By Paul Gregoire and Ugur Nedim
Fayez Hatahet travelled to Syria on an Air Jordan flight on 25 September 2012, as he was attempting to secure the release of his brother-in-law, whom he believed was being held by an armed group in that country.
However, on arrival, Hatahet went on to engage in hostile activities with the Free Syria Army: a coalition of rebel groups fighting against the Assad government.
Between 22 October and 10 December 2012, Hatahet posted 15 videos and 10 photos on his Facebook page, which showed him armed with a Kalashnikov or dressed in army camouflage. And two images depicted men with rocket-propelled grenade launchers, while others showed a recoilless anti-tank weapon and an explosion, along with men shooting rifles, signing songs and waving flags.
Hatahet asserted that he went to retrieve his brother-in-law, who had been fighting for Syrian government forces, but after deserting them, he was then taken into custody.
This story was later accepted by the NSW Court of Criminal Appeal (NSWCCA), because Hatahet returned to Syria in 2013, with a ransom amounting to AU$5,000 to secure the release of his brother-in-law, only to then be kidnapped himself, with his family having to pay US$60,000 to secure his release.
The court further considered that Hatahet met with the Free Syrian Army in regard to his brother-in-law, but once with them, he then “enthusiastically” engaged in “a number of hostile activities”, involving loaded rifles, an anti-tank weapon, clearing rubble and once recklessly firing over a wall.
NSWCCA justices further considered that these actions “had the intention of achieving the overthrow, by force or violence, of the Syrian government”, although the said conduct only lasted three weeks.
But despite the limited nature of his offending, when Hatahet came up for parole on 23 August 2023, the Commonwealth attorney general refused to permit conditional release, as related sentencing laws stipulate that an offender convicted of terrorist acts must be refused bail unless ‘special circumstances’ warrant otherwise.
Laws since repealed
Hatahet pleaded guilty to one count of engaging in hostile activity in a foreign country against the government of that country, contrary to section 6(1)(b) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). And he faced a maximum of 20 years imprisonment, as that was the maximum penalty that applied to this crime at the time of its commission.
The maximum penalty applying to the section 6(1)(b) offence was later dropped down to 14 years inside.
However, the Crimes (Foreign Incursions and Recruitment) Act was repealed on 1 December 2014, when the Abbott government passed the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, which provided a new set of laws applying to citizens and residents heading overseas to fight in foreign wars.
Despite Hatahet coming before the courts close to a decade after the repeal of the original Act, he was still charged under the laws that applied during the time of his offending, as this is the established process taken by the NSW court system.
NSW District Court Judge Huw Baker found that general deterrence, or deterring others from the same offending, applied in determining Hatahet’s sentence. But specific deterrence, or deterring the individual from reoffending in a similar manner, was not, as he wasn’t taken into custody until April 2020, which meant it was so long after the fact, he was unlikely to repeat the crimes..
His Honour sentenced Hatahet to 5 years imprisonment, with non-parole set at 3 years. So, he’d first be eligible for parole on 23 August 2023.
This sentence also reflected a 25 percent discount for the utilitarian value of his early guilty plea, which meant the original head sentence before the discount was applied was 6 years and 8 months gaol time.
Unlikely to be conditionally released
Hatahet appealed the severity of his sentence to the NSWCCA on 15 November 2023. He did so based on two grounds.
The first was the failure of the sentencing judge to take into consideration the terrorism offence sentencing laws that leave Hatahet unlikely to receive parole, and the second ground comprised of his already having been refused parole, which meant this was likely to continue until his sentence expired.
Section 19AB of the Crimes Act 1914 (Cth) stipulates that a court must fix a single non-parole period when sentencing for a federal offence, unless one of a number of conditions is triggered, which then allows the court decline to do so.
These conditions include the nature of the offence/s, the offender’s background or if the person is expected to continue to be serving a state or territory sentence at the time of their federal sentence expiring.
If the court determines not to fix a non-parole period, reasons must be given and entered into the court records.
Section ALB of the Crimes Act stipulates that the federal attorney general cannot grant parole unless ‘exceptional circumstances’ are satisfied, if an inmate is a convicted terrorist or the subject of a control order under part 5.3 of the Criminal Code Act 1995 (Cth), which contains terror offences, or the incarcerated individual has been advocating terrorism.
In determining special circumstances, the AG must consider the protection of the community as paramount, while the best interests of the inmate are a primary consideration.
The findings
There were no suggestions that ‘exceptional circumstances’ existed in Hatahet’s case. Indeed, of 53 applications that had been made by inmate’s subject to the conditions of section 19ALB, none had been granted parole.
NSWCCA Acting Justice John Basten found three questions arose from these circumstances: whether a judge could consider declining to fix a non-parole period when section 19ALB was involved, if the judge could take into account the impact of section 19ALB in sentencing and whether an error had been shown in the Hatahet case due to the fact that he was refused parole.
In considering these questions, three principles were invoked: (1) that a sentencing judge doesn’t have to consider unlikelihood of parole due to an executive act, (2) any possibility of deportation on parole should not play a factor in sentencing, and (3) that the conditions incarceration is likely to involve should be a sentencing consideration.
In terms of whether a sentencing judge should take into account that section 19ALB would likely impact a chance of parole, Justice Basten outlined that it should warrant a reduction in sentence, even if the point was not raised during the trial, as that would be an error.
And if a miscarriage of justice is found and resentencing warranted, then the effect of the section 19ALB should then be taken into account.
As the sentencing judge failed to consider the effects that 19ALB could have on Hatahet’s potential to be paroled, his Honour found the appeal had been made out, the original sentence was quashed and the inmate was resentenced to 4 years imprisonment, with non-parole still being set at 3 years, which meant 1 year was knocked off the offender’s overall sentence.
And NSWCCA Justices David Davies and Richard Cavanagh agreed with their colleague’s orders.
