One of two brothers found guilty over an Etihad plane bomb plot faces jail time in Sydney and Lebanon for the same crime, a judge has been told.
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"It's a most unusual situation," Mahmoud Khayat's barrister, Michael Finnane QC, said in the NSW Supreme Court on Tuesday.
"I must say I have never encountered it before."
Khaled Khayat, 52, and Mahmoud Khayat, 34, were found guilty earlier this year of conspiring - between January and July 2017 - to prepare or plan a terrorist act.
The plot, which included their older brother Tarek Khayat who fought for Islamic State in Syria, involved blowing up the plane and carrying out a lethal poisonous gas attack.
A bomb hidden in a meat grinder was to be put into the luggage of their unsuspecting brother Amer Khayat who was flying to Abu Dhabi.
But the plan was abandoned when the baggage was found to be overweight at Sydney airport.
Amer Khayat, who was held in a Lebanese prison for more than two years, has provided documents to his brothers' sentence hearing showing he had been acquitted by a military court in Lebanon of the bomb plot.
But the military court sentenced Khaled, Mahmoud and Tareq Khayat in absentia to hard labour for life.
Mr Finnane told the Sydney sentencing hearing that Mahmoud Khayat had been approved for Australian citizenship but had not ever taken it out.
This means if he receives a jail term of more than one year, he will be considered for deportation to Lebanon where he faces prison for the same crime.
"It's quite an exceptional case," Mr Finnane said.
"He should not be subjected to two lots of punishment. It doesn't apply to his brother because he is an Australian citizen."
Justice Christine Adamson asked if he was submitting that she should impose a sentence for a long time so he won't be deported for a long time, or a sentence for a short time so he will be deported sooner.
"He should not be given a heavy sentence here and then face a heavy sentence for the same thing in another country," the barrister said.
The judge said it was an "imponderable" about what position the minister involved with deportation would take and noted representations could be made on Khayat's behalf.
She adjourned the case to Tuesday to enable a psychiatrist to assess and report on Mahmoud Khayat.
Australian Associated Press
