State of New South Wales v Mustapha (Final)

1. [1]

   By amended summons filed on 1 February 2022, the State of New South Wales (“the State”) seeks an extended supervision order (“ESO”) against the defendant, Mr Mejid Mustapha, under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“THRO Act”).

2. [2]

   The defendant is a 34-year-old man with a history of both general and violent offending. His head sentence of 3 years and 4 months for a series of violence and intimidation offences, committed against NSW Police and Corrective Services officers in August 2018 (“the index offences”), expired on 7 December 2021.

3. [3]

   The State initially filed a summons on 7 September 2021 seeking a continuing detention order (“CDO”) in relation to the defendant. As required by s 38 of the THRO Act, a preliminary hearing was conducted before Walton J on 12 and 26 November 2021.

4. [4]

   The order was opposed by the defendant. It was contended, inter alia, that the Risk Assessment Report (“RAR”) required under the THRO Act, did not meet its statutory requirements. On 6 December 2021, Walton J made orders placing the defendant on a 28-day interim detention order (“IDO”) and orders appointing a qualified psychiatrist and a registered psychologist to prepare reports about the defendant.

5. [5]

   The IDO was then renewed on 16 December 2021 to take effect from 4 January 2022, with a further renewal made on 1 February 2022 to take effect from 2 February 2022.

6. [6]

   As a result of the expert evidence contained in the reports ordered by Walton J (from Dr Katie Seidler dated 18 January 2022 and Dr Sathish Dayalan dated 21 January 2022), the State filed the amended summons seeking an ESO in lieu of a CDO.

7. [7]

   In submissions filed on 7 February 2022, senior counsel for the defendant indicated that the defendant consents to leave to file the amended summons being granted. Further, the defendant consents to the ESO sought being made upon the conditions in the amended summons. The defendant does not object to the evidence tendered by the plaintiff and does not tender any evidence himself.

8. [8]

   It is well accepted that for the purposes of the THRO Act as well as the Crimes (High Risk Offenders) Act 2006 (NSW) (“CHRO Act”), when an order for supervision or detention is not opposed by the person affected, it is nonetheless necessary for the Court to be satisfied that the statutory prerequisites for the making of the order have been met. Accordingly, although the orders are consented to, it is not appropriate that I simply enter consent orders without further consideration. Both parties submitted that I would follow the approach of Bellew J in State of NSW v Elomar (No 3) [2018] NSWSC 1234. I have read that decision and propose to adopt a similar approach as taken by his Honour.

The THRO Act

1. [9]

   The objects of the THRO Act are set out in s 3:

2. [10]

   Part 2 of the THRO Act (ss 19-32) concerns ESOs and Pt 3 of the THRO Act (ss 33-49) concerns CDOs. “Serious terrorism offence” is defined in s 4 of the THRO Act as an offence against Pt 5.3 of the Criminal Code Act 1995 (Cth) for which the maximum penalty of 7 or more years of imprisonment applies. Part 5.3 of the Criminal Code is headed “Terrorism” and contains a number of such offences.

3. [11]

   The Court may make an order under the THRO Act in relation to an “eligible offender”. An eligible offender is defined under s 7 as a person who is aged 18 years or older and is serving (or is continuing to be supervised or detained under the THRO Act after serving) a sentence of imprisonment for a NSW indictable offence. A NSW indictable offence is an offence against the law of the State for which proceedings may be taken on indictment (whether or not they may also be taken otherwise than on indictment): s 4(1), THRO Act.

4. [12]

   I am satisfied that the defendant is an eligible offender. It was not contended otherwise. He is over 18 years of age and is currently subject to an IDO made after serving a term of 3 years and 4 months in prison for a series of violence and intimidation offences, committed against NSW Police and Corrective Services officers in August 2018.

5. [13]

   Section 25(1) of the THRO Act provides that the Court may determine an application for an ESO by either making an ESO or by dismissing the application.

6. [14]

   Section 20 of the THRO Act provides that the Court may make an order for an ESO in respect of an eligible offender if:

7. [15]

   It was not in dispute that the defendant is currently in custody under an existing interim detention order. I am satisfied that this first statutory precondition is met.

8. [16]

   Section 23 of the THRO Act sets out the requirements with respect to an application for an ESO. An application for an ESO may be made only in respect of an eligible offender who is in custody or under supervision while serving a sentence of imprisonment for a NSW indictable offence, or under, inter alia, an existing interim detention order. Such an application may not be made until the last 12 months of the offender’s current custody or supervision. An application must be supported by documentation that addresses each of the matters referred to in s 25(3) of the THRO Act, and that includes a report prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert that assesses the likelihood of the eligible offender committing a serious terrorism offence.

9. [17]

   It was accepted that the State’s application had been made in accordance with Pt 2 of the THRO Act. I am satisfied that this second statutory precondition is met.

10. [18]

    Section 10 of the THRO Act defines a “convicted NSW terrorism activity offender” as follows:

11. [19]

    Under s 100.1 of the Criminal Code (incorporated under s 4(1) of the THRO Act), a terrorist act is defined as an act done or a threat made with the intention of advancing a political, religious or ideological cause by coercing, or influencing by intimidation the government of a state, territory or country, or intimidating the public or a section of the public. The relevant act must be one that causes serious physical harm or death to a person, serious damage to property, endangers the life of a person other than the offender, creates a serious risk to the health or safety of the public or a section of the public or seriously interferes with, disrupts or destroys an electronic system. That definition is broad and encompasses a range of preparatory offences and acts falling short of actual terrorist acts which cause injury to persons or damage to property: State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 at [187].

12. [20]

    The State relies on subs 10(1)(c) in relation to the defendant, read together with s 10(1A)(a)(ii) and (iii) (as clarified during the final hearing before me). That subsection applies regardless of whether or not the offender has been convicted of an offence for the conduct concerned: s 10(2), THRO Act. Thus, it is not necessary for the person to have been convicted of an offence connected with terrorism: State of NSW v Naaman (No 2) [2018] NSWCA 328 (“Naaman”) at [22].

13. [21]

    Section 10(1A) provides that the following conduct falls within the ambit of subs 10(c):

14. [22]

    In determining whether the defendant is a convicted NSW terrorism activity offender under s 10, the Court may have regard to the factors set out in s 11 of the THRO Act. Those considerations are as follows:

15. [23]

    I am satisfied that the threshold under s 10(1)(c) of the THRO Act has been established based on the supporting documentation.

16. [24]

    It is this fourth statutory precondition which requires a consideration of the supporting material. The Court may only impose an ESO if it is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision.

17. [25]

    The term “unacceptable risk” is not defined in the THRO Act, although s 21 provides that the Supreme Court is not required to determine that the risk of an eligible offender 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.

18. [26]

    In Naaman, the Court of Appeal set out the requirements of s 20(d) at [29]. The phrase "unacceptable risk" should be given its everyday meaning within its context and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Beazley P at [58], with whom Gleeson JA agreed). The test is an evaluative one and requires the exercise of discretionary judgment: Lynn at [82] (Basten JA). In State of New South Wales v Pacey (Final) [2015] NSWSC 1983, Harrison J observed (at [43]):

19. [27]

    Section 25(2) and (3) set out a number of mandatory considerations to which I must have regard when determining whether or not to make an ESO. Section 25(2) provides that in determining whether or not to make an ESO, the safety of the community “must be the paramount consideration of the Supreme Court.” The other mandatory considerations (in addition to any other matter considered relevant) are set out in s 25(3)(a)-(m) as follows:

20. [28]

    It is commonplace that a considerable amount of supporting material is placed before the Court in support of applications under the THRO Act and the CHRO Act. That material is directed at this fourth statutory precondition: the question of unacceptable risk. This then requires such material to be summarised for the purposes of providing reasons. Only one lever arch folder was tendered in support of the present application.

21. [29]

    Given the approach of the parties, and the course adopted by Bellew J in Elomar, I do not propose to summarise all of the material before me. I do, however, need to refer to the conclusions of the court-appointed experts and the Risk Assessment Report as well as providing some background in relation to the defendant and his criminal history.

The supporting documentation

1. [30]

   The State relied upon a folder of supporting material including the following:

   1. (1)

      Reports of court-appointed experts Dr Katie Seidler, psychologist, dated 18 January 2022 and Dr Sathish Dayalan, psychiatrist, dated 21 January 2022;

   2. (2)

      Risk Assessment Report by Filipa Abreu dated 20 July 202 with her Supplementary Risk Assessment Report dated 31 August 2021;

   3. (3)

      Risk Management Report by Shane Bagley dated 16 August 2021;

   4. (4)

      Section 25(3)(d) Report by Plain Clothes Senior Constable Jimmy Wang dated 19 August 2021;

   5. (5)

      Report of Dr Rodger Shanahan dated 27 May 2021; and

   6. (6)

      Inmate Profile Document dated 20 January 2022.

2. [31]

   The defendant did not rely upon any evidence at the final hearing.

The defendant’s personal circumstances

1. [32]

   The defendant is 34 years old. He was born in Sydney in 1987. He was raised in Merrylands. When he turned 14 years of age, he learned for the first time that the couple whom he had believed all of his life to be his parents were in fact his aunt and uncle. His biological mother is Lebanese and his father Samoan. He does not know his father. His upbringing was a stable one without incident until learning of his adoptive status. He has described to the experts how this realisation left him confused and with a fractured sense of identity.

2. [33]

   The defendant left school in Year 8 or 9 and became employed in cement rendering for approximately two years. Regrettably, he became addicted to a number of illicit drugs during that time which made his continued employment difficult.

3. [34]

   The defendant was married in an Islamic marriage for one to two years in his early 20s. His drug use led to a marital breakdown.

4. [35]

   The defendant was raised in the Islamic faith but, as his adoptive parents have explained, he did not practise his religion to a significant degree until after he was incarcerated. His religious beliefs are now a significant aspect of his self-identity and purpose.

5. [36]

   In September 2015, he tried to travel to the Syrian border (via Malaysia) but when he arrived in Gaziantep (on the Turkish/Syrian border) he was taken into custody by Turkish authorities and deported back to Australia because they believed he, as a foreigner, was attempting to enter Syria. He claimed his reason for doing so was to help refugees in camps there.

6. [37]

   The defendant’s criminal history comprises predominantly violence and drug-related offences, commencing when he was a juvenile. His drug offending has been of a low-level, the defendant having received fines in 2012, 2016 and 2018.

7. [38]

   On 5 March 2018, the defendant committed the offence of recklessly inflicting grievous bodily harm upon a male person known to him. This occurred late in the evening at the victim’s home, where, after a conversation, he struck him and then kicked him in the head.

8. [39]

   On 6 April 2018, the defendant was arrested and charged with the reckless grievous bodily harm offence and released on conditional bail.

9. [40]

   On 7 August 2018, the defendant was arrested at his home for breaching his bail conditions for the reckless grievous bodily harm offence. He was conveyed to Parramatta Police Station where he committed a series of offences, the index offences, against police and Corrective Services staff.

10. [41]

    When the defendant was asked to remove his hoodie by officers, he became verbally abusive and swore in Arabic, in addition to referring to one of the officers by his Indian race. He then physically assaulted one of the officers and made the following threats:

11. [42]

    Throughout this course of offending, the defendant’s various mobile phones and a computer hard drive were seized and examined by the police. The hard drive was seized from the defendant’s home during execution of a search warrant. The circumstances of the location of that hard-drive, together with an overlap in the type of material found on it and on the defendant’s mobile phone devices, indicate that the hard-drive and its contents were possessed by the defendant.

12. [43]

    Significantly, examination of these devices revealed that, at least from December 2017, the defendant possessed violent extremism material in the form of audio teachings, as well as Islamic State related content (including videos, pictures, audio recordings). Also, according to a Cellebrite examination of the defendant’s mobile phone seized from him at the time of his arrest on 7 August 2018, the defendant possessed Nasheed ringtones on his mobile phone in late July 2018.

13. [44]

    Further, between at least late July and 7 August 2018, the defendant operated a Facebook account, on which he posted comments, pictures and videos predominantly relating to religious teachings and interpretation and including some violent extremism content. He also operated an Instagram account which included such material.

14. [45]

    In December 2018, the defendant was sentenced for the index offences he committed on 7 August 2018, to an aggregate sentence of 3 years and 4 months imprisonment, with a non-parole period expiring on 7 December 2020 and a head sentence expiring on 7 December 2021.

15. [46]

    On 10 October 2019, the defendant was convicted and sentenced in the Local Court for the reckless grievous bodily harm offence. He was sentenced to a fixed term of imprisonment commencing on 22 July 2019 and expiring on 21 October 2020.

Expert evidence

1. [47]

   Ms Filipa Abreu, Senior Psychologist provided RAR dated 20 July 2021 for the purposes of commencement of the proceedings. She conducted her assessment on the basis of file information only as the defendant did not consent to take part in the assessment process. She noted his family circumstances, drug and criminal history, behaviour in custody and beliefs and summarised them as follows:

2. [48]

   Her executive summary also included the following:

3. [49]

   Dr Seidler interviewed the defendant by way of audio-visual link (“AVL”) on 12 January 2022. Despite some “audio skips” she found the defendant to be pleasant and amicable. She did not consider him to demonstrate overt evidence of significant psychopathological symptomatology. Doctor Seidler noted that the defendant has a history of violent offending primarily directed at authority figures. She noted that although he has never been convicted of a terrorism related offence, he did make statements to victims of the index offences that had racial overtones and made reference to Islamic State. He is also engaged in other behaviours whilst in custody that have raised concern about his ideology and possible affiliations.

4. [50]

   Dr Seidler observed that the defendant has not had a period on parole after being released from his first period of imprisonment nor participation in offence- focussed programming. Nor has he demonstrated the capacity to abstain from illicit drug use and manage his anger when at liberty in the community. His family have been a source of stress for him in the past. Dr Seidler suggested that a two-year ESO would be appropriate. She also noted the limitations of risk assessment but used the VERA 2R risk assessment tool which is a violent extremism risk assessment.

5. [51]

   Dr Seidler’s conclusion was as follows:

6. [52]

   As for the proposed orders, Dr Seidler considered them appropriate in terms of maximising compliance, minimising risk and assisting in his prosocial transition to community living.

7. [53]

   Dr Dayalan interviewed the defendant by way of AVL on 13 January 2022. The defendant told him that he was firmly opposed to the idea of engaging in any countering violent extremism programmes. He explained that he got upset by some questions during the assessment to determine his suitability for such programmes. He believes that he is not required to attend such programmes because his offences were not terrorism related.

8. [54]

   As with Dr Seidler, Dr Dayalan utilised the VERA 2R violent extremism risk tool. He was of the opinion that the defendant presents with a number of indicators associated with elevated risk of engaging in violent extremism as per that tool. He opined that the defendant’s risk of engaging in acts of violent extremism will vary depending upon his circumstances and mental state. The risk of such behaviour would increase in the context of heightened distress due to any perceived injustice. Further, his tendency to interpret interactions in a religiously persecutory manner increases the likelihood of experiencing such perceived injustices. He went on to state the following:

9. [55]

   Dr Dayalan concluded that Mr Mustapha's risk of committing a serious terrorism offence can be managed in the community under an ESO provided the conditions are sufficiently stringent to allow for close monitoring of his activities (including online activities), mental state, any substance use and association with others whilst facilitating engagement in interventions aimed to address the risk indicators of relevance. He found the defendant’s refusal to engage in treatment or rehabilitation programmes of some concern. The defendant’s prospects of doing so would be better if they were provided by third parties such as a private psychologist or non-governmental organisation. He recommended an ESO of three years’ duration

10. [56]

    I have had regard to the Risk Management Report of Shane Bagley on behalf of Corrective Services NSW dated 16 August 2021 and a s 25(3)(d) report from Plain Clothes Senior Constable Jimmy Wang from the High Risk Terrorist Offenders Unit, Counter Terrorism and Special Tactics Command within the New South Wales police force dated 19 August 2021. Both reports go into some detail as to the appropriate conditions the defendant should be subjected to under an ESO. It is not necessary for me to summarise those reports as it seems that their recommendations have been incorporated in the conditions that are proposed on behalf of the state and consented to by the defendant.

Conclusion

1. [57]

   Having regard to all of the matters I have summarised above, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not supervised. In reaching that conclusion, I have given paramount consideration to the safety of the community: s 25(2) of the THRO Act. I have also had regard to the mandatory factors enumerated in s 25(3) of the THRO Act, where relevant. I have already noted, in general terms, the opinions of the court appointed experts as well as the risk assessment and risk management reports prepared in connection with this application by both Corrective Services NSW and a prescribed terrorism intelligence authority.

2. [58]

   In addition to the opinions of the court appointed experts, I have had particular regard to the defendant’s propensity for violence, the fact that he does not accept the secular law of Australia over religious doctrine and has a strong sense of grievance against those in authority. I have no doubt that he adheres to violent Islamist ideology. I have based this conclusion on his past associates, the fact that he travelled to the Syrian border in 2015, that material was found on his mobile phone that could be described as violent Islamist ideology and his refusal to engage in treatment programs in custody.

3. [59]

   Section 29 of the THRO Act provides that I may direct the defendant to comply with such conditions as I consider appropriate. The conditions that I impose must be specifically designed to address issues relevant to the currently identified risk factors in relation to the commission of a serious terrorism offence, rather than general offending. Moreover, such conditions cannot be unjustifiably onerous or simply punitive.

4. [60]

   In imposing supervision conditions, the Court must be mindful that it is an offence to breach a condition of an ESO. Accordingly, the State must demonstrate that there is a proper basis for the making of the conditions in the first place. It is also important that the conditions are in clear terms so that the defendant knows what he must do and what he must refrain from doing.

5. [61]

   I have had regard to the suggested conditions. I am satisfied that they are not unjustifiably onerous or simply punitive. I am also satisfied that they are specifically designed to address issues relevant to the defendant’s risk factors in relation to the commission of a serious terrorism offence.

ORDERS

1. [62]

   Accordingly, I make the following orders:

   1. (1)

      Pursuant to ss 20, 25(1)(a), 26(6) and 39(1)(a) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”), I order that the defendant be subject to an Extended Supervision Order for a period of 3 years from 14 February 2022.

   2. (2)

      Pursuant to s 29(1) of the Act, I direct the defendant to comply with the conditions set out in Schedule A to these orders for the term of the Extended Supervision Order referred to in Order 1 above.

   3. (3)

      Pursuant to s 42(1)(c) the Terrorism (High Risk Offenders) Act 2017 (NSW), the Interim Detention Order in respect of the defendant made on 1 February 2022 expires on the commencement of the Extended Supervision Order in Order 1 above.

   4. (4)

      Access to the Court's file in this proceeding is restricted such that access would be permitted to a non-party only by 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.