R v. Mohamed

Court	Supreme Court of Victoria, Australia
Case number	[2016] VSC 581
Decision title	Sentencing Decision
Decision date	29 September 2016
Parties	The Queen Amin Mohamed
Categories	Terrorism
Keywords	Attempted Travel, Foreign fighters, Preparatory Acts, Syria, Terrorism
Links	http://www.austlii.edu.au/au/cases/vic/VSC/2016/581.html#fnB8

Summary

On 29 September 2016, Amin Mohamed was sentenced by an Australian court to 5,5 years’ imprisonment for attempting to travel to Syria and fight there. Mr. Mohamed, a New Zealander, was convicted by a jury in October 2016 for booking flights to Turkey, and receiving the contact details of a man who would assist him (and others) getting from Turkey to Syria with the intention of fighting in the ongoing armed conflict there. In this venture, Mr. Mohamed had been assisted by Hamdi Alqudsi, another man convicted earlier in 2016 for assisting seven would-be foreign fighters with travel to Syria. Mr. Mohamed was prevented from undertaking this travel in September 2013 due to the revocation of his passport and will likely face deportation to New Zealand at the end of his imprisonment.

Procedural history

Mr. Mohamed was prevented from boarding a flight on 21 September 2013 due to the cancellation of his passport (para. 21).

On 3 December 2013, Mr. Mohamed was arrested in Sydney (para. 25) and he was subsequently released on bail (para. 32). On 7 January 2014, he was placed in immigration detention where he stayed until his criminal trial commenced in October 2015 (para. 32).

On 13 October 2015, Mr. Mohamed was found guilty by a jury verdict of three counts of doing “an act preparatory to an incursion into a foreign state with the intention to engage in hostile activity in that state” (para. 1).

Legally relevant facts

Mr. Mohamed was born in Somalia in 1990 and migrated to New Zealand in 1998, where he acquired citizenship (paras. 35-36). He undertook both a secondary and tertiary education in New Zealand, and moved to Australia in 2012 (paras. 35-36). Between August 2013 and September 2013, he “began to make arrangements to travel to Syria for the purpose of engaging in hostile activities in that country” (para. 55).

Mr. Mohamed gave notice to his employer that he was leaving his job on 13 September 2013 (para. 12). Phone conversations intercepted as from 5 September 2013 revealed Mr. Mohamed conversing with Hamdi Alqudsi, who was convicted of assisting individuals to travel to Syria in July 2016 and who provided “advice and instruction” to Mr. Mohamed with regard to travelling to Syria (paras. 11-13 and 17-18). During these conversations, some “code words” were used to obfuscate the real content of the phone calls (para. 11). Mr. Alqudsi referred to the “front line”, the battlefield and martyrdom, as well as the need to alter the appearance of the would-be travellers to avoid detection in some of the conversations (paras. 15 and 17). Mr. Mohamed reported about who was travelling to Syria and on the progress of their travel plans to Mr. Alqudsi, who then passed the information on overseas (para. 7). In addition to the conversations with Mr. Alqudsi, Mr. Mohamed also conversed with others who wanted to travel to Syria and helped with “organising and coordinating” their own travel arrangements (paras. 6, 11, 16 and 19). During this time, Mr. Mohamed used four telephones, some of which had been registered falsely under other people’s names (paras. 11 and 16).

At trial, Mr. Mohamed argued that he had intended to undertake humanitarian work in Syria, rather than engaging in “hostile activities” (paras. 9 and 14). He further stated at trial that he wanted to travel to Syria to “make the migration for the sake of God” and thus have his previous sins wiped away (para. 26). However, this was rejected by the jury (para. 14).

Mr. Mohamed applied for a New Zealand passport on 6 September 2013 (para. 16). On 19 September 2013, Mr. Mohamed booked flights to Istanbul via Sydney, Brisbane, Singapore and Doha (para. 20). Mr. Alqudsi also provided him with contact details of a man, named “Omar”, who would assist with getting the travellers into Syria (para. 21).

Mr. Mohamed’s new passport was cancelled on 19 September 2013 (para. 21). On 20 September 2013, Mr. Mohamed flew from to Sydney from Melbourne, and, on 21 September 2013, he flew from Sydney to Brisbane (paras. 21-22). Upon Mr. Mohamed’s arrival in Brisbane, the Australian Customs Service prevented him from leaving the country due to the cancellation of his passport (para. 22). He subsequently lied to the New Zealand Passport Office about the reasons behind his travel and where he was going (para. 23).

Core legal questions

Taking into consideration the gravity of the crimes, the aggravating and mitigating circumstances, what is the appropriate sentence for Amin Mohamed?

Specific legal rules and provisions

Section 7(1)(a) of the Crimes (Foreign Incursions and Recruitment) Act 1978(Cth)

Section 16A of the Crimes Act 1914(Cth)

Court's holding and analysis

Mr. Mohamed was convicted on three counts of breaching section 7(1)(a) of the Crimes (Foreign Incursions and Recruitment) Act 1978, consisting of three acts:

“1. On 6 September 2013, being a New Zealand citizen, [he] … applied for a New Zealand Passport from Melbourne;

2. On 19 September 2013, from Melbourne, [he] … booked plane tickets for Istanbul and Turkey from where … [he] intended to enter the foreign state of Syria;

3. On 19 September 2013, while in Melbourne [he] … obtained from Hamdi Alqudsi the contact details of ‘Omar’, who was to act as a guide ensuring safe passage for [Mr. Mohamed] … and others from Turkey to Syria” (para. 2).

In view of the jury’s verdict, Justice Lasry decided to sentence Mr. Mohamed “as a person who intended to go to Syria to fight in the conflict, which was going on in that country at that time, and to go to what you regarded as the ‘front line’ and, if necessary, to be a ‘martyr’, which may have involved [his] … death in some form of armed conflict” (para. 29).

Justice Lasry considered Mr. Mohamed’s personal circumstances, noting that he had no previous convictions, no history of violence, strong support from his family, a good educational and work history, and no mental illnesses (paras. 37-38 and 42-43). Moreover, Justice Lasry noted that “the three actions … performed are not of themselves illegal or criminal”, but rather it was Mr. Mohamed’s intentions in Syria that made them criminal (para. 45). Mr. Mohamed’s likely deportation to New Zealand was also considered (paras. 46-48). However, he noted that Mr. Mohamed had failed to acknowledge his “true intention in going to Syria or insight into that intention”, meaning he had not yet accepted responsibility (paras. 37-38 and 42). Accordingly, Justice Lasry was not convinced that Mr. Mohamed had fully renounced his previous desire to travel to Syria (para. 38).

Given the connection with the Mr. Alqudsi’s case, Justice Lasry also examined Mr. Alqudsi’s sentencing decision due to the principle of parity in sentencing (paras. 49-50). As Mr. Alqudsi had been assisting seven men, including Mr. Mohamed, with travel to Syria, Mr. Mohamed argued that therefore, his own sentence should be less (para. 51). In rejecting this argument, Justice Lasry noted that Mr. Alqudsi did not recruit Mr. Mohamed, who volunteered. Nonetheless, Justice Lasry conceded that Mr. Alqudsi had been involved with more people, among other things, and thus that Mr. Mohamed should have a lesser sentence (paras. 51-52).

Finally, Justice Lasry rejected an argument by the Prosecutor that the sentencing principles used for preparatory acts for terrorism offences should be relied upon in this case as “the intention to engage in hostile activities in a foreign state is not the same as an intention to engage in an act of terrorism” (paras. 53-54 and 55). Despite this clarification, Justice Lasry noted that the conduct undertaken “with the intention to engage in hostile activities in Syria … has the potential to affect Australia’s international relations and is obviously contrary to the country’s national security interests” (para. 54).

Accordingly, Mr. Mohamed was sentenced to a total of 5,5 years’ imprisonment, with 3,5 years’ mandatory imprisonment before he is eligible for parole (para. 59).