By Paul Gregoire and Ugur Nedim
A 17 to 18th of December 2014 meeting of some Australian Muslim men in their early 20s was occurring in in the garage of the Regent’s Park family home of Sulayman Khalid, which involved them planning a series of serious terrorist attacks on Sydney’s AFP building and Lithgow Prison.
Later known as the Khalid gang, the six young men – one of whom was only 16 years old – were planning the attacks using pen and paper in the part of the house that served as Khalid’s bedroom. But unbeknownst to them, the AFP counterterrorism unit had been surveilling them.
The AFP and the NSW police conducted a joint raid on Khalid’s bedroom, where they turned up six handwritten documents produced by Ibrahim Ghazzawy, one of which, the “Gorilla Warfare document”, was the subject of a recent case that went before the NSW Court of Appeal (NSWCCA).
“The plan is gorilla warfare,” Ghazzawy set out in the document. “We are going to go to the woods and attack the dogs there. Blue Mountains and the surrounding forests. Who are we going to find there?”
The AFP noted the gang were prone to use code when discussing their terror plans.
Detectives were able to adduce that the gang had discussed the document, as 21-year-old Mohamed Al Maouie added notes to it that amounted to 25 words, which included phrases like: “Hijra out of NSW”, “Army = Buildings”, “Fortresses, Plans etc”, “Own world” and “Start small = HUGE”.
An unequivocal offence
On 19 July 2017, twelve days before the trial was about to commence, Al Maouie pleaded guilty to one count of producing documents likely to facilitate terrorist acts, contrary to section 101.5 of the Criminal Code (Cth). This offence carries a maximum of up to 15 years imprisonment.
In sentencing Supreme Court Justice Geoffrey Bellew found that as part of the series of documents, the content of Gorilla Warfare was “reflective of substantial consideration having been given, not only to the method by which a terrorist attack might be carried out, but also to the target”.
“The fact that what Mohamed wrote amounted to 25 words is not to the point,” his Honour continued. “The assessment of his offending is informed, not by the number of words used, but by the terms of what was said. What was said was unequivocal. It outlined a plan for an attack.”
Justice Bellew handed down a sentence of 9 years imprisonment, with parole set at 6 years and 9 months. In accordance with provisions in the Crimes Act 1914 (Cth), as the crime is classed as a “terrorism offence”, the non-parole period had to amount to three-quarters of the head sentence.
This final sentence also reflected a 10 percent discount provided due to the utilitarian value of his plea of guilt, as well as the fact that his Honour had considered the objective seriousness of the crime to be in “the upper range of seriousness”.
A question of objectiveness
Al Maouie appealed his sentence to the NSWCCA on 9 February this year, based on the one count that the 10 percent sentencing discount didn’t reflect the full utilitarian value that his pleading guilty twelve days prior to trial had.
The Crown conceded the error, and as that necessitated resentencing, it further suggested the appeal court do this in accordance with the rest of the earlier ruling.
However, the Al Maouie legal team contested that the original assessment of objective seriousness shouldn’t be followed.
NSWCCA Justice Ian Harrison considered the findings of the appeals of co-offenders Ghazzawy and Farhad Said, in which then Chief Judge at Common Law Clifton Hoeben had agreed with Justice Bellew in determining these men’s offending to be in the high range of seriousness.
Al Maouie’s lawyer suggested his client’s level of offending was nowhere near as serious as his co-offender’s, some of whom were convicted of conspiring to conduct an attack, and that he’d only contributed 25 words that were “fairly meaningless”.
The legal professional told the court that he would assess it as low-range, but mid-range would be the “absolute top”.
Justice Harrison determined the offending as mid-range, as when compared to the work his co-offenders had put into the same series of documents, which included the AFP Building and the Lithgow Gaol documents, he found Al Maouie’s contribution was “far less significant”.
Harsh custodial conditions
In considering Al Maouie’s plea of guilt, his Honour said, “It was a late plea”. He added, “Even allowing for the need to incorporate the utilitarian value of the applicant’s plea in the assessment of the appropriate discount, I consider that a discount of 10 percent adequately does so in his case.”
The appeals court then considered new evidence in the form of affidavits from Al Maouie’s mother and his solicitor in relation to the conditions the young man had been subjected to whilst in prison from 2015 up until 2021, when he was transferred to the South Coast Correctional Centre.
Up until the transfer, the inmate had been held in the high-risk management unit, where he’d spent about 20 percent of his time in lockdown in his two metres by three metres wide cell. This was extremely difficult, and he was only allowed to have his first close contact visitor last year.
Justice Harrison found that the custodial conditions that Al Maouie was subjected to were “more onerous than those experienced by the general prison population”, so it was “appropriate to take it into account on resentence”.
Release issues for terrorists
On 7 March this year, his Honour ordered Al Maouie’s original sentence to be quashed, and the court resentenced him to 8 years imprisonment with non-parole set at 6 years, which meant it expired towards the end of last December.
But, under section 19ALB of the Crimes Act, a terrorism offender is only to be released on parole under “exceptional circumstances”. And the court did discuss three occasions in which Al Maouie had breached prison rules, with one incident resulting in a 3 month extension of his non-parole.
NSWCCA Justice’s Anthony Payne and Stephen Rothman agreed with their colleague’s orders. Although Justice Rothman stated that he didn’t concede Al Maouie’s words were incomprehensible and nor should they be considered outside of the context of the overall documents.
And in accordance with section 105A.23 of the Criminal Code, the NSWCCA gave the required warning to Al Maouie that because his offending was of a terrorist nature he could be subjected to a continuing detention order, meaning more time in gaol after his sentence is over.
