R v. Alqudsi

Court	Supreme Court of New South Wales, Australia
Case number	[2016] NSWSC 1227
Decision title	Sentencing Decision
Decision date	1 September 2016
Parties	Regina Hamdi Alqudsi
Categories	Terrorism
Keywords	Attempted Travel, Foreign fighters, Islamic State, Syria, Terrorism, Travel
Links	https://www.caselaw.nsw.gov.au/decision/57c793c6e4b058596cb9f0e4

Summary

On 1 September 2016, Sydneysider Hamdi Alqudsi was sentenced to 8 years’ imprisonment, with a non-parole period of 6 years, for his involvement in assisting seven fighters to travel to the conflict in Syria. Mr. Alqudsi was convicted by a jury on 12 July 2016 after attempting to argue that he was trying to save lives in Syria. Ultimately, it was found through intercepted communications that he was well aware of what the fighters he helped get to Syria and the Islamic State were doing there. Moreover, Judge Adamson acknowledged that he had been a key player in the movement of fighters from Australia to Syria as he linked those who wanted to travel with another fighter who was already there and had joined a jihadi group.

Procedural history

Mr. Alqudsi was arrested in Sydney in December 2013.

In July 2015, Mr. Alqudsi launched a constitutional challenge concerning the validity of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (Aus) which was ultimately dismissed on 27 August 2015.

His criminal trial began on 23 June 2016 and he was found guilty by a jury verdict on 12 July 2016.

Mr. Alqudsi’s sentencing hearing occurred on 24 August 2016.

Legally relevant facts

Mr. Alqudsi was charged with seven counts of “performing services for persons with the intention of their entering Syria for the purposes of engaging in armed hostilities there” in contravention of the Crimes (Foreign Incursions and Recruitment) Act 1978 (para. 1). These charges related to seven individuals: Tyler Casey, Caner Temel, Mehmet Biber, Muhammad Abdul-Karim Musleh, “Mr. Aboshi”, Amin Iman Mohamed and Nassim Elbahsa (paras. 2-4).

In 2012, Mr. Alqudsi met Mohammad Ali Baryalei, who later travelled to Syria via Turkey where he commenced fighting for anti-government forces by June 2013 (para. 20). Mr. Alqudsi kept in touch with Mr. Baryalei in Syria and, through their conversations, he was informed of the battles Mr. Baryalei participated in and the ongoing fighting (paras. 25-27). He was also informed when Mr. Baryalei joined the Islamic State (para. 53).

Mr. Alqudsi came into contact with Mr. Casey for the second time around April-June 2013 when Mr. Casey expressed his desire to travel to Syria (paras. 19 and 21). Mr. Casey knew Mr. Alqudsi was in touch with Mr. Baryalei and he introduced several of his friends (Mr. Temel, Mr. Biber and Mr. Aboshi) who also wanted to go to Syria to Mr. Alqudsi (para. 21). They began meeting in form of “shura” to discuss how to get to Syria and to organise their travel (para. 22). Mr. Alqudsi met the other men, Mr. Musleh, Mr. Mohamed and Mr. Elbahsa, through various other connections later on (paras. 24, 57 and 73-74).

Mr. Alqudsi would generally get in contact with Mr. Baryalei to inform him of prospective arrivals in Turkey and Mr. Baryalei would meet them or send someone else to meet them (see eg paras. 28-29 and 38-46). In addition, Mr. Alqudsi provided: travel advice to the men with regards to how to get to Syria; instructions for buying SIM cards to keep in contact; information on hotels in Turkey; information for Mr. Baryalei, such as the fighters’ contact details; advice on what to pack; information on currency exchange and the money required; assistance to families back home; information about passports; and advice on how to evade detection (paras. 30, 55, 59, 61-62, 70, and 86-87).

Mr. Casey left for Turkey on 29 June 2013 (para. 35). Mr. Temel, Mr. Biber and Mr. Musleh left on 1 July 2013 (para. 37). Mr. Musleh returned and subsequently tried to leave again on 11 September 2013 (paras. 90 and 93). Mr. Alqudsi also assisted with getting Mr. Aboshi and two other associates into Syria in late July 2013 (paras. 46-48). Mr. Elbahsa left Sydney on 12 October 2013 and was confirmed as being in Syria on 15 October (para. 74). Mr. Mohamed attempted to leave on 19 September 2013 but was stopped at the airport (para. 70).

Mr. Alqudsi continued communicating with those in Syria, including Mr. Baryalei, noting to several that they should not “forget that his jihad is over here as much as theirs is over there” (paras. 48, 52-53). He also described himself as the person in charge on several occasions (paras. 51 and 60).

Back in Australia, Mr. Alqudsi attempted to keep his activities secret. For example, he told family members of the fighters to delete messages and photos from their phones (para. 49) and to remove mentions of his name in connection with photos being circulated (para. 51). He likewise told those in Syria to not send photographs to their wives with guns or weapons (para. 53) and spoke in code to other prospective fighters, including Mr. Mohamed (para. 57).

Core legal questions

Taking into consideration the extent of the support provided and “the need for general deterrence”, what is the appropriate sentence for Hamdi Alqudsi?

Specific legal rules and provisions

Sections 6(1)(a), 6(3)(aa) and 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (Aus).

Court's holding and analysis

The Court found that “[e]ach of the seven offences of which the offender has been convicted formed part of a course of conduct assisting men to go to Syria to fight [and the] offender adopted a relatively standard practice with each of them” (para. 84). Moreover, Mr. Alqudsi played a “significant role in assisting each man to go to Syria to fight” and took on a leadership role (paras. 85-86). Vitally, he provided the link between the men and Mr. Baryalei, who facilitated their entrance into Syria (para. 87). This, in combination with his attempts to keep his activities secret from authorities (para. 96), made the seriousness of the crimes “moderately high” (para. 97).

During the sentencing hearing, Mr. Alqudsi suggested that he was attempting to save lives but ultimately conceded that “he knew what was happening in Syria and what the men he helped send there were going to do” (paras. 102-103).

Judge Adamson also considered that, due “to the seriousness of the offending conduct, the importance of punishing the offender and denouncing his conduct and the need for general deterrence”, imprisonment was appropriate (para. 122).

Mr. Alqudsi was sentenced to 8 years’ imprisonment, with a non-parole period of 6 years (para. 126).

Instruments cited

Crimes (Foreign Incursions and Recruitment) Act 1978(Cth) (Aus). This Act has since been repealed with the provisions altered and then incorporated into the Criminal Code Act.

Related cases

R v Alqudsi; Alqudsi v Commonwealth of Australia [2015] NSWSC 1222 – Constitutional challenge by the accused surrounding the validity of the Crimes (Foreign Incursions and Recruitment) Act.
R v Alqudsi [2015] NSWSC 1615 – Evidentiary challenge concerning the lawfulness of a search warrant.
Alqudisi v R [2015] NSWSC 958 – Application to change bail conditions.
R v. Mohamed [2016] VSC 581 - Sentencing Decision.