State of New South Wales v White (No 1)

1. [1]

   By amended summons filed without objection at the hearing, the State sought interim supervision orders against Mr White under ss 27, 28 and 29 of the Terrorism (High Risk Offenders) Act 2017 (NSW), as well as orders under s 24 appointing a psychiatrist and a psychologist to examine him and furnish reports to the Court and directing him to attend such examinations. Orders restricting access to the file without prior leave of the Court were also sought.

2. [2]

   Mr White consented to the making of all of these orders, not disputing that in his circumstances, the Court has power to make the orders the State pressed. What was in issue between the parties was thus limited to a small number of the conditions of the interim supervision order which the State proposed.

3. [3]

   To establish its case the State relied on the affidavit evidence of Detective Inspector Benjamin Hopper; Mr Vincenzo Camporeale, solicitor; Ms Laura Byrne, Unit Leader attached to the Campbelltown Community Corrections office; Detective Sergeant Lukas Sywenkyj and Detective Senior Constable Justin Hewitt. No objection was taken to any of these affidavits and the deponents were not required for cross-examination. Mr White led no evidence.

4. [4]

   It was common ground that what is in issue must be resolved bearing in mind the approach discussed in Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65 at [53]-[54], there in the context of counterpart provisions of the Crimes (High Risk Offenders) Act 2006 NSW, where it was observed:

5. [5]

   Thus it was accepted in Wilde that while the appellant’s serious sex offences had no connection with any association with an outlaw motorcycle gang, there was no error in the imposition of conditions prohibiting the appellant’s association with such groups, they addressing relevant risk factors associated with his anti-social behaviours, which limited the prospect of his rehabilitation and re-integration into the community: at [69]-[70].

Interim orders must be made

1. [6]

   On the evidence I will discuss, I am satisfied that the parties’ common position as to the orders which should be made at this stage of these proceedings, must be accepted.

2. [7]

   This statutory scheme arose for consideration in State of NSW v Ceissman [2018] NSWSC 508. There Rothman J discussed the obvious similarities between the provisions of this scheme and the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW). Its objects are specified in s 3 to be:

3. [8]

   The parties’ common position reflects that the Terrorism (High Risk Offenders) Act empowers the Court to make extended supervision orders on the State’s application under s 22, in the circumstances specified in s 23(1) “in respect of an eligible offender who is in custody or under supervision:

4. [9]

   Such an application may not be made until the last 12 months of the offender’s current custody or supervision: s 23(2). Section 24 specifies the pre-trial procedures which must be observed. There is no issue that they have been satisfied in this case.

5. [10]

   An “eligible offender” is defined in s 7 to be a person who is:

6. [11]

   Mr White falls within the definition of “eligible offender”, the evidence establishing that he is aged 27 and presently on parole for an offence under s 195(1)(b) of the Crimes Act 1900 (NSW) of intentionally/recklessly damaging a property by fire, when he set a church at Taree alight, causing an estimated $200,000 damage. The maximum penalty for that offence was 10 years imprisonment.

7. [12]

   Section 14 specifies that the Act applies to eligible offenders such as Mr White, who is serving a sentence of imprisonment that commenced before the date of assent of the Act in December 2017. It was in December 2016 that Mr White was sentenced to imprisonment for 22 months commencing 18 September 2016, with a non-parole period of one year. He was released to parole in September 2017, with his sentence expiring on 17 July 2018. He also then received a two year s 9 bond for another offence under s 11C of the Summary Offences Act 1988 (NSW), of custody of a knife in a public place.

8. [13]

   On the evidence it appears that Mr White is also a “convicted New South Wales underlying terrorism offender” under s 9(1), which provides:

9. [14]

   That is because Mr White is currently supervised on detention for an indictable offence which falls within the definition of “serious offence” under s 9(2), his arson having caused serious damage to property (s 9(2)(d)) and because it was committed in “a terrorism context”, s 9(3) providing relevantly:

10. [15]

    The conclusion that Mr White’s offending fell within s 9(3) flows from evidence which included, in short, Mr White’s admitted longstanding history not only of association with and membership of right wing white supremacist groups, including the Right Wing Resistance of which he claimed in 2016 to hold the position of 2nd in command, but of violent offending in conjunction with his membership of these groups; that before he set fire to the church, Mr White had sent pictures of a burning church with inverted crucifixes to friends; that when he set the church on fire, Mr White was in company with Mr Brereton, who described Mr White as identifying with “Odinism”, meaning “there is no other religion than Valhalla”; that Right Wing Resistance flyers were left at the scene of the fire; that Mr White himself discussed during an electronically recorded police interview, in text and Facebook messages and during examinations by experts, matters such as his identification with Odinism, Norse pagan beliefs, neo-Nazism, white supremacist ideology and associated violent offending.

11. [16]

    Other evidence which sheds relevant light on this evidence includes that in 2014 Mr White and two others had used his mobile phone to make a series of threatening phone calls to the Sydney Jewish Museum, to make anti-Semitic threats of extreme violence and sexual assault against those who would later monitor the messages. He was also convicted of offences for these threats.

12. [17]

    Further light is shed on Mr White’s continuing adherence to his longstanding beliefs and conduct by his Facebook postings in 2018, contrary to his conditions of parole, which included pictures of a hooded person holding a lit Molotov cocktail.

13. [18]

    On this evidence Mr White would also appear to be "a convicted NSW terrorism activity offender" under s 10(1), given his current supervision on parole for his arson offence and he having in the past "made statements or engaged in other conduct involving advocating support for engaging in any terrorist acts": s 10(1)(c)(i).

14. [19]

    This flows from the definitions of the terms “terrorism activity” and “terrorist act”, which are defined in s 4 to mean:

15. [20]

    In the Criminal Code Act 1995 (Cth) Schedule “terrorist act” is defined in s 100.1 to mean:

16. [21]

    Subsections (2) and (3) provide:

17. [22]

    The Court’s power to make an extended supervision order against Mr White, is not in issue, s 20 providing:

18. [23]

    A “serious terrorism offence” is defined in s 4 to mean an offence against Part 5.3 of the Criminal Code (Cth) for which the maximum penalty is 7 or more years of imprisonment. Engaging in a “terrorist act” is such an offence under s 101.1 of the Code.

19. [24]

    Mr White thus accepted that:

20. [25]

    Further, Mr White accepted that it would also thus be found that he was “a terrorist offender”, for the purpose of the preliminary hearing and that it would be concluded that the Court could be satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious terrorism offence, if not kept under supervision: s 20(d)

21. [26]

    Section 21 provides that the Court is not required to determine that the risk of Mr White committing a serious terrorism offence “is more likely than not in order to determine that there is an unacceptable risk of the offender committing such an offence”. Section 25(2) requires that the safety of the community be the Court’s paramount consideration and s 25(3) specifies the matters to which the Court must have regard, in addition to other relevant matters, in coming to its determination, to be:

22. [27]

    It is s 27 which permits the Court to make an interim supervision order against Mr White, if it appears to the Court:

23. [28]

    That requires consideration of the requirements of s 20.

24. [29]

    There was also no issue between the parties that the unacceptable risk test which thus arises to be considered, like that imposed by the Crimes (High Risk) Offenders Act, requires assessment of the risk to the community: Lynn v State of NSW [2016] NSWCA 57 at [127]. In State of NSW v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 it was observed at [76] that “the question of adequate supervision will involve a consideration of the likelihood of any offending conduct during the period of supervision, and, if so, its likely gravity”.

25. [30]

    In Ceissman, Rothman J observed at [26]-[30]:

26. [31]

    Mr White has accepted that the evidence which the State led satisfied the statutory tests. I agree. The unchallenged evidence does justify the making of the interim supervision order to which Mr White consented, establishing to the required degree that the evidence, if proved, would justify the making of an extended supervision order, because he poses an unacceptable risk of committing a serious terrorism offence, if not kept under supervision by further order.

27. [32]

    That evidence includes not only the serious offences Mr White committed in 2014 and 2016, but that since going into custody, Mr White has participated in programs to address the addictions he has and the risks which he poses. In custody he purported to have reformed and resiled from some of his previously held beliefs, which the evidence suggests motivated his terrorist offending. Other evidence, however, including as to his conduct after release to parole, including relapse into former antisocial associations and the re-establishment of his Facebook page, contrary to the terms of his parole, where he posted a picture of a figure throwing a Molotov cocktail suggest, as the Crown argued, that his statements in custody must be approached with some scepticism.

28. [33]

    The May 2018 risk assessment report of the psychologist Ms Abreu, who interviewed Mr White, refers to self-reported past violence committed towards others because of their race, culture or sexuality, even though Mr White has a limited record of such offending. He then claimed that dots tattooed on his hands reflected those offences.

29. [34]

    Mr White also has a complex mental health history, including epilepsy; diagnosed Asperger’s syndrome, considered more likely to be PTSD; depression; suicide attempts; paranoid delusional thinking; persecutory ideation; lack of insight; alienation from others and admissions into psychiatric facilities.

30. [35]

    Mr White also reported commencing cannabis abuse at age 8, with involvement in white supremacy groups resulting in abuse of ecstasy, cocaine, acid and ice, resulting in his pursuit of violent behaviour.

31. [36]

    Mr White also has a record of weapons offences dating back to age 18, as well as breaches of bonds. He has also given a history of other uncharged offending, associated with his longstanding involvement with white supremacy groups. That includes having carried weapons since age 8, as well as involvement in the Cronulla and Macquarie Fields riots; and use of weapons such as knuckle dusters, Tasers, knives and guns. After his 2014 offences, search of his home firearms located only, however, imitation firearms.

32. [37]

    At age 18 two of Mr White’s custody of knife offences were dismissed under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), but the seriousness of his offending increased with his ongoing involvement in white supremacy groups.

33. [38]

    Ms Abreu noted that Mr White’s history included introduction to white supremacy ideology in childhood and subsequent involvement in violent offending, motivated by the desire to offend with this peer group. His history of membership of a number of white supremacist groups, included promotion of their ideology on Facebook and establishment of a band called Blitzkrieg 88, which practiced white supremacist punk rock.

34. [39]

    Ms Abreu also noted that Mr White professed no longer to identify with such groups, as the result of his experiences in custody and participation in programs there, but that he continued to identify with skin head style groups, as “a fun way of life”.

35. [40]

    While testing resulted in assessment of Mr White’s intellectual abilities falling into the average range and some aspects into the high average range, social cognition fell into the low average range. On previous assessment Mr White fell into the medium risk category for general and violent offending and on Ms Abreu’s assessment, into the low to medium range. Ms Abreu explained that:

36. [41]

    It was using the Violence Extremist Risk Assessment – version 2 revised tool, the limitations of which Ms Abreu explained, that Mr White was assessed as falling in the low-medium range, having regard to risks assessed by reference to his Facebook posts after release on parole. Ms Abreu observed:

37. [42]

    Ms Abreu considered that Mr White’s exposure to extremist ideology and violence from his childhood had a significant impact on his world view and had desensitised him to violence, resulting in his convictions and being the subject of a weapons prohibition order. She also identified protective factors, including ongoing family support, but considered that his ongoing consumption of alcohol could be problematic, because of the past association between his alcohol use and offending. He also had limited understanding of the association between his continued alcohol consumption and antisocial behaviour.

38. [43]

    Risk factors identified included Mr White’s personality characteristics of excitement seeking and impulsivity, which predisposed him to involving himself in the extremist arm of the white supremacist subculture, without engaging in consequential thinking. His tattoos visibly identified him with that ideology and a sense of belonging and camaraderie motivated his ongoing involvement in such groups.

39. [44]

    Ms Abreu also considered that Mr White was at risk of mental deterioration, given his history and dependence on family relationships. Indicators of such increased risks were identified. Potential serious mental health concerns were also identified, as were partial protective factors, including an ongoing willingness to participate in available programs.

40. [45]

    Ms Abreu concluded that:

41. [46]

    There was also a risk management report from Corrective Services, which described Mr White’s superficial engagement with supervision during his release from custody on parole; the issue of formal directions about his use of Facebook; his compliance with psychiatric treatment plans; attendance at appointments; and incurring a number of charges. The risk management plan proposed for Mr White was there outlined and its limitations explained.

42. [47]

    The evidence thus establishes that Mr White’s offending behaviour has been longstanding and considerably more serious than his criminal record reflects. It has become more serious over time, in circumstances where he has not complied with conditions of supervision in the past, or while currently on parole for his terrorism related offending and that he has serious ongoing mental health issues and a history of considerable substance abuse. Mr White’s ongoing adherence to his involvement in white supremacist groups, with which he has connections since childhood and which has been implicated in his prior violent offending, all supports the conclusion that he poses relevant ongoing risks to the safety of the community.

43. [48]

    In the result, I am satisfied that the parties’ common position, that the State has met the onus which falls upon it, should be accepted and an interim supervision order made.

The disputed conditions

1. [49]

   The State proposed conditions of supervision including electronic monitoring; reporting; schedules of movements; accommodation; place and travel restrictions; employment, finance and education; drugs and alcohol; non-association; weapons; vehicles; internet and electronic communications; search and seizure; access to violent and extremist material; personal details and appearance; and medical intervention and treatment.

2. [50]

   Amendments to some of those conditions were agreed at the hearing. In issue remained only the proposed conditions as to electronic monitoring and a schedule of movement, in terms:

3. [51]

   There was no issue as to condition 8 which provided:

4. [52]

   It was argued for Mr White that conditions reflecting those of his current parole were adequate to manage the risk which he posed, pending the hearing of the application for final supervision orders and that it was premature to increase the stringency of that supervision, pending the further assessments which it was agreed that the Court should order. In advancing that submission, reliance was placed on the State’s capacity to seek a variation or increase in the conditions of his supervision, in the event of any non-compliance with the conditions which the Court now imposed.

5. [53]

   Mr White also relied on Ms Abreu’s risk assessment, particularly her view that he fell in the low to medium range for extremist violence and that his immediate presentation did not indicate imminence of risk, but that ‘his access and pathway to a trajectory toward significantly increasing his risk may require some moderation or intervention”, to submit that the disputed conditions would not be imposed upon him, as a part of the balance which the Court had to arrive at.

6. [54]

   It was also submitted, in the alternative, that the Court could impose on Mr White a condition requiring him to keep charged, carry and answer his mobile phone, which together with the provision of a schedule of movements, would be adequate to manage the risks which he posed, in the way discussed in Wilde.

7. [55]

   That was not accepted by the Crown, which argued that this would not only be labour intensive and expensive, but an unreliable condition, given the evidence of Mr Wilde’s poor compliance with his conditions of parole and further, that it would not be adequately responsive to the true nature of the risks of further terrorism offending which the evidence established he posed, given his relevant history.

8. [56]

   I have considered the disputed conditions in light of the evidence, considered together with the other conditions which the parties have agreed; the relevant statutory provisions I have discussed and the test discussed in Wilde. There was emphasised the need to consider “the risk of future offending of the type which was the basis of the order”, in this case offending amounting to terrorism.

9. [57]

   As Button J did in State of NSW v Keith Farringdon [2018] NSWSC 874 at [46], I have also borne in mind that it can be expected that the Departmental supervising officer responsible for Mr White’s supervision will approach those responsibilities “in a common sense way, informed by a practical and constructive exercise of discretion”.

10. [58]

    I have concluded that the balance which the Court must achieve in the conditions of supervision imposed upon Mr White by the interim supervision order, requires that the disputed conditions be imposed on Mr White. I have been swayed to this conclusion by the evidence as to:

11. [59]

    In the latter respect, if the circulation of those photographs was an indicator of the serious arson offence which Mr White soon afterwards committed while he was disinhibited as the result of intoxication, it must be accepted that his resumption of alcohol abuse and posting of a person throwing a Molotov cocktail on his Facebook page, contrary to directions given to him under the conditions of his parole, were disturbing developments. They cannot be ignored when the risks which Mr White poses are assessed and when the parties’ competing position as to the conditions to be imposed on Mr White, to manage these risks, are resolved.

12. [60]

    In my view those developments provide powerful support for the case which the Crown advanced in relation to the disputed conditions and preclude the conclusion that the conditions Mr White suggested in relation to his mobile phone, would be adequate to managed the risks which he poses

13. [61]

    While Ms Abreu concluded that Mr White’s immediate presentation did not indicate the imminence of risk, given her assessment that the level of his risk fell within the low to medium range, she also considered that “his access and pathway to a trajectory toward significantly increasing his risk may require some moderation or intervention”.

14. [62]

    The evidence establishes that the conditions of Mr White’s parole did not sufficiently modify that trajectory with the result, I am satisfied, at this interim stage of this application, pending Mr White’s further assessment in accordance with the orders which I will now make, that the more stringent conditions for which the State contended must be imposed upon him, so as to adequately manage the risks of further terrorism related offending, which he undoubtedly now poses.

Orders

1. [63]

   For these reasons, I make the following orders:

   1. (1)

      Pursuant to s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (“the Act”), the Court:

   2. (2)

      Pursuant to s 27 of the Act, the defendant be subject to an Interim Supervision Order commencing on 17 July 2018; and

   3. (3)

      Pursuant to s 28(1) of the Act, the Interim Supervision Order be for a period of 28 days; and

   4. (4)

      Pursuant to s 29(1) of the Act, direct that the defendant comply with the conditions set out in the Schedule.

   5. (5)

      Access to the Court’s file in this proceeding to a non-party is permitted only with the prior 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.