Date of Judgment: 5 November 2020
Court: District Court of NSW
Partner Agency: Joint Counter Terrorism Taskforce, Sydney
Summary of charges:
Mr Khawaja pleaded guilty to the following two offences:
- attempting to pervert the course of justice in relation to Commonwealth judicial power contrary to s 43(1) of the Crimes Act 1914 (Cth); and
- dishonestly influencing a Commonwealth public official in the exercise of the official’s duties as a Commonwealth public official contrary to s 135.1(7) Criminal Code (Cth).
In sentencing Mr Khawaja for the first offence, the Court took into account two further offences for which he admitted guilt pursuant to s 16BA Crimes Act 1914 (Cth):
- making a false document with the intention to use it to dishonestly induce a person in the person’s capacity as a Commonwealth public official to accept it as genuine and if so accepted, to dishonestly influence the exercise of a public duty or function contrary to s 144.1(1) of the Criminal Code (Cth); and
- doing an act intending to induce a person to be called as a witness in a federal judicial proceeding to withhold true testimony contrary to s 37(3) of the Crimes Act 1914 (Cth).
On 30 August 2018, the Joint Counter Terrorism Taskforce (JCTT) was contacted after a notebook containing incriminating handwritten entries was located. The handwritten entries in the notebook indicated that the author was preparing to engage in, or assist with, a terrorist act. The notebook belonged to Mr Nizamdeen and the relevant entries in the notebook appeared to have been written by him. Mr Nizamdeen was arrested by police and charged with a terrorism-related offence.
Following the receipt of expert evidence which indicated that there was an “inconclusive result” comparing Mr Nizamdeen’s handwriting with the incriminating entries written in the notebook, Mr Nizamdeen was immediately released on bail and the charge pending against him was subsequently withdrawn. Unfortunately, Mr Nizamdeen spent approximately four weeks in custody before his name was cleared.
Subsequent police investigations soon revealed that it was in fact Mr Khawaja who had created the incriminating entries in the notebook and who had provided false information to police intending to incriminate Mr Nizamdeen. On 4 December 2018, Mr Khawaja was arrested by police and charged with offences relating to his conduct in creating the false notebook entries and providing false information to police. He was released on bail subject to conditions which required that he not contact, either directly or indirectly, any prosecution witness, including a witness known as ‘F1’.
On 26 December 2018, Mr Khawaja attempted to contact F1 by providing a letter, addressed to her, to her brother. He was again arrested by police and charged with a further offence arising from that conduct.
During the course of the police investigation, the JCTT discovered that Mr Khawaja had engaged in similar conduct on a previous occasion in 2017. At that time, Mr Khawaja had contacted the then Department of Immigration and Border Protection to allege that another male, known as ‘M1’, held extremist ideology, had gone overseas to undertake weapons training, was in contact with extremist groups overseas and in Australia and intended to travel overseas to fight for an extremist ideological cause. The information provided to the Department by Mr Khawaja on that occasion was also false and he knew it to be so. Mr Khawaja was also charged with an offence relating to his provision of this information.
The Court found that Mr Khawaja’s attempt to pervert the course of justice offence was serious example of this crime. The provision of the false information, in the knowledge that Mr Nizamdeen was already in custody, had the actual effect of extending that custody and thus had a serious, deleterious effect on the administration of justice.
Given the seriousness of the matters contained in the notebook, the Court found that at the time Mr Khawaja created the false entries, he intended for Mr Nizamdeen to be arrested.
A key issue at the sentence hearing was Mr Khawaja’s borderline personality disorder. Evidence regarding Mr Khawaja’s mental illness was given by two forensic psychiatrists. The Court found that Mr Khawaja’s borderline personality disorder had a significant mitigating effect on the sentence because it was causally linked to the offending, lowered the offender’s moral culpability, made the offender an inappropriate vehicle for general deterrence and meant that the sentence would weigh more heavily on him than others. The Court accepted the opinion of one of the forensic psychiatrists that, if Mr Khawaja maintained treatment for his mental illness, he had good prospects of rehabilitation and a low risk of reoffending.
In relation to the false information provided to the Department about M1, the Court found that the serious nature of the allegations which Mr Khawaja made meant that he intended that M1 would be simultaneously under the investigation by both police and immigration authorities.
The Court described Mr Khawaja’s conduct as “unforgivable behaviour” which needed to be denounced unequivocally. The Court noted the ever-present tension in the sentencing process between punishment and rehabilitation and said that whist the sentence imposed involved a “judicial leap of faith” that Mr Khawaja would comply with his undertaking to undergo treatment as directed, the Court found that it was appropriate to take that leap.
The Court imposed an aggregate sentence, after a discount of 25 per cent for Mr Khawaja’s guilty plea, of four years and six months with a non-parole period of two years and six months. The indicative head sentences were as follows:
- For the attempt to pervert the course of justice offence: four years.
- For the dishonestly influencing a Commonwealth public official offence: two years.
Relevant links: Court decision