Two men who pleaded guilty to planning a terror attack targeting a mosque in an attempt to impress an Islamic State mentor will spend less time in prison after their 20-year terms were quashed on appeal.
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The pair pleaded guilty to doing acts in preparation for a terrorist act targeting a Shia mosque in Sydney's west at Guildford.
The judge sentencing Omar Al-Kutobi and Mohammad Kiad did not explicitly detail a sentencing discount secured by a guilty plea from both when jailing them for 20 years on a non-parole period of 15 years, the NSW Court of Criminal Appeal ruled on Monday, quashing their sentences.
"An explicit discount for the utilitarian value of a plea of guilty should be provided when sentencing for commonwealth offences," Justice Richard Button said in his published decision.
The sentencing judge's approach should not be criticised, however, preceding a 2018 court appeal from an insider trading offender, which like terrorism is a commonwealth offence.
"At the time the law was in a state of development as to whether or not a discount ... should be provided," Justice Button said.
New sentences of 16 years with a non-parole period of 12 years were imposed, backdated to the pair's February 2015 arrest.
A "notorious and horrific" video of a captured, caged Jordanian pilot being immolated was playing in the apartment the pair shared when police raided days after they purchased a hunting knife from a military supply store.
Months earlier they became "thoroughly radicalised" and hoped to travel to Syria to join IS, conspiring in Australia when that did not eventuate.
Al-Kutobi harboured deep resentment about the invasion of Iraq, becoming an Australian citizen in 2013 four years after arriving on a false passport.
Kiad came from Kuwait in 2012 with his new wife from an arranged marriage that did not last.
The two men were aged around 24 and 26 when they planned to bomb the prayer hall with homemade napalm and vowed to stab people in the kidneys to impress an IS "mentor" they were communicating with, under surveillance.
They lied to the mentor about why they did not follow through with an attack in the days before their arrest, with Al-Kutobi later telling the court their resolve buckled when a person exited the building they planned to firebomb.
When sentencing them, Justice Peter Garling accepted that evidence but found no guarantee such "faintheartedness" would be repeated in their imminent stabbing plan.
Immediately resentencing the pair was the best course of action, Justice Button said.
The absence of a quantified discount as well as evidence of contrition, later transfers into mainstream jail populations (indicating a considered lower risk of radicalising other inmates), and their engagement in rehabilitation programs and with psychiatrists were viewed favourably by the court.
Al-Kutobi and Kiad submitted they had renounced violent extremism.
However, there was evidence the pair were still attracted as late as March 2018 when an Islamic song promoting violent jihad was found in their correctional centre, with suggestions they had written it.
The appeal court considered Justice Garling's initial findings correct aside from the unquantified discount.
But it was concerned by his finding that an act of profound physical violence had been imminent.
"And yet, for some undetermined reason, even eight years later, both applicants cannot or will not accept the truth of that finding," Justice Button said.
The pair are first eligible for parole on February 9, 2027.
Australian Associated Press
