Documente Academic
Documente Profesional
Documente Cultură
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Supreme Court
Before: Fagan J
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Category: Sentence
Representation: Counsel:
N T Robinson QC with B E M Anniwell (Crown)
A Moen (offender Bayda)
C O’Donnell SC (offender Namoa)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Fay Rose Legal (offender Bayda)
Tully & Chiper Lawyers (offender Namoa)
Publication Restriction: No
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JUDGMENT
1 On 5 September 2018 Sameh Bayda and Alo-Bridget Namoa were arraigned
on a charge that:
Between about 8 December 2015 and about 25 January 2016 at Sydney in the
State of New South Wales and elsewhere, [they] did conspire with each other
to do acts in preparation for a terrorist act (or acts).
2 Both pleaded not guilty. They were tried over the ensuing 20 days. Verdicts of
guilty were returned against both offenders on 5 October 2018.
3 They were aged 18 years at the time of the conspiracy and are now 21. Bayda
is from a Muslim family of Lebanese background. Religious teachers at a
bookstore and prayer hall taught him militant Islam from about mid-2013, when
he was 15. He became more fanatical in late 2015. Namoa’s parents are of
Tongan origin and are Christian. Namoa was introduced to Islam by two female
street preachers in 2012 when she was 14½. In her own words she was an
Islamic fanatic from mid-2015.
4 Islam was the religion and ideology the offenders intended to advance by the
acts for which they conspired to make preparations. They were in a romantic
relationship on and off from about April 2015 and they went through an Islamic
ceremony of marriage during the charge period.
5 The maximum penalty for the substantive offence of doing acts in preparation
for a terrorist act contrary to s 101.6(1) of the Criminal Code (Cth) is life
imprisonment. By force of s 11.5(1) that is also the maximum penalty for
conspiracy to commit the substantive offence. Their offence was of a relatively
low order of seriousness and there are significant mitigating circumstances with
respect to each of them justifying determinate sentences of moderate duration.
(1) involving the use of a weapon or weapons which would in the ordinary
course of events cause serious physical harm or death to one or more
persons AND
(2) intended to advance the cause of Islam by violence AND
(3) intended either to:
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8 The jury must be taken to have found that the offenders, at least at some time
during the charge period, agreed with each other to do one or more acts in
preparation for a terrorist act as defined. It was open to the jury to find Bayda
and Namoa guilty on the basis that they agreed to do acts in preparation
without having resolved upon a particular terrorist act.
11 From the early afternoon of 30 December 2015 texts were exchanged between
them concerning an act of violence against non-Muslims which was planned by
Bayda and encouraged by Namoa. She expected Bayda would be killed in this
attack. Bayda’s responses confirmed he was planning an action in which he
expected to die for the sake of Allah. The messages of both offenders were
liberally punctuated with Islamic religious exclamations such as “Alhamdulillah”
(praise to Allah) and “Subhan Allah” (God is perfect).
12 Namoa urged Bayda to proceed and expressed respect for his commitment to
carry out an act which would take him to paradise. In one message Namoa
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14 Bayda and Namoa took part in an Islamic marriage ceremony at about 8:00 pm
on 30 December 2015. From shortly before 7:00 am the next morning they
exchanged more messages to the same effect as those of the previous
afternoon, indicating that Bayda’s proposed act was imminent. Namoa
continued to offer strong encouragement, including more Islamic exclamations
such as “in shaa Allah” (God willing, as spelt by her).
15 At 10:18 am on 31 December 2015 Namoa was with Bayda and entered on his
phone a note of support. She was clearly aware that Bayda planned to act in
company. She wrote:
Be happy i wanna know yous are smiling before yous jump outa the car. No
matter what the outcome is at least you didn’t pull out, do it for our ummah
[Islamic community]. … note to the kuffar, DIE IN YOUR RAGE!! Boom bye
bye
16 During the afternoon and evening of 31 December 2015 Bayda’s messages
indicated hesitation. Namoa continued to encourage him, suggesting that he
and his associates “make dua” (supplication to Allah) and “Go hard fisbilillah”
(in the cause of Allah). She said “Allah will send some kaafirs your way if He
wills for them to come your way”.
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18 The jury’s verdict shows they were satisfied on this evidence that on New
Year’s Eve 2015 Bayda in company with some other young males was
intending to prepare for a violent attack against non-Muslims and that on 30
and 31 December Namoa knew of the proposed attack, agreed with Bayda that
he should carry it out and strongly encouraged him. The evidence before the
jury would not have enabled them to conclude precisely what type of attack
Bayda contemplated or to determine his reasons for not proceeding with it.
Evidence given by Bayda on sentence, summarised below, has satisfied me
that he and his associates intended to carry out a street robbery on non-
Muslims. They did not proceed with the plan because one or more of them
called it off.
20 Evidence in the trial showed that the two offenders spent the night together at
the Novotel, Parramatta on 9 January 2016. On that day illustrated instructions
for stabbing a person with lethal effect and for making a bomb were saved onto
the offenders’ phones. The text of the instructions was in Arabic. In a recorded
interview with police on 25 January 2016 Bayda said he could read Arabic. The
evidence concerning creation dates and access dates for these electronic files
is not sufficient to satisfy me beyond reasonable doubt that any downloading or
reading of these files, or access to them, constituted an additional overt act of
the conspiracy.
21 On the morning of 13 January 2016 police served upon each of the offenders,
at separate locations, weapons prohibition orders issued by the Commissioner
of Police pursuant to the Weapons Prohibition Act 1998 (NSW). Bayda was
served first, after being directed to stop while he was driving to work. He
phoned Namoa from his vehicle and told her to delete all his messages from
her phone. She did this, however the phone seized from her shortly afterwards
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was capable of being examined with forensic software and it yielded the SMS
messages of preceding weeks, some of which have been summarised above.
22 Shortly after serving Bayda, police searched the house where Namoa was
residing. They found in her possession a Tactical brand knife, being a weapon
of approximately 20 cm in overall length. This was in her handbag wrapped in a
shahada flag (that is, a black flag bearing the messages in Arabic “There is no
God but Allah” and “Muhammad is the prophet of God”). Photographs on
Bayda’s phone showed that he had been in possession of the Tactical brand
knife at his home in Guildford at some time before 13 January 2016. It was
open to the jury to infer beyond reasonable doubt that these items were being
held by Namoa for safekeeping pursuant to an arrangement between herself
and Bayda. That is the inference I draw.
25 Bayda said his relationship with Namoa broke up in late November or early
December 2015 and they had little contact, only by phone, from then until
Christmas Day. From 26 December 2015 Bayda and two other young men
planned to carry out “an extremist operation” in the form of a robbery of a
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brothel or a gun store or a bank. The next day they met with a fourth person
and discussed the possibility of starting a bushfire. Bayda said that in al-Qaeda
propaganda that he had read online, crimes such as these were promoted as a
means of causing Western governments to waste taxpayers’ money.
26 Then, Bayda and his associates found on the Internet a suggestion from
jihadists of stabbing or bashing drunk non-Muslims and stealing their money.
Bayda developed the idea of making such an attack on New Year’s Eve and he
acquired a baseball bat as a weapon for this purpose. Bayda said that IS and
al-Qaeda propaganda online deemed such crimes against non-Muslims
“Islamically acceptable”. I do not accept his evidence that he intended to take
part in such an attack “specifically for the money”. That is contradicted
elsewhere in his evidence where he acknowledged religious and ideological
motivation.
28 Bayda said that on 29 December 2015 he told Namoa of his commitment to his
associates to participate in the attack and that they opposed him getting
married because it would cause him to “back out”. Bayda’s explanation of the
text messages summarised at [9_Ref532315570]-[15_Ref534902854] above is
that by 30 December 2015 he had persuaded Namoa he was going to “do an
attack and die”. He said he kept up the pretence of a planned suicide attack “to
manipulate Namoa, try to convince her to marry me”.
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evening Namoa asked him whether he could get out of his commitment to take
part in the attack and he said he could not.
31 Bayda’s description of the events of the night was that he joined one of his
associates at a mosque in Guildford, then drove his van to pick up the other
associate at Bankstown. All three continued in the van to Brighton-Le-Sands
where they drove about the streets looking for isolated, intoxicated non-
Muslims whom they could bash and steal from. They had a baseball bat, which
Bayda had purchased, and two knives. They identified a couple who appeared
to be suitable victims and Bayda pulled over. One of the associates alighted
with the baseball bat but Bayda “froze”. He said:
I was now looking at these two people and at that point reality hit me about
what we were about to do. You know, there was all this boasting about going
out, bashing drunk people and stealing their money; at that point I just couldn’t
get out of the car. I stayed staring at those two people, the male and female. I
just couldn’t get out there and hurt those innocent people.
32 Following this they picked up another associate nearby and proceeded to some
parkland where they attempted to start a fire using petrol in crudely prepared
Molotov cocktails. Then they all went home.
33 Namoa gave evidence that she was told by Bayda on 25 December 2015 that
he and his friends were going to carry out an “operation” on New Year’s Eve.
As already mentioned Bayda says he did not plan this with his friends until 26
December and did not tell Namoa until 27 December. The difference in
evidence about the date does not appear to be important. I do not consider that
it bears upon the credibility of either offender concerning the substance of what
they said to each other.
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34 Namoa said she initially attempted to talk Bayda out of the planned attack and
when this was unsuccessful she gave him encouragement, as appears in the
SMS texts. In oral evidence and in a letter she tendered to the Court (Exhibit
N5) Namoa disputed that there was any conspiracy between herself and
Bayda, including on 30 and 31 December 2015.
36 I accept Bayda’s evidence that he and his friends were inspired by jihadist
propaganda to plan a street attack upon non-Muslims. I do not regard this as
an improbable minimisation of the level of violence intended. Some of the
material on the offenders’ devices urged Muslims to attack and plunder
Western civilians in their own countries in furtherance of their religious duty. An
article entitled “Advice to Those Who Cannot Come to Sham” by Abu Sa’eed
al-Britani encouraged precisely this kind of crime. Another article by al-Awlaki
was entitled “The Ruling on Dispossessing the Disbelievers Wealth in Dar al
Harb”, referring to the sphere of war, meaning anywhere not under Islamic
control. This cited hadith as follows:
The Messenger of Allah said, “I was sent before the hour with my sword, and
my sustenance is under my spear, and humility and belittlement is the destiny
of whoever defies my commands”.
The best and purest form of income is booty. The Messenger of Allah said: “…
and the spoils of war are made halal [lawful] for me …”.
37 Bayda said that the jihadist propaganda he read online encouraged any sort of
violent street crime against non-Muslims. He understood these propagandists
to say:
whoever the target is, is a non-Muslim, they call it to be part of jihad, so they
say you’ll be rewarded by Allah if you do these acts.
38 It follows that I also accept Bayda did not intend to carry out on New Year’s
Eve an attack of a kind likely to lead to his death. I find it plausible in all the
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41 Soon after the Tactical knife had been seized from Namoa on 13 January 2016
Bayda purchased a Schrade knife with a folding blade. He gave evidence that
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he continued to hold his jihadist beliefs at the time of this purchase. There is no
evidence that he tried to give the second knife to Namoa. Bayda’s purchase of
it tends to confirm my conclusion that at all times after 31 December 2015 he
had wished to keep an offensive weapon at his disposal and that he gave the
Tactical knife to Namoa for safekeeping for himself, not for her protection. The
purchase of the Schrade knife was not an act in furtherance of the conspiracy. I
accept Namoa’s evidence that Bayda did not consult her about buying it and
that as soon as she found he had it she disposed of it.
44 Bayda gave this evidence regarding the teaching he received from these two
instructors at Bukhari House:
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45 He said that he was shown by these two men “verses about jihad in the Quran”
and they told him the history of the Prophet and his companions and “spoke
about the violent activities that they did”. He said “they spoke about how evil
democracy is” and supported what they said by reference to the Quran and
other Islamic scriptures. When Bayda subsequently read IS and al-Qaeda
propaganda online he found it consistent with what he had been taught at
Bukhari House.
46 Bayda left school in 2014 when he was 17. In early 2014 he was still attending
Bukhari House but, on his own account, he was “beginning to distance
[himself]” from the men who had instructed him in jihadism. He said “they
weren’t too happy about that and they would try to keep me away from my high
school friends”. He ceased contact with these Islamic instructors from August
2014.
48 Bayda was watching jihadist videos quite extensively in June, July and August
2015. This developed into sharing jihadist ideas with his friends, in person and
online, from early December 2015 and then a desire to undertake his own
violent action against non-Muslims by the end of that month. One of the
associates with whom he was talking about jihad from early December and
who went out with him looking for victims on New Year’s Eve was a young man
he had met at Bukhari House.
being the extremely impulsive and curious 14½-year-old girl that I was I
wanted to try something new, so, I became Muslim overnight.
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50 I infer that at least one of these street preachers actively supported jihad.
According to Namoa the woman’s husband was subsequently killed while
fighting in Syria and the woman herself was later killed there. Namoa said she
initially followed Islam for only about three months, then reverted to attending
Mass in accordance with her Catholic upbringing. She came back to Islam in
late 2014 but not seriously. She continued “clubbing and binge drinking”. From
about early 2015 she practised Islam to the extent of observing daily prayer
rituals and covering her hair and face.
I got into propaganda first and then learnt the fundamentalist ideology through
other Muslims on social media which I then followed being the only thing I’ve
seen widespread online which was always labelled as the path of Islam.
Following that I learnt the basics of Islam, such as the prayer and ablution in
September 2015.
I acknowledge that I was a fanatic and that I’ve accessed a substantial amount
of Islamic State propaganda, as well as downloading various books and
documents onto my phone.
52 Namoa’s fanaticism at around the charge period is well illustrated in a letter
she wrote on 5 February 2016 addressed to Bayda. He had been charged
more than a week earlier and was in custody. Namoa was on notice that she
was going to be questioned by authorities. In this letter she rejected Australian
laws and law enforcement authorities, saying “Allah is my legislator”. She
spoke of having no interest in life on earth and desiring only death and
paradise.
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(1) All non-Muslims, being people who do not accept Allah as the one God
and Muhammad as his Prophet or Messenger, are the enemies of Allah.
(2) It is a Muslim’s obligatory religious duty to wage jihad against (that is,
make war upon) all non-Muslims everywhere, including civilian
populations in the West.
(3) The obligation of jihad against non-Muslims is never-ending until Islam
has been imposed universally and non-Muslims everywhere have
submitted.
57 By way of encouragement of attacks on non-Muslim civilians and governments
in the West the propaganda represents that Muslims generally are under
attack. No substantiation of this supposedly general attack is offered and the
passages from the Quran relied upon are not expressed in defensive terms but
call for forcible imposition of Islam as an imperial project. The propaganda
urges Muslims in the West to engage in terrorism upon the premise that their
loyalty to Islam is higher than any loyalty to the nations in which they live, that
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they are residing amongst an enemy and that their religious obligation to
dominate non-Muslims by force displaces the mutual obligations of citizenship
under Western laws.
58 I am satisfied beyond reasonable doubt that each of the offenders read and/or
viewed sufficient of the jihadist material on their phones and other devices to
understand this divine command for attacks on innocent Western civilians. In
their evidence on sentence neither of them disputed that at the time they
understood and accepted that message.
8:39 Fight them until there is no fitnah [disbelief] and [until] the
religion, all of it, is for Allah.
8:60 And prepare for them what you can of strength and steeds of
war that you may terrorise with it the enemy of Allah and your enemy.
4:84 So fight, [O Muhammad], in the cause of Allah; you are not held
responsible except for yourself. And encourage the believers [to join
you] that perhaps Allah will restrain the [military] might of those who
disbelieve. …
61 Al-Awlaki’s essay, which is part of the evidence tendered to the jury, also
quotes sayings of the Prophet to similar effect, such as the following (from two
collections of Hadith):
The [Prophet] said: “I was instructed to fight mankind until they testify that
there is no one worthy of worship except Allah, and that Muhammad is the
Messenger of Allah, they establish Salah [prayer] and they pay Zakah [tax on
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wealth for alms]. Whoever does so have protected from me his blood and his
wealth.
62 The Crown’s witness, Dr Rodger Shanahan, gave evidence before the jury that
in Islam the Quran:
2:216 Jihad is ordained for you though you dislike it, and it may be that you
dislike a thing which is good for you and that you like a thing which is bad for
you. Allah knows but you do not know.
9:5 And when the Sacred months have passed, then kill the polytheists
wherever you find them … .
9:29 Fight against those who believe not in Allah, nor in the Last Day, nor
forbid that which has been forbidden by Allah and His Messenger and those
who acknowledge not the religion of truth among the people of the Scripture
[Jews and Christians], Until They Pay the Jizyah [poll tax] with willing
submission, and feel themselves subdued.
9:33 It is he who has sent his Messenger [Muhammad] with guidance and the
religion of truth, to make it superior over all religions even though the
mushrikun [polytheists, pagans, idolaters, unbelievers] hate it.
9:73 O Prophet fight against the kuffar and the munafiqin [hypocrites] and be
harsh upon them.
9:123 Fight those adjacent to you of the kuffar and let them find in you
harshness.
64 An article in one issue of Dabiq, tendered from Bayda’s electronic storage, was
entitled “Islam is the Religion of the Sword not of Pacifism”. It contains this
argument:
Allah has revealed Islam to be the religion of the sword, and the evidence of
this is so profuse that only a zindiq (heretic) would argue otherwise.
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The article proceeds to quote from the Quran, including some of the verses set
out above, and the following (being part of 47:4):
So when you meet those who disbelieve, strike their necks until, when you
have inflicted slaughter upon them, then secure their bonds, and either [confer]
favour afterwards or ransom [them] until the war lays down its burdens.
65 The jihadist propaganda on Bayda’s laptop and hard drive (particularly the IS
and al-Qaeda magazines) also relies upon the Prophet’s example of waging
religious war in the 7th Century. The articles invoke the duty of Muslims to
follow the Prophet’s example in all things as a central tenet of Islam. Writings of
other Islamic scholars, ancient and modern, are quoted to substantiate that the
war-making of IS in the Middle East against everyone except Sunni Muslims
and the extension of this violence against Western communities are the
fulfilment of all Muslims’ religious duty.
for people to travel to build the Islamic State, at the same time they were also
telling people who … were unable to travel there that they could also
contribute to Islamic State by conducting attacks in their home locations.
68 Dr Shanahan described Islam as a legal and political system not limited to
religion in the spiritual and personal sense:
Islam is supposed to be not just a religion but a total system of life, so for any
total system of life you need a legal framework. … Islamic law as we know it,
or the Sharia, provides guidance for how you are supposed to live your life in
the way in which God willed you to do that. … [W]ithin Islamic law, different
weight is given to different sources of Islamic law. Obviously the most weight is
given to the Quran because that is the literal word of God, but that doesn’t give
complete guidance for how people should live their lives. So in those vast
areas that it doesn’t mention, … you take your guidance off what are known as
the hadith, and the hadith are the actions or the sayings of the Prophet
Muhammad and his companions.
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He had done some formal Islamic training, allegedly in Saudi Arabia but
definitely in Yemen. … He was a very good orator and he had formal Islamic
legal qualifications. …
[P]eople who have been attracted to Islamic State have downloaded al-
Awlaki’s speeches, because he talks about the same kind of things that all
jihadist groups talk about, about your personal religious obligation to attack the
West.
70 Dr Shanahan gave evidence about a publication on the offenders’ phones
dated 20 December 2015 entitled “Advice to Those Who Cannot Come to
Sham” (meaning, broadly, Syria and Lebanon). Dr Shanahan said:
the idea of this online book was things that you could do to assist Islamic State
if you weren’t physically able to travel there, and it gave religious justifications
for those actions. They [included] killing people in the non-Muslim lands in
which you live … .
The offenders’ culpability for religious fanaticism
71 There is no suggestion in the evidence or in the arguments put on behalf of the
offenders that the commission of this offence was induced in any degree by
social or economic marginalisation or by any reaction to police vigilance and
enforcement activities with respect to terrorism. The offenders simply adopted
a fanatical Islamic hostility toward non-Muslims and toward Australia’s liberal
democratic society in accordance with religious instruction they received, both
directly and on-line.
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73 In the belief of the propagandists, shared by Bayda and Namoa at the time of
their offence, violence toward non-Muslims is not merely an incidental tactic for
attracting attention to the faith or to issues which concern its followers. Relying
upon the parts of the Quran which they cite and upon the example set by the
Prophet, the ideology espoused in the online jihadi literature embraces never-
ending war against non-believers as an inherent and central element of belief.
This ideology elevates violence to the performance of a religious duty and an
act of devotion.
74 Section 93Z(1)(b) of the Crimes Act 1900 (NSW) came into force on 13 August
2018. It is in these terms:
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76 Although Australian citizens are not subject to penalty for their choice of belief
by which to relate to God, teaching a divine duty of violence against non-
Muslims is not within the law’s protection. It goes beyond personal religious
experience and counsels criminal breaches of the peace. The whole concept of
inclusive tolerance would be destroyed if respect and protection were accorded
to beliefs that are themselves violently intolerant and that conflict with secular
laws designed to secure diverse freedom of worship for all.
77 Even at 18 and irrespective of their knowledge of the law Bayda and Namoa
should have understood that their belief in Allah’s instruction to attack everyone
who has a different religion from their own and to seek to impose Islam by
force would stand condemned by the standards of the civilised world. It should
have been apparent to both of them that citing verses of the Quran and
recounting deeds of the Prophet from 1400 years ago could not make such a
purported divine command acceptable as a religious concept, according to
reason and human decency.
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rely are not binding commands of Allah, it is Muslims who would have to say
so. If Australian followers of the religion, including those who profess deep
knowledge, were to make a clear public disavowal of these verses, as not
authoritative instructions from Allah, then the terrorists’ moral conviction might
be weakened.
79 The incitements to violence which terrorists quote from the Quran cannot just
be ignored by the many believers who desire harmonious coexistence. Those
verses are not ignored by terrorists. As seen in this and numerous other
prosecutions, the hostile verses are inspiring serious crimes. In turn those
crimes have the capacity to provoke social division and mistrust.
82 Consequent upon these events Bayda has been in isolated custody since mid-
2017. He said in evidence that he was depressed and suicidal, without any
religious faith, from May 2017 to June 2018 and that he then turned to
Christianity. I have insufficient evidence from which to be satisfied on the
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83 Bayda gave evidence that he has abandoned Islam altogether because he has
ceased to believe in Allah’s command of violence and he does not consider the
religion as a whole can be separated from that concept. Bayda described
salafists as people who “take the [Quran] literally and they want to live exactly
as Muhammad, the way Muhammad [lived]” including, he said, following the
instruction of Allah for violent domination of people of other faiths. Bayda said
that he understood the overwhelming majority of Sunni Muslims are not
salafists but are, in his terms, “moderate”. He then gave the following answers:
Q And when they’re not Salafists then how do Sunni Muslims who aren’t
following that Salafist approach, how do they treat the word of Allah, which you
say is in the Quran, that they should, and are [under] a duty as Muslims [to],
fight and subjugate people of other faiths? How do they reconcile not doing so
with their belief and acceptance of the Quran?
A Well they don’t, they don’t reject it.
Q They don’t reject those parts of the Quran?
A They don’t reject it. They just, I would say, ignore it.
Q They ignore it?
A Yes.
84 I see no reason to doubt that Bayda holds these views sincerely. It is entirely
credible that his parents should not have found in Islam the violent intolerance
of non-Muslims to which Bayda was introduced at Bukhari House and online.
His father was brought up in Lebanon, speaks only Arabic after 18 years in
Australia and no doubt works and socialises with others of similar background.
According to Bayda his father does not possess a Quran or attend a mosque.
He may never have had any occasion to inquire what Islam has to say about
people of other faiths. Bayda on the other hand has inquired. He has
encountered the differences between Australia’s liberal society and the
teachings of Islam. Learned instructors in the religion have taught him, from the
Quran and from the example of the Prophet as they recount it, that it is a
Muslim’s religious duty to resolve the differences with violence.
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Q But in any event whatever view may be taken of your sincerity with respect
to the Christian religion you maintain, do you, that you have renounced Islam?
A Yes.
Q That you disavow what you understand to be the teaching of the Quran,
that hostility, intolerance and violence should be exhibited towards
unbelievers?
A Yes.
Q You do not accept those commandments from Allah, as you understand
them to be in the Quran, as valid, and really as the word of God?
A That’s correct.
Q You don’t?
A No.
87 Bayda said that “according to Sharia law a person who leaves Islam is called
an apostate and the punishment is to be crucified”. I consider it credible and
realistic that he should fear physical retribution for renouncing his religion. He
has described a serious assault and threats within the prison system in May
2017 as a result of disclosing his loss of faith. His understanding that sharia
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Namoa’s background
88 Namoa was born in Sydney and attended primary school with Bayda but they
were at separate schools during high school years. She has four older
brothers, an older sister, a twin brother and a younger brother. Namoa had
learning difficulties in primary school which increased in high school. She
became, by her own account, angry and aggressive. This progressed to
depression and symptoms of generalised anxiety disorder. Behavioural
problems prevented her completing her final year of high school and she left at
16. Year 9 was the highest level she attained satisfactorily.
89 Dr Furst, whose report was tendered on her behalf, gained the impression that
Namoa’s cognitive function is well below average. She told Dr Furst that during
her childhood and teens she was exposed to violence, both within her family
home and in the neighbourhood. This does not appear to be presently relevant
except to the extent it may explain her behavioural and emotional dysregulation
at school. Her only working experience has been two months in a cafe in the
Sydney central business district in 2013.
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93 Letters written by Namoa from prison during March and April 2016 show her
Islamic fanaticism continuing unabated. They show her lack of insight, at that
time, regarding the wrongfulness of encouraging Bayda, on 30 and 31
December 2015, to carry out what she expected to be a suicide attack on
unbelievers in the name of Allah. The following examples are typical of her
convincing herself she had done nothing wrong:
I still don’t understand why we’re both locked up like animals. We didn’t
do nothing wrong and if reading documents were illegal well I didn’t
know.
I still don’t know what kind of terrorism I was doing.
I cry every night Mum you know how weak I am yet they think I’m a
terrorist. Me and Sam had nothing to do with whatever they think we
were involved in.
I didn’t hurt anyone, how am I more dangerous than a murderer?
94 Namoa’s conduct at the time of her arrest and her letters from prison show her
immaturity, lack of critical judgment and immersion in jihadist thinking. On the
premise she had done nothing wrong her letters of March and April 2016
adopted a posture of righteous victimhood. She issued a stream of
imprecations against the laws and authorities by which she was in custody.
She wrote of herself as a prisoner of conscience, held by oppressors of the
Muslims. She invoked Allah to strike them all down.
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96 Namoa wore a hijab, a scarf covering her hair, throughout the trial in
September 2018, giving the impression that she continued in her Islamic faith.
However she told Dr Furst:
98 In her letter to the Court on sentence Namoa attributed her jihadist Islamic
fanaticism in 2015 and 2016 to teenage immaturity which she says she has left
behind:
[M]y lonely days [in custody on remand] have forced me to realise how much I
regret my childish mistakes. Essentially this time on remand already feels like
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102 Namoa’s evidence that her belief in jihadism was a childish phase from which
she has matured is supported by surrounding circumstances. She has not
studied Islamic scriptures with sufficient thoroughness or understanding to
have acquired from them a deeply embedded intellectual belief in a duty of
religious warfare. I find that she was drawn into acceptance of salafi jihadism at
a superficial and emotional level, as a doctrine that gave her a sense of
belonging to something, a sense of purpose and a channel for expression of
aggressive feelings.
Ms Namoa has a history of mental health problems that have been present
since at least 2010, probably longer, and persisted throughout her late
childhood and teens, including depression, anxiety, emotional dysregulation,
low self-esteem, low self-worth, anger issues, learning difficulties and a level of
cognitive function that appears to be well below average. …
Her history of emotional and behavioural instability, low self-esteem, and low
self-worth were identified by [a clinical psychologist who reported on her in
2011, 2012 and 2016] as factors that made Ms Namoa vulnerable to being
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the only thing I’ve seen widespread online which was always labelled as the
path of Islam.
Objective seriousness of the offenders’ conspiracy: s 16A(2)(a)
105 The gravity with which Parliament regards the offence of conspiracy to do acts
toward preparation and/or planning for a terrorist attack is indicated by the
maximum penalty of life imprisonment. Several aspects of the offence for which
Bayda and Namoa are to be sentenced contribute to an inherent degree of
seriousness. First, all terrorism offences have the propensity to cause
generalised insecurity in the community. Secondly, where the ideological cause
sought to be advanced is that of Islam, the crime involves an intention to
intimidate the Australian public and/or Commonwealth or State governments,
with the objective of destabilising the existing constitutional order. A crime of
this nature is an attack on the framework of government and law.
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106 Thirdly, any individual terrorism offence by which the ideology of Islam is
sought to be advanced is a manifestation of what has become a persistent
disruption of peace and security in the two largest cities of this country.
Although the many individual Islamic terrorists who have been dealt with by the
courts have not all acted in concert with each other, their separate offences
have been unified by the perpetrators’ adherence to a single religious ideology
which has the object of breaking down democratic government and replacing it
with Islamic rule. In R v Khaja (No 5) [2018] NSWSC 238 at [94]-[127] I
summarised the cases of approximately 40 of these jihadists, involved in ten
separate plans over the years 2003-2016 mainly in Melbourne and Sydney.
107 At the date of that judgment (March 2018) the most recent finalised case was R
v Alou (No 4) [2018] NSWSC 221, in which Johnson J dealt with one of the
terrorists who assisted Farhad Mohammad in his murder of Curtis Cheng on 2
October 2015. Since then this Court has sentenced two more of the offenders
involved in that attack: R v Alameddine (No 3) [2018] NSWSC 681 and R v Atai
(No 2) [2018] NSWSC 1797. In R v Abbas [2018] VSC 553 the Victorian
Supreme Court sentenced one of four men who conspired between October
and December 2016 to attack civilians in Federation Square, Melbourne. The
other three have since been convicted. In R v HG [2018] NSWSC 1849 Bellew
J sentenced a 16½-year-old boy who, with a co-offender, had purchased
hunting knives in October 2016 in preparation for an imminent terrorist attack.
108 Taking into account these cases decided during 2018 and the attack by
Hassan Khalif Shire Ali in Bourke Street Melbourne on 9 November 2018, the
total over the past 15 years has now reached approximately 13 plots or actual
attacks involving some 47 jihadists. More such cases are awaiting
determination by the courts. This number of convicted Islamic terrorists whose
offences span 15 years, all inspired by the same ideology and with the same
objective, constitutes a significant phenomenon. This is to be taken into
account in fixing a sentence which provides general deterrence.
109 Notwithstanding the features which make offences of this nature in general
very serious, the particular instance now before the Court has elements which
greatly reduce its objective gravity. The scale of an intended attack is an
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110 From 1 January 2016 to the date of Bayda’s arrest the conspiracy had no
defined objective and was not developing in intensity of planning or in
specification of an objective. On the contrary, in mid-January 2016 the
offenders’ intercepted phone conversations were concerned with romantic,
domestic and employment subjects. I am not satisfied that they were speaking
in code during these conversations or that they were dissembling or
deliberately avoiding more sinister subjects to avoid detection. The intercepts
show no indication of such concealment.
111 The duration of a conspiracy is relevant to its objective seriousness. This one
continued into the first two weeks of January 2016 but there is no evidence
upon which the Court could impute that the offenders’ very limited preparations
of holding the Tactical knife and the shahada flag were accompanied by any
formed intent as to a particular degree of violence or property damage which
would be inflicted. The continuance of the conspiracy after 1 January 2016 had
only a nebulous object of some act of terrorism at some time.
112 An offence of doing acts in preparation for a terrorist act contrary to s 101.6(1)
will not necessarily be of reduced seriousness merely because the planning or
preparation did not reach an advanced stage: R v Lohdi [2006] NSWCCA 360
at [65]–[66], [229], [232]. The same must apply to a conspiracy to commit the
substantive offence. However where a conspiracy is in existence for only two
weeks, where its first objective is abandoned and a replacement is conceived
in only the vaguest terms, these factors support an assessment of a relatively
low order of seriousness.
113 The objective seriousness of this offence is reduced, also, by the relative
superficiality of the offenders’ ideological conviction. Both of them talked the
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114 I have considered a table of sentencing decisions provided by the Crown. This
refers to all the cases I have cited above and those which I summarised in R v
Khaja (No 5). The objective seriousness of each offender’s participation in the
conspiracy in this case was of a significantly lower order than what was proved
in any of those cases. The combination of low order objective seriousness and
mitigating subjective features which were absent from the other cases
(including renunciation of violent ideology) mean that the sentences for Bayda
and Namoa will be significantly shorter than those imposed in the cases cited.
115 The need for incapacitation is often a central consideration in sentencing for
this type of crime but I do not see it as having a significant role for these
offenders. Neither of them has exhibited, either in the commission of this
offence or on other occasions, a strong will to carry through an act of violence.
Neither of them, in my view, remains motivated by jihadist ideology.
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117 With respect to Namoa the part of s 16A(2)(m) which concerns the offender’s
mental condition is relevant. I consider that her history of mental health
problems, described by Dr Furst in the extract from his report at
[102_Ref532997927], materially contributed to her engagement with militant
Islamic ideas and hence to the commission of the offence. In accordance with
the principles stated by McClellan CJ at CL in Director of Public Prosecutions
(Cth) v De La Rosa [2010] NSWCCA 194 at [177], this reduces the need for
specific deterrence and for denunciation. The causal effect of Namoa’s mental
disturbances makes it inappropriate to penalise her at a level which might
otherwise have been called for by way of deterrent to others.
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120 Each offender was drawn into commission of this offence by indoctrination in
Islamic jihadism. Neither has any other background influence or disposition
toward crime. I find both of them genuine in their renunciation of fanatical
beliefs. The need for general and specific deterrence is reduced. The realistic
objective of facilitating rehabilitation is correspondingly more important in
sentencing them. The offenders have expressed remorse and contrition, which
I also find genuine. The public interest will best be served by moderation in
sentencing.
121 Both offenders have at least commenced to develop reason and humanity in
place of blind, submitting belief. The evidence heard since the jury gave their
verdict justifies some confidence that on their return to the community Bayda
and Namoa will show respect for the beliefs of others and for the laws of this
country which protect the freedom of its citizens to pursue personal spirituality
in their own way.
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123 Bayda’s cooperation with authorities has already made his conditions of
custody on remand more onerous than those of most prisoners. This has been
the case for approximately 18 months and will continue until he is released.
Inevitably an offender who cooperates with authorities faces the risk of
retribution and I accept that that is a concern of significance for Bayda.
124 Decisions of the Court of Criminal Appeal have addressed the maximum levels
of sentence reduction which may be allowed for the combination of a plea of
guilty and the provision of assistance. In Z v R [2014] NSWCCA 323 it was
held that when there is no plea of guilty, as in the present case, 25% should
not be regarded as a ceiling on the available reduction. Taking all
considerations into account I will reduce by 20% the sentence which I would
otherwise impose. Of this I attribute 15% to assistance to be provided in the
future.
125 Namoa has cooperated with police to the extent of allowing herself to be
interviewed in custody and answering questions in a manner which the
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responsible officer regards as frank. I do not consider that her compliance with
the police request in this respect warrants specification of a particular discount
but I treat it as reinforcing her expressions of contrition and confirming her
progress in rehabilitation. It contributes to the overall mitigation of her penalty.
Sentences
126 I am satisfied that there is no sentence other than imprisonment appropriate in
all the circumstances of the case. Bayda’s sentence should commence from
the date of his arrest, the whole period on remand to count. Namoa’s sentence
should be accumulated by 1 month on the sentence she has served for
refusing to answer questions in the Australian Crime Commission. There was
in that refusal an additional and distinct element of criminality which warrants a
degree of accumulation, notwithstanding the occasion for her being required to
answer questions arose out of her participation in the conspiracy. Her sentence
will therefore commence from 1 month after her arrest on 23 February 2016,
namely, from 23 March 2016.
127 In each sentence the non-parole period will be fixed at 75% of the head
sentence, in accordance with s 19AG of the Crimes Act. Bayda’s head
sentence would have been 5 years but for his cooperation with law
enforcement authorities. It would have been 4 years and 8 months but for his
future assistance alone.
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