State of New South Wales v Osman

1. [1]

   The defendant is a “convicted NSW terrorism activity offender” within the meaning of s 10 of the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the THRO Act”). He will, on 22 November 2020, be released from custody having served the whole of the term imposed upon him on 18 November 2016 for offences of affray and recklessly inflicting grievous bodily harm. The State of New South Wales (“the State”) contends that he poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision and, by Summons filed on 21 September 2020, asks the Court to make orders for his extended supervision.

2. [2]

   The matter came before the Court on 9 November 2020 at a preliminary stage of proceedings, at which time the State moved on prayers 1, 2, 3, and 4, of the Summons, asking the Court to make the following orders:

   1. (1)

      An order pursuant to s. 24(5) of the Terrorism (High Risk Offenders) Act 2017 (“the Act”),

   2. (2)

      An order pursuant to s. 27 of the Act, that the defendant be subject to an Interim Supervision Order commencing on 22 November 2020;

   3. (3)

      An order pursuant to s. 28(1) of the Act, that the Interim Supervision Order be for a period of 28 days; and

   4. (4)

      An order pursuant to s. 29(1) of the Act, directing that the defendant comply with the conditions set out in the schedule to this Summons for the duration of the order specified at paragraph 2.

3. [3]

   A further order relating to access to the Court’s file is also to be determined, although there is no issue with that aspect of the matter.

The Law

1. [4]

   Section 20 of the THRO Act provides for the Court to make an order for the extended supervision of an eligible offender. It is in these terms:

2. [5]

   Section 24(5) provides for the Court to make orders appointing two experts to examine the defendant and report to the Court:

3. [6]

   Section 27 provides for an interim supervision order (“ISO”) to be made against a defendant if certain criteria are met:

4. [7]

   The focus of evidence and, particularly, argument at the preliminary hearing, was with respect to the test set out at s 20(d) as it applied to s 24(5) and s 27. No issue was taken by the defendant that s 20(a), (b) and (c) are capable of being met on the evidence.

The Evidence

1. [8]

   The evidence relevant to the application is voluminous; it is contained in nine lever-arch files. It is accompanied by hundreds of pages of written submissions and many hundreds of pages of authorities to which the Court was referred. In view of the proximity of the defendant’s release from custody, necessarily, this judgment must be completed within a narrow time frame. It is thus not possible to set out here, in the limited time available, a complete account of the whole of the evidence, or to note each of the submissions made. Instead, the focus will be on the aspects of the evidence which are of most significance, and upon the submissions which addressed those matters.

2. [9]

   The defendant’s first encounter with the criminal justice system was in 2012, when he was placed on an 18 month bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) by the Local Court for an offence of goods in custody.

3. [10]

   During the currency of that bond the defendant was charged with offences of serious violence and later, in 2016, came before his Honour Judge Sides QC at Parramatta District Court for sentence for charges of affray, contrary to s 93C of the Crimes Act 1900 (NSW), and recklessly causing grievous bodily harm in company (“reckless GBH”), contrary to s 35 of the same Act. These, or more properly, the latter, are the “index offences” for the purposes of this application.

4. [11]

   The offences were committed on 7 August 2013. The first occurred on the campus of Macquarie University, where the defendant was then a student. The defendant approached a fellow student, Mr Dalst, and spat upon him. When Mr Dalst spat back at the defendant, a co-offender, Mustafa Dirani (now a convicted terrorism offender) moved behind Mr Dalst and began to punch him. A security officer intervened and moved all three men on. Soon after and a short distance away, the defendant approached Mr Dalst again, and began to punch him repeatedly. His co-offender joined in and the two men hit the victim in the order of 30 times. As he ran off, the defendant told Mr Dalst, “Tell Haron he’s next”. The entire incident was caught by closed circuit surveillance cameras.

5. [12]

   This conduct was represented by a charge of affray which was before the sentencing court on a schedule (or Form 1 document), to be taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act when sentence was imposed for the reckless GBH offence.

6. [13]

   After the affray Mr Dalst contacted Haron Osmany and told him about what had happened and the threat made. Mr Osmany contacted the defendant and the two men arranged to meet at Parramatta. Mr Osmany brought two other men with him to the meeting; the defendant brought Dirani, and arranged for another group of men, some of who were armed with baseball bats and poles, to attend the scene. After a short discussion between the defendant and Mr Osmany, the defendant threw a punch at Mr Osmany. An unidentified male, likely an associate of Mr Osmany, produced a handgun and fired it at the ground, causing the defendant, Dirani, and their associates to back away. After another shot was fired, Mr Osmany and his friend walked away. A third shot was fired as they left the area. This interaction was reflected by another offence of affray, before the sentencing court on indictment.

7. [14]

   The defendant went to his car and, with his co-offender as passenger, drove in pursuit of Mr Osmany. Although it was dark and raining he kept the car’s headlights off. The defendant’s associates got into another vehicle and followed the defendant’s car. When the defendant saw Mr Osmany and his two companions walking along the road, he called something to him as he drove past. The defendant then accelerated harshly, driving through a set of red lights, before conducting an illegal U-turn and driving, on the wrong side of the road, back towards Mr Osmany. With his car’s headlights now fully illuminated, the defendant drove at Mr Osmany, colliding with him and throwing him several metres. The defendant’s car crashed into another vehicle, and then with the car in which the defendant’s associates had been travelling. All of the vehicles were badly damaged.

8. [15]

   Mr Osmany suffered extensive injuries, including shattered tibia bones in both legs, a shattered femur in his right leg, and a dislocated shoulder. He was hospitalised for about a month for treatment.

9. [16]

   The defendant was arrested at the scene and later charged. He was then 19 years of age.

10. [17]

    After being charged with the index offences, the defendant dropped out of university for “religious reasons”, evidently connected with his disapproval of women being admitted to study there.

11. [18]

    Following pleas of guilty entered on the morning of trial, the defendant was sentenced by Judge Sides QC on 18 November 2016.

12. [19]

    The defendant acknowledged to a probation officer who prepared a pre-sentence report that he had planned the confrontation at Parramatta, attending the meeting point with an armed cohort. The sentencing judge found the affray to be a premeditated offence; the reckless GBH was also regarded as premeditated, the defendant having pursued the departing victim and deliberately driven at him. Judge Sides QC noted that the defendant used his car as a weapon and did so with no regard for public safety. This offence was assessed as being “a little below the middle of the range of seriousness” for an offence of its type. In determining sentence, his Honour observed:

13. [20]

    For the two offences on indictment, with the third offence taken into account, an aggregate sentence of 5 years and 3 months was imposed, pursuant to s 53A of the Crimes (Sentencing Procedure) Act. A non-parole period (“NPP”) of 2 years was fixed. The sentence commenced on 23 August 2015. As the ratio of sentence suggests, the sentencing judge made a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act, due to the onerous conditions in which the defendant was then detained (as a consequence of other charges brought against him), and his need for a longer period of supervision on parole.

14. [21]

    In his remarks on sentence, Judge Sides QC referred to the offences of which the defendant had earlier been convicted, being three counts of breaching a control order, which had led to his detention in a high security facility. Those offences relate to the interim control order imposed upon the defendant ex parte on 17 December 2014 by the Federal Circuit Court, at a time when the defendant was at liberty on bail, awaiting his trial for the matters dealt with by his Honour Judge Sides QC at Parramatta District Court.

15. [22]

    The application for a control order pursuant to s 104.2(3)(b)(i) of the Criminal Code (Cth) was made by an Assistant Commissioner of the Australian Federal Police (“AFP”). In it, the defendant was named as an individual suspected of being a key member of a group of men (“the Group”) who were supporters of the terrorist organisation Islamic State (or “IS”), and who were believed to be planning a terrorist attack in Australia. A control order was sought over the defendant because the Assistant Commissioner believed that he and another Group member, Abdullah Salihy, “pose the greatest risk and have the most influence over others in the Group and associated persons”.

16. [23]

    The Group’s members were said to have in common:

17. [24]

    In July 2014 the defendant’s older brother, Milad Osman, also known as Milad Bin Ahmad Shah Al-Ahmadzai (“Al-Ahmadzai”), was lawfully intercepted in a telephone conversation with another man discussing events in Syria, and the need for caution when speaking on the telephone. In another call in early August, he discussed raising funds for the wife of a convicted terrorist, her husband having been sentenced to a lengthy term of imprisonment for conspiring to commit a terrorist act. Later in August, Al-Ahmadzai was gaoled for threatening a Commonwealth official and using a carriage service to menace.

18. [25]

    Another member of the Group, Ahmad Saiyer Naizmand (“Naizmand”), who travelled to the United Arab Emirates using a brother’s passport, was arrested on 8 August 2014, having been returned to Australia from the Emirates for passport irregularities. He was charged and detained in custody. That Naizmand had “made it out of Australia” was discussed by Group members as a miracle wrought by “almighty Allah”.

19. [26]

    The defendant was also recorded in conversation with the individual with whom his brother had been in conversation, discussing an urgent need to meet at Bukhari House, an Islamic bookshop in Auburn. Others of the Group who were also under surveillance were recorded discussing money sent and to be sent overseas to associates there, who were engaged in some activity which involved the use of weapons and significant risk, and for which further recruits were needed. Group members frequently met during this period, or spoke using public telephones rather than mobile telephones or personal landline services that might be more readily intercepted. Discussions among Group members touched on matters including surveillance by ASIO, and travelling overseas and dying as a “Shaheed”, or martyr.

20. [27]

    On 13 August 2014, the defendant spoke with another Group member, seeking to arrange a meeting so that the defendant could report on “a very big door opened up” for him. He was unwilling to say more over the telephone, pointing to consciousness of the possibility of surveillance, and the delicacy of the subject matter.

21. [28]

    Throughout August 2014, there was considerable telephone traffic between Group members, and meetings of some, including the defendant. In one such meeting, on 20 August 2014, between the defendant and another group member, portions of a letter from the defendant’s older brother, who was then in custody, were read out. The letter made reference to needing at least five soldiers “for the cause of Allah”. It was interpreted by authorities as being a call for “jihad” in Australia as a means of furthering the cause of “Allah” and gaining entrance to “Dawlah” or IS. It referred to the defendant as having conveyed to his brother the willingness of 10 soldiers to carry out acts in Australia. The plan appeared to require between 5 and 10 participants, and was to be given effect immediately Al-Ahmadzai was released from custody.

22. [29]

    On 5 September 2014, the defendant and a companion, his co-offender in the index offences, Mustafa Dirani, drove past a group of police officers and abused them. The vehicle in which they were travelling was stopped and searched. As the search was being conducted the defendant asserted that “there will be a surprise for you”, but declined to say what it was. He denied that he was threatening the police.

23. [30]

    Officers found a list of vehicles and registration details, believed to be part of counter-surveillance measures adopted by the defendant. The defendant smashed a mobile telephone before it could be examined.

24. [31]

    On 11 September 2014, the defendant and other Group members went to Silverwater Correctional Centre to visit Naizmand, in custody following his use of his brother’s passport to leave Australia.

25. [32]

    On 15 September 2014, a telephone conversation between Omarjan Azari in Australia and Mohammad Ali Baryalei in Syria was lawfully intercepted by federal authorities. The men discussed what appeared to be a plan for Azari to rally “boys […] with heart” to kill 5 or 6 “kafirs” in Australia, each month, on instruction from “the big brother”. Azari, a member of the Group, expressed willingness, but complained about the level of surveillance that he and others were subject to. Azari was told that “the Commander of the Believers”, or leader of IS, would regard he and his associates as “part of us” if they remained in Australia and acted as “soldiers from there”.

26. [33]

    The defendant was believed to be one of the “boys with heart”, who was prepared to carry out terrorist acts on behalf of IS in Australia.

27. [34]

    He and a number of others were subjected to searches of their premises and cars on 18 September 2014. Found at the defendant’s house were two mobile telephones and a number of letters believed to be from the defendant’s gaoled brother, Al-Ahmadzai, including that partially read aloud by the defendant to another Group member on 20 August 2014. Found in a car belonging to another Group member then in custody, Naizmand, and believed to be used by the defendant, were a further two mobile telephones and eight SIM cards still packaged.

28. [35]

    At the homes of other Group members, items with a more direct link to terrorist activity were found, such as IS flags and documents about “jihad”. One of the Group, Azari, was arrested and charged with planning for a terrorist act. [He has since been gaoled.]

29. [36]

    Ongoing surveillance and intelligence gathering following the raids showed that members of the Group continued to associate with one another, and visit those of their number who had been gaoled, with their shared interest extreme Islamic ideology.

30. [37]

    On 13 October 2014, IS released a video of a British national then held hostage by terrorists, delivering a scripted message concerning the murder of a number of fellow hostages by their captors. An unidentified individual sent a text message to the defendant the following day, apparently referring him to the video.

31. [38]

    On 29 October 2014, during one of his contacts with another Group member, Salihy, the defendant, who was angered about receiving a number of traffic infringement notices, told Salihy that he felt like telling the police officers:

32. [39]

    On 2 November 2014, the defendant went to the Goulburn Correctional Centre with other group members to visit Wassim Fayad, an individual the Group viewed as an Islamic religious leader. The conversation between Fayad and his visitors was recorded. With many references to “swear by Allah” and “praise be to Allah” and the like, Fayad suggested the men submit a petition to the federal government calling for the return of the cancelled passports of persons suspected of intending to travel overseas to fight for terrorist groups. He said:

33. [40]

    Fayad referred to a plan that the defendant intended to carry out, and cautioned him about it, warning him that failure was likely, and he would end up being surrounded by law enforcement officers.

34. [41]

    Fayad talked about the defendant examining the plan of a “smart criminal”, comparing his plan to that of the smart criminal, and weighing the “pros and cons” of a potentially failed plan leading to heightened security, and more police on the streets. The defendant’s response was:

35. [42]

    Apparently referring to an earlier, frustrated, unsuccessful, or discontinued plan, the following exchange between the defendant and Fayad was recorded:

36. [43]

    The discussion continued with references to the defendant’s plan being so easy “a ten year old” child could carry it out, and consideration of the number of “brothers” required for it. Fayad asked the defendant:

37. [44]

    Ultimately, Fayad told the defendant that he could not be a “one-man crusade”.

38. [45]

    Parts of the conversation were not able to be heard (or transcribed) as those participating in it made considerable noise – singing, shouting, laughing, and making banging noises, apparently as a deliberate counter-surveillance measure. Footage of the meeting shows the defendant whispering directly into Fayad’s ear, again, apparently to defeat any electronic surveillance.

39. [46]

    Later that same day, there was a telephone conversation recorded by authorities believed to be between the defendant and another individual, in which the defendant was urged to “ask Allah” if he should act or not. The defendant asked, “what if I get locked up”, before referring to himself as:

40. [47]

    There is evidence that the term “lone wolf” has been used to refer to a sole individual acting alone to carry out a terrorist act in support of extreme Islamism, including by senior figures in IS, who have issued public exhortations for “soldiers” to undertake lone wolf acts.

41. [48]

    On the basis of evidence including that summarised above, the Federal Circuit Court imposed an interim control order (“ICO”) on the defendant on 17 December 2014, being satisfied on balance that making the order would substantially assist in preventing a terrorist act.

42. [49]

    The conditions attaching to the ICO included an overnight curfew; a requirement to report to police thrice weekly; a prohibition on attending certain places, such as any point of international departure, any gaol, or the homes of named individuals; a prohibition on leaving New South Wales or the Commonwealth; a prohibition on acquiring, possessing or distributing information concerning terrorist acts or explosives; a ban on any contact with 14 named persons; a prohibition on accessing or using certain means of communication, such as mobile telephones, computers, or other devices with internet access, other than those approved by the Joint Counter Terrorism Team (“JCCT”); and a prohibition on the use of public telephones other than in an emergency.

43. [50]

    The defendant was served with the control order on 18 December 2014.

44. [51]

    Within days he had breached it on three separate occasions, by twice using a public telephone, it not being an emergency, and once by using a mobile telephone that had not been approved by the JCCT. He was charged with three counts of contravening a control order contrary to s 104.27 of the Criminal Code (Cth), an offence carrying a maximum sentence of 5 years imprisonment. The defendant initially entered pleas of not guilty, only acknowledging his guilt after the matter had been committed for trial in the District Court of New South Wales.

45. [52]

    The person contacted by the defendant was the same individual on each occasion – Mustafa Dirani; the discussion did not touch on terrorism related matters. Despite that, the sentencing judge, his Honour Judge Berman SC, rejected the defendant’s submission that the breaches were trivial, observing:

46. [53]

    His Honour noted that the defendant travelled some distance from his home to use a public telephone, that his conduct was deliberate, and in defiance of the bail that he was then subject to [for the violence offences subsequently dealt with by Judge Sides QC]. A need for a sentence importing a degree of specific deterrence as well as general deterrence was noted:

47. [54]

    The sentence imposed for each offence (as later corrected) was one of 2 years imprisonment to date from 23 December 2014 and expiring on 22 December 2016, with a NPP of 18 months, which expired on 22 June 2016.

48. [55]

    The defendant was not admitted to parole with respect to that matter, as the sentence imposed for the index offences was ordered to commence on 23 August 2015, with that sentence continuing until 22 November 2020.

49. [56]

    In custody and out, the defendant maintained a steady correspondence with his brother, Al-Ahmadzai. The letters from the defendant’s brother which are before the Court are almost exclusively religious and ideological in nature; there is little of the family chat that one might expect brothers to exchange. By way of example, the defendant’s brother wrote, in an undated letter, dated in the evidentiary index as 28 January 2014, (Tab 18, Vol 1):

50. [57]

    Although the defendant has, from time to time, expressed a wish that his brother would not contact him, or urged Al-Ahmadzai in letters not to refer to “bad intel” in correspondence, the relationship is ongoing, and is regarded as a feature that heightens the risk of the defendant engaging in a terrorist act.

51. [58]

    The defendant’s brother has a criminal record, including convictions for aggravated break enter and commit serious indictable offence, threatening serious harm to a Commonwealth official, and using a carriage service to menace. He is presently imprisoned, serving a sentence of 18 years for a number of serious offences, including an offence of shoot with intent to kill. His sentence will expire on 23 April 2035; the NPP expires on 23 April 2029.

52. [59]

    The defendant’s links to members of the Group with whom he associated in 2014 is established by surveillance. There are others who have connections to terrorist activity with whom the defendant has maintained an association.

53. [60]

    During his current term of imprisonment, the defendant associated with Omar Baladjam, a male imprisoned for offences such as doing an act in preparation for a terrorist act. He is serving a sentence of 18 years. When the two were housed in separate institutions, the defendant wrote to Baladjam.

54. [61]

    He was also in contact in custody with Belal Khazaal, a terrorism offender whom the defendant appears to regard as a religious authority, and another sentenced terrorism offender, Tamin Khaja, who the defendant regards as a family friend and from whom he has sought religious guidance.

55. [62]

    The defendant’s co-offender in the index offences was Mustafa Dirani, a Group member. In 2019, Dirani was convicted and gaoled for conspiring to do an act in preparation of a terrorist act, relating to the murder of Curtis Cheng at Parramatta in 2015. Dirani is serving a sentence of 28 years imprisonment.

56. [63]

    The defendant has completed both the EQUIPS Foundation and EQUIPS Aggression programmes in custody. His principal engagement however, since 2017, has been with the Proactive Integrated Support Model, or “PRISM”, programme.

57. [64]

    PRISM is, according to Rachel Terry, a Senior Psychologist with PRISM, an enhanced case management model for offenders who promote, or are at risk of, engaging in violent extremism. It is designed to assist relevant offenders to disengage from extremist groups or beliefs, and reintegrate into society. Participation in PRISM is voluntary, and its interventions are individually tailored to assist the particular participant. There is no end date for the programme; it continues for such time as the individual may require, during that person’s incarceration. PRISM is not available outside the custodial system, although there is a parallel programme available, the Engagement and Support Programme (“ESP”).

58. [65]

    The defendant commenced engagement with PRISM in March 2017. There is a volume of material in evidence concerning his engagement with PRISM, including regular reports and notes of his engagement with the programme, and not all of it will be referred to here.

59. [66]

    In the early stages of his interaction with the programme, the defendant was regarded as consistently polite and friendly, but lacking insight into the problematic nature of his criminal and religious associates. He tended to minimise the seriousness of his criminal activity and the negative aspects of his religious beliefs; also reporting a history of anti-social and illegal conduct for which he had escaped charge. He said he was familiar with weapons, “stand-overs”, and drug offending, and many of his friends were involved in organised crime, including as members of motorcycle gangs. He reported consciously expressing anger through violence.

60. [67]

    In the early years of his remand and sentence, the defendant was designated an “Extreme High Risk Restricted” prisoner, and held in the High Risk Management Correctional Centre (“HRMCC”), where his associates were offenders charged with or convicted of national security offences who held extremist views. He consistently denied that he shared their extreme views, or endorsement of violence. He maintained that he had not been exposed to extremist views when in the community prior to incarceration, and denied any knowledge that his friends and associates held such views.

61. [68]

    After three or so years he was transferred from the HRMCC and, although managed as a “National Security Inmate”, he was housed in a minimum security area at Wellington Correctional Centre. It was thought that he had developed some level of insight into his crimes.

62. [69]

    An assessment in early 2018 of the defendant’s risk profile using the Violent Extremism Risk Assessment – Version 2 Revised tool (“VERA-2R”) recorded the defendant as falling in the medium – low range for risk of that nature.

63. [70]

    In April 2018, the defendant was reported to be “highly engaged” with PRISM and receptive to “ongoing interventions” with PRISM staff. He was willing to discuss religious ideology with the PRISM Religious Support Officer (“the RSO”) and had addressed a range of topics including religious extremism, and balanced religious practices.

64. [71]

    The defendant was focused on studying for a Diploma of Environmental Studies, his previous degree studies having been paused.

65. [72]

    In a report of November 2018, it was noted that the defendant continued to be “engaged and compliant”. He had participated in various exercises directed to encourage “an inclusive Australian identity” and balanced religious practice among other things. He presented as motivated to address risk factors, including negative peer relationships, and had agreed to implement some boundaries in communication with his brother, including a refusal to discuss religion.

66. [73]

    In February 2019, it was reported that the defendant continued to accept psychological, social, and theological support from PRISM staff. A Violence Risk Scale was completed and assessed the defendant as posing a moderate risk for general violence.

67. [74]

    In June 2019, the defendant was reported to have maintained contact with PRISM, remaining engaged with staff, and attending all sessions, typically interacting politely. The defendant had been transferred from Wellington to Bathurst Correctional Centre and was believed to have settled in well. He was employed in the library there and continued with his education.

68. [75]

    It was reported that the defendant continued to seek out religious guidance from the RSO, although what was felt to be a positive change was noted to be untested in a community setting.

69. [76]

    The defendant accepted an Intervention Plan that was drawn up in July 2019, which sought to encourage him to identify and address risk factors, and comply with Australian law. Family support, financial stability, and a schedule of positive community activities were all regarded as necessary features of the Plan.

70. [77]

    A Progress Report of 20 January 2020 was generally positive with the defendant considered to have continued to make progress, and to remain engaged with the programmes offered by PRISM. The defendant had been transferred from Bathurst to Dawn de Loas Correctional Centre in September 2019, and retained his minimum security classification. He was working as a general hand, although was unable to continue with his education because of a lack of resources at Dawn de Loas. There continued to be a need for the defendant to receive religious guidance, although it was noted that the defendant had rejected the use of religion to justify criminal behaviour. It was thought that he was developing insight into his criminal behaviour, and his decision making around the period when he had breached the ICO. He had indicated a willingness to accept guidance from a Corrective Services New South Wales (“CSNSW”) Muslim Chaplain, indicative of increasing acceptance of mainstream religious ideology.

71. [78]

    The defendant was noted to be making plans for a positive future, including developing a business plan for his release.

72. [79]

    On 4 February 2020, an Addendum report was prepared by Stephanie Scott-Smith to provide an update, including with respect to the defendant’s involvement in a group assault on an inmate that occurred on 11 January 2020. After the incident, the defendant was placed in segregation and moved to another correctional centre.

73. [80]

    During contact with PRISM staff following the incident, the defendant confirmed his involvement but did not provide details of his specific actions, noting motivating factors as that relating to a “sense of status and leadership within the group”, maintaining that his involvement led to less harm to the victim. During his contact with PRISM, it is reported that the defendant demonstrated limited insight into how this particular incident may relate to his long-term risk or risk upon release into the community. This suggested regression in his behaviour. The report writer, Ms Scott-Smith, opined that change detailed in the 20 January 2020 Progress Report overstated the defendant’s progress.

74. [81]

    Mohammed Trad, the RSO with the PRISM programme, has been regularly engaged with the defendant over the period of his participation. Mr Trad prepared a report dated 14 July 2020. As an overall observation, Mr Trad reported that the defendant remained receptive and in regular contact with the PRISM team since consenting to participate in the programme. That consent followed the defendant’s transfer from the HRMCC on 22 February 2017. The defendant was, at that time, given a National Security Interest (NSI) security designation and was recommended and approved for C1 Classification.

75. [82]

    The defendant is said to have maintained a willingness to engage in both education and employment. In session with PRISM staff and in interview with education staff, he has indicated an eagerness to recommence his education, a Diploma in Environmental Science at the University of Southern Queensland. He has also continued with employment in his custodial placement and, as at the date of Mr Trad’s report, was employed in the laundry. His work performance is viewed positively. Offender Integrated Management System (“OIMS”) notes detailed a willingness to work well with others, a good work ethic, and motivation to progress through the system. Earlier OIMS notes were similarly positive, with case notes entered by the Muslin Chaplain during the defendant’s time at Bathurst Correctional Centre encouraging. The Chaplain’s interactions with the defendant over the past few years were summarised as “an excellent working relationship”.

76. [83]

    Case notes referred to the defendant’s preparedness to cooperate with Terrorism High-Risk Offender Unit (“THROU”) staff for the purpose of risk assessment and intervention planning.

77. [84]

    The negative report concerns the defendant’s involvement in the group assault, with OIMS notes recording the inconsistency between the defendant’s asserted rejection of violence with his participation in an act of violence, apparently with some ideological component to it.

78. [85]

    Mr Trad noted that, in the period he considered since the previous report, PRISM psychology sessions with the defendant focused on increasing his readiness to make the transition from a custodial environment to the community, including addressing the defendant’s reported self-doubt in relation to coping within the community, his self-perception, and concern at the prospect of failure. It is noted that the defendant was open and willing to discuss his concerns regarding personal vulnerabilities, including “longstanding criminal attitudes and anti-social history”. The defendant also engaged in a detailed analysis of the impact of his relationships with former associates, and a self-analysis of the thought processes that had led to his involvement in the group assault upon an inmate in 2020. The defendant acknowledged his participation in the group assault and identified contributing factors which led to this behaviour. He was said to have engaged meaningfully in discussions around this issue, and showed growing insight into the discrepancy between his actions and stated religious and moral values.

79. [86]

    An intervention plan was developed with the defendant in July 2019 during PRISM sessions, based on a February 2018 PRISM Assessment and agreed goals made at that time.

80. [87]

    Reportedly, the defendant continued to engage with the PRISM RSO and available Chaplaincy services. Despite resource issues limiting the availability of theological intervention during the reporting period, it is noted that the defendant “actively sought theological guidance”, and “continued to demonstrate a commitment to engaging in theological intervention and improving his religious knowledge and understanding”.

81. [88]

    Mr Trad reported that the defendant had formerly identified “seeking status” as a “significant driver for him during his general criminal offending”, when on bail, and in the lead-up to being placed on a control order, having “enjoyed the status associated with his antisocial behaviours”. However, after entering custody, religion has remained a “pro-social driver”, evidenced by the defendant’s employment of “pro-social self-regulation strategies derived from religious teachings to manage conflicts with other offenders and seeking religious advice on business and interpersonal matters”. Mr Trad regards this as signifying an increased awareness of and willingness to utilise available pro-social supports to aid decision-making, supporting the defendant to live a life consistent with his values and beliefs.

82. [89]

    The defendant is noted to have had a tendency to engage in “boundary-pushing behaviours”. Subsequently, PRISM worked with the defendant to develop insight into risks associated with this behaviour, and ways to live an offence-free life, and he has demonstrated an ability to adhere to the rules imposed; lapses have also been examined to increase his insight.

83. [90]

    It is reported that the defendant “appears to be motivated to build insight into his offending behaviour and associated risk-related behaviours”. Whilst the defendant has engaged in relevant intervention, he was assessed to require further commitment to changing his behaviour.

84. [91]

    Contact with anti-social associates has been identified as a risk factor for the defendant in relation to his past offences, and in connection with the events leading to him being placed on an ICO. Previously, the defendant is said to have displayed “a tendency to minimise the risk posed by anti-social associates”, and the January 2020 assault highlighted a continued vulnerability to involve himself with anti-social associates and activities. Motivating factors are said to have included a desire for status and group-belonging.

85. [92]

    While the defendant recognised the need to develop pro-social associates, he has continued to associate with inmates with general criminal and gang affiliations. This has remained an ongoing concern to PRISM staff, and the defendant’s commitment and capacity to develop positive relationships is noted to remain untested outside his current custodial environment.

86. [93]

    Mr Trad stated that available information suggests that the defendant has ceased contact with associates implicated in violent extremism. Additionally, he has demonstrated an ability to maintain distance from these inmates for an extended period. Notably, this too remains untested in a less-restrictive setting and whether this would translate to his community environment remains to be seen.

87. [94]

    Although the defendant has attempted to practice change in relation to his peer associations, the ability to build alternate more positive relationships has remained limited due to his incarceration. Despite this, the defendant is said to be open and engaged in the process of understanding the impact of peer associations and decision-making regarding future peer affiliations on community release.

88. [95]

    It is reported that during the previous reporting period, the defendant displayed limited insight into the challenges he will face upon reintegration into the community, whilst abiding by potential release conditions in the context of a history of non-compliance with community supervision.

89. [96]

    The defendant has continued to receive support from his immediate and extended family, primarily pro-social in nature. Reportedly, his family have recently been more challenging and questioning of the defendant’s self-report regarding past behaviour. His family have engaged with PRISM and the defendant has continued to receive “positive visits” from his immediate and extended family.

90. [97]

    PRISM intervention sought to assist the defendant to make good choices, developing insight into his personal values and how this fits with his understanding and acceptance of his religion, which has been identified as an area requiring ongoing support, particularly concerning his reintegration into the community. Reportedly, the defendant fluctuated between recognising the importance of building a pro-social identity and anxiety associated with his lack of confidence. He characterises his previously anti-social lifestyle as interesting and exciting, even though he understands that it is a “bad” lifestyle.

91. [98]

    The defendant is assessed to fall within the “Preparation stage of change”, and will likely require a period of community living in order to demonstrate further progression.

92. [99]

    On the defendant’s release from custody Mr Trad recommended that:

93. [100]

    Should the defendant be made the subject of an ISO or ESO, but not otherwise, he will be advanced to the “discharge phase” of PRISM, receiving 12 weeks of support in the community, during which time an “extended handover” to the ESP is conducted. The purpose of the handover would be to allow the two agencies to design a service delivery programme for the defendant that best suits his needs.

94. [101]

    With respect to the defendant, recommended assistance in the community includes linking him with a religious mentor, supporting him in engaging in further education, and assisting his family to support him.

95. [102]

    If no ESO is made, although PRISM will not be available to assist the defendant in the community, the ESP may still assist him, if he is found to be eligible.

Reports from Dr Pulman

1. [103]

   Dr Pulman is a forensic psychologist and clinical neuropsychologist. She interviewed the defendant on 19 September 2019 in the context of a risk assessment for use during hearings before the State Parole Authority.

2. [104]

   Dr Pulman provided two reports, of 2 October 2019 and 29 May 2020, following assessments she had made of the defendant.

3. [105]

   Dr Pulman took a history from the defendant, and comprehensively set out the details of the defendant’s personal history, including his family circumstances, educational and vocational background, his account of the offences for which he is imprisoned, and his conduct and progress whilst incarcerated.

4. [106]

   The defendant told Dr Pulman that the PRISM course had made a real difference to him, and that he would like to continue the programme when released into the community. He believed it helped him gain insight into his behaviour, the risks of being associated with a negative peer group, and the importance of focusing on future positive goals.

5. [107]

   Dr Pulman noted in her first report that there was no indication that the defendant had been engaged in any violent behaviour during his incarceration. He had associations with people who are considered to hold extremist beliefs in custody, and had institutional misconduct charges for unlawfully using a phone or fax, intimidation, and failing to comply with correctional centre routine. Dr Pulman noted that, CSNSW OIMS notes recorded that the defendant was influenced by other Muslim offenders, including those with confirmed extremist beliefs, although the depth and nature of his religious ideology was unclear.

6. [108]

   In relation to his criminal history, the defendant told Dr Pulman that he had talked about his offending behaviour as a component of the PRISM programme. In his teenage years he had aspired to the “gangster way of life”. He gave an account of the offences for which he is serving a sentence, acknowledging that it “got out of hand and I take responsibility for my actions, I didn’t know however that they were going to turn up with weapons, I thought we were just going to have a fight and it would all be over with”. After being released from prison, he was placed on an ICO, and acknowledged to Dr Pulman that he had breached the order, but did not appear to her to accept the significance of the breach, stating he was using a pay phone and “wasn’t doing anything sinister”.

7. [109]

   Dr Pulman questioned the defendant about his knowledge of groups such as IS, and the defendant responded that initially he had considered that “everyone supported ISIS at Goulburn, that you shouldn’t trust mainstream, we thought great when ISIS first started as it means Islam will spread, it’s our faith”. Having engaged with the Imam with the PRISM programme, he said that he understood “the need to trust those who are educated in the religion, to trust in the community, those who had completed their qualifications in the Islamic faith”. He acknowledged that he had learned how to read Arabic from other high security classification offenders convicted of national security offences, and described being exposed to general discussions in regard to terrorist offences and organisations. The defendant maintained that at no stage did he support any form of ideologically motivated violence, and has renounced the actions of offenders convicted of national security offences and the legitimacy of terrorist organisations.

8. [110]

   Dr Pulman noted that the defendant’s reports of having a naïve understanding of terrorist groups before entering into custody stood in contrast to the material found from the counter terrorism raids to which the defendant had been subjected, and the nature of his religious associates.

9. [111]

   Dr Pulman noted that the defendant’s PRISM reports identified his contact with alleged and confirmed extremists, including family and friends, as his primary extremist violence risk indicator. Dr Pulman noted that the defendant had expressed views that he does not hold any religious belief or attitude which condones violence or engagement, or encouragement of terrorism related activities. She concluded that it remains indeterminate:

10. [112]

    The defendant denied any current motivation to engage in any activities supporting violent and religious extremism. Dr Pulman noted that he had demonstrated identification with group activities, and the associated excitement and adventure, and “his ability to reject this lifestyle is yet to be tested”.

11. [113]

    Dr Pulman concluded that the defendant’s educational, employment, and criminal history suggested antisocial tendencies and difficulties with self-regulation. She thought that it was difficult to determine the level of risk of the defendant engaging in, or inciting or assisting others to engage in, terrorist acts or violent extremism, given that “his expressed view and beliefs cannot be tested within his current custodial environment”. Dr Pulman noted that a number of risk factors identified as part of his involvement in the PRISM programme continued to “present challenges for which [the defendant] reportedly requires ongoing support”. The reports stipulated that the defendant continues to minimise the risk of contact with his previous associates, and Dr Pulman noted that this suggests that there continues to be some risk that he may re-engage with previous, or make new, associates who are prepared to engage in “terrorist acts, or that he may be influenced by the view of such associates”. Risk assessment tools administered to the defendant informed Dr Pulman’s opinions as to the risk of extremist violence, and violence more broadly.

12. [114]

    On 14 August 2020, Dr Tamara Sweller, Acting Senior Psychologist of the THRO Psychology Team, prepared a Risk Assessment Report (“RAR”) in relation to the defendant. The report was prepared at the request of The Commissioner, CSNSW, and in anticipation of the present application. The recommendations expressed by Dr Sweller are supported by Katrina Czerkies, Senior Psychologist of the THRO Psychology Team.

13. [115]

    Dr Sweller conducted an interview with the defendant via an Audio Visual Link (“AVL”) on 17 February 2020. He participated in a total of approximately seven hours of interviews; in person on 20 February and over AVL on 28 February, 6 March and 6 August 2020. Dr Sweller was also provided with the voluminous documentary material for the purpose of preparing her report.

14. [116]

    At the time of the interview, the defendant was a 26 year old man of Afghan descent. Dr Sweller described him as “cooperative”. She noted that he frequently smiled throughout the assessment, with the defendant describing this as automatic behaviour rather than a conscious decision. He presented as ingratiating, and identified “his desire for others to like and accept him”. Prior to the commencement of the assessment, the defendant explained to Dr Sweller that he believed people misunderstand him. Dr Sweller noted that this appeared related to his “perception that individuals in authority tend to draw erroneous conclusions about his motivation based on things he says”. He also told Dr Sweller that he had poor eye contact when speaking, attributing this to shyness and a cultural characteristic, and wanted Dr Sweller to understand that his poor eye contact did not mean he was lying. When questioned in the second interview about his shyness, he stated that he did not know why he made this comment as he is definitely not shy.

15. [117]

    Dr Sweller described the defendant as a “somewhat inconsistent historian, or a person seeking to minimise his problems or concerns”. In the second and third interviews, Dr Sweller noted that the defendant sought to “clarify information he had provided previously to ensure the author did not misunderstand comments he had made”. She stated that his responses to questions tended to be “vague, superficial and inconsistent” noting that, when he tried to clarify information, he spoke “tangentially, or his explanations did not resolve the discrepancy”. At the conclusion of the third interview, the defendant reported that he could not speak openly, and that there were things he is not willing to discuss with Dr Sweller or with PRISM staff, as he “needs to protect himself from being misperceived”, relating this to his previous “fabricated charges”.

16. [118]

    Dr Sweller traced the defendant’s psychosocial history, beginning with his family history. The defendant’s parents migrated to Australia from Afghanistan approximately 30 years ago. His father worked as a security guard and cleaner, and his mother was employed both in a support service for Afghan refugees and on a “process line”. Dr Sweller noted that the defendant had since reported that both his parents were currently unemployed.

17. [119]

    The defendant was born in Sydney and his brother, who is three years older, is currently incarcerated. Dr Sweller noted that the defendant had previously reported experiencing a good upbringing, but that his brother and himself spent holidays unsupervised due to his parents’ work obligations.

18. [120]

    Referring to the PRISM material provided to her, Dr Sweller noted that the defendant had reported feeling that his parents misunderstood him, having experienced inconsistent punishment. He also reported being exposed to domestic violence against himself and his parents until he was in year 7. His parents had separated on a few occasions, but remained together. He had regular telephone contact and visits from his parents and approved members of his extended family throughout his incarceration.

19. [121]

    Throughout his schooling, the defendant engaged in “disruptive behaviour related to boundary-pushing and attention-seeking”. From documentary material provided, Dr Sweller noted that the defendant reported feeling bullied by teachers at school and had been hit by a teacher in primary school, leading to difficulties with authority. He was regularly placed on detention and had periods of suspension, mostly due to fights. He identified having an anti-social lifestyle at high school, with a number of his then associates later incarcerated for criminal and national security offences.

20. [122]

    He completed his Higher School Certificate and attended university, completing one semester of a Bachelor of Arts degree prior to committing the index offence. He felt that he did not belong at university and did not return due to “religious reasons”, on advice from his brother [to the effect that women should not be educated at the university].

21. [123]

    The defendant has a limited history of unskilled employment. He lived with his parents until incarceration, primarily relying on them for financial support. He reported to Dr Sweller that he had an interest in studying physiotherapy at university in the future, and intended to seek employment wherever he could on release. He also expressed his interest in developing a business venture in the future, in relation to the importation/exportation of energy drinks.

22. [124]

    The defendant had a limited history of romantic relationships, reporting one relationship in high school which ended when his partner changed schools and discovered the defendant had relationships with other girls. He reported that his relationship history included only casual sexual partners, a function of what was described as his “gangster lifestyle.” The defendant engaged in alcohol use and recreational substance use including ecstasy, cocaine and marijuana from approximately the age of 17 until his arrest. He denied that this was problematic or related to his offending. At times, he used illicit substances on a weekly basis. He ceased use in June 2013, and denied any history of illicit substance use whilst incarcerated although he did not appear to have been subject to urinalysis testing in custody.

23. [125]

    Dr Sweller noted that the defendant had a history of being diagnosed with Panic Disorder and Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. To Dr Sweller, he did not report any ongoing mental health concerns. Dr Sweller administered the defendant the “Minnesota Multiphasic Personality Inventory – 2 Restructured Form (“MMPI-2RF”) on 20 February 2020. Dr Sweller believed that the defendant’s responses reflected an individual who “considers himself free from significant somatic, thought, emotional or interpersonal dysfunction.” He reported a high level of emotional adjustment, with minimal feelings of self-doubt, inefficacy, or anxiety. Dr Sweller noted that he reported an “above-average level of stress and worry, which may be expected for an individual in Mr Osman’s current circumstances.”

24. [126]

    Dr Sweller also summarised the defendant’s religious ideology. She noted that the defendant is a Sunni Muslim, and that he had previously reported that his family identified with the Hanafi school of thought, but his preference is to follow the Salafi school of thought as the strongest Islamic opinion. He told Dr Sweller that he did not follow a particular school of thought, but he tried to “find information from scholars regarding the beliefs that have the strongest evidence.” He indicated that this is known as the Salafi school of thought. He preferred not to describe himself as Salafi, stating to Dr Sweller “I’m more nuanced”.

25. [127]

    Dr Sweller noted that the defendant was not exposed to a religious upbringing; his mother intermittently engaged in religious practices and his father did not practice his faith. She stated that the defendant had reported “inconsistent information regarding his commitment to Islam.” To Dr Sweller, he reported that his brother had no influence on his decision to practice his religion. He also reported that he took “as gospel”, the information his brother provided him in relation to religion. Dr Sweller pointed out “discrepancies” between the defendant’s reports of life events and his increased “religiosity”, and that he had reported that his increased religiosity had occurred either just prior to, and in response to, the commission of his index offences. She stated that his motivation to engage in religious practice remained “consistent” and he “identified his desire to disengage from anti-social and criminal behaviours”.

26. [128]

    At university, the defendant attended the Prayer Room, leading to him engaging in Arabic lessons. He followed his brother’s religious beliefs, not those of his friends at university, as his brother “got in first”. He had previously reported intermittently attending Salafi-based religious institutions in the community. He engaged in prayer five times daily, and engaged in his first period of Ramadan when he was 20 years old. Dr Sweller noted that he had limited religious knowledge at the time, and primarily “sought religious advice and guidance from a number of his brother’s friends, some of whom are now incarcerated for terrorism-related and national security offences”.

27. [129]

    PRISM Progress Notes show that the defendant’s attraction to the religious teachings recognised by this group was the presence of clear rules. His brother had advised him that attending a Western university where both genders were present was not permissible under Islam. The defendant, due to his limited knowledge at the time, followed his brother’s advice, and did not return to university after being granted bail for the index offences. Since then, the defendant has “changed his views about studying alongside women and intends to return to university studies upon his release”.

28. [130]

    During incarceration at the HRMCC, the defendant continued to pray five times daily, and reported an increase in his level of religious knowledge from AA classification offenders who had been convicted of national security offences. Dr Sweller noted that, during the latter stages of the defendant’s incarceration, the defendant sought pastoral care from CSNSW chaplaincy at Wellington, and remains involved with the PRISM Religious Support Officer.

29. [131]

    When he moved to Dawn De Loas Correctional Centre in 2017, the defendant “sought to move all Muslim inmates to his side of the cell block”. According to OIMS case notes from March 2017, the defendant was reported to engage in five prayers daily, and did the ‘call outs’ for prayer “loudly.”

30. [132]

    Dr Sweller summarised the defendant’s peer associations, noting that:

31. [133]

    The defendant told Dr Sweller that his co-offender, Mustafa Dirani, was his best friend throughout primary school and early high school years, and that they reconnected in year 12 and began engaging in anti-social and criminal behaviour together. They also attended the Macquarie University Prayer Hall together. As previously noted, Dirani is presently serving a lengthy sentence for conspiracy to do acts in preparation of a terrorist act in 2015.

32. [134]

    When the defendant was 19 years old, he decided to distance himself from his anti-social associates and become more involved with Islam. He connected with one of his brother’s friend, Wassim Fayad, who became his “religious mentor” and that “when he talked, it made sense”. Fayad introduced him to aspects of religious practice that he had not been exposed to previously, including attending an Islamic funeral and engaging in charity. He became involved with a group who reportedly hold extremist ideologies.

33. [135]

    While at HRMCC, the defendant was supported by offenders who were associated with his brother, and he also had contact with other individuals he had known in the community. Dr Sweller noted that the material provided to her showed that the defendant had (reportedly) sought to distance himself those who would be classified as “radicalised” upon his incarceration in 2016. Dr Sweller also pointed out that, contrarily, the defendant had also indicated that some of his associates at the HRMCC applied a strict interpretation of the Islamic faith, and reported maintaining relationships with criminal associates and individuals with links to extreme Islamic ideology while incarcerated, through shared placements and written communication.

34. [136]

    The defendant reported ceasing contact with some of his associates in the months leading up to an earlier parole hearing, due to their negative public profile. He maintained contact with his brother at the HRMCC, and did not consider him to have had a significant influence on his own history of criminal and anti-social behaviours. Dr Sweller noted that the defendant had asserted to PRISM staff that he had implemented boundaries in his relationship with his brother, such as ceasing communication with him about religion and refusing to initiate contact with his brother’s community-based associates, despite his brother attempting to facilitate this contact.

35. [137]

    To Dr Sweller, the defendant reported having ceased contact with his brother “so that those in authority would not assume that his brother has a negative influence on him”, and indicated that his last written correspondence with his brother was at the beginning of 2018. From the documentary material provided to Dr Sweller, she noted that he continued to receive letters from his brother but did not appear to have responded to these letters.

36. [138]

    In custody, he had continued to associate with inmates with general criminal and OMCG affiliations, but indicated to PRISM staff that he intended to reduce this contact in custody and the community. Dr Sweller noted that the defendant had not sought contact with friends who were not involved in criminal activity during his incarceration due to his assumption that they would not want contact with him. He reported no intention to reconnect with these individuals after release. He told Dr Sweller that he intended to develop new relationships through university and employment. He also reported that he had some pro-social relationships with his extended family.

37. [139]

    Dr Sweller summarised the defendant’s history of violence and criminality. The defendant reported a history of anti-social and criminal behaviours. The defendant refused to discuss information relevant to the charge of ‘Do act in preparation/planning for terrorist act’ with Dr Sweller, a charge brought against the defendant that was withdrawn in 2016. To Dr Sweller, he reported that he could not remember the names of his co-accused, as their “kunyas” were used at the HRMCC; although he was unable to identify the latter names.

38. [140]

    Dr Sweller noted that the defendant’s “primary elevations” within the MMPI-2RF results related to his history of violence and general criminality, specifically in the area of behavioural dysfunction. He reported “various manifestations of disconstrained behaviour including engaging in acting-out behaviours, impulsivity and sensation-seeking.” Dr Sweller noted that the defendant had provided inconsistent information regarding his history of violence and aggression. The defendant described being motivated by a desire to appear “tough” when using threats in the past, with no intention to follow through with his threats. Dr Sweller noted that it was possible the defendant sought to minimise his use of overt violence in order to present himself in a more positive light. She noted that it was also possible that he genuinely did not perceive threats and intimidation as acts of aggression or violence.

39. [141]

    The defendant reported that throughout his life, he tended to “dance on the boundary” which led to crossing the boundary and continuing to engage in anti-social and criminal behaviour. He had poor problem solving, which was heightened “at times when he perceived his reputation to be at risk.” He reported a tendency to bottle up emotions such as anger in response to feeling insulted by others, but denied engaging in reactive violence.

40. [142]

    Dr Sweller summarised the defendant’s history in relation to his support of violent extremism or politically motivated violence. She noted that the defendant’s involvement with men known to espouse an extremist ideology was facilitated by his brother. In the documentary material provided to Dr Sweller, the defendant’s brother maintains his beliefs associated with an extremist ideology and openly discusses this through written communication with the defendant and other inmates.

41. [143]

    In June 2011, it was noted that police attended a domestic call out after the defendant and his brother had had an argument with their father regarding the actions of Al-Qaeda. The defendant and his brother had allegedly told their father that they believed the principles of Al-Qaeda should be followed, and their father told them he wanted them to move out. To Dr Sweller, the defendant denied that the argument related to Al-Qaeda, maintaining that he had heard of Al-Qaeda and the Islamic State at the time, but did not know anything about the organisations until his incarceration at the HRMCC.

42. [144]

    The defendant reported to Dr Sweller that he had listened to “The Life of the Prophet” series, which she noted was written by a known radical American Muslim cleric. Dr Sweller noted that the defendant attended religious venues where extremist ideologies were promoted with his religious associates. Dr Sweller observed that their ideology was:

43. [145]

    Dr Sweller stated that there was evidence of phone calls and surveillance of the defendant and his associates showing they had a significant level of contact with each other, and there were plans to carry out a terrorist act. The defendant denied having suggested any such plan to his brother and maintained to Dr Sweller that he has never had any interest in engaging in behaviour of this kind.

44. [146]

    The defendant reported that, of his associates, he was closest with Wassim Fayad, but had only received general religious knowledge and guidance from him. The defendant denied to Dr Sweller ever having considered conducting a terrorist attack or having the motivation to do so, despite the records relating to his November 2014 visit to Fayad in custody.

45. [147]

    The defendant told Dr Sweller that, apart from Fayad, he was closest to Mr Al-Talebi having known him since school, as his brother and him went to school together. Mr Al-Talebi is currently incarcerated for terrorism offences. Dr Sweller noted that Naizmand, incarcerated for breaching a control order, had requested another member bring the defendant to visit him, and that while Mr Naizmand was incarcerated, the defendant drove his vehicle. The defendant indicated to Dr Sweller that the only reason he was included in the counter terrorism raids was due to his associations. His associates questioned why he was raided, implying that he was not involved. Dr Sweller stated that the raids were meaningless to him because he was used to this lifestyle as a “gangster”, and this was why he, in response to the raids, was not affected. The defendant indicated that “he sustained these relationships because he thought it was beneficial to spend time with these individuals as they were religious”. The defendant maintained that he had never supported ideologically motivated violence.

46. [148]

    Dr Sweller noted inconsistencies between comments the defendant made to the PRISM team and those made during her assessment, and his behaviour. The defendant acknowledged to Dr Sweller that he was present during discussions regarding his associates’ extremist ideology and intentions, and knew his associates were engaging in problematic behaviour, such as engaging in discussions about Islamic State. The defendant reported listening to inmates with extremist ideologies and their conversations about their ideology, but stated that it did not “feel right” to engage and he did not contribute. Dr Sweller noted that he had a particularly positive relationship with one inmate, who he referred to as a “sheik”, as he had shown the defendant the “depth” of the religion. The defendant asserted that he did not agree with this inmate’s behaviour related to his terrorism offence or his ideology.

47. [149]

    During 2015 and 2016 in custody, the defendant had received 10 charges for institutional misconduct, for offences such as fail to comply with correctional centre routine, intimidation, damage or destroy property and unlawfully use phone or fax. The defendant told Dr Sweller that he could not remember the context of his charges for intimidation. He stated that it was easier to be charged in the HRMCC, in comparison with other centres. On 19 February 2020, the defendant was again charged for using a language other than English whilst on the phone with his father.

48. [150]

    The defendant told Dr Sweller that, in 2015 when he had engaged in two hunger strikes, he had participated in these due to peer pressure, but acknowledged feeling “unheard” within the system, and also considered using this strategy at other times during his incarceration as a form of protest.

49. [151]

    On 27 January 2017, the defendant was identified as a “National Security Interest” inmate. On 13 January 2020, the defendant was subject to a segregation order following his participation in the group assault of another inmate who was new to the centre. On 31 January 2020, he was placed in segregation for “Threat to Good Order and Discipline”, where he reportedly made threats to another inmate, relating to conflict between the defendant’s brother and this inmate. No institutional charges resulted and his classification remained the same.

50. [152]

    Dr Sweller noted that the defendant has a limited history of community supervision. While on bail, he breached his ICO. Dr Sweller stated that “his breaches were related to his anti-social attitudes, such as lack of care about rules and the consequences of breaking rules”.

51. [153]

    Various risk assessments were administered to the defendant in custody. The defendant was last administered the Level of Service Inventory – Revised (“LSI-R”), an actuarial risk instrument consisting of both static and dynamic risk factors related to general reoffending that provides an indication of a level of general and violent recidivism, on 21 March 2017. This assessment saw the defendant return a score of 27, and he was assessed as “Medium risk”. Dr Sweller noted that NSW data showed “54% of offenders who were assessed as Medium risk reoffended and returned to CSNSW within two years”.

52. [154]

    The defendant was also administered the Violence Risk Scale (“VRS”) by Dr Sweller on 20 February 2020, 28 February 2020 and 6 March 2020. The VRS is an actuarial risk assessment tool used to assess the risk of violence, in particular, for those who are being considered for release from institutions to the community after a period of treatment. It assesses both static and dynamic risk factors over the life-course to provide a probability of an individual’s risk for violence, and relevant treatment targets. The defendant’s score was compared to a group of 918 federally sentenced Canadian inmates who had also been rated on the VRS. Of those offenders who obtained a similar score to the defendant, 34.5% were criminally convicted for a new violent offence within 4.4 years after release to the community. The mean reconviction rate for violent offenders in the sample population was 56.2% within 4.4 years. Dr Sweller concluded that the overall results of the VRS indicated that the defendant’s risk of violence fell within the “Moderate” category of risk.

53. [155]

    Dr Sweller concluded that the defendant likely developed pro-criminal attitudes during his school years. She noted that, due to the inconsistent punishment received for his problematic behaviour at home and at school, the defendant gained a “sense of excitement through engaging in such behaviour and ‘getting away with it’”, developing an attitude that it was acceptable to engage in poor behaviour if he did not get caught. He continued to engage in anti-social behaviour into adulthood. Dr Sweller noted that he “maintains some criminal attitudes, which appear to surface when he feels mistreated by those in authority or when he seeks to maintain his status amongst peers”. He reported that he is changing his attitudes, but Dr Sweller noted that there was currently limited evidence to support this; pointing to his recent involvement in a group assault against another inmate where he identified his attempt to “get away with it”, and feelings of “criminal pride” due to others’ perception that he is “the guy who can’t get out”. Dr Sweller stated that this likely related to his desire for status amongst peers.

54. [156]

    Dr Sweller noted that the defendant has a tendency to engage in problematic behaviour to achieve his goals, lying and manipulating others for his benefit. She stated that he had a lengthy history of associating with criminal peers, and engaging in behaviour that “provided him with a sense of excitement and importance”. In custody, he maintained written correspondence with other inmates who were high profile members of organised criminal networks.

55. [157]

    During his engagement with PRISM, Dr Sweller noted that the defendant had reportedly “appeared aware of the problematic nature of a number of his associates and he asserted that he has begun to experience negative feelings towards anti-social peers”. He had expressed a willingness to distance himself from unhelpful associates upon release. However, Dr Sweller noted that, as expressed in PRISM documentary material, he did not know how to change his attitude towards a ‘gangster’ lifestyle and negative peer associations. Dr Sweller concluded that “his engagement in violence and aggression generally appears to be instrumental and primarily related to thrill-seeking and his desire to maintain his reputation and status amongst his peers”. She noted that, when he “felt disrespected or if he perceived an expectation from others, he engaged in aggression to seek revenge and maintain his ‘gangster’ persona”, engaging in behaviour without considering the consequences.

56. [158]

    To Dr Sweller, the defendant attempted to provide justifications for his behaviour, minimising the significance of his violence and the motivations behind his decisions and externalising responsibility of institutional misconduct charges. Dr Sweller opined that justifying behaviour and minimisations of its severity “may increase Mr Osman’s likelihood of engaging in problematic behaviour such as violence in the future”. She also noted that the defendant’s family tended to minimise his problematic behaviour.

57. [159]

    The defendant was also assessed by the VERA-2R, which assesses the risk of extremist violence across various domains; using empirically supported indicators determined by collaboration with law enforcement, intelligence, national security and corrections professionals working in the field of violent extremism. The VERA-2R was administered to the defendant by Dr Sweller on 7 August 2020. His overall risk profile for extremist violent offending/re-offending was assessed as being in the “Moderate-High” range. Dr Sweller sought the assistance of two colleagues trained in the use of the VERA-2R to engage in a process of blind scoring the evidence sheet to ensure “interrater reliability of the overall profile”.

58. [160]

    The indicators that may increase the defendant’s risk of engaging in violent extremism primarily relate to his contact with individuals who hold an extremist Islamic ideology, and those who have been convicted of terrorism offences. Dr Sweller opined that the defendant’s contact with those who hold an extremist ideology “may increase his risk of choosing to engage in terrorism-related activity in the future”, which could be further heightened by “his access to sources of help, and capacity and willingness to use violence”.

59. [161]

    Dr Sweller noted that there is limited information regarding his current religious ideology, describing the defendant’s self-reported descriptions as “vague and superficial”. She concluded that, as a result of this, the relevance of this risk indicator is unknown. He denied having developed a violent extremist ideology, citing his religious influences as protective against such an ideology. In contrast with this, Dr Sweller noted that his religious influences were “individuals known to espouse an extremist ideology, many of whom are currently incarcerated in the HRMCC for terrorism offences”, and that the defendant was reportedly present during discussions that included anti-Western sentiments and expressed sympathy for violence against non-Muslims. She noted that it was possible that the defendant’s knowledge, gained from his peers and his own self-education, led to his development of similar beliefs. He denied being aware of any potentially problematic religious interpretations in material he had access to.

60. [162]

    Dr Sweller stated that it was unknown whether this perspective was because the “content was reflective of the interpretation that had been normalised for him, or if it was a reflection of his minimisation of the problematic nature of the material he consumed”. Dr Sweller opined that, if it was the latter, it could increase his likelihood of using such material in the future, noting that he may gain access through his peers and lack the critical thinking or awareness to recognise the potential influence this had on his worldview.

61. [163]

    Dr Sweller noted that the defendant has “expressed anger and frustration towards those in authority” and due to his criminal and religious peer influences, was exposed to attitudes against the police and Western governments, “which likely further cemented his sense of injustice”. To Dr Sweller, he reported having made changes in attitudes, but she noted that some of the defendant’s comments still suggested that an underlying grievance remained. She stated that his “ability to manage his emotions in a more effective manner has not yet been tested in the community”.

62. [164]

    The defendant reported having distanced himself from his unhelpful peers and that his last written communication with his brother was in 2018. Dr Sweller noted that his motivation for ceasing contact appeared to be his desire for release from custody, and “his insight into the intrinsic problematic nature of these relationships appears to remain limited”. She concluded that, due to the defendant’s intention to reconnect with his brother in the future and the ease with which he could re-establish contact with previous associates, “his access to funding and sources of help remains a relevant risk indicator, particularly without external intervention to limit this”. The defendant reported to Dr Sweller that he knew how to get an illegal passport had he wanted to leave the country in the past. The defendant had engaged in written communications with other inmates known for involvement in criminal networks, and could gain access to funding through these associations.

63. [165]

    Dr Sweller also noted that the defendant’s involvement in the group assault in custody suggested that the importance he placed on religion, asserting that religion was his motivation to move away from criminal activity, however, remains “insufficient to mitigate his risk of violence.”

64. [166]

    Dr Sweller also stated that, despite the defendant reporting that he sought to change his behaviour recently, there is “evidence to suggest that Mr Osman continues to engage in behaviour in order to maintain his reputation and status amongst his peers” and thus, may be more likely to “engage in unhelpful behaviour to gain approval from his peers”. Dr Sweller noted that the defendant may also remain susceptible to “influence from negative peers, including those who hold a violent extremist ideology.” The defendant denied historical or current motivation to engage in acts of violent extremism, and Dr Sweller did not have any direct evidence to suggest this. She noted that, however, information contained in the materials provided to her suggested “that he may have developed plans to engage in a lone act of violent extremism”. She concluded that, due to the defendant’s susceptibility to influence, “he may be more vulnerable to these risk areas becoming relevant for him again in the future”.

65. [167]

    Dr Sweller noted that the defendant’s relevant “risk describing indicators” were evident in his historical anti-social and criminal behaviour and involvement in the Group. His primary motivation was “his desire to gain status amongst his peers, in addition to a sense of excitement, approval and acceptance from others, and criminal opportunism.” It was possible that his initial involvement in the Group was a result of his search for meaning and significance in life, and continued involvement may have been “related to feeling accepted and respected due to his brother’s status within the group”. Dr Sweller opined that the defendant appeared to seek a sense of belonging through building his reputation, and if he were to be rejected by others in the future, “he would likely attempt to rebuild his status through shared behaviour within the group he is seeking to connect with”.

66. [168]

    Dr Sweller noted that, as the defendant denied ever having held a religious ideology that promoted the use of violence, his “level of change in relation to his interpretation of Islam is unknown”. She pointed out that the defendant presented as willing to discuss his religious beliefs and worldviews with the PRISM team and during her own assessment, albeit on a “surface-level or to a superficial extent”. If he were to recommence communications with “unhelpful influences” in the future, Dr Sweller believed that the protective nature of his openness to discussing his ideology would be reduced. To Dr Sweller, the defendant stated that the only situations where violence was acceptable was in relation to self-defence, including engaging in war if other options have failed and the situation is “eat or be eaten”. Dr Sweller noted that the defendant’s recent involvement in the group assault in custody and justifications for this behaviour reflected an acceptance of violence in circumstances other than self-defence. It remained unclear whether this translated to support of similar behaviour in the context of religious or ideological beliefs.

67. [169]

    Dr Sweller noted that there was some increase in the defendant’s awareness of vulnerabilities and risk indicators in his PRISM reports. His behavioural change appeared “limited” however. Dr Sweller stated that this may be due to his level of engagement and motivation or restricted due to his ongoing incarceration. She stated that, overall, the defendant appears to be “externally motivated, such that his primary goal is to gain release from custody”. He reported a willingness to be referred to the ESP upon his release from custody

68. [170]

    Despite the intentions of his family and himself, Dr Sweller believed that the defendant appeared to have limited reintegration plans and the suitability of his community support was unconfirmed. Dr Sweller noted that his family was his only support network and that there appeared to be some limitations in the support that they could provide him. They appeared to have limited insight into the depth of his problematic criminal and religious associates and the nature of the defendant’s anti-social and criminal behaviours. His parents also appeared to have facilitated contact between the defendant and his brother, and his cousin, a lawyer, presented with hostile attitudes towards CSNSW and frustration in relation to the consequences of the defendant’s rule violations. Dr Sweller stated that the influence of the cousin’s attitudes on the defendant is unknown.

69. [171]

    Dr Sweller noted that, despite demonstrating understanding of the key points and insight in EQUIPS Aggression, the defendant continued to engage in rule violations and had participated in a group based assault in custody.

70. [172]

    Dr Sweller regarded the following risk scenarios as relevant to the defendant’s potential to engage in serious terrorism activity. She noted that his desire for status and sensation-seeking may make the defendant more susceptible to the influence of his peers who express violent extremist belief and have been incarcerated for national security offences. His vulnerability to an extremist interpretation may be increased by his adherence to a Salafist interpretation of Islam, in combination with his superficial understanding of Islam. He also may be “more inclined to maintain loyalty to others regardless of the problematic nature of their beliefs and behaviour” and, if exposed to unhelpful religious associates in the future, “he may be at greater risk of engaging in poor decision-making”. He may seek to maintain his reputation, attain a sense of power and gain excitement through “risk-taking behaviour”. Dr Sweller concluded that, if the defendant does not seek “to develop pro-social peer relationships and community connections such as through education or employment, he may be more likely to seek contact with his previous associates”. If he restabilises contact with anti-social peers, it may increase his risk of engaging in terrorism-related activity such as foreign- incursion offences, or may facilitate his access to weapons. To this end, Dr Sweller stated that:

71. [173]

    Dr Sweller suggested that the defendant may present as compliant with conditions and directions received from his supervising officers, but may engage in secrecy and withhold relevant information. He may attempt to break the rules “in a covert manner” and, due to his susceptibility to influence, contact with his brother may “reinforce problematic attitudes and religious beliefs, in addition to a sense of grievance towards the system and towards Australian democratic society”. She opined that, if the defendant was to become involved in violent extremism in the future, it would be likely that he followed a similar pattern to his criminal behaviour in the past, including group-based interactions. His likelihood of engaging in unhelpful or criminal behaviour including terrorism activity may decrease by further developing his “sense of confidence, competence and belonging through pro-social means”; such as education and employment.

72. [174]

    Dr Sweller concluded that the defendant’s motivation for engaging in a criminal lifestyle appeared “primarily related to thrill-seeking and a desire for attention and status amongst his peers.” His reported decision to distance himself from this lifestyle, may be “an attempt of impression management or may be indicative of a genuine lack of insight into the problematic influence others may have over his worldviews”.

73. [175]

    She concluded that, as the defendant’s motivation appears to be gaining release from custody, “his level of motivation for meaningful change as opposed to saying the ‘right’ things remains unknown and untested in a less restrictive environment”. His primary risk indicators included his network of family and friends who have been convicted of terrorism or national security offences, and his access to sources of help and susceptibility to influence from his peers. She concluded that his risk of engaging in politically motivated violence, violent extremism or terrorist activity rated in the “Moderate-High” risk range and the primary circumstances likely to escalate this risk relate to his peers and desire for status.

74. [176]

    Dr Sweller stated that, if considered suitable for an ESO, the defendant would benefit from intensive supervision and case management by the CSNSW THRO and NSW Police Force High Risk Terrorism Offender Units. Management may include: electronic monitoring, the obligation to provide weekly schedules of movement; reminder calls and texts to assist with meeting reporting obligations; monitoring and restrictions on online activity and communications; and, monitoring and restrictions on his associations and activities. She stated that supervision in the future should include consistent and immediate consequences for problematic behaviour, and transparency and accountability for minor breaches and violations. Dr Sweller noted that:

75. [177]

    Dr Sweller suggested that the defendant may benefit from engagement with the ESP to provide him with community support, and referral to a religious mentor who “promotes a grounded interpretation of religious beliefs”.

76. [178]

    In consideration of the present application Matthew Dredge, Unit Leader of the Terrorism High Risk Offender Unit within CSNSW prepared a report dated 4 September 2020. The report was endorsed by Shane Bagley, the Applications and Operational Governance Officer of the same Unit. Mr Dredge interviewed the defendant and his parents, and considered documentary material relating to the defendant’s criminal history, risk assessment and PRISM material, and CSNSW and Youth Justice records. What follows is drawn from Mr Dredge’s report.

77. [179]

    The defendant’s record of conduct in custody was poor for the first 18 months of incarceration, with later improvement. Between 14 April 2015 and 14 September 2016 the defendant incurred nine institutional offences, mainly for failing to comply with centre routine, unlawful use of a phone or fax, and intimidation. His tenth institutional offence was another incident of unlawfully using a phone or fax, on 17 February 2020. As an inmate with a “National Security Interest” designation, he was prohibited from speaking on the telephone in a language other than English, but did so on that date.

78. [180]

    There are reports of altercations with inmates or involvement in a hunger strike, with the most recent incident the physical altercation in January 2020. It seems that the defendant had discussed assaulting a particular inmate with his then cellmate, not because of any grievance that he had against the man, but because – in the context of hostility between racial and religious groups – the inmate had annoyed the defendant’s cellmate. When the inmate was transferred to the Dawn De Loas facility, a decision was made to target the man. The defendant reported that he got nothing from his participation in the assault other than a boost to his pride and ego, with part of his decision to participate being motivated by “criminal pride” at being “the guy who can’t get out” [of prison].

79. [181]

    The defendant has engaged in education and rehabilitation programmes in custody. In 2017, the defendant completed the EQUIPS Aggression and EQUIPS Foundation programmes and was positively assessed. He also began the PRISM programme that year, as noted above.

80. [182]

    He has undertaken some foundational studies with the University of Southern Queensland, preparatory to commencing a degree in science and physiology, but his transfer to another gaol prevented him from continuing with those studies.

81. [183]

    Employment opportunities have also been taken up by the defendant, and he has held some positions of trust within the prison, including as Wing Delegate at Wellington in 2018. At Bathurst the defendant is employed as Clerk for the Manager of Industries.

82. [184]

    Mr Dredge noted that, prior to entering the prison system, the defendant had not been the subject of any community based supervision. For the purposes of assessment for suitability to parole and release planning he had engaged co-operatively with Community Corrections, and accepted agreed recommendations.

83. [185]

    Mr Dredge referred to the defendant’s anti-social and anti-authoritarian history, as noted by Dr Sweller, and pointed to his history of associating with, and expressing admiration of, persons who held extremist views and endorsed violence.

84. [186]

    In custody the defendant has associated with other inmates with extreme and violent Islamist views. He participated in the assault on another inmate in January 2020, and has displayed disobedience to CSNSW staff based upon perceived grievances with them. In November 2019, the defendant expressed some continuing loyalty to his extremist associates, but more recently (in May 2020) claimed to have moved past those ideas, characterising them as connected to youthful naivety. His relationship with his brother, who maintains views supportive of violent extremism continues. It is regarded as a relationship that enhances the level of risk posed by the defendant.

85. [187]

    Since being transferred to Bathurst in February 2020 the defendant’s behaviour is said to have improved.

86. [188]

    Overall, Mr Dredge observed that:

87. [189]

    It is thought that the defendant tends to minimise and justify his anti-social conduct. Whilst his parents do not support extreme ideology, there is a concern that they too minimise the seriousness of the defendant’s past behaviour, blaming his conduct on his negative peer group.

88. [190]

    Despite that concern, the proposal for the defendant’s accommodation upon release is for him to live with his parents in Marsfield, Sydney. The defendant’s parents remain supportive of him, and are convinced that his liberty does not pose any risk to the community.

89. [191]

    If subject to an ESO the defendant can be supervised living at his parents’ home. The proposal is for him to be supervised by a designated officer, who would meet weekly with the defendant, and conduct monthly field visits, at a minimum. The defendant will be encouraged to engage with more socially useful activities and associates. The structure to the defendant’s supervision would be given by a series of exercises known as the “Practice Guide for Intervention” or “PGI”. Positive goals would be set with and for the defendant and strategies developed to assist him to meet the goals. There will also be further engagement with the PRISM programme intended to link the defendant with a community network of religious and other support which will encourage socially acceptable relationships and activities.

90. [192]

    A schedule of movements will be utilised to manage the risk posed by the defendant, whilst electronic monitoring will assist supervisors to ensure compliance with the schedules, and with place and travel restrictions that are likely to be imposed. Other suggested conditions will be directed to monitoring the defendant’s access to and use of his finances; encouraging education and employment; prohibiting particular associations with high risk individuals; preventing him from accessing weapons (including a car without prior approval); or using the internet or other means of communication to facilitate unacceptable relationships or conduct. It is proposed that the defendant be restricted from accessing extremist literature or other material, necessitating powers of search and seizure for supervising officers to monitor compliance.

91. [193]

    Psychological counselling is regarded by Mr Dredge as potentially useful, as is continued engagement with PRISM and similar programmes, such that conditions requiring the defendant to accept such treatment and counselling are important.

92. [194]

    The aim overall would be to encourage the defendant to develop a positive lifestyle in the community, and manage the risk he poses of committing a terrorism offence.

93. [195]

    Professor Barton has extensive experience in and knowledge of Islamic thought and social movements, and Islamic extremism. Having previously been based at the Asia-Pacific Centre for Security Studies in the United States, a college attached to the US Department of Defense, and at Monash University where he held a chair in Indonesian Studies, Professor Barton is now based at Deakin University. He has worked extensively in the area of Islamic extremism and international politics, including with the Global Terrorism Research Centre and the Hedayah Centre for countering violent extremism, where he is a non-resident Senior Fellow.

94. [196]

    Professor Barton has provided two expert reports, of 21 and 22 October 2020, providing information relating to some of those involved in extremist Islamic ideology or violent activism, and as to the doctrine and ideology underpinning the beliefs and actions of extremists. He has provided information as to some of the terminology commonly used by such individuals, such as “kafir” (plural kuffar), being a term for “unbelievers” which carries a derogatory undertone. He has also provided information concerning local groups and organisations with some connection to known terrorists, one such operating Bukhari House in Auburn, a place formerly frequented by the defendant and his associates. The professor also details the notorious careers of two now dead extremists for whom the defendant has expressed admiration in the past, Khaled Sharrouf and Mohamad Elomar.

95. [197]

    Ms Jackson is the Programme Manager with the ESP, a programme conducted by the Office of Community Safety and Cohesion within the Department of Communities and Justice. The ESP is an intervention programme directed at countering violent extremism in the community. It assists individuals to disengage from behaviours and influences that may lead to extremist violence.

96. [198]

    The defendant was referred to the ESP on 9 September 2020. A preliminary assessment has been conducted of him and he has been found eligible for participation in the programme. Any further assessment has been placed on hold pending the resolution of the State’s application for an ESO.

97. [199]

    The defendant provided the scoresheets and other related documentation connected with the administration of the VERA-2R assessments to the defendant.

98. [200]

    In cross-examination before the Court on 9 November 2020, Dr Sweller told the court that, for THRO assessments, experts rely on interviews with the individual, tests administered to him or her, and a review of documentation supplied to them, the documentation including prior psychometric assessments of the person.

99. [201]

    A statement has also been provided by Ahmed Kilani. Mr Kilani is employed as a Prison Muslim Chaplain by the Islamic Council of NSW and, in the course of that employment, he visits prisons across the state and provides pastoral and spiritual care to inmates, including those housed in the HRMCC. He has worked as a religious mentor for some 20 years, and as a Prison Chaplain, specialising in working with inmates convicted of terrorism or terrorism related offences for 6 of those 20 years. Mr Kilani has also advised government agencies on issues connected with “de-radicalisation” and disengagement from religious extremism. In 2016, he worked as the RSO with the PRISM programme.

100. [202]

     As part of his chaplaincy work, Mr Kilani first met the plaintiff in 2015 and saw him on 10 or 15 occasions between 2016 and 2020. He found the defendant to be a respectful and open individual, open to discussions with and guidance from him. Mr Kilani does not think that the defendant holds radical views. He said:

101. [203]

     Mr Kilani is of the view that the defendant is respectful of religious teachings, and appreciates that there can be legitimate differences of opinion in such matters. It is his opinion that:

The Submissions of the Parties

1. [204]

   The State submits that, taking the supporting material at its highest, as the Court must at this preliminary stage, the Court would be satisfied to the requisite standard that the defendant poses an unacceptable risk of committing a terrorism offence if not supervised.

2. [205]

   Reliance is placed on the defendant’s proved capacity for serious violence, including his use of a motor vehicle driven at a person as a weapon, and his recent participation in a group assault upon a fellow inmate; his past professed adherence to the ideology of extremist Islam; the evidence that points to the defendant’s plan to commit a terrorist act in 2014, perhaps as a “lone wolf”; and the risk assessment reports of Dr Sweller and Dr Pullman in particular.

3. [206]

   The defendant points to the evidence of his participation in education, employment and – particularly – the PRISM programme in custody to underscore his submission that, on the whole of the material, the Court could not be satisfied that the test at s 20(d) of the Act has been met.

4. [207]

   Issue is taken with the legitimacy of actuarial assessments as tools to accurately predict risk, with the defendant pointing to the differing results returned by various risk assessments, using the VERA-2 instrument conducted over the years of his incarceration to highlight the potential unreliability of such tests.

5. [208]

   The defendant also submits that he has only ever been convicted of one instance of serious violence, when he was aged 19, and regretted his involvement. He characterises his involvement in the January 2020 Dawn de Loas assault as in part motivated by a desire to reduce the severity of the attack, being minor in nature, and not involving any infliction of injury by him.

6. [209]

   The defendant concedes that he once held views consistent with extremist violent ideology. However, it is submitted that, when the whole of the material is carefully examined, with the passage of time since the index offences borne in mind, it is clear that the defendant has made significant progress away from criminality through his participation in and completion of rehabilitative programmes, including EQUIPS Foundation and EQUIPS Aggression, and his long term voluntary engagement with PRISM.

Determination

1. [210]

   In assessing the State’s application there are two important considerations informing that task. The first is the objects of the Act, provided by s 3:

2. [211]

   The second is that this is a preliminary hearing, and the Court proceeds on the basis provided by s 24(5) and s 27(b) of the Act, with orders to be made if the Court is “satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order”.

3. [212]

   There was considerable debate at the preliminary hearing about what can be taken from the supporting documentation, but it is not the task of the Court at this stage to assess and weigh the reliability of the evidence adduced by the State: State of New South Wales v Naaman (No 2) [2018] NSWSC 1329 at [36]; State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 at [91]–[103].

4. [213]

   It is worth extracting the principles given in the last of those decisions, Cheema (Preliminary), by Johnson J, in in full:

5. [214]

   The task is to apply the statutory test provided by s 24(5) and s 27(b), which involves a lower standard than that which will apply at a final hearing: State of New South Wales v Naaman (No 2) (2018) 276 A Crim R 30; [2018] NSWCA 328 at [17], in circumstances where the gravity of the risk as well as the likelihood of it manifesting are relevant considerations.

6. [215]

   The Court must be satisfied that the defendant poses the very particular sort of risk referred to, that of carrying out a serious terrorism offence. It is important to understand what that phrase means, drawn as it is from the Commonwealth Code.

7. [216]

   A "serious terrorism offence" is defined by s 4 of the Act as an offence against Part 5.3 of the Criminal Code (Cth) that carries a maximum sentence upon conviction of 7 years imprisonment or more. Relevant offences proscribed by Part 5.3 of the Code are:

8. [217]

   Whilst the Court must have regard to the whole of the evidence, there are some pieces of it that particularly inform the decision to be made.

9. [218]

   The evidence relating to the defendant’s activities in 2014 – 2015, if accepted, provides a clear and compelling basis to conclude that, at least at that time, the defendant posed a significant risk of carrying out the sort of attack contemplated by Part 5.3 of the Code, and that could or would have had catastrophic consequences for both individuals and society. A “lone wolf” attack of the sort urged on IS “soldiers” around the world would likely be intended to inflict the maximum number of casualties possible. As has been seen elsewhere in Australia and around the world, one individual in a motor vehicle can do untold damage in terms of lives lost and destroyed. That level of possible harm is so great that, even if the risk of it occurring is small, it is nevertheless unacceptable.

10. [219]

    Certainly the defendant has in the past resorted to serious violence, as he did when he deliberately ran down his victim in the reckless GBH offending, suggesting he has the capacity for acts of great violence. There is a risk that the defendant would act violently in support of extreme religious views.

11. [220]

    There is an issue as to whether the defendant holds views consistent with endorsement of a terrorist attack but, taking the State’s case on the basis that it can be proved, there is strong evidence that he does. Both Dr Pulman and Dr Sweller have expressed doubts as to the genuineness of the defendant’s professed change in attitude, considering that it may be better explained by image management and a desire to achieve his liberty. Dr Sweller in particular considered the defendant’s present professed views to be superficial, with other evidence, including the defendant’s participation in the January 2020 assault, pointing to maintenance of troubling religious and political ideology. Her assessment of the level of risk of extremist violence posed by the defendant is significant and cannot be lightly set aside, despite the issue taken with the validity of the assessment process, the latter not being a consideration for the Court at this preliminary stage. Accepting the assessment evidence, it functions as a warning of what may come.

12. [221]

    The concerns raised by Dr Pulman and Dr Sweller are given further weight by the defendant’s apparent concession to the Court that, despite his denials to authorities and therapists over a number of years, he in fact held extremist views prior to his imprisonment, and endorsed violence as a means to a religiously desirable end. If the defendant could maintain that denial over the years, his more recent appearance of co-operation with disengagement programmes could be quite hollow, as both Dr Pulman and Dr Sweller have postulated as a possibility.

13. [222]

    The defendant points to the positive aspects of the evidence: his completion of two EQUIPS programmes; his engagement with employment in custody and the expressions of regard to be found in the OIMS notes for his dedication as a worker; his keen desire to improve himself through tertiary education, and the studies he has undertaken to that end; the many complimentary entries concerning the defendant’s conduct to be found in the OIMS entries; and the overall very positive assessments of the defendant by PRISM staff. The report from Mr Kilani is also relied upon as establishing that the defendant is not a religious extremist.

14. [223]

    It is submitted that, when regard is had to the progress made by the defendant, and to the opinion of Mr Kilani, the Court could not be satisfied of those things necessary for preliminary orders to be made. However, it is not the Court’s present role to resolve conflicts or discordances in the evidence, or to determine which expert’s opinion is to be judged the more reliable.

15. [224]

    That task will be more readily carried out informed by the expert opinion that would follow the making of an order pursuant to s 24(5) of the THRO Act.

16. [225]

    Proceeding in the way the Court must at this preliminary stage, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, and it is appropriate to make the orders sought by the State. The weight of the evidence is that supervision of the defendant is necessary to manage the risk he presents in and to the community, and it is not appropriate in those circumstances to decline to impose an ISO in the exercise of the discretion given to the Court in the Act.

Proposed Conditions of the ISO

1. [226]

   In the event that the Court determined to make the orders sought, there was some dispute as to the detail of the conditions that would be imposed on the defendant. Most helpfully, the parties prepared a schedule of conditions with the areas of dispute highlighted, and relevant submissions noted. I express my gratitude for that material here, and for the good will that went into its production.

2. [227]

   Bearing in mind the nature of the risk to be managed, and having considered the competing submissions, the conditions imposed will – generally – be those sought by the plaintiff and, where relevant, those proposed by the defendant by way of alternative and accepted as adequate by the State.

3. [228]

   The following is noted with respect to particular proposed conditions.

4. [229]

   Condition 1: Although the defendant opposes it, a schedule of movements is a useful and necessary tool to manage risk and monitor compliance. The alternative proposed by the defendant would make it extremely difficult if not impossible for those supervising the defendant to do so effectively.

5. [230]

   Condition 3: As proposed by the defendant and agreed by the State.

6. [231]

   Condition 12: This condition has no present relevance. Should something along those lines later become relevant, it can be adequately addressed by condition 1, which requires the defendant to obey all reasonable directions of the enforcement officer (“EO”). It is noted that its deletion will lead to a consequential difference – by one number – in the imposed conditions to the proposed conditions, such that proposed conditions 13 – 54 will become imposed conditions 12 – 53.

7. [232]

   Condition 15: The alternative proposed by the defendant would not require the defendant to advise the EO that a person on a pre-approved list was staying overnight, preventing the EO from having an understanding of who was staying with the defendant and on what occasions. A greater degree of supervision is required. The condition will be imposed as sought.

8. [233]

   Condition 17: I accept the plaintiff’s submission that the defendant’s proposed alternative is unduly narrow and inflexible. It would invite debate about the nature and basis of the belief formed by the EO that would be unhelpful in managing risk.

9. [234]

   Condition 21: This condition is necessary to monitor compliance.

10. [235]

    Condition 31: The defendant’s proposal is adequate to manage risk; physical ailments do not have any relevance to the risk to be managed.

11. [236]

    Condition 32: Involvement in disengagement may well be of significance and will be retained in the condition imposed.

12. [237]

    Condition 33: This condition will be imposed as sought, although its breadth is narrowed to a degree by the amendment that will be made to proposed condition 32, as above.

13. [238]

    Condition 35: Although it is accepted that participation in mainstream education is ordinarily positive, the condition as proposed by the State has utility in allowing the EO to monitor the type of education undertaken and ensure that it is appropriate.

14. [239]

    Condition 39: The condition will be imposed as proposed by the State. An “inadvertent breach” if truly brought about by innocent act would not constitute a criminal offence, in that no mens rea would accompany the act. The amendment the defendant seeks is thus unnecessary.

15. [240]

    Condition 43: This is a prescribed condition and a necessary one in the Court’s view, particularly given that associations with extremists is a risk factor for the defendant.

16. [241]

    Condition 47: This condition is necessary to manage risk. Persons in custody or subject to an ICO that the defendant might wish to contact are persons clearly associated with heightened risk. The condition should not be diluted in efficacy by the proposed amendment.

17. [242]

    Condition 50: Imposed as sought – necessary to manage risk.

18. [243]

    Condition 52: Imposed as sought – necessary to manage risk.

19. [244]

    Conditions 53 and 54: The defendant’s suggested amendment to each condition would unduly narrow the application of each, potentially limiting the EO’s capacity to be aware of and intervene to prohibit potentially highly risky conduct. The condition will be made as sought by the State.

20. [245]

    The conditions of the interim supervision order form a schedule to these reasons.

ORDERS

1. [246]

   The Court makes the following orders:

   1. (1)

      An order pursuant to s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (“the Act”),

   2. (2)

      An order pursuant to s 27 of the Act, that the defendant be subject to an Interim Supervision Order commencing on 22 November 2020;

   3. (3)

      The parties are given liberty to approach the High Risk Terrorism List Manager to obtain a date for the final hearing of the State's application;

   4. (4)

      Having attended to order (3) the parties are to agree upon a timetable for the provision of expert reports to the Court; and for the filing and service of evidence and submissions;

   5. (5)

      A joint draft Short Minutes of Order that reflects those matters referred to in Orders (1)(a), (3), and (4) is to be provided to my Associate by close of business on 24 November 2020, for execution by the Court.

   6. (6)

      An order restricting access to the Court’s file in this proceeding such that access would be permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

   7. (7)

      Liberty to the parties to restore the matter to the list before the High Risk Offender List Judge.

PART A: SUPERVISION, MOVEMENTS & REPORTING

1. [1]

   The defendant must submit to the supervision and guidance of any enforcement officer responsible for the supervision of the offender for the time being and obey all reasonable directions of an enforcement officer (including in respect of providing a schedule of movements). (p)

2. [2]

   The defendant must be available for interview at such times and places as an enforcement officer (or the officer’s nominee) may from time to time direct. (p)

3. [3]

   The defendant must truthfully answer questions from an Enforcement Officer for the purpose of administrating this order about:

4. [4]

   The defendant must carry at all times a specified approved mobile phone and:

PART B: VEHICLES

1. [5]

   The defendant must not purchase, hire or drive any vehicle without the prior approval of an Enforcement Officer.

2. [6]

   The defendant must tell an Enforcement Officer of the colour, make, model and registration of any vehicle registered to the defendant or that the defendant intends to hire or drive.

PART C: FINANCIAL OVERSIGHT

1. [7]

   The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by an Enforcement Officer.

2. [8]

   The defendant must not enter into a transaction for more than $500, including through an agent or a third party, without informing an Enforcement Officer.

3. [9]

   The defendant must not transfer any funds outside Australia without informing an Enforcement Officer.

PART D: ELECTRONIC MONITORING

1. [10]

   The defendant must wear electronic monitoring equipment as directed and not tamper with, or remove, the equipment. (p)

PART E: ACCOMMODATION

1. [11]

   The defendant must live at an address approved by an enforcement officer and notify an enforcement officer of any intention to change the offender’s address or living arrangements. (p)

2. [12]

   The defendant must permit an enforcement officer to visit the offender at the offender’s residential address at any time and, for that purpose, to enter the premises at that address. (p)

3. [13]

   The defendant must be at his approved address between 9.00pm to 6.00am unless other arrangements are approved by an Enforcement Officer.

4. [14]

   The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of an Enforcement Officer. If another person that the defendant is approved to reside with permits a third party, whom does not reside at the address, to enter and remain, or to stay overnight, as soon as the defendant becomes aware of such third party’s presence in the home he must notify an Enforcement Officer.

5. [15]

   The defendant must not sign any lease, mortgage or hire agreement (e.g. storage facilities) without prior approval of an Enforcement Officer.

PART F: PLACE & TRAVEL RESTRICTIONS

1. [16]

   The defendant must not frequent or visit any place or district specified by an enforcement officer. (p)

2. [17]

   The defendant must not leave New South Wales except with the approval of the Commissioner of Corrective Services. (p)

3. [18]

   The defendant must not be in possession of any passports and must not attempt to apply for any passports.

4. [19]

   In addition to and without limiting any of the other conditions, the defendant must not go within 1km of Sydney and Bankstown Airports and Sydney Cove Passenger Terminal, or any point of departure for an international destination, except for the purpose of reporting to an Enforcement Officer as directed, attending upon a Community Corrections office in accordance with his approved schedule or as directed, or attending upon other government services in accordance with his approved schedule or as directed.

PART G: SEARCH & SEIZURE

1. [20]

   The defendant must submit to the search by an Enforcement Officer of the offender’s person and residence and the search and seizure of the offender’s vehicle, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under the offender’s control. (p)

2. [21]

   The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to the conditions of this order.

PART I: WEAPONS

1. [22]

   The defendant must not possess or use any of the following:

2. [23]

   The defendant must not possess or use any of the following, without an Enforcement Officer’s prior approval:

PART J: PSYCHOLOGICAL/PSYCHIATRIC ASSESSMENT, COUNSELLING & MEDICAL TREATMENT

1. [24]

   The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by an enforcement officer. (p)

2. [25]

   The defendant must notify an Enforcement Officer of the identity and address of any healthcare practitioner that he consults for mental health and related treatment.

3. [26]

   The defendant must attend, upon the direction of an Enforcement Officer, any therapy sessions, disengagement services, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan.

4. [27]

   The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with an Enforcement Officer.

PART K: EMPLOYMENT, VOLUNTEERING & EDUCATION

1. [28]

   The defendant must notify an enforcement officer of any intention to change the offender’s employment if practicable before the change occurs or otherwise at his next interview with an Enforcement Officer. (p)

2. [29]

   The defendant must not start on the offender’s own initiative any job, volunteer work or educational course without the approval of an Enforcement Officer. (p)

PART L: COMMUNICATON, INTERNET USE & ELECTRONIC DEVICES

1. [30]

   The defendant must obey any reasonable direction by an Enforcement Officer about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to internet and restrictions on deleting information). (p)

2. [31]

   The defendant must not use any of the following items unless disclosed and approved for use by an Enforcement Officer:

3. [32]

   The defendant must advise an Enforcement Officer of any change to any of the items listed above immediately.

4. [33]

   The defendant must not delete, attempt to delete or clear data held on any of the items listed above without the prior consent of an Enforcement Officer.

5. [34]

   The defendant must consent to an Enforcement Officer (or any other person requested by an Enforcement Officer) to remotely inspect any internet account used by the defendant in monitoring compliance with this Order.

6. [35]

   The defendant must provide the details of telephone numbers, service provider account numbers, email addresses and usernames, as well as any relevant passwords (including encryption codes) used by the defendant, and the nature and details of any internet connection used by the defendant, as directed.

7. [36]

   The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with an Enforcement Officer.

PART M: ASSOCIATIONS

1. [37]

   The defendant must not associate (including using third parties) with any person or persons specified by an Enforcement Officer, whether face to face or by written correspondence or electronic means. (p)

2. [38]

   The defendant must inform an Enforcement Officer of the identity of any person with whom he does, or is likely to, regularly associate.

3. [39]

   The defendant must not contact, attempt to communicate with, or otherwise associate or affiliate with other persons or with organisations advocating support for engaging in any terrorist acts.

4. [40]

   The defendant must not contact, attempt to communicate with, or otherwise associate or affiliate with any person held in custody or with any person he is aware is subject to a control order, on parole, or otherwise subject to a supervision order without prior approval of an Enforcement Officer.

5. [41]

   The defendant must obtain written permission from an Enforcement Officer prior to joining or affiliating with any club or organisation.

PART N: IDENTITY & APPEARANCE

1. [42]

   The defendant must not change his name or use any other name without notifying an Enforcement Officer. (p)

2. [43]

   The defendant must not obtain or change any form of identification without prior approval from an Enforcement Officer.

3. [44]

   The defendant must let an Enforcement Officer photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.

4. [45]

   The defendant must not significantly change his appearance without the prior approval of an Enforcement Officer.

PART O: EXTREMISM

1. [46]

   The defendant must not engage in any act or attempt to influence others to engage in any act, that would provide support for or promote extremist ideologies or acts of violence.

2. [47]

   The defendant must not purchase, possess, access, obtain, view, participate in or listen to:

   1. (1)

      any material that a reasonable person would understand to be:

   2. (2)

      material that a reasonable person would understand or suspect to be produced or distributed by a terrorist organisation.

   3. (1)

      articles, images, speeches or videos that promote hate speech or violent extremism;

   4. (2)

      statements or posts made on social media, chat rooms or blogs that encourage hate speech or violent extremism;

   5. (3)

      content encouraging people to commit acts of terrorism;

   6. (4)

      websites created or hosted by terrorist organisations;

   7. (5)

      terrorist training materials;

   8. (6)

      suspicious content regarding use or sale of chemicals online; and

   9. (7)

      videos or images of terrorist attacks or acts of violent extremism;

   10. (1)

       any written or printed material;

   11. (2)

       any picture, painting or drawing;

   12. (3)

       any carving, sculpture, statue or figure;

   13. (4)

       any photograph, film, video recording or other object or thing from which an image may be reproduced;

   14. (5)

       any computer data or the computer record or system containing the data; and

   15. (6)

       any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.

   16. (1)

       A garment search, being a search of any article of clothing worn by the defendant or in the defendant’s possession, where the article of clothing is touched or removed from the person’s body; and

   17. (2)

       A pat-down search, meaning a search of the defendant where the defendant’s clothed body is touched.

   18. (1)

       The action:

   19. (2)

       the action is done or the threat is made with the intention of advancing a political, religious or ideological cause;

   20. (3)

       the action is done or the threat is made with the intention of:

   21. (4)

       the action is not advocacy, protest, dissent or industrial action that is not intended to cause serious harm to a person, cause a person’s death, endanger the life of a person, or create a serious risk to the health and safety of the public.