State of New South Wales v Osman

1. [1]

   HIS HONOUR: By an amended summons filed in court on 16 February 2021, the State of New South Wales seeks an extended supervision order for a period of three years against Maywand Osman on conditions annexed to the summons pursuant to the Terrorism (High Risk Offenders) Act 2017 (“the Act”).

2. [2]

   On 19 November 2020, Wilson J made orders pursuant to s 24(5) of the Act appointing a qualified psychiatrist and a registered psychologist to examine Mr Osman: see State of New South Wales v Osman [2020] NSWSC 1646. The medical opinions of the appointed specialists are referred to later in these reasons. Her Honour also made an order pursuant to s 27 of the Act subjecting Mr Osman to an Interim Supervision Order (“ISO”) commencing on 22 November 2020. As the result of extensions made since then, the ISO is due to expire on 23 February 2021.

3. [3]

   Having regard to the constrained time frame within which I have been required to hear and determine this application, I have limited my consideration in what follows to matters that are of importance to the parties to this litigation. Accordingly, I consider that a familiarity with her Honour Wilson J’s reasons for judgment will be of considerable assistance and is assumed for present purposes

4. [4]

   Mr Osman was born in December 1993 and is currently 27 years old. He is of Afghan heritage and grew up in Marsfield, a suburb of Sydney. His parents migrated to Australia around 30 years ago. He has a brother who is three years older, Milad bin Ahmad-Shah Al-Ahmadzai (“Milad”). Milad is currently serving a term of imprisonment at the High Risk Management Correctional Centre at Goulburn for a number of serious offences.

5. [5]

   Mr Osman’s offending history is relevantly as follows.

6. [6]

   On 12 September 2012, at the age of 18, Mr Osman was placed on a s 10(1)(b) bond for 18 months on a charge of goods in custody suspected of being stolen. On 8 August 2013, whilst still subject to the bond, Mr Osman was charged with one count of affray contrary to s 93C of the Crimes Act 1900 and one count of recklessly causing grievous bodily harm in company contrary to s 35 of the Crimes Act. The offences arose out of incidents at Macquarie University and Parramatta. Mr Osman was sentenced on 18 November 2016 to a total term of imprisonment of 5 years and 3 months commencing on 23 August 2015 and expiring on 22 November 2020, with a non-parole period of 2 years commencing 23 August 2015 and expiring on 22 August 2017. These are referred to as the index offences. On 5 September 2014, whilst on bail for the index offences, Mr Osman was found in possession of a stolen cheque in the sum of $1,000, and charged with goods in custody, for which he was convicted on 18 June 2015 and fined $400.

7. [7]

   Although not part of his history of offending, Mr Osman came to the attention of the Australian Federal Police during 2014 as a member of a group of men being investigated for their involvement in domestic terrorist acts, foreign incursions into Syria and Iraq and the funding of terrorist organisations. In December that year, Mr Osman was placed on an Interim Control Order under s 104.4 of the Criminal Code 1995, the court being satisfied that making the order would substantially assist in preventing a terrorist act. Mr Osman breached that order very shortly after it was made.

8. [8]

   Finally, on 27 January 2021, whilst subject to the ISO, Mr Osman was convicted of destroy or damage property to the value of less than $2,000, contrary to s 195(1)(a) of the Crimes Act. This incident arose out of a domestic dispute with his father on Australia Day.

9. [9]

   Section 20 of the Act provides as follows:

10. [10]

    It is accepted by Mr Osman, and I am otherwise satisfied, that he is an eligible offender within the meaning of s 7 of the Act, that he is a convicted NSW terrorism activity offender within the meaning of s 10 and s 20(c) of the Act and that the present application is made in accordance with Part 2 of the Act. Although the question of whether Mr Osman poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision was not put in contest in the proceedings before me, I am nonetheless required independently of any such concession by Mr Osman to be satisfied to a high degree of probability that he in fact poses such a risk.

11. [11]

    Determination of the present application is governed, among other considerations, by s 25 of the Act, which is relevantly as follows:

Section 25(3)(a)

1. [12]

   In accordance with the statutory regime, I have been helpfully informed by the expert opinions provided in this case by Dr Kerri Eagle and Ms Chelsey Dewson.

2. [13]

   Dr Eagle prepared an extensive and detailed report dated 4 February 2021. It is not possible conveniently or practically to refer to it in full. The following extracts give a helpful and adequate summary of Dr Eagle’s opinions:

3. [14]

   Ms Dewson’s report, dated 5 February 2021, is similarly comprehensive. It included the following passages:

Section 25(3)(b) and (c)

1. [15]

   Mr Osman participated in approximately seven hours of interviews with Dr Sweller who produced a Risk Assessment Report dated 14 August 2020. Dr Sweller’s conclusions and recommendations included the following:

2. [16]

   Dr Sweller assessed Mr Osman as having a medium risk of general offending and a moderate risk of violent reoffending. His overall risk profile for extremist violence was assessed to be in the moderate-high range.

3. [17]

   Dr Pullman interviewed Mr Osman on 19 September 2019 and provided a report dated 2 October 2019. She supplemented her report with one dated 29 May 2020. Her views included the following:

Section 25(3)(j) and (k)

1. [18]

   The circumstances of the index offence are conveniently and uncontroversially summarised in the State’s written submissions, to the following effect.

2. [19]

   In August 2013, Mr Osman was a student at Macquarie University, together with Sahil Dalst and Haron Osmany. On 7 August 2013, an altercation broke out between Mr Osman, a co-offender Mustafa Darage and Mr Dalst. Mr Osman and Mr Darage punched Mr Dalst over thirty times. While most of the punches connected with his arms and body, Mr Osman’s final punch hit Mr Dalst above his left eye. Mr Osman told him, “Tell Haron he’s next”, before running from the scene. These facts were the basis of an offence of affray on a Form 1.

3. [20]

   Later that day, Mr Osman and Mr Darage arranged to meet Mr Osmany in Parramatta to “sort out some differences between them”. Mr Osmany came to the meeting with two associates. Mr Osman attended with “a number of other males … some of whom were armed with baseball bats and poles”. Mr Osman threw a punch towards Mr Osmany. One of the men with Mr Osmany fired a small firearm a number of times at the ground. Mr Osman, Mr Darage and their associates then left. The facts gave rise to an offence of affray.

4. [21]

   Mr Osman and Mr Darage then drove in Mr Osman’s car in search of Mr Osmany and his companions. While travelling past them, Mr Osman said something to Mr Osmany. Mr Osman then accelerated sharply, ran through some red lights and then drove down the wrong side of the road towards Mr Osmany. Mr Osman’s car collided with Mr Osmany and threw him several metres. Mr Osman’s car then collided with a parked car and a car coming in the opposite direction. Mr Osman and Mr Darage were injured. Mr Osmany suffered numerous injuries, including a shattered tibia in both legs, a shattered femur in the right leg and a dislocated shoulder. These facts give rise to the offence of recklessly causing grievous bodily harm in company.

5. [22]

   Mr Osman pleaded guilty to the index offences on the first day of his trial. On 19 November 2016, Judge Sides QC found that each offence was premeditated and not impulsive. His Honour said of the second offence:

6. [23]

   Having regard to the injuries sustained by Mr Osmany, and other matters, his Honour found the grievous bodily harm offence to be a little below the middle of the range of objective seriousness. At the time of the offences, Mr Osman was subject to a s 10 bond for the earlier conviction for goods in custody.

7. [24]

   His Honour found that Mr Osman’s poor behaviour at school and in gaol, his breach of the s 10 bond, and breach of bail for the control order offences suggested that he had “a problem with conforming to social norms and expectations including expectations of those in authority”. His Honour also noted Mr Osman’s problem with controlling his anger on occasions.

8. [25]

   Taking into account the family support that was said to be available to Mr Osman, and material suggesting that he had “matured”, the Court was satisfied that Mr Osman’s prospects of rehabilitation and not reoffending were reasonable.

9. [26]

   More recently, on 11 January 2021, Mr Osman was involved in a group assault on an inmate in a kitchen area while in gaol. Although he initially denied his involvement, Mr Osman later agreed he had been involved, noting that the motivating factor was his “sense of status and leadership within the group”. Mr Osman also admitted to being calculating in arranging the assault in that he took note of where the cameras were located on the way to the kitchen, saying he “liked having control of the group of boys as it earned him respect”. No internal conduct charges were laid against him. Mr Osman has most recently been classified as C1 minimum security.

Section 25(3)(d) and (e)

1. [27]

   A Corrective Services NSW "Risk Management Report" dated 4 September 2020 details the extent to which Mr Osman can be reasonably and practicably managed in the community, should an ESO be imposed. The report relevantly refers to risk factors as follows:

2. [28]

   Mr Osman has an identified tendency to justify his behaviour and minimise the significance of his offending, including in terms of the explanations offered for institutional misconduct. The report noted that "this particular risk will need to be monitored and challenged if he were supervised in the community. Close scrutiny of the relationship dynamic with his parents, other family members and peers is vital".

3. [29]

   Subject to the Court making an ESO and imposing requisite conditions, the risk management plan includes:

   1. (1)

      Mr Osman's proposed accommodation at his parents' home in Marsfield (assessed as suitable);

   2. (2)

      A supervision plan involving weekly in person contact with his "Enforcement Officers" and minimum monthly field visits, monitoring of associations and engagement in treatment for "violent behaviour and risks relating to violent extremism";

   3. (3)

      A 12-week transition assisted by the PRISM program, post release to assist Mr Osman's reintegration (including linking with the NSW Communities and Justice Engagement and Support Program (ESP));

   4. (4)

      A weekly schedule of movements to assess and manage the risks associated with movements, activities and associates, and ensure his attendance at relevant activities and appointments;

   5. (5)

      Electronic monitoring to ensure Mr Osman's adherence to his schedule of movements, considered "essential" to managing Mr Osman effectively;

   6. (6)

      The use of travel and place restrictions (managed through electronic monitoring);

   7. (7)

      Conditions enabling enforcement officers to monitor Mr Osman's finances to ensure any suspicious transactions are identified, and that approval is obtained prior to participating in employment, educational courses or volunteer work (given Mr Osman's association risks);

   8. (8)

      Strict conditions concerning "non-association". In this respect the report noted that:

   9. (9)

      Firearms and weapon prohibition conditions, given Mr Osman's "capacity to use improvised means to inflict violence when he used a motor vehicle to inflict serious injury on a victim", as well as a requirement as to approval for Mr Osman's use of vehicles;

   10. (10)

       A series of restrictions relating to Mr Osman's use of electronic communications and internet access, given his susceptibility to influence, history of forming negative associations and issues relating to impulsivity;

   11. (11)

       Search and seizure conditions;

   12. (12)

       Given Mr Osman's history of violent extremist associations, conditions prohibiting Mr Osman from engaging in any act or attempting to influence others to engage in any act that would provide support for or promote extremist ideologies or acts of violence;

   13. (13)

       Restrictions as to Mr Osman's change of appearance or form of identity; and

   14. (14)

       Conditions requiring Mr Osman to undergo psychological or psychiatric counselling as directed (among others concerning psychological and psychiatric assessment, counselling and medical treatment).

4. [30]

   Mr Osman indicated to the authors of the report that he "agreed with the recommended parole conditions and proposed management plans".

Section 25(3)(h)

1. [31]

   Mr Osman is considered to engage in behaviour that pushed boundaries and that this amounted to a vulnerability likely to increase his likelihood of violating conditions that may be imposed upon him.

Section 25(3)(i)

1. [32]

   Mr Osman breached the terms of an ICO imposed on 17 December 2014 within days of it coming into effect. The sentencing judge considered that his behaviour, and the fact that he was on bail at the time of the breaches, showed “a clear lack of insight into his obligations both as a person on bail and a person subject to a control order”. His Honour considered that Mr Osman had “deliberately thumb[ed] his nose at the control order and the authorities who imposed it”.

2. [33]

   When he was subject to the ISO, Mr Osman received two warnings for breaching conditions relating to having an overnight visitor and electronic communication. These breaches were minor in the overall scheme of the control regime.

Section 25(3)(l)

1. [34]

   Mr Osman is a Sunni Muslim who identifies as Salafi. His initial commitment to Islam apparently occurred at the age of 19, significantly and perhaps predictably when housed at the HRMCC at Goulburn. He reported increasing his general level of religious knowledge at that time and openly volunteered that his religious influences were “AA” classification offenders convicted of national security offences. Mr Osman disclosed to psychologists associated with the PRISM service that he was exposed to a range of hostile anti-government attitudes and general discussions regarding proscribed terrorist organisations such as Al-Qaeda and so-called Islamic State while he was housed at Goulburn.

Section 25(3)(m)

1. [35]

   On a number of occasions in 2014, in the course of Operation Appleby, the police intercepted telephone calls between Mr Osman and a series of individuals who were then or who have since been involved in or convicted of terrorism offences. These past associations are extensive and have been similarly documented. Concerns about the possible revival of these associations are at the heart of the current application by the State for the imposition of an extended supervision order.

Consideration

1. [36]

   Mr Osman, by his counsel in both written submissions and orally, made what I consider to be an appropriate and uncontroversial concession having regard to the evidence in this case that it is open to me to find that he poses an unacceptable risk of committing a serious terrorism offence. He also indicated that the primary issue in dispute was the terms of any conditions that may be attached to any extended supervision that may be imposed. Mr Osman’s concession does not, and cannot, displace the statutory precondition that before I am able to make an extended supervision order I must 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.

2. [37]

   The primary object of the Act is relevantly to provide for the extended supervision of offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community. It remains important, however, if such an order is made, that in imposing conditions the Court needs to strike a balance between the competing considerations of community interests and personal liberty: conditions must not be unjustifiably onerous or punitive and should be as unobtrusive as possible.

3. [38]

   Having regard to the evidence before me, I am satisfied to a high degree of probability that Mr Osman poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision. The professional medical opinion in this case speaks with one voice. Even though Mr Osman has not committed a terrorism offence, or demonstrated a current inclination or tendency to do so, Mr Osman has what might be considered to be a well-documented history of associations with people who have. That may in many circumstances be considered to be of no particular significance. However, in Mr Osman’s case, the evidence suggests that his personality and predispositions are such that he is, or at least may be, particularly vulnerable to the influences of such individuals. It is unfortunate in this regard that one such person is Mr Osman’s brother with whom he might understandably be expected to have or to want to cultivate an ongoing filial relationship.

4. [39]

   Although not referred to by the experts in these terms, I glean from the several professional opinions expressed that Mr Osman is easily led, and has a desire to be seen by his peers as deserving or worthy of respect and admiration. He appears to yearn for status and recognition within group settings. These are not characteristics that are of themselves dangerous or problematic. Nor are they characteristics for which Mr Osman should be criticised or condemned. However, for better or worse, Mr Osman has an historical connection with the group of offenders identified in the course of Operation Appleby whose potential ability to influence Mr Osman and to exploit his vulnerabilities remains a matter of serious concern.

5. [40]

   The authorities are replete with detailed consideration and assessment of the concepts of “high degree of probability” and “unacceptable risk”. My assessment of the first of these must necessarily be informed by the expert opinions with which I have been provided. In this respect I should observe that I was significantly assisted by the written opinions and oral evidence of each of the court appointed experts. Both were cross-examined but not to the point, nor apparently with the purpose, of causing them substantially to resile from or amend their views. By way of example, Dr Eagle has opined that Mr Osman has some high risk indicators as well as some risk mitigating factors. On balance she was of the view that Mr Osman remains at risk of committing a serious terrorism offence unless kept under supervision.

6. [41]

   I consider that there is a low to moderate risk of Mr Osman committing a serious terrorism offence if not kept under supervision. However, and importantly, the catastrophic consequences of the materialisation of that risk lead me to conclude that whatever may be the accurate quantification or assessment of the risk, it remains wholly unacceptable. I am therefore satisfied, to a high degree of probability, that Mr Osman poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision. I consider that the risk is clearly unacceptable when regard is had to the subject matter of that risk, being the commission of a serious terrorism offence, considered in the context of the primary purpose of the Act.

7. [42]

   I have been provided with competing submissions concerning the Conditions that should be imposed upon Mr Osman in the event that an Extended Supervision Order is made. I have taken careful note of these views in coming to my conclusions about the conditions that should apply.

8. [43]

   The authorities make it clear, and the evidence before me specifically supported the fact, that a common sense approach must be taken to both the formulation and enforcement of appropriate conditions. Conditions that are too restrictive may operate counterproductively by imperilling the development of an harmonious working relationship between Mr Osman and any enforcement officers with whom he is required to work. It would clearly be both counterproductive and potentially unfair if conditions were imposed that operated in a way that exposed a person such as Mr Osman to the highly likely, if not inevitable, prospect of failure. It is critically important for Mr Osman, and anyone in his position, that the choice of, and the monitoring of compliance with, conditions attaching to an extended supervision order should not inadvertently increase the chances of non-compliance and hence failure. On the other hand, the statutory paramountcy of the protection of the community requires the maintenance of an ongoing scheme that ensures that a person such as Mr Osman can be monitored and directed in a way that as far as possible provides enforcement officers with sufficient notice and information to foresee and act upon problems before they arise.

9. [44]

   In attempting to strike a balance between these matters, I have modified the conditions for which the State contends but not as much as Mr Osman has suggested.

10. [45]

    Both Dr Eagle and Ms Dewson consider that a three-year extended supervision order will assist Mr Osman to transition further through “stages of change” and assist with his integration into the community. Ms Dewson considers that it would be important for the restrictiveness of the conditions to reduce over time in response to positive behaviour, intervention engagement and supervision compliance. Mr Osman has submitted that a review of the OIMS material provides little comfort that such a graduated change will take place in the absence of a set of orders reflecting such a graduation. He contended that the Crown’s proposed orders, before the amendments made by me, make no such concession and that an alternative to a graduated set of conditions would be a reduction of the term from three years to a shorter period.

11. [46]

    I consider that the proposal for a three year term has merit in this case, particularly having regard to the modifications I have made to the conditions. A close analysis of the conditions suggests that, subject to a settling in period, the otherwise apparently onerous and intrusive nature of the conditions is less than appears at first sight and will in any event be likely to recede in practice over time. Mr Osman has shown a commendable recent ability, as evidenced by the history of SMS communication between him and enforcement officer Stela Ilijevska, to conform to the conditions recently imposed. On the basis of that material, I suspect strongly that such compliance by him is likely to continue.

Orders and directions

1. [47]

   I make the following orders:

   1. (1)

      Order that Maywand Osman be subject to an Extended Supervision Order for a period of 3 years from 23 February 2021, subject to the conditions in the Schedule to these reasons.

   2. (2)

      Direct Maywand Osman to comply with the conditions set out in the Schedule to these reasons for the period of the Extended Supervision Order.