australian citizens or residents who undertook activities in Australia or elsewhere that had the potential to interfere with or harm foreign countries or governments through the use of force, violence or armed hostilities.  Amongst other prohibitions, the Act prohibited Australian citizens, and those ordinarily resident in Australia, from engaging in hostile activities in a foreign state.  It provided criminal sanctions for those that engaged in preparatory activity within Australia.

While the Act was first designed to preserve international stability by criminalising conduct of the type engaged in by private adventurers seeking to intervene in foreign states, it evolved to increasingly focus upon and reflect an underlying anti-terrorist policy concerned with the protection of Australia’s national security interests.  Among other things, by preventing Australian citizens and residents from travelling overseas to engage in hostile activities through criminally-sanctioned deterrents, the Act aimed to mitigate the risk that those individuals would return to Australia and commit domestic terrorist acts.”[48]

  1. In the course of submissions, senior counsel for Mr Succarieh criticised the final two lines of that passage on the basis that it reflected a view which was not contained in the Explanatory Memorandum for the CFIRA, nor was there anything in the Act itself to suggest such a purpose.  It was contended that those sentences reflected a finding by her Honour that was not justified by any material before her.
  2. In my view, that challenge is misplaced.  The passage referred to appears in a section where the learned sentencing judge was setting out the submissions by both the prosecution and defence on the question of sentencing principles.  The passage is an almost verbatim recitation of the submissions advanced in the prosecution’s outline on the sentencing hearing.[49]  The two lines to which criticism was directed appear in the last two lines of paragraph 15 of those submissions.  Her Honour’s recitation of matters the subject of the prosecution’s submission, continued after the passage referred to for at least the next following five or six paragraphs of the sentencing remarks.[50]  In large part, the succeeding paragraphs follow the prosecution’s written submissions.

Appeal by the Crown – applicable principles

  1. The Crown appeals against the sentences imposed on Mr Succarieh on two grounds.  The first is that the learned sentencing judge did not properly assess his prospects of rehabilitation.  The second is that the sentences, individually or in the aggregate, are manifestly inadequate.
  2. In order to succeed on the appeal the Crown must demonstrate error on the part of the learned sentencing judge.  In CMB v Attorney-General for New South Wales[51] the plurality in the High Court said:

“[54] The law reposes a wide discretion in the sentencing judge as to the determination of the appropriate sentence for the offender and the offence.  Appeals against sentence, whether by the offender or the prosecution, require demonstration of error in one or more of the respects identified in House v The King.  Where error of that kind is established in an appeal by the offender, it is the duty of the Court of Criminal Appeal to exercise the sentencing discretion afresh.  Where error of that kind is established in an appeal by the prosecution, the Court of Criminal Appeal may in its discretion dismiss the appeal notwithstanding that the sentence is erroneously lenient.  This is sometimes described as ‘the residual discretion’.  As French CJ and Gageler J explained, the discretion is residual only in that its exercise does not fall to be considered unless House error is established.”

…

[56] In R v Hernando, Heydon JA summarised the Court of Criminal Appeal’s approach to the disposition of prosecution appeals against sentence (67):

“[I]f this Court is to accede to the Crown’s desire that the respondent be sentenced more heavily, it must surmount two hurdles.  The first is to locate an appealable error in the sentencing judge’s discretionary decision.  The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.”[52]

  1. In appeals by the Crown, the appellate court is concerned with laying down principles to provide guidance to sentencing courts.[53]

Crown appeal – ground 1 – the finding on rehabilitation

  1. The first ground relied upon by the Crown related to the issue of Mr Succarieh’s prospects of rehabilitation.  It was contended that pursuant to s 16A(2)(n) of the Crimes Act, the learned sentencing judge was required to take into account, insofar as relevant and known to the Court, Mr Succarieh’s prospects of rehabilitation.  It was contended that what her Honour said on that topic did not amount to a finding or assessment of rehabilitation prospects.  Secondly, it was said that there were significant matters militating against a positive assessment of the prospects of rehabilitation, including:
  1. the fact that Mr Succarieh had committed the offences with full knowledge of their illegality;
  2. his reluctance to acknowledge that his actions were criminal; and
  3. the absence of evidence that he had renounced the fundamentalist religious views that had motivated his offending; it was contended that the onus was on Mr Succarieh to establish that he had renounced those views.[54]
  1. The respondent contended that the learned sentencing judge was only required to take into account Mr Succarieh’s prospects of rehabilitation insofar as they were known to the Court.  Her Honour did that, it was said, and the comments on that issue were a measured and accurate evaluation of the evidence available.  It was contended that a proper analysis of the sentencing remarks showed that her Honour had in fact taken into account the three matters identified by the Crown.
  2. The learned sentencing judge dealt with the issue of rehabilitation in a particular way.  Because the Crown contended in its appeal that the learned sentencing judge did not properly deal with the issue of rehabilitation, I will set out that part of the sentencing remarks:

“With regard to your prospects of rehabilitation, as I have said, you have not committed any further offences in custody.  You are still a relatively young man with responsibilities to your family.  You lack prior convictions of a similar nature.  You do have two prior appearances before the court in which convictions were not recorded when you were only a very young man.  Certainly, it is true that you appear to have got into quite a lot of trouble at school for fighting, but one does hope that young men will grow out of that kind of violent behaviour and you have not had any similar offending as you have got older.

I have had the advantage of reading a number of references written by various people about you, including but not limited to members of your family.  Your community would be well served if you adopt an approach of working towards the good of other people and in a charitable spirit.  You have had, until recently before your arrest, a lifetime of solid, hard work, where you have contributed through that hard work and also through charitable activity.  Those things bode well for your future.”[55]

  1. As is apparent from the passage above, in the course of the passage dealing with the prospects of rehabilitation, the learned sentencing judge identified a number of factual matters which were not in contention.  They include: Mr Succarieh was a relatively young man; he had responsibilities to his family; he lacked prior convictions of a similar nature; he had gotten into a lot of trouble at school for violent fighting, but as he got older he did not have any similar offending; he had, until recently, a lifetime of solid, hard work where he had contributed through that hard work and also through charitable activity.
  2. Given those factual findings, when the learned sentencing judge said “those things bode well for your future”, that was no more than a finding that there were reasonable prospects of rehabilitation.  It is true to say that different judges might express such a finding differently, but in my respectful view, what her Honour intended is quite clear.
  3. As to the first factor identified by the Crown, shortly before the passage referred to above, the learned sentencing judge made a finding concerning Mr Succarieh’s knowledge of the illegality of what he was doing.  That finding was the culmination of a number of references leading to her Honour’s conclusion about Mr Succarieh’s state of knowledge, and in particular, reflecting her finding that it was clear he knew, from 11 August 2013 when he was interviewed by the AFP at Brisbane Airport, that the actions which he later engaged in were against the law.[56]  In the course of dealing with the question of remorse the learned sentencing judge said:

“I do not entirely accept that you committed these offences out of naivety, since you were informed by the police before the offences were committed that to do so was against the law …”[57]

In light of those findings, the learned sentencing judge cannot be said to have misapprehended the significance of the feature that Mr Succarieh knew that his actions were criminal.

  1. The second factor concerns Mr Succarieh’s contended reluctance to acknowledge that his actions were criminal.  Her Honour referred to a letter written by Mr Succarieh to the Court,[58] in which he acknowledged the criminality of his conduct, highlighting the contrast between his previous understanding and his current understanding:

“With hindsight, now I fully understand how my support for some of the actions was against the law.  I believe the support I saw generally to the opposition to the Assad regime lessened my concerns about whether I was breaking the law.  I now understand that it is against the law, and I can also see now why it is against the law.”[59]

  1. The third point concerns the contention that Mr Succarieh had to establish, and the learned sentencing judge had to find, that he had renounced the fundamentalist religious views that had motivated his offending.  As it was put in the course of argument, by senior counsel for the Crown, “one would need to be satisfied that those beliefs have ameliorated to the extent that they will no longer trump one’s obedience to the local domestic law”.[60]
  2. Insofar as reliance was placed upon Olbrich, that decision needs to be understood in context.  Olbrich referred to the distinction between a sentence proceeding on a fact adverse to the accused and a sentence proceeding on a fact favourable to an accused.  A sentencing judge may not take facts into account in a way adverse to the interests of someone accused unless those facts have been established beyond reasonable doubt.[61]  However, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough that they be proved on the balance of probabilities.[62]  The Court, when discussing the question of onus, said:

“Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it.  Similarly, if will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it.  (We say ‘if necessary’ because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)”[63]

  1. As that passage demonstrates, on this issue Olbrich is authority for no more than that the offender will need to call evidence if a fact is controverted, or the judge is not prepared to act on it.
  2. In the course of written submissions at the sentencing, senior counsel for Mr Succarieh submitted that he “has the support of well-respected and senior members of the Islamic community.  They and he have committed to work together to ensure that Mr Succarieh will be an example to others not to involve themselves in the activities that he did”.[64]  Support for that submission came in the form of letters to the Court from Imams at two centres as well as a spokesman for the Islamic Council of Queensland.  Imam Buksh said that he was in a position to support Mr Succarieh upon his release from custody and offered him “religious support and guidance, as well as [to] ensure his religious practices are structured and appropriate within the Mosque”.[65]
  3. Imam Akbar said that Mr Succarieh “has assured me that he will not isolate himself and ignore the advice from the established religious scholars”.[66]  Mr Kadri, of the Islamic Council of Queensland, said of Mr Succarieh:

“I have received an assurance from him that upon his release he will be working closely with myself and other members of the community to deter other young men from criminal activity.  His experience, if shared, could be a very good lesson for the young men who may romanticise foreign conflicts.  His successful integration will be a model which can be used for rehabilitating those who have being (sic) charged with similar offences, as well as stopping young men from breaking the law in the first place.”[67]

  1. Mr Succarieh’s own letter to the sentencing judge made several statements concerning his acknowledgment of the need to comply with Australian law:
  1. “From now on, I promise that I will strive to always act according to Australian laws and integrate back into society as a law abiding citizen”;
  2. “I believe that through building a better relationship with the AFP, ASIO and any other law enforcement agencies while being completely and utterly transparent, will make sure that these circumstances never have to happen again”; and
  3. “Although I was studying religion, I did not and do not believe that I am qualified to be in a position of authority in the religious industry and have no desire to be in one.  With this in mind, I wish to assure the court that I have no intentions of reopening another Islamic Centre or any other Islamic institution.  I have no intentions on giving public lectures regarding religion and I intend on gaining my Islamic knowledge through established Islamic Mosques that have an existing relationship with the broader community”.
  1. Notwithstanding that the Crown raised the issue in its written and oral submissions, at sentence there was no challenge to the tender of the letters to which I have referred, nor a request to cross-examine Mr Succarieh[68] in relation to the veracity of his assertions concerning his willingness to engage in the mainstream Islamic community.
  2. In those circumstances, it is difficult to reach the conclusion that Mr Succarieh’s acknowledgement of the need to obey Australian laws and to progress his religious study through mainstream Islamic Mosques, were controverted facts requiring him to go further to establish them.
  3. I should not be taken as accepting the proposition (advanced by the Crown) that absent a renunciation of the previous views, that prospects of rehabilitation were adversely affected.  As was put in oral submissions, one would really look to see whether fundamentalist religious views had been ameliorated to the point where it was recognised that they could no longer govern one’s obedience to local domestic law.  That, in effect, is what Mr Succarieh said in his letter to the learned sentencing judge.
  4. Senior counsel for the Crown contended that because of the lack of proof that Mr Succarieh had resiled from his fundamentalist Islamic beliefs, the learned sentencing judge erred in her finding on the question of rehabilitation.  There are several difficulties with that contention.  First, what the learned sentencing judge said in the passage at paragraph [106] above was not a finding that Mr Succarieh had been rehabilitated, or reached any particular point of rehabilitation.  Her Honour had the agreed evidence[69] that Mr Succarieh had fundamental religious and ideological beliefs in favour of the overthrow of the Assad regime and the establishment in its place of a state governed by Islamic law.  Her Honour also had the benefit of the contention by the Crown during the sentencing hearing, that specific deterrence was a necessary element, in part because the offending was driven by Mr Succarieh’s particular religious and ideological beliefs, and there was no evidence that he had resiled from them or changed them.[70]  In addition, her Honour had the benefit of the letters tendered (without objection) by senior counsel for Mr Succarieh, and the submission that, having used his time in custody to reflect on his conduct, Mr Succarieh intended to surround himself with moderate Islamic influences in which respect he had the support of senior members of the Islamic community.[71]  Finally, her Honour’s own finding was that the motivation for the offending was multi-factorial, in part because Mr Succarieh believed Abraham and the other Australians had no money and were struggling to live, and in part because he felt connected to the civil war in Syria.[72]
  5. Given those matters, it is plain that the learned sentencing judge was not making a positive finding, one way or the other, on the issue of rehabilitation, but merely finding that there were prospects of rehabilitation, or cause for optimism on that score.
  6. Secondly, assuming the success of that contention, this Court would be placed in the same position as the learned sentencing judge, in the sense that the state of the evidence would be the same on the issue of rehabilitation.  That evidence does not enable a finding beyond that which her Honour made.
  7. Thirdly, the way in which the sentencing hearing was conducted has a bearing on this issue.  The submissions on each side were exchanged on the same date.  That means that Mr Succarieh’s letter to the Court, and those of the Imams, were likely not to have been in the hands of the Crown at the time they made their written submission about the lack of evidence as to any resiling from religious fundamental beliefs.  That said, the Crown maintained their submission in oral address.[73]  It may be that there was some modification in the Crown’s stance, given that when reference was made to paragraph 64 of its outline,[74] it was said that specific deterrence was called for “chiefly because of the course of conduct …”.[75]  There was no objection to the tender of the material on behalf of Mr Succarieh, and no request to cross-examine.
  8. In my view, ground 1 of the Crown appeal has no merit.

Crown appeal – ground 2 – manifest inadequacy

  1. The Crown’s contentions in this respect on this ground sought to identify specific errors, as well as relying upon the proposition, from House v The King[76] that the sentence was so unreasonable or plainly unjust that it was apparent there had been a failure to properly exercise the sentencing discretion.
  2. It is convenient to deal with the contentions identifying specific error first.
  3. Count 4 was selected by the learned sentencing judge for the purpose of imposing as “the most serious offence” upon which a sentence could be imposed “which reflects the totality of your offending behaviour”.[77]  The contention advanced was that the sentence imposed for count 4 (four years and six months) failed to properly comprehend the objective seriousness of the total criminality involved in the four offences.  Particular features of the offences were identified in support of this contention:
  1. Mr Succarieh sought to participate in the Syrian conflict by aiding and supporting several persons who intended to act as foreign fighters;
  2. he provided a significant amount of money (approximately US$43,700) to Abraham and his comrades;
  3. he went to considerable efforts to assist LB to travel to Syria to join them;
  4. the offending took place over a lengthy period of time and required a substantial degree of planning, coordination, organisation and continuing effort on Mr Succarieh’s part;
  5. he must have known that what he was doing was illegal and a criminal offence;
  6. his letter to the learned sentencing judge demonstrated a lack of responsibility for his criminal conduct, and an unwillingness to acknowledge that he knew all along that he was deliberately flouting a law and committing serious criminal offences;
  7. instead he sought to minimise and justify his actions as being “ignorant” or “naïve” mistakes;
  8. Mr Succarieh’s claimed affinity for the Syrian people and his perceptions of the “justness” of opposing the Syrian government should have had no bearing on the objective gravity of the offences;
  9. Mr Succarieh’s statement to the Court in his letter should have been given little or no weight because he did not give evidence and the motivations he claimed were in contrast with those set out in the Agreed Statement of Facts; in any event Mr Succarieh acted with the intention of assisting others to fulfil their intention to engage in armed hostilities, in groups connected with or aligned to prescribed terrorist organisations;
  10. Mr Succarieh’s fundamentalist religious and ideological motivations demonstrated that he placed his “duty” to Islam and Muslims above compliance with the laws of the country of Australia;
  11. his extremist religious and ideological views are inimicable to the Australian society, and threatens it;
  12. there was no evidence that he had resiled from those views, nor had he renounced his support for the militant Islamist groups; in that context principles applied in sentencing for terrorism offences were relevant and matters personal to an offender ought to carry less weight; and
  13. the geopolitical climate and contemporary context in which the offences were committed was important, and distinguished Mr Succarieh’s case from cases unrelated to the Syrian conflict.
  1. Further, it was contended that Mr Succarieh’s conduct relating to assisting Abraham was offending of a different character to that relating to LB, and therefore deserving of additional punishment.
  2. All of the matters referred to were the subject of careful examination at a number of levels during the sentencing hearing.  Starting with the Agreed Schedule of Facts itself, the matters in it were rehearsed in the submissions (both written and oral) and then dealt with at some length by the learned sentencing judge.  The sentencing remarks make it plain that her Honour fully comprehended the objective seriousness of the total criminality of the offending, as reflected in the Statement of Facts which formed the basis upon which the sentence proceeded.[78]  Further, her Honour accepted that part of the motivation for Mr Succarieh was his fundamentalist Islamic views in support of overthrowing the Assad regime through armed hostility, and that his support for his brother and his associates meant that Mr Succarieh himself was able to vicariously participate in the Syrian conflict.  Her Honour accepted that Mr Succarieh’s motivation for the offending was multifactorial, and that the offences were carried out during a time when Mr Succarieh well knew that the conduct was unlawful.  Further, the limitations evident in the content of Mr Succarieh’s letters to the learned sentencing judge were reflected in her Honour’s consideration of the questions of remorse and rehabilitation.
  3. The learned sentencing judge adverted to the sentencing principles and considerations found in s 16A of the Crimes Act.  Each of those matters were dealt with in turn.  The objective seriousness of the offences was described by her Honour as “high”.[79]  Having gone through the various matters under s 16A, her Honour gave consideration to those authorities advanced by both sides, but found assistance in Alqudsi, Mohamed and Elomar.
  4. Having reviewed the sentencing remarks in light of the contentions advanced under this ground, I am quite unable to come to the conclusion that relevant error in the sense of House v The King can be demonstrated.  The sentence is not so unreasonable or plainly unjust that it is apparent that there has been a failure to properly exercise the sentencing discretion.  Nor am I persuaded that in any of the respects identified above, there is any specific identifiable error.
  5. One further matter was advanced in support of this ground.  That was that the learned sentencing judge placed too much weight upon too limited a pool of three cases, Alqudsi, Elomar and Mohamed.[80]
  6. In my view that contention has no merit.  It was the Crown’s submission during the sentencing hearing that cases prior to Elomar, Alqudsi and Mohamed were of little assistance, a submission with which the learned sentencing judge agreed.  Reference to all of those prior cases has been made above,[81] and Elomar, Alqudsi and Mohamed have been the subject of specific consideration.[82]  I do not consider that the learned sentencing judge’s evaluation of Mr Succarieh’s criminality miscarried because of her reference to those three cases.  Her Honour took the unexceptional course of establishing the factual basis for the sentence, then examining the objective seriousness of the offending in its context, giving consideration to all relevant factors under s 16A of the Crimes Act, and then giving consideration to whether comparable cases indicated the bounds within which a sentence should be imposed.  In doing so her Honour had reference to more than Elomar, Alqudsi and Mohamed, but gave specific consideration to them in light of the Crown’s submission.  In those circumstances, the Crown can hardly criticise her Honour’s approach.
  7. In my view, there is no merit to ground 2 of the Crown’s appeal.

Disposition of the application for leave to appeal, and appeal

  1. I have had the benefit of reading the reasons of McMurdo JA and agree with his Honour’s observations.  For the reasons which I have given above, both the application for leave to appeal against sentence by Mr Succarieh, and the Crown’s appeal against sentence, fail.  I would make the following orders:
    1. In CA 304 of 2016, refuse the application for leave to appeal.
    2. In CA 332 of 2016, dismiss the appeal.
  2. McMURDO JA:  I agree with the orders proposed by Morrison JA and I substantially agree with his reasons.  To that detailed analysis, I wish to add something about an argument for the prosecution, made to the sentencing judge and to this Court, about the object of the law under which the appellant was convicted.
  3. That argument was set out in the prosecutor’s written submissions to the judge, as follows:

“Whilst the CFIRA was first designed to preserve international stability by criminalising the conduct of the type engaged in by private adventurers seeking to intervene in foreign states, it evolved to increasingly focus upon and reflect an underlying anti-terrorist policy concerned with the protection of Australia’s national security interests.  Amongst other things, by preventing Australian citizens and residents from travelling overseas to engage in hostile activities through criminally sanctioned deterrents, the CFIRA aimed to mitigate the risk that those individuals would return to Australia and commit domestic terrorist acts.

…

The CFIRA was amended from time to time.  In 2004 the CFIRA, the Crimes Act and the Criminal Code were each amended by the Anti-Terrorism Act, No. 104, 2004, as part of a co-ordinated legislative effort to harmonise and update Australia’s counter-terrorism laws.  As the Explanatory Memorandum to the relevant Bill for the amended legislation stated:

‘All these proposed amendments improve Australia’s counter-terrorism legal framework.’”

As Morrison JA has discussed, this written submission was repeated word for word in the judge’s sentencing reasons, although the judge did not specifically consider its merit.

  1. Mr Succarieh was convicted of offences against s 7(1)(a) and s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (the Act).  The terms of those provisions were as follows:

“(1) A person shall not, whether within or outside Australia:

  1.  do any act preparatory to the commission of an offence against section 6, whether by that person or by another person;

…

  1.  give money or goods to, or perform services for, any other person or any body or association of persons with the intention of supporting or promoting the commission of an offence against section 6;”

Each offence was thereby connected with the potential for the commission of an offence against s 6 of the Act which it is necessary to set out in full:

“6 Incursions into foreign States with intention of engaging in hostile activities

  1. A person shall not:
  1.  enter a foreign State with intent to engage in a hostile activity in that foreign State; or
  1.  engage in a hostile activity in a foreign State.
  1. A person shall not be taken to have committed an offence against this section unless:
  1.  at the time of the doing of the act that is alleged to constitute the offence, the person:
  1.  was an Australian citizen; or
  1.  not being an Australian citizen, was ordinarily resident in Australia; or
  1.  the person was present in Australia at any time before the doing of that act and, at any time when the person was so present, his or her presence was for a purpose connected with that act, or for purposes that included such a purpose.
  1. For the purposes of subsection (1), engaging in a hostile activity in a foreign State consists of doing an act with the intention of achieving any one or more of the following objectives (whether or not such an objective is achieved):
  1.  the overthrow by force or violence of the government of the foreign State or of a part of the foreign State;

(aa) engaging in armed hostilities in the foreign State;

  1.  causing by force or violence the public in the foreign State to be in fear of suffering death or personal injury;
  1.  causing the death of, or bodily injury to, a person who:
  1.  is the head of state of the foreign State; or
  1.  holds, or performs any of the duties of, a public office of the foreign State or of a part of the foreign State; or
  1.  unlawfully destroying or damaging any real or personal property belonging to the government of the foreign State or of a part of the foreign State.
  1. Nothing in this section applies to an act done by a person in the course of, and as part of, the person’s service in any capacity in or with:
  1.  the armed forces of the government of a foreign State; or
  1.  any other armed force in respect of which a declaration by the Minister under subsection 9(2) is in force.
  1. Paragraph (4)(a) does not apply if:
  1.  a person enters a foreign State with intent to engage in a hostile activity in that foreign State while in or with an organisation; and
  1.  the organisation is a prescribed organisation at the time of entry.
  1. Paragraph 4(a) does not apply if:
  1.  a person engages in a hostile activity in a foreign State while in or with an organisation; and
  1.  the organisation is a prescribed organisation at the time when the person engages in that hostile activity.
  1. For the purposes of subsections (5) and (6), prescribed organisation means:
  1.  an organisation that is prescribed by the regulations for the purposes of this paragraph; or
  1.  an organisation referred to in paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code.
  1. Before the Governor-General makes a regulation prescribing an organisation for the purposes of paragraph (7)(a), the minister must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering:
  1.  a serious violation of human rights; or
  1.  armed hostilities against the Commonwealth or a foreign State allied or associated with the Commonwealth; or
  1.  a terrorist act (as defined in section 100.1 of the Criminal Code); or
  1.  an act prejudicial to the security, defence or international relations of the Commonwealth.”
  1. The conduct which was proscribed by s 6 was engaging in a hostile activity in a foreign State or the entry of a foreign State with an intent to engage in that activity.  Conduct constituted engaging in a hostile activity if it was of a kind described in s 6(3).  That definition of the conduct contained no reference to terrorism.  Undoubtedly there could be cases where the activity was in the nature of terrorism, but s 6 was not limited to such cases.
  2. Other parts of s 6 did refer to terrorism.  But their effect was only to qualify the exemption from the operation of s 6 which was expressed in s 6(4)(a): if a person was acting in or with a terrorist organisation,[83] that person was denied the exemption which applied to conduct of the service in, or with, the armed forces of the government of a foreign State.  That qualification to the exemption was added by an amendment to s 6 which was made by the Anti-Terrorism Act 2004 (Cth).  It was in that context that an explanatory memorandum referred to the improvement of “Australia’s counter-terrorism legal framework”, which was quoted in paragraph 17 of the prosecutor’s submissions which I have set out above.  Those amendments did not insert, as an element of an offence against s 6, a requirement that an act of terrorism be intended or committed.
  3. Originally Mr Succarieh was charged upon a different indictment.  He was then charged with the same counts against s 7(1)(a), but not with those against s 7(1)(e).  Instead he was charged with offences against s 102.6(1) of the Criminal Code (Cth), which provides as follows:

“102.6 Getting funds to, from or for a terrorist organisation.

  1. A person commits an offence if:
  1.  the person intentionally:
  1.  receives funds from, or makes funds available to, an organisation (whether directly or indirectly); or
  1.  collects funds for, or on behalf of, an organisation (whether directly or indirectly); and
  1.  the organisation is a terrorist organisation; and
  1.  the person knows the organisation is a terrorist organisation.

Penalty: Imprisonment for 25 years.”

Those charges relied upon the same movements of funds.  But Mr Succarieh was then alleged to have intentionally made them available to a terrorist organisation, knowing it to be such an organisation.  Shortly prior to the trial upon that earlier indictment, the prosecution elected not to proceed upon it and presented the indictment containing the four counts under s 7(1), to which Mr Succarieh then pleaded guilty.  The charges under s 102.6(1) of the Code carried a maximum penalty of 25 years.  Those under s 7(1) carried a maximum penalty of 10 years.

  1. This argument of the prosecution suggested that in the consideration of the matters of deterrence, punishment, denunciation and other relevant factors, the court, in sentencing Mr Succarieh, should be mindful that a purpose of the Act was to prevent terrorism, and not only in a foreign State but in Australia.  That argument created the risk of an incorrect reasoning by the sentencing judge, by which the present offences could have been treated as terrorist related.  But that more serious case against him had been abandoned.  He was to be sentenced upon the basis of his guilt under s 7(1) of the Act, which did not include the element that his conduct was in furtherance of terrorism.  It is fortunate that the sentencing judge appears not to have accepted the prosecution argument.
  2. BOND J:  I agree with Morrison JA.  I also agree with the additional observations made by McMurdo JA.

Footnotes

[1]  Possession of a steroid.

[2]  Abraham identified the four Australians as “me, Struggle, Saiful and Bilal”.

[3]  Vaevae had been wearing a red shirt earlier in the day.

[4]  AB 132.

[5]  When he was interviewed at the Brisbane Airport.

[6]  AB 86.

[7]  AB 87.

[8]  AB 98-99.

[9]  AB 99.

[10]  AB 99.

[11]  AB 100.

[12]  AB 100-102.

[13]  AB 101.

[14]  AB 101 lines 32-42.

[15]  In 1987, to criminalise foreign fighters, and assistance given to them, irrespective of the group with which they intended to associate.  In 2004, increasing the maximum penalty for s 6 offences from 14 to 20 years; maintaining the maximum penalty for s 7 offences, and expanding the Australian nexus required for s 7 offences, so that presence in Australia at any time before the relevant act would suffice, rather than presence within a year before the relevant act.

[16]  [1996] QCA 156.

[17]  Relying on R v Pham (2015) 256 CLR 550 at [26]-[29], and Hili v The Queen (2010) 242 CLR 520 at [18], [46]-[57].

[18]  Relying on The Queen v Kilic [2016] HCA 48, at [25].

[19]  AB 101.

[20]  9 October 1981, District Court, NSW.

[21]  9 May 1988, District Court, NSW.

[22]  19 March 1991, District Court, Queensland.

[23]  27 August 1998, District Court, Queensland.

[24]  On separate offenders, but involved in the same conduct.

[25]  26 September 2013, District Court, Queensland.

[26] Hughes at page 4.

[27]  District Court, Western Australia, 1984.

[28]  New South Wales District Court in 1987.

[29]  Applicant’s outline paragraph 35.

[30]  Agreed Statement of Facts paragraph 9.

[31]  Agreed Statement of Facts, paragraph 12.

[32]  Agreed Statement of Facts, paragraph 15.

[33]  Agreed Statement of Facts, paragraph 23.

[34]  Agreed Statement of Facts, paragraph 24.

[35]  Agreed Statement of Facts, paragraph 27.

[36]  Agreed Statement of Facts, paragraph 33.

[37]  One of the group was evidently about to become a father.

[38]  Agreed Statement of Facts, paragraph 73.

[39]  [2016] VSC 581.

[40]  Albeit that those prospects had to be tempered by the lack of remorse.

[41]  [2016] VSC 740.

[42] El Sabsabi at [30].

[43] El Sabsabi at [66].

[44]  [2016] NSWSC 1227.

[45] Alqudsi at [121].

[46]  District Court, NSW, 1 July 2016, 2014/00133703.

[47]  [2001] HCA 64, at [58] per Gaudron, Gummow and Hayne JJ.

[48]  AB 100 line 35 to AB 101 line 3.

[49]  AB 160, paragraphs 12, 13 and 15.

[50]  AB 101.

[51]  (2015) 256 CLR 346; [2015] HCA 9.

[52] CMB at [54] and [56]; internal footnotes omitted.

[53] CMB at [55]; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [16].

[54]  Relying on R v Olbrich (1999) 199 CLR 270; [1999] HCA 54.

[55]  AB 104 line 39 to AB 105 line 4.

[56]  AB 87 line 7, AB 98 lines 6-12.

[57]  AB 104 lines 5-7.

[58]  AB 386-389.

[59]  AB 387.

[60]  Appeal Transcript, 1-17 lines 20-23.

[61]  This position has been modified in Queensland as a result of a 132C(3) of the Evidence Act 1977 (Qld), which provides that if an allegation of fact is not admitted or is challenged in a sentencing procedure, the sentencing judge may act on the allegation if satisfied on the balance of probabilities that it is true: R v Handlen [2015] QCA 292, at [86] per McMurdo P, Holmes CJ and Gotterson JA concurring.

[62] Olbrich at 281, per Gleeson CJ, Gaudron, Hayne and Callinan JJ.

[63] Olbrich at 281.

[64]  AB 336, paragraph 41.

[65]  AB 365.

[66]  AB 367.

[67]  AB 369.

[68]  Or anyone else.

[69]  Paragraph 17-23 of the agreed Schedule of Facts, AB 135-136.

[70]  Crown outline at the sentencing hearing, paragraph 64.d: AB 172.

[71]  AB 326, submissions at the sentencing hearing, paragraph 7: AB 326.

[72]  AB 98 line 45 to AB 99 line 3.

[73]  AB 46 lines 14-21.

[74]  Where the challenge was raised.

[75]  Referring to the multiple telephone contacts, attempts to disguise the offending and continuing whilst knowing he was under suspicion and investigation.

[76]  (1936) 55 CLR 499 at 505.

[77]  AB 102 lines 40-43.

[78]  AB 86 line 35.

[79]  AB 103 line 24.

[80]  Crown outline on its appeal, paragraph 35.

[81]  Paragraphs [64] to [71].

[82]  Paragraphs [79] to [95] above.

[83]  A “terrorist organisation”, as defined in s 102.1(1) of the Criminal Code (Cth), is, by s 6(7) of the Act, a “prescribed organisation” for the purposes of s 6.

Close

Editorial Notes

  • Published Case Name:

    R v Succarieh; R v Succarieh; Ex parte Commonwealth Director of Public Prosecutions

  • Shortened Case Name:

    R v Succarieh; ex parte Director of Public Prosecutions (Cth)

  • MNC:

    [2017] QCA 85

  • Court:

    QCA

  • Judge(s):

    Morrison JA, McMurdo JA, Bond J

  • Date:

    12 May 2017

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC1276/16 (No Citation)02 Nov 2016Date of Sentence.
Appeal Determined (QCA)[2017] QCA 8512 May 2017Application for leave to appeal against sentence refused; appeal against sentence dismissed: Morrison, McMurdo JJA and Bond J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
CMB v Attorney-General (2015) 256 CLR 346
4 citations
Jump To
Cite 1 - (2015) 256 CLR 346
Cite 2 - (2015) 256 CLR 346
Cite 3 - (2015) 256 CLR 346
Cite 4 - (2015) 256 CLR 346
CMB v Attorney-General (NSW) [2015] HCA 9
2 citations
Jump To
Cite 1 - [2015] HCA 9
Cite 2 - [2015] HCA 9
Hili v The Queen (2010) 242 CLR 520
1 citation
Jump To
Cite 1 - (2010) 242 CLR 520
House v R (1936) HCA 40
1 citation
Jump To
Cite 1 - (1936) HCA 40
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Lacey v Attorney-General (Qld) (2011) 242 CLR 573
1 citation
Jump To
Cite 1 - (2011) 242 CLR 573
Lacey v The Attorney-General of Queensland [2011] HCA 10
1 citation
Jump To
Cite 1 - [2011] HCA 10
Queen v Olbrich [1999] HCA 54
2 citations
Jump To
Cite 1 - [1999] HCA 54
Cite 2 - [1999] HCA 54
R v Alqudsi [2016] NSWSC 1227
4 citations
Jump To
Cite 1 - [2016] NSWSC 1227
Cite 2 - [2016] NSWSC 1227
Cite 3 - [2016] NSWSC 1227
Cite 4 - [2016] NSWSC 1227
R v El Sabsabi [2016] VSC 740
4 citations
Jump To
Cite 1 - [2016] VSC 740
Cite 2 - [2016] VSC 740
Cite 3 - [2016] VSC 740
Cite 4 - [2016] VSC 740
R v Elomar [2016] NSWDC 319
1 citation
Jump To
Cite 1 - [2016] NSWDC 319
R v Handlen [2015] QCA 292
1 citation
Jump To
Cite 1 - [2015] QCA 292
R v Kilic [2016] HCA 48
1 citation
Jump To
Cite 1 - [2016] HCA 48
R v Mohamed [2016] VSC 581
3 citations
Jump To
Cite 1 - [2016] VSC 581
Cite 2 - [2016] VSC 581
Cite 3 - [2016] VSC 581
R v Olbrich (1999) 199 CLR 270
4 citations
Jump To
Cite 1 - (1999) 199 CLR 270
Cite 2 - (1999) 199 CLR 270
Cite 3 - (1999) 199 CLR 270
Cite 4 - (1999) 199 CLR 270
R v Pham (2015) 256 CLR 550
1 citation
Jump To
Cite 1 - (2015) 256 CLR 550
The Queen v Hughes [1996] QCA 156
3 citations
Jump To
Cite 1 - [1996] QCA 156
Cite 2 - [1996] QCA 156
Cite 3 - [1996] QCA 156
Wong v The Queen (2001) 207 CLR 584
1 citation
Jump To
Cite 1 - (2001) 207 CLR 584
Wong v The Queen [2001] HCA 64
2 citations
Jump To
Cite 1 - [2001] HCA 64
Cite 2 - [2001] HCA 64

Cases Citing

Case NameFull CitationFrequency
R v Norris; ex parte Attorney-General[2018] 3 Qd R 420; [2018] QCA 271 citation
R v Succarieh[2018] 3 Qd R 104; [2017] QCA 2821 citation
Re Talib [2022] QSC 112 citations
1

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