Islam and The Quran On Trial in NSW Supreme Court

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Supreme Court
New South Wales
Case Name: R v Bayda; R v Namoa (No 8)
Medium Neutral Citation: [2019] NSWSC 24
Hearing Date(s): 7 and 14 December 2018
Date of Orders: 31 January 2019
Decision Date: 31 January 2019
Jurisdiction: Common Law
Before: Fagan J
Decision: For conspiring to do acts in preparation for or planning

a terrorist act:
Sameh Bayda is sentenced to imprisonment for 4 years

commencing on 25 January 2016 and expiring on 24
January 2020 with a non-parole period of 3 years
expiring on 24 January 2019.
Alo-Bridget Namoa is sentenced to imprisonment for 3

years and 9 months commencing on 23 March 2016
and expiring on 22 December 2019 with a non-parole
period of 2 years and 10 months expiring on 22 January
2019.
Catchwords: CRIMINAL LAW – particular offences – offences and

other matters relating to terrorism – conspiracy to do
act(s) in preparation for terrorist act(s) contrary to
Criminal Code (Cth), ss 11.5, 101.6 – co-offenders
married under Islamic rites – precise nature of intended
terrorist act unclear – where offenders motivated to
commit jihadist act for furtherance of Islam by violence
– sentence following guilty verdicts – objective
seriousness of conspiracy – general deterrence in light
of prevalence of terrorist offending for furtherance of
Islam by jihad – whether offenders have resiled from
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extremist Islamic beliefs – prospects of rehabilitation –

sentences of imprisonment for fixed terms
Legislation Cited: Criminal Code (Cth)

Crimes Act 1914 (Cth)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1998 (NSW)
Weapons Prohibition Act 1998 (NSW)
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa

[2010] NSWCCA 194
Fattal v The Queen [2013] VSCA 276
KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
R v Abbas [2018] VSC 553
R v Alameddine (No 3) [2018] NSWSC 681
R v Alou (No 4) [2018] NSWSC 221
R v Atai (No 2) [2018] NSWSC 1797
R v HG [2018] NSWSC 1849
R v Khaja (No 5) [2018] NSWSC 238
R v Khalid [2017] NSWSC 1365
R v Lohdi [2006] NSWCCA 360
R v XX [2017] NSWCCA 90
RJT v R [2012] NSWCCA 280
Z v R [2014] NSWCCA 323
Category: Sentence
Parties: Regina (Crown)

Sameh Bayda (offender)
Alo-Bridget Namoa (offender)
Representation: Counsel:
N T Robinson QC with B E M Anniwell (Crown)
A Moen (offender Bayda)
C O’Donnell SC (offender Namoa)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Fay Rose Legal (offender Bayda)
Tully & Chiper Lawyers (offender Namoa)
File Number(s): 2016/25204; 2016/58286
Publication Restriction: No
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JUDGMENT
1 On 5 September 2018 Sameh Bayda and Alo-Bridget Namoa were arraigned
on a charge that:
Between about 8 December 2015 and about 25 January 2016 at Sydney in the
State of New South Wales and elsewhere, [they] did conspire with each other
to do acts in preparation for a terrorist act (or acts).
2 Both pleaded not guilty. They were tried over the ensuing 20 days. Verdicts of
guilty were returned against both offenders on 5 October 2018.
3 They were aged 18 years at the time of the conspiracy and are now 21. Bayda
is from a Muslim family of Lebanese background. Religious teachers at a
bookstore and prayer hall taught him militant Islam from about mid-2013, when
he was 15. He became more fanatical in late 2015. Namoa’s parents are of
Tongan origin and are Christian. Namoa was introduced to Islam by two female
street preachers in 2012 when she was 14½. In her own words she was an
Islamic fanatic from mid-2015.
4 Islam was the religion and ideology the offenders intended to advance by the
acts for which they conspired to make preparations. They were in a romantic
relationship on and off from about April 2015 and they went through an Islamic
ceremony of marriage during the charge period.
5 The maximum penalty for the substantive offence of doing acts in preparation
for a terrorist act contrary to s 101.6(1) of the Criminal Code (Cth) is life
imprisonment. By force of s 11.5(1) that is also the maximum penalty for
conspiracy to commit the substantive offence. Their offence was of a relatively
low order of seriousness and there are significant mitigating circumstances with
respect to each of them justifying determinate sentences of moderate duration.
6 What constitutes a terrorist act is defined in s 100.1 of the Criminal Code.

Paraphrasing and abbreviating the definition so far as relevant to this case, a
terrorist act is as an act:
(1) involving the use of a weapon or weapons which would in the ordinary
course of events cause serious physical harm or death to one or more
persons AND
(2) intended to advance the cause of Islam by violence AND
(3) intended either to:
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(a) coerce or intimidate the government of the Commonwealth or

that of New South Wales OR
(b) intimidate the public or a section of the public OR
(c) both (a) and (b).
7 A further statutory criterion of a “terrorist act” is that it should not constitute
mere “advocacy, protest, dissent or industrial action”: see s 100.1(3). That
negative stipulation will in most cases be redundant and it was of no
significance in this case.
8 The jury must be taken to have found that the offenders, at least at some time
during the charge period, agreed with each other to do one or more acts in
preparation for a terrorist act as defined. It was open to the jury to find Bayda
and Namoa guilty on the basis that they agreed to do acts in preparation
without having resolved upon a particular terrorist act.
9 The Crown’s proof of agreement between the offenders was largely

circumstantial and would only have permitted the jury to find the conspiracy in
the broad terms of the charge, not in particular detail. The Court is not so
constrained in making findings for the purposes of fixing their punishment
because both offenders gave evidence in sentence proceedings after the
verdicts had been taken.
Evidence at trial of the conspiracy in SMS texts

10 The conspiracy was apparent from the offenders’ SMS text communications of
30 and 31 December 2015. The messages were recovered, incompletely, from
Namoa’s phone after she had attempted to delete them.
11 From the early afternoon of 30 December 2015 texts were exchanged between
them concerning an act of violence against non-Muslims which was planned by
Bayda and encouraged by Namoa. She expected Bayda would be killed in this
attack. Bayda’s responses confirmed he was planning an action in which he
expected to die for the sake of Allah. The messages of both offenders were
liberally punctuated with Islamic religious exclamations such as “Alhamdulillah”
(praise to Allah) and “Subhan Allah” (God is perfect).
12 Namoa urged Bayda to proceed and expressed respect for his commitment to
carry out an act which would take him to paradise. In one message Namoa
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said she wanted to perform a jihadist attack in concert with Bayda, or to

support him in such an attack, in these words:
I wanna do an Islamic bonnie and Clyde version on the kuffs haha.

13 The term “kuffar” or “kuffs” was frequently used by both offenders as a
contemptuous reference to people who do not follow Islam. I am satisfied
beyond reasonable doubt, as the jury must have been, that these messages on
30 December 2015 concerned an act of violence against non-Muslims which at
that time was planned by Bayda and encouraged by Namoa.
14 Bayda and Namoa took part in an Islamic marriage ceremony at about 8:00 pm
on 30 December 2015. From shortly before 7:00 am the next morning they
exchanged more messages to the same effect as those of the previous
afternoon, indicating that Bayda’s proposed act was imminent. Namoa
continued to offer strong encouragement, including more Islamic exclamations
such as “in shaa Allah” (God willing, as spelt by her).
15 At 10:18 am on 31 December 2015 Namoa was with Bayda and entered on his
phone a note of support. She was clearly aware that Bayda planned to act in
company. She wrote:
Be happy i wanna know yous are smiling before yous jump outa the car. No
matter what the outcome is at least you didn’t pull out, do it for our ummah
[Islamic community]. … note to the kuffar, DIE IN YOUR RAGE!! Boom bye
bye
16 During the afternoon and evening of 31 December 2015 Bayda’s messages
indicated hesitation. Namoa continued to encourage him, suggesting that he
and his associates “make dua” (supplication to Allah) and “Go hard fisbilillah”
(in the cause of Allah). She said “Allah will send some kaafirs your way if He
wills for them to come your way”.
17 At 10:26 pm on 31 December 2015 a photograph of Bayda was taken on his

phone, showing him in the driver’s seat of his van dressed entirely in black,
including a head covering and a scarf over the lower part of his face, tied
behind his head. The effect was to leave only his eyes showing. The
photograph depicts Bayda making the one fingered salute used extensively in
propaganda of the Islamic State (“IS”) to signify the oneness of Allah according
to Islam. The photograph was sent to Namoa’s phone.
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18 The jury’s verdict shows they were satisfied on this evidence that on New
Year’s Eve 2015 Bayda in company with some other young males was
intending to prepare for a violent attack against non-Muslims and that on 30
and 31 December Namoa knew of the proposed attack, agreed with Bayda that
he should carry it out and strongly encouraged him. The evidence before the
jury would not have enabled them to conclude precisely what type of attack
Bayda contemplated or to determine his reasons for not proceeding with it.
Evidence given by Bayda on sentence, summarised below, has satisfied me
that he and his associates intended to carry out a street robbery on non-
Muslims. They did not proceed with the plan because one or more of them
called it off.
Evidence at trial of offenders’ activities in January 2016

19 Police obtained telephone intercept warrants for the mobile phone services of
both offenders on 9 January 2016. SMS and voice communications were
intercepted from then up to the arrest of Bayda on 25 January 2016. The
intercepted communications do not reveal any further planning of a terrorist
attack or discussion of preparations during January.
20 Evidence in the trial showed that the two offenders spent the night together at
the Novotel, Parramatta on 9 January 2016. On that day illustrated instructions
for stabbing a person with lethal effect and for making a bomb were saved onto
the offenders’ phones. The text of the instructions was in Arabic. In a recorded
interview with police on 25 January 2016 Bayda said he could read Arabic. The
evidence concerning creation dates and access dates for these electronic files
is not sufficient to satisfy me beyond reasonable doubt that any downloading or
reading of these files, or access to them, constituted an additional overt act of
the conspiracy.
21 On the morning of 13 January 2016 police served upon each of the offenders,
at separate locations, weapons prohibition orders issued by the Commissioner
of Police pursuant to the Weapons Prohibition Act 1998 (NSW). Bayda was
served first, after being directed to stop while he was driving to work. He
phoned Namoa from his vehicle and told her to delete all his messages from
her phone. She did this, however the phone seized from her shortly afterwards
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was capable of being examined with forensic software and it yielded the SMS
messages of preceding weeks, some of which have been summarised above.
22 Shortly after serving Bayda, police searched the house where Namoa was
residing. They found in her possession a Tactical brand knife, being a weapon
of approximately 20 cm in overall length. This was in her handbag wrapped in a
shahada flag (that is, a black flag bearing the messages in Arabic “There is no
God but Allah” and “Muhammad is the prophet of God”). Photographs on
Bayda’s phone showed that he had been in possession of the Tactical brand
knife at his home in Guildford at some time before 13 January 2016. It was
open to the jury to infer beyond reasonable doubt that these items were being
held by Namoa for safekeeping pursuant to an arrangement between herself
and Bayda. That is the inference I draw.
23 From 30 December 2015 Namoa was in agreement with and expressly

supported Bayda’s intention to carry out a terrorist act. It was an agreement
which looked beyond the aborted New Year’s Eve attack, as shown by
Namoa’s message that she wanted to carry out an attack “on the kuffs”
together with Bayda. The evidence concerning possession of the knife and flag
established overt acts pursuant to this agreement. It is implicit in the jury’s
verdict that they found the agreement subsisted from 30 December 2015 at
least to 13 January 2016.
Offenders’ evidence of events on New Year’s Eve 2015

24 In the sentence proceedings both Bayda and Namoa gave evidence. This
qualified the picture that had emerged before the jury at trial, where no
evidence was called in the defence case. On sentence Bayda described his
actions on New Year’s Eve 2015 and both offenders offered explanations of
the SMS texts between them on 30 and 31 December. I apply the civil standard
of proof to determine whether Bayda’s acts and plans on New Year’s Eve 2015
were as limited as he has now asserted.
25 Bayda said his relationship with Namoa broke up in late November or early
December 2015 and they had little contact, only by phone, from then until
Christmas Day. From 26 December 2015 Bayda and two other young men
planned to carry out “an extremist operation” in the form of a robbery of a
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brothel or a gun store or a bank. The next day they met with a fourth person
and discussed the possibility of starting a bushfire. Bayda said that in al-Qaeda
propaganda that he had read online, crimes such as these were promoted as a
means of causing Western governments to waste taxpayers’ money.
26 Then, Bayda and his associates found on the Internet a suggestion from
jihadists of stabbing or bashing drunk non-Muslims and stealing their money.
Bayda developed the idea of making such an attack on New Year’s Eve and he
acquired a baseball bat as a weapon for this purpose. Bayda said that IS and
al-Qaeda propaganda online deemed such crimes against non-Muslims
“Islamically acceptable”. I do not accept his evidence that he intended to take
part in such an attack “specifically for the money”. That is contradicted
elsewhere in his evidence where he acknowledged religious and ideological
motivation.
27 When Bayda recommenced communications with Namoa on Christmas Day

2015 he understood she had become interested in another man. Subsequent
to the above discussions with his associates, on 27 December 2015 he asked
Namoa to marry him. She said they should “take it slow and see how things go”
but he wanted to pressure her to agree, to pre-empt his rival. He claims that in
those circumstances he told her “if you do not marry me, I am going to do an
attack and die”. Bayda said in evidence he had no such intention but said this
to Namoa “to try and convince her to marry me and not the [other] guy”.
28 Bayda said that on 29 December 2015 he told Namoa of his commitment to his
associates to participate in the attack and that they opposed him getting
married because it would cause him to “back out”. Bayda’s explanation of the
text messages summarised at [9_Ref532315570]-[15_Ref534902854] above is
that by 30 December 2015 he had persuaded Namoa he was going to “do an
attack and die”. He said he kept up the pretence of a planned suicide attack “to
manipulate Namoa, try to convince her to marry me”.
29 According to Bayda’s evidence this resulted in Namoa agreeing, in the mid-

afternoon of 30 December 2015, to marry him. Bayda promptly arranged an
Islamic marriage ceremony for that evening. Independent evidence clearly
establishes that the ceremony took place. Bayda has said that late in the
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evening Namoa asked him whether he could get out of his commitment to take
part in the attack and he said he could not.
30 On Bayda’s evidence he and Namoa went to a mosque together at around

10:00 am on 31 December 2015. At that time she entered on his phone the
message quoted at [14_Ref532316421] and told him not to read it “until before
you go out”, apparently meaning immediately before the proposed attack. In
evidence Bayda explained his text messages to Namoa during the rest of 31
December, continuing into the evening, as an attempt to maintain the pretence
that he was embarking upon a suicide attack, despite his real feelings that now
he had secured marriage to Namoa he had no interest in even the limited
street crime which had been planned for that night.
31 Bayda’s description of the events of the night was that he joined one of his
associates at a mosque in Guildford, then drove his van to pick up the other
associate at Bankstown. All three continued in the van to Brighton-Le-Sands
where they drove about the streets looking for isolated, intoxicated non-
Muslims whom they could bash and steal from. They had a baseball bat, which
Bayda had purchased, and two knives. They identified a couple who appeared
to be suitable victims and Bayda pulled over. One of the associates alighted
with the baseball bat but Bayda “froze”. He said:
I was now looking at these two people and at that point reality hit me about
what we were about to do. You know, there was all this boasting about going
out, bashing drunk people and stealing their money; at that point I just couldn’t
get out of the car. I stayed staring at those two people, the male and female. I
just couldn’t get out there and hurt those innocent people.
32 Following this they picked up another associate nearby and proceeded to some
parkland where they attempted to start a fire using petrol in crudely prepared
Molotov cocktails. Then they all went home.
33 Namoa gave evidence that she was told by Bayda on 25 December 2015 that
he and his friends were going to carry out an “operation” on New Year’s Eve.
As already mentioned Bayda says he did not plan this with his friends until 26
December and did not tell Namoa until 27 December. The difference in
evidence about the date does not appear to be important. I do not consider that
it bears upon the credibility of either offender concerning the substance of what
they said to each other.
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34 Namoa said she initially attempted to talk Bayda out of the planned attack and
when this was unsuccessful she gave him encouragement, as appears in the
SMS texts. In oral evidence and in a letter she tendered to the Court (Exhibit
N5) Namoa disputed that there was any conspiracy between herself and
Bayda, including on 30 and 31 December 2015.
Conclusion regarding events on New Year’s Eve 2015

35 I accept on the balance of probabilities that Bayda’s activities on New Year’s
Eve were substantially as he described them. Essentially the three young men
set out to commit a robbery in company with violence. Whether it was Bayda
only who drew back from commission of the offence or whether this came from
his associates as well, the fact is that no such robbery took place. The Crown
did not suggest otherwise.
36 I accept Bayda’s evidence that he and his friends were inspired by jihadist
propaganda to plan a street attack upon non-Muslims. I do not regard this as
an improbable minimisation of the level of violence intended. Some of the
material on the offenders’ devices urged Muslims to attack and plunder
Western civilians in their own countries in furtherance of their religious duty. An
article entitled “Advice to Those Who Cannot Come to Sham” by Abu Sa’eed
al-Britani encouraged precisely this kind of crime. Another article by al-Awlaki
was entitled “The Ruling on Dispossessing the Disbelievers Wealth in Dar al
Harb”, referring to the sphere of war, meaning anywhere not under Islamic
control. This cited hadith as follows:
The Messenger of Allah said, “I was sent before the hour with my sword, and
my sustenance is under my spear, and humility and belittlement is the destiny
of whoever defies my commands”.
The best and purest form of income is booty. The Messenger of Allah said: “…
and the spoils of war are made halal [lawful] for me …”.
37 Bayda said that the jihadist propaganda he read online encouraged any sort of
violent street crime against non-Muslims. He understood these propagandists
to say:
whoever the target is, is a non-Muslim, they call it to be part of jihad, so they
say you’ll be rewarded by Allah if you do these acts.
38 It follows that I also accept Bayda did not intend to carry out on New Year’s
Eve an attack of a kind likely to lead to his death. I find it plausible in all the
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circumstances that he exaggerated to Namoa the nature of what he was

planning. Bayda made excitable phone calls to Namoa and to his mother on 13
January 2016 when the weapons prohibition orders were served, illustrating his
capacity for histrionics. Namoa’s induction into Islam and Dr Furst’s report on
her education and psychology show that she was naïve and suggestible.
Namoa’s evidence on sentence and her demeanour in the witness box have
left me with the impression she could well have been taken in by false boasting
from Bayda that he was on a suicide mission.
39 I am not satisfied on the balance of probabilities that Namoa initially tried to

discourage Bayda. There is no hint of this in the texts, which were exchanged
in high volume on the relevant days. In any event, whatever her initial reaction
may have been, it is apparent Namoa offered encouragement during 30 and 31
December 2015 and clearly agreed with Bayda in the making of preparations
for a terrorist act. The fact that she envisaged he might carry out on New
Year’s Eve an attack of greater scale than in fact he actually intended is not
inconsistent with the jury’s finding that there was a conspiracy between them
as charged.
Conclusions regarding the Tactical and Schrade knives

40 In the sentence proceedings Bayda said, and I accept, that the Tactical brand
knife later seized at Namoa’s house was one of the weapons carried with him
and his associates in his van on New Year’s Eve 2015. I do not accept his
evidence that when he gave possession of the knife to Namoa in early January
2016 this was at her request for her own protection. Namoa gave evidence on
sentence that she asked Bayda for the weapon as a result of an attempted
sexual assault upon herself when attending a club. She may have been subject
to an unwanted sexual approach at some time but I do not find it credible that
in early January she was imminently expecting to face another such
confrontation. I am not persuaded on the balance of probabilities that this 18-
year-old female would arm herself with a weapon such as this knife for the
purpose she asserts.
41 Soon after the Tactical knife had been seized from Namoa on 13 January 2016
Bayda purchased a Schrade knife with a folding blade. He gave evidence that
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he continued to hold his jihadist beliefs at the time of this purchase. There is no
evidence that he tried to give the second knife to Namoa. Bayda’s purchase of
it tends to confirm my conclusion that at all times after 31 December 2015 he
had wished to keep an offensive weapon at his disposal and that he gave the
Tactical knife to Namoa for safekeeping for himself, not for her protection. The
purchase of the Schrade knife was not an act in furtherance of the conspiracy. I
accept Namoa’s evidence that Bayda did not consult her about buying it and
that as soon as she found he had it she disposed of it.
Bayda’s background and induction into jihadism

42 Bayda was born in Australia. His father migrated here from Lebanon. His
mother was born in this country. Bayda’s parents did not give much attention to
religion during his upbringing. He describes them as “moderate” which he
explained as meaning that they observed private and personal aspects of the
religion such as praying and fasting but did not evince hostility to people of
other faiths or to Australia’s non-Islamic laws. There is nothing to suggest that
the jihadist ideas Bayda held in 2015 and 2016 came from, or were in any way
supported by, his parents.
43 Bayda said he received no instruction in Islam in his youth, either at home or

elsewhere. Then in the first half of 2013, at the age of 15, he commenced to
attend Bukhari House, an Islamic bookstore and prayer meeting room in
Auburn. At about the same time he began to listen to lectures and sermons on
the Internet which promoted salafist doctrine. In his evidence he described
salafists as those who “take the Quran literally and they want to live exactly as
Muhammad, the way Muhammad lived”, including violent subjugation of non-
Muslims. Bayda said that during a 10 day period over which he slept at Bukhari
House in July 2013 he was instructed by two men in their late 20s who
“believed in jihad … so they followed like same beliefs as ISIS, al-Qaeda”.
44 Bayda gave this evidence regarding the teaching he received from these two
instructors at Bukhari House:
I looked at them as very knowledgeable in the religion … they were teaching

me about this whole new ideology and this whole new way to look at Islam … I
started to … view [ISIS and al-Qaeda propaganda] online because this is what
I was taught by them boys and this was at the time what I understood to be …
the right interpretation of Islam.
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45 He said that he was shown by these two men “verses about jihad in the Quran”
and they told him the history of the Prophet and his companions and “spoke
about the violent activities that they did”. He said “they spoke about how evil
democracy is” and supported what they said by reference to the Quran and
other Islamic scriptures. When Bayda subsequently read IS and al-Qaeda
propaganda online he found it consistent with what he had been taught at
Bukhari House.
46 Bayda left school in 2014 when he was 17. In early 2014 he was still attending
Bukhari House but, on his own account, he was “beginning to distance
[himself]” from the men who had instructed him in jihadism. He said “they
weren’t too happy about that and they would try to keep me away from my high
school friends”. He ceased contact with these Islamic instructors from August
2014.
47 In September 2014 Bayda sat an entrance examination for the Australian

Defence Force but failed mathematics. He enrolled at TAFE in early 2015 to
attain a higher level of education. However in the first half of 2015 he turned to
heavy cannabis use and then to selling cannabis to pay for his consumption.
This led to abandonment of his further education. He took up work with his
father as a painter from June 2015. In November he purchased a van, obtained
a contractor’s license and commenced his own painting business.
48 Bayda was watching jihadist videos quite extensively in June, July and August
2015. This developed into sharing jihadist ideas with his friends, in person and
online, from early December 2015 and then a desire to undertake his own
violent action against non-Muslims by the end of that month. One of the
associates with whom he was talking about jihad from early December and
who went out with him looking for victims on New Year’s Eve was a young man
he had met at Bukhari House.
Namoa’s adoption of jihadism

49 In a letter to the Court tendered on sentence Namoa said of her recruitment to
Islam by two female street preachers in 2012 that:
being the extremely impulsive and curious 14½-year-old girl that I was I
wanted to try something new, so, I became Muslim overnight.
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50 I infer that at least one of these street preachers actively supported jihad.
According to Namoa the woman’s husband was subsequently killed while
fighting in Syria and the woman herself was later killed there. Namoa said she
initially followed Islam for only about three months, then reverted to attending
Mass in accordance with her Catholic upbringing. She came back to Islam in
late 2014 but not seriously. She continued “clubbing and binge drinking”. From
about early 2015 she practised Islam to the extent of observing daily prayer
rituals and covering her hair and face.
51 Namoa told Dr Furst that she developed an interest in IS propaganda from

about late June 2015. At that time she had been in a romantic relationship with
Bayda for two months. Namoa’s letter to the Court included this (emphasis
added):
I got into propaganda first and then learnt the fundamentalist ideology through
other Muslims on social media which I then followed being the only thing I’ve
seen widespread online which was always labelled as the path of Islam.
Following that I learnt the basics of Islam, such as the prayer and ablution in
September 2015.
I acknowledge that I was a fanatic and that I’ve accessed a substantial amount
of Islamic State propaganda, as well as downloading various books and
documents onto my phone.
52 Namoa’s fanaticism at around the charge period is well illustrated in a letter
she wrote on 5 February 2016 addressed to Bayda. He had been charged
more than a week earlier and was in custody. Namoa was on notice that she
was going to be questioned by authorities. In this letter she rejected Australian
laws and law enforcement authorities, saying “Allah is my legislator”. She
spoke of having no interest in life on earth and desiring only death and
paradise.
Trial evidence of Islamic propaganda on offenders’ phones and devices

53 The offenders’ phones seized on 13 January 2016 contained Islamic
propaganda in thousands of images, videos and text files. This material had
been downloaded from the Internet, mostly during 2015. Under search
warrants police seized a laptop computer and a digital hard drive from Bayda’s
home on 25 January 2016 and 5 February 2016. Both devices contained
numerous downloaded electronic editions of IS’s periodic magazine “Dabiq”
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and a similar publication by al-Qaeda entitled “Inspire”. A representative

selection of material was tendered in the trial.
54 The material on Bayda’s phone included the following:
(1) Numerous videos of sermons delivered by Islamic scholars identifying in

the Quran and in the example of the Prophet’s life a foundation for the
belief that Allah has commanded the believers to kill or subjugate all
non-Muslims.
(2) Instruction manuals on how to carry out lethal attacks on non-Muslims in
Western countries.
(3) Still images and videos of Islamic combatants in the Middle East, either
posing heavily armed or carrying out mass executions of bound and
helpless prisoners, often by beheading.
(4) Conversations, in the form of exchanged text messages and/or images,
between believers in the Islamic duty of jihad.
55 On Namoa’s phone there was material in the same categories but of lesser
volume. The IS and al-Qaeda electronic magazines on Bayda’s laptop and
hard drive contained learned religious articles urging violence against non-
Muslims, particularly in the West, instructions upon how to carry out such
violence and depictions of religious warfare in the Middle East.
56 The message conveyed by the written and video-recorded propaganda on all

devices was essentially as follows:
(1) All non-Muslims, being people who do not accept Allah as the one God
and Muhammad as his Prophet or Messenger, are the enemies of Allah.
(2) It is a Muslim’s obligatory religious duty to wage jihad against (that is,
make war upon) all non-Muslims everywhere, including civilian
populations in the West.
(3) The obligation of jihad against non-Muslims is never-ending until Islam
has been imposed universally and non-Muslims everywhere have
submitted.
57 By way of encouragement of attacks on non-Muslim civilians and governments
in the West the propaganda represents that Muslims generally are under
attack. No substantiation of this supposedly general attack is offered and the
passages from the Quran relied upon are not expressed in defensive terms but
call for forcible imposition of Islam as an imperial project. The propaganda
urges Muslims in the West to engage in terrorism upon the premise that their
loyalty to Islam is higher than any loyalty to the nations in which they live, that
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they are residing amongst an enemy and that their religious obligation to
dominate non-Muslims by force displaces the mutual obligations of citizenship
under Western laws.
58 I am satisfied beyond reasonable doubt that each of the offenders read and/or
viewed sufficient of the jihadist material on their phones and other devices to
understand this divine command for attacks on innocent Western civilians. In
their evidence on sentence neither of them disputed that at the time they
understood and accepted that message.
59 At trial the significance of the downloaded material was to support an inference

that Bayda and Namoa intended to advance their religion by perpetrating
violence against non-Muslims. The verdicts of guilty carry an affirmative finding
that that was the belief and intent of both offenders. On sentence they have not
denied it.
60 The countless images of death in the propaganda on the offenders’ devices

and the relish with which the video recorded sermons and written articles
speak of bloodshed convey a first impression of no more than depravity.
However the sermons and writings are serious and scholarly religious teaching.
They quote verses of the Quran which unmistakably instruct the believers to
undertake jihad in pursuit of universal Islamic dominance. For example in one
of Anwar al-Awlaki’s essays in “Inspire” magazine (Trial Exhibit FF) verses are
quoted in these terms:
8:39 Fight them until there is no fitnah [disbelief] and [until] the
religion, all of it, is for Allah.
8:60 And prepare for them what you can of strength and steeds of
war that you may terrorise with it the enemy of Allah and your enemy.
4:84 So fight, [O Muhammad], in the cause of Allah; you are not held
responsible except for yourself. And encourage the believers [to join
you] that perhaps Allah will restrain the [military] might of those who
disbelieve. …
61 Al-Awlaki’s essay, which is part of the evidence tendered to the jury, also
quotes sayings of the Prophet to similar effect, such as the following (from two
collections of Hadith):
The [Prophet] said: “I was instructed to fight mankind until they testify that
there is no one worthy of worship except Allah, and that Muhammad is the
Messenger of Allah, they establish Salah [prayer] and they pay Zakah [tax on
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wealth for alms]. Whoever does so have protected from me his blood and his
wealth.
62 The Crown’s witness, Dr Rodger Shanahan, gave evidence before the jury that
in Islam the Quran:
needs to be understood differently to the Bible insofar as the Quran is the

literal word of God, so delivered over a period of time specifically to
Muhammad by the Angel Gabriel. The Prophet Muhammad then recounted or
wrote down what he had been told in these revelations, and they are collated
in the book we now know as the Quran. …
So when we talk about references in the Quran, that takes on a very important
aspect within Islam, because that is essentially what God has told his followers
to do.
(In this and in subsequent extracts from the evidence, some spellings as they
appear in the transcript have been altered for uniformity.)
63 The following are further examples of Quranic verses cited by contributors to

the online propaganda magazines which Bayda had on his electronic devices. I
quote them in the terms in which they appear in the evidence:
2:216 Jihad is ordained for you though you dislike it, and it may be that you
dislike a thing which is good for you and that you like a thing which is bad for
you. Allah knows but you do not know.
9:5 And when the Sacred months have passed, then kill the polytheists
wherever you find them … .
9:29 Fight against those who believe not in Allah, nor in the Last Day, nor
forbid that which has been forbidden by Allah and His Messenger and those
who acknowledge not the religion of truth among the people of the Scripture
[Jews and Christians], Until They Pay the Jizyah [poll tax] with willing
submission, and feel themselves subdued.
9:33 It is he who has sent his Messenger [Muhammad] with guidance and the
religion of truth, to make it superior over all religions even though the
mushrikun [polytheists, pagans, idolaters, unbelievers] hate it.
9:73 O Prophet fight against the kuffar and the munafiqin [hypocrites] and be
harsh upon them.
9:123 Fight those adjacent to you of the kuffar and let them find in you
harshness.
64 An article in one issue of Dabiq, tendered from Bayda’s electronic storage, was
entitled “Islam is the Religion of the Sword not of Pacifism”. It contains this
argument:
Allah has revealed Islam to be the religion of the sword, and the evidence of
this is so profuse that only a zindiq (heretic) would argue otherwise.
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The article proceeds to quote from the Quran, including some of the verses set
out above, and the following (being part of 47:4):
So when you meet those who disbelieve, strike their necks until, when you
have inflicted slaughter upon them, then secure their bonds, and either [confer]
favour afterwards or ransom [them] until the war lays down its burdens.
65 The jihadist propaganda on Bayda’s laptop and hard drive (particularly the IS
and al-Qaeda magazines) also relies upon the Prophet’s example of waging
religious war in the 7th Century. The articles invoke the duty of Muslims to
follow the Prophet’s example in all things as a central tenet of Islam. Writings of
other Islamic scholars, ancient and modern, are quoted to substantiate that the
war-making of IS in the Middle East against everyone except Sunni Muslims
and the extension of this violence against Western communities are the
fulfilment of all Muslims’ religious duty.
Evidence given at trial by Dr Shanahan

66 Dr Shanahan is a retired Army officer who has served as a defence attaché at
various Australian diplomatic posts in the Middle East. He holds a doctorate in
Arab and Islamic studies from the University of Sydney and has published
extensively on Islamic subjects. In evidence before the jury he recounted the
origin of Islamic State in Iraq in about 2006 and its combat activities in Syria up
to June 2014 when its leader declared himself the caliph, or successor to the
Prophet Muhammad, and ruler over the area which IS controlled.
67 Dr Shanahan said that following the announcement of the caliphate IS called:
for people to travel to build the Islamic State, at the same time they were also
telling people who … were unable to travel there that they could also
contribute to Islamic State by conducting attacks in their home locations.
68 Dr Shanahan described Islam as a legal and political system not limited to
religion in the spiritual and personal sense:
Islam is supposed to be not just a religion but a total system of life, so for any
total system of life you need a legal framework. … Islamic law as we know it,
or the Sharia, provides guidance for how you are supposed to live your life in
the way in which God willed you to do that. … [W]ithin Islamic law, different
weight is given to different sources of Islamic law. Obviously the most weight is
given to the Quran because that is the literal word of God, but that doesn’t give
complete guidance for how people should live their lives. So in those vast
areas that it doesn’t mention, … you take your guidance off what are known as
the hadith, and the hadith are the actions or the sayings of the Prophet
Muhammad and his companions.
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So if Muhammad was chosen out of all people by God to receive the

revelations, then it follows that the actions that he undertook and the words
that he said should be the next most important source of law within Islam.
69 Dr Shanahan said that in the extensive publishing activities of IS a significant
component has been “encouraging attacks against non-believers in Western
lands”. He said Anwar al-Awlaki, whose writings were amongst those stored on
the offenders’ devices, was a Muslim scholar who had been influential up until
his death in 2011:
He had done some formal Islamic training, allegedly in Saudi Arabia but
definitely in Yemen. … He was a very good orator and he had formal Islamic
legal qualifications. …
[P]eople who have been attracted to Islamic State have downloaded al-
Awlaki’s speeches, because he talks about the same kind of things that all
jihadist groups talk about, about your personal religious obligation to attack the
West.
70 Dr Shanahan gave evidence about a publication on the offenders’ phones
dated 20 December 2015 entitled “Advice to Those Who Cannot Come to
Sham” (meaning, broadly, Syria and Lebanon). Dr Shanahan said:
the idea of this online book was things that you could do to assist Islamic State
if you weren’t physically able to travel there, and it gave religious justifications
for those actions. They [included] killing people in the non-Muslim lands in
which you live … .
The offenders’ culpability for religious fanaticism
71 There is no suggestion in the evidence or in the arguments put on behalf of the
offenders that the commission of this offence was induced in any degree by
social or economic marginalisation or by any reaction to police vigilance and
enforcement activities with respect to terrorism. The offenders simply adopted
a fanatical Islamic hostility toward non-Muslims and toward Australia’s liberal
democratic society in accordance with religious instruction they received, both
directly and on-line.
72 Widespread sermonising and scholarship on the Internet, as tendered in this

case, shows that those who believe Allah has instructed Muslims to impose
their religion upon the world by violence derive this conviction from the Quran,
believing it, as Dr Shanahan explained, to record “essentially what God has
told his followers to do”. The propagandists whose writings are in evidence in
this case and terrorists who respond to their call (like the offenders now before
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the Court) cannot sensibly be regarded as mere anti-social deviants. It could

not be clearer that jihadi propagandists and terrorists are motivated by religion
and are able to identify scriptural support for their actions. They consistently
invoke belligerent verses of the Quran.
73 In the belief of the propagandists, shared by Bayda and Namoa at the time of
their offence, violence toward non-Muslims is not merely an incidental tactic for
attracting attention to the faith or to issues which concern its followers. Relying
upon the parts of the Quran which they cite and upon the example set by the
Prophet, the ideology espoused in the online jihadi literature embraces never-
ending war against non-believers as an inherent and central element of belief.
This ideology elevates violence to the performance of a religious duty and an
act of devotion.
74 Section 93Z(1)(b) of the Crimes Act 1900 (NSW) came into force on 13 August
2018. It is in these terms:
93Z Offence of publicly threatening or inciting violence on grounds of

race, religion, sexual orientation, gender identity or intersex or HIV/AIDS
status
(1) A person who, by a public act, intentionally or recklessly threatens or
incites violence towards another person or a group of persons on any of the
following grounds is guilty of an offence:
(b) that the other person has, or one or more of the members of the
group have, a specific religious belief or affiliation,
Maximum penalty:
(a) in the case of an individual—100 penalty units or imprisonment for
3 years (or both), or
(b) in the case of a corporation—500 penalty units.
(5) In this section:
public act includes:
(a) any form of communication (including speaking, writing, displaying
notices, playing of recorded material, broadcasting and communicating
through social media and other electronic methods) to the public, and
(b) any conduct (including actions and gestures and the wearing or display of
clothing, signs, flags, emblems and insignia) observable by the public, and
(c) the distribution or dissemination of any matter to the public.
For the avoidance of doubt, an act may be a public act even if it occurs on
private land.
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religious belief or affiliation means holding or not holding a religious belief or

view.
75 Publicly disseminating in Australia the religious belief that Muslims are under a
duty to attack non-believers (as taught by the online propagandists and by
Bayda’s Islamic mentors in Sydney in 2013) is an incitement to communal
violence. Since the commencement of s 93Z(1)(b) of the Crimes Act it would
constitute an offence in this State, not excused by the reference to scripture.
76 Although Australian citizens are not subject to penalty for their choice of belief
by which to relate to God, teaching a divine duty of violence against non-
Muslims is not within the law’s protection. It goes beyond personal religious
experience and counsels criminal breaches of the peace. The whole concept of
inclusive tolerance would be destroyed if respect and protection were accorded
to beliefs that are themselves violently intolerant and that conflict with secular
laws designed to secure diverse freedom of worship for all.
77 Even at 18 and irrespective of their knowledge of the law Bayda and Namoa
should have understood that their belief in Allah’s instruction to attack everyone
who has a different religion from their own and to seek to impose Islam by
force would stand condemned by the standards of the civilised world. It should
have been apparent to both of them that citing verses of the Quran and
recounting deeds of the Prophet from 1400 years ago could not make such a
purported divine command acceptable as a religious concept, according to
reason and human decency.
78 Terrorists’ reliance on verses of the Quran to support an Islamic duty of

religious violence has been seen with more or less clarity in a number of NSW
and Victorian cases: see R v Khaja (No 5) [2018] NSWSC 238 at [72]-[78],
[98], [101], [122]. The many Australian Muslims who wish to live in peace with
the whole community may reflect that if Islam accepts the entire Quran as
Allah’s eternal instruction to believers, without explicit repudiation of verses
which ordain intolerance, violence and domination, that unqualified acceptance
will embolden terrorists to think they are in common cause with all believers
and indeed that they are the spearhead of the religion. The scriptural support
for the terrorists’ perceived obligation of jihad cannot be rebutted by Australian
courts or law enforcement authorities. If the verses upon which the terrorists
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rely are not binding commands of Allah, it is Muslims who would have to say
so. If Australian followers of the religion, including those who profess deep
knowledge, were to make a clear public disavowal of these verses, as not
authoritative instructions from Allah, then the terrorists’ moral conviction might
be weakened.
79 The incitements to violence which terrorists quote from the Quran cannot just
be ignored by the many believers who desire harmonious coexistence. Those
verses are not ignored by terrorists. As seen in this and numerous other
prosecutions, the hostile verses are inspiring serious crimes. In turn those
crimes have the capacity to provoke social division and mistrust.
80 The apparent message of these verses is not answered by non-specific and

unelaborated suggestions, from various quarters, that “there are other verses”
or that “it is an interpretive religion” or that the hostile passages are “cherry
picked”. Assurances are from time to time offered to Western communities that
“Islam is a religion of peace” and that the faith of Muslims requires them to
obey the laws of a country in which they are in a minority. But in the absence of
express public disavowal of verses which convey Allah’s command for
violence, as quoted in the jihadist literature tendered in this case, such
assurances are apparently contradicted. Certainly that is how the matter is
seen by jihadi propagandists and those who have followed them, including
these offenders.
Bayda’s abandonment of jihadism

81 Bayda gave evidence that after 15 months in the High Risk Management Unit
at Goulburn prison on remand he no longer believed in Allah and confided this
to his second cousin who was in custody with him. The cousin broke his
confidence to other inmates of the unit who are convicted Islamic terrorists.
They purported to approve physical punishment of Bayda. The cousin
assaulted and threatened him. Bayda was then segregated.
82 Consequent upon these events Bayda has been in isolated custody since mid-
2017. He said in evidence that he was depressed and suicidal, without any
religious faith, from May 2017 to June 2018 and that he then turned to
Christianity. I have insufficient evidence from which to be satisfied on the
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balance of probabilities that this conversion is meaningful. Because of his

remand in custody there has been no opportunity for Bayda to demonstrate
genuine Christian philosophy or belief. However it is not necessary that he
should convert to another religion in order to renounce the fanaticism which
was inherent in the offence of which he has been convicted.
83 Bayda gave evidence that he has abandoned Islam altogether because he has
ceased to believe in Allah’s command of violence and he does not consider the
religion as a whole can be separated from that concept. Bayda described
salafists as people who “take the [Quran] literally and they want to live exactly
as Muhammad, the way Muhammad [lived]” including, he said, following the
instruction of Allah for violent domination of people of other faiths. Bayda said
that he understood the overwhelming majority of Sunni Muslims are not
salafists but are, in his terms, “moderate”. He then gave the following answers:
Q And when they’re not Salafists then how do Sunni Muslims who aren’t
following that Salafist approach, how do they treat the word of Allah, which you
say is in the Quran, that they should, and are [under] a duty as Muslims [to],
fight and subjugate people of other faiths? How do they reconcile not doing so
with their belief and acceptance of the Quran?
A Well they don’t, they don’t reject it.
Q They don’t reject those parts of the Quran?
A They don’t reject it. They just, I would say, ignore it.
Q They ignore it?
A Yes.
84 I see no reason to doubt that Bayda holds these views sincerely. It is entirely
credible that his parents should not have found in Islam the violent intolerance
of non-Muslims to which Bayda was introduced at Bukhari House and online.
His father was brought up in Lebanon, speaks only Arabic after 18 years in
Australia and no doubt works and socialises with others of similar background.
According to Bayda his father does not possess a Quran or attend a mosque.
He may never have had any occasion to inquire what Islam has to say about
people of other faiths. Bayda on the other hand has inquired. He has
encountered the differences between Australia’s liberal society and the
teachings of Islam. Learned instructors in the religion have taught him, from the
Quran and from the example of the Prophet as they recount it, that it is a
Muslim’s religious duty to resolve the differences with violence.
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85 The Crown challenged Bayda’s evidence that he perceives Islam to be

inseparable from belief in a divine command to kill non-Muslims. Bayda said he
could not live as a moderate Sunni and gave these answers when challenged
as to why not:
A From what I’ve learnt about Islam.

Q Yes?
A I’ve read many books about Muhammad, about the religion, I was spending
time in the HRMU [High Risk Management Unit] with the rest of the extremists.
From what I understand there’s only [-] a [person] who wants to practise as the
Quran, as Muhammad taught, there’s only one way and that is to practice jihad
and violence, ‘cause that’s what the Quran encourages.
….
Q I’ll ask you this way sir. Do you seriously say to his Honour that you could
not see a way to practise Islam and to live in peace with your fellow man, is
that what you’re telling his Honour?
A Yes.
86 Bayda rejected a suggestion from the Crown in cross examination that his
claim to have adopted Christianity was “no more than a pretence to try to
mitigate the penalty you fear you may face”. He answered further questions as
follows:
Q But in any event whatever view may be taken of your sincerity with respect
to the Christian religion you maintain, do you, that you have renounced Islam?
A Yes.
Q That you disavow what you understand to be the teaching of the Quran,
that hostility, intolerance and violence should be exhibited towards
unbelievers?
A Yes.
Q You do not accept those commandments from Allah, as you understand
them to be in the Quran, as valid, and really as the word of God?
A That’s correct.
Q You don’t?
A No.
87 Bayda said that “according to Sharia law a person who leaves Islam is called
an apostate and the punishment is to be crucified”. I consider it credible and
realistic that he should fear physical retribution for renouncing his religion. He
has described a serious assault and threats within the prison system in May
2017 as a result of disclosing his loss of faith. His understanding that sharia
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prescribes punishment by death for apostasy is widely shared. It was

confirmed in a televised interview in June 2016 by Ahmed el-Tayeb, Grand
Imam of Al Azhar University in Cairo, the pre-eminent seat of Islamic learning.
Bayda is obviously known to Islamic fanatics within the HRMU. They, and
possibly sympathisers outside the prison, might well take this aspect of Islamic
law seriously despite its obvious repugnance to the laws of this State.
Namoa’s background
88 Namoa was born in Sydney and attended primary school with Bayda but they
were at separate schools during high school years. She has four older
brothers, an older sister, a twin brother and a younger brother. Namoa had
learning difficulties in primary school which increased in high school. She
became, by her own account, angry and aggressive. This progressed to
depression and symptoms of generalised anxiety disorder. Behavioural
problems prevented her completing her final year of high school and she left at
16. Year 9 was the highest level she attained satisfactorily.
89 Dr Furst, whose report was tendered on her behalf, gained the impression that
Namoa’s cognitive function is well below average. She told Dr Furst that during
her childhood and teens she was exposed to violence, both within her family
home and in the neighbourhood. This does not appear to be presently relevant
except to the extent it may explain her behavioural and emotional dysregulation
at school. Her only working experience has been two months in a cafe in the
Sydney central business district in 2013.
90 Namoa’s mother appears to be supportive, judging from attendance at court

during the trial and from text messages sent at the time of Bayda’s arrest.
Those messages indicate that in late January 2016 Namoa’s fanatical Islamic
outlook made her hostile to her mother and difficult to help. One of her brothers
also attended court during the trial and sentence proceedings. Both Namoa’s
mother and her twin brother provided to the Court letters conveying strong
family loyalty to her and representations concerning her favourable
characteristics.
91 On 5 February 2016 Namoa was summoned to give evidence before the

Australian Crime Commission, presumably in relation to her apparent
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involvement in terrorism. She attended but refused to answer questions and

was subsequently convicted on 31 counts of refusing or failing to answer a
question at a hearing. Concurrent sentences of 8 months imprisonment with a
non-parole period of 4 months were imposed. The imprisonment has been
served out during her remand on the conspiracy charge.
Namoa’s eventual abandonment of Islamic fanaticism

92 In prison over the first five months of her remand, from 5 February 2016,
Namoa was medicated for depression and her mental state appeared to
deteriorate. In late June and early July 2016 she appeared to have psychotic
symptoms. These apparently resolved in the second half of 2016 and have not
recurred.
93 Letters written by Namoa from prison during March and April 2016 show her
Islamic fanaticism continuing unabated. They show her lack of insight, at that
time, regarding the wrongfulness of encouraging Bayda, on 30 and 31
December 2015, to carry out what she expected to be a suicide attack on
unbelievers in the name of Allah. The following examples are typical of her
convincing herself she had done nothing wrong:
I still don’t understand why we’re both locked up like animals. We didn’t
do nothing wrong and if reading documents were illegal well I didn’t
know.
I still don’t know what kind of terrorism I was doing.
I cry every night Mum you know how weak I am yet they think I’m a
terrorist. Me and Sam had nothing to do with whatever they think we
were involved in.
I didn’t hurt anyone, how am I more dangerous than a murderer?
94 Namoa’s conduct at the time of her arrest and her letters from prison show her
immaturity, lack of critical judgment and immersion in jihadist thinking. On the
premise she had done nothing wrong her letters of March and April 2016
adopted a posture of righteous victimhood. She issued a stream of
imprecations against the laws and authorities by which she was in custody.
She wrote of herself as a prisoner of conscience, held by oppressors of the
Muslims. She invoked Allah to strike them all down.
95 There are numerous of these letters, saturated with Islamic self-righteousness

and oblivious to the concern of law enforcement authorities to protect the
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community against jihadist violence. A number of the letters were written to

male Muslim prisoners in terms which assume acceptance by those prisoners
of jihadist doctrine. The volume of this correspondence tapered off through
May, June and July 2016 but Namoa again expressed such ideas, in violent
and abusive language, in a letter written on 8 September 2016.
96 Namoa wore a hijab, a scarf covering her hair, throughout the trial in
September 2018, giving the impression that she continued in her Islamic faith.
However she told Dr Furst:
I abandoned my extremist views over 12 months ago [by December 2017]. I

was only 18. We all make mistakes. … I have no interest in this shit, this
radical bullshit anymore. … [Bayda] is Christian now. I want to follow him.
97 On 7 October 2018 Namoa informed correctional staff at the facility where she
is held that she had renounced Islam altogether and reverted to Christianity.
That was only two days after the jury had returned their verdict of guilty, which
on first impression provokes scepticism about her sincerity. However Namoa
gave evidence that she continued to wear the hijab on advice of correctional
staff, in order to conceal from other inmates that she is not practising the
religion. I accept that there would be a risk of violence towards her by other
Muslim inmates if they believed she had renounced.
98 In her letter to the Court on sentence Namoa attributed her jihadist Islamic
fanaticism in 2015 and 2016 to teenage immaturity which she says she has left
behind:
In my defence at the time of my arrest I was a regular teenager in love that

made many mistakes as any other during my transition to adulthood. I had
found a curiosity in a subject that I was eager to understand. As a then young
foolish teenager I extensively searched for knowledge and understanding
without considering the repercussions of my actions and speech. I highly doubt
that there exists any regular teenager that adopts this sensible thinking
process automatically.
All inappropriate conversations were merely projected from me, as a then
childish, impulsive and hypothetical thinking teenager. … I meant no harm, but
in truth, I had an unhealthy curiosity of that which carried federal
consequences that I was oblivious to.
99 In this letter Namoa described herself as “a sincerely remorseful adult” and
continues:
[M]y lonely days [in custody on remand] have forced me to realise how much I
regret my childish mistakes. Essentially this time on remand already feels like
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an indefinite life sentence without my freedom and family, as well as any

human contact.
I am trying everything in my power to further distance myself from any form of
extremism and individuals that adhere to my previously held beliefs. I’m
embarrassed by my previous fanatical mentality, it was a phase for me, a
phase in which I’ve grown out of over a year ago.
100 Her letter went on to refer to jihadism as “the rather disgusting ideology I once
felt sympathetic towards” and stated that she is participating in a prison
program designed to divert offenders from extreme views.
Assessment of Namoa’s Islamic fanaticism

101 I do not find it necessary to determine with what degree of sincerity Namoa has
reverted to Christianity. Three years have passed since the offence was
committed and two and a half years since she penned the fanatical letters to
which I earlier referred. I am satisfied she no longer accepts the command of
Allah for Islamic domination by violence.
102 Namoa’s evidence that her belief in jihadism was a childish phase from which
she has matured is supported by surrounding circumstances. She has not
studied Islamic scriptures with sufficient thoroughness or understanding to
have acquired from them a deeply embedded intellectual belief in a duty of
religious warfare. I find that she was drawn into acceptance of salafi jihadism at
a superficial and emotional level, as a doctrine that gave her a sense of
belonging to something, a sense of purpose and a channel for expression of
aggressive feelings.
103 Namoa at 18 was highly susceptible to militant Islamic brainwashing.

Educational difficulties and concomitant frustration and anger during school
years necessarily led to a degree of isolation, probably compounded by her
lack of involvement in the workforce since leaving school at 16. Dr Furst
accounted for her vulnerability in these terms:
Ms Namoa has a history of mental health problems that have been present
since at least 2010, probably longer, and persisted throughout her late
childhood and teens, including depression, anxiety, emotional dysregulation,
low self-esteem, low self-worth, anger issues, learning difficulties and a level of
cognitive function that appears to be well below average. …
Her history of emotional and behavioural instability, low self-esteem, and low
self-worth were identified by [a clinical psychologist who reported on her in
2011, 2012 and 2016] as factors that made Ms Namoa vulnerable to being
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influenced by others and were also thought to be related to her recent

conversion to Islam. Her suspected learning difficulties were thought to be
manifesting in social and cognitive immaturity, with suspected deficits in
consequential thinking and a general executive function … including problem-
solving and higher order thinking.
In my opinion, the deficits identified by [the clinical psychologist] are clearly
related to her mental disorders/conditions and likely played a role in her
conversion to Islam and attraction towards the extremist Jihadist ideologies of
Islamic State …
Her mental health problems outlined above probably also made her vulnerable
to the influence of her co-offender and/or other individuals holding extremist
Jihadist ideologies, which is likely to have been a significant factor in her
offending.
104 Having considered Namoa’s developmental history, her extensive text
exchanges and intercepted phone conversations with Bayda, her letters, her
oral evidence and her demeanour in the witness box, I have no hesitation in
accepting Dr Furst’s analysis. Any 18-year-old can be seduced by an ideology.
The jihadists’ propaganda would be highly persuasive for anyone susceptible
to divine dogma, given the impressive scriptural scholarship offered in support.
Most would balk at a doctrine of purported instruction from a deity to kill people
who do not share one’s religious beliefs. Namoa lacked the intellectual strength
to bring reason and humanity to prevail against this outrageous concept. As
she said in her letter to the Court, fundamentalism (by which she referred to the
jihadist ideas she had read) is:
the only thing I’ve seen widespread online which was always labelled as the
path of Islam.
Objective seriousness of the offenders’ conspiracy: s 16A(2)(a)
105 The gravity with which Parliament regards the offence of conspiracy to do acts
toward preparation and/or planning for a terrorist attack is indicated by the
maximum penalty of life imprisonment. Several aspects of the offence for which
Bayda and Namoa are to be sentenced contribute to an inherent degree of
seriousness. First, all terrorism offences have the propensity to cause
generalised insecurity in the community. Secondly, where the ideological cause
sought to be advanced is that of Islam, the crime involves an intention to
intimidate the Australian public and/or Commonwealth or State governments,
with the objective of destabilising the existing constitutional order. A crime of
this nature is an attack on the framework of government and law.
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106 Thirdly, any individual terrorism offence by which the ideology of Islam is
sought to be advanced is a manifestation of what has become a persistent
disruption of peace and security in the two largest cities of this country.
Although the many individual Islamic terrorists who have been dealt with by the
courts have not all acted in concert with each other, their separate offences
have been unified by the perpetrators’ adherence to a single religious ideology
which has the object of breaking down democratic government and replacing it
with Islamic rule. In R v Khaja (No 5) [2018] NSWSC 238 at [94]-[127] I
summarised the cases of approximately 40 of these jihadists, involved in ten
separate plans over the years 2003-2016 mainly in Melbourne and Sydney.
107 At the date of that judgment (March 2018) the most recent finalised case was R
v Alou (No 4) [2018] NSWSC 221, in which Johnson J dealt with one of the
terrorists who assisted Farhad Mohammad in his murder of Curtis Cheng on 2
October 2015. Since then this Court has sentenced two more of the offenders
involved in that attack: R v Alameddine (No 3) [2018] NSWSC 681 and R v Atai
(No 2) [2018] NSWSC 1797. In R v Abbas [2018] VSC 553 the Victorian
Supreme Court sentenced one of four men who conspired between October
and December 2016 to attack civilians in Federation Square, Melbourne. The
other three have since been convicted. In R v HG [2018] NSWSC 1849 Bellew
J sentenced a 16½-year-old boy who, with a co-offender, had purchased
hunting knives in October 2016 in preparation for an imminent terrorist attack.
108 Taking into account these cases decided during 2018 and the attack by
Hassan Khalif Shire Ali in Bourke Street Melbourne on 9 November 2018, the
total over the past 15 years has now reached approximately 13 plots or actual
attacks involving some 47 jihadists. More such cases are awaiting
determination by the courts. This number of convicted Islamic terrorists whose
offences span 15 years, all inspired by the same ideology and with the same
objective, constitutes a significant phenomenon. This is to be taken into
account in fixing a sentence which provides general deterrence.
109 Notwithstanding the features which make offences of this nature in general
very serious, the particular instance now before the Court has elements which
greatly reduce its objective gravity. The scale of an intended attack is an
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important consideration in determining the objective seriousness of an offence

against ss 11.5(1) and 101.6(1) of the Criminal Code: Fattal v The Queen
[2013] VSCA 276 at [165]. Here, for two days at the end of December 2015 the
conspiracy was directed to the New Year’s Eve attack. The Crown did not
challenge Bayda’s evidence regarding the limited objective of that plan. I could
not be satisfied beyond reasonable doubt that anything of greater scale was at
that time proposed.
110 From 1 January 2016 to the date of Bayda’s arrest the conspiracy had no
defined objective and was not developing in intensity of planning or in
specification of an objective. On the contrary, in mid-January 2016 the
offenders’ intercepted phone conversations were concerned with romantic,
domestic and employment subjects. I am not satisfied that they were speaking
in code during these conversations or that they were dissembling or
deliberately avoiding more sinister subjects to avoid detection. The intercepts
show no indication of such concealment.
111 The duration of a conspiracy is relevant to its objective seriousness. This one
continued into the first two weeks of January 2016 but there is no evidence
upon which the Court could impute that the offenders’ very limited preparations
of holding the Tactical knife and the shahada flag were accompanied by any
formed intent as to a particular degree of violence or property damage which
would be inflicted. The continuance of the conspiracy after 1 January 2016 had
only a nebulous object of some act of terrorism at some time.
112 An offence of doing acts in preparation for a terrorist act contrary to s 101.6(1)
will not necessarily be of reduced seriousness merely because the planning or
preparation did not reach an advanced stage: R v Lohdi [2006] NSWCCA 360
at [65]–[66], [229], [232]. The same must apply to a conspiracy to commit the
substantive offence. However where a conspiracy is in existence for only two
weeks, where its first objective is abandoned and a replacement is conceived
in only the vaguest terms, these factors support an assessment of a relatively
low order of seriousness.
113 The objective seriousness of this offence is reduced, also, by the relative
superficiality of the offenders’ ideological conviction. Both of them talked the
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talk of Islamic supremacism and bigotry towards non-Muslims. But it is fair to

recognise that the teaching and propaganda of Allah’s command to kill
unbelievers did not take hold of them to the point of Bayda actually carrying out
street violence when the opportunity arose or either of them making effective
preparations for any more substantial attack. Overall this conspiracy was at the
lower end of the wide range of possible gravity of an offence of this type.
Bayda’s criminality was the greater because the initiative came from him and
he exercised a degree of influence over Namoa. So far as any action was
taken pursuant to the conspiracy, it was taken by him.
114 I have considered a table of sentencing decisions provided by the Crown. This
refers to all the cases I have cited above and those which I summarised in R v
Khaja (No 5). The objective seriousness of each offender’s participation in the
conspiracy in this case was of a significantly lower order than what was proved
in any of those cases. The combination of low order objective seriousness and
mitigating subjective features which were absent from the other cases
(including renunciation of violent ideology) mean that the sentences for Bayda
and Namoa will be significantly shorter than those imposed in the cases cited.
115 The need for incapacitation is often a central consideration in sentencing for
this type of crime but I do not see it as having a significant role for these
offenders. Neither of them has exhibited, either in the commission of this
offence or on other occasions, a strong will to carry through an act of violence.
Neither of them, in my view, remains motivated by jihadist ideology.
Character, antecedents and mental condition: s 16A(2)(m)

Contrition and prospects of rehabilitation: s 16A(2)(f), (n)
Personal and general deterrence: s 16A(2)(j) and (ja)
116 As required by s 16A(2)(m) of the Crimes Act 1914 (Cth) I take into account the
character and antecedents of each offender. I have already referred to the
evidence on that subject. An additional consideration is that neither has any
relevant criminal record. Namoa’s offences of refusing to answer questions in
the Australian Crime Commission occurred after the conspiracy had been
disrupted by the arrest of Bayda and arose from the offending comprehended
in the conspiracy.
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117 With respect to Namoa the part of s 16A(2)(m) which concerns the offender’s
mental condition is relevant. I consider that her history of mental health
problems, described by Dr Furst in the extract from his report at
[102_Ref532997927], materially contributed to her engagement with militant
Islamic ideas and hence to the commission of the offence. In accordance with
the principles stated by McClellan CJ at CL in Director of Public Prosecutions
(Cth) v De La Rosa [2010] NSWCCA 194 at [177], this reduces the need for
specific deterrence and for denunciation. The causal effect of Namoa’s mental
disturbances makes it inappropriate to penalise her at a level which might
otherwise have been called for by way of deterrent to others.
118 In KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22]–[26] McClellan

CJ at CL drew together the principles to be applied in sentencing youthful
offenders. In R v Khalid [2017] NSWSC 1365 Bellew J summarised and
restated those principles as follows (at [109]):
1 Considerations of general deterrence and principles of retribution

are, in most cases, of less significance than they would be when
sentencing an adult for the same offence. In recognition of the capacity
for young people to reform and mould their character to conform to
society’s norms, considerable emphasis is placed on the need to
provide an opportunity for rehabilitation.
2 The law recognises the potential for the cognitive, emotional and/or
psychological immaturity of a young person to contribute to their
breach of the law. Accordingly, allowance will be made for an
offender’s youth and not just their biological age.
3 Where the immaturity of the offender is a significant factor in the
commission of the offence, the criminality involved will be less than if
the same offence was committed by an adult.
4 Although accepted to be of less significance than when sentencing
adults, considerations of general deterrence and retribution cannot be
completely ignored when sentencing young offenders. There remains a
significant public interest in deterring antisocial conduct.
5 The emphasis given to rehabilitation rather than general deterrence
and retribution when sentencing young offenders may be moderated
when the young person has conducted him or herself in the way an
adult might conduct him or herself, and has committed a crime of
violence or considerable gravity.
6 In determining whether a young offender has engaged in “adult
behaviour”, the Court will look to various matters including the use of
weapons, planning or pre-meditation, the existence of an extensive
criminal history and the nature and circumstances of the offence.
Where some or all of these factors are present the need for
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rehabilitation of the offender may be diminished by the need to protect

society.
7 The weight to be given to considerations relevant to a person’s youth
diminishes the closer the offender approaches the age of maturity. A
‘child offender’ of almost eighteen years of age cannot expect to be
treated substantially differently from an offender who is just over
eighteen years of age. However, the younger the offender, the greater
the weight to be afforded to the element of youth.
119 The authorities consistently treat the mitigating effect of the offender’s youth as
being diminished in proportion with the gravity of the crime. The relative
seriousness of this crime was not so great as to disentitle the offenders from
significant consideration for their youth. Both were demonstrably immature,
even for their age. In Namoa’s case this is the subject of professional opinion.
In Bayda’s case I find that his posturing to Namoa on New Year’s Eve to
aggrandise the level of his commitment to Islamic militancy and his pretence
that he faced martyrdom are manifestations of immaturity rather than deep
fanaticism. The intercepted phone calls between the two offenders in mid-
January 2016 are further evidence of his immaturity relative to chronological
age.
120 Each offender was drawn into commission of this offence by indoctrination in
Islamic jihadism. Neither has any other background influence or disposition
toward crime. I find both of them genuine in their renunciation of fanatical
beliefs. The need for general and specific deterrence is reduced. The realistic
objective of facilitating rehabilitation is correspondingly more important in
sentencing them. The offenders have expressed remorse and contrition, which
I also find genuine. The public interest will best be served by moderation in
sentencing.
121 Both offenders have at least commenced to develop reason and humanity in
place of blind, submitting belief. The evidence heard since the jury gave their
verdict justifies some confidence that on their return to the community Bayda
and Namoa will show respect for the beliefs of others and for the laws of this
country which protect the freedom of its citizens to pursue personal spirituality
in their own way.
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Assistance to authorities: ss 16A(2)(h) and 16A

122 Bayda has provided assistance to authorities which must be taken into account
in accordance with s 16A(2)(h) of the Crimes Act. He has undertaken to
cooperate in other proceedings and therefore the degree to which his sentence
is reduced on that account must be specified. The Court has received
confidential affidavits on the sentence proceedings (Exhibits B3-B8) which
specify the nature of assistance provided and confirm its value in the opinion of
the responsible officers. It would not be appropriate to detail the nature of the
assistance in these remarks. I take into account that Bayda said in open court
he proposes to give evidence against the perpetrator of the assault upon him in
the HRMU at Goulburn. Under the Crimes (Sentencing Procedure) Act 1998
(NSW) assistance of that nature may be the subject of a discount: see RJT v R
[2012] NSWCCA 280 and R v XX [2017] NSWCCA 90. It is not necessary for
me to decide whether that is equally applicable in Commonwealth sentencing
because, in the circumstances of the present case, Bayda’s assistance with
respect to the assault upon himself would not cause me to reduce his sentence
further.
123 Bayda’s cooperation with authorities has already made his conditions of
custody on remand more onerous than those of most prisoners. This has been
the case for approximately 18 months and will continue until he is released.
Inevitably an offender who cooperates with authorities faces the risk of
retribution and I accept that that is a concern of significance for Bayda.
124 Decisions of the Court of Criminal Appeal have addressed the maximum levels
of sentence reduction which may be allowed for the combination of a plea of
guilty and the provision of assistance. In Z v R [2014] NSWCCA 323 it was
held that when there is no plea of guilty, as in the present case, 25% should
not be regarded as a ceiling on the available reduction. Taking all
considerations into account I will reduce by 20% the sentence which I would
otherwise impose. Of this I attribute 15% to assistance to be provided in the
future.
125 Namoa has cooperated with police to the extent of allowing herself to be
interviewed in custody and answering questions in a manner which the
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responsible officer regards as frank. I do not consider that her compliance with
the police request in this respect warrants specification of a particular discount
but I treat it as reinforcing her expressions of contrition and confirming her
progress in rehabilitation. It contributes to the overall mitigation of her penalty.
Sentences
126 I am satisfied that there is no sentence other than imprisonment appropriate in
all the circumstances of the case. Bayda’s sentence should commence from
the date of his arrest, the whole period on remand to count. Namoa’s sentence
should be accumulated by 1 month on the sentence she has served for
refusing to answer questions in the Australian Crime Commission. There was
in that refusal an additional and distinct element of criminality which warrants a
degree of accumulation, notwithstanding the occasion for her being required to
answer questions arose out of her participation in the conspiracy. Her sentence
will therefore commence from 1 month after her arrest on 23 February 2016,
namely, from 23 March 2016.
127 In each sentence the non-parole period will be fixed at 75% of the head
sentence, in accordance with s 19AG of the Crimes Act. Bayda’s head
sentence would have been 5 years but for his cooperation with law
enforcement authorities. It would have been 4 years and 8 months but for his
future assistance alone.
128 In respect of Sameh Bayda the orders of the Court are:
(1) For the offence of conspiring to do acts in preparation for, or planning, a

terrorist act between 8 December 2015 and 25 January 2016 at Sydney,
Sameh Bayda is sentenced to imprisonment for a period of 4 years
commencing on 25 January 2016 and expiring on 24 January 2020.
(2) A non-parole period of 3 years is fixed commencing on 25 January 2016
and expiring on 24 January 2019. Sameh Bayda has been eligible for
release on parole from 24 January 2019.
(3) Pursuant to s 105A.23(1) of the Criminal Code (Cth) Sameh Bayda is
warned that an application may be made for a continuing detention
order requiring his continued detention after the completion of his
sentence.
129 In respect of Alo-Bridget Namoa the orders of the Court are:
(1) For the offence of conspiring to do acts in preparation for, or planning, a

terrorist act between 8 December 2015 and 25 January 2016 at Sydney,
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Alo-Bridget Namoa is sentenced to imprisonment for a period of 3 years

and 9 months commencing on 23 March 2016 and expiring on 22
December 2019.
(2) A non-parole period of 2 years and 10 months is fixed commencing on
23 March 2016 and expiring on 22 January 2019. Alo-Bridget Namoa
has been eligible for release on parole from 22 January 2019.
(3) Pursuant to s 105A.23(1) of the Criminal Code (Cth) Alo-Bridget Namoa
is warned that an application may be made for a continuing detention
order requiring her continued detention after the completion of her
sentence.
**********

Islam and The Quran On Trial in NSW Supreme Court

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Islam and The Quran On Trial in NSW Supreme Court

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New South Wales

Case Name: R v Bayda; R v Namoa (No 8)

Medium Neutral Citation: [2019] NSWSC 24

Hearing Date(s): 7 and 14 December 2018

Date of Orders: 31 January 2019

Decision Date: 31 January 2019

Jurisdiction: Common Law

Decision: For conspiring to do acts in preparation for or planning

Sameh Bayda is sentenced to imprisonment for 4 years

Alo-Bridget Namoa is sentenced to imprisonment for 3

Catchwords: CRIMINAL LAW – particular offences – offences and

extremist Islamic beliefs – prospects of rehabilitation –

Legislation Cited: Criminal Code (Cth)

Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa

Parties: Regina (Crown)

File Number(s): 2016/25204; 2016/58286

6 What constitutes a terrorist act is defined in s 100.1 of the Criminal Code.

(a) coerce or intimidate the government of the Commonwealth or

9 The Crown’s proof of agreement between the offenders was largely

Evidence at trial of the conspiracy in SMS texts

said she wanted to perform a jihadist attack in concert with Bayda, or to

I wanna do an Islamic bonnie and Clyde version on the kuffs haha.

17 At 10:26 pm on 31 December 2015 a photograph of Bayda was taken on his

Evidence at trial of offenders’ activities in January 2016

23 From 30 December 2015 Namoa was in agreement with and expressly

Offenders’ evidence of events on New Year’s Eve 2015

27 When Bayda recommenced communications with Namoa on Christmas Day

29 According to Bayda’s evidence this resulted in Namoa agreeing, in the mid-

30 On Bayda’s evidence he and Namoa went to a mosque together at around

Conclusion regarding events on New Year’s Eve 2015

circumstances that he exaggerated to Namoa the nature of what he was

39 I am not satisfied on the balance of probabilities that Namoa initially tried to

Conclusions regarding the Tactical and Schrade knives

Bayda’s background and induction into jihadism

43 Bayda said he received no instruction in Islam in his youth, either at home or

I looked at them as very knowledgeable in the religion … they were teaching

47 In September 2014 Bayda sat an entrance examination for the Australian

Namoa’s adoption of jihadism

51 Namoa told Dr Furst that she developed an interest in IS propaganda from

Trial evidence of Islamic propaganda on offenders’ phones and devices

and a similar publication by al-Qaeda entitled “Inspire”. A representative

54 The material on Bayda’s phone included the following:

(1) Numerous videos of sermons delivered by Islamic scholars identifying in

56 The message conveyed by the written and video-recorded propaganda on all

59 At trial the significance of the downloaded material was to support an inference

60 The countless images of death in the propaganda on the offenders’ devices

needs to be understood differently to the Bible insofar as the Quran is the

63 The following are further examples of Quranic verses cited by contributors to

Evidence given at trial by Dr Shanahan

67 Dr Shanahan said that following the announcement of the caliphate IS called:

So if Muhammad was chosen out of all people by God to receive the

72 Widespread sermonising and scholarship on the Internet, as tendered in this

the Court) cannot sensibly be regarded as mere anti-social deviants. It could

93Z Offence of publicly threatening or inciting violence on grounds of

religious belief or affiliation means holding or not holding a religious belief or

78 Terrorists’ reliance on verses of the Quran to support an Islamic duty of

80 The apparent message of these verses is not answered by non-specific and

Bayda’s abandonment of jihadism

balance of probabilities that this conversion is meaningful. Because of his

85 The Crown challenged Bayda’s evidence that he perceives Islam to be

A From what I’ve learnt about Islam.

prescribes punishment by death for apostasy is widely shared. It was

90 Namoa’s mother appears to be supportive, judging from attendance at court

91 On 5 February 2016 Namoa was summoned to give evidence before the

involvement in terrorism. She attended but refused to answer questions and