Evidence of a state of mind such as a jihadist mentality or commitment to extremist ideology is not tendency evidence under s 97 of the Evidence Act 1995 (NSW) but is circumstantial evidence from which inferences may be drawn. In sentencing for conspiracy to prepare for a terrorist act, the objective seriousness is assessed by reference to the conspiracy as a whole, not merely the individual acts of each conspirator. The absence of an identified target or specific terrorist act does not prevent the offence being regarded as most serious. Where an offender does not give evidence at sentencing and makes self-serving denials to experts inconsistent with the jury's verdict, the sentencing judge is entitled to find poor prospects of rehabilitation, particularly given the importance of the mental element in terrorism offences.
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